Senate Standing Committee on Hawaiian Affairs

Everyone to the joint, it's so joint that I have to actually read out the jointness. Committee on Judiciary, Committee on Hawaiian Affairs in conjunction with the Native Hawaiian Affairs Caucus for our info briefing here at 12:30 on the programs that were designed to benefit Hawaiians, both private and government side. First, because of the ongoing renovations in the capital, I just wanna say thanks to the sergeant at arms and the clerk's office for putting this all together for us.

If you look at the rooms around you, they're not anywhere near as good a shape as this, so they went out of their way to to be kind and let us have this info briefing today.

So for for that, I appreciate it. Appreciate you very much.

So my name is Karl Rhoads. I'm Chair of the Judiciary Committee for about three more weeks. Also from the Judiciary Committee is Senator San Buenaventura, and, this briefing is being conjoined jointly with the Senate Hawaiian affairs committee. Chair Tim Richards will not be able to join us due to scheduling conflict down on the Hawaii Island, and we are fortunate to have Vice Chair Lamosao presiding on behalf of the committee.

Chair, Acting Chair Lamosao, would you like to introduce? Would you like to? You don't have any member. No, you do. Yes. You do. Go ahead. Go ahead.

I only have one member present. Thank you, Senator Keohokalole, for being present here today other than myself.

Thank you. And the third convener is Senator Jarrett Keohokalole who is the Senate Chair of the Native Hawaiian Affairs Caucus. And if there's anyone you would like to introduce, please proceed.

No. Thank you for convening to this briefing.

My pleasure. Let's go over some logistics. This informational briefing is being streamed live on YouTube. You can find links to viewing options for all Senate hearings and meetings on the live and on demand video page of the legislature's website, which is capital.oy.gov. In the unlikely event that we must abruptly end the briefing due to major technical difficulties, if a future date can be arranged with the presenters and the other chairs, we will reconvene, and a public notice will be posted on the legislature's website.

Although with three weeks left in my term, I doubt that would happen if it falls apart. Briefing materials from today's presentation are linked from the briefing notice and will also be posted online at the senate JDC committee page. These can be accessed on the legislature's website, also at capital.hawaii.gov. Since this is an informational briefing only, and invited speakers will provide testimony to the committees.

There will not be any public testimony, though members of the public are always welcome to contact our offices with their comments and concerns.

Committee members will ask you to hold your questions until the end. My guideline is to keep the question and answer period portion to five minutes per member. Although, if there's only four of us here, we may be able to bend that rule. I just have a few remarks I'd like to make, and then the other chairs can make opening statements too if they'd like. My interest in this briefing on institutions.

My interest in this briefing on institutions and programs, both government ones and private ones, that were designed to support native Hawaiians is is that there is a complex history about their origins and the interplay with our current lives. I believe it's important to understand the unique historical context of the program since they're being challenged in the courts. Litigation, of course, does not happen in a vacuum. As we examine the history of the various programs, I hope to discuss why they are now being attacked.

I am less interested in the legal maneuvering.

I'd like to focus more on the why of the attacks as opposed to how. So I look forward to hearing from all three of our presenters today. Acting Chair Lamosao, I would like, would you like to make any introductory remarks?

No, Chair. I just wanna thank you for hosting today's very important briefing. I think it's very timely that we look into some of the programs and identify the reasons why and how we can help remedy that here in the state legislature.

Thank you very much. Senator Keohokalole.

Okay. Alright. Well, let's go ahead and move on to the presenters. I'd like to welcome to up our first speaker, Kaiali'i Kahele.

Alright. Usually, I can pronounce Hawaiian names, not always. Kaiali'i Kahele, who is Chair of the board of trustees for the Office of Hawaiian Affairs. Chair Kahele has served the state of Hawaii in many roles.

Most recently, he was elected OHAUD trustee for Hawaii Island in 2024 and then elected board chair. He previously was our colleague in the Senate here serving from 2016 to 2020, and then he moved on to Congress to represent Hawaii's second congressional district for two years. Chair Kahele is also a veteran combat veteran pilot and commissioned officer in the Hawaii Air National Guard, a a commercial pilot for Hawaiian Airlines, and a pretty good volleyball player is what I hear.

He has a bachelor's degree in education from the University of Hawaii at Manoa and a master's degree in strategic studies from the US Army War College.

And I will, the floor is yours, and I'll let you introduce your co speaker.

Alright. Well, aloha mai kakou. Hello. Good afternoon Chair Rhodes, Chair Keohokalole, Vice Chair Lamosao, and Senator San Buenaventura, and members of the Senate judiciary and Hawaiian affairs committees, and the Native Hawaiian Affairs Caucus.

Mahalo for convening this important informational briefing and for providing the Office of Hawaiian Affairs an opportunity to share our perspective on the growing legal and political challenges facing native Hawaiian institutions and programs. Senators, we gather today at a consequential moment in Hawaii's history. Across our state, native Hawaiian serving institutions and programs, institutions that have provided generations of recognized benefits to our communities are facing a growing wave of legal challenges. These challenges are not occurring in isolation.

They are part of a broader national movement questioning programs and policies designed to address historical injustice, remedy long standing disparities, and provide meaningful opportunities to communities that have experienced generations of discrimination and dispossession.

But Hawaii is different. Our history is different. And the legal and constitutional foundations of our relationship with the native Hawaiian people are fundamentally different. Native Hawaiians are not simply another racial or ethnic group seeking redress. We are the indigenous peoples of these islands with a distinct political history, an enduring connection to our ancestral lands, and a unique trust relationship recognized on the both state and federal law.

Our history includes the existence of an independent Hawaiian kingdom, the illegal overthrow of its government in 1893, the unlawful confiscation of the kingdom's public government and crown lands, the subsequent annexation of Hawaii without a treaty of annexation, raising fundamental questions about its constitutionality under US law, and the establishment of legal and constitutional obligations intended to address the historical injustices experienced by the native Hawaiian people. The right of indigenous peoples to self determination and self governance is widely recognized as a fundamental principle of international human rights.

And for native Hawaiians, that right is not simply an abstract legal concept. It is about our ability to determine our own future, to protect our ancestral lands, to perpetuate our language and culture, and ensure that future generations of Hawaiians have the opportunity to thrive in their homeland. Nearly two decades before Congress adopted the 1993 apology resolution, acknowledging that native Hawaiians never directly relinquished their claims to inherent sovereignty or their national lands, the people of Hawaii took an extraordinary step.

In 1978, through a constitutional amendment, Hawaii voters established the Office of Hawaiian Affairs. OHA was born out of a remarkable period of Hawaiian political and cultural reawakening. The nineteen seventies were marked by a resurgence of Hawaiian identity, language, culture, and political consciousness. Leaders such as Edith Kanakaole, George Helm, Haunani K Trask, Walter Riddie, Doctor Davianna McGregor, John Waihe'e, and Aunty Frenchy DeSoto, alongside many others, helped advance a movement that demanded recognition of native Hawaiian rights, protection of our ancestral lands, and accountability for long standing injustices.

This was the era of the movement to protect Kaho'olawe, efforts to reclaim Hawaiian homelands and a renewed determination among native Hawaiians to have a meaningful voice in decisions affecting their people and their future.

The creation of the Office of Hawaiian Affairs was a direct response to that movement. It represented an acknowledgment by the people of Hawaii that the state had an ongoing obligation to native Hawaiians, an obligation rooted in history, federal law, and justice. OHA was established as an independent political body within the State Of Hawaii, entrusted with the responsibility of bettering the conditions of native Hawaiians, serving as a co trustee of the public land trust, and acting as the principal public agency responsible for all native Hawaiian affairs.

It was also intended to provide native Hawaiians with a greater voice in the decisions affecting their lands, resources, communities, and future, while creating an institutional foundation through which they could exercise a greater measure of self determination. Importantly, Ojo was never intended to be the final destination.

Rather, it was envisioned as an important step along a much longer journey toward native Hawaiian self governance, self determination. Today, nearly five decades later, that journey continues, and the legal challenges before us underscore why that work remains so important. At OHA, we recognize that the current environment requires more than simply defending existing programs. It requires us to reaffirm the fundamental principles upon which those programs and institutions were established.

That is why the Office of Hawaiian Affairs Board of Trustees recently voted to restore Ea, self determination as a guiding principle of our Mana I Maliola strategic plan.

Following nearly ten months of deliberation and consultation with beneficiaries, an OWA committee of trustees and staff recommended that Ea not be treated as a single program or initiative, but rather as an overarching principle that informs all of OWA's work. From our financial investments and land stewardship, responsibilities to our advocacy, community programs, and institutional partnerships, self determination must remain central to our mission.

When we determination must remain central to our mission. But we also recognize that the future of native Hawaiian governance cannot and should not be dictated by OHA alone. It must be informed and shaped by the Hawaiian people themselves. That is why OHA intends to engage in meaningful community led conversations about governance, reconciliation, and the unresolved political and legal questions that continue to shape our collective future.

These conversations must take place in our communities through trusted relationships with respect for the diversity of perspectives among our beneficiaries. The future of Hawaiian people ultimately belongs to the Hawaiian people. And as we pursue that future, we recognize that our responsibility extends beyond protecting individual programs or institutions. It is also about ensuring that the state of Hawaii continues to honor the commitments it has made to its indigenous people. Those commitments are not separate from Hawaii's future.

They are fundamental to it. And with that, I'd like to turn to the Office of Hawaiian Affairs chief advocate, Lena Alele, for some additional remarks. Mahalo. Thank you.

Mahalo, Chair Kahele. Good afternoon, senators. Over the past year, OHA has prioritized consulting with beneficiaries about expiring military leases, ensuring the responsible stewardship of trust resources under OHA's control, including Kaka'ako Makai, and protecting ancestral lands such as the Northwest Hawaiian Islands. This is relevant to the to the date. This discussion to highlight OHA's continued role in facilitating native Hawaiian self government and self determination within our current legal structures.

In the mid eighteen hundreds, native Hawaiian self organized as a constitutional to preserve and protect their land, culture, and sovereignty within the US, within the context of US and global military and economic expansion within The Pacific. These forces eventually converged in the eighteen ninety three overthrow by which Queen Liliuokalani was deposed of her position as head of state and divested of the crown lands.

As recognized first in the Brown report and nearly one hundred years later in the apology resolution, native Hawaiians never directly relinquish their claims to their inherent sovereign type, either through the monarchy or through a plebiscite or referendum. On the contrary, the overwhelming majority of native Hawaiian citizens signed the coup a petitions delivered to Congress in 1897, formally objecting to these events.

Native Hawaiian practice of self determination and self governance continued through the territorial years and was a driving force in the passage of the Hawaiian Homes Commission Act, the inclusion of Native Hawaiians in the Admissions Act as beneficiaries of the public land trust, and the creation of OHA. At the state level, the 1978 creation of OHA was a watershed moment that also reflected strength that comes from diversity.

Rather than simply a legal mandate, the Post Plantation Society of voters came together through a grassroots, people driven process and made the democratic choice to enshrine trust obligations to native Hawaiians and OHA itself in our foundational legal document. Recognitions of native Hawaiian's unique status as indigenous people of Hawaii is part of our multicultural heritage as a state and part of our blueprint.

OHA recognizes and thanks this legislative body for its continued and unwavering support of Native Hawaiian programs, including through the passage of Act 32 this past legislative session.

Act 32 reaffirms the state's commitment to long term resolution of Native Hawaiian claims and to protecting programs that are deeply important to everyone in our community. The destabilizing effects of terminating or fundamentally weakening any of the native Hawaiian programs under attack are difficult to imagine, but would undoubtedly ripple through all public and private sectors of our state. And the deepest and most profound damage would fall on our most vulnerable populations.

Keiki, Kupuna, families struggling to afford housing, mothers and children facing health care challenges, and residents of underserved rural communities. It is with our joint obligations to these beneficiaries in mind that I thank you for today's discussion and your continued partnership with OHA.

Thank you, chair, for the opportunity for the office of foreign affairs to be a part of today's, hearing. We'd be happy to answer questions maybe after the other remarks from the present.

You're you're you're, excuse me. You're able to stay around? Yeah. Okay.

Great. Thank you. Next, we will hear from Professor Derek H. Kauanoe. He is an assistant professor of law at the William S Richardson School of Law at the University of Hawaii at Manoa and has written about and presented on today's topic in a variety of forums. Also a graduate of Richardson, Professor Kauanoe joined the faculty in 2022 and teaches course courses on torts, federal Indian law, and legal writing.

His scholarly research focuses on on indigenous self determination and governance systems. He previously served as governance manager for OHA and as a faculty member at the University of Arizona's indigenous people's law and public policy program. Professor Kauanoe has a doctorate juridical science from the University of Arizona's College of Law and received his undergraduate degree in political science from Hawaii Pacific University. Thank you for being here, and floor is yours.

Thank you. Good afternoon Chair Rhodes, Madam Vice Chair Lamosao, Chair Keohokalole, and Senator San Buenaventura. Mahalo for inviting us here today for this informational briefing. As was said, I do teach at the William S. Richardson School of Law, and while I do work there, I just wanna clarify that my comments and remarks here are made in my personal and private capacity.

My comments today, I think, are intended to really give a little bit of historical and political context for understanding native Hawaiian programs, dealing with health care and education. I will not be addressing any of the merits of the pending, lawsuits or, any litigation strategies. But, again, I hope to, kind of discuss with you the historical and political context.

In discussing that historical and political context, I think it's important to first start off with understanding that the native Hawaiian people, the native Hawaiian nation, preexisted the United States. And in preexisting the United States with different kingdoms on different islands, these independent sovereigns exercised sovereignty, their their sovereignty over lands, peoples, and resources.

And this is something that is inherent in their in their government structures. The Hawaiian Kingdom emerged, and I think, you know, some of this some of this history was already shared by Chair Keohokalole, but the Hawaiian Kingdom emerged as an independent nation state recognized by the major powers of the world at that time. And as an independent nation state, it grew into having a multi ethnic citizenry with three branches of government.

And while evolving into this type of governance structure, it still, protected the rights and interests of its Aboriginal population, native Hawaiians.

So for the next few moments, I kinda wanna briefly talk about, education and health care in the context of foundation, historical foundations that I would, you know, trace back to the Hawaiian Kingdom era as, again, an emerging sovereign, while also recognizing that education and health and well-being has been an important part of native Hawaiian society. During the Hawaiian Kingdom era, the government recognized the importance of a formal education. Now this was shown in statutes and in lawsuits or, Hawaiian Kingdom Supreme Court decisions.

The kingdom had a decentralized school system with local school boards and, Hawaiian language public instruction.

Today, we refer to these schools as public schools. If you look at Hawaiian Kingdom era documents, you'll see them referred to as the common schools. As indicated in a Hawaiian Kingdom Supreme Court case, known as Naone v Thurston. The Hawaiian Kingdom Supreme Court, acknowledged, that when the government passed legislation, the government recognized the role of private schools or what was then called select schools in the development of the kingdom and its policy on education.

We can think about schools like Kamehameha Schools as within those ideas of what the important role of private schools were during the Hawaiian Kingdom era.

But that lawsuit or that Supreme Court decision also recognized the unique treatment that the Hawaiian Kingdom as a nation state had towards its had towards its Aboriginal population. Talking about native Hawaiian health and well-being in the Hawaiian Kingdom context. Also, I think it's important to emphasize that native Hawaiians, again, during the Hawaiian Kingdom era exercised what's referred to as internal self determination and self governance.

In the 1863 Hawaiian Kingdom Supreme Court case known as Rex versus Booth, there was a challenge to a statute on whether, the legislative body could have legislation that was very specific to native Hawaiians and treated native Hawaiians as the aboriginal population differently from the non aboriginal subjects of the Hawaiian Kingdom. But this case is important as a as a demonstration of, again, aboriginal self determination and self governance.

And this is important because under federal law, there are indigenous nations that are recognized as as part of their inherent sovereignty of being able to exercise internal self determination and self governance, and the same applies within an international indigenous human rights context. And so I've talked for a few moments about some very specific court decisions that arose during the Hawaiian Kingdom era. And I think it's also important to understand some government commitments that have been made by the United States.

Mister Gomes will talk in more detail about the Hawaiian Homes Commission Act than I will today. And I only wanna briefly mention it now, for chronological purposes and understanding what has happened through with the United States from the time of annexation up to the current day. And so we can understand the Hawaiian Homes Commission Act as an expression of Congress as to its relationship to native Hawaiians. And then if we fast forward a few decades to the, Hawaii Admission Act, we see there again another expression of Congress's understanding of the unique status of native Hawaiians and what their relationship is to native Hawaiians and what the relationship with or in between native Hawaiians and the state of Hawaii.

And then in 1988, we can fast forward a few more decades. In 1988, Congress passes both the Native Hawaiian Education Act and the, Native Hawaiian Healthcare Act.

Both are very comprehensive pieces of legislation. And, both over time have been amended to, I think, grow on articulating what the position is and what the responsibilities are of Congress to native Hawaiians, in the realm of education and health.

But in those pieces of legislation and more specifically the native Hawaiian education act, Congress has made it very clear that when it extends services to native Hawaiians, it does it on the basis that native Hawaiians are the indigenous people of a once sovereign nation and that native Hawaiians' status is comparable to American Indians and Alaska Natives, which indicates that this is a political status that Native Hawaiians have.

And that's important for understanding these lawsuits that challenge these federally funded programs and even a private program as an exercise of indigenous self determination. So like I mentioned, both of these have been amended over time, and some of the more recent amendments have occurred after 1993 when Congress passed and President Bill Clinton signed the apology resolution.

And the changes in those, in those acts reflect the recognition after the apology, the role that the United States has played in the overthrow and what the impacts are in a general sense with regards to native Hawaiian health and native Hawaiian education.

And so we can see language that reflects that growing recognition of the impact of the United States and what those obligations are, for native Hawaiians. I briefly mentioned, indigenous human rights, and I don't wanna spend a whole lot of time, but I think it's important to understand if you're thinking about, these issues and these lawsuits in a historical and also a political context, it's recognized around the world that native Hawaiian, that indigenous people have a right to self determination and self governance.

And what that looks like depends on what the nation states do. Our state government has passed several pieces of legislation recognizing native Hawaiians as the indigenous people.

One example is Act 195. But the state has expressed this view in strong support of native Hawaiian self determination and self governance. Those are pretty much my remarks, and I look forward to any questions you might have later.

Great. Thank you very much. Our third presenter is Tyler Iokepa Gomes, currently the chief administrator for Kia'uahana Collective at the Hawaiian Council. Administrator Gomes oversees the organization's tourism division. He previously served as deputy director to the Department of Hawaiian Homelands, having been appointed by Governor Ige in 2019.

Administrator Gomes also worked for the Elemental Accelerator and as a deputy public defender for the state. He received his bachelor's degree in Olelo, Hawaii from the University of Hawaii at Manoa and his law degree from the Richardson School of Law. Administrator Gomes, the floor is yours. Thank you.

Hello, chair, vice chair, members of the committee, for the opportunity to come and speak with you today. Obviously, disclaimer, I'm not here on behalf of the Department of Hawaii Homelands or the state or the Hawaiian Homes Commission. Like Mister Kauanoe said, we're really just talking about historical context around the basis for the Hawaiian Homes Commission Act. And that might lend itself to some insight into the lawsuits. But I won't be providing any discussion around legal strategy or the lawsuits themselves.

Here we go. So, we looking at this from a brief timeline beginning with, Aina Ho'oku'ono'ono, which was the original homesteading program prior to the Hawaiian Homes Commission Act and then we'll come to present day. And there's a very bold disclaimer here that the recitation of history that I'm about to provide is difficult intentionally. In Hawaiian, we say...

Essentially, our path in the future is dictated by the way we look at the past. And so, some of the details I'll be discussing are a little, crunchy and not so feel good, but they're indicative of the times and who we've become as a state, as an agency, as a people.

And so, the most important part that I wanted to highlight is that in creating this trust, Congress, one, recognized that there was a cognizable harm to native Hawaiians, two, that the remedy was land, and three, The United States and the state of Hawaii bound themselves via compact because they recognize both that harm and that remedy. So, beginning with Aina Ho'oku'ono'ono, this was the territorial homesteading period.

If we go back to 1895 under the republic, Sanford Dole had taken what was the crown lands, government lands, put it into a public pool, then it began to be used for homesteading.

It would later be Professor John Van Dyke through, who owns the crown lands, to ultimately help us really see what happened with the disposition of all of those lands, but you can see the original impacts of pulling them and then their dispossession began back in 1895. There are a variety of things that happened, but I wanna highlight most importantly that, of the over 800 citizens who ultimately acquired tracts under that part of the program, Native Hawaiians only held 129 parcels.

So about 3,800 acres of the 20,000 acres awarded just in the year 1896. And in the year 1898, they only took 2,600 acres of the 9,800 acres that were awarded. So ultimately, the program was putting those lands into the homes of every, into the hands of everyone but native Hawaiians.

And so, what you see in 1911 is Prince Kuhio files a, he files formal charges against the governor Freer and alleges him of maladministration and favoring plantation interests. That criticism continues for a whole decade. Kuhio is in everyone's hair about Governor Freer and the government's failure to homestead properly.

On the screen, you'll see a screenshot from, Ka Nupepa Kuokoa, the issue 10/20/1911. They amalgamated all of Prince Kuhio's criticisms of the Governor, Freer, and the program, some of which are expected. The sugar industry was so powerful that they had infiltrated the government. Governor Freer had become indebted and, in some ways, overly deferential to the industry and ranching as well.

And in doing so, despite saying out loud his possession to see homesteading succeed, every one of his decisions lacked the political will to make sure that that happened properly.

Sugar revenue, while intended to be used for the benefit of even that homesteading program, was not being directed for homesteading. And because there were no alienation provisions against the land being dispossessed, you could buy your way out of your lease, what we would probably call lease to fee conversion now. They were watching plantations basically buy the leases out and privatizing what were intended to be public lands and being flipped for commercial gain.

And so these go on to become, I hope, very obvious justifications for why Kuhio advocated for what he did in the Hawaiian Homes Commission Act because he had over a decade of complaints about failures. In the campaign leading up to the Hawaiian Homes Commission Act, it was often referred to as the rehabilitation bill before it got the name Hawaiian Homes Commission Act, and that was a very prominent basis for why Prince Kuhio was advocating.

He felt that the native Hawaiian people had been unjustly deprived of their land, and so this was meant to rehabilitate them. Here on the left, you've got a screenshot from the star bulletin from 1920 in which Kuhio had been giving a speech and was quoted directly saying, too many Hawaiians have said in effect, give us the best land you've got, give us all the money you can, feed us on poi and fish, and we'll be happy.

I want to tell you that you will never, you never will succeed unless you get out and hustle. That's harsh words from Prince Kuhio. That would make a lot of Hawaiians today very deeply uncomfortable.

Are we in the same position to look at it from that perspective today? I'd argue not.

I think we have a much more socially equitable lens by which we approach homesteading, but this is really critical because Kuhio was being, I'd argue, slandered in all the other newspapers saying that he was going to harm native Hawaiians, and so the other English newspaper, the Pacific Commercial Advertiser, which was owned by Lauren Thurston, architect and participant in the illegal overthrow, the advertiser was refusing to publish any of Kuhio's speeches.

No mention of it and they would publish slews of articles accusing him of misleading native Hawaiians, leading them toward their end. And so he...

The Star Bulletin was one of the few records we have of quotes of him advocating for this bill and so he had to be firm in that because what was being said in the Advertiser was that he was promising native Hawaiians a life of gluttony and dependency on government and that Hawaiians would ultimately fail because of it and so he has to be very clear like there are obligations, expectations, standards that we're gonna expect from you.

And he does this across, the territorial government, across the islands, trying to explain to native Hawaiians why he was advocating for this bill. Sugar was a huge element in this fight back. Many of the articles and letters to the editor, the editor boards both in the English and the Hawaiian language newspapers were led by the ranching and sugar industries all to dismantle or prevent his bill from getting passed, and it ultimately does and goes to the floors of Congress.

I, you know, these are well established facts that he was a person of color and a predominantly, if not almost exclusively white congress in the '18, er the 1900s. And so, as a non-voting delegate, you know, he didn't have a lot of power, but he did have a lot of charisma and persuasive character.

In one session on the floor testimony on the bill, a congressman makes a joke at his expense and says, I've heard from one of our other delegates, McCandless, tied to ranching and sugar, that you just wanna give Hawaiians $3,000 so they can throw themselves luaus.

And the implication was not complimentary. It was meant to say, you're just promising Hawaiians lining up with their hands out, and you're gonna give them money because that was the loan that was given in 1922 was $3,000 to build your house. Those are the loans that the department's making, a lot smaller than they are today. But the joke happening in the session on the floor was that Kuhio was promising people free checks. And he got very perturbed.

And this is a quote from him. In my campaign, Senator, I said to the Hawaiians, do not ever run off with the idea that this bill is gonna give lands and money to you to do as you please with. Again, another statement that I don't think aligns with how we're dealing with homesteading today, but he had to demonstrate a hard line in order to negotiate.

Senator John Wise would also say that they had to compromise on this bill at the congressional level because I think he called us beggars going up there, and they had to negotiate what they could to get it out. So, of course, Delegate Kalaniana'ole had to take a hard line on this is not gonna be a handout program.

And that is then seen after the Hawaiian Homes Commission Act is passed. You see the early iterations of the Hawaiian Homes Commission making very strong positions in the sand with native Hawaiians about what would be expected of them. From, I think it's November 1921 to December of 1923 in Ka Nupepa Kuokoa, the Hawaiian Homes Commission takes out an entire page spread every single week for two years and two months. They lay out all of their intentions.

They lay out the minutes from the meetings every month in Olola, Hawaii so it's very clear.

This article that I have on the screen is the very first column published by the Hawaiian Homes Commission to the people, and it's encouraging them to prepare. But in the later parts of this article, there's an urging of frugality, financial readiness, things we continue to talk about today about what it would take, how much money you would need to have saved, placing the impetus on native Hawaiians to demonstrate readiness for this program.

We know from other newspaper articles that the eventual eight families who will go to Kalama'ula on Molokai had to demonstrate capacity, a willingness to move regardless of where their homestead was gonna be. They didn't have a choice. Again, very different from today, and I'm not saying we need to return to that model, but these were the restrictions that were in place in 1922 so that Congress didn't look at this as the handout program.

It was being mischaracterized as by the, the sugar and ranching industry. And then we jumped to statehood in 19, I'm gonna start in 1950 because that's when the constitutional convention happens, and that's really where the impetus for what becomes statehood starts. You get a lot of articles in the Star Bulletin about the Hawaiian Homes Act being an act of correction for injustice.

And while it wasn't unanimous in the state that the Hawaiian Homes Commission Act should be included in our constitution, There were a number of voices that were adamantly opposed to it on grounds that sound very familiar today in certain lawsuits.

Ultimately, the majority of our legislature... The territory legislature and the delegates from the constitutional convention agreed that this was to correct a political injustice, not a racial injustice. Both of these articles here highlight that challenge that was faced, and there was a particular Senator. I think it was Senator Nobrega who was so incensed by this. He was absolutely opposed to the Hawaiian Homes Commission Act inclusion it.

He personally went to Washington to testify on the floor of Congress on the hearings on statehood, in opposition to it. But more importantly, on this slide, Chairman, the Hawaiian Homes Commission Chairman, Victor Houston, was testifying before the Senate, and he called out two specific things that he wanted to put on the record, and they accepted into the record. One was a question that was asked of, would an act of Congress sitting apart, setting apart a limited area of the public lands of the territory of Hawaii for lease or occupation by native Hawaiians be unconstitutional?

You folks can review this because it's lengthy, but the answer is no. And they cite precedent based on the political relationship between Indian tribes as a one-to-one analogy of what they were doing with the Hawaiian Homes Commission Act.

Chairman Houston then goes on in a second session to, again, address this question of constitutionality, and he specifically cites an opinion from the Secretary of the Department of the Interior also conceding that they did not see violations of the fourteenth amendment, the equal protection clause, arguments that we're not unfamiliar with today, but had already been addressed by both Congress and the state.

Ultimately, one of the conclusions that was drawn was that a state may not engage in something like that, but the Federal Government could not be precluded from setting aside a state's lands for this federal purpose. And so in the agreement to statehood, what you get is cooperative federalism.

You get the state and the Federal Government agreeing to comply with the federal act and use these lands for these purposes, which brings us to present day. And these are not apples to apples comparisons. What I wanna highlight here is the issues that Kuhio faced in 1920 to justify the existence of this piece of legislation and the situation today to justify its continued existence.

On the issues of land, Kuhio's prime point to Congress was that Maka'ainana received 28,000 acres in the Mahele, a small minority of lands compared to what everyone else received. Our land issues today, we've got 30,000 applicants awaiting awards at Department of Hawaiian Homelands.

In the housing area, there was a lot of discussion amongst Kuhio and his supporters about the tenements in Kaka'ako, the tenements in Iwilei that Hawaiians are being forced into because they couldn't afford homes. The last point, in point in time count, 43% of Oahu's homeless population is native Hawaiian. That's today's housing issue. On the income issue, the Department of Interior made a finding that many native Hawaiians were in poverty. Today, the median household income for native Hawaiians is 55,000 against the statewide 73,000.

Health in 1920, we were the highest death rate of any ethnic group. Today, we're about eleven years short for life expectancy against the longest lived ethnic group. And as far as native Hawaiians, Kuhio's driving issue was that there were only 22,000 pure native Hawaiians remaining. And while there are many more native Hawaiians today, we're now faced with the idea that our exodus is net negative with 55% of native Hawaiians now living outside of the state.

Again, these are not apples to apples comparisons. This is simply to say that the justifying factors for passing the act were so severe and so concerning that Congress bound itself to it. Very similar issues face us today. We still have work to do. And so, the continuity of the Hawaiian Homes Commission Act in the face of whatever lawsuits are being put toward it, they are an act of rehabilitation for people who have suffered for more than 150, 200 years.

That concludes my remarks. Mahalo.

Thank you very much. Members, so the next part of the agenda is questions. Go ahead, Senator San Buenaventura. Lead us lead us forward.

Okay. Mister Gomes, could you please remain? And Professor Kauanoe, please come on up. And I'm probably gonna ask you a question, Chair Kahele, too. My question is regarding really the Civil Beat article.

Okay? Basically, saying that, you know, native Hawaiian programs are being targeted with all of these federal lawsuits. And I understand Professor Kauanoe saying that you're not going to say what position, we should be have, we should be having. But the Civil Beat article kind of implied that had we...

Had the Federal Government, Congress, passed the Akaka bill, we would have a better standing in being able to withstand all of these lawsuits against, and these cutbacks. What do you folks feel about that? I mean, is that implication, correct? And I see Trustee Akaka is also present here who is niece of former Congressman, Senator.

Before you answer, I'll give you a couple seconds to formulate your answer there. Just want everybody to know that the slides that were up on the screen, you don't need it. They're online, so you can look at them later. So no need to try to get the picture, a screenshot. Okay.

So back to Senator San Buenaventura's question. Yeah. Go ahead.

Take it away?

Sure.

But when you talk, if you could just pull the mic to you.

I think these issues are incredibly complicated. I will say that if there was passage of the Akaka bill, we would have, we'd be having much more nuanced discussions. But I think the important thing with, especially with regards to the Hawaiian Homes Commission Act is that, in and of itself, was an act of Congress.

And, Mister Gomes, I think, gave a very good, detailed history of what led up to that. And then even afterwards, what the understanding was when, when Congress passed the Hawaiian Homes Commission Act. So that's federal legislation. And they've specifically identified native Hawaiians and then defined who were eligible, who among native Hawaiians were eligible for that particular program.

And so, I think that's the point for starting at with regards to the Hawaiian Homes Commission Act, but then also realizing that even when Congress decided to transfer its responsibility for administering the Hawaiian Homes Commission Act and transfer it to the state of Hawaii at statehood, it still maintained some type of oversight in case the state breached its duties.

And so it's a little bit unique. And I would say if we think about it in the context of what the federal policy was during that time period, Federal policy with regards to indigenous peoples in The United States. The United States policy was, is generally understood as being one of termination when, and that refers to the Federal Government terminating its relationship with certain indigenous groups.

And that was done through very specific acts. In some ways, the Hawaiian Homes Commission Act or at least the, I'm sorry. The inclusion of the Hawaiian Homes Commission Act in the Admission Act as transferring. In some ways, that's consistent with the federal policy.

But what made it unique was Congress still had oversight. The Federal Government still had oversight.

I understand. Okay. That is a federal act. But had the Akaka bill passed, that would also be a federal act.

And I'm health and human services Chair, and I am super concerned about the cutbacks on the native Hawaiian health programs. And so, let's go. Mister Gomes, what do you think? Because I agree with you that, basically, the federal, especially with the midterms, we're gonna probably be seeing a sea change.

And there may come a time, hopefully, with a new congress that the Akaka bill may be more able to be passed. But the question then is, will it help us or hurt us? I mean, not us, but the native Hawaiian programs.

I think the Akaka bill as it was last written could have provided us some level of protection. It's hard to say if, okay, so, sorry. In the Federal recognition of Indian tribes, there's a whole bunch of ways they were recognized. Right?

By treaty, by executive order, by presidents in termination era. It's hard to say that the Akaka bill would have put on a one-to-one footing, native Hawaiians, the same exact status as Indians, mostly because it would have been an untested body of law, but I think you're right. It would have been beneficial.

We do have a section under the CFR that would allow us to obtain federal recognition without an Akaka bill, but that requires consensus amongst the native Hawaiian community, which as we know is not always...

So you're saying that the Akaka bill is not necessary?

Right now, no. You could achieve federal recognition without the Akaka bill.

Okay. And so, and I see Chair Kahele also nodding his head. And I see somebody, can I call someone from the audience?

No. Okay. Maybe not. Probably not.

So I take a nuanced view to federal recognition.

Hang on, just one second. So, this isn't a regular public hearing where everybody gets to talk. But if you wanna go speak to someone else, if you wanna talk to, Chair Kahele with your point, that might be a way to work around it.

But I don't, we're not opening it up to everybody. UNMTV. So, you'll have to talk to them, separately, and then we'll see how that goes.

No. No. I understand it's super, it's controversial.

There's no consensus within the native Hawaiian community, And it's good to hear that we can do it through, CFR with consensus.

So I just wanted to add.

But yeah.

When we look at the existing statutes, it recognizes, those statutes recognize native Hawaiians and the responsibility.

So I just wanted to add.

Yeah. Go ahead.

So, there is federal recognition. The nuanced view that I take is that the native Hawaiians do have federal recognition. What native Hawaiians do not have is a government-to-government relationship, and it has yet to be seen whether, specifically, a government-to-government relationship is actually required.

Can I ask a follow-up?

Go ahead. Please.

So, from my recollection of the history of federal Indian law in the country, there are periods where the US government takes a more expansive view of indigenous sovereignty, and then there are periods where it takes a more rigid viewpoint.

And in those periods where it takes a much more rigid viewpoint, when it starts ignoring the treaties and prior arrangements that they had made with tribes over the course of history, those seem to be the periods in which the more formalized government to government relationship becomes more advantageous for native peoples. This might be more of a political question, but I'm not sure exactly what period we're in right now. Could you share your opinion?

Yes. Yes. And I'll just say, our first premise, this isn't my opinion. We're currently in the policy era of indigenous self-determination. And so, I'll just briefly describe the policy eras, because these are generally accepted.

With regards to, indigenous peoples in The United States, the first policy era within The United States is referred to as the treaty era. And that's about from 19, I'm sorry, 1776 up until 1871, when Congress, passed a law stating that it would no longer enter into treaties with Indian tribes. That kind of long policy era overlaps with other policies. And so, the next policy era is referred to as the removal policy.

As The United States, started, expanding westward, settlers kept on running into and encroaching on Indian tribes.

And so that, you know, that's what brought forward this policy era of removal, trying to remove the tribes from their lands. And sometimes that was done through treaties. Sometimes that was done through wars. As they kept on expanding westward, it wasn't enough for The United States and the settlers that they kept on removing tribes, so they entered an era known as the reservation policy era. And oftentimes, treaties were also used to confine tribes to reservations.

And then in about 1887, with the passage of the General Allotment Act, that ushered in a new policy era with regards to The United States and federal and, Indian tribes, and that was allotment and assimilation. And so allotment sought to break down the reservation land base and it allotted to individual heads of households, parcels of land also while trying to culturally assimilate, American Indians into American culture. And so we got that from about 1887 until 1934.

And in 1934, Congress passes the Indian Reorganization Act, which is a repudiation of the previous policy. That lasts for a little while up until about World War II, where we get into what's known as the termination era that I referenced, around World War II up until some people say 1968, others say 1970.

But again, during that period, you had these policies that are kinda described as terminating the political relationship. And as I kinda indicated earlier, you had these specific acts, individual acts that terminated individual relationships. And then from about, so yeah, up until 1968, 1970, and then that ushers in the current era that we've been in, known as self-determination. Now, Chair Keohokalole, you're correct that there has been shifting policies. And I think the way that I describe these policies Kinda show how things have shifted.

And I think it is important for us to understand that we are in an era of indigenous self-determination. The scholarly research that I've done also kinda focuses on these other era, eras like termination, to explore questions of what did it mean for native Hawaiians during this period of time when statehood happened and the Federal Government transferred its responsibilities? How might the assimilation and allotment era federal policies, shape how we can understand the Hawaiian Homes Commission Act?

What I will say is that these are political questions. There is a 1913, United States Supreme Court case that I think, provides us with some way of understanding how, indigenous status is understood. And I'll just kind of briefly say, in this case called US v Sandoval, it involved a different indigenous group that were not part of The United States, but were, citizens of The Republic of Mexico before the treaty of Guadalupe, Guadalupe Hidalgo transferred certain lands from The Republic of Mexico to The United States.

And when those lands were transferred, along with those lands were also indigenous groups. And US v Sandoval is a case that dealt with that particular group and whether or not, for legal or constitutional purposes, they could be considered Indians, even though they were part of another country and citizens of that country.

In summary, what the court says is that it recognizes that the Federal Government has the authority and the power to get into fostering relationships with distinctly Indian communities. And it said that it has that power to do that over its original territory and subsequently acquired territories. This was written in 1913. And so by 1913, there are already 48 states. The last territory to The United States, would have been around either Arizona, Alaska, or both, in the 1860s.

The United States, at that point, was not expanding westward, because it had already gotten to the West Coast. But in 1898, Hawaii gets acquired through annexation. The same thing happens with Guam and Puerto Rico. And in those areas, you have distinctly indigenous communities.

And so the court deals with this question, recognizes that the Federal Government has this power, and then it specifically says that questions as to whether to get into these types of arrangements, the extent of those arrangements, and the duration of those arrangements, those questions are for Congress alone and not the courts.

And the only guide rail that they put up, the only guard rail that they put up, is that Congress cannot arbitrarily bring people within this power. They can't arbitrarily call a group Indian. And so, I think when we look at that, and we think about native Hawaiian history, the way that, Chair Kahele and the way that, Mr. Gomes has discussed it.

The way that Congress has treated native Hawaiians, I think based on those facts, leans very heavily that, those types of distinctions and their recognition is not arbitrary.

Now the interesting thing with these cases is that the Supreme Court, for most, if not all of its indigenous rights issues, have dealt with fully recognized Indian tribes that have governments. But there hasn't been any decision that said, you have to look one way in terms of what your structure looks like.

Other questions, Senator Lamasao?

Let me so it's a lot of information to synthesize on the fly. I mean, I guess I guess. Is it fair to say if you boil that all down that the Federal Government has recognized Hawaiians as a distinct political group.

It hasn't been done in the way that. It hasn't been done in sort of an all at once. In an all at once manner, which would be the result of, like the Akaka Bill passing. But instead, we have these data points that go, you know, this suggested, this suggested, this suggested. I think we haven't talked very much about the Apology Act.

I mean, if you read the Apology Act, it's pretty clear that there's a recognition that there's a responsibility there and also that Hawaiians are a separate entity. Is that is that a fair characterization or would you nuance that more?

I think that's a fair characterization. Again, the statutory language and the Native Hawaiian Education Act and the Native Hawaiian Healthcare Act or the Native Hawaiian Healthcare Improvement Act recognizes specifically that there's a relationship that Native Hawaiians are a distinctly indigenous community.

And especially in the Native Hawaiian Education Act that the status of Native Hawaiians is comparable, not identical, but comparable to American Indians and Alaska Natives.

And so to me, I think that when we think about it in the context of The US v Sandoval case, when Supreme Court says that Congress gets to decide not the courts, Congress gets to decide the extent of those relationships. These statutes tell us what the extent of those relationships are. And so for my part of the present day.

Well, I guess both of ours, they've, they have legislated for Native Hawaiian Education, Health Care, and Housing. And that's part of the extent that they've legislated.

Is it also fair to say that the different. I mean, there's obviously a number of different first peoples on the North American continent and here. And I realized it's very different history in how everybody got where they got. But it's also fair to say that the tribes and the Alaskans Natives, they didn't. They're not all recognized in the same way, I guess, that they've had diff.

Not only had they had different historical past, but they've also had different arriving at federal recognition in different manners as well. Is that fair characterization?

Yes. There's a fair amount of Supreme Court cases that rely on the language that Indian Tribes are not homogeneous, and they mean that both in the way that they're recognized and also in the way that they're treated. They're all very different. So yes, that's absolutely correct.

Tribes have come into their form of record. Political recognition in a multitude of ways over the last three hundred years.

Okay.

And then if I can also add. The relationships vary also. And that's why I think it's important to understand that, you know, Native Hawaiians are distinct from American Indian Tribes. But even when you look at American Indian Tribes and Alaska Natives, there are a lot of distinctions between them.

And so the argument, a general argument that comes up with regards to these Hawaiian programs is if you're not a federally recognized tribe with a government to government relationship, then you're not a political entity and you're something else. That something else may not necessarily be protected. But that binary actually is not reflective of Federal Indian Law. I mentioned that there's the Indian Reorganization Act.

There are tribes that organize under the Indian Reorganization Act and tribes that have not. There are tribes that have treaties with The United States, and there are tribes that do not. In the '19, in late 1970's, the Supreme Court said that tribes' inherent jurisdiction to or inherent authority to exercise criminal jurisdiction over Non Indians. It doesn't extend to Non Indians.

Now since the Obama administration, there has been developments that allow for tribes to exercise a very limited sense of criminal jurisdiction. Again, you have tribes that exercise that extent of criminal authority over Non Indians and tribes that do not. And those all sound like a bunch of binaries, but tribes have all of these different things that really, when you look at them as a whole, there's not one single model of what an indigenous group should look like.

And, Native Hawaiians, I would say, fall within that.

Now I also kinda wanna briefly say, Congress is recognized as having plenary authority over Indian affairs. Right? And if we look at that, Congress on the one hand, on one side, has the power to recognize tribes and then varying extents of their governing authority and their governing powers. And then on the other side, Congress can choose not to recognize tribes.

In between, Congress has done quite a few things. They've terminated tribes. I mentioned the termination era. Right? There is a tribe that was terminated, and then there's something very unique happened.

You know, I'll just summarize quickly. There was a tribe that was terminated by specific legislation. Their members continue to hunt and fish, and the state, prosecuted them for hunting and fishing in violation of state regulations. The tribe says, hey. We have treaty rights.

The state disagrees. Says, no. You had treaty rights. And I'm paraphrasing here. But they said you had treaty rights, but you've been terminated, so you no longer have those treaty rights.

Long story short, this case goes up to the United States Supreme Court. And in summary, the United States Supreme Court says it's true, they were terminated, but Congress did not abrogate their treaty rights. So they still have these treaty rights.

So again, you have another example where it's a little bit unclear. You have a tribe that doesn't have a government to government relationship because that was explicitly terminated, but they have treaty rights that have to be expect, that have to be respected. Right?

So you've got all these different variations. And so if Congress has the power to recognize an indigenous group and the power to not recognize an indigenous group, and then different ways that they do that.

And I argue that Native Hawaiians fall within that. And so Congress has the power, arguably has the power to recognize Native Hawaiians in the way that it has.

Let me, If it's okay with the other members of. We'll let you guys have a break, and we'll bring OHA delegation back up for a minute. And, but we'll probably come back to you in a few minutes if that's okay.

If you guys could come back up.

So, Miss Lea, it looked like you had a, you wanted to follow on the. On one of, on one of the points that we were just talking about? Or were you not?

Did I just see it out of the. I thought I thought I saw your hand go up out of the periphery of my vision, but maybe my my peripheral vision is not so good anymore.

I don't think I raised my hand, but I was nodding along in agreement. That were expressed about the diversity of modes in which Congress has exercised its authority to recognize indigenous peoples.

Okay. So with regard to OHA, which of course, was created in 1978, and of course, it's a state entity for lack of a better word. What's your view on or what's the base?

Is there a basis for OHA being viewed as the, as the sovereign entity? And I know this opens up lots of cans of worms within the community, but is there a basis for saying that OHA is the sovereign entity at this point?

Or one of the sovereign entities?

The term interim self governing entity, so we are acting as a holding trust vehicle for future decision making and reconciliation. So certainly, I think we provide a continuity of Native Hawaiian self government.

Has the Federal Government, do you know whether the does the Federal Government have a view of OHA at all, or do they just view that as a state thing and they don't really.

No. I mean even, Senator, as recently as last year's Defense Authorization Act, OHA was named the Office of Hawaiian Affairs along with the Department of Hawaiian Home Lands was named in federal legislation. The signature authorization act for the Armed Services Committees and the Office of Hawaiian Affairs was named as a consulting entity on, you know, issues that would be had on tribal native lands.

So Office of Hawaiian Affairs, I believe through, you know, the unique federal trust relationship that the previous speakers have talked about extensively between Congress and Native Hawaiian community and using Congress's plenary power to enact laws and legislation, you know, gives Native Hawaiians a unique political status distinct from race in this country. And as recently as last year, it is acknowledged all as.

So you view OHA's existence or the way the Federal Government has treated OHA as an additional indication as additional evidence that there really is. That the Federal Government does recognize whole alliance as a separate political entity.

Absolutely. And you know, like was mentioned previously, Congress has enacted over a 150 statutes. Signature bills being the Hohanim Commission Act, Native Hawaiian Health Care Act, Native Hawaiian Education Act that clearly and distinctly acknowledge Native Hawaiian's unique status and Congresses power to recognize that status through, you know, a number of very, very important federal statutes.

And you know, the advocacy that we have been working on in Washington DC is, you know, recently as this past year, has continued to educate members of Congress on OHA's role here in Hawaii. The people of Hawaii creating OHA in 1978, but ultimately, OHA's origins begin in the Admissions Act, which is a, you know, Congressional Act of Congress that explicitly when transferring, you know, almost 1,400,000 acres of land back to the State of Hawaii.

And creating the public land trust, you know, identified one beneficiary of the public land trust as being Native Hawaiians as defined by the Hawaiian Homes Commission Act. So the people of Hawaii's answer to the state's fiduciary and trustee obligations to a condition of statehood was the creation of the Office of Hawaiian Affairs.

And that has resonated in DC on both sides of the aisle, especially those that honor states' rights and the ability for states to enact laws unique to their histories.

Members, other questions? Senator San Buenaventura.

Okay. So, you heard my concerns are the cutbacks for that of the Native Hawaiian Health Programs among other benefits. Does, and it may be too early, and you can tell me it's too early. But does OHA have a position, especially with the potential for blue wave coming in during the midterms of potential policies or bills that you folks would advocate to protect these programs from more cutbacks as we really rely upon federal monies to continue for these things.

For these programs to continue?

Well, that's a great question. And our advocacy team is preparing not only for the convening of the 2027 State legislature, but also for the 120th congress that will be seated, you know, shortly after January. I think one thing that is important to distinguish, especially as it relates to to this particular hearing, is that these lawsuits against Kamehameha Schools, DHHL, and the Native Hawaiian Healthcare System, Papalokahi, they don't all involve the same legal question.

The Kamehameha Schools, you know, is a private charitable trust that is different than the other lawsuits against the other Native Hawaiian servant entities. You know, this legislature enacted act two this past year to help clarify that question, especially after Kamehameha decided to gift tuition and not not charge tuition to its students.

And so that is a distinct difference between the lawsuit against Kamehameha that was alleging a contract was being done between Kamehameha Schools and its students versus now the free tuition that Kamehameha Schools offers and that this legislature early in those legislative session last year addressed that, you know, characterizes the free tuition as a gift to the students.

And so in Kamehameha's argument, you know, this lawsuit that was really decided in the Kamehameha one case in 2006. And then when Congress passed explicit legislation in 2010, you know, renders this lawsuit as as mute and frivolous, and that should be dismissed.

So are we working on legislation? Not entirely at this time. I think one of the things that we could do is work together with the legislature that could put together almost a Native Hawaiian task force between the legislature and Native Hawaiian serving institutions that would look at and analyze every single federal law that benefits Native Hawaiians and how they are potentially vulnerable for challenges and lawsuits.

And then put together, a potential legislative package working together with our congressional delegation, which would be the tip of the spear in Congress, especially in a democratically controlled Congress to advance these issues in the upcoming Congress.

Okay.

Something for consideration.

That's a sort of follow-up. Thank you. Thank you. And thank you, Mister Gomes and and Chair Kahele on educating me about the CFR to allow for the indigenous potential recognition.

But my memory is there was an attempt, the about, I don't know, almost a decade ago, to try to get a vote in by the Native Hawaiians to determine whether or not they could have this indigenous right so that there could be this government to government type of governance or or relationship with the US government. And that, my memory is that kind of collapse when the US Supreme Court basically prevented the vote to being limited to only those

State funds.

Was it because of state funds? Is there any movement? What I'm trying to figure out, is there any movement to try to figure out whether or not we can get around that Supreme Court decision to or as part of the legislative package to try to fix or, that CFR so that we can have the Native Hawaiians vote to determine whether or not the self determination path is the correct path to pursue.

Well, Act 32 that was passed last session with the 55,000,000 to support also the continued work of the public land trust working group. I would say that's a forum in which we are gonna be considering also some of these questions that are being raised

As far as next steps. And that'll have full transparency for the legislature as well as our beneficiaries.

Okay.

Okay.

There is a process like Tyler mentioned. Through the Department of Interior that was, you know, essentially administrative rule making that was done just before the Obama administration left office that provides a pathway to pursue ultimately what the Akaka Bill was attempting to pursue. Right? Which is a formal process for federal recognition of a reorganized Native Hawaiian self governing entity. So that is on the books.

But, you know, one would argue that administrative rules are even more subject to lawsuits than an actual act of Congress that was passed by Congress. That would probably survive

So is that something you both challenges. OHA would consider? I mean, I know it's early because it's. We haven't reached the general election yet. And is that something OHA would consider to at least tighten it?

Because it seems to me that Native Hawaiians should be allowed to vote to determine whether or not self government, at least through the Akaka pathway, is something that they would want for a Governor, for a government to government type of relationship with the Federal Government to further protect. And it, at least they should, you know, choose one way or the other. And that way we could figure out a path forward.

So the, you know, it must be a little

So dispatch work type of things that's happening right now.

You know, over a decade ago, if you remember, that was state.

That's the one she's

That's what she referred to. And so there was an, there was a convening of Native Hawaiians, and they, for a number of days worked on and promulgated a constitution that was ratified.

Sorry. Can you just pull up mic.

That was ratified at that convening. The next step would be the, ratification of that constitution by the Native Hawaiian people. And if a majority, voted to support that constitution, then that using the Department of Interior's federal room making process could be a pathway to self governance and federal recognition.

But in absence of that, and even the Akaka Bill's failure to be adopted by Congress, this relationship between Congress and the Federal Government and Native Hawaiians just predates the Akaka Bill by generations.

Federal laws that have been passed that recognize the unique status of Native Hawaiians and probably best articulated. And Derek mentioned, a couple important passages in the Native Hawaiian Education Act that clearly explicitly acknowledge Native Hawaiians as a political status, not race.

The comparable status is comparable to that of American Indians and Alaska Natives. These are important provisions that Congress has already passed and that we continue to lean on, and that differentiates Native Hawaiians from other ethnicities, whether it's through race or affirmative action.

Thank you. May I ask a follow-up?

Yep. Sure. Sure.

So to the, to Senator San Buenaventura's question about what could potentially be undertaken here in Hawaii. Chair, you mentioned the reconstitution of your a program. Can you, can you talk a little bit more about OHA?

You know, the Mana Ni Maliola, OHA strategic plan adopted in 2018, 2019 is a 15 strategic plan. And, the Board of Trustees at that time, excluded, not entirely, but maybe minimized the importance of AI and self determination in OHA's strategic plan in the five year reassessment that the board undertook last year and hearing from our beneficiaries.

And I'll let Leina'ala touch on that a little bit. It was emphasized to us how important AI was, especially in the face of all of the lawsuits against Native Hawaiian programs. And so we, worked on it for ten months, and it is now a major cornerstone of our OHA strategic plan. And so I think be.

Given that has now been adopted just recently, and the question you asked, and upcoming state ledge, upcoming new Congress, gives us an opportunity to, you know, advance that within the Office of Hawaiian Affairs and dedicate resources in our budget to, you know, deliberately advance, yeah, throughout our communities.

So thank you for that, Chair. Because if I, If my memory serves me correctly, the OHA's emphasis on self determination seems to have been deemphasized after the lawsuits around the vote. That was, you know, overturned because the court found that state funds could not be used in that way. It does seem like OHA has de emphasized, you know, the self determination discussions.

And so I think to Senator San Buenaventura's point, if OHA is now reengaged in that, then let's have more discussions going forward about how we can potentially work together at the legislative.

At the legislature on areas that might help this conversation.

Can I just add something?

I have a follow-up question for Professor Kauanoe.

Yeah. I'd like to bring him back up. Yeah. But if you'd like to follow-up, go ahead.

Sure. I was just gonna emphasize that, and the reason I spoke about the public land trust working group as as one form is because we do wanna lead with beneficiary consultation when we talk about self governance. So we wanna do the dual track of both working with the legislature, but also making sure that when we engage in this space that we are really led by the community.

Sure. Questions on the bill? Yeah.

Okay. I did wanna follow-up on. In your Congressman hat. When you were in Congress, I realized it was only two years, but it's still, it's an area that you would have been paying special attention to, I'm sure.

Was there, were there any attempts to. Do you recall any bills being introduced by any of your colleagues to repeal the the Hawaiian Homelands Commission Act? Or what is, It's not.

No. And matter of fact, the only thing I can remember is my bill, that I authored to basically enact what the state legislature passed years ago, and Governor Ige signed into law, which is to lower the succession to ship blood quantum from 25% to 3%.

And then that and that never... And that didn't make it through?

It made it through the Subcommittee on Indigenous Affairs in the Natural Resources Committee in the House of Representatives, but was never given a full vote in committee.

And so it never made it to the floor of the House.

Okay. So,

Partly because the Office of Native Hawaiian Relations and the Department of Interior, essentially, the Biden administration did not support lowering of the blood quantum to 3% even though the people of Hawaii through its elected representatives had passed that legislation.

The Governor had signed into law, and the consent of Congress, as provided in the Hawaiian Homes Commission Act, amendments to the Hawaiian Homes Commission Act must receive the the consent of Congress.

It should have it should have been done. And it is it is not.

One of the implications of that then is that the Hawaiian Homes. I can never get the Hawaiian Homes Commission Act. Congress has never reversed, they've never, they've never said, you know what?

We no longer have this obligation. This is an obligation that we took on as the Federal Government. Once we annexed the the islands, and then we gave it to the state at statehood, and we required them to take it. But because of the way the legislation interacts between the state and the feds, the Federal Government has never said, you know what? We don't owe you any of that anymore.

Is that is that fair?

That's fair.

Okay.

That's completely accurate. They've never attempted to repeal it. As we all know, it was a condition of statehood. The administration of the Hawaiian Homes Commission Act by the new State of Hawaii. It is why the Department of Hawaiian Home Lands was created almost immediately after statehood.

But, Congress still retains the authority to consent to any changes in the Hawaiian Homes Commission Act as requested by the state.

Alright. Any other questions for this group?

No.

Thank you very much. Thanks for being here. Can we have Professor Kauanoe and Mister Gomes back up again?

And you had a question, I think, Senator Keohok. Yeah.

Thank you. Professor earlier, if I heard you correctly, what I thought I heard was that a formal government to government relationship isn't necessarily a binary indicator of recognition. And then we've just had this discussion about this continuum of federal actions.

It's the passage of statutes, resolutions like the apology resolution, and then even the inclusion of new language, like in the National Defense Act authorization as recently as last year, could potentially be or are, likely indicators of an ongoing relationship and and recognition. I'm wondering if you could speak to the action within the state, in relation to the native Hawaiian people as an indicator.

We have the passage of act 195, the state recognition of native Hawaiians. And then to OHA's point, the 1978 constitutional, amendment that created OHA as as in their words, rather than a legal mandate, voters came together and made a democratic choice to enshrine trust obligations to native Hawaiians. Chair Kahele mentioned states rights, which is part of the law that I never thought I would be arguing in favor of so often.

But I'm wondering if you could help us understand, you know, I mean, if the cockapill is not the be all end all, and if there are lots of examples throughout the country's history of, the US government maintaining a relationship with native peoples, and we have this whole long history That's informed by that that sort of ebb and flow of how the government treated and and dealt with native peoples. What what role does the state's action in relation to native Hawaiians play in this conversation?

What what role does the state's action in relation to native Hawaiians play in this conversation?

Thank you, Mister Chair. It, I guess I'll start off by saying it gets pretty complicated, but I think the state has a very important role. I think the states has consistently, not just with act 195, but as you indicated, you know, the 1978 constitutional convention.

If I were to summarize how I view the state's position with regards to native Hawaiians, I would say that the state has expressed the view through various pieces of legislation of respecting and protecting native Hawaiian self determination and self governance. I think in the in the 1990's, the state also passed an act that had anticipated a future native Hawaiian government that it would transfer.

Some friends and I have debates in terms of what the legislature actually said, but an act was passed. It's part of the Hawaii revised statutes that the islands and resources surrounding Kaho'olawe, that management would be transferred to a future native Hawaiian government.

I think when we combine that with Act 195, Act 32 that was mentioned, just a few moments ago, the recognition of native Hawaiian traditional and customary practices, and several other pieces of legislation including, I think around 2000 or 2001, Act 302. If I'm remembering the act correctly, the act, 1 of the things that it did was it recognized democratically elected Hawaiian Homestead Associations as having.

They could be delegated power from the Hawaiian Homes Commission, very limited powers, in a way that favored a growing type of self determination, self governance for home centers.

And so in general, I would say that's the state's view. And I think, compared with a lot of other indigenous groups on the continent, that's a better position to be in. There's an 1887 United States Supreme Court case, or maybe 1886. 1 of those years. And the Supreme Court described the treatment, described the people of the states as among the deadliest enemies of the Indians because they would kill American Indians.

The history of laws and treatment of native Hawaiians in the state or in the territory, it's not perfect. But the... That really... It hasn't been as deadly as that. If we think about the early eras of the territorial legislature, there's an archivist at the State Archives Building, Ron Williams.

He's written an article that was published in the Hawaii Journal of History that talked about the first territorial legislature. And if you look at that, you can see that native Hawaiians, after the overthrow and after the annexation, reorganized to better exercise self determination and self governance. And it's... To me, I think it's, like, actually remarkable considering everything that happened. They reorganize and then they take over.

They basically prevail in the first territorial elections for Senator... Territorial senators in the House of Representatives. And then, Mister Gomes talked about, Prince John Akohio Kalaniyanore. If you think about his role in in armed insurrection to restore the monarchy, and then he becomes the first elected non voting territorial representative. It's remarkable that native Hawaiians were able to reorganize that way under those circumstances, and then find a way to exercise self determination and self governance.

And then they do it and create a party, the Homebrew party. That's an exercise of ongoing self determination, self governance. And I think that's one of the things... I think when we consider these issues and how courts will look at that, it's gonna be very important that courts look at the context and the history that makes native Hawaiian... That make native Hawaiians distinct from other indigenous peoples.

And hopefully, they'll understand why we're organized differently, how we exercise that self determination, that indigenous self determination and self governance differently. As articulated through the state, no other tribe... Well, I wanna... I don't wanna say no other tribe, but most tribes have their own government. They don't have the type of relationship that native Hawaiians have with the state.

And our current relationship with the state, I believe, is completely rooted in our history as a Hawaiian kingdom when native Hawaiians were actively involved in that government as members of the legislative Assembly and the executive branch, which would be the, the monarch. And so, again, I think that unique history and

the continuing, recognition

by the state of native Hawaiians as its indigenous state of native Hawaiians as its indigenous population. And I wanna say in act one ninety five, there's language in there that recognize... That acknowledges late... That I specifically draws from the UN declaration on the rights of indigenous peoples acknowledging that indigenous peoples have the right to self determination and self governance. So I think that helps, but it's often times not enough to overcome these lawsuits.

And so I think... I don't wanna say that... I don't wanna leave anyone with the impression that a government to own relationship isn't important. It is very important. All I'm saying is the courts have not had a case yet in this way where all other models cannot be considered as having that, as creating that political relationship.

Okay. Thank you.

Other questions?

No. But I'm gonna have to be going soon.

Let me follow-up with the... Mister Gomes on the on the d h... On the DHHL side. One of the question I asked Congressman Kahele was, you know, is is there been an attempt by the... By Congress to just get rid of the Hawaiian Hawaiian Homes Commission.

I never get the number to... HHCL or HHLC. I mean, getting dyslexic in my old age. Anyway, so, you know, you talked to... You...

On the last page of your presentation, you you looked at sort of comparison between 1920 when the Hawaii Home Lands Commission or when the when the act was passed and now. One of the... I I guess I'd like... If if you can give a little... Give us a little more detail about what delegate, Kalani Anahole was looking at and and why he was still concerned.

And twenty two thousand five hundred pure pure native Hawaiians remain. Is that a lot or was that way down from what... You know, without context, I don't know what that...

If you consider conservative estimates of about 300,000 native Hawaiians existing at the time of Cook's arrival to more ambitious estimates of a million native Hawaiians, yeah, 22,000 is

Really bad.

Horrific.

Okay.

And so, I mean, he's looking at avoiding systemic elimination of an entire group of people and all of the contributory threats to it, which is why even today, discussions around education, health, and land are so intertwined because they are all co indicators of the health of a people.

Okay. So so, basically, what what what the prince was looking at was... I mean, almost... He he was... They were concerned about an extinction event, basically.

And so this is the response they came up with. And I think something I didn't realize until we were prepping for this hearing was that the... At least parts of the of the Hawaiian Homes Commission Act was... It was a compromise. I mean, the the 50% blood Quantum was a comp...

Compromise. So they they went up to Washington. They got the best deal they could to try to address this situation. But as I asked congressman Kahele, it's never been repealed. So there's still a sense there that I guess I guess it's...

The question is, in your view, is there still a sense, even in Washington, that there is a is a problem to be addressed?

I think it's not just one state bill that's sitting up there waiting for congressional approval. There's dozens now that are just sitting, and they're... Some of them are very old. And I think what that's more indicative of problem is that the tensions that have occurred between parties have become so tumultuous. No one is willing

Just can't

pass it. Bring this... Well, not can't pass it, but no one is willing to bring it up for fear that a more conservative party might just take it as an opportunity to eviscerate the whole thing. Whether or not they could pull it off, that's... I mean, that's for political scientists to debate.

But I think that's a very real fear across the board is what happens when you open the box up for evaluation for something as small as a really common sense. Let's reduce the blood quantum for successorship. For us, that makes a lot of sense. You know, what opportunities would a conservative or even, call it out, a racist member of Congress take once the Hawaiian Homes Commission Act is open and available to be amended in all kinds of ways.

I think that's a very real fear for observers and for people in Washington.

So basic... But but but the but the opposite has not happened, which is it it it hasn't been it hasn't been eliminated. It's still there. I mean, you could theoretically just get rid of the whole program.

I really hope this table is made out of wood. But... Sure. Yeah. It hasn't been taken away.

Not

Not yet.

yet anyway.

I mean, I hope it doesn't. Let me ask you something, professor. So on the on the Kamehameha School side, is is the... Is it fair to say that... I'm just...

I can't remember anything today. Bernice Bernice Paolo Bishop, when she was was it... Is this about the same time frame that she was looking at the... Is it... Was...

Were her efforts with Kamehameha Schools in response to the same situation that Prince Gojia was looking at? Or was he... Was she earlier?

Yes. Well, she was certainly earlier than Okay. Prince, Juna Kuhio Klaianole, but, I think... So I think... I believe her will was written in 1884, and then the schools get established in 1888...

1887. But, you know, once the Hawaiian kingdom emerges as, you know, as a consolidated kingdom with consolidated power, you started to also see, like, an influx of people coming to the Hawaiian Kingdom. And with that, you started to see a bunch of different things. Other researchers have talked about how, you know, with diseases, you had fewer people who could work the land, and then you started to see more of them move from rural era... Areas to, you know, town.

But they were still dealing with issues, health issues, education issues. And so earlier, my remarks talked about two Hawaiian Kingdom Supreme Court cases. And so I think that's an important context to also understand that, the Hawaiian Kingdom, even as a nation state that was considered a coequal sovereign alongside The United States, as was mentioned in a ninth circuit court of appeals decision, they still saw that there were issues regarding need of fine health and education, and then they passed laws regarding it.

Now the cases that I refer to are, like, very specific. Nona v Thurston deals with...

To some degree, how the Hawaiian Kingdom was going to include the funding of private schools when they already had what were called common schools. And then there's also this other case that I talked about that dealt with health also. And I mentioned it in the context of this Rex versus Booth case kinda describes a situation where native Hawaiians exercised what we refer to what we refer to today as internal indigenous self determination, self governance. And what that really means is in...

Internally governing themselves, passing laws that apply exclusively to themselves.

And they did that for, in that particular case, health reasons. They were very concerned about... Had health concerns that they also acknowledge may not have been the same health concerns for other Hawaiian Kingdom subjects who are not Aboriginal subjects.

Jude? I just had one thing. Yeah. Included in the will, there is a directive by which she encourages her trust to be administered for the benefit of indigent and orphaned native Hawaiian children. And I say, I think that's also an indicator that the same socioeconomic issues that Kuhil were considering...

Was considering in 1920, she was also thinking about in 1884.

Oh, that was my next question. Did she did she did she feel like she was responding to a crisis? Or was it more of a maternal, like, I wanna be sure my people thrive in the future.

I think it's in the vein of the concept of Opu'ili'i, and that being of chiefly lineage, she probably saw it as her responsibility. She turned down an opportunity at the throne, and so I think this was more so her using her resources as a form of good governance even though she rejected formal governance, potentially.

So so so in the in the in in the forty years or so between the establishment of Kamehameha or Bishop of State and and the the 1920 passage of Hawaiian Homes Commission, the the situation for Hawaiians got worse. Is that is that fair to say? Or what... Or or or or was or was it already on the, you know, going from three hundred thousand to 02/20/2000, had that already begun by the time?

I'm just trying to figure out whether the, you know, sort of what the the mindset was at the time and whether Bernice Poway Bishop was not as concerned about the the immediate crisis and more...

Just more forward looking, but... Or whether it was all part of the same onslaught.

Population decline was already in place. This is not far off from the Bayonet Constitution depriving Klockowa's agency as the sovereign. This isn't that far off from the overthrow. So the same political factors are in play, and that industry is dictating what government is doing at the expense of the native people. Education in the form of an...

I mean, there just were... There were other private schools that gave, you know, quality educations to other students, and I think she wanted an equal shot for native Hawaiian children.

Okay. Fair enough.

Can I

can I?

Just just to clarify. Okay. The latter half of the eighteen hundreds in Hawaii was a period of wholesale population collapse in the native Hawaiian community. Is that fair to say?

Aye... Yeah. I think those are the exact

words The writings of even the the writings of even the the members who who initiated the annexation spoke of the extinction of native Hawaiians as an... As a certainty.

That's right. Yeah.

And so that was the the period in which Pauahi pursued the establishment of the trust. The Kuhio period was arguably a a period after that. But the eighteen eighties were a period where many of the moneyed white class considered the ex... The extinction of the native Hawaiian race as a certainty. Is that fair to say?

Yeah. Absolutely. When Lauren Thurston ended Kanu Pepeko Ocoa in 1924, he commended all native Hawaiians for giving up their language and learning English. And what a shame it was that he was ending the last great native Hawaiian publication because they had successfully assimilated all native Hawaiians to learn English. And all...

I mean, he says in the article, all of the kupuna who never took advantage of the opportunity to be great Americans, c'est LA vie, in '19... In the discussion at...

In Congress on the Hawaiian Homes Commission Act, in the the discussion about one thirty second versus 50%, white men from Wisconsin are throwing up like, well, if they're one thirty second now in ninety nine years, they may as well, like, they're just white at that point, because that's the only race they could possibly be intermarrying with in their minds. They had already presumed, like, these people are not gonna last for ninety nine years, let alone a hundred year extension. So what's the point?

Senator Wamsen.

I just wanted to go back to... So if we... If the Native Hawaiian population did have that recognition under the CFR and have that government to government relationship, so would, like, the common schools, as you mentioned, like, how would they be, like, funded, and and how would they withstand some of the lawsuits that we're experiencing today? How would how would that, be different if they did have that recognition under that c

CFR. I'm going to I saw her looking at me, so I wasn't sure. I thought that meant she was asking me. So it's been a while since I've looked at the CFR language, but one thing that I do remember is that it was very clear that a native Hawaiian entity that goes through that, administrative regulatory process and attains recognition, that did not automatically bring native Hawaiians or that entity, within other laws of Congress. So it wasn't clear, that...

Well, I don't wanna say it wasn't clear, but my recollection without having looked at the language recently, would indicate that if that's accurate if my recollection is accurate, that native Hawaiian government would not automatically get funding from the Federal Government. Within the Federal Government. There is, I think it's called the Bureau of Indian Education, and so they get funding. And, my recollection is that that government may not necessarily fall into that. But I think it's a it's a it's a important question.

Yeah. Same thing. But I would probably, if we understand what was then referred to as the common schools to also mean public schools today, I think what you're really, you know, maybe at least thinking about is, you know, what might be the role of native Hawaiian charter schools and maybe Hawaiian language immersion schools.

And so I think that a federally recognized native Hawaiian government would be in a better position to advocate to Congress for funding to help support native Hawaiian education in the context of those schools. But I also want to, you know, remind us that there is a native Hawaiian education act, and it could be interesting to see, you know, what a native Hawaiian government that's been federally recognized by the administration, how that might work with existing laws and funding mechanisms.

And I'd also add that from, like, an economics perspective, the federally recognized Indian tribes who are successful have found... I mean, that is self determination. Right? It's figuring out how do we economically solvent. And so for the tribes who have done well, it's not just a dependence on the Bureau of Indian Affairs or the Bureau of Indian investigation...

Of education to provide them resources. They have to find a way to govern themselves that creates revenue that benefits their citizens for health, safety, well-being. And then I would assume the legislature would wanna give the remainder of the five f funds to the government, you know, everything that's not been paid out yet because that would be the logical place for it to go, if not the office of fine affairs.

Thank you.

Thank you. Other questions? Well, if not, thank you everybody for being here. I really appreciate it. Senator Keohokalole, do you have any final remarks you'd like to make?

Well, I'd like to thank you for convening all of us and having this really timely discussion. And, thank you all to all the presenters and everyone who joined us today for participating in it. Let's let's not it not not let it be the last, discussion that we have on this since there are, so many significant actions that are awaiting resolution in the courts. Thank you.

Acting Chair Longstaff, any closing thoughts?

I just wanna say thank you, Chair,

all the presenters that came out today. This was a very fruitful discussion. I just wanted to say thank you so much for your time.

and to

Thank you. So this concludes today's informational briefing. The video of the briefing is available on the Senate's YouTube page. Information about this and other JDC briefings can be accessed on the Senate judiciary committee's website as part of the legislature's website. So thanks again, everyone, for being here.

Thanks to the presenters for taking time out of your day and for all the prep work that goes into this. And, thank you, everyone. Mahalo. Mahalo nui. We are adjourned.