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S. HRG. 111–283 

NATIVE HAWAIIAN GOVERNMENT 

REORGANIZATION ACT 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

AUGUST 6, 2009 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

ALLISON C. BINNEY, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on August 6, 2009 ............................................................................. 1 

Statement of Senator Akaka ................................................................................... 3 

Statement of Senator Barrasso ............................................................................... 2 

Prepared statement .......................................................................................... 2 

Statement of Senator Dorgan ................................................................................. 1 

Statement of Senator Inouye .................................................................................. 4 

Prepared statement .......................................................................................... 5 

Statement of Senator Murkowski ........................................................................... 6 

Prepared statement .......................................................................................... 6 

WITNESSES

Apoliona, Hon. Haunani, Chairperson, Board of Trustees, Office of Hawaiian 

Affairs .................................................................................................................... 15 

Prepared statement .......................................................................................... 18 

Bartolomucci, H. Christopher, Partner, Hogan & Hartson LLP ......................... 47 

Prepared statement .......................................................................................... 49 

Benjamin, Stuart M., Douglas B. Maggs Professor of Law, Associate Dean 

for Research, Duke Law School .......................................................................... 30 

Prepared statement .......................................................................................... 33 

Danner, Robin Puanani, President/CEO, Council for Native Hawaiian Advancement; accompanied by Steven Joseph Gunn, Attorney and Adjunct 

Professor of Law, Washington University in St. Louis ..................................... 51 

Prepared statement .......................................................................................... 53 

Hirsch, Hon. Sam, Deputy Associate Attorney General, U.S. Department of 

Justice ................................................................................................................... 7 

Prepared statement .......................................................................................... 9 

Kane, Hon. Micah A., Chairman, Hawaiian Homes Commission ....................... 45 

Prepared statement .......................................................................................... 46 

APPENDIX

Bennett, Hon. Mark J., Attorney General, State of Hawaii, prepared statement ...................................................................................................................... 124 

Burgess, H. William, Founder, Aloha for All, prepared statement ..................... 116 

Coburn, MD, Hon. Tom A., U.S. Senator from Oklahoma, prepared statement 73 

Gunn, Steven Joseph, Attorney and Adjunct Professor of Law, Washington 

University in St. Louis, prepared statement ..................................................... 75 

Kaaa, Stephen, President, Native Hawaiian Chamber of Commerce, prepared 

statement with attachment ................................................................................. 112 

Loa, Hon. Maui, Chief, Hou Band of native Hawaiian Indians of the Blood 

of Hawaii, prepared statement with attachment .............................................. 89 

Response to written questions submitted by Hon. Byron L. Dorgan to H. 

Christopher Bartolomucci .................................................................................... 178 

Van Norman, Mark, Member, Cheyenne River Sioux Tribe (Lakota) of South 

Dakota, prepared statement ................................................................................ 99 

Additional prepared statements and supplementary information submitted 

for the record: 

Aki, Zuri, prepared statement ......................................................................... 138 

Alexander, Hon. Lamar, U.S. Senator from Tennessee, article .................... 150 

Arakaki, Earl, prepared statement ................................................................. 140 

Arizona Republic Editorial ............................................................................... 153 

Boston Herald editorial staff, article .............................................................. 154 

Chapman, Tim, article ..................................................................................... 154 

Clegg, Roger, article ......................................................................................... 155 

Page

IV 

Additional prepared statements and supplementary information submitted 

for the record—Continued 

Fein, Bruce, article ........................................................................................... 170 

Foster, Shelby, prepared statement ................................................................ 136 

Fukuda, Robert K., letter ................................................................................. 176 

Gessing, Paul J., letter ..................................................................................... 175 

Gibson, Michael W., prepared statement ....................................................... 134 

Kravet, Toby M., prepared statement ............................................................. 137 

Kuroiwa, Jr., James I., prepared statement ................................................... 122 

Letters to the Editor, The Honolulu Advertiser ......................................... 157–169 

Macdonald, Tom, prepared statement ............................................................ 148 

Shapiro, Ilya, articles and legal brief ............................................................. 141 

Smith, Garry P., prepared statement ............................................................. 140 

U.S. Commission on Civil Rights, prepared statement ................................. 172 

Written questions submitted by Hon. Byron L. Dorgan to ..................................

Stuart M. Benjamin .......................................................................................... 190 

Hon. Sam Hirsch .............................................................................................. 188 

(1) 

NATIVE HAWAIIAN GOVERNMENT 

REORGANIZATION ACT 

THURSDAY, AUGUST 6, 2009 

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:28 p.m. in room 

628, Dirksen Senate Office Building, Hon. Byron L. Dorgan, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. I am going to call the hearing to order. 

This is a legislative hearing on the Senate Indian Affairs Committee Senate Bill 1011, the Native Hawaiian Government Reorganization Act of 2009. The bill outlines the process for the reorganization of a Native Hawaiian government for the purposes of reestablishing a government-to-government relationship with the 

United States. It also reaffirms that the Native Hawaiian people 

have the right to provide for their common welfare and to adopt an 

appropriate governing document or series of documents as they reorganize the government. 

We as Congress have a distinct and undeniable trust responsibility toward the First Americans of the United States, and with 

the passage of this legislation, the Native Hawaiian people will 

once again have an opportunity for self-governance and self-determination. This, I think, is an important step for our Country in an 

attempt to redress the wrongs that our Government has committed 

against the Native Hawaiian people. 

Congress has reaffirmed the rights of self-determination and selfgovernment for many tribes in the lower 48 States and in Alaska. 

Native Hawaiians have been absent in these efforts, and the time 

has come for us to initiate this proposed process for their people. 

While other indigenous groups can utilize the administrative 

process for Federal recognition, that administrative process is not 

available to Native Hawaiians. Moreover, that process was designed to evaluate Native American groups in the continental 

United States. So my colleagues and friends from Hawaii have introduced similar legislation to S. 1011 since the 106th Congress. 

Each of these proposals has afforded our Committee an ample 

record regarding this legislation. Over the past few years, a great 

number of compromises have been made by our colleagues and 

many are reflected in the legislation before the Committee today. 

2 

These changes have addressed many concerns, but maintain the ultimate goal of establishing a process to reorganize a Native Hawaiian government. 

It is important to note that this will not be the first time that 

Congress has recognized Native Hawaiians as the indigenous people of Hawaii. Congress enacted more than 150 statutes dealing 

with Native Hawaiians, providing evidence of an important relationship and providing them with certain benefits and reaffirming 

our obligations to Native Hawaiians. 

In addition, in 1993, Congress passed the Native Hawaiian Apology Resolution. I am sure that the Senators from Hawaii will better describe the history of this relationship and in much greater detail, showing that Native Hawaiians clearly had a previous political 

relationship with this Country. While I strongly prefer that our indigenous groups go through the Federal acknowledgement process, 

Native Hawaiians have a long history of a similar but distinct relationship with the United States. This bill will provide Native Hawaiians greater autonomy in determining their internal affairs and 

responsibility for their common welfare and their future economic 

and social development. 

I have joined as a co-sponsor, as I have in the past, for this legislation. Our colleagues, Senator Akaka and Senator Inouye, have 

worked on this legislation. We will be hearing from witnesses 

today, but before we do, I wish to call on any other member of the 

Committee to make comments on the bill, particularly our two Senators from Hawaii. But first, let me call on the Vice Chairman, if 

you have comments. 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you, Mr. Chairman. I do have comments. I will just insert them for the record so as not to delay the 

testimony of our friends. 

[The prepared statement of Senator Barrasso follows:] 

PREPARED STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR FROM WYOMING

Thank you, Mr. Chairman. 

Versions of this bill have come before the Indian Affairs Committee in at least 

five previous Congresses, beginning in the 106th Congress. 

I appreciate that it is a matter of considerable importance for Senators Akaka and 

Inouye, and for many Native Hawaiian people. 

Based on the correspondence we have been getting, I think it’s fair to say that 

there are strong feelings about this initiative—both for it and against it. 

There are those who support or oppose it on policy grounds, and those who support or oppose it on legal or constitutional grounds. 

Whether a particular group may be recognized as an Indian tribe by the Federal 

Government involves difficult questions—questions of ethnographic, cultural and 

historic facts. 

Determining those facts requires a detailed scholarly inquiry. I do not believe 

there are many circumstances that would justify foregoing a detailed inquiry and 

having Congress simply deem a group to be an Indian tribe—or, in this case, the 

functional equivalent of an Indian tribe. 

I cannot help but ask whether it would be preferable to have that decision go 

through a detailed inquiry in an executive agency. Nevertheless, our witnesses 

today seem to represent a broad spectrum of views on Senator Akaka’s bill, and I 

look forward to hearing their remarks. 

3 

The CHAIRMAN. Senator Akaka, would you wish to make comments? 

Following the comments, we will then introduce the witnesses. 

STATEMENT OF HON. DANIEL K. AKAKA, 

U.S. SENATOR FROM HAWAII 

Senator AKAKA. Thank you very much, Chairman Dorgan and 

Vice Chairman Barrasso. Thank you for holding today’s hearing. 

I want to add my aloha and welcome to our witnesses and those 

who are present here. 

As members of the Senate Committee on Indian Affairs, we have 

jurisdiction to examine and address the needs of our Country’s indigenous people. This specifically includes Native Hawaiians, Alaska Natives, and American Indians. 

The United States has not always acted honorably in its treatment of our Nation’s First People. However, I am proud that as a 

Country we have pursued actions acknowledging past wrongs and 

building a mutual path forward. It has been the work of this Committee and Congress to advance policies that uphold Native rights 

and their ability to exercise self-governance and self-determination. 

The legislation before us today provides parity. It enables Hawaii’s indigenous people to establish a government-to-government 

relationship with the United States. This political and legal relationship is the same type of relationship natives of Alaska and 

tribes in the lower 48 States have with the United States. 

Further, the process is consistent with the Constitution, Federal 

and State laws. Those that are not familiar with the history of Hawaii may wonder why such a process is needed. It is needed because in 1893, the Native Hawaiian government, led by Queen 

Lili’uokalani, was illegally overthrown. It was done with participation by agents of the U.S. and the U.S. military force. At the time, 

President Grover Cleveland characterized America’s conduct as an 

‘‘act of war’’ against the Native Hawaiian people and called for the 

Queen to be reinstated. 

The overthrow resulted in generations of Native Hawaiians being 

disenfranchised from their government, culture, land and their way 

of life. S. 1011 provides a structured process to reorganize a Native 

Hawaiian governing entity to exercise self-governance and self-determination. Once federally recognized, the Native Hawaiian governing entity can enter into discussions with the State of Hawaii 

and the United States. Any agreements reached by the three parties will require implementing legislation at the State and Federal 

level. 

This bill does not allow for private lands or businesses to be 

taken, and does not permit Hawaii to secede from the Union. Further, it does not authorize gaming in Hawaii. Rather, this bill provides the structure necessary for meaningful interaction between 

Native Hawaiians and non-Native Hawaiians, especially as policies 

are formed and implemented. Such actions enable us to honor the 

needs of our State, preserve its cultural heritage, and address issue 

that have lingered without resolution since the overthrow of the 

kingdom of Hawaii. 

The United States recognized and maintained a trust responsibility for the welfare of Native Hawaiians. As was mentioned, to 

4 

date, Congress has enacted more than 160 statutes to address the 

needs of Native Hawaiians. This includes a measure I sponsored, 

commonly known as the Apology Resolution, that was enacted into 

law in 1993. In the resolution, the United States apologized for its 

involvement in the overthrow, as well as committed itself to acknowledge the ramifications of the overthrow and support reconciliation efforts between the United States and the Native Hawaiian 

people. 

Reconciliation is a means for healing, enabling an ongoing dialogue that empowers us to address the political status and rights 

of Native Hawaiians. In order to implement the reconciliation process, in 1999, Attorney General Janet Reno and Secretary Bruce 

Babbitt designated officials to represent the Departments of Justice 

and the Interior in the reconciliation process between Native Hawaiians and the Federal Government. These officials traveled 

throughout the State of Hawaii, held public meetings with the Native Hawaiian community and produced a report entitled From 

Mauka to Makai: The River of Justice Must Flow Freely. 

This comprehensive report identified crucial steps the Federal 

Government should take to continue the process of reconciliation, 

including the recommendation to extend Federal recognition. Specifically, the report stated ‘‘As a matter of justice and equity, the 

Departments believe the Native Hawaiian people should have selfdetermination over their own affairs, within the framework of Federal law, as do Native American Tribes.’’ 

The legislation we are considering today allows us to take the 

necessary next step in the reconciliation process. S. 1011 is constitutional and provides a framework with respect of the needs of 

Native Hawaiians and non-Native Hawaiians. Their combined efforts will be needed as each will play an active role in reaching 

agreement and enacting implementing legislation at the State and 

Federal levels. 

Federal recognition of Native Hawaiians is supported by a majority of people in Hawaii, including the Governor, the State Attorney 

General, the State legislature and numerous Native and non-Native organizations. In Washington, D.C., S. 1011 is a bipartisan bill 

with the support of national organizations, including the American 

Bar Association, National Congress of American Indians and Alaska Federation of Natives. 

Mr. Chairman, I look forward to building upon the established 

record as we proceed with the tenth hearing this Committee has 

held on the issue of Native Hawaiian governance. 

The CHAIRMAN. Senator Akaka, I thank you very much. 

Senator Inouye? 

STATEMENT OF HON. DANIEL K. INOUYE, 

U.S. SENATOR FROM HAWAII 

Senator INOUYE. Mr. Chairman, I thank you and Vice Chairman 

Barrasso for scheduling this very important hearing on the Akaka 

bill. We have waited many, many years for this. 

Mr. Chairman, I ask unanimous consent that my full statement 

be made part of the record. 

The CHAIRMAN. Without objection. 

[The prepared statement of Senator Inouye follows:] 

5 

PREPARED STATEMENT OF DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

I would like to thank Chairman Dorgan and Vice Chairman Barrasso for scheduling this important hearing today on a bill that Senator Akaka and I have worked 

tirelessly on for the past 10 years. 

So much of what we are here to consider today arises from events that took place 

long ago. On January 16, 1895, the United States Minister John L. Stevens, who 

served as the Ambassador to the court of Queen Liliuokalani, directed a marine 

company on board the U.S.S. BOSTON to arrest and detain Queen Liliuokalani. She 

was placed under house arrest in her bedroom at Iolani Palace for nine months. 

This event was engineered and orchestrated by the Committee of Public Safety, 

which consisted of Hawaii’s non-Native Hawaiian businessmen, and with the approval of Minister Stevens. President Grover Cleveland appointed James Blount to 

conduct a special investigation in Hawaii and write up his findings. His report was 

the first report that provided ‘‘evidence that officially identified the United States’ 

complicity in the lawless overthrow of the lawful, peaceful government of Hawaii.’’ 

In contrast to the Blount report a year later the Senator John T. Morgan, Chairman 

of the Committee on Foreign Relations also issued an investigative report that said 

the United States did no wrong. This was clearly written to exonerate the parties 

involved. 

On January 17, 1895, Queen Liliuokalani temporarily yielded her authority to the 

United States. A new government, the Republic of Hawaii, was established and requested annexation by the United States. But after examining the circumstances 

and events leading to the illegal overthrow, President Cleveland refused to annex 

the Republic. In 1898, President McKinley, unable to obtain the necessary Senate 

consent to ratify a treaty of annexation, signed a Joint Resolution annexing Hawaii 

as a United States’ territory. 

As part of the annexation agreement, former crown lands were transferred to the 

United States. Discussions on the status of Native Hawaiians immediately began 

throughout Hawaii, for this was their land, their government, and their people, but 

they were now outcasts. In 1921, Hawaii’s delegate to Congress, Prince Jonah Kuhio 

Kalanianaole, led Congress in enacting the Hawaiian Homes Commission Act of 

1920. In adopting this Act, Congress compared its relationship with Native Hawaiians to its relationship with Indian tribes and relied on this special relationship to 

return certain crown lands to the Territory for the benefit of Native Hawaiians. 

For those of us born and raised in Hawaii, as I was, we have always understood 

that the Native Hawaiian people have a status that is unique in our State. This 

status is enshrined in our State Constitution and is reflected in the laws of our 

State. It is found in well over 188 federal statutes including the Hawaii Admissions 

Act. This unique status reflects our deep gratitude to the native people who first 

welcomed is to their shores and who gave us the opportunity to live in their traditional homelands. 

Mr. Chairman, in my 30 years of service on this committee, I have been fortunate 

to learn a bit about the history of our country and its relations with the indigenous, 

native people, who occupied and exercised sovereignty on this continent. 

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. We 

have been firm in our resolve to uphold that policy. 

Native Hawaiians have had a political and legal relationship with the United 

States for the past 183 years as shown through treaties (30) with the United States 

and other sovereign governments and entities, and scores of federal statutes (188). 

But like tribes whose federally recognized status was terminated, Hawaii’s monarchy was also terminated. Even after the Native Hawaiian government was illegally overthrown, the Native Hawaiian people never gave up their expression of political status through the Royal Societies and later through the Hawaiian Civic 

clubs. Through these groups cultural, political, social and activities and relationships unique to the Native Hawaiian people were kept in tact. 

As one who has served the citizens of Hawaii for over 50 years, as a member of 

the Territorial Legislature, a member of Congress, and now a member of the United 

States Senate, I believe that there is broad based support in our State for what the 

Native people are seeking, full restoration of the government to government relationship they had with the United States. 

6 

Lastly, the courts have concluded that termination can only be reversed by an act 

of Congress. Reconciliation is long overdue and I look forward to continuing to work 

with the Administration and my colleagues to ensure that the Native Hawaiian people are given their right to self-determination and self-governance back. 

The CHAIRMAN. Senator Murkowski? 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. I would ask unanimous consent that my 

full statement be included in the record, but I also want to take 

just a moment and let my Hawaiian colleagues know that, for yet 

another round, the Alaskans will stand by you as we try to advance 

this important legislation for recognition of Native Hawaiians. It is 

something that we have been working on for many years. I think 

some of the questions that come up about, well, how will this work 

in Hawaii, can be resolved when you look to how we have handled 

the recognition of our Alaska Natives. 

Please know that I will be working with you as we advance this 

legislation. 

[The prepared statement of Senator Murkowski follows:] 

PREPARED STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM ALASKA

Thank you Chairman Dorgan. Senators Inouye and Akaka, I appreciate having 

the opportunity to support you today as the Senate Committee on Indian Affairs 

holds a hearing on the Native Hawaiian Government Reorganization Act. Alaska 

and Hawaii both joined the union in 1959. In 2009, both Alaska and Hawaii are 

celebrating the 50th anniversary of Statehood. This marker in history forces us to 

reflect on history and the history of the indigenous people of our States. They are 

a people that share a special relationship to the land that today we recognize as 

the states of Alaska and Hawaii. 

As you know, Alaska Natives and Native Hawaiians share a special relationship. 

It was only 38 years ago that in 1971, this Congress enacted the Alaska Native 

Land Claims Settlement Act. While the legislation before us today is different in nature, it addresses a fundamental issue of how the United States establishes its relationship with its indigenous peoples. ANCSA settled the aboriginal land claims of 

the indigenous people of Alaska after some 100 years of legal uncertainty. 

History has not been more kind to the indigenous people of the State of Hawaii, 

whose Kingdom was overthrown, and lands annexed by the United States in 1893. 

In 1993, at the 100 year anniversary of a devastating history for Native Hawaiians, 

President Clinton signed into law an Apology Resolution recognizing the historical 

events of the annexation of the Kingdom of Hawaii. The resolution expressed a commitment to support reconciliation efforts between the Native Hawaiian people and 

the United States. 

This Committee has held hearings in last several Congresses and we have debated similar legislation on the Senate floor. Dissenters in this debate questioned 

the existence of a Native Hawaiian people. One certain truth is the existence of the 

Native Hawaiian people who have a rich cultural history that has continued since 

time immemorial. 

I mentioned a special relationship between Alaska Natives and the Native Hawaiians—that relationship is built in the support the two communities have provided 

to each other to strengthen their communities. They have found a strength in each 

other to face the social challenges impressed upon Native people. I would like to 

elaborate on this relationship. Fundamental to every culture is language. Many of 

our Alaska Native communities have been vigorous in preserving their indigenous 

languages. In Alaska we have many dialects within the Eskimo and Indian languages. Many Alaska Native leaders and Native educators have sought to find ways 

to revitalize their Native languages. In doing so, they have looked to the Native Hawaiians. 

Native Hawaiians have been successful in keeping alive the Native Hawaiian language, through immersion schools at the pre-school level to Masters level university 

programs enabling one to receive an entire formal education in Hawaiian. I reference the status of language for a very important reason—the root of every culture 

7 

is language—when a language is strong and vibrant so is a culture—within a native 

language, the cultural protocols and customs are preserved and appropriately expressed. 

If you question the existence of Native Hawaiian people—you find a people with 

a strong culture, deep in tradition and custom, and a language that is alive among 

the Native Hawaiian community. The Constitution of the State of Hawaii has two 

official languages—English and Hawaiian. Such a recognition by the State of Hawaii is far beyond any other States in this union that have indigenous peoples within their borders. 

This Senator believes there should be no doubt on the question of the existence 

of Native Hawaiians. They are the indigenous people of the State of Hawaii. Congress has recognized Native Hawaiians in legislation over 100 times, providing similar health and housing programs as those provided to American Indians and Alaska 

Natives. 

This Nation is built on the notion of justice and equality as expressed in our 

founding documents. It is a notion that when the events of humanity and history 

recognize a grave injustice that there is hope this Congress will act to correct such 

injustices. The legislation before us today provides a process for Native Hawaiians 

to re-establish a governing body and equally recognize a government to government 

relationship that is shared with the other indigenous peoples in the United States— 

American Indians and Alaska Natives. 

Our experience in Alaska with the Alaska Native Land Claims Settlement Act 

and the Native institutions that have been created since its passage in 1971 have 

empowered the Native people of Alaska—politically through the self-determination 

compacts and contracts entered into with the United States by our regional health 

and social service non-profit corporations and economically though our Native corporations. I would encourage those who have doubts in their mind regarding the legislation before us today—to look toward the history of the Alaska Native people. I 

look forward to hearing the testimony provided by our witnesses today. 

The CHAIRMAN. Any other comments? 

If not, we will call the Honorable Sam Hirsch, the Deputy Associate Attorney General of the U.S. from the Department of Justice 

forward. 

Mr. Hirsch, we will include your formal statement as a part of 

the permanent record. You will summarize for the Committee, I 

hope, and we are very pleased you are here. I understand you have 

some family here, your wife and children have accompanied you to 

this hearing, is that correct? 

Mr. Hirsch. Yes, Senator, it is. 

The CHAIRMAN. You are welcome to point them out and brag 

about them, if you like. 

[Laughter.] 

Mr. Hirsch. Thank you. Yes, that’s my wife, Karin, and my 

daughters, Julia and Charlotte. 

The CHAIRMAN. We welcome you and you may proceed. 

STATEMENT OF HON. SAM HIRSCH, DEPUTY ASSOCIATE 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. HIRSCH. Thank you, Chairman Dorgan, Vice Chairman Barrasso and members of the Committee, for the opportunity to testify 

today regarding Senate Bill 1011, the Native Hawaiian Government Reorganization Act of 2009, as well as the companion bill, 

H.R. 2314, now pending in the House. 

I am particularly honored to appear today before Senator Inouye 

and Senator Akaka. Senator Inouye gave me one of my first opportunities for public service when I had the honor of working for a 

select committee that he and Senator Rudman co-chaired back in 

1987, and for that, Senator, I will always be very grateful. 

8 

The Department of Justice strongly supports the core policy goals 

of this bill. And I am very pleased to testify on this historic legislation today. It is our understanding that the bill’s sponsors and cosponsors in the Senate and House are continuing to develop the 

legislation’s precise parameters, so I will focus here on the broad 

principles embodied in these bills, rather than some of the details 

that may still be in flux. 

The Supreme Court has long held that Congress has broad plenary power to recognize Indian tribes. The Court has characterized 

Indian tribes as ‘‘distinct political communities retaining their 

original natural rights in matters of local self-government.’’ When 

it upheld Congress’ treatment of the Pueblos of New Mexico as Indian tribes, the Court explained that ‘‘the questions whether, to 

what extent, and for what time distinctly Indian communities shall 

be recognized and dealt with as tribes are to be determined by Congress, not by the courts.’’ 

But Congress’ plenary power to recognize tribes does not mean 

that it ‘‘may bring a community or body of people within the range 

of this power by arbitrarily calling them an Indian tribe.’’ 

As for Native Hawaiians specifically, the Supreme Court has 

never decided whether Congress has the authority to treat the Native Hawaiian community in the same manner as an Indian tribe. 

Indeed, in its 2000 decision in Rice v. Cayetano, the Court expressly avoided that question, calling it ‘‘difficult terrain.’’ And in 

the decade since the Supreme Court decided Rice, no court has 

squarely addressed that issue. 

In recognizing a Native Hawaiian sovereign entity, then, Congress would in effect determine that Native Hawaiians constitute 

a distinct Native community akin to an Indian tribe. And the general history of the Native Hawaiian people bears significant similarities to the history of Indian tribes. Despite numerous obstacles, 

Native Hawaiians have a sustained history of acting collectively 

and creating institutions to preserve traditional Native Hawaiian 

forms of social organization, religious practice, family and cultural 

identity, and other distinctive cultural practices. 

These institutions and organizations include, among many others, the Royal Societies, formed after the fall of the Hawaiian monarchy, the Hawaiian Civic Clubs, the Native Hawaiian Sovereignty 

Conference, and the Hawaiian Protective Association, a political organization established in 1914 with a constitution and bylaws that 

sought to unify Native Hawaiians and protect their common interests, to promote the education, health, and economic development 

of Native Hawaiians; and to address disputes within the Native 

Hawaiian community. 

And the United States Congress has repeatedly given legal recognition and legal status to those distinctive Native Hawaiian institutions. In 1921, Congress enacted the Hawaiian Homes Commission Act to establish a permanent land base for the benefit and 

use of Native Hawaiians, thereby reversing the decline in the Native Hawaiian population and revitalizing the Native Hawaiian 

community. 

In the legislative history of that 1921 Act, members of Congress 

repeatedly noted the similarities between Native Hawaiians and 

Indian tribes. Since that time, Congress has enacted more than 100 

9 

Federal statutes expressly recognizing Native Hawaiian tradition 

and culture and providing benefit programs for Native Hawaiians 

similar to those provided to other Native people. None of those 

statutes has been struck down as unconstitutional. And collectively, these Congressional enactments have provided Native Hawaiians with significant benefits in the areas of health care, education, and housing, among others. 

Again, I want to express my thanks for the opportunity to appear 

before the Committee to discuss these important issues. As I noted 

at the outset, the Department of Justice strongly supports the core 

policy goals of the Native Hawaiian Government Reorganization 

Act of 2009 and looks forward to working with you as the bill’s specific language further evolves. 

We are very pleased to have the opportunity to work with this 

Committee and with the bill’s sponsors and co-sponsors and their 

staff in developing this historic legislation. 

[The prepared statement of Mr. Hirsch follows:] 

PREPARED STATEMENT OF HON. SAM HIRSCH, DEPUTY ASSOCIATE ATTORNEY

GENERAL, U.S. DEPARTMENT OF JUSTICE

Thank you, Chairman Dorgan, Vice Chairman Barrasso, and Members of the 

Committee, for the opportunity to testify before you today regarding S. 1011, the 

Native Hawaiian Government Reorganization Act of 2009, as well as the companion 

bill, H.R. 2314, now pending in the House of Representatives. It is our understanding that the bill’s sponsors and cosponsors are continuing to develop the legislation’s precise parameters, so I will focus here on the broad principles embodied 

in these bills, rather than some of the details that may still be in flux. 

The Department of Justice strongly supports the core policy goals of this bill, and 

I am pleased to testify on this historic legislation. My remarks highlight some background considerations relevant to Native Hawaiian recognition legislation and discuss some important provisions in the bill. 

I. Authority to Recognize Indian Tribes Generally 

The Supreme Court has long held that Congress has broad power to recognize Indian tribes. As the Court stated in United States v. Lara, 541 U.S. 193, 200 (2004), 

‘‘the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’ ’’ 

In Morton v. Mancari, 417 U.S. 535, 551–52 (1974), the Court observed that 

Congress’s ‘‘plenary power’’ to recognize and legislate on behalf of Indian tribes ‘‘is 

drawn both explicitly and implicitly from the Constitution itself’’ and is based on 

‘‘a history of treaties and the assumption of a ‘guardian-ward’ status.’’ 

More specifically, the Federal Government derives its power to deal with the Indian tribes primarily from the Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 

3, which explicitly gives Congress the power to regulate commerce not only among 

the States and with foreign nations but also with ‘‘the Indian Tribes,’’ and the Treaty Clause, U.S. Const. art. II, § 2, cl. 2. The Federal Government’s authority to deal 

separately with the Indian tribes is thus grounded in two constitutional provisions 

that recognize the Indian tribes as sovereign political entities. 

The Supreme Court has numerous times defined tribes based on this concept of 

sovereignty. Most recently, in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 

(1978), the Court described Indian tribes as ‘‘ ‘distinct, independent political communities, retaining their original natural rights’ in matters of local self-government.’’ 

Congress’s power to recognize Indian tribes extends to tribes that have had aspects of their sovereignty diminished. For example, in United States v. John, 437 

U.S. 634, 652–53 (1978), the Supreme Court upheld the Federal Government’s ability to deal with the Mississippi Choctaws, even though federal supervision over 

them had not been continuous and there were times when the State’s jurisdiction 

over them and their lands went unchallenged. Similarly, in Lara, 541 U.S. at 200– 

07, the Court upheld Congress’s authority, in the wake of Duro v. Reina, 495 U.S. 

676 (1990), to relax limitations on tribes’ exercise of inherent prosecutorial power 

over non-member Indians. 

The Indian Affairs power encompasses ‘‘distinctly Indian communities.’’ United 

States v. Sandoval, 231 U.S. 28, 46 (1913). The Supreme Court, in upholding 

10 

Congress’s treatment of the Pueblos of New Mexico as tribes, cautioned that 

Congress’s plenary authority over tribes does not mean that it ‘‘may bring a community or body of people within the range of this power by arbitrarily calling them an 

Indian tribe.’’ Id. Nonetheless, within these limits, the Court has found that ‘‘the 

questions whether, to what extent, and for what time [distinctly Indian communities] shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and 

not by the courts.’’ Id. 

II. Authority to Recognize Native Hawaiians—Rice v. Cayetano 

Any discussion of the power of the State of Hawaii and Congress regarding Native 

Hawaiians must begin with Rice v. Cayetano, 528 U.S. 495 (2000). Rice involved a 

challenge to a provision in the Hawaii State Constitution limiting the right to vote 

for the trustees of the Office of Hawaiian Affairs (OHA) to ‘‘Hawaiians.’’ This term 

was defined by state statute as ‘‘any descendant of the aboriginal peoples inhabiting 

the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii.’’ 

The Court held that the voting provision violated the Fifteenth Amendment. 

Importantly, the Court did not reach the question whether Congress has the authority to treat Native Hawaiians in the same manner as members of an Indian 

tribe. Instead, the Court held that because the OHA elections were ‘‘elections of the 

State, not of a separate quasi sovereign,’’ they were ‘‘elections to which the Fifteenth 

Amendment applies.’’ Id. at 522 (emphasis added). The Court thus avoided what it 

called the ‘‘difficult terrain’’ of ‘‘whether Congress may treat the native Hawaiians 

as it does the Indian tribes.’’ Id. at 518–19. And since the Supreme Court decided 

Rice, nearly a decade ago, no court that we are aware of has squarely addressed 

that issue. 

III. History of Native Hawaiian Sovereignty and Self-Government 

In recognizing a Native Hawaiian sovereign entity, Congress would in effect determine that Native Hawaiians constitute a distinct community as it has done with 

Indian tribes. The history of Native Hawaiian sovereignty and the extent to which 

Native Hawaiians continue to function as an organized community—engaging in collective action and preserving traditional community and culture—are relevant to 

this analysis. 

The general history of the Native Hawaiian people bears significant similarities 

to the history of Indian tribes. Prior to the arrival of western explorers, Native Hawaiians exercised self-rule. Traditionally, each island was controlled by a chief, 

known as an Ali’I ‘ai moku, and a hierarchy of lesser chiefs (Ahupua’a konohiki) and 

priests (Kahuna nui). In the early nineteenth century, King Kamehameha united 

the separate island chiefdoms under one government, creating the Hawaiian monarchy. The United States recognized the Kingdom of Hawaii as a sovereign power 

and dealt with it as such through much of the nineteenth century. In fact, the two 

nations executed several treaties and conventions. Then, in 1893, commercial interests, with the support of the United States military, overthrew the Hawaiian monarchy. In 1993, Congress enacted a resolution formally apologizing for the role of 

the United States in that overthrow. See Pub. L. 103–150, 107 Stat. 1510 (1993). 

Despite the overthrow of the monarchy, a community of Native Hawaiians continued to act collectively to preserve their culture and institutions in many ways, and 

the United States and the State of Hawaii gave a variety of forms of legal recognition and legal status to those distinctive institutions and culture. 

A. Federal and State Protection of Native Hawaiian Autonomy and Culture 

In 1921, Congress enacted the Hawaiian Homes Commission Act (HHCA), Act of 

July 9, 1921, ch. 42, 42 Stat. 108. The law sought to ‘‘establish a permanent land 

base for the benefit and use of Native Hawaiians’’ and to ‘‘make alienation of such 

land [from the Native Hawaiians]... impossible,’’ 1990 Haw. Sess. Laws, Act 349, 

thereby stopping the decline in the Native Hawaiian population and revitalizing the 

Native Hawaiian community. One supporter of the legislation said, in explaining the 

need for the Act, that ‘‘[t]he idea in trying to get the land back to some of the Hawaiians is to rehabilitate them.... The only way to save them is to take them 

back to the lands.’’ H. Rep. No. 66–839, at 3–4 (1920). Similarly, Hawaiian Delegate 

Kananianaole stated, ‘‘I am a believer in giving the small man a piece of land and 

assisting him to become a prosperous member of the community. There is no patriotism so great as that which is rooted in the soil. I am a believer in and have been 

consistent in the policy of home rule.’’ 59 Cong. Rec. 7455 (May 21, 1920). 

The HHCA set aside 1.2 million acres of land—land originally controlled by the 

Hawaiian monarchy—for the betterment of Native Hawaiians. These lands are inalienable and are available to certain descendants of the persons inhabiting the HaVerDate Nov 24 2008 13:37 Oct 05, 2010 Jkt 054811 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\DOCS\54811.TXT JACK PsN: JACKF
11 

waiian Islands in 1778. Significantly, the legislative history of the HHCA indicates 

that Congress, in establishing this program, recognized the similarity between Native Hawaiians and Indian tribes. For example, Hawaii Territorial Senator John 

Wise asserted that the United States had a duty to assist Native Hawaiians, and 

he cited land grants to Indian tribes as precedent for the HHCA. See H.R. Rep. 66– 

839, at 4–7, 11. He also considered programs that had been developed to assist other 

indigenous groups. Id. Former Interior Secretary Franklin Lane stated that the 

United States had a responsibility to help Native Hawaiians and compared the 

plight of Native Hawaiians to that of other Native Americans. See id. at 4–5. Similarly, Oregon Senator George Chamberlain compared Native Hawaiians to Indian 

tribes. See Hearing on H.R. 13500 Before the Committee on Territories, 66th Cong., 

3d Sess. 23 (Dec. 14, 1920). Finally, like Senator Wise, the witness Rev. Akaiko 

Akana compared the HHCA to federal efforts to assist Native Americans. Id. at 53. 

State and federal authorities have recognized Native Hawaiian tradition and culture through other enactments. For example, the Federal Government set aside and 

protected the North West Hawaiian Islands in part due to their cultural and traditional significance. Proclamation No. 8031, 50 C.F.R. § 404.1. Since the early 1970s, 

Congress has enacted many statutes providing benefit programs for Native Hawaiians similar to those provided to other native people, such as section 4006(a)(6) of 

the National Historic Preservation Act, 16 U.S.C. § 470a(d)(6), which provides particular protection to properties with religious and cultural importance to Indian 

tribes and Native Hawaiians; the Native Hawaiian Education Act, 20 U.S.C. 

§ § 7901–7912, which establishes programs to facilitate the education of Native Hawaiians; and Title VIII of the Native American Housing Assistance and Self-Determination Act, 25 U.S.C. § § 4221–4239. In addition, various provisions of the Hawaii 

State Constitution, state statutes, and State Supreme Court opinions ensure access 

to timber, water, and other resources with traditional significance based on ancient 

custom and usage. Traditional Native Hawaiian fishing and gathering rights also 

are protected. Moreover, in 1990, the State adopted measures to protect Native Hawaiian traditional burial sites. As stated above, such sites also are protected under 

the 1990 Native American Graves Protection and Repatriation Act, which protects 

American Indian, Alaska Native, and Native Hawaiian gravesites. Finally, the State 

of Hawaii created the Office of Hawaiian Affairs, whose mission is to protect Native 

Hawaiian interests. 

B. Native Hawaiian Self-Governance 

Native Hawaiians also have a sustained history of creating institutions to preserve traditional Native Hawaiian forms of social organization, religious practice, 

family and cultural identity, and other distinctive cultural practices. For example, 

the Hawaiian Protective Association was established in 1914 ‘‘for the sole purpose 

of protecting the Hawaiian people and of conserving and promoting the best things 

of their tradition.’’ Hearing on H.R. 13500 Before the Committee on Territories, 66th 

Cong., 3d Sess. 44 (Dec. 14, 1920) (statement of Rev. Akaiko Akana). The Association was a political organization with bylaws and a constitution that sought to 

maintain unity among Native Hawaiians, to protect Native Hawaiian interests, to 

promote the education, health, and economic development of Native Hawaiians, and 

to address disputes within the Native Hawaiian community. To this end, the Association established 12 standing committees and published a newspaper. The Association developed the framework that became the HHCA. 

In addition, in 1918, Prince Kuhio, Hawaii’s delegate to Congress, founded the 

Hawaiian Civic Clubs, whose goal was ‘‘to perpetuate the language, history, traditions, music, dances and other cultural traditions of Hawaii.’’ McGregor, Aina 

Ho’opulapula: Hawaiian Homesteading, 24 Hawaiian J. Hist. 1, 5 (1990). These civic 

organizations worked to secure enactment of the HHCA, and they remain in existence today. 

In addition, Royal Societies, formed after the fall of the monarchy, also remain 

in existence today and continue to hold political and cultural value to the Native 

Hawaiian community. Various trusts also have established and funded Native Hawaiian language programs and immersion schools, including the Bishop Trust, 

which is a trust formed from property of the last descendant of King Kamehameha 

for the education of Native Hawaiians. Other groups, such as the 1988 Native Hawaiian Sovereignty Conference and the Kau Inoa organization, have formed to recognize traditional Native Hawaiian sovereignty and to work towards recognition of 

a sovereign Native Hawaiian entity. 

12 

* The prepared statement referred to is printed in the Appendix. 

IV. Past Congressional Action Toward Recognizing a Native Hawaiian 

Sovereign 

As the Committee is well aware, the current legislation does not mark the first 

introduction of legislation designed to provide for Native Hawaiian recognition. Congress has given extensive consideration to this question. On two recent occasions— 

in the 106th and 110th Congresses—the House of Representatives passed recognition bills. In both those Congresses, this Committee also approved recognition bills. 

This Committee also reported recognition bills to the full Senate in the 107th and 

108th Congresses, although those bills ultimately did not receive a vote in either 

Chamber. In addition, in the 109th Congress, this Committee approved recognition 

legislation that was debated in the full Senate. We are heartened that the bill’s 

sponsors and cosponsors are continuing, nearly a decade after the legislation’s original introduction, to address these issues and to press ahead with this important 

project. 

V. Current Recognition Legislation 

The current legislation is the product of Congress’s sustained examination of the 

status of Native Hawaiians and has a number of features that reflect Congress’s 

close study of these questions. For example, the legislation contains provisions that 

specifically state that Congress does not intend to create any new legal claims 

against the United States. The Department supports these provisions and believes 

they should remain in the bill. In particular, the Department supports section 8(c) 

in S. 1011, which provides that nothing in the bill creates a cause of action against 

or waives the sovereign immunity of the United States. 

The Department also supports the bill’s civil-rights protections. Section 

7(c)(2)(B)(iii) (I)(cc) and section 7(c)(4)(A)(vi) require the Native Hawaiian governing 

entity, in its constitution or other organic governing document, to expressly protect 

the civil rights of Native Hawaiians and all other persons affected by the governing 

entity’s exercise of its governmental powers and authorities. Express civil-rights protections, as required by the Indian Civil Rights Act of 1968, have served Indian 

tribes, their members, and their neighbors well for many decades, while fully recognizing and respecting tribes’ inherent sovereignty. 

VI. Conclusion 

Thank you for the opportunity to appear before the Committee to discuss this 

issue. As I noted at the outset, the Department of Justice strongly supports the core 

policy goals of the Native Hawaiian Government Reorganization Act of 2009 and 

looks forward to working with you as the bill’s specific language further evolves. We 

are very pleased to have the opportunity to work with this Committee in developing 

this important legislation. 

The CHAIRMAN. Mr. Hirsch, thank you very much for being with 

us. 

Let me state that Senator Coburn has a statement that he wishes to submit for the record at this point, which we will then submit. * 

The CHAIRMAN. And let me also say that I have a Commerce 

Committee hearing, and by prior arrangement, Senator Akaka will 

be taking the chair of this Committee in just a few moments. 

Are there questions of Mr. Hirsch? Senator Akaka? 

Senator AKAKA. [Presiding.] Mr. Hirsch, the United States has 

federally recognized more than 560 Indian tribes. To date, no 

States have seceded from the Union, because their indigenous people have a government-to-government relationship with the United 

States. This has not occurred in the lower 48 nor Alaska. 

The legislation clearly spells out that agreements must be 

reached by the three governmental parties, and implementing legislation would need to be enacted. There are claims that Native 

Hawaiians would be able to secede. 

As you understand the bill, Mr. Hirsch, does the legislation permit secession? 

13 

Mr. HIRSCH. Senator Akaka, absolutely not. There is absolutely 

nothing in the legislation that I see that is remotely relevant to 

that alleged risk. 

Senator AKAKA. Thank you. 

Mr. Hirsch, upon enactment of Pub. L. 103–150, commonly 

known as the Apology Resolution, the United States committed 

itself to a process of reconciliation with the Native Hawaiian people. In fact, in an effort to further the reconciliation process, Attorney General Janet Reno and the Secretary of the Interior, Bruce 

Babbitt, designated senior officials to travel to Hawaii and conduct 

a fact-finding mission. 

The result of their efforts, as I mentioned in my opening statement, was a year 2000 joint DOJ and DOI report, which was called 

From Mauka to Makai. Can you briefly share some of the relevant 

facts or recommendations from the Mauka to Makai report, and 

what did it say about extending Federal recognition to Native Hawaiians? 

Mr. HIRSCH. Senator, I would be delighted to address that. And 

I think you are being modest. My understanding from reading the 

report is that Attorney General Reno and Secretary Babbitt developed the plan for this study after hearing from you about the plight 

of Native Hawaiians. I believe that was in March of 1999, and it 

set off a 19-month period of study involving, based on the bibliography of the report, a huge amount of reading, but also field hearings where staff from Interior and Justice went to Hawaii and met 

with countless folks who could tell them about the actual situation 

on the ground there. 

Since that time, I have seen the report cited by the Federal District Court in Hawaii, by the Ninth Circuit Court of Appeals, the 

Federal Appellate Court for Hawaii and other States, and by the 

Supreme Court of Hawaii. So it is an important report. One of the 

first things I read when I was starting to prepare for this hearing, 

frankly. 

I can’t vouch for every word in it. The Department has not taken 

a fresh look at that report in 2009, and it does begin with a page 

of legal disclaimers and other disclaimers. But that said, it basically had three sections. One was a report of history of Hawaii, 

similar to what was in your opening statement, but at greater 

length and quite nicely written, followed by a series of sub-chapters 

on current conditions in Hawaii. 

And one sentence that summarized that really caught my eye. It 

said, ‘‘The Native Hawaiian people, as a Native community, continue to suffer from economic deprivation, low educational attainment, poor health status, substandard housing, and social dislocation.’’ 

And finally, looking at the history and the current status, there 

were five recommendations, one of which was to continue the process of reconciliation, three of which dealt with actions to be taken 

by Interior or Justice, and I should say that the recommendation 

directed to the Department of Justice has been fully complied with. 

And then one of the recommendations, the first one actually, was 

to begin the process towards reorganization and recognition of a 

single Native Hawaiian governing entity through Congressional 

legislation, worked out by negotiation with the Native Hawaiian 

14 

people, exactly what you and your colleagues have been working on 

for years. 

Senator AKAKA. Thank you very much for your response. 

Mr. Hirsch, some suggest that once the Native Hawaiian governing entity is recognized, it will acquire a significant amount of 

authority from the State and Federal governments to the detriment 

of non-Natives that are not under its authority. Are such claims 

grounded in law or reality? Has this happened in Indian Country 

or Alaska as their people have exercised self-governance and selfdetermination? 

Mr. HIRSCH. Thank you for that question. My reading of the bill 

as it currently stands is that it has a provision expressly protecting 

against this potential problem. It says that jurisdiction currently 

exercised by the United States or by the State of Hawaii cannot be 

transferred to the Native Hawaiian governing entity unless all 

three sovereigns agree and come back for implementing legislation 

to this body and to the legislature of the State of Hawaii. So there 

is no risk of some sudden jurisdictional grab by the governing entity from the State or from the United States. 

Your point also about tribes generally is well taken. Obviously, 

if the kind of parade of horribles that some may have dreamed up 

were happening elsewhere, we would see States and localities and 

American citizens beating your doors down for changes in our longstanding policy of Indian and Native American self-determination. 

I don’t believe we are seeing that. 

Senator AKAKA. Thank you. 

Senator Inouye, your questions. 

Senator INOUYE. Thank you, Mr. Chairman. 

I want to thank you, Mr. Hirsch, for your clear statement, your 

testimony and your responses to Senator Akaka’s questions. They 

are extremely helpful. They should clarify and clear the picture. 

But as I was listening to you, I could not help but recall that at 

the time our Constitution was being drafted, and Indians were specifically mentioned in the provisions, that all indigenous people on 

the continent and elsewhere were called Indians. In fact, Native 

Hawaiians were referred to as Indians by Captain Cook and those 

who followed him. And the indigenous people in South America 

were all referred to as Indians, just like the ones in Canada. So one 

can say that we were referred to in the Constitution. 

But I just wanted to thank you very much, Mr. Hirsch. You have 

been very helpful. 

Thank you, Mr. Chairman. 

Senator AKAKA. Thank you very much, Senator Inouye. 

I want to thank Mr. Hirsch for being here and for your statements and your responses. I want you to know that there is a 

schedule now on the Floor where the Senators will have to report 

and be in their seats at 3:00 p.m. So given the 3:00 p.m. Senate 

vote, we will be recessing now and we will be returning after the 

vote is concluded. 

As a result, this Committee is in recess. 

[Recess.] 

Senator AKAKA. Aloha. Will the second panel please come to the 

desk? The Senate Committee on Indian Affairs hearing on S. 1011, 

15 

the Native Hawaiian Government Reorganization Act of 2009, will 

come to order. 

I remind our witnesses to limit their testimony to five minutes, 

pursuant to the rule of the Committee. And your complete written 

testimony will be part of the record. 

Testifying before us today is the Honorable Haunani Apoliona, 

Chairperson of the Board of Trustees, Office of Hawaiian Affairs. 

Welcome. 

Professor Stuart M. Benjamin, Associate Dean for Research, 

Duke Law School. 

The Honorable Micah Kane, Chairman, Hawaiian Homes Commission. 

Mr. Christopher Bartolomucci, Partner at Hogan and Hartson. 

And Ms. Robin Danner, President and CEO of the Council for 

Native Hawaiian Advancement. And she is accompanied by Steven 

J. Gunn, an Adjunct Professor at Washington University in St. 

Louis. 

Chairman Apoliona, will you please proceed with your testimony? 

STATEMENT OF HON. HAUNANI APOLIONA, CHAIRPERSON, 

BOARD OF TRUSTEES, OFFICE OF HAWAIIAN AFFAIRS 

Ms. APOLIONA. Thank you, Mr. Chair and Senator Inouye. Aloha 

kakou. 

Senator AKAKA. Aloha. 

Ms. APOLIONA. As stated, I am Haunani Apoliona, and I serve as 

Chairperson of the Board of Trustees of the Office of Hawaiian Affairs. We are most grateful for this Committee hearing on S. 1011, 

the Native Hawaiian Government Reorganization Act. 

The Office of Hawaiian Affairs was established in 1978 when the 

citizens of the State of Hawaii called for a constitutional convention 

and later participated in a statewide referendum to ratify amendments to the Hawaii State constitution. Among those amendments 

was the authorization to establish the Office of Hawaiian Affairs as 

the means by which Native Hawaiians could give expression to 

their rights under Federal law and policy to self-determination and 

self-governance. Since that time, the Office of Hawaiian Affairs has 

administered resources and provided governmental programs and 

services to Native Hawaiians, consistent with the provisions of the 

compact between the United States and the State of Hawaii that 

is commonly known as the Hawaii Statehood Act. 

As you know, this year, the State of Hawaii, marks the 50th anniversary of its admission in to the Union of States. However, for 

thousands of years before western contact was first recorded in 

1778, the Native people of Hawaii occupied and exercised our sovereignty in the islands that now comprises the State of Hawaii. 

The recognition of our sovereignty is manifested in at least 30 treaties with foreign nations, including the United Kingdom, France, 

Belgium, Switzerland, Russia, Japan, Germany and Italy, to name 

a few. 

In 1826, the Hawaiian government entered into a treaty with the 

United States, and in 1849, our government again entered into a 

treaty of friendship, commerce and navigation with the United 

States. While our government was later removed from power by 

force in 1893, our relationship with the United States did not end. 

16 

In the intervening years, the Congress enacted well over 188 Federal statutes that define the contours of our political and legal relationship with the United States process which culminated 100 

years after the tragic events of 1893, with the enactment by the 

Congress of a resolution signed into law by the President of the 

United States, extending an apology to Native Hawaiian people for 

the United States’ involvement in the overthrow of our government. 

Today, the indigenous Native people of Hawaii seek the full restoration of our Native government through the enactment of S. 

1011. We do so in recognition of the fundamental principle that the 

Federal policy of self-determination and self-government is 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. 

In all likelihood, just as Native governments in the Continental 

United States and Alaska vary widely in governmental form and 

structure, our government will be organized to reflect our unique 

history as well as our culture, traditions and our values. We do not, 

for instance, seek to have our lands held in trust by the United 

States or the State of Hawaii, nor do we seek to have our assets 

managed by the Federal or State governments. We do not seek the 

establishment of new Federal programs, for the Federal statutes 

that I mentioned that have been enacted over the last 30 years already provide that authority, and we have been successfully administering programs under those authorities for decades. 

In enacting those statutes, the Congress chose a definition of the 

Native people of Hawaii that is consistent with the Interior Department’s Federal acknowledgment criteria, namely, that for the purpose of our relationship with the United States, the time of first 

western contact with our people is the time from which our existence as a distinct Native community is recognized. That year, as 

you know, was 1778. 

And notwithstanding the overthrow of our government in 1893, 

we have preserved and maintained our Native language, our traditions and our cultural practices, and we continue our social and political interactions as members of a distinct Native community 

within the State of Hawaii that the citizens of Hawaii not only recognize but respect. We are the host community in our islands, and 

despite the changing circumstances of history and the fact that we 

have never directly relinquished our sovereignty as a Native people, we are citizens of the United States and remain proud to be 

Native Hawaiian. 

Because our Native home land lies more than 5,000 mile from 

the Nation’s capital, we know that there are many who do not 

know our ways of life and do not know us as a Native people. 

Nonetheless, our people have come forward with the necessary documentation to prove that they meet the standard definition of Native Hawaiian that has been employed in all of the Federal statutes 

that have been enacted over the last 35 years. 

Still, we know that the national government continues to seek a 

way to further document who we are. The Hawaiian Homes Commission Act of 1921 was the first of such Federal efforts, and pursuant to that Act and the Hawaii Admissions Act, Hawaii State 

17 

Department of Hawaiian Home Lands maintains a list of all Native 

Hawaiians who have been certified as meeting the eligibility criteria to receive an assignment of land under that act. 

But there is also a second list of those who can document their 

Native Hawaiian ancestry and their direct lineal descendance from 

the aboriginal indigenous Native people who originally occupied 

our islands. And that is the Native Hawaiian registry authorized 

under Section 10.9 of the Hawaii Revised Statutes and maintained 

by the office of Hawaiian Affairs. We believe that together, these 

two lists can serve as a source of determination that S. 1011 authorizes the Federal Commission to make. Thus, we believe that 

the funds that would be necessary to establish and maintain the 

proposed commission can be better used to address the many challenges we as a Nation face on the economic front. 

Mr. Chairman, on behalf of the Native Hawaiian people, I would 

be remiss if I were to fail to express our serious concerns about 

those sections of the bill that seek to address any claims of the Native Hawaiian people. These sections represent the outcome of negotiations that were conducted with the prior Administration in 

which Native Hawaiians had no direct involvement or participation. Thus, for instance, the current claims section is written so 

broadly as to bar any claims that might arise out of a personal injury or death of a Native Hawaiian for which the Federal or State 

government or their representative bear direct responsibility. 

We do not believe that the Congress intended to treat Native Hawaiians differently from other American citizens or to deny Native 

Hawaiians the rights that are protected by the equal protection 

guarantees of the U.S. Constitution. Section 8 of S. 1011 provides 

a process for negotiations amongst the governments of the United 

States, the State of Hawaii and the Native Hawaiian people, and 

the bill makes clear that included in the matters that will be subject to these negotiations are the resolution of any claims. The bill 

further provides that once resolution of the various matters listed 

in S. 1011 have been achieved, there will be recommendations for 

implementing legislation submitted to the committees of the U.S. 

Congress, to the Governor and legislature of the State of Hawaii. 

Accordingly, we firmly believe that S. 1011 already contains sufficient authorization for the three governments to address and resolve matters of sovereign immunity through the negotiations process authorized in Section 8 of the bill, and that S. 1011 is not intended to alter the status quo prior to the outcome of that negotiation process. 

OHA looks forward to working with members of the Hawaii Congressional delegation, the Committee, the Obama Administration, 

to assure that the definition of those Native Hawaiians who wish 

to participate in the reorganization of the Native Hawaiian government is inclusive, to assure that there is some government certification process in determining who is eligible to participate in the 

reorganization of a Native Hawaiian government, and to address 

our concerns with the claims section of the bill. We are attaching 

to this testimony a list of treaties that our Hawaiian government 

entered into with foreign nations and a list of Federal statutes that 

I mentioned that have been passed to address Native Hawaiians 

over the last 80 years. 

18 

On behalf of the Office of Hawaiian Affairs, the agency of the 

State of Hawaii authorized by the constitution of the State of Hawaii to serve as the official governmental representative of the Native Hawaiian people, I thank you for the opportunity to share the 

views of OHA on S. 1011, for there is no Federal legislation initiative at this time more important to our people. 

Mahalo. 

[The prepared statement of Ms. Apoliona follows:] 

PREPARED STATEMENT OF HON. HAUNANI APOLIONA, CHAIRPERSON, BOARD OF

TRUSTEES, OFFICE OF HAWAIIAN AFFAIRS


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Senator AKAKA. Mahalo. Thank you, Chairwoman Apoliona. 

Now we will receive the statement of Professor Benjamin. 

STATEMENT OF STUART M. BENJAMIN, DOUGLAS B. MAGGS 

PROFESSOR OF LAW, ASSOCIATE DEAN FOR RESEARCH, 

DUKE LAW SCHOOL 

Mr. BENJAMIN. Senator Akaka, Senator Inouye, thanks for having me. I am honored to be here to testify. 

I am testifying only about the constitutional issues, and I want 

to say at the outset, I have no clients, paid or unpaid. I am speaking entirely for myself, not at anyone else’s behest. 

My basic bottom line, as you saw from my statement, is I think 

the constitutional issues are genuinely difficult ones. Why do I 

think they are difficult? 

S. 1011 applies to a broader and more diffuse group than any 

other recognition of any Native American tribe. So in its breadth 

of coverage it is unprecedented, which is the point that Justice 

Breyer made in Rice v. Cayetano. So this really implicates what we 

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And the question is, what is required to be a tribe for constitutional purposes? There is no clear definition, for better or for worse, 

of what is a tribe. However, it seems like there is a pretty good argument that it requires some connection among the tribal members. And right now, as written in S. 1011, the only connection that 

is required is ancestry. It doesn’t actually require any bonds among 

Native Hawaiians beyond that. 

So it seems to me that that raises a serious question. 

A second question has to do with derivation from the previously 

sovereign entity. As you know, the entity that was overthrown in 

1893 was a multi-ethnic polity with many non-Native citizens. So 

if we hearken back to that and say that is what we are recreating, 

then the problem is, why not include all the descendants of the citizens? 

If instead you want to say, no, let’s have it limited to an entity 

that just included Native Hawaiians, well, when Kamehameha 

united the islands in 1810, even then there were westerners who 

lived there as permanent residents. If you go back to 1778, that 

might suggest having more than one tribe, the way that the islands 

were actually separately governed in 1778. 

Now, having said all of this, the Supreme Court has articulated 

broad deference to decisions that Congress makes about recognizing tribes. But also there are limits to that deference. So the hypothetical that I put forward in my statement is, imagine that you 

pass legislation just like S. 1011, but instead of applying to Native 

Hawaiians, it applied to all Native Americans who were not currently members of tribes in the lower 48. So it applied to Native 

Americans who are racially Native Americans, whether they lived 

in Butte, or they lived in New York City, or they lived in New Orleans, or anywhere else. 

My guess is the Supreme Court would strike that down, would 

say that’s too broad, that these people don’t have enough of a connection among themselves. You can’t just declare all Native Americans not currently in a tribe to be in a tribe. 

So the question is, are Native Hawaiians different? If they are 

different, I think it would be because there are some connections 

among them. But again, as written, the legislation doesn’t highlight any connections, and, as written, it applies to, according to 

Census data, 140,000 people—40 percent of Native Hawaiians live 

outside of Hawaii in all 50 States. 

But if I am wrong, and if in fact the Supreme Court would defer 

entirely to Congress and say it is really a decision for Congress to 

make, then it is all the more incumbent upon the members of Congress to reach their own determinations about the constitutional 

issue. I want to highlight this, because I saw in previous hearings 

some suggestion that said the Supreme Court would allow this, and 

therefore it is constitutional. 

With respect, that is just not so. When I was in the Office of 

Legal Counsel in the Department of Justice in the early years of 

the Clinton Administration, we had many issues that came before 

us that we knew were never going to see a court, that never were 

going to see the light of day, that nobody was going to be able to 

oversee what we did. We could have said, ‘‘Great, we can do anything we want to, no legal constraints.’’ Of course we didn’t do that. 

32 

Instead, we said it’s all the more important that we look carefully 

at these issues, because we are the only stopgap. 

Or, as I pointed out in my statement, no court is going to stop 

you from impeaching or convicting a president or a judge for any 

reason you want, but you still have your own constitutional oaths, 

so that if you think a court isn’t going to oversee it, it’s all the more 

important for you to make your own determinations. 

The final point is, for better or for worse, the constitutional 

ground has shifted over the last 15 years. After the Adarand decision, we have now got this somewhat uneasy relationship between 

Adarand and a whole bunch of other statutes that deal with Native 

Americans. It may be that the Supreme Court would look at S. 

1011 and say, ‘‘This is constitutional, no problem.’’ It may be they 

would strike it down. But it may be that they would not only strike 

it down but would say, ‘‘Gee, maybe we are actually going to reconsider some of these other statutes that seem similar to this.’’ This 

could bring about changes in Native American law beyond S. 1011 

in ways that, I suspect, members of this Committee would not be 

happy about. 

So what do I suggest when all is said and done as ways that 

might put on a stronger constitutional footing? Well, the most obvious thing would be not to include within its ambit Native Hawaiians who don’t live in Hawaii, so to limit it to Native Hawaiians 

who actually live in Hawaii. 

A second thing would be to have it involve Native Hawaiians in 

Hawaii who have some connection among each other. In my view, 

that would put the legislation on stronger constitutional footing. Of 

course, I can’t guarantee that that would either save it, or that it 

is necessary as a constitutional matter. All I can tell you is I think 

they are difficult constitutional questions. Obviously, the decision 

on what to do is yours. But that is my own evaluation, and again, 

on my own behalf, and not anyone else’s. 

[The prepared statement of Mr. Benjamin follows:] 

33 

PREPARED STATEMENT OF STUART M. BENJAMIN, DOUGLAS B. MAGGS PROFESSOR OF

LAW, ASSOCIATE DEAN FOR RESEARCH, DUKE LAW SCHOOL


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Senator AKAKA. Thank you very much, Professor Benjamin, for 

your testimony. 

Now, we will hear from the Honorable Chairman Micah Kane. 


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STATEMENT OF HON. MICAH A. KANE, CHAIRMAN, HAWAIIAN 

HOMES COMMISSION 

Mr. KANE. Senator Akaka, aloha, Senator Inouye, aloha. Thank 

you for giving me this opportunity to testify in strong support of 

this measure. 

For the record, my name is Micah Kane. I am the Chairman of 

the Hawaiian Homes Commission and also serve as the Director of 

the Department of Hawaiian Home Lands. 

As you know, in 1921, the United States Congress set aside 

200,000 acres of land for the purpose of rehabilitating Native Hawaiians. In 1959, when we became a State, the responsibility of administering this trust was passed to the State of Hawaii and hence 

has developed into the Department of Hawaiian Home Lands. 

So today, while I chair the Hawaiian Homes Commission, advising on policy, I also serve as a member of the Governor’s cabinet, 

as one of 17 departments in the State of Hawaii. We are managed 

by a nine-member commission appointed by the Governor and confirmed by the Hawaii State Senate, with membership represented 

throughout the State of Hawaii in staggered terms. 

Today, the Department of Hawaiian Home Lands represents 

more than 36,000 Native Hawaiians across 29 homestead communities throughout our State. Today, the Department of Hawaiian 

Home Lands is the largest residential developer in the state of Hawaii, with over 1,500 units under construction throughout our 

State. 

I think there are obvious reasons why Native Hawaiians support 

this measure. But what I think is most interesting and what is 

most compelling is the broad support that you alluded to, Senator 

Akaka, and Senator Inouye, about the non-Hawaiian support that 

is there. I think it is appropo to the comments that were made 

prior with regard to certain limitations that are being asked for in 

defining what a Native Hawaiian is. I think there is an assumption 

in those comments that by broadening that definition that it would 

limit difficulties. I think the remainder of my comments would be 

appropo in that we don’t feel that that is the case. 

I think one of the main reasons why there is such broad support 

is that the positive impact that the Department of Hawaiian Home 

Lands has had on the lives of those that are not clearly, not defined under the Hawaiian Homes Commission Act. While DHHL’s 

mission is to serve a specific beneficiary group, we do not build segregated communities. As a result of that, many have benefited from 

our work. When we build a park or a community, we build it as 

a gathering place for all, not just for Hawaiians. When we dedicate 

land for a public school or a private school or a charter school, it 

isn’t just for Native Hawaiians. Others participate in those schools. 

When resources are dedicated for major infrastructure improvements, as you know, DHHL is a major builder in water, sewer and 

road re-improvements, we build it to county code through agreements and memoranda of agreements with the county or the State. 

And we take into consideration the capacity of our non-Native 

neighbors. So there is a collaboration that occurs. And when people 

enter or exit our communities, they don’t recognize where it starts 

or ends. That is important to us. 

46 

DHHL is also a close example of what Senate Bill 1011 will result in. We already have democratically-elected communities. We 

operate much like a county. In fact, our CIP budget is comparable 

to those of the five counties in our State. And, DHHL has become 

a critical component of Hawaii’s social fabric and a critical partner 

in overcoming some of Hawaii’s major problems. 

Today, our department is at the forefront in our State’s initiative 

to reduce our dependency on fossil fuel. I am very proud to announce, and I really hope that our Senators can join us in December when we launch our first zero energy subdivision and sustainable community. I think we are going to be leading our Country in 

this area, thanks to the support that you have given us through 

the stimulus money, through energy money. We are very excited to 

share what we have learned from this process, so others throughout the Country can follow. 

We are also at the forefront of our State’s efforts to bring educational opportunities in rural communities, which are sometimes 

overlooked. We are at the forefront of helping our State overcome 

major infrastructure challenges throughout the state. 

Contrary to what few might say, this bill does not draw a line 

in the sand. The irony is that it is really a bridge that we are 

building and that we are allowing all of us to reconnect to what we 

feel is important to our State. This bill is balanced. It recognizes 

the authority and jurisdiction that is needed by a governing entity, 

yet it acknowledges the role it must play within our State and 

within our Federal Government. 

I thank you for the opportunity to testify on behalf of our beneficiaries and, as I stated earlier, we truly appreciate the genuine 

support you have given our people in our State as Senators representing us. Mahalo. 

[The prepared statement of Mr. Kane follows:] 

PREPARED STATEMENT OF HON. MICAH A. KANE, CHAIRMAN, HAWAIIAN HOMES

COMMISSION

Aloha kakou, Chairman Dorgan, Vice Chairman Barrasso, Senator Inouye, Senator Akaka and members of this Committee: 

I am Micah Kane, Chairman of the Hawaiian Homes Commission, and I thank 

you for this opportunity to express support for this bill and to address how federal 

recognition plays a critical role in sustaining our Hawaiian Home Lands program. 

In 1921, the United States Congress adopted the Hawaiian Homes Commission 

Act and set aside more than 200,000 acres of land in Hawaii to rehabilitate the native Hawaiian people. with Statehood in 1959, the responsibility to administer the 

Hawaiian home lands program was transferred to the State of Hawaii. The United 

States, through its Department of the Interior, maintains an oversight responsibility 

and certain major amendments to the Act require Congressional consent. 

For more than 80 years, the Department of Hawaiian Home Lands has worked 

determinedly to manage the Hawaiian Home Lands trust effectively and to develop 

and deliver lands to native Hawaiians. Currently, there are over 36,000 native Hawaiians living in 29 homestead communities throughout the State. Each community 

is an integral part of our state’s economic, social, cultural, and political fabric. 

Passage of S. 1011 will enable the Hawaiian Homes Commission to not only continue fulfilling the mission Congress entrusted to us, but to reach incredible successes that we are only starting to realize. 

These five reasons are why we need this bill to be passed: 

1. Our housing program benefits the entire state. The Department of Hawaiian 

Home Lands is the largest single family residential developer in the State of 

Hawaii and has provided nearly 3,000 families homeownership opportunities in 

the past five years. Each home we build represents one more affordable home 

47 

in the open market or one less overcrowded home. In a state with high living 

costs and an increasing homeless population, there is no question that we are 

doing our part in raising the standard of living for all residents of our great 

state. 

2. We build and maintain partnerships that benefit entire communities. We 

think regionally in our developments and we engage the whole community in 

our planning processes. Our plans incorporate people, organizations (e.g. 

schools, civic clubs, hospitals, homeowner associations), all levels of government 

and communities from the entire region—not only our beneficiaries. It is a realization of an important Hawaiian concept of ahupuaa—in order for our Hawaiian communities to be healthy; the entire region must also be healthy. This approach encourages a high level of cooperation, promotes respect among the community, and ensures that everyone understands how our developments are beneficial to neighboring communities and the region. 

3. We are becoming a self-sustaining economic engine. Through our general lease 

program, we rent non-residential parcels to generate revenue for our development projects. Since 2003, the Department has doubled its income through general lease dispositions. We have the ability to be self-sufficient. Revenue generation is the cornerstone to fulfilling our mission and ensuring the health of our 

trust. 

4. Hawaiian communities foster Native Hawaiian leadership. Multi-generational 

households are very common in our Hawaiian homestead communities. This 

lifestyle perpetuates our culture as knowledge and values are passed through 

successive generations. These values build strong leaders and we are seeing 

more leaders rising from our homesteads and the Hawaiian community at-large. 

It is common to see Native Hawaiians in leadership positions in our state. 

Three members of Governor Lingle’s cabinet are Hawaiian, as are almost onefifth of our state legislators. Hawaiian communities grow Hawaiian leaders who 

make decisions for all of Hawaii. 

5. Hawaiian home lands have similar legal authority as proposed under S. 1011. 

Because of our unique legal history, the Hawaiian Homes Commission exercises 

certain authority over Hawaiian home lands, subject to state and federal laws, 

similar to that being proposed under S. 1011. 

The Commission exercises land use control over our public trust lands, but complies with State and County infrastructure and building standards. The Commission allocates land within its homestead communities for public and private 

schools, parks, churches, shopping centers, and industrial parks. 

Amendments to the trust document, the Hawaiian Homes Commission Act, require State legislative approval and, in some instances, Congressional consent. 

Hawaiian home lands cannot be mortgaged, except with Commission approval, 

and cannot be sold, except by land exchanges upon approval of the United 

States Secretary of the Interior. 

The State and Counties exercise criminal and civil jurisdiction on Hawaiian 

home lands. Gambling is not allowed and the Commission cannot levy taxes 

over Hawaiian home lands. 

The Hawaiian Home Lands Trust and our homesteading program is part of the 

essence of Hawaii. On behalf of the Hawaiian Homes Commission, I ask that you 

approve this bill so we can work toward recognition and continue doing good work 

for all the people of Hawaii. 

Senator AKAKA. Thank you very much for your testimony, Chairman Micah Kane. 

Now we will receive the testimony of Mr. Christopher 

Bartolomucci. 

STATEMENT OF H. CHRISTOPHER BARTOLOMUCCI, PARTNER, 

HOGAN & HARTSON LLP 

Mr. BARTOLOMUCCI. Thank you, Mr. Chairman. It is indeed an 

honor to testify today on S. 1011, the Native Hawaiian Government 

Reorganization Act of 2009. In my testimony today, I will focus 

upon the legal issue of Congress’ constitutional authority to enact 

this legislation. 

48 

The principal legal question presented by S. 1011 is whether 

Congress has the power to treat Native Hawaiians the same way 

it treats this Country’s other indigenous groups; that is, American 

Indians and Native Alaskans. Constitutional text, Supreme Court 

precedent and historical events provide the answer, namely, that 

Congress’ broad power to deal with Indian tribes allows Congress 

to recognize Native Hawaiians as having the same sovereign status 

as other Native Americans. 

S. 1011 would initiate a process by which Native Hawaiians 

would reconstitute their governing entity. Congress has ample authority to assist Native Hawaiians in that effort. Congress’ broadest power, the power to regulate commerce, specifically encompasses the power to regulate commerce ‘‘with the Indian tribes.’’ 

Based upon the Indian Commerce Clause and other constitutional 

provisions, the Supreme Court has recognized Congress’ plenary 

power to legislate regarding Indian affairs. 

As the Supreme Court said in the 2004 case of United States v. 

Lara, ‘‘the Constitution grants Congress broad general powers to 

legislate in respect to Indian tribes, powers that we have consistently described as plenary and exclusive.’’ Congress has used that 

broad power in the past to restore lost tribal sovereignty. In 1954, 

Congress terminated the sovereignty of the Menominee Indian 

Tribe in Wisconsin. It ended the government-to-government relationship with the Tribe and closed its membership roll. 

Nearly two decades later, in 1973, Congress reversed course and 

enacted the Menominee Restoration Act, which restored sovereignty to the Menominee, reinstated the Tribe’s Federal rights 

and Federal recognition and reopened its membership roll. Pointing 

to the Menominee Restoration Act, the Supreme Court in the Lara 

case affirmed that the Constitution authorizes Congress to enact 

legislation recognizing the existence of individual tribes and restoring previously extinguished tribal status. 

S. 1011 is patterned after the Menominee Restoration Act and 

would do for Native Hawaiians what Congress did for the Menominee. 

S. 1011 does not run afoul of the Supreme Court’s 2000 decision 

in Rice v. Cayetano. In Rice, the Court ruled that the State of Hawaii could not limit the right to vote in a State election to Native 

Hawaiians. But Rice did not decide whether Congress may treat 

Native Hawaiians as it does other Native Americans. Indeed, the 

Rice court expressly declined to address the question whether Native Hawaiians have a status like that of Indians in organized 

tribes, and whether Congress may treat the Native Hawaiians as 

it does the Indian tribes. 

Some opponents of the legislation have pointed to Rice in support 

of an argument that the bill violates equal protection principles. 

But the Supreme Court has long held that Congressional legislation dealing with sovereign indigenous groups is neither discrimination nor unconstitutional. As the Supreme Court said in the case 

of United States v. Antelope, ‘‘The decisions of this court leave no 

doubt that federal legislation with respect to Indian tribes, although relating to Indians as such, is not based on impermissible 

racial classifications.’’ The court continued, ‘‘Federal regulation of 

49 

Indian tribes * * * is governance of once-sovereign political communities.’’ 

When Congress enacts laws regarding sovereign, indigenous peoples, it does so on a government-to-government basis. Such laws 

are not race-based. 

Scores of Federal laws and regulations exist relating to American 

Indians, Native Alaskans and Native Hawaiians, and none has 

ever been struck down as racially discriminatory. Congress’ power 

to enact special legislation for Native Hawaiians is also supported 

by Congress’ unquestioned power to enact such legislation for Native Alaskans who, like Native Hawaiians, differ from American Indian tribes anthropologically, historically and culturally. Because 

Congress has power to enact special legislation dealing with Native 

Alaskans, it follows that Congress has the same authority with respect to Native Hawaiians. 

Ultimately, a decision by Congress to treat Native Hawaiians 

like other Native groups is a political decision and one that the 

Federal courts are not likely to second guess. For example, in the 

1913 case of United States v. Sandoval, which involved the New 

Mexican Pueblos, the Supreme Court ruled that Congress could 

treat the Pueblos as Indians, even though their culture and customs differed from that of other Indian tribes. 

The court decided that Congress’ judgment was not arbitrary and 

that judicial review should end there. S. 1011 passes that legal 

test. 

Professor Benjamin objects to the breadth of the definition of the 

term ‘‘Native Hawaiian’’ in the bill. In response, I would point out 

that that definition is to be used for only one narrow purpose, that 

is, to create the initial roll of persons eligible to elect an interim 

governing council. Ultimately, it will be up to the Native Hawaiian 

governing entity to determine the requirements of membership. 

That is fully in keeping with the fundamental legal principle that 

a tribe has the authority to determine its own membership. 

In my view, a broad initial definition is preferable to one that 

would be unduly narrow, to allow greater participation in the initial process of reorganizing the governing entity. 

That concludes my testimony. Thank you again for the invitation. I will be happy to answer the Committee’s questions. 

[The prepared statement of Mr. Bartolomucci follows:] 

PREPARED STATEMENT OF H. CHRISTOPHER BARTOLOMUCCI, PARTNER, HOGAN & 

HARTSON LLP 

Chairman Dorgan, Vice Chairman Barrasso, and distinguished Members of the 

Committee: 

Thank you for the invitation to testify on S. 1011, ‘‘the Native Hawaiian Government Reorganization Act of 2009.’’ It is indeed an honor to testify before this distinguished body. My testimony will focus upon the legal issue of Congress’ constitutional authority to enact this legislation. 

The principal legal question presented by S. 1011 is whether Congress has the 

power to treat Native Hawaiians the same way it treats this country’s other indigenous groups, i.e., American Indians and Native Alaskans. Constitutional text, Supreme Court precedent, and historical events provide the answer: Congress’ broad 

power in regard to Indian tribes allows Congress to recognize Native Hawaiians as 

having the same sovereign status as other Native Americans. 

S. 1011 would establish a process by which Native Hawaiians would reconstitute 

their indigenous government. Before Hawaii became a State, the Kingdom of Hawaii 

was a sovereign nation recognized as such by the United States. In 1893, American 

50 

officials and the U.S. military aided the overthrow of the Hawaiian monarchy. A 

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

U.S. involvement in this regime change. See Apology Resolution, Pub. L. No. 103– 

150, 107 Stat. 1510 (1993); see also Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 

1436, 1439 (2009) (noting that Congress ‘‘pass[ed] a joint resolution to apologize for 

the role that the United States played in overthrowing the Hawaiian monarchy in 

the late 19th century’’). 

Congress has ample authority to assist Native Hawaiians in their effort to reorganize their governing entity. Congress’ broadest constitutional power—the power to 

regulate commerce—specifically encompasses the power to regulate commerce ‘‘with 

the Indian tribes.’’ U.S. Const., art. I, § 8, cl. 3. Based upon the Indian Commerce 

Clause and other constitutional provisions, see, e.g., Treaty Clause, art. II, § 2, cl. 

2, the Supreme Court has recognized Congress’ plenary power to legislate regarding 

Indian affairs. As the Supreme Court stated in the case of United States v. Lara, 

541 U.S. 193 (2004), ‘‘the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’ ’’ Id. at 200. 

Congress has previously used that power to restore lost tribal sovereignty. In 

1954, Congress terminated the sovereignty of the Menominee Indian tribe in Wisconsin, ended the government-to-government relationship with the tribe, and closed 

its membership roll. See Menominee Indian Termination Act, 25 U.S.C. § § 891–902. 

Nearly two decades later, in 1973, Congress reversed course and enacted the Menominee Restoration Act, 25 U.S.C. § § 903–903f, which restored sovereignty to the 

Menominee, reinstated the tribe’s federal rights and federal recognition, and reopened its membership roll. Pointing to the Menominee Restoration Act, the Supreme Court in Lara affirmed that the Constitution authorizes Congress to enact 

legislation ‘‘recogniz[ing] * * * the existence of individual tribes’’ and ‘‘restor[ing] 

previously extinguished tribal status.’’ Lara, 541 U.S. at 203. 

S. 1011 is patterned after the Menominee Restoration Act and would do for Native 

Hawaiians what Congress did for the Menominee. Courts have approved of the sovereignty restoration process enacted in the Menominee Restoration Act. See Lara, 

541 U.S. at 203 (citing the Menominee Restoration Act as an example where Congress ‘‘has restored previously extinguished tribal status–by re-recognizing a Tribe 

whose tribal existence it previously had terminated’’); United States v. Long, 324 

F.3d 475, 483 (7th Cir. 2003) (concluding that Congress had the power to ‘‘restor[e] 

to the Menominee the inherent sovereign power that it took from them in 1954’’) 

(opinion of Wood, J., joined by Posner & Easterbrook, JJ.), cert. denied, 540 U.S. 

822 (2003). 

S. 1011 does not run afoul the Supreme Court’s decision in Rice v. Cayetano, 528 

U.S. 495 (2000). In Rice, the Court ruled that the State of Hawaii could not limit 

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

whether Congress may treat Native Hawaiians as it does other Native Americans. 

Indeed, the Court in Rice expressly declined to address whether ‘‘native Hawaiians 

have a status like that of Indians in organized tribes’’ and ‘‘whether Congress may 

treat the Native Hawaiians as it does the Indian tribes.’’ Id. at 518. 

Some opponents of the legislation have pointed to Rice in support of an argument 

that the bill violates equal protection principles. But the Supreme Court has long 

held that congressional legislation dealing with sovereign indigenous groups is governmental, not racial, in character and hence is neither discrimination nor unconstitutional. As the Supreme Court explained in a 1977 case: 

The decisions of this Court leave no doubt that federal legislation with respect 

to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications. Quite the contrary, classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in 

the Constitution and supported by the ensuing history of the Federal Government’s relations with Indians. * * * Federal regulation of Indian tribes * * * 

is governance of once-sovereign political communities; it is not to be viewed as 

legislation of a ‘‘ ‘racial’ group consisting of Indians * * *.’’ 

United States v. Antelope, 430 U.S. 641, 645–646 (1977) (quoting Morton v. 

Mancari, 417 U.S. 535, 553 n.24 (1974) (footnote omitted)). 

In Mancari, the Supreme Court rejected the argument that an Act of Congress 

establishing an employment preference for qualified Indians in the Bureau of Indian 

Affairs violated due process and federal anti-discrimination law. The Supreme Court 

observed that ‘‘[o]n numerous occasions this Court specifically has upheld legislation 

that singles out Indians for particular and special treatment.’’ 417 U.S. at 554. And 

the Court explained that the following rule applies with respect to Congress’ special 

treatment of Indians: ‘‘As long as the special treatment can be tied rationally to the 

51 

* The February 26, 2007 paper, entitled, The Authority of Congress to Establish a Process for 

Recognizing a Reconstituted Native Hawaiian Governing Entity, by: H. Christopher 

Bartolomucci, Viet D. Dinh, and Neal K. Katyal has been retained in Committee files and can 

be found at http://www.nativehawaiians.com/archives/pdf/NHGRA070226.pdf 

fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.’’ Id. Here, S. 1011 is ‘‘rationally tied’’ to Congress’ discharge of its duty with respect to the native people of Hawaii. 

Accordingly, when Congress enacts laws regarding sovereign, indigenous peoples, 

it does so on a government-to-government basis; such laws are not race-based. 

Scores of federal laws and regulations exist relating to American Indians, Native 

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

discriminatory. See, e.g., Hawaiian Homes Commission Act, 42 Stat. 108 (1921); Native Hawaiian Education Act, 20 U.S.C. § 7511–7517; Native Hawaiian Health Care 

Act, 42 U.S.C. § § 11701–11712. 

Congress’ power to enact special legislation for Native Hawaiians is also supported by Congress’ unquestioned power to enact such legislation for Native Alaskans, who—like Native Hawaiians—differ from American Indian tribes anthropologically, historically, and culturally. See, e.g., Alaska Native Claims Settlement Act, 

43 U.S.C. § § 1601–1629h. Because Congress has power to enact special legislation 

dealing with Native Alaskans—a power that the Supreme Court has never questioned—it follows that Congress has the same authority with respect to Native Hawaiians. 

Ultimately, a decision by Congress to treat Native Hawaiians like other native 

groups is a political decision that the federal courts are not likely to second guess. 

In the 1913 case of United States v. Sandoval, 231 U.S. 28 (1913), which involved 

the New Mexican Pueblos, the Supreme Court ruled that Congress could treat the 

Pueblos as Indians, even though their culture and customs differed from that of 

other Indian tribes. The Court decided that Congress’ judgment was not arbitrary 

and that judicial review should end there. See Sandoval, 231 U.S. at 45–49; see also 

United States v. Holliday, 3 Wall. 407, 419 (1886); Long, 324 F.3d at 482. S. 1011 

passes that legal test. 

For the remainder of my prepared statement, I attach a legal opinion, titled ‘‘The 

Authority of Congress to establish a Process for Recognizing a Reconstituted Native 

Hawaiian Governing Entity,’’ that I co-authored in 2007 with Professors Viet D. 

Dinh and Neal K. Katyal of Georgetown University. Although that opinion addressed S. 310, the version of the legislation pending in 2007, the present legislation, S. 1011, does not differ in substance from S. 310. Therefore, the opinion that 

offered with respect to S. 310 also holds for S. 1011. * 

Senator AKAKA. Thank you very much, Mr. Bartolomucci. 

Now we will receive the testimony of President Robin Danner. 

STATEMENT OF ROBIN PUANANI DANNER, PRESIDENT/CEO, 

COUNCIL FOR NATIVE HAWAIIAN ADVANCEMENT; 

ACCOMPANIED BY STEVEN JOSEPH GUNN, ATTORNEY AND 

ADJUNCT PROFESSOR OF LAW, WASHINGTON UNIVERSITY 

IN ST. LOUIS 

Ms. DANNER. Aloha, Senator Akaka, Senator Inouye. Thank you 

for this opportunity to testify on behalf of the Council for Native 

Hawaiian Advancement. 

For the record, my name is Robin Puanani Danner. I am here 

today in my capacity as the President of the Council. Also with me 

today is Professor Steven Gunn, from the Washington University, 

an expert in Native American law. 

CNHA was founded to unify Native Hawaiian community groups 

and organizations to enhance the cultural, economic and policy 

voice of Native Hawaiians. Similar in purpose to the Alaska Federation of Natives and the National Congress of American Indians, 

we work in public policy education and we connect resources to 

community goals on the ground. 

52 

Our member organizations consist of cultural groups, charter 

schools, civic and homestead associations, housing and economic 

development type organizations, resource management practitioners, to name a few. I would like to express our strong support 

for Senate Bill 1011. In my written testimony, filed for the record, 

we make a few recommendations that we would be happy to work 

with our delegation and the Committee on. 

As President of CNHA, I have worked for many years with extraordinary Native leaders and others to improve the opportunities 

and resolve challenges facing our people. This legislation, first introduced in 2000, is perhaps the single most important piece of 

public policy to advance solutions from within our communities and 

in partnership with the Federal Government, our trust agencies, 

and the State of Hawaii. 

Senate Bill 1011 recognizes the economic, cultural and political 

rights and interests of Native Hawaiians. It is intended to facilitate 

our efforts to reorganize a Native government accountable to our 

community, representing the full measure of the Federal policy of 

self-determination and self-governance. It would particularly be appropriate if Congress would enact this legislation this year, in 

2009, the 50th anniversary of Hawaii’s statehood. 

This Committee, the Senate Committee on Indian Affairs, perhaps more so than any other of the distinguished United States 

Senate Committees, is well versed in the history and public policy 

eras of our Country and America’s native peoples. It is a worthy 

journey to continually seek a fair and just pathway to honor the 

values of our democracy while recognizing the contributions of and 

the impact to Native peoples in the building of a great nation. 

My people are the third major category amongst the three most 

commonly referred to as indigenous or native to the homelands 

that now consist of the 50 States: American Indians, Alaska Natives and Native Hawaiians. Senators, I was born in my family’s 

fishing village on the south shores of the island of Kauai. My upbringing was the responsibility of my parents as well as multigenerational family members. 

I lived on the Navajo Indian Reservation in Arizona, I lived 

among the Inupiut Eskimo in the high Arctic in Alaska, and I live 

on my homestead in Hawaii where my four children have been 

raised. My parents were teachers working in the BIA and public 

school systems, both at home in Hawaii and among the tribes. I 

will say from a lifetime of witnessing first-hand the traditional and 

cultural practices, the communal family ties of the Navajo, the Eskimo, and yes, my own Native Hawaiian people, we are connected. 

We are unique, each of us, yet we share the commonality that we 

are each native to our respective homelands. 

Just as the Great Plains are the homelands of the Lakota, so too 

are the Hawaiian Islands the homelands of Native Hawaiians. Our 

geographical locations may differ within the 50 States. But what is 

transpiring inside Native communities, whether an Indian reservation or our home in Hawaii, are communities engaged, connected 

to one another in collective action, living life ways, cultures and 

protocols of knowledge unique to each homeland. 

As Hawaiian leaders, all of us have conducted and participated 

in hundreds of consultation sessions and meetings on the topic of 

53 

this legislation over the last 10 years. It has been inspiring to discuss and connect the potential of Senate Bill 1011 to the work on 

the ground and what it can mean to what is real in our day to day 

lives. There is clear consensus and support in our community for 

a recognition process, and to fully embrace and apply the policy of 

self-determination, Senate Bill 1011 is exactly the right and next 

step in our journey with you, the Congress, with the Administration and with our State agencies and local and State government 

back home. 

In closing, I would like to thank you for the opportunity to be 

with you today. As Native Hawaiians, we want to be responsible 

and accountable for our resources and for our communities. We 

want to be a full and active partner with the State and Federal 

governments in growing solutions in our communities. And Senate 

Bill 1011 represents a pathway to once again have our own voice 

to govern our own affairs, and to take our rightful place in truly 

applying the talent and knowledge and opportunities in our homeland that will enrich the lives of all in Hawaii. 

I thank you for the opportunity, and as I stated before, we remain available to work with the Committee on the recommendations in my testimony filed for the record. 

[The prepared statement of Ms. Danner follows:] 

PREPARED STATEMENT OF ROBIN PUANANI DANNER, PRESIDENT/CEO, COUNCIL FOR

NATIVE HAWAIIAN ADVANCEMENT

Aloha Chairman Dorgan, Vice Chairman Barrasso, Senator Inouye, Senator 

Akaka and other Members of the Committee. Thank you for your invitation to provide testimony on behalf of the Council for Native Hawaiian Advancement regarding 

the Native Hawaiian Government Reorganization Act of 2009, S.1011. 

My name is Robin Puanani Danner. I am native Hawaiian and a resident of Hawaiian Home Lands, the trust lands created under the enactment of the Hawaiian 

Homes Commission Act of 1920. 

I submit this testimony in my capacity as President of the Council, founded to 

unify Native Hawaiian groups and organizations to promote the cultural, economic 

and community development of Native Hawaiians. Similar in purpose to the Alaska 

Federation of Natives and the National Congress of American Indians, CNHA 

achieves its mission through a strong policy voice, capacity building and connecting 

resources to the challenges in our communities. Today, CNHA has a membership 

of 102 Native Hawaiian organizations. We are governed by a 15-member board of 

directors elected by our member organizations. 

I would like to express CNHA’s strong support for S. 1011 with revisions. As 

President of CNHA, I have worked for many years with extraordinary Native leaders and others to improve the opportunities and resolve challenges faced by Native 

Hawaiians. This legislation, first introduced in 2000 is perhaps the single most important piece of public policy to advance solutions from within our communities and 

in partnership with the Federal Government and State of Hawaii. 

The Native Hawaiian Government Reorganization Act is important legislation 

that recognizes the economic, cultural, and political rights and interests of Native 

Hawaiians. The Act is intended to facilitate the Native Hawaiian people’s efforts to 

reorganize our native government to promote our best interests. This legislation has 

been before Congress for almost 10 years, and it is particularly appropriate that 

Congress enact this legislation in 2009, the 50th anniversary of Hawaii’s statehood. 

Since Hawaii’s overthrow as an independent nation and subsequent annexation 

to the United States, our Native Hawaiian people have sought justice. While Queen 

Liliuokalani, our last reigning monarch prior to the overthrow, was alive, she maintained our claims and passed the torch to Prince Jonah Kuhio Kalanianaole. One 

of his most significant achievements was the enactment of the Hawaiian Homes 

Commission Act of 1920 (HHCA). Modeled after the 1906 Native Allotment Act for 

Alaska Natives and American Indians enacted by Congress, the HHCA established 

trust lands for residential, agricultural and pastoral homesteading by Native Hawaiians. 

54 

Yet the HHCA was only a partial solution. A Native Hawaiian government, recognized by the Federal Government and accountable to Native Hawaiians, represents 

the full measure of the federal policy of self-determination and self-governance, 

which is achieved in S. 1011. The state agencies, Department of Hawaiian Home 

Lands and Office of Hawaiian Affairs, are vital partners yet cannot fulfill this role. 

As the Supreme Court pointed out in Rice v. Cayetano, these agencies are state government agencies founded in state law. Passage of S. 1011 authorizes a process by 

which the Native Hawaiian people are able to reorganize a Native Hawaiian government to speak on our behalf as native people and to work in a government-to-government relationship with the state of Hawaii and our Federal Government. 

Background 

I would like to include in the record, background information relevant to S. 1011 

and the historical context which makes clear that passage of S. 1011 is exactly the 

next step in the journey of Native Hawaiians with the Federal Government. 

Original People of the Hawaiian Islands 

The Hawaiian Islands form the apex of the Polynesian triangle that extends from 

New Zealand (Aotearoa) to Easter Island (Rapa Nui) and north to Hawaii. The Polynesian triangle includes eight distinct cultures: Hawaiian, Maori, Rapa Nui, Marquesan, Samoan, Tahitian, Tongan and Tokelauan. 

Our people settled the Hawaiian Islands approximately 2,000 years ago, arriving 

from the South Pacific through extraordinary feats of navigation. Our early Native 

Hawaiian ancestors established a complex society based on agriculture and aquaculture. By farming taro, breadfruit and sweet potatoes, raising animals, and using 

fish traps and harvesting seafood, our people had a self-sufficient, sustainable economy. As Congress recognized, the Native Hawaiian people ‘‘lived in a highly organized, self-sufficient, subsistence social system based on a communal land tenure 

with a sophisticated language, culture, and religion.’’ Apology Resolution, Public 

Law No. 103–150, 107 Stat. 510. 

We had a complex system of ali’i (chiefs), laws that governed the conduct of our 

people and all of us had an interest in the land. Hawaii’s State Motto, Ua mau ke‘ea 

o ka‘aina i ka pono—‘‘The life of the land is perpetuated in righteousness’’ reflects 

the respect that all people of the State of Hawaii have for the cultural traditions 

and values of Hawaii’s indigenous people. In the same sense as other Native Americans are native to the other 49 states, Native Hawaiians are the ‘‘aboriginal, indigenous, native people of Hawaii.’’ 

The Kingdom of Hawaii 

By 1810, King Kamehameha had consolidated the rule of the Hawaiian Islands 

into the Kingdom of Hawaii. Many foreign nations recognized and promulgated treaties with the Kingdom of Hawaii as an independent sovereign nation, and the 

United States entered into treaties with the Kingdom of Hawaii in 1826, 1849, 1875, 

and 1887. In the 1849 Treaty with the Kingdom of Hawaii, the United States 

pledged ‘‘perpetual peace and amity.’’ 

In 1840, the Kingdom of Hawaii became a constitutional monarchy, which confirmed that the lands of Hawaii belonged to the chiefs and the Native Hawaiian people subject to the management of the land by the King. From 1845 to 1848, the Hawaiian lands were divided between the ali’i (1,690,000 acres), King Kamehameha III 

(984,000 acres), and the Government (1,523,000 acres). It was recognized that the 

King held the Government lands in trust for benefit of the Native Hawaiian people. 

The Overthrow of the Kingdom of Hawaii 

The first foreigners to come to Hawaii beginning in 1778 came as explorers and 

missionaries. The next generation began sugar and pineapple plantations. In 1892, 

when Queen Liliuokalani sought to restore the place of the Monarchy through a constitutional revision, foreign business interests organized against her. In 1893, armed 

with assistance of the U.S. government minister and the support of the U.S. naval 

forces, the American and European plantation owners overthrew the Kingdom of 

Hawaii in violation of the United States’ treaties of friendship and commerce. 

Queen Liliuokalani sought to avoid bloodshed and rather than rally armed forces, 

filed diplomatic protests with the United States. Although President Cleveland 

agreed that the U.S. forces had acted in violation of international law and called 

for the restoration of the Kingdom, the Provisional Government refused to yield, declaring itself the Republic of Hawaii. In 1898, the McKinley Administration accepted 

the annexation of Hawaii through a joint resolution of Congress, although the Native Hawaiian people sent petitions objecting to annexation. 

The Kingdom of Hawaii’s Crown lands and Government lands were transferred 

to the United States as the ‘‘ceded lands,’’ by the Republic of Hawaii. The Hawaii 

55 

1 In 1938, Congress reaffirmed these principles through the Kalapana Extension Act, which 

was enacted to provide access, homesteading privileges and fishing rights to native Hawaiians 

within the Hawaii National Park. Public Law No. 75–680, 52 Stat. 784 (1938). Between 1921 

and 1959, Congress enacted 20 other statutes for the benefit of Native Hawaiians. 

Organic Act of 1900 formally made the Hawaiian Islands a territory of the United 

States and retained most of the laws created by the Kingdom of Hawaii, including 

ahupua’a tenant land rights, and the recognition of ‘‘Hawaiian tradition and custom’’. Ref: U.S. Department of the Interior and Justice Report: ‘‘From Mauka to 

Makai: The River of Justice Must Flow Freely,’’ (2000), explaining Hawaii Organic 

Act, 31 Stat. 141, 56th Cong. 1st Sess. (April 30, 1900). 

Queen Liliuokalani continued to seek justice for the Native Hawaiian people until 

her death in 1917. She never voluntarily relinquished her claims to sovereignty on 

behalf of the Native Hawaiian people. In addition, she actively continued to seek 

the return of the Crown lands for the Native Hawaiian people. 

The Hawaiian Homes Commission Act 

Prince Jonah Kuhio Kalanianaole, the Kingdom of Hawaii’s heir to the throne, 

participated in a rebellion against the Republic of Hawaii in 1895 and was jailed 

for a year. After his release, he travelled widely in Europe and served in the British 

Army in Africa, returning to Hawaii in 1901 to take up his duties as an advocate 

for our Native Hawaiian people. He was elected to Congress and served from 1903 

until his death in 1922. One of his most singular achievements was the enactment 

of the Hawaiian Homes Commission Act of 1920, which set aside approximately 

200,000 acres of the ceded lands for homesteading by native Hawaiians (1⁄2 or more Hawaiian blood). 

Prior to the overthrow, our people were devastated by foreign diseases and our 

suffering increased after the overthrow. Our difficult situation was made plain in 

the hearings before Congress. Before the House Committee on Territories, Territorial Senator John Wise testified: 

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 big cities they 

had to live in the cheapest places, the tenements. That is one of the big reasons 

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. We are not only 

asking for justice in the matter of division of the lands, but we are asking that 

the great people of the United States should pause for one moment and, instead 

of giving all of your help to Europe, give some help to the Hawaiians and see 

if you can not rehabilitate this noble people. 

In the same hearings, Secretary of the Interior Lane acknowledged our Native 

Hawaiian people as a native people to whom the United States owed a trust responsibility: 

One thing that impressed me there 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 . . .. [T]hey are 

a problem now and they ought to be cared for by being provided homes out of 

the public lands; but homes that they could not mortgage and could not sell. 

H.R. Doc. No. 839, 66th Cong., 2d Sess. at 4 (1920). 

In enacting the HHCA, Congress expressed its intention to, among other things, 

exercise its constitutional Indian affairs power to provide for Native Hawaiians by 

analogizing the Act to ‘‘enactments granting Indians... special privileges in obtaining and using the public lands.’’ 

H.R. Doc. No. 839. 

As Queen Liliuokalani’s heir, Prince Jonah Kuhio Kalanianaole provides a continuous link between the Kingdom of Hawaii and our native Hawaiian people in 1920. 

As its legislative history makes clear, the HHCA is a statutory recognition of Native 

Hawaiians as a native people to whom the United States owes a special trust responsibility. In other words, Native Hawaiians are a recognized native people within 

the area protected by Congress’s constitutional authority to provide for the betterment of America’s native peoples. 1 The Hawaiian Home Lands have assisted our 

people to maintain distinctly native communities throughout Hawaii. 

For example, residents of Hawaiian Home Lands are organized through native 

Hawaiian homestead associations across the state, which function like city councils 

maintaining community cohesiveness and safety, addressing community issues and 

preserving community values and traditions. The membership of these associations 

56 

consists of individual members that elect leadership to implement programs and 

projects within the homestead community. 

In addition, our Native Hawaiian people maintain distinctly native communities 

on the island of Niihau, where our people reside with little interference from outsiders, and on other native lands, some of which date back to the Kuleana Act of 

1850, and have never been relinquished from native control and occupation. 

The State Admissions Act and Other Statutes 

The State Admissions Act transferred more than 1,125,000 acres of the Ceded 

lands (former Kingdom of Hawaii Crown and Government lands) from the United 

States to the new State of Hawaii. The income and proceeds from any sales of such 

lands are to be used for 5 purposes, including ‘‘the betterment of the conditions of 

native Hawaiians’’ as defined by the HHCA. Public Law No. 86–3, 73 Stat. 4. The 

State’s use of the Ceded lands for any purpose other than those specified in the Act 

would constitute a breach of trust, which the United States retained authority to 

enforce in the courts. 

In addition, the Admissions Act transferred the responsibility for administering 

the HHCA lands from the territorial government to the state government as follows: 

‘‘the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a 

provision of the Constitution of said State... subject to amendment or repeal 

only with the consent of the United States.’’ In this way, the Admissions Act reaffirms the HHCA recognition of the Native Hawaiian people as a native people to 

whom the United States owes a unique trust responsibility. 

Since the mid-1970s, Congress has enacted numerous statutes to provide for the 

betterment of Native Hawaiians as part of or analogous to congressional programs 

for other Native American peoples. In total, Congress has enacted more than 160 

statutes that address Native Hawaiian issues. 

The Clinton Administration 

On November 23, 1993, President Clinton signed the Native Hawaiian Apology 

Resolution into law. The Apology Resolution: 

• Recognizes the Native Hawaiian people as the aboriginal, indigenous, native 

people of Hawaii and acknowledges that our people have never ceded our claims 

to sovereignty or our desire for self-determination; 

• Recognizes that the United States, in violation of several treaties, through its 

minister and naval forces, was an active participant in the overthrow of the 

Kingdom of Hawaii; and 

• Apologizes for the United States’ role in the overthrow and the deprivation of 

Native Hawaiian rights; and 

• Pledges the Nation to a course of reconciliation with the Native Hawaiian people. 

The Apology Resolution was viewed by Native Hawaiians as a great step forward 

towards justice and reconciliation with the United States. The leadership of our congressional delegation on this important issue was and continues to be deeply appreciated. 

In February 2000 in Rice v. Cayetano, 528 U.S. 495 (2000), the Supreme Court 

reviewed the state laws restricting voting for the Board of Trustees of the State Office of Hawaiian Affairs (OHA) to Native Hawaiians to determine whether they violated the 14th and 15th Amendments to the Constitution. The Supreme Court held 

that the state law voting restriction based upon Native Hawaiian ancestry was unconstitutional under the 15th Amendment’s prohibition against any race based limit 

on the right to vote. The Supreme Court rejected an analogy to Native American 

tribal elections, which are conducted by tribes as native sovereigns, from the state 

sponsored elections for a state office within a state agency. 

In the Rice case, the Justice Department argued that state legislation on behalf 

of Native Hawaiians is permissible under the 14th Amendment because it is consistent with Federal laws for the betterment of Native Hawaiians, reasoning: 

Congress does not extend benefits and services to Native Hawaiians because of 

their race but because of their unique status as the indigenous people of a oncesovereign nation as to whom the United States has a recognized trust responsibility. 

The Justice Department explained further that so long as Congress rationally concludes that a native people remain a ‘‘distinctly’’ native community, Congress has 

authority to provide for the betterment of such community. That is true whether 

the native community is within the original or the subsequently acquired territory 

of the United States. See United States v. Sandoval, 231 U.S. 45–46 (1913). The 

57 

2 In a concurring opinion, Justices Breyer and Souter cast doubt on the 1778-based lineal descendent rule as being too remote in time. 3The Island of Niihau remained closed to the U.S. officials, but Native Hawaiians from Niihau 

travelled to Kauai to meet with the officials and expressed their desire for more autonomy for 

Native Hawaiians and better education and health services. 

Court did not reach the 14th Amendment claim that state statutes enacted for the 

betterment of Native Hawaiians violates the equal protection clause as race based 

laws. 2

In 1999, in furtherance of the Apology Resolution, the Clinton Administration 

sent a delegation from the Departments of the Interior and Justice to Hawaii on 

a fact finding mission to meet with Native Hawaiians on all the major islands in 

furtherance of reconciliation. 3 After many meetings with Native Hawaiian people, 

state officials and our congressional delegation, the Departments produced a report 

entitled: ‘‘From Mauka to Makai: The River of Justice Must Flow Freely,’’ (2000). 

Issued in September 2000, after due consideration of the Supreme Court’s decision 

in Rice v. Cayetano, the Mauka to Makai Report explains that: 

It is evident from the documentation, statements, and views received during the 

reconciliation process undertaken by Interior and Justice pursuant to Public 

Law 103–150 (1993) that the Native Hawaiian people continue to maintain a 

distinct community and certain governmental structures and they desire to increase their control over their own affairs and institutions. As a matter of justice 

and equity, the Departments believe the Native Hawaiian people should have 

self-determination over their own affairs within the framework of Federal law, 

as do Native American tribes. For generations, the United States has recognized 

the rights and promoted the welfare of Native Hawaiians as an indigenous people within our Nation through legislation, administrative action, and policy 

statements. To safeguard and enhance Native Hawaiian selfdetermination over 

their lands, cultural resources, and internal affairs, Congress should enact further legislation to clarify Native Hawaiians’ political status and to create a 

framework for recognizing a government-to-government relationship with a representative Native Hawaiian governing body . . . 

Mauka to Makai, Recommendation 1. 

The Akaka bill, S. 1011, responds and fulfills this recommendation. At the September 14, 2000 hearing on the first version of the Akaka bill, the Departments of 

Justice and Interior both expressed their ‘‘general support’’ for the bill with the exception of uncertainty concerning a definition of ‘‘Native Hawaiian’’ based upon a 

1778 date. 

The Obama Administration 

In the Senate, President Obama was a co-sponsor of the Akaka bill and he voiced 

further support for the bill on the presidential campaign trail. 

We call upon Attorney General Holder and Secretary Salazar to support the Native Hawaiian Government Reorganization Act and to help our Native Hawaiian 

people secure its enactment in this session of Congress. 

S. 1011—The Native Hawaiian Government Reorganization Act of 2009 

The Native Hawaiian Government Reorganization Act of 2009, S. 1011, does not 

create or newly establish federal recognition of the Native Hawaiian people—it reaffirms the status of Native Hawaiians as a recognized native people of the United 

States. Our people have been recognized as the aboriginal, indigenous, native people 

of Hawaii since the time of annexation: 

• The Organic Act preserved the land tenure and other laws of the Kingdom of 

Hawaii; 

• Through the HHCA, the Administration and Congress expressly recognized our 

Native Hawaiian people as a ‘‘native people’’ to whom the United States owed 

a trust responsibility; 

• The Admissions Act reaffirmed the HHCA and its recognition of native Hawaiians and furthered that recognition through the preservation of the Ceded lands 

for the benefit of the native Hawaiian people, among other things; and 

• Through more than 160 statutes, Congress has continued to provide for the betterment of the Native Hawaiian people. 

The Akaka bill is a government reorganization bill, similar to the Indian Reorganization Act of 1934, 25 U.S.C. sec. 466–467. In summary, S. 1011 does the following: 

58 

• Defines the term ‘‘Native Hawaiian’’ based upon reference to the native citizens 

of the Kingdom of Hawaii at the time of the overthrow and their lineal descendants and also provides a definition based upon reference to the native Hawaiians eligible for HHCA lands and their descendants; 

• Establishes its purpose to ‘‘provide a process for the reorganization of the single 

Native Hawaiian governing entity and the reaffirmation of the special political 

and legal relationship between the United States and that Native Hawaiian 

governing entity for the purposes of a government-to-government relationship; 

• Establishes the United States Office for Native Hawaiian Relations within the 

Department of the Interior and an Inter-agency working group to consult with 

the Native Hawaiian government on issues important to our people; 

• Provides a process for reorganization of the Native Hawaiian Government and 

a process for establishing the initial roll of the Native Hawaiian community 

under the auspices of the Secretary of the Interior and provides for the adoption 

of a constitution and Native Hawaiian membership criteria by the Native Hawaiian government; and 

• Has provisions concerning the federal, state and native government authority 

and claims against the United States and the state. 

CNHA Comment on Definition 

As previously stated, CNHA strongly supports S. 1011 with revisions. We comment on the definition of Native Hawaiians for the benefit of the Committee and 

the Obama Administration. 

CNHA Supports Initial Definition of ‘‘Native Hawaiian’’ Because the Final Citizenship Rule Is to Be Determined by the Native Hawaiian Government 

S. 1011 establishes an initial definition of ‘‘Native Hawaiian’’ for purposes of establishing a base roll. We believe that it is appropriate for the Department of the 

Interior to assist the Native Hawaiian community in this way because the United 

States has a direct trust responsibility to promote the welfare of the Native Hawaiian people. CNHA also believes that in the long run it is the right and duty of the 

Native Hawaiian people to take the next step and provide an ongoing rule for citizenship in the Native Hawaiian government. 

CNHA understands that the lineal descent rule utilizing the 1778 date that Justices Breyer and Souter questioned in the Rice case would cause concern for the Justice Department. S. 1011 has improved on the state definition at issue in Rice by 

moving the timeline up by 115 years to 1893 in the first part of the definition and 

in the second part of the definition based upon the HHCA, the timeline is moved 

up by more than 140 years. 

CNHA believes that the Akaka bill provisions that establish an initial definition 

of the term ‘‘Native Hawaiian’’ are constitutional and that is of the utmost importance. This definition must be based upon a solid legal foundation since it is one 

of the essential cornerstones of the Act. Indeed, it may be wise to bring forward the 

date of the HHCA definition by referring to those originally eligible, adding a reference to those now eligible, and including the lineal descendants of said individuals. 

We note that Congress has used a base roll based upon lineal descent for Indian 

tribes. For example, The Modoc restoration act uses ‘‘lineal descendants’’—25 USC 

861a(3): 

The Modoc Indian Tribe of Oklahoma shall consist of those Modoc Indians who 

are direct lineal descendants of those Modocs removed to Indian territory (now 

Oklahoma) in November 1873, and who did not return to Klamath, Oregon pursuant to the Act of March 9, 1909, as determined by the Secretary of the Interior, and the descendants of such Indians who otherwise meet the membership 

requirements adopted by the tribe. 

The date used for the Modocs, 1873, is more remote in time than the reference 

date of the overthrow of the Kingdom of Hawaii in 1893, yet Congress determined 

that it was appropriate because of the importance of the event in the life of the native community. 

Finally, it is noteworthy that while some will point to the 14th Amendment equal 

protection clause to undermine the right of Native Hawaiians to self-government 

and self-determination within the framework of federal law, we must remember that 

the text of the Amendment and the history of its ratification reaffirm the political 

status of Native American citizens as citizens of America’s original sovereigns. The 

14th Amendment’s Citizenship Clause, which precedes the Equal Protection Clause, 

makes those persons who are at birth subject to the ‘‘jurisdiction’’ of the United 

59 

4 American Indians had to be naturalized pursuant to treaty or statute. Accordingly, most 

American Indians were not citizens until the 1924 American Indian Citizenship Act. 5 In fact, at the time of the 14th Amendment drafting, ratification and proclamation, the President and Congress were in the process of negotiating and ratifying numerous Indian treaties 

pursuant to the Indian Peace Commission, including Treaties with the Sioux, Navajo, Crow, 

Shoshone-Bannock, Cheyenne, Arapaho, Apache, Kiowa, and Comanche Nations. 

States automatically citizens, yet the Supreme Court held that this American citizenship was not to include tribal citizens because they were first and foremost subject to the jurisdiction of their own native nations. 4 The 14th Amendment’s Apportionment Clause, immediately following the Equal Protection Clause, repeats the 

original constitutional provision ‘‘excluding Indians not taxed’’ from apportionment. 

Since the original language of the Constitution is repeated, the framers of the 14th 

Amendment must have meant the original Indian affairs power—and by Indian they 

meant ‘‘native’’—comfortably co-exists with the Equal Protection Clause. 5

CNHA Requested Revisions 

CNHA recommends revisions to Section 8 and 9 of S. 1011, to ensure that our 

Native Hawaiian government authority is an effective means to embrace the responsibilities and challenges we face as a people. Any government reorganized by our 

Native Hawaiian people should be vested with the inherent powers of native self 

government and positioned to negotiate as intended with the state and federal governments to ensure effective administration of government. 

CNHA Requests Revisions to Sections 8(b)(3) and 9(e) Because As Written, It Undermines the Inherent Authority and Jurisdiction of the Native Hawaiian People 

Sections 8(b)(3) and 9(e) of the Act may inadvertently undermine the inherent authority and jurisdiction of the Native Hawaiian people by conditioning our exercise 

of governmental functions upon the successful negotiation with the United States 

and the State of Hawaii over criminal and civil jurisdiction and all other aspects 

of government. Absent such agreement, the Act would prohibit the Native Hawaiian 

government from exercising any power that is currently exercised by the Federal or 

state governments. This includes every aspect of government duties and functions, 

so as drafted the Act might prohibit the Native Hawaiian government from acting 

in furtherance of traditional laws and justice systems. For example, even the most 

basic programming of the care and welfare of children would be prohibited until negotiated. 

In contrast, the Indian Reorganization Act vested Indian tribes with existing powers of native governments while authorizing tribes to negotiate with Federal and 

state officials. The Supreme Court has recognized that Indian tribes maintain inherent authority over their members and their territory, and in fairness, the Native 

Hawaiian government should have such authority to provide for the betterment of 

our people. Such authority includes the power to determine the form of government, 

the power to determine membership, the power to operate the native government 

and carry out government responsibilities, including services and programs, power 

to approve or veto the use or disposition of native government assets, the power to 

determine domestic relations and to enforce native law on native lands. The House 

of Representatives recently affirmed the same type of authority for the Virginia 

tribes in H.R. 1385, 111th Cong. 1st Sess. CNHA respectfully submits that Sections 

8(b)(3) and 9(e) should be deleted and replaced with the following language: 

The Native Hawaiian government shall be vested with the inherent powers and 

privileges of a native government under existing law, with the exceptions set 

forth in Section 9(a) of this Act. These powers and privileges of self-government 

may be modified as agreed to in negotiations with the Federal and state governments pursuant to section 8(b)(1) of this Act beginning on the date on which 

legislation to implement such agreement has been enacted by the United States 

Congress, when applicable, and by the State of Hawaii, when applicable. This 

includes any required modifications to the Hawaii State Constitution in accordance with Hawaii Revised Statutes. Except as provided through such agreement, nothing in this Act shall preempt Federal or state authority over Native 

Hawaiians under existing Federal law, provided further that nothing herein 

shall authorize the State to regulate or tax the Native Hawaiian government 

in the exercise of its powers of self-government or management of native government lands or assets. 

60 

CNHA Requests Revisions to Sections 8(c)(2) and 8(c)(3) Because As Written, It Extinguishes Claims without Compensation 

Sections 8(c)(2) and 8(c)(3) seek to assert sovereign immunity for federal and state 

governments vis-a ́-vis existing Native Hawaiian land and breach of trust claims concerning the administration of HHCA and Ceded lands. 8(c)(2) would make these 

claims ‘‘nonjusticiable’’ and limits anyone other than the Federal Government from 

bringing such claims on behalf of the Native Hawaiian people. This raises both constitutional and policy problems. 

The Fifth Amendment provides that recognized native lands may not be taken 

without just compensation. Claims for recognized lands are also protected property 

rights under the Fifth Amendment. Congress may not extinguish these claims without compensation. 

Moreover, the Native Hawaiian Government Reorganization Act is intended to facilitate reconciliation between the Native Hawaiian people and the United States, 

and a statutory barrier to existing claims by Native Hawaiians would create further 

injustice. Even when Indian tribes were subject to termination, Congress preserved 

land claims for appropriate adjudication and resolution. See 25 U.S.C. sec. 750 

(‘‘Nothing in this subchapter shall deprive any Indian tribe . . . of any right, privilege, or benefit... including the right to pursue claims against the United States 

as authorized by the Act’’). Fairness indicates that this Act should not determine 

or limit any existing claims of the Native Hawaiian people, so a savings clause 

would be appropriate. The Supreme Court has recently ruled that the Apology Resolution provision is neutral in meaning, so it should be employed in this Act as well. 

It says simply...

Nothing in this Act is intended to serve as a settlement of any claims against 

the United States or the State of Hawaii. 

This provision should replace sections 8(c)(2) and 9(e) of the current bill. 

CNHA Requests Section 9(b) and 9(c) be Deleted Because As Written, It Prohibits 

Land Into Trust 

Section 9(b) would prevent the Secretary of the Interior from taking land into 

trust for the Native Hawaiian government. This is contrary to the interests of the 

Federal, state, and Native Hawaiian governments. As was shown in the case of 

Kaho’olawe where the 28,000 acre Island was placed in trust for the Native Hawaiian government, it may be advantageous to the Federal, state and Native Hawaiian 

governments to preserve this option to address future land issues. 

As to the Trade and Intercourse Act protection against the alienation of native 

lands, the Act either did or did not apply in the past, that cannot be changed by 

legislation today and there is no principled reason why this protection should not 

apply prospectively to Native Hawaiian lands. Accordingly, Section 9(c) should be 

deleted as well. 

CNHA Requests Language to Define the Role of the Department of Justice Because 

It Provides Proper Assistance in Line with the Federal Trust Responsibility 

The original versions of this bill envisioned a specific role for the Department of 

Justice, which we believe is important to the implementation of the bill once enacted. Language from H.R. 1711 as follows: 

The Attorney General shall designate an appropriate official within the Department of Justice to assist the United States Office for Native Hawaiian Affairs 

in the implementation and protection of the rights of Native Hawaiians and 

their political, legal, and trust relationship with the United States, and upon 

the recognition of the Native Hawaiian government as provided for in section 

8(c)(6) of this Act, in the implementation and protection of the rights of the Native Hawaiian government and its political, legal, and trust relationship with 

the United States. 

CNHA Requests Section 5(c) and Section 6(e) be Deleted Because It Is Unnecessary 

These sections are unnecessary, as the Department of Defense is currently required to participate in consultation with the Native Hawaiian community through 

various federal acts, for example, the Native American Graves Protection and Repatriation Act, the National Historic Preservation Act, and the National Environmental Policy Act. 

Conclusion—Enact S. 1011 as Revised 

Thank you for the opportunity to provide testimony. As one of many Native Hawaiian community leaders that participated in the Reconciliation Hearings held by 

the Department of Justice and Interior in 1999, as well as a participant on Senator 

61 

Akaka’s Working Group in 2000 which engaged community leaders, constitutional 

scholars, state officials and others that resulted in the first initial legislation to address this long standing issue, I respectfully request the Committee’s support. 

In this, the 50th year of statehood, 2009 is the year that Congress should enact 

S. 1011. As Native Hawaiians, we want to be responsible for our resources and for 

our communities. We want to be a full and active partner with the state and federal 

governments in resolving challenges and applying solutions in our communities. S. 

1011 represents a pathway to once again having our own voice to govern our own 

affairs, and to take our rightful place in truly applying the talent, knowledge and 

opportunities in our homeland that will enrich the lives of all in Hawaii. 

Senator AKAKA. Thank you very much, President Robin Danner, 

and thanks to all of you. 

I would like to first call on our senior Senator for any comments. 

Senator INOUYE. Mr. Chairman, I have just received notice that 

pending will be an amendment that will have a profound impact 

upon the Committee which I am honored to chair, the Appropriations Committee. Therefore I will have to leave the chamber. I 

want to express my regrets to all of you. 

I hope I may be permitted to submit questions. I will prepare 

them and submit them to you. Would that be okay? 

If you will excuse me, aloha to all. 

Senator AKAKA. Senator Inouye, we look forward and we will certainly include your statements and questions in the record. 

Chairman Apoliona, as you are aware, there were conditions by 

which Hawaii was admitted into the Union that related to the 

State adopting the Hawaiian Homes Commission Act and utilizing 

public lands for one of five purposes, including addressing the conditions on Native Hawaiians. My question to you is, how does enactment of S. 1011 affect the current efforts of the State of Hawaii 

in its treatment of Native Hawaiians? 

Ms. APOLIONA. It would seem to me that enactment of Senate 

Bill 1011 would enhance the current and future position of Native 

Hawaiians as defined under the Admissions Act, and be even more 

inclusive of, as was stated by a couple of the testifiers, inclusive of 

Native Hawaiians as a people, as a unified people, moving toward 

the creation of this Native Hawaiian governing entity. 

If I recall, back when, in some of the Congressional records and 

the discussion that went on when delegate to Congress, Kuhio 

Kalaniana’ole, fought so hard for the Hawaiian Homes Commission 

Act, he was really after opening the benefits of the Act that he had 

in mind, as Chairman Kane says, to rehabilitate the Hawaiian 

community. His goal was for the broadest opportunity to serve his 

Hawaiian people. 

So I think this S. 1011 will be a return to that philosophy of engaging the most inclusive and strongest participation by Native 

Hawaiians for the future. 

Senator AKAKA. Thank you for that response. I know you were 

here at the lei draping of King Kamehameha in June. 

Ms. APOLIONA. Yes. 

Senator AKAKA. For anyone that might question whether or not 

the Native Hawaiian culture exists in Hawaii, as well as throughout the Country, for this momentous occasion in June, in our Nation’s capital, does the Native Hawaiian culture still exist? 

Ms. APOLIONA. Absolutely, Senator Akaka. And I think Chairman Kane, in previous testimonies, has said that even those who 

62 

are not Native Hawaiian of the blood have become part and beneficiaries of Native Hawaiian culture. 

Senator AKAKA. Can you share some of the events, activities that 

were significant, the types of activities? 

Ms. APOLIONA. Absolutely. Certainly the demonstration of, at 

Emancipation Hall, the demonstration of oli, our mother tongue, 

our chants, our hula, in celebration and in honor of our historic 

leader, indigenous leader, Kamehameha, and celebration of those 

indigenous leaders that followed him. 

But certainly Kamehameha the Great, whose statue is in Emancipation Hall under that skylight, sits for the next decade and beyond for Native Hawaiians a prominent place for now our Kamehameha the Great, the indigenous leader who united in one governance Native Hawaiians back in the late 1800s, now this effort to 

continue a united governance for Native Hawaiians in the 21st century seems to me to be a continuation of this intended leadership 

to support, enhance and bring, continue to being well-being to his 

Native people. 

Senator AKAKA. Mahalo. Thank you for your responses. 

Chairman Kane, the purpose of establishing the Hawaiian 

Homes Commission Act, as you know, was to rehabilitate Native 

Hawaiians by returning them to the land. Questions have been 

raised whether or not a distinct Native Hawaiian community exists 

in Hawaii. Do you have any comments for the Committee to consider on this issue? 

Mr. KANE. Yes, I would. Thank you, Senator, to be able to comment on this question. 

Without question, we do have distinct Hawaiian communities. 

My comments that I alluded to in my testimony were to express 

really what we believe will solidify the future prosperity of our 

State, which is the sharing of our culture with others. 

So while we have distinct communities, we embrace others. The 

further our success is in that effort, the better off we will be as a 

State. Our prosperity as a State lies in our ability to assure our 

culture exists in these lands forever. Otherwise, it is just a pretty 

place. This bill allows us to do that. 

Senator AKAKA. As you know, Mr. Kane, the cost of living in Hawaii is much higher in comparison to other States. Hawaii’s housing costs are among the highest in the Country, and homelessness 

is at a record level. What role would you say homestead leases 

have on the ability of Native Hawaiians to continue to reside in 

Hawaii, rather than to seek employment or housing elsewhere? 

Also, is it uncommon for individuals who have lived outside of Hawaii for a number of years that are awarded homestead leases to 

return to Hawaii despite the high costs of living? 

Mr. KANE. We are seeing a tremendous amount of people returning to Hawaii as a result of the acceleration that has occurred over 

the past few years. People coming home and being a part of the 

communities that they left because of the economic and housing 

challenges that existed in our State. 

I think some of the testimony we heard from Ms. Danner is a 

commentary that tells you how important our homestead program 

is to our people and the role that it is playing. I think in Hawaii, 

one of the misconceptions is that when a person gets into a home, 

63 

that is the end point. For us, that is just the beginning. Home ownership is the beginning for somebody to launch their lives off to a 

much better place. It is not an end point. 

The authority that you are giving us as an entity, the Department of Hawaiian Home Lands, to do that, is a tremendous authority, a tremendous resource that we are providing our people. We 

are seeing Hawaiians today serving in leadership positions that we 

may not see other natives serve in other States. And in our cabinet 

alone, we have four Native Hawaiians who serve. Our previous 

chief of staff was a Native Hawaiian. Our Lieutenant Governor is 

a Native Hawaiian. Our Senator is a Native Hawaiian. 

And I think all of that is in part due to the Hawaiian Homes 

Commission Act. 

Senator AKAKA. Can you describe, Mr. Kane, the kind of relationship Hawaiian Homestead communities have with neighboring 

communities and businesses, especially given the regional planning 

that occurs? 

Mr. KANE. The Department of Hawaiian Home Lands is operating in 20 regions throughout the State of Hawaii. In each of 

those regions, DHHL is only a portion of the land ownership there. 

However, in those regions, we partner in all infrastructure improvements: roads, water, sewer and public facility needs. That allows us to do a few things. It allows us to focus our resources and 

have better uses of our resources. 

From a cultural standpoint, it allows us to share in those things 

that we feel are important, to see non-Hawaiians sharing in our 

language and actually speaking in our language. It allows us to be 

much more efficient in the efforts that we are undertaking. 

We utilize licenses of agreements, memoranda of agreement with 

our counties, land use decisions are made in coordination with both 

State land use policy as well as county land use policies. When we 

build, we designate zoning and we build to that county’s zoning 

standards. And we create memoranda of agreements to guide the 

maintenance of those utilities going forward. 

So a lot of the issues that people have raised over the years with 

regard to some of the concerns of how our entities would interface 

with other government agencies are already in practice today, and 

those things are happening within the Department of Hawaiian 

Home Lands today. 

Senator AKAKA. Thank you. 

Mr. Bartolomucci, does this bill create a race-based government? 

You did have a statement on that. 

Mr. BARTOLOMUCCI. It creates a governing entity for Native Hawaiians. In terms of the legal issue presented by that, the Supreme 

Court case law is very clear that the Congress may deal with indigenous, sovereign groups and their governing structures on a government-to-government basis. That is not to be considered racebased legislation that would otherwise run afoul of constitutional 

restrictions on race-based action. 

So the ability of the Congress to deal with Indian tribes and governing structures of other Native peoples is well established and 

does not run afoul of equal protection principles. 

Senator AKAKA. How do you think this bill affects personal property, social services and citizens’ rights? 

64 

Mr. BARTOLOMUCCI. I don’t believe it would diminish anyone’s 

rights in those regards. The bill does require the governing entity 

to include protections for civil rights. But of course, the members 

of the governing entity would always remain United States citizens 

and retain all of the rights of U.S. citizens. 

Senator AKAKA. Upon enactment of S. 1011, would Native Hawaiians be subject to the laws of the United States? And can you 

explain, is the status quo maintained? 

Mr. BARTOLOMUCCI. The members of the governing entity would 

absolutely be subject to the laws of the United States. Indian tribes 

and other Native governing structures are not above the law or not 

above Federal law and remain subject to Federal law, which remains the supreme law of the land. 

Senator AKAKA. Thank you for your responses. 

President Danner, there is a misconception that enacting S. 1011 

will only benefit Native Hawaiians. As a grassroots member-based 

organization, focused on improving community development, can 

you explain how Federal recognition helps address community, Native and non-Native, needs? 

Ms. DANNER. Thank you for the question, Senator. 

I agree with Chairman Kane when he says that the advancement 

of Native Hawaiians in Hawaii raises the standard of living, the 

quality of life, of all citizens of our State. The misconception that 

Senate Bill 1011 would serve only Native Hawaiians is false, just 

as in the 35 States, 36 States where federally-recognized Native 

governments around the rest of the Country are impacting in a 

very positive way their respective States. 

I will give an example, in Hawaii, it started about 10 years ago, 

some of our grassroots communities were very concerned about 

education and putting forward solutions in the arena of education 

and making sure that the knowledge of our ancestors was properly 

and also taught along with the academia of reading, writing, but 

also sharing the sciences of our astronomy and such. Now, 10 years 

later, that charter school movement, Native Hawaiian-focused 

charter schools, are enriching the educational system across the 

State for all communities, whether a Native child or a non-Native 

child. It is truly one of the bright spots of local education and what 

happens when communities are empowered to take the resources 

and the identities of their place on the planet into communities to 

advance solutions to challenges facing them. 

Senator AKAKA. In your testimony you mentioned that you are 

presently a homesteader on Hawaiian home lands. You also lived 

in American Indian and also Alaska Native communities as well. 

What impact on these communities has the policy of Federal recognition had? How has the government-to-government relationship 

unified and supported working relationships between Natives and 

non-Natives in the States where you have resided? 

Ms. DANNER. That is a great question. There are stark contrasts. 

Clarity, for one. In those locations where there is a government-togovernment relationship, there is clarity not only for the Native 

community but for the community outside. There is clarity of where 

to go and where issues can be dealt with. There is a representative 

body, a clear representative body that is longstanding and can be 

engaged, and there is a process, a known process. 

65 

Another is that Federal recognition has brought to other indigenous peoples a focal point, really a way to have the great debate 

about the challenges of the day. And what cultural norms, customs, 

can be codified within that Native community and applied as a solution. 

For example, child foster care. We have witnessed Native governments being able to support and assist State governments that 

have not done so well in terms of reunification with children with 

families. But yet when a Native government is present and able to 

apply solutions for that family, we have seen a rise in reunification 

of Native children with an extended family. That would be one example. 

And finally, I would say my last example would be, you can 

clearly see centralized programming and dialogue and partnerships 

more easily integrated and executed out into the community when 

Federal recognition is a known quantity and the community knows 

what their representative body is. 

Senator AKAKA. Ms. Danner, you served as an original member 

of the Native Hawaiian task force, one of the five task forces established to contribute to the initial drafting of this legislation. Can 

you share with the Committee who the other task forces were and 

how the bill benefited from the contributions and expertise of the 

other task forces? 

Ms. DANNER. Yes, Senator. After the Clinton Administration Department of Justice and Department of Interior in 1999 came out 

for the reconciliation hearings and spent an inordinate amount of 

time, went all around the State speaking with our communities, in 

2000 there were five working groups or task forces appointed by 

our Hawaii delegation and chaired by you, Senator. 

Those task forces, we had a Congressional working group of Congressional representatives. We had a working group of Federal officials from across the different agencies in the Federal Government 

that worked with Native programs. We had a State government officials working group that we were able to integrate and discuss 

and look at the angle of State agencies. We had a constitutional 

scholars working group from all around the Country taking a look 

at the constitutionality and learning, frankly, from the previous 

eras of Federal Indian policy. 

And the fifth working group was a Native Hawaiian community 

leaders working group with individuals with diverse backgrounds 

from all across the State, from various areas of expertise. It was 

a very intense and rewarding process to be able to be having a very 

in-depth dialogue, multi-faceted conversation about getting results 

and what would work and what would work best, not just for the 

Native Hawaiian community but for our State. 

Senator AKAKA. Thank you. When I think back to the five task 

forces, it really helped us craft the bill. And as I mentioned in my 

testimony, all of this too began with the Mauka-Makai study that 

was made and the report that was written. So we have progressed 

from that beginning to where we are today. All these years, I think 

the core goals that we have set are still prominent and good for the 

future of Native Hawaiians. So we really appreciate the contributions that all of you and the panel have made. We certainly appreciate that. 

66 

I just wanted to ask Mr. Gunn a question. Can Native Hawaiians 

be treated as other Native Americans by Congress under the Indian Affairs power? 

Mr. GUNN. Thank you, Senator Akaka. 

I think the answer is a definitive yes. As Professor Benjamin 

noted, there is no definition of Indian or Indian tribe in the Constitution. The Constitution does use both of those terms. It references in the Commerce Clause Indian tribes and then in the Apportionment Clause and then again in the 14th Amendment, it 

speaks of Indians. 

In regard to the term Indian Tribe, it has been used synonymously or interchangeably with the term Indian Nation. Hamilton 

in Federalist 24 talked about regulating trade with Indian tribes 

and spoke of them as Indian nations. And 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. 

Native Hawaiians are clearly a nation, both prior to and after 

contact with Europeans, the United States in fact entered four 

treaties with the Native Hawaiian nation. So clearly, Native Hawaiians are a nation of Native people. 

The term Indian has been used interchangeably with the term 

aboriginal. 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. 

The Constitution, of course, was written, ratified, I should say, 

in 1789 when there were 13 colonies. But it has been applied and 

those terms, Indian tribes and Indians, have been applied to Native 

peoples beyond the original 13 colonies. And just as Natives in 

States and territories beyond the original 13 colonies, including 

Alaska Natives, have been included in the definition of Indian, so 

too should Native Hawaiians. 

Senator AKAKA. Is it significant that the United States minister 

and naval forces participated in the overthrow? 

Mr. GUNN. I think so, Senator, in that the United States was involved in the course of events that undermined or led to the overthrow of the Native Hawaiian kingdom. The United States has 

apologized for that. It has in the 100 years and even the many 

years between the overthrow and the Apology Resolution, and the 

years since the Apology Resolution, maintained a steadfast commitment to the welfare and betterment of Native Hawaiian people. It 

wasn’t long after the overthrow that the United States passed the 

Hawaiian Homes Commission Act, and then reaffirmed the promise 

of bettering the lives of Native Hawaiians 50 years ago, in the 1959 

State Admissions Act. 

It is only fitting now, in the 50th anniversary of Hawaiian statehood that Congress and the United States take the next step toward bettering the lives of Native Hawaiians by reorganizing the 

67 

Native Hawaiian government that was overthrown with United 

States involvement. 

Senator AKAKA. So just to make that point again, most scholars 

agree that the Hawaiian Homes Commission Act and the State Admissions Act are constitutional. Do you agree? 

Mr. GUNN. I do, Senator. I absolutely agree. I would agree with 

the statements that have been made before me that the United 

States has authority to legislate in behalf of Native peoples. That 

derives from the Constitution. 

In the written comments that I have submitted, I address the 

issue of whether Congress is constrained or limited by principles of 

equal protection when it legislates in behalf of Native people. And 

I would like to just address that briefly. 

The equal protection principle in the U.S. Constitution finds its 

birthplace in the 14th Amendment, which of course was one of 

three amendments ending slavery and guaranteeing the right of 

citizenship and the vote to freed African American slaves. The 14th 

Amendment contains the equal protection clause, the 5th Amendment Due Process clause has what is called an equal protection 

component. 

But the 14th Amendment spoke specifically of Native Americans. 

In Section 2, American Indians are excluded from apportionment of 

representatives in the House, and Indians not taxed are excluded. 

And in Section 1, it is quite clear that Indians are not included as 

citizens of the United States because only persons born in the 

United States and subject to the jurisdiction of the United States 

were to be included as citizens. That quite clearly at the time did 

not include Indians. The legislative history is clear, and the Supreme Court made that clear just a few years later in Elk v. Wilkins. 

I mention this because the birthplace in our Constitution of the 

doctrine of equal protection is also, it is the 14th Amendment, and 

that is also an amendment that affirms that Native peoples are 

separate. They are separate, they were not citizens of the United 

States, they had their own governments, and they still do, to which 

they owed allegiance. And the United States had a history of enacting treaties with and legislation for Indian people. By repeating 

that phrase, Indians not taxed, which was used in the original Constitution, Congress and the United States ratified that policy of 

treating Indians as members of separate nations and considering 

them as distinct. 

So when Congress passed the Hawaiian Homes Commission Act 

and the Statehood Act, it was doing what it was constitutionally 

permitted to do, which is, treat natives as citizens of their own distinct, separate nations. 

I will note that even if one were to say that principles of equal 

protection were to apply, applied against the Federal Government 

by virtue of the 5th Amendment, I would suggest that the Hawaiian Homes Commission Act is clearly constitutional, because it fulfilled a compelling government interest, and it was narrowly tailored to achieve that purpose. The same with the Admission Act. 

Senator AKAKA. Let me ask, is there a precedent for the Native 

Hawaiian definition using one-half Hawaiian blood in lineal descendants? 

68 

Mr. GUNN. In the Indian Reorganization Act of 1934, the definition of Indian included any member of a federally-recognized tribe 

or Indians of one-half blood quantum. So there is a precedent for 

the use of blood quantum. 

I would just concur with the views of others before me that although Congress has used blood quantum in the past, and although 

it may use it in this piece of legislation to set the outer boundaries 

of tribal membership, tribes have, and ought to continue to have 

the ability to define their own membership further. And the Native 

Hawaiian governing entity created by S. 1011 should be permitted 

to set its own standards including any standard based on close connection to the Native Hawaiian community, as suggested by Professor Benjamin. 

Senator AKAKA. Just as an interest here, how does S. 1011 compare to the Indian Reorganization Act? 

Mr. GUNN. It is similar in some respects and dissimilar in others. 

The similarities include allowing Native nations to reorganize and 

to form constitutional governments with full Federal recognition. 

And in the case of the Indian Reorganization Act, of course, it followed a long period of allotment and assimilation of Indian lands 

in the continental 48. And that period of allotment and assimilation, which started in 1887, was terribly destructive to Native governments, Native political organizations and Native communities. 

The Reorganization Act took, damaged Indian communities and allowed them to reorganize their Native forms of government. 

S. 1011 does the same thing for Native Hawaiians, Native Hawaiians who have seen their Native form of government damaged 

by the history of events including the Federal Government’s involvement. But Native Hawaiians have not lost their distinct culture or their existence as a distinct community. And just as were 

tribes in the lower 48 allowed to reorganize in 1934, so too will the 

Native Hawaiian people. 

S. 1011 is distinct from the Indian Reorganization Act in that it 

does allow for a continued negotiation process with the State and 

Federal governments to define the scope of Native powers, whereas 

under the IRA, Native governments were vested with all powers of 

Native governments under then-existing Federal law. For the Native Hawaiians, they will, as the legislation is currently drafted, 

they will be required to negotiate further with the Federal and 

State governments before they can acquire all of the inherent powers of Native governments. The CNHA has submitted comments 

suggesting some revisions to that provision of the legislation, and 

we are available to discuss those with the Senator. 

Senator AKAKA. Let me ask my final question to you. Do you believe that S. 1011 is constitutional? 

Mr. GUNN. Absolutely. I think for the reasons I said before, Congress has the power to treat with and enact legislation for American Indians that is not fettered by the principle of equal protection. The Constitution did not include American Indians within the 

American democracy. They had their own democracies. They were 

members of distinct nations. They were not counted for apportioning representatives. 

The U.S. made treaties with them that regulated commerce with 

them. But they were members of their own democracies. And that 

69 

policy was continued in the 14th Amendment, the very birthplace 

in our constitution of the principle of equal protection. So by putting that policy of separatism in the very same amendment that 

finds the birthplace of equal protection, the United States was saying, we will continue to treat Indians as members of separate nations and to treat with them and to legislative for their betterment. 

And doing so would not violate principles of equal protection. 

So yes, there is certainly no equal protection bar, in my view, to 

S. 1011. And in terms of whether Native Hawaiians are distinct 

enough an Indian group to recognize them, whether they constitute 

a tribe under the Constitution, I think the answer there is also 

clear, and that is in the affirmative. 

Senator AKAKA. Thank you very much for your responses. 

I would like to conclude the questions by giving each of you on 

the panel a chance to make any further comments about the bill 

or even comments referring to other parts of the testimonies that 

have been given here. So let me just ask each of you for any further comments. We will start in order. 

Ms. APOLIONA. Well, we can go reverse order, Senator, that is 

fine. 

[Laughter.] 

Ms. APOLIONA. Because then I will end. Go ahead, Robin. Do you 

want to start? 

Ms. DANNER. I guess my closing remark would be that it has 

been a 10-year journey. I would like to thank the Senate Committee on Indian Affairs for over the years continuing to move this 

legislation forward under its jurisdiction. I would like to thank you, 

Senator Akaka, for moving it. As I started my testimony in the beginning, this is likely, from a community-based organization perspective, likely the single most important public policy piece of legislation for Hawaiians today and for generations to come. 

So thank you very much, and I would like to pass to Christopher. 

Senator AKAKA. Mr. Bartolomucci. 

Mr. BARTOLOMUCCI. Just to elaborate on something I addressed 

in my opening statement about the definition of the term Native 

Hawaiian in the bill. To be clear, this bill does not establish the 

definition of Native Hawaiian that will limit who may be a member 

of the Native Hawaiian tribe, if you will. It will be up to the Native 

Hawaiian people to decide what the membership criteria are and 

who qualifies for membership in the tribe. 

This bill simply sets in process, sets in motion the process of getting to that point. So there must be an initial definition, a broad 

initial definition to determine who may participate in creating the 

criteria for the interim governing council and vote for that council, 

which will in turn establish organic documents and permit elections for future leadership. 

So the initial definition is broad, but that is clearly by design, it 

is meant to be inclusive. But it doesn’t dictate the criteria for membership ultimately in the tribe of Native Hawaiians. I think that 

is important to keep in mind in assessing a possible objection that 

the definition is too broad. 

Thank you, Mr. Chairman. 

Thank you. 

Chairman Kane. 

70 

Mr. KANE. Senator Akaka, I would like to just take my time to 

thank you for the support you have given us to bring this issue to 

this Committee. I would like to also extend that gratitude to Senator Inouye as well as Senator Murkowski, who has been a longstanding supporter with us in this effort. 

And also I want to thank the members of this panel, because it 

clarified even for myself more clearly how this is not only right, but 

it is righteous. And while this has been a long journey for us, I 

think we said close to 10 years now, I think we are at a point 

where it is pono, it is right. I look forward to continuing this dialogue in a very expeditious and good way. 

Mahalo. 

Senator AKAKA. Mahalo. Thank you. 

Professor Benjamin. 

Mr. BENJAMIN. Many things I could say, I would just pick up on 

one point about the definition. As I noted in my testimony, of 

course this is just the definition of who gets to decide. The question 

is, do you want to leave open that group of who gets to decide to 

the possibility that it is this very, very broad, somewhat inchoate 

group that would include people from all 50 States? 

My suggestion would be that leaving it open to that group raises 

the greater possibility of a challenge that the group that has been 

included does not meaningfully constitute a tribe. The way to eliminate that is to have a narrower definition as to who gets to be included in the first place. 

Senator AKAKA. Thank you, Professor. 

Chairman Apoliona? 

Ms. APOLIONA. [Phrase in native tongue.] Senator, 116 years ago, 

our Native Hawaiian government was ended. And I come today and 

have come today as one of the nine voices of the board of trustees 

speaking to what we believe to be our mission as the Office of Hawaiian Affairs to help to make right that past history. 

I see our role as bringing some correction, bringing some restoration to the government that was overthrown illegally as our Apology Bill has stated. 

As one of the nine voices of trustees of the Office of Hawaiian 

Affairs, we through our fiduciary and constitutional mandate firmly 

believe that S. 1011, H.R. 2314 must move forward. Because it provides, as I said, some opportunity to make the future better, to try 

to correct the past. The past is the past, much we cannot return 

to, but we can certainly learn from. As leaders move forward for 

the future, looking to unify our Hawaiian community for the greater well-being for the next generations to come, it is critical. 

So we thank you, Senator Akaka, and of course, Senator Inouye, 

our delegation, our representatives as well from the House, and all 

those Congressional leaders who have, who continue and who will 

support the passage of our Native Hawaiian Government Reorganization Act. With that passage, tremendous work will need to 

begin in organizing our community of Native Hawaiians in Hawaii 

and away from our shores. Because we have great Hawaiian leaders, even here on the East Coast, with the Hawaiian Civic Clubs. 

I thank you again for your kokua, your support, and your tenacity. Aloha. 

71 

Senator AKAKA. Aloha, and mahalo nui loa to all. Thank you very 

much. 

I want to thank all the witnesses for your testimony, especially 

those who have traveled to join us here today. 

In closing, the spirit of aloha and the spirit of love and compassion is the legacy of the Native Hawaiian people. It is a way of life 

for Native Hawaiians. Despite being marginalized and 

disenfranchised in their own homeland, it is a value they continue 

to share. Despite such challenges to their culture and cherished institutions, the Native Hawaiian people have endured. 

It is time Congress and our Nation take the next step with them 

in honoring their resilience and bring about meaningful healing 

through the enactment of S. 1011. 

My colleagues and I may wish to submit questions to our witnesses in response to your testimony provided today. For those not 

present to testify, the hearing record will be open until August 

21st, 2009. 

So mahalo nui loa, thank you very much. This hearing is adjourned. 

[Whereupon, at 4:50 p.m., the hearing was adjourned.] 

(73) 

1 Brief in Opposition to Petition for Writ of Certiorari at p 18, Rice v. Cayetano, 528 US 495 

(2000). 

A P P E N D I X 

PREPARED STATEMENT OF HON. TOM A. COBURN, MD, U.S. SENATOR FROM

OKLAHOMA

Chairman Dorgan, Dr. Barrasso, I want to thank you for this opportunity to express my opposition to S. 1011, the Native Hawaiian Reorganization Act of 2009, 

which was recently agreed to by the Committee. 

I appreciate the Committee’s support for my amendment to S. 1703. However, I 

regret that I was unable to stay for the remainder of the Committee Business Meeting when S. 1011 was considered due to other responsibilities. Had I been able to 

stay, I would have made clear my firm opposition to this bill. 

Recognizing Native Hawaiians as an Indian tribe and sovereign entity without 

participating in the standard federal recognition process sets a dangerous precedent, 

threatens the framework of our nation, and, above all, is unconstitutional. 

While S. 1011 was passed in my absence and was considered unanimous by some, 

I ask that the record clearly reflect my full and firm opposition to S. 1011. 

As my colleagues on this committee know, this bill has been around for some 

time. While it has appeared in various forms, and been amended on several occasions, I do not believe it will ever meet the one test that matters most—Is it constitutional? 

I have many concerns with this bill, and will address those concerns in documents 

I will officially submit for the record; however, I would like to focus my many comments today on the constitutional question that underpins this entire effort 

Is the bill Constitutional? 

Section 2 of this bill reads: ‘‘Congress finds that—(1) the Constitution vests Congress with the authority to address the conditions of the indigenous, native people 

of the United States;’’ 

Section 4 reads, in part: ‘‘Congress possesses the authority under the Constitution, including but not limited to Article I, section 8, clause 3, to enact legislation 

to address the conditions of Native Hawaiians.’’ 

Since it is the only provision of our Constitution specifically mentioned in the bill, 

I think it is important we all read Article I, Section 8, Clause 3: ‘‘Congress shall 

have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;’’ 

In other words, this entire bill rests upon the ability of Congress to regulate commerce with Indian tribes. 

Supporters of this bill will argue that ‘‘Indian tribes’’ also refers to ‘‘indigenous 

peoples.’’ I adamantly disagree with that interpretation, and while each individual 

member will have to decide this issue based on their reading of the Constitution 

and their Oath, I believe the historical record is clear. 

I intend to submit for the record volumes of information I think will make this 

point clear. In the meantime, we should examine the words and statements of the 

bill’s most ardent supporters on this essential question: 

In 1998, the State of Hawaii (now one of the strongest supporters of the bill— 

expending considerable resources) had this to say in a brief before the US Supreme 

Court: ‘‘the tribal concept simply has no place in the context of Hawaiian history.’’ 1

Senator Inouye—one of the most respected men to ever serve on the Indian Affairs committee—had this to say: ‘‘Because the Native Hawaiian government is not 

an Indian tribe, the body of Federal Indian law that would otherwise customarily 

apply when the United States extends Federal recognition to an Indian tribal group 

does not apply.’’ 

Senator Inouye went on to say: ‘‘. . . That is why concerns which are premised 

on the manner in which Federal Indian law provides for the respective governVerDate Nov 24 2008 13:37 Oct 05, 2010 Jkt 054811 PO 00000 Frm 00077 Fmt 6601 Sfmt 6621 S:\DOCS\54811.TXT JACK PsN: JACKF
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2 Inouye, Senator Daniel, ‘‘Statement on Introduced Bills and Resolutions.’’ January 25, 2005. 

3http://memory.loc.gov/ammem/today/jun02.html 

4http://www.capitol.hawaii.gov/hrscurrent/Vol01lCh0001-0042F/03-ORG/ORGl0004.HTM 

mental authorities of the state governments and Indian tribal governments simply 

don’t apply in Hawaii.’’ 2

In other words, the very foundation on which this bill is based—Congress’ ability 

to regulate commerce among Indian tribes—is highly questionable. 

On the one hand, the authors of this bill claims that Native Hawaiians are an 

‘‘Indian tribe’’ as a basis for Constitutional authority, and on the other hand, claim 

it is in fact NOT an ‘‘Indian tribe’’ for purposes of Indian law. 

If the statements of the bill’s supporters are accurate, it is not even clear whether 

our committee has proper jurisdiction to review this bill. 

There simply is no comparison to Indian tribes, or even to Alaska Native 

Corporations. 

This bill does not restore ‘‘tribal status’’ where it once existed; It creates an entirely new government based solely on race. The Kingdom of Hawaii was a diverse 

society and government (much like the state today). The new ‘‘tribe’’ will not reflect 

that tradition and will create a government just for those deemed ‘‘indigenous.’’ 

Unlike the many Indian tribes in my state whose governments were subsequently 

terminated, no such history exists for a Native Hawaiian entity. 

American Indians were not even formally given full citizenship until 1924. 3 In 

contrast, Native Hawaiians became citizens of this country in 1900, twenty four 

years earlier. 4 Native Hawaiians took part in the referendum that brought Hawaii 

into the Union as a state, and as one government. 

In Oklahoma, and even in Alaska, there were distinct tribal populations with existing governments at the time of statehood. That was not the case in Hawaii. In 

Alaska, distinct tribal communities existed at the time of statehood and were addressed in that state’s organic documents. Again, that is not the case in Hawaii. 

What is the solution? 

If the Native Hawaiians are entitled to sovereign tribal government status, as this 

bill presupposes, the solution is quite simple. 

As my colleagues on this committee know well, the Federal Government already 

has in place an established and rigorous seven step process for recognition of tribal 

governments. This review is handled by the Office of Federal Acknowledgement 

(OFA). 

This process is applied evenly to all who apply, and takes politics out of the equation. 

This Committee should take the supporters of Native Hawaiian governmental recognition at their word. If they are indeed a tribal government with historic ties to 

the Federal Government, and who has continued to exercise continuous governmental authority after a any termination, a Native Hawaiian entity should submit 

an application to OFA. 

The Legislative Process 

It is my hope the Committee will hold additional hearings to hear the concerns 

of the bill’s opponents. While I mean no disrespect to the panel before us today, it 

is clear that most strongly favor the creation of a separate Native Hawaiian government. 

In contrast there are dozens of senators, including me, who believe this bill is a 

violation of our oath to the Constitution and a major affront to the Indian tribes 

in our states who have labored to regain their rightful recognition. 

The road ahead for this bill will not be an easy one. I, along with many of our 

colleagues, will never give consent to moving forward on this bill. 

If, as rumored, an attempt is made to attach this bill to an appropriations bill 

in the future, again many of us will vigorously fight to defeat it. 

I look forward to our continued conversation on this bill, and thank the Chairman 

and Dr. Barrasso for their willingness to consider my very serious concerns. 

75 

PREPARED STATEMENT OF STEVEN JOSEPH GUNN, ATTORNEY AND ADJUNCT

PROFESSOR OF LAW, WASHINGTON UNIVERSITY IN ST. LOUIS


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PREPARED STATEMENT OF HON. MAUI LOA, CHIEF, HOU BAND OF NATIVE HAWAIIAN

INDIANS OF THE BLOOD OF HAWAII

Is it known by the honorable senators sitting on this Indian Affairs committee 

and staff that the majority population of Hawaii at the time of statehood was Asian 

American? Senator Akaka and Senator Inouye are Asian Americans. They are as 

much natives of Hawaii as this bill is: which is to say not at all. This so called ‘‘Native’’ ‘‘Hawaiian’’ gibberish is not an Indian bill. It does not belong in this committee. It does not belong in any committee unless there is a committee wherein 

to codify Asian Americans continuing to loot the federal treasury by coming up with 

schemes to use us, the actual native recognized in our small numbers by this congress since 1921. 

Another Asian American senator, Hiram Fong, inserted the very same phony alleged Asian American posing as a ‘‘Native’’ of the U.S. in Public Law 93–644 into 

Native American appropriations. That led to three U.S. Supreme Court rulings finding that the scheme being promoted today is a made up, unconstitutional scheme. 

Will it take three more U.S. Supreme Court rulings to finish off this fraudulent 

scheme for good? 

Hawaii’s dishonorable, lying Asian American senators are joined in this scheme 

in the congress by delegates from actually insular territories. Hawaii hasn’t been 

an insular territory so has had no insular minorities since 1959. Alaska joins them 

as well even though Ted Stevens, Senator Inouye’s partner in the Alaskan Native 

Corp. scheme, was driven out of the Senate involving corruption in the Alaskan Native Corporation scheme. 

Hawaii’s Asian American majority population at the same time as it is promoting 

made up gibberish like this bill continues to steal my land and my people’s land. 

Hawaii’s Asian American majority population since I first established my people as 

eligible for federal Native American assistance has looted around 23 billion dollars 

in U.S. Native American funds: they figure if the U.S. was stupid enough to let 

them get away with it up to now the U.S. is stupid enough to give them the legal 

cover of this bill to continue to get away with it. This entire matter belongs in a 

criminal court, not a committee in congress because this is a legal matter, not a political one: Shame on this committee. Here is the same testimony the actual native’s 

only voice in congress from Hawaii made in the hearings of Public Law 93–644 

when Senator Inouye and Senator Fong hatched the very same plot this hearing is 

a sorry recent chapter in: 

‘‘Fong’s catch-all definition adopted by the rules and regulations committee governing Native American programs contains no protective provisions for indigenous Hawaiians (i.e. the ‘‘classic’’) as defined in the Hawaiian Homestead Act 

of 1920.’’ 


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Attachment 


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PREPARED STATEMENT OF MARK VAN NORMAN, MEMBER, CHEYENNE RIVER SIOUX

TRIBE (LAKOTA) OF SOUTH DAKOTA


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PREPARED STATEMENT OF STEPHEN KAAA, PRESIDENT, NATIVE HAWAIIAN CHAMBER

OF COMMERCE


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PREPARED STATEMENT OF H. WILLIAM BURGESS, FOUNDER, ALOHA FOR ALL


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PREPARED STATEMENT OF JAMES I. KUROIWA, JR. 


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PREPARED STATEMENT OF HON. MARK J. BENNETT, ATTORNEY GENERAL, STATE OF

HAWAII


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PREPARED STATEMENT OF MICHAEL W. GIBSON


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PREPARED STATEMENT OF SHELBY FOSTER


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PREPARED STATEMENT OF TOBY M. KRAVET


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PREPARED STATEMENT OF ZURI AKI


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PREPARED STATEMENT OF GARRY P. SMITH

PREPARED STATEMENT OF EARL ARAKAKI


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RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO

H. CHRISTOPHER BARTOLOMUCCI


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***Response to the following written questions was not available at the time this 

hearing went to press.*** 


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WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO

HON. SAM HIRSCH


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WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO

STUART M. BENJAMIN

The June 7, 2006 Legislative Notice on S. 147 and the Brief Amicus Curiae of 

Pacific Legal Foundation, The Cato Institute, and the Center for Equal Opportunity 

in Support of Petitioners—Docket No. 07-1372 have been retained in Committee 

files and can be found at: 

http://rpc.senate.gov/public/lfiles/L40S147NatHawJune706SD.pdf 

http://www.cato.org/pubs/legalbriefs/HawaiilvlOHA.pdf 

Æ 


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