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35–139 PDF 2008

S. HRG. 110–287

S. 310, THE NATIVE HAWAIIAN GOVERNMENT

REORGANIZATION ACT OF 2007

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MAY 3, 2007

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

CRAIG THOMAS, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

SARA G. GARLAND, Majority Staff Director 

DAVID A. MULLON JR. Minority Staff Director 

(III)

C O N T E N T S 

Page 

Hearing held on May 3, 2007 ................................................................................. 1

Statement of Senator Akaka ................................................................................... 4 

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

Statement of Senator Inouye .................................................................................. 5

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

Statement of Senator Murkowski ........................................................................... 9 

Statement of Senator Thomas ................................................................................ 3

WITNESSES

Apoliona, Haunani, Chairperson, Board of Trustees, Office of Hawaiian Affairs; accompanied by William Meheula, Legal Counsel to the Office of 

Hawaiian Affairs .................................................................................................. 23

Prepared statement .......................................................................................... 24

Bennett, Mark J., Attorney General, State of Hawaii; accompanied by Micah 

Kane, Chairman, Hawaiian Homes Commission .............................................. 18

Prepared statement .......................................................................................... 19

Burgess, H. William, Aloha for All ......................................................................... 45

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

Dinh, Viet D., Professor of Law, Georgetown University Law Center and 

Bancroft Associates, PLLC .................................................................................. 50

Prepared statement .......................................................................................... 54

Katsas, Gregory G., Principal Deputy Associate Attorney General, Department of Justice ..................................................................................................... 11

Prepared statement .......................................................................................... 13

APPENDIX

Abercrombie, Hon. Neil, U.S. Representative from Hawaii, prepared statement ...................................................................................................................... 99

Additional letters, e-mails, and statements submitted for the record ............. 134–314

Coburn, Hon. Tom, U.S. Senator from Oklahoma, prepared statement and 

written questions .................................................................................................. 97

Kane, Micah A., Chairman, Hawaiian Homes Commission, prepared statement ...................................................................................................................... 100

Katyal Neal, John Carroll Professor of Law, Georgetown University Law 

School, memorandum ........................................................................................... 110

Murkowski, Hon. Lisa, June 7, 2006 floor statement ........................................... 132

Response to written questions submitted by Hon. Tom Coburn to: 

Haunani Apoliona ............................................................................................. 101

Mark J. Bennett ............................................................................................... 104

H. William Burgess .......................................................................................... 106

Stevens, Hon. Ted, U.S. Senator from Alaska, prepared statement ................... 98

(1)

S. 310, THE NATIVE HAWAIIAN GOVERNMENT 

REORGANIZATION ACT OF 2007

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

The Committee met, pursuant to notice, at 9:30 a.m. in room 

485, Senate Russell Office Building, Hon. Byron L. Dorgan, Chairman of the Committee, presiding. 

STATEMENT OF HON. BYRON L. DORGAN,

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. I will call the hearing to order. This is a hearing 

of the United States Indian Affairs Committee. 

Today, the Committee will hear testimony from witnesses on S. 

310, the Native Hawaiian Government Reorganization Act. This 

legislation is intended to establish a process to reconstitute a Native Hawaiian government. My colleagues and good friends from 

Hawaii, Senators Inouye and Akaka, have introduced similar legislation since the 106th Congress. Each of these proposals has generated aggressive discussion here in the Senate and elsewhere and 

each time the Senators from Hawaii have reached out to the concerned parties to try and develop compromises. 

Considerable compromises have been made and the bill that is 

before this Committee today contains all of those compromises. As 

with any compromise, neither side is completely satisfied, but the 

ultimate goal of establishing a process to reorganize a Native Hawaiian government is still achieved in this legislation. 

I continue to support the efforts of my colleagues to reorganize 

a Native Hawaiian government. I think the process set forth in this 

bill is very reasonable and prudent. It allows for the Native Hawaiian people to once again have an opportunity at self-governance 

and self-determination. 

The bill also enables Federal, State, and Native Hawaiian governments to develop a working relationship in order to address 

many longstanding issues such as the transfer of lands to Native 

Hawaiians, jurisdiction, governmental authority and other matters. 

Native Hawaiians, just like Indian tribes, are the first Americans. They were here long before my ancestors showed up. They 

had their own governments and provided for the general welfare of 

their people. In fact, their governments worked so well that the 

founders of the United States modeled our Constitution after the 

governments of some of the first Americans. 

But similar to our treatment of Indian tribes, the Federal Government’s historical treatment of the Native Hawaiians is not a 

2

proud moment in this Country’s history. Before any Americans settled on the Hawaiian Islands, there existed a sovereign Native Hawaiian government. The United States recognized this sovereign 

native nation and negotiated four separate treaties with it. 

Once non-Natives began settling in Hawaii, the Native Hawaiian 

government allowed them representation in their government. But 

the non-Natives wanted control of the Hawaiian government. In 

1893, the United States minister utilized American soldiers to assist non-Native revolutionaries in overthrowing the Native Hawaiian government. 

Although President Grover Cleveland urged the Congress to restore the Native Hawaiian Queen to power, the Senate Foreign Relations Committee ratified the actions of the non-Native revolutionaries. The Senate justified its ratification by describing the Native 

Hawaiian government as a domestic dependent nation, the same 

description given by the United States Supreme Court to Indian 

tribes in 1831. 

Although the United States ratified the overthrow of the Native 

Hawaiian government, we have always recognized a special relationship with Native Hawaiians. I am sure that the Senators from 

Hawaii will describe this relationship in great detail, but suffice it 

to say that Congress has always recognized Native Hawaiians as 

the indigenous people of Hawaii with whom we have certain obligations. 

As evidence of this relationship, the Congress has enacted over 

150 statutes dealing with Native Hawaiians providing them with 

certain benefits. More, in 1993, Congress passed the Native Hawaiian Apology Resolution. 

I strongly prefer that our indigenous groups go through the Federal acknowledgment process at the Department of the Interior in 

order to establish government-to-government relationships with the 

United States. However, that administrative process is not available to Native Hawaiians. The regulations governing the process 

state the process is available only to American Indian groups indigenous to the 48 States and Alaska. Native Hawaiians are therefore 

excluded. 

The Ninth Circuit Court of Appeals has upheld the exclusion of 

Native Hawaiians from this process. 

One can argue that the solution is to amend the Federal administrative process to allow the Native Hawaiians to participate, but 

that is a little like putting a square peg into a round hole in this 

circumstance. The Federal administrative process was not developed to evaluate indigenous groups like the Native Hawaiians. The 

process was designed to evaluate Indian groups that did not previously have a political relationship with the United States. 

The Native Hawaiians clearly had a previous political relationship with the United States. The regulations also were not intended to cover indigenous groups who were the subject of congressional action or legislative termination. Numerous Indian tribes 

that were the subject of legislative termination had to come to Congress or the judiciary to be restored. 

In the case of the Native Hawaiians, it was congressional approval of the illegal acts of others that led to the demise of the Native Hawaiian government. Thus, the administrative process canVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\DOCS\35139.TXT JACK PsN: JACKF
3

not adequately evaluate the status of Native Hawaiians. I regret 

that, but that is the case. 

Finally, to the extent that people feel the Native Hawaiians 

should go through some sort of process in order to obtain a government-to-government relationship with the United States, they 

should take comfort in that S. 310 proposes to do exactly that, establish a process in which the Native Hawaiian people will work 

with the Federal and State governments to reconstitute Native Hawaiian government, a government that would continue to exist 

today had it not been for the illicit acts of the United States. 

S. 310 does not recognize a Native Hawaiian government. Rather, it sets forth a process to allow Native Hawaiians to reorganize. 

Once that entity is reconstituted it will need to be certified by the 

Federal Government. Every step of the way, the Federal and State 

governments will be involved in the process. 

I want to say to the Vice Chairman, Senator Thomas, and my 

two colleagues from Hawaii, we are having a cloture vote at 10:30 

this morning on my amendment, the Dorgan amendment, and the 

one hour prior to the cloture vote is an hour devoted to debate on 

that amendment. So I regrettably, and it was not planned this way, 

but I have to be over to defend my amendment during this hour. 

So I am going to ask if Senator Akaka would chair the hearing. I 

apologize for having to go to the floor of the Senate, but that nonetheless is the procedure this morning for me. 

I want to thank Vice Chairman Thomas for being with us as 

well. I want to call on Vice Chairman Thomas for any opening comment that he will have, and then I will ask, as I depart, for Senator 

Akaka to assume the role of the Chair. 

Let me make one final point, if I might. This is not an issue 

without some controversy. I recognize that. It has been around a 

while. It has been debated. There is some controversy. But I do 

want to pay special attention to my two colleagues, Senator Akaka 

and Senator Inouye. They have worked long and hard on this issue. 

They feel passionately about it. They have worked very hard to address a lot of issues with a lot of different interests. I deeply admire what they have done. As a result of that, I have cosponsored 

the legislation today. 

I recognize that there remain some areas of dispute and controversy, but I just wanted to make special note of the extraordinary work done by my two colleagues in order to bring this bill 

to the Senate Committee on Indian Affairs. 

Senator Thomas, thank you for being here. 

STATEMENT OF HON. CRAIG THOMAS,

U.S. SENATOR FROM WYOMING 

Senator THOMAS. Thank you very much, Mr. Chairman. I hope 

you do well on the floor. 

I, too, want to recognize our two colleagues for all they have 

done. Versions of this bill have come before the Indian Affairs Committee in four previous Congresses, beginning in the 106th Congress. I appreciate this is a matter of considerable importance to 

the Senators and many Native Hawaiians as well. However, I have 

been an opponent of the early versions of this bill, most recently 

in the 109th Congress. I voted against cloture of S. 147 and was 

4

prepared to vote against the bill on its merits if it had come to 

that. 

Clearly, 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 and constitutional grounds. Whether a particular group should be recognized as an Indian tribe by the Federal Government involves difficult questions of historic, political and general geographics facts, 

and it requires a detailed scholarly inquiry. I do not think that it 

is appropriate to circumvent that inquiry and have Congress simply deem a group to be a tribe. In fact, I wonder if it might be preferable for this decision to be made by the Department of the Interior, following the regulatory process that is used in recognizing Indian tribes. 

Nevertheless, I am looking forward to the witnesses today. I 

know how important this issue is, and I appreciate your being here 

and look forward to your remarks. 

Thank you, sir. 

STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

Senator AKAKA. [Presiding.] I want to thank you very much, my 

good friend and colleague, Senator Thomas, for his statement. 

And now I would like to call on Senator Inouye. I am so accustomed to the seniority, but Senator Inouye just waved me on. So 

let me proceed with my statement. 

I want to thank Chairman Dorgan and Vice Chairman Thomas 

very, very much. I appreciate their having this hearing today. I 

also want to welcome all of our witnesses who are here to testify. 

In Hawaii, we are blessed to have a diverse population representing many cultures. However, we cannot neglect and must not 

forget the indigenous culture and people of Hawaii, the Native Hawaiians. For the last seven years, I, along with Hawaii’s congressional delegation, have worked to enact the Native Hawaiian Government Reorganization Act. My bill authorizes a process for the 

reorganization of a Native Hawaiian governing entity for the purposes of a federally recognized government-to-government relationship. 

Why do we need to organize the entity? It is because the Native 

Hawaiian government was overthrown with the assistance of U.S. 

aid in 1893. As a result, Native Hawaiians were disenfranchised 

from their culture, land and way of life at the hands of foreigners 

committed exclusively to propagating Western values and conventions. The impacts of the overthrow continue as Native Hawaiians 

are at the lowest levels of achievement by all social and economic 

measures. 

Following the overthrow, a republic was formed. Any reformation 

of a native governing entity was discouraged. Despite this fact, Native Hawaiians have established distinct communities and retained 

their language, culture and traditions. They have done so in a way 

that also allows other culture to flourish in Hawaii. 

Since that time, Congress has explicitly recognized the existence 

of a special or trust relationship between the Native Hawaiian people and the United States. In 1921, the effort to rehabilitate them 

5

by returning Native Hawaiians to the land led to the enactment of 

the Hawaiian Homes Commission Act. The Act sets aside approximately 203,500 acres of public lands for Native Hawaiian homesteading. As a condition of statehood in 1959, Congress required 

the State of Hawaii to adopt the HHCA and two, that public lands 

transferred to the State be held in trust for five purposes, including 

‘‘the betterment of the conditions of Native Hawaiians.’’

In 1993, Public Law 103–150, commonly known as the Apology 

Resolution, was enacted. The Resolution acknowledges the history 

that happened, including ‘‘Congress apologizes to Native Hawaiians 

on behalf of the people of the United States for the overthrow of 

the Kingdom of Hawaii on January 17, 1893, with participation of 

agents and citizens of the United States, and the deprivation of 

rights of Native Hawaiians to self-determination.’’

Congress also committed itself to acknowledging the ramifications of the overthrow and supporting reconciliation efforts between 

Native Hawaiians and the United States. My bill is the next step 

in this reconciliation process. 

While Congress has traditionally treated Native Hawaiians in a 

manner parallel to American Indians and Alaska Natives, the Federal policy of self-governance and self-determination has not been 

formally extended to Native Hawaiians. Many checks and balances 

exist in this process, which complies with Federal law and maintains the flexibility for Native Hawaiians to determine the outcome 

of this process. 

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

State legislature, the numerous Native and non-Native organizations. In Washington, D.C., S. 310 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. 

I look forward to building upon the established record as we embark on the ninth hearing this Committee has held on the issue of 

Native Hawaiian governance. 

Senator Inouye? 

STATEMENT OF HON. DANIEL K. INOUYE,

U.S. SENATOR FROM HAWAII 

Senator INOUYE. I thank you, Mr. Chairman. 

I thank Chairman Dorgan and Vice Chairman Thomas for scheduling this very important hearing. Senator Akaka and I have 

worked tirelessly for the past seven years. We have had eight days 

of hearings during the seven year period, covering 40 hours. This 

bill has been marked up five times, so it has a long history, and 

we have worked on it for a long time. 

But before I proceed, Mr. Chairman, I note that Congresswoman 

Mazie Hirono is here with us, and I thank you for your demonstration of support. This encourages us. 

This bill is important to all the citizens of the State. For those 

of who were born and raised in Hawaii, we have always understood 

that the indigenous people of Hawaii, Native Hawaiian people, 

have a status that is unique. This status is enshrined in our State 

Constitution. It is reflected in the laws of our State. It is found in 

6

over 100 Federal laws, including the Hawaiian Admissions Act, as 

noted by Senator Akaka. 

It is a status that reflects our deep gratitude to the Native people 

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

Mr. Chairman, in my nearly 30 years of service on this Committee, I have been fortunate to learn a bit about the history of this 

Country and its relations with 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 dealing with the native people. We began with treaties with native peoples, solemnly signed by the President of the United States. And 

then, notwithstanding these treaties, we turned to war and in some 

cases massacred the very tribes that we had treaties with. 

Then we enacted laws recognizing native governments. Then we 

passed laws terminating our relationships with those governments. 

Then we had laws repudiating our termination policy and restored 

our relations with native governments. 

Finally, for the past 37 years, we adopted a policy of recognizing 

and supporting the rights of this Nation’s first Americans to selfdetermination 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 140 

years, as shown through the treaties with the United States and 

the scores of Federal statutes. But like the native people whose federally recognized status was terminated, the government of Hawaii 

that represented the Native Hawaiian people was overthrown with 

the assistance of U.S. troops on January 17, 1893. 

Native Hawaiians seek full restoration of the government-to-government relationship they had with the United States. As one who 

has served the citizens of Hawaii for over 50 years, as both a member of Congress and in the territorial legislature, I believe that 

there is a broad-based support in our State for what the native people of Hawaii are seeking. The courts have concluded that termination can only be reversed by an act of Congress. In my view, I 

believe in the view of those I have place to represent. The time for 

reconciliation is long overdue, and the time for restoration is now. 

I thank you, Mr. Chairman. 

[The prepared statement of Senator Inouye follows:]

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

I thank Chairman Dorgan and Vice Chairman Thomas for scheduling this important hearing today on a bill that Senator Akaka and I have worked tirelessly on 

for the past 7 years. 

This bill is important to all of the citizens of the State of Hawaii. For those of 

us who were born and raised in Hawaii, as I was, we have always understood that 

the indigenous people of Hawaii—the Native Hawaiian people—have a status that 

is unique in our State. 

This status is enshrined in our State Constitution, and it is reflected in the laws 

of our State. It is found in well over a hundred Federal statutes—including the Hawaii Admissions Act. It is a status that reflects our deep gratitude to the native people who first welcomed us to their shores and who gave us the opportunity to live 

in their traditional homelands. 

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

fortunate to learn a bit about the history of this country and its relations with the 

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

7

As a nation, we have changed course many times in the policies governing our 

dealings with the Native people. We began with treaties with the 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 37 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 140 years—as shown through treaties with the United States 

and in scores of Federal statutes. But like the Native people whose Federally-recognized status was terminated, the government of Hawaii that represented the Native 

Hawaiian people was overthrown with the assistance of U.S. troops on January 17, 

1893. 

Native Hawaiians seek the full restoration of the government-to-government relationship they had with the United States. As one who has served the citizens of the 

State of Hawaii for over 50 years, as both a member of Congress and the Territorial 

Legislature, I believe that there is broad-based support in our State for what the 

Native people of Hawaii are seeking. At this time, I would like to submit the following letter written by Linda Lingle, Governor of the State of Hawaii to Senator 

Lamar Alexander, which states that 84 percent of Hawaii adults are in favor of affording federal recognition to Native Hawaiians. 

The courts have concluded that termination can only be reversed by an act of Congress. In my view, and I believe in the view of those I have pledged to represent, 

the time for reconciliation is long overdue—and the time for restoration is now. The 

Time to enact S. 310 is now. 

As you know, Mr. Chairman, in the 109th session of the Congress, we debated 

an earlier version of the bill that is before us today on the Senate floor. At that 

time, statements were made part of the Congressional Record that reflect a misunderstanding of the discussions that took place between the United States and the 

political leaders of what was to become the new State of Hawaii. Because I participated in those discussions, I thought that it might be helpful to the Committee and 

to our colleagues in the Senate to know what was contemplated by the parties to 

the discussion at the time of statehood. 

The historical record is clear. In an effort to return lands to the indigenous, native 

people of Hawaii, the Congress acted in 1920 to set aside land on each of the five 

principal islands, in what was then the Territory of Hawaii. This action was taken 

in response to well-documented evidence that Native Hawaiians had been displaced 

from their traditional homelands, moved into tenement dwellings, and suffered in 

large numbers from diseases that were rampant in the overcrowded tenement areas. 

This Federal law, the Hawaiian Homes Commission Act, set aside approximately 

203,500 acres of land from the inventory of lands in Hawaii that had been ceded 

to the United States to be held in trust for Native Hawaiians. While the law did 

not authorize appropriations for the development of infrastructure that would enable the habitability of the lands, the Act contained an authorization for the leasing 

of the lands so that revenues derived from leases could be dedicated to the development of infrastructure. As we approached the time of statehood, I recall that one 

of the principal concerns was that statehood should not effect another displacement 

of Native Hawaiians from the lands that had been set aside under the Hawaiian 

Homes Commission Act. 

Until that time, the administration of the Act had been challenging. Here were 

lands that were located thousands of miles from the nation’s capital, but were nonetheless lands that the United States held in trust. Transferring the lands to what 

would become the new State of Hawaii held the potential to facilitate the implementation of the Act and to increase the numbers of Native Hawaiians who could be 

relocated onto the homelands. 

As a condition of its admission into the Union, Hawaii accepted the terms the 

United States put forth—namely, that the homelands would be transferred to the 

new State, but that those lands would be held in trust for Native Hawaiians by the 

State. In addition, the United States sought, and those representing the new State 

agreed, to incorporate the provisions of the Hawaiian Homes Commission Act into 

the new State’s Constitution. 

However, the United States did not cut all of its ties to the Native Hawaiian people or to the homelands. The U.S. retained the authority to bring an enforcement 

action should there be any breach of the homelands trust by the State of Hawaii, 

and further insisted that any material amendments to the Act adopted by the State 

legislature that would affect either the eligibility of those entitled to live on the 

8

homelands or the corpus of the trust—would have to be approved and ratified by 

the U.S. Congress. 

There was also the matter of the other lands in Hawaii that had been ceded to 

the United States. While there was general agreement that all of the lands that 

were not to be retained by the United States for military or other Federal purposes 

would be transferred to the new State, it was also understood that there would be 

revenues derived from the use of those ceded lands. 

Here again, there is clear evidence that the framers of the Statehood Act did not 

intend that Native Hawaiians would be subsumed into the larger body politic of the 

new State, but rather, that Native Hawaiians would retain their historically-distinct 

status. 

Accordingly, we are able to look to section 5(f) of Hawaii’s Admissions Act, which 

provides that the lands transferred to the new State are to be held in a public trust 

by the State, and that the revenues derived from the ceded lands are to be used 

for five purposes, one of which is the betterment of the conditions of Native Hawaiians. 

The delegation of authority by the United States to the State of Hawaii to administer lands held in trust for Native Hawaiians and to use the revenues derived from 

lands ceded by the United States to the State of Hawaii for the betterment of the 

conditions of Native Hawaiians is unmistakably clear and explicit. It is contained 

in Federal law—the Hawaii Admission Act—and is reflected in provisions of the 

Constitution of the State of Hawaii as well as in Hawaii State implementing statutes. 

Finally, I believe it may be useful to address those provisions of S. 310 that grew 

out of negotiations that took place subsequent to this Committee’s report of S. 147, 

the Native Hawaiian Government Reorganization Act, to the full Senate in the 

109th session of the Congress. Those negotiations involved representatives of the 

White House, the Office of Management and Budget, the Department of Justice, the 

State of Hawaii, and the members of Hawaii’s congressional delegation, and the provisions of the bill resulting from the negotiations were incorporated into S. 3064, 

which was essentially an amendment in the nature of a substitute to S. 147 that 

was introduced by Senator Akaka in 2006. 

On July 13, 2005, Assistant Attorney General William E. Moschella, signed a letter from the Department of Justice to Senator John McCain, who was at the time 

Chairman of the Senate Indian Affairs Committee. Mr. Moschella’s letter sets forth 

four principal points of concern about the Native Hawaiian Government Reorganization Act of 2005—each of which was subsequently addressed in the negotiations I 

have referenced. 

Accordingly, there are provisions of S. 310 that address the Department’s concerns 

about potential claims against the United States, the consultation process as it relates to the operation of U.S. military facilities in Hawaii or military readiness, the 

allocation and exercise of criminal jurisdiction among the three governments (the 

United States, the State of Hawaii, and the Native Hawaiian government), and the 

application of the Indian Gaming Regulatory Act. The Department’s additional concern about the composition of the Commission is also addressed in the provisions 

of S. 310. As Mr. Moschella’s letter indicates, the U.S. Supreme Court did not address Congress’ constitutional authority to enact legislation for the benefit of Native 

Hawaiians in the Court’s ruling in Rice v. Cayetano.

The 160 Federal statutes that the Congress has enacted since 1910 which are designed to address the conditions of Native Hawaiians were not at issue in the Rice

case. 

As members of Congress who take an oath of office to uphold the U.S. Constitution, every legislative action that we take is informed by our understanding of the 

authority that is delegated to the legislative branch of government in the Constitution. History informs us that because the U.S. Supreme Court does not have occasion to rule on the constitutionality of every Federal statute, most of the time we 

must act on the advice of legal counsel and our best judgment. The experts in this 

field of law assure us—and the Supreme Court has so held—that the power that 

the Constitution delegates to the Congress to conduct relations with the indigenous, 

native people of America is plenary. 

Again, as one who has served in the U.S. Congress for the past 48 years, I believe 

that it is wise and prudent to premise our actions on this constitutional foundation 

and historical experience rather than constrain our actions on speculation or conjecture.

Senator AKAKA. Thank you very much, Senator Inouye. 

Senator Murkowski? 

9

* The information referred to is printed in the Appendix. 

STATEMENT OF HON. LISA MURKOWSKI,

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

I appreciated hearing the remarks of both of our distinguished 

leaders from Hawaii. 

I want to welcome those from the State of Hawaii that have traveled to be with us today. I know that we often have visitors from 

the Office of Hawaiian Affairs travel to the State of Alaska, working with and visiting with our friends over at the Alaska Federation of Natives. Sometimes you have come when it is cold. Sometimes we go and visit you when it is warm, and I am sure who gets 

the better part of the deal, but we do enjoy the relationship that 

we have with one another. 

In June of 2006, I went to the Senate floor to speak in support 

of Senator Akaka’s Native Hawaiian recognition legislation. Mr. 

Chairman, I would ask that my floor statement be included in the 

record of today’s hearing. 

Senator AKAKA. Without objection. * 

Senator MURKOWSKI. The question at that time was whether or 

not the Senate was going to invoke cloture to end the filibuster 

that prevented the consideration of the Akaka bill on its merits. Ultimately, there were 56 Senators, both Republicans and Democrats, 

who voted to debate the bill, four short of the number that we 

needed to break that filibuster. Many of the views expressed in the 

testimony to be offered by the Justice Department witnesses, some 

of those expressed in Mr. Burgess’s prepared testimony, were explore in the debate that preceded that vote. But the 56 bipartisan 

votes cast in favor of the Akaka bill suggest that it stands very 

much in the mainstream of political and constitutional thought. 

Attorney General Bennett and Mr. Dinh were pivotal in helping 

many of our colleagues evaluate the arguments that were advanced 

by those who opposed Senator Akaka’s legislation. I welcome them 

to the Committee this morning and look forward to their testimony 

as well. 

I would also note, and you have mentioned, Senator Akaka, that 

this legislation enjoys the support of your Governor, Governor 

Lingle, and also the support of the major newspapers in the State 

of Hawaii, the National Congress of American Indians, and the 

Alaska Federation of Natives. 

While much is made of the U.S. Civil Rights Commission’s views 

on the Akaka bill, it bears noting that the only American Indian 

on the Commission dissented from the majority’s conclusion. 

I want to take just a moment here this morning to kind of break 

practice in order to comment on the prepared statement submitted 

by the Department of Justice. I have to say that the language and 

the tone in the prepared statement do not leave a favorable impression on this Senator. I am referring to language like favored treatment, class of favored persons, secession, balkanization, racially 

isolated government, preferential treatment, differential treatment, 

separatist government, and corrosive effect. 

The statement uses I believe harsh and divisive words to draw 

many conclusions about the distinctions between Native Hawaiians 

10

on the one hand, and American Indians and Alaska Natives on the 

other. Yet nowhere in the statement do I find any historical or anthropological references to support these conclusions. The Apology 

Resolution is never once discussed in the statement. 

I am left to wonder whether the distinctions between Native Hawaiians and American Indians are truly distinctions without a difference. 

I feel compelled to call the Committee’s attention to the suggestion on page four of the prepared statement that this legislation 

grants, ‘‘a broad group of citizens defined by race and ancestry the 

right to declare their independence and secede from the United 

States.’’ I don’t see anything on the face of S. 310 that gives anyone 

the right to declare independence and secede from the United 

States. 

I question the credibility of the statement that the legislation 

grants, ‘‘sweeping powers to the proposed Native Hawaiian organizations described in the bill.’’ What it does do is give the Native 

Hawaiian governing entity a seat at the negotiating table. The 

State of Hawaii and the Federal Government hold the other seats. 

As I said on the floor last year, this Senator is not about to presume the outcome of these negotiations. 

Now, of all the troublesome language in the prepared statement, 

I find the passages that suggest that ‘‘Indian tribes enjoy favored 

treatment and that the Akaka bill would create a class of favored 

persons afforded different rights and privileges from those afforded 

to his or her neighbors.’’ I find this very troubling. 

The suggestion is that if Native Hawaiians are regarded as 

American Indians, they become favored persons. I believe that 

these are words that provoke resentment. They are inflammatory 

and I fully believe that they are uncalled for. Language like this 

is used frequently by those who would have the United States end 

its financial support for Indian health and Indian housing programs. I don’t use this language and I don’t think our President 

has ever used it either to describe our Nation’s relationship with 

native people. If you doubt this, I would suggest that you look at 

the President’s Native American Heritage Month proclamations on 

the White House web site. 

Mr. Chairman, I spend a lot of time with native people who live 

in rural Alaska who subsist off the land and the living resources 

as much as their ancestors did. I can tell you that nobody I know 

feels privileged to live in third world conditions without indoor 

plumbing or substandard housing as the price they pay for remaining in their traditional communities. 

Federal Indian programs compensate our native peoples for the 

loss of their land, and I think the record will bear out that Native 

Hawaiian people are similarly situated to Alaska Natives and 

American Indians in this regard. Reasonable people can civilly debate the question of whether recognition of Native Hawaiians falls 

within the ambit of Congress’s broad powers under the Indian 

Commerce Clause. Citing two law review articles, one pro and one 

con, the majority opinion in Rice v. Cayetano noted, ‘‘it is a matter 

of some dispute whether Congress may treat the Native Hawaiians 

as it does the Indian tribes.’’ The majority then stated emphatically, ‘‘We can stay far off that difficult terrain, however.’’

11

But however difficult the terrain, I would suggest that the time 

has come for Congress to address the question. Congress has recognized the Native Hawaiians perhaps 100 times in designating eligibility for the same types of programs and services afforded to 

American Indians because of their status as Indians. I am speaking 

of the health programs and the housing programs. I fear that if 

Congress remains silent on whether Native Hawaiians are to be 

treated as American Indians, the legal challenges to these programs will continue and the intent of Congress, as reflected in 

those laws, may be frustrated. 

I thank the Chairman for the time this morning and the opportunity to make these comments, and look forward to the testimony 

from the witnesses this morning. 

Senator AKAKA. Thank you very much, Senator Murkowski. 

I want to welcome the first panel this morning. I would like to 

introduce them. Again, I want to reiterate what the Chairman 

mentioned, that we may be having at 10:30 a.m. a vote on the floor 

of the House. As a result, we will have the first panel testify first. 

Mr. Gregory Katsas is Principal Deputy Associate Attorney General, United States Department of Justice. The Department of Justice was invited to testify at the hearing because the department 

had issued a letter in 2005 opposing several aspects of reorganizing 

the Native Hawaiian government. Mr. Katsas will testify on the department’s current views on S. 310. 

Mr. Mark Bennett is Attorney General of the State of Hawaii, 

who is accompanied by Micah Kane, Chairman of the Hawaiian 

Homes Commission. Mr. Bennett will be testifying as a representative for the Honorable Linda Lingle, Governor of the State of Hawaii. He will testify about the State of Hawaii’s support for S. 310, 

Congress’s authority to develop a political relationship with a Native Hawaiian government and the constitutionality of S. 310. 

Ms. Haunani Apoliona is Chairperson of the Board of Trustees 

of the Office of Hawaiian Affairs, who is accompanied by William 

Meheula, Legal Counsel. The Office of Hawaiian Affairs is an office 

of the State of Hawaii that was established in 1978 by the Hawaii 

State Constitution. The mission of the office is to protect and assist 

Native Hawaiian people. Chairperson Apoliona will testify about 

the history of the Native Hawaiian government, the history of the 

Office of Hawaiian Affairs, and the need to further the self- determination and self-governance of the Native Hawaiian people. 

I would like the witnesses to know that your full statements will 

be made a part of the record. 

Senator THOMAS. Mr. Chairman, Dr. Coburn may not be here. He 

would like to have his statement and questions be made part of the 

record. 

Senator AKAKA. Thank you very much. That will be included in 

the record. 

Mr. Katsas, you may now begin with your opening statement. 

STATEMENT OF GREGORY G. KATSAS, PRINCIPAL DEPUTY 

ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 

Mr. KATSAS. Thank you, Senator Akaka and Senator Thomas, for 

inviting me here to testify on the proposed S. 310. I know that this 

bill has a long history and is very personal to many. The DepartVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 S:\DOCS\35139.TXT JACK PsN: JACKF
12

ment appreciates that many of the concerns identified in previous 

versions of the bill were resolved after lengthy meetings between 

your staff and ours. However, other concerns still remain. 

The bill would create a new government based on suspect lines 

of race and ethnicity. The Administration strongly opposes this 

well-intentioned, but misguided attempt to divide sovereign power 

along such lines. The President has said that we must honor the 

great American tradition of the melting pot, which has made us 

one Nation out of many peoples. That sentiment is further reflected 

in our national motto, e pluribus unum, out of many, one. 

This bill would undercut that principle. The bill broadly defines 

a separate class of Native Hawaiians to include all living descendants of the original Polynesian inhabitants of what is now modernday Hawaii. Members of this class need not have any geographic, 

political or cultural connection to Hawaii, much less to some discrete Native Hawaiian community. In fact, the class encompasses 

about 400,000 individuals, including 160,000 who do not live in Hawaii, but are scattered throughout each of the 49 other States in 

the Union. 

Members of the class are now diverse—racially, ethnically, and 

culturally. They are said to be the subjects of a government that 

has not existed since the late-1800s. They are afforded the privilege 

of forming a separate government, not because of actual membership in a discrete native community, but because they have at least 

trace elements of Polynesian blood. 

The bill would grant broad governmental powers to this raciallydefined group. In essence, Native Hawaiians would be authorized 

to conduct a constitutional convention. Through referenda, they 

would decide who may become a citizen in the new government, 

what powers the government may exercise, and what civil rights it 

must protect. They would also elect officers in the new government. 

Once constituted, the new government would be authorized to 

negotiate with the United States over such matters as the transfer 

of land and natural resources, the exercise of civil and criminal jurisdiction, and the redress of claims against the United States. According to some supporters of the bill, the new government would 

even be able, on behalf of its constituents, to seek free association 

or total independence from the United States. 

This drive toward separatism is troubling. It is wrong on its own 

terms, and it seeks to change settled understandings underlying 

the admission of Hawaii into the Union. In 1950, citizens of Hawaii 

voted overwhelmingly for statehood. Native Hawaiians supported 

statehood by a margin of two-to-one. Over the next decade, they 

and others advocated for statehood based on the premise that Hawaii had become, in the words of one member of Congress at the 

time, ‘‘a melting pot from which has been produced a common nationality, a common patriotism, a common faith in freedom and in 

the institutions of America.’’

After a decade-long campaign, Congress accepted that view, admitted Hawaii into the Union and, in contrast to what it had done 

in admitting other States, set aside no land for reservations. 

The bill also raises troubling constitutional questions. The Supreme Court has made clear that classifications based on race and 

ethnicity receive the highest level of judicial scrutiny. To diminish 

13

such scrutiny, supporters of the bill contend that Congress may 

permissibly recognize Native Hawaiians as an Indian tribe. Supreme Court precedent makes clear that the power to recognize Indian tribes, although broad, is not unlimited, and that courts will 

strike down any inappropriate extension of that power. 

In Rice v. Cayetano, the Supreme Court identified the specific 

question of whether Congress may treat Native Hawaiians as an 

Indian tribe as one of considerable moment and difficulty. Two concurring Justices went farther and concluded that a State cannot 

permissibly treat as an Indian tribe the class at issue here, of Native Hawaiians broadly defined to include all descendants of Hawaii’s original settlers. 

The question whether Congress may define Native Hawaiians as 

an Indian tribe entitled to their own separate government raises 

serious constitutional concerns. But whatever the constitutionality 

of S. 310, the Administration as a policy matter strongly opposes 

any provision that would divide American sovereignty along lines 

of race and ethnicity. 

Thank you for your attention. I would be pleased to address any 

questions. 

[The prepared statement of Mr. Katsas follows:]

PREPARED STATEMENT OF GREGORY G. KATSAS, PRINCIPAL DEPUTY ASSOCIATE

ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Thank you, Mr. Chairman and Mr. Vice Chairman, for inviting me here today to 

comment on S. 310, the proposed Native Hawaiian Government Reorganization Act 

of 2007. I would like to begin by acknowledging that many native Hawaiians, like 

many Americans of various other backgrounds, place great importance on maintaining their ancestral culture. The Administration strongly supports that laudable goal. 

However, this bill raises the question whether Congress can and should pursue that 

goal by providing for a separate government to be organized by, and presumably run 

for, only individuals of a specified race and ancestry. The Administration strongly 

opposes that proposal because we think it wrong to balkanize the governing institutions of this country along racial and ancestral lines, and because doing so would 

give rise to constitutional questions recently described by the Supreme Court as 

‘‘difficult’’ and ‘‘considerable.’’

I. Policy Concerns 

In July 2005, the Department of Justice conveyed to this Committee several concerns with S. 147, a prior version of what is now S. 310. We recognize that S. 310, 

as revised, addresses many of our concerns. Specifically, we noted that the prior bill 

might have created sweeping new trust or mismanagement claims against the 

United States, interfered with important military operations in Hawaii, caused confusion from overlapping and possibly conflicting jurisdiction, and effectively overridden a state-law prohibition on gaming. The current bill addresses each of these 

concerns, and we appreciate the Committee’s efforts in this regard. Nonetheless, S. 

310 continues to present the broader policy and constitutional concerns identified 

in our letters of June 13, 2005, and June 7, 2006. I will address the constitutional 

concerns below, and the policy concerns here. 

After its hearing on the prior S. 147, the United States Commission on Civil 

Rights concluded that the bill, if enacted, ‘‘would discriminate on the basis of race 

or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.’’ The Native Hawaiian Government Reorganization Act of 2005, A Briefing Before the United States Commission on Civil 

Rights, Briefing Report 15. The government-sponsored division of Americans into 

such ‘‘discrete subgroups’’ is contrary to the goals of this Administration and, indeed, contrary to the very principle reflected in our national motto E Pluribus 

Unum. As President Bush has stated, we must ‘‘honor the great American tradition 

of the melting pot, which has made us one nation out of many peoples.’’ The White 

House, President George W. Bush, President Bush Addresses the Nation on Immigration Reform, May 15, 2006, http://www.whitehouse.gov/news/releases/2006/05/

20060515-8.html. By dividing government power along racial and ancestral lines, S. 

14

310 would represent a significant step backwards in American history and would 

create far greater problems than those it might purport to solve. For these reasons, 

the Administration strongly opposes passage of S. 310. 

Let me elaborate upon some of our policy concerns. First, in attempting to treat 

native Hawaiians as if they constituted an Indian tribe, the bill defines ‘‘Native Hawaiian,’’ along explicitly racial and ancestral lines, to encompass a vast group of 

some 400,000 individuals scattered throughout the United States. Moreover, the bill 

does so regardless of whether such individuals have any connection at all to Hawaii, 

to other Hawaiians, to native Hawaiian culture, or to any territory (Hawaiian or 

otherwise) remotely resembling an Indian reservation. Such an expansive definition 

is unlike any other previously used to describe a federally-recognized Indian tribe. 

In other instances, Congress has either allowed tribes to define their own membership or, alternatively, has itself specified a limited initial definition, thus ensuring 

that members maintain a strong connection to the tribal entity. This bill requires 

virtually no such connection between putative tribal members and any present or 

past tribal entity. Moreover, in determining who may participate in establishing the 

new government proposed by S. 310, the Federal Government would itself be discriminating based on race and ancestry, rather than based on any discernible nexus 

of individuals to a tribe-like entity. Such discrimination, in determining who may 

participate in the public function of creating a new government, should be highly 

disfavored. 

Second, S. 310 would grant sweeping powers to the proposed Native Hawaiian 

governing entity, and to the proposed Native Hawaiian Council charged with creating that entity. Section 7(c)(2)(B)(iii) of the bill provides that the Council may conduct a referendum regarding (1) ‘‘the proposed criteria for citizenship of the Native 

Hawaiian governing entity,’’ (2) ‘‘the proposed powers and authorities to be exercised 

by the native Hawaiian governing entity, as well as the proposed privileges and immunities of the Native American governing entity,’’ (3) the ‘‘proposed civil rights and 

protection of the rights of the citizens of the Native Hawaiian governing entity and 

all persons affected by the exercise of governmental powers and authorities of the 

Native Hawaiian governing entity,’’ and (4) ‘‘other issues determined appropriate by 

the Council.’’ In contrast, Indian tribes, by terms of the Indian Civil Rights Act, 

must generally respect the civil rights of their members as specified by Congress. 

See 25 U.S.C. §§ 1301–03. Even worse, the state Office of Hawaiian Affairs contends 

that this scheme would give native Hawaiians, as subjects of the new governing entity, ‘‘their right to self-determination by selecting another form of government including free association or total independence.’’ See State of Hawaii’s Office of Hawaiian Affairs, Questions and Answers, http://www.nativehawaiians.com/questions/SlideQuestions.html. For good reason, no other legislation has ever granted 

any state or Indian tribe—much less any broad group of citizens defined by race and 

ancestry—the right to declare their independence and secede from the United 

States. Indeed, the Nation endured a Civil War to prevent such secession. 

The breadth of S. 310 is particularly problematic given the distinctive history of 

Hawaii itself. The Ninth Circuit has explained that ‘‘Congress has evidenced an intent to treat Hawaiian natives differently from other indigenous groups,’’ because 

‘‘the history of the indigenous Hawaiians, who were once subject to a government 

that was treated as a co-equal sovereign alongside the United States until the governance over internal affairs was entirely assumed by the United States, is fundamentally different from that of indigenous groups and federally-recognized Indian 

Tribes in the continental United States.’’ Kahawaiolaa v. Norton, 386 F.3d 1271, 

1281–82 (9th Cir. 2004). 

Moreover, S. 310 effectively seeks to undo the political bargain through which Hawaii secured its admission into the Union in 1959. On November 7, 1950, all citizens of the Hawaiian Territory—including native Hawaiians—voted to seek admission to the United States. See, e.g., Pub. L. No. 86–3, 73 Stat. 4. By a decisive 2–

1 margin, native Hawaiians themselves voted for statehood, thus voluntarily and 

democratically relinquishing any residual sovereignty to the United States. See

Slade Gorton & Hank Brown, Wall Street J., A–16 (Aug. 16, 2005); S. 147/H.R. 309: 

Process for Federal Recognition of a Native Hawaiian Governmental Entity, CRS 

Report for Congress, at CRS–25 n.111 (Sept. 27, 2005). And when Hawaii became 

a state in 1959, there was a broad nationwide consensus that native Hawaiians 

would not be treated as a separate racial group or transformed into an Indian tribe. 

Indeed, far from creating any guardian-ward relationship between the Federal Government and native Hawaiians, the 1959 Admission Act eliminated federal ownership over lands subject to the Hawaii Homes Commission Act of 1920, and it ceded 

other lands to Hawaii for the benefit of all of its citizens. See Pub. L. No. 86–3, § 5, 

73 Stat. 4. Thus, the push to establish a native Hawaiian tribe as a distinct political 

15

entity is of recent historical vintage. There was no such effort even at the time of 

annexation in 1898, much less at the time of statehood in 1959. 

To the contrary, during the extensive statehood debates of the 1950s, advocates 

repeatedly emphasized that the Hawaiian Territory was a ‘‘melting pot’’ without significant racial divisiveness. For example, Senator Herbert Lehman (D–NY) noted 

that ‘‘Hawaii is America in a microcosm—a melting pot of many racial and national 

origins, from which has been produced a common nationality, a common patriotism, 

a common faith in freedom and in the institutions of America.’’ Congressional 

Record at 4325 (Apr. 1, 1954). Senator Wallace Bennett (R–UT) recognized that, 

‘‘[w]hile it was originally inhabited by Polynesians, and its present population contains substantial numbers of citizens of oriental ancestry, the economy of the islands 

began 100 years ago to develop in the American pattern, and the government of the 

islands took on an actual American form 50 years ago. Therefore, today Hawaii is 

literally an American outpost in the Pacific, completely reflecting the American 

scene, with its religious variations, its cultural, business, and agricultural customs, 

and its politics.’’ Congressional Record at 2983 (Mar. 10, 1954). And Senator Clair 

Engle (D–CA) stated that, ‘‘[t]here is no mistaking the American culture and philosophy that dominates the lives of Hawaii’s polyglot mixture.’’ Testimony, Subcommittee on Territories and Insular Affairs of the Senate Committee on the Interior and Insular Affairs (Feb. 25, 1959). 

These statements confirm that Hawaiians sought and obtained statehood as a single people determined to become citizens, not of any racially isolated government 

for ‘‘Native Hawaiians,’’ but of the United States. S. 310 inappropriately seeks to 

undo the specific political arrangements secured with respect to statehood—to say 

nothing of the broader national ideal that, by virtue of the American melting pot, 

the United States should become one Nation from many, not many nations from 

one. Third, for many of the reasons already discussed, S. 310 would encourage other 

indigenous groups to seek favorable treatment by attempting to reconstitute themselves as Indian tribes—and thereby to segregate themselves, at least in part, from 

the United States and its government. Under the logic of this bill, favored treatment 

as an ‘‘Indian tribe’’ would become potentially available to groups that, although defined by race and ancient ancestry, might today consist of racially and culturally 

diverse persons with no single distinct community, no distinct territory under control of that group, and no distinct leadership or government—a combination of features that sets native Hawaiians apart from traditional Indian tribes and native 

Alaskan groups. This new template could potentially be used by several other indigenous groups living in the United States, such as the native Tejano community in 

Texas, the native Californio community of California, or the Acadians of Louisiana—

all of which could argue that they are entitled to preferential treatment and even 

a separatist government, no matter how integrated they have become into the 

American mainstream. See Amicus curiae brief, Campaign for a Color-Blind America, Americans Against Discrimination and Preferences, and the United States Justice Foundation, filed in Rice v. Cayetano, No. 98–818, at 19–25 (available at 1999 

WL 374577). Indeed, one such Mexican-American organization, the Movimiento 

Estudiantil Chicano de Aztlan (MEChA), even seeks to reclaim Aztlan land from 

nine western states. See Statement of Bruce Fein on the Constitutionality of Creating a Race-Based Native Hawaiian Government (H.R. 309) Before the House Judiciary Subcommittee on the Constitution (July 19, 2005). Whatever might be said 

about past injustices, generations of Americans have fought and died to achieve a 

single, indivisible country that respects the freedom, equality, and heritage of all of 

its citizens. Congress should avoid a path that will lead to its balkanization. 

Finally, S. 310 would create a race-based government offensive to our Nation’s 

commitment to equal justice and the elimination of racial distinctions in the law. 

Section 3(10) of the bill defines the term ‘‘Native Hawaiian’’ as ‘‘the indigenous, native people of Hawaii’’ who are the ‘‘direct lineal descendant[s] of the aboriginal, indigenous, native people who... resided in the islands that now comprise the 

State of Hawaii on or before January 1, 1893.’’ That definition incorporates elements 

of two highly odious classifications—race (by reference to the ‘‘indigenous’’ Polynesian inhabitants of what is now Hawaii) and ancestry (by reference to the ‘‘lineal 

descendant[s]’’ of such individuals)—without any redeeming connection to any 

present or past political entity that even remotely resembles an Indian tribe. In 

short, the bill classifies people not based on a political relationship like citizenship 

in a foreign country, or membership in a quasi-sovereign Indian tribe, but rather 

based purely on race and ancestry. 

The corrosive effect of S. 310 is particularly acute given the geographic dispersion 

of its favored class of ‘‘Native Hawaiians.’’ As noted above, such individuals need 

not have any political, geographic, or cultural connection to Hawaii at all—and in 

16

fact live in each of the 50 states of the Union. Under this bill, throughout the 

United States, each of those favored persons would be afforded different rights and 

privileges from those afforded to his or her neighbors, based solely on race and ancestry classifications. Such differential treatment can be expected to encourage significant litigation and, much worse, to tear at the very fabric that makes us one 

Nation. 

II. Constitutional Concerns 

Beyond these fundamental policy concerns, we note that S. 310 directly and unavoidably engages constitutional questions that the Supreme Court has described as 

being of ‘‘considerable moment and difficulty.’’

Unless S. 310 can be justified as an exercise of Congress’s unique constitutional 

power with respect to Indian tribes, its creation of a separate governing body for 

native Hawaiians would be subject to (and would almost surely fail) strict scrutiny 

under the equal protection component of the Fifth Amendment, because it singles 

persons out for distinct treatment based on their ancestry and race. See Rice v. 

Cayetano, 528 U.S. 495, 512–20 (2000). The Supreme Court has already held that 

separate legal classifications for native Hawaiians can run afoul of constitutional 

constraints. In Rice, the Court considered a Hawaii provision that limited the right 

to vote to trustees of the state Office of Hawaiian Affairs (OHA) to descendents of 

people who inhabited the Hawaiian Islands in 1778. Id. at 499. The Court held that 

this provision was ‘‘a clear violation of the Fifteenth Amendment,’’ which prohibits 

the federal and state governments from denying the right to vote on account of race. 

Id. In reaching this conclusion, the Court rejected Hawaii’s argument that the restriction was not a suspect classification subject to strict scrutiny, explaining that 

‘‘[a]ncestry can be a proxy for race [and] is that proxy here.’’ Id. at 514. 

In further seeking to avoid strict scrutiny, Hawaii sought to rely on a prior Supreme Court decision that permitted certain tribal classifications in federal law. In 

Morton v. Mancari, 417 U.S. 535, 553–55 (1974), the Court rejected an equal protection challenge to an employment preference in the Bureau of Indian Affairs for 

members of federally-recognized Indian tribes. The Court concluded that, in light of 

‘‘the unique legal status of Indian tribes under federal law,’’ such a provision would 

be sustained if it was ‘‘reasonably related to fulfillment of Congress’s unique obligation to the Indians.’’ Id. at 551, 555. The Court stressed that the preference at issue 

was ‘‘not directed towards a ‘racial’ group consisting of ‘Indians,’’’ but rather 

‘‘applie[d] only to members of ‘federally recognized’ tribes,’’ and was therefore ‘‘political rather than racial in nature.’’ Id. at 554, n.24. Congress’s power with respect 

to groups appropriately regarded as Indian tribes includes the establishment of a 

mechanism for the tribe to assume a greater degree of self-government, as Congress 

did when it enacted the Indian Reorganization Act of 1934. See 25 U.S.C. § 461 et 

seq. The question concerning the constitutionality of S. 310 thus becomes whether 

Congress could permissibly recognize native Hawaiians as one of ‘‘the Indian Tribes’’ 

referred to in the Constitution. 

Relying on Mancari, Hawaii argued in Rice that, because native Hawaiians constituted the legal equivalent of an Indian tribe, the voting restriction at issue should 

be subjected only to rationalbasis review as a ‘‘political’’ classification. In framing 

that argument, the Court described as ‘‘a matter of some dispute’’—and a question 

‘‘of considerable moment and difficulty’’—‘‘whether Congress may treat the native 

Hawaiians as it does the Indian tribes.’’ Id. at 519. The Court decided to ‘‘stay far 

off that difficult terrain.’’ Id. at 519. Instead, it concluded that Mancari represents 

a ‘‘limited exception’’ to strict scrutiny of classifications based in part on race or ancestry, because the hiring preferences in Mancari involved the ‘‘political’’ status of 

recognized Indian Tribes and the ‘‘sui generis’’ nature of the BIA. Id. at 520. For 

these reasons, the Court explained that ‘‘sustain[ing] Hawaii’s [voting] restriction 

under Mancari’’ would ‘‘require[] [the Court] to accept some beginning premises not 

yet established in our case law.’’ Id. at 518. 

Ultimately, the majority in Rice concluded that, ‘‘even if we were to take the substantial step of finding authority in Congress, delegated to the State, to treat Hawaiians or native Hawaiians as Tribes, Congress may not authorize a State to create a voting scheme of this sort.’’ Id. at 519. In so doing, the Court stressed: ‘‘To 

extend Mancari to this context would be to permit a State, by racial classification, 

to fence out whole classes of its citizens from decisionmaking in critical state affairs.’’ Id. at 522. The Court likewise emphatically rejected Hawaii’s contention that 

the franchise could be restricted to native Hawaiians on the theory that the state 

OHA addressed only the interests of native Hawaiians. In response, the Court concluded that Hawaii’s position ‘‘rests, in the end, on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain 

17

matters. That reasoning attacks the central meaning of the Fifteenth Amendment.’’ 

Id. at 523. 

Justice Breyer, joined by Justice Souter, concurred in this result, but would have 

rejected Hawaii’s argument in favor of the voting restriction at issue on the grounds 

that: ‘‘(1) there is no ‘‘trust’’ for native Hawaiians, and (2) OHA’s electorate, as defined in the statute, does not sufficiently resemble an Indian tribe.’’ Rice, 528 U.S. 

at 525 (Breyer, J., concurring). On the latter point, Justice Breyer opined that, by 

including ‘‘individuals with less than 1/500th native Hawaiian blood,’’ the State’s 

definition of the restricted electorate was ‘‘not like any actual membership classification created by any actual tribe’’ and went ‘‘well beyond any reasonable limit’’ that 

could be imposed to define tribal membership. Id. at 526–27. 

The present bill, which purports to recognize a certain group of native Hawaiians 

as the equivalent of a federally-recognized Indian tribe, directly implicates the ‘‘difficult’’ constitutional question that the Supreme Court identified in Rice—whether 

Congress may constitutionally recognize native Hawaiians as an Indian tribe, thus 

rendering strict scrutiny inapplicable to preferences benefiting that racial and ancestral group. The bill also raises the further constitutional question addressed in 

Justice Breyer’s concurring opinion—whether Congress may create a sweeping definition of membership depending only on lineal descent over the course of centuries. 

The Supreme Court has long recognized the unique legal status of Indian tribes 

under federal law and the ‘‘special relationship’’ between the Federal Government 

and the Indian tribes. Mancari, 417 U.S. at 551–52. The primary source of Congressional authority to recognize Indian tribes is the Indian Commerce Clause of the 

Constitution, which states that ‘‘Congress shall have the Power . . . To regulate 

Commerce with... the Indian Tribes,’’ just as it has power to regulate commerce 

among the States and with foreign nations. See, e.g., McClanahan v. State Tax 

Comm’n, 411 U.S. 164, 172, n.7 (1973.) The Court also has identified the Constitution’s Treaty Clause, which authorizes the President, with the consent of the Senate, 

to enter into treaties, as a source of federal authority to recognize and deal with 

Tribes. See Id. The Federal Government’s authority in this area is thus grounded 

in two constitutional provisions that recognize ‘‘the Indian Tribes’’ as political entities capable of engaging in commerce and making treaties. Indeed, the Court has 

explained that federally-recognized Indian tribes are political entities that retain 

some of their original sovereignty over their internal affairs. United States v. Wheeler, 435 U.S. 313, 322 (1978) (‘‘The powers of Indian tribes are, in general, ‘inherent 

powers of a limited sovereignty which has never been extinguished.’ ’’) (citation omitted). 

Although the Supreme Court has consistently acknowledged Congress’ broad 

power to determine when and how to recognize and deal with Indian tribes, it has 

also observed that a predicate for the exercise of this power is the existence of a 

‘‘distinctly Indian communit[y].’’ United States v. Sandoval, 231 U.S. 28, 45–46 

(1913). Moreover, the Court has cautioned that Congress may not ‘‘bring a community or body of people within the range of this power by arbitrarily calling them an 

Indian Tribe,’’ Id. at 46, and that the courts may strike down ‘‘any heedless extension of that label’’ as a ‘‘manifestly unauthorized exercise of that power,’’ Baker v. 

Carr, 369 U.S. 186, 215–17 (1962). 

The Supreme Court has looked to various factors in determining what constitutes 

an Indian Tribe within Congress’s power to recognize. Compare Worcester v. Georgia, 31 U.S. 515, 557–59 (1832) (describing the ‘‘Indian nations’’ as distinct and selfgoverning political communities, ‘‘‘a people distinct from others’’’), with Montoya v. 

United States, 180 U.S. 261, 266 (1901) (describing a ‘‘Tribe’’ as ‘‘a body of Indians 

of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory’’). The decision in Rice v. Cayetano, moreover, makes it uncertain how the Supreme Court 

would analyze the particular context of Native Hawaiians. On such uncertain legal 

terrain, it is the Administration’s position that it is ill-advised to proceed with this 

legislation—particularly where, as here, there are strong policy reasons for not 

doing so. 

Given the substantial historical, structural and cultural differences between native Hawaiians as a group and recognized federal Indian tribes, the Administration 

believes that tribal recognition is inappropriate and unwise for native Hawaiians. 

We are strongly opposed to a bill that would formally divide governmental power 

along lines of race and ethnicity.

Senator AKAKA. Thank you very much, Mr. Katsas. 

Now, we will hear from Attorney General Mark Bennett. 

18

STATEMENT OF MARK J. BENNETT, ATTORNEY GENERAL, 

STATE OF HAWAII; ACCOMPANIED BY MICAH KANE,

CHAIRMAN, HAWAIIAN HOMES COMMISSION 

Mr. BENNETT. Thank you, Mr. Akaka, Senator Thomas, Senator 

Inouye, Senator Murkowski. Thank you very much for inviting me 

here to express my and Governor Linda Lingle’s strong support for 

S. 310. 

We believe that this bill is fair, equitable, just, constitutional 

and, with respect, long overdue. This bill enjoys strong bipartisan 

support in the State of Hawaii, including from the Governor, the 

State Legislature, our elected Mayors, and County Councils. 

I start my analysis of this bill as Hawaii’s chief legal officer with 

the organic document admitting Hawaii to the Union, the Admissions Act, which contains within it specifically identified fiscal and 

trust obligations to Native Hawaiians imposed upon the State of 

Hawaii by this very Congress. 

Congress could not, would not and did not condition Hawaii’s 

entry into the Union upon Hawaii’s perpetuating unceasing violations of the 14th Amendment. The very concept is anathema to Hawaii’s admission to the Union. Nor has the Congress acted unconstitutionally for almost a century in passing more than 100 acts for 

the benefit of Native Hawaiians. 

The legal premise underlying the Department of Justice’s testimony casts doubt on the constitutionality of all of these acts, all 

of which have been defended when challenged by the Department 

of Justice. Never in the more than two centuries of this republic 

has the Supreme Court of the United States struck down the recognition of an aboriginal people by the Congress pursuant to the 

Congress’s authority under the Indian Commerce Clause of the 

Constitution. 

The Supreme Court has stated that in affording recognition, the 

Congress must act rationally. Indeed, given the recognition that 

the Congress has afforded all of America’s other native peoples; 

given that the framers of the Constitution itself would have described the aboriginal inhabitants of the Hawaiian archipelago as 

Indians; given that the very crew members of Captain Cook who 

made the first Western contact with Hawaii described the inhabitants of the Hawaiian archipelago as Indians, a strong argument 

could be made that it would be irrational for the Congress not to 

recognize Native Hawaiians. 

The Supreme Court has specifically stated that the recognition 

afforded to our native peoples is political and not racial. This bill 

specifically states that the recognition afforded Native Hawaiians 

is of a type and nature of the relationship the United States has 

with the several federally recognized Indian tribes, and indeed the 

specificity with which this recognition is described in the bill, no 

more and no less, is based on suggestions made in negotiations 

over the language of this bill by the Department of Justice. 

If there were any doubt as to the constitutionality of the Akaka 

bill, I would respectfully suggest that that doubt was resolved by 

the recent United States Supreme Court decision in the Lara case. 

I find it curious that there is no citation to the Lara case in the 

Department of Justice’s written testimony. In Lara, the Supreme 

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nary and exclusive.’’ The Court also said: ‘‘The Constitution does 

not suggest that the Court should second guess the political 

branches’ own determinations.’’

As for Rice v. Cayetano, it was dealing with 15th Amendment 

questions, not the question of the power of the Congress to afford 

recognition under the Indian Commerce Clause. Indeed, I would 

suggest respectfully that the Congress should not let fears of judicial activism or overreaching deter it from fulfilling an obligation 

to the last remaining one of our Nation’s native peoples not yet recognized. 

As the Chair pointed out, we engaged in extensive negotiations 

with the Administration, the Department of Justice, the Department of Interior, and the Department of Defense over non-constitutional objections to the Akaka bill. All of those objections were resolved. The language in the Akaka bill today recognizes and addresses those objections. There can be no claims against the United 

States. The Native Hawaiian Governing Entity must recognize the 

civil rights of the citizens of the Native Hawaiian Governing Entity, and indeed there is nothing in this bill to suggest the possibility 

of secession or separatism. 

Native Hawaiians, Mr. Chairman, do not seek special or privileged treatment. Like our Nation’s other patriotic native peoples, 

Native Hawaiians have fought in wars and died for our Country for 

almost 100 years, including today in Iraq and Afghanistan. Native 

Hawaiians seek only treatment equal to that afforded to other Native Americans. The Akaka bill affords Native Hawaiians that 

treatment, and I respectfully ask that you pass the Akaka bill. 

Thank you. 

[The prepared statement of Mr. Bennett follows:]

PREPARED STATEMENT OF MARK J. BENNETT, ATTORNEY GENERAL, STATE OF HAWAII

Good morning Chairman Dorgan, Vice Chairman Thomas, and members of the 

United States Senate Committee on Indian Affairs. Thank you for giving me the opportunity to address this very important bill. 

This legislation, which I will refer to as the ‘‘Akaka Bill,’’ in honor of its chief author and this body’s only Native Hawaiian Senator, simply put, provides long overdue federal recognition to Native Hawaiians, a recognition that has been extended 

for decades to other Native Americans and Alaska Natives. It provides Native Hawaiians with a limited self-governing structure designed to restore a small measure 

of self-determination. American Indians and Alaska Natives have long maintained 

a significant degree of self-governing power over their affairs, and the Akaka Bill 

simply extends that long overdue privilege to Native Hawaiians. 

The notion of critics that S. 310 creates some sort of unique race-based government at odds with our constitutional and congressional heritage contradicts Congress’ longstanding recognition of other native peoples, including American Indians, 

and Alaska Natives, and the Supreme Court’s virtually complete deference to 

Congress’s decisions on such matters. It is for this Congress to exercise its best judgment on matters of recognition of native peoples. Although some have expressed 

constitutional concerns, those fears are unjustified. Congress should not let unwarranted fears of judicial overreaching curb its desire, and responsibility, to fulfill its 

unique obligation to this country’s native peoples. 

Native Hawaiians are not asking for privileged treatment—they are simply asking 

to be treated the same way all other native indigenous Americans are treated in 

this country. Congress has recognized the great suffering American Indians and 

Alaska Natives have endured upon losing control of their native lands, and has, as 

a consequence, provided formal recognition to those native peoples. Native Hawaiians are simply asking for similar recognition, as the native indigenous peoples of 

the Hawaiian Islands who have suffered comparable hardships, and who today continue to be at the bottom in most socioeconomic statistics. 

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1 231 U.S. 28, 46 (1913). 

2 302 U.S. 535, 539 (1938). 

3The Justice Department had other ‘‘non-constitutional’’ objections to or concerns with a previous draft of the bill, which were expressed in a July 13, 2005 letter from Assistant Attorney 

General William Moschella to Senator John McCain. Among the objections and concerns were 

that the then-bill did not include language explicitly precluding certain claims, that the bill 

needed to make clear that military facilities and military readiness would not be affected, that 

the bill need to specify the entity or entities that would have certain criminal jurisdiction, and 

that the bill needed to explicitly state that the Indian Gaming Regulatory Act would not apply 

and that the Native Hawaiian Governing Entity would not have gaming rights. Through negotiations which included the Indian Affairs Committee, Hawaii’s Senators, the White House, the 

Justice Department, the Defense Department, and the State of Hawaii, all of these ‘‘non-constitutional’’ objections and concerns were resolved by new language which is preserved in S. 310. 4See, e.g., Hawaiian Homelands Homeownership Act of 2000, Pub. L. No. 106–568, Section 

202 (13) (B). 5 528 U.S. 495 (2000). 

6See, e.g., Native Hawaiian Education Act, 20 U.S.C. § 7512(D); Hawaiian Homelands Homeownership Act of 2000, Pub. L. No. 106–568, Section 202 (13)(D). 

The Constitution gives Congress broad latitude to recognize native groups, and 

the Supreme Court has declared that it is for Congress, and not the courts, to decide 

which native peoples will be recognized, and to what extent. The only limitation is 

that Congress may not act ‘‘arbitrarily’’ in recognizing an Indian tribe. United States 

v. Sandoval. 1 Because Native Hawaiians, like other Native Americans and Alaska 

Natives, are the indigenous aboriginal people of land ultimately subsumed within 

the expanding U.S. frontier, it cannot possibly be arbitrary to provide recognition 

to Native Hawaiians. Indeed, because Native Hawaiians are not only indigenous, 

but also share with other Native Americans a similar history of dispossession, cultural disruption, and loss of full self-determination, it would be ‘‘arbitrary,’’ in a logical sense, to not recognize Native Hawaiians. 

The Supreme Court has never in its history struck down any decision by the Congress to recognize a native people. And the Akaka Bill certainly gives the Court no 

reason to depart from that uniform jurisprudential deference to Congress’s decisions 

over Indian affairs. The Supreme Court long ago stated that ‘‘Congress possesses 

the broad power of legislating for the protection of the Indians wherever they may 

be,’’ United States v. McGowan, 2 ‘‘whether within its original territory or territory 

subsequently acquired.’’ Sandoval, 231 U.S. at 46. 

Critics, including some in the Justice Department, 3 wrongly contend that the 

Akaka Bill creates a race-based government. In fact, the fundamental criterion for 

participation in the Native Hawaiian Governing Entity is being a descendant of the 

native indigenous people of the Hawaiian Islands, a status Congress has itself characterized as being non-racial. For example, Congress has expressly stated that in 

establishing the many existing benefit programs for Native Hawaiians it was ‘‘not

extend[ing] services to Native Hawaiians because of their race, but because of their 

unique status as the indigenous people . . . as to whom the United States has established a trust relationship.’’ 4 Thus, Congress does not view programs for Native 

Hawaiians as being ‘‘race-based’’ at all. Accordingly, a Native Hawaiian Governing 

Entity by and for Native Hawaiians would similarly not constitute a ‘‘race-based’’ 

government. 

This is not just clever word play, but is rooted in decades of consistent United 

States Supreme Court precedent. The key difference between the category Native 

Hawaiians and other racial groups, is that Native Hawaiians, like Native Americans 

and Alaska Natives, are the aboriginal indigenous people of their geographic region. 

All other racial groups in this country are simply not native to this country. And 

because of their native indigenous status, and the power granted the Congress 

under the Indian Commerce Clause, Native Hawaiians, like Native Americans and 

Alaska Natives, have been recognized by Congress as having a special political relationship with the United States. 

Those who contend that the Supreme Court in Rice v. Cayetano 5 found the category consisting of Native Hawaiians to be ‘‘race-based’’ under the Fourteenth 

Amendment and unconstitutional are simply wrong. The Supreme Court’s decision 

was confined to the limited and special context of Fifteenth Amendment voting 

rights, and made no distinction whatsoever between Native Hawaiians and other 

Native Americans. 

Furthermore, Congress has already recognized Native Hawaiians to a large degree, by not only repeatedly singling out Native Hawaiians for special treatment, 

either uniquely, or in concert with other Native Americans, but by acknowledging 

on many occasions a ‘‘special relationship’’ with, and trust obligation to, Native Hawaiians. In fact, Congress has already expressly stated that ‘‘the political status of 

Native Hawaiians is comparable to that of American Indians.’’ 6 The Akaka Bill simVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 S:\DOCS\35139.TXT JACK PsN: JACKF
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7The Admission Act, Pub. L. No. 86–3, 73 Stat. 4 (1959), Section 4. 

8 Id., Section 5. 9 United States v. Lara, 541 U.S. 193 (2004). 10 541 U.S. at 203. 11Declaration of Independence paragraph 29 (1776); see also Thomas Jefferson, Notes on the 

State of Virginia 100 (William Peden ed. 1955) (1789) (referring to Indians as ‘‘aboriginal inhabitants of America’’). Indeed, Captain Cook and his crew called the Hawaiian Islanders who 

greeted their ships in 1778 ‘‘Indians.’’ See 1 Ralph S. Kuykendall, The Hawaiian Kingdom at 

14 (1968) (quoting officer journal). 12Thomas Sheridan, A Complete Dictionary of the English Language (2d ed. 1789). 13Some opponents of the Akaka Bill argue that including all Native Hawaiians, regardless 

of blood quantum, is unconstitutional, citing the concurring opinion of Justices Breyer and 

Souter in Rice v. Cayetano. 528 U.S. at 524. But that opinion did not find constitutional fault 

with including all Native Hawaiians of any blood quantum provided that was the choice of the 

tribe, and not the state. Id. at 527. Because the Akaka Bill gives Native Hawaiians the ability 

to select for themselves the membership criteria for ‘‘citizenship’’ within the Native Hawaiian 

government, no constitutional problem arises. 

ply takes this recognition one step further, by providing Native Hawaiians with the 

means to reorganize a formal self-governing entity, something Native Americans 

and Native Alaskans have had for decades. 

Importantly, when Congress admitted Hawaii to the Union in 1959, it expressly 

imposed upon the State of Hawaii as a condition of its admission two separate obligations to native Hawaiians. First, it required that Hawaii adopt as part of its Constitution the federal Hawaiian Homes Commission Act, providing homesteads (for 

a nominal rent) to native Hawaiians. 7 Second, Congress required that the public 

lands therein granted to the State of Hawaii be held in public trust for five purposes, including ‘‘the betterment of the conditions of native Hawaiians.’’ 8 In admitting Hawaii on such terms, Congress obviously did not believe it was creating an 

improper racial state government, in violation of the Fourteenth Amendment, or any 

other constitutional command. Likewise, Congress should have no constitutional 

concern as to this bill, which simply (but importantly) formalizes the United States’s 

longstanding special political relationship with the Native Hawaiian people. 

Some opponents of the bill have noted that Native Hawaiians no longer have an 

existing governmental structure with which to engage in a formal government-togovernment relationship with the United States. That objection is not only misguided and self-contradictory, but directly refuted by the Supreme Court’s Lara decision 9 just 3 years ago. It is misguided because Native Hawaiians do not have a 

self-governing structure today only because the United States participated in the 

elimination of that governing entity, by helping to facilitate the overthrow of the 

Hawaiian Kingdom, and later annexing the Hawaiian Islands. Unlike other Native 

Americans who were allowed to retain some measure of sovereignty, Congress did 

not leave Native Hawaiians with any sovereignty whatsoever. It cannot be that the 

United States’s complete destruction of Hawaiian self-governance would be the reason Congress would be precluded from ameliorating the consequences of its own actions by trying to restore a small measure of sovereignty to the Native Hawaiian 

people. 

The objection is also self-contradictory because one of the very purposes and objects of the Akaka Bill is to allow Native Hawaiians to reform the governmental 

structure they earlier lost. Thus, once the bill is passed, and the Native Hawaiian 

Governing Entity formed, the United States would be able to have a governmentto-government relationship with that entity. 

Finally, and perhaps most importantly, the objection violates the Supreme Court’s 

recent Lara decision, in which the Court acknowledged Congress’ ability to 

‘‘restorer[] previously extinguished tribal status—by re-recognizing a Tribe whose 

tribal existence it previously had terminated.’’ 10 Indeed, Lara single-handedly eliminates this constitutional objection to the Akaka Bill, by recognizing Congress’ ability 

to restore tribal status to a people who had been entirely stripped of their self-governing structure. 

Those who say that Native Hawaiians do not fall within Congress’ power to deal 

specially with ‘‘Indian Tribes’’ because Native Hawaiians are not ‘‘Indian Tribes,’’ 

are simply wrong. For the term ‘‘Indian,’’ at the time of the framing of the Constitution, simply referred to the aboriginal ‘‘inhabitants of our Frontiers.’’ 11 And the 

term ‘‘tribe’’ at that time simply meant ‘‘a distinct body of people as divided by family or fortune, or any other characteristic.’’ 12 Native Hawaiians easily fit within both 

definitions. 13

Finally, some opponents of the bill contend that because the government of the 

Kingdom of Hawaii was itself not racially exclusive, that it would be inappropriate 

to recognize a governing entity limited to Native Hawaiians. This objection is absurd. The fact that Native Hawaiians over one hundred years ago, whether by 

22

14The same irony underlies the objection that Native Hawaiians should not be given recognition because they are not a fully segregated group within the Hawaiian Islands but are often 

integrated within Hawaii society at large, and sometimes marry outside their race. Those concerned about promoting racial equality and harmony should be rewarding Native Hawaiians for 

such inclusive behavior, or as we say in Hawaii, their ‘‘aloha’’ for people of all races, rather than 

using it against them. In any event, American Indians, too, have intermarried—at rates as high 

as 50 percent or more—and often venture beyond reservation borders, and yet those facts do 

not prevent them or their descendants from receiving federal recognition. 15 Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 355 (1945) (Jackson, J., concurring). 

choice or coercion, maintained a government that was open to participation by nonHawaiians, should not deprive Native Hawaiians today of the recognition they deserve. Indeed, it is quite ironic that those who oppose the Akaka Bill because they 

believe it contradicts our nation’s commitment to equal rights and racial harmony 

would use the historical inclusiveness of the Kingdom of Hawaii, allowing non-Hawaiians to participate in their government, as a reason to deny Native Hawaiians 

the recognition other native groups receive. 14

In short, there is simply no legal distinction between Native Hawaiians and 

American Indians or Alaska Natives, that would justify denying Native Hawaiians 

the same treatment other Native American groups in this country currently enjoy. 

The Akaka Bill, under any reasonable reading of the Constitution and decisions 

of the Supreme Court, is constitutional, just as is the Alaska Native Claims Settlement Act for Alaska Natives, and the Indian Reorganization Act for American Indian tribes—both of which assured their respective native peoples some degree of 

self-governance. The Supreme Court, as noted earlier, has made clear that 

Congress’s power to recognize native peoples is virtually unreviewable. 

At the very least, Congress should not refrain from exercising its authority and 

obligation to recognize native people because of a mere theoretical possibility the judicial branch could cast aside centuries of uniform precedent to assert judicial supremacy. Congress ought to act when it believes that what it is doing is just and 

right and within its constitutional authority. It should not allow unfounded fears 

of judicial activism to hamstring its responsibility to do the right thing. 

And so I emphasize and repeat, that Native Hawaiians are not asking for privileged treatment—they are simply asking to be treated the same way all other native 

indigenous Americans are treated in this country. Congress long ago afforded American Indians and Alaska Natives formal recognition. The Akaka Bill would simply 

provide Native Hawaiians comparable recognition, as the indigenous peoples of the 

Hawaiian Islands. Formal recognition will help preserve the language, identity, and 

culture of Native Hawaiians, just as it has for American Indians throughout the 

past century, and Alaska Natives for decades. To use the poignant words Justice 

Jackson employed 60 years ago: ‘‘The generations of [Native people] who suffered 

the privations, indignities, and brutalities of the westward march... have 

gone . . . , and nothing that we can do can square the account with them. Whatever survives is a moral obligation . . . to do for the descendants of the [Native 

people] what in the conditions of this twentieth century is the decent thing.’’ 15

The Akaka Bill does not permit secession; it will not subject the United States 

or Hawaii to greater potential legal liability; and it does not allow gambling. Nor 

would passage of the bill reduce funding for other native groups, who, it should be 

noted, overwhelmingly support the bill. Instead, the Akaka Bill will finally give official and long overdue recognition to Native Hawaiians’ inherent right of self-determination, and help them overcome, as the United States Supreme Court in Rice put 

it, their loss of a ‘‘culture and way of life.’’ The Akaka Bill would yield equality for 

all of this great country’s native peoples, and in the process ensure justice for all. 

As the Attorney General of Hawaii, I humbly and respectfully ask that you support this important legislation.

Senator AKAKA. Thank you very much, Mr. Bennett. 

Now, we will hear from Ms. Apoliona. 

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STATEMENT OF HAUNANI APOLIONA, CHAIRPERSON, BOARD 

OF TRUSTEES, OFFICE OF HAWAIIAN AFFAIRS;

ACCOMPANIED BY WILLIAM MEHEULA, LEGAL COUNSEL TO 

THE OFFICE OF HAWAIIAN AFFAIRS 

Ms. APOLIONA. Senator Akaka, Senator Thomas, Senator Inouye, 

Senator Murkowski, and all present, on behalf of the indigenous 

native people of Hawaii, I extend our aloha. 

I am Haunani Apoliona. I serve as Chairperson of the Board of 

Trustees of the Office of Hawaiian Affairs. Seated behind me are 

Trustees Akana, Mossman and Stender. To my right is William 

Meheula, Counsel to the Board of Trustees. 

The Office of Hawaiian Affairs was established in 1978 when the 

citizens of Hawaii participated in a statewide referendum to ratify 

amendments to the Hawaii State Constitution. The record of proceedings of this 1978 constitutional convention is clear that the Office of Hawaiian Affairs was established in order to provide the native people of Hawaii with the means by which to give expression 

to their rights under Federal policy to self-determination and selfgovernance. 

In 1849, the government that represented the Native Hawaiian 

people entered into a treaty of friendship, commerce and navigation 

with the United States. In 1893, our native government was removed from power by force, but the United States Congress did not 

abandon us. One hundred years later, the Congress adopted a resolution extending an apology to the Native Hawaiian people for the 

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

In the intervening years, the Congress enacted well over 150 

statutes that defined the contours of our political and legal relationship with the United States. Today, we, the indigenous native 

people of Hawaii seek enactment of S. 310. We do so in recognition 

of the fundamental principle that the Federal policy of self-determination and self-governance is intended to assure that the three 

groups of America’s indigenous native people—American Indians, 

Alaska Natives, and Native Hawaiians—have an equal status 

under Federal law. 

Mr. Meheula will continue with our comments. 

Mr. MEHEULA. Good morning, Mr. Chairman, Mr. Vice Chairman, members of the Committee. After reading many, many cases 

concerning this issue, learning the history of Hawaii and the history of American Indians and Alaska Natives, and reading the 

many statutes that concern this issue, these are the five reasons 

why the Akaka bill is constitutional and not race-based. 

The first one is, Native Hawaiians are the first aboriginal peoples of Hawaii. Number two, the Hawaiian Kingdom was an indigenous government that had treaties with the United States. Number 

three, the United States, by threat of force, overthrew the Hawaiian Kingdom, and the Hawaiian Kingdom lands were turned over 

to the United States. Number four, since annexation, there have 

been over 150 acts of Congress that have recognized the political 

status of Native Hawaiians, including the Admission Act. And 

number five, the Apology Resolution stated that Native Hawaiians 

have never relinquished their claims to their inherent sovereignty. 

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If you take all of those five factors and apply it to any of the 

cases, it says that Congress has the power to pass the Akaka bill 

and it will not be struck down in a court of law. A court of law will 

not second guess Congress on this issue. 

Thank you very much. 

Senator AKAKA. Thank you very much, Mr. Meheula. 

[The prepared statement of Ms. Apoliona follows:]


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Senator AKAKA. Mr. Katsas, doesn’t the Department of Justice 

have to defend the constitutionality of any law that Congress enacts? 

Mr. KATSAS. Senator, the Department will defend the constitutionality of any law you enact, subject to two exceptions. One is if 

there is no reasonable argument in favor of constitutionality. The 


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other is if there is a conflict between the legislative and executive 

branches. The second exception is not at issue here. 

I can’t speak for the Solicitor General. I can tell you that if he 

concludes that the constitutional questions here are close and difficult ones, I assume that applying that standard, he would defend 

the law. But the question whether the department would defend 

the law in litigation is different from the question of whether, in 

our best judgment, it raises tough constitutional issues, and also 

different from our policy judgment about whether or not it is an appropriate exercise of the Congress’ power. 

Senator AKAKA. In your testimony, Mr. Katsas, you reference a 

January, 2006 briefing report by the United States Commission on 

Civil Rights. 

Mr. KATSAS. Yes. 

Senator AKAKA. Given that the Department of Accountability 

published a May, 2006 report titled United States Commission on 

Civil Rights: The Commission Should Strengthen Its Quality Assurance Policies and Make Better Use of Its State Advisory Committees. During that briefing, was the Hawaii State Advisory Committee allowed to contribute to the briefing? 

Mr. KATSAS. I don’t know the answer to that. I think we sight 

the Commission on Civil Rights’ report as evidence of the strong 

feelings on the other side of this question. We recognize there are 

strong disagreements and strong feelings on both sides. 

Senator AKAKA. Let me ask you, do you know whether there 

were any dissenting views on the USCCR briefing report? 

Mr. KATSAS. I believe there were. 

Senator AKAKA. Well, I have a May 2, 2006 press release where 

the HICAC condemns the USCCR for planning and implementing 

its briefing without seeking or obtaining input from HICAC or acknowledging the past three HICAC reports on issues affecting Native Hawaiians. Do you know about that? 

Mr. KATSAS. I am not familiar with the press release. 

Senator AKAKA. It is my understanding that there were, and you 

did say there were dissenting views by Commissioners Melendez 

and Yaki, and that both raised grave concerns about the recent 

USCCR report opposing the bill, without listing findings or having 

a factual analysis. 

My final question to you is, would you support a report that did 

not include findings or having factual analysis? 

Mr. KATSAS. Obviously, Senator, the more analysis, the better. 

We are willing to have our constitutional and policy objections reviewed on the merits, and I am here to present them on the merits 

without any particular deference to the processes of one of many 

groups that have looked at this. 

Senator AKAKA. Thank you. 

Mr. Mark Bennett, does this bill create a race-based government? 

Mr. BENNETT. No, Senator, absolutely not. If one accept the 

premise of the Supreme Court in Morton v. Mancari, which I believe we all must, that recognition afforded to aboriginal groups is 

based upon a political recognition, rather than a racial recognition. 

That is why Congress’s judgments are reviewed under the rational 

basis test, rather than any other, and the recognition afforded here, 

which the bill explicitly states is of a type and nature of the recVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 S:\DOCS\35139.TXT JACK PsN: JACKF
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ognition afforded American Indians, then clearly this is not racial 

recognition, but political. 

Senator AKAKA. How will the bill affect personal property, social 

services and citizenship rights? 

Mr. BENNETT. Senator, what the bill first expressly provides is 

that unless and until there are negotiations between the three governments, the status quo is completely maintained. The bill makes 

that clear in a number of different areas. This was, again, part of 

our negotiations with the Department of Justice and the Administration. 

One of their textual objections to the bill was it didn’t make clear 

what powers were and were not transferred upon recognition. The 

bill now makes absolutely clear that the status quo is absolutely 

maintained, except for the recognition, unless and until there is implementing legislation by the Congress. 

The bill also makes clear that nothing in the recognition can affect land title or can give rise to any particular claim that didn’t 

exist prior to the passage of the bill. Indeed, at the request of the 

Department of Justice, the bill even extinguishes for a period of 

time until further negotiations any extant claims that Native Hawaiians might have had against the Department of Justice. So at 

the Department of Justice’s request, the bill improves the position 

of the United States vis-a-vis possible claimants. 

So the short answer, which I recognize I haven’t given, is that 

the status quo is maintained. 

Senator AKAKA. Let me be more specific and ask, would this bill 

allow Native Hawaiians to bring action against private landowners? 

Mr. BENNETT. Absolutely not. 

Senator AKAKA. There are some claims that extending Federal 

recognition to Native Hawaiians will result in neighbors in Hawaii 

being subject to different civil and criminal laws. Would that be the 

case? 

Mr. BENNETT. Well, the bill itself provides, again Senator, that 

the status quo as to jurisdiction is maintained. It is possible that 

the negotiations between the three governments could provide, for 

example, that similar to some type of tribal autonomy that Indian 

tribes have over their own members or other Indians on reservation land, that it is possible that negotiations could provide for jurisdiction over Native Hawaiians with regard to some matters similar to the type of jurisdiction that Native Americans exercise over 

their members, but there is no preordination of that. There is no 

requirement of that, and the bill contemplates that that could only 

come into place after negotiations between the Native Hawaiian 

governing entity, the United States and the State of Hawaii. 

Senator AKAKA. Thank you. 

Senator Thomas? 

Senator THOMAS. Okay. Mr. Katsas, in your testimony, you cited 

cases suggesting Congress might not have the authority to recognize Native Americans as proposed here. The other witnesses, of 

course, have suggested it does have the authority. You seem both 

to rely on the Rice case. Is the Rice case about a Native Hawaiian 

organization like this one contemplated in S. 310? 

37

Mr. KATSAS. Senator, it is about a classification like the one at 

issue here, namely a scheme in which there is a distinction in the 

law made with respect to all descendants of the original settlers of 

Hawaii. There are several aspects of Rice that raise constitutional 

questions. 

The Supreme Court, looking at that kind of distinction, a majority of the Supreme Court concluded that it was race and ethnicity 

based. It sets up the tribal principles that General Bennett referred 

to under Morton v. Mancari as a limited exception to the fundamental constitutional norms preventing discrimination based on 

race and ancestry. 

It makes clear that the Mancari principle may be less favored 

where issues of voting come into play, as they do here. And with 

respect to the exact question that we are discussing, whether Congress can mitigate these problems by recognizing Native Hawaiians 

as a tribe, a majority of the Supreme Court says that is a close and 

difficult question, and two concurring Justices, Justice Breyer and 

Justice Souter, addressed that question and concluded that a broad 

definition of Native Hawaiians, like the one at issue in Rice and 

like the one at issue here, is impermissible. It is too broad to encompass the constitutional notion of an Indian tribe. 

Senator THOMAS. Okay. You indicated, and tell me very briefly, 

the number of authorities that you cite that would go to the Native 

Hawaiians under this arrangement. You listed a number of things 

in your statement. 

Mr. KATSAS. Right. 

Senator THOMAS. Like what? 

Mr. KATSAS. I am sorry. Authorities that can be exercised by the 

government? 

Senator THOMAS. No, by the Native Hawaiians, challenges to do 

things there, if they were given this authority. 

Mr. KATSAS. I think General Bennett is exactly right that the 

final configuration of this government remains unknown and would 

need further implementing legislation to effect. Our point in citing 

both what is decided by referendum at the initial constitutional 

convention stage, and then what the governing entity can negotiate 

with the United States, our point in citing all of those things is 

that sovereignty is on the table. What is contemplated under this 

bill is the creation of a separate government. The department’s concern is that goes substantially beyond a program providing a discrete benefit like access to land or health care. When you create a 

discrete government along these problematic lines, we start to have 

real policy concerns, as well as constitutional concerns. 

Senator THOMAS. Okay, very quickly, Mr. Bennett, who currently 

own the lands conveyed to the Hawaii Homes Commission Act? 

Would these lands become Native Hawaiian reservations? 

Mr. BENNETT. The State of Hawaii holds the fee title in trust for 

the benefit of Native Hawaiians of a particular blood quantum as 

required by the Admissions Act. The United States holds the right 

to enforce the trust obligations against the State of Hawaii. This 

is an asset that theoretically could be conveyed to the Native Hawaiian governing entity, but it would require substantial changes 

in Federal law and the Hawaii Constitution after negotiations. So 

38

the transfer of that asset is possible, but it would require changes 

to Hawaii’s organic law and to the Federal statutes. 

Senator THOMAS. How would this legislation determine whose is 

a Native Hawaiian? It doesn’t mention limits. What would the 

membership be? What standards do you have regarding blood 

quantum or residential requirements or any of those things? 

Mr. BENNETT. Senator, what the bill does is it provides who initially can vote, in determining, among other things, the requirements for being a member of the entity. So this bill does not predetermine who can be a member of the Native Hawaiian governing 

entity, as I would respectfully say it shouldn’t. That should be up 

to the people who will be voting, and they are people with a particular blood quantum who can trace their ancestry to the original 

aboriginal inhabitants of the Hawaiian archipelago. 

So they will define who is a member of the Native Hawaiian governing entity. If I may add, that is why I would respectfully say 

Mr. Katsas’s comment about Justice Souter’s and Breyer’s concurrence is inapt because what they were talking about are Government-imposed membership criteria. There is nothing in their concurrence, I would respectfully suggest, that would say that there is 

a problem if it is the members themselves of the entity who define 

the criteria in that way. 

Senator THOMAS. So they can expand it wherever they chose? 

Mr. BENNETT. I would suggest that if they were to expand it to 

beyond shared racial characteristics of Native Hawaiians, that it 

would likely not be constitutional, but they could certainly contract 

is to a subset of that. 

Senator THOMAS. Thank you. 

Thank you, Mr. Chairman. 

Senator AKAKA. Thank you very much, Senator Thomas. 

Senator Inouye? 

Senator INOUYE. Mr. Katsas, are you really serious that if this 

bill passes and the process is carried out, that the people in this 

entity would seek independence and practice separatism? 

Mr. KATSAS. I hope that is not likely, Senator. 

Senator INOUYE. But you mentioned that. 

Mr. KATSAS. Well, we mention that because for some supporters 

of the bill, that is an issue that is up for grabs. 

Senator INOUYE. There are a few people who might say that, but 

this nation went to war and killed thousands of people. Just recently, we shot up a family in the mountains because they refused 

to abide by the laws of the land. Do you think this Congress and 

our President would tolerate any move like this seriously? 

Mr. KATSAS. I hope not, Senator, but the point is that the bill 

puts sovereignty on the table. Whether it is the more temperate 

version of some supporters who seek to preserve particular programs, or the more extreme version of some supporters who seek 

a high degree of independence, it is sovereignty on the table. The 

people eligible to engage in this government-forming process are 

defined by reference to race and ancestry. 

Senator INOUYE. Don’t you agree that every step in this process 

involves the Justice Department and the State? 

Mr. KATSAS. I would agree that there are checks and balances as 

the process goes forward, but again, number one, sovereignty is on 

39

the table; and number two, our constitutional and policy concerns 

really go to what happens at the front end. 

Senator INOUYE. At best, it is limited sovereignty, isn’t it? No Indian tribe has the right to have coins and currency. No Indian 

tribes may declare war. No Indian tribes may have ambassadors 

sent to other countries. It is a limited sovereignty. In fact, most Indian tribes even don’t have police departments. 

Mr. KATSAS. I would hope that the product of the negotiations 

would not put anything like that on the table. But whether it is 

a broader or narrower notion of sovereignty, we still are talking 

about a separate government, and we still are talking about a process where the people who get to design the government are defined 

by reference to race and ancestry. 

Senator INOUYE. So in the negotiations, you would not recognize 

or approve separatism or the right to issue coins, or the right to 

send ambassadors, the right to have uniformed forces and declare 

war, would you? 

Mr. KATSAS. I would hope not, but again, the negotiations encompass sovereignty issues like land transfers, like the exercise of civil 

and criminal jurisdiction, and like the redress of historic wrongs. 

It is an open-ended category. But our constitutional position, I 

want to be clear, does not depend on where the negotiations end 

up at the end of the process. 

Senator INOUYE. You have indicated that you are against this because it covers Hawaiians who do not live in Hawaii. 

Mr. KATSAS. It defines a class of people that is broader in its geographic dispersion, in its racial and cultural diversity, and in its 

lack of connection to an actual or de facto self-governing process. 

Senator INOUYE. So if I am a Navajo and I want to be a part of 

the Navajo Nation, I must live in Navajo lands. Is that what you 

are saying? 

Mr. KATSAS. No, that is not what we are saying. What we are 

saying is when you look at this particular class, and you look at 

all of the indicia of discreteness suggested in the Supreme Court 

cases, which are cultural, geographic, and political, this definition 

seems to us broader than all others, and that was the conclusion 

of Justice Breyer and Justice Souter speaking on the Supreme 

Court. 

Senator INOUYE. Do you believe that the sovereignty of Indian 

nations is based on race? 

Mr. KATSAS. I think when the Federal Government has relations 

with an existing tribe, or recognizes a tribe qua tribe as a political 

entity, the Supreme Court has said that is a political classification. 

Senator INOUYE. Why can’t that apply to Hawaiians? 

Mr. KATSAS. Because the Supreme Court has also said that there 

are judicially enforceable limits on Congress’s power to recognize 

tribes and the Supreme Court has made quite clear that if the case 

of Hawaii falls outside the scope of those limits, then we are left 

with a naked classification based on race and ancestry. 

Senator INOUYE. The activity we are embarking on at this moment is unconstitutional? 

Mr. KATSAS. It raises serious constitutional questions. 

Senator INOUYE. The Administration is telling us that this is unconstitutional? 

40

Mr. KATSAS. We are telling you that we think the constitutional 

questions are close. We think there is a litigation risk. The same 

considerations that make this a close constitutional question also 

cause us to oppose the bill on policy grounds, those considerations 

that the Federal Government should not seek to divide sovereignty 

on lines of race and ethnicity. 

Senator INOUYE. General Bennett, do you agree in your responses? 

Mr. BENNETT. No. I don’t. I certainly couldn’t dispute that there 

is a constitutional issue here, but it strikes me that in a circumstance where the court has never overturned the Congress’ recognition of an aboriginal entity, that the conservative viewpoint on 

this is that it should be up to the particular political branch at 

issue, the Congress, to first define the limits of its authority, and 

it should not be deterred from that because of the possibility that 

a court, for the first time in our Nation’s history, might overrule 

the political branch’s exercise of its authority, especially given the 

Lara case in which the Supreme Court went to great lengths to 

talk about the plenary nature of the Congress’ authority. 

It is, of course, always possible that a court could rule that an 

action by a political branch is outside the limits of the Constitution, 

but the mere possibility that the court could do that, I would respectfully say, should not deter one of the political branches from 

acting. I don’t believe it has deterred the political branches from 

acting to the limits of their authority in the court of our Nation’s 

history, given again that there has never been the overturning of 

a determination by Congress, given the Supreme Court’s recent discussion of the Menominee Restoration Act, that Congress has the 

power to recognize, to un-recognize, and then to recognize again. 

And given at least the philosophical similarity of that situation 

to the instant situation, I would urge the Congress to act to do 

what it believes is right, and to let the court case sort itself out 

when it comes. 

Senator INOUYE. Thank you very much, sir. 

Senator AKAKA. Senator Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman. I know we have 

a vote underway, so I will try to make my questions brief. 

Mr. Katsas, I guess I am listening to your responses to Senator 

Inouye about sovereignty and the sovereignty issue being on the 

table. This is where the concern is coming from from the Department of Justice. 

We certainly heard this in Alaska when we were dealing with 

our Alaska Native Land Claims Settlement. You know, we are 

going to have all these independent nations up there and the world 

as we knew it was going to come to an end. It was a cast of 

horribles. I think we look to what has happened in Alaska and how 

the Alaska Natives have truly demonstrated through their form of 

governments a model. 

I think for the Department of Justice to say, well, for policy reasons, because this small aspect may be on the table, and to kind 

of inflame the issue, I think, by suggesting that we are going to 

have a separatist entity. We are going to see this factionalism, I 

think is doing an injustice to the argument from the get-go. 

41

Several times now in the questioning, we have referred back to 

Rice v. Cayetano. I guess my question to you will be simple because 

it will require a yes or a no response. But do you believe that the 

Supreme Court holding in Rice expressly deprives Congress of the 

ability to determine that the Native Hawaiians fall within the 

ambit of the Indian Commerce Clause? 

Mr. KATSAS. The one-word answer is no. The qualification is that 

although Rice has no explicit holding to that effect, it does have 

analysis that underscores our concerns. 

Senator MURKOWSKI. You know that case well, but in Rice, the 

majority expressly states we are going to stay far away from that 

difficult terrain, and that was a comment that I had made in my 

opening as well. 

Mr. Bennett, let me ask you, you have mentioned several times 

that the Department of Justice has apparently neglected to mention the Lara case. I will admit that I am not familiar with that 

holding, but based on what you have given the Committee this 

morning, I guess we have not yet specifically concluded, either from 

Rice, or perhaps you find greater assurances in the Lara case, that 

in fact the constitutional issue that is being raised here is one that, 

in your opinion, is not as problematic as Justice is laying it out at 

this point. 

Mr. BENNETT. Yes. I think that even the concurrence and the difficult terrain comment in Rice has to be viewed through the lens 

of Lara, where the court went to great pains to discuss the plenary 

authority of Congress, where it even said we are not going to suggest what the metes and bounds are of the Congress’ authority. 

I think that that is part of the philosophy that underlay Morton 

v. Mancari, that when you were talking about the Congress exercising its constitutional right to develop political relationships, that 

those are determinations uniquely suited to the political branches 

of government, and not to the courts. I believe that that was the 

point made by the majority in Lara, that these kinds of political 

decisions ought to be left to the political branches. 

Senator MURKOWSKI. In the statement provided by the Department of Justice, it suggests that the State of Hawaii is somehow 

or other backing out on the bargain by which Hawaii was granted 

statehood, just by the nature of this Akaka bill. Was there any 

such bargain? I believe your statement initially was that you 

couldn’t and there were no conditions such as this to statehood. 

But I would just like you to repeat that again. 

Mr. KATSAS. Is that for me? 

Senator MURKOWSKI. No, that is for Mr. Bennett. 

Mr. BENNETT. I would say two things. First of all, I find in this 

regard the department’s comments ironic because the Admissions 

Act specifically requires fiscal and trust obligations by the State of 

Hawaii toward Native Hawaiians. What underlays the department’s testimony that benefits for Native Hawaiians are perhaps 

unconstitutionally racial in nature, that it is part of the bargain 

that the State of Hawaii must fulfill these obligations. If they are 

somehow illegal under the 14th Amendment, then I find the comments about the breaking a political bargain ironic. 

But putting that aside, there is nothing in the Admissions Act 

or the debate preceding the Admissions Act which suggests that 

42

the type of recognition afforded other Native Americans could not 

be afforded at sometime in the future to Native Hawaiians, that 

that somehow is breaking the bargain either philosophically, legally, or in some other sense. There is no historic basis for that. 

America is a great melting pot and there is nothing about that that 

is inconsistent with affording recognition to Alaska Natives, to 

American Indians, or to Native Hawaiians. 

Senator MURKOWSKI. And then just to quickly follow up on that, 

Ms. Apoliona, it has been suggested that Native Hawaiians have 

somehow or other chosen to abandon their distinct culture and 

community and truly their ways at the time of Statehood in order 

to become Americans. I look at our situation in Alaska, and just because you are an Eskimo does not mean that you are not an American. 

I guess the question to you is whether or not you believe that 

Native Hawaiians have sought to retain their very distinct culture 

since the overthrow of the monarchy, or whether, as the Department of Justice insists, that you are completely assimilated? 

Ms. APOLIONA. We are not completely assimilated. Since the 

overthrow, Native Hawaiians have continued to assert our culture 

and our traditions by practice, by continuation of our language. The 

Native Hawaiians have continued their bridge from governance 

from a traditional time to the present time, through our royal societies. There is a continuing effort by Native Hawaiians, through 

the organization of our civic clubs, Hawaiian civic clubs that continue to today. There are homesteaders who continue to assert 

their role and their traditions and practices as well. 

And even at the time of the overthrow, Native Hawaiians asserted opposition to the annexation and it is documented. We have 

continued to carry our traditions and our ancestors forward with 

us, even to today. We certainly are not assimilated. I am an example sitting before you today of the Office of Hawaiian Affairs, and 

our efforts to continue to advocate for Native Hawaiians going forward for continuing benefits and the well-being of our native people. 

Senator MURKOWSKI. Thank you. 

Thank you, Mr. Chairman. 

Senator AKAKA. Thank you, Senator Murkowski. 

We have a vote here on the Floor. We can have a second round 

after this recess. I would like at this time for this Committee to 

stand in recess until the vote is concluded. 

[Recess.] 

Senator AKAKA. The Committee will be in order. We will resume 

questioning of the first panel. 

Mr. Meheula, we recognize that some in the native community 

seek independence from the United States, while others prefer to 

seek Federal recognition. From your point of view, do you think 

that Native Hawaiian supporters of this bill seek to secede from 

this Union? 

Mr. MEHEULA. No, Senator Akaka. There is a loud small minority that sometimes voices independence, but they do not support 

the bill. The supporters of the bill want to work within the Indian 

Commerce Clause power. The way the bill is set up, it provides 

that before there is even an election of officers for the Native HaVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 S:\DOCS\35139.TXT JACK PsN: JACKF
43

waiian Governing Entity, that the Department of Interior has to 

certify the organic documents. One of the criteria that they have 

to satisfy themselves of is that the organic documents are consistent with applicable Federal law, which of course would not 

allow independence. 

I think the other way to look at that issue is that the majority, 

in fact about 75 out of 77 State Senators and Representatives in 

our State support the Akaka bill. A poll was taken that showed 

that 84 percent of the Hawaii residents support Federal recognition 

for Native Hawaiians. That would not be the case if they thought 

that there was even a small possibility of independence. 

Senator AKAKA. Along the line of the native peoples, I would like 

to ask Mr. Micah Kane a question, and give you an opportunity to 

answer Senator Mikulski’s question. My question to you is, are the 

Native Hawaiians assimilated? 

Mr. KANE. I think the irony of that question is that in Hawaii, 

Americans have assimilated to Hawaiians. Hawaiians have not assimilated to Americans. You have seen in the cultural practices of 

our hula, where non-Hawaiians, thousands of them, participate in 

hula festivals practicing our cultural hula. It is seen in the thousands of non-Hawaiians who practice in our language in our charter schools and in our immersion schools. It is seen in the practices 

of our cultural practices on a family basis, in celebrating a child’s 

one year luau, where non-Hawaiians practice that. 

So it is quite ironic where the question is posed in a way where 

are Hawaiians assimilating to American, when in Hawaii is it nonHawaiians who have assimilated to our culture and the value set 

of welcoming people to our lands. 

Taking it one step further, that value set of welcoming others as 

a melting pot in Hawaii has brought us to defending our trust in 

Hawaii in Hawaiian lands. I find that quite ironic. 

Senator AKAKA. Mr. Kane, what is your feeling about the Akaka 

bill and what significance it has for the Native Hawaiians? 

Mr. KANE. As the Chairman of the Hawaiian Homelands Commission, we spend an inordinate amount of time defending our 

right to exist as a native trust in Hawaii. We spend millions of dollars defending our right to exist, when our efforts should be put in 

fulfilling the fiduciary responsibilities that are stated in the Hawaiian Homes Commission Act. 

So this Act has a tremendous impact on our ability to continue 

to serve the Hawaiian people and to serve the State of Hawaii. 

Today, the Hawaiian Homes Commission and the Department of 

Hawaiian Homelands is the largest residential developer in the 

State of Hawaii. One hundred percent of the homes that we build 

are affordable. We are part of the fabric of Hawaii. We are part of 

the success of Hawaii, and we are part of helping our State address 

many of the crisis issues that are important to us, like housing. 

Our lands in many ways are used to generate revenue that provide us with a self-sufficient opportunity to operate. Many of our 

non-Native family members use our lands in order to work. We 

manage over 400 different land dispositions that provide employment to companies throughout our State. It generates millions of 

Federal tax dollars and State tax dollars. 

44

So this bill is critical to allowing our department to exist as it 

does today. The issue at hand today and the consideration by Congress by some, especially by people in Justice, may seem like a 

quantum leap for them, but for us in Hawaii it is just a natural 

progression. People in Hawaii see the operation of the Department 

of Hawaiian Homelands. They embrace it. They see the operation 

of the Office of Hawaiian Affairs. They embrace it. And for those 

reasons, they embrace this Act. 

Senator AKAKA. Thank you very much, Mr. Kane. 

Senator Inouye? 

Senator INOUYE. I thank you very much, Mr. Chairman. 

I just wanted to provide a few statistics. During the Vietnam 

War, only one National Guard infantry brigade was sent to Vietnam. That brigade was the Hawaii National Guard. Many were 

wounded. Many were killed. We did not complain. A disproportionately large number of the members of that Guard were Native Hawaiians. 

At this moment, we have National Guard members from Hawaii 

in Iraq. A disproportionately large number of members of that brigade are from the Native Hawaiian community. They are just as 

American as anyone else and to suggest that they may involve 

themselves in separatist movements I think is an insult to them. 

As for involvement in our government, they are in the highest 

leadership position in every category. The last Governor of the Territory of Hawaii was a distinguished member of the Native Hawaiian community. One of the first governors of Hawaii was a distinguished Native Hawaiian. We have an abundance of Native Hawaiians in the legislature, as mayors. Right now, the Mayor of Honolulu and the Mayor of Maui are all Polynesians. 

So I am certain that the Native Hawaiian community in Hawaii 

is well prepared to run a very responsible government entity. We 

are looking forward to that, sir. 

Thank you. 

Senator AKAKA. I want to thank you all for the questions. I want 

to thank our first panel for being here today and for your responses. I want to thank those who have come so far to attend this 

hearing. As you know, this hearing has been focused on the legal 

aspects of the bill. I want to thank all of your for contributing towards that for the Committee. It may well be very helpful. 

So mahalo noeloa. Thank you very much. 

Now, I would like to have our second panel come forward. 

Mr. William Burgess represents Aloha for All. Mr. Burgess is a 

retired attorney who now advocates against the reorganization of 

a Native Hawaiian government. Mr. Burgess will testify in opposition to S. 310, raising various concerns, including his concern that 

the bill would divide the State into separate racial jurisdictions and 

violate the equal protection of the laws. 

Mr. Viet Dinh is a professor of law at Georgetown University 

Law Center. Professor Dinh will testify about Congress’s authority 

to establish a process for the reorganization of a Native Hawaiian 

entity. Mr. Dinh is one of the authors of a recent paper on this 

matter. 

Mr. Burgess, will you please proceed with your statement? 

45

STATEMENT OF H. WILLIAM BURGESS, ALOHA FOR ALL 

Mr. BURGESS. Aloha and thank you. 

Senator AKAKA. Aloha. 

Mr. BURGESS. Mr. Chairman, thank you. 

S. 310 would be the first step in the breakup of the United 

States. Its premise is that Hawaii needs two governments, one in 

which everyone can vote and that government must become smaller and weaker; and one in which only Native Hawaiians can vote, 

and that one must become bigger and stronger as the other government becomes smaller and weaker. 

In the negotiation process called for by S. 310, transfers go only 

one way. Those transfers are unlimited in scope and in duration. 

It can and very likely will, that process of negotiation, continue 

slice by slice, year after year, until the State of Hawaii is all gone. 

But even then, the process won’t be over because there are today 

living descendants of the indigenous people of every State in the 

Union. Surely, they will take notice and demand their own governments. 

In 1778 when Captain Cook’s ships happened upon the Hawaiian 

Islands, they found the most stratified of the Polynesian chiefdoms. 

They found a system that was referred to as the kapu system, in 

which high rank holds the rule and possesses the land title. Commoners were landless and subject. 

At that very time in history, when Captain Cook’s ships arrived 

in Hawaii, the people of the United States were engaged in a rebellion against a monarchy which attempted to subjugate them. They 

were in the process of creating on that continent a new Nation conceived in liberty and dedicated to the principle that all men are 

created equal. 

Pretty soon after that, the histories of the Kingdom of Hawaii 

and the people of Hawaii and the people of the United States intertwined, not by conquest, but by trade, by mutual exchanges between people that were mutually beneficial. Soon, Hawaiians themselves liked the new system. They liked being part of the world 

trade because it brought them benefits. In 1840, Hawaii adopted its 

first constitution. That constitution began with a preamble that 

said God hath made of one blood all nations of men to dwell on the 

earth in unity and blessedness. God hath also bestowed certain 

rights alike on all men and all chiefs and all people of all lands. 

Since that time, the people of Hawaii began progressing from the 

harsh kapu system and moved slowly and inexorably toward freedom and liberty and equality. 

And then that process at some point reversed itself. I believe the 

time at which that reversal of direction took place was in 1921. 

Ironically, it happened because of the Congress of the United 

States adopting the Hawaiian Homes Commission Act. For the first 

time in Hawaii, and for the first time in the United States, explicit 

race was used and imposed on the people of Hawaii and on the people, indirectly, of the United States. It said that the beneficiaries 

of the Hawaiian Homes Commission Act were those of not less 

than one half part of the races that inhabited the Hawaiian Islands 

previous to 1778. 

Since that time, the people of Hawaii have been going back down 

the dark path toward racial supremacy and separatism. Today, the 

46

1 Aloha for All, is a multi-ethnic group of men and women, all residents, taxpayers and property owners in Hawaii. We believe that Aloha is for everyone; every citizen is entitled to the 

equal protection of the laws without regard to her or his ancestry. 

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

and http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html or email 

hwburgess@hawaii.rr.com.

control of the State of Hawaii is not in the people. Sovereignty of 

the people has been eroding, and today, because as we have seen 

from the Broken Trust article recently and the book that was recently published, the book by several distinguished citizens of Hawaiian ancestry, including Sam King, the senior Federal judge, and 

the other distinguished Hawaiian people who wrote that Broken 

Trust article, the government of the State of Hawaii has been compromised. The separation of powers has been erased in Hawaii. It 

is not the people who rule. 

But now the Akaka bill would polish it off. It would be the end 

of Hawaii as being governed by the people of Hawaii, and it would 

reimpose the dark rule that existed before and the dark rule that 

has existed everywhere in the world in which racial governments 

have held the rule. 

Hawaiians don’t need it. The census 2000 showed, and an even 

more recent survey last year showed, and particularly in the example of California, where people of Hawaiian ancestry, that is the 

largest population of Hawaiians outside of the State of Hawaii, 

with 60,000 at that time and slightly more estimated now. It happens that in the recent survey by the census, that the sample of 

people of Hawaiian ancestry happened to be almost exactly similar 

to the age of the sample population of the entire State of California. 

The demographics showed that Hawaiians are fully capable without governmental assistance, without the Akaka bill, of succeeding 

in free enterprise under the regime of equality, because their family incomes and their household incomes exceeded that of the median population of California, and the ages were similar. 

The people of Hawaii don’t want the Akaka bill. The vote that 

was taken in the 1959 plebiscite was 94 percent in favor of statehood. That means that at least two our of three of every Native Hawaiian that voted in 1959 said yes for statehood. They said yes for 

the State boundaries. In the two more recent comprehensive polls, 

the answers were by all the people of Hawaii, including Native Hawaiians, the answers were two to one no to the question of, do you 

want Congress to pass the Akaka bill. 

With all due respect to our distinguished Senators, I would respectfully submit that the best system for Hawaiians and for all 

the rest of us is one in which like, as in sports, everyone plays the 

game by the same rules. I ask you to resoundingly and finally and 

firmly say no to this bill. 

[The prepared statement of Mr. Burgess follows:]

PREPARED STATEMENT OF H. WILLIAM BURGESS, ALOHA FOR ALL 1

Aloha and thank you for inviting me to testify about this bill which would brush 

aside core underpinnings of the United States itself. 

Two years and three months ago, Sen. Inouye, in his remarks on introduction of 

the then-version of the Akaka bill (S. 147) at 151 Congressional Record 450 (Senate, 

47

Tuesday, January 25, 2005) conceded that federal Indian law does not provide the 

authority for Congress to create a Native Hawaiian governing entity.

‘‘Because the Native Hawaiian government is not an Indian tribe, the body of Federal Indian law that would otherwise customarily apply when the United States extends Federal recognition to an Indian tribal group does not apply.’’

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

law provides for the respective governmental authorities of the state governments 

and Indian tribal governments simply don’t apply in Hawaii.’’

There being no tribe, the Constitution applies. The Akaka bill stumbles over the 

Constitution virtually every step it takes.

• As soon as the bill is enacted, a privileged class would be created in America.

§ § 2(3) & (22)(D) and § § 3(1) & (8) would ‘‘find’’ a ‘‘special political and legal relationship’’ between the United States and anyone with at least one ancestor 

indigenous to lands now part of the U.S. that ‘‘arises out of their status as aboriginal, indigenous, native people of the United States.’’ Creation of a hereditary aristocracy with a special legal and political relationship with the United 

States is forbidden by the Anti-Titles of Nobility clause of the Constitution.

This ‘‘sleeper’’ provision would also have profound international and domestic consequences for the United States. For over 20 years, a draft Declaration of Indigenous 

Rights has circulated in the United Nations. The U.S. and other major nations have 

opposed it because it challenges the current global system of states; is ‘‘inconsistent 

with international law’’; ignores reality by appearing to require recognition to lands 

now lawfully owned by other citizens.’’ In November 2006, a subsidiary body of the 

U.N. General Assembly rejected the draft declaration proposing more time for further review. Enactment of the Akaka bill would undo 20 years of careful diplomatic 

protection of property rights of American citizens abroad and at home.

• Also immediately upon enactment, superior political rights are granted to Native Hawaiians, defined by ancestry: § 7(a) The U.S. is deemed to have recognized the right of Native Hawaiians to form their own new government and to 

adopt its organic governing documents. No one else in the United States has 

that right. This creates a hereditary aristocracy in violation of Article I, Sec. 

9, U.S. Const. ‘‘No Title of Nobility shall be granted by the United States.’’

• Also, under § 8(a) upon enactment, the delegation by the U.S. of authority to 

the State of Hawaii to ‘‘address the conditions of the indigenous, native people 

of Hawaii’’ in the Admission Act ‘‘is reaffirmed.’’ This delegation to the State 

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

seem to violate the prohibition against hereditary aristocracy. The Constitution 

forbids the United States from granting titles of nobility itself and also precludes the United States from authorizing states to bestow hereditary privilege.

• § 7(b)(2)(A)&(B) Requires the Secretary of the DOI to appoint a commission of 

9 members who ‘‘shall demonstrate... not less than 10 years of experience 

in Native Hawaiian genealogy; and... ability to read and translate English 

documents written in the Hawaiian language,’’ This thinly disguised intent to 

restrict the commission to Native Hawaiians would likely violate the Equal Protection clause of the Fifth Amendment, among other laws, and would require 

the Secretary to violate his oath to uphold the Constitution.

• § 7(c)(1)(E) & (F) require the Commission to prepare a roll of adult Native Hawaiians and the Secretary to publish the racially restricted roll in the Federal 

Register and thereafter update it. Since the purpose of the roll is to deny or 

abridge on account of race the right of citizens of the United States to vote, requiring the Secretary to publish it in the Federal Register would cause the Secretary to violate the Fifteenth Amendment and other laws.

• § 7(c)(2) Persons on the roll may develop the criteria and structure of an Interim 

Governing Council and elect members from the roll to that Council. Racial restrictions on electors and upon candidates both violate the Fifteenth Amendment 

and the Voting Rights Act.

• § 7(c)(2)(B)(iii)(I) The Council may conduct a referendum among those on the 

roll to determine the proposed elements of the organic governing documents of 

the Native Hawaiian governing entity. Racial restrictions on persons allowed to 

vote in the referendum would violate the 15th Amendment and the Voting Rights 

Act.

• § 7(c)(2)(B)(iii)(IV) Based on the referendum, the Council may develop proposed 

organic documents and hold elections by persons on the roll to ratify them. This 

would be the third racially restricted election and third violation of the 15th 

Amendment and the Voting Rights Act.

48

• § 7(c)(4)(A) Requires the Secretary to certify that the organic governing documents comply with 7 listed requirements. Use of the roll to make the certification would violate the Equal Protection clause of the Fifth Amendment, 

among other laws, and would, again, require the Secretary to violate his oath 

to uphold the Constitution.

• § 7(c)(5) Once the Secretary issues the certification, the Council may hold elections of the officers of the new government. (If these elections restrict the right 

to vote based on race, as seems very likely) they would violate the 15th Amendment and the Voting Rights Act.)

• § 7(c)(6) Upon the election of the officers, the U.S., without any further action 

of Congress or the Executive branch, ‘‘reaffirms the political and legal relationship between the U.S. and the Native Hawaiian governing entity’’ and recognizes the Native Hawaiian governing body as the ‘‘representative governing 

body of the Native Hawaiian people.’’ This would violate the Equal Protection 

clause of the 5th and 14th Amendments by giving one racial group political 

power and status and their own sovereign government. These special relationships with the United States are denied to any other citizens.

• § 8(b) The 3 governments may then negotiate an agreement for:

transfer of lands, natural resources & other assets; and delegation of governmental power & authority to the new government; and exercise of civil & criminal jurisdiction by the new government; and ‘‘residual responsibilities’’ of the 

U.S. & State of Hawaii to the new government.

This carte blanche grant of authority to officials of the State and Federal governments to agree to give away public lands, natural resources and other assets to the 

new government, without receiving anything in return, is beyond all existing constitutional limitations on the power of the Federal and State of Hawaii executive 

branches. Even more extreme is the authority to surrender the sovereignty and jurisdiction of the State of Hawaii over some or all of the lands and surrounding waters 

of some or all of the islands of the State of Hawaii and over some or all of the people 

of Hawaii. Likewise, the general power to commit the Federal and State governments to ‘‘residual responsibilities’’ to the new Native Hawaiian government.

• § 8(b)(2) The 3 governments may, but are not required to, submit to Congress 

and to the Hawaii State Governor and legislature, amendments to federal and 

state laws that will enable implementation of the agreement. Treaties with foreign governments require the approval of 2⁄3 of the Senate. Constitutional 

amendments require the consent of the citizens. But the Akaka bill does not require the consent of the citizens of Hawaii or of Congress or of the State of Hawaii legislature to the terms of the agreement. Under the bill, the only mention 

is that the parties may recommend amendments to implement the terms they 

have agreed to.

Given the dynamics at the bargaining table created by the bill: where the State 

officials are driven by the same urge they now exhibit, to curry favor with what they 

view as the ‘‘swing’’ vote; and Federal officials are perhaps constrained with a similar inclination; and the new Native Hawaiian government officials have the duty to 

their constituents to demand the maximum; it is not likely that the agreement 

reached will be moderate or that any review by Congress or the Hawaii legislature 

will be sought if it can be avoided. More likely is that the State will proceed under 

the authority of the Akaka bill to promptly implement whatever deal has been 

made. 

The myth of past injustices and economic deprivations. Contrary to the claims of 

the bill supporters, the U.S. took no lands from Hawaiians at the time of the 1893 

revolution or the 1898 Annexation (or at any other time) and it did not deprive them 

of sovereignty. As part of the Annexation Act, the U.S. provided compensation by 

assuming the debts of about $4 million which had been incurred by the Kingdom. 

The lands ceded to the U.S. were government lands under the Kingdom held for the 

benefit of all citizens without regard to race. They still are. Private land titles were 

unaffected by the overthrow or annexation. Upon annexation, ordinary Hawaiians 

became full citizens of the U.S. with more freedom, security, opportunity for prosperity and sovereignty than they ever had under the Kingdom. 

The political and economic power of Hawaiians increased dramatically once Hawaii became a Territory. University of Hawaii Political Science Professor Robert 

Stauffer wrote: 

It was a marvelous time to be Hawaiian. They flexed their muscle in the first territorial elections in 1900, electing their own third-party candidates over the haole 

Democrats and Republicans... The governor-controlled bureaucracy also opened 

up to Hawaiians once they began to vote Republican. 

49

* The information referred to has been retained in Committee files.

By the 1920s and 1930s, Hawaiians had gained a position of political power, office 

and influence never before—nor since—held by a native people in the United States. 

Hawaiians were local judges, attorneys, board and commission members, and 

nearly all of the civil service. With 70 percent of the electorate—but denied the vote 

under federal law—the Japanese found themselves utterly shut out. Even by the 

late 1930s, they comprised only just over 1 percent of the civil service. 

This was ‘‘democracy’’ in a classic sense: the spoils going to the electoral victors.

***

Higher-paying professions were often barred to the disenfranchised Asian Americans. Haoles or Hawaiians got these. The lower ethnic classes (Chinese, Japanese 

and later the Filipinos) dominated the lower-paying professions. 

But even here an ethnic-wage system prevailed. Doing the same work, a Hawaiian got paid more per hour than a Portuguese, a Chinese, a Japanese or a Filipino—

and each of them, in turn, got paid more than the ethnic group below them.

Robert Stauffer, ‘‘Real Politics’’, Honolulu Weekly, October 19, 1994 at page 4.

The alliance between Hawaiians, with a clear majority of voters through the 1922 

election, and more than any other group until 1938, and the Republican party is 

described in more depth in Fuchs, Hawaii Pono: A Social History, Harcourt, Brace 

& World, Inc., 1961, at 158–161. 

Hawaiians prosper without ‘‘entitlements’’ or the Akaka bill 

The 2005 American Community Survey (ACS) for California, recently released by 

the U.S. Census Bureau, confirms Native Hawaiians’ ability to prosper without special government programs. The estimated 65,000 Native Hawaiian residents of California, with no Office of Hawaiian Affairs or Hawaiian Homes or other such racebased entitlements, enjoyed higher median household ($55,610) and family ($62,019) 

incomes, relative to the total California population ($53,629 and $61,476 respectively) despite having smaller median household and family sizes. California is particularly appropriate for comparing earning power, because California has the greatest Native Hawaiian population outside of Hawaii; and it happens that the median 

age of Native Hawaiians residing in California (33.7 years) is almost identical to 

that of the general population of California (33.4 years). 

The fact that Native Hawaiians are quite capable of making it on their own was 

suggested by Census 2000 which showed the then-60,000 Native Hawaiian residents 

of California enjoyed comparable relative median household and family incomes despite their 5 year younger median age. 

See Jere Krischel, Census: Native Hawaiians Do Better When Treated Equally,

CERA Journal Special Akaka Bill Edition included in our packets for Committee 

members. * 

Hawaiians today are no different, in any constitutionally significant way, from 

any other ethnic group in Hawaii’s multi-ethnic, intermarried, integrated society. 

Like all the rest of us, some do well, some don’t and most are somewhere in between. 

The people of Hawaii don’t want the Akaka bill 

Grassroot Institute of Hawaii commissioned two comprehensive automated surveys of every household in the telephone universe of the State of Hawaii, one in July 

2005 and the second in May 2006. Of the 20,426 live answers to the question, two 

to one consistently answered ‘‘No’’ when asked, ‘‘Do you want Congress to pass the 

Akaka bill? ’’

In 1959, in the Hawaii statehood plebiscite, over 94 percent voted ‘‘Yes’’ for Statehood. 

Racial Tensions are simmering in Hawaii’s melting pot 

So said the headline on the first page of USA Today 3/7/07 describing the attack 

Feb. 19th 2007 in the parking lot of the Waikele mall on Oahu, when a Hawaiian 

family beat a young soldier and his wife unconscious while their three year old son 

sat in the back seat of their car. The attack, ‘‘unusual for its brutality,’’ sparked impassioned public debate. 

Tenured University of Hawaii Professor Haunani Kay Trask’s picture is displayed 

in the USA today article and the caption quotes her, ‘‘Secession? God I would love 

it. I hate the United States of America.’’

The USA Today article and related links may be found at http://tinyurl.com/

2jle2e. See also, The Gathering Storm, Chapter 1 of Hawaiian Apartheid: Racial 

50

Separatism and Ethnic Nationalism in the Aloha State by Kenneth R. Conklin, 

Ph.D. http://tinyurl.com/2f7p8b.

The brutality at Waikele mall is a flashing red light. Over 1 million American citizens in Hawaii are under siege by what can fairly be called an evil empire dedicated 

to Native Hawaiian Supremacy. 

Red shirted protesters march often and anti-American signs are regularly posted 

along King Street on the Grounds of Iolani Palace. Our Governor wears the red protest shirts and tells them she supports their cause. Last August at a statehood day 

celebration at Iolani Palace, thugs with bull horns in the faces of the high school 

band members there to play patriotic music, drove them away. 

Passage of the Akaka bill would encourage the Hawaiian Supremacists. Even if 

the bill is declared unconstitutional after a year or two or more of litigation, it may 

well be too late to put the Aloha State back together again. 

A firm rejection of the Akaka bill by this Committee would reassure the people 

of Hawaii that racial supremacy and separatism are not acceptable. That, in the 

eyes of government, there is only one race here. It is American. 

Mahalo.

Senator AKAKA. Thank you, Mr. Burgess. 

At this time, I would like to ask for the testimony of Viet Dinh. 

Before you begin, I am going to ask Senator Inouye to take the 

Chair for a few minutes. Thank you. 

Senator INOUYE. [Presiding.] Professor Dinh? 

STATEMENT OF VIET D. DINH, PROFESSOR OF LAW,

GEORGETOWN UNIVERSITY LAW CENTER AND BANCROFT 

ASSOCIATES, PLLC 

Mr. DINH. Thank you very much, Mr. Chairman and members of 

the Committee. Thank you for the opportunity, indeed the honor 

and privilege, to be here today. 

I would note that, as the Chairman has noted earlier, Neil 

Katyal, Chris Bartolomucci and I prepared a formal legal opinion 

on the question before us today, and submitted it to the State of 

Hawaii and the Office of Hawaiian Affairs earlier this year. Our 

joint opinion forms much of the basis for my testimony here today. 

Like the Native American tribes that once covered the continental United States, Native Hawaiians were a sovereign people 

for hundreds of years, until a U.S. military-aided uprising overthrew the Hawaiian monarchy in 1893, and a subsequent government acceded to U.S. annexation. 

A century later, as so many members of this Committee have 

noted, in 1993 Congress formally apologized to the Hawaiian people for U.S. involvement in this regime change. 

S. 310, the Native Hawaiian Government Reorganization Act of 

2007, would establish a commission to certify a roll of Native Hawaiians willing to participate in the reorganization of the Native 

Hawaiian Government Entity. Those Native Hawaiians would set 

up an interim governing council which in turn would hold elections 

and referenda among Native Hawaiians to draw up the governing 

documents and elect officers for their native government. That entity, eventually, would be recognized by the United States as a domestic dependent sovereign government, similar to the government 

of an Indian tribe. 

Mr. Chairman, based on the constitutional text and judicial 

precedent that we have studied, I firmly believe that the Supreme 

Court would uphold the Congressional authority under the Constitution to enact S. 310 and recognize a Native Hawaiian government entity as a dependent sovereign government within the 

51

United States. In other words, to treat Native Hawaiians just as 

Congress treats continental natives and Alaska Natives. 

First, there is little question that Congress has the power to recognize and to restore the sovereignty of Native American tribes. 

The Supreme Court has acknowledged Congress’ ‘‘plenary and exclusive power,’’ power that is inherent in the Constitution and explicit in the Indian Commerce Clause and the Treaty Clause of our 

Constitution. More importantly, Congress has used that power to 

restore the relationship with tribal governments that were previously terminated by the United States. 

For example, in 1954, Congress terminated by legislation the Menominee Tribe in Wisconsin. Two decades later, in 1973, Congress 

reversed course and enacted a restoration in the Menominee Restoration Act, restoring the Federal relationship with the tribe and 

assisting in its reorganization. This is the process that the court 

cited with approval in the United States v. Lara case that General 

Bennett has cited earlier. The bill before Congress is patterned 

after the Menominee Restoration Act and would do for Native Hawaiians exactly that which Congress did for the Menominees in 

1973. 

Second, Congress has the power to treat Native Hawaiians just 

as it treats other Native Americans. This is because Congress’ decision to treat a group of people as a native group and to use its 

broad Indian affairs powers to pass legislation regarding that 

group, is a political decision, one the courts are not likely to second 

guess. Indeed, the Supreme Court has said that so long as 

Congress’s decision is not ‘‘arbitrary,’’ the courts have no further 

say in the matter. 

S. 310 passes that test. Congress has long considered, for example, Alaska Natives to be Native Americans and recognized Native 

Alaskan governing bodies even though Alaska Natives differ from 

Native Americans in the continent historically and culturally. The 

Supreme Court has not questioned Congress’s power to so treat the 

Alaska Natives. If Congress may treat Alaska Natives as an dependent sovereign people, it follows that Congress may do the same 

for Native Hawaiians. 

It seems to me that the principal constitutional objection to S. 

310, that it impermissibly classifies on the basis of race, fails fundamentally to recognize that congressional legislation dealing with 

indigenous groups is a political, not racial, decision, and therefore 

is neither discriminatory nor unconstitutional. Rice v. Cayetano, of 

course, specifically 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.’’

On those specific questions, these questions that Congress must 

grapple with in enacting S. 310, the court has spoken clearly in 

other contexts. For example, in United States v. Antelope, 430, U.S. 

645, a case decided in 1977, and I quote here at length: ‘‘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 supVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 S:\DOCS\35139.TXT JACK PsN: JACKF
52

ported by the ensuing history of the Federal Government’s relations with Indians.’’

Mr. Katsas has pointed to Justices Breyer and Souter’s concurring opinion, casting doubt as to whether or not the class of people 

at issue in Rice v. Cayetano would legitimately constitute under our 

Constitution an Indian tribe. General Bennett has pointed out one 

way to distinguish that analysis, given the fact that the Act here 

only establishes the process and the membership of the tribe is ultimately to be determined by the Native Hawaiians themselves. 

However, I would like to point out further that at issue in Rice 

v. Cayetano is a completely different class of people, and the specific quote that Mr. Katsas and others have pointed to as casting 

doubt on that broad class of people as not legitimately constituting 

a tribe, differs significantly from the definition of Native Hawaiians 

under Section 310 of this legislation. 

For example, and here allow me again to read the class that Justice Breyer and Justice Souter objected to: ‘‘But the statute does 

not limit the electorate to Native Hawaiians. Rather, it adds to approximately 80,000 Hawaiians, about 130,000 additional Hawaiians, defined as including anyone with one ancestor who lived in 

Hawaii prior to 1778, thereby including individuals who are less 

than 1/50th original Hawaiian, assuming nine generations since 

1778 and the present. 

That was the class of people that Justice Breyer and Justice 

Souter expressed doubt that could constitute an Indian tribe. If you 

read carefully Section 310 of the legislation at issue, S. 310 defines 

the class of Native Hawaiians as those persons who are lineally descendant from Native Hawaiians in existence at the time of 1873. 

So it is a much more significantly limited class and one that traces 

direct legal descendants from the Native Hawaiian tribes directly. 

So I think that on its own facts, Justice Breyer’s and Justice 

Souter’s concurrence and objections thereto would not apply. Given 

these facts, one does not know how they would vote in this regard. 

One other point that has been made that I want to address here 

very briefly is the continuity aspects of Federal recognition of sovereignty. Aside from the legal point, which I will address in a moment, it strikes me as supreme and somewhat tragic irony that the 

actions of the United States military, and by extrapolation the 

United States Government, in dispossessing a person of their sovereignty and culture and self-determination, would then become 

the basis to deprive the United States Government of the authority 

to restore that sovereignty and self-determination. 

The D.C. Circuit has a quite famous doctrine called the Chutzpa 

doctrine, that is, you kill your father and mother and beg leniency 

for being an orphan. It seems to me that it is a tragic irony that 

the argument that there has not been a continuous self-representing people and sovereignty, when we have dispossessed by 

our own action those very characteristics, is now being used in 

order to argue that Congress does not have the authority to restore 

them. 

Aside from that, as a legal matter, it is of very little purchase. 

I have already recounted the history of the Menominees and the 

courts have upheld that restoration power in Congress. More importantly in a case called United States v. John, the court faced 

53

this question precisely with respect to the Choctaw Indians originally of Mississippi. After the Congress failed to recognize them, 

the Choctaw Indians dispersed throughout the United States and 

only remnants are in Mississippi. The United States Supreme 

Court says clearly that that dispersal does not deprive Congress of 

the ability to treat the Choctaw as sovereign within Mississippi 

and to define their status as Indian Country. 

I think this question without doubt has been decided and therefore is of little constitutional moment. 

Mr. Chairman, members of this Committee and this body will 

undoubtedly debate whether, as a policy matter, Congress should 

recognize Native Hawaiians as a dependent sovereignty and facilitate the reorganization of their government. This is a legitimate 

and important debate, one in which there are many views, but I 

think the Constitution already answers the legal question. Congress has the power to help restore and recognize Native Hawaiian 

sovereignty. 

Thank you very much. 

[The prepared statement of Mr. Dinh follows:]

54

PREPARED STATEMENT OF VIET D. DINH, PROFESSOR OF LAW, GEORGETOWN

UNIVERSITY LAW CENTER AND BANCROFT ASSOCIATES, PLLC


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Senator INOUYE. I thank you very much, sir. 

I have just one question, Mr. Burgess. In your written statement, 

you indicated that this violates Article I, Section 9 of the Constitution. Is that correct? 

Mr. BURGESS. That is the anti-nobility clause of the Constitution. 

Yes, that is correct. 

Senator INOUYE. Does that also suggest that the Statehood Act 

was a violation of that clause? 

Mr. BURGESS. The Statehood Act, Senator Inouye, in Section 4, 

required the new State of Hawaii as a condition of statehood to 

adopt the Hawaiian Homes Commission Act. That, I believe, is unconstitutional. That is the subject of litigation which is now pending. 

Senator INOUYE. Thank you. 

Mr. BURGESS. May I add, Senator, that in the lawsuit in which 

we challenged the constitutionality of the Hawaiian Homes Commission Act, we do not seek to dispossess Native Hawaiians who 

have homesteads. We ask that the court permit the negotiation between the State and the homesteaders, so that they can become 

homeowners, fee simple homeowners of their property, and then 

terminate the Hawaiians Homes Commission, and Native Hawaiians could be treated just like everyone else, have the same joys 

and the same responsibilities of home ownership. 

Senator INOUYE. Thank you. 

Professor Dinh, does this bill, S. 321, suggest that Native Hawaiians are not citizens of the United States? 

Mr. DINH. No, sir, it does not. Indeed, as you cited to Article I, 

Section 9, I had to pull out my Constitution and read it because 

our research has shown that no court, not the Supreme Court or 

any other courts in the United States, have ever held anything unconstitutional under this provision. Let me read that provision. It 

says, ‘‘No title of nobility shall be granted by the United States.’’ 

On its face, this law does no such thing, and that is I think why 

this clause has never been relied upon by any court in order to 

strike down any legislation because the United States simply does 

not engage in the process of making lords or knights or prince potentates. Nothing in this bill offends or upsets that tradition. 


503v38.eps
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Senator INOUYE. Does this bill suggest that upon its passage, Native Hawaiians would not be subjected to the laws of the United 

States? 

Mr. DINH. No, sir, it does not. 

Senator INOUYE. They would be subject to pay taxes, obey the 

laws, to the draft, et cetera? 

Mr. DINH. Yes, sir. 

Senator INOUYE. Do you believe that this is a race-based bill? 

Mr. DINH. No, sir, I do not, for the exact reason that the Supreme Court has never considered legislation dealing with Indian 

affairs to be race-based bills. Sure, it does single out a class, that 

is, the tribe itself, but that in and of itself is a power that is expressly granted in the Constitution under the Indian Commerce 

Clause and the Treaty Clause. The courts have very clearly and 

consistently characterized this as a political decision, not a racebased classification. 

Senator INOUYE. Do Native American Indians lose their citizenship when they leave their reservation? 

Mr. DINH. Absolutely not, Mr. Chairman. 

Senator INOUYE. And you have absolutely no question as to the 

constitutional authority on the part of Congress to enact this bill? 

Mr. DINH. We are very confident in our constitutional analysis, 

based upon the constitutional text and the precedents we have 

studied. Like General Bennett, I am not so confident as to say that 

we are 100 percent confident of anything that the nine members 

of the Supreme Court do, but we are very confident, based upon 

the Constitution and the precedents up to this point that Congress 

has ample authority to enact this legislation. 

Senator INOUYE. Under the Constitution, if this bill is enacted, 

it could also be repealed? 

Mr. DINH. Absolutely, sir. One of the aspects of this bill is that 

it does give those who challenge it and think it to be unconstitutional an immediate basis for standing in order to challenge it in 

Federal court. For example, the Department of Interior and the 

commission it sets up would have to create a roll of Native Hawaiians eligible to vote for the interim governing council. Anybody who 

applied and is excluded from the roll based upon noncompliance 

with statutory criteria has immediate standing to challenge that 

decision. So in that way, this constitutional question will be very 

quickly and favorably resolved in favor of congressional authority. 

Senator INOUYE. Does this bill upon its passage create a separate 

entity? 

Mr. DINH. It does not create a separate entity of Native Hawaiian sovereignty. It creates a commission in order to facilitate the 

process of drafting the organic document. That is a question that 

is very important to note because it does not empower the Department of Interior or the State of Hawaii or any other government 

agency to conduct the polling and the election necessary in order 

to reconstitute the Native Hawaiian Governing Entity. All that it 

does is that it reestablishes the sovereign status of the Native Hawaiians and puts in place a process through which Native Hawaiians who fit the criteria as specified in Section 310 to start the 

process of self-governance. 

93

This, as I noted before, is precisely the process that Congress employed in the 1973 Menominee Restoration Act, which has been 

cited with approval by the United States Supreme Court. 

Senator INOUYE. And in this process, the government of the 

United States and the government of the State of Hawaii would be 

involved? 

Mr. DINH. They would be as part of the three way negotiation 

process that Mr. Chairman and members of the Committee have 

noted. Obviously, nobody is going to pre-judge the results of the negotiation process. 

Senator INOUYE. Do you believe realistically that we would permit separatism? 

Mr. DINH. It would be not only contrary to everything that we 

believe in as Americans, but I think it would be contrary to everything that all of Native Hawaiians believe as Americans and as Native Hawaiians. 

Senator INOUYE. I thank you very much, sir. 

Senator AKAKA. [Presiding]. Thank you very much, Senator 

Inouye. 

Mr. Burgess, the language in the bill is the result of successful 

negotiations between representatives from the Department of Justice and the Administration, the Office of Management and Budget, 

the Hawaii State Attorney General, and the Hawaii congressional 

delegation. 

In your testimony, you mention about the certification commission. This language was modified as introduced and replaced at the 

urging of the Department of Justice. Are you saying that the Department of Justice would approve language that would violate the 

Constitution? 

Mr. BURGESS. Senator Akaka, I understand the Department of 

Justice’s position pretty much as it was expressed by the Attorney 

General here today, and as it was expressed in June of last year 

by the Administration through William Moschella of the Department of Justice, and that is that they strongly oppose the Akaka 

bill, and that they have not signed off on the provisions of the 

Akaka bill. 

I personally, my analysis does not indicate that the questions, 

not only the constitutional questions, but the possibility, for example, of gaming. I don’t think the bill puts those questions to rest. 

I might say that as to the question of whether this bill could lead 

eventually to secession, it is my understanding that you, Senator 

Akaka, actually acknowledged that that is a possible outcome of 

this bill, and that you would leave it to your grandchildren. 

There are many people in Hawaii, I agree with Bill Meheula, 

that it is probably a minority, and I hope so, but they have expressed a desire for independence. I have heard Haunani-Kay 

Trask, a tenured professor at the University of Hawaii, say that, 

‘‘God, I would love to see secession; I hate the United States of 

America.’’ And there is an active and vocal group of Native Hawaiians who want independence. As I understand it, the proponents of 

the bill have gone out of their way to assure those people that this 

Akaka bill is just the first step, and it does not rule out eventual 

secession from the United States. That is what concerns me. 

94

Senator AKAKA. Is General Bennett here? May I ask you, General Bennett, the same question that I asked Mr. Burgess? 

Mr. BENNETT. There is no possibility that this bill could lead to 

secession or anything like that. The Constitution of the United 

States does not provide for secession. There is no nullification process or provisions of the Constitution. The negotiators would not 

have the ability to negotiate anything like that. The bill simply 

provides and makes clear in its provisions that since the recognition afforded the Native Hawaiian Governing Entity is of the precise type and nature afforded the American Indian tribes, that the 

type of limited dependent self-government is limited to that afforded to those Native American tribes. 

Senator AKAKA. Thank you. Thank you very much. 

Professor Dinh, does Congress have the power to treat Native 

Hawaiians just as it treats Native Americans? 

Mr. DINH. Absolutely, sir. 

Senator AKAKA. What is your view as a former head of legal 

counsel in the Department of Justice, and constitutional law professor, is there any Federal law that imposes criteria preventing 

groups seeking Federal recognition from acquiring such recognition 

because of the form of government that indigenous people had? 

Mr. DINH. No, sir, and that is for a very obvious reason, because 

prior to the enactment of our Constitution, the Native Americans 

who inhabited our land had various types of government, be it a 

monarchy in Hawaii to a smaller form of chief-based monarchy, if 

you will, of hereditary chieftains in the United States. Notwithstanding those differences in governmental structures, obviously 

they have become the dependent sovereign entities within the 

United States and Congress has the power under the Treaty 

Clause and the Indian Commerce Clause to establish full relations. 

Senator AKAKA. There was mention of the Lara case here. In 

your written testimony, you mention that the Lara case relates to 

Congress’s authority to deal with Indian tribes. How does this case 

relate to Native Hawaiians, in your opinion? 

Mr. DINH. In a number of ways, Mr. Chairman. Of course, the 

exact question of the Lara case, whether or not there is double 

jeopardy from a Federal prosecution after a tribal prosecution, is 

not at issue before this Committee. But as part of its analysis of 

that ultimate question of double jeopardy, the court has to go 

through a number of steps that are of quite significant relevance. 

First, as General Bennett has pointed out, and I repeat it, the 

court recognized the traditional and unbroken line of cases establishing the whole plenary and exclusive authority of the Congress 

to deal with Indian Affairs. Secondly, it recognizes the unbroken 

line of cases that says absent arbitrary determinations, courts will 

not likely second guess the political determinations of Congress as 

to what constitutes an Indian tribe. 

More significantly, it cited with approval the Menominee restoration process, a termination and restoration process in 1954 and 

1973, upon which this bill is patterned after. Incidentally, while it 

cited with approval that process as evidence of Congress’s power to 

terminate and restore Indian sovereignty, it cited to the Native Hawaiian example with respect to the Hawaiian Homes Act and the 

Admissions Act. 

95

Senator AKAKA. Thank you. 

Senator Inouye, do you have any further questions? 

I want to thank our witnesses on the second panel and also the 

first panel. I am hopeful and confident that our colleagues on this 

Committee will once again support our efforts to extend the Federal policy of self-governance and self-determination to Native Hawaiians. 

Just yesterday, the House Committee on Natural Resources favorably reported the House companion bill, H.R. 505, without 

amendments. 

In closing here, respecting the rights of Native Hawaiians does 

not impede or diminish the rights of non-Native Hawaiians. Hawaii 

is truly an aloha State as its people have demonstrated, that can 

foster an appreciation for culture that does not come at the expense 

of any individual or community. For me, the aloha spirit is something that unifies and brings us together. When we are guided by 

the spirit of compassion and love, we are able to bring about outcomes that benefit all of the people of Hawaii. 

I appreciate the testimony of our witnesses. At this time, I would 

like to let the witnesses know that they can voluntarily supplement 

their written testimony. My colleagues and I may wish to submit 

written questions to you in response to your testimony today. 

For those not present to testify in this hearing, the record will 

open until May 17, 2007. 

Again, I want to thank all of you for being here and responding 

and contributing to this hearing. 

Senator Inouye? 

Senator INOUYE. Mr. Chairman, may I join you in thanking all 

of the witnesses who have participated, not just those who are for 

it, but those who are opposed to it. It has resulted in a fine discussion, which is necessary for legislation. We thank you very much. 

Senator AKAKA. Thank you very much. 

This hearing is adjourned. 

[Whereupon, at 12:10 p.m., the Committee was adjourned.] 

(97)

1Testimony of Frank Fasi, Democratic National Committeeman for Hawaii, before the Senate 

Committee on Interior and Insular Affairs, June 30, 1953. http://www.heritage.org/Research/

LegalIssues/wm1117.cfm. 2 Brief in Opposition to Petition for Writ of Certiorari at p. 18, Rice v Cayetano, 528 US 495 

(2000). 3http://memory.loc.gov/ammem/today/jun02.html.

4http://www.capitol.hawaii.gov/hrscurrent/Vol01lCh0001-0042F/03-ORG/

ORGl0004.HTM. 

APPENDIX

PREPARED STATEMENT OF HON. TOM COBURN, U.S. SENATOR FROM OKLAHOMA

The indigenous peoples of Hawaii have a proud and distinguished history and remain a vibrant part of the State of Hawaii and this nation. Throughout their rich 

history, the people of Hawaii have served as one of the finest examples of the ‘‘melting pot.’’ While we have sometimes fallen short of this ideal as a nation, the people 

of Hawaii have shown how a diverse society can become a single, unique and vibrant culture and economy. 

In the words of Frank Fasi, Democratic National Committeeman for Hawaii in 

1953 testimony before the Senate: ‘‘Hawaii is the furnace that is melting that melting pot. We are the light. We are showing the way to the American people that true 

brotherhood of man can be accomplished. We have the light and we have the goal. 

And we can show the peoples of the world. 1 ’’ E Pluribus Unum—From many, one: that uniquely American concept may have 

it roots in Philadelphia and points eastward, but it was given renewed meaning 

when Hawaii entered the Union. 

To the casual observer, the bill before the Committee today—the Native Hawaiian 

Government Reorganization Act (the Akaka bill)—appears non-controversial; Yet, it 

poses the single greatest risk to ‘‘e pluribus unum’’ that this Congress will face during the 110th. 

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. As a recent at 

1998, the State of Hawaii agreed with this statement. In a brief before the Supreme 

Court, the state argued: ‘‘the tribal concept simply has no place in the context of Hawaiian history. 2 ’’

American Indians weren’t 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. 

We must not overlook the fact that Congress lacks the authority to create governments based on ‘‘indigenous status,’’ and that doing so now creates a precedent for 

other indigenous peoples that existed in parts of the United States. Consider vast 

territories once occupied by Mexico in the Southwest; Consider the vast territory 

gained as a result of the Louisiana Purchase. There are many other examples. The 

Constitution very clearly gives Congress the power to regulate commerce among the 

‘‘Indian tribes.’’ It does not speak to ‘‘indigenous peoples.’’ This bill begins the balkanization of America. 

Proponents must answer this question: if the law allowed for Native Hawaiians 

to seek recognition as a tribe through the established regulatory framework (at the 

Department of Interior) would it qualify? If the answer is yes, we should simply 

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5http://www.hawaiireporter.com/story.aspx?9abaa598-e962-4238-be26-67b473a20aa3.

alter this proposal to allow a Native Hawaiian entity to apply for recognition as a 

tribe. It cannot, because no tribe ever existed and because it fails the basic seven 

step process established to determined tribal status recognition. 

That is the paradox of this legislation: On the one hand, proponents argue that 

Native Hawaiians are eligible for recognition just like Indian tribes; on the other 

hand, they argue that they are not an Indian tribe and must be treated separately 

(creates an Office of Native Hawaiian Affairs within Interior). 

Is this bill good for Native Hawaiians? I have the great privilege of representing 

the members of 38 recognized tribes in Oklahoma. I doubt you will find one that 

appreciates the efficiency or effectiveness of the Department of Interior, yet this bill 

will require significant interaction between the Native Hawaiian and the Department. Consider that Interior is now subject to a multi-billion dollar lawsuit for gross 

mismanagement of trust resources; Consider that Bureau of Indian Affairs schools 

are among the worst in the nation; Consider the grave conditions present at most 

federally run hospitals and clinics for American Indians. 

The bill before us doesn’t even guarantee that Native Hawaiians will be subject 

to Constitutional protections. Instead, it leaves that and many other critical, basic 

issues up to negotiation between the state, federal, and new Native Hawaiian governments. The Bill of Rights—which guarantees our most basic liberties—should 

never be left to negotiation. This bill should make clear that the U.S Constitution 

remains the supreme law of the land. 

Furthermore, it does not preclude the eventual secession of the new government 

from the United States. Consider what Senator Akaka said last year: According to 

Hawaiian press, ‘‘When asked during a National Public Radio interview whether the 

bill ‘could eventually go further, perhaps even leading to outright independence.’ he 

replied, ‘‘That could be. That could be. As far as what’s going to happen at the other 

end, I’m leaving it up to my grandchildren and great-grandchildren. 5 ’’

Despite the very noble intentions of many who support this legislation, I am concerned this is less about obtaining tribal government status or self-determination 

and more about protecting the many federal funding streams for Native Hawaiians, 

which have been called into question in recent litigation. The only way one can 

guarantee these programs in perpetuity is to manufacture tribal status. That is an 

affront to the many tribes in my state who labored to regain their status, and the 

many hundreds around the country who are standing in line seeking recognition. 

My hope is that this bill will never reach the Senate floor. It is bad policy for 

America, and it is bad policy for Native Hawaiians. If we proceed, however, I intend 

to offer dozens of amendments that will minimize many of the potential dangers 

present in the current bill. 

Mr Chairman, I thank you for conducting this important hearing today. I ask that 

my full statement be made part of the record, that I be allowed to submit additional 

documents for submission in the record, and that I have the ability to submit additional questions once I have reviewed today’s testimony. 

PREPARED STATEMENT OF HON. TED STEVENS, U.S. SENATOR FROM ALASKA

Chairman Dorgan, Vice Chairman Thomas, distinguished Members of the Committee, thank you for holding this hearing. I appreciate the opportunity to testify 

in support of S. 310, the Native Hawaiian Government Reorganization Act of 2007. 

As a Senator for Alaska, the decision to support S. 310 is a simple one. Native 

cultures and traditions are an important part of the heritage and history of both 

Alaska and Hawaii. Preserving the rights of Alaska Natives has been my priority 

for more than forty years, and it is my firm belief that Native Hawaiians deserve 

these protections as well. 

As you know, the Constitution and a series of federal laws establish our nation’s 

policy of self-determination and self-governance for Native Americans. In 1971, 

Alaska Natives were granted the same status through the passage of the Alaska 

Native Claims Settlement Act, or ANCSA. Now, more than 100 years after Hawaii 

was annexed by the United States, S. 310 would formally—and finally—expand this 

policy to include Native Hawaiians. 

S. 310 contains three principal elements to help Native Hawaiians achieve legal 

parity with Native Americans and Alaska Natives. The first would establish a process for federal recognition of a Native Hawaiian governing entity, which would be 

authorized to negotiate with the United States and the State of Hawaii. These negotiations would address the unique issues faced by Native Hawaiians—from the 

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transfer of lands to natural resource rights—and help ensure their future wellbeing. 

This Act would also create two bodies dedicated to the best interests of Native 

Hawaiians. A new office focused solely on Native Hawaiian issues would be established in the Department of the Interior. A working group of officials from federal 

agencies with programs affecting Native Hawaiians would also be formed. 

Many agree that governmental reorganization is the best way to improve the position of Native Hawaiians, and my good friends in the Hawaiian delegation have now 

introduced legislation to do so in five consecutive Congresses. 

In the past, this legislation has been endorsed by the Governor of Hawaii, the Hawaii State Legislature, and thousands of individual Hawaiians. The National Congress of American Indians, the Alaska Federation of Natives, the American Bar Association, and dozens more groups and organizations all support its purpose. The 

current version of this bill also satisfies concerns raised by the Department of Justice in 2005. 

Of course, this legislation is not without critics. Several members of Congress, the 

news media, and the general public contend it would create a race-based government. Last year, for example, the Wall Street Journal called this measure ‘‘secessionist, unconstitutional, and un-American.’’

Similar arguments were made during the debate over ANCSA, and they are as 

mistaken today as they were nearly four decades ago. Those opposed to ANCSA 

claimed it would create a state within a state, a movement for secession by that 

state, and ultimately a separate nation within our nation. None of these predictions 

have come true—instead, ANCSA’s clarification of the relationship between the Federal Government and Native communities has empowered them to achieve great 

success. Alaska Native corporations now have thousands of employees and annually 

distribute dividends to their shareholders. Alaska Natives have preserved their culture and identity—but they have also continued to abide by the laws of our land. 

Nothing suggests Native Hawaiians will not do the same. 

The bill being considered today, S. 310, would provide Native Hawaiians with 

many of the same opportunities ANCSA offered to Alaska Natives. Although these 

bills are structured differently, their objectives are the same. S. 310 would create 

a framework to help Native Hawaiians address their unique circumstances, afford 

them greater control over their natural resources and assets, and, in my view, right 

a long-standing wrong. 

Our Federal Government has a responsibility to promote the welfare of all indigenous peoples. To properly fulfill this commitment, we must extend our federal policy 

of self-determination and self-governance to Native Hawaiians. I hope each of you 

will support this Act and join in our efforts to see it signed into law. 

PREPARED STATEMENT OF HON. NEIL ABERCROMBIE, U.S. REPRESENTATIVE FROM

HAWAII

Chairman Dorgan, Vice-Chairman Thomas and Members of the Committee, I 

would like to express my wholehearted support for S. 310, the Native Hawaiian 

Government Reorganization Act of 2007. This legislation has been introduced by 

Senator Daniel Akaka and Senator Daniel Inouye. I, along with my colleague Congresswoman Mazie Hirono, have introduced the companion measure in the House 

of Representatives. 

The purpose of the bill is to provide a process for the reorganization of the Native 

Hawaiian governing entity for the purposes of a federally recognized governmentto-government relationship. The Native Hawaiian Government Reorganization Act 

would provide Native Hawaiians the same right of self-governance and self-determination that are afforded to other indigenous peoples. 

Since Hawaii was annexed as a territory, the United States has treated Native 

Hawaiians in a manner similar to that of American Indians and Alaska Natives. 

This bill would formalize that relationship and establish parity in federal policies 

towards all of our indigenous peoples. 

As a requirement of Hawaii’s admission to the United States in 1959, the State 

of Hawaii was required to take over administration of the Hawaiian Home Lands 

and other former Hawaiian government lands for Native Hawaiians. Since that 

time, the State of Hawaii has administered that trust with the Federal Government 

retaining oversight and the ability to enforce that trust. 

One of the goals of H.R. 505 is to allow Native Hawaiians to take responsibility 

for assets already set aside for them by law—without taking anything away from 

all others who have worked hard and make up the diversity of people who are Hawaii today. 

100

H.R. 505 provides a democratic process for the reorganization of the Native Hawaiian governing entity, including the development of a base roll of the adult members of the Native Hawaiian community and the election of a Native Hawaiian Interim Governing Council charged with developing the organic governing documents 

of the Native Hawaiian governing entity. This governing instrument will be subject 

to the approval of the Secretary of the Interior. 

This bill will also provide a structured process to address the longstanding issues 

resulting from the annexation of Hawaii. This discussion has been avoided for far 

too long because no one has known how to address or deal with the emotions that 

arise when these matters are discussed. There has been no structured process. Instead, there has been fear as to what the discussion would entail, causing people 

to avoid the issues. Such behavior has led to high levels of anger and frustration, 

as well as misunderstandings between Native Hawaiians and non-Native Hawaiians. 

The bill provides a structured process to negotiate and resolve these issues with 

the federal and state governments and will alleviate the growing mistrust, misunderstanding, anger, and frustration about these matters. 

This measure is supported by Hawaii’s Republican Governor, Linda Lingle, Hawaii’s Congressional delegation, and the Hawaii State Legislature. The bill is also 

supported by a number of local and national organizations in Hawaii who have 

passed resolutions in support of this bill. 

Mahalo Chairman Dorgan and Vice-Chairman Thomas for your consideration of 

this legislation. 

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

COMMISSION

Aloha kakou, Chairman Dorgan, Vice Chairman Thomas, 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 strong 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 Hawaiian home lands program 

and its assets were transferred to the State of Hawaii to administer. The United 

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

and 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 35,000 native Hawaiians living in 25 homestead communities throughout the State. Although unique 

and distinct, our communities are an integral part of each state’s economic, social, 

cultural, and political fabric. About one percent of our lands are dedicated to commercial and industrial uses, producing revenues to help sustain our programs. 

Passage of S. 310 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:

• Our housing program benefits the entire state.

Today, the Department of Hawaiian Home Lands is the largest single family 

residential developer in the State of Hawaii. In the past four years our program 

has provided more than 2,250 families a homeownership opportunity and we 

are planning several thousand more over then next four years. Each home we 

build represents one more affordable home in the open market or one less overcrowded home. Homeownership opportunities have also lead us to focus on financial literacy in order to ensure that our beneficiaries will be successful and 

responsible homeowners. 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.

• The Department of Hawaiian Home Lands builds and maintains partnerships that benefit the 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 

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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.

• The Department of Hawaiian Home Lands is becoming a self-sustaining 

economic engine.

Through our general lease program, we rent nonresidential 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.

• 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 one-fifth of our state legislators. Hawaiian communities grow Hawaiian 

leaders who make decisions for all of Hawaii.

• Hawaiian home lands have similar legal authority as proposed under 

S. 310.

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. 310.

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.

Ultimately, I envision our program becoming so successful that we will work ourselves out of a job. I envision a time when we will not need the Department of Hawaiian Home lands, a time when our native people, as defined in the Hawaiian 

Homes Commission Act, will be fully rehabilitated. We will be self-sufficient, selfgoverning native Hawaiians contributing to an island society. The first step toward 

achieving this vision is passage of this legislation. 

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

fabric of Hawaii. It 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. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM COBURN TO

HAUNANI APOLIONA

Question 1. Do you believe that the State of Hawaii will be a more cohesive society after this legislation is enacted? 

Answer. Yes. In 1978, the citizens of Hawaii convened a constitutional convention, 

at which amendments to the Hawaii State Constitution were considered, debated, 

and ultimately approved for adoption. Following the convention, the proposed 

amendments to Hawaii’s constitution were ratified by a majority of the voting citizens of Hawaii. 

Principal amongst the amendments to Hawaii’s State constitution adopted by the 

citizens of Hawaii in 1978 was an amendment to establish the Office of Hawaiian 

Affairs. The stated purpose for establishing the Office of Hawaiian Affairs was to 

provide the indigenous, native people of Hawaii with a means by which to give exVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00105 Fmt 6601 Sfmt 6621 S:\DOCS\35139.TXT JACK PsN: JACKF
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pression to their rights as one of three groups of America’s indigenous, native people 

to self-determination and self-governance. In establishing the Office of Hawaiian Affairs, the citizens of Hawaii sought to address the long-standing injury to the Native 

Hawaiian people that arose out of the illegal overthrow of the Native Hawaiian government. 

Since that time, the State of Hawaii has supported the rights of the indigenous, 

native people of Hawaii through numerous legislative enactments, including legislation to implement the amendment to the State’s constitution establishing the Office 

of Hawaiian Affairs. Three successive Governors of the State of Hawaii have expressed their strong support for Federal legislation that would extend the United 

States’ policy of self-determination and self-governance to the Native Hawaiian people through the formal recognition of a reorganized Native Hawaiian government. 

The State legislature has also repeatedly adopted resolutions of support for such 

Federal legislation. 

In 1993, the United States Congress enacted Public Law 103–150, also known as 

the Apology Resolution, which extended an apology to the Native Hawaiian people 

for the United States’ role in the overthrow of the Native Hawaiian government and 

announced a policy of reconciliation between the United States and the Native Hawaiian people. 

All of these actions, by both State and Federal governments, reflect an effort to 

provide justice to the Native Hawaiian people so that the State of Hawaii might become a more cohesive society.

Question 2. In 1998, the State of Hawaii argued that ‘‘the tribal concept simply 

has no place in the context of Hawaiian history.’’ What has changed since that time? 

Answer. Please refer to the response of the Attorney General of the State of Hawaii to this question.

Question 3. Given that this legislation modified the vote of the Hawaiian people 

in the late 1950s, should the people of Hawaii be given an opportunity to vote in 

a referendum on the new proposal? 

Answer. In 1959, as part of the compact between the United States and the new 

State of Hawaii, the Hawaii Admissions Act provided that the United States would 

transfer lands held in trust by the United States for Native Hawaiians under the 

authority of the Hawaiian Homes Commission Act of 1920 to the State of Hawaii 

provided that the State held those lands in trust for Native Hawaiians. The United 

States retained the authority to enforce against any breach, by the State, of its trust 

responsibility for the Hawaiian homelands. The United States also insisted that any 

amendment to the Hawaiian Homes Commission Act proposed by the State would 

have to be ratified by the U.S. Congress. 

In addition, as a condition of its admission into the Union of States, the United 

States required that the State of Hawaii include the provisions of the Hawaiian 

Homes Commission Act in the State’s Constitution. 

Another provision of the Hawaii Statehood Act of 1959 provided for the return of 

lands previously ceded to the United States, and required that the revenues derived 

from the ceded lands be used for five purposes, one of which is the betterment of 

the conditions of Native Hawaiians. 

As indicated above, in 1978, the citizens of the State of Hawaii adopted amendments to the State’s constitution to establish the Office of Hawaiian Affairs. The 

State Constitution thereafter provided that the Office of Hawaiian Affairs was 

charged with administering the revenues derived from the ceded lands for the betterment of the conditions of Native Hawaiians and such other resources, including 

land, natural resources, and other financial resources that may be transferred to the 

Office of Hawaiian Affairs. 

Upon the Federal recognition of the Native Hawaiian government, S. 310 authorizes the United States, the State of Hawaii and the Native Hawaiian government 

to enter into a process of negotiations to address the transfer of lands, natural resources and financial resources to the Native Hawaiian government. 

It is generally anticipated that among the lands that would be considered for 

transfer to the Native Hawaiian government would be the lands that were set aside 

under Federal law, the Hawaiian Homes Commission Act, that are now held in 

trust by the State of Hawaii for Native Hawaiians. 

In addition, it is also generally anticipated that among the resources that would 

be transferred to the Native Hawaiian government would be the resources that are 

currently administered by the Office of Hawaiian Affairs. 

However, as contemplated by the provisions of S. 310, the transfer of lands and 

resources will require changes in existing Federal and State law, as well as amendments to the Hawaii State Constitution. 

103

Amendments to the Hawaii State Constitution require the approval of the citizens 

of Hawaii. Accordingly, before lands now held in trust for Native Hawaiians by the 

State of Hawaii can be transferred to the Native Hawaiian government, the portion 

of the Hawaii State Constitution that contains the provisions of the Hawaiian 

Homes Commission Act, will have to be amended—through a vote of the eligible voters in the State of Hawaii. 

Likewise, before the resources currently administered by the Office of Hawaiian 

Affairs can be transferred to the Native Hawaiian government, the provisions of the 

Hawaii State Constitution that vest authority in the Office of Hawaiian Affairs to 

administer such resources, will have to amended—and again, those amendments 

will have to be approved by the citizens of Hawaii. 

Thus, while there is no authority in Hawaii State law for statewide referenda, the 

citizens of Hawaii do have to vote and approve any amendments to the State’s constitution—an opportunity that will be afforded to them if lands and resources now 

addressed in the State’s constitution are to be transferred to the Native Hawaiian 

government.

Question 4. If there is no difference between Congress’ power to regulate ‘‘Indian 

tribes’’ and ‘‘indigenous peoples’’ why does this legislation treat Native Hawaiians 

differently from Native Americans by segregation of programs and the creation of 

a new Office of Native Hawaiian Affairs [sic Relations]? 

Answer. The Congress has enacted laws to carry out its political and legal relationship with the indigenous, native people of the United States that are designed 

to address the unique conditions of each of America’s three groups of indigenous, 

native people—American Indians, Alaska Natives and Native Hawaiians. 

As a general proposition, programs and services provided to members of Federally-recognized Indian tribes are carried out through the Bureau of Indian Affairs 

within the U.S. Department of the Interior and the Indian Health Service within 

the U.S. Department of Health and Human Services, and to a lesser extent, through 

other Federal agencies. 

In Alaska, as a function of Congress’ enactment in 1971 of the Alaska Native 

Claims Settlement Act, the United States’ political and legal relationship with Alaska Natives is reflected in the Act’s authorization of Alaska Native regional and village corporations in which Alaska Natives are shareholders. Many Federal programs are administered by non-profit Native corporations that are affiliated with 

the Native regional and village corporations. 

Beginning in 1910, the Congress has enacted over 160 Federal statutes designed 

to address the conditions of Native Hawaiians. In the same manner that the Congress elected to fashion its political and legal relationship with Alaska Natives in 

a different manner than its relationship with Indian tribes, the Congress has provided unique authority for the provision of Federal programs and services to Native 

Hawaiians. 

The authority for the establishment of the Office of native Hawaiian Relations 

contained in S. 310, is—as is stated in the bill—for the purpose of carrying out the 

Federal policy of reconciliation with the Native Hawaiian people that was articulated in the Apology Resolution referenced above, Public Law 103–150.

Question 5. If existing law was modified, and Native Hawaiians were allowed to 

apply for tribal recognition through the established process, would it [sic] (Native 

Hawaiians) qualify for such status? 

Answer. The Congress has repeatedly recognized that Native Hawaiians have a 

political and legal relationship with the United States through the enactment of 

over 160 Federal laws, including the Hawaiian Homes Commission Act, the Hawaii 

Statehood Act, the Native Hawaiian Education Act, the Native Hawaiian Health 

Care Improvement Act, the Native Hawaiian Homelands Recovery Act, and Title 

VIII of the Native American Housing Assistance and Self-Determination Act, to 

name a few. 

As indicated in the response of Hawaii’s Attorney General to this question, we 

agree that Native Hawaiians clearly meet the Federal acknowledgment criteria and 

could qualify for Federal acknowledgment under the existing regulatory criteria.

Question 6. Do you believe that the Bill of Rights, and the essential protections 

it provides, is up for negotiation for any American citizen? 

Answer. The provisions of the United States Constitution apply to all citizens of 

the United States and the citizens of each State. Nothing in S. 310 alters the framework or application of the U.S. Constitution.

Question 7. Can you discuss with this committee all studies that have been completed demonstrating the impact of the new Native Hawaiian governing entity, its 

assumption of all appropriate lands, and any other appropriate factors, on the Hawaiian economy? 

104

Answer. Once the Native Hawaiian government is reorganized and the United 

States extends Federally-recognized status to the Native Hawaiian government, S. 

310 provides for a process of negotiation amongst the United States, the State of 

Hawaii, and the Native Hawaiian government. Until such negotiations take place 

and the parties to the negotiations reach agreement and thereafter propose recommendations to the U.S. Congress and the State of Hawaii for amendments to existing Federal and State laws to implement their agreements, any assessment of 

economic impact would have to be based on conjecture.

Question 8. If the State of Hawaii and the new governing entity are unable to 

reach agreement on measures outlined in the legislation, please describe how potential conflicts will be settled. 

Answer. The provisions of S. 310 provide that any claims against the United 

States or the State of Hawaii are to be addressed through a process of negotiations, 

and S. 310 further provides that such claims are nonjusticiable. As to other matters 

to be addressed by the three governments, it is likely that as part of the negotiations process, the three governments will identify the manner in which potential 

conflicts will be resolved. S. 310 does not confine the three governments to anyone 

means of resolving potential conflicts.

Question 9. Do you believe that the Native Hawaiian entity should receive consideration before the roughly 300 entities currently seeking recognition as a tribe before the Department of the Interior? 

Answer. The Federal Acknowledgment Process does not operate on the basis of 

chronological order. Although they are assigned numbers, petitions are not considered on the basis of when a letter of intent is first filed. Rather, petitions are considered on the basis of when they are complete and deemed ready for active consideration. Some petitions have been pending in the Federal Acknowledgment Process for 

many years and have yet to be deemed either complete or ready for active consideration. 

As stated above, the Federal Acknowledgment Process applies only to Native 

groups within the continental United States, thereby excluding Native Hawaiians.

Question 10. In the question and answer period, Attorney General Bennett mentioned that ‘‘nothing in this Act suggests secession’’. Would you support an explicit 

statement barring future secession efforts? 

Answer. In our view, there is no need for such a statement. Neither the U.S. Constitution nor any Federal law provides authority for secession from the Union of 

States.

Question 11. Similarly, would you support an explicit ban on all gaming activities 

by the new governing entity? 

Answer. The provisions of S. 310 already provide that the Native Hawaiian governing entity shall not conduct gaming in the State of Hawaii or any other state. 

In addition, Hawaii is one of only two states in the Union (the other is Utah) that 

criminally prohibit all forms of gaming. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM COBURN TO

MARK J. BENNETT

Question 1. Do you believe the State of Hawaii would be a more cohesive society 

after this legislation is enacted? 

Answer. Yes. By providing Native Hawaiians with a sense that some measure of 

justice has been attained, the bill would promote harmony between Hawaii’s native 

and non-native populations. Also, non-Native Hawaiians living in Hawaii recognize 

the just and fair nature of recognition.

Question 2. In 1998, the State of Hawaii argued that the ‘‘the tribal concept simply has no place in the context of Hawaiian history.’’ What has changed since that 

time? 

Answer. That reference has repeatedly been taken out of context. It simply meant 

that Native Hawaiians were never organized in the same manner, nor did they possess identical anthropological characteristics, as Native American Indian tribes on 

the Continent. It was never meant to suggest that Native Hawaiians are not ‘‘Indian 

Tribes’’ within the meaning of the Indian Commerce Clause, U.S. Const., Article I, 

Section 8, Clause 3.

Question 3. Given that this legislation modifies the vote of the Hawaiian people 

in the late 1950s, should the people of Hawaii be given an opportunity to vote in 

a referendum on the new proposal? 

Answer. First, this legislation does not in any way modify the vote for Statehood 

by Hawaii’s people in 1959. The vote for statehood was not a vote against eventual 

105

federal recognition of an entity providing limited self-governing authority for Native 

Hawaiians. Second, Congress’s power to recognize native peoples is plenary. In any 

event, in order to amend Hawaii’s Constitution, Hawaii citizens will need to vote, 

and therefore, if this bill leads eventually to the creation of a sovereign entity, and 

the transfer of assets, that will necessitate a change in Hawaii’s Constitution, and

a vote of its people. And third, there is no current provision in Hawaii law for any 

type of referendum on any subject.

Question 4. If there is no difference between Congress’ power to regulate ‘‘Indian 

tribes’’ and ‘‘indigenous peoples’’ why does this legislation treat Native Hawaiians 

differently from Native Americans by segregation of programs and the creation of 

a new Office of Native Hawaiian Affairs? 

Answer. Congress clearly has the power to recognize a Native Hawaiian governing 

entity, like it has the power to recognize Indian tribes. That does not logically mean, 

however, that from the start, Native Hawaiians, who do not currently have official 

recognition, ought to be governed by the exact same recognition process as Native 

Americans. Alaska Natives were not treated exactly the same either, even though 

Congress’s power to recognize them springs from the same authority in the Constitution. It could be that after recognition, and through negotiations, Congress 

could decide that similar structures and interrelationships are appropriate, but 

there is no reason to foreordain or require that.

Question 5. If existing law was modified, and Native Hawaiians were allowed to 

apply for tribal recognition through the established process, would it qualify for such 

status? 

Answer. Current law does not allow Native Hawaiians to apply. If Native Hawaiians were allowed to apply, the result would depend upon how Congress modified 

existing law, but it would be fair to expect that those modifications would be responsive to any unique circumstances of Native Hawaiians, and thus the answer would 

be ‘‘yes.’’

But Native Hawaiians do satisfy the most relevant existing criteria, including: (a) 

the group has been identified from historical times to the present, on a substantially 

continuous basis, as Indian—that is, aboriginal inhabitants; (b) a predominant portion of the petitioning group comprises a distinct community and has existed as a 

community from historical times until the present; (c) the group has maintained political influence or other authority over its members as an autonomous entity from 

historical times until the present; (d) the group has lists of members demonstrating 

their descent from a tribe that existed historically; and (e) most of the members are 

not members of any other acknowledged Indian tribe. To the extent Native Hawaiians may meet certain criteria less strongly, that is only because the United States’s 

demolition of their sovereignty was more complete and unjust.

Question 6. Do you believe that the Bill of Rights, and the essential protections 

it provides, is up for negotiation for any American citizen? 

Answer. No, and this bill does nothing that is contrary to or inconsistent with 

that answer.

Question 7. How does the recognition of Native Hawaiians impact potential claims 

by other ‘‘indigenous groups,’’ such at those in the Southwest? 

Answer. It doesn’t affect such ‘‘potential’’ claims at all. Native Hawaiians, like 

American Indians and Native Alaskans, were the aboriginal inhabitants of a geographic area they occupied at the time of the first Western contact. Those within 

the continental United States, who also meet that definition, are Indians. Likely the 

other ‘‘indigenous’’ groups mentioned do not meet that definition.

Question 8. Can you discuss with this committee all studies that have been completed demonstrating the impact of the new Native Hawaiian governing entity, its 

assumption of all appropriate lands, and any other appropriate factors, on the Hawaiian economy? 

Answer. Since there have been no negotiations yet, and no product of such negotiations, it is premature to conduct such a study. I note, however, that Hawaii’s 

newspapers, banks, and many businesses fully support recognition for Native Hawaiians, because it is fair, just, and long overdue.

Question 9. If the State of Hawaii and the new governing entity are unable to 

reach agreement on measures outlined in the legislation, please describe how potential conflicts will be settled. 

Answer. The status quo is maintained. There is no mandate for agreement.

Question 10. How do ‘‘indigenous sovereign peoples’’ compare to Indian tribes, as 

defined in the U.S. Constitution? If similar, please describe how the new Native Hawaiian governing entity will operate in a manner consistent with established tribal 

governments, and how it will interact with the Department of Interior. 

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Answer. The question is unclear. Congress has the right to recognize Native Hawaiians, pursuant to its power under the Indian Commerce Clause. The governing 

entity will, at first, interact with the Department of the Interior, as specified in the 

bill. After negotiations, Congress will specify the precise method of interaction.

Question 11. Do you believe the Native Hawaiian entity should receive consideration before the roughly 300 entities currently seeking recognition as a tribe before 

the Department of Interior? 

Answer. Hundreds of tribes on the continent are currently recognized. No Native 

Hawaiian governing entity is. We believe it is fair and just that Congress now afford 

the recognition this bill provides. In any event, this bill does not interfere in any 

manner with the process for recognition those other entities are currently pursuing.

Question 12. In the question and answer period, Attorney General Bennett mentioned that ‘‘nothing in this Act suggests secession.’’ Would you support an explicit 

statement barring future secession efforts? 

Answer. I would have no objection, although it is not an Act of Congress that does 

and would bar secession—it is the Constitution of the United States. No secession 

of any part of the United States is legally possible without an amendment to the 

United States Constitution.

Question 13. Similarly, would you support an explicit ban on all gaming activities 

by the new governing entity? For example, ‘‘the new Native Hawaiian governing entity shall not engage in any form of gaming.’’

Answer. The bill already has such a ban, using language suggested by the Department of Justice, as the bill explicitly bars using any federal law as authority for 

gambling. However, I would not object to the proposed language. I am against any 

legalized gambling in Hawaii. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM COBURN TO

H. WILLIAM BURGESS

Question 1. Do you believe the State of Hawaii would be a more cohesive society 

after this legislation is enacted? 

Answer. No. I believe the opposite would be more likely. The Akaka bill (S. 310) 

defines ‘‘Native Hawaiian’’ as anyone with at least one ancestor indigenous to Hawaii, essentially the same definition the Supreme Court in Rice v. Cayetano, 528 

U.S. 495, 514–516 (2000) held to be a racial classification because it uses ancestry 

as a proxy for race. The bill would give Native Hawaiians political power superior 

to that of all other citizens (i.e., the right to create their own separate sovereign government and still retain all their rights as citizens of the U.S. and the State of Hawaii). 

Racial distinctions are especially ‘‘odious to a free people,’’ Rice 528 U.S. at 517 

where they undermine the democratic institutions of a free people by instigating racial partisanship. This was the fundamental evil that the Rice Court detected in Hawaii’s law: ‘‘using racial classifications’’ that are ‘‘corruptive of the whole legal order’’ 

of democracy because they make ‘‘the law itself... the instrument for generating’’ 

racial ‘‘prejudice and hostility.’’ Rice, 528 U.S. at 517. 

It ‘‘is altogether antithetical to our system of representative democracy’’ to create 

a governmental structure ‘‘solely to effectuate the perceived common interests of one 

racial group’’ and to assign officials the ‘‘primary obligation . . . to represent only 

members of that group.’’ Shaw v. Reno, 509 U.S. 630, 648 (1983). Shaw quoted Justice Douglas: 

When racial or religious lines are drawn by the State, the multiracial... communities that our Constitution seeks to weld together as one become 

separatist; antagonisms that relate to race... rather than to political issues are 

generated; communities seek not the best representative but the best 

racial... partisan. Since that system is at war with the democratic ideal, it 

should find no footing here. 

Wright v. Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, dissenting). 

In Shaw, the racial partisanship was fostered indirectly by gerrymandering legislative districts. By contrast, as in Rice, the ‘‘structure’’ in the Akaka bill ‘‘is neither 

subtle nor indirect;’’ The Akaka bill would specifically sponsor the creation of a new 

sovereign government by ‘‘persons of the defined ancestry and no others.’’ Rice, 528 

U.S. at 514. 

To advance ‘‘the perceived common interests of one racial group,’’ Shaw, 509 U.S. 

at 648, the Akaka bill vests public officials with authority to give away public funds 

and public lands. This cannot stand: ‘‘Simple justice requires that public funds, to 

which all taxpayers of all races contribute, not be spent in any fashion which enVerDate 0ct 09 2002 09:03 Mar 10, 2008 Jkt 035139 PO 00000 Frm 00110 Fmt 6601 Sfmt 6621 S:\DOCS\35139.TXT JACK PsN: JACKF
107

courages, entrenches, subsidizes, or results in racial discrimination.’’ Lau v. Nichols, 

414 U.S. 563, 569 (1974) (quoting Senator Humphrey during the floor debate on 

Title VI of the Civil Rights Act of 1964, a provision that is coextensive with the 

Equal Protection Clause, Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001)). 

The government is even forbidden to give money to private parties ‘‘if that aid 

has a significant tendency to facilitate, reinforce and support private discrimination.’’ Norwood v. Harrison, 413 U.S. 455, 466 (1973). Norwood instructed the District Court to enjoin state subsidies for private schools that advocated the ‘‘private 

belief that segregation is desirable’’ and that ‘‘communicated’’ racial discrimination 

as ‘‘an essential part of the educational message.’’ Id. at 469. A fortiori, federal or 

state agencies, even with the acquiescence of their legislatures, cannot institutionalize racial classifications that are ‘‘odious to a free people’’ and ‘‘corruptive’’ of 

democracy. Rice, 528 U.S. at 517.

Question 2. In 1998, the State of Hawaii argued that ‘‘the tribal concept simply 

has no place in the context of Hawaiian history.’’ What has changed since that time? 

Answer. Amid many changes in our lives since 1998, one thing has stayed the 

same: There is no tribe or governing entity of any kind presiding over a separate 

community of the Native Hawaiian people as defined in the Akaka bill (any person 

anywhere in world who has at least one ancestor indigenous to Hawaii). Senator 

Daniel K. Inouye acknowledged this on January 25, 2005 on the floor of the Senate 

(151 Congressional Record 450). 

‘‘Because the Native Hawaiian government is not an Indian tribe, the body of Federal Indian law that would otherwise customarily apply when the United States extends Federal recognition to an Indian tribal group does not apply.’’

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

law provides for the respective governmental authorities of the state governments 

and Indian tribal governments simply don’t apply in Hawaii.’’

Question 3. Given that this legislation modifies the vote of the Hawaiian people 

in the late 1950s, should the people of Hawaii be given an opportunity to vote in 

a referendum on the new proposal? 

Answer. Yes. The Akaka bill would usurp the power of the people of Hawaii to 

govern the entire State of Hawaii as promised by Congress in the 1959 Admission 

Act. In 1959 Congress proposed, subject to ‘‘adoption or rejection’’ by the voters of 

the Territory of Hawaii, that Hawaii ‘‘shall be immediately admitted into the Union’’ 

and that ‘‘boundaries of the State shall be as prescribed.’’ ‘‘The State of Hawaii shall 

consist of all the [major] islands, together with their appurtenant reef and territorial 

waters.’’ ‘‘The Constitution of the State of Hawaii shall always be republican in form 

and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.’’

The voters decisively accepted: 94.3 percent ‘‘Yes’’ for Statehood and 94.5 percent 

‘‘Yes’’ for the State boundaries. 

Yet the Akaka bill would authorize negotiations unlimited in scope or duration 

to break up and giveaway lands, natural resources and other assets, governmental 

power and authority and civil and criminal jurisdiction. The avowed purpose of the 

promoters of the bill is to remove vast lands in Hawaii from the jurisdiction of the 

United States Constitution and to create an unprecedented sovereign empire ruled 

by a new hereditary elite and repugnant to the highest aspirations of American democracy. 

At the very least, the Akaka bill must be amended to require:

Prior consent to the process by the voters of Hawaii before any ‘‘recognition’’ or 

other provision of the bill takes effect; and

If the electorate approves the process, limit the negotiations both in scope and 

duration, and, if any transfer is to be made to the new entity the agreement 

must include a final global settlement of all claims and be subject to ratification 

by referendum of the entire electorate of the State of Hawaii.

Question 4. If there is no difference between Congress’ power to regulate ‘‘Indian 

tribes’’ and ‘‘indigenous peoples’’ why does this legislation treat Native Hawaiians 

differently from Native Americans by segregation of programs and the creation of 

a new Office of Native Hawaiian Affairs? 

Answer. Excellent question. It pinpoints the deceptive sales pitch that the Akaka 

bill would just give Native Hawaiians the same recognition as Native Americans. 

No Native American group has the right to be recognized as a tribe merely because 

its members share Indigenous ancestors, as the Akaka bill proposes for Native Hawaiians. 

By giving superior political power to Native Hawaiians based on blood alone; and 

by equating them with Native Americans and Native Alaskans, the Akaka bill 

108

would put all three groups into the ‘‘race’’ category and would either threaten the 

continued existence of real Indian tribes or erase the Civil Rights movement and 

the Civil War itself from our history. 

For over 20 years, a draft Declaration of Indigenous Rights has circulated in the 

United Nations. The United States and other major countries have opposed it because it challenges the current global system of states; is ‘‘inconsistent with international law’’; ignores reality by appearing to require recognition to lands now lawfully owned by other citizens; and ‘‘No government can accept the notion of creating 

different classes of citizens.’’ In November 2006, a subsidiary body of the U.N. General Assembly rejected the draft declaration, proposing more time for further study. 

Thus, by enacting the Akaka bill, Congress would brush aside core underpinnings 

of the United States itself both as to the special relationship with real Indian tribes; 

and as to the sacred understanding of American citizenship as adherence to common 

principles of equal justice and the rule of law, in contrast to common blood, caste, 

race or ethnicity.

Question 5. If existing law was modified, and Native Hawaiians were allowed to 

apply for tribal recognition through the established process, would it qualify for such 

status? 

Answer. No. The United States has granted tribal recognition only to groups that 

have a long, continuous history of self-governance in a distinct community separate 

from the non-Indian community. But there has never been, even during the years 

of the Kingdom, any government for Native Hawaiians separate from the government of all the people of Hawaii. 

Census 2000 counted some 400,000 persons who identified themselves as of some 

degree of Native Hawaiian ancestry. About 60 percent of them or about 240,000, live 

in the State of Hawaii and are spread throughout all the census districts of the 

State of Hawaii. The other 40 percent, or about 160,000, live throughout the other 

49 states. The Akaka bill would recognize these 400,000 people plus everyone anywhere else in the world with at least one ancestor indigenous to Hawaii, as a tribe. 

Such widely scattered and disconnected persons would not be eligible for recognition 

under CFR by the DOI or by Congress under the standards set by the Supreme 

Court. 

If blood alone were sufficient for tribal recognition (as the Akaka bill proposes for 

Native Hawaiians), Indian law would change radically. Millions of Americans with 

some degree of Indian ancestry, but not currently members of recognized tribes, 

would be eligible. Some 60 tribes from all parts of the country were relocated to 

Oklahoma in the 1800s. Descendants of each of those tribes would be arguably entitled to create their own new governments in the states where they originated. Indian tribes and Indian Casinos would surely proliferate.

Question 6. Do you believe that the Bill of Rights, and the essential protections 

it provides, is up for negotiation for any American citizen? 

Answer. Yes, the Akaka bill would put the Bill of Rights of every American citizen 

in Hawaii and in all other states on the table as bargaining chips. If this bill should 

become law, it would be the first step in the breakup of the United States. Its 

premise is that Hawaii needs two governments: One in which everyone can vote 

which must become smaller and weaker; The other in which only Native Hawaiians 

can vote, growing more powerful as the other government shrinks away. 

In the negotiation process called for by S. 310, the transfers of lands, reefs, territorial waters, power and civil and criminal jurisdiction go only one way; and are unlimited in scope or duration. The bargaining can and likely will continue slice by 

slice, year after year, until the State of Hawaii is all gone, and 80 percent of Hawaii’s citizens are put into servitude to the new Congressionally sponsored hereditary elite. 

But even then it will not be over, because there are today living descendants of 

the indigenous people of every state. Surely they will take notice and demand their 

own governments.

Question 7. How does the recognition of Native Hawaiians impact potential claims 

by other ‘‘indigenous groups,’’ such at those in the Southwest? 

Answer. The impact would be ominous. Today, over 1 million American citizens 

residing in Hawaii are under siege by what can fairly be called an evil empire dedicated to Native Hawaiian Supremacy. A remarkable book has revealed that America’s largest charitable trust, Kamehameha Schools Bishop Estate (KSBE), has used 

its $8.5 Billion in assets and vast land holdings to so corrupt the political process 

in the State of Hawaii that the legislative, executive and judiciary powers have 

been, and still seem to be, concentrated in the hands of those who facilitated a 

‘‘World Record for Breaches of Trust’’ by trustees and others of high position, without surcharge or accountability. Broken Trust: Greed, Mismanagement & Political 

109

Manipulation at America’s Largest Charitable Trust, King and Roth, 2006. KSBE 

openly flaunts its association with others in supporting passage of the Akaka bill. 

KSBE and its Alumni Associations of Northern and Southern California are members of CNHA, Council for Native Hawaiian Advancement, http://

www.hawaiiancouncil.org/members.html.

The nativehawaiians.com website, lists the co-conspirators: CNHA, the Kamehameha Alumni Association, the prominent entities [many under KSBE’s hegemony] 

that support the Akaka bill; and a number of questionable groups such as the National Council of La Raza, the organization that seeks to ‘‘liberate’’ the Southwest. 

http://www.nativehawaiians.com/listsupport.html.

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