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22–495 PDF

OF H.R. 309/S. 147







JULY 19, 2005

Serial No. 109–37

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
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Subcommittee on the Constitution

STEVE CHABOT, Ohio, Chairman

MARK GREEN, Wisconsin

JOHN CONYERS, Jr., Michigan
MELVIN L. WATT, North Carolina

PAUL B. TAYLOR, Chief Counsel
KIMBERLY BETZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member

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JULY 19, 2005

    The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution

    The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution


The Honorable Mark Bennett, Attorney General, State of Hawaii
Oral Testimony
Prepared Statement

Mr. Shannen W. Coffin, Partner, Steptoe & Johnson, L.L.P.
Oral Testimony
Prepared Statement

Mr. H. William Burgess, Founder, Aloha for All
Oral Testimony
Prepared Statement

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Mr. Bruce Fein, President, The Lichfield Group
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Joint Prepared Statement of the Honorable Neil Abercrombie and the Honorable Ed Case, Representatives in Congress from the State of Hawaii

    Appendix to the Statement of the Honorable Mark Bennett: Table of Federal Acts Affecting Native Hawaiians

    Appendix to the Statement of the Honorable Mark Bennett: ''The Authority of Congress to Establish a Process for Recognizing a Reconstituted Native Hawaiian Governing Entity,'' by Viet D. Dinh, Georgetown University Law Center and Bancroft Associates PLLC

    Appendix to the Statement of the Honorable Mark Bennett: Position Statement of the Attorney General of the State of Hawaii

    Appendix to the Statement of Shannen W. Coffin: Brief of Amici Curiae, Campaign for a Color-Blind America, Americans Against Discrimination and Preferences, and the United States Justice Foundation, In Support of Petitioner, Filed by Shannen W. Coffin, Counsel of Record for Ami Curiae in the case of Harold F. Rice v. Benjamin J. Cayetano
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    Appendix to the Statement of Shannen W. Coffin: Harold F. Rice v. Benjamin J. Cayetano, On Petition For a Writ of Certiorari To The United States Court of Appeals For The Ninth Circuit, Respondent's Brief in Opposition

    Appendix to the Statement of Shannen W. Coffin: United States Senate, Republican Policy Committee, Jon Kyl, Chairman, ''Why Congress Must Reject Race-Based Government for Native Hawaiians''

    Appendix to the Statement of H. William Burgess: HI-Akaka Bill—Survey

    Letter to Senator John McCain from the Honorable William B. Moschella, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice

    Letter to the Honorable Steve Chabot from Senator Jon Kyl

    Prepared Statement of David B. Rosen, Esq.


TUESDAY, JULY 19, 2005

House of Representatives,
Subcommittee on the Constitution,
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Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:07 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chair of the Subcommittee) presiding.

    Mr. CHABOT. The Committee will come to order. This is the Subcommittee on the Constitution. I am the Chairman, Steve Chabot. We expect the Ranking Member, Mr. Nadler, to be here very shortly. At that time we are going to recognize Mr. Abercrombie, who wants to bring up something that we are happy to participate in.

    We welcome everyone here today. I would like to thank everyone for coming. Some of you have clearly come from a very long distance from here. This is a hearing before the Subcommittee on the Constitution to examine whether Congress can create a race-based government within the United States, and, in particular, the constitutionality of H.R. 309, a bill that would authorize the creation and recognition of a Native Hawaiian quasi-sovereign government.

    I would like to recognize, as I mentioned at the outset, that this Committee does not have jurisdiction over H.R. 309 itself, but I believe this bill and the companion bill in the Senate raise constitutional questions of such magnitude that we would be doing a disservice to the public and to our constituents if we did not closely examine the constitutional implications of H.R. 309.

    We have a very distinguished panel before us here this afternoon. I would like to thank them for taking the time to provide us with their insight and expertise. I know Mr. Burgess, who flew all the way from Hawaii, had an extremely long trip. I appreciate his efforts particularly in coming here. We look forward to the testimony of all the witnesses here this afternoon.
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    Since the Civil War, the United States has strived to become a color blind society. We have struggled to insure that the principles on which our country was founded are applied equally, and that every person receives just and fair treatment under our laws.

    But the issue that we are focused on today suggests that race should be the sole criteria for how individuals are treated, and many of us believe that this would be a mistake. In asking Congress to take steps toward authorizing the creation of a race-based government, some refer us back to our Nation's history and treatment of Native American Indians in this country. Under article 1, section 8, Congress has the power ''to regulate commerce with the Indian tribes.''

    It is under this power that we have afforded unique protections to Indian tribes over the last 229 years. But those protections center on preserving the quasi-sovereign tribal status that Indians have lived under since the beginning of their existence, a point that has been reiterated time and time again by the Supreme Court.

    In fact, in U.S. v. Sandoval, the Supreme Court rejected the idea that ''Congress may bring a community or body of people within range of this power by arbitrarily calling them an Indian tribe, finding that in respect of distinctly Indian communities, the questions whether, to what extent and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress.''

    It is on this premise that unique treatment has been provided to Indians. It is on this basis that Native Hawaiians would seek quasi-sovereign status similar to Native American Indians. However, unlike Native American Indians and Alaska tribes, the only factor that would bind together a quasi-sovereign Native Hawaiian government, if formed today, would be race. Race alone does not and should not be the basis for creating a sovereign entity.
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    It is the antithesis of our form of Government and contrary to the principles on which this country was founded. The Supreme Court stated in Rice v. Cayetano that ''the law itself may not be an instrument for generating the prejudice and hostility, all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions.''

    Justice Scalia stated most appropriately in Adarand Contractors Inc. that ''to pursue the concept of racial entitlement, even for the most benign purposes, is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of the Government, we are just one race here. We are American.'' That was Justice Scalia in that particular opinion that I just referred to.

    It is here in America that all cultures are free to practice their traditions, cultures and religions free from Government intrusion. It is here in America where injustices that have occurred are remedied to make individuals and groups whole. However, America should not be a place where governments are defined by race or ancestry or the color of one's skin.

    It should not be a place neighbors, who may have lived next to each other for decades, are suddenly subject to two different civil and criminal standards because of race. It's with that understanding that we all look forward to exploring the issues before us today. And the statement that I just made is obviously not necessarily the statement that every Member of Congress would have made with respect to this, and it's not obviously the views of all the witnesses that are with us here this afternoon.
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    I would now yield to Mr. Nadler, and then we will yield, of course, to Mr. Abercrombie.

    Mr. NADLER. Thank you, Mr. Chairman. Let me just say, Mr. Chairman, that on this occasion, I must state my regret that this is not a field hearing, an on-site field hearing.

    Mr. Chairman, I would like to join you in welcoming our distinguished panel and also in welcoming our distinguished colleagues from the State of Hawaii. The record of concern and energetic efforts of all the people of Hawaii is admirable, and I want to commend them for their work on this very complex but important issue.

    Obviously, our Subcommittee does not have jurisdiction over this legislation, but we do have jurisdiction over the Constitution. Questions of this legislation's constitutionality have been raised, and I hope that we can make some contribution in sorting out these issues.

    In that consideration, I believe that the Subcommittee should listen very carefully to the voices of Hawaii's elected representatives. Our colleagues, and the distinguished Attorney General of Hawaii, have a great deal to contribute.

    I would also note that the minority, the Democratic Members of this Subcommittee, has invited a Republican Attorney General. The issues concerning Native Hawaiians are not partisan issues, so we should have the advantage hopefully of examining these questions in a cooler than perhaps normal atmosphere.
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    It is no secret that the treatment of the native people who inhabited the United States before the Europeans arrived has been a disgrace. It is a terrible legacy of the settlement of this hemisphere that the people who first inhabited these lands were murdered, enslaved, thrown off their land and robbed of their sovereignty.

    There is little we can do today about that shameful past, but we can try to achieve justice for those living in the present day. I believe there is really one core issue in this case, and that is whether Native Hawaiians are, like the tribes of the mainland, entitled to some right to self-determination, apart from their individual rights as citizens of the United States. If so, how do we enable them to realize these rights of self-determination without violating the rights of others.

    Terms like race-based government do not appear to enlighten this question very much. Perhaps the testimony will persuade me otherwise, but I am dubious of the concept.

    This is a new issue for our Committee, and an important one to the people of Hawaii and to the Nation. I thank my colleagues and you, Mr. Chairman, for raising these significant issues, and I look forward to hearing from our witnesses. I ask also ask unanimous consent that the statement by the gentleman from Hawaii be included in the record, and that all Members have 5 legislative days to revise and extend their remarks and to include additional materials into the record.

    I thank you, Mr. Chairman.

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    Mr. CHABOT. Thank you very much. I would at this time ask unanimous consent be given to allow two non-Judiciary Committee Members, Mr. Abercrombie and Mr. Case, to serve as a resource to this Committee. They won't be making opening statements or asking questions, but should any of the panel members wish to ask them questions or refer to them, they would be able, during Members' up here time, to do that. Without objection, so ordered.

    At this time, I would like to recognize Mr. Abercrombie to make a statement—this isn't an opening statement, but make a brief statement here.

    Mr. ABERCROMBIE. Mr. Chairman, on behalf of Mr. Case and myself, let me thank you for the opportunity to be with you and address the issues, as have been stated, are very, very important to us, and I think to anyone interested in the Constitution, especially as we are coming up on the anniversary in September of the signing of the Constitution. It's traditional in Hawaii, before we begin any deliberations or even when we greet people whom we haven't met before, and would like to accommodate as friends, that you be greeted with a lei of welcome and as symbolic of the aloha spirit in Hawaii of welcoming.

    With that in mind, Mr. Chairman, with your permission, the Chair of the Board of Trustees of the Office of Hawaiian Affairs, Haunani Apolonia, and the Representative from Molo'kai, Colette Mochado, would like to present you and Mr. Nadler with leis of greeting from Hawaii.

    Mr. CHABOT. Without objection, so ordered.

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    Mr. CHABOT. If Mr. Nadler has no objection, I have no objection.

    Mr. ABERCROMBIE. Mr. Chairman, you are going to receive a kiss with this. Hopefully it will be recorded for all to see. I guarantee you won't get in trouble with this one.

    Mr. CHABOT. Thank you.

    Mr. ABERCROMBIE. Mr. Chairman, under the rules of the House regarding shameless pandering, Mr. Case and I, on behalf of all of our friends here from Hawaii—and I have to note a conflict too. My neighbor is here, Judge Robert Klein, came as well, hopefully bringing greetings from my wife. And in that regard, Mr. Chairman, Mr. Case and I would like to present you and the staff with some chocolate-covered macadamia nuts.

    Mr. NADLER. Mr. Chairman .

    Mr. CHABOT. Yes, Mr. Nadler.

    Mr. NADLER. Can we all agree that the macadamia nuts and the leis will not unduly prejudice the consideration of this country?

    Mr. CHABOT. Yes, they are under the gift ban limit, I think, so I think we are in good shape. Thank you very much. In light of my opening statement, I wasn't sure if I was going to get these or not. But I appreciate that very much.
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    Mr. ABERCROMBIE. Mr. Chairman, when you meet someone in Hawaii, not only do you get a lei, but then you have to eat.

    Mr. CHABOT. Thank you very much. We appreciate the ceremony that you just did very well. I know that other Members of the Committee are feeling somewhat left out at this point, but it was very kind of you. Again, we appreciate it very much.

    Without objection, all Members will have 5 legislative days to submit additional materials, and they are not to be the macadamia nuts, for a hearing record, and without objection, so ordered.

    I will now introduce the members of the panel here. Our first witness is the Honorable Mark Bennett, Attorney General for the State of Hawaii. Mr. Bennett was appointed Attorney General by Hawaii Governor Linda Lingle in 2003. Prior to his appointment, Mr. Bennett was a litigator for the Honolulu-based law firm of McCorriston Miller Mukai MacKinnon L.L.P., where he specialized in complex litigation. In 2004, Mr. Bennett was named by the National Association of Attorneys General as Chair of its Antitrust Committee succeeding Eliott Spitzer, Attorney General of New York. Mr. Bennett has been married to Patricia Tomi Ohara for 20 years.

    Our second witness will be Mr. Shannen Coffin. Mr. Coffin is currently a partner with the law firm of Steptoe & Johnson, where he practices law in the areas of constitutional and appellate litigation. He served as counsel of record for amicus curiae Campaign for a Color Blind America in the Rice v. Cayetano case, a case that we will most certainly discuss later in this hearing. Mr. Coffin stepped away from the private practice between the years 2002 and 2004, where he served as the Deputy Assistant Attorney General for the Federal Programs Branch of the Department of Justice Civil Division. There he oversaw and coordinated trial litigation on behalf of the Federal Government for constitutional and other challenges to Federal statutes and agency programs. We thank you for being here as well as Attorney General Bennett for being here.
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    Our third witness is Mr. William Burgess. Mr. Burgess is a retired attorney who is a resident of the State of Hawaii. Mr. Burgess has been active in Hawaii's grassroots efforts to make Hawaii a color-blind society and together with his wife, have formed Aloha for All, Inc., an advocacy organization. He was a delegate to the 1978 Hawaiian constitutional convention, the same year that the Office of Hawaiian Affairs was established. What I find most interesting about Mr. Burgess' resume is that he lists as one of his current occupations ''student of Hawaii history.'' I am sure we will learn more about that later in the hearing.

    Our fourth and final witness this afternoon will be Mr. Bruce Fein, a renowned constitutional law expert. Mr. Fein previously served as the Assistant Director of Office of Legal Policy at the Department of Justice, legal advisor to the Assistant Attorney General for Antitrust and the Associate Deputy Attorney General. He was appointed to serve as the general counsel for the Federal Communications Commission and as a research director for the Joint Congressional Committee on Covert Arms Sales to Iraq. He is the author of numerous articles, papers and treatises in the areas of the United States Supreme Court, the U.S. Constitution and international law.

    We thank all of you, again, for being here, and for those of you who have not testified before the Committee before, I might note that we have a lighting system here. Each of the witnesses will be given 5 minutes. It will start green and be that way for 4 minutes. It will then change to yellow. That tells you have 1 minute to wrap up, and then it will go red, at which time we would hope that you would have either completed or wrap up shortly thereafter. I will give you a little leeway. We don't want to cut anybody off, but we would ask you to stay within the 5 minutes as much as possible.
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    It is the practice of this Committee to swear in all witnesses appearing before it, so if you would, we would ask each of you to please stand and raise your right hands.

    [Witnesses sworn.]

    Mr. CHABOT. Thank you very much. You can all please be seated. We will begin with you, Mr. Bennett.


    Mr. BENNETT. Mr. Chairman, and Members of the Committee. I would like to express my appreciation for you allowing me to testify here today on this very important issue. I support the Akaka bill because it is just and because it is fair and because it treats Native Hawaiians like America's other indigenous people.

    It has the support in Hawaii, the bipartisan support of virtually every elected official. It has the support of Republicans like Governor Linda Lingle and myself. It has the support of 75 out of 76 members of our State legislature. It has the support of all of our mayors, and it does not have that support for political reasons. It has that support because we all agree that this is the just thing to do.

    The title of this hearing asks essentially two questions: Does S. 147 create a race-based government? The answer to that question is a resounding no. Is H.R. 309/S. 147 constitutional? The answer to that question is a resounding yes.
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    While it is true that race is a characteristic for determining who gets to vote in the determination of forming a Native Hawaiian governing entity, for more than 100 years the Supreme Court has stated that race is one of the characteristics of determining whether individuals are part of a group or a tribe recognizable under the Indian Commerce Clause. So to say that this is a race-based government, is also to say that every recognized Indian tribe is a race-based government as well.

    Indeed, Mr. Chairman, this Congress, since 1910 has passed, and we have attached to our testimony as exhibits, more than 160 separate bills that recognize the special status of Native Hawaiians and their status akin to Native American Indians. Indeed the State of Hawaii's Admissions Act itself required Hawaii as a condition of entering the union to provide special benefits for Native Hawaiians.

    As recently as 2000, in the Hawaiian Homeland Act, this Congress said we are not extending benefits because of race, but because of Hawaii's people, Native Hawaiian's status as an indigenous people and the political status of Native Hawaiians is comparable to that of American Indians. Those are the words of this Congress repeated over and over again in litigation.

    In Morton v. Mancari the seminal case in this area, the Supreme Court said that even though the criteria for determining tribe membership may be based on race, it is not racial, it does not violate the 14th amendment, it is political, and it is recognized as such in the Constitution. That is why this bill is constitutional.

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    I am joined in this view by those who I consider conservative political theorists and legal scholars. We have attached to our testimony the detailed analysis of this bill by Viet Dinh, Professor and former high-ranking official in the Department of Justice, whose qualifications in this area are unquestionable.

    I have discussed this matter with several of my more conservative colleagues, including former Attorney General Bill Pryor, current Texas Attorney General Greg Abbott, both of whom concluded beyond question that this bill is constitutional. Professor Dinh recognizes four separate clauses in the Constitution providing that.

    Are Native Hawaiians—would they have been viewed as Indians by the Framers of the Constitution? Unquestionably. The Declaration of Independence itself describes Indians as inhabitants of the frontier, not just of 13 original colonies, but after-acquired territory.

    Captain Cook, in 1778, when he first visited Hawaii, and his men described the aboriginal inhabitants as Indians, the framers would have recognized them as such and the Framers would have recognized that Congress's power under the Indian clause indeed gives the Congress the ability to recognize Native Hawaiians. There has been no case ever in the history of the United States of which I am aware overturning a decision of Congress in this area.

    If there were any question, Mr. Chairman, about this, the Lara case from 2004 made clear that Congress's powers in this area are plenary, and the Menomonee Restoration Act upheld in that decision bears striking similarity to the act under consideration here. Whether the Indian tribes are fully assimilated, whether there is no Federal supervision of them, whether or not their government has been continuous, are irrelevant to the constitutional issue as determined by the Supreme Court.
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    Indeed, if the opponents of this bill were correct, the Alaska Natives Claims Settlement Act could not possibly have been constitutionally adopted. Native Alaskans are not Indians, but the criteria they share with American Indians is the fact that they are one of America's indigenous people.

    Mr. Chairman, if I could have a short additional time.

    Mr. CHABOT. If you could wrap it up in another minute, we would appreciate it.

    Mr. BENNETT. Thank you. Combined with the plenary power of Congress, and combined with the injustice done to Native Hawaiians in which the United States participated, the ability of the Congress to recognize that in this bill is, I would submit to you, constitutionally unquestionable. Rice is not in any way contrary. I could address that if I received questions.

    Mr. Chairman, Native Hawaiians do not ask for special treatment. Native Hawaiians ask for the type of fairness that we Americans pride ourselves on. They ask not to be treated as second class among America's indigenous people. They ask to be given the same rights and privileges so that they can take their place with other American indigenous people, and this bill before this Committee does that, as I started out by saying, Mr. Chairman, it is not a matter of race, it is not unconstitutional, it is a matter of justice and fairness, and that is what this bill accomplishes.

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    Thank you.

    Mr. CHABOT. Thank you.

    [The prepared statement of Mr. Bennett follows:]


    Good afternoon. Thank you for giving me the opportunity to address the important question presented today. Let me begin by noting, with due respect, that the title of this hearing ''Can Congress Create a Race-Based Government?'' itself reflects a fundamental misunderstanding of what the Akaka Bill does, and assumes a conclusion, erroneous I submit, to the very question it purports to ask.

    Simply put, the Akaka Bill does NOT create a race-based government. In fact, the fundamental criterion for participation in the Native Hawaiian Governing Entity is being a descendant of the native indigenous people of the Hawaiian Islands, a status Congress has itself characterized as being non-racial. For example, Congress has expressly stated that in establishing the many existing benefit programs for Native Hawaiians it was, and I quote, ''not extend[ing] services to Native Hawaiians because of their race, but because of their unique status as the indigenous people . . . as to whom the United States has established a trust relationship.'' [Hawaiian Homelands Homeownership Act of 2000, Section 202(13)(B)]. Thus, Congress does not view programs for Native Hawaiians as being ''race-based'' at all. Accordingly, a Native Hawaiian Governing Entity by and for Native Hawaiians would similarly not constitute a ''race-based'' government.
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    This is not just clever word play, and the contention that recognizing Native Hawaiians would create a ''racial'' classification would be flat wrong, and would ignore decades of consistent United States Supreme Court precedent. The key difference between the category Native Hawaiians and other racial groups, is that Native Hawaiians, like Native Americans and Alaska Natives, are the aboriginal indigenous people of their geographic region. All other racial groups in this country are simply not native to this country. And because of their native indigenous status, and the power granted the Congress under the Indian Commerce Clause, Native Hawaiians, like Native Americans and Alaska Natives, have been recognized by Congress as having a special political relationship with the United States.

    Moreover, although the initial voting constituency encompasses all those with Native Hawaiian blood, that simply reflects the unsurprising obvious fact that native peoples, by definition, share a blood connection to their native ancestors. The Supreme Court, in Morton v. Mancari, upheld a congressional preference for employment of Indians within the Bureau of Indian Affairs, even though not all tribal Indians were given the preference, but only those tribal Indians with one-quarter Indian blood.

    Those who contend that the Supreme Court in Rice v. Cayetano found the category consisting of Native Hawaiians to be ''race-based'' under the Fourteenth Amendment and unconstitutional are also simply wrong. The Supreme Court limited its decision to the context of Fifteenth Amendment voting rights, and expressly refused to address the applicability of Mancari to Native Hawaiian recognition. Indeed, the Supreme Court in Rice made no distinction whatsoever between American Indians and Native Hawaiians.

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    Some opponents of the Akaka Bill argue that including all Native Hawaiians, regardless of blood quantum, is unconstitutional, citing the concurring opinion of Justices Breyer and Souter in Rice v. Cayetano. But that opinion did not find constitutional fault with including all Native Hawaiians of any blood quantum provided that was the choice of the tribe, and not the state. Because the Akaka Bill gives Native Hawaiians the ability to select for themselves the membership criteria for ''citizenship'' within the Native Hawaiian government, no constitutional problem arises.

    The notion that S.147 creates some sort of unique race-based government at odds with our constitutional and congressional heritage contradicts Congress' longstanding recognition of other native peoples, including American Indians, and Alaska Natives, and the Supreme Court's virtually complete deference to Congress' decisions on such matters.

    Hawaiians are not asking for ''special'' treatment—they're simply asking to be treated the same way all other native indigenous Americans are treated in this country. Congress has recognized the great suffering American Indians and Alaska Natives have endured upon losing control of their native lands, and has, as a consequence, provided formal recognition to those native peoples. Hawaiians are simply asking for similar recognition, as the native indigenous peoples of the Hawaiian Islands who have suffered similar hardships, and who today continue to be at the bottom in most socioeconomic statistics.

    The Constitution gives Congress broad latitude to recognize native groups, and the Supreme Court has declared that it is for Congress, and not the courts, to decide which native peoples will be recognized, and to what extent. The only limitation is that Congress may not act ''arbitrarily'' in recognizing an Indian tribe. Because Native Hawaiians, like other Native Americans and Alaska Natives, are the indigenous aboriginal people of land ultimately subsumed within the expanding U.S. frontier, and not just a racial minority that descends from foreign immigrants, it cannot be arbitrary to provide recognition to Native Hawaiians. Indeed, because Native Hawaiians are not only indigenous, but also share with other Native Americans a similar history of tragic dispossession, cultural disruption, and loss of full self-determination, it would be ''arbitrary'' to not recognize Native Hawaiians.
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    The Supreme Court long ago stated that ''Congress possesses the broad power of legislating for the protection of the Indians wherever they may be,'' [U.S. v. McGowan] ''whether within its original territory or territory subsequently acquired.'' [U.S. v. Sandoval]

    To those who say that Native Hawaiians do not fall within Congress's power to deal specially with ''Indian Tribes,'' because Native Hawaiians simply are not ''Indian Tribes,'' I say they are simply wrong. For the term ''Indian,'' at the time of the framing of the Constitution, simply referred to the aboriginal ''inhabitants of our Frontiers.'' And the term ''tribe'' at that time simply meant ''a distinct body of people as divided by family or fortune, or any other characteristic.'' Native Hawaiians easily fit within both definitions.

    Furthermore, Congress has already recognized Native Hawaiians to a large degree, by not only repeatedly singling out Native Hawaiians for special treatment, either uniquely, or in concert with other Native Americans, but by acknowledging on many occasions a ''special relationship'' with, and trust obligation to, Native Hawaiians. In fact, Congress has already expressly stated that ''the political status of Native Hawaiians is comparable to that of American Indians.'' [e.g., Haw'n Homelands Homeownership Act of 2000]. The Akaka Bill simply takes this recognition one step further, by providing Native

    Hawaiians with the means to re-organize a formal self-governing entity for Congress to recognize, something Native Americans and Native Alaskans have had for decades.

    Some opponents of the bill have noted that Hawaiians no longer have an existing governmental structure to engage in a formal government-to-government relationship with the United States. That objection is not only misguided but self-contradictory. It is misguided because Native Hawaiians do not have a self-governing structure today only because the United States participated in the elimination of that governing entity, by facilitating the overthrow of the Hawaiian Kingdom, and later annexing the Hawaiian Islands. Unlike other Native Americans who were allowed to retain some measure of sovereignty, Congress did not leave Native Hawaiians with any sovereignty whatsoever. It cannot be that the United States's complete destruction of Hawaiian self-governance would be the reason Congress would be precluded from ameliorating the consequences of its own actions by trying to restore some small measure of sovereignty to the Native Hawaiian people.
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    The objection is self-contradictory because one of the very purposes and objects of the Akaka Bill is to allow Native Hawaiians to re-form the governmental structure they earlier lost. Thus, once the bill is passed, and the Native Hawaiian Governing Entity formed, the United States would be able to have a government-to-government relationship with that entity.

    Finally, some opponents of the bill contend that because the government of the Kingdom of Hawaii was itself not racially exclusive, that it would be inappropriate to recognize a governing entity limited to Native Hawaiians. This objection is absurd. The fact that Native Hawaiians, over one hundred years ago, were enlightened enough to maintain a government that was open to participation by non-Hawaiians, should not deprive Native Hawaiians today of the recognition they deserve. Indeed, it is quite ironic that those who oppose the Akaka Bill because it purportedly violates our nation's commitment to equal justice and racial harmony would use Native Hawaiians' historical inclusiveness, and willingness to allow non-Hawaiians to participate in their government, as a reason to deny Native Hawaiians the recognition other native groups receive.

    The same irony underlies the objection that because Native Hawaiians are not a fully segregated group within the Hawaiian Islands and instead are often integrated within Hawaii society at large, and sometimes marry outside their race, they cannot be given the same recognition that Native American and Alaska Natives receive. Anyone concerned about promoting racial equality and harmony should be rewarding Native Hawaiians for such inclusive behavior, or as we say in Hawaii, ''aloha'' for their fellow people of all races, rather than using it against them. In any event, American Indians, too, have intermarried—at rates as high as 50% or more—and often venture beyond reservation borders, and yet those facts do not prevent them or their descendants from federal recognition.
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    In short, there is simply no legal distinction between Native Hawaiians and American Indians or Alaska Natives, that would justify denying Native Hawaiians the same treatment other Native American groups in this country currently enjoy.

    The Akaka Bill, under any reasonable reading of the Constitution and decisions of the Supreme Court, is constitutional, just as is the Alaska Native Claims Settlement Act for Alaska Natives, and the Indian Reorganization Act for American Indian tribes—both of which assured their respective native peoples some degree of self-governance. The Supreme Court, as noted before, has made clear that Congress' power to recognize native peoples is virtually unreviewable.

    And so I emphasize and repeat, that Hawaiians are not asking for ''special'' treatment—they're simply asking to be treated the same way all other native indigenous Americans are treated in this country. Congress long ago afforded American Indians and Alaska Natives formal recognition. The Akaka Bill would simply provide Native Hawaiians comparable recognition, as the indigenous peoples of the Hawaiian Islands. Formal recognition will help preserve the language, identity, and culture of Native Hawaiians, just as it has for American Indians throughout the past century, and Alaska Natives for decades.

    The Akaka Bill does not permit total independence; it will not subject the United States or Hawaii to greater potential legal liability; and it does not allow gambling. Nor would passage of the bill reduce funding for other native groups, who, by the way, overwhelmingly support the bill. Instead, the Akaka Bill will finally give official and long overdue recognition to Native Hawaiians' inherent right of self-determination, and help them overcome, as the United States Supreme Court in Rice put it, their loss of a ''culture and way of life.'' The Akaka Bill would yield equality for all of this great country's native peoples, and in the process ensure justice for all.
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    Mr. CHABOT. Mr. Coffin, you are recognized for 5 minutes.


    Mr. COFFIN. Mr. Chairman, and Members of the Subcommittee.

    Mr. CHABOT. If you could turn that mike on, just hit the button there.

    Mr. COFFIN. There we go. Mr. Chairman and Members of the Subcommittee. I would also like to thank the Subcommittee for the opportunity to discuss the constitutionality of H.R. 309. I am disheartened, however, that today's hearing is necessary. However noble its purpose, and however good the people it addresses—and I have no doubt of that—Congress's consideration of this legislation not only has the potential to be extraordinarily divisive, it also raises serious constitutional questions. The Supreme Court has observed that distinction between citizens based solely on ancestry are, by their very nature, odious.

    Under the Supreme Court's equal protection jurisprudence, legislation that defines citizens on the basis of race is subject to strict judicial scrutiny and will be invalidated unless the classification is necessary and narrowly tailored to achieve a compelling State interest. This exacting standard applies whether the racial classification favors or disfavors a particular racial minority.
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    There is no doubt that H.R. 309 uses suspect racial classifications. It establishes, under the guise of Federal law, a racially-separate government that will exercise broad sovereign powers, the eligibility for which is limited to Native Hawaiians as defined by ancestry.

    This isn't the first time, Mr. Chairman, that we have been down this road. As you mentioned, in Rice v. Cayetano the Supreme Court invalidated similar State legislation that limited the eligibility to vote in elections for a statewide office to lineal descendents of those inhabitants of the Islands at the time of Captain Cook's arrival in 1778. The Court flatly rejected the argument that such a definition was not a racial classification, reasoning that ancestry can be a proxy for race and, in that case, as in this case, it was.

    The very object of the statutory definition in question in Rice was to treat early Hawaiians as a distinct people commanding their own recognition and respect. ''This ancestral inquiry,'' the court concluded, ''implicates the same grave concerns as a classification specifying a race by name. One of the principal reasons it is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of his own merits and essential qualities.'' Under this standard the race-based legislation proposed in H.R. 309 is presumptively invalid, and it is not saved by the artifice that it creates, treating the Native Hawaiian people as an Indian tribe.

    H.R. 309's preamble finds that the Constitution vests Congress with the authority to the address the conditions of the indigenous native people of the United States. But the Constitution says nothing about the condition of ''indigenous native people.'' Instead, Congress is authorized by the Constitution to regulate conduct with Indian tribes. But for a number of reasons, Native Hawaiians do not as a group fall within the constitutional meaning of this term.
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    It bears emphasis that in Rice v. Cayetano, the Hawaiian government itself in its brief in opposition to the petition for a writ of certiorari to the Supreme Court, argued that ''the tribal concept simply has no place in the concept of Hawaiian history.'' That was a statement by Governor Cayetano himself. The reasons for this admission are plenty but to summarize a few—Native Hawaiians are not geographically or culturally separated in Hawaii.

    Indeed the historians will tell you—and I am not one—but there is a long and diverse history of intermarriage between ethnicities that exercise any kind of organizational or political power. There are no tribes, no chieftains, no agreed-upon leaders, no political organizations and no monarchs in waiting. At the time referenced in the bill, 1893, there was no similar race-based Hawaiian government. The Queen's subjects were often naturalized citizens coming from all over the globe.

    Congress cannot change this conclusion by arbitrarily recognizing Native Hawaiians as an Indian tribe, as Mr. Chabot recognized from the Sandoval case. Even Justice Breyer, in his separate concurring opinion in Rice, noted, ''there must be some limit on what is reasonable, at least when a State which it is not itself a tribe, creates the definition of tribal membership.''

    The passage of this bill would set the Nation down a dangerous slippery slope and effectively allow Congress to create new race-based government entities outside of our constitutional structure—to be used by groups in Texas and California and Louisiana, all racially-distinct groups with an individual history, to acquire special governmental privileges.
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    While none of these groups may currently possess the political clout to accomplish this objective, who is to say that their political persistence over time would not result in similar separatist governmental proposals?

    Mr. Chairman, if I may make one more observation, before I close, it's ironic to me that the triggering date of this legislation is January 1, 1893, Mr. Chairman. At that very time, only a day later, the Louisiana Supreme Court denied rehearing of a petition for relief by a Creole activist named Homer Plessy only one day later, who had the audacity to sit in an all-whites car in a Louisiana rail coach, when he was, in fact, one-eighth black. A few years later, however, the Supreme Court of the United States upheld his criminal conviction concluding that separate-but-equal was our constitutional standard.

    H.R. 309 would take us back to those days when race was an appropriate basis to deny a class of people the liberties secured by the Constitution. As Justice Harlan said in his dissent, we are and we should be a color blind society. I urge Congress not to pass H.R. 309.

    Mr. CHABOT. Thank you.

    [The prepared statement of Mr. Coffin follows:]


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    Mr. CHABOT. Mr. Burgess, you are recognized for 5 minutes.


    Mr. BURGESS. Aloha and good afternoon. Thank you for allowing me to testify. Thank you for asking the big question first, can Congress create a race-based government? For the many people in Hawaii who are gravely concerned about the Akaka bill, it is critically important to address the question of constitutionality first. If Congress doesn't, and the bill is enacted, that in itself will have a destabilizing effect in the State of Hawaii. It will validate the radical minority separatists, the red shirts marching in the streets, the protestors demanding that the U.S. pack up and leave Hawaii.
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    By the time the courts go through their process, appeals and trials and further appeals, 5 or more years will have passed. It may be impossible by that time to put the Aloha State back together again.

    Now how do the bill's proponents address the question of constitutionality? They are in denial. They deny that the Constitution applies because Native Hawaiians are indigenous people. That's the same argument that they made unsuccessfully in Rice v. Cayetano. That's the same argument that was made 25 years ago when a State senator asked the Attorney General of Hawaii for an opinion whether this restricted voting in the OHA elections was constitutional, and the attorney general at that time cited Morton v. Mancari as an authority for the proposition that indigenous people can be treated separately.

    But Rice v. Cayetano put that to rest. It said that Morton v. Mancari applies only to Federally-recognized tribes, and it doesn't apply to State agencies.

    Now, nevertheless, the Attorney General of the State of Hawaii made that argument again in Arakaki v. State. That was the first suit to invalidate—following the Rice decision—to invalidate the requirement that State—that in the State law, as saying that the trustees, even though everyone could vote, the trustees had to be Native Hawaiian. And the district court rejected that, rejected the Mancari argument. They have been wrong every time they made their argument, and they are wrong now. Here is how their argument goes, as I understand it: All we want for Native Hawaiians is parity. American Indians and Alaska natives get all these benefits, it's just not fair for Native Hawaiians not to get them too.
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    But the Akaka bill would not give Native Hawaiians just parity, it would give them supremacy. It would bestow upon Native Hawaiians, merely by virtue of their ancestry, power to create their own separate sovereign government.

    Millions of people in the United States have some Native American ancestry. According to census 2000, 2.1 million people on their census forms said they were part American Indian. Some anthropologists estimate that as much as 15 million people in the United States have some discernible amount of Native American blood.

    But only those Native Americans who are members of Federally-recognized Indian tribes have the power or have the right of continuing a preexisting tribal government. No Native American has the power, merely by virtue of ancestry, to create a government. If Native Hawaiians were given parity with native Americans, then the U.S. Indian laws would apply to them.

    Under the mandatory criteria for recognition of tribes, Native Hawaiians wouldn't qualify, because they have no government to be recognized. Congress can only recognize existing sovereigns. It can't create new ones. There is no such power in the Constitution.

    Oh, I see my time is up, Mr. Chairman, may I wrap up briefly in one more minute?

    Mr. CHABOT. Yes, if you would wrap it up, thank you.

    Mr. BURGESS. To summarize, the arguments for the Akaka bill are the arguments for the same old make-believe tribe and pasted-on victimhood, dressed up in nice language, but with no shred of better logic or law than they had 5 years ago or 25 years ago. The U.S. can't give rights to groups of people merely because they share an ancestry. If there was no tribal government continuing to the present day, there is no basis for special treatment. Congress can write laws, but it can't change history. The fact that Congress passed 160 unconstitutional laws doesn't make any one of them legitimate.
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    Thank you, Mr. Chairman.

    Mr. CHABOT. Thank you very much.

    [The prepared statement of Mr. Burgess follows:]








    Mr. CHABOT. Mr. Fein, you are recognized for 5 minutes.

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    Mr. FEIN. Thank you, Mr. Chairman, and Members of the Subcommittee. I am grateful for the opportunity to present my views on the constitutionality of H.R. 309. It is somewhat alarming that the Senate has taken this particular bill as the companion of H.R. 309 to the floor almost without considering the nature of constitutionality.

    So the Congress is a legislative body of limited powers under the Constitution. In order to act, you must find affirmative authority in article 1, which identifies the enumerated powers of Congress. The only reference in article 1 that could plausibly apply to Native Hawaiians is article 1, section 8, clause 3, which empowers Congress to regulate commerce with Indian tribes.

    Now, to regulate commerce is not to create a governing entity of any race or otherwise. Justice Samuel Miller in the Kagama case made that quite clear. The reference to Indian tribes in that provision of the Constitution is recognition of a preexisting sovereign power exercised by those who had a common ancestry. They occupied a distinct territory. They exercised government power through leadership or otherwise over their particular members.

    There is nothing else in article 1 that would plausibly—other than this particular Indian commerce clause—enable Congress to create the race-based government, the Native Hawaiian entity that is contemplated by H.R. 309.

    The other provision that is occasionally invoked is the treaty power. Treaties were, indeed, consummated between the United States and Indian tribes, both prior to the constitutional ratification in 1789 and for perhaps 100 years thereafter.
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    But treaties also were negotiated between the United States and the Kingdom of Hawaii after its formation in 1810, and the language is quite distinct. When you view the description of the ratifying parties in both cases, the United States invariably, in its treaties with the Indian tribes, identifies the tribes by name, with an understanding of what particular leadership existed and an authority to bind the members of the tribe.

    If you compare the treaties with the Kingdom of Hawaii, they are really carbon copies of the same kind of treaties that were negotiated with Britain and France, the same language and the same understanding that the United States was not dealing with a tribe but with a foreign nation. A foreign nation is distinct from a Indian tribe in article 1 section 8, clause 3.

    Indeed, that understanding can be fortified by Senator Daniel Inouye. Which he said earlier this year because the Native Hawaiian government is not an Indian tribe, a body of Federal Indian law that would otherwise customarily apply when the United States extends material recognition to an Indian group does not apply. He, himself, I think, would be a very strong witness against the idea that Native Hawaiians at all are like Indian tribes.

    But again, I go beyond that and say there is no plausible affirmative power in Congress to create a race-based government where none existed before. There is a suggestion that there aren't racial classifications in this particular bill. But I think the clearest example of that error is the requirement that the Secretary of Interior appoint 9 Native Hawaiians in order to set the creation of the Native Hawaiian entity in motion.

    There is nothing at all that would require those particular nine Commissioners to be Native Hawaiians opposed to white or yellow or red or otherwise. They can all read the law and implement the particular prescriptions for setting up the Native Hawaiian government. Yet there is a race-based criterion here. I think that discredits the idea that racial distinctiveness is not the underlying purpose and motivation of the statute.
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    There has also been a suggestion that because there are so many laws passed that recognize the distinction of Native Hawaiians that somehow they have sort of grandfathered this in is constitutional, but I point out it leaves at least three major cases of the United States Supreme Court, which upended practices which were more than 200 years old.

    In Elrod v. Burns, for example, the Court held unconstitutional patronage for Government employment that had been in practice for more than 2000 years. In Bowling v. Sharpe, the Supreme Court overturned a Congressional decision made as early as 1866 to require segregated schools in the District of Columbia. In INS v. Chata, the Supreme Court overturned hundreds of legislative vetoes that had commenced in 1930, in 1982, holding that every one of them violated the Presentment Clause.

    So, there isn't any reluctance of the Supreme Court to find that longevity is not the equivalent of constitutionality. Also, with regard to the insinuation that if there were injustices committed against Native Hawaiians at sometime in the 1893 overthrow or otherwise, this particular Akaka bill is the only way to remedy those. That is absolutely false. When it was found by this Congress that there were injustices to the Japanese Americans during World War II, there is the Civil Liberties Act of 1988 that provided reparations of $20,000 to those who are detained or their families. And that didn't require creating a race-based Japanese government.

    With regard to the Indians, there is the Indian Claims Commission that was established and operated for many, many years, amid claims of moral or equitable entitlement against the United States use. So there are hundreds of alternate ways other than creating a race-based sovereignty in which these historical grievances can be assessed.
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    I am not suggesting that all of the claims are valid. Some may be, maybe some are not. But there is no requirement that they undertake a race-based government in order to overcome historical grievances.

    Mr. CHABOT. Your time has expired, Mr. Fein, if you could wrap up.

    Mr. FEIN. Yes, the last thing I would say is that the one thing that has distinguished the strengths of the United States has been commitment to equal opportunity and equal dignity irrespective of race or ancestry. I think that came home right after 9/11. We all stood up. We all felt the thrill of being Americans. We would not be intimidated. Because we had our courage, our patriotism awakened by these high and noble ideals. The Akaka bill, in my judgment, besmirches those ideals. It would weaken the country and it must be defeated. Thank you.

    Mr. CHABOT. Thank you very much.

    [The prepared statement of Mr. Fein follows:]




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    Mr. CHABOT. The Members of the panel here will now have 5 minutes each to ask questions.

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    I would begin by asking unanimous consent to enter three letters into the record. The first is a July 13 letter from the Department of Justice to Senator McCain. Second is a letter dated July 19 from Senator Kyl to this Subcommittee and the third is a letter from a Hawaiian citizen by the name of David Rosen.

    Without objection, they will be entered into the record.

    If any other Members want to enter such letters or things, of course as always, we would permit that to occur. I now recognize myself. I would direct this question to each of the panel members.

    Some of article 1, section 8 has been referred to, I think, by all of the Members. The Indian commerce clause states that ''Congress shall have the power to regulate commerce with the Indian tribes.''

    Now, H.R. 309 and its proponents suggests that the Indian commerce clause confers to Congress the power to regulate all aboriginal, indigenous people. What authority does article 1, section 8 give to Congress, and what is your best shot at what is the difference between what Congress has done with respect to Native Americans and to Alaskans versus what is being asked for in this particular legislation?

    We will start with you, Mr. Bennett. We will just go down the line.

    Mr. BENNETT. Thank you. I think that the constitutional issue is whether the Congress' action, in recognizing an indigenous American group, is arbitrary. There has been no case that I know of in the history of the republic where the courts have said that the Congress has overstepped its authority.
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    I believe the Indian Commerce Clause, as interpreted as recently as Lara and back in Morton v. Mancari has said, that recognition to aboriginal groups in the United States is political. It is not racial, that Congress' power in this regard is plenary and exclusive. And the fact that Hawaii was an after-acquired part of the lands of the United States, as opposed to part of the 13 original colonies, is entirely irrelevant to the constitutional analysis.

    So, in short, I believe that Congress's power is plenary. I believe that the Supreme Court has said over and over again that Congress's power is plenary. I believe that Congress has the right to say that Native Hawaiians are so akin to Indian tribes and are unquestionably aboriginal inhabitants of part of the United States, part of the aboriginal requirements, that it is a political decision for the political branches to determine whether or not to afford recognition and that such recognition would clearly be upheld.

    Mr. CHABOT. Thank you. Mr. Coffin.

    Mr. COFFIN. Mr. Chairman, I disagree that this is a plenary power of Congress. There is a defined term in the Constitution. Well, there is a specific term in the Constitution, that is Indian tribes.

    The Supreme Court, as early as 1900 in Montoya v. United States, described an Indian tribe as a body of Indians having the same or similar race, united community under one leadership and inhabiting particular, although perhaps ill-defined territory. So there are components to the definition that certainly aren't met here when you are defining solely based on race.
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    Mr. CHABOT. Thank you. Mr. Burgess.

    Mr. BURGESS. Mr. Chairman, my impression is——

    Mr. CHABOT. I think your mike is not on.

    Mr. BURGESS. Oh, I'm sorry. Thank you. This bill is radically broader than the treatment of Native Americans in the United States. As I said originally, that Native Americans, to be recognized for special treatment, have to be members of Federally-recognized tribes. There are millions that don't have that qualification, simply because they are not members of recognized tribes. They are subject to the Constitution just like everyone else.

    But this—think of the precedent that this would set, if the principle is adopted—which Mr. Bennett and other proponents of the bill offer—just think of what it says. Anyone who is a descendant of anyone who is indigenous to the United States, to the land that later became part of the United States, has the right to form their own new separate government.

    Imagine how about how the people in the southwestern part of the United States who are seeking to liberate Colorado, Arizona, parts of California, if those indigenous people simply, because of their ancestry, have the right to create their own separate government. What is going to happen to the southwestern part?

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    Mr. CHABOT. Indeed before I run out of time, I would like to let Mr. Fein answer, thank you.

    Mr. FEIN. It is always easier to start with the actual language, the Constitution, rather than resorting to conundrums and emanations. The language is Congress has authority to regulate commerce with Indian tribes. That doesn't come close to suggesting that Congress has the power to create a tribe or an entity that didn't exist before. You can quote from the Department of Interior itself, its chief attorney in a famous case, Kearny v. Babbitt, saying ''when the Department of Interior recognizes a tribe, it is not saying you are now a tribe, we are saying that we recognize that your sovereignty exists.''

    We don't create tribes out of thin air. That's exactly what this bill would do. It would create a tribe, a Native Hawaiian entity that doesn't exist now. It never existed during the Hawaiian kingdom. Indeed, it represented, perhaps, the best example of a fusion of Native Hawaiian or non-Native Hawaiian influences.

    If you would just indulge me, let me read this quote from a historical expert on the Kingdom of Hawaii, R.S. Kuykendall, ''we can see that the policy being followed in the Kingdom looked to the creation of an Hawaiian State by the fusion of native and foreign ideas and the union of native or foreign personnel bringing into being a Hawaiian body politic in which all elements, both Hawaiian and haole should work together for the common good under the mild and enlightened rule of a Hawaiian king.'' That, Mr. Chairman, is not a description of an Indian tribe.

    The CHAIRMAN. Thank you very much. I might note to other Members, our clock is on the blink here, it looks like the yellow light isn't working. So bear with us here. Mr. Nadler is recognized for 5 minutes.
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    Mr. NADLER. Thank you, I was intrigued by what Mr. Fein said. So the fact that the tribe of Hawaiians gave political rights under the Kingdom to other people means they could no longer be considered as a tribe, is that what you are saying?

    Mr. FEIN. No, that is not accurate.

    Mr. NADLER. Let me ask Mr. Bennett to comment on the comments of the constitutional speakers. We have heard over the last few minutes. Why do you think they are wrong?

    Mr. BENNETT. Well, why I think they are wrong because the words of the Indian Commerce Clause have to be taken with the gloss that the Supreme Court has used in interpreting them for well over 100 years. Indeed, in the Lara case, the Supreme Court said specifically that Congress's power in their area is plenary and exclusive. So it is——

    Mr. NADLER. That means that Congress can create a tribe?

    Mr. BENNETT. It means that Congress can recognize an indigenous people as a tribe even though their form of government in the past was different. Even though they have ceased to have a government, that was exactly the issue in Lara itself. Congress had derecognized the Menomonee tribe. It had terminated their tribal existence, and then some years later Congress through the Menomonee Restoration Act, Congress resurrected the Menomonee tribe and the argument was Congress can't resurrect what no longer exists. And the Supreme Court said, no that is just simply wrong. It is up to the political branches to make these kinds of decisions.
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    I believe that it is impossible to read Lara without concluding that in this case, with the historic distinct culture, religion and government of the Hawaiian people, that at one time existed and that was terminated by force with the assistance of the United States, I think it is just clear that our Congress can exercise its plenary power to right that injustice and to recognize Native Hawaiians.

    Mr. NADLER. So you would say that if the people of Hawaii, native peoples of Congress were recognized as a quote, unquote, Hawaiian tribe, then the fact of the annexation to the conquest of Hawaii, when they had native government under Queen Liliuokalani, that they gave citizenship rights to other peoples was the choice of that that tribe and doesn't detract from the possibility of recognizing it as such?

    Mr. BENNETT. Absolutely. The fact that when the Hawaiians had a government, the fact that they accorded rights to individuals who weren't Hawaiians, certainly the Supreme Court would say it would be absurd to hold that argument against them. In fact, one of the arguments made by the opponents of the bill is that because the government was completely destroyed and didn't exist anymore, that prevents Congressional recognition. And that is equally absurd to say that if the destruction had only been partial, and hadn't been complete, then the government could be recognized today. It makes no legal sense. It certainly makes no textual sense. It makes no sense for a country that prides itself on its justice and fairness.

    Mr. NADLER. Now, Mr. Bennett, now, Mr. Attorney General, is it your reading then that by Indian tribe, the Constitution means any indigenous group of people that Congress chooses to recognize?
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    Mr. BENNETT. I think that it absolutely requires certain characteristics, including being the original aboriginal inhabitants of particular territory, and the straw men that are being set up with the southwest.

    Mr. NADLER. Are not the original aboriginal inhabitants?

    Mr. BENNETT. Exactly.

    Mr. NADLER. So, we could recognize, if we wanted to, the Aztecs in California, if there were any, but not the Mexicans?

    Mr. BENNETT. Absolutely. That's absolutely right.

    Mr. NADLER. It is your contention that it is the plenary power of Congress to recognize the Hawaiian people as an indigenous people or to recognize six different groups of Hawaiian people as six different Hawaiian tribes, it is up to Congress?

    Mr. BENNETT. It is, but I don't think anyone has ever proffered——

    Mr. NADLER. So I am trying to say how the Congress are. We can define it any way we want as long as they are the aboriginal people.

    Mr. BENNETT. As long as they are the aboriginal people and as long as it is not arbitrary.
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    Mr. NADLER. You might say six would be arbitrary.

    Mr. BENNETT. I would say historically it might be, yes.

    Mr. NADLER. Thank you very much. I yield back.

    Mr. CHABOT. Thank you. The gentleman from Iowa, Mr. King, is recognized for 5 minutes.

    Mr. KING. Thank you, Mr. Chairman, I do appreciate this testimony and the distance that some of you had to travel to be here today. I do think this is the appropriate place to discuss this issue before the Constitution Subcommittee. I ask you all to consider our Constitution, consider some of the constraints that were bound by here in this Congress.

    We swear an oath to uphold the Constitution of the United States. It doesn't always adhere to the letter of this Constitution. It should be. I appreciate the points made by Mr. Fein with regard to our Constitution.

    As I look back on this testimony and try to sort out here the relevant points, and there are a lot of different points that have been brought between all of the different witnesses here, it strikes me that as I listen to the testimony of Mr. Bennett, and I had some notes here that says race is one of the characteristics of a tribe. And, let me see, the question of—is this determination of a Native Hawaiian race-based, the answer was a resounding no, which I heard very clearly, Mr. Bennett.
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    So I turned to the bill, and I look under definition of Native Hawaiians, and it says an individual who is one of the indigenous native people of Hawaii and who is a direct lineal descendent of the aboriginal indigenous native people. Now, if you are going to measure the inclusion in a native aboriginal people by their descendency, how do you argue that this is not a race-based type of determination on Hawaiian citizenship or Hawaii and native aboriginal membership?

    Mr. BENNETT. I would argue in the words of the Supreme Court of the United States the issue in Morton v. Mancari was a benefit that was provided to certain Indians who were only one quarter blood or more. And the challenge made in Morton v. Mancari is the criteria here is race, this is clearly violative of the 14th amendment. And what the Supreme Court said is absolutely not. Although you are looking at blood quantum, the power of Congress to recognize aboriginal people or Indian tribes, the power of Congress to make these divisions is a political determination of Congress, not racial.

    Mr. KING. Thank you, Mr. Bennett, and I appreciate that. That is a clarification that I really needed. So if it is not race and it not ancestry, would you concede that Congress has the authority that if the bill is going to pass, to declare everyone who has a residence or citizenship of Hawaii to be a member of native aboriginal people?

    Mr. BENNETT. No, because quite clearly myself, having been born in Brooklyn, was not a resident——

    Mr. KING. So if it is not race, what is the distinction if it is a Hawaiian Native born there?
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    Mr. BENNETT. Sir, I can't help to repeat myself, which is to say the Supreme Court, going back to the Montoya case, which my colleague on my left quoted, said that one of the determinants of whether there is a recognizable tribe is indeed race, but the Supreme Court has also said, in case after case, that the fact that this is one of the components does not make the preferences or the creation race-based.

    It makes it a political determination by Congress and Morton——

    Mr. KING. But yet, Mr. Bennett, I have not heard anyone draw a distinction on how you determine a Native Hawaiian without going back to determine race or ethnicity as the component as a distinction if being born in Hawaii, being a Hawaiian of multi-generational Hawaiian does not qualify, then it seems to me that your only criteria left are to do with race and ethnicity.

    So I would ask you, then, if that is the case and if your testimony is accurate with regard to no, it is not race based, would you support an amendment that would say nothing in this act shall be construed to authorize or permit the exercise of governmental powers by any entity that is defined by its members under race or ancestry?

    Mr. BENNETT. No. I think that that would clearly contravene the body of law that is built up under the Indian Commerce Clause. Native Hawaiians have more than simply common racial characteristics. They are united in community. They, at one time, were under one government. They were inhabiting a particular territory, however ill-defined, the very criteria that the court in Montoya looked at in 1901, and the fact again that one of the components is race or ancestry——
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    Mr. KING. Then the only other component that you have mentioned in that is inhabiting a similar community which also works for every other ethnicity and they are also everywhere in America.

    I turn to Mr. Fein to respond to this.

    Mr. FEIN. I think Mr. Bennett is simply wrong in suggesting that from the beginning of the Kingdom in 1810 thereafter to the ouster of Queen Liliuokalani, that there ever was a particular community or reservation or land set aside for Native Hawaiians. The fact is that there wasn't a government for Native Hawaiians. The leadership was always a leadership of everyone who was on Hawaii, native and non-native alike.

    It was similar to the government of the Louisiana Purchase after 1807 when the Government established by the United States applied equally to indigenous Creoles or anyone else. There wasn't any separateness.

    The only thing that the Native Hawaiians had in common with American Indians is that they are both relying upon ancestry. Other than that, all the other distinctive features that the Supreme Court has enumerated to justify recognizing an Indian tribe are absent with regard to Native Hawaiians.

    The other thing I would like to underscore is that the Indian tribes and their position is an enormous exception to the general thrust and basic background of our Constitution. All the values, the liberties and the rights are based upon the fundamental idea of individual rights and equality, irrespective of race, ethnicity, religion or otherwise.
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    That is the background against which we are operating today in which we were operating in 1776. The Indian tribes were recognized as a preexisting situation, a fete accompli that they were dealing with at the time, recognizing that at war then clashed with the basic values of the Constitution, and therefore the Supreme Court would view with the highest kind of scrutiny and skepticism any deviation from that basic fundamental libertarian background in recognizing any power of Congress to create an entity that could violate the Constitution rather than enjoy the same rights and liberties of everyone else.

    Mr. CHABOT. Gentleman's time has expired. Gentleman from Virginia, Mr. Scott is recognized for 5 minutes.

    Mr. SCOTT. Mr. Chairman, you described an unusual process that I think I will take advantage of because you said we could take advantage of the resource of our friends from Hawaii. And I would ask the gentleman from Hawaii, Mr. Abercrombie, if you had a question to ask, what would that question be?

    Mr. ABERCROMBIE. Thank you very much. Perhaps, Mr. Chairman, we could help enlighten the process a little bit because so far we have had an excellent discussion in terms of some of the more abstract and philosophical points associated with the Constitution. But as we all know, the Constitution—the implementation of the Constitution takes place in real circumstances. So I would ask Mr. Bennett, if he could, excuse me, Mr. Bennett, domestic tranquility is now at stake here. But hopefully you are going to be my excuse.

    Mr. Bennett, perhaps you could help enlighten the Committee by putting this into context. You mentioned a context before that this has to be played out in. The Admissions Act of 1959, which brings Hawaii into the Union, specifically provided for administration of what are called ceded lands.
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    And Mr. Chairman, I will spare you the history of land tenure when you go from a prefeudal Kingdom to a shotgun Republic to an annexed territory to a State in the Union of the United States. But please take my word for it, there is something called ceded lands. It is hundreds of thousands of acres. When you include with that—and I would ask you to respond also, Mr. Bennett, the question of Hawaiian homelands and the establishment by the Congress of Hawaiian homelands with a blood quantum associated with it, if you could put into context then your position that this was a historical and political decision as opposed to a racial decision and make reference to what the Congress demanded and created, namely the Admissions Act, which brought Hawaii into the Union as a State and the Hawaiian Homelands Act, which is also created by the Congress in order to place Native Hawaiians on the land?

    Mr. BENNETT. Thank you. And indeed, what you said is entirely accurate, that Hawaii would not have been allowed to become a State by the Congress unless it specifically included in its Constitution a guarantee that it would continue the Hawaiian homes program, which Congress established in the 1920's, which bases the right to occupy land on blood quantum of Native Hawaiians specifically, and based upon the fact that the government of the State of Hawaii would treat what you have described as the ceded lands, and hold them, in part, specifically for the benefits of the people, Native Hawaiians with a particular blood quantum. So that was part of the requirements imposed by this Congress on Hawaii to enter the union.

    Mr. ABERCROMBIE. Ceded lands were—essentially for purposes of our conversation here—lands that came from the time of the kingdom, from the overthrow of the kingdom and were administered by successive governmental entities on behalf of Native Hawaiians, the benefit of Native Hawaiians, as they ostensibly had been administered when the kingdom was in existence, correct?
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    Mr. BENNETT. Absolutely.

    Mr. CHABOT. Is the gentleman from Virginia—an additional minute, but the lights are out but you have another minute.

    Mr. SCOTT. I would ask the other gentleman from Hawaii, if he had a question, what would that question be?

    Mr. CHABOT. I had a feeling you might ask that.

    Mr. CASE. Mr. Coffin, Burgess or Fein, any one of you, yes or no, Mr. Bennett made a representation that there had never been a case decided by the Supreme Court in which Congress' exercise of its power under the Indian Commerce Clause to provide Federal recognition to an Indian tribe had ever been overturned? Yes or no? Is that true? Are you aware of any such case in the 200-plus years of law on this subject.

    Mr. COFFIN. The Supreme Court, on several occasions, recognized the limitations of Congress.

    Mr. CASE. Have they ever overturned Congress' plenary powers to provide Federal recognition——

    Mr. COFFIN. The issue has not been squarely presented to the United States Supreme Court, but in the most recent case dealing with the Native Hawaiian situation, Supreme Court scratched its head and said, there may very well be limitations on Congress' power to recognize——
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    Mr. CASE. Are you referring to the Rice case——

    Mr. COFFIN. Yes, I am.

    Mr. CASE. The decision under the 15th amendment——

    Mr. COFFIN. And the 14th amendment, Mr. Case, provides the same answer.

    Mr. CHABOT. The gentleman's time has expired. We want to thank the panel for their testimony here this afternoon. It has been very helpful, as I mentioned at the outset of the hearing, we don't have direct jurisdiction over this particular bill. But it does raise significant Constitutional issues, and that was the purpose of the Constitutional Subcommittee holding this hearing this afternoon. I thought all four of the witnesses were very good and very helpful. I want to thank the Members for their attendance here this afternoon.

    Mr. NADLER. Could I just ask that the record reflect that we have been joined for much of this hearing by Mr. Faleomavaega?

    Mr. CHABOT. Yes. Absolutely. And I would have to say Eni is one of the more distinguished Members of the House of Representatives. And he and I had the good fortune to represent the Congress in the United Nations for a year together.

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    Mr. FALEOMAVAEGA. Would the Chairman yield?

    Mr. CHABOT. Yes, I will.

    Mr. FALEOMAVAEGA. I know the Chairman is going to be most reasonable and fair in the process. And I know that he will decide in our favor to recognize——

    Thank you, Mr. Chairman.

    Mr. CHABOT. I agree with the first part. I don't know if I agree with the second part.

    So I want to thank again everyone for coming all those folks who also traveled all the way from the great State of Hawaii to be with us here this afternoon. And if there is no further business to come before the Committee, we are adjourned. Thank you.

    [Whereupon, at 3:15 p.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record

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APPENDIX TO THE STATEMENT OF SHANNEN W. COFFIN: BRIEF OF AMICI CURIAE, Campaign for a Color-Blind America, Americans Against Discrimination and Preferences, and the United States Justice Foundation, In Support of Petitioner, Filed by Shannen W. Coffin, Counsel of Record for AMI CURIAE in the case of HAROLD F. RICE V. BENJAMIN J. CAYETANO
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APPENDIX TO THE STATEMENT OF SHANNEN W. COFFIN: HAROLD F. RICE V. BENJAMIN J. CAYETANO, On Petition For a Writ of Certiorari To The United Statees Court of Appeals For The Ninth Circuit, Respondent's Brief in Opposition










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