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Hearing of the Committee on Indian Affairs on Native Hawaiian Government Reoganization Act

Location: Washington, DC


The Chairman. Good morning. Please take your seats and we will begin the hearing on time.

I am pleased to convene this hearing this morning on S. 147, the Native Hawaiian Government Reorganization Act of 2005,
which my friends from Hawaii, Senators Akaka and Inouye have worked so hard to advance. I might add that Senator Inouye is ill this morning. I got a call from him. He is a little under the weather, and so he will not be here this morning, but he
obviously has a very longstanding commitment and involvement on this issue.

S. 147 legislates a process whereby Native Hawaiians can re-constitute a governmental entity. The history of the
Hawaiian Islands and their annexation in the United States is not one of the shining moments in our history. That said, my
reservations with this legislation have been reported more widely, in fact, than I anticipated. First, I want to be sure
that the recognition of a Native Hawaiian government is not inconsistent with any understanding or agreements at the time
of statehood in 1959. My staff on the Indian Affairs Committee has been researching this issue and I am sure others have been
doing that as well.

Second, I think the bill should not be read to release the State of Hawaii of any liabilities it has incurred or any
obligations that it undertook as part of the statehood process.

Finally, I feel that the resources are currently available to the Bureau of Indian Affairs, the Indian Health Service and
other Federal agencies conducting Indian programs are already inadequate to meet the needs of Indian people. We want to be very careful about spreading it any thinner than they already are with the addition of a large population of new program

I look forward to addressing these issues this morning. I understand that there are many people who have asked to testify
today who we could not accommodate, including the Association of Hawaiian Civic Clubs. Regrettably, although our committee invited the Department of Justice to testify, they chose not to send a witness to today's hearing. I hope we can get the Administration's views on this bill at a later time.


The Chairman. Please know that the committee will very carefully consider any written testimony it receives. I thank
you all for being here, and I want to emphasize I am keeping an open mind on this issue. I have reservations, but I think those
reservations will be ventilated here in this hearing process.


The Chairman. Thank you very much, Governor Lingle. And thank you for your steadfast leadership and commitment to
Native Hawaiians. We are very pleased that you could appear here today.

Picking up on a couple of your comments that you just made, under this proposal, if Native Hawaiians wanted to establish a
gaming operation, that would require the agreement of the State legislature and Congress, as well as the Native Hawaiians

Ms. Lingle. I would ask the lawyers in the room. My attorney general is here and can answer that question. I will
ask him to do that. I will state for you clearly from a policy point of view, Senator, our entire congressional delegation
opposes any legalized gambling in our State. We are one of two States with no form of legalized gambling. I oppose it. I will
let the legal question be answered.

The Chairman. Thank you. My point is that there are a lot of States where the legislatures have opposed gaming
operations, and they have been set up. But go ahead.

Ms. Lingle. This is Attorney General Mark Bennett.

The Chairman. Go ahead, sir.

Mr. Bennett. Senator, the bill itself says that there ought to be and shall be no gambling pursuant to this bill. In
addition, it would certainly require at the very least an act of Congress to allow gambling if this occurred. But we believe
that the bill by itself provides no gambling, but there would be no possibility of that without a further act of the Congress.

The Chairman. Thank you very much.

Governor, after getting into this issue a little more, it seems to me that your sense of urgency is dictated by some of
the constitutional challenges that have been brought against programs that are administered by the State of Hawaii. What
other programs would be in danger here if S. 147 were not enacted?

Ms. Lingle. The most critical program right now is one that is pending in the Ninth Circuit. It involves the Department of
Hawaiian Homelands. There are 200,000 acres of land that are home to 7,000 families, 28,000 people on those lands. If there
was a successful legal challenge in my State, it would create social disruption because people would no longer have the right to those lands. So that is, from my perspective, right now the most pressing issue.

If we are able to get S. 147 adopted, we will use this as a clear basis for our argument that this is not a racial preference, but these lands were set aside because there is a trust, a political relationship between the Native Hawaiian people and the American Government.

The Chairman. Has there already been court decisions which have impacted the status of Native Hawaiians?

Mr. Bennett. There was a lawsuit challenging Native Hawaiian programs that was dismissed, I would say, on technical
grounds in the District Court, but that is up on appeal right now in the Ninth Circuit. While we believe that we can defend
these lawsuits on the current state of affairs, if this bill were to pass, we believe that this would provide a clear
mandate once and for all for the dismissal of these lawsuits. We certainly are greatly concerned that without this bill at
some point, these lawsuits, either the current one or a future one, may succeed in invalidating all programs that benefit
Native Hawaiians.

The Chairman. Governor Lingle, do you have an opinion on how well, since the time of statehood, the State of Hawaii has
managed the ceded land trust for the benefit of Native Hawaiians?

Ms. Lingle. I think recently we are doing an outstanding job.

The Chairman. Since you were inaugurated? [Laughter.]

Ms. Lingle. I think, sir, with 85 years passing since the Hawaiian Homes Trust was set up, we could have done a much
better job. We have an accelerated program that we have put forward to put thousands of additional families onto this land.
We think, again, it has been, as many other things that relate to Native Hawaiians and many other programs, it has simply been too long in coming. It is the right thing to do to move forward in a much faster pace. So I think we are on the right track
now, and this will help to keep us there.

The Chairman. I thank you. Given the obvious urgency of this legislation, I think you deserve a rapid decision by the
Congress of the United States on this issue. I would intend to hold a vote very soon in the committee so that we can move this
legislation forward.


The Chairman. Thank you very much, Ms. Danner.

What are your views on how well the State of Hawaii has carried out its responsibilities of administering the ceded
lands for the benefits of Native Hawaiians?

Ms. Danner. I would agree with the Governor's assertion that in recent years, maybe the last 10 to 15 years, there has
been a much better effort toward managing those resources. But in truth, that is one of the fundamental reasons I believe that
we need to control those assets, because we need to be able to hold ourselves accountable from within our community, and not knocking on the door of the State government who is our guardian. They have done a tremendous job in recent years.

The Chairman. Thank you.

President Hall, does the majority of Indian country support this legislation?

Mr. Hall. Yes; they do, Mr. Chairman. It was discussed at length in our recent resolution which is attached to my testimony, but it was unanimously passed at the NCAI annual convention, Mr. Chairman, in support.

The Chairman. Thank you.

Chairwoman Apoliona, how much money does the Office of Hawaiian Affairs currently receive from the State of Hawaii for
the benefit of Native Hawaiians?

Ms. Apoliona. From our legislature, we receive approximately $2 million a year.

The Chairman. $2 million a year.

Ms. Apoliona. And from the revenues of ceded lands, we receive approximately $9 million a year. The Chairman. Does the airport in Honolulu sit on----

Ms. Apoliona. Yes; it does, Senator.

The Chairman. And do you get any revenue from that?

Ms. Apoliona. At the current time, the Native Hawaiian Trust of the Office of Hawaiian Affairs does not receive revenues from those ceded lands of the airport, although the obligation still remains.

The Chairman. Why do you think that is?

Ms. Apoliona. A couple of years ago, there was legislation passed here in the U.S. Congress that reinforced the Department
of Transportation's request that revenues not be paid from the airport trust revenues that are derived from the airports in
Hawaii. However, the obligation still remains for the payment of a 20-percent pro-rata share to the Native Hawaiian Trust
from those lands, from use of those lands.

The Chairman. But that is not the case?

Ms. Apoliona. The congressional act prohibits the State of Hawaii from paying the pro-rata share from the airport trust

The Chairman. How many people currently qualify as homesteaders under the Hawaiian Homes Commission Act?

Ms. Apoliona. I would like to turn to Mr. Micah Kane.

Mr. Kane. Chairman McCain, my name is Micah Kane. I am the chairman of the Hawaiian Homes Commission. I manage the
Department of Hawaiian Home Lands which has the trust responsibility of all of the lands and residences and people
who are on our waiting list.

Currently right now, as Mrs. Danner articulated, we have 7,400 residential and agricultural lessees that we serve. We
also currently have about 18,000 individuals who are qualified Native Hawaiians who would have the opportunity, should our
trust present them for home ownership or land stewardship.

The Chairman. How many people would be eligible as, quote, ``Native Hawaiians'' as the bill defines this term, to
participate in the vote to create the new Native Hawaiian entity?

Ms. Apoliona. There are approximately 400,000 Native Hawaiians throughout this country. By choice, they will have to
make a decision whether they will participate in the process for reorganizing the Native Hawaiian Government. It will be
their decision.

The Chairman. There are 400,000 people who will decide themselves whether they qualify as Native Hawaiians?

Ms. Apoliona. Part of self-determination, Senator, provides for, as we understand it, the ability for a community to define
its membership, and that we would be afforded similarly that decision making process as Native Hawaiians. As we have said
earlier, the impact of passage of this bill in our minds is very minimal, as my testimony has said. The financial impact to
the Federal budget is very minimal, according to the report of the Congressional Budget Office.

The Chairman. If you will pardon me, I was just asking how many people would be eligible as Native Hawaiians, and the
answer, I guess, is 400,000?

Ms. Apoliona. Approximately, should they choose to participate in reorganizing the Government.

The Chairman. Thank you very much.

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