Equal Protection and the Special Relationship: The Case of Native Hawaiians

Yale Law Journal

Volumn 106, Issue 3, 1996, Pages 537-610

  Benjamin, Stuart Minor ^a  

^a NONE

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EID: 0040565807     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797306     Document Type: Article

References (373)

1. Like many commentators, I generally prefer to use the term "Native American" rather than "American Indian" or "Indian." Substituting "Native American" for "American Indian" in this Article would create difficulties, however, because the Article analyzes whether Native Hawaiians have the same constitutional status as tribes of American Indians, and "Native American" is frequently used to encompass both groups. A related terminological issue is that the constitutional provision on which the special relationship is grounded, Article I, Section 8, clause 3 gives Congress authority over "Indian Tribes." See U.S. CONST., art. I, § 8, cl. 3; infra notes 24-29 and accompanying text. This Article examines whether Native Hawaiians are an "Indian Tribe[]" for constitutional purposes, so substitution of a different term for "Indian Tribes" would not correspond to the crucial constitutional language. For purposes of clarity and simplicity, this Article will use the term "American Indians" to refer to the descendants of the original residents of what are now the lower 48 states; "Alaska Natives" to refer to those descended from the original residents of what is now the state of Alaska; "Native Hawaiians" to refer to the descendants of the original residents of what is now the State of Hawaii, see also infra note 6; and "Native Americans" (or "native groups") to refer to all of these groups combined (that is, the groups originally residing in what are now the 50 states). Also, because this Article considers what is (and is not) an "Indian Tribe[]" within the meaning of the Constitution, U.S. CONST. art. I, § 8, cl. 3, it will, in referring to the constitutional standards, use "Indian" and "Indian Tribes" as terms of art.
2. Morton v. Mancari, 417 U.S. 535, 552 (1974), was the first Supreme Court case to utilize the term "special relationship" to refer to the relationship between the federal government and Indian tribes. The Supreme Court (and other courts) have since used the term in a number of cases, and it has become a commonplace phrase. See, e.g., United States v. Mitchell, 445 U.S. 535, 546 n.7 (1980); LaPier v. McCormick, 986 F.2d 303, 305 (9th Cir. 1993); Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1432 (10th Cir. 1990). Outside the equal protection context, the Court has also referred to a "trust relationship" between the federal government and Indian tribes. See, e.g., County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) ("The canons of [statutory] construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians."); United States v. Mitchell, 463 U.S. 206, 226 (1983) ("[T]he existence of a trust relationship between the United States and an Indian or Indian tribe includes as a fundamental incident the right of an injured beneficiary to sue the trustee for damages resulting from a breach of the trust."). In fact, "trust relationship" is the more common phrase among commentators. See, e.g., FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 220-28 (Rennard Strickland et al., eds., 1982). Because this Article focuses on the application of current equal protection standards to programs singling out Native Hawaiians, it uses the term that the Court used in Mancari, namely, "special relationship." However denominated, the concept, as implemented in Mancari and its progeny, is that there is a relationship between the federal government and Indian tribes under which the federal government can single out Indian tribes for different treatment without triggering heightened scrutiny. For more on the constitutional grounding of the special relationship, see infra notes 24-29, 35-36 and accompanying text.
3. See Mancari, 417 U.S. 535; United States v. Antelope, 430 U.S. 641 (1977); see also cases cited infra notes 43-44.
4. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
5. References to "singling out" groups and "different" or "special" treatment often carry negative connotations, but no such implication is intended here. This Article uses those terms simply to clarify that the focus is not on programs that apply to all persons with equal force but nonetheless have a disproportionate impact on Native Hawaiians, but rather on those that specify Native Hawaiians as the objects of the legislation and do not apply to the other Hawaiian citizens. It also bears noting that the singling out of Native Hawaiians takes two different forms. Some of the legislation applies to all Native Americans, see, e.g., Native American Programs Act of 1974, 42 U.S.C. §§ 2991-92d (1994), or to Native Americans and other minority groups, see, e.g., Disadvantaged Minority Health Improvement Act of 1990, Pub. L. No. 101-527, 104 Stat. 2311 (1990) (codified as amended in scattered sections of 42 U.S.C.), and enumerates Native Hawaiians as one of several beneficiary groups. Other legislation, including the most important program, the Hawaiian Homes Commission Act, see infra notes 64-65, as well as virtually all of the State of Hawaii's legislation benefiting Native Hawaiians, applies to Native Hawaiians only. This Article does not distinguish between these two categories, as both involve classifications of Native Hawaiians pursuant to which Native Hawaiians are treated differently from the general population of Hawaii.
6. In some statutes, "Native Hawaiian" has a specialized meaning; for instance, the statutes of Hawaii distinguish between a "Native Hawaiian," defined as a "descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778," and a "Hawaiian," defined as any descendant of pre-1778 aboriginal inhabitants, regardless of blood quantum. HAW. REV. STAT. ANN. § 10-2 (Michie 1995); see infra notes 64-65, 71-73 and accompanying text. Also, some statutes use other terms, such as "Hawaiian native," to refer to descendants of pre-1778 inhabitants. See 20 U.S.C. § 351a (1994) (giving benefits to "Hawaiian natives"); id. § 2313 (same). This Article will use the term "Native Hawaiians" to refer to all classifications based on descent from pre-1778 inhabitants of what is now the State of Hawaii. The significance of 1778 is that it was the year that Westerners - in the form of Captain Cook - "discovered" Hawaii.
7. 115 S. Ct. 2097.
8. 488 U.S. 469.
9. See, e.g., 25 U.S.C. § 297 (1994); id. § 482.
10. Some statutes utilize racial definitions in giving benefits to Alaska Natives, and thus would likely stand on no firmer constitutional footing than the statutes singling out Native Hawaiians that are the focus of this Article. See, e.g., 25 U.S.C. § 500n. In addition, the Alaska Native Claims Settlement Act of 1971, 43 U.S.C. §§ 1601-24 (1994), provided the impetus for the creation of Alaska Native Regional Corporations and Alaska Native Village Corporations, and these corporations now receive some government benefits provided to tribes. See infra notes 266-71 and accompanying text. The Supreme Court has never had occasion to address the constitutionality of benefits given to such corporations.
11. The applicability of this analysis to native groups in territories is complicated by the separate, and controversial, question of the extent to which the equal protection component of the Fifth and Fourteenth Amendments applies to particular territories. See generally Wabol v. Villacrusis, 958 F.2d 1450, 1461 (9th Cir. 1992); Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707 (1995); Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779 (1992); Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. HAW. L. REV. 445 (1992); Stephen J. DiGianfilippo, Note, The Reach of the Constitution Beyond the Territory and "People" of the United States, 16 SUFFOLK TRANSNAT'L L. REV. 117 (1992).
12. The applicability of this analysis to native groups in territories is complicated by the separate, and controversial, question of the extent to which the equal protection component of the Fifth and Fourteenth Amendments applies to particular territories. See generally Wabol v. Villacrusis, 958 F.2d 1450, 1461 (9th Cir. 1992); Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707 (1995); Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779 (1992); Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. HAW. L. REV. 445 (1992); Stephen J. DiGianfilippo, Note, The Reach of the Constitution Beyond the Territory and "People" of the United States, 16 SUFFOLK TRANSNAT'L L. REV. 117 (1992).
13. The applicability of this analysis to native groups in territories is complicated by the separate, and controversial, question of the extent to which the equal protection component of the Fifth and Fourteenth Amendments applies to particular territories. See generally Wabol v. Villacrusis, 958 F.2d 1450, 1461 (9th Cir. 1992); Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707 (1995); Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779 (1992); Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. HAW. L. REV. 445 (1992); Stephen J. DiGianfilippo, Note, The Reach of the Constitution Beyond the Territory and "People" of the United States, 16 SUFFOLK TRANSNAT'L L. REV. 117 (1992).
14. The applicability of this analysis to native groups in territories is complicated by the separate, and controversial, question of the extent to which the equal protection component of the Fifth and Fourteenth Amendments applies to particular territories. See generally Wabol v. Villacrusis, 958 F.2d 1450, 1461 (9th Cir. 1992); Marybeth Herald, Does the Constitution Follow the Flag into United States Territories or Can It Be Separately Purchased and Sold?, 22 HASTINGS CONST. L.Q. 707 (1995); Robert A. Katz, The Jurisprudence of Legitimacy: Applying the Constitution to U.S. Territories, 59 U. CHI. L. REV. 779 (1992); Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. HAW. L. REV. 445 (1992); Stephen J. DiGianfilippo, Note, The Reach of the Constitution Beyond the Territory and "People" of the United States, 16 SUFFOLK TRANSNAT'L L. REV. 117 (1992).
15. This is the definition from the first (and most important) federal statute benefiting Native Hawaiians. See Hawaiian Homes Commission Act of 1920, Pub. L. No. 34, § 201(a)(7), 42 Stat. 108 (1921) (codified as amended at HAW. CONST. art. XII, § 1) [hereinafter HHCA]; infra notes 64-65 and accompanying text. For other statutes utilizing this definition, see infra note 96.
16. This definition is utilized in, inter alia, the legislation creating the Office of Hawaiian Affairs (OHA), which is the main state program that benefits Native Hawaiians. See HAW. REV. STAT. ANN. § 10-2 (Michie 1995). For other statutes utilizing this definition, see infra note 97.
17. See Shaw v. Reno, 509 U.S. 630, 643-44 (1993) ("'A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.'") (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 272 (1979)).
18. Rice v. Cayetano, Nos. Civ.96-00390 DAE, Civ.96-00616 DAE, 1996 WL 562072, at *2 (D. Haw. Sept. 6, 1996); see also infra notes 251-53 and accompanying text. Although only 40% of the ballots were returned, 73% of those who returned ballots voted in favor of the proposition. See infra text accompanying notes 254, 261.
19. It bears mentioning that the normative implications of such a result for Native Hawaiians are far from clear. The Supreme Court has upheld, pursuant to the federal government's special relationship with Indian tribes, laws that harmed as well as helped Indians. See infra notes 30, 40-44 and accompanying text. While the creation of a Native Hawaiian government may enhance Native Hawaiians' collective ability to act, a resulting special relationship would not necessarily benefit Native Hawaiians or enhance their rights; the rights that the special relationship enhances are the federal government's, for good or ill. See infra note 42, text accompanying note 201. The desirability of such a relationship, then, turns in part on the speculative question of the federal government's future actions and their impact on Native Hawaiians.
20. See HHCA § 203; see infra notes 64-97 and accompanying text.
21. See Rice, 1996 WL 562072; Naliielua v. Hawaii, 795 F. Supp. 1009 (D. Haw. 1990), aff'd on other grounds, No. 90-15842, 1991 WL 148771 (9th Cir. 1991). In Naliielua, the district judge concluded that the special relationship applies to Native Hawaiians because "Native Hawaiians are people indigenous to the State of Hawaii, just as American Indians are indigenous to the mainland United States." Id. at 1013. On appeal, the Ninth Circuit, in an unpublished opinion, ruled that the plaintiff lacked standing to raise this equal protection argument. See Naliielua, 1991 WL 148771, at *1-2; see also infra notes 104-06 and accompanying text. In Rice, the same district judge denied a motion for a preliminary injunction to stop the release of the results of the Native Hawaiian vote; he relied in part on his opinion in Naliielua and in part on the unique aspects of the Native Hawaiian vote in assisting the creation of a native Hawaiian government. The Ninth Circuit has not considered the merits of this challenge.
22. See, e.g., Lisa Cami Oshiro, Recognizing Na Kanaka Maoli's Right to Self-Determination, 25 N.M. L. REV. 65, 75-76 (1995); Haunani-Kay Trask, Coalition-Building Between Natives and Non-Natives, 43 STAN. L. REV. 1197, 1206 (1991); Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, ARIZ. J. INT'L & COMP. L., Fall 1991, at 77, 82-83; J on Van Dyke, The Constitutionality of the Office of Hawaiian Affairs, 7 U. HAW. L. REV. 63, 66-68, 73-80 (1985); Michael M. McPherson, Comment, Trustees of Hawaiian Affairs v. Yamasaki and the Native Hawaiian Claim: Too Much of Nothing, 21 ENVTL. L. 453, 479-80 (1991). There is one article that considers the constitutional status of Native Hawaiians in some detail, Richard H. Houghton III, An Argument for Indian Status for Native Hawaiians - The Discovery of a Lost Tribe, 14 AM. INDIAN L. REV. 1 (1989), but its analysis is flawed. See infra note 156. Of the other commentators who have discussed legal issues involving Native Hawaiians, only Professor Van Dyke gives the question of the constitutional status of programs for Native Hawaiians anything more than cursory consideration, and his analysis, too, is flawed. See infra notes 146-51 and accompanying text.
23. See, e.g., Lisa Cami Oshiro, Recognizing Na Kanaka Maoli's Right to Self-Determination, 25 N.M. L. REV. 65, 75-76 (1995); Haunani-Kay Trask, Coalition-Building Between Natives and Non-Natives, 43 STAN. L. REV. 1197, 1206 (1991); Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, ARIZ. J. INT'L & COMP. L., Fall 1991, at 77, 82-83; J on Van Dyke, The Constitutionality of the Office of Hawaiian Affairs, 7 U. HAW. L. REV. 63, 66-68, 73-80 (1985); Michael M. McPherson, Comment, Trustees of Hawaiian Affairs v. Yamasaki and the Native Hawaiian Claim: Too Much of Nothing, 21 ENVTL. L. 453, 479-80 (1991). There is one article that considers the constitutional status of Native Hawaiians in some detail, Richard H. Houghton III, An Argument for Indian Status for Native Hawaiians - The Discovery of a Lost Tribe, 14 AM. INDIAN L. REV. 1 (1989), but its analysis is flawed. See infra note 156. Of the other commentators who have discussed legal issues involving Native Hawaiians, only Professor Van Dyke gives the question of the constitutional status of programs for Native Hawaiians anything more than cursory consideration, and his analysis, too, is flawed. See infra notes 146-51 and accompanying text.
24. See, e.g., Lisa Cami Oshiro, Recognizing Na Kanaka Maoli's Right to Self-Determination, 25 N.M. L. REV. 65, 75-76 (1995); Haunani-Kay Trask, Coalition-Building Between Natives and Non-Natives, 43 STAN. L. REV. 1197, 1206 (1991); Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, ARIZ. J. INT'L & COMP. L., Fall 1991, at 77, 82-83; J on Van Dyke, The Constitutionality of the Office of Hawaiian Affairs, 7 U. HAW. L. REV. 63, 66-68, 73-80 (1985); Michael M. McPherson, Comment, Trustees of Hawaiian Affairs v. Yamasaki and the Native Hawaiian Claim: Too Much of Nothing, 21 ENVTL. L. 453, 479-80 (1991). There is one article that considers the constitutional status of Native Hawaiians in some detail, Richard H. Houghton III, An Argument for Indian Status for Native Hawaiians - The Discovery of a Lost Tribe, 14 AM. INDIAN L. REV. 1 (1989), but its analysis is flawed. See infra note 156. Of the other commentators who have discussed legal issues involving Native Hawaiians, only Professor Van Dyke gives the question of the constitutional status of programs for Native Hawaiians anything more than cursory consideration, and his analysis, too, is flawed. See infra notes 146-51 and accompanying text.
25. See, e.g., Lisa Cami Oshiro, Recognizing Na Kanaka Maoli's Right to Self-Determination, 25 N.M. L. REV. 65, 75-76 (1995); Haunani-Kay Trask, Coalition-Building Between Natives and Non-Natives, 43 STAN. L. REV. 1197, 1206 (1991); Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, ARIZ. J. INT'L & COMP. L., Fall 1991, at 77, 82-83; J on Van Dyke, The Constitutionality of the Office of Hawaiian Affairs, 7 U. HAW. L. REV. 63, 66-68, 73-80 (1985); Michael M. McPherson, Comment, Trustees of Hawaiian Affairs v. Yamasaki and the Native Hawaiian Claim: Too Much of Nothing, 21 ENVTL. L. 453, 479-80 (1991). There is one article that considers the constitutional status of Native Hawaiians in some detail, Richard H. Houghton III, An Argument for Indian Status for Native Hawaiians - The Discovery of a Lost Tribe, 14 AM. INDIAN L. REV. 1 (1989), but its analysis is flawed. See infra note 156. Of the other commentators who have discussed legal issues involving Native Hawaiians, only Professor Van Dyke gives the question of the constitutional status of programs for Native Hawaiians anything more than cursory consideration, and his analysis, too, is flawed. See infra notes 146-51 and accompanying text.
26. See, e.g., Lisa Cami Oshiro, Recognizing Na Kanaka Maoli's Right to Self-Determination, 25 N.M. L. REV. 65, 75-76 (1995); Haunani-Kay Trask, Coalition-Building Between Natives and Non-Natives, 43 STAN. L. REV. 1197, 1206 (1991); Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, ARIZ. J. INT'L & COMP. L., Fall 1991, at 77, 82-83; J on Van Dyke, The Constitutionality of the Office of Hawaiian Affairs, 7 U. HAW. L. REV. 63, 66-68, 73-80 (1985); Michael M. McPherson, Comment, Trustees of Hawaiian Affairs v. Yamasaki and the Native Hawaiian Claim: Too Much of Nothing, 21 ENVTL. L. 453, 479-80 (1991). There is one article that considers the constitutional status of Native Hawaiians in some detail, Richard H. Houghton III, An Argument for Indian Status for Native Hawaiians - The Discovery of a Lost Tribe, 14 AM. INDIAN L. REV. 1 (1989), but its analysis is flawed. See infra note 156. Of the other commentators who have discussed legal issues involving Native Hawaiians, only Professor Van Dyke gives the question of the constitutional status of programs for Native Hawaiians anything more than cursory consideration, and his analysis, too, is flawed. See infra notes 146-51 and accompanying text.
27. See, e.g., Lisa Cami Oshiro, Recognizing Na Kanaka Maoli's Right to Self-Determination, 25 N.M. L. REV. 65, 75-76 (1995); Haunani-Kay Trask, Coalition-Building Between Natives and Non-Natives, 43 STAN. L. REV. 1197, 1206 (1991); Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, ARIZ. J. INT'L & COMP. L., Fall 1991, at 77, 82-83; J on Van Dyke, The Constitutionality of the Office of Hawaiian Affairs, 7 U. HAW. L. REV. 63, 66-68, 73-80 (1985); Michael M. McPherson, Comment, Trustees of Hawaiian Affairs v. Yamasaki and the Native Hawaiian Claim: Too Much of Nothing, 21 ENVTL. L. 453, 479-80 (1991). There is one article that considers the constitutional status of Native Hawaiians in some detail, Richard H. Houghton III, An Argument for Indian Status for Native Hawaiians - The Discovery of a Lost Tribe, 14 AM. INDIAN L. REV. 1 (1989), but its analysis is flawed. See infra note 156. Of the other commentators who have discussed legal issues involving Native Hawaiians, only Professor Van Dyke gives the question of the constitutional status of programs for Native Hawaiians anything more than cursory consideration, and his analysis, too, is flawed. See infra notes 146-51 and accompanying text.
28. Some litigants have suggested that there is a "trust relationship" between Native Hawaiians and the federal government. See Han v. Department of Justice, 824 F. Supp. 1480, 1486 (D. Haw. 1993), aff'd, 45 F.3d 333, 337 (9th Cir. 1995). The Han litigants appear to have regarded the trust relationship as synonymous with what I am calling the special relationship - the relationship identified in Mancari and grounded in the Indian Commerce Clause under which the federal government can single out certain groups for different treatment without triggering strict scrutiny. See also supra note 2; infra note 28. Insofar as they are asserting that this constitutionally grounded relationship exists, this Article responds to that assertion. Others, however, have articulated the trust relationship as arising out of certain statutes, without addressing (perhaps because they assumed it was not an issue or not relevant) the constitutional grounding for it. See Mark A. Inciong, The Lost Trust: Native Hawaiian Beneficiaries Under the Hawaiian Homes Commission Act, ARIZ. J. INT'L & COMP. L., Fall 1991, at 171; Charles F. Wilkinson, Land Tenure in the Pacific: The Context for Native Hawaiian Land Rights, 64 WASH. L. REV. 227 (1989). That is, they have contended that Congress, through the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959) [hereinafter Admission Act], the HHCA, and the Annexation Act of 1898, Act of July 7, 1898, 30 Stat. 750, has entered into a trust relationship with Native Hawaiians, and they have not focused on the underlying question of Congress's constitutional authority to enter into such a relationship. The question addressed in this Article - whether there is a constitutional grounding for treating Native Hawaiians specially such that this treatment will not be subject to strict scrutiny - is antecedent to the question whether the language of certain statutes provides for such special treatment. Congress's acknowledgement of a trust relationship would still leave open the question whether Congress did so pursuant to the special relationship with Indian tribes (in which case rational basis review would apply) or whether Congress legislated outside the scope of the special relationship (in which case strict scrutiny would apply, as it does to other racial or ethnic classifications in legislation). See also infra text accompanying notes 32-44. It may be, then, that Congress did obligate itself to provide certain services to Native Hawaiians, but that in so doing it exceeded its constitutional authority. Conversely, it is possible that Congress did not enter into a trust relationship with Native Hawaiians, but nonetheless the special (or trust) relationship extends to them. After all, constitutional authority may exist irrespective of whether Congress has ever acted on that authority to enter into a particular relationship.
29. Some litigants have suggested that there is a "trust relationship" between Native Hawaiians and the federal government. See Han v. Department of Justice, 824 F. Supp. 1480, 1486 (D. Haw. 1993), aff'd, 45 F.3d 333, 337 (9th Cir. 1995). The Han litigants appear to have regarded the trust relationship as synonymous with what I am calling the special relationship - the relationship identified in Mancari and grounded in the Indian Commerce Clause under which the federal government can single out certain groups for different treatment without triggering strict scrutiny. See also supra note 2; infra note 28. Insofar as they are asserting that this constitutionally grounded relationship exists, this Article responds to that assertion. Others, however, have articulated the trust relationship as arising out of certain statutes, without addressing (perhaps because they assumed it was not an issue or not relevant) the constitutional grounding for it. See Mark A. Inciong, The Lost Trust: Native Hawaiian Beneficiaries Under the Hawaiian Homes Commission Act, ARIZ. J. INT'L & COMP. L., Fall 1991, at 171; Charles F. Wilkinson, Land Tenure in the Pacific: The Context for Native Hawaiian Land Rights, 64 WASH. L. REV. 227 (1989). That is, they have contended that Congress, through the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959) [hereinafter Admission Act], the HHCA, and the Annexation Act of 1898, Act of July 7, 1898, 30 Stat. 750, has entered into a trust relationship with Native Hawaiians, and they have not focused on the underlying question of Congress's constitutional authority to enter into such a relationship. The question addressed in this Article - whether there is a constitutional grounding for treating Native Hawaiians specially such that this treatment will not be subject to strict scrutiny - is antecedent to the question whether the language of certain statutes provides for such special treatment. Congress's acknowledgement of a trust relationship would still leave open the question whether Congress did so pursuant to the special relationship with Indian tribes (in which case rational basis review would apply) or whether Congress legislated outside the scope of the special relationship (in which case strict scrutiny would apply, as it does to other racial or ethnic classifications in legislation). See also infra text accompanying notes 32-44. It may be, then, that Congress did obligate itself to provide certain services to Native Hawaiians, but that in so doing it exceeded its constitutional authority. Conversely, it is possible that Congress did not enter into a trust relationship with Native Hawaiians, but nonetheless the special (or trust) relationship extends to them. After all, constitutional authority may exist irrespective of whether Congress has ever acted on that authority to enter into a particular relationship.
30. 417 U.S. 535 (1974).
31. See, e.g., Vine Deloria, Jr., Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law, 31 ARIZ. L. REV. 203 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137 (1990); Sharon O'Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship?, 66 NOTRE DAME L. REV. 1461 (1991).
32. See, e.g., Vine Deloria, Jr., Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law, 31 ARIZ. L. REV. 203 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137 (1990); Sharon O'Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship?, 66 NOTRE DAME L. REV. 1461 (1991).
33. See, e.g., Vine Deloria, Jr., Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law, 31 ARIZ. L. REV. 203 (1989); Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137 (1990); Sharon O'Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship?, 66 NOTRE DAME L. REV. 1461 (1991).
34. One commentator has argued that the Framers rejected a clause proposed by James Madison that would have granted Congress plenary authority "[t]o regulate affairs with the Indians" and instead chose the language of the Indian Commerce Clause in order to give Congress narrower powers. See Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 AM. INDIAN L. REV. 57, 73 (1991) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 325 (M. Farrand ed., rev. ed. 1937) (Aug. 18, 1787) (motion of James Madison, Virginia)). On this basis, he argues that the Court should not have interpreted the Clause so broadly. See id. at 72-87; see also Robert N. Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 STAN. L. REV. 979, 999-1001, 1011-12 (1981) (discussing need for additional limits on congressional power in light of plenary interpretation of Indian Commerce Clause); infra note 28. This Article addresses the constitutional status of legislation giving benefits to Native Hawaiians under current case law and so will not consider arguments that reject the prevailing jurisprudence.
35. One commentator has argued that the Framers rejected a clause proposed by James Madison that would have granted Congress plenary authority "[t]o regulate affairs with the Indians" and instead chose the language of the Indian Commerce Clause in order to give Congress narrower powers. See Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 AM. INDIAN L. REV. 57, 73 (1991) (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 325 (M. Farrand ed., rev. ed. 1937) (Aug. 18, 1787) (motion of James Madison, Virginia)). On this basis, he argues that the Court should not have interpreted the Clause so broadly. See id. at 72-87; see also Robert N. Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 STAN. L. REV. 979, 999-1001, 1011-12 (1981) (discussing need for additional limits on congressional power in light of plenary interpretation of Indian Commerce Clause); infra note 28. This Article addresses the constitutional status of legislation giving benefits to Native Hawaiians under current case law and so will not consider arguments that reject the prevailing jurisprudence.
36. U.S. CONST. art. I, § 8, cl. 3; see Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 18 (1831); see also Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 390-92 (1993).
37. 118 U.S. 375 (1886).
38. See id. at 378-79.
39. Id. at 384-85. As Professor Philip Frickey has pointed out, this reasoning, based on the inherent power of the federal government, bears a strong resemblance to the reasoning in the Chinese Exclusion Case, 130 U.S. 581 (1889), involving federal power over immigration, and in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), involving federal power (in that case, specifically the President's power) over foreign affairs. See Philip P. Frickey, Domesticating Federal Indian Law, 81 MINN. L. REV. 31, 60-66 (1996).
40. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Morton v. Mancari, 417 U.S. 535, 551-52 (1974) (locating source of power over Indian tribes in Indian Commerce Clause and Treaty Clause); United States v. Antelope, 430 U.S. 641, 645 & n.6 (1977) (citing Indian Commerce Clause as providing for federal classification of Indian tribes); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs."); see also Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 230-31 (1984) (noting that "the Court has looked increasingly to enumerated powers" and has "repudiated the notion that Congress's plenary power was extraconstitutional"); Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 568 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)); Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 YALE L.J. 793, 808 (1989). Congress's plenary power and the basis of a special (or trust) relationship are significant issues that many commentators have addressed at great length. In doing so, they have frequently taken issue with the Court's articulation of the special relationship and have suggested different ways of conceptualizing the relationship between the federal government and Indians. An example of one such alternative view is the suggestion that other provisions of the Constitution, such as the Fourteenth Amendment, provide the grounding for the special relationship. See infra note 115. Another theory is that there is no plenary power over Indians, so that the Court's claimed constitutional grounding for the special relationship does not exist. See, e.g., Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1; Savage, supra note 23; Clinton, supra note 23; Skibine, supra, at 568-69. Yet another is that plenary power and the trust (or special) relationship are quite different - that the former describes Congress's powers (which should be limited), and the second describes an extraconstitutional relationship that not only transcends the Indian Commerce Clause (and the rest of the Constitution) but also entails a trust responsibility that Congress has toward Indians. See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495-505; Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 475-83 (1995). Such arguments perform the important function of addressing how the Supreme Court should construe the federal government's authority vis-à-vis Indians, but this Article is concerned with the implications of the Supreme Court's current jurisprudence; and, as the cases cited above indicate, the Court appears to treat the special relationship as arising out of the broad powers conferred on Congress by the Indian Commerce Clause and perhaps the Treaty Clause.
41. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Morton v. Mancari, 417 U.S. 535, 551-52 (1974) (locating source of power over Indian tribes in Indian Commerce Clause and Treaty Clause); United States v. Antelope, 430 U.S. 641, 645 & n.6 (1977) (citing Indian Commerce Clause as providing for federal classification of Indian tribes); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs."); see also Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 230-31 (1984) (noting that "the Court has looked increasingly to enumerated powers" and has "repudiated the notion that Congress's plenary power was extraconstitutional"); Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 568 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)); Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 YALE L.J. 793, 808 (1989). Congress's plenary power and the basis of a special (or trust) relationship are significant issues that many commentators have addressed at great length. In doing so, they have frequently taken issue with the Court's articulation of the special relationship and have suggested different ways of conceptualizing the relationship between the federal government and Indians. An example of one such alternative view is the suggestion that other provisions of the Constitution, such as the Fourteenth Amendment, provide the grounding for the special relationship. See infra note 115. Another theory is that there is no plenary power over Indians, so that the Court's claimed constitutional grounding for the special relationship does not exist. See, e.g., Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1; Savage, supra note 23; Clinton, supra note 23; Skibine, supra, at 568-69. Yet another is that plenary power and the trust (or special) relationship are quite different - that the former describes Congress's powers (which should be limited), and the second describes an extraconstitutional relationship that not only transcends the Indian Commerce Clause (and the rest of the Constitution) but also entails a trust responsibility that Congress has toward Indians. See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495-505; Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 475-83 (1995). Such arguments perform the important function of addressing how the Supreme Court should construe the federal government's authority vis-à-vis Indians, but this Article is concerned with the implications of the Supreme Court's current jurisprudence; and, as the cases cited above indicate, the Court appears to treat the special relationship as arising out of the broad powers conferred on Congress by the Indian Commerce Clause and perhaps the Treaty Clause.
42. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Morton v. Mancari, 417 U.S. 535, 551-52 (1974) (locating source of power over Indian tribes in Indian Commerce Clause and Treaty Clause); United States v. Antelope, 430 U.S. 641, 645 & n.6 (1977) (citing Indian Commerce Clause as providing for federal classification of Indian tribes); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs."); see also Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 230-31 (1984) (noting that "the Court has looked increasingly to enumerated powers" and has "repudiated the notion that Congress's plenary power was extraconstitutional"); Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 568 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)); Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 YALE L.J. 793, 808 (1989). Congress's plenary power and the basis of a special (or trust) relationship are significant issues that many commentators have addressed at great length. In doing so, they have frequently taken issue with the Court's articulation of the special relationship and have suggested different ways of conceptualizing the relationship between the federal government and Indians. An example of one such alternative view is the suggestion that other provisions of the Constitution, such as the Fourteenth Amendment, provide the grounding for the special relationship. See infra note 115. Another theory is that there is no plenary power over Indians, so that the Court's claimed constitutional grounding for the special relationship does not exist. See, e.g., Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1; Savage, supra note 23; Clinton, supra note 23; Skibine, supra, at 568-69. Yet another is that plenary power and the trust (or special) relationship are quite different - that the former describes Congress's powers (which should be limited), and the second describes an extraconstitutional relationship that not only transcends the Indian Commerce Clause (and the rest of the Constitution) but also entails a trust responsibility that Congress has toward Indians. See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495-505; Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 475-83 (1995). Such arguments perform the important function of addressing how the Supreme Court should construe the federal government's authority vis-à-vis Indians, but this Article is concerned with the implications of the Supreme Court's current jurisprudence; and, as the cases cited above indicate, the Court appears to treat the special relationship as arising out of the broad powers conferred on Congress by the Indian Commerce Clause and perhaps the Treaty Clause.
43. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Morton v. Mancari, 417 U.S. 535, 551-52 (1974) (locating source of power over Indian tribes in Indian Commerce Clause and Treaty Clause); United States v. Antelope, 430 U.S. 641, 645 & n.6 (1977) (citing Indian Commerce Clause as providing for federal classification of Indian tribes); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs."); see also Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 230-31 (1984) (noting that "the Court has looked increasingly to enumerated powers" and has "repudiated the notion that Congress's plenary power was extraconstitutional"); Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 568 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)); Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 YALE L.J. 793, 808 (1989). Congress's plenary power and the basis of a special (or trust) relationship are significant issues that many commentators have addressed at great length. In doing so, they have frequently taken issue with the Court's articulation of the special relationship and have suggested different ways of conceptualizing the relationship between the federal government and Indians. An example of one such alternative view is the suggestion that other provisions of the Constitution, such as the Fourteenth Amendment, provide the grounding for the special relationship. See infra note 115. Another theory is that there is no plenary power over Indians, so that the Court's claimed constitutional grounding for the special relationship does not exist. See, e.g., Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1; Savage, supra note 23; Clinton, supra note 23; Skibine, supra, at 568-69. Yet another is that plenary power and the trust (or special) relationship are quite different - that the former describes Congress's powers (which should be limited), and the second describes an extraconstitutional relationship that not only transcends the Indian Commerce Clause (and the rest of the Constitution) but also entails a trust responsibility that Congress has toward Indians. See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495-505; Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 475-83 (1995). Such arguments perform the important function of addressing how the Supreme Court should construe the federal government's authority vis-à-vis Indians, but this Article is concerned with the implications of the Supreme Court's current jurisprudence; and, as the cases cited above indicate, the Court appears to treat the special relationship as arising out of the broad powers conferred on Congress by the Indian Commerce Clause and perhaps the Treaty Clause.
44. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Morton v. Mancari, 417 U.S. 535, 551-52 (1974) (locating source of power over Indian tribes in Indian Commerce Clause and Treaty Clause); United States v. Antelope, 430 U.S. 641, 645 & n.6 (1977) (citing Indian Commerce Clause as providing for federal classification of Indian tribes); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs."); see also Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 230-31 (1984) (noting that "the Court has looked increasingly to enumerated powers" and has "repudiated the notion that Congress's plenary power was extraconstitutional"); Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 568 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)); Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 YALE L.J. 793, 808 (1989). Congress's plenary power and the basis of a special (or trust) relationship are significant issues that many commentators have addressed at great length. In doing so, they have frequently taken issue with the Court's articulation of the special relationship and have suggested different ways of conceptualizing the relationship between the federal government and Indians. An example of one such alternative view is the suggestion that other provisions of the Constitution, such as the Fourteenth Amendment, provide the grounding for the special relationship. See infra note 115. Another theory is that there is no plenary power over Indians, so that the Court's claimed constitutional grounding for the special relationship does not exist. See, e.g., Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1; Savage, supra note 23; Clinton, supra note 23; Skibine, supra, at 568-69. Yet another is that plenary power and the trust (or special) relationship are quite different - that the former describes Congress's powers (which should be limited), and the second describes an extraconstitutional relationship that not only transcends the Indian Commerce Clause (and the rest of the Constitution) but also entails a trust responsibility that Congress has toward Indians. See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495-505; Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 475-83 (1995). Such arguments perform the important function of addressing how the Supreme Court should construe the federal government's authority vis-à-vis Indians, but this Article is concerned with the implications of the Supreme Court's current jurisprudence; and, as the cases cited above indicate, the Court appears to treat the special relationship as arising out of the broad powers conferred on Congress by the Indian Commerce Clause and perhaps the Treaty Clause.
45. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Morton v. Mancari, 417 U.S. 535, 551-52 (1974) (locating source of power over Indian tribes in Indian Commerce Clause and Treaty Clause); United States v. Antelope, 430 U.S. 641, 645 & n.6 (1977) (citing Indian Commerce Clause as providing for federal classification of Indian tribes); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs."); see also Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 230-31 (1984) (noting that "the Court has looked increasingly to enumerated powers" and has "repudiated the notion that Congress's plenary power was extraconstitutional"); Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 568 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)); Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 YALE L.J. 793, 808 (1989). Congress's plenary power and the basis of a special (or trust) relationship are significant issues that many commentators have addressed at great length. In doing so, they have frequently taken issue with the Court's articulation of the special relationship and have suggested different ways of conceptualizing the relationship between the federal government and Indians. An example of one such alternative view is the suggestion that other provisions of the Constitution, such as the Fourteenth Amendment, provide the grounding for the special relationship. See infra note 115. Another theory is that there is no plenary power over Indians, so that the Court's claimed constitutional grounding for the special relationship does not exist. See, e.g., Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1; Savage, supra note 23; Clinton, supra note 23; Skibine, supra, at 568-69. Yet another is that plenary power and the trust (or special) relationship are quite different - that the former describes Congress's powers (which should be limited), and the second describes an extraconstitutional relationship that not only transcends the Indian Commerce Clause (and the rest of the Constitution) but also entails a trust responsibility that Congress has toward Indians. See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495-505; Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 475-83 (1995). Such arguments perform the important function of addressing how the Supreme Court should construe the federal government's authority vis-à-vis Indians, but this Article is concerned with the implications of the Supreme Court's current jurisprudence; and, as the cases cited above indicate, the Court appears to treat the special relationship as arising out of the broad powers conferred on Congress by the Indian Commerce Clause and perhaps the Treaty Clause.
46. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Morton v. Mancari, 417 U.S. 535, 551-52 (1974) (locating source of power over Indian tribes in Indian Commerce Clause and Treaty Clause); United States v. Antelope, 430 U.S. 641, 645 & n.6 (1977) (citing Indian Commerce Clause as providing for federal classification of Indian tribes); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs."); see also Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 230-31 (1984) (noting that "the Court has looked increasingly to enumerated powers" and has "repudiated the notion that Congress's plenary power was extraconstitutional"); Alex Tallchief Skibine, Braid of Feathers: Pluralism, Legitimacy, Sovereignty, and the Importance of Tribal Court Jurisprudence, 96 COLUM. L. REV. 557, 568 (1996) (reviewing FRANK POMMERSHEIM, BRAID OF FEATHERS (1995)); Mike Townsend, Congressional Abrogation of Indian Treaties: Reevaluation and Reform, 98 YALE L.J. 793, 808 (1989). Congress's plenary power and the basis of a special (or trust) relationship are significant issues that many commentators have addressed at great length. In doing so, they have frequently taken issue with the Court's articulation of the special relationship and have suggested different ways of conceptualizing the relationship between the federal government and Indians. An example of one such alternative view is the suggestion that other provisions of the Constitution, such as the Fourteenth Amendment, provide the grounding for the special relationship. See infra note 115. Another theory is that there is no plenary power over Indians, so that the Court's claimed constitutional grounding for the special relationship does not exist. See, e.g., Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1; Savage, supra note 23; Clinton, supra note 23; Skibine, supra, at 568-69. Yet another is that plenary power and the trust (or special) relationship are quite different - that the former describes Congress's powers (which should be limited), and the second describes an extraconstitutional relationship that not only transcends the Indian Commerce Clause (and the rest of the Constitution) but also entails a trust responsibility that Congress has toward Indians. See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495-505; Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 475-83 (1995). Such arguments perform the important function of addressing how the Supreme Court should construe the federal government's authority vis-à-vis Indians, but this Article is concerned with the implications of the Supreme Court's current jurisprudence; and, as the cases cited above indicate, the Court appears to treat the special relationship as arising out of the broad powers conferred on Congress by the Indian Commerce Clause and perhaps the Treaty Clause.
47. United States v. Lopez, 115 S. Ct. 1624 (1995), might portend some limit on Congress's powers under the Indian Commerce Clause. In invalidating the Gun-Free School Zones Act, the Court, for the first time in half a century, struck down an enactment as beyond Congress's interstate commerce power. It is possible that the Court will also apply some limits to the Indian Commerce Clause. Cf. Seminole Tribe v. Florida, 116 S. Ct. 1114, 1126-27 (1996) (rejecting argument that Indian and Interstate Commerce Clauses entailed different balances of power between federal and state governments). Thus Lopez could be the catalyst for a change that some Native American law scholars have been championing for years - namely, a limitation on Congress's plenary power over Indian tribes. See, e.g., Ball, supra note 28, at 61-66.
48. See, e.g., Antelope, 430 U.S. 641 (upholding convictions of tribal members under more rigorous federal, rather than state, criminal laws that applied to them because they were Indians and rejecting argument that Mancari applied only to programs that helped Indians); Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979) (allowing imposition of "checkerboard" jurisdiction over Indian reservations despite tribes' objection that it harmed them); see also Duro v. Reina, 495 U.S. 676, 692 (1990) (noting "the Federal Government's broad authority to legislate with respect to enrolled Indians as a class, whether to impose burdens or benefits"). For more on this point and its implications, see infra notes 244-47 and accompanying text.
49. See Seminole Tribe, 116 S. Ct. at 1133. In Seminole Tribe, the Court focused on the Indian Commerce Clause as the grounding for Congress's power over Indians even as it found that all of Congress's Article I powers were limited not by the "straw man" of constitutional text, but instead by a "background principle" embodied in the Eleventh Amendment. See id. at 1130-31; see also Hodel v. Irving, 481 U.S. 704, 713-14 (1987) (citing Takings Clause as limiting force on Congress's power); Choate v. Trapp, 224 U.S. 665 (1912) (holding Fifth Amendment restricts Congress's Indian Commerce Clause power in matters of Indian taxation); Muskrat v. United States, 219 U.S. 346 (1911) (dismissing case as outside power of Congress to confer jurisdiction); Jones v. Meehan, 175 U.S. 1 (1899) (holding construction of treaties to be outside congressional power).
50. 417 U.S. 535 (1974).
51. Although Mancari used the term "due process" rather than "equal protection," the language in Mancari (and in later cases) indicates that the Court treats the difference as semantic. In Mancari, the Court characterized the challenge as "whether . . . the preference constitutes invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954)." Mancari, 417 U.S. at 551. The Court's citation to Bolling is significant, because that case involved a challenge under the equal protection component of the Due Process Clause of the Fifth Amendment. It appears, therefore, that Mancari refers only to the Due Process Clause because that is the clause at
52. The non-Indian employees also argued that the hiring preference was prohibited by the Equal Employment Act of 1972; the Court devoted most of the opinion to rejecting this challenge.
53. Mancari, 417 U.S. at 551.
54. Id. at 551-52. The suggestion, made here and in other Supreme Court cases, that the special relationship is grounded in the Indian Commerce Clause (and perhaps the Treaty Clause) has provoked commentators to offer possible alternatives. See supra note 28. The contrast between the Court's modern focus on constitutional grounding and the view it articulated in United States v. Kagama, 118 U.S. 375 (1886), is particularly striking. See Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. REV. L. & SOC. CHANGE 217, 275 (1993) ("In Mancari, the power justified in Kagama on the basis of wardship is said to be instead based upon provisions of the Constitution, even though Kagama had explicitly rejected such a constitutional basis.").
55. See Mancari, 417 U.S. at 552.
56. Id. at 553 n.24. One of the most important aspects of the Court's conclusion was left unstated: The Court ignored the statutory definition of "Indian" and instead looked only to the BIA regulation's definition. This was crucial, because the statute - the Indian Reorganization Act of 1934, 48 Stat. 984 [hereinafter IRA] - provided for benefits to "Indians," defined as members of federally recognized Indian tribes and "all other persons of one-half or more Indian blood." 25 U.S.C. § 479 (1994); 48 Stat. 988. The Court did not mention this definition, however, and instead focused entirely on the regulation implementing the statute; the regulation did limit the beneficiaries to tribal members. See Mancari, 417 U.S. at 553 n.24 (quoting BIA Manual, which limited preference to those who were "one-fourth or more degree Indian blood and . . . a member of a Federally-recognized tribe"). Thus, without saying so, the Court treated as binding the regulatory implementation of the IRA, perhaps applying (without so stating) the principle of statutory construction that a court should construe a statute so as to avoid constitutional problems.
57. Mancari, 417 U.S. at 554. The footnote to which the Court referred (note 24) is quoted immediately above.
58. The test enunciated in Mancari differed slightly from the ordinary formulation of the rational basis test, as it looked to whether "the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Id. at 555 (emphasis added). The highlighted language arguably indicates that the Mancari test differed from the rational basis test used with other classifications that are not suspect (i.e., whether a law is rationally related to a legitimate government interest). See Newton, supra note 28, at 273 ("[A]lthough the Court used the phrase 'tied rationally,' the analysis in the opinion suggests that the Court actually applied more than minimal rationality scrutiny . . . ."); Ralph W. Johnson & E. Susan Crystal, Indians and Equal Protection, 54 WASH. L. REV. 587, 599 (1979) ("[T]he approach that the Court in fact undertook in Mancari suggests something more than minimum rationality."). The Court's post-Mancari opinions, however, have abandoned any suggestion that the level of scrutiny for equal protection challenges to tribal classifications is more rigorous than that for other nonsuspect classifications. See. e.g., Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 501 (1979) (referring to applicable test as involving "conventional Equal Protection Clause criteria," under which "legislative classifications are valid unless they bear no rational relationship to the State's objectives"); see also id. at 500 (stating that challenged Washington law "must be sustained against an Equal Protection Clause attack if the classifications it employs 'rationally furthe[r] the purpose identified by the State'") (quoting Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976)). The Court in Yakima Nation did not attempt to justify the relevant federal statute under Congress's unique obligation to the Indians (which, it should be noted, might have been difficult in that case); in fact, it did not intimate that such an inquiry was necessary or even relevant. The Court simply suggested that ordinary rational basis review applied, a point driven home by the citation to Murgia, which did not involve Native Americans and was an ordinary equal protection case. See Murgia, 427 U.S. at 314. Similarly, though statements in Mancari suggested that any preference must be related to "Indian self-government," 417 U.S. at 554, 555, later cases have not required such a nexus. For instance, in United States v. Antelope, 430 U.S. 641, 646 (1977), the Court rejected an equal protection challenge to a federal statute providing harsher criminal treatment of tribal members than would have been the case if they had not been American Indians. The Court squarely noted that this differential treatment was unrelated to tribal self-government but indicated that this was of no importance: Both Mancari and Fisher [v. District Court, 424 U.S. 382 (1976),] involved preferences or disabilities directly promoting Indian interests in self-government, whereas in the present case we are dealing not with matters of tribal regulation, but with federal regulation of criminal conduct with Indian country implicating Indian interests. But the principles reaffirmed in Mancari and Fisher point more broadly to the conclusion that federal regulation of Indian affairs is not based upon impermissible classifications. Id.; see also Newton, supra note 28, at 280 ("After Antelope . . . it is difficult to conceive of a federal statute regarding Indian tribes, not motivated by racial discrimination, that could be found to violate the requirements of equal protection.").
59. In light of the great emphasis that Mancari placed on the tribe/race distinction, it is worth noting that both terms may be more fluid than the Court might have believed. As to tribes, the federal government often played a significant role in shaping their structure. Precontact Indians were organized in many different kinds of arrangements, some of which were subtribal (such as family clans). The presence of the federal government and the need for an organized response to the federal government frequently led to the disintegration of subtribal groupings and the prevalence of tribal organization. See STEPHEN CORNELL, THE RETURN OF THE NATIVE 76-86 (1988). Moreover, the government on a number of occasions combined several tribes into one or split a single tribe into several. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 268 (1942). Even today, the government can exert an enormous influence over tribes in determining which it will recognize (and, as importantly, which it will terminate). Although these decisions do not necessarily alter tribes (because all that is terminated is the relationship with the government, see infra note 202), as a practical matter such decisions can have a significant impact on the stability of a tribe. Meanwhile, many commentators have suggested that race is socially constructed, leading them to conclude that racial classifications are fairly malleable. See, e.g., Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CAL. L. REV. 123) (1994); Ian F. Haney-López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994).
60. In light of the great emphasis that Mancari placed on the tribe/race distinction, it is worth noting that both terms may be more fluid than the Court might have believed. As to tribes, the federal government often played a significant role in shaping their structure. Precontact Indians were organized in many different kinds of arrangements, some of which were subtribal (such as family clans). The presence of the federal government and the need for an organized response to the federal government frequently led to the disintegration of subtribal groupings and the prevalence of tribal organization. See STEPHEN CORNELL, THE RETURN OF THE NATIVE 76-86 (1988). Moreover, the government on a number of occasions combined several tribes into one or split a single tribe into several. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 268 (1942). Even today, the government can exert an enormous influence over tribes in determining which it will recognize (and, as importantly, which it will terminate). Although these decisions do not necessarily alter tribes (because all that is terminated is the relationship with the government, see infra note 202), as a practical matter such decisions can have a significant impact on the stability of a tribe. Meanwhile, many commentators have suggested that race is socially constructed, leading them to conclude that racial classifications are fairly malleable. See, e.g., Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CAL. L. REV. 123) (1994); Ian F. Haney-López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994).
61. In light of the great emphasis that Mancari placed on the tribe/race distinction, it is worth noting that both terms may be more fluid than the Court might have believed. As to tribes, the federal government often played a significant role in shaping their structure. Precontact Indians were organized in many different kinds of arrangements, some of which were subtribal (such as family clans). The presence of the federal government and the need for an organized response to the federal government frequently led to the disintegration of subtribal groupings and the prevalence of tribal organization. See STEPHEN CORNELL, THE RETURN OF THE NATIVE 76-86 (1988). Moreover, the government on a number of occasions combined several tribes into one or split a single tribe into several. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 268 (1942). Even today, the government can exert an enormous influence over tribes in determining which it will recognize (and, as importantly, which it will terminate). Although these decisions do not necessarily alter tribes (because all that is terminated is the relationship with the government, see infra note 202), as a practical matter such decisions can have a significant impact on the stability of a tribe. Meanwhile, many commentators have suggested that race is socially constructed, leading them to conclude that racial classifications are fairly malleable. See, e.g., Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CAL. L. REV. 123) (1994); Ian F. Haney-López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994).
62. Although the Court did not directly address the question of the operation of the equal protection component of the Fifth Amendment upon the Indian Commerce Clause (and upon the Treaty Clause, insofar as that clause formed the basis of the Court's decision), its reasoning in Mancari (and the other Supreme Court cases discussing the special relationship) apparently relies on the notion that the equal protection components of the Fifth and Fourteenth Amendments apply with limited force to legislation enacted pursuant to the Indian Commerce Clause. Professor David Williams has criticized this aspect of Mancari, contending that the Equal Protection Clause of the Fourteenth Amendment should be understood as effectively negating Congress's power to single out Indian tribes under the Indian Commerce Clause. See David C. Williams, The Borders of the Equal Protection Clause: Indians us Peoples, 38 UCLA L. REV. 759, 782-86 (1991). Any such evisceration of the Indian Commerce power would be sub silentio in the truest sense of the term. Both the text and the legislative history of the Equal Protection Clause are silent as to its impact on the Indian Commerce Clause. This is not surprising, of course: The Fourteenth Amendment addresses state action, and its framers almost certainly gave no thought to the impact of the Equal Protection Clause on the Indian Commerce Clause (which empowered Congress), particularly because, then as now, relations with Indian tribes were generally treated as the province of the national government. It would have required a mighty far-sighted senator or congressman to anticipate the judicial discovery of the equal protection component of the Fifth Amendment and then to contemplate its possible impact on the Indian Commerce Clause. Relatedly, it is interesting to note that commentators have frequently grounded arguments for expanded rights of racial and ethnic minorities in a broad reading of the equal protection components of the Fifth and Fourteenth Amendments. Here, however, in light of the Supreme Court's construction of equal protection in Adarand and Croson, a narrower view of the impact of the equal protection components of the Fifth and Fourteenth Amendments on the rest of the Constitution would work to preserve programs singling out Indian tribes. This is a function, of course, of the fact that the Supreme Court has found an independent constitutional basis for programs designed for Indian tribes; African Americans may have nowhere to turn in the Constitution other than the Fourteenth Amendment, but Indians have the Indian Commerce Clause. More fundamentally, though, the notion that the Court's narrower interpretation of the Fourteenth Amendment in the Indian tribal context enhances the rights of Indians is faulty. The Court's construction of the Indian Commerce Clause as informing (if not overwhelming) equal protection considerations means that the government has more power: It can enact legislation singling out members of Indian tribes that it cannot enact with respect to other racial or ethnic groups. This legislation may, by and large, benefit Indians, and it may even empower them in some situations, but that is mere coincidence; the group that is empowered (i.e., is given greater latitude and authority) is Congress, not Indian tribes. See also infra text accompanying note 201. The Court has driven this point home in ruling that Congress's broad powers over Indian tribes render classifications that harm Indians, as well as those that benefit them, subject to rational basis review; the constitutional touchstone, according to the Court, is Congress's power, not Indian tribes' empowerment. See Antelope, 430 U.S. at 645-50: Yakima Nation, 439 U.S. at 499-502. For more on the downside of the special relationship, see infra notes 244-47 and accompanying text.
63. See, e.g., Yakima Nation, 439 U.S. at 463; Antelope, 430 U.S. at 641; Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); Fisher v. District Court, 424 U.S. 382 (1976). There have also been equal protection challenges in the Supreme Court to government programs benefiting several minority groups, including Native Americans (defined by race, not tribal membership); all of the major challenges to affirmative action programs have involved laws that benefited, inter alia, Native Americans. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2102 (1995); Metro Broad., Inc. v. FCC, 497 U.S. 547, 553 n.1 (1990); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478 (1989); Fullilove v. Klutznick, 448 U.S. 448, 454 (1980). In none of these cases did the challenged application involve a preference for a Native American; on the other hand, in none of them did the Supreme Court give any reason to conclude that a different level of scrutiny would apply to preferences for Native Americans. See infra notes 136-42 and accompanying text.
64. See Confederated Salish & Kootenai Tribes, 425 U.S. at 479-80 ("We need not dwell at length on this [equal protection] argument [challenging special treatment for Indian tribes], for . . . we think it is foreclosed by our recent decision in Morton v. Mancari . . . ."); see also Yakima Nation, 439 U.S. at 500-01; Antelope, 430 U.S. at 646-47; Fisher, 424 U.S. at 390-91; cf. infra notes 122-31 and accompanying text. Yakima Nation, decided in 1979, was the last Supreme Court case to address squarely an equal protection challenge to a law singling out tribal Indians. The Court has, in fact, rarely cited Mancari since then; the only case that has placed any weight on Mancari since 1980 is Duro v. Reina, 495 U.S. 676 (1990), in which the Court cited Mancari and Antelope in support of "the Federal Government's broad authority to legislate with respect to enrolled Indians as a class, whether to impose burdens or benefits." Id. at 692. It is possible, especially in light of Croson, Metro Broadcasting, and Adarand (all of which were decided after Yakima Nation) that, if the issue arises again, the Court will conclude that even political classifications based on tribal membership are subject to strict scrutiny. It is also possible - though much less likely - that the Court would abandon the tribe/race dichotomy in favor of minimal scrutiny for all legislation benefiting people who are racially classified as Native Americans. Such possible changes in the Supreme Court's jurisprudence are beyond the scope of this Article.
65. See 1 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM 1778-1854, at 3 (1938); GAVAN DAWS, SHOAL OF TIME at xii-xiii (1968); Wilkinson, supra note 20, at 227-28.
66. See 1 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM 1778-1854, at 3 (1938); GAVAN DAWS, SHOAL OF TIME at xii-xiii (1968); Wilkinson, supra note 20, at 227-28.
67. See COHEN, supra note 2, at 798-99; Neil M. Levy, Native Hawaiian Land Rights, 63 CAL. L. REV. 848, 848-49 (1975); LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY 6-7 (1961).
68. See COHEN, supra note 2, at 798-99; Neil M. Levy, Native Hawaiian Land Rights, 63 CAL. L. REV. 848, 848-49 (1975); LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY 6-7 (1961).
69. See COHEN, supra note 2, at 798-99; Neil M. Levy, Native Hawaiian Land Rights, 63 CAL. L. REV. 848, 848-49 (1975); LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY 6-7 (1961).
70. See 1 KUYKENDALL, supra note 45, at 32-51.
71. See Bradley Hideo Keikiokalani Cooper, Comment, A Trust Divided Cannot Stand - An Analysis of Native Hawaiian Land Rights, 67 TEMP. L. REV. 699, 703 (1994); COHEN, supra note 2, at 799. As the Cohen treatise noted, Western recognition of the Hawaiian kingdom "is in contrast to the status of tribes in the Americas, whose sovereignty was considered subordinate to 'discovering' nations." COHEN, supra note 2, at 799 (citation omitted).
72. See 1 KUYKENDALL, supra note 45, at 65-70; Maivân Clech Lâm, The Kuleana Act Revisited: The Survival of Traditional Hawaiian Commoner Rights in Land, 64 WASH. L. REV. 233, 238 (1989); Wilkinson, supra note 20, at 228; see also COHEN, supra note 2, at 799 (noting Western influence and collapse of traditional systems).
73. See Levy, supra note 46, at 854-58; Lâm, supra note 49, at 236-37; see also 1 KUYKENDALL, supra note 45, at 294 (noting that "extensive areas of crown, government, and chiefs' lands were useless mountain wastes or lava strewn deserts," whereas nearly all the commoners' lands were "very valuable for native agriculture"); JON J. CHINEN, THE GREAT MAHELE: HAWAII'S LAND DIVISION OF 1848, at 31 (1958) (noting that tracts awarded "to the native tenants consisted chiefly of taro lands and were considered the more valuable lands in the Islands").
74. See Levy, supra note 46, at 854-58; Lâm, supra note 49, at 236-37; see also 1 KUYKENDALL, supra note 45, at 294 (noting that "extensive areas of crown, government, and chiefs' lands were useless mountain wastes or lava strewn deserts," whereas nearly all the commoners' lands were "very valuable for native agriculture"); JON J. CHINEN, THE GREAT MAHELE: HAWAII'S LAND DIVISION OF 1848, at 31 (1958) (noting that tracts awarded "to the native tenants consisted chiefly of taro lands and were considered the more valuable lands in the Islands").
75. See Levy, supra note 46, at 854-58;
76. see also NOEL J. KENT, HAWAII: ISLANDS UNDER THE INFLUENCE 32 (1993) (contending that "[t]he ouster of the Hawaiian people from the land was an irreparable blow . . . . [that] had the ultimate effect of undermining, once and for all, the viability of the 'Hawaiian way'").
77. See Levy, supra note 46, at 858-61; COHEN, supra note 2, at 799-800; see also Sumner J. La Croix & James Roumasset, The Evolution of Private Property in Nineteenth-Century Hawaii, 50 J. ECON. HIST. 829, 845 (1990); DEPARTMENT OF PUB. INSTRUCTION, REPORT OF THE HAWAII GENERAL SUPERINTENDENT OF THE CENSUS, 1896, at 72-83 (1897) [hereinafter 1896 CENSUS REPORT] (noting percentage of Native Hawaiians in various occupations).
78. See Levy, supra note 46, at 858-61; COHEN, supra note 2, at 799-800; see also Sumner J. La Croix & James Roumasset, The Evolution of Private Property in Nineteenth-Century Hawaii, 50 J. ECON. HIST. 829, 845 (1990); DEPARTMENT OF PUB. INSTRUCTION, REPORT OF THE HAWAII GENERAL SUPERINTENDENT OF THE CENSUS, 1896, at 72-83 (1897) [hereinafter 1896 CENSUS REPORT] (noting percentage of Native Hawaiians in various occupations).
79. See Levy, supra note 46, at 858-61; COHEN, supra note 2, at 799-800; see also Sumner J. La Croix & James Roumasset, The Evolution of Private Property in Nineteenth-Century Hawaii, 50 J. ECON. HIST. 829, 845 (1990); DEPARTMENT OF PUB. INSTRUCTION, REPORT OF THE HAWAII GENERAL SUPERINTENDENT OF THE CENSUS, 1896, at 72-83 (1897) [hereinafter 1896 CENSUS REPORT] (noting percentage of Native Hawaiians in various occupations).
80. See Levy, supra note 46, at 850, 860; FUCHS, supra note 46, at 12-13, 68-69.
81. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
82. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
83. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
84. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
85. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
86. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
87. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
88. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
89. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
90. SEE HAWAIIAN ALMANAC AND ANNUAL FOR 1893, AT 11, 14 (1892); RUSS APPLE & PEG APPLE, LAND, LILI'UOKALANI, AND ANNEXATION 127-30 (1979); ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 1778-1965, at 74, 182 (1968); W .D. ALEXANDER, A BRIEF HISTORY OF THE HAWAIIAN PEOPLE 313 (1891); U.S. PARKER, THE ECONOMIC HISTORY OF THE HAWAIIAN ISLANDS 81 (1907); COHEN, supra note 2, at 800 n.21; ANDREW W. LIND, HAWAII'S PEOPLE 20-22 (4th ed. 1980); see also 1896 CENSUS REPORT, supra note 52, at 31-39; CENSUS OF THE UNITED STATES TAKEN IN THE YEAR 1900, at ccxvi-ccxix (1902). The current percentage of Native Hawaiians is the subject of some dispute. The 1990 Census, which relied on self-identification, found approximately 140,000 Native Hawaiians, or 12.5% of the population. The State of Hawaii also made a tabulation in 1990 (based on the racial background of the respondents' parents) and found approximately 205,000 Native Hawaiians, or 19% of the population (and its 1992 figures, the latest available, show an increase to 221,000 people). See OFFICE OF HAWAIIAN AFFAIRS, NATIVE HAWAIIAN DATA BOOK 10 (1994); HAWAII DEP'T OF HEALTH, HEALTH SURVEILLANCE SURVEY, REPORT FOR YEARS 1989-1992, at A-66 (1996); see also ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII 34-35, 104-09 (1989) (comparing methodologies of Census and health survey).
91. See McPherson, supra note 19, at 460-61; Cooper, supra note 48, at 704; RALPH S. KUYKENDALL, CONSTITUTIONS OF THE HAWAIIAN KINGDOM 44-50 (1940). In light of the enormous powers seized by Westerners, some have called the imposition of the Bayonet Constitution a coup d'état. See Lesley Karen Friedman, Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts, 14 U. HAW. L. REV. 519, 532-33 (1992); SYLVESTER K. STEVENS, AMERICAN EXPANSION IN HAWAII 1842-1858, at 151-53, 189 (1968).
92. See McPherson, supra note 19, at 460-61; Cooper, supra note 48, at 704; RALPH S. KUYKENDALL, CONSTITUTIONS OF THE HAWAIIAN KINGDOM 44-50 (1940). In light of the enormous powers seized by Westerners, some have called the imposition of the Bayonet Constitution a coup d'état. See Lesley Karen Friedman, Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts, 14 U. HAW. L. REV. 519, 532-33 (1992); SYLVESTER K. STEVENS, AMERICAN EXPANSION IN HAWAII 1842-1858, at 151-53, 189 (1968).
93. See McPherson, supra note 19, at 460-61; Cooper, supra note 48, at 704; RALPH S. KUYKENDALL, CONSTITUTIONS OF THE HAWAIIAN KINGDOM 44-50 (1940). In light of the enormous powers seized by Westerners, some have called the imposition of the Bayonet Constitution a coup d'état. See Lesley Karen Friedman, Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts, 14 U. HAW. L. REV. 519, 532-33 (1992); SYLVESTER K. STEVENS, AMERICAN EXPANSION IN HAWAII 1842-1858, at 151-53, 189 (1968).
94. See McPherson, supra note 19, at 460-61; Cooper, supra note 48, at 704; RALPH S. KUYKENDALL, CONSTITUTIONS OF THE HAWAIIAN KINGDOM 44-50 (1940). In light of the enormous powers seized by Westerners, some have called the imposition of the Bayonet Constitution a coup d'état. See Lesley Karen Friedman, Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts, 14 U. HAW. L. REV. 519, 532-33 (1992); SYLVESTER K. STEVENS, AMERICAN EXPANSION IN HAWAII 1842-1858, at 151-53, 189 (1968).
95. In 1993, Congress passed a joint resolution that "acknowledge[d] the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and . . . offer[ed] an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii." Pub. L. No. 103-150, 107 Stat. 1510 (1993). The resolution condemns the overthrow in strong language, but its operative provisions are modest (they merely acknowledge and apologize for the overthrow and its ramifications) and appear to create no substantive rights. See id. § 1 (acknowledging overthrow, encouraging reconciliation, and apologizing on behalf of United States); id. § 3 (providing that nothing in resolution serves as settlement of claims); S. REP. NO. 103-126, at 35 (1993) (averring that "enactment of S.J. Res. 19 will not result in any changes in existing law"); see also infra note 195.
96. See 3 RALPH KUYKENDALL, THE HAWAIIAN KINGDOM 1874-1893, at 582-605 (1967).
97. See Land Act of 1895, 1895 Haw. Sess. Laws 49-83; Levy, supra note 46, at 863-64. Queen Lili'uokalani brought a suit against the United States demanding compensation for her expropriated lands, but the Court of Claims rejected her claim. See Liliuokalani v. United States, 45 Ct. Cl. 418 (1910);
98. see also Patrick W. Hanifin, Hawaiian Reparations: Nothing Lost, Nothing Owed, 17 HAW. BAR J. 107, 110-11 (1982) (contending that Hawaiian government officials control led Crown lands and that Queen Lili'uokalani "had only a right to receive the income of the Crown lands for her life").
99. Act of July 7, 1898, 30 Stat. 750.
100. See id.; see also Levy, supra note 46, at 864; COHEN, supra note 2, at 801.
101. 30 Stat. 750. An 1899 opinion of the United States Attorney General construed this language as subject[ing] the public lands in Hawaii to a special trust, limiting the revenue from or proceeds of the same to the uses of the inhabitants of the Hawaiian Islands for educational or other public purposes. . . . The effect of the language [in the Act] is to vest in Congress the exclusive right, by special enactment, to provide for the disposition of public lands in Hawaii. 22 Op. Att'y Gen. 574, 576 (1899). The 1900 Organic Act for the Territory of Hawaii, ch. 339, 31 Stat. 141, which delineated the structure of government for the territory, also made no special provisions for Native Hawaiians. It did, however, explicitly provide that all citizens of the Republic of Hawaii - which included Native Hawaiians as well as Westerners - were citizens of the United States and of the Territory of Hawaii. See id.
102. In fact, Native Hawaiians "had a clear majority of voters through the 1922 election, and more than any other group until 1938." FUCHS, supra note 46, at 161; see 1900 Organic Act for the Territory of Hawaii ch. 339; COHEN, supra note 2, at 801 & n.32; DAWS, supra note 45, at 294.
103. The legislative history of the HHCA focuses on improving the conditions of landless Native Hawaiians. See, e.g., Proposed Amendments to the Organic Act of the Territory of Hawaii: Hearings Before the House Comm. on the Territories, 66th Cong. 129-31 (1920) [hereinafter 1920 Hearings] (statement of Franklin Lane, Secretary of Interior). Some commentators have suggested, however, that the real purpose of the HHCA was not to benefit Native Hawaiians but instead to protect Westerners by removing certain lands from those available for homesteading. See, e.g., Levy, supra note 46, at 865 ("Although the [HHCA] may be cited as a humanitarian effort for the surviving descendants of an indigenous people, it was enacted by sugar barons who would not tolerate accelerated homesteading."). A related theory is that the real purpose of the HHCA was to thwart Asian homesteading. See Bob Stauffer, Real Politics, HONOLULU WKLY., Oct. 19, 1994, at 4 (referring to HHCA as "blatantly racist (and anti-Asian) package").
104. The HHCA has an unusual history. Congress passed it in 1921 and subsequently amended it, as it might amend any ordinary legislation. In 1959, the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), provided, inter alia, that "[a]s a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of said State." Id. § 4. The Admission Act also provided that Hawaii had the power to amend certain administrative provisions of the HHCA, but that all other provisions could be amended or repealed "only with the consent of the United States, and in no other manner." Id. The United States thus imposed the Act on Hawaii - as part of its constitution, no less - but retained the authority to approve substantive changes (though Coyle v. Smith, 221 U.S. 559 (1911), might be read to suggest that the federal government's retention of such authority is constitutionally infirm). Since 1959, the Hawaii legislature has passed a number of proposed amendments to the HHCA, many of which required the consent of Congress. See infra notes 65, 67, 83, 84; see also Admission Act § 4 (delineating which changes require federal approval). The United States has enacted two different statutes agreeing to many (though not all) of these amendments, but on both occasions the President expressed concerns about the constitutionality of giving benefits based on an apparently racial definition and suggested that the United States no longer be involved in the process of amending the HHCA. President Bush, for instance, issued a signing statement for Pub. L. No. 102-398, 106 Stat. 1953 (1992), in which he stated that federal ratification violated principles of federalism, and that Hawaii could competently administer the HHCA on its own. See Statement by President George Bush Upon Signing S.J. Res. 23, 28 WEEKLY COMP. PRES. Doc. 1876 (Oct. 6, 1992). He then stated: Because the Act employs an express racial classification in providing that certain public lands may be leased only to persons having a certain percentage of blood "of the races inhabiting the Hawaiian Islands prior to 1778," the continued application of the Act raises serious equal protection questions. . . . Thus, while I am signing this resolution because it substantially defers to the State's judgment, I urge that the Congress amend the "Act to provide for the admission of the State of Hawaii into the Union," Public Law 86-3, so that in the future the State of Hawaii may amend the Hawaiian Homes Commission Act without the consent of the United States, and note that the racial classifications contained in the Act have not been given the type of careful consideration by the Federal Government that would shield them from ordinary equal protection scrutiny. Id.; see also Statement by President Ronald Reagan Upon Signing H.J. Res. 17, 22 WEEKLY COMP. PRES. DOC. 1462 (Oct. 27, 1986) (noting equal protection concerns and urging Congress to amend Act so that congressional consent would no longer be necessary). Congress did not follow Presidents Bush's and Reagan's suggestions about eliminating federal involvement in the HHCA amendment process. In 1995, Congress passed legislation that, though not consenting to any other amendments to the HHCA passed by Hawaii, creates a procedure for congressional approval of Hawaii's proposed amendments: Under the statute, if Hawaii passes a proposed amendment to the HHCA, the Chairman of the HHCA will transmit it to the Interior Secretary, and if the Secretary determines that the proposed amendment requires congressional approval, he will submit it to Congress. See Pub. L. No. 104-42, § 204, 109 Stat. 353, 361-62 (1995) (to be codified in 48 U.S.C. ch. 3).
105. The HHCA has an unusual history. Congress passed it in 1921 and subsequently amended it, as it might amend any ordinary legislation. In 1959, the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), provided, inter alia, that "[a]s a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of said State." Id. § 4. The Admission Act also provided that Hawaii had the power to amend certain administrative provisions of the HHCA, but that all other provisions could be amended or repealed "only with the consent of the United States, and in no other manner." Id. The United States thus imposed the Act on Hawaii - as part of its constitution, no less - but retained the authority to approve substantive changes (though Coyle v. Smith, 221 U.S. 559 (1911), might be read to suggest that the federal government's retention of such authority is constitutionally infirm). Since 1959, the Hawaii legislature has passed a number of proposed amendments to the HHCA, many of which required the consent of Congress. See infra notes 65, 67, 83, 84; see also Admission Act § 4 (delineating which changes require federal approval). The United States has enacted two different statutes agreeing to many (though not all) of these amendments, but on both occasions the President expressed concerns about the constitutionality of giving benefits based on an apparently racial definition and suggested that the United States no longer be involved in the process of amending the HHCA. President Bush, for instance, issued a signing statement for Pub. L. No. 102-398, 106 Stat. 1953 (1992), in which he stated that federal ratification violated principles of federalism, and that Hawaii could competently administer the HHCA on its own. See Statement by President George Bush Upon Signing S.J. Res. 23, 28 WEEKLY COMP. PRES. Doc. 1876 (Oct. 6, 1992). He then stated: Because the Act employs an express racial classification in providing that certain public lands may be leased only to persons having a certain percentage of blood "of the races inhabiting the Hawaiian Islands prior to 1778," the continued application of the Act raises serious equal protection questions. . . . Thus, while I am signing this resolution because it substantially defers to the State's judgment, I urge that the Congress amend the "Act to provide for the admission of the State of Hawaii into the Union," Public Law 86-3, so that in the future the State of Hawaii may amend the Hawaiian Homes Commission Act without the consent of the United States, and note that the racial classifications contained in the Act have not been given the type of careful consideration by the Federal Government that would shield them from ordinary equal protection scrutiny. Id.; see also Statement by President Ronald Reagan Upon Signing H.J. Res. 17, 22 WEEKLY COMP. PRES. DOC. 1462 (Oct. 27, 1986) (noting equal protection concerns and urging Congress to amend Act so that congressional consent would no longer be necessary). Congress did not follow Presidents Bush's and Reagan's suggestions about eliminating federal involvement in the HHCA amendment process. In 1995, Congress passed legislation that, though not consenting to any other amendments to the HHCA passed by Hawaii, creates a procedure for congressional approval of Hawaii's proposed amendments: Under the statute, if Hawaii passes a proposed amendment to the HHCA, the Chairman of the HHCA will transmit it to the Interior Secretary, and if the Secretary determines that the proposed amendment requires congressional approval, he will submit it to Congress. See Pub. L. No. 104-42, § 204, 109 Stat. 353, 361-62 (1995) (to be codified in 48 U.S.C. ch. 3).
106. The HHCA has an unusual history. Congress passed it in 1921 and subsequently amended it, as it might amend any ordinary legislation. In 1959, the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), provided, inter alia, that "[a]s a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of said State." Id. § 4. The Admission Act also provided that Hawaii had the power to amend certain administrative provisions of the HHCA, but that all other provisions could be amended or repealed "only with the consent of the United States, and in no other manner." Id. The United States thus imposed the Act on Hawaii - as part of its constitution, no less - but retained the authority to approve substantive changes (though Coyle v. Smith, 221 U.S. 559 (1911), might be read to suggest that the federal government's retention of such authority is constitutionally infirm). Since 1959, the Hawaii legislature has passed a number of proposed amendments to the HHCA, many of which required the consent of Congress. See infra notes 65, 67, 83, 84; see also Admission Act § 4 (delineating which changes require federal approval). The United States has enacted two different statutes agreeing to many (though not all) of these amendments, but on both occasions the President expressed concerns about the constitutionality of giving benefits based on an apparently racial definition and suggested that the United States no longer be involved in the process of amending the HHCA. President Bush, for instance, issued a signing statement for Pub. L. No. 102-398, 106 Stat. 1953 (1992), in which he stated that federal ratification violated principles of federalism, and that Hawaii could competently administer the HHCA on its own. See Statement by President George Bush Upon Signing S.J. Res. 23, 28 WEEKLY COMP. PRES. Doc. 1876 (Oct. 6, 1992). He then stated: Because the Act employs an express racial classification in providing that certain public lands may be leased only to persons having a certain percentage of blood "of the races inhabiting the Hawaiian Islands prior to 1778," the continued application of the Act raises serious equal protection questions. . . . Thus, while I am signing this resolution because it substantially defers to the State's judgment, I urge that the Congress amend the "Act to provide for the admission of the State of Hawaii into the Union," Public Law 86-3, so that in the future the State of Hawaii may amend the Hawaiian Homes Commission Act without the consent of the United States, and note that the racial classifications contained in the Act have not been given the type of careful consideration by the Federal Government that would shield them from ordinary equal protection scrutiny. Id.; see also Statement by President Ronald Reagan Upon Signing H.J. Res. 17, 22 WEEKLY COMP. PRES. DOC. 1462 (Oct. 27, 1986) (noting equal protection concerns and urging Congress to amend Act so that congressional consent would no longer be necessary). Congress did not follow Presidents Bush's and Reagan's suggestions about eliminating federal involvement in the HHCA amendment process. In 1995, Congress passed legislation that, though not consenting to any other amendments to the HHCA passed by Hawaii, creates a procedure for congressional approval of Hawaii's proposed amendments: Under the statute, if Hawaii passes a proposed amendment to the HHCA, the Chairman of the HHCA will transmit it to the Interior Secretary, and if the Secretary determines that the proposed amendment requires congressional approval, he will submit it to Congress. See Pub. L. No. 104-42, § 204, 109 Stat. 353, 361-62 (1995) (to be codified in 48 U.S.C. ch. 3).
107. HHCA § 201(a)(7). As originally enacted in 1921, the HHCA designated approximately 200,000 acres of land in Hawaii as "available lands" that would be administered by a Hawaiian Homes Commission (HHC). Id. §§ 202-03. The HHCA authorized the HHC to award 99-year leases (at a prescribed rent of one dollar per year) of up to 80 acres of agricultural lands, up to 500 acres of "first class pastoral lands," and up to 1000 acres of "second class pastoral lands." Id. § 207. Only "native Hawaiians" (i.e., those with "not less than one-half part of the blood of the races inhabiting the Hawaiian islands previous to 1778") could be lessees. Id. §§ 201(a)(7), 208. Between 1921 and 1959, the main change to this arrangement was the addition of two other types of land for lease: up to one hundred acres of irrigated pastoral lands and, more significantly, "not more than one acre of any class of land to be used as a residence lot," which thus allowed homesteading for residential (rather than only agricultural or pastoral) purposes, see 48 U.S.C. § 701 (1958). In fact, some of the designated lands under the HHCA are located in urban areas, such as approximately 134 acres in the city of Honolulu, just behind an area known as Punchbowl. One other change of note was that the HHC was given the authority to trade available lands for publicly owned land of an equal value; the new land would "assume the status of available lands as though the same were originally designated." Id. § 698(4). Since 1959, the Hawaii legislature (with Congress's consent) has broadened the scope of the HHCA well beyond the provision of long-term homestead leases. For instance, the Department of Hawaiian Home Lands (which oversees the implementation of the HHCA through the HHC) now has the authority to: construct multifamily housing, see HHCA § 207(a); enter into contracts with real estate companies to develop available lands for commercial and multipurpose projects for the benefit of Native Hawaiians, see id. § 220.5; issue revenue bonds to pay for its many different kinds of development, see id. § 204.5; form an insurance company (or acquire an existing one) to provide "homeowner protection" for lessees, id. § 219.1(b); and create "enterprise zones" on available lands if it "will result in economic benefits to native Hawaiians," id. § 227.
108. See Act of Mar. 18, 1959, Pub. L. No. 86-3, 73 Stat. 4.
109. See supra note 64. In the years since Hawaii's statehood in 1959, the Hawaii legislature has approved a number of changes to the HHCA. Some of these additions were valid upon enactment by Hawaii because they did not require the consent of the United States, see Admission Act § 4, 73 Stat. 5 (1959); other changes did require such consent but received it in one of the two federal statutes that specifically approved certain amendments to the HHCA. An example of the latter was the reduction of the blood quantum requirements for purposes of the succession of certain relatives. See infra text accompanying notes 82-84; see also supra notes 64-65. Interestingly, in both federal statutes approving changes to the HHCA, the President's signing statement articulated serious equal protection concerns about the limitation of benefits to Native Hawaiians. See supra note 64; infra note 83. One amendment to the HHCA that Hawaii approved in 1990 but to which Congress has not consented is a purpose section of the HHCA, which articulates as one purpose "the preservation of the values, traditions, and culture of native Hawaiians." HHCA § 101(a); see also id. § 101(b)(5) (listing as one purpose that "the traditions, culture and quality of life of native Hawaiians shall be forever self-sustaining"). It bears note that the purpose section also seeks to support the extension of the special relationship to Native Hawaiians: In recognition of the solemn trust created by this Act, and the historical government to government relationship between the United States and the Kingdom of Hawaii, the United States and the State of Hawaii hereby acknowledge the trust established under this Act and affirm their fiduciary duty to faithfully administer the provisions of this Act on behalf of the native Hawaiian beneficiaries of the Act. Id. § 101(c).
110. Admission Act § 5(f) (emphasis added); see also id. § 5(b) (describing cessation of land).
111. See HAW. CONST. art. XII, §§ 4-6; HAW. REV. STAT. ANN. § 10-13.5 (Michie 1995); see also 1993-1994 OFF. HAWAIIAN AFF. BIENNIAL REPORT (I MUA E NA POKI'I) 5 [hereinafter OHA BIENNIAL REPORT]; Van Dyke, supra note 19, at 69. The 1978 constitutional amendments produced other changes as well. For example, they created a "Native Hawaiian rehabilitation fund," into which 30% of state receipts from lands previously cultivated as sugarcane lands and from water licenses is deposited. Before Hawaiian statehood, those receipts had been designated for loans to lessees of available lands, but the state constitutional amendments creating OHA in 1978 changed the designated purpose of the receipts; now, the Department "shall use this money solely for the rehabilitation of native Hawaiians which shall include, but not be limited to, the educational, economic, political, social, and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved and perpetuated." HHCA § 213(b)(5)(A); cf. 48 U.S.C. 707(b) (setting aside same receipts for loans to lessees).
112. See HAW. CONST. art. XII, §§ 4-6; HAW. REV. STAT. ANN. § 10-13.5 (Michie 1995); see also 1993-1994 OFF. HAWAIIAN AFF. BIENNIAL REPORT (I
113. See OHA BIENNIAL REPORT, supra note 69, at 9-41. It should be noted that there are other state programs that benefit Native Hawaiians. Many of them are designed to ensure Native Hawaiians' use of - and to prevent non-Native Hawaiians from acquiring any interest in - property on the roughly 200,000 acres that are subject to the HHCA. See HHCA § 209 (specifying rules for successors to leases). Others are benefits for Native Hawaiians unrelated to the HHCA that fall outside the scope of OHA. For instance, by statute Kaho'olawe Island is reserved for the practice of Native Hawaiian traditions; the only other acceptable uses are preservation, revegetation, and education.
114. See HAW. REV. STAT. ANN. § 6K-3 (Michie 1995).
115. Admission Act § 5(f) (quoted above).
116. HAW. REV. STAT. ANN. § 10-2. This definition of "Hawaiians" may cause some confusion, as it means that an individual who was born in Hawaii but who lacks native blood is not a "Hawaiian" for purposes of OHA. As was noted above, this Article attempts to avoid such confusion by referring to all categorizations of descendants of pre-1778 inhabitants as "Native Hawaiians." See supra note 6.
117. See HAW. REV. STAT. ANN. § 10-2. See generally HAW. CONST. art. XII, §§ 4-6 (creating OHA and laying out its general purposes); HAW. REV. STAT. ANN. §§ 10-1 to 10-21 (laying out specific purposes and duties of OHA). Obviously, the category of "Hawaiians" encompasses all "native Hawaiians." According to OHA figures, adding those with any percent of native blood more than doubles the number of eligible Native Hawaiians (from approximately 81,000 with 50% or more native blood to approximately 209,000 with any percentage of native blood). See OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 34.
118. See HAW. CONST. art XII, § 5. An opinion of the Hawaii Attorney General found the limitation of the franchise to Native Hawaiians (as well as OHA itself) constitutional, relying on a reading of Mancari as approving preferences for aboriginal peoples. See 80-8 Op. Haw. Att'y Gen. 7 (1980); see also infra note 106. The Hawaii Attorney General has interpreted the limitation of the franchise strictly; another 1980 opinion ruled that adopted children of Native Hawaiians could not vote in the OHA elections, because "each voter must meet the qualification of being 'Hawaiian' in his or her own right, and not on the basis of the racial descent of his or her adopted parents." 80-6 Op. Haw. Att'y Gen. 2 (1980); see also infra text accompanying note 86.
119. See Admission Act § 5(f).
120. See 83-2 Op. Haw. Att'y. Gen. (1983).
121. See, e.g., Price v. Akaka, 928 F.2d 824 (9th Cir. 1990); Hoohuli v. Ariyoshi, 631 F. Supp. 1153 (D. Haw. 1986).
122. See OHA BIENNIAL REPORT, supra note 69, at 5.
123. HHCA §§ 201(a)(7), 208.
124. See id. § 208(5) ("The lessee shall not in any manner transfer to, or mortgage, pledge, or otherwise hold for the benefit of, any other person, except a native Hawaiian, and then only upon the approval of the [HHC] . . . .").
125. See id. § 209. Moreover, any violation of the HHCA's requirements gives the HHC the authority to "declare [a lessee's or her successor's] interest in [a] tract and all improvements thereon to be forfeited and the lease in respect thereto canceled," to remove her from the land, and to lease it anew to an eligible Native Hawaiian. Id. § 210.
126. Supporters of the reduction argued that the existing 50% blood requirement for succession adversely affected those Native Hawaiians with more than 50% (but less than 100%) native blood who married non-Natives and thus whose spouse and children could not qualify as successors to the lease. See H.R. REP. No. 99-473, at 2 (1986) ("In many instances, homesteaders of fifty percent Hawaiian ancestry have spouses who are non-Native Hawaiian and neither the homesteader's spouse nor offspring have the minimum blood requirement to qualify as successors."); Consenting to the Amendments Enacted by the Legislature of the State of Hawaii to the Hawaiian Homes Commission Act, 1920: Hearing on H.R.J. Res. 17 Before the Senate Comm. on Energy and Natural Resources, 99th Cong. 85 (1986) (statement of Gard Kealoha, Office of Hawaiian Affairs) ("The 50% blood quantum requirement has caused many horror stories relating to the eviction of families from Hawaiian Home Lands homestead areas."). Opponents argued that the reduction in the blood quantum would adversely affect those currently eligible (i.e., those with 50% or more native blood). See H.R. REP. No. 99-473, at 7 ("We are opposed to H.J. Res. 17 primarily because we do not believe that the Committee has taken into consideration the views of the affected people, the currently qualified Native Hawaiians.").
127. HHCA § 209. This alteration required congressional approval, which was obtained in the first of two federal acts of approval; in his signing statement, President Reagan singled out this change, stating that his equal protection concerns about the HHCA "are exacerbated by the amendment that reduces the native-blood requirement to one-quarter, thereby casting additional doubt on the original justification for the classification." Statement of President Ronald Reagan on Signing H.J. Res. 17, 22 WEEKLY COMP. PRES. DOC. 1462 (Oct. 27, 1986); see also supra note 64.
128. The Hawaii legislature has passed (but Congress has not consented to) legislation that would further loosen the rules on succession. The changes would add grandchildren to the list of those who could succeed to leases with only 25% native blood and would provide that, if there were no spouse, child, or grandchild who met the 25% requirement, then the lease could go to parents, siblings, or widows or widowers of relatives. See HHCA § 209(a) (1995 Supp. & historical notes).
129. HAW. REV. STAT. ANN. § 578-16(a) (Michie 1993).
130. See 73-18 Op. Haw. Att'y Gen. 5 (1973); see also supra note 74.
131. 20 U.S.C. §§ 7901-12 (1994).
132. 42 U.S.C. §§ 11701-14 (1994).
133. Id. §§ 3001-58.
134. 29 U.S.C. §§ 701-95i (1994).
135. 42 U.S.C. §§ 2991-92.
136. 16 U.S.C. § 470 (1994).
137. Pub. L. No. 100-146, 101 Stat. 840 (1987) (codified as amended in scattered sections of 42 U.S.C.).
138. Pub. L. No. 101-527, 104 Stat. 2311 (1990) (codified as amended in scattered sections of 42 U.S.C.).
139. 25 U.S.C. §§ 1601-82 (1994).
140. A few simply incorporate the HHCA's definition. See Admission Act of 1959, 48 U.S.C. ch. 3, § 5(f) (1994); 38 U.S.C. § 3764(3) (1994); Pub. L. No. 104-42, § 202(2), 109 Stat. 353, 357 (1995) (to be codified at 48 U.S.C. Ch. 3). Other statutes do not explicitly refer to the HHCA but use substantially the same definition. See, e.g., 12 U.S.C. § 1715z-12(d) (1994) ("The term 'native Hawaiian' means any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands before January 1, 1778."); 16 U.S.C. § 396a(b) (same); id. § 410jj-6 (same).
141. There are slight variations among these statutes. See, e.g., 16 U.S.C. § 396d(e) ("For the purposes of this section, native Hawaiians are defined as any lineal descendants of the race inhabiting the Hawaiian Islands prior to the year 1778."); id. § 470w(17) ("'Native Hawaiian' means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii."); 25 U.S.C. § 3001(10) (using language identical to that in 16 U.S.C. § 470w); 20 U.S.C. § 80q-14(11) (1994) ("[T]he term 'Native Hawaiian' means a member or descendant of the aboriginal people who, before 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawaii."); id. § 2313(a)(1)(B) ("[T]he term 'Hawaiian native' means any individual any of whose ancestors were natives, prior to 1778, of the area which now comprises the State of Hawaii."); id. § 7118(b) (using language identical to that in id. § 2313); 29 U.S.C. § 1503(11) (1994) (same); 20 U.S.C. § 351a(16) ("'Hawaiian native' means any individual any of whose ancestors were natives prior to 1778 in the area which now comprises the State of Hawaii."); id. § 4402(6) ("The term 'Native Hawaiian' means any descendant of a person who, prior to 1778, was a native of the Hawaiian Islands."); id. § 7912(1) ("The term 'Native Hawaiian' means any individual who is (A) a citizen of the United States; and (B) a descendant of the aboriginal people, who prior to 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawai'i . . . ."); 42 U.S.C. § 11711(3) (using language identical to that in 20 U.S.C. § 7912); id. § 254s(c) ("[T]he term 'Native Hawaiian' means any individual who is (1) a citizen of the United States, (2) a resident of the State of Hawaii, and (3) a descendant of the aboriginal people, who prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii."); id. § 2992c(3) ("'Native Hawaiian' means any individual any of whose ancestors were natives of the area which consists of the Hawaiian Islands prior to 1778."); id. § 3057k (using language identical to that in id. § 2992c(3)).
142. See. e.g., 20 U.S.C. § 7902 (containing findings); 42 U.S.C. § 11701 (same).
143. 115 S. Ct. 2097 (1995).
144. 488 U.S. 469 (1989).
145. This distinction is, of course, critical in light of Adarand and Croson, as those cases reflect the Court's vigilance in subjecting all governmental racial classifications to heightened scrutiny.
146. Morton v. Mancari, 417 U.S. 535, 554 (1974).
147. HHCA § 201(a)(7). On the various forms of statutory language (and the 50% versus any percent dichotomy), see supra notes 71-86, 96-97 and accompanying text.
148. The entirety of the reasoning in the first opinion, Naliielua v. Hawaii, 795 F. Supp. 1009, 1013 (D. Haw. 1990), aff'd on other grounds, No. 90-15842, 1991 WL 148771 (9th Cir. 1991), was that Native Hawaiians and American Indians are indigenous peoples. See infra text accompanying notes 105-06; see also supra note 18. The second opinion, Rice v. Cayetano, Nos. Civ.96-00390 DAE, Civ.96-00616 DAE, 1996 WL 562072 (D. Haw. Sept. 6, 1996), relied in part on Naliielua and in part on two other arguments addressed here: that United States v. John, 437 U.S. 634 (1978), and Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), expanded Mancari's application beyond federally recognized tribes, see infra Section III.A; and that Congress's passage of statutes for Native Hawaiians creates a special relationship between the federal government and Native Hawaiians, see infra Section III.E. The one article devoted to the question of the existence of a special relationship between the federal government and Indian tribes, see Houghton, supra note 19, did not address the constitutional question directly and thus did not focus on the arguments for similar treatment of Indian tribes and Native Hawaiians. It relied exclusively on a definition formerly used by the BIA that was propounded by a BIA official and Indian scholar. This Article addresses the inapplicability of that test. See infra note 156. The only other article to address squarely the level of scrutiny for programs for Native Hawaiians, see Van Dyke, supra note 19, made one of the arguments discussed in this Article: that the definition of Native Hawaiian is a "political" classification within the meaning of Mancari. See id. at 75; infra note 146. This argument is addressed in Section III.B.
149. 795 F. Supp. 1009 (D. Haw. 1990), aff'd on other grounds, No. 90-15842, 1991 WL 148771 (9th Cir. 1991). But see Hoohuli v. Ariyoshi, 631 F. Supp. 1153, 1159 n.22 (D. Haw. 1986) (noting that plaintiffs did not challenge preferences for Native Hawaiians and stating that, "if plaintiffs were Caucasions [sic] challenging appropriations to both 'Hawaiians' [defined as those descended from indigenous peoples] and 'native Hawaiians,' [defined as those with at least 50% native blood] 'strict scrutiny' might be the appropriate standard").
150. See Naliielua, 795 F. Supp. at 1012-13. The Ninth Circuit found that the plaintiff lacked standing to bring an equal protection challenge to the HHCA's preference for Native Hawaiians, and so the court simply affirmed based on standing without reaching the constitutional issue. See Naliielua, 1991 WL 148771, at *1. The Hawaii Attorney General applied similar reasoning in a 1980 legal opinion concluding that the limitation of the board of trustees of OHA to "Hawaiians" (defined as those descended from pre-1778 inhabitants) was constitutional. See 80-8 Op. Haw. Att'y Gen. 7 (1980). The Attorney General construed Mancari as according "special equal protection treatment to legislation singling out for special treatment Native Americans or aboriginal people." Id. (emphasis added). The opinion then concluded that OHA was constitutional under this standard.
151. 430 U.S. 73 (1977).
152. 437 U.S. 634 (1978).
153. See U.S. CONST. art. I, § 8, cl. 3 (giving Congress power "[t]o regulate Commerce . . . with the Indian Tribes").
154. See Naliielua, 795 F. Supp. at 1012-13; Ahuna v. Department of Hawaiian Home Lands, 640 P.2d 1161, 1168-69 (Haw. 1982).
155. "Alaska Natives" are generally treated as comprising Aleuts, Eskimos, and Indians whose ancestral residence in Alaska preceded that of Europeans. See Pence v. Kleppe, 529 F.2d 135, 138 n.5 (9th Cir. 1976); THOMAS R. BERGER, VILLAGE JOURNEY at vii-viii (1985); COHEN, supra note 41, at 401.
156. "Alaska Natives" are generally treated as comprising Aleuts, Eskimos, and Indians whose ancestral residence in Alaska preceded that of Europeans. See Pence v. Kleppe, 529 F.2d 135, 138 n.5 (9th Cir. 1976); THOMAS R. BERGER, VILLAGE JOURNEY at vii-viii (1985); COHEN, supra note 41, at 401.
157. See Alaska Pac. Fisheries v. United States, 248 U.S. 78 (1918); Native Village of Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992); Alaska Chapter, Assoc. Gen. Contractors of America v. Pierce, 694 F.2d 1162 (9th Cir. 1982); Pence, 529 F.2d at 138 n.5; Alaska v. Annette Island Packing Co., 289 F. 671 (9th Cir. 1923); Cape Fox Corp. v. United States, 4 Cl. Ct. 223 (1983); Aguilar v. United States, 474 F. Supp. 840 (D. Alaska 1979); Eric v. HUD, 464 F. Supp. 44 (D. Alaska 1978); see also Morton v. Ruiz, 415 U.S. 199, 212 (1974) (noting special status of "Indians" in Alaska, thus apparently intimating that Alaska Natives are "Indian[s]" for constitutional purposes).
158. See supra notes 24-29, 35-36 and accompanying text.
159. U.S. CONST. art. I, § 8, cl. 3. This language parallels the Clause's reference to international commerce ("Commerce with foreign nations"), id. (emphasis added), rather than interstate commerce ("Commerce . . . among the several states"), id. (emphasis added), thereby underscoring the similarity of Indian tribes to sovereign nations, rather than to racial or ethnic groupings. One other textual matter bears mention: the Indian Commerce Clause empowers Congress vis-à-vis "the Indian Tribes," and it is not obvious that the authority it confers should be construed to apply with equal force to tribal members. A dichotomy between a tribe and its members is arguably implicit in the notion of the special relationship as a government-to-government relationship. Morton v. Mancari, 417 U.S. 535 (1974), however, resolved this question for purposes of the current case law (and therefore for purposes of this Article): Mancari held that the special relationship allows the federal government to single out members of Indian tribes for benefits.
160. The Court in Mancari suggested that an additional constitutional basis of the special relationship was the Treaty Clause of Article II, U.S. CONST. art. II, § 2, cl. 2, which gives the President the authority, by and with the advice and consent of the Senate, to make treaties. The Court noted that this Clause "has often been the source of the Government's power to deal with Indian tribes." Mancari, 417 U.S. at 552; see also McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("[F]ederal authority over Indian matters . . . derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."). The Court thus classified the Treaty Clause as one involving the government's relations with Indian tribes. This makes sense, as the Clause gives the President the power to make treaties, presumably with other governments. Nothing in the Clause suggests that it also gave the President the power to make agreements with a racial group (and it should be noted that the Clause does not mention Indians). In addition to the Indian Commerce Clause, there are two other references to Indians in the Constitution: the references to "Indians not taxed" in U.S. CONST. art I, § 2, cl. 3 (apportionment shall exclude "Indians not taxed"), and U.S. CONST. amend. XIV, § 2 (same). Two professors, but not the Supreme Court, have suggested that these references are another possible source of power to deal with Indians. See Williams, supra note 42, at 830-50; Carole Goldberg-Ambrose, Not "Strictly" Racial: A Response to "Indians as Peoples", 39 UCLA L. REV. 169, 175, 189-90 (1991). Professor Goldberg-Ambrose argues: "While the Indian Commerce Clause refers to tribal groups, the 'Indians not taxed' language embraces Indians as individuals." Goldberg-Ambrose, supra, at 189. On this basis, she contends that the "Indians not taxed" language permits Congress to legislate not only for Indian tribes and their members but also for Indians defined racially. See id. at 190. This fails as a textual argument, however, because all Indians are taxed today (because all are citizens, pursuant to a 1924 statute) and all are included in the apportionment. See 8 U.S.C. § 1401 (1994) (providing that all Indians are citizens); see also 1 UNITED STATES DEP'T OF THE INTERIOR, OPINIONS OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR RELATING TO INDIAN AFFAIRS, 1917-1974, at 995-97 (1979) [hereinafter OPINIONS OF THE SOLICITOR] (Opinion of Nov. 7, 1940) (announcing that no one is excluded from apportionment, because there are no "Indians not taxed" after citizenship law); David C. Williams, Sometimes Suspect: A Response to Professor Goldberg-Ambrose, 39 UCLA L. REV. 191, 195 (1991) (writing that, as textual matter, "the 'Indians not taxed' clause cannot ground a special relationship between Congress and any Indians, because it now applies to no Indians at all"). Thus, even if one were to read the exclusion of "Indians not taxed" from apportionment as giving a textual basis for Congress's legislating outside of the strictures of the Equal Protection Clause for the Indians so described, the power is meaningless because the group so described no longer exists. Professor Williams takes an extratextual approach, arguing that "Indians not taxed" does not refer to untaxed Indians per se (who do not exist), but rather to the category that Congress intended to include in this group - tribal Indians.
161. The Court in Mancari suggested that an additional constitutional basis of the special relationship was the Treaty Clause of Article II, U.S. CONST. art. II, § 2, cl. 2, which gives the President the authority, by and with the advice and consent of the Senate, to make treaties. The Court noted that this Clause "has often been the source of the Government's power to deal with Indian tribes." Mancari, 417 U.S. at 552; see also McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("[F]ederal authority over Indian matters . . . derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."). The Court thus classified the Treaty Clause as one involving the government's relations with Indian tribes. This makes sense, as the Clause gives the President the power to make treaties, presumably with other governments. Nothing in the Clause suggests that it also gave the President the power to make agreements with a racial group (and it should be noted that the Clause does not mention Indians). In addition to the Indian Commerce Clause, there are two other references to Indians in the Constitution: the references to "Indians not taxed" in U.S. CONST. art I, § 2, cl. 3 (apportionment shall exclude "Indians not taxed"), and U.S. CONST. amend. XIV, § 2 (same). Two professors, but not the Supreme Court, have suggested that these references are another possible source of power to deal with Indians. See Williams, supra note 42, at 830-50; Carole Goldberg-Ambrose, Not "Strictly" Racial: A Response to "Indians as Peoples", 39 UCLA L. REV. 169, 175, 189-90 (1991). Professor Goldberg-Ambrose argues: "While the Indian Commerce Clause refers to tribal groups, the 'Indians not taxed' language embraces Indians as individuals." Goldberg-Ambrose, supra, at 189. On this basis, she contends that the "Indians not taxed" language permits Congress to legislate not only for Indian tribes and their members but also for Indians defined racially. See id. at 190. This fails as a textual argument, however, because all Indians are taxed today (because all are citizens, pursuant to a 1924 statute) and all are included in the apportionment. See 8 U.S.C. § 1401 (1994) (providing that all Indians are citizens); see also 1 UNITED STATES DEP'T OF THE INTERIOR, OPINIONS OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR RELATING TO INDIAN AFFAIRS, 1917-1974, at 995-97 (1979) [hereinafter OPINIONS OF THE SOLICITOR] (Opinion of Nov. 7, 1940) (announcing that no one is excluded from apportionment, because there are no "Indians not taxed" after citizenship law); David C. Williams, Sometimes Suspect: A Response to Professor Goldberg-Ambrose, 39 UCLA L. REV. 191, 195 (1991) (writing that, as textual matter, "the 'Indians not taxed' clause cannot ground a special relationship between Congress and any Indians, because it now applies to no Indians at all"). Thus, even if one were to read the exclusion of "Indians not taxed" from apportionment as giving a textual basis for Congress's legislating outside of the strictures of the Equal Protection Clause for the Indians so described, the power is meaningless because the group so described no longer exists. Professor Williams takes an extratextual approach, arguing that "Indians not taxed" does not refer to untaxed Indians per se (who do not exist), but rather to the category that Congress intended to include in this group - tribal Indians.
162. The Court in Mancari suggested that an additional constitutional basis of the special relationship was the Treaty Clause of Article II, U.S. CONST. art. II, § 2, cl. 2, which gives the President the authority, by and with the advice and consent of the Senate, to make treaties. The Court noted that this Clause "has often been the source of the Government's power to deal with Indian tribes." Mancari, 417 U.S. at 552; see also McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("[F]ederal authority over Indian matters . . . derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."). The Court thus classified the Treaty Clause as one involving the government's relations with Indian tribes. This makes sense, as the Clause gives the President the power to make treaties, presumably with other governments. Nothing in the Clause suggests that it also gave the President the power to make agreements with a racial group (and it should be noted that the Clause does not mention Indians). In addition to the Indian Commerce Clause, there are two other references to Indians in the Constitution: the references to "Indians not taxed" in U.S. CONST. art I, § 2, cl. 3 (apportionment shall exclude "Indians not taxed"), and U.S. CONST. amend. XIV, § 2 (same). Two professors, but not the Supreme Court, have suggested that these references are another possible source of power to deal with Indians. See Williams, supra note 42, at 830-50; Carole Goldberg-Ambrose, Not "Strictly" Racial: A Response to "Indians as Peoples", 39 UCLA L. REV. 169, 175, 189-90 (1991). Professor Goldberg-Ambrose argues: "While the Indian Commerce Clause refers to tribal groups, the 'Indians not taxed' language embraces Indians as individuals." Goldberg-Ambrose, supra, at 189. On this basis, she contends that the "Indians not taxed" language permits Congress to legislate not only for Indian tribes and their members but also for Indians defined racially. See id. at 190. This fails as a textual argument, however, because all Indians are taxed today (because all are citizens, pursuant to a 1924 statute) and all are included in the apportionment. See 8 U.S.C. § 1401 (1994) (providing that all Indians are citizens); see also 1 UNITED STATES DEP'T OF THE INTERIOR, OPINIONS OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR RELATING TO INDIAN AFFAIRS, 1917-1974, at 995-97 (1979) [hereinafter OPINIONS OF THE SOLICITOR] (Opinion of Nov. 7, 1940) (announcing that no one is excluded from apportionment, because there are no "Indians not taxed" after citizenship law); David C. Williams, Sometimes Suspect: A Response to Professor Goldberg-Ambrose, 39 UCLA L. REV. 191, 195 (1991) (writing that, as textual matter, "the 'Indians not taxed' clause cannot ground a special relationship between Congress and any Indians, because it now applies to no Indians at all"). Thus, even if one were to read the exclusion of "Indians not taxed" from apportionment as giving a textual basis for Congress's legislating outside of the strictures of the Equal Protection Clause for the Indians so described, the power is meaningless because the group so described no longer exists. Professor Williams takes an extratextual approach, arguing that "Indians not taxed" does not refer to untaxed Indians per se (who do not exist), but rather to the category that Congress intended to include in this group - tribal Indians.
163. See Williams, supra note 42, at 832-41 (presenting historical evidence that "Indians not taxed" was intended to refer to tribal Indians). This construction of "Indians not taxed" would not expand the scope of the special relationship to all Indians - the interpretation would cover only tribes that "retain[] enough sovereignty to control the texture of daily life on the reservation," id. at 831 - but instead would serve as an alternate grounding for the special relationship with tribal entities. See id. at 776-86 (rejecting Indian Commerce Clause as possible ground for rational basis review of statutes treating members of Indian tribes specially and noting need for an alternative basis for special relationship). This reading, then, also does not appear to provide a basis for extending the special relationship to all Indians. I will not discuss these arguments at length, because the point of this Article is to examine the status of Native Hawaiians under the prevailing jurisprudence, and the Supreme Court has never suggested that the Constitution's references to "Indians not taxed" are relevant, much less a foundation for the special relationship. See Squire v. Capoeman, 351 U.S. 1, 6 (1956); see also Duro v. Reina, 495 U.S. 676, 692 (1990) ("That Indians are citizens does not alter the Federal Government's broad authority to legislate with respect to enrolled Indians as a class, whether to impose burdens or benefits.").
164. The Court has been willing to construe the Indian Commerce Clause expansively - after all, in the many cases since McClanahan emphasized the Clause, the Court has never found, or even suggested, that the Clause might not support a given federal government action with respect to Indian tribes - and it may be willing to construe the term "Tribe[]" more broadly than the Executive Branch has, see infra notes 157-67 and accompanying text, but it has never intimated that it would read the word "Tribes" out of the Indian Commerce Clause. The Court's treatment of the Interstate Commerce Clause (which is, of course, part of the same sentence in the Constitution) is perhaps instructive. As expansively as the Court has interpreted "Commerce . . . among the several states," it has always tied the regulated actions to some aspect of interstate commerce, see Perez v. United States, 402 U.S. 146 (1971); Wickard v. Filburn, 317 U.S. 111 (1942). And the Court's recent invalidation of the Gun-Free School Zones Act in United States v. Lopez, 115 S. Ct. 1624 (1995), underscored the Court's unwillingness to construe the Clause as if no interstate nexus were required. The Court's treatment of the Interstate Commerce Clause thus may suggest, albeit inferentially, that the Court may construe the word "Tribe[]" broadly, but would not ignore it altogether.
165. Mancari, 417 U.S. at 551 (emphasis added).
166. Id. at 553 n.24 (emphasis added).
167. Id. at 552 (quoting Board of County Comm'rs v. Seber, 318 U.S. 705, 715 (1943)).
168. See supra text accompanying note 118.
169. In addition, construing Mancari as recognizing a special relationship with all Native Americans would render inexplicable the opinion's avoidance of the relevant statutory language in favor of the BIA regulation that applied to the statute. See id. at 553 n.24; supra note 38. The obvious explanation for the Court's strange move - relying on the BIA regulation and failing to mention, much less quote, the statutory language - is that the statute (the IRA, 25 U.S.C. § 479 (1994)) gave benefits to members of federally recognized tribes and "all other persons of one-half or more Indian blood," whereas the BIA regulation limited the preference to members of federally recognized tribes; thus, relying on the regulation allowed the Court to construe the preference as limited to members of Indian tribes. If the Court did not so intend to limit the special relationship, it is difficult to fathom why it treated the statute in the way that it did.
170. 430 U.S. 73 (1977).
171. 437 U.S. 634 (1978).
172. 430 U.S. at 82 n.14. The Court's silence is particularly remarkable in light of Justice Blackmun's concurrence and Justice Stevens's dissent, both of which noted that the benefit was not limited to tribal members. See id. at 90 (Blackmun, J., concurring in part and in the result) (stating that Court's suggestion of tribe/nontribe distinction "is undermined by the fact that Absentee Delawares who are not members of that tribe nevertheless are entitled to participate"); id. at 94 (Stevens, J., dissenting) (rejecting Court's reliance on Mancari because "some of those who would share in the distribution on behalf of the Absentee Delawares are not members of that tribe"). It is unsurprising that Justice Blackmun, who wrote the Court's opinion in Mancari, would have emphasized tribal membership. It is worth noting, however, that Blackmun (along with Chief Justice Burger) concurred in the result, because [t]here necessarily is a large measure of arbitrariness in distributing an award for a century-old wrong. One could regard the distribution as a windfall for whichever beneficiaries are now favored. In light of the difficulty in determining appropriate standards for the selection of those who are to receive the benefits, I cannot say that the distribution directed by the Congress is unreasonable and constitutionally impermissible. Id. at 91 (Blackmun, J., concurring in part and in the result).
173. 437 U.S. at 650 (bracketing in original) (quoting IRA, 25 U.S.C. § 479 (1976)). This is somewhat ironic, as the same statute (the IRA), and thus the same definition of "Indian," was at issue in Mancari (which was decided four years earlier), and in that case the Court construed the IRA, pursuant to the relevant regulations, as applying only to Indian tribes. See Mancari, 417 U.S. at 553 n.24.
174. Moreover, even assuming that the Court had cast doubt on the tribe/nontribe distinction, it is not at all clear that the Court would replace that distinction with a Native/non-Native American dichotomy, whereby it would apply Mancari to benefits for Native Americans and Adarand to benefits for other minority groups. The argument for such a change, after all, would depend on the contestable assertion that the destruction of Native Americans' sovereign authority over their land (and the government's involvement in it) was so different from the deprivations suffered by other racial minorities that a completely different level of scrutiny would apply to programs benefiting Native Americans. Cf. Williams, supra note 42, at 817-18 ("The historical dispossession argument still does not adequately distinguish Indians from other racial groups, particularly African-Americans."); Johnson & Crystal, supra note 40, at 589 n.19 (comparing American Indians with African Americans). One could argue, of course, that both Native Americans and African Americans are entitled to special treatment, and that programs benefiting them should be subject only to rational basis review. Such an argument, however, depends on the overruling of Adarand and Croson, and the purpose of this Article is to address the current status of Native Hawaiians and the possibilities of changing that status in light of current constitutional doctrines.
175. Delaware Tribal Bus. Comm., 430 U.S. at 85.
176. This appears to have been Justice Blackmun's position. See id. at 90 (Blackmun, J., concurring).
177. See Brief for the Absentee Delaware Tribe Business Committee at 52, Absentee Delaware Tribe of Oklahoma Bus. Comm. v. Weeks, 430 U.S. 73 (1977) (No. 75-1335); Weeks v. United States, 406 F. Supp. 1309, 1339 n.40 (W.D. Okla. 1975).
178. United States v. Antelope, 430 U.S. 641, 646 (1977) (quoting Mancari, 417 U.S. at 553 n.24). In that case, criminal defendants contended that their right to equal protection had been violated because they had been subject to a harsher, federal sentence based on their status as Indians. The Court, in rejecting this argument, emphasized - and relied on - the special status of tribes, as distinguished from American Indians as an ethnic group. The Court began by stating that "federal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications." Id. at 645. Then, after quoting both Mancari and Fisher v. District Court, 424 U.S. 382 (1976), at length, the Court stated that federal regulation of Indian affairs "is rooted in the unique status of Indians as 'a separate people' with their own political institutions. . . . Indeed respondents were not subjected to federal criminal jurisdiction because they are of the Indian race but because they are enrolled members of the Coeur d'Alene Tribe." Antelope, 430 U.S. at 646. Interestingly, the statute at issue in Antelope was not explicitly limited to tribal members. In a footnote immediately after the passage quoted above, the Court noted the breadth of the definition but reserved judgment on the equal protection issues it raised, relying instead on the defendants' status as tribal members: It should be noted, however, that enrollment in an official tribe has not been held to be an absolute requirement for federal jurisdiction, at least where the Indian defendant lived on the reservation and "maintained tribal relations with the Indians thereon." Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938); see also United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974) (dicta). Since respondents are enrolled tribal members, we are not called on to decide whether nonenrolled Indians are subject to 18 U.S.C. § 1153, and we therefore intimate no views on the matter. Id. at 647 n.7. The broadening of the special relationship (at least as to federal jurisdiction) to which the Court referred, then, was only to Indians who live on a reservation and "maintain tribal relations." This clearly would not encompass a further expansion to Indians who are not connected to a tribe or tribal reservation. And, of course, the Court did not even endorse this slight extension of the special relationship, as the Court noted that the relevant parties were enrolled tribal members. Moreover, the first paragraph of the footnote emphasized that federal jurisdiction "does not apply to 'many individuals who are racially to be classified as "Indians."'" Id. (quoting Mancari, 417 U.S. at 553 n.24).
179. Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 501 (1979). The full quotation is particularly revealing: "It is settled that 'the unique legal status of Indian tribes under federal law' permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive." Id. at 500-01 (emphases added) (quoting Mancari, 417 U.S. at 551). The Supreme Court applied similar reasoning in Fisher. There, the Court held that denying access to state courts and forcing litigants to tribal court did not constitute impermissible racial discrimination because "[t]he exclusive jurisdiction of the Tribal Court does not derive from the race of the plaintiff but rather from the quasi-sovereign status of the Northern Cheyenne Tribe under federal law." 424 U.S. at 390. Also relevant is United States v. Mazurie, 419 U.S. 544 (1975). In that case, the Court upheld the delegation of authority to tribes to regulate alcohol, because tribes were different from other groups of people: "Indian tribes are unique aggregations possessing attributes of sovereignty both over their members and their territory, Worcester v. Georgia, [31 U.S.] 6 Pet. 515, 557 (1832); they are 'a separate people' possessing 'the power of regulating their internal and social relations . . . .'" Id. at 557 (quoting United States v. Kagama, 118 U.S. 375, 381-82 (1886)). The Court then stated that "[c]ases such as Worcester and Kagama surely establish the proposition that Indian tribes within 'Indian country' are a good deal more than 'private, voluntary organizations.'" Id. (citations omitted in original). The Court also emphasized the special status of tribes (and quoted this language from Mazurie) in United States v. Wheeler, 435 U.S. 313, 322-23 (1978). Finally, the Court's only statement on this issue since 1980 invokes the importance of membership in a tribe; in Duro v. Reina, 495 U.S. 676 (1990), the Court rejected an argument based on American Indians' U.S. citizenship, stating: "That Indians are citizens does not alter the Federal Government's broad authority to legislate with respect to enrolled Indians as a class, whether to impose burdens or benefits." Id. at 692 (emphasis added).
180. 115 S. Ct. 2097 (1995).
181. 488 U.S. 469 (1989).
182. Yakima Nation, 439 U.S. 463, was the last Supreme Court case that squarely addressed this issue. See supra note 44.
183. It bears mentioning that Justice Stevens's dissent in Adarand seems to suggest that, under the majority's view, strict scrutiny applies to classifications of Native Americans. In criticizing the Court's view of "consistency," Justice Stevens stated that the Court "should reject a concept of 'consistency' that would view the special preferences that the National Government has provided to Native Americans since 1834 as comparable to the official discrimination against African Americans that was prevalent for much of our history." Adarand, 115 S. Ct. at 2121 (Stevens, J., dissenting) (footnote omitted). The point of this criticism presumably is that the Court's concept of consistency did equate the two.
184. Id. at 2102 (emphasis added) (quoting Small Business Act, 15 U.S.C. §§ 637(d)(2)-(3) (1994)).
185. Croson, 488 U.S. at 478 (quoting RICHMOND, VA., CODE § 12-23 (1985)) (emphasis added).
186. 448 U.S. 448 (1980).
187. Id. at 454 (quoting Public Works Employment Act of 1977, 42 U.S.C. § 6705(f)(2) (Supp. II 1976)) (emphasis added).
188. 497 U.S. 547 (1990).
189. Id. at 553 n.1 (emphasis added) (quoting Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 980 n.8 (1978)).
190. Croson, 488 U.S. at 506. Indeed, in the same paragraph the Court made an additional statement that appears to treat the Native American groups as subject to strict scrutiny: The Court stated that "[t]here is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the Richmond construction industry." Id. (second emphasis added). The emphasis on past discrimination is significant, because such discrimination (as the Court had just finished explaining) is crucial in meeting the requirements of strict scrutiny, but, of course, totally unnecessary in the rational basis context. If the Court had considered preferences for Native Americans to be subject to rational basis review (just like, say, preferences for optometrists, as in Williamson v. Lee Optical. Inc., 348 U.S. 483 (1955)), then presumably it would not have mentioned them in focusing on the absence of past discrimination (just as it would not have with respect to a classification of optometrists). Concededly, it could be argued that the Court mentioned these other groups (i.e., "Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons") in an effort to show that the provision was not narrowly tailored, and that there was no suggestion that the groups were racial. The paragraph following the one quoted above, which focuses on the absence of narrow tailoring, provides some support for this hypothesis. There are two problems with this reading, however. The first is the aforementioned reference to the other groups as "racial groups." The second is the fact that the quoted paragraph appears immediately after one concluding that the city of Richmond had failed to demonstrate a compelling interest for its preference for African Americans because it could not point to any identified past discrimination. In the quoted paragraph, the Court then turned to the classification of the other groups. The placement of the quoted statement about past discrimination and the other groups, then, suggests (albeit obliquely) that the Court was similarly subjecting these other classifications to the compelling interest analysis of strict scrutiny. It might be contended that the Court was simply rejecting Richmond's inclusion of Native Americans (because Richmond had no history of discrimination against them) without casting any doubt on the federal government's (or state governments') ability to benefit Native Americans based on discrimination that occurred outside of the Richmond construction industry. The upshot of Mancari, though, is that classifications of Indian tribes are subject to rational basis review (like benefits for optometrists), so a history of discrimination is unnecessary (and generally irrelevant). It might also be argued that the Court was suggesting that the inclusion of Native Americans could not survive any level of review (including rational basis), so that there is no reason to believe that strict scrutiny applies. The point of the discussion in Croson, however, was that strict scrutiny had not been met, and nothing in the opinion indicates that the Court was also stating that the inclusion of Native Americans would not survive rational basis review. One final alternative bears mention: The above passages from Croson might be construed as indicating merely that there is no special relationship between Native Americans and state or local governments, and holding open the question whether there is a special relationship between Native Americans and the federal government; such a distinction between federal and state authority flows from Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979). See infra note 217. If that had been the Court's point, though, it likely would have cited Yakima Nation or otherwise given some indication that its skeptical view of benefits for Native Americans applied only to state preferences, and not to federal programs. As it was, the Court's reference to Native Americans does not intimate that the subtleties of Yakima Nation were relevant. Thus, although it is possible that the Court assumed that there was a special relationship between the federal government and Native Americans but none with the states, and that it saw no need to articulate this assumption, the more obvious conclusion is simply that the Court believed that the classifications of Native Americans were racial classifications subject to strict scrutiny.
191. HHCA § 201(a)(7); see supra notes 65, 96-97 and accompanying text.
192. Interestingly, though the BIA regulation upon which Mancari relied required both membership in a federally recognized Indian tribe and "one-fourth or more degree Indian blood," see supra note 38, the Court's emphasis was on tribal membership, and it is not clear that the Court considered the blood-quantum requirement to be necessary. If the Court truly were to treat all members of recognized Indian tribes as subject to the special relationship, then a tribe that did not require ancestry would also be subject to the special relationship and thus it might not be fair to characterize the special relationship as involving race plus tribal status; the relationship could simply depend on tribal status, with no ethnic requirement. If so, this would further distinguish tribal classifications from the existing classifications of Native Hawaiians, which obviously do turn on ancestry. This argument is speculative, however, because in neither Mancari nor its progeny did the Court address the application of the special relationship to someone who was not of Indian ancestry. But cf. Montoya v. United States, 180 U.S. 261, 266 (1901) ("By a 'tribe' we understand a body of Indians of the same or similar race . . . ."); United States v. Rogers, 45 U.S. (4 How.) 567 (1846) (holding that white person could not be treated as member of Indian tribe). Some commentators have argued that Rogers and federal government policies focusing on blood quantum have effectively racialized membership of Indian tribes. See, e.g., Ball, supra note 28, at 17 ("The United States has imposed upon Indians its own, alien, definitions of 'tribe,' and it has made race a dominant factor in determining tribal membership."); M. Annette Jaimes, Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in North America, 16 POL'Y STUD. J. 778 (1988); cf. James Axtell, The White Indians of Colonial America, 32 WM. & MARY Q. 55 (discussing some Indian tribes' assimilation of Westerners in colonial times). If so, then the federal government's racializing policies not only trampled upon tribal sovereignty and integrity but also may have weakened the argument in defense of the constitutionality of benefits to tribal members by effectively limiting tribal membership to those who were racially "Indian." Cf. infra note 145. This point arguably adds equitable force to the Court's conclusion in Mancari; that decision's emphasis on the political status of tribes can be seen as downplaying the very racial element that the government helped to create. For a discussion of a somewhat analogous equitable argument involving the federal government's historical treatment of Native Hawaiians, see infra notes 194-200 and accompanying text.
193. Professor David Williams has strongly criticized Mancari's suggestion that the addition of a political classification (tribal membership) to a racial classification (being an American Indian) renders the entire classification political, and not racial. See Williams, supra note 42, at 798-807. Williams contends that the definition at issue in Mancari is racial, just like other categories defined both by race and a nonsuspect classification, such as left-handed African Americans or Latino government employees. See id. at 807. Williams does not actually contend that Mancari should be overruled, however, and, more importantly, the Supreme Court has not done so; for purposes of the current constitutional status of Native Hawaiians, Mancari's reasoning still provides the framework.
194. This, in fact, was the argument put forward by Professor Jon Van Dyke (who has served as counsel to OHA) in defense of the constitutionality of OHA. See Van Dyke, supra note 19. Professor Van Dyke noted the political/racial distinction but argued that the definition of Native Hawaiian was political: [T]he United States does not grant any special privileges to or have a trust relationship with Canadian, Mexican, or Guatemalan Indians residing in the United States, even though they are members of the same "race" as American Indians. Similarly, the preference involved in OHA does not extend to native Hawaiians not residing in Hawaii, nor does it apply to other Polynesians in Hawaii, such as Tongans and Samoans, who are members of the same "race" as Hawaiians but who do not fit the "political" classification of being descendants of persons who resided here prior to 1778. The preferences granted to persons native to areas that now constitute the United States are therefore, political in the sense that they arise out of a specific set of political and historical relationships and are not an attempt to elevate one race over another solely for racial reasons. Id. at 75-76 (footnotes omitted). Holding aside the questionable characterization of an ancestry-based limitation as political, Van Dyke's analogy fails because, under Mancari, not only are Canadian Indians outside the special relationship, but so too are American Indians who are not members of tribes.
195. Mancari, 417 U.S. at 554; see also id. at 553 & n.24.
196. See supra notes 121, 130-31 and accompanying text.
197. See Oyama v. California, 332 U.S. 633, 646 (1948); Hernandez v. Texas, 347 U.S. 475, 479 (1954); see also Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 n.5 (1987).
198. The Court reached a similar conclusion in Hoohuli v. Ariyoshi, 631 F. Supp. 1153 (D. Haw. 1986). In that case, "native Hawaiians" (that is, those with 50% or more native blood) challenged the inclusion of "Hawaiians" (those with any native blood) in the statute creating the Office of Hawaiian Affairs. See id. at 1154-56; see also HAW. CONST. art. XII, § 6 (providing that OHA shall exercise its authority to benefit "native Hawaiians and Hawaiians"); HAW. REV. STAT. ANN. § 10-2 (Michie 1995) (defining "native Hawaiian" and "Hawaiian" for purposes of OHA). As the district court repeatedly noted, neither party challenged the constitutionality of OHA or of preferences for Native Hawaiians per se; rather, their dispute was whether the benefits should be given only to "native Hawaiians" or could also include "Hawaiians." See Hoohuli, 631 F. Supp. at 1159. The plaintiffs argued that the definition of "Hawaiian" was racial, but that the definition of "native Hawaiian" was not. The court noted that, in furtherance of this argument, the plaintiffs asserted that although the definition of "native Hawaiian" also [i.e., like the definition of "Hawaiian"] used the term "races," it was not subject to strict scrutiny because it was in fact based on aboriginal lineage and not race. This court finds that if there is a distinction, it is without a difference. Id. at 1159 n.23.
199. HHCA § 201(a)(7). The definition of "Native Hawaiian," then, would stand on no different footing than one that applied to African Americans, but only those descended from slaves; or one that applied to only those Chinese who descended from people who arrived as underpaid laborers. In such a circumstance, it seems highly unlikely that a court would find that the addition of a nonracial criterion to an explicitly racial definition would thereby cure the definition of its racial character and render the entire classification nonsuspect for equal protection purposes. The limitation might help to demonstrate that the group was neither under-nor overinclusive and that the legislation, therefore, was narrowly tailored; but that would apply, of course, only after a court had determined the appropriate level of scrutiny and was applying that scrutiny to the legislation. Many of the classic cases of suspect classifications have involved definitions that could be construed as having political elements as well (e.g., African Americans who certified that they suffered economic disadvantages in Adarand), and yet the Supreme Court had no difficulty concluding that, in light of the limitation to members of a particular race, further limitations within that race did not render the classification nonsuspect. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2103 (1995); see also id. at 2121 n.3 (Stevens, J., dissenting) (noting that government had - unsuccessfully - altempted to avoid strict scrutiny in Adarand by relying on fact that not all members of preferred minority groups were eligible for statutory preference); Korematsu v. United States, 323 U.S. 214 (1944) (treating classification of persons of Japanese descent who resided on West Coast as racial); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding "political" redefinition of municipal boundaries with clear racial intent is not immune from judicial review). Admittedly, there is one significant Supreme Court case (other than Mancari) in which the Court has found that a suspect classification could be rendered nonsuspect by the addition of a nonpolitical criterion: Geduldig v. Aiello, 417 U.S. 484 (1974). In that case (which was, perhaps not coincidentally, decided the same day as Mancari), the Court found that pregnancy discrimination is not gender discrimination because "[t]he program divides potential recipients into two groups - pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes." Id. at 496-97 n.20. Many commentators have severely criticized the suggestion that the classification was not suspect. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-29. at 1578 (2d ed. 1988) (Geduldig's reasoning "approach[es] the farcical"); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 983 (1984) ("Criticizing Geduldig has since become a cottage industry."); see also Newton, supra note 28, at 285 (comparing Mancari and Geduldig and criticizing both cases: "The premise of Mancari's tribal status argument (as well as the premise of Geduldig's pregnancy status argument) is faulty and should not stand unchallenged."). More importantly, the Court has never applied in any other situation Geduldig's, suggestion that a suspect classification could be rendered nonsuspect by the addition of a separate, nonsuspect criterion. This, combined with the Court's vigilance in treating statutes that contain a racial element as suspect - even if other elements also are present - indicates that the Court would apply strict scrutiny to a racial classification that also had nonsuspect criteria attached.
200. HHCA § 201(a)(7). The definition of "Native Hawaiian," then, would stand on no different footing than one that applied to African Americans, but only those descended from slaves; or one that applied to only those Chinese who descended from people who arrived as underpaid laborers. In such a circumstance, it seems highly unlikely that a court would find that the addition of a nonracial criterion to an explicitly racial definition would thereby cure the definition of its racial character and render the entire classification nonsuspect for equal protection purposes. The limitation might help to demonstrate that the group was neither under-nor overinclusive and that the legislation, therefore, was narrowly tailored; but that would apply, of course, only after a court had determined the appropriate level of scrutiny and was applying that scrutiny to the legislation. Many of the classic cases of suspect classifications have involved definitions that could be construed as having political elements as well (e.g., African Americans who certified that they suffered economic disadvantages in Adarand), and yet the Supreme Court had no difficulty concluding that, in light of the limitation to members of a
201. The question whether a group is an "Indian Tribe[]" for constitutional purposes (irrespective of whether it has been formally recognized by the federal government) is sometimes described as an inquiry as to whether a group is an ethnological or legal tribe (as opposed to a recognized one). See, e.g., Eric Smith & Mary Kancewick, The Tribal Status of Alaska Natives, 61 U. COLO. L. REV. 455, 471-82 (1990); L.R. Weatherhead, What is an "Indian Tribe"? - The Question of Tribal Existence, 8 AM. INDIAN L. REV. 1, 8-9 (1980).
202. The question whether a group is an "Indian Tribe[]" for constitutional purposes (irrespective of whether it has been formally recognized by the federal government) is sometimes described as an inquiry as to whether a group is an ethnological or legal tribe (as opposed to a recognized one). See, e.g., Eric Smith & Mary Kancewick, The Tribal Status of Alaska Natives, 61 U. COLO. L. REV. 455, 471-82 (1990); L.R. Weatherhead, What is an "Indian Tribe"? - The Question of Tribal Existence, 8 AM. INDIAN L. REV. 1, 8-9 (1980).
203. See supra notes 96-97.
204. One seeming counterargument to this point is that the definition of Native Hawaiian is no more incompatible with Native Hawaiians constituting a tribe or tribes than a statute simply benefiting "the Navajo" would be; the statute benefiting "the Navajo" would be interpreted as applying only to members of the Navajo tribe, just as statutes benefiting Native Hawaiians would be limited to members of the Native Hawaiian tribe or tribes. The problem with this argument is that the programs for Native Hawaiians do not refer simply to "Native Hawaiians," without more: They define "Native Hawaiians" as the descendants of the races who occupied Hawaii before 1778. See supra notes 96-97. Thus the definitions are not analogous to one referring to "the Navajo." Moreover, a truly analogous statute for the Navajo would appear to be a racial, not a political, classification under Mancari. If our hypothetical statute defined "the Navajo" as "the descendants of the members of the Navajo tribe before their contact with Westerners," it would be difficult to characterize it as a political classification. Some members of the benefited class might not have any connection to the current Navajo nation. The only required commonality would be in their ancestry. It might seem possible to avoid the conclusion that this would be a racial classification by arguing that a tribal entity could define its members as all descendants of the original members and no one else, and could refuse to recognize renunciations. Under these circumstances, the category of all descendants would be coterminous with the membership of the tribe, arguably rendering the definition political. The hypothetical "tribe" so defined, however, would not be a political entity at all, so it is hard to understand how it could be fairly characterized as a political classification. As was noted above, the basis of Mancari's, distinction between racial and tribal classifications was that the latter were grounded in tribes' semi-sovereign status and their existence as cognizable entities. See supra notes 38-42, 117-18 and accompanying text. If a tribe were defined to include all Indians of a certain lineage, without any suggestion of any other connection, it would presumably run afoul of this distinction.
205. It bears mentioning that a potential difficulty arises from the fact that statutes for Native Hawaiians utilize two different definitions of Native Hawaiians: Some apply to all descendants of pre-1778 inhabitants, and others are limited to those with 50% or more native blood. This raises a possible problem for the argument that Native Hawaiians currently constitute a tribe, because it means that either the former set of statutes are overinclusive or the latter set are underinclusive. That is, if the Native Hawaiian tribe includes only those with 50% or more Native blood, then programs (like OHA) that benefit all descendants (not merely those with a 50% blood quantum) would still be racial, rather than political, because they would not be limited to members of the tribe; and, if the Native Hawaiian tribe includes all descendants, the programs limited to those with 50% or more native blood (like the HHCA) would have grafted a racial classification onto the political classification of membership in a tribe. In such a case, the addition of the 50% threshold would undercut the political argument based on tribal status. The existence (and seriousness) of this problem is not clear, however, for a simple reason: Though the logic of Mancari would seem to suggest that assisting only the segment of a tribe with a particular blood quantum would constitute treating that segment as a racial group, not as a tribal (or political) one, the regulation upon which the Court relied gave a hiring preference only to those people who were members of federally recognized Indian tribes and had 25% Indian blood. See Morton v. Mancari, 417 U.S. 535, 553 n.24 (1974). The Court in Mancari ignored the second part of this requirement, and it has never directly addressed the constitutionality of a blood quantum minimum in addition to a requirement of membership in a federally recognized tribe. Mancari's silence may suggest, however, that it concluded that the addition of a blood quantum requirement does not raise constitutional concerns.
206. It should be noted that the one other article that directly focused on the question of the tribal status of Native Hawaiians reached a different conclusion. See Houghton, supra note 19. In that piece, the author, after noting that "Congress may not apply its powers over Indians to a particular group or community by arbitrarily calling them a tribe," applied five "considerations" from Felix Cohen's Handbook of Federal Indian Law in arguing that Native Hawaiians were entitled to tribal status: "(1) whether the group has had treaty relations with the United States; (2) whether the group has been denominated a tribe by act of Congress or Executive order; (3) whether the group has been treated as having collective rights in tribal lands or funds, even though not expressly denominated a tribe; (4) whether the group has been treated as a tribe or band by other Indian tribes; and (5) whether the group has exercised political authority over its members, through a tribal council or other governmental forms." Houghton, supra note 19, at 13-14 (quoting COHEN, supra note 41, at 271). Houghton's analysis suffers from several flaws, however (in addition to the more general problems with this line of argument discussed in the text). First, Cohen's book did not suggest that this list of five considerations determined whether a group was a tribe or not for constitutional purposes. Rather, it merely noted that the BIA and the Department of the Interior had utilized these criteria, among others, in determining whether or not a given group was a "tribe" for purposes of the IRA, 25 U.S.C. § 476 (1994). See COHEN, supra note 41, at 270-71. Cohen's five criteria are particularly inapposite in light of newer BIA regulations - which include many more than the five criteria - that supersede the considerations listed in Cohen's book. See infra notes 158-60 and accompanying text. Second, Native Hawaiians do not appear to meet these five criteria. The fifth requirement is that the group "has exercised political authority over its members." Apparently, this is not merely a requirement that the group exercised such authority in the past, but also that it continue to do so (because otherwise the criteria would include former tribes). Cohen himself indicated as much in his opinions for the Department of Interior on recognition of tribal groups. For instance, a 1938 opinion rejected the Oklahoma Miami and Peoria Indians' application for tribal status, stating: It is not enough that the ethnographic history of the two groups shows them in the past to have been distinct and well-recognized tribes or bands. A particular tribe or band may well pass out of existence as such in the course of time. . . . There must be a currently existing group distinct and functioning as a group . . . . 1 OPINIONS OF THE SOLICITOR, supra note 115, at 864 (Opinion of Dec. 13, 1938); see also id. at 725 (Opinion of Feb. 8, 1937) ("While the St. Croix Indians . . . might have been recognized as a separate band at the time of the 1854 treaty, they now present no characteristics entitling them to recognition as a band, particularly as there exists no form of band organization."). The problem, as will be discussed below, is that there is no Native Hawaiian entity that serves this function. See infra notes 168-73 and accompanying text.
207. Some commentators have suggested that such a question is problematic, both because indigenous groups should define themselves (rather than having a definition imposed from the outside by others) and because the organizational arrangements of indigenous peoples are too multifarious to admit of a single, useful definition. See Gerald Torres & Kathryn Milun, Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case, 1990 DUKE L.J. 625, 655-59 (discussing importance of self-definition); Weatherhead, supra note 152, at 5-6 (discussing multiplicity of socio-political arrangements). The problem here is that the Indian Commerce Clause of the Constitution refers to "Indian Tribes," and the Court has treated that provision as empowering Congress to take action with respect to "Indian Tribes" that, if taken for a racial or ethnic group, would be unconstitutional. Under these circumstances, the courts and Congress will need to utilize some definition of "Indian Tribes," as that term is used in the Indian Commerce Clause, to determine whether a given law violates equal protection. Whether that definition allows for one or many kinds of tribes, and whether it is proposed by indigenous groups themselves or by the federal government, the definition itself must exist in order to allow for the assessment of programs under present case law (specifically, Mancari and Adarand).
208. See 25 C.F.R. § 83 (1996).
209. Id. §§ 83.7(b)-(c). These criteria do not, by their terms, apply to Native Hawaiians, because their application is limited to "American Indian groups indigenous to the continental United States." Id. § 83.3(a).
210. It is worth noting, though, that the Ninth Circuit, in determining whether a Native Hawaiian group was an "Indian tribe or band with a governing body duly recognized by the Secretary of the Interior," 28 U.S.C. § 1362 (1994), applied the criteria from the BIA regulations. See Price v. Hawaii, 764 F.2d 623, 627 (9th Cir. 1985). Similarly, the Second Circuit decided to defer to the BIA's ongoing recognition process, rather than attempt to determine on its own whether a putative tribe should be treated as an Indian tribe. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 60 (2d Cir. 1994) ("[T]he creation in 1978 of the acknowledgment process currently set forth in 25 C.F.R. Part 83 - a comprehensive set of regulations, the BIA's experience and expertise in implementing these regulations, and the flexibility of the procedures weigh heavily in favor of a court's giving deference to the BIA.").
211. 180 U.S. 261, 266 (1901).
212. See, e.g., Smith & Kancewick, supra note 152, at 473-74 ("[I]n Montoya the Supreme Court established a practical legal definition for the ethnological 'tribe' . . . . Thus, insofar as federal Indian law is concerned, the existence of an historical - an ethnological - tribe should be determined by reference to the Montoya definition."); see also infra notes 166-68 (citing cases and articles that rely on Montoya). The main pre-Montoya case on the criteria for status as a tribe was United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876), which adopted a similar definition. See infra note 165.
213. Montoya, 180 U.S. at 266; see also Forty-Three Gallons of Whiskey, 93 U.S. at 195 ("As long as [the Red Lake and Pembina Chippewa] Indians remain a distinct people, with an existing tribal organization, recognized by the political department of the government, Congress has the power to say with whom, and on what terms, they shall deal . . . .").
214. The relevant language (which was part of the Indian Depredation Act) referred to property "taken or destroyed by Indians belonging to any band, tribe or nation in amity with the United States." Montoya, 180 U.S. at 264 (quoting Indian Depredation Act, ch. 538, 26 Stat. 851 (1891)). The Court first defined "nation," "tribe," and "band" and then determined whether the group in question was "in amity with the United States." Id. at 265-70.
215. Moreover, the Court in Forty-Three Gallons of Whiskey did address the issue of Congress's constitutional power to deal with Indian tribes, and it treated "an existing tribal organization, recognized by the political department of the government" as a requirement. 93 U.S. at 195.
216. See, e.g., United States v. Candelaria, 271 U.S. 432, 442 (1926) (adopting Montoya's language as the definition to the term "any tribe of Indians" in the Indian Nonintercourse Act); United States v. Chavez, 290 U.S. 357, 364 (1933) (using Montoya's language in defining "Indian country").
217. For instance, in the leading case involving an American Indian group seeking to be treated as a tribe, the district judge treated Montoya as delineating the applicable requirements, and the court of appeals affirmed that decision. See Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899, 902-03 (D. Mass. 1977); see also Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940, 943 (D. Mass. 1978), aff'd sub nom. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979); Native Village of Tyonek v. Puckett, 957 F.2d 631, 635 (9th Cir. 1992); Catawba Indian Tribe v. South Carolina, 718 F.2d 1291, 1298 (4th Cir. 1983), aff'd, 740 F.2d 305 (4th Cir. 1984) (en banc), rev'd on other grounds, 476 U.S. 498 (1986); Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51, 59 (2d Cir. 1994); Joint Tribal Council v. Morton, 528 F.2d 370, 377 n.8 (1st Cir. 1975); Smith & Kancewick, supra note 152, at 483-96 (citing Montoya as authoritative); Native Village of Venetie I.R.A. Council v. Alaska, Nos. F86-0075 CIV (HRH), F87-0051 CIV (HRH), 1994 WL 730893, at *4, *12 (D. Alaska 1994); William W. Quinn, Jr., Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. § 83, 17 AM. INDIAN L. REV. 37, 44-45 (1992) (noting that Montoya has formed the judicial test for courts that have attempted to determine tribal existence); cf. Torres & Milun, supra note 157, at 634-36 (analyzing critically district judge's reliance on Montoya in Mashpee Tribe v. Town of Mashpee).
218. See Weatherhead, supra note 152, at 22, 23-30 (noting consensus among courts, commentators, and BIA that group seeking status as tribe must, inter alia, "form[] a separate community" and must "have a tribal organization with authority over its members"); Sedolvia Native Ass'n, Inc. v. Lujan, 904 F.2d 1335, 1350-51 (9th Cir. 1990) ("Unlike . . . Native Alaskan Villages . . . [plaintiff Native village corporation] is not a governmental unit with a local governing board . . . . Because [plaintiff] is not a governing body, it does not meet one of the basic criteria of an Indian tribe." (citing Montoya)); Golden Hill Paugussett Tribe, 39 F.3d at 59 ("The Montoya/Candelaria definition and the BIA criteria both have anthropological, political, geographical and cultural bases and require, at a minimum, a community with apolitical structure."); United States v. Washington, 641 F.2d 1368, 1372-73 (9th Cir. 1981) (stating that group "must have maintained an organized tribal structure" in order to exercise treaty rights and concluding that appellant groups were not tribes because "the[ir] governments have not controlled the lives of the members"); 1 OPINIONS OF THE SOLICITOR, supra note 115, at 864 (Opinion of Dec. 13, 1938) ("There must be a currently existing group distinct and functioning as a group . . . ."); id. at 725 (Opinion of Feb. 8, 1937) (rejecting St. Croix Chippewa's application for recognition as tribe because "there exists no form of band organization"); see also United States v. Mazurie, 419 U.S. 544, 557 (1975) (upholding congressional delegation to Indian tribes because "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory").
219. See Weatherhead, supra note 152, at 22, 23-30 (noting consensus among courts, commentators, and BIA that group seeking status as tribe must, inter alia, "form[] a separate community" and must "have a tribal organization with authority over its members"); Sedolvia Native Ass'n, Inc. v. Lujan, 904 F.2d 1335, 1350-51 (9th Cir. 1990) ("Unlike . . . Native Alaskan Villages . . . [plaintiff Native village corporation] is not a governmental unit with a local governing board . . . . Because [plaintiff] is not a governing body, it does not meet one of the basic criteria of an Indian tribe." (citing Montoya)); Golden Hill Paugussett Tribe, 39 F.3d at 59 ("The Montoya/Candelaria definition and the BIA criteria both have anthropological, political, geographical and cultural bases and require, at a minimum, a community with apolitical structure."); United States v. Washington, 641 F.2d 1368, 1372-73 (9th Cir. 1981) (stating that group "must have maintained an organized tribal structure" in order to exercise treaty rights and concluding that appellant groups were not tribes because "the[ir] governments have not controlled the lives of the members"); 1 OPINIONS OF THE SOLICITOR, supra note 115, at 864 (Opinion of Dec. 13, 1938) ("There must be a currently existing group distinct and functioning as a group . . . ."); id. at 725 (Opinion of Feb. 8, 1937) (rejecting St. Croix Chippewa's application for recognition as tribe because "there exists no form of band organization"); see also United States v. Mazurie, 419 U.S. 544, 557 (1975) (upholding congressional delegation to Indian tribes because "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory").
220. Thus, in Duro v. Reina, 495 U.S. 676 (1990), the Court, in holding that the Salt River Pima-Maricopa Indians did not have criminal jurisdiction over a nonmember Indian who lived on their reservation, relied in part on "the voluntary character of tribal membership and the concomitant right of participation in a tribal government, the authority of which rests on consent." Id. at 694; see also id. (rejecting "an extension of tribal authority over those who have not given the consent of the governed that provides a fundamental basis for power within our constitutional system"); id. at 693 (stating that tribe's "authority comes from the consent of its members"). Of particular relevance for this Article, the Court stated flatly that "[p]etitioner's general status as an Indian says little about his consent to the exercise of authority over him by a particular tribe." Id. at 695. See generally L. Scott Could, The Consent Paradigm: Tribal Sovereignty at the Millenium, 96 COLUM. L. REV. 809 (1996) (discussing Supreme Court's emphasis on consent).
221. Thus, in Duro v. Reina, 495 U.S. 676 (1990), the Court, in holding that the Salt River Pima-Maricopa Indians did not have criminal jurisdiction over a nonmember Indian who lived on their reservation, relied in part on "the voluntary character of tribal membership and the concomitant right of participation in a tribal government, the authority of which rests on consent." Id. at 694; see also id. (rejecting "an extension of tribal authority over those who have not given the consent of the governed that provides a fundamental basis for power within our constitutional system"); id. at 693 (stating that tribe's "authority comes from the consent of its members"). Of particular relevance for this Article, the Court stated flatly that "[p]etitioner's general status as an Indian says little about his consent to the exercise of authority over him by a particular tribe." Id. at 695. See generally L. Scott Could, The Consent Paradigm: Tribal Sovereignty at the Millenium, 96 COLUM. L. REV. 809 (1996) (discussing Supreme Court's emphasis on consent).
222. There is a robust debate among political philosophers over the individual consent necessary to render a government legitimate. The position taken in this Article is not a statement of adherence to a particular vision of the state, but rather is a judgment about what the Supreme Court would (and perhaps should) consider in the particular context of unrecognized groups seeking status as recognized Indian tribes.
223. Significantly, it is not even clear what percentage of Native Hawaiians consider themselves to be Native Hawaiians, much less members of a Native Hawaiian tribe. The 1990 U.S. Census asked respondents to identify their ethnicity, and one of the options was "Hawaiian." 12.5% of respondents so identified themselves. The State of Hawaii conducted its own tabulation of the population in 1990, however, and it relied not on self-identification but on the ethnic background of the respondents' parents. It found that 19% of the population was Native Hawaiian (or, in the parlance of the survey, "Hawaiian"). See OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 10. This means that about one-third of those with native blood did not (and perhaps do not) identify themselves as Native Hawaiians. See also id. at 9 ("While their ancestors once may have been unified politically, religiously, socially, and culturally, contemporary [Native] Hawaiians are highly differentiated in religion, education, occupation, politics, and even in their claims to Hawaiian identity." (quoting George S. Kanahele, The New Hawaiians, 29 SOC. PROCESS IN HAW. 21, 21 (1982)); OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 24 (summarizing the Native Hawaiian population as "a rapidly growing population, predominantly young in composition, racially mixed, gender-balanced, urbanite, unattached, and slowly moving toward economic self-sufficiency").
224. Significantly, it is not even clear what percentage of Native Hawaiians consider themselves to be Native Hawaiians, much less members of a Native Hawaiian tribe. The 1990 U.S. Census asked respondents to identify their ethnicity, and one of the options was "Hawaiian." 12.5% of respondents so identified themselves. The State of Hawaii conducted its own tabulation of the population in 1990, however, and it relied not on self-identification but on the ethnic background of the respondents' parents. It found that 19% of the population was Native Hawaiian (or, in the parlance of the survey, "Hawaiian"). See OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 10. This means that about one-third of those with native blood did not (and perhaps do not) identify themselves as Native Hawaiians. See also id. at 9 ("While their ancestors once may have been unified politically, religiously, socially, and culturally, contemporary [Native] Hawaiians are highly differentiated in religion, education, occupation, politics, and even in their claims to Hawaiian identity." (quoting George S. Kanahele, The New Hawaiians, 29 SOC. PROCESS IN HAW. 21, 21 (1982)); OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 24 (summarizing the Native Hawaiian population as "a rapidly growing population, predominantly young in composition, racially mixed, gender-balanced, urbanite, unattached, and slowly moving toward economic self-sufficiency").
225. Significantly, it is not even clear what percentage of Native Hawaiians consider themselves to be Native Hawaiians, much less members of a Native Hawaiian tribe. The 1990 U.S. Census asked respondents to identify their ethnicity, and one of the options was "Hawaiian." 12.5% of respondents so identified themselves. The State of Hawaii conducted its own tabulation of the population in 1990, however, and it relied not on self-identification but on the ethnic background of the respondents' parents. It found that 19% of the population was Native Hawaiian (or, in the parlance of the survey, "Hawaiian"). See OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 10. This means that about one-third of those with native blood did not (and perhaps do not) identify themselves as Native Hawaiians. See also id. at 9 ("While their ancestors once may have been unified politically, religiously, socially, and culturally, contemporary [Native] Hawaiians are highly differentiated in religion, education, occupation, politics, and even in their claims to Hawaiian identity." (quoting George S. Kanahele, The New Hawaiians, 29 SOC. PROCESS IN HAW. 21, 21 (1982)); OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 24 (summarizing the Native Hawaiian population as "a rapidly growing population, predominantly young in composition, racially mixed, gender-balanced, urbanite, unattached, and slowly moving toward economic self-sufficiency").
226. As the Hawaiian Sovereignty Election Council has stated: Some Hawaiian organizations have developed constitutions, position papers, and master plans for sovereignty or independence. In essence these organizations are political parties, each earnestly advancing their own platforms. These organizations are self-appointed. They have not received the consent of the Hawaiian people, as a whole, to be their government. HAWAIIAN SOVEREIGNTY ELECTIONS COUNCIL, REPORT TO THE LEGISLATURE 13 (1995); see also Carey Goldberg, Native Hawaiians Vote in Ethnic Referendum, N.Y. TIMES, July 23, 1996, at A10 (noting that there are now scores of Native Hawaiian groups, and that "Native Hawaiian groups remain divided on what sovereignty should mean, and no unifying native Hawaiian leaders have emerged").
227. As the Hawaiian Sovereignty Election Council has stated: Some Hawaiian organizations have developed constitutions, position papers, and master plans for sovereignty or independence. In essence these organizations are political parties, each earnestly advancing their own platforms. These organizations are self-appointed. They have not received the consent of the Hawaiian people, as a whole, to be their government. HAWAIIAN SOVEREIGNTY ELECTIONS COUNCIL, REPORT TO THE LEGISLATURE 13 (1995); see also Carey Goldberg, Native Hawaiians Vote in Ethnic Referendum, N.Y. TIMES, July 23, 1996, at A10 (noting that there are now scores of Native Hawaiian groups, and that "Native Hawaiian groups remain divided on what sovereignty should mean, and no unifying native Hawaiian leaders have emerged").
228. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
229. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
230. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
231. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
232. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
233. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
234. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of
235. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
236. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
237. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
238. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
239. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
240. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
241. Even the Native Hawaiian groups with the largest memberships claim no more than a fraction of Native Hawaiians among their members. See, e.g., Peter Rosegg, Hawaiians Considering 4 Types of Sovereignty, HONOLULU ADVERTISER, Oct. 2, 1994, at B4 (identifying Ka Lahui Hawaii and State Council of Hawaiian Homestead Associations as two biggest groups attempting to constitute Native Hawaiian tribal entity entitled to federal recognition; noting that Ka Lahui claims 24,000 members and State Council 30,000 members); Mahealani Kamau'u & H.K. Bruss Keppeler, Sovereignty: What Will It Look Like?, HONOLULU ADVERTISER, Oct. 24, 1993, at B1 (identifying as two biggest groups attempting to set up their own governing structure Ka Lahui Hawaii, with 18,000 members, or approximately seven percent of total Native Hawaiian populace, and State Council of Hawaiian Homestead Associations, with 30,000 members); Anniversary Stirs Hawaii Sovereignty Movement, N.Y. TIMES, Jan. 18, 1993, at A15 (identifying Ka Lahui Hawaii as "[t]he largest of the pro-sovereignty organizations," and as claiming 14,000 members); Kekuni Blaisdell, 'Aloha 'Aina' at Heart of Sovereignty, HONOLULU ADVERTISER, Mar. 22, 1994, at B1 (noting that Ka Lahui has more than 20,000 members, both Native Hawaiians and non-Native Hawaiians, and that 'Ohana Council claims 7,000 members); Goldberg, supra note 172, at AlO (noting that many Native Hawaiian groups range from family groups to Ka Lahui Hawaii, which claims 21,000 members); Stu Glauberman, Third Hawaiian Group Enters Self-Determination Fight, HONOLULU ADVERTISER, July 25, 1989, at A3 (identifying Office of Hawaiian Affairs and Ka Lahui Hawaii as two main groups fighting for Native Hawaiian self-determination, and stating that new third group. State Council of Hawaiian Homestead Associations, includes association presidents who represent about 27,000 people; identifying Hou Hawaiians as much smaller group); Angelo Ragaza, Trouble in Paradise, ETHNIC NEWSWATCH, Jan. 31, 1996, at 48 (noting that Nation of Hawaii claims 10,000 members, and that Ka Lahui Hawaii claims 20,000, out of estimated total Native Hawaiian population of at least 200,000); Hawaii's Search for Sovereignty, CHRISTIAN SCI. MONITOR, Oct. 17, 1994, at 9 (noting that State Council of Hawaiian Homestead Associations claims 30,000 members); Stu Glauberman, Who's Who in Quest for Sovereignty Here, HONOLULU ADVERTISER, June 13, 1992, at A2 (stating that Ka Lahui has had 12,000 enrolled members since 1987); Burl Burlingame, Dennis 'Bumpy' Kanehele: His Actions Turned Sovereignty into More than Just a Concept, HONOLULU STAR-BULLETIN, Jan. 2, 1995, at A7 (noting that 'Ohana Council changed name to "The Provisional Government of the Independent Nation State of Hawaii," and identifying it as "a vague confederation of approximately 7,000 sovereignty boosters"); Amicus Brief for Hou Hawaiians at 2, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (No. 83-141) ("The Hou Hawaiians was founded in 1975 and has approximately 300 members."); Appellants' Supplemental Memorandum at 10, Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985) (No. 84-2444) ("[T]he Hou have approximately 300 members."). The existence of so many groups reflects divisions within the Native Hawaiian community over whether there should be a Native Hawaiian governmental entity, and, if so, what form it should take. See Pat Omandam, No Consensus on Sovereignty: Too Much Infighting in Hawaiian Community, 92 Percent Say, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at 8 (discussing polls showing absence of consensus among Native Hawaiians); Christy Hoppe, Divided Destiny: Despite Factions, Many Hawaiians Support Native Rule, DALLAS MORNING NEWS, Sept. 18, 1995, at 1A (noting disputes among sovereignty groups); Ragaza, supra, at 48 (noting that sovereignty groups' inability to agree on course of action has weakened their credibility); Kamau'u & Keppeler, supra, at B1 (noting different visions of Native Hawaiians' future, ranging from formation of independent nation to staying with status quo); Alan Matsuoka, Unity May Be the Key to Turning the Sovereignty Dream into Reality, HONOLULU STAR-BULLETIN, Aug. 25, 1995, at A1 (noting different approaches).
242. One commentator has so suggested. See Houghton, supra note 19, at 45-47 (asserting that Native Hawaiians exercise self-government through OHA and HHC).
243. The purposes of OHA are stated in statutes, and the first two of them are bettering the conditions of Native Hawaiians and Hawaiians (the latter encompassing the former). See HAW. REV. STAT. ANN. § 10-3(1)-(2) (Michie 1995). There is no statement of purpose in the HHCA, and the federal government has declined to approve the statement of purpose passed by the Hawaii legislature. See supra note 67. The purpose suggested by the HHCA's legislative history was improving the conditions of landless Native Hawaiians. See, e.g., 1920 Hearings, supra note 63, at 129-31 (statement of Franklin Lane, Secretary of Interior). As was noted above, however, commentators have argued that the real purpose was to aid Western sugar interests and/or to prevent Asian homesteading. See supra note 63.
244. As was noted above, OHA's electorate - and its class of beneficiaries - includes all Hawaiians who are descended from pre-1778 inhabitants, not just those whose native blood quantum is 50% or greater. See supra notes 71-78 and accompanying text. Also, all the members of the Board of Trustees of OHA "shall be Hawaiians," HAW. CONST. art. XII, § 5, (i.e., "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands" in 1778, HAW. REV. STAT. ANN. § 10-2 (Michie 1995)), and four of the nine members of the HHC "shall be descendants of not less than one-fourth part of the blood of the races inhabiting the Hawaiian islands previous to 1778," HHCA § 202(a).
245. It would be a clear case of bootstrapping for the federal government to designate the BIA as a semiautonomous entity, to allow all "Indians," defined racially, to vote for the board of the BIA, and then to assert that the government had thereby brought all those Indians within the special relationship; it would also circumvent the limitations on recognition suggested by United States v. Sandoval, 231 U.S. 28, 46 (1913), see infra notes 213-15 and accompanying text, and the tribe/race distinction of Mancari. That is, if the creation of OHA were sufficient to constitute a tribe, then there would be no limitation on a state government, or the federal government, recognizing all of the Native Americans within its boundaries and thereby rendering Sandoval's, and Mancari's limitations meaningless.
246. It should also be noted that it is not at all clear that the creation of OHA was constitutional in the first place, as it was (and is) an organization designed solely to benefit a group based on ethnicity. See infra notes 217, 242 and accompanying text. It would, of course, be circular reasoning to argue that Native Hawaiians are a tribe because of OHA, and that OHA is constitutional because its beneficiaries are members of the tribe.
247. As will be discussed below, it would be a quite different matter if Native Hawaiians created a tribal entity - for example, by Native Hawaiians holding their own elections, creating a governmental body, and defining its power and authority. See infra Part V.
248. It should be noted, though, that whether one posits a mass tribe or a series of tribes, the incompatibility with the language of the statutes benefiting Native Hawaiians would remain; in either case, the problem is that the statutes do not provide for distribution through tribes and, in fact, contain no reference to tribal affiliation (and there are not even any regulations tying the programs to tribal membership).
249. 764 F.2d 623 (9th Cir. 1985).
250. See id. at 625-26.
251. See id. at 627.
252. See id. (discussing historical continuity and longstanding tribal political authority); id. at 628 (discussing current exercise of political authority).
253. Id. 186. See supra note 173.
254. See supra Section III.A. A court could try to save the Native Hawaiian programs by reading the statutes in conjunction with regulations limiting the benefits to members of tribes, as the Supreme Court did in Mancari. The obvious problem with such an approach is that no such limiting regulations exist.
255. This argument could be construed as implicating equal protection: Indian tribes and Native Hawaiians are similarly situated, so the government (in this case, interestingly, through its courts) would have no rational basis for applying a different constitutional standard to a program benefiting Native Hawaiians than to one benefiting Indian tribes.
256. The findings of many of the federal statutes singling out Native Hawaiians rely heavily on the history of Native Hawaiians, implicitly (and sometimes explicitly) suggesting a similarity to the history of Indian tribes. See, e.g., 20 U.S.C. § 7902 (1994) (containing 12 findings about history of Kingdom of Hawaii and federal government's relations with Hawaii); Joint Resolution of Nov. 22, 1923, Pub. L. No. 103-150, 107 Stat. 1510 (1993).
257. On the significance of the United States's actions, see infra Subsection III.D.2. Some commentators have suggested that the Hawaiian Constitution of 1840 and instruments signed by Kamehameha III in 1848 indicate that the Crown and Government lands were owned for the benefit of "the chiefs and people." See MELODY KAPILIALOHA MACKENZIE, NATIVE HAWAIIAN RIGHTS HANDBOOK 5-9 (1991); Karen N. Blondin, A Case for Reparations for Native Hawaiians, 16 HAW. BAR J. 13, 29 (1981). The meaning of the quoted phrase is not entirely clear: the "people" may not have been limited to Native Hawaiians, and one commentator has noted that "[b]oth Kamehameha III and the legislature used the phrase 'chiefs and people' as legally interchangeable with 'the Hawaiian Government.'" Hanifin, supra note 58, at 117. In addition, the 1840 Constitution was repealed in 1852, and the subsequent Hawaiian constitutions (the last of which before the overthrow was the "Bayonet Constitution" of 1887) did not suggest that the Crown or Government lands were for the people. See id. at 116. Moreover, the Hawaii Supreme Court held that the 1848 instruments provided for ownership in the Crown and the Government, respectively, not in the people. See In re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 725-26 (1964); McPherson, supra note 19, at 459. Notwithstanding the foregoing, it may be that Native Hawaiians had certain traditional rights (such as gathering rights) in some Crown and Government lands as of 1893. Cf. Public Access Shoreline Hawaii v. Hawai'i County Planning Comm'n, 903 P.2d 1246, 1271-72 (Haw. 1995) (noting possibility of retention of traditional rights by some Native Hawaiians). No court or commentator appears to have alleged, however, that such traditional rights included the right to exclusive use and possession of the land - a right that is essential to any claim of ownership. See 'Ohana v. United States, 76 F.3d 280, 282 (9th Cir. 1996). Furthermore, insofar as Native Hawaiians had traditional rights in some of the land, it is not clear that the events of 1893 and 1898 limited them. Cf. Pele Defense Fund v. Paty, 837 P.2d 1247, 1272 (Haw. 1992) (noting possibility of survival of traditional gathering rights in ceded lands). Nonetheless, the possibility that the United States's actions eliminated some rights that Native Hawaiians had in Crown and/or Government lands arguably provides some support for the historical analogy to dispossession of Indians' lands.
258. On the significance of the United States's actions, see infra Subsection III.D.2. Some commentators have suggested that the Hawaiian Constitution of 1840 and instruments signed by Kamehameha III in 1848 indicate that the Crown and Government lands were owned for the benefit of "the chiefs and people." See MELODY KAPILIALOHA MACKENZIE, NATIVE HAWAIIAN RIGHTS HANDBOOK 5-9 (1991); Karen N. Blondin, A Case for Reparations for Native Hawaiians, 16 HAW. BAR J. 13, 29 (1981). The meaning of the quoted phrase is not entirely clear: the "people" may not have been limited to Native Hawaiians, and one commentator has noted that "[b]oth Kamehameha III and the legislature used the phrase 'chiefs and people' as legally interchangeable with 'the Hawaiian Government.'" Hanifin, supra note 58, at 117. In addition, the 1840 Constitution was repealed in 1852, and the subsequent Hawaiian constitutions (the last of which before the overthrow was the "Bayonet Constitution" of 1887) did not suggest that the Crown or Government lands were for the people. See id. at 116. Moreover, the Hawaii Supreme Court held that the 1848 instruments provided for ownership in the Crown and the Government, respectively, not in the people. See In re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 725-26 (1964); McPherson, supra note 19, at 459. Notwithstanding the foregoing, it may be that Native Hawaiians had certain traditional rights (such as gathering rights) in some Crown and Government lands as of 1893. Cf. Public Access Shoreline Hawaii v. Hawai'i County Planning Comm'n, 903 P.2d 1246, 1271-72 (Haw. 1995) (noting possibility of retention of traditional rights by some Native Hawaiians). No court or commentator appears to have alleged, however, that such traditional rights included the right to exclusive use and possession of the land - a right that is essential to any claim of ownership. See 'Ohana v. United States, 76 F.3d 280, 282 (9th Cir. 1996). Furthermore, insofar as Native Hawaiians had traditional rights in some of the land, it is not clear that the events of 1893 and 1898 limited them. Cf. Pele Defense Fund v. Paty, 837 P.2d 1247, 1272 (Haw. 1992) (noting possibility of survival of traditional gathering rights in ceded lands). Nonetheless, the possibility that the United States's actions eliminated some rights that Native Hawaiians had in Crown and/or Government lands arguably provides some support for the historical analogy to dispossession of Indians' lands.
259. On the significance of the United States's actions, see infra Subsection III.D.2. Some commentators have suggested that the Hawaiian Constitution of 1840 and instruments signed by Kamehameha III in 1848 indicate that the Crown and Government lands were owned for the benefit of "the chiefs and people." See MELODY KAPILIALOHA MACKENZIE, NATIVE HAWAIIAN RIGHTS HANDBOOK 5-9 (1991); Karen N. Blondin, A Case for Reparations for Native Hawaiians, 16 HAW. BAR J. 13, 29 (1981). The meaning of the quoted phrase is not entirely clear: the "people" may not have been limited to Native Hawaiians, and one commentator has noted that "[b]oth Kamehameha III and the legislature used the phrase 'chiefs and people' as legally interchangeable with 'the Hawaiian Government.'" Hanifin, supra note 58, at 117. In addition, the 1840 Constitution was repealed in 1852, and the subsequent Hawaiian constitutions (the last of which before the overthrow was the "Bayonet Constitution" of 1887) did not suggest that the Crown or Government lands were for the people. See id. at 116. Moreover, the Hawaii Supreme Court held that the 1848 instruments provided for ownership in the Crown and the Government, respectively, not in the people. See In re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 725-26 (1964); McPherson, supra note 19, at 459. Notwithstanding the foregoing, it may be that Native Hawaiians had certain traditional rights (such as gathering rights) in some Crown and Government lands as of 1893. Cf. Public Access Shoreline Hawaii v. Hawai'i County Planning Comm'n, 903 P.2d 1246, 1271-72 (Haw. 1995) (noting possibility of retention of traditional rights by some Native Hawaiians). No court or commentator appears to have alleged, however, that such traditional rights included the right to exclusive use and possession of the land - a right that is essential to any claim of ownership. See 'Ohana v. United States, 76 F.3d 280, 282 (9th Cir. 1996). Furthermore, insofar as Native Hawaiians had traditional rights in some of the land, it is not clear that the events of 1893 and 1898 limited them. Cf. Pele Defense Fund v. Paty, 837 P.2d 1247, 1272 (Haw. 1992) (noting possibility of survival of traditional gathering rights in ceded lands). Nonetheless, the possibility that the United States's actions eliminated some rights that Native Hawaiians had in Crown and/or Government lands arguably provides some support for the historical analogy to dispossession of Indians' lands.
260. See CORNELL, supra note 41, at 72-84, 101-05 (1988). See generally COHEN, supra note 2, at 62-150 (discussing Indian treaties and legislation, and scope of tribal self-government).
261. See IRA, ch. 576, 48 Stat. 984 (1934); FRANCIS P. PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS 954-68 (1984).
262. See IRA, ch. 576, 48 Stat. 984 (1934); 2 FRANCIS P. PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS 954-68 (1984).
263. In addition, whereas the IRA had fostered the solidification of tribal structures, the HHCA, in leasing land directly to individuals, provided no incentives for the formation of tribes. For a discussion of the potential significance of this aspect of the HHCA, see infra note 276.
264. It also might be argued that failing to recognize a special relationship with Native Hawaiians would create a pernicious incentive system: If the United States completely destroys the governing structures of an indigenous group, it owes nothing to them; but if it leaves some remnants of the government intact, it must accord that government special status and give it benefits. This argument, however, misses the mark in two ways. First, the issue addressed in this Article is not whether the government "owes" Native Hawaiians anything; the issue is whether, when the government chooses to assist Native Hawaiians (as I believe it should), its actions are subject to strict scrutiny or rational basis review. Concluding that strict scrutiny applies does not mean that the government therefore "owes" nothing to Native Hawaiians. Second, the existence of a special relationship will allow the federal government to single out Native Hawaiians in all kinds of ways, many of which may be detrimental to Native Hawaiians. See supra note 30; infra text accompanying note 201. The special relationship, then, is not some sort of benefit that is being withheld from Native Hawaiians.
265. In fact, in 1993 Congress passed a joint resolution "apologiz[ing] to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States." Joint Resolution of Nov. 22, 1993, Pub. L. No. 103-150, § 1, 107 Stat. 1510, 1513. The resolution does not actually acknowledge direct federal responsibility for the overthrow, but it can be read as accepting some responsibility for the actions of the United States Minister and other Americans. The joint resolution consists of a lengthy preamble and a few operative provisions. Though these operative provisions are extremely limited and appear to create no rights, the apology is a part of those operative provisions (not just the preamble); as a result, it arguably provides support for the proposition that the United States bears some responsibility for the 1893 overthrow.
266. See supra text accompanying note 54.
267. In fact, as a major treatise notes, "[b]y the time of annexation, Native Hawaiians had been deprived of their original sovereignty for many years, [so] annexation did not radically alter the condition of their lives." COHEN, supra note 2, at 801.
268. See supra text accompanying notes 49-55.
269. This is not to say that the federal government's actions did not harm Native Hawaiians; they often did, just as the federal government inflicted harms on African Americans and, for that matter, on Asians in Hawaii. In fact, as to the latter, not only did the United States deny the franchise to Asians (while allowing Native Hawaiians to vote), but one of the articulated impetuses for the 1900 Organic Act for the Territory of Hawaii, ch. 339, 31 Stat. 141, was to extend to Hawaii strict limits on the immigration of Asians. See H.R. REP. No. 56-305, at 5 (1900); see also supra note 62 and accompanying text, note 63. As the example of African Americans reveals, however, the government's prior infliction of harms does not render current benefits to the descendants of the harmed group nonsuspect.
270. This is not to suggest, of course, that the United States has no culpability for the destruction of the Hawaiian kingdom; it is just that the kingdom destroyed was not limited to descendants of pre-1778 inhabitants. Accordingly, insofar as one might characterize the overthrown government as an "Indian Tribe[]" for constitutional purposes, the tribe so construed probably would not be limited to those descended from pre-1778 inhabitants, and instead might include later arrivals of a variety of races. While this does not necessarily defeat the argument that the government was a tribe, because it is conceivable that a court would adopt a broad definition of "Indian," it does cast doubt on the argument that the United States's actions in the 1890s provide a basis for giving benefits to a group comprising only pre-1778 inhabitants.
271. See supra note 30. For a related discussion of this issue, see infra note 246.
272. As a judge and Native American law scholar has noted, "it is technically inaccurate to refer to 'terminated tribes' because it is the federal-tribal relationship and not the tribe that is terminated by statute." WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW 52 (1st ed. 1981). "Terminated tribe" has become a term of art in Native American law, however, which this Article will use merely as convenient shorthand.
273. See supra notes 56-59 and accompanying text. Even if one construed the post-1893 Republic as constituting a Native Hawaiian government (which would be a stretch, given that it apparently was controlled by Westerners), it, too, was officially terminated: The Annexation Act of 1898 stated that the Government of Hawaii had "cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies." Act No. 55, 30 Stat. 750, 750 (1898).
274. See South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 505-06 (1986) (holding that, because of termination, "the special federal services and statutory protections for Indians are no longer applicable to the Catawba Tribe and its members"); United States v. Antelope, 430 U.S. 641, 647 n.7 (1977) ("'While anthropologically a Klamath Indian even after the Termination Act obviously remains an Indian, his unique status vis-à-vis the Federal Government no longer exists.'" (quoting United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974))); St. Cloud v. United States, 702 F. Supp. 1456, 1465 (C.D.S.D. 1988) (holding that Termination Act "terminated the special relationship between St. Cloud and the federal government"); see also Lee Herold Storey, Leasing Indian Water Off ihe Reservation: A Use Consistent With the Reservation's Purpose, 76 CAL. L. REV. 179, 204 n.141 (1988) ("'Termination' means that an Indian treaty will no longer be recognized by the United States and that the tribe no longer retains special rights as a sovereign nation."). As the Ninth Circuit stated in United Slates v. Washington, 641 F.2d 1368 (9th Cir. 1981): When assimilation is complete, those of the group purporting to be the tribe cannot claim tribal rights. While it might be said that the result is unjust if the tribe has suffered from federal or state discrimination, it is required by the communal nature of tribal rights. To warrant special treatment, tribes must survive as distinct communities. Id. at 1373. Congress can, of course, rerecognize a terminated tribe, just as it can newly recognize a tribe, but such an action would still be subject to the limitation suggested by United States v. Sandoval, 231 U.S. 28, 46 (1913). See infra notes 213-15 and accompanying text.
275. See South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 505-06 (1986) (holding that, because of termination, "the special federal services and statutory protections for Indians are no longer applicable to the Catawba Tribe and its members"); United States v. Antelope, 430 U.S. 641, 647 n.7 (1977) ("'While anthropologically a Klamath Indian even after the Termination Act obviously remains an Indian, his unique status vis-à-vis the Federal Government no longer exists.'" (quoting United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974))); St. Cloud v. United States, 702 F. Supp. 1456, 1465 (C.D.S.D. 1988) (holding that Termination Act "terminated the special relationship between St. Cloud and the federal government"); see also Lee Herold Storey, Leasing Indian Water Off ihe Reservation: A Use Consistent With the Reservation's Purpose, 76 CAL. L. REV. 179, 204 n.141 (1988) ("'Termination' means that an Indian treaty will no longer be recognized by the United States and that the tribe no longer retains special rights as a sovereign nation."). As the Ninth Circuit stated in United Slates v. Washington, 641 F.2d 1368 (9th Cir. 1981): When assimilation is complete, those of the group purporting to be the tribe cannot claim tribal rights. While it might be said that the result is unjust if the tribe has suffered from federal or state discrimination, it is required by the communal nature of tribal rights. To warrant special treatment, tribes must survive as distinct communities. Id. at 1373. Congress can, of course, rerecognize a terminated tribe, just as it can newly recognize a tribe, but such an action would still be subject to the limitation suggested by United States v. Sandoval, 231 U.S. 28, 46 (1913). See infra notes 213-15 and accompanying text.
276. The terminated tribe analogy may nonetheless be relevant to federal government efforts to foster the re-creation of a Native Hawaiian government. See infra note 265.
277. There may seem to be an additional argument based on similarities between Indian tribes and Native Hawaiians - namely, that though Native Hawaiians may not be cohesive enough to meet the standards applied today for status as a tribe, neither did some of the currently recognized Indian groups when they were originally recognized. The suggestion would be that Native Hawaiians are no less cohesive than some tribes were when they were recognized, so there is no legitimate, rational basis lor depriving Native Hawaiians of recognition. It should be noted that this is the same attack that nonrecognized American Indian groups can make on the current standards for recognition. It is an attack on the recognition process itself; the relevant indigenous group would assert that the current standards are ahistorical and therefore inappropriate (and perhaps violate the group's right to equal protection). Assuming that certain currently recognized tribes would not, at the time of recognition, have met current standards for tribal status, this argument is nonetheless unavailing. Insofar as the earlier recognition of putatively inchoate groups of American Indians would have been constitutional at the time but would be unconstitutional now, this merely demonstrates that constitutional standards change over time. It is no more inappropriately ahistorical to apply current, higher standards to the recognition of new Indian or Native Hawaiian tribes than it is to apply current, higher standards to statutes singling out the members of one race for a benefit. It may be, for example, that Congress could have constitutionally singled out African Americans for special treatment in 1880, but that does not immunize either that preference or a similar newly created preference today. If the federal government could be estopped from changing its legal standards because the change would be ahistorical, separate but equal might prevail today. One could attempt to distinguish the definition of "Indian Tribe[]" from other parts of the Constitution and argue that the government should not alter its application of this definition. There appears to be no reason, however, why changes in equal protection standards should not affect what the federal government can do, including in its recognition of "Indian Tribes." Nothing in the Constitution suggests that the definition of "Indian Tribe[]" should be hermetically sealed from the remainder of constitutional law such that changes in other aspects of constitutional jurisprudence leave "Indian Tribe[]" unaffected. Insofar as there may be a few Indian tribes that do not and have never met the relevant requirements for status as a tribe but nonetheless were (and continue to be) recognized, it seems doubtful that this alters the constitutional analysis. It may be that a group has long been subject to benefits, but that does not, of course, mean that those benefits are therefore constitutional. It merely means that no one has yet challenged the existence of the group in court (or courts have ignored equal protection limitations on benefits), and that the other two branches of the federal government have been remiss in their duty to ensure that they act constitutionally by giving benefits on a racial basis only when those benefits are narrowly tailored to further a compelling government interest. In this regard, it does bear mentioning that there is another possible category: Indian groups that were inchoate at the time they were recognized but, in response to
278. See infra note 265. The complicating factor here is that the "tribe" that the United States helped to destroy was not limited to descendants of pre-1778 inhabitants, see supra text accompanying notes 53-55; so, insofar as the federal government's compelling interest would flow from harms inflicted by the United States (rather than those inflicted by Westerners more generally), the relevant harmed group might not be limited to Native Hawaiians.
279. The argument, in this strongest form, would be that a court may not revisit the question of recognition where Congress has clearly spoken.
280. It is not clear, in fact, at what point the HHCA would have been considered to violate the equal protection component of the Fifth Amendment (assuming, of course, that it does so now). This raises an interesting and difficult question of temporality. In 1921, when the HHCA was enacted, there would have been three major hurdles for any litigant who wanted to challenge its constitutionality. First, it is not clear that the Supreme Court would have considered such a challenge justiciable. In Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), the Court suggested that congressional decisions regarding Indians were nonjusticiable political questions, so there was no role for the Court to play in considering them. See id. at 565. But cf. Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977) (rejecting Lone Wolf's suggestion that congressional decisions involving Indian tribes are not justiciable). Second, the Supreme Court's jurisprudence did not include strict scrutiny for measures involving racial classifications, and the Court had not begun construing the Fifth Amendment's Due Process Clause as having an equal protection component. See, e.g., Detroit Bank v. United States, 317 U.S. 329, 337 (1943) ("Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress."); LaBelle Iron Works v. United States, 256 U.S. 377, 392 (1921) ("Reference is made to cases decided under the equal protection clause of the Fourteenth Amendment; but clearly they are not in point. The Fifth Amendment has no equal protection clause . . . .") (citations omitted). The Secretary of Interior appeared to apply correctly the jurisprudence of the day when, in 1921, he rejected the notion that the HHCA constituted impermissible class legislation, analogizing it to legislation for the benefit of Indians or veterans. See 1920 Hearings, supra note 63, at 129-31 (statement of Franklin Lane, Secretary of Interior). He might plausibly have included African Americans on that list as well. It was not until Korematsu v. United States, 323 U.S. 214 (1944), that the Supreme Court suggested that strict scrutiny was appropriate for legislation involving racial classifications, see id. at 216, and it was not until Mancari that the Court articulated the race versus tribe distinction, see Morton v. Mancari, 417 U.S. 535, 553-55 (1974). Third, even if the Fifth Amendment had been understood to prohibit the federal government from enacting legislation to benefit a racial or ethnic group, such a prohibition probably would not have been extended to the territory of Hawaii. As the Attorney General of Hawaii noted in testimony before the House Committee on Territories in 1920, the relevant constitutional provisions were understood not to apply to federal actions on territories. See 1920 Hearings, supra note 63, at 162-64 (statement of Harry Irwin, Attorney General of Hawaii). The Attorney General, in supporting the constitutionality of the HHCA, stated that "[t]he only provisions of the Constitution of the United States which could, by any construction, affect legislation of this kind, are section 2 of article 4 and section 1 of the fourteenth amendment." Hawaiian Homes Commission Act, 1920: Hearings on H.R. 13500 Before the Senate Comm. on Territories, 66th Cong. 134 (1921) (statement of Harry Irwin, Attorney General of Hawaii). Attorney General Irwin explained that the former (the Privileges and Immunities Clause) "has no application to legislation by Congress affecting the Territories," id., and that Section 1 of the Fourteenth Amendment "operates only as a protection against State action," id. at 135. The Supreme Court articulated a similar position in 1922, holding that, absent congressional extension of particular rights to a territory, only "fundamental" constitutional rights applied there. See Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922); see also Hawaii v. Mankichi, 190 U.S. 197, 218 (1903) (holding that provisions of Fifth and Sixth Amendments concerning grand and petit juries were not "fundamental" and therefore not applicable in territory, absent explicit congressional action). It is far from clear that the right to equal protection - specifically, in the context of land - would have been considered to be one of those fundamental rights; in fact, the Ninth Circuit concluded just six years ago that the right to equal opportunity in the acquisition of land on the Northern Marianas Islands was not fundamental, and on that basis held that Congress acted constitutionally in restricting alienation of land to native peoples in the territory's constitution. See Wabol v. Villacrusis, 958 F.2d 1450, 1459-62 (9th Cir. 1990).
281. It is not clear, in fact, at what point the HHCA would have been considered to violate the equal protection component of the Fifth Amendment (assuming, of course, that it does so now). This raises an interesting and difficult question of temporality. In 1921, when the HHCA was enacted, there would have been three major hurdles for any litigant who wanted to challenge its constitutionality. First, it is not clear that the Supreme Court would have considered such a challenge justiciable. In Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), the Court suggested that congressional decisions regarding Indians were nonjusticiable political questions, so there was no role for the Court to play in considering them. See id. at 565. But cf. Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977) (rejecting Lone Wolf's suggestion that congressional decisions involving Indian tribes are not justiciable). Second, the Supreme Court's jurisprudence did not include strict scrutiny for measures involving racial classifications, and the Court had not begun construing the Fifth Amendment's Due Process Clause as having an equal protection component. See, e.g., Detroit Bank v. United States, 317 U.S. 329, 337 (1943) ("Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress."); LaBelle Iron Works v. United States, 256 U.S. 377, 392 (1921) ("Reference is made to cases decided under the equal protection clause of the Fourteenth Amendment; but clearly they are not in point. The Fifth Amendment has no equal protection clause . . . .") (citations omitted). The Secretary of Interior appeared to apply correctly the jurisprudence of the day when, in 1921, he rejected the notion that the HHCA constituted impermissible class legislation, analogizing it to legislation for the benefit of Indians or veterans. See 1920 Hearings, supra note 63, at 129-31 (statement of Franklin Lane, Secretary of Interior). He might plausibly have included African Americans on that list as well. It was not until Korematsu v. United States, 323 U.S. 214 (1944), that the Supreme Court suggested that strict scrutiny was appropriate for legislation involving racial classifications, see id. at 216, and it was not until Mancari that the Court articulated the race versus tribe distinction, see Morton v. Mancari, 417 U.S. 535, 553-55 (1974). Third, even if the Fifth Amendment had been understood to prohibit the federal government from enacting legislation to benefit a racial or ethnic group, such a prohibition probably would not have been extended to the territory of Hawaii. As the Attorney General of Hawaii noted in testimony before the House Committee on Territories in 1920, the relevant constitutional provisions were understood not to apply to federal actions on territories. See 1920 Hearings, supra note 63, at 162-64 (statement of Harry Irwin, Attorney General of Hawaii). The Attorney General, in supporting the constitutionality of the HHCA, stated that "[t]he only provisions of the Constitution of the United States which could, by any construction, affect legislation of this kind, are section 2 of article 4 and section 1 of the fourteenth amendment." Hawaiian Homes Commission Act, 1920: Hearings on H.R. 13500 Before the Senate Comm. on Territories, 66th Cong. 134 (1921) (statement of Harry Irwin, Attorney General of Hawaii). Attorney General Irwin explained that the former (the Privileges and Immunities Clause) "has no application to legislation by Congress affecting the Territories," id., and that Section 1 of the Fourteenth Amendment "operates only as a protection against State action," id. at 135. The Supreme Court articulated a similar position in 1922, holding that, absent congressional extension of particular rights to a territory, only "fundamental" constitutional rights applied there. See Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922); see also Hawaii v. Mankichi, 190 U.S. 197, 218 (1903) (holding that provisions of Fifth and Sixth Amendments concerning grand and petit juries were not "fundamental" and therefore not applicable in territory, absent explicit congressional action). It is far from clear that the right to equal protection - specifically, in the context of land - would have been considered to be one of those fundamental rights; in fact, the Ninth Circuit concluded just six years ago that the right to equal opportunity in the acquisition of land on the Northern Marianas Islands was not fundamental, and on that basis held that Congress acted constitutionally in restricting alienation of land to native peoples in the territory's constitution. See Wabol v. Villacrusis, 958 F.2d 1450, 1459-62 (9th Cir. 1990).
282. See, e.g., INS v. Chadha, 462 U.S. 919 (1983) (striking down longstanding congressional policy of inserting legislative vetoes in legislation); Bolling v. Sharpe, 347 U.S. 497 (1954) (striking down longstanding federal policy of racial segregation in public schools).
283. Mancari, 417 U.S. at 553 n.24.
284. Significantly, the Court in Mancari had before it a longstanding congressional enactment that encompassed nontribal Indians: the IRA, which applied to those who were members of tribes or had 50% native blood. If the existence of such an enactment (the foundational modern statute on Indians, no less) had been sufficient to create a special relationship with the class it delineated, the Court could have simply deferred to its definition. In reality, of course, Mancari avoided the language of the IRA and delineated the special relationship as applying to tribal members, rather than all those covered by the statute. See id.; supra note 38.
285. 231 U.S. 28 (1913).
286. Id. at 46; see also Baker v. Carr, 369 U.S. 186, 216-17 (1962) (quoting same language from Sandoval, then stating, "Able to discern what is 'distinctly Indian,' the courts will strike down any heedless extension of that label. They will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power.") (citation omitted); United States v. Chavez, 290 U.S. 357, 363 (1933) (quoting same language from Sandoval); United Stales v. Candelaria, 271 U.S. 432, 439 (1926) (same); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 n.3 (1st Cir. 1979) ("Nor can Congress arbitrarily label a group of people a tribe."). As Christopher Ford has noted, the Court's conclusion in Sandoval underscored its unwillingness simply to defer to Congress: In finding that the Pueblo Indians of New Mexico could be regulated as an Indian tribe pursuant to the enabling legislation which authorized New Mexico's entry into the Union, the Court did not stop upon finding a sort of de facto federal recognition resulting from the Pueblos' treatment by the President and Congress as "dependent communities entitled to [United States] aid and protection, like other Indian tribes." Rather, the Court undertook an independent examination into the "Indian-ness" of the Pueblo groups: "[C]onsidering their Indian lineage," and their "isolated communal life, primitive customs and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary but must be regarded as both authorized and controlling." Christopher A. Ford, Executive Prerogatives in Federal Indian Jurisprudence: The Constitutional Law of Tribal Recognition, 73 DENV. U. L. REV. 141, 157 (1995) (footnotes omitted) (quoting Sandoval, 231 U.S. at 47).
287. Delaware Tribal Bus. Comm., 430 U.S. at 84 (quoting United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1946)); see also United States v. Sioux Nation of Indians, 448 U.S. 371, 413 (1980) (stating that deference to Congress in tribal matters embodied in political question doctrine "has long since been discredited in takings cases, and was expressly laid to rest in Delaware Tribal Business Comm[ittee] v. Weeks").
288. 115 S. Ct. 2097 (1995).
289. Interestingly, the question whether the special relationship extends to Native Hawaiians may have limited significance for OHA - because OHA might be subject to strict scrutiny in any event. In the one Supreme Court case in which the Court considered an equal protection challenge to a state action that treated Indian tribes (or their members) specially, the Supreme Court stated clearly that, though "'the unique legal status of Indian tribes under federal law' permits the Federal Government to enact legislation singling out tribal Indians, . . . States do not enjoy this same unique relationship with Indians . . . ." Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 500-01 (1979) (quoting Mancari, 417 U.S. at 551-52) (emphasis added). Although the Court did not specify the level of scrutiny that would apply to state programs that single out tribal Indians (because it found that the special relationship applied in this case), the exclusion of states from the special relationship indicates that rational basis review would not apply. The reasoning above, see infra text accompanying notes 117-21, regarding Mancari's distinction between tribal and racial classifications applies here: The classification that is not subject to the special relationship (in Mancari, racial classifications, and in Yakima Nation, classifications made by states) presumably would be subject to some form of heightened scrutiny, because otherwise the Court's distinction between those classifications and classifications subject to the special relationship would be irrelevant and misplaced. Thus, some form of heightened scrutiny - probably the one that applies to other state enactments that single out other ethnic groups, i.e., strict scrutiny under City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) - would appear to apply to such enactments. See also infra note 293. OHA could defend itself by pointing out that, in Yakima Nation, the Court actually found that the state enactment at issue was subject to rational basis review, because the state "was legislating under explicit authority granted by Congress" by virtue of a federal law that specifically consented to the state legislation at issue. See Yakima Nation, 439 U.S. at 501. OHA could invoke section 5(f) of the Hawaii Admission Act, which provided that certain lands granted to Hawaii were to be held by the state as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. 48 U.S.C. § 5(f) (1994). The problem for OHA is that its beneficiaries are not limited to "[N]ative Hawaiians, as defined by the Hawaiian Homes Commission Act," and some of its revenues do not come from the lands referred to in section 5(f). See infra note 242; supra notes 71-78 and accompanying text. As a result, it is not at all clear that Yakima Nation's safe harbor for authorized state programs would apply here. See also infra note 292. Thus, with or without a special relationship between the federal government and Native Hawaiians, OHA probably would be subject to heightened scrutiny.
290. Both Adarand and Croson involved government programs that contained racial classifications. See Adarand, 115 S. Ct. at 2101-04; Croson, 488 U.S. at 493-94 (plurality opinion). The Court has ruled in a number of cases that the equal protection components of the Fifth and Fourteenth Amendments reach only state action, so Adarand and Croson have no direct application to private programs. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619-20 (1991); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972); The Civil Rights Cases, 109 U.S. 3, 11 (1883); see also TRIBE, supra note 151, at 1688-720 (discussing difficulty of distinguishing state from private action). It should be noted, however, that the Supreme Court has interpreted certain statutes governing private action as imposing the same equal protection constraints as the Constitution. See, e.g., General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 390-91 (1982) (holding that section 1981 of Civil Rights Act of 1866 imposes same constraints as Constitution). But see Johnson v. Santa Clara County Transp. Agency, 480 U.S. 616, 632-33 (1987) (holding that Title VII is not coterminous with Equal Protection Clause, so that private employers have more latitude than public employers).
291. Both Adarand and Croson involved government programs that contained racial classifications. See Adarand, 115 S. Ct. at 2101-04; Croson, 488 U.S. at 493-94 (plurality opinion). The Court has ruled in a number of cases that the equal protection components of the Fifth and Fourteenth Amendments reach only state action, so Adarand and Croson have no direct application to private programs. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619-20 (1991); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972); The Civil Rights Cases, 109 U.S. 3, 11 (1883); see also TRIBE, supra note 151, at 1688-720 (discussing difficulty of distinguishing state from private action). It should be noted, however, that the Supreme Court has interpreted certain statutes governing private action as imposing the same equal protection constraints as the Constitution. See, e.g., General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 390-91 (1982) (holding that section 1981 of Civil Rights Act of 1866 imposes same constraints as Constitution). But see Johnson v. Santa Clara County Transp. Agency, 480 U.S. 616, 632-33 (1987) (holding that Title VII is not coterminous with Equal Protection Clause, so that private employers have more latitude than public employers).
292. 115 S. Ct. 2097 (1995).
293. 488 U.S. 469 (1989).
294. 115 S. Ct. at 2102-03 (discussing statutory presumption that "Native Americans, Asian Pacific Americans, and other minorities" are socially and economically disadvantaged).
295. 480 U.S. at 478 (discussing statutory scheme classifying Indians, Eskimos, and Aleuts as "minority group members" for purpose of defining Minority Business Enterprises).
296. As was noted above, the programs at issue in Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990), and Fullilove v. Klutznick, 448 U.S. 448 (1980) - the other two major affirmative action cases - also had preferences for Native Americans, defined racially, that were subject to heightened scrutiny. See Metro Broad., 497 U.S. at 553 n.1; Fullilove, 448 U.S. at 454; supra text accompanying notes 138-42.
297. This is particularly likely in light of the fact that neither Congress nor the Department of Interior has formally recognized Native Hawaiians as a tribe. In the absence of a formal recognition, and in light of the many difficulties inherent in such recognition, see supra notes 213-15 and accompanying text, it seems highly implausible that a court would, on its own authority, find that a special relationship exists. This does not mean that Congress could avoid these problems simply by recognizing Native Hawaiians as a tribe. Such recognition, without other actions, probably would not convince a court that the special relationship applied. See infra note 271. The point is simply that, without any federal recognition, Adarand and Croson almost certainly would apply.
298. Adarand, 115 S. Ct. at 2113.
299. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989) (stating that "sorry history of both public and private discrimination in this country [that] has contributed to a lack of opportunities for black entrepreneurs" is insufficient to justify racial classification in contracting); id. at 505 ("To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for 'remedial relief' for every disadvantaged group."). The Court in Adarand did not attempt to explicate how strict scrutiny should be applied in that case; instead it characterized its holding as extending Croson's strict scrutiny standard to federal programs, see Adarand, 115 S. Ct. at 2110-11, 2113-14 (although it did leave open the possibility that Congress's powers might be slightly greater than states' powers, see infra text accompanying note 240). Croson's delineation of the strict scrutiny standard stands, therefore, as the prevailing Supreme Court treatment of this issue. On the application of Adarand, see generally Office of Legal Counsel, Memorandum to General Counsels re: Adarand, June 28, 1995 [hereinafter OLC Memorandum], and Lia A. Fazzone, Comment, Raise High the Roof Beam: Adarand Constructors, Inc. v. Pena and the New Law of Scrutiny for Federal Affirmative Action, 73 DENV. U. L. REV. 599 (1996).
300. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989) (stating that "sorry history of both public and private discrimination in this country [that] has contributed to a lack of opportunities for black entrepreneurs" is insufficient to justify racial classification in contracting); id. at 505 ("To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for 'remedial relief' for every disadvantaged group."). The Court in Adarand did not attempt to explicate how strict scrutiny should be applied in that case; instead it characterized its holding as extending Croson's strict scrutiny standard to federal programs, see Adarand, 115 S. Ct. at 2110-11, 2113-14 (although it did leave open the possibility that Congress's powers might be slightly greater than states' powers, see infra text accompanying note 240). Croson's delineation of the strict scrutiny standard stands, therefore, as the prevailing Supreme Court treatment of this issue. On the application of Adarand, see generally Office of Legal Counsel, Memorandum to General Counsels re: Adarand, June 28, 1995 [hereinafter OLC Memorandum], and Lia A. Fazzone, Comment, Raise High the Roof Beam: Adarand Constructors, Inc. v. Pena and the New Law of Scrutiny for Federal Affirmative Action, 73 DENV. U. L. REV. 599 (1996).
301. See Croson, 488 U.S. at 499 (stating that "an amorphous claim that there has been past discrimination in a particular industry cannot justify" racial quota).
302. See id. at 498.
303. See id. at 504. Croson did not clarify whether the government entity must have evidence of discrimination sufficient to satisfy strict scrutiny before it acts, or whether it can merely have a significant quantum of evidence at the time of enactment and later buttress it with additional studies. Lower courts, however, have allowed the use of post hoc studies to supplement pre-enactmem evidence. See Concrete Works of Colo., Inc. v. City of Denver, 36 F.3d 1513, 1521 (10th Cir. 1994), cert. denied, 115 S. Ct. 1315 (1995); Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1004 (3d Cir. 1993); Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir. 1992).
304. Croson, 488 U.S. at 500 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality opinion)).
305. See id. at 500, 501. Neither Adarand nor Croson explicitly rejected the possibility that a nonremedial objective - such as diversity - could constitute a compelling interest. Justice O'Connor's opinion in Croson strongly so suggested, however: "Unless [classifications based on race] are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility." Id. at 493 (plurality opinion) (emphasis added). Even if a nonremedial objective could constitute a compelling interest, it is not clear that many, if any, of the programs benefiting Native Hawaiians could be persuasively characterized as advancing such an objective. Cf. Metro Broad., Inc. v. FCC, 497 U.S. 547, 569-79 (1990) (reviewing evidence that broadcast licensing preferences for minorities adds variety to perspectives communicated by radio and television).
306. See Fazzone, supra note 226, at 616-17; OLC Memorandum, supra note 226, at 19-28.
307. See Croson, 488 U.S. at 507.
308. See id. at 508.
309. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978) (opinion of Powell, J.).
310. See United States v. Paradise, 480 U.S. 149, 178 (1987) (plurality opinion); Fullilove v. Klutznick, 448 U.S. 448, 489 (plurality opinion); id. at 513 (Powell, J., concurring).
311. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-84 (1986) (plurality opinion).
312. The Court in Croson indicated what it meant by relevant statistics. Richmond had emphasized that in the five years before its program began, minority businesses were awarded less than one percent of construction contracts despite the fact that minorities constituted half of Richmond's population, and it argued that this disparity created an inference of discrimination in the construction industry. Richmond also noted that there were very few minority members of local construction trade associations. The Court rejected these comparisons as inadequate; it said that more probative statistical inquiries would have compared the number of qualified minorities in the relevant labor market with the percent of contracts received, and the number of minority contractors qualified to join trade associations with the number of minorities in those associations. See Croson, 488 U.S. at 499-504.
313. See Contractors Ass'n v. City of Philadelphia, 893 F. Supp. 419, 427-38 (E.D. Pa. 1995) (rejecting disparity study as flawed and unreliable); Associated Gen. Contractors v. City of New Haven, 791 F. Supp. 941, 946-48 (D. Conn. 1992) (rejecting evidence gathered by New Haven as inadequate factual predicate to justify set-aside ordinance), vacated as moot, 41 F.3d 62 (2d Cir. 1994); see also Concrete Works v. City of Denver, 36 F.3d 1513, 1530-31 (10th Cir. 1994) (rejecting certain findings but remanding rather than striking down program), cert. denied, 115 S. Ct. 1315 (1995); Lamprecht v. FCC, 958 F.2d 382, 395-98 (D.C. Cir. 1992) (Thomas, J., sitting by designation) (rejecting findings (in case involving nonremedial program) indicating that preference for women would ameliorate barriers faced by women).
314. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2114 (1995).
315. See Croson, 488 U.S. at 500 (treating requirement of strong basis in evidence as integral to strict scrutiny standard); see also OLC Memorandum, supra note 226, at 32 ("[A]fter Adarand, Congress is subject to the Croson 'strong basis in evidence' standard."). The main potential difference that the Court has suggested between Congress's powers under Section 5 and those of the states is that Congress can rely on national findings, rather than having to make findings for each affected region of the country. See Croson, 488 U.S. at 504 (noting possibility of Congress making national findings); Fullilove, 448 U.S. at 515-16 n.14 (Powell, J., concurring) ("The degree of specificity required in the findings of discrimination and the breadth of discretion in the choice of remedies may vary with the nature and authority of a governmental body."). This distinction would have no real impact on programs benefiting Native Hawaiians, as the geographical breadth of any congressional findings regarding Native Hawaiians presumably would not be an issue.
316. If the review of federal programs were more lenient because of Congress's Section 5 authority, such review would probably apply not only to federal programs but also to a program like the HHCA that Congress originally enacted and then imposed on Hawaii. After all, Congress did not merely authorize Hawaii's passage of the HHCA; it made such passage a condition of statehood. See Admission Act § 4 ("As a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of said State . . . ."). Moreover, the requirement was not that Hawaii enact some form of homelands program, but that it pass the HHCA. Hawaii has enacted changes to the HHCA, but most of them have been approved by Congress (because the Admission Act required that certain changes depend upon federal consent). See supra notes 64-67. There are, however, some changes to the HHCA that have not been approved by Congress (usually because the Admission Act exempted them from this requirement), and it could be argued that such changes mean that the HHCA has exceeded the federal authorization and thus is outside Congress's Section 5 powers. See supra notes 64, 67. This presents a thorny question. It might be noted that the Admission Act specifically permitted such changes, and that Hawaii is legislating pursuant to that authorization. The problem with this reasoning is that giving the power to change is different from authorizing the changes themselves; after all, the Admission Act also allows Hawaii to amend any of the territorial laws that Hawaii inherited (except the HHCA, of course) and to have the powers of lawmaking ordinarily accorded to states, see Admission Act § 15, but that does not mean that each amendment of a territorial law or each new law can thereby be characterized as authorized by the federal government. In any event, even if all of the HHCA were construed as enacted pursuant to Congress's Section 5 authority, it seems unlikely that a court would reach the same conclusion with respect to the other major state program for Native Hawaiians, OHA. Unlike the HHCA, the Hawaii law (in this case, a constitutional amendment) creating OHA was not required by the federal government. It was the product of a state plan to benefit all Native Hawaiians - i.e., all those who were descended from pre-1778 inhabitants. Many legislators apparently believed that the creation of OHA was grounded in section 5(f) of the Admission Act, which provided that certain federal lands were to be "held by . . . [Hawaii] as a public trust" for five purposes, one of which was "the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920." Admission Act § 5(f); see Van Dyke, supra note 19, at 72-73; 80-8 Op. Haw. Att'y Gen. 12-13 (1980) ("OHA insures that native Hawaiians will receive a direct beneficial interest from public lands."). OHA's revenue, however, is not limited to that from the public lands delineated in section 5(f), so the program's implementation is much broader than was provided for by the Admission Act. Furthermore, the class of beneficiaries of OHA programs includes all descendants of pre-1778 inhabitants, rather than the HHCA's limitation to those with 50% or more native blood. See supra text accompanying notes 71-75. This definition more than doubles the pool of potential beneficiaries of OHA (from 81,000 to 209,000) and, in this way, exceeds the scope of the original authorization. See supra note 73.
317. It also bears mentioning that the equal protection analysis could be affected by the fact that, though Native Hawaiians are a minority, there is no ethnic majority in Hawaii; in fact, according to the State of Hawaii's figures, Native Hawaiians, Japanese, and Caucasians are the three biggest ethnic groups in Hawaii, each constituting between 19% and 23% of the population. See HAWAII DEP'T OF HEALTH, supra note 54, at A-66 (calculating Hawaii's population as 19.5% Native Hawaiian - defined as having any native blood - 23% Caucasian, 20% Japanese, 10.5% Filipino, 4.5% Chinese, and 22.5% "others"). In light of the absence of a majority group, the Court might examine the legislative enactments for Native Hawaiians more closely, on the theory that various combinations of these minority groups could have aggregated their voting power in the legislature in ways that benefited them and harmed the other minority groups.
318. See supra notes 30, 40-44 and accompanying text.
319. Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 500-01 (1979) (quoting Morton v. Mancari, 417 U.S. 535, 551-52 (1974).
320. Professor L. Scott Gould put the point trenchantly: Although Mancari was greeted by many as a victory for Indians, it was correctly foreseen by others as containing the seeds for discrimination against the tribes it purported to protect and against Indians as individuals. Mancari's perfidy is that, although enunciating a congressional responsibility to tribes, it imposes no limits on the use of the political classifications it creates, thereby allowing the subterfuge of status to overcome distinctions which would otherwise be blatantly unconstitutional. L. Scott Gould, The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution, 28 U.C. DAVIS L. REV. 53, 96 (1994) (footnotes omitted); see also Ball, supra note 28, at 62 ("Although the trust doctrine has undeniably served as a remedy in certain instances of federal mismanagement of tribal lands and money, it appears in fact primarily to give moral color to depredation of tribes."); Frickey, supra note 22, at 1139 n. 12 (1990) (citing Mancari and noting that "[i]t is more than a little ironic that the Americans who were here first have essentially the same equal protection guarantees as nonresident aliens"); cf. COHEN, supra note 41, at 171 ("In private law, a guardian is subject to rigid court control in the administration of the ward's affairs and property. In constitutional law the guardianship relation has generally been invoked as a reason for relaxing court control over the action of the 'guardian.'"). Many commentators have sought to eliminate the harmful aspects of the special relationship by suggesting that rational basis review should be limited to legislation that benefits Indians or furthers tribal self-government. See Goldberg-Ambrose, supra note 115, at 174-76; Clinton, supra note 23, at 1013-16; Johnson & Crystal, supra note 40, at 606. Such a position, of course, is premised upon a rejection of Supreme Court jurisprudence and thus is beyond the scope of this Article. It does bear mentioning, however, that the help/harm dichotomy might in some instances be difficult to apply and thus of limited usefulness. After all, earlier in this century limitations on Native Americans' access to alcohol were often enacted in an attempt to protect Native Americans, who were thought incapable of handling alcohol, and these restrictions were considered by many (including the Supreme Court) to be beneficial to Native Americans, see, e.g., United States v. Sandoval, 231 U.S. 28, 41-44 (1913) (cataloging statements in favor of limitations); yet today most would say that these restrictions harmed Native Americans. Moreover, such difficulties are by no means limited to legislation passed one hundred years ago. To pick an example that has more modern overtones, how should a court characterize a federal government program under which federal and tribal governments worked together to find, treat, and, if necessary, incarcerate pregnant Indian women who abused alcohol or other drugs? Furthermore, the complex task of distinguishing between harm and benefit is rendered more difficult by the fact that the goal of benefiting Indians might sometimes be at cross-purposes with the goal of furthering tribal self-government, leading to the difficult question of which should prevail. To take a hypothetical regulation from this age of devolution of government services to the state and local level, how should a court treat federal legislation under which (formerly) federal government benefits were distributed by states, except that tribes distributed funds to all their members? This would probably enhance the power and stability of tribal governments, but might be opposed by those who were distant from their tribal leadership. In particular, for many Native Americans who did not live on the lands of their tribe, it might come as a rude shock to find out that their tribe still claimed them as members and thus now had the exclusive power over their federal benefits.
321. The recent Native Hawaiian vote provides some guidance on this question. Seventy-three percent of those who returned ballots voted in favor of the creation of a Native Hawaiian government. See infra text accompanying note 254. The significance of this figure is mitigated by two factors, however. First, only 40% of those who received ballots sent them in (and, in light of the dispute over the number of Native Hawaiians, it is not even clear what percentage of Native Hawaiians received ballots in the first place). See supra note 54; infra text accompanying note 261. Second, it is not at all clear that voters understood the potential ramifications of their vote regarding the creation of a special relationship and the concomitant enhanced power of the federal government.
322. As will be discussed below, the possible requirement that a newly recognized tribe be the successor to a historical sovereign entity complicates the question whether a single tribe or a series of tribes would stand on stronger constitutional footing. See infra notes 284-87 and accompanying text. For purposes of simplicity, this Article will refer to the creation of a single Native Hawaiian tribe, though it should be 7 remembered that the creation of several tribes might also be possible.
323. 180 U.S. 261, 266 (1901).
324. See supra note 173.
325. The Hawaii statute that authorized this vote (codified as a note to the Hawaii Organic Act) provides in relevant part: The purpose of this Act is to acknowledge and recognize the unique status that the Native Hawaiian people bear to the State of Hawaii and to the United States and to facilitate the efforts of the Native Hawaiian people to determine self-governance of their own choosing. In the spirit of self-determination and by this Act, a Hawaiian sovereignty elections council is established to: (1) Hold a Native Hawaiian Vote in 1996 to determine the will of the Native Hawaiian people for self-governance of their own choosing; and (2) Based upon the Native Hawaiian Vote approved by a majority of ballots cast, provide for a fair and impartial process to resolve the issues relating to form, structure, and status of Hawaiian self-governance. Hawaii Organic Act § 2, 1993 Haw. Sess. Laws 359 (as amended by 1994 Haw. Sess. Laws 200 and 1996 Haw. Sess. Laws 140). The vote was originally planned for 1995 but was postponed because the Hawaiian government cut its funding. See Ragaza, supra note 173, at 48. In addition, the legislation providing for the vote originally referred to the creation of an "indigenous sovereign nation," but that was amended in 1996 to refer to "self-governance." See 1996 Haw. Sess. Laws 140; Rice v. Cayetano, Nos. Civ.96-00390 DAE, Civ.96-00616 DAE 1996 WL 562072, at *2 n.4 (D. Haw. Sept. 6, 1996). One other change of note was that the mandate required to authorize the Hawaiian Sovereignty Elections Council to proceed was changed from a majority of Native Hawaiians to a majority of votes cast. See 1996 Haw. Sess. Laws 140; Rice, 1996 WL 562072, at *2 n.4; see also infra note 261.
326. The voting guidelines adopted by the state legislature require that a person be "Hawaiian" to vote, and stated that a "Hawaiian" was "any descendant of the indigenous people inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands prior to 1778." See Rice, 1996 WL 562072, at *2.
327. See id. at *2.
328. See Walter Wright, Hawaiians Vole Yes, HONOLULU ADVERTISER, Sept. 12, 1996, at A-1.
329. See HAWAIIAN SOVEREIGNTY ELECTIONS COUNCIL, TO BUILD A NEW NATION (HO'OKÜKULU HE AUPUNI HOU) 6 (n.d.).
330. HAWAIIAN SOVEREIGNTY ELECTIONS COUNCIL, supra note 172, at 12. The report to the legislature further states: Some Hawaiian organizations have developed constitutions, position papers, and master plans for sovereignty or independence. In essence these organizations are political parties, each earnestly advancing their [sic] own platforms [sic]. These organizations are self-appointed. They have not received the consent of the Hawaiian people, as a whole, to be their government. . . . No one organization can presume to represent the Hawaiian people without the Hawaiian people's consent to be governed by that organization. No one organization can claim the assets and entitlements of the Hawaiian people without the consent of the Hawaiian people to be represented [by] them for that express purpose. Id. at 13.
331. See Wright, supra note 254, at A-2.
332. See Rice, 1996 WL 562072.
333. If the state were not involved, a referendum or other process leading toward the creation of an independent Native Hawaiian organization would, of course, raise no constitutional issues; it would stand on the same footing as any other private election to the governing board of a private entity. Moreover, as this Section has suggested, it would be an appropriate way for Native Hawaiians to organize themselves into a tribal entity. It should be noted, though, that similar constitutional problems surrounding OHA's electorate could not be solved so simply, as OHA itself is a governmental, rather than private, entity. Thus, even if there were no state funds used in organizing OHA's elections, the fact remains that the elections are for a unit of the government. It is not clear that anything turns on the form of OHA's elections, however, because OHA may be unconstitutional anyway. See supra notes 217, 242.
334. See Ka Lahui Hawai'i Rebuttal, supra note 173; Pat Omandam, Native Vote Opponents Rap Results, HONOLULU STAR-BULLETIN, Sept. 13, 1996, at A7.
335. See Ka Lahui Hawai'i Rebuttal, supra note 173; Pat Omandam, Native Vote Opponents Rap Results, HONOLULU STAR-BULLETIN, Sept. 13, 1996, at A7.
336. See Hawaiian Vote: A Signal for Caution, HONOLULU ADVERTISER, Sept. 12, 1996, at A12; RESULTS OF VOTES CAST, GENERAL ELECTION AND SPECIAL ELECTION FOR THE OFFICE OF HAWAIIAN AFFAIRS, NOVEMBER 8, 1994, at 395 (n.d.). Interestingly, the legislation on the Native Hawaiian vote originally provided that the sovereignty process would move forward if a majority of the "qualified voters" - that is, a majority of Native Hawaiian adults - approved of the proposition to create a Native Hawaiian government. Legislation passed in 1996 (after some Native Hawaiian groups had said they would boycott the vote) amended that threshold, changing "qualified voters" to "votes cast." See 1996 Haw. Sess. Laws. 140; Rice, 1996 WL 562072, at *2 n.4. The change proved to be significant: Over 70% of the votes cast favored the proposition, but they represented less than one-third of the qualified voters.
337. See Hawaiian Vote: A Signal for Caution, HONOLULU ADVERTISER, Sept. 12, 1996, at A12; RESULTS OF VOTES CAST, GENERAL ELECTION AND SPECIAL ELECTION FOR THE OFFICE OF HAWAIIAN AFFAIRS, NOVEMBER 8, 1994, at 395 (n.d.). Interestingly, the legislation on the Native Hawaiian vote originally provided that the sovereignty process would move forward if a majority of the "qualified voters" - that is, a majority of Native Hawaiian adults - approved of the proposition to create a Native Hawaiian government. Legislation passed in 1996 (after some Native Hawaiian groups had said they would boycott the vote) amended that threshold, changing "qualified voters" to "votes cast." See 1996 Haw. Sess. Laws. 140; Rice, 1996 WL 562072, at *2 n.4. The change proved to be significant: Over 70% of the votes cast favored the proposition, but they represented less than one-third of the qualified voters.
338. The obvious incentive for the creation of a Native Hawaiian tribe is mitigating the danger that programs benefiting Native Hawaiians will be declared unconstitutional. This may not prove to be an adequate incentive, however; a Native Hawaiian would be joining only to avoid a possible danger, the contours of which may not be clear to the average Native Hawaiian, rather than to gain new benefits. The lack of affirmative incentives to join a Native Hawaiian tribe might be addressed in part by the promise of congressional action to give significant benefits to such a tribe once it was established. That is, organizers of a tribe might have an easier time persuading others to join if they could promise that, once established, the Native Hawaiian tribe would enjoy the full panoply of benefits available to American Indian tribes. This possibility undercuts one of the advantages identified above, however: Its success would depend on the passage of a legislative scheme to confer new benefits on Native Hawaiians (and on Native Hawaiians' belief in the promise of such congressional action), and thus would mitigate Native Hawaiians' sense of control over the process.
339. 180 U.S. 261, 266 (1901).
340. The State of Hawaii also could set up a system whereby it would recognize Native Hawaiian groups that met certain criteria. It seems unlikely, though, that the Supreme Court would treat such state recognition as creating a special relationship for constitutional purposes such that benefits for these tribes would be subject to rational basis review. In Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 501 (1979), the Supreme Court stated that the special relationship does not include states. See supra note 217. In fact, in several cases the Court has stated that the federal government has exclusive authority to deal with Indian tribes. See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764 (1985); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832); see also United States v. Mazurie, 419 U.S. 544, 554 n.11 (1975) (noting "Congress' exclusive constitutional authority to deal with Indian tribes"); Bryan v. Itasca County, 426 U.S. 373, 376 n.2 (1976) (discussing "plenary and exclusive power of the Federal Government to deal with Indian tribes"). Yakima Nation noted the possibility of the federal government authorizing state actions with respect to tribes (including, perhaps, recognition), but that, of course, would require Congress's involvement. See 439 U.S. at 501.
341. It could be argued that such a statute would run afoul of Adarand, on the theory that, in attempting to foster the creation of a Native Hawaiian entity, the federal government would be singling out a class - Native Hawaiians - who were not (yet) in tribal organizations. It seems unlikely, however, that this would pose an insuperable hurdle. If the wording of the statute made clear that it had no effect upon Native Hawaiians, defined by ancestry, but instead merely provided for recognition of an Indian tribe (in this case, a Native Hawaiian tribe) that met certain qualifications, a court would probably treat the statute differently from those directed at Native Hawaiians, defined racially, with no suggestion of tribal affiliation; in fact, a court might treat the statute as an element of a resulting special relationship. That the statute would likely contain some racial classification (e.g., descendance from pre-1778 inhabitants) probably would not disqualify it from rational basis review, any more than the BIA hiring preference's effective limitation to those with Indian blood did in Mancari. It also bears mentioning that this is where the history of the United States's actions vis-à-vis the Hawaiian government and the terminated tribe analogy, see supra Subsection III.D.2, might become relevant. The federal government could plausibly articulate a compelling interest in assisting the creation (or, more properly, the "re-creation") of a Native Hawaiian government, in light of its contribution to the death of the government that had once constituted an indigenous political structure presiding exclusively over Native Hawaiians; and providing for the re-creation of an indigenous political structure is arguably narrowly tailored to serve that compelling interest. Moreover, there have been cases - most notably, involving the Menominee Tribe - of federal government support for elections pursuant to which terminated tribes were rerecognized. See 25 U.S.C. §§ 903b-c (1994). The Menominee Tribe's situation was different, because it had retained some political organization after its relationship with the government was terminated (and the statute on its elections was never subject to an equal protection challenge). Still, this does constitute a historical example of federal involvement in the re-creation of a recognized tribe. As was noted above, though, the success of this argument is complicated by the fact that, by the time the United States Minister landed troops and helped to overthrow the government in 1893, it had become a multiethnic oligarchical polity. See supra text accompanying notes 49-55, 196-98.
342. 43 U.S.C. §§ 1601-29e (1994).
343. The original 1934 IRA included Eskimos and other Alaskan aboriginal groups among those who could create governmental organizations; the 1936 amendments to the IRA also permitted them to register as federally chartered entities. See Act of May 1, 1936, ch. 254, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a). Thus, as of 1936, the IRA provided that Indian groups (including Alaska Natives but not Native Hawaiians) that met certain statutory requirements could adopt constitutions for carrying out governmental activities and could incorporate by federal charter for business purposes. See Act of June 18, 1934, ch. 576, §§ 16-17, 48 Stat. 987-88 (codified as amended at 25 U.S.C. §§ 476-77). Many traditional Alaska Native villages responded by registering as federally chartered villages under the IRA. See Smith & Kancewick, supra note 152, at 493-94.
344. See 43 U.S.C. §§ 1606-07; Martha Hirschfield, Note, The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form, 101 YALE L.J. 1331, 1333-37 (1992); John F. Walsh, Note, Settling the Alaska Native Claims Settlement Act, 38 STAN. L. REV. 227, 248-53 (1985); see also Arthur Lazarus, Jr. & W. Richard West, Jr., The Alaska Native Claims Settlement Act: A Flawed Victory, in AMERICAN INDIANS AND THE LAW 132, 134-35 (Lawrence Rosen ed., 1976).
345. See 43 U.S.C. §§ 1606-07; Martha Hirschfield, Note, The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form, 101 YALE L.J. 1331, 1333-37 (1992); John F. Walsh, Note, Settling the Alaska Native Claims Settlement Act, 38 STAN. L. REV. 227, 248-53 (1985); see also Arthur Lazarus, Jr. & W. Richard West, Jr., The Alaska Native Claims Settlement Act: A Flawed Victory, in AMERICAN INDIANS AND THE LAW 132, 134-35 (Lawrence Rosen ed., 1976).
346. See 43 U.S.C. §§ 1606-07; Martha Hirschfield, Note, The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form, 101 YALE L.J. 1331, 1333-37 (1992); John F. Walsh, Note, Settling the Alaska Native Claims Settlement Act, 38 STAN. L. REV. 227, 248-53 (1985); see also Arthur Lazarus, Jr. & W. Richard West, Jr., The Alaska Native Claims Settlement Act: A Flawed Victory, in AMERICAN INDIANS AND THE LAW 132, 134-35 (Lawrence Rosen ed., 1976).
347. See, e.g., 25 U.S.C. § 450b(e) (self-determination); id. § 1603(d) (health care); id. § 1903(3) (child welfare); id. § 2026(14) (BIA programs); id. § 2403(3) (substance abuse programs); id. § 2511(2) (tribal schools); id. § 3501(1) (energy resources); id. § 3703(10) (agricultural resources); id. § 4001(2) (trust fund management); 26 U.S.C. § 45A(c)(6) (1994) (employment tax credits); 33 U.S.C. § 2701(15) (1994) (oil pollution compensation); 38 U.S.C. § 3115(c) (1994) (vocational rehabilitation); 42 U.S.C. § 628(c)(2) (1994) (child welfare services); id. § 3002(6) (older Americans programs).
348. 43 U.S.C. § 1606(a).
349. It may seem tempting to avoid the time and effort that these two methods entail by means of a third option: Congress (or perhaps even the Department of Interior) simply recognizing Native Hawaiians as a tribe, without having to rely on any elaborate legislative schemes or on any actions by Native Hawaiians. Such recognition would bring Native Hawaiians closer to convincing a court that they were subject to the special relationship; the lack of recognition is one of the obstacles to Native Hawaiians' status as an Indian tribe, and this proposal would remove it. The problem, however, is that there are constitutional limits to congressional authority; the Supreme Court has stated that it will give some deference to a federal decision to recognize an Indian tribe but will make an independent judgment as to whether federal recognition was arbitrary or irrational. See supra notes 213-15 and accompanying text. It seems likely that federal recognition of Native Hawaiians as a whole would fail that test; as was noted above, all Native Hawaiians have not assented to the governance of a tribal organization. See supra notes 172-73 and accompanying text. Part of the problem for the Native Hawaiian community, in fact, is that many Native Hawaiians left their land during the nineteenth century and became ordinary laborers. Their real connection, as the definitions used in relevant statutes reveal, is that they share a common ancestry. See OFFICE OF HAWAIIAN AFFAIRS, supra note 54, at 9 (noting that Native Hawaiians "'are highly differentiated in religion, education, occupation, politics, and even in their claims to Hawaiian identity'" (quoting Kanahele, supra note 171, at 21)); id. at 24 (describing Native Hawaiian population as, inter alia, "racially mixed, gender-balanced, urbanite, [and] unattached"). Any federal recognition of the entire community of Native Hawaiians would be similar to a federal recognition of all people of American Indian descent: It would eviscerate Mancari's distinction between racial and political classifications; it would suggest that Mancari's limitation can be circumvented simply by defining a tribe as being composed of all members, and only those members, of a racial group. It seems unlikely that a court would accept such a transparent effort to transform a racial classification into a tribal one.
350. Montoya v. United States, 180 U.S. 261, 266 (1901).
351. Cf. 25 C.FR. § 83.7(c)(1)(iii) (1996) (noting significance of widespread involvement in political processes by most of group's members).
352. See id. § 83.7(b) (requiring that "[a] predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present"); id. § 83.7(c) (requiring that "[t]he petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present"); see also, e.g., United States v. Washington, 641 F.2d 1368, 1372 (9th Cir. 1981) ("[T]he group must have maintained an organized tribal structure."). As was noted above, the BIA's regulations determine whether the federal government will recognize a group, not whether the government has the constitutional authority to do so; accordingly, the BIA's inclusion of these requirements does not necessarily indicate that they are constitutionally mandated. See supra note 160 and accompanying text.
353. See supra text accompanying notes 172-73; see also text accompanying note 193.
354. If there is no requirement of historical continuity, then the structure and implementation of the HHCA contain a bitter irony for Native Hawaiians: Had the HHCA been drafted differently - specifically, in a manner that encouraged the formation of a Native Hawaiian tribe or tribes - the concerns raised in this Article might have been mitigated (if not avoided entirely). Congress could, for instance, have decided to foster the creation of a Native Hawaiian tribe by legislating that the lands at issue would be given outright to a tribal organization that met Montoya's criteria for status as a tribe. Native Hawaiians could then have created the tribe, and it could have served the role in their lives that tribes serve on reservations in the United States. Such an arrangement would have had the effect of creating a Native Hawaiian tribe, which
355. 180 U.S. 261, 266 (1901). The facts of Montoya appear to give some support to the proposition that a long history is not necessary, although the issue is not free from doubt. In Montoya, the question was whether a recently formed group of American Indians composed of members of several tribes (primarily the Chiricahua Apache Indians) was a "'band, tribe or nation in amity with the United States'" for purposes of a statute allowing for property claims against the United States. Id. at 264 (quoting Act of Mar. 3, 1891, ch. 538, 26 Stat. 851, 851-52). The Court found that the group in question was, at and long before the occurrence complained of, "known and recognized as a band, separate and distinct in its organization and action from the several tribes, then at peace, to which its members had formerly belonged, and that the band as thus constituted was not in amity with the United States." Id. at 269 (citation omitted). The Court found that the group constituted a "band" of Indians and stated that it had been a band "long before the occurrence complained of," id. at 269, even though the findings of fact indicated that the "band" came together in 1876 and took the property at issue in 1880, see id. at 261 n.2, 262 n.3. Admittedly, all of the members of this band had been members of full-fledged Indian tribes beforehand, so the new band represented a reconstitution of the existing tribes, rather than the creation of a new tribe with members that had never before been subject to the special relationship and whose only connection to a tribe was through their ancestors. It is not clear that their prior membership in a different tribe played any role in the Court's decision, however, and the fact remains that a new group coalesced in 1876 and, by 1880, was considered to be a band of Indians.
356. In this regard, it should be noted that some of the groups currently regarded as tribes are not the successors to previous tribes. In some cases the federal government consolidated several tribes into one newly created tribe, and in other cases it split a single tribe into several tribes. See COHEN, supra note 2, at 5-6. More importantly, the federal government on several occasions aggregated loose bands of American Indians into tribes, even though no previous tribal organization existed. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 664 n.5 (1979) ("[T]He territorial officials who negotiated the treaties [at issue] on behalf of the United States took the initiative in aggregating certain loose bands into designated tribes and even appointed many of the chiefs who signed the treaties,"); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 192 (1978) (noting that United States established relations with tribe that was aggregation of loosely related villages); see also COHEN, supra note 2, at 6. This has also occurred more recently, as many statutory definitions of "Indian tribe" include not only Alaska Native villages (which, though often incorporated after 1936, generally had long been functioning as governing units) but also Alaska Native Regional Corporations and Village Corporations, all of which were created in response to ANCSA. See statutes cited supra note 269. On Alaska Native villages, see Smith & Kancewick, supra note 152, at 493, 496-98. Cf. Paul A. Matteoni, Comment, Alaska Native Indian Villages: The Question of Sovereign Rights, 28 SANTA CLARA L. REV. 875, 894 (1988) (asserting that "[h]istorical governmental powers had not been maintained before the creation of the[] modern village governments" under IRA). Finally, also relevant is 25 U.S.C. § 476(f) (1994), which prohibits distinctions between tribes that were created through combination or splitting and those that have a continued existence stretching back through the nineteenth century. Admittedly, this history is of limited importance; it may merely indicate that the federal government has inappropriately treated as tribes some groups that cannot meet the constitutional minima for status as a tribe. See supra note 206. Moreover, even if these groups would not be vulnerable to challenge today because they have now existed for 60 years, that precedent would help Native Hawaiians only if their organizations could exist for 60 years before being challenged, and there is of course no guarantee of such a grace period.
357. United States v. Washington, 641 F.2d 1368, 1372-73 (9th Cir. 1981).
358. Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 557 (9th Cir. 1991).
359. Native Village of Tyonek v. Puckett, 957 F.2d 631, 635 (9th Cir. 1992) (quoting Native Village of Venetie, 944 F.2d at 559); see also Pit River Home & Agric. Coop. Ass'n v. United States, 30 F.3d 1088, 1096 (9th Cir. 1994) (stating that "group claiming tribal status must show they are 'modern-day successors' to a historical sovereign entity that exercised political and social authority") (quoting Native Village of Venetie, 944 F.2d at 559).
360. In addition, it is not clear that any significance attaches to the form of the relevant government. As the Ninth Circuit said in a case involving Alaska Native Villages: To the extent that Alaska's natives formed bodies politic to govern domestic relations, to punish wrongdoers, and otherwise to provide for the general welfare, we perceive no reason why they, too, should not be recognized as having been sovereign entities. If the native villages of Venetie and Fort Yukon are the modern-day successors to sovereign historical bands of natives, the villages are to be afforded the same rights and responsibilities as are sovereign bands of native Americans in the continental United States. Native Village of Venetie, 944 F.2d at 558-59.
361. Id. at 559 n. 13.
362. See 1 KUYKENDALL, supra note 45, at 129, 229-30; 1 STATUTE LAWS OF HIS MAJESTY KAMEHAMEHA III, ch. V, art. I, §§ 3, 10-14 (1846).
363. See 1 KUYKENDALL, supra note 45, at 129, 229-30; 1 STATUTE LAWS OF HIS MAJESTY KAMEHAMEHA III, ch. V, art. I, §§ 3, 10-14 (1846).
364. See 1 KUYKENDALL, supra note 45, at 25-51.
365. Kuykendall identified four kingdoms as of 1778: one over the island of Hawaii and the Hana district of east Maui; a second over Maui (except the Hana district) and its three dependent islands; a third over Oahu; and a fourth over Kauai and Nihau. See id. at 30. Of course, it is possible (perhaps probable) that multiple tribes would not break cleanly along geographical lines, and instead would simply be several coexisting groups (not unlike the current cluster of Native Hawaiian groups). If a series of tribes were organized on this basis, they would be hard pressed to claim derivation from the pre-1778 kingdoms; instead, they would probably have to claim derivation from the post-1810 Hawaiian monarchy. Under these circumstances, however, it would be harder for multiple tribes to meet any requirement of a historical connection than it would for one large tribe of all Native Hawaiians. If there were one tribe, that group could plausibly assert that it had assumed all the powers and functions of the former monarchy, except insofar as those powers and functions were now exercised by the United States and the state government. If there were several tribes the various groups would further divide their limited power and functions among themselves, and thus could not make this claim. These tribes would be forced to argue that, as a collectivity, they were the successors to the monarchy, and that their decision to split up into several tribes did not affect their successorship. It is not clear that such an argument could overcome the fact that the tribes would be attempting to fracture the Hawaiian kingdom into subparts that the kingdom never had.
366. Inclusion of some Westerners would not necessarily defeat a claim of tribal status, as the Court has never directly addressed the question whether the presence of a few Westerners in a tribe alters its status. See supra note 144. In this regard, it does bear mention that some Indian tribes included Westerners (who often were taken as captives, but sometimes stayed with the tribe as members). See Axtell, supra note 144.
367. These statutory changes would be necessary because, as was discussed above, see supra notes 154-55 and accompanying text, the mere existence of a tribe would likely be insufficient if the statutory scheme did not depend on tribal membership. That, presumably, is why the Court did not suggest in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), or Fullilove v. Klutznick, 448 U.S. 448 (1980), that the relevant program's inclusion of American Indians, defined racially, would be subject to a different level of scrutiny; though all the American Indian beneficiaries may have been members of tribes, the programs giving them benefits did not require tribal membership and were instead based on ethnicity. It might be contended that because all Native Hawaiians would be members of the Native Hawaiian tribe (or tribes), the Native Hawaiian situation would be different and analogous to a statute simply referring to "the Navajo." See supra note 154. The analogy fails, however, because the obvious intent of the latter statute would be to benefit the members of the Navajo tribe (and otherwise, it would be constitutionally problematic); the statutes benefiting Native Hawaiians, however, were not enacted with reference to any tribe. Moreover, because it is overwhelmingly likely that some Native Hawaiians would not choose to join the Native Hawaiian tribe (or tribes), the current statutory definitions of "Native Hawaiian" would not be coextensive with the membership of the Native Hawaiian tribe (or tribes).
368. The obvious candidate is the HHCA, which was not merely federally authorized but was originally passed as federal legislation and imposed upon Hawaii as a condition of statehood. See supra note 64. The existence and scope of the federal authorization of the HHCA is not entirely free from doubt, however. See supra note 242.
369. 439 U.S. 463 (1979).
370. See supra note 217.
371. It is interesting to compare the level of authorization that courts, in pre-Adarand days, required for application of Metro Broadcasting (rather than Croson) to a program with the level of authorization they require for application of Mancari's, analysis to state programs for Indian tribes. Though Croson did not address the issue directly, some lower courts after Croson found that state or local programs were authorized by federal law (and thus reviewable under Metro Broadcasting's, then-applicable intermediate scrutiny); but courts construed congressional authorization narrowly and clarified that state programs with substantive provisions that were not found in the federal statute would be subject to Croson's strict scrutiny. See, e.g., Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 424-25 (7th Cir. 1991); Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 57-58 (2d Cir. 1992); Tennessee Asphalt Co. v. Farris, 942 F.2d 969, 975 (6th Cir. 1991); Ellis v. Skinner, 961 F.2d 912, 915-16 (10th Cir. 1992); see also Croson, 488 U.S. at 491 (plurality opinion) (intimating that Congress could authorize states and municipalities to institute programs with preferences that they could not enact on their own account). With respect to the application of the special relationship to state laws, the main case is Yakima Nation itself, in which the Court found that a state legislated pursuant to the special relationship where the enactment at issue was explicitly authorized by a federal statute. Lower courts, though, in applying Yakima Nation, have gone beyond the four corners of the decision and have interpreted the requirement of federal authorization liberally; it is not clear that these courts would limit the authorization to cases in which the state statute's provisions were wholly within the authorizing federal scheme. See Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1218-19 (5th Cir. 1991) (concluding that federal law implicitly authorized state law, even though federal law did not explicitly authorize any state laws, because state law was promulgated after federal law and mirrored federal law); Livingston v. Ewing, 601 F.2d 1110 (10th Cir. 1979); St. Paul Intertribal Hous. Bd. v. Reynolds, 564 F. Supp. 1408 (D. Minn. 1983); Krueth v. Independent Sch. Dist. No. 38, 496 N.W.2d 829 (Minn. Ct. App. 1993). Determining the exact level of authorization that current case law requires for application of the special relationship to state programs, however, is complicated by the fact that these are the only four post-Yakima cases in which a court addressed the application of the special relationship to a state action, and, of the four, two misconstrue Yakima Nation and a third ignores it. See St. Paul, 564 F. Supp. at 1412 (relying in part on state statute benefiting members of Indian tribes because "[s]tate action for the benefit of Indians can also fall under the trust doctrine and therefore be protected from challenge under the equal protection clause or civil rights statutes," and failing to note any requirement of federal authorization); Krueth, 496 N.W.2d at 836-37 (simply stating that Mancari's special relationship also applied to state action and quoting statement immediately above from St. Paul); see also Livingston, 601 F.2d at 1114-15 (relying on provision of Civil Rights Act of 1964 that excluded preferences for Indians from scope of Act in rejecting equal protection challenge to local ordinance permitting only American Indians to sell goods in certain areas; failing to address question whether federal statute constituted authorization for state statute under terms of Yakima Nation (and, in fact, failing to cite Yakima Nation)).
372. In light of Adarand and Croson, we know that strict scrutiny applies to state (or, for that matter federal) laws containing racial classifications. The Court has never squarely stated, however, what level of scrutiny applies to state laws containing tribal classifications. Yakima Nation indicates that it would be heightened scrutiny of some sort, see supra note 217, and the logic of Yakima Nation and Croson suggests that strict scrutiny would be the applicable form of heightened scrutiny: If states have no special relationship with Indian tribes, then state legislation for Indian tribes is presumably analogous to state legislation for any other group composed entirely of members of one ethnicity; moreover, there is no particular reason to assume that the Supreme Court would apply intermediate scrutiny to a state classification of tribes. Nonetheless, the level of scrutiny for state classifications of tribal Indians is not settled, and there is some possibility that the Court would fashion a level of review less rigorous than strict scrutiny. Accordingly, the transformation of Native Hawaiians' federal status from that of a racial group to that of an Indian tribe could conceivably affect the level of scrutiny for state enactments benefiting members of the Native Hawaiian tribe (or tribes).
373. Congress could enact such a change, or perhaps, in light of Mancari's reliance on a BIA regulation, the BIA could make the change on its own, even absent legislation so providing. Cf. supra note 38.