Good afternoon Vice-Chairman Inouye, Senator Akaka, Representative Abercrombie, Representative Mink, and Representative Faleomavaega. My name is Susan Masten. I am the President of the National Congress of American Indians (NCAI), and Chairperson of the Yurok Tribe of Northern California. NCAI is the oldest and largest, American Indian organization in the United States, organized in 1944 to fight against termination of tribal sovereignty and the assimilation policies promulgated by the federal government. Today, NCAI remains dedicated to protecting the rights of its more than 250 member Indian Nations, and to working to help tribal governments and all Native people achieve self-determination and self-sufficiency.

On behalf of NCAI, I would like to thank you for the opportunity to testify before the Committees regarding S. 2889 and H.R. 4909, bills to express the policy of the United States regarding the United States’ relationship with Native Hawaiians. NCAI strongly supports the recognition of Native Hawaiian sovereignty by the federal government and the creation of a process that will lead to self-determination for Native Hawaiian people. Over the last year, the member tribes of NCAI have unanimously advanced two resolutions - Resolution #PSC-99-042 (attached) and Resolution #JUN-00-032 (attached) - supporting the sovereign rights of Native Hawaiians and calling for the federal recognition of the Native Hawaiian Governing Body.

Like all of our nation’s indigenous peoples, Native Hawaiians lived on the land and governed their own affairs for thousands of years before the first European contact. Even after European contact, nations from all over the world recognized the government of the Native Hawaiians–the Kingdom of Hawai’i–as a sovereign political entity and a valued partner in commerce and trade through formal documents such as international treaties. The United States officially recognized the Kingdom of Hawai’i as a sovereign political body as early as 1826, evidenced by five treaties between the United States and the Kingdom of Hawai’i. However, as agricultural ventures on the Hawaiian Islands increased production and profits, pressure came from the United States to annex Hawai’i. Americans precipitated a violent overthrow of the Kingdom of Hawai’i in order to ensure annexation and later statehood for Hawai’i.

There has been an ongoing effort for many years to formally address the organization of the Native Hawaiian community into a entity that would be recognized as having a government-to-government relationship with the United States. There are many different formulations and concepts that have been debated in the Islands. This debate occurs against the backdrop of the unresolved claims against the United States for the illegal overthrow of the Queen in 1893 and subsequent annexation of the Islands by the United States.

The federal government has made it clear that Native Hawaiians have the same status as other native groups, but the sentiment has existed without full legal recognition. Congress has passed more than 150 federal laws addressing the conditions of Native Hawaiians as a distinct and unique group, including the Hawaiian Homes Commission Act of 1920 and the Act entitled "An Act to provide for the admission of the State of Hawaii into the Union." This corpus of legislation sets a legal precedent that provides the basis for federal recognition of a Native Hawaiian governing body.

Among the numerous Acts that refer to Native Hawaiians as a group is Public Law 103-150, or the Apology Act. The Act’s purpose is to "acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawai’i, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai’i." This bill enumerates the various wrongdoings of the United States government in relation to the Native Hawaiians and the Kingdom of Hawai’i, including describing the illegal overthrow as a "substantial wrong" and as an "act of war." This law alone entitles the Native Hawaiian people to compensation and reconciliation, and calls for the Congress and the President to support those efforts.

A stimulus to the introduction of S. 2899 and H.R. 4904 was a recent United States Supreme Court decision in Rice v. Cayetano, which determined that the election of trustees of the Office of Hawaiian Affairs (OHA) solely by Native Hawaiians violated the fourteenth amendment of the U.S. Constitution. OHA is a entity of the State of Hawaii created in the State Constitution at the behest of Native Hawaiian delegates to the State Constitutional Convention. OHA receives income from certain trust lands and advocates for Native Hawaiians and their issues. Advocates for Native Hawaiians have argued to the U.S. Supreme Court that the OHA should be treated for constitutional analysis purposes similar to an Indian tribe. Rejecting this argument, the Court focused on the fact that OHA is a state agency and not a freestanding political entity recognized by the United States.

S. 2899 and H.R. 4909 both create a system by which Native Hawaiian people, with the assistance of the Secretary of the Interior through the Office of the Special Trustee, may organize and create their own entity that the United States will recognize. It is clear that Native Hawaiians must support any process designed for this purpose in order for it to be successful. NCAI will support whatever path the Native Hawaiian people choose to assure their self-determination, and will assist by sharing our own experiences where they are relevant.

S. 2899 and H.R. 4904 is based in part upon the recognition or restoration process that Congress has followed for several decades with many tribes, including my own Yurok Tribe. The Yurok Tribe, though federally recognized since the mid-nineteenth century, had never formally organized its governmental structure. We shared a reservation with the Hoopa Valley Tribe and individuals were in frequent litigation over resource distribution, fishing, and cultural rights. In 1988, the Congress divided our formerly joint reservation and set out a process that included creating a membership roll, electing an interim council, drafting a constitution, and then receiving federal recognition or acknowledgment of our designated government. It was a successful, but not problem-free, process. During our constitutional process there was debate in our community over whether having an organized government with the potential of Department of the Interior interference was preferable to our then-current situation. The late Joe De la Cruz, then-President of the Quinault Indian Nation, visited our people and assured us that the benefits of being an organized government, including the enhanced control over our own destiny, far outweighed any power that the Department of the Interior might have. Let me assure you that time has shown his judgement to be correct. Our ability to serve our people and to protect our resources does indeed far outweigh the problems with the federal bureaucracies.

It is important to formally recognize the sovereignty of the Native Hawaiian people because of the historical wrongdoings and deprivations that the Native people faced at the hands of the United States when their government was taken from them. But self-determination is needed not only to ensure a measure of justice, but more importantly to protect the unique indigenous Hawaiian culture which is constantly threatened by the incursions of a predominant non-native culture. Self-determination is also necessary for the protection and governance of lands, which are necessary for any culture to continue to survive, to allow native people to live together as a community, continue traditional land-based cultural practices, and provide the economic means to live productive and healthy lives.

Through S. 2899 and H.R. 4904, Congress is taking the initiative to help Native Hawaiian people create a sovereign political entity of their own creation. The legislation provides for the creation of a Native Hawaiian Interim Governing Council. This council, being comprised of nine members–all of whom are Native Hawaiian–will serve as the first step in the creation of a Native Hawaiian governing body for the Native Hawaiian population.

The creation of a Native Hawaiian governing body will begin reconciliation between the federal and state governments and the Native Hawaiian people. With a representative council, the Native Hawaiians will have a unified voice with which to speak to local, state, and federal government entities on a government-to-government basis. This government-to-government interaction fulfills the President’s Executive Order #13084, which requires the federal government to consult with Native governments on mutually important matters.

The creation of the Council, along with the recognition of Native Hawaiian sovereignty, will protect it against attacks from non-natives who do not respect the inherent rights of Native people to self-government. With a governing Council in place, Native Hawaiians no longer have to worry about non-native individuals running for seats on their governing body, which has happened as a result of the Supreme Court Decision in Rice v. Cayetano.

NCAI works to protect tribal sovereignty and indigenous cultures worldwide. We strongly believe that these fundamental principles will serve to the benefit of Native Hawaiians and to all who live in Hawai’i. On the mainland, we have seen how respect for tribal sovereignty has transformed failing Indian communities into strong partners in providing law and order and governmental services, as well as in economic development. We would strongly urge that all Hawaiians consider the merits of this legislation and support its passage in the U.S. Congress.

We have reviewed S. 2899 and H.R. 4904 and offer the following comments:

The findings and policy sections are very important because they make the legal case for Native Hawaiians as Native peoples for whom the United States has a trust responsibility and for whom the Congress has the authority to legislate.

The key definition is that of "Native Hawaiians", which provides for the lineal descendants of the Native people who resided in Hawai’i on January 1, 1893. This definition requires the broad-based support of the Native Hawaiian people. My own experience as a member of the interim council for the Yurok Tribe, which was responsible for developing our tribe’s constitution, was that the congressionally delineated criteria for our tribal membership excluded many whom we at home considered Yurok. Under our own constitutional standards, our membership rose over fifty percent. Although we cured the problem in practice, the effects linger and we still fight to have our real numbers used as the basis for federal funding.

Sec. 4. Establishment of the Office of Special Trustee for Native Hawaiian Affairs

This trustee is clearly different and has a more limited role than does the Secretary of the Interior as trustee for Indian tribes. The office does not hold title to land or other resources, but seems to have a consulting and coordinating role. An important role of the Secretary of the Interior is representing the interests of tribes in litigation against states where tribes may be barred by the 10^th Amendment from litigating directly. Although section 5 (designation of Department of Justice representative) seems to imply this responsibility, you may wish to consider specifying this representative role for the Trustee.

The process of establishing a roll is extremely time consuming and labor-intensive. The nine member commission needs to have an adequate budget, a basis for community input as to who the members will be, how the commission will be compensated, and what their term of office will be. In the Yurok Tribe’s situation, we had a five member Yurok Transition Team that assisted in the preparation of the roll. It was dissolved upon the election of the interim council, something that is not provided for in S. 2899. Although time lines in federal statutes infrequently are met, without them, the roll development process could take an inordinately long time. Native Hawaiians know their own community and should be able to suggest an appropriate time frame for the roll process.

As written, the process of appeals for membership decisions ends in federal court; is the federal court’s review a review on the full record (a de novo review), or is it one simply limited to determining whether or not the Secretary was arbitrary or capricious? Without a clear Congressional intent demonstrated, federal courts will simply apply the Administrative Procedures Act and its rather limited review standard. The importance of this question increases with respect to the Secretary’s determination that the governing documents are consistent with applicable law and the special trust relationship in order to ratify federal recognition of the Native Hawaiian governing body. If the Secretary rejects the organic documents within 45 days, what is the appeals process and what standard of review will the court use? This is especially important where the statutory standard provided is vague and without Congressional direction, because the courts will defer to the Secretary’s discretion in interpreting statutes that the Secretary implements.

The number of members of the interim council is not set in the legislation, nor is any process described for determining that number. I realize that issues of representation need to be worked out in the community, for example, the number of representatives, at-large membership, district membership, designated members or some mix, but generally the place for that is in the governing documents. In our case, we had a five member interim council elected at large, who implemented the process for developing our governing document, our Constitution. The Constitution provides for an elected seven member council, where the chair and vice-chair are elected at large, and five members of the council are elected from districts designed to reflect the historic and cultural patterns of our tribe even though the districts are of unequal sizes and voter populations.

S. 2899 and H.R. 4904 also limits the interim council to only those powers provided in these bills. We had a similar restriction in our legislation and, as such, were not able to contract with any federal agency for funds. As this was the case, we were forced to go back to Congress for an amendment.

With respect to developing governing documents, a most important thing we did was to encourage as much community input as possible. We established a community-based drafting committee; we held numerous community-based meeting; we polled the community on specific policy questions before drafting; and we utilized our attorneys as an integral part of the drafting process.

Finally, with respect to claims and potential land base, I understand that this bill does not directly address these issues. It does provide that the United States is authorized to negotiate an agreement with the State of Hawai’i for the transfer of land and assets to the Native Hawaiian government. Although not self-executing or binding on the State of Hawai’i, it is important recognition of this significant issue. In our own experience, we are still struggling with our claims issues, as well as trying to develop and appropriate and viable land base and adequate funding for our needs. We are, however, better able to address these issues as an organized tribe. Organizing our government has not automatically cured these issues. I would suggest at a minimum, with respect to claims, this legislation include a provision that makes clear that nothing therein waives any of the claims or can be used as a set off in those claims.

Distinguished Committee members, as you know, the issue of self-government and sovereignty is the most important one for Native people in this country. The survival of our cultures, our homelands, and our life-ways depend on our ability to control our own affairs and govern ourselves. The most basic of our inherent rights as Native people, sovereignty is the essence of our very being. The first and most critical step of lifting a people to the level of parity with other governments is recognizing the deep-seated right of our people to self-government. As President of NCAI, an organization whose primary goal is to assist indigenous people in the attainment of sovereignty, I commend you for your continual efforts in assisting our Native Hawaiian brothers and sisters in doing just that.

On behalf of NCAI, I thank you again for the opportunity to present testimony on this very important piece of legislation. In this era of self-determination policy, it is critical that Native Hawaiians realize their goal of sovereign self-government that they have been pursuing for the last century. NCAI believes that, by giving the Native Hawaiian governing board the duty and license enumerated in this bill, it will allow Native Hawaiians to create their own broad and encompassing version of self-government. NCAI and its 250 member Nations applaud the efforts of the Hawai’i Congressional delegation to introduce and enact this landmark legislation.

I would be happy to respond to any questions that you may have.