Date: 2000-09-26
Speaker: GEORGE MILLER (democrat)
Chamber: H
State: California

Mr. Speaker. H.R. 4904 is a natural evolution of the relationship the United States has with Native Hawaiians. The need for this legislation began with the illegal overthrow of the Kingdom of Hawaii in 1893 which disrupted a peaceful citizenry and developing island monarchy. It was highlighted by the passage of the Hawaiian Homes Commission Act in 1921 which put lands into public trust for the benefit of Native Hawaiians. The next step was taken when Congress. a hundred years after the overthrow of the Kingdom. adopted a Joint Resolution making a formal apology on behalf of the U.S. to Native Hawaiians. Today we unfold yet another chapter in our relationship with Native Hawaiians as we consider this legislation which provides a process for the reorganization of a Native Hawaiian government and recognition of the Native Hawaiian government by the United States for purposes of carrying on a governmenttogovernment relationship. This legislation was thoughtfully crafted. Our colleague. Mr. ABERCROMBIE and the entire Hawaii delegation here in the House and the Senate have invested a lot of effort into this legislation. In putting this together. they solicited input from all interested parties. The Resources Committee held five hearings on this legislation and reported the bill out with a unanimous vote. This is just legislation. it has been a long time coming and I urge my colleagues to support it. I want to raise two matters which are fundamental to an understanding of. why the pending legislation has been proposed. The first has to do with the authority of the United States to delegate Federal responsibilities to the several States. The second is important to an understanding of why the Federal policy which recognized the rights of the native people of America to selfdetermination and selfgovernance was not extended to the native people of Hawaii when Hawaii joined our Union of States in 1959. For the past two hundred and ten years. the United States Congress. the Executive. and the U.S. Supreme Court have recognized certain legal rights and protections for Americas indigenous peoples. Since the founding of the United States. Congress has exercised a constitutional authority over indigenous affairs and has undertaken an enhanced duty of care for Americas indigenous peoples. This has been done in recognition of the sovereignty possessed by the native peoplea sovereignty which preexisted the formation of the United States. The Congress constitutional authority is also premised upon the status of the indigenous people as the original inhabitants of this nation who occupied and exercised dominion and control over the lands to which the United States subsequently acquired legal title. The United States has recognized a special political relationship with the indigenous people of the United States. As Native AmericansAmerican Indians. Alaska Natives. and Native Hawaiiansthe United States has recognized that they are entitled to special rights and considerations. The Congress has enacted laws to give expression to the respective legal rights and responsibilities of the Federal govemment and the native people. However. we must also recognize that over the last two hundred years.. Federal policy toward Americas native people has vacillated significantly. While the United States Constitution vests the Congress with the authority to address the conditions of. the indigenous. native people of the United States. from time to time. with the consent of the affected States. the Congress has sought to more effectively address the conditions of the indigenous people by delegating Federal rcsu..bilities to various States. Beginning in the 1950s. pursuant to House Concurrent Resolution 108. Federal policy sought the termination of Indian reservations and a general transfer of some Federal responsibilities to the states. In the 1960s. California was one of the states that was made the subject of Federal law in this respect. when criminal jurisdiction and certain elements of civil jurisdiction formerly exercised by the United States was transferred to states with the enactment of Public Law 83280. So it is that the two significant actions of the United States as they relate to the native people of Hawaii must be understood in the context of the Federal policy towards Americas other indigenous. native people at the time of those actions. In 1921. when the Hawaiian Homes Commission Act was enacted into law. the prevailing Federal policy was premised upon the objective of breaking up Indian reservations and allotting lands to individual Indians. Those reservation lands remaining after the allotment of lands to individual Indians were opened up to settlement by nonIndians. and significant incentives were authorized to make the settlement of former reservation lands attractive to nonIndian settlers. Indians were not to be declared citizens of the United States until 1924. and it was typical that a twentyyear restraint on the alienation of allotted lands was imposed. This restraint prevented the lands from being subject to taxation by the states. but the restraint on alienation could be lifted if an individual Indian was deemed to have become "civilized." However. once the restraint on alienation was lifted and individual Indian lands became subject to taxation. Indians who did not have the wherewithall to pay the taxes on the land. found their lands seized and put up for sale. This allotment era of Federal policy vas responsible for the alienation of nearly half of all Indian lands nationwidehundreds of millions of acres of lands were no longer in native ownership. and hundreds of thousands of Indian people were rendered not only landless but homeless. The primary objective of the allotment of lands to individual Indians was to "civilize" the native people. The fact that the United States thought to impose a similar scheme on the native people of Hawaii in an effort to "rehabilitate a dying race" is thus readily understandable in the context of the prevailing Federal Indian policy in 1921. In 1959. when the State of Hawaii was admitted into the Union. the Federal policy toward the native people of America was designed to divest the Federal government of its responsibilities for the indigenous people and to delegate those responsibilities to the several states. A prime example of this Federal policy was the enactment of Public Law 83280. an Act which. as I have indicated. vested criminal jurisdiction and certain aspects of civil jurisdiction over Indian lands to certain states. In similar fashion. in 1959. the United States transferred most of its responsibilities related to the administration of the 1921 Hawaiian Homes Commission Act to the new State of Hawaii. and in addition. imposed a public trust upon the lands that were ceded back to the State for. five purposes. one of which was the betterment of conditions of Native Hawaiians. The Federal authorization for this public trust clearly anticipated that the States constitution and laws would provide for the manner in which the trust would be carried out. In 1978. the citizens of the State of Hawaii exercised this Federallydelegated authority by amending the State constitution in furtherance of the special relationship with Native Hawaiians. The delegates to the 1978 constitutional convention recognized that Native Hawaiians had no other homeland. and thus that the protection of Native Hawaiian subsistence rights to harvest the oceans resources. to fish the fresh streams. to hunt and gather. to exercise their rights to selfdetermination and selfgovemance. and the preservation of Native Hawaiian culture and the Native Hawaiian language could only be accomplished in the State of Hawaii. Hawaiis adoption of amendments to the State constitution to fulfill the special relationship with Native Hawaiians is consistent with the practice of other States that have established special relationships with the native inhabitants of their areas. Fourteen States have extended recognition to Indian tribes that are not recognized by the Federal government. and thirtytwo States have established commissions and offices to address matters of policy affecting the indigenous citizenry. We all know that on January 17. 1893. the government of the Kingdom of Hawaii was overthrown with the assistance of the United States minister and U.S. marines. One hundred years later. a resolution extending an apology on behalf of the United States to Native Hawaiians for the illegal overthrow of the Native Hawaiian government and calling for a reconciliation of the relationship between the United States and Native Hawaiians was enacted into law (Public Law 103150). The Apology Resolution acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people over their national lands to the United States. either through their government or through a plebiscite or referendum. With the loss of their government in 1893. Native Hawaiians have sought to maintain political authority within their community. In 1978. the citizens of the State of Hawaii recognized the longstanding efforts of the native people to give expression to their rights to selfdetermination and selfgovernance by amending the State constitution to provide for the establishment of a quasisovereign State agency.. the Office of Hawaiian Affairs. The State constitution. as amended. provides that the Office is to be governed by nine trustees who are Native Hawaiian and who are to be elected by Native Hawaiians. The Office administers programs and services with revenues derived from lands which were ceded back to the State of Hawaii upon its admissions into the Union of States. On February 23. 2000. the United States Supreme Court issued a ruling in the case of Rice v. Cayetano. The Supreme Court held that because the Office of Hawaiian Affairs is an agency of the State of Hawaii that is funded in part by appropriations made by the State legislature. the election for the trustees of the Office of Hawaiian Affairs must be open to all citizens of the State of Hawaii who are otherwise eligible to vote in statewide elections. Contrary to a mostly erroneous article published today. the Court expressly declined to address the powers and authorities of the Federal gcvernment as they relate to Native Hawaiians. This bill thus does not in any way circumvent the decision of the .Supreme Court in Rice. However. with the Courts ruling. the native people of Hawaii have been divested of the mechanism that was established under the. Hawaii State Constitution that. since 1978. has enabled therneto give expression to their rights as indigenous. native people of the United States to selfdetermination and selfgovernance. H.R. 4904 is designed to address these developments by providing a means under Federal law. consistent with the Federal policy of selfdetermination and selfgovernance for Americas indigenous. native people. for Native Hawaiians to have a status similar to that of the other indigenous. native people of the United States. the First Americans.