Native Hawaiian Government Reorganization Act of 2005--Motion to Proceed

NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2005--MOTION TO PROCEED

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Ms. MURKOWSKI. I thank the Senator from Hawaii for his leadership on this issue, for his leadership on behalf of the people of Hawaii. There is so much in common that the Alaskans in the north share with our neighbors in the Pacific. I would like to take a few moments to speak a little bit about the history and how the history of our Alaska Natives ties in with the Native Hawaiians and why I stand today in support of the legislation offered by Senator Akaka.

As Abraham Lincoln is revered by the African American community as our first civil rights President, Richard Nixon is held in esteem by America's native people for his doctrine of self-determination. President Nixon knew that in order for the native people to break out of the despair and poverty that gripped their lives, they would need to be empowered to take control of their own destiny. One of President Nixon's legacies to America's first peoples is the Indian Self Determination and Educational Assistance Act. Another one is the Alaska Native Claims Settlement Act. These two pieces of legislation eliminated any doubt as to whether the Native people of Alaska were recognized as among the first people of our United States and were, therefore, eligible for the programs and services accorded to Native people.

Yet it took more than a century from the time the United States acquired Alaska from Russia for the legitimate claims of Alaska's native people to be resolved. One hundred and three years to be exact. President Nixon signed the Alaska Native Claims Settlement Act into law on December 18, 1971. It has been amended by Congress to clarify one ambiguity or another on numerous occasions since.

The Indian Commerce Clause of the United States Constitution, which provides the legal basis for our Nation's special relationship with its native people, speaks of the authority of Congress to regulate commerce with the Indian tribes. It is now well established that this provision of the Constitution is the legal basis for our Nation's special relationships with the Native peoples of Alaska.

Some of Alaska's native people regard themselves as Indians. But the Eskimo and Aleut peoples of Alaska, who have also been recognized by this Congress and the courts as deserving of the special relationship, most certainly would not regard themselves as Indians.

In Alaska, the basic unit of native organization is the village and while some villages refer to themselves as ``tribes,'' many native villages do not.

The Inupiaq Eskimo villages carry names like the native village of Barrow, the native village of Kaktovik, and the regional governing body of North Slope Inupiaq Eskimos refers to itself as the Inupiaq Community of the Arctic Slope.

Alaska's native peoples are Aleuts, Eskimos and Indians and their units of organization include entities like traditional councils, village councils, village corporations, regional consortia and subregional consortia. Yet neither the Congress nor the Federal courts deny all fall within the purview of the Indian Commerce Clause.

Leading constitutional scholars, including our esteemed Chief Justice John Roberts, have argued that Native Hawaiians also fall within the purview of the Indian Commerce Clause. I think it is high time that this Congress confirm that they do.

The American Indian Law Deskbook, 2d edition, authored by the Conference of Western Attorneys General, an association of state attorneys general, quotes the U.S. Supreme Court's decision in United States v. Antelope for this point.

Congress may not bring a community or body of people within the range of its Indian Commerce Clause by arbitrarily calling them an Indian tribe, but ..... the questions whether, to what extent, and for what time they shall be recognized and dealt with as tribes are to be determined by the Congress, and not by the courts.

As anyone who has been to law school knows, when the courts apply arbitrariness as the standard of review, they are highly deferential to the initial decision maker, whether that decision is made by the executive branch or the legislative branch.

And the new 2005 edition of Cohen's Federal Indian Law treatise, which has historically been regarded as the definitive authority on Federal Indian Law notes that ``no Congressional or executive determination of tribal status has been overturned by the courts'' and indeed the Supreme Court has never refined the arbitrariness standard to which I referred.

The Alaska Native Claims Settlement Act was most importantly, a settlement of land claims. But it has turned out to be so much more for Alaska's native people. It created native owned and native controlled institutions at the regional and village level. These institutions, the Alaska Native Corporations, have functioned as leadership laboratories, helping a people who traditionally lived a subsistence lifestyle gain the skills necessary to run multi-million-dollar economic enterprises. I am not only referring to the profit-making corporations created by the act, but also the people serving institutions that manage Indian Self Determination Act programs.

The Alaska native health care delivery system is a prime example of President Nixon's self-determination policies at work. At one time the Federal Government administered the delivery of health care to the native people of Alaska through the Indian Health Service. Today, the native people administer their own health care delivery system under a self-governance compact with the Federal Government.

This healthcare system is recognized around the world as a laboratory for innovation. It is a pioneer in the use of telemedicine technology to connect clinics in remote villages to doctors at regional hospitals, and at the advanced Alaska Native Medical Center in Anchorage. Confidence in the quality of care delivered by the native healthcare system rose when native people took over the system.

But for me the most gratifying thing is to see young native people who are leading their communities into the new millennium. You see them in management and developmental positions everywhere in the Alaska native healthcare system.

The institutions created and fostered by the Alaska Native Claims Settlement Act have helped countless native young people pursue educational opportunities at the undergraduate and graduate level. Young people from the villages of rural Alaska are going off to school and returning with MBAs and degrees in law and medicine, nursing, education and social work.

As I visit the traditional native villages in my State of Alaska, it is evident to me that the Alaska Native Claims Settlement Act accomplished much more than settling land claims and creating native institutions. This legislation empowered a people. The Native people of Alaska have regained their pride in being native. Even as native people are pursuing careers that their ancestors never considered, there is a resurgence of interest in native languages and native culture in many of our native communities.

The empowerment of Alaska's Native people also enriches the broader Alaska community. Thousands of Alaskans participate in programs offered by the Alaska Native Heritage Center in Anchorage. The Athabascan Old Time Fiddler's Festival and the World Eskimo-Indian Olympics enable the native people of Interior Alaska to share their culture with the Alaska community.

At the time the Alaska Native Claims Settlement Act became law, some believed that it would balkanize the State of Alaska and separate people from one another. As we approach the 35th anniversary of the Alaska native land claims settlement, I can state with confidence that this single step of recognizing the legitimate claims of Alaska's native peoples has made our State a better place. It strengthened our ties to the past. It strengthened our sense of community. It enables all of us, native and non-native alike to take pride in Alaska.

Some 112 years have passed since the overthrow of the Kingdom of Hawaii, depriving the Native Hawaiian people of their self-determination and their land. Some 112 years after the Native Hawaiian people came under the control of the United States, I am sad to note that their status among the aboriginal peoples of the United States remains in controversy.

This controversy persists even though the Congress has enacted more than 150 separate laws that recognize a special relationship between the Native Hawaiian people and the United States. Among these laws is the Hawaiian Homes Commission Act of 1921, which set aside lands for Native Hawaiians much like the Alaska Native Allotment Act set aside lands for Alaska Natives.

Now you would think that if Native Hawaiians were regarded as not having the status of Indian people under the Commerce Clause, that the Congress would not have set aside land for them or made them eligible for the sorts of programs and services for which native people are eligible. But the Congress has done so time and time again and Presidents continue to sign these bills into law.

I am referring to the inclusion of Native Hawaiians in laws like the Native American Programs Act of 1974 and the Native American Graves Protection and Repatriation Act, which protect the interests of all of America's native peoples.

I also refer to laws such as the Native Hawaiian Healthcare Act and the Native Hawaiian Education Act which specifically rely on Congress's plenary power over matters involving Indians for their authority.

This controversy persists even though this Senate passed by a margin of 65-34, an Apology Act in 1993 which was ultimately signed into law as Public Law 103-150. Through this Apology Act, the Congress expressed its commitment to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people.

The bill before us, S. 147, is the logical next step in the process of reconciliation. It is the product of many years of hard work by our esteemed colleagues, Senator AKAKA and Senator INOUYE. It has earned the support of the Governor of Hawaii, the Honorable Linda Lingle, and the support of the Hawaii Legislature. It is endorsed by every major Indian group in our Nation--the National Congress of American Indians, the Alaska Federation of Natives and the Council on Native Hawaiian Advancement. It has been carefully considered by the Senate Committee on Indian Affairs which has reported the bill favorably to the full Senate.

First and foremost, it conclusively resolves the issue of whether Native Hawaiians are aboriginal peoples alongside American Indians and Alaska natives. This is a process that the native people of Alaska waited 108 years to resolve. It is important for the Congress to resolve these issues in order to assure that the programs we have enacted for the benefit of Native Hawaiians are free of constitutional challenge.

It provides for the organization of Native Hawaiians in a form that the adult members of that community determine by an open and transparent ballot. And it empowers that Native Hawaiian organization to negotiate with the State of Hawaii and the United States of America over the direction that Native Hawaiian self-determination may take. This is a modest piece of legislation that simply establishes a framework for negotiations to take place in the future.

Some of the opponents of this legislation have set out a parade of horribles that will flow from its enactment. I, for one, am unwilling to speculate on the outcome of the negotiations between the United States, the State of Hawaii, and the organization of Native Hawaiians established by this legislation. This legislation on its face states that it does not authorize Indian gaming, it does not vest the Native Hawaiian organization formed under its provisions with civil or criminal jurisdiction, and it does not require that Federal programs and services to other aboriginal peoples of the United States be reduced in order to provide access to the native peoples of Hawaii. It also does not create Indian reservations in Hawaii.

Sharing and inclusion are fundamental values to the native people of Alaska. The Alaska Federation of Natives, which is the oldest and most respected organization representing all of Alaska's native peoples, strongly supports the inclusion of Native Hawaiians among our first peoples, just as it supports the legitimate claims of the Virginia tribes and those of the Lumbees of North Carolina. I ask unanimous consent that the AFN's resolution of support be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

In Support of the Hawaiian People

Whereas: the aboriginal people of the Hawaiian Islands, like Alaska Natives and Indians of the Lower 48 states, have long been the victims of colonial expansionism and racial discrimination; and

Whereas: the Office of Hawaiian Affairs, a unit of state government, has for years administered trust funds for the benefit of Native Hawaiians under the aegis of a Board of Directors elected by Native Hawaiians; and

Whereas: in the recent Rice v. Cayetano ruling, the U.S. Supreme Court held that this electoral process violates the Fifteenth Amendment to the United States Constitution, which prohibits the use of race as an eligibility factor in voting; and

Whereas: the Rice decision opens the door to additional lawsuits that would threaten the status and well-being of Hawaiians--and could create serious implications for Alaska Natives and other indigenous Americans; and

Whereas: the most experienced legal strategists in Hawaii, including the Governor and the Congressional Delegation, have determined that the best response to the Rice decision is that the United States Congress enact legislation specifically recognizing the Hawaiians as an ``indigenous people'' of the United States; and

Whereas: the State of Hawaii, particularly when compared to Alaska, has generally treated its indigenous population with respect and it is now making a unified effort to avoid the damage that Rice could do its own future; and

Whereas: there are several compelling reasons why AFN and the statewide Alaska Native community should now stand up for the Hawaiian people during the struggle for their appropriate legal status:

(1) because it is the right and just thing to do;

(2) because all Americans have a vested interest in healthy social relationships, racial tolerance, and political cohesion; and

(3) because the Hawaiian Congressional Delegation--and above all, Senators Daniel Inouye and Daniel Akaka--have always been there for us in our long fight for Alaska Native rights, including subsistence; Now therefore be it

Resolved, That the Board of Directors of the Alaska Federation of Natives declares its unqualified concern for, and support of, the Hawaiian people in their quest for federal recognition as indigenous people of the United States; and be it further

Resolved, That the Alaska Federation of Natives' Board of Directors direct the President and staff to assist the State of Hawaii's political leadership in this critical effort, by all appropriate means.

Ms. MURKOWSKI. Celebrating the distinctive cultures and ways of our first peoples strengthens of us. The Alaska Native Claims Settlement Act has stood the test of time and proven to be a good thing for the people of Alaska--native and non-native alike.

During his introductory remarks, the Senator from Tennessee, Mr. ALEXANDER, drew some distinctions between the situation of the Native Hawaiians and those of Alaska Natives. I would like to offer a few observations for the RECORD.

It is true that some Alaska Natives now and at the time the Alaska Native Claims Settlement Act of 1971 was enacted live in Alaska Native villages. Those villages have never been regarded as Indian reservations. Non-Natives live in Alaska Native villages alongside Alaska Natives.

But more significantly, the Alaska Native Claims Settlement Act of 1971 did not require that one reside in one of the Alaska Native villages or even in the State of Alaska to be a beneficiary of the settlement. All it required it that an individual have as a result of one's ancestry a specified quantum of Aleut, Eskimo or Indian blood to be an initial shareholder in an Alaska Native Corporation. The Federal Government determined who was eligible to receive stock by formulating a roll of Alaska Natives.

Recognizing rates of intermarriage among Alaska Natives, Congress has amended this legislation to give descendants of a corporation's original shareholders an opportunity to participate in the corporations on a co-equal basis with those shareholders who had the requisite blood quantum.

At the time that the claims act was passed Alaska Natives resided in every urban center of Alaska and many resided outside of the State of Alaska. They too lived as everyone's next door neighbor and were mixed in with the State's population.

In the 34 years since the claims act was passed more and more Alaska Natives have relocated to regional hubs, to Alaska's largest cities, and to locations outside Alaska. Today, Anchorage is regarded as Alaska's largest Native village. Some even live in Hawaii. Yet they have not lost their status as Alaska Natives in fact as in law. All remain eligible for services customarily provided to American Indians and Alaska Natives under the law.

I trust in the judgment of my respected colleagues, Senator AKAKA and Senator INOUYE, and my friend, Governor Lingle, that passage of S. 147 will enrich the lives and spirits of all of the people of Hawaii.

I ask that my colleagues support cloture to enable us to debate S. 147. With that, I yield the floor.

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