S. 147/H.R. 309: Process for Federal Recognition of a Native Hawaiian Government Entity
CRS Report for Congress
S. 147/H.R. 309: Process for Federal Recognition
of a Native Hawaiian Governmental Entity
Updated October 11, 2005
M. Maureen Murphy
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
S. 147/H.R. 309: Process for Federal Recognition of a
Native Hawaiian Governmental Entity
Summary
S. 147/H.R. 309, companion bills introduced in the 109th Congress, represent
an effort to accord to Native Hawaiians a means of forming a governmental entity
that could enter into government-to-government relations with the United States.
This entity would be empowered to negotiate with the State of Hawaii and with the
federal government regarding the transfer of land and the exercise of governmental
power and jurisdiction. There was similar legislation in the 106th, 107th, and 108th
Congresses; the House passed a Native Hawaiian recognition bill, H.R. 4904, in the
106th Congress. While the Senate did not pass H.R. 4904, the bill would have been
enacted through a provision in the Consolidated Appropriations Act, 2001 (H.R.
4577, P.L. 106-554), until a Senate concurrent resolution removed the provision by
correcting the enrollment of H.R. 4577 (S.Con.Res. 162).
This report describes the provisions of the reported version of S. 147; outlines
some federal statutes and recent cases which might be relevant to the issue of federal
recognition of a Native Hawaiian entity; and recounts some legal arguments that have
been presented in the debate on this legislation. It includes a brief outline of the
provisions of a substitute amendment expected to be offered in lieu of the reported
version of S. 147, when Senate debate, which was interrupted by the filing of a
cloture motion on July 29, resumes. The substitute amendment is the product of
discussions that have included congressional, executive, and State of Hawaii
officials. S. 147 has again been placed on the Senate Calendar. This report will be
updated as warranted by legislative activity.
Contents
In troduction ..................................................1
Background ..................................................2
Federal Statutes Relating to Native Hawaiians.......................5
Hawaiian Homes Commission Act, 1920.......................5
The Statehood Act.........................................7
The Apology Resolution....................................7
Other Federal Statutes......................................7
Recent Cases.................................................8
Kahawaiolaa v. Norton.....................................8
Rice v. Cayetano.........................................10
Doe v. Kamehameha Schools................................11
Arakaki v. Lingle.........................................12th
S. 147/H.R. 309, 109 Congress.................................13
S. 147: Major Provisions As Reported by the Senate Committee on
Indian Affairs............................................14
Findings ................................................14
United States Office for Native Hawaiian Relations..............16
Native Hawaiian Interagency Coordinating Group...............16
Process for Preparing a Membership Roll and Extending
Federal Recognition to a Native Hawaiian Governing Entity...16
Negotiation Authority: Land Transfers and Jurisdiction..........17
Claims .................................................17
Indian Gaming Regulatory Act..............................17
Indian Programs and Services...............................17
Issues ......................................................17
Does the Legislation Establish a Racial Classification?...........18
Is This Legislation Within the Power of Congress to Remedy
Past Discrimination?..................................21
Does Congress have authority under the U.S. Constitution’s
Indian Clauses to Enact Legislation That Recognizes a
Native Hawaiian Governmental Entity?...................23
Interpretation of Hawaii’s History............................24
Jurisdictional Issues.......................................27
Potential Cost............................................28
Legislative Action............................................28
Senate Report and Cloture Motion...........................28
Discussions on Language...................................28
Expected Substitute Amendment.............................29
APPENDIX I: Legislation..........................................30
APPENDIX II: Federal Native Hawaiian Programs......................32
S. 147/H.R. 309: Process for Federal
Recognition of a Native Hawaiian
Governmental Entity
Introduction
S. 147/H.R. 309 are similar to bills in earlier Congresses that would provide a
process whereby a Native Hawaiian governmental entity could be organized and
recognized by the federal government in much the same way Indian tribal
governments are recognized by the federal government. Proponents believe that
Native Hawaiians have lost their sovereignty by questionable actions of agents of the
United States government and are entitled to the same kind of official recognition1
accorded to Indian tribes. They also seek this legislation because there is no process
by which a federal administrative agency can accord such recognition to a Native
Hawaiian governmental entity and because they may see such recognition as a means
of saving federal and state programs for Native Hawaiians, which have been
jeopardized by a trend in recent court decisions. In the most recent of these, Arakaki
v. Lingle,2 decided September 1, 2005, a federal appellate court ruled that Hawaii
taxpayers may contest the constitutionality of state funding of Native Hawaiian
programs.
The legislation has a long history.3 The House passed a Native Hawaiianth
recognition bill, H.R. 4904, in the 106 Congress. While the Senate did not pass H.R.
1 See “Joint Statement of Congressmen Neil Abercrombie and Ed Case Before the House
Judiciary Subcommittee on the Constitution on H.R. 309/S. 147, the Native Hawaiian
Government Reorganization Act of 2005,” 2-3 (July 19, 2005), which states that “[t]he
essence of the Akaka bill is to confirm and further define the political relationship between
our federal government and Native Hawaiians. This is nothing more than another
manifestation of the bedrock of our federal policy toward indigenous people; the special
government-to-government trust relationship between our government and federally
recognized indigenous groups.” Senators Akaka and Inouye made a similar point: “this bill
does not propose anything new nor does it afford special treatment to Native Hawaiians.
Rather, this bill acknowledges our special relationship with Native Hawaiians and places
them on an equal footing with the other aboriginal, indigenous people of the United States.
It merely extends the Federal policy of self-governance and self-determination to Native
Hawaiians.” “Joint Statement of Senators Daniel K. Akaka and Daniel K. Inouye Before
the House Judiciary Subcommittee on the Constitution Regarding H.R. 309/S. 147, the
Native Hawaiian Reorganization Act,” 3 (July 19, 2005).
2 ___ F.3d ___, No. 04-15306 (9th Cir. 2005).
3 See Appendix I: Previous Legislation, prepared by Roger Walke, Specialist in American
National Government, Domestic Social Policy Division, CRS.
Appropriations Act, 2001 (H.R. 4577, P.L. 106-554), until a Senate concurrent
resolution removed the provision by correcting the enrollment of H.R. 4577
(S.Con.Res. 162). This report briefly surveys some of the components in the complex
legal background of the legislative effort and issues raised.
Background
Native Hawaiians are similar to American Indians and Alaska Natives in that,
before the arrival of Europeans, their ancestors lived in territory that eventually
became the United States. Their legal status, however, and the history of their
dealings with the federal government differ from those of the other groups.4 While
Native Hawaiians have been included in various federal statutes authorizing
programs for “Native Americans,”5 and in others setting up separate programs for
Native Hawaiians,6 they are not covered by many statutes that require the Bureau of
4 Sources covering the historical background and the major legal developments relating to
the Kingdom of Hawaii include L. Fuchs, Hawaii Pono: an Ethnic and Political History
(1961); and Ralph S. Kuykendall, The Hawaiian Kingdom (1968); Ralph S. Kuykendall and
Grove A. Day, Hawaii: A History, from Polynesian Kingdom to American State (1961).
Other sources that treat the overthrow of the Kingdom, its annexation by the United States,
and subsequent legislation, including the Organic Act, the Hawaiian Homes Commission
Act, the statehood act, the Apology Bill, and the history of federal legislation providing
special treatment for Native Hawaiians, are: Felix S. Cohen’s Handbook of Federal Indian
Law 797-810 (1982 ed); Brian Duus, “Reconciliation Between the United States and Native
Hawaiians: The Duty of the United States to Recognize A Native Hawaiian Nation and
Settle the Ceded Lands Dispute,” 4 Asian-Pac. L. & Pol’y J. 13 (2003); R.H.K. Lei Lindsey,
“Akaka Bill: Legal Realities, and Politics as Usual,” 24 U. Haw. L. Rev. 693 (2002); Le’a
Malia Kanehe, “The Akaka Bill: The Native Hawaiians’ Race or Federal Recognition,” 23
Haw. L. Rev. 857 (2001); Jon Van Dyke, “The Political Status for Native Hawaiian
People,” 17 Yale L & P. Pol. Rev. 95 (1998); Stuart Minor Benjamin, “Equal Protection and
the Special Relationship: the Case of Native Hawaiians,” 106 Yale L. J. 537 (1996).
For an annotated bibliography, see Nancy Carol Carter, “Native Hawaiians: History,
Land and Research,” 21 Legal Reference Services Quarterly 1 (2002). Available at
[ h t t p : / / w w w . h a w o r t h p r e s s . c o m/ s t o r e / E -T e x t / V i e w _ E T e x t . asp?a=3&fn=J 113v21n01_ 0 1
&i=1&s=J113&v=21] (last visited August 19, 2005).
5 For example, Hawaiian Natives are included as “Native Americans” in 25 U.S.C. § 3001
(Native American Graves Protection and Repatriation Act) and 42 U.S.C. § 2991 (Native
American Programs Act of 1974).
6 See, e.g., Hawaiian Homes Commission Act, 42 Stat. 108 (1920), which set aside 200,000
acres of land and established a program of loans and long-term leases for the benefit of
Native Hawaiians; Department of Defense Appropriation Act for Fiscal year 1995, P.L. 103-
335, 108 Stat. 2599, 2652, which provided preferential treatment to Hawaiian Native
businesses in Navy contracts to restore Kaho’olawe Island; Native Hawaiian Education Act,
and, Hawaiian Homelands Homeownership Act of 2000, P.L. 106-569, §§ 511-514, 114
Stat. 2944, 2966-2967, 2990, which provides governmental loan guarantees to qualifying
Native Hawaiian families.
Indian Affairs (BIA) of the Department of the Interior (DOI) to provide services to
Indian tribal governments and Alaska Native corporations or villages.7
BIA provides services to Indians based on tribal affiliation. That tribes are
governments having rights over their land and populace is a foundational element in
the federal government’s relationship with Indians. It derives from legal and
philosophical theories prevalent among the early European colonial powers.8 These
theories, together with the fact that the colonists were outnumbered and had to reach
accommodation with the tribes, gave rise to the practice of treating Indian tribes as
governments and negotiating treaties with them with provisions addressing such
items as land transfers, mutual obligations, and how criminal offenders would be
dealt with. Indian treaty authority and other power to deal with the Indian tribes as
governments reside with the federal government by virtue of authority embedded in
the U.S. Constitution.
The Constitution conveys to Congress the “Power ... to regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes,”9 and to
the President and the Senate, the power to make treaties, including treaties with
Indian tribes.10 Because of the history of U.S. relations with the Indian tribes and by
virtue of the Indian powers contained in the U.S. Constitution, the governmental
status of Indian tribes has long been recognized by the Supreme Court.11 The Court
has found this status to insulate federal programs providing special treatment for
Indians from charges of racial discrimination. It has held that the status of Indian
tribes is of a political nature and that Indian programs are not based on race. The
leading case is Morton v. Mancari,12 validating BIA’s Indian preference hiring
regulations as reasonably and directly related to a non-racial goal, aiding Indian tribal
self-government, in fulfillment of the federal government’s obligation to the Indian
tribes.
Although the United States recognized the Kingdom of Hawaii and entered into
treaties with it,13 it was not the Kingdom of Hawaii which sought and succeeded in
7 See, e.g., Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq., which provides Indian
tribes and Alaska Native Regional Corporations with various grants and rights with respect
to child custody proceedings and Indian child and family programs.
8 See Cohen, “Original Indian Title,” 32 Minn. L. Rev. 28 (1947); Cohen, “The Spanish
Origin of Indian Rights in the Law of the United States,” 32 Geo. L.J. 1 (1942).
9 U.S. Const., Art. I, sec. 8, cl. 3.6
10 U.S. Const., Art. II, sec. 2, cl.2.
11 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (characterizing Indian tribes
as “domestic dependent nations”); Montana v. United States, 450 U.S. 454 (1981)
(describing the parameters of tribal civil jurisdiction); and United States v. Lara, 541 U.S.
193 (2004) (upholding the authority of Congress to delegate to Indian tribes criminal law
jurisdiction over certain offenses committed by non-member Indians).
12 417 U.S. 535, 553 (1974).
13 See Apology Resolution, P.L. 103-150, 107 Stat. 1510 (1993). This Resolution provides
(continued...)
obtaining annexation by the United States. That was achieved by an act of cession
from the Republic of Hawaii, the government formed in 1893 after a revolutionary
force, led by Americans, overthrew Queen Liliuokalani and expropriated
governmental and crown lands without compensation.14 In 1898, under a Joint
Resolution, known as the Newlands Resolution, the United States accepted Hawaii’s
annexation and the lands ceded by the Republic of Hawaii, representing “all public,
government, and crown lands.”15 In 1900, therefore, when the Territory of Hawaii
was established under the Organic Act for the Territory of Hawaii,16 there was no
Native Hawaiian government actually in power.17 No provision was made for a
13 (...continued)
a brief recital of the various events leading to the annexation of Hawaii as well as a
chronology of federal legislation providing programs for Native Hawaiians. The Report by
the Senate Select Committee on Indian Affairs, that accompanied the legislation includes
copies of treaties with the Kingdom of Hawaii. S.Rept. 102-456, 102d Cong., 2d sess. 2 -
14 There is some dispute in interpreting the events surrounding the fall of the Kingdom of
Hawaii. The Supreme Court, in Rice v. Cayetano, 528 U.S. 495, 500-506 (2000), set forth
a history of Hawaii as understood by Congress in enacting the Hawaiian Homes
Commission Act, in 1921, arguably the first federal law addressing the needs of Native
Hawaiians. As related by the Court, Westerners, with the Americans ultimately dominating,th
sought economic and political influence in Hawaii throughout the 19 century, until in 1887,
they forced the Queen to accept a western style constitution that included voting rights for
non-Hawaiians. According to the Court, the 1893 revolution came:
in response to an attempt by the then-Hawaiian monarch, Queen Liliuokalani, to
promulgate a new constitution restoring monarchical control over the House of
Nobles and limiting the franchise to Hawaiian subjects. A so-called Committee
of Safety, a group of professionals and business men, with the active assistance
of John Stevens, the United States Minister to Hawaii, acting with the United
States Armed Forces, replaced the monarchy with a provisional government.
That government sought annexation by the United States. On December 18 of
the same year, President Cleveland, unimpressed and indeed offended by the
actions of the American Minister, denounced the role of the American forces and
called for the restoration of the Hawaiian monarchy.... the Queen could not
resume her former place, however, and, in 1894, the provisional government
established the Republic of Hawaii. The Queen abdicated. Id., at 504-505.
A brief summary of the history surrounding the overthrow and annexation, with copies
of President Grover Cleveland’s address in opposition to a treaty of annexation, is found in
S.Rept. 102-456, 21 - 35 (1992).
15 30 Stat. 750 (1898).
16 Act of Apr. 30, 1900, ch. 339, 31 Stat. 141.
17 This statement is true if one confines the concept of “government” to a defined
organizational entity by which political power over a particular territory is exercised. There
is a counter argument to the effect that there are more meaningful ways to conceptualize
governance in the context of indigenous peoples, including Indian tribes and Native
Hawaiians. It takes the view that “[b]oth groups have maintained their identities through
kinship and social ties, despite powerful assimilative pressures and the intense desire of non-
Indians for their land. They have lost control of their historic territory and thus express their
(continued...)
Native Hawaiian government or for compensation for the lands that had been seized
from Queen Liliuokalani.18 Thus, when the Territory of Hawaii was established,
there was no formal federal acknowledgment by treaty or agreement of the existence
of a Native Hawaiian government similar in status to an Indian tribe. To date, there
has been no federal acknowledgment of the existence of a Native Hawaiian
government and no federal administrative process for a Native Hawaiian entity to
become federally recognized and, thereby, to enter into a government-to-government
relationship with the United States. Such a procedure is available to Native
American groups in the continental United States.19
Federal Statutes Relating to Native Hawaiians
While it is true that since Hawaii’s annexation, there has never been a formal
designation by Congress or the BIA of federal recognition of a Native Hawaiian
governmental entity, there have been various indices of the federal government’s
assumption of special responsibilities toward Native Hawaiians akin to those with
respect to members of Indian tribes. A brief description of some of these statutes
follows.
Hawaiian Homes Commission Act, 1920.20 The Hawaiian Homes
Commission Act (HHCA) set aside a portion of the public lands in Hawaii to be
administered by a Hawaiian Homes Commission, originally a component of the
territorial government, for the benefit of Native Hawaiians. Under the legislation, the
Commission was empowered to grant long-term leases to Native Hawaiians and to
provide other types of assistance to Native Hawaiians. That legislation defined
“Native Hawaiian” as “any descendant of not less than one-half part of the blood of
the races inhabiting the Hawaiian Islands previous to 1778.”21 With the 1959 Hawaii22
Statehood Act, title to the Hawaiian Home Lands was transferred from the federal
government to the state government, and the state government was given and
17 (...continued)
communal ties more through political lobbying than through fixed governmental
institutions.” Note, “International Law as an Interpretive Force in Federal Indian Law,” 116
Harv. L. Rev. 1751, 1768-1769 (2003).
18 A claim by the Queen for compensation from the United States for the crown lands was
denied with the court holding that, although the lands were set aside to assure an income for
the sovereign, they were not personal property and, thus, did not pass to heirs but to
succeeding sovereigns. Liliokalani v. United States, 45 Ct. Cl. 418 (1910). In reaching the
decision, the court relied partially on an 1864 decision of the Supreme Court of the
Kingdom of Hawaii, In the Matter of the Estate of His Majesty Kamehameha IV, Late
Deceased, 2 Haw. 715.
19 25 C.F.R., Part 83. See CRS Report RS21109, The Bureau of Indian Affairs’ Process for
Recognizing Groups as Indian Tribes, by M. Maureen Murphy; and Alva C. Mather, “Old
Promises: The Judiciary and the Future of Native American Federal Acknowledgment
Litigation,” 151 U. Pa. L. Rev. 1827 (2003).
20 Act of July 9, 1921, ch. 42, 42 Stat. 108.
21 42 Stat. 110.
22 P.L. 86-3, 73 Stat. 4 (set out at 48 U.S.C. prec. § 491).
accepted the responsibility of administering the home lands in trust for Native
Hawaiians. Under this legislation, although Hawaii may amend the HHCA, certain
types of amendments must be approved by the federal government, including changes
affecting the qualifications of lessees.23
The legislative history of HHCA is extensive both at the Territorial and
congressional level for a period of years. Although there is some indication that one
of the purposes of the legislation was to permit renewal of leases by large commercial
producers,24 the sponsors of the legislation were intent upon protecting land for
Native Hawaiians that was in danger of being claimed under the homestead laws by
non-Natives and aliens.25 While it is not precedential authority for any federal court
ruling, it might be noted that the Supreme Court of Hawaii, moreover, has ruled that
the purpose of the HHCA was to rehabilitate Native Hawaiians and that “[N]ative
Hawaiians are special objects of solicitude under the act.”26 That court drew on
language in the legislative history27 of HHCA to conclude that there was “an intent
to establish a trust relationship between the government and Hawaiian persons,”28
analogous to the federal trusteeship with American Indians.
23 Virtually all amendments submitted to Congress have been approved. See, e.g., P.L. 99-
24 See Mitsuo Uyehara, The Hawaii Ceded Land Trusts: Their Use and Misuse 16-17 (1977).
See also, Theon Writhe, The Disenchanted Isles: The Story of the Second Revolution in
Hawaii 32-33 (1972), claiming that:
What the sugar planters wanted most was the elimination of the section of
the Organic Act that provided that upon expiration of a lease, valuable sugar land
could be withdrawn from lease lands and opened to homesteaders if twenty-five
applicants should request this. For ten years the planters had tried to get this
provision out of the Organic Act and had been blocked by Congressmen who
wanted to protect homesteading rights. Hidden within the Hawaiian Homes Act
was a clause that said ‘necessary revenues for accomplishment of the purposes’
of the Act would be obtained by ‘authorizing the lease by sale at public auction
of highly cultivated public lands of the Territory for a term not to exceed 15
years, and such lease ... shall not contain the withdrawal clause.’ Thus the lands
of the sugar planters would remain safely under lease without exposure to
homesteading rights of the Hawaiian people.
25 61 Cong. Rec. 3057 (June 27, 1921) (statement of Sen. New); S.Rept. 67-123, 67th Cong.,
families back on the land.” In H.Rept. 66-839, 66 Cong., 2d sess. (1920), the House
Committee on the Territories identified two factors prompting the legislation: the population
decline of Native Hawaiians and the ineffectiveness of previous systems of distributing
lands to them.
26 In re Ainoa, 60 Haw. 487, 488; 591 P.2d 507, 608 (Hawaii 1979).
27 H.Rept. 66-839, at 4, statement of former Secretary of the Interior Franklin K. Lane:
“‘One thing that impressed me...was the fact that the natives of the islands who are our
wards, I should say, and for whom in a sense we are trustees, and falling off rapidly in
numbers....’” [Emphasis in original.]
28 Ahuna v. Department of Hawaiian Home Lands, 640 P. 2d 1161, 1162 (Hawaii 1982).
The Statehood Act. At Hawaii statehood in 1959, the United States
conveyed to the State of Hawaii, with certain exceptions, all public lands in Hawaii
and, therefore, all the lands that had been ceded upon the annexation of Hawaii in
1898.29 These lands were subject to the restriction that they and any proceeds from
their sale or income were to be devoted to certain specified public purposes,
including “the betterment of the conditions of [N]ative Hawaiians, as defined in the30
Hawaiian Homes Commission Act.”
The Apology Resolution. On November 23, 1993, to acknowledge the
100th anniversary of the overthrow of the Kingdom of Hawaii and to offer an apology
to Native Hawaiians on behalf of the United States for the “illegal” overthrow of the
Kingdom of Hawaii, the United States passed legislation known as the Apology
Resolution.31 In it, the Congress “apologizes to Native Hawaiians on behalf of the
people of the United States for the overthrow of the Kingdom of Hawaii on January
17, 1893 with the participation of agents and citizens of the United States and the
deprivation of the rights of Native Hawaiians to self-determination.”32 It sets forth
and characterizes certain events in the history of the Hawaiian monarchy and its
overthrow, as well as the subsequent history of annexation, incorporation into the
United States, and statehood for Hawaii. It also characterizes the attachment of
Native Hawaiians to their land as integral to their well-being and also mentions the
devastation wrought on them by 19th and 20th century social and economic changes.
It voices support for the reconciliation efforts of the State of Hawaii and the United
Church of Christ with respect to the Native Hawaiians.
Other Federal Statutes. Although Congress has not recognized a Native
Hawaiian governmental entity analogous to a federally recognized Indian tribe, it has
enacted an array of laws that provide special treatment for Native Hawaiians similar
to and sometimes on an equal basis with that provided to members of federally
recognized Indian tribes. A list of 160 federal laws specifically affecting Native33
Hawaiians has been assembled by Hawaii’s congressional delegation. Many of
these laws provide programs34 which are considered by many to be essential to the
well-being of Native Hawaiians.
29 P.L. 86-3, 73 Stat. 4, § 5(g).
30 P.L. 86-3, 73 Stat. 4, § 5(f).
31 P.L. 103-150, 107 Stat. 1510 (1993).
32 P.L. 103-150, Section 1, 107 Stat. 1510, 1513.
33 Brief for the Hawai’i Congressional Delegation as Amicus Curiae, at A-1, Rice v.
Cayetano. 528 U.S. 495 (No. 98-518). This list may also be found in Table of Federal Acts
Affecting Native Hawaiians, appended to Testimony of Hawaii Attorney General Mark J.
Bennett before the House Judiciary Subcommittee on the Constitution, Tuesday, July 19,
34 See Appendix II, Federal Native Hawaiian Programs, prepared by Roger Walke,
Specialist in American National Government, Domestic Social Policy Division, CRS.
Recent Cases
In Kahawaiolla v. Norton,35 the exclusion of Native Hawaiian groups from the
BIA’s administrative process for recognizing government-to-government relations
with Indian tribes was upheld against a charge of racial discrimination. Norton is
among a group of cases that involve questions of whether Native Hawaiian is a race-
based classification or whether it may be viewed as a political classification and,
therefore, benefit from the line of the case law upholding federal Indian statutes.
None of the cases, however, has reached the question of whether or not Congress
may establish a government-to-government relationship with Native Hawaiians,
similar to that which the courts have recognized with respect to Indian tribes and
Alaska Native entities. Furthermore, the outcome of some of these cases has served
as impetus for legislation such as S. 147/H.R. 309 that would provide a process for
recognition of a Native Hawaiian governing entity.36
Kahawaiolaa v. Norton. This case involves a facial challenge to the DOI
tribal acknowledgment or recognition regulations.37 These regulations are available38
to groups of Indians or Alaska Natives in the continental United States not yet
accorded federal recognition by the DOI. These regulations afford such groups a
means of establishing their existence as an Indian tribe and, thus, entitled to “the
protection, services, and benefits of the Federal government available to Indian tribes
by virtue of their status as tribes.... and to the immunities and privileges available to
other federally acknowledged Indian tribes by virtue of their government-to-39
government relationship with the United States.” In the litigation, Native
Hawaiians and Native Hawaiian organizations sought to have the regulations
declared unconstitutional and DOI restrained from enforcing them on Equal
Protection grounds.40
The main contention was that DOI was engaging in racial discrimination in
violation of the Fifth Amendment by denying Native Hawaiians access to the federal
35 386 F. 3d 1271 (9th Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2001 (2005).
36 Some supporters of S. 147/H.R. 309 view congressional legislation providing for
recognition of a Native Hawaiian governing entity as the best way of safeguarding the
various federal programs, with their annual funding of more than $69 million per year, in
view of the success of recent legal challenges. See, e.g., DePledge Derrick, “Akaka Bill
Gaining Higher Profile,” Honolulu Advertiser (August 10, 2005); 2005 WLNR 12535778.
37 25 C.F.R., Part 83.
38 “Continental United States” is defined to mean “the contiguous 48 states and Alaska.”
39 25 C.F.R. § 83.2. Such recognition carries with it “important rights and protections to
Indian tribes, including limited sovereign immunity, powers of self-government, the right
to control the lands held in trust for them by the federal government, and the right to apply
for a number of federal services.” Kahawaiolaa v. Norton, 386 F. 3d 1271, 1272.
40 They also challenged the Indian Reorganization Act, 25 U.S.C. §§ 461 et seq., according
to which Indian tribes may organize as governments and adopt constitutions, and the Indian
Self-Determination and Educational Assistance Act, 25 U.S.C. §§ 450 et seq., which also
excludes Native Hawaiians.
acknowledgment process. At the trial court level, a federal district court had held
that determining which groups of Native Americans to recognize was a political
question committed to the Legislative and Executive Branches and, thus, not
susceptible to judicial scrutiny.41 It found that since Congress had not dealt with
Native Hawaiian groups as governments, DOI regulations were implementation of
congressional policy. The trial court also found that the regulations did not violate
Equal Protection because they satisfied the rational basis test articulated in Morton
v. Mancari,42 and were legitimate exercises of the congressional power in Indian
affairs.
The appellate court viewed the issue differently. It did not focus on whether the
decision to extend federal recognition to one group and not to another was a political
question. Instead, it looked to the precise claim of the Native Hawaiians and
determined that the constitutionality of DOI’s decision to exclude Native Hawaiians
from participating in the federal acknowledgment process is subject to judicial
review under the Federal Administrative Procedure Act.43 It further determined that
the deferential rational basis standard of Morton v. Mancari applied since the
regulations dealt with recognition of political entities. Excluding Native Hawaiians
was found to meet the rational basis test because the acknowledgment regulations
were viewed as being grounded in the Indian Reorganization Act, which has a
provision excluding Hawaii.44 The court noted that Congress had similarly excluded
Native Hawaiians from coverage under the Indian Self-Determination and Education
Assistance Act.45 The court also seemed to imply that congressional differentiation
between Indian tribes and Native Hawaiians dates back to the 19th century when
treaties were entered into with the Kingdom of Hawaii in 1875 and 1887 despite the
existence of an 1871 law forbidding treaties with Indian tribes.46 It concluded that
“Congress has evidenced an intent to treat Hawaiian [N]atives differently from other
indigenous groups”47 and has done so because “the history of the indigenous
Hawaiians, who were once subject to a government that was treated as a co-equal
sovereign alongside the United States until the governance over internal affairs was
entirely assumed by the United States, is fundamentally different from that of
indigenous groups and federally recognized Indian tribes in the continental United
States.”48 Finally, the appellate court looked at the different sets of entitlements
Congress has established for Native Hawaiians and for Indians and determined that
it is rational for Congress to establish two sets of programs for the two different
groups and, given that fact, equally rational for DOI to exclude Native Hawaiians
41 Kahawaiolaa v. Norton, 222 F. Supp. 2d 1213 (D. Haw. 2002). The court cited Baker v.
Carr, 369 U.S. 186, 215-217 (1969), which had included in its recital of issues that involve
the political question doctrine determinations of tribal status.
42 417 U.S. 535, 553 (1974).
43 5 U.S.C. § 551 et seq.
44 25 U.S.C. § 473.
45 25 U.S.C. § 450 et seq.
46 25 U.S.C. § 71.
47 386 F. 3d 1271, 1281.
48 Id., at 1282.
from recognition as an Indian tribe.49 Although the court upheld the DOI decision
to exclude Native Hawaiians from the acknowledgment regulations, it expressed
dissatisfaction with its decision to do so:
Although we conclude that the Department of Interior’s exclusion of Hawaiians
passes constitutional muster, we recognize that, in many ways, the result is less
than satisfactory. We would have more confidence in the outcome if the
Department of Interior had applied its expertise to parse through history and
determine whether [N]ative Hawaiians, or some [N]ative Hawaiian groups, could
be acknowledged on a government-to-government basis. It would have been
equally rational, if perhaps not more so, for the Department to have decided to50
undertake that inquiry in the first instance.
Rice v. Cayetano. In Rice v. Cayetano,51 the Supreme Court struck down,
as violating the Fifteenth Amendment prohibition against racial discrimination in
voting, a provision of Hawaii’s Constitution essentially limiting to Native Hawaiians
the right to vote in elections for the trustees of the Office of Hawaiian Affairs
(OHA), a state agency charged with operating programs for Native Hawaiians. OHA
program responsibilities are funded by a set portion of the state’s public lands
revenues, i.e., representing part of the lands ceded to the United States by the
Republic of Hawaii.52 The case did not involve the legitimacy of state programs
benefitting Native Hawaiians, nor did it involve the question of whether a purely
private Native Hawaiian organization could limit its franchise. The issue was the
legality of closing the voting rolls in an election for a state office to everyone other
than persons of Native Hawaiian lineage. The Court concluded that limiting voting
to persons whose ancestors were in Hawaii at a specific time was essentially using
“[a]ncestry as a proxy for race.” 528 U.S. 495, 514. With respect to the argument
advanced by the State of Hawaii that limiting the voting to Native Hawaiians could
be sustained under the same rationale that has been applied to members of Indian
tribes in cases such as Morton v. Mancari, the Court stated:
If Hawaii’s restriction were to be sustained under Mancari we would be required
to accept some beginning premises not yet established in our case law. Among
other postulates, it would be necessary to conclude that Congress, in reciting the
purposes for the transfer of lands to the State — and in other enactments such as
the Hawaiian Homes Commission Act and the Joint Resolution of 1993 — has
determined that [N]ative Hawaiians have a status like that of Indians in organized
tribes, and that it may, and has delegated to the State a broad authority to
49 “Granting federal recognition to [N]ative Hawaiians as an Indian tribe or tribes would
serve to blur the categorical distinction between the two groups, frustrate at least to some
degree Congress’ intent to treat the two groups differently, and allow [N]ative Hawaiians
to obtain greater benefits than the members of all American Indian tribes.” Id., at 1283.
50 Id., at 1283.
51 528 U.S. 495 (2000).
52 These lands have passed through the various governing authorities of Hawaii, including
the Hawaiian monarchy; the provisional government of 1894; the United States, pursuant
to the 1898 Newlands Resolution of annexation, 30 Stat. 750; and the government of the
Territory of Hawaii pursuant to the Hawaiian Organic Act of 1900, 31 Stat. 159. The
Hawaiian Home Lands are not administered by the Office of Hawaiian Affairs.
preserve that status. These propositions would raise questions of considerable
moment and difficulty. It is a matter of some dispute, for instance, whether
Congress may treat [N]ative Hawaiians as it does Indian tribes....The State’s
argument fails for a more basic reason. Even were we to take the substantial step
of finding authority in Congress, delegated to the State, to treat Hawaiians or
[N]ative Hawaiians as tribes, Congress may not authorize a State to create a53
voting scheme of this sort.
The dissent, which would have upheld Hawaii’s election law, endorsed the view
that congressional Indian affairs power extends to all the indigenous peoples of the
United States and that a trust relationship has been established with Native
Hawaiians by virtue of their state of dependency at annexation and has been
manifested in the protective legislation enacted by Congress since 1920:
The descendants of Native Hawaiians share with the descendants of the Native
Americans on the mainland or in the Aleutian Islands not only a history of
subjugation at the hands of colonial forces, but also a purposefully created
specialized ‘guardian-ward’ relationship with the Government of the United
States. It follows that legislation targeting the [N]ative Hawaiians must be
evaluated according to the same understanding of equal protection that this Court
has long applied to the Indians on the continental United States; that ‘special
treatment ... be tied rationally to the fulfillment of Congress’ unique obligation’54
toward the native peoples.
Doe v. Kamehameha Schools. A third recent decision, Doe v.
Kamehameha Schools,55 involved the admissions policy of the Kamehameha Schools
(Kamehameha), which are privately funded and operated, serving 16,000 Native
Hawaiian students. Kamehameha has functioned since 1886 under a trust established
in the will of Princess Bernice Pauahi Bishop, a descendant of the dynasty that ruled
Hawaii in the 19th century. Its admission policy essentially excludes persons not able
to trace their lineage to aboriginal inhabitants of the Hawaiian Islands, i.e., those in
Hawaii before Captain James Cook, the first Westerner, who landed in 1778. The
court found the policy to violate 42 U.S.C. § 1981, a federal civil rights statute that
prohibits racial discrimination in the offering and making of private contracts. The
court found that there was no requirement in the trust instrument that enrollment be
limited to Native Hawaiians. Kamehameha had conceded that the admissions policy
was based on race. The Court ruled that, rather than the strict scrutiny standard
applicable to race-based classifications in Fourteenth Amendment Equal Protection
cases,56 it would apply a test based on Title VII of the Civil Rights Act of 1964.57
53 528 U.S. 495, 518-519.
54 528 U.S. 495, 534 (quoting Morton v. Mancari, 417 U.S., at 555) (Stevens, J., dissenting).
55 416 F. 3d 1025 ( 9th Cir. 2005).
56 “[R]acial classifications ... must serve a compelling governmental interest, and must be
narrowly tailored to further that interest.” Adarand Constructors, Inc. v. Pena, 525 U.S.
57 42 U.S.C. §§ 2000(e) et seq. The standard is derived from Patterson v. McLean Credit
Union, 491 U.S. 164 (1989).
Under that test, Kamehameha’s admissions policy could only survive if it could be
demonstrated to advance a legitimate nondiscriminatory purpose.
Kamehameha offered at least three possible arguments, each of which was
rejected by the court. The first, justification as an affirmative action plan, was
rejected because, unlike affirmative action plans that had been upheld by the
Supreme Court, Kamehameha’s admission policy ignored the rights of other races.58
The second, inferring congressional intent as to how to interpret § 1981 from
scattered statutes, was rejected on relevance grounds as well as for lack of precedent.
The third, whether a special relationship exists with Native Hawaiians to preclude the
racial classification, was not analyzed because Kamehameha had conceded that the
preference was based on race. In a dissent, Judge Graber, stated that she would have
upheld the admission policy. Essentially, she would infer congressional intent to
permit the Native Hawaiian preference to continue at the Kamehameha Schools by
harmonizing 42 U.S.C. § 1981, as amended in 1991, with another statute enacted that
same year. According to her reasoning, Congress, in amending § 1981, and in the
same year creating a demonstration program for Native Hawaiian education operated
by Kamehameha,59 could not have intended § 1981 to preclude Kamehameha’s
preferential treatment of Native Hawaiians.60
Arakaki v. Lingle. On September 1, 2005, the U.S. Court of Appeals for the
Ninth Circuit, in Arakaki v. Lingle,61 ruled that Hawaii taxpayers have standing to
challenge the constitutionality of using state funds to provide services to Native
Hawaiians under various state programs administered by Hawaii’s Department of
Hawaiian Home Lands, the Hawaiian Home Commission, and the Office of
Hawaiian Affairs. In the same opinion, the court upheld the dismissal of claims
against the United States and found that none of the laws cited by the plaintiffs,
including the HHCA and the Statehood Act, has established the United States as a
current trustee.
58 The criteria under which affirmative action programs have been upheld, as set forth in
United Steelworkers v Weber, 443 U.S. 193 (1979), are: (1) having a purpose of redressing
a practice that had resulted in racial imbalance; (2) not being unnecessarily unfair to those
not in the favored race; and (3) being designed as a temporary measure — to redress the
imbalance not to perpetuate a balance.
59 20 U.S.C. § 4904(a)(1991) (repealed in 1994).
60 “I disagree that the mere fact that the Kamehameha Schools grants an exclusive preference
to Native Hawaiian applicants is dispositive of this case. Indeed, the inescapable conclusion
from the statutory context is that in 1991 Congress intended that a preference for Native
Hawaiians, in Hawaii, by a Native Hawaiian organization, located on the Hawaiian
monarchy’s ancestral lands, be upheld because it furthers the urgent need for better
education of Native Hawaiians, which Congress had identified explicitly in 1988.” 416 F.
61 ___ F.3d ___, No. 04-15306 (9th Cir. 2005). The district court had dismissed the entire
suit. Arakaki v. Lingle, 305 F. Supp. 2d 1161 (D. Haw. 2004).
S. 147/H.R. 309, 109th Congress
Two bills in the 109th Congress, S. 147 and H.R. 309, address the issue of
recognition of a Native Hawaiian governing entity. These are similar in purpose to
bills introduced in three earlier Congresses.62 Hearings and committee reports in
connection with these measures provide an extensive record of the factors prompting
this legislation. An abbreviated history of its background, from the period before
Captain Cook’s arrival, through the period of “increasing contact and influence of
foreigners and foreign powers” and treaties with the United States, up to and
including the HHCA, the Admission Act, and the Apology Resolution, is found in
the report accompanying S. 147; a fuller treatment may be found in S. Rep. 108-85,
which accompanied S. 344 in the 108th Congress.
In reporting out S. 147, the Senate Indian Affairs Committee linked the
legislation to the reconciliation process encouraged by the Apology Resolution and
the 2000 report issued by the Departments of Justice and the Interior, which included
in its recommendations the following statement:
It is evident from the documentation, statements, and views received during the
reconciliation process undertaken by Interior and Justice pursuant to Public Law
103-150 (1993), that the Native Hawaiian people continue to maintain a distinct
community and certain governmental structures and they desire to increase their
control over their own affairs and institutions. As a matter of justice and equity,
this report recommends that the Native Hawaiian people should have
self-determination over their own affairs within the framework of Federal law,
as do Native American tribes. For generations, the United States has recognized
the rights and promoted the welfare of Native Hawaiians as an indigenous people
within our Nation through legislation, administrative action, and policy
statements. To safeguard and enhance Native Hawaiian self-determination over
their lands, cultural resources, and internal affairs, the Departments believe
Congress should enact further legislation to clarify Native Hawaiians’ political
status and to create a framework for recognizing a government-to-government63
relationship with a representative Native Hawaiian governing body.
The goal of the legislation is to provide “a process within the framework of
Federal law for the Native Hawaiian people to exercise their inherent rights as a
distinct, indigenous, native community to reorganize a Native Hawaiian governing
entity for the purpose of giving expression to their rights as native people to self-
62 Bills in earlier Congresses include H.R. 665, H.R. 4282, and S. 344 in the 108th Congress;
H.R. 617, S. 746, and S. 1783 in the 107th Congress; and, H.R. 4904 (passed by the Houseth
on September 26, 2000) and S. 2899 in the 106 Congress. While the Senate did not pass
H.R. 4904, the bill would have been enacted through a provision in the Consolidated
Appropriations Act, 2001 (H.R. 4577, P.L. 106-554), until a Senate concurrent resolution
removed the provision by correcting the enrollment of H.R. 4577 (S.Con.Res. 162).
63 S.Rept. 109-68, 7-8 (109th Cong., 1st sess. 2005), quoting, Department of Justice and
Department of the Interior, “From Mauka to Makai: the River of Justice Must Flow Freely:
Report on the Reconciliation Process Between the Federal Government and Native
Hawaiians” (October 2, 2000). Available at [http://purl.access.gpo.gov/GPO/LPS14622].
(Hereafter cited as From Mauka to Makai.)
determination and self-governance.”64 Furthermore, “when that process has been
completed, [the goal is] 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.”65
S. 147: Major Provisions As Reported by the Senate
Committee on Indian Affairs
As introduced, the Senate and House versions were similar. The Senate bill was
reported with amendments. Subsequently, discussions among staff of the legislative
and executive branches and the State of Hawaii have resulted in a substitute
amendment, which is expected to be introduced when Senate debate resumes. A
brief summary of the provisions of the substitute amendment follows, infra p. 29.
The following summarizes the bill as reported by the Senate Committee on Indian
Affairs.
Findings. The legislation is prefaced by findings to the effect that the
Constitution vests Congress with power to address “the conditions of the indigenous
native people of the United States,” and that Native Hawaiians “are indigenous,
native people of the United States.”66 It continues with findings as to the United
States’ “special political and legal responsibility to promote the welfare of native
people of the United States, including Native Hawaiians”; the existence of confirmed
treaties between the United States and the Kingdom of Hawaii, between 1826 and
1893, which recognized the sovereignty of that Kingdom; and the enactment of the
HHCA.67 There are findings that the HHCA set aside 203,500 acres “to address the
conditions of Native Hawaiians ... to assist “the members of the Native Hawaiian
community in maintaining distinct native settlements throughout the State of
Hawaii,” and that there are approximately 6,800 Native Hawaiian families residing
on the Hawaiian Home Lands and 18,000 eligible Native Hawaiians on a waiting list
for leases.68 There are also findings with respect to trust lands ceded by the United
States to the State of Hawaii by compact at admission for five purposes, one of which
is “betterment of the conditions of Native Hawaiians”; that the revenues of these
lands are part of a public trust, the assets of which have never been completely
inventoried or segregated; and, that Native Hawaiians have sought access to these
ceded lands to settle and maintain communities throughout the State.69 In the
legislation, there is also a finding that “the Hawaiian Home Lands and other ceded
lands provide an important foundation for the ability of the Native Hawaiian
community to maintain the practice of Native Hawaiian culture, language, and
64 S. 147, § 2 (19).
65 S. Rept. 109-68, at 1.
66 S. 147, § 2(1) and (2), 109th Cong., 1st sess.
67 Id., §§ 2 (3), (4), and (5).
68 Id., §§ 2 (6) and (7).
69 Id., §§2 (8) and (9).
traditions, and for the survival and economic self-sufficiency of the Native Hawaiian
people,”70
Three subsections of the findings relate to the Apology Resolution, noting that
it: (1) “acknowledges that the overthrow of the Kingdom of Hawaii occurred with
the active participation of agents and citizens of the United States and...that the
Native Hawaiian people never directly relinquished to the United States their claims
to their inherent sovereignty as a people over their national lands, either through the
Kingdom of Hawaii or through a plebiscite or referendum,” and (2) expresses a
commitment of Congress and the President, among other things, “to acknowledge
the ramification of the overthrow of the Kingdom of Hawaii.”71 Further findings
include one that “Native Hawaiians continue to maintain other distinctly native areas
in Hawaii”;72 “to maintain their separate identity as a distinctive native community
through cultural, social, and political institutions, and to give expression to their
rights as a native people to self-determination, self-governance, and economic self-
suffi ci ency.” 73
There are also findings to the effect that Congress “has declared that the United
States has a special responsibility for the welfare of the native peoples of the United
States, including Native Hawaiians”; that it “has identified Native Hawaiians as a
distinct group of indigenous, native people of the United States within the scope of
its authority under the Constitution, and has enacted scores of statutes on their
behalf”: and that it “has delegated broad authority to the State of Hawaii to
administer some of the United States’ responsibilities as they relate to the Native
Hawaiian people and their lands.”74 There are specific findings that “the United
States has recognized and reaffirmed the special political and legal relationship with
the Native Hawaiian people” through the Admission Act and that “the United States
has continually recognized and reaffirmed that “Native Hawaiians have a cultural,
historic, and land-based link to the aboriginal, indigenous, native people who
exercised sovereignty over the Hawaiian Islands; ... [that] Native Hawaiians have
never relinquished their claims to sovereignty or their sovereign lands; ... [that] the
United States extends services to Native Hawaiians because of their unique status as
the indigenous, native people of a once-sovereign nation with whom the United
States has a political and legal relationship; and ... [that] the special trust relationship
of American Indians, Alaska Natives, and Native Hawaiians to the United States
arises out of their status as aboriginal, indigenous, native people of the United
States.”75
70 Id., § 2 (10).
71 Id. §§ 2 (12), (13), and (14).
72 Id., § 2 (11).
73 Id., § 2, (15).
74 Id., § 2 (22) (B).
75 Id., § 2 (22) (D). There is also a finding that the State of Hawaii supports the legislation,
on the basis of two unanimous resolutions passed by the state legislature in 2000 and 2001
and in testimony before the Senate Committee on Indian Affairs by the Governor of Hawaii
(continued...)
United States Office for Native Hawaiian Relations. The legislation
would establish, within DOI, a United States Office for Native Hawaiian Relations
to continue the reconciliation process with Native Hawaiian people and, upon the
recognition of the Native Hawaiian governing entity, to administer and coordinate
relations with that entity.
Native Hawaiian Interagency Coordinating Group. There would also
be a Native Hawaiian Interagency Coordinating Group, comprised of officials from
each federal agency administering Native Hawaiian programs or involved in actions
significantly impacting Native Hawaiian resources, rights, or lands, with the
Department of the Interior as the lead agency. Among its functions would be
coordinating federal programs affecting Native Hawaiians and ensuring that each
federal agency develops a consultation policy with respect to Native Hawaiian people
and with the Native Hawaiian governing entity to be established.
Process for Preparing a Membership Roll and Extending Federal
Recognition to a Native Hawaiian Governing Entity. Under the bill, a
Commission, consisting of nine Native Hawaiians with expertise in determining
Native Hawaiian genealogy, would be appointed by the Secretary of the Interior
(SOI), to prepare a roll and establish standards for documenting eligibility for
inclusion on the roll. The Commission’s term expires upon federal recognition of the
Native Hawaiian governing entity. The roll would be limited to eligible adult Native
Hawaiians who choose to participate in the process. Native Hawaiians, at least 18
years old, who apply for enrollment and are certified under a process specified in the
bill, would be eligible for inclusion on the roll. “Native Hawaiian” is defined in
terms of being: (1) any individual who is one of the “aboriginal, indigenous, native
people” who resided in Hawaii on or before January 1, 1893, and exercised
sovereignty in the Hawaiian archipelago, and the lineal descendants of such an
individual, and (2) any individual who is one of the indigenous native people of
Hawaii who was eligible in 1921 for programs authorized by the HHCA and any
direct lineal descendant of that individual. The Commission may consult with Native
Hawaiian organizations, Hawaiian state agencies, and other entities in the field of
Native Hawaiian ancestry and lineal descent. The roll is to be submitted to SOI for
certification within two years of the Commission’s formation. The Secretary is
authorized to establish a procedure for appealing exclusions with respect to the roll.
The roll is to be published in the Federal Register, when certified; if the Secretary
fails to act within 90 days after a roll is submitted, the Commission is to publish the
roll, which shall thereby permit those listed to participate in setting up the Native
Hawaiian governing entity.
Under the bill, adult members of the Native Hawaiian community listed on the
roll as published are authorized to develop criteria for candidates to serve on the
Native Hawaiian Interim Governing Council, determine the structure of that Council,
and elect members to the Council from the roll as published. The Council is to
represent those on the roll. It may enter into contracts for funding from a state or
federal agency; it may conduct a referendum among members listed to determine
75 (...continued)
on February 25, 2003, and March 1, 2005. Id., § 2(23).
what is to be included in the governing documents of the Native Hawaiian governing
entity. Such a document may include proposals for: citizenship criteria;
governmental powers, privileges, and immunities; and, civil rights of citizens and
others affected by the Native Hawaiian governing entity. The Council may also hold
elections to ratify the proposed organic governing documents and, when such
documents are certified by SOI, to elect officers of the Native Hawaiian governing
entity. The legislation specifies that once the documents are certified and the
elections held, the Native Hawaiian governing entity becomes the federally
recognized representative governing body of the Native Hawaiian people, and the
political and legal relationship between the United States and the Native Hawaiian
governing entity would be reaffirmed.
Negotiation Authority: Land Transfers and Jurisdiction. The
legislation authorizes the Native Hawaiian governing entity and the federal
government to enter into negotiations with the State of Hawaii with respect to land
transfers, exercise of government authority over any lands transferred; the exercise
of civil and criminal jurisdiction, delegation of governmental powers to the Native
Hawaiian governing entity by the federal government and the State of Hawaii; and
“any residual responsibilities of the United States and the State of Hawaii.” It
authorizes the parties to submit any required amendments to existing law required
following these negotiations. Proposed amendments to federal law are to be
submitted to the Senate Indian Affairs and Energy and Natural Resources
Committees and the House Committee on Resources. Proposed amendments to state
laws are to be submitted to the Governor and the legislature of the State of Hawaii.
Claims. The legislation specifies that it is not to be interpreted as settling any
claim against the United States and specifies a 20-year statute of limitations for any
claim in existence upon passage of the bill that is asserted by the Native Hawaiian
governing entity on behalf of the Native Hawaiian people relating to the legal and
political relationship between the United States and the Native Hawaiian people.76
Indian Gaming Regulatory Act. A provision specifies that nothing in the
legislation is to be construed as authorizing the Native Hawaiian governing entity to
conduct gaming under the Indian Gaming Regulatory Act. 25 U.S.C. § 2701 et seq.
Indian Programs and Services. A provision in the bill specifies that
because Native Hawaiians and the Native Hawaiian governing entity are eligible for
services to Native Hawaiians under existing law, nothing in the legislation provides
authorization for eligibility “to participate in any Indian program or service to any
individual or entity not otherwise eligible for the program or service under applicable
federal law.”
Issues
What follows is a brief summary of some of the major legal issues that have
been raised with respect to the legislation. After S. 147 was reported, as noted
76 See p. 29 infra, for treatment of claims, causes of action, and sovereign immunity in the
substitute amendment.
previously, discussions among Executive and Legislative Branch staff and
representatives of the Governor of Hawaii have produced language that is to be
included in a substitute amendment to be offered in lieu of the reported version when
Senate debate resumes.77
Does the Legislation Establish a Racial Classification? The Supreme
Court held, in Rice v. Cayetano, that the State of Hawaii’s election law that limited
to Native Hawaiians the right to cast ballots in elections for officials who
administered state programs for Native Hawaiians offended the Fifteenth
Amendment’s prohibition on racial discrimination in voting. This ruling has opened
the way for cases, such as Arakaki v. Lingle, which include the issue of whether or
not “Native Hawaiian” is a racial classification and, therefore, subject to a strict
scrutiny standard of judicial review. If it can be established that Native Hawaiian is
a political classification, similar to that of Indian tribal member, the standard of
review would be a rational basis test and would be framed in terms of whether
special treatment for Native Hawaiians is rationally related to trust or guardianship
obligations that the United States assumes with respect to its indigenous peoples.
Testimony at a July 19, 2005, hearing of the Subcommittee on the Constitution
of the House Committee on the Judiciary raised a variety of issues with respect to78
H.R. 309. According to one view, the legislation “focuses on race to the exclusion
of all potentially relevant factors [and] would force the federal government itself to
impose and enforce a racial test before any sovereign Native Hawaiian entity even
exists .... S. 147’s racial test is, therefore, offensive to the Constitution.”79
Proponents of the measure do not view the legislation as race-based. They align
Native Hawaiians with Indians and, thereby, subject to the provisions in the U.S.
Constitution giving power to Congress in Indian affairs, including the power to
establish a political relationship. The Attorney General of Hawaii, for example,
argues that the word “Indian” was not meant to have a narrow meaning, but to80
include all indigenous peoples. He cites Supreme Court cases sustaining
77 See infra, pp. 28-30.
78 [http://judiciary.house.gov/oversight.aspx?ID=185]. (Last visited August 19, 2005).
79 One contention is that the legislation is race-based because its definition of “Native
Hawaiian” is based on lineal descent. Senate Republican Policy Committee, “Why Congress
Must Reject Race-Based Government for Native Hawaiians,” 3 (June 22, 2005).
[http://rpc.senate.gov/_files/Jun2205NatHawSD.pdf] (Last visited August 23, 2005). See
also “Statement of Bruce Fein on the Constitutionality of Creating a Race-Based Native
Hawaiian Government (H.R. 309) Before the House Judiciary Subcommittee on the
Constitution,” (July 19, 2005). [http://judiciary.house.gov/media/pdfs/fein071905.pdf] (last
visited August 23, 2005). (Hereafter cited as Bruce Fein’s Testimony.) Mr. Fein challenges
the validity of many of the specific findings in H.R. 309 and speculates that passage of this
bill could harm the harmonious racial diversity that has existed in Hawaii and inspire other
racial and ethnic groups in the United States to raise similar claims. He mentions MEChA
(Movimiento Estudiantil Chicano de Aztlan), a Mexican American organization seeking to
reclaim Aztlan land from 9 western states.
80 See, e.g., “Position Statement of the Attorney General of the State of Hawaii: H.R. 309/S.
(continued...)
congressional authority over Alaska Natives, non-tribal Indians, and the Pueblos of
New Mexico indicating that if Congress determines to formalize a special
relationship with an Hawaiian Native governmental entity, the legislation will be
upheld as a valid exercise of Indian affairs power. He argues that Native Hawaiians
meet the standard that the Supreme Court used, in Montoya v. United States,81 to
determine what constitutes a tribe: they descend from common ancestors; they
inhabit a particular territory; and they lived in a self-governing community prior to
the arrival of the Europeans.82
At a March 1, 2005, Senate Committee on Indian Affairs hearing on S. 147,
Hawaii’s Governor, Linda Lingle, directly confronted the charge that the legislation
is race-based both by invoking the history of U.S. treaty-making with the Hawaiian
Kingdom and the history of the questionable events culminating in annexation as
evidence of a political and not a racial relationship with the Native Hawaiian people;
she also claimed that without S. 147/H.R. 309, the treatment of Native Hawaiians is
race-based discrimination when contrasted with treatment of Indians and Alaska
Natives, with respect to self-determination. She stated:
The United States is inhabited by three indigenous peoples — American
Indians, Native Alaskans and Native Hawaiians.
While these three indigenous groups differ in culture, history, and
anthropological origin, all share three fundamental attributes: (1) they were here
long before any European explorer ever set foot on the North American continent
or the Hawaiian archipelago; (2) they lived according to their own governmental
structures on their homelands long before the federal government of the United
States was imposed upon them; and (3) the United States historically
acknowledged their existence as distinct nations.
Congress has given two of these three populations full self-
governance rights. The Native Hawaiian Government Reorganization
Act allows Native Hawaiians to receive parity with the nation’s other
indigenous peoples. To withhold recognition of the Native Hawaiian
people therefore amounts to discrimination since it would continue to83
treat the nation’s three groups of indigenous people differently.
In the Rice v. Cayetano litigation, moreover, the United States, in its amicus
brief, took the position that Congress has already designated Native Hawaiians as a
group subject to federal protection under the Indian affairs powers and, thus,
insulated from an equal protection challenge:
80 (...continued)
Bennett before the House Judiciary Subcommittee on the Constitution, Tuesday, July 19,
81 180 U.S. 261 (1901).
82 Position Statement of Attorney General of Hawaii, supra, n. 80.
83 “Testimony on Senate Bill 147, the Native Hawaiian Government Reorganization Act of
Congress has identified Native Hawaiians as a distinct indigenous group
within the scope of its Indian affairs power, and has enacted dozens of statutes
on their behalf pursuant to its recognized trust responsibility. Congress’
determination that Native Hawaiians constitute a distinct indigenous group for
whom it may enact special legislation is entirely rational. Native Hawaiians have
a cultural, historic, and land-based link to the indigenous people who have
exercised sovereignty over the Hawaiian Islands, and that group has never
relinquished its claim to its sovereignty or it sovereign lands.
Petitioner seeks to derive from the Indian Commerce Clause’s
reference to ‘Tribes’ a requirement that Congress may only take
action on behalf of indigenous groups with present-day tribal
governments. To the framers of the constitution, however, an Indian
tribe was simply a distinct group of indigenous people set apart by
their common circumstances, a definition that Native Hawaiians
satisfied in 1778 and satisfy today. Moreover, Congress has
concluded that it has a trust obligation to Native Hawaiians precisely
because it bears responsibility for the destruction of their government
and their loss of sovereignty over their land. The Constitution is not
so self-defeating as to make the very reasons that Congress has
concluded that it has a trust responsibility serve as an obstacle to the
fulfillment of that responsibility. Nor is the existence of a tribal
government necessary to make legislation on behalf of indigenous
people non-racial. Congress does not extend services to Native
Hawaiians because of their race, but because of their unique status as
the indigenous people of a once-sovereign nation as to whom the84
United States has established a trust relationship.
One of the factors at the base of the charge that the legislation is race-based is
the use of lineal descent in defining the class of persons eligible for inclusion in the
membership of the Native Hawaiian entity. Proponents of the legislation, however,
note that the use of lineage and blood quantum is customary in federal Indian law.
Not only do many tribes require a degree of Indian blood for membership,85 but the
federal government has also used this as a determinant of whether or not a person is
to be considered Indian for a specified purpose. As early as 1846, the Supreme
Court, having to determine what “Indian” meant in a federal criminal statute,
concluded that it required both identification by a tribe and blood quantum.86 There
are myriad federal statutes over the course of United States history drawing
distinctions based on blood quantum or lineal descent. For example, the Indian
Reorganization Act, on which the regulations at issue in Morton v. Mancari were
based, defines “Indian” to include:
84 Brief of United States as Amicus Curiae, at 9-10, Rice v. Cayetano. The Court in Rice did
not decide the question of whether Congress could designate a Native Hawaiian entity
without offending the Equal Protection Clause. See text accompanying n. 53, supra.
85 For examples of such tribal membership criteria, see Rice v. Cayetano, 528 U.S. 495, 526-
527 (Breyer, J. concurring in the result). Justice Breyer cites various tribal constitutions that
limit membership to descendants on tribal rolls of a certain date, some with blood-quantum
stipulations.
86 United States v. Rogers, 45 U.S. How. 567 (1846). The case involved a person of no
Indian ancestry who had been adopted into the tribe.
“all persons of Indian descent who are members of any recognized Indian tribe now
under Federal jurisdiction, and all persons who are descendants of such members
who were, on June 1, 1934, residing within the present boundaries of any Indian
reservation, and ... all other persons of one-half or more Indian blood.”87
The practice of using blood quantum can be found in some early treaties and
statutes such as those which differentiated among tribal members according to blood
quantum, with Indians of “mixed blood” gaining access to the management of their
affairs earlier than those with a greater degree of Indian blood.88 The Alaska Native
Claims Settlement Act of 1971,89 which grants Alaska Natives rights in land and
funds transferred to Alaska Native village and regional corporations, defines “Alaska
Native” as “a person of one-fourth degree or more Alaska Indian” or one “who is
regarded as an Alaska Native by the Native village or Native group of which he
claims to be a member and whose father or mother is ... regarded as Native by any
village or group.”90
Is This Legislation Within the Power of Congress to Remedy Past
Discrimination? Even if found to be based on a racial classification, a
congressionally enacted mechanism to confer tribal status or attributes upon Native
Hawaiians may be constitutionally justified if adequately supported by evidence of
a “compelling” remedial purpose. The courts’ affirmative action jurisprudence may
point the way. In Adarand Constructors, Inc., v. Pena,91 the Court applied “strict
scrutiny” to a federal transportation program of financial incentives for prime
contractors who subcontracted to firms owned by “socially and economically
disadvantaged individuals,” defined so as to prefer members of designated racial
minorities. Although the Court refrained from deciding the constitutional merits of
the particular program before it, it determined that all “racial classifications” by
government at any level must be justified by a “compelling governmental interest”
and “narrowly tailored” to that end. But the majority opinion, by Justice O’Connor,
sought to “dispel the notion” that “strict scrutiny is ‘strict in theory, but fatal in fact,’”
by acknowledging a role for Congress as architect of remedies for past discrimination
identified by the legislative process.92 “The unhappy persistence of both the practices
and lingering effects of racial discrimination against minorities in this country is an
unfortunate reality, and the government is not disqualified from acting in response
87 25 U.S.C. § 479. “Indian” is defined to include Eskimos and other aboriginal peoples of
Alaska.
88 A Treaty of September 30, 1854, Art. 2, (7th), 10 Stat. 1109, a Treaty with the Chippewa
of Lake Superior and of the Mississippi, included a clause which allotted 80 acres of land
to each mixed-blood head of family, which could be issued in fee patent. A subsequent
treaty includes a provision for allotting up to 160 acres to each male or female Chippewa,
not to be alienated except with the approval of the SOI. Treaty of March 19, 1867, with the
Chippewa of the Mississippi, 16 Stat. 719.
89 P.L. 92-203, 85 Stat. 588, codified as amended at 43 U.S.C. §§ 1601-1628.
90 43 U.S.C. § 1602(b).
91 515 U.S. 200 (1995).
92 515 U.S. 200, 231.237, , 151, quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980)
(Marshall, J. concurring in the judgment).
to it.”93 Indeed, a majority of Justices — all but Justices Scalia and Thomas —
appeared to accept some forms of racial preferences by Congress in at least some
circumstances.
Absent additional High Court guidance, lower federal courts have been left to
determine the scope of remedial power remaining in congressional hands, and of the
conditions required for its exercise. On remand from Adarand, the Tenth Circuit
found that the range of admissible evidence to support racial line-drawing by
Congress was both direct and circumstantial, including post-enactment evidence and
legislative history, demonstrating public and private discrimination in the
construction industry.94 Congressional hearings over nearly a two-decade period
depicted the social and economic obstacles faced by small and disadvantaged
entrepreneurs, mainly minorities, in business formation and in competition for
government contracts. Moreover, “disparity studies” conducted in most of the
nation’s major cities compared minority-owned business utilization with availability
and “raise[d] an inference that the various discriminatory factors the government
cites have created that disparity.”95 This record satisfied the Tenth Circuit panel that
Congress had a “strong basis in evidence” for concluding that passive federal
complicity with private discrimination in the construction industry contributed to
discriminatory barriers in federal contracting, a situation the government had a
“compelling” interest in remedying.
Similarly, the Eighth Circuit’s consolidated ruling in Sherbrooke Turf, Inc. v.
Minnesota Dep’t of Transportation and Gross Seed Co. v. Nebraska Department of
Roads96 concluded from the record of committee hearings and other documentary
evidence before Congress that the government had a compelling interest for the
programs in question. Petitioners argued that Congress and transportation officials
had no “hard evidence” of intentional discrimination in the contracting industry.97
The Eighth Circuit nonetheless agreed with the Tenth Circuit panel that “Congress
has spent decades compiling evidence of race discrimination in federal highway
contracting,” and petitioners failed to meet the burden of showing that no remedial
action was necessary.98
Both the Apology Resolution and S. 147/H.R. 309 are based on congressional
findings of wrongs done by the United States and its agents to the Native Hawaiian
populace. The Apology Resolution, inter alia, attributes the overthrow of the
93 515 U.S. 200, 231.
94 Adarand Constructors, Inc. v. Slater, 228 F. 3d 1147(10th Cir. 2000).
95 Id., at 1173.
96 345 F. 3d 964 (8th Cir. 2003), denied, 541 U.S. 1041 (2004).
97 They relied on a Justice Department summary of over 50 documents and 30 congressional
hearings on minority-owned businesses prepared in response to the Adarand decision. See
Appendix — The Compelling Interest for Affirmative Action in Federal Procurement: A
Preliminary Survey, 60 Fed. Reg. 26050 (May 25, 1996). The Eighth Circuit did not find
this documentation compelling. 345 F. 3d 964, at 969-970.
98 345 F. 3d 964, 970.
“indigenous and lawful Government of Hawaii,” to a conspiracy that included the
U.S. minister, John L. Stevens, and “a small group of non-Hawaiian residents of the
Kingdom of Hawaii, including citizens of the United States,” with the support of
“armed naval forces of the United States.”99 It further acknowledges that “the
indigenous Hawaiian people never directly relinquished their claims to their inherent
sovereignty as a people or over their national lands to the United States, either
through their monarchy or through a plebiscite or referendum,” and that “the long-
range economic and social changes in Hawaii over the nineteenth and early twentieth
centuries have been devastating to the population and to the health and well-being
of the Hawaiian people.”100
It could be argued that the extensive congressional findings in the Apology
Resolution, in S. 147/H.R. 309, in the legislative record accompanying the over 160
federal laws that address the Native Hawaiian situation, and in the extensive findings
with respect to the historical record and present condition of Native Hawaiians in a
report101 issued in 2000 by DOI and the Department of Justice may satisfy the
requirement that race-based legislation be remedial in nature and substantiated by an
extensive record showing its necessity. On the other hand, one commentator
concludes that federal programs for Native Hawaiians would be subject to strict
scrutiny and many of them would not survive if a political relationship is not
es tablished.102
Does Congress have authority under the U.S. Constitution’s Indian
Clauses to Enact Legislation That Recognizes a Native Hawaiian
Governmental Entity? The Supreme Court has upheld a broad exercise of federal
power in Indian affairs and referred to the power of Congress in this area as103
“plenary.” Tribal organizations are not the only form of governmental entities that
Congress has recognized under the Indian power. Other organizational alignments104
are also referenced in various federal statutes. The Indian Claims Commission Act,
for example, applied to “any Indian tribe, band, or other identifiable group of
American Indians [emphasis added] residing within the territorial limits of the United
States or Alaska.” The law permitting Alaska Natives to organize and adopt
constitutions and governmental authority applies to “groups of Indians in Alaska not
recognized prior to May 1, 1936, as bands or tribes, but having a common bond of
occupation, or association, or residence within a well-defined neighborhood,
community or rural district.”105 The Supreme Court has deferred to Congress in this
matter, according wide latitude to statutory designation of Indian tribal entities. In
United States v. Sandoval, 231 U.S. 28 (1913), and United States v. Candelaria, 271
99 107 Stat. 1510.
100 Id.
101 From Mauka to Makai.
102 Stuart Minor Benjamin, Equal Protection and the Special Relationship: the Case of
Native Hawaiians, 106 Yale. L. J. 537, 559 (1996).
103 Delaware Tribal Business Comm v. Weeks, 430 U.S. 73, 83-84 (1977).
104 60 Stat. 1049, 1050 (1946).
105 25 U.S.C. § 473a.
U.S. 432 (1926), the Court approved application of specific federal Indian laws to the
Pueblo Indians of New Mexico, overturning an earlier decision that had found them
not to be Indians. Sandoval upheld extension of the Indian liquor laws to the Pueblo
lands and the Congressional power to include the Pueblos within federally protected
Indians; Candelaria overturned United States v. Joseph, 94 U.S. 614 (1877), which
had found Pueblos not to be Indians, and ruled that the Pueblos fell within the
definition of an “Indian tribe” within the meaning of the laws regarding the alienation
of Indian property. The rationale for this ruling includes, among other things, a
holding that the Pueblos were “a body of Indians of the same or a similar race,
united in a community under one leadership or government, and inhabiting a
particular though sometimes ill-defined territory.” [Emphasis added.] That language
comes from Montoya v. United States, 180 U.S. 261, 266 (1901), and has
subsequently been employed as a core element in the concept of what is an Indian
tribe.106
The Supreme Court has not yet been faced with the direct question as to whether
Congress may equate Native Hawaiians with Indian tribes. In Rice v. Cayetano,
within the context of a state election, the Court ruled that a classification based on
tracing ancestry to the pre-1778 inhabitants of the Hawaiian Islands is invidious
racial discrimination. Whether Congress may do what Hawaii could not, however,
was not settled by Rice v. Cayetano, as the Court noted.107 In that case, moreover, the
Court seemed to tie Congressional power over Indians to retained tribal sovereignty,
rather than to their position as aboriginal inhabitants of territory that became the
United States.108 Restoring powers of self-government to a Native Hawaiian entity,
moreover, may be considered analogous to restoration of powers to an Indian tribe.
Congressional authority to restore power to an Indian tribe was sustained by the
Supreme Court recently in a case involving a federal statute that restored to Indian
tribes certain criminal law jurisdiction over non-member Indians. In that case,
United States v. Lara,109 the Court decided that Congress has the power “to relax
restrictions that the political branches have, over time, placed on the exercise of a
tribe’s inherent legal authority.”110
Interpretation of Hawaii’s History. The legislation has prompted
challenges to the interpretation of its findings and those of the Apology Resolution
that the United States, through its agents, collaborated in an illegal ouster of the
106 See, e.g., Mashpee Tribe v. New Seabury Corp., 592 F. 2d 575 (1st Cir. 1979), cert.
denied, 444 U.S. 866 (1979).
107 528 U.S. 495, 518-519. See supra, n. 51.
108 “The decisions of this Court, interpreting the effect of treaties and congressional
enactments on the subject, have held that various tribes retained some elements of quasi-
sovereign authority, even after cession of their lands to the United States.” 528 U.S. 495,
109 541 U.S. 193 (2004). See CRS Report RL32361, Tribal Sovereignty Over Nonmember
Indians: United States v. Billy Jo Lara, by Nathan Brooks.
110 541 U.S. 193, 196.
Hawaiian monarchy and wrested sovereignty from the Native Hawaiian people.111
A succinct exposition of the view of Hawaii’s history that appears to be in accord
with that taken in the Apology Resolution is as follows:
When Captain James Cook sailed into Hawaii, anywhere from 200,000 to
1 million people lived in a highly organized social system based on communal
land tenure — all land was held in trust by the king and the concept of fee simple
did not exist. While the Hawaiians were governed by four separate chiefdoms,
they had a uniform culture, language, and religion. In 1810, King Kamehameha
unified the islands under the Kingdom of Hawaii with U.S. and European
assistance. Western traders saw riches of fur, sandalwood, and whales, and King
Kamehameha allowed wide access to these resources in exchange for western
support of his monarchy. The United States, as well as most of the world,
recognized the Kingdom of Hawaii as an independent sovereign by 1826.
From 1810 to 1893, Hawaii gravitated further into the hands of the West.
Hawaiians introduced fee simple land ownership to satisfy western interests.
The “Great Mahele,” or “Great Division,” ended the islands’ communal land
arrangement by apportioning one-third of the land to the crown, one-third to the
government, and one-third to [N]ative Hawaiians. In actuality, [N]ative
Hawaiians, although promised ownership in land they had cultivated, received
less than one percent of the allotted land. And those who did receive land did not
understand the nature of their title — in fact, many [N]ative Hawaiians sold their
land without comprehending the legal ramifications.
Further, the population of the islands changed dramatically. The
burgeoning western-owned sugar and pineapple plantations hungered for
111 Subsection 2(13) of S. 147 reads, “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 to the United States their claims to their inherent sovereignty as
a people over their national lands, either through the Kingdom of Hawaii or through a
plebiscite or referendum.”
Included in the Apology Resolution is a statement issued, in 1893, by the Queen of the
Hawaiian Kingdom that she was abdicating under protest and looked to the United States
to reinstate her. Also included are excerpts from a message to Congress from President
Cleveland characterizing U. S. actions as “‘an act of war, committed with the participation
of a diplomatic representative of the United States and without authority of Congress,’” and
calling upon Congress to restore the Hawaiian monarchy to right a “‘substantial wrong ...
done which a due regard for our national character as well as the rights of the injured people
requires we should endeavor to repair.’” 107 Stat. 1510, 1511
Hawaiian history as related in the Apology Resolution and the Senate Report
accompanying it (S.Rept. 102-456, 21-35) has been contested recently by former Senators
Slade Gorton and Hank Brown, in an article in the August 16, 2005, Wall Street Journal, A-
16. They contend that “the Apology Resolution distorted historical truths,” that the United
States was not involved in the overthrow of Queen Liliuokalani in 1893, that there was no
resistance to the insurgents, and that “the queen authored her own ouster by planning a coup
against the Hawaiian Constitution to recapture monarchical powers that had been lost in a
strong democratic current.” In their view, under the Kingdom, sovereignty was shared by
native and non-native citizens. They claim that there was a 2-1 margin in the Native
Hawaiian vote for statehood in 1959, and that this refutes the statement in the Apology
Resolution that Native Hawaiians never relinquished sovereignty to the United States.
laborers, creating an infusion of labor from Asia, Germany, and Spain. By the
mid-nineteenth century, native Hawaiians were poor, plagued by new diseases
brought by foreigners, and landless. By 1900, [N]ative Hawaiians constituted
only half of the islands’ population....
The year 1893 marked the end of the Hawaiian Kingdom. The monarch of
Hawaii, Queen Lili’uokalani, sought to re-establish [N]ative control. She had
secretly written a new constitution for Hawaii to replace an earlier one, written
by western business interests in 1887 and forced upon a previous king. The
constitution that the Queen sought to replace guaranteed white landowners
substantial control in Hawaiian government. Lili’uokalani’s constitution, in
contrast, would have eliminated western influence by granting voting rights
exclusively to [N]ative Hawaiians. Further, her constitution would eliminate the
many cabinet positions filled by Americans. Those with commercial interests in
Hawaii panicked, and within days, the United States, through its military troops,
retaliated with force.
Queen Lili’uokalani, with a military force assembled near her palace,
relinquished power to the United States. Immediately, a U.S.- controlled
provisional government sprang to life and sought annexation. President
Cleveland, however, demanded the restoration of the monarchy and declared the
overthrow of Queen Lili’uokalani an “act of war.” By 1898, however, President
McKinley answered the call of Manifest Destiny and annexed Hawaii.
Suddenly, 1.8 million acres became part of the United States without the112
payment of any compensation.
Other commentators have challenged this interpretation, and it has been argued
that “the Monarchy was overthrown without the collusion of the United States or its
agents; the Native Hawaiian people enjoyed no more inherent sovereignly under the
kingdom than did non-Native Hawaiians; in any event, sovereignty at the time of the
overthrow rested with Queen Liliuokalani, not the people; the public lands of Hawaii
belonged no more to Native Hawaiians than to non-Native Hawaiians; and, there was
never a legal or moral obligation of the United States or the Provisional Government
after the overthrow to obtain the consent of Native Hawaiians to receive control over
the crown lands.”113
The interaction of Hawaii’s history with that of the United States is a matter of
complex and multiple interacting forces and individuals about which political
scientists, historians, and contemporaneous observers have disagreed. Indeed, in
setting forth the historical background of HHCA, the Supreme Court opinion in Rice
recognized this fact and chose to outline the history as understood by the legislators
who enacted the underlying laws, rather than to attempt to set forth its own version of
the events. It stated:
112 John Heffner, Note, “Between Assimilation and Revolt: A Third Option for Hawaii as
a Model for Minorities World-Wide,” 37 Tex. Int’l L. J. 591, 594-596 (2002) (footnotes
omitted).
113 Bruce Fein’s Testimony, at 9. Fein also asserts that Native Hawaiians are not a separate
community; they are spread all over the United States; and, that there never was a
government of Native Hawaiians both because the Kingdom had only one sovereign, not a
sovereign people, and because its subjects were Native and non-Native alike.
When Congress and the State of Hawaii enacted the laws we are about to discuss
and review, they made their own assessments of the events which intertwine
Hawaii’s history with the history of America itself. We will begin with a very
brief account of that historical background. Historians and other scholars who
write of Hawaii will have a different purpose and more latitude than do we. They
may draw judgments either more laudatory or more harsh than the ones to which
we refer. Our more limited role, in the posture of this particular case, is to recount
events as understood by the lawmakers, thus ensuring that we accord proper
appreciation to their purposes in adopting the policies and laws at issue. The
litigants seem to agree that two works in particular are appropriate for our114
consideration, and we rely in part on those sources.
Jurisdictional Issues. Indian tribes have inherent powers of self
government115 and limited civil and criminal jurisdiction over their members and their
land by virtue of inherent tribal sovereignty and federal statute.116 Since they are
neither federal nor state governmental entities, in their relationship to their members,
they are not subject to the restraints placed on government by the federal
Constitution.117 For this reason, Congress enacted the Indian Civil Rights Act, 25
U.S.C. § 1301 et seq., applying many of the safeguards of the federal Bill of Rights
to Indian tribal governments.
S. 147/H.R. 309 does not establish any civil or criminal jurisdiction or any
specific limits on the jurisdiction of the Native Hawaiian governmental entity that may
emerge from the process established in the legislation. The legislation does not
specify that the governmental entity shall be subject to the Indian Civil Rights Act, for
example. It does, however, require as a condition of DOI certification of its
governing documents, that they provide protection for the civil rights of those under
the jurisdiction of the Native Hawaiian governing entity. The legislation addresses the
issue of gambling, however, by precluding gaming under the Indian Gaming
Regulatory Act.118 Other jurisdictional matters appear to be unsettled and left to be
determined pursuant to section 8 of the legislation. That section authorizes
negotiations by the United States, the Native Hawaiian governing entity, and the State
of Hawaii, with respect to “the transfer of lands, natural resources and other assets to
the Native Hawaiian governing entity, the protection of existing rights related to such
lands or resources, and the exercise of governmental authority over such lands, natural
resources and other assets, including the exercise of civil and criminal jurisdiction by
the Native Hawaiian governing entity, the delegation of governmental power and
114 528 U.S. 495, 499-500.
115 See “The Powers of Indian Tribes,” a memorandum, dated October 25, 1934, from the
Solicitor of the Interior and approved by the Assistant Secretary, 1 Opinions of the Solicitor
of the Department of the Interior Relating to Indian Affairs: 1917-1974, 445.
116 See CRS Report RL32361, Tribal Sovereignty Over Nonmember Indians: United States
v. Billy Jo Lara, by Nathan Brooks; and Felix S. Cohen’s Handbook of Federal Indian Law,
117 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Talton v. Mayes, 163 U.S. 376
(1896).
118 Of course, if subsequent negotiations result in agreement with respect to gaming, it would
be up to Congress as to whether or not to approve such gaming.
authorities to the Native Hawaiian governing entity, and the scope of residual
responsibilities of the United States and the State of Hawaii.”119
Potential Cost. The bill authorizes several million dollars in appropriated
funds to be expended to carry out the federal responsibilities in recognizing a Native
Hawaiian entity.120 Critics state that the legislation raises the possibility of costly
claims litigation against the United States and eventual incorporation of Native
Hawaiians into BIA and Indian Health Services programs without any increase in121
funding, thereby diluting the benefits to existing Indian organizations. Proponents,
however, respond by pointing to the fact that the bill, as reported, precludes Native
Hawaiian inclusion in Indian programs and contains nothing explicit that authorizes
claims against the United States by Native Hawaiians. A provision in the bill merely
sets a limitation period of 20 years for claims, meaning that only a claim otherwise
cognizable by the courts could be brought.
Legislative Action
Senate Report and Cloture Motion. On May 16, 2005, S. 147 was reported
favorably by the Senate Committee on Indian Affairs122 with an amendment in the
nature of a substitute. Debate began in the Senate, with introductory remarks heard
on June 21 and July 14, 2005. A cloture motion was filed and the legislation
withdrawn from the Senate Calendar. A substitute amendment is expected when
debate resumes.123
Discussions on Language. For much of July and August, there were
negotiations involving the Chairman and Ranking Member of the Senate Committee
on Indian Affairs, Senators Akaka and Inouye, Hawaii’s Attorney General, the White
House, the Department of Justice, the Office of Management and Budget, and the
Department of Defense “on specific language to resolve all of the Administration’s
policy concerns.”124 According to a press release issued by Senator Akaka, the new
language will require that any claims against the United States be resolved in the
negotiations process set forth in the bill and will make “it clear that civil and criminal
jurisdiction currently held by the State and Federal governments will remain with the
State and Federal governments until otherwise negotiated with the Native Hawaiian
119 S.Rept. 109-68, 20-21.
120 The Congressional Budget Office estimate is “nearly $1 million annually in fiscal years
2006-2008 and less than $500,000 in each subsequent year, assuming availability of
appropriated funds.” S.Rept. 109-68, pp. 23-24.
121 Republican Policy Committee, “Why Congress Must Reject Race-Based Government for
Native Hawaiians,” at 13. [http://rpc.senate.gov/_files/Jun2205NatHawSD.pdf] (last visited
August 23, 2005).
122 S.Rept. 109-68.
123 Discussed infra, at 29.
124 Letter from Linda Lingle, Governor, State of Hawaii, to the United States Senate 1
(August 23, 2005). The letter identified the policy concerns as including potential claims,
impact on military readiness, criminal jurisdiction, and gambling. Id., at 2.
governing entity,” and that the Department of Defense will be exempted from the
consultation requirements although it will continue to consult pursuant to other laws
and to litigation agreements.125
Expected Substitute Amendment. When S. 147 comes to the Senate floor,
it is expected that a substitute amendment will be offered in lieu of the reported
version of the bill, and that it will incorporate provisions that have been agreed upon
in the July and August discussions. This is expected to include provisions that will:
(1) limit federal recognition to a single Native Hawaiian governing entity; (2) permit
claims against the United States and Hawaii to be included in the negotiation process;
(3) specify that civil and criminal jurisdiction may be negotiated but will remain as is
until implementing legislation is enacted by Congress and Hawaii; (4) prohibit gaming
by the Native Hawaiian governmental entity, under IGRA or pursuant to inherent
authority, in Hawaii or elsewhere within the United States or its territories; (5)
preclude BIA from taking land into trust for the benefit of the Native Hawaiian
governing entity pursuant to the administrative process established under 25 C.F.R.,
Part 151; (6) preclude the applicability of the Indian Non-Intercourse Act, 25 U.S.C.
§ 177,126 to lands in the State of Hawaii transferred either before or after the enactment
of this legislation; (7) deny eligibility for Indian programs and services to the Native
Hawaiian governing entity and its members; and (8) specify that the Native Hawaiian
governmental entity and its members are eligible for Native Hawaiian programs and
services to the extent and manner provided by other applicable law. The substitute
amendment is also expected to include disclaimers stating that the legislation does
not create any cause of action against the United States or any person; alter existing
law regarding the obligations of the United States or the State of Hawaii with respect
to Native Hawaiians or any Native Hawaiian entity; or create obligations not already
existing under federal law. Also to be included is a section on sovereign immunity
specifying retention of federal and State sovereign immunity with respect to various
potential actions and rendering certain types of claims against the United States non-
justiciable.127
125 [http://akaka.senate.gov/~akaka/releases/05/09/2005916736.html].
126 This law prohibits transfers of Indian land without the consent of the United States; it has
been used by Indian tribes to contest “ancient land claims.”
127 Amendment to provide a complete substitute to S. 147, 109th Cong., 1st sess. Available
at [http://akaka.senate.gov/assets/s%20147%20substitute%209-2.pdf]. [last visited
September 21, 2005). Another provision would permit non-Native Hawaiians to be
appointed to the Commission that must certify that members on the roll meet the established
qualifications. There is also a modification of the language in § 2 (22)(D), which in the
Substitute Amendment finds that the “special relationship of American Indians, Alaska
Natives, and Native Hawaiians to the United States arises out of their status as aboriginal,
indigenous, native people of the United States,” rather than what appears in the reported
version of S. 147: “special trust relationship ....”
APPENDIX I: Legislation
Native Hawaiian recognition bills have been considered in the 106th-108th
Congresses, and at least one of the bills has been reported in each Congress (see Table
147 and H.R. 309, but differed in various other provisions, including the
determination of land transfers to, and the jurisdictional powers of, a Native Hawaiian
political entity. The nature of the federal government’s relationship to Nativeth
Hawaiians was an issue long before the 106 Congress, however, in both the
Department of the Interior129 and the halls of Congress.
Congress came closest to enacting a Native Hawaiian recognition bill in the 106th
Congress, when the House passed H.R. 4904. While the Senate did not pass H.R.
4904, the bill would have been enacted through a provision in the Consolidated
Appropriations Act, 2001 (H.R. 4577, P.L. 106-554), until a Senate concurrent
resolution removed the provision by correcting the enrollment of H.R. 4577
(S.Con.Res. 162).
128 Appendix I prepared by Roger Walke, Specialist in American National Government,
Domestic Social Policy Division, CRS.
129 For instance, in 1993, the outgoing Bush Administration’s Interior Solicitor’s opinion on
U.S. responsibility for Native Hawaiians, which saw very little federal responsibility, was
withdrawn by the new Clinton administration’s Interior Solicitor (Statement of Solicitor
John D. Leshy, Nov. 15, 1993, M-36978 (Supp.)).
Table 1. Native Hawaiian Recognition Bills in Congress
CongressBill numberLatest (or Final) Congressional actions
109th S. 147Ordered reported by Senate Indian Affairs Committee
(S.Rept. 109-68), May 16, 2005.
Motion to proceed to consideration of measure
withdrawn in Senate, July 29, 2005.
H.R. 309Referred to House Resources Committee, January 25,
H.R. 665Referred to House Resources Committee, February 11,
H.R. 4282Reported by House Resources Committee (H.Rept.
107th S. 81Referred to Senate Indian Affairs Committee, January
S. 746Reported by Senate Indian Affairs Committee (S.Rept.
S. 1783Referred to Senate Indian Affairs Committee, December
H.R. 617Reported by the Committee on Resources (H.Rept.
H.R. 4904Reported by House Resources Committee (H.Rept.
Passed by the House by voice vote, September 26, 2000.
H.R. 4577H.R. 4577 (which incorporated by reference H.R. 5666,
(P.L. 106-§123 of which enacted H.R. 4904 as passed by the
S.Con.Res. 162 (which corrected the enrollment of H.R.
4577, as already passed, by incorporating H.R. 5666
except §123) passed by Senate and House, December 15,
APPENDIX II: Federal Native Hawaiian Programs
Congress has enacted a number of programs for Native Hawaiians, in addition130
to the Hawaiian Home Lands program. One concern among proponents of Native
Hawaiian recognition is that many or all of these federal programs for Native131
Hawaiians may be endangered if a Native Hawaiian political entity is not created.
Federal Native Hawaiian programs either are solely for Native Hawaiian communities
or organizations or explicitly include Native Hawaiian communities or organizations
among the eligible applicants. Some of these programs benefit Indians as well. The
programs provide a not insignificant amount of federal dollars for Native Hawaiians.
A 2003 report of the Council for Native Hawaiian Advancement estimated that in
FY2002 over $70 million flowed into Hawaii because of such Native Hawaiian
programs.132 Among the major federal Native Hawaiian programs listed in the133
Catalog of Federal Domestic Assistance (CFDA) are the following.
!Native Hawaiian Education Act (P.L. 107-110, Title VII, Part B);
F2004 obligations were $33.3 million, according to the CFDA.
!Higher Education Act, Title III, Institutional Aid for Alaska Native
and Native Hawaiian serving institutions.
!Native Hawaiian Health Care Improvement Act (P.L. 102-396);
F2004 obligations were $10.5 million, according to the CFDA.
!Native Hawaiian Housing Block Grants (P.L. 106-569, Hawaiian
Homelands Homeownership Act, §513); F2004 obligations were $9.6
million, according to the CFDA.
!Loan Guarantees for Native Hawaiian Housing (P.L. 106-569,
Hawaiian Homelands Homeownership Act, §514); F2004 loan
guarantees were $39.7 million, according to the CFDA.
!Native American Programs Act of 1974 (P.L. 93-644, as amended);
shared program with Indians and Native American Pacific Islanders;
total program FY2004 obligations were $35 million, according to the
CFDA.
!Native American Employment and Training (P.L. 105-220, §166);
shared program with Indians; total program FY2004 obligations were
$55 million, according to the CFDA.
130 Appendix II prepared by Roger Walke, Specialist in American National Government,
Domestic Social Policy Division, CRS.
131 “Robert Klein, former Hawaii state Supreme Court associate justice, who represents the
Office of Hawaiian Affairs in lobbying for the Akaka Bill, says the measure will prevent
hundreds of federal programs that benefit native Hawaiians from being struck down as being
unconstitutional.” Richard Borreca, “Proposed Akaka Bill Changes Get Federal OK, Lingle
Says,” Honolulu Star-Bulletin, Aug. 25, 2005
[http://starbulletin.com/2005/08/24/news/story5.html], accessed Aug. 25, 2005.
132 Council for Native Hawaiian Advancement, Economic Impact of Native Hawaiian
Federal Recognition, CNHA Policy Brief (Honolulu: The Council, May 2003), pp. 2-3,
[http://www.hawaiiancouncil.org/docs/EconomicImpact111604.pdf] accessed Sept. 2, 2005.
133 CFDA is available online at [http://12.46.245.173/cfda/cfda.html].