The annexation, and ensuing resolutions, placed all crown and government lands in the hands of the United States to be used "solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." An Act to Provide a Government for the Territory of Hawaii, Ch. 339, 31 Stat. 141 (1900). Notwithstanding this trust, Native Hawaiians never saw any benefit from these lands. Decades later, finally beginning to recognize the dire need to fulfill its trust with the Native Hawaiians, and relying on the precedent of previous federal laws granting Indians special rights in public lands, Congress set aside 203,500 acres of these ceded lands for the purpose of providing farms and residences for Native Hawaiians, under the auspices of the Hawaiian Homes Commission. Act of July 9, 1921, Ch. 42, 42 Stat. 108. Hawaii adopted this Act and took responsibility for fulfilling the government’s trust when it became a State in 1959. See Hawaii Statehood Admissions Act (Admissions Act), 73 Stat. 5, §4. In addition, Section 5 of the Admissions Act conveyed an additional 1.2 million acres of land to the State to be held in trust "for the betterment of the conditions of Native Hawaiians" and certain other public purposes. See id. However, due to a technicality in the trust that allowed the state to spend the money on public schools instead of programs directly benefiting Native Hawaiians, "no benefits actually went to Native Hawaiians until the state constitution was amended in 1978." See Rice v. Cayetano, 146 F.3d 1075, 1077 (1998). Shortly thereafter, a legislative Act was passed requiring that 20% of the funds from the lands held by the state in trust must go to the Office of Hawaiian Affairs, to be spent for the benefit of Native Hawaiians.

Despite these efforts, today, only a small number of Native Hawaiians have received land through operation of the trusts, and benefits have been too slow to effect meaningful change in the condition of Native Hawaiians. As a result, more than two hundred years later, Hawaiians have not recovered from the destruction of their culture and suppression of their traditions. Native Hawaiians today constitute less that twenty percent of Hawaii’s population. However, they are over represented in the state’s prisons, public housing, poor health, substance abuse, and unemployment rolls, and more than twice as likely to live below the poverty line as other residents of Hawaii. See Office of Hawaiian Affairs, Native Hawaiian Data Book (2000). They are less likely to complete high school or college. See id. Native Hawaiians also possess the shortest life expectancy of all Hawaii residents — by some estimates, the extinction of full-blooded Hawaiians will occur by the year 2040. See Leirman, supra, at 515.

This treatment at the hands of the American government, including the loss of their native lands under the threat of force, binds the history of Native Hawaiians to that of Native Americans. Over roughly the same period of time, the Federal Government was making treaty after treaty with the Native Americans, mostly to dispossess them of their lands and move them westward. See, e.g., Joseph D. Matal, A Revisionist History of Indian Country, 14 Alaska L. Rev. 283 (1997) ("Until the mid-nineteenth century, Indian removal was the primary feature of British and then American policy toward the tribes."). Over time, the federal government has recognized the wrongness of its former actions, and tried to make some effort to correct them. Using its plenary power over "Indian Tribes," Congress passed the Indian Reorganization Act of 1934, 25 U.S.C. §461 et. seq. (1934), and later the Alaska Native Claims Settlement Act, 43 U.S.C. §1601 et seq. (2000), to grant both money and lands to Native Americans and Alaska Natives, respectively.

Congress has likewise attempted to make a beginning at reconciling with the Native Hawaiians. In all, over 150 pieces of legislation have classified Hawaiians as Native Americans, and included them in a variety of Native American benefit programs. See Reconciliation Report at 57. Such statutes include the National Historic Preservation Act, 16 U.S.C. §470a(d)(6) (West Supp. 1998), which provides protection to property with cultural or religious importance to Indian tribes and Hawaiians; the Native Hawaiian Languages Act, 25 U.S.C. §2901-2912(1994), which accords protection to the Native Hawaiian languages and includes them in the collection of Native American languages; and the American Indian Religious Freedom Act, 42 U.S.C. §1996 (1994), which pledges to preserve Native Hawaiian faiths under a subset of religions described in the statute as "Native American."

These longstanding and ongoing efforts by Congress recognize that the Federal government stands in a special relationship with respect to the Native Hawaiians. Just as with Native Americans and Alaska Natives, Native Hawaiians were a once-sovereign nation, and have never relinquished their claims of sovereignty. Just as with Native Americans and Alaska Natives, Native Hawaiians were ravaged by western diseases and suffered massive losses of population. Just as with Native Americans and Alaska Natives, Native Hawaiians have been dispossessed of their ancestral lands with the active support of the federal government, and have never expressly relinquished their claims to their ancestral land. Just as with Native Americans and Alaska Natives, the Native Hawaiian culture became all but extinct due to the oppressive actions of white settlers and the American government. And just as with Native Americans and Alaska Natives, Native Hawaiians to this day still suffer from the effects of American expansion, far surpassing the average rates of unemployment and poverty, and far below national norms in level of education, income, and life expectancy.

Indeed, there is but a single distinction that can be drawn between the plight of the Native Hawaiians and that of their continental counterparts, and it is upon this very distinction that critics of the constitutionality of Congress’s reconciliation efforts hang their entire argument. Whereas on the continent, efforts to stamp out Native American culture were never entirely successful — leaving some vestiges of tribal structure for courts to treat as a quasi-sovereign for constitutional purposes — on the Hawaiian Islands, on the other hand, all tribal structure was completely destroyed, and no vestiges of an official "tribe" which purports to represent all Native Hawaiians remains. Absent this tribal structure, one scholar has concluded, there is no "Tribe" within the meaning of the Constitution’s provision of power to Congress to regulate "Indian Tribes," and such preferences must be viewed under the strict scrutiny given to preferences based solely on race. See Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537, 558-560 (1996). For the reasons discussed below, the preponderance of the law supports the fact that Congress may regulate the affairs of Native Hawaiians as it does Native Americans despite the absence of this tribal structure, and this small distinction between the two groups is of no constitutional importance.

Equal Protection Requires that Similarly-Situated Indigenous Peoples Receive the Same Treatment From the Federal Government:

In light of their shared history of mistreatment by the Federal Government, and their similar resulting need for the special protection of the Federal Government if their cultures, traditions, and practices are to continue to survive, it would be a strange result indeed if the constitution acknowledged that the federal government must assist Native Americans, while simultaneously preventing the federal government from enacting programs designed to preserve the existence of Native Hawaiians. It is unsurprising, then, that outside of the previously-mentioned dicta in the Rice decision, there is scant legal support for such a view. Even in the dicta of Rice itself — wherein Justice Kennedy discusses the "difficult [constitutional] terrain" that was posed by the State’s argument in that case that it had the power to deal with Native Hawaiian’s as an Indian tribe — Justice Kennedy’s concerns seem to be much less focused on whether Congress has a special relationship with the Native Hawaiians (and the concomitant ability to pass beneficial laws accordingly) than whether, assuming such power existed, Congress had the ability, and had in fact, delegated such power to the State of Hawaii. See Rice, 528 U.S. at 518. As a consequence, the best view of the Rice decision may be, as one scholar has suggested, that "the decision is but a logical reaffirmation of the Court’s reasoning in its recent redistricting cases, which sharply define the Constitution’s strict prohibition against using race as a condition of voting," and nothing more. See William E. Spurill, Case Note, The Fate of the Native Hawaiians: The Special Relationship Doctrine, the Problem of Strict Scrutiny, and Other Issues raised by Rice v. Cayetano, 35 U. Rich. L. Rev. 149, 153 (2001). In any event, the clear weight of authority supports the idea that Congress certainly has the power to recognize a special relationship between the Federal Government and Native Hawaiians, and pass laws accordingly. Even the sole commentator on which Justice Kennedy relied to make his observation that the issue was the subject of some debate himself acknowledges that all other courts and legal commentators have reached the opposite conclusion. See Benjamin, supra, at 558.

It is difficult indeed to escape the conclusion that "in this context, the equal protection argument follows that as a group of Native Americans similarly situated, the Native Hawaiian peoples should be treated in a manner uniform with other classes of Native Americans." Lindsey, supra, at 716. In other words, since Congress has the well-established authority to create programs which benefit Native Americans as the result of having developed a "special relationship" with Native Americans — notwithstanding the fact that the programs contain what appears on its face to be a racial classification that would be subject to strict scrutiny under Adarand — then it must also have the authority to provide such programs to Native Hawaiians. To defeat this conclusion, the opponents of such programs can point to but a single distinction — that Native Hawaiians are not currently composed into an organized tribal entity along the lines of their mainland counterparts. See Benjamin, supra, at 558. The caselaw does not support the conclusion that this distinction is constitutionally dispositive.

"Native Hawaiians," as a group, constitute a tribe under any constitutional definition of the word that would be applied by the courts. While Congress may not "bring a community or body of people within the range of [its powers under the Indian Commerce Clause] by arbitrarily calling them a tribe," Congress’s plenary power over Indian affairs must necessarily encompass the general authority to identify which communities of indigenous peoples constitute a tribe. United States v. Sandoval, 231 U.S. 28, 46 (1913). Provided Congress makes a reasonable determination that a particular community is "distinctly Indian," then "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, not the Courts." Id. Even in absence of such deference to legislative judgments, there is no general agreement in the courts as to the qualifications a group must have in order to be considered a tribe for constitutional purposes. The Supreme Court has made at least one attempt at defining the word "tribe" in a case dealing with an unrelated issue: "[b]y a ‘tribe’ we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." Montoya v. United States, 180 U.S. 261, 266 (1901). Native Hawaiians easily meet this definition in virtually every respect — they are a group; they are "Indians" or "Native Americans" in the sense of being peoples indigenous to the land that is now part of one of the fifty states; they are united in their community by sharing common history, traditions, culture, language, and dances; and they inhabit a particular territory, the Hawaiian Islands. The only aspect that is arguably lacking is that Native Hawaiians are no longer a community under one leadership, or indeed any leadership at all outside of state-created entities such as the Office of Hawaiian Affairs. However, there is no reason to believe that the Supreme Court would consider this deficiency to be of any constitutional moment.

The only argument that somehow the lack of vestiges of a formal tribal structure of Native Hawaiians effectively places them beyond the reach of the special powers granted to Congress through the Indian Commerce Clause (and recognized by the Court in the Mancari decision) is the one advanced by Professor Benjamin. See Benjamin, supra, at 582 ("The problem with the suggestion that the history of Native Hawaiians and Indian tribes is similar in constitutionally dispositive ways is that the two groups differ in a crucial respect: American Indians remained in political organizations, but Native Hawaiians did not."). He relies on a single footnote from the Mancari decision itself — in which the Court upheld hiring preferences for Native Americans in place at the Bureau of Indian Affairs — which states that: "The preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes" and thus "the preference is political rather than racial in nature." Mancari, 417 U.S. at 553, n.24. Absent the vestiges of tribal leadership, so Professor Benjamin’s argument goes, there is no political entity with which the Federal Government can entreat, and consequently the term "Native Hawaiian" must be understood as racial rather than political or legal. See Benjamin, supra, at 545-48. But see, e.g., Liermann, supra, at 510 ("However, based upon case law, constitutional analysis, and policy, Hawaiians probably need not organize into a federally-recognized tribe for courts to subject legislation granting them preferential programs to a minimal standard of review."); Van Dyke, supra, at 101 (explaining "why the constitutional and decisional language upon which Professor Benjamin relies does not support his conclusion that rational basis review applies only to programs favoring federally recognized Indian tribes"); Philip P. Frickey, Adjudication and Its Discontents: Coherence and Conciliation in Federal Indian Law, 110 Harv. L. Rev. 1754, 1764 (1997) ("[T]he weak substructure of Adarand and Mancari cannot support the dense superstructure of analysis that Benjamin creates.").

To accept this argument, of course, would require turning a blind eye toward what at least two Supreme Court Justices have already identified as the "painful irony indeed [of concluding] that Native Hawaiians are not entitled to special benefits designed to restore a measure of native self-governance because they currently lack any vestigial native government — a possibility of which history and the actions of this Nation have deprived them." Rice, 525 U.S. at 535 (Stevens, J., dissenting). But more importantly, the Supreme Court’s jurisprudence following Mancari makes clear that tribal leadership is not the sine qua non of what may constitute a "tribe" for purposes of Congress’ power under the Indian Commerce Clause. In at least two later decisions, Delaware Tribal Business Committee v. Weeks 430 U.S. 73 (1977), and United States v. John, 437 U.S. 634 (1978), the Court upheld, under deferential judicial review, programs that provided benefits to or established separate legal regimes for individual natives who had no recognizable "chief" or other symbol of tribal authority — something the Court could only have done if those who were benefited by the statute fell under the Court’s understanding of an "Indian Tribe" for purposes of the Commerce Clause.

At issue in Weeks was the constitutionality of a statute that provided assets to the descendants of two recognized tribes, but did not require that those receiving the assets themselves be members of those tribes. See Weeks, 430 U.S. at 82 n. 14. While expressly recognizing that this meant that benefits would go to certain natives who were not members of a recognized tribe, the Court ruled that the statute fell within the Mancari test and could be sustained so long as the statute had a rational basis. See id. The majority concluded that Congress was free to "expand a class of tribal beneficiaries entitled to share in royalties from tribal lands." Id. at 84. Obviously, if the Native Americans at issue in Weeks, who did not swear allegiance to the tribal chief or otherwise participate in tribal life, could nonetheless be considered members of the "tribe" for purposes of the distribution of the tribe’s assets, the existence of any particular political structure is not the sine qua non of a "tribe" for purposes of the Indian Commerce Clause. While later in the same decision, the Court also affirmed Congress’s decision to exclude another group nontribal Indians (the Kansas Delawares) that sought a share of the assets, see id. at 85-90, taken as a whole, the decision reflects an obvious attempt by the Court to give Congress a wide latitude in deciding which particular groups of Native Americans do and do not constitute members of a "tribe" for purposes of recognizing a special trust relationship.

In John, the Court affirmed Congress’s authority under the Indian Commerce Clause to take criminal jurisdiction over nontribal Indians who were a remnant of a tribe of Indians that had long ago moved to Oklahoma. See John, 437 U.S. at 653. The Court upheld the regime notwithstanding the fact that federal supervision over the Indians had not been continuous, and the fact that the Solicitor for the Department of the Interior had urged that the Indians "cannot now be regarded as a tribe." Id. at 650 n. 20. As the Court explained, "[n]either 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 653. The Court nonetheless concluded that it was appropriate for the federal government to establish separate programs for these Indians, albeit while noting that the federal government was nurturing a self-government process for these Indians, and the development of a more formal tribal structure was anticipated. See id.

Taken together, as one scholar has explained:

Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y Rev. 95, 117-18 (1988). In short, the preponderance of the law supports the proposition that the decision as to which indigenous peoples constitute a "tribe" for purposes of Congress’ plenary power is primarily an issue for Congress to decide, and is a decision to which courts will grant a great degree of deference. For this reason, any suggestion that proposed statutes benefiting Native Hawaiians will suffer from a constitutional infirmity, and subsequently should be amended or voted down, is egregiously misplaced.