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CAN CONGRESS CREATE A RACE-BASED

GOVERNMENT? THE CONSTITUTIONALITY

OF H.R. 309/S. 147

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JULY 19, 2005

Serial No. 109–37

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

JULY 19, 2005

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3

WITNESSES 

The Honorable Mark Bennett, Attorney General, State of Hawaii 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 8

Mr. Shannen W. Coffin, Partner, Steptoe & Johnson, L.L.P. 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 13

Mr. H. William Burgess, Founder, Aloha for All 

Oral Testimony ..................................................................................................... 23

Prepared Statement ............................................................................................. 25

Mr. Bruce Fein, President, The Lichfield Group 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 34

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Joint Prepared Statement of the Honorable Neil Abercrombie and the Honorable Ed Case, Representatives in Congress from the State of Hawaii ............ 56

Appendix to the Statement of the Honorable Mark Bennett: Table of Federal 

Acts Affecting Native Hawaiians ........................................................................ 60

Appendix to the Statement of the Honorable Mark Bennett: ‘‘The Authority 

of Congress to Establish a Process for Recognizing a Reconstituted Native 

Hawaiian Governing Entity,’’ by Viet D. Dinh, Georgetown University Law 

Center and Bancroft Associates PLLC ............................................................... 81

Appendix to the Statement of the Honorable Mark Bennett: Position Statement of the Attorney General of the State of Hawaii ....................................... 107

Appendix to the Statement of Shannen W. Coffin: Brief of Amici Curiae,

Campaign for a Color-Blind America, Americans Against Discrimination 

and Preferences, and the United States Justice Foundation, In Support 

of Petitioner, Filed by Shannen W. Coffin, Counsel of Record for Ami 

Curiae in the case of Harold F. Rice v. Benjamin J. Cayetano ........................ 140

Appendix to the Statement of Shannen W. Coffin: Harold F. Rice v. Benjamin 

J. Cayetano, On Petition For a Writ of Certiorari To The United States 

Court of Appeals For The Ninth Circuit, Respondent’s Brief in Opposition ... 153

Appendix to the Statement of Shannen W. Coffin: United States Senate, 

Republican Policy Committee, Jon Kyl, Chairman, ‘‘Why Congress Must 

Reject Race-Based Government for Native Hawaiians’’ .................................... 157

Appendix to the Statement of H. William Burgess: HI-Akaka Bill—Survey 

2 ............................................................................................................................. 170

Letter to Senator John McCain from the Honorable William B. Moschella, 

Assistant Attorney General, Office of Legislative Affairs, U.S. Department 

of Justice ............................................................................................................... 183

Page

IV

Letter to the Honorable Steve Chabot from Senator Jon Kyl .............................. 185

Prepared Statement of David B. Rosen, Esq. ........................................................ 209

(1)

CAN CONGRESS CREATE A RACE-BASED GOVERNMENT? THE CONSTITUTIONALITY OF 

H.R. 309/S. 147

TUESDAY, JULY 19, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 2:07 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

(Chair of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. This is the Subcommittee on the Constitution. I am the Chairman, Steve Chabot. 

We expect the Ranking Member, Mr. Nadler, to be here very shortly. At that time we are going to recognize Mr. Abercrombie, who 

wants to bring up something that we are happy to participate in. 

We welcome everyone here today. I would like to thank everyone 

for coming. Some of you have clearly come from a very long distance from here. This is a hearing before the Subcommittee on the 

Constitution to examine whether Congress can create a race-based 

government within the United States, and, in particular, the constitutionality of H.R. 309, a bill that would authorize the creation 

and recognition of a Native Hawaiian quasi-sovereign government. 

I would like to recognize, as I mentioned at the outset, that this 

Committee does not have jurisdiction over H.R. 309 itself, but I believe this bill and the companion bill in the Senate raise constitutional questions of such magnitude that we would be doing a disservice to the public and to our constituents if we did not closely 

examine the constitutional implications of H.R. 309. 

We have a very distinguished panel before us here this afternoon. I would like to thank them for taking the time to provide us 

with their insight and expertise. I know Mr. Burgess, who flew all 

the way from Hawaii, had an extremely long trip. I appreciate his 

efforts particularly in coming here. We look forward to the testimony of all the witnesses here this afternoon. 

Since the Civil War, the United States has strived to become a 

color blind society. We have struggled to insure that the principles 

on which our country was founded are applied equally, and that 

every person receives just and fair treatment under our laws. 

But the issue that we are focused on today suggests that race 

should be the sole criteria for how individuals are treated, and 

many of us believe that this would be a mistake. In asking Congress to take steps toward authorizing the creation of a race-based 

2

government, some refer us back to our Nation’s history and treatment of Native American Indians in this country. Under article 1, 

section 8, Congress has the power ‘‘to regulate commerce with the 

Indian tribes.’’

It is under this power that we have afforded unique protections 

to Indian tribes over the last 229 years. But those protections center on preserving the quasi-sovereign tribal status that Indians 

have lived under since the beginning of their existence, a point that 

has been reiterated time and time again by the Supreme Court. 

In fact, in U.S. v. Sandoval, the Supreme Court rejected the idea 

that ‘‘Congress may bring a community or body of people within 

range of this power by arbitrarily calling them an Indian tribe, 

finding that in respect of distinctly Indian communities, the questions whether, to what extent and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by 

Congress.’’

It is on this premise that unique treatment has been provided to 

Indians. It is on this basis that Native Hawaiians would seek 

quasi-sovereign status similar to Native American Indians. However, unlike Native American Indians and Alaska tribes, the only 

factor that would bind together a quasi-sovereign Native Hawaiian 

government, if formed today, would be race. Race alone does not 

and should not be the basis for creating a sovereign entity. 

It is the antithesis of our form of Government and contrary to 

the principles on which this country was founded. The Supreme 

Court stated in Rice v. Cayetano that ‘‘the law itself may not be an 

instrument for generating the prejudice and hostility, all too often 

directed against persons whose particular ancestry is disclosed by 

their ethnic characteristics and cultural traditions.’’

Justice Scalia stated most appropriately in Adarand Contractors 

Inc. that ‘‘to pursue the concept of racial entitlement, even for the 

most benign purposes, is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege 

and race hatred. In the eyes of the Government, we are just one 

race here. We are American.’’ That was Justice Scalia in that particular opinion that I just referred to. 

It is here in America that all cultures are free to practice their 

traditions, cultures and religions free from Government intrusion. 

It is here in America where injustices that have occurred are remedied to make individuals and groups whole. However, America 

should not be a place where governments are defined by race or ancestry or the color of one’s skin. 

It should not be a place neighbors, who may have lived next to 

each other for decades, are suddenly subject to two different civil 

and criminal standards because of race. It’s with that understanding that we all look forward to exploring the issues before us 

today. And the statement that I just made is obviously not necessarily the statement that every Member of Congress would have 

made with respect to this, and it’s not obviously the views of all 

the witnesses that are with us here this afternoon. 

I would now yield to Mr. Nadler, and then we will yield, of 

course, to Mr. Abercrombie. 

3

Mr. NADLER. Thank you, Mr. Chairman. Let me just say, Mr. 

Chairman, that on this occasion, I must state my regret that this 

is not a field hearing, an on-site field hearing. 

Mr. Chairman, I would like to join you in welcoming our distinguished panel and also in welcoming our distinguished colleagues 

from the State of Hawaii. The record of concern and energetic efforts of all the people of Hawaii is admirable, and I want to commend them for their work on this very complex but important 

issue. 

Obviously, our Subcommittee does not have jurisdiction over this 

legislation, but we do have jurisdiction over the Constitution. Questions of this legislation’s constitutionality have been raised, and I 

hope that we can make some contribution in sorting out these 

issues. 

In that consideration, I believe that the Subcommittee should listen very carefully to the voices of Hawaii’s elected representatives. 

Our colleagues, and the distinguished Attorney General of Hawaii, 

have a great deal to contribute. 

I would also note that the minority, the Democratic Members of 

this Subcommittee, has invited a Republican Attorney General. The 

issues concerning Native Hawaiians are not partisan issues, so we 

should have the advantage hopefully of examining these questions 

in a cooler than perhaps normal atmosphere. 

It is no secret that the treatment of the native people who inhabited the United States before the Europeans arrived has been a disgrace. It is a terrible legacy of the settlement of this hemisphere 

that the people who first inhabited these lands were murdered, 

enslaved, thrown off their land and robbed of their sovereignty. 

There is little we can do today about that shameful past, but we 

can try to achieve justice for those living in the present day. I believe there is really one core issue in this case, and that is whether 

Native Hawaiians are, like the tribes of the mainland, entitled to 

some right to self-determination, apart from their individual rights 

as citizens of the United States. If so, how do we enable them to 

realize these rights of self-determination without violating the 

rights of others. 

Terms like race-based government do not appear to enlighten 

this question very much. Perhaps the testimony will persuade me 

otherwise, but I am dubious of the concept. 

This is a new issue for our Committee, and an important one to 

the people of Hawaii and to the Nation. I thank my colleagues and 

you, Mr. Chairman, for raising these significant issues, and I look 

forward to hearing from our witnesses. I ask also ask unanimous 

consent that the statement by the gentleman from Hawaii be included in the record, and that all Members have 5 legislative days 

to revise and extend their remarks and to include additional materials into the record. 

I thank you, Mr. Chairman. 

Mr. CHABOT. Thank you very much. I would at this time ask 

unanimous consent be given to allow two non-Judiciary Committee 

Members, Mr. Abercrombie and Mr. Case, to serve as a resource to 

this Committee. They won’t be making opening statements or asking questions, but should any of the panel members wish to ask 

4

them questions or refer to them, they would be able, during Members’ up here time, to do that. Without objection, so ordered. 

At this time, I would like to recognize Mr. Abercrombie to make 

a statement—this isn’t an opening statement, but make a brief 

statement here. 

Mr. ABERCROMBIE. Mr. Chairman, on behalf of Mr. Case and myself, let me thank you for the opportunity to be with you and address the issues, as have been stated, are very, very important to 

us, and I think to anyone interested in the Constitution, especially 

as we are coming up on the anniversary in September of the signing of the Constitution. It’s traditional in Hawaii, before we begin 

any deliberations or even when we greet people whom we haven’t 

met before, and would like to accommodate as friends, that you be 

greeted with a lei of welcome and as symbolic of the aloha spirit 

in Hawaii of welcoming. 

With that in mind, Mr. Chairman, with your permission, the 

Chair of the Board of Trustees of the Office of Hawaiian Affairs, 

Haunani Apolonia, and the Representative from Molo’kai, Colette 

Mochado, would like to present you and Mr. Nadler with leis of 

greeting from Hawaii. 

Mr. CHABOT. Without objection, so ordered. 

Mr. ABERCROMBIE. Yes. 

Mr. CHABOT. If Mr. Nadler has no objection, I have no objection. 

Mr. ABERCROMBIE. Mr. Chairman, you are going to receive a kiss 

with this. Hopefully it will be recorded for all to see. I guarantee 

you won’t get in trouble with this one. 

Mr. CHABOT. Thank you. 

Mr. ABERCROMBIE. Mr. Chairman, under the rules of the House 

regarding shameless pandering, Mr. Case and I, on behalf of all of 

our friends here from Hawaii—and I have to note a conflict too. My 

neighbor is here, Judge Robert Klein, came as well, hopefully 

bringing greetings from my wife. And in that regard, Mr. Chairman, Mr. Case and I would like to present you and the staff with 

some chocolate-covered macadamia nuts. 

Mr. NADLER. Mr. Chairman . 

Mr. CHABOT. Yes, Mr. Nadler. 

Mr. NADLER. Can we all agree that the macadamia nuts and the 

leis will not unduly prejudice the consideration of this country? 

Mr. CHABOT. Yes, they are under the gift ban limit, I think, so 

I think we are in good shape. Thank you very much. In light of my 

opening statement, I wasn’t sure if I was going to get these or not. 

But I appreciate that very much. 

Mr. ABERCROMBIE. Mr. Chairman, when you meet someone in 

Hawaii, not only do you get a lei, but then you have to eat. 

Mr. CHABOT. Thank you very much. We appreciate the ceremony 

that you just did very well. I know that other Members of the Committee are feeling somewhat left out at this point, but it was very 

kind of you. Again, we appreciate it very much. 

Without objection, all Members will have 5 legislative days to 

submit additional materials, and they are not to be the macadamia 

nuts, for a hearing record, and without objection, so ordered. 

I will now introduce the members of the panel here. Our first 

witness is the Honorable Mark Bennett, Attorney General for the 

State of Hawaii. Mr. Bennett was appointed Attorney General by 

5

Hawaii Governor Linda Lingle in 2003. Prior to his appointment, 

Mr. Bennett was a litigator for the Honolulu-based law firm of 

McCorriston Miller Mukai MacKinnon L.L.P., where he specialized 

in complex litigation. In 2004, Mr. Bennett was named by the National Association of Attorneys General as Chair of its Antitrust 

Committee succeeding Eliott Spitzer, Attorney General of New 

York. Mr. Bennett has been married to Patricia Tomi Ohara for 20 

years. 

Our second witness will be Mr. Shannen Coffin. Mr. Coffin is 

currently a partner with the law firm of Steptoe & Johnson, where 

he practices law in the areas of constitutional and appellate litigation. He served as counsel of record for amicus curiae Campaign for 

a Color Blind America in the Rice v. Cayetano case, a case that we 

will most certainly discuss later in this hearing. Mr. Coffin stepped 

away from the private practice between the years 2002 and 2004, 

where he served as the Deputy Assistant Attorney General for the 

Federal Programs Branch of the Department of Justice Civil Division. There he oversaw and coordinated trial litigation on behalf of 

the Federal Government for constitutional and other challenges to 

Federal statutes and agency programs. We thank you for being 

here as well as Attorney General Bennett for being here. 

Our third witness is Mr. William Burgess. Mr. Burgess is a retired attorney who is a resident of the State of Hawaii. Mr. Burgess 

has been active in Hawaii’s grassroots efforts to make Hawaii a 

color-blind society and together with his wife, have formed Aloha 

for All, Inc., an advocacy organization. He was a delegate to the 

1978 Hawaiian constitutional convention, the same year that the 

Office of Hawaiian Affairs was established. What I find most interesting about Mr. Burgess’ resume is that he lists as one of his current occupations ‘‘student of Hawaii history.’’ I am sure we will 

learn more about that later in the hearing. 

Our fourth and final witness this afternoon will be Mr. Bruce 

Fein, a renowned constitutional law expert. Mr. Fein previously 

served as the Assistant Director of Office of Legal Policy at the Department of Justice, legal advisor to the Assistant Attorney General for Antitrust and the Associate Deputy Attorney General. He 

was appointed to serve as the general counsel for the Federal Communications Commission and as a research director for the Joint 

Congressional Committee on Covert Arms Sales to Iraq. He is the 

author of numerous articles, papers and treatises in the areas of 

the United States Supreme Court, the U.S. Constitution and international law. 

We thank all of you, again, for being here, and for those of you 

who have not testified before the Committee before, I might note 

that we have a lighting system here. Each of the witnesses will be 

given 5 minutes. It will start green and be that way for 4 minutes. 

It will then change to yellow. That tells you have 1 minute to wrap 

up, and then it will go red, at which time we would hope that you 

would have either completed or wrap up shortly thereafter. I will 

give you a little leeway. We don’t want to cut anybody off, but we 

would ask you to stay within the 5 minutes as much as possible. 

It is the practice of this Committee to swear in all witnesses appearing before it, so if you would, we would ask each of you to 

please stand and raise your right hands. 

6

[Witnesses sworn.] 

Mr. CHABOT. Thank you very much. You can all please be seated. 

We will begin with you, Mr. Bennett. 

TESTIMONY OF THE HONORABLE MARK BENNETT,

ATTORNEY GENERAL, STATE OF HAWAII 

Mr. BENNETT. Mr. Chairman, and Members of the Committee. I 

would like to express my appreciation for you allowing me to testify 

here today on this very important issue. I support the Akaka bill 

because it is just and because it is fair and because it treats Native 

Hawaiians like America’s other indigenous people. 

It has the support in Hawaii, the bipartisan support of virtually 

every elected official. It has the support of Republicans like Governor Linda Lingle and myself. It has the support of 75 out of 76 

members of our State legislature. It has the support of all of our 

mayors, and it does not have that support for political reasons. It 

has that support because we all agree that this is the just thing 

to do. 

The title of this hearing asks essentially two questions: Does S. 

147 create a race-based government? The answer to that question 

is a resounding no. Is H.R. 309/S. 147 constitutional? The answer 

to that question is a resounding yes. 

While it is true that race is a characteristic for determining who 

gets to vote in the determination of forming a Native Hawaiian 

governing entity, for more than 100 years the Supreme Court has 

stated that race is one of the characteristics of determining whether individuals are part of a group or a tribe recognizable under the 

Indian Commerce Clause. So to say that this is a race-based government, is also to say that every recognized Indian tribe is a racebased government as well. 

Indeed, Mr. Chairman, this Congress, since 1910 has passed, and 

we have attached to our testimony as exhibits, more than 160 separate bills that recognize the special status of Native Hawaiians and 

their status akin to Native American Indians. Indeed the State of 

Hawaii’s Admissions Act itself required Hawaii as a condition of 

entering the union to provide special benefits for Native Hawaiians. 

As recently as 2000, in the Hawaiian Homeland Act, this Congress said we are not extending benefits because of race, but because of Hawaii’s people, Native Hawaiian’s status as an indigenous people and the political status of Native Hawaiians is comparable to that of American Indians. Those are the words of this 

Congress repeated over and over again in litigation. 

In Morton v. Mancari the seminal case in this area, the Supreme 

Court said that even though the criteria for determining tribe 

membership may be based on race, it is not racial, it does not violate the 14th amendment, it is political, and it is recognized as 

such in the Constitution. That is why this bill is constitutional. 

I am joined in this view by those who I consider conservative political theorists and legal scholars. We have attached to our testimony the detailed analysis of this bill by Viet Dinh, Professor and 

former high-ranking official in the Department of Justice, whose 

qualifications in this area are unquestionable. 

7

I have discussed this matter with several of my more conservative colleagues, including former Attorney General Bill Pryor, current Texas Attorney General Greg Abbott, both of whom concluded 

beyond question that this bill is constitutional. Professor Dinh recognizes four separate clauses in the Constitution providing that. 

Are Native Hawaiians—would they have been viewed as Indians 

by the Framers of the Constitution? Unquestionably. The Declaration of Independence itself describes Indians as inhabitants of the 

frontier, not just of 13 original colonies, but after-acquired territory. 

Captain Cook, in 1778, when he first visited Hawaii, and his men 

described the aboriginal inhabitants as Indians, the framers would 

have recognized them as such and the Framers would have recognized that Congress’s power under the Indian clause indeed gives 

the Congress the ability to recognize Native Hawaiians. There has 

been no case ever in the history of the United States of which I am 

aware overturning a decision of Congress in this area. 

If there were any question, Mr. Chairman, about this, the Lara

case from 2004 made clear that Congress’s powers in this area are 

plenary, and the Menomonee Restoration Act upheld in that decision bears striking similarity to the act under consideration here. 

Whether the Indian tribes are fully assimilated, whether there is 

no Federal supervision of them, whether or not their government 

has been continuous, are irrelevant to the constitutional issue as 

determined by the Supreme Court. 

Indeed, if the opponents of this bill were correct, the Alaska Natives Claims Settlement Act could not possibly have been constitutionally adopted. Native Alaskans are not Indians, but the criteria 

they share with American Indians is the fact that they are one of 

America’s indigenous people. 

Mr. Chairman, if I could have a short additional time. 

Mr. CHABOT. If you could wrap it up in another minute, we 

would appreciate it. 

Mr. BENNETT. Thank you. Combined with the plenary power of 

Congress, and combined with the injustice done to Native Hawaiians in which the United States participated, the ability of the Congress to recognize that in this bill is, I would submit to you, constitutionally unquestionable. Rice is not in any way contrary. I 

could address that if I received questions. 

Mr. Chairman, Native Hawaiians do not ask for special treatment. Native Hawaiians ask for the type of fairness that we Americans pride ourselves on. They ask not to be treated as second class 

among America’s indigenous people. They ask to be given the same 

rights and privileges so that they can take their place with other 

American indigenous people, and this bill before this Committee 

does that, as I started out by saying, Mr. Chairman, it is not a 

matter of race, it is not unconstitutional, it is a matter of justice 

and fairness, and that is what this bill accomplishes. 

Thank you. 

Mr. CHABOT. Thank you. 

[The prepared statement of Mr. Bennett follows:]

8

PREPARED STATEMENT OF THE HONORABLE MARK J. BENNETT

Good afternoon. Thank you for giving me the opportunity to address the important question presented today. Let me begin by noting, with due respect, that the 

title of this hearing ‘‘Can Congress Create a Race-Based Government?’’ itself reflects 

a fundamental misunderstanding of what the Akaka Bill does, and assumes a conclusion, erroneous I submit, to the very question it purports to ask. 

Simply put, the Akaka Bill does NOT create a race-based government. In fact, the 

fundamental criterion for participation in the Native Hawaiian Governing Entity is 

being a descendant of the native indigenous people of the Hawaiian Islands, a status Congress has itself characterized as being non-racial. For example, Congress has 

expressly stated that in establishing the many existing benefit programs for Native 

Hawaiians it was, and I quote, ′′not extend[ing] services to Native Hawaiians because of their race, but because of their unique status as the indigenous people . . . 

as to whom the United States has established a trust relationship.’’ [Hawaiian Homelands Homeownership Act of 2000, Section 202(13)(B)]. Thus, Congress does not 

view programs for Native Hawaiians as being ‘‘race-based’’ at all. Accordingly, a Native Hawaiian Governing Entity by and for Native Hawaiians would similarly not 

constitute a ‘‘race-based’’ government. 

This is not just clever word play, and the contention that recognizing Native Hawaiians would create a ‘‘racial’’ classification would be flat wrong, and would ignore 

decades of consistent United States Supreme Court precedent. The key difference 

between the category Native Hawaiians and other racial groups, is that Native Hawaiians, like Native Americans and Alaska Natives, are the aboriginal indigenous 

people of their geographic region. All other racial groups in this country are simply 

not native to this country. And because of their native indigenous status, and the 

power granted the Congress under the Indian Commerce Clause, Native Hawaiians, 

like Native Americans and Alaska Natives, have been recognized by Congress as 

having a special political relationship with the United States. 

Moreover, although the initial voting constituency encompasses all those with Native Hawaiian blood, that simply reflects the unsurprising obvious fact that native 

peoples, by definition, share a blood connection to their native ancestors. The Supreme Court, in Morton v. Mancari, upheld a congressional preference for employment of Indians within the Bureau of Indian Affairs, even though not all tribal Indians were given the preference, but only those tribal Indians with one-quarter Indian 

blood. 

Those who contend that the Supreme Court in Rice v. Cayetano found the category consisting of Native Hawaiians to be ‘‘race-based’’ under the Fourteenth 

Amendment and unconstitutional are also simply wrong. The Supreme Court limited its decision to the context of Fifteenth Amendment voting rights, and expressly 

refused to address the applicability of Mancari to Native Hawaiian recognition. Indeed, the Supreme Court in Rice made no distinction whatsoever between American 

Indians and Native Hawaiians. 

Some opponents of the Akaka Bill argue that including all Native Hawaiians, regardless of blood quantum, is unconstitutional, citing the concurring opinion of Justices Breyer and Souter in Rice v. Cayetano. But that opinion did not find constitutional fault with including all Native Hawaiians of any blood quantum provided that 

was the choice of the tribe, and not the state. Because the Akaka Bill gives Native 

Hawaiians the ability to select for themselves the membership criteria for ‘‘citizenship’’ within the Native Hawaiian government, no constitutional problem arises. 

The notion that S.147 creates some sort of unique race-based government at odds 

with our constitutional and congressional heritage contradicts Congress’ longstanding recognition of other native peoples, including American Indians, and Alaska Natives, and the Supreme Court’s virtually complete deference to Congress’ decisions on such matters. 

Hawaiians are not asking for ‘‘special’’ treatment—they’re simply asking to be 

treated the same way all other native indigenous Americans are treated in this 

country. Congress has recognized the great suffering American Indians and Alaska 

Natives have endured upon losing control of their native lands, and has, as a consequence, provided formal recognition to those native peoples. Hawaiians are simply 

asking for similar recognition, as the native indigenous peoples of the Hawaiian Islands who have suffered similar hardships, and who today continue to be at the bottom in most socioeconomic statistics. 

The Constitution gives Congress broad latitude to recognize native groups, and 

the Supreme Court has declared that it is for Congress, and not the courts, to decide 

which native peoples will be recognized, and to what extent. The only limitation is 

that Congress may not act ‘‘arbitrarily’’ in recognizing an Indian tribe. Because Native Hawaiians, like other Native Americans and Alaska Natives, are the indigenous 

9

aboriginal people of land ultimately subsumed within the expanding U.S. frontier, 

and not just a racial minority that descends from foreign immigrants, it cannot be 

arbitrary to provide recognition to Native Hawaiians. Indeed, because Native Hawaiians are not only indigenous, but also share with other Native Americans a similar history of tragic dispossession, cultural disruption, and loss of full self-determination, it would be ‘‘arbitrary’’ to not recognize Native Hawaiians. 

The Supreme Court long ago stated that ‘‘Congress possesses the broad power of 

legislating for the protection of the Indians wherever they may be,’’ [U.S. v. 

McGowan] ‘‘whether within its original territory or territory subsequently acquired.’’

[U.S. v. Sandoval] 

To those who say that Native Hawaiians do not fall within Congress’s power to 

deal specially with ‘‘Indian Tribes,’’ because Native Hawaiians simply are not ‘‘Indian Tribes,’’ I say they are simply wrong. For the term ‘‘Indian,’’ at the time of the 

framing of the Constitution, simply referred to the aboriginal ‘‘inhabitants of our 

Frontiers.’’ And the term ‘‘tribe’’ at that time simply meant ‘‘a distinct body of people 

as divided by family or fortune, or any other characteristic.’’ Native Hawaiians easily fit within both definitions. 

Furthermore, Congress has already recognized Native Hawaiians to a large degree, by not only repeatedly singling out Native Hawaiians for special treatment, 

either uniquely, or in concert with other Native Americans, but by acknowledging 

on many occasions a ‘‘special relationship’’ with, and trust obligation to, Native Hawaiians. In fact, Congress has already expressly stated that ‘‘the political status of 

Native Hawaiians is comparable to that of American Indians.’’ [e.g., Haw’n Homelands Homeownership Act of 2000]. The Akaka Bill simply takes this recognition 

one step further, by providing Native 

Hawaiians with the means to re-organize a formal self-governing entity for Congress to recognize, something Native Americans and Native Alaskans have had for 

decades. 

Some opponents of the bill have noted that Hawaiians no longer have an existing 

governmental structure to engage in a formal government-to-government relationship with the United States. That objection is not only misguided but self-contradictory. It is misguided because Native Hawaiians do not have a self-governing structure today only because the United States participated in the elimination of that 

governing entity, by facilitating the overthrow of the Hawaiian Kingdom, and later 

annexing the Hawaiian Islands. Unlike other Native Americans who were allowed 

to retain some measure of sovereignty, Congress did not leave Native Hawaiians 

with any sovereignty whatsoever. It cannot be that the United States’s complete destruction of Hawaiian self-governance would be the reason Congress would be precluded from ameliorating the consequences of its own actions by trying to restore 

some small measure of sovereignty to the Native Hawaiian people. 

The objection is self-contradictory because one of the very purposes and objects 

of the Akaka Bill is to allow Native Hawaiians to re-form the governmental structure they earlier lost. Thus, once the bill is passed, and the Native Hawaiian Governing Entity formed, the United States would be able to have a government-to-government relationship with that entity. 

Finally, some opponents of the bill contend that because the government of the 

Kingdom of Hawaii was itself not racially exclusive, that it would be inappropriate 

to recognize a governing entity limited to Native Hawaiians. This objection is absurd. The fact that Native Hawaiians, over one hundred years ago, were enlightened 

enough to maintain a government that was open to participation by non-Hawaiians, 

should not deprive Native Hawaiians today of the recognition they deserve. Indeed, 

it is quite ironic that those who oppose the Akaka Bill because it purportedly violates our nation’s commitment to equal justice and racial harmony would use Native 

Hawaiians’ historical inclusiveness, and willingness to allow non-Hawaiians to participate in their government, as a reason to deny Native Hawaiians the recognition 

other native groups receive. 

The same irony underlies the objection that because Native Hawaiians are not a 

fully segregated group within the Hawaiian Islands and instead are often integrated 

within Hawaii society at large, and sometimes marry outside their race, they cannot 

be given the same recognition that Native American and Alaska Natives receive. 

Anyone concerned about promoting racial equality and harmony should be rewarding Native Hawaiians for such inclusive behavior, or as we say in Hawaii, ‘‘aloha’’

for their fellow people of all races, rather than using it against them. In any event, 

American Indians, too, have intermarried—at rates as high as 50% or more—and 

often venture beyond reservation borders, and yet those facts do not prevent them 

or their descendants from federal recognition. 

10

In short, there is simply no legal distinction between Native Hawaiians and 

American Indians or Alaska Natives, that would justify denying Native Hawaiians 

the same treatment other Native American groups in this country currently enjoy. 

The Akaka Bill, under any reasonable reading of the Constitution and decisions 

of the Supreme Court, is constitutional, just as is the Alaska Native Claims Settlement Act for Alaska Natives, and the Indian Reorganization Act for American Indian tribes—both of which assured their respective native peoples some degree of 

self-governance. The Supreme Court, as noted before, has made clear that Congress’ power to recognize native peoples is virtually unreviewable. 

And so I emphasize and repeat, that Hawaiians are not asking for ‘‘special’’ treatment—they’re simply asking to be treated the same way all other native indigenous 

Americans are treated in this country. Congress long ago afforded American Indians 

and Alaska Natives formal recognition. The Akaka Bill would simply provide Native 

Hawaiians comparable recognition, as the indigenous peoples of the Hawaiian Islands. Formal recognition will help preserve the language, identity, and culture of 

Native Hawaiians, just as it has for American Indians throughout the past century, 

and Alaska Natives for decades. 

The Akaka Bill does not permit total independence; it will not subject the United 

States or Hawaii to greater potential legal liability; and it does not allow gambling. 

Nor would passage of the bill reduce funding for other native groups, who, by the 

way, overwhelmingly support the bill. Instead, the Akaka Bill will finally give official and long overdue recognition to Native Hawaiians’ inherent right of self-determination, and help them overcome, as the United States Supreme Court in Rice put 

it, their loss of a ‘‘culture and way of life.’’ The Akaka Bill would yield equality for 

all of this great country’s native peoples, and in the process ensure justice for all.

Mr. CHABOT. Mr. Coffin, you are recognized for 5 minutes. 

TESTIMONY OF SHANNEN COFFIN, PARTNER,

STEPTOE & JOHNSON, L.L.P. 

Mr. COFFIN. Mr. Chairman, and Members of the Subcommittee. 

Mr. CHABOT. If you could turn that mike on, just hit the button 

there. 

Mr. COFFIN. There we go. Mr. Chairman and Members of the 

Subcommittee. I would also like to thank the Subcommittee for the 

opportunity to discuss the constitutionality of H.R. 309. I am disheartened, however, that today’s hearing is necessary. However 

noble its purpose, and however good the people it addresses—and 

I have no doubt of that—Congress’s consideration of this legislation 

not only has the potential to be extraordinarily divisive, it also 

raises serious constitutional questions. The Supreme Court has observed that distinction between citizens based solely on ancestry 

are, by their very nature, odious. 

Under the Supreme Court’s equal protection jurisprudence, legislation that defines citizens on the basis of race is subject to strict 

judicial scrutiny and will be invalidated unless the classification is 

necessary and narrowly tailored to achieve a compelling State interest. This exacting standard applies whether the racial classification favors or disfavors a particular racial minority. 

There is no doubt that H.R. 309 uses suspect racial classifications. It establishes, under the guise of Federal law, a racially-separate government that will exercise broad sovereign powers, the 

eligibility for which is limited to Native Hawaiians as defined by 

ancestry. 

This isn’t the first time, Mr. Chairman, that we have been down 

this road. As you mentioned, in Rice v. Cayetano the Supreme 

Court invalidated similar State legislation that limited the eligibility to vote in elections for a statewide office to lineal descendents 

of those inhabitants of the Islands at the time of Captain Cook’s 

arrival in 1778. The Court flatly rejected the argument that such 

11

a definition was not a racial classification, reasoning that ancestry 

can be a proxy for race and, in that case, as in this case, it was. 

The very object of the statutory definition in question in Rice was 

to treat early Hawaiians as a distinct people commanding their 

own recognition and respect. ‘‘This ancestral inquiry,’’ the court 

concluded, ‘‘implicates the same grave concerns as a classification 

specifying a race by name. One of the principal reasons it is treated 

as a forbidden classification is that it demeans the dignity and 

worth of a person to be judged by ancestry instead of his own merits and essential qualities.’’ Under this standard the race-based legislation proposed in H.R. 309 is presumptively invalid, and it is not 

saved by the artifice that it creates, treating the Native Hawaiian 

people as an Indian tribe. 

H.R. 309’s preamble finds that the Constitution vests Congress 

with the authority to the address the conditions of the indigenous 

native people of the United States. But the Constitution says nothing about the condition of ‘‘indigenous native people.’’ Instead, Congress is authorized by the Constitution to regulate conduct with Indian tribes. But for a number of reasons, Native Hawaiians do not 

as a group fall within the constitutional meaning of this term. 

It bears emphasis that in Rice v. Cayetano, the Hawaiian government itself in its brief in opposition to the petition for a writ of certiorari to the Supreme Court, argued that ‘‘the tribal concept simply has no place in the concept of Hawaiian history.’’ That was a 

statement by Governor Cayetano himself. The reasons for this admission are plenty but to summarize a few—Native Hawaiians are 

not geographically or culturally separated in Hawaii. 

Indeed the historians will tell you—and I am not one—but there 

is a long and diverse history of intermarriage between ethnicities 

that exercise any kind of organizational or political power. There 

are no tribes, no chieftains, no agreed-upon leaders, no political organizations and no monarchs in waiting. At the time referenced in 

the bill, 1893, there was no similar race-based Hawaiian government. The Queen’s subjects were often naturalized citizens coming 

from all over the globe. 

Congress cannot change this conclusion by arbitrarily recognizing 

Native Hawaiians as an Indian tribe, as Mr. Chabot recognized 

from the Sandoval case. Even Justice Breyer, in his separate concurring opinion in Rice, noted, ‘‘there must be some limit on what 

is reasonable, at least when a State which it is not itself a tribe, 

creates the definition of tribal membership.’’

The passage of this bill would set the Nation down a dangerous 

slippery slope and effectively allow Congress to create new racebased government entities outside of our constitutional structure—

to be used by groups in Texas and California and Louisiana, all racially-distinct groups with an individual history, to acquire special 

governmental privileges. 

While none of these groups may currently possess the political 

clout to accomplish this objective, who is to say that their political 

persistence over time would not result in similar separatist governmental proposals? 

Mr. Chairman, if I may make one more observation, before I 

close, it’s ironic to me that the triggering date of this legislation is 

January 1, 1893, Mr. Chairman. At that very time, only a day 

12

later, the Louisiana Supreme Court denied rehearing of a petition 

for relief by a Creole activist named Homer Plessy only one day 

later, who had the audacity to sit in an all-whites car in a Louisiana rail coach, when he was, in fact, one-eighth black. A few 

years later, however, the Supreme Court of the United States 

upheld his criminal conviction concluding that separate-but-equal 

was our constitutional standard. 

H.R. 309 would take us back to those days when race was an appropriate basis to deny a class of people the liberties secured by the 

Constitution. As Justice Harlan said in his dissent, we are and we 

should be a color blind society. I urge Congress not to pass H.R. 

309. 

Mr. CHABOT. Thank you. 

[The prepared statement of Mr. Coffin follows:]

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PREPARED STATEMENT OF SHANNEN W. COFFIN


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Mr. CHABOT. Mr. Burgess, you are recognized for 5 minutes. 

TESTIMONY OF H. WILLIAM BURGESS, FOUNDER,

ALOHA FOR ALL 

Mr. BURGESS. Aloha and good afternoon. Thank you for allowing 

me to testify. Thank you for asking the big question first, can Congress create a race-based government? For the many people in Hawaii who are gravely concerned about the Akaka bill, it is critically 

important to address the question of constitutionality first. If Congress doesn’t, and the bill is enacted, that in itself will have a destabilizing effect in the State of Hawaii. It will validate the radical 

minority separatists, the red shirts marching in the streets, the 

protestors demanding that the U.S. pack up and leave Hawaii. 

By the time the courts go through their process, appeals and 

trials and further appeals, 5 or more years will have passed. It may 

be impossible by that time to put the Aloha State back together 

again. 

Now how do the bill’s proponents address the question of constitutionality? They are in denial. They deny that the Constitution 

applies because Native Hawaiians are indigenous people. That’s 

the same argument that they made unsuccessfully in Rice v. 

Cayetano. That’s the same argument that was made 25 years ago 

when a State senator asked the Attorney General of Hawaii for an 

opinion whether this restricted voting in the OHA elections was 

constitutional, and the attorney general at that time cited Morton 

v. Mancari as an authority for the proposition that indigenous people can be treated separately. 

But Rice v. Cayetano put that to rest. It said that Morton v. 

Mancari applies only to Federally-recognized tribes, and it doesn’t 

apply to State agencies. 

Now, nevertheless, the Attorney General of the State of Hawaii 

made that argument again in Arakaki v. State. That was the first 

suit to invalidate—following the Rice decision—to invalidate the requirement that State—that in the State law, as saying that the 

trustees, even though everyone could vote, the trustees had to be 

Native Hawaiian. And the district court rejected that, rejected the 

Mancari argument. They have been wrong every time they made 

their argument, and they are wrong now. Here is how their argument goes, as I understand it: All we want for Native Hawaiians 

is parity. American Indians and Alaska natives get all these benefits, it’s just not fair for Native Hawaiians not to get them too. 

But the Akaka bill would not give Native Hawaiians just parity, 

it would give them supremacy. It would bestow upon Native Hawaiians, merely by virtue of their ancestry, power to create their 

own separate sovereign government. 

Millions of people in the United States have some Native American ancestry. According to census 2000, 2.1 million people on their 

census forms said they were part American Indian. Some anthropologists estimate that as much as 15 million people in the United 

States have some discernible amount of Native American blood. 

But only those Native Americans who are members of Federallyrecognized Indian tribes have the power or have the right of continuing a preexisting tribal government. No Native American has 

the power, merely by virtue of ancestry, to create a government. If 

24

Native Hawaiians were given parity with native Americans, then 

the U.S. Indian laws would apply to them. 

Under the mandatory criteria for recognition of tribes, Native 

Hawaiians wouldn’t qualify, because they have no government to 

be recognized. Congress can only recognize existing sovereigns. It 

can’t create new ones. There is no such power in the Constitution. 

Oh, I see my time is up, Mr. Chairman, may I wrap up briefly 

in one more minute? 

Mr. CHABOT. Yes, if you would wrap it up, thank you. 

Mr. BURGESS. To summarize, the arguments for the Akaka bill 

are the arguments for the same old make-believe tribe and pastedon victimhood, dressed up in nice language, but with no shred of 

better logic or law than they had 5 years ago or 25 years ago. The 

U.S. can’t give rights to groups of people merely because they share 

an ancestry. If there was no tribal government continuing to the 

present day, there is no basis for special treatment. Congress can 

write laws, but it can’t change history. The fact that Congress 

passed 160 unconstitutional laws doesn’t make any one of them legitimate. 

Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mr. Burgess follows:]

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PREPARED STATEMENT OF H. WILLIAM BURGESS


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Mr. CHABOT. Mr. Fein, you are recognized for 5 minutes. 

TESTIMONY OF BRUCE FEIN, PRESIDENT,

THE LICHFIELD GROUP 

Mr. FEIN. Thank you, Mr. Chairman, and Members of the Subcommittee. I am grateful for the opportunity to present my views 

on the constitutionality of H.R. 309. It is somewhat alarming that 

the Senate has taken this particular bill as the companion of H.R. 

309 to the floor almost without considering the nature of constitutionality. 

So the Congress is a legislative body of limited powers under the 

Constitution. In order to act, you must find affirmative authority 

in article 1, which identifies the enumerated powers of Congress. 

The only reference in article 1 that could plausibly apply to Native 

Hawaiians is article 1, section 8, clause 3, which empowers Congress to regulate commerce with Indian tribes. 

Now, to regulate commerce is not to create a governing entity of 

any race or otherwise. Justice Samuel Miller in the Kagama case 

made that quite clear. The reference to Indian tribes in that provision of the Constitution is recognition of a preexisting sovereign 

power exercised by those who had a common ancestry. They occupied a distinct territory. They exercised government power through 

leadership or otherwise over their particular members. 

There is nothing else in article 1 that would plausibly—other 

than this particular Indian commerce clause—enable Congress to 

create the race-based government, the Native Hawaiian entity that 

is contemplated by H.R. 309. 

The other provision that is occasionally invoked is the treaty 

power. Treaties were, indeed, consummated between the United 

States and Indian tribes, both prior to the constitutional ratification in 1789 and for perhaps 100 years thereafter. 

But treaties also were negotiated between the United States and 

the Kingdom of Hawaii after its formation in 1810, and the language is quite distinct. When you view the description of the ratifying parties in both cases, the United States invariably, in its treaties with the Indian tribes, identifies the tribes by name, with an 

understanding of what particular leadership existed and an authority to bind the members of the tribe. 

If you compare the treaties with the Kingdom of Hawaii, they are 

really carbon copies of the same kind of treaties that were negotiated with Britain and France, the same language and the same 

understanding that the United States was not dealing with a tribe 

but with a foreign nation. A foreign nation is distinct from a Indian 

tribe in article 1 section 8, clause 3. 

Indeed, that understanding can be fortified by Senator Daniel 

Inouye. Which he said earlier this year because the Native Hawaiian government is not an Indian tribe, a body of Federal Indian law 

that would otherwise customarily apply when the United States extends material recognition to an Indian group does not apply. He, 

himself, I think, would be a very strong witness against the idea 

that Native Hawaiians at all are like Indian tribes. 

But again, I go beyond that and say there is no plausible affirmative power in Congress to create a race-based government where 

none existed before. There is a suggestion that there aren’t racial 

32

classifications in this particular bill. But I think the clearest example of that error is the requirement that the Secretary of Interior 

appoint 9 Native Hawaiians in order to set the creation of the Native Hawaiian entity in motion. 

There is nothing at all that would require those particular nine 

Commissioners to be Native Hawaiians opposed to white or yellow 

or red or otherwise. They can all read the law and implement the 

particular prescriptions for setting up the Native Hawaiian government. Yet there is a race-based criterion here. I think that discredits the idea that racial distinctiveness is not the underlying 

purpose and motivation of the statute. 

There has also been a suggestion that because there are so many 

laws passed that recognize the distinction of Native Hawaiians that 

somehow they have sort of grandfathered this in is constitutional, 

but I point out it leaves at least three major cases of the United 

States Supreme Court, which upended practices which were more 

than 200 years old. 

In Elrod v. Burns, for example, the Court held unconstitutional 

patronage for Government employment that had been in practice 

for more than 2000 years. In Bowling v. Sharpe, the Supreme 

Court overturned a Congressional decision made as early as 1866 

to require segregated schools in the District of Columbia. In INS 

v. Chata, the Supreme Court overturned hundreds of legislative vetoes that had commenced in 1930, in 1982, holding that every one 

of them violated the Presentment Clause. 

So, there isn’t any reluctance of the Supreme Court to find that 

longevity is not the equivalent of constitutionality. Also, with regard to the insinuation that if there were injustices committed 

against Native Hawaiians at sometime in the 1893 overthrow or 

otherwise, this particular Akaka bill is the only way to remedy 

those. That is absolutely false. When it was found by this Congress 

that there were injustices to the Japanese Americans during World 

War II, there is the Civil Liberties Act of 1988 that provided reparations of $20,000 to those who are detained or their families. And 

that didn’t require creating a race-based Japanese government. 

With regard to the Indians, there is the Indian Claims Commission that was established and operated for many, many years, amid 

claims of moral or equitable entitlement against the United States 

use. So there are hundreds of alternate ways other than creating 

a race-based sovereignty in which these historical grievances can 

be assessed. 

I am not suggesting that all of the claims are valid. Some may 

be, maybe some are not. But there is no requirement that they undertake a race-based government in order to overcome historical 

grievances. 

Mr. CHABOT. Your time has expired, Mr. Fein, if you could wrap 

up. 

Mr. FEIN. Yes, the last thing I would say is that the one thing 

that has distinguished the strengths of the United States has been 

commitment to equal opportunity and equal dignity irrespective of 

race or ancestry. I think that came home right after 9/11. We all 

stood up. We all felt the thrill of being Americans. We would not 

be intimidated. Because we had our courage, our patriotism awakened by these high and noble ideals. The Akaka bill, in my judgVerDate 0ct 09 2002 15:09 Aug 24, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 G:\WORK\CONST\071905A\22495.000 HJUD1 PsN: 22495
33

ment, besmirches those ideals. It would weaken the country and it 

must be defeated. Thank you. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mr. Fein follows:]

34

PREPARED STATEMENT OF BRUCE FEIN


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Mr. CHABOT. The Members of the panel here will now have 5 

minutes each to ask questions. 

I would begin by asking unanimous consent to enter three letters 

into the record. The first is a July 13 letter from the Department 

of Justice to Senator McCain. Second is a letter dated July 19 from 

Senator Kyl to this Subcommittee and the third is a letter from a 

Hawaiian citizen by the name of David Rosen. 

Without objection, they will be entered into the record. 

If any other Members want to enter such letters or things, of 

course as always, we would permit that to occur. I now recognize 

myself. I would direct this question to each of the panel members. 

Some of article 1, section 8 has been referred to, I think, by all 

of the Members. The Indian commerce clause states that ‘‘Congress 

shall have the power to regulate commerce with the Indian tribes.’’ Now, H.R. 309 and its proponents suggests that the Indian commerce clause confers to Congress the power to regulate all aboriginal, indigenous people. What authority does article 1, section 8 give 

to Congress, and what is your best shot at what is the difference 

between what Congress has done with respect to Native Americans 

and to Alaskans versus what is being asked for in this particular 

legislation? 

We will start with you, Mr. Bennett. We will just go down the 

line. 

Mr. BENNETT. Thank you. I think that the constitutional issue is 

whether the Congress’ action, in recognizing an indigenous American group, is arbitrary. There has been no case that I know of in 

the history of the republic where the courts have said that the Congress has overstepped its authority. 

I believe the Indian Commerce Clause, as interpreted as recently 

as Lara and back in Morton v. Mancari has said, that recognition 

to aboriginal groups in the United States is political. It is not racial, that Congress’ power in this regard is plenary and exclusive. 

And the fact that Hawaii was an after-acquired part of the lands 

of the United States, as opposed to part of the 13 original colonies, 

is entirely irrelevant to the constitutional analysis. 

So, in short, I believe that Congress’s power is plenary. I believe 

that the Supreme Court has said over and over again that 

Congress’s power is plenary. I believe that Congress has the right 

to say that Native Hawaiians are so akin to Indian tribes and are 

unquestionably aboriginal inhabitants of part of the United States, 

part of the aboriginal requirements, that it is a political decision 

for the political branches to determine whether or not to afford recognition and that such recognition would clearly be upheld. 

Mr. CHABOT. Thank you. Mr. Coffin. 

Mr. COFFIN. Mr. Chairman, I disagree that this is a plenary 

power of Congress. There is a defined term in the Constitution. 

Well, there is a specific term in the Constitution, that is Indian 

tribes. 

The Supreme Court, as early as 1900 in Montoya v. United 

States, described an Indian tribe as a body of Indians having the 

same or similar race, united community under one leadership and 

inhabiting particular, although perhaps ill-defined territory. So 

there are components to the definition that certainly aren’t met 

here when you are defining solely based on race. 

48

Mr. CHABOT. Thank you. Mr. Burgess. 

Mr. BURGESS. Mr. Chairman, my impression is——

Mr. CHABOT. I think your mike is not on. 

Mr. BURGESS. Oh, I’m sorry. Thank you. This bill is radically 

broader than the treatment of Native Americans in the United 

States. As I said originally, that Native Americans, to be recognized for special treatment, have to be members of Federally-recognized tribes. There are millions that don’t have that qualification, 

simply because they are not members of recognized tribes. They are 

subject to the Constitution just like everyone else. 

But this—think of the precedent that this would set, if the principle is adopted—which Mr. Bennett and other proponents of the 

bill offer—just think of what it says. Anyone who is a descendant 

of anyone who is indigenous to the United States, to the land that 

later became part of the United States, has the right to form their 

own new separate government. 

Imagine how about how the people in the southwestern part of 

the United States who are seeking to liberate Colorado, Arizona, 

parts of California, if those indigenous people simply, because of 

their ancestry, have the right to create their own separate government. What is going to happen to the southwestern part? 

Mr. CHABOT. Indeed before I run out of time, I would like to let 

Mr. Fein answer, thank you. 

Mr. FEIN. It is always easier to start with the actual language, 

the Constitution, rather than resorting to conundrums and emanations. The language is Congress has authority to regulate commerce with Indian tribes. That doesn’t come close to suggesting 

that Congress has the power to create a tribe or an entity that 

didn’t exist before. You can quote from the Department of Interior 

itself, its chief attorney in a famous case, Kearny v. Babbitt, saying 

‘‘when the Department of Interior recognizes a tribe, it is not saying you are now a tribe, we are saying that we recognize that your 

sovereignty exists.’’

We don’t create tribes out of thin air. That’s exactly what this 

bill would do. It would create a tribe, a Native Hawaiian entity 

that doesn’t exist now. It never existed during the Hawaiian kingdom. Indeed, it represented, perhaps, the best example of a fusion 

of Native Hawaiian or non-Native Hawaiian influences. 

If you would just indulge me, let me read this quote from a historical expert on the Kingdom of Hawaii, R.S. Kuykendall, ‘‘we can 

see that the policy being followed in the Kingdom looked to the creation of an Hawaiian State by the fusion of native and foreign 

ideas and the union of native or foreign personnel bringing into 

being a Hawaiian body politic in which all elements, both Hawaiian and haole should work together for the common good under the 

mild and enlightened rule of a Hawaiian king.’’ That, Mr. Chairman, is not a description of an Indian tribe. 

The CHAIRMAN. Thank you very much. I might note to other 

Members, our clock is on the blink here, it looks like the yellow 

light isn’t working. So bear with us here. Mr. Nadler is recognized 

for 5 minutes. 

Mr. NADLER. Thank you, I was intrigued by what Mr. Fein said. 

So the fact that the tribe of Hawaiians gave political rights under 

49

the Kingdom to other people means they could no longer be considered as a tribe, is that what you are saying? 

Mr. FEIN. No, that is not accurate. 

Mr. NADLER. Let me ask Mr. Bennett to comment on the comments of the constitutional speakers. We have heard over the last 

few minutes. Why do you think they are wrong? 

Mr. BENNETT. Well, why I think they are wrong because the 

words of the Indian Commerce Clause have to be taken with the 

gloss that the Supreme Court has used in interpreting them for 

well over 100 years. Indeed, in the Lara case, the Supreme Court 

said specifically that Congress’s power in their area is plenary and 

exclusive. So it is——

Mr. NADLER. That means that Congress can create a tribe? 

Mr. BENNETT. It means that Congress can recognize an indigenous people as a tribe even though their form of government in the 

past was different. Even though they have ceased to have a government, that was exactly the issue in Lara itself. Congress had 

derecognized the Menomonee tribe. It had terminated their tribal 

existence, and then some years later Congress through the 

Menomonee Restoration Act, Congress resurrected the Menomonee 

tribe and the argument was Congress can’t resurrect what no 

longer exists. And the Supreme Court said, no that is just simply 

wrong. It is up to the political branches to make these kinds of decisions. 

I believe that it is impossible to read Lara without concluding 

that in this case, with the historic distinct culture, religion and 

government of the Hawaiian people, that at one time existed and 

that was terminated by force with the assistance of the United 

States, I think it is just clear that our Congress can exercise its 

plenary power to right that injustice and to recognize Native Hawaiians. 

Mr. NADLER. So you would say that if the people of Hawaii, native peoples of Congress were recognized as a quote, unquote, Hawaiian tribe, then the fact of the annexation to the conquest of Hawaii, when they had native government under Queen Liliuokalani, 

that they gave citizenship rights to other peoples was the choice of 

that that tribe and doesn’t detract from the possibility of recognizing it as such? 

Mr. BENNETT. Absolutely. The fact that when the Hawaiians had 

a government, the fact that they accorded rights to individuals who 

weren’t Hawaiians, certainly the Supreme Court would say it 

would be absurd to hold that argument against them. In fact, one 

of the arguments made by the opponents of the bill is that because 

the government was completely destroyed and didn’t exist anymore, that prevents Congressional recognition. And that is equally 

absurd to say that if the destruction had only been partial, and 

hadn’t been complete, then the government could be recognized 

today. It makes no legal sense. It certainly makes no textual sense. 

It makes no sense for a country that prides itself on its justice and 

fairness. 

Mr. NADLER. Now, Mr. Bennett, now, Mr. Attorney General, is 

it your reading then that by Indian tribe, the Constitution means 

any indigenous group of people that Congress chooses to recognize? 

50

Mr. BENNETT. I think that it absolutely requires certain characteristics, including being the original aboriginal inhabitants of particular territory, and the straw men that are being set up with the 

southwest. 

Mr. NADLER. Are not the original aboriginal inhabitants? 

Mr. BENNETT. Exactly. 

Mr. NADLER. So, we could recognize, if we wanted to, the Aztecs 

in California, if there were any, but not the Mexicans? 

Mr. BENNETT. Absolutely. That’s absolutely right. 

Mr. NADLER. It is your contention that it is the plenary power 

of Congress to recognize the Hawaiian people as an indigenous people or to recognize six different groups of Hawaiian people as six 

different Hawaiian tribes, it is up to Congress? 

Mr. BENNETT. It is, but I don’t think anyone has ever proffered——

Mr. NADLER. So I am trying to say how the Congress are. We can 

define it any way we want as long as they are the aboriginal people. 

Mr. BENNETT. As long as they are the aboriginal people and as 

long as it is not arbitrary. 

Mr. NADLER. You might say six would be arbitrary. 

Mr. BENNETT. I would say historically it might be, yes. 

Mr. NADLER. Thank you very much. I yield back. 

Mr. CHABOT. Thank you. The gentleman from Iowa, Mr. King, is 

recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman, I do appreciate this testimony and the distance that some of you had to travel to be here 

today. I do think this is the appropriate place to discuss this issue 

before the Constitution Subcommittee. I ask you all to consider our 

Constitution, consider some of the constraints that were bound by 

here in this Congress. 

We swear an oath to uphold the Constitution of the United 

States. It doesn’t always adhere to the letter of this Constitution. 

It should be. I appreciate the points made by Mr. Fein with regard 

to our Constitution. 

As I look back on this testimony and try to sort out here the relevant points, and there are a lot of different points that have been 

brought between all of the different witnesses here, it strikes me 

that as I listen to the testimony of Mr. Bennett, and I had some 

notes here that says race is one of the characteristics of a tribe. 

And, let me see, the question of—is this determination of a Native 

Hawaiian race-based, the answer was a resounding no, which I 

heard very clearly, Mr. Bennett. 

So I turned to the bill, and I look under definition of Native Hawaiians, and it says an individual who is one of the indigenous native people of Hawaii and who is a direct lineal descendent of the 

aboriginal indigenous native people. Now, if you are going to measure the inclusion in a native aboriginal people by their 

descendency, how do you argue that this is not a race-based type 

of determination on Hawaiian citizenship or Hawaii and native aboriginal membership? 

Mr. BENNETT. I would argue in the words of the Supreme Court 

of the United States the issue in Morton v. Mancari was a benefit 

that was provided to certain Indians who were only one quarter 

51

blood or more. And the challenge made in Morton v. Mancari is the 

criteria here is race, this is clearly violative of the 14th amendment. And what the Supreme Court said is absolutely not. Although you are looking at blood quantum, the power of Congress 

to recognize aboriginal people or Indian tribes, the power of Congress to make these divisions is a political determination of Congress, not racial. 

Mr. KING. Thank you, Mr. Bennett, and I appreciate that. That 

is a clarification that I really needed. So if it is not race and it not 

ancestry, would you concede that Congress has the authority that 

if the bill is going to pass, to declare everyone who has a residence 

or citizenship of Hawaii to be a member of native aboriginal people? 

Mr. BENNETT. No, because quite clearly myself, having been born 

in Brooklyn, was not a resident——

Mr. KING. So if it is not race, what is the distinction if it is a 

Hawaiian Native born there? 

Mr. BENNETT. Sir, I can’t help to repeat myself, which is to say 

the Supreme Court, going back to the Montoya case, which my colleague on my left quoted, said that one of the determinants of 

whether there is a recognizable tribe is indeed race, but the Supreme Court has also said, in case after case, that the fact that this 

is one of the components does not make the preferences or the creation race-based. 

It makes it a political determination by Congress and Morton—— Mr. KING. But yet, Mr. Bennett, I have not heard anyone draw 

a distinction on how you determine a Native Hawaiian without 

going back to determine race or ethnicity as the component as a 

distinction if being born in Hawaii, being a Hawaiian of multigenerational Hawaiian does not qualify, then it seems to me that 

your only criteria left are to do with race and ethnicity. 

So I would ask you, then, if that is the case and if your testimony 

is accurate with regard to no, it is not race based, would you support an amendment that would say nothing in this act shall be construed to authorize or permit the exercise of governmental powers 

by any entity that is defined by its members under race or ancestry? 

Mr. BENNETT. No. I think that that would clearly contravene the 

body of law that is built up under the Indian Commerce Clause. 

Native Hawaiians have more than simply common racial characteristics. They are united in community. They, at one time, were 

under one government. They were inhabiting a particular territory, 

however ill-defined, the very criteria that the court in Montoya

looked at in 1901, and the fact again that one of the components 

is race or ancestry—— Mr. KING. Then the only other component that you have mentioned in that is inhabiting a similar community which also works 

for every other ethnicity and they are also everywhere in America. 

I turn to Mr. Fein to respond to this. 

Mr. FEIN. I think Mr. Bennett is simply wrong in suggesting that 

from the beginning of the Kingdom in 1810 thereafter to the ouster 

of Queen Liliuokalani, that there ever was a particular community 

or reservation or land set aside for Native Hawaiians. The fact is 

that there wasn’t a government for Native Hawaiians. The leaderVerDate 0ct 09 2002 15:09 Aug 24, 2005 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 G:\WORK\CONST\071905A\22495.000 HJUD1 PsN: 22495
52

ship was always a leadership of everyone who was on Hawaii, native and non-native alike. 

It was similar to the government of the Louisiana Purchase after 

1807 when the Government established by the United States applied equally to indigenous Creoles or anyone else. There wasn’t 

any separateness. 

The only thing that the Native Hawaiians had in common with 

American Indians is that they are both relying upon ancestry. 

Other than that, all the other distinctive features that the Supreme 

Court has enumerated to justify recognizing an Indian tribe are absent with regard to Native Hawaiians. 

The other thing I would like to underscore is that the Indian 

tribes and their position is an enormous exception to the general 

thrust and basic background of our Constitution. All the values, the 

liberties and the rights are based upon the fundamental idea of individual rights and equality, irrespective of race, ethnicity, religion 

or otherwise. 

That is the background against which we are operating today in 

which we were operating in 1776. The Indian tribes were recognized as a preexisting situation, a fete accompli that they were 

dealing with at the time, recognizing that at war then clashed with 

the basic values of the Constitution, and therefore the Supreme 

Court would view with the highest kind of scrutiny and skepticism 

any deviation from that basic fundamental libertarian background 

in recognizing any power of Congress to create an entity that could 

violate the Constitution rather than enjoy the same rights and liberties of everyone else. 

Mr. CHABOT. Gentleman’s time has expired. Gentleman from Virginia, Mr. Scott is recognized for 5 minutes. 

Mr. SCOTT. Mr. Chairman, you described an unusual process that 

I think I will take advantage of because you said we could take advantage of the resource of our friends from Hawaii. And I would 

ask the gentleman from Hawaii, Mr. Abercrombie, if you had a 

question to ask, what would that question be? 

Mr. ABERCROMBIE. Thank you very much. Perhaps, Mr. Chairman, we could help enlighten the process a little bit because so far 

we have had an excellent discussion in terms of some of the more 

abstract and philosophical points associated with the Constitution. 

But as we all know, the Constitution—the implementation of the 

Constitution takes place in real circumstances. So I would ask Mr. 

Bennett, if he could, excuse me, Mr. Bennett, domestic tranquility 

is now at stake here. But hopefully you are going to be my excuse. 

Mr. Bennett, perhaps you could help enlighten the Committee by 

putting this into context. You mentioned a context before that this 

has to be played out in. The Admissions Act of 1959, which brings 

Hawaii into the Union, specifically provided for administration of 

what are called ceded lands. 

And Mr. Chairman, I will spare you the history of land tenure 

when you go from a prefeudal Kingdom to a shotgun Republic to 

an annexed territory to a State in the Union of the United States. 

But please take my word for it, there is something called ceded 

lands. It is hundreds of thousands of acres. When you include with 

that—and I would ask you to respond also, Mr. Bennett, the question of Hawaiian homelands and the establishment by the Congress 

53

of Hawaiian homelands with a blood quantum associated with it, 

if you could put into context then your position that this was a historical and political decision as opposed to a racial decision and 

make reference to what the Congress demanded and created, 

namely the Admissions Act, which brought Hawaii into the Union 

as a State and the Hawaiian Homelands Act, which is also created 

by the Congress in order to place Native Hawaiians on the land? 

Mr. BENNETT. Thank you. And indeed, what you said is entirely 

accurate, that Hawaii would not have been allowed to become a 

State by the Congress unless it specifically included in its Constitution a guarantee that it would continue the Hawaiian homes program, which Congress established in the 1920’s, which bases the 

right to occupy land on blood quantum of Native Hawaiians specifically, and based upon the fact that the government of the State of 

Hawaii would treat what you have described as the ceded lands, 

and hold them, in part, specifically for the benefits of the people, 

Native Hawaiians with a particular blood quantum. So that was 

part of the requirements imposed by this Congress on Hawaii to 

enter the union. 

Mr. ABERCROMBIE. Ceded lands were—essentially for purposes of 

our conversation here—lands that came from the time of the kingdom, from the overthrow of the kingdom and were administered by 

successive governmental entities on behalf of Native Hawaiians, 

the benefit of Native Hawaiians, as they ostensibly had been administered when the kingdom was in existence, correct? 

Mr. BENNETT. Absolutely. 

Mr. CHABOT. Is the gentleman from Virginia—an additional 

minute, but the lights are out but you have another minute. 

Mr. SCOTT. I would ask the other gentleman from Hawaii, if he 

had a question, what would that question be? 

Mr. CHABOT. I had a feeling you might ask that. 

Mr. CASE. Mr. Coffin, Burgess or Fein, any one of you, yes or no, 

Mr. Bennett made a representation that there had never been a 

case decided by the Supreme Court in which Congress’ exercise of 

its power under the Indian Commerce Clause to provide Federal 

recognition to an Indian tribe had ever been overturned? Yes or no? 

Is that true? Are you aware of any such case in the 200-plus years 

of law on this subject. 

Mr. COFFIN. The Supreme Court, on several occasions, recognized 

the limitations of Congress. 

Mr. CASE. Have they ever overturned Congress’ plenary powers 

to provide Federal recognition——

Mr. COFFIN. The issue has not been squarely presented to the 

United States Supreme Court, but in the most recent case dealing 

with the Native Hawaiian situation, Supreme Court scratched its 

head and said, there may very well be limitations on Congress’

power to recognize——

Mr. CASE. Are you referring to the Rice case——

Mr. COFFIN. Yes, I am. 

Mr. CASE. The decision under the 15th amendment—— Mr. COFFIN. And the 14th amendment, Mr. Case, provides the 

same answer. 

Mr. CHABOT. The gentleman’s time has expired. We want to 

thank the panel for their testimony here this afternoon. It has been 

54

very helpful, as I mentioned at the outset of the hearing, we don’t 

have direct jurisdiction over this particular bill. But it does raise 

significant Constitutional issues, and that was the purpose of the 

Constitutional Subcommittee holding this hearing this afternoon. I 

thought all four of the witnesses were very good and very helpful. 

I want to thank the Members for their attendance here this afternoon. 

Mr. NADLER. Could I just ask that the record reflect that we 

have been joined for much of this hearing by Mr. Faleomavaega? 

Mr. CHABOT. Yes. Absolutely. And I would have to say Eni is one 

of the more distinguished Members of the House of Representatives. And he and I had the good fortune to represent the Congress 

in the United Nations for a year together. 

Mr. FALEOMAVAEGA. Would the Chairman yield? 

Mr. CHABOT. Yes, I will. 

Mr. FALEOMAVAEGA. I know the Chairman is going to be most 

reasonable and fair in the process. And I know that he will decide 

in our favor to recognize——

Thank you, Mr. Chairman. 

Mr. CHABOT. I agree with the first part. I don’t know if I agree 

with the second part. 

So I want to thank again everyone for coming all those folks who 

also traveled all the way from the great State of Hawaii to be with 

us here this afternoon. And if there is no further business to come 

before the Committee, we are adjourned. Thank you. 

[Whereupon, at 3:15 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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JOINT PREPARED STATEMENT OF THE HONORABLE NEIL ABERCROMBIE AND THE

HONORABLE ED CASE, REPRESENTATIVES IN CONGRESS FROM THE STATE OF HAWAII


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APPENDIX TO THE STATEMENT OF THE HONORABLE MARK BENNETT:

TABLE OF FEDERAL ACTS AFFECTING NATIVE HAWAIIANS


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APPENDIX TO THE STATEMENT OF THE HONORABLE MARK BENNETT: ‘‘THE AUTHORITY

OF CONGRESS TO ESTABLISH A PROCESS FOR RECOGNIZING A RECONSTITUTED NATIVE HAWAIIAN GOVERNING ENTITY,’’ BY VIET D. DINH, GEORGETOWN UNIVERSITY

LAW CENTER AND BANCROFT ASSOCIATES PLLC


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APPENDIX TO THE STATEMENT OF THE HONORABLE MARK BENNETT: POSITION

STATEMENT OF THE ATTORNEY GENERAL OF THE STATE OF HAWAII


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APPENDIX TO THE STATEMENT OF SHANNEN W. COFFIN: BRIEF OF AMICI CURIAE,

CAMPAIGN FOR A COLOR-BLIND AMERICA, AMERICANS AGAINST DISCRIMINATION

AND PREFERENCES, AND THE UNITED STATES JUSTICE FOUNDATION, IN SUPPORT OF

PETITIONER, FILED BY SHANNEN W. COFFIN, COUNSEL OF RECORD FOR AMI CURIAE

IN THE CASE OF HAROLD F. RICE V. BENJAMIN J. CAYETANO


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APPENDIX TO THE STATEMENT OF SHANNEN W. COFFIN: HAROLD F. RICE V. BENJAMIN J. CAYETANO, ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATEES COURT OF APPEALS FOR THE NINTH CIRCUIT, RESPONDENT’S BRIEF IN OPPOSITION


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APPENDIX TO THE STATEMENT OF SHANNEN W. COFFIN: UNITED STATES SENATE, REPUBLICAN POLICY COMMITTEE, JON KYL, CHAIRMAN, ‘‘WHY CONGRESS MUST REJECT RACE-BASED GOVERNMENT FOR NATIVE HAWAIIANS’’


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APPENDIX TO THE STATEMENT OF H. WILLIAM BURGESS: HI-AKAKA BILL—SURVEY 2


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LETTER TO SENATOR JOHN MCCAIN FROM THE HONORABLE WILLIAM B. MOSCHELLA, 

ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, U.S. DEPARTMENT OF JUSTICE


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LETTER TO THE HONORABLE STEVE CHABOT FROM SENATOR JON KYL


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PREPARED STATEMENT OF DAVID B. ROSEN, ESQ.


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Æ


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