[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
CAN CONGRESS CREATE A RACE-BASED
GOVERNMENT? THE CONSTITUTIONALITY
OF H.R. 309/S. 147
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JULY 19, 2005
__________
Serial No. 109-37
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2005
22-495 PDF
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
JULY 19, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
WITNESSES
The Honorable Mark Bennett, Attorney General, State of Hawaii
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. Shannen W. Coffin, Partner, Steptoe & Johnson, L.L.P.
Oral Testimony................................................. 10
Prepared Statement............................................. 13
Mr. H. William Burgess, Founder, Aloha for All
Oral Testimony................................................. 23
Prepared Statement............................................. 25
Mr. Bruce Fein, President, The Lichfield Group
Oral Testimony................................................. 31
Prepared Statement............................................. 34
APPENDIX
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................................................ 56
Appendix to the Statement of the Honorable Mark Bennett: Table of
Federal Acts Affecting Native Hawaiians........................ 60
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........................................................... 81
Appendix to the Statement of the Honorable Mark Bennett: Position
Statement of the Attorney General of the State of Hawaii....... 107
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................................ 140
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............................... 153
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''.................................................... 157
Appendix to the Statement of H. William Burgess: HI-Akaka Bill--
Survey 2....................................................... 170
Letter to Senator John McCain from the Honorable William B.
Moschella, Assistant Attorney General, Office of Legislative
Affairs, U.S. Department of Justice............................ 183
Letter to the Honorable Steve Chabot from Senator Jon Kyl........ 185
Prepared Statement of David B. Rosen, Esq........................ 209
CAN CONGRESS CREATE A RACE-BASED GOVERNMENT? THE CONSTITUTIONALITY OF
H.R. 309/S. 147
----------
TUESDAY, JULY 19, 2005
House of Representatives,
Subcommittee on the Constitution,
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.
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.
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.
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.
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.
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.
Mr. Abercrombie. Yes.
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.
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.
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.
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.
TESTIMONY OF THE HONORABLE MARK BENNETT,
ATTORNEY GENERAL, STATE OF HAWAII
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.
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.
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.
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.
Thank you.
Mr. Chabot. Thank you.
[The prepared statement of Mr. Bennett follows:]
Prepared Statement of the Honorable Mark J. Bennett
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.
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.
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.
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.
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.
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.
Mr. Chabot. Mr. Coffin, you are recognized for 5 minutes.
TESTIMONY OF SHANNEN COFFIN, PARTNER,
STEPTOE & JOHNSON, L.L.P.
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.
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.
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.
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:]
Prepared Statement of Shannen W. Coffin
Mr. Chabot. Mr. Burgess, you are recognized for 5 minutes.
TESTIMONY OF H. WILLIAM BURGESS, FOUNDER,
ALOHA FOR ALL
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.
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.
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.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you very much.
[The prepared statement of Mr. Burgess follows:]
Prepared Statement of H. William Burgess
Mr. Chabot. Mr. Fein, you are recognized for 5 minutes.
TESTIMONY OF BRUCE FEIN, PRESIDENT,
THE LICHFIELD GROUP
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.
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.
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.
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:]
Prepared Statement of Bruce Fein
Mr. Chabot. The Members of the panel here will now have 5
minutes each to ask questions.
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.
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.
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?
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.
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.
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?
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.
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.
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?
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----
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.
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.
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?
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----
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.
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.]
A P P E N D I X
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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
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
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 2
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.