Providing for consideration of the bill (H.R. 505) 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 Hawaiian governing entity.

Mr. Speaker, I'm very grateful and thank you. I want to thank Mr. Bishop for his kind remarks. It exemplifies, I think, the kind of relationship we have on the Resources Committee. And I want to repeat that for those who are in their offices, maybe are not here on the floor but in their offices and may be tuning in. I want to emphasize that the tenor of his remarks and the courtesy with which he put it forward, including his sense of humor, which is well recognized in the committee and appreciated, reflects that this legislation is not only bipartisan, it's nonpartisan. That is to say, it's not a Republican issue or a Democratic issue and has never been presented on this floor, through all the different sections of the Congress, from its introduction over the past 7 years and as it has moved through the Congress over past sessions, it has never ever been presented as a partisan issue, Republican or Democrat. And I say ``nonpartisan'' because the committee reflects the full spectrum of the left of the Democratic Party and the right of the Republican Party. Whether you are characterized as a progressive or a conservative, this issue transcends that precisely for what Mr. Bishop so rightly pointed out.

This bill directly affects and only affects the ceded lands and the Hawaiian homelands and the assets associated with Native Hawaiians in Hawaii. Everybody who's on the Resources Committee and everybody who has dealt with issues that have come before the body as a whole coming out of the Resources Committee understands that there are particular and peculiar instances associated with each Member's district, whether it's salmon runs in the Northwest or whether it's water issues based on treaty obligations in the Southwest, whether it's indigenous people in Alaska or indigenous people in Hawaii. Each area has particular contexts and situations that need to be addressed legislatively. And so what the committee tries to do in a nonpartisan way is address those issues in a very specific manner so that they can be resolved without impinging on any other aspect of constitutional consideration.

Let me point out practically how that happens. For those of you who have visited Hawaii, when you land at the airport, you're landing on what's called ceded land. That ceded land produces revenue. Now, obviously the airport didn't exist back when the Kingdom of Hawaii was overthrown in 1893, and it didn't exist when the United States annexed the Kingdom of Hawaii as a territory of the United States, and that airport as it is configured today did not exist with the advent of statehood. And so what we have now is very, very valuable land producing revenue. And that's what this is all about, 1.8 million acres of ceded land coming in a continuum from the time of the overthrow of the kingdom down to the State of Hawaii today where the ownership of the land, and the benefit's very clearly recognized, including in the Admissions Act of Hawaii to the State of the Union: Public Law 8-3, March 18, 1959, which specifically requires us to address questions of benefiting Native Hawaiians through the lands that have been ceded to them or which were created for them by the Hawaiian Homes Commission Act of 1920. That's what we're dealing with here today.

So we are asking that deference be given to the committee's work, which has been nonpartisan, which has no ideological difficulties associated with it, that deference be given and understanding to what the Admissions Act requires of us.

And I find it ironic that support comes from Mr. Young, Mr. Don Young, as it came from other Republican chairmen. In fact, this was first introduced under Republican chairmen, passed under Republican chairmen. Mr. Hansen of Utah and Mr. Pombo of California and Mr. Young of Alaska, as well as Mr. Miller and Mr. Rahall, all have supported this act, as have the committees. Mr. Young is now in Alaska speaking to the Federation of Natives, of Alaskan Natives, because we recognize that there are indigenous people who were not a party to the Constitution when it was formed and first passed but have activities, and in the contemporary context, their lives' affected by how we deal with them. The Constitution requires us as a Member of Congress to be able to do that.

So what is at stake here very, very simply for the Members is that this is enabling legislation. That's all it is. This creates the opportunity for Native Hawaiians to take responsibility for their own actions with regard to the control and administration of their own assets. That is not in dispute. The land boundaries are there. The amount of money that's coming in is not in dispute. What's in dispute is who's going to control those assets. That's what this is about. This gives the opportunity to Native Hawaiians to organize themselves to come back to the Secretary of the Interior, whoever that may be, and to ask the Secretary of the Interior to recognize that governing entity over these assets. If the Secretary of the Interior disagrees with it, they have to go back to the drawing board. This is enabling legislation, and it's enabling legislation that has been put together responsibly by responsible members of the Resources Committee in consultation with one another and with various administrations, and we would ask for your favorable consideration on the floor today.

I want to thank my friend, Mr. Westmoreland, for his kind compliments that came my way. I knew something would follow on that, and of course it was his reservations about the bill.

But he cited a poll which seemed to indicate, I believe he said, that people were obviously against race-based legislation and so on. I don't blame them; I would think they would be. I'm surprised it wasn't 100 percent. But let me read what the question was. He didn't read us the question. Here's the question: ``If 505 would allow Native Hawaiians to create their own government not subject to all the same laws, regulations and taxes that apply to other citizens of Hawaii, do you want Congress to approve this bill?'' Well, I'm dumbfounded they couldn't get 100 percent against that question. And, of course, 505 doesn't do any of that; quite the opposite. As Mr. Rahall indicated, we specifically address those issues, and taxes, of course, are going to be paid.

Let me give you the Ward Research Poll, done this year, that is a real poll, and I will tell you the question: ``Have you heard of the bill, the Akaka bill?'' Yes, 84 percent. ``Do you think Hawaiians should be recognized by the U.S. as an indigenous group similar to recognition given American Indians and Native Alaskans?'' Yes, 70 percent. ``Do you believe Hawaiians have a right to make these decisions?'' Yes, 87 percent. ``Do you believe programs that have been passed by the Congress for Native Hawaiians should continue?'' Yes, 83 percent. This goes on and on at that kind of level in Hawaii.

So, I appreciate my good friend bringing up the question of polling, but I think it's useful for us to know that when the people of Hawaii are polled on an objective basis, there is overwhelming support, Republican and Democrat and independent, for resolving this issue in the manner in which 505 addresses.

Well, I regret to say that I don't have the revised language in front of me. And I understand the intent of the first amendment. Mr. Flake knows that I supported the opportunity for him to put that forward for discussion before the Rules Committee. But I'm sorry, I can't consent, despite my friendship and respect for Mr. Flake, because I'm not sure that the revised language, even if I had it in front of me, which I don't, would not be subject to the same kind of difficulty, perhaps an interpretation that we can't foresee on first glance. So I reluctantly cannot accede unanimous consent.

Would the gentleman yield?

Could I then yield to the expert on the civil rights matter? Because you did kindly bring it to my attention yesterday and we did have a discussion, so I deferred my inquiry to the expert in the House of Representatives on civil rights and Native Americans; that's Mr. Kildee. Would it be all right if I yielded to him to have a dialogue with you on this?

If the gentleman would continue to yield for a moment.

And I won't take more than a moment or two.

The question, nonetheless, as I indicated when we spoke yesterday and as I indicated to the Rules Committee, is an important one that needs to be addressed. I don't want to run anything by anybody where they might feel even for a moment that they haven't had full consideration of important fundamental issues like civil rights and equality before the law.

If the gentleman would consider the idea of not offering the amendment right now for the reasons that have been stated, we're not quite sure where we're going with it, I can assure the gentleman that, should the bill pass, it has to go to the Senate, it has to come out of the Senate, and we can address those issues, as has been done with other bills with which we are acquainted again and again. You have my word that I will sit down and go over with you in detail and in depth the issues involved here and, should the bill move forward, seek to have those addressed in whatever comes from the other body, if it's able to move forward.

Rather than having a motion to recommit, because I would ask you not to do that for the reasons already enumerated, this deserves our specific attention. And we both know, I think, what happens on a motion to recommit: people come to the floor; they see superficially what's involved. Who can argue about everybody wanting to have civil rights?

And I don't want to have to get into a debate with you about the question of recommittal. Here is what section 7 says of the bill, if you would allow me: ``Prior to conferring Federal recognition on a reorganized governing entity, the Secretary of the Interior must certify that the organic governing documents provide for the protection of the civil rights of the citizens of the entity, as well as all other persons affected by the exercise of the entity's governmental powers and authorities. In addition, the organic governing documents must be consistent with applicable Federal law. If the Secretary finds that the organic governing documents, or any part of these documents, do not meet these requirements, the organic governing documents will not be certified.''

This has to be certified by the Secretary of the Interior as meeting every Federal responsibility. Now, up until this time, and I am sure you agree, if the Speaker will just grant me a little more time and if you will, this bill has never been subject to partisan rhetoric or activity in the committee or elsewhere. From a realistic point of view, motions to recommit really have to do with who is in charge and who is not in charge and that kind of thing. I am not disputing that your question isn't real. But the motion to recommit essentially is repeating, in some fashion, without my quite knowing what the real consequences of that language would be, whereas the language that I am citing to you from section 7 has been vetted again and again and again by minority staff, majority staff, legal staff all over to fit exactly what the gentleman seeks to succeed with.

So I am asking you not to make a motion to recommit on the basis that what I have read to you, in good faith, is language that has been put forward in good faith within the existing bill. And if you conclude that it is not adequate, I pledge to you that I will certainly sit down with you as will Mr. Kildee and anyone else who is interested in it to try and see what we can do to make the language work as the bill moves along. But I don't want to get trapped in a recommital action which may then put language into the bill, the consequences of which I have no idea. Nor, I think, does the gentleman.

Your intentions are good. I have complete faith and say so publicly in your intentions and your desire to make this a better bill. So I ask you on the basis of a collegial respect for each other and on the basis of our friendship to let the bill go without a recommital based on section 7 and my promise to you that we will address any and all issues that may still be on the table once you have had a chance to examine the consequences of the language you might otherwise propose.

My difficulty is, and I'll conclude with this. Mr. Bishop, I am very appreciative of your indulgence in this and the other Members. Obviously it is very, very important to all of us and important on a fundamental constitutional basis as well. The difficulty for me in doing that is that I am seeing it right now for the first time. The language in the bill has been gone over and over and over again with a legal fine tooth comb so that I have confidence in that.

My problem is that your intention and my intention may not be what the consequences legally would be when somebody reads it as written on the paper. My friend and mentor on the Armed Services Committee, the chairman, Ike Skelton, who usually characterizes himself as a country lawyer, which should put everybody on edge and make them wary when he says it, has a saying that he admonishes us with on the Armed Services Committee all the time: Read it. What he means by that is the words on the paper are what will be referred to when legal recourse is taken. And what my fear is, is that not knowing the consequences of the language, despite the gentleman's intention, if I accepted such a thing, I am doing it on blind faith. Not on blind faith in you. I have faith in your good intentions. But I am doing it on blind faith as to what the safe harbor would be or not be or what the consequences would be. I am sorry I can't accept that and I ask you once again to give us the opportunity to work on this in the quiet and in the contemplative atmosphere outside the volatility of the floor.

Mr. Speaker, I rise in opposition to the motion to recommit.

Mr. Speaker, this bill before us is the result of years of bipartisan and nonpartisan work, which has been mentioned. I take second to none my regard for Mr. Flake and recitation once again of our personal regard for one another; however, I am afraid that the reason I have to oppose this motion to recommit is for precisely the reasons I mentioned during our previous dialog.

I am pleased that he actually read what the motion to recommit says because the part here, and you may recall in my previous commentary where I said we can't be sure what the consequences might be unless we have had a chance to vet them. The bill itself has been vetted again and again by counsel on both sides of the aisle and by groups that have an interest in the bill. This is the consensus that this meets all relevant legal technicalities.

Here, look what it says: ``The Native Hawaiian governing entity shall be subject to the United States Constitution's Bill of Rights and other protections in the same manner and to the same extent as a State or local government of the United States.'' That is an invitation to an avalanche of litigation. How are you going to define ``same manner'' and ``same extent'' of a State or local government?

The indigenous people, whether they are Native Americans in tribes, whether they are Alaska Natives in corporations, Native Hawaiians trying to put together a government, and they are not a State, they are not a local government, and to say in a motion to recommit that we are going to require them to exactly replicate State and local governments, which is subject to litigation all the time, you would have to have a trust fund set up to handle the litigation, I think, that would result from that.

Mr. Speaker, I don't think that that is Mr. Flake's intent. In fact, I would stipulate that that is not his intent. Our problem is we haven't had a chance to sit down and go over this to see whether we can cover any of these contingencies. I wish he had accepted my plea, my offer, and I wish he would stand up now and say, I have seen the light and I am going to withdraw my motion to recommit. Because if you go to number (i), applicability of Federal civil rights laws, it says the same thing with respect to civil rights and antidiscrimination laws in the same manner and to the same extent as a State or local government of the United States.

My friends, my colleagues, I agree that Mr. Flake has brought this not for political reasons but because of his sincere belief that this needs to be addressed. I can assure you that if anything is political, this is political by default. Far from saying simply that it is a simple explication of his point of view, it is an absolute wellspring of complication to try and figure out what the same extent of State and local government laws are with regard to civil rights, antidiscrimination or Bill of Rights and other protections. ``Other protections,'' what does that mean? That will be litigated to death.

So, Mr. Speaker, I ask Mr. Flake, now that I have analyzed his simple language for him, if he would reconsider withdrawing the motion to recommit. If he does not, I pledge to him now that if we are able to defeat the motion to recommit, which I think should be defeated by anybody who's worked on this bill. I make this final plea in all seriousness, Mr. Speaker. We have worked too hard, come too far on a nonpartisan basis, Republican and Democrat alike, to come to this conclusion and throw ourselves into the briar patch of State and government applicability of laws as recommended in the recommittal. The bill itself deals with all these issues on civil rights.

Mr. Speaker, I ask that the motion to recommit be defeated and that we move to a vote, an overwhelming vote on the underlying bill, H.R. 505, which is an exemplary product, a singular stalwart example of what bipartisan work can do in this House of Representatives.

Mr. Speaker, I yield back the balance of my time.

I thank my friend for yielding.

I feel like Bill Murray in ``Groundhog Day,'' the movie. I've only been in Congress for 3 years, but my respect for Mr. Abercrombie has grown. I try to take experiences with people I have differences with and learn. He is one of the most patient people that I have seen up here, and the fact that he took a big problem and has ate it just a little at a time, I admire that. And I want him to know how much respect I do have for him for his tenaciousness, and I hope I can be just as tenacious with things that are important to my constituents as he has been and also the gentlewoman from Hawaii.

Let me say that from what we have heard today, it reminds me of a story of some gentlemen down in the Okefenokee swamp that were going coon hunting. If you're not familiar with coon hunting, you use dogs and you go at night, typically build a campfire, and you all sit around and talk and gossip and share stories and some other activities sometimes while you're waiting for the dog to tree. One night this old World War I veteran was down there in the Okefenokee, and he had a wooden peg leg. It was pretty cold that night, and the dogs were out running; so he laid down and he got a little too close to the campfire and he burned off about 6 inches of that wooden leg. Well, when the dog started barking and they had really treed the coon, he was the first one up. And he got up, and he said, ``Come on, boys. Old Sam has treed one.'' And he started running off across the field with that one leg about 6 inches shorter. And after two or three steps, he turned around and he said, ``Watch out, boys. There's a hole every other step.''

Well, there are a few holes in this, and I want to try to plug up those holes today as far as what the ability of Congress is able to do and what our Constitution says.

So I rise today to oppose the legislation. I want to try to go into what this bill actually does and how it relates to what I feel like our Constitution says and what the limits of our Congress is.

Every aspect of this bill from its goal to its methods, I think, undermines the

idea that we are one that has come from many people. I think the legislation is divisive and will give a group of U.S. citizens special rights over other citizens based solely on race.

Our Constitution seeks to eliminate racial separation, not promote it. How can we promote equality while separating our people?

Some people here today have characterized this legislation as nothing more than a kind gesture to Native Hawaiians. This is not the case. This bill will not only create a new race-based government but it will allow rights and privileges to Native Hawaiian descendants throughout the United States that their neighbors and friends throughout this country do not enjoy.

The Federal Government today will decide what is best for 20 percent of the Hawaiians who have Native Hawaiian ancestry. The Federal Government should not and cannot create a new Indian tribe for ethnic Hawaiians. Congress does not have this power. The Bush administration has rightly promised to veto the bill if it passes because it will ``discriminate on the basis of race or national origin and further subdivide the American people.''

This attempt to divide America sets a frightening precedent for separating groups of Americans based on racial backgrounds. This bill is irresponsible, I believe, and simply unconstitutional.

My good friend from Oklahoma got up and spoke about that the leaders of the State want this legislation. Well, in 2006 there was a survey done of the Hawaiian people by a nonpartisan grassroots institute of Hawaii that found that 69.89 percent of Hawaii's residents want to vote on a Native Hawaiian government before it is considered at the national level, and 80.16 of Hawaii's residents do not support laws that provide preferences for people groups based on their race; 68.3 percent of residents in the First Congressional District, Mr. Abercrombie's district, want that vote; and 66.95 percent of the entire State opposed the 2006 bill to create a Native Hawaiian government.

Definition of Native Hawaiian

This bill will grant broad governmental powers to Native Hawaiians including all living descendents of the original inhabitants of Hawaii. Geographic, cultural, and political connections are not required.

This bill does not effectively define what it means to be a member of the new Native Hawaiian government. Anyone with one traceable drop of Native Hawaiian blood could claim the same right to this alternate government, regardless of how far removed they are from their ancestors or even what State they live in.

There is nothing in this bill that prohibits this newly organized government entity from including members with Native Hawaiian backgrounds from Arizona or Connecticut. Furthermore, this new government entity will then have to come up with a system for assessing and cataloguing all the people who claim to have Native Hawaiian heritage. This could be more costly and time consuming than anyone today realizes.

The new government will have authority over more than 20 percent of Hawaii's population, and possibly countless more nationwide. And no where in this legislation is there an opportunity for citizens of the state of Hawaii (Native or not) to vote to accept this newly created government. This is a Federal imposition of the worst kind, one in which the citizens who this bill affects most, have little or no say in acceptance or implementation.

In fact, a 2006 survey of the Hawaiian people done by the non- partisan Grassroot Institute of Hawaii found that:

69.89 percent of Hawaii's residents want to vote on a Native Hawaii government before it is considered at the national level.

80.16 percent of Hawaii's residents do not support laws that provide preferences for people groups based on their race.

68.3 percent of residents in the first Congressional District (Rep Neil Abercrombie) want that vote.

66.95 percent of the entire State opposed the 2006 bill to create a Native Hawaiian government.

77.83 percent of Hawaiians would vote for statehood if the vote was held today. (In 1959, 94 percent voted for statehood.)

Native Hawaiians are a Racial Group, Not a Tribe

The Bureau of Indian Affairs has seven mandatory requirements for tribal recognition. Among other things the tribe must have existed as a tribe since 1900 as documented by the state; existed as a community-- including 50% of the group residing together; and possessed governing documents and membership criteria

The Supreme Court's definition of a tribe in Montoya v. United States asserts that a `tribe' must be a united community under one leadership or government, and inhabiting a particular territory. Former Attorney General Ed Meese emphasizes the distinction between racial groups and tribes, ``If sharing one drop of aboriginal Hawaiian blood makes a tribe, then Chicanos, Latinos, African Americans, and Mexicans could become a tribe if Congress so decrees''.

Meese went on to say that the phrase ``Indian Tribe'' has a fixed and distinct Constitutional meaning that cannot be changed by a simple act of Congress. This definition limits ``tribes'' to preexisting tribes within North America, or their offshoots, that were thought to be ``dependent nations'' at the time of the framing of the Constitution. Such American Indian tribes had to live an independent existence in a separate community, apart from the rest of American society.

By these standards Native Hawaiians would never qualify as a tribe. Hawaii is the most integrated society in the U.S.--there are no Hawaiians living apart from other Americans. All U.S. citizens who reside in Hawaii are equally citizens of Hawaii and the United States and are entitled to enjoy all the privileges and immunities common to other citizens, including protection against discriminatory laws, and racially-discriminatory laws.

Even the U.S. Commission on Civil Rights have objected strongly and consistently to the `race based' classifications in this legislation. Their report released on May 18, 2006 said that passage of a similar bill would ``discriminate on the basis of race or national origin and further subdivide the American people into subgroups accorded varying decrees of privilege.''

Conservative Concerns; Congress Can't Create Tribes

Congress lacks the power to invent Indian tribes. In U.S. v. Sandoval, the Supreme Court reaffirmed that Congress can recognize existing tribes, but does not have the authority to create them. ``It is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe.''

Congress can only acknowledge groups who have long operated as a tribe with preexisting political structure and who live separately and distinctly from other communities both geographically and culturally. Neither is true of the Native Hawaiians today who live in different States, and under different State laws and systems, and who for years have co-existed in the same communities with non-Native Hawaiians.

Community Distinctions

The fact that Native Hawaiians have lived and currently live in Hawaii in the same communities as non-native Hawaiians will cause many potential problems should this bill become law--in effect creating one set of laws for Native Hawaiians and a potentially drastic different set of laws for non-native Hawaiians living in the same house.

Different codes of law would apply to people differently based on race, even though all Hawaiians now currently live and function in one community, attend the same churches, shop at the same stores and attend the same schools. One business may be exempt from State taxes, State business regulations, and zoning laws while the other one is not. Because of this, the Native Hawaiian Government Reorganization Act could be found in violation of the 14th amendment equal protection clause.

Bill Provisions:

Creation of New Federal Offices: This bill will create a Native Hawaiian Relations Office within the Department of Interior and a new interagency coordinating group to coordinate political and legal relationships between the new tribe and all agencies of the U.S. Federal government.

Formal Negotiations--Government to Government: This legislation would allow for negotiations between the three governments, the United States, the State of Hawaii, and the new Native Hawaiian government. The Native Hawaiian people would be able to negotiate with these governments on the transfer of lands, natural resources, and other assets and the authority over these transferred lands.

The Native Hawaiians could renegotiate the exercise of civil and criminal jurisdiction in their government, possibly changing which laws or even Constitutional rights they will adhere to by having the option of redrawing various jurisdictional lines. This new government will also be able to negotiate on the delegation of powers and authorities they have from the Federal and State government and possible reparations or grievances for historical wrongs committed against Native Hawaiians.

Hawaii Cases--Race

Rice v. Cayetano--2000: Currently there are more than 150 statutes that confer Federal benefits to the Native Hawaiian people. Rice v. Cayetano put many of these benefits in jeopardy and casts serious doubt on the Constitutionality of this legislation.

The Court hold that the State of Hawaii's limitation on voting for certain posts to only

``Native Hawaiians'' contradicted the Fifteenth Amendment because it used ancestry as a substitute for race.

Morton v. Mancari--1974: In this 1974 case, the Court noted there was a large distinction between a racial group consisting of ``Indians'' and a political group, a federally recognized tribe.

The Court asserted that all government programs that extend benefits according to racial classifications must be ``strictly scrutinized'' and are presumed invalid under the Equal Protection Clause of the Fourteenth Amendment.

The Hawaiians--pushing for the passage of this bill before us today-- seek to provide a process for the United States to recognize Native Hawaiians as a governing tribe that is political in nature. The stated goal of this legislation is to ensure that ``Native Hawaiians are treated as a unique and distinct, indigenous, native people with whom the U.S. has a special political and legal relationship.''

Mr. Speaker, I rise in support of the rule. I thank Chairman Slaughter and Vice Chair McGovern for the rule which fairly gives the only amendment to be filed due consideration pursuant to House rules. I disagree with the amendment because it, if adopted, unnecessarily creates confusion where none exists.

The Native Hawaiian Government Reorganization bill is a good one, the result of over 6 years of fine-tuning and negotiations, including significant compromises with the Department of Justice, Department of the Interior, and the Office of Management and Budget to conceive a law that should be approved by all persons concerned with the welfare of Native Hawaiians.

This bill is supported by the Republican Governor of the State of Hawaii, the Hawaii State legislature, the American Bar Association, the National Congress of American Indians, the National Education Association, the NAACP, League of United Latin American Citizens, and dozens of other civil rights, professional associations and unions.

I will enter into the Record a list of all supporters of this measure, as well as letters of support from the Governor of the State of Hawaii, Linda Lingle; the American Bar Association; National Congress of American Indians; and the Japanese American Citizens League, and thank them for their wholehearted support.

Mr. Speaker, let me close by quoting a sentence from the letter from the National Congress of American Indians, which is of particular relevance to the proposed amendment to be offered. ``To invoke the equal protection or due process clause of the Constitution in this context, as some of the legislation's critics attempt to do, is a perversion of what those clauses were intended to do. Those submitting this argument are using the very cornerstones of justice and fairness in our democracy to deny equal protection to one group of indigenous people.''

Mr. Speaker, I urge this body to adopt the rule so we may get on to the merits of this important legislation that will at long last afford the Native Hawaiian people self-determination and self-governance long given to other indigenous people of the United States but denied to Native Hawaiians.

S. 310/H.R. 505: Native Hawaiian Government Reorganization Act--To

Express the Policy of the U.S. Regarding the U.S. Relationship With Native Hawaiians and To Provide a Process for the Recognition by the

U.S. of the Native Hawaiian Governing Entity

Standing together for justice

The following groups, entities and individuals from around

the islands and across the Nation have pledged their support

for Native Hawaiian self-determination through federal

legislation extending a process of official recognition to

Native Hawaiians as the indigenous people of Hawai`i, similar

to the existing federal policy available to American Indians

and Alaska Natives:

Hawai`i organizations & entities

Alu Like, Inc.; Alan M. Arakawa, Mayor, County of Maui;

Association of Hawaiian Civic Clubs; Council for Native

Hawaiian Advancement; Daughters and Sons of Hawaiian

Warriors--Mamakakaua; Hale O Na Ali`i O Hawai`i; Hawaii

Carpenters Union; Hawaii Government Employees Association

(HGEA); Hawaii State AFL-CIO; Hawai`i State Legislature; and

Hawai`i State Teachers' Association.

Hawaiian Homes Commission; Hui Hanai; Hui Kako`o `Aina

Ho`opulapula; I Mua Group; International Longshore and

Warehouse Union (ILWU); Japanese American Citizens League

(Honolulu Chapter); Kamehameha Schools; Kamehameha Schools

Alumni Association (KSAA); Ko`olaupoko Hawaiian Civic Club;

and Kualoa-Heeia Hawaiian Civic Club.

Linda Lingle, Governor, State of Hawai`i; Nanakuli Housing

Corporation; National Association of Social Workers (Hawaii

Chapter); Native Hawaiian Chamber of Commerce; Native

Hawaiian Economic Alliance; Office of Hawaiian Affairs; Royal

Order of Kamehameha 1; and State Council of Hawaiian

Homestead Associations.

National, regional & international entities

Affiliated Tribes of Northwest Indians (ATNI)--Established

in 1953, ATNI represents and advocates for regional, national

and specific Tribal concerns. It is comprised of 54 Northwest

Tribal governments from Oregon, Idaho, Washington, southeast

Alaska, northern California and western Montana.

Alaska Federation of Natives (AFN)--AFN is the largest

statewide Native organization in Alaska. It represents over

200 Alaska Native villages, corporations, and associations.

AFN's mission is to enhance and promote the cultural,

economic, and political voice of the entire Alaska Native

community.

American Bar Association (ABA)--The American Bar

Association is the largest voluntary professional association

in the world. With more than 400,000 members, the ABA

provides law school accreditation, continuing legal

education, information about the law, programs to assist

lawyers and judges in their work, and initiatives to improve

the legal system for the public.

Association of Asian Pacific Community Health Organizations

(AAPCHO)--AAPCHO is a national association representing

community health organizations dedicated to promoting

advocacy, collaboration and leadership that improves the

health status and access of Asian Americans, Native Hawaiians

and Pacific Islanders within the United States, its

territories and freely associated states, primarily through

member community health clinics.

Governors' Interstate Indian Council (GIIC)--Represents 21

state Indian Affairs agencies and organizations.

Inter Tribal Council of Arizona (ITCA)--Established in

1952, ITCA is comprised of 19 member tribes and provides a

united voice for tribal governments located in the State of

Arizona.

Japanese American Citizens League (JACL--National)--JACL is

the Nation's oldest and largest Asian Pacific American civil

rights organization, with over 24,000 members in 23 states.

Leadership Conference on Civil Rights (LCCR)--LCCR consists

of more than 180 national organizations, representing persons

of color, women, children, labor unions, individuals with

disabilities, older Americans, major religious groups, gays

and lesbians and civil liberties and human rights groups.

League of United Latin American Citizens (LULAC--

National)--With approximately 115,000 members throughout the

United States and Puerto Rico, LULAC is the largest and

oldest Hispanic organization in the United States.

League of United Latin American Citizens (LULAC--

California).

Mexican American Legal Defense and Educational Fund

(MALDEF)--MALDEF is the leading nonprofit Latino litigation,

advocacy and educational outreach institution in the U.S.

Asian American Justice Center (AAJC)--AAJC, formerly the

National Asian Pacific American Legal Consortium, is one of

the Nation's leading experts on issues of importance to the

Asian American community including: affirmative action, anti-

Asian violence prevention/race relations, census, immigrant

rights, language access, and voting rights.

National Association for the Advancement of Colored People

(NAACP)--The NAACP is the Nation's oldest and largest civil

rights organization. Its half-million adult and youth members

throughout the United States and the world are the premier

advocates for civil rights in their communities while

conducting voter mobilization and monitoring equal

opportunity in the public and private sectors.

National Association of Social Workers (NASW)--The National

Association of Social Workers represents over 150,000 social

workers in the U.S.

National Coalition of Asian Pacific Americans (NCAPA)--

NCAPA is a coalition of the Nation's leading Asian Pacific

American organizations. It represents the interests of the

greater APA community and provides a national voice on APA

issues.

National Coalition for Asian Pacific American Community

Development (National CAPACD)--National CAPACD's mission is

to enhance the capacity and ability of community based

organizations to conduct community development activities for

the Asian and Pacific Islander American communities.

National Congress of American Indians (NCAI)--NCAI is the

Nation's oldest and largest American Indian and Alaska Native

organization that represents over 250 member tribes.

National Council of La Raza (NCLR)--NCLR is the largest

constituency-based national Hispanic organization, serving

all Hispanic nationality groups in all regions of the

country. NCLR has over 270 formal affiliates who together

serve 40 states, Puerto Rico, and the District of Columbia--

and a broader network of more than 30,000 groups and

individuals nationwide--reaching more than three and a half

million Hispanics annually.

National Indian Education Association (NIEA)--Established

in 1969, NIEA is the largest national Indian organization of

American Indian, Alaska Native and Native Hawaiian educators,

administrators, parents and students in the United States,

providing a forum to discuss and act upon issues affecting

the education of indigenous people.

National Organization of Pacific Islanders in America

(NOPIA)--NOPIA is dedicated to ensuring the protection of

rights and fair treatment of all Pacific Islander Americans

through legislative and policy initiatives at all levels of

government.

Organization of Chinese Americans (OCA)--OCA is dedicated

to securing the rights of Chinese American and Asian American

citizens and permanent residents through legislative and

policy initiatives at all levels of the government. OCA aims

to embrace the hopes and aspirations of the nearly 2 million

citizens and residents of Chinese ancestry in the United

States as well as to better the lives of the 10 million Asian

Americans across the country.

Tribal Education Departments National Assembly (TEDNA)--A

membership organization for the Education Departments of

American Indian and Alaska Native Tribes.

United South and Eastern Tribes (USET)--USET is an inter-

tribal organization that collectively represents its 24

federally recognized member Tribes at the regional and

national level. USET is dedicated to promoting Indian

leadership, improving the quality of life for American

Indians, and protecting Indian rights and natural resources

on tribal lands.

Virginia Indian Tribal Alliance For Life (VITAL)--An

independent public organization, established to support

Virginia Indian Initiatives by funding lobbyist and

bipartisan political campaigns which support the needs of

Virginia Indians in education, healthcare and economic

development.

Commonwealth of the Northern Mariana Islands Public Lands

Authority--Established by the Constitution of the

Commonwealth of the Northern Mariana Islands to manage and

dispose of the public lands for the benefit of the people of

the Commonwealth who are of Northern Marianas descent.

National Federation of Filipino American Associations--

Hawaii Pacific Region 12 (NaFFAA--HPR 12)--NaFFAA was

established in 1997 to promote the welfare and well-being of

all Filipinos and Filipino Americans throughout the U.S., and

Region 12 is Hawai'i, Guam and Commonwealth of Northern

Mariana Islands.

Individual Supporters: Joe Shirley, President, Navajo

Nation.

Introducers of S. 310 on 1/17/07: Senator Daniel K. Akaka

and Senator Daniel K. Inouye.

S. 310 Co-Sponsors: Senator Maria Cantwell on 1/17/07,

Senator Norm Coleman on 1/17/07, Senator Byron L. Dorgan on

1/17/07, Senator Lisa Murkowski on 1/17/07, Senator Gordon H.

Smith on 1/17/07, Senator Ted Stevens on 1/17/07, and Senator

Christopher J. Dodd on 1/17/07.

Introducers of H.R. 505 on 1/17/07: Representative Neil

Abercrombie and Representative Mazie Hirono.

H.R. 505 Co-Sponsors: Delegate Madeleine Z. Bordallo on 2/

27/07, Delegate Eni Faleomavaega on 2/27/07, and

Representative James P. Moran on 2/27/07.

Mr. Speaker, I want to thank my friend and namesake from Florida (Mr. Hastings) for yielding me the customary 30 minutes, and I yield myself such time as I may consume.

(Mr. HASTINGS of Washington asked and was given permission to revise and extend his remarks.)

Mr. Speaker, the underlying legislation, offered in good faith by my friend and colleague from Hawaii (Mr. Abercrombie), would create a process, and I want to emphasize ``process,'' because that is what this is, for establishing and recognizing a Native Hawaiian government entity that would be empowered to act on behalf of its members with the State and Federal Government.

However, Mr. Speaker, as the Wall Street Journal noted in 2005, the practical effect of granting this status to self-identified Native Hawaiians would be to allow this new class of American citizens to declare, and I quote again from the Wall Street Journal, ``complete legal and territorial independence from the United States and the establishment of a Hawaiian nation-state.''

Mr. Speaker, before this statement is dismissed out of hand as a completely unbelievable statement dreamed up by the editorial board of the Wall Street Journal, I should mention that they were not the ones that were making this claim. They were merely reporting on a statement made by the State Office of Hawaiian Affairs, which first acknowledged this fact.

In addition, a recent statement made by the U.S. Civil Rights Commission raised concerns that this legislation, and, again, I quote from the U.S. Civil Rights Commission, ``would discriminate on the basis of race or national origin and further subdivide American people into discrete subgroups according to various degrees of privilege.''

Despite the best efforts of this legislation's advocates to compare Native Americans with Native American tribes who govern reservations and often live on them, this legislation would make it possible for our next-door neighbors in Hawaii to suddenly coexist under different legal regimes, a clear violation of the 14th amendment of the Constitution's equal protection clause.

Mr. Speaker, because this legislation would grant broad governmental powers to a racially defined group, to include all living descendants. The new Native Hawaiians created by this bill would need no geographic, political or cultural connection to Hawaii, much less a physical connection to a distinct Native Hawaiian community. As the Federal courts have recently explained, this is problematic. Again, I quote the Federal courts: ``The history of the indigenous Hawaiians is fundamentally different from that of indigenous groups in federally recognized Indian tribes in the continental United States.''

Finally, Mr. Speaker, this legislation raises significant constitutional concerns, which have been raised on other bills this year, namely, H.R. 8345, the Hawaiian Ownership Act of 2007, which the House considered in March of this year. The Hawaiian Township Act initially failed under suspension of the rules because 162 Members of the House recognized, and in 2000, the Supreme Court ruled in Rice v. Cayetano, that the current configuration of Justices would likely strike down the Federal benefits flowing to Native Americans as an unconstitutional racial set-aside, if given the chance.

Mr. Speaker, I believe that there are legitimate constitutional concerns that must be addressed in the underlying Native Hawaiian Government Reorganization Act. I am pleased, Mr. Speaker, that the rule makes in order an amendment to be offered by Mr. Flake of Arizona that would attempt to address the constitutional concerns and ensure the underlying legislation complies with the equal protection clause of the 14th amendment of the United States Constitution.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I reserve my time,

Mr. Speaker, I yield myself such time as I may consume.

I appreciate my friend from Hawaii's clarification on this, and I just want to point out a couple of things in my opening remarks.

I emphasized that this is a process which I think acknowledges the fact that there is a history that goes back to when Hawaii was a kingdom, and so I acknowledge that point. But I simply raise those issues because those issues I think are important when we talk about the United States as a whole, as a government under laws and everybody being treated equal, and these are questions that I think need to be addressed.

I appreciate very, very much my friend's clarification on this. The point that this is a process and the point that there is some lineage going back from a State to a territory to a kingdom probably has some viability to it.

But there are always unintended laws when we write national laws that appeal to one State or one set of people. That is what we have to be cautious about. That is why I simply raise these concerns. The issue is before us. We have a rule and we have made in order an amendment that deals with the 14th amendment. I think that is important to be discussed, and I doubt if this issue will be completely decided here today.

With that, I reserve the balance of my time.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, I will be asking Members to oppose the previous question so that I may amend the rule to have Speaker Pelosi, in consultation with Republican Leader Boehner, immediately appoint conferees to H.R. 2642, the Military Construction and Veterans Affairs Appropriations Act for 2008.

Two days ago a number of news publications, including Roll Call, reported that the Democrat leadership intends to play political games and hold off on sending any appropriations bills to President Bush so that they can use an upcoming anticipated veto of the Labor-HHS appropriations bill to serve as ``an extension of their successful public relations campaign on the State Children's Health Insurance Program.'' Roll Call is the one that made that observation on October 22, 2007.

While the House Democrat leadership plays politics on this issue, however, our Nation's veterans are paying the price. The Senate has already done its work and appointed conferees for this bill. And for every day that House Democrats allow the veterans funding bill to languish without conferees for their only political advantage, our Nation's veterans lose $18.5 million, money that could be used for veterans housing, veterans health care, and other important veterans support activities.

On October 18, American Legion National Commander Marty Conaster, five national vice commanders and all 55 Legion national executive committee members sent Speaker Pelosi a letter pleading with her to put partisanship aside and provide this funding for the troops.

Mr. Speaker, I include a copy of the letter for the Congressional Record.

The American Legion,

Indianapolis, IN, October 18, 2007.

Hon. Nancy Pelosi,

Speaker, House of Representatives,

Washington, DC.

Dear Speaker Pelosi: Today ends the Fall meeting of The

American Legion's National Executive Committee, at The

American Legion's National Headquarters in Indianapolis,

Indiana. The National Executive Committee consists of an

elected leader from each of The American Legion's 55

Departments (50 States, the District of Columbia and four

foreign countries). In accordance with The American Legion's

National Constitution and By-laws, the National Executive

Committee serves as The American Legion's governing body.

The National Commander Marty Conatser briefed The National

Executive Committee on an array of issues to include the

status of the VA budget for FY 2008. The fiscal activities of

the 110th Congress--the FY 2007 Continuing Resolution, the

Budget Resolution for FY 2008, and the passage of the

Military Construction, Veterans' Affairs and Related Agencies

Appropriations for FY 2008 were reviewed.

However, in trying to grasp why such a bipartisan bill,

which passed overwhelmingly in both chambers, still hasn't

moved in over a month is rather difficult, especially since

the President has already said he would not veto the bill,

even though it exceeds his recommendations. Understanding why

the appropriations process has come to a complete halt is

difficult. What is preventing the appointment of conferees,

the Conference Committee, or passage of a Conference Report?

We are now in the new fiscal year with no idea when the Mil

Con-VA appropriations will be passed. If history repeats

itself, this standoff may last well into the second quarter

of the fiscal year. This uncertainty is disturbing to not

only The American Legion and other veterans' and military

service organizations, but to every veteran who is dependent

on VA for timely access to quality health care, earned

benefits, and other services provided by a grateful nation.

Madam Speaker, the newest generation of wartime veterans

are reporting to VA medical facilities every day as troops

are returning from deployments to Iraq and Afghanistan. Some

will be determined to be service-connected disabled because

of medical conditions incurred or aggravated while on active-

duty. Others may very well have invisible scars that need

attention as soon as possible. As VA welcomes new patients,

the existing patient population cannot be ignored nor should

their health care be rationed due to limited available

resources. There are veterans dependent on VA as their life-

support system.

The American Legion represents 2.6 million wartime

veterans, but also speaks for the 24 million veterans of the

United States Armed Forces and their families.

Please continue the appropriations process--name conferees,

convene the Conference Committee, and pass the Conference

Report.

Sincerely,

Marty Conatser, National Commander; Thomas L. Burns, Jr.

(DE), National Vice Commander; Randall A. Fisher (KY),

National Vice Commander; David A. Korth (WI), National

Vice Commander; James L. Van Horn (AK), National

Executive Committeeman; Ross Rogers (AK), National

Executive Committeeman; Peggy G. Dettori (AK), National

Vice Commander; Donald Hayden (MN), National Vice

Commander; Floyd W. Turner (AL), National Executive

Committeeman; Julius Maklary (AZ), National Executive

Committeeman; James W. Hackney (CA), National Executive

Committeeman.

Jeff Luginbuel (CO), National Executive Committeeman;

John J. Jackson (DE), National Executive Committeeman;

Robert J. Proctor (FL), National Executive

Committeeman; Ray Hendrix (GA), National Executive

Committeeman; Cleve Rice (ID), National Executive

Committeeman; W. Darrell Hansel

(IN), National Executive Committeeman; David O. Warnken

(KS), National Executive Committeeman; Charles D.

Aucoin (LA), National Executive Committeeman; Dr.

Gordon B. Browning (MD), National Executive

Committeeman; Richard W. Anderson (CT), National

With that, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

I thank the gentleman for yielding.

I have an amendment that has been made in order which I plan to offer later.

When I came on the floor yesterday, I was approached by several Members who pointed out that my amendment was, perhaps, overly broad. I went back to the office and took a look, and I

happen to agree, it is. And it might confuse people. Because in my original amendment I said nothing in the action will relieve any sovereign entity within the jurisdiction of the United States, including the Native Hawaiian governing authority, from complying with the equal protection clause of the 14th amendment of the United States Constitution.

And so I would like to see if the proponents of the measure would agree to a unanimous consent request to narrow the amendment so that it would simply apply only to the Native Hawaiian governing authority, as opposed to the Native American or any sovereign entity within the United States.

I would yield to the gentleman from Hawaii.

I thank the gentleman.

Let me just state what the narrowed one would do: ``Nothing in the act shall relieve the Native Hawaiian governing authority from complying with the equal protection clause of the 14th amendment to the United States Constitution.''

I'm not trying to play a game of ``gotcha'' here at all. I have the utmost respect, and that respect has grown over the years, for the gentleman from Hawaii. No Member of Congress works harder for his constituents and is more thoughtful in legislating than Mr. Abercrombie. But for those of us who have some concerns that this goes beyond land disposition or other smaller issues, this is not an idle concern that we have.

The U.S. Civil Rights Commission noted recently that this legislation ``would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups according to varying degrees of privilege.''

I would be glad to yield.

That would be fine with me.

Yes.

I would.

I thank the gentleman, and I thank him for providing the text of ICRA yesterday. I did read through it and was convinced and compelled that my original amendment was overly broad, and that's why I sought to restrict it here.

Seeing that we cannot restrict it, I will withdraw the amendment. But I will offer the motion to recommit later. And the motion to recommit is pretty much similar to what the amendment would have been, further restricted.

I take the gentleman's concerns. We don't know what the implications will be with the amendment, but I would submit that we don't really know what the implications might be without the amendment. And what the motion to recommit will do will simply have three sections. It's just one page here. It will say that what will apply is the U.S. Constitution's Bill of Rights, the Federal civil rights laws, and that no racially defined burdens of immunities, so we will make sure that no persons shall, as a result of the operation of this act, be exempted from any Federal or State law, regulation tax or legal burden that is the basis of the law.

I would say that it is true, this needs to go to the Senate and then come back here. And if there are problems in that this is overly broad, the motion to recommit, then that, perhaps, can be fixed as the bill works its way through. But I think that, because we swear an oath to uphold the Constitution, that we should endeavor to make sure that what we pass does not run afoul of, in particular, the 14th amendment.

I understand the gentleman's concerns in talking about ICRA of 1968, but I think we can all agree here that the sovereign nature of Native American tribes in the United States is a little different than what we're talking about here.

So, I think it would behoove us to be careful here and to make sure that we aren't doing anything that might upset the applecart, that we need to make sure that we're not creating something here that might run afoul of the Constitution. I think that's our obligation.

So, that's what the motion to recommit will be. It will be ``forthwith,'' so this will not take any time. It won't have to come back to committee. And I will be glad to give copies across so people can be familiar with it before we're voting on it.

But, again, this is not a game of ``gotcha'' at all. I have great respect for those on the other side of the aisle who have worked hard on this legislation.

With that, I would yield to the gentleman from Hawaii.

I appreciate the gentleman's concern about motions to recommit. They are sometimes by their nature political. I don't always vote for the ones offered by my side because of that. However, I am only going to the motion to recommit now because I can't offer my amendment as modified. I would be glad to forgo offering the motion to recommit if I could get a commitment under unanimous consent to restrict my amendment to what I outlined, and I will be glad to read it again. If it is true that the legislation does address this concern, it would be redundant at best, or at worst, but it would at least give us here, and I think, frankly, there is a pretty safe harbor I would think for those of us who are concerned about the constitutionality in saying that this legislation should have the Bill of Rights apply to it, Federal civil rights laws, and there would be no racially defined burdens or immunities. So that is a pretty safe harbor, and I am not seeing it as political. But I would be glad to withdraw that if we could go back and have my amendment accepted as modified.

I thank the gentleman.

I think that we can work with this in the quiet if we simply accept the motion to recommit or preferably the actual amendment that simply says, and let me read it again, ``Nothing in the act shall relieve the Native Hawaiian governing authority from complying with the equal protection clause of the 14th amendment to the United States Constitution.'' That's a pretty safe harbor. And I think that if it goes to the Senate and we find there is something in there that needs to be modified or tweaked, we can do that as the bill comes back. But we ought to have at least that, I would submit. And so with the knowledge that we can't modify that, then we will offer the motion to recommit later.

Mr. Speaker, I have a motion to recommit at the desk.

In its current form.

Mr. Speaker, as I mentioned before, I originally had an amendment that I would have liked to have offered which would simply say that we would add the following: ``Nothing in this act shall relieve a Native Hawaiian governing authority from complying with the equal protection clause of the 14th amendment to the United States Constitution.''

This motion to recommit is very similar to that.

As I mentioned before, the U.S. Civil Rights Commission has concerns about the legislation. They said, ``This would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.''

I think there is sufficient concern that we should find the safe harbor here of making sure that the 14th amendment applies. This motion to recommit, I will read the entire thing, it is not long. So I will read all of it.

It simply says: ``Page 44, after line 22, insert the following: Applicability of

the United States Constitution's Bill of Rights. The Native Hawaiian governing entity shall be subject to United States Constitution's Bill of Rights and other protections in the same manner and to the same extent as a State or local government of the United States.

``Section (i). Applicability of Federal civil rights laws. Shall be subject to civil rights and antidiscrimination laws in the same manner and to the same extent as a State or local government of the United States. Section (j). No racially defined burdens or immunities. No person shall, as a result of the operation of this Act, be exempted from any Federal or State law, regulation, tax, or other legal burden on the basis of that person's race or ancestry or on the basis of any classification that is defined by race or ancestry.''

This is a pretty good default, a default back to the Constitution, and says that nothing in this act has to be compatible, has to fit within the Constitution. That is all that this motion to recommit does. Some will raise the concern that this might apply to Native American groups here on the mainland. It does not. This only applies to this act, to the Native Hawaiian governing entity.

Mr. Speaker, this is a very narrowly drafted motion to recommit. It is drafted ``forthwith'' so it will come immediately back so it won't spend any more time in committee. Then, if there are issues unforeseen, when it goes to the Senate and comes back, we can work on them. But in the meantime, I think it is a much better option to actually have this default and to go back to the U.S. Constitution.

The gentleman mentioned earlier that the act provides that the Secretary of the Interior has to certify that we are in compliance with the U.S. Constitution. I would just state for the record that we haven't had the best record relying on the Secretary of the Interior to manage trust accounts or other things. We shouldn't delegate that authority here. We shouldn't delegate our responsibility to uphold the Constitution to an official in the executive. That is our purpose here. We make the laws. We should ensure that they are given the guidelines and given the protections here that the Constitution affords.

So I would urge adoption of the motion to recommit. As I mentioned, I offered it reluctantly. I would have rather, because motions to recommit sometimes become political, and this is not, so I would have preferred to offer this as a straight amendment narrowed to this specific act, but wasn't afforded that opportunity.

Mr. Speaker, I also want to say again that I want to commend those on the other side of the aisle for working so hard on this legislation and for their diligence in working to make sure that this is a good bill. This will improve it. This will simply say that those under this act are afforded the guarantees and the protections of the U.S. Constitution and the Bill of Rights.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.