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…
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.''