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Calendar No. 568 Calendar No. 568 112TH CONGRESS REPORT " ! 2d Session SENATE 112–251 TO EXPRESS THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PRO- VIDE PARITY AND A PROCESS FOR THE RECOGNITION BY THE UNITED STATES OF THE NATIVE HAWAIIAN GOVERNING ENTITY DECEMBER 17, 2012.—Ordered to be printed Mr. AKAKA, from the Committee on Indian Affairs, submitted the following R E P O R T together with ADDITIONAL VIEWS [To accompany S. 675] The Committee on Indian Affairs, to which was referred the bill (S. 675) to express the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Ha- waiian governing entity, having considered the same, reports favor- ably thereon with an amendment and recommends that the bill (as amended) do pass. PURPOSE The purpose of S. 675 is to ensure parity in federal treatment of Native nations with whom the United States has a trust responsi- bility, to establish a process for the reorganization and federal rec- ognition of a Native Hawaiian governing entity, and to reaffirm the special political and legal relationship between the United States and the Native Hawaiian governing entity for purposes of carrying on a government-to-government relationship. BACKGROUND Native Hawaiians are the only federally-recognized Native people barred from self-determination and self-governance The Native Hawaiian people are the only federally-recognized Native people without a government-to-government relationship 29–010 VerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251 tjames on DSK6SPTVN1PROD with 2 with the Federal Government. Native Hawaiians are indigenous to the State of Hawaii—just as American Indians are indigenous to the contiguous United States and Alaska Natives are indigenous to the State of Alaska.1 S. 675 creates parity within federal policy so that Native Hawaiians will be treated as are all other Native Americans.2 I have seen so many changes in Hawai‘i and across the country, and I have been amazed at the resiliency of our Native Hawaiian people, our culture, and our language. I have witnessed profound change in the status and treatment of all indigenous peoples. Gone are the days when teaching our language was banned, when our culture and traditions were deemed unimportant. We now know that our language, culture, and traditions hold incredible wisdom about how best to live in this place we call Ha- waii.3 Having survived more than 200 years of foreign influence, the Native Hawaiian people are determined to preserve, develop, and pass on to future generations their ancestral territory and their cultural identity in accordance with their own spiritual and tradi- tional beliefs, customs, practices, language, and social institutions. Native Hawaiians preserve and perpetuate their culture, language, 1 In 2011, the State of Hawaii officially recognized the Native Hawaiian people as ‘‘the only indigenous, aboriginal, maoli population of Hawaii.’’ Act 195 (26th Haw. Leg. Sess. (2011)). ‘‘The enactment of Act 195 was yet another example of Hawaii’s ongoing desire to recognize the unique contributions and traditions of the Native Hawaiian people.’’ Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Sen. Brickwood Galuteria, Majority Leader, Hawaii State Capitol). That Native Hawaiians, Alaska Native, and American Indians are not of the same ra- cial group should not be a factor in determining who is considered ‘‘Indian.’’ Alaska Natives and American Indians of the forty-eight contiguous states have many racial differences and yet both groups are considered Indians under federal law. Despite racial differences between Indians in the lower forty-eight states and Alaska Natives, the United States Supreme Court has included Alaska Natives, non-Indians under an anthropological meaning, within the term ‘‘Indian.’’ Alas- ka Pac. Fisheries v. United States, 248 U.S. 78, 86–87 (1918) (noting that the Annette Islands were established as a reservation ‘‘for the use of the Metlakahtla Indians . and such other Alaskan natives as may join them’’). See discussion infra pp. 6–9. 2 S. Comm. on Indian Affairs: Business Meeting to consider S. 675, S. 1345, S. 1684 (Sept. 13, 2012) (statement of Sen. Daniel K. Akaka, Chairman, S. Comm. on Indian Affairs). Native Hawaiians ‘‘have yet to be afforded the same recognition as our first Americans’’ and the respon- sibility to rectify this disparity is a moral imperative on the part of the United States Federal Government. 156 CONG. REC. H700, H712 (daily ed. Feb. 23, 2010) (statement of Rep. Faleomavaega). See also Hawaiian Homeownership Act of 2011: Oversight Field Hearing on S. 65 Before the S. Comm. on Indian Affairs, 112th Cong. (Apr. 13, 2012) (statement of Melody Mackenzie, Associate Professor of Law and Director of Ka Huli Ao Center for Excellence in Na- tive Hawaiian law at University of Hawaii, Richardson School of Law) (‘‘Native Hawaiians . are . the only native group in the United States that has a long history of . federal recognition, but does not have a clearly acknowledged government-to-government relationship with the U.S. government.’’). The Congress has never properly addressed the status of Native Hawaiians and it is within Congress’ constitutional authority to do so. U.S. CONST., art. I, § 8, cl. 3. See also United States v. Lara, 541 U.S. 193, 196 (2004) (‘‘We must decide whether Con- gress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribes’ inherent legal authority. We conclude that Congress does possess this power.’’). ‘‘Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an un- broken current of judicial decisions have attributed to the United States . the power and the duty of exercising a fostering care and protection over all dependent Indian communities.’’ Sandoval, 231 U.S. at 45–46; see United States v. Kagama, 118 U.S. 375, 384–85 (1886) (‘‘From [the Indians] very weakness so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. It must exist in that government, because it never has existed any- where else; because the theater of its exercise is within the geographical limits of the United States; because it has never been denied; and because it alone can enforce its laws on all the tribes.’’). 3 Sen. Daniel K. Akaka, Final Speech to the Council for Native Hawaiian Advancement’s An- nual Native Hawaiian Convention (Oct. 5, 2012). VerDate Mar 15 2010 07:00 Dec 22, 2012 Jkt 029010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR251.XXX SR251 tjames on DSK6SPTVN1PROD with 3 and lifeways through traditional practices like ho‘oponopono (peace- making and conflict resolution), la‘au lapa‘au (traditional medi- cine), lua (martial arts), oli (chant), and hula (dance). These prac- tices help Native Hawaiians address current socio-economic condi- tions, education, health, and resource management. By encouraging traditional practices as well as civic participation, community gov- ernance, and self-sufficiency, Native Hawaiians ensure that their culture will continue for many generations to come. The Native Hawaiian people have become leaders in national ef- forts to ensure the survival and proliferation of indigenous lan- guages, and are the first Native American peoples to develop and offer Native language education programming from preschool to Ph.D.4 ‘‘For the past twenty years [Native Hawaiians] have been recognized as ‘the go-to source of support’ for Native American im- mersion and teaching methodology for endangered indigenous lan- guages.’’ 5 Native Hawaiians suffer the same consequences of negative federal treatment as American Indians and Alaska Natives, yet Native Hawaiians do not have a means to address these issues Native Hawaiian socio-economic and health conditions lag signifi- cantly behind other populations in Hawaii 6 and the nation, and re- main comparable to other Native Americans. Native Hawaiians consistently exhibit higher rates of unemployment than the state average, and are increasingly underrepresented in white-collar jobs, while remaining overrepresented in blue-collar jobs.7 In 1999, 14.1 percent of Native Hawaiian families living in Hawaii lived below the poverty level, nearly double the statewide rate of 7.6 per- cent.8 In 2010, Native Hawaiians made up the largest percentage of people, 28.7 percent, who received homeless shelter services.9 Native Hawaiian veterans also suffer disproportionately from the 4 A Timeline of Revitalization, E OLA KA ‘OLELO HAWAII: THE HAWAIIAN LANGUAGE SHALL LIVE (Nov. 17, 2012). The two leading entities in Native American language revitalization are ‘Aha Pu¯ nana Leo, Inc. and the Liaison of Ka Haka ‘Ula O Ke‘eliko¯lani, Hawaiian language col- lege established by the Hawaii State Legislature in 1997 at the University of Hawaii at Hilo. ‘‘These two entities lead a consortium of programs in Hawaii and also in the national Native American language immersion effort.’’ In Our Way: Expanding the Success of Native Language & Culture-Based Education: Oversight Hearing Before the S. Comm. on Indian Affairs, 112th Cong. (May 26, 2011) (statement of Na¯maka Rawlins, Liaison, Consortium ‘Aha Pu¯ nana Leo, Ka Haka ‘Ula O Ke‘eliko¯lani, Ke Kula ‘o Na¯wahı¯okalani‘o¯pu‘u). 5 In Our Way: Expanding the Success of Native Language & Culture-Based Education: Over- sight Hearing Before the S.
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