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                                                       Calendar No. 567
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-260

======================================================================

 
TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES 
  RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PROVIDE A PROCESS FOR THE 
   RECOGNITION BY THE UNITED STATES OF THE NATIVE HAWAIIAN GOVERNING 
                                 ENTITY

                                _______
                                

                February 5, 2008.--Ordered to be printed

                                _______
                                

    Mr. Dorgan, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 310]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 310) to express the policy of the United States 
regarding the United States relationship with Native Hawaiians 
and to provide a process for the recognition by the United 
States of the Native Hawaiian governing entity, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                PURPOSE

    The purpose of S. 310 is to establish a process for the 
reorganization of a Native Hawaiian government and, when that 
process has been completed in accordance with the Act, to 
reaffirm the special political and legal relationship between 
the United States and the Native Hawaiian governing entity for 
purposes of carrying on a government-to-government 
relationship.

                         BACKGROUND AND HISTORY

    S. 310 is the current bill that establishes a process for 
the reorganization and recognition of a Native Hawaiian 
governing entity. Similar bills have been introduced since 
1999. These bills are the result of longstanding efforts to 
address the impacts of the 1893 overthrow of the Native 
Hawaiian Kingdom, an event that the United States participated 
in and encouraged.
    The language of S. 310 is identical to legislative language 
that was negotiated between the Hawaii Congressional Delegation 
and officials from the Department of Justice, Office of 
Management and Budget, and the White House in the 109th 
Congress. The language satisfactorily addresses concerns 
expressed in a July 2005 letter from the Administration 
regarding potential liability of the United States involving 
land claims, the impact of S. 310 on military readiness, 
gaming, and civil and criminal jurisdiction in Hawaii.
    In 1993, Congress passed an Apology Resolution (P.L. 103-
150) extending an apology on behalf of the United States to the 
Native Hawaiians for its role in the illegal overthrow of the 
Native Hawaiian government and committing the United States to 
support reconciliation efforts between the United States and 
the Native Hawaiian people. In response to the Apology 
Resolution, the Departments of the Interior and Justice 
initiated a process of reconciliation in 1999 by conducting 
meetings in Native Hawaiian communities. The result of these 
reconciliation efforts was a joint report, From Mauka to Makai: 
The River of Justice Must Flow Freely, from the two Departments 
in 2000. Since the issuance of the report, the Senators from 
Hawaii have introduced legislation to implement the findings of 
the reconciliation report. This Committee held several hearings 
on the matter, and has continued to hold hearings each 
Congress.
    Native Hawaiians are the indigenous, native people of 
Hawaii with whom the United States has a trust responsibility. 
Congress has repeatedly recognized the unique status of Native 
Hawaiians since 1921. The long-standing policy of the United 
States has been to protect and advance Native Hawaiian 
interests.
    Native Hawaiians continue to suffer the consequences of the 
1893 overthrow of their indigenous government. Today, Native 
Hawaiians continue to have higher rates of poverty and lower 
incomes than non-Native Hawaiians in Hawaii.\1\ Establishing an 
avenue for Native Hawaiians to reorganize a government will 
provide opportunities for Native Hawaiians to exercise self-
governance and self-determination and develop their own 
solutions to the problems faced by their communities. It 
empowers them to preserve their cultural resources.
---------------------------------------------------------------------------
    \1\Census Bureau, Hawaii State Data Center, State of Hawaii Data 
Book.
---------------------------------------------------------------------------

Native Hawaiian society before european contact

    Native Hawaiians are the indigenous, aboriginal people of 
the island group that is today the State of Hawaii. Hawaii was 
originally settled by voyagers from central and eastern 
Polynesia, traveling immense distances in double-hulled 
voyaging canoes and arriving in Hawaii perhaps as early as 300 
A.D.
    Hundreds of years of Hawaiian isolation followed the end of 
the era of ``long voyages.'' \2\ During these centuries, the 
Native Hawaiians evolved a system of self-governance and a 
highly organized, self-sufficient, subsistent social system 
based on communal land tenure with a sophisticated language, 
culture, and religion. There was no concept of private land 
ownership in early Hawaiian thought. The communal nature of the 
economy and the structure of the society resulted in values 
strikingly different from those prevalent in more competitive 
western economies and societies.
---------------------------------------------------------------------------
    \2\Id.
---------------------------------------------------------------------------
    Hawaii's social, economic, and political system was highly 
developed and evolving, and its population, conservatively 
estimated to be at least 300,000, was relatively stable before 
the arrival of the first European explorers.\3\
---------------------------------------------------------------------------
    \3\This estimate is conservative; other sources place the number at 
one million. David E. Stannard, Before the Horror; the Population of 
Hawaii on the Eve of Western Contact 59 (1989).
---------------------------------------------------------------------------

European contact

    Hawaii was ``discovered'' by Europeans in 1778, when the 
first white foreigner, Captain James Cook of the British Royal 
Navy, landed. Other foreign vessels soon followed on journeys 
of exploration or trade.\4\ In the years following Cook's 
arrival, warring Hawaiian chiefs used foreign weapons and 
fought for control of Hawaii. In 1810, the Native Hawaiian 
political, economic and social structure was unified under a 
monarchy led by King Kamehameha I. The authority of the King 
was derived from the gods, and he was a trustee of the land and 
other natural resources of the islands which were held 
communally.
---------------------------------------------------------------------------
    \4\E.S. & Elizabeth G. Handy, Native Planters in Old Hawaii 331 
(1972).
---------------------------------------------------------------------------
    Western contact had an immediate and precipitous decline of 
the Native Hawaiian population. Between Cook's arrival in 1778 
and 1820, disease, famine, and war killed more than half of the 
Native Hawaiian population. By 1866, only 57,000 Native 
Hawaiians lived on the islands, compared to the stable pre-1778 
population of at least 300,000. The impact of Western contact 
was greater than the numbers can convey: old people were left 
without the young adults who supported them; children were left 
without parents or grandparents to instill traditional values 
and practices. The result was a rending of the social fabric.
    This devastating population loss was accompanied by 
cultural destruction. Western sailors, merchants, and traders 
did not abide by the Hawaii kapu (taboos) system or religious 
practices. As a result, the chiefs began to imitate the 
foreigners whose ships and arms were technologically more 
advanced than their own.\5\ The kapu were abandoned soon after 
the death of Kamehameha I.
---------------------------------------------------------------------------
    \5\Fuchs, supra at 8-9.
---------------------------------------------------------------------------
    Western merchants also forced rapid change in the islands' 
economy. Initially, Hawaiian chiefs sought to trade for western 
goods and weapons, taxing and working commoners to obtain the 
supplies and valuable sandalwood needed for such trades. As 
Hawaii's stock of sandalwood declined so did that trade, but it 
was replaced by whaling and other mercantile activities.\6\ 
More than four-fifths of Hawaii's foreign commerce was 
American; the whaling services industry and mercantile business 
in Honolulu were almost entirely in American hands.\7\ Even the 
communal ownership and cultivation of the land was soon 
replaced by a western system of individual property ownership.
---------------------------------------------------------------------------
    \6\Fuchs, supra at 10-11; Kuykendall & Day, supra at 41-3; 
MacKenzie supra at 5.
    \7\Fuchs supra at 18-9; MacKenzie supra at 6, 9-10.
---------------------------------------------------------------------------

The mass privatization of Native Hawaiian land

    As the middle of the 19th century approached, the islands' 
small non-Hawaiian population wielded an influence far in 
excess of its size.\8\ These influential westerners sought to 
limit the absolute power of the Hawaiian King over their legal 
rights and to implement property law so that they could 
accumulate and control land. These goals were achieved as a 
result of foreign pressure.\9\
---------------------------------------------------------------------------
    \8\Felix S. Cohen, Handbook of Federal Indian Law 799 (2d ed. 
1982).
    \9\MacKenzie supra at 6.
---------------------------------------------------------------------------
    The Westerners' efforts were successful in 1840, when the 
King of Hawaii promulgated a new constitution, establishing a 
hereditary House of Nobles and an elected House of Commons. In 
1842, the King authorized the Great Mahele, the division of 
Hawaii's communal land system into private ownership between 
himself and his royal successors, the chiefs and the Hawaiian 
government. Ultimately, the Great Mahele led to the transfer of 
substantial amounts of land into western hands. In 1848, the 
King conveyed about 1.5 million of the approximately 4 million 
acres in the islands to the konohiki (main chiefs). He reserved 
about 1 million acres for himself and his royal successors 
(``Crown Lands''), and allocated about 1.5 million acres to the 
government of Hawaii (``Government Lands'').
    All lands remained subject to the rights of native tenants. 
However, in 1850, after the division was accomplished, an act 
was passed permitting non-natives to purchase land from Native 
Hawaiians in fee simple. This resulted in a dramatic 
concentration of land ownership in plantations, estates, and 
ranches owned by non-natives. The law implementing the Great 
Mahele contemplated that the makaainana (commoners) would 
receive a substantial portion of the distributed lands because 
they were entitled to file claims to the lands that their 
ancestors had cultivated. In the end, however, only 28,600 
acres (less than 1% of the land) were awarded to about 8,000 
individual Native Hawaiian farmers.\10\
---------------------------------------------------------------------------
    \10\MacKenzie, supra at 6-9. The maka'ainana failed to secure a 
great portion of the land for a number of reasons. Many did not know of 
or understand the new laws, could not afford the survey costs, feared 
that a claim would be perceived as a betrayal of the new chief, were 
unable to farm without the traditional common cultivation and 
irrigation of large areas, were killed in epidemics or migrated to 
cities. Id., at 8.
---------------------------------------------------------------------------

United States enters into treaties with Native Hawaiian government

    Ultimately, the 2,000 westerners who lived on the islands 
obtained much of the profitable acreage from the commoners and 
chiefs. The mutual interests of Americans living in Hawaii and 
those living in the United States became increasingly clear. 
American merchants and planters in Hawaii wanted access to 
mainland markets and protection from European and Asian 
domination. The United States developed a military and economic 
interest in placing Hawaii within its sphere of influence.
    Thus, in order to protect its interests, the United States 
and Hawaii entered into a series of four treaties. American 
advisors urged the King to pursue international recognition of 
Hawaiian sovereignty, backed up by an American guarantee of 
continued independence.
    America's political influence in Hawaii was heightened by 
the rapid growth of the island sugar industry which followed 
the Mahele. The 1875 Convention on Commercial Reciprocity\11\ 
eliminated the American tariff on sugar from Hawaii and 
virtually all tariffs that Hawaii had placed on American 
products. Critically, it also prohibited Hawaii from giving 
political, economic, or territorial preferences to any other 
foreign power. When the Reciprocity Treaty was extended in 
1887, the United States also obtained the right to establish a 
military base at Pearl Harbor.
---------------------------------------------------------------------------
    \11\S. Exec. Doc. No. 52-77, 40-41 (1893) (describing 1842 
statement).
---------------------------------------------------------------------------

Overthrow of the Native Hawaiian government

    In 1887, King Kalakaua appointed a prime minister who was 
supported by the Native Hawaiian people and who was opposed to 
granting a military base at Pearl Harbor as a part of the 
Reciprocity Treaty. The business community, backed by the 
Honolulu Rifles, a military group formed by the children of 
American missionaries, forced the prime minister's resignation 
and the enactment of a new constitution. The new constitution, 
often referred to as the Bayonet Constitution due to the use of 
militant force, reduced the King to a figure of minor 
constitutional importance. It extended the right to vote to 
western males, whether or not they were citizens of the 
Hawaiian Kingdom. It also disenfranchised almost all native 
voters by giving only residents with a specified income level 
or amount of property the right to vote for members of the 
House of Nobles. This resulted in representatives of the 
westerners taking control of the legislature.
    In 1891, Queen Liliuokalani came to power. Queen 
Liliuokalani supported promulgating a new constitution that 
would restore absolute control over the legislature to the 
reigning sovereign. Realizing that the Hawaiian monarchy posed 
a continuing threat to the unimpeded pursuit of their 
interests, the westerners formed a Committee of Public Safety 
to overthrow the Kingdom of Hawaii. Mercantile and sugar 
interests also favored annexation by the United States to 
ensure access on favorable terms to mainland markets and 
protection from Asian conquest. The American annexation group 
collaborated closely with the United States' Minister in 
Hawaii.
    On January 16, 1893, at the order of United States' 
Minister John Stevens, a contingent of United States Marines 
from the USS Boston marched through Honolulu to a building 
located near both the government building and the palace. The 
next day local non-Hawaiian revolutionaries seized the 
government building and demanded that Queen Liliuokalani 
abdicate the monarchy. Minister Stevens immediately recognized 
the rebels' provisional government and placed it under the 
United States' protection.
    Upon hearing the news, United States President Benjamin 
Harrison promptly sent an annexation treaty to the Senate for 
ratification and denied any United States involvement in the 
revolution. Before the Senate could act, however, President 
Grover Cleveland assumed office and withdrew the treaty; he 
also demanded that the Queen be restored. However, the Senate 
Foreign Relations Committee issued a report ratifying Stevens' 
actions and recognizing the provisional government of Hawaii. 
In doing so, the Senate Foreign Relations Committee described 
the relations between the United States and Native Hawaiian 
government as unique because ``Hawaii has been all the time 
under a virtual suzerainty [when a nation controls another 
nation] of the United States.''\12\
---------------------------------------------------------------------------
    \12\S. Rep. No. 53-277 at 21 (1894) (emphasis added).
---------------------------------------------------------------------------

Hawaii becomes a State of the Union

    As a result of this impasse between President Cleveland and 
the Senate, the United States government neither restored the 
Queen nor annexed Hawaii. The Provisional Government of Hawaii 
thus called a constitutional convention whose composition and 
members it controlled.\13\ The convention promulgated a 
constitution for the new Republic of Hawaii that imposed 
property and income qualifications as prerequisites for the 
franchise and for holding elected office.\14\ Article 101 of 
the Constitution of the Republic of Hawaii required prospective 
voters to swear an oath of support to the Republic and to 
declare they would not, ``either directly or indirectly, 
encourage or assist in the restoration or establishment of a 
monarchical form of government in the Hawaiian Islands.'' The 
overwhelming majority of the Native Hawaiian population, who 
were loyal to their Queen, refused to swear such an oath and 
were effectively disenfranchised.\15\
---------------------------------------------------------------------------
    \13\Kuykendall & Day supra at 183.
    \14\Id at 184; MacKenzie supra at 13.
    \15\Noenoe Silva, Ke Ku'e Loa Nei Makou: Kanaka Maoli Resistance to 
Colonization 170 (1999) (Silva).
---------------------------------------------------------------------------
    In 1896, President William McKinley was elected as 
President of the United States; he quickly sent the Senate 
another annexation treaty. Simultaneously, the Native Hawaiian 
people adopted resolutions which they sent to Congress stating 
that they opposed annexation and wanted to be an independent 
kingdom.\16\ The annexation treaty failed in the Senate because 
a two-thirds majority could not be obtained as required under 
the Treaty Clause of the U.S. Constitution.
---------------------------------------------------------------------------
    \16\W.A. Russ, The Hawaiian Republic (1894-1898) 198, 209 (1961). 
The resolutions were signed by 21,269 people, representing more than 
50% of the Native Hawaiian population at that time. Jon M. Van Dyke, 
The Political Status of the Native Hawaiian People, 17 Yale L. & Pol'y 
Rev. 95 at 103 & n.48 (citing Dan Nakaso, Anti-Annexation Petition 
Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at 1); Tom Coffman, 
Nation Within: The Story of America's Annexation of the Nation of 
Hawaii 273-82 (1998); Silva supra at 184-206.
---------------------------------------------------------------------------
    However, pro-annexation forces in the House of 
Representatives introduced a Joint Resolution of Annexation in 
that Chamber of Congress. Adoption of the Joint Resolution 
required only a simple majority in each House of Congress. The 
balance was tipped in favor of the Resolution by the United 
States' entry into the Spanish-American War. American troops 
were fighting in the Pacific, particularly in the Philippines, 
and the United States needed to be sure of a Pacific base.\17\ 
In July 1898, the Joint Resolution was enacted, becoming ``the 
fruit of approximately seventy-five years of expanding American 
influence in Hawaii.''\18\
---------------------------------------------------------------------------
    \17\Kuykendall & Day, supra at 188; MacKenzie, supra at 14.
    \18\Fuchs, supra at 36.
---------------------------------------------------------------------------
    On August 12, 1898, the Republic of Hawaii ceded 
sovereignty and conveyed title to its public lands, including 
the Government and Crown Lands, to the United States.\19\ In 
1900, Congress passed the Hawaii Organic Act,\20\ establishing 
a Hawaiian territorial government. Ultimately, Congress 
admitted Hawaii to the Union as the fiftieth state with the 
enactment of the Admission Act in 1959.
---------------------------------------------------------------------------
    \19\Joint Resolution for Annexing the Hawaiian Islands to the 
United States, ch. 55, 30 Stat. 750, 751 (1898) (Annexation 
Resolution).
    \20\Act of April 30, 1900, ch. 339, 31 Stat. 141 (1900) (Organic 
Act).
---------------------------------------------------------------------------

  RECOGNITION BY THE UNITED STATES OF OBLIGATIONS TO NATIVE HAWAIIANS

    For over two hundred years, the United States Congress, the 
Executive Branch, and the U.S. Supreme Court have recognized 
certain legal rights and protections for America's indigenous 
peoples. Since the founding of the United States, Congress has 
exercised a constitutional authority over indigenous affairs 
and has undertaken an enhanced duty of care for America's 
indigenous peoples. This has been done in recognition of the 
sovereignty possessed by the native people, which pre-existed 
the formation of the United States. The Congress' exercise of 
its constitutional authority is also premised upon the status 
of the indigenous people as the original inhabitants of this 
nation who occupied and exercised dominion and control over the 
lands which the United States subsequently acquired.
    The United States has recognized again and again that 
Native Hawaiians are entitled to special rights and 
considerations, and the Congress has enacted laws to give 
expression to the respective obligations to Native Hawaiians. 
As evidence of this special relationship, Congress has enacted 
over one hundred fifty statutes addressing the conditions of 
Native Hawaiians and providing them with benefits. The 
recognition of a special relationship with Native Hawaiians is 
not new, as Congress and the United States have historically 
treated Native Hawaiians in a manner similar to the other 
indigenous groups of America.

Hawaiian Homes Commission Act

    Congress explicitly recognized the existence of a special 
or trust relationship between the Native Hawaiian people and 
the United States with the enactment of the Hawaiian Homes 
Commission Act in 1921. Prior to the enactment of this law, 
Congress received testimony from officials of the Executive 
Branch analogizing the federal government's relationship and 
responsibilities to Native Hawaiians as being similar to those 
to other Native Americans--the federal government as trustee 
and the Native American as the ward.
    Beginning in the early 1800's, large amounts of land were 
made available to foreigners and were eventually leased to them 
in order to cultivate pineapple and sugar cane. Large numbers 
of Native Hawaiians were forced off the lands that they had 
both cared for and traditionally occupied. As a result, many 
Native Hawaiians moved into the urban areas, often lived in 
severely overcrowded tenements and rapidly contracted diseases 
to which they had no immunities.
    By 1920, due to the dramatic decline in the number of 
Native Hawaiians in the decades leading up to and following the 
overthrow, there were many people who concluded that the native 
people of Hawaii were a ``dying race.'' If they were to be 
saved from extinction, they must have the means of regaining 
their connection to the land, the 'aina. In hearings on the 
matter, Secretary of the Interior Franklin Lane explained the 
trust relationship on which the statute was premised:

    One thing that impressed me . . . was the fact that the 
natives of the island who are our wards, I should say, and for 
whom in a sense we are trustees, are falling off rapidly in 
numbers and many of them are in poverty.\21\
---------------------------------------------------------------------------
    \21\H.R. Rep. No. 66-839, 66th Cong., 2d Sess., at 4 (1920).
---------------------------------------------------------------------------
    Secretary Lane explicitly analogized the relationship 
between the United States and Native Hawaiians to the trust 
relationship between the United States and other Native 
Americans, explaining that special programs for Native 
Hawaiians are fully supported by history and ``an extension of 
the same idea'' that supports such programs for other 
Indians.\22\
---------------------------------------------------------------------------
    \22\Hearings before the Committee on the Territories, House of 
Representatives, 66th Cong., 2d Sess., on Proposed Amendments to the 
Organic Act of the Territory of Hawaii , February 3, 4, 5, 7, and 10, 
1920, at 129-130 (statement of Secretary Lane that ``[w]e have got the 
right to set aside these lands for this particular body of people, 
because I think the history of the islands will justify that before any 
tribunal in the world,'' rejecting the argument that legislation aimed 
at ``this distinct race'' would be unconstitutional because ``it would 
be an extension of the same idea'' as that established in dealing with 
Indians, and citing a Solicitor's opinion stating that the setting 
aside of public lands within the Territory of Hawaii would not be 
unconstitutional, relying in part on the congressionally authorized 
allotment to Indians as precedent for such an action); see, also, id. 
at 127 (colloquy between Secretary Lane and Representative Monahan, 
analogizing status of Native Hawaiians to that of Indians) and at 167-
70 (colloquy between Representative Curry, Chair of the Committee, and 
Representatives Dowell, and Humphreys, making the same analogy and 
rejecting the objection that ``we have no government or tribe to deal 
with here'').
---------------------------------------------------------------------------
    Senator John H. Wise, a member of the Legislative 
Commission of the Territory of Hawaii, testified before the 
United States House of Representatives as follows:

    The idea in trying to get the lands back to some of the 
Hawaiians is to rehabilitate them. I believe that we should get 
them on lands and let them own their own homes . . .

           *       *       *       *       *       *       *

    The Hawaiian people are a farming people and fishermen, 
out-of-door people, and when they were frozen out of their 
lands and driven into the cities they had to live in the 
cheapest places, tenements. That is one of the big reasons why 
the Hawaiian people are dying. Now, the only way to save them, 
I contend, is to take them back to the lands and give them the 
mode of living that their ancestors were accustomed to and in 
that way rehabilitate them.\23\
---------------------------------------------------------------------------
    \23\Id. at 39. Wise's testimony was also quoted and adopted in the 
House Committee on the Territories' report to the full U.S. House of 
Representatives, H. Rep. No. 66-839, at 4.
---------------------------------------------------------------------------
    In 1920, Prince Jonah Kuhio Kalaniana'ole (Prince Kuhio), 
the Territory's sole delegate to Congress, testified before the 
full U.S. House of Representatives: ``The Hawaiian race is 
passing. And if conditions continue to exist as they do today, 
this splendid race of people, my people, will pass from the 
face of the earth.''\24\ Secretary Lane attributed the 
declining population to health problems like those faced by the 
``Indian in the United States'' and concluded the Nation must 
provide similar remedies.\25\
---------------------------------------------------------------------------
    \24\59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio 
Kalaniana'ole).
    \25\H. Rep. No. 66-839, at 5 (statement of Secretary Lane).
---------------------------------------------------------------------------
    The effort to ``rehabilitate'' the dying race of Native 
Hawaiians by returning them to the land led the Congress to 
enact the Hawaiian Homes Commission Act on July 9, 1921. The 
Act sets aside approximately 203,500 acres of the Ceded Lands 
for homesteading by Native Hawaiians.\26\ Congress compared the 
Act to ``previous enactments granting Indians . . . special 
privileges in obtaining and using the public lands.''\27\
---------------------------------------------------------------------------
    \26\Hawaiian Homes Commission Act, 203.
    \27\H. Rep. No. 66-839, at 11 (1920).
---------------------------------------------------------------------------
    In support of the Act, the House Committee on the 
Territories recognized that, prior to the Great Mahale, 
Hawaiians had a one-third interest in the lands of the Kingdom. 
The Committee reported that the Act was necessary to address 
the way Hawaiians had been short-changed in prior land 
distribution schemes.\28\ Prince Kuhio further testified before 
the U.S. House of Representatives that Hawaiians had an 
equitable interest in the unregistered lands that reverted to 
the Crown before being taken by the Provisional Government and, 
subsequently, the Territorial Government:
---------------------------------------------------------------------------
    \28\Id. at 6-7.
---------------------------------------------------------------------------
    [T]hese lands, which we are now asking to be set aside for 
the rehabilitation of the Hawaiian race, in which a one-third 
interest of the common people had been recognized, but ignored 
in the division, and which reverted to the Crown, presumably in 
trust for people, were taken over by the Republic of Hawaii by 
an article of [its] constitution . . . 

           *       *       *       *       *       *       *

    By annexation these lands became a part of the public lands 
of the United States, and by the provisions of the organic act 
under the custody and control of the Territory of Hawaii.

           *       *       *       *       *       *       *

    We are not asking that what you are to do be in the nature 
of a largesse or as a grant, but as a matter of justice . . 
.\29\
---------------------------------------------------------------------------
    \29\59 Cong. Rec. 7452-3 (1920) (statement of Delegate Jonah Kuhio 
Kalaniana'ole).
---------------------------------------------------------------------------
    The 1921 Act provides that the lessee must be a Native 
Hawaiian, who is entitled to a lease for a term of ninety-nine 
years, provided that the lessee occupy and use or cultivate the 
tract within one year after the lease is entered into. A 
restriction on alienation, like those imposed on Indian lands 
subject to allotment, was included in the lease. Also like the 
general allotment acts affecting Indians,\30\ the leases were 
intended to encourage rural homesteading so that Native 
Hawaiians would leave the urban areas and return to rural 
subsistence or commercial farming and ranching. In 1923, the 
Congress amended the Act to permit one-half acre residence lots 
and to provide for home construction loans. Thereafter, the 
demand for residential lots far exceeded the demand for 
agricultural or pastoral lots.\31\
---------------------------------------------------------------------------
    \30\25 U.S.C. 331-334, 339, 342, 348, 349, 381 (1998).
    \31\Office of State Planning, Office of the Governor, State of 
Hawaii, Pt. I, Report on Federal Breaches of the Hawaiian Home Lands 
Trust, 4-6 (1992).
---------------------------------------------------------------------------
    During the remainder of the Territorial period and the 
first two decades following statehood, administration of the 
Hawaiian home lands program was inadequately funded, and the 
best lands were leased to non-Hawaiians in order to generate 
operating funds. There was little income remaining for the 
development of infrastructure or the settlement of Hawaiians on 
the home lands. The lack of resources-combined with 
questionable transfers and exchanges of Hawaiian home lands, 
and a decades-long waiting list of those eligible to reside on 
the home lands program an illusory promise for most Native 
Hawaiians.\32\ While the Act did not succeed in its purpose, 
its enactment has substantial importance because it constitutes 
an express affirmation of the United States' trust 
responsibility to the Native Hawaiian people.
---------------------------------------------------------------------------
    \32\Id., at 12-18.
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The Hawaii Admission Act

    As a condition of statehood, the Hawaii Admission Act\33\ 
required the State of Hawaii to adopt the Hawaiian Homes 
Commission Act and imposed a public trust on the lands ceded by 
the United States to the new State. The 1959 Compact between 
the United States and the People of Hawaii by which Hawaii was 
admitted into the Union expressly provides that:
---------------------------------------------------------------------------
    \33\Pub. L. No. 86-3, 73 Stat. 4 (March 18, 1959) (the ``Admission 
Act'').
---------------------------------------------------------------------------
    As a compact with the United States relating to the 
management and disposition of the Hawaiian home lands, the 
Hawaiian Homes Commission Act, 1920, as amended, shall be 
adopted as a provision in section 7, subsection (b) of this 
Act, subject to amendment or repeal only with the consent of 
the United States, and in no other manner: Provided, That (1) 
the Hawaiian home-loan fund, the Hawaiian home-operating fund, 
and the Hawaiian home-development fund shall not be reduced or 
impaired by any such amendment, whether made in the 
constitution or in the manner required for State legislation, 
and the encumbrances authorized to be placed on Hawaiian home 
lands by officers other than those charged with the 
administration of said Act, shall not be increased, except with 
the consent of the United States; (2) that any amendment to 
increase the benefits to lessees of Hawaiian home lands may be 
made in the constitution, or in the manner required for State 
legislation, but the qualifications of lessees shall not be 
changed except with the consent of the United States; and (3) 
that all proceeds and income from ``available lands'', as 
defined by said Act, shall be used in carrying out the 
provisions of said Act.\34\
---------------------------------------------------------------------------
    \34\Admission Act, Sec. 4, 73 Stat. at 5.

           *       *       *       *       *       *       *

---------------------------------------------------------------------------
    The lands granted to the State of Hawaii by subsection (b) 
of this section and public lands retained by the United States 
under subsection (c) and (d) and later conveyed to the State 
under subsection (e), together with the proceeds from the sale 
or other disposition of any such lands and the income 
therefrom, shall be held by said State as a public trust for 
the support of public schools and other public educational 
institutions, for the betterment of the conditions of native 
Hawaiians, as defined in the Hawaiian Homes Commission Act, 
1920, as amended, for the development of farm and home 
ownership on as widespread a basis as possible for the making 
of public improvements, and for the provision of lands for 
public use. Such lands, proceeds, and income shall be managed 
and disposed of for one or more of the foregoing purposes in 
such manner as the constitution and laws of said State may 
provide, and their use for any other object shall constitute a 
breach of trust for which suit may be brought by the United 
States.\35\
---------------------------------------------------------------------------
    \35\Id., Sec. 5(f), 73 Stat. at 6 (emphasis added).
---------------------------------------------------------------------------
    These explicit delegations of Federal authority to be 
assumed by the new State were not discretionary or permissive. 
The sections of the Admission Act quoted above contemplate a 
continuing Federal role, as do sections 204 and 223 of the 
Hawaiian Homes Commission Act, which provide that the consent 
of the Secretary of the Interior must be obtained for certain 
exchanges of trust lands and which reserved to Congress the 
right to amend that Act.\36\ The Federal courts have noted that 
the United States retains the authority to bring an enforcement 
action against the State of Hawaii for breach of the section 
5(f) trust.\37\
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    \36\With the adoption of its new Constitution, the State of Hawaii 
assumed the Federally-delegated responsibility of administering the 
Ceded Lands in accordance with the 5 purposes set forth in the 
Admission Act and of managing the 203,500 acres of land that had been 
set aside by Congress in 1921 for the benefit of the native people of 
Hawaii under the Hawaiian Homes Commission Act. See Haw. Const. Art. 
XII, Sec. Sec. 2 and 4, and Art. XVI, 7, respectively.
    \37\Han v. United States, 45 F. 3d 333, 337 (9th Cir. 1995).
---------------------------------------------------------------------------

Treatment of Native Hawaiians compared to other indigenous groups

    The two most significant actions of the United States as 
they relate to the native people of Hawaii must be understood 
in the context of the Federal policy towards America's other 
indigenous people.
    In 1921, when the Hawaiian Homes Commission Act was enacted 
into law, the prevailing Federal Indian policy was premised 
upon the objective of breaking up Indian reservations and 
allotting lands to individual Indians. Those reservation lands 
remaining after the allotment of lands to individual Indians 
were opened up to settlement by non-Indians, and significant 
incentives were authorized to make the settlement of former 
reservation lands attractive to non-Indian settlers. Indians 
were not declared citizens of the United States until 1924. A 
twenty-year restraint on the alienation of allotted lands was 
typically imposed. This restraint prevented the lands from 
being subject to taxation by the states, but the restraint 
could be lifted if an individual Indian was deemed to be 
``civilized.'' Once the restraint on alienation was lifted and 
individual Indian lands became subject to taxation, Indians who 
could not pay the land taxes had their land seized.
    This allotment era of Federal policy was responsible for 
the alienation of nearly half of all Indian lands nationwide-
hundreds of millions of acres of lands were no longer in native 
ownership, and hundreds of thousands of Indian people were 
rendered not only landless but homeless. The primary objective 
of the allotment of lands to individual Indians was to 
``civilize'' native people. The fact that the United States 
thought to impose a similar scheme on the native people of 
Hawaii in an effort to ``rehabilitate a dying race'' is thus 
readily understandable in the context of the prevailing Federal 
Indian policy in 1921.
    In 1959, when the State of Hawaii was admitted into the 
Union, the Federal policy toward the native peoples of America 
was designed to divest the Federal government of its 
responsibilities for the indigenous people and to delegate 
those responsibilities to the several states. A prime example 
of this Federal policy was the enactment of Public Law 83-280, 
an Act which vested criminal jurisdiction and certain aspects 
of civil jurisdiction over Indian lands to certain states. 
Similarly, in 1959 the United States transferred most of its 
responsibilities related to administering the Hawaiian Homes 
Commission Act to the new State of Hawaii. In addition the 
United States imposed a public trust upon the lands that were 
ceded to the State for five purposes, one of which was the 
betterment of conditions for Native Hawaiians.

Constitutional source of Congressional authority

    The United States Supreme Court has often addressed the 
scope of Congress' constitutional authority to address the 
conditions of native people and thus has ingrained Congress' 
role.\38\ Although the authority has been characterized as 
``plenary,''\39\ the Supreme Court has addressed the broad 
scope of the Congress' authority.\40\ It has been held to 
encompass not only the native people within the original 
territory of the thirteen states but also lands that have been 
subsequently acquired.\41\ The United States interactions with 
indigenous peoples have varied from group to group. The only 
general principles that apply to relations with the first 
inhabitants of this land is that they were dispossessed of 
their lands. They were often relocated to other lands set aside 
for their benefit. Their subsistence rights have been 
recognized under treaties and laws, but have not always been 
protected nor preserved. Although the relationship between the 
United States and its native people has not followed a fixed 
course, it is a history that reveals the special status of the 
indigenous people in America.
---------------------------------------------------------------------------
    \38\``The power of the general government over these remnants of a 
race once powerful, now weak and diminished in numbers, is necessary to 
their protection. As well as to the safety of those among whom they 
dwell. It must exist in that government, because it never has existed 
anywhere else, because the theater of its existence is within the 
geographical limits of the United States*** From their very weakness 
and helplessness, so largely due to the course of dealing of the 
Federal government with them, and the treaties in which it has been 
promised, there arises a duty of protection, and with its power. This 
has always been recognized by the executive, and by Congress, and by 
this court, whenever the question has arisen.'' United States v. 
Kagama, 118 U.S. 375 (1886).
    \39\Morton v. Mancari, 427 U.S. 535 (1974).
    \40\Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); 
United States v. Sioux Nation, 448 U.S. 371 (1980). The rulings of the 
Supreme make clear that neither the conferring of citizenship upon the 
native people, the allotment of their lands, the lifting of 
restrictions on alienation of native land, the dissolution of a tribe, 
the emancipation of individual native people, the fact that a group of 
natives may be only a remnant of a tribe, the lack of continuous 
Federal supervision over the Indians, nor the separation of individual 
Indians from their tribes would divest the Congress of its 
constitutional authority to address the conditions of the native 
people.
    \41\United States v. Sandoval, 231 U.S. 28 (1913).
---------------------------------------------------------------------------

Native Hawaiians and the meaning of ``Indian''

    Whether the reference was to ``aborigines'' or to 
``Indians,'' the Framers of the Constitution did not import a 
meaning to those terms as a limitation upon the authority of 
Congress, but as descriptions of the native people who occupied 
and possessed the lands that were later to become the United 
States--whether those lands lay within the boundaries of the 
original thirteen colonies, or any subsequently acquired 
territories. This construction is consistent with more than two 
hundred Federal statutes which establish that the aboriginal 
inhabitants of America are a class of people known as ``Native 
Americans'' and that this class includes three groups: American 
Indians, Alaska Natives and Native Hawaiians.
    The Congress's recognition of its power over Alaska Natives 
since the acquisition of the Alaskan territory,\42\ reflects 
its intent to exercise its constitutional power and 
responsibility regarding all Native American groups within the 
United States.
---------------------------------------------------------------------------
    \42\See Atr. III, Treaty of March 30, 1867, 15 Stat. 539.
---------------------------------------------------------------------------
    The treatment of Alaskan Eskimos is particularly 
instructive because the Eskimo peoples are linguistically, 
culturally, and ancestrally distinct from other American 
``Indians.'' Many modern scholars do not use the word 
``Indian'' to describe Eskimos or the word ``tribe'' to 
describe their nomadic family groups and villages. However, it 
seems unlikely that the Framers would recognize such a 
technical distinction in the common understanding of the time. 
Eskimos, like Native Hawaiians were aboriginal peoples; 
therefore, they were ``Indians.''\43\ Courts have supported 
this construction by recognizing ``that the term `Indians' 
includes all native people in the United States.''\44\ 
Congress's special power over aboriginal peoples is well 
established.\45\
---------------------------------------------------------------------------
    \43\See S. Rep. 107-66, at 35, footnotes 43 and 44 (2001); see also 
footnote 48, below.
    \44\Jon M. Van Dyke, The Political Status of Native Hawaiian 
People, 17 Yale L. & Pol'y Rev. 95 (1998) at 146 (citing Alaska Pac. 
Fisheries v. United States, 248 U.S. 78 (1918); Native Village of 
Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992); Alaska Chapter, Assoc. 
Gen. Contractors of America v. Pierce, 694 F.2d 1162 (9th Cir. 1982); 
Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976); Alaska v. Annette Island 
Packing Co., 289 F. 671 (9th Cir. 1923); Cape Fox Corp. v. United 
States, 4 Cl. Ct. 223 (1983); Aguilar v. United States, 474 F. Supp. 
840 (D. Alaska 1979); Eric v. HUD, 464 F. Supp. 44 (D. Alaska 1978); 
Naliielua v. State of Hawaii, 795 F. Supp. 1009 (D.Haw. 1990); and 
Ahuna v. Department of Hawaiian Home Lands, 640 P.2d 1161, 1168-69 
(Haw. 1982).
    \45\See 42 U.S.C. 11701(17) (``The authority of the Congress under 
the United States 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'').
---------------------------------------------------------------------------
    During the Founding Era and Constitutional Convention, the 
terms ``Indian'' and ``tribe'' were used to encompass the 
diversity of aboriginal peoples of the ``New World'' and the 
wide range of their social and political organizations. The 
Framers drafted the Constitution not to limit Congress's power 
over Indians, but to make clear the supremacy of Congress's 
power over Indian affairs. The Congress has exercised the power 
to promote the welfare of all Native American peoples, and 
foster the evolving means and methods of self-governance as 
exercised by Native people.
    This history is accurately reflected in nearly two 
centuries of U.S. Supreme Court jurisprudence. Beginning with 
Chief Justice Marshall, the Supreme Court has recognized the 
power of the United States to provide for the welfare, and to 
promote the self-governance of Indian peoples.
    Modern scholars might be puzzled whether Eskimos were 
Indians, or a separate and somewhat mysteriously distinct 
people on earth.\46\ Others might question whether the native 
people of Hawaii are ``Indians.'' Such distinctions would 
likely have been irrelevant to the Framers. The ``Indians'' 
were many peoples, with distinct languages, cultures and socio-
political organizations. Whatever their distinct cultures and 
governments, they were all ``Indians,'' for they were 
aboriginal inhabitants of the ``New World.''\47\
---------------------------------------------------------------------------
    \46\A.M. Joseph, Jr., The Indian Heritage of America 57 (rev. ed. 
1991); see also Oxford Dictionary (1st ed.) (``OED''), ``Indian'' 
(``The Eskimos * * * are usually excluded from the term * * *'').
    \47\As Hawaii Attorney General Mark J. Bennett stated in his 
written testimony submitted at the Committee's hearing on S.310 on May 
3, 2007 (citing Kuykendall's The Hawaiian Kingdom), Captain Cook and 
his crew, when arriving at the Hawaiian Islands in 1778, referred to 
the native people greeting his ships as ``Indians.'' See, Testimony of 
Hawaii Attorney General Mark J. Bennett Before the U.S. Senate 
Committee on Indian Affairs, May 3, 2007, at footnote 11.
---------------------------------------------------------------------------
    The important distinction between European settlers and 
Native American peoples, one which both groups acknowledged and 
understood, was political. The nations-to-nation relationship 
survived the settlement of the West, the Civil War Amendments 
to the Constitution, and two hundred years of Congressional 
action and judicial construction.

Indian tribes and blood quantum

    Although the aboriginal ``tribes'' or ``nations'' or 
``peoples'' were defined in part by common ancestry, their 
constitutional significance lay in their separate existence as 
``independent political communities.''\48\ The race of Indian 
peoples was constitutionally irrelevant. Native peoples were 
``nations,''\49\ and the relationship between the United States 
and the natives reflected a political settlement between 
conquered and conquering nations.
---------------------------------------------------------------------------
    \48\Worcester v. Georgia, 31 U.S. 515 (1832) at 559.
    \49\Id at 559-60.
---------------------------------------------------------------------------
    The Supreme Court has repeatedly made clear that Indian 
tribes are the political and familial heirs to ``once sovereign 
political communities,'' not ``racial groups.''\50\ The Court 
has long recognized that a tribe's ``right to determine its own 
membership'' is ``central to its existence as an independent 
political community.''\51\
---------------------------------------------------------------------------
    \50\United States v. Antelope, 430 U.S. 641, 646 (1972); see Fisher 
v. District Court, 424 U.S. 382, 389 (1976); Morton v. Mancari, 417 
U.S. 535, 553-4 (1974); see also Oklahoma Tax Comm'n v. Sac & Fox 
Nation, 508 U.S. 114, 123 (1993); United States v. Mazurie, 419 U.S. 
544, 557 (1975).
    \51\Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32 (1978); 
Cherokee Intermarriage Cases, 203 U.S. 76, 95 (1906); Boff v. Burney, 
168 U.S. 218, 222-3 (1897).
---------------------------------------------------------------------------
    Like the 561 Indian tribes currently recognized by the 
United States, Native Hawaiians are a group of people defined 
by their common descent from an ancestral class. Congress may 
recognize new aggregations of Native Americans, so long as such 
legislation is rationally related to the fulfillment of 
Congress's trust obligation to Indian people.\52\
---------------------------------------------------------------------------
    \52\United States v. John, 437 U.S. 634, 652-3 (1978); Moe v. 
Confederated Salish & Kootenai Tribes, 425 U.S. 463, 480 (1976).
---------------------------------------------------------------------------

The significance of ``federal recognition''

    It is important to recognize the legal distinctions that 
have been drawn in contemporary times between Indian tribes 
that are ``acknowledged'' by the Department of the Interior\53\ 
or ``recognized'' by Congress and those who are not 
``acknowledged'' or ``recognized.'' ``Recognized'' tribes have 
a direct government-to-government relationship with the United 
States and are thereby eligible for various federal benefits, 
whereas Native American groups that are not recognized do not 
have such a government-to-government relationship. This is a 
relatively recent phenomenon. ``[A] close scrutiny of the 
various executive orders, Congressional legislation, 
departmental policies, Solicitor's opinions, and judicial 
decisions since 1783 * * * discloses an astonishing oblivion of 
the need for an express declaration or statement regarding 
which Indian tribes were to be recognized, until the enactment 
of the Wheeler-Howard (Indian Reorganization) Act of 
1934,''\54\ thirteen years after the enactment of the Hawaiian 
Homes Commission Act. In fact, there was no systematic 
procedure by which a Native American group could petition the 
United States for recognition until 1978, when regulations were 
promulgated to implement the Federal Acknowledgment 
process.\55\
---------------------------------------------------------------------------
    \53\See 25 C.F.R. Part 83.
    \54\William W. Quinn, Jr., Federal Acknowledgment of American 
Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. 
Leg. Hist. 331, 332 (1990) (citing 48 Stat. 984 (1934) (codified as 
amended at 25 U.S.C. 461 et seq.)); see generally, William W. Quinn, 
Jr., Federal Acknowledgment of American Indian Tribes: Authority, 
Judicial Interposition, and 25 C.F.R. 83, 17 Am. Indian L. Rev. 37 
(1992); L.R. Weatherhead, What is an ``Indian Tribe''? The Question of 
Tribal Existence, 8 Am. Indian L. Rev. 1 (1980).
    \55\25 C.F.R., Part 83. Quinn 1992, at 40-41.
---------------------------------------------------------------------------
    Although the authority of Congress to formally 
``recognize'' tribes through legislation is unquestioned, the 
Department of the Interior's regulations for the administrative 
process for the acknowledgement of tribes pursuant to 25 C.F.R. 
Part 83 exclude Native Hawaiians from that process, and thus 
legislation is the only mechanism available to Native Hawaiians 
at this time.\56\
---------------------------------------------------------------------------
    \56\See 25 C.F.R. 83.1, 83.3 (administrative process available only 
to groups within the ``continental United States,'' defined as the 
``contiguous 48 states and Alaska''). Native Hawaiians have twice 
sought unsuccessfully to challenge their exclusion from this process. 
Price v. State of Hawaii, 764 F.2d 623 (9th Cir. 1985); Kahawaiolaa v. 
Norton, 222 F.Supp. 2d 1213 (D. Haw. 2002).
---------------------------------------------------------------------------

                          NEED FOR LEGISLATION

    The primary injury that S. 310 is intended to address is 
the loss of a sovereign governing entity resulting from the 
1893 overthrow of the government of the Kingdom of Hawaii, an 
event made possible by the actions of United States officials 
and citizens. Congress has consistently recognized Native 
Hawaiians as among the Native people of the United States on 
whose behalf it may exercise its powers under the Indian 
Commerce Clause. However, it has not yet acted to provide a 
process for the reorganization of a Native Hawaiian governing 
entity. S. 310 provides authority for that process.
    In 1978, in furtherance of the provisions of the Admission 
Act, the citizens of the State of Hawaii amended the State 
constitution to provide for the establishment of a quasi-
independent State agency, the Office of Hawaiian Affairs (OHA). 
The State constitution, as amended, provides that the OHA is to 
be governed by nine trustees whoare Native Hawaiian and who are 
to be elected by Native Hawaiians. In accordance with laws enacted by 
the State following the 1978 constitutional amendment, OHA administers 
programs and services using revenues derived from the Ceded Lands 
consistent with the conditions of Sec. 5 of the Admission Act and 
Public Law 88-233.
    OHA's use of these revenues to provide programs and 
services for Native Hawaiians reflects the provision in section 
5(f) of the Admission Act requiring that the ceded lands and 
the revenues derived therefrom be held by the State of Hawai'i 
as a public trust for five stated purposes, one of which is the 
betterment of the conditions of native Hawaiians. The Admission 
Act also provides that the new State assumes a trust 
responsibility for the approximately 203,500 acres of land set 
aside for Native Hawaiians pursuant to the Hawaiian Homes 
Commission Act.
    On February 23, 2000, the United States Supreme Court 
issued a ruling in the case of Rice v. Cayetano, holding 
unconstitutional the eligibility requirements for voting in 
elections of OHA trustees. The Court held that because OHA is 
an agency of the State of Hawaii, funded in part by 
appropriations made by the State legislature, the election for 
the trustees of the OHA must be open to all citizens of the 
State of Hawaii who are otherwise eligible to vote in statewide 
elections.
    The State of Hawaii had argued in Cayetano that the state 
law excluding non-Hawaiians from voting in OHA elections should 
be analyzed in accordance with the Court's rule enunciated in 
Morton v. Mancari, wherein the Court upheld against an equal 
protection challenge the policy for Indian preference in hiring 
within the Bureau of Indian Affairs. The Cayetano Court 
rejected the State's Mancari argument, reasoning as follows:

    If a non-Indian lacks a right to vote in tribal elections, 
it is for the reason that such elections are the internal 
affair of a quasi sovereign. The OHA elections, by contrast, 
are the affair of the State of Hawaii, established by the State 
Constitution, responsible for the administration of state laws 
and obligations.''

    Following the Supreme Court's decision in Cayetano, new 
civil actions were filed challenging the constitutionality of 
other aspects of OHA as well as Hawaii's provision of programs 
and services to Native Hawaiians. In Arakaki v. State of 
Hawaii, the Court of Appeals for the Ninth Circuit ruled that 
the State law requiring candidates for the OHA Board of 
Trustees to be Native Hawaiian was unconstitutional on grounds 
similar to those in Cayetano. Accordingly, all citizens of the 
State of Hawaii may now vote for the candidates for the nine 
trustee positions and may themselves be candidates for these 
offices.
    Other civil actions filed since the Cayetano decision have 
gone beyond the voting rights issues raised in that case and in 
Arakaki v. Hawaii. These other cases target the provision of 
programs and services to Native Hawaiians by OHA, the Hawaiian 
Homes Commission and the Department of Hawaiian Home Lands on 
the grounds that providing benefits exclusively to Native 
Hawaiians is racially discriminatory under the Equal Protection 
clauses of the Fifth and Fourteenth Amendments.
    S. 310 establishes a process that would lead eventually to 
the formation of a native governing entity that would have a 
government-to-government relationship with the United States. 
Eventually, the programs and services or a portion of them now 
provided by OHA in furtherance of the provisions of the 
Admission Act may likely be provided instead by the Native 
Hawaiian governing body to its members. That is, to persons who 
have a political affiliation with a federally recognized Native 
Hawaiian governing entity with which the United States would 
have a formal, government-to-government relationship, so that 
equal protection challenges to those programs and services 
would be subject to the analysis of Morton v. Mancari.
    Accordingly, apart from providing Native Hawaiians with a 
vehicle for reorganizing a governing entity through which they 
might, as have other native peoples in the United States, 
pursue the goals of self-determination and greater control over 
the future of their own resources and culture, another purpose 
of S. 310 is to assure that the longstanding Congressional 
policy of protecting and advancing the interests of Native 
Hawaiians--dating back at least to the 1921 Hawaiian Homes 
Commission Act--and the bargained-for conditions that were made 
part of the 1959 compact that led to the admission of the State 
of Hawaii into the Union, are not ultimately frustrated as a 
result of these recent legal challenges.


                      section-by-section analysis


Section 1. Short title
    Section 1 sets forth the short title for the bill as the 
``Native Hawaiian Government Reorganization Act of 2007.''
Section 2. Findings
    Section 2 sets forth findings, including findings regarding 
the history of Native Hawaiians; their interactions with the 
United States; Congress's authority over Native Hawaiians; 
Congress's past declaration of the political and legal 
relationship with Native Hawaiians; and Native Hawaiians' 
expression of their rights to self-determination, self-
governance, and economic self-sufficiency.
Section 3. Definitions
    Section 3 sets forth definitions of terms used in this Act, 
including definitions for the term ``Aboriginal, Indigenous, 
Native People'' and ``Native Hawaiian.'' The term ``Aboriginal, 
Indigenous, Native People'' is defined as the ``people whom 
Congress has recognized as the original inhabitants of the 
lands that later became part of the United States and who 
exercised sovereignty in the areas that later became part of 
the United States.'' The term ``Native Hawaiian'' is generally 
defined as ``an individual who is 1 of the indigenous, native 
people of Hawaii and who is a direct lineal descendant 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 occupied and exercised sovereignty in the 
Hawaiian archipelago, including the area that now constitutes 
the State of Hawaii ; or an individual who is 1 of the 
indigenous, native people of Hawaii and who was eligible in 
1921 for the programs authorized by the Hawaiian Homes 
Commission Act (42 Stat. 108, chapter 42) or a direct lineal 
descendant of that individual.''
Section 4. United States policy and purpose
    Section 4 reaffirms policies of the United States, 
including that Native Hawaiians are indigenous, native people; 
the United States has a political and legal relationship with 
Native Hawaiians; that Congress has the authority under Article 
I, section 8, clause 3 of the United States Constitution to 
enact legislation to address the conditions of Native Hawaiians 
and has done so in more than 150 Federal laws; that Native 
Hawaiians have an inherent right to autonomy in their internal 
affairs, an inherent right of self-determination and self-
governance, the right to reorganize a Native Hawaiian governing 
entity, and the right to become economically self-sufficient; 
and that the United States shall continue to engage in the 
process of reconciliation and political relations with Native 
Hawaiians.
    This section also sets forth the purpose of the Act, which 
is to provide a process for the reorganization of the single 
Native Hawaiian governing entity and the reaffirmation of the 
special political and legal relationship between the United 
States and that Native Hawaiian governing entity for purposes 
of continuing a government-to-government relationship.
Section 5. United States Office for Native Hawaiian Relations
    Section 5 establishes the United States Office for Native 
Hawaiian Relations (Office) in the Office of the Secretary of 
the Department of Interior and sets forth the duties of the 
Office. The duties include continuing the process of 
reconciliation with Native Hawaiians; effectuating and 
coordinating the political and legal relationship between the 
Native Hawaiian governing entity and the United States; 
consulting with the Native Hawaiian governing entity before 
taking any actions that may have the potential to significantly 
affect Native Hawaiian resources, rights, or lands; consulting 
with the Interagency Coordinating Group, other Federal 
agencies, and the State of Hawaii on policies, practices, and 
proposed actions affecting Native Hawaiian resources, rights, 
or lands; and preparing and submitting an annual report 
containing certain information to specified Committees of 
Congress and providing recommendations for any necessary 
changes to Federal law or regulations.
    This section does not apply to the Department of Defense 
but the Secretary of Defense may designate one or more 
officials as liaison to the Office.

Section 6. Native Hawaiian Interagency Coordinating Group

    Section 6 establishes the Native Hawaiian Interagency 
Coordinating Group, which is to be composed of officials from 
each Federal agency that administers Native Hawaiian programs, 
establishes or implements policies that affect Native 
Hawaiians, or whose actions may significantly or uniquely 
impact Native Hawaiian resources, rights, or lands, and the 
Office for Native Hawaiian Relations. The specific duties of 
the Interagency Coordinating Group are set forth but, 
generally, the Group will coordinate Federal programs and 
policies affecting Native Hawaiians and consult with the Native 
Hawaiian governing entity.
    This section does not apply to the Department of Defense 
but the Secretary of Defense may designate one or more 
officials as liaison to the Interagency Coordinating Group.

Section 7. Process for the reorganization of the Native Hawaiian 
        Governing Entity and the reaffirmation of the special political 
        and legal relationship between the United States and the Native 
        Hawaiian Governing Entity

    Section 7 addresses the process for the reorganization of 
the Native Hawaiian governing entity and provides for the 
reaffirmation of the political and legal relationship between 
the United States and the Native Hawaiian governing entity.
    This section recognizes the right of Native Hawaiians to 
reorganize a single Native Hawaiian governing entity to provide 
for their common welfare and to adopt appropriate organic 
governing documents. A Commission composed of 9 members is 
established to prepare and maintain a roll of the adult members 
of the Native Hawaiian community who elect to participate in 
the reorganization of a single Native Hawaiian governing entity 
and to certify that the adult members of the Native Hawaiian 
community, who have submitted sufficient documentation and are 
proposed for inclusion on the roll, meet the definition of 
``Native Hawaiian.''
    Commission members will be appointed by the Secretary of 
the Interior not later than 180 days after the date of 
enactment of the Act. In making an appointment, the Secretary 
must take into consideration any recommendation made by any 
Native Hawaiian organization. Commission members must have at 
least 10 years of experience in the study and determination of 
Native Hawaiian genealogy and an ability to read and translate 
into English documents written in the Hawaiian language.
    The Commission will receive compensation for its work and 
may appoint personnel as necessary to enable the Commission to 
perform its duties. An employee of the Federal government may 
be detailed to the Commission.
    Duties of the Commission include preparing and maintaining 
a roll of the adult members of the Native Hawaiian community 
and certifying to the Secretary that each of the adult members 
proposed for inclusion on the roll meet the definition of 
``Native Hawaiian'' set forth in this Act. The certified roll 
shall be published in the Federal Register. An appeal mechanism 
may be established by the Secretary of the Interior for any 
person whose name is excluded from the roll but who claims to 
meet the definition of ``Native Hawaiian.'' The Secretary is 
responsible for updating the roll.
    The adult members listed on the certified roll may develop 
criteria for candidates to serve on the Native Hawaiian Interim 
Governing Council, determine the structure of the Council, and 
elect members of the Native Hawaiian community to serve on the 
Council. This section sets forth the powers and activities of 
the Council, which include developing organic governing 
documents for the Native Hawaiian governing entity and holding 
elections to ratify such organic documents.
    Following ratification, the organic governing documents 
shall be submitted to the Secretary. The Secretary must certify 
that the organic documents contain certain information, 
including criteria for citizenship in the Native Hawaiian 
governing entity; civil rights protection for citizens of the 
Native Hawaiian governing entity and all persons affected by 
the exercise of governmental powers and authorities by the 
Native Hawaiian governing entity; and that the organic 
documents are consistent with applicable Federal law and the 
special political and legal relationship between the United 
States and the indigenous, native people of the United States.
    Upon certification of the organic governing documents and 
the election of officers of the Native Hawaiian governing 
entity, the political and legal relationship between the United 
States and the Native Hawaiian governing entity will 
automatically be reaffirmed and Federal recognition shall be 
extended to the Native Hawaiian governing entity.

Section 8. Reaffirmation of delegation of Federal authority; 
        negotiations; claims

    Section 8 reaffirms the delegation of authority to the 
State of Hawaii to address the conditions of Native Hawaiians. 
It provides that upon reaffirmation of the political and legal 
relationship between the United States and the Native Hawaiian 
governing entity, the United States and the State of Hawaii may 
negotiate with the Native Hawaiian governing entity on certain 
issues. Negotiation topics include the transfer of lands, 
natural resources, and other assets, and the protection of 
existing rights related to such lands or resources; the 
exercise of governmental authority over any transferred lands, 
natural resources, and other assets, including land use; the 
exercise of civil and criminal jurisdiction; the delegation of 
governmental powers and authorities to the Native Hawaiian 
governing entity by the United States and the State of Hawaii; 
any residual responsibilities of the United States and the 
State of Hawaii; and grievances regarding assertions of 
historical wrongs committed against Native Hawaiians by the 
United States or by the State of Hawaii. Upon agreement of any 
matters, the parties may submit proposed amendments to Federal 
or State law to the Congress or the State of Hawaii, 
respectively. Any governmental power or authority of the Native 
Hawaiian governing entity which is currently exercised by the 
State or Federal Governments shall only be exercised by the 
Native Hawaiian governing entity as agreed to in negotiations 
under this section.
    Additionally, this section provides that this Act does not 
create a cause of action against the United States or any other 
entity or person; alter existing law regarding obligations on 
the part of the United States or the State of Hawaii with 
regard to Native Hawaiians or any Native Hawaiian entity; 
create obligations that did not exist in any source of Federal 
law prior to the date of enactment of this Act; or establish 
authority for the recognition of more than one Native Hawaiian 
governing entity. In addition, nothing in this Act creates any 
breach-of-trust actions, land claims, resource-protection or 
resource-management claims by or on behalf of Native Hawaiians 
or the Native Hawaiian governing entity and the United States 
retains its sovereign immunity from suit to any claim that 
exists prior to enactment of this Act which could be brought by 
Native Hawaiians or a Native Hawaiian governing entity. Any 
claims that may have already accrued and may be brought against 
the United States shall be rendered nonjusticiable.
    The State of Hawaii also retains its sovereign immunity 
unless waived in accordance with State law. Finally, nothing in 
this Act may be construed as overriding section 5 of the 
Fourteenth Amendment or State sovereign immunity held under the 
Eleventh Amendment.

Section 9. Applicability of certain Federal laws

    This section prohibits the Native Hawaiian governing entity 
and Native Hawaiians from conducting gaming as a matter of 
claimed inherent authority or under any Federal law, including 
the Indian Gaming Regulatory Act in the State of Hawaii or 
within any other State or Territory of the United States.
    The Secretary may not take land into trust for Native 
Hawaiians or on behalf of the Native Hawaiian governing entity. 
It makes clear that the Indian Trade and Intercourse Act does 
not, has never, and will not apply after enactment to lands or 
land transfers present, past, or future, in the State of 
Hawaii. If a Court construes otherwise, any land transfers 
before the date of enactment of this Act shall be deemed to 
have been made in accordance with the Indian Trade and 
Intercourse Act.
    Only one Native Hawaiian governing entity may be recognized 
pursuant to this Act. Any other groups shall not be eligible 
for the Federal Acknowledgment Process.
    Nothing in this Act alters the civil or criminal 
jurisdiction of the United States or the State of Hawaii over 
lands and persons within the State of Hawaii, unless otherwise 
negotiated pursuant to section 8.
    Native Hawaiians shall not be eligible for programs and 
services available to Indians unless otherwise provided under 
applicable Federal law. The Native Hawaiian governing entity 
and its citizens shall be eligible for Native Hawaiian programs 
and services to the extent and in the manner provided by other 
applicable laws.

Section 10. Severability

    The section provides that if any section or provision of 
this Act is found to be invalid, the remaining sections or 
provisions shall continue in full force and effect.

Section 11. Authorization of appropriations

    This section authorizes such sums as necessary to carry out 
this Act.

                          LEGISLATIVE HISTORY

    S. 310 was introduced on January 17, 2007, by Senator Akaka 
for himself and Senators Inouye, Cantwell, Dodd, Murkowski, 
Stevens, Coleman, Dorgan, and Smith, and referred to the 
Committee on Indian Affairs. Senator Klobuchar became a 
cosponsor on December 3, 2007. A hearing was held before the 
Committee on Indian Affairs on May 3, 2007. On May 10, 2007, 
the bill was ordered by the Committee to be favorably reported 
without amendment to the full Senate.
    A House companion measure to S.310, H.R. 505, was 
introduced on January 17, 2007, by Representative Abercrombie, 
and referred to the Committee on Natural Resources. On May 2, 
2007, the Natural Resources Committee met to consider the bill. 
The bill was ordered favorably reported to the House of 
Representatives by voice vote. The bill passed the House on 
October 24, 2007.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    On May 10, 2007, in an open business meeting, the Committee 
considered S.310 and ordered the bill to be favorably reported, 
without amendment, to the Senate by voice vote.

                   COST AND BUDGETARY CONSIDERATIONS

    The cost estimate of the Congressional Budget Office on S. 
310 is set forth below:

S. 310--Native Hawaiian Government Reorganization Act of 2007

    S. 310 would set forth a process for establishing and 
recognizing a Native Hawaiian governing entity that would act 
on behalf of its members with the state and the federal 
government. CBO estimates that implementing S. 310 would cost 
about $1 million per year over the 2008-2010 period and less 
than $500,000 in each subsequent year, assuming the 
appropriation of the necessary funds. Enacting the bill would 
not affect direct spending or revenues.
    The bill would establish the United States Office for 
Native Hawaiian Relations within the Department of the Interior 
(DOI). This office would be responsible for developing and 
overseeing the federal relationship with the Native Hawaiian 
governing entity. Based on information from DOI, CBO expects 
that this office would require up to three full-time staff. S. 
310 also would create a nine-member commission responsible for 
collecting and certifying a membership roll of adult Native 
Hawaiians. Based on the deadlines specified in the bill as well 
as information from DOI, CBO expects that this commission would 
need three years and three full-time staff to complete its 
work.
    S. 310 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Enacting this legislation could lead to the creation of a new 
government to represent native Hawaiians. The transfer of any 
land or other assets to this new government, including land now 
controlled by the state of Hawaii, would be the subject of 
future negotiations.
    On May 15, 2007, CBO transmitted a cost estimate for H.R. 
505, the Native Hawaiian Government Reorganization Act of 2007, 
as ordered reported by the House Committee on Natural Resources 
on May 2, 2007. The two versions of the bill are similar, and 
our cost estimates are the same.
    The CBO staff contacts for this estimate are Daniel Hoople 
(for federal costs) and Marjorie Miller (for the impact on 
state, local, and tribal governments). This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee held a hearing on S. 310 on May 3, 2007, at 
which Gregory G. Katsas, Principal Deputy Associate Attorney 
General, presented a statement on behalf of the Administration. 
In this statement, Mr. Katsas acknowledged that many of the 
Administration's concerns with previous versions of the Native 
Hawaiian Government Reorganization Act had been addressed in S. 
310, but that the Administration continued to have ``broader 
policy and constitutional concerns'' with S. 310. These 
concerns are described in Mr. Katsas' statement, which was made 
a part of the hearing record for the Committee.
    After the hearing, written questions were submitted to Mr. 
Katsas by the Committee. The Department of Justice provided 
responses to these questions on July 23, 2007. These responses 
are included in the Committee files.

                    REGULATORY AND PAPERWORK IMPACT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 310 will 
have a minimal impact on regulatory or paperwork requirements.

                        CHANGES TO EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
provisions of S. 310 do not affect any change in existing law.