69–010 

Calendar No. 567 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–260 

TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE 

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

THE NATIVE HAWAIIAN GOVERNING ENTITY 

FEBRUARY 5, 2008.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 310] 

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

(S. 310) to express the policy of the United States regarding the 

United States relationship with Native Hawaiians and to provide 

a process for the recognition by the United States of the Native Hawaiian governing entity, having considered the same, reports favorably thereon without amendment and recommends that the bill do 

pass. 

PURPOSE

The purpose of S. 310 is to establish a process for the reorganization of a Native Hawaiian government and, when that process has 

been completed in accordance with the Act, to reaffirm the special 

political and legal relationship between the United States and the 

Native Hawaiian governing entity for purposes of carrying on a 

government-to-government relationship. 

BACKGROUND AND HISTORY

S. 310 is the current bill that establishes a process for the reorganization and recognition of a Native Hawaiian governing entity. 

Similar bills have been introduced since 1999. These bills are the 

result of longstanding efforts to address the impacts of the 1893 

overthrow of the Native Hawaiian Kingdom, an event that the 

United States participated in and encouraged. 

The language of S. 310 is identical to legislative language that 

was negotiated between the Hawaii Congressional Delegation and 

officials from the Department of Justice, Office of Management and 

Budget, and the White House in the 109th Congress. The language 


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1 Census Bureau, Hawaii State Data Center, State of Hawaii Data Book. 

2 Id. 

satisfactorily addresses concerns expressed in a July 2005 letter 

from the Administration regarding potential liability of the United 

States involving land claims, the impact of S. 310 on military readiness, gaming, and civil and criminal jurisdiction in Hawaii. 

In 1993, Congress passed an Apology Resolution (P.L. 103–150) 

extending an apology on behalf of the United States to the Native 

Hawaiians for its role in the illegal overthrow of the Native Hawaiian government and committing the United States to support reconciliation efforts between the United States and the Native Hawaiian people. In response to the Apology Resolution, the Departments of the Interior and Justice initiated a process of reconciliation in 1999 by conducting meetings in Native Hawaiian communities. The result of these reconciliation efforts was a joint report, 

From Mauka to Makai: The River of Justice Must Flow Freely, 

from the two Departments in 2000. Since the issuance of the report, the Senators from Hawaii have introduced legislation to implement the findings of the reconciliation report. This Committee 

held several hearings on the matter, and has continued to hold 

hearings each Congress. 

Native Hawaiians are the indigenous, native people of Hawaii 

with whom the United States has a trust responsibility. Congress 

has repeatedly recognized the unique status of Native Hawaiians 

since 1921. The long-standing policy of the United States has been 

to protect and advance Native Hawaiian interests. 

Native Hawaiians continue to suffer the consequences of the 

1893 overthrow of their indigenous government. Today, Native Hawaiians continue to have higher rates of poverty and lower incomes 

than non-Native Hawaiians in Hawaii.1 Establishing an avenue for 

Native Hawaiians to reorganize a government will provide opportunities for Native Hawaiians to exercise self-governance and self-determination and develop their own solutions to the problems faced 

by their communities. It empowers them to preserve their cultural 

resources. 

Native Hawaiian society before european contact 

Native Hawaiians are the indigenous, aboriginal people of the island group that is today the State of Hawaii. Hawaii was originally 

settled by voyagers from central and eastern Polynesia, traveling 

immense distances in double-hulled voyaging canoes and arriving 

in Hawaii perhaps as early as 300 A.D. 

Hundreds of years of Hawaiian isolation followed the end of the 

era of ‘‘long voyages.’’ 2 During these centuries, the Native Hawaiians evolved a 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. There 

was no concept of private land ownership in early Hawaiian 

thought. The communal nature of the economy and the structure 

of the society resulted in values strikingly different from those 

prevalent in more competitive western economies and societies. 

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


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3This estimate is conservative; other sources place the number at one million. David E. 

Stannard, Before the Horror; the Population of Hawaii on the Eve of Western Contact 59 (1989). 4 E.S. & Elizabeth G. Handy, Native Planters in Old Hawaii 331 (1972). 

5Fuchs, supra at 8–9. 6Fuchs, supra at 10–11; Kuykendall & Day, supra at 41–3; MacKenzie supra at 5. 7Fuchs supra at 18–9; MacKenzie supra at 6, 9–10. 8Felix S. Cohen, Handbook of Federal Indian Law 799 (2d ed. 1982). 

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

first European explorers.3

European contact 

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

white foreigner, Captain James Cook of the British Royal Navy, 

landed. Other foreign vessels soon followed on journeys of exploration or trade.4 In the years following Cook’s arrival, warring Hawaiian chiefs used foreign weapons and fought for control of Hawaii. In 1810, the Native Hawaiian political, economic and social 

structure was unified under a monarchy led by King Kamehameha 

I. The authority of the King was derived from the gods, and he was 

a trustee of the land and other natural resources of the islands 

which were held communally. 

Western contact had an immediate and precipitous decline of the 

Native Hawaiian population. Between Cook’s arrival in 1778 and 

1820, disease, famine, and war killed more than half of the Native 

Hawaiian population. By 1866, only 57,000 Native Hawaiians lived 

on the islands, compared to the stable pre-1778 population of at 

least 300,000. The impact of Western contact 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 to instill traditional values and practices. The result was 

a rending of the social fabric. 

This devastating population loss was accompanied by cultural destruction. Western sailors, merchants, and traders did not abide by 

the Hawaii kapu (taboos) system or religious practices. As a result, 

the chiefs began to imitate the foreigners whose ships and arms 

were technologically more advanced than their own.5 The kapu 

were abandoned soon after the death of Kamehameha I. 

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 to obtain the supplies 

and valuable sandalwood needed for such trades. As Hawaii’s stock 

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

whaling and other mercantile activities.6 More than four-fifths of 

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

in American hands.7 Even the communal ownership and cultivation 

of the land was soon replaced by a western system of individual 

property ownership. 

The mass privatization of Native Hawaiian land 

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

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

size.8 These influential westerners sought to limit the absolute 

power of the Hawaiian King over their legal rights and to impleVerDate Aug 31 2005 14:00 Feb 06, 2008 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR260.XXX SR260

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9MacKenzie supra at 6. 

10MacKenzie, supra at 6–9. The maka’ainana failed to secure a great portion of the land for 

a number of reasons. Many 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 new chief, were unable 

to farm without the traditional common cultivation and irrigation of large areas, were killed in 

epidemics or migrated to cities. Id., at 8. 11S. Exec. Doc. No. 52–77, 40–41 (1893) (describing 1842 statement). 

ment property law so that they could accumulate and control land. 

These goals were achieved as a result of foreign pressure.9

The Westerners’ efforts were successful in 1840, when the King 

of Hawaii promulgated a new constitution, establishing a hereditary House of Nobles and an elected House of Commons. In 1842, 

the King authorized the Great Mahele, the division of Hawaii’s 

communal land system into private ownership between himself and 

his royal successors, the chiefs and the Hawaiian government. Ultimately, the Great Mahele led to the transfer of substantial 

amounts of land into western hands. In 1848, the King conveyed 

about 1.5 million of the approximately 4 million acres in the islands to the konohiki (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 Hawaii (‘‘Government Lands’’). 

All lands remained subject to the rights of native tenants. However, in 1850, after the division was accomplished, an act was 

passed permitting non-natives to purchase land from Native Hawaiians in fee simple. This resulted in a dramatic concentration of 

land ownership in plantations, estates, and ranches owned by nonnatives. The law implementing the Great Mahele contemplated 

that the makaainana (commoners) would receive a substantial portion of the distributed lands 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 Native Hawaiian farmers.10

United States enters into treaties with Native Hawaiian government 

Ultimately, the 2,000 westerners who lived on the islands obtained much of the profitable acreage from the commoners and 

chiefs. The mutual interests of Americans living in Hawaii and 

those living in the United States became increasingly clear. American merchants and planters in Hawaii wanted access to mainland 

markets and protection from European and Asian domination. The 

United States developed a military and economic interest in placing Hawaii within its sphere of influence. 

Thus, in order to protect its interests, the United States and Hawaii entered into a series of four treaties. American advisors urged 

the King to pursue international recognition of Hawaiian sovereignty, backed up by an American guarantee of continued independence. 

America’s political influence in Hawaii was heightened by the 

rapid growth of the island sugar industry which followed the 

Mahele. The 1875 Convention on Commercial Reciprocity 11 eliminated the American tariff on sugar from Hawaii and virtually all 

tariffs that Hawaii had placed on American products. Critically, it 

also prohibited Hawaii from giving political, economic, or territorial 

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12S. Rep. No. 53–277 at 21 (1894) (emphasis added). 

ty was extended in 1887, the United States also obtained the right 

to establish a military base at Pearl Harbor. 

Overthrow of the Native Hawaiian government 

In 1887, King Kalakaua appointed a prime minister who was 

supported by the Native Hawaiian people and who was opposed to 

granting a military base at Pearl Harbor as a part of the Reciprocity Treaty. The business community, backed by the Honolulu 

Rifles, a military group formed by the children of American missionaries, forced the prime minister’s resignation and the enactment of a new constitution. The new constitution, often referred to 

as the Bayonet Constitution due to the use of militant force, reduced the King to a figure of minor constitutional importance. It 

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

were citizens of the Hawaiian Kingdom. It also 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. This resulted in representatives of the westerners taking control of the legislature. 

In 1891, Queen Liliuokalani came to power. Queen Liliuokalani 

supported promulgating a new constitution that would restore absolute control over the legislature to the reigning sovereign. Realizing that the Hawaiian monarchy posed a continuing threat to the 

unimpeded pursuit of their interests, the westerners formed a Committee of Public Safety to overthrow the Kingdom of Hawaii. Mercantile and sugar interests also favored annexation by the United 

States to ensure access on favorable terms to mainland markets 

and protection from Asian conquest. The American annexation 

group collaborated closely with the United States’ Minister in Hawaii. 

On January 16, 1893, at the order of United States’ Minister 

John Stevens, a contingent of United States Marines from the USS 

Boston marched through Honolulu to a building located near both 

the government building and the palace. The next day local nonHawaiian revolutionaries seized the government building and demanded that Queen Liliuokalani abdicate the monarchy. Minister 

Stevens immediately recognized the rebels’ provisional government 

and placed it under the United States’ protection. 

Upon hearing the news, United States President Benjamin 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 Grover Cleveland 

assumed office and withdrew the treaty; he also demanded that the 

Queen be restored. However, the Senate Foreign Relations Committee issued a report ratifying Stevens’ actions and recognizing 

the provisional government of Hawaii. In doing so, the Senate Foreign Relations Committee described the relations between the 

United States and Native Hawaiian government as unique because 

‘‘Hawaii has been all the time under a virtual suzerainty [when a 

nation controls another nation] of the United States.’’ 12


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13Kuykendall & Day supra at 183. 14 Id at 184; MacKenzie supra at 13. 15 Noenoe Silva, Ke Ku’e Loa Nei Makou: Kanaka Maoli Resistance to Colonization 170 (1999) 

(Silva). 16W.A. Russ, The Hawaiian Republic (1894–1898) 198, 209 (1961). The resolutions were 

signed by 21,269 people, representing more than 50% of the Native Hawaiian population at that 

time. Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y 

Rev. 95 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 Hawaii 273–82 (1998); Silva supra at 184–206. 17Kuykendall & Day, supra at 188; MacKenzie, supra at 14. 18Fuchs, supra at 36. 19 Joint Resolution for Annexing the Hawaiian Islands to the United States, ch. 55, 30 Stat. 

750, 751 (1898) (Annexation Resolution). 20 Act of April 30, 1900, ch. 339, 31 Stat. 141 (1900) (Organic Act). 

Hawaii becomes a State of the Union 

As a result of this impasse between President Cleveland and the 

Senate, the United States government neither restored the Queen 

nor annexed Hawaii. The Provisional Government of Hawaii thus 

called a constitutional convention whose composition and members 

it controlled.13 The convention promulgated a constitution for the 

new Republic of Hawaii that imposed property and income qualifications as prerequisites for the franchise and for holding elected 

office.14 Article 101 of the Constitution of the Republic of Hawaii 

required prospective voters to swear an oath of support to the Republic and to declare 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, who were 

loyal to their Queen, refused to swear such an oath and were effectively disenfranchised.15

In 1896, President William McKinley was elected as President of 

the United States; he quickly sent the Senate another annexation 

treaty. Simultaneously, the Native Hawaiian people adopted resolutions which they sent to Congress stating that they opposed annexation and wanted to be an independent kingdom.16 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. 

However, pro-annexation forces in the House of Representatives 

introduced a Joint Resolution of Annexation in that Chamber of 

Congress. Adoption of the Joint Resolution required only a simple 

majority in each House of Congress. The balance was tipped in 

favor of the Resolution 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.17 In July 1898, the Joint Resolution was enacted, becoming ‘‘the fruit of approximately seventy-five years of 

expanding American influence in Hawaii.’’ 18

On August 12, 1898, the Republic of Hawaii ceded sovereignty 

and conveyed title to its public lands, including the Government 

and Crown Lands, to the United States.19 In 1900, Congress passed 

the Hawaii Organic Act,20 establishing a Hawaiian territorial government. Ultimately, Congress admitted Hawaii to the Union as 

the fiftieth state with the enactment of the Admission Act in 1959. 


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RECOGNITION BY THE UNITED STATES OF OBLIGATIONS TO NATIVE

HAWAIIANS

For over two hundred 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, 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 which the United States subsequently 

acquired. 

The United States has recognized again and again that Native 

Hawaiians are entitled to special rights and considerations, and the 

Congress has enacted laws to give expression to the respective obligations to Native Hawaiians. As evidence of this special relationship, Congress has enacted over one hundred fifty statutes addressing the conditions of Native Hawaiians and providing them with 

benefits. The recognition of a special relationship with Native Hawaiians is not new, as Congress and the United States have historically treated Native Hawaiians in a manner similar to the other 

indigenous groups of America. 

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. Prior to the enactment of this law, Congress received testimony from officials of the Executive Branch analogizing the federal 

government’s relationship and responsibilities to Native Hawaiians 

as being similar to those to other Native Americans—the federal 

government as trustee and the Native American as the ward. 

Beginning in the early 1800’s, large amounts of land were made 

available to foreigners and were eventually leased to them in order 

to cultivate pineapple and sugar cane. Large numbers of Native 

Hawaiians were forced off the lands that they had both cared for 

and traditionally occupied. As a result, many Native Hawaiians 

moved into the urban areas, often lived in severely overcrowded 

tenements and rapidly contracted diseases to which they had no 

immunities. 

By 1920, due to the dramatic decline in the number of Native 

Hawaiians in the decades leading up to and following the overthrow, there were many people who concluded that the native people of Hawaii were a ‘‘dying race.’’ 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 island who are our wards, I should say, and 


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21 H.R. Rep. No. 66–839, 66th Cong., 2d Sess., at 4 (1920). 22 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 Hawaii , February 

3, 4, 5, 7, and 10, 1920, at 129–130 (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,’’ 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, and citing a Solicitor’s opinion stating 

that the setting aside of public lands within the Territory of Hawaii would not be unconstitutional, relying in part on the congressionally authorized allotment to Indians as precedent for 

such an action); 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 Representatives Dowell, and Humphreys, making the same analogy and rejecting the objection that ‘‘we have no government or 

tribe to deal with here’’). 23 Id. at 39. Wise’s testimony was also quoted and adopted in the House Committee on the 

Territories’ report to the full U.S. House of Representatives, H. Rep. No. 66–839, at 4. 24 59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio Kalaniana’ole). 25 H. Rep. No. 66–839, at 5 (statement of Secretary Lane). 26 Hawaiian Homes Commission Act, 203. 

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

in numbers and many of them are in poverty.21

Secretary 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.22

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

of the Territory of Hawaii, testified before the United States House 

of Representatives as follows: 

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 big 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.23

In 1920, Prince Jonah Kuhio Kalaniana’ole (Prince Kuhio), the 

Territory’s sole delegate to Congress, testified before the full U.S. 

House of Representatives: ‘‘The Hawaiian race is passing. And if 

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

people, my people, will pass from the face of the earth.’’ 24 Secretary 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.25

The effort to ‘‘rehabilitate’’ the dying race of Native Hawaiians 

by returning them 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 the Ceded Lands for homesteading by 

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27 H. Rep. No. 66–839, at 11 (1920). 28 Id. at 6–7. 29 59 Cong. Rec. 7452–3 (1920) (statement of Delegate Jonah Kuhio Kalaniana’ole). 30 25 U.S.C. 331–334, 339, 342, 348, 349, 381 (1998). 31Office of State Planning, Office of the Governor, State of Hawaii, Pt. I, Report on Federal 

Breaches of the Hawaiian Home Lands Trust, 4–6 (1992). 

ments granting Indians . . . special privileges in obtaining and 

using the public lands.’’ 27

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

recognized that, prior to the Great Mahale, Hawaiians had a onethird interest in the lands of the Kingdom. The Committee reported 

that the Act was necessary to address the way Hawaiians had been 

short-changed in prior land distribution schemes.28 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 people, were taken over by 

the Republic of Hawaii by an article of [its] constitution 

...

* * * * * * * 

By annexation these lands became a part of the public 

lands of the United States, and by the provisions of the organic act under the custody and control of the Territory of 

Hawaii. 

* * * * * * * 

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 

...29

The 1921 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,30 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 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.31

During the remainder of the Territorial period and the first two 

decades following statehood, administration of the Hawaiian home 

lands program was inadequately funded, and the best lands were 

leased 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 program an illusory 


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32 Id., at 12–18. 33Pub. L. No. 86–3, 73 Stat. 4 (March 18, 1959) (the ‘‘Admission Act’’). 34 Admission Act, § 4, 73 Stat. at 5. 

promise for most Native Hawaiians.32 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. 

The Hawaii Admission Act 

As a condition of statehood, the Hawaii Admission Act 33 required 

the State of Hawaii to adopt the Hawaiian Homes Commission Act 

and imposed a public trust on the lands ceded by the United States 

to the new State. The 1959 Compact between the United States 

and the People of Hawaii by which Hawaii was admitted into the 

Union expressly provides that: 

As a compact with the United States relating to the 

management and disposition of the Hawaiian home lands, 

the Hawaiian Homes Commission Act, 1920, as amended, 

shall be adopted as a provision in section 7, subsection (b) 

of this Act, subject to amendment or repeal only with the 

consent of the United States, and in no other manner: Provided, That (1) the Hawaiian home-loan fund, the Hawaiian home-operating fund, and the Hawaiian home-development fund shall not be reduced or impaired by any such 

amendment, whether made in the constitution or in the 

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

by officers other than those charged with the administration of said Act, shall not be increased, except with the 

consent of the United States; (2) that any amendment to 

increase the benefits to lessees of Hawaiian home lands 

may be made in the constitution, or in the manner required 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 in 

carrying out the provisions of said Act.34

* * * * * * * 

The lands granted to the State of Hawaii by subsection 

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

States under subsection (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 


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35 Id., § 5(f), 73 Stat. at 6 (emphasis added). 36With the adoption of its new Constitution, the State of Hawaii assumed the Federally-delegated responsibility of administering the Ceded Lands in accordance with the 5 purposes set 

forth in the Admission Act and of managing the 203,500 acres of land that had been set aside 

by Congress in 1921 for the benefit of the native people of Hawaii under the Hawaiian Homes 

Commission Act. See Haw. Const. Art. XII, § § 2 and 4, and Art. XVI, 7, respectively. 37 Han v. United States, 45 F. 3d 333, 337 (9th Cir. 1995). 

their use for any other object shall constitute a breach of 

trust for which suit may be brought by the United 

States.35

These explicit delegations of Federal authority to be assumed by 

the new State were not discretionary or permissive. The sections of 

the Admission Act quoted above 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 

which reserved to Congress the right to amend that Act.36 The Federal courts have noted that the United States retains the authority 

to bring an enforcement action against the State of Hawaii for 

breach of the section 5(f) trust.37

Treatment of Native Hawaiians compared to other indigenous 

groups 

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

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 declared citizens of the United 

States until 1924. A twenty-year restraint on the alienation of allotted lands was typically imposed. This restraint prevented the 

lands from being subject to taxation by the states, but the restraint 

could be lifted if an individual Indian was deemed to be ‘‘civilized.’’

Once the restraint on alienation was lifted and individual Indian 

lands became subject to taxation, Indians who could not pay the 

land taxes had their land seized. 

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’’ native people. The fact 

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

native people of Hawaii in an effort to ‘‘rehabilitate a dying race’’ is thus readily understandable in the context of the prevailing Federal Indian policy in 1921. 

In 1959, when the State of Hawaii was admitted into the Union, 

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

the indigenous people and to delegate those responsibilities to the 


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38 ‘‘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 existence 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 its 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). 39Morton v. Mancari, 427 U.S. 535 (1974). 40Delaware 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 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. 41 United States v. Sandoval, 231 U.S. 28 (1913). 

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. Similarly, in 1959 the United States transferred 

most of its responsibilities related to administering the Hawaiian 

Homes Commission Act to the new State of Hawaii. In addition the 

United States imposed a public trust upon the lands that were 

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

Constitutional source of Congressional authority 

The United States Supreme Court has often addressed the scope 

of Congress’ constitutional authority to address the conditions of 

native people and thus has ingrained Congress’ role.38 Although 

the authority has been characterized as ‘‘plenary,’’ 39 the Supreme 

Court has addressed the broad scope of the Congress’ authority.40

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.41 The United States interactions with 

indigenous peoples have varied from group to group. The only general principles that apply to relations with the first inhabitants of 

this land is that they were dispossessed of their lands. They were 

often relocated to other lands set aside for their benefit. Their subsistence rights have been recognized under treaties and laws, but 

have not always been protected nor preserved. Although the relationship between the United States and its native people has not 

followed a fixed course, it is a history that reveals the special status of the indigenous people in America. 

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 

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

groups: American Indians, Alaska Natives and Native Hawaiians. 


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42See Atr. III, Treaty of March 30, 1867, 15 Stat. 539. 43See S. Rep. 107–66, at 35, footnotes 43 and 44 (2001); see also footnote 48, below. 44 Jon M. Van Dyke, The Political Status of Native Hawaiian People, 17 Yale L. & Pol’y Rev. 

95 (1998) at 146 (citing Alaska Pac. Fisheries v. United States, 248 U.S. 78 (1918); Native Village of Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992); Alaska Chapter, Assoc. Gen. Contractors 

of America v. Pierce, 694 F.2d 1162 (9th Cir. 1982); Pence v. Kleppe, 529 F.2d 135 (9th Cir. 

1976); Alaska v. Annette Island Packing Co., 289 F. 671 (9th Cir. 1923); Cape Fox Corp. v. 

United States, 4 Cl. Ct. 223 (1983); Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979); 

Eric v. HUD, 464 F. Supp. 44 (D. Alaska 1978); Naliielua v. State of Hawaii, 795 F. Supp. 1009 

(D.Haw. 1990); and Ahuna v. Department of Hawaiian Home Lands, 640 P.2d 1161, 1168–69 

(Haw. 1982). 45See 42 U.S.C. 11701(17) (‘‘The authority of the Congress under the United States Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States 

includes the authority to legislate in matters affecting the native peoples of Alaska and Hawaii’’). 46 A.M. Joseph, Jr., The Indian Heritage of America 57 (rev. ed. 1991); see also Oxford Dictionary (1st ed.) (‘‘OED’’), ‘‘Indian’’ (‘‘The Eskimos * * * are usually excluded from the term 

***’’). 47 As Hawaii Attorney General Mark J. Bennett stated in his written testimony submitted at 

the Committee’s hearing on S.310 on May 3, 2007 (citing Kuykendall’s The Hawaiian Kingdom), 

Captain Cook and his crew, when arriving at the Hawaiian Islands in 1778, referred to the naContinued 

The Congress’s recognition of its power over Alaska Natives since 

the acquisition of the Alaskan territory,42 reflects its intent to exercise its constitutional power and responsibility regarding all Native 

American groups within the United States. 

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. However, it seems unlikely that the Framers would recognize such a 

technical distinction in the common understanding of the time. Eskimos, like Native Hawaiians were aboriginal peoples; therefore, 

they were ‘‘Indians.’’ 43 Courts have supported this construction by 

recognizing ‘‘that the term ‘Indians’ includes all native people in 

the United States.’’ 44 Congress’s special power over aboriginal peoples is well established.45

During the Founding Era and Constitutional Convention, the 

terms ‘‘Indian’’ and ‘‘tribe’’ were used to encompass the diversity of 

aboriginal peoples of the ‘‘New World’’ and the wide range of their 

social and political organizations. The Framers drafted the Constitution not to limit Congress’s power over Indians, but to make 

clear the supremacy of Congress’s power over Indian affairs. The 

Congress has exercised the power to promote the welfare of all Native American peoples, and foster the evolving 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 selfgovernance of Indian peoples. 

Modern scholars might be puzzled whether Eskimos were Indians, or a separate and somewhat mysteriously distinct people on 

earth.46 Others might question whether the native people of Hawaii are ‘‘Indians.’’ Such distinctions would likely have been irrelevant to the Framers. The ‘‘Indians’’ were many peoples, with distinct languages, cultures and socio-political organizations. Whatever their distinct cultures and governments, they were all ‘‘Indians,’’ for they were aboriginal inhabitants of the ‘‘New World.’’ 47


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tive people greeting his ships as ‘‘Indians.’’ See, Testimony of Hawaii Attorney General Mark 

J. Bennett Before the U.S. Senate Committee on Indian Affairs, May 3, 2007, at footnote 11. 48Worcester v. Georgia, 31 U.S. 515 (1832) at 559. 49 Id at 559–60. 50 United States v. Antelope, 430 U.S. 641, 646 (1972); see Fisher v. District Court, 424 U.S. 

382, 389 (1976); Morton v. Mancari, 417 U.S. 535, 553–4 (1974); see also Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993); United States v. Mazurie, 419 U.S. 544, 557 

(1975). 51Santa 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, 222–3 (1897). 52 United States v. John, 437 U.S. 634, 652–3 (1978); Moe v. Confederated Salish & Kootenai 

Tribes, 425 U.S. 463, 480 (1976). 53See 25 C.F.R. Part 83. 54William 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 

The important distinction between European settlers and Native 

American peoples, one which both groups acknowledged and understood, was political. The nations-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. 

Indian tribes and blood quantum 

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.’’ 48 The race of Indian peoples was constitutionally irrelevant. Native peoples were ‘‘nations,’’ 49 and the relationship between the United States and the natives reflected a political settlement between conquered and conquering nations. 

The Supreme Court has repeatedly made clear that Indian tribes 

are the political and familial heirs to ‘‘once sovereign political communities,’’ not ‘‘racial groups.’’ 50 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.’’ 51

Like the 561 Indian tribes currently recognized by the United 

States, Native Hawaiians are a group of people defined by their 

common descent from an ancestral class. Congress may recognize 

new aggregations of Native Americans, so long as such legislation 

is rationally related to the fulfillment of Congress’s trust obligation 

to Indian people.52

The significance of ‘‘federal recognition’’

It is important to recognize the legal distinctions that have been 

drawn in contemporary times between Indian tribes that are ‘‘acknowledged’’ by the Department of the Interior 53 or ‘‘recognized’’ by Congress and those who are not ‘‘acknowledged’’ or ‘‘recognized.’’ ‘‘Recognized’’ tribes have a direct government-to-government relationship with the United States and are thereby eligible for various 

federal benefits, whereas Native American groups that are not recognized do not have such a government-to-government relationship. 

This 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,’’ 54 thirteen years after the enactVerDate Aug 31 2005 14:00 Feb 06, 2008 Jkt 069010 PO 00000 Frm 00014 Fmt 6659 Sfmt 6602 E:\HR\OC\SR260.XXX SR260

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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). 55 25 C.F.R., Part 83. Quinn 1992, at 40–41. 56See 25 C.F.R. 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 Hawaii, 764 F.2d 623 (9th Cir. 1985); Kahawaiolaa v. Norton, 222 F.Supp. 2d 1213 (D. Haw. 

2002). 

ment 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.55

Although the authority of Congress to formally ‘‘recognize’’ tribes 

through legislation is unquestioned, the Department of the Interior’s regulations for the administrative process for the acknowledgement of tribes pursuant to 25 C.F.R. Part 83 exclude Native 

Hawaiians from that process, and thus legislation is the only mechanism available to Native Hawaiians at this time.56

NEED FOR LEGISLATION

The primary injury that S. 310 is intended to address is the loss 

of a sovereign governing entity resulting from the 1893 overthrow 

of the government of the Kingdom of Hawaii, an event made possible by the actions of United States officials and citizens. 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. However, it has not 

yet acted to provide a process for the reorganization of a Native 

Hawaiian governing entity. S. 310 provides authority for that process. 

In 1978, in furtherance of the provisions of the Admission Act, 

the citizens of the State of Hawaii amended the State constitution 

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

amended, provides that the OHA is to be governed by nine trustees 

who are Native Hawaiian and who are to be elected by Native Hawaiians. In accordance with laws enacted by the State following the 

1978 constitutional amendment, OHA administers programs and 

services using revenues derived from the Ceded Lands consistent 

with the conditions of Sec. 5 of the Admission Act and Public Law 

88–233. 

OHA’s use of these revenues to provide programs and services for 

Native Hawaiians reflects the provision in section 5(f) of the Admission Act requiring that the ceded lands and the revenues derived therefrom be held by the State of Hawai’i as a public trust 

for five stated 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 the approximately 

203,500 acres of land set aside for Native Hawaiians pursuant to 

the Hawaiian Homes Commission Act. 

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

a ruling in the case of Rice v. Cayetano, holding unconstitutional 

the eligibility requirements for voting in elections of OHA trustees. 

The Court held that because OHA is an agency of the State of HaVerDate Aug 31 2005 14:00 Feb 06, 2008 Jkt 069010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR260.XXX SR260

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waii, funded in part by appropriations made by the State legislature, the election for the trustees of the OHA must be open to all 

citizens of the State of Hawaii who are otherwise eligible to vote 

in statewide elections. 

The State of Hawaii had argued in Cayetano that the state law 

excluding non-Hawaiians from voting in OHA elections should be 

analyzed in accordance with the Court’s rule enunciated in Morton 

v. Mancari, wherein the Court upheld against an equal protection 

challenge the policy for Indian preference in hiring within the Bureau of Indian Affairs. The Cayetano Court rejected the State’s 

Mancari argument, reasoning as follows: 

If a non-Indian lacks a right to vote in tribal elections, 

it is for the reason that such elections are the internal affair of a quasi sovereign. The OHA elections, by contrast, 

are the affair of the State of Hawaii, established by the 

State Constitution, responsible for the administration of 

state laws and obligations.’’

Following the Supreme Court’s decision in Cayetano, 

new civil actions were filed challenging the constitutionality of other aspects of OHA as well as Hawaii’s provision of programs and services to Native Hawaiians. In 

Arakaki v. State of Hawaii, the Court of Appeals for the 

Ninth Circuit ruled that the State law requiring candidates for the OHA Board of Trustees to be Native Hawaiian was unconstitutional on grounds similar to those in 

Cayetano. Accordingly, all citizens of the State of Hawaii 

may now vote for the candidates for the nine trustee positions and may themselves be candidates for these offices. 

Other civil actions filed since the Cayetano decision have 

gone beyond the voting rights issues raised in that case 

and in Arakaki v. Hawaii. These other cases target the 

provision of programs and services to Native Hawaiians by 

OHA, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands on the grounds that providing benefits exclusively to Native Hawaiians is racially 

discriminatory under the Equal Protection clauses of the 

Fifth and Fourteenth Amendments. 

S. 310 establishes a process that would lead eventually 

to the formation of a native governing entity that would 

have a government-to-government relationship with the 

United States. Eventually, the programs and services or a 

portion of them now provided by OHA in furtherance of 

the provisions of the Admission Act may likely be provided 

instead by the Native Hawaiian governing body to its 

members. That is, to persons who have a political affiliation with a federally recognized Native Hawaiian governing entity with which the United States would have a 

formal, government-to-government relationship, so that 

equal protection challenges to those programs and services 

would be subject to the analysis of Morton v. Mancari. 

Accordingly, apart from providing Native Hawaiians 

with a vehicle for reorganizing a governing entity through 

which they might, as have other native peoples in the 

United States, pursue the goals of self-determination and 


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greater control over the future of their own resources and 

culture, another purpose of S. 310 is to assure that the 

longstanding Congressional policy of protecting and advancing the interests of Native Hawaiians—dating back at 

least to the 1921 Hawaiian Homes Commission Act—and 

the bargained-for conditions that were made part of the 

1959 compact that led to the admission of the State of Hawaii into the Union, are not ultimately frustrated as a result of these recent legal challenges. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 sets forth the short title for the bill as the ‘‘Native Hawaiian Government Reorganization Act of 2007.’’

Section 2. Findings 

Section 2 sets forth findings, including findings regarding the history of Native Hawaiians; their interactions 

with the United States; Congress’s authority over Native 

Hawaiians; Congress’s past declaration of the political and 

legal relationship with Native Hawaiians; and Native Hawaiians’ expression of their rights to self-determination, 

self-governance, and economic self-sufficiency. 

Section 3. Definitions 

Section 3 sets forth definitions of terms used in this Act, 

including definitions for the term ‘‘Aboriginal, Indigenous, 

Native People’’ and ‘‘Native Hawaiian.’’ The term ‘‘Aboriginal, Indigenous, Native People’’ is defined as the ‘‘people 

whom Congress has recognized as the original inhabitants 

of the lands that later became part of the United States 

and who exercised sovereignty in the areas that later became part of the United States.’’ The term ‘‘Native Hawaiian’’ is generally defined as ‘‘an individual who is 1 of the 

indigenous, native people of Hawaii and who is a direct 

lineal descendant of the aboriginal, indigenous, native people who resided in the islands that now comprise the State 

of Hawaii on or before January 1, 1893; and occupied and 

exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii ; or 

an individual who is 1 of the indigenous, native people of 

Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act (42 Stat. 

108, chapter 42) or a direct lineal descendant of that individual.’’

Section 4. United States policy and purpose 

Section 4 reaffirms policies of the United States, including that Native Hawaiians are indigenous, native people; 

the United States has a political and legal relationship 

with Native Hawaiians; that Congress has the authority 

under Article I, section 8, clause 3 of the United States 

Constitution to enact legislation to address the conditions 

of Native Hawaiians and has done so in more than 150 


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Federal laws; that Native Hawaiians have an inherent 

right to autonomy in their internal affairs, an inherent 

right of self-determination and self-governance, the right 

to reorganize a Native Hawaiian governing entity, and the 

right to become economically self-sufficient; and that the 

United States shall continue to engage in the process of 

reconciliation and political relations with Native Hawaiians. 

This section also sets forth the purpose of the Act, which 

is to provide a process for the reorganization of the single 

Native Hawaiian governing entity and the reaffirmation of 

the special political and legal relationship between the 

United States and that Native Hawaiian governing entity 

for purposes of continuing a government-to-government relationship. 

Section 5. United States Office for Native Hawaiian Relations 

Section 5 establishes the United States Office for Native 

Hawaiian Relations (Office) in the Office of the Secretary 

of the Department of Interior and sets forth the duties of 

the Office. The duties include continuing the process of 

reconciliation with Native Hawaiians; effectuating and coordinating the political and legal relationship between the 

Native Hawaiian governing entity and the United States; 

consulting with the Native Hawaiian governing entity before taking any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or 

lands; consulting with the Interagency Coordinating 

Group, other Federal agencies, and the State of Hawaii on 

policies, practices, and proposed actions affecting Native 

Hawaiian resources, rights, or lands; and preparing and 

submitting an annual report containing certain information to specified Committees of Congress and providing 

recommendations for any necessary changes to Federal 

law or regulations. 

This section does not apply to the Department of Defense but the Secretary of Defense may designate one or 

more officials as liaison to the Office. 

Section 6. Native Hawaiian Interagency Coordinating Group 

Section 6 establishes the Native Hawaiian Interagency Coordinating Group, which is to be composed of officials from each Federal agency that administers Native Hawaiian programs, establishes or implements policies that affect Native Hawaiians, or 

whose actions may significantly or uniquely impact Native Hawaiian resources, rights, or lands, and the Office for Native Hawaiian 

Relations. The specific duties of the Interagency Coordinating 

Group are set forth but, generally, the Group will coordinate Federal programs and policies affecting Native Hawaiians and consult 

with the Native Hawaiian governing entity. 

This section does not apply to the Department of Defense but the 

Secretary of Defense may designate one or more officials as liaison 

to the Interagency Coordinating Group. 


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Section 7. Process for the reorganization of the Native Hawaiian 

Governing Entity and the reaffirmation of the special political 

and legal relationship between the United States and the Native Hawaiian Governing Entity 

Section 7 addresses the process for the reorganization of the Native Hawaiian governing entity and provides for the reaffirmation 

of the political and legal relationship between the United States 

and the Native Hawaiian governing entity. 

This section recognizes the right of Native Hawaiians to reorganize a single Native Hawaiian governing entity to provide for their 

common welfare and to adopt appropriate organic governing documents. A Commission composed of 9 members is established to prepare and maintain a roll of the adult members of the Native Hawaiian community who elect to participate in the reorganization of 

a single Native Hawaiian governing entity and to certify that the 

adult members of the Native Hawaiian community, who have submitted sufficient documentation and are proposed for inclusion on 

the roll, meet the definition of ‘‘Native Hawaiian.’’ Commission members will be appointed by the Secretary of the 

Interior not later than 180 days after the date of enactment of the 

Act. In making an appointment, the Secretary must take into consideration any recommendation made by any Native Hawaiian organization. Commission members must have at least 10 years of 

experience in the study and determination of Native Hawaiian genealogy and an ability to read and translate into English documents 

written in the Hawaiian language. 

The Commission will receive compensation for its work and may 

appoint personnel as necessary to enable the Commission to perform its duties. An employee of the Federal government may be detailed to the Commission. 

Duties of the Commission include preparing and maintaining a 

roll of the adult members of the Native Hawaiian community and 

certifying to the Secretary that each of the adult members proposed 

for inclusion on the roll meet the definition of ‘‘Native Hawaiian’’ set forth in this Act. The certified roll shall be published in the 

Federal Register. An appeal mechanism may be established by the 

Secretary of the Interior for any person whose name is excluded 

from the roll but who claims to meet the definition of ‘‘Native Hawaiian.’’ The Secretary is responsible for updating the roll. 

The adult members listed on the certified roll may develop criteria for candidates to serve on the Native Hawaiian Interim Governing Council, determine the structure of the Council, and elect 

members of the Native Hawaiian community to serve on the Council. This section sets forth the powers and activities of the Council, 

which include developing organic governing documents for the Native Hawaiian governing entity and holding elections to ratify such 

organic documents. 

Following ratification, the organic governing documents shall be 

submitted to the Secretary. The Secretary must certify that the organic documents contain certain information, including criteria for 

citizenship in the Native Hawaiian governing entity; civil rights 

protection for citizens of the Native Hawaiian governing entity and 

all persons affected by the exercise of governmental powers and authorities by the Native Hawaiian governing entity; and that the organic documents are consistent with applicable Federal law and 


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the special political and legal relationship between the United 

States and the indigenous, native people of the United States. 

Upon certification of the organic governing documents and the 

election of officers of the Native Hawaiian governing entity, the political and legal relationship between the United States and the 

Native Hawaiian governing entity will automatically be reaffirmed 

and Federal recognition shall be extended to the Native Hawaiian 

governing entity. 

Section 8. Reaffirmation of delegation of Federal authority; negotiations; claims 

Section 8 reaffirms the delegation of authority to the State of Hawaii to address the conditions of Native Hawaiians. It provides that 

upon reaffirmation of the political and legal relationship between 

the United States and the Native Hawaiian governing entity, the 

United States and the State of Hawaii may negotiate with the Native Hawaiian governing entity on certain issues. Negotiation topics include the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or 

resources; the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land 

use; the exercise of civil and criminal jurisdiction; the delegation of 

governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii; any residual responsibilities of the United States and the State of Hawaii; 

and grievances regarding assertions of historical wrongs committed 

against Native Hawaiians by the United States or by the State of 

Hawaii. Upon agreement of any matters, the parties may submit 

proposed amendments to Federal or State law to the Congress or 

the State of Hawaii, respectively. Any governmental power or authority of the Native Hawaiian governing entity which is currently 

exercised by the State or Federal Governments shall only be exercised by the Native Hawaiian governing entity as agreed to in negotiations under this section. 

Additionally, this section provides that this Act does not create 

a cause of action against the United States or any other entity or 

person; alter existing law regarding obligations on the part of the 

United States or the State of Hawaii with regard to Native Hawaiians or any Native Hawaiian entity; create obligations that did not 

exist in any source of Federal law prior to the date of enactment 

of this Act; or establish authority for the recognition of more than 

one Native Hawaiian governing entity. In addition, nothing in this 

Act creates any breach-of-trust actions, land claims, resource-protection or resource-management claims by or on behalf of Native 

Hawaiians or the Native Hawaiian governing entity and the 

United States retains its sovereign immunity from suit to any 

claim that exists prior to enactment of this Act which could be 

brought by Native Hawaiians or a Native Hawaiian governing entity. Any claims that may have already accrued and may be brought 

against the United States shall be rendered nonjusticiable. 

The State of Hawaii also retains its sovereign immunity unless 

waived in accordance with State law. Finally, nothing in this Act 

may be construed as overriding section 5 of the Fourteenth Amendment or State sovereign immunity held under the Eleventh Amendment. 


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Section 9. Applicability of certain Federal laws 

This section prohibits the Native Hawaiian governing entity and 

Native Hawaiians from conducting gaming as a matter of claimed 

inherent authority or under any Federal law, including the Indian 

Gaming Regulatory Act in the State of Hawaii or within any other 

State or Territory of the United States. 

The Secretary may not take land into trust for Native Hawaiians 

or on behalf of the Native Hawaiian governing entity. It makes 

clear that the Indian Trade and Intercourse Act does not, has 

never, and will not apply after enactment to lands or land transfers 

present, past, or future, in the State of Hawaii. If a Court construes otherwise, any land transfers before the date of enactment 

of this Act shall be deemed to have been made in accordance with 

the Indian Trade and Intercourse Act. 

Only one Native Hawaiian governing entity may be recognized 

pursuant to this Act. Any other groups shall not be eligible for the 

Federal Acknowledgment Process. 

Nothing in this Act alters the civil or criminal jurisdiction of the 

United States or the State of Hawaii over lands and persons within 

the State of Hawaii, unless otherwise negotiated pursuant to section 8. 

Native Hawaiians shall not be eligible for programs and services 

available to Indians unless otherwise provided under applicable 

Federal law. The Native Hawaiian governing entity and its citizens 

shall be eligible for Native Hawaiian programs and services to the 

extent and in the manner provided by other applicable laws. 

Section 10. Severability 

The section provides that if any section or provision of this Act 

is found to be invalid, the remaining sections or provisions shall 

continue in full force and effect. 

Section 11. Authorization of appropriations 

This section authorizes such sums as necessary to carry out this 

Act. 

LEGISLATIVE HISTORY

S. 310 was introduced on January 17, 2007, by Senator Akaka 

for himself and Senators Inouye, Cantwell, Dodd, Murkowski, Stevens, Coleman, Dorgan, and Smith, and referred to the Committee 

on Indian Affairs. Senator Klobuchar became a cosponsor on December 3, 2007. A hearing was held before the Committee on Indian Affairs on May 3, 2007. On May 10, 2007, the bill was ordered 

by the Committee to be favorably reported without amendment to 

the full Senate. 

A House companion measure to S.310, H.R. 505, was introduced 

on January 17, 2007, by Representative Abercrombie, and referred 

to the Committee on Natural Resources. On May 2, 2007, the Natural Resources Committee met to consider the bill. The bill was ordered favorably reported to the House of Representatives by voice 

vote. The bill passed the House on October 24, 2007. 


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COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

On May 10, 2007, in an open business meeting, the Committee 

considered S.310 and ordered the bill to be favorably reported, 

without amendment, to the Senate by voice vote. 

COST AND BUDGETARY CONSIDERATIONS

The cost estimate of the Congressional Budget Office on S. 310 

is set forth below: 

S. 310—Native Hawaiian Government Reorganization Act of 2007 

S. 310 would set forth a process for establishing and recognizing 

a Native Hawaiian governing entity that would act on behalf of its 

members with the state and the federal government. CBO estimates that implementing S. 310 would cost about $1 million per 

year over the 2008–2010 period and less than $500,000 in each 

subsequent year, assuming the appropriation of the necessary 

funds. Enacting the bill would not affect direct spending or revenues. 

The bill would establish the United States Office for Native Hawaiian Relations within the Department of the Interior (DOI). This 

office would be responsible for developing and overseeing the federal relationship with the Native Hawaiian governing entity. Based 

on information from DOI, CBO expects that this office would require up to three full-time staff. S. 310 also would create a ninemember commission responsible for collecting and certifying a 

membership roll of adult Native Hawaiians. Based on the deadlines 

specified in the bill as well as information from DOI, CBO expects 

that this commission would need three years and three full-time 

staff to complete its work. 

S. 310 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 land or other assets 

to this new government, including land now controlled by the state 

of Hawaii, would be the subject of future negotiations. 

On May 15, 2007, CBO transmitted a cost estimate for H.R. 505, 

the Native Hawaiian Government Reorganization Act of 2007, as 

ordered reported by the House Committee on Natural Resources on 

May 2, 2007. The two versions of the bill are similar, and our cost 

estimates are the same. 

The CBO staff contacts for this estimate are Daniel Hoople (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 held a hearing on S. 310 on May 3, 2007, at 

which Gregory G. Katsas, Principal Deputy Associate Attorney 

General, presented a statement on behalf of the Administration. In 

this statement, Mr. Katsas acknowledged that many of the Administration’s concerns with previous versions of the Native Hawaiian 

Government Reorganization Act had been addressed in S. 310, but 

that the Administration continued to have ‘‘broader policy and conVerDate Aug 31 2005 14:00 Feb 06, 2008 Jkt 069010 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\SR260.XXX SR260

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23 

stitutional concerns’’ with S. 310. These concerns are described in 

Mr. Katsas’ statement, which was made a part of the hearing 

record for the Committee. 

After the hearing, written questions were submitted to Mr. 

Katsas by the Committee. The Department of Justice provided responses to these questions on July 23, 2007. These responses are 

included in the Committee files. 

REGULATORY AND PAPERWORK IMPACT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires 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. 310 will have a minimal impact on regulatory or paperwork requirements. 

CHANGES TO EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that the provisions of S. 

310 do not affect any change in existing law. 

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