29–010 

Calendar No. 568 

112TH CONGRESS REPORT " ! SENATE 2d Session 112–251 

TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE 

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

STATES OF THE NATIVE HAWAIIAN GOVERNING ENTITY 

DECEMBER 17, 2012.—Ordered to be printed 

Mr. AKAKA, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 675] 

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

(S. 675) to express the policy of the United States regarding the 

United States relationship with Native Hawaiians and to provide 

a process for the recognition by the United States of the Native Hawaiian governing entity, having considered the same, reports favorably thereon with an amendment and recommends that the bill (as 

amended) do pass. 

PURPOSE

The purpose of S. 675 is to ensure parity in federal treatment of 

Native nations with whom the United States has a trust responsibility, to establish a process for the reorganization and federal recognition of a Native Hawaiian governing entity, and to reaffirm the 

special political and legal relationship between the United States 

and the Native Hawaiian governing entity for purposes of carrying 

on a government-to-government relationship. 

BACKGROUND

Native Hawaiians are the only federally-recognized Native people 

barred from self-determination and self-governance 

The Native Hawaiian people are the only federally-recognized 

Native people without a government-to-government relationship 


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1 In 2011, the State of Hawaii officially recognized the Native Hawaiian people as ‘‘the only 

indigenous, aboriginal, maoli population of Hawaii.’’ Act 195 (26th Haw. Leg. Sess. (2011)). ‘‘The 

enactment of Act 195 was yet another example of Hawaii’s ongoing desire to recognize the 

unique contributions and traditions of the Native Hawaiian people.’’ Hawaiian Homeownership 

Act of 2011: Oversight Field Hearing on S. 65 Before the S. Comm. on Indian Affairs, 112th 

Cong. (Apr. 13, 2012) (statement of Sen. Brickwood Galuteria, Majority Leader, Hawaii State 

Capitol). That Native Hawaiians, Alaska Native, and American Indians are not of the same racial group should not be a factor in determining who is considered ‘‘Indian.’’ Alaska Natives and 

American Indians of the forty-eight contiguous states have many racial differences and yet both 

groups are considered Indians under federal law. Despite racial differences between Indians in 

the lower forty-eight states and Alaska Natives, the United States Supreme Court has included 

Alaska Natives, non-Indians under an anthropological meaning, within the term ‘‘Indian.’’ Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–87 (1918) (noting that the Annette Islands 

were established as a reservation ‘‘for the use of the Metlakahtla Indians . . . and such other 

Alaskan natives as may join them’’). See discussion infra pp. 6–9. 2S. Comm. on Indian Affairs: Business Meeting to consider S. 675, S. 1345, S. 1684 (Sept. 

13, 2012) (statement of Sen. Daniel K. Akaka, Chairman, S. Comm. on Indian Affairs). Native 

Hawaiians ‘‘have yet to be afforded the same recognition as our first Americans’’ and the responsibility to rectify this disparity is a moral imperative on the part of the United States Federal 

Government. 156 CONG. REC. H700, H712 (daily ed. Feb. 23, 2010) (statement of Rep. 

Faleomavaega). See also Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 

65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Melody 

Mackenzie, Associate Professor of Law and Director of Ka Huli Ao Center for Excellence in Native Hawaiian law at University of Hawaii, Richardson School of Law) (‘‘Native Hawaiians . .

. are . . . the only native group in the United States that has a long history of . . . federal 

recognition, but does not have a clearly acknowledged government-to-government relationship 

with the U.S. government.’’). The Congress has never properly addressed the status of Native 

Hawaiians and it is within Congress’ constitutional authority to do so. U.S. CONST., art. I, § 8, 

cl. 3. See also United States v. Lara, 541 U.S. 193, 196 (2004) (‘‘We must decide whether Congress has the constitutional power to relax restrictions that the political branches have, over 

time, placed on the exercise of a tribes’ inherent legal authority. We conclude that Congress does 

possess this power.’’). ‘‘Not 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 

the duty of exercising a fostering care and protection over all dependent Indian communities.’’ 

Sandoval, 231 U.S. at 45–46; see United States v. Kagama, 118 U.S. 375, 384–85 (1886) (‘‘From 

[the Indians] very weakness 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 the duty of protection, 

and with it the power. . . . 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; because it has never been denied; and because it alone can enforce its laws on all the 

tribes.’’). 3Sen. Daniel K. Akaka, Final Speech to the Council for Native Hawaiian Advancement’s Annual Native Hawaiian Convention (Oct. 5, 2012). 

with the Federal Government. Native Hawaiians are indigenous to 

the State of Hawaii—just as American Indians are indigenous to 

the contiguous United States and Alaska Natives are indigenous to 

the State of Alaska.1 S. 675 creates parity within federal policy so 

that Native Hawaiians will be treated as are all other Native 

Americans.2

I have seen so many changes in Hawai‘i and across the 

country, and I have been amazed at the resiliency of our 

Native Hawaiian people, our culture, and our language. 

. . . I have witnessed profound change in the status and 

treatment of all indigenous peoples. Gone are the days 

when teaching our language was banned, when our culture 

and traditions were deemed unimportant. We now know 

that our language, culture, and traditions hold incredible 

wisdom about how best to live in this place we call Hawaii.3

Having survived more than 200 years of foreign influence, the 

Native Hawaiian people are determined to preserve, develop, and 

pass on to future generations their ancestral territory and their 

cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions. 

Native Hawaiians preserve and perpetuate their culture, language, 


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4 A Timeline of Revitalization, E OLA KA ‘OLELO HAWAII: THE HAWAIIAN LANGUAGE SHALL

LIVE (Nov. 17, 2012). The two leading entities in Native American language revitalization are 

‘Aha Pu ̄nana Leo, Inc. and the Liaison of Ka Haka ‘Ula O Ke‘eliko ̄lani, Hawaiian language college established by the Hawaii State Legislature in 1997 at the University of Hawaii at Hilo. 

‘‘These two entities lead a consortium of programs in Hawaii and also in the national Native 

American language immersion effort.’’ In Our Way: Expanding the Success of Native Language 

& Culture-Based Education: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th 

Cong. (May 26, 2011) (statement of Na ̄maka Rawlins, Liaison, Consortium ‘Aha Pu ̄nana Leo, 

Ka Haka ‘Ula O Ke‘eliko ̄lani, Ke Kula ‘o Na ̄wahı ̄okalani‘o ̄pu‘u). 5 In Our Way: Expanding the Success of Native Language & Culture-Based Education: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (May 26, 2011) (statement 

of Na ̄maka Rawlins, Liaison, Consortium ‘Aha Pu ̄nana Leo Ka Haka ‘Ula O Ke‘elik Io ̄lani, Ke 

Kula ‘o Na ̄wahı ̄okalani‘o ̄pu‘u). (noting that current federal educational legislation fails to take 

into account ‘‘the unique needs of Native American languages and the crisis of extinction facing 

Native American languages’’ and this legislation may actually suppress Native American languages in American education). 6 ‘‘[T]he social statistics of Native Hawaiians, welfare rolls, incarceration rates, health issues 

are very, very significant and Hawaiians rank on the top of all of those social ills at this point, 

and have been for many, many years. And the legislation and NAHASDA and homeownership 

I think is an important step in providing stability.’’ Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) 

(statement of Richard Naiwieha Wurdeman, President, Native Hawaiian Bar Ass’n). 7Shawn Malia Kana‘iaupuni, Nolan J. Malone & Koren Ishibashi, ka huaka‘i i mua: Findings 

from the 2005 Native Hawaiian Educational Assessment (Mar. 2005). 8OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 189, Table 2.48 (2011) [hereinafter Data Book]. 9 Id. at 251, Table 2.91. 

and lifeways through traditional practices like ho‘oponopono (peacemaking and conflict resolution), la‘au lapa‘au (traditional medicine), lua (martial arts), oli (chant), and hula (dance). These practices help Native Hawaiians address current socio-economic conditions, education, health, and resource management. By encouraging 

traditional practices as well as civic participation, community governance, and self-sufficiency, Native Hawaiians ensure that their 

culture will continue for many generations to come. 

The Native Hawaiian people have become leaders in national efforts to ensure the survival and proliferation of indigenous languages, and are the first Native American peoples to develop and 

offer Native language education programming from preschool to 

Ph.D.4 ‘‘For the past twenty years [Native Hawaiians] have been 

recognized as ‘the go-to source of support’ for Native American immersion and teaching methodology for endangered indigenous languages.’’ 5

Native Hawaiians suffer the same consequences of negative federal 

treatment as American Indians and Alaska Natives, yet Native 

Hawaiians do not have a means to address these issues 

Native Hawaiian socio-economic and health conditions lag significantly behind other populations in Hawaii 6 and the nation, and remain comparable to other Native Americans. Native Hawaiians 

consistently exhibit higher rates of unemployment than the state 

average, and are increasingly underrepresented in white-collar 

jobs, while remaining overrepresented in blue-collar jobs.7 In 1999, 

14.1 percent of Native Hawaiian families living in Hawaii lived 

below the poverty level, nearly double the statewide rate of 7.6 percent.8 In 2010, Native Hawaiians made up the largest percentage 

of people, 28.7 percent, who received homeless shelter services.9

Native Hawaiian veterans also suffer disproportionately from the 


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10Programs and Services for Native Veterans: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (May 24, 2012) (statement of D. Noelani Kalipi, President, TiLeaf 

Group) (citations omitted). 11Shawn Malia Kana‘iaupuni, Nolan J. Malone & Koren Ishibashi, ka huaka‘i i mua: Findings from the 2005 Native Hawaiian Educational Assessment (Mar. 2005). 12 Id. 13DATA BOOK, supra note 8, at 559, Figure 7.49b & 562, Figure 7.49g, Figure 7.49h (for the 

years 1995–2000). 14 Id. at 542, Table 7.42b & 544, Figure 7.42h. 15 Id. at 598–599, Table 7.64. 16 Native Hawaiian Government Reorganization Act: Legislative Hearing on S. 1011 Before the 

S. Comm. on Indian Affairs, 111th Cong. 16 (Aug. 6, 2009) (statement of Haunani Apoliona, 

Chairperson, Board of Trustees, Office of Hawaiian Affairs). 17 Advancing the Federal-Tribal Relationship through Self-Governance and Self-Determination: 

Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. Noelani Kalipi, President, TiLeaf Group). 18Sen. Daniel K. Akaka, Address at the Alaska Federation of Natives Convention (Oct. 19, 

2012). 19 Advancing the Federal-Tribal Relationship through Self-Governance and Self-Determination: 

Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. Noelani Kalipi, President, TiLeaf Group). 

consequences of military service, including higher rates of disorders 

related to combat exposure.10

The achievement outcomes for Native Hawaiian children are 

among the lowest throughout elementary and secondary school and 

the math achievement scores of Native Hawaiians continue to be 

significantly lower than those of other ethnic groups.11 Less than 

half of Native Hawaiian adults hold either a bachelor’s or graduate/ 

professional degree as compared to all adults in Hawaii.12

Native Hawaiians have the highest incidence of lung, breast, and 

uterine cancer of any group in Hawaii.13 In 2007, 11 percent of the 

Native Hawaiian population suffered from diabetes, compared to a 

rate of 6 percent for the rest of the State of Hawaii.14 In 2009 and 

2010, 69.6 percent of the Native Hawaiian population was considered overweight or obese as compared to the statewide average of 

52.1 percent.15

Until there is a recognized government-to-government relationship between the Federal Government and the Native Hawaiian 

people, as there exists between the Federal Government and all 

other Native American peoples, Native Hawaiians will not have access to the federal policy of self-determination, nor will they be able 

to exercise self-governance, as do all other Native Americans. This 

policy was ‘‘intended to assure that all three groups of America’s 

indigenous Native people, American Indians, Alaska Natives and 

Native Hawaiians have equal status under federal law.’’ 16 Without 

access to this federal policy, without the opportunity to make decisions about their own affairs, resources, and futures, the disparities 

between Native Hawaiians and other Americans will persist and 

continue to worsen. Self-governance empowers Native people by 

recognizing, in policy and in practice, the right of all Native people 

to govern themselves.17 ‘‘[S]elf-determination ensures the promise 

of Native self-sufficiency. It results in our continued ability to be 

productive and contribute to the well-being of our families, our 

communities, and our great nation.’’ 18 The steady growth of sustained economic development across the nation among Native governments is evidence that the federal policy of self-determination 

does work.19

[A] growing number of [Native] nations have broken out 

of the prevailing pattern of poverty. They have moved aggressively to take control of their futures and rebuild their 


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20 Id. (quoting Stephen Cornell & Joseph P. Kalt, Two Approaches to the Development of Native Nations, One Works, the Other Doesn’t, in REBUILDING NATIVE NATIONS: STRATEGIES FOR

GOVERNANCE AND DEVELOPMENT 1, 6 (Miriam Jorgensen, ed., 2007)). 21Sen. Daniel K. Akaka, Speech at the Annual Native Hawaiian Convention (Aug. 25, 2011). 22 U.S. CONST. art. I, § 8, cl. 3. 23Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); United States v. Sioux Nation, 448 U.S. 371 (1980); U.S. v. Lara, 541 U.S. 193, 203 (2004). Congress’ plenary power over 

Indian affairs includes the power to recognize, terminate and restore the tribal status of Indian 

tribes. Lara, 541 U.S. at 201–2. 24Lara, 541 U.S. at 200. 

nations, rewriting constitutions, reshaping economies, and 

reinvigorating Indigenous communities, cultures, and families. Today they are creating sustainable, self-determined 

societies that work in all dimensions—economic, social and 

political.20

Native people across the country have benefitted from the United 

States’ policy of supporting self-determination and self-governance 

for its indigenous peoples. ‘‘With a similar government-to-government relationship, Native Hawaiians could access the most powerful tools in federal law to perpetuate our culture and our traditions.’’ 21

Committee jurisdiction over American Indians, Alaska Natives and 

Native Hawaiians 

This Committee has jurisdiction to study the unique problems of 

American Indian, Native Hawaiian, and Alaska Native people, and 

to propose legislation to alleviate these difficulties. These issues include, but are not limited to, Indian education, economic development, land management, trust responsibilities, health care, and 

claims against the United States. Additionally, most legislation 

proposed by Members of the Senate that specifically pertains to 

American Indians, Native Hawaiians, or Alaska Natives is under 

the jurisdiction of the Committee. This Committee has exercised jurisdiction over matters related to Native Hawaiians since it was organized in 1977. The Committee has concluded that the Native Hawaiian people are a distinctly Native community that fall within 

the scope of Congress’s power to legislate with respect to ‘‘Indian 

Tribes.’’ 22

Congressional authority over Indian affairs 

Since the founding of the United States, Congress has exercised 

a broad constitutional authority over Indian affairs while simultaneously recognizing the sovereignty possessed by the Native people 

as the original inhabitants of this nation who occupied and exercised dominion and control over the lands which eventually became 

the United States.23 ‘‘It is well-established that ‘the Constitution 

grants Congress broad general powers to legislate in respect to Indian tribes, powers that [the Supreme Court has] consistently described as ‘plenary and exclusive.’ ’’ 24

The Constitution vests Congress with the authority to address 

the conditions of the indigenous, Native people of the United 

States, and the Supreme Court has upheld this congressional auVerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251

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25 U.S. CONST. art. I, § 8, cl. 3. Congressional authority over Indian affairs does not emanate 

solely from the Commerce Clause’s reference to ‘‘Indian Tribes.’’ Rather, the Constitution implicitly gives Congress the power to manage Indian affairs more generally. See, e.g., Board of County Comm’rs of Creek County v. Seber, 318 U.S. 705, 715 (1943); United States v. Sandoval, 231 

U.S. 28, 45–46 (1913); United States v. Kagama, 118 U.S. 375, 383–84 (1886). 26 U.S. CONST. art. II, § 2, cl. 2. 27 U.S. CONST. art. IV, § 2. 28 U.S. CONST. art. IV, § 3, cl. 2. 29 U.S. CONST. art. I, § 8, cl. 11. 30Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). 31 Jon Van Dyke, The Political Status of the Native Hawaiian People, 17 YALE L. & POL’Y REV. 95, 119 (1998). Just as there is no universally agreed-upon legal defmition of ‘‘Indian,’’ there 

is also no universal ‘‘definition of what constitutes a Native nation, in part because each community defines itself differently and because the U.S. government in its relations with tribes has 

operated from conflicting sets of cultural and political premises across time.’’ DAVID E. WILKINS

& HEIDI KIIWETINEPINESIIK STARK, AMERICAN INDIAN POLITICS AND THE AMERICAN POLITICAL

SYSTEM 3 (3d ed. 2011) (citing the Indian Self-Determination Act of 1975, 25 U.S.C. § 450e, 

which defines an Indian tribe as ‘‘any Indian tribe, band, nation, or other organized group or 

community . . . which is recognized as eligible for the special programs and services provided 

by the United States to Indians because of their status as Indians.’’) (citations omitted). See also 

Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 n.4 (1979) (‘‘The scope of the phrase 

‘Indian tribe’ may vary from statute to statute.’’) (citing United States v. Sandoval, 231 U.S. 28, 

48–49 (1913)). ‘‘Although no universal definition exists, many statutes give definitions for purposes of particular laws, federal agencies like the Bureau of Indian Affairs (BIA) generate their 

own definitions, numerous courts have crafted definitions, and the term tribe is found—though 

not defined—in the Constitution’s commerce clause.’’ WILKINS & STARK, supra note 31, at 3. 

‘‘Federal law ordinarily uses the term ‘Indian tribe’ to designate a group of native people with 

whom the federal government has established some kind of political relationship.’’ COHEN’S

HANDBOOK OF FEDERAL INDIAN LAW 137 (2005 ed.). 32Worcester, 31 U.S. at 559. 33See e.g., 42 U.S.C. § 11701(1) (‘‘The Congress finds 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.’’). See also Native Hawaiian Government Reorganization Act of 

2009: Legislative Hearing on S. 1011 Before the S. Comm. on Indian Affairs, 111th Cong. 66 

(Aug. 6, 2009) (statement of Steven Joseph Gunn, Attorney and Adjunct Professor of Law, Washington Univ. in St. Louis) (‘‘In regard to the term Indian Tribe, it has been used synonymously 

or interchangeably with the term Indian Nation. [Alexander] Hamilton in Federalist 24 talked 

about regulating trade with Indian tribes and spoke of them as Indian nations. And [in] Worcester v. Georgia, Chief Justice Marshall talked about the words treaty and nation as being Anglo 

words of our choice, but clearly words that are applicable to Indian tribes.’’) (citations omitted). 

thority under the Indian Commerce Clause,25 the Treaty Clause,26

the Supremacy Clause,27 the Property Clause,28 and the War Powers Clause.29 Congress may exercise its power to rationally promote 

the welfare of the Native people of the United States. ‘‘These powers comprehend all that is required for the regulation of our intercourse with Indians.’’ 30

‘‘Indians’’ and ‘‘tribes’’: political and legal distinctions, not cultural 

or racial designations 

American Indians, Alaska Natives, and Native Hawaiians are 

often generally referred to as ‘‘Native Americans,’’ and are cited in 

the Constitution as ‘‘Indians’’ or ‘‘Indian Tribes.’’ 31 As indigenous, 

or Native, peoples, American Indians, Alaska Natives, and Native 

Hawaiians have collective and individual rights under international and domestic law, including rights of self-determination 

and self-governance. 

Although the aboriginal tribes, nations, and peoples, over which 

Congress exercised its Indian affairs authority were defined in part 

by communities of common ancestry, the unique constitutional significance of such entities derives from their separate existence as 

independent political communities.32 Native people and groups 

were nations,33 and the relationship between the United States 

and its Native peoples reflected a political understanding between 

sovereigns. The Supreme Court has repeatedly made clear that Indian tribes are the political and familial heirs to ‘‘once-sovereign 


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34 United States v. Antelope, 430 U.S. 641, 646 (1972); see Fisher v. District Ct. of Sixteenth 

Jud. District of Mont., 424 U.S. 382, 389 (1976); Morton v. Mancari, 417 U.S. 535, 553–54 

(1974); Elk v. Wilkins, 112 U.S. 94, 109 (1884); see also Oklahoma Tax Comm’n v. Sac & Fox 

Nation, 508 U.S. 114, 123 (1993); United States v. Mazurie, 419 U.S. 544, 557 (1975). 35 Concerning Native American communities, the Court has held that ‘‘the questions whether, 

to what extent, and for what time they shall be recognized and dealt with as dependent tribes 

requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts.’’ Sandoval, 231 U.S. at 46 (citations omitted). For example, the 

Supreme Court approved Congress’ tribal designation for the Pueblo Indians of New Mexico in 

1913. Prior to the United States’ acquisition of New Mexico, the Pueblo Indians were Mexican 

citizens. They became citizens of the United States through the Treaty of Guadalupe Hidalgo, 

U.S.-Mex., 9 Stat. 922, T.S. No. 207 (1848). ‘‘The Court determined that the Pueblos fell with 

the scope of Congress’ Indian commerce power and could be recognized as ‘Indians.’ ’’ Derek H. 

Kauanoe & Breann Swann Nu‘uhiwa, We Are Who We Thought We Were: Congress’ Authority 

to Recognize a Native Hawaiian Polity United by Common Descent, 13 ASIAN-PAC. L. & POL’Y

J. 117, 150 (2012) (citing Sandoval, 231 U.S. at 45–46). Decisions like these were noteworthy 

because the Pueblo Indians, once citizens of Mexico, had been already been declared ‘‘non-Indians’’ by the Court in 1877 because they differed in many respects from the concept of ‘‘Indian 

tribe’’ that prevailed at the time. Despite their differences, the Pueblo Indians lived in ‘‘distinctly Indian communities’’ and Congress acted properly under the Indian Commerce Clause 

in determining that they were ‘‘dependent communities entitled to its aid and protection, like 

other Indian tribes.’’ See Sandoval, 231 U.S. at 46–47; United States v. Candelaria, 271 U.S. 

432, 439, 442–43 (1926). The United States now regards Alaska Native groups as Indian tribes, 

despite earlier court holdings and Attorney General Opinions to the contrary. Kauanoe & Swann 

Nu‘uhiwa, supra note 35, at 150 (citations omitted). In 1978, the Court again recognized Congress’ authority to create a reservation for the benefit of the Choctaw Indians in Mississippi, 

even though (1) they were ‘‘merely a remnant of a larger group of Indians’’ that had moved to 

Oklahoma; (2) ‘‘federal supervision over them had not been continuous’’; and (3) they had resided in Mississippi for more than a century and had become fully integrated into the political 

and social life of the State. United States v. John, 437 U.S. 634, 652–53 (1978). The Court deferred to Congress’ determination that they were a ‘‘tribe for the purposes of federal Indian law’’ 

even though the tribe had only recently organized into a distinct Indian community. Id. at n. 

20. 36See Worcester, 31 U.S. (6 Pet.) at 519, 559, 583 (equating Indian tribe and Indian nation 

and defining ‘‘nation’’ as a ‘‘people distinct from others’’ and ‘‘as being vested with rights which 

constitute them a state, or separate community’’). The term ‘‘Indian’’ is often used interchangeably with ‘‘aboriginal,’’ yet ‘‘[t]here is no single definition of the term Indian.’’ STEPHEN L. 

PEVAR, THE RIGHTS OF INDIANS AND TRIBES: THE AUTHORITATIVE ACLU GUIDE TO INDIAN AND

TRIBAL RIGHTS 18 (3d ed. 2004)-(emphasis in original). ‘‘In 1846, in a case called United States 

v. Rogers, the Supreme Court described Indian tribes as ‘aboriginal tribes of Indians.’ In 1867, 

the United States enacted the Treaty of Cession with Russia, and it spoke of Alaska Natives 

and compared their treatment to that of the ‘aboriginal tribes’ of the United States. So we have 

used the word Indian and aboriginal interchangeably, and clearly, Native Hawaiians are the aboriginal and Native peoples of the Hawaiian Islands.’’ Native Hawaiian Government Reorganization Act of 2009: Legislative Hearing on S. 1011 Before the S. Comm. on Indian Affairs, 111th 

Cong. 66 (Aug. 6, 2009) (statement of Steven Joseph Gunn, Attorney and Adjunct Professor of 

Law, Washington Univ. in St. Louis) (citing United States v. Rogers, 45 U.S. (1 How.) 567, 571 

(1846)). See also WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 9 (5th ed. 2009) 

(‘‘ ‘Indian’ is another term the meaning of which varies according to the purpose for which the 

definition is sought.’’) (citing FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 2 (1942)). The 

use of the term ‘‘Indian’’ is credited to Christopher Columbus when he wrongly called the indigenous people of the Bahamas archipelago ‘‘Indians’’ because he incorrectly believed he had discovered the East Indies. ‘‘Believing he [Columbus] has discovered his conjectured shorter sea route 

to the Indies, he naturally calls the first people he encounters los Indios—Indians—and claims 

their island for the Spanish Crown. . . . ‘Regardless of whether Columbus thought he had landed among the East Indies or among islands near Japan or even elsewhere near the Asian continent, he would probably have used the same all-encompassing term for the natives, because 

India stood as a synonym for all of Asia east of the river Indus at the time and Indies was the broadest designation available for all the area he claimed under royal patent.’’ ROBERT A. 

WILLIAMS, JR., SAVAGE ANXIETIES: THE INVENTION OF WESTERN CIVILIZATION 181 (2012) 

(quoting Robert Berkhofer, Jr., The White Man’s Indian: Images of the American Indian from 

Columbus to the Present 5 (1979)) (emphasis in original). 

political communities,’’ and not ‘‘racial group[s].’’ 34 The Supreme 

Court has also repeatedly applied these concepts of ‘‘Indian’’ and 

‘‘tribe’’ to a wide variety of Native American communities, recognizing both the constant evolution of Native communities and that 

the questions of whether and how to treat these evolving communities are ones assigned to Congress under the Constitution.35

To the framers of the Constitution, an ‘‘Indian tribe’’ simply 

meant a distinct group of indigenous people with their diversity of 

unique cultures, languages and traditions—each with their own 

ways of governing themselves.36 ‘‘The consistent use of these terms 


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37Sen. Daniel K. Akaka, Final Speech to the Native Hawaiian Convention (Oct. 5, 2012). 38 Advancing the Federal-Tribal Relationship through Self-Governance and Self-Determination: 

Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of D. Noelani Kalipi, President, TiLeaf Group). 39 25 U.S.C. § 476(a). 40 25 U.S.C. § 711. 

‘Indian’ and ‘tribe’ results in the Federal Government treating all 

federally-recognized Native peoples equally, with the same tools to 

address the unique needs and priorities in their own communities.’’ 37

The fact that they are from different regions of the 

United States and speak different languages does not 

change the fact that they are indigenous peoples with 

whom the United States executed treaties, took lands into 

trust on their behalf, and has a special responsibility to 

promote their welfare through the federal policy of selfgovernance and self-determination. The reference to native 

groups as ‘‘Indians’’ or ‘‘tribes’’ is a reflection of their status as indigenous peoples.38

Because Native Hawaiians today have a direct historic, cultural, 

and land-based link to the indigenous people who inhabited and exercised sovereignty over the Hawaiian Islands before the first European contact in 1778, and because they are determined to preserve and to pass on to future generations their Native lands and 

their distinct culture, the Native Hawaiian community falls squarely within the scope of Congress’s plenary power to legislate with respect to Indian tribes. 

Congressional authority to provide for the reorganization and recognition of Indian tribes 

Congress has frequently enacted legislation that provides for the 

reorganization of Indian tribes and the recognition of Native 

sovereigns pursuant to its Indian affairs powers. For example, the 

Indian Reorganization Act of 1934 provides that ‘‘[a]ny Indian tribe 

shall have the right to organize for its common welfare, and may 

adopt an appropriate constitution and bylaws . . . which shall become effective when—(1) ratified by a majority vote of the adult 

members of the tribe or tribes at a special election authorized and 

called by the Secretary [of the Interior] under such rules and regulations as the Secretary may prescribe; and (2) approved by the 

Secretary.’’ 39

On numerous occasions, Congress has enacted specific statutes 

that restore federal recognition of previously terminated tribes. 

There are many tribal restoration acts throughout Title 25 of the 

U.S. Code, involving interim council elections set up and run by the 

Secretary, with participation based on statutory criteria that include lineal descent or required ancestry, as well as other measures 

of connection to the community. Some of these statutes establish a 

process for nominating and electing members of an interim council 

or body that has responsibility for functioning as the acting tribal 

government and developing proposed constitutions and bylaws to 

be voted on by the members in an election conducted by the Secretary.40 In addition, courts have relied on treaties or laws that 


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41See Ex Parte Crow Dog, 109 U.S. 556, 568 (1883) (discussing a federal pledge in a treaty 

to ‘‘secure to’’ a tribe ‘‘an orderly government, by appropriate legislation thereafter to be framed 

and enacted’’). 42See Fletcher v. United States, 116 F.3d 1315, 1327 (10th Cir. 1997) (discussing approving 

and invoking an act in which ‘‘Congress . . . prescribed the form of tribal government for the 

Osage Tribe,’’ including ‘‘establish[ing] the offices of a principal chief, an assistant principal 

chief, and an eight-member Osage tribal council, and requir[ing] that elections be held every 

four years to fill those offices’’). 43Kauanoe & Swann Nu‘uhiwa, supra note 35, at 151. 44See, e.g., United States v. Lara, 541 U.S. 193, 196 (2004) (‘‘We must decide whether Congress has the constitutional power to relax restrictions that the political branches have, over 

time, placed on the exercise of a tribes’ inherent legal authority. We conclude that Congress does 

possess this power.’’). 45See, e.g., AMERICAN INDIAN POLICY REVIEW COMMISSION, 2 FINAL REPORT, APPENDIXES, AND

INDEX SUBMITTED TO CONGRESS (1977) (‘‘The purpose behind the trust is and always has been 

to ensure the survival and welfare of Indian tribes and people. This includes an obligation to 

provide those services required to protect and enhance Indian lands, resources, and self-government, and also includes those economic and social programs that are necessary to raise the 

standard of living and social well-being of the Indian people to a level comparable to the nonIndian society.’’). 46Seminole Nation v. United States, 316 U.S. 286, 296–97 (1942). 47This moral obligation was first discussed by Chief Justice John Marshall in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). 48Seminole Nation, 316 U.S. at 296; see United States v. Mitchell, 463 U.S. 206, 225–26 (1983) 

(noting ‘‘the undisputed existence of a general trust relationship between the United States and 

the Indian people’’). 49 COHEN, supra note 31, at 420–21. 50Stephen L. Pevar, The Federal-Tribal Trust Relationship: Its Origin, Nature, and Scope 2– 

3 (2008) (‘‘Many [statutes] give a federal agency elaborate control over tribal property, preContinued 

promise to provide for tribal self-government,41 as well as statutes 

that prescribe in detail the structure and operation of tribal governments.42

Each of the 566 federally recognized tribes has had its own 

unique political history with the United States. ‘‘While no Native 

political history is perfectly analogous to the political history of Native Hawaiians, it is also true that no Native political history is 

perfectly analogous to any other Native political history.’’ 43 Despite 

their differences, each of these communities falls within the scope 

of Congress’ authority.44

The federal trust responsibility to the Native Hawaiian people 

The trust doctrine is one of the most important principles in Federal Indian law.45 In treaties, Native nations relinquished certain 

rights in exchange for promises from the federal government. The 

trust responsibility is the Federal Government’s obligation to honor 

those promises. This obligation is a legal one under which the 

United States ‘‘has charged itself with moral obligations of the 

highest responsibility and trust’’ toward Indian tribes.46 Since 

1831, the United States Supreme Court has recognized the existence of a trust relationship between the United States and Indian 

tribes.47 Over the past century, the Supreme Court has repeatedly 

reaffirmed this ‘‘distinctive obligation of trust incumbent upon the 

Government’’ in its dealings with Indians.48

Nearly ‘‘every piece of modern legislation dealing with Indian 

tribes contains a statement reaffirming the trust relationship between tribes and the Federal Government.’’ 49 Within the framework of this trust relationship, Congress has enacted hundreds of 

statutes defining the contours of the United States’ fiduciary responsibilities. Statutes, like treaties, can create a trust duty. As extensions of treaties, statutes are often the vehicles by which Congress creates the programs and services necessary to fulfill its treaty obligations.50


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cluding the tribe from managing these resources on their own. The Supreme Court recognized 

in United States v. Mitchell, 463 U.S. 206 (1983), that when this arrangement occurs, the agency then has the fiduciary duty to manage that property wisely and in the tribe’s best interests.’’) 

(emphasis in original). 51 42 Stat. 108 (1921). This Act is now part of Hawaii’s State Constitution. See Haw. Const. 

art. XII. 52 Van Dyke, supra note 31, at 106 (noting that the following laws are among those that classify Native Hawaiians as Native Americans and include them in Native American benefit programs: the National Historic Preservation Act § 4006(a)(6), 16 U.S.C.A. § 470a(d)(6); the National 

Museum of the American Indian Act §§ 1–10, 13, 16, 20 U.S.C. §§ 80q–80q–12, 80q–15 (1994); 

the Drug Abuse Prevention, Treatment and Rehabilitation Act § 4106(d), 21 U.S.C. § 1177(d) 

(1994); Native American Languages Act, 25 U.S.C. §§ 2901–2912 (1994); the Workforce Investment Act of 1998 § 166, 29 U.S.C.A. § 2911 (West Supp. 1998); the American Indian Religious 

Freedom Act, 42 U.S.C. § 1996 (1994); the Native American Programs Act of 1974, 42 U.S.C. 

§§ 2991–2992 (1994); the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, 

and Rehabilitation Act § 311(c)(4), 42 U.S.C. § 4577(c)(4) (1994). For a sampling of other recent 

laws aimed at benefiting Native Hawaiians economically and culturally, see, for example, 20 

U.S.C.A. § 4441 (West Supp. 1998); 20 U.S.C.A. § 7118 (West Supp. 1998); the Native Hawaiian 

Education Act, 20 U.S.C.A. §§ 7901–7912 (West Supp. 1998); the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001–3013 (1994); 42 U.S.C. § 254s (1994); the Native 

Hawaiian Health Care Improvement Act of 1992, 42 U.S.C. §§ 11701–11714 (1994); the Cranston-Gonzalez National Affordable Housing Act § 958, Pub. L. No. 101–625, 104 Stat. 4079, 4422 

(1990). See also, Native Hawaiian Education Act § 9212, 20 U.S.C.A. § 7912(1) (West Supp. 

1998); National Museum of the American Indian Act § 16(11), 20 U.S.C. § 80q–14(11) (1994); Native American Graves Protection and Repatriation Act § 2(10), 25 U.S.C. § 3001(10) (1994)). 53 Native Hawaiian Education Act, 20 U.S.C. §§ 7511–7517; Native Hawaiian Health Care Improvement Act, 42 U.S.C. §§ 11701–11714. 

Native Hawaiians are the indigenous, Native people of Hawaii 

with whom the United States has a trust relationship. The terms 

‘‘Native Hawaiian,’’ ‘‘Hawaiian,’’ and ‘‘native Hawaiian’’ are used 

interchangeably in numerous laws by federal, state, and local governments to refer to the indigenous people of Hawaii. Congress has 

consistently recognized its political, legal, and trust relationship 

with the Native Hawaiian people. In 1920, Congress began enacting laws to meet its trust responsibility to the Native Hawaiian 

people, beginning with passage of the Hawaiian Homes Commission Act (HHCA).51 Since passage of the HHCA, Congress has repeatedly recognized the distinct status of Native Hawaiians. For 

over 90 years, the United States has consistently interacted with 

Native Hawaiians based on the same political and legal relationship it has maintained with all America’s Native peoples. 

The United States has acknowledged this relationship and its 

duty to the Native Hawaiian people, and in fact has codified its 

duty by enacting over 150 statutes.52 Pursuant to its authority 

under the Constitution, Congress has included Native Hawaiians 

in numerous laws enacted to benefit other Native peoples in the 

United States and, in other statutes, has established separate programs specifically for Native Hawaiians, including. the Native Hawaiian Education Act and the Native Hawaiian Health Care Improvement Act.53 The findings in both of these acts specifically 

refer to the existence of a trust relationship between the Native 

Hawaiian people and the United States. By enacting hundreds of 

statutes and other actions, the Federal Government has assumed 

the special responsibilities of a trust relationship toward Native 

Hawaiians—as it has for American Indians and Alaska Natives. 

The struggles of Native Hawaiians to protect their rights as an 

indigenous people, and secure a land and natural resource base to 

exercise those rights, echo the historic struggle of all Native Americans. As a result, in the early 1970s, Congress began to include Native Hawaiians in statutes establishing programs designed to provide services for American Indians and Alaska Natives. Native Hawaiians are included in over 150 congressional acts providing asVerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251

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54There are also 12 statutes that specifically require the Federal Government to consult with 

Native Hawaiian organizations in carrying out its trust responsibility. Infra notes 171 & 172. 55 Bethany R. Berger, Reconciling Equal Protection and Federal Indian Law, 98 CAL. L. REV. 

1165, 1194 (2010). ‘‘A closer examination of the historical context, however, shows that the denial of Native Hawaiian sovereignty and property followed the familiar process of treating indigenous peoples as a race in need of reformation rather than a polity with political rights. Measures that seek to restore a portion of what this racialization took away should not falter under 

the guise of equal protection.’’ Id. 56 Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. 

Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Melody Mackenzie, Associate Professor of Law and Director of Ka Huhi Ao Center for Excellence in Native Hawaiian 

law at University of Hawaii, Richardson School of Law). 57 HISTORY, JURISDICTION, AND A SUMMARY OF LEGISLATIVE ACTIVITIES OF THE S. SELECT

COMM. ON INDIAN AFFAIRS, 95TH CONG. 24 (1977–1978). However, just as tribes have been able 

to maintain a trust relationship with the Federal Government through tribal councils or similar 

governing bodies, Native Hawaiians have been able to maintain this relationship through their 

homestead associations. Homestead associations have been vital to the implementation of the 

HHCA as Congress intended. ‘‘[S]elf-determination and self-governance is [sic] expressed 

through the existence of organizations governed by beneficiaries [of the HHCA] or homesteaders 

themselves. These homestead associations have existed for decades, and have representative 

leadership through democratically elected processes for each homestead land area on different 

islands within the state.’’ Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 

65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Michelle 

Kauhane, Deputy Director, State of Hawaii, Department of Hawaiian Home Lands). 

sistance to Native people for health, housing, welfare, and education often on an equal basis with that provided to members of 

federally-recognized Indian tribes. That Congress has included Native Hawaiians in legislation promulgated primarily for the benefit 

of American Indians, in addition to enacting legislation solely for 

the benefit of Native Hawaiians is evidence of a continuing guardian-ward relationship between Native Hawaiians and the Federal 

Government. Congress enacted these 150 laws in order to carry out 

its responsibility to protect Native Hawaiian rights, address Native 

Hawaiian concerns, and provide resources to meet the needs of the 

Native Hawaiian people.54

Despite these explicit inclusions and congressional actions, Native Hawaiians are still not included in statutes that advance selfdetermination and provide a meaningful right to exercise self-governance. Although there are historical distinctions that separate 

Native Hawaiians from other Native Americans, none of these differences adequately explain the Federal Government’s failure to assume responsibility for the protection of Native Hawaiian people, 

their land, and their political status. Native Hawaiians remain the 

only major group of Native Americans with whom the nation has 

not reconciled historic claims.55

Many programs administered by the Bureau of Indian Affairs 

(BIA) are premised on the existence of a tribal government that exercises powers of self-governance. Because the Native Hawaiian 

government was illegally overthrown with the participation of the 

United States, the Native Hawaiian people were divested of their 

ability to be self-governing. ‘‘As a result of these actions by the 

United States—its participation in the overthrow and its ultimate 

annexation of Hawaii—the United States was instrumental in depriving Native Hawaiians of their sovereignty and their national 

lands.’’ 56 The Native Hawaiian people have a great need for these 

BIA programs, but cannot take advantage of them because the Native Hawaiian people no longer have a centralized governmental 

entity with which the BIA can consult.57

Although the United States has applied the same federal policies, 

and many of the same federal laws, to the Native Hawaiian people 

as it has applied to other Native Americans, it has not permitted 


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58 Robert N. Clinton, There is No Federal Supremacy Clause for Indian Tribes, 34 ARIZ. ST. 

L.J. 113, 164–65 (2002). ‘‘This was the period in which the United States acquired Cuba and 

the Philippines through the Spanish-American War, engaged in gunboat diplomacy in the Caribbean basin and Latin America, acquired the rights to build the Panama Canal by taking Panama away from Columbia, and overthrew the internationally-recognized indigenous monarchy 

of the Republic of Hawaii, ultimately annexing Hawaii to the United States. In short, it was 

the period when the American will toward empire reached its peak. During this period, in order 

to justify the expanding American colonial empire, both the political branches and the federal 

judiciary virtually ignored the constitutional principles upon which the nation was founded. Yet, 

the colonial expansion of American authority continued to raise thorny constitutional problems 

that the Supreme Court could not easily resolve by resorting to the first principles of the United 

States Constitution. Ultimately, it gave up trying.’’ Id. at 164 (citations omitted). 59 Id. at 164–65. 60 Native Hawaiian Government Reorganization Act: Legislative Hearing on S. 1011 Before the 

S. Comm. on Indian Affairs, 111th Cong. 5 (Aug. 6, 2009) (statement of Senator Daniel K. 

Inouye). 61Stephen Cornell & Joseph P. Kalt, American Indian Self-Determination: The Political Economy of a Successful Policy 13 (Joint Occasional Papers on Native Affairs (JOPNA) Working 

Paper No. 1, 2010). 62 Id. at 14. 

the Native Hawaiian people to become an organized, self-governing 

people. As a result, Native Hawaiians continue to suffer the consequences of the illegal overthrow of their indigenous government. 

Self-governance: an element of the federal trust responsibility 

The situation in Indian country within the United States paralleled the colonial expansion occurring abroad.58 Initially the idea 

was to remove Indians to the West—outside of the settled states. 

As the non-Indian settlement reached the central continent and 

began the migration toward California and the Pacific Northwest, 

the logistics of relocating tribes outside of state boundaries became 

increasingly problematic.59

As a nation we have changed course many times in the 

policies governing our dealings with Native people. We 

began with treaties with Native people, and then we 

turned to war. We enacted laws recognizing Native governments, and then we passed laws terminating our relationships with those governments. We repudiated our termination policy and restored our relationships with Native 

governments. Finally for the last 39 years we adopted a 

policy of recognizing and supporting the rights of this nation’s First Americans to self-determination and self-governance.60

After more than a century of failed efforts to improve the lives 

of America’s indigenous people, the only strategy that has worked 

is the federal promotion of tribal self-government, known as the 

policy of ‘‘self-determination.’’ 61 Self-determination is about improving the well-being of the indigenous people in the United 

States, the ‘‘poorest and, arguably, historically most oppressed and 

disempowered people.’’ 62

The federal policy of self-determination recognizes the distinctive 

cultural, political, and economic rights of all Native nations, and 

encourages the political autonomy of those Native nations. Despite 

its blemished treaty rights record, the United States has shown an 

ongoing belief in the validity of treaties and agreements by maintaining federal policies that affirm nation-to-nation relationships; 

enacting federal laws that support tribal self-governance and tribal 

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63The Obama Administration supports S. 675. See Announcement of U.S. Support for the 

United Nations Declaration on the Rights of Indigenous Peoples: Initiatives to Promote the Government-to-Government Relationship & Improve the Lives of Indigenous Peoples 4 (Dec. 9, 

2010). Other proponents that have expressed strong support for the Native Hawaiian Government Reorganization Act include Attorney General Eric Holder, Interior Secretary Ken Salazar, 

Interior Assistant Secretary Kevin Washburn, the current Governor of Hawaii, Neil Abercrombie, the entire Hawaii congressional delegation, the Hawaii State Office of Hawaiian Affairs, the American Bar Association and the National Congress of American Indians. 64This includes improving the quality of care offered by the Indian Health Service (IHS) by 

signing into law the Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010); promoting 

economic development in Indian country by providing more than $3 billion through the Recovery 

Act, Pub. L. No. 111–5, 123 Stat. 115 (2009), to help tribal communities renovate schools on 

reservations, spur job creation in tribal economies, improve housing and energy efficiency, and 

support health facilities and policing services; and making tribal communities safer through the 

Tribal Law and Order Act (TLOA), Pub. L. No. 111–211, 124 Stat. 2258 (2010). 65G.A. Res. 61/295, U.N. GAOR, 61st Sess., Supp. No. 49, U.N. Doc. 07–58681 (Oct. 2, 2007). 66Setting the Standard: Domestic Policy Implications of the U.N. Declaration on the Rights 

of Indigenous Peoples: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 

13–14 (June 9, 2011) (statement of Robert T. Coulter, Executive Director, Indian Law Resource 

Center) (noting that the conditions that gave rise to the Declaration have not improved and Native nations in this country continue to live with a system of Federal law that is unconstitutional, discriminatory, and unworkable, analogous to the ‘‘separate but equal’’ legal doctrine). 

‘‘Congress should embrace the Declaration, because it is American. It is based on American values. It is American in its origin.’’ Id. at 14. 67 Remarks by President Obama during the Opening of the Tribal Nations Conference & Interactive Discussion with Tribal Leaders (Nov. 5, 2009). 68 Advancing the Federal-Tribal Relationship through Self-Governance and Self-Determination: 

Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) (statement of Sen. Daniel K. Akaka, Chairman, S. Comm. on Indian Affairs) (noting how ‘‘self-deterContinued 

tions that carve out a path for positive intergovernmental relations. 

Self-determination is more than a guiding principle; it is a fullfledged right of all peoples that can be invoked by its holders to 

claim their inherent sovereignty. 

Since his first day in office, President Obama has worked to 

strengthen the government-togovernment relationship between the 

United States and Native governments in order to improve the 

quality of life for all Native Americans, including Native Hawaiians.63 The President and his Administration have made tremendous progress addressing major concerns in Indian country.64 In 

2009, the President signed a memorandum directing federal agencies to fully implement Executive Order 13175, ‘‘Consultation and 

Coordination with Tribal Governments.’’ In 2010, in response to 

calls from many tribal leaders, President Obama announced the 

United States’ support of the United Nations Declaration on the 

Rights of Indigenous Peoples (Declaration).65 The Declaration was 

initiated in 1976, primarily by American Indian leaders who 

‘‘turned to the international community principally because of the 

longstanding failure of the United States courts and federal law to 

recognize that Indian nations and other [N]ative peoples in this 

country are entitled to constitutional rights and to equality before 

the law.’’ 66 The Declaration includes numerous references to the 

right of indigenous peoples to continue their languages, cultures, 

and traditions. Support of the Declaration by the United States 

goes hand-in-hand with the United States’ commitment to address 

the consequences of the history of Native American people. As 

President Obama recognized, ‘‘few have been more marginalized 

and ignored by Washington for as long as Native Americans—our 

First Americans.’’ 67

‘‘It is time for the United States to give [Native Hawaiians] access to its best policies on Native peoples, not just the legacies of 

the worst ones.’’ 68 The federal reaffirmation of Native Hawaiian 


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mination and self-governance has proven to be the only federal policy that has worked for Native communities’’). 69 Id. 70Pub. L. No. 103–263, 108 Stat. 707 (codified at 25 U.S.C. § 476(f)–(g)). 71Memorandum from John D. Leshy, Solicitor, Office of the Solicitor, U.S. Dep’t of the Interior, to Ada E. Deer, Assistant Secretary, Office of Indian Affairs, U.S. Dep’t of the Interior 3 

(July 13, 1994). 72The Indian Reorganization Act—75 Years Later: Renewing Our Commitment to Restore Tribal Homelands and Promote Self-Determination: Hearing Before the S. Comm. on Indian Affairs, 

112th Cong. 45 (statement of Steven J.W. Heeley, Policy Consultant, Akin, Gump, Strauss, 

Hauer & Feld, LLP (noting also that this ‘‘artificial distinction represents a significant departure from the Congressional intent and purpose of the IRA and is reminiscent of the very policies of assimilation that the IRA was intended to address’’)). ‘‘Subsequent amendments to the 

IRA also addressed the category of tribes that chose not to . . . organize under IRA constitutions, and to make clear that federally recognized Indian tribes had the right to not adopt an 

IRA constitution if they so chose.’’ Id. at 46. See also H.R. Rep. No. 103–781 at 3 (1994) as reprinted in 1994 USCCAN 3768. 73Leshy, supra note 71, at 3–7 (citing the broad defmition of ‘‘tribe’’ in the Indian Civil Rights 

Act of 1968, 25 U.S.C. § 1301(1): ‘‘any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government’’). In his 

memorandum, Leshy also notes the broad defmition of ‘‘tribe’’ in many other federal statutes, 

including, Indian Land Consolidation Act, 25 U.S.C. § 2201(1); the Indian Child Welfare Act, 25 

U.S.C. § 1903(8); the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 

§ 450b(e); and the Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. 

§ 3202(10). 74The Indian Reorganization Act—75 Years Later: Renewing Our Commitment to Restore Tribal Homelands and Promote Self-Determination: Hearing Before the S. Comm. on Indian Affairs, 

112th Cong. 35–41 (June 23, 2011) (testimony of Steven Heeley, Policy Consultant, Akin, Gump, 

Strauss, Hauer & Feld, LLP (citing 25 U.S.C. § 476(f) and noting that DOI’s practice came to 

light when the Pascua Yaqui Nation of Arizona made efforts to amend their tribal constitution)). 

‘‘Strangely, although the Department was apparently making this distinction amongst tribes, it 

appears that the Department never notified the affected tribes or the Congress of their new status. Had they done so, we would have acted to correct this unauthorized arbitrary and unreasonable differentiation of tribal status long ago. . . . [O]ur amendment would void any past determination by the Department that an Indian tribe is created and would prohibit any such determinations in the future. . . . [O]ur amendment will correct any instance where any federally 

recognized Indian tribe has been classified as ‘created’ and that it will prohibit such classificasovereignty, acknowledged through the same self-governance programs that have enabled other tribes to generate revenues through 

their own business enterprises, operate court and effective law enforcement systems, and design school curricula to better meet the 

needs of Native students, would do the same for the Native Hawaiian people. The federal policy of self-determination has enabled Native nations to build strong economies, reverse decades of culture 

and language loss, and to tailor programs and services to better 

meet the needs of their people.69

Congress’ commitment to parity among all Native Americans 

Congress enunciated its policy of parity in the federal treatment 

of Native nations when it amended the IRA in 1994 in order to prohibit the Federal Government and its agencies from taking any action that ‘‘classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally 

recognized tribes by virtue of their status as Indian tribes.’’ 70

Signed into law by President Clinton on May 31, 1994, the amendments overruled prior practices of classifying tribes based on date 

of their date of recognition or manner of recognition.71 Congress 

made it clear that ‘‘if a tribe is federally recognized, they possess 

the full panoply of powers of sovereign Indian tribes unless specifically divested by treaty or Congressional action.’’ 72 ‘‘Tribe’’ was 

thus defined to include all federally recognized tribes in all federal 

statutes affecting Indian tribal governments.73

The 1994 amendments to the IRA put an end to the discriminatory practices that had been developing within the Department of 

the Interior (DOI).74 DOI began to classify tribes as either ‘‘hisVerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00014 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251

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tions from being imposed or used in the future. Our amendment makes it clear that it is and 

has always been Federal law and policy that Indian tribes recognized by the Federal Government stand on an equal footing to each other and to the Federal Government.’’ 140 CONG. REC. S6147 (daily ed. May 19, 1994) (statement of Sen. Daniel K. Inouye (D-Hawaii) (emphasis 

added). 75 ‘‘Such an artificial distinction represent[ed] a significant departure from the Congressional 

intent and purpose of the IRA and [was] reminiscent of the very policies of assimilation that 

the IRA was intended to address. . . . In enacting Public Law 103–263 [the 1994 IRA amendments], Congress rejected the artificial distinction of historic and created tribes and made clear 

that any regulation, rule or administrative decision that classifies, enhances or diminishes the 

privileges and immunities available to a federally recognized tribe relative to other tribes shall 

have no force and effect.’’ The Indian Reorganization Act—75 Years Later: Renewing Our Commitment to Restore Tribal Homelands and Promote Self-Determination: Hearing Before the S. 

Comm. on Indian Affairs, 112th Cong. 36 (testimony of Steven Heeley, Policy Consultant, Akin, 

Gump, Strauss, Hauer & Feld, LLP (citing 25 U.S.C. § 476(0)). 76Leshy, supra note 71, at 7. Leshy also noted that the 1994 amendments to the IRA were 

not ‘‘confined to the IRA,’’ but were ‘‘intended to address all instances where such categories 

or classifications of Indian tribes have been applied and any statutory basis which may have 

been used to establish, ratify, or implement the categories or classifications.’’ Id. at 3, n.3 

(quoting 140 CONG. REC. S6147 (daily ed. May 19, 1994) (statement of Sen. John McCain)). 77Sen. Daniel K. Inouye (D–Hawaii), who co-sponsored the legislation, told Congress that 

‘‘The amendment which we are offering . . . will make it clear that the Indian Reorganization 

Act does not authorize or require the Secretary to establish classifications between Indian tribes. 

. . . [I]t is and has always been Federal law and policy that Indian tribes recognized by the 

Federal Government stand on an equal footing to each other and to the Federal Government. 

. . . Each federally recognized Indian tribe is entitled to the same privileges and immunities 

as other federally recognized tribes and has the right to exercise the same inherent and delegated authorities. This is true without regard to the manner in which the Indian tribe became 

recognized by the United States or whether it has chosen to organize under the IRA. By enacting this amendment . . ., we will provide the stability for Indian tribal governments that the 

Congress thought it was providing 60 years ago when the IRA was enacted.’’ 140 CONG. REC. S6147 (daily ed. May 19, 1994). 78The history of Native Hawaiian self-governance forms the foundation for the exercise of selfgoverning authority by Native Hawaiians today, originating from the sovereignty exercised by 

Native Hawaiians prior to European and American suppression of that authority. In federal law, 

this is known as ‘‘inherent sovereignty.’’ See United States v. Wheeler, 435 U.S. 313, 320, 322– 

23 (1978). 79 Jon M. Van Dyke, supra note 31, at 95 (quoting Joint Resolution to Acknowledge the 100th 

Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103–150, 

107 Stat. 1510, 1510 (1993) [hereinafter Apology Resolution]). The Senate passed the Apology 

Resolution on Oct. 27, 1993, the House passed it on Nov. 15, 1993, and President Clinton signed 

it on Nov. 23, 1993. A joint resolution is passed by a simple majority in both houses of Congress 

and is signed by the President. 

toric,’’ and entitled to the full panoply of inherent sovereign powers 

not otherwise divested by treaty or congressional action, or ‘‘created,’’ and therefore possessing limited sovereign powers.75 By enacting the 1994 amendments and broadening the definition of 

‘‘tribe’’ in federal statutes, Congress explicitly rejected DOI’s classifications.76 The amendments ensured that DOI, as well as all other 

federal agencies, upheld the original intent of the IRA to promote 

tribal sovereignty by allowing all federally recognized tribes to organize and self-govern.77

Native Hawaiian self-governance: a brief history 

The Hawaiian Islands were isolated from outside contact for centuries before 1778, when the British explorer Captain James Cook 

arrived. The Native Hawaiian people were an independent, selfgoverning society long before contact with Europeans and Americans.78 The Native Hawaiian people thrived in a ‘‘highly organized, 

self-sufficient, subsistent social system based on communal land 

tenure with a sophisticated language, culture, and religion.’’ 79

High chiefs (ali‘nui) controlled a district of an island or an entire 

island. Local chiefs (ali‘i) controlled specific lands or resources 

(konohiki), and commoners (maka‘ainana) worked the land for the 

benefit of all. Lands were divided into parcels enclosed by boundaries that radiated from a point on a mountain top to the sea. The 

parcel was known as an ahupua ‘a, an economically self-sufficient 


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80 ‘‘The origin of the present government, and system of polity, is as follows: Kamehameha I, 

was the founder of the kingdom, and to him belonged all the land from one end of the Islands 

to the other, though it was not his own private property. It belonged to the chiefs and people 

in common, of whom Kamehameha I was the head, and had the management of the landed 

property. Wherefore, there was not formerly, and is not now any person who could or can convey 

away the smallest portion of land without the consent of the one who had, or has the direction 

of the kingdom.’’ The First Constitution of Hawaii in THE FUNDAMENTAL LAW OF HAWAII 10, 

12 (Lorrin A. Thurston ed., 1904). 81 In re Estate of Kamehameha, 2 Haw. 715, 725–6 (1864). The land considered government 

and crown lands eventually became the basis for a land trust for Native Hawaiians. See 

Newlands Resolution, J. Res. 55, July 7, 1898, § 1, 30 Stat. 750 and the Admissions Act of 1959, 

Pub. L. No. 86–3, 73 Stat. 4 (1959). 82DOCUMENTS OF UNITED STATES INDIAN POLICY 84 (Francis Prucha, ed. 2000) (noting that 

the Fort Laramie Treaty of September 17, 1851 refers to the United States and the Sioux [signatories of the treaty] as ‘‘the aforesaid nations’’). 83 ‘‘This Constitution, and the laws of the United States which shall be made in pursuance 

thereof; and all treaties made, or which shall be made, under the authority of the United States, 

shall be the supreme law of the land; and the judges in every state shall be bound thereby, 

anything in the Constitution or laws of any State to the contrary notwithstanding.’’ U.S. CONST. 

art. VI. 

tract of land, which included farmland, forest resources, fresh 

water, and access to the sea. The lands were held in common for 

the benefit of all. By 1810, not long after the first European contact, King Kamehameha I unified the Hawaiian Islands. The unified Hawaiian Kingdom preserved the communal land tenure system and created a centralized governmental with which foreign 

governments could interact. 

In 1840, acting on the advice of westerners, King Kamehameha 

III promulgated the first written constitution of the Hawaiian 

Kingdom. The constitution established the Hawaiian monarchy and 

declared that the monarchy controlled the land for the benefit of 

the chiefs and the commoners, who owned the land collectively.80

Following this formal declaration clarifying land ownership in the 

kingdom was the ‘‘Great Mahele’’ of 1848, authorizing the monarchy to divide lands between the king, the government, the ali‘i 

(chiefs), and the common people, in order to determine, and ultimately transfer, clear title. Although the Great Mahele created, for 

the first time in Hawaii’s history, an opportunity for private ownership of land, ownership was subject to the right of Native tenancy 

by those who had customarily used and occupied the lands. 

Of the approximate 4 million acres in the islands of Hawaii, the 

King, through the Great Mahele, reserved 1 million acres for himself and his royal successors, known as ‘‘crown lands’’; 1.5 million 

acres were designated as ‘‘government lands’’;81 and the other 1.5 

million acres were given to the King’s chiefs, for use by the common people, and became known as ‘‘konohiki lands.’’ 

The political relationship between the Kingdom of Hawaii and the 

United States 

The United States ratified more than 365 Indian treaties from 

1777 until 1871. These treaties evidence the government-to-government relationships between the tribes and the United States.82

Under the Constitution of the United States, United States courts 

are bound by treaties made under the authority of the United 

States and by customary international law.83 Although the United 

States has never treated the governments of its indigenous peoples 

as equal governments, it has treated them as governments. 

As the United States expanded westward, treaties became the 

primary vehicle for acquiring Indian lands. For the United States, 

treaties with America’s indigenous peoples were tools for diplomacy 


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84 Compare, e.g., U.S. Treaty with the Hawaiian Islands in 1849 with the United States’ Treaty with the Wyandot, 7 Stat. 49 (Aug. 3, 1795). The early treaties with the Native Hawaiians, 

like the treaties the United States entered into with the mainland Indian tribes during the same 

period, included a provision that declared perpetual peace and friendship. These treaties, in actuality, often provided the United States commercial gain while offering no real benefits to the 

native people. 3 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA

269–272 (Hunter Miller ed. 1933). 85 Jon M. Van Dyke & Melody K. MacKenzie, An Introduction to the Rights of the Native Hawaiian People, 10–JUL. HAW. B. J. 63, 63 (July 2006) (citing Apology Resolution, Pub. L. No. 

103–150, 107 Stat. 1510 (1993)). Between 1839 and 1852 Hawaii received formal recognition as 

a sovereign, independent national from the United States and nearly every major European nation. See Ralph S. Kuykendall, I THE HAWAIIAN KINGDOM 1–11 (1967) (citations omitted). 86 5 Stat. 643 (1843). 87S. REP. NO. 227, at 20 (1894). ‘‘Without stating the reasons for this policy, which included 

very important commercial and military considerations, the attitude of the United States toward 

Hawaii was in moral effect that of a friendly protectorate. It has been a settled policy of the 

United States that if it should turn out that Hawaii, for any cause, should not be able to maintain an independent government, that country would be encouraged in its tendency to gravitate 

toward political union with this country.’’ Id. 88S. REP. NO. 227, at 21–22 (1894). 89 ‘‘It is known and felt by the Hawaiian Government and people that their Government and 

institutions are feeble and precarious; that the United States, being so near a neighbor, would 

be unwilling to see the islands pass under foreign control. Their prosperity is continually disturbed by expectations and alarms of unfriendly political proceedings, as well from the United 

States as from other foreign powers. Their prosperity is continually disturbed by expectations 

and alarms of unfriendly political proceedings, as well from the United States as from other foreign powers. A reciprocity treaty, while it could not materially diminish the revenues of the 

United States, would be a guaranty of the good will and forbearance of all nations until the 

people of the islands shall of themselves, at no distant day, voluntarily apply for admission into 

Continued 

and acquiring land. For the American Indians, Alaska Natives, and 

Native Hawaiians, treaties were about establishing peace and 

friendship and preserving their tribal sovereignty over their homelands.84 The United States considered the Hawaiian Islands vital 

to the protection of its interests and power in the Pacific. Treaty 

relations increasingly focused on assuring commercial and military 

access. ‘‘Throughout the nineteenth century, the United States recognized the independence of the Kingdom of Hawaii; extended full 

and complete diplomatic recognition to the Hawaiian government; 

and entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 

1875, and 1887.’’ 85 These five treaties represented official recognition of sovereign status; the relationship between the Hawaiian 

Government and the Federal Government was considered to be one 

between sovereigns. On December 30, 1842, President Tyler officially recognized Hawaii as an independent nation and declared a 

policy of maintaining Hawaiian independence. In recognition of its 

independence, Congress provided an appropriation for the appointment of a United States minister to Hawaii, and in 1848, President 

Tyler assigned a minister to Hawaii.86

From the beginning of its relations with Hawaii, the United 

States sought to ‘‘prevent the absorption of Hawaii or the political 

control of that country by any foreign power.’’ 87 While the treaties 

did offer Hawaii advantageous trade relations with the United 

States, ‘‘the United States has so far interfered with the internal 

policy of Hawaii as to secure an agreement from that Government 

restricting the disposal of bays and harbors and the crown lands 

to other countries, and has secured exclusive privileges in Pearl 

Harbor of great importance to this Government.’’ 88 By the late1800s, the United States had come to view Hawaii as part of the 

American system and efforts by another foreign power to colonize 

the islands would have been regarded as acts of war against the 

United States.89


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the Union.’’ President Andrew Johnson, Fourth Annual Message to the Congress (Dec. 9, 1868). 

See also Letter from John L. Stevens, United States Minister to Hawaii, to John W. Foster, Secretary of State (Nov. 20, 1892) (in PAPERS RELATING TO THE ANNEXATION OF THE HAWAIIAN IS- LANDS TO THE UNITED STATES 184, 189 (1893) (‘‘To postpone American action many years is only 

to add to present unfavorable tendencies and to make future possession [of Hawaii] more difficult.’’)); Henry Cabot Lodge, Republican Senator from Massachusetts, Our Blundering Foreign 

Policy, in 19 THE FORUM 8, 16 (Mar.–Aug. 1895) (Mr. Lodge later became Chairman of the Senate Foreign Relations Committee (1919–1924)) (‘‘[F]or the sake of our commercial supremacy in 

the Pacific we should control the Hawaiian Islands . . . .’’). 90This group was a party of haole (‘‘white’’) businessmen that was distrustful of King 

Kalakaua, even though he signed a reciprocity treaty with the United States making it possible 

for sugar to be sold to the U.S. tax-free, in large part because of his revival of Hawaiian traditions such as the historic Hula, and construction of the royal Iolani Palace. See DOCUMENTS OF

AMERICAN DEMOCRACY: A COLLECTION OF ESSENTIAL WORKS 205 (Roger L. Kemp ed. 2010) 

[hereinafter DOCUMENTS OF AMERICAN DEMOCRACY]. 91 By forcing the adoption of the Bayonet Constitution, foreigners, primarily Americans, greatly increased their political role in Hawaii. See REMAKING QUEEN VICTORIA 142 (Margaret 

Homans & Adrienne Munich, eds., 1997) (‘‘In 1887, while Liliuokalani was attending Queen Victoria’s jubilee celebrations, the American business community revolted and her brother 

Kalakaua, then king, was forced at bayonet-point to sign a new constitution, known historically 

as the ‘Bayonet Constitution.’ This illegal document, never ratified by the people of Hawaii, ‘deprived the sovereign of all power,’ and ‘from that day the missionary party took the law into 

its own hands.’ ’’) (quoting LILIUOKALANI, HAWAII’S STORY BY HAWAII’S QUEEN 181 (1898)). The 

new constitution extended the right to vote to wealthy non-citizens (foreign resident aliens) for 

the first time, excluded Asians, and restricted access for Native Hawaiians through land-ownership and English literacy provisions. In this manner, many Americans and Europeans acquired 

full voting rights without the need for Hawaiian citizenship. Compare Hawaiian Kingdom Const. 

art. 62 (1887) (allowing for ‘‘male resident[s] of the Kingdom’’ of ‘‘American or European birth 

or descent’’ who can ‘‘read and write the Hawaiian, English or some European language’’ the 

right to vote for their district Representative), with Hawaiian Kingdom Const. art. 62 (1864) 

(allowing ‘‘male subject[s] of the Kingdom, who . . . know how to read and write’’ the right to 

vote for their district Representative) (emphasis added). 92DOCUMENTS OF AMERICAN DEMOCRACY, supra note 90, at 205. 93 Id. The Committee of Safety, under the leadership of Sanford B. Dole, was also known as 

the ‘‘Committee of Public Safety,’’ the ‘‘Committee on Annexation,’’ or the ‘‘Annexation Club.’’ 

The Committee of Safety consisted of thirteen men, ‘‘all foreigners and some of brief residence 

in the country.’’ H.R. Exec. Doc. No. 47, 53d Cong., 3d Sess. 353 (1893) (emphasis in original). 

The United States’ illegal overthrow of the Kingdom of Hawaii allowed for Hawaii’s annexation 

In 1887, an opposition group of mostly Americans pressed for the 

adoption of a constitution that would reduce the king to a ceremonial figurehead.90 King Kalakaua, in power at the time, unsuccessfully sought the protection of the United States from this powerful 

group. The opposition used the threat of violence to force King 

Kalakaua to accept a new constitution that stripped the monarchy 

of executive powers and replaced his cabinet with members of the 

opposition group. The new constitution, signed by King Kalakaua 

under duress, became known as the Bayonet Constitution, and it 

effectively disenfranchised most Native Hawaiian voters.91

Under the 1887 Constitution, the King was deprived of his power 

and the United States-dominated cabinet and legislature became 

increasingly more influential. King Kalakaua moved to restore his 

power, but all attempts were unsuccessful. The constant presence 

of American military forces in Hawaii helped to discourage his efforts. When King Kalakaua died in 1891, his sister Lili‘uokalani 

succeeded him, and members of the Native population persuaded 

the new queen to draft a new constitution in an attempt to restore 

Native rights and powers.92 Queen Lili‘uokalani’s proposed constitution was opposed by a group calling themselves the Committee 

of Safety, a small group of mostly American businessmen and politicians who felt that annexation by the United States, the major 

importer of Hawaiian agricultural products, would be beneficial for 

the economy of Hawaii.93 With strong encouragement from Washington, D.C., and the assurances of support from the United States 

minister, John L. Stevens, the Committee of Safety conspired to 


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94Stevens, an avowed annexationist, was the United States Department of State Minister to 

the Kingdom of Hawaii in 1893. See Pub. L. No. 103–150, 107 Stat. 1510 (1993) (acknowledging 

the illegal actions of Minister Stevens and the United States). 95 Although the stated reason for the military invasion was to protect the U.S. consulate and 

the lives and property of American citizens, the troops took up a position between the queen’s 

palace and the government building, allowing the insurrectionists to take over occupation of the 

buildings. ‘‘[W]hen Hawaiian leaders stopped accommodating [Anglo-American interests], they 

met with American force.’’ Berger, supra note 55, at 1195. 96The Proceedings and Debates of the Fifty-Third Congress, Second Session, 26 CONG. REC. 311 (1893) (‘‘Thus it appears that Hawaii was taken possession of by the United States forces 

without the consent or wish of the government of the islands, or of anybody else so far as shown, 

except the United States Minister.’’). 97WASHINGTON GOVERNMENT PRINTING OFFICE, PAPERS RELATING TO THE ANNEXATION OF

THE HAWAIIAN ISLANDS TO THE UNITED STATES 22 (1893). 98Queen Lili‘uokalani had not yet surrendered when Minister Stevens recognized the Provisional Government on behalf of the United States. The United States’ recognition of the Provisional Government may have influenced Lili‘uokalani’s decision to surrender in 1893: ‘‘Now to 

avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States 

shall, upon facts being presented to it, undo the action of its representatives and reinstate me 

in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.’’ Letter 

from Queen Lili‘uokalani to Sanford B. Dole, Esq., (Jan. 17, 1893). Protesting the annexation 

of Hawaii, the Queen later wrote, ‘‘I yielded my authority to the forces of the United States in 

order to avoid bloodshed, and because I recognized the futility of a conflict with so formidable 

a power.’’ Letter from Queen Lili‘uokalani to William McKinley, President of the United States 

(June 17, 1897). 99President’s Message Relating to the Hawaiian Islands, H.R. Exec. Doc. No. 47, 53d Cong., 

2d Sess., at XVI (1893) (commonly referred to as the Report of the Commissioner to the Hawaiian Islands or the Blount Report). The Blount Report was conducted by Commissioner James 

H. Blount, who was appointed by President Cleveland to impartially investigate the events surrounding the January 1893 overthrow of the Kingdom of Hawaii. Blount concluded that the 

United States diplomatic and military representatives had abused their authority and were responsible for the change in government—all in violation of international law. International law 

deems acts of state officials and representatives as acts of the state for purposes of determining 

international responsibility. Thus, Minister Stevens’ actions, although not directed by the Department of the State or the President, would be the responsibility of the United States. Blount 

also discovered that many Native Hawaiians were forced to sign the petition for annexation by 

storekeepers and others in exchange for food and other necessities. Id. at 354. As a result of 

this investigation, Stevens was recalled from his diplomatic post. 100The Proceedings and Debates of the Fifty-Third Congress, Second Session, 26 CONG. REC. 311 (1893). President Cleveland called the United States’ role in the overthrow of Hawaii ‘‘an 

act of war.’’ Id (‘‘[B]ut for the lawless occupation of Honolulu under false pretexts by the United 

States forces, and but for Minister Stevens’ recognition of the provisional government when the 

United States forces were its sole support and constituted its only military strength, the Queen 

and her Government would never have yielded to the provisional government, even for a time 

and for the sole purpose of submitting her case to the enlightened justice of the United States.’’). 101The Proceedings and Debates of the Fifty-Third Congress, Second Session, 26 CONG. REC. 

312 (1893). 

overthrow the monarchy.94 Following Stevens’ orders, American 

troops landed in Honolulu on January 16, 1893.95

Within twenty-four hours of the American troops landing, and 

before the takeover of the Hawaiian government was complete, Stevens, without permission from the U.S. State Department,96 recognized the Committee of Safety as the new ‘‘Provisional Government,’’ ‘‘the de facto government of the Hawaiian Islands.’’ 97 On 

January 17, 1893, Queen Lili‘uokalani abdicated her authority, but 

did so only under protest 98 and subject to a later review of the situation by the American government. The United States military 

then took custody of the government building. 

A presidential investigation of the overthrow revealed facts that 

led President Grover Cleveland to call for restoration of the monarchy.99 In a message to Congress, the President observed that the 

overthrow was not ‘‘by the people of the islands,’’ but rather that 

‘‘the Provisional Government owes its existence to an armed invasion by the United States.’’ 100 He concluded that the United States’ 

role was in opposition to established American foreign policy, to 

morality, and to principles of international law.101 Consequently, 

he stated that the United States ‘‘cannot allow itself to refuse to 


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102 Id. 103DATA BOOK, supra note 8, at 412. 104 Berger, supra note 55, at 1195 (citations omitted). 105Presumably, Native Hawaiian children would not have signed the petition. In the 1896 

Census, there were 15,018 Native Hawaiian children (ages 0–15). This means that there were 

only 3,217 eligible Native Hawaiians who did not sign the anti-annexation petition. Department 

of Public Instruction, Report of the General Superintendent of the Census, 1896, at 54, table 

VIII (1897). 106On February 27, 1898, after the Hawaiian delegation, which included Lili‘oukalani, presented the petition against annexation to the Senate, there were only 46 senators willing to vote 

for annexation. The treaty was thus defeated in the Senate. 107On February 15, 1898, the U.S. Battleship Maine was blown up in Havana harbor in Cuba. 

redress an injury inflicted through an abuse of power by an officer 

clothed with its authority and wearing its uniform; the United 

States cannot fail to vindicate its honor and its sense of justice by 

an earnest effort to make all possible reparation.’’ 102 President 

Cleveland refused to annex Hawaii to the United States, and in 

1894, ‘‘[m]embers of the provisional government declare[d] themselves the ‘Republic of Hawaii’ and wait[ed] for a better opportunity 

to seek annexation.’’ 103

The overthrow of Queen Lili‘uokalani and imposition of the Republic of Hawaii was contrary to the will of the Native Hawaiians. 

Native Hawaiians staged mass protest rallies and formed two 

groups to protest the overthrow and prevent annexation. One was 

the Hui Hawaii Aloha Aina, loosely translated as the Hawaiian Patriotic League, and the other was its female counterpart, the Hui 

Hawaii Aloha Aina o Na Wahine. On January 5, 1895, the protests 

took the form of an armed attempt to derail annexation but the 

armed revolt was suppressed by forces of the Republic. The leaders 

of the revolt were imprisoned along with Queen Lili‘uokalani who 

had been jailed for failing to put down the revolt. 

Cleveland’s successor, President McKinley, ran for office in 1896 

on a pro-annexation platform, arguing that even though most residents of the islands were either Native Hawaiian or Asian, they 

were under the control of the superior American minority, and annexation was necessary to prevent a Japanese takeover.104 In 

March of 1897, William McKinley was inaugurated as President of 

the United States. McKinley was in favor of annexation, and the 

change in leadership was soon felt. On June 16, 1897, McKinley 

and three representatives of the government of the Republic of Hawaii signed a treaty of annexation. President McKinley then submitted the treaty to the United States Senate for ratification. 

The Hui Hawaii Aloha Aina protest groups organized a mass petition drive. They hoped that if the United States government realized that the majority of Native Hawaiian citizens opposed annexation, the move to annex Hawaii would be stopped. Between September 11 and October 2, 1897, the two groups collected petition 

signatures on each of the five principal islands of Hawaii. The petition, clearly marked ‘‘Petition Against Annexation’’ and written in 

both the Hawaiian and English languages, was signed by 21,269 

Native Hawaiian people—nearly every adult and more than half of 

the 39,504 Native Hawaiians reported by the census for the same 

year.105

The petition helped to defeat the proposed annexation treaty in 

1898.106 However, other events immediately brought the subject of 

annexation up again.107 With the ensuing Spanish-American War, 

part of which was fought in the Philippine Islands, proponents of 

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108 Berger, supra note 55, at 1195. The annexation of Hawaii reveals the same denigration 

of indigenous interests found throughout American Indian history. Id. 109See An Act to Provide for a Government for the Territory of Hawaii, 31 Stat. 141, 56 Cong. 

Sess. 1 (April 30, 1900). 110 Van Dyke & MacKenzie, supra note 85, at 63 (citing the Newlands Resolution and Organic 

Act). 111 Id. at 63–64 (citations omitted). 112See discussion supra p. 17. 113Pub. L. No. 103–150, 107 Stat. 1510 (1993). 

tion as a mid-Pacific fueling station and naval installation. The 

pro-annexation forces in Congress submitted a proposal to annex 

the Hawaiian Islands by joint resolution, which required only a 

simple majority vote in both chambers. This eliminated the twothirds majority needed, and, as a result, the necessary support was 

in place. In July 1898, a joint resolution passed control of Hawaii 

to the United States. House Joint Resolution 259, 55th Congress, 

2nd session, known as the ‘‘Newlands Resolution,’’ passed Congress, and was signed into law by President McKinley on July 7, 

1898. Amidst the fervor surrounding the Spanish American War, 

President McKinley thus secured the political domination of the 

territory of Hawaii and the appropriation of its lands.’’ 108

Upon annexation, control of the crown and government lands 

passed from the Republic of Hawaii to the United States. 

Through the 1898 Joint Resolution and the 1900 Organic 

Act,109 the United States received 1.8 million acres of 

lands, formerly Crown and Government Lands under the 

Hawaiian Kingdom, and exempted these lands from the 

existing public laws of the United States by mandating 

that the revenue and proceeds from these lands be ‘‘used 

solely for the benefit of the inhabitants of the Hawaiian Islands for education and other public purposes.’’ 110

This public trust established a special trust relationship between 

the United States and the inhabitants of Hawaii, similar to the 

trust relationship between the Federal Government and Indian 

Tribes, by imposing fiduciary responsibilities on the United States 

and constraining the use, management, and proceeds generated 

from the trust to public purposes.111 This meant that 1.8 million 

acres in which the Native Hawaiian people were to have interest 

following the Great Mahele 112 became United States property. 

Hawaii’s transition from a foreign nation to domestic dependent 

Native nation 

At the time of annexation, the political and legal relationship between the Native Hawaiian people and the United States changed 

from interacting as two independent nations through treaties to 

one of relating to the Native Hawaiian people as a domestic dependent Native nation. As is noted in Public Law 103–150, the 

Apology Resolution, ‘‘the indigenous Hawaiian people never directly 

relinquished their claims to their inherent sovereignty as a people 

or over their national lands to the United States, either through 

their monarchy or through a plebiscite or referendum.’’ 113

Hawaii was designated as a non-self-governing territory of the 

United States from 1898 to 1959. During that time, the United 

States allowed citizenship for all persons living in the Hawaiian Islands, greatly expanding the number of non-Native Hawaiian citizens beyond what had been allowed by the Kingdom of Hawaii. AlVerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251

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114 At the time of the overthrow, only those born in Hawaii were considered citizens. See, e.g., 

I Statute Laws of Kamehameha III, p. 76, § III (1846); Letter from Ferdinand Hutchison, Minister of the Interior for the Hawaiian Kingdom, to H.H. Parker, regarding the determination 

of his citizenship status, published in the HAWAIIAN GAZETTE (official publication of the Government of the Kingdom), at 2 (Jan. 21, 1868). At the time of the overthrow of the Kingdom of 

Hawaii, less than 10 percent of foreigners were actually born in Hawaii. 1 NATIVE HAWAIIANS

STUDY COMMISSION: REPORT ON THE CULTURE, NEEDS AND CONCERNS OF NATIVE HAWAIIANS

PURSUANT TO PUBLIC LAW 96–565, TITLE III, at 68, table 3 (Jun. 23, 1983). 115 1 NATIVE HAWAIIANS STUDY COMMISSION: REPORT ON THE CULTURE, NEEDS AND CONCERNS

OF NATIVE HAWAIIANS PURSUANT TO PUBLIC LAW 96–565, TITLE III, at 69, table 4 (Jun. 23, 

1983). The Organic Act extended citizenship to all residents of Hawaii, even those who were 

born elsewhere. An Act to Provide for a Government for the Territory of Hawaii, 31 Stat. 141, 

56 Cong. Sess. 1 (April 30, 1900). 116 ‘‘Even this statement has been challenged, because the only options offered to the people 

of Hawaii were (1) to become a state or (2) to remain a territory. Some have argued that the 

resolutions of the United Nations General Assembly . . . require that nonself-governing peoples 

be given the additional options of complete independence and free associated state status.’’ Jon 

M. Van Dyke, Carmen Di Amore-Siah, & Gerald W. Berkely-Coats, Self-Determination for 

Nonself-Governing Peoples and for Indigenous Peoples: The Cases of Guam and Hawaii, 18 U. 

HAW. L. REV. 623, 624 n. 3 (1996) (referring to Declaration on the Granting of Independence 

to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 

66, U.N. Doc. A/4684 (1960); G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, Annexes, Agenda Item No. 38, at 9, U.N. Doc. A/4684 (1960)). 117 Van Dyke, Di Amore-Siah, & Berkely-Coats, supra note 116, at 624–25. 118Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 

658, 664 (1979) (citations omitted). See also, United States v. John, 437 U.S. 634 (1978), where 

the Court upheld Congress’s power to provide for a group of Indians that did not have a federally-recognized tribal government, because federal supervision had lapsed. 119 Johnson v. M‘Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823); Cherokee Nation v. Georgia, 30 

U.S. (5 Pet.) 1, 45 (1831). 120 United States v. Antelope, 430 U.S. 641, 646 (1977) (quoting Morton v. Mancari, 417 U.S. 

535, 553 n. 24 (1974)). 

though Native Hawaiians made up less than half the resident population in Hawaii at the time of the overthrow, they were more 

than 80 percent of the Kingdom’s citizenry.114 After Annexation, 

the Native Hawaiian percentage of the citizenry of the territory 

was less than 25 percent.115 ‘‘[T]he residents of the Hawaiian Islands exercised their right to self-determination in 1959 when they 

voted to become a state,116 and they are now a self-governing political community. But the Native Hawaiian population has never 

had an opportunity to exercise its separate right to self-determination and to reestablish itself as self-governing autonomous [N]ative 

nation.’’ 117

The fact that the indigenous Native Hawaiian community does 

not presently have an operating tribal government recognized by 

the Department of the Interior (DOI) does not remove that community from the scope of Congress’s Indian affairs power. The Constitution does not limit Congress’ Indian affairs power to indigenous groups with a particular government structure. ‘‘[S]ome bands 

of Indians, for example, had little or no tribal organization while 

others . . . were highly organized.’’ 118 Nor does the Constitution 

limit Congress’s power to groups that continue to exercise all aspects of sovereignty. European ‘‘discovery’’ and the establishment of 

the United States necessarily diminished certain aspects of Indian 

sovereignty.119 Thus, under the Constitution, ‘‘[f]ederal 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.’ ’’ 120


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121 Estimates of the Native Hawaiian population prior to the arrival of Captain James Cook 

in 1778 range from 300,000 to 800,000. By 1850, the population dropped to 84,165, and by 1872, 

it dropped even further to 56, 897. Van Dyke, supra note 31, at 95. 122When Hawaii became an American territory in 1900, the Native Hawaiian language and 

cultural practices were discouraged. See LILIKALA KAME‘ELEIHIWA, NATIVE LAND AND FOREIGN

DESIRES: PEHEA LA E PONO AL 316 (1992); Van Dyke, supra note 31, at 103 n.50. 123 An Act to Provide for a Government for the Territory of Hawaii, 31 Stat. 141, 56 Cong. 

Sess. 1 (April 30, 1900). The Organic Act established the government for the Territory of Hawaii. Prior to Hawaii’s statehood, the Territorial Government was responsible for implementing 

the HHCA. The Territorial Government often provided leases to sugar planters on the 203,500 

acres while failing to provide the land for Native Hawaiian homesteads. After Hawaii became 

a state, the Department of Hawaiian Home Lands (DHHL) took over that responsibility. DHHL 

has also not administered the Act well, and this has sparked intense criticism. 124DATA BOOK, supra note 8, at 189, Table 2.48. See discussion supra, pp. 3–5. 125The Kingdom of Hawaii was overthrown and annexed during the Allotment & Assimilation 

Era of Federal Indian Law (1871–1928). The United States did not identify Native Hawaiians 

as a separate political entity because it would have been inconsistent with federal Indian policy. 

During this period, the United States attempted to rid American Indians and Alaska Natives 

of their native languages and culture. The HHCA was an allotment-era policy and was enacted 

when Congress still thought that ‘‘civilizing’’ the indigenous peoples required destruction of their 

autonomy and their identification as a separate political identity. In 1928, the Merriam Report 

revealed the devastating effects of the Indian General Allotment Act (GAA) (25 U.S.C. §§ 331 

to 334, 339, 341, 342, 348, 349, 354, and 381 (1887) (§§ 331 to 333 repealed)) and it became 

clear that the United States needed to change its policies towards tribal governments. In response to the Merriam Report, Congress passed the Indian Reorganization Act in 1934 (IRA) 

(25 U.S.C. §§ 461–479 (1934)) as a remedy for its prior allotment practices. The IRA repudiated 

the policy of allotment and allowed tribes to adopt constitutions and to reestablish structures 

for tribal governance. Tribal sovereignty was now to be encouraged rather than destroyed. 126Popularly known as the ‘‘Indian’’ General Allotment Act (GAA) (25 U.S.C. §§ 331 to 334, 

339, 341, 342, 348, 349, 354, and 381 (§§ 331 to 333 repealed)). This Act stated that Indians 

who received land allotments or voluntarily took up residence away from their tribes were to 

be given United States citizenship. 127 34 Stat. 182 (1906). The Burke Act amended section 6 of the GAA, by postponing the acquisition of citizenship until the end of the trust period, typically twenty-five years, or until the 

allottee received a patent in fee from the Secretary of the Interior. 128 42 Stat. 108 (1921). This Act is now part of Hawaii’s State Constitution. See Haw. Const. 

art. XII. The HHCA was remarkably similar in purpose and effect to the General Allotment Act 

(GAA), 25 U.S.C. §§ 331 to 334, 339, 341, 342, 348, 349, 354, and 381 (1887) (§§ 331–333 repealed), which destroyed tribalism and assimilated Indians as individuals into the dominant society. The GAA took collectively owned tribal lands and allotted parcels to individual tribal 

members. The surplus lands, lands not allotted to individual tribal members, was then sold to 

Continued 

The Hawaiian Homes Commission Act of 1921 

By the time Hawaii was annexed as a territory to the United 

States in 1898, the Native Hawaiian population had plummeted,121

its traditional practices 122 and the communal land tenure system 

had been forcibly replaced by European and American models of 

ownership, the Kingdom of Hawaii had been illegally overthrown, 

and Hawaiian lands had been taken without the consent of the Native Hawaiian people. Two years later, Congress entrusted management of the lands to a territorial legislature established by the Organic Act of 1900.123 These lands are referred to as the ‘‘Ceded 

Lands’’ or the ‘‘Public Lands Trust.’’ As a result of losing their 

homelands, the Native Hawaiian people found themselves at the 

bottom of the socio-economic scale in their own land.124

During this time, federal Indian policies were focused primarily 

on the allotment and assimilation of the Native people.125 The two 

prevailing laws of this era were the Dawes Act 126 and Burke 

Act.127 These two acts sought to provide eligible Indians with allotments of lands for residential, ranching, and agricultural purposes, 

with the hope of hastening the assimilation process. Through these 

federal allotment and assimilation practices, Congress attempted to 

address the deteriorating social and economic conditions among the 

Native people by returning them to their land. 

Passed in 1921, the Hawaiian Homes Commission Act 

(HHCA) 128 was modeled after these Acts, as it too recognized the 


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non-Indians. Both the HHCA and the GAA were poorly carried out, often giving their beneficiaries parcels of useless, inarable land. 129 Van Dyke & MacKenzie, supra note 85, at 64 (citing Act of July 9, 1921, ch. 42, 42 Stat. 

108). 130 Id. (citing Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161, 

1162 (1982), ‘‘in which the Hawaii Supreme Court found that the purpose of the HHCA was 

to rehabilitate Native Hawaiians. The court drew on language in the legislative history of the 

HHCA to conclude that there was ‘an intent to establish a trust relationship between the government and Hawaiian persons.’ ’’). 131 Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. 

Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Melody Mackenzie, Associate Professor of Law and Director of Ka Huhi Ao Center for Excellence in Native Hawaiian 

law at University of Hawaii, Richardson School of Law). 132 Id (statement of Sen. Brickwood Galuteria, Majority Leader, Hawaii State Capitol). 133 Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. 

Comm. on Indian Affairs, 112th Cong. (Apr. 2012) (statement of Colleen Hanabusa, Rep., U.S. 

House of Representatives) (noting that the HHCA was critical to preserve the Native Hawaiian 

people and culture). 134 H.R. Rep. No. 839, 66th Cong., 2d Sess. 4 (1920). The House Committee Report on the 

HHCA defended the bill against the charge that it was ‘‘unconstitutional class legislation’’ by 

noting that Congress had the authority to provide special benefits for unique groups such as 

‘‘Indians, soldiers and sailors.’’ Half a century later, the United States Supreme Court would 

address constitutional arguments to uphold legislation benefitting Indians as a group in Morton 

v. Mancari, 417 U.S. 535, 553 n.24, 554 (1974) (holding that Indian status was ‘‘political rather 

than racial in nature’’ because tribal Indians were ‘‘members of quasi-sovereign tribal entities’’). 

The Court determined that the employment preference for Indians in the Bureau of Indian Affairs was not impliedly repealed by the Equal Employment Opportunities Act of 1972, and that 

the preference did not constitute invidious racial discrimination but was reasonable and rationally designed to further Indian self-government. Id. The Supreme Court was careful to note, 

however, that [Mancari] was confined to the authority of the BIA, an agency described as ‘‘sui 

generis.’’ Rice v. Cayetano, 528 U.S. 495, 520 (2000) (quoting Mancari, 417 U.S. at 554) (emphasis in original). ‘‘Thus while Native Hawaiian classifications do not automatically come within 

the safe harbor Mancari provides for American Indian classifications, equal protection challenges regarding Native Hawaiians implicate similar questions and should be analyzed under 

similar principles.’’ Berger, supra note 55, at 1193. 

deteriorating conditions of the Native Hawaiian people 129 and 

sought to rehabilitate Hawaii’s indigenous peoples by setting aside 

203,500 acres of ceded lands for a homesteading program to provide residences, farms, and pastoral lots for native Hawaiians,130

and returning Native Hawaiians to their ancestral lands, allowing 

them to take up homesteading on specified lands and reestablish 

a traditional Hawaiian way of life.131 ‘‘The Hawaiian Homes Commission Act is a clear example of federal policies towards Native 

peoples that have consistently been applied to Native Hawaiians, 

not always at exactly the same time, but often closely afterwards.’’ 132

Having learned from the devastating consequences that resulted 

from American Indians losing most of their lands as a result of the 

Dawes Act, Congress, through enactment of the HHCA, created a 

federal land trust that provided for 99-year leases to qualified Native Hawaiians. These long-term leases ensured that the trust 

lands would benefit the Native Hawaiian people for generations. 

With passage of the HHCA, Congress began to enact measures to 

remedy the Native Hawaiian people’s plight resulting from the loss 

of their home lands and culture.133

By developing the HHCA, executive branch and congressional 

leaders were under the impression that the Federal Government 

was assuming trust responsibilities similar to those it had historically exercised in managing Indian affairs. In hearings on the legislation, the Secretary of the Interior, Franklin K. Lane, testified, 

‘‘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.’’ 134


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135Proposed Amendments to the Organic Act of the Territory of Hawaii: Hearings Before the 

H. Comm. on the Territories, 66th Cong. 129–31 (statement of Secretary Lane that ‘‘[w]e have 

got the right to set aside these lands for this particular body of people, because I think the history of the islands will justify that before any tribunal in the world,’’ rejecting the argument 

that legislation aimed at ‘‘this distinct race’’ would be unconstitutional because ‘‘it would be an 

extension of the same idea’’ as that established in dealing with Indians, and citing a Department 

of the Interior Solicitor’s opinion stating that setting aside public lands within the Territory of 

Hawaii would not be unconstitutional, relying in part on the Congressionally authorized allotment to Indians as precedent for such an action); see also id. at 127 (colloquy between Secretary 

Lane and Representative Monahan, analogizing status of Native Hawaiians to that of Indians); 

T3id. at 167–170 (colloquy between Rep. Curry, Chair of the Committee, and Reps. Dowell and 

Humphreys, making the same analogy and rejecting the objection that ‘‘we have no government 

or tribe to deal with here’’). 136 Id. at 129–31. 137 59 CONG. REC. 7453 (1920). 138 H.R. Rep. No. 66–839. at 5 (1920). 139 H.R. Rep. No. 66–839, at 11 (1920); see also id. at 4 (suggesting that the HHCA was enacted in part because, after the arrival and settlement of foreigners in Hawaii, the Native Hawaiians had been ‘‘frozen out of their lands and driven into the cities,’’ where they were ‘‘dying’’ 

as a people). 140 H.R. Rep. No. 66–839, at 6–7 (1920). 

141 Although Hawaii became a state, the Native Hawaiian people never surrendered their 

right to self-governance. ‘‘Native Hawaiians were never consulted or given an opportunity to 

Continued 

Secretary Lane explained that special programs for Native Hawaiians are fully supported by history and ‘‘an extension of the 

same idea’’ that supports such programs for other Indians.135

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

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

of Representatives as follows: 

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

Hawaiians is to rehabilitate them. I believe that we should 

get them on lands and let them own their own homes . . . 

The Hawaiian people are a farming people and fishermen, 

out-of-door people, and when they were frozen out of their 

lands and driven into the cities, they had to live in the 

cheapest places, tenements. That is one of the big reasons 

why the Hawaiian people are dying. Now, the only way to 

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

and give them the mode of living that their ancestors were 

accustomed to and in that way rehabilitate them.136

In 1920, Prince Kuhio, the Territory’s sole delegate to Congress, 

testified before the full U.S. House of Representatives: ‘‘[I]f conditions continue to exist as they do today . . . my people . . . will 

pass from the face of the earth.’’ 137 Secretary Lane attributed the 

declining population to health problems similar to those faced by 

the ‘‘Indian in the United States’’ and concluded that the Nation 

must provide similar remedies.138

Congress compared the HHCA to ‘‘previous enactments granting 

Indians . . . special privileges in obtaining and using the public 

lands.’’139 In support of the Act, the House Committee on the Territories recognized that, prior to the Great Mahele, Native Hawaiians had a one-third interest in the lands of the Kingdom. The 

Committee reported that the HHCA was necessary to address the 

way Native Hawaiians had been short-changed in prior land-distribution schemes.140

The history of federal Indian policy establishing reservations was 

also in the minds of the Congressmen who voted for the HHCA. 

Recognizing that the Native Hawaiian people were deprived of 

their lands without their consent,141 the Chairman of the House 


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vote on whether incorporation into the United States was desirable.’’ Native Hawaiian Rights 

Handbook 97 (Melody Kapilialoha MacKenzie, ed., 1991). See Worcester v. Georgia, 31 U.S. 

515,520 (1832) (‘‘[T]he settled doctrine of the law of nations is, that a weaker power does not 

surrender its independence—its right to self-government, by associating with a stronger, and 

taking its protection. A weak state, in order to provide for its safety, may place itself under the 

protection of one more powerful, without stripping itself of the right of government, and ceasing 

to be a state.’’). 142Proposed Amendments to the Organic Act of the Territory of Hawaii, Hearings on HR. 7257 

Before the H. Comm. on the Territories, 67th Cong. 1st Sess. 141 (June 9 & 10, 1921) (statement 

of Charles F. Curry, Chairman, H. Comm. on the Territories). 143The HHL Trust was designated from the 1.8 million acres of land that became United 

States property upon the annexation of Hawaii. See supra p. 25. From the 1.8 million acres, 

the United States reserved 400,000 acres for its use. The 1.2 million acres remaining became 

the public land trust. The public land trust was ceded to the State of Hawaii for five specified 

purposes, including ‘‘for the betterment of the conditions of native Hawaiians, as defined in the 

Hawaiian Homes Commission Act.’’ See infra note 151. In doing so, Congress delegated to the 

State of Hawaii the trust responsibility owed to the Native Hawaiians. 144 ‘‘[I]n many ways we’re back in the same situation we were in 1920 with people coming 

to Congress basically saying our people are dispossessed from their lands. They’re dying. They 

don’t have a place to live. And we’re in that same situation. So I see this S. 65 as an opportunity 

to really fulfill the promise of the Hawaiian Homes Commission Act.’’ Hawaiian Homeownership 

Act of 2011: Oversight Field Hearing on S. 65 Before the S. Comm. on Indian Affairs, 112th 

Cong. (Apr. 13, 2012) (statement of Melody Mackenzie, Associate Professor of Law & Director, 

Ka Huli Ao Center for Excellence in Native Hawaiian Law, University of Hawaii Richardson 

School of Law, University of Hawaii at Manoa). 145 Id. (statement of Michelle Kauhane, Deputy Director, State of Hawaii, Department of Hawaiian Home Lands). 146 Id. 

Committee on Territories noted that the motivations behind the 

legislation were the same as those supporting similar land trust 

legislation relating to Indian tribes: 

The United States Government has supported [the Indians] and helped them along; now they are in such a position that they can take care of themselves. And we can do 

that for the Indians. Why? Because we came to this country and took their land away from them, and treaty after 

treaty has been violated. And if we can afford to do that 

for the Indians—and we have done it and it is constitutional—why can we not do the same for the Hawaiians 

whose land has been taken away from them? 142

Under the HHCA, Congress designated a trust of 203,500 acres 

of public lands to be available for Native Hawaiian homesteads 

(Hawaiian Home Lands Trust or HHL Trust).143 However, similar 

to other federal policies enacted to remedy the effects of the loss 

of land on American Indians and Alaska Natives of this era, the 

HHCA has generally failed to provide agricultural or residential 

lands or to achieve its lofty goal of rehabilitating the Native Hawaiian people.’’ 144 The lands set aside as part of the HHL Trust 

were some of the poorest, largely unsuitable for farming, and lacking in necessary irrigation water. 

It has been over 90 years since the enactment of the HHCA and 

only approximately 10,000 land leases have been issued to Native 

Hawaiian beneficiaries for homesteading purposes.145 ‘‘[T]he 

waitlist of individual applicants to receive a land award under the 

[HHCA] exceeds 26,000 individuals, with waiting times ranging 

from five years to 50 years.’’ 146

Statehood and the delegation offederal trust responsibilities to the 

State of Hawaii 

When the State of Hawaii was admitted into the Union in 1959, 

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147This was during the era known as Termination in Federal Indian Policy (1945–1961). During Termination, federal policies attempted to end the Indians’ status as wards of the United 

States by forcing the assimilation of all America’s indigenous peoples. H.R. Con. Res. 108, 83rd 

Cong., 1st Sess., 67 Stat. B132 (1953). By the 1970s, Congress once again changed its course, 

rejecting such policies of assimilation and termination and promoting tribal self-determination. 

See, e.g., Indian Self-Determination and Education Assistance Act, Pub. L. 93–638, 88 Stat. 2214 

(codified at 25 U.S.C. 458–458(e)). 148 67 Stat. 5884 (1953). 149Section 223 of the HHCA, Act of July 9, 1921, 42 Stat. 108 (1920), codified in Haw. Const., 

Art. XII § 1. 150 Hawaii Admission Act, 5(f), Pub. L. No. 86–3, 73 Stat. 4 (1959). 151 Id. (declaring the purposes of the public trust to be: (1) for the support of the public 

schools; (2) for the betterment of the conditions of native Hawaiians, as defined by the Hawaiian 

Homes Commission Act, as amended; (3) for the development of farm and home ownership on 

as widespread basis as possible; (4) for the making of public improvements; (5) and for the provision of lands for public use). The language of trust in the Act arguably reflects a continuing 

interest of Hawaiian people in the 5(f) lands transferred to the state by the United States. This 

would give rise to a claim for income from the lands or for the value of lands the state has 

appropriated to its own uses. 152 Hawaiian Admission Act, sec. 5(f), Pub. L. No. 86–3, 73 Stat. 4 (1959). 153 Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. 

Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Melody Mackenzie, Associate Professor of Law and Director of Ka Huli Ao Center for Excellence in Native Hawaiian 

law at University of Hawaii, Richardson School of Law). 154 Id. (statement of Sen. Brickwood Galuteria, Majority Leader, Hawaii State Capitol). 155 Id. (statement of Richard Naiwieha Wurdeman, President, Native Hawaiian Bar Association). 

the Indian tribes and their members and to transfer many of those 

responsibilities to the several states.147 A prime example of this 

federal policy was the enactment of Public Law No. 83–280, an Act 

which vested criminal jurisdiction and certain aspects of civil jurisdiction over Indian lands in certain states.148 Similarly, in 1959 

and as a condition of statehood, the United States transferred responsibilities related to administering the HHCA to the new State 

of Hawaii, while explicitly retaining the authority to alter, amend 

or repeal the HHCA.149 In the Hawaii Admission Act, the United 

States delegated its principal responsibilities under the HHCA to 

the new state.150 As a further condition of statehood, the United 

States imposed a public trust on lands ceded to the State of Hawaii 

for five purposes, one of which was the ‘‘betterment of the conditions of native Hawaiians.’’ 151 The Act says that departure from 

the prescribed purposes is a breach of trust.152 The Admission Act 

makes clear that the United States anticipated that the State of 

Hawaii’s constitution and laws would provide for the manner in 

which the HHCA and the public trust would be administered. 

‘‘While the State of Hawaii has administrative and rulemaking 

authority, the Federal Government retains oversight to ensure that 

the original intent of the Act is maintained.’’ 153 This supervisory 

role of the United States demonstrates the existence of a trust relationship between the United States and the Native Hawaiian community. ‘‘[T]he State of Hawaii has embraced its role in managing 

the Hawaiian Home Lands trust, and continues to support efforts 

to enhance [the] self-determination and self-governance [of the Native Hawaiian people].’’ 154

That the special requirements of the Admissions Act have not 

been fully observed by the state is well established. ‘‘[D]espite the 

legal obligations and responsibilities, [Native Hawaiians] have always . . . been in the lessor priority when there have been other 

needs for the community.’’ 155 At Hawaii’s 1978 constitutional convention, this led to proposals for three constitutional amendments 

that were accepted and adopted by voters. The result was the establishment of the State of Hawaii Office of Hawaiian Affairs 


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156 Haw. Const., art. XII, §§§ 4–6 (1978). 157 Rice v. Cayetano, 528 U.S. 495, 528 (2000) (Stevens, J., dissenting). 158 Apology Resolution, Pub. L. No. 103–150, 107 Stat. 1510 (1993). 159 Id. 160Daniel Akaka, United States Senator for Hawaii, Newsroom, Statements and Speeches, Remarks of U.S. Senator Daniel K. Akaka for Reconciliation Process Public Dialogue (Dec. 10, 

1999). 

(OHA) 156 managed by a board of trustees that receives and expends the portion of income from the public trust lands that is allocable to Native Hawaiians. OHA was created by the State of Hawaii in order to administer the trust created by the congressional 

legislation authorizing its annexation as the fiftieth state of the 

United States. Pursuant to its authorizing legislation, OHA was 

‘‘intended to advance multiple goals: to carry out the duties of the 

trust relationship between the islands’ indigenous peoples and the 

Government of the United States; to compensate for past wrongs 

to the ancestors of these peoples; and to help preserve the distinct, 

indigenous culture that existed for centuries before Cook’s arrival 

[in 1778].’’ 157

Apology & Reconciliation: a mandate for the United States to address Native Hawaiian self-governance 

Acknowledging the 100th anniversary of the 1893 overthrow of 

the Kingdom of Hawaii, Congress passed an Apology Resolution158

in 1993 in which it apologized on behalf of the United States to Native Hawaiians for the United States’ role in the illegal overthrow 

of the Kingdom of Hawaii, the subsequent suppression of the inherent right of the Native Hawaiian people to self-determination and 

self-governance, and committed the United States to a process of 

reconciliation with Native Hawaiians. 

The Apology Resolution acknowledges the direct participation of 

United States agents and citizens in the overthrow, and recognizes 

that the 1.8 million acres of lands acquired by the United States 

were done so without the consent of or compensation paid to the 

Native Hawaiian people. The apology also acknowledges that Native Hawaiian people never directly relinquished their claims to 

their inherent sovereignty as a people over their national lands to 

the United States, urges the President to seek reconciliation with 

the Hawaiian people, and provides a foundation for reconciliation 

between the United States and the Native Hawaiian people.159

When I proposed the Apology Resolution a few years 

ago, I had three goals. They were to (1) educate the Congress and the American public on the overthrow of the 

Kingdom of Hawaii, (2) to provide a continuing forum for 

discussion and (3) to lay the foundation for reconciliation 

efforts between Native Hawaiians and the Federal Government. The Apology Resolution is the first step towards reconciliation, the first step towards healing.160

In response to the Apology Resolution, the Departments of the 

Interior and Justice conducted a series of consultations and hearings in Native Hawaiian communities in 1999. These hearings determined that because the United States aided in the destruction 

of the Native Hawaiian government, effectively suppressing the 

Native Hawaiian people’s right to self-determination, federal recognition of a Native Hawaiian government is the proper path to 


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161THE DEPARTMENT OF THE INTERIOR & THE DEPARTMENT OF JUSTICE, FROM MAUKA TO

MAICAI: THE RIVER OF JUSTICE MUST FLOW FREELY, REPORT ON THE RECONCILIATION PROCESS

BETWEEN THE FEDERAL GOVERNMENT AND NATIVE HAWAIIANS 17 (Oct. 23, 2000) [hereinafter 

Mauka to Makai]. 162 Id. at ii. 163Legislative Hearing on H.R. 443, 444, 1461, 1556, 2444 Before the H. Subcomm. on Indian 

and Alaska Native Affairs, 112th Cong. (Sep. 22, 2011) (statement of Representative Boren (D– 

OK), Member, H. Subcomm. on Indian and Alaska Native Affairs) (‘‘Self-governance is arguably 

the most successful Indian policy in the history of our country.’’). 164MAUKA TO MAKAI, supra note 161, at 17. 165The Hawaii State Legislature passed SB1520 and it was signed into law as Act 195 by 

Governor Abercrombie. Act 195 recognizes Native Hawaiians as the indigenous population of the 

Hawaiian Islands. The law establishes the Native Hawaiian Roll Commission, with unpaid commissioners appointed by the Governor, to certify and publish a roll of Qualified Native Hawaiians. Act 195 calls for the roll to be used to organize a Native Hawaiian governing entity that 

is recognized by the State of Hawaii, and can be recognized by the United States. 

reconciliation. The result of the Departments’ reconciliation efforts 

was a joint report, From Mauka to Makai: The River of Justice 

Must Flow Freely, published in 2000. The report concluded: 

[T]hat 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.161

This report recommends that the reconciliation process between 

the Federal Government and the Native Hawaiian people should 

‘‘result in congressional confirmation of a political, government-togovernment relationship between Native Hawaiians and the Federal Government pursuant to Congress’ plenary authority over Indian Affairs.’’ 162

Since the issuance of the report, the Senators from Hawaii have 

introduced legislation to implement the findings of the reconciliation report. This Committee held several hearings on the matter. 

While Congress has consistently recognized Native Hawaiians as 

among the indigenous peoples 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 and 

subsequent recognition of a sovereign Native Hawaiian governing 

entity as a necessary first step to promote reconciliation, as called 

for by the Apology Resolution. 

While its potential remains unfulfilled, the Apology Resolution 

has increased Native Hawaiians’ initiatives for self-determination.163 It is within Congress’ plenary power to enact 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.164

Nineteen years after the Apology, the federal trust responsibility to 

Native Hawaiians remains intact but unfulfilled 

In 2011, the Hawaii state legislature introduced and enacted Act 

195.165 Act 195 established a Native Hawaiian Roll Commission 

which officially acknowledges Native Hawaiians as the only indigenous people of the Islands. It also establishes a governor-appointed 

commission charged with enrolling qualified Native Hawaiians to 

participate in the reorganization of a self-governing entity. 


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166 Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. 

Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Sen. Brickwood Galuteria, 

Majority Leader, Hawaii State Capitol). 167 Haw. Const. art. XV, § 4. 168 Hawaii Administrative Rules, Title 17, Subtitle 6, Chapter 656.1 (1998). 169 Hawaii Administrative Rules, Title 13, Chapter 300 (1996). 170These acts are codified in 14 titles of the United States Code. See discussion supra pp. 10– 

12. 171 16 U.S.C. § 396d; 16 U.S.C. §§ 470a, h–2, h–4; 16 U.S.C. § 1244; 25 U.S.C. § 3002; 25 U.S.C. 

§ 3003; 25 U.S.C. § 3004; 25 U.S.C. § 3005; 25 U.S.C. § 3006; 29 U.S.C. § 721; 42 U.S.C. § 2991B– 

1; 42 U.S.C. § 3032G; 42 U.S.C. § 11705. In response to President Obama’s 2009 Memorandum 

on Tribal Consultation requiring regular and meaningful consultation and collaboration with 

tribal officials, the Department of Defense published its policy and procedures to identify and 

ensure compliance ‘‘with the requirements of Presidential Memorandums, Executive orders, statutes, and regulations.’’ U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF DEFENSE INSTRUCTION

NUMBER 4710.03: CONSULTATION POLICY WITH NATIVE HAWAIIAN ORGANIZATIONS (Oct. 25, 

2011). See Memorandum on Tribal Consultation (Nov. 5, 2009) (referring to Exec. Order No. 

13175 (Nov. 6, 2000)); DEPARTMENT OF DEFENSE PLAN OF ACTION TO IMPLEMENT THE POLICIES

AND DIRECTIVES OF EXECUTIVE ORDER 13175, CONSULTATION AND COORDINATION WITH INDIAN

TRIBAL GOVERNMENTS, PROGRESS REPORT (2011). 

Through Act 195, the State of Hawaii expressly supports the continuing development of the reorganization of the Native Hawaiian 

governing entity and its subsequent recognition by the Federal 

Government. ‘‘The enactment of Act 195 was yet another example 

of Hawaii’s ongoing desire to recognize the unique contributions 

and traditions of the Native Hawaiian people.’’ 166

The State of Hawaii has also worked to embrace, protect and advance the Native Hawaiian people and their culture in other ways, 

including but not limited to: designating the Native Hawaiian language as one of the two official languages of the state; 167 recognizing the legitimacy of the traditional Native Hawaiian childrearing practice of hanai (fostering/adoption) in state functions 

such as the provision of human services and education; 168 and implementing a system of protecting Native Hawaiian graves and sacred sites through State burial councils comprised of Native Hawaiian representatives with expertise in Native Hawaiian culture and 

burial practices appointed by the Governor and confirmed by the 

State Senate.169

Further, the Administration has implemented programming in a 

number of departments to address many Native Hawaiian concerns, concerns shared by other Native Americans, in the Departments of Defense, Health and Human Services, Housing and Urban 

Development, the Interior Agriculture, Treasury, Veterans Affairs, 

Commerce and Education, as well as the Small Business Administration and other federal agencies. 

In addition to retaining oversight and policy responsibilities over 

the HHCA, Congress has enacted over 150 laws addressing the 

conditions of Native Hawaiians, protecting their rights, and 

strengthening their ability to perpetuate their language and culture.170 In many of these statutes, Congress specifically requires 

federal agencies to engage in meaningful consultation with the Native Hawaiian people for issues related to national parks, national 

historic preservation programs, the national trails system, the Native American Graves Protection and Repatriation Act (NAGPRA), 

vocational rehabilitation services, and public health and welfare 

economic opportunity programs.171 There are additional federal 

statutes that direct the employment of at least one Native Hawaiian representative to applicable boards, councils, or advisory commissions to represent the interests of Native Hawaiians and to enVerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251

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172 16 U.S.C. § 396d; 16 U.S.C. § 410jj–7; 16 U.S.C. § 470i; 16 U.S.C. § 6401; 20 U.S.C. § 4441; 

20 U.S.C. § 7514; and 25 U.S.C. § 4221. 173 Advancing the Federal-Tribal Relationship through Self-Governance and Self-Determination: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) 

(statement of D. Noelani Kalipi, President, TiLeaf Group) (‘‘These situations best illustrate the 

challenges faced by Native Hawaiians and the consequences of not being afforded the opportunity to federal policies that encourage and empower native peoples to manage their lands and 

resources within the federal framework of self-determination,’’). Ms. Kalipi specifically mentioned the HHCA (a Federal statute adopted into the State of Hawaii’s Constitiutuion as a condition of statehood ‘‘subject to amendment or repeal only with the consent of the United States’’) 

and its implementation by DHHL (a state agency) and the complications that can arise when 

state officials are faced with having to choose between what is in the best interest of the State 

versus what it is the best interest of the Native Hawaiians). See, e.g., Hawaii Admissions Act, 

Pub. L. 86–3, 73 Stat. 4. 

sure the survival of traditional Native Hawaiian subsistence, culture, and religion.172

Separate is not equal: the Secretary of the Interior has failed to act 

to uphold the federal trust responsibility 

The Committee has compiled an extensive oversight record in the 

112th Congress, conducting 32 oversight hearings, 5 field hearings, 

and 12 roundtables to study the unique problems of Native Americans, which includes the American Indian, Native Hawaiian, and 

Alaska Native people. The Committee reviewed, monitored, and 

studied federal agency programs, activities, and policy implementation related to Native Americans and the trust responsibility of the 

United States. While most of these oversight activities produced information related to Native Hawaiians, approximately ten specifically focused in part, and another three focused exclusively on Native Hawaiians or programs for their benefit. 

Over the last 21 months, as part of its oversight duties, the Committee conducted seventeen site visits to Native Hawaiian homelands, historical and sacred sites, natural and cultural resources 

project sites, agricultural sites, public charter schools, Native language immersion programs, housing, health care, social services, 

senior and childcare programs and facilities; and, economic development activities and projects in Hawaii. The Committee has also 

received and reviewed oral and written testimony from federal, 

state, and tribal officials, dozens of Native Hawaiian educators, 

housing officials, community representatives and leaders, business 

leaders, professors of Federal Indian Law, experts in Native Hawaiian history, law and legal precedents, and many other Native 

Hawaiian and Native American organizations. 

Witnesses testified before the Committee explaining the numerous obstacles Native Hawaiians face because the Federal Government continues to retain oversight over Native Hawaiian affairs, 

yet allows for the implementation of federal law by state offices. 

This delegation of authority disregards federal mandates and ignores the Federal Government’s trust responsibility to Native Hawaiians. ‘‘The enactment of S. 675 . . . would address this inequity 

and provide for Native Hawaiian control, management and accountability of native lands and resources, thereby providing parity 

in federal policies towards American Indians, Alaska Natives and 

Native Hawaiians.’’ 173

The broad scope of the Committee’s oversight has established a 

notable failure of the United States to afford the Native Hawaiian 

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174On January 22, 2004, the U.S. Senate approved funding for an Office of Native Hawaiian 

Relations based in Washington, D.C., thereby highlighting the special relationship between the 

U.S. government and Native Hawaiians. President Bush signed the bill into law as part of the 

Omnibus Appropriations Act for fiscal year 2004. Pub. L. No. 108–199, 118 Stat. 445 (2004) (referring specifically to section 148). 175Pub. L. No. 104–42, 109 Stat. 353 (1995). 176Pub. L. No. 108–199, 118 Stat. 445 (2004). 

ure is particularly egregious with respect to DOI and the Office of 

Native Hawaiian Relations. 

In 2004, Congress created the Office of Native Hawaiian Relations within the Office of the Secretary of the Interior with the following duties: (1) effectuate and implement the special legal relationship between the Native Hawaiian people and the United 

States; (2) continue the process of reconciliation with the Native 

Hawaiian people; and (3) fully integrate the principle and practice 

of meaningful, regular, and appropriate consultation with the Native Hawaiian people by assuring timely notification of and prior 

consultation with the Native Hawaiian people before any federal 

agency takes any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands.174

Congress delegated authority for the federal recognition of tribes 

to the executive branch. This authority flows from the President to 

the Secretary of the Interior to the Bureau of Indian Affairs. Yet, 

regarding Native Hawaiians, the Secretary of the Interior did not 

delegate this authority to the Bureau of Indian Affairs. The Office 

of Native Hawaiian Relations has been designated by the Secretary 

of the Interior to administer the responsibilities of the United 

States under the Hawaiian Home Lands Recovery Act 175 and the 

HHCA, which include advancing the interests of the beneficiaries, 

and assisting the beneficiaries and the State of Hawaii Department 

of Hawaiian Home Lands (DHHL) in obtaining assistance from programs of the Department of the Interior and other federal agencies 

that will promote homesteading opportunities, economic self-sufficiency, and social well-being of the beneficiaries. When these responsibilities are ignored, or transferred to the State of Hawaii, as 

witnesses have noted often occurs, the Federal Government fails to 

uphold its trust responsibility to the Native Hawaiian people. 

The Department of the Interior (DOI) has a trust responsibility 

to all Native Americans: American Indians, Native Hawaiians, and 

Alaska Natives. Yet, the Office of Native Hawaiian Relations is not 

located within the framework of the Assistant Secretary of Indian 

Affairs within DOI. The Assistant Secretary of Indian Affairs has 

the responsibility to fulfill DOI’s trust responsibilities to all Native 

American tribes and individuals, as well as promoting the self-determination and economic well-being of the tribes and their members. As it is currently structured, the Office of Native Hawaiian 

Relations does not engage on behalf of the United States, despite 

the mandate to ‘‘effectuate and implement the special relationship 

between the Native Hawaiian people and the United States’’ and 

to ‘‘fully integrate the principle and practice of meaningful . . . 

consultation with the Native Hawaiian people . . . before any Federal agency takes actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands.’’ 176

The Committee notes the support of the current Assistant Secretary of Indian Affairs, and urges the Secretary of the Interior to 

take affirmative steps to carry out the federal trust responsibility. 


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177The President’s Nomination of Kevin K. Washburn to be Assistant Secretary—Indian Affairs, Department of the Interior: Nomination Hearing Before the S. Comm. on Indian Affairs, 

112th Cong. (Sept. 14, 2012) (statement of Kevin K. Washburn). 178S Comm. on Indian Affairs: Business Meeting to consider S. 675, S. 1345, S. 1684 (Sept. 

13, 2012) (statement of Sen. Daniel K. Akaka, Chairman, S. Comm. on Indian Affairs). 179 Advancing the Federal-Tribal Relationship through Self-Governance and Self-Determination: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) 

(statement of D. Noelani Kalipi, President, TiLeaf Group) (noting that ‘‘without access to the 

federal framework of self-governance and self-determination . . . Native Hawaiians don’t have 

the same tools available to manage and control their resources’’). 180 Id. 

‘‘The Native Hawaiians are in a very similar situation to the Native Alaskans and American Indians on the mainland. There is 

every reason to believe that they should also have a governmentto-government relationship with the United States. I personally 

fully support that . . . [The Native Hawaiians] deserve to have a 

similar treatment as similar entities . . . and I hope [S. 675] 

passes as it is because I would look forward to implementing such 

a bill, if I were confirmed.’’ 177 In order to fulfill its federal trust 

responsibility, American Indians, Native Hawaiians, and Alaska 

Natives must all be organized under Indian Affairs at DOI. 

The Committee has concluded that the conditions and challenges 

facing Native Hawaiians mirror those found in American Indian 

and Alaska Native communities across the nation. These challenges are daunting, the problems seemingly intractable, the health 

disparities and other statistical inequities deeply troubling. Without full and equal access to the prevailing federal policy on self-determination, and the ability to once again exercise their right to be 

self-governing, Native Hawaiians will continue to lack parity under 

federal law, and the purpose of the more than 150 federal statutes 

enacted over the past 90 years will be frustrated, and the intent 

and authority of the Congress undermined. 

Congress has consistently fulfilled its trust responsibilities to Native 

Hawaiians and must act to correct the failure of the Secretary 

of the Interior 

‘‘Congress has created and continues to fund programs to address 

the Native Hawaiian needs in the areas of health, education, welfare and housing, but has failed to uphold the final and most important piece of the trust relationship with Native Hawaiians, a 

guaranteed right to self-governance.’’ 178 However well-intentioned, 

without a government-to-government relationship between the 

United States and Native Hawaiians, the programs and mechanisms created to help manage Native Hawaiian land trusts and resources, including the Office of Native Hawaiian Relations, will 

continue to prevent self-governance and self-determination by Native Hawaiians.179 ‘‘[T]he management of Native Hawaiian resources within the state framework does not result in self-governance and self-determination by Native Hawaiians, nor does it result in Native Hawaiian control and management of resources—a 

fundamental element of self-rule under the federal framework.’’ 180

While the history of the United States is replete with examples 

of unequal treatment of certain groups of people, one of the things 

that make our nation so great is that our system of laws allows us 

to change, correct mistakes, and right past wrongs. ‘‘It is our responsibility as a nation to do right by America’s Native people, 

those who exercised sovereignty on lands that later became part of 


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181 158 CONG. REC. S7765–66 (daily ed. Dec. 12, 2012) (statement of Sen. Daniel K. Akaka). 182 Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. 

Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Robin Danner, President/ 

CEO, Council for Native Hawaiian Advancement (CNHA)). 183Memorandum of November 5, 2009—Tribal Consultation, 74 Fed. Reg. 57,881, 57,881 (Nov. 

9, 2009). 184 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987) (citations omitted). 185 Joseph P. Kalt, Constitutional Rule and the Effective Governance of Native Nations, in 

AMERICAN INDIAN CONSTITUTIONAL REFORM AND THE REBUILDING OF NATIVE NATIONS 184 (Eric 

D. Lemont ed., 2006). ‘‘[F]ederal promotion of tribal self-government under formal policies 

known as ‘self-determination’ is turning out to be, after a century or more of failed efforts to 

improve the lives of the U.S. indigenous people, the only strategy that has worked. In so doing, 

the strategy is improving the well-being of its poorest and, arguably, historically most oppressed 

and disempowered people.’’ Stephen Cornell & Joseph P. Kalt, American Indian Self-Determination: The Political Economy of a Policy that Works 15 (Harvard Kennedy School Faculty Research Working Paper Series, Paper No. RWP10–043, 2010) (quoting Richard M. Nixon, Special 

the United States. While we can never change the past, we have 

the power to change the future.’’ 181 The United States has recognized hundreds of Alaska Native and American Indian communities. The Committee has concluded that it is long past time for 

the Native Hawaiian people to have the same rights, the same 

privileges, and the same opportunities as every other federally-recognized Native people. 

NEED FOR LEGISLATION

The Native Hawaiian Government Reorganization Act of 2012 is 

necessary legislation for a number of compelling reasons. 

The primary goal of S. 675 is to establish a process for the reorganization and federal recognition of a Native Hawaiian government and to reaffirm the special political and legal relationship between the United States and the Native Hawaiian governing entity 

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

other relevant provisions of the Constitution. Congress has not yet 

acted to provide a process for reorganizing a Native Hawaiian governing entity. 

That inaction has placed Native Hawaiians at a unique disadvantage. Of the three major groups of Native Americans in the 

United States—American Indians, Alaska Natives, and Native Hawaiians—only Native Hawaiians currently lack the benefits of 

democratic self-government. In earlier eras, similar deprivations 

wreaked havoc on countless American Indians and Alaska Natives. 

To avoid this, consultation with Native Hawaiians must be emphasized.182 As President Obama recently stated, ‘‘History has shown 

that failure to include the voices of tribal officials in formulating 

policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results.’’ 183

For nearly a half century, Congress has pursued a strong policy 

of tribal self-determination and self-government, with the ‘‘overriding goal of encouraging tribal self-sufficiency and economic development.’’ 184 The results of this policy have been striking. As the 

co-director of the Harvard Project on American Indian Economic 

Development, Joseph P. Kalt, recently wrote, ‘‘the evidence is overwhelming that political self-rule is the only policy’’ that has succeeded in overcoming Native Americans’ ‘‘social, cultural, and economic destruction.’’ 185 For Native Americans, economic developVerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00034 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251

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Message on Indian Affairs (July 8, 1970). In July 2009, then-Assistant Secretary of the Interior 

for Indian Affairs, Larry Echo Hawk signed a Memorandum of Understanding (MOU) with Harvard University’s Project on American Indian Economic Development ‘‘whereby the Department 

and Harvard will collaborate on promoting Tribal economic development through research, outreach and leadership education.’’ Strengthening Self-Sufficiency: Overcoming Barriers to Economic Development in Native Communities Oversight Field Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 8, 16 (Aug. 17, 2011) (statement of Michael R. Smith, Deputy Bureau 

Director, Field Operations, Bureau of Indian Affairs, U.S. Department of the Interior) (citations 

omitted). See also Strengthening Self-Sufficiency: Overcoming Barriers to Economic Development 

in Native Communities Oversight Field Hearing Before the S. Comm. on Indian Affairs, 112th 

Cong. 32 (Aug. 17, 2011) (statement of Robin Puanani Danner, President & CEO, Council for 

Native Hawaiian Advancement). 186Stephen Cornell & Joseph P. Kalt, Sovereignty and Nation Building: The Development 

Challenge in Indian Country Today, 22 Amer. Indian Culture & Res. J. 187, 212 (1998); Charles 

Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 271 (2005) (‘‘Experience in Indian economic development . . . has shown that strong and effective tribal governments, anchored in tribal culture, are critical for economic progress.’’). 

ment ‘‘is first and foremost a political problem. At the heart of it 

lie sovereignty and the governing institutions through which sovereignty can be effectively exercised.’’ 186 By establishing a process 

that would lead to the reorganization of a sovereign Native Hawaiian government, S. 675 will finally put Native Hawaiians on a par 

with other Native Americans, giving them equal access to the benefits of accountable, local, democratic self-rule. 

Reconciliation and remedy to a historical wrong 

Much of the evolving federal policy and history with the Indian 

Tribes was the result of balancing the nation’s founding ideals 

against its need for civil order. The federal policy of recognizing the 

sovereignty of tribes, and promoting the self-determination and 

self-governance of Native nations through their tribal governments 

is in part, a testament to the American understanding that (1) tribal peoples never consented to be governed by the United States, 

and (2) that the power of tribal governments emanates from the 

consent of their membership. Over time, the United States came to 

view its relationship with the Indian tribes as one of a trustee to 

a ward, and of a greater nation to a dependent nation. 

The last recognized government of the Native Hawaiian people 

was the Kingdom of Hawaii, built on the foundation of Native Hawaiian culture and sovereignty in the Hawaiian archipelago from 

time immemorial. Prior to the illegal overthrow in 1893, the United 

States recognized the Kingdom of Hawaii as foreign nation, but it 

is clear that the United States’ attitude and policies towards the 

Kingdom of Hawaii evolved in a manner consistent with its attitude, policies and treatment of Indian Tribes as dependent nations 

in need of protection. This is evidenced by President Johnson’s 

message to Congress on December 9, 1868 wherein he states, ‘‘It 

is known and felt by the Hawaiian Government and people that 

their Government and institutions are feeble and precarious; that 

the United States, being so near a neighbor, would be unwilling to 

see the islands pass under foreign control. Their prosperity is continually disturbed by expectations and alarms of unfriendly political proceedings, as well from the United States as from other foreign powers.’’ 

In enacting the Apology Resolution, the United States acknowledged that, in contravention of existing treaties of friendship and 

peace, the United States Minister John L. Stevens ‘‘conspired with 

a small group of non-Hawaiian residents of the Kingdom of Hawaii, 

including citizens of the United States, to overthrow the indigenous 


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187Sen. Daniel K. Akaka, Final Speech to the Native Hawaiian Convention (Oct. 5, 2012). 

and lawful government of Hawaii,’’ by landing armed naval forces 

of the United States to support the illegal overthrow of the Kingdom of Hawaii and extending ‘‘diplomatic recognition to the Provisional Government that was formed by the conspirators without 

the consent of the Native Hawaiian people or the lawful Government of Hawaii.’’ 

The Apology Resolution recognizes that actions by the United 

States resulted in the suppression of the ‘‘inherent sovereignty of 

the Native Hawaiian people’’ and the ‘‘deprivation of the rights of 

Native Hawaiians to self-determination.’’ Further, the Apology Resolution finds that ‘‘the Native Hawaiian people are determined to 

preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with their 

own spiritual and traditional beliefs, customs, practices, language 

and social institutions.’’ The United States committed itself to a 

process of reconciliation, urging the President to ‘‘support reconciliation efforts between the United States and the Native Hawaiian 

people.’’ 

As a result of the Apology Resolution, the U.S. Departments of 

Justice and the Interior conducted a series of reconciliation hearings in Hawaii in December 1999, resulting in the issuance of the 

a report on the reconciliation process between the Federal Government and Native Hawaiians on October 23, 2000, entitled From 

Mauka to Makai: The River of Justice Must Flow Freely. The report 

notes that reconciliation requires ‘‘actions to rectify the injustices 

and compensation for the harm.’’ 

The Native Hawaiian Government Reorganization Act of 2012 

provides a remedy for the unjust suppression of the Native Hawaiian right to self-determination and self-governance within the 

framework of existing federal law. Because the bill simply empowers the Secretary of the Interior to recognize a Native Hawaiian 

government once reorganized by the Native Hawaiian people, it 

serves as the first necessary step towards reconciliation. As is the 

case with other federally-recognized tribes, the contours of the federal relationship with the Native Hawaiian people can be further 

defined by future Congresses with appropriate and representative 

consultation with the Native Hawaiian government. 

The Native Hawaiian Government Reorganization Act implements the key recommendation called for in the 2000 report issued 

by the Departments of Justice and the Interior, advancing the reconciliation process Congress called for in the Apology Resolution 

nearly 20 years ago. 

Necessary tool for the preservation and perpetuation of an indigenous people and culture 

‘‘Native self-governance leads to Native self-sufficiency, resulting 

in our continued ability to be productive and contribute to the wellbeing of our families, our communities, and our great nation.’’ 187

Self-governance would allow Native Hawaiian people to exert control over their people and communities—as they had done for thousands of years before the overthrow of the Kingdom of Hawaii. Selfgovernance is vital to the survival of the Native Hawaiian people 

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188 ‘‘[T]he question was not whether the federal government had an interest in the affairs of 

the American Indian tribes, but rather ‘how that responsibility can be best fulfilled.’ The answer 

adopted by the federal government was and remains self-determination through self-governance 

and economic self-sufficiency.’’ Stephen Cornell & Joseph P. Kalt, American Indian Self-Determination: The Political Economy of a Policy that Works 19 (Harvard Kennedy School Faculty 

Research Working Paper Series, Paper No. RWP10–043, 2010) (quoting Richard M. Nixon, Special Message on Indian Affairs (July 8, 1970). 

ernance is a fundamental right that Native Hawaiians, like all 

other Native Americans, should be allowed to practice. Establishing 

an avenue for Native Hawaiians to reorganize and receive federal 

recognition will provide opportunities for Native Hawaiians to preserve their cultural resources, exercise self-governance and self-determination, and develop their own solutions to the problems faced 

by their community. 

With the ability to control the decision-making process, Native 

Hawaiians could expand the level of services that it provides and 

has brought economic benefits to all Native Hawaiians: provide 

more housing, medical facilities, develop its economic base, and the 

course of the protection of natural resources. One of the great advantages of the federal policy of advancing Native self-determination through self-governance has been the wide range of tools afforded to Native people in their ability to perpetuate their traditional knowledge, perspectives, values and cultures for generations 

to come. Self-determination is the only federal policy to help Native 

people address health concerns and the socio-economic conditions of 

their communities in a manner that leads to greater self-sufficiency.188

Self-governance ensures that, within the framework of federal 

law, Native people can exercise their legislative, judicial and executive authorities consistent with their cultural values and community norms. By doing so, tribes are able to develop their economies 

and address the health, safety and welfare concerns of their communities in a manner that ensures their indigenous cultures are 

perpetuated and their traditional lifeways continue to be relevant 

to future generations. Tribes have also used their sovereign authority to develop programs and services to retain and recover aspects 

of tribal life, such as the Native language and ceremonies, which 

may otherwise be lost. 

While the United States has clearly legislated to provide resources to assist the Native Hawaiian people in perpetuating their 

culture and language, and to improve the health and socio-economic conditions of their communities, a failure to recognize the 

self-governing authority of the Native Hawaiian people will always 

hamper the efficacy of these resources and deny Native Hawaiians 

some of the greatest tools available under existing federal law to 

perpetuating their culture and ensuring a healthy population. 

The Native Hawaiian Government Reorganization Act of 2012 

provides a process for the Native Hawaiian people to reorganize 

their representative government and petition to have that government recognized by the United States, providing an effective mechanism for the Native Hawaiian people to be self-governing and to 

exercise legislative, judicial and executive authorities in a manner 

that is consistent with Native Hawaiian culture, lifeways and values. 


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189 HISTORY, JURISDICTION, AND A SUMMARY OF LEGISLATIVE ACTIVITIES OF THE S. SELECT

COMM. ON INDIAN AFFAIRS, 95TH CONG. 24 (1977–1978). 190 Joint Statement of Senators Daniel K. Akaka and Daniel K. Inouye Before the House Judiciary Subcommittee on the Constitution regarding H.R. 309/S. 147, the Native Hawaiian Reorganization Act 3 (July 19, 2005). 

Clarity and parity in federal policy 

The United States has long recognized the Native Hawaiian people as an indigenous people to whom it has a trust responsibility. 

Beginning in 1921, the Congress began enacting legislation to address the socio-economic conditions of Native Hawaiians and the 

protection of their collective rights and culture, sometimes in the 

same legislation it advanced for other Native American groups, and 

in other instances, as separate but parallel legislation. 

The rationale for separate legislation for Native Hawaiians was 

enunciated in the History, Jurisdiction, and a Summary of Legislative Activities of the United States Senate Select Committee on Indian Affairs during the Ninety-Fifth Congress, as it contemplated 

legislation to include the Native Hawaiian people in the Indian 

Education Act. The report states: 

[T]he committee concluded that simply expanding the 

definition of ‘‘Indian’’ under present Federal laws to include Native Hawaiians ignored the uniqueness of a number of programs administered by the Bureau of Indian Affairs which are premised on the existence of a tribal government exercising powers of self-government. Native Hawaiian organizations do not exercise comparable self-governing authority. However, the committee received testimony which documented the Native Hawaiian’s need for 

supplemental educational services. The committee amendment to S. 857, the Native Hawaiian Education Act, was 

in the nature of a substitute, and established separate 

educational programs for Native Hawaiians identical to 

those provided by the Indian Education Act.189

This approach to meeting the federal trust responsibility to the 

Native Hawaiian people is common when the primary legislation 

relies on tribal government institutions in implementing key provisions, but when the legislation can be implemented without heavy 

reliance on the self-governing authority of tribes, Congress has generally elected to legislate on behalf of Native Hawaiians in the 

same legislation as American Indians and Alaska Natives. 

This disparate treatment is a direct result of U.S. action aiding 

in the illegal overthrow of the Kingdom of Hawaii, effectively depriving Native Hawaiians of their traditional government. ‘‘[T]his 

bill does not propose anything new nor does it afford special treatment to Native Hawaiians. Rather, this bill acknowledges our special relationship with Native Hawaiians and places them on equal 

footing with the other aboriginal, indigenous people of the United 

States. It merely extends the Federal policy of self-governance and 

self-determination to Native Hawaiians.’’ 190

The federal policy towards its Native nations is to uphold the 

trust responsibility in three primary ways: (1) the provision of programs and services to address socio-economic needs; (2) the protection of the collective rights of the Native people; and (3) assuring 

the right to self-governance within the framework of federal law. 


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191 Joint Statement of Congressmen Neil Abercrombie and Ed Case Before the House Judiciary Subcommittee on the Constitution on H.R. 309/S. 147, the Native Hawaiian Government Reorganization Act of 2005, 2–3 (July 19, 2005). 192 Advancing the Federal-Tribal Relationship through Self-Governance and Self-Determination: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (Sept. 20, 2012) 

(statement of Sen. Daniel K. Akaka, Chairman, S. Comm on Indian Affairs). 

For more than 90 years, Congress has acted to address the socioeconomic needs and protect the collective rights of the Native Hawaiian people, enacting over 150 statutes. S. 675 fulfills the third 

and final area of the trust responsibility by ensuring that the Native Hawaiian people have a mechanism to reorganize their representative Native government and seek its recognition by the 

United States. 

‘‘[S. 675] is nothing more than another manifestation of the bedrock of our federal policy toward indigenous people.’’ 191 With its 

passage, the Congress ensures parity in federal policy for all recognized Native people and clarifies the federal relationship with the 

Native Hawaiian people, allowing them full access to the prevailing 

federal policy on self-determination and the ability to exercise their 

right to self-governance.192

Administrative efficiency and best use of federal and Native Hawaiian resources 

As was noted earlier, existing federal law requires the provision 

of services to and consultation with the Native Hawaiian people by 

a variety of federal departments and agencies. Effective and efficient administration of programs designed to provide services and 

meet consultation requirements are hampered by the lack of a formal government-to-government relationship through which federal 

agencies can work. As a result, federal agencies must develop separate programs, regulations, and processes for meeting responsibilities to Native Hawaiians than are developed for meeting the same 

responsibilities to other Native people that have a government-togovernment relationship with the United States. This results in duplicative efforts and an inefficient use of resources that could otherwise be dedicated to programmatic solutions rather than administrative costs. 

The disparate treatment of Native Hawaiians and a lack of centralized services also results in a duplication of efforts by Native 

Hawaiian organizations seeking to serve the same populations, particularly in the areas of outreach and program administration. One 

of the core efficiencies that tribal governments represent for their 

members is a centralized place for accessing a variety of programs, 

services, and solutions. Without a recognized representative government, Native Hawaiians must learn about and access a multiplicity of organizations providing services, often focused around an 

area of concern, a locality, or both. 

Finally, the absence of a recognized government representing the 

Native Hawaiian people results in undue burdens and inefficiencies 

for organizations and agencies seeking to work or consult with the 

Native Hawaiian community. For example, both the State of Hawaii and the United States have laws governing the treatment of 

Native graves and funerary objects, particularly when found in the 

course of development. 

The State of Hawaii burial protection laws require developers to 

consult with the lineal and cultural descendants of burials that 


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may be found on a development site in advance of development. 

The absence of a recognized Native government requires developers 

to have a deeper understanding of the history and family composition of an area where they are proposing development in order to 

effectively meet the state law requirements. They must conduct 

outreach and provide public opportunities for input into communities they may not know how best to reach. A recognized Native 

Hawaiian government could decrease the level of effort required by 

developers to comply with the applicable laws and increase the 

rates of success in effectively engaging the lineal and cultural descendants in a coordinated and timely fashion. 

By reorganizing a central and recognized representative government for the Native Hawaiian people, passage of S. 675, the Native 

Hawaiian Government Reorganization Act, will enhance efficiencies 

for: federal, state and local governments working with the Native 

Hawaiian community; the Native Hawaiian community members 

finding and successfully accessing appropriate and available programs and services; as well as other organizations and efforts seeking to work or consult with the Native Hawaiian people. 

LEGISLATIVE HISTORY

S. 675 was introduced on March 30, 2011, by Senator Akaka for 

himself and Senators Inouye, Begich and Murkowski, and referred 

to the Committee on Indian Affairs. S. 675 was identical to the 

version of the legislation marked up by the Committee in the 111th 

Congress, except for technical and conforming changes. On April 7, 

2011, the bill was ordered by the Committee to be favorably reported without amendment. On September 13, 2012, the bill was 

ordered by the Committee to be reported favorably with an amendment in the nature of a substitute. 

A House companion measure to S. 675, H.R. 1250, was introduced on March 30, 2011, by Representative Hirono for herself and 

Representatives Bordallo, Boswell, Carnahan, Cole, Courtney, 

DeGette, Faleomavaega, Farr, Hanabusa, Hinchey, Honda, Kildee, 

Kucinich, Maloney, Matsui, McDermott, McIntyre, Napolitano, 

Payne, Roybal-Allard, Sablan, Stark, Walz, Woolsey, and Young, 

and referred to the Committee on Natural Resources. Representatives Andrews, Brady, Cohen, Jones, McCollum, Miller, and Rahall 

joined as co-sponsors on March 31, 2011. Representatives Boren, 

DeLauro, Grijalva, Lewis, Moore, Moran, Olver, Pastor, and Reyes 

joined as co-sponsors on April 1, 2011. Representatives Frank, 

Garamendi, Lofgren, Zoe and Sarbanes joined as co-sponsors on 

April 6, 2011. Representatives Brown, Christensen, Chu, Conyers, 

Markey, and Rangel joined on April 12, 2011. The Natural Resources Committee has not met to consider the bill as of this report. 

In the 111th Congress, S. 1011 was introduced on May 7, 2009, 

by Senator Akaka for himself and Senator Inouye, and referred to 

the Committee on Indian Affairs. Senators Dorgan, Begich, and 

Murkowski became cosponsors on August 5, 2009. A hearing was 

held before the Committee on Indian Affairs on August 6, 2009. On 

December 17, 2009, the bill was ordered by the Committee to be 

favorably reported with an amendment in the nature of a substitute. Other versions of the bill, S. 381 and S. 708, were introduced but not considered by the Committee. 


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A House companion measure to S. 1011, H.R. 2314, was introduced on May 7, 2009, by Representative Abercrombie for himself 

and Representative Hirono, and referred to the Committee on Natural Resources. The Natural Resources Committee met to consider 

the bill on June 11, 2009. On December 16, 2009, the bill was favorably reported without amendment to the House of Representatives by the Yeas and Nays 26–13. On February 23, 2010, the 

House of Representatives considered H.R. 2314 and passed by the 

Yeas and Nays 245–164 with an amendment in the nature of a 

substitute offered by Representative Abercrombie. Other versions 

of the bill, H.R. 862 and H.R. 1711, were introduced but not considered by the Natural Resources Committee. 

In the 110th Congress, S. 310 was introduced on January 17, 

2007, by Senator Akaka for himself and Senators Inouye, Cantwell, 

Dodd, Murkowski, Stevens, Coleman, Dorgan, and Smith, and referred to the Committee on Indian Affairs. Senator Klobuchar became a cosponsor on December 3, 2007. A hearing was held before 

the Committee on Indian Affairs on May 3, 2007. On May 10, 2007, 

the bill was ordered by the Committee to be favorably reported 

without amendment to the full Senate. 

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

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

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

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

In the 109th Congress, S. 147 was introduced on January 25, 

2005, by Senator Akaka for himself and Senator Inouye, and referred to the Committee on Indian Affairs. Senator Smith of Oregon became a cosponsor on February 16, 2005, Senator Cantwell 

of Washington on February 18, 2005, and Senator Murkowski of 

Alaska on March 8, 2005. A hearing on S. 147 was held before the 

Committee on March 1, 2005, and on March 9, 2005, the bill, with 

an amendment in the nature of a substitute, was ordered by the 

Committee to be favorably reported to the full Senate. After the 

business meeting on March 9, 2005, when the bill was ordered reported with the substitute amendment, the following additional 

Senators joined as cosponsors: Senator Coleman of Minnesota on 

March 10, 2005, Senator Dorgan of North Dakota on April 4, 2005, 

Senator Stevens of Alaska on April 5, 2005, and Senator Graham 

of South Carolina on May 11, 2005. 

A House companion measure to S. 147, H.R. 309, was introduced 

on January 25, 2005, by Representative Abercrombie, for himself 

and Representatives Case, Grijalva, Young, Moran, Bordallo and 

Faleomavaega, and referred to the Committee on Resources. On 

February 1, 2005, Representative Rahall joined as a cosponsor. 

In the 108th Congress, S. 344 was introduced on February 11, 

2003, by Senator Akaka, for himself and Senator Inouye, and referred to the Committee on Indian Affairs. Senator Reid of Nevada 

became a cosponsor on February 27, 2003, Senator Stevens of Alaska on March 17, 2003, Senator Hatch of Utah on November 12, 

2003, Senator Smith of Oregon on December 9, 2003, Senator 

Campbell of Colorado on April 21, 2004, and Senator Carper of 

Delaware on June 24, 2004. A hearing on S. 344 was held before 

the Committee on Indian Affairs on February 25, 2003. S. 344 was 


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ordered favorably reported to the full Senate by the Committee on 

Indian Affairs on May 14, 2003. 

A House companion measure to S. 344, H.R. 665, was introduced 

on February 11, 2003, by Representative Abercrombie, for himself 

and Representative Case, and thereafter referred to the Committee 

on Resources. 

In the 107th Congress, S. 746 was introduced on April 6, 2001, 

by Senator Akaka, for himself and Senator Inouye, and thereafter 

referred to the Committee on Indian Affairs. On July 24, 2001, S. 

746 was ordered favorably reported to the full Senate. The Committee report accompanying the bill was S. Rep. No. 107–66. 

A House companion measure to S. 746, H.R. 617, was introduced 

in the House of Representatives by Representative Neil Abercrombie, for himself and Representatives Patsy Mink, Eni 

Faleomavaega, James Hansen, Dale Kildee, Nick Rahall, and Don 

Young, and thereafter referred to the Committee on Resources. 

H.R. 617 was ordered favorably reported to the full House of Representatives on May 16, 2001. S. 746 and H.R. 617 were not acted 

upon prior to the sine die adjournment of the 107th session of Congress. 

In the 106th Congress, S. 2899 was introduced by Senator 

Akaka, for himself and Senator Inouye, and referred to the Committee on Indian Affairs. A House companion measure to S. 2899, 

H.R. 4904, was introduced in the House of Representatives and 

thereafter referred to the Committee on Resources. The Committee 

and the Committee on Resources held five consecutive days of joint 

hearings on S. 2899 and H.R. 4904 in Hawai‘i from Monday, August 28, through Friday, September 1, 2000. The Committee held 

an additional hearing on S. 2899 in Washington D.C. on September 

13, 2000. S. 2899 was ordered favorably reported to the full Senate 

by the Committee on September 13, 2000. The Committee report 

accompanying the bill was Senate Report 106–424. H.R. 4904 was 

ordered favorably reported by the House Resources Committee and 

passed the House on September 26, 2000. H.R. 4904 failed to pass 

the Senate before the sine die adjournment of the 106th session of 

the Congress. 

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

A number of amendments were made to S. 675, all of which were 

included in a substitute amendment accepted by the Committee on 

September 13, 2012. These changes were made to streamline the 

legislation and recognize the work of the State of Hawaii’s Native 

Hawaiian Roll Commission, tasked with establishing a base roll of 

Native Hawaiians interested in reorganizing a Native Hawaiian 

government. 

SECTION-BY-SECTION ANALYSIS OF S. 675, AS AMENDED

Section 1. Short title 

Section 1 states that this Act may be cited as the ‘‘Native Hawaiian Government Reorganization Act of 2012’’. 

Section 2. Findings 

Section 2 establishes that Congress finds that, like American Indians and Alaska Natives, the Native Hawaiian people, having 


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never relinquished claims to inherent sovereignty, have a special 

political and legal relationship to the United States, arising out of 

their status as indigenous, Native people. Section 2 also establishes 

that Congress possesses and has exercised its constitutional authority to address the conditions of the Native Hawaiian people in 

more than 150 federal laws, including adopting the Hawaiian 

Homes Commission Act of 1920 and the Hawaii Admissions Act in 

1959. This section also identifies other state, federal and international support for the purpose of this legislation. 

Section 3. Definitions 

Defines various terms used in the Act. 

Section 4. United States policy and purpose 

Section 4 provides the following: Congress possesses and exercises the constitutional authority to address Native Hawaiian conditions; the Native Hawaiian people have the right to autonomy in 

internal affairs, an inherent right of self-determination and selfgovernance; the Native Hawaiian people have the right to reorganize and the right to become economically self-sufficient; the 

United States reaffirms the special political and legal relationship 

between the United States and the Native Hawaiian people, and 

the authority delegated to the State of Hawaii in the Admissions 

Act; the United States ensures parity in policy and treatment 

among all federally-recognized indigenous groups; the U.S. will continue to engage in reconciliation process and political relations with 

the Native Hawaiian people; and the purpose of the bill is to provide a process for the reorganization and federal recognition of a 

single Native Hawaiian government that exercises the inherent 

powers of native self-government under existing federal law, with 

the same privileges and immunities as other federally-recognized 

Indian tribes. 

Section 5. Reorganization of the Native Hawaiian governing entity 

Section 5 recognizes the Native Hawaiian right to reorganize 

under Section 16 of the Indian Reorganization Act; defines the 

membership of the Native Hawaiian people for the purposes of reorganization as those people appearing on the roll certified by the 

State of Hawaii Native Hawaiian Roll Commission authorized 

under Act 195; provides for the establishment of an Interim Governing Council, tasked with preparing the Constitution and ByLaws and submitting them for Secretarial approval; and requires 

the Interim Governing Council, with assistance from the Secretary, 

to conduct the election of officers of the Native Hawaiian governing 

entity, then terminates the Council. 

Section 6. Applicability of other Federal laws 

Section 6 provides the following: the Native Hawaiian Governing 

Entity has the inherent powers and privileges of self-government 

of an Indian Tribe, including the power to define its own membership, and will be listed as an Indian Tribe on the Federally Recognized Indian Tribe List; the Native Hawaiian Governing Entity is 

subject to the Indian Gaming Regulatory Act (IGRA) and its gaming prohibitions. Effectively, the Native Hawaiian Governing Entity 

will be barred from gaming, as all gaming in the State of Hawaii 


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is prohibited under state law; and the Secretary may treat the Native Hawaiian governing entity as an Indian Tribe for the purpose 

of carrying out any activity authorized under the Indian Reorganization Act. 

Section 7. Severability 

Section 7 provides that if any provision of the Act is held invalid, 

it is the intent of Congress that the remaining provisions remain 

in effect. 

Section 8. Authorization of appropriations 

Section 8 authorizes the appropriation of such sums as are necessary to carry out the Act. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business meeting on September 13, 2012, the Committee on Indian Affairs, by voice vote, adopted S. 675 with an 

amendment in the nature of a substitute and ordered the bill reported to the Senate, with the recommendation that the Senate do 

pass S. 675 as reported. 

COST AND BUDGETARY CONSIDERATIONS

The cost estimate provided by the Congressional Budget Office 

pursuant to section 402 of the Congressional Budget Act of 1974 

was not available for inclusion in this report. The estimate will be 

printed in either a supplemental report or the Congressional 

Record when it is available. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill to evaluate the 

regulatory and paperwork impact that would be incurred in carrying out the bill. The Committee believes that the regulatory impact of S. 675 will be minimal. 

EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the Executive Branch regarding S. 675. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

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

675 will not affect any changes in existing law. 


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ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO 

Federal recognition of a Native group is of profound importance 

to many stakeholders—the Native group itself and its members, 

the United States and its citizens, local communities and the people who live in them. I understand how challenging, complex, and 

time-consuming the administrative recognition process is—the 

Committee has heard a great deal about those problems—and sympathize with groups that have gone through it or attempted to go 

through it. 

Nevertheless, it is my view that legislative recognition—legislation that deems a group or tribe to be federally recognized—is not 

the right way to decide which groups should be recognized and 

which groups should not be recognized. 

That is a determination that can be best made by the Executive 

Branch of the Government following the regulations that have been 

adopted for that purpose, to analyze and evaluate of the historic, 

cultural, political, and other key factors that should go into the decision of whether a Native group should be formally recognized by 

the United States. 

Testifying about several recognition bills at a hearing before this 

Committee during the 110th Congress, the Director of the Office of 

Federal Acknowledgement at the Department of the Interior stated— 

Legislation such as S. 514, S. 724, S. 1058, and H.R. 

1294 [recognition bills introduced in the 110th Congress] 

would allow these groups to bypass this [the Federal acknowledgement] process—allowing them to avoid the scrutiny to which other groups have been subjected. The Administration supports all groups going through the Federal 

acknowledgment process under 25 CFR Part 83.1. 

The Department’s witness went on to point out that, in light of 

the importance and implications of recognition decisions, the Department adopted its Federal acknowledgment regulations at 25 

CFR Part 83 in 1978 in recognition of ‘‘the need to end ad hoc decision making and adopt uniform regulations for Federal acknowledgment.’’ 

I do know and appreciate how important this bill is to the Chairman and to many Native Hawaiian people in his home state. However, I feel that the policy should be the same for all Native 

groups—they should go through the administrative acknowledgement process to be federally recognized. Although there is a reorganization process contemplated by the bill as amended in the business meeting on September 13, 2012, it is, in effect, a legislative 

recognition of the Native Hawaiian entity. For that reason I cannot 

support the bill. 

JOHN BARRASSO. 

Æ 


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