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Monday, March 29, 2010
Cayetano’s State of Hawaii, 1998: ‘‘the tribal concept simply has no place in the context of Hawaiian history’’
By News Release @ 7:43 PM :: 6301 Views :: Energy, Environment, National News, Ethics

The US Senate Indian Affairs committee last week released its report on the March 11 Committee deliberations on the New Akaka Bill (S1011).  At the end of the 46 page report are comments from three Republican US Senators in opposition. 

Sen Tom Coburn (R-OK) quotes some very interesting statements by the State of Hawaii under Cayetano, defending Hawaiians-only OHA elections against the Rice v Cayetano lawsuit and also by Sen Dan Inouye, 2005. 

Sen. John Barrasso (R-WY) hits the nail on the head regarding the political exclusivity of the new category of tribal members known as, “Qualified Native Hawaiian Constituents.” 

We have underlined these comments and also include the statement of Senator John McCain (R-AZ).

FULL TEXT of report:

RELATED: Akaka Bill: More than 73% of Hawaiians not "Qualified" for membership in Akaka Tribe

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I want to thank my colleagues for this opportunity to express my grave concerns with S. 1011, ‘‘the Native Hawaiian Government Reorganization Act,’’ now being reported by the Indian Affairs Committee.

As my colleagues on the committee know well, this bill has been around for some time. I have many serious objections to this bill, and have submitted a series of documents to the Committee outlining most of those concerns.

I will focus my many comments on the one question that matters most: Does Congress have the Constitutional authority to take this unprecedented action?


Section 2 of this bill reads: ‘‘Congress finds that—(1) the Constitution vests Congress with the authority to address the conditions of the indigenous, native people of the United States;’’. 

Section 4 reads, in part: ‘‘Congress possesses the authority under the Constitution, including but not limited to Article I, section 8, clause 3, to enact legislation to address the conditions of Native Hawaiians.’’

Since it is the only provision of our Constitution specifically mentioned in the bill, I think it is important that senators read Article I, Section 8, Clause 3:

‘‘Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;’’.

In other words, this entire bill rests upon the ability of Congress to regulate commerce with Indian tribes.

Supporters of this bill will argue that ‘‘Indian tribes’’ also refers to ‘‘indigenous peoples.’’ I adamantly disagree with that interpretation, and while each senator will have to decide this issue based on their reading of the Constitution and their Oath, I believe the historical record is clear.

I have submitted volumes of information in the official committee hearing record from constitutional scholars and historians that underscore this lack of authority and the serious harm this precedent will establish. I encourage my colleagues to examine those documents in detail. The evidence is quite clear.

Ironically, many of the bill’s strongest opponents have previously agreed with these concerns. For instance:

In 1998, the State of Hawaii (now one of the strongest supporters of the bill—expending considerable resources) had this to say in a brief before the U.S. Supreme Court: ‘‘the tribal concept simply has no place in the context of Hawaiian history.’’ (1)

Senator Inouye—one of the most respected men to ever serve on the Indian Affairs Committee—had this to say: ‘‘Because the Native Hawaiian government is not an Indian tribe, the body of Federal Indian law that would otherwise customarily apply when the United States extends Federal recognition to an Indian tribal group does not apply.’’

Senator Inouye went on to say: ‘‘. . . That is why concerns which are premised on the manner in which Federal Indian law provides for the respective governmental authorities of the state governments and Indian tribal governments simply don’t apply in Hawaii.’’ (2)

In other words, the very foundation on which this bill is based—Congress’ ability to regulate commerce among Indian tribes—is highly questionable.

On the one hand, the authors of this bill claim that Native Hawaiians are an ‘‘Indian tribe’’ as a basis for Constitutional authority, and on the other hand, claim it is in fact NOT an ‘‘Indian tribe’’ for purposes of Indian law.

If the statements of the bill’s supporters are accurate, it is not even clear whether the Indian Affairs Committee had proper jurisdiction to review this bill.  There simply is no comparison to Indian tribes, or even to Alaska Native Corporations.  This bill does not restore ‘‘tribal status’’ where it once existed; It creates an entirely new government based solely on race.

The Kingdom of Hawaii was a diverse society and government (much like the state today). The new ‘‘tribe’’ will not reflect that tradition and will create a government just for those deemed ‘‘indigenous.’’  Unlike the many Indian tribes in my state whose governments were subsequently terminated, no such history exists for a Native Hawaiian entity.

American Indians were not even formally given full citizenship until 1924. (3) In contrast, Native Hawaiians became citizens of this country in 1900, twenty four years earlier. (4) Native Hawaiians took part in the referendum that brought Hawaii into the Union as a state, and as one government.

In Oklahoma, and even in Alaska, there were distinct tribal populations with existing governments at the time of statehood. That was not the case in Hawaii. In Alaska, distinct tribal communities existed at the time of statehood and were addressed in that state’s organic documents. Again, that is not the case in Hawaii.


If the Native Hawaiians are entitled to sovereign tribal government status, as this bill presupposes, the solution is quite simple.  As many of my colleagues know, the federal government already has in place an established and rigorous seven step process for recognition of tribal governments. This review is handled by the Office of Federal Acknowledgement (OFA).  This process is applied evenly to all who apply, and takes politics out of the equation. 

This committee should take the supporters of Native Hawaiian governmental recognition at their word. If they are indeed a distinct Indian community with historic ties to the federal government, and who has continued to exercise continuous governmental authority after an official termination, a Native Hawaiian entity should submit an application to OFA. If it believes it is not eligible for this process, Congress can easily authorize it to submit an application.


Even though the Committee has officially reported S. 1011, it is my hope that the people of Hawaii—those most immediately impacted by this bill—will have an opportunity to have their voices heard in Congress. While I mean no disrespect to the panelists who have testified during the legislative hearing, it is clear that those most strongly favoring the creation of a separate Native Hawaiian government have had a dominant voice.

Further, the last minute changes made to this bill during the business meeting have heightened my concerns and should give the State of Hawaii considerable heartburn. The amendment in the nature of a substitute will severely weaken the sovereignty of the State of Hawaii and place it on a path towards two separate Hawaiis—one subject to the Constitution of the United States and built on the proudest traditions of American diversity and the other with undefined ‘‘inherent’’ authority that will reshape the State of Hawaii, and place many of its residents outside the full protections of the Bill of Rights.

In an effort to preserve subsidies put in place for Native Hawaiians and jeopardized by recent Court decisions, this Congress is being asked to act outside of its Constitutional bounds and completely redefine the Indian Commerce Clause. This is a dangerous precedent for our nation.

There are dozens of senators, including me, who believe this bill is a violation of our oath to the Constitution and a major affront to the Indian tribes in our states who have labored to regain their recognition.

The road ahead for this bill will not be an easy one. I, along with many of our colleagues, will never give unanimous consent to moving forward on this bill.



1 Brief in opposition to Petition for Writ of Certiorari at p. 18, Rice v Cayetano, 528 US 495


2 Inouye, Daniel Senator, ‘‘Statement on Introduced Bills and Resolutions.’’ January 25, 2005.



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I have given my views on this bill, S. 1011, during the Committee’s hearing in August of 2009 and during the business meeting last December during which the Committee approved by voice vote the substitute amendment: I cannot support this bill.

There are many aspects of the substitute amendment that are either troubling or give me great pause, but for purposes of this statement of additional views I will confine my remarks to what I think is the principal problem of this bill, both as introduced and as it would be amended by the substitute. In short, the bill presupposes that the group, entity or organization that would emerge from the process authorized in the bill is an ‘‘Indian tribe’’ within the meaning of the United States Constitution, or is at least the functional equivalent of an Indian tribe for constitutional purposes.  That is a presupposition that I am unable and unwilling to make.

Many people take the position that, as a matter of law and fact and history, Native Hawaiians simply cannot be recognized as a group in the same way that Indian tribes are recognized. On the other hand, many others take the position that indeed Native Hawaiians can be recognized that way, as a group that is functionally and legally the equivalent of an American Indian tribe. In our Committee hearings on this and prior versions of the Native Hawaiian recognition bill we have heard from proponents of both sides of the question.

During the Committee hearing on S. 1011 in August of 2009, Professor Stuart Minor Benjamin of Duke Law School submitted testimony suggesting that the question whether a Native Hawaiian government can or should be federally recognized is an exceedingly difficult one, fraught with many legal and constitutional issues that deserve serious consideration.

The significance of Federal recognition of an Indian tribe is far reaching—for the tribe, for its members, and for the United States.

That is why we have an administrative recognition process in the Department of the Interior: to determine which native groups should be recognized by the Federal government as Indian tribes, and which native groups should not. The analysis that goes into that determination is very exacting, covering a number of historical, ethnographic, and other relevant factors relating to the tribal group and its members.

I appreciate that the substitute amendment includes provisions that would impose a number of new requirements for enrollment to participate in the referendum process authorized by the bill.  These new requirements would likely limit the size of the population that would vote on the governing documents, including a requirement that, to be eligible to enroll, a person of Native Hawaiian descent also would have to provide evidence of minimum ties or relationships to ‘‘the Native Hawaiian community,’’ such as ties to certain Native Hawaiian lands, eligibility for benefits under the Hawaiian Homes Commission Act, or participation in Native Hawaiian organizations.(1)

Nevertheless, these new requirements seem rather minimal and arbitrary, and in any event give me little or no comfort that what we are coming up with in this bill is an Indian tribe, or the constitutional equivalent of an Indian tribe.(2)  I continue to believe that the best way to determine whether Native Hawaiians should be treated as an Indian tribe is not to have Congress deem them to be so as this bill would do but instead to authorize them to pursue the same administrative process at the Department of the Interior that other native groups must pursue, so that they, like these other groups, can make their best case for Federal recognition within that process.

S. 1011, as introduced and as embodied in the substitute amendment filed by Senator Akaka, jumps to the conclusion that the group that ultimately organizes under the bill should be treated like a federally recognized Indian tribe. Respectfully, I do not think that we, as members of this Committee and of the Senate, can or should make the determination that the Native Hawaiian governing entity should be treated as a federally recognized Indian tribe.

For that reason I cannot support this bill.



(1) See the definition of ‘‘qualified Native Hawaiian constituent’’ in section 3(12) of the substitute amendment. In addition to other requirements, this definition sets forth a list of 10 criteria, any 2 or more of which will suffice to demonstrate that the person maintains ‘‘a significant cultural, social, or civic connection to the Native Hawaiian community. . . .’’

(2) The reorganization process set forth in section 8 of the bill seems almost outcome determinative.  Would many ‘‘qualified Native Hawaiian constituents’’ who do not support recognition of a Native Hawaiian government gather the evidence of eligibility necessary to enroll under the substitute amendment, pursue the enrollment process, and then cast their votes against ratification of governing documents? Perhaps, but it seems highly unlikely. To the contrary, the process appears to be one that will tend to enroll those who favor recognition and not those who are either opposed or indifferent to recognition.  (Editor’s note: BINGO!)

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For years, the Senate Committee on Indian Affairs has been considering legislation that would establish a process for reorganization and federally recognizing a native Hawaiian government. I understand that this legislation has been offered in response to several concerns expressed by the members of the Hawaii delegation.  I am very much aware that one of the purposes of this legislation is to insulate current native Hawaiian programs from constitutional attack in the courts, and I am sympathetic to that purpose.

However, that does not change the fact that I have serious doubts about the wisdom of this legislation.

If enacted, S. 1011 would result in the formation of a sovereign government for Native Hawaiian people, which carries with it the privilege of sovereign immunity from lawsuits, and the powers to tax, to promulgate and enforce criminal code, and to exercise eminent domain. I cannot turn away from the fact that this bill bases this new nation exclusively—not primarily, not in part, but exclusively—on race. This approach has drawn criticism from the U.S. Commission on Civil Rights, which recommended against passage of a similar native Hawaiian bill, S. 147, during the 109th Congress, and warned that the proposal would ‘‘discriminate on the basis of race’’ and ‘‘further subdivide the American people into discrete subgroups accorded varying degrees of privilege.’’

The Constitution provides the federal government with the power to recognize tribes with a continuous history of separate self-governance, but it does not give it the power to reconstitute or create a new tribe made up of a collection of United States citizens demanding special status. Regrettably, at its core, this bill embraces the dangerous concept of conferring special privileges on one racial group over others. This is unacceptable to me, and it is unacceptable, I am sure, to most other citizens of this Nation who agree that we must continue our struggle to become and remain one people—all equal, all Americans.


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RELATED: Akaka Bill: More than 73% of Hawaiians not "Qualified" for membership in Akaka Tribe



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