89–010 

Calendar No. 314 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–162 

TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE 

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

THE NATIVE HAWAIIAN GOVERNING ENTITY 

MARCH 11, 2010.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 1011] 

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

(S. 1011) to express the policy of the United States regarding the 

United States relationship with Native Hawaiians and to provide 

a process for the recognition by the United States of the Native Hawaiian governing entity, reports thereon with an amendment in the 

nature of a substitute and recommends that the bill as amended 

do pass. 

PURPOSE

The purpose of S. 1011 is to establish a process for the reorganization of a Native Hawaiian government and, when that process 

has been completed in accordance with the Act, to reaffirm the special political and legal relationship between the United States and 

the Native Hawaiian governing entity for purposes of carrying on 

a government-to-government relationship. 

BACKGROUND AND HISTORY

S. 1011 is the most recent Senate bill establishing a process for 

reorganizing and recognizing a Native Hawaiian governing entity. 

Similar bills have been introduced since 1999. These bills are the 

result of long-standing efforts to address the consequences of the 

1893 overthrow of the Kingdom of Hawaii, an event that officers 


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1The per capita income for Native Hawaiians is almost 35% lower than the statewide figure. 

See Shawn M. Kanaiaupuni et al., Income and Poverty Among Native Hawaiians: Summary of 

Ka Huakai Findings 4 (2005) (relying on U.S. Census 2000 data). One in seven Native Hawaiian 

families lives below the poverty level. Id. at 7; see also Income and Poverty in Hawaii; 2008, 

Hawaii Dep’t of Bus., Econ. Dev., and Tourism 1–2 (2008) (citing U.S. Census Bureau data from 

the 2008 American Community Survey). 

of the United States participated in and encouraged, and to provide 

a process by which to organize a federally recognized native group. 

The language of S. 1011, as introduced, is identical to legislative 

language that was negotiated between the Hawaii Congressional 

Delegation and officials from the Department of Justice, the Office 

of Management and Budget, and the White House in the 109th and 

110th Congresses. The language is intended to address concerns 

expressed in a July 2005 letter from the Administration regarding 

land claims, as well as the bill’s impact on military readiness, gaming, and civil and criminal jurisdiction in Hawaii. 

In 1993, Congress passed an Apology Resolution (Pub. L. No. 

103–150) in which it apologized on behalf of the United States to 

the Native Hawaiians for the United States’ role in the overthrow 

of the Native Hawaiian government and committed the United 

States to supporting reconciliation efforts between the United 

States and the Native Hawaiian people. In response to the Apology 

Resolution, the Departments of the Interior and Justice initiated a 

process of reconciliation in 1999 by conducting meetings in Native 

Hawaiian communities. The result of these reconciliation efforts 

was a joint report, From Mauka to Makai: The River of Justice 

Must Flow Freely, published in 2000. Since the issuance of the report, the Senators from Hawaii have introduced legislation to implement the findings of the reconciliation report. This Committee 

held several hearings on the matter and has continued to hold 

hearings each Congress. 

Native Hawaiians are the native people of Hawaii with whom 

the United States has a special legal and political relationship. 

Since 1921, Congress has repeatedly recognized the distinct status 

of Native Hawaiians. The long-standing policy of the United States 

has been to protect and advance Native Hawaiian interests. 

Native Hawaiians continue to suffer the consequences of the 

1893 overthrow of their indigenous government. Today, Native Hawaiians continue to have higher rates of poverty and lower incomes 

than non-Native Hawaiians in Hawaii.1 Establishing an avenue for 

Native Hawaiians to reorganize and receive Federal recognition 

will provide opportunities for Native Hawaiians to preserve their 

cultural resources, exercise self-governance and self-determination, 

and develop their own solutions to the problems faced by their community. 

Native Hawaiian society before European contact 

Hawaii was originally settled by voyagers from central and eastern Polynesia who travelled great distances in double-hulled 

voyaging canoes to arrive in Hawaii, perhaps as early as 300 A.D. 

Hundreds of years of Hawaiian isolation followed the era of ‘‘long 

voyages.’’ During these centuries, the Native Hawaiians evolved a 

system of self-governance and a highly organized, self-sufficient, 

subsistent social system based on communal land tenure, with a sophisticated language, culture, and religion. There was no concept 

of private land ownership in early Hawaiian thought. The comVerDate Nov 24 2008 00:19 Mar 17, 2010 Jkt 089010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX SR162

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2See David E. Stannard, Before the Horror: The Population of Hawaii on the Eve of Western 

Contact 59 (1989) (arguing that a population estimate of 800,000 is a ‘‘low to moderate estimate’’). 3See, e.g., Richard H. Houghton III, An Argument for Indian Status for Native Hawaiians: 

The Discovery of a Lost Tribe, 14 Am. Indian L. Rev. 1, 10 & n.74 (citing 3 Captain Cook’s Journals 490–91, 530, 540 (W. Wharton, ed. 1893)). 4Lawrence H. Fuchs, Hawaii Pono: A Social History 8–10 (1961). 

5 Id. at 8–9. 6Melody Kapilialoha MacKenzie, Historical Background, Native Hawaiian Rights Handbook 

5 (Melody Kapilialoha MacKenzie, ed., 1991). 7Fuchs, supra note 4, at 10–11; Ralph S. Kuykendall & A. Grove Day, Hawaii: A History, 

From Polynesian Kingdom to American State 41–43 (rev. ed., Prentice-Hall, Inc. 1961). 

munal nature of the economy and the structure of the society resulted in values strikingly different from those prevalent in more 

competitive Western economies and societies. 

Hawaii’s social, economic, and political system was highly developed and evolving, and its population, conservatively estimated to 

be at least 300,000, was relatively stable before the arrival of the 

first European explorers.2

European contact 

Hawaii was ‘‘discovered’’ by Europeans in 1778, when Captain 

James Cook of the British Royal Navy landed. In their logs and 

diaries, Captain Cook and his officers referred to the people they 

found in the Hawaiian Islands as ‘‘Indians.’’ 3

Other foreign vessels soon followed on journeys of exploration or 

trade.4 In the years following Cook’s arrival, warring Hawaiian 

chiefs used foreign weapons and fought for control of Hawaii. In 

1810, the Native Hawaiian political, economic, and social structure 

was unified under a monarchy led by King Kamehameha I. The authority of the King was derived from the gods, and he was a trustee of the land and other natural resources of the islands which 

were held communally. 

Western contact led to a precipitous decline in the Native Hawaiian population. Between Cook’s arrival in 1778 and 1820, disease, 

famine, and war killed more than half of the Native Hawaiian population. By 1866, only 57,000 Native Hawaiians lived on the islands, compared to the stable pre-1778 population of at least 

300,000. The impact of Western contact was greater than the numbers can convey: old people were left without the young adults to 

support them; children were left without parents or grandparents 

to instill traditional values and practices. The result was a rending 

of the social fabric. 

This devastating population loss was accompanied by cultural destruction. Western sailors, merchants, and traders did not abide by 

the Hawaii kapu (taboos) system or religious practices. As a result, 

the chiefs began to imitate the foreigners, whose ships and arms 

were technologically more advanced than their own.5 The kapu 

were abandoned soon after the death of Kamehameha I. 

Western merchants also forced rapid change in the islands’ economy. Initially, Hawaiian chiefs sought to trade for Western goods 

and weapons, taxing and working commoners to obtain the supplies 

and valuable sandalwood needed for such trades. As Hawaii’s stock 

of sandalwood declined, so did that trade.6 However, it was replaced by whaling and other mercantile activities.7 Soon, more 

than four-fifths of Hawaii’s foreign commerce was American; the 

whaling services industry and mercantile business in Honolulu 


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8Fuchs, supra note 4, at 18–19; MacKenzie supra note 6, at 6, 9–10. 9 In the mid-1800s, non-Hawaiians were able to acquire land formerly under the control of Native Hawaiians. These non-natives sought and were able to ‘‘consolidate their economic gains 

into political dominance.’’ Cohen’s Handbook of Federal Indian Law § 4.07[4][b], at 366–67 (Nell 

Jessup Newton ed., 2005) [hereinafter Cohen’s Handbook]. 10MacKenzie, supra note 6, at 6. 11 Cohen’s Handbook, supra note 9, § 4.07[4][b], at 367 (citing Jon Chinen, The Great Mahele 

31 (Univ. Haw. Press 1958)). 12MacKenzie, supra note 6, at 6–9. The makaainana failed to secure a great portion of the 

land for a number of reasons. Many did not know of or understand the new laws, could not 

afford the survey costs, feared that a claim would be perceived as a betrayal of the chief, were 

unable to farm without the traditional common cultivation and irrigation of large areas, or were 

killed in epidemics or migrated to cities. Id. at 8. 

were primarily in American hands.8 Eventually, the principles of 

communal ownership and cultivation of the land were replaced by 

a Western system of individual property ownership. 

The mass privatization of Native Hawaiian land 

As the middle of the 19th century approached, the islands’ small 

non-Hawaiian population wielded an influence far in excess of its 

size.9 These influential Westerners sought to limit the power of the 

Hawaiian King over their legal rights and to implement property 

law so that they could accumulate and control land. These goals 

were achieved as a result of foreign pressure.10

The Westerners’ efforts were successful in 1840, when the King 

of Hawaii promulgated a new constitution, establishing a hereditary House of Nobles and an elected House of Commons. In 1842, 

the King authorized the Great Mahele, the division of Hawaii’s 

communal land system into private ownership between himself and 

his royal successors, the chiefs, and the Hawaiian government. Ultimately, the Great Mahele led to the transfer of substantial 

amounts of land into Western hands. In 1848, the King conveyed 

about 1.5 million of the approximately 4 million acres in the islands to the konohiki (main chiefs). He reserved about 1 million 

acres for himself and his royal successors (‘‘Crown Lands’’), and allocated about 1.5 million acres to the government of Hawaii (‘‘Government Lands’’).11

All lands remained subject to the rights of native tenants. However, in 1850, after the division was accomplished, an act was 

passed permitting non-natives to purchase land from Native Hawaiians in fee simple. This resulted in a dramatic concentration of 

land ownership in plantations, estates, and ranches owned by nonnatives. The law implementing the Great Mahele contemplated that 

the makaainana (commoners) would receive a substantial portion 

of the distributed lands because they were entitled to file claims to 

the lands that their ancestors had cultivated. In the end, however, 

only 28,600 acres (less than 1% of the land) were awarded to about 

8,000 individual Native Hawaiian farmers.12

United States enters into treaties with Native Hawaiian government 

Ultimately, the 2,000 Westerners who lived on the islands obtained much of the profitable acreage from the commoners and 

chiefs. The mutual interests of Americans living in Hawaii and 

those living in the United States became increasingly clear. American merchants and planters in Hawaii wanted access to mainland 

markets and protection from European and Asian domination. 

The United States developed a military and economic interest in 

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13S. Exec. Doc. No. 52–77, at 160–63 (1893). 14Supplementary Convention, Dec. 6, 1884, U.S.-Haw., art. II, 25 Stat. 1400 (proclaimed Nov. 

9, 1887). 15 Nonetheless, at least one scholar has concluded that ‘‘the Native Hawaiians still played an 

active and usually dominant role in the politics of the islands, because though the new 1887 

Constitution increased the political power of the large foreign property-holders in various ways, 

the suffrage was still in native hands. The 1890 census reported that 13,593 were registered 

to vote, and of these 8,777 were listed as ‘natives’ and another 777 were ‘half-castes,’ i.e., partHawaiians.’’ Jon M. Van Dyke, Population, Voting, and Citizenship in the Kingdom of Hawaii, 

28 U. Haw. L. Rev. 81, 100 (2005) (internal quotation marks, alterations, and citations omitted). 

The same scholar concludes more broadly that it is ‘‘not in doubt’’ that ‘‘Native Hawaiians constituted the overwhelming majority of the political community that participated in the decisionmaking in the Kingdom at the time of the 1893 overthrow.’’ Id. at 81. 16See 39 L.A. Thurston, Memoirs of the Hawaiian Revolution 230–32 (1936). 

ests, the United States entered into a series of four treaties with 

the Kingdom of Hawaii. American advisors urged the King to pursue international recognition of Hawaiian sovereignty, backed by 

an American guarantee of continued independence. 

America’s political influence in Hawaii was heightened by the 

rapid growth of the island sugar industry which followed the Great 

Mahele. The 1875 Convention on Commercial Reciprocity eliminated the American tariff on sugar from Hawaii and virtually all 

tariffs that Hawaii had placed on American products.13 Critically, 

it also prohibited Hawaii from giving political, economic, or territorial preferences to any other foreign power. When the Reciprocity 

Treaty was extended in 1887, the United States also obtained the 

right to establish a military base at Pearl Harbor.14

Overthrow of the Native Hawaiian government 

In 1887, King Kalakaua appointed a prime minister who was 

supported by the Native Hawaiian people and who opposed allowing the United States to establish a military base at Pearl Harbor 

as a part of the Reciprocity Treaty. The business community, 

backed by the Honolulu Rifles, a military group formed by the children of American missionaries, forced the prime minister’s resignation and the enactment of a new constitution. The new constitution, often referred to as the Bayonet Constitution due to the use 

of military force, reduced the King to a figure of minor constitutional importance. It extended the right to vote to Western males, 

whether or not they were citizens of the Hawaiian Kingdom, and 

disenfranchised almost all native voters by giving only residents 

with a specified income level or amount of property the right to 

vote for members of the House of Nobles. This resulted in representatives of the Westerners taking control of the legislature.15

In 1891, Queen Liliuokalani came to power. Queen Liliuokalani 

supported promulgating a new constitution that would restore absolute control over the legislature to the reigning sovereign. Realizing that the Hawaiian monarchy posed a continuing threat to the 

unimpeded pursuit of Western interests, the Westerners formed a 

Committee of Public Safety to overthrow the Kingdom of Hawaii. 

Mercantile and sugar interests also favored annexation by the 

United States to ensure access on favorable terms to mainland 

markets and protection from Asian conquest. The American annexation group collaborated closely with the United States Minister in 

Hawaii.16

On January 16, 1893, at the order of United States Minister 

John Stevens, a contingent of United States Marines from the USS 

Boston marched through Honolulu to a building located near both 


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17 Id. 18 Id. 19President’s Message Relating to the Hawaiian Islands, H. Exec. Doc. No. 53–47, at xv (1893) 

(asserting that the United States ‘‘can not allow itself to refuse to redress an injury inflicted 

through an abuse of power by officers clothed with its authority and wearing its uniform; . . . 

the United States can not fail to vindicate its honor and its sense of justice by an earnest effort 

to make all possible reparation’’). 20S. Rep. No. 53–227, at 21 (1894) (emphasis added). 21Kuykendall & Day, supra note 7, at 183. 22 Id. at 184; MacKenzie, supra note 6, at 13. 23 Republic of Haw. Const. art. 101. 24 U.S. Dep’t of the Interior & U.S. Dep’t of Justice, From Mauka to Makai: The River of Justice Must Flow Freely 29 (2000) [hereinafter Mauka to Makai Report] (citing NoeNoe K. Silva, 

Kanaka Maoli Resistance to Annexation, 1Oiwi: A Native Hawaiian Journal (Dec. 1998)). 25W.A. Russ, The Hawaiian Republic (1894–1898) 198, 209 (1961). The resolutions were 

signed by 21,269 people, representing more than 50% of the Native Hawaiian population at that 

time. Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y 

Rev. 95, 103 & n.48 (1998) (citing Dan Nakaso, Anti-Annexation Petition Rings Clear, Honolulu 

Advertiser, Aug. 5, 1998, at 1). 

the government building and the palace.17 The next day, local nonHawaiian revolutionaries seized the government building and demanded that Queen Liliuokalani abdicate the monarchy.18 Minister 

Stevens immediately recognized the rebels’ provisional government 

and placed it under the United States’ protection. 

Upon hearing the news, United States President Benjamin Harrison promptly sent an annexation treaty to the Senate for ratification and denied any United States involvement in the revolution. 

Before the Senate could act, however, President Grover Cleveland 

assumed office and withdrew the treaty; he also demanded that the 

Queen be restored.19 But the Senate Foreign Relations Committee 

issued a report ratifying Stevens’s actions and recognizing the provisional government of Hawaii. In doing so, the Senate Foreign Relations Committee described the relations between the United 

States and Native Hawaiian government as unique because ‘‘Hawaii has been all the time under a virtual suzerainty [a nation controlled by another nation] of the United States.’’ 20

Hawaii’s path to statehood, 1893–1959 

As a result of this impasse between President Cleveland and the 

Senate, the United States Government neither restored the Queen 

nor annexed Hawaii. The Provisional Government of Hawaii called 

a constitutional convention whose composition and members it controlled.21 The convention promulgated a constitution for the new 

Republic of Hawaii that imposed property and income qualifications as prerequisites for the franchise and for holding elected office.22 Article 101 of the Constitution of the Republic of Hawaii required prospective voters to swear an oath of support to the Republic and to declare they would not, ‘‘either directly or indirectly, encourage or assist in the restoration or establishment of a Monarchical form of Government in the Hawaiian Islands.’’ 23 The overwhelming majority of the Native Hawaiian population, who were 

loyal to their Queen, refused to swear such an oath and were effectively disenfranchised.24

In 1896, William McKinley was elected President of the United 

States. He quickly sent the Senate another annexation treaty. Simultaneously, the Native Hawaiian people adopted resolutions 

which they sent to Congress stating that they opposed annexation 

and wanted to be an independent kingdom.25 The annexation treaty failed in the Senate because a two-thirds majority could not be 


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26Kuykendall & Day, supra note 7, at 188; MacKenzie, supra note 6, at 14. 27Fuchs, supra note 4, at 36. 28 Joint Resolution for Annexing the Hawaiian Islands to the United States, ch. 55, 30 Stat. 

750, 751 (1898) (Annexation Resolution). 29 Act of April 30, 1900, ch. 339, 31 Stat. 141 (Organic Act). 30 Hawaiian Homes Commission Act, 1920: Hearing on H.R. 13500 Before the S. Comm. on 

Territories, 66th Cong. 44 (1920) (statement of Rev. Akaiko Akana). 31McGregor, Aina Hoopulapula: Hawaiian Homesteading, 24 Hawaiian J. of Hist. 1, 5 (1990). 

obtained as required under the Treaty Clause of the U.S. Constitution. 

However, pro-annexation forces in the House of Representatives 

introduced a Joint Resolution of Annexation that could be adopted 

with only a simple majority in each House of Congress. The balance was tipped in favor of the Resolution by the United States’ 

entry into the Spanish-American War. American troops were fighting in the Pacific, particularly in the Philippines, and the United 

States needed to be sure of a Pacific base.26 In July 1898, the Joint 

Resolution was enacted, ‘‘the fruit of approximately seventy-five 

years of expanding American influence in Hawaii.’’ 27

On August 12, 1898, the Republic of Hawaii ceded sovereignty 

and conveyed title to its public lands, including the Government 

and Crown Lands, to the United States.28 In 1900, Congress passed 

the Hawaii Organic Act,29 establishing a Hawaiian territorial government. Ultimately, Congress admitted Hawaii to the Union as 

the fiftieth state with the enactment of the Admission Act in 1959. 

Continuity of Native Hawaiian identity 

Even after the overthrow of the Hawaiian monarchy, Native Hawaiians continued to maintain their separate identity as a single 

distinct political community through cultural, social, and political 

institutions, and through efforts to develop programs to provide 

governmental services to Native Hawaiians. For example, the Hawaiian Protective Association—a political organization with bylaws 

and a constitution that sought to maintain unity among Native Hawaiians, protect Native Hawaiian interests (including by lobbying 

the legislature), and promote the education, health, and economic 

development of Native Hawaiians—was organized in 1914 ‘‘for the 

sole purpose of protecting the Hawaiian people and of conserving 

and promoting the best things of their tradition.’’ 30 To this end, the 

Association established twelve standing committees, published a 

newspaper, undertook dispute resolution, promoted the education 

and the social welfare of the Native Hawaiian community, and 

developed the framework that became the Hawaiian Homes Commission Act (‘‘HHCA’’) in 1921. In 1918, Prince Jonah Kuhio 

Kalanianaole (Prince Kuhio), the Territory of Hawaii’s delegate to 

Congress, and other prominent Hawaiians founded the Hawaiian 

Civic Clubs, the goal of which was ‘‘to perpetuate the language, history, traditions, music, dances and other cultural traditions of Hawaii.’’ 31 The clubs’ first project was to secure enactment of the 

HHCA, and the clubs remain in existence today. 

Efforts to maintain a distinct political community have continued 

through the 20th century to the present day. Examples include the 

1988 Native Hawaiian Sovereignty Conference; the Kau Inoa initiative, which registers Native Hawaiians for a movement toward a 

Native Hawaiian governing entity; the efforts to protect the North 

West Hawaiian Islands because of their cultural and traditional 


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32See Andrew J. Hosmanek, Cutting the Cord: Ho’oponopono and Hawaiian Restorative Justice in the Criminal Law Context, 5 Pepp. Disp. Resol. L.J. 359 (2005). 33S. 1011, Section 2(12); see also S. 1011, Section 2(18) (‘‘Native Hawaiian people are actively 

engaged in Native Hawaiian cultural practices, traditional agricultural methods, fishing and 

subsistence practices, maintenance of cultural use areas and sacred sites, protection of burial 

sites, and the exercise of their traditional rights to gather medicinal plants and herbs, and food 

sources.’’). 34See, e.g., Haw. Rev. Stat. § 174C–101(c), (d) (stating that certain traditional and customary 

water rights ‘‘shall not be abridged or denied,’’ or ‘‘diminished or extinguished,’’ by provision of 

the State Water Code); id. § 187A–23 (providing for recognition of certain ‘‘vested fishing rights’’ 

linked to ‘‘ancient regulations’’). 35 Haw. Const. art. XII, § 7. In ancient Hawaii, the islands were divided into landholding units 

known as ahupua’a, self-sufficient areas that generally ran from the sea to the mountains. In 

Re Boundaries of Pulehunui, 4 Haw. 239 (1879). 36See, e.g., Public Access Shoreline Hawaii v. Hawaii County Planning Comm’n, 903 P.2d 

1246 (Haw. 1995); State v. Hanapi, 970 P.2d 485 (Haw. 1998); Kalipi v. Hawaiian Trust Co., 

656 P.2d 745 (Haw. 1982). 37See, e.g., 16 U.S.C. § 396d (Kaloko-Honokohau National Historical Park). 38 ‘‘In modern times the state legislature and courts of Hawaii, to a degree not found in any 

other state, have recognized and supported an array of traditional rights relating to beach access, fishing, water, access to sacred sites, and language.’’ Charles Wilkinson, Blood Struggle: 

The Rise of Modern Indian Nations 371 (2005). 39See Haw. Rev. Stat. § 1–1; In re application of Ashford, 440 P.2d 76, 77–78 (1968). 40 Id. 41O’Brien v. Walker, 35 Haw. 104 (Haw. Terr. 1939). 42Leong v. Takasaki, 520 P.2d 758, 767 (Haw. 1974). 

significance; the creation of the Office of Hawaiian Affairs, which 

serves as an entity to protect Native Hawaiian interests; and the 

development of traditional justice programs, including a traditional 

method of alternative dispute resolution, ‘‘hooponopono,’’ which has 

been endorsed by the Native Hawaiian Bar Association.32

Moreover, as S. 1011’s findings explain, ‘‘the Native Hawaiian 

people have actively maintained native traditions and customary 

usages throughout the Native Hawaiian community, and the Federal and State courts have continuously recognized the right of the 

Native Hawaiian people to engage in certain customary practices 

and usages on public lands.’’ 33 For example, traditional Native Hawaiian fishing and water rights are protected by state law,34 and 

a 1978 amendment to the Hawaii Constitution specifically protects 

ahupuaa tenants’ traditional and customary rights for subsistence, 

cultural, and religious purposes.35 Hawaiian courts have also recognized and upheld traditional gathering and access rights.36 In addition, Native Hawaiian traditional practices are often permitted on 

Federal lands, including National Parks.37

Further, Native Hawaiian customary law continues to be preserved and recognized by Hawaii state courts, notably in the areas 

of property and family law.38 Traditional Hawaiian usage, in the 

absence of a statute, is controlling over common law to the contrary.39 Testimony of kamaaina witnesses, who have knowledge of 

ancient traditions, customs, and usages, may be admitted in Statecourt land disputes.40 In addition, courts have taken into account 

a form of customary adoption, hanai, in determining, for example, 

whether a child ‘‘issue[d]’’ from his adoptive parents was entitled 

to a share of their estates,41 and in measuring damages for intentional infliction of emotional distress.42

These practices and legal protections further reinforce the Native 

Hawaiian community’s continuing status as a distinctly native 

community. 


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43S. 1011, Section 2(23)(C); see, e.g., Brief of United States at 4–5, 16 & nn.2–4, Rice v. Cayetano, 528 U.S. 495 (2000) (citing statutes in which Congress ‘‘established special Native Hawaiian programs in the areas of health care, education, employment, and loans’’; sought ‘‘to preserve Native Hawaiian culture, language, and historical sites; and ‘‘by classifying Native Hawaiians as Native Americans . . . extended to Native Hawaiians many of the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities.) (internal 

citations and quotation marks omitted). 

RECOGNITION BY THE UNITED STATES OF OBLIGATIONS TO NATIVE

HAWAIIANS

In keeping with the special status generally accorded other native groups, Congress has recognized the distinct status of the Native Hawaiians by ‘‘extend[ing] services to [them]’’ on the basis of 

that status, recognizing that they are ‘‘the native people of a priorsovereign nation with whom the United States has a special political and legal relationship.’’ 43 As evidence of this special relationship, Congress has enacted more than 150 laws addressing the conditions of Native Hawaiians and providing them with benefits. Two 

important examples—the Hawaiian Homes Commission Act and 

the Hawaii Admission Act—are discussed in the next two sections. 

However, numerous other examples of Congress’s recognition of the 

distinct status of the Native Hawaiians could be cited, including 

the Native American Language Act of 1990, which recognized and 

clarified the language rights of American Indians, Alaska Natives, 

and Native Hawaiians and explicitly allowed exceptions to teacher 

certification requirements for instruction in Native American languages; the Native Hawaiian Education Act of 1988 (Title IV of the 

Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988) which awarded 

$30 million annually in competitive education grants to programs 

benefitting Native Hawaiian students; the Native Hawaiian Assessment Project of 1983; the Native Hawaiian Health Care Improvement Act; the Native American Graves Protection and Repatriation Act; and the Native American Housing Assistance and SelfDetermination Act of 1996. 

Hawaiian Homes Commission Act 

Congress explicitly recognized the existence of a special legal and 

political relationship between the Native Hawaiian people and the 

United States with the enactment of the Hawaiian Homes Commission Act in 1921. Prior to enactment of this law, Congress received 

testimony from Executive Branch officials analogizing the Federal 

Government’s relationship with, and responsibilities to, Native Hawaiians to its relationship with other Native Americans. 

As described above, beginning in the early 1800s, large amounts 

of land in Hawaii were made available to foreigners and were eventually leased to them to cultivate pineapple and sugar cane. Large 

numbers of Native Hawaiians were forced off the lands that they 

had cared for and traditionally occupied. Many of these Native Hawaiians moved into the urban areas, often living in severely overcrowded tenements and contracting diseases for which they had no 

immunities. 

By 1920, due to the dramatic decline in the number of Native 

Hawaiians in the decades leading up to and following the overthrow of the monarchy, many concluded that if the native people 

of Hawaii were to be saved from extinction, they had to have the 


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44The legislative history of the HHCA includes numerous references to the Native Hawaiian 

community as a ‘‘race’’ or a ‘‘dying race.’’ See, e.g., H.R. Rep. No. 66–839, at 2 (1920). This is 

consistent with the way Federal officials referred to Indian tribes during the same period. See, 

e.g., United States v. Sandoval, 231 U.S. 28, 46 (1913) (referring to ‘‘these remnants of a race 

once powerful, now weak and diminished in numbers’’ (quoting United States v. Kagama, 118 

U.S. 375, 384 (1886)); United States v. Rickert, 188 U.S. 432, 437 (1903) (referring to the ‘‘weakness and helplessness’’ of ‘‘this dependent race’’) (internal citation omitted)). The HHCA legislative history also refers to Native Hawaiians as a ‘‘people.’’ See, e.g., H.R. Rep. No. 66–839, at 

3 (1920) (referring to Native Hawaiians as ‘‘a dying people’’); id. at 4 (referring to Native Hawaiians as a ‘‘noble people’’). This locution also was used with regard to Indian tribes. See, e.g., 

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). 45 H.R. Rep. No. 66–839, at 4 (1920). 46Proposed Amendments to the Organic Act of the Territory of Hawaii: Hearings Before the 

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

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

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

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

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

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

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

id. at 167–70 (colloquy between Representative Curry, Chair of the Committee, and Representatives Dowell and Humphreys, making the same analogy and rejecting the objection that ‘‘we 

have no government or tribe to deal with here’’). 47 Id. at 39. Wise’s testimony was also quoted and adopted in the House Committee on the 

Territories’ report to the full U.S. House of Representatives. H.R. Rep. No. 66–839, at 4 (1920). 48 59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio Kalanianaole). 49 H.R. Rep. No. 66–839. at 5 (1920) (statement of Secretary Lane). 

means of regaining their connection to the land, the aina.44 In 

hearings on the matter, Secretary of the Interior Franklin Lane explained the special relationship on which the statute was premised: 

One thing that impressed me . . . was the fact that the 

natives of the island, who are our wards, I should say, and 

for whom in a sense we are trustees, are falling off rapidly 

in numbers and many of them are in poverty.45

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

same idea’’ that supports such programs for other Indians.46

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

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

of Representatives as follows: 

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

Hawaiians is to rehabilitate them. I believe that we should 

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

The Hawaiian people are a farming people and fishermen, 

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

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

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

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

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

and give them the mode of living that their ancestors were 

accustomed to and in that way rehabilitate them.47

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

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

pass from the face of the earth.’’ 48 Secretary Lane attributed the 

declining population to health problems like those faced by the ‘‘Indian in the United States’’ and concluded that the Nation must provide similar remedies.49


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50 Hawaiian Homes Commission Act, 1920, Pub. L. No. 67–34, §§ 203–204, 42 Stat. 108, 109– 

10. 51 H.R. Rep. No. 66–839, at 11 (1920); see id. at 4 (suggesting that the HHCA was enacted 

in part because, after the arrival and settlement of foreigners in Hawaii, the Native Hawaiians 

had been ‘‘frozen out of their lands and driven into the cities,’’ where they were ‘‘dying’’ as a 

people). 52 Id. at 6–7. 53 25 U.S.C. §§ 331–334, 339, 342, 348, 349, 381 (1998). 54See Mauka to Makai Report, supra note 24, at 36. 55See id. at 32–37. 56Pub. L. No. 86–3, 73 Stat. 4 (Mar. 18, 1959) (the ‘‘Admission Act’’). 

The effort to ‘‘rehabilitate’’ Native Hawaiians by returning them 

to the land led Congress to enact the Hawaiian Homes Commission 

Act on July 9, 1921. The Act set aside approximately 200,000 acres 

of the Ceded Lands for homesteading by Native Hawaiians.50 Congress compared the Act to ‘‘previous enactments granting Indians 

. . . special privileges in obtaining and using the public lands.’’ 51

In support of the Act, the House Committee on the Territories recognized that, prior to the Great Mahele, Hawaiians had a one-third 

interest in the lands of the Kingdom. The Committee reported that 

the Act was necessary to address the way Hawaiians had been 

short-changed in prior land-distribution schemes.52

The 1921 Act provides that the lessee must be a Native Hawaiian, who is entitled to a lease for a term of ninety-nine years, provided that the lessee occupy and use or cultivate the tract within 

one year after the lease is entered into. A restriction on alienation, 

like those imposed on Indian lands subject to allotment, was included in the lease. Also, like the general allotment acts affecting 

Indians,53 the leases were intended to encourage rural homesteading so that Native Hawaiians would leave the urban areas 

and return to rural subsistence or commercial farming and ranching. In 1923, Congress amended the Act to permit one-half acre 

residence lots and to provide for home-construction loans. Thereafter, the demand for residential lots far exceeded the demand for 

agricultural or pastoral lots.54

During the remainder of the Territorial period and the first two 

decades following statehood, administration of the Hawaiian home 

lands program was inadequately funded, and some of the best 

lands were leased to non-Hawaiians to generate operating funds. 

Little income remained for the development of infrastructure or the 

settlement of Hawaiians on the home lands. The lack of resources, 

combined with questionable transfers and exchanges of Hawaiian 

home lands and a decades-long waiting list of those eligible to reside on the homelands, made the program an illusory promise for 

most Native Hawaiians.55 While the Act did not succeed in its purpose, its enactment is an express affirmation of the United States’ 

special political and legal relationship to and responsibility for the 

Native Hawaiian people. 

The Hawaii Admission Act 

As a condition of statehood, the Hawaii Admission Act 56 required 

the State of Hawaii to adopt the Hawaiian Homes Commission Act 

and imposed a public trust on the lands ceded by the United States 

to the new State. The 1959 Compact between the United States 

and the People of Hawaii by which Hawaii was admitted into the 

Union expressly provides that: 


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57 Admission Act §§ 4, 5(f), 73 Stat. at 5–6 (emphasis added). 58 Han v. United States, 45 F.3d 333, 337 (9th Cir. 1995). 

[Section 4.] As a compact with the United States relating 

to the management and disposition of the Hawaiian home 

lands, the Hawaiian Homes Commission Act, 1920, as 

amended, shall be adopted as a provision of the Constitution of said State, as provided in section 7, subsection (b) 

of this Act, subject to amendment or repeal only with the 

consent of the United States, and in no other manner: Provided, That (1) . . . the Hawaiian home-loan fund, the Hawaiian home-operating fund, and the Hawaiian home-development fund shall not be reduced or impaired by any 

such amendment, whether made in the constitution or in 

the manner required for State legislation, and the encumbrances authorized to be placed on Hawaiian home lands 

by officers other than those charged with the administration of said Act, shall not be increased, except with the 

consent of the United States; (2) that any amendment to 

increase the benefits to lessees of Hawaiian home lands 

may be made in the constitution, or in the manner required for State legislation, but the qualifications of lessees shall not be changed except with the consent of the 

United States; and (3) that all proceeds and income from 

the ‘‘available lands’’, as defined by said Act, shall be used 

only in carrying out the provisions of said Act. 

* * * * * * * 

[Section 5(f).] The lands granted to the State of Hawaii 

by subsection (b) of this section and public lands retained 

by the United States under subsections (c) and (d) and 

later conveyed to the State under subsection (e), together 

with the proceeds from the sale or other disposition of any 

such lands and the income therefrom, shall be held by said 

State as a public trust for the support of the public schools 

and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in 

the Hawaiian Homes Commission Act, 1920, as amended, 

for the development of farm and home ownership on as 

widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. 

Such lands, proceeds, and income shall be managed and 

disposed of for one or more of the foregoing purposes in 

such manner as the constitution and laws of said State 

may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by 

the United States.57

These transfers of Federal authority to the new State were not 

discretionary or permissive. The United States is empowered to sue 

to compel compliance with the terms of the trust. For example, the 

Federal courts have noted that the United States retains the authority to bring an enforcement action against the State of Hawaii 

for breach of the section 5(f) trust.58 Moreover, sections 204 and 

223 of the Hawaiian Homes Commission Act provide that the consent of the Secretary of the Interior must be obtained for certain 


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59With the adoption of its new Constitution, the State of Hawaii assumed the responsibility 

of administering the Ceded Lands in accordance with the five purposes set forth in the Admission Act and of managing the 203,500 acres of land that had been set aside by Congress in 1921 

for the benefit of the native people of Hawaii under the Hawaiian Homes Commission Act. See 

Haw. Const. art. XII, §§ 2, 4; id. art. XVI, § 7. 60 67 Stat. 5884 (1953). 

exchanges of land and reserve to Congress the right to amend that 

Act.59

Treatment of Native Hawaiians compared to other indigenous 

groups 

The Hawaiian Homes Commission Act and the Hawaii Admission 

Act—the most significant actions the United States has taken to 

date in respect to the native people of Hawaii—must be understood 

in the context of the Federal policy towards members of other native groups. 

In 1921, when the Hawaiian Homes Commission Act was enacted 

into law, the prevailing Federal Indian policy was premised upon 

the objective of breaking up Indian reservations and allotting lands 

to individual Indians. Much of the reservation lands remaining 

after the allotment of lands to individual Indians were opened up 

to settlement by non-Indians and significant incentives were authorized to make the settlement of former reservation lands attractive to non-Indian settlers. A 25-year restraint on the alienation of 

allotted lands was typically imposed. This restraint prevented the 

lands from being subject to taxation by the States, but the restraint 

could be lifted if an individual Indian was deemed to be ‘‘civilized.’’ 

Once the restraint on alienation was lifted and individual Indian 

lands became subject to taxation, Indians who could not pay the 

property taxes often had their land seized. 

This ‘‘allotment era’’ in Federal Indian policy was responsible for 

the alienation of more than half of all Indian lands nationwide. 

Nearly 90 million acres of lands fell out of native ownership in less 

than half a century, and although the primary objective of the allotment of lands to individual Indians was to ‘‘civilize’’ native people, in part by making them family farmers, thousands of Indians 

were rendered not only landless but homeless. The fact that the 

United States thought to impose a similar scheme on the native 

people of Hawaii in an effort to ‘‘rehabilitate’’ Native Hawaiians by 

returning them to their land is thus readily understandable in the 

context of the prevailing Federal Indian policy in 1921. 

By 1959, when the State of Hawaii was admitted into the Union, 

the Federal policy toward the native peoples of America was designed to divest the Federal government of its responsibilities for 

the Indian tribes and their members and to transfer many of those 

responsibilities to the several States. A prime example of this Federal policy was the enactment of Public Law No. 83–280,60 an Act 

which vested criminal jurisdiction and certain aspects of civil jurisdiction over Indian lands in certain States. Similarly, in 1959, the 

United States transferred most of its responsibilities related to administering the Hawaiian Homes Commission Act to the new State 

of Hawaii and imposed a public trust upon the lands that were 

ceded to the State for five purposes, one of which was the betterment of the conditions for Native Hawaiians. 


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61 United States v. Lara, 541 U.S. 193, 200 (2004). 62 231 U.S. 28, 46 (1913). 63 United States v. John, 437 U.S. 634, 652–53 (1978); see also Winton v. Amos, 255 U.S. 373, 

378 (1921) (The members of the same recognized tribe at issue in John had ‘‘adopted the dress, 

habits, customs, and manner of living of the white citizens of the state. They had no tribal or 

band organization or laws of their own, but were subject to the laws of the state. They did not 

live upon any reservation, nor did the government exercise supervision or control over them.’’). 64 U.S. Const. art. I, § 8, cl. 3. 65 Id. art. II, § 2, cl. 2; see Lara, 541 U.S. at 200; see also id. (‘‘The central function of the 

Indian Commerce Clause, we have said, is to provide Congress with plenary power to legislate 

in the field of Indian affairs.’’) (internal quotation marks omitted). Although ‘‘[t]he treaty power 

does not literally authorize Congress to act legislatively, for it is an Article II power authorizing 

the President, not Congress, ‘to make Treaties[,]’ . . . treaties made pursuant to that power can 

authorize Congress to deal with ‘matters’ with which otherwise ‘Congress could not deal.’ ’’ Id. 

at 201. 

CONGRESS’S AUTHORITY TO ENACT REORGANIZATION LEGISLATION FOR

THE NATIVE HAWAIIANS

For more than two hundred years, Congress, the Executive 

Branch, and the Supreme Court have recognized certain legal 

rights and protections for America’s indigenous peoples. The United 

States’ interactions with indigenous peoples have varied from 

group to group. Indeed, since the founding of the United States, 

Congress has exercised constitutional authority over indigenous affairs and has undertaken enhanced responsibility for America’s indigenous peoples. This has been done in recognition of the sovereignty possessed by the native groups, which pre-existed the formation of the United States. Congress’s exercise of its constitutional authority is also premised upon the status of the indigenous 

peoples as the original inhabitants of this Nation who occupied and 

exercised dominion and control over the lands which the United 

States subsequently acquired. 

Constitutional sources of Congressional authority to legislate in respect to Native Groups 

It is well-established that ‘‘the Constitution grants Congress 

broad general powers to legislate in respect to Indian tribes, powers that [the Supreme Court has] consistently described as ‘plenary 

and exclusive.’ ’’ 61 As the Court explained in United States v. 

Sandoval, ‘‘in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by 

Congress, and not by the courts,’’ so long as Congress does not use 

this power to ‘‘arbitrarily’’ designate a community or body of people 

an Indian tribe.62 The Supreme Court has upheld Congress’s exercise of this power even in the case of a tribe that the Court assumed had become ‘‘fully assimilated into the political and social 

life of the State,’’ concluding that ‘‘the fact that federal supervision 

over [the tribe] has not been continuous’’ did not ‘‘destroy[] the federal power to deal with them.’’ 63

The Supreme Court has historically located the sources of 

Congress’s Indian affairs powers in the Indian Commerce Clause 64

and the Treaty Clause.65 The Court has also recognized that insofar as Indian affairs were traditionally an aspect of military and 

foreign policy, ‘‘Congress’ legislative authority would rest in part, 

not upon ‘affirmative grants of the Constitution,’ but upon the Constitution’s adoption of preconstitutional powers necessarily inherent 


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66 Id. 67 Board of County Comm’rs of Creek County v. Seber, 318 U.S. 705, 715 (1943). 68 Id. 69 United States v. Sandoval, 231 U.S. 28, 45–46 (1913); see United States v. Kagama, 118 U.S. 

375, 384–85 (1886) (‘‘From [the Indians’] very weakness[,] so largely due to the course of dealing 

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

arises the duty of protection, and with it the power. . . . It must exist in that government, because it never has existed anywhere else; because the theater of its exercise is within the geographical limits of the United States; because it has never been denied; and because it alone 

can enforce its laws on all the tribes.’’). 70Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). 71 Id. at 559–60. 72 United States v. Antelope, 430 U.S. 641, 646 (1972); see Fisher v. District Ct. of Sixteenth 

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

(1974); see also Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993); United 

States v. Mazurie, 419 U.S. 544, 557 (1975). 73 25 U.S.C. § 476(a). 

in any Federal Government, namely, powers that this Court has 

described as ‘necessary concomitants of nationality.’ ’’ 66

In addition, the ‘‘existence of federal power to regulate and protect the Indians and their property’’ is implicit in the structure of 

the Constitution.67 ‘‘In the exercise of the war and treaty powers, 

the United States overcame the Indians and took possession of 

their lands, sometimes by force, leaving them . . . needing protection. . . . Of necessity the United States assumed the duty of furnishing that protection, and with it the authority to do all that was 

required to perform that obligation.’’ 68 Thus, ‘‘[n]ot only does the 

Constitution expressly authorize Congress to regulate commerce 

with the Indian tribes, but long continued legislative and executive 

usage and an unbroken current of judicial decisions have attributed 

to the United States . . . the power and the duty of exercising a 

fostering care and protection over all dependent Indian communities.’’ 69

Although the aboriginal ‘‘tribes,’’ ‘‘nations,’’ or ‘‘peoples,’’ over 

which Congress exercised its Indian affairs authority, were defined 

in part by common ancestry, the unique constitutional significance 

of such entities derives from their separate existence as ‘‘independent political communities.’’ 70 Native peoples and groups were 

‘‘nations,’’ 71 and the relationship between the United States and 

the natives reflected a political settlement between sovereigns. The 

Supreme Court has thus repeatedly made clear that Indian tribes 

are the political and familial heirs to ‘‘once-sovereign political communities,’’ not ‘‘racial group[s].’’ 72

Congress has frequently enacted legislation that provides for the 

reorganization of Indian tribes, via an election organized by the 

Secretary of the Interior and the recognition of native sovereigns 

pursuant to its Indian affairs powers. For example, the Indian Reorganization Act of 1934 provides that ‘‘[a]ny Indian tribe shall 

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

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

of the tribe or tribes at a special election authorized and called by 

the Secretary [of the Interior] under such rules and regulations as 

the Secretary may prescribe; and (2) approved by the Secretary. 

. . .’’ 73

Similarly, Congress has on numerous occasions enacted specific 

statutes that ‘‘restore’’ Federal recognition of previously ‘‘terminated’’ tribes. There are many tribal restoration acts throughout 

Title 25 of the U.S. Code, involving interim council elections set up 


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74See 25 U.S.C. 711 75See Ex Parte Crow Dog, 109 U.S. 556, 568 (1883) (discussing a Federal pledge in a treaty 

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

and enacted’’). 76See Fletcher v. United States, 116 F.3d 1315, 1327 (10th Cir. 1997) (discussing approvingly 

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

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

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

four years to fill those offices’’). 77 U.S. Const. art. I, § 8, cl. 3. 78See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544 (1832) (referring to Indians as ‘‘those 

already in possession [of the land], either as aboriginal occupants, or as occupants by virtue of 

a discovery made before the memory of man’’); Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 

572–74 (1823) (referring to Indians as ‘‘original inhabitants’’ or ‘‘natives’’ who occupied the New 

World before discovery by ‘‘the great nations of Europe’’). 79See also Worcester, 31 U.S. (6 Pet.) at 559 (equating Indian tribe and Indian nation and 

defining ‘‘nation’’ as a ‘‘people distinct from others’’); id. at 583 (Indians are ‘‘a separate and distinct people’’). 80 42 U.S.C. § 11701(1); 20 U.S.C. § 7512(1). 

and run by the Secretary, with participation based on statutory criteria that include lineal descent or required ancestry, as well as 

other indicia of connection to the community. Some of these statutes establish a process for nominating and electing members of an 

interim council or body that has responsibility for functioning as 

the acting tribal government and developing proposed constitution 

and bylaws to be voted on by the members in an election conducted 

by the Secretary.74 And courts have referred approvingly to treaties 

or laws that promise to provide for tribal self-government,75 as well 

as statutes that prescribe in detail the structure and operation of 

tribal governments.76

Native Hawaiians and the meaning of ‘‘Indian Tribes’’ 

Like the previous Congresses that have enacted legislation for 

the benefit of Native Hawaiians, this Committee concludes that the 

Native Hawaiians are a distinctly native community that falls 

within the scope of Congress’s power to legislate in respect to ‘‘Indian Tribes.’’ 77 The term ‘‘Indian’’ was first applied by Columbus 

to the native peoples of the New World based on the mistaken belief that he had found a sea route to India. The term has been understood ever since to refer to the indigenous peoples who inhabited the New World before the arrival of the Europeans.78 As the 

original, aboriginal occupants of Hawaii before the arrival of the 

Europeans, the Native Hawaiians fall within the scope of the term 

‘‘Indian’’ as used in the Federal Constitution. 

To the framers of the Constitution, an Indian tribe simply meant 

a distinct group of indigenous people set apart by their common circumstances.79 Because Native Hawaiians today have a direct historic, cultural, and land-based link to the indigenous people who inhabited and exercised sovereignty over the Hawaiian Islands before 

the first European contact in 1778, and because they are determined to preserve and to pass on to future generations their native 

lands and their distinct culture, the Native Hawaiian community 

falls squarely within the scope of Congress’s power to legislate in 

respect to ‘‘Indian Tribes.’’ 

Indeed, as the 1993 Apology Resolution and other recent Federal 

statutes extending educational and health benefits to Native Hawaiians make clear, Congress has found that: (1) Native Hawaiians 

are ‘‘a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago’’; 80

(2) Native Hawaiians exercised sovereignty over the Hawaiian IsVerDate Nov 24 2008 00:19 Mar 17, 2010 Jkt 089010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX SR162

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81 20 U.S.C. § 80q–14(11). 82 107 Stat. 1510, 1513 (1993). 83 Id. at 1512. 84 Id. 85 Id. at 1512–13. 86Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 

664 (1979) (footnote omitted). 87 437 U.S. 634 (1978). 88Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823); Cherokee Nation v. Georgia, 30 

U.S. (5 Pet.) 1, 45 (1831). 89 United States v. Antelope, 430 U.S. 641, 646 (1972). 90 Board of County Comm’rs of Creek County v. Seber, 318 U.S. 705, 715 (1943); United States 

v. Sandoval, 231 U.S. 28, 45–46 (1913); United States v. Kagama, 118 U.S. 375, 383–84 (1886). 

lands; 81 (3) the overthrow of the Kingdom of Hawaii was ‘‘illegal’’ 

and deprived Native Hawaiians of their right to ‘‘self-determination’’; 82 (4) the government installed after the overthrow ceded 1.8 

million acres of land to the United States ‘‘without the consent of 

or compensation to the Native Hawaiian people of Hawaii or their 

sovereign government’’; 83 (5) ‘‘the indigenous Hawaiian people 

never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United 

States’’; 84 and (6) ‘‘the Native Hawaiian people are determined to 

preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with their 

own spiritual and traditional beliefs, customs, practices, language, 

and social institutions.’’ 85

Those findings demonstrate that indigenous Hawaiians, like numerous tribes in the continental United States, share historical and 

current bonds within their community. Also like tribes in the continental United States, Native Hawaiians, pursuant to Acts of Congress, have substantial lands set aside for their benefit: 200,000 

acres of Homes Commission Act land on which there are thousands 

of leases to Native Hawaiians that furnish homes to tens of thousands of Hawaiians, and an interest in the income generated by 1.2 

million acres of public trust lands under the Admission Act. 

The fact that the indigenous Hawaiian community does not presently have an operating tribal government recognized by the Department of the Interior does not remove that community from the 

scope of Congress’s Indian affairs power. The Constitution does not 

limit Congress’s Indian affairs power to groups with a particular 

government structure. ‘‘[S]ome bands of Indians, for example, had 

little or no tribal organization while others . . . were highly organized.’’ 86 For example, in United States v. John, the Court upheld 

Congress’s power to provide for a group of Indians that did not 

have a Federally recognized tribal government, even though Federal supervision had lapsed and a measure of assimilation had occurred.87 Nor does the Constitution limit Congress’s power to 

groups that continue to exercise all aspects of sovereignty. European ‘‘discovery’’ and the establishment of the United States necessarily diminished certain aspects of Indian sovereignty.88 Thus, 

under the Constitution, ‘‘Federal regulation of Indian tribes . . . is 

governance of once-sovereign political communities.’’ 89

As noted above, the United States’ authority over Indian affairs 

does not emanate simply from the Commerce Clause’s reference to 

‘‘Indian Tribes.’’ Rather, the Constitution implicitly gives Congress 

power to manage Indian affairs more generally. 90 That power is 

not limited to native groups that exhibit formal governmental 

structures of modern sovereigns. The sovereignty of an indigenous 


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91 Cf. 25 C.F.R. 83.7(c) (discussing political and comparable activity as a criterion for Interior 

Department acknowledgment). 92 53 I.D. 593, 605, 1 Op. Sol. On Indian Affairs 303, 310 (1932). 93 25 U.S.C. § 479. In 1936, Congress amended the Indian Reorganization Act to allow qualifying Alaska Native villages to reorganize under that Act. See 25 U.S.C. § 473a. 94 In 1993, the Department of the Interior included Alaska Native villages on the revised list 

of Federally recognized tribes. Indian Entities Recognized and Eligible To Receive Services From 

the United States Bureau of Indian Affairs, 58 Fed. Reg. 54,364 (Oct. 21, 1993). 95See S. Rep. 107–66, at 35 nn.43–44 (2001). 96 Jon M. Van Dyke, The Political Status of Native Hawaiian People, 17 Yale L. & Pol’y Rev. 

95, 146 (1998) (citing Alaska Pac. Fisheries v. United States, 248 U.S. 78 (1918); Native Village 

of Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992); Alaska Chapter, Assoc. Gen. Contractors of 

people may be expressed through informal structures, as well as 

through a formal government. And the loss of a formal government 

does not preclude future expression of sovereignty through some 

formal governmental structure. In the case of Native Hawaiians, a 

variety of Native Hawaiian organizations have continued to be active in a broad range of native political, cultural, religious, legal, 

and land-related matters, and furnish vehicles for the expression of 

self-determination over important aspects of Hawaiian affairs, and 

form an active ‘‘political’’ community.91

Also instructive is Federal legislation concerning Alaska Natives, 

which reflects Congress’s intent to exercise its constitutional power 

and responsibility regarding all the Native American groups within 

the United States. In January 1932, Representative Howard, 

Chairman of the House Indian Affairs Committee, wrote to Secretary of the Interior Wilbur seeking an opinion on the legal status 

of Alaska Natives. In response, Interior Solicitor Finney issued a 

comprehensive opinion, which Secretary Wilbur forwarded to 

Chairman Howard in March 1932. Finney concluded his opinion by 

stating: ‘‘[I]t is clear that no distinction has been made between the 

Indians and other natives of Alaska so far as the laws and relations of the United States are concerned whether the Eskimos and 

other natives are of Indian origin or not[,] as they are all wards 

of the Nation, and their status is in material respects similar to 

that of the Indians of the United States.’’ 92

In 1934, when Congress passed the Indian Reorganization Act, 

the landmark legislation intended to revitalize tribes’ governmentto-government relationship with the United States, it defined ‘‘Indian’’ to include all aboriginal people of Alaska, even though Congress knew that Alaska’s aboriginal population included Eskimos 

and Aleuts, two distinct cultural and ethnic groups, as well as Indians similar to those in the contiguous 48 States.93

Like Native Hawaiians, the Eskimo peoples are linguistically, 

culturally, and ancestrally distinct from other American ‘‘Indians.’’ 

Yet Native Alaskan villages are Federally recognized tribal entities 

within Congress’s Indian affairs authority.94 Modern scholars typically do not use the word ‘‘Indian’’ to describe Eskimos or the word 

‘‘tribe’’ to describe their nomadic family groups and villages. But 

the Constitution’s Framers would not have recognized these kinds 

of distinctions. To them, ‘‘Indians’’ were many peoples, with distinct 

languages, cultures, and sociopolitical organizations; but for all 

their distinct cultures and governments, they were all ‘‘Indians,’’ 

because they were aboriginal inhabitants of the ‘‘New World.’’ Because Eskimos—like Native Hawaiians—were aboriginal peoples, 

they too would therefore have been considered ‘‘Indians.’’ 95 Courts 

have supported this construction by recognizing ‘‘that the term ‘Indians’ includes all native people in the United States.’’ 96


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Am. v. Pierce, 694 F.2d 1162 (9th Cir. 1982); Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976); Alaska v. Annette Island Packing Co., 289 F. 671 (9th Cir. 1923); Cape Fox Corp. v. United States, 

4 Cl. Ct. 223 (1983); Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979); Eric v. HUD, 

464 F. Supp. 44 (D. Alaska 1978); Naliielua v. State of Hawaii, 795 F. Supp. 1009 (D. Haw. 

1990); Ahuna v. Department of Hawaiian Home Lands, 640 P.2d 1161, 1168–69 (Haw. 1982)). 97 528 U.S. 495 (2000). 98 Id. at 518. 99See id. 100 Id. at 519. 101 Id. at 520, 522. 102The Court explained that ‘‘[i]f a non-Indian lacks a right to vote in tribal elections, it is 

for the reason that such elections are the internal affair of a quasi sovereign;’’ the Court did 

not need to rule on the applicability of that principle to Native Hawaiians, because it concluded 

that the election was conducted by the State of Hawaii rather than by any such recognized quasi 

sovereign entity. Id. at 520. 

Although these general principles governing Congress’s power 

over Indian affairs are well established in Supreme Court decisions, the Court has never specifically considered the application of 

those principles to Native Hawaiians. Most recently, in Rice v. 

Cayetano,97 the Court called that question ‘‘a matter of some dispute,’’ which it did not need to decide in that case.98 Indeed, the 

Court specifically reserved a number of other important questions 

in that case, such as the extent to which Congress had already exercised or delegated such powers.99 The Court made clear that its 

opinion ‘‘stay[ed] far off that difficult terrain.’’ 100 Thus, although 

the Court struck down a Hawaii law limiting eligibility to vote in 

elections for trustee of the State Office of Hawaiian Affairs (OHA), 

it did so because OHA ‘‘is a state agency’’ and the elections were 

‘‘elections of the State, not of a separate quasi sovereign.’’ 101 The 

elections therefore had to be open to all citizens of the State of Hawaii who were otherwise eligible to vote in statewide elections.102

By resolving the case on that ground, the Court did not need to 

reach any question about Congress’s authority to treat Native Hawaiians the same way it treats Indian tribes on the continental 

United States. Nor has the Court returned to the issue since. 

NEED FOR LEGISLATION

The primary goal of S. 1011 is to establish a process for the reorganization of a Native Hawaiian government and to reaffirm the 

special political and legal relationship between the United States 

and the Native Hawaiian governing entity for purposes of carrying 

on a government-to-government relationship. Congress has consistently recognized Native Hawaiians as among the native peoples of 

the United States on whose behalf it may exercise its powers under 

the Indian Commerce Clause and other relevant provisions of the 

Constitution. But Congress has not yet acted to provide a process 

for reorganizing a Native Hawaiian governing entity. 

That inaction has placed Native Hawaiians at a unique disadvantage. Of the three major groups of Native Americans in the 

United States—American Indians, Alaska Natives, and Native Hawaiians—only Native Hawaiians currently lack the benefits of 

democratic self-government. In earlier eras, similar deprivations 

wreaked havoc on countless American Indians and Alaska Natives. 

As President Obama recently stated, ‘‘History has shown that failure to include the voices of tribal officials in formulating policy afVerDate Nov 24 2008 00:19 Mar 17, 2010 Jkt 089010 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX SR162

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103Memorandum of November 5, 2009—Tribal Consultation, 74 Fed. Reg. 57,881, 57,881 (Nov. 

9, 2009). 104 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987) (citing New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334–35 (1983); Iowa Mut. Ins. Co. v. LaPlante, 480 

U.S. 9 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980)) (internal 

quotation marks omitted). 105 Joseph P. Kalt, Constitutional Rule and the Effective Governance of Native Nations, in 

American Indian Constitutional Reform and the Rebuilding of Native Nations 184 (Eric D. 

Lemont ed., 2006). 106Stephen Cornell & Joseph P. Kalt, Sovereignty and Nation Building: The Development 

Challenge in Indian Country Today, 22 Amer. Indian Culture & Res. J. 187, 212 (1998); Charles 

Wilkinson, Blood Struggle: The Rise of Modern Indian Nations 271 (2005) (‘‘Experience in Indian economic development . . . has shown that strong and effective tribal governments, anchored in tribal culture, are critical for economic progress.’’). 

fecting their communities has all too often led to undesirable and, 

at times, devastating and tragic results.’’ 103

For nearly a half century now, Congress has pursued a strong 

policy of Indian self-determination and self-government, with the 

‘‘overriding goal of encouraging tribal self-sufficiency and economic 

development.’’ 104 The results of that policy have been striking. As 

the co-director of the Harvard Project on American Indian Economic Development recently wrote, ‘‘the evidence is overwhelming 

that political self-rule is the only policy’’ that has succeeded in 

overcoming Native Americans’ ‘‘social, cultural, and economic destruction.’’ 105 For Native Americans, economic development ‘‘is first 

and foremost a political problem. At the heart of it lie sovereignty 

and the governing institutions through which sovereignty can be effectively exercised.’’ 106 By establishing a process that would lead to 

the reorganization of a sovereign Native Hawaiian government, S. 

1011 will finally put Native Hawaiians on a par with other Native 

Americans, giving them equal access to the benefits of accountable, 

local, democratic self-rule. 

The Committee recognizes that there is a Federal Acknowledgment Process defined by the Department of the Interior’s regulations in 25 CFR Part 83. However, these regulations exclude Native Hawaiians. Thus, legislation is the only mechanism available 

for Congress to recognize Native Hawaiians at this time. 

LEGISLATIVE HISTORY

S. 1011 was introduced on May 7, 2009, by Senator Akaka for 

himself and Senator Inouye, and referred to the Committee on Indian Affairs. Senators Dorgan, Begich, and Murkowski became cosponsors on August 5, 2009. A hearing was held before the Committee on Indian Affairs on August 6, 2009. On December 17, 2009, 

the bill was ordered by the Committee to be favorably reported 

with an amendment in the nature of a substitute. Other versions 

of the bill, S. 381 and S. 708, were introduced but not considered 

by the Committee. 

A House companion measure to S. 1011, H.R. 2314, was introduced on May 7, 2009, by Representative Abercrombie for himself 

and Representative Hirono, and referred to the Committee on Natural Resources. The Natural Resources Committee met to consider 

the bill on June 11, 2009. On December 16, 2009, the bill was favorably reported without amendment to the House of Representatives by the Yeas and Nays 26–13. On February 23, 2010, the 

House of Representatives considered H.R. 2314 and passed by the 

Yeas and Nays 245–164 with an amendment in the nature of a 

substitute offered by Representative Abercrombie. Other versions 


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of the bill, H.R. 862 and H.R. 1711, were introduced but not considered by the Natural Resources Committee. 

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

A number of amendments were made to S. 1011, all of which 

were included in a substitute amendment accepted by the Committee on December 17, 2009. These changes were made to address 

concerns with the legislation, a number of which were raised by the 

Attorney General of the State of Hawaii, to further refine the process for reorganization, and to clarify definitions, among other issues. The Committee expects the language will continue to be modified to bring clarity to some issues. 

Section 1. Short title 

Section 1 was not amended. 

Section 2. Findings 

The findings of the underlying bill were amended to reaffirm the 

authority of Congress to legislate on behalf of Native Hawaiians as 

a distinctly native community. Congress exercised this authority in 

enacting the Hawaiian Homes Commission Act (HHCA) to set aside 

land for Native Hawaiians. The changes in the substitute amendment reflect the Native Hawaiian people’s active commitment to 

maintaining their native traditions, their connection to the indigenous people who exercised sovereignty over the Hawaiian Islands, 

and the courts’ recognition of their ability to engage in certain customary practices on public lands. Because the Native Hawaiian 

people have steadfastly maintained their native traditions and customary practices since the overthrow of the Kingdom of Hawaii in 

1893, there is continuity between the native citizens of the Kingdom of Hawaii and their successors, the Native Hawaiian people 

today. 

Section 3. Definitions 

Section 3, was amended to redefine those eligible to participate 

in the reorganization of the Native Hawaiian governing entity. The 

definitions of ‘‘adult member’’ and ‘‘Native Hawaiian’’ were struck 

and incorporated into the new definition of ‘‘qualified Native Hawaiian constituent’’. ‘‘Native Hawaiian programs or services’’ was 

also struck from the section on definitions. 

The term ‘‘Native Hawaiian membership organization’’ was 

added to identify organizations through which Native Hawaiians 

have sought to preserve their culture, native traditions, and selfgovernance. These organizations are an important, though not the 

exclusive, means through which Native Hawaiians have succeeded 

in maintaining their native traditions and culture, and in giving 

expression to their rights to self-determination and self-governance. 

Indeed, Congress has relied on such organizations to function as official representatives of the Native Hawaiian community in other 

Federal laws. In the Native American Graves Protection and Repatriation Act (NAGPRA), for example, Native Hawaiian organizations function as representatives of the Native Hawaiian community with respect to the treatment and protection of Native Hawaiian remains and funerary objects, just as Federally recognized InVerDate Nov 24 2008 00:19 Mar 17, 2010 Jkt 089010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX SR162

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107See 25 U.S.C. §§ 3001–3013. 108 ‘‘Kuleana land’’ is defined as ‘‘lands granted to native tenants pursuant to Haw. L. 1850, 

p. 202, entitled ‘An Act Confirming Certain Resolutions of the King and Privy Council Passed 

on the 21st day of December, A.D. 1849, Granting to the Common People Allodial Titles for 

Their Own Lands and House Lots, and Certain Other Privileges’, as amended by Haw. L. 1851, 

p. 98, entitled ‘An Act to Amend An Act Granting to the Common People Allodial Titles for 

Their Own Lands and House Lots, and Certain Other Privileges’ and as further amended by 

any subsequent legislation.’’ Kuleana lands are parcels of land granted to native Hawaiian tenant farmers between 1850 and 1855. From 1845 to 1848, in what is known as the Great Mahele, 

King Kamehameha III divided up land among the Kingdom, high-ranking chiefs, and the territorial government, subject to the rights of the native tenants. Law of June 7, 1848, reprinted 

in 2 Rev. Laws Haw. 2152, 2174 (1925); Mauka to Makai Report, supra note 24. The Act of 

Aug. 6, 1850 (the Kuleana Act) provided a process by which native tenants who had occupied 

and improved the land could apply to the Land Commission for a royal patent and obtain fee 

title to those parcels of land. Id. at 24. Less than 30,000 acres of land were awarded under the 

Kuleana Act. Cohen’s Handbook, supra note 9, § 4.07[4][b], at 367 (citing Jon Chinen, The Great 

Mahele: Hawaii’s Land Division 31 (1958)). 109 Any person who has been a member since September 30, 2009, of two or more Native Hawaiian membership organizations would satisfy the requirement of maintaining a significant 

cultural, social, or civic connection to the Native Hawaiian community. 110To execute a sworn affidavit stating that a person is, and his or her mother or father is 

or was, regarded as Native Hawaiian by the Native Hawaiian community, the affiant must himself or herself be a ‘‘qualified Native Hawaiian constituent’’ and also must be certified by the 

Commission as ‘‘possessing expertise in the social, cultural, and civic affairs of the Native Hawaiian community.’’ The Commission should construe the latter phrase broadly, to include elders or kupuna; heads of extended families; cultural practitioners; leaders and long-standing 

members of Native Hawaiian political, civic, cultural, artistic, literary, spiritual, or social organizations; teachers or scholars of Native Hawaiian studies, language, or history; and any other 

qualified Native Hawaiian constituent who understands, has daily interactions with, and is involved with the social, cultural, or civic life of the Native Hawaiian community. 

dian tribes represent their communities with respect to Indian remains and objects.107

The definition of ‘‘qualified Native Hawaiian constituent’’ was 

added to require not only descent from the aboriginal, indigenous, 

native inhabitants of Hawaii, but also maintenance of ‘‘a significant 

cultural, social, or civic connection to the Native Hawaiian community.’’ 

An individual must demonstrate this connection by satisfying at 

least two of ten listed criteria, which include, among others, residence in Hawaii, residence on Hawaiian Homes Commission Act 

lands (or status as the child or grandchild of such a resident), eligibility to be a beneficiary of Hawaiian Homes Commission Act programs, status as the child or grandchild of a person with such eligibility, residence or ownership interest in ‘‘kuleana land’’ 108 that is 

owned in whole or in part by a verified lineal descendant of the 

person who received original title to such land (or status as a child 

or grandchild of a person with such a residence or ownership interest), attendance for at least one school year at a school or program 

taught through the medium of the Hawaiian language or at a 

school founded and operated primarily or exclusively for the benefit 

of Native Hawaiians (or status as the child or grandchild of a person who attended such a program for at least one school year), 

membership in a Native Hawaiian organization,109 or recognition 

as Native Hawaiian and as the son or daughter of a person recognized as Native Hawaiian by certain other members of the Native 

Hawaiian community.110 The inclusion of these criteria will provide 

that the persons who participate in the reorganization of the Native Hawaiian governing entity are persons with Native Hawaiian 

ancestry who have established ties to the Native Hawaiian community. 

There is precedent for using associative factors such as kinship, 

land, and participation in native organizations to determine tribal 


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111See, e.g., 25 CFR § 83.7(b)(1)(vii), (2)(iv) (including ‘‘language’’ and ‘‘kinship organization[s]’’ 

among the criteria the Department of the Interior considers in determining whether petitioning 

tribes can establish that they are a distinct community). In its tribal acknowledgment process, 

the Department of the Interior has repeatedly relied on participation in community organizations as an important indicator of the existence of a distinct community. Activities that the Department has cited in support of the existence of a community include churches, organizations 

devoted to management of group cemeteries, the existence of organized social functions or collective economic activity, and organized participation in political activities and debate. Branch of 

Acknowledgment & Research, U.S. Dep’t of the Interior, Acknowledgment Precedent Manual 26– 

32 (Draft, Mar. 1, 2002) [hereinafter Acknowledgment Precedent Manual]. For example, in concluding that it was appropriate to acknowledge the Jena Band of Choctaw Indians as a sovereign tribe, the Department cited, among other considerations, the Band’s collective maintenance of a cemetery and associated traditional practices, and the existence of a tribal organization that ‘‘conducts Choctaw language and history classes at the tribal center after school hours 

and during the summer.’’ Proposed Finding for Federal Acknowledgment of the Jena Band of 

Choctaw Indians, 59 Fed. Reg. 54,496 (Oct. 31, 1994); see also Final Determination for Federal 

Acknowledgment of the Jena Band of Choctaw Indians, 60 Fed. Reg. 28,480 (May 31, 1995) 

(final acknowledgment). Likewise, the ability of leaders to organize a community to address a 

particular issue has been cited as evidence of the existence of internal political organization, another criterion for acknowledgment. For example, the Acknowledgment Precedent Manual cites 

the ability of a Narragansett leader to organize opposition to the draining of a cedar swamp 

as evidence supporting acknowledgment of that group. Acknowledgment Precedent Manual, 

supra, at 40. 112See, e.g., Alaska Native Claims Settlement Act, 43 U.S.C. § 1602(b) (ANCSA). 113See United States v. Sandoval, 231 U.S. 28, 46 (1913) (referring to ‘‘distinctly Indian communities’’); see also United States v. Chavez, 290 U.S. 357, 363 (1933) (same); United States v. Candelaria, 271 U.S. 432, 439 (1926) (same). 114See, e.g., Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. 

§ 450a(a) (recognizing the United States’ obligation to advance Indian ‘‘self-determination by assuring maximum Indian participation in the direction of . . . Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities’’); Indian Financing Act of 1974, 25 U.S.C. § 1451 (expressing Congress’s policy ‘‘to help 

develop and utilize Indian resources . . . to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources’’); see also Exec. Order No. 

13,175, 59 Fed. Reg. 22,951 (Nov. 9, 2000) (‘‘The United States recognizes the right of Indian 

tribes to self-government and supports tribal sovereignty and self-determination.’’). 

membership.111 The last criterion, recognition as Native Hawaiian 

by the Native Hawaiian community, is also akin to criteria used to 

define membership in a native community in other contexts.112 The 

definition of ‘‘qualified Native Hawaiian constituent’’ will ensure 

that the persons who participate in the reorganization of the governing entity demonstrate a significant cultural, social, or civic connection to the Native Hawaiian community and further ensures 

that the Native Hawaiian governing entity will represent a distinctly Native American community.113

Section 4. United States policy and purpose 

Section 4 was amended to further enumerate portions of the Constitution from which Congress derives its authority to deal with 

Native Hawaiians. 

The purpose of the Act is to provide a process for the reorganization of a single Native Hawaiian governing entity and the reaffirmation of the special political and legal relationship between the 

United States and that Native Hawaiian governing entity for purposes of continuing a government-to-government relationship. In 

acting to promote Native Hawaiian autonomy and self-government, 

Congress is acting in accord with the United States’ policy over the 

last several decades toward Indian tribes and Native Americans 

generally.114

Section 5. United States Office for Native Hawaiian Relations 

Section 5 was amended to require timely notice and consultation 

between the Native Hawaiian governing entity and the United 

States Office for Native Hawaiian Relations before beginning any 


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action that may affect Native Hawaiian resources, rights, or lands. 

This section also contained some technical amendments. 

Section 6. Interagency Coordinating Group 

Section 6 was amended to add the White House Office of Intergovernmental Affairs as a co-leader of the Interagency Coordinating Group. 

The entities established in sections 5 and 6 provide advice and 

consultation during the formation of the Native Hawaiian governing entity and after its recognition by the United States. The 

nature and form of the consultation between these entities is expected to parallel the consultation process for Indian tribes, which 

is guided by the requirements of Executive Order 13175 and by the 

President’s November 5, 2009 memorandum on the implementation 

of that Order. Executive Order 13175 requires that Federal agencies have in place a process to allow meaningful input from tribes 

in the development of regulations and policies that have significant 

implications for tribes. The Committee anticipates that the consultation envisioned by sections 5 and 6 will proceed in a similar 

manner with regard to the Native Hawaiian governing entity. 

Section 7. Department of Justice representative 

Section 7 is a new section which requires a Department of Justice official to assist the Office for Native Hawaiian Relations in 

the implementation and protection of the rights of Native Hawaiians and the Native Hawaiian governing entity. The Department of 

Justice already has an office that performs a similar function with 

respect to the Department’s relationship with Indian tribes, the Office of Tribal Justice. The Committee anticipates that the official 

designated under this section will carry out his or her functions in 

a similar manner. 

Section 8. Process for reorganization and federal recognition 

All portions of section 8 were amended to reflect the definition 

changes in section 3. Section 8 was originally section 7 in the introduced version. 

The underlying bill establishes a Commission to prepare and 

maintain a roll of the ‘‘qualified Native Hawaiian constituents’’ who 

elect to participate in the reorganization of a single Native Hawaiian governing entity. In section 8(b)(2), the section defining the 

membership of the Commission, the substitute amendment allows 

for traditional cultural experience to be considered in looking at 

candidates for appointment to the Commission. 

Section 8(c)(1), entitled ‘‘Roll’’, was amended to allow a presumption of meeting the lineal descent requirement for an individual 

presenting evidence that he or she satisfies the definition in Section 2 of Public Law 103–150, the Apology Resolution. It was also 

amended to allow an individual’s lineal ancestors on the 1890 census by the Kingdom of Hawaii shall to be considered reliable proof 

of lineal descent from the aboriginal, indigenous, native people who 

resided in the islands that now comprise the State of Hawaii on or 

before January 1, 1893. The substitute amendment further adds a 

provision to allow elderly Native Hawaiians and others lacking 

birth certificates or other documentation to establish lineal descent 


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by sworn affidavits from two or more qualified Native Hawaiian 

constituents. 

This subsection was further amended to establish a process to 

ensure authenticity of submitted documents and inform an individual whether they have been deemed a qualified Native Hawaiian constituent and of their right to appeal if they were not. A provision outlining the Secretary’s failure to act regarding publication 

of the roll was struck in the substitute amendment. The notice of 

certification of the roll will be published in the Federal Register by 

the Commission, regardless of pending appeals. Additional amendments require the Secretary, in consultation with the Commission, 

to establish an Administrative appeals process. The Commission 

must provide a copy of the roll and any updated rolls to the Council. 

Section 8(c)(2), renamed ‘‘Organization of Council,’’ was amended 

to require the Commission, in consultation with the Secretary, to 

hold a minimum of three meetings of at least two working days of 

the qualified Native Hawaiian constituents listed on the roll to develop criteria for candidates, determine the structure of the Council, including the number of Council members, and to elect Council 

members from the individuals listed on the roll. 

The section was further amended to require the Council to perform certain duties as opposed to simply permitting the Council to 

perform such duties. These duties include representing those listed 

on the roll, conducting a referendum of those individuals as to the 

governing documents of the Native Hawaiian governing entity, developing proposed organic documents based on that referendum, 

and publishing notice of the availability of such documents. The 

Council may ask the Secretary to ensure that draft organic governing documents comply with this Act and Federal law. 

Additional subsections were added to this section to require the 

Council, with assistance of the Secretary, to hold elections for the 

purpose of ratifying the proposed organic government documents 

not sooner than 180 days after the documents are drafted and distributed and 60 days after publishing notice of an election. 

Upon certification of the organic governing documents by the 

Secretary, the Council, with the assistance of the Secretary, is now 

required to hold elections of the officers of the Native Hawaiian 

governing entity. In the introduced version, the Council was merely 

permitted to hold these elections. In addition, the Secretary must, 

within 180 days of the Council’s submission of the organic governing documents, which may be extended an additional 90 days 

if the Secretary deems necessary, certify or decline to certify that 

the documents establish membership criteria for the Native Hawaiian governing entity, were adopted by a majority of those listed on 

the roll who voted in the election, and provide for the exercise of 

inherent and other appropriate governmental authorities by the 

Native Hawaiian governing entity. The certifications will be 

deemed to have been made if the Secretary does not act within 180 

days after the date of the Council’s submission of the organic governing documents to the Secretary. The introduced version of the 

bill gave the Secretary 90 days. 

Additional subsections were added by the substitute amendment 

to require the Council to provide a copy of the roll to the governing 

body of the Native Hawaiian governing entity and to terminate the 


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115See, e.g., 25 U.S.C. § 711b(a), (b). 

Council after the officers of the governing body are elected and installed. 

The final subsection of section 8 was amended to clearly state 

that the special political and legal relationship between the United 

States and the Native Hawaiian people is reaffirmed and Federal 

recognition is extended to the Native Hawaiian governing entity as 

the representative sovereign body of the Native Hawaiian people. 

This occurs only after approval of the organic governing documents 

by the Secretary and installation of the officers of the governing 

body except where expressly limited. The Committee expects the 

Native Hawaiian governing entity to have the same aspects of sovereignty as other native groups and Indian tribes that have received Federal recognition. 

Congress has a long history of enacting such legislation under its 

Indian affairs power. S. 1011’s process for recognizing a Native Hawaiian governing entity is analogous to the process established by 

prior tribal-reorganization legislation, and is also analagous to the 

process by which the United States recognizes Indian tribes. For 

example, S. 1011 would establish a roll of Native Hawaiian constituents that would define those individuals who are qualified to 

participate in reorganizing the Native Hawaiian governing entity 

based on lineal descent and continued connection to the Native Hawaiian community and Native Hawaiian lands. 

The Commission is expected to be an expert body, with particular 

expertise in Native Hawaiian genealogy and culture. The Committee recognizes that the task of compiling a roll of qualified Native Hawaiian constituents is likely to be complex and may require 

technical decisions as to which individuals have a sufficient connection to the Native Hawaiian community, based on the criteria set 

forth in this legislation. The Committee expects that courts and 

government agencies will accord significant deference to the Commission’s expert decisions and will allow the Commission to make 

eligibility decisions in the first instance. There is a provision in 

Section 8(c) for an administrative appeal for any person whose 

name is excluded from the roll. 

Moreover, the Committee emphasizes that the Commission is expected to complete a roll of qualified Native Hawaiian constituents 

without delay, to allow the organizing process to proceed on schedule. The Committee anticipates that the Commission will establish 

appropriate deadlines, rules of procedure, and other requirements 

to allow the timetables set forth in this legislation to be met while 

giving due consideration to the claims of those seeking to be included on the roll. The sole purpose of the roll established by the 

Commission is to compile a list of those qualified Native Hawaiian 

constituents who can take part in the initial reorganization of a 

Native Hawaiian government. Prior tribal-restoration acts have 

similarly relied on an initial roll in determining eligibility to participate in tribal-reorganization elections.115

The substitute amendment permits elderly Native Hawaiians 

and other qualified Native Hawaiian constituents lacking birth certificates or other documentation due to birth on Hawaiian Home 

Lands or other similar circumstances to establish lineal descent by 

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116See id. § 476(a) (noting that special elections for ratifying tribal constitutions and bylaws 

may be ‘‘authorized and called by the Secretary [of the Interior] under such rules and regulations as the Secretary may prescribe . . . .’’); id. §§ 711a–711f. 

stituents. This provision was included to address cases of hardship, 

and is not expected to be applied routinely. The Committee anticipates that the Commission will establish specific prerequisites allowing individuals to demonstrate that they are unable to obtain 

a birth certificate. 

In general, Section 8 calls for the Federal Government to play a 

relatively minor role in setting the rules for the election of officers 

of the Native Hawaiian governing entity. In particular, while the 

Federally created Commission will call an initial meeting for persons on the roll, it is these roll members who will determine the 

criteria for candidates to serve on the Council, determine the structure of the Council, and elect its members. The Committee emphasizes the importance of the deadlines established by this legislation. Barring unusual circumstances, the existence of pending disputes as to the inclusion of particular individuals on the roll should 

not be allowed to delay the reorganization process set forth in this 

section. The degree of Federal involvement contemplated by S. 

1011 is thus consistent with the historical role Congress has played 

in assisting Indian tribes and other native groups in reorganizing 

politically.116

Section 9. Negotiations and claims 

Section 9 was amended to clarify that in the interim period between recognition of the Native Hawaiian governing entity and any 

agreements between the three sovereigns, the Native Hawaiian 

governing entity would, unless expressly limited, exercise powers 

and authorities typically exercised by Indian tribes and native 

groups recognized by the United States. This section was further 

amended to specify that State of Hawaii lands and surplus Federal 

lands would be part of the negotiations among the three governments. 

Section 9(b)(3) was amended to clarify that the Native Hawaiian 

governing entity would be vested with the inherent powers of a native government, modifiable only by agreement among the three 

governments. Nothing in the Act, unless agreed upon, preempts 

Federal or State authority over Native Hawaiians or their property 

or authorizes the State to tax or regulate the Native Hawaiian governing entity. 

A subsection was added to reaffirm that once the Native Hawaiian governing entity is extended federal recognition, it retains the 

inherent authority to determine its own membership, membership 

criteria, and whether to grant, deny, revoke, or qualify membership 

without regard to the definitions in this Act. 

A subsection on ‘‘Claims’’ was amended to confirm and clarify 

that nothing in this Act alters the obligations of the United States 

or the State of Hawaii relating to events that occurred prior to recognition of the Native Hawaiian governing entity. It clarifies that 

nothing creates, enlarges, revives, modifies, diminishes, extinguishes, waives, or otherwise alters any claim or cause of action 

against the United States or its officers or the State of Hawaii or 

its officers, or any defense to any such claim or cause of action, or 


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117See Indian Reorganization Act of 1934, 25 U.S.C. § 476(e)–(h); Amendment to Indian Reorganization Act for Alaska (1936), 25 U.S.C. 473a. 118 ‘‘Indian country’’ is a term codified by Federal statute. 18 U.S.C. § 1151. Although section 

1151 defines ‘‘Indian country’’ for the purpose of delineating the scope of Federal criminal jurisdiction over Indians, the Supreme Court has applied the definition to determine the scope of 

tribal territorial jurisdiction, as well. Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 

520, 527 (1998); DeCoteau v. District County Ct. for the Tenth Jud. District, 420 U.S. 425, 427 

n.2 (1975). 

amends any Federal statute except as expressly amended by this 

Act. 

In general, Section 9 affirms the inherent powers and privileges 

of the Native Hawaiian governing entity upon Federal recognition. 

The specific demarcations of authority among the State, the Native 

Hawaiian sovereign, and the United States are most appropriately 

determined by agreement among those three sovereigns, as provided for by Section 9(b). Recognition of the Native Hawaiian sovereign is a necessary precondition to negotiating such an agreement. 

It is the Committee’s expectation that the parties will engage in 

these negotiations in good faith to resolve the issues in a just manner, accounting for the unique history and circumstances of the Native Hawaiian people. This should be done without compromising 

the inherent authority of the Native Hawaiian governing entity to 

exercise those powers, privileges, and immunities typically exercised by governments representing the native peoples of the United 

States. Historically, when Congress has enacted legislation allowing for the reorganization of native governments, it has recognized 

that those governments are vested with inherent tribal authority 

under existing Federal law.117

Although, the substitute amendment made improvements to clarify the provisions of the bill, the Committee believes that this section would benefit from further clarifying certain limitations on the 

interim powers of the Native Hawaiian governing entity during the 

period prior to the completion of negotiations. Any such limitations 

would be intended to be temporary, remaining in place until such 

time as the negotiations are concluded and any necessary implementing legislation is enacted. Limitations that may be placed on 

the inherent powers of the Native Hawaiian governing entity during the period of negotiations may include the following: that (1) 

there will be no ‘‘Indian country’’ or territory akin to ‘‘Indian country’’ over which the governing entity may assert governmental authority; 118 (2) the United States will not take land into trust for 

the Native Hawaiian government or its members; (3) that while the 

Native Hawaiian government will be able to exercise jurisdiction or 

authority over its own members (membership being voluntary), it 

will lack any territory-based jurisdiction or authority; (4) the Native Hawaiian governing entity will not be able to exercise jurisdiction or authority over nonmembers (or entities owned wholly or 

mostly by nonmembers) without their express consent; (5) individual Native Hawaiians will continue to be subject to the civil and 

criminal jurisdiction of Federal and State courts; and (6) the State 

can continue to regulate and tax individual Native Hawaiians and 

their property. In the substitute amendment, these points are for 

the most part not express, but may be inferred from paragraphs (1) 

to (4) of Section 9(b). The Committee believes that the Act could 

benefit from making these points express. 


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119See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978). Membership in the Native Hawaiian governing entity will be voluntary, paralleling the applicable rule for tribes. Accordingly, 

no person could be involuntarily subject to the governing entity’s inherent powers and privileges. 120 See Fisher v. District Ct. of the Sixteenth Jud. District of Mont., 424 U.S. 382, 387–89 

(1976) (per curiam). 121 Cf. John v. Baker, 982 P.2d 738 (Alaska 1999) (analyzing a Federally recognized Native 

tribe’s inherent sovereign powers outside of Indian country), cert. denied, 528 U.S. 1182 (2000). 

Further, any such interim limitations are not intended to express 

the will of Congress with respect to the inherent powers and privileges of native self-government that may be properly exercised by 

the Native Hawaiian governing entity following the negotiations 

and the enactment of any implementing legislation. 

The inherent powers and privileges of self-government that vest 

in the Native Hawaiian governing entity upon Federal recognition 

include, but are not limited to, Native Hawaiians’ inherent right to 

autonomy in their internal affairs, and their inherent right to selfdetermination and self-governance. This inherent, internal power of 

self-government, includes, but is not limited to, the power to operate under a form of government of the Native Hawaiians’ choosing, 

the power to define conditions of membership,119 the authority to 

regulate domestic relations of members,120 the power to provide 

governmental programs and services to members, and sovereign 

immunity. 

During this initial period of negotiation between Federal recognition and any implementing legislation, the substitute amendment 

protects the authority and interests of the State of Hawaii by providing that ‘‘nothing in this Act shall preempt Federal or State authority over Native Hawaiians or their property under existing 

law.’’ 

The final clause of Section 9(b)(3) is designed to safeguard the 

governing entity’s independence from State and local taxation and 

regulation when it undertakes core governmental functions. The 

scope of this protection, once again, is not express, but may be inferred from Section 9(b)(1)–(4), as well as from Federal common 

law regarding the authority of States to tax and regulate tribes in 

analogous situations.121

The Act would benefit from clarifying the scope of the Native Hawaiian governing entity’s immunity from State regulation and taxation. Such a clarification could provide that the State have the 

ability during the interim period to regulate and tax the non-governmental activities and property of the Native Hawaiian governing entity (and of entities owned by the Native Hawaiian governing entity). Such a clarification should continue, however, to 

prohibit the State from regulating or taxing governmental, nonbusiness, noncommercial activities undertaken by the Native Hawaiian governing entity (or by entities wholly owned by the Native 

Hawaiian governing entity). Such activities would include the provision of health care, housing and public safety to members of the 

Native Hawaiian governing entity, and activities that support 

those and similar government functions. It is unlikely that the Native Hawaiian governing entity’s governmental, nonbusiness, noncommercial activities would have much impact on anyone other 

than its own Native Hawaiian members. So this potential clarification of the State’s power to tax and regulate the Native Hawaiian 

governing entity during the interim period would be a narrow one 

and would prevent the State from unduly interfering with Native 


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122See Kiowa Tribe of Oklahoma v. Mfg. Techs, Inc., 523 U.S. 751, 764 (1997); Santa Clara 

Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Tribal sovereign immunity applies to activities either 

within or outside Indian country. See Kiowa Tribe, 523 U.S. at 764; Runyon ex rel. B.R. v. Ass’n 

of Village Council Presidents, 84 P.3d 437, 439 & nn.3–4 (Alaska 2004). 123Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, 476 U.S. 877, 890 (1986) 

(citing Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)). 124 Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). 125Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 

510 (1991) (quoting California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987)). 126 As is the case for Indian tribes generally, the Native Hawaiian governing entity could 

waive its sovereign immunity (by contract or by statute), provided that it does so clearly and 

unequivocally; and the Native Hawaiian governing entity would not be immune from any lawsuit brought by the United States in any Federal court. Furthermore, real property owned in 

fee simple by the Native Hawaiian governing entity would not be immune from any in rem action filed by the State. See County of Yakima v. Confederated Tribes, 502 U.S. 251, 265 (1992); 

Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d 881, 894–95 (6th Cir. 2007). 127 Ex parte Young, 209 U.S. 123 (1908). 

Hawaiians’ inherent rights to autonomy in their internal affairs, to 

self-determination, and to self-governance. 

In addition, upon Federal recognition, the Native Hawaiian governing entity would be entitled to sovereign immunity from suit.122

The common-law sovereign immunity possessed by tribes is a ‘‘necessary corollary to Indian sovereignty and self-governance.’’ 123 Immunities have a range of functions, including preventing ‘‘distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.’’ 124 In upholding tribal sovereign immunity, courts have recognized Congress’s desire, expressed through legislation, to promote 

the ‘‘goal of Indian self-government, including its ‘overriding goal’ 

of encouraging tribal self-sufficiency and economic development.’’ 125 Accordingly, the Committee believes that the Native Hawaiian sovereign should enjoy the same immunity from lawsuits in 

Federal and State courts that sovereign Indian tribes and native 

groups in the continental United States enjoy.126

Likewise, the Committee believes that officers and employees of 

the Native Hawaiian governing entity should enjoy the same common-law immunities as the officers and employees of any Indian 

tribe. These immunities are similar to those enjoyed by officers and 

employees of State governments. As with tribal officers, officers of 

the Native Hawaiian governing entity might be sued for declaratory or injunctive relief under principles akin to the doctrine of Ex 

parte Young.127 As is also the case with Indian tribal officers, in 

some circumstances an official of the Native Hawaiian sovereign 

who acts outside the scope of his or her authority might be liable 

to a suit for money damages. For example, the Committee believes 

that a Native Hawaiian legislator could not be sued for libel based 

on statements made in the course of deliberations by the sovereign’s legislative body, as the immunity of the Native Hawaiian 

sovereign would encompass such conduct. But if an official of the 

Native Hawaiian governing entity were to defraud a State agency 

for personal profit in violation of State law, he or she would not 

have individual immunity for such conduct. 

Absent sovereign immunity and protection of the core governmental functions of the Native Hawaiian governing entity from 

State taxation and regulation, the State could wield vast power 

against the governing entity. That imbalance would give the State 

little incentive to negotiate for a fair, long-term allocation of powers, authorities, and immunities among the three sovereigns. 


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128 E.g., Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009); Han v. Department of 

Justice, 824 F. Supp. 1480, 1486 (D. Haw. 1993), aff’d, 45 F.3d 333 (9th Cir. 1995); KeaukahaPanaewa Cmty. Ass’n v. Hawaiian Homes Comm’n, 588 F.2d 1216, 1224 n.7 (9th Cir. 1979); Na 

Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995); Liliuokalani v. United States, 45 Ct. Cl. 418 (1910); see also Burgert v. Lokelani Bernice Pauahi Bishop Trust, 

200 F.3d 661 (9th Cir. 2000); ‘Ohana v. United States, 76 F.3d 280 (9th Cir. 1996); Price v. Akaka, 3 F.3d 1220 (9th Cir. 1995); Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 1990); Bush v. Wat- son, 918 P.2d 1130 (Haw. 1996); Aged Hawaiians v. Hawaiian Homes Comm’n, 891 P.2d 279 

(Haw. 1995); Bush v. Hawaiian Homes Comm’n, 870 P.2d 1272 (Haw. 1994); Pele Defense Fund v. Paty, 837 P.2d 1247 (Haw. 1992); Territory v. Kapiolani, 18 Haw. 640 (Haw. Terr. 1908); Territory v. Puahi, 18 Haw. 649 (Haw. Terr. 1908). 

At some point after the United States’ initial recognition of the 

newly reorganized Native Hawaiian governing entity, negotiations 

among the three sovereigns—the United States, the State of Hawaii, and the Native Hawaiian governing entity—could alter many 

of the above-discussed ground rules that are implicit in section 9(b) 

of the substitute amendment. For example, if the three sovereigns 

eventually agreed to the creation of Indian country within the 

State of Hawaii, and legislation was enacted to implement that 

agreement, it is possible that the Native Hawaiian governing entity 

could then exercise certain limited types of authority or jurisdiction 

over nonmembers. 

Once the Native Hawaiian governing entity is reorganized, the 

United States will recognize and affirm the entity’s inherent power 

and authority (akin to the inherent power and authority of any Indian tribe) to determine its own membership criteria, to determine 

its own membership, and to grant, deny, revoke, or qualify membership without regard to whether any person was or was not 

deemed to be a ‘‘qualified Native Hawaiian constituent’’ under this 

Act. Membership criteria set forth in the Native Hawaiian governing entity’s organic governing documents should provide that 

membership is voluntary and can be relinquished, as is typically 

the case with Indian tribes. 

As noted in section 9(c), this legislation does not provide the 

basis for the Native Hawaiian governing entity or other Native Hawaiian groups to relitigate claims that have already been resolved 

by the courts or to retroactively impose new obligations on the Federal Government or the State of Hawaii. Native Hawaiian claims— 

in contrast to those of most newly recognized tribes—have been extensively litigated over the past 100 years. There has been extensive litigation relating to land claims, claims for money damages, 

and other types of claims, dating back at least to 1908.128 The 

Committee envisions that issues concerning asserted historic or 

moral wrongs may be the subject of negotiations among the Native 

Hawaiian governing entity, the State of Hawaii, and the United 

States, together with the other issues encompassed within the process set forth in section 9(b) of this Act, and that such negotiations 

will provide an appropriate forum in which to address these claims 

questions. 

Section 10. Applicability of Federal laws 

Section 10 was amended to state that the Council, established by 

section 8(c)(2), and the subsequent Native Hawaiian governing entity will be considered an ‘‘Indian tribe’’ for the purposes of sections 

201 through 203 of the Indian Civil Rights Act of 1968. 

In addition, the substitute amendment clarifies that nothing in 

this Act would extend eligibility for any Indian program for the NaVerDate Nov 24 2008 00:19 Mar 17, 2010 Jkt 089010 PO 00000 Frm 00031 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX SR162

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129 25 U.S.C. §§ 1301–03. 130See id. § 1302. 131 Id. § 1303. 132See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58–59 (1978). 

tive Hawaiian governing entity or its members unless it explicitly 

states they are eligible. Again, unlike most newly recognized native 

governments, Congress has consistently established separate programs for Native Hawaiians. The Committee expects that for the 

foreseeable future, funding for Native Hawaiians remains separate, 

but with the understanding that sometime in the future, it may 

make sense to include Native Hawaiians in other native programs 

and extinguish some of the Native Hawaiian specific programs. A 

similar approach was taken with Alaska Natives. Nothing in this 

Act affects eligibility for any program or service in effect before the 

date of enactment of this Act. 

Subsections were added to clarify that the terms ‘‘Indian’’ and 

‘‘Native American’’ in Federal statutes or regulations in force prior 

to United States’ recognition of the Native Hawaiian governing entity, do not apply to the Native Hawaiian governing entity or its 

members unless it expressly does so. In addition, new subsections 

clarify that the Indian Trade and Intercourse Act does not apply 

to any land transfer involving Native Hawaiians or Native Hawaiian entities that occurs prior to recognition of the Native Hawaiian 

governing entity. 

As stated above, the substitute amendment expressly makes the 

Indian Civil Rights Act of 1968 129 applicable to the Council and 

the Native Hawaiian governing entity. The Indian Civil Rights Act 

(ICRA) provides certain protections similar to those under the Bill 

of Rights and the Fourteenth Amendment. 130 Similar to how the 

Bill of Rights and Fourteenth Amendment operate to constrain the 

United States and the several states in the exercise of their powers, ICRA will restrict the actions of the Native Hawaiian governing entity and will prohibit it from violating, for example, the 

due-process and equal-protection rights of members and nonmembers alike. 

Importantly, because this provision makes ICRA expressly applicable to the Native Hawaiian governing entity, a person would be 

able to file a habeas corpus petition in Federal court to challenge 

the legality of his detention by an order of the Native Hawaiian 

governing entity.131 While ICRA allows a person to bring a habeas 

action, and thus serves as a limited waiver of the Native Hawaiian 

governing entity’s sovereign immunity, it is not a general waiver 

of the entity’s sovereign immunity.132

By incorporating only those statutes that expressly reference Native Hawaiians, Section 10(d)(2) attempts to provide clear direction 

to Federal agencies regarding which programs and statutes are 

available to Native Hawaiians, and to avoid statute-by-statute litigation over the scope of these statutes. The Committee anticipates 

that a body of law addressing Native Hawaiians will develop over 

time, based on currently existing statutory and regulatory provisions and new legislation and court decisions. 

This language is intended to avoid uncertainty, and potential litigation, as to whether Native Hawaiians are properly considered 

‘‘Indians,’’ or the Native Hawaiian sovereign is properly considered 

an ‘‘Indian tribe’’ under every existing statute involving Indians 


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133 E.g., American Indian Religious Freedom Act, 42 U.S.C. § 1996; Native American Graves 

Protection and Repatriation Act, 25 U.S.C. §§ 3001–3013; Native American Programs Act of 

1974, 42 U.S.C. §§ 2991–2992d. 

and Indian tribes. These terms occur throughout the United States 

Code and associated implementing regulations. Such references to 

‘‘Indians’’ and ‘‘tribes’’ were not generally intended to encompass 

Native Hawaiians. When Congress has wanted to reference Native 

Hawaiians, it has done so expressly. There is an extensive body of 

Federal Indian statutes and regulations specifically addressing Native Hawaiians, often in conjunction with other Native Americans.133

Section 10(e) addresses the Indian Trade and Intercourse Act. 

First enacted in 1790, that Act requires Congressional assent to 

transfers of Indian land title to third parties. The Indian Trade and 

Intercourse Act has never been thought to apply to the alienation 

of Native Hawaiian lands. As a result, parties have not sought 

Congressional ratification pursuant to 25 U.S.C. § 177 prior to the 

transfer of these lands. To apply the Indian Trade and Intercourse 

Act retroactively could impose significant liabilities on landowners 

in Hawaii, as well as on the State of Hawaii and the Federal Government. The provision in section 10(e) eliminates the possibility of 

a cloud on title issuing from the Indian Trade and Intercourse Act. 

Section 10(e) is primarily directed to the State and private parties, 

but the language is written to include all transactions, including 

those involving the Federal Government, to avoid future uncertainty and litigation. 

Section 11. Severability 

Other than to change the section number from 10 to 11, this section was not amended. 

Section 12. Authorization of appropriations 

Other than to change the section number from 11 to 12, this section was not amended. 

SECTION-BY-SECTION OF S. 1011, AS AMENDED

Section 1. Short title 

Section 1 sets forth the short title for the bill as the ‘‘Native Hawaiian Government Reorganization Act of 2009.’’ 

Section 2. Findings 

Section 2 sets forth Congressional findings that support this legislation. These findings, among other things, identify some of the 

key respects in which Congress has previously legislated for the 

benefit of the Native Hawaiian people—thereby recognizing them 

as a distinctly native community within Congress’s power to legislate in respect of Indian tribes. The findings also discuss some of 

the past and current ways in which the Native Hawaiian people 

have preserved their culture, traditions, and identity as a distinctly 

native people, and have given expression to their rights as native 

people to self-determination, self-governance and economic self-sufficiency. 


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Section 3. Definitions 

Section 3 sets forth a number of definitions of terms used in this 

Act, including definitions for the term ‘‘aboriginal, indigenous, native people,’’ ‘‘Native Hawaiian membership organization’’, and 

‘‘qualified Native Hawaiian constituent’’. 

The term ‘‘aboriginal, indigenous, native people’’ is defined as the 

‘‘people whom Congress has recognized as the original inhabitants 

of the lands that later became part of the United States and who 

exercised sovereignty in the areas that later became part of the 

United States.’’ 

The term ‘‘Native Hawaiian membership organization’’ is defined 

as ‘‘an organization that . . . serves and represents the interests of 

Native Hawaiians, has as a primary and stated purpose the provision of services to Native Hawaiians, and has expertise in Native 

Hawaiian affairs; . . . has leaders who are elected democratically, 

or selected through traditional Native leadership practices, by 

members of the Native Hawaiian community; . . . advances the 

cause of Native Hawaiians culturally, socially, economically, or politically; . . . is a membership organization or association; and . . 

. has an accurate and reliable list of Native Hawaiian members.’’ 

The term ‘‘qualified Native Hawaiian constituent’’ identifies 

adult U.S. citizens who, subject to the procedures and provisions of 

Section 8 of the Act, will be eligible to participate in the reorganization of the Native Hawaiian governing entity. The term is defined in part as ‘‘an individual who is 1 of the indigenous, native 

people of Hawaii and who is a direct lineal descendant of the aboriginal, indigenous, native people who . . . resided in the islands 

that now comprise the State of Hawaii on or before January 1, 

1893; and . . . occupied and exercised sovereignty in the Hawaiian 

archipelago, including the area that now constitutes the State of 

Hawaii; or . . . an individual who is 1 of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act, 1920 (42 Stat. 

108, chapter 42), or a direct lineal descendant of that individual.’’ 

In addition to certifying lineal descent requirements, as provided 

above, qualified Native Hawaiian constituents must be U.S. citizens, 18 years of age or older, wish to participate in the reorganization process, and maintain a significant cultural, social, or civic 

connection to the Native Hawaiian community, as evidenced by satisfying two or more of the ten listed criteria. 

Section 4. United States policy and purpose 

In section 4, the United States reaffirms its political and legal relationship with the Native Hawaiian people, and the distinctly native nature of the Native Hawaiian community. Section 4 also explains that Congress is exercising its authority to enact legislation 

directed to Native Hawaiians, as it has previously done in more 

than 150 Federal laws. This section also reaffirms that Native Hawaiians have an inherent right to autonomy in their internal affairs, an inherent right of self-determination and self-governance, 

the right to reorganize a Native Hawaiian governing entity, and 

the right to become economically self-sufficient. This section states 

that the United States shall continue to engage in the process of 

reconciliation and political relations with Native Hawaiians. 


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This section also sets forth the purpose of the Act, which is to 

provide a process for the reorganization of a single Native Hawaiian governing entity and the reaffirmation of the special political 

and legal relationship between the United States and that Native 

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

Section 5. United States Office for Native Hawaiian Relations 

Section 5 establishes the United States Office for Native Hawaiian Relations (Office) in the Office of the Secretary of the Department of the Interior and sets forth the duties of the Office. This 

section does not apply to the Department of Defense but the Secretary of Defense may designate one or more officials as liaison to 

the Office. 

Section 6. Native Hawaiian Interagency Coordinating Group 

Section 6 establishes the Native Hawaiian Interagency Coordinating Group, which is to be composed of officials from each Federal agency that administers Native Hawaiian programs, establishes or implements policies that affect Native Hawaiians, or 

whose actions may significantly or uniquely impact Native Hawaiian resources, rights, or lands, and the Office for Native Hawaiian 

Relations. The specific duties of the Interagency Coordinating 

Group are set forth but, generally, the Group will coordinate Federal programs and policies affecting Native Hawaiians and consult 

with the Native Hawaiian governing entity. 

This section does not apply to the Department of Defense but the 

Secretary of Defense may designate one or more officials as liaison 

to the Interagency Coordinating Group. 

Section 7. Designation of Department of Justice representative 

Section 7 provides for a representative from the Department of 

Justice to assist the Office for Native Hawaiian Relations with the 

implementation of this Act to ensure that all constitutional parameters, rights, and protections are observed. 

Section 8. Process for reorganization of Native Hawaiian Governing 

Entity and reaffirmation of special political and legal relationship between United States and Native Hawaiian Governing 

Entity 

Section 8 outlines the process for the reorganization of the Native Hawaiian governing entity. Section 8 initially establishes that 

the United States recognizes the right of the qualified Native Hawaiian constituents to reorganize the single Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents. 

A Commission composed of nine members is established to prepare and maintain a roll of the ‘‘qualified Native Hawaiian constituents’’ who elect to participate in the reorganization of a single 

Native Hawaiian governing entity. The qualifications for appointment by the Secretary to the Commission as well as the duties and 

parameters of the Commission are outlined in this section. 

Following the establishment of the Commission, a process for reorganization of a single Native Hawaiian governing entity is set 

forth. First, a roll of the names of the qualified Native Hawaiian 


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constituents is established, as defined by section 3. The Commission is required to determine the types of documentation that can 

be submitted to the Commission for a determination to be made on 

whether an individual meets the definition of ‘‘qualified Native Hawaiian constituent’’ for the purposes of establishing a roll. The 

Commission must submit to the Secretary of the Interior an established roll and certify that individuals on the list satisfy the requirements of the definition in section 3. The certified roll shall be 

published in the Federal Register. An appeal mechanism shall be 

established by the Secretary of the Interior in consultation with the 

Commission for any person whose name is excluded from the roll 

but who claims to meet the definition of ‘‘qualified Native Hawaiian 

constituent.’’ The Commission is responsible for updating the roll. 

The Commission, in consultation with the Secretary, will hold a 

minimum of three meetings that are at least two working days of 

the qualified Native Hawaiian constituents listed on the roll to organize the Native Hawaiian Interim Governing Council. The qualified Native Hawaiian constituents on the certified roll may develop 

criteria for candidates to serve on the Native Hawaiian Interim 

Governing Council, determine the structure of the Council, and 

elect members from individuals listed on the roll to serve on the 

Council. This section sets forth the powers and activities of the 

Council, which include developing organic governing documents for 

the Native Hawaiian governing entity and holding elections to ratify such organic documents. 

Following ratification of the organic governing documents, they 

shall be submitted to the Secretary. The Secretary must certify 

that the organic documents contain criteria for future membership 

in the Native Hawaiian governing entity; were adopted by a majority vote of the qualified Native Hawaiian constituents on the published roll who chose to vote in the election; provide authority for 

the Native Hawaiian entity to negotiate; provide for the exercise of 

inherent authorities of the Native Hawaiian governing entity; prevent the sale, disposition, lease, or encumbrance of lands, interests 

in lands or other assets of the Native Hawaiian governing entity; 

provide for civil rights protection for citizens of the Native Hawaiian governing entity and all persons affected by the exercise of governmental powers and authorities by the Native Hawaiian governing entity; and that the organic governing documents are consistent with applicable Federal law. 

Upon certification of the organic governing documents and the 

election and installation of officers of the Native Hawaiian governing entity, the Council shall cease to exist. Once this occurs, the 

political and legal relationship between the United States and the 

Native Hawaiian governing entity will automatically be reaffirmed 

and Federal recognition shall be extended to the Native Hawaiian 

governing entity as the representative sovereign governing body of 

the Native Hawaiian people. 

Section 9. Reaffirmation of delegation of Federal authority to State 

of Hawaii; negotiations; claims 

Section 9 provides that upon reaffirmation of the political and 

legal relationship between the United States and the Native Hawaiian governing entity, the United States and the State of Hawaii 

may enter into negotiations with the Native Hawaiian governing 


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entity. The Native Hawaiian governing entity will exercise the inherent governmental powers of a native government under existing 

law, only modified by agreement among the Native Hawaiian governing entity, the United States, and the State. These agreements 

address such matters as the transfer of State of Hawaii lands and 

surplus Federal lands, natural resources, and other assets, and the 

protection of existing rights related to such lands or resources; the 

exercise of governmental authority over any transferred lands, natural resources, and other assets, including land use; the exercise of 

civil and criminal jurisdiction; the exercise of other powers and authorities that are recognized by the United States as powers and 

authorities typically exercised by governments representing indigenous, native people of the United States; any residual responsibilities of the United States and the State of Hawaii; and grievances 

regarding assertions of historical wrongs committed against Native 

Hawaiians by the United States or by the State of Hawaii. 

Upon agreement on any matter or matters, negotiated with the 

United States or the State of Hawaii, and the Native Hawaiian 

governing entity, the parties may submit recommendations for 

proposed amendments to Federal law that will enable the implementation of these agreements to both the Federal and State governments. 

This section clarifies that the Native Hawaiian governing entity 

shall be vested with the inherent powers and privileges of self-government of a native government under existing law. These powers 

may be modified through negotiations and by agreement between 

the three entities, with the exception of section 10(a) of the Act. 

Nothing in this Act shall preempt Federal or State authority over 

Native Hawaiians or their property under existing law or authorize 

the State to tax or regulate the Native Hawaiian governing entity, 

unless so agreed by the three entities. In addition, the United 

States recognizes and affirms the Native Hawaiian governing entity’s inherent power and authority to determine its own membership once Federal recognition is extended. 

Finally, this section further addresses potential or existing 

causes of action against the United States or any other entity or 

person. It specifically states that nothing in this Act alters existing 

law, including case law, regarding obligations of the United States 

or the State of Hawaii relating to events or actions that occurred 

prior to recognition of the Native Hawaiian governing entity. In addition, this Act does not create, enlarge, revive, modify, diminish, 

extinguish, waive, or otherwise alter any claim or cause of action 

against the United States or its officers or the State of Hawaii or 

its officers, or any defense (including the defense of statute of limitations) to any such claim or cause of action. Nor does the Act alter 

the applicable statutes of limitations. This section also lists a number of other Acts which this Act would not amend unless expressly 

stated in this Act. 

Section 10. Applicability of certain Federal laws 

Section 10 prohibits the Native Hawaiian governing entity and 

Native Hawaiians from conducting gaming as a matter of claimed 

inherent authority or under any Federal law, in the State of Hawaii or within any other State or Territory of the United States. 


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Only one Native Hawaiian governing entity may be recognized 

pursuant to this Act. The Council and the subsequent governing 

entity recognized under this Act shall be an Indian tribe as defined 

in the Indian Civil Rights Act of 1968. No other groups shall be eligible for the Federal Acknowledgment Process. In addition, this 

section clarifies that Native Hawaiians shall not be eligible for programs and services available to Indians unless otherwise provided 

under applicable Federal law. The Native Hawaiian governing entity and its members shall be eligible for Native Hawaiian programs 

and services to the extent and in the manner provided by other applicable laws. 

Finally, this section makes clear that the Indian Trade and 

Intercourse Act does not apply to land conveyances, titles or claims 

involving Native Hawaiians or Native Hawaiian organizations 

prior to the date of the United States’ recognition of the Native Hawaiian governing entity. 

Section 11. Severability 

The section provides that if any section or provision of this Act 

is found to be invalid, the remaining sections or provisions shall 

continue in full force and effect. 

Section 12. Authorization of appropriations 

This section authorizes such sums as necessary to carry out this 

Act. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

On December 17, 2009, in an open business meeting, the Committee considered S. 1011 and ordered, by voice vote, that the bill 

be favorably reported with an amendment in the nature of a substitute to the Senate, and that the bill, as amended, do pass. 

COST AND BUDGETARY CONSIDERATIONS

S. 1011—Native Hawaiian Government Reorganization Act of 2009 

S. 1011 would establish a process for a Native Hawaiian government to be constituted and recognized by the federal government. 

CBO estimates that implementing this legislation would cost about 

$1 million annually over the 2010–2012 period and less than 

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

or revenues. 

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

consult and coordinate the relationship with the Native Hawaiian 

governing entity. Based on information from DOI, CBO expects 

that the office would require up to three full-time personnel. S. 

1011 also would establish the Native Hawaiian Interagency Coordinating Group, consisting of officials from DOI and certain other 

federal agencies. Finally, the bill would create a nine-member commission responsible for creating and certifying a roll of adult Native Hawaiians. Based on information from DOI, CBO expects that 

this commission would need three years and three full-time staff to 

complete its work. 


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CBO has determined that section 10(c) of S. 1011 is excluded 

from review for mandates under the Unfunded Mandates Reform 

Act (UMRA) because it enforces constitutional rights of individuals. 

Other provisions of the bill contain no intergovernmental or private-sector mandates as defined in UMRA and would impose no 

costs on state, local, or tribal governments. Enacting this legislation could lead to the creation of a new government unit to represent Native Hawaiians. The transfer of any land or other assets, 

including land now controlled by the state of Hawaii, would be the 

subject of future negotiations. 

On January 7, 2010, CBO transmitted a cost estimate for H.R. 

2314, the Native Hawaiian Government Reorganization Act of 

2009, as ordered reported by the House Committee on Natural Resources on December 16, 2009. S. 1101 contains a provision not included in H.R. 2314 that enforces certain constitutional rights. 

That difference in the bills is reflected in the mandates statements 

of the cost estimates. Otherwise, the two bills are similar, and the 

estimated costs are the same. 

The CBO staff contact for this estimate is Jeff LaFave. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO 

I have given my views on this bill, S. 1011, during the Committee’s hearing in August of 2009 and during the business meeting 

last December during which the Committee approved by voice vote 

the substitute amendment: I cannot support this bill. 

There are many aspects of the substitute amendment that are either troubling or give me great pause, but for purposes of this 

statement of additional views I will confine my remarks to what I 

think is the principal problem of this bill, both as introduced and 

as it would be amended by the substitute. In short, the bill presupposes that the group, entity or organization that would emerge 

from the process authorized in the bill is an ‘‘Indian tribe’’ within 

the meaning of the United States Constitution, or is at least the 

functional equivalent of an Indian tribe for constitutional purposes. 

That is a presupposition that I am unable and unwilling to 

make. 

Many people take the position that, as a matter of law and fact 

and history, Native Hawaiians simply cannot be recognized as a 

group in the same way that Indian tribes are recognized. On the 

other hand, many others take the position that indeed Native Hawaiians can be recognized that way, as a group that is functionally 

and legally the equivalent of an American Indian tribe. In our 

Committee hearings on this and prior versions of the Native Hawaiian recognition bill we have heard from proponents of both sides 

of the question. 

During the Committee hearing on S. 1011 in August of 2009, 

Professor Stuart Minor Benjamin of Duke Law School submitted 

testimony suggesting that the question whether a Native Hawaiian 

government can or should be federally recognized is an exceedingly 

difficult one, fraught with many legal and constitutional issues that 

deserve serious consideration. 

The significance of Federal recognition of an Indian tribe is far 

reaching—for the tribe, for its members, and for the United States. 

That is why we have an administrative recognition process in the 

Department of the Interior: to determine which native groups 

should be recognized by the Federal government as Indian tribes, 

and which native groups should not. The analysis that goes into 

that determination is very exacting, covering a number of historical, ethnographic, and other relevant factors relating to the tribal 

group and its members. 

I appreciate that the substitute amendment includes provisions 

that would impose a number of new requirements for enrollment 

to participate in the referendum process authorized by the bill. 

These new requirements would likely limit the size of the population that would vote on the governing documents, including a requirement that, to be eligible to enroll, a person of Native Hawaiian descent also would have to provide evidence of minimum ties 


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1See the definition of ‘‘qualified Native Hawaiian constituent’’ in section 3(12) of the substitute amendment. In addition to other requirements, this definition sets forth a list of 10 criteria, any 2 or more of which will suffice to demonstrate that the person maintains ‘‘a significant 

cultural, social, or civic connection to the Native Hawaiian community. . . .’’ 2The reorganization process set forth in section 8 of the bill seems almost outcome determinative. Would many ‘‘qualified Native Hawaiian constituents’’ who do not support recognition of 

a Native Hawaiian government gather the evidence of eligibility necessary to enroll under the 

substitute amendment, pursue the enrollment process, and then cast their votes against ratification of governing documents? Perhaps, but it seems highly unlikely. To the contrary, the process 

appears to be one that will tend to enroll those who favor recognition and not those who are 

either opposed or indifferent to recognition. 

or relationships to ‘‘the Native Hawaiian community,’’ such as ties 

to certain Native Hawaiian lands, eligibility for benefits under the 

Hawaiian Homes Commission Act, or participation in Native Hawaiian organizations.1 Nevertheless, these new requirements seem 

rather minimal and arbitrary, and in any event give me little or 

no comfort that what we are coming up with in this bill is an Indian tribe, or the constitutional equivalent of an Indian tribe.2

I continue to believe that the best way to determine whether Native Hawaiians should be treated as an Indian tribe is not to have 

Congress deem them to be so as this bill would do but instead to 

authorize them to pursue the same administrative process at the 

Department of the Interior that other native groups must pursue, 

so that they, like these other groups, can make their best case for 

Federal recognition within that process. 

S. 1011, as introduced and as embodied in the substitute amendment filed by Senator Akaka, jumps to the conclusion that the 

group that ultimately organizes under the bill should be treated 

like a federally recognized Indian tribe. Respectfully, I do not think 

that we, as members of this Committee and of the Senate, can or 

should make the determination that the Native Hawaiian governing entity should be treated as a federally recognized Indian 

tribe. 

For that reason I cannot support this bill. 

JOHN BARRASSO. 


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ADDITIONAL VIEWS FROM SENATOR MCCAIN 

For years, the Senate Committee on Indian Affairs has been considering legislation that would establish a process for reorganization and federally recognizing a native Hawaiian government. I understand that this legislation has been offered in response to several concerns expressed by the members of the Hawaii delegation. 

I am very much aware that one of the purposes of this legislation 

is to insulate current native Hawaiian programs from constitutional attack in the courts, and I am sympathetic to that purpose. 

However, that does not change the fact that I have serious doubts 

about the wisdom of this legislation. 

If enacted, S. 1011 would result in the formation of a sovereign 

government for Native Hawaiian people, which carries with it the 

privilege of sovereign immunity from lawsuits, and the powers to 

tax, to promulgate and enforce criminal code, and to exercise eminent domain. I cannot turn away from the fact that this bill bases 

this new nation exclusively—not primarily, not in part, but exclusively—on race. This approach has drawn criticism from the U.S. 

Commission on Civil Rights, which recommended against passage 

of a similar native Hawaiian bill, S. 147, during the 109th Congress, and warned that the proposal would ‘‘discriminate on the 

basis of race’’ and ‘‘further subdivide the American people into discrete subgroups accorded varying degrees of privilege.’’ 

The Constitution provides the federal government with the power 

to recognize tribes with a continuous history of separate self-governance, but it does not give it the power to reconstitute or create 

a new tribe made up of a collection of United States citizens demanding special status. Regrettably, at its core, this bill embraces 

the dangerous concept of conferring special privileges on one racial 

group over others. This is unacceptable to me, and it is unacceptable, I am sure, to most other citizens of this Nation who agree 

that we must continue our struggle to become and remain one people—all equal, all Americans. 

JOHN MCCAIN. 


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ADDITIONAL VIEWS OF TOM COBURN 

I want to thank my colleagues for this opportunity to express my 

grave concerns with S. 1011, ‘‘the Native Hawaiian Government 

Reorganization Act,’’ now being reported by the Indian Affairs 

Committee. 

As my colleagues on the committee know well, this bill has been 

around for some time. I have many serious objections to this bill, 

and have submitted a series of documents to the Committee outlining most of those concerns. 

I will focus my many comments on the one question that matters 

most: Does Congress have the Constitutional authority to take this 

unprecedented action? 

IS THE BILL CONSTITUTIONAL?

Section 2 of this bill reads: ‘‘Congress finds that—(1) the Constitution vests Congress with the authority to address the conditions of the indigenous, native people of the United States;’’. 

Section 4 reads, in part: ‘‘Congress possesses the authority under 

the Constitution, including but not limited to Article I, section 8, 

clause 3, to enact legislation to address the conditions of Native 

Hawaiians.’’ 

Since it is the only provision of our Constitution specifically mentioned in the bill, I think it is important that senators read Article 

I, Section 8, Clause 3: ‘‘Congress shall have Power . . . To regulate 

Commerce with foreign Nations, and among the several States, and 

with the Indian Tribes;’’. 

In other words, this entire bill rests upon the ability of Congress 

to regulate commerce with Indian tribes. 

Supporters of this bill will argue that ‘‘Indian tribes’’ also refers 

to ‘‘indigenous peoples.’’ I adamantly disagree with that interpretation, and while each senator will have to decide this issue based 

on their reading of the Constitution and their Oath, I believe the 

historical record is clear. 

I have submitted volumes of information in the official committee 

hearing record from constitutional scholars and historians that underscore this lack of authority and the serious harm this precedent 

will establish. I encourage my colleagues to examine those documents in detail. The evidence is quite clear. 

Ironically, many of the bill’s strongest opponents have previously 

agreed with these concerns. For instance: 

In 1998, the State of Hawaii (now one of the strongest supporters 

of the bill—expending considerable resources) had this to say in a 


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1 Brief in opposition to Petition for Writ of Certiorari at p. 18, Rice v Cayetano, 528 US 495 

(2000). 2 Inouye, Daniel Senator, ‘‘Statement on Introduced Bills and Resolutions.’’ January 25, 2005. 

3http://memory.loc.gov/ammem/today/jun02.html 

4http://www.capitol.hawaii.gov/hrscurrent/Vol01lCh0001-0042F/03-ORG/ 

ORGl0004.HTM 

brief before the U.S. Supreme Court: ‘‘the tribal concept simply has 

no place in the context of Hawaiian history.’’ 1

Senator Inouye—one of the most respected men to ever serve on 

the Indian Affairs Committee—had this to say: ‘‘Because the Native 

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

Indian law that would otherwise customarily apply when the 

United States extends Federal recognition to an Indian tribal group 

does not apply.’’ 

Senator Inouye went on to say: ‘‘. . . That is why concerns which 

are premised on the manner in which Federal Indian law provides 

for the respective governmental authorities of the state governments and Indian tribal governments simply don’t apply in Hawaii.’’ 2

In other words, the very foundation on which this bill is based— 

Congress’ ability to regulate commerce among Indian tribes—is 

highly questionable. 

On the one hand, the authors of this bill claim that Native Hawaiians are an ‘‘Indian tribe’’ as a basis for Constitutional authority, and on the other hand, claim it is in fact NOT an ‘‘Indian tribe’’ 

for purposes of Indian law. 

If the statements of the bill’s supporters are accurate, it is not 

even clear whether the Indian Affairs Committee had proper jurisdiction to review this bill. 

There simply is no comparison to Indian tribes, or even to Alaska 

Native Corporations. 

This bill does not restore ‘‘tribal status’’ where it once existed; It 

creates an entirely new government based solely on race. The Kingdom of Hawaii was a diverse society and government (much like 

the state today). The new ‘‘tribe’’ will not reflect that tradition and 

will create a government just for those deemed ‘‘indigenous.’’ 

Unlike the many Indian tribes in my state whose governments 

were subsequently terminated, no such history exists for a Native 

Hawaiian entity. 

American Indians were not even formally given full citizenship 

until 1924.3 In contrast, Native Hawaiians became citizens of this 

country in 1900, twenty four years earlier.4 Native Hawaiians took 

part in the referendum that brought Hawaii into the Union as a 

state, and as one government. 

In Oklahoma, and even in Alaska, there were distinct tribal populations with existing governments at the time of statehood. That 

was not the case in Hawaii. In Alaska, distinct tribal communities 

existed at the time of statehood and were addressed in that state’s 

organic documents. Again, that is not the case in Hawaii. 

WHAT IS THE SOLUTION?

If the Native Hawaiians are entitled to sovereign tribal government status, as this bill presupposes, the solution is quite simple. 


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As many of my colleagues know, the federal government already 

has in place an established and rigorous seven step process for recognition of tribal governments. This review is handled by the Office 

of Federal Acknowledgement (OFA). 

This process is applied evenly to all who apply, and takes politics 

out of the equation. 

This committee should take the supporters of Native Hawaiian 

governmental recognition at their word. If they are indeed a distinct Indian community with historic ties to the federal government, and who has continued to exercise continuous governmental 

authority after an official termination, a Native Hawaiian entity 

should submit an application to OFA. If it believes it is not eligible 

for this process, Congress can easily authorize it to submit an application. 

THE LEGISLATIVE PROCESS

Even though the Committee has officially reported S. 1011, it is 

my hope that the people of Hawaii—those most immediately impacted by this bill—will have an opportunity to have their voices 

heard in Congress. While I mean no disrespect to the panelists who 

have testified during the legislative hearing, it is clear that those 

most strongly favoring the creation of a separate Native Hawaiian 

government have had a dominant voice. 

Further, the last minute changes made to this bill during the 

business meeting have heightened my concerns and should give the 

State of Hawaii considerable heartburn. The amendment in the nature of a substitute will severely weaken the sovereignty of the 

State of Hawaii and place it on a path towards two separate Hawaiis—one subject to the Constitution of the United States and 

built on the proudest traditions of American diversity and the other 

with undefined ‘‘inherent’’ authority that will reshape the State of 

Hawaii, and place many of its residents outside the full protections 

of the Bill of Rights. 

In an effort to preserve subsidies put in place for Native Hawaiians and jeopardized by recent Court decisions, this Congress is 

being asked to act outside of its Constitutional bounds and completely redefine the Indian Commerce Clause. This is a dangerous 

precedent for our nation. 

There are dozens of senators, including me, who believe this bill 

is a violation of our oath to the Constitution and a major affront 

to the Indian tribes in our states who have labored to regain their 

recognition. 

The road ahead for this bill will not be an easy one. I, along with 

many of our colleagues, will never give unanimous consent to moving forward on this bill. 

TOM COBURN. 


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EXECUTIVE COMMUNICATIONS

The Committee held a hearing on S. 1011 on August 6, 2009, at 

which Sam Hirsch, Deputy Associate Attorney General, U.S. Department of Justice, presented a statement on behalf of the Administration. In this statement, Mr. Hirsch acknowledged that many of 

the Administration’s concerns with previous versions of the Native 

Hawaiian Government Reorganization Act had been addressed in 

S. 1011. He also stated that the Department of Justice strongly 

supported the core policy goals of this bill, while recognizing that 

some of the specific details of the legislation were still being addressed. Mr. Hirsch’s statement was made a part of the hearing 

record for the Committee. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that the regulatory and paperwork impact of S. 1011 will be minimal. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that the enactment of S. 

1011 will not make any changes in existing law. 

Æ 


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