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Ten ways of looking at the Akaka Bill

Editor's Note: The following are statements made before Congress.

Abercrombie: 'When the land wasn't worth anything, there was no argument'

Rep. Neil Abercrombie, D-Hawaii, House of Representatives Natural Resources Committee, May 2:

"Mr. Chairman [Rep. Nick Rahall, D-W. Va.] and members, this is a very big moment for me, I must tell you. Some of the members who have been here for a while know that this is the 48th year, from the time of [Hawaiian] statehood, that we are dealing with the issues involved in 505 [H.R. 505, in the House of Representatives, known also as the Akaka Bill, after Sen. Daniel Akaka, D-Hawaii]. This is the thirty-third year, myself, my personal involvement, since my election to the Hawaii state legislature in 1974, and my appointment to the Hawaiian committee on land, water and Hawaiian homes. And it was no coincidence that that original committee back in the Hawaii state legislature then in the 70s, had to do with water, had to do with the land, had to do with Hawaiian. Because that's the essence of this bill.

"I won't go into an extensive history in the brief time I have ... I've got five minutes to try and sum up 33 years of my life and what's involved in that. But I'm going to make an appeal particularly on the following basis, Mr. Chairman. I know that people vote for their reasons, not for mine. If someone votes with you, it's because they've made up their mind that there are reasons sufficient unto the day for them. And if they happen to be my reasons, all well and good. But believe me, we have drafted this legislation, and I have in particular over these last few years, with the direct idea of trying to appeal to my colleagues who may have had some questions raised about some of the issues involved. This is inherently a very conservative bill, and it's drafted accordingly. And the reason it is that I say that, and ask for your consideration, is that just today we've had bill after bill in which the issue has been raised [through proposed amendments to other bills than H.R. 505] about public land, about the government trying to increase the number of land[s], amount of land going to the government, of government control over land. What we're trying to do in Hawaii is get the government out of the lives of Native Hawaiians so that they can make their own decisions. The bottom line here is that this is a bill about the control of assets. This is about land, this is about money, and this is about who has the administrative authority and responsibility over it. And all this bill does is enable the Native Hawaiians to be able to come back to the Secretary of Interior and ask for permission to move ahead to take up the governance of the land and the funds that are in question.

"... Anybody, particularly from the West, understands what I am talking about. ... this member [Abercrombie], if nothing else, has been sensitive to issues associated with the peculiar and particular circumstances of how states became states in the West. We're dealing with issues of Native Americans. We're dealing with issues of, as to, how these definitions came about, what treaty obligations are, land issues. I have indicated to members previously, I know Mr. Cole [Rep. Tom Cole, R-Okla.] is well aware of it; we [Hawaii] came from being a kingdom to a shotgun republic, to a territory of the United States, to being a state 48 years ago, the last state to be admitted to the union. Part of the elements associated with the [Admission] Act which allowed us to become a state was specific recognition - we had to accept, in order to become a state of the union, we had to accept that the ceded lands, that is to say those lands which came from the kingdom [of old Hawaii] and passed through the shotgun republic and the territory, were going to pass to the state of Hawaii. This is 1.8 million acres of land ... ceded land. That was recognized because those lands have to be administered, among other reasons, for the benefit of Native Hawaiians. Also, in the 1920s ... the Congress passed the Hawaiian Homelands Act. Two hundred thousand acres of homesteads are there ... established by the Congress. That was also part of the Admissions Act. We had to recognize ... the previous action of the Congress in establishing the Hawaiian Homelands. Part of that requires that when we pass legislation, it comes through the Congress in order to be approved.

"So the Congress has recognized Native Hawaiians right from the very beginning, recognized it into the act, in the act of admission, which is one of the reasons why we're here. We tried to come to grips with the issue of dealing with the ceded lands with Hawaiian Homelands by establishing ... we established by constitutional amendment the Office of Hawaiian Affairs. And I'm pleased to say that the chairwoman of the Office of Hawaiian Affairs, Haunani Apoliona, is here with us today, elected by everyone in the state, elected by the Hawaiians and elected by everybody else. She's a Hawaiian at heart. We thought we had solved the question, we thought we had solved the issue, by establishing the Office of Hawaiian Affairs by state constitution. In that state constitutional amendment, everybody voted and decided we wanted the Native Hawaiians deciding who is going to run the Native Hawaiian affairs. Some folks didn't like that because it was a state agency. They went to court and said 'Everybody ought to vote.' And of course we said 'Everybody did vote. Everybody voted to let the Hawaiians run their own affairs.' 'That's not good enough, everybody's got to vote for the trustees, with the Office of Hawaiian Affairs.' Well, we had the Office of Hawaiian Affairs originally, when only the [Native] Hawaiians voted. They elected not only Hawaiians, but other people as well ... not Native Hawaiian. When the court ruled that we had to have everybody vote all over again, for all the trustees of the Office of Hawaiian Affairs, everybody in the state voted, and they elected all [Native] Hawaiians. ... So now it's all Hawaiians in there, because everybody wants to get this settled.

"... Everyone has recognized that the indigenous people of Hawaii, recognized in our constitution of the state, recognized by the United States government when we were admitted [as a] state of the union, is now ready to assume its proper conduct and role of administering the assets that I have mentioned, these two million acres, the hundreds of millions of dollars that are now in the coffers of the Office of Hawaiian Affairs and administered by them for the benefit of Native Hawaiians and the cash flow that's coming from the ceded lands, leases and so on, which amount to fifteen to twenty million dollars a year.

"I want to conclude by saying this. When the original ceded land was there, it wasn't worth anything. It didn't have the infrastructure on it. It didn't have the cachet for housing and all the rest. When the homestead land was put out there, it had no roads, it had no electricity, it had no sewer system, it had no infrastructure of any kind. So that when as you put up your homestead, you couldn't even be sure that you could get water. It wasn't worth anything. The leases weren't out there on the ceded land, like the airport now ... so there wasn't any money coming in.

"When the land wasn't worth anything, and when there was no money in the bank, and when there was no cash flow, nobody gave a damn what happened to the Native Hawaiians. There was no argument about discrimination or whether it was fair or not. But the second the land became worth something, the second that the homesteads were ripe for development, the second that the cash appeared, the second that the cash flow was there, then all of a sudden people got concerned about it.

"So what this [H.R. 505] amounts to, Mr. Chairman, is an opportunity to get the government out of the land control business, out of managing the asset, and returning this to the opportunity for the Native Hawaiians to bring themselves up. This is a self-development bill. This allows Native Hawaiians to take over their own assets, to build in education, to build in health care, to build in all the areas that they have sought to have control over, over their land and over the funds.

"So what I ask fundamentally is this: that I appeal to the members of this committee, both personally and institutionally, that this is an opportunity for us to recognize the last area of indigenous people in the United States for the opportunity to take over control of their own assets, to become masters and mistresses of their own destiny. And I think that this should be extended to anybody ... anybody who is eligible in that regard. And the bottom line is, is that this enabling legislation will allow the Hawaiians to put together their own organizational entity to be able to come back to the Secretary of Interior, having ensured that all civil rights have been taken care of, that everything has been negotiated between the state and the Native Hawaiians, and any other entity that has an interest, and that this will be incorporated into the state constitution. It cannot pass unless we amend our state constitution; it cannot pass unless the Department of Interior assures that all relevant laws, rules, regulations, have been certified constitutionally as far as the United States is concerned. ... This gives us the opportunity to give Hawaiians a chance to come to a final conclusion and resolution of all outstanding issues, and it fully protects every element of civil rights concern, of constitutional concern both from the federal government and from the point of view of the state of Hawaii.

"With that, Mr. Chairman, I thank you and ask the members for their kindness and courtesy - thank them for their kindness and courtesy in listening to my presentation."

Rep. Tom Cole, R-Okla.: 'This is rooted in what the people of Hawaii want to do'

Rep. Tom Cole, R-Okla., before the Natural Resources Committee in the House of Representatives, on behalf of the Akaka Bill, H.R. 505 in the House, May 2:

"I appreciate my good friend [Rep. Neil Abercrombie] from Hawaii's hard work on this. He really has reached across the aisle, and on point after point after point, has been willing to deal with questions, and objections. Frankly, he's shown a great deal more patience in this matter than I would have, had I been in his place. Some of these objections, quite frankly, have been silly, and just totally unfounded if you actually read the legislation.

"I think it's worth noting, you know, how much this is rooted in what the people of Hawaii want to do. You know, this legislation is supported by a Democratic congressional delegation and a Republican governor [Linda Lingle] ... I understand it's been through the Hawaiian legislature a couple of times and passed overwhelmingly on a bipartisan basis. So we ought to think twice about trying to stop ... people from doing what they want to do. And indeed as, again, my good friend pointed out, Mr. Abercrombie, we have passed this, and not just in a Democratic [majority] ... but in a Republican House ... both Democrat and Republican Houses have passed this legislation. ... This is an indigenous peoples issue, and the National Congress of American Indians is on record in support of this legislation, and most people that are associated with indigenous groups, you know, see this as simply an extension of long overdue recognition of the right to self-governance here.

"And you know, again, to those of my friends who are good conservatives, and I certainly consider myself one, this is the ultimate of conservative bills, as my friend says. It's about allowing the people to govern their own affairs, to control their own property and their own destiny. And indeed like I tell some of my friends, if you - anytime you ever swore, you know, allegiance to the Constitution of the United States, you swear allegiance to the whole idea of Native sovereignty. It's in there, Article 1, Section 8. That's the way in which our government has chosen to deal with indigenous peoples throughout our history, and that's the way frankly in which they have wanted to be dealt with. We've not always dealt with them fairly, not always been to their advantage to be dealt with that way, and ... usually, when the objections are raised, it's because we find it to their advantage to be dealt that way. And in this case that's an advantage that is long overdue. So I would just urge that we respect the wishes of the people of Hawaii, whether they're Native Hawaiian or not, and trust them to control and to govern their own affairs, and recognize that what they're asking for is not unusual, it's very much within our traditions of the country, it's very much solidly based constitutionally, it's been looked at goodness knows how many different times from how many different directions, it's been passed in a bipartisan fashion repeatedly, and it's long, long overdue.

"So I'm very proud to be here to vote in support of my friend's long, dedicated efforts to get this really important piece of legislation moving through the House, hopefully this time through the United States Congress and the whole thing."

Hawaii Attorney General Mark Bennett: 'Irrational for the Congress not to recognize Native Hawaiians'

Hawaii Attorney General Mark Bennett before the Senate Indian Affairs Committee, on behalf of the Akaka Bill, S. 310 in the Senate, May 3:

"Thank you very much for inviting me here to express my and [Hawaii] Governor [Linda] Lingle's strong support for S. 310. We believe that this bill is fair, equitable, just, constitutional, and with respect, long overdue. This bill enjoys strong bipartisan support in the state of Hawaii, including from the governor, the state legislature, our elected mayors and county councils.

"I start my analysis of this bill, as Hawaii's chief legal officer, from the organic document admitting Hawaii to the union, the Admissions Act, which contains within it specifically identified fiscal and trust obligations to Native Hawaiians imposed upon the state of Hawaii by this very Congress. Congress could not, would not, and did not condition Hawaii's entry into the union upon Hawaii's perpetuating unceasing violations of the 14th Amendment [defining U.S. citizenship and guaranteeing equal protection of the laws to all citizens]. The very concept is anathema to Hawaii's admission to the union. Nor has the Congress acted unconstitutionally for more than - for almost a century in passing more than 100 acts for the benefit of Native Hawaiians. The legal premise underlying the Department of Justice's testimony casts doubt on the constitutionality of all of these acts, all of which have been defended, when challenged, by the Department of Justice. Never, in the more than two centuries of this Republic, has the Supreme Court of the United States struck down the recognition of an aboriginal people by the Congress, pursuant to the Congress' authority under the Indian Commerce Clause of the Constitution. Indeed, the Supreme Court has stated that in affording recognition, the Congress must act rationally. Indeed, given the recognition that Congress has afforded all of America's other Native peoples, given that the framers of the Constitution itself would have described the aboriginal inhabitants of the Hawaiian archipelago as Indians, given the very crew members of Captain Cook, who made the first Western contact with Hawaii, described the inhabitants of the Hawaiian archipelago as Indians, a strong argument could be made that it would be irrational for the Congress not to recognize Native Hawaiians. The Supreme Court has specifically stated that the recognition afforded to our Native peoples is political and not racial, and this bill specifically states that the recognition afforded Native Hawaiians is of a type and nature of the relationship the United States has with the several federally recognized Indian tribes. And indeed, the specificity with which this recognition is described in the bill, no more and no less, is based on suggestions made in negotiations over the language of this bill with the Department of Justice.

"If there were any doubt as to the constitutionality of the Akaka Bill, I would respectfully suggest that that doubt was resolved by the recent United States Supreme Court decision in the Lara case. I find it curious that there is no citation to the Lara case in the Department of Justice's written testimony. In Lara, the Supreme Court described the powers of this Congress of recognition as quote, 'plenary and exclusive.' The court also said, quote, 'The Constitution does not suggest that the court should second-guess the political branch's own determinations.' As for Rice v. Cayetano, it was dealing with 15th Amendment [voting rights] questions, not the question of the power of the Congress to afford recognition under the Indian Commerce Clause. Indeed, I would suggest respectfully that the Congress should not let fears of judicial activism or overreaching deter it from fulfilling an obligation to the last remaining one of our nation's Native peoples not yet recognized.

"As the chair [Sen. Akaka] pointed out, we engaged in extensive negotiations with the administration, the Department of Justice, the Department of Interior and the Department of Defense over non-constitutional objections to the Akaka Bill. And all of those objections were resolved. And the language in the Akaka Bill today recognizes and addresses those objections. There can be no claims against the United States. The Native Hawaiian governing entity must recognize the civil rights of the citizens of the Native Hawaiian governing entity. And indeed, there is nothing in this bill to suggest the possibility of secession or separatism. Native Hawaiians, Mr. Chairman, do not seek specialized or privileged treatment. Like our nation's other patriotic Native peoples, Native Hawaiians have fought in wars and died for our country for almost one hundred years, including today in Iraq and Afghanistan. Native Hawaiians seek only treatment equal to that afforded to other Native Americans. The Akaka Bill affords Native Hawaiians that treatment, and I respectfully ask that you pass the Akaka Bill. Thank you."

Gregory Katsas for the Department of Justice: 'Troubling constitutional questions'

Gregory Katsas, Department of Justice principal deputy associate attorney general, on the Akaka Bill, S. 310 in the Senate, May 3:

"The bill broadly defines a separate class of Native Hawaiians to include all living descendants of the original Polynesian inhabitants of what is now modern-day Hawaii. Members of this class need not have any geographic, political, or cultural connection to Hawaii, much less to some discrete Native Hawaiian community. In fact, the class reference encompasses about four hundred thousand individuals, including a hundred thousand who do not live in Hawaii but are scattered throughout each of the 49 other states in the union. Members of the class are now diverse, racially, ethnically and culturally. They are set to be the subjects of a government that has not existed since the late 1800s. They are afforded the privilege of forming a separate government not because of actual membership in a discrete Native community, but because they have at least trace elements of Polynesian blood.

"The bill would grant broad governmental powers to this racially defined group. In essence, Native Hawaiians would be authorized to conduct a Constitutional Convention. Through referenda, they would decide who may become citizens in the new government, what powers the government may exercise, and what civil rights it must protect. It would also elect officers to the new government. Once constituted, the new government would be authorized to negotiate with the United States over such matters as the transfer of land and natural resources, the exercise of civil and criminal jurisdiction, and the redress of claims against the United States. According to some supporters of the bill, the new government would even be able, on behalf of its constituents, to seek free association or total independence from the United States. This drive for separatism is troubling. It is wrong on its own terms and it seeks to change settled understanding, underlying the admission of Hawaii into the union. In 1950, citizens of Hawaii voted overwhelmingly for statehood. Native Hawaiians supported statehood by a margin of two to one. Over the next decade, they and others advocated for statehood based on the premise that Hawaii had become, in the words of one member of Congress at the time, a melting pot, 'from which had been produced a common nationality, a common patriotism, a common faith in freedom and in the institutions of America.' After a decade-long campaign, Congress accepted that view, admitted Hawaii into the union, and, in contrast to what it had done in many other states, set aside no land for reservations.

"The bill also raises troubling constitutional questions. The Supreme Court had made clear that classifications based on race and ethnicity receive the highest level of judicial scrutiny. To diminish such scrutiny, supporters of the bill contend that Congress may permissibly recognize Native Hawaiians as an Indian tribe. Supreme Court precedent makes clear that the power to recognize Indian tribes, although broad, is not unlimited and that courts will strike down any inappropriate extension of that power. In Rice v. Cayetano, the Supreme Court identified the specific question, whether Congress may include Native Hawaiians as an Indian tribe, as one of considerable moment and difficulty. Two concurring justices went farther, and concluded that Congress cannot - or a political state, excuse me, cannot permissibly treat an Indian tribe as the class - treat as an Indian tribe the class at issue here, Native Hawaiians broadly defined to include all descendants of Hawaii's original settlers.

"The question whether Congress may define Native Hawaiians as an Indian tribe, entitled to their own separate government, raises serious constitutional concerns. But whatever the constitutionality of S. 310, the administration as a policy matter strongly opposes any provision that would divide American sovereignty along the lines of race and ethnicity. ..."

Sen. Lisa Murkowski, R-Alaska: 'We certainly heard this in Alaska ...'

Sen. Lisa Murkowski, R-Alaska, questioning Gregory Katsas, Department of Justice principal deputy associate attorney general, on the Akaka Bill, S. 310 in the Senate, May 3. Following her reference in questioning to her opening statement, a passage is inserted from her opening statement:

Murkowski: Mr. Katsas, I guess I'm listening to your responses to Senator [Daniel] Inouye [D-Hawaii, the previous questioner on the committee] about sovereignty and sovereignty issues being on the table. This is where the concern is coming from within the Department of Justice.

We certainly heard this in Alaska, when we were dealing with our Alaska Native land claims settlement. Sovereignty was at hand, we're going to have all these independent nations up there, and the world as we knew it was going to come to an end. ... And if you look to what has happened in Alaska and how the Alaska Natives have truly demonstrated through their form of government a model. And I think for the Department of Justice to say well, for policy reasons, because this small affect may be on the table, and to kind of inflame the issue, I think, by suggesting that we're going to have - we're going to have a separatist entity, we're going to see the factionalism, I think is doing an injustice to the argument from the git-go.

Several times now in questioning you've referred back to Rice v. Cayetano, and I guess my question to you will be simple, because it will require a yes or no response. But do you believe that the Supreme Court holding, in Rice, expressly deprived Congress of the ability to determine that the Native Hawaiians fall within the ambit of the Indian Commerce Clause.

Katsas: The one-word answer is no. The qualification is that, although Rice has no explicit holding to that effect, it does have analysis that underscores our concern.

Well, and you know that case well. But in Rice the majority expressly states, we're going to stay far away from that difficult terrain. That was a comment that I had made in my opening [statement] as well.

[From Murkowski's opening statement] Of all the troublesome language in the [Department of Justice] prepared statement, I find the passages suggesting that "Indian tribes enjoy favored treatment" and that the Akaka Bill would create a class of "favored persons ... afforded different rights and privileges from those afforded to his or her neighbors" most troubling.

The suggestion is that if Native Hawaiians are regarded as American Indians, they become "favored persons." These are words that provoke resentment. They are inflammatory and they are uncalled for.

Language like this is used frequently by those who would have the United States end its financial support for Indian health and Indian housing programs. I don't use this language and I don't think our President has ever used it either to describe our nation's relationship with Native people. If you doubt this, I would suggest that you look at the President's Native American Heritage Month proclamations on the White House Web site.

I spend a lot of time with the Native people who live in rural Alaska, subsisting off of the land and the living resources as their ancestors did. I can assure you that nobody I know feels privileged to live in third world conditions without indoor plumbing or in substandard housing as the price they pay for living in their traditional communities.

Federal Indian programs compensate our Native peoples for the loss of their lands and I think the record will bear out that Native Hawaiian people are similarly situated to Alaska Natives and American Indians in this regard.

Reasonable people can civilly debate the question of whether the recognition of Native Hawaiians falls within the ambit of Congress' broad powers under the Indian Commerce Clause. Citing two law review articles - one pro and one con - the majority opinion in Rice v. Cayetano noted, 'It is a matter of some dispute whether Congress may treat the Native Hawaiians as it does the Indian tribes.' The majority then stated emphatically, "We can stay far off that difficult terrain, however."

However difficult the terrain, I would suggest the time has come for Congress to address the question. Congress has recognized Native Hawaiians perhaps 100 times in designating eligibility for the same types of programs and services afforded to American Indians because of their status as Indians. I'm speaking of health programs and housing programs.

I fear that if Congress remains silent on whether Native Hawaiians are to be treated as American Indians, the legal challenges [taking their lead from the Rice v. Cayetano ruling on voting rights] to these programs will continue and the intent of Congress as reflected in those laws may be frustrated.

Rep. Dale Kildee, D-Mich.: 'Steeped in the Constitution and the wishes of the people of all Hawaii'

Rep. Dale Kildee, D-Mich., co-chairman of the Congressional Native American Caucus, before the Natural Resources Committee in the House of Representatives, on behalf of the Akaka Bill, H.R. 505 in the House, May 2:

"I'll be brief ... But I support this enthusiastically. When I established the Native American Caucus about 10 years ago, we gave it the name Native American. That included people on the continent, included some groups in Alaska who were not Indians as such, and I had in mind, we had in mind also, Native Hawaiians. This [Akaka Bill] is so well-written, it is so well steeped in the Constitution and the wishes of the people of all Hawaii. I would oppose any amendment trying to weaken this. ... This is seeking after justice, and this will be a step towards justice."

Rep. Don Young, R-Alaska: 'To formalize what has thus far been a kind of informal trust relationship'

Rep. Don Young, R-Alaska, ranking Republican on the Natural Resources Committee in the House of Representatives, on behalf of the Akaka Bill, H.R. 505 in the House, May 2:

"I am supporting this bill primarily because of his [Rep. Neil Abercrombie, D-Hawaii] undying commitment to having this bill passed. And I do support the long-standing ties between Native Hawaiians and Alaskan Natives, who were themselves in a struggle to be recognized for the purpose of having their aboriginal land rights. Today's struggle involves Native Hawaiians seeking to formalize what has thus far been a kind of informal trust relationship involving the federal government and the state of Hawaii. This Congress has passed several laws under which lands in Hawaii were to be used for the benefit of Native Hawaiians. We have supplemented this with additional benefits and services in recognition of the unique status of Native Hawaiians.

"At some point we, the Congress, have to provide a means for the Native Hawaiians to administer these benefits in accordance with our ... policy ... of self-determination among Native people in general.

"I understand that some members have a problem with the bill. It might not be perfect, but H.R. 505 has the endorsement of the governor [of Hawaii, Linda Lingle], the congressional delegation and the state legislature. It does not cut into programming for American Indians and Alaska Natives. Enrollment into the governing entity is elective. For these reasons we owe a great deal of deference to the elected representatives of the state of Hawaii. They are the ones who are accountable for this legislation on their islands.

"Let's keep in mind, the Congress has recognized Native Americans for various purposes over the years. We're not limited by a strict set of criteria such as those set forth in the Interior Department's federal acknowledgment regulations. ... a quick look at some of the Indian statutes passed in the early days of our Republic make it clear that Congress viewed this power ... in a very broad sense.

"With that, Mr. Chairman [Rep. Nick Rahall, D-W.Va.], I'm pleased to support H.R. 505 and look forward to advancing this legislation to the floor of the House."

Sen. Byron Dorgan, D-N.D.: 'The Senate justified its ratification by describing the Native Hawaiian government as a domestic dependent nation ...

Sen. Byron Dorgan, D-N.D., and chairman of the Senate Committee on Indian Affairs, issued a strong endorsement of the Akaka Bill, S. 310 in the Senate, as his opening statement at the committee hearing May 3:

"... Before any Americans settled on the Hawaii islands, there existed a sovereign Native Hawaiian government.

"The United States recognized this sovereign Native nation, and negotiated four treaties with it.

"Once non-Natives began settling in Hawaii, the Native Hawaiian government allowed them representation in the government.

"But the non-Natives wanted control of the Hawaiian government.

"In 1893, the United States Minister utilized American soldiers to assist non-Native revolutionaries in overthrowing the Native Hawaiian government.

"Although President Grover Cleveland urged Congress to restore the Native Hawaiian Queen to power, the Senate Foreign Relations Committee ratified the actions of the non-Native revolutionaries. The Senate justified its ratification by describing the Native Hawaiian government as a domestic dependent nation, the same description given by the United States Supreme Court to Indian tribes in 1831. ...

"Although the United States ratified the overthrow of the Native Hawaiian government, we have always recognized a special relationship with the Native Hawaiians. I'm sure that the senators from Hawaii will describe this relationship in more detail, but suffice it to say that Congress has always recognized Native Hawaiians as the indigenous people of Hawaii with whom we have certain obligations. As evidence of this relationship, Congress has enacted over 150 statutes dealing with Native Hawaiians, and providing them with certain benefits. More, in 1993, Congress passed the Native Hawaiian Apology Resolution.

"I strongly prefer that our indigenous groups go through the Federal Acknowledgement Process at the Department of the Interior in order to establish a government-to-government relationship with the United States. However, that administrative process is not available to Native Hawaiians. The regulations governing the process state that the process is only available to American Indian groups indigenous to the contiguous 48 states and Alaska. Native Hawaiians are excluded. The 9th Circuit Court of Appeals has upheld the exclusion of Native Hawaiians from this process. ...

"The process was designed to evaluate Indian groups that did not previously have a political relationship with the United States. The Native Hawaiians clearly had a previous political relationship with the United States. The regulations also were not intended to cover indigenous groups who were the subject of congressional action or legislative termination. Numerous Indian tribes that were the subject of legislative termination had to come to Congress or the judiciary to be restored. In the case of Native Hawaiians, it was congressional approval of the illegal acts of others that led to the demise of the Native Hawaiian government. Thus, the administrative process cannot adequately evaluate the status of Native Hawaiians.

"To the extent that people feel that Native Hawaiians should go through some sort of process in order to obtain a government-to-government relationship with the United States, those people should take comfort in that S. 310 proposes to do exactly that - establish a process in which the Native Hawaiian people will work with the federal and state governments to reconstitute a Native Hawaiian government - a government that would continue to exist today had it not been for the illicit acts of the United States. S. 310 does not recognize a Native Hawaiian government. Rather it sets forth a process to allow Native Hawaiians to reorganize. The entity that is reconstituted will need to be certified by the federal government. Every step of the way, the federal and state governments will be involved in the process. ..."

Rep. Eni Faleomavaega, D-American Samoa: 'Begin the process of empowering our Native Hawaiian community'

Rep. Eni Faleomavaega, D-American Samoa, before the Natural Resources Committee in the House of Representatives, on behalf of the Akaka Bill, H.R. 505 in the House, May 2:

"I do want to associate myself very much with the comments that have been made earlier by our colleague from the state of Hawaii [Rep. Neil Abercrombie]. Mr. Chairman [Rep. Nick Rahall, D-W.Va.], this is a very important issue for me, I suppose, on a personal sense. As a kin, or as a distant [Pacific Island] relative to the Native Hawaiian people, I do feel that this issue is so important to them that I sincerely hope that my colleagues will support the gentleman from Hawaii who wrote the bill now before us. I strongly support this bill because it reaffirms the special relationship between the United States government and the Native Hawaiian people, and provides Native Hawaiians with a measure of self-determination that is long overdue.

"Passage of this legislation is important because it will begin the process of empowering our Native Hawaiian community to address severe health, educational, social welfare and economic problems facing this community today.

"The issue also that has been raised, how many times, is to suggest that this is a race-based proposal that will provide some kind of a government that is [an] unconstitutional exercise of congressional authority. I'm here today to address the concerns of some of those who literally raise questions of constitutionality of this proposed bill. My testimony today is just one opinion. It's based on a legal analysis of two of our nation's leading conservatives, one the former assistant attorney general [of the United States], Mr. Viet Dinh, and even the current Chief Justice of the United States [John Roberts] ... both of whom have agreed that Native Hawaiians are within the authority of Congress to enact legislation based on their status as aboriginal, indigenous people within what is now known as the United States - that their status as former sovereign nations is the same manner as American Indians and Native Alaskans. It is woven into the established powers of the U.S. Congress to create legislation addressing the needs of our nation's indigenous people. This authority is based not on race, but on this nation's special obligation and trust relationship with our once-sovereign indigenous people. The only restriction that the Supreme Court has placed on this authority is that it must not be arbitrary.

"Plenary authority of Congress in the field of Indian law includes the right to extinguish and to restore tribal authority, as is illustrated by the federal government's treatment of the Menominee Tribe of Indians, whose government-to-government relationship with the United States was extinguished [during the so-called termination era of the 1940s and '50s], and then later restored by Congress. Given that Congress, with its plenary authority over Indian affairs - does this authority include the power to legislate for Native Hawaiians? I say absolutely, yes.

"Congress has already determined that it has the right to legislate for Native Hawaiians, through some 160 laws that have already been enacted to address the needs of our Native Hawaiian community. Congress has expressly provided that the authority of the Congress, under the United States Constitution, to legislate on 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.

"Mr. Chairman, I just want to conclude by saying this: I believe that a careful reading of the cogent analysis relating to the constitutionality of this proposed legislation is absolutely within authority of the U.S. Congress under the Constitution. This legislation is not race-based, but is based on the authority of Congress to legislate on behalf of this nation's indigenous people, in protecting American Indians, Native Alaskans, and now our Native Hawaiian people. This legislation is not arbitrary and is not unprecedented, and I urge my colleagues to support this legislation. I think after waiting for a hundred years now, it is time that we do something to meet the needs of our Native Hawaiian people. ..."

Micah Kane, Hawaiian Homes Commission: 'This storm of distractions that we have to deal with'

Micah Kane, Hawaiian Homes Commission chairman, in conversation May 2 on the Akaka Bill within Hawaii, the Republican Party, and the Republican governor of Hawaii, Linda Lingle:

Micah Kane: She's been definitely one of the strongest advocates, publicly and privately, about Hawaiian initiatives.

Indian Country Today: Oh, tremendous. She's out there on the point. And they're [national Republican Party] sawing her off [by opposing the Akaka Bill]. Aren't they?

Kane: Well, I mean, they definitely haven't been as supportive as we want them to be, you know. And you know it hurts back home, politically, when we're trying to advance initiatives that should cross all party lines. These issues are not political. They're about people. ...

ICT: Any problem with [Republican] party building in Hawaii [a Democratic stronghold]? The national party isn't getting behind the governor and that's being perceived in Hawaii?

Kane: Well I think the national party is very much behind the governor. You know, there's issues that go far beyond just Native Hawaiian issues. And we've received a tremendous amount of support, you know, in the area of military, defense, homeland security, issues regarding the environment with the establishment of the Northwest Hawaiian Islands being the largest marine sanctuary in the world. So I mean there's been a tremendous amount of support, but on this issue [Akaka Bill] specifically, we're definitely not seeing the type of support we'd like, and it has -- it's an emotionally charged issue for us as Hawaiians, as well for the people of Hawaii. And so on this issue specifically, it makes it challenging for us. But I wouldn't say the administration [of President George W. Bush] hasn't been behind the governor, because they have been. It's just regarding this issue. I think it strikes at some of the ideological differences that perhaps we might have, and certain people in leadership have, with regard to Native rights.

ICT: Well, you know I think that raises the question then of whether there's just a minority up on Capitol Hill that's doing all this [advocacy for and against the Akaka Bill]. ... I think the legislature, the state legislature in Hawaii, has passed Native Hawaiian recognition approvals, right? How many times? Unanimously did I read?

Kane: There's been unanimous support locally across party lines, via resolution, in support of the Akaka Bill. You know most recently I think there has just been a single elected official who has expressed opposition, but otherwise it's been near unanimous. So it is mainstream in Hawaii.

ICT: And do you contemplate that changing because the political environment changes?

Kane: No, I think it's just going to get stronger. Until recognition passes, the threat against Native entities increases. Because the opposition is looking for a crack. Whether it's a John Doe case against the Kamehameha Schools, or a taxpayer status against the Office of Hawaiian Affairs, or an attempt to breach the Hawaiian Homeland Commission Act, those threats are against us every day, and those threats are growing. And it's unfortunate because we spend a tremendous amount of our time every day fighting for our right to exist as a Hawaiian entity in Hawaii. And that's a sad situation to be in when the mission of our trust should be just to be focused on getting Hawaiians back on the land, and yet we have this storm of distractions that we have to deal with in the legal environment.

But you know, I mean obviously, the biggest impact we can have is by continuing to have a Republican voice for Native Hawaiians. And that's what we have to fight for. ... because it allows us to get real information into the [party] caucus. Whether they want to hear it or not, they're going to get it. And that's effective. And I think in the future, our best opportunity lies with our ability to have Republicans advocating for this issue. And you do that by electing people who are going to advocate within those caucuses.

... The governor right now is concerned about being a governor, and doing those things. She will say what needs to be said. She's going to speak what she believes is right and will never hold back off that. ...

From our side [Hawaiian Homes Commission] it's performance, it's just performance. And Native programs in Hawaii are performing to a very high standard. So no one, Republican or Democrat, can argue that our program isn't doing what it is intended to do, dating back to its origin back in 1921. ... Straight performance. Peoples' lives are changing as a result of the Hawaiian Homes Commission Act, and I think the state of Hawaii recognizes it. I mean today we're the largest affordable homes developer in the state of Hawaii. Ninety-five percent self-sufficient. We add to the quality of life of everybody in that state, whether it's providing a unit for our families that relieves the pressure off the open market or accommodating community needs that not only benefit Native Hawaiians but also, you know, people in the region that we live with. ...

ICT: Is the indigenous, if you will, Native Hawaiian vote or feeling against the Akaka Bill strong in Hawaii?

Kane: Oh, it's extremely weak, extremely weak. It's very much a minority in our community, both in the [Native] Hawaiian community and non-Hawaiian community. You know when there's a threat against the Department of Hawaiian Homes or the Kamehameha Schools, twenty thousand people take to the streets to campaign for the support of those entities. ... Again, I think it's just, people in Hawaii want to see the Department of Hawaiian Homes, Office of Hawaiian Affairs, Kamehameha Schools, Liluokalani Trust, continue to exist without these legal threats. There's no question. And they are passionate about that.

ICT: And it seems there's some -- the idea of sort of seceding from the union, independent Hawaii, Old Hawaii -- seems there's some concern about that within the Department of Justice.

Kane: I don't think there's any mainstream desire to do that, within the Hawaiian community or outside the Hawaiian community. And it's not possible under the Akaka Bill and there's no intent for it to be. It's fear tactics. The opposition has to grab onto something. So you know, create something that strikes the emotional chord of people. ... You know, we're going to succeed on this issue. It's just a matter of time. ...

Again it's just not a partisan issue for us back home. It's beyond political lines, political issues. It's about people and the values of a state, because the values of our state -- the genesis of those values come from the Hawaiian people, the indigenous people that were there that welcomed -- that continue to welcome people to our state. And everybody recognizes that. It's just true. That's the world we live in back home.