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Attorney Paul M. Sullivan’s Point-by-Point Analysis of S.81, an older version of the Native Hawaiian Recognition bill, also known as the Akaka bill



(c) Copyright 2001 Paul M. Sullivan. All rights reserved
E-mail: sullivanp003@hawaii.rr.com
P.O. Box 30014
Honolulu, HI 96820


 

Section-by-section comments on S. 81 

"A bill to express the policy of the United States regarding the United States relationship with Native Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the United States of the Native Hawaiian government, and for other purposes. " 

Prepared for presentation

to the 

Committee on Indian Affairs

U. S. Senate 

by 

Paul M. Sullivan 

SECTION 1. FINDINGS.

Congress makes the following findings: 

(1) The Constitution vests Congress with the authority to address the conditions of the indigenous, native people of the United States. 

Comment: The U.S. Supreme Court's decision in Morton v. Mancari, 417 U.S. 535 (1974), and the Ninth Circuit's decision in Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) suggest otherwise.  

In Morton, the U. S. Supreme Court considered an employment preference for Indians in the Bureau of Indian Affairs. In upholding the preference against a challenge that it constituted racial discrimination, the court noted that preferences for Indians are "political" in nature and would be upheld if they were "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." The court made clear, however, that Congress' "unique obligation" is not to a group who simply claim descent from American Indians living in American before Western contact, or to any other group defined solely by race or ancestry. It pointed out: 

The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. 

The court subsequently noted: 

The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as 'Indians'. In this sense, the preference is political rather than racial in nature 

The Ninth Circuit in Williams v. Babbitt examined Morton in the context of an Interior Department decision interpreting the Reindeer Act of 1937 to limit the owning, importing or selling of reindeer in Alaska to Alaska Natives. Williams challenged the exclusion of non-natives from these activities as racial discrimination subject to strict scrutiny. The Government asserted that Morton should govern and its more lenient rational basis standard should apply. The Ninth Circuit, noting that "reindeer are neither native to Alaska nor part of the Alaskan native way of life", that the reindeer business is not "uniquely native" and that the statute in question "in no way relates to native land, tribal or communal status, or culture", applied strict scrutiny and concluded that the Interior Department position failed that test. It stated: 

Legislation that relates to Indian land, tribal status, self government or culture passes Mancari's rational relation test because "such regulation is rooted in the unique status of Indians as 'a separate people' with their own political institutions." United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1895, 1899, 51 L.Ed.2d 701 (1977. As "a separate people," Indians have a right to expect some special protection for their land, political institutions (whether tribes or native villages) and culture. . . . While Mancari is not necessarily limited to statutes that give special treatment to Indians on Indian land, we do read it as shielding only those statutes that affect uniquely Indian interests. 

Williams v. Babbitt, 115 F.3d 657, 664-65. 

Morton and Williams v. Babbitt indicate that tribal status and separateness as a people must underlie the establishment of special Indian preferences. As the court in Williams v. Babbitt stated, Federal regulation of Indian affairs is "rooted in" those circumstances. This is consistent with both of the principal sources of Federal constitutional authority concerning Indians, the power under Art. I, section 8, clause 3 to regulate commerce with the "Indian tribes" and the presidential treaty power granted in Art. II, section 2, clause 2. Both of these are consistent with the notion that the Federal government is authorized to deal with other existing governmental entities. Both presume that the "tribes" or foreign governments to be dealt with already exist. Neither could logically or practically operate in the absence of a pre-existing governmental entity, and neither suggests that the Federal Government could properly create a governmental entity with which to deal. In other words, if in fact an American Indian governmental entity exists, then Congress has constitutional authority to deal with it, and to make special provision for its members.  

The bill, however, would turn the logic backwards by declaring that Congress has a "special responsibility" not just for Indian tribes and their members, but for the "aboriginal", "indigenous" and "native" peoples (or more precisely, with modern-day individuals who can claim descent from precontact ancestors who might fairly have claimed aboriginal or indigenous status), and that this "special responsibility" permits Congress to authorize some or all of these individuals to create an entity to which Congress will then extend governmental authority. Neither the Constitution nor the logic of Congress' authority over Indian tribal relations provides support for such a broad and unqualified contention, particularly in the case of Native Hawaiians.  

There is no constitutional or other authority for Congress' creation of a "tribe" or similar entity as proposed in this bill. The broad power of the Federal executive and Congress notwithstanding, no "tribe" eligible to claim the "special relationship" with the U.S. can be created where none exists in reality. In U.S. v. Sandoval, 231 U.S. 28 (1913), the U.S. Supreme Court considered whether the Pueblo Indians could be brought by Congress within the "special relationship". It examined a variety of factors indicating that Congress could do so, including the facts that the Pueblos are "Indians in race, custom, and domestic government", that they lived "in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and fetichism [sic], and [are] chiefly governed according to the crude customs inherited from their ancestors." It balanced these considerations against arguments that the Pueblos were citizens of the United States (unlike most Indians at the time) and that their lands were held by them in fee simple (rather than being held in trust by the Federal Government) and concluded that it was within the power of Congress to treat the Pueblos as an Indian tribe. The court cautioned, however, that "it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts." Id. at 46.  

There is no Hawaiian "tribe", and one case which considered a claim by a purported Hawaiian tribe indicates that Hawaiians are unlikely be able to establish such a status under BIA policy. Price v. Hawai'i, 764 F.2d 623 (9th Cir. 1985). Unlike the Pueblo communities, there is no unifying group character to "Native Hawaiians" (as defined in this bill) other than race, no existing government, and as the late George Kanahele pointed out in the work quoted below, no distinct "Native Hawaiian" community (geographical or social) maintaining an existence separate from other elements of Hawai'i's population.  

 

(2) Native Hawaiians, the native people of the Hawaiian archipelago which is now part of the United States, are indigenous, native people of the United States. 

Comment: Native Hawaiians, as defined in this bill, cannot properly be characterized either as "a people" or as "indigenous".  

a. "People." The bill's reference to "Native Hawaiians" as a "people" appears to use the term "people" in the sense defined in Webster's Third New International Dictionary (Unabridged) (1993), p. 1673 as "a body of persons that are united by a common culture, tradition, or sense of kinship though not necessarily by consanguinity or by racial or political ties and that typically have a common language, institutions, and beliefs." Native Hawaiians, as defined in the bill, cannot claim such a status. As one prominent Hawaiian scholar has put it: 

These are the modern Hawaiians, a vastly different people from their ancient progenitors. Two centuries of enormous, almost cataclysmic change imposed from within and without have altered their conditions, outlooks, attitudes, and values. Although some traditional practices and beliefs have been retained, even these have been modified. In general, today's Hawaiians have little familiarity with the ancient culture.

Not only are present-day Hawaiians a different people, they are also a very heterogeneous and amorphous group. While their ancestors once may have been unified politically, religiously, socially, and culturally, contemporary Hawaiians are highly differentiated in religion, education, occupation, politics, and even their claims to Hawaiian identity. Few commonalities bind them, although there is a continuous quest to find and develop stronger ties. 

George S. Kanahele, The New Hawaiians, 29 Social Process in Hawai'i 21 (1982).  

Mr. Kanahele's observations explain why the "society" of today's Native Hawaiians, as they are defined in this bill, is the "society" of the State of Hawai'i and the United States. They do not, as a group or as several groups, exist apart from the larger community of the state and nation. Today's citizens of Hawaiian extraction do not share the religion, language, forms of government, economics or any other of the defining social or cultural structures of precontact Hawaiian civilization. See Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai'i, 20 U.Haw. Law Rev. 99 (1998). As Mr. Kanahele correctly observes, they are fully and completely integrated into the larger social and economic life of the state of Hawai'i and the nation. They hold positions of power and respect at all levels of society including business, government and the arts; for example, in the past several years, Hawai'i has had a Native Hawaiian Governor (John Waihee), a Native Hawaiian state supreme court chief justice (William S. Richardson), a Federal District Court judge (Samuel King), a U.S. Senator (Daniel Akaka) and numerous state officials, judges and members of the state legislature.  

Indeed, the use of the terms "they" and "them" with respect to "Native Hawaiians" is of questionable validity, except in the context of the racial definitions of this bill, and of earlier Federal and state legislation using the same racial definition. Except for race, "they" are "us".1  

 

b. "Indigenous." Webster at p. 1151 offers two definitions of "indigenous" which deserve consideration. The first is "a(1): not introduced directly or indirectly according to historical record or scientific analysis into a particular land or region or environment from the outside <Indians were the ~ inhabitants of America><species of plants that are ~ to that country>", and the second is "(2) originating or developing or produced naturally in a particular land or region or environment <an interesting example of ~ architecture><a people with a rich ~ culture>". The term "indigenous" does not appear in the Constitution, although that document does refer to the power of Congress to regulate commerce with the "Indian tribes". But Hawaiians have a strong oral tradition, supported by scholarly research, which places their arrival in the Hawaiian Islands somewhere between the time that Romans were colonizing England and the time that the Crusaders were invading the Holy Land. This hardly supports a claim of being "indigenous". In the context of this bill, the term "indigenous" has more the character of a shorthand term for the one racial group, out of the many in Hawai'i, whose arrival antedated that of Westerners by a few hundred years and for which the bill's supporters seek special political privilege and status. 

 

(3) The United States has a special trust relationship to promote the welfare of the native people of the United States, including Native Hawaiians. 

Comment: This is not precisely the law. In a recent survey of American Indian law, Judge William Canby states: 

From time to time Indian litigants have urged the enforcement of a broader trust responsibility, going beyond the protection of tribal lands and resources and encompassing a duty to preserve tribal autonomy or to contribute to the welfare of the tribes and their members. As yet these attempts have not met with success in the courts, which tend to insist upon a statute or regulation establishing trust responsibilities, or upon the existence of federal supervision over tribal funds or other property. See United States v. Wilson, 881 F.2d 596, 600 (9th Cir. 1989).

William C. Canby, Jr. American Indian Law 44 (1998). 

Indeed, were the descendants of precontact Indians to have such a claim on the rest of the citizens of the United States as is stated in this Finding, unrelated to pre-existing tribal status, we would have precisely the notion of a "creditor race" which Justice Scalia rejected in his concurring opinion in Adarand v. Pena, 515 U.S. 200, 240 (1995).2  

The comprehensive legal analysis in Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996), shows that no such "special relationship" exists at all in the case of Native Hawaiians.  

The principal statute creating benefits for persons of Hawaiian ancestry has been held not to establish a Federal trust relationship. A claim of a trust relationship deriving from the Hawaiian Homes Commission Act, 1920, Act of July 9, 1921, c. 42, 42 Stat. 108, which provides homesteading opportunities to those of 50% Hawaiian "blood" was rejected twice, first in Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 588 F.2d 1216, 1224 (9th Cir. 1978) and again in Han v. Department of Justice, 824 F.Supp. 1480 (D. Hawai'i 1993), aff'd 45 F.3d 333 (9th Cir. 1995), where the U.S. District Court explained in detail why no such trust relationship existed.  

The U.S. Supreme Court has expressed grave reservations about the claim that Native Hawaiians share the "special relationship" which Native Americans tribes have with the United States. In Rice v. Cayetano, 528 U.S. 495, 518, 120 S.Ct. 1044, 1057-58, (2000) the court stated: 

If Hawai'i's [racial voting] restriction were to be sustained under [Morton v. ] Mancari [417 U.S. 535, (1974)] 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 [in the Hawai'i Admission Act] 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 native 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 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 the native Hawaiians as it does the Indian tribes. Compare Van Dyke, The Political Status of the Hawaiian People, 17 Yale L. & Pol'y Rev. 95 (1998) with Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996). We can stay far off that difficult terrain, however. 

A close examination of the issue suggests that if the U.S. Supreme Court were to enter upon that "difficult terrain", it would likely hold that Congress cannot constitutionally treat "Native Hawaiians" like tribal Indians. The Constitution at Article I, Section 8 extends to Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." As noted in the Comment to Finding (1) above, the U. S. Supreme Court has held that preferences for Indians were not violative of constitutional principles of equal protection of the laws, basing that conclusion on the fact that Indian preferences were created by Congress in recognition of the special status of Indian tribes as separate "quasi-sovereign" groups, not groups defined only by race. Morton v. Mancari found the employment preference for Indians in that case to be based on a "political" status rather than on "race" because Congress was legislating with respect to "members of quasi sovereign tribal entities", and that the preference "is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes". It pointed out that "[t]his operates to exclude many individuals who are racially to be classified as 'Indians'". 

Beyond the issue of race, the establishment of an entity within a state of the United States with special privileges based solely on the duration of residence or the accident of birth raises constitutional issues of due process, the privileges and immunities clause (see Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518 (1999); Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309 (1982)), and the anti-nobility clauses (see, e.g., Jol A. Silversmith, The "Missing Thirteenth Amendment": Constitutional Nonsense And Titles Of Nobility, 8 S. Cal. Interdisciplinary L.J. 577, 609 (1999) ("We should remember that the nobility clauses were adopted because the founders were concerned not only about the bestowal of titles but also about an entire social system of superiority and inferiority, of habits of deference and condescension, of social rank, and political, cultural and economic privilege.")). 

 

(4) Under the treaty making power of the United States, Congress exercised its constitutional authority to confirm a treaty between the United States and the government that represented the Hawaiian people, and from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full diplomatic recognition to the Hawaiian government, and entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875, and 1887. 

Comment: It should first be noted that, as explained more fully in the Comment to Finding 13 below, the "Hawaiian people" during the period from 1826 to 1893 included many naturalized and native-born subjects who were not "Native Hawaiians" in the sense of S. 81, and the "Hawaiian government" during this time included many senior officials of foreign birth. This was particularly the case in the kingdom's foreign relations; the kingdom's Foreign Minister from 1845 to 1865, for example, was a Scot, Robert C. Wyllie, and his successors in that post included Charles de Varigny and Charles R. Bishop, both foreign-born.  

In the interest of completeness, it should also be noted that U.S. acknowledgment of Hawai'i's national independence did not end in 1893. It continued after the termination of the monarchy, and the Hawaiian revolutionary government was diplomatically recognized not only by the U.S. but by many other powerful nations as well. Merze Tate, The United States and the Hawaiian Kingdom 191-92 (1965).  

 

(5) Pursuant to the provisions of the Hawaiian Homes Commission Act, 1920 (42 Stat.

108, chapter 42), the United States set aside 203,500 acres of land in the Federal territory that later became the State of Hawaii to address the conditions of Native Hawaiians. 

Comment: The Hawaiian Homes Commission Act established a homesteading program for a small segment of a racially-defined class of Hawai'i's citizens. That is all it did. See H. Rep. 839, 66th Cong., 2nd sess. (1920). Its intended beneficiaries were never "Native Hawaiians" as defined in S. 81 (i.e., those with any degree of Hawaiian ancestry, however attenuated), but exclusively those with 50% or more Hawaiian "blood"--a limitation which still applies, with some exceptions for children of homesteaders who may inherit a homestead lease if the child has at least 25% Hawaiian "blood".  

The HHCA was enacted in the heyday of Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld the racial segregation of railway carriages and the concept that "separate but equal" facilities met the requirements of the Fourteenth Amendment. The thinking of those times is reflected in the testimony of then Secretary of the Interior Franklin K. Lane in support of the bill which became the HHCA. Lane said of the "natives of the islands": 

H.R. Rep. No. 839, 66th Cong., 2nd sess. at 4.  

Never mind that this was said more than three generations after the Hawaiian monarchy put an end of the "communist or feudal" system in the islands. Never mind that full or part Hawaiians at about that time were a major power bloc in the Territorial legislature and constituted much of the civil service (see Lawrence H. Fuchs, Hawaii Pono: A Social History (1960), pp. 161-62). If such condescending stereotyping was ever a lawful basis for Federal legislation, Adarand v. Pena, 515 U.S. 200 (1995) and a simple regard for the truth deprive it of validity today.  

Plessy was effectively overruled by Brown v. Board of Education, 347 U.S. 483 (1954), beginning a line of jurisprudence, culminating in Adarand, which forms the foundation for our present constitutional law on race-based decision-making by the government. It is hardly likely that if the HHCA were proposed today, it would survive the strict scrutiny which Adarand requires. 

 

(6) By setting aside 203,500 acres of land for Native Hawaiian homesteads and farms, the Act assists the Native Hawaiian community in maintaining distinct native settlements throughout the State of Hawaii.

(7) Approximately 6,800 Native Hawaiian lessees and their family members reside on Hawaiian Home Lands and approximately 18,000 Native Hawaiians who are eligible to reside on the Home Lands are on a waiting list to receive assignments of land. 

Comment on subsections (6) and (7): See comment to paragraph (10) below. 

 

(8) In 1959, as part of the compact admitting Hawaii into the United States, Congress established the Ceded Lands Trust for 5 purposes, 1 of which is the betterment of the conditions of Native Hawaiians. Such trust consists of approximately 1,800,000 acres of land, submerged lands, and the revenues derived from such lands, the assets of which have never been completely inventoried or segregated. 

Comment: First and most obviously, the Hawaii Admission Act here referred to (P. L. No. 86-3, 73 Stat. 4, section 5(f) (1959)), like the HHCA, in providing benefits to descendants of precontact Hawaiians, restricts those benefits to persons of 50% Hawaiian "blood", referred to in the Act and in the HHCA as "native Hawaiians". Persons of Hawaiian ancestry but lacking the 50% blood "quantum" received, under the Admission Act, only the benefits available to all other citizens.  

Bettering the conditions of the "native Hawaiians" (50% blood quantum) is, as noted, merely one of five permissible purposes for which ceded lands trust may be used, and there is no mandate to use any part of these proceeds for "native Hawaiians". The statute expressly states that the trust may be used for "one or more" of the five enumerated purposes. It permits the state to determine, within this limitation, how the trust property is used. Price v. State of Hawaii, 764 F.2d 623 (9th Cir. 1985). Indeed, from 1959 to 1978, ceded lands revenues were principally dedicated to education. See Hoohuli v. Ariyoshi, 631 F.Supp. 1153 (1990); Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987). State decisions concerning the use of these public funds, of course, are subject to the constraints of the Fourteenth Amendment and the Adarand decision with respect to any racial test for allocation or receipt of benefits. 

For additional comments on the ceded lands and on Hawaiian claims concerning them, see the Comment following Finding 18 below. 

 

(9) Throughout the years, Native Hawaiians have repeatedly sought access to the Ceded Lands Trust and its resources and revenues in order to establish and maintain native settlements and distinct native communities throughout the State. 

Comment: Activists for Hawaiian causes have indeed made many demands for special control of, or access to, the ceded lands and their proceeds for a wide variety of purposes. Establishing and maintaining "native settlements" and "distinct native communities", however, have not generally been listed among these purposes, and have certainly not been the foremost purposes as this proposed finding implies.  

Under the Admission Act, the ceded lands and their revenues may be used only "for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provision of lands for public use." P. L. No. 86-3, 73 Stat. 4, section 5(f) (1959). The only one of these purposes which might arguably include the purposes listed in Finding 9 is "the betterment of the conditions of native Hawaiians". The Admission Act defines "native Hawaiians" by reference to the Hawaiian Homes Commission Act, which in turn defines "native Hawaiians" as those of 50% or greater Hawaiian "blood".  

The Admission Act makes no specific provision for "Native Hawaiians" as defined in S. 81. Thus any use of the ceded lands or their revenues to benefit "Native Hawaiians" would have to fall within one of the five permissible uses of these resources. Any use of the ceded lands and their resources "to establish and maintain native settlements and distinct native communities throughout the State" for the benefit of "Native Hawaiians" as defined in this bill, not tied to and limited by one of the specified permissible uses, would appear to be a violation of the trust, and illegal.  

 

(10) The Hawaiian Home Lands and the Ceded Lands provide an important foundation for the ability of the Native Hawaiian community to maintain the practice of Native Hawaiian culture, language, and traditions, and for the survival of the Native Hawaiian people. 

Comment: Since the HHCA is limited in its purpose and its scope to providing leasehold homesteads to persons of at least 50% Hawaiian ancestry, and since (as Finding (7) above acknowledges) only 6,800--less than 4%--of the approximately 200,000 Native Hawaiians (as defined in S. 81) hold leases under the HHCA and only 18,000 others--about 9%--are on the waiting list, it cannot fairly be said that the Hawaiian home lands could effectively help the entire "Native Hawaiian community" (most of whom are not eligible for a Hawaiian home lands lease because they lack the requisite blood quantum) to maintain any specific culture, language and traditions. Similarly, the Admission Act's ceded lands trust, to the extent that it may provide any resources expressly for persons of Hawaiian ancestry, provides those resources only for the 'betterment" of those meeting the 50% blood quantum requirement ("native Hawaiians" rather than "Native Hawaiians). See section 5(f), Hawai'i Admission Act, P. L. 86-3, 73 Stat. 4, (1959).  

The decision as to what constitutes the "betterment" of "native Hawaiians", of course, as well as the decision whether to apportion some, all or none of the ceded lands trust resources to that purpose, is committed to the citizens of the State of Hawai'i, see Price v. State of Hawai'i, 764 F.2d 623 (9th Cir. 1985) and not solely to persons of Hawaiian ancestry. As governmental decisions, they are subject to the constraints of the U. S. Constitution.  

 

(11) Native Hawaiians have maintained other distinctly native areas in Hawaii. 

Comment: There are several areas of the state where persons of Hawaiian ancestry tend to predominate, just as there are areas where persons of Filipino or Caucasian or Japanese

ancestry tend to predominate. They are "distinctly native" only in the sense that these other areas are "distinctly Filipino" or "distinctly Caucasian" or "distinctly Japanese". None of these areas could legitimately be considered a "tribal enclave" or anything like it. None of these areas is subject to any "government" other than the U. S. government, the State of Hawai'i and the City & County of Honolulu or another county of the State. 

 

(12) On November 23, 1993, Public Law 103-150 (107 Stat. 1510) (commonly known as the Apology Resolution) was enacted into law, extending an apology on behalf of the United States to the Native people of Hawaii for the United States role in the overthrow of the Kingdom of Hawaii. 

Comment: The so-called Apology Resolution appears to have been adopted without careful examination of the purported "history" which it recites (see S. Rep. 103-126 (1993) and S. Rep. 102-456 (1992)), and the statements in the resolution's preamble provide no reliable support for the positions taken in this bill. Chapter 10 of Thurston Twigg-Smith, Hawaiian Sovereignty: Do The Facts Matter? (1996) addresses each of the major historical assertions of the Apology Resolution and explains how they are in error, or misleading.  

The U.S. Supreme Court in Rice v. Cayetano, 528 U.S. 495, 505, 120 S.Ct. 1044, 1051 (2000) acknowledged the existence of the Apology Resolution and thereafter ignored it as historical authority, preferring instead its own inquiry, based on original sources and scholarly works.  

The Apology Resolution contains the following disclaimer: "Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States." 

When the Apology Bill was debated on the Senate floor, Senator Gorton asked Senator Inouye: 

Is this purely a self-executing resolution which has no meaning other than its own passage, or is this, in [the proponent Senators'] minds, some form of claim, some form of different or distinct treatment for those who can trace a single ancestor back to 1778 in Hawai'i which is now to be provided for this group of citizens, separating them from other citizens of the State of Hawai'i or the United States?

* * *

What are the appropriate consequences of passing this resolution? Are they any form of special status under which persons of Native Hawaiian descent will be given rights or privileges or reparations or land or money communally that are unavailable to other citizens of Hawai'i? 

Senator Inouye replied: 

As I tried to convince my colleagues, this is a simple resolution of apology, to recognize the facts as they were 100 years ago. As to the matter of the status of Native Hawaiians, as my colleague from Washington knows, from the time of statehood we have been in this debate. Are Native Hawaiians Native Americans? This resolution has nothing to do with that. . . . I can assure my colleagues of that. It is a simple apology.

139 Cong. Rec. S14477, 14480, Oct. 27, 1993. 

It would appear that the current bill views the Apology Resolution differently from the Senate which passed that resolution, since the resolution is now offered in support of precisely the demands foreseen by Senator Gorton. 

 

(13) The Apology Resolution acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people over their national lands to the United States, either through their monarchy or through a plebiscite or referendum. 

Comment: "Inherent Sovereignty". The Apology Resolution and S. 81 refer to the "sovereignty" or the "inherent sovereignty" of the "Native Hawaiian people" which was somehow taken from them at or about the time of the overthrow of the monarchy in 1893 and which has somehow persisted to the present day.  

There is no historical or legal basis for these assertions. "Native Hawaiians", under the kingdom, never had "inherent sovereignty" to lose.3  

Sovereignty, in the Hawaiian kingdom, resided inherently in the monarch, not the "people". In this respect, the monarchy was very different from a republic like the United States, where sovereignty--the supreme political authority within an independent nation--is with the people. 

This difference was clearly set out by the Hawaiian kingdom's supreme court in the case of Rex v. Booth, 2 Haw. 616 (1863). A law of the kingdom prohibited sales of liquor to "native subjects" of the kingdom, but not to other inhabitants or visitors. The defendants argued that the law was unconstitutional under the Kingdom's 1852 Constitution as discriminatory class or special legislation. They asserted that in constitutional governments, legislative authority emanates from the people, and that the legislature acts as agent of the people, and that "it is against all reason and justice to suppose . . . that the native subjects of this Kingdom ever entrusted the Legislature with the power to enact such a law as that under discussion." The court responded: 

Here is a grave mistake—a fundamental error—which is no doubt the source of such misconception. . . . The Hawaiian Government was not established by the people; the Constitution did not emanate from them; they were not consulted in their aggregate capacity or in convention, and they had no direct voice in founding either the Government or the Constitution. King Kamehameha III originally possessed, in his own person, all the attributes of sovereignty. 

The court reviewed Kamehameha III's promulgation of the 1840 Constitution and its 1852 successor and explained that by these documents the king had voluntarily shared with the chiefs and people of the kingdom, to a limited degree, his previously absolute authority. The court explained: 

Not a particle of power was derived from the people. Originally the attribute of the King alone, it is now the attribute of the King and of those whom, in granting the Constitution, he has voluntarily associated with himself in its exercise. No law can be enacted in the name, or by the authority of the people. The only share in the sovereignty possessed by the people, is the power to elect the members of the House of Representatives; and the members of that House are not mere delegates. 

It would appear that both Kamehameha V and Queen Lili'uokalani believed that this sharing of sovereignty could be revoked or modified by the monarch who granted it, or by his or her successor. In 1864, when Kamehameha V became frustrated with the inability of the legislature to agree on amendments to the 1852 Constitution, he simply dissolved the legislature and promulgated a new Constitution on his own authority with the statement (quoted here from 2 Kuykendall, The Hawaiian Kingdom 132 (1953)): 

As we do not agree, it is useless to prolong the session, and as at the time His Majesty Kamehameha III gave the Constitution of the year 1852, He reserved to himself the power of taking it away if it was not for the interest of his Government and people, and as it is clear that that King left the revision of the Constitution to my predecessor and myself therefore as I sit in His seat, on the part of the Sovereignty of the Hawaiian Islands I make known today that the Constitution of 1852 is abrogated. I will give you a Constitution. 

Of like mind was Queen Lili'uokalani, who stated: 

Let it be repeated: the promulgation of a new constitution, adapted to the needs of the times and the demands of the people, has been an indisputable prerogative of the Hawaiian monarchy. 

Lili'uokalani, Hawai'i's Story by Hawai'i's Queen 21 (1898). 

To these Hawaiian leaders of the past, a claim that the "Hawaiian people" had "inherent sovereignty" would likely have been viewed as treasonous. 

Nor was the government of the Hawaiian Islands, in the decades immediately before the ending of the monarchy, "Hawaiian" or "Native Hawaiian". As early as 1851, foreign-born subjects of the kingdom sat in the legislature (3 Kuykendall, The Hawaiian Kingdom 191 (1967)) and held various degrees of control during the monarchy period (See, e.g., id.at 401-402, 406-410, 448-455). Westerners as well as natives sat as judges in the courts of the kingdom (see, e.g., 2 Kuykendall, The Hawaiian Kingdom 241(1938)) and as members of the cabinet along with natives and part-Hawaiians. Westerners had been trusted advisors of the monarchs from the time of Kamehameha I, and during the reign of King David Kalakaua (1874-1891), power changed hands frequently. Some, but not all, of the King's ministers were Hawaiian. 

The king could appoint and dismiss ministers at will, and Kalakaua did precisely that. Before he was finally curbed he made thirty-seven ministerial appointments--more than all the kings before him had made among them--and eleven of these went to men of Hawaiian blood. 

Gavan Daws, Shoal of Time 214 (1968). (Bolding added.)  

It would be reasonable to infer that the remaining twenty-six appointments went to persons not of Hawaiian blood. 

By 1893, when the monarchy was replaced by a provisional government, natives and foreigners alike had long participated extensively in the political, social and economic life of the nation, and continued to do so. Racial tension was often high, but the government was not a government of, by or for a particular race. See generally 3 Kuykendall, The Hawaiian Kingdom (1967) ch. 19 - 20; Patrick W. Hanifin, A Tradition Of Inclusion: Rice, Arakaki, And The Development Of Citizenship And Voting Rights In Hawai`i, http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html 

The sovereignty of the kingdom, once resident solely in the monarch, passed upon the revolution to the provisional government, then to the Republic, and then, upon annexation, to the United States. It was as U.S. citizens that "Native Hawaiians" truly came to share in the "sovereignty" of their nation as a matter of right. 

The bill should omit any reference to past "sovereignty" of the "Native Hawaiian people". It never existed.  

"Plebiscite or referendum": Whatever might have been the feelings in 1893 or 1898 of the "native people of Hawaii" (who formed less than 40% of the population at that time), those same "native people" were full participants and a major political force within the Territorial government (see Lawrence H. Fuchs, Hawaii Pono: A Social History (1960), pp. 79-85, 161-62). In 1959, at the time of the statehood vote, they were about one-sixth of the populace, and the overwhelming 17 to 1 majority vote in the 1950 statehood plebiscite shows support by Hawaiians as well as other groups for that measure. Id. at 414.  

 

(14) The Apology Resolution expresses the commitment of Congress and the President to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and Native Hawaiians; and to have Congress and the President, through the President's designated officials, consult with Native Hawaiians on the reconciliation process as called for under the Apology Resolution. 

Comment: It is difficult to see how "reconciliation" can be advanced by separation; that is, by the establishment of a separate race-based "governmental" entity for Native Hawaiians within the State of Hawai'i. The U.S. Supreme Court has termed racial classifications "odious to a free people" (Hirabayashi v. U.S., 320 U. S. 81 (1943)) and "presumptively invalid" (Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979)); see generally Adarand v. Pena, 515 U.S. 200 (1995), in which the Court declared that "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny". S. 81 would segregate Hawai'i's population into two racially-defined groups, one with special status and privileges under Federal (and perhaps state) law and one without.  

In Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044, (2000) the U. S. Supreme Court, in declaring unconstitutional a State of Hawai'i law restricting the franchise for certain statewide elections to "Hawaiians" defined by ancestry in a manner essentially identical to the definition of "Native Hawaiian" in S. 81, condemned discrimination on grounds of ancestry as follows: 

Id. at 517, 120 S.Ct. at 1057.

These pronouncements of the U.S. Supreme Court indicate that S. 81, if challenged, would be unlikely to pass constitutional muster. For Hawaiians to have their expectations raised by this bill, only to have those hopes dashed when the bill is found unconstitutional, can hardly advance "reconciliation"; in fact, such a course of events would be seen by many Hawaiians as one more in a long chain of "broken promises". 

 

(15) Despite the overthrow of the Hawaiian government, Native Hawaiians have continued to maintain their separate identity as a distinct native community through the formation of cultural, social, and political institutions, and to give statement to their rights as native people to self-determination and self-governance as evidenced through their participation in the Office of Hawaiian Affairs. 

Comment: This statement is factually inaccurate.  

a. Native Hawaiians, as defined in S. 81, are thoroughly integrated into Hawai'i's social, economic and political life. (See the comments to Finding (2) above.) The formation of cultural, social and political institutions as described in this proposed finding is no more unique to Native Hawaiians than it is to any of the other ethnic groups which came to the islands and stayed to build communities. More importantly, as Robert C. Schmitt, Hawai'i's former State Statistician makes clear in the quoted material in the Comment to Finding (2) above, underlying the separating influences of ethnic traditions in the islands is an integration, fostered and perpetuated by extensive interracial and intercultural marriage, which is rapidly eroding even the remnants of ethnic boundaries which exist today.  

b. Native Hawaiians do not give statement to "rights as native people to self-determination and self-governance" through OHA. OHA is a state agency. It carries out a discretionary decision of the state to apply certain state funds to "the betterment of native Hawaiians and Hawaiians", two groups identified solely by what the U.S. Supreme Court has ruled to be a racial definition. Rice v. Cayetano, 528 U. S. 495, 514-15, 120 S.Ct. 1044, 1055-56 (2000). OHA is managed by trustees who are state officials elected by all the citizens of the state. OHA's status as a state agency was precisely the reason why the U.S. Supreme Court in Rice v. Cayetano determined that it was unnecessary to decide whether Native Hawaiians are, legally speaking, analogous to American Indians; the court stated that whatever might be the rule in tribal elections, the election for OHA trustees was a state election for state officials, so the Fifteenth Amendment applied and invalidated the limitation of the franchise to one racial group. Rice v. Cayetano, 528 U. S. at 520-22, 120 S.Ct. at 1058-59. So OHA is not a vehicle for "self-determination and self-governance", except perhaps in the limited sense that all citizens engage in self-determination and self-governance on an individual basis by participating in the government of the state and the nation. 

It might be noted that the "self" involved in the asserted "self-determination" and "self-governance" is a group defined in this bill by race, or as the U. S. Supreme Court described it in Rice v. Cayetano, supra, by ancestry used as a proxy for race. The basic premise of the Fifteenth Amendment and of cases such as Gomillion v. Lightfoot, 364 U.S. 339 (1960) is that in the United States, racial groups have no rights to "self-determination" or "self-governance" which involve the exclusion of their neighbors of different races from the equal access to government. 

 

(16) Native Hawaiians also maintain a distinct Native Hawaiian community through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, children's services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs and native language immersion schools from kindergarten through high school, as well as college and master's degree programs in native language immersion instruction, and traditional justice programs, and by continuing their efforts to enhance Native Hawaiian self-determination and local control.  

Comment: This statement is inaccurate.  

Native Hawaiians as a racial group (as defined by S. 81 bill) or as any other sort of group do not provide "governmental services" to anyone except insofar as individuals or groups might (1) assist state or local governmental agencies in providing governmental services or (2) offer, in a private capacity, services such as education which state or local government agencies also offer.  

While the services listed are important and valuable, they are also provided, to Native Hawaiians and the rest of the state's citizens, both by true governmental agencies and by private schools, service clubs, labor unions and other community service organizations which may or may not have roots in, or a focus on, one or more of the islands' ethnic elements.  

There is no Native Hawaiian government or anything resembling such an entity.  

 

(17) Native Hawaiians are actively engaged in Native Hawaiian cultural practices, traditional agricultural methods, fishing and subsistence practices, maintenance of cultural use areas and sacred sites, protection of burial sites, and the exercise of their traditional rights to gather medicinal plants and herbs, and food sources. 

Comment: It is no doubt true that some Native Hawaiians, as racially defined in S. 81, engage in some or all of these activities, although as noted in the Comments to Findings (1) and (2) above, since "Native Hawaiians" are found throughout the society of the state and nation at all economic, social, educational and occupational levels, their "cultural practices" may vary widely. Certainly, the "cultural practices" even of those seeking to recapture the remote past do not include such "practices" of ancient Hawaiian society as incest among community leaders or human sacrifice; these were abandoned at the insistence of the Hawaiian rulers shortly before the arrival of Christian missionaries in 1820.  

Of course, persons who are not Native Hawaiians also engage in the activities listed in this Finding, and on the other hand, many Native Hawaiians do not engage in them. To the extent that this Finding is true of some or even many Native Hawaiians, it is nonetheless immaterial to the decision whether to enact S. 81. 

The nature and extent of "traditional rights to gather medicinal plants and herbs, and food sources" is a matter of considerable debate. See generally Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai'i, 20 U. Haw. Law Rev. 99 (1998).  

 

(18) The Native Hawaiian people wish to preserve, develop, and transmit to future Native Hawaiian generations their ancestral lands and Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions, and to achieve greater self-determination over their own affairs. 

Comment: Undoubtedly some people of Hawaiian ancestry desire some or all of these things. They are pretty much universal human aspirations. However, (1) if "ancestral lands" means "ceded lands", then Native Hawaiians as defined in the bill have no special claim to those lands, and (2) if "Native Hawaiian political . . . identity" means "political power allocated by statute on the basis of race", then governmental action to preserve, develop or transmit such power would likely be unconstitutional, and (3) if "self-determination" involves special political power over state or Federal governmental decisions for a group defined by race or ancestry, then such self-determination would run afoul of the decision in Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044 (2000). 

"Ceded lands." Native Hawaiian advocates have long asserted that Native Hawaiians have some special claim to the former Crown and government lands of the kingdom, sometimes referred to as the "ceded lands" because they were granted or "ceded" to the United States upon Hawai'i's annexation in 1898. These claims were examined in detail by the Congressionally-chartered Native Hawaiians Study Commission in 1983 and were found to have no legal basis. See "Existing Law, Native Hawaiians and Compensation", 1 Final Report of the Native Hawaiians Study Commission (1983), pp. 333-370; but see dissenting view in 2 Final Report of the Native Hawaiians Study Commission (1983) 7-11, 80-99 (proposing moral rather than legal bases for reparations). They were examined again in 1995 in an environmental impact statement for land use changes at the Bellows Air Force Station in Waimanalo, Oahu. U.S. Pacific Command, Final EIS for Land Use Development at Bellows Air Force Station, Waimanalo, HI (1995), section 6.6. The Record of Decision therein concluded that these claims had no legal or historical validity. 61 Fed. Reg. 28568, June 5, 1996. These findings were not novel; they were fully consistent with the 1910 decision of the U.S. Court of Claims denying ex-Queen Lili'uokalani's claim for compensation for the loss of her interest in the Crown lands and holding that both the Crown and the government lands of the kingdom were, in essence, "public lands" (Lili'uokalani v. U.S., 48 Ct. Cl. 418 (1910)).  

There is absolutely no legal support whatsoever for the notion that at the time of the overthrow of the monarchy or at any time after the land revolution which began in 1848, Native Hawaiians held any interest, directly or as beneficiaries of some sort of implied trust, in the ceded lands. Every credible legal authority is to the contrary. See, e.g., Jon J. Chinen, The Great Mahele, Hawaii's Land Division of 1848 15-20 (1958); Louis Cannelora, The Origin of Hawaii Land Titles and of the Rights of Native Tenants (1974); and the authorities cited in the paragraph immediately above. See generally Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai'i, 20 U. Haw. Law Rev. 99 (1998). 

There is, of course, no barrier to persons of Hawaiian ancestry carrying out the very legitimate desires set out in this Finding, so long as they do not seek race-conscious support of Federal, state or local government to do so. It should also be borne in mind, as more fully explained in the Comments to Findings (1) and (2) above, that the "traditions, beliefs, customs and practices, language, and social and political institutions" of today's "Native Hawaiians" as defined in S. 81 are not those of precontact Hawai'i and are, in most respects, those shared by all the intermixed, intermarried inhabitants of the State of Hawai'i  

 

(19) This Act provides for a process within the framework of Federal law for the Native Hawaiian people to exercise their inherent rights as a distinct aboriginal, indigenous, native community to reorganize a Native Hawaiian government for the purpose of giving statement to their rights as native people to self-determination and self-governance. 

Comment: For reasons explained earlier in this paper, Native Hawaiians as defined in the bill do not have inherent rights other than those shared by all citizens of the state and the nation, are not aboriginal or indigenous, are not a "native community", and have no rights to self-determination or self-governance other than the political rights held by all citizens of the state of Hawai'i and the United States. In addition, at the end of the monarchy in 1893 and for many years before, there was no "Native Hawaiian governing body" in the sense of a government exclusively of, by or for Native Hawaiians, and there is no legal, historical or moral basis for the "reorganization" or creation of such a racially-defined body now. 

The broad power of the Federal executive and Congress notwithstanding, no "tribe" can be created where none exists in reality. As explained in more detail in the Comment on Finding (1) above, the U.S. Supreme Court in U.S. v. Sandoval, 231 U.S. 28 (1913) held that while the Pueblo Indians could be brought by Congress within the "special relationship" with Indian tribes even though the Pueblos did not share all the characteristics of other tribes, "it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts." Id. at 46.  

This warning deserves careful consideration before Congress attempts to bring "Native Hawaiians", who share none of the group or individual characteristics deemed pertinent in Sandoval, within the ambit of the "special relationship" which Congress has with true Indian tribes. Unlike the Pueblo communities, there is no unifying group character to "Native Hawaiians" other than race.  

There is no Hawaiian "tribe", and one case which considered a claim by a purported Hawaiian tribe indicates that Hawaiians are unlikely to be able to establish such a status. Price v. Hawai'i, 764 F.2d 623 (9th Cir. 1985).  

Thus the bill would, if enacted, extend privileged political status to a group defined solely by race or ancestry. Considering the pernicious effects of racial discrimination and the U.S. Supreme Court's cautionary language in Rice, such an outcome appears neither socially wise nor constitutionally permissible. 

 

(20) The United States has declared that--

(A) the United States has a special responsibility for the welfare of the native peoples of the United States, including Native Hawaiians; 

Comment: See the comments on Findings (1) and (3) above. With all due respect for Congress' authority, it must be noted that Congress' constitutional power relates to Indian tribes, not to "native peoples of the United States". In Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044 (2000), the Court, in passing on the State of Hawai'i's argument that special statutory treatment for Native Hawaiians is justified on the same basis as Congress' power with respect to Indians, said "[a]s we have observed, 'every piece of legislation dealing with Indian tribes and reservations . . . single[s] out for special treatment a constituency of tribal Indians." Id. at 1058. In discussing Morton v. Mancari, 417 U.S. 535 (1974), the Rice Court took pains to note that in Morton, "the Court found it important that the preference [there in question] was 'not directed toward a "racial" group consisting of "Indians"', but rather 'only to members of "Federally recognized" tribes.'" Id. As noted earlier in these comments, extending Congress' "special responsibility" to "native peoples" goes beyond present law. 

 

(B) 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; and

(C) Congress has also delegated broad authority to administer a portion of the Federal trust responsibility to the State of Hawaii. 

Comment: Although there is ample room for debate about whether Congress has in fact delegated "broad authority" to the state and whether Congress has any "trust responsibility" for Native Hawaiians, the issue is not whether Congress has done what the proposed Finding says, but whether in so doing Congress acted within its constitutional authority. The U.S. Supreme Court's decision in Rice v. Cayetano raises a significant doubt on this point (See Comment to Policies 3(a)(1)(A), (B) and (C) infra.) 

 

(21) The United States has recognized and reaffirmed the special trust relationship with the Native Hawaiian people through--

(A) the enactment of the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (Public Law 86-3; 73 Stat. 4) by--

(i) ceding to the State of Hawaii title to the public lands formerly held by the United States, and mandating that those lands be held in public trust for 5 purposes, one of which is for the betterment of the conditions of Native Hawaiians; and 

Comment: This finding is inaccurate. There is no general mandate in the cited statute (the Hawaii Admission Act) that any of the ceded lands be held or applied in whole or part for the betterment of the conditions of "Native Hawaiians" as defined in this bill.  

a. First and most obviously, while the Hawai'i Admission Act permits the use of public trust resources for "the betterment of the conditions of native Hawaiians", that class consists only of persons of 50% or more Hawaiian "blood", not "Native Hawaiians" defined in the bill as persons with any degree of Hawaiian ancestry.

See section 5(f), Hawai'i Admission Act, P. L. 86-3, 73 Stat. 4, (1959). 

b. Second, the Admission Act did not require that all or any part of the ceded land trust be actually used for the betterment of the conditions of native Hawaiians; it merely listed "the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act" as one of five purposes for which the ceded lands trust proceeds might be used. The statute expressly states that the proceeds of the ceded lands trust may be used for "one or more" of the five enumerated purposes. The statute permits the state to determine how the trust proceeds are distributed. Price v. State of Hawai'i, 764 F.2d 623 (9th Cir. 1985). Such state decisions, of course, are subject to the constraints of the Fourteenth Amendment and the Adarand decision with respect to any racial test for allocation or receipt of benefits. Indeed, because the U.S. Supreme Court has held that the definition of "native Hawaiian" in Hawai'i's statutes is racial (see Rice v. Cayetano, 528 U.S. 495, 514-517, 120 S.Ct. 1044, 1055-57 (2000)), the Admission Act provision concerning "native Hawaiians" is itself of questionable constitutionality. 

 

(ii) transferring the United States responsibility for the administration of the Hawaiian Home Lands to the State of Hawaii, but retaining the authority to enforce the trust, including the exclusive right of the United States to consent to any actions affecting the lands which comprise the corpus of the trust and any amendments to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42) that are enacted by the legislature of the State of Hawaii affecting the beneficiaries under the Act. 

Comment: Claims of a Federal trust relationship founded upon the Hawaiian Homes Commission Act (HHCA) and the Hawai'i Admission Act which transferred HHCA responsibilities to the State of Hawai'i have been rejected by the Federal courts. 

In 1978 the U.S. Court of Appeals for the Ninth Circuit dismissed claims for breach of a claimed trust brought by beneficiaries of the HHCA against that agency and its chairman. It held that plaintiffs had no Federal cause of action under the Admission Act because "[w]ith Hawai'i's admission into the Union, the national government virtually relinquished its control over and interest in the Hawaiian home lands. The problem described in plaintiffs' complaint is essentially a matter of state concern." Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 588 F.2d 1216, 1224 (9th Cir. 1978). It held further that the Federal court lacked jurisdiction over plaintiffs' claims under the HHCA itself because that act, after statehood, was a matter of state rather than Federal law.  

A claim of a trust relationship was raised again and rejected again in Han v. Department of Justice, et al., 824 F.Supp. 1480 (D. Hawai'i 1993), aff'd 45 F.3d 333 (9th Cir. 1995). The District Court stated bluntly: 

First, as a matter of law, the federal defendants have no trust responsibility to plaintiff or other native Hawaiians under statutory or case law. The Ninth Circuit Court of Appeals has expressly held that "the state is the trustee . . . The United States has only a somewhat tangential supervisory role under the Admission [Statehood] Act, rather than the role of trustee. . . . Furthermore, nothing in the statutes at issue here indicates the federal defendants have a trust duty. The Admission Act specifically requires the State of Hawai'i to hold the home lands "as a public trust for the . . . betterment of the conditions of native Hawaiians." Admission Act section 5(f). There is no such corresponding duty on the part of the United States.  

Id. at 1486.  

Indeed, the District Court expressly rejected the argument set out in this bill's Finding that the Federal government's reserved power to enforce the state's obligation, and the restrictions imposed on the state's power to amend the HHCA, implied a Federal trust obligation. The court stated: 

Section 4 merely establishes a compact between the State of Hawai'i and the United States, whereby the state has agreed not to amend any of the Commission Act's substantive provisions without the consent of the United States. Admission Act section 4. This creates an obligation of the state, not the federal government. And while the federal government may bring an enforcement action, it is not by law required to. 

Id. at 1486. 

More fundamentally, the HHCA provides no support for the arguments that Congress has constitutional authority to legislate concerning the "conditions of Native Hawaiians", that HHCA benefits are not "racially" allocated or that the racial distinction at its core is constitutional. As noted above, the HHCA benefits only those of 50% Hawaiian blood under a definition of "native Hawaiian" which the U. S. Supreme Court in Rice v. Cayetano, 528 U.S. 495, 516, 120 S.Ct. 1044, 1056 (2000) found to have an "explicit tie to race". Beyond this, the HHCA itself is constitutionally infirm; as noted in the Comment to Finding 5 above, the blatant racial basis for the HHCA would be unlikely to survive a strict scrutiny review today.  

 

(22) The United States continually has recognized and reaffirmed that--

(A) Native Hawaiians have a cultural, historic, and land-based link to the aboriginal, native people who exercised sovereignty over the Hawaiian Islands; 

Comment: If this finding is intended to imply that modern-day Hawaiians maintain the societal and cultural forms of the precontact inhabitants of the islands, then this "finding" is incomplete and inaccurate. Native Hawaiians, defined as they are in S. 81 as descendants of the precontact inhabitants of the islands, necessarily have a "historic" link to their ancestors, but any link to precontact Hawaiian culture is more debatable, and in fact is nonexistent for many modern-day Hawaiians. 

Precontact Hawaiians had no written history, and there is debate as to who the "aboriginal, native people" were, where they came from and when they arrived. See generally Eleanor C. Nordyke, The Peopling of Hawaii (2nd ed., 1989) 7-12. There is a considerable body of opinion that there were various waves of migration, with the first perhaps from the Marquesas Islands between 200 and 700 A.D. and another from Tahiti between 900 and 1300 A.D. Captain James Cook's arrival in the islands in 1778 initiated another period of migration which still continues. 

Culturally, the society of the Hawaiian Islands underwent significant change both before and after Western contact. There was at least one radical discontinuity reflected in the legends and oral traditions which occurred long before Western contact, when immigrants from the South Pacific introduced the "kapu" system which ensured the absolute power of the chiefs over the commoners. See Martha Beckwith, Hawaiian Mythology (1970), pp. 369-375. Thus the precontact culture of 1778 was apparently quite different from the precontact culture of the earlier immigrants.  

After Western contact, radical change and cultural discontinuity were the order of the day, but the Hawaiian people were as much agents as victims of these changes. Hawaii's early kings and chiefs accomplished a near miracle in maintaining their nation's independence while guiding and shaping the chaotic forces which focused on the islands. It was Hawaii's own native leaders who dispensed with the "old religion" of polytheism and human sacrifice even before the arrival of Christian missionaries in 1820. 1 Kuykendall, The Hawaiian Kingdom (1938) pp. 65-70. A generation later, it was Hawaii's own native leaders, drawing upon but not surrendering to their Western advisors, who replaced ancient forms of governance, land management, land ownership and many aspects of economic life with Western models. See generally 1 Kuykendall, The Hawaiian Kingdom (1938), pp. 227-334; Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998) 112-117. By the time it passed into history, the Hawaiian kingdom was a constitutional monarchy in the Western style, with a racially mixed legislature, judiciary and Cabinet governing a multi-racial nation which was fully accepted as an equal in Western diplomatic circles and boasted a literate citizenry well-educated in Western as well as Hawaiian ways. See generally 3 Kuykendall, The Hawaiian Kingdom (1967).  

One other vital influence on Hawaiian history since Western contact was an early and continued practice of intermarriage by Hawaiians with all the ethnic and racial groups which have made Hawaii their home over the last two hundred years and more. Intermarriage brought a multitude of cultural influences into the cultures of Hawaiians and new arrivals alike.  

Thus from the perspective of history we see that as the continuity of Hawaiians to the old precontact culture waned, their continuity to the varied cultures of the Pacific and the world expanded and intensified. Indeed, the asserted "links" of all modern-day Native Hawaiians to their precontact ancestors are perhaps most accurately viewed as the justifiable pride of ancestry and historical connection we all feel for the best traditions and accomplishments of our ancestors. For today's 8,000 or so "pure" Hawaiians, that pride may be more focused than in the thousands of Hawaiians whose forebears came not only from Hawai'i, but from varied regions of Europe, Asia and America and whose ancestors thus represent most of the great civilizations of the earth. But pride of ancestry is a universal characteristic of humanity. As it exists in Hawai'i, it implies no political consequence and justifies no special treatment.  

Thus whatever form or forms the precontact Hawaiian "society" took before Captain James Cook arrived in 1778, it cannot be said that it persists today as it existed either at Western contact or at any time before that. To the extent that there is a "Hawaiian culture" today, it is not the culture of precontact Hawai'i, but a radically evolved blend of old and new, with the new predominating, and it is a "culture" embraced by many who have no Hawaiian ancestry at all.  

It would be inaccurate to say that today's Native Hawaiians as defined by this bill have, as a group, a distinct society or lifestyle. As the passage from George Kanahele quoted in the Comment to Finding 2 above makes clear, the society and culture of today's Native Hawaiians, as they are defined in this bill, is the society and culture of the State of Hawaii and the United States. They do not, as a group or as several groups, live apart from the larger community of the state and nation. Today's citizens of Hawaiian extraction do not practice the religion, speak the language, or follow the forms of government, economics or any other defining social or cultural structures of precontact Hawaiian civilization. See Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998).  

Indeed, "Native Hawaiians", as a group defined by race or ancestry, cannot fairly be said to share today any common language, religion, economic regime, form of self-government or other unique group-identifying features except those of the United States and the State of Hawai'i as a whole; "they" are fully and completely integrated into the larger social and economic life of the state of Hawaii and the nation. They hold positions of power and respect at all levels of society including business, government and the arts; for example, in the past several years, Hawaii has had a Native Hawaiian Governor (John Waihee), a Native Hawaiian state supreme court chief justice (William S. Richardson), a U.S. Senator (Daniel Akaka) and numerous state officials and members of the state legislature. 

If the Congress undertakes a full and open exploration of this issue, it is most likely to conclude that as to "Native Hawaiians", "they" are "us"--Americans, like all the other varied Americans in the state and the nation, mostly with mixed racial or ethnic backgrounds and sharing in the freedom and diversity of lifestyles guaranteed under the U.S. Constitution. The Congress would therefore find, consistent with Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995), that each "Native Hawaiian" deserves the same access to political power, and the same governmental assistance when necessary, as any American of any race--without regard to race except as the U. S. Constitution might permit it--but they do not deserve any more.  

 

(B) Native Hawaiians have never relinquished their claims to sovereignty or their sovereign lands; 

Comment: "Sovereignty". "Native Hawaiians" as defined by this bill never had any "sovereignty", either under the monarchy or before, to relinquish. See the Comment to Finding (13) above. 

"Sovereign lands". The meaning of this term is not set out in the bill, but the near certainty is that it refers to the so-called "ceded lands"--the Crown lands and government lands of the kingdom, taken over by the revolutionary government in 1893 and ceded to the United States at annexation in 1898.  

Native Hawaiian advocates have long asserted that Native Hawaiians have some special claim to these lands.  

These claims are baseless. As explained in the Comment to Finding 18 above, the ceded lands were lands of the kingdom, and from the time of the Great Mahele of 1848, "Native Hawaiians" as a racial or ancestrally-defined group had no legal interest in or right to these lands except insofar as they had rights to vote as subjects of the kingdom--rights shared by the non-"Native Hawaiian" subjects and denizens of the kingdom. Patrick W. Hanifin, Hawaiian Reparations: Nothing Lost, Nothing Owed, 17 Hawai'i B.J. 107 (1982); "Existing Law, Native Hawaiians and Compensation", 1 Final Report of the Native Hawaiians Study Commission (1983), pp. 333-370; U.S. Pacific Command, Final EIS for Land Use Development at Bellows Air Force Station, Waimanalo, HI (1995), section 6.6.  

 

(C) the United States extends services to Native Hawaiians because of their unique status as the aboriginal, native people of a once sovereign nation with whom the United States has a political and legal relationship; and

(D) 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. 

Comment on Findings 22(C) and (D): See comments to Findings (1) and (3) above.  

 

SEC. 2. DEFINITIONS.

In this Act:

(1) ABORIGINAL, INDIGENOUS, NATIVE PEOPLE- The term `aboriginal, indigenous, native people' means those people whom Congress has recognized as the original inhabitants of the lands and who exercised sovereignty prior to European contact in the areas that later became part of the United States. 

Comment: This term is unhelpful as applied to Native Hawaiians, since with the exception of the ruling chiefs of the islands, neither the original inhabitants of Hawai'i nor "Native Hawaiians" as defined in the bill exercised sovereignty prior to European contact. See Rex v. Booth, 2 Haw. 616 (1863) and the comment to Finding (13) above. 

Congressional recognition of the "original inhabitants" appears to be of material consequence to the rights of present-day individuals. In light of Rice v. Cayetano, that recognition must pass the test of strict scrutiny. It would be appropriate for Congress to review any past "recognition" of this sort and reopen the matter so that all affected persons may be heard on the issue. 

 

Sections 2(1) through 2(5). 

No comments are offered on sections (2)(1) through (2)(5) of the bill. 

 

(6) INDIGENOUS, NATIVE PEOPLE. – The term ``indigenous, native people'' means the lineal descendants of the aboriginal, indigenous, native people of the United States. 

Comment: This definition, with its exclusive focus on ancestry, carries the same constitutional implications as the definitions of "Hawaiian" and "native Hawaiian" addressed in Rice v. Cayetano. This definition, like those, uses ancestry as a proxy for race, and any statute relying upon it must be drafted to meet the constitutional test of strict scrutiny as described in Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995). 

 

(7) NATIVE HAWAIIAN-

(A) Prior to the recognition by the United States of a Native Hawaiian government under the authority of section 7(d)(2) of this Act, the term `Native Hawaiian' means the indigenous, native people of Hawaii who are the lineal descendants of the aboriginal, indigenous, native people who resided in the islands that now comprise the State of Hawaii on or before January 1, 1893, and who occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii, and includes all Native Hawaiians who were eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act (42 Stat. 108, chapter 42) and their lineal descendants. 

Comment: This definition is indistinguishable, in its essentials, from the definition of "Hawaiian" which the U.S. Supreme Court in Rice v. Cayetano found to be "racial". As with the definition of "Hawaiian", this definition identifies a class within today's population of Hawai'i solely by ancestry. As with the definition of "Hawaiian", the ancestral link must be to the inhabitants of the Hawaiian Islands before Western contact; the definition of "Hawaiian" describes these precontact inhabitants as those in the islands before 1778, while this bill refers to them as the "aboriginal, indigenous, native people", but the group is manifestly the same. Lest there be any doubt, subsection 2(1) of the bill defines "aboriginal, indigenous, native people" as the "original inhabitants . . . prior to European contact".  

The language in the bill limiting the benefited class to descendants of those "who resided in the islands that now comprise the State of Hawai'i on January 1, 1893" does nothing to lessen its racial character. What makes the definition "racial" is the test for who is in the class, not the exclusion of a subclass within that class. For example, the definition of "Hawaiian" in OHA's governing statute is far broader than the definition of "native Hawaiian", yet the Court in Rice v. Cayetano held that both of these definitions share "an explicit tie to race." Rice v. Cayetano, 528 U.S. 495,516, 120 S.Ct. 1044, 1056. The court went on to say: 

Id. 

Thus those who are in the class favored by this bill are only those with the right ancestry. The date restriction adds the arbitrary feature of excluding some members with the right ancestry whose ancestors were in the wrong place at the critical time. Far from having a class which is not defined by race, we have a class which is defined by race and which additionally discriminates, for no obvious reason, against a subclass of that racial class.4 But the fundamental test is race, or ancestry used as a proxy for race. As the U.S. Supreme Court put it in Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044 (2000), with respect to the definition of "Hawaiian" there in question: 

Ancestry can be a proxy for race. It is that proxy here. . . . The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose. 

Id. at 514-515, 120 S.Ct. at 1055-1056. 

It is also noteworthy that the test of ancestry also excludes those of the wrong ancestry who were in the right place at the critical time. Subjects and denizens of the Kingdom in 1893 who were not descended from an ancestor of the qualifying race apparently have no special status under this bill. 

Given the racial character of the bill's definition of "Native Hawaiian" and the absence of justification for classifying Hawai'i's citizens on that ground, it must be concluded that S. 81 would not survive constitutional challenge. 

 

(B) Following the recognition by the United States of the Native Hawaiian government under section 7(d)(2) of this Act, the term `Native Hawaiian' shall have the meaning given to such term in the organic governing documents of the Native Hawaiian government. 

Comment: Section 7(d)(1)(B) provides in pertinent part that "[t]he Secretary shall certify that the organic governing documents . . . (ii) are consistent with applicable Federal law and the special trust relationship between the United States and the indigenous native people of the United States[.]" Of course, the constitutional principles enunciated in Adarand v. Pena, 515 U.S. 200 (1995) and Rice v. Cayetano, 528 U.S. 495 (2000) are part of "applicable Federal law", and for the reasons set out throughout these comments, they interpose a most daunting constitutional barrier to the Secretary's making the specified findings, at least so long as the governing documents preserve the "explicit tie to race" found objectionable in Rice.  

 

(8) NATIVE HAWAIIAN GOVERNMENT- The term `Native Hawaiian government' means the citizens of the government of the Native Hawaiian people that is recognized by the United States under the authority of section 7(d)(2) of this Act. 

Comment: By defining "Native Hawaiian government" as "the citizens of the government of the Native Hawaiian people", the bill makes difficult the "meaningful, regular, and appropriate consultation" and "government to government" relations mentioned in Section 4 of the bill. Under this definition the "Native Hawaiian 

government" is not a representative council or leadership organ; it is essentially every Native Hawaiian on the roll. That would imply that consultation with the "government" requires contact with every single "citizen", and that the leadership of the "government" has no special role.
 

 

Sections 2(9) through 2(12). 

No comments are offered on Sections 2(9) through 2(12). 

 

SEC. 3. UNITED STATES POLICY AND PURPOSE.

(a) POLICY- The United States reaffirms that--

(1) Native Hawaiians are a unique and distinct aboriginal, indigenous, native people, with whom the United States has a political and legal relationship; 

Comment: The statement reaffirmed is inaccurate. 

a. "A unique and distinct . . . people". As explained in the Comment to Findings (2) and (15) above, the comprehensive integration of Native Hawaiians at all levels of state and national life precludes the claim that Native Hawaiians today are either "unique" or "distinct" in any other sense than the racial one, except insofar as every group within this country can claim "uniqueness" and "distinctness". Of course, nothing in this statement of policy and purpose explains how the claimed "distinctness" or "uniqueness" of this group, identified (in this bill and in other laws) solely by race or ancestry, would entitle it to preferential treatment under law, or exempt such treatment from the constraints of the Fourteenth Amendment.  

b. "Political and legal relationship". The United States has no "political" relationship with the group identified as "Native Hawaiians" in this bill. The claim of a political relationship is intended to bring Native Hawaiians within the constitutional rule of Morton v. Mancari, 417 U.S. 535 (1974), discussed in the Comment to Finding (1) above. In Morton, the U. S. Supreme Court held that Congress had a "unique obligation toward the Indians" which was "political". It said: 

The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as 'Indians'. In this sense, the preference is political rather than racial in nature 

The "political" relationship, however, could exist in Morton because there was a "polity"--a pre-existing political unit with a political organization--which could be "federally recognized". There is no such existing entity consisting of Native Hawaiians; the only group identified in this bill as "Native Hawaiians" is one defined by race or ancestry. 

For the same reason, the United States has no "legal" relationship with "Native Hawaiians" as defined in this bill, except perhaps the same legal relationship it has with all other U. S. citizens. The U.S. Supreme Court in Rice v. Cayetano, 528 U.S. 495, 524, 120 S.Ct. 1044, 1060 (2000), put it succinctly: 

When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the state of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii. 

 

(2) the United States has a special trust relationship to promote the welfare of Native Hawaiians; 

Comment: This is incorrect. See the comments to Findings (3) and (20)(A) above.  

 

(3) Congress possesses the authority under the Constitution to enact legislation to address the conditions of Native Hawaiians and has exercised this authority through the enactment of--

(A) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42);

(B) the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (Public Law 86-3; 73 Stat. 4); and

(C) more than 150 other Federal laws addressing the conditions of Native Hawaiians; 

Comment: This, of course, is precisely the issue the U. S. Supreme Court carefully declined to address in Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044 (2000), calling it "difficult terrain". It said: 

If Hawai'i's [racial voting] restriction were to be sustained under [Morton v. ] Mancari [417 U.S. 535, (1974)] 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 [in the Hawai'i Admission Act] 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 native 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 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 the native Hawaiians as it does the Indian tribes. Compare Van Dyke, The Political Status of the Hawaiian People, 17 Yale L. & Pol'y Rev. 95 (1998) with Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996).

Id. at 1057-58. 

These comments by the U. S. Supreme Court hardly justify the sweeping statement of this subsection concerning Congressional authority to "address the conditions of Native Hawaiians", except insofar as Congress might "address the conditions of Native Hawaiians" in a context of addressing the conditions of all the citizens of Hawai'i, without regard to race. 

It should also be noted that the statutes referred to in this subsection--the Hawaiian Homes Commission Act (HHCA) and the Hawai'i Admission Act--both speak only of "native Hawaiians", defined as persons with at least 50% Hawaiian ancestry, not "Native Hawaiians" as defined in this bill. In Rice v. Cayetano, the U. S. Supreme Court held that the definition of "native Hawaiian" in the governing statutes of the state's Office of Hawaiian Affairs, which is essentially identical to the definition in the cited Federal statute, was racial. Id. at 1056. 

 

(4) Native Hawaiians have--

(A) an inherent right to autonomy in their internal affairs;

(B) an inherent right of self-determination and self-governance;

(C) the right to reorganize a Native Hawaiian government; and 

Comment: The statements in (4)(A) and (B) are true only to the extent that they are true of all of the citizens of the state of Hawai'i. On the matter of self-determination and self-governance, see the Comment to Finding (15) above. The statement in (4)(C) is accurate only in the sense that any group of individuals may organize itself for lawful purposes and establish a body to govern itself. The evident purpose of (4)(C), however is to validate the creation of an organization of Native Hawaiians which Congress can and will recognize as having a "government-to-government" relationship with the United States. For the reasons set out earlier in this document (see, e.g., the Comments to Findings (1) and (19)), that is not constitutionally permissible. 

 

(D) the right to become economically self-sufficient; and 

Comment: The meaning of this statement is not clear. If the statement means that Native Hawaiians, however defined, have the same rights as all Americans to compete and advance economically, then the statement is unobjectionable. If is means that Native Hawaiians have some right to "be" as well as to "become" economically self-sufficient (that is, that they have some sort of right or entitlement to have the Federal government guarantee economic independence), then this bill would work a profound change in America's social and economic policy in favor of this single racial group. Such a change would present grave questions on both the policy and constitutional levels. 

 

(5) the United States shall continue to engage in a process of reconciliation and

political relations with the Native Hawaiian people. 

Comment: See Comments to Finding (14) and Policy 3(a)(1) above. 

 

(b) PURPOSE- It is the intent of Congress that the purpose of this Act is to provide a process for the reorganization of a Native Hawaiian government and for the recognition by the United States of the Native Hawaiian government for purposes of continuing a government-to-government relationship. 

Comment: As noted in the Comment to Finding 13 above, there was no purely "Native Hawaiian government" during either the time of the Hawaiian monarchy, the time of the Provisional Government and the Republic after the 1893 revolution, or the time following annexation in 1898. The government of the Hawaiian Islands was racially integrated and, for the times, remarkably free from discrimination. Thus it is improper to speak of "reorganizing" a "Native Hawaiian government". What this bill would do is to create a wholly new entity so as to invest a single one of Hawai'i's many racial groups with special governmental power. As noted elsewhere in these comments, such a course is almost certainly unconstitutional. 

 

SEC. 4. ESTABLISHMENT OF THE UNITED STATES OFFICE FOR NATIVE

HAWAIIAN AFFAIRS.

(a) 

No comments are offered on subsection 4(a). 

 

(b) DUTIES OF THE OFFICE- The United States Office for Native Hawaiian Affairs shall--

(1) effectuate and coordinate the special trust relationship between the Native Hawaiian people and the United States through the Secretary, and with all other Federal agencies;

(2) upon the recognition of the Native Hawaiian government by the United States as provided for in section 7(d)(2) of this Act, effectuate and coordinate the special trust relationship between the Native Hawaiian government and the United States through the Secretary, and with all other Federal agencies;

(3) fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian people by providing timely notice to, and consulting with the Native Hawaiian people prior to taking any actions that may affect traditional or current Native Hawaiian practices and matters that may have the potential to significantly or uniquely affect Native Hawaiian resources, rights, or lands, and upon the recognition of the Native Hawaiian government as provided for in section 7(d)(2) of this Act, fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian government by providing timely notice to, and consulting with the Native Hawaiian people and the Native Hawaiian government prior to taking any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands; 

Comment: As noted in the Comment to Definition (8) above, the bill defines "Native Hawaiian government" as "the citizens of the government of the Native Hawaiian 

people" rather than the organization formed by those citizens to carry out the legislative or executive functions of government. This will surely make the consultation process described in this section extremely complex, because it calls into doubt the normal assumption that a governmental agency speaks for the governed.
 

Since there are large numbers of persons who could claim to be "Native Hawaiian" and who could each claim consultative entitlements, consultation on even simple matters could easily become unworkable. The reference in the last sentence above to "consulting with the Native Hawaiian people and the Native Hawaiian government" further complicates the issue, since the "Native Hawaiian government" consists by definition of all citizens of the Native Hawaiian government, and thus the term "the Native Hawaiian people" must have some other, probably broader, meaning, perhaps encompassing not only those "enrolled" in the "government" but also persons of Hawaiian ancestry who might decline to become citizens of the "government". If persons outside the "recognized" "government" are given rights by this bill, it will be difficult to argue that such rights are not based on race rather than a "political" relationship, since the "political" relationship would arguably have been defined through the recognition of, and subsumed in, the "Native Hawaiian government".  

This section also states that consultation must occur prior to the taking of actions "that may affect traditional or current Native Hawaiian practices". The bill provides no definition of "traditional or current Native Hawaiian practices", but if the term is broadly interpreted it could extend to a very wide range of activities undertaken from time to time by any person within the bill's racial definition of "Native Hawaiian". That could logically include the entire range of human behavior from eating breakfast to piloting an aircraft to harvesting marine resources to growing or using illegal drugs, since each of these "practices" is engaged in by some Native Hawaiians (as well as by some persons of other races). There is no suggestion that the phrase "traditional or current Native Hawaiian practices" applies only to activities engaged in by all Native Hawaiians, most Native Hawaiians or even a majority of Native Hawaiians, and of course, even making such evaluations concerning the "practices" of roughly 200,000 individuals defined solely by race would be virtually impossible. Many Federal agencies routinely take actions, including law enforcement, without prior consultation with potentially affected individuals, but Section 6 of this bill could be construed to require such consultation when one or more persons of Hawaiian ancestry might claim that a "current practice" of that person or those persons would be affected.  

The section further requires consultation on matters that may "significantly or uniquely affect Native Hawaiian resources, rights or lands". It is not at all clear what the term "Native Hawaiian resources, rights or lands" refers to; specifically:  

a. There are currently no lands or other property which could be characterized as "Native Hawaiian", except perhaps lands or property owned individually by persons of Hawaiian ancestry. The assets and resources of the State of Hawaii Department of Hawaiian Home Lands and of the state Office of Hawaiian Affairs are state property, designated by the state for the betterment of native Hawaiians and Hawaiians, but they are not in any sense the property of all or any Native Hawaiian individuals, or of native Hawaiians or Native Hawaiians as a group. Cf. Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044 (2000); see also the Comment "Ceded Lands" to Finding 18 above and authorities cited therein. Although some Hawaiians claim that the ceded lands are the property or patrimony of "Native Hawaiians", careful legal and historical research shows that these claims are baseless. Id.  

b. It may logically be inferred that the term "Native Hawaiian resources, rights or lands" means "resources, rights or lands of the Native Hawaiian government", but it is arguably consistent with the bill's language to interpret the term to apply to the "resources, rights or lands" of any person with a precontact Hawaiian ancestor. In this latter case, any action with a significant effect on any property or right of any "Native Hawaiian"--such as placing a tax lien on a Native Hawaiian's bank account, condemning a utility right-of-way over a parcel in which a Native Hawaiian has an interest or even placing a Native Hawaiian under arrest--would require prior consultation not only with the individual affected, but with "the Native Hawaiian people and the Native Hawaiian government". This would place an extraordinarily heavy burden on the affected agencies, to the detriment of those who depend on timely and efficient agency action.  

Given these ambiguities, the bill, if enacted at all, should be amended to provide some clear definition of precisely what is and is not required in the way of consultation. 

 

Subsections 4(b)(4) through 4(b)(7).

Subsection 4(c). 

No comments are offered on subsections 4(b)(4) through 4(b)(7) or on subsection 4(c). 

 

SEC. 5. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE. 

No comments are offered on Section 5 of the bill. 

 

SEC. 6. NATIVE HAWAIIAN INTERAGENCY TASK FORCE.

(a) - (d) 

No comments are offered on subsections 6(a) through 6(d) of the bill. 

 

(e) DUTIES- The responsibilities of the Task Force shall be--

(1) the coordination of Federal policies that affect Native Hawaiians or actions by any agency or agencies of the Federal Government which may significantly or uniquely impact on Native Hawaiian resources, rights, or lands;

(2) to assure that each Federal agency develops a policy on consultation with the Native Hawaiian people, and upon recognition of the Native Hawaiian government by the United States as provided in section 7(d)(2) of this Act, consultation with the Native Hawaiian government; and

Comment: As noted in the Comment to Definition (8) above, the bill defines "Native Hawaiian government" as "the citizens of the government of the Native Hawaiian people" rather than the legislative or executive entities formed by those citizens to carry out the functions of government. This may make the "coordination" and "consultation" processes referred to in this section impossibly complex, because it implies that consultation must occur with all members of the new entity, none of whom would necessarily be bound by commitments of the duly chosen representatives of those citizens.  

 

SEC. 7. PROCESS FOR THE DEVELOPMENT OF A ROLL FOR THE ORGANIZATION OF A NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL, FOR THE ORGANIZATION OF A NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL AND A NATIVE HAWAIIAN GOVERNMENT, AND FOR THE RECOGNITION OF THE NATIVE HAWAIIAN GOVERNMENT.

(a) ROLL-

(1) PREPARATION OF ROLL- The United States Office for Native Hawaiian Affairs shall assist the adult members of the Native Hawaiian community who wish to participate in the reorganization of a Native Hawaiian government in preparing a roll for the purpose of the organization of a Native Hawaiian Interim Governing Council. The roll shall include the names of the--

(A) adult members of the Native Hawaiian community who wish to become citizens of a Native Hawaiian government and who are--

(i) the lineal descendants of the aboriginal, indigenous, native people who resided in the islands that now comprise the State of Hawaii on or before January 1, 1893, and who occupied and exercised sovereignty in the Hawaiian archipelago; or

(ii) Native Hawaiians who were eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act (42 Stat. 108, chapter 42) or their lineal descendants; and

(B) the children of the adult members listed on the roll prepared under this subsection.

(2) CERTIFICATION AND SUBMISSION-

(A) COMMISSION-

(i) IN GENERAL- There is authorized to be established a Commission to be composed of 9 members for the purpose of certifying that the adult members of the Native Hawaiian community on the roll meet the definition of Native Hawaiian, as defined in section 2(7)(A) of this Act.

(ii) MEMBERSHIP-

(I) APPOINTMENT- The Secretary shall appoint the members of the Commission in accordance with subclause (II). Any vacancy on the Commission shall not affect its powers and shall be filled in the same manner as the original appointment.

(II) REQUIREMENTS- The members of the Commission shall be Native Hawaiian, as defined in section 2(7)(A) of this Act, and shall have expertise in the certification of Native Hawaiian ancestry.

(III) CONGRESSIONAL SUBMISSION OF SUGGESTED CANDIDATES- In appointing members of the Commission, the Secretary may choose such members from among--

(aa) five suggested candidates submitted by the Majority Leader of the Senate and the Minority Leader of the Senate from a list of candidates provided to such leaders by the Chairman and Vice Chairman of the Committee on Indian Affairs of the Senate; and

(bb) four suggested candidates submitted by the Speaker of the House of Representatives and the Minority Leader of the House of Representatives from a list provided to the Speaker and the Minority Leader by the Chairman and Ranking member of the Committee on Resources of the House of Representatives.

(iii) EXPENSES- Each member of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Commission.

(B) CERTIFICATION- The Commission shall certify that the individuals listed on the roll developed under the authority of this subsection are Native Hawaiians, as defined in section 2(7)(A) of this Act.

(3) SECRETARY-

(A) CERTIFICATION- The Secretary shall review the Commission's certification of the membership roll and determine whether it is consistent with applicable Federal law, including the special trust relationship between the United States and the indigenous, native people of the United States.

(B) PUBLICATION- Upon making the determination authorized in subparagraph (A), the Secretary shall publish a final roll.

(C) APPEAL-

(i) ESTABLISHMENT OF MECHANISM- The Secretary is authorized to establish a mechanism for an appeal of the Commission's determination as it concerns--

(I) the exclusion of the name of a person who meets the definition of Native Hawaiian, as defined in section 2(7)(A) of this Act, from the roll; or

(II) a challenge to the inclusion of the name of a person on the roll on the grounds that the person does not meet the definition of Native Hawaiian, as so defined.

(ii) PUBLICATION; UPDATE- The Secretary shall publish the final roll while appeals are pending, and shall update the final roll and the publication of the final roll upon the final disposition of any appeal.

(D) FAILURE TO ACT- If the Secretary fails to make the certification authorized in subparagraph (A) within 90 days of the date that the Commission submits the membership roll to the Secretary, the certification shall be deemed to have been made, and the Commission shall publish the final roll.

(4) EFFECT OF PUBLICATION- The publication of the final roll shall serve as the basis for the eligibility of adult members listed on the roll to participate in all referenda and elections associated with the organization of a Native Hawaiian Interim Governing Council and the Native Hawaiian government. 

Comment: In Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044, (2000) the U. S. Supreme Court, in declaring unconstitutional a State of Hawai'i law restricting the franchise for certain statewide elections to "Hawaiians" defined by ancestry in a manner essentially identical to the definition of "Native Hawaiian" in S. 81, condemned discrimination on grounds of ancestry as follows: 

Id. at 517, 120 S.Ct. at 1057. 

It would be difficult to imagine a more thoroughgoing "ancestral inquiry" than that proposed in the foregoing section of this bill, or one more likely to produce the very social ills described in the quoted section from Rice. Through this process, Hawai'i's citizens will be formally and officially segregated by race, with some to be accorded special political privileges and some to be denied them. Perhaps more perniciously, this section draws the Secretary of the Interior and the Congress into this racial inquisition through the appointment of the members of the Commission, and for the Secretary, through the oversight of the process and the publication of the final Roll.  

 

(b) RECOGNITION OF RIGHTS- The right of the Native Hawaiian people to organize for their common welfare and to adopt appropriate organic governing documents is hereby recognized by the United States. 

Comment: On its face, this statement is unobjectionable, since it would apply to any lawful group which desired to organize for its common welfare and develop its individual charter and organizational structure. However, to the extent that this statement might imply that Native Hawaiians, as a racial group, have any "right" to special privileges because of race other than those which would pass the test of strict scrutiny, Congress' "recognition" of that "right" is, for the reasons stated throughout this document, inappropriate. 

 

(c) ORGANIZATION OF THE NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL- 

Comment: No comments are offered on subsection 7(c), except to note that the entire section preserves the "explicit tie to race" found objectionable in Rice v. Cayetano, and shares the constitutional infirmity of the bill as a whole. 

 

(d) RECOGNITION OF THE NATIVE HAWAIIAN GOVERNMENT-

(1) PROCESS FOR RECOGNITION-

(A) SUBMITTAL OF ORGANIC GOVERNING DOCUMENTS- The duly elected officers of the Native Hawaiian government shall submit the organic governing documents of the Native Hawaiian government to the Secretary.

(B) CERTIFICATIONS- Within 90 days of the date that the duly elected officers of the Native Hawaiian government submit the organic governing documents to the Secretary, the Secretary shall certify that the organic governing documents--

(i) were adopted by a majority vote of the adult members listed on the roll prepared under the authority of subsection (a);

(ii) are consistent with applicable Federal law and the special trust relationship between the United States and the indigenous native people of the United States;

(iii) provide for the exercise of those governmental authorities that are recognized by the United States as the powers and authorities that are exercised by other governments representing the indigenous, native people of the United States;

(iv) provide for the protection of the civil rights of the citizens of the Native Hawaiian government and all persons subject to the authority of the Native Hawaiian government, and to assure that the Native Hawaiian government exercises its authority consistent with the requirements of section 202 of the Act of April 11, 1968 (25 U.S.C. 1302);

(v) prevent the sale, disposition, lease, or encumbrance of lands, interests in lands, or other assets of the Native Hawaiian government without the consent of the Native Hawaiian government;

(vi) establish the criteria for citizenship in the Native Hawaiian government; and

(vii) provide authority for the Native Hawaiian government to negotiate with Federal, State, and local governments, and other entities.

(C) FAILURE TO ACT- If the Secretary fails to act within 90 days of the date that the duly elected officers of the Native Hawaiian government submitted the organic governing documents of the Native Hawaiian government to the Secretary, the certifications authorized in subparagraph (B) shall be deemed to have been made. 

Comment. Section 7(d)(1)(C) provides for a "default" DoI approval of the Native 

Hawaiian government's organic documents (which, among other things, will define 

the governmental authorities of the entity; its authority to negotiate with Federal, state and local governments; the protection of the civil rights of its members, and the criteria for citizenship in the entity) by failure to act on these documents within 90 days of the date they are submitted for approval. 
 

This default approval could result in much mischief if these documents commit the U. S. to a relationship which is unreasonably burdensome or which is not in fact consistent with law.  If the bill appears likely to pass, it should be amended to remove this "default" approval. It might also be wise, in view of the bill's imposition of requirements for Federal agency consultation with the new entity, for all Federal agencies to be afforded a statutory opportunity to examine and comment on the organic documents so that potential conflicts and difficulties could be ascertained and resolved before the documents are approved. 

 

SEC. 8. AUTHORIZATION OF APPROPRIATIONS. 

Comment: No comment is provided on Section 8 of the bill. 

 

SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS. 

(a) REAFFIRMATION- The delegation by the United States of authority to the State of Hawaii to address the conditions of Native Hawaiians contained in the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union' approved March 18, 1959 (Public Law 86-3; 73 Stat. 5) is hereby reaffirmed. 

Comment: As noted in the Comments to Findings 8 through 10, 20 and 21, if there was any delegation of authority to the State of Hawai'i in the cited statute, it concerned only "native Hawaiians" of 50% or greater Hawaiian "blood", not "Native Hawaiians" as defined in this bill. The constitutionality of any such delegation, like the constitutionality of all Congressional acts singling out either the racial group of "Native Hawaiians" or the racial group of "native Hawaiians" for special treatment, is cast into doubt by Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044 (2000). 

 

(b) NEGOTIATIONS- Upon the Federal recognition of the Native Hawaiian government pursuant to section 7(d)(2) of this Act, the United States is authorized to negotiate and enter into an agreement with the State of Hawaii and the Native Hawaiian government regarding the transfer of lands, resources, and assets dedicated to Native Hawaiian use under existing law as in effect on the date of enactment of this Act to the Native Hawaiian government. 

Comment: The "land, resources, and assets dedicated to Native Hawaiian use under existing law" are the property of all the citizens of Hawai'i, held in trust by the State. Any negotiation for their "transfer" to the Native Hawaiian Government or any other entity would require the consent of the citizens of the state. It should be expected that this consent would not likely be obtained without the payment of fair compensation. 

 

SEC. 10. DISCLAIMER.

SEC. 11. REGULATIONS.

SEC. 12. SEVERABILITY. 

Comment: No comments are provided on these sections of the bill. 

 

 

 

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1 Even the meaningfulness of racial categories and statistics has come into question. In his introduction to Eleanor Nordyke's comprehensive study of Hawai'i's various ethnic groups, Robert C. Schmitt, Hawai'i's former State Statistician in what was then known as the Department of Business and Economic Development, noted an "erosion in the availability, quality, and meaningfulness of some of our most important [data] series." He observed: 

Robert C. Schmitt, Introduction to Eleanor Nordyke, The Peopling of Hawai'i xvi-xvii (1989). (Bolding added.)



2 Adarand v. Pena, 515 U.S. 200, 239, 115 S.Ct. 2097, 2118-19 (SCALIA, J., concurring). Justice Scalia stated:  



3 The following discussion on sovereignty under the Kingdom of Hawai'i is taken in substantial part from Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai'i, 20 U. Haw. Law Rev. 99, 152-53 (1998).



4 It might be noted that the excluded group may be significant; many native inhabitants of the Hawaiian Islands departed before 1893. In her work on Hawaii's ethnic groups, Eleanor Nordyke points out: 

Eleanor Nordyke, The Peopling of Hawai'i 22 (1989).





(c) Copyright 2001 Paul M. Sullivan. All rights reserved
E-mail: sullivanp003@hawaii.rr.com
P.O. Box 30014
Honolulu, HI 96820


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