S. HRG. 109–13

NATIVE HAWAIIAN GOVERNMENT

REORGANIZATION ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

S. 147

TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE

UNITED STATES RELATIONSHIP WITH NATIVE HAWAIIANS AND TO

PROVIDE A PROCESS FOR THE RECOGNITION BY THE UNITED STATES

OF THE NATIVE HAWAIIAN GOVERNING ENTITY

MARCH 1, 2005

WASHINGTON, DC

(
NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT
U.S. GOVERNMENT PRINTING OFFICE

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99–723 PDF 2005

S. HRG. 109–13

NATIVE HAWAIIAN GOVERNMENT

REORGANIZATION ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

S. 147

TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE

UNITED STATES RELATIONSHIP WITH NATIVE HAWAIIANS AND TO

PROVIDE A PROCESS FOR THE RECOGNITION BY THE UNITED STATES

OF THE NATIVE HAWAIIAN GOVERNING ENTITY

MARCH 1, 2005

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman

BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

MICHAEL D. CRAPO, Idaho

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JEANNE BUMPUS, Majority Staff Director

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 147, text of ........................................................................................................... 3

Statements:

Akaka, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 41

Apoliona, Haunani, chairperson, Board of Trustees, Office of Hawaiian

Affairs ............................................................................................................ 51

Bennett, Mark, attorney general, State of Hawaii ........................................ 46

Case, Hon. Ed, U.S. Representative from Hawaii ......................................... 42

Danner, Jade, director, Government Affairs and Community Consultation, Council for Native Hawaiian Advancement ....................................... 55

Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice chairman,

Committee on Indian Affairs ....................................................................... 40

Faleomavaega, Hon. Eni F.H., U.S. Delegate from American Samoa .......... 43

Hall, Tex, president, National Congress of American Indians ..................... 53

Kane, Micah, chairman, Hawaiian Homes Commission ............................... 51

Kitka, Julie, president, Alaska Federation of Natives .................................. 53

Lingle, Linda, Governor, from Hawaii ............................................................ 46

McCain, Hon. John, U.S. Senator from Arizona, chairman, Committee

on Indian Affairs ........................................................................................... 1

APPENDIX

Prepared statements:

Abercrombie, Hon. Neil, U.S. Representative from Hawaii .......................... 63

Aina, Nellie ....................................................................................................... 197

Apio, Leialoha ................................................................................................... 196

Apoliona, Haunani (with attachment) ............................................................ 69

Burgess, H. William, attorney ......................................................................... 88

Case, Hon. Ed, U.S. Representative from Hawaii ......................................... 64

Conklin, Kenneth R., Ph.D. ............................................................................. 94

Crowell Jr., Harold K., ..................................................................................... 184

Crowell, MaryAnn ............................................................................................ 185

Danner, Jade (with attachment) ..................................................................... 99

Danner, Robin Puanani, president and CEO, Council for Native Hawaiian

Advancement ................................................................................................. 104

Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice chairman,

Committee on Indian Affairs ....................................................................... 65

Fyfe, Kai’opua, director, The Koani Foundation ............................................ 106

Gaui, Michelle K. .............................................................................................. 193

Garcia-Ballard, Li, president, Native Hawaiian Economic Alliance ............ 107

Hall, Tex (with attachment) ............................................................................ 108

Huihui, Lavaina ................................................................................................ 192

Inouye, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 65

Johnson, Hokuala ............................................................................................. 112

Johnson, Rubellite Kawena Kinney ................................................................ 113

Kai, Ka’onohi Keali’iokapo ............................................................................... 118

Kama Jr, Herman Kahalenani ........................................................................ 119

Kama, Luana Na’mi ......................................................................................... 120

Keppeler, H.K. Bruss, chairman, Government Relations Committee, Native Hawaiian Chamber of Commerce ........................................................ 121

Kuroiwa Jr., James Isamu ............................................................................... 123

Lagon, Olin Kealoha, chief executive officer, Hawaiian Homestead Technology, Inc. .................................................................................................... 126

Lau, Brandi Ka’ala, vice president, Council for Native Hawaiian Advancement ............................................................................................................... 127

Laughlin, Michael ............................................................................................. 189
Page

IV

Prepared statements—Continued

Lee Loy, Emmett E., attorney (with attachment) .......................................... 128

Lingle, Linda, Governor, from Hawaii ............................................................ 66

Loa, Chief Maui, Hou Band of Native Hawaiians of the Blood of Hawaii

(with attachment) ......................................................................................... 152

Loui, Miriam P., president, NHBA Board of Directors ................................. 179

Mokiao, Raymond and Annie ........................................................................... 186

Nahoopii, Daniel K. .......................................................................................... 180

Nakoa, Austin P., chairman, Native Hawaiian Economic Alliance .............. 182

Naleieha, Abigail L. .......................................................................................... 183

Namu’o, Clyde W., administrator, Office of Hawaiian Affairs (with letters) ................................................................................................................ 198

Oshiro, Lisa C. .................................................................................................. 456

Peahi Jr., Apela ................................................................................................ 458

Richards, Paul Pakahanui ............................................................................... 459

Rodrigues, Joe ................................................................................................... 461

Sang Sr., Anthony H., chairman, State Council of Hawaiian Homestead

Associations (with attachment) .................................................................... 462

Sang, Dawn K. .................................................................................................. 191

Sang, JoAnn U. ................................................................................................. 188

Sang, Roy Kaleo ................................................................................................ 190

Schoettle, Walter, R., attorney (with attachment) ......................................... 465

Young, Candy .................................................................................................... 187

Young, Elaine .................................................................................................... 195

Young, Stephan ................................................................................................. 194

Additional material submitted for the record:

Kanahele, Pu’uhonua Dennis Bumpy, lecture by Professor Francis Anthony Boyle on December 28, 2004 ............................................................. 484

Letters ............................................................................................................... 498
(1)

NATIVE HAWAIIAN GOVERNMENT

REORGANIZATION ACT

TUESDAY, MARCH 1, 2005

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 10 a.m. in room 485,

Russell Senate Building, Hon. John McCain (chairman of the committee) presiding.

Present: Senators McCain, Akaka, and Dorgan.

STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM

ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. Good morning. Please take your seats and we

will begin the hearing on time.

I am pleased to convene this hearing this morning on S. 147, the

Native Hawaiian Government Reorganization Act of 2005, which

my friends from Hawaii, Senators Akaka and Inouye have worked

so hard to advance. I might add that Senator Inouye is ill this

morning. I got a call from him. He is a little under the weather,

and so he will not be here this morning, but he obviously has a

very longstanding commitment and involvement on this issue.

S. 147 legislates a process whereby Native Hawaiians can re-constitute a governmental entity. The history of the Hawaiian Islands

and their annexation in the United States is not one of the shining

moments in our history. That said, my reservations with this legislation have been reported more widely, in fact, than I anticipated.

First, I want to be sure that the recognition of a Native Hawaiian

government is not inconsistent with any understanding or agreements at the time of statehood in 1959. My staff on the Indian Affairs Committee has been researching this issue and I am sure others have been doing that as well.

Second, I think the bill should not be read to release the State

of Hawaii of any liabilities it has incurred or any obligations that

it undertook as part of the statehood process.

Finally, I feel that the resources are currently available to the

Bureau of Indian Affairs, the Indian Health Service and other Federal agencies conducting Indian programs are already inadequate

to meet the needs of Indian people. We want to be very careful

about spreading it any thinner than they already are with the addition of a large population of new program recipients.

I look forward to addressing these issues this morning. I understand that there are many people who have asked to testify today
2

who we could not accommodate, including the Association of Hawaiian Civic Clubs. Regrettably, although our committee invited

the Department of Justice to testify, they chose not to send a witness to today’s hearing. I hope we can get the Administration’s

views on this bill at a later time.

[Text of S. 147 follows:]
3

1

II

109TH CONGRESS

1ST SESSION S. 147

To express the policy of the United States regarding the United States

relationship with Native Hawaiians and to provide a process for the

recognition by the United States of the Native Hawaiian governing

entity.

IN THE SENATE OF THE UNITED STATES

JANUARY 25, 2005

Mr. AKAKA (for himself and Mr. INOUYE) introduced the following bill; which

was read twice and referred to the Committee on Indian Affairs

A BILL

To express the policy of the United States regarding the

United States relationship with Native Hawaiians and

to provide a process for the recognition by the United

States of the Native Hawaiian governing entity.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Native Hawaiian Gov5 ernment Reorganization Act of 2005’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—
4

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•S 147 IS

1 (1) the Constitution vests Congress with the au2 thority to address the conditions of the indigenous,

3 native people of the United States;

4 (2) Native Hawaiians, the native people of the

5 Hawaiian archipelago that is now part of the United

6 States, are indigenous, native people of the United

7 States;

8 (3) the United States has a special political and

9 legal responsibility to promote the welfare of the na10 tive people of the United States, including Native

11 Hawaiians;

12 (4) under the treaty making power of the

13 United States, Congress exercised its constitutional

14 authority to confirm treaties between the United

15 States and the Kingdom of Hawaii, and from 1826

16 until 1893, the United States—

17 (A) recognized the sovereignty of the King18 dom of Hawaii;

19 (B) accorded full diplomatic recognition to

20 the Kingdom of Hawaii; and

21 (C) entered into treaties and conventions

22 with the Kingdom of Hawaii to govern com23 merce and navigation in 1826, 1842, 1849,

24 1875, and 1887;
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•S 147 IS

1 (5) pursuant to the Hawaiian Homes Commis2 sion Act, 1920 (42 Stat. 108, chapter 42), the

3 United States set aside approximately 203,500 acres

4 of land to address the conditions of Native Hawai5 ians in the Federal territory that later became the

6 State of Hawaii;

7 (6) by setting aside 203,500 acres of land for

8 Native Hawaiian homesteads and farms, the Hawai9 ian Homes Commission Act assists the members of

10 the Native Hawaiian community in maintaining dis11 tinct native settlements throughout the State of Ha12 waii;

13 (7) approximately 6,800 Native Hawaiian fami14 lies reside on the Hawaiian Home Lands and ap15 proximately 18,000 Native Hawaiians who are eligi16 ble to reside on the Hawaiian Home Lands are on

17 a waiting list to receive assignments of Hawaiian

18 Home Lands;

19 (8)(A) in 1959, as part of the compact with the

20 United States admitting Hawaii into the Union,

21 Congress established a public trust (commonly

22 known as the ‘‘ceded lands trust’’), for 5 purposes,

23 1 of which is the betterment of the conditions of Na24 tive Hawaiians;
6

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•S 147 IS

1 (B) the public trust consists of lands, including

2 submerged lands, natural resources, and the reve3 nues derived from the lands; and

4 (C) the assets of this public trust have never

5 been completely inventoried or segregated;

6 (9) Native Hawaiians have continuously sought

7 access to the ceded lands in order to establish and

8 maintain native settlements and distinct native com9 munities throughout the State;

10 (10) the Hawaiian Home Lands and other

11 ceded lands provide an important foundation for the

12 ability of the Native Hawaiian community to main13 tain the practice of Native Hawaiian culture, lan14 guage, and traditions, and for the survival and eco15 nomic self-sufficiency of the Native Hawaiian people;

16 (11) Native Hawaiians continue to maintain

17 other distinctly native areas in Hawaii;

18 (12) on November 23, 1993, Public Law 103–

19 150 (107 Stat. 1510) (commonly known as the

20 ‘‘Apology Resolution’’) was enacted into law, extend21 ing an apology on behalf of the United States to the

22 native people of Hawaii for the United States’ role

23 in the overthrow of the Kingdom of Hawaii;

24 (13) the Apology Resolution acknowledges that

25 the overthrow of the Kingdom of Hawaii occurred
7

5

•S 147 IS

1 with the active participation of agents and citizens

2 of the United States and further acknowledges that

3 the Native Hawaiian people never directly relin4 quished to the United States their claims to their in5 herent sovereignty as a people over their national

6 lands, either through the Kingdom of Hawaii or

7 through a plebiscite or referendum;

8 (14) the Apology Resolution expresses the com9 mitment of Congress and the President—

10 (A) to acknowledge the ramifications of the

11 overthrow of the Kingdom of Hawaii;

12 (B) to support reconciliation efforts be13 tween the United States and Native Hawaiians;

14 and

15 (C) to consult with Native Hawaiians on

16 the reconciliation process as called for in the

17 Apology Resolution;

18 (15) despite the overthrow of the government of

19 the Kingdom of Hawaii, Native Hawaiians have con20 tinued to maintain their separate identity as a dis21 tinct native community through cultural, social, and

22 political institutions, and to give expression to their

23 rights as native people to self-determination, self24 governance, and economic self-sufficiency;
8

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•S 147 IS

1 (16) Native Hawaiians have also given expres2 sion to their rights as native people to self-deter3 mination, self-governance, and economic self4 sufficiency—

5 (A) through the provision of governmental

6 services to Native Hawaiians, including the pro7 vision of—

8 (i) health care services;

9 (ii) educational programs;

10 (iii) employment and training pro11 grams;

12 (iv) economic development assistance

13 programs;

14 (v) children’s services;

15 (vi) conservation programs;

16 (vii) fish and wildlife protection;

17 (viii) agricultural programs;

18 (ix) native language immersion pro19 grams;

20 (x) native language immersion schools

21 from kindergarten through high school;

22 (xi) college and master’s degree pro23 grams in native language immersion in24 struction; and

25 (xii) traditional justice programs, and
9

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•S 147 IS

1 (B) by continuing their efforts to enhance

2 Native Hawaiian self-determination and local

3 control;

4 (17) Native Hawaiians are actively engaged in

5 Native Hawaiian cultural practices, traditional agri6 cultural methods, fishing and subsistence practices,

7 maintenance of cultural use areas and sacred sites,

8 protection of burial sites, and the exercise of their

9 traditional rights to gather medicinal plants and

10 herbs, and food sources;

11 (18) the Native Hawaiian people wish to pre12 serve, develop, and transmit to future generations of

13 Native Hawaiians their lands and Native Hawaiian

14 political and cultural identity in accordance with

15 their traditions, beliefs, customs and practices, lan16 guage, and social and political institutions, to con17 trol and manage their own lands, including ceded

18 lands, and to achieve greater self-determination over

19 their own affairs;

20 (19) this Act provides a process within the

21 framework of Federal law for the Native Hawaiian

22 people to exercise their inherent rights as a distinct,

23 indigenous, native community to reorganize a Native

24 Hawaiian governing entity for the purpose of giving
10

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•S 147 IS

1 expression to their rights as native people to self-de2 termination and self-governance;

3 (20) Congress—

4 (A) has declared that the United States

5 has a special responsibility for the welfare of

6 the native peoples of the United States, includ7 ing Native Hawaiians;

8 (B) has identified Native Hawaiians as a

9 distinct group of indigenous, native people of

10 the United States within the scope of its au11 thority under the Constitution, and has enacted

12 scores of statutes on their behalf ; and

13 (C) has delegated broad authority to the

14 State of Hawaii to administer some of the

15 United States’ responsibilities as they relate to

16 the Native Hawaiian people and their lands;

17 (21) the United States has recognized and re18 affirmed the special political and legal relationship

19 with the Native Hawaiian people through the enact20 ment of the Act entitled, ‘‘An Act to provide for the

21 admission of the State of Hawaii into the Union’’,

22 approved March 18, 1959 (Public Law 86–3; 73

23 Stat. 4), by—

24 (A) ceding to the State of Hawaii title to

25 the public lands formerly held by the United
11

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•S 147 IS

1 States, and mandating that those lands be held

2 as a public trust for 5 purposes, 1 of which is

3 for the betterment of the conditions of Native

4 Hawaiians; and

5 (B) transferring the United States’ respon6 sibility for the administration of the Hawaiian

7 Home Lands to the State of Hawaii, but retain8 ing the authority to enforce the trust, including

9 the exclusive right of the United States to con10 sent to any actions affecting the lands that

11 comprise the corpus of the trust and any

12 amendments to the Hawaiian Homes Commis13 sion Act, 1920 (42 Stat. 108, chapter 42) that

14 are enacted by the legislature of the State of

15 Hawaii affecting the beneficiaries under the

16 Act;

17 (22) the United States has continually recog18 nized and reaffirmed that—

19 (A) Native Hawaiians have a cultural, his20 toric, and land-based link to the aboriginal, in21 digenous, native people who exercised sov22 ereignty over the Hawaiian Islands;

23 (B) Native Hawaiians have never relin24 quished their claims to sovereignty or their sov25 ereign lands;
12

10

•S 147 IS

1 (C) the United States extends services to

2 Native Hawaiians because of their unique sta3 tus as the indigenous, native people of a once4 sovereign nation with whom the United States

5 has a political and legal relationship; and

6 (D) the special trust relationship of Amer7 ican Indians, Alaska Natives, and Native Ha8 waiians to the United States arises out of their

9 status as aboriginal, indigenous, native people

10 of the United States; and

11 (23) the State of Hawaii supports the reaffir12 mation of the political and legal relationship between

13 the Native Hawaiian governing entity and the

14 United States as evidenced by 2 unanimous resolu15 tions enacted by the Hawaii State Legislature in the

16 2000 and 2001 sessions of the Legislature and by

17 the testimony of the Governor of the State of Hawaii

18 before the Committee on Indian Affairs of the Sen19 ate on February 25, 2003.

20 SEC. 3. DEFINITIONS.

21 In this Act:

22 (1) ABORIGINAL, INDIGENOUS, NATIVE PEO23 PLE.—The term ‘‘aboriginal, indigenous, native peo24 ple’’ means people whom Congress has recognized as

25 the original inhabitants of the lands that later be-
13

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•S 147 IS

1 came part of the United States and who exercised

2 sovereignty in the areas that later became part of

3 the United States.

4 (2) ADULT MEMBER.—The term ‘‘adult mem5 ber’’ means a Native Hawaiian who has attained the

6 age of 18 and who elects to participate in the reor7 ganization of the Native Hawaiian governing entity.

8 (3) APOLOGY RESOLUTION.—The term ‘‘Apol9 ogy Resolution’’ means Public Law 103–150 (107

10 Stat. 1510), a Joint Resolution extending an apol11 ogy to Native Hawaiians on behalf of the United

12 States for the participation of agents of the United

13 States in the January 17, 1893, overthrow of the

14 Kingdom of Hawaii.

15 (4) COMMISSION.—The term ‘‘commission’’

16 means the Commission established under section

17 7(b) to provide for the certification that those adult

18 members of the Native Hawaiian community listed

19 on the roll meet the definition of Native Hawaiian

20 set forth in paragraph (8).

21 (5) COUNCIL.—The term ‘‘council’’ means the

22 Native Hawaiian Interim Governing Council estab23 lished under section 7(c)(2).

24 (6) INDIGENOUS, NATIVE PEOPLE.—The term

25 ‘‘indigenous, native people’’ means the lineal de-
14

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1 scendants of the aboriginal, indigenous, native peo2 ple of the United States.

3 (7) INTERAGENCY COORDINATING GROUP.—The

4 term ‘‘Interagency Coordinating Group’’ means the

5 Native Hawaiian Interagency Coordinating Group

6 established under section 6.

7 (8) NATIVE HAWAIIAN.—For the purpose of es8 tablishing the roll authorized under section 7(c)(1)

9 and before the reaffirmation of the political and

10 legal relationship between the United States and the

11 Native Hawaiian governing entity, the term ‘‘Native

12 Hawaiian’’ means—

13 (A) an individual who is one of the indige14 nous, native people of Hawaii and who is a di15 rect lineal descendant of the aboriginal, indige16 nous, native people who—

17 (i) resided in the islands that now

18 comprise the State of Hawaii on or before

19 January 1, 1893; and

20 (ii) occupied and exercised sovereignty

21 in the Hawaiian archipelago, including the

22 area that now constitutes the State of Ha23 waii; or

24 (B) an individual who is one of the indige25 nous, native people of Hawaii and who was eli-
15

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•S 147 IS

1 gible in 1921 for the programs authorized by

2 the Hawaiian Homes Commission Act (42 Stat.

3 108, chapter 42) or a direct lineal descendant

4 of that individual.

5 (9) NATIVE HAWAIIAN GOVERNING ENTITY.—

6 The term ‘‘Native Hawaiian Governing Entity’’

7 means the governing entity organized by the Native

8 Hawaiian people pursuant to this Act.

9 (10) OFFICE.—The term ‘‘Office’’ means the

10 United States Office for Native Hawaiian Relations

11 established by section 5(a).

12 (11) SECRETARY.—The term ‘‘Secretary’’

13 means the Secretary of the Interior.

14 SEC. 4. UNITED STATES POLICY AND PURPOSE.

15 (a) POLICY.—The United States reaffirms that—

16 (1) Native Hawaiians are a unique and distinct,

17 indigenous, native people with whom the United

18 States has a special political and legal relationship;

19 (2) the United States has a special political and

20 legal relationship with the Native Hawaiian people

21 which includes promoting the welfare of Native Ha22 waiians;

23 (3) Congress possesses the authority under the

24 Constitution, including but not limited to Article I,

25 section 8, clause 3, to enact legislation to address
16

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1 the conditions of Native Hawaiians and has exer2 cised this authority through the enactment of—

3 (A) the Hawaiian Homes Commission Act,

4 1920 (42 Stat. 108, chapter 42);

5 (B) the Act entitled ‘‘An Act to provide for

6 the admission of the State of Hawaii into the

7 Union’’, approved March 18, 1959 (Public Law

8 86–3, 73 Stat. 4); and

9 (C) more than 150 other Federal laws ad10 dressing the conditions of Native Hawaiians;

11 (4) Native Hawaiians have—

12 (A) an inherent right to autonomy in their

13 internal affairs;

14 (B) an inherent right of self-determination

15 and self-governance;

16 (C) the right to reorganize a Native Ha17 waiian governing entity; and

18 (D) the right to become economically self19 sufficient; and

20 (5) the United States shall continue to engage

21 in a process of reconciliation and political relations

22 with the Native Hawaiian people.

23 (b) PURPOSE.—The purpose of this Act is to provide

24 a process for the reorganization of the Native Hawaiian

25 governing entity and the reaffirmation of the political and
17

15

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1 legal relationship between the United States and the Na2 tive Hawaiian governing entity for purposes of continuing

3 a government-to-government relationship.

4 SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RE5 LATIONS.

6 (a) ESTABLISHMENT.—There is established within

7 the Office of the Secretary, the United States Office for

8 Native Hawaiian Relations.

9 (b) DUTIES.—The Office shall—

10 (1) continue the process of reconciliation with

11 the Native Hawaiian people in furtherance of the

12 Apology Resolution;

13 (2) upon the reaffirmation of the political and

14 legal relationship between the Native Hawaiian gov15 erning entity and the United States, effectuate and

16 coordinate the special political and legal relationship

17 between the Native Hawaiian governing entity and

18 the United States through the Secretary, and with

19 all other Federal agencies;

20 (3) fully integrate the principle and practice of

21 meaningful, regular, and appropriate consultation

22 with the Native Hawaiian governing entity by pro23 viding timely notice to, and consulting with, the Na24 tive Hawaiian people and the Native Hawaiian gov25 erning entity before taking any actions that may
18

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1 have the potential to significantly affect Native Ha2 waiian resources, rights, or lands;

3 (4) consult with the Interagency Coordinating

4 Group, other Federal agencies, the Governor of the

5 State of Hawaii and relevant agencies of the State

6 of Hawaii on policies, practices, and proposed ac7 tions affecting Native Hawaiian resources, rights, or

8 lands; and

9 (5) prepare and submit to the Committee on

10 Indian Affairs and the Committee on Energy and

11 Natural Resources of the Senate and the Committee

12 on Resources of the House of Representatives an an13 nual report detailing the activities of the Interagency

14 Coordinating Group that are undertaken with re15 spect to the continuing process of reconciliation and

16 to effect meaningful consultation with the Native

17 Hawaiian governing entity and providing rec18 ommendations for any necessary changes to Federal

19 law or regulations promulgated under the authority

20 of Federal law.

21 SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING

22 GROUP.

23 (a) ESTABLISHMENT.—In recognition that Federal

24 programs authorized to address the conditions of Native

25 Hawaiians are largely administered by Federal agencies
19

17

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1 other than the Department of the Interior, there is estab2 lished an interagency coordinating group to be known as

3 the ‘‘Native Hawaiian Interagency Coordinating Group’’.

4 (b) COMPOSITION.—The Interagency Coordinating

5 Group shall be composed of officials, to be designated by

6 the President, from—

7 (1) each Federal agency that administers Na8 tive Hawaiian programs, establishes or implements

9 policies that affect Native Hawaiians, or whose ac10 tions may significantly or uniquely impact Native

11 Hawaiian resources, rights, or lands; and

12 (2) the Office.

13 (c) LEAD AGENCY.—

14 (1) IN GENERAL.—The Department of the Inte15 rior shall serve as the lead agency of the Interagency

16 Coordinating Group.

17 (2) MEETINGS.—The Secretary shall convene

18 meetings of the Interagency Coordinating Group.

19 (d) DUTIES.—The Interagency Coordinating Group

20 shall—

21 (1) coordinate Federal programs and policies

22 that affect Native Hawaiians or actions by any agen23 cy or agencies of the Federal Government that may

24 significantly or uniquely affect Native Hawaiian re25 sources, rights, or lands;
20

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•S 147 IS

1 (2) ensure that each Federal agency develops a

2 policy on consultation with the Native Hawaiian peo3 ple, and upon the reaffirmation of the political and

4 legal relationship between the Native Hawaiian gov5 erning entity and the United States, consultation

6 with the Native Hawaiian governing entity; and

7 (3) ensure the participation of each Federal

8 agency in the development of the report to Congress

9 authorized in section 5(b)(5).

10 SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NA11 TIVE HAWAIIAN GOVERNING ENTITY AND

12 THE REAFFIRMATION OF THE POLITICAL

13 AND LEGAL RELATIONSHIP BETWEEN THE

14 UNITED STATES AND THE NATIVE HAWAIIAN

15 GOVERNING ENTITY.

16 (a) RECOGNITION OF THE NATIVE HAWAIIAN GOV17 ERNING ENTITY.—The right of the Native Hawaiian peo18 ple to reorganize the Native Hawaiian governing entity to

19 provide for their common welfare and to adopt appropriate

20 organic governing documents is recognized by the United

21 States.

22 (b) COMMISSION.—

23 (1) IN GENERAL.—There is authorized to be es24 tablished a Commission to be composed of nine

25 members for the purposes of—
21

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•S 147 IS

1 (A) preparing and maintaining a roll of the

2 adult members of the Native Hawaiian commu3 nity who elect to participate in the reorganiza4 tion of the Native Hawaiian governing entity;

5 and

6 (B) certifying that the adult members of

7 the Native Hawaiian community proposed for

8 inclusion on the roll meet the definition of Na9 tive Hawaiian in paragraph (8) of section 3.

10 (2) MEMBERSHIP.—

11 (A) APPOINTMENT.—Within 180 days of

12 the date of enactment of this Act, the Secretary

13 shall appoint the members of the Commission

14 in accordance with subclause (B). Any vacancy

15 on the Commission shall not affect its powers

16 and shall be filled in the same manner as the

17 original appointment.

18 (B) REQUIREMENTS.—The members of the

19 Commission shall be Native Hawaiian, as de20 fined in section 3(8), and shall have expertise in

21 the determination of Native Hawaiian ancestry

22 and lineal descendancy.

23 (3) EXPENSES.—Each member of the Commis24 sion shall be allowed travel expenses, including per

25 diem in lieu of subsistence, at rates authorized for
22

20

•S 147 IS

1 employees of agencies under subchapter I of chapter

2 57 of title 5, United States Code, while away from

3 their homes or regular places of business in the per4 formance of services for the Commission.

5 (4) DUTIES.—The Commission shall—

6 (A) prepare and maintain a roll of the

7 adult members of the Native Hawaiian commu8 nity who elect to participate in the reorganiza9 tion of the Native Hawaiian governing entity;

10 and

11 (B) certify that each of the adult members

12 of the Native Hawaiian community proposed for

13 inclusion on the roll meets the definition of Na14 tive Hawaiian in section 3(8).

15 (5) STAFF.—

16 (A) IN GENERAL.—The Commission may,

17 without regard to the civil service laws (includ18 ing regulations), appoint and terminate an exec19 utive director and such other additional person20 nel as are necessary to enable the Commission

21 to perform the duties of the Commission.

22 (B) COMPENSATION.—

23 (i) IN GENERAL.—Except as provided

24 in clause (ii), the Commission may fix the

25 compensation of the executive director and
23

21

•S 147 IS

1 other personnel without regard to the pro2 visions of chapter 51 and subchapter III of

3 chapter 53 of title 5, United States Code,

4 relating to classification of positions and

5 General Schedule pay rates.

6 (ii) MAXIMUM RATE OF PAY.—The

7 rate of pay for the executive director and

8 other personnel shall not exceed the rate

9 payable for level V of the Executive Sched10 ule under section 5316 of title 5, United

11 States Code.

12 (6) DETAIL OF FEDERAL GOVERNMENT EM13 PLOYEES.—

14 (A) IN GENERAL.—An employee of the

15 Federal Government may be detailed to the

16 Commission without reimbursement.

17 (B) CIVIL SERVICE STATUS.—The detail of

18 the employee shall be without interruption or

19 loss of civil service status or privilege.

20 (7) PROCUREMENT OF TEMPORARY AND INTER21 MITTENT SERVICES.—The Commission may procure

22 temporary and intermittent services in accordance

23 with section 3109(b) of title 5, United States Code,

24 at rates for individuals that do not exceed the daily

25 equivalent of the annual rate of basic pay prescribed
24

22

•S 147 IS

1 for level V of the Executive Schedule under section

2 5316 of that title.

3 (8) EXPIRATION.—The Secretary shall dissolve

4 the Commission upon the reaffirmation of the politi5 cal and legal relationship between the Native Hawai6 ian governing entity and the United States.

7 (c) PROCESS FOR THE REORGANIZATION OF THE NA8 TIVE HAWAIIAN GOVERNING ENTITY.—

9 (1) ROLL.—

10 (A) CONTENTS.—The roll shall include the

11 names of the adult members of the Native Ha12 waiian community who elect to participate in

13 the reorganization of the Native Hawaiian gov14 erning entity and are certified to be Native Ha15 waiian as defined in section 3(8) by the Com16 mission.

17 (B) FORMATION OF ROLL.—Each adult

18 member of the Native Hawaiian community

19 who elects to participate in the reorganization

20 of the Native Hawaiian governing entity shall

21 submit to the Commission documentation in the

22 form established by the Commission that is suf23 ficient to enable the Commission to determine

24 whether the individual meets the definition of

25 Native Hawaiian in section 3(8).
25

23

•S 147 IS

1 (C) DOCUMENTATION.—The Commission

2 shall—

3 (i) identify the types of documentation

4 that may be submitted to the Commission

5 that would enable the Commission to de6 termine whether an individual meets the

7 definition of Native Hawaiian in section

8 3(8);

9 (ii) establish a standard format for

10 the submission of documentation; and

11 (iii) publish information related to

12 clauses (i) and (ii) in the Federal Register.

13 (D) CONSULTATION.—In making deter14 minations that each of the adult members of

15 the Native Hawaiian community proposed for

16 inclusion on the roll meets the definition of Na17 tive Hawaiian in section 3(8), the Commission

18 may consult with Native Hawaiian organiza19 tions, agencies of the State of Hawaii including

20 but not limited to the Department of Hawaiian

21 Home Lands, the Office of Hawaiian Affairs,

22 and the State Department of Health, and other

23 entities with expertise and experience in the de24 termination of Native Hawaiian ancestry and

25 lineal descendancy.
26

24

•S 147 IS

1 (E) CERTIFICATION AND SUBMITTAL OF

2 ROLL TO SECRETARY.—The Commission

3 shall—

4 (i) submit the roll containing the

5 names of the adult members of the Native

6 Hawaiian community who meet the defini7 tion of Native Hawaiian in section 3(8) to

8 the Secretary within two years from the

9 date on which the Commission is fully

10 composed; and

11 (ii) certify to the Secretary that each

12 of the adult members of the Native Hawai13 ian community proposed for inclusion on

14 the roll meets the definition of Native Ha15 waiian in section 3(8).

16 (F) PUBLICATION.—Upon certification by

17 the Commission to the Secretary that those list18 ed on the roll meet the definition of Native Ha19 waiian in section 3(8), the Secretary shall pub20 lish the roll in the Federal Register.

21 (G) APPEAL.—The Secretary may estab22 lish a mechanism for an appeal for any person

23 whose name is excluded from the roll who

24 claims to meet the definition of Native Hawai-
27

25

•S 147 IS

1 ian in section 3(8) and to be 18 years of age

2 or older.

3 (H) PUBLICATION; UPDATE.—The Sec4 retary shall—

5 (i) publish the roll regardless of

6 whether appeals are pending;

7 (ii) update the roll and the publication

8 of the roll on the final disposition of any

9 appeal; and

10 (iii) update the roll to include any Na11 tive Hawaiian who has attained the age of

12 18 and who has been certified by the Com13 mission as meeting the definition of Native

14 Hawaiian in section 3(8) after the initial

15 publication of the roll or after any subse16 quent publications of the roll.

17 (I) FAILURE TO ACT.—If the Secretary

18 fails to publish the roll, not later than 90 days

19 after the date on which the roll is submitted to

20 the Secretary, the Commission shall publish the

21 roll notwithstanding any order or directive

22 issued by the Secretary or any other official of

23 the Department of the Interior to the contrary.

24 (J) EFFECT OF PUBLICATION.—The publi25 cation of the initial and updated roll shall serve
28

26

•S 147 IS

1 as the basis for the eligibility of adult members

2 of the Native Hawaiian community whose

3 names are listed on those rolls to participate in

4 the reorganization of the Native Hawaiian gov5 erning entity.

6 (2) ORGANIZATION OF THE NATIVE HAWAIIAN

7 INTERIM GOVERNING COUNCIL.—

8 (A) ORGANIZATION.—The adult members

9 of the Native Hawaiian community listed on the

10 roll published under this section may—

11 (i) develop criteria for candidates to

12 be elected to serve on the Native Hawaiian

13 Interim Governing Council;

14 (ii) determine the structure of the

15 Council; and

16 (iii) elect members from individuals

17 listed on the roll published under this sub18 section to the Council.

19 (B) POWERS.—

20 (i) IN GENERAL.—The Council—

21 (I) may represent those listed on

22 the roll published under this section in

23 the implementation of this Act; and
29

27

•S 147 IS

1 (II) shall have no powers other

2 than powers given to the Council

3 under this Act.

4 (ii) FUNDING.—The Council may

5 enter into a contract with, or obtain a

6 grant from, any Federal or State agency to

7 carry out clause (iii).

8 (iii) ACTIVITIES.—

9 (I) IN GENERAL.—The Council

10 may conduct a referendum among the

11 adult members of the Native Hawai12 ian community listed on the roll pub13 lished under this subsection for the

14 purpose of determining the proposed

15 elements of the organic governing doc16 uments of the Native Hawaiian gov17 erning entity, including but not lim18 ited to—

19 (aa) the proposed criteria

20 for citizenship of the Native Ha21 waiian governing entity;

22 (bb) the proposed powers

23 and authorities to be exercised by

24 the Native Hawaiian governing

25 entity, as well as the proposed
30

28

•S 147 IS

1 privileges and immunities of the

2 Native Hawaiian governing en3 tity;

4 (cc) the proposed civil rights

5 and protection of the rights of

6 the citizens of the Native Hawai7 ian governing entity and all per8 sons affected by the exercise of

9 governmental powers and au10 thorities of the Native Hawaiian

11 governing entity; and

12 (dd) other issues determined

13 appropriate by the Council.

14 (II) DEVELOPMENT OF ORGANIC

15 GOVERNING DOCUMENTS.—Based on

16 the referendum, the Council may de17 velop proposed organic governing doc18 uments for the Native Hawaiian gov19 erning entity.

20 (III) DISTRIBUTION.—The Coun21 cil may distribute to all adult mem22 bers of the Native Hawaiian commu23 nity listed on the roll published under

24 this subsection—
31

29

•S 147 IS

1 (aa) a copy of the proposed

2 organic governing documents, as

3 drafted by the Council; and

4 (bb) a brief impartial de5 scription of the proposed organic

6 governing documents;

7 (IV) ELECTIONS.—The Council

8 may hold elections for the purpose of

9 ratifying the proposed organic govern10 ing documents, and on certification of

11 the organic governing documents by

12 the Secretary in accordance with

13 paragraph (4), hold elections of the

14 officers of the Native Hawaiian gov15 erning entity pursuant to paragraph

16 (5).

17 (3) SUBMITTAL OF ORGANIC GOVERNING DOCU18 MENTS.—Following the reorganization of the Native

19 Hawaiian governing entity and the adoption of or20 ganic governing documents, the Council shall submit

21 the organic governing documents of the Native Ha22 waiian governing entity to the Secretary.

23 (4) CERTIFICATIONS.—

24 (A) IN GENERAL.—Within the context of

25 the future negotiations to be conducted under
32

30

•S 147 IS

1 the authority of section 8(b)(1), and the subse2 quent actions by the Congress and the State of

3 Hawaii to enact legislation to implement the

4 agreements of the 3 governments, not later

5 than 90 days after the date on which the Coun6 cil submits the organic governing documents to

7 the Secretary, the Secretary shall certify that

8 the organic governing documents—

9 (i) establish the criteria for citizenship

10 in the Native Hawaiian governing entity;

11 (ii) were adopted by a majority vote of

12 the adult members of the Native Hawaiian

13 community whose names are listed on the

14 roll published by the Secretary;

15 (iii) provide authority for the Native

16 Hawaiian governing entity to negotiate

17 with Federal, State, and local govern18 ments, and other entities;

19 (iv) provide for the exercise of govern20 mental authorities by the Native Hawaiian

21 governing entity, including any authorities

22 that may be delegated to the Native Ha23 waiian governing entity by the United

24 States and the State of Hawaii following

25 negotiations authorized in section 8(b)(1)
33

31

•S 147 IS

1 and the enactment of legislation to imple2 ment the agreements of the 3 governments;

3 (v) prevent the sale, disposition, lease,

4 or encumbrance of lands, interests in

5 lands, or other assets of the Native Hawai6 ian governing entity without the consent of

7 the Native Hawaiian governing entity;

8 (vi) provide for the protection of the

9 civil rights of the citizens of the Native

10 Hawaiian governing entity and all persons

11 affected by the exercise of governmental

12 powers and authorities by the Native Ha13 waiian governing entity; and

14 (vii) are consistent with applicable

15 Federal law and the special political and

16 legal relationship between the United

17 States and the indigenous, native people of

18 the United States; provided that the provi19 sions of Public Law 103–454, 25 U.S.C.

20 479a, shall not apply.

21 (B) RESUBMISSION IN CASE OF NON22 COMPLIANCE WITH THE REQUIREMENTS OF

23 SUBPARAGRAPH (A).—

24 (i) RESUBMISSION BY THE SEC25 RETARY.—If the Secretary determines that
34

32

•S 147 IS

1 the organic governing documents, or any

2 part of the documents, do not meet all of

3 the requirements set forth in subparagraph

4 (A), the Secretary shall resubmit the or5 ganic governing documents to the Council,

6 along with a justification for each of the

7 Secretary’s findings as to why the provi8 sions are not in full compliance.

9 (ii) AMENDMENT AND RESUBMISSION

10 OF ORGANIC GOVERNING DOCUMENTS.—If

11 the organic governing documents are re12 submitted to the Council by the Secretary

13 under clause (i), the Council shall—

14 (I) amend the organic governing

15 documents to ensure that the docu16 ments meet all the requirements set

17 forth in subparagraph (A); and

18 (II) resubmit the amended or19 ganic governing documents to the Sec20 retary for certification in accordance

21 with this paragraph.

22 (C) CERTIFICATIONS DEEMED MADE.—

23 The certifications under paragraph (4) shall be

24 deemed to have been made if the Secretary has

25 not acted within 90 days after the date on
35

33

•S 147 IS

1 which the Council has submitted the organic

2 governing documents of the Native Hawaiian

3 governing entity to the Secretary.

4 (5) ELECTIONS.—On completion of the certifi5 cations by the Secretary under paragraph (4), the

6 Council may hold elections of the officers of the Na7 tive Hawaiian governing entity.

8 (6) REAFFIRMATION.—Notwithstanding any

9 other provision of law, upon the certifications re10 quired under paragraph (4) and the election of the

11 officers of the Native Hawaiian governing entity, the

12 political and legal relationship between the United

13 States and the Native Hawaiian governing entity is

14 hereby reaffirmed and the United States extends

15 Federal recognition to the Native Hawaiian govern16 ing entity as the representative governing body of

17 the Native Hawaiian people.

18 SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AU19 THORITY; NEGOTIATIONS; CLAIMS.

20 (a) REAFFIRMATION.—The delegation by the United

21 States of authority to the State of Hawaii to address the

22 conditions of the indigenous, native people of Hawaii con23 tained in the Act entitled ‘‘An Act to provide for the ad24 mission of the State of Hawaii into the Union’’ approved
36

34

•S 147 IS

1 March 18, 1959 (Public Law 86–3, 73 Stat. 4), is re2 affirmed.

3 (b) NEGOTIATIONS.—

4 (1) IN GENERAL.—Upon the reaffirmation of

5 the political and legal relationship between the

6 United States and the Native Hawaiian governing

7 entity, the United States and the State of Hawaii

8 may enter into negotiations with the Native Hawai9 ian governing entity designed to lead to an agree10 ment addressing such matters as—

11 (A) the transfer of lands, natural re12 sources, and other assets, and the protection of

13 existing rights related to such lands or re14 sources;

15 (B) the exercise of governmental authority

16 over any transferred lands, natural resources,

17 and other assets, including land use;

18 (C) the exercise of civil and criminal juris19 diction;

20 (D) the delegation of governmental powers

21 and authorities to the Native Hawaiian govern22 ing entity by the United States and the State

23 of Hawaii; and

24 (E) any residual responsibilities of the

25 United States and the State of Hawaii.
37

35

•S 147 IS

1 (2) AMENDMENTS TO EXISTING LAWS.—Upon

2 agreement on any matter or matters negotiated with

3 the United States, the State of Hawaii, and the Na4 tive Hawaiian governing entity, the parties are au5 thorized to submit—

6 (A) to the Committee on Indian Affairs of

7 the Senate, the Committee on Energy and Nat8 ural Resources of the Senate, and the Commit9 tee on Resources of the House of Representa10 tives, recommendations for proposed amend11 ments to Federal law that will enable the imple12 mentation of agreements reached between the 3

13 governments; and

14 (B) to the Governor and the legislature of

15 the State of Hawaii, recommendations for pro16 posed amendments to State law that will enable

17 the implementation of agreements reached be18 tween the 3 governments.

19 (c) CLAIMS.—

20 (1) IN GENERAL.—Nothing in this Act serves

21 as a settlement of any claim against the United

22 States.

23 (2) STATUTE OF LIMITATIONS.—Any claim

24 against the United States arising under Federal law

25 that—
38

36

•S 147 IS

1 (A) is in existence on the date of enact2 ment of this Act;

3 (B) is asserted by the Native Hawaiian

4 governing entity on behalf of the Native Hawai5 ian people; and

6 (C) relates to the legal and political rela7 tionship between the United States and the Na8 tive Hawaiian people;

9 shall be brought in the court of jurisdiction over

10 such claims not later than 20 years after the date

11 on which Federal recognition is extended to the Na12 tive Hawaiian governing entity under section

13 7(c)(6).

14 SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

15 (a) INDIAN GAMING REGULATORY ACT.—Nothing in

16 this Act shall be construed to authorize the Native Hawai17 ian governing entity to conduct gaming activities under

18 the authority of the Indian Gaming Regulatory Act (25

19 U.S.C. 2701 et seq.).

20 (b) BUREAU OF INDIAN AFFAIRS.—Nothing con21 tained in this Act provides an authorization for eligibility

22 to participate in any programs and services provided by

23 the Bureau of Indian Affairs for any persons not otherwise

24 eligible for the programs or services.
39

37

•S 147 IS

1 SEC. 10. SEVERABILITY.

2 If any section or provision of this Act is held invalid,

3 it is the intent of Congress that the remaining sections

4 or provisions shall continue in full force and effect.

5 SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

6 There are authorized to be appropriated such sums

7 as are necessary to carry out this Act.

Æ
40

The CHAIRMAN. Please know that the committee will very carefully consider any written testimony it receives. I thank you all for

being here, and I want to emphasize I am keeping an open mind

on this issue. I have reservations, but I think those reservations

will be ventilated here in this hearing process.

Senator Dorgan.

STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM

NORTH DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN

AFFAIRS

Senator DORGAN. Mr. Chairman, thank you very much.

Let me just as a point of personal privilege as we begin this process say that this is the last hearing that will be attended by Patricia Zell, who has been the chief of staff on the minority side for so

many years. She has worked with this committee for 24 years.

There is perhaps no one in this country who is as knowledgeable

and has committed their lives quite as wholly as Patricia Zell has

to so many important causes. The committee will miss her expertise, but let all of us thank her for the wonderful service she has

given to this country over these many years.

[Applause.]

Senator DORGAN. I will at the next hearing introduce Sara Garland who is succeeding Patricia Zell in this role.

In the meantime, let me thank you, Mr. Chairman, for holding

this hearing. Let me welcome the Governor and the two members

of Congress. I think that our Senators, the two Senators from Hawaii, both of whom serve on this committee, have done an extraordinary job in laying out a process here that I think is reasonable

and prudent and which will enable three levels of government here

to develop a working relationship with one another that will be

premised upon the consensus that will have to be built even after

we pass this legislation, if we pass the legislation.

I might say that I am inclined to be supportive of it. I think that

this is a really important issue and an interesting issue. I will say,

as the chairman did, that Senator Inouye, for whom this is an extraordinarily important issue, is not able to be with us today due

to an illness, but I know Senator Akaka will ably represent him

and the delegation today.

I thank Congressman Case and also Congressman Faleomavaega

for being with us. I have had the opportunity to visit with the chair

of the Board of Trustees of the Office of Hawaiian Affairs and others, and learned that through this bill the Native Hawaiian people

are asking for a status under Federal law that is equal to that of

America’s other native peoples, American Indians and Alaska Natives.

This is just a really important issue where I am very pleased,

Mr. Chairman, that you have called a hearing on this as early as

we have. I look forward to hearing all of the witnesses.

Let me ask that my full statement be made a part of the record,

and also that the opening statement of Senator Inouye be made a

part of the record.

The CHAIRMAN. Without objection.

[Prepared statements of Senators Dorgan and Inouye appear in

appendix.]
41

The CHAIRMAN. Senator Akaka.

STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR FROM

HAWAII

Senator AKAKA. Thank you very much, Mr. Chairman. I thank

you very much for holding this hearing. Mr. Chairman, I want you

to know that I am joining you on this committee and will be working with you with much aloha coming from Hawaii, and tell you

that I really appreciate what you are doing for Hawaii and the people of Hawaii today by having this hearing.

As you know, this is the fourth Congress in which this committee

is considering this legislation. Time has really flown. Our committee favorably reported the bill in the 106th Congress, the 107th,

and 108th and here we are now in the 109th Congress. I am hopeful and confident that our colleagues on this committee will once

again support our efforts to extend the Federal policy of self-governance and self-determination to Native Hawaiians.

Mr. Chairman, I want to begin by thanking Hawaii’s Governor

Linda Lingle for joining us this morning. Since her election in

2002, I have worked closely with Governor Lingle and appreciate

all that she has done in working to gain the support of the Bush

administration for the enactment of this bill. Governor Lingle’s

support demonstrates an important facet of this bill, the fact that

for the people of Hawaii addressing the condition of Hawaii’s indigenous peoples, Native Hawaiians, is a non-partisan priority.

Anyone who has lived in Hawaii has experienced the aloha spirit,

a special attitude which exudes happiness and generosity toward

all. The aloha spirit for which the people of Hawaii is known is

grounded in the culture and tradition of Hawaii’s indigenous peoples. For that reason, Hawaii’s citizens, whether or not they are

Native Hawaiian, appreciate and support efforts to preserve the

culture and tradition of Native Hawaiians. A large majority of Hawaii’s residents support our efforts to enact this bill because it is

the right thing to do for Native Hawaiians and for the people of

Hawaii.

The Native Hawaiian Government Reorganization Act does three

things. It establishes the Office of Native Hawaiian Relations in

the Department of the Interior to serve as a liaison between Native

Hawaiians and the United States. It establishes a Native Hawaiian

Interagency Coordinating Group to be composed of Federal officials

from agencies which administer Native Hawaiian programs. Both

of these provisions are intended to increase coordination between

the Native Hawaiians and the Federal Government. Finally, the

bill provides a process of reorganization of the Native Hawaiian

governing entity.

I am very proud of the fact that while the bill provides structure

to the process, it also provides the Native Hawaiian community

with the flexibility to truly reorganize the governing entity.

Mr. Chairman, as you may recall, in 1993 we enacted legislation

I drafted which is referred to as the Apology Resolution. The resolution apologized for the actions of U.S. agents in the overthrow of

the Kingdom of Hawaii. The resolution also addressed a process of

reconciliation between Native Hawaiians and the United States.

The process of reconciliation involves an incremental dialog be-
42

tween Native Hawaiians and the United States to discuss many of

the longstanding issues resulting from the overthrow of the Kingdom of Hawaii.

My bill, Mr. Chairman, provides the structure for this process of

reconciliation. The bill provides that following Federal recognition

of the Native Hawaiian governing entity, the Federal and State

Governments and the Native Hawaiian government will begin negotiations to address matters such as the transfer of lands, natural

resources and other assets; the exercise of governmental authority

over such lands and resources; the exercise of civil and criminal jurisdiction; and the exercise of governmental powers and authorities

by the Native Hawaiian government. This, for me, Mr. Chairman,

will be a large step in the process of reconciliation.

For too long, the people of Hawaii have lacked a structured process to deal with these issues. This bill holds the promise for all of

us in Hawaii to come to terms with Hawaii’s unique and often

painful history, to rectify inequities, and to move on as a State. It

is for this reason that I have worked so hard over the past six

years to enact this measure. I believe this bill is critical for Native

Hawaiians who seek greater autonomy over the use of their lands

and natural resources and programs and services.

I also believe that this measure is just as important for non–Native Hawaiians as it provides us with a process to finally, after 112

years, begin to resolve the longstanding issues which resulted from

what is considered by many to be the most poignant experiences

in Hawaii’s history, and that is the overthrow of the Kingdom of

Hawaii.

Our Native brothers and sisters in Alaska and in Indian country

understand our efforts. I want to thank them. I really want to

thank them for their unending support over the years. They have

always, always been willing to work with us to ensure that we benefit from the lessons they have learned. We are gaining for it. For

this generosity, we will always be indebted to them.

I ask each of my colleagues here to stand with us as we work

to extend the Federal policy of self-governance and self-determination to Hawaii’s indigenous peoples, an effort for those in Hawaii

that erases the boundaries between political parties and differences.

Thank you very much, Mr. Chairman, for this opportunity to

make my statement.

The CHAIRMAN. Thank you very much, Senator Akaka.

We are always pleased to have our colleagues from the other side

of the Capitol here to join us to make brief statements. We are very

glad to see you. Honorable Faleomavaega, we are glad to see you

again, and Congressman Case. Whoever wishes to go first, please

proceed.

STATEMENT OF HON. ED CASE, U.S. REPRESENTATIVE FROM

HAWAII

Mr. CASE. Thank you, Mr. Chairman, Senator Dorgan, Senator

Akaka, members of the committee. Good morning and aloha.

I appreciate the opportunity to appear before you, as the proud

representative of the congressional district with the most Native

Hawaiians of any district in our country, in unqualified support of
43

S. 147, the Native Hawaiian Government Reorganization Act, as

well as its House counterpart, H.R. 309, introduced by me and my

colleagues Mr. Abercrombie, Mr. Faleomavaega, and others.

You have my written testimony, so allow me to make five brief

points.

First, please have no doubt that this is the most important single

piece of legislation affecting both Native Hawaiians and all of our

Hawaii to come before Congress since 1959.

Second, that is because Federal recognition represents the long

overdue, long-missing framework for Native Hawaiians to affirm

and continue their longstanding relationship with the United

States and achieve permanent and sustainable autonomy as exists

for other indigenous peoples of our country.

Third, this must be accomplished not only to assure the survival

and prosperity of the Native Hawaiian people and culture wherever

they may live, but because Native Hawaiians are the very core of

my Hawaii, of our Hawaii itself. For that reason, Federal recognition is indispensable not only for Native Hawaiians, but for all of

us in Hawaii.

Fourth, we in Hawaii and beyond, with the other indigenous peoples of our country, have a broad-based consensus that this is what

we want and need to do and must do.

Fifth, this bill provides each and all of the United States and Native Hawaiians with a reasonable structure under which to negotiate the details that you, Mr. Chair, referred to, and affirm Federal recognition so that specific concerns can and, I have great confidence, ultimately will,be worked out.

Mr. Chair and members, we ask you to let this bill go, to embrace it as we have, to do what is right and just and necessary for

all of us.

Mahalo.

[Prepared statement of Representative Case appears in appendix.]

The CHAIRMAN. Thank you very much, Congressman Case.

STATEMENT OF HON. ENI F.H. FALEOMAVAEGA, U.S.

DELEGATE FROM AMERICAN SAMOA

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman, Senator Dorgan,

Senator Akaka, distinguished members of the committee.

I think the last time, Mr. Chairman, we were at a hearing we

held on Molokai some years ago with Senator Inouye. It is always

good to know that now of your capacity as chairman of this important committee. I certainly want to express my deepest appreciation for your initiative and leadership in calling this hearing this

morning.

The CHAIRMAN. Thank you.

Mr. FALEOMAVAEGA. Mr. Chairman, as an original cosponsor of

H.R. 309, the companion bill to S. 147, I want to state my absolute

support of S. 147, the Native Hawaiian Government Reorganization Act of 2005, expressing the policy of the United States regarding the United States’ relationship with Native Hawaiians and providing a process for the recognition by the United States of the Native Hawaiian governing entity.
44

I would be remiss if I do not express my appreciation to the Senior Senator from Hawaii, Senator Inouye, and of course Senator

Akaka, Congressman Abercrombie, and Congressman Case, members of the Hawaii congressional delegation. I am very happy also

to see the Governor, Linda Lingle, here with us, and my good sister

Haunani Apoliona as chairman of the Office of Hawaiian Affairs.

Mr. Chairman, this bill goes to the very heart of our responsibility to protect the indigenous people who inhabit what is now the

United States. As relative newcomers to this land where we have

established this great Nation, we accepted responsibility for the

care and protection of those who lived here before we arrived in the

new world. The seriousness of this responsibility is borne out in the

countless laws that Congress has enacted over the years for the

benefit of Native Americans and the volumes of works addressing

Indian law, the Supreme Court cases addressing native issues, and

even now at the recent opening here in our Nation’s Capital of the

National Museum of the American Indian.

Some have expressed concern that we should not legislate for Native Hawaiians because they are not American Indians. In my

readings, Mr. Chairman, of the U.S. Supreme Court Chief Justice

John Marshall, pretty well defined the term ‘‘Indian’’ to include all

of the original inhabitants or natives who occupied America when

it was allegedly discovered by the great nations of Europe. Just as

Marshall further defined ‘‘tribe’’ to mean a people distinct from others, a distinct community.

As an example, Alaska Natives are proof of the broad definition

allowing indigenous groups to be recognized, even those who are

culturally and genealogically distinct from the narrow conception of

American Indian or tribe.

I submit, Mr. Chairman, I honestly believe the Native Hawaiians

also meet this definition. They are indigenous, aboriginal people

living within what are now the borders of the United States. Native Hawaiians are estimated to have arrived on the Hawaiian Islands as early as 300 A.D., long before the new world was allegedly, again Mr. Chairman, discovered by Christopher Columbus.

As you are well aware, Mr. Chairman, Native Hawaiians are also

collectively categorized by anthropologists and scientists as Polynesians. I might also note, Mr. Chairman, that the famous British explorer Captain James Cook did not discover many of the Pacific Islands settled by Polynesians, primarily because he was accompanied by a Polynesian Tahitian chief and navigator by the name

of Tupai’a, and told Captain Cook the locations of these islands

thousands of miles apart. What was surprising to Captain Cook

was the similarities of the culture and the people, the language

very closely related, whether they be the Maoris in New Zealand

or the Tongans or the Samoans or the Tahitians. Hawaiians were

the same people. Cook later described it as the largest nation on

earth, from Hawaii to New Zealand and as far east as Rapanui or

Easter Island.

Time will not permit me to discuss the origins of the Polynesian

people, Mr. Chairman, but suffice it to say, Mr. Chairman, that the

blood that flows in the veins of that good gentleman, Senator

Akaka, is the same blood that flows in my veins.
45

History has not been kind to my Native Hawaiian cousins for the

past 110 years or so. But years before that, for almost 2,000 years,

there were constant rivalries and wars among the ruling chiefs of

these islands. It was not until the 1750’s, as it was prophesied, that

a great warrior chief that would be known as the killer of chiefs,

and that a fleet of 900 war canoes of some 20,000 warriors, was

able to conquer the other chiefs and united the islands under one

rule. This famous chief, of course, was Kamehameha. Kamehameha

ruled the Hawaiian Kingdom for almost 20 years, and started a

ruling dynasty that almost lasted 100 years. To this day, no other

name is revered more by the Native Hawaiians than their King

Kamehameha.

Mr. Chairman, when most people think of Hawaii, they think of

honeymoons, grass huts, and tropical paradise, and think that natives still live in grass huts. Few are aware of the proud and painful history of some 300,000 Native Hawaiian people. Too few are

aware of Hawaii as an independent sovereign country, a country

that was illegally overthrown in 1893 by a U.S. minister to Hawaii

using U.S. Marines to support the agenda of a small group of U.S.

businessmen.

Mr. Chairman, I know the time is running. I just want to state

also, some of my colleagues have suggested at this time to move

on because Native Hawaiians have been absorbed into the larger

U.S. culture and no longer need special consideration. The evidence

suggests the contrary, Mr. Chairman. One look at the demographic

profile of the Native Hawaiian community will reveal that Native

Hawaiians are still suffering today from the loss of their lands and

the damage to their traditional ways of life. The Native Hawaiian

population is clearly suffering from poor health, poor living conditions, poor education, poor social conditions at a far higher rate

than in the general population.

Native Hawaiians lag far behind the general population of Hawaii in virtually every category of well-being, and are disproportionately represented in nearly every negative category.

Mr. Chairman, one point I would like to emphasize is that the

passage of this bill will involve no significant costs to the Federal

Government. In fact, there is a specific provision in the proposed

bill that excludes any funding that will go directly to the Bureau

of Indian Affairs does not go into any consideration to be given for

the needs of Native Hawaiians. The Congressional Budget Office

estimates that the outlays to open the Office of Hawaiian Relations

within the Department of the Interior would cost only about

$500,000.

We have an opportunity here, Mr. Chairman, to right a longstanding injustice that has been perpetuated on the Native Hawaiian people. We have a duty to protect this group of indigenous people who have suffered terribly as a result of their relationship with

the United States. The solution offered in this bill is comprehensive

and addresses the needs of the Native Hawaiian community. This

bill will restore a measure of well-deserved autonomy to the Native

Hawaiian people and provide a foundation for the reconciliation

process.

Mr. Chairman, I spent many years in Hawaii, and my affection

for the Hawaiian people is well known. Despite all adversity, the
46

Native Hawaiian culture remains rich and alive. The spirit of

Aloha that emanates from these people is what makes the State of

Hawaii very unique. The Native Hawaiian people have waited patiently for the day when we here in Congress would consider their

case and do the right thing.

I submit that today is that day. The right thing is for us to pass

the Native Hawaiian Reorganization Act of 2005 and to ensure the

protection and the perpetuation of these magnificent people.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much.

I thank our colleagues for coming over and joining us today. Are

there any questions?

Senator DORGAN. Mr. Chairman, I do not have any questions. I

thought both of you did an excellent job in laying out your positions

and being supportive of the legislation. Thank you very much.

The CHAIRMAN. Thank you.

Senator AKAKA. Thank you very much, Mr. Chairman. I want to

say thank you to our delegation. As was reported here, Senator

Inouye is not able to be here. And also, Congressman Abercrombie

is not able to be here because of the weather. I wanted you to know

that the delegation fully supports this bill. I want to thank our

chairman for all he has done this far. I want to thank our Ranking

Member, Byron Dorgan, for his support as well.

Thank you very much.

The CHAIRMAN. Thank you very much. Thank you for coming.

Our next witness is Linda Lingle, who is the Governor of the

State of Hawaii. Welcome, Governor, thank you for being with us

this morning. Welcome Governor, please proceed.

STATEMENT OF HON. LINDA LINGLE, GOVERNOR, FROM HAWAII, ACCOMPANIED BY MARK BENNETT, ATTORNEY GENERAL

Ms. LINGLE. Good morning, Mr. Chairman, Vice Chairman Dorgan, and Senator Akaka.

I am here today on behalf of the people of the State of Hawaii.

I want to tell you that we are grateful and humbled that in the

press of business that is facing this committee and this U.S. Senate, that you would set time aside to hear a bill that is critically

important to the people in our State.

Mr. Chairman, because I know you are a person who likes to get

to the heart of things quickly, let me say what I believe this bill

is about at its essence. This bill is simply about equality and equal

treatment under the law.

There are three groups of indigenous people in America. Two of

the groups have been recognized by the American Government, and

one has not. The failure to pass this bill would continue the discrimination that exists against the Native Hawaiian peoples not

being included in the recognition that the other two Native groups

have.

I think the bill does four things that are important to the Native

Hawaiian people and to the State of Hawaii. First of all, the bill

would promote self-sufficiency for Native Hawaiian people, and

bring about greater economic opportunity for them. Native Hawaiians continue to rely too heavily on State and Federal programs
47

and by having a Native Hawaiian governing entity, it would allow

them to move forward with independence.

It would also provide greater accountability to this U.S. Senate

and to the State of Hawaii for the Government programs that do

exist for Native Hawaiians. It would promote this accountability

because you would have all Government programs that benefit Native Hawaiians now coming under one entity, instead of being dispersed the way they are now. There have been over 150 pieces of

legislation of benefit to Native Hawaiians. I believe there should be

and needs to be greater accountability for these programs and more

effective use of the programs. I believe the creation of this entity

would help to bring about that accountability and efficiency.

I also believe that S. 147 is our best opportunity to preserve the

Native Hawaiian culture, which is the foundation of our being in

Hawaii. It is the essence of who we are as a people and a State.

It is also an economic imperative to our State because our State’s

largest industry, the tourist industry, is really dependent on the

preservation of the Native Hawaiian culture.

Finally, S. 147 would protect the existing programs against the

legal attacks that have become constant against programs that

benefit Native Hawaiians. I want to focus on one of them in particular that has been under attack and remains under attack in the

court system. That is a program that was set up by this U.S. Senate in 1920. In 1920, this U.S. Senate set aside 200,000 acres of

land to benefit Native Hawaiians. It was the right of the Senate

to do that and it was the right thing for the Senate to do. But

today, that program is being challenged in court and S. 147 would

allow us to protect the Hawaiian Homes Program as well as the

other programs that benefit Native Hawaiians.

I do want to mention that it has been a long road on this bill,

as has been outlined by Senator Akaka and others, but I believe

the time has been well spent because I believe the bill today is

something that a legal challenge can meet and any social concern

can meet any objection that may have arisen in the past.

I want to make reference to one part of the bill that is different

than the part I have testified on in the past. That was the inclusion of a provision that says that the State legislature, the State

of Hawaii, the U.S. Congress, and the new governing entity would

have to come together if there were going to be changes in civil or

criminal jurisdiction, land use, taxation, zoning, or other issues

that would affect the entity. So for those who were fearful that this

would bring about some of the same issues that have arisen with

the American Indians, I believe the change in the legislation has

finally and completely addressed that issue.

Mr. Chairman, I see this bill as a unifying force for my State.

Every elected official in the State of Hawaii supports this bill, both

Republican and Democrat. The majority of people of every ethnic

group support this bill. The business community supports this bill,

including the State’s two major banks. I believe it is because they

see this as a positive force for the future strength of our economy

and our social fabric.

Again, I want to thank you for scheduling this hearing, for keeping an open mind on a subject that is very important to us. I really

want to thank the committee members for sitting today, listening
48

to the testimony, and for giving us the courtesy of hearing a bill

that may not be important at the national level, but is to the people in our State.

Thank you very much, Senator.

[Statement of Governor Lingle appears in appendix.]

The CHAIRMAN. Thank you very much, Governor Lingle. And

thank you for your steadfast leadership and commitment to Native

Hawaiians. We are very pleased that you could appear here today.

Picking up on a couple of your comments that you just made,

under this proposal, if Native Hawaiians wanted to establish a

gaming operation, that would require the agreement of the State

legislature and Congress, as well as the Native Hawaiians themselves?

Ms. LINGLE. I would ask the lawyers in the room. My attorney

general is here and can answer that question. I will ask him to do

that. I will state for you clearly from a policy point of view, Senator, our entire congressional delegation opposes any legalized

gambling in our State. We are one of two States with no form of

legalized gambling. I oppose it. I will let the legal question be answered.

The CHAIRMAN. Thank you. My point is that there are a lot of

States where the legislatures have opposed gaming operations, and

they have been set up. But go ahead.

Ms. LINGLE. This is Attorney General Mark Bennett.

The CHAIRMAN. Go ahead, sir.

Mr. BENNETT. Senator, the bill itself says that there ought to be

and shall be no gambling pursuant to this bill. In addition, it would

certainly require at the very least an act of Congress to allow gambling if this occurred. But we believe that the bill by itself provides

no gambling, but there would be no possibility of that without a

further act of the Congress.

The CHAIRMAN. Thank you very much.

Governor, after getting into this issue a little more, it seems to

me that your sense of urgency is dictated by some of the constitutional challenges that have been brought against programs that are

administered by the State of Hawaii. What other programs would

be in danger here if S. 147 were not enacted?

Ms. LINGLE. The most critical program right now is one that is

pending in the Ninth Circuit. It involves the Department of Hawaiian Homelands. There are 200,000 acres of land that are home to

7,000 families, 28,000 people on those lands. If there was a successful legal challenge in my State, it would create social disruption because people would no longer have the right to those lands. So that

is, from my perspective, right now the most pressing issue.

If we are able to get S. 147 adopted, we will use this as a clear

basis for our argument that this is not a racial preference, but

these lands were set aside because there is a trust, a political relationship between the Native Hawaiian people and the American

Government.

The CHAIRMAN. Has there already been court decisions which

have impacted the status of Native Hawaiians?

Mr. BENNETT. There was a lawsuit challenging Native Hawaiian

programs that was dismissed, I would say, on technical grounds in

the District Court, but that is up on appeal right now in the Ninth
49

Circuit. While we believe that we can defend these lawsuits on the

current state of affairs, if this bill were to pass, we believe that this

would provide a clear mandate once and for all for the dismissal

of these lawsuits. We certainly are greatly concerned that without

this bill at some point, these lawsuits, either the current one or a

future one, may succeed in invalidating all programs that benefit

Native Hawaiians.

The CHAIRMAN. Governor Lingle, do you have an opinion on how

well, since the time of statehood, the State of Hawaii has managed

the ceded land trust for the benefit of Native Hawaiians?

Ms. LINGLE. I think recently we are doing an outstanding job.

The CHAIRMAN. Since you were inaugurated? [Laughter.]

Ms. LINGLE. I think, sir, with 85 years passing since the Hawaiian Homes Trust was set up, we could have done a much better job.

We have an accelerated program that we have put forward to put

thousands of additional families onto this land. We think, again, it

has been, as many other things that relate to Native Hawaiians

and many other programs, it has simply been too long in coming.

It is the right thing to do to move forward in a much faster pace.

So I think we are on the right track now, and this will help to keep

us there.

The CHAIRMAN. I thank you. Given the obvious urgency of this

legislation, I think you deserve a rapid decision by the Congress of

the United States on this issue. I would intend to hold a vote very

soon in the committee so that we can move this legislation forward.

Senator Dorgan.

Senator DORGAN. Governor, thank you for your testimony.

We had asked the Administration to be present to testify today

and they chose not to. Have you had any conversations with anyone in the Administration about whether they are intending to support or will support this legislation?

Ms. LINGLE. I have had many conversations with people in the

Administration who are all very focused on this issue. They are

briefed on it, and they are very anxious for the U.S. Senate and

the U.S. House to take action on S. 147.

Senator DORGAN. Being focused and briefed is admirable, if that

is what they are, but I am asking whether they will be supportive

or be opposing the legislation. Again, we had asked for representatives of the Administration to testify. I am not sure why they elected not to at the moment, but do you have any sense of whether

their weighing on this will be in support of the legislation or in opposition?

Ms. LINGLE. Senator, I am optimistic that if the Senate passes

this and the House passes it, that they would be supportive. I am

optimistic of that.

Senator DORGAN. All right. Well, often what we do is attempt to

ask the Administration their position before we take action. It is

not dispositive in terms of what we do, but I would hope as well

if we go through this process not hearing from them, that at the

end of the day if we have passed this legislation, they would be

supportive. But I would also encourage you and others to continue

to see if we could enlist their participation and evaluation concurrent with the consideration by Congress so that we could get their

views on it. I think that would be helpful.
50

Ms. LINGLE. Senator, you have my word that I will continue to

encourage them to be supportive of S. 147. I might say, I wish my

legislature at home was concerned about what I thought about

measures they were moving forward. This is something new to me.

[Laughter.]

I really am optimistic that if this can get through, that they will

be supportive.

Senator DORGAN. It is not new here to ask the Administration to

share their views with this committee. That is a rather time-honored tradition.

Let me again thank you for your testimony. You produced very

strong testimony, as I expected. My colleagues, Senator Inouye and

Senator Akaka, both assured us that you would be providing some

very compelling testimony. I think your presence here today is

very, very helpful to this committee. Your delegation, from the Governor and the State legislature, and virtually all of the official representatives of Hawaii speak with one voice on these issues. We appreciate very much your leadership, Governor.

Ms. LINGLE. Thank you, Senator.

The CHAIRMAN. Senator Akaka.

Senator AKAKA. Thank you very much, Mr. Chairman.

I want to take the time to thank the people from Hawaii who are

here and who have such a deep interest in this bill and the passage

of this bill. I want to thank all of you for being here. There are

some organizations here as well. I want to particularly thank the

Governor for your efforts on this bill, and in particular to thank

Mark Bennett, the attorney general, as well as Micah Kane, for

their work on this bill. I really appreciate their work. They work

with my staff and our staffs as well on this bill.

This has happened because I believe this is so critical for the

people of Hawaii. When my colleagues ask me about the importance of this bill, I explain my views to them as a Native Hawaiian.

I am hoping that you, Governor, as a non-Native Hawaiian, who

supports the bill as much as I do, can provide some insight as to

why non-Native Hawaiian residents in Hawaii support this bill.

Ms. LINGLE. Senator, I think again at its essence it is because

it is the right thing to do and because the people in our State are

probably a lot like me. Many of us came from other places. Maybe

we came from the mainland United States or we came from the

Philippines or we came from China or Vietnam or other places. We

were taken in, literally taken in as a part of the family, the ’ohana,

by the Hawaiian people. For us, this is a privilege to come here to

talk about this issue with people who maybe do not understand

how accepted we have been.

For someone like myself to come into the State, and as you know

I lived on a very small island for many years, that is, as a percentage of its population, besides Niihau which people cannot just go

to, it is the most Native Hawaiian Island. It was my introduction

to the people and the State of Hawaii. It has made me who I am

today. I think everyone who is non-Hawaiian in our State would

say that they are the person they are because of the culture of our

State. It is so different, so unique, and that culture is based on the

culture of the Native Hawaiian people. It is just such a privilege

to be here to be able to share how important this is to our State.
51

It is not just important to Native Hawaiians. It is important to who

we are as a people, as a society. As I said, this is a unifying force

for us, to finally be able to express gratitude this way to the Native

Hawaiian people for what they have given to us, and I believe,

what they have given to the country and to the world.

Senator AKAKA. I thank you very much for your support of this

bill, Governor.

Ms. LINGLE. Thank you, Senator.

Senator AKAKA. Thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you very much.

Thank you, Governor. Thank you for coming this long way. I am

sorry that we have not scheduled a hearing on this important issue

in Hawaii, but maybe we can consider that.

Ms. LINGLE. We look forward to hosting you, Senator.

The CHAIRMAN. Thank you very much, Governor.

I thank the attorney general also for being here. Thank you, sir.

Our next panel is, maybe Senator Akaka can pronounce.

Senator AKAKA. Yes; Haunani Apoliona.

The CHAIRMAN. She is the chairperson of the Board of Trustees

of the Office of Hawaiian Affairs; Tex Hall, president, National

Congress of American Indians; and Jade Danner, director, Government Affairs and Community Consultation, Council for Native Hawaiian Advancement.

Ms. Apoliona, would you correct my pronunciation again, please?

Ms. APOLIONA. It is Apoliona.

The CHAIRMAN. Apoliona. Thank you very much. I apologize for

the mispronunciation. Thank you very much. We will begin with

you. Thank you for coming.

STATEMENT OF HAUNANI APOLIONA, CHAIRPERSON, BOARD

OF TRUSTEES, OFFICE OF HAWAIIAN AFFAIRS, ACCOMPANIED BY MICAH KANE, CHAIRMAN, HAWAIIAN HOMES

COMMISSION

Ms. APOLIONA. [Greeting and song in native tongue.]

The CHAIRMAN. I am sure you are going to explain to me what

that was all about. [Laughter.]

Ms. APOLIONA. Thank you, Senator. The translations lay before

you. In our manner of welcoming and greeting, we would like to

share a lei with you as I begin my testimony.

The CHAIRMAN. We are going to have to have you here more

often. [Laughter.]

Please proceed.

Ms. APOLIONA. [Statement in native tongue.] To the leaders and

members of this Committee on Indian Affairs of the U.S. Congress,

greetings, my name is Haunani Apoliona. I am chairperson of the

Board of Trustees for the Office of Hawaiian Affairs, a body corporate created by the Hawaii State constitution and statute. I

would like to take 1 moment, Mr. Chairman and members, to introduce other trustees of the Office of Hawaiian Affairs who have

traveled this long way. As I introduce them, I would ask them to

rise: Trustee Rowena Akana, Trustee Dante Carpenter, Trustee

Boyd Mossman, Trustee Oswald Stender, and Trustee John

Waihe’e, IV.

The CHAIRMAN. You are welcome here today. Thank you.
52

Ms. APOLIONA. I would also, Mr. Chairman, like to introduce sitting to my left, Antoinette Lee, president of the Association of Hawaiian Civic Clubs, 51 clubs located throughout Hawaii and this

Nation, the oldest community-based grassroots, non-government

Native Hawaiian organization founded in 1918 by Delegate to Congress Jonah Kuhio Kalanianaole. Ms. Lee hopes to provide a few

comments following my testimony, and she has provided her full

text to the committee.

The CHAIRMAN. Welcome.

Ms. APOLIONA. The mission of the Office of Hawaiian Affairs is

to protect and assist Native Hawaiian people and to protect our environmental and other resources, and by doing so to perpetuate our

threatened traditional culture. Perhaps most importantly, OHA has

worked to bring meaningful self-government to the Native Hawaiian people who are the only indigenous group in the United States

to whom Congress has not fully afforded that fundamental right.

I testify today in support of enactment of S. 147. There are three

indigenous populations within the United States: American Indians

in the lower 48 States; Eskimos, Aleuts, and other Native groups

in Alaska; and Native Hawaiians. The governing entities of American Indians and Alaska Native have both been recognized by Congress. This recognition extends to indigenous people the ability to

govern their own internal affairs in a manner appropriate to their

cultures and traditions.

Congress acted in 1934 by passing the Indian Reorganization

Act, and in 1971 by passing the Alaska Native Claims Settlement

Act. In this legislation, S. 147, as Hawaiians, we seek only what

long has been granted this Nation’s other indigenous peoples.

In my 20-page written testimony, which with your permission I

ask be included in full in the record of this proceeding.

The CHAIRMAN. Without objection.

Ms. APOLIONA. I have provided detailed information about the

history of the Kingdom of Hawaii, about the United States’ role in

the forcible overthrow of our Native government; about our need

for a reorganized governmental entity to allow us a measure of selfgovernment, and about the need for Federal legislation authorizing

our reorganization. Since distinguished members of our congressional delegation and of course our distinguished Governor already

have spoken to these points, I wish to use my time this morning

to address questions that have been raised to us over the last several weeks.

Let me first address the impact of S. 147 on the Bureau of Indian

Affairs’ budget. Regarding the impact of the enactment of S. 147

would have on the Bureau of Indian Affairs’ budget, I note that we,

as Native Hawaiians, have not asked for, and S. 147 does not provide, the Native Hawaiian governing entity with access to the Federal funding set-aside for American Indian tribes.

In fact, S. 147 is specifically structured to prevent that from occurring. We think section 7 and 9 of the bill make clear that enactment of S. 147 will not have an impact on the Bureau’s budget or

on money generally appropriated for Indian tribes. We reiterate

and we stand by our commitment not to adversely impact our

American Indian ’ohana with this legislation.
53

Now, let me address the Federal appropriations currently provided to Native Hawaiians. Native Hawaiians already receive Federal funding of our own through various non-BIA programs for

such matters as Native Hawaiian health, education, housing, economic development, historic preservation, culture and elder and vocational services.

Federal recognition will not make Native Hawaiians eligible for

the Federal programs and services established for our Indian and

Alaska Native ’ohana. Through Federal recognition, we are not

members of tribes of the lower 48 States, nor members of corporations, tribes, or villages of Alaska. We are Native Hawaiians.

For further clarity on the matter of Federal appropriations, the

Congressional Budget Office, which studied an earlier nearly identical version of S. 147 in the 108th Congress, estimated that, quote,

‘‘implementing H.R. 4282 would cost nearly $1 million annually in

fiscal years 2005–07.’’

The CHAIRMAN. Ma’am, you are going to have to summarize some

of your testimony. We have three additional witnesses and then

questions from the members of the panel. I appreciate it, but you

are going to have to summarize your testimony. We usually give

5 minutes. We will give you a lot longer.

Ms. APOLIONA. S. 147 does not allow gaming. It does not provide

for that in the language of the bill. And as was stated earlier, the

State of Hawaii is one of two States, the other being Utah, that

does not allow gaming or gambling.

It is time to restore the Native Hawaiian self-governing status,

and we ask that this committee expeditiously move this legislation

to the floor of the Senate. Native Hawaiians are hopeful that this

Congress will enact S. 147, and thereby take another step toward

reconciliation.

I appear before you as the elected trustee of the Office of Hawaiian Affairs, as one of nine duly elected by all citizens of Hawaii to

represent the interests of the Hawaiian people. I am Native Hawaiian, and I thank you for your time.

[Prepared statement of Ms. Apoliona appears in appendix.]

The CHAIRMAN. Thank you very much.

Tex Hall, welcome back before the committee.

STATEMENT OF TEX HALL, PRESIDENT, NATIONAL CONGRESS

OF AMERICAN INDIANS, ACCOMPANIED BY JULIE KITKA,

PRESIDENT, ALASKA FEDERATION OF NATIVES

Mr. HALL. [Greeting in native tongue.] Aloha, and good morning

to Chairman McCain, Vice Chairman Dorgan, Senator Akaka, my

good friend Senator Inouye, and other members of the committee.

I am Tex Hall, president of the National Congress of American

Indians. I am joined by Julie Kitka, the president of the Alaska

Federation of Natives.

The CHAIRMAN. Welcome.

Mr. HALL. As the committee is aware, NCAI is the largest coalition of tribal governments in the United States, defending tribal

government treaty rights and the Federal trust responsibility since

1944. So on behalf of NCAI and the Alaska Federation of Natives,

we join in strong support of S. 147, the Native Hawaiian Government Reorganization Act.
54

NCAI first offered testimony in support of Native Hawaiian sovereignty and self-determination in 2000, a position that has not

been changed in our recent resolutions, as attached, and we would

like to include those for the record, Mr. Chairman.

The CHAIRMAN. Thank you.

[Referenced documents appear in appendix.]

Mr. HALL. Native Hawaiians are no different than any of our

other Nation’s indigenous groups. Native Hawaiians lived on the

land and governed their own affairs for thousands of years before

European contact. For many years, the United States and nations

all over the world recognized the Government of Native Hawaiians

as a sovereign political entity and signed treaties with them.

Since the illegitimate overthrow of the Hawaiian Kingdom, Native Hawaiians have suffered more than a century of injustice, including the neglect and abuse of their entitlements and the violation of their basic civil rights.

So on behalf of NCAI’s member tribes, I am here today to announce that NCAI believes that the Federal Government must correct this injustice and formally recognize the inherent right of Native Hawaiians to self-governance.

Passage of this bill is also timely because since the U.S. Supreme

Court decided the Rice case in 2000, there has been a flood of nonnatives who run for office positions in the Office of Hawaiian Affairs, and there are similar lawsuits challenging education, housing, land and other programs intended to benefit Native Hawaiians.

So before I conclude my testimony, if also I could briefly address

one specific issue concerning the bill. When the bill was first introduced in 2000, many people questioned the possible effect that Federal recognition of Native Hawaiian Government could have on

funding for Indian programs. NCAI points out that Senator Inouye

has promised that Native Hawaiian programs will never be funded

at the expense of Indian programs, and that has always been the

case.

Section 9 of this bill provides that any appropriations for Native

Hawaiians are to be funded independently of the Bureau of Indian

Affairs. NCAI would request that the committee add clarifying language to include not just BIA appropriations, but also Indian

Health Service and other appropriations for services provided to Indians by the United States.

On a personal note, I had a chance and honor to make several

visits to many of my friends in the room here today, and have developed a strong friendship and relationship with the Native Hawaiian people. In North Dakota, if you wear a cowboy hat and you

are not a real cowboy, they say that you are all hat and no cattle.

[Laughter.]

I have actually met real Native Hawaiians and real Native Hawaiian cowboys. So I am going to be asked to participate in a real

Native Hawaiian rodeo coming up real soon, and I look forward to

not losing so much over there, because I will probably be called ‘‘all

hat and no cattle’’ if I lose. [Laughter.]

So Mr. Chairman, that concludes my testimony, and again, we

are in strong support of the passage of S. 147.

[Prepared statement of Mr. Hall appears in appendix.]
55

The CHAIRMAN. Thank you very much, Tex. I appreciate your appearance again before this committee.

Ms. Danner, welcome.

STATEMENT OF JADE DANNER, DIRECTOR OF GOVERNMENT

AFFAIRS AND COMMUNITY CONSULTATION, COUNCIL FOR

NATIVE HAWAIIAN ADVANCEMENT

Ms. DANNER. Thank you, Mr. Chairman. Aloha, Honorable

Chairman McCain, Vice Chairman Dorgan, and esteemed members

of the committee on Indian Affairs. My name is Jade Danner. I am

the director of Government Affairs and Community Consultation

for the Council for Native Hawaiian Advancement.

It is an honor to testify before you here today on this important

legislation for our communities. I apologize for my voice trembling,

but this is such an important issue for our community. With me

today is Tony Sang, who is the chairman of the State Council of

Hawaiian Homestead Associations. We are very lucky to have him

as a member of our board of directors.

The CHAIRMAN. Welcome, sir.

Ms. DANNER. Mr. Sang’s organization represents 24 homestead

communities and over 30,000 Native Hawaiian people living on Hawaiian Home Lands, communities that were created by the passage

of the Hawaiian Homes Commission Act in 1920. These communities have played a significant role in bringing our people back

from the very brink of extinction. SCHHA has asked me to speak

on their behalf today.

I was born on the Navajo and Hopi Reservations in the community of Tuba City, AZ, from your neck of the woods, Senator. I have

lived 25 years among the Inupiat Eskimos in Barrow, AK. I am Native Hawaiian and I now live in Hawaiian Home Lands in

Waimanalo on Oahu. I have witnessed first-hand the power of the

transformation that can occur in Native communities on the basis

of Federal recognition of a self-governing entity and self-determination.

The Council for Native Hawaiian Advancement is a memberbased non-profit organization aimed at improving access to information and resources by the Native Hawaiian community and the

organizations that serve it. We organize the largest annual conference dedicated to Native Hawaiian community development.

The Governor has made some strong comments. One of the

things that she commented on was the vital need for our culture

in the State’s economy. CNHA has looked at the economic impact

of just our programs and what they bring to the State of Hawaii.

While $59 million goes toward direct benefits to Native Hawaiians,

it generates $147 million in economic production for all of Hawaii’s

people. So when we build a house on Hawaiian Home Lands for

Native Hawaiians to live in, those houses are contributing jobs to

non-Natives and Natives alike, and that is an important thing, I

think, to note.

From our consultation with the Native Hawaiian community,

there is clear consensus about overwhelming support for the passage of this bill, and for recognizing a Native Hawaiian Government as the vehicle to enhance self-determination for Native Hawaiians. Several public laws already authorize programming to ad-
56

dress Native Hawaiian conditions. Private beneficial trusts also

contribute to our well-being. We have resources, Senators.

But as the American Indian and Alaska Native experience has

demonstrated, resources are not enough. They are not enough

alone. It is vital for our survival as a distinct thread in the human

fabric that we have autonomy in our internal affairs, that we are

empowered in meaningful ways to make our own solutions and utilize our resources in a way that we see fit.

The Apology Resolution provides for an accurate account of Hawaii’s history and its entry into the Union and commits the United

States to commencing the much-needed process of reconciliation. It

is a history that I will not belabor here. But suffice it to say that

our experience and circumstance is no different than many other

Native American peoples. As a result, our current conditions are

much the same.

Despite these adversities, our hope and our faith in the American

system remains. Like other Native Americans, we continue to

honor and fulfill our responsibilities as American citizens. Many of

our sons and daughters have committed their whole lives to military service, some rising to the highest ranks. I am proud to say

that 10 members of the Hawaii State Legislature, a significant portion of Governor Lingle’s administration, including the Lieutenant

Governor, and of course Senator Akaka, are all Native Hawaiian.

We understand as Hawaiians that in addition to these individual

responsibilities as Americans, we have a collective responsibility to

perpetuate Native Hawaiian culture, language, knowledge and traditions. It is this obligation that we need this committee and this

body’s help to fulfill.

We need self-governance to formulate and implement our own solutions and to hold ourselves accountable to those results. We need

it because we do not exist anywhere else. If we are denied self-determination and self-governance in Hawaii, in our motherland, we

are sure to go the way of so many other Natives indigenous to

these shores and now extinct. We will be a memory, and that will

be the saddest story in this great Nation’s history. We will be lost

to the world.

We do not seek recognition of our Native government in order to

do gaming, Senators, and we are not interested in eating out of the

Indian pot. We seek passage of this bill for a more basic reason.

We need to be at the helm of our own future. We want the United

States to honor its trust relationship to us, and we want to engage

fully in the policy of self-determination and self-governance.

We want to honor our obligation to our ancestors, whose sole existence was to bring us forward, just as we exist to bring future

generations of Hawaiians forward. Humbly, we ask the members of

Congress to pass this legislation because it empowers us to hold

our own destiny in our own hands. We ask that you deal with us

in a manner that is fair and just.

Mahalo for this opportunity to address the committee on this important legislation. The Council for Native Hawaiian Advancement

looks forward to working with the committee on passage of this bill

and on future efforts towards reconciliation with the Native Hawaiian people.

Thank you.
57

[Prepared statement of Ms. Danner appears in appendix.]

The CHAIRMAN. Thank you very much, Ms. Danner.

What are your views on how well the State of Hawaii has carried

out its responsibilities of administering the ceded lands for the benefits of Native Hawaiians?

Ms. DANNER. I would agree with the Governor’s assertion that in

recent years, maybe the last 10 to 15 years, there has been a much

better effort toward managing those resources. But in truth, that

is one of the fundamental reasons I believe that we need to control

those assets, because we need to be able to hold ourselves accountable from within our community, and not knocking on the door of

the State government who is our guardian. They have done a tremendous job in recent years.

The CHAIRMAN. Thank you.

President Hall, does the majority of Indian country support this

legislation?

Mr. HALL. Yes; they do, Mr. Chairman. It was discussed at

length in our recent resolution which is attached to my testimony,

but it was unanimously passed at the NCAI annual convention,

Mr. Chairman, in support.

The CHAIRMAN. Thank you.

Chairwoman Apoliona, how much money does the Office of Hawaiian Affairs currently receive from the State of Hawaii for the

benefit of Native Hawaiians?

Ms. APOLIONA. From our legislature, we receive approximately $2

million a year.

The CHAIRMAN. $2 million a year.

Ms. APOLIONA. And from the revenues of ceded lands, we receive

approximately $9 million a year.

The CHAIRMAN. Does the airport in Honolulu sit on——

Ms. APOLIONA. Yes; it does, Senator.

The CHAIRMAN. And do you get any revenue from that?

Ms. APOLIONA. At the current time, the Native Hawaiian Trust

of the Office of Hawaiian Affairs does not receive revenues from

those ceded lands of the airport, although the obligation still remains.

The CHAIRMAN. Why do you think that is?

Ms. APOLIONA. A couple of years ago, there was legislation

passed here in the U.S. Congress that reinforced the Department

of Transportation’s request that revenues not be paid from the airport trust revenues that are derived from the airports in Hawaii.

However, the obligation still remains for the payment of a 20-percent pro-rata share to the Native Hawaiian Trust from those lands,

from use of those lands.

The CHAIRMAN. But that is not the case?

Ms. APOLIONA. The congressional act prohibits the State of Hawaii from paying the pro-rata share from the airport trust funds.

The CHAIRMAN. How many people currently qualify as homesteaders under the Hawaiian Homes Commission Act?

Ms. APOLIONA. I would like to turn to Mr. Micah Kane.

Mr. Kane. Chairman McCain, my name is Micah Kane. I am the

chairman of the Hawaiian Homes Commission. I manage the Department of Hawaiian Home Lands which has the trust respon-
58

sibility of all of the lands and residences and people who are on our

waiting list.

Currently right now, as Mrs. Danner articulated, we have 7,400

residential and agricultural lessees that we serve. We also currently have about 18,000 individuals who are qualified Native Hawaiians who would have the opportunity, should our trust present

them for home ownership or land stewardship.

The CHAIRMAN. How many people would be eligible as, quote,

‘‘Native Hawaiians’’ as the bill defines this term, to participate in

the vote to create the new Native Hawaiian entity?

Ms. APOLIONA. There are approximately 400,000 Native Hawaiians throughout this country. By choice, they will have to make a

decision whether they will participate in the process for reorganizing the Native Hawaiian Government. It will be their decision.

The CHAIRMAN. There are 400,000 people who will decide themselves whether they qualify as Native Hawaiians?

Ms. APOLIONA. Part of self-determination, Senator, provides for,

as we understand it, the ability for a community to define its membership, and that we would be afforded similarly that decision

making process as Native Hawaiians. As we have said earlier, the

impact of passage of this bill in our minds is very minimal, as my

testimony has said. The financial impact to the Federal budget is

very minimal, according to the report of the Congressional Budget

Office.

The CHAIRMAN. If you will pardon me, I was just asking how

many people would be eligible as Native Hawaiians, and the answer, I guess, is 400,000?

Ms. APOLIONA. Approximately, should they choose to participate

in reorganizing the Government.

The CHAIRMAN. Thank you very much.

Senator Dorgan.

Senator DORGAN. Mr. Chairman, first of all, thank you again all

of you for your testimony. Chairman Hall, thank you for appearing

frequently before this committee and providing useful testimony as

we consider these issues. Your support of this legislation is important, and your response to the Chairman’s question I think gives

us the indication of the strength of support across the country

among Indian tribes.

Chairman Apoliona, I want to ask the question, if there is no financial impact here on the Federal budget, and my understanding

is this is not something that scores with a substantial problem for

us, if that is the case, then the issues that we deal with on reservations here in this country with Native Americans or the issues that

I know you are concerned about with Native Hawaiians, of unemployment and poverty and extraordinarily high mortality rates

from heart disease and diabetes and so on, how will passage of this

legislation, if it has no financial impact, how will it affect and address some of those issues, do you think?

Ms. APOLIONA. I think, as has been mentioned by previous

speakers, the ability to begin to reconcile our historic wrongs, and

through the self-governance process allow for Native Hawaiians as

a people to oversee and direct their future and administration of

their assets, both land and resources that will be brought to bear
59

and under the administration of a Native Hawaiian governing entity.

The 400,000 Native Hawaiians that I refer to, Senators, across

this Nation, Native Hawaiians, is approximately 400,000 of all

ages. There are much less adult Hawaiians as part of these statistics. But it will give an opportunity to guide the future in a selfdetermined way via a Native Hawaiian government that will be

structured by Native Hawaiians.

Senator DORGAN. So you are saying in a sense that the self-governance that is available under this would provide the ability to

better manage the resources?

Ms. APOLIONA. Better manage the resources, implement programs that will address the needs of our people collectively, less dependence on government funding, and really provide us a strength

for Native Hawaiian communities to participate in our national

and local economy.

Senator DORGAN. Mr. Chairman, I think that the record here

that has been submitted by our witnesses provides a pretty substantial amount of information for the committee. I hope that we

can perhaps as we go along and consider this legislation, call on

them perhaps by submitting additional questions for additional information.

I want to thank all of you for participating this morning in this

important hearing.

The CHAIRMAN. Thank you very much, Senator Dorgan.

Senator Akaka.

Senator AKAKA. Thank you very much, Mr. Chairman.

I also want to add that when we talk about support, that our

State legislature, since the year 2000, has on two occasions passed

resolutions supporting this bill.

My first question is to Jade of CNHA. Jade, CNHA has done

workshops on the positive economic impact of Native Hawaiian programs on Hawaii’s economy. Can you share some of the data with

this committee on those programs?

Ms. DANNER. Yes, Senator; I wanted to clarify for Chairman

McCain, first, that the people who are eligible for homesteads, the

reason that the number is different and that it does not have a

budgetary impact is that all legislation save the Hawaiian Homes

Commission Act is already using the definition of Native Hawaiian

that is in the bill. So the funds that are appropriated now relate

to that.

But according to the economic impact, and this is linked, because the $59 million that I talked about is for programs. It is Federal

funding that comes for programs for Native Hawaiian people with

the definition of the bill. That, in turn, generates the $147 million

in economic productivity. So this is a significant resource for our

State’s economy. It is, in looking at diversity of funding and trying

to build an economy that is more diversified, it is certainly one of

the significant sources of diversification for our community in

terms of the homes and the construction and the private sector

businesses that providing these services creates.

Senator AKAKA. I want you to please convey my aloha to your

sister Robin. I should tell you that the first time, Mr. Chairman,

I visited Point Barrow in Alaska, I met many people, and I met
60

these two girls and made the comment, you two girls look like you

are from Hawaii. [Laughter.]

And to my surprise they said yes. They were from Hawaii. They

were Jade and her sister Robin, who eventually moved back to Hawaii and have been working in our interests.

Jade, I thank CNHA, particularly you and your sister, and also

Tony Sang, for being here today and supporting us, and for all of

the outreach that CNHA has done to the people of Hawaii to help

them understand this legislation.

Can you share with my colleagues what CNHA has done to help

educate the people of Hawaii about this bill?

Ms. DANNER. Absolutely, Senator. The Council for Native Hawaiian Advancement, we provide information and resources, and so

one of the things we do is conduct workshops in the communities

on specific issues that relate to Native Hawaiian concerns. We have

held over 50 community-based workshops in Hawaii and across the

continental United States to Native Hawaiian communities, also

attended by members of the Hawaii business community and the

community at large, on what the Akaka bill does.

We also try to put it in a context, because for Native Hawaiians

to imagine what this means in the context of Federal law, we do

not get to look down the road, 15 miles down the road, and see the

next-door neighbor tribe and see how it plays out as a circumstance, because we are so far removed. So we have tried to

bring information about Federal Indian law, about the history, and

about how these authorities helped to bring basic services, housing,

education, welfare, those kinds of real services to Native Hawaiians

and to their own control, and how American Indians and Alaska

Natives have used that to build their communities up.

I saw a recent article that states that found that self-determination is working. It is the first working policy for American Indians

and Alaska Natives, a Harvard study no less. And so we take those

out to the community and we have reached over 5,000 Native Hawaiians. What we see is as Native Hawaiian knowledge about this

world of Indian law and how self-governance works for American

Indians, and we can make it more concrete for them, then support

grows and understanding grows, and they start to have real ideas

about how to implement this very needed thing.

This is just an example of one of the materials that we distribute

to each member. Each person who comes to our workshops gets a

booklet this thick that contains the full text of the legislation, and

some frequently asked questions and background information.

So those are some of the kinds of efforts we have done.

Senator AKAKA. I know the Hawaiian community has supported

the bill. I know that other organizations as well have done work

in this area, in educating the Hawaiians.

Tex Hall of NCAI, and also Julie Kitka, thank you so much for

being here, and thank you for your unwavering support throughout

the past 6 years. We would not have been able to have such a

strong bill were it not for your willingness to share you, and I

quote, share your ‘‘lessons learned.’’ Some of my colleagues have expressed concern that providing Federal recognition will be harmful

to American Indians and Alaska Natives. I know you have made
61

some comments on this already, but what is your additional response to that comment? Tex?

Mr. HALL. Thank you for the question, Senator Akaka. I would

disagree with that completely. Federal recognition and self-determination works. As Jade Danner had mentioned, the Harvard

study clearly shows that it works. When indigenous peoples can

govern and manage their own affairs, their health improves, the

economy improves, the educational literacy improves, their Native

culture remains intact, their Native language remains intact, better relations are developed within the community and the surrounding community within the State. Everyone really improves

with the socioeconomic conditions.

So Federal recognition, self-determination clearly is a great, I

think it is a great victory for American Indian and Alaska Natives.

So if that is afforded in S. 147, I am firmly confident that that will

occur with the Native Hawaiians as well.

Senator AKAKA. Thank you very much.

Julie.

Ms. KITKA. Mr. Chairman, Senator Akaka, to respond to your

question, my name is Julie Kitka. I am the president of the Alaska

Federation of Natives.

I agree with Chairman Tex Hall that self-determination is one of

the most successful Federal policies that we have in recent experience. We believe that the recognition of the Native Hawaiians is

just another building block in the whole notion of self-determination.

I would also cast self-determination as part of strengthening democracy here at home. The United States has made a policy of

strengthening democracy and freedom all around the world. I think

it is very important to look at this recognition bill as a building

block of self-determination and strengthening democracy here at

home.

Native Americans, American Indians, Alaska Natives and Native

Hawaiians have the highest rate of participation in the military

services since World War II in every branch of the service. I look

at the Vietnam War, in particular Alaska Natives, we had the

highest rate of volunteerism for that, not draft. I think it is really

important to strengthen democracy at home, and I think the recognition of the Native Hawaiians is a component of strengthening

democracy, as well as furthering self-determination.

I would hope that once the Hawaiians are recognized, that the

Congress would be ready to move on a whole other level of self-determination which would empower our people to contribute even

more to this country.

Thank you.

Senator AKAKA. Thank you very much for your responses. I also

want to say aloha to the trustees of the OHA, who are here, and

welcome and thank you for coming.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you very much.

I thank the witnesses for coming such a long way. We appreciate

your views. As I said, we will move this to a vote of the committee

by sometime next week.

This hearing is adjourned. Thank you.
62

[Whereupon, at 11:25 a.m. the committee was adjourned, to reconvene at the call of the chair.]
(63)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. NEIL ABERCROMBIE, U.S. REPRESENTATIVE FROM

HAWAII

Thank you Chairman McCain and Vice Chairman Dorgan for allowing me to submit my testimony in support of S. 147, the Native Hawaiian Government Reorganization Act of 2005. I appreciate your willingness to hold this hearing and to hear

from the people of the State of Hawaii.

This bill would provide Native Hawaiians a process through which the Federal

recognition. Rather than summarize the details of the legislation, I would like to

focus on why this legislation is so urgently needed in Hawaii and why passage of

S. 147 would be the fair and honorable thing to do.

The State of Hawaii was once the Kingdom of Hawaii, with a monarchy that was

afforded full diplomatic recognition by the United States. On January 17, 1893, the

government of the Kingdom of Hawaii was overthrown by a group of American citizens, who acted with the support of U.S. Minister John Stephens and a contingent

of U.S. Marines from the U.S.S. Boston. It is important to note that the Native Hawaiian people never willingly relinquished their inherent claims to sovereignty and

to this day, retain their unique identity through their distinct cultural, social and

political traditions and institutions.

Following the annexation, the conditions of Native Hawaiians in the territory of

Hawaii declined to such an extent that Congress passed a law to set aside more

than 200,000 acres of land to address these problems. These lands were not given

back to the Native Hawaiian people. Rather, the Federal Government held the title

and administered these lands for Native Hawaiians. When Hawaii achieved statehood, these lands were included in a public trust and the Federal Government

transferred administrative responsibility to the government of the State of Hawaii.

To this day, Native Hawaiians remain subject to the final authority of the Federal

Government.

Native Hawaiians are a distinct indigenous population with their own culture,

identity and assets set aside for their benefit. However, unlike other indigenous populations, Native Hawaiians do not have control over their own land, resources and

other assets. S. 147 would remedy this error and extend to Native Hawaiians the

policy of self-governance and self-determination currently practiced by American Indians and Alaska Natives.

It is important to note that the Federal Government already treats Native Hawaiians as an indigenous population in many respects. The U.S. Congress has enacted

over 160 laws designed to address the conditions of Native Hawaiians. These Federal laws provide for the provision of healthcare, education, job training, the preservation of native languages, the protection of Native American graves and the repatriation of Native American human remains. Thus, recognition would not necessitate new programs nor would it impact existing programs for American Indians

and Alaska Natives. It simply gives Native Hawaiians a seat at the table and a

voice in matters affecting their destiny.
64

It is time for the United States to formally recognize its special relationship and

extend justice to the Native Hawaiian people.

PREPARED STATEMENT OF HON. ED CASE, U.S. REPRESENTATIVE FROM HAWAII

Mr. Chairman, Senator Dorgan, and members of the committee, good morning

and aloha! As the Representative from the Congressional district with more Native

Hawaiians than any other in our country, I am honored today to testify in unqualified support of S. 147, the Native Hawaiian Government Reorganization Act, introduced by my colleagues, Senators Akaka and Inouye, on January 25, 2005. My

House colleague, Congressman Neil Abercrombie, and I co-introduced companion

legislation, H.R. 309, on the same day in the House. Our collective actions mark a

united and continuing commitment by Hawaii’s entire delegation to the most vital

single piece of legislation for our Hawaii since Statehood.

This legislation affirms the longstanding political relationship between Native Hawaiians, the indigenous peoples of our Hawaii, and our Federal Government, and

extends to Native Hawaii is the time-honored Federal policy of self-determination

provided other indigenous ?peoples under U.S. jurisdiction.

Mr. Chairman, allow me to be direct: This legislation is indispensable both to the

Hawaiian people, wherever they are, and to all of our Hawaii. The stakes are nothing more or less than the survival and prosperity not only of our indigenous people

and culture, but of the very soul of our Hawaii as we know and love it.

From that perspective, I speak to you today on behalf of all of Hawaii’s people,

and all those worldwide for whom Hawaii, in all of her forms, be they natural, environmental, cultural social, or spiritual, is a truly special and unique place. And I

say to you that Hawaii—the Hawaii that is the indigenous home of all Native Hawaiians, that my own ancestors and many other non-Native Hawaiians embraced

since recorded Western discovery in 1778, and that so many throughout the world

continue to view as a beacon for what can be in our world—our Hawaii has never

been so at risk as today.

It is at risk because it is a creation of and rests upon the foundation of our Native

Hawaiian people and culture, and their survival and prosperity are at risk. As they

go, so goes Hawaii as we know it, and a Hawaii which is not Hawaiian is not a

Hawaii I can bear to envision.

Nor is Federal recognition for Native Hawaiians exclusively a Hawaii issue. Census figures show that our country is home to more than 400,000 Native Hawaiians,

with 160,000 living outside of Hawaii. And clearly the preservation of the Hawaii

that so many throughout our world have come to know and love is of great concern

to so many well beyond our borders.

So our goal is not only reaffirming the longstanding historical and political relationship between Native Hawaiians and the United States, not only delivering fairness and justice to Native Hawaiians, but ensuring the very survival and prosperity

of our Native Hawaiian people and culture and, through them, Hawaii itself. And

this is a truly common goal, evidenced by road-based support among Hawaii’s political leaders, and Hawaiians and non-Hawaiians alike, which spans ethnic, partisan

and other distinctions.

The goal of assisting Native Hawaiians is not new to our Federal Government.

Beyond a longstanding relationship that was reaffirmed when Hawaii became a territory in 1900 and a State in 1959, over 160 Federal statutes have enacted programs

to better the conditions of Native Hawaiians in areas such as Hawaiian homelands,

health, education and economic development, all exercises of Congress’ plenary authority under our U.S. Constitution to address the conditions of indigenous peoples.

These have been matched by State and quasi-autonomous entities such as the Office

of Hawaiian Affairs and the Department of Hawaiian Home Lands, and private entities like the Kamehameha Schools. And they have born fruit with a renewed focus

on unique Native Hawaiian needs and a renaissance of Native Hawaiian culture.

Federal recognition is the big picture framework by which these indispensable efforts can be carried forward into the next generation of Native Hawaiian governance.

Federal recognition is also the time-honored means of memorializing our government’s relationship With the indigenous peoples of the contiguous 48 States and

Alaska. There, either government-to-government treaties or the Bureau of Indian

Affairs recognition process or legislative recognition have extended self-determination and affirmed relationships. Although the difference between those peoples and

Native Hawaiians is exclusively geographic, such means have simply not been either

available or exercised in the case of Native Hawaiians.
65

Nor is the goal of extending Federal recognition to Native Hawaiians a new one.

The enactment into law in 1993 of the Apology Resolution [P.L. 103–150] expressed

a national commitment to reconciliation efforts between Native Hawaiians and the

Federal Government. Subsequent efforts through the Departments of Justice and

Interior, as well as the White House Initiative on Asian Americans and Pacific Islanders established by executive orders of both Presidents Clinton and Bush, identified Federal recognition legislation and the inclusion of Native Hawaiians in Federal

programs and services as top priorities. In fact, during the 106th Congress, the

House passed Federal recognition legislation for Native Hawaiians, on September

26, 2000.

Most recently, the Office of Hawaiian Relations was established within the Department of the Interior. Structurally organized under the Assistant Secretary for

Policy, Management, and Budget, this new office is a welcome and positive step forward in coordinating policies within the Department as they affect Native Hawaiians. Already the Department oversees pertinent issues such as Hawaiian home

lands, historic preservation, the Native American Graves Protection Act, the Native

Hawaiian Culture and Arts Program, and the consideration of Native Hawaiians in

natural resources management, including our Hawaii national parks.

The time is long overdue for our Federal Government to create a permanent and

sustainable relationship with Native Hawaiians in order to resolve longstanding

issues and ensure the survival and prosperity of the Native Hawaiian people and

culture and of their special home. For all of us in Hawaii, Mr. Chairman, and in

fact for all Native Hawaiians wherever throughout our country and world they may

live, I urge the passage of this crucial legislation.

PREPARED STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH

DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

I thank the chairman for scheduling this hearing today on a bill that is very important to two of our most distinguished members of this committee—the former

chairman and vice chairman, Senator Inouye, and the principal sponsor of this legislation, Senator Akaka.

I have had the opportunity to visit with the chair of the Board of Trustees of the

Office of Hawaiian Affairs, and I have learned that through this bill, the Native Hawaiian people simply seek a status under Federal law that is equal to that of America’s other Native peoples—American Indians and Alaska Natives.

Federal programs for Native Hawaiians that provide support for education, health

care, housing, job training and employment, and protection of cultural resources

have been in place since the 1970’s, and that is why the Congressional Budget Office has projected that there will be no impact on the Federal budget—whether

measured in terms of budget authority or outlays—associated with the extension of

Federal recognition to a Native Hawaiian government.

And to those who are concerned that this bill will give rise to conditions that may

be similar to some of the less desirable dynamics in Indian country, this reorganized

Native Hawaiian government will sit down and negotiate with the United States

and the State of Hawaii to work out their relationships and the exercise of their

respective governmental powers and authorities.

Once the three governments have reached agreements, the Congress and the legislature of the State of Hawaii will have to enact further legislation to implement

their agreements. So we will have the opportunity to fully understand the nature

and scope of these proposed relationships and sharing of governmental powers and

authorities before we vote on legislation to make their agreements part of Federal

law.

I believe that through this bill, the Senators from Hawaii have laid out a process

that is not only reasonable and prudent, but which will enable the three governments to develop good working relationships with one another that will be premised

upon their consensus.

PREPARED STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

I thank our chairman for agreeing to schedule this hearing today so that our Governor could be present as the committee considers this measure that we believe is

vitally important to the State of Hawaii.

Mr. Chairman, in the interest of time., I will ask that my full statement be included in the record, and I will limit my remarks to just a few points.
66

First, I want to welcome our Governor, the honorable Linda Lingle, to this hearing, and to welcome as well the chairperson of the Board of Trustees of the Office

of Hawaiian Affairs, and all of those who have traveled so far to be with us today.

Second, because so much of what we are here today to consider arises out of

events that took place long ago, I think it is important to note the following—as

most of us know, the government of Hawaii that represented the Native Hawaiian

people was overthrown with the assistance of U.S. troops on January 17, 1893; but

what is less well known, is that notwithstanding the overthrow of their government,

the Native Hawaiian people never ceased their expression of their political status;

• Through the Royal Societies and later, the Hawaiian Civic Clubs, all manner

of cultural, political and social activities and relationships unique to the Native

Hawaiian people were kept intact;

• This distinct status of the Native Hawaiian people is so widely accepted as part

of the fundamental societal fabric of Hawaii, that it is not at all surprising that

ALL of the citizens of Hawaii came together in 1978 to amend the State’s constitution to establish the Office of Hawaiian Affairs—in order to assure that Native Hawaiians would have a distinct voice in the government of Hawaii.

As a member of the Territorial legislature of Hawaii, I was privileged to take part

in the negotiations that led to our compact with the United States, and I know first

hand what happened at that time.

It can be seen in our Admissions and it is evidenced in our State Constitution.

The United States and the State of Hawaii agreed at that time that Native Hawaiians would continue to have a separate status under Federal law—the Statehood

Act so provides—as well as under State law—as our State’s Constitution provides.

At no time, was there ever discussion of terminating the distinct status of the Native Hawaiian people—under either Federal or State law.

At no time did the United States jettison its relationship with the Native Hawaiian people—in fact, in contrast, the United States retained the authority to enforce

against any breach of the Hawaiian home lands trust, and to consent to any amendments to the Hawaiian Homes Commission Act.

Over 160 Federal laws have subsequently been enacted by the U.S. Congress and

signed into law by the succeeding Presidents of the United States—each of those

laws building upon and adding to the founding principles that were recognized at

Statehood and before—that Native Hawaiians are both citizens of our State and of

the United States, but like the other indigenous, native people of America—they

have their own distinct status under the law. That has never changed.

We are here today to consider a bill that the Congressional Budget Office has consistently concluded has no impact on the Federal budget.

This bill does not make Native Hawaiians into American Indians or Alaska Natives—nor does it make Native Hawaiians eligible for programs that are designed

to assist American Indians or Alaska Natives.

We have put some disclaimers in this bill, but in my view, they are not necessary—because it is clear, and has always been clear, that Native Hawaiians are

a distinct and unique native people who are indigenous to the United States—but

they are not American Indians or Alaska Natives, nor do they seek to be.

Rather they seek parity—equality—self-determination and the right to self-governance as our Federal policies have recognized for the last 35 years.

The fact that the citizens of our State—through our Governor and our legislature—so strongly support the reorganization of a Native Hawaiian government and

the restoration of a relationship with the United States should, in my mind, hold

great weight.

We are not naive nor do we enter this arena lightly.

We have tried for many, many years now to secure passage of this legislation, and

we have not, nor will we—be deterred from the course of action that we believe is

in the best interests of all of the citizens of our State.

So I thank you, Mr. Chairman, and Vice Chairman Dorgan, for affording us the

opportunity to have our voices heard in this—our Nation’s capital.

PREPARED STATEMENT OF LINDA LINGLE, GOVERNOR, FROM HAWAII

Chairman McCain, Vice Chairman Dorgan, Senator Inouye, Senator Akaka, and

other committee members, thank you for this opportunity to speak with you today

about an issue of great importance to my State.

Knowing the many pressing national issues you are facing, I am especially grateful for the time you are allocating to hear testimony today on S. 147, the Native

Hawaiian Government Reorganization Act of 2005.
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I am appearing before you on behalf of the people of Hawaii. We are seeking justice for the Native Hawaiian people, who have been made to wait too long for the

kind of recognition that Congress has granted to America’s other indigenous peoples.

Let me address upfront the claim by some opponents of S. 147 that Federal recognition of Native Hawaiians constitutes a race-based preference or racial discrimination. Calling S. 147 a race-based preference ignores both the facts and the historic

relationship that has existed between the United States, the former Kingdom of Hawaii and the Native Hawaiian people since at least 1826.

Let’s look at the facts.

Native Hawaiians were governed by their own leaders and their own laws long

before Europeans and Americans came to the Hawaiian Islands.

The United States recognized and understood that the Kingdom of Hawaii was

a sovereign nation as evidenced by the exercise of Congress’ constitutional authority

to confirm treaties between the United States and the Kingdom of Hawaii as far

back as 1826.

When the United States annexed Hawaii as a territory, it effectively subordinated

the Native Hawaiian government to the Federal Government. Hence the United

States’ relationship to the people governed by the Native Hawaiian government was

political, not racial, in nature.

To those who opine that S. 147 will result in racial discrimination, I would posit

that the only discrimination that can reasonably be associated with this bill is if

it fails to become law. Let me explain this point.

The United States is inhabited by three indigenous peoples-American Indians, Native Alaskans, and Native Hawaiians.

While these three indigenous groups differ in culture, history, and anthropological

origin, all share three fundamental attributes: (1) they were here long before any

European explorer ever set foot on the North American continent or the Hawaiian

archipelago; (2) they lived according to their own governmental structures on their

homelands long before the Federal Government of the United States was imposed

upon them; and (3) the United States historically acknowledged their existence as

distinct nations.

Congress has given two of these three populations full self-governance rights. The

Native Hawaiian Government Reorganization Act allows Native Hawaiians to receive parity with the Nation’s other indigenous peoples. To withhold recognition of

the Native Hawaiian people therefore amounts to discrimination since it would continue to treat the Nation’s three groups of indigenous people differently.

The United States has historically recognized Native Hawaiians as a separate indigenous people by entering treaties with them as early as 1826 and enacting over

150 pieces of legislation relating them, including measures as recent as 2004.

Yet today there is no one governmental entity able to speak for or represent Native Hawaiians. The act before you today would finally allow the process to begin

that would bring equal treatment to the Native Hawaiian people.

You are not being asked to extend the ability to establish a self-governing structure to the Native Hawaiians because of their race. Rather you are being asked to

do so because of their unique status as the indigenous people of a once sovereign

nation to whom the United States has a recognized trust responsibility. Passage of

S. 147 would grant simple, but profound justice to the proud Native Hawaiian people whose future well-being is essential to the long-term well-being of the State of

Hawaii.

Besides granting long-delayed justice to the Native Hawaiian people, S. 147

achieves four important results for everyone in the State of Hawaii.

No. 1. Enhances the ability of individual Native Hawaiians to become more selfsufficient, which reduces their reliance on State and federally funded services.

A Native Hawaiian government using existing appropriated funds will be in a position to engage in meaningful economic development that not only will generate

revenue for social services and other programs, but most importantly will create

new employment opportunities for individual Native Hawaiians.

No. 2. Provides greater accountability for and makes more efficient and effective

use of State and Federal programs.

In more than 150 pieces of legislation passed during the past 85 years Congress

has recognized the unique needs of Native Hawaiians. Having a single governmental entity to represent and speak for the Native Hawaiian people will maximize

the effectiveness of these programs and make it easier to ensure accountability.

No. 3. Creates the best opportunity to preserve the Native Hawaiian culture.

The unique nature of Hawaii is derived largely from the indigenous culture of the

Native Hawaiians.

Native governments, like the one established by this act, are well documented to

best nurture and protect traditional native culture and values.
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In Hawaii, where the Native Hawaiian culture is the primary attraction for a

tourist industry that fuels the State’s economy, preservation of the Native Hawaiian

culture is an economic imperative.

No. 4. Protects existing programs by clarifying that the relationship between the

United States and the Native Hawaiian people has government-to-govermnent origins rather than racial origins. Current and continuing legal challenges are unnecessarily putting programs to benefit Native Hawaiians at risk.

As I previously testified before your committee in 2003, this bill is vital to the

survival of the Native Hawaiian people, it is vital to providing parity in Federal policy for all native peoples in America, and it is vital to the continued character of

the State of Hawaii.

Let me conclude by telling you that this bill will be a unifying force for our State.

It is supported by every elected official of both major political parties, it is supported

overwhelmingly by people of all ethnic backgrounds, and it is supported by a majority of the State’s business community, including the two largest banks.

Your passage of S. 147 will allow a process to begin that will lead to the kind

of self-government enjoyed by the Nation’s other indigenous people and it will reaffirm our Nation’s commitment of equal treatment for all its citizens.

Thank you again for allocating the committee’s valuable time to consider this matter of great importance to the people and the State of Hawaii.
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Æ