[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 746 Reported in Senate (RS)]






                                                       Calendar No. 165
107th CONGRESS
  1st Session
                                 S. 746

                          [Report No. 107-66]

Expressing the policy of the United States regarding the United States 
  relationship with Native Hawaiians and to provide a process for the 
   recognition by the United States of the Native Hawaiian governing 
                    entity, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 6, 2001

 Mr. Akaka (for himself and Mr. Inouye) introduced the following bill; 
  which was read twice and referred to the Committee on Indian Affairs

                           September 21, 2001

               Reported by Mr. Inouye, with an amendment
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
Expressing the policy of the United States regarding the United States 
  relationship with Native Hawaiians and to provide a process for the 
   recognition by the United States of the Native Hawaiian governing 
                    entity, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. FINDINGS.

    Congress makes the following findings:
            (1) The Constitution vests Congress with the authority to 
        address the conditions of the indigenous, native people of the 
        United States.
            (2) Native Hawaiians, the native people of the Hawaiian 
        archipelago which is now part of the United States, are 
        indigenous, native people of the United States.
            (3) The United States has a special trust relationship to 
        promote the welfare of the native people of the United States, 
        including Native Hawaiians.
            (4) Under the treaty making power of the United States, 
        Congress exercised its constitutional authority to confirm a 
        treaty between the United States and the government that 
        represented the Hawaiian people, and from 1826 until 1893, the 
        United States recognized the independence of the Kingdom of 
        Hawaii, extended full diplomatic recognition to the Hawaiian 
        Government, and entered into treaties and conventions with the 
        Hawaiian monarchs to govern commerce and navigation in 1826, 
        1842, 1849, 1875, and 1887.
            (5) Pursuant to the provisions of the Hawaiian Homes 
        Commission Act, 1920 (42 Stat. 108, chapter 42), the United 
        States set aside 203,500 acres of land in the Federal territory 
        that later became the State of Hawaii to address the conditions 
        of Native Hawaiians.
            (6) By setting aside 203,500 acres of land for Native 
        Hawaiian homesteads and farms, the Act assists the Native 
        Hawaiian community in maintaining distinct native settlements 
        throughout the State of Hawaii.
            (7) Approximately 6,800 Native Hawaiian lessees and their 
        family members reside on Hawaiian Home Lands and approximately 
        18,000 Native Hawaiians who are eligible to reside on the Home 
        Lands are on a waiting list to receive assignments of land.
            (8) In 1959, as part of the compact admitting Hawaii into 
        the United States, Congress established the Ceded Lands Trust 
        for 5 purposes, 1 of which is the betterment of the conditions 
        of Native Hawaiians. Such trust consists of approximately 
        1,800,000 acres of land, submerged lands, and the revenues 
        derived from such lands, the assets of which have never been 
        completely inventoried or segregated.
            (9) Throughout the years, Native Hawaiians have repeatedly 
        sought access to the Ceded Lands Trust and its resources and 
        revenues in order to establish and maintain native settlements 
        and distinct native communities throughout the State.
            (10) The Hawaiian Home Lands and the Ceded Lands provide an 
        important foundation for the ability of the Native Hawaiian 
        community to maintain the practice of Native Hawaiian culture, 
        language, and traditions, and for the survival of the Native 
        Hawaiian people.
            (11) Native Hawaiians have maintained other distinctly 
        native areas in Hawaii.
            (12) On November 23, 1993, Public Law 103-150 (107 Stat. 
        1510) (commonly known as the Apology Resolution) was enacted 
        into law, extending an apology on behalf of the United States 
        to the Native people of Hawaii for the United States role in 
        the overthrow of the Kingdom of Hawaii.
            (13) The Apology Resolution acknowledges that the overthrow 
        of the Kingdom of Hawaii occurred with the active participation 
        of agents and citizens of the United States and further 
        acknowledges that the Native Hawaiian people never directly 
        relinquished their claims to their inherent sovereignty as a 
        people over their national lands to the United States, either 
        through their monarchy or through a plebiscite or referendum.
            (14) The Apology Resolution expresses the commitment of 
        Congress and the President to acknowledge the ramifications of 
        the overthrow of the Kingdom of Hawaii and to support 
        reconciliation efforts between the United States and Native 
        Hawaiians; and to have Congress and the President, through the 
        President's designated officials, consult with Native Hawaiians 
        on the reconciliation process as called for under the Apology 
        Resolution.
            (15) Despite the overthrow of the Hawaiian Government, 
        Native Hawaiians have continued to maintain their separate 
        identity as a distinct native community through the formation 
        of cultural, social, and political institutions, and to give 
        expression to their rights as native people to self-
        determination and self-governance as evidenced through their 
        participation in the Office of Hawaiian Affairs.
            (16) Native Hawaiians also give expression to their rights 
        as native people to self-determination and self-governance 
        through the provision of governmental services to Native 
        Hawaiians, including the provision of health care services, 
        educational programs, employment and training programs, 
        children's services, conservation programs, fish and wildlife 
        protection, agricultural programs, native language immersion 
        programs and native language immersion schools from 
        kindergarten through high school, as well as college and 
master's degree programs in native language immersion instruction, and 
traditional justice programs, and by continuing their efforts to 
enhance Native Hawaiian self-determination and local control.
            (17) Native Hawaiians are actively engaged in Native 
        Hawaiian cultural practices, traditional agricultural methods, 
        fishing and subsistence practices, maintenance of cultural use 
        areas and sacred sites, protection of burial sites, and the 
        exercise of their traditional rights to gather medicinal plants 
        and herbs, and food sources.
            (18) The Native Hawaiian people wish to preserve, develop, 
        and transmit to future Native Hawaiian generations their 
        ancestral lands and Native Hawaiian political and cultural 
        identity in accordance with their traditions, beliefs, customs 
        and practices, language, and social and political institutions, 
        and to achieve greater self-determination over their own 
        affairs.
            (19) This Act provides for a process within the framework 
        of Federal law for the Native Hawaiian people to exercise their 
        inherent rights as a distinct aboriginal, indigenous, native 
        community to reorganize a Native Hawaiian governing entity for 
        the purpose of giving expression to their rights as native 
        people to self-determination and self-governance.
            (20) The United States has declared that--
                    (A) the United States has a special responsibility 
                for the welfare of the native peoples of the United 
                States, including Native Hawaiians;
                    (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; and
                    (C) Congress has also delegated broad authority to 
                administer a portion of the Federal trust 
                responsibility to the State of Hawaii.
            (21) The United States has recognized and reaffirmed the 
        special trust relationship with the Native Hawaiian people 
        through the enactment of the Act entitled ``An Act to provide 
        for the admission of the State of Hawaii into the Union'', 
        approved March 18, 1959 (Public Law 86-3; 73 Stat. 4) by--
                    (A) ceding to the State of Hawaii title to the 
                public lands formerly held by the United States, and 
                mandating that those lands be held in public trust for 
                5 purposes, one of which is for the betterment of the 
                conditions of Native Hawaiians; and
                    (B) transferring the United States responsibility 
                for the administration of the Hawaiian Home Lands to 
                the State of Hawaii, but retaining the authority to 
                enforce the trust, including the exclusive right of the 
                United States to consent to any actions affecting the 
                lands which comprise the corpus of the trust and any 
                amendments to the Hawaiian Homes Commission Act, 1920 
                (42 Stat. 108, chapter 42) that are enacted by the 
                legislature of the State of Hawaii affecting the 
                beneficiaries under the Act.
            (22) The United States continually has recognized and 
        reaffirmed that--
                    (A) Native Hawaiians have a cultural, historic, and 
                land-based link to the aboriginal, native people who 
                exercised sovereignty over the Hawaiian Islands;
                    (B) Native Hawaiians have never relinquished their 
                claims to sovereignty or their sovereign lands;
                    (C) the United States extends services to Native 
                Hawaiians because of their unique status as the 
                aboriginal, native people of a once sovereign nation 
                with whom the United States has a political and legal 
                relationship; and
                    (D) the special trust relationship of American 
                Indians, Alaska Natives, and Native Hawaiians to the 
                United States arises out of their status as aboriginal, 
                indigenous, native people of the United States.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Aboriginal, indigenous, native people.--The term 
        ``aboriginal, indigenous, native people'' means those people 
        whom Congress has recognized as the original inhabitants of the 
        lands and who exercised sovereignty prior to European contact 
        in the areas that later became part of the United States.
            (2) Apology resolution.--The term ``Apology Resolution'' 
        means Public Law 103-150 (107 Stat. 1510), a joint resolution 
        extending an apology to Native Hawaiians on behalf of the 
        United States for the participation of agents of the United 
        States  in the January 17, 1893, overthrow of the Kingdom of 
Hawaii.
            (3) Ceded lands.--The term ``ceded lands'' means those 
        lands which were ceded to the United States by the Republic of 
        Hawaii under the Joint Resolution to provide for annexing the 
        Hawaiian Islands to the United States of July 7, 1898 (30 Stat. 
        750), and which were later transferred to the State of Hawaii 
        in the Act entitled ``An Act to provide for the admission of 
        the State of Hawaii into the Union'' approved March 18, 1959 
        (Public Law 86-3; 73 Stat. 4).
            (4) Indigenous, native people.--The term ``indigenous, 
        native people'' means the lineal descendants of the aboriginal, 
        indigenous, native people of the United States.
            (5) Interagency coordinating group.--The term ``Interagency 
        Coordinating Group'' means the Native Hawaiian Interagency 
        Coordinating Group established under section 5.
            (6) Native hawaiian.--
                    (A) Prior to the recognition by the United States 
                of the Native Hawaiian governing entity, the term 
                ``Native Hawaiian'' means the indigenous, native people 
                of Hawaii who are the direct lineal descendants of the 
                aboriginal, indigenous, native people who resided in 
                the islands that now comprise the State of Hawaii on or 
before January 1, 1893, and who occupied and exercised sovereignty in 
the Hawaiian archipelago, including the area that now constitutes the 
State of Hawaii, and includes all Native Hawaiians who were eligible in 
1921 for the programs authorized by the Hawaiian Homes Commission Act 
(42 Stat. 108, chapter 42) and their lineal descendants.
                    (B) Following the recognition by the United States 
                of the Native Hawaiian governing entity, the term 
                ``Native Hawaiian'' shall have the meaning given to 
                such term in the organic governing documents of the 
                Native Hawaiian governing entity.
            (7) Native hawaiian governing entity.--The term ``Native 
        Hawaiian governing entity'' means the governing entity 
        organized by the Native Hawaiian people.
            (8) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.

SEC. 3. UNITED STATES POLICY AND PURPOSE.

    (a) Policy.--The United States reaffirms that--
            (1) Native Hawaiians are a unique and distinct, indigenous, 
        native people, with whom the United States has a political and 
        legal relationship;
            (2) the United States has a special trust relationship to 
        promote the welfare of Native Hawaiians;
            (3) Congress possesses the authority under the Constitution 
        to enact legislation to address the conditions of Native 
        Hawaiians and has exercised this authority through the 
        enactment of--
                    (A) the Hawaiian Homes Commission Act, 1920 (42 
                Stat. 108, chapter 42);
                    (B) the Act entitled ``An Act to provide for the 
                admission of the State of Hawaii into the Union'', 
                approved March 18, 1959 (Public Law 86-3; 73 Stat. 4); 
                and
                    (C) more than 150 other Federal laws addressing the 
                conditions of Native Hawaiians;
            (4) Native Hawaiians have--
                    (A) an inherent right to autonomy in their internal 
                affairs;
                    (B) an inherent right of self-determination and 
                self-governance; and
                    (C) the right to reorganize a Native Hawaiian 
                governing entity; and
            (5) the United States shall continue to engage in a process 
        of reconciliation and political relations with the Native 
        Hawaiian people.
    (b) Purpose.--It is the intent of Congress that the purpose of this 
Act is to provide a process for the recognition by the United States of 
a Native Hawaiian governing entity for purposes of continuing a 
government-to-government relationship.

SEC. 4. ESTABLISHMENT OF THE UNITED STATES OFFICE FOR NATIVE HAWAIIAN 
              RELATIONS.

    (a) In General.--There is established within the Office of the 
Secretary the United States Office for Native Hawaiian Relations.
    (b) Duties of the Office.--The United States Office for Native 
Hawaiian Relations shall--
            (1) effectuate and coordinate the trust relationship 
        between the Native Hawaiian people and the United States, and 
        upon the recognition of the Native Hawaiian governing entity by 
        the United States, between the Native Hawaiian governing entity 
        and the United States through the Secretary, and with all other 
        Federal agencies;
            (2) continue the process of reconciliation with the Native 
        Hawaiian people, and upon the recognition of the Native 
        Hawaiian governing entity by the United States, continue the 
        process of reconciliation with the Native Hawaiian governing 
        entity;
            (3) fully integrate the principle and practice of 
        meaningful, regular, and appropriate consultation with the 
        Native Hawaiian governing entity by providing timely notice to, 
        and consulting with the Native Hawaiian people and the Native 
        Hawaiian governing entity prior to taking any actions that may 
        have the potential to significantly affect Native Hawaiian 
        resources, rights, or lands;
            (4) consult with the Interagency Coordinating Group, other 
        Federal agencies, and with relevant agencies of the State of 
        Hawaii on policies, practices, and proposed actions affecting 
        Native Hawaiian resources, rights, or lands; and
            (5) prepare and submit to the Committee on Indian Affairs 
        and the Committee on Energy and Natural Resources of the 
        Senate, and the Committee on Resources of the House of 
        Representatives an annual report detailing the activities of 
        the Interagency Coordinating Group that are undertaken with 
        respect to the continuing process of reconciliation and to 
        effect meaningful consultation with the Native Hawaiian 
        governing entity and providing recommendations for any 
        necessary changes to existing  Federal statutes or regulations 
promulgated under the authority of Federal law.

SEC. 5. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.

    (a) Establishment.--In recognition of the fact that Federal 
programs authorized to address the conditions of Native Hawaiians are 
largely administered by Federal agencies other than the Department of 
the Interior, there is established an interagency coordinating group to 
be known as the ``Native Hawaiian Interagency Coordinating Group''.
    (b) Composition.--The Interagency Coordinating Group shall be 
composed of officials, to be designated by the President, from--
            (1) each Federal agency that administers Native Hawaiian 
        programs, establishes or implements policies that affect Native 
        Hawaiians, or whose actions may significantly or uniquely 
        impact on Native Hawaiian resources, rights, or lands; and
            (2) the United States Office for Native Hawaiian Relations 
        established under section 4.
    (c) Lead Agency.--The Department of the Interior shall serve as the 
lead agency of the Interagency Coordinating Group, and meetings of the 
Interagency Coordinating Group shall be convened by the lead agency.
    (d) Duties.--The responsibilities of the Interagency Coordinating 
Group shall be--
            (1) the coordination of Federal programs and policies that 
        affect Native Hawaiians or actions by any agency or agencies of 
        the Federal Government which may significantly or uniquely 
        impact on Native Hawaiian resources, rights, or lands;
            (2) to assure that each Federal agency develops a policy on 
        consultation with the Native Hawaiian people, and upon 
        recognition of the Native Hawaiian governing entity by the 
        United States, consultation with the Native Hawaiian governing 
        entity; and
            (3) to assure the participation of each Federal agency in 
        the development of the report to Congress authorized in section 
        4(b)(5).

SEC. 6. PROCESS FOR THE RECOGNITION OF THE NATIVE HAWAIIAN GOVERNING 
              ENTITY.

    (a) Recognition of the Native Hawaiian Governing Entity.--The right 
of the Native Hawaiian people to organize for their common welfare and 
to adopt appropriate organic governing documents is hereby recognized 
by the United States.
    (b) Process for Recognition.--
            (1) Submittal of organic governing documents.--Following 
        the organization of the Native Hawaiian governing entity, the 
        adoption of organic governing documents, and the election of 
        officers of the Native Hawaiian governing entity, the duly 
        elected officers of the Native Hawaiian governing entity shall 
        submit the organic governing documents of the Native Hawaiian 
        governing entity to the Secretary.
            (2) Certifications.--
                    (A) In general.--Within 90 days of the date that 
                the duly elected officers of the Native Hawaiian 
                governing entity submit the organic governing documents 
                to the Secretary, the Secretary shall certify that the 
                organic governing documents--
                            (i) establish the criteria for citizenship 
                        in the Native Hawaiian governing entity;
                            (ii) were adopted by a majority vote of the 
                        citizens of the Native Hawaiian governing 
                        entity;
                            (iii) provide for the exercise of 
                        governmental authorities by the Native Hawaiian 
                        governing entity;
                            (iv) provide for the Native Hawaiian 
                        governing entity to negotiate with Federal, 
                        State, and local governments, and other 
                        entities;
                            (v) prevent the sale, disposition, lease, 
                        or encumbrance of lands, interests in lands, or 
                        other assets of the Native Hawaiian governing 
                        entity without the consent of the Native 
                        Hawaiian governing entity;
                            (vi) provide for the protection of the 
                        civil rights of the citizens of the Native 
                        Hawaiian governing entity and all persons 
                        subject to the authority of the Native Hawaiian 
                        governing entity, and ensure that the Native 
                        Hawaiian governing entity exercises its 
                        authority consistent with the requirements of 
                        section 202 of the Act of April 11, 1968 (25 
                        U.S.C. 1302); and
                            (vii) are consistent with applicable 
                        Federal law and the special trust relationship 
                        between the United States and the indigenous 
                        native people of the United States.
                    (B) By the secretary.--Within 90 days of the date 
                that the duly elected officers of the Native Hawaiian 
                governing entity submit the organic governing documents 
                to the Secretary, the Secretary shall certify that the 
                State of Hawaii supports the recognition of 
                <DELETED>the</DELETED> a Native Hawaiian governing 
                entity by the United States as evidenced by a 
                resolution or act of the Hawaii State legislature.
                    (C) Resubmission in case of noncompliance with 
                federal law.--
                            (i) Resubmission by the secretary.--If the 
                        Secretary determines that the organic governing 
                        documents, or any part thereof, are not 
                        consistent with applicable Federal law, the 
                        Secretary shall resubmit the organic governing 
                        documents to the duly elected officers of the 
                        Native Hawaiian governing entity along with a 
                        justification for each of the Secretary's 
                        findings as to why the provisions are not 
                        consistent with such law.
                            (ii) Amendment and resubmission by the 
                        native hawaiian governing entity.--If the 
                        organic governing documents are resubmitted to 
                        the duly elected officers of the Native 
                        Hawaiian governing entity by the Secretary 
                        under clause (i), the duly elected officers of 
                        the Native Hawaiian governing entity shall--
                                    (I) amend the organic governing 
                                documents to ensure that the documents 
                                comply with applicable Federal law; and
                                    (II) resubmit the amended organic 
                                governing documents to the Secretary 
                                for certification in accordance with 
                                the requirements of this paragraph.
                    (D) Certifications deemed made.--The certifications 
                authorized in subparagraph (B) shall be deemed to have 
                been made if the Secretary has not acted within 90 days 
                of the date that the duly elected officers of the 
                Native Hawaiian governing entity have submitted the 
                organic governing documents of the Native Hawaiian 
                governing entity to the Secretary.
            (3) Federal recognition.--Notwithstanding any other 
        provision of law, upon the election of the officers of the 
        Native Hawaiian governing entity and the certifications by the 
        Secretary required under paragraph (1), the United States 
        hereby extends Federal recognition to the Native Hawaiian 
        governing entity as the representative governing body of the 
        Native Hawaiian people.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated such sums as may be 
necessary to carry out the activities authorized in this Act.

SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS.

    (a) Reaffirmation.--The delegation by the United States of 
authority to the State of Hawaii to address the conditions of the 
indigenous, native people of Hawaii contained in the Act entitled ``An 
Act to provide for the admission of the State of Hawaii into the 
Union'' approved March 18, 1959 (Public Law 86-3; 73 Stat. 5) is hereby 
reaffirmed.
    (b) Negotiations.--Upon the Federal recognition of the Native 
Hawaiian governing entity by the United States, the United States is 
authorized to negotiate and enter into an agreement with the State of 
Hawaii and the Native Hawaiian governing entity regarding the transfer 
of lands, resources, and assets dedicated to Native Hawaiian use to the 
Native Hawaiian governing entity. Nothing in this Act is intended to 
serve as a settlement of any claims against the United States.

SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

    (a) Indian Gaming Regulatory Act.--Nothing contained in this Act 
shall be construed as an authorization for the Native Hawaiian 
governing entity to conduct gaming activities under the authority of 
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
    (b) Bureau of Indian Affairs.--Nothing contained in this Act shall 
be construed as an authorization for eligibility to participate in any 
programs and services provided by the Bureau of Indian Affairs for any 
persons not otherwise eligible for such programs or services.

SEC. 10. SEVERABILITY.

    In the event that any section or provision of this Act is held 
invalid, it is the intent of Congress that the remaining sections or 
provisions of this Act shall continue in full force and effect.




                                                       Calendar No. 165

107th CONGRESS

  1st Session

                                 S. 746

                          [Report No. 107-66]

_______________________________________________________________________

                                 A BILL

Expressing the policy of the United States regarding the United States 
  relationship with Native Hawaiians and to provide a process for the 
   recognition by the United States of the Native Hawaiian governing 
                    entity, and for other purposes.

_______________________________________________________________________

                           September 21, 2001

                       Reported with an amendment