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HomeMy WebLinkAboutCOM 0350.001 2002-2004 ~r t Tl~.e Ara.ka~Ci S~i>t 8~ ~al~a` 'l~ ~.~~ir>ried x:: . ~.-t , ~ _ _ _ - - _ _ ~ ~ t .i _ _ _ . ~ ''T r: R "ci '°.yg' I~ N! ` 11 li a 1 I OO~~jj 1 ~ it _ ~/7.C~ "[:o~unty Cv~ntll ( Coll~lwcil for lYc~#iue Haatwa~ii~l~n ~4d,vancement a Public Policy Project of State Council of Hawaiian Homestead Associations Hui Kako`o `Aina Ho`opulapula Tony Sang, Chairman Blossom Feiteira, President 905 Umi Street, Suite 103 Comm. No. • ~ P•O. Box 37958 Honolulu, Hawaii 96819 Re/. Tod""°~ Honolulu, Hawaii 96837 www.schha.org Rif Db~: www.hawaiianlands.com ~ ~ The SCHHA/Hui Public Policy Project The SCHHA/Hui Public Policy Project is designed to provide beneficiaries of the Hawaiian Homes Commission Act and the Native Hawaiian community with information on the federal legislative processes and how public policy is formed. With workshops, briefings, and educational materials, the Project aims to enhance the ability of beneficiaries to participate in the formation of the public policies that affect them. It is made possible through the support of the Department of Hawaiian Home Lands. State Council of Hawaiian Homestead Associations & Hui Kako~o ~Aina Ho°opulapula The SCHHA/Hui Public Policy Project is an initiative of the State Council of Hawaiian Homestead Associations (SCHHA) and Hui Kako'o 'Aina Ho'opulapula (Hui). The SCHHA and Hui work to protect and preserve the Hawaiian Home Lands Trust and envision a trust governed and operated in perpetuity by its beneficiaries. For more information on the SCHHA and Hui visit their websites at www.schha.org and www.hawaiianlands.com. The Council for Native Hawaiian Advancement Research and technical support for the SCHHA/Hui Public Policy Project is provided by the Council for Native Hawaiian Advancement (CNHA). CNHA is a nonprofit organization that works to empower Native Hawaiians by providing training, technical assistance, research, advocacy, and opportunities to convene for Native Hawaiian organizations and communities. Consistent with its philosophy of Native empowerment, CNHA is a membership organization, governed by the Native organizations and communities it serves. All Rights Reserved ©Council for Native Hawaiian Advancement, 2003. No part of the Reference Booklet or Presentation Material is to be reproduced or adapted to other works without written permission from the Council for Native Hawaiian Advancement except in the case of brief quotations embodied in articles or reviews. Revised: June, 2003 State Council of Hawaiian Homestead Associations 905 Umi Street, Suite 103 Honolulu, HI 96819 • • Hui Kako'o'Aina Ho'opulapula P.O. Box 37958 Honolulu, HI 96837 June 2003 Aloha Kakou! Welcome to this workshop coordinated under the State Council of Hawaiian Homestead Associations (SCHHA) and Hui Kako'o Aina Ho'opulapula (Hui) Public Policy Project. Developed to enhance Native Hawaiian leadership in policy initiatives and Native Hawaiian participation in the federal legislative arena, the SCHHA/I-IUI Public Policy Project will provide comprehensive workshops, training and technical assistance focused on the following: 1) Workshop Series 1 -Lawsuits and Legislation. A 3-hour workshop on the Lawsuits filed against Hawaiians and our programs and a review of the Federal Recognition Bill pending in the Congress, one of the most important public policy initiatives affecting our people. 2) Workshop Series 2 -Government 101. A 2-hour workshop on the federal government, its departments and agencies, the Congress and how federal policy is formed. 3) Workshop Series 3 - A Beneficiary's Guide to the Federal Trust Responsibility. A 3- hourworkshop on various federal laws, including the Hawaiian Homes Commission Act of 1920, to further the understanding and what they mean to both Hawaiians and non- Hawaiians. We would like to thank the Hawaiian Homes Commission and its Chairman, Micah Kane, for their support of this project. The energy with which they embraced the concept of empowering our communities is inspiring and gratifying. We are also thankful for the leadership of Charlie Rose and the Association of Hawaiian Civic Clubs (AoHCC), which has joined the SCHHA and Hui to present these workshops to our Hawaiian ~Ohana. Finally, we are proud to partner with the Council for Native Hawaiian Advancement (CNHA) as our Technical Assistance Provider for this project. We appreciate the quality, dedication and enthusiasm they have brought to our team. Mahalo for your interest and participation in this workshop. Wi Warme t Aloha, G~~~\~ 6's~yl~Zu~~l To San Chairman Blossom Ferteira, President State Cil of Hawai n Homestead Associations Hui Kako'o 'Aina Ho'opulapu]a 4~ o E H1 0 Nti! 4' • '~t 9 ~ ~ LINDA LMGLf `N' - cov[.Ri~.~r: d ~ MI CHIAI, MRANR SiPTF. Oi k:'wAl; HAWAIIAN HOMF$ COMMIS510.N ~Orw~NET~ BEN HFJ'BIERSON OE%RT TO THE Ll1AIRMAN STATE OF HAWAII KAULANA H. PARK EXEMI VE ASSISIANf DEPARTMENT OF HAWAllAN HOME LANDS PO. BOX IB79 HONOLULU, HAWAII 96805 June 2003 Aloha Workshop Participants: On behalf of the Hawaiian Homes Commission and all of the staff at the Department of Hawaiian Home Lands, we congratulate the State Council of Hawaiian Homestead Associations and Hui Kako'o 'Aina Ho'opulapula for their initiative and drive in creating the SCHHA/HUI Public Policy Project. As a supporter of this project, we are pleased to witness the leadership and desire to share important information in the homestead communities, with our homestead applicants, and beyond. With this Public Policy Project, we know that these organizations are doing their part to empower individuals and rnt:ire communities to chart their own course. We promise to continue to support these efforts and to work in tandem with our Hawaiian communities to realize the full potential of the Hawaiian Home Land Trust and the vision of Prince Kuhio. The SCHHA/HUI Public Policy Project, in partnership with the Association of Hawaiian Civic Clubs, is an outstanding initiative that will prepare generations of Hawaiians to carry the torch of responsibility we all have for one another. Thank you for your participation in these educational workshops. We wish you well and hope that you will benefit from the sharing of mana'o on the variety of public policy issues that impact all of our communities. Micah A. Kane, Chairman Hawaiian Homes Commission Ho•omoe wai kahi ke kao'o Let's all travel Zike water flowing in one direction Association of Hawaiian Civic Clubs P. O. Box 1135 Honolulu, Hawaii 96807 Aloha Kakou! The Association of Hawaiian Civic Clubs is pleased to join with the State Council of Hawaiian Homestead Associations and the Hui Kako`o `Aina Ho`opulapula in these important workshops on Lawsuits and Legislation. The Association of Hawaiian Civic Clubs is a confederation of forty-nine (49) civic clubs located throughout the state of Hawaii and in the states of Alaska, California, Colorado, Nevada and Utah. We are the oldest community-based grassroots Hawaiian organization, having been fonned eighty-five (85) yeazs ago in 1918 by Prince Jonah Kuhio Kalanianaole, the first Native Hawaiian delegate to Congress and author of the Hawaiian Homes Commission Act. Because we were founded by the same person, the Civic Club movement has a special bond with Department of Hawaiian Homes Lands, the homestead lessees and those on the waiting list. After all, we are family-we aze `ohana. In honoring our relationship with the homestead lessees, the State Council of Hawaiian Homestead Associations and Hui Kako`o `Aina Ho`opulapula, we are proud to participate in these workshops. The workshops are designed to provide information and understanding of the current issues that face contemporary Hawaiians. We need to keep abreast of all activities that will impact on our continued struggle to protect, preserve and perpetuate our Hawaiian cultural values and properties. We aze hopeful that these workshops will inspire you expand the discussion of the issues to include you own circle of family, friends and associates. We need everyone to get involved. Aloha! Charles Rose President Reference Booklet Table of Contents TAB 1: Federal Recognition Legislation The Basics of Federal Recognition Frequently Asked Questions Legislation Timeline & Current Status Section-by-Section Bill Summary-S. 344 o Full Text - S. 344 as Amended (May 14, 2003) Section-by-Section Bill Summary - H.R. 665 o Full Text - H.R. 665 as Introduced (February 11, 2003) Written Testimony of State of Hawaii O~cials o Governor Linda Lingle o Micah Kane, Hawaiian Homes Commission Chairman o Haunani Apoliona, Office of Hawaiian Affairs Chairwoman TAB 2: Arakaki v. Lingle Lawsuit The Basics of the Lawsuit o What Is It? o Plaintiffs & Defendents o Arguments and What the Plaintiffs Want o The Legal Process & Timeline Full Text -Plaintiffs Complaint Filed March 2002 TAB 3: Appendices Senate Joint Resolution -Apology Resolution o Timeline & Journey through the Congress o Voting Record List by Senator o Voting Record List by State Members Organizations of the Public Policy Project Partners o SCHHA o Hui Kako'o o Civic Clubs Section One Federal Recognition Legislation Getting to Know the Issues: The Basics of Federal Recognition What is federal recognition? In its simplest terms, federal recognition means the United States acknowledges a people as a political body-a nation. In some ways, Native Hawaiians are already federally recognized because Congress has acknowledged a political relationship and created a number of special programs to address housing, health care, education and many other Native Hawaiian concerns. Generally, a political body is known by its head-the government that represents its constituents. The United States enters into agovernment-to-government relationship with governments it recognizes. A federally recognized Native government is not subordinate to the state government, but instead is on par with state and federal authority in terms of most domestic issues. Native peoples have dual-citizenship, as citizens of their own Native nations, and as United States citizens. They are also residents of the state where they reside. What will federal recognition give our people? There is much to be gained with federal recognition. First and most obviously, is a measure of protection against losing current assets. But more importantly, federal recognition of a Native Hawaiian govemment\ provides Native Hawaiians an uncontested seat at the table through a government that is directly responsible to Native Hawaiians exclusively. By electing government officials and establishing administrative offices, Native Hawaiians can begin to address Hawaiian concerns in a purely Hawaiian way. One of the greatest powers of a federally recognized government is the ability to make and enforce laws, and have those laws reviewed through Native Hawaiian judicial systems. Important customary law can be codified and enforced. For most domestic issues, the State and Federal courts will also be able to uphold Native Hawaiian law and court decrees. For example, families who hanai a child can formalize that relationship as it really exists in Hawaiian custom, instead of using a close approximation available in state or federal law. With federal recognition, Native Hawaiians can incorporate cultural values into a system of governance in meaningful and relevant ways. Current (without Recognition) With Federal Recognition Federal Federal Government Government Native Government R\ y State State Government GovernmeN Trusts Pro ~ OHA DHHL Trusts P aft OHA DHHL SCHHA/HUI Public Policy Project GNMA 2003 What Powers does a federally recognized Native Government Nave? The current federal policy on self-determination and self-governance recognizes all pre-existing powers of a Native government, except where specifically withdrawn by Congress. Examples of how Congress has withdrawn specific powers are: The Indian Civil Rights Act: In this act, Congress requires Native governments to provide constituents with basic rights similar to the BiII of Rights. Native governments are also limited in the length of incarceration Native courts can order an offender to serve for each offense. The Major Crimes Act: Through this act, the Congress withdrew tribal jurisdiction over criminal matters that are considered "major crimes" like murder, rape and kidnapping and required that these crimes be prosecuted in federal courts. Congress and the US Supreme Court have affirmed native governmental authority in a broad range of issues, especially those considered "internal, domestic affairs." Examples of native government powers are: Congress and the US Supreme Court have affirmed native governmental authority in a broad range of issues, especially those considered "internal, domestic affairs." Examples of native government powers are: Defining Membership: Native governments define their own criteria for citizenship (membership). Some have opted for a minimum blood quantum requirement; others require any lineal descent. In one case, a woman was denied membership in her father's tribe because the tribe's laws required a matrilineal connection fo it in order to be a member. The woman sued the tribe, and the US Supreme Court affirmed the tribe's right to define its own membership based on its own criteria. Create and Enforce Laws within its Jurisdiction: Native governments enforce codified and customary laws within their territorial bounds, among their members, and over specific subjects like child custody and protection. State and federal courts generally honor tribal court orders. Through tribal court systems, Native governments decide disputes among members, effect culturally appropriate adoptions, address juvenile concerns, and safeguard the well being of tribal children in need. Tax, License 8 Regulate Activities on Their Lands: Native governments can tax, license and regulate all activities that occur within their territorial bounds, including businesses and development, in accordance with their own laws and standards. Provide Governmental Services to Members: Through direct funding from the federal government, Native governments provide basic trust-responsibility services like welfare assistance, child protection, housing assistance, health care services, environmental protection, wildlife management, higher education and the administration of justice. Many Native governments also operate tribal businesses that afford them an opportunity to generate revenues to meet other community needs. Through their governments, Native peoples across the United States meet their most basic needs, incorporate, preserve and protect their cultures and languages, and remedy many of the adverse conditions with their own solutions. Through their governments, Native peoples across the United States meet their most basic needs, incorporate, preserve and protect their cultures and languages, and remedy many of the adverse conditions with their own solutions. SCHHA/HUI Public Policy Project ~ CNHA 2003 Getting to Know the Issues: Frequently Asked Questions Will the Akaka Bill safeguard the assets and programs we have now? Yes and No. Current threats like the Arakaki II lawsuit certainly bring urgency fo the issue of federal recognition, but Native Hawaiians need federal recognition for much larger issues. Ultimately, with federal recognition, Native Hawaiians can begin to put in place better solutions for the issues that plague us. A federally recognized Native government can empower Native Hawaiians to address our own concerns in our community according to our own cultural values and practices. Many other Native peoples have demonstrated remarkable success in remedying the ills that plagued their people when they have been empowered to use self-governance as a tool. Because Native Hawaiian values and culture are different than that of the majority population, our solutions to issues will be different. Federal recognition empowers Native Hawaiians to implement fhe solutions we know makes the most sense for our people. How would the Akaka Bill preserve our assets? How would it help DHHL and OHA? Native Hawaiian assets, including ceded lands revenues, the Hawaiian Home Lands and other federally funded programs, are provided based on the United States' relationship with Native Hawaiians as a political body, not as a racial class. The government-to-government relationship leaves no room to question whether past legislation is based on race or a political relationship. It also clarifies benefits allocated to citizens of the Native nation are the clear product of relations between two recognizable nations, not on racial preferences. The government-to-government status minimizes threats to DHHL, OHA and other federally funded programs by reaffirming and advancing Congress' intent to treat Native Hawaiians as a political body, not a racial class. Will the Akaka Bill prevent us from making our own decisions as a people in any way? The Akaka Bill actually empowers Native Hawaiians to make our own decisions as a people. With the formation of a Native Hawaiian government, we will have a vehicle for making our own decisions. Decisions about our assets, our priorities and our customs would move from being made by state agencies, non-profits and consultants to being made by a government directly accountable to its Native Hawaiian constituents. Additionally, there are several federal laws that empower Native governments to make their own decisions in specific subject areas, regardless of territorial jurisdiction, like the Indian Child Welfare Act. Would passage of the bill mean that there can be no future claims by Native Hawaiians or that reconciliation efforts will end? No. Section 8 of the bill clarifies that the bill does not settle any claims against the United States and also requires the federal and state government to negotiate with the Native Hawaiian government for the transfer of Native Hawaiian assets. The bill does not represent the end of reconciliation -instead, it marks the beginning of the process. Can the law be changed after the Bill is passed? All legislation, including this bill, can be amended or changed after it has been enacted. In fact, most legislation is revised to correct errors, include issues that may not have been addressed or clarify the original intent of the Congress. The steps for amending a bill are the same steps required to enact a new piece of legislation. Still, amendments are usualty easier to make because they can be attached to other legislation and the process of educating Congress is easier because they are already familiar with the issue. sCHH/UHUr Public Policy Project © GNHp 2003 Will passage of the Akaka Bill require me to live on a "reservation" if 1 want to be a citizen of the Native Hawaiian nation? The only way a Native Hawaiian could be required to live in a specific area is if the Native Hawaiian people, through their government, decide to include a residency clause as a requirement for citizenship. Nothing in tederal law or the Akaka Bill requires Native Hawaiians to move onto "reservations" and the bill does not create any "reservations." Will I still be eligible to receive Social Security and other benefits associated with being a United States citizen if 1 become a citizen of the federally recognized Native Hawaiian government? Yes. The Akaka Bill provides for recognition of a Native government within the context of federal policy. As discussed elsewhere, if the Akaka Bill is enacted and Native Hawaiians choose to reorganize a government, its members would retain their United States citizenship in addition to their Native Hawaiian nation citizenship. All of the rights, programs and services guaranteed or provided to US citizens would still be provided to Native Hawaiians as well. Is this bill asking for special consideration based on race? No. This bill reaffirms apre-existing federal recognition of Native Hawaiians as a political body and provides a process for recognizing a Native Hawaiian government io represent that political body once reorganized by the Native Hawaiian people. Who supports federal recognition for Native Hawaiians? First, the Native Hawaiian people support federal recognition, by a margin of 11 to 1. The Hawaii State Legislature has also unanimously passed resolutions in two consecutive years, supporting the sovereign rights of Native Hawaiians and calling for agovernment-to-government relationship between the United States and a Native Hawaiian Nation. The Governor of Hawai i has testified before Congress in support of federal recognition. Both the National Congress of American Indians and the Alaska Federation of Natives have passed resolutions of support for the recognition of Native Hawaiians and the establishment of a government-to-government relationship. Who opposes the federal recognition bill? Those that oppose the bill, mainly national anti-affirmative action groups, have been very active in getting their side of the issue across to Congress. The opposition characterizes the bill as divisive along racial lines and see this issue as race-based rather than in terms of a Native Nation achieving self governance. Some Hawaiian Independence Groups also oppose the bill because they see it as a barrier to their efforts for total independence from the United States. What about gaming? Will Native Hawaiians have it? This bill is not intended to address the gaming issue and states it is not an "authorization for the Native Hawaiian governing entity to conduct gaming activities under the authority of the Indian Gaming Regulatory Aci (IGRA)." Even if this clause were not in this bill, Native Hawaiians would not be able to conduct gaming activities under the IGRA, because it requires that a state have some form of legal gaming. Hawaii is one of two states where all forms of gambling are criminally prohibited. ScHHA/HUl Public Policy Project © CNHA 2003 Timeline 8 Current Status The Native Hawaiian Recognition Act of 2003 (S. 344 and H.R. 665) Current Status Mark-up of the Senate version of the bill was completed, with all amendments proposed by Senator Akaka passing out of the Senate Committee on Indian Affairs on May 14, 2003. The most significant amendment made l0 5.344 is the inclusion of process criteria by which a Native Hawaiian governing entity forms and requests formal recognition by the Department of Interior. The House version has not been scheduled for a hearing as of the date of this printing. Sponsors 5.344 is currently co-sponsored by Senator Akaka (D-Hawaii), Senator Inouye (D-Hawaii), Senator Stevens (R-Alaska), and Senator Reed (D-Nevada). HR665 is co-sponsored by Representative Abercrombie (D-Hawaii) and Representative Case (D -Hawaii). Activity Timeline 108'" Congress In Session January 2003 01/08!03 Hawaii Congressional Delegation meets to consider legislation. Staff reviews last 3 years of testimony on previous versions of the legislation. 02!11!03 Legislation introduced in the Senate (5344) and House (HR665). Referred to Committees of jurisdiction: Senate: Indian Affairs Committee House: House Resources 02/25/03 Senate Committee on Indian Affairs Hearing held in Washington DC -State of Hawaii officials and Congressional Representatives testify in person before the committee as follows: Congressional Representatives Stale of Hawaii Representatives Senator Daniel Akaka -Hawaii Governor Linda Lingle Rep Ed Case -Hawaii Micah Kane, HHC Chair Rep Eni Faleomavaega -Samoa Haunani Apoliona, OHA Chair Several Trustees from the Office of Hawaiian Affairs and individuals representing several Native Hawaiian organizations, American Indian and Alaska Native entities attended the hearing. The record was left for testimony to be submitted to the Committee. 2/25/03 Senator Harry Reed (D-Nevada), the Minority Whip joins as a co-sponsor 02/27/03 HR665 Referred to House Resources -Hearing date or mark-up date not yet set. 03/17!03 Senator Ted Stevens (R-Alaska) joins as a co-sponsor 05/14!03 A substitute amendment proposed by Senator Akaka was adopted by the Senate Committee on Indian Affairs. Committee staff was authorized to make technical and conforming amendments. S. 344, as amended, wi{I be available once the Committee report is completed. We anticipate the committee report being filed in the near future. Additional Information Interested individuals and organizations may locate additional information on the Library of Congress Legislative Information on the Internet website address of thomas.loc.gov. Individuals may also call [he Office of Hawaiian Affairs Washington DC Bureau Office -Attention: Martha Ross, OHA Bureau Chief at (202)-721-1138. SCNN/UHUI Publle Policy Projttt CNMA 2003 3ootlon-by-iootlon summary Tho Natly~ Navrallan RoooOnltlon A¢t of 2003 (S. 344 as Amended) s~ 7 Short Title. This section states that the Ad can be cited as the "Native Hawaiian Recognition Act of 2003" instead of by its full title. >S~t. Z Findings. This section lists a number of things that Congress finds to be true and sets the foundation for the rest of the bill by explaining the facts that make the legislation possible and necessary. For example, Congress finds that the U.S. has a special responsibility to promote the welfare of the Native Hawaiian people, and that its past actions have repeatedly reaffirmed this responsibility. f3se. S Definitions. This section defines words used in the rest of the bill. "Native Hawaiians" are defined as any lineal descendant of the people who occupied Hawai i prior to European contact. die. 4 United States Policy and Purpose. This section reaffirms the United States' policy on Native Hawaiians, states the United States' commitment to the process of reconciliation. It also states that the purpose of the bill is to provide recognition to a Native Hawaiian governing entity for the purposes of continuing a government-to-government relationship. Sa6. 5 United States Office for Native Hawaiian Relations. This section establishes an office in the Department of Interior to represent the United States in its relations with Native Hawaiians and their government to continue to coordinate the trust relationship and continue the process of reconciliation. This office serves as a single-point of contact for Native Hawaiians and their government. >S~e. 6 Native Hawaiian Interagency Coordinating Group. This section establishes an Interagency Coordinating Group. Because many different federal agencies have programs that affect Native Hawaiians, the old adage, "the left hand doesn't know what the right hand does" can apply. This group helps to coordinate the United States' efforts with respell to Native Hawaiian issues, programs and services and consults with Native Hawaiians and their government. ase. 7 Process for the recognition of the Native Hawaiian Governing Entity. This section outlines the process of forming a Native Hawaiian government and receiving federal recognition. The Office for Native Hawaiian Relations with the help of the Native Hawaiian community must prepare a roll listing all Native Hawaiians who choose to participate in recreating a Native government. People on the roll then elect an Interim Governing Council to create organic governing documents (i.e., a Constitution) and hold elections of Native government officers. Once organic governing documents are complete, the Secretary of Interior will review them to certify that basic requirements are met. After certification, the U.S. can recognize the new Native Hawaiian governing entity. mac. 8 Reaffirmation of Delegation of Federal Authority; Negotiations. This section first reaffirms the delegation of federal authority to the State of Hawa~ i in the Admissions Ad to address the conditions of Native Hawaiians. This section also authorizes the federal government to negotiate with the State of Hawai i and the Native Hawaiian government for the transfer of lands, resources and assets dedicated to Native Hawaiian use, and Garifies that This bill doesn't settle claims against the United States. Ewe. 9 Applicability of Certain Federal Laws. This section makes clear that the Bill does not authorize gaming under the Indian Gaming Regulatory Aci, or authorize Native Hawaiian access to programs and services provided by the Bureau of Indian Affairs. 10 Ethics. Certain Taws prevent federal employees from participating in federal matters that affect their own financial interest. This section says that fhese laws do not apply in the case of Native Hawaiian employees oT the Office for Native Hawaiian Relations who might benefit Trom programs or policies designed to aid Native Hawaiians. See. 11 Severability. This section says that it any part of the bill is rendered invalid (either through a court order or amendment), Congress intends for the rest of the bill to continue in full force and effect. tiwC. 12 Authorization of Appropriations. This section authorizes the appropriation of funds to accomplish the activities in the bill. SCHNA/NUI Pobifc Policy Project GNHA 3003 O:\END\END03.329 S.L.C. AMENDMENT NO. Calendar No. Purpose: To provide a substitute amendment. IN THE SENATE OF TILE iJNITED STATES--108th Cong., 1st Secs. 5.344 Expressing 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, and for other purposes. Referred to the Committee on and ordered to be printed Ordered to lie on the table and to be printed AMENDMENT IN TFIE NATURE OF A SUBSTITUTE intended to be proposed by Mr. AKAKA Viz: . l Strike all after the enacting clause and insert the fol- 2 lowing: 3 SECTION 1. SHORT TITLE. 4 This Aet may be cited as the "Native Hawaiian Rec- 5 ognition Act of 2003". 6 SEC. 2. FINDINGS. 7 Congress finds that- May 12, 2D03 (t t:15 a.m.) , O:\END\END03.329 S.L.C_ 2 1 (1) the Constitution vests Congress with the au- 2 thorny to address the conditions of the indigenous, 3 native people of the United States; 4 (2) Native Hawaiians, the native people of the 5 Hawaiian archipelago that is now part of the United 6 States, are indigenous, native people of the United 7 States; 8 (3) the United States has a special political and 9 legal responsibility to promote the welfare of the na- 10 tive people of the United States, including Native 11 Hawaiians; 12 (4) under the treaty making power of the 13 United States, Congress exercised its constitutional 14 authority to confirm treaties between the United 15 States and the Kingdom of Hawaii, and from 1826 16 until 1893, the United States- 17 (A) recognized the independence of the 18 Kingdom of Hawaii; 19 (B)• accorded full diplomatic recognition to 20 the Kingdom of Hawaii; and 21 (C) entered into treaties and conventions 22 with the Hawaiian monarchs to govern com- ,23 meree and navigation in 1826, 1842, 1849, 24 1875, and 1887; May 12, 2003 (11:75 a.m.) O:\ENt3\END03.329 S.L.C. 3 1 (5) pursuant to the Hawaiian Homes Commis- 2 Sion Act, 1920 (42 Stat. 108, chapter 42), the 3 United States set aside 203,500 acres of land in the 4 Federal territory that Iater became the State of Ha- s waif to address the conditions of Native Hawaiians; 6 (6) by setting aside 203,500 acres of land for 7 Native Hawaiian homesteads and farms, the Act as- 8 sists the Native Hawaiian community in maintaining 9 distinct native settlements throughout the State of 10 Hawaii; 11 (7) appro~mately 6,800 Native Hawaiian les- 12 sees and their family members reside on Hawaiian 13 Home Lands and approximately 18,000 Native Ha- 14 waiians who are eligible to reside on the Home 15 Lands are on a waiting list to receive assignments 16 of land; 17 (8}(A) in 1959, as part of the compact admit- I S ting Hawaii into the Union, Congress established a 29 public trust (commonly known as the "ceded lands 20 trust"), for 5 purposes, 1 of which is the betterment 21 of the conditions of Native Hawaiians; 22 (B) the trust consists of lands, including (sub- 23 merged lands), natural resources, and the revenues 24 derived from the lands; and May t2, 2003 (11:15 a.m.) O:\END\END03.329 S.L.C. 4 1 (C) the assets of this public trust have never 2 been completely inventoried or segregated; 3 (9) throughout the years, Native Hawaiians 4 have repeatedly sought access to the ceded lands in 5 order to establish and maintain native settlements 6 and distinct native communities throughout the 7 State; 8 (10) the Hawaiian Home Lands and other 9 ceded lands provide an important foundation for the 10 ability of the Native Hawaiian community to main- 11 tain the practice of Native Hawaiian c«lture, lan- 12 guage, and traditions, and for the survival and eco- 13 nomic self-sufficiency of the Native Hawaiian people; 14 (11) Native Hawaiians have maintained other 15 distinctly native areas in Hawaii; l6 (12) on November 23, 1993, Public Law 103- 17 150 (107 Stat. 1510) (commonly known as the 18 "Apology Resolution") was enacted into law, extend- 19 ing an apology on behalf of the United States to the 20 Native people of Hawaii for the United States role 21 in the overthrow of the Kingdom of Hawaii; 22 (13) the Apology Resolution acknowledges that 23 the overthrow of the Kingdom of Hawaii occurred 24 with the active participation of agents and citizens 25 of the United States and further acknowledges that May 12, 2003 (11:15 a.mJ O:\END\END03.329 S.L_C. 5 1 the Native Hawaiian people never directly relin- 2 quished their claims to their inherent sovereignty as 3 a people over their national lands to the United 4 States, either through their monarchy or through a 5 plebiscite or referendum; 6 (14) the Apology. Resolution expresses the com- 7 mitment of Congress and the President- 8 (A) to acknowledge the ramifications of the 9 overthrow of the Kingdom of Hawaii; 10 (B) to support reconciliation efforts be- l l tween the United States and Native Hawaiians; 12 and 13 (C) to have Congress and the President, 14 through the President's designated officials, 15 consult with Native Hawaiians on the reconcili- 16 ation process as called for under the Apology 17 Resolution; 18 (15) despite the overthrow of the Hawaiian 19 Government, Native Hawaiians have continued to 20 maintain their separate identity as a distinct native 21 community through the formation of cultural, social, 22 and political institutions, and to give expression to 23 their rights as native people to self-determination, 24 self-governance, and economic self-sufficiency; AM1ay 12, 2003 (11:15 am_) O:\END\END03.329 S.L.C. 6 1 (16) Native Hawaiians also give expression to 2 their rights as native people to self-determination, 3 self-governance, and economic self-suf6ciency- 4 (A) through the provision of governmental 5 services to Native Hawaiians, including the pm- 6 vision of- 7 (i} health care services; 8 (ii) educational programs; 9 (iii) employment and training pro- 10 grams; 11 (iv) economic development assistance l2 programs; 13 (v) children's services; 14 (vi) conservation programs; 15 (vii) fish and wildlife protection; 16 (viii) agricultural programs; 17 (ix) native language immersion pro- 18 grams; 19 (x) native language immersion schools 20 from idndergarten through high school; 21 college and master's degree pro- 22 grams in native language immersion in- 23 struction; and 24 (xii) traditional justice programs; and May 12, 2003 (11:15 a.m.) O:\END\END03.329 S.L_C. 7 1 (B) by continuing their efforts to enhance 2 Native Hawaiian self-determination and local 3 control; 4 (17) Native Hawaiians are actively engaged in 5 Native Hawaiian cultural practices, traditional agri- 6 cultural methods, fishing and subsistence practices, 7 maintenance of cultural use areas and sacred sites, 8 protection of burial sites, and the exercise of their 9 traditional rights to gather medicinal plants and 10 herbs, and food sources; 11 (18) the Native Hawaiian people wish to pre- 12 serve, develop, and transmit to future Native Hawai- 13 ian generations their lands and Native Hawaiian po- 14 litical and cultural identity in accordance with their 15 traditions, beliefs, customs and practices, language, 16 and social and political institutions, to control and 17 manage their own lands, including ceded lands, and 18 to achieve greater self-determination over their own 19 affairs; 20 (19) this Act provides for a process within the 21 framework of Federal law for the Native Hawaiian 22 people to exercise their inherent rights as a distinct 23 aboriginal, indigenous, native community to reorga- 24 nize the Native Hawaiian .governing entity for the May 12, 2003 (t 1:15 a.m.) O:\END\END03.329 S.L.C. 8 1 purpose of giving expression to their rights as native 2 people to self-determination and self-governance; 3 (20) Congress- 4 (A) has declared that the United States 5 has a special responsibility for the welfare of 6 the native peoples of the United States, includ- 7 ing Native Hawaiians; 8 (B) has identified Native Hawaiians as a 9 distinct indigenous group within the scope of its 10 Indian affairs power, and has enacted dozens of 11 statutes on their behalf pursuant to its recog- 12 nized trust responsibility; and 13 (C) has delegated broad authority to ad- 14 minister a portion of the Federal trust responsi- 15 bility to the State of Hawaii; 16 (21) the United States has recognized and re- 17 affirmed the special political and legal relationship 18 with the Native Hawaiian people through the enact- 19 ment of the Act entitled "An Aet to provide for the 20 admission of the State of Hawaii into the Union", 21 approved March 18, 1959 (Public Law 86-3; 73 22 Stat. 4), by- 23 (A) ceding to the State of Hawaii title to 24 the public lands formerly held by the United 25 States, and mandating that those lands be held May 12, 2003 (11:15 a.mJ O:\~iVD\I•;ND03.329 S.L.C. 9 I in public trust for 5 purposes, 1 of which is for 2 the betterment of the conditions of Native IIa- 3 waiians; and 4 (B} transferring the United States respon- 5 sibility for the administration of the Hawaiian 6 Home Lands to the State of Hawaii, but retain- 7 ing the authority to enforce the trust, including 8 the exclusive right of the United States to con- 9 sent to any actions affecting the ]ands that 10 comprise the corpus of the trust and any 11 amendments to the Hawaiian Homes Commis- 12 Sion Act, 1920 (42 Stat. I08, chapter 42) that 13 are enacted by the legislature of the State of 14 Hawaii affecting the beneficiaries under that 15 Act; 16 (22) the United States continually has recog- 17 nized and reaffirmed that- 18 (A) Native Hawaiians have a cultural, his- 19 torie, and land-based link to the aboriginal, na- 20 tive people who exercised sovereignty over the 2] Hawaiian Islands; 22 (B) Native Hawaiians have never relin- 23 quished their claims to sovereignty or their sov- 24 ereign lands; May 12, 2003 (11:15 a.m.) O:\END\END03.329 S.L.C. 10 I (C) the United States extends services to 2 Native Hawaiians because of their unique sta- 3 tus as the aboriginal, native people of a once 4 sovereign nation with whom the United States 5 has a political and legal relationship; and 6 (D} the special trust relationship of Amer- ? lean Indians, Alaska Natives, and Native Ha- 8 waiians to the United States arises out of their 9 status as aboriginal, indigenous, native people 10 of the United States; and I1 (23) the State of Hawaii supports the recogni- 12 tion of the Native Hawaiian governing entity by the 13 United States as evidenced by 2 unanimous resolu- 14 tions enacted by the Hawaii State Legislature in the ~ 1 15 200' and 20()~ sessions of the Legislature and by 16 the testimony of the Governor of the State of Hawaii 17 before the Committee on Indian Affairs of the Sen- 18 ate on February 25, 2003. 19 SEC. 3. DEFINITIONS: 20 In this Act: 21 (I) ABORIGINAL, INDIGENOUS, NATIVE PEO- 22 PLE.-The term "aboriginal, indigenous, native peo- 23 ple" means people whom Congress has recognized as , 24 the original inhabitants of the lands and who exer- May 12, 2003 (11:15 a.m.) O:\END\END03.329 S.L.C. 11 1 cised sovereignty prior to Western contact in the 2 areas that later became part of the United States. 3 (2) ADULT MEMBER.-The term "adult mem- o ber" means a Native Hawaiian who has attained the 5 age of 18 at the time the preparation of the roll au- 6 thorized under section 7(b)(1)(A) is initiated. 7 (3) APOLOGY RESOLUTION.-The term "Apol- 8 ogy Resolution" means Public Law 103-150 (107 9 Stat. 1510), a Joint Resolution extending an apol- 10 ogy to Native Hawaiians on behalf of the United 11 States for the participation of agents of the United 12 States in the January 17, 1893, overthrow of the 13 Kingdom of Hawaii. 14 (4) COUNCIL.-The term "council" means the 15 Native Hawaiian Interim Governing Council estab- ]6 lished under section 7(b)(2). 17 (5) INDIGENOUS, NATIVE PEOPLE.-The term 18 "indigenous, native people" means the lineal de- 19 scendants of the aboriginal, indigenous, native peo- 20 ple of the United States. 21 (s) INTERAGENCY COORDINATING GROUP.-The 22 term "Interagency Coordinating Group" means the 23 Native Hawavan Interagency Coordinating Group 24 established under section 6. 25 (7) NATIVE xewAIIAN.- May 12, 2003 (11:15 am.) O:\END\END03.329 S.L.C. 12 1 (A) Irr GENERAL.-For the purpose of es- 2 tablishing the roll authorized under section 3 7(b}(1) and before the recognition by the 4 United States of the Native Hawaiian gov- 5 erring entity, the term "Native Hawaiian" 6 means the indigenous, native people of Hawaii 7 who are the direct lineal descendants of the ab- 8 original, indigenous, native people who- - 9 (i) resided on or before January 1, 10 1893, in the islands that now comprise the 11 State of Hawaii; and 12 (ii) occupied and exercised sovereignty 13 in the Hawaiian archipelago, including the 14 area that now constitutes the State of Ha- l 5 waif. 16 (B) 1NCLUSION.-The term "Native Ha- 17 waiian" includes each Native Hawaiian who 18 was eligible during 1921 for the programs au- 19 thorized by the Hawaiian Homes Commission 20 Act (42 Stat. 108, chapter 42) and their lineal 21 descendants. 22 (8} NATIVE HAWAIIAN GovEx,NIIVG ENTITY.- 23 The term "Native Hawaiian governing entity" 24 means the governing entity organized by the Native 25 Hawaiian people. May 12, 2003 (11:15 a.m.) O:\I~T1D\EN003.329 S.L.C. 13 1 (9) OFFIOE.-The term "Office" means the 2 United States Office for Native Hawaiian Relations 3 established under section 5(a). 4 (10) SECRETARY.-The term "Secretary" 5 means the Secretary of the Interior. 6 SEC. 4. UNITED STATES POLICY AND PURPOSE. 7 (a) POLICY.-The United States reaffirms that- 8 (1) Native Hawaiians are a unique and distinct, 9 indigenous, native people, with whom the United 10 States has a special political and legal relationship; 11 (2) the United States has a special political and 12 legal responsibility to promote the welfare of Native 13 Hawaiians; 14 (3) Congress possesses the authority under the IS Constitution to enact legislation to address the con- 16 ditions of Native Hawaiians and has exercised this 17 authority through the enactment of- 18 (A) the Hawaiian Homes Commission Act, 19 1920 (42 Stat. 108, chapter 42); 20 (B) the Act entitled "An Act to provide for 2] the admission of the State of Hawaii into the 22 Union", approved March 18, 1959 (Public Law 23 86-3; 73 Stat. 4); and 24 (C) more than 150 other Federal laws ad- 25 dressing the conditions of Native Hawaiians; _ O:\END\END03.329 S.L.C. 14 1 (4) Native Hawaiians have- 2 (A) an inherent right to autonomy in their 3 internal affairs; 4 (B) an inherent right of self-determination 5 and se}f-governance; 6 (C) the right to reorganize the Native Ha- l waiian governing entity; and 8 (D) the right to become economically self- 9 sufficient; and 10 (5) the United States shall continue to engage 11 in a process of reconciliation and political relations 12 with the Native Hawaiian people. 13 (b) PCTRPOSE.-The purpose of this Act is to provide ]4 a process for the recognition by the United States of the 1 S Native Hawaiian governing entity for purposes of con- 16 tinning agovernment-to-government relationship. 1 ~ SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RE- 18 CATIONS. 19 (a) EsTABI,ISF~~NT.-There is established within 20 the Office of the Secretary the United States Office for 21 Native Hawaiian Relations. 22 (b) DUTIES.-The Office shall- 23 (1) effectuate and coordinate the special polit- 24 ieal and legal responsibility between the Native Ha- ZS waiian people and the United States, and on the rec- May 12 2003 (11:15 a.m.) O:\END\END03.329 S.L.C. 15 1 ognition of the Native Hawaiian governing entity by 2 the United States, between the Native Hawaiian 3 governing entity and the United States through the 4 Secretary, and with all other Federal agencies; 5 (2) continue the process of reconciliation with 6 the Native Hawaiian people, and on the recognition 7 of the Native Hawaiian governing entity by the 8 United States, continue the process of reconciliation 9 with the Native Hawaiian governing entity; 10 (3) fully integrate the principle and practice of 11 meaningful, reg7~lar, and appropriate consultation 12 with-the Native Hawaiian governing entity by pro- 13 viding timely notice to, and consulting with, the Na- 14 tive Hawaiian people and the Native Hawaiian gov- 15 erring entity before taking any actions that may 16 have the potential to significantly affect Native Ha- 17 waiian resources, rights, or lands; 18 (4) consult with the Interagency Coordinating 19 Group, other Federal agencies, and with relevant 20 agencies of the State of Hawaii on policies, prac- 21 tiees, and proposed actions affecting Native Hawai- 22 ian resources, rights, or lands; and 23 (5) prepare and submit- to,the Committee on 24 Indian affairs and the Committee on Energy and 25 Natural Resources of the Senate and the Committee May 12, 2003 (1 t 75 a.m.) O:\END\END03.329 S.L.C. 16 1 on Resources of the House of Representatives, an 2 annual report detailing the activities of the Inter- 3 agency Coordinating Group that are undertaken 4 with respect to the continuing process of reeoneili- 5 ation and to effect meaningful consultation with the 6 Native Hawaiian governing entity and providing ree- 7 ommendations for any necessary changes to Federal 8 law or regulations promulgated under the authority 9 of Federal law. 10 SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING 11 GROUP. 12 (a) ESTABLISHbIENT.-In recognition that Federal 13 programs authorized to address the conditions of Native 14 Hawaiians are largely administered by Federal agencies 15 other than the Department of the Interior, there is estab- 16 fished an interagency coordinating group to be known as 17 the "Native Hawaiian Interagency Coordinating Group". 18 (b) COMPOSITION.-The Interagency Coordinating 19 Group shall. be composed of officials, to be designated by 20 the President, from- 21 (I) each Federal agency that administers Na- 22 five Hawaiian programs, establishes or implements 23 policies that affect Native Hawaiians, or whose ae- 24 tions may significantly or uniquely impact Native 25 Hawaiian resources, rights, or lands; and May 72, 2003 (11:15 a.m.) O:\END\END03.329 S.L.C. I7 1 (2) the Office. 2 (C) LEAD AGENCY.- 3 (1) Ix GENI',RAL,-The Department of the Inte- 4 rior shall serve as the lead agency of the Interagency 5 Coordinating Group. 6 (2) 1VIEETINGS.-The Secretary shaD convene 7 meetings of the Interagency Coordinating Group. 8 (d) DUTIES.-The Interagency Coordinating Group 9 shall- 10 (1) coordinate Federal programs and policies I 1 that affect Native Hawaiians or actions by any agen- 12 cy or agencies of the Federal Government that may 13 significantly or uniquely impact on Native Hawaiian 14 resources, rights, or lands; 15 (2) ensure that each Federal agency develops a 16 policy on consultation with the Native Hawaiian peo- 17 ple, and on recognition of the Native Hawaiian gov- 18 erring entity by the United States, consultation with 19 the Native Hawaiian governing entity; and 20 (3) ensure the participation of each Federal 21 agency in the development of the report to Congress 22 authorized in section 5(b)(5). May 72, 2003 (11:75 a.m.) O:\END\END03.329 S.L.C. 18 I SEC. 7. PROCESS FOR THE RECOGNITION OF THE NATIVE 2 HAWAIIAN GOVERNING ENTITY. 3 (a) RECOGNITION OF TIIE NATIVE HAWAIIAN GOV- 4 ERNING ENTITY.-The right of the Native Hawaiian peo- 5 ple to organize for their common welfare and to adopt ap- 6 propriate organic governing documents is recognized by 7 the United States. S (b) PROCESS FOR RECOGNITION.- 9 (I) ROLL.- lO (A) PREPARATION OF ROLL= 11 (i) IN GENERAL.-The Office, in con- 12 saltation with the adult members of the 13 Native Hawaiian community who elect to 14 participate in the reorganization of the Na- 15 tive Hawaiian governing entity, shall pre- 16 pare and maintain a roll for the purpose of 17 the reorganization of the Native Hawaiian 18 governing entity. 19 (ii) CONTENTS.-The roll shall in- 20 elude the names of the adult members of 21 the Native Hawaiian community who elect 22 to participate in the reorganization of the 23 Native Hawaiian governing entity. 24 (B) CERTIFICATION OF ROLL.- 25 (i) IN GENERAL.-The Office, in con- 26 saltation with the adult members of the May 12, 2003 (11:75 a.m.) O:\END\END03.329 S.L.C. 19 1 Native Hawaiian community, shall certify 2 to the Secretary that the individuals listed 3 on the roll meet the definition of section 4 3(7). 5 (ii} Ii,EVIEw; DETERMINATION.-The 6 Secretary shall- ? (I) review the certification of the 8 roll; and 9 (H) determine whether the roll is 10 consistent with applicable Federal law. 11 (C) PUBLICATION.-On malting adeter- 12 urination that the roll is consistent with applica- 13 ble Federal law under subparagraph (B)(ii), the 14 Secretary shall publish a final roll. IS (D) APPEAL.-The Secretary may estab- 16 lish a mechanism for an appeal of a determina- 17 tion made under subparagraph (B)(ii) if the de- 18 termination excludes from the roll the name of 19 a person who meets the definition of Native 20 Hawaiian, as defined in section 3(7). 21 (E) PUBLICATION; UPDATE.-The Sec- 22 retary shall- 23 (i) publish the final roll, regardless of 24 whether appeals are pending, and May 12, 20IXi (11:15 a.m.) O:\END\END03.329 S.L.C. 20 1 (ii) update the final roll and the publi- 2 cation of the final roll on the final disposi- 3 tion of any appeal. 4 (F) FAII,URE TO ACT.-If the- Secretary 5 fails to make the determination authorized 6 under subparagraph (B)(ii), not later than 90 7 days after the date that the roll is submitted to 8 the Secretary by the Office- 9 (i) the determination shall be deemed 10 to have been made; and 11 (ii) the Office shall publish the final 12 roll. 13 (G) EFFECT of rusLICATION.-The publi- 14 cation of the final roll shall serve as the basis 15 for the eligibility of adult members of the Na- 16 tive Hawaiian community whose names are list- 17 ed on the roll to participate in all referenda and 18 elections associated with the reorganization of 19 the Native Hawaiian governing entity. 2O (2) ORGANIZATION OF THE NATIVE HAWAIIAN 21 INTERIM GOVERNING COUNCIL.- 22 (A) ORGANIZATION. The adult members 23 of the Native Hawaiian community listed on the 24 final roll published under this subsection may- May 12, 20D3 (11:15 a.m.) O:\END\END03.329 S.L.C. 21 1 (i) develop criteria for candidates to 2 be elected to serve on the Native Hawaiian 3 Interim Governing Council; 4 (ii) determine the structure of the 5 Council; and 6 (iii) elect members from individuals 7 listed on the final roll published under this 8 subsection to the Council. 9 (B) ELECTION.-On the request of the 10 adult members of the Native Hawaiian commu- I 1 pity listed on the final roll published under this 12 subsection, the Office may assist individuals 13 listed on the roll in holding an election by secret 14 ballot (including, at the option of the Office, ab- I S sentee and mail balloting) to elect the member- 16 ship of the Council. 17 (C) POWERS.- 18 (i) Irr eErlExal..-The Council may- 19 (I) represent individuals on the 20 final roll published under this sub- 21 section in the implementation of this 22 Act; and 23 ~ (II) shall have no powers other 24 than powers given to the Council 25 under this Act. May t2, 2W3 (11:15 a.m.) O:\END\END03.329 S.L.C. 22 1 (ii) FUNDING.-The Council may 2 enter into a contract with, or obtain a 3 grant from, any Federal or State agency to 4 carry out clause (iii). 5 (iii) AC'1`IVITIES.- 6 (I) IN GENERAL.-The Council 7 may conduct a referendum among the 8 adult members of the Native Hawai- 9 ian community listed on the final roll 10 published under this subsection for 11 the purpose of determining- 12 (aa) the proposed elements 13 of the organic governing docu- 14 ments of a Native Hawaiian gov- 15 erring entity; 16 (bb) the proposed criteria 17 for citizenship of the Native Ha- 18 waiian governing entity; 19 (ce) the proposed powers 20 and authorities to be exercised by 21 the Native Hawavan governing 22 entity, as well as the proposed 23 privileges and immunities of the 24 Native Hawaiian governing enti- 25 ty; May 12, 2003 (11:15 am.) O:\ENll\END03.329 S.L.C. 23 I (dd) the proposed civil rights 2 and protection of the rights of 3 the citizens of the Native Hawai- 4 Ian governing entity and all per- 5 sons subject to the authority of 6 the Native Hawaiian governing 7 entity; and 8 (ee) other issues determined 9 appropriate by the Council. lO (H) DEVELOPMENT OF ORGANIC 11 GOVERNING DOCUMENTS.-Based on 12 the referendum, the Council may de- 13 velop proposed organic governing doc- 14 uments for the Native Hawaiian gov- 15 erning entity. l fi (III) DISTRIBUTION.-The Coun- 17 cil may distribute to all adult mem- 18 bers of the Native Hawaiian eommu- 19 nity listed on the final roll published 20 under this subsection- - 21 (aa) a copy of the proposed 22 organic governing documents, as 23 drafted by the Council; and May t2, 2003 (11:15 am.) O:\END\END03.329 S.L.C. 24 1 (bb) a brief impartial de- l scription of the proposed organic 3 governing documents., 4 (IV) ELECTIONS.- $ (aa) IN GENERAL.-The 6 Council may hold elections for 7 the purpose of ratifying the pro- 8 posed organic governing docu- 9 menu, and on ratification of the 10 organic governing documents, 11 hold elections of the officers of 12 the Native Hawaiian governing 13 entity. 14 (bb) ASSISTANCE.-On the 15 request of the Council, the Office 16 may assist the Council in con- 17 ducting the elections. 18 (D) TERbIINATION.-The Council shall 19 cease to exist, and shall have no power or au- 20 thority under this Act, after the duly elected of- 21 ficers of the Native Hawaiian governing entity 22 take office. 23 (3) SUBMITTAL OF ORGANIC GOVERNING DOCU- 24 MENTS.-Following the organization of the Native 25 Hawaiian governing entity, the adoption of organic May 12, 2003 (11:15 a.mJ O:\END\END03.329 S.L.C. 25 1 governing documents, and the election of officers of 2 the Native Hawaiian governing entity, the duly eleet- 3 ed officers of the Native Hawaiian governing entity 4 shall submit the organic governing documents of the 5 Native Hawaiian governing entity to the Secretary. 6 (4) CER.1`IF'ICATIONB.- 7 (A) Itv GEr)Ex~u,.-Not later than 90 days 8 after the date that the duly elected officers of 9 the Native Hawaiian governing entity submit 10 the organic governing documents to the Sec- I1 retary, the Secretary shall certify that the or- 12 game governing documents- 13 (i) establish the criteria for citizenship 14 in the Native Hawaiian governing entity; 15 (ii) were adopted by a majority vote of 16 adult members of the Native Hawaiian 17 community whose names are listed on the 18 final roll published by the Secretary; 19 (iii) provide for the exercise of govern- 20 mental authorities by the Native Hawaiian 21 governing entity; 22 (iv) provide authority for the Native { 23 Hawaiian governing entity to negotiate 24 with Federal, State, and local govern- 25 ment, and other entities; May 12, 2003 (11:15 a_m.) O:\END\END03.329 S.L.C. 26 1 (v) prevent the sale, disposition, ]ease, 2 or encumbrance of lands, interests in 3 lands, or other assets of the Native Hawai- • 4 ian governing entity without the consent of 5 ,the Native Hawaiian governing entity; 6 (vi) provide for the protection of the 7 civil rights of the citizens of the Native 8 Hawaiian governing entity and all persons 9 subject to the authority of the Native Ha- 10 waiian governing entity, and ensure that 11 the Native Hawaiian governing entity exer- 12 cises its authority consistent with section 13 202 of the Act of April 11, 1968 (25 14 U.S.C. 1302); and 15 (vii) are consistent with applicable 16 Federal law and the special political and l7 legal relationship between the United 18 States and the indigenous native people of 19 the United States_ 2O (B) RESUBMISSION IN CASE OF NON- 21 COMPLIANCE WITH FEDERAL LAw.- 22 (i) RESUBMISSION BY TIIE SEC- 23 RETAR.Y.-If the Secretary determines that 24 the organic governing documents, or any 25 part of the documents, are- not consistent May 12, 2003 (11:15 a.m.) O:\END\END03.329 S.L.C. 27 1 with applicable Federal law, the Secretary 2 shall resubmit the organic governing docu- 3 ments to the duly elected officers of the 4 Native Hawaiian governing entity along 5 with a justification for each of the Sec- 6 retary's findings as to why the provisions 7 are not consistent with the law. 8 (11) 1~MENDMENT AND RESUBMISSION 9 BY THE NATIVE HAWAIIAN GOVERNING EN- 10 TITY.-If the organic governing documents I 1 are resubmitted to the duly elected officers 12 of the Native Hawaiian governing entity by 13 the Secretary under clause (i), the duly 14 elected officers of the Native Hawaiian I S governing entity shall- 16 (I) amend the organic governing ]7 documents to ensure that the docu- 18 ments comply with applicable Federal 19 law; and 20 (II) resubmit the amended or- 21 ganic governing documents to the Sec- 22 retary for certification in accordance 23 with this paragraph. 24 (C) CERTIFICATIONS DEEMED MADE.- 25 The certifications under subparagraph (B) shall May 72, 2003 (77:15 a.m.) O:\END\END03.329 S.L.C. 28 1 be deemed to have been made if the Secretary 2 has not acted within 90 days after the date that 3 the duly elected officers of the Native Hawaiian 4 governing entity have submitted the organic 5 governing documents of the Native Hawaiian 6 governing entity to the Secretary. 7 (5) FEDE~AT, x,ECOGraTION.-Notwithstanding 8 any other provision of law, on the election of the of- 9 ficers of the Native Hawaiian governing entity and 10 the certifications by the Secretary required under 11 paragraph (1), the United States extends Federal 12 recognition to the Native Hawaiian governing entity ] 3 as the representative governing body of the Native 14 Hawaiian people. I $ SEC. 8. R.F.AFFIRMATION OF DELEGA17ON OF FEDERAL AU- I E) THORITY; NEGOTiATION5. 17 (a) R,EeFFIRMATION.-The delegation by the United 18 States of authority to the State of Hawaii to address the 19 conditions of the indigenous, native people of Hawaii con- 20 tained in the Act entitled "An Act to provide for the ad- 21 mission of the State of Hawaii into the Union" approved 22 March 18, 1959 (Public Law 86-3; 73 Stat. 5) is re- 23 affirmed. 24 (b) NEGOTTATIONS.- May 12, 2003 (11:15 a.m.) O:\END\END03.329 S.L.C. 29 1 (I) IN GENERA7~.-On the Federal recognition 2 of the Native Hawaiian governing entity by the 3 United States, the United States and the State of 4 Hawaii may enter into negotiations with the Native 5 Hawaiian governing entity designed to lead to an 6 agreement addressing such matters, including the 7 transfer and exercise of goverrunental authorities 8 over lands, natural resources, and other assets. 9 (2) CLAIMS.-Nothing in this Act serves as a 10 settlement of any claim against the United States. 1 1 SEC. 9. APPLICABII,ITY OF CERTAIN FEDERAL LAWS. 12 (a) INDL4N GAMING REGULATORY ACT.-Nothing in 13 this Act authorizes the Native Hawaiian governing entity 14 to conduct gaming activities under. the Indian Gaming I S Regulatory Act (25 U.S.C. 2701 et seq.). 16 (b) BUREAU OF INnIAly AI•'Fnlrts.-Nothing con- l7 tamed in this Act provides an authorization for eligibility 18 to participate in any programs and services provided by 19 the Bureau of Indian Affairs for any persons not otherwise 20 eligible for the programs or services. 21 SEC. 10. ETHICS. 22 The provisions of section 208(a) of title 18, United 23 States Code, prohibiting involvement by a Federal govern- , 24 ment officer or employee in particular matters if the offi- 25 cer or employee, or spouse or minor child of the officer May 12, 2003 (11:15 am.) O:\END\END03.329 S.L.C. 30 1 or employee, has a financial interest shall not apply to Na- t tive Hawaiians employed by the Office if the financial in- 3 terest that would be affected by the particular matter in- 4 volved results solely from the interest of the officer or em- 5 ployee, or the spouse or minor child, that results from sta- b tus as a Native Hawaiian. ~ SEC. 11. SEVERABII.ITY. 8 If any section or provision of this Act is held invalid, 9 it is the intent of Congress that the remaining sections l0 or provisions shall continue in full force and effect. I 1 SEC. 12. AUTHORIZATION OF APPROPRIATIONS. l2 There are authorized to be appropriated such sums 13 as are necessary to carry out this Act. May 12, 2003 (11:15 a.m.) Section-by-Section Summary The Native Hawaiian Recognition Act of 2003 (H.R. 665) Sec. 1 Findings. This section lists out a number of things that Congress finds to be true and sets the foundation for the rest of the bill by explaining the facts that make the legislation possible and necessary. Sec. 2 Definitions. This section defines words used in the rest of the bill. Native Hawaiians are defined as any lineal descendant of the people who occupied Hawaii prior to European contact. Sec. 3 United States Policy and Purpose. This section reaffirms the United States' policy on Native Hawaiians, states the United States' commitment to the process of reconciliation and defines the purpose of the bill as being providing recognition to a Native Hawaiian governing entity for the purposes of continuing agovernment-to-government relationship. Sec. 4 United States Office for Native Hawaiian Relations. This section establishes an office in the Department of Interior to represent the United States in its relations with Native Hawaiians and their government to continue to coordinate the trust relationship and continue the process of reconciliation. This office serves as a single-point of contact for Native Hawaiians and their government to access and deal with the federal government. Sec. 5 Native Hawaiian Interagency Coordinating Group. This section establishes an Interagency Coordinating Group. Because the federal government is huge, and often embodies the adage, "the left hand doesn't know what the right hand does," this group helps to coordinate the United States' efforts with respect fo Native Hawaiian issues, programs and services and consults with the Native Hawaiians and their government. Sec. 6 Process for Recognition of the Native Hawaiian Governing Entity. This section outlines the process the Native Hawaiian government must go through io receive federal recognition. This section does not mandate that Native Hawaiians adhere fo any particular process when forming their government, only that upon completion of the organic governing documents, they be submitted to the Secretary of Interior to certify that baseline requirements have been met prior to extending recognition. Sec. 7 Authorization of Appropriations. This section authorizes the appropriation of funds to accomplish the activities in the bill. Sec. 8 Reaffirmation of Delegation of Federal Authority; Negotiations. This section first reaffirms the delegation of federal authority to the State of Hawaii in the Admissions Act to address the conditions of Native Hawaiians. This section also authorizes the federal govemment to negotiate with the State of Hawaii and the Native Hawaiian government for the transfer of lands, resources and assets dedicated to Native Hawaiian use, and clarifies that this bill doesn't settle claims against the United States. Sec. 9 Applicability of Certain Federal Laws. This section makes clear that the Bill does not authorize gaming under the Indian Gaming Regulatory Act, or auttwrize Native Hawaiian access to programs and services provided by the Bureau of Indian Affairs. Sec. 10 Severability. If any part of this bill is rendered invalid (either through a court order or amendment), Congress intends for the rest of the bill to continue in full force and effect. SCHHNHUI Public Policy Project ® CNHA 2003 I }n8T» CONGRESS H. R. 665 1ST SESSION 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«~aiian goven~ing entity, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEARUARY 77, 2003 141r. Af3ERCR~oMBIE (for himself and Mr. CASE) introduced the t'ol}owing bill; which was referred to the Committee on Resources A FILL 'Co 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, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the Untited States of America in Congress assembled, 3 SECTION 1. FINDINGS. 4 Congress makes the following findings: S (1) The Constitution vests Congress with the 6 authority to address the conditions of the indige- ~ nous, native people of the United States. 2 1 (2) Native Hawaiians, the native people of the 2 Hawaiian archipelago which is now part of the 3 United States, are indigenous, native people of the 4 United States. 5 (3) The United States has a special trust rela- 6 tionship to promote the welfare of the native people 7 of the United States, including Native Hawaiians. 8 (4) Under the treaty making power of the 9 United States, Congress exercised its constitutional 10 authority to confirm a treaty between the United 11 States and the government that represented the Ha- 12 waiian people, and from 1826 until 1893, the United 13 States recognized the independence of the Kingdom 14 of Hawaii, extended full diplomatic recognition to 15 the Hawaiian Government, and entered into treaties ]6 and conventions with the Hawaiian monarchs to gov- 17 ern commerce and navigation in 1826, 1842, 1849, 18 1875, and 1887. 19 (5) Pursuant to the provisions of the Hawaiian 20 Homes Commission Act, 1920 (42 Stat. 108, chap- 21 ter 42), the United States set aside 203,500 acres 22 of land in the Federal territory that later became 23 the State of Hawaii to address the conditions of Na- 24 tive Hawaiians. •}~R 665 1H 3 1 (6) By setting aside 203,500 acres of land for 2 Native Hawaiian homesteads and farms, the Act as- 3 sists the Native IIa~waiian community in maintaining 4 distinct native settlements throughout the State of 5 Hawaii. 6 (7) Approximately 6,800 Native Hawaiian les- 7 sees and their family members reside on Hawaiian 8 Home Lands and approximately 18,000 Native Ha- g waiians who are eligible to reside on the Home ]0 Lands are nn a waiting list to receive assignments 11 of land. l2 (8) In 1959, as part of the compact admitting 13 Hawaii into the United States, Congress established 14 the Ceded Lands Tr~zst for 5 purposes, 1 of which IS is the betterment of the conditions of Native Hawai- 16 fans. Sueh trust consists of approximately 1,800,000 l7 acres of land, submerged lands, and the revenues de- 18 rived from such lands, the assets of which have 19 never been completely inventoried or segregated. 20 (9) Throughout the years, Native Hawaiians 21 have repeatedly sought access to the Ceded Lands 22 Trust and its resources and revenues in order to es- 23 tablish and maintain native settlements and distinct 24 native communities throughout the State. •HR 665 1H 4 1 (10) The Ha~'aila~n Home Lands and the Ceded 2 Lands provide an important foundation for the abil- 3 ity of the Native Hawaiian community to maintain 4 the practice of Native Hawaiian culture, language, 5 and traditions, and for the sur~rival of the Native 6 Hawaiian people. 7 (lI) Native Hawaiians haue maintained other 8 distinctly native areas in Hawaii. 9 (12) On November 23, 1993, Public La~~ I03- 10 150 (107 Stat. 1510) (commonly known as the Apol- 11 ogy Resolution) was enacted into law, extending an l2 apology on behalf of the United States to the Native 13 people of Hawaii for the United States role in the 14 overthrow of the Kingdom of Hawaii. l5 (13) The Apology Resolution acknowledges that 16 the overthrow of the Kingdom of Hawaii occurred 17 with the active participation of agents and citizens 18 of the United States and further acknowledges that 19 the Native Hawaiian people never directly relin- 20 quished their claims to their inherent sovereignty as 21 a people over their national lands to the United 22 States, either through their monarchy or through a 23 plebiscite or referendum. 24 (14) The Apology Resolution expresses the com- 25 mitment of Congress and the President to acknowl- •HR 665 IH 5 l edge the ramifications of the overthrow of the King- 2 dom of Hawaii and to support reconciliation efforts 3 between the United States and Native Hawaiians; 4 and to have Congress and the President, through the 5 President's designated officials, consult with Native 6 Hawaiians on the reconciliation process as called for 7 under the typology Resolution. 8 (15) Despite the overthrow of the Hawaiian 9 Government, Native Hawaiians have continued to 10 maintain their separate identity as a distinct native 11 community through the formation of cultural, social, 12 and political institutions, and to give expression to 13 their rights as native people to self-determination l4 and self-governance as evidenced through their par- IS ticipation in the Office of Hawaiian Affairs. }6 (16) Native Hawaiians also give expression to 17 their rights as native people to self-determination 18 and self-governance through the provision of govern- 19 mental services to Native Hawaiians, including the 20 provision of health care services, educational pro- 21 grams, employment and training programs, ehil- 22 dren's services, conservation programs, fish and 23 wildlife protection, agricultural programs, native lan- 24 guage immersion programs and native language im- 25 mersion schools from kindergarten through high •HR 665 7H 6 1 school, as well as college and ma'ster's degree pro- 2 grams in native language immersion instruction, and 3 traditional justice programs, and by continuing their 4 efforts to enhance Native Hawaiian self-determina- 5 tion and local control. 6 (1!) Native Hawaiians are actively engaged in 7 Native Hawaiian cultural practices, traditional agri- 8 cultural methods, fishing and subsistence practices, 9 maintenance of cultural use areas and sacred sites, 10 protection of burial sites, and the exercise of their I i traditional rights to gather medicinal plants and 12 herbs, and food sources. ]3 (18) The Native Hawaiian people wish to pre- l4 serve, develop, and transmit to future Native IIawai- 15 ian generations their ancestral lands and Native Ha- 16 waiian political and cultural identity in accordance 17 with their traditions, beliefs, customs and practices, 18 language, and social and political institutions, and to 19 achieve greater self-determination over their own af- 20 fairs. 21 (19) This Act provides for a process within the 22 framework of Federal law for the Native Hawaiian 23 people to exercise their inherent rights as a distinct 24 aboriginal, indigenous, native community to reorga- 25 nine a Native Hawaiian governing entity for the pur- •HR 665 IH 7 I pose of giving expression to their rights as native 2 people to self-determination and self-governance. 3 (20) The United States has declared that- 4 (A) the United States has a special respon- 5 sibility for the welfare of the native peoples of 6 the United States, including Native Hawaiians; 7 (B) Congress has identified Native Hawai- 8 fans as a distinct indigenous group within the 9 scope of its Indian affairs power, and has en- 10 acted dozens of statutes on their behalf pursu- 11 ant to its recognized trust responsibility; and 12 (C) Congress has also delegated broad au- 13 thority to administer a portion of the Federal 14 trust responsibility to the State of Hawaii. IS (21) The United States has recognized and re- 16 affirmed the special trust relationship with the Na- ll tive Hawaiian people through the enactment of the 18 Act entitled "An Act to provide for the admission of 19 the State of Hawaii into the Union", approved 20 March 18, 1959 (Public Law 86-3; 73 Stat. 4) by- 21 (A) ceding to the State of Hawaii title to 22 the public lands formerly held by the United 23 States, and mandating that those lands be held 24 in public trust for 5 purposes, one of which is •HR 665 Irl S 1 for the betterment of the conditions of Native 2 Hawaiians; and 3 (B) transferring the United States respon- 4 sibility for the administration of the Hawaiian 5 Home Lands to the State of Hawaii, but retain- 6 ing the authority to enforce the trust, including 7 the exclusive right of the United States to eon- 8 sent to any actions affecting the lands which 9 comprise the corpus of the trust and any 10 amendrnents to the Hawaiian IIomes Commis- 11 sion pct, 1920 (42 Stat. 108, chapter ~2) that, l2 are enacted by the legislature of the State of 13 Hawaii affecting the beneficiaries under the 14 l~ct. t5 (22) The United States continually has recog- 16 nized and reaffirmed that- }7 (A) Native Hawaiians have a cultural, his- 18 toric, and land-based link to the aboriginal, na- 19 tive people who exercised sovereignty over the 20 Hawaiian Islands; 21 (B) Native Hawaiians have never relin- 22 quished their claims to sovereignty or their sov- 23 ereign lands; 24 (C) the United States extends services to 25 Native Hawaiians because of their unique sta- •HR 665 IH 9 1 tus as the aboriginal, native people of a once 2 sovereign nation w5th whom the United States 3 has a political and legal relationship; and 4 (D) the special trust relationship of Amer- y ican Indians, Alaska Natives, and Native Ha- 6 waiians to the United States arises out of their 7 status as aboriginal, indgenous, native people 8 of the United States. 9 SEC. 2. DEFINITIONS. 10 In this Act: 11 (1) ABORIGINAL, INDIGENOUS, NATIVE PEO- 12 PLF.-The term "aboriginal, indigenous, native peo- 13 ple" means those people whom Congress has recog- 14 nized as the original inhabitants of the lands and 15 who exercised sovereignty prior to European contact 16 in the areas that later became part of the United 17 States. 18 (2) APOLOGY RESOLUTION.-The term "Apol- 19 ogy Resolution" means Public Law 103-150 (107 20 Stat. 1510), a joint resolution extending an apology 21 to Native Hawaiians on behalf of the United States 22 for the participation of agents of the United States 23 in the January 17, 1893, overthrow of the Kingdom 24 of Hawaii. •HR 665 IH 10 l (3) CEnEn Lt~lvns.-The term "ceded lands" 2 means those lands which were ceded to the United 3 States by the Republic of IIawaii under the Joint 4 Kc olution to provide for annexing the Hawaiian Is- 5 lands to the United States of July 7, 1898 (30 Stat. 6 750), and which were later transferred to the State 7 of Hawaii in the Act entitled "An Act to provide for 8 the admission of the State of Hawaii into the 9 Union" approved March 18, 1959 (Public Law 86- ]0 3; 73 Stat. 4). I1 (4) INDI(iENOIIS, NATIVE P790P'LN.-The tern 12 "indigenous, native people" means the lineal de- 13 scendants of the aboriginal, indigenous, native peo- l4 plc of the United States. IS (5) IN1'ERAGEN(,"Y GOORDINAI'ING GROUP.-The 16 term "Interagency Coordinating Group" means the 17 Native Iawaiian Interagency Coordinating Group 18 established under section 5. 19 (6) NaTrvE xnwni~N.- 20 (A) Prior to the recognition by the United 21 States of the Native Hawaiian governing entity, 22 the term "Native Hawaiian" means the indige- 23 noes, native people of Hawaii who are the di- 24 rect lineal descendants of the aboriginal, indige- 25 nous, native people who resided in the islands •}IR 665 IH 11 1 that now comprise the State of Hawaii on or 2 before January 1, 1893, and who occupied and 3 exercised sovereignty in the Hawaiian archi- 4 pelago, including the area that now constitutes 5 the State of Hawaii, and includes al] Native 6 Hawaiians who were eligible in 1921 for the 7 programs authorized by the Hawaiian Homes 8 Commission Act (42 Stat. 108, chapter 42) and 9 their lineal descendants. 10 (B) Following the recognition by the ] 1 United States of the Native Hawaiian gov- 72 erning entity, the term "Native Hflwailan" shall 13 have the meaning given to such term in the or- 14 ganic governing documents of the Native Ha- 15 waiian governing entity. lf) (7) NAT7VF. AAWA7IAN GOVERNING ENTITY.- 17 The term "Native Hawaiian governing entity" 18 means the governing entity organized by the Native 19 Hawaiian people. 20 (8) SECRETARY.-The term "Secretary" means 21 the Secretary of the Interior. 22 SEC. 3. UNITED STATES POLICY AND PURPOSE. 23 (a) POLICY.-The United States reaffirms that- .HR 665 rH 12 1 (1) Native Hawaiians are a unique and distinct, 2 indigenous, native people, with whom the United 3 States has a political and legal relationship; 4 (2) the United States has a special trust rela- y tionship to promote the welfare of Native Hawaiians; 6 (3) Congress possesses the authority under the 7 Constitution to enact legislation to address the con- 8 ditions of Native Hawaiians and has exercised this 9 authority through the enactment of- 10 (A) the Hawaiian Homes Commission Act, 1 ] 1920 (42 Stat. 108, chapter 42); 12 (B) the Act entitled "An Act to provide for 13 the admission of the State of Hawaii into the 14 Union", approved March 18, 1959 (Public Law 15 86-3; 73 Stat. 4); and 16 (C) more than 150 other B'ederal laws ad- 17 dressing the conditions of Native Hawaiians; 18 (4) Native Hawaiians have- 19 (A) an inherent right to autonomy in their 20 internal affairs; 21 (B) an inherent right of self-determination 22 and self-governance; and 23 (C) the right to reorganize a Native Ha- 24 wa.iian governing entity; and •HR 665 IH Ia 1 (5) the United States shall continue to engage 2 in a process of reconciliation and political relations 3 with the Native Hawaiian people. 4 (b) PURPOSE.-It is the intent of Congress that the 5 purpose of this Act is to provide a process for the recogni- 6 tion by the United States of a Native Hawaiian governing 7 entity for purposes of continuing agovernment-to-govern- 8 ment relationship. 9 SEC. 9. ESTABLISHMENT OF THE UNITED STATES OFFICE LO FOR NATIVE HAWAIIAN RELATIONS. I 1 (a) Itv OH NF.RAL.-There is established within the 12 Office of the Secretary the United States Office for Native l3 Hawaiian Relations. 14 (b) DUTIES of ~rllE OP'A`ICE.-'i`he United States Of- 15 fice for Native Hawaiian FLelations shall- l6 (1) effectuate and coordinate the t11isC relation- 17 ship between the Native Hawaiian people and the 18 United States, and upon the recognition of the Na- 19 tive Hawaiian governing entity by the United States, 20 between the Native Hawaiian governing entity and 21 the United States through the Secretary, and with 22 all other Federal agencies; 23 (2) continue the process of reconciliation with 24 the Native Hawaiian people, and upon the recogni- 25 tion of the Native Hawaiian governing entity by the •HR 665 IH 14 1 United States, continue the process of reconciliation 2 with the Native Hawaiian governing entity; 3 (3) fully integrate the principle and practice of 4 meaningful, regular, and appropriate consultation 5 with the Native Hawaiian governing entity by pro- 6 viding timely notice to, and consulting with the Na- 7 tive Hawaiian people and the Native Hawaiian gov- 8 erning entity prior to taking any actions that may 9 have the potential to significantly affect Native Ha- 10 waiian resources, rights, or lands; 11 (4) consult with the Interagency Coordinating 12 Group, other Federal agencies, and with relevant 13 agencies of the State of Hawaii on policies, prac- 14 tices, and proposed actions affecting Native Hawai- 15 ian resources, rights, or ]ands; and 16 (5) prepare and submit to the Committee on 17 Indian Affairs and the Committee on Energy and 18 Natural Resources of the Senate, and the Committee 19 on Resources of the House of Representatives an an- 20 nual report detailing the activities of the Interagency 21 Coordinating Group that are undertaken with re- 22 spect to the continuing process of reconciliation and 23 to effect meaningful consultation with the Native 24 Hawaiian governing entity and providing rec- 25 ommendations for any necessary changes to existing •HR 665 IH 15 1 Federal statutes or regulations promulgated under 2 the authority of Federal ]aw. 3 SEC. 5. NATIVE HAWAIIAN INTERAGENCY COORDINATING 4 cROUr. 5 (a) ESTABLISHMENT. In recognition of the fact that 6 Federal programs authorized to address the conditions of 7 Native Hawaiians are largely administered by Federal 8 agencies other than the Department of the Interior, there 9 is established an interagency coordinating group to be 10 known as the "Native Hawaiian Interagency Coordinating 11 Group". 12 (b) COMPOSITION.-The Interagency Coordinating 13 Group shall be composed of officials, to be designated by ]4 the President, from IS (I) each Federal agency that administers Na- 16 tive Hawaiian programs, establishes or implements 17 policies that affect Native Hawaiians, or whose ac- 18 tions may significantly or uniquely impact on Native 19 Hawaiian resources, rights, or lands; and 20 (2) the United States Office for Native Hawai- 21 ian Relations established under section 4. 22 (c) LEAD AGENCY.-The Department of the Interior 23 shall serve as the lead agency of the Interagency Coordi- 24 nating Group, and meetings of the Interagency Coordi- 25 nating Group shall be convened by the lead agency. •HR 665 rH 16 l (d) DDTIES.-The responsibilities of the Interagency 2 Coordinating Group shall be- 3 (1) the coordination of Federa} programs and 4 policies that affect Native IIawaiia,ns or actions by 5 any agency or agencies of the Federal Governrnent 6 which may significantly or uniquely impact on Na- 7 five Hawaiian resources, rights, or lands; 8 (2} to assure that each Federal agency develops 9 a policy on consultation with the Native Hawaiian 10 people, and upon recognition of the Native Hawaiian 11 governing entity by the United States, consultation 12 with the Native Hawaiian governing entity; and 13 (3) to assure the participation of each Federal 14 agency in the development of the report to Congress 15 authorized in section 4(b)(5). Ifi SEC. 6. PROCESS FOR THE RECOGNITION OF THE NATIVE 17 HAWAIIAN GOVERNING ENTITY. IS (a} RECOGNITION OF THE NATrvE HAWAIIAN GOV- l9 ERNING ENTITY.-The right of the Native Hawaiian peo- 20 plc to organize for their common welfare and to adopt ap- 21 propriate organic governing documents is hereby recog- 22 nized by the United States. 23 (b} PROCESS FOR RECOGNITION.- 24 (I} SUBMITTAL OF ORGANIC GOVERNING DOCU- 25 mENTS.-Following the organization of the Native •HR 665 IH 17 1 Hawaiian governing entity, the adoption of organic 2 governing documents, and the election of officers of 3 the Native Hawaiian governing entity, the duly eleet- 4 ed officers of the Native Hawaiian governing entity 5 shall submit the organic governing documents of the 6 Native Hawaiian governing entity to the Secretary. 7 (2~ C)FR'I7FICATIONS.- 8 Irr G>;N>JRa>J.-Within 90 days of the 9 date that the duly elected officers of the Native 10 Hawaiian governing entity submit the organic 11 governing documents to the Secretary, the Sec- 12 retary shall certify that the organic governing 13 documents- 14 (i) establish the criteria for citizenship t5 in the Native Hawaiian governing entity; 16 (ii) were adopted by a majority vote of 17 the citizens of the Native Hawaiian gov- 18 erning entity; 19 (iii) provide for the exercise of govern- 20 mental authorities by the Native Hawaiian 21 governing entity; 22 (iv) provide for the Native Hawaiian 23 governing entity to negotiate with Federal, 24 State, and local governments, and other 25 entities; •HR 665 IH 18 1 (v) prevent the sale, disposition, lease, 2 or encumbrance of lands, interests in 3 lands, or other assets of the Native IIawai- 4 ian governing entity without the consent of 5 the Native Hawaiian governing entity; 6 (vi) provide for the prrotection of the 7 civil rights of the citizens of the Native 8 Hawaiian governing entity and all persons 9 subject to the authority of the Native IIa- 10 waiian governing entity, and ensure that 11 the Native Hawaiian governing entity exer- l2 cises its authority consistent with the re- 13 quirements of section 202 of the Aet of 14 April 11, 1968 (25 U.S.C. 1302); and IS (~~ii) are consistent with applicable 16 Federal law and the special trust relation- 17 ship between the United States and the in- 18 digenous native people of the United 19 States. 20 (B~ BY THE SECRETARY.-Within 90 days 21 of the date that the duly elected officers of the 22 Native Hawaiian governing entity submit the 23 organic governing documents to the Secretary, 24 the Secretary shall certify that the State of Ha- 25 waii supports the recognition of a Native Ha- •HR 665 1H 19 1 waiian governing entity by the United States as 2 evidenced by a resolution or act of the Hawaii 3 State legislature. 4 (C) RESUBMISSION IN CASE OF NON- S COMPLIANCE WI'PH FEDERAL LAW.- E) (l) RESUBMISSION BY THE SEC- 7 RETARY.-If the Secretary determines that 8 the organic governing docurents, or any 9 part thereof, are not consistent with appli- 10 cable Federal law, the Secretary shall re- 11 submit the organic governing documents to 12 the duly elected officers of the Native Ha- 13 waiian governing entity along with a jns- l4 tification for each of the Secretary's find- 15 ings as to why the provisions are not con- 16 sistent with such law. 17 (ii) ~LMENDMENT AND RESUBMISSION I8 BY THE NATTVE HAWAIIAN GOVERNING EN- 19 TITY.-If the organic governing documents 20 are resubmitted to the duly elected officers 21 of the Native Hawaiian governing entity by 22 the Secretary under clause (i), the duly 23 elected officers of the Native Hawaiian 24 governing entity shall- •HR 665 IH 20 1 (I) amend the organic governing 2 documents to ensure that the doeu- 3 ments comply with applicable Federal 4 law; and 5 (II) resubmit the amended or- b game governing documents to the Sec- ? retary for certification in accordance 8 with the requirements of this para- 9 graph. l0 (D) CERI7FICATIONS DEEMED M.wE.- 1 ] The certifications authorized in subparagraph 12 (B) shall be deemed to have been made if the 13 Secretary has not acted within 90 days of the 14 date that the duly elected officers of the Native I S Hawaiian governing entity have submitted the 16 organic governing documents of the Native Ha- 17 waiian governing entity to the Secretary. 18 (3) FEDERAL RECOGNITION.-Notwithstanding 19 any other provision of law, upon the election of the 20 officers of the Native Hawaiian governing entity and 21 the certifications by the Secretary required under 22 paragraph (1), the United States hereby extends 23 Federal recognition to the Native Hawaiian gov- 24 erning entity as the representative governing body of 25 the Native Hawaiian people. •tuz sss ui 21 I SEC. 7. AUTHORIZATION OF APPROPRIATIONS. 2 There is authorized to be appropriated such sums as 3 may be necessary to carry out the activities authorized in 4 this Act. S SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AU- 6 THORITY; NEGOTIATIONS. 7 (a) RN:Ar~,IRMAZ~ION.-The delegation by the United 8 States of authority to the State of Hawaii to address the 9 conditions of the indigenous, native people of Hawaii con- l0 tained in the Act entitled "[ln Act to provide for the ad- l l mission of the State of Hawaii into the Union" approved 12 March Y8, 1959 (Public Law 86-3; 73 Stat. 5) is hereby 13 reaffirmed. 14 (b) NF;GOT1ATIONS.-Upon the Federal recognition 15 of the Native Hawaiian governing entity by the United l6 States, the Ulrited States is authorized to negotiate and 17 enter into an agreement with the State of Hawaii and the 18 Native Hawaiian governing entity regarding the transfer 19 of lands, resources, and assets dedicated to Native IIawai- 20 ian use to the Native Hawaiian governing entity. Nothing 21 in this Act is intended to serve as a settlement of any 22 claims against the United States_ 23 SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. 24 (a) INDIAN GAMING REGULATORY ACT.-Nothing 25 contained in this Act shall be construed as an authoriza- 26 tion for the Native Hawaiian governing entity to conduct •HR 665 IH 22 I gaming activities under the authority of the Indian Gam- 2 ing ILegulatory Act (25 U.S.C. 2701 et seq.). 3 (b) BuxEnu of INDIAN AFFwxs.-Nothing con- 4 tained in this Act shall be construed as an authorization 5 for eligibility to participate in any programs and services 6 provided by the Bureau of Indian Affairs for any persons 7 not otherwise eligible for such programs or services. S SEC. 10. SEVERABILITY. 9 In the event that a.ny section or provision of this Act l0 is held invalid, it is the intent of Congress that the remain- I 1 ing sections or provisions of this Act shall continue in full I2 force and effect. 0 ~HR 665 }H February 25, 2003 Testimony of: Honorable Governor Linda Lingle (R-Hawaii) State of Hawaii Before the: Senate Committee on Indian Affairs Washington DC Good Morning Chairman Campbell, Vice Chairman Inouye, and members of the Senate Committee on Indian Affairs. Thank you for inviting me to appear before you. For the record, I am Linda Lingle, Governor of the great state of Hawaii, and I am honored to be here. I come before you today to express my support for passage of the Native Hawaiian Federal Recognition Bill, which is known throughout Hawaii as the Akaka Bill. My administration and both houses of the Hawaii State Legislature believe this is the right thing to do for Native Hawaiians, for the state of Hawaii, and for the United States. Native Hawaiians aze an important constituency in our state for many reasons. The Native Hawaiian culture is the foundation of the character of the state of Hawaii, and the basis for common understanding among our varied ethnic populations. Out very identity as a state is founded on Native Hawaiian values, cultural practices and knowledge. Their willingness to share that knowledge and understanding has enriched all who call Hawaii home. We have learned much from Native Hawaiians, and have much more to learn. As a Republican Governor, I azn happy to be working in close harmony with our Hawaii Democratic Congressional Delegation on this critically important issue. Senator Inouye, Senator Akaka, Representative Case and Representative Abercrombie stand united in their support, and I proudly stand with them, along with the Hawaii State Legislature. We recognize that there will be differences of opinion in our approaches to many of the challenges we face, but we also recognize the value of aloha and working in a bi-partisan manncr to resolve issues of great importance to the people of our state. The people of Hawaii have 1 voiced their support on this issue in many ways. For example, both Republicans and Democrats in Hawaii have supported federal recognition for Native Hawaiians in party platforms. We are united in asking Congress to pass the Akaka Bill into law, thereby reaffirming the political relationship between the United States and the Indigenous people of Hawaii. ?his bill is vital to the survival of the Native Hawaiian people; it is vital to the continued character of our state; and it is vital to providing parity and consistency in federal policy for all Native peoples in America. As public-policy makers, all of us in this room believe deeply in the goodness of our great country, and in the strength of its democratic ideals. . . America's Indigenous Peoples are America's First Peoples, and American Indians of the 48 states, Alaska Natives of the 49th state, and Native Hawaiians of the 50th state have demonstrated their love for this country and made contributions that all U.S. citizens can be proud of Indeed, our federal government owes our First Citizens a great debt of gratitude. We policy makers owe it to ourselves to live up to the promise and p ower of Democracy and Justice for All, and to continue our journey by recognizing the inherent rights of the Indigenous Peoples of our country. There have been many eras of federal policy towazd Native Peoples over the centuries none so promising as the current one ofself-determination and self-governance that has already been extended to American Indians and Alaska Natives. It is time to set a new course in Hawaii. Specifically, it is time to extend this federal policy of self-determination and self-governance to the Native Hawaiian people. . The people of Hawaii respectfully submit that simple justice requires-that Native Hawaiians_be _ empowered to determine their own futwe by employing their own solutions. I am confident that they will rise to the challenge. 2 1 have found an abundance of talent, energy, and a love of democracy among members of the Native Hawaiian community, including many who serve in my administration. Bob Awana is my Chief of Staff and Micah Kane heads the Department of Hawaiian Home Lands. Dr. Chiyome Fukino left a successful medical practice to serve the lazger community of Hawaii as Director of the Department of Health. Georgina Kawamura serves as ow Director of Budget and. - Finance. Rick Bissen ions the Attorney General's office as First Deputy, and Kathy Watanabe heads our Department of Human Resowces and Development. 3ames Aiona is Hawaii's Lieutenant Governor. These are just the most visible of many Native Hawaiians who serve the people of Hawaii as members of my administration. They serve with competence, passion and vitality. - Many of you have worked with our Native Hawaiian Senator Daniel Akaka for a number of yeazs. You know him by his Aloha, by his gentle spirit, and by his commitment to these United States. Like the individuals in my administration that I have named, Senator Akaka knows what it means to be Native Hawaiian, to be from Hawaii, and to be an American. Like all Native peoples azound the country, these individuals have embraced the promise of ow democracy and now use their unique knowledge of ow islands, and of its diverse people, to serve the public and in doing so they do not give up what it means to be Native Hawaiian. They do not and have not abandoned their collective rights as Native H awaiians to be self-governing and to practice and perpetuate a cultural heritage whose home is onty found in one tiny part of ow world, the Hawaiian Islands. Despite the historical events and policies that worked agaittst them, Native Hawaiians have an unbroken desire for self-governance as a means of perpetuating their way of life and their culture, for futwe generations. Passage of the Akaka bill will provide Native Hawaiians with an opportunity owed to them for many years the right to engage their best talents and best ideas as full partners of the State and Federal governments. Passage of this bill holds great promise for Native Hawaiians, and it holds great promise for our state and all its citizens. My administration believes that what is just and good for Native Hawaiians is just and good for all ow people. 3 There have been concerns shazed with me about what this bill might lead to like gambling, or creating a divide among peoples in my state.. Nothing could be further from the truth. I do not support gambling in Hawaii; Native Hawaiians have not collectively enunciated a desire for legalized gambling; and this Bill does nothing to pem»t it. The State of Hawaii controls whether or not there will be gambling in Hawaii. This is true toda y and it would be true after enactment of this bill. This bill would not divide the people of Hawaii. To the contrary, by doing what is right for Native Hawaiians, passage of the Akaka Bill would enable all the peoples of Hawaii to move forward and reach our potential together. How, I ask you, can providing justice for long-standing wrongs ever be divisive? The underlying principles of ow country tell us that justice and a recognition of rights personal and collective is the very definition of ow unity. Ow state motto Ua mau ke `ea o ka `aina i ka pono, the life of the land is perpetuated in righteousness says it well. The life of Hawaii and unity of its diverse peoples aze perpetuated by doing what is right. The Native Hawaiian Federal Recognition Bill brings parity and consistency to ow federal policies on America's Indigenous People. The Native Hawaiian people of my state deserve nothing less. This bill provides a process that has not existed before, for the Hawaiian people t o take hold of their destiny and to have a rightful place at the table in making decisions for themselves. I have every confidence that if this opportunity is grurted to them, Native Hawaiians will find within thew community an approach that works for themselves, for ow state, and for this nation. Members of the Committee, I wge you to pass the Native Hawaiian Recognition Bill out of yow committee and to wge yow colleagues in the full Senate to pass this bill without hesitation. In 4 doing so, you will recognize the contributions of Native Hawaiians and the value of their continued and enhanced vitality to my state and our nation: doing so, you also will recognize what is righteous, what is practical, and what is jttst. Mahalo and Thank You. 5 U.S. SENATE COMMITTEE ON INDIAN AFFAIRS TESTIMONY OF MICAH KANE IN SUPPORT OF SB 344 Tuesday, February 2S, 2003 Aloha mat kakou Chairman Campbell, Vice-Chairman Inouye, Senator Akaka, and honorable members of the Senate Committee on Indian Affairs. My na me is Micah Kane and I am the Director of the State of Hawaii's Department of Hawaiian Home Lands. Mahalo for this opportunity to appear before you today to testify in support of SB 344, commonly known as the Akaka bill. The Department of Hawaiian Home Lands is the agency within our state government that administers the federal trust lands created by Congress more than 80 years ago under the Hawaiian Homes Commission Act of 1920. This act set aside more than 200,000 acres of land for use by Native Hawaiians. Currently, over 20,000 Native Hawaiians live on these lands, in more than 30 different communities, on almost every island in the state. An even larger number of qualifying Native Hawaiians remain on a waiting list -hoping for their opportunity for home ownership and land stewazdship. With me today, aze Uncle Tony Sang, the Chairman of the State Council of Hawaiian Homestead Associations (SCHHA) and Ms. Robin Dawer, his Vice -Chairman. These two individuals represent and work daily on behalf of re al people, in real communities, and they do it very well. They aze just the tip of the iceberg. There aze many more Native Hawaiians who selflessly work for the betterment of our people. My remazks today will focus on just three (3) issues. First where the support for this bill is coming from. Second the economic realities of this measure. And third the practical reasoning which supports the passage of this bill. I- First, there is broad and deep support from Hawaiian and Non-Hawaiian communities alike, and Republican and Democrat party lines. Our entire congressional delegation supports this measure and Governor Lingle has made its passage a major objective of U.S. Senate Committee on Indian Aftairs Testimony of Micah Kaue Tuesday, February 25, 2003 Page 2 her administration. It also is backed by resolutions passed by the Hawaii State Legislatwe, the National American Indian Housing Council, the National Congress of American Indians, and the Alaska Federation of Natives, and it has been included in the national and Hawaii platforms for the Republican and Democratic parties. Most importantly to me, the homestead communities to which I am accountable also support this measure. in short, the Akaka bill is supported by the people most directly affected by it, and also by people with no vested or common interests other than a desire to see justice done. 2- Second, the Akaka bill would eliminate legal problems and uncertainties that have adversely affected the Hawaii economy. These troubling and unsettled issues relate to property title, ceded land claims, and rights to natural resources. Wit hoot federal recognition of Native Hawaiians, the State of Hawaii will spend thousands of unnecessary man-hours and millions of taxpayer dollars defending and clarifying Native Hawaiian rights: Enactment of the Akaka bill would bring closure and allow our state to move forward. - 3- Third, the Akaka bill simply completes a journey that Congress began many years ago. There are over 150 statutes passed by Congress which address the conditions and lives of Native Hawaiians. The goal has been to redress past wro ngs and to empower self-help. I would humbly submit that passage of this bill rightfully extends the successes of our country's era ofself-determination for its native peoples to Native Hawaiians. It would allow us to control ow destiny as a native peo pte and thus to participate more fully and more proudly as Americans. in closing, l would like to thank Senator Inouye, Senator Akaka, and the rest of Hawaii's Congressional Delegation for their long-standing commitment to the fight for self- - determination for the Hawaiian people. I would also like to acknowledge the efforts and leadership of all Hawaiian organizations, including the Office of Hawaiian Affairs, who U.S. Senatc Committcc on Indian ACtairs 'IestimonyoCMieah Kane - - T"uesday, February Z5, 2003 Page 3 continue to dedicate themselves and to persevere in their work to achieve the goal of Federal Recognition. I also want to publicly thank Governor Lingle for including so many Native Hawaiians in her administration. By doing so, she has empowered and challenged us to use our talents to improve the lives of all the people of Hawaii. We are humbled by the trust she has placed_in us, and we fully recognize the responsibility that comes with the opportunity to serve others. And finally, I thank you, the members of the Senate Committee on Indian Affairs, for your past and present efforts in cnsur ing that the profotmd American notions of justice, fairness, and equality aze not only spoken to Native Hawaiians, but are preserved and brought to life for us. Once again, tnahalo nui loa. TESTIMONY OF TRUSTEE HAUNANI APOLIONA CHAIRPERSON, BOARD OF TRUSTEES OFFICE OF HAWAIIAN AFFAIRS United States Senate, Committee on Indian Affairs Hearing on S. 344 Tuesday, February 25, 2003, 9:30 a.m. Room 485, Russell Senate Office Building Na `Oiwi `Olino E o e na'iiiwi'olino'ea Na pulapula a Haloa `ea Mai Hawaii a Niihau 'ea A punt ke ao malamalama 'ea e Ku'e au i ka hewa, ku'e! Ku au i ka pono, ku! Ku'e au i ka hewa, ku'e! Ku au i ka pono, ku! Answer, O natives, those who seek knowledge The descendants of Haloa From Hawaii island in the east to Niihau in the west And around this brilliant world I resist injustice, resist! I stand for righteousness, stand! I resist injustice, resist! I stand for righteousness; stand! INTRODUCTION E na alaka'i a me na lala o keia Komike o na Kuleana 'ilikini o ka 'Ahableto Nui o 'Amelika Hui Pi, 'ia, aloha mat kakou. He loa ke ala i hele 'ia a makou, r>a 'oiwi 'olino o Hawaii, a he ala i hehi mua 'ia a ru ali'i o makou, a la'a, 'o ka Mii'i Kalakaua, ke Kamali'iwahine Ka'iulani a me ka N6'iwahine hope o ke Aupuni Mo'i Hawaii, 'o is ko makou ali'i i aloha nut 'ia, `o Lili'uokafani. A he nut ro ho'i na Hawaii i kunou mat ai i mua o 'oukou a r>ana pono mat i ke kulana o ka 'oiwi Hawaii, kona nohona, kona olakino, ka ho`ona'auao a pela wale aku. Ua pono ka helena hou a makou net a loa`a ka pono o ka 'aina, ke kulaiwi pa'a mau o ka lahui'oiwi o Hawaii pae'aina, 'o is wale rw ka Hawaii. No laila, eta hou no ka 'oiwi Hawaii, he alo a he alo, me ka `Ahaolelo Nui. _1_. To the leaders and members of this Committee on Indian Affairs of the United States Congress, greetings. Long has been the road traveled here by Native Hawaiians who dearly embrace wisdom and justice, indeed a path tread upon by such royal nobility of the pastas King Ka~kaua, Princess Ka'iulani and our beloved last ruler of the Hawaiian Kingdom, Queen Lili'uokalani. And still countless other Native Hawaiians have humbled themselves before this body for your consideration on such critical native issues as housing, health, education and so on. Again, we come before you urging consideration in affirming the rights of Native Hawaiians as the sole indigenous people of their anaent homeland, Hawaii. We come together again face to face -Native Hawaiians and the Congress of the United States of America. The United States has a unique legal and polkical relationship with the indigenous people of Hawaii and that relationship is embodied in a hodgepodge of history, treaties, statutes, Executive Orders, and court decisions. Once again, the congressional delegation from the State of Hawai i seeks, with the assistance of many of their colleagues, to achieve a formal recognition of the special status the indigenous people of Hawai i have in the fabric of American political relationships. OHA supports, therefore, the intent and framework of S. 344 and its companion in the House of Representatives, H.R. 665. -2- HAWAIIAN SELF-DETERMINATION - A HISTORY OF DENIAL The relationship between the United States and the State of Hawaii and the Naiive Hawaiian people is a matter of written record. Congress itself provides a factual account of the illegal overthrow of 1893 and the annexation of 1898 in the Apology Bill, Pub. L. No.1 03-150, 107 Stat. 1510 (1993). The story is worth retelling, however, because it serves to underscore the legacy left by over a century of benign neglect of and sometimes open antipathy toward Hawaiian self-determination. One hundred and ten years ago, diplomatic and military representatives of the United States triggered and led the overthrow of the Kingdom of Hawai i through, in President Grover Cleveland's words, "an act of war on a friendly and confiding people". Later, without the consent of the indigenous people of Hawaii, the illegitimate "Republic of Hawaii" purported to cede both Hawaiian sovereignty and more than 1.8 million acres of Hawaiian crown and government land to the United States. This usurpation of the sovereigniy and land of a people was undertaken wittwut the consent of and without compensation to the Hawaiian people. The official marginal¢ation of the Hawaiian people at the hands of the United States continued. In 1920, the United States divided our people by blood quantum, and through legislative fiat drew artificial lines between parent and . child, grandparents and grandchildren and'ohana (extended family) in a soaety -3- and culture knowing no such distinctions. In 1959, a continuation of this unwarranted division of the Hawaiian people became one of the conditions to Hawaii's admission as the fiftieth state of the Union. The Hawaiian people have endured the painful irony that they were made part of the American political family without being permitted to exercise one of the most basic principles of American political thinking -the right of self-determination. The United States of America used its power to allow the overthrow of the legitimate govemment of Hawaii and then withheld that power and refused to rectify that wrong. While claiming a special relationship with the indigenous Hawaiian people, arbitrarily re-defined what tt means to be "Hawaiian". For too long, our ancestors and `ohana have waited for the United States and its political agent, the State of Hawaii, to make right the wrong that was committed in 1893, only to see the small steps taken for our benefit persistently attacked and maligned as being contrary to modem constitutional jurisprudence. Reconciliation has been an option thus far denied. HAWAIIAN RECOGNITION IS ABOUT FAIRNESS AND JUSTICE Following the 71ega1 overthrow of the Kingdom of Hawai i on January 17, 1893, the Provisional Government and then the Republic of Hawaii seized management of all lands formerly controlled by Queen Liliuokalani (the Crown Lands), Hawaii Constitution, Art. 95. Sec. 262 (1894), as well as the lands controlled by the govemment of the Kingdom of Hawaii (the Government Lands). _4 In 1993, the U. S. Congress acknowledged in the Apology Bill (Public Law 103- 150), that this action was illegal and that it could not have been accomplished without the assistance of U.S. agents. The Apology Bill goes on to note that the subsequent "cession" of these lands to the United States in 1898 was "without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign govemment." Whereas, without the active support and intervention by the Unted States diplomatic and military r~presentative5 the [January 1893] insurrection against the Govemment of Queen Lili'uokalaniwould have failed for lack of popular support and insufficient arms; Whereas the Republic of Hawai i also ceded 1.800.000 acres of crown. govemment and public landsof the Kingdom of.Hawai'i, without the consent of or corrtpensation to the Native Hawaiian people of Hawaii"i or their sovereign govemmenl; The Congress - (1) on the occasion of the 100th anniversary ofthe illegal overthrow of the Kingdom of Hawai i on January 17, 1893, acknowledges the historical significance of this eventwhich resulted in the suppression of the inherent sovereignty of the Native Hawaiian (Public Law 103-150, emphasis added.) The United States established the Territory of Hawai r pursuant to the Organic Act of April 30, 1900, ch. 339, 31 Stat. 141 (without any vote of the citizens of the former Kingdom of Hawai'i). The Organic Act provided that all proceeds from the Public Lands (the former Crown and Govemment Lands) were to be applied by the govemment of the Territory of Hawaii to "such uses and purposes for the _5_ benefit of the inhabitants of the Territory of Hawaii as are consistent with the joint resolution of annexation, approved July seventeenth, eighteen hundred and ninety-eight " When Congress enacted the Native Hawaiian Health Care Improvement Act Amendments of 1992, Congress found that the joint resolution of annexation (the Newlands Resolution} and the Organic Act established "a special trust relationship between the United States and the inhabitants of Hawai'i." (42 U.S.C. §1701(12).) In the 1959 Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), the United States transferred about 1.2 million acres of the Public Lands, plus another 200,000 acres of Hawaiian Home Lands, to the State of Hawaii. In 1992, Congress found that the Admission Act further "reaffirmed the trust relationship which existed between the United States and the Hawaiian people by retaining the exdusive power to enforce the [Hawaiian Home Lands) trust, induding the power to approve land exchanges, and legislative amendments affecting the rights of beneficiaries under such Act." (Native Hawaiian Health Care Improvement Act Amendments, 42 U.S.C. §1701(15).) Section 5(f) of the Admission Act explicitly provided that the lands granted to the State of Hawai i upon admission were to be held by the State as a public trust. By this provision, again using the language chosen by Congress in 1992, the United States "reaffirmed the trust relationship which existed between the United States and the Hawaiian people by retaining the legal responsibility of the State 6 . for the betterment of the conditions of Native Hawaiians under section 5(f) of the [Admission Act]." (42 U.S.C. §1701(16}.) In Section 5(f) of the 1959 Admission Act, Congress stated explicitly that the transferred lands were to be held as a "public trust" by the State and that the revenues generated by these lands and the revenues were to be used.for five. speck purposes: "for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible[,] for the making of public improvements, and for the provision of lands for public use." UnGI Hawai'i's 1978 Constitutional Convention, the State interpreted this provision as allowing it to use the revenues for any one of these purposes. The State devoted all revenues to public education, and allocated - none of these revenues specifically to benefit native Hawaiians. Because of the decades of neglect; the delegates to the 1978 Constitutional Convention proposed a series of constitutional amendments that were subsequently ratified by the voters and added to HawaPPs Constitution. These amendments affirmed that the State "held".the Ceded Lands as a Public Land Trust, with native Hawaiians as one of the two named beneficiaries and the general public as the other (Article XII, Section 4). These constitutional amendments established the Office of Hawaiian Affairs (OHA) (ArtiGe XII, -7- Section 5) and required the State to allocate a pro rata share of the revenues from the Public Lands to OHA to be used explicitly for the betterment of native Hawaiians (Article XII, Section 6). Throughout alt of these years, despite all of the reaffirmations of the "special relationship" between the United States and the indigenous people of Hawaii, despite the number of times our people have come to Congress seeking reconciliation -the historic wrongs forced on our people have been allowed to continue without redress. The right of self-determination has been extended to the indigenous people of every other state in the union save one -the Hawaiians. S. 344 and its House companion H.R. 665 are initial but significant steps on the path in the direction of reconciling historic wrongs to Hawaiians and advancing Hawaiians toward a political relationship with the United States of America. THE PROCESS OF HEALING MUST CONTINUE We are not unmindful of the efforts that have been made by the federal government and the State of Hawaii to try to alleviate the conditions faced today by the indigenous people of Hawaii. Congress has, for example, repeatedly found that the health of native peoples is tied to their relationship to land. More specifically, Congress has found that this is indeed true for Hawaiian people. -8- The Apology Bill specifically finds that: "Whereas the health and well-being of C~lative Hawaiian people is intrinsically tied to their deep feelings and attachment to the land..." (107 Stat. at 1510.) The social and economic changes in Hawai i which resulted from contact with the west had a "devastating" effect on the Native Hawaiian population and on their "health and well-being " (Apology Bill, 107 Stat. at 1512.) Foreigners brought new diseases to Hawaii, and the Native Hawaiian population plummeted, The condition of Native Hawaiians deteriorated to a point that in 1920 territorial representatives sought assistance from Congress. Noting that Hawaiian people had been "frozen out of their lands and driven into the cities "and that "Hawaiian people are dying ° the representatives recommended allotting land to the Hawaiians so that they could re-establish their traditional way of Irfe. (H.R. Rep. No. 839, 66th Cong., 2d Sess. 4 (1920).) The Secretary of the Interior echoed that recommendation, informing Congress that Native Hawaiians are "our wards . ..for whom in a sense we are trustees," that they "are falling off rapidly in numbers" and that "many of them are in poverty." Those recommendations led to the enactment of the Hawaiian Homes Commission Act which designated 200,000 acres of {ands for homesteading by "native Hawaiians," which was defined as descendants of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to-1778. Since Hawai'i's admission into the Union, Congress has assisted in addressing 9 the well-being of Native Hawaiians. Congress has established special Native Hawaiian programs in the areas of health care, as well as education, employment, and loans. (See e.g., Native Hawaiian Health Care Improvement Act, 42. U.S.C. §§11701-11714; Native Hawaiian Education Act, 20 U.S.C. §§7901-7912; Workforce Investment Act of 1998, 29 U.S.C. §2911; Native American Programs Act of 1974; and others.) These statutes are premised on Congressional findings that the conditions of Native Hawaiians in such areas as health and education continue to lag seriously behind those of non-natives, 42 U.S.C. §11701(22); 20 U.S.C. §7902(17). The U.S. Congress and President committed themselves to pursue a reconciliation between the United States and the Native Hawaiian people in the 1993 Apology Bill and the State of Hawaii has committed itself to a similar process: Further, the United States has recognized that Native Hawaiians, as aboriginal, indigenous; native peoples of Hawaii, are a unique population group in Hawai ii and in the continental United States and has so dedared in Office of Management and Budget Circular 15 in 1997 and Presidential Executive Order No. 13125, dated June 7, 1999. On July 28, 1999, the United States filed an amicus brief supporting the State of Hawaii and the Native-Hawaiian-only vote for OHA Trustees in-the pse ofRice vs. Cavetano, U.S. Supreme Court No. 99-818. In its brief, the United States, -10- through its Solicitor General, affirmed that it has a trust obligation to indigenous Hawaiians. The Solicitor General wrote, "The United States has concluded that it has a trust obligation to indigenous Hawaiians because it bears a responsibility for the destruction of their govemment and the unconsented and uncompensated taking of their lands " (See Brief of United States filed July 28, 1999 at p. 21.) The United States further explained that "Congress does not extend benefits and services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of aonce-sovereign nation as to whom the United States has a recognized trust responsibility." mod. at 27.) In 1993, Congress, led by the Hawaii congressional delegation, concluded that a century of national silence and neglect was enough. In 1993, it enacted Senate Joint Resolution 19, popularly known as the Apology Bill. In that Bill, the Congress acknowledged America's illegal role in destroying the legal govemment of the Hawaiian people and urged President Clinton to support reconciliation efforts between the United States and the Native Hawaiian people. Six years passed before the federal executive branch, at the urging of Senator Daniel Akaka, appointed representatives to initiate the reconciliation process called for in the Apology Bilt. In December of 1999, a series of community meetings on all five major islands of HawaPi were held by the Federal Reconciliation Delegation. Those meetings represented a first step in the bng-delayed journey toward reconciliation between the United States and the indigenous people of HawaPi. These meetings resulted in the publication of a joint Department of the Interior -11- and Department of Justice report entitledMauka to Makai: The River of Justice Must Flow Freely. The report recommends that the indigenous people of Hawai i be given right to the full expression of self-determination and calls for federal recognition of a native Hawaiian government. HAWAIIAN CULTURE AND PEOPLE DESERVE RECOGNITION The culture, society, governmental organization and religious traditions flourished in the archipelago known as Hawaii since the time of Christ -long before the first contact with the West in 1778. With more than 200 years of settlement by European explorers, American missionaries and businessmen, plantation workers from Asia and others from every comer of the world, Native Hawaiians, faced with cultural assimilation and cultural genocide, have tenaciously maintained a myriad of traditional practices that have their origins in pre-Western Hawaii: Religion and spirituality, celestial navigation, wood carving, exquisite feather work, language, poetry, dance; chant, surfing and other sports, lei making, healing arts, traditional martial arts, fishing; farming, weaving and more. These cultural practices are integral to the Irfestyle of the Native Hawaiian, aril are enjoyed by kama'aina (residents) and malihini (visitors, newcomers) alike. The inseparable connectedness between the Native Hawaiian and his natural environment -the land, ocean, plant and animal fife -goes far beyond the western ideologies of control, manipulation and ownership. An ancient -12- cosmogonic chant known as theKumulipo or "source from the dark" teaches us .that the ocean and land were bom first as elder siblings, followed by plant and animal life. Later, man emerges as the younger sibling, ingraining in the Hawaiian an innate kinship with his environment. 'Aina or land was not a commodity. Rather, it was regarded as the elder sibling which commanded respect and the appropriate behavior of "rralama 'aina" (to care for the land). Man cared for the land, and in tum, the land sustained the lives of man. Cukural practices of the Native Hawaiian are inextricably attached to his land base and natural resources. Traditional methods of healing, including the use of native herbs and plants (la'au lapa au), are being studied by Western medical experts as effective alternatives to chemical-based treatment modalities. Social and behavioral scientists are adopting aspects of traditional conflict resolution techniques (ho'oponopono) as a means of successful intervention therapies and prevention of family and domestic violence.. The hula, or traditional dance, perhaps the "best known" of Hawai'i's cultural and spiritual practices, also requires the gathering of symbolic flora from regions ranging from the high rain forests to the shoreline. In honor of the gods, these materials are fashioned in adornments and costuming that pay honor and respect to those gods, the ali'i or rulers and lesser chiefs, important historical events, and the myriad island districts, geophysical features and islands that make up _ Hawaii. Yet overtime, the hula was trivialized by westerners who, through -13- ignorance and lack of sensitivity, reduced this time-honored tradition to pretty girls, cellophane skirts and coconut bras. Today, the hula in its traditional form is widely popular in Hawaii, and has brought about a heightened consciousness of the need for protedion and preservation of our culture, land and natural resources as welt as renewed pride in our Hawaiian identity. Despite the largely Westernized way of I'rfe most Native Hawaiians live today, their culture, language, religion and traditions live on and, in many respects, thrive. These traditional pradices are well-recognized and are embodied in the laws of the State of Hawaii. Artide XII, Section 7, of the Hawaii State Constitution recognizes Native Hawaiians' right to exercise customary and traditional pradices for subsistence, culture and religious purposes. ESee also Haw.. Const., Artide X, Sedion 4 (mandating the promotion of the study of Hawaiian culture, history and language) and Artide IX, Sedion 9 (granting state poweF to preserve and develop ethnic cultural, creative and traditional arts) These- rights have received judidal affirmation, as well. (See Public Access Shoreline Hawaii vs. Hawaii County Planning Commissioq 79 Haw. 425, 903 P.2d 1246 (1995).) Our culture and language is perpetuated now by our children and grandchildren. In the fall of 2002, the Office of Hawaiian Affairs sponsored an essay contest for elementary, middle and high school students. The topic, "What it Means to be Hawaiian"; generated numerous entries and a representative sampling of their -14- essays, written in both English and in Hawaiian; are provided along with this testimony. In short, our culture, history, language, religion and traditions live on today despite over two centuries of contact wish the West and despite more than a century of domination by an alien culture. Our traditional practices, recognized by the State of Hawaii, deserve recognition and protedion from the federal government as well. As native people giving voice to our ancestors, we are descendants of traditions and values indigenous to this Hawaii. Our Native Hawaiian elders (lupuna), wayfinders and navigators, established and developed a sophisticated and efficient society in the middle of the vast Padfic Ocean. Our lifestyle and survival were guided by respect and honor for God, man and nature; stewardship of land and natural resources and careful attention to the balance of human use of a fragile ecosystem. These considerations are as important now in this 21st century as they were 1.,000 years ago. We know we don't stand alone. We stand with the two other indigenous peoples of Ameriq. Federal policy on self determination and self governance currently extends to Alaska natives and Native American Indians. Native Hawaiians, the third indigenous people in these 50 states, seek such indusion. While Queen LilPuokalani may have stood alone in the 19"century in pursuit of reconciling 15- history for her people, Native Hawaiians in the 2'F' century are joined by Native American Indians and Alaska natives who stand with us in our pursuit of federal recognition and reconciliation. For this, we Native Hawaiians are grateful. IT IS NEVER TOO SOON FOR JUSTICE AND FAIRNESS TO BE DONE There are those who contend that the legislation relating to federal recognition for Hawaiians is premature; that a Hawaiian government should be formed first. We could not disagree more. The legislation before you arms the fundamental principle which has been so long denied to Hawaiians -the right of self- determination. It is never too eaHy for justice to be done and the time is now for Hawaiians to be treated faidy. We seek the same treatment afforded to the other indigenous peoples of the United States of America -aright too long denied us. 1 appear before you as an elected Trustee of the Office of Hawaiian Affairs, as one of nine people duly selected to represent the interests of the Hawaiian people, but most importantly, 1 appear before you as a guardian of my people's right toself-determination. I am a Hawaiian. He Hawaii au. No laila, eia au ma ka galena pau o I~ia not ha'aha'a a ha'aheo, a ho`olohe mai a e nana mai i ka 'ike a me ka maopopo pono o luilana 'oiwi o ka Hawai'i i ko makou 'aina kulaiwi mai ke au kahiko loa a ka we pau 'ole. He pono keia 'olelo i mua o `oukou i 'olelo 'ia me ka ikaika a me ka mana a me ke aloha o rH kupuna i -16_ . hala, na Hawai i he lehu o keia au a me rra hanauna a puka a'e ana no. Mahalo nui, ke aloha no Therefore: as I approach the condusion of this humble and cherished testimony, I ask that you listen and look upon us with wisdom and understanding of the status of the Native Hawaiian in our ancient homeland. What is said to you is offered in truth, and is uttered with the strength and power and love of our forebears, our nearly 400,000 Native Hawaiians in Hawaii and the continental U.S. today, and generations hence. Respectfully submitted Trustee Haunani Apoliona Chairperson; Board of Trustees Office of Hawaiian Affairs -17- Section Two Arakaki v. Lingle Lawsuit Arakaki v. Lingle-The Basics what is it? The suit, formerly known as Arakaki v. Cayetano, argues that OHA and the Hawaiian Homes Commission Act are race-based and therefore illegal under the Equal Proiection Clause of the U.S. Constitution. In 2000, the Rice v. Cayetano case came to a close when the U.S. Supreme Court declared that the Siate of Hawai i violated the U.S. Constitution by limiting voting for OHA trustees to only people of Hawaiian descent. Riding on this momentum, a group of Hawai i residents have pursued similar lawsuits including this one, which may be the most threatening to date. Plaintiffs The people who are suing ("plaintiffs") are 16 residents of Hawaii: Earl Arakaki Roger Grantham Evelyn Arakaki Toby Kravet Edward Bugarin James Kuroiwa, Jr. Sandra Burgess Frances Nichols Patricia Carroll Donna ScaN Robert Chapman Jack Scaff Brian Clarke Allen Teshima Michael Garcia Thurston Twigg-Smith Defendants The people who are being sued ("defendants") include the Governor, the Hawaiian Homes Commission, OHA trustees, and numerous people in their official capacities as state officials. Arguments Plaintiffs' Main Argument: Native Hawaiians are on~l racial minorities wfth no special trust status like other Native Peoples in U.S. Defendants' Main Argument: The U.S. Govemment has clearly estab{ished on many previous occasions that Native Hawaiians are indigenous people with a special relationship to the U.S. government-Native Hawaiians are not merely a racial minority SCHHNHUI Public Policy Project ~ CNHA 2003 What do the plaintiffs want? Plaintiffs claim that OHA and Hawaiian Homes amount to race-based and discriminatory policies. As a remedy, they want the operation of OHA, the HHC and DHHL to cease and all assets (including former trust assets) to be handed over to the State for the benefit of all its residents. Specifically, Plaintiffs want the Court to: declare all laws establishing OHA, HHC, and DHHL invalid under the Constitution of the United States; order all moneys, investments, lands and property of any kind, and all earnings from them held by OHA, HHC or DHHL, be made general funds and property of the State of Hawaii; order that DHHL and OHA cease to manage administer and enforce existing programs and services, including all Homestead leases; order DHHL to negotiate with the existing Homesteaders to allow the State to withdraw the lands from Homesteaders. The withdrawal is to be conducted in a way that "is fair to the Homesteaders but does not further violate the rights of Plaintiffs." permanently prevent DHHL and OHA from making any further grants, establishing any programs, making any loans, guarantees, transfers, contracts or expenditures, or issuing any further Homestead leases permanently prevent the State from making any further transfers of public moneys, investments, lands or property of any kind to OHA or DHHL. The Process Legal processes often take a long time. This case was filed in March of 2002 and it still hasn't gone to trial in the U.S. District Court. Instead, the Court is looking at pretrial issues and arguments from both sides. Even after a decision is made by this court (expected in 2004), it will likely be appealed to the U.S. 9'" Circuit Court in California and then to the U.S. Supreme Court. U.S. DISTRICT U.S. CIRCUIT U.S. SUPREME COURT COURT COURT Judge Mollway 9'" Circuit WASHINGTON DC HAWAII CALIFORNIA Pretrial Appeal Appeal (2002 - present) Decision Decision Final (2004?) (2005?) Decision (2006?) SCHHAlHUI Public Polley Projttt ® CNHA 2003 Timeline of selected events A lawsuit as important and complicated as this is often argued back and forth before if even goes to trial with each side claiming that it should win outright. So far, the case is still in pretrial mode in the lowest level of the federal courts. At any point along this timeline, the case might be decided in the plaintiffs' or defendants' favor. DATE ACTION DESCRIPTION /DISPOSITION Mar 2002 Complaint is made Plaintiffs filed suit Mar 2002 Pretrial motion - TRO Plaintiffs asked for an immediate stop to OHA and HHCA. Court denied May 2002 Pretrial motion -Dismiss for Defendants argue plaintiffs can't bring this suft. lack of standing Court agreed in part, but allows suit to continue Pretrial motion -Judicial Defendants asked court to recognize various June 2002 Notice official statements including the Apology Bill as "facts" Tor this case. Court denied. Defendants asked court to first rule on whether Aug 2002 Pretrial motion -Bifurcate special treatment of Indian tribes applies to OHA. Coud denied saying OHA is a state agency. Sept 2002 Pretrial motion - U.S. U.S. asked court fo dismiss it from the case. removal Court agreed, U.S. no longer a defendant. Defendants present legal arguments for why the June 2003 Pretrial motion Tor summary case should be thrown out wdhout going to trial. judgment Plaintiffs argue the opposite. Court will issue a decision. Court will hear arguments and make important 2003-2004 More pretrial motions decisions and statements along the way that will affect the outcome 2004 District Court trial begins It case isn't decided before trial w Y 2004? Appeal to Circuit Court 7 LL 2005? Circuit Court Decision If Circuit Coun agrees to hear the case 2005? Appeal to U.S. Supreme Ct 2006? U.S. Supreme Ct decision If Supreme Court agrees to hear the case The Bottom Line The Arakaki v. Lingle IawsuR is challenging OHA and HHCA as unconstitutional race- based institutions and programs. If plaintiffs win both organizations may cease to exist as welt as their associated programs and leases. Existing homesteader leases could be void and the waitlist wiped out If plaintiffs win, federal programs for Native Hawaiians may be exposed to similar legal challenges. Legislation providing for the federal recognition of Native Hawaiians may have a bearing on the case and could make it moot. SCHHAMUI Public Polley Project ® CNHA 2003 H. WILLIAM BURGESS #833 2299C Round Top Drive Honolulu, Hawaii 96822 Telephone: (808) 947-3234 Fax: (808) 947-5822 PATRICK W. HANIFIN #2716-0 IM HANIFIN PARSONS, LLLC 1001 Bishop Street Pack Tower, Suite 2475 Honolulu, Hawaii 96813 Telephone: (808) 585-0335 Fax: (808) 585-0336 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII EARL F. ARAKAKI, EVELYN C. ) CIVIL NO. ARAKAKI, EDWARD U. BUGARIN, ) SANDRA PUANANI BURGESS, ) COMPLAINT FOR DECLARATORY PATRiCIA A. CARROLL, ROBERT M. ) JUDGMENT CHAPMAN, BRIAN L. CLARKE, ) MICHAEL Y. GARCIA, ROGER ) (RE: CONSTITUTIONALITY OF OFFICE GRANTHAM, TOBY M. KRAVET, ) OF HAWAIIAN AFFAIRS, HAWAIIAN JAMES I. KUROIWA, JR., FRANCES M. ) HOMES COMMISSION AND RELATED NICHOLS, DONNA MALTA SCAFF, ) LAWS) JACK H. SCAFF, ALLEN H. TESHIMA, ) THURSTON TWIGG-SMITH, ) AND FOR AN INJUNCTION; Plaintiffs, ) SUMMONS v. ) BENJAMIN J. CAYETANO in his official ) capacity as GOVERNOR OF THE STATE ) OF HAWAII, NFJ1L MIYAHIRA in his ) official capacity as DIRECTOR OF THE j DEPARTMENT OF BUDGET AND ) FINANCE, GLENN OKlMOTO in his ) official capacity as STATE ) COMPTROLLER, and DIRECTOR OF ) THE DEPARTMENT OF ACCOUNTING ) AND GENERAL SERVICES, GILBERT ) COLOMA-AGARAN in his official capacity ) as CHAIRMAN OF THE BOARD OF ) LAND AND NATURAL RESOURCES, ) JAMES J. NAKATANI, in his official ) capacity as DIRECTOR OF THE ) DEPARTMENT OF AGRICULTURE, ) SEIJI F. NAYA, in his official capacity as } DIRECTOR OF THE DEPARTMENT OF ) BUSINESS, ECONOMIC ) DEVELOPMENT AND TOURISM, BRIAN ) MINAAI in his official capacity as ) DIRECTOR OF THE DEPARTMENT OF ) TRANSPORTATION, ) State Defendants, ) HAUNANI APOLIONA, Chairman, and ) ROWENA AKANA, DONALD B. ) CATALUNA, LINDA DELA CRUZ, ) CLAYTON HEE, COLETTE Y.P. ) MACHADO, CHARLES OTA, OSWALD ) STENDER, and JOHN D. WAIHE'E, IV in ) their official capacities as trustees of the ) Office of Hawaiian Affairs, ) OHA Defendants, ) RAYNARD C. SOON, Chairman, and ) WONDA MAE AGPALSA, HENRY CHO, ) THOMAS P. CONTRADES, ROCKNE C. ) FREITAS, HERRING K. KALUA, MILTON ) PA, and JOHN A.H. TOMOSO, in their ) official capacities as members of the ) Hawaiian Homes Commission, ) HHCA/DHHL Defendants, ) THE UNITED STATES OF AMERICA, ) and JOHN DOES 1 through 10, ) Defendants. ) TABLE OF CONTENTS COMPLAINT FOR DECLARATORY JUDGMENT (RE: CONSTITUTIONALITY OF OFFICE OF HAWAIIAN AFFAIRS, HAWAIIAN HOMES COMMISSION AND RELATED LAWS) AND FOR AN INJUNCTION PAGE INTRODUCTION ..................................................1 The Office of Hawaiian Affairs ...................................................................1 The Hawaiian Homes Commission 3 Note: Equitable accommodation between the public need and the needs of existing Homesteaders 4 The Admission Act, §5(f) 5 JURISDICTION AND VENUE 6 PARTIES 7 Plaintiffs 7 State Defendants 7 OHA Defendanis ...........................................................................9 HHC/DHHL Defendants 9 Other Deferxlants 9 LEGAL HISTORY .................................................................................11 1898 -The public land trust established for inhabitants of the Hawaiian Islands .....................................................................................................11 1921-The Hawaiian Homes Commission Act ........................................13 1959 -The Admission Act .......................................................................13 i 1978 -Hawaii Constitution purportedty amended, creates OHA, further breach of public land trust and violation of U.S. Constitution 15 Note: 1978 votes not tallied legalty. 18,833 voters disenfranchised. Doubtful that majority ratified OHA Amendments ....................................15 1990 -Legislature defines "revenues" retroactively, mandates Budget & Finance and OHA to negotiate .................................................16 1994 - OHA sues for more for same period, 1980 -1991 ......................18 1999 -Some of Plaintiffs here file amicus brief in OHA v. State ...........18 February 23, 2000 -Rice v. Cayetano decided by high court .................18 March 2000 -Some of Plaintiffs here sought to intervene in OHA v. State ............................................................................................19 September 2001 -Hawaii Supreme Court dismisses OHA v. State........ 19 STATEMENT OF CLAIMS 20 Exhaustion of administrative remedies 20 Need for equitable relief 20 Harm to Plaintiffs and others similarly situated 21 Diversions of public land trust lands and revenues to DHHL harm Plaintffs as trust beneficiaries 22 Existing Homestead leases require the HHC/DHHL Defendants to continue to enforce and administer racially discriminatory provisions for over 100, more years. They inflict ongoing and continuing harm on Plaintiffs 22 DHHL has the right to withdraw the whole or any part of the lands demised by the Homestead leases as may be required for a public use and purpose. Compliance with the 14"' Amendment and the state's fiduciary duty as trustee of the public land trust are public uses and purposes 24 Appropriations for DHHL harm Plaintiffs as taxpayers 25 ii Diversions of public land trust revenues to OHA harm Plaintiffs as beneficiaries of the public land trust 27 Appropriations for OHA harm Plaintiffs as taxpayers 27 The exemption of Homestead bts from real property taxes also harms Plaintiffs as taxpayers 28 CLAIMS FOR RELIEF 29 First Claim for Relief. Equal Protection Clauses of Fourteenth and Fifth Amendments 29 Second Claim for Relief. Violation of the Civil rights Act, 421 U.S.C. §1983 ....................................................................................31 Third Claim for Relief. Breach of Public Land Trust 31 PRAYER 34 lll COMPLAINT FOR DECLARATORY JUDGMENT (RE: CONSTITUTIONALITY OF OFFICE OF HAWAIIAN AFFAIRS, HAWAIIAN HOMES COMMISSION AND RELATED LAWS) AND FOR AN INJUNCTION INTRODUCTION 1. The Office of Hawaiian Affairs This suit challenges the validity under the Constitution of the United States of: a. Article XII, ~ 4 of the Hawaii State Constitution, which, among other things, requires that the (ands granted to the State of Hawaii by the Admission Act shall be held as a public trust for native Hawaiians and the general public. (This provision is challenged only to the extent that R gives or is construed or implemented to give native Hawaiians any protection, entitlements, rights, privileges or immunities not given equally to other beneficiaries of the public land trust.). b_ Article XII, ~ 5 of the Hawaii State Constitution, which, among other things, establishes the Office of Hawaiian Affairs (saOHAo), and requires that OHA hold properly in trust for native Hawaiians and Hawaiians. c. Article XII, ~ 6 of the Hawaii State Constitution, which, among other things, requires the OHA board to manage, administer and control income and proceeds from a pro rata share of the public land trust for native Hawaiians and other properly for Hawaiians. d. Chapter 10 of the Hawaii Revised Statutes (AH.R.S.r~) entitled saOffice of Hawaiian Affairs which governs OHA and, among other provisions, defines saHawaiian~ by ancestry and sanative Hawaiians explicitly by race, i.e., Adescendants of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1 1778 10-2), requires chat OHA act for the betterment of Hawaiians and native Hawaiians ~ 10-3 through 10-6) and requires, or may require, that 20°k of revenues from the public land trust be expended for the betterment of native Hawaiians 10- 13.5). e. Chapter 13D H.R.S. entitled ABoard of Trustees, Office of Hawaiian AffairsQ which governs the OHA board. f. ~ ~ 11-1, 15 and 17 H.R.S_ io the extent that they define "Hawaiian" and govern OHA elections. g. ~ 171-18 H.R.S. which requires that the lands ceded to the United States by the Republic of Hawaii under the joint resolution of annexation in 1898 and returned to the State of Hawaii by the Admission Act in 1959 shall be held as a public trust for the support of public schools and other public educational institutions and for other purposes including Athe betterment of native Hawaiians. (This provision is challenged only to the extent that it gives or is construed or implemented to give native Hawaiians any protection, entitlements, rights, privileges or immunities not given equally to other beneficiaries of the public land trust.) h. All other provisions of the constitutional law, statutes, regulations, case law and all actions, customs and usages of the state of Hawaii which create, establish, authorize, implement, fund, give public Hands or public moneys to, or otherwise aid, assist or benefd OHA. (The foregoing constitutional provisions, statutes and other laws and actions, customs and usages are sometimes hereinafter referred to collectively as rthe OHA laws.) 2 2. The Hawaiian Homes Commission. This suit also challenges the validity under the Constitution of the United States of: a. ArtiGe XII, ~ ~ 1, 2 and 3 of the Hawaii State Constitution, which adopt the Hawaiian Homes Commission Act, 1920 (AHHCA®) enacted by Congress, accept the compact imposed by the United States as a condition of admission, prohibit the amendment or repeal of HHCA without the consent of the United States, and mandate that the Hawaii legislature fund the programs, administration and operation of the Department of Hawaiian Home lands. b. ~ 4 of the Admission Act of March 18, 1959, Pub L 86-3, 73 Stat 4 (the AAdmission Acto) which requires, as a compact with the United States, that the HHCA shall be adopted as a provision of the Constitution of the State of Hawaii and, among other things, prohibits the amendment or repeal of the HHCA without the consent of the United States; c. The Hawaiian Homes Commission Act, 1920, Act of July 9, 1921, c 42, 42 Stat 108, as amended, (HHCA) which, among other things, sets aside approximately 200,000 acres of the public lands of Hawaii for the benefd of persons defined explicitly by race, i.e., Adescendants of not less than one-half part of the blood of the races inhabHing the Hawaiian Islands previous to 1778.c~ d. Act 14 of the Special Session Laws of Hawaii 1995 which, among other things, established the Hawa`nan home lands trust fund and required that the State make twenty annual deposits of $30 million or their discounted value equivalent, 3 into the trust fund. Also HHCA §213.6 which is the codification of Section 7 of said Act 14. e. Continuation of existing Homestead leases under terms that require or permit future governmental action based on the racial ciass~cation in the HHCA or deny to Plaintiffs in the future the equal protection of the laws and the benefit of the lands covered by the leases. f. All other provisions of the constitutional law, statutes, regulations, case law and all actions, customs and usages of the State of Hawaii which create, establish, authorize, implement, fund, or otherwise carry out the HHCA or give public lands or public moneys to or otherwise aid, assist or benefd the Hawaiian Homes Commission or the department of Hawaiian home lands. (The foregoing constitutional provisions, statutes and other laws and actions, customs and usages are sometimes hereinafter referred to collectively as Athe HHCA laws®.) 3. Note: Equitable accommodation between the public need and the needs of existing Homesteaders. Plaintiffs recognize the practical reality that the HHCA laws have been in effect for 81 years; many persons of native Hawaiian ancestry have reasonably relied on them and have become Homesteaders (7,281 Homestead leases were outstanding as of 1/31/02); in reliance on the HHCA laws, many of the Homesteaders have built homes and improvements and made other commitments with respect to their Homestead lots; and invalidating the Hawaiian homes program may have serious finanaal consequences for those existing Homesteaders. Plaintiffs therefore seek an equitable decree to accommodate both the public need (to end this 4 racial discrimination by the State government) and the private needs of the existing Homesteaders (to avoid inequitable financial consequences to them merely because they acted on the basis of laws they thought were valid). Lemon v. Kurtzman 411 U.S.192 (1973). (An unconstitutional statute is not absolutely void, but is a practical reality upon which people rely. Courts recognize that reality. Pp. 197-199. Atrial court has wide latitude in shaping an equftable decree and reaching an accommodation between public and private needs. Pp. 200-201. A State and those with whom it deals are not to be subjected to harsh, retrospective relief merely because they act on the basis of presumptively valid legislation, in the absence of contrary judicial direction. Pp. 208-209.) Specifically Plaintiffs ask the Court, as part of its judgment invalidating the HHCA laws to order the State Defendants and HHC/DHHL Defendants to negotiate with the existing Homesteaders for the State's exercise of its right to withdraw the lands demised in a way that is fair to the Homesteaders but does not further violate the rights of Plaintiffs and others similarly situated. Such negotiations could result in a global settlement under which the fee simple interest is conveyed to the Homesteader in exchange for no or a reduced payment and a complete release of all claims by the Homesteader and his or her heirs and assigns against afl parties, including atl claims against the State of Hawaii and the UnRed States arising out of or related to the Homestead leases, the HHCA laws, the OHA laws and any other claims for Hawaiian entitlements. Plaintiffs seek no retroactive application of the Court's declaratory judgment or retrospective relief of any kind. 5 4. The Admission Act. ~ 5(f). This suit also challenges the validity under the Constitution of the United States of: a. ~ 5(f) of the Admission Act, which requires that the lands granted to the State of Hawaii shall be held as a public trust for one or more of five purposes, including Afor the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act®. (This provision, ~ 5(f), is challenged only to the extent that it gives or is construed or implemented to require or authorize the State of Hawaii to give native Hawa"nans any right, title or interest in the Aceded lands® or public lands of Hawaii, or the proceeds or income therefrom, not given equally to other beneficiaries of the public land trust.) b. All other provisions of the statutes, regulations, case law and all actions, customs and usages of the United States which enforce, implement or carry out ~ 5(f) of the Admission Act so as to require oa authorize the State of Hawaii to give, native Hawaiians any protection, right, title or interest in the Aceded lands® or public lands of Hawaii, or the proceeds or income therefrom, not given equally to other beneficiaries of the public land trust. JURISDICTION AND VENUE 5. Jurisdiction is invoked pursuant to 28 U.S.C. ~ ~ 1331 (federal question), 1343(3) and 1343(4) (civil rights) and 2201 and 2202 (declaratory judgment). 6. Venue is in this judicial district pursuant to 28 U.S.C. ~ 1391(b) because the acts giving rise to this action occurred in this district and the property that is the subject of this action is situated in this district. 6 PARTIES Plaintiffs 7. A1116 Plaintiffs are residents and citizens of the State of Hawaii and of the United States. 8. Included among Plaintiffs are persons of Japanese, English, Filipino, Portuguese, Hawaiian, Irish, Chinese, Scottish, Polish, Jewish, German, Spanish, Okinawan, Dutch, French and other ancestries. 9. Each and every Plaintiff has a material frnancial interest in the subject matter of this action as a taxpaying citizen of the State of Hawaii and the United States and as a beneficiary of the public land trust created in 1898 when the public lands of the government of Hawaii were ceded to the United States with the requirement that all revenues or proceeds, with certain exceptions, Ashall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposesc~. State Defendants 10. Defendant Benjamin J. Cayetano is a resident and Governor of the State of Hawaii. 11. Defendant Neal Miyahira is a resident of the State of Hawaii and the Director of the State of Hawaii Department of Budget and Finance. In that capacity, he is charged with the responsibility of allocating, remitting and/or transferring revenue to 7 the Trustees of OHA to be used by OHA as provided in Art. XII, 5 and 6 and HRS Chapter 10, including the racially discriminatory provisions of HRS § 10-2; and allocating, remitting and/or transferring revenues to the Defendant Hawaiian Homes Commissioners. 12. Defendant Glenn Okimoto is a resident of the State of Hawaii and the State Comptroller, and the Director of the Department of Accounting and General Services. In those capacities he is charged with the responsibility of allocating, remitting andlor transferring revenue to the Trustees of OHA to be used by OHA as provided in Art. XII, 5 and 6 and HRS Chapter 10, including the racially discriminatory provisions of HRS § 10.2; and albcating, remitting and/or transferring revenues to the Defendant Hawaiian Homes Commissioners. 13. Defendant Gilbert Coloma-Agaran is a resident of the State of Hawaii and the Chair of the Board of Land and Natural Resources and the Director of the State of Hawaii Department of Land and Natural Resources. In that capacity, he is charged with the responsibility of allocating, remitting and or transferring revenue to the Trustees of OHA to be used by OHA as provided in ArL XII, 5 and 6 and HRS Chapter 10, including the racially discriminatory provisions of HRS § 10-2. 14. Defendant James J. Nakatani is a resident of the State of Hawaii and the Director of the State of Hawaii Department of Agriculture. In that capacity, he is charged with the responsibility of allocating, remitting and or transferring revenue to the Trustees of OHA to be used by OHA as provided in Art. X11, 5 and 6 and HRS Chapter 10, including the racialty discriminatory provisions of HRS § 10.2. 8 15. Defendant Seiji Naya is a resident of the State of Hawaii and the Director of the State of Hawaii Department of Business, Economic Devebpment and Tourism. In that capacity, he is charged with the responsibility of allocating, remitting and or transferring revenue to the Trustees of OHA to be used by OHA as provided in Art. XII, 5 and 6 and HRS Chapter 10, including the racially discriminatory provisions of HRS § 10.2. 16. Defendant Brian Minaai is a resident of the State of Hawaii and the Director of the State of Hawaii Department of Transportation. In that capacity, he is charged with the responsibility of alocating, remitting and or transferring revenue to the Trustees of OHA to be used by OHA as provided in Art. XII, 5 and 6 and HRS Chapter 10, including the racially discriminatory provisions of HRS § 10-2 OHA Defendants 17. Defendants Huanani Apoliona, Chairperson and Rowena Akana, Donald B. Cataluna, Linda Dela Cruz, Clayton Hee, Collette Y.P. Machado, Charles Ota, Oswald Stender, and John D. Waihe'e IV are residents of the State of Hawaii and are the Trustees of the Office of Hawaiian Affairs (AOHA@), an agency of the State of Hawaii, and are officials of the State of Hawaii. HHC/DHHL Defendants 18. Defendants Raynard C. Soon, Chairman, and Wonda Mae Agpalsa, Henry Cho, Thomas Comrades, Rockne Freitas, Herring Kalua, Milton Pa, and John Tomoso are residents of the State of Hawaii and are the commissioners of the 9 Hawaiian Homes Commission, an agency of the State of Hawaii, and are offidals of the State of Hawaii. Other Defendants The United States of America is named as a party because the constitutionality of two acts of Congress affeding the public interest (The HHCA and ~ ~ 4 and 5(f) of the Admission Act) are drawn in question. 28 U.S.C. ~ 2403. HHCA was originally a federal statute but is now a State law incorporated into the State Constitution by reference, Art. XII, 1, 2 ~ 3. See also page 12 of this Court=s order of July 12, 2001 in Barrett v. State of Hawaii, CV. No. 00-00645 DAE KSC. (Plaintiff challenged HHCA but did not name United States as party. Court granted summary judgment against Plaintiff. "In the absence of the United States as a party to this adion, this court is unable to redress Plaintiffs injury in any meaningful way. Plaintiffs do not believe that their daims are adverse to the interests of the United States in upholding the Constitution of the United States. Two presidents have expressed doubts as to the constitutionality of the express racial classification of Anative Hawaiianc~ as used by HHCA and certain other bills. (Statement by President Ronafd Reagan upon signing H.J. Res 17 in 1986 (HHCA `employs an express racial dassification".. 'raises serious equal protedion questwns°; and Statement by President George H.W. Bush upon signing S. 566 on November 28, 1990 (Affordable Housing Act defines °natve Hawaiian" in a "race-based fashion"... "cannot be derived from the constitutional authority granted to the Congress and the executive branch to benefd native Americans as members of tribes then President Bush expressed similar convidions in S.J. Res. 23 on Odober 6, 1992; S. 2044 on 10 October 26, 1992; and H.R. 939 on October 28, 1992). Plaintiffs therefore believe it is possible that the U.S. may chose not to defend or support the constitutionality of the HHCA laws or the OHA laws or the challenged interpretation of a portion of §5(f) of the Admission Act. 19. The ADce Defendants® are persons whose identities are unknown to Plaintiffs but who are believed to be residents of the State of Hawaii and to be agents, employees or officials of the State of Hawaii and are and will be engaged in the pertormance of their duties as agents, employees or officials of the State of Hawaii and further will be acting pursuant to directives, instructions, or orders from or with the permission of the Defendants, or those acting in concert with them or at their direction or under their control. 20. Each individual Defendant is sued only in his or her official capacity. Relief is sought against each Defendant as well as his or her or its agents, assistants, successors, employees, attorneys, and all persons acting in concert or cooperation with them or at their direction or under their control. LEGAL HISTORY (With notations showing applicability to Plaintiffs= claims in this action.) 1898 -The public land trust established for inhabitants of the Hawaiian Islands 21. In 1898, the Republic of Hawaii ceded its public lands (about 1.8 million acres formerly called the Crown lands and Government lands) to the United States with the requirement that all revenue from or proceeds of these lands except for those used for civil, military or naval purposes of the U.S. or assigned for the use of local 11 government "shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes". Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, Resolution No. 55, known as the ~Newlands Resolutionc~ approved July 7, 1898; Annexation Act, 30 Stat. 750 (1898) (reprinted in 1 Rev. L. Haw. 1955 at 13-15). 22. The Newlands Resolution established the public land trust. Such a special trust was recognized by the Attorney General of the United States in Op. Atty. Gen. 574 (1899); State v. Zimring 58 Haw. 106, 124, 566 P.2d 725 (1977) and Yamasaki 69 Haw. 154. 159, 737 P.2d 446, 449 (1987); see also Hawaii Attorney General Opinion July 7, 1995 (A.G. Op. 95-03) to Governor Benjamin J. Cayetano from Margery S. Brouster, Attorney General, ASecfion 5 [Admission Act] essentially continues the trust which was first established by the Newlands Resolution in 1898, and continued by the Organic Act in 1900. Under the Newlands Resolution, Congress served as Uustee; under the Organic Act, the Territory of Hawaii served as Trustee.® 23. In 1898, about 31 % of the inhabitants of Hawaii were of Hawaiian ancestry and the remaining 69% were of other ancestry. Robert C. Schmitt, Demographic Statistics of Hawaii, 1778-1965 (Honolulu, 1968). 24. In 1900, the Organic Act, 31 Stat. 141 (1900), ~ 73(e) reiterated that AAU funds arising from the sale or lease or other disposal of public land shall be...appfied to such uses and purposes for the benefit of the inhabitants of the Territory of Hawaii as are consistent with the joint resolution of annexation approved July 7, 1898.E (Emphasis added.) 12 25. Note: The public land trust, from its inception in 1898, required the ceded lands and proceeds and revenues derived from them, to be held Asolely for the benefit of the inhabitants of the Hawaiian Isiandse, not just for those of Hawaiian ancestry. (Emphasis added.) 26. Note: Nor did persons of Hawaiian ancestry, merety by virtue of their ancestry, have any special entitlement to the use, income or proceeds of the public lands of the Kingdom of Hawaii. The King conducted his govemment for the common good and not for the private interest of any one man, fatuity or class of men among his subjects. Constitution of 1852, Article 14. Every adult male subject, whether native of naturalized, was entitled fo vote. Id, Section 78. Everyone bom in the Kingdom (except children of foreign diplomats) was anative-bom subject of the Kingdom. In the last hall of the 19"' century, the government of the Kingdom actively encouraged immigration and offered immigrants easy naturalization and fuN political rights. For example, the Civil Code of 1858 provided that n[e[very foreigner so naturalized shall be deemed to ail intents and purposes a native of the Hawaiian Islands and shall be entitled to alt the rights, privileges and immunities of an Hawaiian subject.o 1921 -The Hawaiian Homes Commission Act 27. In 1921, Congress enacted the Hawaiian Homes Commission Act, 42 Stat. 108 (1921) ("HHCA'~ which set aside about 200,000 acres of the ceded lands and provided for bng term leases of Homestead bts (at one dollar per year) to "native Hawaiian" persons, defined in ~ 201(7) as "any descendant of not less than one-hall part of the blood of the races inhabiting the Hawaiian Islands previous to 1778." 13 28. Congress, by enacting the HHCA and limiting its benefits to a group selected on the basis of race or ancestry, caused the United States to violate the equal protection requirement implicit in the Fifth Amendment to the U.S. Constitution and also to violate its fiduciary duty as trustee of the public land trust to all the citizens of Hawaii who had none or Tess than Aone-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.E 1959 -The Admission Act 29. In 1959, when Hawaii became a state, the United States transferred title to the ceded lands (less those parts retained by the U.S. for national parks, military bases and other public purposes) back to Hawaii with the requirement in the Admission Act ~ 4 that the State adopt the HHCA and in ~ 5{f) that the State hold the ceded lands "as a public trust" for "one or more" of five purposes ("for the support of public schools and other publ"~ educational institutions", "for the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act" (i.e., "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778"), "for the development of farm and home ownership", "for the making of public improvements" and "for the provision of lands for public use." 30. Congress, by requiring as a condition of staiehood, that the HHCA be adopted and that grace-based component, (afor the betterment of the conditions of Arrative Hawaiians as defined in the HHCA, i.e., "any descendant of not less than one-half part of the bk>od of the races inhabiting the Hawaiian Islands previous to 1778.") be added to the purposes of the public land trust: 14 a. violated the equal protection implicit in the Fifth Amendment to the U.S. Constitution; b. also violated the Aequal footing doctrinec~ which prohibits Congress from imposing, as a condition of statehood, any restriction on a state=s constitutional powers not required of other states; c. also caused the United States to violate its fiduciary duty as trustee of the public land trust to all the atizens of Hawaii who had none or less than Aone-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.E 1978 -Hawaii Constitution purportedly amended, creates OHA, further breach of public land trust and violation of U.S. Constitution 31. In 1978, Hawaii's Constitution was purportedly amended to establish an Office of Hawaiian Affairs ("OHA"). Amended Article XII, Section 6 provides that the board of trustees of OHA "shall exercise power as provided by law; to manage and administer the proceeds from the sale...and income...including all income and proceeds from that pro rata portion of the trust referred to in Section 4 of this article for native Hawaiians " Secton 4 does not specify any pro rata portion. 32. Note: 1978 votes not tallied legaly. 18,833 voters disenfranchised. Doubtful that majority ratified OHA Amendments. The ballots for the 1978 ratification election were not tallied as requested by the Constitutional Convention or in compliance with the common law rule that a ballot must be counted if the voter's intent can be reasonably ascertained from the ballot. As a result of the illegal manner of 15 tallying, 18,833 voters who attempted to vote on the proposed amendments were disenfranchised. These rejected, uncounted 18,833 ballots (6.4% of the total votes cast) were more than enough to change the outcome on the amendments that established OHA and DHHL, the two least popular of all the thirty-four proposed amendments. Furthermore, only about 18% of the voters spec~celly marked their ballots "Yes ' A plurality of about 45°~ was recorded in favor of the OHA and DHHL amendments by counting balots that did not mark `Yes" or'No" regarding the amendments as affirmative votes. The Hawaii Constitution in effect at the time of the Nov. 7, 1978 general election provided in the relevant part that proposed constitutional "amendments shall be effective only ff approved at a general election by a majority of all the votes tallied upon the question..." Hawaii Constitution January 1969 Article XV, Section 2. Since 18,833 ballots, enough to change the outcome, were wrongfully rejected from the tatty, it was impossible to accurately determine that the amendments were approved by the necessary majority. 33. in 1980, the Hawaii Legislature enacted Section 10-13.5 H.R.S. 'Twenty per cent of all funds derived from the public land trust, described in Section 10-3, shall be expended by the office [OHA], as defined in section 10-2, for the purposes of this chapter." 34. By changing the Perms of the public land trust so as to permanently give 20% of the funds generated by the trust to a group selected only on the basis of their race or ancestry and who make up less than 5% of the trust beneficiaries, the Hawaii Legislature in 1980: 16 a. Required the State to violate the equal protection clause of the Fourteenth Amendment to the U.S. Constitution; and b. Required the State, as trustee of the public land trust, to violate its fiduciary duty to Plaintiffs and to over 95% of the beneficiaries, i.e., the about 1.1 million citizens of Hawaii who have less than 50% or no Hawaiian blood; 1990 -Legislature defines "revenues" retroactively, mandates Budget 8 Finance and OHA to negotiate. 35. In 1990 the Hawaii Legislature in Act 304 defined "revenue" from which OHA is to share, retroactive to 1980, as "all proceeds, fees, charges, rents or other income derived from any use or activity, that is situated upon and results from the actual use of lands comprising the public land trust". 36. Act 304, which was interpreted to calculate OHA's "pro rata share" on the gross revenues, (rather than on .vncome~ as provided in the Hawaii Constitution or on net income after expenses as required under trust law), further compounded the breach of the State's fiduciary duty to 95% of Hawaii's citizens, including Plaintiffs- 37. Act 304 also mandated that OHA and the State Department of Budget and Finance (A68F~+) negotiate the amounts payable to OHA for the years 1980 through 1991. 38. In 1993, after extensive discussions, a proposal for payment of about $130 million, incuding interest, for the years 1980 through 1991, supported by both OHA and the State, was submitted to the Legislature. State officials, including the then Director of the Department of Budget and Finance, testified that such amount would 17 "settle" or constitute "paying the full amount" of OHA's Gaims to revenues from the ceded lands for 1980-1991. OHA did nothing to dispel ihis understanding but rather confirmed it. The Legislature, by Act 35, then authorized and appropriated the amount in general obligat'an bond funds to be paid to OHA for this purpose. 39. In April 1993, after Act 35 was enacted, OHA and an official from the Office of State Planning ("OSP") signed a Memorandum which stated in part "OSP and OHA recognize and agree that the amount specked in Section 1 hereof does not include several matters regarding revenues which OHA has asserted is due to OHA and which OSP has not accepted and agreed to." 40. In June 1993 the approximately $130 million was paid to OHA for its share of the ceded lands revenues for 1980 through 1991. 1994 - OHA sues for more for same period, 1980 -1991 41. In January 1994, OHA commenced a lawsuit, OHA v. State of Hawaii, seeking payment of additional amounts going back to 1980 arising from receipts of the Waikiki duty-free shop, public housing, the Hilo Hospital and investment earnings on unpaid "revenue." 42. In October 1996, Circuft Court Judge Daniel G. Heety granted OHA's motion for partial summary judgment, ruling that OHA is entitled to a 209~o share of each of the items in question. The State appealed and the Hawaii Supreme Court until 1999 deferred ruling while the State and OHA discussed settlement. 18 43. Media accounts estimated that, ff Judge Heely's decision was affirmed, between $300 million and $1.2 billion may be payable to OHA for the period 1980 through 1991 in addition to the $130 million already paid to settle OHA's claims for that period. 1999 -Some of Plaintiffs here file amicus brief in OHA v. State 44. On May 29, 1999, some of Plaintiffs here filed in the Hawaii Supreme Court an amicus curiae brief in OHA v. State arguing on behaff of the Defendant State of Hawaii that the OHA laws are based on radal dass~cations and therefore presumptively invalid and subject to strict scrutiny. Also, Hawaiians have no Aspecial~ or Apolitical relationship, comparable to that of Indian tribes, which would exempt the OHA taws from strict scrutiny analysis. February 23, 2000 -Rice v. Cayetano decided by high court 45. On February 23, 2000, the Supreme Court of the United States in Rice v, Cayetano, 528 U.S. 495, struck down OHA=s Hawaiians-only voting restriction. In applying the Fifteenth Amendment, the Court rejected the arguments to the contrary by OHA and the State and held that the definitions of AHawaiiano and Anative Hawaiians are radal dassifigtions. 46. Those definitions, which the highest court in the land has now determined to be racial class cations, are the foundation and the only reason for the existence of OHA and HHCA. March 2000 -Some of Plaintiffs here sought to intervene in OHA v. State 19 47. On March 28, 2000, a diverse, mulfi-ethnic group of 23 Hawaii men and women, some of whom are Plaintiffs in this case, moved to intervene in the Hawaii Supreme Court in OHA v. State arguing, among other things, that the Rice decision together with the Supreme Court=s other decisions holding all racial class cations presumptively invalid, if applied in a case challenging OHA itself, will require that OHA be invalidated and its Gaims be dismissed. 48. On May 8, 2000, the Hawaii Supreme Court denied the motion to intervene in OHA v. State. No reason was stated. September 2001 -Hawaii Supreme Court dismisses OHA v. State 49. On September 12, 2001, the Hawaii Supreme Court in OHA v. State, reversed the 1996 Heely decision and dismissed the case for lack of justiciability. The Court said that, because it conflicts with federal legislation, AAct 304 a by its own tenns B is effectively repealed.s 50. The Hawaii Supreme Court did not rule on or mention the federal constitutional question raised in the amicus brief and in the motion to intervene. It nevertheless did say, Athe State=s obligation to native Hawaiians is firmly established in our constitutions and pit is incumbent upon the legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trusts OHA v. State, Appeal Nos. 20281 ~ 20216 Decision, September 12, 2001. 51. Folbwing the Hawaii Supreme Court=s decision, OHA trustee Clayton Hee was quoted in the media that OHA had cut its own throat by walking away from a settlement offer by the State of $251 million and 360 acres of ceded lands. 20 52. New bills are presently pending before the current Legislature of the State of Hawaii that would "reinstate Act 304-style funding" or, as an interim measure, appropriate $17 million to OHA. Some legislative leaders have said that interim funding in some amount would probably be favorably considered in the current session. STATEMENT OF CLAIMS Exhaustion of administrative remedies 53. Plaintiffs have no administrative remedy for challenging the constitutionality of the OHA laws or the HHCA laws or for enforcing their rights as beneficiaries of the public land trust. Need for equitable relief 54. Plaintiffs have no adequate remedy at taw and will continue to have their rights as benefiaaries of the pubic land trust and as taxpayers and their constitutional and civil rights violated as a result of the OHA laws and the HHCA laws and the ongoing acts of Defendants in implementing and enforcing them unless immediate and permanent injunctive relief is rendered. Harm to Plaintiffs and others similarly skuated 55. From July 7, 1898, when the public lands of Hawaii were ceded to the United States until enactment of the Hawaiian Homes Commission Act in 1921 the United States held title and the Territory of Hawaii remained in the possession, use and control of the public lands of Hawaii (except for those used for civil, military or naval 21 purposes of the U.S.), hereinafter called the Aceded lands@, and their revenues and proceeds, for the benefd of the inhabitants of Hawaii. This was in compliance with the public land trust and the Constitution of the United States. 56. From 1921, when Congress enacted the Hawaiian Homes Commission Act (AHHCA®) and set aside about 200,000 acres of the public lands of Hawaii for the exclusive benefit of Anatrve Hawaiians, to the present, some of Plaintiffs= ancestors and, ultimately, all of Plaintiffs have been deprived of the equal opportunity to use and benefd from those about 200,000 acres as well as thirty percent of the state receipts derived from the leasing of cultivated sugarcane lands and from water licenses and from the proceeds from other dispositions of those sugarcane lands, solely because they (Plaintiffs) are not of the favored race, i.e., because they are not adescendants of not less that one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.E 57. In 1995, based on a memorandum of understanding signed by the previous governor and enacted in the Special Session of 1995, Governor Cayetario signed Act 14 which established the "Hawaiian home lands trust fund" (now provided for in HCCA §213.ti.) to be used for capital improvements and other purposes in furtherance of HHCA and provided for the State to make twenty annual deposits of $30 million each into that fund. As of June 30, 2000, the State had paid DHHL $158 million and had appropriated another $15 million for these deposits. 58. As a result of the HHCA laws, and the issuance of Homestead leases pursuant to the racial classification in the HHCA laws and the ongoing acts of 22 Defendants in implementing and enforcing the HHCA laws, Plaintiffs and over one million of Hawaii=s other citizens similarly situated, have been and continue to be harmed as follows: a_ Diversions of public land trust lands and revenues to DHHL harm Plaintiffs as trust beneficiaries. As beneficiaries of the public land Dust Plaintiffs, and others similarly situated, are entitled to impartial treatment, equal access to all programs funded by public land trust revenues, and equal opportunity to use or benefit from the public lands. But as a result of the diversion of the about 200,000 acres of public lands and thirty percent of the State receipts from the sugarcane lands and water licenses and other diversions of public lands and revenues to DHHL and the issuance of Homestead leases pursuant to the racial class cation in the HHCA laws, each Plaintiff has been and continues to be deprived of the equal protection of the laws and his or her full and equal share of the use or benefits of the public land trust; b. Existing Homestead leases require the HHC/DHHL Defendants to continue to enforce and administer racially discriminatory provisions for over 100 more years. They inflict ongoing and continuing harm on Plaintiffs. As of January 31,2002 there were 7,281 Homestead leases outstanding (inducting 5,823 residential, 1076 agricultural and 382 pastoral) covering some 42,000 or more acres from the pubiic land trust. Each of these Homestead leases is required to have an initial term of 99 years 'unless sooner terminated as hereinafter provided°, extendable by DHHL for an additional term of 100 years, at rent of $1 per year. The original lessee is required to swear under oath that the lessee is a native Hawaiian. Upon the death of 23 a lessee the lessee's interest may vest in certain relatives who are at least one-quarter Hawaiian. The lessee is not permitted to transferor hold the premises for any other person except a native Hawaiian or Hawaiians, and then only upon the approval of DHHL. The lessee's interest is not subject to attachment, levy or sale upon court process, except pursuant to agreement with a native Hawaiian or Hawaiians or for any indebtedness due to or assured by DHHL. The lessee may mortgage or pledge his or her interest ony with the consent and approval of the HHC. to the case of residential Homestead leases, the lessee is required to occupy the bt as the lessee's home and to continue to occupy and use the lands on lessee's own behalf. The agricultural Homestead leases require the lessee to practice "good husbandry" and, should DHHL deem advisable and so require, the lessee shall adopt a farm or ranch plan prepared by the U.S. Soil Conservation Service. Also, "The primary purpose of the Act being the successful rehabilitafwn of native Hawaiians under the guidance and tutelage of the Lessor [DHHL), it is deemed necessary and in furtherance of said Act and the purpose thereof that the Lessor retain, and it does hereby so retain, the right to approve in advance any proposed agreement between the Lessee and another relating in any way to the use of the agricultural lot " Pastoral Homestead leases have similar provisions for good husbandry and the rehabriitation of native Hawaiians under DHHL's guidance and tutelage. The result of each of those Homestead leases is to deprive Plaintiffs of the benefd of some part of the public lands. A prudent trustee would and could obtain fair market lease rents substantialy higher than $1 per year. The HHClDHHL Defendants, by complying with the Homestead leases and performing the duties and exercising the rights of Lessor under those leases, deprive and continue to deprive 24 Plaintiffs, and others similarly sRuated, of the benefit of over 42,000 acres of lands in the public land trust, and the equal protection of the laws, solely because Plaintiffs are not of the favored race. c. DHHL has the right to withdraw the whole or any part of the lands demised by the Homestead leases as may be required for a public use and purpose. Compliance with the 14"' Amendment and the State's fiduciary duty as trustee of the public land trust are public uses and purposes. Under the Homestead leases, the DHHL reserves `The right to withdraw from the operation of this (ease the whole or any part or portion of the lands demised hereby, and any interest therein as in the exclusive judgment of the Lessor [DHHL] may be required for a public use and purpose The HHC/DHHL Defendants and the State Defendants are ail required to take an oath of office to support and defend the Constitution of the United States. (Hawaii State Constitution, Art.XVI §4; §202 HHCA; §26-34 HRS). Under the Constitution of the United States, state officials, including the HHC/DHHL Defendants and the State Defendants, are forbidden from denying to any person the equal protection of the laws on account of race. Their duty to support and defend the Constitution of the United States is a public purpose which overrides any inconsistent duties arising under state law or federal statutes. Also, both federal and state trust laws require the HNC/DHHL Defendants and the State Defendants to comply wkh the State's fiduciary duty and public purpose to act impartially in administering the public land trust. 25 d. Appropriations for DHHL harm Plaintiffs as taxpayers. Part of the State of Hawaii's tax revenues (which include taxes Plaintiffs pay to the State of Hawaii) are appropriated to the Department of Hawaiian Home Lands (DHHL) and part also may go to pay principal and interest on bonds that generated funds that have been appropriated to DHHL. For instance, for Fiscal Year 2001 at least $7,154,969 was appropriated to DHHL in general and special funds paid by the Plaintiffs and other taxpayers of Hawai i. 2000 Sess. L. Act 281. The Legislature also approved $25,000,000 in revenue bonds. The Hawaiian Homes Commissioners administer DHHL's funds and decide how those funds will be spent. The HHCA laws require the Hawaiian Homes Commissioners to work solely for the benefit of the racial class of native Hawaiians and to promote the interests of people in That class, particularly the people who have qualified for Homesteads based on their racial ancestry. tf the state tax revenues (including taxes Plaintiffs pay) were not diverted to DHHL, Plaintiffs' taxes could be reduced or funding for racially neutral programs that Plaintiffs could qualify for could be increased. Although each Plaintiffs tax burden is increased by the appropriations to DHHL, and by any appropriations to pay principal and interest on bonds that generated funds that have been appropriated to DHHL, every Plaintiff is denied any benefit of those appropriations solely because of his or her ancestry, f.e., he or she is not "native Hawaian' since none of Plaintiffs have the required one half part of the favored racial ancestry. Every Plaintiff is injured in that he or she is denied the equal protection of the laws and is forced to pay taxes for unconstitutional racially discriminatory programs. 26 59. From 1959 to 1978 the practice of the State of Hawaii was to channel the income of the ceded lands, except for the parts set aside under the HHCA, by and large to the Department of Education. Final Report of the Public Land Trust, Legislative Auditor, Dec. 1985. 60. This use of the income from the ceded lands, except for the parts set aside under the HHCA, complied with the public land trust because the primary purpose of the public land trust from the inception has been public education. It also complied with the Admission Act because the support of the public schools was one of the five permitted purposes. It also complied with the Constitution of the United States because R benefited all children of Hawaii who attended public schools without regard to their ' race or ancestry. Children of Hawaiian ancestry, who make up about 25% of the public school student body, shared fully in that benefd. 61. In 1978, through the Constitutional Convention and subsequent legislation, the State of Hawaii shifted this priority. It purportedly ordered the diversion of a Apro rata shared of ceded lands revenues and proceeds Ato the betterment of native Hawaiians® through a newty created agency, the Office of Hawaiian Affairs (AOHAc~). One consequence of these events was to take substantially all of the net income from the ceded lands and divert it from public education to OHA. Another consequence was to convert what had been (except for the HHCA) grace-neutral public land trust and convert it to one which Veafed beneficiaries differently based on their ancestry. 27 62. As a result of the OHA laws and the ongoing acts of Defendants in implementing and enforcing them, Plaintiffs and about one million of Hawaii=s other citizens similarly situated have been and continue to be harmed as follows: a. Diversions of public land trust revenues to OHA harm Plaintiffs as beneficiaries of the public land trust. At least $250 million in ceded lands revenues, or appropriations "equivalent to" such revenues, have been diverted to OHA for the exclusive benefit of the racial class defined as 'native Hawaiian". OHA is legally obliged to segregate and earmark funds from the public land trust for "native Hawaiians". According to OHA's financial report of November 30, 2002, OHA holds investments of over $304 million and total fund equity of over $337 million. Plaintiffs believe that most of those investments and funds are derived from public land trust revenues diverted to OHA. If the public land trust revenues were not diverted to OHA, funding for the racialy neutral purposes of the public land trust, such as public education, couk be increased; or that revenue could be spent on racially neutral programs now funded by tax revenues and Plaintiffs' taxes could be reduced; or funding for raaally neutral programs that each Plaintiff could qualify for could be increased. As a beneficiary of the public land trust each Plaintiff is entitled to impartial treatment and equal access to or benefd of all programs funded by public land trust revenues. But as a result of the diversion of the public land trust assets to OHA exclusively for'natrve Hawaiians', each Plaintiff is and continues to be denied the equal protection of the laws and continues to be deprived of his or her full and equal share of the benefrts of the public land trust; 28 b. Appropriations for OHA harm Plaintiffs as taxpayers. Part of the State of Hawaii's tax revenues (which include taxes each Plaintiff pays to the State of Hawaii) are appropriated to the Office of Hawaiian Affairs (OHA) and part also go to pay principal and interest on bonds that generated funds that have been appropriated to OHA. The trustees of the OHA administer OHA's funds and decide how those funds will be spent The OHA laws require the OHA trustees to work solely for the benefR of the racial classes of Hawaiians and native Hawaiians and to promote the interests of people in those racial classes. If the state tax revenues (including taxes each Plaintiff pays) were not diverted to OHA, each Plaintiff's taxes could be reduced or funding for racially neutral programs that each Plaintiff could qualify for could be increased. Although each Plaintiffs tax burden is increased by the appropriations to OHA, and the appropriations to pay principal and interest on bonds that generated funds that have been appropriated to OHA, each Plaintiff is denied any benefit of the portions set aside for "native Hawaiians" solely because of his or her ancestry, i.e., none of the Plaintiffs have the required one haFF part of the favored racial ancestry. All except three of the Plaintiffs are also denied any benefd of the portions set aside for "Hawaiians" because they have none of the favored ancestry. Every Plaintiff is harmed in that he or she is denied the equal protection of the laws and is forced to pay taxes for unconstitutional racially discriminatory programs. c. The exemption of Homestead lots from real property taxes also harms Plaintiffs as taxpayers. The City and County of Honolulu and the County of Maui both exempt Hawaiian Homesteads from paying real property taxes. To be 29 awarded a Hawaiian Homestead one must be native Hawaoan or the child of a native Hawaiian Homesteader. As a result of this racially discriminatory tax exemption, taxes imposed on the owners of other property, including every Plaintiff, in order to pay the costs of the government are higher than they otherwise would be. CLAIMS FOR RELIEF First Claim for Relief Equal Protection Clauses of Fourteenth and Fifth Amendments 63. Plaintiffs reallege paragraphs 1 through 62 as H set forth fully. 64. The Fourteenth Amendment of the Constitution of the United States provides: No State shall make or enforce any law which shall abridge the privileges or immunities of dozens of the United States; nor shall and State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protedion of the laws. 65. The Supreme Court of the United States held, in Rice v. Cayetano, 528 U.S. 495, 514 (2000) that the definitions of AHawaiian®and AnaUve Hawaiians in the OHA laws, which specfically incorporate the HHCA definition, are radal dassifications. AAncestry can be a proxy for race. It is that proxy here.® AThe State, in enacting the legislation before us, has used ancestry as a radal definition and for a radal purpose. Id at 515. AThe State=s electoral restriction enacts a rece-based voting qualification.e Id at 517. 30 66. Giving status, entitlements, privileges, preferences and benefits exclusively to people who meet those definitions are the foundation and the only reason for the existence of OHA, HHCA and DHHL. 67. The Supreme Court held in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222 (1995) that Aequal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendments and at 226, AAccordingly, we hold today that all racial classifiptions, imposed by whatever federal, state or local governmental actor must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. 68. The OHA laws and the HHCA laws cannot pass strict scrutiny because: (a) neither the State of Hawaii nor the United States has a compelling interest in dividing its citizens into two classes based on race and discriminating against those citizens in one class and favoring those in the other, and (b) even if some compelling interest existed, neither the OHA laws nor the HHCA laws are narrowly tailored. 69. To the extent that the Admission Act requires the State of Hawaii to adopt the HHCA and to the extent that it is construed as requiring or compelling the State to give native Hawaiians rights to the ceded lands, or revenues or proceeds thereof, not shared equaNy by other citizens, those parts of the Admission Act are invalid under the Fifth and Fourteenth Amendments and the Equal Footing doctrine. 70. The OHA laws, the HHCA laws, the Homestead leases issued pursuant to the racial classification in the HHCA laws, and the ongoing acts, customs and usages 31 of the State Defendants, the HHC/DHHL Defendants and the OHA Defendants in implementing and enforcing the OHA laws and the HHCA laws deny and continue to deny to Plaintiffs the equal protection of the laws and are ongoing violations of the Fourteenth Amendment. 71. If and to the extent that the OHA laws or the HHCA laws are defended, implemented or authorized by any acts, customs or usages of the United States or its officials, they deny and continue to deny to Plaintiffs the equal protection of the laws and are ongoing violations of the F"fifth Amendment. Second Claim for Relief Violation of the Civil Rights Act, 421 U.S.C. ~ 1983 72. Plaintiffs reallege paragraphs 1 through 71 as if set forth fully. 73. The Civil Rights Act, 42 U.S.C. ~ 1983, provides, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 74. The OHA laws, the HHCA laws, the Homestead leases issued pursuant to the racial classificat"ron in the HHCA laws and the ongoing acts, customs and usages of the State Defendants, the HHC/DHHL Defendants and the OHA Defendants under color thereof deny and continue to deny to Plaintiffs the equal protection of the laws and rights, privileges and immunities secured to them by the Constit?~tion and Taws of the United States and are ongoing violations of the Civil Rights Act, 42 U.S.C. ~ 1983. Third Claim for Relief 32 Breach of Public Land Trust 75. Plaintiffs reallege paragraphs 1 through 74 as if set forth fully. 76. The public land trust was created by federal law-. The Newlands Resolution in 1898 expressly accepting the terms offered by the Republic of Hawaii (including the requirement that, with the exceptions noted, proceeds and revenues of the ceded lands "shall be used solely for the benefit of the Inhabitants of the Hawaiian Islands for educational and other public purposes and the Organic Act in 1900 (reiterating that "All funds arising from the sale or lease or other disposal of public land shall be applied to such uses and purposes for the benefrt of the inhabitants of the Territory of Hawaii as are consistent with the Joint Resolution of Annexation approved July 7, 1898.' 77. Having accepted the duties of a trustee of the public land trust for the benefit of the people of Hawaii, the United States is (or at least through the time ft returned the ceded lands to Hawaii in 1959, was) obliged to treat all of the inhabitants of Hawaii, including the Plaintiffs, with the strict equality that is required of a trustee who is obliged to protect the interests of multiple beneficiaries. 78. The scope of the U.S. fiduciary duty in administering trust property is a question of federal law. U.S. v. Mason, 412 U.S. 391, 397 (1973). Congress's power to change the public land trust is limited by the Fifth Amendment, the equal footing doctrine and the fiduciary duty under federal law of the United States as trustee of the public land trust, at least through the time it returned most of the ceded lands to Hawaii in 1959. The power of the United States to act as trustee of the public land trust is, like 33 all of its powers, limited by the Fifth Amendment. The equal protection component of the Fifth Amendment and the obligations of a public trustee require that the United States in all its actions related to the public lands trust treat all beneficiaries equally, without regard to race. 79. The United States neither had nor has any constitutional power to authorize, permit or require the State as trustee of the pubic land trust to discriminate for or against beneficiaries on grounds of race or ancestry. 80. The State's role and the scope of its duties as trustee is likewise limited by federal law, including the Newlands Resolution, the Admission Act, the United States Constitution, the Fourteenth Amendment and other federal laws. The State has accepted the duties of a trustee of the public lands trust and has recognized that its fiduciary obligations to the beneficiaries are governed by the same strict standards applicable to private trustees. 'The State owes this same high standard to the beneficiaries of the ceded lands trust and, as stated in the text, the beneficiaries of this trust should not be left powerless to prevent the State from allegedly neglecting its obligations." Pele Defense Fund v. Paty, 73 Haw. 578, 604, 837 P.2d 1247, 1264 (1992). The trustee must deal impartially when there is more than one beneficiary. Ahuna v. Dept. Hawaiian Home Lands, 64 Haw. 327, 340 (1982) citing federal authorities including Mason, supra. 81. As beneficiaries of the public land trust, Plaintiffs have federally created rights under the Newlands Resokrtion and the Admission Act and have standing to invoke 42 U.S.C. § 1983 to sue state officials who violate the terms of the federally 34 created trust (as limited by the requirements of the United States Constitution) or who violate other federal taws in their administration of that trust_ 82. The OHA laws, the HHCA laws and the ongoing acts of the State Defendants, the HHClDHHL Defendants and the OHA Defendants in implementing and enforcing them and the Homestead leases issued only to people who satisfy the racial classification in the HHCA laws, breach the fiduciary duty those Defendants, as State officials, owe to Plaintiffs as beneficiaries of the public land tn~st and are ongoing violations of federal laws. 83. If and to the extent that the OHA laws or the HHCA laws are defended, supported, implemented or authorized by any acts, customs or usages of the United States or its officials, they breach the fiduciary duty the United States owes to Plaintiffs as benefiaaries of the public land trust and are ongoing violations of federal laws. Prayer Wherefore, Plaintiffs pray that this Court: A. DeGare: 1. The OHA laws and the HHCA laws are invalid under the Constftution of the United States, effective as of the date of the Court's Judgment; 2. All moneys, investments, lands and property of any kind, and all earnings thereon and growth thereof, held by or for OHA, HHC or DHHL, are general funds and property of the State of Hawaii; a. All such property is free of any trust or other encumbrance which restricts its use to the benefit of any racial classification or prevents it from being used for the benefit of all of the people of Hawaii; and 35 b_ All such property is within the care and control of the Defendant Governor to be used for such constitutional and non-discriminatory purposes as the State deems appropriate and in compliance with the public land trust for the inhabitants of the State of Hawaii; and 3. Continued management, administration and enforcement of the existing Homestead leases by HHC/DHHL Defendants woukl be an ongoing and continuing violation of federal law (the equal protection clause of the Fourteenth Amendment and the Civil Rights Act) and a continuing breach of the State's fiduciary duty, under federal law, as trustee of the public land trust; B. Order the HHC/DHHL Defendants and/or the State Defendants to negotiate with the existing Homesteaders for the State's exercise of its right to wtlhdraw the lands demised in a way that is fair to the Homesteaders but does not further violate the rights of Plaintiffs and others similarly situated.' ' Such negotiations could result in a global settlement under which, for example, the fee simple interest in the demised land is conveyed to the Homesteader in exchange for no or a reduced payment and a complete release of all claims by the Homesteader and his heirs and assigns against all parties, including all Gaims agairut the State of Hawaii and the United States and anyone else arising out of or related to the Homestead leases, the HHCA laws, the OHA laws and any other claims for Hawaiian entitlements. ff the fair market value of the land demised were, say, $50,000, the fee might be conveyed with no payment required. If the fa'v market value was $200,000 the Homesteader might be required to pay $150,000 within ten years or earlier 'rf the Homesteader sells or mortgages the land or ceases to occupy it as the Homesteader's residence. These are just examples showing how plaintiffs believe a fair settlement might be reached. Plaintiffs do not ask the court to order such a settlement Plaintiffs do believe that any settlement reached should be subject to this court's approval, to ensure that the interests of plaintiffs and others similarly sftuated are protected. ff no settlement is reached by the State and Homesteaders within a reasonable time, plaintiffs believe the court should order the State Defendants and the HHC/DHHL gefendants to withdraw the lands demised by the Homestead leases. In that event, and if the Homesteaders intervene in this action, plaintiffs believe the court should adjudicate the manner in 36 C. Permanently enjoin the HHC/DHHL Defendants from issuing any further Homestead leases, making any further grants, loans, guarantees, transfers, contracts or expenditures or doing any further developments relating to the HHCA laws, or from otherwise further implementing, enforcing or carrying out the HHCA laws; D. Permanently enjoin the OHA Defendants from making any further grants, loans, guarantees, transfers, contracts or expenditures relating to the OHA laws or from otherwise further implementing, enforcing or carrying out the OHA laws; E. Permanently enjoin the State Defendants from making or agreeing to make any further transfers of public moneys, investments, lands or property of any kind to or for OHA or to or for HHCA or DHHL and from otherwise carrying out, implementing or enforcing the OHA laws or the HHCA laws; F. Order the OHA Defendants to transfer to the State Defendants all moneys, investments, lands and property of any kind, and all eamings thereon and growth thereof, held by or for OHA; G. Order the HHCAlDHHL Defendants to transfer to the State Defendants aD moneys, investments, lands and property of any kind, and a?I eamings thereon and growth thereof, held by or for HHC and DHHL; H. Retain jurisdiction to exercise its equitable powers and issue such further orders in aid of execution of its judgment, to resolve disputes as to settlements between the State Defendants and the individual Homesteaders and to accomplish, to the greatest extent possible, either a gbbal settlement or final adjudication of all related which the demised lands are withdrawn so that it is fair to the Homesteaders and does not further violate the rights of plaintiffs and others similarly situated. 37 claims. 38 I. Allow Plaintiffs their costs herein, including reasonable attorney=s fees, and such other and further relief as is just. Dated: Honolulu, Hawaii this day of March, 2002. H. WILLIAM BURGESS PATRICK W. HANIFIN Attorneys for Plaintiffs 39 Section Three Appendices S.J. Res. 19 ®ne hundred r~Chird ~on~re,~~ of the `united Staten of ~merira AT THE FIRST SESSION Begun and held at the City of Washington on Tuesday, the fifth day of January, one thousand nine hundred and ninety-three ,point 'Reoolution To acknowledge the ]00th anniversary of the January ]7, ]893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of [he United States for the overthrow of [he Kingdom of Hawaii. Whereas, prior to the arrival of the first Europeans in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture, and religion; Whereas a unified monarchical government of the Hawaiian Islands was established in 1810 under Kamehameha I, the first King of Hawaii; Whereas, from ]826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full and com- plete diplomatic recognition to the Hawaiian Government, and entered into treaties and conventions with the Hawaiian mon- archs to govern commerce and navigation in 1826, 1892, 1899, ] 875, and 1887; Whereas the Congregational Church (now known as the United Church of Christ), through its American 13oard of Commissioners for Foreign Missions, sponsored and sent more than 100 mission- aries to the Kingdom of Hawaii between 1820 and 1850: Whereas, on January 14, 1893, John L. Stevens (hereafter referred to in this Resolution as the "United States Minister"), the United States Minister assigned to the sovereign and independent King- dom of Hawaii conspired with a small group of non-Hawaiian residents of the Kingdom of Hawaii, including citizens of the United States, to overthrow the indigenous and lawful Govern- ment of Hawaii; Whereas. in pursuance of the conspiracy to overthrow the Govern- ment of Hawaii, the United States Minister and the naval rep- resentatives of the United States caused armed naval forces of the United States to invade the sovereign Hawaiian nation on January 16, 1893, and to position themselves near the Hawaiian Government buildings and the lolani Palace to intimidate Queen Liliuokalani and her Government; Whereas, on the afternoon of January 17, ]893, a Committee of Safety that represented the American and European sugar plant- ers, descendents of missionaries, and financiers deposed the Hawaiian monarchy and proclaimed the establishment of a Provi- sional Government; Whereas the United States Minister thereupon extended diplomatic recognition to the Provisional Government that was formed by the conspirators without the consent of the Native Hawaiian people or the lawful Government of Hawaii and in violation of treaties between the two nations and of international law; S. J. Res. 192 Whereas, soon thereafter, when informed of the risk of bloodshed with resistance, Queen Liliuokalani issued the following state- ment yielding her authority to the United States Government rather than to the Provisional Government: "I Liliuokalani, by the Grace of God and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the Constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this King- dom. "That ]yield to the superior force of the llnited States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the Provisional Government. "Now to avoid any collision of armed forces, and perhaps the loss of life, 1 do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.". Done at Honolulu this 17th day of January, A.D. 1893.; Whereas, without the active support and intervention by the United Stales diplomatic and military representatives, the insurrection against the Government of Queen Liliuokalani would have failed for lack of popular support and insufficient arms; Whereas, on February 1, 1893, the United States Minister raised the American flag and proclaimed Hawaii to be a protectorate of the United States; Whereas the report of a Presidentially established investigation conducted by former Congressman James Blount into the events surrounding the insurrection and overthrow of January 17, 1893, concluded that the United States diplomatic and military rep- resentatives had abused their authority and were responsible for the change in government; Whereas, as a result of this investigation, the United States Min- ister to Hawaii was recalled from his diplomatic post and the military commander of the United States armed forces stationed in Hawaii was disciplined and forced to resign his commission; Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the conspirators, described such acts as an "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress", and acknowledged that by such acts the government of a peaceful and friendly people was overthrown; Whereas President Cleveland further concluded that a "substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor - to repair" and called for the restoration of the Hawaiian monarchy; Whereas the Provisional Government protested President Cleve- land's call for the restoration of the monarchy and continued to hold state power and pursue annexation to the United States; Whereas the Provisional Government successfully lobbied the , Committee on Foreign Relations of the Senate (hereafter referred to in this Resolution as the "Committee") to conduct a new roves- S. J. Res. 19-3 ligation into the events surrounding the overthrow of the monar- chy; Whereas the Committee and its chairman, Senator John Morgan, conducted hearings in Washington, D.C., from December 27, 1893, through February 26, 1899, in which members of the Provisional Government justified and condoned the actions of the United States Minister and recommended annexation of Hawaii; Whereas, although the Provisional Government was able to obscure the role of the United States in the illegal overthrow of the Hawaiian monarchy, it was unable to rally the support from two-thirds of the Senate needed to ratify a treaty of annexation; Whereas, on July 9, 1899, the Provisional Government declared itself to be the Republic of Hawaii; Whereas, on January 24, 1895, while imprisoned in lolani Palace, Queen Liliuokalani was forced by representatives of the Republic of Hawaii to officially abdicate her throne; Whereas, in the 1896 United States Presidential election, William McKinley replaced Grover Cleveland; Whereas, on July 7, ]898, as a consequence of the Spanish-American War, President McKinley signed the Newlands Joint Resolution that provided for the annexation of Hawaii; Whereas, through the Newlands Resolution, the self-declared Republic of Hawaii ceded sovereignty over the Hawaiian Islands to the United States; Whereas the Republic of Hawaii also ceded 1,8D0,000 acres of crown, government and public lands of the Kingdorr~ of Hawaii, without the consent of or cornpensation to the Native Hawaiian people of Hawaii or their sovereign government; Whereas the Congress, through the Newlands Resolution, ratified the cession, annexed Hawaii as part of the United States, and vested title to the lands in Hawaii in the United States; Whereas the Newlands Resolution also specified that treaties exist- ing between Hawaii and foreign nations were to immediately cease and be replaced by United States treaties with such nations; Whereas the Newlands Resolution effected the transaction between the Republic of Hawaii and the United States Government; Whereas the indigenous Hawaiian people never directly relin- quished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum; Whereas, on April 30, 1900, President McKinley signed the Organic Act that provided a government for the territory of Hawaii and defined the political structure and powers of the newly established Territorial Government and its relationship [o the United States; Whereas, on August 21, 1959, Hawaii became the 50th State of the United States; Whereas the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land; Whereas the long-range economic and social changes in Hawaii over the nineteenth and early twentieth centuries have been devastating to the population and to the health and well-being of the Hawaiian people; Whereas the Native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral terri- tory, and their cultural identity in accordance with their own S. J. Res. 19-9 spiritual and traditional beliefs, customs, practices, language, and social institutions; Whereas, in order to promote racial harmony and cultural under- standing, the Legislature of the State of Hawaii has determined that the year 1993 should serve Hawaii as a year of special reflection on the rights and dignities of the Native Hawaiians in the Hawaiian and the American societies; Whereas the Eighteenth General Synod of the United Church of Christ in recognition of the denomination's historical complicity in the illegal overthrow of the Kingdom of Hawaii in 1893 directed the Office of the President of the United Church of Christ to offer a public apology to the Native Hawaiian people and to initiate the process of reconciliation between the United Church of Christ and the Native Hawaiians; and Whereas it is proper and timely for the Congress on the occasion of the impending one hundredth anniversary of the event, to acknowledge the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the United Church of Christ with Native Hawaiians: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States ofAmerica in Congress assembled, SECTION J. ACKNOWLEDGMENT AND APOLOGY. The Congress (I) on the occasion of the IOOth anniversary of the illegal overthrow of the KingdorrJ of Hawaii on January 17, 1893, acknowledges the historical significance of this event which resulted in'the suppression of the inherent sovereignty of the Native Hawaiian people; (2) recognizes and commends efforts of reconciliation initi- ated by the State of Hawaii and the United Church of Christ with Native Hawaiians; (3) apologizes to Native Hawaiians on behalf of the people of the United States for [he overthrow of the Kingdom of Hawaii on January 17, 1893 with [he participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination; (9) expresses its commitment to acknowledge the ramifica- tions of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people; and (5) urges the President of the United States to also acknowl- edge the ramiTications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people. SEC. 2. DEFINITIONS. As used in this Joint Resolution, the term "Native Hawaiian' means any individual who is a descendent of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. S. J. Res. 19-5 SEC. 3. DISCLAIMER. Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States. Speaker of the House of Representatives. Vice President of the United States and President of the Senate. nll Smnmary & Sums 6/&03 4:49 pM Bill Summary & Status jor the 103rd Congress NF.~~' SEARCH (HOME ~ HELP ~ ABOUT STATUS S.J.RES.19 Title: A joint resolution to acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Ilawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii. Sponsor: Sen Akaka, Daniel K. [Hl] (introduced 1/21/1993) Cosponsors: I Latest Major Action: 11/23/1993 Became Public Law No: 103-150. STATUS: (color indicates Senate actions) (Floor Actions/Congressional Record Paee References) 1/21/1993: Read twice and referred to the Committee on Indian Affairs. 7/29/1993: Committee on ]ndian Affairs. Ordered to be reported without amendment favorably. 8/6/1')93: Committee on Indian Affairs. Reported to Senate by Senator Inouye without amendment. With written report No. 103-126. R/6/1')93: Placed on Senate Legislative Calendar under General Orders. Calendar No. 185. ]0/27/1993: Measure laid before Senate by unanimous consent. 10/27/1993: Passed Senate without amendment and with a preamble by Yea-Nay Vote. 65-34. Record Vote No: 332. 10/27/1993: Message on Senate action sent to the House. 10/27/1993 4:46pm: Received in the House. 10!27/1993 4:46pm: Held at the desk. 11/15/1993 4:32pm: Mrs. Mink moved to suspend the rules and pass the resolution. 1]/15/1993 4:32pm: Considered under suspension of the rules. 11/15/1993 4:50pm: On motion to suspend the rules and pass the resolution Agreed to by voice vote. ]1/15/1993 4:SIpm: Motion to reconsider laid on the table Agreed to without objection. 11/15/1993: Cleared for White House. 11/17/1993: Presented to President. 11/23/1993: Signed by President. 11/23/1993: Became Public Law No: 103-] 50. ttp:/hhomas.locgovlcgi-bin/bdgvcry/z?d103~S]00019:@@@X~TOM:/bss/d103query.html~ Psge I oft rS. Senare: Legislafion & Records ?ome> Vmcs> Roll fall Vore 6/8/03 4:SS PH U.S. rS~.NRT~ Latulmark Legislation Home > Lecisladon & Records Home » Votes a Rat Ca:= brote CNck here to Team what the historical events took place this month in Senate history on U.S. Senate Roll Call Votes 103`d Congress -1st Session Senate.goJs Landmark Legislation Page. as compiled through Senate LIS by the Senate Bill Clerk under the direction - of the Secretary of the Senate ~ Vote Summary Fiml BBIs._._.~ Question: On the Joint Resolution (s.j.res.19 passage) Vote Number: 332 Vote Date: October 27, 1993, 02:34 PM Use this guide to help you ru,a the tun text of recent bull and resolutions on Required For Majority: t/2 Vote Result: Joint Resolution Passed the web, or order them from the Senate or House Document Rooms, Vote YFJts 65 or ou can fmd ulem in a ILrary. L--y 1 Counts: NAYS 34 Noi Voting ~ Find RBIs in THOMAS .T..1 You can access legislative Vote Summary By Senator Name By Vote Position ev Home Slate iniormalion, by btu number or key words, hom eIe THOMAS Web site. Inionnation hom the presem back to the 93rd Alphabetical by Senator Name congress (1973) is available on Akaka (D-HI), Yea Feingold (D-WI), Yea McConnell (R-KY), Nay THOMAS. _.___._.I. Baucus (D-MT), Yea Feinstein (D-CA), Yea Metzenbaum (D-OH), Bennett (R-UT), Nay Ford (D-KY), Yea Yea Biden (D-DE), Yea Glenn (D-OH), Yea Mikulski (D-MD), Yea Bingaman (D-NM), Yea Gorton (R-WA), Nay Mitchell (D-ME}, Yea Bond (R-MO), Nay Graham (D-FL), Yea Moseley-Braun (D-IL), Boren (D-OK), Yea Gramm (R-TX), Nay Yea Boxer (D-CA), Yea Grassley (R-IA), Nay Moynihan (D-NY), Yea Bradley (D-NJ), Yea Gregg (R-NH), Nay Murkowski (R-AK), Yea Breaux (D-LA), Yea Harkin (D-IA), Yea Murray (D-WA), Yea Brown (R-CO), Nay Hatch (R-UT), Nay Nickles (R-OK), Nay Bryan (D-NV), Yea Hatfield (R-OR), Yea Nunn (D-GA), Not Voting Bumpers (D-AR), Yea HeOin (D-AL), Yea Packwood (R-OR), Nay Burns (R-MT), Yea Helms (R-NC), Nay Pell (D-RI), Yea Byrd (D-W~, Yea Hollings (D-SC), Yea Pressler (R-SD), Yea Campbell (D-CO), Yea Hutchison (R-TX), Nay Pryor (D-AR), Yea Chafee (R-RI), Yea Inouye (D-HI), Yea Reid (D-N V), Yea Coats (R-IN), Nay Jeffords (R-VT), Nay Riegle (D-MI), Yea Cochran (R-MS), Yea Johnston (D-LA), Yea Robb (D-VA), Yea Cohen (R-ME), Nay Kassebaum (R-KS}, Rockefeller (D-WV), Yea Conrad (D-ND), Yea Yea Roth (R-DE), Nay Coverdell (R-GA), Nay Kempthorne (R-ID), Sarbanes (D-MD), Yea Craig (R-ID), Nay Nay Sasser (D-TN), Nay D'Amato (R-NY), Nay Kennedy (0.MA), Yea Shelby (D-AL), Nay Danforth (R-MO), Nay Kerrey (D-NE), Yea Simon (0.1L), Yea Daschle (D-SD), Yea Kerry (D-MA), Yea Simpson (R-WY), Nay DeConcini (0.AZ), Yea Kohl (D-WI), Yea Smith (R-NH), Nay Dodd (0.CT), Yea Lautenberg (D-NJ), Specter (R-PA), Yea Dole (R-KS), Yea Yea Stevens (R-AK), Yea Domenict (R-NM), Yea Leahy (D-Vl], Yea Thurmond (R-SC), Nay Dorgan (D-ND), Yea Levin (D-MI), Yea Wallop (R-WY), Nay Durenberger (R-MN), Lieberman (D-CT), Yea Warner (R-VA), Yea Nay Lott (R-MS), Nay Wellstone (D-MN), Yea Exon (D-NE), Yea Lugar (R-IN), Nay Wofford (0.PA), Yea Faircloth (R-NC), Nay Mack (R-FL), Nay Mathews (D-TN), Yea McCain (R-AZ), Nay Vole Summary By Senator Name By Vote Position By Home Sfate up.//wwwsenae.gov/legislative/LIS/roll_call_)ists/roll_call_vmc_cfm.cfm?congress=103&scssion=l&vore=00332 Page I of3 :.5. Srnarc-. Legislatan & Records Home> Voms > Roll Ca0 Vwe 6/8/03 4.55 PM Grouped By Vote Position YEAs --65 Akaka (D-HI) Exon (D-NE) Metzenbaum (0.OH) Baucus (D-MT) Feingold (D-WI) Mikulski (D-MD) Biden (D-DE) Feinstein (D-CA) Mitchell (D-ME) Bingaman (D-NM) Ford (D-KY) Moseley-Braun (D-IL) Boren (0.OK) Glenn (D-OH) Moynihan (D-NY) Boxer (D-CA) Graham (0.FL) Murkowski (R-AK) Bradley (D-NJ) Harkin (D-IA) Murray (D-WA) Breaux (0.LA) Hatfield (R-OR) Pell (D-RI) Bryan (D-NV) Heflin (D-AL) Pressler (R-SD) Bumpers (D-AR) Hollings (D-SC) Pryor (D-AR) Bums (R-MT) Inouye (D-HI) Reid (D-NV) Byrd (D-W V) Johnston (D-LA) Riegle (D-MI) Campbell (D-CO) Kassebaum (R-KS) Robb (D-VA) Chatee (R-RI) Kennedy (D-MA) Rockefeller (D-WV) Cochran (R-MS) Kerrey (D-NE) Sarbanes (D-MD) Conrad (D-ND) Kerry (D-MA) Simon (D-IL) Daschle (D-SD) Kohl (D-WI) Specter (R-PA) DeConcini (D-AZ) Lautenberg (D-NJ) Stevens (R-AK) Dodd (D-CT) Leahy (D-VT) Warner (R-VA) Dole (R-KS) Levin (D-MI) Welistone (D-MN) Domenici (R-NM) Lieberman (D-CT) Wofford (D-PA) Dorgan (D-ND) Mathews (D-TN) NAYS ---34 Bennett (R-UT) Gramm (R-TX) McConnell (R-KY) Bond (R-MO) Grassley (R-IA) Nickles (R-OK) Brown (R-CO) Gregg (R-NH) Packwood (R-OR) Coats (R-IN) Hatch (R-UT) Roth (R-DE) Cohen (R-ME) Helms (R-NC) Sasser (D-TN) Coverdell (R-GA) Hutchison (R-TX) Shelby (D-AL) Craig (R-ID) Jeffords (R-VT) Simpson (R-WY) D'Amato (R-NY) Kempthorne (R-ID) Smith (R-NH) Danforth (R-MO) Lott (R-MS) Thurmond (R-SC) Durenberger (R-MN) Lugar (R-IN) Wallop (R-WY) Faircloth (R-NC) Mack (R-FL) Gorton (R-WA) McCain (R-AZ) Not Voting -1 Nunn (D-GA) Vote Summary By Senator Name By Vote Position By Home State Grouped by Home State Alabama: Heflin (0.AL), Yea Shelby (0.AL), Nay Alaska: Murkowski (R-AK), Yea Stevens (R-AK), Yea Arizona: DeConcini (D-AZ), Yea McCain (R-A~, Nay Arkansas: Bumpers (D-AR), Yea Pryor (D-AR), Yea Cal--rfomia: Boxer (D-CA), Yea Feinstein (D-CA), Yea Colorado: Brown (R-CO), Nay Campbell (D-CO), Yea Connecticut: Dodd (D-CT), Yea Lieberman (D-CT), Yea Delaware: Biden (D-DE), Yea Roth (R-DE), Nay Florida: Graham (D-FL), Yea Mack (R-FL), Nay Georgia: Coverdell (R-GA), Nay Nunn (D-GA), Not Voting Hawaii: Akaka (0.HI), Yea Inouye (D-HI), Yea Idaho: Crag (R-ID), Nay Kempthorne (R-ID), Nay Illinois: Yeaeley-Braun (D-IL), Simon (D-IL), Yea Indiana: Coats (R-IN), Nay Lugar (R-IN), Nay Iowa: Grassley (R-IA), Nay Harkin (D-IA), Yea Kansas: Dole (R-KS), Yea Kassebaum (R-KS), Yea nyl/wwwsenate.gov4egislative21S/roIl_till_lists/roll_call_rae_crm.erm?congress=103&sessioo--1 &volr-00337 Pagc 1 of3 U.S. Srnate' Legislation & Records Home> Votes> Roll Call Vote 6/8/03 4i5 Pp Kentucky: Ford (D-KY), Yea McConnell (R-KY), Nay Louisiana: Breaux (D-LA), Yea Johnsion (D-LA), Yea Maine: Cohen (R-ME), Nay Mitchell (D-ME), Yea Maryland: Mikulski (D-MD), Yea Sarbanes (D-MD), Yea Massachusetts: Kennedy (D-MA), Yea Kerry (D-MA), Yea Michigan: Levin (D-MI), Yea Riegle (D-MI), Yea Minnesota: Nay nberger (R-MN), yyellstone (D-MN), Yea Mississippi: Cochran (R-MS), Yea Lott (R-MS), Nay Missouri: Bond (R-MO), Nay DanfoAh (R-MO), Nay Montana: Baucus (D-MT), Yea Burns (R-M~, Yea Nebraska: Exon (D-NE), Yea Kerrey (0.NE), Yea Nevada: Bryan (D-NV), Yea Reid (D-NV), Yea New Hampshire: Gregg (R-NH), Nay Smith (R-NH), Nay New Jersey: Bradley (D-NJ), Yea Lautenberg (0.NJ), Yea New Mexico: Bingaman (D-NM), Yea Domenici (R-NM), Yea New York: D'Amato (R-NY), Nay Moynihan (D-NY), Yea North Carolina: Faircbth (R-NC), Nay Helms (R-NC), Nay North Dakota: Conrad (D-ND), Yea Dorgan (D-ND), Yea Ohio: Glenn (D-OH), Yea Metrenbaum (D-OH), Yea Oklahoma: Boren (D-OK), Yea Nickles (R-OK), Nay Oregon: Hatfield (R-OR), Yea Packwood (R-OR), Nay Pennsylvania: Speller (R-PA), Yea WoRord (D-PA), Yea Rhode Island: Chafee (R-RI), Yea PeB (D-RI), Yea South Carolina: Hollings (D-SC), Yea Thurmond (R-SC), Nay South Dakota: Daschle (0.SD), Yea Pressler (R-SD), Yea Tennessee: Mathews (D-TN), Yea Sasser (D-TN), Nay Texas: Gramm (R-TX), Nay Hutchison (R-TX), Nay Utah: Bennett (R-UT), Nay Hatch (R-UT), Nay Vermont: Jeffords (R-Vi), Nay Leahy (0.VT), Yea Virginia: Robb (D-VA), Yea Warner (R-VA), Yea Washington: Gorton (R-WA), Nay Murray (D-WA), Yea West Virginia: Byrd (D-WV), Yea Rockefeller (D-WV), Yea Wisconsin: Feingold (D-WI), Yea Kohl (D-WI), Yea Wyoming: Simpson (R-WY), Nay Wallop (R-WY), Nay Vote Summary By Senator Name By Vote Position ev Home State Mtp://wwwsrnato.govflegislativc/L]ShoII_call_lists/roll call vote cfm.cfm?congress=103ffisession=l Rvote=00332 Page 3 of? ~ x~ ~ STATE COUNCIL OF HAWAIIAN HOMESTEAD ASSOCIATIONS Island of O `ahu Kewalo Hawaiian Homestead Community Association Nanakuli Hawaiian Homestead Community Association Papakolea Community Association Princess Kahanu Estates Association Wai`anae Kai Homestead Association Wai`anae Valley Homestead Community Association Waimanalo Hawaiian Homes Association Island ofHawai`i Maku`u Farmers Association Kawaihae Homestead Association Waimea Hawaiian Homesteaders Association, Inc. Island of Kaua `i Anahola Hawaiian Homes Association Anahola Hawaiian Land Farms Association Kekaha Hawaiian Homesteaders Association Island of Maui Keokea Hawaiian Homes Farmers Association Paukukalo Hawaiian Homestead Community Association, Inc. Waiehu Kou Community Homestead Association Waiohuli Hawaiian Homesteaders, Inc. Ka `Ghana O Kahikinui, Inc. Island of Moloka `i Ho`olehua Homestead Association Ho`olehua Homestead Agricultural Association Kalamaula Mauka Homestead Association Kamiloloa-One Ali`i Homesteaders Association Kapaakea Homesteaders Association HUI KAKO`O `AINA HO`OPULAPULA Hui Kako`o Aina Ho`opulapula -Kahului, Maui Hui Kako`o Aina Ho`opulapula - Kealakekua, Hawaii Hui Kako`o Aina Ho`opulapula - Kaunakakai, Molokai Hui Kako`o Aina Ho`opulapula -Hilo, Hawaii Hui Kako`o Aina Ho`opulapula - Waimanalo, Oahu Hui Kako`o Aina Ho`opulapula -Kailua, Oahu Hui Kako`o Aina Ho`opulapula - Keaau, Hawaii Hui Kako`o Aina Ho`opulapula - Anahola, Kauai Hui Kako`o Aina Ho`opulapula - Wailuku, Maui Hui Kako`o Aina Ho`opulapula - Lanai City, Lanai Hui Kako`o Aina Ho`opulapula -Burke, Virginia ASSOCIATION OF HAWAIIAN CIVIC CLUBS Hawaii District Council Hamakua Hawaiian Civic Club Hilo Hawaiian Civic Club Ka`u Hawaiian Civic Club Kohala Hawaiian Civic Club Kona Hawaiian Civic Club Laupahoehoe Hawaiian Civic Club South Kohala Hawaiian Civic Club Waimea Hawaiian Civic Club Prince David Kawananakoa Hawaiian Civic Club Oahu District Council Ahahui Siwila Hawaii O Kapolei Ali`i Pauahi Hawaiian Civic Club Hawaiian Civic Club of Ewa-Puuloa Hawaiian Civic Club of Honolulu Kailua Hawaiian Civic Club Kalihi-Palama Hawaiian Civic Club King Kamehameha Hawaiian Civic Club Ko`olauloa Hawaiian Civic Club Ko`olaupoko Hawaiian Civic Club Kualoa-Heeia Hawaiian Civic Club Lanihuli Hawaiian Civic Club Nanaikapono Hawaiian Civic Club Pearl Harbor Hawaiian Civic Club Prince Kuhio Hawaiian Civic Club Princess Kaiulani Hawaiian Civic Club Queen Emma Hawaiian Civic Club Hawaiian Civic Club of Wahiawa Hawaiian Civic Club of Waialua Waianae Hawaiian Civic Club Waikiki Hawaiian Civic club Hawaiian Civic Club of Waimanalo Kauai District Council Kaumuali`i Hawaiian Civic Club Hanalei Hawaiian Civic Club Maui District Council Central Maui Hawaiian Civic Club Ho`olehua Hawaiian Civic Club (Moloka`i) Mainland District Council Aha Hui Kiwila Hawaii O San Diego (San Diego, California) Aha Hui O Lili`uokalani (Cerritos, California) Ainahau O Kaleponi (Huntington Beach, California) Hui O Hawaii O Utah (Salt Lake City, Utah) Kauwahi Anaina Hawaii (Provo, Utah) Keiki O Hawaii (Anchorage, Alaska) Las Vegas Hawaiian Civic Club (Las Vegas, Nevada) Pi`ilani Hawaiian Civic Club of Colorado (Littleton, Colorado) Southern Nevada Hawaiian Civic Club (Las Vegas, Nevada) 1 Produced b~ the Council for Native Hawaiian Advancenter~t 33 South Kind; S~nse~, Suite 513, Flonohilu, Ilawaii 96813 u~u~u~ hau~aiiancouncil.n~g HA Policy Brief Economic Im~iact of Native Hawaiian Federal Recognition May 2003 Council for Native Hawaiian Advancement 33 South King Street, Suite 513 Honolulu, Hawaii 96813 T: 808.521.5011 F: 808.521.4111 www.hawauancouncil.org ; Council for Native Hawaiian Advancement The Council for Native Hawaiian Advancement is a nonprofit organization that works to empower Native Hawaiians by providing training, technical assistance, research, advocacy, and opportunities to convene for Native Hawaiian organizations and communities. Consistent with its philosophy of Native empowerment, CNHA is a membership organization, governed by the Native organizations and communities it serves. CNHA Policy Briefs CNHA produces periodic briefing papers on public policies of importance to the Native Hawaiian community. CNHAPoIicyBriejs provide information and analysis that helps stakeholders make informed decisions about the public policies that affect Native Hawaiians, and actively contribute to policy formation. State Council of Hawauan Homestead Associations & Hni Kako'o 'Aina Ho`opulapula This Policy Brief was commissioned by the State Council of Hawaiian Homestead Associations (SCHHA) and Hui)Lako`o Aina Ho`opulapu]a (Hui). The SCHHA and Hui work to protect and preserve the Hawaiian Home Lands Trust and envision a trust governed and operated in perpetuity by its beneficiaries. For more information on the SCHHA or Hui, write to or visit their website at wwwschha.org and wwwhawaiianlands.com Economic Impact of Federa] Recognition Page 1 Introduction Legislation is currently before Congress that would reaffirm that Native Hawaiians are an indigenous people, with political status and rights similar to American Indians and Alaska Natives. If enacted, the legislation would reaffirm Native Hawaiians' right to self-governance by creating a process for the United States to recognize a Native Hawaiian government, once formed, and to work with it, U-S. government to Native government. Reaffirming the political status of the Native Hawaiian people protects existing trusts, programs, and agencies established to serve Native Hawaiians. By putting the U.S, relationship to Native Hawaiians in its proper context, as one nation relating to another nation, this legislation clarifies that the U.S. interest in Native Hawaiians is as one political body relating to another, and not as a government relating to one of its racial minority populations. Pending lawsuits that threaten to dismantle these entitlements by alleging that they are race-based would lack foundation. The outcome of lawsuits and legislation related to federal recognition will have a dramatic impact upon people and communities across Hawaii. The potential social and political consequences are well understood by those on both sides of the federal recognition debate. The economic benefits associated with recognition are less well known, and rarely considered. This Policy Brief examines the economic benefits that would likely result fmm federal recognition of Native Hawaiians. It presents information for consideration by policymakers and other stakeholders on the scale and variety of economic impacts linked to recognition. A complete quantitative accounting of these economic benefits is beyond the scope of this Brief. Federal Recognition for Native Hawaiians Congress, in numerous acts, has recognized Native peoples as having an inherent right to self- determination and self-governance that pre-dates the existence of the United States and has never been extinguished. Congress has also found that self-governance is the most effective means for Native peoples to be self-determining and ensure the continued survival of Native peoples, languages and cultures. In order for Native peoples to be effective in charting their own course, their political institutions must be empowered and recognized by the United States as valid governments. Federal recognition involves: (a) official acknowledgement bythe United States of an indigenous people with the right to seH-governance, and (b) authorization of a process whereby those people can form a government and petition for formal recognition by the U.S. In numerous Congressional and Executive acts, the United States has acknowledged that American Indians, Alaska Natives and Native Hawaiians are indigenous peoples with a continued right to self-governance. The United States has a process in place for recognizing American Indian and Alaska Native governments, but to date, lacks a process for recognizing a Native Hawaiian government. For the past two years, Native Hawaiians have asked Congress for parity in federal policy towards Native peoples, and to create a process for recognizing a Native Hawaiian government. The push for a federal recognition process took on new urgency last year when Earl F. Arakaki and twelve other individuals filed suit against the State of Hawai i. The plaintiffs hold that Native Hawaiians are racial minorities with no special political status or trust entitlements like other Native peoples. Therefore, Plaintiffs argue, the trusts, agencies and programs established to benefit Native Hawaiians are race-based, and must be dismantled under the Equal Protection Clause of the U.S. Constitution.' The suit is expected to reach the Supreme Court on appeal within 2 to 3 years. The costs and benefits of federal recognition are inextricably linked to the Arakaki Lawsuit. If recognition is not secured, and the Plaintiffs in the lawsuit prevail, state and federal trusts, agencies, and programs established for the benefit of Native Hawaiians will be eliminated. If ©Council for Nafive Hawaiian Advancement 2003 " Economic Impact of Federal Recognition Page 2 recognition is secured through an Act of Congress, the political status of Native Hawaiians will be clarified and reaffirmed, existing programs and agencies will likely be protected, and the door would be opened for creation of a new Native government. It is within this context of lawsuits and legislation that economic benefits of federal recognition must be considered. The Economic Impact of Federal Recognition Federal recognition is commonly debated in terms of its social and political effects. Proponents of recognition frequently assert that without it, the Arakaki lawsuit will proceed to its anticipated outcome and 20;000 Hawaiian homesteaders will face eviction; more than 19,000 individuals waiting for homesteads (some of whom have waited for decades) will be dropped from the list; and programs that benefit scores of organizations and thousands of individual Native Hawaiians will be eliminated. With recognition, the door will be opened for the creation of a new Native Hawaiian government and a variety of attendant risks and rewards. These consequences of recognition are well known and regularly considered by those for and against its passage. The economic impact associated with federal recognition are less understood and rarely considered. These benefits are substantial and are of three primary types: (1) the avoided costs of lost federal funding for Native Hawaiian programs; (2) the avoided costs of eliminating State agencies and programs serving Native Hawaiians; (3) other benefits of recognition (over and above the avoided costs). This Policy Brief examines each of these economic benefits in turn. Avoided Cost of Lost Federal Funding If federal recognition for Native Hawaiians is not secured, and the Supreme Court finds in favor of the Arakaki plaintiffs, one major consequence will be the elimination of federal funding targeted to Native Hawaiians. Over the years, Congress has established numerous programs to support housing, community development, social services, education, and healthcare for Native Hawaiians. Substantial sums of federal funding from these programs flow into the state of Hawai i each year. These funds have well known social impacts -they work to address the social needs of Native Hawaiians. But, they also have economic effects, creating jobs, providing contracting opportunities and supporting local businesses. Combined spending for major federal Native Hawaiian programs is in excess of $59 million per year. The fiscal year 2002 appropriations for the major federal programs targeting Native Hawaiians are listed below. • Native Hawn Education Act (DOE) $30,500,000 • Hawn Homelands CDBG Program (HUD) $ 9,600,000 • Native Hawn Healthcare (DHHS) - 7,000,000---- • Title III, Higher Ed., Strengthening Native Hawn Serv Inst (DOE) $ 3,250,000 • Native Hawn Vocational Education (DOL) $ 2,900,000 • Native Hawn Inst Asst Comm Program (HUD) $ 2,000,000 • Title III, Higher Ed., Agricultural Ed. (DOE) $ 1,500,000 • Native Hawn Hsg Loan Guarantee Fund (HUD) $ 1,000,000 • Native Hawn Culture and Arts Program (Interior) $ 740,000 This list is limited to appropriations for Native Hawaiian programs. Another set of federal programs provides grant funding on a competitive basis to organizations that serve Native peoples (American Indians, Alaska Natives, and Native Hawaiians). For example, the Native American Graves Protection and Repatriation Act provides $2.5 million in grants annually on a competitive basis to Native organizations (including Native Hawaiian organizations). Similarly, the U.S. Department of Treasury, Native American CDFI Program provides $3 million in competitive grants to Native OCouncil for Native Hawaiian Advancement 2003 Economic Impact of Federal Recognition Page 3 American, Alaska Native and Native Hawaiian organizations. Competitive grant programs like these provide an estimated $12,000,000 in additional federal funding to Hawaii each year.z In total, then, more than $70,000,000 in federal funding flows into Hawaii because eligible Native Hawaiian beneficiaries are part of our communities. Federal funding of $70,000,000 per year represents only the direct economic impact of federal funding for Native Hawaiians. To truly account for the full impact of these federal dollars, we must consider what economists call the "multiplier effect" -the effect of these dollars as they are spent by grantees on inputs (e.g., supplies, contracted services, labor) and then spent and re-spent by subsequent'tiers' of recipients. The aggregate impact on the overall economy, accounting for all the "ripples" of purchasing constitutes an industry's multiplier effect. Multipliers can be calculated for output (total sales), income (wages and salaries), and jobs. They are typically calculated as: "every additional dollar spent on goods in industry A, increases total production in the economy by X, total income by Y, and total jobs by Z" with X, Y, and Z being the industry's multipliers. Every five years, the Hawaii Department of Business Economic Development & Tourism (DBEDT) calculates output, income, and jobs multipliers for over 100 industries and sectors in Hawai'i.' These DBEDT multipliers were applied to figures on federal spending for Native Hawaiians to calculate their full economic impact on the Hawaii economy. For a detailed explanation of multipliers and modeling economic impacts, see Appendix A. For a listing of Hawaii multipliers by industry see Appendix B. After accounting for multiplier effects, $70 million of direct federal spending in Hawaii made possible by Native Hawaiians as an Indigenous group results in approximately $147 million in total production (sales), $69 million in wage and salary income, and more than 3,100 jobs in the Hawaii economy. Federal spending for Native Hawaiians eventually touches businesses in every major sector in the state through jobs and total production for Native and non-Native alike. Without recognition, if Plaintiffs in the Arakaki suit are successful, these economic benefits, which currently accrue to the state each year, will be lost. Avoided Cost of Eliminated State Agencies In addition to costing Hawaii federal funding, failure to secure federal recognition will also result in the dismantling of State agencies and programs established to benefit Native Hawaiians. The primary State agencies serving Native Hawaiians are the Department of Hawaiian Homelands (DHHL) and the Office of Hawaiian Affairs (OHA). To get a sense for the cost of eliminating these agencies, it helps to begin by cataloging the range and financial scale of activities they engage in. The Department of Hawaiian Homelands: • manages over 200,000 acres of land; • manages 5,500 residential leases and 1,500 non-residential leases; • fields 30,000 new applications for leases; • serves the needs of 20,000 native Hawaiian lessees and/or family occupants; • administers a client waiting list of est. 19,000; • has generated $211 million in financing (bank loans) secured by lessees; • annually generates $20 million in non-governmental revenue; • annually expends $38 million; • annually expends $24 million on new home construction and capital projects; and • annually expends $10 million for low/mod income housing development' ©Counci] for Native Hawaiian Advancement 2003 ' Economic Impact of Federal Recognition Page 4 The Office of Hawaiian Affairs: • annually generates $12 million innon-government revenue; • manages a $15 million loan portfolio supporting Native-owned small businesses; • annually serves 2,000 individuals each year and scores of organizations; and • annually expends $20 millions Unlike the federal programs considered above, State agencies do not bring new dollars into the Hawaii economy- they merely direct existing resources (lease rent, ceded lands revenue, tax revenue, and other existing funds) to specific programs benefiting Native Hawaiians: Eliminating the agencies does not create a net loss of available funds - it only means that existing resources will probably be spent in different ways. An analysis of costs, then, must focus on the economic effects of eliminating program services for Native Hawaiians offered by OHA and DHHL. These types of costs are difficult to quantify, but identifying and categorizing them can help us think about the cost of dismantling Native Hawaiian agencies. In general, loss of DHHL and OHA programs would have four potential types of economic impact: 1. Reduced economic participation by Native Hawaiians. At nearly 20% of the state's population, Native Hawaiians represent an important segment of Hawai`i's labor force, entrepreneurs, and consumer base. It is therefore critical to ensure their full and active participation in the state's economy. Due to educational, cultural and economic barriers with roots deep in their historical relationship with the U.S., Native Hawaiians often require assistance in engaging in economic activities like starting businesses, buying a home, or obtaining financing. OHA and DHHL provide these critical supports, often acting as bridges between economic institutions (banks, employers) and Native Hawauans who would otherwise be economically marginalized. For example, DHHL lessees would probably not have the $211 million in bank financing they've secured to date without the intensive and culturally appropriate technical assistance (homebuyer education, financial literacy programs, etc.) provided by OHA and DHHL. 2. Potential degradation of Native Hawaiian cultural, historic, and linguistic assets. Among the programs offered by OHA and the DHHL are programs designed to preserve and promote Native Hawaiian culture, art, language and history. These programs not only benefit the Native Hawaiian population, they also help to preserve and protect cultural assets that are key to making Hawaii a desirable place to live, work, and visit. These assets also enhance the performance of local industries, notably travel and tourism. The elimination of programs designed to protect Native Hawaiian cultural assets may lead to their degradation and concomitant declines in quality of life and visitor industry competitiveness. 3. Same level of need, fewer resources and expertise. The programs and services of OHA and DHHL work to address a variety of social needs and issues affecting Native Hawaiians including unemployment, substance abuse, education, domestic violence...the list goes on. If the agencies and programs established to serve Native Hawaiians are dismantled due to legal challenges, these needs will not disappear. The burden of addressing them will merely be shifted to other State agencies with fewer resources (recall the lost federal funding) and less expertise to address them. 4. Increased potential for civil unrest. If recognition is not secured and the Arakaki lawsuit succeeds, the effect upon Native Hawaiian individuals and families maybe dramatic. 20,000 Hawauan homesteaders may face eviction and another 19,000 eligible beneficiaries on waiting lists will likely be deprived of the benefits which many have died waiting for. The preservation and proper administration of Hawaiian Home Lands are particularly emotional issues that have ©Coimcil for Native Hawaiian Advancement 2003 Economic Impact of Federal Recognition Page 5 evoked passionate responses from the Native Hawaiian community in the past. Eliminating the trust lands completely, creating uncertainty and possible eviction for homesteaders could provoke serious civil unrest that would impose economic costs on Hawai i in addition to disastrous social consequences. Other Economic Benefits Avoided costs related to the elimination of federal funding and State programs for Native Hawaiians are the primary economic benefits related to federal recognition. However, recognition also holds potential for other types of benefit which are more difficult to predict and quantify. TWo examples of such benefits are briefly considered here. 1. Additional federal funding from underutilized sources. Many federal funding sources for Native Hawaiians exist that go un- or under-utilized each year. Estimates of untapped federal funding for Native Hawaiians range from $5 to $15 million. With better information on federal funding opportunities and training and technical assistance to increase the competitiveness of Native Hawaiian applicants, Hawai i would likely be able to access federal funding beyond the $70 million that currently flows into the state each year. Without recognition, this opportunity will disappear. 2. A new government and new business opportunities. The creation of a new Native government with expanded powers and accountability could give rise to new business opportunities. For example, confusing lines of jurisdiction and accountability (e.g., over infrastructure maintenance on Hawaiian Home Lands) and lack of certain governmental powers (e.g., bonding, taxation) have historically discouraged private investment in residential and commercial development on Hawaiian Home Lands. Creation of a Native government with clear accountability and appropriate governmental powers could facilitate development of trust lands in ways that benefit both private investors and the Native Hawaiian people. Summary & Conclusion Federal recognition for Native Hawaiians is often debated on the merits of its social and political consequences. Its economic impact, though, is rarely considered. The foregoing analysis demonstrates that this impact is substantial. Recognition would allow the state to avoid the annual loss of $70 million in direct federal funding that generates $147 million in total production, $69 million in household income, and sustains 3,100 jobs for Hawai i residents. This funding currently reaches nearly every sector of the Hawaii economy touching business transactions & employment positions for Native and non-Native alike. Federal recognition would also ensure that programs and services continue to foster full participation of Native Hawaiians. as entrepreneurs, homebuyers, and workers in the local economy. Finally, recognition may open the door to new opportunities, such as additional federal funding or new business dealings with an accountable Native government. What this Policy Brief strives to make clear is that federal recognition will have serious social, political, and economic consequences for our state. It is an issue of critical importance, not just for Native Hawaiians, but for all of Hawaii. End Notes 1 See U.S. District Court, Hawa('i District, Arakaki vs. State o(NawaPi, Complaint for Declaratory Judgment Ire: Covs[i[utionality of Office of Hawaiian Homes Commission and Related Laws) and for Injunction, March, 2002. 2 This funding varies from year to year based upon the competitiveness of Native Hawaiian applicants with other Native applicants from across the country. 3 See the latest study: DBEDT, Nawaiti Inpu40utput Study, Honolulu, 1998. 4 Nawa~ i Department of Hawaiian Nome Izvds, Annual Report, Honolulu, 2002. 5 HdWdl 10f5ce o(Hawniiav Affairs, Annual Report, Honolulu, 2002. ©Counci] for Native Hawaiian Advancement 2003 Economic Impact of Federal Recognition Page A-I Appendix A To truly account for the full impact of these federal dollars, we must consider what economists call the "multiplier effect" -the effect of these dollars as they are spent by grantees on inputs (e.g., supplies, contracted services, labor) and spent and re-spent by the next 'tier' or recipients. For example, every $1.00 of sales by the Services sector requires inputs (purchases) of $0.04 from the Transportation sector, $0.05 from the Finance and Insurance sector, $0.03 of goods from the Manufacturing sector, etc. In other words, every additional dollar we spend on Services results in an additional spending of 4 cents on transportation, 5 cents on financial services and insurance, 3 cents on manufactured goods. These sectors, in turn, must purchase inputs to meet the increase in demand from the Services sector, and the dollar continues to "ripple" through the economy. The aggregate impact on the overall economy, accounting for all the "ripples," constitutes an industry's multiplier effect. Multiplier effects can be calculated for output (total sales), income (wage and salary income), and jobs. Multipliers are typically expressed as "every dollar of additional purchases from firms in industry A results in, $X new sales, $Y new income, and Z new jobs in the total economy (all industries and sectors). Every five years, the Hawaii Department of Business Economic Development & Tourism calculates output, income, and jobs multipliers for over 100 industries and sectors in Hawaii. Because different firms and industries have different input requirements (i.e., they spend their money differently than other industries), they also have different multiplier effects. Some industries have a higher multiplier effect and therefore a higher impact on the economy (adding more to production, jobs, and personal income) than others. An additional dollar spent on Social Services results in increases of $2.35 of total sales and $1.25 of wages in the overall economy, but the same $1.00 spent on Agricultural products yields only $1.96 in total sales and $0.70 of total wage increases. Estimating the actual overall economic impact of federal funding for Native Hawaiians therefore required making assumptions about what industries federal funding is spent in. Different assumptions were applied to different federal funding programs based upon the types of agencies that were eligible recipients, and the types of activities that could be funded by the program. For example, we assumed that of the $30.5 million of Native Hawaiian Education Act funding flowing into Hawaii, 90% ($27.5 million) is spent on Educational Services and 10% ($3 million) on Social Services. Multipliers for Educational Services and Social Services were then applied to the dollar amounts to calculate the estimated overall effect of federal funding on the Hawaii economy. The spending assumptions applied to each federal program and resulting impact calculations are illustrated on the following page in the column "Industry Allocation " ©Council for Native Hawaiian Advancement 2003 ' Economic Impact of Federal Recognition Page A-2 N 1~ O vl N m m O N b` I~ O m b m O O Y'~.t. ` m N OI m m N ~ m ~ N N N n m OI ~8 < r ~ N °~"he ~ ~OP 3s O O O O O O O N O O 0 0' N 10 0 0 O N O m ~ O O N O O O ~ O m O O m m 10 b O (7 N N m O O 1~ t7 (p b V O m O N fp O N V O m 1~ Oi b m ['1 O (V O O ' O r m m N m m O b IO m 1~ N m N O NON (mV O T W { Y` M m m N r N m N m ~ of NN NN NVi IqN IqN NN N NNN N N N N 00 00 00 O n 00 OHO O b00 O OI O O d O N h O O) n N 1~ 0 O 1~ O b O m O e-vi o o n m ~n m o v M m n ,m- .r- n° ~ o w a r o 0 o ac r n o M N N O O O O N OYi m n m H ~ h N N N Y ~ ~ e- V m f V N Y NN NN IqN NN NN Nf9 N NNN N N N N r ONi (V N ~ N r ONi ~ m N N m ! t0 m m O! 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N S U N 2 m U S N 2 m~ S a 2 m S !9 V v v *1_~ py~ c o o _ v J ~ o v' i o o o m m o a m `m m o 9' E = 9' `o~ a ~ _f ;A 3vJ V ~ w~ ~ vJw ~ mU ~ 41S ~ V o! ~ > 'mww mw m¢ t 1 R.' i z z z z z z z i= i= O U' ©Council [or Native Hawaiian Advancement 2003 Economic Impact of Federal Recognition Page B-I ~(7 NN ~(O0N (O (7NNOQ N q Qa7m qOQ O O Q NQ)gm fO Olq e' ~ q qm p N In Q OI l7 N b N N ~ V1 10 N A b N (7 N N Q b N N m W C N V 1~ Q (7 O M t7 p Q b ~ ~ N'-~~ ~ N mNNN NNN N N tnM Q M T a r g Q N N N q N N f0 ~ A (7 Q m ~ ly O O Y O Q' ' q N N A d 10 A ,p O n Ib tO W O W N l7 N CJ N N f0 N 17 O C1 O O O C f O ~ ~ ~ ~ ~ ~ r r r O Q f0 ` t7 ` f ~ q 1'1 N {7 q Q q 6 N N N (V LL' H W ~ _ NmQ~-N~ qY NO1~1 mObq gNNN NfOq n Y mQy p0 gNIO b m OInN l7 ~ O b f~ m A V 10 (7 10 m 0 (p O, t7 q Q N N b N m O A N N O n l7 M O N ~ O g tl m a .-N~N~~ r '-N r'N N NI7NNC1 C1NNN N t7 Nt7 Cl ~ r T ry f f N U y (p O O N O O N n G m g N ~ Y A N O N q^' N Q N l7 M Y C! 1'l ~ fnV tYy O q W y J ~ V t 7 N N Q t 7 N r l tl N m ~ y O O g O M O ~ O I~ q LL O ~ ~ ~ ~ ~ r ~ ~ LL O p tee- r ~ ~ ~ ~ NNN.- W m F ~ 3 W (~1N nOgNMO NNt71717N 'NN ~-mn N y mgNN nlpgr q m~t7 1' m ~ N 0 (V N N N N n t 7 b A N Y t O N n n n O , O m O g O l q q q b~ m N N N O Q _d 0LL ~N NN(V NN N NNNN~NN •'N r N ~-r ~-r {rj pj y',rj n T H b OIpN~mAN 1pNNQ QAO 1p~O10 t7On Y QQ fpgm Oq~ fl N mmgq E ~ NYNNNfOQ Y mmNA ~f0m OQOr ~N~ q O ryN NN N 17N~ N ry nq O T r e-r lV NNE F f0 Y p Q O n m 17 g O N N Ih t7 V m A 0 n Q N p O b A m N O q q q q` N O n m Q q fb V O (O l7 O 10 A N m m n q q ,O m q N O VI Q fp N Y m N N N q g Y h N NANmN~10N mmQONN,p ON,On 1bN tl' m l7OfbQ 1'1 FfOOm N mgdq n t7 NfpN n b Q N l7N Q n Q V O 1~l ly~N Q O Y ~ N NNNN N N Nl7 N N N NJ a f m ~ g n o q N v m n o o v N o N b N< N q N n q g n N v m ~ q N m m m O n 1b m O O O ry A q (7 y O g N m N N 1O n N N N q OI n Q N r O h 17 m Q F b I~j O,N OOH bIV rq,O r1`N m' QOi l7ryry Q N1'l O Vf ~Oi ,n t7 CI 1A 1A I~Yl O Oiri fJ' 6 N Q N N m V) l7 P „1 N t'1 b 17 I h q N N N N l7 l7 N M ~ N T r m O n n N ~ q N m N l7 N Y b 17 A N N O S N N m N m O O) Q N ~p m O t~l N Cl L ~ tl g Q N m N Q N O O N N N N N q O q C, N n ~ y O A Q g Q q 0 O m Y m m g N Y ' b I~IAN~nN Y AhOghNN mOI~N Q l7Y (O m mmOgm Q N O Vf ,ryO' q ~ lh 17 l~l N Y t7 M 1'l N N l7 q N t7 l7 {1 N N ~ ~ N N N N N N ~ Ol 9 ~ m w w 6 N N A N m O g n N ~ N n Q N l7 N r m' N Q' y m (7 Y ~ m q N O O y n g N O q y~ NNgNm Ol7tl NO~'N Ip (7m ~-qQ mQ O tlm~n 0 OOgfb Cl qqQ m f O O Nn Oim ppgQro ~OONO<m YVNm VMY' pi q OjA H00 "t7 fV n0~0 d ' m ~ NNN~t7NNN NNNN-~Ne` NNN N~ O O p f0 N O t7 q N n l7 l7 g N m Y m O Q N m O r O N A m h N q fp n N ^ q n N Q Q g1OAfOAmAn Nn(OmQAm QIbNO qOq n m qm mmm gmOb q QmQ m b 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O O O O O H O O O O O O O 0 0 0 O O O O O w n 6 O H Q ~ gNO17bNNO mtl~NO~N ~Ntln 1~lnN m 1'1 qm nf0 n thgO V q(7AO Z E N Q N Q O N N N q~ Y Y t7 N Y t7 17 N b N m Y N N NNN N m N A fb m Q 17 N q IL Q • 000000000 00000000 0000 000 O O OOO OO OO OOOC OO OOOOO UL F6 'fOOAmmON l7N^OqN' gNI+IN ml7' Ip m ~NOOq Ymm' ' OAOQ m mO~N O NN QNN QtONN ON q ~O O N Nqn m _v O N N N r' N N N N N N N N ~ N N ~ ~ N N N N NNN N N N N N N N N ~ n T b m N M m N Y q N NON N Q m O' 10 q N ` n n m g m Q g m n n g O m N C'1 N Cl N N O (7 f~ 1 f 0 N N n N N O f 7 O N N q N N N N N f 7 N ~ N N N m Q n m ~ ~ Q T r ~ ~ ~ H N C u o Y ~ u ~ U V b C N ~ ^y m 2, 2 m u ~ ~ 0 0 ~ m b~ m_ ~ v' LL U b J V N jp C L' 0 C Or c ? c ~ LLV ooE C7 o a O~ C O O ~ Ot m U p 2 O O m~ N O OI O U Z~ ~ ~3 d~ c% t Z o e c U ~ c tt c m LL a' 'oo a' dN y m • '"=Z `o ci ~co_ 2 ooa o z ~o,o C O q> U O ~ O LL d 9 O W U N N C U O O m S d and W N C V 6 LLLL O ~ CN fL T_`ry ~ C Y j m N O 9 y > n ~ n m LL a V m~ d m °c ° m m ~ E g 2 b m~ m~ U D_ m m ~ ~ o n a m' € c a p, v~o y o n n m b V J E m n C U c v_ 7 m ~ r v 5nLL t mmwa t, .`7,m o ~ LL~~o~ `o F nm 4 ~ m`mZ m° y u LLZ,m -Jam mEinw ~ ~ U Z bn-U UUyO N nUa~~ p rn o m m _`b i m Z r~ E ~ E m ~ !3 a- C va= m a ° `m c Z m `w m b C L Op, vVl L p~ C _Z m L_ ' C C L OI C _ (/J > H d O U V' Q U d U 1~ O Q Q U LL LL Q J Q Q ~y f/1 ~ Z S m ~ O~ Z U R O N U ©Council for Native Hawaiian Advancement 2003 ' Economic Impact of Federal Recognition Page B-2 N M N g M O N ~NhhM qA Q ~h g b M 0 b q q q b N q N N h•U q CI ~O 4 m N q W O ry N m1A tl h[O~Nm b m qbO N ~N M b 4 O b~q N M N N tl N N Nb m N m 4 N N N V M M e' ~ r IV 1+1 N 17 r N ry N N N " N N M N e' N N M N N (V V] N V N~ Cl 6 a ~ 0 q fpM 4q Nt'J 1` Ooh 44 ON4O hrp mom- N O tl NM bp~rm M NM MI C Q h Ol 'V 4 tl V b N N N 1` m A 1V M O N M V N b d N M ~ N q M N b Ifl O m < F V .M N'tq~ryN N N ~ tee- ~ N i'irv m ~ rc r W Q M N M~ V a Q ~ O m g N N~ M N P N M ' O ~ tl m O V M 4 W N q tl O = (Om00bh 10'~gOm mgh0 p~ N h170 q' gONOM NQNq Y) J ' Y ' M N O N M N M ~ 1' 1 N 17 ~ N r N N ~ f V A N N 17 ~ ~ N M N N C l O V J M N N 7 z. T f _n r F m U m h m m 0 N fp ' O N O Ip O tl 4 0 1O 10 N o m tl~ q 4 W n N g b q m b q W - fp O n M M m N N N N O 1~ N N M O N~ M N N M q N ~ N m, OI N O N M LL m a fV (V N ~ N ~ N ~ ~ ~ ~ ~ e- ~ ~ r ~ ~ ~ ~ ~ r r r ~ ~ r C! ~ fV W n F u 3 W ° i 4 N' V N N q ~ A tl M 0 1` N g O ~ m q O M B O tl tl O N b h O 4 t 7 N M Y f b d' - MMm 4 rv gFgFOOq OANOOAF q qf'l qhO F1~hhO hN(p 10 N O 0 m ~ m M M N N M M M r ~ ~ N CI ~ N ~ Y J N ~ r V i V 1 V ~ N ~ N ~ l V N l7 { V N N O T m M O IO M h m~ F m tl tl tl tl m N' p0 Y N _M ' N q tt N N^ N h N p h 01 M m 10 E - NNtlONO '•-'t•'1~'~~t ~M~' 17 NI°V q" ' O'~'~N ffOMh O M ° On [V N ~ r N CI lV r N r f 0 f0 b h g N N M rv O N O O N ~ tl ~ M O O (O M M O n q N ' 4 m N tl h O O 4 0 f0 m M MI O N tl m P CI M Y Y Y O m 4 W MI A MI A N p Y; M M m q M m hm ~°a U+M1 ANNM fly' ~IVO'm0 O IA O1 C1 ~ ~O HNVN` DIN O~ fV n NNNN ~ N NNN~NN CIN M N MNM NM Nom- N~ N M n F q ONOO"tl V q~gtl tllpmh VI A O' Ip QtON YYIN mN<gq ONTO Im < p O g h N ~ ID tl N tl b tl O tl r m Q F O N A N O+ rv O YI O O 4 O g M 4 N Yl N O r m ~Di'fga7 lp O~'1~~`OY'DI'ml'OlV fV NOIV ~'~17 ON~f~l~q YIV~m~ V O 6 N N r N NNN ~ N N T r _ q1°m {O (OA NN 1~OhM M ~M1~Myy A ONq mO Nh. f°N mm ~ N b m m N N m N A h~ r m M N 10 IG ~ O M N Y q O m Y O M q V 1` 1D g 4 m h M O y m gm10M'Vq O~OO~~Yt-~'m n~'tl10 N 1~CN tl'm " M~ h4~Oq N N tl n N N rv~ N NNN N N N ~w ~p r Y W m J m ID ~ O 0 y' p ' O N g q m O N M O A o N CI ~ O N q >J F O m 1~ M m V 4 N h N 6 ~ - NaONhN 4 mqN tl tl oN iD Oq Ar mYI m OOq m iV m0 NNO~4 N b J m 6 0 l7 ~ uJ 1` O M ~ q~ ~ I~ m1 ` O' I~ O IA m~ W' O m ~O I~ O" I+ m N I~ W V N g N IV ~ r r a ~ _ ~ 4 = ~ tl t7 M 4 A A tl m 10 Q F tl O Y~ A MI N b m b m m m O A W I(1 1D m N p M N b Y b m i0 CID I~ 4 4 N O YI m m 00000000 OOpOCO0O0000OOG0 O 000 OO OO OOOOG OOOG O O W n T Q 5 r J 4 ~ t7 Nmq m tlONqq Y q tlMmN m M4 y AO I+mAtlM 4 fNO YI m Z E - t7MM4NMM MMQNO~ ON m QMMOY M tltD N PQO MMYf t7 V N V N Y N LL D d 0 0 0 0 0 0 0 o O o 00 0 0 0 0 C 0 0 o C o 0 0 0 0 0 o G 0 0 0 O O O O O 00 O O ~ T r q ID ' ~ M' M N N tl O ~ g M 1n O V ID ~ N h ` Y Y A q O 'Y m N ~ ~ f'l 0 r 0 OIO qO) f~IM1mN NOYI O tltlf~F1~ A MN NON (O b10 l~q tlr Mq _d m r N N fV r fV ~ ~ r CI N ~ ~ ~`I ~ ~ e- r r N N N fV IV tV " ~ N" " ~ tV ~ N N O T ~ ~ g O b O O g m ` ' 1~~ M N O W N" M q I~ m N 4 n tl N O F m j - ID f0 fD ' ' V N N Y ' " ' t- O 1 V ' O ` 1 V ` ' 1 V C1 Y] V ' Y ' ` ^ m M ^ 1D h Yf V M 6 O r e- e- r j O f N U a 0 v „ n c m u ~ 3 ` y o c a o n ~ o n ~ u v m ~ ~ W c u E a u o n ° ~ C ° w r n " u ~ j u K y v U a u° m o m n m U ~ 7 > > o n' g n c o y ~ c E n a t • m v m 2 t. z o m m a` : o ff °m w a` rv m m° o ~ a c o y O o v a oa -v~o. aE c a n o. °n v~ C7 'mr c m q o .y Q ~ rv m Oy,maac p m qQW ~ ? cm m Cjtl n Q~ c m f H n c 3 v= o, e m a W- u a c u z 'n r~ o w c a m 2 o c ~E ° m m a` , w 6 S~ a~~ ~ ~ m a C D m ~ q 4 m ~ ~ ~ Tmi m o c c °e A a 9 m c n° a m~ U E t n c n.. ~ E ~ ~ y U K ~ 9 v ~ d o y n w m i? a m E w E m Z'Y rt Q ~ d °w A Y c c o c ~ 9~ M r m a o Y m LL etl `m ~ w W u O m U Z 4 °c o f LL LL 6 r i a t Z m U O 'v ° a N ~ ~ V Y L i m o n E n~ m° a c E c u c u z x `o ~ d r e -9° m E u N = ~ O 4 ~ m m S o a>> m E t 'u m w _n ¢ S o m m y m 5 o m n m= ~ x ? 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K N n LL E L- E f H E J ~i Q f F U K O V W U' ~ O r 3 ©Council for Native Hawaiian Advancement 2003 Economic Impact of Federal Recognition page B-3 A N O N N N q N q yN O q N N Ot7 ~pg N q A N ~ q NPAN N P NlD A PA OrO Q g Q N r n P q Q W tl N 1` lh M N N N N O A N O P O P N A N (0 N Ip N 10 A N A m ~ N ~ r r e- r N N iV N N T ~ ~ N ~ N r- N ~ N ~ ~ f- ~ ~ r a F N ' Qn ONF No ' ~ M1m q N O1DO N O gN000 q1p ~ N(O ~h n N(7~ O ~ tlN q 101 N C1 000000 NN~NOryO~ Q N O O N N P ry O e- N O N F 0 ~ ~ ~ ~ ~ r e- r r r t- W ~ J p F O O/~N N NfI O g g Q f O O 0N~ Ip N N Q N W P Q gIhA q J q{7N N 0 Np F O L f O A N V p tl N 10 tl ~ tl A q N P N P P N P P q (O t 7 N t 7 N g q O t O A g N M A N N .A n r N~'-~~ ~e~ NMIV rv N N~.-N ~N~ CI e- ~ ry f H N V N g tl A O N rv~ N ' V 1 N N q q 1't ~ 0 0 N N l7 l7 (7 P P O O N (p A N A A N C I m l LL q.J - OM' OWN O tlNtl Q N N 000000 q ~17ON ryry {7NO ~ NOS F V W ~ONNtltlA~ tl N V Nq r 1O M W ryN P A A'NNNNAN~ {7qN t'~N gl7AN ~ 0 1'l O IG N N q f0 q N O Q N 1+1 N Ip NNN N N A W Ip A f0 (O q O f0 A t0 W O fp q p d T r tV lV ~ ~ 1V ~ ~ N 1`I H Y tV ~ ~ ~ N ~ ~ r CI CI ~ ~ ~ N 0 ~ J ~ p E - NMM O O NIOjO N MIlO n q q O~-0 0 0 0 N p ~NO~~N r OjyO~NNCI~N q A ~ q~ q q A tl tl N 0 A H N N q r (7 ~ O N ~ M Q N A N A Q O N P N rv g g rv m1tl N N a n N A Q P tl A g W Q A N g N N g P N N N O P g A ry P N p Y ~ q f'1 N O Q ~ n N O O YI Q Q N O OO A P tl N fp p q fp A y N N N f0 N l~l N T CC11 N A O N Y N O q N rv r rv q A fp tp Im O A l7 ly N N Ip N f0 q Q N q t7 t7 N Q P g P O ~ `0 O rv g N~ tl Q N 1~1 A q r A (p N Q 1. 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Q N P N N N N N P 17 N fp Q ~ N f' mm~~ W m 0~ 6 N q Y GOON r gNNyy pl AAAQq NNAq W N17 tp' CJN gIpN ONgN q~ ~ 0 O (m ml ry O N A O fl N N tl N N tp N A g A q g A M O A O N Q f0 A N N ml 0 A F m m V W Yf miNOOf0 1'1 ~q'ul O f1 gml~thAN ^^IAOO~ OtG W r.A-~' Cj ~N(~lO d j q T N N rv rv N rv N N N N M N N M N N ~ t7 ~ ~ r t^ NNN M a ~ 3 F Z q V 10 Nf1Yq m tltl W 10 N O OAA~tlN ' O1(1q lp fp 171pN NgON61gNr a Q fm tl O g q O q W N g q y A A f7 ONO l7 N tp f~ g q q O Im N g W q O q e- O ~ mp 000000000 O OOO OO O C ~O r'O ~O~'O~ OOO OO OO~O~' W n D ~ H Q ~ N N A O rv N A O tl N Q g r O tl O P A r f0 t7 (m N q l7 A tl q q q CI Q N q l7 A Z E ~ O N In Ip tl N N tl N Q tl N M N P g A W N q N A N A N Q! f0 b N Ip Q q N fm tl A N A fp LL O n OOOOOCOC O 0000 O O 00000000 00000000 OO O0 0000OOOO0OO F g N m q N ~ q N r ' N Q N ' q O O O N l7 N O g r O N q Y O t7 N'' g N O N n 17 m~ 01 CI q OI O 1O O 17 N N O l7 rv N (7 q Q q O N q W q N N ry Ci 0 0 N f V ~ ~ N CI r (V N N N r N l V N N CI N N I V N CI CI r NNNN ry ~ ry CI N Cl N N p p r r E ('1 1'1 N q ~ N Q tl N O N Q! O' A Ip N O N 17 A fp fm A V rv N h ~ O N~ ~ 17 P O ml rv Q Q O O O O O Q O N N N N N 1~l N N N N q t7 U F C O M q ~ C N m O 0~ m y ~ m ~ p 0[ V d L ~ ~ i! ^ m Z ~ C ^ O^ 1- R' O N Oi q O d W .O W ~ N 'O' = U 0 Q a m m N U ~ n ~ O N E O DN E m[y\O N V L E m N m m OC m mym a Z`o q. m w m m o E m ~ ~ m a a -°v W c m w o LL y o J a v o U~ o a ° u m t mm m> o w C m D d 0 E 9 E Y W C m N C 0 U C N LL Z^ 0 (O Z _V C 0 N 0 O Y m C V O ` E C C. m m^ m m V U N U^ N y J y m ^ O L' m m ^ m S W O- P [ N V C a A Z^ n V V C N Z V C O L 0 U U y1 D Q y m_ ~ m 0~ 6 6 M p E ~ o< a QoQ [ o ~ m o w Z rn~ cm ~n a~ 2 ^ m m 2 E N m > a^^ m^ c A- C c °c ^ m m: m L m 2 c y c m~ c Z e m 6..m. N n 4 N C c i f ~ m w m ~ a U a m voi a N o ~ m m c N .10. a m m o ~ i m S o@ m ~ q _y,c w q n a me y y m m e m E u N~ n m m° ~ m a ~ E C m N q. N E C c `w z m Z=>.'m o_ c a E >.~L~m m my!±K c m~ O C V m V O ` n a Y j V O Y O: p ~ p'C C O L Z m J 0 0 0 6~ W m 0^ m ~ O O Y^ C y r > O Z J p E U _t ^ u u 6 N y h E m W m U' LL Q Q LL~ ~ 0 q ~ R' LL S w p m li ~ 6 Q LL In W W U N O m Q Q W E~ H f ~C ~ ©Council for Native Hawauan Advancement 2003 Economic Impact of Federal Recognition Page B-4 gomm n N QQ N qNn nn m ~ cfoM ~mQOm - ~ h N m 0 N M N q N m m m N m Q r N m N N N p N ~N'-N Nr r N e' MN~-~-~m~N ' 6 a H ry g m n n N n M N O m O ~ m N m m O Q O O O m 0 ~ p - ~ Q ~ N N O O H O M a7 N ry f N O g N O O O n O? F ,p r r r r r r r r ~ ~ ~ ~ Cl ~ ~ W J g n ~ h 0 O q q N n N m N m N o N M O g ry q m m q N d - O 1~ N m q N M n Q n 4 O O n V h m m Q Q Q N ~ ~ O O N~-N~ N~ r r NryN~IV r N"~~~N~N o. m ~ U 41 n g N m N M M N m N M N M ~ Q N n n N m O O O g O m ~ M ~ N N O O O O N M N M ~ N O m ~ 0 0 0 0 0 ("1 - ~ n m Q N n m O h a ' M M N m M m q ry N N N N M m m n m g m m m N m m m m m g m m m n n n N N N N M O ~ _m 'p ~ ~ N r N~~~-~ V ~N d T n p ^ Yl ~ ~ N O Q N O m O ~ m ~ 0 ^ g N O O O q q n E - N M N i V O O H O Q N N N ~ N n O O O 1~ m M ' Vu n ~-re- e-~ e- r ~ ~ ~ r ~~~-~~-NO~- C F Q q N N N r Y Q ~ ~ M n N Y m O ~ N m m N n m O Y q t7 q m N n u7 Y m N g m Y q O m m 4 m m Q n p ~-MmmV NY mhM q Nmm~O r m NmgON ~~-N m p M Q N M M M N m M m M M M M YY m Q N C! M O Q O M a F i N q ~ g M N q q 0 ~ m R M m N N m M ~ n m O n m M o - q~N.n,M Nn. oN m Nq o mo a ~ M.ngoo.-mM f. p f 0 Ohm fl ' Cj r 1 M1 b Ol l7 m 0 H N V V J N 1 n OI Q O N ~ M N N O n N Q N N N M N Y M N N N N m N r m ryNOOq ma mvm NNNgO N QmNMnm m ~ ~ M M N M n q N n O m N m Q O M N g M m N M N M u ' • N CIMOn NOI N(7 OI Y1 NIAmn ~ mb N OHfOF ryln r't0 m 6 N M N M ry N M m M N M N N N M N O M N (7 M M Q m N ~ p f _W m J V1 O n m q q O n n n M N^ q O N n n m O n m O n O q C 6 b m O r n q n n n N n m N~ m M N Cl g O O h m O f e Q ~ Q ~ n Y O C! O 1G 1f1 ` N rp O n YI N M O IA N Oi CI O m d J_ p 1 N N Y` N n N Q N N ~ M N N N N N n p f. a ~ 3 Q O _ OQq~q or nmN n MOnNm N m mgnoNmm~ a O m g q H m N N N q O O g N O N O n ~ O N M M O m ~ p tl ~~'OCO ~ O ~'~0~ r O~~-~'-e-OC W n 6 ~ ~ F J ¢ ~ M m g O N N n at M V m m Q N O N m O m ~ m n ~ p y $ • n m N m m m m m m m m m m m m n m m N n n n m g O 1(1 LL ~ 0. 00000 OOO 000 O 00000 O OO OOOOCO00 f m Y N N N O r m M N N 'af g N M N n ~ N q ~ O O g m - N M N ~ N P m N Q M Y N N M N 1'1 M M O N n O O N p N N N N H I V t V N N N N ( V N N N t V t V N [ V H C! t V N l V ~ N D > ~ ~ N n ~ g N ' n ~ M n M h m Q N m O N V n 0 0 0 m 0 ~ j N M 4 N M O ~ N ~ N (y N M N N N m N O O O m O M O p r r r t. r r e- r e- ~ ~ ~ ~ ~ O F ^ . m V p u ~ N Q • ~ O! Z N r U V V C .Z N6q~"m W m v • m m~ o+a E 'c ~n c m C p ~ m V p p ~ N L m~ V m V W_ • h~ = V Z q i C CI E ~c~ 2` O v v m p o ff m~ tlm O c~ m> w m m e 2`- -m O a m U u. ro U Y n ro¢~• Cp u O j m~ 0 > y Z ~ V- Z z O1rnv0 c Z m o o~ C m m m v °1 m o a.w m ~ '`c5 Et u W aU'~Z9E ~ n q~~ m N m i0 m • • u `mp m V c c ~ E m N L~ w O m y v> q `ry c m N 2 ~ W J O~ > _o`.~_ac Au as u cv~v. `p ~ mm`vpdE_F-`: 2 0~ o u u v 'c v o n c v ~ t W °m a °v • m c> O Z 2 O T J W U R' N E W¢~ K W O N m LL LL LL fn ~ `1 ¢ ©Counci] for Native Hawauan Advancement 2003 i All rights reserved. O Council for Native Hawaiian Advancement, 2003. No part of this document is to be reproduced or adapted to other works without written permission from the Council for Native Hawaiian Advancement except in the case of brief quotations embodied in articles and reviews. Council for Native Hawaiian Advancement 33 South King Street, Suite SI3 Honolulu, Hawaii 96813 T.• 808.521.5011 F.• 808.521.4111 www. hawaiiancouncil. org Lawsuits 8~ Le islation g PowerPoint Presentation • • State Council of Hawaiian Homestead Associations Hui Kako'o'Aina Ho'opulapula Tony Sang, Chairman Blossom Feiteira, President 905 Umi Street, Suite 103 P.O. Box 37958 Honolulu, Hawaii 96819 Honolulu, Hawaii 96837 www.schha.org www.hawaiianlands.com All rights reserved. ©Council for Native Hawaiian Advancement, 2003. No part of this document is to be reproduced or adapted to other works without written permission from the Council for Native Hawaiian Advancement except in the case of brief quotations embodied in articles and reviews. ' I Native Hawaiian Federal Recognition I-Iuma~ Services & l;conomic Development Committee Hawaii County Council October 7, 2003 - - - - i-' _ - _ - - - Federal Recognition -What is it? ¦ First - It already exists in our country! ¦ A federal policy that: ? Native Peoples have a right to self-governance ? Our Country has a trust responsibility to them ¦ Result? ? A Native status beyond a racial minority status ? A process by which U.S. "sees" a Native government z Essentially, Recognition of Dual Citizenship sso+ Native Nations United States ofAmerica s r - - - - Federal Recognition -How Achieved? ¦ Federal Legislation ? Passed by the Congress & the President ¦ Administrative Process ? Delegated process by the federal government 4 Federal Govemment Native Govemments State Governments Trusts Profits corps ¦ American Indians and Alaska Natives Today ¦ Federal Recognition of Trust & Self Governance 5 _ - f Federal Govemment State Government Trusts Profits Corps OHA DHHL ¦ Native Hawauans'I'oday ¦ Federal Recognition of Trust Responsibility 6 Federal Govemment Native Govemment State Govemment Trusts FNOfts Corys pHA DHHL ¦ Federal Recognition adds Self Governance + - - Federal Recognition -As It Exists Today ¦ A Tool -Native Solutions for Native Challenges ¦ Does not replace citizenship in the U.S. it is in addition to that citizenship ¦ Voluntary enrollment by individual Natives -It's an individual choice ¦ Does not guarantee Good government -only Self-governance g - - - _-r Economic Impact to Hawaii A Limited Viezv ¦ New Federal Dollars into the State ¦ Based Largely on Native Status of Hawaiians ¦ Economic Development & Social Resources 9 - - - - i ~ - I _ - - - - - _ _ . Annual Federal Appropriations to Hawaii Meeting the Trust Kerponsibility ¦ FY 2002 - $59 million in new money entered the state ¦ Another $11 million competitive programs ? $9.G million Affordable Housing ? $740k Culture & Arts ? $30.5 million Education ? $2.0 million Community Development ? $7.0 million }-lealth Care ? $1.0 million Housing Loan Guarantees ? $SOOk Small Business Loan Capital ? $2.9 million Vocational Education ? $3.250 million Strengthening Community Colleges -Academics ? $L5 million Strengthening Community Colleges -Agriculture to What Does $70 Million Mean to Hawaii? ¦ Program Impact ? Primarily to low & moderate income Native Hawaiians ? Supplements State and Private Resources ? Loss of these dollars does not make the need go away, it only shifts the burden ¦ Economic Impact to all residents of Hawaii ? Generates $147 million in total production -annually ? Creates 3,100 jobs ? Produces $69 million in personal income -annually ? All Locally Controlled (Hawaii entities) 1 - - Issue Becomes Urgent by a Lawsuit Arakaki vs Lingle ¦ Who Filed Suit? ? 16 individuals in March 2002 ¦ Earl Arakaki, Evelyn Arakaki, Edward Bugazin, Sandra Burgess, Patricia Carroll, Robett Chapman, Brian Clarke, Michael Garda, Roger Grantham, Toby Kravet, James Kuroiwa Jr, Frances Nichols, Donna Scaff, Jack Scaff, Allen Teshima, Thurston Twigg-Smith ¦ Against Whom? ? State of Hawaii, Governor & Cabinet, DHHL & OHA ¦ Why? ? To take down Hawaiian programs ~z ~ r - - - - _ f' - - - _ Lawsuit Main Arguments ¦ Plaintiffs Native Hawaiians are onl racial minorities with no special trust status like other Native Peoples in U.S. ¦ Defendants The U.S. Government has established that Native Hawaiians are Native peoples with a special relationship to the U.S. government-Hawaiians are not only a racial minority t3 Lawsuit -Status ¦ Filed in U.S. District Court -Hawaii in March 2002 ¦ Will likely be appealed to the U.S. Supreme Court U.S. DISTRICT U.S. CIRCUIT U.S. SUPREME COURT COURT COURT Judge Mollway (HI) 9" Circuit (CA) (DC) Prelnal Appeal Appeal (2002 present) Deasion Decision Final (20040 (2005?) Dedslon (2006?) 74 t - - - The Legislation -Federal Recognition ¦ Sponsored by entire Hawaii Delegation ? First in the year 2000 ? Most recently in January 2003 (S6344 & HR665) ¦ Co-Sponsored by other Democrats & Republicans 15 The Akaka Bill -What's In It? ¦ Reaffirms that Native Hawaiians are Native ¦ Establishes an Office & an Inter-agency Group within the Federal Government to deal with Hawaiian issues ¦ Appoints the Secretary of Interior, to represent the Federal Government ¦ Establishes a process by which the Secretary may recognize or officially "see" a Native government ¦ Requires federal government, state government and new Native government to be at the table to negotiate transfer of assets 16 Legislation -Who Supports ? Hawaii s Congressional Delegation ? DHHL & OHA, Various Hawaiian Agencies an Organizations ? The Governor -testified in DC ? The Legislature - 2 resolutions o American Indians & Alaska Natives - 5 resolutions ? Japanese American Citizens League - 2 resolutions ? Hawaii Residents- including Native Hawaiians ¦ Public Hearing in Hawaii in 8/00 - 11 to 1 in favor ¦ Various Surveys & Polls ? Previous Administration (DOI & DOJ Report) Why the Support? A variety of reasons ¦ Economic Impact to Hawaii - to every resident ¦ Protect Hawaiian Programs & Culture ¦ A step toward reconciling the past for the future ¦ Brings Parity in U.S. policy with other Native peoples ¦ Brings clear representation for Native Hawaiians ¦ Clear entity for all on Native Hawaiian issues ,e Who is Opposed? ¦ National anti-affirmation action groups -see legislation as race-based, rather than Native status ¦ Arakaki Lawsuit Plaintiffs ¦ Some Independence Groups -see legislation as a barrier to separating Hawaii from U.S. ? (consists of some Non-Hawaiians and some Hawaiians) 79 As of June 2003 I-Ylhere the Bill i.r Noav ¦ 3 Bodies Must Approve -The Senate, House, Administration Full Senate Vote Full House Vote president S. 344 H.R. 665 Committee -Indian Affairs Committee -Resources Federal Departments Introduced Senate Introduced House S. 344 H.R. 665 20 How Do They Relate? ¦ The Lawsuit asserts that Hawaiian programs are race- based -that Hawaiians are only minorities ¦ The Legislation reaffirms Native Status & creates process for U.S. to see Native government -that Hawaiians are not only a minority ¦ Although on different tracks -one touches the other ? May 8, 2002 Court Order footnote on lawsuit ¦ "The court is well aware that legislation is pending before Congress that, if passed, may well affect any consideration of the merits. Congress might recognize Hawaiians and/or native Hawaiians as an 'Indian Tribe'." z~ What Can We Expect Going Forward? ¦ Play is for keeps - It's a Foot Race ¦ Both issues, have very real impacts to: ? Native Hawaiians ? All Hawaii Residents ? Economy.& Business ? State & County Governments zz - - - Federal Recognition It's Not just a Native Hawaiian Issue It's a Hawaii Issue 23 Federal Govemment Native Govemment State Govemment Trusts Profits Corps OHA DHHL ¦ Native Hawaiian Federal Recognition 24 in parrnership with the Association of Hawaiian Civic Ciubs the 1 Ii • Ii • is made possible with the support of the Department of Hawaiian Home Lands Produced by the Council for Native Hawaiian Advancement 33 South King Street, Suite 513, Honolulu, Hawaii 96813 www. hawaiiancouncil. o rg Council for , , Native Hawaiian Advancement Promoting the Advancement of Native Hawaiians through Empowerment and Informational Initiatiaes lp'~p~A~je~p~ ~~It fpM1N' x s- 4 ~__J ~ e~ lv~ y ~ ~ ~_J~ YNp ~ d's Firm" h 6? ii Native Hawaiian I Ke Kamaehu ~O°/eren~e i ~ Sirengih Thr'ouo ka lakahi s~, io.~ 9~Unity '9 ~i~~~~~ a , ~O'p1(~diE. J _ ~ ~ ~ ~z ` YEAR IN REVIEW October 2002 to September 2003 RESIDENT'S MESSAGE oha CNHA Members, Sponsors and Partners, are pleased to present the 2002-2003 Year In Review report to our members, ansors and partners. It has truly been a fantastic year of outreach and service to r communities! In these pages, we hope you will find inspiration, validation and knowledge that the work we are dedicated to has made meaningful change in the gad field of community development in communities all around Hawaii and the uth Pacific. e 2002-2003 year has been exciting and progressive. We have expanded our ` oducts and programs, and to meet the high standards of CNHA, we have put ;ether a talented team of Hawaiians to deliver them to our communities. You 11 find products and services that empower organizations -providing them th valuable assistance in obtaining resources for their programs, public policy ormation to increase knowledge and participation and opportunities to convene to rher define solutions to meet the challenges in our communities. special note is the Community Builder Program, which has provided outstanding lining and technical assistance to over 200 nonprofit organizations serving Native mmunities. Community development organizations have benefited from solid finical assistance in programs like the Administration for Native Americans ~ , NA), HUD's Community Development Block Grant and other programming. `~'9.w npowerment and the sharing of important information has enabled community ~ velopment entities access to valuable resources to implement innovative and `ective services in primarily low-income communities. f= ~ JHA has doubled its membership over the previous year, with over 80 members. milestone for CNHA during the year includes the planned transition from afive- rson charter member Board of Directors to a 15-person Board with seats designated various Native Iiawaiian serving member organizations. Nine months into our r ogram year, as designed by the Charter Members, we took the next step in board wernance by conducting our first board election whereby the voting members of JHA elected four seats with 3-year terms. e'd like to thank each of our member organizations, the various sponsors of our ograms and all of our partners that have made the 2002-2003 year a great success, .t only in our own growth, but in the delivery of service to Native Hawaiian mmunities. alama ono, ~br uanani Danner ' ~O & President TABLE OF CONTENTS Mission 2 Founders of CNHA 2 Membership 3 Organizational Members Supporting Members & Partners Board of Directors y Staff Biographies ~ Community Development Programs & Accomplishments 9 Community Builder Program Information & Policy Program Event Coordination Programs & Accomplishments 14 Annual Native Hawaiian Conference Native Hawaiian Forum & Roundtable with Governor Lingle National Forum on Democracy & Self Determination - Hawaiian Homestead Technology, Ina 16 - ' ~ Statement of Financial Condition 16 CNHA Financial Statements Page 1 %~~~~~D~i`~ ~e Council for Native Hawaiian Advancement (CNHA) is anon-profit dedicated providing support services to agencies and organizations that focus or deliver ograms in Native communities. Its primary expertise is in community development _hnical assistance & training, public policy initiatives and the coordination of events d conferences focused on Native community development issues. As a member- sed non-profit, we unite the many Native Hawaiian organizations working in our mmunities and create greater levels of collaboration among them. Our Mission To Promote the Advancement of Native Hawaiians through Empowerment and ~~a formationallnitiatives. ~ t ..aiz;~.,. VHA began in April 2001 with six Chartering & Founding Members who served as e initial Board of Directors as follows: ~ c: Raynard Soon Lulani Arquette Mahealani Kamau'u Hardy Spoehr Melody McKenzie Robin Puanani Danner ~ r. iese individuals came together to create CNHA, its mission and its focus on pacity-building support, unity and advocacy for and among Native Hawaiian ~mmunity development organizations. iw MEMBERSHIP CNHA currently has over SO members falling into one of three categories as follows: Category A: Non-Profit Organizations, Trusts and Agencies focused on Native Hawaiian issues Category B: Chartering Individuals Category C: Supporting Organizations, Businesses & Individuals Membership dues are established annually by the Board of Directors. Dues are set at a flat rate for Supporting Members and are set at a sliding scale for Voting Members. CNHA members elect and are eligible to serve on the CNHA Board of Directors each year, and receive discounts for various CNHA products and services. The members of CNHA are its greatest strength and its primary client base. The membership list is as diverse as the various elements of community development, with members ranging from large trust organizations to small community based entities, some working on health or education and others in the realm of cultural preservation and affordable housing. All of the programs and services of CNHA are directed at the needs of its membership and community development practitioners. Page 3 hahui o Na Kauka hahui Siwila Hawaii o Kapolei LU LIKE, Inc. aahola Hawaiian Homes Association apartment of Hawaiian Home Lands lith Kanaka'ole Foundation aola, Inc. ale Ku'ai Cooperative awaiian Community Assets, Inc. awaiian Community Development Board ui 'Ai Pohaku, Inc. ui Kako'o 'Aina Ho'opulapula io'ulaokalani Coalition, Inc. le I Mua Group amehameha Schools Alaula a Lei Na'anao Alliance a Pua a Ke Ali i Pauahi, Inc. a Pualei o Likolehua 5nakuli Housing Corporation yay r alive Hawaiian Bar Association alive Hawaiian Diabetes Coalition alive Hawaiian Education Association h9, alive Hawaiian Education Council alive Hawaiian Economic Alliance alive Hawaiian Legal Corporation apakolea Community Development Corporation tY, apa Ola Lokahi ueen Lili'uokalani Trust utu & Me/Partners in Development niversity of Hawaii at Manoa, Kamakakuokalani Center for Hawaiian Studies -ate Council of Hawaiian Homestead Associations lai'anae Valley Homestead Community Association ~ fi_ SUPPORTING MEMBERS & PARTNERS Akimeka, Inc. Alaska Federation of Natives Alexander & Baldwin Foundation American Savings Bank Bank of Hawaii Bering Sea Eccotech, Inc. Bishop Museum Cascade Consulting Group, Inc. Federal Home Loan Bank Seattle First Alaskans Foundation First Hawaiian Bank Hawaii Community Loan Fund Hawaii County Economic Opportunity Council Hawaii National Bank Hawaiian Homestead Technology, Inc. Homeownership Center Hawaii Honua Group Kealakehe Ahupua'a 2020, Inc. LGB & Associates McCorriston, Miller, Mukai, MacKinnon LLP Molokai Community Services Council National Coalition for Asian Pacific American Community Development National Congress of American Indians Office of Hawaiian Affairs OhanaNet Princess Line Cruises Queen's Health Systems R.M. Towill Corporation Rural Community Assistance Corporation Sandwich Isles Communications, Inc. Sheraton Waikiki /The Royal Hawaiian Hotel SMS Research & Marketing Services, Inc. State of Hawaii CBED Division of DBEDT Ukpeagvik Inupiat Corporation *Iedividunl Mem6rrs are available xpon request Page 5 n) ~ ff U) ~i` f ii ~l f 0) r' ~i- - Ii 'J: olC~~:i~JIP`.I~~J ~-~~L1' I~J~11. `~L ~~~1)~LJ\>i~, a 2002, CNHA installed a full operating Board of Directors with up to 15 seats. To ccomplish staggered terms, 1 /3"' of the board of director seats will expire in 2003, nothcr 1 /3"' in 2004 and the final 1 /3`d in 2005. As Charter Member seats expire, hey will be filled by Voting and Supporting Members. The 2002-2003 Board of . „ , :y )irectors are: v~' Organization Representative ALU LIKE, Inc. Stephen Morse Department of Hawaiian Home Lands Ben Henderson Hui Kako'o 'Aina Ho'opulapula Blossom Feiteira The I Mua Group Rod Ferreira Kamehameha Schools Colleen Wong Ke Alaula Puni Kekauoha Native Hawaiian Economic Alliance Austin Nakoa n w r= Native Hawaiian Education Council Peter Hanohano Molokai Community Services Council Karen Holt x Charter Member Lulani Arquette . Individual Member Hermina Morita ~`~'~''t"" Charter Member Melody MacKenzie Charter Member Hardy Spoehr Charter Member Ray Soon ' 41l ' Oflll ,ulani Arquette and Ray Soon, both charter members of CNHA, are the Co-Chairs of nllf he Board of Directors for the 2002-2003 year. n July 2003, CNHA held its first election to fill expiring seats on the board of directors hrough a ballot process. Each organization that holds a seat on the Board of Directors s allowed to appoint its representative and one alternate. A complete listing of the '.003-2004 Board of Directors will be announced in October 2003. ,c .~1., STAFF BIOGRAPHIES CNHA has assembled a team of nine energetic and highly qualified Hawaiians to implement its programs. Each is located within one of the three CNHA Divisions Community Development, Events and Administration: • Robin Danner, President & CEO. Robin is Hawaiian and a homesteader from ~ Anahola. She has extensive management experience in the nonprofit, for-profit ~ business and government sectors including 13 years as Vice President of the National Bank of Alaska; 3 years as head of an Alaskan Housing Authority that served eight federally-recognized tribal governments; and 3 years as the Director of Housing for one of the largest municipal governments in Alaska. • Brandi Lau, Vice President & Director of Events. Brandi is Hawaiian, a graduate of Kamehameha Schools and the University of Washington where she received her B.A. in Business Administration. She oversees the Events and Administration divisions and is primarily responsible for the implementation of all CNHA's events. Before joining CNHA, Brandi served under State legislators Mina Morita and Bertha Kawakami. • Napali Woode, Fiscal Officer. Napali is Hawaiian, a graduate of the ~ University of Notre Dame where he earned a Bachelor of Business '~+W Administration with a concentration in Accountancy. He built a strong is ; foundation in accounting working at the international accounting firm of Coopers & Lybrand, now known as PriceWaterhouseCoopers. His later experience came in the private sector in the manufacturing, retail, and service industries. Napali oversees all fiscal responsibilities and employee benefits M,, administration. • Lilia Kapuniai, Community Development Manager. Lilia is Hawaiian and a homesteader from Kamuela, where she graduated from Hawaii Preparatory Academy. Lilia has over 8 years of experience working on Native Hawaiian issues. She is responsible for coordinating and facilitating training and technical assistance to agencies or organizations throughout the Pacific. Hokuala Johnson, Training and Technical Assistance Project Coordinator. Hokuala is a Hawaiian graduate of Punahou School and Colby College where she received a B.A. in Environmental Policy with a Minor in Anthropology. 3 ~ Her previous experience includes serving under State Legislator Dwight ' Takamine, Chair of the House Finance Committee. Page 7 • Nalani McDougall, Project & Events Coordinator. Nalani is Hawaiian, a graduate of Kamehameha Schools and received her BA in English from Whittier College and an MFA in Creative Writing from the University of Oregon. She is a Fulbright Scholar and spent a year in Aotearoa studying Indigenous Pacific Literature. Nalani coordinates the CNHA Annual Native Hawaiian Conference, other informational events and oversees CNHA membership activities. a • Leimana DaMate, Information and Policy Coordinator. Leimana is Hawaiian, a graduate of Kamehameha Schools and an applicant for homesteads on the island of Hawaii. She has dedicated the past 15 years to identifying and preserving Native Hawaiian cultural rights to natural land and marine resources. Leimana oversees several CNHA Information, Policy and Advocacy ti. Initiatives. ' • Jade Danner, Technical Support Officer. Jade is Hawaiian, a graduate of Kamehameha Schools and a homesteader from Anahola. She is a part-time staff dedicated to training and technical assistance projects at CNHA. She has a background in tribal government services, social and economic development in Native communities and is an expert grant writer. • Annie Au Hoon, Project Assistant. Annie is Hawaiian and a homesteader who is President of her Kewalo Hawaiian Homes Association on Oahu. She has over 10 years in community organizing experience and working in human service programs that improve the condition of local communities. Annie t provides support to CNHA community development programs engaging in " " training and technical assistance. --a Page 8 COMMUNITY DEVELOPMENT PROGRAMS & ACCOMPLISHMENTS Lilia Kapuniai, Manager ~!i:°i CNHA acts as an intermediary, striving to empower Native communities by enhancing the capacity of Native organizations and community groups. Toward this end, CNHA provides training, technical assistance, information, and advocacy w;;',;rt services to Native Hawaiian communities and the organizations that serve them. i ¦ Community Builders Program. CNHA conducts traininAs and provides technical assistance to Native organizations and communities. Our major projects are as follows: • ANA Project: The Administration for Native Americans (ANA) Project is a competitive grant program operated by the federal Department of Health and Human Services (HHS). CNHA is contracted by HHS to provide no-cost _ technical assistance and training to clients interested in applying to ANA. Assistance is available year-round in the state of Hawaii, Guam, American Samoa and the Commonwealth of Northern Mariana Islands. In October of 2002 CNHA competed and was selected to receive the Pacific Region contract to provide technical assistance and training. In the first 6 months of the fiscal year, CNHA developed curriculum, put together a team of highly qualified training consultants and responded to more than 190 requests :f for assistance. In addition, the following training sessions were conducted: February 2003 Honolulu March 2003 Guam February 2003 Lihu'e March 2003 Saipan February 2003 Hilo March 2003 American Samoa February 2003 Maui Apri12003 Guam 301 attendees participated, representing 140 Native-serving organizations. • CDRT Project: The Community Development Resources Training (CDRT) Project is sponsored by private funders. CNHA selects various grant programs operated by federal and state agencies, develops culturally appropriate curriculum and delivers training workshops on a year-round schedule in the state of Hawaii. Participants pay a registration fee to help offset costs. Topics include grant programs such as the Community Development Block Grant (CDBG), Native Hawaiian Institutions Assisting Communities (NHIAC), HUD HOME and Community Development Financial Institutions (CDFI). Page 9 CNHA received a sponsorship award in the amount of $100,000 from Bank of Hawaii over two years to sustain this project. During the year, CNHA developed curriculum and delivered training for I-IUD Native Hawaiian Institutions Assisting Communities (NHIAC) and the HUD Community Development Block Grant (CDBG). The project's success is found in the r,T, success of applicants since the projects inception and totals over $2 million in grant funding awarded to Native Hawaiian organizations. CNHA conducted the following training sessions in the 2002-2003 year: ,f January 2003 Oahu HUD NHIAC February 2003 Kauai HUD NHIAC April 2003 Hilo, Hawaii HUD NHIAC ~ Apri12003 Molokai HUD NHIAC _ ~ May 2003 Oahu HUD CDBG ~ May 2003 Kona, Hawaii HUD CDBG August 2003 Oahu HUD CDBG s The evaluations received under this project have been fantastic, with many participants, including county officials requesting that we expand this project to include direct hands-on assistance beyond the grant training workshops we provided. .a ~q • SCHHA/HUI Public Policy Project: This project provides year-round training e focused on providing the State Council of Hawaiian Homestead Associations, Hui Kako'o 'Aina Ho'opulapula, Association of Hawaiian Civic Clubs and the Department of Hawaiian Home Lands with information on federal legislative processes and the content of community development related federal statutes that impact Native Hawaiian Communities. The project features three workshop series that include Lawsuits ~ Legislation, Federal Government 101 and The Benefi'cirzries Guide to the Federal Trust Responsibility, all held on or near homestead communities around the state. This project was launched in June of 2003 and is one of the most exciting projects undertaken by CNHA. The project partners are seeking to expand the knowledge of major Native Hawaiian community-based organizations and communities about what public policy issues are at the federal government level. CNHA developed a full training and presentation curriculum on the Federal Recognition legislation and the Arakaki Lawsuit. We conducted over 23 workshops statewide reaching over 2,000 residents, business owners and agency officials. h. 4; trr 4'i Y_, • Technical Assistance Projects: CNHA is contracted on a project by project basis by a variety of agencies to complete specific tasks related to a community development issue. CNHA engaged in the following technical assistance projects: DHHL MOU with Maui County - Developed a memorandum of understanding (MOU) document to form the basis by which a first time homebuyer program funded by HUD HOME in Maui County will become available for DHHL beneficiaries on Maui, Molokai and Lanai. The program provides a down payment grant for low-income families building or buying a home on Hawaiian Home Lands. NAHASDA Grant Program -Developed grant program guidelines, application forms and monitoring methodologies for use by DHHL in making grants to community organizations from its new federal housing funds provided by HUD. Bank Management Training -Developed and conducted a training orientation on Native Hawaiian issues and customer market for newly hired employees and senior officials of Bank of Hawaii... Habitat for Humanity Training -Developed and conducted a training orientation on Native Hawaiian status and homestead properties for Habitat for Humanity personnel working in Hawaii. OHA Youth Project -Developed and conducted a presentation on the historical context of Native Hawaiians, Federal Recognition and the ~ Arakaki Lawsuit. Papa Ola Lokahi Alaska -Developed and conducted an orientation session on Alaska and Alaska Natives for a delegation of health practitioners traveling to Alaska to review common challenges and solutions. • Information & Policy Program. CNHA is an advocate of community development practitioners, provides information, networking opportunities and policy reports to assist in addressing issues and finding solutions for Native communities. Pale 11 • NewsClips & Resource Corner: This product provides current news stories and announcements about topical issues facing Native communities across the country. It is extremely popular among members and organizations and is delivered through an electronic database. CNHA launched this product in January 2003. NewsClips and Resource Corner serves an electronic database of nearly 3,000. Over 200 Native news stories from around the country and U.S. territories have been distributed. Of most interest to recipients are news clips on education, federal recognition, national initiatives and cultural protections. • Grantstation: This service is a weekly electronic newsletter on available grants and funding resources. It provides an easy and professional format by which ' to receive information on grant sources. CNHA distributed forty editions of Grantstation, covering hundreds of grant ;;s,., . ;~;F,;,.~.~ ..4'' sources for community development organizations. • Resource Directory: The CNHA Resource Directory is a reference booklet that provides information on local resources and contacts in the Pacific for community organizations. It contains standard information, such as agency contacts to establish an entity, funding and technica] assistance resources. Its > purpose is to support communities in finding the assistance they may need and to leverage multiple funding sources for their projects and programs. CNHA developed the foundation for Resource Directory and continued to ~ update the manual throughout the year. • Bill Tracker: CNHA tracks a number of federal legislative initiatives moving , through the Congress that may impact community development activities in Native areas. Through Bill Tracker, we are able to distribute relevant data and assist organizations to stay abreast of current public policy issues. n~ CNHA launched this product in March 2003. CNHA researched and produced its first Bill Tracker on the Federal Recognition Bill due to its tremendous impact on community development funding and programs. Due to the overwhelming demand and the amount of effort required to produce Bill Trackers, this product is only available to CNHA members. • Policy Briefs: CN1~IA produces periodic briefing papers on public policies of importance to the Native Hawaiian community and its service agencies. These } briefs provide information and analysis that helps stakeholders make informed decisions about the public policies or actions that affect Native Hawaiians, and actively contribute to policy formation. Most of the CNHA Policy Briefs are commissioned by a member organization of CNHA or under an agreement for service. CNHA launched this product in May 2003. Numerous topics were reviewed and have been selected for production over the next 10 months. We issued and published our first Public Policy Brief, entitled The Economic Impact of Federal Recognition of Native Hawaiians. This brief compiles economic data and provides a comprehensive narrative of the economic impact of losing federal dollars for Hawaiian programs and the resulting loss to the larger Hawaii economy. The second Policy Brief will focus on Infrastructure Funding for Hawaiian Home Lands. • Special Projects: Throughout the year, CNHA identifies special projects that may benefit its membership and other organizations working in Native communities. CNHA engaged in the following Special Projects: Understanding Constitutions -CNHA partnered with the UCLA Indian Law Clinic to complete a comprehensive review and compilation of various constitutions in Hawaii, the United States and the Pacific region. This project will result in a comprehensive workshop to be presented at the 2"d Annual Conference. Native Leadership Exchange -This project seeks to increase networking and collaboration among indigenous peoples. For 3 years in a row, CNHA has provided coordinated visits to Alaska and the continent, expanding the friendships and relationships among Native leaders and organizations. Dozens of meaningful relationships have developed among Native Hawaiian organizations and other entities and individuals beyond our shores. These relationships continue to flourish and have resulted in numerous partnerships among state agencies like the Office of Hawaiian Affairs, health and educational institutions and business owners. Pale 13 L ,`~r h ~ ~ ~ I~~% a ~ o> u ~ ~ ~ IrGv~~~~'lh,%vl'~iV~J C~,i ~ v~`-~~,~~~/1J~.1~~r h~Jc ~fll~~/U ~11~~ P e~oT" f~ ~ ~ Brandi Lau, Director CNHA plans and coordinates events that provide opportunities for Native Hawaiian individuals and organizations to network, share information, discuss critical issues, and build consensus. CNHA operates in two categories of event coordination as follows: • Annual Native Hawaiian Conference: Each year, a 4-day conference focused on Native Hawaiian community development is coordinated in the month of August. More than 500 individual participants attend powerful plenary sessions, informational workshops, dinner banquets and luncheons with high quality speakers and presenters. The Conference also features CNHA's annual membership meeting. CNHA closed out the First Annual Native Hawaiian Conference and has ; worked all year to coordinate the Second Annual Conference. Taking requests • from last year's attendees, the first day of the 2003 conference featured youth and elder issues. A total of 47 plenary speakers, along with 11 community development workshops were presented. Special events included a Legacy Luncheon dedicated to Senator Daniel Kahikina Akaka, the annual banquet dinner honoring Queen Emma and King Kamehameha IV, the annual concert ,,arum providing proceeds to a local halau and a conference reception sponsored by the Office of Hawaiian Affairs. • Summits, Forums, Roundtables & Symposiums: CNHA identifies 2-3 community development related topics and either coordinates the event, or partners with other organizations to focus attention through smaller, but effective forums, summits, roundtables or symposiums. CNHA partnered on or coordinated the following events: ~ January 2003 -Coordinated and hosted the Native Hawaiian Forum & Roundtable with Governor Lingle. This historic first time event brought together over 200 community development practitioners from the Native Hawaiian community to identify and share the most pressing challenges in all categories of community development. A Forum Report was issued to the Governor and her cabinet on the solutions to employ in each area. The Governor and her cabinet were briefed on Native " Hawaiian issues, statistics and solutions. Governor Lingle announced her commitment to reinstate ceded land payments at the Roundtable. ` May 2003 -Partnered with American Indians and Alaska Natives to host a forum in DC on Democracy &Self-Determination. With the leadership of the Alaska Federation of Natives, the forum presented three specific areas of community development; Health, Education and Economic Development. More than 300 participants and Congressman attended the event held at the Smithsonian Musuem. CNHA conducted outreach to various Native Hawaiian agencies to assist in their participation at the forum. The event enabled sharing of common challenges and common solutions among the Indigenous groups and fostered tremendous opportunities to participate in the formation of public policy. In the coming years, CNHA intends to mature the Event Coordination Program to provide logistics and coordination services to other entities working in community development areas. Expanding our reach in this manner will enable other organizations, particularly member organizations to focus on the content of their special events while CNHA coordinates logistics and registration for them. k }i: 7 Y A~~.q +~arMY.. Page 15 HAWAIIAN FIQMESTEAD TECHNOL04Y' Olin Lagon, CEO CNHA created afor-profit technology firm, Hawaiian Homestead Technology, Inc. (HHT). This firm is partnered with 10 federally recognized tribes, 2 that are Alaska Native and 8 that are American Indian. The collective goal is job creation in the specific technology field of document digitization and in rural locations on American Indian reservations, Alaska Native villages and Native Hawaiian homesteads. Since HHT is wholly owned by CNHA, profits will be reinvested into community development and capacity-building support services of Native communities. HHT is showing great promise. CNHA successfully launched HHT with minimal capital investment through volunteer labor, deferred capital commitments and project investments from local financial institutions, a local college and even equipment donations from business firms. Hawaii Community Loan Fund (HCLF) has been a critical partner in helping HHT to develop its management expertise and business plan development. The business model of HHT dedicates itself to partnering with homestead associations around the state to open technology centers. HHT held its first grand opening event in Anahola, Kauai in April, which was attended by 140 individuals from off-island and the Anahola community. The event was a great success, with presentations by Senator Inouye, Lt. Governor Aiona, Mayor Baptiste and many others. Representatives from the Inter Tribal Economic Alliance and the DC Law firm of Van Ness Feldman attended as well. In June, the first 12 trainees were selected from an applicant pool of over 30 applications from the Anahola community. The trainees have begun their technology training at Kauai Community College and began document digitization in July. HHT was awarded a small contract with Data Conversion Laboratories, a national ~ ~¢.z technology firm and Delta Airlines. These contracts provide 20,000 pages to be delivered in digitized format by the trainees located in Anahola. ~N A FINANCIAL CONDITION Napali Woode, Fiscal Officer CNHA retains the firm of Lychywek & Jennings, CPAs, Inc. Its fiscal year ends September 30th; however, quarterly financial statements are produced on a regular basis. Enclosed is our CPA letter and most current financial reports. i _~~_i. ti~~~ ~ Council for Native Hawaiian Advancement 33 South King Street, Suite 513 Honolulu, Hawaii 96813 Tel: 808.521.5011 Fax: 808.521.4111 www.hawaiiancouncil.org