19–010

Calendar No. 185

108TH CONGRESS REPORT " SENATE ! 1st Session 108–85

EXPRESSING THE POLICY OF THE UNITED STATES REGARDING THE 

UNITED STATES RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PROVIDE A PROCESS FOR THE RECOGNITION BY THE UNITED STATES OF 

THE NATIVE HAWAIIAN GOVERNING ENTITY, AND FOR OTHER PURPOSES

JUNE 27, 2003.—Ordered to be printed 

Mr. CAMPBELL, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 344]

The Committee on Indian Affairs, to which was referred the bill 

(S. 344) expressing the policy of the United States regarding the 

United States relationship with Native Hawaiians and to provide 

a process for the recognition by the United States of the Native Hawaiian governing entity, and for other purposes, having considered 

the same, reports favorably thereon with an amendment and recommends that the bill, as amended, do pass. 

PURPOSE AND BACKGROUND

The purpose of S. 344 is to authorize a process for the reorganization of the Native Hawaiian government and to provide for the 

recognition of the Native Hawaiian government by the United 

States for purposes of carrying on a government-to-government relationship. 

On January 17, 1893, the government of the Kingdom of Hawai’i 

was overthrown by a group of American citizens and others, who 

acted with the support of U.S. Minister John Stephens and a contingent of U.S. Marines from the USS Boston. One hundred years 

later, a resolution extending an apology on behalf of the United 

States to Native Hawaiians for the illegal overthrow of the Native 

Hawaiian government and calling for a reconciliation of the relationship between the United States and Native Hawaiians was enacted into law (Public Law 103–150, Apology Resolution). The Apology Resolution acknowledges that the overthrow of the Kingdom of 

2

1 U.S. Department of the Interior and U.S. Department of Justice, From Mauka to Makai: The 

River of Justice Must Flow Freely: Draft Report on the Reconciliation Process Between the Federal Government and Native Hawaiians 17 (August 23, 2000).

Hawai’i occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished their claims to 

their inherent sovereignty as a people over their national lands to 

the United States, either through their government or through a 

plebiscite or referendum. 

In December of 1999, the Departments of Interior and Justice 

initiated a process of reconciliation in response to the Apology Resolution by conducting meetings in Native Hawaiian communities 

on each of the principal islands in the State of Hawai’i and culminating in two days of open dialogue. In each setting, members of 

the Native Hawaiian community identified what they believe are 

the necessary elements of a process to provide for the reconciliation 

of the relationship between the United States and the Native Hawaiian people. A report, entitled ‘‘From Mauka to Mauki: The River 

of Justice Must Flow Freely,’’ (Reconciliation Report) was issued by 

the two departments on October 23, 2000. The principal recommendation contained in the Reconciliation Report is set forth 

below:

Recommendation 1. It is evident from the documentation, statements, and views received during the reconciliation process undertaken by Interior and Justice pursuant 

to Public Law 103–150 (1993), that the Native Hawaiian 

people continue to maintain a distinct community and certain governmental structures and they desire to increase 

their control over their own affairs and institutions. As a 

matter of justice and equity, this report recommends that 

the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal law, as do Native American tribes. For generations, 

the United States has recognized the rights and promoted 

the welfare of Native Hawaiians as an indigenous people 

within our Nation through legislation, administrative action, and policy statements. To safeguard and enhance Native Hawaiian self-determination over their lands, cultural 

resources, and internal affairs, the Departments believe 

Congress should enact further legislation to clarify Native 

Hawaiians’ political status and to create a framework for 

recognizing a government-to-government relationship with 

a representative Native Hawaiian governing body.1

S. 344 provides a process for the reorganization of the Native Hawaiian government and, upon certification by the Secretary of the 

Interior, that the organic governing documents of the Native Hawaiian government are consistent with Federal law and the special 

political and legal relationship between the United States and the 

indigenous, native people of the United States, S. 344 provides for 

the recognition of the Native Hawaiian government by the United 

States for purposes of carrying on a government-to-government relationship with the Native Hawaiian government. 

3

2Pub. L. No. 83–3, ¶5, 73 Stat. 4, 5 (March 18, 1959) (Admission Act). 3 77 Stat. 472 (December 23, 1963). 

4 42 Stat. 108 (July 9, 1921), as amended (Hawaiian Homes Commission Act). 

5 528 U.S. 495 (2000). 

6The Court held that the provision of state law requiring those voting for the office of Trustee 

of the Office of Hawaiian Affairs to be Native Hawaiian violated the Fifteenth Amendment of 

the U.S. Constitution. Subsequently, in Arakaki v. State of Hawai’i, 314 F.3d 1091 (9th Cir. 

2002), the provision requiring candidates for that office to be Native Hawaiian was invalidated 

on similar grounds. 

NEED FOR LEGISLATION

Since the loss of their government in 1893, Native Hawaiians 

have sought to maintain political authority within their community. In 1978, the citizens of the State of Hawai’i recognized the 

long-standing efforts of the native people to give expression to their 

rights to self-determination and self-governance by amending the 

State constitution to provide for the establishment of a quasi-independent State agency, the Office of Hawaiian Affairs. The State 

constitution, as amended, provides that the Office is to be governed 

by nine trustees who are Native Hawaiian and who are to be elected by Native Hawaiians. The Office administers programs and 

services with revenues derived from lands which were ceded to the 

United States by the Republic of Hawai’i upon the annexation of 

Hawai’i by the United States in 1898 and were conveyed to the 

State of Hawai’i in trust upon its admission into the Union of 

States pursuant to § 5 of the Hawai’i Admission Act,2 and Public 

Law 88–233.3 The dedication of these revenues reflects the provisions of the Admission Act, section 5(f) of which provides that the 

ceded lands and the revenues derived therefrom should be held by 

the State of Hawai’i as a public trust for five purposes—one of 

which is the betterment of the conditions of Native Hawaiians. The 

Admission Act also provides that the new State assumes a trust responsibility for approximately 203,500 acres of land that had previously been set aside under Federal law in 1921 for Native Hawaiians in the Hawaiian Homes Commission Act.4

On February 23, 2000, the United States Supreme Court issued 

a ruling in the case of Rice v. Cayetano.5 The Supreme Court held 

that because the Office of Hawaiian Affairs is an agency of the 

State of Hawai’i, funded in part by appropriations made by the 

State legislature, the election for the trustees of the Office of Hawaiian Affairs must be open to all citizens of the State of Hawai’i 

who are otherwise eligible to vote in statewide elections.6 Accordingly, all citizens of the State of Hawai’i may vote for the candidates for the nine trustee positions and may themselves be candidates for these offices. 

The native people of Hawai’i have thus been divested of the 

mechanism that was established under the Hawai’i State Constitution that, since 1978, has enabled them to give expression to their 

rights as indigenous, native people of the United States to self-determination and self-governance. S. 344 is designed to address 

these developments by providing a means under Federal law, consistent with the Federal policy of self-determination and self-governance for America’s indigenous, native people, for Native Hawaiians to have a status similar to that of the other indigenous, native 

people of the United States. 

4

7 Id., § 4; Haw. Const., Art. XVI, § 7. 8 Id., § 5(f); Haw. Const. Art. XII, § 4. 9 Id., § 5(f); Haw. Const. Art. XII, § 4. 10 Id. 

FEDERAL DELEGATION OF AUTHORITY TO THE STATE OF HAWAI’I

For the past two hundred and ten years, the United States Congress, the Executive Branch, and the U.S. Supreme Court have recognized certain legal rights and protections for America’s indigenous peoples. Since the founding of the United States, Congress 

has exercised a constitutional authority over indigenous affairs and 

has undertaken an enhanced duty of care for America’s indigenous 

peoples. This has been done in recognition of the sovereignty possessed by the native people—a sovereignty which pre-existed the 

formation of the United States. The Congress’ exercise of its constitutional authority is also premised upon the status of the indigenous people as the original inhabitants of this nation who occupied 

and exercised dominion and control over the lands over which the 

United States subsequently acquired jurisdiction. 

The United States has long recognized the existence of a special 

political relationship with the indigenous people of the United 

States. As Native Americans—American Indians, Alaska Natives, 

and Native Hawaiians—the United States has recognized that they 

are entitled to special rights and considerations, and the Congress 

has enacted laws to give expression to the respective legal rights 

and responsibilities of the Federal government and the native people. 

From time to time, with the consent of the affected States, the 

Congress has sought to more effectively address the conditions of 

the indigenous people by delegating Federal responsibilities to various states. In 1959, the State of Hawai’i assumed the Federallydelegated responsibility of administering 203,500 acres of land that 

had been set aside by Congress in 1921 for the benefit of the native 

people of Hawai’i under the Hawaiian Homes Commission Act.7 In 

addition, the State agreed to the imposition of a public trust upon 

all of the lands ceded to the State upon admission.8 One of the five 

purposes for which the public trust was established is the ‘‘betterment of the conditions of native Hawaiians[.]’’ 9 The Federal authorization for this public trust clearly anticipated that the State’s 

constitution and laws would provide for the manner in which the 

terms of trust would be carried out.10

In 1978, the citizens of the State of Hawai’i exercised the Federally-delegated authority by amending the State constitution in furtherance of the special relationship with Native Hawaiians. The 

delegates to the 1978 constitutional convention recognized that Native Hawaiians had no other homeland, and thus that the protection of Native Hawaiian subsistence rights to harvest the ocean’s 

resources, to fish the freshwater streams, and to hunt and gather, 

as well as the protection of Native Hawaiians’ rights to exercise 

their rights to self-determination and self-governance, and to preserve their culture and language, could only be accomplished within their native homeland, the present State of Hawai’i. 

Hawai’i’s adoption of amendments to the State constitution to 

fulfill the special relationship with Native Hawaiians is consistent 

with the practice of other states that have established special relaVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
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11Felix S. Cohen, The Spanish Origin of Indian Rights in the Law of the United States, 31, 

Geo. L.J. 1 (1942). 

tionships with the native inhabitants of their areas. Fourteen 

states have extended recognition to Indian tribes that are not recognized by the Federal government, and thirty-two states have established commissions and offices to address matters of policy affecting the indigenous citizenry. 

HISTORY

There is a history, a course of dealings, and a body of law which 

inform the special status of the indigenous, native people of the 

United States. It is a history that begins well before the first European set foot on American shores—it is a history of those who occupied and possessed the lands that were later to become the United 

States—the aboriginal, indigenous native people of this land who 

were America’s first inhabitants. 

The indigenous people did not share similar customs or traditions. Their cultures were diverse. Some of them lived near the 

ocean and depended upon its bounty for their sustenance. Others 

made their homes amongst the rocky ledges of mountains and canyons. Some native people fished the rivers, while others gathered 

berries and roots from the woodlands, harvested rice in the lake 

areas, and hunted wildlife on the open plains. Their subsistence 

lifestyles caused some to follow nomadic ways, while others established communities that are well over a thousand years old. Those 

who later came to America call them ‘‘aborigines’’ or ‘‘Indians’’ or 

‘‘natives’’ but the terms were synonymous. Over time, these terms 

have been used interchangeably to refer to those who occupied and 

possessed the lands of America prior to European contact. 

Although the differences in their languages, their cultures, their 

belief systems, their customs and traditions, and their geographical 

origins may have kept them apart and prevented them from developing a shared identity as the native people of this land—with the 

arrival of western ‘‘discoverers’’ in the United States, their histories 

are sadly similar. Over time, they were dispossessed of their homelands, removed, relocated, and thousands, if not millions, succumbed to diseases for which they had no immunities and fell victim to the efforts to exterminate them. In the early days of America’s history, the native peoples’ inherent sovereignty informed the 

course of the newcomers’ dealings with them. Spanish law of the 

1500’s and 1600’s presaged how the United States would recognize 

their aboriginal title to land, and treaties became the instruments 

of fostering peaceful relations.11

As America’s boundaries expanded, new territories came under 

the protection of the United States. Eventually, as new States entered the Union, there were other aboriginal, indigenous, native 

people who became recognized as the ‘‘aborigines’’ or ‘‘Indians’’ or 

‘‘natives’’ of contemporary times—these included the Eskimos, and 

the Aleuts, and other native people of Alaska, and later, the indigenous, native people of Hawai’i. 

For nearly a century, Federal law has recognized these three 

groups—American Indians, Alaska Natives, and Native Hawaiians—as comprising the class of people known as Native Americans. Well before the Fourteenth and Fifteenth Amendments to the 

6

12 1 Ralph S. Kuykendall, The Hawaiian Kingdom 3 (1938). 13 Id. 14Public Law 103–150. (Cite to relevant section of Findings) 15Lawrence H. Fuchs, Hawai’i Pono: An Ethnic and Political History 5 (1961); Native Hawaiian Rights Handbook 5 (Melody K. MacKenzie ed., 1991). 16See Jon J. Chinen, The Great Mahele 3–4 (1958); Fuchs, supra at 5–7; MacKenzie, supra 

at 3–5. 17MacKenzie, supra at 4. 18 Id. at 4. 

U.S. Constitution were adopted to address the effects of historic 

patterns of racial discrimination, the Supreme Court had recognized the unique status of America’s native peoples under the Constitution and laws of the United States. 

Native Hawaiians are the indigenous, aboriginal people of the island group that is today the State of Hawai’i. Hawai’i was originally settled by voyagers from central and eastern Polynesia, traveling immense distances in double-hulled voyaging canoes and arriving in Hawai’i perhaps as early as 300 A.D. The original Hawaiians were thus part of the Polynesian family of peoples, which includes the Maori of New Zealand, the Samoans, Tongans, Tahitians, Cook Islanders, Marquesans, and Easter Islanders.12 Hundreds of years of Hawaiian isolation followed the end of the era of 

‘‘long voyages.’’ 13 During these centuries, the Polynesians living in 

Hawai’i evolved a unique system of self-governance and a ‘‘highly 

organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture, and religion.’’ 14

At the pinnacle of the political, economic, and social structure of 

the major Hawaiian islands was a mo’i, a king. Below the king, individuals occupied three major classes. The highest class, the ali’i, 

were important chiefs. Next in rank were members of the kahuna 

class, who advised the ali’i as seers, historians, teachers, priests, 

astronomers, medical practitioners, and skilled workers. Third, the 

maka’ainana were the ‘‘people of the land,’’ who fished and farmed 

and made up the bulk of the population.15

The political, economic, and social structures were mutually supportive. The kings held all land and property which they subdivided among the chiefs. Substantial chiefs supervised large land 

areas (ahupua’a) which extended from the sea to the mountains so 

that they could fish, farm, and have access to the products of the 

mountain forest. They, in turn, divided the ahupua’a into ’ili, run 

by lesser chiefs whose retainers cultivated the land. The commoners worked the land and fished, exchanging labor for protection 

and some produce from their own small plots. Agriculture was 

highly diverse, including taro (kalo), bananas, yams, sugar cane, 

and breadfruit. The taro plant, whose starchy root is pounded into 

poi, requires substantial moisture so Hawaiians developed a superior system of irrigation.16

The Hawaiian economy was also dependent upon many skilled 

artisans. For example, special skills were necessary for the building 

of outrigger canoes, the making of tapa (a paper-like material used 

for clothing and bedding), the drying of fish, the construction of irrigation systems and fishponds, the catching of birds (whose feathers were worn in chiefs’ cloaks and helmets), and the sharpening 

of stones for building and fighting.17

‘‘The concept of private ownership of land had no place in early 

Hawaiian thought.’’ 18 The authority of the mo’i or king was derived 

7

19 Id. 20 Id.; see also Fuchs, supra at 5. 21See Ralph S. Kuykendall & A. Grove Day, Hawai’i: A History 11 (1964). 22 1 Kuykendall, supra at 10–11. 23 Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y 

Rev. 95, 95 (1998) (citing, e.g., Joseph Feher, Hawai’i: A Pictorial History 36–132 (1969)). 24See, e.g., Fuchs, supra at 74–75. 25This estimate is conservative; other sources place the number at one million. David E. 

Stannard, Before the Horror: the Population of Hawai’i on the Eve of Western Contact 59 (1989). 26 E.S. & Elizabeth G. Handy, Native Planters in Old Hawai’i 331 (1972). 

from the gods, and he was a trustee of the land and other natural 

resources of the island.19 Chiefs owed military service, taxes, and 

obedience to the king, but neither chiefs, nor skilled laborers, nor 

commoners were tied to a particular piece of land or master. All 

lands conferred by the king or chief were given subject to revocation. In turn neither commoners nor skilled laborers were required 

to stay with the land; if maltreated or dissatisfied, an individual 

could move to another ahupua’a or ’ili.20 Hawaiians also had a complex religion focused on several major gods—most notably Kane, 

god of life and light, Lono, god of the harvest and peace, Ku, god 

of war and government, and Pele, goddess of fire. The religion generated a detailed system of taboos (kapu), enforced by priests, 

which supported the political, economic and social systems of the 

islands.21

The language and culture of the Hawaiian people were rich and 

complex. Hawaiians possessed an ‘‘extensive literature accumulated 

in memory, added to from generation to generation, and handed 

down by word of mouth. It consisted of mele (songs) of various 

kinds, genealogies and honorific stories * * * [much of which] was 

used as an accompaniment to the hula.’’ 22 Hawaiians also had a ‘‘rich artistic life in which they created colorful feathered capes, 

substantial temples, carved images, formidable voyaging canoes, 

tools for fishing and hunting, surfboards, weapons of war, and dramatic and whimsical dances.’’ 23

The communal nature of the economy and the caste structure of 

the society resulted in values strikingly different from those prevalent in more competitive western economies and societies. For example, Hawaiian culture stressed cooperation, acceptance, and generosity, and focused primarily on day-to-day living.24

Hawai’i was not utopia. There were wars between the island 

chiefs and among other ali’i. Natural disasters, such as tidal waves 

and volcanic eruptions, often killed or displaced whole villages. But 

Hawai’i’s social, economic, and political system was highly developed and evolving, and its population, conservatively estimated to 

be at least 300,000 25 was relatively stable before the arrival of the 

first European explorers. 

Hawai’i was ‘‘discovered’’ by Europeans in 1778, when the first 

haole, or white foreigner, Captain James Cook of the British Royal 

Navy, landed. Because he arrived during a festival associated with 

Lono in a ship whose profile resembled Lono’s symbol, he was 

greeted as that long-departed god. Other foreign vessels soon followed on journeys of exploration or trade.26

In the years that followed the arrival of Cook and other non-Hawaiians, warring Hawaiian kings, now aided by haole weapons and 

advisers, fought for control of Hawai’i. King Kamehameha I won 

control of the Big Island of Hawai’i, and then successfully invaded 

Maui, Lana’i, Moloka’i, and O’ahu. By 1810, he also gained the alVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
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27See Fuchs, supra at 8–9. 28 Id. at 9; Kuykendall & Day, supra, at 40–41. 29See Fuchs, supra, at 10–11; Kuykendall & Day, supra, at 41–43; MacKenzie, supra, at 5. 30See Fuchs, supra, at 18–19; Mackenzie, supra, at 6, 9–10. 31See Felix S. Cohen, Handbook of Federal Indian Law 799 (2d ed. 1982) (‘‘[a] small number 

of Westerners residing in Hawai’i, bolstered by Western warships which intervened at critical 

times, exerted enormous political influence[.]’’). 32See e.g., Mackenzie, supra, at 6; 1 Kuykendall, supra, at 206–26. 

legiance of the King of Kaua’i. Despite the political unification of 

the islands, Kamehameha I’s era was but another in a series of 

steps toward the devastation of the Hawaiian people. 

The immediate and brutal decline of the Native Hawaiian population was the most obvious result of contact with the West. Between Cook’s arrival and 1820, disease, famine, and war killed 

more than half of the Native Hawaiian population. By 1866 only 

57,000 Native Hawaiians remained from the basically stable pre– 1778 population of at least 300,000. The impact was greater than 

the numbers can convey: old people were left without the young 

adults who supported them; children were left without parents or 

grandparents. The result was a rending of the social fabric. 

This devastating population loss was accompanied by cultural, 

economic, and psychological destruction. Western sailors, merchants, and traders did not respect Hawaiian kapu (taboos) or religion and were beyond the reach of the priests. The chiefs began to 

imitate the foreigners whose ships and arms were so superior to 

their own. The kapu were abolished soon after Kamehameha I 

died.27 Christianity, principally represented by American missionaries, quickly flowed into the breach. Christianity condemned not 

only the native religion, but the world view, language, and culture 

that were intertwined with it. The loss of the old gods, along with 

the law and culture predicated on their existence, resulted in substantial social conflict and imbalance.28

Western merchants also forced rapid change in the islands’ economy. Initially, Hawaiian chiefs sought to trade for western goods 

and weapons, taxing and working commoners nearly to death to obtain the supplies and valuable sandalwood needed for such trades 

and nonetheless becoming seriously indebted. As Hawai’i’s stock of 

sandalwood declined, so, too, did that trade, but it was replaced by 

whaling and other mercantile activities.29 More than four-fifths of 

Hawai’i’s foreign commerce was American; the whaling services industry and mercantile business in Honolulu were almost entirely 

in American hands.30 What remained to the Hawaiian people was 

their communal ownership and cultivation of land, but, as described, that, too was soon replaced by a western system of individual property ownership. 

As the middle of the 19th century approached, the islands’ small 

non-native population wielded an influence far in excess of its 

size.31 These influential westerners sought to limit the absolute 

power of the Hawaiian king over their legal rights and to implement property law so that they could accumulate and control land. 

By dint of foreign pressure, these goals were achieved.32 In 1840, 

King Kamehameha III promulgated a new constitution, establishing a hereditary House of Nobles and an elected House of Commons. And in 1842, the King authorized the Mahele—the beginning 

of the division of Hawai’i’s communal land which led to the transfer 

of substantial amounts of land to western hands. In the 1848 

9

33Many maka’ainana (commoners) did not secure their land because they did not know of or 

understand the new laws, could not afford the survey costs, feared that a claim would be perceived as a betrayal of the chief, were unable to farm without the traditional common cultivation 

and irrigation of large areas, were killed in epidemics, or migrated to cities. Id. 34 (quoting S. Con. Res. 2, 10th Leg. of the Territory of Hawai’i, 1991 Senate Journal 25–26). 

Mahele, the King conveyed about 1.5 million of the approximately 

4 million acres in the islands to the main chiefs; he reserved about 

1 million acres for himself and his royal successors (Crown Lands), 

and allocated about 1.5 million acres to the government of Hawai’i 

(Government Lands). All land remained subject to the rights of native tenants. In 1850, after the division was accomplished, an act 

was passed permitting non-natives to purchase land in fee simple. 

The expectation was that commoners would receive a substantial 

portion of the lands that were distributed to the chiefs because 

they were entitled to file claims to the lands that their ancestors 

had cultivated. In the end, however, only 28,600 acres (less than 

1% of the land) were awarded to about 8,000 individual farmers.33

Soon after the Mahele, there was a dramatic concentration of 

land ownership in plantations, estates, and ranches owned by nonnatives. Ultimately, the 2,000 westerners who lived on the islands 

obtained much of the profitable acreage from the commoners and 

chiefs. 

These economic changes were devastating for the Native Hawaiian people. The communal land system of subsistence farming was 

replaced by an economy dominated by western-owned plantation 

agriculture, and water formerly used for taro cultivation was increasingly diverted for irrigation of sugar plantations. Native Hawaiians were not considered sufficiently cheap, servile labor for the 

backbreaking plantation work, and, indeed, did not seek it. Unable 

successfully to adjust either to the new economic life of the plantation or to the competitive economy of the city, many Native Hawaiians became part of ‘‘the floating population crowding into the congested tenement districts of the larger towns and cities of the Territory’’ under conditions which many believed would ‘‘inevitably result in the extermination of the race.’’ 34 Native Hawaiians developed a debilitating sense of inferiority, and descended to the bottom tier of the economy and the society of Hawai’i. 

The mutual interests of Americans living in Hawai’i and the 

United States became increasingly clear as the 19th century progressed. American merchants and planters in Hawai’i wanted access to mainland markets and protection from European and Asian 

domination. The United States developed a military and economic 

interest in placing Hawai’i within its sphere of influence. In 1826, 

the United States and Hawai’i entered into the first of the four 

treaties the two nations signed during the 19th century. Americans 

remained concerned, however, about the growing influence of the 

English (who briefly purported to annex Hawai’i in 1842) and the 

French (who forced an unfavorable treaty on Hawai’i in 1839 and 

landed troops in 1849). American advisors urged the King to pursue international recognition of Hawaiian sovereignty, backed up 

by an American guarantee of continued independence. 

In pronouncements made during the 1840s, the administration of 

President John Tyler announced the Tyler Doctrine, an extension 

of the Monroe Doctrine. It asserted that the United States had a 

paramount interest in Hawai’i and would not permit any other naVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
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35S. Exec. Doc. No. 52–77, 40–41 (1893) (describing 1842 statement). 36 Jan. 30, 1875, U.S.-Haw., 19 Stat. 625 (1875) (Reciprocity Treaty). 

tion to have undue control or exclusive commercial rights there. 

Secretary of State Daniel Webster explained:

The United States * * * are more interested in the fate 

of the islands, and of their government, than any other nation can be; and this consideration induces the President 

to be quite willing to declare, as the sense of the Government of the United States, that the Government of the 

* * * Islands ought to be respected; that no power ought 

either to take possession of the islands as conquest, or for 

the purpose of colonization, and that no power ought to 

seek for any undue control over the existing government, 

or any exclusive privileges or preferences in matters of 

commerce.35

America’s already ascendant political influence in Hawai’i was 

heightened by the rapid growth of the island sugar industry which 

followed the Mahele. Sugar planters in Hawai’i were eager to eliminate the United States’ tariff on their exports to California and Oregon. Although sugar growers within the United States strongly resisted the lifting of the tariff, American fear of ‘‘incipient foreign 

domination of the Islands’’ was a stronger influence than the mainland growers’ lobby. The 1875 Convention on Commercial Reciprocity 36 eliminated the American tariff on sugar from Hawai’i and 

virtually all tariffs that Hawai’i had placed on American products. 

Critically, it also prohibited Hawai’i from giving political, economic, 

or territorial preferences to any other foreign power. Finally, when 

the Reciprocity Treaty was extended in 1887, the United States 

also obtained the right to establish a military base at Pearl Harbor. 

Americans were determined to ensure that the Hawaiian government did nothing to damage Hawai’i’s growing political and economic relationship with America. But the Hawaiian King and people were bitter about the loss of their lands to foreigners and were 

hostile both to the tightening bond with the United States and the 

increasing importation of Asian labor to work the plantations. 

Matters came to a head in 1887, when King Kalakaua appointed 

a prime minister who had the strong support of the Hawaiian people and who opposed granting a base at Pearl Harbor as a condition for extension of the Reciprocity Treaty, and took other measures that were considered anti-western. The business community, 

backed by the non-native military group, the Honolulu Rifles, 

forced the prime minister’s resignation and the enactment of a new 

constitution. The new constitution—often referred to as the Bayonet Constitution—reduced the king to a figure of minor importance. 

It extended the right to vote to western males whether or not they 

were citizens of the Hawaiian Kingdom, and disenfranchised almost all native voters by giving only residents with a specified income level or amount of property the right to vote for members of 

the House of Nobles. The representatives of propertied westerners 

took control of the legislature. A suspected native revolt in favor 

of the King’s younger sister, Princess Lili’uokalani, and a new constitution were quelled when the American minister summoned 

United States Marines from an American warship off Honolulu. 

Westerners remained firmly in control of the government until the 

11

37See MacKenzie, supra at 11; 3 Kuykendall, supra at 585–86. 38See Fuchs, supra at 30. 39L.A. Thurston, Memoirs of the Hawaiian Revolution 230–32 (1936). 40See Kuykendall & Day, supra at 179. 41President’s Message Relating to the Hawaiian Islands, House Ex. Doc. No. 47, 53d Cong., 

2d Sess. (December 18, 1893), reprinted in Foreign Relations of the United States: 1894: Affairs 

in Hawai’i, App. II, at 443, 457 (1895).

death of the King in 1891, when Queen Lili’uokalani came to 

power. 

On January 14, 1893, the Queen was prepared to promulgate a 

new constitution, restoring the sovereign’s control over the House 

of Nobles and limiting the franchise to Hawaiian subjects.37 She 

was, however, forced to withdraw her proposed constitution.38

Despite the Queen’s apparent acquiescence, the majority of westerners recognized that the Hawaiian monarchy posed a continuing 

threat to the unimpeded pursuit of their interests. They formed a 

Committee of Public Safety to overthrow the Kingdom. Mercantile 

and sugar interests also favored annexation by the United States 

to ensure access on favorable terms to mainland markets and protection from Oriental conquest. 

A Honolulu publisher and member of the Committee, Lorrin 

Thurston, informed the United States of a plan to dethrone the 

Queen. In response, the Secretary of the Navy informed Thurston 

that President Harrison had authorized him to say that ‘‘if conditions in Hawai’i compel you to act as you have indicated, and you 

come to Washington with an annexation proposition, you will find 

an exceedingly sympathetic administration here.39 The American 

annexation group collaborated closely with the United States’ Minister in Hawai’i, John Stevens. 

On January 16, 1893, at the order of Minister Stevens, American 

soldiers marched through Honolulu, to a building known as Anion 

Hall, located near both the government building and the palace. 

The next day, local revolutionaries seized the government building 

and demanded that Queen Lili’uokalani abdicate. Stevens immediately recognized the rebels’ ‘‘provisional government’’ and placed 

it under the United States’ protection. 

President Harrison promptly sent an annexation treaty to the 

Senate for ratification and denied any United States involvement 

in the revolution. Before the Senate could act, however, President 

Cleveland, who had assumed office in March of 1893, withdrew the 

treaty. An investigator reported that the revolution had been accomplished by force with American assistance and against the 

wishes of Hawaiians.40 To Congress, President Cleveland declared: 

[I]f a feeble but friendly state is in danger of being 

robbed of its independence and its sovereignty by a misuse 

of the name and power of the United States, the United 

States cannot fail to vindicate its honor and its sense of 

justice by an earnest effort to make all possible reparation.41

Cleveland demanded the restoration of the Queen. But the Senate Foreign Relations Committee issued a report ratifying Stevens’

actions and recognizing the provisional government, explaining 

that relations between the United States and Hawai’i are unique 

12

42S. Rep. No. 53–277, at 21 (1894) (emphasis supplied). 43See Kuykendall & Day, supra at 183. 44 Id. at 184; MacKenzie, supra at 13. 45 Noenoe Silva, Ke Ku’e Kupa’a Loa Nei Makou: Kanaka Maoli Resistance to Colonization 

170 (1999) (Silva). 46W.A. Russ, The Hawaiian Republic (1894–1898) 33–34 (1961). 47See MacKenzie, supra at 13. 48 A short-lived counter-revolution commenced on January 7, 1895. Republic police discovered 

it, arrested many royalist leaders, and imprisoned the Queen. Eventually, she was forced to 

swear allegiance to the new Republic in exchange for clemency for the revolutionaries. MacKenzie, supra at 13; Fuchs, supra at 34–35; Silva, supra at 172–176. Among those arrested for 

supporting the counter-revolution were Robert Wilcox and Prince Jonah Kuhio Kalaniana’ole, 

later elected as the Territory of Hawai’i’s first and second Delegates, respectively, to the U.S. 

House of Representatives. 49 Russ, supra at 198, 209. The resolutions were signed by 21,269 people, representing more 

than 50% of the Native Hawaiian population in Hawai’i at that time. See Van Dyke, supra at 

103 & n.48 (citing Dan Nakaso, Anti-Annexation Petition Rings Clear, Honolulu Advertiser, 

Aug. 5, 1998, at 1); Tom Coffman, Nation Within: The Story of America’s Annexation of the Nation of Hawai’i 273–82 (1998); Silva, supra at 184–206. 50See Kuykendall & Day, supra at 188; MacKenzie, supra at 14. 

because ‘‘Hawai’i has been all the time under a virtual suzerainty 

of the United States.’’ 42

As a result of this impasse, the United States government neither restored the Queen nor annexed Hawai’i. The Provisional Government thus called a constitutional convention whose composition 

and members it controlled.43 The convention promulgated a constitution for the new Republic of Hawai’i that imposed property 

and income qualifications as prerequisites for the franchise and for 

the holding of elected office.44 Furthermore, Article 101 of the Constitution of the Republic of Hawai’i required prospective voters to 

swear an oath in support of the Republic and declaring that they 

would not, ‘‘either directly or indirectly, encourage or assist in the 

restoration or establishment of a monarchical form of government 

in the Hawaiian Islands.’’ The overwhelming majority of the Native 

Hawaiian population, loyal to their Queen, refused to swear such 

an oath and was thus effectively disenfranchised.45

‘‘Native Hawaiians were, perhaps, not extremely sophisticated in 

governmental matters, but it took no great amount of political insight to perceive that this constitutional system was a beautifully 

devised oligarchy devoted to the purpose of keeping the American 

minority in control of the Republic.’’ 46 The Republic also claimed 

title to the Government Lands and Crown Lands without paying 

compensation to the monarch.47 In 1894 Sanford Dole was elected 

President of the Republic of Hawai’i and the United States gave his 

government prompt recognition.48

The election of President McKinley in 1896 gave the annexation 

movement new vigor. Another annexation treaty was sent to the 

Senate. Simultaneously, the Native Hawaiian people adopted resolutions which they sent to Congress stating that they opposed annexation and wanted to be an independent kingdom.49 The annexation treaty failed in the Senate because a two-thirds majority 

could not be obtained as required under the Treaty Clause of the 

U.S. Constitution. Accordingly, pro-annexation forces in the House 

of Representatives introduced a Joint Resolution of Annexation, the 

adoption of which required only a simple majority in each House 

of Congress. The balance was tipped at this moment by the United 

States’ entry into the Spanish-American War. American troops 

were fighting in the Pacific, particularly in the Philippines, and the 

United States needed to be sure of a Pacific base.50 In July 1898, 

13

51Fuchs, supra at 36. 52 Joint Resolution for Annexing the Hawaiian Islands to the United States, ch. 55, 30 Stat. 

750, 751 (1898) (Annexation Resolution). 53 Act of April 30, 1900, ch. 339, 31 Stat. 141 (1900) (Organic Act). 54 H.R. Rep. No. 66–839, at 4 (1920). 55 Hearings before the Committee on the Territories, House of Representatives, 66th Cong., 

2d Sess., on Proposed Amendments to the Organic Act of the Territory of Hawai’i, February 3, 

4, 5, 7, and 10, 1920, at 129–30 (statement of Secretary Lane that ‘‘[w]e have got the right to 

set aside these lands for this particular body of people, because I think the history of the islands 

will justify that before any tribunal in the world,’’ and rejecting the argument that legislation 

aimed at ‘‘this distinct race’’ would be unconstitutional because ‘‘it would be an extension of the 

same idea’’ as that established in dealing with Indians); see also id. at 127 (colloquy between 

Secretary Lane and Representative Monahan, analogizing status of Native Hawaiians to that 

of Indians), and at 167–70 (colloquy between Representative Curry, Chair of the Committee, and 

Continued

the Joint Resolution was enacted—‘‘the fruit of approximately seventy-five years of expanding American influence in Hawai’i.’’ 51

On August 12, 1898, the Republic of Hawai’i ceded sovereignty 

and conveyed title to its public lands, including the Government 

and Crown Lands, to the United States.52 In 1900 Congress passed 

the Hawai’i Organic Act,53 establishing Hawaiians territorial government. And, with the enactment of the Admission Act in 1959, 

Congress admitted Hawai’i to the Union as the fiftieth state. 

Hawaiian Homes Commission Act 

Congress explicitly recognized the existence of a special or trust 

relationship between the Native Hawaiian people and the United 

States with the enactment of the Hawaiian Homes Commission Act 

in 1921. 

In 1826 it was estimated that there were 142,650 full-blooded 

Native Hawaiians in the Hawaiian islands. By 1919 their numbers 

had been reduced to 22,600. Historically, the Native Hawaiian’s 

subsistence lifestyles required that they live near the ocean to fish 

and near fresh water streams to irrigate their staple food crop 

(taro) within their respective ahupua’a. Beginning in the early 

1800’s, more and more land was being made available to foreigners 

and was eventually leased to them to cultivate pineapple and sugar 

cane. Large numbers of Native Hawaiians were forced off the lands 

that they had traditionally occupied. As a result, they moved into 

the urban areas, often lived in severely-overcrowded tenements and 

rapidly contracted diseases for which they had no immunities. 

By 1920, there were many who were concluding that the native 

people of Hawai’i were a ‘‘dying race,’’ and that if they were to be 

saved from extinction, they must have the means of regaining their 

connection to the land, the ’aina. In hearings on the matter, Secretary of the Interior Franklin Lane explained the trust relationship on which the statute was premised:

One thing that impressed me * * * was the fact that the 

natives of the islands who are our wards, I should say, and 

for whom in a sense we are trustees, are falling off rapidly 

in numbers and many of them are in poverty.54

Lane explicitly analogized the relationship between the United 

States and Native Hawaiians to the trust relationship between the 

United States and other Native Americans, explaining that special 

programs for Native Hawaiians are fully supported by history and 

‘‘an extension of the same idea’’ that supports such programs for 

other Indians.55

14

Representatives Dowell, and Humphreys, making the same analogy and rejecting the objection 

that ‘‘we have no government or tribe to deal with here’’). 56 Id. at 3–4. Wise’s testimony was quoted and adopted in the House Committee on the Territories’ report to the full U.S. House of Representatives. 57 59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio Kalaniana’ole). 58 H.R. Rep. 839, 66th Cong., 2d Sess. 5 (statement of Secretary Lane). 59 Hawaiian Homes Commission Act, § 203. 60 H.R. Rep. No. 66–839, at 11 (1920). 

Senator John H. Wise, a member of the Legislative Commission 

of the Territory of Hawai’i, testified before the United States House 

of Representatives:

The idea in trying to get the lands back to some of the 

Hawaiians is to rehabilitate them. I believe that we should 

get them on lands and let them own their own homes 

* * *. The Hawaiian people are a farming people and fishermen, out of door people, and when they were frozen out 

of their lands and driven into the cities they had to live 

in the cheapest places, tenements. That is one of the reasons why the Hawaiian people are dying. Now, the only 

way to save them, I contend, is to take them back to the 

lands and give them the mode of living that their ancestors were accustomed to and in that way rehabilitate 

them.56

Prince Jonah Kuhio Kalanianaole (Prince Kuhio), the Territory’s 

sole delegate to Congress, testified before the full U.S. House of 

Representatives: ‘‘The Hawaiian race is passing. And if conditions 

continue to exist as they do today, this splendid race of people, my 

people, will pass from the face of the earth.’’ 57 Secretary of Interior 

Lane attributed the declining population to health problems like 

those faced by the ‘‘Indian in the United States’’ and concluded the 

Nation must provide similar remedies.58

The effort to ‘‘rehabilitate’’ this dying race by returning Native 

Hawaiians to the land led the Congress to enact the Hawaiian 

Homes Commission Act on July 9, 1921. The Act sets aside approximately 203,500 acres of public lands (former Crown and Government lands ceded to the United States upon Annexation) for 

homesteading by Native Hawaiians.59 Congress compared the Act 

to ‘‘previous enactments granting Indians * * * special privileges 

in obtaining and using the public lands.’’ 60

In support of the Act, the House Committee on the Territories 

recognized that, prior to the Mahele, Hawaiians had a one-third interest in the land. The Committee reported that the Act was necessary to address the way Hawaiians had been short-changed in 

prior land distribution schemes. Prince Kuhio further testified before the U.S. House of Representatives that Hawaiians had an equitable interest in the unregistered lands that reverted to the 

Crown before being taken by the Provisional Government and, subsequently, the Territorial Government:

[T]hese lands, which we are now asking to be set aside 

for the rehabilitation of the Hawaiian race, in which a onethird interest of the common people had been recognized, 

but ignored in the division, and which reverted to the 

Crown, presumably in trust for the people, were taken 

over by the Republic of Hawai’i. * * * By annexation these 

lands became a part of the public lands of the United 

15

61 59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio Kalaniana’ole). 62 25 U.S.C. §§ 331–334, 339, 342, 348, 349, 354, 381 (1998). 63Office of State Planning, Office of the Governor, Pt. I, 1 Report on Federal Breaches of the 

Hawaiian Home Lands Trust, 4–6 (1992). 64 Id. at 12. 

States, and by the provisions of the organic act under the 

custody and control of the Territory of Hawai’i. * * * We 

are not asking that what you are to do be in the nature 

of a largesse or as a grant, but as a matter of Justice.61

The Act provides that the lessee must be a Native Hawaiian, 

who is entitled to a lease for a term of ninety-nine years, provided 

that the lessee occupy and use or cultivate the tract within one 

year after the lease is entered into. A restriction on alienation, like 

those imposed on Indian lands subject to allotment, was included 

in the lease. Also like the general allotment acts affecting Indians,62 the leases were intended to encourage rural homesteading so 

that Native Hawaiians would leave the urban areas and return to 

rural subsistence or commercial farming and ranching. In February, 1923, the Congress amended the Act to permit one-half acre 

residence lots and to provide for home construction loans. Thereafter, the demand for residential lots far exceeded the demand for 

agricultural or pastoral lots.63

For the next forty years, during the Territorial period (1921– 1959) and the first two decades of statehood (1959–1978), inadequate funding forced the Department of Hawaiian Home Lands to 

lease its best lands to non-Hawaiians in order to generate operating funds. There was little income remaining for the development 

of infrastructure or the settlement of Hawaiians on the home lands. 

The lack of resources—combined with questionable transfers and 

exchanges of Hawaiian home lands, and a decades-long waiting list 

of those eligible to reside on the home lands—rendered the home 

lands program a tragically illusory promise for most Native Hawaiians.64 While the Act did not succeed in its purpose, its enactment 

has substantial importance because it constitutes an express affirmation of the United States’ trust responsibility to the Native Hawaiian people. 

Hawai’i Admission Act 

As a condition of statehood, the Hawai’i Admission Act required 

the new State to adopt the Hawaiian Homes Commission Act and 

imposed a public trust on the lands ceded to the State. The 1959 

Compact between the United States and the People of Hawai’i by 

which Hawai’i was admitted into the Union expressly provides 

that:

As a compact with the United States relating to the 

management and disposition of the Hawaiian home lands, 

the Hawaiian Homes Commission Act, 1920, as amended, 

shall be adopted as a provision of the Constitution of said 

State, as provided in section 7, subsection (b) of this Act, 

subject to amendment or repeal only with the consent of 

the United States, and in no other manner: Provided, That 

(1) * * * the Hawaiian home-loan fund, the Hawaiian 

home-operating fund, and the Hawaiian home-development 

fund shall not be reduced or impaired by any such amendment, whether made in the constitution or in the manner 

16

65 Hawai’i Admission Act, § 4, 73 Stat. at 5. 66 Id. § 5(f), 73 Stat. at 6. 67 Han v. United States, 45 F3d 333 (9th Cir. 1995); Pele Defense Fund v. Paty, 837 P2d 1247 

(Hawai’i, 1992), cert. denied, 507 U.S. 1163 (1996). 

required for State legislation, and the encumbrances authorized to be placed on Hawaiian home lands by officers 

other than those charged with the administration of said 

Act, shall not be increased, except with the consent of the 

United States; (2) that any amendment to increase the 

benefits to lessees of Hawaiian home lands may be made 

in the constitution, or in the manner required for State 

legislation, but the qualifications of lessees shall not be 

changed except with the consent of the United States; and 

(3) that all proceeds and income from ‘‘available lands’’, as 

defined by said Act, shall be used only in carrying out the 

provisions of said Act.65

The lands granted to the State of Hawai’i by subsection 

(b) of this section and public lands retained by the United 

States under subsections (c) and (d) and later conveyed to 

the State under subsection (e), together with the proceeds 

from the sale or other disposition of any such lands and 

the income therefrom, shall be held by said State as a public trust for the support of public schools and other public 

educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian 

Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a 

basis as possible for the making of public improvements, 

and for the provision of lands for public use. Such lands, 

proceeds, and income shall be managed and disposed of for 

one or more of the foregoing purposes in such manner as 

the constitution and laws of said State may provide, and 

their use for any other object shall constitute a breach of 

trust for which suit may be brought by the United 

States.66

These were explicit delegations of Federal authority to be assumed by the new State. They were not discretionary. The language is not permissive. The United States did not absolve itself 

from any further responsibility in the administration or amendment of the Hawaiian Homes Commission Act. Nor did the United 

States divest itself of any ongoing role in overseeing the use of 

ceded lands or the income or proceeds therefrom. Sections 4 and 

5(f) of the Hawai’i Admission Act, quoted above, clearly contemplate a continuing Federal role, as do sections 204 and 223 of 

the Hawaiian Homes Commission Act, which provide that the consent of the Secretary of the Interior must be obtained for certain 

exchanges of trust lands and reserved to Congress the right to 

amend that Act. The Federal and State courts have repeatedly 

noted that the United States retains the authority to bring an enforcement action against the State of Hawai’i for breach of the section 5(f) trust.67 Despite the overthrow and annexation of the Hawaiian nation, Native Hawaiian culture has survived, and the Native Hawaiian people have a unique culture that continues today. 

17

68The State’s motto reflects this concept: ‘‘Ua mau ke ea o ka ’aina i ka pono.’’ (The life of 

the land is perpetuated in righteousness.) Haw. Const. Art. XV, Sec. 5 (1993). 69Kaho’olawe Island: Restoring a Cultural Treasure. Final Report of the Kaho’olawe Island 

Conveyance Commission to the Congress of the United States 2 (March 31, 1993) (‘‘This report 

calls upon the United States government to return to the people of Hawai’i an important part 

of their history and culture, the island of Kaho’olawe. The island is a special place, a sanctuary, 

with a unique history and culture contained in its land, surrounding waters, ancient burial 

places, fishing shrines, and religious monuments’’). Title X of the Fiscal Year 1994 Department 

of Defense Appropriations Act, Pub. L. No. 103–139, 107 Stat. 1418 (1994) was enacted on November 11, 1993, Section 10001(a) of Title X states that the island of Kaho’olawe is among Hawai’i’s historic lands and has a long, documented history of cultural and natural significance 

to the people of Hawai’i. It authorized $400,000,000 to be spent for the clean-up of military ordnance from portions of the island. Id. See Haw. Rev. Stat. Chap. 6K (1993). The state 

Kaho’olawe Island Reserve Commission holds the resources and waters of the island of 

Kaho’olawe in trust until such time as the State of Hawai’i and the federal government recognize a sovereign Hawaiian entity. Id. at § 6K–9. 70See Davianna McGregor, et al., Contemporary Subsistence Fishing Practices Around 

Kaho’olawe: Study Conducted for the NOAA National Marine Sanctuaries Program (May 1997). 

See also Jon K. Matsuoka, et. al., Governor’s Moloka’i Subsistence Task Force Report (1993); 

Andrew Lind, An Island Community: Ecological Succession in Hawai’i 102–03 (1968 ed.). (observing, in 1938, that traditional and customary practices survived in rural ‘‘havens where the 

economy of life to which they are best adapted can survive.’’). Hawaiian homestead tracts provide such rural havens. 71 Haw. Const. Art. XII, Sec. 7 (1978). Hawaiian usage supersedes other sources of common 

law in Hawai’i. Haw. Rev. Stat. 1–1 (1993); Branca v. Makuakane, 13 Haw. 499, 505 (1901) 

(‘‘The common law was not formally adopted until 1893 and then subject to precedents and Hawaiian national usage.’’). See also Haw. Rev. Stat. 7–1 (1993); Kalipi v. Hawaiian Trust Co., 

656 P.2d 745 (Haw. 1982); Pele Defense Fund v. Paty, 837 P.2d 1247 (Haw. 1992) cert. denied, 

507 U.S. 918 (1993); Public Access Shoreline Hawai’i v. Hawai’i County Planning Commission, 

903 P.2d 1246 (Haw. 1995), cert. denied, 517 U.S. 1163 (1996). 72Lilikala Kame’elehiwa, Native Land and Foreign Desires: Pehea La E Pono Ali? 23–33 

(1992). Hawaiian legend traces the ancestry of Hawai’i islands and people to the sky god, 

Wakea, and earth goddess, Papa. Their first-born child, Haloa naka, was stillborn and his small 

body, when buried, became the first taro root. Their second child, Halao, named for the first, 

was the first Hawaiian. 6 A. Fornander, Collection of Hawaiian Antiquities and Folklore 360 

(1920): David Malo, Hawaiian Antiquities 244 (1951). 

Native Hawaiian culture, traditions, political organization, and 

navigation 

Aloha ’Aina (Love of the Land)—Native Hawaiians honored their 

bond with the land (aloha ’aina) by instituting one of the most sophisticated environmental regulatory systems on earth, the kapu 

system. For Hawaiians, the life of the land depended on the righteousness of the people.68 This concept motivated three decades of 

efforts by Hawaiian leaders to regain Kaho’olawe, an island with 

deep spiritual significance. Once a military bombing practice target, Kaho’olawe is now listed in the National Register of Historic 

Places and is the subject of a massive Federal clean-up project.69

Subsistence—Ancient Native Hawaiians supplemented the 

produce of their farms and fishponds by fishing, hunting, and gathering plants. These subsistence activities became increasingly more 

difficult to pursue as changing land ownership patterns barred access to natural resources. Nonetheless, in predominantly Hawaiian 

rural areas such as Hana, Puna, and the island of Moloka’i, Native 

Hawaiians continue to feed their families as their ancestors did before them.70 Hawai’i law has always guaranteed subsistence gathering rights to the people so they may practice native customs and 

traditions.71

Kalo (Taro Cultivation)—In Hawaiian legend, the staple crop of 

kalo (taro) was revered as the older brother of the Hawaiian people.72 Taro cultivation was not only a means of sustenance, but also 

a sacred duty of care to an older sibling. As land tenure changed, 

however, the ancient, stream-irrigated taro paddies (lo’i) were lost 

to newer crops, encroaching development, and the diversion of rivVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
18

73See e.g., Reppun v. Board of Water Supply, 656 P.2d 57 (Haw. 1982) (in this case, taro growers prevailed against water diversions that would have adversely affected their crops), cert. denied, 471 U.S. 1040 (1985). 74See generally E.S. Craighill Handy and Mary Kawena Pukui, The Polynesian Family System in Ka’u (1952); 1 Mary Kawena Pukui, E.W. Haertig & Catherine A. Lee, Nana I Ke Kumu 

49–50 (6th pag. 1983) (explaining Hawaiian concepts of adoption and fostering). 

75 ’Ohana is a concept that has long been recognized by Hawai’i courts. See, e.g., Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1976); Estate of Cunha, 414 P.2d 925–129 (Haw. 1966): Estate of Farrington, 42 Haw. 640, 650–651 (1958); O’Brien v. Walker, 35 Haw. 104,117–36 (1939), 

aff’d., 115 F.2d 956 (9th Cir. 1940), cert. denied, 312 U.S. 707 (1941); Estate of Kamauoha, 26 

Haw. 439, 448 (1922); Estate of Nakuapa, 3 Haw. 342, 342–43 (1872). 76McGregor, supra, at 9. 77 Haw. Rev. Stat. Sec. 6E–43.5 (1993). This provision requires consultation with appropriate 

Native Hawaiian organizations, like Hui Malama I Na Kupuna O Hawai’i Nei. 

ers and streams.73 In recent years, Native Hawaiians have reclaimed and restored ancient taro fields, and formed a statewide 

association of native planters, ’Onipa’a Na Hui Kalo. ’Ohana (Extended Family)—In the earliest era of Hawaiian settlement, governance was a function of the family.74 For Native Hawaiians, family included blood relatives, beloved friends (hoaloha) 

and informally adopted children (hanai).75 Family genealogies were 

sacred, and passed down in the form of oral chants only to specially 

chosen children—when those children were barred from learning 

their language, many of these ancient genealogies were lost. Nevertheless, family traditions of respect for elders, mutual support for 

kin and the adoption of related children have continued over the 

past two centuries. 

The ’ohana beliefs, customs, and practices predated the ali’i; coexisted under the rule of the ali’i; and have continued to be practiced, honored and transmitted to the present. The ’ohana continued to honor their ’aumakua (ancestral deities). Traditional kahuna 

la’au lapa ’au (herbal healers) continue their healing practices 

using native Hawaiian plants and spiritual healing arts. Family 

burial caves and lava tubes continue to be cared for. The hula and 

chants continue to be taught, in distinctly private ways, through 

’ohana lines.76 Today, there is an extensive and growing network 

of reclaimed family genealogies, one of which is formally maintained by the Office of Hawaiian Affairs (Operation ’Ohana). Huge 

Hawaiian family reunions are routinely held throughout the islands, in every week of the year. In honor of a cultural tradition 

that reveres the taro root as the older brother of the Hawaiian 

race, these modern activities are called ‘‘ho’i kou i ka mole,’’ or ‘‘return to the tap-root.’’ ’Iwi (Bones)—In Hawaiian culture, the remains of the deceased 

carried the mana (spiritual power) of the decedent. These remains 

were treated with great reverence, and fearful consequences were 

sure to befall any who desecrated them. The protection of the bones 

of their ancestors remains a solemn responsibility for modern day 

Native Hawaiians. The State of Hawai’i has recognized the importance of protecting Native Hawaiian burial sites, and has established a Hawaiian Burial Council to ensure the ’iwi of Hawaiian 

ancestors are treated with proper respect.77

Wahi Kapu (Sacred Places)—Ancient Hawaiians also recognized 

certain places as sacred, and took extraordinary measures to prevent their desecration. A contemporary example of this concept is 

found at Mauna ’Ala on the island of O’ahu, where the remains of 

Hawai’i’s ah’i (monarchs) are interred. This royal mausoleum is 

cared for by a kahu (guardian), who is the lineal descendant of the 

19

78Ka’u: University of Hawai’i Hawaiian Studies Task Force Report, 23 (Dec. 1986). These 

anti-Hawaiian language efforts were falsely cast in terms of assimilation and societal unity. 

Nevertheless, the core issues of sovereignty and self-determination remained for, ‘‘to destroy the 

language of a group is to destroy its culture.’’ Adeno Addis, Individualism, Communitarianism, 

and the Rights of Ethnic Minorities, 66 Notre Dame L. Rev. 1219, 1270 (1991). 79 Revised Laws of Hawai’i § 2, at 156 (1905). As a direct result of this law, the number of 

schools conducted in Hawaiian dropped from 150 in 1880 to zero in 1902. Albert J. Schu ̈tz, The 

Voices of Eden: A History of Hawaiian Language Studies 352 (1994). Hawaiian language newspapers, which were the primary medium for communication in Hawai’i at that time, declined 

from a total of twelve (nine secular and three religious) in 1910 to one religious newspaper in 

1948. Id. at 362–63. 80Larry K. Kimura and William Wilson, 1 Native Hawaiians Study Commission Minority Report, 196 (U.S. Dept. of Interior 1983). See also Davianna McGregor-Alegado, Hawaiians: Organizing in the 1970s. 7 Amerasia Journal 29, 33 (1980) (‘‘Through a systematic process of assimilation in the schools, especially restricting the use of the native language, Hawaiians were 

taught to be ashamed of their cultural heritage and feel inferior to the haole American elite 

in Hawai’i.’’). 81 ‘‘[T]he renewal of interest in the Hawaiian language and culture in the 1970s did not relight 

an extinguished flame, but fanned and fed the embers[.]’’ Schu ̈tz, supra, at 361. 82 Haw. Const. Art. XV, sec 4 (1978). See also Haw. Const. Art. X, sec. 4 (1978) (requiring 

the State to ‘‘promote the study of Hawaiian culture, history and language [through] a Hawaiian 

education program * * * in the public schools.’’) Restrictions on the use of Hawaiian language 

in public schools were not actually lifted until 1986. See Haw. Rev. Stat. Sec. 298–2(b) (1993). 83 Native Hawaiian Education Act, Pub. L. No. 103–382, Sec. 101, 108 Stat. 3518 (Oct. 20, 

1994). 84Office of Hawaiian Affairs, Native Hawaiian Data Book 244–45 (1998) (Table/Figure 4.22). 

Projected enrollment for the 2005–2006 school year is 3,397. Id. Dramatic increases in the enrollment of Hawaiians at the University of Hawai’i took place shortly after adoption of the 1978 

Constitutional Amendments and again after statutory restrictions were lifted in 1986 on use of 

the Hawaiian language in schools. Id. at 216–17 (Table/Figure 4.7). According to the 1990 Census, Hawaiian is spoken in 8,872 households. Id. at 240–41 (Table/Figure 4.20). 85Karen Silva, Hawaiian Chant: Dynamic Cultural Link or Atrophied Relic?, 98 Journal of 

the Polynesian Society 85, 86–87 (1989), cited in Schu ̈tz, supra note 27, at 357. 86See generally Victoria Shook, Ho’oponopono, Contemporary Uses of a Hawaiian ProblemSolving Process (1985). 

family charged since antiquity with protecting the bones of this line 

of chiefs. 

’Olelo Hawai’i (Hawaiian Language)—‘‘I ka ’olelo no ke ola; i ka 

’olelo no ka make. With language rests life, with language rests 

death.’’ 78 The Hawaiian language was banned from the schools in 

1896.79 During the time of the Republic and the territorial period, 

the speaking of the Native Hawaiian language was strictly forbidden anywhere within school yards or buildings, and physical punishment for using it could be harsh. Teachers who were native 

speakers of Hawaiian (many were in the first three decades of the 

Territory) were threatened with dismissal for using Hawaiian in 

school. Some were even a bit leery of using Hawaiian place names 

in class. Teachers were sent to Hawaiian-speaking homes to reprimand parents for speaking Hawaiian to their children.80 The language was kept alive in rural Hawaiian families and in the mele 

oli (songs and chants) of native speakers.81

In 1978, the Hawai’i state Constitution was amended to make 

Hawaiian one of the two official languages of the State.82 In the 

past twenty-five years, Hawaiian language has become a required 

offering in the State Department of Education curriculum, and private non-profit Hawaiian language schools have been established 

in all major islands with the assistance of Federal funds.83 In 

1997–1998, 1,351 students were enrolled in fourteen Hawaiian language immersion programs throughout the State, from pre-school 

through high school.84 Hawaiian remains the first language of the 

Native Hawaiian community located on the isolated island of 

Ni’ihau, which was spared the effects of the 1896 ban.85

Ho’oponopono (Conflict Resolution) 86—This ancient Hawaiian 

tradition of conflict resolution resembles the western practice of 

20

87 Hui Kalai’aina, a Hawaiian political organization, lobbied for the replacement of the 1887 

Bayonet Constitution, and led mass, peaceful protests that stalled negotiations for a new Treaty 

of Reciprocity. 3 Kuykendall, supra, at 448; Noenoe Silva, Kanaka Maoli Resistance to Annexation, 1 O’iwi: A Native Hawaiian Journal 45 (1998); see also Silva, Kanaka Maoli Resistance, 

supra at 158–63 (activities of Hui Kalai’aina), and at 184–206 (opposition to annexation). 88Davianna Pomaika’i McGregor, ’Aina Ho’opulapula: Hawaiian Homesteading, 24 The Hawaiian Journal of History 1, 4–5 (1990). 89 Isabella Aiona Abbott, La’au Hawai’i: Traditional Uses of Hawaiian Plants 135 (1992); Nanette L. Kapulani Mossman Judd, La’au Lapa’au: Herbal Healing Among Contemporary Hawaiian Healers, 5 Pacific Health Dialog Journal of Community Mental Health and Clinical Medicine 

for the Pacific: The Health of Native Hawaiians 239–45 (1998). 90These traditional methods of healing are recognized and financed through appropriations 

under the Native Hawaiian Health Care Improvement Act of 1988, Pub. L. No. 100–579, 102 

Stat. 2916 (now codified at 42 U.S.C. §§ 11701e et seq.). 91Pub. L. No. 100–579, 102 Stat. 2916 (now codified at 42 U.S.C. Sec. 11701e, et seq.). 92 ‘‘[A] few chanters, dancers, and teachers among the po’e hula [hula people] kept alive the 

more traditional forms, and with the flowering of the ‘Hawaiian Renaissance’ in the 1970’s their 

knowledge and dedication became a foundation for revitalizing older forms.’’ Dorothy B. Barrere, 

Mary Kawena Pukui & Marion Kelly, Hula Historical Perspectives 1–2 (1980). Hula was recently designated the state dance. Act 83, Relating To Hula (June 22, 1999) (codified at Haw. 

Rev. Stat. 5–21). 

mediation, but with the addition of a deeply spiritual component. 

It was and is traditionally practiced within families, and used to 

resolve disputes, cure illnesses, and reestablish connections between family members and their akua (gods). Today, trained practitioners are formally teaching the ho’oponopono methods, and 

there has been a resurgence of its use. The State courts have implemented a formal ho’oponopono program that is designed to help 

families to resolve their problems outside the courtroom. 

Civic Associations—Prior to Annexation, Native Hawaiians were 

active participants in the political life of the Islands. Political associations were organized to protest against the Bayonet Constitution 

of 1887 and subsequent annexation efforts.87 Hawaiian Civic Clubs 

were established at the turn of the century to campaign against the 

destitute and unsanitary living conditions of Hawaiians in the city 

of Honolulu and its outskirts.88 These associations still exist, and 

count among their membership many of Hawai’i’s most distinguished native leaders. In addition, Hawaiians living on Hawaiian 

Home Lands have, from the program’s beginning in 1921, established homestead associations that are increasingly assuming responsibilities for the provision of governmental services to homestead areas. 

La’au Lapa’au (Hawaiian Healing)—Quietly practiced over the 

past two centuries following European contact, Native Hawaiian 

medicine has always been an important alternative to western 

medical care. Today it is a credible form of treatment for many.89

Practitioners use Hawaiian medicinal plants (la’au), massage 

(lomilomi), and spiritual counseling to heal. Hawaiian health centers established with Federal financial support 90 now incorporate 

traditional Hawaiian healing methods into their regimen of care. 

These traditional methods of healing are recognized and financed 

through appropriations under the Native Hawaiian Health Care 

Improvement Act of 1988.91

Halau Hula (Hula Academies)—Once banned by missionaries as 

sacrilege, the ancient art of hula 92 accompanied by chanting in the 

native tongue, flourishes today. Halau exist throughout the islands, 

and hula and chants are now regularly incorporated into public 

ceremonies. 

Voyaging/Celestial Navigation—Ancient Hawaiians were skilled 

navigators, finding their way thousands of miles across the open 

21

93 Ben Finney, Voyage of Rediscovery: A Cultural Odyssey through Polynesia (1995). In 1995, 

the Hokule’a and Hawai’iloa sailed to the Marquesas Islands. PBS recently broadcast an hourlong documentary of this voyage entitled Wayfinders—A Pacific Odyssey. See http://pbs.org/

wayfinders. 94 Hokule’a left Hawai’i on June 15, 1999 for Rapa Nui (Easter Island). 

Pacific using only the stars and the currents as guides. In the 

1970’s, a group of Native Hawaiians formed the Polynesian 

Voyaging Society. The Society researched Polynesian canoe-making 

and navigating traditions, and commissioned the construction of an 

historically authentic double-hulled voyaging canoe, the Hokule’a

(Star of Gladness). A Native Hawaiian crew was trained to sail the 

canoe, and a Native Hawaiian navigator was chosen to learn the 

art of celestial navigation from one of its few remaining Polynesian 

practitioners. The canoe’s first voyage to Tahiti in 1976 confirmed 

the sophisticated navigational skills of ancient Polynesians and 

also instilled a sense of pride in Hawaiian culture.93 Other canoes 

have been built, and more voyages made since.94 The art of 

voyaging is alive and well in modern Hawai’i, a testament to the 

skill and courage of the ancient navigators who first settled the 

Hawaiian islands. 

Native Hawaiians today live in a markedly different world from 

the one that shaped their ancient practices. Yet they struggle to 

perpetuate a culture passed down to them through two millennia. 

FEDERAL ACTIONS WITHIN THE CONTEXT OF FEDERAL INDIAN POLICY

The two most significant actions of the United States as they relate to the native people of Hawai’i must be understood in the context of the Federal policy towards America’s other indigenous, native people at the time of those actions. 

In 1921, when the Hawaiian Homes Commission Act was enacted 

into law, the prevailing Federal Indian policy was premised upon 

the objective of breaking up Indian reservations and allotting lands 

to individual Indians. Those reservation lands remaining after the 

allotment of lands to individual Indians were opened up to settlement by non-Indians, and significant incentives were authorized to 

make the settlement of former reservation lands attractive to nonIndian settlers. Indians were not to be declared citizens of the 

United States until 1924, and it was typical that a twenty-year restraint on the alienation of allotted lands was imposed. This restraint prevented the lands from being subject to taxation by the 

states, but the restraint on alienation could be lifted if an individual Indian was deemed to have become ‘‘civilized.’’ However, 

once the restraint on alienation was lifted and individual Indian 

lands became subject to taxation, Indians who did not have the 

wherewithal to pay the taxes on the land, found their lands seized 

and put up for sale. 

This allotment era of Federal policy was responsible for the 

alienation of nearly half of all Indian lands nationwide—hundreds 

of millions of acres of lands were no longer in native ownership, 

and hundreds of thousands of Indian people were rendered not only 

landless but homeless. The primary objective of the allotment of 

lands to individual Indians was to ‘‘civilize’’ the native people. The 

fact that the United States thought to impose a similar scheme on 

the native people of Hawai’i in an effort to ‘‘rehabilitate a dying 

22

95 ‘‘The power of the general government over these remnants of a race once powerful, now 

weak and diminished in numbers, is necessary to their protection. As well as to the safety of 

those among whom they dwell. It must exist in that government, because it never has existed 

anywhere else, because the theater of its exercise is within the geographical limits of the United 

States * * * From their very weakness and helplessness, so largely due to the course of dealing 

of the Federal government with them, and the treaties in which it has been promised, there 

arises a duty of protection, and with it the power. This has always been recognized by the executive, and by congress, and by this court, whenever the question has arisen.’’ United States v. Kagama, 118 U.S. 375 (1886). 96Morton v. Mancari, 427 U.S. 535 (1974). 97Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); United States v. Sioux Nation, 448 U.S. 371 (1980). The rulings of the Supreme Court make clear that neither the conferring of citizenship upon the native people, the allotment of their lands, the lifting of restrictions 

on alienation of native land, the dissolution of a tribe, the emancipation of individual native people, the fact that a group of natives may be only a remnant of a tribe, the lack of continuous 

Federal supervision over the Indians, nor the separation of individual Indians from their tribes 

would divest the Congress of its constitutional authority to address the conditions of the native 

people. Cherokee Nation v. Hitchock, 187 U.S. 294 (1902); United States v. Celestine, 215 U.S. 

278 (1909); Tiger v. Western Inv. Co., 221 U.S. 286 (1911); United States v. Nice, 241 U.S. 591 

(1916); Chippewa Indians v. United States, 307 U.S. 1 (1939); Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); United States v. John, 437 U.S. 634 (1979). 98 United States v. Sandoval, 231 U.S. 28 (1913). 

race’’ is thus readily understandable in the context of the prevailing Federal Indian policy in 1921. 

In 1959, when the State of Hawai’i was admitted into the Union, 

the Federal policy toward the native peoples of America was designed to divest the Federal government of its responsibilities for 

the indigenous people and to delegate those responsibilities to the 

several states. A prime example of this Federal policy was the enactment of Public Law 83–280, an Act which vested criminal jurisdiction and certain aspects of civil jurisdiction over Indian lands to 

certain states. In similar fashion, in 1959, the United States transferred most of its responsibilities related to the administration of 

the Hawaiian Homes Commission Act to the new State of Hawai’i, 

and in addition, imposed a public trust upon the lands that were 

ceded back to the State for five purposes, one of which was the betterment of conditions of Native Hawaiians. 

CONSTITUTIONAL SOURCE OF CONGRESSIONAL AUTHORITY

The United States Supreme Court has so often addressed the 

scope of Congress’ constitutional authority to address the conditions of the native people that it is now well-established.95 Although the authority has been characterized as ‘‘plenary,’’ 96 the 

Supreme Court has addressed the broad scope of the Congress’ authority.97 It has been held to encompass not only the native people 

within the original territory of the thirteen states but also lands 

that have been subsequently acquired.98

The ensuing course of dealings with the indigenous people has 

varied from group to group, and thus, the only general principles 

that apply to relations with the first inhabitants of this nation is 

that they were dispossessed of their lands, often but not always relocated to other lands set aside for their benefit, and that their subsistence rights to hunt, fish, and gather have been recognized 

under treaties and laws, but not always protected nor preserved. 

It is likely that no other group of people in America has been singled out so frequently for special treatment, unique legislation, and 

distinct expressions of Federal policy. Although the relationship between the United States and its native people is not a history that 

can be said to have followed a fixed course, it is undeniably a history that reveals the special status of the indigenous people of this 

23

99The Records of the Federal Convention of 1787, Volume II, Journal Entry of August 18, 

1787, p. 321. 100The Records of the Federal Convention of 1787, Volume II, Journal Entry of August 22, 

1787, p. 367. 101 In his letter to James Monroe of November 27, 1784, James Madison observes, ‘‘The 

foederal articles give Congs, the exclusive right of managing all affairs with the Indians not 

members of any State, under a proviso, that the Legislative authority, of the State within its 

own limits be not violated. By Indian[s] not members of a State, must be meant those, I conceive 

who do not live within the body of the Society, or whose Persons or property form no objects 

of its laws. In the case of Indians of this description the only restraint on Congress is imposed 

by the Legislative authority of the State.’’ The Founders’ Constitution, Volume Two, Preamble 

through Article 1, Section 8, Clause 4, p. 529, James Madison to James Monroe, 27 Nov. 1784, 

Papers 8:156–57; See also, James Monroe to James Madison, 15 Nov. 1784, Madison Papers 

8:140. 102The term ‘‘aborigines’’ is defined as ‘‘the earliest inhabitants of a country, those of whom 

no original is to be traced,’’ and the term ‘‘tribe’’ is defined as ‘‘a distinct body of the people 

as divided by family or fortune, or any other characteristic.’’ A Dictionary of the English Language (Samuel Johnson ed., 1755). The annotations accompanying the term ‘‘Indian’’ in the 1901 

Oxford dictionary indicates the use of the term as far back as 1553. Oxford English Dictionary 

(James A.H. Murray ed., 1901). 

land. American laws recognize that the native people do not trace 

their lineage to common ancestors and, from time to time, our laws 

have in fact discouraged the indigenous people from organizing 

themselves as ‘‘tribes.’’ But this much is true—that for the most 

part, at any particular time in our history, the laws of the United 

States have attempted to treat the native people, regardless of 

their genealogical origins and their political organization, in a consistent manner.

Organization as a tribe and the scope of constitutional authority 

It has been suggested that the scope of constitutional authority 

vested in the Congress is constrained by the manner in which the 

native people organize themselves. Under this theory, if the native 

people are not organized as tribes, then the Congress lacks the authority to enact laws and the President is without authority to establish policies affecting the native people of the United States. 

However, the original language proposed for inclusion in the Constitution made no reference to ‘‘tribes’’ but instead proposed that 

the Congress be vested with the authority ‘‘to regulate affairs with 

the Indians as well within as without the limits of the United 

States.’’ 99 A further refinement suggested that the language read ‘‘and with Indians, within the Limits of any State, not ‘subject to 

the laws thereof[.]’’ 100

The exchanges of correspondence between James Monroe and 

James Madison concerning the construction of what was to become 

Article I, Section 8, Clause 3 of the Constitution make no reference 

to Indian tribes, but they do discuss Indians.101 Nor is the term ‘‘Indian tribe’’ found in any dictionaries of the late eighteenth century, although the terms ‘‘aborigines’’ and ‘‘tribe’’ are defined.102

Native Hawaiians and the meaning of ‘‘Indian’’

Whether the reference was to ‘‘aborigines’’ or to ‘‘Indians’’, the 

Framers of the Constitution did not import a meaning to those 

terms as a limitation upon the authority of Congress, but as descriptions of the native people who occupied and possessed the 

lands that were later to become the United States—whether those 

lands lay within the boundaries of the original thirteen colonies, or 

any subsequently acquired territories. This construction is consistent with more than two hundred Federal statutes which establish that the aboriginal inhabitants of America are a class of people 

24

known as ‘‘Native Americans’’ and that this class includes three 

groups—American Indians, Alaska Natives and Native Hawaiians. 

The unique native peoples of Alaska have been recognized as ‘‘Indian’’ and as ‘‘tribes’’ for four hundred years. The Founders’ understanding of the ‘‘Eskimaux’’ as Indian tribes, and Congress’ recognition of its power over Alaska Natives ever since the passage of the 

Fourteenth Amendment and the acquisition of the Alaskan territory, help illuminate Congress’ power over, and responsibility for, 

all Native American peoples. 

The treatment of Alaskan Eskimos is particularly instructive because the Eskimo peoples are linguistically, culturally, and ancestrally distinct from other American ‘‘Indians.’’ Many modern scholars do not use the word ‘‘Indian’’ to describe Eskimos or the word 

‘‘tribe’’ to describe their nomadic family groups and villages. The 

Framers, however, recognized no such technical distinctions. In the 

common understanding of the time, Eskimos, like Native Hawaiians, were aboriginal peoples; they were therefore ‘‘Indians.’’ Their 

separate communities of kind and kin were ‘‘tribes.’’ Congress’s 

special power over these aboriginal peoples is beyond serious challenge. 

During the Founding Era, and during the Constitutional Convention, the terms ‘‘Indian’’ and ‘‘tribe’’ were used to encompass the 

tremendous diversity of aboriginal peoples of the New World and 

the wide range of their social and political organizations. The 

Founding generation knew and dealt with Indian tribes living in 

small, familial clans and in large, confederated empires. Native 

Alaska villages and Native Hawaiians residing in their aboriginal 

lands (i.e., the small islands that comprise the State of Hawai’i) are 

‘‘Indian Tribes’’ as that phrase was used by the Founders. The 

Framers drafted the Constitution not to limit Congress’ power over 

Indians, but to make clear the supremacy of Congress’ power over 

Indian affairs. The Congress has exercised the power to promote 

the welfare of all Native American peoples, and to foster the everevolving means and methods of self-governance as exercised by Native people. 

This history is accurately reflected in nearly two centuries of 

U.S. Supreme Court jurisprudence. Beginning with Chief Justice 

Marshall, the Supreme Court has recognized the power of the 

United States to provide for the welfare, and to promote the selfgovemance, of Indian peoples. This recognition of the right of the 

indigenous, native people of the United States to self-determination 

and self-governance is part of the structure of America’s complex 

multi-sovereign system of governance. 

In the language and understanding of the Founders, ‘‘tribes’’ or 

‘‘peoples’’ did not lose their identity as such when conquered or 

ruled by kings. Like other Native American people, Native Hawaiians lived for thousands of years as ‘‘tribes,’’ then as confederations 

of tribes, now as conquered tribes. All aboriginal peoples of the 

New World were ‘‘Indians.’’ That is what it meant to be an ‘‘Indian.’’ The Founders knew that Columbus had not landed in India 

or the Indies; Columbus’s navigational error had been corrected, 

but his malapropism had survived. And so, in the words of one of 

the earliest English books about America, the native people were 

25

103Gonzalo Fernandez de Oviego y Valdez, De la natural hystoria de las Indas (1526), trans. 

by R. Eden (1955), in E. Arber, ed., The First Three English Books on America (Birmingham, 

Eng., 1885) (emphasis added). 104 A.M. Joseph, Jr., The Indian Heritage of America 40 (rev. ed.1991). 105 Id.; Letter, Jefferson to Adams, June 11, 1812 (discussing a popular book arguing ‘‘all the 

Indians of America to be descended from the Jews * * * and that they all spoke Hebrew’’), in 

Jefferson, Writings (Library of America, 1984), 1261; Bernal Diaz, The Conquest of New Spain 

26 (1568) (J.M. Cohen, tr., 1963) (Objects at Indian site attributed ‘‘to the Jews who were exiled 

by Titus and Vespasian and sent overseas’’). 106 Jefferson, Notes on the State of Virginia (1787), in Jefferson, Writings, at 226. Jefferson’s Notes—which had circulated among several of the Founders for years before the Constitutional 

Convention—were written in 1781, published in February 1787 and appeared in newspapers 

during the Convention. Barlow to Jefferson, June 15, 1787, in Papers of Thomas Jefferson 

(Boyd, ed.), 11:473 (‘‘Your Notes on Virginia are getting into the Gazetts in different States’’); 

see also, e.g., id. at 8:147, 9:38, 517, 12:136 (Madison’s copy); id. at 10:464, 15:11 (Rutledge’s comments on); id. at 8:160, 164 (Adams comments on); id. at 8:147, 229, 245 (Monroe’s copy); 

id. at 21:392–93 (citations re circulation of Notes). 107 Jefferson, Notes, at 226. 108 Joseph, supra, at 57; see also Oxford English Dictionary (1st ed.) (‘‘OED’’), ‘‘Indian’’ (‘‘The 

Eskimos * * * are usually excluded from the term * * *’’). 

‘‘Indians,’’ for the simple reason that ‘‘so caule wee all nations of 

the new founde lands.’’ 103

The earliest explorers of the New World encountered an extraordinary diversity of aboriginal peoples—from the elaborate Aztec 

and Inca civilizations of the South to the nomadic ‘‘Esquimaux’’ of 

the North. These early experiences and the contemporary fascination with these diverse cultures informed the concept of ‘‘Indians’’ in the colonial era. 

There was no understanding in the founding generation that Indians constituted a distinct or separate race. Indians were often assumed by the European settlers to be peoples like themselves. Before the development of modern dating methods that established 

beyond doubt the great antiquity of early man in America, it was 

believed that the Indians were offshoots of known civilizations of 

the Old World. Some scholars argued that they came from Egypt, 

others that they had broken away from the Chinese, and still others that they were descendants of Phoenician or Greek seamen. Another belief, more legend than theory, held that various lightskinned tribes possessed the blood of Welshmen who had come to 

America in the remote past.104 Others theorized the Indians were 

the ‘‘lost tribes’’ of Israel.105

In his popular, ‘‘Notes on the State of Virginia’’, Thomas Jefferson accepted the plausibility of the popular notion that the Indians 

had migrated to America from Europe via ‘‘the imperfect navigation of ancient times.’’ 106 Jefferson noted, however, that Cook’s 

voyage through the Bering Strait suggested that all the ‘‘Indians 

of America’’ except the ‘‘Eskimaux’’ migrated from Asia. Jefferson 

theorized that the Eskimos had come to America via Greenland 

from ‘‘the northern parts of the old continent,’’ i.e., Northern Europe.107

Modern scholars might be ‘‘puzzled whether they [Eskimos] were 

Indians, or a separate and somewhat mysteriously distinct people 

on earth.’’ 108 Others might question whether the native people of 

Hawai’i are ‘‘Indians.’’ Efforts to draw such distinctions would 

themselves have puzzled the Founding generation. The ‘‘Indians’’

were many peoples, with distinct languages, cultures and socio-political organizations. They had diverse origins: perhaps Asia, perhaps Europe, perhaps the lands of the Bible. But from wherever 

they came, and whatever their distinct cultures and governments, 

they were all ‘‘Indians,’’ for they were aboriginal inhabitants of the 

26

109Gavan Daws, Shoal of Time, A History of the Hawaiian Islands 2, 19, 23, 52 (1968) (Cook ‘‘spent several years among the savages of the Pacific, ‘Indians,’ as he and everyone else called 

them.’’). Multiple references in logs and diaries of Captain Cook and his officers refer to the indigenous people they found in the Hawaiian Islands as ‘‘Indians.’’ For example, Cook wrote that 

his first mate ‘‘attempted to land but was prevented by the Indians coming down to the boat 

in great numbers.’’ J.C. Beaglehole, The Journal of Captain James Cook on His Voyages of Discovery 111267 (1967). David Samwell, the surgeon on Cook’s flagship Discovery, wrote, ‘‘The Indians opened and made a lane for the Marines to pass.’’ Id. at 1161. 110 Robert F. Berkhofer, Jr., The White Man’s Indian 16 (1979). 111 Jefferson, Notes, at 221. 112See, e.g., Treaty with the Six Nations, Oct. 22, 1784 (treaty with the many tribes of Senecas, Mohawks, Onondagas, Cayugas, Oneida and Tuscarora), in C.J. Kappler, ed., Indian Affairs: Laws and Treaties 2:5–6; Treaty of Treaty of Forth McIntosh, Jan. 21, 1785 (treaty with 

the Wiandot, Delaware, Chippewa, and Ottawa ‘‘and all their tribes’’), in id. at 2:6–8; Treaty 

of Hopewell, Nov. 28, 1785 (treaty with all the ‘‘tribes’’ of the Cherokee), in id. at 2:8–11. 

New World. The Founding generation had no difficulty thinking of 

Eskimos as ‘‘Indians.’’ They would have had no more difficulty 

treating as ‘‘Indians’’ native peoples whose origins lay a thousand 

years ago in the South Pacific. Indeed, as one historian reports, 

Captain James Cook, the English ‘‘discoverer’’ of the Hawaiian islands and a contemporary of the Founders, referred to the inhabitants of the Hawaiian Islands as ‘‘Indians.’’ 109 As far as the 

Founders knew, all the ‘‘aboriginal inhabitants’’ of the New World 

came from the South Pacific via the ‘‘imperfect navigation of ancient times.’’

The Founding generation used ‘‘tribes’’ to denote peoples of like 

kind or kin. As used in the Constitution, the word ‘‘tribe’’ does not 

refer to some specific type of government or social organization. All 

Native American peoples were ‘‘tribes,’’ whether they lived in villages or spread out in vast federations or empires. ‘‘Tribe’’ and ‘‘nation’’ were used to refer not to governments, but to groups of people 

recognizing a common membership or identity as such. Application 

of the biblical concept of ‘‘tribes’’ to the ‘‘Indians’’ reflected the understanding that the natives of the New World were not one people, but many ‘‘peoples,’’ ‘‘nations,’’ or ‘‘tribes’’—terms used interchangeably well into the Nineteenth Century.110

The Founders had seen analogies to the complex tribal history of 

the Bible. The Founders knew the native peoples evolved, united 

and divided in ever shifting-forms of government. The native peoples had formed ‘‘powerful confederac[ies],’’ tribes united under 

common chiefs, and federations of tribes joined with other federations.111 The colonies and the States under the Articles of Confederation had repeatedly dealt with vast federations of tribes, including the ‘‘Six Nations’’ in the north and the ‘‘Five Civilized Tribes’’

in the south.112 The Indian peoples were ‘‘tribes’’ not because they 

formed any particular organization, but because they recognized 

themselves as distinct peoples, with cultures, languages and societies separate from each other and from the European invaders. 

As Jefferson’s ‘‘Notes on the State of Virginia’’ and other contemporary works show, the division of the world into ‘‘European settlers’’ and ‘‘Indians’’ was not essentially racial. The Indians were 

not a race, they were many peoples, thought to share diverse ancestry with peoples all over the world. The distinction between European and Native American peoples was political. The European 

settlers (who arrived with Royal charters) recognized the ‘‘aboriginal peoples’’ as separate nations—separate sovereigns with whom 

they would have to deal as one nation to another. Before and after 

the Constitution, the new settlers treated the Indian peoples as 

27

113 Articles of Confederation, Art. X, March 1, 1778. 114Federalist 42, in XIV Documentary History of the Ratification of the Constitution (J. 

Kaminiski, ed., 1983) (‘‘Documentary History’’), XV:431. 115 ‘‘Notes of James Madison,’’ June 19, 1787, in The Records of the Federal Convention of 

1787, at 3:316 (Max Farrand, rev. ed. 1966) [hereafter, ‘‘Federal Convention’’] (‘‘By the federal 

articles, transactions with the Indians appertain to Congress. Yet in several instances, the 

States have entered into treaties & wars with them’’); see also, id. at 325–26. 116 2 Federal Convention, at 321, 324; see also id. at 143 (Rutledge noted that ‘‘Indian affairs’’ should be added to Congress’ powers). 

separate nations, with whom they made war, peace and treaties. 

The treatment of the aboriginal peoples under the Constitution was 

systematically and structurally distinct from the inhumane and 

unendurable treatment accorded to ‘‘slaves.’’ This distinctive nation-to-nation relationship survived the settlement of the West, the 

Civil War Amendments to the Constitution, and two hundred years 

of Congressional action and judicial construction. 

History of the origins of the constitutional term ‘‘Tribe’’

The Articles of Confederation gave the Continental Congress 

power over relations with the Indians only so long as Congress’ dealings with Indians within a State did not ‘‘infringe’’ that State’s 

legislative power. This created constant friction over where the 

States’ power ended and Congress’ power began. The sole stated 

purpose of the Indian terms of the new Constitution was to eliminate any uncertainty as to Congress’ supremacy. The Framers intended to grant Congress broad, supreme authority to regulate Indian affairs. The two references to ‘‘Indians’’ in the Constitution 

generated virtually no debate at any time in the Constitutional 

Convention. That relations with the Indians should be one of the 

Federal powers appears to have been universally accepted. The 

Framers sought only to make clear that Congress’ power here was 

supreme. 

The Articles had given the Continental Congress ‘‘sole and exclusive right and power’’ of regulating relations with Indians who 

were ‘‘not members of any of the states, provided that the legislative right of any state within its own limits be not infringed or violated.’’ 113 As Madison explained, this language created two major 

problems. First, no one knew when or whether Indians were ‘‘members of states’’; second, the grant to Congress of ‘‘sole and exclusive 

power,’’ so long as Congress did not ‘‘intrud[e] on the internal 

right’’ of States was ‘‘utterly incomprehensible.’’ The provision had 

been a source of ‘‘frequent perplexity and contention in the federal 

councils.’’ 114 Capitalizing on the uncertainty, several states (Georgia, New York and North Carolina) had infringed Congress’ power 

by making their own arrangements with local Indians. As a result, 

during the Constitutional Convention and Ratification, Georgia was 

in armed conflict, and on the verge of war, with the powerful Creek 

Nation. 

The only debate on the issue in the Convention focused on the 

need for federal supremacy over the states. Madison objected early 

on to the ‘‘New Jersey Plan’’ on the ground that it failed to bar 

states from encroaching on Congress’ power over ‘‘transactions with 

the Indians.’’ 115 In August, Madison proposed that Congress be 

given the power ‘‘[t]o regulate affairs with the Indians as well within as without the limits of the United States.’’ 116 Madison’s proposal was submitted to the Committee on Detail without discussion. The Committee on Detail recommended that power over IndiVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00027 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
28

117 Id. at 367. Similarly, since Indians did not pay tax, the proposal to exclude ‘‘Indians not 

taxed’’ from the apportionment clause was accepted without discussion. 118 Id. at 481. 119 Id. at 493, 496–97, 503 (emphasis added). 120See id. at 495. The language appears in the final version. Id at 569, 595. 121Federalist 40, in Documentary History, XV: 406 (Constitution represents ‘‘expansion on the 

principles which are found in the articles of confederation,’’ which gave Congress power over ‘‘trade with the Indians’’); Federal Farmer, October 8, 1787, in id. at XIV: 24 (under the new 

Constitution, federal government has power over ‘‘all foreign concerns, causes arising on the 

seas, to commerce, imports, armies, navies, Indian affairs’’); Federal Farmer, October 10, 1787, 

in id. at 30, 35 (federal power over ‘‘foreign concerns, commerce, impost, all causes arising on 

the seas, peace and war, and Indian affairs’’). The Federal Farmer Letters are considered ‘‘one of the most significant publications of the ratification debate.’’ Id. at 14. 122Madison, Federalist 42, in Documentary History XIV: 430–31. 123 ‘‘An Act to regulate trade and intercourse with the Indian tribes,’’ July 22, 1790, ch. 33, 

Sec. 4, 1 Stat. 137, in 1 Doc. Hist. of the First Federal Congress, 1789–1791 (De Pauw, ed., 

1972) (‘‘First Federal Congress’’), at 440. 124Madison, Federalist 40, in Documentary History, XV: 406. 

ans be dealt with in the Commerce clause, which would provide 

Congress with power over commerce ‘‘with the Indians, within the 

limits of any State, not subject to the laws thereof.’’ The proposal 

provoked no debate.117 On August 31 st, the Convention referred 

various ‘‘parts of the Constitution’’ (including the Commerce 

Clause) to a ‘‘Committee of eleven,’’ including Madison.118 Without 

recorded discussion, the Committee recommended that the language be simplified to commerce ‘‘with the Indian tribes.’’ 119 The 

Convention accepted the recommendation without debate or dissent.120

As noted above, the debate in the Convention focused solely on 

making clear the supremacy of Congress’ power. During the ratification debates, the new Constitution was defended on the ground 

that it gave Congress power over ‘‘Indian affairs’’ and ‘‘trade with 

the Indians.’’ 121 In the only extended discussion of the issue during 

ratification, Madison used the phrases ‘‘commerce with the Indian 

tribes’’ and ‘‘trade with Indians’’ interchangeably, explaining that 

the purpose of the new provision was to eliminate the limitation on 

Congress’ power over trade with the Indians living within the 

States.122 The notion that the reference to ‘‘tribes’’ was a limit on 

Congress’ ability to deal with the native peoples is without support 

in history and is contrary to the only expressions of the Framers’ original intent. The Constitution gave Congress power over the Indian peoples, however and wherever it found them. 

The First Federal Congress treated the Constitution as granting 

broad power to regulate ‘‘trade and intercourse’’ with ‘‘Indians,’’ ‘‘Indian tribes,’’ ‘‘nations of Indians,’’ and ‘‘Indian country.’’ 123 Congress understood its power to ‘‘operate immediately on the persons 

and interests of individual citizens.’’ 124 The actions of the new government also show that even when the Framers knew nothing 

about the organization of Indian peoples, they nevertheless intended to assert Federal power over those peoples. Shortly after 

taking office, President Washington gave instructions to Commissioners to negotiate with the Creeks. It was, as noted, the war between the Creeks and Georgia that had fostered the apparently 

universal conclusion that the new Federal government must be 

given supremacy over Indian affairs. Washington instructed the 

Commissioners to determine the nature of the Creek’s political divisions and governments, including ‘‘[t]he number of each division’’; 

‘‘[t]he number of Towns in each District’’; ‘‘[t]he names, Characters 

and residence of the most influential Chiefs—and * * * their 

29

125Washington, Instructions to the Commissioners for Southern Indians, August 29, 1789, in 

2 First Federal Congress, at 207 (emphasis added). 126Thomas Jefferson, ‘‘Instructions to Captain Lewis,’’ June 20, 1803, in Jefferson, Writings, 

supra, at 1126, 1128. 

grades of influence.’’ And, most tellingly, the Commissioners were 

to learn ‘‘[t]he kinds of Government (if any) of the Towns, Districts, 

and Nation.’’ 125 Washington, like other Founders, did not know 

how the Creek lived and how they governed themselves. But however the Indian peoples lived, and however they governed themselves, they were still Indian peoples and they were still subject to 

the supreme power of the Federal government over Indian tribes. 

President Jefferson gave similar instructions to Lewis and Clark. 

When they encountered unknown Indian peoples, the explorers 

were to learn the ‘‘names of the nations’’; ‘‘their relations with 

other tribes or nations’’; their ‘‘language, traditions, monuments’’; 

and the ‘‘peculiarities in their laws, customs & dispositions.’’ 126

Like Washington, Jefferson knew there was much he and his fellow 

citizens did not know about the ‘‘Indian’’ peoples; but he intended 

to find out and to assert Federal authority over whatever he found. 

Fourteenth Amendment to the United States Constitution 

It is inconceivable anyone thought that if Washington’s Commissioners or Lewis and Clark found a native people living without 

‘‘chiefs,’’ like many Eskimo, or under a King like Montezuma or Kamehameha, these people would be beyond Congress’ power over Indian ‘‘tribes’’ or nations. Nor did the Framers of the Fourteenth 

Amendment intend to eliminate Congress’ special power to adopt 

legislation singling out and favoring Indians; they did not intend 

to alter the nation-to-nation relationships between the United 

States and the Indian peoples created by the Constitution. Indeed, 

the Framers of the Amendment were at pains to make certain that 

they preserved that structure. 

‘‘Indians’’ are expressly singled out for special treatment by the 

text of the Amendment. In order to eliminate the morally repugnant language which counted slaves as three-fifths persons, the 

Framers of the Fourteenth Amendment redrafted the apportionment clause. The Framers deleted the ‘‘three-fifths persons,’’ but 

retained the express exclusion of ‘‘Indians not subject to tax’’

(Amend. XIV, Sec. 1), because, while they intended to wipe out the 

badges and incidents of slavery, they intended to preserve the special relationship between the United States and the Indian people. 

Before and after the Amendment, Indians were not citizens of the 

United States, they did not have the right to vote, they did not 

count for purposes of apportionment, but they were subject to special legislation in furtherance of Congress’ historic trust responsibilities. 

The only debate during the drafting and ratification of the Fourteenth Amendment was not about whether the special relationship 

with the Indian people should be preserved, but about how to make 

certain it was preserved. When one Senator suggested that specific 

reference be made excluding ‘‘Indians’’ from the citizenship clause, 

the Senator presenting the clause argued this was unnecessary. 

The Amendment provided citizenship only to persons ‘‘within the 

30

127Similar limiting language occurs in the Equal Protection Clause. 128 Cong. Globe, 39th Congress, Ist Sess. 2895. 129See, e.g., Remarks of Sen. Doolittle, Cong. Globe, 39th Cong., 1st Sess., 2895–2896 (1866) 

(‘‘[Senator Howard] declares his purpose to be not to include Indians within this constitutional 

amendment. In purpose I agree with him. I do not intend to include them. My purpose is to 

exclude them’’). 130 Congress expressed the same intent in the Civil Rights Act that same year. The Act, granting citizenship to the emancipated slaves, specifically excluded ‘‘Indians not taxed.’’ Civil Rights 

Act, ch. 31, 14 Stat. 27 (1866). 131 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831). 132 Id at 17. 133Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 572–74 (1823). 134See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832). 135 Cherokee Nation, 30 U.S. (5 Pet.) at 17–18; Worcester, 31 U.S. (6 Pet.) at 558–59. 136See Worcester, 31 U.S. (6 Pet.) At 560–61; accord Cherokee Nation, 30 U.S. (5 Pet.) At 16 

(‘‘[t]hey look to our government for protection, rely upon its kindness and its power; appeal to 

it for relief to their wants’’). 137Johnson, 21 U.S. (8 Wheat.) at 572–74; Worcester, 31 U.S. (6 Pet.) at 544 (1832) (Indians 

are ‘‘those already in possession [of land], either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man’’). See also Johnson, 21 U.S. (8 Wheat.) at 

575 (Indians in French Canada); id. at 581 (Indians in Nova Scotia); Id. at 584–87 (Indians in 

jurisdiction’’ of the United States,127 and Indian nations were treated like alien peoples not fully within the jurisdiction of the government: 

in the very Constitution itself there is a provision that 

Congress shall have power to regulate commerce, not only 

with foreign nations and among the States, but also with 

Indian tribes. That clause, in my judgment, presents a full 

and complete recognition of the national character of the 

Indian tribes.128

Congress debated what language to adopt in order to make certain that the special status of the Indian tribes was preserved.129

There was no support for, or consideration given to, eliminating the 

special relationship between the United States and the Indian peoples. The uniform intent was to preserve Congress’ ability to decide 

when Indians would be granted citizenship, when Indians would be 

taxed, and when Indians would be subject to special legislation.130

For nearly two hundred years, the Supreme Court has recognized 

the political distinction the Constitution draws between ‘‘Indian 

tribes’’ and all other people. The early opinions of Chief Justice 

John Marshall reflect the original intent of the Framers and lay 

the groundwork for the Supreme Court’s jurisprudence. Marshall 

wrote that ‘‘[t]he condition of the Indians in relation to the United 

States is perhaps unlike that of any other two people in existence.’’ 131 With deliberate irony, he called the Indian tribes ‘‘domestic dependent nations.’’ 132 The Indian peoples had surrendered 

‘‘their rights to complete sovereignty,’’ 133 and yet they continued to 

be ‘‘nations’’ that governed themselves.134

Marshall knew that the constitutional text reflected this preexisting nation-to-nation relationship. The Indian Commerce 

Clause, U.S. Const. art. I., 3, cl. 8, and the Treaty Clause, art. II, 

§ 2, cl. 2, granted Congress broad power to regulate Indian affairs. 

These provisions permitted the United States to fulfill its obligations to the dependent Indian ‘‘nations’’ that were its ‘‘wards.’’ 135

As ‘‘guardian,’’ Congress had both the obligation and the power to 

enact legislation protecting the Indian nations.136

Marshall defined ‘‘Indians’’ broadly to include all of the ‘‘original 

inhabitants’’ or ‘‘natives’’ who occupied America when it was discovered by ‘‘the great nations of Europe.’’ 137 He also conceived of 

31

Virginia, Kentucky, the Louisiana Purchase, and Florida). Marshall noted the United States had 

dealt with variously organized ‘‘tribes’’ or ‘‘confederacies.’’ See id. at 546–49. 138Worcester, 31 U.S. (6 Pet.) at 559, 561. See also Cherokee Nation, 30 U.S. (5 Pet.) At 20 

(‘‘an Indian tribe or nation within the United States’’); Johnson, 21 U.S. (8 Wheat.) At 590 (‘‘the 

tribes of Indians inhabiting this country’’). 139 Id., at 559. 140 Id. at 559–60. 141See, e.g., Montoya v. United States, 180 U.S. 261, 266 (1901) (‘‘a body of Indians of the 

same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory’’); United States v. Candelaria, 271 U.S. 

432, 442 (1926); see Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993); 

United States v. Antelope, 430 U.S. 641, 647 n.7 (1977) (individuals ‘‘anthropologically’’ classified 

an Indians may be outside Congress’’ Indian commerce power if they sever relations with tribe). 142 United States v. Antelope, 430 U.S. 641, 646–47 (1977). 143 Id., at 646. 144 Antelope, 430 U.S. at 646; see Fisher v. District Court, 424 U.S. 382, 389 (1976); Mancari, 

417 U.S. at 553–54; see also Sac & Fox Nation, 508 U.S. at 123; United States v. Mazurie, 419 

U.S. 544, 557 (1975). 145Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978); Cherokee Intermarriage Cases, 

203 U.S. 76, 95 (1906); Boff v. Burney, 168 U.S. 218, 222–23 (1897). 

‘‘tribes’’ in broad, inclusive terms. He used ‘‘tribe’’

and’’nation’’interchangeably: A ‘‘tribe or nation,’’ he noted, ‘‘means 

a people distinct from others’’—a ‘‘distinct community’’ 138 Like the 

Founders, Marshall defined an ‘‘Indian tribe’’ as nothing more than 

a community, large or small, of descendants of the peoples who inhabited the New World before the Europeans. 

Although the aboriginal ‘‘tribes’’ or ‘‘nations’’ or ‘‘peoples’’ were 

defined in part by common ancestry, their constitutional significance lay in their separate existence as ‘‘independent political communities.’’ 139 The ‘‘race’’ of Indian peoples was constitutionally irrelevant. Native peoples were ‘‘nations,’’ 140 and the relationship between the United States and the natives reflected a political settlement between conquered and conquering nations. 

The Supreme Court has kept faith with Marshall’s conception. 

The Indian nations have always been defined by ancestry and political affiliation. In the native cultures, the two are inextricably 

intertwined. The Supreme Court’s definition is legal, and the Native American’s self-definition is historic, religious or cultural; but 

the two reduce to the same elements: ‘‘Indians’’ are (i) the descendants of aboriginal peoples who (ii) belong to some Native American 

‘‘people,’’ ‘‘nation,’’ ‘‘tribe,’’ or ‘‘community,’’ as the founding generation understood those terms.141

These interwoven qualifications reflect the Supreme Court’s consistent understanding that constitutionally-relevant Indian status, 

while based in part on ancestry, is a political classification.142 It is 

an individual’s membership in a ‘‘political community’’ of Indians—

even a community in the making—and not solely his or her racial 

identity, that brings him or her within Congress’ broad authority 

to regulate Indian affairs.143

Indian Tribes and Blood Quantum 

Nor does the use of blood quantum as part of the formula to determine who is and is not a Native American constitute impermissible ‘‘racial’’ discrimination. The Supreme Court has repeatedly 

made clear that Indian tribes are the political and familial heirs to 

‘‘once-sovereign political communities’’—not ‘‘racial groups.’’ 144 The 

Court has long recognized that a tribe’s ‘‘right to determine its own 

membership’’ is ‘‘central to its existence as an independent political 

community.’’ 145 From time immemorial, Native American commuVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00031 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
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146See Indian Policy Report at 108–09 (‘‘the tribe, as a political institution, has primary responsibility to determine tribal membership for purposes of voting in tribal elections * * * and 

other rights arising from tribal membership. Many tribal provisions call for one-fourth degree 

of blood of the particular tribe but tribal provisions vary widely. A few tribes require as much 

as one-half degree of tribal blood * * *’’); accord Felix S. Cohen, Handbook of Federal Indian 

Law 22–23 & n.27 (1982 ed.). 147 Id., 437 U.S. at 646. 148 Id. at 650 (quoting 25 U.S.C. Sec. 479). 149 Alaska Chapter v. Pierce, 694 F.2d 1162, 1168–69 n. 10 (9th Cir.1982) (noting absence of 

other practicable methods, like tribal rolls or proximity to reservations). 150 United States v. Kagama, 118 U.S. 375, 384–85 (1886) (emphasis added); See Seminole Nation v. United States, 316 U.S. 286, 296 (1942) (the government owes a ‘‘distinctive obligation 

of trust’’ to Indians). 151See Greater New Orleans Broadcasting Assn v. United States, 527 U.S. 173, 193 (1999) 

(recognizing ‘‘special federal interest in protecting the welfare of Native Americans’’). 

nities have defined themselves at least in part by family and ancestry.146 Kinship and ancestry is part of what it means to be an ‘‘Indian.’’ To the Framers, the essence of ‘‘Indianness’’ was determined 

by ancestry or blood. It is what Chief Justice Marshall meant by 

‘‘Indians.’’ It is what the Framers of the Fourteenth Amendment 

meant by ‘‘Indians.’’ This central conception of ‘‘Indian’’ identity is 

woven into the Constitution and the entire body of law that has 

grown up in reliance on that conception. 

Congressional authority to use such traditional requirements for 

tribal membership or benefits has never been doubted. In United 

States v. John, the Supreme Court approved Congress’ establishment of an Indian reservation for the benefit of ‘‘Chocktaw Indians 

of one-half or more Indian blood, resident in Mississippi.’’ 147 The 

Court unhesitatingly applied the definition of ‘‘Indian’’ that appears 

in the Indian Reorganization Act, which has governed Indian tribes 

since 1934: ‘‘all other persons of one-half or more Indian blood.’’ 148

Similarly, the Alaska Native Claims Settlement Act’s use of a blood 

quantum formula as one factor in determining ‘‘native’’ status is a 

valid method of defining those belonging to the group eligible for 

statutory benefits, and the use of the blood quantum ‘‘does not detract from the political nature of the classification.’’ 149 The use of 

blood ties is integral to the nature of the political deal struck between the conquering Europeans and the native peoples, as they 

set out to maintain partially separate existences while inhabiting 

the same country. 

This is not to suggest, however, that the Constitution imposes 

any minimum blood quantum requirement for tribal membership, 

and suggestions to the contrary have no legal or historical basis. 

The constitutional text and historic relationship gives Congress 

not just the ‘‘right’’ to discriminate between Native Americans and 

others, but the responsibility to do so. As the Supreme Court has 

long recognized, from the relationship between these former sovereign peoples and the ‘‘superior nation’’ that conquered them 

arises ‘‘the power and the duty’’ of the United States to ‘‘exercis[e] 

a fostering care and protection over all dependent Indian communities within its borders. * * * ’’ 150 Recently, the Supreme Court 

acknowledged the continued significance of this historic trust relationship.151

Like the 556 Indian tribes currently recognized by the United 

States, Native Hawaiians are a group of people defined by their 

common descent from an ancestral class, each forming a distinct 

polity and having a unique historical existence. Any contemporary 

group whose members are defined by their lineal descendancy from 

33

152 72 U.S. 737 (1866). 153 Id., 72 U.S. at 755–57. 154See United States v. Joseph, 94 U.S. (4 Otto.) 614, 616 (1877). 155 United States v. Sandoval, 231 U.S. 28, 46–47 (1913); Candelaria, 271 U.S. at 439–40, 

442–43. 156Sandoval, 231 U.S. at 46; accord Tiger v. Western Inv. Co., 221 U.S. 286, 315 (1911). 157 437 U.S. 634 (1978). 158 Id., 437 U.S. at 652–53. 159 Id., at 650 n.20, 652–53. 

a historically-defined class will necessarily share an ethnic identity 

with the original members of the historical class, even though 

intermarriage may attenuate the degree of blood quantum shared 

by the original historical class members. Nevertheless, a definition 

that is based primarily on the historical uniqueness of the original 

class is no more race-based than the definition of those who are 

members or citizens of the historic Indian tribes that greeted the 

first Europeans immigrants to this nation’s shores. 

The Supreme Court has repeatedly applied the concepts of ‘‘Indian’’ and ‘‘tribe’’ to a wide variety of Native American communities, recognizing the constant evolution of Native community life 

and that the questions of whether and how to treat with these 

changing communities are assigned by the Constitution to Congress. In The Kansas Indians,152 the Court recognized that the 

Ohio Shawnees remained a ‘‘tribe,’’ even though tribal property 

was no longer owned communally and the tribe had abandoned Indian customs ‘‘owing to the proximity of their white neighbors.’’ 153

Fifty years later, the Supreme Court approved a similar tribal 

designation for the Pueblo Indians of New Mexico. After long experience under Spanish rule, the Pueblo Indians seemed little like 

the ‘‘savages’’ of James Fennimore Cooper. The Pueblo Indians 

lived in villages with organized municipal governments; they cultivated the soil and raised livestock; they spoke Spanish, worshiped 

in the Roman Catholic Church; and prior to the acquisition of New 

Mexico by the United States, they enjoyed full Mexican citizenship.154 Nevertheless, the Pueblo Indians lived in ‘‘distinctly Indian 

communities,’’ and Congress acted properly under the Indian Commerce Clause in determining that they were ‘‘dependent communities entitled to its aid and protection, like other Indian tribes.’’ 155

For Native American ‘‘communities,’’ the Court held that ‘‘the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by 

Congress * * * ’’.156

As indicated above, sixty years later, in United States v. John,157

the Supreme Court recognized Congress’ authority to establish a 

reservation for the benefit of Choctaw Indians in Mississippi, even 

though (1) they were ‘‘merely a remnant of a larger group of Indians’’ that had moved to Oklahoma; (2) ‘‘federal supervision over 

them had not been continuous’’; and (3) they had resided in Mississippi for more than a century and had become fully integrated 

into the political and social life of the State.158 The Mississippi 

Choctaw were Indians. They had recently organized into a distinctly Indian community. The Court therefore deferred to Congress’ determination that they were a ‘‘tribe for the purposes of 

Federal Indian law.’’ 159

34

160 United States v. Holliday, 70 U.S. (3 Wall.) 407, 417 (1865) (regulation of ‘‘commerce with 

the Indian tribes means’’ regulation of ‘‘commerce with the individuals composing those tribes’’); 

see Morton v. Ruiz, 415 U.S. 199, 230–38 (1974) (addressing the scope of federal Indian welfare 

benefits for individuals living in Indian communities); Mancari, 417 U.S. at 551–55. 161See Cherokee Nation v. Journeycake, 155 U.S. 196 (1894) (Delaware Indians entitled to 

rights of Cherokee Nation which Delawares had joined); United States v. Blackfeather, 155 U.S. 

218 (1894) (same for Shawnee). 162See John, 437 U.S. at 652–53; Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 

480 (1976). 163 Although the Alaska natives’ situation is ‘‘distinctly different from that of other American 

Indians,’’ Alaska Chapter, 694 F.2d at 1168–69 n.101, see Metlakatla Indian Community v. 

Egan, 369 U.S. 45, 50–51 (1962), it is ‘‘well established’’ that Athabascan Indians, Eskimos, and 

Aleuts are ‘‘dependent Indian people’’ within the meaning of the Constitution. Alaska Pacific 

Fisheries v. United States, 248 U.S. 78, 87–89 (1918); see also Pence v. Kleppe, 529 F.2d 135, 

138–39 n.5 (9th Cir. 1976) (‘‘Indian’’ means ‘‘the aborigines of America’’ and includes Eskimos 

and Aleuts in Alaska); United States v. Native Village of Unalakleet, 411 F.2d 1255, 1256–57 

(Ct. Cl. 1969) (‘‘Eskimos and Aleuts are Alaskan aborigines’’ and, therefore, ‘‘Indians’’). 164Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978). 165See, e.g., Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case 

of Native Hawaiians, 106 Yale L.J. 537, 607–8 & n.287 (1996) (discussing this argument, while 

noting that ‘‘[i]nclusion of some Westerners would not necessarily defeat a claim of tribal status’’ as the Supreme Court has never directly addressed the question, and noting that ‘‘some Indian 

tribes included Westerners. * * *’’. 166See, e.g., United States v. Rogers, 45 U.S. (4 How.) 567 (1846); Westmoreland v. United 

States, 155 U.S. 545 (1895); Alberty v. United States, 162 U.S. 499 (1896); Lucas v. United 

States, 163 U.S. 612 (1896); Nofire v. United States, 164 U.S. 657 (1897). The question of whether such non-Indian tribal citizens should be treated as ‘‘Indians’’ for purposes of particular Federal jurisdictional statutes is a separate issue that has no bearing on the eligibility of the tribe 

itself for recognition. 

Similarly, the Supreme Court has recognized Congress’ broad authority to deal with individual ‘‘Indians’’ 160 or large organizations 

comprised of numerous ‘‘tribes.’’ 161 Congress may recognize new 

aggregations of Native Americans, so long as such legislation is rationally related to the fulfillment of Congress’ trust obligation to 

the historic Indian peoples.162 Congress’ treatment of the Alaska 

native people—including the establishment of unique regional corporations whose shareholders comprise numerous Native villages—

has properly been upheld as within Congress’ special power over 

and responsibility for the Native American peoples.163

Citizens of the Kingdom of Hawai’i 

Contrary to well-established principles of Federal-Indian law 

that recognize the right of a tribe to determine its own members 

as a fundamental aspect of the tribe’s sovereignty,164 some have argued that the Kingdom of Hawai’i somehow lost its ‘‘native’’ character because some non-Hawaiians became naturalized citizens of 

the Kingdom. This argument is used as the basis for asserting that 

Native Hawaiians cannot now be ‘‘recognized’’ as a native group 

with which the United States may maintain a special legal and political relationship.165 However, as evident from the preceding discussion of Supreme Court rulings and precedent, this argument 

lacks any constitutional basis. The Supreme Court has often decided cases relating to the status of non-Indians who had become 

members or citizens of Indian tribes,166 but the Court has never 

suggested that a tribal law that provides for the membership or 

citizenship in the tribe of previously non-tribal members renders 

those tribes or their modern-day successors ineligible for recognition as having a special legal and political relationship with the 

United States pursuant to the Indian Commerce Clause. Similarly, 

opposition to the recognition of a Native Hawaiian governing entity 

premised upon the attenuation of the blood quantum of its citizens 

lacks any historical or constitutional basis. 

35

167See, e.g., Public Law No. 129, §§ 1–4, 34 Stat. 137, 137–38 (April 26, 1906) (setting forth 

enrollment criteria for members of the Choctaw, Chickasaw, Cherokee, Creek and Seminole 

Tribes of Oklahoma). 168See 25 C.F.R. Part 83. 169William W. Quinn, Jr., Federal Acknowledgment of American Indian Tribes: The Historical 

Development of a Legal Concept, 34 Am. J. Leg. Hist. 331, 332 (1990) (citing 48 Stat. 984 (1934) 

(codified as amended at 25 U.S.C. §§ 461 et seq.)); see generally, William W. Quinn, Jr., Federal 

Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. 83, 

17 Am. Indian L. Rev. 37 (1992); L.R. Weatherhead, What is an ‘‘Indian Tribe’’?—The Question 

of Tribal Existence, 8 Am. Indian L. Rev. 1 (1980). 170 25 C.F.R., Part 83. Quinn 1992, at 40–41. 171See 25 CFR §§ 83.1, 83.3 (administrative process available only to groups within the ‘‘continental United States,’’ defined as the ‘‘contiguous 48 states and Alaska’’). Native Hawaiians 

have twice sought unsuccessfully to challenge their exclusion from this process. Price v. State 

of Hawai’i, 764 F.2d 623 (9th Cir. 1985); Kahawaiolaa v. Norton, 222 F. Supp. 2d 1213 (D. Haw. 

2002). 

Many contemporary tribes define their citizenship or membership based upon lineal descendancy from a tribal roll, and the Congress has from time to time established criteria for membership in 

certain tribes.167 What neither the Congress nor the Supreme 

Court has done is to suggest that the Constitution imposes a blood 

quantum limitation or requirement on tribal citizenship. 

The Significance of ‘‘Federal Recognition’’

It is important to recognize that the legal distinctions that have 

been drawn in contemporary times between Indian tribes that are 

‘‘acknowledged’’ by the Department of the Interior 168 or ‘‘recognized’’ by the Congress—tribes that have a direct government-togovernment relationship with the United States and are thereby eligible for various Federal benefits—and Native American groups 

that are not so recognized and have no such government-to-government relationship, is a relatively recent phenomenon. ‘‘[A] close 

scrutiny of the various executive orders, Congressional legislation, 

departmental policies, Solicitor’s opinions, and judicial decisions 

since 1783 * * * discloses an astonishing oblivion of the need for 

an express declaration or statement regarding which Indian tribes 

were to be recognized, until the enactment of the Wheeler-Howard 

(Indian Reorganization) Act of 1934,’’ 169 thirteen years after the 

enactment of the Hawaiian Homes Commission Act. In fact, there 

was no systematic procedure by which a Native American group 

could petition the United States for recognition until 1978, when 

regulations were promulgated to implement the Federal Acknowledgment process.170

An administrative process for the acknowledgment of Native 

groups by the United States that was established almost twenty 

years after Hawai’i’s admission to the Union could not have informed the provisions of the Hawaiian Homes Commission Act nor 

the Hawai’i Admission Act and it is thus not surprising that the 

language of those Acts do not conform neatly with categorizations 

that had yet to be developed. 

Although the authority of Congress to formally ‘‘recognize’’ tribes 

through legislation is unquestioned, the Department of the Interior’s regulations associated with the administrative process for the 

acknowledgment of tribes pursuant to 25 CFR Part 83 exclude Native Hawaiians from that process, and thus legislation is the only 

mechanism available to Native Hawaiians.171 The present legislation thus establishes no precedent applicable to groups eligible to 

apply for recognition under the existing administrative framework. 

36

The primary injury that S. 344 is intended to address is the loss 

of a sovereign governing entity resulting from the 1893 overthrow 

of the government of the Kingdom of Hawai’i, an event made possible by the actions of officials and citizens of the United States. 

Although Congress has consistently recognized Native Hawaiians 

as among the Native people of the United States on whose behalf 

it may exercise its powers under the Indian Commerce Clause, it 

has not as yet acted to provide a process for the reorganization of 

a Native Hawaiian sovereign governing entity. S. 344 provides authority for that process. 

Summary of Provisions of S. 344 

The findings of S. 344 focus on the history of Native Hawaiians 

and the United States policy as it relates to Native Hawaiians, including the enactment of over 160 public laws to address the conditions of Native Hawaiians. 

S. 344 also provides a process for the recognition of a Native Hawaiian government by the United States for purposes of carrying 

on a government-to-government relationship. 

S. 344 provides for the development of a roll of the adult members of the Native Hawaiian community who meet the definition of 

‘‘Native Hawaiian’’ in section 3(7) of S. 344 and who wish to participate in the reorganization of the Native Hawaiian governing entity. 

This roll is to be submitted to the Secretary of Interior by the adult 

members of the Native Hawaiian community and the names on the 

roll are to be certified as meeting the definition of ‘‘Native Hawaiian’’ in section 3(7) of S. 344. The Secretary then publishes the roll 

and thereafter, the adult members of the Native Hawaiian community elect an Interim Governing Council that is authorized to conduct referenda on the proposed elements of the organic governing 

documents of the Native Hawaiian governing entity, the proposed 

criteria for citizenship of the Native Hawaiian governing entity, the 

proposed powers and authorities to be exercised by the Native Hawaiian governing entity, as well as the proposed privileges and immunities of the Native Hawaiian governing entity, the proposed 

civil rights and protection of civil rights of the citizens of the Native Hawaiian governing entity and all persons subject to the authority of the Native Hawaiian governing entity, and other issues 

determined appropriate by the Council. 

Based on the referendum, the Council is authorized to develop 

proposed organic governing documents for the Native Hawaiian 

governing entity, to distribute them to all adult members of the 

Native Hawaiian community listed on the roll, and conduct an election for the purpose or ratifying the proposed organic governing 

documents. Upon the ratification of the organic governing documents, the governing documents are to be submitted to the Secretary of the Interior for certification that they are consistent with 

Federal law and the special relationship between the United States 

and native people. The Secretary is also authorized to certify that 

the governing documents provide for the protection of the civil 

rights of the citizens of the Native Hawaiian government and any 

others who would come within the jurisdiction of the government. 

Once the Secretary has made these certifications, and the officers 

of the Native Hawaiian governing entity are elected, the bill provides authority for the United States’ recognition of the Native HaVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00036 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
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waiian government. Upon recognition, the definition of ‘‘Native Hawaiian’’ for purposes of S. 344, would be as provided for in the organic governing documents of the Native Hawaiian government. 

S. 344 also provides authority for the establishment of a United 

States Office of Native Hawaiian Relations within the Office of the 

Secretary of the U.S. Department of the Interior. The Office is to 

be the principal entity through which the United States will carry 

on relations with the Native Hawaiian people until a Native Hawaiian government is formed. The Office would also serve as the 

primary agent of ongoing efforts to effect the reconciliation that is 

authorized in the Apology Resolution. The Office would also serve 

as lead agency for the work of a Native Hawaiian Interagency Task 

Force that is authorized to be established in S. 344. 

Indian and Native Hawaiian Program Funding 

As referenced above, since 1910, the Congress has enacted over 

160 statutes designed to address the conditions of Native Hawaiians. Appropriations for Native Hawaiian programs have always 

been separately secured and have had no impact on program funding for American Indians or Alaska Natives, based in part on the

fact that generally, Native Hawaiian programs do not come within 

the jurisdiction of the appropriations subcommittees that provide 

funding for American Indian and Alaska Native programs. Consistent with this practice, S. 344 provides authority for a separate 

and distinct appropriation that does not impact in any way on existing authorizations for American Indian and Alaska Native programs. 

It is also important to note that Federal programs addressing 

health care, education, housing, job training, Native graves protection, arts and culture, and language preservation for Native Hawaiians are already in place. Accordingly, new impacts on the Federal 

budget that might otherwise be anticipated with the Federal recognition of a native government will not be forthcoming as a result 

of the recognition of a Native Hawaiian government. S. 344 does 

authorize appropriations for the establishment of the U.S. Office of 

Native Hawaiian Relations within the Department of the Interior, 

but the costs associated with these activities are not expected to be 

significant. 

Gaming 

Some have questioned whether the reorganization of a Native 

Hawaiian government might have implications for gaming that is 

conducted under the authority of the Indian Gaming Regulatory 

Act (IGRA). The Act authorizes Indian tribal governments to conduct gaming on Indian reservations and lands held in trust by the 

United States for Indian tribes and over which a tribal government 

exercises jurisdiction. The scope of gaming that can be conducted 

under the Indian Gaming Regulatory Act is determined by the law 

of the state in which the Indian lands are located. There are no Indian reservations or Indian lands in the State of Hawai’i, nor are 

there any Indian reservations or Indian lands over which a tribal 

government exercises jurisdiction in the State of Hawai’i. 

The U.S. Supreme Court has held that in Public Law 83–280 

states, state laws that criminally prohibit certain forms of gaming 

apply on Indian lands. Hawai’i is one of only two states in the 

38

Union (the other is Utah) that criminally prohibit all forms of gaming. Accordingly, a reorganized Native Hawaiian government could 

not conduct any form of gaming in the State of Hawai’i under the 

authority of the Indian Gaming Regulatory Act. In an effort to address concerns about the application of the IGRA, S. 344 provides 

that nothing in S. 344 is to be construed as an authorization for 

the Native Hawaiian governing entity to conduct gaming activities 

under the authority of the Indian Gaming Regulatory Act. 

EXPLANATION OF AMENDMENTS

The amendment in the nature of a substitute to S. 344 as approved by the Committee includes the following substantive 

changes: 

• Addition of a section setting forth the short title of the Act; 

• Inclusion of a finding addressing actions undertaken by 

the legislature of the State of Hawai’i and the Governor of Hawai’i expressing support for the recognition of a Native Hawaiian governing entity by the United States; 

• Addition of provisions addressing a process for the reorganization of the Native Hawaiian governing entity; 

• Addition of a section providing a waiver of certain provisions that would otherwise bar Native Hawaiians from employment in the United States Office for Native Hawaiian Relations. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

This section states that this Act may be cited as the ‘‘Native Hawaiian Recognition Act of 2003’’. 

Section 2. Findings 

This section sets forth the Congress’ findings. Findings (1) 

through (4) address Congress’ recognition of Native Hawaiians as 

native people of the United States and the State of Hawai’i. Findings (5) through (7) reflect Congress’ determination of the need to 

address conditions of Native Hawaiians through the Hawaiian 

Homes Commission Act of 1920. Findings (8) and (9) document 

Congress’ establishment of the ceded lands trust as a condition of 

statehood for the State of Hawai’i. Findings (9) through (11) reflect 

the importance of the Hawaiian Home Lands and Ceded Lands to 

Native Hawaiians as a foundation for the Native Hawaiian community for the survival and economic self-sufficiency of the Native Hawaiian people. Findings (12) through (14) address the effect of the 

Apology Resolution. Findings (15) through (19) address the status 

of the Native Hawaiian community as a ‘‘distinct native community.’’ Finding (20) reflects the legal position of the United States 

before the U.S. Supreme Court in the case of Rice v. Cayetano.

Findings (21) and (22) reaffirm the special political and legal relationship between the Native Hawaiian people and the United 

States. Finding (23) documents that the Governor and Legislature 

of the State of Hawai’i have expressed their strong support for the 

recognition of the Native Hawaiian governing entity. 

39

Section 3. Definitions 

This section sets forth definitions of terms used in the bill. Defined terms are Aboriginal, Indigenous, Native People; Adult Members; Apology Resolution; Council; Interagency Coordinating Group; 

Native Hawaiian; Native Hawaiian Governing Entity; Office; and 

Secretary. 

With regard to the definition of the term ‘‘Native Hawaiian,’’ it 

is the intent of the Committee that the definition shall be applicable for the purpose of establishing the roll authorized under section 

7(b)(1) and until such time as the Native Hawaiian governing entity is recognized by the United States. Thereafter, however, the definition of this term for the purposes of citizenship in the Native 

Hawaiian governing entity shall be as set forth in the organic governing documents of the Native Hawaiian governing entity, and 

upon certification of those documents by the Secretary of the Interior, the definition of Native Hawaiian in the organic governing 

documents of the Native Hawaiian governing entity shall be the 

definition of Native Hawaiian for purposes of this Federal law. 

Section 4. United States policy and purpose 

This section reaffirms that Native Hawaiians are an aboriginal, 

indigenous, native people with whom the United States has a special political and legal relationship. It also affirms that Native Hawaiians have the right to self-determination and that it is the intent of the Congress to provide a process for the reorganization of 

the Native Hawaiian governing entity and for the Federal recognition of the Native Hawaiian governing entity for purposes of continuing a government-to-government relationship. 

Section 5. United States Office for Native Hawaiian Relations 

This provision provides authority for the establishment of the 

United States Office for Native Hawaiian Relations within the Office of the Secretary of the Department of the Interior. This Office 

is charged with: (1) effectuating and coordinating the special political and legal relationship between the Native Hawaiian people 

and the United States; (2) continuing the process of reconciliation 

with the Native Hawaiian people, and upon recognition of the Native Hawaiian governing entity by the United States, continuing 

the process of reconciliation with the Native Hawaiian governing 

entity; (3) fully integrating the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian people and the Native Hawaiian governing entity prior to taking any actions that may have the potential to significantly affect 

Native Hawaiian resources, rights, or lands; (4) consulting with the 

Native Hawaiian Interagency Coordinating Group, other Federal 

agencies, and with relevant agencies of the State of Hawai’i on policies, practices, and proposed actions affecting Native Hawaiian resources, rights, or lands; and (5) preparing and submitting to the 

Senate Committee on Indian Affairs, Senate Committee on Energy 

and Natural Resources, and House Resources Committee an annual 

report detailing the activities of the Interagency Coordinating 

Group that are undertaken with respect to the continuing process 

of reconciliation and to effect meaningful consultation with the Native Hawaiian governing entity, and providing recommendations for 

40

any necessary changes to existing Federal statutes or regulations 

promulgated under the authority of Federal law. 

It is the intent of the Committee that the United States Office 

for Native Hawaiian Relations serve as a liaison between the Native Hawaiian people and the United States for the purposes of 

continuing the reconciliation process and ensuring proper consultation with the Native Hawaiian people for any Federal policy impacting Native Hawaiians. The Committee does not intend that the 

United States Office for Native Hawaiian Relations will assume the 

responsibility or authority for any of the Federal programs established to address the conditions of Native Hawaiians. All Federal 

programs established and administered by Federal agencies will remain with those agencies. 

Section 6. Native Hawaiian Interagency Coordinating Group 

This section authorizes the establishment of an Interagency Coordinating Group composed of officials from each Federal agency, 

to be designated by the President, and a representative from the 

U.S. Office of Native Hawaiian Relations. The Department of Interior is to serve as the lead agency of the Coordinating Group. The 

primary responsibility of the Interagency Coordinating Group is to 

coordinate Federal policies or acts that affect Native Hawaiians or 

impact Native Hawaiian resources, rights, or lands. The Coordinating Group is also charged with assuring that each Federal agency develops a Native Hawaiian consultation policy and participates 

in the development of the report to Congress authorized in section 

4. 

Section 7. Process for the recognition of the Native Hawaiian governing entity 

Subsection (a) sets forth the recognition by the United States 

that the Native Hawaiian people have the right to organize for 

their common welfare and to adopt appropriate organic governing 

documents. 

Subsection (b) addresses a process for the reorganization of the 

Native Hawaiian government. 

Subsection (b)(1) provides that the United States Office for Native Hawaiian Relations (Office), in consultation with those adult 

members of the Native Hawaiian community who elect to participate in the reorganization of the Native Hawaiian governing entity 

(participating adult members), shall prepare and maintain a roll 

containing the names of those adult members of the Native Hawaiian community who meet the definition of ‘‘Native Hawaiian’’ as set 

forth in section 3(7) of S. 344. The Committee does not intend, nor 

does S. 344 provide authority for, the Office to conduct independent 

research into the genealogy of Native Hawaiians seeking to be listed on the roll beyond the documentation or other evidence submitted by those who wish to participate in the organization of the 

Native Hawaiian governing entity. The participating adult members, in consultation with the Office, shall certify to the Secretary 

that those individuals listed on the roll meet the definition of ‘‘Native Hawaiian’’ as set forth in section 3(7) of S. 344. Upon certification, the Secretary shall publish the roll, or if the Secretary fails 

to act within 90 days after the date that the roll is submitted to 

the Secretary, the Office shall publish the roll notwithstanding any 

41

order or directive issued by the Secretary or any other official of 

the Department of the Interior to the contrary. The Secretary may 

establish an appeal mechanism available to any Native Hawaiian 

excluded from the roll, provided however that the pendency of such 

appeals shall not delay the Secretary’s publication of the roll. The 

Secretary shall update the roll and shall publish the final roll upon 

the final disposition of all appeals. The effect of the publication of 

the roll is to assure that the roll will serve as the basis for the eligibility of adult members of the Native Hawaiian community whose 

names are listed on the roll to participate in all referenda and elections associated with the reorganization of the Native Hawaiian 

governing entity. 

Subsection (b)(2) addresses the organization of the Native Hawaiian Interim Governing Council. 

Subsection (b)(2)(A) provides that the adult members of the Native Hawaiian community whose names are listed on the roll published by the Secretary (published roll) may develop eligibility criteria for election to serve on the Native Hawaiian Interim Governing Council (Council), may determine the structure of the Council, and may elect the members of the Council from those listed on 

the final roll. 

Subsection (b)(2)(B) provides that at the request of the adult 

members of the Native Hawaiian community listed on the published roll, the Office may assist individuals listed on the roll in 

holding an election by secret ballot, including, at the option of the 

Office, absentee and mail balloting, to elect the membership of the 

Council. 

Subsection (b)(2)(C) provides that the Council may represent individuals on the published roll in the implementation of the Act 

and shall have no powers other than powers conferred upon the 

Council under the authority of S. 344. The subsection further provides that the Council may enter into a contract with, or obtain a 

grant from, any Federal or State agency for the purpose of carrying 

out its authorized activities. The Council may also conduct a referendum among the adult members of the Native Hawaiian community whose names are listed on the published roll for the purpose of determining the proposed elements of the organic governing 

documents of the Native Hawaiian governing entity, the proposed 

criteria for citizenship of the Native Hawaiian governing entity, the 

proposed powers, authorities, privileges, and immunities of the Native Hawaiian governing entity, the proposed civil rights and protection of the rights of the citizens of the Native Hawaiian governing entity and all persons subject to its authority, and other 

issues determined by the Council to be appropriate. Based on the 

referendum, the Council may develop proposed organic governing 

documents for the Native Hawaiian governing entity, may distribute to all adult members of the Native Hawaiian community 

listed on the published roll a copy of the proposed organic governing documents and a brief impartial description of their contents. The Council may also hold elections for the purpose of ratifying the proposed organic governing documents and, upon certification of those documents by the Secretary in accordance with section 7(b)(4), may hold elections of the officers of the Native Hawaiian governing entity. The Council may request the assistance of the 

Office in conducting the elections. 

42

Subsection (b)(2)(D) provides that the Council shall have no powers other than those set forth in S. 344, and those powers, and the 

existence of the Council itself, shall terminate when the duly elected officers of the Native Hawaiian governing entity take office. 

Subsection (b)(3) provides that following the organization of the 

Native Hawaiian governing entity and the adoption of organic governing documents, the Council shall submit the ratified organic 

governing documents to the Secretary. 

Subsection (b)(4)(A) provides that not later than 90 days after 

the date on which the Council submits the organic governing documents to the Secretary, the Secretary shall certify that the organic 

governing documents: 

• Establish criteria for citizenship in the Native Hawaiian 

governing entity;

• Were adopted by a majority vote of the adult members of 

the Native Hawaiian community whose names are listed on 

the roll published by the Secretary; 

• Provide for the exercise of governmental authorities by the 

Native Hawaiian governing entity; 

• Provide authority for the Native Hawaiian governing entity to negotiate with Federal, State, and local governments, and 

other entities; 

• Prevent the sale, disposition, lease, or encumbrance of 

lands, interests in lands, or other assets of the Native Hawaiian governing entity without the consent of the Native Hawaiian governing entity; 

• Provide for the protection of the civil rights of the citizens 

of the Native Hawaiian governing entity and all persons subject to the authority of the Native Hawaiian governing entity, 

and ensure that the Native Hawaiian governing entity exercises its authority in a manner consistent with the requirements of section 202 of the Act of April 11, 1968 (25 U.S.C. 

1302); and 

• Are consistent with applicable Federal law and the special 

political and legal relationship between the United States and 

the indigenous native people of the United States. It is the 

Committee’s intent that for purposes of determining whether 

the criteria for citizenship in the Native Hawaiian governing 

entity are consistent with applicable Federal law, the definition of ‘‘Native Hawaiian’’ contained in S. 344 or any other 

Federal law shall not serve as a constraint on the right of the 

Native Hawaiian governing entity to determine its own citizenship or membership. 

Subsection (b)(4)(B) provides that if the Secretary determines 

that any provision of the organic governing documents is not consistent with applicable Federal law, the Secretary shall resubmit 

the organic governing documents to the Council along with a justification for each of the Secretary’s findings as to why the provisions are not consistent with such law. The Council is authorized 

to amend the organic governing documents in order to ensure their 

compliance with applicable Federal law and to resubmit the organic governing documents to the Secretary for certification. It is 

the Committee’s intent that the resubmission to the Secretary of 

the organic governing documents does not foreclose the Native HaVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00042 Fmt 6659 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
43

waiian governing entity from seeking judicial review of the Secretary’s rejection of the proposed organic governing documents. 

Subsection (b)(4)(C) provides that the certification of the organic 

government documents shall be deemed to have been made if the 

Secretary has not acted within 90 days of the date that the Council 

has submitted, or resubmitted, the organic governing documents of 

the Native Hawaiian governing entity to the Secretary. 

Subsection (b)(5) provides that on completion of the certifications 

made by the Secretary, the Council may hold elections of the officers of the Native Hawaiian governing entity. 

Subsection (b)(6) provides that upon election of the Native Hawaiian governing entity’s officers and the certification of the organic governing documents of the Native Hawaiian governing entity, the United States shall extend Federal recognition to the Native 

Hawaiian governing entity as the representative governing body of 

the Native Hawaiian people. 

Section 8. Reaffirmation of delegation of Federal authority; negotiations 

Section 8(a) reaffirms the United States’ delegation of authority 

to the State of Hawai’i in the Hawai’i Admission Act to address the 

conditions of the indigenous, native people of Hawai’i. 

Section 8(b) provides that upon Federal recognition of the Native 

Hawaiian governing entity, the United States and the State of Hawai’i are authorized to enter into negotiations with the Native Hawaiian governing entity that are designed to lead to an agreement 

addressing matters such as the transfer of lands, natural resources 

and other assets, and the exercise of governmental authorities over 

such lands, natural resources and other assets. It is the Committee’s intent that the reference to ‘‘lands, natural resources and 

other assets’’ include, but not be limited to, lands set aside under 

the Hawaiian Homes Commission Act and lands ceded by the Republic of Hawai’i to the United States in 1898 and later ceded to 

the State pursuant to § 5 of the Hawai’i Admission Act and Pub. 

L. 88–233, 77 Stat. 472 (December 23, 1963). It is the Committee’s 

view that if an inventory of the ceded lands is required to facilitate 

negotiations addressing ceded lands, then such an inventory should 

be conducted. The section also provides that nothing in S. 344 shall 

be construed as a settlement of any claim against the United 

States. 

Section 9. Applicability of certain Federal laws

This section provides that nothing in S. 344 is to be construed 

as an authorization for the Native Hawaiian governing entity to 

conduct gaming activities under the authority of the Indian Gaming Regulatory Act or as an authorization for eligibility to participate in any programs and services provided by the Bureau of Indian Affairs, for any persons who are not otherwise eligible for 

such programs and services. 

Section 10. Ethics 

This section provides a limited waiver of the provisions of 18 

U.S.C. 208(a), prohibiting involvement by a Federal employee in 

matters in which an employee has a financial interest, to permit 

individuals who would otherwise be barred from such employment 

44

by reason of the status of the individual, a spouse, or minor child 

as a Native Hawaiian, to accept employment within the United 

States Office for Native Hawaiian Relations. 

Section 11. Severability clause 

This section provides that should any section or provision of this 

Act be deemed invalid, the remaining sections, provisions, and 

amendments shall continue in full force and effect. 

Section 12. Authorization of appropriations 

This section authorizes the appropriation of such sums as are 

necessary to carry out the activities authorized by S. 344. 

LEGISLATIVE HISTORY

S. 344 was introduced on February 11, 2003, by Senator Akaka, 

for himself and Senator Inouye, and was referred to the Committee 

on Indian Affairs. Senator Reid of Nevada became a cosponsor on 

February 27, 2003, and Senator Stevens of Alaska became a cosponsor on March 17, 2003. A hearing on S. 344 was held before 

the Committee on Indian Affairs on February 25, 2003. S. 344 was 

ordered favorably reported to the full Senate by the Committee on 

Indian Affairs on May 14, 2003. 

A House companion measure, H.R. 665, was introduced on February 11, 2003, by Representative Abercrombie, for himself and 

Representative Case, and was referred to the Committee on Resources. 

In the 107th Congress, S. 746, a bill similar in purpose to S. 344 

was introduced on April 6, 2001, by Senator Akaka, for himself and 

Senator Inouye, and was referred to the Committee on Indian Affairs. On July 24, 2001, S. 746 was ordered favorably reported to 

the full Senate. The Committee report accompanying the bill was 

Senate Report 107–66. 

A House companion measure, H.R. 617, was introduced in the 

House of Representatives by Representative Neil Abercrombie, for 

himself and Representatives Patsy Mink, Eni Faleomavaega, 

James Hansen, Dale Kildee, Nick Rahall, and Don Young, and was 

referred to the Committee on Resources. H.R. 617 was ordered favorably reported to the full House of Representatives on May 16, 

2001. S. 746 and H.R. were not acted upon prior to the sine die adjournment of the 107th session of the Congress. 

In the 106th Congress, a bill similar in purpose to S. 344, S. 

2899, was introduced by Senator Akaka, for himself and Senator 

Inouye, and was referred to the Committee on Indian Affairs. A 

House companion measure to S. 2899, H.R. 4904, was introduced 

in the House of Representatives in the 106th session of the Congress. Five days of hearings were held on S. 2899 and H.R. 4904 

in joint hearings of the House Resources Committee and the Senate 

Indian Affairs Committee in Hawai’i from Monday, August 28, 

2000 through Friday, September 1, 2000. An additional hearing on 

S. 2899 was held in Washington, D.C. on September 13, 2000. S. 

2899 was ordered favorably reported to the full Senate by the Senate Committee on Indian Affairs on September 13, 2000. The Committee report accompanying the bill was Senate Report 106–424. 

H.R. 4904 was ordered favorably reported by the House Resources 

Committee and passed the House on September 26, 2000. H.R. 

45

4904 failed to pass the Senate before the sine die adjournment of 

the 106th session of the Congress. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

The Committee on Indian Affairs, on May 14, 2003, in an open 

business meeting, considered an amendment in the nature of a substitute to S. 344, and ordered the substitute amendment to S. 344 

favorably reported to the Senate. 

COST AND BUDGETARY CONSIDERATIONS

The cost estimate of the Congressional Budget Office on S. 344 

is set forth below:

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, May 30, 2003. 

Hon. BEN NIGHTHORSE CAMPBELL, 

Chairman, Committee on Indian Affairs, U.S. Senate, Washington, 

DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 344, the Native Hawaiian 

Recognition Act of 2003. 

If you wish further details on this estimate, we will lie pleased 

to provide them. The CBO staff contacts are Lanette J. Walker (for 

federal costs), and Marjorie Miller (for the impact on state, local, 

and tribal governments). 

Sincerely, 

BARRY B. ANDERSON

(For Douglas Holtz-Eakin, Director). 

Enclosure. 

S. 344—Native Hawaiian Recognition Act of 2003 

S. 344 would establish a process for a Native Hawaiian government to be constituted and recognized by the federal government. 

CBO estimates that implementing S. 344 would have no significant 

impact on the federal budget. The bill would not affect direct 

spending or revenues. 

S. 344 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act and would impose no costs on state, local, or tribal governments. Enacting this 

legislation could lead to the creation of a new government to represent native Hawaiians. The transfer of any lands or other assets 

to this new government, including lands now controlled by the 

state of Hawai’i, would be the subject of future negotiations. Similarly, federal payments to native Hawaiians following recognition 

of a Native Hawaiian government would depend on future legislation. 

The bill would establish the United States Office for Native Hawaiian Relations within the Department of the Interior (DOI) to coordinate services to native Hawaiians. In addition, S. 344 would establish the Native Hawaiian Interagency Coordinating Group to coordinate federal programs and policies that affect native Hawaiians. Based on information from DOI, CBO expects that the agency 

would require up to five additional employees to implement the 

46

bill. Therefore, CBO estimates that implementing S. 344 would cost 

less than $500,000 a year, subject to the availability of appropriated funds. 

The CBO staff contacts for this estimate are Lanette J. Walker 

(for federal costs), and Marjorie Miller (for the impact on state, 

local, and tribal governments). This estimate was approved by 

Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

EXECUTIVE COMMUNICATIONS

The Committee has not received any communications from the 

Executive branch on S. 344. 

REGULATORY AND PAPERWORK IMPACT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate require each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that S. 344 will have a minimal impact on regulatory or paperwork requirements. 

CHANGES IN EXISTING LAW

The provisions of S. 344 do not effect any change in existing law.

(47)

A P P E N D I X A 

DEMOGRAPHICS OF THE NATIVE HAWAIIAN POPULATION

Housing 

Within the last several years, three studies have documented the 

poor housing conditions that confront Native Hawaiians who either 

reside on the Hawaiian home lands or who are eligible to reside on 

the home lands. 

In 1992, the National Commission on American Indian, Alaska 

Native, and Native Hawaiian housing issued its final report to the 

Congress, ‘‘Building the Future: A Blueprint for Change.’’ The 

Commission’s study compared housing data for Native Hawaiians 

with housing information for other citizens in the State of Hawai’i. 

The Commission found that Native Hawaiians, like American Indians and Alaska Natives, lacked access to conventional mortgage 

lending and home financing because of the trust status of the Hawaiian home lands, and that Native Hawaiians had the worst 

housing conditions in the State of Hawai’i and the highest percentage of homelessness, representing over 30 percent of the State’s 

homeless population. 

The Commission concluded that the unique circumstances of Native Hawaiians require the enactment of new legislation to alleviate and address the severe housing needs of Native Hawaiians and 

recommended that the Congress extend to Native Hawaiians the 

same Federal housing assistance programs that are provided to 

American Indians and Alaska Natives under the Low-Income Rental, Mutual Help, Loan Guarantee Program and Community Development Block Grant programs. Subsequently, the Community Development Block Grant program authority was amended to address 

the housing needs of Native Hawaiians. 

In 1995, the U.S. Department of Housing and Urban Development (HUD) issued a report entitled ‘‘Housing Problems and Needs 

of Native Hawaiians.’’ The HUD report was particularly helpful because it compared the data on Native Hawaiian housing conditions 

with housing conditions nationally and with the housing conditions 

of American Indians and Alaska Natives. 

The most alarming finding of the HUD report was that Native 

Hawaiians experience the highest percentage of housing problems 

in the nation—49 percent—higher than even that of American Indians and Alaska Natives residing on reservations (44 percent) and 

substantially higher than that of all U.S. households (27 percent). 

Additionally, the HUD study found that the percentage of overcrowding in the Native Hawaiian population is thirty-six percent as 

compared to three percent for all other households in the United 

States. 

48

Applying the HUD guidelines, 70.8 percent of Native Hawaiians 

who either reside or who are eligible to reside on Hawaiian home 

lands have incomes which fall below the median family income in 

the United States, and 50 percent of those Native Hawaiians have 

incomes below thirty percent of the median family income in the 

United States. 

Also in 1995, the Hawai’i State Department of Hawaiian Home 

Lands published a Beneficiary Needs Study as a result of research 

conducted by an independent research group. This study found that 

among the Native Hawaiian population, the needs of Native Hawaiians eligible to reside on the Hawaiian home lands are the most 

severe—with 95 percent of home lands applicants (16,000) in need 

of housing, and with one-half of those applicant households facing 

overcrowding and one-third paying more than 30 percent of their 

income for shelter. 

Health status 

Language contained in the 1984 Supplemental Appropriations 

Act, Public Law 98–396, directed the Department of Health and 

Human Services to conduct a comprehensive study of the health 

care needs of Native Hawaiians. The study was conducted under 

the aegis of Region IX of the Department by a consortium of health 

care providers and professionals from the State of Hawai’i in a predominantly volunteer effort, organized by Alu Like, Inc., a Native 

Hawaiian organization. An island-wide conference was held in November of 1985 in Honolulu to provide an opportunity for members 

of the Native Hawaiian community to review the study’s findings. 

Recommended changes were incorporated in the final report of the 

Native Hawaiian Health Research Consortium, and the study was 

formally submitted to the Department of Health and Human Services in December of 1985. The Department submitted the report to 

the Congress on July 21, 1986, and the report was referred to the 

Select Committee on Indian Affairs. 

Because the Consortium report’s findings as to the health status 

of Native Hawaiians was compared only to other populations within the State of Hawai’i, the Select Committee requested that the 

Office of Technology Assessment (OTA), an independent agency of 

the Congress, undertake an analysis of Native Hawaiian health 

statistics as they compared to national data on other United States 

populations. Using the same population projection model that was 

employed in OTA’s April 1986 report on ‘‘Indian Health Care to 

American Indian and Alaska Native Populations,’’ and based on additional information provided by the Hawai’i State Department of 

Health and the Office of Hawaiian Affairs of the State of Hawai’i, 

the Office of Technology Assessment report contains the following 

findings:

The Native Hawaiian population living in Hawai’i consists of two groups, Hawaiians and part-Hawaiians, who 

are distinctly different in both age distributions and mortality rates. Hawaiians comprise less than 5 percent of the 

total Native Hawaiian population and are much older than 

the young and growing part-Hawaiian populations. 

Overall, Native Hawaiians have a death rate that is 34 

percent higher than the death rate for the United States 

49

all races, but this composite masks the great differences 

that exist between Hawaiians and part-Hawaiians. Hawaiians have a death rate that is 146 percent higher than the 

U.S. all races rate. Part-Hawaiians also have a higher 

death rate, but only 17 percent greater. A comparison of 

age-adjusted death rates for Hawaiians and part-Hawaiians reveals that Hawaiians die at a rate 110 percent higher than part-Hawaiians, and this pattern persists for all 

except one of the 13 leading causes of death that are common to both groups. 

As in the case of the U.S. all races population, Hawaiian 

and part-Hawaiian males have higher death rates than 

their female counterparts. However, when Hawaiian and 

part-Hawaiian males and females are compared to their 

U.S. all races counterparts, females are found to have 

more excess deaths than males. Most of these excess 

deaths are accounted for by diseases of the heart and cancers, with lesser contributions from cerebrovascular diseases and diabetes mellitus. 

Diseases of the heart and cancers account for more than 

half of all deaths in the U.S. all races population, and their 

pattern is also found in both the Hawaiian and part-Hawaiian populations, whether grouped by both sexes or by 

male or female. However, Hawaiians and part-Hawaiians 

have significantly higher death rates than their U.S. all 

races counterparts, with the exception of part-Hawaiian 

males, for whom the death rate from all causes is approximately equal to that of U.S. all races males. 

One disease that is particularly pervasive is diabetes 

mellitus, for which even part-Hawaiian males have a 

death rate 128 percent higher than the rate for U.S. all 

races males. Overall, Native Hawaiians die from diabetes 

at a rate that is 222 percent higher than for the U.S. all 

races. When compared to their U.S. all races counterparts, 

deaths from diabetes mellitus range from 630 percent 

higher for Hawaiian females and 538 percent higher for 

Hawaiian males, to 127 percent higher for part-Hawaiian 

females and 128 percent higher for part-Hawaiian males. 

There is thus little doubt that the health status of Native Hawaiians is far below that of other U.S. population 

groups, and that in a number of areas, the evidence is 

compelling that Native Hawaiians constitute a population 

group for whom the mortality rate associated with certain 

diseases exceed that for other U.S. populations in alarming 

proportions. 

Native Hawaiians premise the high mortality rates and 

the incidence of disease that far exceed that of other populations in the United States upon the breakdown of the 

Hawaiian culture and belief systems, including traditional 

healing practices, that was brought about by western settlement, and the influx of western diseases to which the 

native people of the Hawaiian Islands lacked immune systems. Further, Native Hawaiians predicate the high incidence of mental illness and emotional disorders in the NaVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00049 Fmt 6601 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
50

tive Hawaiian population as evidence of the cultural isolation and alienation of the native peoples, in a statewide 

population in which they now constitute only 20 percent. 

Settlement from both the east and the west have not only 

brought new diseases which decimated the Native Hawaiian population, but which devalued the customs and traditions of Native Hawaiians, and which eventually resulted 

in Native Hawaiians being prohibited from speaking their 

native tongue in school, and in many instances, at all.

In 1998, Papa Ola Lokahi, a Native Hawaiian organization which 

oversees the administration of the Federally-authorized Native Hawaiian health care systems, updated the health care statistics from 

the original E Ola Mau report. In addition, on an annual basis, 

Papa Ola Lokahi extrapolates the data on Native Hawaiians gathered yearly by the Hawai’i State Department of Health from the 

Department’s behavioral risk assessment and health surveillance 

survey. The findings from those assessments reveal that—

• With respect to cancer, Native Hawaiians have the highest 

cancer mortality rates in the State of Hawai’i (216 out of every 

100,000 male residents and 191.6 out of every 100,000 female residents), rates that are 21 percent higher than that for the total 

State population (179.0 out of every 100,000 residents) and 64 percent higher than the rate for the total State female population 

(117.0 per 100,000). 

• With respect to breast cancer, Native Hawaiians have the 

highest mortality rates in the State of Hawai’i, and nationally Native Hawaiians have the third highest mortality rates due to breast 

cancer. 

• Native Hawaiians have the highest mortality rates from cancer 

of the cervix and lung cancer in the State of Hawai’i, and Native 

Hawaiian males have the third highest mortality rates due to prostate cancer in the State. 

• For the year 2000, Native Hawaiians had the highest mortality 

rate due to diabetes mellitus in the State of Hawai’i, with fullblooded Hawaiians having a mortality rate that is 518 percent 

higher than the rate for the statewide population of all other races. 

• In 1990, Native Hawaiians represented 44 percent of all asthma cases in the State of Hawai’i for those eighteen years of age 

and younger, and 35 percent of all asthma cases reported, and in 

1999, the Native Hawaiian rate for asthma was 69 percent higher 

than the rate for the total statewide population. 

• With respect to heart disease, the mortality rate for Native Hawaiians from heart disease is 68 percent higher than for the entire 

State of Hawai’i, and Native Hawaiian males have the greatest 

years of productive life lost in the State of Hawai’i. The death rate 

for Native Hawaiians from hypertension is 84 percent higher than 

that for the entire State, and the death rate from stroke for Native 

Hawaiians is 20 percent higher than for the entire State. 

• Native Hawaiians have the lowest life expectancy of all population groups in the State of Hawai’i. Between 1910 and 1980, the 

life expectancy of Native Hawaiians from birth has ranged from 

five to ten years less than that of the overall State population average, and the most recent data for 1990 indicates that Native HaVerDate Jan 31 2003 11:18 Jul 02, 2003 Jkt 019010 PO 00000 Frm 00050 Fmt 6601 Sfmt 6602 E:\HR\OC\SR085.XXX SR085
51

waiians life expectancy at birth is approximately five years less 

than that of the total State population. 

• With respect to prenatal care, as of 1998, Native Hawaiian 

women have the highest prevalence of having had no prenatal care 

during their first trimester of pregnancy, representing 44 percent 

of all such women statewide. Over 65 percent of the referrals to 

Healthy Start in fiscal year 1996 and 1997 were Native Hawaiian 

newborns, and in every region of the State of Hawai’i, many Native 

Hawaiian newborns begin life in a potentially hazardous circumstance. 

• In 1996, 45 percent of the live births to Native Hawaiian mothers were infants born to single mothers. Statistics indicated that 

infants born to single mothers have a higher risk of low birth 

weight and infant mortality. Of all low birth weight babies born to 

single mothers in the State of Hawai’i, 44 percent were Native Hawaiians. 

• In 2001, Native Hawaiian fetal mortality rates comprised 21 

percent of all fetal deaths for the State of Hawai’i. Thirty-seven 

percent of all fetal deaths occurring in mothers under the age of 

eighteen years were Native Hawaiians. 

Education 

In 1981, the Senate instructed the Office of Education to submit 

to Congress a comprehensive report on Native Hawaiian education. 

The report, entitled the ‘‘Native Hawaiian Educational Assessment 

Project,’’ was released in 1983 and documented that Native Hawaiians scored below parity with regard to national norms on standardized achievements tests, were disproportionately represented in 

many negative social and physical statistics indicative of special 

educational needs, and had educational needs that were related to 

their unique cultural situation, such as different learning styles 

and low self-image. 

In recognition of the educational needs of native Hawaiians, in 

1988 the Congress enacted title IV of the Augustus F. HawkinsRobert T. Stafford Elementary and Secondary School Improvement 

Amendments of 1988 (102 Stat. 130) to authorize and develop supplemental educational programs to benefit Native Hawaiians. In 

1993, the Kamehameha Schools Bishop Estate released a ten-year 

update of findings for the Native Hawaiian Educational Assessment Project, finding that despite the successes of the programs established under title IV of the Augustus F. Hawkins-Robert T. 

Stafford Elementary and Secondary School Improvement Amendments of 1988, many of the same educational needs still existed for 

Native Hawaiians. Subsequent reports by the Kamehameha 

Schools Bishop Estate and other organizations have generally confirmed those findings. For example—

(A) educational risk factors continue to start even before 

birth for many Native Hawaiian children, including—

(i) late or no prenatal care; 

(ii) high rates of births by Native Hawaiian women who 

are unmarried; and 

(iii) high rates of births to teenage parents; 

52

(B) Native Hawaiian students continue to begin their school 

experience lagging behind other students in terms of readiness 

factors such as vocabulary test scores; 

(C) Native Hawaiian students continue to score below national norms on standardized education achievement tests at 

all grade levels; 

(D) both public and private schools continue to show a pattern of lower percentages of Native Hawaiian students in the 

uppermost achievement levels and in gifted and talented programs; 

(E) Native Hawaiian students continue to be over represented among students qualifying for special education programs provided to students with learning disabilities, mild 

mental retardation, emotional impairment, and other such disabilities; 

(F) Native Hawaiians continue to be under represented in institutions of higher education and among adults who have completed 4 or more years of college; 

(G) Native Hawaiians continue to be disproportionately represented in many negative social and physical statistics, indicative of special educational needs, as demonstrated by the fact 

that—(1) Native Hawaiian students are more likely to be retained in grade level and to be excessively absent in secondary school; 

(ii) Native Hawaiian students are the highest users of 

drugs and alcohol in the State of Hawai’i; and 

(iii) Native Hawaiian children continue to be disproportionately victimized by child abuse and neglect; and 

(H) Native Hawaiians now comprise over 23 percent of the 

students served by the State of Hawai’i Department of Education, and there are and will continue to be geographically 

rural, isolated areas with a high Native Hawaiian population 

density. 

In the 1998 National Assessment of Educational Progress, Native 

Hawaiian fourth-graders ranked thirty-ninth among groups of students from thirty-nine States and the District of Columbia in reading.

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