39–006 

108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–742 

NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT 

OF 2004 

OCTOBER 6, 2004.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. POMBO, from the Committee on Resources, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 4282] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Resources, to whom was referred the bill 

(H.R. 4282) to express the policy of the United States regarding the 

United States relationship with Native Hawaiians and to provide 

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

same, report favorably thereon without amendment and recommend that the bill do pass. 

PURPOSE OF THE BILL

The purpose of H.R. 4282 is to express the policy of the United 

States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United 

States of the Native Hawaiian governing entity, and for other purposes. 

BACKGROUND AND NEED FOR LEGISLATION

On January 17, 1893, with the assistance of the United States 

Minister and U.S. Marines, the government of the Kingdom of Hawaii was overthrown. 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 

2 

calling for a reconciliation of the relationship between the United 

States and Native Hawaiians was enacted into law (Public Law 

103–150). What is often now called ‘‘The Apology Resolution’’ acknowledges that the overthrow of the Kingdom occurred with the 

active participation of agents and citizens of the United States and 

further acknowledges that the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either 

through their government or through a plebiscite or referendum. 

In December 1999, the Departments of the 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 Hawaii, culminating 

in two days of open hearings. The resulting draft report was issued 

on October 23, 2000, by the two departments and was called ‘‘From 

Mauka to Makai: The River of Justice Must Flow Freely.’’ The principal recommendation contained in the Clinton Administration’s report is set forth below: 

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

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

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

their control over their own affairs and institutions. As a 

matter of justice and equity, this report recommends that 

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

the United States has recognized the rights and promoted 

the welfare of Native Hawaiians as an indigenous people 

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

resources, and internal affairs, the Departments believe 

Congress should enact further legislation to clarify Native 

Hawaiians’ political status and to create a framework for 

recognizing a government-to-government relationship with 

a representative Native Hawaiian governing body. Within 

this report, the Departments recommended ‘‘that the Native Hawaiian people should have self-determination over 

their own affairs within the framework of Federal law, as 

do Native American tribes.’’ Further, they stated that 

‘‘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.’’

H.R. 4282 provides a process for the reorganization of a Native 

Hawaiian government for the purpose of carrying on the government-to-government relationship mentioned in the report above. In 

particular, the Secretary of the Interior must certify that the organic governing documents of the Native Hawaiian government are 

consistent with federal law and the trust relationship between the 

United States and tribes of the United States. This certification is 

3 

important as the Supreme Court issued a ruling in the case of Rice 

v. Cayetano wherein the quasi-sovereign state agency, the Office of 

Hawaiian Affairs, was to open the election of its trustees to all of 

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

vote in statewide elections. This, in essence, meant that the native 

people of Hawaii were divested of the mechanism that was established under the Hawaii State Constitution that had enabled them 

to give expression to their rights as native people to self-determination and self-governance. 

The current Office of Hawaiian Affairs in Hawaii has existed 

since 1978 and will remain relevant with the enactment of H.R. 

4282. This is because the Office administers programs and services 

with revenues derived from lands which were ceded back to the 

State of Hawaii upon its admission into the United States. The 

dedication of these revenues reflects the provisions of the 1959 Hawaii Admissions Act, which provides that the ceded lands and the 

revenues derived therefrom should be held by the State of Hawaii 

as a public trust for five purposes—one of which is the betterment 

of the conditions of Native Hawaiians. The Admissions Act also 

provided that the new State assumes a trust responsibility for approximately 203,500 acres of land that had previously been set 

aside under federal law in 1921 for Native Hawaiians in the Hawaiian Homes Commission Act. 

This legislation will continue to reflect the separate funding authorities that Native Hawaiians have enjoyed since 1910; since this 

date, Congress has enacted over 160 statutes designed to address 

the conditions of Native Hawaiians. Thus appropriations for Native 

Hawaiian programs have always been separately secured and have 

had no impact on program funding for American Indians or Alaska 

Natives. 

It is also important to note that some have questioned whether 

the reorganization of a Native Hawaiian government might have 

implications for gaming that is conducted under the authority of 

the Indian Gaming Regulatory Act (IGRA). The scope of gaming 

that can be conducted under IGRA is determined by the law of the 

State in which the Indian lands are located. The U.S. Supreme 

Court has held that State laws which criminally prohibit certain 

forms of gaming apply on Indian lands. Moreover, there are no Indian tribes in the State of Hawaii, nor are there any Indian reservations or Indian lands. Further, Hawaii is one of only two 

States in the Union (along with Utah) that criminally prohibit all 

forms of gaming. Accordingly, a reorganized Native Hawaiian government could not conduct any form of gaming in the State of Hawaii. 

H.R. 4282 is legislation similar to H.R. 617, introduced by Congressman Neil Abercrombie during the 107th Congress. Similar 

legislation was also introduced during previous Congresses. The 

Committee, along with the Senate Indian Affairs Committee, held 

five days of hearings on this issue during the second session of the 

106th Congress, and in the 107th Congress, H.R. 617 was reported 

to the House of Representatives by a voice vote. 

COMMITTEE ACTION

H.R. 4282 was introduced on May 5, 2004, by Congressman Neil 

Abercrombie (D–HI). The bill was referred to the Committee on ReVerDate Aug 04 2004 02:44 Oct 09, 2004 Jkt 039006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR742.XXX HR742
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sources. On September 15, 2004, the Full Resources Committee 

met to consider the bill. No amendments were offered and H.R. 

4282 was then ordered favorably reported to the House of Representatives by unanimous consent. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Cited as the ‘‘Native Hawaiian Government Reorganization Act 

of 2004.’’

Section 2. Findings 

This section sets forth Congress’ findings. Findings (1) through 

(4) reflect Congress’ recognition of Native Hawaiians as the native 

people of the United States and Hawaii. Findings (5) through (7) 

reflect Congress’ determination of the need to address the conditions of Native Hawaiians through the Hawaiian Homes Commission Act of 1920. Findings (8) and (9) reflect Congress’ establishment of the Ceded Lands Trust as a condition of statehood for the 

State of Hawaii. Finding (10) reflects the importance of the Hawaiian Home Lands and Ceded Lands to Native Hawaiians as a foundation for the Native Hawaiian community for the cultural survival 

of the Native Hawaiian people. Finding (11) notes that Native Hawaiians have maintained other distinctly native areas. Findings 

(12) through (14) reflect the effect of the Apology Resolution. Findings (15) through (19) reflect the Native Hawaiian community as 

a ‘‘distinctly’’ native community. Finding (20) reflects the position 

of the United States before the U.S. Supreme Court in the case of 

Rice v. Cayetano. Findings (21) and (22) reaffirm the special trust 

relationship between the Native Hawaiian people and the United 

States. 

Section 3. Definitions 

This section sets forth definitions of terms used in the bill. Defined terms are: Aboriginal, Indigenous, Native People; Apology 

Resolution; Ceded Lands; Indigenous, Native People; Interagency 

Coordinating Group; Native Hawaiian; Native Hawaiian Governing 

Entity; and Secretary. 

Section 4. United States policy and purpose 

This section reaffirms that Native Hawaiians are an aboriginal, 

indigenous, native people with whom the United States has a trust 

relationship and states Congress’ intent to provide a process for 

federal recognition of a Native Hawaiian governing entity for purposes of continuing a government-to-government relationship. 

Section 5. United States Office for Native Hawaiian Relations 

This provision authorizes the establishment of the United States 

Office for Native Hawaiian Relations within the Office of the Secretary of the Department of the Interior. The United States Office 

for Native Hawaiian Relations is charged with: (1) effectuating and 

coordinating the special trust relationship between the Native Hawaiian people and the United States; (2) continuing the process of 

reconciliation; (3) conducting meaningful, regular, and appropriate 

consultation with the Native Hawaiian people and Native HawaiVerDate Aug 04 2004 02:44 Oct 09, 2004 Jkt 039006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR742.XXX HR742
5 

ian governing entity regarding any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or 

lands; (4) consulting with the Native Hawaiian Coordinating 

Group, other federal agencies, and with the State of Hawaii on 

policies, practices, and proposed actions affecting Native Hawaiian 

resources, rights, or lands; and (5) preparing and submitting to the 

Senate Committee on Indian Affairs, Senate Committee on Energy 

and Natural Resources, and House Resources Committee an annual 

report detailing the Interagency Coordinating Group’s activities regarding the reconciliation process, consultation with the Native Hawaiian people, and recommendations of necessary changes to existing federal statutes. 

The United States Office for Native Hawaiian Relations would 

serve as a liaison between the Native Hawaiian people and the 

United States for the purposes of assisting with the process of federal recognition of the Native Hawaiian governing entity, continuing the reconciliation process, and ensuring proper consultation 

with the Native Hawaiian people for any federal policy impacting 

Native Hawaiians. The United States Office for Native Hawaiian 

Relations would not assume the responsibility or authority for any 

of the federal programs established to address the conditions of Native Hawaiians. All federal programs established and administered 

by federal agencies will remain with those agencies. 

Section 6. Native Hawaiian Interagency Coordinating Group 

This section recognizes that because federal programs authorized 

to address the conditions of Native Hawaiians are largely administered by federal agencies other than the Department of the Interior 

there is a need to establish an Interagency Coordinating Group to 

be composed of officials from each federal agency that administers 

Native Hawaiian programs, establishes or implements policies that 

affect Native Hawaiians, or whose actions may significantly or 

uniquely impact on Native Hawaiian resources, rights, or lands. 

The primary responsibility of the Interagency Coordinating Group 

is to coordinate federal policies or actions that affect Native Hawaiians or impact Native Hawaiian resources, rights, or lands. The 

Interagency Coordinating Group is also charged with assuring that 

each federal agency develop a Native Hawaiian consultation policy 

and participate in the development of the report to Congress. 

Section 7. Process for the recognition of the Native Hawaiian governing entity 

This section recognizes the right of the Native Hawaiian people 

to organize for their common welfare and to adopt appropriate organic governing documents. This section provides the process for 

federal recognition of the Native Hawaiian governing entity. 

Upon the organization of the Native Hawaiian governing entity, 

the adoption of organic governing documents, and the election of officers of the Native Hawaiian governing entity, the duly elected officers of the Native Hawaiian governing entity submit the organic 

governing documents to the Secretary of the Interior for certification. Within 90 days of the submission of the organic governing 

documents, the Secretary shall certify that the organic governing 

documents: establish the criteria for citizenship in the Native Hawaiian governing entity; were adopted by a majority vote of the 

6 

citizens of the Native Hawaiian governing entity; provide for the 

exercise of governmental authorities by the Native Hawaiian governing entity; provide for the Native Hawaiian governing entity to 

negotiate with federal, State, and local governments, and other entities; prevent the sale, disposition, lease, or encumbrance of lands, 

interests in lands, or other assets of the Native Hawaiian governing entity without the consent of the Native Hawaiian governing entity; provide for the protection of the civil rights of the 

citizens of the Native Hawaiian governing entity and those subject 

to the authority of the Native Hawaiian governing entity; and are 

consistent with applicable federal law and the special trust relationship between the United States and Native Hawaiians. 

It is also important to note that one of the changes in H.R. 4282 

from previous versions of this legislation centers on the creation of 

a Native Hawaiian Commission that will prepare, maintain, and 

certify a roll of Native Hawaiian community members. Those included on this roll will participate in the reorganization of the Native Hawaiian governing entity and will be included in the Native 

Hawaiian definition in Section 3 (8). Previously this role was to be 

certified by the Secretary of the Interior. 

Within 90 days of the submission of the organic governing documents, the Secretary shall also certify that the State of Hawaii 

supports the recognition of the Native Hawaiian governing entity 

by the United States as evidenced by a resolution or act of the Hawaii State Legislature. 

If the Secretary, after receipt of the organic governing documents, determines that the documents are deficient in addressing 

the matters stipulated under Section 6(b)(2)(A)(i) through (vii), or 

determines that any provision of the organic governing documents 

does not comply with any other applicable federal law, the Secretary shall return the organic governing documents to the Native 

Hawaiian governing entity. The Secretary shall identify to the Native Hawaiian governing entity each provision that is determined 

to be deficient or in noncompliance and provide a justification for 

each finding. The Native Hawaiian governing entity is authorized 

to amend the organic governing documents to ensure their compliance with this Act and may resubmit the organic governing documents to the Secretary for certification. 

The certifications shall be deemed to have been made if the Secretary has not acted within 90 days of the date that the duly elected officers of the Native Hawaiian governing entity have submitted 

the organic governing documents of the Native Hawaiian governing 

entity to the Secretary. 

Upon election of the Native Hawaiian governing entity’s officers 

and the certifications (or deemed certifications) by the Secretary, 

federal recognition is extended to the Native Hawaiian governing 

entity. 

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

This section reaffirms the United States’ delegation of authority 

to the State of Hawaii in the Admissions Act to address the conditions of the indigenous, native people of Hawaii. Upon federal recognition of the Native Hawaiian governing entity, the United 

States is authorized to negotiate with the State of Hawaii and the 

7 

Native Hawaiian governing entity regarding the transfer to the Native Hawaiian governing entity of lands, resources and assets dedicated to Native Hawaiians. 

This section provides that nothing in this Act is intended to serve 

as a settlement of any claims against the United States. 

Section 9. Applicability of certain federal laws 

This section states that nothing in this Act shall be construed as 

an authorization for the Native Hawaiian governing entity to conduct gaming activities under the authority of the Indian Gaming 

Regulatory Act or for eligibility to participate in any programs and 

services provided by the Bureau of Indian Affairs. 

Section 10. Severability 

This section provides that should any section or provision of this 

Act be deemed invalid, the remaining sections, provisions, and 

amendments shall continue in full force and effect. 

Section 11. Authorization of appropriations 

This section authorizes the appropriation of such sums as may 

be necessary to carry out the activities authorized. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in 

the body of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States 

grants Congress the authority to enact this bill. 

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to express the policy of the United States regarding 

the United States relationship with Native Hawaiians, to provide 

a process for the reorganization of a Native Hawaiian government 

and the recognition by the United States of the Native Hawaiian 

government, and for other purposes. 

8 

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 4282—Native Hawaiian Government Reorganization Act of 

2004 

H.R. 4282 would establish a process for a Native Hawaiian government to be constituted and recognized by the federal government. CBO estimates that implementing H.R. 4282 would cost 

nearly $1 million annually in fiscal years 2005–2007 and less than 

$500,000 in each subsequent year, assuming the availability of appropriated funds. Enacting the bill would not affect direct spending 

or revenues. 

H.R. 4282 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. Enacting this 

legislation could lead to the creation of a new government to represent Native Hawaiians. The transfer of any land or other assets 

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

of Hawaii, would be the subject of future negotiations. 

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

consult and coordinate the relationship with the Native Hawaiian 

governing entity. Based on information from DOI, CBO expects this 

office would require up to three full-time personnel. H.R. 4282 also 

would establish the Native Hawaiian Interagency Coordinating 

Group, consisting of officials from interested agencies. Finally, the 

bill would create a nine-member commission responsible for creating and certifying a roll of adult Native Hawaiians. Based upon 

information from DOI, CBO expects that this commission would 

need three years and three full-time staff to complete its work. 

On May 30, 2003, CBO transmitted a cost estimate for S. 344, 

the Native Hawaiian Recognition Act of 2003, as ordered reported 

by the Senate Committee on Indian Affairs, on May 14, 2003. On 

May 3, 2004, CBO transmitted a cost estimate for S. 344 as ordered reported by the Senate Committee on Indian Affairs on April 

21, 2004. Both versions of S. 344 are similar to H.R. 4282; however, 

CBO estimates that implementing H.R. 4282 would have a higher 

cost because it would authorize the commission that would be 

tasked to create and certify a roll of Native Hawaiians to hire fulltime staff and to procure temporary services. 

The CBO staff contacts for this estimate are Mike Waters (for 

federal costs) and Marjorie Miller (for the impact on state, local, 

and tribal governments). This estimate was approved by Peter H. 

Fontaine, Deputy Assistant Director for Budget Analysis. 

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

9 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law. 

(10) 

1 30 Stat. 750 (August 12, 1898). 

2 31 Stat. 141 (April 30, 1900). 

3 Hawaii Admission Act, Pub. L. 86–3, 73 Stat. 4 (March 18, 1959). 

ADDITIONAL VIEWS 

The purpose of H.R. 4282 is to authorize a process for the reorganization of the Native Hawaiian government and for the reaffirmation by the United States of the special political and legal relationship between the United States and the Native Hawaiian governing entity for purposes of carrying on a government-to-government relationship with the Native Hawaiian government. This relationship is legally analogous to the special relationship that exists between the United States and Indian tribal governments 

under the Indian Commerce Clause of the United States Constitution and other authorities. 

However, H.R. 4282 reflects a new paradigm in which the Native 

Hawaiian government, the State of Hawai‘i, and the United States 

will have the flexibility to develop—through a process of negotiations—a structured framework for the governmental powers and 

authorities, including civil and criminal jurisdiction, that will be 

exercised by each government. Thereafter, it is anticipated that the 

governmental parties will seek legislation to implement their 

agreements, including amendments to existing State and Federal 

laws, as well as necessary amendments to the State’s constitution. 

To this end, the legislation does not import wholesale the existing 

body of Federal Indian Law, but instead contemplates that the governmental parties to these negotiations will shape their relationships, and their rights and responsibilities, in a manner that is appropriate to contemporary circumstances in the State of Hawai‘i 

while remaining within the broad framework of a government-togovernment relationship with the United States. 

Historical background 

On January 17, 1863, 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. Supporters of this 

revolutionary movement organized a government calling itself the 

Republic of Hawaii, which was later recognized by the United 

States as the government of the Hawaiian Islands. Notwithstanding strong opposition from within the Native Hawaiian community, officials of the Republic of Hawai‘i successfully sought to 

have the Hawaiian Islands annexed by the United States. In August 1898, Congress adopted the Joint Resolution for Annexing the 

Hawaiian Islands to the United States.1 Soon thereafter, Congress 

passed the Hawai‘i Organic Act,2 establishing a government for the 

newly created Territory of Hawai‘i. In 1959, Hawai‘i was admitted 

to the Union as the Fiftieth State.3

11 

4Pub. L. 103–150, 107 Stat. 1510 (November 23, 1993) (the ‘‘Apology Resolution’’). 5 42 Stat. 108 (July 9, 1921). 

6 H.R. Rep. No. 66–839, at 4 (1920). 7 59 Cong. Rec. 7453 (1920). 

8 H.R. Rep. No. 66–839, at 5. 

One hundred years after the U.S.-supported overthrow of the 

Kingdom of Hawai‘i, 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.4 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 to the United States, their claims to their inherent 

sovereignty as a people over their national lands, either through 

their government or through a plebiscite or referendum. 

Federal legislation on behalf of Native Hawaiians 

Since 1910, Congress has enacted into law more than 160 statutes which, in whole or in part, establish programs and services intended to address the special circumstances of Native Hawaiians. 

Congress first explicitly recognized the existence of a special or 

trust relationship between the Native Hawaiian people and the 

United States with the enactment in 1921 of the Hawaiian Homes 

Commission Act.5

Proponents of the Hawaiian Homes Commission Act noted the 

decreasing numbers and poor economic status of Native Hawaiians. 

Prior to European contact, it was estimated that there were 

400,000 Native Hawaiians in the Hawaiian Islands. By 1919, the 

Native Hawaiian population had been reduced to 22,600, and many 

were concluding that the native people of Hawai‘i were a ‘‘dying 

race,’’ and that if they were to be saved from extinction, they must 

have the means of regaining their connection to the land, the ‘aina. 

In hearings on the Hawaiian Homes Commission Act, Secretary of 

the Interior Franklin Lane explained the trust relationship on 

which the statute was premised: ‘‘One thing that impressed me 

* * * was the fact that the natives of the islands who are our 

wards, I should say, and for whom in a sense we are trustees, are 

falling off rapidly in numbers and many of them are in poverty.’’ 6

Prince Jonah Kuhio Kalanianaole, the Territory’s sole delegate to 

Congress, testified before the full U.S. House of Representatives: 

‘‘The Hawaiian race is passing. And if conditions continue to exist 

as they do today, this splendid race of people, my people, will pass 

from the face of the earth.’’ 7 Secretary Lane attributed the declining population to health problems like those faced by the ‘‘Indian 

in the United States’’ and concluded the Nation must provide similar remedies.8

The Hawaiian Homes Commission Act set aside approximately 

203,500 acres of public lands (former Crown and Government lands 

ceded by the Republic of Hawai‘i to the United States upon Annexation) for homesteading by Native Hawaiians. The Act provides 

that the lessee must be a Native Hawaiian, who is entitled to a 

lease for a term of ninety-nine years, provided that the lessee occuVerDate Aug 04 2004 02:44 Oct 09, 2004 Jkt 039006 PO 00000 Frm 00011 Fmt 6604 Sfmt 6602 E:\HR\OC\HR742.XXX HR742
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9 H.R. Rep. No. 66–839, at 11 (1920). 10 Hearings before the Committee on the Territories, House of Representatives, 66th Cong., 

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

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

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

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

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

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

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

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

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

that ‘‘we have no government or tribe to deal with here’’). 11 Hawai‘i Admission Act, § 5(f). 12 Id. 

pies and uses or cultivates the tract within one year after the lease 

is entered into. A restriction on alienation, like those imposed on 

Indian lands subject to allotment, was included in the lease. Also 

like the general allotment acts affecting Indians, the leases were 

intended to encourage rural homesteading so that Native Hawaiians would leave the urban areas and return to rural subsistence 

or commercial farming and ranching. In February, 1923, the Congress amended the Act to authorize one-half acre residence lots and 

to provide for home construction loans. Thereafter, the demand for 

residential lots far exceeded the demand for agricultural or pastoral lots. 

In enacting the Hawaiian Homes Commission Act, Congress compared the legislation to ‘‘previous enactments granting Indians 

* * * special privileges in obtaining and using the public lands.’’ 9

In testimony before Congress, Interior Secretary land explicitly 

analogized the relationship between the United States and Native 

Hawaiians to the trust relationship between the United States and 

other Native Americans, explaining that special programs for Native Hawaiians are fully supported by history and ‘‘an extension of 

the same idea’’ that supports such programs for Indians.10

Congress again recognized the special status of Native 

Hawai‘ians when Hawai‘i gained Statehood in 1959. As a condition 

of admission into the Union, section 4 of the Hawai‘i Admission Act 

required the new State to assume management of the homesteading program established under the Hawaiian Homes Commission Act and to adopt that Federal law, as amended, as a provision 

of its Constitution. The Admission Act imposed a public trust on 

the lands which were ceded to the United States by the Republic 

of Hawai‘i upon annexation by the United States in 1898 and 

which were conveyed to the State of Hawai‘i in trust upon its admission into the Union of States, requiring the State to manage 

these lands and any revenues derived from them, for five specified 

purposes, one of which was ‘‘the betterment of the conditions of native Hawai‘ians, as defined in the Hawai‘ian Homes Commission 

Act, 1920, as amended.’’ 11 The Admission Act further provided that 

the use of these lands and revenues for any use other than the five 

specified uses ‘‘shall constitute breach of trust for which suit may 

be brought by the United States.’’ 12

The Hawai‘i Admission Act provided for explicit delegations of 

Federal authority to be assumed by the new State and mandated 

that the State act as a trustee for Native Hawai‘ians. The United 

States did not absolve itself from all further responsibility in the 

administration or amendment of the Hawai‘ian Homes Commission 

13 

13See e.g., Han v. United States, 45 F.3d 333 (9th Cir. 1995). 14See, e.g., Keaukaha-Panaewa Community Ass’n v. Hawai‘ian Homes Comm’n, 739 F2d 1467 

(9th Cir. 1984) (Section 5(f) of the Hawai‘i Admission Act, setting aside lands held in trust under 

the Hawai‘ian Homes Commission Act, creates a Federal right in the Native Hawai‘ian beneficiaries enforceable prospectively against the State of Hawai‘i under 42 U.S.C. § 1983); Napeahi 

v, Paty, 921 F.2d 897 (9th Cir. 1990), cert denied, 502 U.S. 901 (1991) (same, concerning lands 

which were assets of the land trust created under Section 5(f) of the Hawai‘i Admission Act but 

which were not Hawai‘ian Home Lands). 15Pub. L. No. 93–644, § 801, 88 Stat. 2291, 2324 (January 4, 1975). 16Pub. L. No. 106–569, 114 Stat. 2944 (December 27, 2000). 17Pub. L. No. 101–185, 103 Stat. 1336 (November 28, 1989). 18Pub. L. No. 101–477, §§ 101–104, 104 Stat. 1152, 1154 (October 30, 1990). 19Pub. L. No. 101–601, 104 Stat. 3048 (November 16, 1990). 20Pub. L. No. 102–575, §§ 4002, 4006, 106 Stat. 4600, 4753 (October 30, 1992). 21Pub. L. No. 96–565, §§ 301–307, 94 Stat. 3321, 3224–27 (December 22, 1980). 22Pub. L. No. 100–579, 102 Stat. 2916 (October 31, 1988). 23Pub. L. 103–382, sec. 101, § 9201–9212, 108 Stat. 3518, 3794 (October 20, 1994). 

Act, nor did it divest itself of an ongoing role in overseeing the use 

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

and 5 of the Hawai‘i Admission Act clearly contemplate a continuing Federal role, as do sections 204 and 223 of the Hawai‘ian 

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

trust lands and reserved to Congress the right to amend that Act. 

The Federal and State courts have repeatedly concluded that the 

United States retains the authority to bring an enforcement action 

against the State of Hawai‘i for breach of the trust responsibilities 

set forth in section 5 of the Admission Act,13 and these responsibilities are enforceable by the Native Hawai‘ian beneficiaries themselves.14

Over the last 30 years, Congress has included Native Hawaiians 

in numerous Federal statutes designed to address the conditions of 

Native Americans, including for example, the Native American Programs Act of 1974,15 the Native American Housing Assistance and 

Self-Determination Act,16 the National Museum of the American 

Indian Act,17 the Native American Languages Act,18 the Native 

American Graves Protection and Repatriation Act,19 and the National Historic Preservation Act Amendments of 1992,20 and has 

enacted other statutes dealing with the specific circumstances of 

Native Hawaiians such as the Native Hawaiian Study Commission 

Act,21 the Native Hawaiian Health Care Improvement Act of 

1988,22 and the Native Hawaiian Education Act.23

Acting in furtherance of the Hawai‘i Admission Act’s partial delegation of Federal responsibility for Native Hawaiians, in 1978, the 

citizens of the State of Hawai‘i recognized the long-standing efforts 

of the native people to give expression to their rights to self-determination and self-governance by amending the State constitution 

to provide for the establishment of a quasi-independent State agency, the Office of Hawaiian Affairs. The Hawai‘i Constitution provides that the Office is to be governed by nine trustees who are Native Hawaiian and who are to be elected by Native Hawaiians. The 

Office administers programs and services with revenues derives 

from lands ceded to the United States by the Republic of Hawai‘i 

in 1898 and which were conveyed to the State of Hawai‘i in trust 

upon its admission into the Union of States pursuant to section 5 

of the Hawaii Admission Act. The dedication of these revenues reflects the provision of section 5 of the Admission Act, which provides that the ceded lands and the revenues derived therefrom 

14 

24 427 U.S. 535 (1974). 

should be held by the State of Hawai‘i as a public trust for five purposes—one of which is the betterment of the conditions of Native 

Hawaiians. 

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

a ruling in the case of Rice v. Cayetano, 528 U.S. 495 (2000). The 

Supreme Court held that because the Office of Hawaiian Affairs is 

an agency of the State of Hawai‘i, funded in part by appropriations 

made by the State legislature, the Fifteenth Amendment to the 

United States Constitution requires that the election for the trustees of the Office of Hawaiian Affairs must be open to all citizens 

of the State of Hawai‘i who are otherwise eligible to vote in statewide elections. Accordingly, all citizens of the State of Hawai‘i may 

vote for the candidates for the nine trustee positions and, as decided in subsequent litigation, may themselves be candidates for 

these offices. 

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

mechanism that was established under theHawai‘i State Constitution that, since 1978, has served as one means of giving expression 

to their rights as indigenous, native people of the United States to 

self-determination and self-governance. H.R. 4282 is designed to 

address these developments by providing a means under Federal 

law, consistent with the Federal policy of self-determination and 

self-governance for America’s indigenous, native people, for Native 

Hawaiians to have a status similar to that of the other indigenous, 

native people of the United States. 

The United States’ special relationship with Native Americans 

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

has exercised a constitutional authority over indigenous affairs and 

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

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

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

and exercised dominion and control over the lands over which the 

United States subsequently acquired jurisdiction. 

The United States has long recognized the existence of a special 

political relationship with the indigenous people of the United 

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

and Native Hawaiians—American Indians, Alaska Natives, and 

Native Hawaiians—the United States has recognized that they are 

entitled to special rights and considerations, and the Congress has 

enacted laws to give expression to the respective legal rights and 

responsibilities of the Federal government and the native people. 

As the United States Supreme Court recognized in Morton v. 

Mancari,24 recognition of a group of Native Americans as one with 

which the United States recognizes a special relationship is a disVerDate Aug 04 2004 02:44 Oct 09, 2004 Jkt 039006 PO 00000 Frm 00014 Fmt 6604 Sfmt 6602 E:\HR\OC\HR742.XXX HR742
15 

25 Id., 427 U.S. at 553 n.24. 26 Id., at 554. 27 Although ‘‘[t]he treaty power does not literally authorize Congress to act legislatively [with 

regard to Native Americans].’’ United States. v. Lara, 124 S.Ct. 1628, 1633 (2004), the U.S. Supreme Court ‘‘has explicitly stated that the statute [ending the practice of entering into treaties 

with the Indian tribes] ‘in no way affected Congress’ plenary powers to legislate on problems 

of Indians:’’ Id., 124 S.Ct. At 1634 (quoting Antoine v. Washington, 420 U.S. 194, 203 (1975)). 28Lara, 124 S.Ct. at 1634 (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 

315–22 (1936), and L. Henkin, Foreign Affairs and the U.S. Constitution 14–22, 63–72 (2d ed. 

1996). 29 ‘‘The power of the general government over these remnants of a race once powerful, now 

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

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

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

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

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

arises a duty of protection, and with it the power. This has always been recognized by the executive, and by congress, and by this court, whenever the question has arisen.’’ United States v. 

Kagama, 118 U.S. 375 (1886). 30Morton v. Mancari, 427 U.S. 535 (1974). 31Lara, 124 S.Ct. at 1633 (citing, e.g., Washington v. Confederated Bands and Tribes of 

Yakima Nation, 439 U.S. 463, 470–71 (1979), and Negonsett v. Samuels, 507 U.S. 99, 103 

(1993)). 32Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); United States v. Sioux Nation, 448 U.S. 371 (1980). The rulings of the Supreme Court make clear that neither the conferring of citizenship upon the native people, the allotment of their lands, the lifting of restrictions 

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

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

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

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

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

(1916); Chippewa Indians v. United States, 307 U.S. 1 (1939); Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); United States v. John, 437 U.S. 634 (1979). 33Lara, 124 S.Ct. at 1635 (noting the ‘‘annexation of Hawaii by joint resolution of Congress 

and the maintenance of a ‘‘Republic of Hawaii’’ until formal incorporation by Congress, as described in Hawaii v. Mankichi, 190 U.S. 197, 209–210 (1903), the establishment of the Northern 

Mariana Islands as ‘‘a self-governing commonwealth * * * in political union with and under the 

sovereignty of the United States’’ pursuant to note following 48 U.S.C. § 1801 [see also Pub. L. 

94–241, 90 Stat. 263 (Mar. 24, 1976)], the recognition of the Philippine Islands as an independent nation pursuant to 22 U.S.C. § 1394, and the authorization granted the people of Puerto 

Rico to ‘‘organize a government pursuant to a constitution of their own adoption’’ pursuant to 

the Act of July 3, 1950, 64 Stat. 319). 

tinction that is ‘‘political rather than racial in nature, 25 and legislation providing a preference for members of such groups does not 

violate the Equal Protection Clause of the Fourteenth Amendment 

to the United States Constitution where ‘‘the special treatment can 

be tied rationally to the fulfillment of Congress’ unique obligations 

toward the Indians[.] 26

As the United States Supreme Court has recently noted, the 

power of Congress to address the conditions of the native people of 

the United States stems not only from the Indian Commerce 

Clause, U.S. Const., Art. I, § 3, cl. 8, 27 but rests also ‘‘upon the 

Constitution’s adoption of pre-constitutional powers necessarily inherent in any Federal Government, namely powers that [the U.S. 

Supreme] Court has described as ‘necessary concomitants of nationality.’ ’’ 28

The United States Supreme Court has so often addressed the 

scope of Congress’ constitutional authority to address the conditions of native people that it is now well-established.29 The Court 

has characterized the authority of Congress as ‘‘plenary’’ 30 or as 

‘‘plenary and exclusive,’’ 31 and has frequently stated its views regarding the broad scope of Congressional authority regard to native 

people 32 and other ‘‘dependent sovereign[s] that [are] not * * * 

state[s].’’ 33 Nor is this power limited to the native people living 

16 

34 United States v. Sandoval, 231 U.S. 28 (1913). 35Lara, 124 S.Ct. at 1635. 36 Id. 37 24 Stat. 388 (February 8, 1887). 38 34 Stat. 197 (May 17, 1906). 39Pub. L. 96–487, 94 Stat. 2371 (Dec. 2, 1980). 40Pub. L. 92–203, 85 Stat. 688 (December 18, 1971). 

within the territory of the original thirteen states—it also extends 

to those living in lands that have been subsequently acquired.34

With regard to the power of Congress to make ‘‘major changes in 

the metes and bounds of tribal sovereignty,’’ 35 the particular power 

Congress seeks to exercise here in the case of Native Hawaiians, 

the Court has stated: 

One can readily find examples in congressional decisions 

to recognize, or to terminate, the existence of individual 

tribes. See United States v. Holliday, 3 Wall. 407, 419 

(1866) (‘‘If by [the political branches] those Indians are recognized as a tribe, this court must do the same’’); Menominee Tribe v. United States, 391 U.S. 404 (1968) (examining 

the rights of Menominee Indians following the termination 

of their Tribe). Indeed, Congress has restored previously 

extinguished tribal status—by a re-recognizing a Tribe 

whose tribal existence it previously had terminated. 25 

U.S.C. §§ 903–903f (restoring the Menominee Tribe); cf. 

United States v. Long, 324 F.3d 475 (CA7) (upholding 

against double jeopardy challenge successive prosecutions 

by the restored Menominee Tribe and the Federal Government), cert. denied, 540 U.S. ll, 124 S.Ct. 151 (2003).36

While the Indian Commerce Clause of the U.S. Constitution provides authority for the Congress to conduct relations with the Indian tribes, over time the exercise of that authority has evolved to 

include the enactment of laws which address the conditions of individual Indians, individual indigenous native people, and groups of 

native people who are not organized as tribes. For instance, the 

federal policy of forced removal of Indians from their ancestral 

lands to areas west of the Mississippi was carried out without regard to tribal organization, and later, the General Allotment Act 37

and other laws were enacted to provide for the termination of Indian reservation status and the allotment of lands to individual Indians. 

The Alaska Native Allotment Act of 1906 38 provided for similar 

allotment of native lands to individual Alaska Natives, without regard to tribal organization. 

In the states of California, Montana, and Washington, to name 

but a few, individual Indians were removed to designed reservations and were forced to live with other Indians who were not 

members of the same tribe. In the 1960s, the Federal policy of relocating Indians to urban areas was also carried out without regard 

to tribal organization. The Alaska National Interest Lands Conservation Act 39 authorized a preference for subsistence hunting 

and fishing by Alaska Natives, notwithstanding the fact that not 

all Alaska Natives were organized as tribes, and the Alaska Native 

Claims Settlement Act 40 (ANCSA) authorized the establishment of 

native regional and village corporations in which Alaska Natives 

17 

41Pub. L. 103–454, 108 Stat. 4791 (November 2, 1994). 42 48 Stat. 984 (June 18, 1934). 43Menominee, Restoration Act, Pub. L. 93–197; Auburn Indian Restoration, Pub. L. 104–109; 

Siletz Indian Tribe Restoration Act, Pub. L. 96–340; Yslete del Sur Pueblo and Alabama and 

Coushatta Indian Tribes of Texas Restoration Act, Pub. L. 103–437; Paskenta Band Restoration 

Act, Pub. L. 103–454; Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 

1993, Pub. L. 103–116; Ponca Restoration Act, Pub. L. 101–484; Coquille Restoration Act, Pub. 

L. 101–42; Klamath Indian Tribe Restoration Act, Pub. L. 99–398; Confederated Tribes of the 

Grand Ronde Community of Oregon Restoration Act, Pub. L. 98–165; Paiute Indian Tribe of 

Utah Restoration Act, Pub. L. No. 96–227. 44Pokagon Band of Potawatomi Indians Restoration Act, Pub. L. 103–323. 

would be the principal shareholders and the corporations would 

hold title to the surface and subsurface estates of lands selected by 

Alaska Native corporations under that Act, without regard to 

whether the native shareholders were members of an Indian tribe. 

ANCSA singled out the indigenous, native people for a unique status and the rights and privileges which flowed from that status, as 

distinct from other citizens of Alaska. 

A more recent manifestation of Congress’ broad constitutional 

authority to address the conditions of the indigenous, native people 

of the United States is the Federally Recognized Indian Tribes List 

Act of 1994 41—which designated as ‘‘tribes’’ for purposes of carrying on relations with the United States a number of groups of native people who were not previously organized as tribes, and in 

some cases who are still not organized as tribes. 

Furthermore, it is clear that the Congress has exercised its constitutional authority to terminate the federal government’s recognition of tribal status, to restore federal recognition of tribal status, 

and indeed to authorize the indigenous, native people to come together to reorganize their governments. The Indian Reorganization 

Act of 1934 42 was one of the federal statutes that provided this native governmental reorganization authority, and that Act did not 

impose any time-related conditions requiring, for instance, that a 

native government could only reorganize if its Federally recognized 

status had been terminated within a certain number of years, nor 

did that Act require that the indigenous, native people seeking to 

reorganize a native government had to have been formerly recognized by the Federal government as an Indian tribe. 

With regard to the period of time between termination and restoration of the Federally recognized status of tribal groups, while 

the average amount of time between termination and restoration 

ranges from 19 to 36 years,43 the efforts to secure restoration of 

Federally recognized status took much longer in other instances— such as the 55 years between termination and restoration experienced by the Pokagon Band of Potawatomi Indians of Michigan.44

Federal law has never provided that upon the passage of a designated period of time, a native government is precluded from reorganizing. Thus the indigenous, native people of Hawai’i are not 

precluded from reorganizing a government based on the passage of 

time. 

H.R. 4282 and the federal recognition of Native Hawaiians 

With the enactment of the Hawaiian Homes Commission Act in 

1921 and subsequent legislation, Congress has exercised its broad 

powers under the Indian Commerce Clause to recognize Native Hawaiians as among the indigenous people of the United States with 

18 

whom it maintains a special legal and political relationship. It is 

significant that the United States recognized this relationship 

within less than 25 years of the annexation of Hawai‘i to the 

United States, a period much shorter than, for example, the 55- 

year break in Federally-recognized status experienced by the 

Pokagon Band. The restoration of the United States’ recognition of 

a Native Hawaiian governing entity contemplated in this Act is 

well within the constitutional powers of the Congress, just as is the 

restoration of Federal recognition of the Menominee Tribe, and the 

fact that recognition of Native Hawaiians has taken a form different from that bywhich Indian tribes within the 48 contiguous 

states have been recognized is without constitutional significance. 

H.R. 4282 provides a process of negotiations in which the Native 

Hawaiian governing entity, the State of Hawai‘i, and the United 

States can reach consensus on matters of civil and criminal jurisdiction, land use regulatory authority, the transfer or exchange of 

lands and natural resources, and the full range of issues that each 

of these governments may wish to consider in shaping their future 

relationships as governments, including any outstanding land 

claims. The bill provides that once consensus is reached, the three 

governments will bring their agreements to the Congress and to 

the Legislature of the State of Hawai‘i so that implementing legislation can be enacted, and existing laws can be appropriately 

amended. 

In a manner analogous to the Alaska Native Claims Settlement 

Act, H.R. 4282 establishes a new and different paradigm which, 

like other Native settlements acts, authorizes the three governments to have implementing legislation enacted and thereby to add 

to the body of Federal laws that are designed to address the conditions of America’s indigenous, native people rather than importing 

into their relationships—without adaptation to address the unique 

circumstances of Hawai‘i—the body of existing Federal Indian laws. 

Conclusion 

The primary injury that H.R. 4282 is intended to address is the 

loss of a sovereign governing entity resulting from the 1893 overthrow of the government of the Kingdom of Hawai‘i, an event made 

possible by the actions of officials and citizens fo the United States. 

Although Congress has consistently recognized Native Hawaiians 

as among the native people of the United States on whose behalf 

it may exercise its powers under the Indian Commerce Clause, it 

has not as yet acted to provide a process for the reorganization of 

a Native Hawaiian sovereign governing entity. H.R. 4282 provides 

authority for that process. 

NEIL ABERCROMBIE. 

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