The Native Hawaiian 

Government 

Reorganization Act of 2005 

 A Briefing Before 

The United States Commission on Civil Rights 

Held in Washington, D.C., January 20, 2006 

Briefing Report 

The final printed version of the report will contain any Commissioner’s concurring 

or dissenting statement received by May 18, 2006. 
U.S. Commission on Civil Rights 

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in

1957. It is directed to: 

• Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their 

race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. 

• Study and collect information relating to discrimination or a denial of equal protection of the laws 

under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the

administration of justice. 

• Appraise federal laws and policies with respect to discrimination or denial of equal protection of the 

laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of 

justice. 

• Serve as a national clearinghouse for information in respect to discrimination or denial of equal

protection of the laws because of race, color, religion, sex, age, disability, or national origin. 

• Submit reports, findings, and recommendations to the President and Congress. 

• Issue public service announcements to discourage discrimination or denial of equal protection of the

laws. 

Members of the Commission 

Gerald A. Reynolds, Chairperson 

Abigail Thernstrom, Vice Chairperson 

Jennifer C. Braceras 

Peter N. Kirsanow 

Arlan D. Melendez 

Ashley L. Taylor 

Michael Yaki 

Kenneth L. Marcus, Staff Director 

U.S. Commission on Civil Rights 

624 Ninth Street, NW 

Washington, DC 20425 

(202) 376-8128 voice 

(202) 376-8116 TTY 

www.usccr.gov 

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Table of Contents 

Executive Summary...........................................................................................1 

Recommendation..............................................................................................15 

Briefing on the Native Hawaiian Government Reorganization Act before the United States 

Commission on Civil Rights 

 Gail Heriot.....................................................................................................16

Testimony on the Native Hawaiian Government Reorganization Act before the U.S. Commission 

on Civil Rights 

Prepared and submitted by Patricia M. Zell in her capacity as former Staff Director and Chief 

Counsel of the Senate Committee on Indian Affairs and delivered orally by Noe Kalipi..........19 

Public Briefing on the Akaka Bill 

H. William Burgess..........................................................................................24 

The Authority of Congress to Establish a Process for Recognizing a Reconstituted Native 

Hawaiian Governing Entity 

Viet D. Dinh and H. Christopher Bartolomucci..........................................................30 

Speaker Biographies.........................................................................................42 

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Executive Summary 

On January 20, 2006, a panel of experts briefed members of the U.S. Commission on Civil 

Rights on the Native Hawaiian Government Reorganization Act of 2005. Noe Kalipi, the 

Democratic Staff Director on the Senate Committee on Veteran’s Affairs; H. William Burgess, 

Lead Attorney, Grassroots Institute of Hawaii; H. Christopher Bartolomucci, Partner, Hogan & 

Hartson; and Gail Heriot, Professor of Law, University of San Diego Law School made 

presentations and offered their expertise. The briefing was held at the U.S. Commission on 

Civil Rights headquarters in Washington, D.C. A transcript of the briefing is available on the 

Commission’s website, www.usccr.gov, and by request from Publications Office, U.S. 

Commission on Civil Rights, 624 Ninth Street, NW, Room 600, Washington, D.C. 20425, (202) 

376-8128, publications@usccr.gov. The Commission received sixteen timely public comments 

from this briefing. Most of these comments were from individuals who oppose the legislation on 

the ground that it would be racially divisive. Comments supporting the legislation were received 

from the State of Hawaii’s congressional delegation, the American Bar Association, the State of 

Hawaii’s Office of Hawaiian Affairs and Department of Hawaiian Homelands, and a University 

of Colorado law professor. 

This briefing addressed the Native Hawaiian Government Reorganization Act of 2005 (S. 147 

and H.R. 309) proposed by Senator Daniel Akaka. The proposed legislation would: 

• Recognize a right of the Native Hawaiian people to reorganize the Native Hawaiian 

governing entity to provide for their common welfare and to adopt appropriate organic 

governing documents; 

• Establish a Commission to: (1) prepare and maintain a roll of the adult members of the 

Native Hawaiian community who elect to participate in such reorganization; and (2) 

certify that the adult members of the Native Hawaiian community proposed for inclusion 

on the roll meet the definition of Native Hawaiian, defined in the bill as either an 

individual “who is one 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 one of the indigenous, native 

people of Hawaii and who was eligible in 1921 for the programs authorized by the 

Hawaiian Homes Commission Act or a direct lineal descendant of that individual”; 

• Outline the process for the reorganization, which includes forming a Native Hawaiian

Governing Council; 

• Reaffirm the political and legal relationship between the United States and the Native

Hawaiian governing entity upon certification required by the Secretary regarding the 

organic governing documents and the election of the entity’s officers; 

• Extend Federal recognition to the governing entity as the representative governing body 

of the Native Hawaiian people; and 

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• Authorize the United States, upon the reaffirmation of such political and legal 

relationship, to enter into negotiations with the governing entity to lead to an agreement 

addressing specified matters, including the transfer of lands, natural resources, and other 

assets, and the protection of existing rights related to such lands or resources. 

Previously, the Hawaii Advisory Committee to the Commission held community forums in 

August 1998 and September 2000 in which speakers addressed Congress’ joint resolution 

apologizing to Hawaii for the alleged role of the United States in the overthrow of the Hawaiian 

monarchy and the Rice v. Cayetano decision by the United States Supreme Court, respectively. 

Information presented at these forums was later summarized in the Committee’s 2001 report, 

Reconciliation at a Crossroads. This Committee had also issued a report, A Broken Trust: The 

Hawaiian Homelands Program: Seventy Years of Failure of the Federal and State Governments 

to Protect the Civil Rights of Native Hawaiians, in 1991 based on information presented in a 

1988 public forum and 1990 factfinding meeting. This report examined the extent to which both 

the Federal government and the State of Hawaii were meeting their trust obligations to Native 

Hawaiians under the Hawaiian Homes Commission Act of 1921. 

Noe Kalipi 

Ms. Kalipi delivered testimony that was prepared and submitted by Patricia M. Zell in her 

capacity as former Staff Director and Chief Counsel of the Senate Committee on Indian Affairs. 

Ms. Kalipi argued in favor of Senate Bill 147, the Native Hawaiian Government Reorganization 

Act of 2005 (S.147). She explained that Native Hawaiians are aboriginal peoples, present in the 

United States prior to the formation of the American republic. Congress may deal with Native 

Hawaiians under the same constitutional authority that Congress deals with Native American 

communities. The relationship is one based not upon race, but instead upon political status as 

citizens of separate native polities incorporated within the United States. 

The purpose of S.147 is to extend the federal policy of self governance and self determination to 

Native Hawaiians, providing parity in federal policies towards American Indians, Alaska Natives 

and Native Hawaiians. She explained that before the overthrow, the Kingdom of Hawaii was a 

distinct independent nation and a party to treaties with European nations and the United States. 

Unlike many other aboriginal peoples, the Native Hawaiians welcomed foreigners into their 

society. According to Ms. Kalipi, this generosity contributed to the overthrow of the monarchy, 

the establishment of a provisional government and the transfer of vast amounts of land to the 

United States. In her view, neither the fact that some non-natives were included in the Kingdom

of Hawaii, nor the Kingdom’s dissolution by a now apologetic U.S. government, makes the 

Kingdom non-native. 

While Congress has enacted more than 160 statutes addressing the conditions of Native 

Hawaiians, the current ad hoc process fails to deal with Native Hawaiians as a sovereign entity. 

One example of the 160 statutes is the Hawaiian Homes Commission Act enacted by Congress in 

1920 to establish protected lands for the Native Hawaiians who had been devastated by the 

overthrow. Others involve land rights and access to natural resources. Once self-governance has 

been properly recognized, Native Hawaiians would be able to set aside ad hoc processes and 

interact with the federal government in a more conventional government-to-government 

relationship. 

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She explained the structure of the bill, including the establishment of two independent processes. 

The first provides for a reorganization of the Native Hawaiian governing entity. Once 

reestablished as a sovereign entity, Hawaii’s indigenous peoples could establish the criteria by 

which participation in the governing entity would be determined. The second is a negotiations 

process which provides that, upon federal recognition, the Native Hawaiian governing entity 

would be able to negotiate issues such as the transfer of any lands, natural resources and assets 

commensurate with jurisdiction; grievances for historical wrongs; and any governmental 

authority issues with the State of Hawaii and the United States. She explained that this 

negotiations process would be inclusive and was intended to represent all the people of Hawaii. 

Before any transfers could be completed, enabling legislation at the state and federal levels, if 

necessary, would be enacted. 

She explained that efforts to preserve Native Hawaiian tradition, culture and custom are widely 

supported in Hawaii and are nonpartisan. The same sentiment carries over to S.147, which she 

said was supported by Hawaii’s congressional delegation, the Hawaii State legislature, the 

Governor of Hawaii and the National Congress of American Indians and the Alaska Federation 

of Natives. 

William H. Burgess 

Mr. Burgess expressed grave concern that S.147 would permanently segregate the state of 

Hawaii and its people. He articulated three primary reasons to strongly oppose passage of S.147. 

• First, he explained that peoples of various races and ethnicities had been united under the 

Kingdom of Hawaii. S. 147 would break that unity. 

• Second, he challenged the analogy to Native American tribes. He disputed that any 

analogous Native Hawaiian entity had ever existed. 

• Third, he challenged the reference to President Grover Cleveland’s remarks on U.S. 

participation in the overthrow of the Kingdom of Hawaii, citing the Morgan Report of 

1894. 

He began with a discussion of unity and equality in Hawaii. He explained that long before the 

establishment of the Kingdom of Hawaii in 1810, King Kamehameha brought non-natives onto 

his forces and into his family. Since then, non-natives have continued to intermarry, assimilate, 

and contribute to the social, economic and political life of Hawaii both as leaders in high 

positions and as ordinary citizens. He felt that the driving force behind S.147 was discrimination 

between citizens of the United States based solely on ancestry. He described several ways in 

which that unity would be disturbed. Each involved the distribution of privileges on the basis of 

race. He explained that Hawaii is the only state that gives homesteads restricted exclusively to

people that are defined explicitly by race. He cited the definition of Native Hawaiians in the 

Hawaii Homes Commission Act, which encompasses any descendent with some part of the 

blood of the races inhabiting the Hawaiian Islands prior to 1778. Additionally, the Office of 

Hawaiian Affairs provides annual cash distributions of public land trust revenues to those 

satisfying the definition of Native Hawaiian. For emphasis, he explained the injustice of 

providing money and public resources to that group, at state expense, while public schools in 

Hawaii were crumbling. Moreover, these benefits did not flow only to the limited racial group of 

those with 50 percent or more Hawaiian ancestry, but also to people with even a drop of 

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Hawaiian blood. 

As to the Indian tribe analogy used by supporters of S. 147, Mr. Burgess disputed the basis upon 

which Native Hawaiians made a claim for parity with Native Americans. He disputed that Native 

Hawaiians were in fact identically situated to the Native Americans for whom recognition is 

granted. In his view, no group of Native Americans was recognized as a tribe simply because of 

ancestry. In each case, a longstanding political (not racial) entity was the subject of recognition. 

Conversely, he claimed that no Hawaiian tribe or government of any kind had existed for Native 

Hawaiians separate from the government of the rest of the citizens of Hawaii. 

Finally, he disputed the claim that wrongdoing on the part of the United States government had 

played a role in the overthrow of Kingdom of Hawaii, as alleged in the Apology Resolution 

passed by Congress in 1893. For support, he relied upon the Morgan Report of February 26, 

1894, an 800 page report of the Senate Committee on Foreign Affairs, which concluded that 

United States troops had landed as peacekeepers to protect American lives and property and had 

remained completely neutral. Based upon the Morgan Report, President Cleveland recognized 

the provisional government of Hawaii, and subsequently the Republic of Hawaii, as the lawful 

successor to the Kingdom of Hawaii, forever extinguishing claims of Native Hawaiians to the 

equivalent of tribal status. 

H. Christopher Bartolomucci 

Mr. Bartolomucci based his testimony on a memorandum he had coauthored with Georgetown 

University Law Center Professor Viet Dinh for the State of Hawaii’s Office of Hawaiian Affairs. 

His remarks focused on Congress’ power to enact S. 147. In his view, the principal legal 

question presented by S. 147 was whether Congress had the constitutional authority to treat 

Native Hawaiians in the same manner it treated other Native Americans. He found that 

constitutional text, Supreme Court precedent, and historical events provided the answer—

Congress’ broad power in regard to Indian tribes allows Congress to recognize Native Hawaiians 

as having the same sovereign status as the other indigenous peoples of this country. 

He explained that Congress’ broadest constitutional power, the power to regulate commerce, 

specifically encompasses the power to regulate commerce with the Indian tribes. He explained 

the two year old Supreme Court decision in United States v. Lara, where the Court held that

“[t]he Constitution grants Congress broad general powers to legislate in respect to Indian tribes 

powers that we have consistently described as plenary and exclusive.” Moreover, he identified 

one situation where Congress had used that broad power in the past to restore lost tribal 

sovereignty. In 1954, Congress terminated the sovereignty of the Menominee Indian Tribe in 

Wisconsin. In 1973, Congress reversed course and enacted the Menominee Restoration Act, 

which restored sovereignty to the Menominee Tribe. 

Pointing to the Menominee Restoration Act, the Supreme Court in Lara affirmed that the 

Constitution authorized Congress to enact legislation “recognizing the existence of Indian tribes 

and restoring previously extinguished tribal status.” Similarly, before Hawaii became a state, the 

Kingdom of Hawaii was a sovereign nation recognized as such by the United States. In 1893, 

American officials and the United States military aided the overthrow of the Hawaiian 

monarchy. A century later, in 1993, Congress formally apologized to the Hawaiian people for 

United States involvement in this regime change. Now, S. 147 is patterned after the Menominee 

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Restoration Act and would do for Native Hawaiians what Congress had done earlier for the 

Menominee Tribe. 

Anticipating opposing arguments, Mr. Bartolomucci concluded that S. 147 does not run afoul of 

the Supreme Court’s 2000 decision in Rice v. Cayetano. Rice had ruled that the State of Hawaii 

could not limit the right to vote in a state election to Native Hawaiians. Rice did not address 

whether Congress could treat Native Hawaiians as it treated other Native Americans. Indeed, the 

Court in Rice expressly declined to address whether Native Hawaiians have a status similar to 

Indians in organized tribes or whether Congress may treat the Native Hawaiians as it does the 

Indian tribes. 

Some opponents of S. 147 have pointed to Rice in support of an argument that the bill violated 

the Equal Protection Clause. But Mr. Bartolomucci offered that the Supreme Court has long 

held that congressional legislation dealing with indigenous groups is political, not racial in 

character and is therefore neither discriminatory nor unconstitutional. Significantly, when 

Congress enacts laws for indigenous peoples it does so on a government-to-government basis. In 

fact, he reminded us, scores of federal laws and regulations exist relating to American Indians, 

Native Alaskans and Native Hawaiians, and none has ever been struck down as racially 

discriminatory. 

In conclusion, Mr. Bartolomucci stated that a decision by Congress to treat Native Hawaiians

like other native groups is a political decision, one that the courts are not likely to second-guess. 

The 1913 case of United States v. Sandoval, involving the New Mexico Pueblos, the Supreme 

Court ruled that Congress could treat the Pueblos as Indians even though their culture and 

customs differed from that of other Indian tribes. The Court decided that Congress’ judgment 

was not arbitrary and that judicial review should end there. Mr. Bartolomucci opined that the 

different culture and customs of Native Hawaiians will likewise pose no barriers. Congressional 

action in S. 147 to treat Native Hawaiians differently is a political classification that is not 

arbitrary, and would therefore satisfy all constitutional requirements. 

Gail Heriot 

Ms. Heriot began by explaining the complexity of the body of Indian law and the presence of 

numerous contradictions. In her view, recognition of Native Hawaiians, an Indian megatribe, 

would be an unwelcome and major expansion to that body of law. Moreover, she felt that such 

an expansion would exceed Congress’s constitutional authority. 

First, she argued that the Constitution contains no clear statement of congressional authority to 

regulate existing Indian tribes as opposed to regulating commerce between the United States and 

Indian tribes. In her view, the power to authorize the creation of new tribes or even to authorize 

the reorganization of a previously existing tribe is not a regulation of commerce. She understood 

that the Commerce Clause must necessarily include some functions outside strictly commerce, 

but nevertheless felt that establishing tribes exceeded allowable non-commerce functions. 

Additionally, Ms. Heriot disagreed with the reference made by Mr. Bartolomucci that Congress 

had reconstituted the Menominee Tribe. First, she explained that the purported termination and 

restoration of sovereignty was not challenged before the Supreme Court. The more important 

distinction was that the Menominee Tribe had not been extinguished by an act of Congress. 

Instead, federal supervision ceased as part of a general policy to decrease federal supervision 

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over all Indian tribes. In contrast to Native Hawaiians, the tribe continued to exist; it continued to

be organized as a corporation with the members of the tribe as shareholders of that corporation. 

Therefore, by recognizing the Menominee Tribe, Congress was not creating a tribe, nor was it 

establishing the mechanism to create a tribe. Congress simply recognized the tribe again and 

federal supervision was resumed. 

She emphasized that there are standards for determining whether a group is a tribe. One 

important factor is that the political entity must exist continuously. No Native Hawaiian entity 

has existed continuously, as evidenced by the mechanism by which S.147 defines membership. 

A tribe that exists does not need to be told by the United States Government who is in the group 

and who is not. 

Nevertheless, according to Ms. Heriot, another issue loomed larger. The State of Hawaii’s Office 

of Hawaiian Affairs (OHA) currently administers a huge public trust for the benefit of all 

Hawaiians. In practice the trust provides benefits exclusively for ethnic Hawaiians, including 

special home loans, business loans, and housing and educational programs. The constitutionality 

of the current system has recently been called into question as a result of the Supreme Court’s 

decision in Rice v. Cayetano and the Ninth Circuit’s decision in Doe v. Kamehameha Schools, 

which is currently being reviewed by the Ninth Circuit en banc. Many expect other aspects of 

OHA’s special benefits programs will be challenged in court on equal protection and other civil 

rights grounds. Ms. Heriot believes that S.147 is, in large measure, an effort to preserve that 

system. 

In the Rice decision, the Supreme Court held that Hawaii’s election system, under which only 

ethnic Hawaiians could vote for trustees of OHA, was a violation of the Constitution’s Fifteenth 

Amendment, which prohibits discrimination on the basis of race in voting rights. In a later 

decision in the federal circuit courts, the Doe court held that the prestigious King Kamehameha 

Schools, which are privately run, cannot give ethnic Hawaiians priority over students of other 

races and ethnicities for admission without violating 42 USC Section 1981. 

Ms. Heriot explained that the best hope for those who favor the current Native Hawaiian benefit 

programs is to transform them from programs that favor one race or ethnicity over others, to 

programs that favor members of a tribe over non-members. She found the basis for such an 

approach in Morton v. Mancari, a case involving a hiring preference for tribal members at the 

U.S. Bureau of Indian Affairs, where the Supreme Court provided that “such a benefit is granted 

to Indians not as a discreet racial group but rather as members of quasi-sovereign tribal entities.” 

As Ms. Heriot explained, the Mancari decision, though, is a double-edged sword. If 

discrimination by the Bureau of Indian Affairs in favor of tribal members is not race-based, then 

presumably discrimination against tribal members by a state government is also not race-based. 

The very act of transforming ethnic Hawaiians into a tribe under S.147 would be an act 

performed on a racial group, not a tribal group. If it is done for the purpose of conferring very 

large benefits on that group, according to Ms. Heriot, then it would be an act of racial 

discrimination. 

Discussion 

Chairman Reynolds began the discussion summarizing key questions for the discussion period. 

He asked whether distributing benefits and burdens on the basis of race or ethnicity was 

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constitutional. Assuming that it was constitutional, he then asked whether that practice was 

something we wanted to do or expand. Before opening the floor to questions from

Commissioners, Chairman Reynolds permitted the panelists to provide any clarifying remarks 

that might have. 

Mr. Bartolomucci began by explaining that in the Lara decision, Justice Breyer expressly stated 

that Congress had the authority to restore previously extinguished tribal status. In his view, that 

language clearly supported Congressional power to restore a tribe that had previously existed, as 

in the case of the Menominee. He added that he was not convinced that Native Hawaiians were 

not a continuously existing tribe. In his view, nothing that Congress or the federal government 

could do could take away their status or destroy their sovereignty. In response, Ms. Heriot 

distinguished the Menominee case from the Native Hawaiian situation by arguing that the 

Menominee Tribe did not disappear as a political unit. She referenced an unidentified case 

where, during the purportedly extinguished period, the Court recognized the sovereignty of the 

Menominee in the sense that they continued to be exempt from Wisconsin law on issues of 

fishing and hunting rights. However, if the Menominee continued to exist, then the case failed to 

establish precedence for restoration of Native Hawaiian sovereignty. 

Commissioner Braceras asked about the preexistence of Native Hawaiian sovereignty and the 

role it played in any decision to grant or restore sovereignty. Ms. Kalipi explained that if our 

government had dissolved the Hawaiian monarchy, granting federal recognition would be a 

restoration of a preexisting native government—a restoration delayed only because an alternative 

form of government was forced upon the Hawaiian people. Mr. Burgess disputed her claim,

arguing that the Kingdom of Hawaii had never been a tribe—it was never exclusively of, by or 

for Native Hawaiians. He cited the first constitution and the civil codes of the Kingdom of 

Hawaii, which provided that naturalized foreigners had the same rights, privileges, and 

immunities as natives. He also claimed that ethnic Hawaiians were a minority of the inhabitants 

of Hawaii in 1893. To his knowledge, non-natives played important roles as judges, elected 

officials in the legislature, and cabinet members and business leaders. Consequently, restoring 

the Kingdom would not mean creating an exclusively ethnic Hawaiian government, but would 

instead mean forming an inclusive government of all the people of Hawaii. His comments 

elicited questions about the definition of tribe and the definition of Native Hawaiian. 

Explaining that Native Americans did not initiate the word “tribe,” Commissioner Melendez 

asked for its definition, positing that what we now know as “Indian tribes” exercised selfgovernance in any number of ways. Ms. Heriot agreed that many groups called tribes have very 

different political structures. Nevertheless, she believed that the law required a continuous 

political unit recognizable as a political structure. To her knowledge, every federally recognized 

tribe had a continuous political structure. Any tribal political structure that might have existed 

for Native Hawaiians in the past did not exist anymore. She emphasized that Congress did not 

have the authority to recreate an extinguished political unit. Mr. Bartolomucci found it 

somewhat ironic that it was permissible to recognize Indian tribes that had been pushed off their 

lands and put into reservations, but that federal recognition was forbidden if the federal 

government had completely extinguished sovereignty. 

Commissioner Taylor asked whether the key question was whether an identifiable structure 

existed at some point in time and whether an affirmative answer would imply that Congress was 

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merely recognizing or restoring a sovereign entity, rather than creating one. He asked whether 

the sovereign entity had been extinguished when the monarchy was overthrown. Hearing that it 

had not, he asked whether it was accurate to say that sovereignty resided in the people. Ms. 

Kalipi explained that Native Hawaiians believe that the monarchy was their government. She 

explained that any differences between the Hawaiian concept of monarchy and either the 

Western concept of monarchy or the governing entity for other Native American tribes should 

not be held against Native Hawaiians. 

Commissioner Braceras asked whether recognition of tribal status depended on the particular 

political history of the territory or whether it depended strictly on racial affiliation and cultural 

identification. Ms. Kalipi responded that it hinged upon both. The federal policy of self 

governance and self determination was based on the political and legal relationship that the 

United States had with the preexisting sovereign entity. It was impossible to separate the 

preexisting political entity from the culture that formed that political entity. Commissioner Yaki 

interjected that it was unreasonable to dispute that in Hawaii an indigenous sovereign 

government had been dissolved by the United States for its own purposes. 

Mr. Burgess, with the support of Ms. Heriot, reminded the Commission that indigenous peoples 

have no status and effect under the Constitution. He stated that, in the Rice case, the Supreme 

Court failed to accept the argument that all indigenous people are entitled to a special 

relationship. He explained that the same argument had been made in Arakaki v. State. According 

to Mr. Burgess, the courts, for a second time, rejected arguments based on indigenous status. 

Although he acknowledged an international movement to declare the rights of indigenous 

people, he noted that it had not yet been adopted by the United States. In the Rice decision, he 

said, the Court found that defining Native Hawaiians based on ancestry, was simply creating a 

proxy for race. Similarly, he believed that using ancestry instead of race in S.147 was 

impermissible racial discrimination. 

Commissioner Taylor asked whether recognizing a unique status for all indigenous people would 

be required if S.147 were to pass. Ms. Kalipi thought not. She explained that Congress had 

passed more than 160 laws and statutes to address the conditions of Native Hawaiians. Congress 

had previously established a political and legal relationship with Native Hawaiians dating back 

to 1893. This bill would simply formalize that political and legal relationship. 

Commissioner Taylor recognized the significance of the federal government choosing to deal 

with Native Hawaiians as a group, but he nevertheless asked why the government chose not to 

deal with other indigenous groups. Commissioner Yaki suggested that the federal government’s 

action toward Native Hawaiians was a half-hearted attempt to provide some sort of recognition 

to the fact that our actions in the Hawaiian Islands were improper. He saw S.147 as a simple 

method of completing the process of creating federal recognition of Native Hawaiians, a process 

that had been neglected since 1893. 

Vice Chair Thernstrom asked for further clarification on whether the government in place in 

1893 had been a government exclusively of Native Hawaiians. Ms. Kalipi acknowledged that it 

had not been. She explained that only about 40 percent of the Kingdom was ethnically 

Hawaiian. She reported that Native Hawaiians were the majority of people participating in what 

was still their government. She emphasized that a sovereign entity had the power to make its 

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own decision as to how foreigners would participate. That the government had a mechanism to 

include foreigners did not make that government non-native. At this point Vice Chair 

Thernstrom asked whether it was appropriate to establish a new government that would have the 

ability to choose not to admit foreigners. Ms. Kalipi responded that the self-governing process 

would allow Native Hawaiians to decide if they wanted to admit foreigners or not. Making those 

decisions was consistent with the federal policy of self governance and self determination for 

indigenous peoples. 

Several Commissioners and panelists saw reason to distinguish Native Hawaiians from Native 

Americans. Chairman Reynolds asked whether the different history and relationship with the 

U.S. government for Hawaiians would justify different treatment. Commissioner Yaki 

responded that refusing to call Native Hawaiians tribes for purposes of the Commerce Clause 

and the Treaty Clause was not reading history correctly. Commissioner Braceras disagreed, 

adding that constitutional and legal questions require that you deal with the text as written. She 

maintained that tribes did not necessarily include indigenous peoples. 

Commissioner Melendez commented that fears of secession were unfounded and pointed out that 

Indian tribes would not be permitted to separate from the Union and neither would Native 

Hawaiians. He went on to state that under the Akaka bill Congress would retain control and 

could act to protect the civil rights of U.S. citizens. He then asked the panelists to compare the 

situation facing Native Hawaiians to that faced over the years by Native Americans. He 

concluded by stating that while it is impossible to right every wrong, some wrongs can and 

should be corrected. Ms. Heriot explained that she had no objection to the status of Indians in 

the United States. She distinguished Native Hawaiians by the many years during which nothing 

approaching a tribal entity existed in Hawaii. In her view, there is currently no functioning tribe. 

Rather than recognizing Indian tribes in the United States, Congress is seeking to create a 

mechanism that would allow a tribe to be created. 

The concept of creating a tribe was also questioned from the perspective of race. Commissioner 

Taylor was the first to ask whether this bill merely created a racial or ethnically based group. He 

asked whether this group of indigenous peoples needed to have a recognized political system in 

place in order for this bill to be viable. Ms. Kalipi explained that the bill did not create a tribe, 

nor a group distinguished solely on race. Instead she explained that before 1893 Native 

Hawaiians had a political entity in place. With respect to any interim governing body after the 

overthrow, she explained that Hawaiians did the best they could without a government as others 

would perceive a government. She believed that S.147 would correct that injustice by 

reorganizing a recognizable government of indigenous peoples, not by creating a tribe. 

Chairman Reynolds questioned the mechanism for selecting group membership. He asked 

whether it would work exactly like racial preferences in that the governing entity would have the 

ability to treat non-Native Hawaiians differently. Ms. Kalipi did not answer the question 

directly, instead clarifying that S.147 was based on the political and legal relationship that the 

United States has had with Native Hawaiians as an indigenous group, dating back to the 

relationships with a preexisting government. She also explained that S.147 defined Native 

Hawaiian for the sole purpose of identifying who can participate in the reorganization of the 

government. 

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This exchange prompted Commissioner Kirsanow to ask whether discrimination statutes and/or 

sovereign immunity would apply to the newly created sovereign governing entity if S.147 were 

to pass. Ms. Kalipi explained that the bill as currently amended would include sovereign 

immunity provisions. With respect to the anti-discrimination legislation, she explained that the 

organic governing documents created by the commission are required to provide for the 

protection of the civil rights of the citizens of the governing entity and all persons affected by the 

exercise of governmental powers and authorities by the Native Hawaiian governing entity... She 

further stated that the Secretary of the Interior has approval power of the organic governing 

documents and is tasked with ensuring that civil rights protections are included. If the Secretary 

of the Interior found the organic governing documents to be unsatisfactory, she could decline to 

certify the entity and provide federal recognition.

Vice Chair Thernstrom asked about the difference between a racial group and a tribal group if 

the tribal group was defined by “one drop of blood.” Mr. Burgess and Ms. Heriot explained that 

membership in the group would be for lineal descendants of the indigenous peoples, not based on 

residence on the island. 

Commissioner Yaki rephrased an earlier question on whether this bill would be divisive. Ms. 

Kalipi responded that she did not believe the bill would be divisive. She explained that almost 

every elected official in the State of Hawaii had come out in support of the bill. She also 

explained that the bill provides a structured process to finally allow the people of Hawaii, native 

and non-native, to begin to discuss the longstanding issues resulting from the overthrow of the 

Kingdom of Hawaii. She referenced the frequency of misunderstandings and the widespread 

mistrust prevalent throughout the islands. She explained that there would be no immediate 

transfer of land if this bill was enacted. First, the governing entity would need to be reorganized. 

Second, the federal government would need to be satisfied that all requirements were met before 

federal recognition would be granted. Subsequently, the governing entity would be able to 

negotiate any proposed transfer of lands and authority to the governing entity. Before any 

transfer could take place, enabling legislation at the federal and state levels would need to be 

passed. 

Similarly, Commissioner Kirsanow asked how Native Hawaiians would be defined. Mr. 

Bartolomucci answered that the bill would not define membership in the Native Hawaiian entity. 

It would merely define the initial role of persons eligible to vote for an interim governing 

council. He explained the well established principle of Indian law that a tribe may decide who 

holds membership in the tribe. He also explained that the bill called for the Secretary of the 

Interior to create a commission of experts to determine Native Hawaiian ancestry and lineal 

descent. That commission would be responsible for establishing criteria for those able to vote 

for the governing entity and deciding whether individuals fall within that definition. Once 

membership is established, an initial election would determine an interim council. Later in the 

process, Native Hawaiians would decide who should be in the entity and how to define 

membership. 

Ms. Heriot explained that the most worrisome aspects of the proposed legislation were already in 

place. OHA already manages a huge program of special benefits based on Hawaiian ethnicity. 

This bill simply recasts those benefits that already exist in terms that are not based specifically 

on race. Commissioner Yaki asked whether we would still have those concerns if these benefits 

10
were given by a sovereign tribal government, whether or not the sovereignty was continuous. 

Ms. Heriot explained that if the group had existed before, then it would not be a group that the 

United States is recognizing based on race. They would be recognized on the basis of existing 

sovereignty. Nevertheless, she disagreed that Native Hawaiians had sovereignty, because the 

law required that sovereignty be continuous. She insisted that Congress could not hand 

sovereignty to Native Hawaiians and then confer benefits based on that sovereignty. 

Commissioner Taylor expressed his agreement with the importance allotted self determination of

peoples as they relate to governing bodies, but questioned how additional groups could be 

recognized without advocating separation form the United States. Ms. Kalipi amplified her 

remarks on the purpose of S.147 by reminding the Commissioners that the federal government 

already has a federal policy of self-governance and self-determination with respect to some

groups. Commissioner Yaki added that the structure provided by the government to provide 

recompense for actions taken by the government, such as the Hawaii Homes Commission, had 

only partially given the Native Hawaiians a feeling of control and autonomy over the decisions 

that were made. Concessions had not been obtained through a government-to-government 

relationship, as they had been for American Indian tribes or other sovereign nations. He

emphasized that wanting to re-establish a government-to-government relationship did not mean 

that Native Hawaiians were not Americans. Responding to a question from Chairman Reynolds 

as to whether recompense meant reparations, Commissioner Yaki explained that the government 

had already initiated programs with Native Hawaiians; they had simply not done so in a manner 

that respects self-governance and self-determination. Ms. Kalipi echoed those remarks, 

declaring that S.147 was not about reparations. It was completely about process and the 

relationship between sovereign governments. 

Commissioner Braceras asked whether the United States would want to perpetuate a system

whereby certain groups were treated differently than others. Mr. Bartolomucci responded that 

Native Hawaiians should be treated the same as Native Alaskans or American Indians. He 

thought that self-governance could be expanded to Native Hawaiians with some justice. Several 

Commissioners asked whether other groups of people could make similar arguments for 

obtaining rights through self-governance programs. In light of the high intermarriage rate for 

Native Hawaiians and recognizing that Hawaii joined the United States in 1959 with an 

overwhelming vote, Vice Chair Thernstrom questioned whether further separation of Native 

Hawaiians was a good thing. 

Commissioners Kirsanow and Braceras asked what had precipitated this legislation, how this 

legislation would make the situation better for Native Hawaiians and why the current state of

affairs was inequitable. Ms. Heriot explained that this legislation was connected to the Rice v. 

Cayetano decision. In her view, the legislation was focused on providing an alternate 

justification for the racial preference system that is operated by OHA. Ms. Kalipi explained that 

the purpose of S.147 was to allow the people of Hawaii to move forward as a state by providing 

a structured process to allow Native Hawaiians to deal with the longstanding issues of the 

overthrow such as mistrust and misunderstanding. She explained further that federal policies of 

self-governance and self-determination allow indigenous peoples to have greater autonomy over 

their own natural resources and assets. Hawaii is the homeland for Native Hawaiians. Others 

had come in and taken over the homeland, at least partly due to federal policy. Protecting what 

Native Hawaiians currently have and restoring what had been lost requires that the current legal 

11
and political relationship be formalized. 

Staff Director Marcus asked the panelists whether any of the concerns about the bill would be 

addressed by a potential amendment that could ensure that membership in the governing entity 

would not be based on racial characteristics, but on lineal descent from persons who lived in 

Hawaii at a particular time regardless of racial characteristics. Mr. Burgess thought that a 

substitute could not be used. He explained that establishing criteria based upon living at a 

particular place at a particular time had been held to be a proxy for race. He believed that the 

language used in S.147 to define ancestry was similar to the definition criticized by the Rice

court. Ms. Heriot agreed that ancestry was often simply a proxy for race. Nevertheless, she 

thought that more information was required to answer the question. If the bill were amended 

such that group membership was defined in terms of ancestry as of 1775 she thought it would be 

simply a proxy for race. On the other hand, if the group were defined based on ancestry as of 

1890, many people would be included who were not ethnically Hawaiian. So, she believed that 

such an amendment would satisfy the Rice test, though she remained concerned that the bill 

might still raise other constitutional issues. 

Public Comments 

The Commission voted to hold the record of the briefing open until March 21, 2006 to receive 

additional comments from the public. Sixteen such comments were received during that period. 

Most of these commenters wrote to express their opposition to the legislation, mainly on the 

ground that it would, in their view, formalize racially discriminatory practices. The State of 

Hawaii’s Congressional Delegation, the State of Hawaii’s Office of Hawaiian Affairs and 

Department of Hawaiian Homelands, and the American Bar Association each wrote to express 

their support. One commenter wrote to assuage concerns about the constitutionality of the 

proposed legislation. 

While most commenters oppose the legislation, the governmental and institutional commenters 

primarily support it. For example, the Hawaii congressional delegation, as principal sponsors of 

the legislation, noted that they are “joined in support for this initiative by virtually all of 

Hawaii’s other elected leaders, including, Governor Linda Lingle, [Hawaii’s] State Legislature, 

and OHA, as well as virtually all of the principal national organizations representing American 

Indians and Alaskan Natives, and most recently the American Bar Association.” The delegation 

also argued that there was “no question that the Akaka bill falls directly within the plenary power

of Congress under our Constitution to establish national policy with respect to and behalf of our 

indigenous peoples.” Similarly, the State of Hawaii’s Department of Hawaiian Home Lands 

supports the legislation because it believes that the legislation would provide Native Hawaiians 

an “opportunity to manage and made decisions that impact their lands and their political and 

cultural identity.” The American Bar Association presented their recently adopted policy 

supporting “the right of Native Hawaiians to seek federal recognition of a governing entity 

similar to that which many American Indians and Alaskan Natives currently enjoy.” 

These supporters of the legislation took great pains to analogize the situation of Native 

Hawaiians with those of Native Americans. For example, Charles Wilkinson, Professor of Law 

12
at the University of Colorado, argued that the “the right of self-determination and selfgovernance” of Native Hawaiians is premised upon “the sovereignty of America’s indigenous, 

native people, ” as opposed to other groups “defined by reference to their race of ethnicity.” 

Similarly, the State’s Office of Hawaiian Affairs stated that America’s indigenous, native people 

are not defined by race or ethnicity, but “by the fact that their indigenous, native ancestors 

exercised sovereignty over the lands and areas that subsequently became part of the United 

States.” Likewise, the State’s Department of Hawaiian Home Lands believes that the proposed 

legislation “advances the Congress’ intent to treat Native Hawaiians as a political body, not a 

racial group.” The State of Hawaii’s Congressional delegation argued that the legislation was 

needed to address the “ramifications of the overthrow of the Kingdom of Hawaii...[which] 

continue[s] to reverberate throughout our state and our communities...” 

Finally, supporters of the legislation attempted to allay any fears of racial balkanization or equal 

protection violations. The State’s Congressional delegation pointed out that the proposed 

legislation only “outlines steps through which federal recognition may be extended, “leaving the 

negotiation and implementation of its provisions to “subsequent mutual agreements by Congress, 

our executive branch, the State of Hawaii, and the reorganized Native Hawaiian entity.” The 

American Bar Association argued that “Native Hawaiians, in seeking rights and privileges that 

other indigenous peoples of the United States enjoy under our legal system, are not 

compromising the rights of others but exercising their own rights...” 

On the other hand, the great majority of commenters wrote to express their opposition to the 

legislation. Many of these comments argued, in very personal terms, that the proposed 

legislation would be inconsistent with basic American principles of equality, traditional 

Hawaiian values, and their own personal ethics. In the words of one commenter, the legislation 

would “enshrine racial discrimination into law.” Some of these commenters stressed their own 

ethnic heritage, including Native Hawaiian ancestry, and argued that the legislation would be an 

affront both to their own personal identities and to those of their family members who lack 

Native Hawaiian blood. While space limitations preclude separate discussion of each letter, the 

following excerpts provide a representative sample of these statements: 

• “As a person born and raised in Hawaii, of mixed parentage, I have always been proud of the 

color-blind nature of my homeland. My family includes people of every race, creed and 

color, including native Hawaiian as defined by the Akaka bill. The thought that portions of 

my family should be treated differently because of their genetic ancestry is anathema to me, 

and I beg you to oppose the Akaka bill, which would enshrine racial discrimination into 

law...The constitution of the Hawaiian Kingdom in 1840 declared that all men were “of one 

blood.” Throughout the history of the Kingdom, the Republic, the Territory and the State of 

Hawaii, we have been a multi-racial and multi-cultural society. To separate out only those 

who had ancestors pre-1778, and take away from them their history of racial equality, their 

history of civil rights, and demand that they must govern themselves separately because of 

race, is an insult to the history of all the peoples of the islands of Hawaii. It would be just as 

reasonable to turn back the clock on civil rights in the mainland United States, and insist that 

whites must govern themselves, and blacks must govern themselves – separate but equal all 

over again!...” Jere Krischel 

• “...It is appropriate to say that I am of Hawaiian, Caucasian and Chinese descent only 

because it shall be noted that I am a descendent of the indigenous peoples of Hawaii and do 

13
not support the Akaka bill...If [the Akaka bill] comes to pass, I will no longer acknowledge 

my Hawaiian heritage as I will be forced to choose on which side of the fence to stand. I will 

choose the Anglo-American tradition of the right to life, liberty, property and the pursuit of 

happiness. This will prevent me from recognizing all that is Hawaiian in me. I consider the 

Akaka bill to be a proposal to violate my rights...” Kaleihanamau Johnson (Aiea, HI) 

• “...I am writing to ask for the civil rights commission to oppose the Akaka Bill on the 

grounds that it will divide our state among racial lines...I am of native American blood (Nez 

Pierce Indian) but cannot be considered eligible for benefits such as those desired by native 

Hawaiians...The Akaka Bill will destroy our way of life in Hawaii...” Garry P. Smith (Ewa 

Beach, HI) 

• “...I am a descendant of both: Kamehameha the Great, who united the islands and people, 

natives and non-natives and made Hawaii a model for the world: and the Mayflower pilgrims

whose ideals of individual freedom and responsibility and self-reliance shaped the most 

inclusive and widely shared system of government in history: American democracy...The 

Akaka Bill would dishonor the unity and equality envisioned by Kamehameha the Great and 

the ideal of one nation, indivisible, composed of indestructible states, envisioned by the U.S. 

Constitution...” Rubellite Kawena Kinney Johnson (Honolulu, HI) 

Other commenters argued that the legislation is a form of “racial balkanization,” that it would 

harm the majority of Hawaiians, and that it would serve as a dangerous precedent to claims by 

other ethnic groups in the United States. Some commenters also attributed base motivations to 

the legislation’s supporters. 

The Commission considered and was informed by the full range of views expressed in its public 

briefing; written and oral statements provided by the panelists in support of and in opposition to 

the legislation; the work of the Commission’s Hawaii State Advisory Committee, including its 

formal reports; and all public comments timely received in response to the Commission’s public 

briefing, including comments from U.S. Senators, Congressmen, state officials, non-profit 

organizations and associations, and interested individuals. The Commission gratefully 

acknowledges the participation of countless individuals in this process, including participants 

from Hawaii, in Washington, D.C., and from other parts of the country. 

14
 

Recommendation 

The Commission recommends against passage of the Native Hawaiian Government 

Reorganization Act of 2005 (S. 147) as reported out of committee on May 16, 2005, or any 

other legislation that would discriminate on the basis of race or national origin and further 

subdivide the American people into discrete subgroups accorded varying degrees of privilege. 

15
Briefing on the Native Hawaiian Government Reorganization Act before the 

United States Commission on Civil Rights 

 Gail Heriot 

Indian law—that body of federal law that governs the allocation of authority over matters 

affecting Indians among the federal government, the state governments and the various tribal 

governments—is not generally beloved by those who like law to be logical and tidy. It suffers 

from generation after generation of shifting policies. As a result of this constant flux, the law’s 

contradictory foundations render it very nearly incoherent. Are tribal governments separate 

sovereignties whose powers are inherent in that status? If so, once a tribal government is 

recognized, is not the United States obliged to recognize and defer to those inherent powers 

regardless of whether they are exercised in a manner that adheres to federal law or the

Constitution? Alternatively, do tribes derive their powers by federal delegation? If so, aren’t

those powers completely subject to the Constitution? Can the powers be both inherent and 

delegated? And if some powers are inherent and others are delegated, which powers are inherent 

and which are delegated?

As I have suggested, the answers to these questions have important ramifications. At one 

extreme, if tribes are essentially foreign sovereign entities, their existence does not depend on 

Congressional legislation and dealing with them is mainly a matter for the President through his 

treaty power—which is precisely how the federal government did indeed treat them during the 

earliest years of the Republic. At the other extreme, if tribes derive their power through federal 

delegation, they cannot be given power by Congress that Congress itself does not enjoy. And 

presumably what Congress gives it can also take away. If it is some combination of the two, as 

arguably Chief Justice John Marshall suggested in Cherokee Nation v. Georgia, 30 U.S. 1 

(1831), when he called tribes “domestic dependent nations,” the legal issues become

exponentially more complex and filled with potential land mines. 

Throughout most of American history, observers assumed that tribes would decline in 

significance. At certain points in history, federal policy was to encourage that decline by 

encouraging assimilation. At other points, federal policy was to resist that decline by protecting 

the tribal way of life. But in both cases, observers expected the decline would nevertheless 

continue. As a result, little attention was accorded to the development of a coherent framework 

for Indian law. 

Recently, however, some tribes have been experiencing an economic boom, driven in 

part by casino gambling and in part by other factors. To be sure, not all tribes and not all tribal 

members have benefited from that boom. But it has nevertheless ensured that more attention will 

be focused on clarifying and systematizing the basic issues of Indian law in the near future. 

But it has not happened yet. Recently, in the case of United States v. Lara, 541 U.S. 193, 

214 (2004), Justice Clarence Thomas called upon the Court “to re-examine the premises and 

logic of our tribal sovereignty cases” and suggested that much of the “confusion” in Indian law 

arises from “largely incompatible and doubtful assumptions” underlying the case law. Indeed, 

the Lara case itself is an example of the doctrinal disarray in Indian law. The case—which holds 

16
that double jeopardy considerations do not prohibit the federal government from re-prosecuting 

an offender who has already been prosecuted in tribal court—generated no fewer than six 

separate opinions. Only a bare majority of five could be garnered for the Court’s opinion. (Note 

that one of the implications of Lara is that a tribal government can re-prosecute an alleged 

offender who has actually been acquitted in federal court and vice versa.) 

The proposed Native Hawaiian Government Reorganization Act rides into this morass at 

full tilt. Because it would authorize the creation (or “reorganization”) of what would be by far 

the largest tribe in history, it puts further pressure on an area of the law that already is showing 

signs of significant stress. And it raises all sorts of thorny problems. For example, can Congress 

authorize the Department of Interior to take steps leading to the creation (or even the 

“reorganization”) of a new tribe? Or is it limited to recognizing those groups that are functioning 

as an independent social and political unit already and have been continuously doing so for a 

significant period of time? 

It is worth pointing out that the Constitution contains no clear statement of Congressional 

authority to regulate existing Indian tribes (as opposed to commerce between the United States 

and Indian tribes), much less to create or organize additional ones. The authority to regulate 

existing tribes is sometimes said to derive from the necessity of dealing with reality. The 

existence of Indian tribes in 1787 (as well as today) is a fact. Surely it was the intention of the 

Framers to confer power on Congress to deal with that reality, whether it’s considered a happy 

reality, an unhappy reality, or something in between–or so the argument runs. 

But the power to authorize the creation of new tribes (or even authorize the 

reorganization of a previously existing tribe) is not merely the practical power to cope with the 

world as it is. New tribes and newly reconstituted tribes alter the status quo in significant ways. 

If the power to create them exists, what limits are placed on it? Does Congress have the 

authority to create an Indian tribe for Mexican Americans in Southern California? The Amish of 

Pennsylvania? Orthodox Jews in New York? (Religious groups would be among the groups 

most likely to desire tribal status, since tribes, if they are conceptualized as sovereign or quasisovereign entities are not governed by the Bills of Rights, except insofar as the Indian Civil 

Rights Act imposes that legal responsibility on the tribe. A religious group could thus arguably 

surmount the Establishment Clause difficulties dealt with by the Supreme Court in Board of 

Education of Kiryas Joel School District v. Grumit, 512 U.S. 687 (1994), by becoming an tribe). 

In examining the constitutionality of the proposed Native Hawaiian Government 

Reorganization Act, however, we can put all this aside, at least temporarily, because another 

issue looms much larger. In an age in which racial entitlements are an important feature of the 

political landscape in nearly every part of the country, the State of Hawaii is in a league by itself. 

Its Office of Hawaiian Affairs administers a huge public trust—worth billions—that in theory 

benefits all Hawaiians, but for reasons that are both historical and political, in practice, provides 

benefits exclusively for ethnic Hawaiians. Among other things, ethnic Hawaiians are eligible for 

special home loans, business loans, housing and educational programs. On the OHA web site, 

the caption proudly proclaims its racial loyalty, “Office of Hawaiian Affairs: For the Betterment 

of Native Hawaiians.” The proposed Native Hawaiian Government Reorganization Act is in 

large measure an effort to preserve this system. 

17
The constitutionality of the system has recently been called into question as a result of the 

Supreme Court’s decision in Rice v. Cayetano, 528 U.S. 495 (2000), and the Ninth Circuit’s 

decision in Doe v. Kamehameha Schools, 416 F.3d 1025 (9th Cir. 2005). Rice held that Hawaii’s 

election system under which only ethnic Hawaiians could vote for Trustees of the Office of 

Hawaiian Affairs was a violation of the Constitution’s Fifteenth Amendment, which prohibits 

discrimination on the basis of race in voting rights. Doe held that the prestigious King 

Kamehameha schools, which are privately run, cannot give ethnic Hawaiians priority over 

students of all other races and ethnicities for admission without violating 42 U.S.C. § 1981. 

Given the results in these cases, it is considered by many to be only a matter of time before other 

aspects of the OHA’s special benefits program will be challenged in court on equal protection 

and other civil rights grounds and ultimately found contrary to law. 

The best hope of those who favor these programs is to transform them from programs 

that favor one race or ethnicity over others to programs that favor the members of a tribe over 

non-members. As the Supreme Court held in Morton v. Mancari, 417 U.S. 535 (1974), a case 

involving a hiring preference for tribal members at the U.S. Bureau of Indian Affairs, such a 

benefit is “granted to Indians not as a discrete racial group, but, rather, as members of quasisovereign tribal entities.” In other words, it is not race discrimination; it is discrimination on the 

basis of tribal membership. 

The question then boils down to this: Can the United States government and the State of 

Hawaii achieve by indirection what they very likely could not have achieved directly on account 

of the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the 

Fourteenth Amendment? I would respectfully submit that the answer is no. That is not because

Morton v. Mancari is not good law. It is. (Note, however, that the Mancari decision is a doubleedged sword. If discrimination by the Bureau of Indian Affairs in favor of tribal members is not 

race discrimination then presumably discrimination against tribal members by a state 

government is not race discrimination). But it cannot apply to a tribal group that does not yet 

exist. The very act of transforming ethnic Hawaiians into a tribe is an act performed on a racial 

group, not a tribal group. When, as here, it is done for the purpose of conferring massive 

benefits on that group, it is an act of race discrimination subject to strict scrutiny—scrutiny that it 

likely cannot survive. 

The proof of all this is apparent if one simply alters the facts slightly. If the State of 

Hawaii were operating its special benefits programs for Whites only or for Asians only, no one 

would dream that the United States could assist them in this scheme by providing a procedure 

under which Whites or Asians could be declared a tribe. 

18
Testimony on the Native Hawaiian Government Reorganization Act before the 

U.S. Commission on Civil Rights 

Prepared and submitted by Patricia M. Zell in her capacity as former Staff 

Director and Chief Counsel of the Senate Committee on Indian Affairs 

Oral testimony delivered by Noe Kalipi 

Overview

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 1500s 

and 1600s presaged how the United States would recognize their aboriginal title to land, and 

treaties became the instruments of fostering peaceful relations.

1

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. 

 1

 Felix S. Cohen, The Spanish Origin of Indian Rights in the Law of the United States, 31, GEO. L.J. 1 (1942). 

19
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 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. 

The Native Hawaiian Government Reorganization Act - S. 147 

The purpose of S. 147 is to authorize a process for the reorganization of the Native 

Hawaiian government, to reaffirm the special political and legal relationship between the United 

States and the Native Hawaiian governing entity, 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. 

Historical Background 

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 U.S.S. 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 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 Makai: 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 

20
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.2 

The Constitution of the United States addresses the status of the indigenous, native people of 

America. That status is founded not upon considerations of race or ethnicity, but upon the 

historical fact that the indigenous, native people occupied and exercised sovereignty over the 

lands and territories which were later to become part of the United States. Their sovereignty 

existed before the formation of the United States, and the United States Constitution recognizes 

their status as sovereigns, in the same clause of the Constitution that recognizes the sovereignty 

of the several States and the foreign nations. 

 

The laws of the United States reflect the constitutional status of the indigenous, native 

people of America. Upon this constitutional foundation, hundreds of Federal laws have been 

enacted that express the nature of the political and legal relationship the United States has with 

the sovereign governments of the native people of this land—American Indians, Alaska Natives 

and Native Hawaiians. 

Throughout America’s history as a nation, the Executive and Legislative branches of the 

United States government have entered into treaties and carried on a course of dealings with the 

indigenous, native people of America, and the Judicial branch of the Federal government has 

consistently reaffirmed that the treaties and conduct of relations with the indigenous, native 

people is based on a political and legal relationship. 

The U.S. Constitution establishes a legal framework under which the national 

government has the principal responsibility of conducting relations with America’s Native 

people. As it relates to the Native people of Hawaii, the United States has required in the Hawaii 

Admissions Act3

 not only that the State of Hawaii must assume 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

 but has further directed 

that revenues from lands ceded back to the State are to be used for five purposes, one of which is 

the betterment of the conditions of native Hawaiians. In addition, at the insistence of the United 

States, the Hawaii State Constitution explicitly recognizes the rights of Native Hawaiians to selfdetermination and self-governance. 

 2

 U.S. Department of Justice & U.S. Department of the Interior, From Mauka to Makai: The River of Justice Must

Flow Freely, Report on the Reconciliation Process Between the Federal Government and Native Hawaiians

(October 23, 2000), at 17. 3

 Pub. L. No. 83-3, § 5, 73 Stat. 4, 5 (March 18, 1959). 4

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

21
The Congress Has the Constitutional Power and Authority to Address the 

Conditions of the Indigenous, Native People of America 

 

Although those who first immigrated to America’s shores called the indigenous, native 

people they found here—“Indians”—the terms “Indians” and “Indios” were, for centuries, 

employed around the world to describe the indigenous, native people of other countries as well. 

Upon his arrival in Hawaii in 1778, Captain James Cook recorded in his diaries his discovery of 

the original inhabitants of Hawaii, referring to the native people as “Indians”. In a similar 

manner, the term “tribe” was the word Europeans assigned to the sovereign nations or groups of 

America’s indigenous, native people. 

 

While the U.S. Constitution vests the Congress with authority to conduct relations with 

Indian tribes, the U.S. Supreme Court has upheld the Congress’ exercise of its constitutional 

authority as applied to the indigenous, native people of Alaska – not all of whom are organized 

as Indian tribes. And since 1910, Congress has enacted over 160 Federal laws that address the 

conditions of the indigenous, native people of Hawaii. 

 

The indigenous, native people of America are not all “Indians” nor are they all organized 

as “tribes”, but they do share the same status under the U.S. Constitution and Federal law—a 

status which arises out of their inherent sovereignty and the fact that their sovereignty pre-existed 

the formation of the United States. 

 

As early as the 1830's, U.S. Supreme Court Chief Justice John Marshall articulated these 

principles in the Court’s rulings, and from that time forward, the Supreme Court has continued to 

sustain the constitutionality of Federal laws that are built upon the legal foundation of the 

political and legal relationships that the United States has had for more than two hundred years 

with the indigenous, native people who exercised sovereignty in America prior to the 

establishment of the United States—American Indians, Alaska Natives, and Native Hawaiians. 

 

In contemporary times, it is the U.S. Supreme Court’s rulings that have expressly held 

that those laws are not based on race or ethnicity, and that Congress has the authority to address 

the conditions of the indigenous, native people of the United States.5

In 1934, with the enactment of the Indian Reorganization Act, the Congress provided a 

process for the reorganization of tribal governments in Indian country—governments that had 

been discouraged by U.S. policies and laws from exercising their inherent sovereignty. The U.S. 

Supreme Court has repeatedly sustained Congress’ exercise of its constitutional authority in 

enacting the Indian Reorganization Act. 

 

S. 147 provides a process for the reorganization of a Native Hawaiian government so that 

the indigenous, native people of Hawaii might give expression to their rights as one group of 

 5 Morton v. Mancari, 417 U.S. 535 (1974). 

22
America’s native people to self-determination and self-governance, consistent with the United 

States’ policy of the past 36 years. 

23
Public Briefing on the Akaka Bill 

H. William Burgess6

 

For the last eight years, my wife and I have been advocating and litigating pro bono to bring to 

life in Hawaii the first of America’s self evident truths: That all men are created equal; i.e., that

every person, whatever his or her ancestry, is entitled to the equal protection of the laws. 

Since the summer of 2000, she and I, as part of our quest for equality for all, have been actively 

lobbying against the Akaka bill. 

 

Hawaiian entitlements and the Akaka bill have also had the attention of the Commission on Civil 

Rights for some time. In September 2000, the Commission sent several of its Commissioners 

and staff to Honolulu for a two-day forum devoted to the theory that Rice v. Cayetano (handed 

down by the United States Supreme Court on February 23, 2000) violated the civil rights of 

native Hawaiians and the way to overcome that was to pass the Akaka bill. 

That forum with the Hawaii Advisory Committee of the U.S. Commission on Civil Rights was 

entitled “The Impact of the Decision in Rice v. Cayetano on Entitlements.” I testified at that

hearing along with the late brilliant attorney, Patrick Hanifin, and Ken Conklin. But despite our 

testimony, the lengthy report published after that forum concluded and recommended that 

respect for the civil rights of Native Hawaiians required that they should have the option of 

seceding from the United States and becoming an independent nation. 

Now, over five years later, that far-out recommendation has not been followed; but the Akaka 

bill is still pending and it is still supported by powerful well-funded interests and it hangs like a 

cloud over the Aloha State. The many people in Hawaii who oppose the bill7

 are glad that the 

United States Commission on Civil Rights is now revisiting this important question. I urge you 

to now adhere to America’s highest ideals and recommend that Hawaii be preserved as one state 

undivided with equality and Aloha for all. 

Background of the Akaka Bill 

The original version of S. 147, commonly referred to as the “Akaka bill,” was first introduced in 

the year 2000 shortly after the Supreme Court, in Rice v. Cayetano, struck down the racial 

restriction on voting for the Office of Hawaiian Affairs. Because that decision threatened many 

other laws and programs for the “benefit” of Hawaiians, Senator Akaka with Senator Inouye’s 

endorsement, proposed candidly to circumvent the Supreme Court’s decision by having 

Congress “recognize” Hawaiians (defined substantially the same way the Supreme Court had 

held in Rice to be “racial”) as the equivalent of an Indian tribe. 

 

6 Aloha for All, is a multi-ethnic group of men and women, all residents, taxpayers and property owners in Hawaii. 

We believe that Aloha is for everyone; every citizen is entitled to the equal protection of the laws without regard to

her or his ancestry. For further information about the Akaka bill see: http://www.aloha4all.org (click on Q&A’s)

and http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html or email hwburgess@hawaii.rr.com. 

7. Hawaii residents oppose the bill by a margin of 2 to 1. The comprehensive statewide telephone survey 

completed July 10, 2005 shows 67% responding to the question are against the Akaka bill. 

24
The bill encountered resistance and did not pass in 2000 or subsequently. (It did pass a sparsely 

attended House in 2000 when Representative Abercrombie included it in a vote on noncontroversial items.) Efforts to attach it as a rider to appropriations bills in 2000, 2001 and 2004 

were defeated. Hawaii’s political leaders have resubmitted the bill to the 109th Congress as S. 

147 and H.R. 309. It was expected to reach the Senate floor before August 7, 2005, but that was 

postponed because of Hurricane Katrina and the replacement of Supreme Court Justice 

Rehnquist and later, Justice Sandra Day O’Connor. 

A Radical Change in Existing Law

Although the proponents assert the bill will simply give Native Hawaiians “parity” with the 

Federal Government's treatment of American Indians and Alaska Natives, that is not true. The 

bill would in reality make a radical change in existing law. The bill would give Native 

Hawaiians, merely because of their ancestry, something no American Indian has: the right to 

create the equivalent of a tribe where none now exists. 

For Native Americans, ancestry alone confers no special status. Membership in a tribe that has 

existed continuously is required. According to Census 2000, there are over 4 million people with 

some Native American ancestry. But less than 2 million of them are members of recognized 

tribes and only those recognized tribes can have a government-to-government relationship with 

the United States. 

Congress may “acknowledge” or “recognize” groups which have existed as tribes, i.e., 

autonomous quasi-sovereign governing entities, continuously from historic times to the present, 

see 25 C.F.R. § 83.7, but it has no power to create a tribe arbitrarily, see United States v. 

Sandoval, 231 U.S. 28 (1913). An attorney from the Department of Justice has put it succinctly, 

“We don’t create tribes out of thin air.”8 

 In 1790 (20 years before 1810 when he unified the Hawaiian islands), Kamehameha the Great 

brought John Young and Isaac Davis on to join his forces and welcomed them into his family. 

Non-natives thereafter continued to intermarry, assimilate and contribute to the governance 

under the great King and under every subsequent government of Hawaii since then, both in high 

governmental positions as cabinet members, judges, elected legislators, and as ordinary citizens. 

Unlike the history of Native Americans, there has never been in Hawaii, even during the years of 

the Kingdom, any “tribe” or government of any kind for Native Hawaiians separate from the 

government of the rest of Hawaii’s citizens. The Hawaiians-only nation the Akaka bill proposes 

to “reorganize” has never existed. See Patrick W. Hanifin, To Dwell on the Earth in Unity: 

Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawaii, at 

 

8 See generally Connecticut ex rel. Blumenthal v. United States Department of the Interior, 228 F.3d 82 (2nd Cir.

2000). Alice Thurston argued on behalf of the Secretary of the Interior, “When the Department of Interior

recognizes tribes, it is not saying, ‘You are a tribe.’ It is saying, ‘We recognize that your sovereignty exists.’ We 

don’t create tribes out of thin air.” JEFF BENEDICT, WITHOUT RESERVATION: HOW A CONTROVERSIAL INDIAN TRIBE 

ROSE TO POWER AND BUILT THE WORLD'S LARGEST CASINO 352 (2001). 

25
http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.pdf (last visited Mar. 15, 

2006). 

Our friends, neighbors, fellow professionals, judges, political leaders. aunties, uncles, nieces, 

nephews, calabash cousins, spouses and loved ones of Hawaiian ancestry are governed by the 

same federal, state and local governments as the rest of us. That is why Congress cannot use 

laws applicable to Indian tribes to create a new government in Hawaii. 

Senator Inouye, in his remarks on introduction of S. 147/H.R.309, see 151 CONG. REC. S450 

(daily ed., Jan. 25, 2005), concedes that federal Indian law does not provide the authority for 

Congress to create a Native Hawaiian governing entity: 

Because the Native Hawaiian government is not an Indian tribe, the body of Federal 

Indian law that would otherwise customarily apply when the United States extends 

Federal recognition to an Indian tribal group does not apply. 

That is why concerns which are premised on the manner in which Federal Indian law 

provides for the respective governmental authorities of the state governments and Indian 

tribal governments simply don't apply in Hawaii. 

There Being No Tribe, the Constitution Applies 

The Akaka bill stumbles over the Constitution with virtually every step it takes. 

• As soon as the bill is enacted, superior political rights are granted to Native Hawaiians, 

defined by ancestry in S. 147 §7(a). The U.S. is deemed to have recognized the right of 

Native Hawaiians to form their own new government and to adopt its organic governing 

documents. No one else in the United States has that right. This creates a hereditary 

aristocracy in violation of Article I, Sec. 9, U.S. Const. “No Title of Nobility shall be 

granted by the United States.” 

• Also, under S. 147 §8(a), upon enactment, the delegation by the United States of 

authority to the State of Hawaii to “address the conditions of the indigenous, native 

people of Hawaii” in the Admission Act “is reaffirmed.” This delegation to the State of 

authority to single out one ancestral group for special privilege would also seem to 

violate the prohibition against hereditary aristocracy. The Constitution forbids the United 

States from granting titles of nobility itself and also precludes the United States from

authorizing states to bestow hereditary privilege. 

• S. 147 §7(b)(2)(A) & (B) would require the Secretary of the Interior to appoint a 

commission of nine members who “shall be Native Hawaiian.” Restricting federal 

appointments based on race would violate the Equal Protection Clause of the Fifth 

Amendment, among other laws, and would require the Secretary to violate her oath to 

uphold the Constitution.

26
• Section 7(c) of the proposed legislation would require the Commission to prepare a roll 

of adult Native Hawaiians and the Secretary to publish the racially restricted roll in the

Federal Register and thereafter update it. Same Constitutional violations as immediately 

above. 

• Under Section 7(c)(2) of the proposed legislation, persons on the roll may develop the 

criteria and structure of an Interim Governing Council and elect members from the roll 

to that Council. Racial restrictions on electors and upon candidates both violate the 

Fifteenth Amendment and the Voting Rights Act. 

• Under Section 7(c)(2)(B)(iii)(I) of the proposed legislation, the Council may conduct a 

referendum among those on the roll to determine the proposed elements of the organic 

governing documents of the Native Hawaiian governing entity. Racial restrictions on 

persons allowed to vote in the referendum would violate the Fifteenth Amendment and 

the Voting Rights Act. 

• Under Section 7(c)(2)(B)(iii)(IV) of the proposed legislation, the Council, based on the 

referendum, may develop proposed organic documents and hold elections by persons on 

the roll to ratify them. This would be the third racially restricted election and third 

violation of the Fiftteenth Amendment and the Voting Rights Act. 

• Section 7(c)(4)(A) would require the Secretary to certify that the organic governing 

documents comply with seven listed requirements. Use of the roll to make the 

certification would violate the Equal Protection Clause of the Fifth Amendment, among 

other laws, and would, again, require the Secretary to violate her oath to uphold the 

Constitution. 

• Under Section 7(c)(5) of the proposed legislation, once the Secretary issues the 

certification, the Council may hold elections of the officers of the new government. If 

these elections restrict the right to vote based on race, as seems very likely, they would

violate the Fifteenth Amendment and the Voting Rights Act. 

• Under Section 7(c) of the proposed legislation, upon the election of the officers, the 

United States, without any further action of Congress or the Executive Branch, would 

“reaffirm the political and legal relationship between the U.S. and the Native Hawaiian 

governing entity” and would recognize the Native Hawaiian governing body as the 

“representative governing body of the Native Hawaiian people.” This would violate the 

Equal Protection clause of the Fifth and Fourteenth Amendments by giving one racial 

group political power and status and their own sovereign government. These special 

relationships with the United States are denied to any other citizens. 

• Under Section 8(b) of the proposed legislation, the three governments would then be 

permitted to then negotiate an agreement for the transfer of lands, natural resources and 

other assets; the delegation of governmental power and authority to the new government; 

the exercise of civil and criminal jurisdiction by the new government; and the “residual 

responsibilities” of the United States and the State of Hawaii to the new government. 

27
This carte blanche grant of authority to officials of the State and Federal governments to 

agree to give away public lands, natural resources and other assets to the new 

government, without receiving anything in return, is beyond all existing constitutional 

limitations on the power of the Federal and State of Hawaii executive branches. Even

more extreme is the authority to surrender the sovereignty and jurisdiction of the State of

Hawaii over some or all of the lands and surrounding waters of some or all of the islands 

of the State of Hawaii and over some or all of the people of Hawaii. Likewise, the 

general power to commit the Federal and State governments to “residual responsibilities” 

to the new Native Hawaiian government. 

• Under Section 8(b)(2) of the proposed legislation, the three governments would be 

permitted to, but would not be required to, submit to Congress and to the Governor and 

legislature of the State of Hawaii amendments to federal and state laws that will enable

implementation of the agreement. Treaties with foreign governments require the 

approval of two-thirds of the Senate. Constitutional amendments require the consent of

the citizens. But the Akaka bill does not require the consent of the citizens of Hawaii or 

of Congress or of the State of Hawaii legislature to the terms of the agreement. Under the 

bill, the only mention is that the parties may recommend amendments to implement the 

terms to which they have agreed. 

Given the dynamics at the bargaining table created by the bill—where the State officials 

are driven by the same urge they now exhibit, to curry favor with what they view as the 

“swing” vote; where Federal officials are perhaps constrained with a similar inclination; 

and where the new Native Hawaiian government officials have the duty to their 

constituents to demand the maximum—it is not likely that the agreement reached will be 

moderate or that any review by Congress or the Hawaii legislature will be sought if it can 

be avoided. More likely is that the State will proceed under the authority of the Akaka 

bill to promptly implement whatever deal has been made. 

The Myth of Past Injustices and Economic Deprivations 

Contrary to the claims of the bill supporters, the United States took no lands from Hawaiians at 

the time of the 1893 revolution or the 1898 Annexation (or at any other time), and it did not 

deprive them of sovereignty. As part of the Annexation Act, the United States provided 

compensation by assuming the debts of about $4 million which had been incurred by the 

Kingdom. The lands ceded to the Untied States were government lands under the Kingdom held 

for the benefit of all citizens without regard to race. They still are. Private land titles were 

unaffected by the overthrow or annexation. Upon annexation, ordinary Hawaiians became full 

citizens of the United States with more freedom, security, opportunity for prosperity and 

sovereignty than they ever had under the Kingdom. 

Nor do Native Hawaiians suffer from the grinding poverty of Native American tribes. The 

Senate Indian Affairs Committee notes that “the vast majority of Native economies are 

moribund” “with unemployment averaging 45 percent” and that “per capita income for Indians 

28
averages $8,284.” See Committee on Indian Affairs, United States Senate, Views and Estimates 

of the FY 2005 Budget Request 3-4 (Mar. 3, 2004), at 

http://www.nihb.org/docs/fy05_scia_views.pdf (last visited Mar. 15, 2006). 

By contrast, Census 2000 shows per capita income for Native Hawaiians in Hawaii at $14,199 

and median family income of $49,282. For the 60,000 Native Hawaiians residing in California, 

where they are free from the incentive-smothering entitlement programs provided in Hawaii, the 

per capita income of Native Hawaiians is $19,881 and median family income is $55,770. 

Striking evidence that Native Hawaiians are fully capable of prospering, without being wards of 

the Department of the Interior and without entitlements from the State of Hawaii, is shown in the 

Census 2000 reports of median per capita income of male, full time, year-round Native Hawaiian 

workers: $33,258 in Hawaii and $38,997 in California. 

Hawaiians today are no different, in any constitutionally significant way, from any other ethnic 

group in Hawaii’s multi-ethnic, intermarried, integrated society. Like all the rest of us, some do 

well, some do not and most are somewhere in between. 

Rejection of Democracy and Aloha 

Today the State of Hawaii is, by law as well as by aspiration, a multiracial, thoroughly integrated 

state. The Akaka bill is a frontal assault on both Aloha and the American ideal of equality under 

the law. It would elevate one racial group to the status of a hereditary elite to be supported by 

citizens who are not of the favored race. As United States District Judge Helen Gillmor said in 

Arakaki I, “This Court is mindful that ours is a political system that strives to govern its citizens 

as individuals rather than as groups. The Supreme Court’s brightest moments have affirmed this 

idea (citing Brown v. Board of Education and other cases), while its darkest moments have 

rejected this concept (citing Dred Scott, Plessy v. Ferguson, Bradwell v. Illinois and 

Korematsu).” Arakaki v. Hawaii, 2000 U.S. Dist. LEXIS 22394, *3-4 (D. Hi. 2000). 

For a comprehensive section-by-section analysis of the bill, please see Paul Sullivan, Killing 

Aloha: The Native Hawaiian Recognition Bill is Wrong for Native Hawaiians, Wrong for the 

State of Hawaii, and Wrong for the United States, at 

http://www.angelfire.com/hi5/bigfiles2/AkakaSullivan012505.pdf (last visited Mar. 15, 2006). 

 

Keep Hawaii One State Indivisible

Carving up Hawaii into separate sovereign enclaves would hurt all of us, whether we are of 

Hawaiian or any other ancestry. A house divided against itself cannot stand. The Constitution 

“looks to an indestructible union, composed of indestructible States.” Texas v. White, 7 Wallace 

700 (1869). 

29
The Authority of Congress to Establish a Process for Recognizing a Reconstituted 

Native Hawaiian Governing Entity 

Viet D. Dinh 

H. Christopher Bartolomucci 

This chapter addresses Congress’ authority to enact S. 147, the proposed Native 

Hawaiian Government Reorganization Act of 2005 (“NHGRA”), which establishes a process for 

reconstituting and recognizing the Native Hawaiian governing entity. We conclude that Congress 

has the constitutional authority to enact the Native Hawaiian Government Reorganization Act of

2005. 

Congress possesses plenary and exclusive power under the Constitution to enact special 

legislation to deal with Native Americans. This authority, inherent in the Constitution and 

explicit in the Indian Commerce Clause, art. I, § 8, cl. 3, and Treaty Clause, art. II, § 2, cl. 2, 

extends to dealings with Native Hawaiians, especially given the particular moral and legal 

obligations the United States assumed for its role in effecting a forcible end to the Kingdom of 

Hawaii in 1893. 

Rice v. Cayetano, 528 U.S. 495 (2000), is not to the contrary. The Supreme Court there 

expressly declined to address whether “native Hawaiians have a status like that of Indians in 

organized tribes” and “whether Congress may treat the native Hawaiians as it does the Indian 

tribes.” Id. at 518. The conclusion that granting Native Hawaiians special voting rights in 

connection with the election of a state governmental official violates the Equal Protection Clause 

does not speak to whether Congress has the authority to reaffirm the status of Native Hawaiians 

as an indigenous, self-governing people and reestablish a government-to-government 

relationship: 

The decisions of this Court leave no doubt that federal legislation with respect to Indian 

tribes, although relating to Indians as such, is not based upon impermissible racial 

classifications. Quite the contrary, classifications expressly singling out Indian tribes as 

subjects of legislation are expressly provided for in the Constitution and supported by the 

ensuing history of the Federal Government’s relations with Indians. 

United States v. Antelope, 430 U.S. 641, 645 (1977). 

I. The Native Hawaiian Government Reorganization Act 

The stated purpose of the NHGRA is “to provide a process for the reorganization of the 

Native Hawaiian governing entity and the reaffirmation of the political and legal relationship 

between the United States and the Native Hawaiian governing entity for purposes of continuing a 

government-to-government relationship.” NHGRA § 4(b). To that end, the NHGRA authorizes 

the Secretary of the Interior to establish a Commission that will prepare and maintain a roll of

Native Hawaiians wishing to participate in the reorganization of the Native Hawaiian governing 

30
entity. Id. § 7(b). For the purpose of establishing the roll, the NHGRA defines the term “Native 

Hawaiian” as: 

(A) an individual who is one of the indigenous, native people of Hawaii and who is a 

direct lineal descendant of the aboriginal, indigenous, native people who (i) resided in the 

islands that now comprise the State of Hawaii on or before January 1, 1893; and (ii) 

occupied and exercised sovereignty in the Hawaiian archipelago, including the area that 

now constitutes the State of Hawaii; or (B) an individual who is one 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. 

Id. § 3(8). 

Through the preparation and maintenance of the roll of Native Hawaiians, the 

Commission will set up a Native Hawaiian Interim Governing Council called for by the 

NHGRA. Id. § 7(c)(2). Native Hawaiians listed on the roll may develop criteria for candidates to 

be elected to serve on the Council; determine the Council’s structure; and elect members of the 

Council from enrolled Native Hawaiians. Id. § 7(c)(2)(A). 

The NHGRA provides that the Council may conduct a referendum among enrolled 

Native Hawaiians “for the purpose of determining the proposed elements of the organic 

governing documents of the Native Hawaiian governing entity.” Id. § 7(c)(2)(B)(iii)(I). 

Thereafter, the Council may hold elections for the purpose of ratifying the proposed organic 

governing documents and electing the officers of the Native Hawaiian governing entity. Id. § 

7(c)(2)(B)(iii)(IV). 

II. Congress’ Authority to Enact the NHGRA 

Congressional authority to enact S. 147 encompasses two subordinate questions: First, 

would Congress have the power to adopt such legislation for members of a Native American 

tribe in the contiguous 48 states? Second, does such power extend to Native Hawaiians? The 

answer to both questions is yes, especially given the moral and legal obligations the United 

States acquired for overthrowing the then-sovereign Kingdom of Hawaii in 1893. 

A. Congress’ Broad Power to Deal with Indians Includes the Power to Restore 

Sovereignty to, and Reorganize the Government of, Indian Tribes 

There is little question that Congress has the power to recognize Indian tribes. As the 

Supreme Court explained recently, “the Constitution grants Congress broad general powers to 

legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and 

exclusive.’ ” United States v. Lara, 541 U.S. 193, 200 (2004). See also South Dakota v. Yankton 

Sioux Tribe, 522 U.S. 329, 343 (1998) (“Congress possesses plenary power over Indian affairs”); 

Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 531 n.6 (1998) (same); 20 U.S.C. 

§ 4101(3) (finding that the Constitution “invests the Congress with plenary power over the field 

31
of Indian affairs”). The NHGRA expressly recites and invokes this constitutional authority. See 

NHGRA § 2(1) (“The Constitution vests Congress with the authority to address the conditions of 

the indigenous native people of the United States.”); id. § 4(a)(3). 

This broad congressional power derives from a number of constitutional provisions, 

including the Indian Commerce Clause, art. I, § 8, cl. 3, which grants Congress the power to 

“regulate Commerce * * * with the Indian Tribes,” as well as the Treaty Clause, art. II, § 2, cl. 2. 

See Lara, 541 U.S. at 200-01; Morton v. Mancari, 417 U.S. 535, 552 (1974). Other sources of 

constitutional authority include the Debt Clause, art. I, § 8, cl. 1, see United States v. Sioux 

Nation of Indians, 448 U.S. 371, 397 (1980); see also Pope v. United States, 323 U.S. 1, 9 (1944) 

(“The power of Congress to provide for the payment of debts, conferred by § 8 of Article I of the 

Constitution, is not restricted to payment of those obligations which are legally binding on the 

Government. It extends to the creation of such obligations in recognition of claims which are 

merely moral or honorary.”); and the Property Clause, art. IV, § 3, cl. 2, see Alaska Pacific 

Fisheries v. United States, 248 U.S. 78, 87-88 (1918); see also Alabama v. Texas, 347 U.S. 272, 

273 (1954) (per curiam) (“The power of Congress to dispose of any kind of property belonging 

to the United States is vested in Congress without limitation.”) (internal quotation marks 

omitted).9

Congress’ legislative authority with respect to Indians also rests in part “upon the 

Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal 

Government, namely power that this Court has described as ‘necessary concomitants of 

nationality.’ ” Lara, 124 S. Ct. at 1634 (citing, inter alia, United States v. Curtiss-Wright Export 

Corp., 299 U.S. 304, 315-322 (1936)). See also Morton v. Mancari, 417 U.S. at 551-552 (“The 

plenary power of Congress to deal with the special problems of Indians is drawn both explicitly 

and implicitly from the Constitution itself.”) (emphasis added). 

Plenary congressional authority to recognize Indian tribes extends to the restoration and 

reorganization of tribal sovereignty. In Lara, the Court held that Congress’ broad authority with 

respect to Indians includes the power to enact legislation designed to “relax restrictions” on 

“tribal sovereign authority.” 124 S. Ct. at 196, 202. “From the Nation’s beginning,” the Court 

said, “Congress’ need for such legislative power would have seemed obvious.” Id. at 202. The 

Court explained that “the Government’s Indian policies, applicable to numerous tribes with 

diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as 

the needs of the Nation and those of the tribes changed over time,” and “[s]uch major policy 

changes inevitably involve major changes in the metes and bounds of tribal sovereignty.” Id. The 

Court noted that today congressional policy “seeks greater tribal autonomy within the framework 

of a ‘government-to-government’ relationship with federal agencies.” Id. (quoting 59 Fed. Reg. 

22,951 (1994)). 

Of particular significance to the present analysis, the Court in Lara specifically 

recognized Congress’ power to restore previously extinguished sovereign relations with Indian 

 

9 As discussed herein, see infra at 16-17, Congress in 1921 set aside some 200,000 acres of public land 

for the benefit of Native Hawaiians. The NHGRA is related to, and would help to realize the purpose of, 

that exercise of the Property Clause power by commencing a process that would result in the 

identification of the proper beneficiaries of Congress’ set aside. 

32
tribes. The Court observed that “Congress has restored previously extinguished tribal status -- by 

re-recognizing a Tribe whose tribal existence it previously had terminated.” Id. (citing Congress’ 

restoration of the Menominee tribe in 25 U.S.C. §§ 903-903f). And the Court cited the 1898 

annexation of Hawaii as an example of Congress’ power “to modify the degree of autonomy

enjoyed by a dependent sovereign that is not a State.” Id. Thus, when it comes to the sovereignty 

of Indian tribes or other “domestic dependent nations,” Cherokee Nation v. Georgia, 30 U.S. 1, 

17 (1831), the Constitution does not “prohibit Congress from changing the relevant legal 

circumstances, i.e., from taking actions that modify or adjust the tribes’ status,” and it is not for 

the federal judiciary to “second-guess the political branches’ own determinations” in that regard. 

Lara, 124 S. Ct. at 205. 

United States v. John, 437 U.S. 634 (1978), further supports congressional authority to 

recognize reconstituted tribal governments and to reestablish sovereign relations with them. 

There, Congress’ power to legislate with respect to the Choctaw Indians of Mississippi was 

challenged on grounds that “since 1830 the Choctaw residing in Mississippi have become fully 

assimilated into the political and social life of the State” and that “the Federal Government long 

ago abandoned its supervisory authority over these Indians.” Id. at 652. It was thus urged that to 

“recognize the Choctaws in Mississippi as Indians over whom special federal power may be 

exercised would be anomalous and arbitrary.” Id. The Court unanimously rejected the 

argument. “[W]e do not agree that Congress and the Executive Branch have less power to deal 

with the affairs of the Mississippi Choctaw than with the affairs of other Indian groups.” Id. at 

652-653. The “fact that federal supervision over them has not been continuous,” according to 

the Court, does not “destroy[... ] the federal power to deal with them.” Id. at 653. 

Congress exercised this established authority to restore the government-to-government 

relationship with the Menominee Indian tribe of Wisconsin, see Lara, 541 U.S. at 203-204, and it 

can do the same here. Indeed, the NHGRA government reorganization process closely 

resembles that prescribed by the Menominee Restoration Act, 25 U.S.C. §§ 903-903f. 

In 1954, Congress adopted the Menominee Indian Termination Act, 25 U.S.C. §§ 891-

902, which terminated the government-to-government relationship with the tribe, ended federal 

supervision over it, closed its membership roll, and provided that “the laws of the several States 

shall apply to the tribe and its members in the same manner as they apply to other citizens or 

persons within their jurisdiction.” Menominee Tribe of Indians v. United States, 391 U.S. 404, 

407-410 (1968). In 1973, Congress reversed course and adopted the Menominee Restoration 

Act, which repealed the Termination Act, restored the sovereign relationship with the tribe, 

reinstated the tribe’s rights and privileges under federal law, and reopened its membership roll. 

25 U.S.C. §§ 903a(b), 903b(c). 

The Menominee Restoration Act established a process for reconstituting the Menominee 

tribal leadership and organic documents under the direction of the Secretary of the Interior. The 

Restoration Act directed the Secretary to: (a) announce the date of a general council meeting of 

the tribe to nominate candidates for election to a newly-created, nine-member Menominee 

Restoration Committee; (b) hold an election to elect the members of the Committee; and (c) 

approve the Committee so elected if the Restoration Act’s nomination and election requirements 

were met. Id. § 903b(a). Just so with S. 147. The NHGRA authorizes the Secretary of the 

33
Interior to establish a Commission that will prepare and maintain a roll of Native Hawaiians

wishing to participate in the reorganization of the Native Hawaiian governing entity. NHGRA § 

7(b). The NHGRA provides for the establishment of a Native Hawaiian Interim Governing 

Council. Id. § 7(c)(2). Native Hawaiians listed on the roll may develop criteria for candidates to 

be elected to serve on the Council; determine the Council’s structure; and elect members of the 

Council from enrolled Native Hawaiians. Id. § 7(c)(2)(A). 

The Menominee Restoration Act provided that, following the election of the Menominee 

Restoration Committee, and at the Committee’s request, the Secretary was to conduct an election 

“for the purpose of determining the tribe’s constitution and bylaws.” Id. § 903c(a). After the 

adoption of such documents, the Committee was to hold an election “for the purpose of 

determining the individuals who will serve as tribal officials as provided in the tribal constitution 

and bylaws.” Id. § 903c(c). Likewise, the NHGRA provides that the Native Hawaiian Interim

Governing Council may conduct a referendum among enrolled Native Hawaiians “for the 

purpose of determining the proposed elements of the organic governing documents of the Native 

Hawaiian governing entity.” Id. § 7(c)(2)(B)(iii)(I). Thereafter, the Council may hold elections 

for the purpose of ratifying the proposed organic governing documents and electing the officers 

of the Native Hawaiian governing entity. Id. § 7(c)(2)(B)(iii)(IV). 

The courts have approved the process set forth in the Menominee Restoration Act to 

restore sovereignty to the Menominee Indians. See Lara, 541 U.S. at 203 (citing the Restoration 

Act as an example where Congress “restored previously extinguished tribal rights”); United 

States v. Long, 324 F.3d 475, 483 (7th Cir.) (concluding that Congress had the power to 

“restor[e] to the Menominee the inherent sovereign power that it took from them in 1954”), cert. 

denied, 540 U.S. 822 (2003). The teachings of these cases would apply to validate the similar 

process set forth in NHGRA. 

B. Congress’ Power to Enact Special Legislation with Respect to Indians Extends to 

Native Hawaiians 

 

The inquiry, therefore, turns to whether Congress has the same authority to deal with 

Native Hawaiians as it does with other Native Americans in the contiguous 48 states. Congress 

has concluded that it has such authority. See NHGRA § 4(a)(3) (finding that Congress “possesses 

the authority under the Constitution, including but not limited to Article I, section 8, clause 3, to 

enact legislation to address the conditions of Native Hawaiians”); 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.”). We conclude that courts will likely 

affirm these assertions of congressional authority.10 

Under United States v. Sandoval, 231 U.S. 28 (1913), Congress has the authority to 

recognize and deal with native groups pursuant to its Indian affairs power, and courts have only a 

 

10 Rice v. Cayetano did not decide the issue. On the contrary, the Supreme Court in Rice expressly declined to 

answer the questions whether “native Hawaiians have a status like that of Indians in organized tribes” and “whether

Congress may treat the native Hawaiians as it does the Indian tribes.” 528 U.S. at 518.

34
very limited role in reviewing the exercise of such congressional authority. In Sandoval, the 

Supreme Court rejected the argument that Congress lacked authority to treat the Pueblos of New 

Mexico as Indians and that the Pueblos were “beyond the range of congressional power under 

the Constitution.” Id. at 49. 

The Court first observed that “[n]ot only does the Constitution expressly authorize 

Congress to regulate commerce with the Indian tribes, but long continued legislative and 

executive usage and an unbroken current of judicial decisions have attributed to the United States 

* * * the power and duty of exercising a fostering care and protection over all dependent Indian 

communities within its borders, whether within its original territory or territory subsequently 

acquired, and whether within or without the limits of a state.” Id. at 45-46. The Court went on 

to say that, although “it is not meant by this that Congress may bring a community or body of 

people within the range of this power by arbitrarily calling them an Indian tribe,” nevertheless, 

“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, and not by the courts.” Id. at 46. Applying those principles, the 

Supreme Court concluded that Congress’ “assertion of guardianship over [the Pueblos] cannot be 

said to be arbitrary, but must be regarded as both authorized and controlling.” Id. 

at 47. And the Court so held even though the Pueblos differed (in the Court’s view) 

in some respects from other Indians: They were not “nomadic in their inclinations”; 

they were “disposed to peace”; they “liv[ed] in separate and isolated communities”; their lands 

were “held in communal, fee-simple ownership under grants from the King of Spain”; and they 

possibly had become citizens of the United States. Id. at 39. 

Sandoval thus holds, first, that Congress, in exercising its constitutional authority to deal 

with Indian tribes, may determine whether a “community or body of people” is amenable to that 

authority, and, second, that unless Congress acts “arbitrarily,” courts do not second-guess 

Congress’ determination.11 

It cannot be said that the NHGRA is an arbitrary exercise of Congress’ power to 

recognize and deal with this Nation’s native peoples. Congress has expressly found, in the 

NHGRA and other statutes, that Native Hawaiians are like other Native Americans. See NHGRA 

§ 2(2) (finding that Native Hawaiians “are indigenous, native people of the United States”); Id. § 

2(20)(B) (Congress “has identified Native Hawaiians as a distinct group of indigenous, native 

people of the United States within the scope of its authority under the Constitution, and has 

enacted scores of statutes on their behalf”); id. § 4(a)(1); Native American Languages Act, 25 

U.S.C. § 2902(1) (“The term ‘Native American’ means an Indian, Native Hawaiian, or Native 

American Pacific Islander”); American Indian Religious Freedom Act, 42 U.S.C. § 1996 

(declaring it to be the policy of the United States “to protect and preserve for American Indians 

their inherent right of freedom to believe, express, and exercise the traditional religions of the 

 

11 See also Lara, 541 U.S. at 205 (federal judiciary should not “second-guess the political branches’ own 

determinations” with respect to “the metes and bounds of tribal autonomy”); United States v. McGowan, 302 U.S. 

535, 538 (1938) (“Congress alone has the right to determine the manner in which this country’s guardianship over 

the Indians shall be carried out”); Long, 324 F.3d at 482 (“[W]hile we assume that Congress neither can nor would

confer the status of a tribe onto a random group of people, we have no doubt about congressional power to recognize 

an ancient group of people for what they are.”); cf. Alaska v. Native Village of Venetie, 522 U.S. at 534 (“Whether 

the concept of Indian country should be modified is a question entirely for Congress.”). 

35
American Indian, Eskimo, Aleut, and Native Hawaiians”); 42 U.S.C. § 11701(1) (finding that 

“Native Hawaiians comprise a distinct and unique indigenous people with a historical continuity 

to the original inhabitants of the Hawaiian archipelago whose society was organized as a Nation 

prior to the arrival of the first nonindigenous people in 1778”). 

Congress’ authority to treat Native Hawaiians as American Indians is supported by the 

numerous statutes Congress has enacted doing just that. See, e.g., Hawaiian Homes Commission 

Act, 42 Stat. 108 (1921); Native Hawaiian Education Act, 20 U.S.C. §§ 7511-7517; Hawaiian 

Homelands Homeownership Act, 25 U.S.C. §§ 4221-4243; Native Hawaiian Health Care Act, 42 

U.S.C. 11701(19) (noting Congress’ “enactment of federal laws which extend to the Hawaiian 

people the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and 

Aleut communities”); see also Statement of U.S. Representative Ed Case, Hearing Before the 

Senate Committee on Indian Affairs on S. 147, the Native Hawaiian Government Reorganization 

Act, at 2-3 (March 1, 2005) (“[O]ver 160 federal statutes have enacted programs to better the 

conditions of Native Hawaiians in areas such as Hawaiian homelands, health, education and 

economic development, all exercises of Congress’ plenary authority under our U.S. Constitution 

to address the conditions of indigenous peoples.”) (prepared text) (hereinafter, “Senate Indian 

Affairs Committee Hearing on S. 147”); cf. Apology Resolution, Pub. L. No. 103-150, 107 Stat. 

1510 (1993). No court has struck down any of these numerous legislative actions as 

unconstitutional. 

That Congress has power to enact special legislation for Native Hawaiians is made clear 

by congressional action dealing with Native Alaskans, who-- like Native Hawaiians -- differ 

from American Indian tribes anthropologically, historically, and culturally. In 1971, Congress 

adopted the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. §§ 1601-1629h, which 

is predicated on the view that congressional power to deal with Native Alaskans is coterminous 

with its plenary authority relating to American Indian tribes. See 43 U.S.C. § 1601(a) (finding a 

need for settlement of all claims “by Natives and Native groups of Alaska”); id. § 1602(b) 

(defining “Native” as a U.S. citizen “who is a person of one-fourth degree of more Alaska Indian 

* * * Eskimo, or Aleut blood, or combination thereof.”); id. § 1604(a) (directing the Secretary of 

the Interior to prepare a roll of all Alaskan Natives). The Supreme Court has never questioned 

the authority of Congress to enact such legislation. See Alaska v. Native Village of Venetie, 

supra; 

Morton v. Ruiz, 415 U.S. 199, 212 (1974) (quoting passage of Brief for Petitioner the 

Secretary of the Interior referring to “Indians in Alaska and Oklahoma”); see also Pence v. 

Kleppe, 529 F.2d 135, 138 n.5 (9th Cir. 1976) (when the term “Indians” appears in federal 

statutes, that word “as applied in Alaska, includes Aleuts and Eskimos”). If Congress has 

authority to enact special legislation dealing with Native Alaskans, it follows that Congress has 

the same authority with respect to Native Hawaiians. 

Finally, the history of the Hawaiian people confirms that the story of the Hawaiian 

people, although unique in some respects, is in other ways very similar to the story of all Native 

Americans. By the time Captain Cook, the first white traveler to Hawaii, “made landfall in 

Hawaii on his expedition in 1778, the Hawaiian people had developed, over the preceding 1,000 

years or so, a cultural and political structure of their own. They had well-established traditions 

and customs and practiced a polytheistic religion.” Rice, 528 U.S. at 500. Hawaiian society, the 

36
Court noted, was one “with its own identity, its own cohesive forces, its own history.” Id. As 

late as 1810, “the islands were united as one kingdom under the leadership of an admired figure 

in Hawaiian history, Kamehameha I.” Id. at 501. King Kamehameha had united the islands and 

“reasserted suzerainty over all lands.” Id. 

The Nineteenth Century is “a story of increasing involvement of westerners in the 

economic and political affairs of the Kingdom.” Id. During this period, the United States 

established a government-to-government relationship with the Kingdom of Hawaii. Between 

1826 and 1887, the two nations executed a number of treaties and conventions. See id. at 504. 

In 1893, “a group of professionals and businessmen, with the active assistance of John 

Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, 

replaced the monarchy [of Queen Liliuokalani] with a provisional government.” Id. at 505. In 

1894, the U.S.-created provisional government then established the Republic of Hawaii. See id. 

In 1898, President McKinley signed the Newlands Resolution, which annexed Hawaii as a U.S. 

territory. See id.; Territory of Hawaii v. Mankichi, 190 U.S. 197, 209-211 (1903) (discussing the 

annexation of Hawaii); Lara, 541 U.S. at 203-204 (citing the annexation of Hawaii as an 

example of Congress’ adjustment of the autonomous status of a dependent sovereign). 

Under the instrument of annexation, the so-called Newlands Resolution, the Republic of 

Hawaii ceded all public lands to the United States, and the revenue from such lands was to be 

“used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other 

public purposes.” Rice, 528 U.S. at 505. In 1921, concerned about the deteriorating conditions 

of the Native Hawaiian people, Congress passed the Hawaiian Homes Commission Act, “which 

set aside about 200,000 acres of the ceded public lands and created a program of loans and longterm leases for the benefit of native Hawaiians.” Id. at 507. 

In 1959, Hawaii became the 50th State of the United States. See id. In connection with 

its admission to the Union, Hawaii agreed to adopt the Hawaiian Homes Commission Act as part 

of the Hawaii Constitution, and the United States adopted legislation transferring title to some

1.4 million acres of public lands in Hawaii to the new State, which lands and the revenues they 

generated were by law to be held “as a public trust” for, among other purposes, “the betterment 

of the conditions of Native Hawaiians.” Id. (quoting Admission Act, Pub. L. No. 86-3, § 5(f), 73 

Stat. 5, 6). 

In short, the story of the Native Hawaiian people is the story of an indigenous people 

having a distinct culture, religion, and government. Contact with the West brought decimation 

of the native population through foreign diseases; a period of government-to-government treaty 

making with the United States; the involvement of the U.S. Government in overthrowing the 

Native Hawaiian government; the establishment of the public trust relationship between the U.S. 

Government and Native Hawaiians; and, finally, political union with the United States. Given 

the parallels between the history of Native Hawaiians and other Native Americans, Congress has 

ample basis to conclude that it has the coterminous power to deal with the Native Hawaiian 

community as it has to deal with American Indian tribes. Cf. Long, 324 F.3d at 482 (“This case 

37
does not involve a people unknown to history before Congress intervened. * * * [W]e have no 

doubt about congressional power to recognize an ancient group of people for what they are.”).12 

Finally, Congress has found that Native Hawaiians through the present day have 

maintained a link to the Native Hawaiians who exercised sovereign authority in the past; have

never abandoned their claim to be a sovereign people; and have maintained a distinct cultural 

and social identity. See NHGRA § 2(13) (“[T]he Native Hawaiian people never directly 

relinquished to the United States their claims to their inherent sovereignty as people over their 

national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum.”); 

Id. § 2(15) (“Native Hawaiians have continued to maintain their separate identity as a distinct 

native community through cultural, social, and political institutions”); Id. § 2(22)(A) (“Native 

Hawaiians have a cultural, historic, and land-based link to the aboriginal, indigenous, native 

people who exercised sovereignty over the Hawaiian Islands”); id. § 2(22)(B); see also U.S. 

Department of Justice & U.S. Department of the Interior, From Mauka to Makai: The River of 

Justice Must Flow Freely, Report on the Reconciliation Process Between the Federal 

Government and Native Hawaiians at 4 (Oct. 23, 2000) (finding 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”). 

In 1993, a century after the Kingdom of Hawaii was replaced with the active involvement 

of the U.S. Minister and the American military, “Congress passed a Joint Resolution recounting 

the events in some detail and offering an apology to the native Hawaiian people.” Rice, 528 U.S. 

at 505. See Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (1993). In the Apology 

Resolution, Congress both “acknowledge[d] the historical significance of this event which 

resulted in the suppression of the inherent sovereignty of the Native Hawaiian people” and issued 

a formal apology to Native Hawaiians “for the overthrow of the Kingdom of Hawaii on January 

17, 1893 with the participation of agents and citizens of the United States, and the deprivation of 

the rights of Native Hawaiians to self-determination.” Id. §§ 1, 3, 107 Stat. 1513. 

C. The Responsibility of the U.S. Government for Contributing to the Overthrow of 

the Hawaiian Kingdom Reinforces Congress’ Moral and Legal Authority to Enact 

the NHGRA 

Congress’ moral and legal authority to establish a process for the reorganization of the 

Native Hawaiian governing entity also derives from the role played by the United States -- in 

particular the U.S. Minister to Hawaii, John Stevens, aided by American military forces -- in 

bringing a forcible end to the Kingdom of Hawaii in 1893. 

 

12 In Montoya v. United States, 180 U.S. 261, 266 (1901), the Supreme Court stated that “[b]y a ‘tribe’ we

understand 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.” In so stating, the Court in 

Montoya did not intend to, and did not, circumscribe Congress’ authority to recognize Indian tribes. In any event, 

the community of Native Hawaiian people fit within the Montoya definition of a tribe: Native Hawaiians were, and 

are, of a “same or similar” race, had a unitary governmental system prior to is overthrow, and have inhabited the

Hawaiian Islands. 

38
As Congress recounted in the Apology Resolution, the U.S. Minister to the sovereign and 

independent Kingdom of Hawaii in January 1893 “conspired with a small group of nonHawaiian residents of the Kingdom of Hawaii, including citizens of the United States, to 

overthrow the indigenous and lawful Government of Hawaii.” 107 Stat. 1510. In pursuit of that 

objective, U.S. Minister Stevens “and the naval representatives of the United States caused 

armed naval forces of the United States to invade the sovereign Hawaii nation on January 16, 

1893, and to position themselves near the Hawaiian Government buildings and the Iolani Palace 

to intimidate Queen Liliuokalani and her Government.” Id. See also S. Rep. No. 108-85, 108th 

Cong., 2d Sess. 11 (2003) (on the orders of the U.S. Minister, “American soldiers marched 

through Honolulu, to a building known as Ali’iolani Hale, located near both the government 

building and the palace”); Rice, 528 U.S. at 504-505. The next day, the Queen issued a 

statement indicating that she would yield her authority “to the superior force of the United States 

of America whose Minister Plenipotentary, His Excellency John L. Stevens, has caused United 

States troops to be landed at Honolulu.” 107 Stat. 1511. The United States, quite simply, 

effected regime change in Hawaii because “without the active support and intervention by the 

United States diplomatic and military representatives, the insurrection against the Government of

Queen Liliuokalani would have failed for lack of popular support and insufficient arms.” Id. In 

December 18, 1893, President Cleveland described the Queen’s overthrow “as an ‘act of war,’ 

committed with the participation of a diplomatic representative of the United States and without 

the authority of Congress.” Id. 

Given the role of United States agents in the overthrow of the Kingdom of Hawaii, 

Congress could conclude that its “unique obligation toward the Indians,” Morton v. Mancari, 417 

U.S. at 555, extends to Native Hawaiians. Congress’ power to enact special legislation dealing 

with native people of America is derived from the Constitution, “both explicitly and implicitly.”

Id. at 551 (emphasis added). See Lara, 541 U.S. at 201 (to the extent that, through the late 19th 

Century, Indian affairs were a feature of American military and foreign policy, “Congress’ 

legislative authority would rest in part * * * upon the Constitution’s adoption of preconstitutional 

powers necessarily inherent in any Federal Government”). The Supreme Court has explained 

that the United States has a special obligation toward the Indians -- a native people who were 

overcome by force -- and that this obligation carries with it the authority to legislate with the 

welfare of Indians in mind. As the Court said in Board of County Commissioners of Creek 

County v. Seber, 318 U.S. 705 (1943): 

From almost the beginning the existence of federal power to regulate and protect the 

Indians and their property against interference even by a state has been recognized. This 

power is not expressly granted in so many words by the Constitution, except with respect 

to regulating commerce with the Indian tribes, but its existence cannot be doubted. In the 

exercise of the war and treaty powers, the United States overcame the Indians and took 

possession of their lands, sometimes by force, leaving them an uneducated, helpless and 

dependent people needing protection against the selfishness of others and their own 

improvidence. Of necessity the United States assumed the duty of furnishing that 

protection and with it the authority to do all that was required to perform that obligation * 

* *. 

Id. at 715 (citation omitted). 

39
In the case of Native Hawaiians, the maneuverings of the U.S. Minister and the 

expression of U.S. military force contributed to the overthrow of the Kingdom of Hawaii and the 

deposition of her Queen. The events of 1893 cannot be undone; but their import extends to this 

day, imbuing Congress with a special obligation and the inherent authority to restore some

semblance of the self-determination then stripped from Native Hawaiians. In the words of Justice 

Jackson, 

The generation of Indians who suffered the privations, indignities, and brutalities of the 

westward march of the whites have gone to the Happy Hunting Ground, and nothing that 

we can do can square the account with them. Whatever survives is a moral obligation 

resting on the descendants of the whites to do for the descendants of the Indians what in 

the conditions of this twentieth century is the decent thing. 

Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 355 (1945) (concurring 

opinion). 

IV. As an Exercise of Congress’ Indian Affairs Powers, the NHGRA Is Not an 

Impermissible Classification Violative of Equal Protection 

The principal objection to the NHGRA -- that it classifies U.S. citizens on the basis of 

race, in violation of the constitutional guarantee of equal protection, cf. Rice v. Cayetano, 

supra,

13 misses the mark. Because the NHGRA is an exercise of Congress’ Indian affairs 

powers, this legislation is “political rather than racial in nature.” Morton v. Mancari, 417 U.S. at 

553 n.24. As the Court explained, 

The decisions of this Court leave no doubt that federal legislation with respect to Indian 

tribes, although relating to Indians as such, is not based upon impermissible racial 

classifications. Quite the contrary, classifications expressly singling out Indian tribes as 

subjects of legislation are expressly provided for in the Constitution and supported by the 

ensuing history of the Federal Government’s relations with Indians. * * * Federal 

regulation of Indian tribes * * * is governance of once-sovereign political communities; 

it is not to be viewed as legislation of a “ ‘racial’ group consisting of Indians . . . .” 

Morton v. Mancari, supra, at 553 n.24. 

United States v. Antelope, 430 U.S. at 645-646 (footnote omitted); see also Washington v. 

Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 500-501 (1979) (“It is 

settled that ‘the unique legal status of Indian tribes under federal law’ permits the Federal 

Government to enact legislation singling out tribal Indians, legislation that might otherwise be 

constitutionally offensive.”) (quoting Morton v. Mancari, 417 U.S. at 551-552). 

 

13 Rice does not support this objection. There, the Court held that the Fifteenth Amendment to the Constitution -- 

which states that the right of U.S. citizens to vote shall not be denied or abridged by the United States or by any state 

on account of race or color -- did not allow the State of Hawaii to limit to Native Hawaiians eligibility to vote in

elections to elect trustees for the Office of Hawaiian Affairs, a state governmental agency. See Rice, 528 U.S. at 

523-524. Rice is inapposite because the reorganized Native Hawaiian governing entity will be neither a United 

States nor a Hawaiian governmental entity, but rather the governing entity of a sovereign native people. 

40
In Morton v. Mancari, the Supreme Court rejected the claim that an Act of Congress 

according an employment preference for qualified Indians in the Bureau of Indian Affairs 

violated the Due Process Clause and federal antidiscrimination provisions. In rejecting that 

claim, the Court explained that “[o]n numerous occasions this Court specifically has upheld 

legislation that singles out Indians for particular and special treatment,” 417 U.S. at 554 (citing 

cases involving, inter alia, the grant of tax immunity and tribal court jurisdiction), and the Court 

laid down the following rule with respect to Congress’ special treatment of Indians: “As long as 

the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation 

toward the Indians, such legislative judgments will not be disturbed.” Id. Clearly, the NHGRA 

can be “rationally tied” to Congress’ discharge of its duty with respect to the native people of 

Hawaii. 

In any event, Native Hawaiians have been denied some of the self-governance authority 

long established for other indigenous populations in the United States. As Governor Lingle 

testified to Congress, 

The United States is inhabited by three indigenous peoples -- American Indians, 

Native Alaskans and Native Hawaiians. * * * Congress has given two of these 

three populations full self-governance rights. * * * To withhold recognition of the 

Native Hawaiian people therefore amounts to discrimination since it would 

continue to treat the nation’s three groups of indigenous people differently. * * * 

[T]oday there is no one governmental entity able to speak for or represent Native 

Hawaiians. The [NHGRA] would finally allow the process to begin that would 

bring equal treatment to the Native Hawaiian people. 

Testimony of Linda Lingle, Governor of the State of Hawaii, Senate Indian Affairs 

Committee Hearing on S. 147, at 2 (March 1, 2005) (prepared text). See also Statement of Sen. 

Byron Dorgan, Vice Chairman, Senate Indian Affairs Committee Hearing on S. 147, at 1 (March 

1, 2005) (“[T]hrough this bill, the Native Hawaiian 

people simply seek a status under Federal law that is equal to that of America’s 

other Native peoples -- American Indians and Alaska Natives.”) (prepared text); Haunani 

Apoliona, Chairperson, Board of Trustees, Office of Hawaiian Affairs, Senate Indian Affairs 

Committee Hearing on S. 147, at 2 (March 1, 2005) (“In this legislation, as Hawaiians, we seek 

only what long ago was granted this nation’s other indigenous peoples.”) (prepared text). 

* * * 

The Supreme Court has confirmed that Congress has broad, plenary constitutional 

authority to recognize indigenous governments and to help restore and restructure indigenous 

governments overtly terminated or effectively decimated in earlier eras. See Lara, 541 U.S. at 

203 (affirming that the Constitution authorizes Congress “to enact legislation * * * recogniz[ing] 

* * * the existence of individual tribes” and “restor[ing] previously extinguished tribal status”). 

That authority extends to the Native Hawaiian people and permits Congress to adopt the 

NHGRA, which would recognize the Native Hawaiian governing entity and initiate a process for 

its restoration. 

41
Speaker Biographies 

Davelyn Noelani Kalipi 

Davelyn Noelani Kalipi was born and raised in Hilo, Hawaii. She graduated with a bachelor’s 

degree in Government & Politics/ Economics from George Mason University and a juris doctor 

from the National Law Center at George Washington University. Ms. Kalipi served in the 

United States Army Judge Advocate General’s Corps from 1996 to 1999. Ms. Kalipi is licensed 

to practice law in Hawaii and the District of Columbia. Ms. Kalipi served as Senator Akaka’s 

Counsel from 1999 to 2005 and advised him on legislative issues pertaining to Veterans’ Affairs, 

Judiciary, Homeland Security, Armed Services, U.S. Territories and Pacific Islands, and Native 

Hawaiians. Ms. Kalipi was appointed Democratic Staff Director on the Senate Committee on 

Veterans’ Affairs in February 2005. 

H. Christopher Bartolomucci

A partner with Hogan & Hartson, Mr. Bartolomucci focuses on appellate and Supreme Court 

litigation and other litigation involving complex legal issues and issues of constitutional law. 

Mr. Bartolomucci served in the administration of President George W. Bush as associate counsel 

to the president from January 20, 2001, to August 15, 2003. While serving in the White House, 

he assisted the president in matters ranging from the selection of federal judges to the 

consideration of pardon requests. He also has served as counsel to the inspector general of the 

District of Columbia; associate special counsel to the Senate Whitewater Committee; and a 

Bristow Fellow in the Office of the Solicitor General of the U.S. Department of Justice. Mr. 

Bartolomucci holds a bachelor’s degree, summa cum laude, from Dartmouth College, and 

graduated cum laude from Harvard Law School. In law school, Mr. Bartolomucci served as an 

editor of the Harvard Law Review. Following law school, he clerked for The Honorable William

L. Garwood of the U.S. Court of Appeals for the Fifth Circuit. 

H. William Burgess 

H. William Burgess is an attorney in Hawaii. After graduating from the University of Virginia 

Law School in 1953, he enrolled in the U.S. Marine Corps from 1953 to 1958 as a fighter pilot 

and legal officer. Mr. Burgess then joined the law firm of Carlsmith & Carlsmith and then A. 

William Barlow. In 1965, Mr. Burgess opened his own law office, where he focused full time on 

business and real property litigation. From 1969 to 1972, he was the volunteer president of the 

Legal Aid Society. And in 1979, Burgess was one of the founders and first president of the 

Neighborhood Justice Center of Honolulu, now called the Mediation Center of the Pacific. In 

1994, he retired from his practice and became a trustee for a Maui shopping center in Chapter 11 

reorganization. In July 2000, in Arakaki v. State of Hawaii, Mr. Burgess challenged the 

requirement that the trustees of the Office of Hawaiian Affairs be of Hawaiian ancestry. In 

March 2002, in Arakaki v. Lingle, Mr. Burgess challenged the constitutionality of the Office of 

Hawaiian Affairs and the Hawaiian Homes Commission Act. Mr. Burgess is the lead attorney 

for the Grassroot Institute of Hawaii, a non-profit organization which has gained prominence 

42
through its intense lobbying campaign against the Native Hawaiian Government Reorganization 

Act. 

Gail Heriot

Ms. Heriot is a Professor of Law at the University of San Diego School of Law. Ms. Heriot was 

formerly Associate Dean for Academic Affairs & Professor of Law at George Mason University 

School of Law and Counsel to the Senate Judiciary Committee. She had a litigation practice as 

an associate at Hogan & Hartson, in Washington D.C. and Mayer, Brown & Platt at Chicago, 

Illinois. After graduating cum laude from the University of Chicago Law School, she served as a 

law clerk for the Honorable Seymour F. Simon of the Supreme Court of Illinois. She has 

numerous academic publications, such as: Faculty Editor for A Symposium on Direct 

Democracy: An Introduction at the Journal of Contemporary Legal Issues; Standardized Tests 

under the Magnifying Glass: A Defense of the LSAT Against Recent Charges of Bias at the 

TEXAS REVIEW OF LAW & POLITICS; and, Strict Scrutiny, Public Opinion and Racial Preferences 

on Campus: Should the Courts Find a Narrowly Tailored Solution at the HARVARD JOURNAL OF 

LEGISLATION. 

43