December 6, 2001 Senate Republican Policy Committee Memo

On December 6, 2001, an important memo was sent from the chairman of the U.S. Senate Republican Policy Committee to all Republican Senators, and to the Democrat leadership. The memo was writtem by Mr. Lincoln Oliphant at the request of the chairman, Senator Larry Craig. This memo makes clear why the Native Hawaiian Recognition bill would be bad public policy and is unconstitutional. The memo also severely criticizes the stealth tactics used (by Senator Inouye) two years in a row to try to sneak this highly controversial bill past the Senate by burying it deep inside a major appropriations bill at the last moment during the rush toward adjournment for the holidays. Here is the full text of that memo:

December 6, 2001

Honorable Larry E. Craig, Chairman

Republican Policy Committee

United States Senate

Washington, District of Columbia


Dear Mr. Chairman:

In its markup earlier this week, the Senate Appropriations Committee added a little-noticed provision to the Defense Appropriations Act, H.R. 3338, which was brought to the Senate floor this afternoon. As you know, prompt enactment of H.R. 3338 is one of the first priorities for Congress and the President.

The little-noticed new provision is in Section 8132 which reads in full, "The provisions of S. 746 of the 107th Congress, as reported to the Senate on September 21, 2001, are hereby enacted into law." S. 746 is often called "the Native Hawaiians bill." S. 746 would "authorize a process" for setting up "a Native Hawaiian government," and it would "provide for the recognition of the Native Hawaiian government by the United States for purposes of carrying on a government-to-government relationship." Senate Report 107-66 at 1 (from the Committee on Indian Affairs to accompany S. 746).

S. 746 addresses issues that are neither isolated nor insular. The effects of this bill will not be limited to the State of Hawaii (where 21.4 percent of the population identified themselves as "multiracial" by checking more than one race on their census form for the year 2000). Laws drawing lines based on racial or ethic classifications are of interest and deep concern to all Americans, not just Americans living in Hawaii. Additionally, the Constitution of the United States is the heritage and supreme law of the land for every American, irrespective of place or paternity. See, Rice v. Cayetano, discussed below. The Wall Street Journal said of last year*s bill that it "would restore Hawaii*s racial spoils system."

Before addressing some of the issues raised by S. 746, it is important to remember that in the last Congress also there was a little-noticed attempt to attach the "Native Hawaiians bill" to an appropriations act. In December of 2000, well into the new fiscal year and near unto Christmas, the multi-billion dollar Consolidated Appropriations Act for Fiscal Year 2001 (H.R. 4577, Pub. L. 106-554) was stopped cold in the Senate even though the House already had passed the conference report and Congress was eager to adjourn. The issue? A "Native Hawaiians bill" that had been slipped into the conference report. The issue was not resolved until both houses of Congress passed S. Con. Res. 162 which instructed the enrolling clerk to omit the section of the Act that contained the offending provisions.

History will repeat itself, and now we have S. 746 added to this year*s Defense Appropriations Act.

Subsection 3(a) of S. 746 says that Native Hawaiians have "an inherent right to autonomy in their internal affairs, an inherent right of self-determination and self-governance, and the right to reorganize a Native Hawaiian governing entity." Subsection 3(b) says "the purpose of this Act is to provide a process for the recognition by the United States of a Native Hawaiian governing entity for purposes of continuing a government-to-government relationship." Subsection 2(6)(A) temporarily defines "Native Hawaiian" as the "indigenous, native people of Hawaii who are the direct 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. . . ." That definition is only temporary because after the Native Hawaiian Government is recognized by the United States, the term will have the meaning "given to such term in the organic governing documents of the Native Hawaiian governing entity" [Subsection 2(6)(B)].

As can be seen, the government of Native Hawaiians that the United States is going to recognize and deal with in a "government-to-government relationship" is going to comprise and represent only persons having a certain racial or ethnic lineage. Some will be in the preferred group, and some will be out, because of their blood. It is easy to see why that is problematic:

not be denied or abridged by the United States or by any State on account of race, color,

or previous condition of servitude." See, Rice v. Cayetano, quoted below.

42 U.S.C. *1973(a) (1994).

In Rice v. Cayetano, 528 U.S. 495 (Feb. 23, 2000) (vote of 7-to-2), the Supreme Court of the United States struck down a Hawaii law that provided that only "Hawaiians" (which the law defined) could vote for the nine trustees of Hawaii*s Office of Hawaiian Affairs (OHA). The High Court relied upon the 15th Amendment, and said:

"The purpose and command of the Fifteenth Amendment are set forth in language both explicit and comprehensive. The National Government and the States may not violate a fundamental principle: They may not deny or abridge the right to vote on account of race. . . .

"The design of the Amendment is to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise. A resolve so absolute required language as simple in command as it was comprehensive in operation, the Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race. . . ." 120 S. Ct. at 1055.

"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 1055-56.

"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.

"In this case the Fifteenth Amendment invalidates the electoral qualification based on ancestry. . . ." Id. at 1060.

Cayetano concerned those who were eligible to vote for OHA trustees. In the fall of 2000, the United States District Court for the District of Hawaii struck down Hawaii*s requirement that each of the trustees also must be "Hawaiian." The Court relied upon the 15th Amendment (as the Supreme Court did in Cayetano), and also the 14th Amendment and the Voting Rights Act. In its order, the District Court said:

"The Court is presented with the question of whether the United States Constitution allows the racial restriction on [Office of Hawaiian Affairs] trustees as one of the means by which the State of Hawaii may effectuate the goal of bettering the conditions and restoring and maintaining the culture of Hawaiians. In considering the questions presented by the parties, the Court is mindful that ours is a political system that strives to govern its citizens as individuals rather than as groups. The Supreme Court*s brightest moments have affirmed this idea, see, e.g, Brown v. Board of Education, 347 U.S. 483 (1954) (holding that establishing separate schools by race violates the U.S. Constitution); Bolling v. Sharpe, 347 U.S. 497 (same); Cooper v. Aaron, 358 U.S. 1 (1958); while its darkest moments have rejected this concept. See, e.g., Dred Scott v. Sandford, 19 How. 393 (1856) (denying citizenship to blacks); Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (permitting separate train cars for blacks and whites); Bradwell v. Illinois, 83 U.S. 130 (1872) (upholding state law that barred women from practicing law); Korematsu v. United States, 323 U.S. 214 (1944) (upholding the internment of persons of Japanese ancestry during World War II).

"The Fourteenth and Fifteenth Amendments to the U.S. Constitution were enacted as part of the effort to exorcize race as a factor upon which the government may base its treatment of its people. See Shaw v. Reno, 509 U.S. 630, 657 (1993) (stating that a goal of our political system is to make race no longer matter). Racial classifications are particularly harmful when used with respect to voting, as they threaten to *balkanize us into competing racial factions.* See id." Order Granting Plaintiffs* Cross Motion for Summary Judgment and Denying Defendants* Motion for Summary Judgment at 2-4 (typewritten), Arakaki v. Hawaii, D. Hawaii, Civil No. 00-00514 HG-BMK (filed Sept. 19, 2000) (on appeal to the 9th Circuit).

Mr. Chairman, S. 746 raises complicated questions on fundamental issues that are vital to Americans in every State, not just Hawaii. This 22-page bill also raises serious constitutional questions, yet S. 746 was tacked onto the Defense Appropriations Act with a one-sentence amendment. The Appropriations Committee*s report hardly provides a satisfactory explanation. The report says, in full, "The Committee includes a new provision concerning Native Hawaiians." Senate Report 107-109 at 164 (from the Committee on Appropriations to accompany H.R. 3338).

One critic of S. 746, Sandra Puanani Burgess, wrote an open letter on May 22, 2001 to all Senators and Representatives. That letter began, "I am an American of Hawaiian, Chinese, and Filipino ancestry. I have lived in Hawaii all 50 years of my life. I don*t think I should receive more than my Chinese or Filipino relatives just because I am Hawaiian and they are not." The letter went on to say that passage of S. 746 would "divide rather than unite us."

I hope this information will prove useful.


Lincoln C. Oliphant, Counsel

cc: The Majority Leader

The Assistant Majority Leader

Other Republican Senators


Senator Inouye's record of stealth and deception in December 2001 is essentially the same pattern he followed in December 2000. On both occasions, he used his powerful position regarding appropriations bills to bury the Native Hawaiian Recognition bill by reference (as a single sentence) deep inside a "must-pass" bill hundreds of pages long very close to the Christmas holiday deadline for the end of a Congressional session. On both occasions his gross abuse of the trust of his colleagues was discovered at the last possible moment, and the Hawaiian bill was forcibly removed from its hiding place.

For a complete record of the stealth strategy in the year 2000, see

and for the spectacularly shameful maneuvers of the final day of Congress in December 2000, foreshadowing 2001, see

The Native Hawaiian Recognition bill remains poised for passage in Congress, having passed both the Senate Committee on Indian Affairs and the House Resources Committee. The bill's supporters are trying to portray it as non-controversial.

But this bill is highly controversial, unconstitutional, and dangerous to all 50 states.

The best website explaining the bill and what's wrong with it is

A webpage created August 27, 2001 provides newly-compiled U.S. Census data showing that the phony proposed "Native Hawaiian" Indian tribe would have over 400,000 members and be the largest tribe in America, competing against genuine tribes for government handouts. A spreadsheet showing state-by-state and total population of "Native Hawaiians" is on the new webpage at

For further information about Hawaiian sovereignty, see