I rise today in support of S . 147, the Native Hawaiian Government Reorganization Act and to address the outrageous mischaracterizations that some of my colleagues made yesterday about this measure. The law does not support their attempts to discriminate against Native Hawaiians so my colleagues had to resort to trying to confuse the issue.

This measure does not result in race discrimination. But discrimination will occur if this measure is not passed. It is undisputed that Native Hawaiians are the aboriginal, indigenous people of Hawaii. Yet some of my colleagues want to discriminate against them and treat them differently from other Native Americans -- the American Indian and the Alaska Native. They seek to impose a new requirement for Congressional legislation to authorize the reorganization of a Native Hawaiian government even though many of these opponents have been in Congress for years and did not impose this requirement on the other aboriginal indigenous people recognized by Congress since 1978. Do not participate in these discriminatory activities.

Congress has plenary authority over the aboriginal, indigenous people of America. The Supreme Court has repeatedly upheld this. The Supreme Court has also acknowledged Congress' authority to recognize as an Indian tribe the aboriginal, indigenous people of America regardless of whether they are Indians, regardless of whether they are organized as a tribe, and regardless of whether they are located in territory of the United States. My colleagues who spoke against this measure yesterday know this. But none of them attempted to address these issues.

Rather, they are trying to distract us and the American people by claiming that this bill will strip Native Hawaiians of their American citizenship. My colleagues know better than this. They know that Indian tribes, however they are formed, are recognized as sovereign governments in the United States. They know that since the early 1800s the Supreme Court has called the Native governments of this land -- domestic, dependent nations. They know that the status and existence of Native governments is recognized within our form of government. But they are relying on the fact that many of our citizens are not familiar with Native American governments so that they incite fear of racial preference, denial of rights, and secession.

Although the United States of America does not recognize dual citizenship for those who come from other countries, the United States does recognize that Native Americans can be both citizens of the United States and members of their Native government. This is true even for those Native Americans located in the lower 48, whose tribal governments were terminated in the 1950s, or whose tribal governments were restored or recognized over the last 30 or so years. This bill will lead to a similar situation for the Native Hawaiians. It is not inconsistent with what already exists in the United States.

Native Hawaiians do live as separate and distinct communities. In 1921, Congress enacted the Hawaiian Homes Commission Act of 1920, which set aside approximately 203,500 acres of land for homesteading and agricultural use by Native Hawaiians. The Act was intended to "rehabilitate" the Native Hawaiian race, which was estimated to have dropped from between 400,000 and 1 million, to 38,000. At the time, prevailing Federal Indian policy was premised upon the objective of breaking up Indian reservations and allotting lands to individual Indians. Most of the homestead communities belong to an organization called the State Council of Hawaiian Homestead Associations. The Council is composed of 24 separate Native Hawaiian Homestead Associations. These associations are distinct and separate communities of Native Hawaiians.

Aside from living on Hawaiian homelands, there are communities that are distinctly Native Hawaiian. Through Native Hawaiian social and political institutions such as the Royal Hawaiian societies which existed during the Kingdom of Hawaii as well as the Association of Hawaiian Civic Clubs, Kamehameha Schools, and Queen Liliuokalani Children's Center, the Native Hawaiian community has maintained its distinct character as an aboriginal, native people.

Native Hawaiian culture, tradition, custom, and language has experienced a renaissance in the past 30 years. Many Native Hawaiians speak the Hawaiian language and practice the cultural practices of our kupuna, our ancestors, in health care and in education.

In another attempt to incite fear of this bill, some of my colleagues stated that this measure would lead to Hawaii seceding from the United States. Yes, a small percentage of my constituents advocate for Independence from the United States. It is an extreme view that I do not share, that the majority of Hawaii's citizens do not share, and that will not happen.

In 1959, Hawaii was admitted to become a part of the United States because the voters in the territory of Hawaii overwhelmingly voted to do so. This does not, however, erase the wrongs that were committed against this unique group of indigenous aboriginal native people. This bill does not affect Hawaii's statehood or the rights of it citizens under such statehood. This measure does, however, provide an opportunity to reorganize a Native Hawaiian government, similar to that of Alaska Native and American Indians, who are also American citizens, and it provides an opportunity to finally resolve longstanding issues that exist in Hawaii as a result of the illegal overthrow.

The United States, in enacting Public Law 103-150, the Apology Resolution, has already recognized the fact that Native Hawaiians have never given up their inherent sovereignty. Despite the fact that Hawaii was admitted as the 50th State of the Union, Native Hawaiians neither by the government or through a plebiscite or referendum gave up their rights to inherent sovereignty. The June 27, 1959, statehood plebiscite in Hawaii only asked "Shall Hawaii immediately be admitted to the Union as a State?" Although the statehood plebiscite did not provide other options for independence or free association, it did not dissolve an inherent right to sovereignty by the indigenous people of Hawaii, Native Hawaiians.

Native Hawaiians are Americans and will continue to be American citizens upon enactment of this measure. Like other Native Americans, Native Hawaiians have honorably and overwhelmingly served in the United States military. Like their Native American brethren, they have served in numerous wars, including, World War II, Vietnam, Afghanistan, and Iraq and remain truly essential to protecting our country. Native Hawaiians will continue to do so after enactment of this measure. Native Hawaiians are truly proud to be Americans and should be.

Yesterday, some implied that this measure would abridge the right to vote and there was an attempt to somehow link the Supreme Court's decision in Rice v. Cayetano to this matter. This holding of this case has no bearing on the measure before us and this bill does not reverse the Court's holding. In order to fully understand what this decision did and did not say, one needs to know the facts:

The Office of Hawaiian Affairs is established pursuant to the Hawaii State Constitution as a State agency to administer programs for the benefit of Native Hawaiians. Prior to the Rice decision, the State limited voting for the trustees of the Office of Hawaiian Affairs, to Native Hawaiians. Mr. Rice, a non-Native Hawaiian citizen of the State of Hawaii, sued the Office of Hawaiian Affairs, a State agency, because he was not eligible to vote in the elections for the Board of Trustees that administers programs for the benefit of Native Hawaiians. Because the Office of Hawaiian Affairs is an arm of the State, the Supreme Court held that the State of Hawaii's denial of the right to vote in elections for the Board of Trustees of the Office of Hawaiian Affairs violated the Fifteenth Amendment guarantee of the right to vote.

That is what the Rice v. Cayetano decision held. Nothing more, nothing less.

But it appears that many of my colleagues have not read Rice. So I will take the liberty to cite from the decision so that my colleagues can fully understand that this case has no bearing on the matter before us today. Because with respect to whether or not Congress may treat Native Hawaiians as it does Indian tribes, the Court left open the possibility that Congress could treat Native Hawaiians as such. At 528 U.S. 518, the Court accurately noted that it had not yet considered whether "Congress ... has determined that native Hawaiians have a status like that of organized Indian tribes. ..." but the Court continued by specifically stating on page 519, "We can stay far off that difficult terrain." The Court found it unnecessary to address whether Congress has treated Native Hawaiians as an Indian tribe because it found that the Office of Hawaiian Affairs is a State agency.

Although the holding of Rice is not relevant to the matter before us, the author of the State's brief is interesting, for the author is none other than recently confirmed Chief Justice John Roberts. Now Chief Justice Roberts clearly laid out the arguments as to how and why Native Hawaiians are a separate and distinct aboriginal, indigenous people who fall within Congress's plenary authority over Indian tribes. For instance, Chief Justice Roberts stated:

Congress's broad authority over Indian affairs reaches the shores of Hawaii, too.

The Constitution gives Congress -- not the courts -- authority to acknowledge and extinguish claims based on aboriginal status.

Congress has established with Hawaiians the same type of "unique legal relationship" that exists with respect to the Indian tribes who enjoy the "same rights and privileges" accorded Hawaiians. ...

I urge all of my colleagues to read the excellent brief drafted by now Chief Justice Roberts.

Congress has repeatedly enacted laws that limit the right to vote in Native governmental elections to the members of that native government and it is consistent with the Constitution. In the 1930s, Congress enacted the Indian Reorganization Act and limited voting to tribal members.

In the 1970s, Congress enacted the Alaska Native Claims Settlement Act and limited voting to Native shareholders and their descendants. Since 1978, Congress has enacted over 20 laws that authorized the reorganization or recognition of Indian tribes and many of those laws expressly limit voting to the members of those tribes. To listen to the opponents of this measure, the bill will create a racial preference for voting in a native government and that this has never been done before. But as I just pointed out, this bill is not forging new ground. This bill is consistent with Congress's past actions and the Supreme Court has never questioned these actions.

Another matter that my colleagues try to confuse others on is the difference between reorganizing or recognizing a native government and creating a native government. No one, not even the opponents of the measure, dispute that Native Hawaiians exercised sovereignty over the lands that now comprise Hawaii before European contact. No one disputes that there was a Native Hawaiian Kingdom. Consequently, there was a Native Hawaiian government that the United States recognized as a sovereign.

Indeed, the United States even engaged in government-to-government relations with the Kingdom of Hawaii. It is this government which will be reorganized as a domestic, dependent nation within our constitutional framework, in a manner consistent with the status of other Native Americans.

To hear the comments made yesterday, one would think that there was never a Native Hawaiian government. One of my colleagues recently attended a forum on this measure and mentioned his concern over the lack of civic education in America and the corresponding lack of knowledge about America's history. I agree with him. I urge all my colleagues to learn more about the history of Hawaii, the history of Native Hawaiians, the history of the United States, the laws enacted by Congress for the benefit of the aboriginal, indigenous people of the United States, and the laws handed down by the Supreme Court.

I am confident that once my colleagues become more informed about these matters, all will realize that enacting legislation authorizing the reorganization of a native government is within Congress authority. The Supreme Court reaffirmed this authority as recently as 2 years ago in United States v. Lara. In fact, the Court acknowledged that "Congress has restored previously extinguished tribal status -- by re-recognizing a Tribe whose tribal existence it previously had terminated."

Once everyone obtains more education about the history and laws influencing this measure, they will realize that various history impacts the history of the United States, you will realize the difference between authorizing the reorganization of a native government and creating one out of thin air.

Claims that this bill will establish a precedent for the recognition of tribal status for Amish or Hassidic Jews or other groups are ridiculous. It is just another attempt to scare the citizens of America. Congress has the authority to recognize government-to-government relations with the aboriginal, indigenous people because of their preexisting sovereignty over the lands because of European contact. None of these other groups are preexisting sovereigns who exercised such authority.

Nor will this result in a government for the Hispanics who lived in Texas before it became a republic in 1836, or for descendants of the French citizens before the Louisiana Purchase. Again, these citizens are not aboriginal, indigenous people who exercised sovereignty before Western contact. While Congress has used its plenary authority to recognize the aboriginal, indigenous people who reside in these former territories, Congress has never attempted to recognize the non-aboriginal, non-indigenous people as a government nor will it. We are not creating a precedent here.

Finally, I want to address the letter from the Department of Justice that was sent to Majority Leader Frist last night. Last year, the Justice Department sent a longer letter outlining substantive policy concerns. Senator AKAKA and I, along with Gov. Lingle, engaged in extensive negotiations with administration officials to address these substantive policy concerns. The result of these negotiations are contained in the substitute amendment that Senator Akaka will he offering. There was no attempt to address the ideological concerns laid out in that letter. Therefore, Sen. Akaka and I have always known that all of the Department of Justice's concerns will not be addressed in the substitute amendment.

Before anyone relies too much on the Justice Department's letter, let me point out that the letter cites to the United States Commission on Civil Rights. I urge everyone to read the Government Accountability Office report released last week that noted the Commission's recent activities are not objective nor are there procedures in place to guarantee that they are.

While the letter correctly notes that the Supreme Court believes there is considerable dispute, it fails to acknowledge that the Supreme Court could have addressed the issue in Rice v. Cayetano but instead chose to put the issue aside for another day. The letter also does not mention the extensive Supreme Court case law that recognizes that it is Congress who has the authority to recognize a government-to-government relationship with a native government, not the Courts.

I urge my colleagues to vote "yes" on cloture so that this matter can be fully debated and everyone can be informed of the law supporting this measure. Do not fall victim to attempts to confuse this issue before us. Do not let your arm be twisted with threats that you should ignore your constituents and vote for the party line that is based on misinformation, not the law. All we are asking is that you allow an up or down vote on this measure.

Recently, the President of the United States George W. Bush submitted the name of John Roberts to be Chief Justice of the United States. Chief Justice Roberts was confirmed by this body because of his intellectual background and primarily because of his conservative views.

Recently, Chief Justice Roberts laid out arguments as to how and why Native Hawaiians are a separate and distinct aboriginal indigenous people who fall within Congress's plenary authority over Indian tribes. Among the many things that the Chief Justice said in his brief is the following:

Congress' broad authority over Indian affairs that reaches the shores of Hawaii too.

He went further to say:

The Constitution gives Congress -- not the courts -- authority to acknowledge and extinguish claims based on aboriginal status.

Chief Justice Roberts further stated:

Congress has established with Hawaiians the same type of ``unique legal relationships that exist with respect to the Indian tribes who enjoy the ``same rights and privileges accorded Hawaiians. ...

I urge all of my colleagues to read this excellent brief by now Chief Justice Roberts.

Mr. President, many things have been said about what this bill will do and will not do. Some were rather outrageous, I must say. For example, it was argued that this bill will establish a precedent for the recognition of tribal status for Amish and Hasidic Jews or other groups.

I think it is just another attempt to scare our fellow Americans.

Congress has the authority to recognize government-to-government relations with aboriginal indigenous people because of their preexisting sovereignty over lands before European contact. None of the groups that have been named, such as the Amish or the Hasidic Jews, are preexisting sovereigns who exercised such authority.

While Congress has used plenary authority to recognize aboriginal indigenous people who reside in these former territories, Congress has never attempted to recognize the nonaboriginal nonindigenous people as a government, and it will not. We are not creating any precedent here.

Finally, the letter from the Department of Justice was mentioned. It was sent to our majority leader last evening.

Last year, the Justice Department sent a longer letter outlining substantive policy concerns. As a result of that letter, Senator Akaka and I, together with Governor Lingle, the Republican Governor of Hawaii, engaged in extensive negotiations and discussions for nearly 2 months with officials of the White House, the Justice Department, and OMB to address these policy concerns.

The result of these negotiations was contained in a substitute amendment identified as S . 364, which was introduced by Sen. Akaka. He made a formal request that this bill be considered original text for consideration in this debate. Regretfully, that offer was rejected.

This letter from the Attorney General does not refer to S . 364, which they are well aware of because they helped us draft it. They refer to the old bill, S . 147, which we intend to substitute with S . 364.

Yes, we are aware of the shortcomings of S . 147, and we met for nearly 2 months to clarify that.

I hope my colleagues will vote yes on this cloture motion so this matter can be more fully debated and everyone can be fully informed of the laws supporting the measure.

All we are asking for is an up-or-down vote on this measure. We just want an opportunity to debate this measure.

U.S. Sen. Daniel Inouye is a Democrat representing the state of Hawaii.

HawaiiReporter.com reports the real news, and prints all editorials submitted, even if they do not represent the viewpoint of the editors, as long as they are written clearly. Send editorials to mailto:Malia@HawaiiReporter.com

Government Watch...