No. 98-818
In the Supreme Court of the United States
HAROLD F. RICE, PETITIONER
v.
BENJAMIN J. CAYETANO,
GOVERNOR OF HAWAII
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
BARBARA D. UNDERWOOD
EDWIN S. KNEEDLER
Deputy Solicitors General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
ELIZABETH ANN PETERSON
JARED A. GOLDSTEIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Hawaii limits the right to vote for the trustees of the Office of Hawaiian
Affairs to the "descendant[s] of the aboriginal peoples inhabiting
the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian
Islands in 1778, and which peoples thereafter have continued to reside in
Hawaii." Haw. Const. Art. XII, § 5; Haw. Rev. Stat. § 10-2
(1993). The question presented is whether that voting requirement discriminates
on the basis of race in violation of the Fourteenth or Fifteenth Amendments
to the Constitution.
In the Supreme Court of the United States
No. 98-818
HAROLD F. RICE, PETITIONER
v.
BENJAMIN J. CAYETANO,
GOVERNOR OF HAWAII
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
The United States has a special responsibility for the welfare of the Native
peoples of the United States, including Native Hawaiians. Pursuant to that
responsibility, Congress has enacted many statutes for the benefit of Native
Hawaiians. Congress has also delegated broad authority to administer a portion
of the federal trust responsibility to the State of Hawaii, which enacted
the voting provision at issue here in carrying out that responsibility.
The United States therefore has a direct interest in the resolution of the
question presented in this case.
STATEMENT
1. a. The Hawaiian Islands were originally settled by Polynesians from the
Western Pacific. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 232 (1984).
In 1778, the first documented encounter between Native Hawaiians and Europeans
occurred when Captain James Cook sailed into Hawaiian waters. R. Tabrah,
Hawaii A History 11 (1st ed. 1984). The native people Cook encountered "lived
in a highly organized, self-sufficient, subsistent social system based on
communal land tenure with a sophisticated language, culture, and religion."
Pub. L. No. 103-150, 107 Stat. 1510.1 Even though indigenous Hawaiians were
all one people with a common language, ancestry, and religion, at that point
the eight islands were governed by four independent chiefdoms. Tabrah 13-14.
Cook and his crew referred to the Hawaiian people as "Indians."
See G. Daws, Shoal of Time 2 (1968).
In 1810, Kamehameha I united the islands into the Kingdom of Hawaii and
became its first King. 107 Stat. 1510. Between 1826 and 1893, the United
States recognized the Kingdom as a sovereign nation and signed several treaties
with it. Ibid. During that same period, Americans gained increasing influence
over the Kingdom's economy, acquiring control of three-fourths of Hawaii's
commerce and most of its available land. S. Rep. No. 681, 55th Cong., 2d
Sess. 78 (1898). Americans also began to dominate the Kingdom's political
affairs. S. Doc. No. 16, 55th Cong., 3d Sess. 3 (1898). The social and economic
changes in Hawaii had a "devastating" effect on the Native Hawaiian
population and on their "health and well-being." 107 Stat. 1512.
Foreigners brought new diseases to Hawaii, and the Native Hawaiian population
plummeted. Tabrah 42.
In 1893, Queen Lili'uokalani threatened to reestablish Native Hawaiian control
over governmental affairs. Tabrah 99. Fearing a loss of power, a group representing
American commercial interests overthrew the monarchy and established a provisional
government. 107 Stat. 1510. The overthrow was aided by the United States
Minister to Hawaii, who caused armed naval forces to invade Hawaii. Ibid.
The United States Minister immediately recognized the provisional government,
which sought annexation to the United States. Ibid.
President Cleveland refused to recognize the legitimacy of the provisional
government and called for restoration of the monarchy. 107 Stat. 1511. Congress
enacted a joint resolution annexing Hawaii, however, and in 1898 President
McKinley signed the resolution. Id. at 1512. At the time of annexation,
the provisional government ceded 1,800,000 acres of crown, government, and
public lands to the United States. Ibid. In the Hawaiian Organic Act, ch.
339, § 91, 31 Stat. 159, Congress established the Territory of Hawaii,
placed the ceded lands under its control, and directed that proceeds from
the lands be used for the benefit of the inhabitants of Hawaii.
b. The condition of Native Hawaiians, however, continued to deteriorate,
and in 1920 territorial representatives sought assistance from Congress.
Noting that Hawaiian people had been "frozen out of their lands and
driven into the cities," and that "Hawaiian people are dying,"
the representatives recommended allotting land to the Hawaiians so that
they could reestablish their traditional way of life. H.R. Rep. No. 839,
66th Cong., 2d Sess. 4 (1920). The Secretary of the Interior echoed that
recommendation, informing Congress that Native Hawaiians are "our wards
* * * for whom in a sense we are trustees," that they "are falling
off rapidly in numbers" and that "many of them are in poverty."
Ibid. Those recommendations led to the enactment of the Hawaiian Homes Commission
Act, 1920 (HHCA), ch. 42, 42 Stat. 108, which designated 200,000 acres of
lands for homesteading by "Native Hawaiians." Congress found constitutional
precedent for the HHCA in previous enactments granting Indians special privileges
in using public lands. H.R. Rep. No. 839, supra, at 11. In 1938, Congress
again exercised its trust responsibility by granting Native Hawaiians exclusive
fishing rights in the Hawaii National Park. Act of June 20, 1938, ch. 530,
§ 3(a), 52 Stat. 784.
In 1959, Hawaii was admitted into the Union. In the Hawaii Admission Act,
Pub. L. No. 86-3, 73 Stat. 4, Congress required Hawaii to adopt the HHCA
as part of the state constitution and transferred authority to the State
to administer the HHCA lands. § 4, 73 Stat. 5. Congress also placed
an additional 1.2 million acres of lands acquired through annexation into
a trust to be managed by the State for one or more of five specified purposes,
including "the betterment of the conditions of native Hawaiians."
§ 5(f), 73 Stat. 6.
Since Hawaii's admission into the Union, Congress has continued to accept
responsibility for the welfare of Native Hawaiians. Congress has established
special Native Hawaiian programs in the areas of health care, education,
employment, and loans.2 It has enacted statutes to preserve Native Hawaiian
culture, language, and historical sites.3 And, by classifying Native Hawaiians
as "Native Americans" under numerous federal statutes, Congress
has extended to Native Hawaiians many of "the same rights and privileges
accorded to American Indian, Alaska Native, Eskimo, and Aleut communities."
42 U.S.C. 11701(2) and (19).4 Those enactments reflect Congress's view that
"[t]he authority of the Congress under the United States Constitution
to legislate in matters affecting the aboriginal or indigenous peoples of
the United States includes the authority to legislate in matters affecting
the native peoples of * * * Hawaii." 42 U.S.C. 11701(17). They are
also premised on congressional findings that the conditions of Native Hawaiians
in such areas as health and education continue to lag seriously behind those
of non-Natives. 42 U.S.C. 11701(22); 20 U.S.C. 7902(17).
In 1993, Congress enacted a Joint Resolution to acknowledge the 100th anniversary
of the overthrow of the Kingdom of Hawaii and to offer an apology to Native
Hawaiians. 107 Stat. 1510. In that Joint Resolution, Congress acknowledged
that the overthrow of the Kingdom of Hawaii was "illegal," "resulted
in the suppression of the inherent sovereignty of the Native Hawaiian people,"
and deprived Native Hawaiians of their rights to "self-determination,"
id. at 1513; that "the indigenous Hawaiian people never directly relinquished
their claims to their inherent sovereignty as a people or over their national
lands to the United States," id. at 1512; that the provisional government
ceded lands to the United States "without the consent of or compensation
to the Native Hawaiian people of Hawaii or their sovereign government,"
ibid.; and that "the Native Hawaiian people are determined to preserve,
develop and transmit to future generations their ancestral territory, and
their cultural identity in accordance with their own spiritual and traditional
beliefs, customs, practices, language, and social institutions," id.
at 1512-1513. In light of those findings, Congress "express[ed] its
commitment to acknowledge the ramifications of the overthrow of the Kingdom
of Hawaii, in order to provide a proper foundation for reconciliation between
the United States and the Native Hawaiian people." Id. at 1513. In
other recent statutes, Congress has recognized Native Hawaiians as "a
distinct and unique indigenous people with a historical continuity to the
original inhabitants of the Hawaiian archipelago," 42 U.S.C. 11701(1);
20 U.S.C. 7902(1), with whom the United States has a "special"
"trust" relationship, 42 U.S.C. 11701(15), (16), (18), and (20);
20 U.S.C. 7902(8), (10), (11), (13), and (14).
Early federal statutes, such as the HHCA, defined "Native Hawaiian"
as "any descendant of not less than one-half part of the blood of the
races inhabiting the Hawaiian Islands previous to 1778." HHCA §
201(a)(7), 42 Stat. 108. All federal statutes enacted since 1974, however,
have defined "Native Hawaiian" as any descendant of the aboriginal
people of the Hawaiian Islands. See, e.g., Native American Programs Act
of 1974, 42 U.S.C. 2992c; 107 Stat. 1513; Native Hawaiian Education Act,
20 U.S.C. 7912(1).
c. In 1978, Hawaii amended its Constitution to establish the Office of Hawaiian
Affairs (OHA). Haw. Const. Art. XII, § 5. OHA is the principal public
agency responsible for the administration of programs relating to Native
Hawaiians and Hawaiians. Haw. Rev. Stat. § 10-3 (1993). "Native
Hawaiian" is defined as "any descendant of not less than one-half
part of the races inhabiting the Hawaiian Islands previous to 1778, as defined
by the [HHCA]." Id. § 10-2. "Hawaiian" is defined as
"any descendant of the aboriginal peoples inhabiting the Hawaiian Islands
which exercised sovereignty and subsisted in the Hawaiian Islands in 1778,
and which peoples thereafter have continued to reside in Hawaii." Ibid.
The latter definition was added to bring state law "in line with the
current policy of the federal government to extend benefits for Hawaiians
to all Hawaiians regardless of blood quantum." J.A. 46.
OHA administers two public trusts. The first consists of 20% of the proceeds
from the public lands held in trust by the State under Section 5(f) of the
Admission Act. That fund is administered for the benefit of "Native
Hawaiians." Haw. Rev. Stat. § 10-13.5 (1993). The second trust
consists of money appropriated by the state legislature and is administered
for the benefit of "Hawaiians." Pet. App. 6a. OHA also administers
federal funds made available to it for Native Hawaiians or Hawaiians. Haw.
Rev. Stat. § 10-6(a)(8) (1993). The Hawaii Constitution establishes
that OHA shall be managed by a board of trustees, who shall be "Hawaiians"
and who shall be elected by "Hawaiians." Haw. Const. Art. XII,
§ 5.
Congress has recognized OHA's role in administering programs for Native
Hawaiians, finding that OHA "serves and represents the interests of
Native Hawaiians," 16 U.S.C. 470w(18), that OHA "has as a primary
and stated purpose the provision of services to Native Hawaiians,"
ibid., and that OHA has "expertise in Native Hawaiian affairs,"
20 U.S.C. 80q-11(a)(2). See also 25 U.S.C. 3001(11). Congress has also made
OHA eligible to administer federal programs on behalf of Native Hawaiians.
20 U.S.C. 4441(c)(2)(B), 7904(b)(3) and (f); 42 U.S.C. 2991b-1(a), 11711(7)(A)(ii).
Congress has been fully aware that OHA's trustees are elected by indigenous
Hawaiians. See S. Rep. No. 580, 100th Cong., 2d Sess. 32 (1988) (concluding
that the election of the OHA trustees by Native Hawaiians represents "a
rational means of effectuating the state's obligations under the trust relationship
to Native Hawaiians"); S. Rep. No. 140, 100th Cong., 1st Sess. 28 (1987)
(same).
2. In March 1996, petitioner applied to vote in the election for the OHA
Board of Trustees. Pet. App. 20a-21a. That application was denied on the
ground that petitioner is not an indigenous "Hawaiian." Id. at
21a. Petitioner filed suit against the Governor of Hawaii (respondent),
contending that the denial of his application to vote was based on a racial
classification and therefore violated the Fourteenth and Fifteenth Amendments
to the United States Constitution. Id. at 21a, 23a.
The district court granted respondent's motion for summary judgment. Pet.
App. 19a-43a. Relying on Morton v. Mancari, 417 U.S. 535 (1974), the district
court concluded that the voting restriction was based not on race but rather
on the status of Native Hawaiians as an indigenous people who have a guardian-ward
relationship with the United States and the State of Hawaii. Pet. App. 29a-35a.
Applying rational basis scrutiny, the court upheld the voting restriction
as a rational means of furthering the State's obligation under federal law
to act for the betterment of Native Hawaiians. Id. at 35a-37a.
3. The court of appeals affirmed. Pet. App. 1a-18a. Noting that petitioner
had not challenged the classification that underlies the trust and OHA,
the court concluded that "we must accept the trusts and their administrative
structure as we find them, and assume that both are lawful." Id. at
9a. In the court's view, it then followed that "the state may rationally
conclude that Hawaiians, being the group to whom trust obligations run and
to whom OHA trustees owe a duty of loyalty, should be the group to decide
who the trustees ought to be." Id. at 9a-10a. The court stated the
OHA voting law appeared to contain a racial classification on its face.
Id. at 11a, 14a. The court ultimately concluded, however, that, given the
nature of petitioner's challenge, and this Court's decision in Mancari,
"the voting restriction is not primarily racial, but legal or political."
Id. at 10a. The court therefore concluded that the voting qualification
does not violate the Fourteenth or Fifteenth Amendments. Ibid.
SUMMARY OF ARGUMENT
A. The classification in the OHA voting law has its source in federal law
and therefore implicates Congress's plenary power to enact legislation on
behalf of indigenous people with whom it has established a trust responsibility.
Congress has broad power to identify indigenous groups falling within its
Indian affairs power, and legislation on behalf of any such group is not
to be viewed as discrimination based on race, as long it is rationally tied
to the fulfillment of the United States' unique trust obligations.
B. Congress has identified Native Hawaiians as a distinct indigenous group
within the scope of its Indian affairs power, and has enacted dozens of
statutes on their behalf pursuant to its recognized trust responsibility.
Congress's determination that Native Hawaiians constitute a distinct indigenous
group for whom it may enact special legislation is entirely rational. Native
Hawaiians have a cultural, historic, and land-based link to the indigenous
people who exercised sovereignty over the Hawaiian Islands, and that group
has never relinquished its claim to its sovereignty or its sovereign lands.
Petitioner seeks to derive from the Indian Commerce Clause's reference to
"Tribes" a requirement that Congress may only take action on behalf
of indigenous groups with present-day tribal governments. To the framers
of the Constitution, however, an Indian tribe was simply a distinct group
of indigenous people set apart by their common circumstances, a definition
that Native Hawaiians satisfied in 1778 and satisfy today. Moreover, Congress
has concluded that it has a trust obligation to Native Hawaiians precisely
because it bears responsibility for the destruction of their government
and their loss of sovereignty over their land. The Constitution is not so
self-defeating as to make the very reasons that Congress has concluded that
it has a trust responsibility serve as an obstacle to the fulfillment of
that responsibility. Nor is the existence of a tribal government necessary
to make legislation on behalf of indigenous people non-racial. Congress
does not extend services to Native Hawaiians because of their race, but
because of their unique status as the indigenous people of a once-sovereign
nation as to whom the United States has established a trust relationship.
C. When Congress delegates authority to a State to administer the federal
trust responsibility, state laws that are within the scope of that authority
are subject to the same constitutional analysis as legislation enacted by
Congress itself. Hawaii has acted under such a delegation of authority here.
In the Admission Act, Congress delegated broad authority to Hawaii to act
for the betterment of Native Hawaiians. The OHA voting law betters the conditions
of Native Hawaiians in two complementary ways: it promotes self-determination
by indigenous Hawaiians, and it helps to ensure that OHA will administer
the trust in a way that is responsive to the interests of that indigenous
group. Because petitioner's exclusion from the class of persons eligible
to vote for the trustees of OHA is based on the State's legitimate desire
to pursue those two non-racial goals, and not on petitioner's race, petitioner's
Fourteenth and Fifteenth Amendment claims should be rejected.
ARGUMENT
HAWAII'S VOTING LAW DOES NOT DISCRIMINATE ON THE BASIS OF RACE IN VIOLATION
OF THE FOURTEENTH OR FIFTEENTH AMENDMENTS
The State of Hawaii limits the right to vote for OHA trustees to "descendant[s]
of the aboriginal peoples inhabiting the Hawaiian Islands which exercised
sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples
thereafter have continued to reside in Hawaii." Haw. Rev. Stat. §
10-2 (1993); Haw. Const. Art. XII, § 5. Petitioner contends that the
OHA voting law contains a racial classification that is prohibited by the
Fifteenth Amendment and subject to strict scrutiny under the Fourteenth
Amendment. The line drawn by the State, however, is based on the status
of Hawaiians as an indigenous people of a once-sovereign nation with a unique
trust relationship to the United States; it is not based on race. It therefore
does not implicate the Fifteenth Amendment and is not subject to strict
scrutiny under the Fourteenth Amendment. Instead, the relevant constitutional
inquiry is whether the voting law is rationally tied to the fulfillment
of the United States' unique responsibility towards an indigenous people
as to whom it has a trust responsibility. The OHA voting law satisfies that
standard.
A. Federal Legislation That Fulfills The Government's Unique Responsibility
Towards Indians Does Not Discriminate On The Basis Of Race
Because the State's voting provision is based on a classification that has
its source in federal law, petitioner's challenge implicates Congress's
power to enact legislation for the benefit of indigenous people, or "Indians"
as the Constitution refers to them. We therefore begin with a discussion
of that power.
1. The term "Indian" was first applied by Columbus to the native
people of the New World based on the mistaken belief that he had found a
sea route to India. The term has been understood ever since to refer to
the indigenous people who inhabited the New World before the arrival of
the first Europeans. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544
(1832) (referring to Indians as "those already in possession [of the
land], either as aboriginal occupants, or as occupants by virtue of a discovery
made before the memory of man"); Johnson v. M'Intosh, 21 U.S. (8 Wheat.)
543, 572- 574 (1823) (referring to Indians as "original inhabitants"
or "natives" who occupied the New World before discovery by "the
great nations of Europe").
The Constitution allocates to Congress "plenary power over Indian affairs."
Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 531 n.6
(1998); United States v. Wheeler, 435 U.S. 313, 319 (1978); Mancari, 417
U.S. at 551-552. "The plenary power of Congress to deal with the special
problems of Indians is drawn both explicitly and implicitly from the Constitution
itself." Ibid. The Indian Commerce Clause, Art. I, § 8, Cl. 3,
expressly provides Congress with the power to "regulate Commerce with
* * * the Indian Tribes," and the Treaty Clause, Art. II, § 2,
Cl. 2, gives the President the power, by and with the consent of the Senate,
"to make Treaties," with Indian Tribes. The "existence of
federal power to regulate and protect the Indians and their property"
is also implicit in the structure of the Constitution. Board of County Comm'rs
v. Seber, 318 U.S. 705, 715 (1943). "In the exercise of the war and
treaty powers, the United States overcame the Indians and took possession
of their lands, sometimes by force, leaving them * * * needing protection
* * *. Of necessity, the United States assumed the duty of furnishing that
protection, and with it the authority to do all that was required to perform
that obligation." Ibid. Thus, "[n]ot only does the Constitution
expressly authorize Congress to regulate commerce with the Indian tribes,
but long continued legislative and executive usage and an unbroken current
of judicial decisions have attributed to the United States * * * the power
and the duty of exercising a fostering care and protection over all dependent
Indian communities." United States v. Sandoval, 231 U.S. 28, 45-46
(1913); see United States v. Kagama, 118 U.S. 375, 384-385 (1886) ("From
their [the Indians'] very weakness[,] so largely due to the course of dealing
of the Federal Government with them and the treaties in which it has been
promised, there arises the duty of protection, and with it the power. *
* * It must exist in that government, because it never has existed anywhere
else, because the theatre of its exercise is within the geographical limits
of the United States, because it has never been denied, and because it alone
can enforce its laws on all the tribes."); see also Ordinance of 1787:
The Northwest Territorial Government, Art. III, 1 Stat. 52 ("The utmost
good faith shall always be observed towards the Indians.").
2. Congress's plenary power over Indian affairs necessarily encompasses
broad authority to identify the communities that fall within the scope of
that power. For example, even after this Court had concluded that the Pueblo
people of New Mexico were too assimilated to constitute an Indian tribe
within the meaning of the Intercourse Act, United States v. Joseph, 94 U.S.
614, 617-618 (1877), the Court nonetheless deferred to Congress's decision
to recognize the Pueblos as Indian communities within the Indian affairs
power. Sandoval, 231 U.S. at 47. The Court explained that "the legislative
and executive branches of the Government have regarded and treated the Pueblos
of New Mexico as dependent communities entitled to its aid and protection,"
and that, in light of their Indian lineage, common culture, and relative
isolation from the rest of society, "this assertion of guardianship
over them cannot be said to be arbitrary but must be regarded as both authorized
and controlling." Ibid. Congress may not "bring a community or
body of people within the range of [its Indian affairs power] by arbitrarily
calling them an Indian tribe." Id. at 46. As long as Congress rationally
concludes that a community is "distinctly Indian," however, "the
questions whether, to what extent, and for what time they shall be recognized
and dealt with as dependent tribes requiring the guardianship and protection
of the United States are to be determined by Congress, and not by the courts."
Ibid.
Congress's authority to aid Indian communities, moreover, extends to all
such communities within the borders of the United States, "whether
within its original territory or territory subsequently acquired."
Sandoval, 231 U.S. at 46. Thus, despite differences in language, culture,
religion, race, and community structure, Native people in the East, Oneida
Indian Nation v. County of Oneida, 414 U.S. 661 (1974), the Plains, Kansas
Indians, 72 U.S. (5 Wall.) 737 (1867), the Southwest, Sandoval, supra, the
Pacific Northwest, Washington v. Yakima Indian Nation, 439 U.S. 463 (1979),
and Alaska, Organized Village of Kake v. Egan, 369 U.S. 60 (1962), all fall
within Congress's Indian affairs power.
3. The Court has always understood members of traditional Indian communities
to share the same or a similar race. Montoya v. United States, 180 U.S.
261, 266 (1901); Kagama, 118 U.S. at 378; United States v. Rogers, 45 U.S.
(4 How.) 567, 573 (1846); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1,
22 (1831). It has never suggested, however, that congressional legislation
that fulfills the United States' unique obligations towards Indians constitutes
discrimination on the basis of race.
In Mancari, the Court squarely held that distinctions based on the United
States' unique trust relationship with indigenous people should not be equated
with distinctions based on race that are prohibited by the Constitution.
In that case, the Court upheld the constitutionality of a law extending
a preference for employment in the Bureau of Indian Affairs (BIA) to members
of federally recognized tribes who have "one-fourth or more degree
Indian blood." 417 U.S. at 553 n.24. The Court rested its decision
on "the unique legal status of Indian tribes under federal law and
upon the plenary power of Congress, based on a history of treaties and the
assumption of a 'guardian-ward' status, to legislate on behalf of federally
recognized Indian tribes." Id. at 551. The Court emphasized that if
laws "designed to help only Indians were deemed invidious racial discrimination,
an entire Title of the United States Code (25 U.S.C.) would be effectively
erased and the solemn commitment of the Government toward the Indians would
be jeopardized." Id. at 552. Given that unique legal and historical
context, the Court concluded that the Indian employment preference was not
a "racial preference," because it "is granted to Indians
not as a discrete racial group, but rather, as members of quasi-sovereign
tribal entities whose lives and activities are governed by the BIA in a
unique fashion." Id. at 553-554. More generally, the Court held that,
"[a]s long as the special treatment [of Indians] can be tied rationally
to the fulfillment of Congress' unique obligation toward the Indians, such
legislative judgments will not be disturbed." Id. at 555. Because the
BIA employment preference rationally served the "non-racial" goals
of "further[ing] the cause of Indian self-government" and "mak[ing]
the BIA more responsive to the needs of its constituent groups," it
did not violate constitutional equal protection principles. Id. at 554.
Since Mancari, the Court has repeatedly reaffirmed that "federal regulation
of Indian affairs is not based upon impermissible [racial] classifications."
United States v. Antelope, 430 U.S. 641, 646 (1977). It is "governance
of once- sovereign political communities; it is not to be viewed as legislation
of a 'racial group consisting of Indians.'" Ibid. See also Washington
v. Fishing Vessel Ass'n, 443 U.S. 658, 673 n.20 (1979); Yakima Indian Nation,
439 U.S. at 500-501; Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 85-90
(1977); Fisher v. District Court, 424 U.S. 382, 390-391 (1976); Moe v. Confederated
Salish & Kootenai Tribes, 425 U.S. 463, 479-480 (1976).
B. Congress Has Rationally Identified Native Hawaiians As A Group Falling
Within Its Indian Affairs Power
1. Congress long ago identified Native Hawaiians as an indigenous group
falling within its Indian affairs power. In 1920, Congress enacted the Hawaiian
Homes Commission Act (HHCA), ch. 42, 42 Stat. 108, which designated 200,000
acres of lands for homesteading by "Native Hawaiians." Congress
has since enacted dozens of statutes that single out Native Hawaiians for
special treatment. Congress has established special Native Hawaiian programs
in the areas of health care, education, employment, and loans; it has enacted
statutes to preserve Native Hawaiian culture, language, and historical sites;
and it has classified Native Hawaiians as "Native Americans" under
numerous other statutes, thereby extending to Native Hawaiians many of the
same protections accorded to American Indians and Alaska Natives. See pp.
4-5, supra. Those enactments reflect Congress's view, expressly articulated
in 1992, that "[t]he authority of the Congress under the United States
Constitution to legislate in matters affecting the aboriginal or indigenous
peoples of the United States includes the authority to legislate in matters
affecting the native peoples of * * * Hawaii." 42 U.S.C. 11701(17).
Congress's treatment of Hawaiians as a distinct indigenous people falling
within its Indian affairs power is entirely rational. In the 1993 Joint
Resolution and in recent federal statutes extending educational and health
benefits to Native Hawaiians, Congress has found that: (1) Native Hawaiians
are "a distinct and unique indigenous people with a historical continuity
to the original inhabitants of the Hawaiian archipelago," 42 U.S.C.
11701(1); 20 U.S.C. 7902(1); (2) Native Hawaiians exercised sovereignty
over the Hawaiian Islands, 20 U.S.C. 80q-14(11); (3) the overthrow of the
Kingdom of Hawaii was "illegal" and deprived Native Hawaiians
of their right to "self-determination," 107 Stat. 1513; (4) the
government installed after the overthrow ceded 1.8 million acres of land
to the United States "without the consent of or compensation to the
Native Hawaiian people of Hawaii or their sovereign government," id.
at 1512; (5) "the indigenous Hawaiian people never directly relinquished
their claims to their inherent sovereignty as a people or over their national
lands to the United States," ibid.; and (6) "the Native Hawaiian
people are determined to preserve, develop and transmit to future generations
their ancestral territory, and their cultural identity in accordance with
their own spiritual and traditional beliefs, customs, practices, language,
and social institutions," id. at 1512-1513.
Those findings, none of which are challenged by petitioner, show that indigenous
Hawaiians, like numerous tribes in the continental United States, have both
historical and current bonds, as well as unrelinquished sovereignty and
territorial claims. Also like tribes in the continental United States, Native
Hawaiians, pursuant to Acts of Congress, have substantial lands set aside
for their benefit-200,000 acres of Homestead Act land on which there are
more than 6,800 leases to Native Hawaiians that furnish homes to an estimated
30,000 Hawaiians (See Hawaii Homes Comm'n, et al., Amicus Br. 1), and a
20% interest in the income generated by 1.2 million acres of public trust
lands under the Admission Act. Accordingly, Congress may enact special legislation
on behalf of Native Hawaiians, as it may for their counterparts elsewhere
in the United States. See Sandoval, 231 U.S. at 46-47.
2. Petitioner argues (Br. 39-45) that special legislation for indigenous
Hawaiians falls outside Congress's Indian affairs power, because the indigenous
Hawaiian community does not have a tribal government recognized by the Department
of the Interior. See Federally Recognized Indian Tribe List Act of 1994,
25 U.S.C. 479a & note, 479a-1; 25 C.F.R. Pt. 83 (establishing criteria
for Interior Department acknowledgment of tribal status). Congress, however,
has repeatedly recognized Native Hawaiians as an indigenous group within
its Indian affairs power, and the existence of a tribal government recognized
by the Department of Interior is not a necessary predicate for the exercise
by Congress itself of its unique power to fulfill the Nation's obligation
toward indigenous people.
A requirement that there be a recognized tribal government would be particularly
unjustified here The United States has concluded that it has a trust obligation
to indigenous Hawaiians because it bears a responsibility for the destruction
of their government and the unconsented and uncompensated taking of their
lands. It would be extraordinarily ironic if the very reasons that the United
States has a trust responsibility to the indigenous people of Hawaii served
as an obstacle to the fulfillment of that responsibility. Fortunately, the
Constitution is not so self-defeating. Congress may fulfill its trust responsibilities
to indigenous peoples, whether or not they currently have a tribal government
as such.
Petitioner attempts to locate a requirement of a present-day tribal government
in the Indian Commerce Clause's use of the term "Tribe," and in
this Court's decision in Mancari. See Br. 39-49. Neither provides a basis
for so shackling Congress's ability to fulfill its trust responsibilities
to those indigenous groups whose lands and sovereignty have been taken from
them.
When the Constitution was adopted, the term "tribe" meant a "distinct
body of people as divided by family or fortune, or any other characteristic."
T. Sheridan, A Complete Dictionary of the English Language (2d ed. 1789);
2 S. Johnson, A Dictionary of the English Language (6th ed. 1785) (same).
Thus, to the framers of the Constitution, an Indian tribe simply meant a
distinct group of indigenous people set apart by their common circumstances.
See also Worcester, 31 U.S. (6 Pet.) at 559 (equating Indian tribe and Indian
nation and defining "nation" as a "people distinct from others");
id. at 583 (Indians are "a separate and distinct people"). The
Constitution does not limit Congress's Indian affairs power to groups with
a particular government structure. "[S]ome bands of Indians, for example,
had little or no tribal organization, while others * * * were highly organized."
Fishing Vessel Ass'n, 443 U.S. at 664 (footnote omitted). Nor does the Constitution
limit Congress's power to groups that continue to exercise all aspects of
sovereignty. European "discovery" and the establishment of the
United States necessarily diminished certain aspects of Indian sovereignty,
Johnson, 21 U.S. (8 Wheat.) at 574; Cherokee Nation, 30 U.S. (5 Pet.) at
45, and the Constitution bestows on Congress "plenary authority to
limit, modify or eliminate the powers of local self-government which the
tribes otherwise possess," Santa Clara Pueblo v. Martinez, 436 U.S.
49, 56 (1978). Thus, under the Constitution, "[f]ederal regulation
of Indian tribes * * * is governance of once-sovereign political communities."
Antelope, 430 U.S. at 646.
Because Congress found that Hawaiians have a direct historic, cultural,
and land-based link to the indigenous people who inhabited and exercised
sovereignty over the Hawaiian Islands before the first European contact
in 1778, and that they are determined to preserve and to pass on to future
generations their native lands and their distinct culture, Congress could
reasonably determine that indigenous Hawaiians constitute an "Indian
Tribe." Once Congress has determined that an Indian group or community
has those characteristics, Congress "has a right to determine for itself
when the guardianship which has been maintained over the Indian shall cease."
Tiger v. Western Inv. Co., 221 U.S. 286, 315 (1911).5
Moreover, the United States' authority over Indian affairs does not emanate
from the Indian Commerce Clause alone. Congress would therefore retain ample
authority to enact special measures on behalf of Native Hawaiians even if
petitioner were correct that the Indian Commerce Clause may be invoked only
if there is in existence a tribal government with which the United States
may deal. This Court has held that the Constitution implicitly gives Congress
plenary power to manage Indian affairs more generally. Seber, 318 U.S. at
715; Sandoval, 231 U.S. at 45-46; Kagama, 118 U.S. at 383- 384. That plenary
power does not disintegrate when an indigenous people loses its government,
particularly when the United States bears a responsibility for that loss.
In the first place, the loss of a particular form of government is not tantamount
to termination of all sovereignty or of the prospect that sovereignty might
be given expression in the future through governmental or other structures.
In the case of Native Hawaiians, OHA itself furnishes a vehicle for the
expression of self-determination over important aspects of Hawaiian affairs,
and thus confirms that Native Hawaiians constitute a present-day "political"
community.6 That status is also confirmed by the existence of the myriad
Native Hawaiian organizations (many of which have joined in or are described
in amicus briefs in this case) that are active in a broad range of Native
political, cultural, religious, legal, and land-related matters. Cf. 25
C.F.R. 83.7(c) (discussing political and comparable activity as a criterion
for Interior Department acknowledgment). In any event, it is especially
at the point at which an indigenous people have been deprived of their land
and ability to govern themselves that the United States acquires a heightened
trust responsibility to the indigenous people and their remaining institutions.
See Seber, 318 U.S. at 715 (once the United States overcame the Indians
and took possession of their lands, it "assumed the duty of furnishing
* * * protection, and with it the authority to do all that was required
to perform that obligation"); Sandoval, 231 U.S. at 45-46 (United States
has "the power and the duty of exercising a fostering care and protection
over all dependent Indian communities"); Kagama, 118 U.S. at 384 (through
its course of dealings with Indian Tribes, the United States acquired a
"duty of protection" for the "remnants" of once sovereign
nations).
Nor does this Court's decision in Mancari call into question the constitutionality
of legislation aimed at fulfilling that obligation. Mancari holds that an
exercise of the Indian affairs power does not violate equal protection principles
as long as "the special treatment can be tied rationally to the fulfillment
of Congress' unique obligation toward the Indians." 417 U.S. at 555.
Legislation that provides aid to a distinct indigenous community can satisfy
that test, whether or not that community has a federally recognized tribal
government. For example, when Congress enacted legislation in 1920 to return
some land to indigenous Hawaiian people who were dying in the city so that
they could resume their traditional way of life, there was no Hawaiian tribal
government in existence. That legislation, however, was plainly tied to
the fulfillment of Congress's unique obligation toward the Indians. See
id. at 555. The same is true of the many other federal statutes that address
the distinct needs of the indigenous Hawaiian people. See pp. 4-5, 16-17,
supra.
Petitioner emphasizes (Br. 39) that the particular preference approved in
Mancari extends only to members of federally recognized tribes, making the
preference "political" rather than "racial." See 417
U.S. at 553 n.24. The Court did not suggest, however, that the absence of
a federally recognized tribal government automatically makes legislation
designed to fulfill Congress's unique obligation to Indians "racial,"
and any such argument would be untenable. The Court explained in Mancari
that the limitation of the preference to members of federally recognized
tribes operated to exclude many individuals who might racially be classified
as "Indians," and that "[i]n this sense, the preference is
political rather than racial in nature." Ibid. The same is true here.
The definition of "Hawaiian" for purposes of voting eligibility-descendants
of the Native people who occupied the Hawaiian Islands in 1778-similarly
excludes many people who might be classified as the same race (i.e., Polynesian),
but who came to the Hawaiian Islands after European discovery. The classification
is therefore "political" in the same sense as in Mancari: it turns
on the political event of discovery by Europeans in 1778, followed by recognition
by the political Branches of the descendants of the aboriginal people of
Hawaii as a distinct indigenous community deserving of protection. Congress
does not extend benefits and services to Native Hawaiians because of their
race, but because of their unique status as the indigenous people of a once-sovereign
nation as to whom the United States has a recognized trust responsibility.
Such legislation is just as non-racial as the legislation upheld in Mancari.
3. This Court's decisions subsequent to Mancari confirm that a federally
recognized tribal government is not a predicate for legislation on behalf
of indigenous people. For example, in United States v. John, 437 U.S. 634
(1978), the Court upheld the power of Congress to provide for a group of
Mississippi Choctaw Indians that did not have a federally recognized tribal
government. The United States had entered into a treaty under which the
Choctaw Indians would leave Mississippi by 1833. Id. at 641. In the 1890s,
however, the United States became aware that a group of Choctaws had not
left Mississippi. Id. at 643. Even though the United States did not regard
that remaining group as members of a federally recognized tribe, id. at
650 n.20, it began to provide services and land to individual Choctaws in
Mississippi. Id. at 644. In 1939, Congress declared that the lands that
had been purchased for individual Choctaws would be held in trust for Choctaw
Indians of one-half or more Indian blood, resident in Mississippi, and in
1944, Congress made those lands a reservation. Id. at 646. Finally, in 1945,
Mississippi Choctaws of one-half or more Indian blood adopted a constitution
and bylaws, which were then approved by the appropriate federal officials.
Ibid.
Against that background, Mississippi argued that Congress lacked constitutional
authority to establish federal criminal jurisdiction in the Choctaw Reservation.
John, 437 U.S. at 652. The Court rejected that argument, explaining:
[I]n view of the elaborate history * * * of relations between the Mississippi
Choctaws and the United States, we do not agree that Congress and the Executive
Branch have less power to deal with the affairs of the Mississippi Choctaws
than with the affairs of other Indian groups. Neither the fact that the
Choctaws in Mississippi are merely a remnant of a larger group of Indians,
long ago removed from Mississippi, nor the fact that federal supervision
over them has not been continuous, destroys the federal power to deal with
them.
Id. at 652-653.
The decision in Weeks, supra, similarly refutes petitioner's argument that
Congress's Indian affairs power extends only to members of federally recognized
tribes. In that case, the Court upheld a statutory scheme to provide financial
benefits to descendants of members of the Delaware Tribe. Although the Court
recognized that beneficiaries included non-tribal Indians, 430 U.S. at 82
n.14, 84-85, that feature of the scheme did not alter the Court's view of
the appropriate level of scrutiny required by the Constitution. The Court
applied the standard set forth in Mancari, and upheld the distribution scheme
on that basis. Id. at 85.
Weeks thus reaffirms that federal legislation governing Indian affairs is
constitutional if rationally related to Congress's unique obligation to
Indians, whether or not the beneficiaries are, at that time, members of
federally recognized tribes. Other cases and federal statutes reflect that
same understanding. Menominee Tribe v. United States, 391 U.S. 404, 410-413
(1968) (members of terminated tribe retain hunting and fishing rights);
Seber, 318 U.S. at 716-718 (Congress has authority to allot land to individual
Indians with special protections against alienation and exemption from state
taxation); United States v. McGowan, 302 U.S. 535, 537, 539 (1938) (Congress
established Reno Indian Colony for needy Indians scattered throughout the
State); Taylor v. Brown, 147 U.S. 640 (1893) (Indians who sever relations
with their tribe are eligible to receive protected land); Indian Health
Care Improvement Act, 25 U.S.C. 1603(c) (extending health care services
to members of terminated tribes); Indian Reorganization Act, 25 U.S.C. 461
et seq. (authorizing Secretary of Interior to extend federal recognition
to Indian tribes that had previously lost federally recognized status);
25 U.S.C. 903-903f (restoring federal recognition to the Menominee Tribe
of Wisconsin); 25 U.S.C. 651 (defining "Indians of California"
eligible for distribution fund as "all Indians who were residing in
the State of California on June 1, 1852, and their descendants now living
in said State").
4. Petitioner's additional grounds for viewing legislation for indigenous
Hawaiians as racial and outside Congress's Indian affairs power are also
without merit. Petitioner contends (Br. 26-27) that such programs are racial
because no similar benefits are extended to the descendants of non-Hawaiians
who were citizens of Hawaii when the Hawaiian government was overthrown.
But those who came to Hawaii after 1778-whether European, Asian, or Polynesian
-have no aboriginal claim to sovereignty or land. Laws that distinguish
between a distinct indigenous group, as to whom Congress has undertaken
a trust responsibility, and subsequent inhabitants do not make a distinction
based on race.
The distinction between indigenous people and subsequent inhabitants has
uniformly been respected in federal law. Following the national expansion
resulting from the Louisiana Purchase, the federal government undertook
trust obligations toward the Indians but not to the French settlers of the
region. When the United States purchased Alaska, the United States recognized
that it had special obligations to the Native Alaskans but not to the inhabitants
of Russian and other descent. In annexing the Hawaiian Islands, Congress
recognized its trust obligations to Native Hawaiians. Those obligations
do not extend to the non-indigenous inhabitants of Hawaii.
Furthermore, by the time Congress formally annexed Hawaii in 1898, the presence
of non-natives (including many Americans) had already caused widespread
harm to Native Hawaiians. Congress could reasonably conclude that the United
States, through annexation, succeeded to an obligation to account for the
consequences of that pre-annexation experience, just as the United States
recognized the consequences of England's dealings with the Indians prior
to the independence of the United States, see Johnson v. M'Intosh, supra,
and Spain's dealings with the Indians prior to the United States' acquisition
of territory once held by Spain, see United States v. Candelaria, supra.
Nor does it matter (Pet. Br. 42-43) that Native Hawaiians came into the
federal union as citizens. "Citizenship is not incompatible with tribal
existence or continued guardianship, and so may be conferred without * *
* placing [Indians] beyond the reach of congressional regulations adopted
for their protection." United States v. Nice, 241 U.S. 591, 598 (1916);
see Sandoval, 231 U.S. at 48 (citing cases). If the rule were otherwise,
Congress would have been deprived of all power over Indian affairs in 1924
when all Indians were granted citizenship. See Act of June 2, 1924, ch.
233, 43 Stat. 253.
Thus, Congress has no less authority under its Indian affairs power to enact
legislation for the benefit of Native Hawaiians than it has to enact legislation
for the benefit of other distinct indigenous groups as to whom it has undertaken
a trust responsibility. Such legislation is constitutional as long as it
is rationally tied to the fulfillment of Congress's unique obligation toward
indigenous Hawaiians. Mancari, 417 U.S. at 555.7
C. Hawaii's Voting Requirement Is Authorized By Federal Law And Is Rationally
Tied To The Fulfillment Of The United States' Obligation To Indigenous Hawaiians
1. While the voting restriction at issue was adopted by Hawaii, rather than
the federal government, that does not alter the constitutional analysis
in this case. As a general matter, the "States do not enjoy [the] same
unique relationship with Indians" as the federal government. Yakima
Indian Nation, 439 U.S. at 501. When Congress delegates authority to a State
to administer the federal trust responsibility to indigenous people, however,
state legislation that is within the scope of that authority is subject
to the same constitutional analysis as legislation enacted by Congress itself.
Ibid.8 Hawaii has acted under such a delegation of authority here.
In the Hawaii Admission Act, Congress directed the State to hold 1.2 million
acres of land in trust and to use the income generated from the land for
one of five purposes, including "the betterment of the conditions of
native Hawaiians." § 5(f), 73 Stat. 6. Congress has also authorized
the State to administer the federal trust "in such a manner" as
the State's constitution and laws provide. Ibid. The Admission Act therefore
conveys broad authority to the State to use the trust funds from the ceded
lands in any manner that serves the interests of Native Hawaiians.
The State's decisions to allocate 20% of the fund to programs for Native
Hawaiians and to create an Office of Hawaiian Affairs to administer those
programs unquestionably fall within the scope of the State's authority to
operate the land trust "for the betterment of the conditions of native
Hawaiians," "in such a manner" as the State may provide.
Indeed, as the court of appeals noted (Pet. App. 9a), petitioner has not
challenged either decision.
Giving indigenous Hawaiians the right to choose the officials who will operate
the trust for their betterment similarly fits within the Admission Act's
wide grant of authority. Such an election scheme "better[s] * * * the
conditions of native Hawaiians" in two distinct, but complementary
ways: it both promotes self-determination by indigenous Hawaiians and helps
to ensure that OHA will administer the trust in a way that is responsive
to their interests. Those are precisely the reasons the State had for granting
to indigenous Hawaiians the right to elect OHA officials. J.A. 39 ("people
to whom assets belong should have control over them"); J.A. 53 (election
of OHA officials by indigenous Hawaiians would promote "self-determination
and self-government"); J.A. 39 ("a board of trustees chosen from
among those who are interested parties would be the best way to insure proper
management and adherence to the needed fiduciary principles"); J.A.
40 (trust beneficiaries "would best protect their own rights").
The State's determination that it serves Native Hawaiian interests to allow
them to choose the OHA trustees comports with the longstanding congressional
commitment to Indian self-determination. In the Indian Self-Determination
Act of 1974, which was enacted before Hawaii amended its Constitution to
establish OHA, Congress expressed "its commitment to * * * a meaningful
Indian self-determination policy which will permit an orderly transition
from the Federal domination of programs for, and services to, Indians to
effective and meaningful participation by the Indian people in the planning,
conduct, and administration of those programs and services." 25 U.S.C.
450a(b). The federal government frequently oversees elections for tribal
governments in which only tribal members may vote. See, e.g., 25 U.S.C.
476, 478, 677e. Hawaii's election law furthers the same self-determination
purpose as those federally supervised tribal elections.
The Hawaii election law also bears a resemblance to the BIA employment preference
upheld in Mancari. The Court upheld that preference because it rationally
served the "non-racial" goals of "further[ing] the cause
of Indian self-government" and "mak[ing] the [agency] more responsive
to the needs of its constituent groups," 417 U.S. at 554-the same two
goals that are served by the OHA election law. The difference between the
OHA election law and the employment preference upheld in Mancari is that
the OHA election law serves the interests of self-determination and accountability
more directly. Instead of placing power and influence in the hands of the
particular individuals selected for employment, it places power and influence
in the hands of the trust beneficiaries as a whole. The OHA election law
therefore falls squarely within the Admission Act's broad grant of authority
to "better[] * * * the conditions of native Hawaiians." §
5(f), 73 Stat. 6.
Congress has also implicitly ratified the OHA election structure. Congress
has specifically found that OHA "serves and represents the interests
of Native Hawaiians," that OHA "has as a primary and stated purpose
the provision of services to Native Hawaiians," 16 U.S.C. 470w(18),
and that OHA has "expertise in Native Hawaiian affairs," 20 U.S.C.
80q-11(a)(2). See also 25 U.S.C. 3001(11). Congress has also expressly authorized
OHA to administer several programs for Native Hawaiians. 20 U.S.C. 4441(c)(2)(B),
7904(b)(3) and (f); 42 U.S.C. 2991b-1(a), 11711(7)(A)(ii). Those congressional
actions reflect a clear approval of OHA's election structure. See S. Rep.
No. 580, supra, at 32 (finding that the election of OHA trustees by Native
Hawaiians represents "a rational means of effectuating the state's
obligations under the trust relationship to Native Hawaiians").9
2. Because the OHA election law is authorized by Congress, it is subject
to the same standard of review as legislation enacted by Congress that singles
out a distinct indigenous group for favorable treatment: it is constitutional
as long as it is rationally tied to the fulfillment of Congress's unique
trust obligation to Indians. Mancari, 417 U.S. at 555. The OHA election
law readily satisfies that standard. As discussed above, that law promotes
self-determination by indigenous Hawaiians, and it helps to ensure that
OHA administers the unchallenged trusts in a way that is sensitive to the
interests of the trusts' sole beneficiaries. Petitioner's exclusion from
the class of persons eligible to vote for OHA is based on the State's entirely
legitimate desire to further those two "non-racial" goals, id.
at 554, not on petitioner's race. Petitioner's Fourteenth and Fifteenth
Amendment challenges to the OHA election law should therefore be rejected.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
BARBARA D. UNDERWOOD
EDWIN S. KNEEDLER
Deputy Solicitors General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
ELIZABETH ANN PETERSON
JARED A. GOLDSTEIN
Attorneys
JULY 1999
1 The quotation is from the 1993 Joint Resolution of Congress to acknowledge
the 100th anniversary of the overthrow of the Kingdom of Hawaii and to offer
an apology to Native Hawaiians. That resolution recites pertinent history.
2 Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701- 11714; Native
Hawaiian Education Act, 20 U.S.C. 7901-7912; Workforce Investment Act of
1998, Pub. L. No. 105-220, § 166, 112 Stat. 1021 (to be codified at
29 U.S.C. 2911 (Supp. IV 1998)); Native American Programs Act of 1974, 42
U.S.C. 2991-2992.
3 See 16 U.S.C. 396d(a) (establishing "a center for the preservation,
interpretation, and perpetuation of traditional native Hawaiian activities
and culture"); 20 U.S.C. 4441 (providing funding for Native Hawaiian
arts and cultural development); Native American Languages Act, 25 U.S.C.
2901-2906 (1994 & Supp. III 1997); National Historic Preservation Act
of 1966, 16 U.S.C. 470a(d)(6).
4 See, e.g., American Indian Religious Freedom Act, 42 U.S.C. 1996 et seq.;
Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001-3013;
Native American Programs Act of 1974, 42 U.S.C. 2991-2992; National Museum
of the American Indian Act, 20 U.S.C. 80q et seq.; Comprehensive Employment
and Training Act, 29 U.S.C. 872; Drug Abuse Prevention, Treatment, and Rehabilitation
Act, 21 U.S.C. 1177; Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment, and Rehabilitation Act, 42 U.S.C. 4577(c)(4); Cranston-Gonzalez
National Affordable Housing Act, Pub. L. No. 101-625, § 958, 104 Stat.
4422; National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.;
Older Americans Act of 1965, 42 U.S.C. 3001 et seq.; Rehabilitation Act
of 1973, 29 U.S.C. 701 et seq.; Developmental Disabilities Assistance and
Bill of Rights Act Amendments of 1987, Pub. L. No. 100-146, § 502(a)(2),
101 Stat. 857; Disadvantaged Minority Health Improvement Act of 1990, 42
U.S.C. 201 et seq.; Indian Health Care Amendments of 1988, 25 U.S.C. 1601
et seq.
5 In several statutory contexts, Congress has used the term "tribe"
in a narrower sense, distinguishing, for example, between a "tribe"
and a "band." See, e.g., Montoya, 180 U.S. at 266; see also United
States v. Candelaria, 271 U.S. 432, 442 (1926). As discussed above, however,
the Constitution uses the term "Tribe" to refer to any distinct
indigenous group.
6 OHA's status as a state-law creation does not diminish its significance
as a factor supporting the status of Native Hawaiians as a "Tribe"
in the constitutional sense. A number of Tribes that have been formally
recognized as such were effectively under state protection for much of their
existence. See, e.g., United States v. Wright, 53 F.2d 300, 303-304 (4th
Cir. 1931) (Eastern Band of Cherokee Indians operated under state charter),
cert. denied, 285 U.S. 539 (1932); 25 U.S.C. 734(a) (power of Texas to enact
legislation benefitting Alabama and Coushatta Indian Tribes); 25 U.S.C.
1721(a)(9) (Passamaquoddy and Penobscot Tribes in Maine); see also South
Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 501 (1986); New York
ex rel. Cutler v. Dibble, 62 U.S. (21 How.) 366 (1859).
7 Petitioner relies (Br. 41-42) on memoranda prepared by the Office of Legal
Counsel in the Department of Justice, as support for his view that the federal
government's special relationship with Indians is limited to members of
federally recognized tribes. The cited memoranda, however, do no more than
note that federal regulation of Indian affairs is based on a classification
that is political and not racial in nature; they do not purport to answer
the question whether Native Hawaiians qualify for treatment similar to that
accorded to other indigenous peoples. While the Department of Justice has
from time to time taken different views of that question, see Letter from
Andrew Fois, Assistant Attorney Gen., Office of Legislative Affairs, to
Hon. Nancy Kassenbaum, Chairwoman, Senate Comm. on Labor and Human Resources
(Jan. 11. 1996), it has most recently taken the position that the question
is an open one. Letter from L. Anthony Sutin, Acting Assistant Attorney
Gen., Office of Legislative Affairs, to Hon. Ben Nighthorse Campbell, Chairman,
Senate Comm. on Indian Affairs (July 16, 1998); see also Letter from Christopher
H. Schroder, Acting Assistant Attorney Gen., Office of Legal Counsel, to
Jamison S. Borek, Deputy Legal Adviser, U.S. Dep't of State (Nov. 1, 1996).
8 This case does not present the separate question that might be raised
by state laws with respect to Indians that were passed in the absence of
congressional authorization. Compare n. 6, supra, with Three Affiliated
Tribes v. Wold Eng'g, 467 U.S. 138, 157 (1984).
9 Petitioner argues (Pet. 21) that the election law falls outside the grant
of authority in the Admission Act, because it extends voting rights to all
descendants of indigenous Hawaiians, not just those with 50% or more blood
quantum. OHA administers a separate trust responsibility for all indigenous
Hawaiians, however, and in adopting that more inclusive definition, Hawaii
was simply following congressional policy. In all programs for the benefit
of Native Hawaiians enacted since 1974, Congress has defined Native Hawaiians
to include all descendants of indigenous Hawaiians, not just those with
50% or more blood quantum. See p. 6, supra. Moreover, all the programs that
Congress has authorized OHA to administer provide benefits to all descendants
of indigenous Hawai- ians. 20 U.S.C. 4441(c)(2)(B), 7904(b)(3) and (f);
42 U.S.C. 2991b-1(a), 11711(7)(A)(ii).