(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved

The Native Hawaiian Healthcare Act was introduced in both the Senate and the House for the 107th Congress. In the Senate, it is bill number S.87. In the House, it is bill number H.R.562. In the previous 106th Congress, this bill was S.1929; but it did not pass. The new version of the bill is virtually the same as the one that did not pass in the previous Congress. This bill would provide federal funding for healthcare for all racially-defined kanaka maoli (native Hawaiians), whether they are needy or not, while no such funding is provided for even the neediest citizens of Hawai'i of American, Chinese, European, Filipino, Japanese, or other ancestries (unless they happen to have at least one drop of kanaka maoli blood). In addition to providing an entitlement based on race rather than need, the bill would also give kanaka maoli culturally-specific wellness care that is not available to other ethnic groups under most public or private insurance policies (even very expensive ones). On January 21, 2000 Senators Inouye and Akaka held hearings on this bill in Honolulu at which only kanaka maoli and their supporters were allowed to testify.

Karen Blakeman, a reporter for the Honolulu Advertiser who attended the hearing, published an article on January 22, 2000 including the following: "Federally financed health care for Native Hawaiians should be an entitlement, similar to Social Security or Medicare, witnesses told Sen. Dan Inouye yesterday during a hearing on the reauthorization of the Native Hawaiian Health Care Improvement Act. Inouye agreed and said he wants the act to cover all Native Hawaiians, rather than only those without health insurance. An entitlement would have the advantage of almost guaranteed financing and would take precedence over other federal programs, said Patricia Zell, minority staff director and primary council for the U.S. Senate Committee on Indian Affair “So no matter what — even if we had a missile crisis — this program would be funded,” Zell said. ... Zell said Inouye is working to incorporate other federally financed health programs into the act, which could allow Native Hawaiians to use military or veterans hospitals and clinics. ... Existing financing under the health care act is about $3.5 million annually. With proposed improvements, the act could more than double in cost, Zell said. ... Improving the health of Native Hawaiians also will require a broader approach than traditional Western medicine allows, witnesses said. Native Hawaiians need not only better medical care, but programs that address wellness and include cultural healing practices, said Kawahine Kamakea-Ohelo, executive director of the Waimanalo Health Center. Witnesses also emphasized a need to address behavioral and environmental programs, and to improve data collection."

This bill is typical of numerous racial entitlement programs for kanaka maoli, funded by the Federal and State governments. Almost unnoticed by the national public and even the citizens of Hawai'i, the State of Hawai'i has quietly become the only state in the U.S. to divide its population into two classes of people: a hereditary elite of kanaka maoli, who receive numerous special racial entitlements plus the benefits enjoyed by all citizens; and non-kanaka maoli, who have the privilege of paying taxes to support these entitlements. KM are fully assimilated into the general population, live side-by-side with non-KM, intermarry, have the same jobs and lifestyle, and mostly have only a small fraction of KM genetic heritage.

In addition to the fundamental unconstitutionality and unfairness of entitlement programs based on race without regard to need, there is language buried in the fine print of this bill which would put Congress on record as endorsing a special political status for kanaka maoli, based on a series of irrelevant, false, or distorted historical claims.

S1929 is one of three bills introduced by Senator Inouye in the Fall of 1999 to provide racial entitlements to kanaka maoli in the areas of housing (S225), education (S1767) and health (S1929). All three of these bills contained trojan-horse political recognition language buried in the fine print, similar to the language analyzed in the testimony below. Two powerful kanaka maoli organizations claim credit for writing this language: Ka Lahui, and OHA. They are trying to do an end-run around the U.S. Supreme Court.

The Rice v. Cayetano decision by the U.S. Supreme Court on February 23, 2000 ruled that the statewide election for trustees of the state Office of Hawaiian Affairs (OHA) can no longer be racially restricted to kanaka maoli alone. The ruling may also have further consequences that racial entitlement programs for kanaka maoli are unconstitutional. The State of Hawai'i has built a large entrenched bureaucracy supporting these entitlements, and OHA has assets of hundreds of millions of dollars which it wants to "protect" against being returned to the general fund of the State. In addition, the political power structure has concluded that it is helpful to the economy of Hawai'i to have large amounts of federal money pouring into Hawai'i, whatever the reason. One way to allow racial entitlement programs to continue even if the Supreme Court rules them unconstitutional is to declare that kanaka maoli have the status of an Indian tribe. Indian tribes can receive entitlement programs that do not need to pass the strict scrutiny test of the courts. Thus, the language in the three entitlement bills seeks to put Congress on record as recognizing that kanaka maoli have historical and legal status as an Indian tribe. Such language is not only false and distorted, it is also dangerous to the sovereignty of a unified State of Hawai'i under the United States of America It is dangerous to the Aloha Spirit because of the divisiveness of establishing a privileged hereditary elite based on race. Although the decision in Rice v. Cayetano directly affects only the issue of voting rights in elections for OHA trustees, the Court specifically recognized that the OHA laws set up a racial classification; and other Court decisions have stated that governmental programs based on racial classifications are permissible only if they pass strict scrutiny by being narrowly tailored to meet a compelling governmental interest, such as remedies for past government discrimination. Thus, the federal racial entitlement bills might be found unconstitutional.

The following testimony was submitted on March 11, 2000 to the U.S. Senate committee in which the bill S1929 was introduced. This testimony provides a point-by-point rebuttal to the 29 false or twisted historical or legal claims made in the "Findings" preamble to the bill, that were intended to provide justification for the health care bill as well as to put Congress on record in support of special political status for a racial group. This testimony was submitted by H. William Burgess and Sandra Puanani Burgess. Kenneth R. Conklin (author of this website) helped write it, along with others who prefer to remain unidentified.

Readers of this website should consider the specific claims and rebuttals as interesting issues to think about on their own merits, and also as typical examples of how the Hawaiian sovereignty activists often make false and misleading statements and try to get governmental agencies to endorse such nonsense by "slipping it past them" in the "fine print." The bill may be passed or defeated, and the language analyzed below may remain the same or may be changed in subsequent drafts of the bill. But the arguments presented in the rebuttal will always remain valid, and the attempt to incorporate false and misleading statements into federal legislation will always remain exposed here.

H. WILLIAM BURGESS 2299-C Round Top Drive Honolulu, Hawaii 96822 Phone: (808) 947-3234 Fax: (808) 947-5822 Email: hwburgess@msn.com

March 21, 2000

The Honorable Paul David Wellstone United States Senate 136 Hart Senate Office Building Washington DC 20510

Dear Senator Wellstone: I recently forwarded to the Senate Committee on Indian Affairs my written testimony on S. 1929, "The Native Hawaiian Health Care Improvement Act Reauthorization of 1999".

On February 23, 2000, shortly after the deadline for submission of testimony on the above bill, the U. S. Supreme Court handed down its decision in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000). In Rice, the U.S. Supreme Court struck down a State of Hawaii law that limited voting in statewide elections for the Office of Hawaiian Affairs to persons descended from the pre-1778 inhabitants of the Hawaiian Islands.

The Rice decision is directly pertinent to the committee's deliberations on S. 1929; for example, the court in Rice expressly held that the definition of "Hawaiian" used in Hawaii's law (which closely parallels the definition of "Native Hawaiian" in S. 1929) was "racial" and that the state's "Hawaiians-only" election for trustees of the state's Office of Hawaiian Affairs violated the Fifteenth Amendment's prohibition against limitation of the franchise based on "race". The court also questioned the constitutional authority of Congress to treat the racial group consisting of "Native Hawaiians" as it does an Indian tribe. Read as a whole, the Rice decision strongly implies that all legislation favoring Native Hawaiians would, if challenged, be subject to the test of strict scrutiny applicable to other racial preferences.

For these reasons, the Senate Committee on Indian Affairs should take no action on S. 1929 until the impact of Rice v. Cayetano can be evaluated and the public (all the public, not just those favoring the bill as happened at the last hearing in Hawaii) can be given full opportunity, both in Washington and in Hawaii, for additional oral and written testimony. I have sent to the committee a revised version of my earlier testimony which adds at appropriate places a discussion of the impact of Rice and incorporates some technical corrections and elaborations, and I am enclosing a copy for your personal consideration. I again urge you to take a serious and skeptical look at this bill before acting on it. Its racial aspect wipes out any merit which it might otherwise have. It holds a pernicious promise of aggravating an already serious racial polarization of our state, which for many years was a model of racial integration and harmony. It is almost certainly unconstitutional. It should not become law.


H. William Burgess

Section by section analysis and responses to Section 2(a), "General Findings", of S. 1929, The Native Hawaiian Health Care Improvement Act Reauthorization of 1999

As a preliminary matter it should be noted that the need for these "General Findings" is not clear. The statements about Hawaiian history and past Congressional actions have no obvious relevance to medical care. Instead, they appear to be intended to resolve, by Congressional fiat, fundamental questions about the legal and political status of persons of Hawaiian ancestry which are matters of intense debate.

The recent U. S. Supreme Court decision in the case of Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000) answered some of these questions and hinted strongly at answers to others. Its most dramatic holding was that the definitions of "native Hawaiian" (50% or more Hawaiian "blood") and "Hawaiian" (any degree of Hawaiian "blood") in Hawaii's state law are "racial", and that the voting restriction there in question. which limited the franchise in a statewide election for trustees of the Office of Hawaiian Affairs to "Hawaiians", violated the Fifteenth Amendment's command that the right to vote not be denied or abridged on account of race. The definitions of "native Hawaiian" and "Native Hawaiian" which appear in various Federal statutes are essentially identical to state law definitions of "native Hawaiian" and "Hawaiian", respectively. The court in Rice also cast doubt upon the authority of Congress to treat native Hawaiians as it does the Indian tribes. Many of the "findings" proposed in this bill must be revised or deleted in light of the Rice decision.

As to the remaining "findings", their inclusion in this bill might be harmless if they did not address sensitive and debatable matters, but they do, and they are demonstrably incorrect in many instances. In light of this, they should not be part of this bill unless there are to be full and open hearings where their accuracy and their relevance to this bill can be tested. Because their factual foundations are not set out, it is difficult to respond to these "findings" in detail. I have therefore simply outlined where there are conflicting views, and identified reference materials which illustrate the conflicts. I urge the committee to follow up on these points, and undertake a careful course of hearings and analysis to lay the issues to rest.


"Native Hawaiians begin their story with the Kumulipo which details the creation and inter-relationship of all things, including their evolvement as healthy and well people."


The relevance of this finding is not explained, but the statement is a bit disingenuous. Without detracting from the historical, literary and religious significance of the Kumulipo, it should be noted that it is a family chant, believed to have been composed around 1700, which served a genealogical and, at times, a political purpose. MARTHA BECKWITH, HAWAIIAN MYTHOLOGY (1970), pp. 310-313. King Kalakaua (1874-1891), for example, used it to bolster his claim to the throne. MARTHA BECKWITH, THE KUMULIPO (1972), pp. 29, 153. Its citation here suggests that its political utility is still recognized.


"Native Hawaiians are a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago and have a distinct society organized almost 2,000 years ago."


This finding is factually incorrect in several respects.

2a. "A distinct people". If "people" is used in its usual sense of "a body of persons that are united by a common culture, tradition, or sense of kinship . . . and that typically have common language, institutions and beliefs" (Webster's Third New International Dictionary (Unabridged) (1993), p. 1673), then 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 Hawaii 21 (1982).

2b. "A unique people". Such integration likewise counts against the claims of being "unique" as a group (in any other sense than the racial one), except insofar as every group within this country can claim "uniqueness". Of course, nothing in this finding 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.

2c. "Indigenous". While the ancestors of today's "Native Hawaiians" might have claimed to be the "indigenous peoples" of the Hawaiian Islands, their descendants today, extensively intermarried and integrated with all the other people of Hawaii for many generations, can hardly claim to be "indigenous". See ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989) 28-42. See also the comments to Finding 28 below.

2d. "Historical continuity to the original inhabitants". If "historical continuity" is intended to imply that modern-day Hawaiians maintain the societal and cultural forms of the "original" inhabitants of the islands, then this "finding" is incomplete and inaccurate.

2d1. Precontact Hawaiians had no written history, and there is debate as to who the "original inhabitants of the Hawaiian archipelago" 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 from the Marquesas Islands, Tahiti and possibly Samoa, beginning sometime between the birth of Christ and roughly 1000 A.D.

2d2. The society of the "original inhabitants" 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 "society" of 1778 was very different from the precontact "society" of the earlier immigrants.

2d3. After Western contact, radical change and social discontinuity were the order of the day. 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).

2d4. One other vital influence on Hawaiian history since Western contact was an early and continued practice of intermarriage 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 "historical continuities" of Hawaiians and new arrivals alike. Thus from the perspective of history we see that as the "continuity" of Hawaiians to the old culture waned, their "continuity" to the varied cultures of the Pacific and the world expanded and intensified.

2d5. Indeed, the asserted "continuity" of all modern-day Native Hawaiians to the "original inhabitants of the Hawaiian archipelago" is simply 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, perhaps, that pride is more focused than in the thousands of Hawaiians whose forebears came from varied regions of Europe, Asia and America and whose ancestors thus represent most of the great civilizations of the earth. It is, however, a universal characteristic of humanity. As it exists in Hawaii, it carries no political consequence and justifies no special treatment.

2e. "Native Hawaiians . . . have a distinct society organized almost 2000 years ago". This is simply not true. Whatever form or forms the precontact Hawaiian "society" took before Captain Cook arrived in 1778, it cannot be said that it persists today as it existed either at Western contact or at any earlier time.

2e1. Today's Native Hawaiians as defined by this bill do not "have" a "distinct society organized almost 2,000 years ago". As George Kanahele points out, the "society" of today's Native Hawaiians, as they are defined in this bill, is the "society" 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 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 Hawaii, 20 U.Haw. Law Rev. 99 (1998).

2e2. "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 as a whole; as Mr. Kanahele correctly observes, 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.

2e3. Indeed, the use of the term "they" 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. If Mr. Kanahele is correct, then to misquote Gertrude Stein, there is no "they" there--no group in the real world with any definition other than the racial or ancestral one.

2f. If the committee undertakes a full and open exploration of this issue, it is likely to find 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 of this remarkable nation. The committee would therefore find, consistent with Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995), that each "Native Hawaiian" deserves the same access to medical care, and the same governmental assistance when necessary, as any American of any race--without regard to race except as it might bear on diagnosis and treatment of specific problems in specific individuals--but that they do not deserve any more.


"Native Hawaiians have never directly relinquished to the United States their claims to their inherent sovereignty as a people or over their national lands, either through their monarchy or through a plebiscite or referendum."


This finding is both factually and legally inaccurate.

3a. "Inherent Sovereignty". Under the law of the Kingdom of Hawaii, the "people" had no inherent sovereignty. 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 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 (1953), p. 132):

"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." LILIUOKALANI, HAWAII'S STORY BY HAWAII'S QUEEN (1898), p. 21

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

Of course, whether or not "Native Hawaiians" possessed "sovereignty" of any sort over a hundred years ago would appear to have little to do with whether they need special racially-restricted health care today, and if so, whether the U.S. Constitution permits such solicitude.

3b. "National lands". The meaning of the term "national lands" is unclear. If the reference is 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--then the proposed finding is inaccurate. These 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 Hawaii 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.

Many of the circumstances surrounding the changes of government in Hawaii from 1893 through 1898 are still matters of historical debate. The U.S. Supreme Court reviewed these events briefly in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I. Among the unquestioned facts, however, is that in 1893, Queen Liliuokalani, the last Hawaiian monarch, surrendered her authority as queen following a bloodless revolution (which the U.S. Supreme Court characterized as an "intervention" by the group which supplanted her). Rice v. Cayetano, slip op. at 8. She was succeeded by a provisional government and eventually an independent republic, and this independent republic ceded the sovereignty and property of Hawaii to the U.S. in 1898, a cession which was accomplished, like the revolution, without violence and with the evident acquiescence of the populace. In 1959, a proposal that Hawaii become a state passed by a margin of seventeen to one. GAVAN DAWS, SHOAL OF TIME (1968), p. 391.

The references cited above reflect that during the years of the monarchy, many inhabitants of American, British and European extraction were full subjects of the kingdom and many of these held posts at the highest levels of the monarchy. The government was generally administered without regard to race or ancestry, and the public lands of the Kingdom were owned by the kingdom and administered for the benefit of all the kingdom's citizens, with neither special control nor special entitlements reserved for subjects of Hawaiian ancestry alone. Thus the "national lands" of the kingdom could not be said to be, in any respect, lands of Native Hawaiians alone. Even the lands which the monarch had reserved to himself in the great land division of 1848 had become, by 1865, lands of the kingdom set aside, under the supervision of a commission responsible to the legislature, as a resource for the maintenance of the monarch in what might be called his "official capacity", and not as his or her own private property. See generally Liliuokalani v. U.S., 45 Ct.Cl. 418 (1910); Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864).

There were no "national lands" either of the kingdom or of "Native Hawaiians" other than the crown and government lands referred to above. For the above reasons, this finding should be deleted from the bill and should play no part in Congress' deliberations or action.


"The health and well-being of Native Hawaiians are intrinsically tied to their deep feelings and attachment to their lands and seas."


This is a peculiar statement to apply without qualification to over 200,000 Americans, most with extensively mixed racial and ethnic background, pursuing widely varied lifestyles and livelihoods and living around the world. Assuming that this finding could have any relevance to the purpose and content of this legislation, something more to show its truth should be added. It probably states too much and too little; too much, because the statement is likely true for all persons of all races and locations who live an agrarian existence (which is, however, not the case for most Native Hawaiians), and too little, because such universal statements are of little value in fashioning either treatment regimens for individuals or health care policy for large or small populations with special needs. Whatever the case, Congress should demand proof of such a statement before making it a "finding".


"The long-range economic and social changes in Hawaii over the 19th and early 20th centuries have been devastating to the health and well-being of Native Hawaiians."


This statement is factually inaccurate in large part, and is misleading as a whole.

It must be noted first that many of the dramatic social changes of the nineteenth century were originated by the Hawaiian royalty, not forced upon them by foreigners. In 1819 shortly after Kamehameha's death, his widow Ka'ahumanu, then the most powerful of the ali'i nui (high chiefs) , said, "We intend to eat pork and bananas and coconuts and to live as the white people do." Supported by her powerful Maui kinsmen, she "broke the kapu", the strictures of the old religion. Under her direction, the young King, Liholiho (Kamehameha II) ordered destruction of the heiau (temples) and burning of the wooden idols.

The next year, 1820, the first company of American missionaries arrived, and soon thereafter Ka'ahumanu took charge of Christianity and made it the official state religion. Christianity displaced the Hawaiian religion and became the new order. Those who did not convert were evicted from their land. Both the British and American consuls protested that Ka'ahumanu's new kapu was a threat to the whaling fleet and bad for business. Ka'ahumanu replied, "We do not rule there [in America or Britain], but these islands are ours, and we wish to obey the commands of God." LILIKALA KAME'ELEIHIWA, NATIVE LAND AND FOREIGN DESIRES (1992), pp. 82, 154-157.

The chiefs for the most part adopted western economic values and were eager to acquire western skills and goods and technology. Indeed, the chiefess Kapi'olani complained to a gratified Lahaina missionary in 1825 that when among her fellow chiefs "I hear so much said about money, and cloth, and land, and ships, and bargains, that it makes me sick..."

The King and chiefs worked with foreign nations, welcomed the westerners and their laws and forms of government and incorporated them into Hawaii's government. In 1845 Kauikeaouli (Kamehameha III) explained to S.M. Kamakau why he dismissed natives from government offices and appointed foreigners: "My native helpers do not understand the laws of the great countries who are working with us."

William Little Lee, who had studied law at Harvard under Supreme Court Justice Joseph Story, arrived in Honolulu in 1846 with Charles Reed Bishop. At the request of the King and chiefs, Lee drafted many of the documents which installed a stable democratic American form of government. The constitution of 1852 as approved by the King and chiefs established a strong role for the popularly elected House of Representatives but was not as democratic as Lee had proposed because the Chiefs (whose maxim was "Kanakas were made for the Ali'i") had become jealous of the growing power of the people.

Unquestionably, the time between the first Western contact and the latter part of the nineteenth century was, from many standpoints including that of health, disastrous for Hawaiians. Precontact Hawaiians had reportedly suffered at least one devastating plague before the arrival of Westerners in 1778 (DAVID MALO, HAWAIIAN ANTIQUITIES 245 (Nathaniel Emerson, trans., 1951), but English, European and American visitors in the 18th and 19th centuries brought diseases to which the natives had no immunity and which dramatically reduced the native population. They also brought ideas and concepts which resulted in extensive social, political, religious and cultural changes for Native Hawaiians. ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989).

It cannot fairly be said, however, that the changes in the late 19th and the 20th centuries had similar effects. Intermarriage among all Hawaii's ethnic groups began immediately after Western contact and has always been extensively practiced, and while the number of "pure" Hawaiians has continued to decline to this day, "Native Hawaiians", as defined in this bill to include part-Hawaiians, have increased in numbers since about 1900 and life expectancy has increased dramatically. See id. at 38-42; LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960).

As Nordyke puts it: "Hawaiians in Hawai'i in the last quarter of the twentieth century are a vibrant, proud, rapidly growing, young, heterogeneous group, with only 4.5 percent at age 65 and over. . . . Hawaiian resurgence is observed in politics, culture, education, and economics, with leading roles taken by highly educated native people." ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989) 40.

This picture, drawn by a respected and scholarly author, differs from that drawn by the preamble to this bill. The difference needs to be explored with care before this proposed finding is adopted.


"The Native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions. In referring to themselves, Native Hawaiians use the term `Kanaka Maoli', a term frequently used in the 19th century to describe the native people of Hawaii."


This section, like many others, has no evident relevance to the issue of Native Hawaiian health needs. It is also, as noted above, contradicted by scholarly opinion that Native Hawaiians, as defined in this statute, are a culturally, religiously, politically and socially diverse group, thoroughly integrated into the life of the state and nation, and that there is no unique or broadly-shared "Native Hawaiian" cultural identity and no unique and commonly-held set of "Native Hawaiian" spiritual and traditional beliefs, customs, practices, language, and social institutions.

The term "Kanaka Maoli", however, is disturbing because, like the term "Native Hawaiian", it is a term of racial differentiation. Whatever its use in the 19th century, it is used today in a purely racial sense to identify the same group which this legislation identifies as "Native Hawaiians". It should be used, if at all, only with sensitivity to that connotation of racial separateness.


"The constitution and statutes of the State of Hawaii-- '(A) acknowledge the distinct land rights of Native Hawaiian people as beneficiaries of the public lands trust; and

'(B) reaffirm and protect the unique right of the Native Hawaiian people to practice and perpetuate their cultural and religious customs, beliefs, practices, and language."


(7)(A): The "public land trust" referred to would appear to be the trust established by section 5(f) of the Hawaii Admission Act, although this should be made clear. Section 5(f) provides that the lands therein described shall be held by the state of Hawaii as a public trust, "to be managed and disposed of for one or more" of five specified purposes, of which the "betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act of 1920" is only one. The other permissible purposes are education, promoting farm and home ownership, making public improvements and providing land for public purposes. Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section II.

The "native Hawaiians" referred to in section 5(f) are only those of 50% or greater Hawaiian "blood", and they become "beneficiaries" of the trust under the "betterment" clause only if the state of Hawaii chooses to use some or all of the trust for that purpose. "Native Hawaiians" as defined in this bill who have less than 50% Hawaiian "blood" are beneficiaries of the public lands trust only to the same extent as all the other citizens of the state of Hawaii. No "land rights" are granted by section 5(f) to any specific segment of the populace, Native Hawaiian or otherwise.

(7)(B): The relevance of this finding to health care is not explained and is not apparent. The "unique right" of the Native Hawaiian people to practice and perpetuate their cultural and religious customs, beliefs, practices, and language is not at all settled in the law of the state of Hawai'i, and the state supreme court's description of such a "right" (albeit in dicta) raises grave constitutional questions. See Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998).


"At the time of the arrival of the first nonindigenous people in Hawaii in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient, subsistence social system based on communal land tenure with a sophisticated language, culture, and religion."


The relevance of this finding to health care is not explained and is not apparent. It might be noted that the land tenure was feudal rather than communal (see Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them, LAWS 1848, p. 41, reprinted in 2 REVISED LAWS OF HAWAII (1925) 2124; Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998); Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I.) and the monarch, who ruled absolutely, had absolute power over the control and management of land. Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864).


"A unified monarchical government of the Hawaiian Islands was established in 1810 under Kamehameha I, the first King of Hawaii."


The relevance of this finding to health care is not explained and is not apparent.

In the interest of accuracy, it should be noted that Kamehameha I was the first king of the unified Hawaiian Islands. Prior to the unification of the islands, Kamehameha I had been king of the island of Hawaii, one of the Hawaiian Islands, but he was not the first "king" of that island; the island of Hawaii had kings and great ruling chiefs before Kamehameha I. ABRAHAM FORNANDER, ANCIENT HISTORY OF THE HAWAIIAN PEOPLE TO THE TIMES OF KAMEHAMEHA I, (Mutual Publishing 1996) (1880), pp. 64-67.


"Throughout the 19th century and until 1893, the United States--

'(A) recognized the independence of the Hawaiian Nation;

'(B) extended full and complete diplomatic recognition to the Hawaiian Government; and

'(C) entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875 and 1887."


The relevance of this finding to health care is not explained and is not apparent.

In the interest of completeness, it should be noted that such acknowledgment of Hawaii's national independence did not end in 1893. It continued after the termination of the monarchy up until the annexation of Hawaii to the United States in 1898, as evidenced by diplomatic recognition of the Provisional Government and the Republic.


"In 1893, John L. Stevens, the United States Minister assigned to the sovereign and independent Kingdom of Hawaii, conspired with a small group of non-Hawaiian residents of the Kingdom, including citizens of the United States, to overthrow the indigenous and lawful government of Hawaii."


The relevance of this finding to health care is not explained and is not apparent.

The circumstances surrounding the overthrow of the monarchy in 1893 are the subject of an extensive historiography. Perhaps the most objective description is found in 3 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM (1967), Chapters 18-21. A rather one-sided view appears in the so-called Apology Resolution, P.L. 103-150; a rejoinder and rebuttal to the views expressed in P.L. 103-150 appear in Chapter 10 of THURSTON TWIGG-SMITH, HAWAIIAN SOVEREIGNTY: DO THE FACTS MATTER? (1996).

The U.S. Supreme Court in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I, presented a succinct and neutral summary of this element of Hawaii's history which deserves careful review.

It should be noted that more than half of the Committee of Safety which brought about the replacement of the monarchy with a provisional government were native-born or naturalized subjects of the monarchy, and thus were "Hawaiians" in a widely-accepted meaning of that term (see Rice v. Cayetano, supra). All were residents of the kingdom and committed to its orderly government.


"In pursuance of that conspiracy, the United States Minister and the naval representative of the United States caused armed naval forces of the United States to invade the sovereign Hawaiian Nation in support of the overthrow of the indigenous and lawful Government of Hawaii and the United States Minister thereupon extended diplomatic recognition of a provisional government formed by the conspirators without the consent of the native people of Hawaii or the lawful Government of Hawaii in violation of treaties between the 2 nations and of international law."


The relevance of this finding to health care is not explained and is not apparent.

The "history" set out in this finding has been a subject of debate for over a hundred years. The references cited in the above comments on Finding (a)(11) should be consulted on this finding for both greater detail and greater accuracy.

A balanced summary appears in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I.

It should be noted that at the time of the 1893 revolution, the government of Hawaii was not "indigenous" (since the electorate as well as the legislature, the judiciary and the executive branches of government consisted in significant part of persons other than Native Hawaiians) and that in the eyes of the revolutionaries at least, Queen Liliuokalani's presence on the throne was not "lawful" since she had committed herself to the promulgation of a new constitution without complying with the procedures prescribed in the existing constitution. See WILLIAM ADAM RUSS, JR., THE HAWAIIAN REVOLUTION (1893-94) (1959), p. 81.

The removal of the queen was accomplished without bloodshed and with only token opposition. Whatever might have been the feelings in 1893 of the "native people of Hawaii" (who formed less than 40% of the population), those same "native people" were 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.


"In a message to Congress on December 18, 1893, then President Grover Cleveland reported fully and accurately on these illegal actions, and acknowledged that by these acts, described by the President as acts of war, the government of a peaceful and friendly people was overthrown, and the President concluded that a `substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people required that we should endeavor to repair'."


The relevance of this finding to health care is not explained and is not apparent.

It should be noted, however, that the whole issue of how the United States should respond to the events of 1893 was the subject of extraordinary and intense debate, both in Congress and in the American press, both immediately after the revolution and in 1898, when annexation was under consideration. See WILLIAM ADAM RUSS, JR., THE HAWAIIAN REPUBLIC (1894-98) (1961). Whatever else might be said about the decisions of Congress during this period, they exemplified the fullest and most vital expression of the democratic process. President Cleveland's opinion was only one of many, both for and against the revolutionaries, and his view did not prevail in the open, vigorous and exhaustive debate. That was, and is, in its fundamental character, the American way.


"Queen Lili`uokalani, the lawful monarch of Hawaii, and the Hawaiian Patriotic League, representing the aboriginal citizens of Hawaii, promptly petitioned the United States for redress of these wrongs and for restoration of the indigenous government of the Hawaiian nation, but this petition was not acted upon."


The relevance of this finding to health care is not explained and is not apparent.

President Grover Cleveland's early support for the queen's restoration waned after she declared to his representative that upon her restoration she would have the revolutionaries beheaded, and when the provisional government declined to step aside at the request of the President. Ultimately, he referred the matter to Congress.

Congress did not ignore the question, as this proposed finding implies. In fact, the Hawaiian revolution was the subject of two detailed reports which Congress carefully considered, one (the "Blount Report) by James H. Blount, who had been commissioned by President Cleveland shortly after the revolution to investigate the matter, and one (the "Morgan Report", S. Rep. 227, 53rd Cong., 2nd sess.) by the Senate Committee on Foreign Relations which conducted its own investigation upon receipt of President Cleveland's message. After intense debate, Congress passed resolutions warning all foreign nations that intervention in the political affairs of the islands would be considered an act unfriendly to the United States, but took no action to restore the monarchy. 3 KUYKENDALL, THE HAWAIIAN KINGDOM (1967), pp. 623-31, 642-47.


"Further, the United States has acknowledged the significance of these events and has apologized to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii with the participation of agents and citizens of the United States, and the resulting deprivation of the rights of Native Hawaiians to self-determination in legislation in 1993 (Public Law 103-150; 107 Stat. 1510)."


The relevance of this finding to health care is not explained and is not apparent.

The so-called Apology Resolution appears to have been adopted without careful examination of the purported "history" on which it was based, and the positions ill-advisedly taken in the statute's preamble provide no credible evidence to support the positions taken in this finding. 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, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I, acknowledged the existence of the Apology Resolution and pointedly ignored it as historical authority, preferring instead its own inquiry, based on more conventionally scholarly works. Id. at 2-10. 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."


"In 1898, the United States annexed Hawaii through the Newlands Resolution without the consent of or compensation to the indigenous people of Hawaii or their sovereign government who were thereby denied the mechanism for expression of their inherent sovereignty through self-government and self-determination, their lands and ocean resources."


: The relevance of this finding to health care is not explained and is not apparent.

The finding is misleading in a number of respects; suffice it to note only (1) that neither the monarchy nor the successor governments before annexation were either by, for or of persons of Hawaiian ancestry exclusively, and (2) that under the monarchy, persons of Hawaiian ancestry had no "inherent sovereignty". The population of the Hawaiian Islands at about the time of annexation was somewhere near 35% of Hawaiian ancestry, the remainder consisting of both citizens and long-term residents of Japanese, Chinese, American, British and other foreign ancestry. See ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989), pp. 178-179, Tab 3-1. The government was a republic conducted for all members of the populace. Five years earlier at the time of the overthrow of the monarchy, Hawaiians had formed only a slightly larger percentage of the population, and then, as at the time of annexation, the government was conducted for all the inhabitants of the kingdom. Hawaiians usually controlled the kingdom's legislature, but a major reason for this in the later years of the monarchy was that the constitution of the kingdom since 1887 had denied the franchise to Asians not born in the kingdom. See LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960), pp. 82-84; 3 KUYKENDALL, THE HAWAIIAN KINGDOM, 1874-1893 (1967) pp. 406-407. This became a matter of great concern to the government of Japan, which pressed both the Kingdom and the successor Provisional Government and Republic to give the Japanese living in the islands the right to vote. WILLIAM ADAM RUSS, JR., THE HAWAIIAN REVOLUTION (1893-94) (1959), pp. 161-162.

At and after annexation, the United States always treated Native Hawaiians as equals. This contrasts starkly with the treatment of Alaska Natives. Both Alaska and Hawaii became territories of the U.S. in the late 1800's and became states in 1959. But the 1867 treaty by which Russia ceded Alaska to the U.S. expressly provided that all inhabitants of the Alaska territory would be granted US citizenship "with the exception of uncivilized native tribes." Like other tribal Indians, Alaska Natives were not granted US citizenship until 1924.

In contrast, the Organic Act of 1900 granted full and immediate U.S. citizenship to "all persons who were citizens of the Republic of Hawaii" in 1898, including Hawaiians. Hawaiians not only enjoyed citizenship and the right to vote, but they were the dominant political group in Hawaii for at least several decades after annexation. Thus Hawaiians came into the union as citizens, not as members of a separate, quasi-sovereign Indian tribe.

In 1959, persons of Hawaiian ancestry joined with all other persons in Hawaii to vote overwhelmingly (17-1) for statehood. GAVAN DAWS, SHOAL OF TIME (1968), p. 391.

On the matter of "compensation" for the Crown and government lands which passed from the kingdom's government to the Provisional Government and thence to the Republic and the United States, it should be noted that the Newlands Resolution (30 Stat. 750) provided:

"The public debt of the Republic of Hawaii, lawfully existing at the date of the passage of this joint resolution, including the amounts due to depositors in the Hawaiian Postal Savings Bank, is hereby assumed by the Government of the United States; but the liability of the United States in this regard shall in no case exceed four million dollars. So long, however, as the existing Government and the present commercial relations of the Hawaiian Islands are continued as hereinbefore provided said Government shall continue to pay the interest on said debt."

The public debt of the Republic at the time of annexation in 1898 was $4,457,605. The public debt of the Kingdom at the time of the overthrow in January 1893 was approximately $3,417,000. See THOMAS G. THRUM, HAWAIIAN ALMANAC AND ANNUAL FOR 1900 (1900).

Thus, even if the ceded lands had been transferred outright to the United States, the citizens of Hawaii would have received substantial compensation (by way of assumption of its public debt).

However, the lands were not ceded outright. The Newlands Resolution required that the U.S. use the revenues and proceeds of the ceded lands, "except as regards such part thereof as may be used or occupied for the civil, military or naval purposes of the United States . . . solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." (At that time only about 26% of the inhabitants of the Hawaiian Islands were of Hawaiian ancestry.) The U.S. in 1900 turned over to the Territory of Hawaii the possession and control of over 1.4 million acres of the ceded lands. Those lands have remained in the possession, use and control of the government of Hawaii for the benefit of the citizens of Hawaii of all ancestries (with the arguable exception of the 200,000 or so acres reserved for leasing to "native Hawaiians" under the Hawaiian Homes Commission Act) continuously to the present.

Thus, the claim that the crown, government and public lands of Hawaii were ceded to the United States "without compensation" to the government of Hawaii is false.

The response and commentary to finding 3 above point out that Native Hawaiians do not and did not have any claim to the ceded lands or any right to "compensation" for their transfer to the United States.


"Through the Newlands Resolution and the 1900 Organic Act, the Congress received 1,750,000 acres of lands formerly owned by the Crown and Government of the Hawaiian Kingdom and exempted the lands from then existing public land laws of the United States by mandating that the revenue and proceeds from these lands be `used solely for the benefit of the inhabitants of the Hawaiian Islands for education and other public purposes', thereby establishing a special trust relationship between the United States and the inhabitants of Hawaii."


The relevance of this finding to health care is not explained and is not apparent.

In the interest of accuracy, it should be noted that the Newlands Resolution excluded property "used or occupied for the civil, military, or naval purposes of the United States, or . . . assigned for the use of the local government" from the dedication of the proceeds of the ceded lands to the benefit of the "inhabitants of the Hawaiian Islands".

Two other items deserve comment:

"Inhabitant". Webster's Third New International Dictionary (Unabridged) (1993), p. 1163 defines "inhabitant" as "a person who dwells or resides permanently in a place as distinguished from a transient lodger or visitor". There is no evidence that the term as used in the Newlands Resolution was intended to mean anything else, or to refer to "Native Hawaiians".

"Special trust relationship". The term "special trust relationship" should not be used here if it is intended to refer to the "special relationship" between the United States and Indian tribes. In 1900, two years after annexation, Hawaii's "inhabitants" included 29,799 full-blooded Hawaiians, 7,857 part Hawaiians, 25,767 Chinese, 61,111 Japanese and several other racial or ethnic groups totalling overall about 154,001 individuals. ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989), pp. 178-179, Tab 3-1. There has never been any claim made that this group as it existed in 1898, or as it might be composed today, is entitled to the "special relationship" which exists between the U.S. and the Indian tribes.


"In 1921, Congress enacted the Hawaiian Homes Commission Act, 1920, which designated 200,000 acres of the ceded public lands for exclusive homesteading by Native Hawaiians, thereby affirming the trust relationship between the United States and the Native Hawaiians, as expressed by then Secretary of the Interior Franklin K. Lane who was cited in the Committee Report of the Committee on Territories of the House of Representatives as stating, `One thing that impressed me . . . was the fact that the natives of the islands . . . for whom in a sense we are trustees, are falling off rapidly in numbers and many of them are in poverty.'"


The Hawaiian Homes Commission Act (HHCA) provides treacherous support for the argument that a trust relationship exists between the U. S. and Native Hawaiians. Most obviously, it limits its benefits generally to those of 50% Hawaiian "blood", with some exceptions for children of homesteaders who may inherit a homestead lease if he or she has at least 25% Hawaiian "blood". Thus it provides service only to about 50,000 of the perhaps 200,000 "Native Hawaiians".

A claim of a trust relationship founded upon the HHCA was rejected in the recent case of Han v. Department of Justice, 824 F.Supp. 1480 (D. Hawaii 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.

Nor does the HHCA provide support for an argument that its benefits are not "racially" allocated or that the racial distinction at its core is constitutional. 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 meet the requirements of the Fourteenth Amendment. The thinking of those times is reflected in another quote from the testimony of the same Franklin Lane referred to in the proposed finding. Lane said of the "natives of the islands":

"There is a thriftlessness among those people that is characteristic among peoples that are raised under a communist or feudal system. They do not know what the competitive system is and they will get rid of property that is given them. They do not look forward. They can not see to-morrow. Therefore, they should be given as close identification with their country as is possible and yet be protected against their own thriftlessness and against the predatory nature of those who wish to take the land from them, and who have in the past." (H.R. Rep. No. 839, 66th Cong., 2nd sess. at 4.)

Never mind that this was said more than three generations after the end of the "communist or feudal" system in the islands. Never mind that 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 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.


"In 1938, Congress again acknowledged the unique status of the Native Hawaiian people by including in the Act of June 20, 1938 (52 Stat. 781 et seq.), a provision to lease lands within the extension to Native Hawaiians and to permit fishing in the area `only by native Hawaiian residents of said area or of adjacent villages and by visitors under their guidance'."


The relevance of this finding to health care is not explained and is not apparent.

This finding is inaccurate insofar as it states that Congress, in the cited statute, "acknowledged the unique status of the Native Hawaiian people." The act in question provides for the addition of certain land therein described, called the "Kalapana extension," to Hawaii National Park. That part of the statute pertinent to the proposed finding reads as follows:

"Sec. 3 (a) That the Secretary of the Interior is authorized to lease, . . . land ascertained by him to be suitable for home site purposes in the Kalapana extension as described herein, to native Hawaiians when such occupancy does not encroach on or prevent free access to any points of historic, scientific, or scenic interest or an any manner obstruct or interfere with protection and preservation of said area as a part of the Hawaii National Park: Provided, however, That occupants of homesites shall reside on the land not less than six months in any one year: And provided further, That fishing shall be permitted in said area only by native Hawaiian residents of said area or of adjacent villages and by visitors under their guidance. (b) The term 'native Hawaiian', as used in this section, means any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands in 1778."

There is no recognition of a "unique status" or of any other special relationship of any sort. More important, the persons accorded the homesteading and fishing privileges were not "Native Hawaiians" as defined in the S. 1929 (i.e., those with any degree of Hawaiian ancestry), but the "50% blood" Hawaiians who were also beneficiaries under the Hawaiian Homes Commission Act and within that group, only those who resided in the area.

Of course, if the cited statute could not pass the test of strict scrutiny under Adarand, which is likely, it would be of little value today as precedent for any racially limited privileges for persons of Hawaiian ancestry.


"Under the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (73 Stat. 4), the United States transferred responsibility for the administration of the Hawaiian Home Lands to the State of Hawaii but reaffirmed the trust relationship which existed between the United States and the Native Hawaiian people by retaining the exclusive power to enforce the trust, including the power to approve land exchanges, and legislative amendments affecting the rights of beneficiaries under such Act."


This finding is simply wrong.

First and most obviously, the Hawaii Admission Act here referred to as well as the HHCA provided benefits only to persons of 50% Hawaiian "blood", not "Native Hawaiians" defined in this bill as persons with any degree of Hawaiian ancestry.

Second, the Admission Act imposed a trust upon the State of Hawaii, but made no reference to a "trust relationship which existed between the United States and the Native Hawaiian people". In fact, case law on the point is directly contrary. In 1978 a Federal court 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 Hawaii'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. Hawaii 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 Hawaii 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 the proposed 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 Hawaii 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.

Given these decisions, and the absence of any express affirmation of a Federal trust relationship, this finding should be deleted.


"Under the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (73 Stat. 4), the United States transferred responsibility for administration over portions of the ceded public lands trust not retained by the United States to the State of Hawaii but reaffirmed the trust relationship which existed between the United States and the Native Hawaiian people by retaining the legal responsibility of the State for the betterment of the conditions of Native Hawaiians under section 5(f) of such Act."


This statement, taken as a whole, is false.

Nowhere in section 5(f) of the Admission Act, which concerns the so-called "ceded lands trust", does the United States affirm, reaffirm or acknowledge in any way a "trust relationship which existed between the United States and the Native Hawaiian people". Its only reference to persons of Hawaiian ancestry is to "native Hawaiians as defined in the Hawaiian Homes Commission Act" (50% blood quantum). Bettering the conditions of these 50% "native Hawaiians" is not a duty imposed upon either the state or Federal government; it is merely one of five permissible purposes for which trust proceeds may be used, and the statute expressly states that the proceeds of the ceded lands trust may be used for "one or more" of the five enumerated purposes. It permits the state to determine how the trust proceeds are distributed. Price v. State of Hawaii, 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.


"The authority of the Congress under the Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States includes the authority to legislate in matters affecting the native peoples of Alaska and Hawaii."


Although the U.S. Supreme Court has reserved judgment on this point, an examination of pertinent authorities indicates that Congress does not have authority to legislate in matters specifically affecting the "aboriginal or indigenous peoples of the United States" as such, if those "peoples" are defined solely by race or ancestry rather than by some association with a true Indian tribe. Specifically with respect to Congress' powers with respect to Native Hawaiians, the U.S. Supreme Court stated in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section IV.A:

"If Hawaii's [racial voting] restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting [in the Hawaii 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."

Justice Stevens and Ginzberg, dissenting, took express note of 42 U.S.C. section 11701(17) which is essentially identical to the proposed finding. The majority of the court, however, evidently concluded that this statutory affirmation of Congressional authority did not lay the constitutional issue to rest.

A close examination of the issue indicates 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." 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. In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), 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 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 most recent annual listing of "Indian Entities Recognized and Eligible to Receive Services From The United States Bureau of Indian Affairs" (63 Federal Register 71941, Dec. 30, 1998) includes no Hawaiian "tribe", and a recent effort by a group of Hawaiians to have a court declare them a tribe was rejected in an opinion that indicated that no Hawaiian group could qualify as such an entity (see Price v. State of Hawaii, 764 F.2d 623 (9th Cir., 1985)).


"Further, the United States has recognized the authority of the Native Hawaiian people to continue to work towards an appropriate form of sovereignty as defined by the Native Hawaiian people themselves in provisions set forth in legislation returning the Hawaiian Island of Kaho`olawe to custodial management by the State of Hawaii in 1994."


The relevance of this finding to health care is not explained and is not apparent.

An examination of the legislation concerning the return of the island of Kaho`olawe to the State of Hawai'i and providing funds and direction for environmental cleanup and restoration of that island does not disclose any language which might support the statements in this proposed finding. Legislation of the State of Hawaii pertinent to Kaho'olawe provides for transfer of "management and control" of that island to "the sovereign native Hawaiian entity upon its recognition by the United States and the State of Hawaii" (Hawaii Revised Statutes section 6K-9), but no such "entity" existed when the law was passed or exists now. In any event, that state law adds nothing to the Federal statute referred to here and would not be binding on the Federal government even if the state so intended.


"In furtherance of the trust responsibility for the betterment of the conditions of Native Hawaiians, the United States has established a program for the provision of comprehensive health promotion and disease prevention services to maintain and improve the health status of the Hawaiian people. This program is conducted by the Native Hawaiian Health Care Systems, the Native Hawaiian Health Scholarship Program and Papa Ola Lokahi. Health initiatives from these and other health institutions and agencies using Federal assistance have begun to lower the century-old morbidity and mortality rates of Native Hawaiian people by providing comprehensive disease prevention, health promotion activities and increasing the number of Native Hawaiians in the health and allied health professions. This has been accomplished through the Native Hawaiian Health Care Act of 1988 (Public Law 100-579) and its reauthorization in section 9168 of Public Law 102-396 (106 Stat. 1948)."


The existence of a trust responsibility on the part of the United States toward "Native Hawaiians" is doubtful, and should not be assumed in this proposed finding. The case of Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995), read together with the thoughtful analysis in Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997), indicates that no trust relationship between the United States and a group defined by race alone could lawfully exist, even if that group consists of Indians or Alaska Natives. 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 relationship exists at all in the case of Native Hawaiians.

Thus legislation passed on the assumption that such a relationship does exist is in fact based solely on a racial distinction, and is constitutionally questionable.

The matter cannot be resolved simply by Congressional fiat. The broad power of the Federal executive and Congress notwithstanding, no "tribe" 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.

This caution 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, and under current law, no aggregation of people on grounds of their race alone can lawfully be given special privileges at the ballot box (Katzenbach v. South Carolina, 382 U.S. 967 (1966); Gomillion v. Lightfoot, 364 U.S. 339 (1960)) or elsewhere (Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995).

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. Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985). Thus the claimed "special relationship" would, if recognized by Congress, extend privileged political status to a group defined solely by race or ancestry. Given the U.S. Supreme Court's cautionary language in Rice, Congress should consider carefully whether such an outcome is either socially wise or constitutionally permissible.


"This historical and unique legal relationship has been consistently recognized and affirmed by Congress through the enactment of Federal laws which extend to the Native Hawaiian people the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities, including the Native American Programs Act of 1974 (42 U.S.C. 2991 et seq.), the American Indian Religious Freedom Act (42 U.S.C. 1996), the National Museum of the American Indian Act (20 U.S.C. 80q et seq.), and the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.)."


Please see the response and commentary to finding 24 above.

It may be that all of these programs should be reconsidered in light of their presumptive unconstitutionality under Adarand v. Pena, 515 U.S. 200 (1995).

This list of entitlement programs, and that which follows in the next proposed finding, illustrates why this bill presents a grave risk of harm even if all the objectionable "findings" language is deleted. Each such piece of legislation is cited as precedent for the next. If race is not to be a divisive criterion for political and economic privileges in Hawaii, then not only must S. 1929 be rejected, but existing preference legislation should be repealed whenever the opportunity arises.


"The United States has also recognized and reaffirmed the trust relationship to the Native Hawaiian people through legislation which authorizes the provision of services to Native Hawaiians, specifically, the Older Americans Act of 1965 (42 U.S.C. 3001 et seq.), the Developmental Disabilities Assistance and Bill of Rights Act Amendments of 1987, the Veterans' Benefits and Services Act of 1988, the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the Native Hawaiian Health Care Act of 1988 (Public Law 100-579), the Health Professions Reauthorization Act of 1988, the Nursing Shortage Reduction and Education Extension Act of 1988, the Handicapped Programs Technical Amendments Act of 1988, the Indian Health Care Amendments of 1988, and the Disadvantaged Minority Health Improvement Act of 1990."


Please see the comments on findings 24 and 25 above.

While none would object to Native Hawaiians receiving Federal assistance on the same basis as other citizens, there is grave concern with affording Native Hawaiians who are sick, disabled, elderly or veterans priority consideration or special attention solely on account of their race or ancestry, or on account of a change of government over a hundred years ago which brought Native Hawaiians into the very nation which makes those benefits available to all.


"The United States has also affirmed the historical and unique legal relationship to the Hawaiian people by authorizing the provision of services to Native Hawaiians to address problems of alcohol and drug abuse under the Anti-Drug Abuse Act of 1986 (Public Law 99-570)."


Please see the comments on findings 24 and 25 above.


"Further, the United States has recognized that Native Hawaiians, as aboriginal, indigenous, native peoples of Hawaii, are a unique population group in Hawaii and in the continental United States and has so declared in Office of Management and Budget Circular 15 in 1997 and Presidential Executive Order No. 13125, dated June 7, 1999."


Whatever the United States might have "recognized" or "declared", the fact is that "Native Hawaiians" are a group defined by race or ancestry alone. A brief discussion of some of the key words in the finding, however, is appropriate.

28a. "People." "Native Hawaiians" are not a "people", at least in the sense apparently intended, which is 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." As noted above, Native Hawaiians are thoroughly integrated and do not form a "body of persons" separate from the rest of the state and nation in any significant sense. Their common language is English, their common institutions are those of the state of Hawaii and the United States, and their beliefs are as varied as those of the populace at large.

28b. "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 ", and the second is "(2) originating or developing or produced naturally in a particular land or region or environment ". 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 Native Hawaiian claims, the term "indigenous" is merely a code word identifying the one racial group, out of the many in Hawaii, for which the claimants seek special political privilege and status.

28c. "Office of Management and Budget Circular 15" would appear to be OMB's Statistical Policy Directive No. 15, "Race and Ethnic Standards for Federal Statistics and Administrative Reporting", which was revised on October 30, 1997 (62 Fed. Reg. 58728) to separate the classification "Asian or Pacific Islander" into two categories, "Asian" and "Native Hawaiian or Other Pacific Islander". The Federal Register notice shows that the change was controversial. The classification is strictly a matter of race or ancestry and is for statistical reporting only. The notice does not address the issue of the existence of a "special relationship" between Native Hawaiians and the United States, although an earlier related report ("Recommendations From the Interagency Committee for the Review of the Racial and Ethnic Standards to the Office of Management and Budget Concerning Changes to the Standards for the Classification of Federal Data on Race and Ethnicity", 62 Fed. Reg. 36874, July, 9, 1997) at p. 36926 points out the unresolved issue as to whether Native Hawaiians have the same "special legal status with the Federal Government" as Indians. It is therefore difficult to interpret the October 30, 1997 OMB notice as any sort of authority on the constitutionality of special preferences for Native Hawaiians.

28d. "Presidential Executive Order No. 13125". This order, dated June 7, 1999, does not refer to "Native Hawaiians" but to "Pacific Islanders", which is defined to include "the aboriginal, indigenous, native peoples of Hawaii and other Pacific Islands within the jurisdiction of the United States". There is no mention of any uniqueness to this group or even any recognition of a "group" character. There remains the problem of determining whether any persons of Hawaiian ancestry alive today fit that definition.


"Despite the United States having expressed its commitment to a policy of reconciliation with the Native Hawaiian people for past grievances in Public Law 103-150 (107 Stat. 1510) the unmet health needs of the Native Hawaiian people remain severe and their health status continues to be far below that of the general population of the United States."


No connection is apparent between any "policy of reconciliation" and the need of any individual Native Hawaiians for health care, and none is suggested in this finding. It should be noted, however, that "Native Hawaiians" are not a "people" in any sense; they are a group identifiable solely by race or ancestry, and otherwise thoroughly integrated into the social, political and economic life of Hawaii and the U.S. If their health needs deserve special governmental attention, that attention must be paid in accordance with the U.S. Constitution. As the U.S. Supreme Court said in Rice, "[t]he Constitution of the United States, too, has become the heritage of all the citizens of Hawaii".

(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved


Email: ken_conklin@yahoo.com