[Congressional Record Volume 151, Number 5 (Tuesday, January 25, 2005)]
[Senate]
[Pages S454-S459]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself and Mr. Inouye):
  S. 147. A bill to express the policy of the United State 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; to the Committee on Indian Affairs.
  Mr. AKAKA. Mr. President, I rise today with the senior Senator from 
Hawaii to introduce the Native Hawaiian Government Reorganization Act 
of 2005. This is bipartisan legislation that we have been working on 
with our colleagues in Hawaii's Congressional delegation for the past 6 
years. During the past 2 years, we have worked closely with Hawaii's 
Governor, Linda Lingle, Hawaii's first Republican governor in 40 years, 
to get this legislation enacted. We have also worked closely with the 
Hawaii State legislature which has passed two resolutions unanimously 
in support of Federal Recognition for Native Hawaiians. I mention this, 
to underscore the fact that this is bipartisan legislation.
  The Native Hawaiian Government Reorganization Act of 2005 does three 
things:
  (1) It authorizes the Office of Native Hawaiian Relations in the 
Department of the Interior to serve as a liaison between Native 
Hawaiians and the federal government. Funding for Native Hawaiian 
programs currently administered by the Departments of Health and Human 
Services, HHS, Education, or Housing and Urban Development, HUD, would 
continue to be administered by those agencies.
  (2) It establishes the Native Hawaiian Interagency Coordinating 
Group--an interagency group to be composed of federal officials from 
agencies which administer Native Hawaiian programs and services. Many 
are not aware that Native Hawaiians have their own programs which are 
currently administered by different agencies in the Federal Government. 
This group would encourage communication and collaboration between the 
Federal agencies working with Native Hawaiians.
  (3) It establishes a process for the reorganization of the Native 
Hawaiian governing entity. While Congress has traditionally treated 
Native Hawaiians in a manner parallel to American Indians and Alaska 
Natives, the formal policy of self-governance and self determination 
has not been extended to Native Hawaiians. The bill establishes a 
process for the reorganization of the Native Hawaiian governing entity 
for the purposes of Federal recognition. The bill itself does not 
extend Federal recognition--it authorizes the process for Federal 
recognition.
  Following recognition of the Native Hawaiian government, negotiations 
will ensue between the Native Hawaiian governing entity and Federal and 
State Governments over matters such as the transfer of lands and 
natural resources; the exercise of governmental authority over any 
transferred lands, natural resources and other assets, including land 
use; the exercise of civil and criminal jurisdiction, and the 
delegation of governmental powers and authorities to the Native 
Hawaiian governing entity by the Federal and State Governments. This 
reflects the cooperation between the Federal and State governments and 
the Native Hawaiian governing entity. It also reflects a new paradigm 
where recognition provides the governing entity with a seat at the 
table to negotiate such matters.
  The bill will not diminish funding for American Indians and Alaska 
Natives because Native Hawaiians have their own education, health and 
housing programs which have been separately funded since their creation 
in 1988.
  Finally, the bill does not authorize gaming in Hawaii.
  Some have characterized this bill as race-based legislation. As 
indigenous peoples, Native Hawaiians never relinquished their inherent 
rights to sovereignty. We were a government that was overthrown. While 
the history of the Native Hawaiian government ended in 1893 with great 
emotion and despair, inspired by the dignity and grace of Queen 
Liliuokalani, Native Hawaiians have preserved their culture, tradition, 
subsistence rights, language, and distinct communities. We have tried 
to hold on to our homeland. Hawaii, for us, is our homeland.
  I am Native Hawaiian and Chinese. I appreciate the culture and 
ethnicity of my ancestors. I can trace my Chinese roots back to Fukien 
Province in China. My Native Hawaiian roots, however, are in Hawaii 
because it is our Hawaiian homeland.
  My Chinese ancestors came to Hawaii to build a better life. My Native 
Hawaiian grandparents and parents had America come into their homeland 
and forever change their lives. This is a profound difference.
  I am proud to be an American, and I am proud to have served my 
country in the military. As long as Hawaii is a part of the United 
States, however, I believe the United States must fulfill its 
responsibility to Hawaii's indigenous peoples. I believe it is 
imperative to clarify the existing legal and political relationship 
between the United States and Native Hawaiians by providing Native 
Hawaiians with Federal recognition for the purposes of a government-to-
government relationship. Therefore, because this legislation is based 
on the political and legal relationship between the United States and 
its indigenous peoples, which has been upheld for many, many years, by 
the United States Supreme Court, based on the Indian Commerce Clause, I 
strenuously disagree with the mischaracterization of this legislation 
as race-based.
  Why is this bill so important? This bill is critical for the people 
of Hawaii because of the monumental step forward it provides for 
Hawaii's indigenous peoples. As many of my colleagues know, the Kingdom 
of Hawaii was overthrown in 1893 with the assistance of agents from the 
United States. In 1993, we enacted Public Law 103-150, commonly 
referred to as the Apology Resolution, which acknowledged the illegal 
overthrow of the Kingdom of Hawaii and the deprivation of the rights of 
Native Hawaiians to self determination. The Apology Resolution 
committed the United States to acknowledge the ramifications of the 
overthrow in order to provide a proper foundation of reconciliation 
between the United States and the Native Hawaiian people.
  This bill provides a step forward in the process of reconciliation. 
The bill establishes the structure for Native Hawaiians and non-Native 
Hawaiians to discuss longstanding issues resulting from the overthrow 
of the Kingdom of Hawaii. The structure is the negotiation process 
between the federally recognized Native Hawaiian government and the 
Federal and State governments that I referred to earlier in my 
statement.
  This discussion has been assiduously avoided because no one has known 
how to address or deal with the emotions that are involved when these 
matters are discussed. There has been no structured process. Instead, 
there has been fear as to what the discussion would entail, causing 
people to avoid and shirk the issues. Such behavior has led

[[Page S455]]

to high levels of anger and frustration as well as misunderstanding 
between Native Hawaiians and non-Native Hawaiians.
  As a young child, I was discouraged from speaking Hawaiian because I 
was told that I needed to succeed in the Western world. My parents 
witnessed the overthrow and lived during a time when all things 
Hawaiian, including language, which they both spoke fluently, hula, 
custom, and tradition, were viewed unfavorably and discouraged. I, 
therefore, was discouraged from speaking the language and practicing 
Hawaiian customs and tradition. My experience mirrors that of my 
generation of Hawaiians.
  My generation learned to accept what was ingrained into us by our 
parents, and while we were concerned about the longstanding issues 
resulting from the overthrow dealing with political status and lands, 
we were told not to ``make waves'' by addressing these matters. My 
children, however, have had the advantage of growing up during the 
Hawaiian renaissance, a period of revival for Hawaiian language, 
custom, and tradition. My grandchildren, benefitting from this revival, 
can speak Hawaiian and know so much about our history.
  It is this generation, however, that is growing impatient with the 
lack of progress in efforts to resolve longstanding issues. It is this 
generation that does not understand why we have not discussed these 
matters. It is this generation that cannot believe that we, as Native 
Hawaiians, have let the situation continue for 110 years.
  It is an active minority within this generation, spurred by 
frustration and sadness, that embraces independence from the United 
States.
  It is for this generation that I bring this bill forward to ensure 
that there is a structured process to address these issues.
  My point is that Hawaii's people, both Native Hawaiians and non-
Native Hawaiians, are no longer willing to pretend that the 
longstanding issues resulting from the overthrow do not exist. We need 
the structured process that this bill provides, first in reorganizing 
the Native Hawaiian governing entity, and second by providing that 
entity with the opportunity to negotiate and resolve issues with the 
Federal and State governments to alleviate the growing mistrust, 
misunderstanding, anger, and frustration about these matters in Hawaii. 
This can only be done through a government-to-government relationship.
  This bill is of significant importance in Hawaii. It has no impact on 
any of the other states. Hawaii's entire Congressional delegation 
supports this legislation. Our Governor, the first Republican to be 
elected in 40 years, supports this legislation. Indeed, it is her 
Number One Federal priority. The Hawaii State Legislature supports this 
legislation. And most importantly, a clear majority of the Native 
Hawaiian people and the people of Hawaii support this legislation.
  I ask you to stand with me and my esteemed friend, Hawaii's revered 
senior Senator, our two House members, our Governor, the Hawaii State 
legislature, and the people of Hawaii to enact this critical measure 
for my state.
  I ask unanimous consent that the text of my bill be printed in the 
Record.
  Mr. AKAKA. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 147

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Native Hawaiian Government 
     Reorganization Act of 2005''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (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 that is now part of the United States, are 
     indigenous, native people of the United States;
       (3) the United States has a special political and legal 
     responsibility 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 
     treaties between the United States and the Kingdom of Hawaii, 
     and from 1826 until 1893, the United States--
       (A) recognized the sovereignty of the Kingdom of Hawaii;
       (B) accorded full diplomatic recognition to the Kingdom of 
     Hawaii; and
       (C) entered into treaties and conventions with the Kingdom 
     of Hawaii to govern commerce and navigation in 1826, 1842, 
     1849, 1875, and 1887;
       (5) pursuant to the Hawaiian Homes Commission Act, 1920 (42 
     Stat. 108, chapter 42), the United States set aside 
     approximately 203,500 acres of land to address the conditions 
     of Native Hawaiians in the Federal territory that later 
     became the State of Hawaii;
       (6) by setting aside 203,500 acres of land for Native 
     Hawaiian homesteads and farms, the Hawaiian Homes Commission 
     Act assists the members of the Native Hawaiian community in 
     maintaining distinct native settlements throughout the State 
     of Hawaii;
       (7) approximately 6,800 Native Hawaiian families reside on 
     the Hawaiian Home Lands and approximately 18,000 Native 
     Hawaiians who are eligible to reside on the Hawaiian Home 
     Lands are on a waiting list to receive assignments of 
     Hawaiian Home Lands;
       (8)(A) in 1959, as part of the compact with the United 
     States admitting Hawaii into the Union, Congress established 
     a public trust (commonly known as the ``ceded lands trust''), 
     for 5 purposes, 1 of which is the betterment of the 
     conditions of Native Hawaiians;
       (B) the public trust consists of lands, including submerged 
     lands, natural resources, and the revenues derived from the 
     lands; and
       (C) the assets of this public trust have never been 
     completely inventoried or segregated;
       (9) Native Hawaiians have continuously sought access to the 
     ceded lands in order to establish and maintain native 
     settlements and distinct native communities throughout the 
     State;
       (10) the Hawaiian Home Lands and other 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 and economic self-sufficiency of the Native Hawaiian 
     people;
       (11) Native Hawaiians continue to maintain 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 to the United States their claims to 
     their inherent sovereignty as a people over their national 
     lands, either through the Kingdom of Hawaii or through a 
     plebiscite or referendum;
       (14) the Apology Resolution expresses the commitment of 
     Congress and the President--
       (A) to acknowledge the ramifications of the overthrow of 
     the Kingdom of Hawaii;
       (B) to support reconciliation efforts between the United 
     States and Native Hawaiians; and
       (C) to consult with Native Hawaiians on the reconciliation 
     process as called for in the Apology Resolution;
       (15) despite the overthrow of the government of the Kingdom 
     of Hawaii, Native Hawaiians have continued to maintain their 
     separate identity as a distinct native community through 
     cultural, social, and political institutions, and to give 
     expression to their rights as native people to self-
     determination, self-governance, and economic self-
     sufficiency;
       (16) Native Hawaiians have also given expression to their 
     rights as native people to self-determination, self-
     governance, and economic self-sufficiency--
       (A) through the provision of governmental services to 
     Native Hawaiians, including the provision of--
       (i) health care services;
       (ii) educational programs;
       (iii) employment and training programs;
       (iv) economic development assistance programs;
       (v) children's services;
       (vi) conservation programs;
       (vii) fish and wildlife protection;
       (viii) agricultural programs;
       (ix) native language immersion programs;
       (x) native language immersion schools from kindergarten 
     through high school;
       (xi) college and master's degree programs in native 
     language immersion instruction;
       (xii) traditional justice programs, and
       (B) 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 generations of Native Hawaiians their 
     lands and Native Hawaiian political and cultural identity in 
     accordance with their traditions, beliefs, customs and 
     practices, language, and social and political institutions, 
     to control

[[Page S456]]

     and manage their own lands, including ceded lands, and to 
     achieve greater self-determination over their own affairs;
       (19) this Act provides a process within the framework of 
     Federal law for the Native Hawaiian people to exercise their 
     inherent rights as a distinct, 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) Congress--
       (A) has declared that the United States has a special 
     responsibility for the welfare of the native peoples of the 
     United States, including Native Hawaiians;
       (B) has identified Native Hawaiians as a distinct group of 
     indigenous, native people of the United States within the 
     scope of its authority under the Constitution, and has 
     enacted scores of statutes on their behalf; and
       (C) has delegated broad authority to the State of Hawaii to 
     administer some of the United States' responsibilities as 
     they relate to the Native Hawaiian people and their lands;
       (21) the United States has recognized and reaffirmed the 
     special political and legal 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 as a public trust for 5 purposes, 1 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 that 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 has continually recognized and 
     reaffirmed that--
       (A) Native Hawaiians have a cultural, historic, and land-
     based link to the aboriginal, indigenous, 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 indigenous, 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; and
       (23) the State of Hawaii supports the reaffirmation of the 
     political and legal relationship between the Native Hawaiian 
     governing entity and the United States as evidenced by 2 
     unanimous resolutions enacted by the Hawaii State Legislature 
     in the 2000 and 2001 sessions of the Legislature and by the 
     testimony of the Governor of the State of Hawaii before the 
     Committee on Indian Affairs of the Senate on February 25, 
     2003.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Aboriginal, indigenous, native people.--The term 
     ``aboriginal, indigenous, native people'' means people whom 
     Congress has recognized as the original inhabitants of the 
     lands that later became part of the United States and who 
     exercised sovereignty in the areas that later became part of 
     the United States.
       (2) Adult member.--The term ``adult member'' means a Native 
     Hawaiian who has attained the age of 18 and who elects to 
     participate in the reorganization of the Native Hawaiian 
     governing entity.
       (3) 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.
       (4) Commission.--The term ``commission'' means the 
     Commission established under section 7(b) to provide for the 
     certification that those adult members of the Native Hawaiian 
     community listed on the roll meet the definition of Native 
     Hawaiian set forth in paragraph (8).
       (5) Council.--The term ``council'' means the Native 
     Hawaiian Interim Governing Council established under section 
     7(c)(2).
       (6) Indigenous, native people.--The term ``indigenous, 
     native people'' means the lineal descendants of the 
     aboriginal, indigenous, native people of the United States.
       (7) Interagency coordinating group.--The term ``Interagency 
     Coordinating Group'' means the Native Hawaiian Interagency 
     Coordinating Group established under section 6.
       (8) Native hawaiian.--For the purpose of establishing the 
     roll authorized under section 7(c)(1) and before the 
     reaffirmation of the political and legal relationship between 
     the United States and the Native Hawaiian governing entity, 
     the term ``Native Hawaiian'' means--
       (A) an individual who is one of the indigenous, native 
     people of Hawaii and who is a direct lineal descendant of the 
     aboriginal, indigenous, native people who--
       (i) resided in the islands that now comprise the State of 
     Hawaii on or before January 1, 1893; and
       (ii) occupied and exercised sovereignty in the Hawaiian 
     archipelago, including the area that now constitutes the 
     State of Hawaii; or
       (B) an individual who is one of the indigenous, native 
     people of Hawaii and who was eligible in 1921 for the 
     programs authorized by the Hawaiian Homes Commission Act (42 
     Stat. 108, chapter 42) or a direct lineal descendant of that 
     individual.
       (9) Native hawaiian governing entity.--The term ``Native 
     Hawaiian Governing Entity'' means the governing entity 
     organized by the Native Hawaiian people pursuant to this Act.
       (10) Office.--The term ``Office'' means the United States 
     Office for Native Hawaiian Relations established by section 
     5(a).
       (11) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.

     SEC. 4. 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 special 
     political and legal relationship;
       (2) the United States has a special political and legal 
     relationship with the Native Hawaiian people which includes 
     promoting the welfare of Native Hawaiians;
       (3) Congress possesses the authority under the 
     Constitution, including but not limited to Article I, section 
     8, clause 3, 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;
       (C) the right to reorganize a Native Hawaiian governing 
     entity; and
       (D) the right to become economically self-sufficient; and
       (5) the United States shall continue to engage in a process 
     of reconciliation and political relations with the Native 
     Hawaiian people.
       (b) Purpose.--The purpose of this Act is to provide a 
     process for the reorganization of the Native Hawaiian 
     governing entity and the reaffirmation of the political and 
     legal relationship between the United States and the Native 
     Hawaiian governing entity for purposes of continuing a 
     government-to-government relationship.

     SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.

       (a) Establishment.--There is established within the Office 
     of the Secretary, the United States Office for Native 
     Hawaiian Relations.
       (b) Duties.--The Office shall--
       (1) continue the process of reconciliation with the Native 
     Hawaiian people in furtherance of the Apology Resolution;
       (2) upon the reaffirmation of the political and legal 
     relationship between the Native Hawaiian governing entity and 
     the United States, effectuate and coordinate the special 
     political and legal relationship between the Native Hawaiian 
     governing entity and the United States through the Secretary, 
     and with all other Federal agencies;
       (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 before 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, the Governor of the State of Hawaii and 
     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 Federal law or regulations promulgated 
     under the authority of Federal law.

     SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.

       (a) Establishment.--In recognition 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--

[[Page S457]]

       (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 Native Hawaiian resources, rights, or lands; 
     and
       (2) the Office.
       (c) Lead Agency.--
       (1) In general.--The Department of the Interior shall serve 
     as the lead agency of the Interagency Coordinating Group.
       (2) Meetings.--The Secretary shall convene meetings of the 
     Interagency Coordinating Group.
       (d) Duties.--The Interagency Coordinating Group shall--
       (1) coordinate Federal programs and policies that affect 
     Native Hawaiians or actions by any agency or agencies of the 
     Federal Government that may significantly or uniquely affect 
     Native Hawaiian resources, rights, or lands;
       (2) ensure that each Federal agency develops a policy on 
     consultation with the Native Hawaiian people, and upon the 
     reaffirmation of the political and legal relationship between 
     the Native Hawaiian governing entity and the United States, 
     consultation with the Native Hawaiian governing entity; and
       (3) ensure the participation of each Federal agency in the 
     development of the report to Congress authorized in section 
     5(b)(5).

     SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NATIVE HAWAIIAN 
                   GOVERNING ENTITY AND THE REAFFIRMATION OF THE 
                   POLITICAL AND LEGAL RELATIONSHIP BETWEEN THE 
                   UNITED STATES AND THE NATIVE HAWAIIAN GOVERNING 
                   ENTITY.

       (a) Recognition of the Native Hawaiian Governing Entity.--
     The right of the Native Hawaiian people to reorganize the 
     Native Hawaiian governing entity to provide for their common 
     welfare and to adopt appropriate organic governing documents 
     is recognized by the United States.
       (b) Commission.--
       (1) In general.--There is authorized to be established a 
     Commission to be composed of nine members for the purposes 
     of--
       (A) preparing and maintaining a roll of the adult members 
     of the Native Hawaiian community who elect to participate in 
     the reorganization of the Native Hawaiian governing entity; 
     and
       (B) certifying that the adult members of the Native 
     Hawaiian community proposed for inclusion on the roll meet 
     the definition of Native Hawaiian in paragraph (8) of section 
     3.
       (2) Membership.--
       (A) Appointment.--Within 180 days of the date of enactment 
     of this Act, the Secretary shall appoint the members of the 
     Commission in accordance with subclause (B). Any vacancy on 
     the Commission shall not affect its powers and shall be 
     filled in the same manner as the original appointment.
       (B) Requirements.--The members of the Commission shall be 
     Native Hawaiian, as defined in section 3(8), and shall have 
     expertise in the determination of Native Hawaiian ancestry 
     and lineal descendancy.
       (3) Expenses.--Each member of the Commission shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (4) Duties.--The Commission shall--
       (A) prepare and maintain a roll of the adult members of the 
     Native Hawaiian community who elect to participate in the 
     reorganization of the Native Hawaiian governing entity; and
       (B) certify that each of the adult members of the Native 
     Hawaiian community proposed for inclusion on the roll meets 
     the definition of Native Hawaiian in section 3(8).
       (5) Staff.--
       (A) In general.--The Commission may, without regard to the 
     civil service laws (including regulations), appoint and 
     terminate an executive director and such other additional 
     personnel as are necessary to enable the Commission to 
     perform the duties of the Commission.
       (B) Compensation.--
       (i) In general.--Except as provided in clause (ii), the 
     Commission may fix the compensation of the executive director 
     and other personnel without regard to the provisions of 
     chapter 51 and subchapter III of chapter 53 of title 5, 
     United States Code, relating to classification of positions 
     and General Schedule pay rates.
       (ii) Maximum rate of pay.--The rate of pay for the 
     executive director and other personnel shall not exceed the 
     rate payable for level V of the Executive Schedule under 
     section 5316 of title 5, United States Code.
       (6) Detail of federal government employees.--
       (A) In general.--An employee of the Federal Government may 
     be detailed to the Commission without reimbursement.
       (B) Civil service status.--The detail of the employee shall 
     be without interruption or loss of civil service status or 
     privilege.
       (7) Procurement of temporary and intermittent services.--
     The Commission may procure temporary and intermittent 
     services in accordance with section 3109(b) of title 5, 
     United States Code, at rates for individuals that do not 
     exceed the daily equivalent of the annual rate of basic pay 
     prescribed for level V of the Executive Schedule under 
     section 5316 of that title.
       (8) Expiration.--The Secretary shall dissolve the 
     Commission upon the reaffirmation of the political and legal 
     relationship between the Native Hawaiian governing entity and 
     the United States.
       (c) Process for the Reorganization of the Native Hawaiian 
     Governing Entity.--
       (1) Roll.--
       (A) Contents.--The roll shall include the names of the 
     adult members of the Native Hawaiian community who elect to 
     participate in the reorganization of the Native Hawaiian 
     governing entity and are certified to be Native Hawaiian as 
     defined in section 3(8) by the Commission.
       (B) Formation of roll.--Each adult member of the Native 
     Hawaiian community who elects to participate in the 
     reorganization of the Native Hawaiian governing entity shall 
     submit to the Commission documentation in the form 
     established by the Commission that is sufficient to enable 
     the Commission to determine whether the individual meets the 
     definition of Native Hawaiian in section 3(8).
       (C) Documentation.--The Commission shall--
       (i) identify the types of documentation that may be 
     submitted to the Commission that would enable the Commission 
     to determine whether an individual meets the definition of 
     Native Hawaiian in section 3(8);
       (ii) establish a standard format for the submission of 
     documentation; and
       (iii) publish information related to clauses (i) and (ii) 
     in the Federal Register;
       (D) Consultation.--In making determinations that each of 
     the adult members of the Native Hawaiian community proposed 
     for inclusion on the roll meets the definition of Native 
     Hawaiian in section 3(8), the Commission may consult with 
     Native Hawaiian organizations, agencies of the State of 
     Hawaii including but not limited to the Department of 
     Hawaiian Home Lands, the Office of Hawaiian Affairs, and the 
     State Department of Health, and other entities with expertise 
     and experience in the determination of Native Hawaiian 
     ancestry and lineal descendancy.
       (E) Certification and submittal of roll to secretary.--The 
     Commission shall--
       (i) submit the roll containing the names of the adult 
     members of the Native Hawaiian community who meet the 
     definition of Native Hawaiian in section 3(8) to the 
     Secretary within two years from the date on which the 
     Commission is fully composed; and
       (ii) certify to the Secretary that each of the adult 
     members of the Native Hawaiian community proposed for 
     inclusion on the roll meets the definition of Native Hawaiian 
     in section 3(8).
       (F) Publication.--Upon certification by the Commission to 
     the Secretary that those listed on the roll meet the 
     definition of Native Hawaiian in section 3(8), the Secretary 
     shall publish the roll in the Federal Register.
       (G) Appeal.--The Secretary may establish a mechanism for an 
     appeal for any person whose name is excluded from the roll 
     who claims to meet the definition of Native Hawaiian in 
     section 3(8) and to be 18 years of age or older.
       (H) Publication; update.--The Secretary shall--
       (i) publish the roll regardless of whether appeals are 
     pending;
       (ii) update the roll and the publication of the roll on the 
     final disposition of any appeal;
       (iii) update the roll to include any Native Hawaiian who 
     has attained the age of 18 and who has been certified by the 
     Commission as meeting the definition of Native Hawaiian in 
     section 3(8) after the initial publication of the roll or 
     after any subsequent publications of the roll.
       (I) Failure to act.--If the Secretary fails to publish the 
     roll, not later than 90 days after the date on which the roll 
     is submitted to the Secretary, the Commission shall publish 
     the roll notwithstanding any order or directive issued by the 
     Secretary or any other official of the Department of the 
     Interior to the contrary.
       (J) Effect of publication.--The publication of the initial 
     and updated roll shall serve as the basis for the eligibility 
     of adult members of the Native Hawaiian community whose names 
     are listed on those rolls to participate in the 
     reorganization of the Native Hawaiian governing entity.
       (2) Organization of the native hawaiian interim governing 
     council.--
       (A) Organization.--The adult members of the Native Hawaiian 
     community listed on the roll published under this section 
     may--
       (i) develop criteria for candidates to be elected to serve 
     on the Native Hawaiian Interim Governing Council;
       (ii) determine the structure of the Council; and
       (iii) elect members from individuals listed on the roll 
     published under this subsection to the Council.
       (B) Powers.--
       (i) In general.--The Council--

       (I) may represent those listed on the roll published under 
     this section in the implementation of this Act; and
       (II) shall have no powers other than powers given to the 
     Council under this Act.

       (ii) Funding.--The Council may enter into a contract with, 
     or obtain a grant from, any Federal or State agency to carry 
     out clause (iii).
       (iii) Activities.--

       (I) In general.--The Council may conduct a referendum among 
     the adult members of the Native Hawaiian community listed on 
     the roll published under this subsection for the purpose of 
     determining the proposed elements of the organic governing 
     documents of the Native Hawaiian governing entity, including 
     but not limited to--

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       (aa) the proposed criteria for citizenship of the Native 
     Hawaiian governing entity;
       (bb) the proposed powers and authorities to be exercised by 
     the Native Hawaiian governing entity, as well as the proposed 
     privileges and immunities of the Native Hawaiian governing 
     entity;
       (cc) the proposed civil rights and protection of the rights 
     of the citizens of the Native Hawaiian governing entity and 
     all persons affected by the exercise of governmental powers 
     and authorities of the Native Hawaiian governing entity; and
       (dd) other issues determined appropriate by the Council.

       (II) Development of organic governing documents.--Based on 
     the referendum, the Council may develop proposed organic 
     governing documents for the Native Hawaiian governing entity.
       (III) Distribution.--The Council may distribute to all 
     adult members of the Native Hawaiian community listed on the 
     roll published under this subsection--

       (aa) a copy of the proposed organic governing documents, as 
     drafted by the Council; and
       (bb) a brief impartial description of the proposed organic 
     governing documents;

       (IV) Elections.--The Council may hold elections for the 
     purpose of ratifying the proposed organic governing 
     documents, and on certification of the organic governing 
     documents by the Secretary in accordance with paragraph (4), 
     hold elections of the officers of the Native Hawaiian 
     governing entity pursuant to paragraph (5).

       (3) Submittal of organic governing documents.--Following 
     the reorganization of the Native Hawaiian governing entity 
     and the adoption of organic governing documents, the Council 
     shall submit the organic governing documents of the Native 
     Hawaiian governing entity to the Secretary.
       (4) Certifications.--
       (A) In general.--Within the context of the future 
     negotiations to be conducted under the authority of section 
     8(b)(1), and the subsequent actions by the Congress and the 
     State of Hawaii to enact legislation to implement the 
     agreements of the 3 governments, not later than 90 days after 
     the date on which the Council submits 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 adult members 
     of the Native Hawaiian community whose names are listed on 
     the roll published by the Secretary;
       (iii) provide authority for the Native Hawaiian governing 
     entity to negotiate with Federal, State, and local 
     governments, and other entities;
       (iv) provide for the exercise of governmental authorities 
     by the Native Hawaiian governing entity, including any 
     authorities that may be delegated to the Native Hawaiian 
     governing entity by the United States and the State of Hawaii 
     following negotiations authorized in section 8(b)(1) and the 
     enactment of legislation to implement the agreements of the 3 
     governments;
       (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 affected by the exercise of governmental powers and 
     authorities by the Native Hawaiian governing entity; and
       (vii) are consistent with applicable Federal law and the 
     special political and legal relationship between the United 
     States and the indigenous, native people of the United 
     States; provided that the provisions of Public Law 103-454, 
     25 U.S.C. 479a, shall not apply.
       (B) Resubmission in case of noncompliance with the 
     requirements of subparagraph (A).--
       (i) Resubmission by the secretary.--If the Secretary 
     determines that the organic governing documents, or any part 
     of the documents, do not meet all of the requirements set 
     forth in subparagraph (A), the Secretary shall resubmit the 
     organic governing documents to the Council, along with a 
     justification for each of the Secretary's findings as to why 
     the provisions are not in full compliance.
       (ii) Amendment and resubmission of organic governing 
     documents.--If the organic governing documents are 
     resubmitted to the Council by the Secretary under clause (i), 
     the Council shall--

       (I) amend the organic governing documents to ensure that 
     the documents meet all the requirements set forth in 
     subparagraph (A); and
       (II) resubmit the amended organic governing documents to 
     the Secretary for certification in accordance with this 
     paragraph.

       (C) Certifications deemed made.--The certifications under 
     paragraph (4) shall be deemed to have been made if the 
     Secretary has not acted within 90 days after the date on 
     which the Council has submitted the organic governing 
     documents of the Native Hawaiian governing entity to the 
     Secretary.
       (5) Elections.--On completion of the certifications by the 
     Secretary under paragraph (4), the Council may hold elections 
     of the officers of the Native Hawaiian governing entity.
       (6) Reaffirmation.--Notwithstanding any other provision of 
     law, upon the certifications required under paragraph (4) and 
     the election of the officers of the Native Hawaiian governing 
     entity, the political and legal relationship between the 
     United States and the Native Hawaiian governing entity is 
     hereby reaffirmed and the United States extends Federal 
     recognition to the Native Hawaiian governing entity as the 
     representative governing body of the Native Hawaiian people.

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

       (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. 4), is reaffirmed.
       (b) Negotiations.--
       (1) In general.--Upon the reaffirmation of the political 
     and legal relationship between the United States and the 
     Native Hawaiian governing entity, the United States and the 
     State of Hawaii may enter into negotiations with the Native 
     Hawaiian governing entity designed to lead to an agreement 
     addressing such matters as--
       (A) the transfer of lands, natural resources, and other 
     assets, and the protection of existing rights related to such 
     lands or resources;
       (B) the exercise of governmental authority over any 
     transferred lands, natural resources, and other assets, 
     including land use;
       (C) the exercise of civil and criminal jurisdiction;
       (D) the delegation of governmental powers and authorities 
     to the Native Hawaiian governing entity by the United States 
     and the State of Hawaii; and
       (E) any residual responsibilities of the United States and 
     the State of Hawaii.
       (2) Amendments to existing laws.--Upon agreement on any 
     matter or matters negotiated with the United States, the 
     State of Hawaii, and the Native Hawaiian governing entity, 
     the parties are authorized to submit--
       (A) to the Committee on Indian Affairs of the Senate, the 
     Committee on Energy and Natural Resources of the Senate, and 
     the Committee on Resources of the House of Representatives, 
     recommendations for proposed amendments to Federal law that 
     will enable the implementation of agreements reached between 
     the 3 governments; and
       (B) to the Governor and the legislature of the State of 
     Hawaii, recommendations for proposed amendments to State law 
     that will enable the implementation of agreements reached 
     between the 3 governments.
       (c) Claims.--
       (1) In general.--Nothing in this Act serves as a settlement 
     of any claim against the United States.
       (2) Statute of limitations.--Any claim against the United 
     States arising under Federal law that--
       (A) is in existence on the date of enactment of this Act;
       (B) is asserted by the Native Hawaiian governing entity on 
     behalf of the Native Hawaiian people; and
       (C) relates to the legal and political relationship between 
     the United States and the Native Hawaiian people;

     shall be brought in the court of jurisdiction over such 
     claims not later than 20 years after the date on which 
     Federal recognition is extended to the Native Hawaiian 
     governing entity under section 7(c)(6).

     SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

       (a) Indian Gaming Regulatory Act.--Nothing in this Act 
     shall be construed to authorize 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 provides 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 the 
     programs or services.

     SEC. 10. SEVERABILITY.

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

     SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as are 
     necessary to carry out this Act.

  Mr. INOUYE. Mr. President, I am pleased to join my colleague, Senator 
Akaka, as a cosponsor of the Native Hawaiian Government Reorganization 
Act.
  Having served on the Indian Affairs Committee for the past 27 years, 
I know that most of our colleagues are more familiar with conditions 
and circumstances in Indian country, and naturally, they bring their 
experience with Indian country to bear in considering this measure, 
which has been pending in the Senate for the past six years.
  Accordingly, Mr. President, I believe it is important that our 
colleagues understand what this bill seeks to accomplish as well as how 
it differs from legislation affecting Indian country.
  It is a little known fact that beginning in 1910 and since that time, 
the

[[Page S459]]

Congress has passed and the President has signed into law over 160 
Federal laws designed to address the conditions of Native Hawaiians.
  Thus, Federal laws which authorize the provision of health care, 
education, housing, and job training and employment services, as well 
as programs to provide for the preservation of the Native Hawaiian 
language, Native language immersion, Native cultural and grave 
protections and repatriation of Native sacred objects have been in 
place for decades.
  The Native Hawaiian programs do not draw upon funding that is 
appropriated for American Indians or Alaska Natives--there are separate 
authorizations for programs that are administered by different Federal 
agencies--not the Bureau of Indian Affairs or the Indian Health 
Service, for instance--and the Native Hawaiian program funds are not 
drawn from the Interior Appropriations Subcommittee account. Thus, they 
have no impact on the funding that is provided for the other 
indigenous, native people of the United States.
  However, unlike the native people residing on the mainland, Native 
Hawaiians have not been able to exercise their rights as Native people 
to self-determination or self-governance because their government was 
overthrown on January 17, 1893.
  This bill would provide a process for the reorganization of the 
Native Hawaiian government and the resumption of a political and legal 
relationship between that government and the government of the United 
States.
  Because the Native Hawaiian government is not an Indian tribe, the 
body of Federal Indian law that would otherwise customarily apply when 
the United States extends Federal recognition to an Indian tribal group 
does not apply.
  Thus, the bill provides authority for a process of negotiations 
amongst the United States, the State of Hawaii, and the reorganized 
Native Hawaiian government to address such matters as the exercise of 
civil and criminal jurisdiction by the respective governments, the 
transfer of land and natural resources and other assets, and the 
exercise of governmental authority over those lands, natural resources 
and other assets.
  Upon reaching agreement, the U.S. Congress and the legislature of 
State of Hawaii would have to enact legislation implementing the 
agreements of the three governments, including amendments that will 
necessarily have to be made to existing Federal law, such as the Hawaii 
Admissions Act and the Hawaiian Homes Commission Act, and to State law, 
including amendments to the Hawaii State Constitution, before any of 
the new governmental relationships and authorities can take effect.
  That is why concerns which are premised on the manner in which 
Federal Indian law provides for the respective governmental authorities 
of the state governments and Indian tribal governments simply don't 
apply in Hawaii.
  Our state government, both the Governor and the state legislature of 
Hawaii, fully support enactment of this measure. They will be at the 
table with the United States and the Native Hawaiian government to 
shape the relationships amongst governments that will best serve the 
needs and interests not only of the Native Hawaiian community but those 
of all of the citizens of Hawaii.
  Mr. President, we have every confidence that consistent with the 
Federal policy of the last 35 years, the restoration of the rights to 
self-determination and self-governance will enable the Native Hawaiian 
people, as the direct, lineal descendants of the aboriginal, indigenous 
native people of what has become our nation's fiftieth state, to take 
their rightful place in the family of governments that makes up our 
constitutional system of governance.
                                 ______