Congressional Record, Volume 156 Issue 23 (Tuesday, February 23, 2010)

[Congressional Record Volume 156, Number 23 (Tuesday, February 23, 2010)]
[House]
[Pages H700-H714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2009

Mr. RAHALL. Mr. Speaker, pursuant to House Resolution 1083, I call up
the bill (H.R. 2314) to express 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 ask for its immediate
consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 1083, the bill
is considered read.
The text of the bill is as follows:

H.R. 2314

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 2009''.

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
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
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 single 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;

[[Page H701]]

(x) native language immersion schools from kindergarten
through high school;
(xi) college and master's degree programs in native
language immersion instruction; and
(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 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 single 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
political and legal relationship 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 exclusive right of the United
States to consent to any actions affecting the lands included
in 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 special political and legal relationship; and
(D) the special 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
special 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, and March 1, 2005.

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 (10).
(5) Council.--The term ``council'' means the Native
Hawaiian Interim Governing Council established under section
7(c)(2).
(6) Indian program or service.--
(A) In general.--The term ``Indian program or service''
means any federally funded or authorized program or service
provided to an Indian tribe (or member of an Indian tribe)
because of the status of the members of the Indian tribe as
Indians.
(B) Inclusions.--The term ``Indian program or service''
includes a program or service provided by the Bureau of
Indian Affairs, the Indian Health Service, or any other
Federal agency.
(7) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(8) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the
aboriginal, indigenous, native people of the United States.
(9) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(10) Native hawaiian.--
(A) In general.--Subject to subparagraph (B), for the
purpose of establishing the roll authorized under section
7(c)(1) and before the reaffirmation of the special political
and legal relationship between the United States and the
Native Hawaiian governing entity, the term ``Native
Hawaiian'' means--
(i) an individual who is 1 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

(ii) an individual who is 1 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.
(B) No effect on other definitions.--Nothing in this
paragraph affects the definition of the term ``Native
Hawaiian'' under any other Federal or State law (including a
regulation).
(11) Native hawaiian governing entity.--The term ``Native
Hawaiian Governing Entity'' means the governing entity
organized by the Native Hawaiian people pursuant to this Act.
(12) Native hawaiian program or service.--The term ``Native
Hawaiian program or service'' means any program or service
provided to Native Hawaiians because of their status as
Native Hawaiians.
(13) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established by section
5(a).
(14) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(15) Special political and legal relationship.--The term
``special political and legal relationship'' shall refer,
except where differences are specifically indicated elsewhere
in the Act, to the type of and nature of relationship the
United States has with the several federally recognized
Indian tribes.

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 single Native Hawaiian
governing entity and the reaffirmation of the special
political and legal relationship between the United States
and that Native Hawaiian governing entity for purposes of
continuing a government-to-government relationship.

[[Page H702]]

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 special political and
legal relationship between the single 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, and 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.
(c) Applicability to Department of Defense.--This section
shall have no applicability to the Department of Defense or
to any agency or component of the Department of Defense, but
the Secretary of Defense may designate 1 or more officials as
liaison to the Office.

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--
(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) consult with the Native Hawaiian governing entity,
through the coordination referred to in section 6(d)(1), but
the consultation obligation established in this provision
shall apply only after the satisfaction of all of the
conditions referred to in section 7(c)(6); and
(3) ensure the participation of each Federal agency in the
development of the report to Congress authorized in section
5(b)(5).
(e) Applicability to Department of Defense.--This section
shall have no applicability to the Department of Defense or
to any agency or component of the Department of Defense, but
the Secretary of Defense may designate 1 or more officials as
liaison to the Interagency Coordinating Group.

SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NATIVE HAWAIIAN
GOVERNING ENTITY AND THE REAFFIRMATION OF THE
SPECIAL 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
single 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 9 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 single 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 section 3(10).
(2) Membership.--
(A) Appointment.--
(i) In general.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall appoint the
members of the Commission in accordance with subparagraph
(B).
(ii) Consideration.--In making an appointment under clause
(i), the Secretary may take into consideration a
recommendation made by any Native Hawaiian organization.
(B) Requirements.--Each member of the Commission shall
demonstrate, as determined by the Secretary--
(i) not less than 10 years of experience in the study and
determination of Native Hawaiian genealogy; and
(ii) an ability to read and translate into English
documents written in the Hawaiian language.
(C) Vacancies.--A vacancy on the Commission--
(i) shall not affect the powers of the Commission; and
(ii) shall be filled in the same manner as the original
appointment.
(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(10).
(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 special 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(10) 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(10).
(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(10);
(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(10), 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

[[Page H703]]

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(10) to the
Secretary within 2 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(10).
(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(10), 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(10) 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; and
(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(10) 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--

(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 special 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 special
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;

[[Page H704]]

(E) any residual responsibilities of the United States and
the State of Hawaii; and
(F) grievances regarding assertions of historical wrongs
committed against Native Hawaiians by the United States or by
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.
(3) Governmental authority and power.--Any governmental
authority or power to be exercised by the Native Hawaiian
governing entity which is currently exercised by the State or
Federal Governments shall be exercised by the Native Hawaiian
governing entity only as agreed to in negotiations pursuant
to section 8(b)(1) of this Act and beginning on the date on
which legislation to implement such agreement has been
enacted by the United States Congress, when applicable, and
by the State of Hawaii, when applicable. This includes any
required modifications to the Hawaii State Constitution in
accordance with the Hawaii Revised Statutes.
(c) Claims.--
(1) Disclaimers.--Nothing in this Act--
(A) creates a cause of action against the United States or
any other entity or person;
(B) alters existing law, including existing case law,
regarding obligations on the part of the United States or the
State of Hawaii with regard to Native Hawaiians or any Native
Hawaiian entity;
(C) creates obligations that did not exist in any source of
Federal law prior to the date of enactment of this Act; or
(D) establishes authority for the recognition of Native
Hawaiian groups other than the single Native Hawaiian
Governing Entity.
(2) Federal sovereign immunity.--
(A) Specific purpose.--Nothing in this Act is intended to
create or allow to be maintained in any court any potential
breach-of-trust actions, land claims, resource-protection or
resource-management claims, or similar types of claims
brought by or on behalf of Native Hawaiians or the Native
Hawaiian governing entity for equitable, monetary, or
Administrative Procedure Act-based relief against the United
States or the State of Hawaii, whether or not such claims
specifically assert an alleged breach of trust, call for an
accounting, seek declaratory relief, or seek the recovery of
or compensation for lands once held by Native Hawaiians.
(B) Establishment and retention of sovereign immunity.--To
effectuate the ends expressed in section 8(c)(1) and
8(c)(2)(A), and notwithstanding any other provision of
Federal law, the United States retains its sovereign immunity
to any claim that existed prior to the enactment of this Act
(including, but not limited to, any claim based in whole or
in part on past events), and which could be brought by Native
Hawaiians or any Native Hawaiian governing entity. Nor shall
any preexisting waiver of sovereign immunity (including, but
not limited to, waivers set forth in chapter 7 of part I of
title 5, United States Code, and sections 1505 and 2409a of
title 28, United States Code) be applicable to any such
claims. This complete retention or reclaiming of sovereign
immunity also applies to every claim that might attempt to
rely on this Act for support, without regard to the source of
law under which any such claim might be asserted.
(C) Effect.--It is the general effect of section 8(c)(2)(B)
that any claims that may already have accrued and might be
brought against the United States, including any claims of
the types specifically referred to in section 8(c)(2)(A),
along with both claims of a similar nature and claims arising
out of the same nucleus of operative facts as could give rise
to claims of the specific types referred to in section
8(c)(2)(A), be rendered nonjusticiable in suits brought by
plaintiffs other than the Federal Government.
(3) State sovereignty immunity.--
(A) Notwithstanding any other provision of Federal law, the
State retains its sovereign immunity, unless waived in accord
with State law, to any claim, established under any source of
law, regarding Native Hawaiians, that existed prior to the
enactment of this Act.
(B) Nothing in this Act shall be construed to constitute an
override pursuant to section 5 of the Fourteenth Amendment of
State sovereign immunity held under the Eleventh Amendment.

SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

(a) Indian Gaming Regulatory Act.--
(1) The Native Hawaiian governing entity and Native
Hawaiians may not conduct gaming activities as a matter of
claimed inherent authority or under the authority of any
Federal law, including the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) or under any regulations thereunder
promulgated by the Secretary or the National Indian Gaming
Commission.
(2) The foregoing prohibition in section 9(a)(1) on the use
of Indian Gaming Regulatory Act and inherent authority to
game apply regardless of whether gaming by Native Hawaiians
or the Native Hawaiian governing entity would be located on
land within the State of Hawaii or within any other State or
Territory of the United States.
(b) Taking Land Into Trust.--Notwithstanding any other
provision of law, including but not limited to part 151 of
title 25, Code of Federal Regulations, the Secretary shall
not take land into trust on behalf of individuals or groups
claiming to be Native Hawaiian or on behalf of the native
Hawaiian governing entity.
(c) Real Property Transfers.--The Indian Trade and
Intercourse Act (25 U.S.C. 177), does not, has never, and
will not apply after enactment to lands or lands transfers
present, past, or future, in the State of Hawaii. If despite
the expression of this intent herein, a court were to
construe the Trade and Intercourse Act to apply to lands or
land transfers in Hawaii before the date of enactment of this
Act, then any transfer of land or natural resources located
within the State of Hawaii prior to the date of enactment of
this Act, by or on behalf of the Native Hawaiian people, or
individual Native Hawaiians, shall be deemed to have been
made in accordance with the Indian Trade and Intercourse Act
and any other provision of Federal law that specifically
applies to transfers of land or natural resources from, by,
or on behalf of an Indian tribe, Native Hawaiians, or Native
Hawaiian entities.
(d) Single Governing Entity.--This Act will result in the
recognition of the single Native Hawaiian governing entity.
Additional Native Hawaiian groups shall not be eligible for
acknowledgment pursuant to the Federal Acknowledgment Process
set forth in part 83 of title 25 of the Code of Federal
Regulations or any other administrative acknowledgment or
recognition process.
(e) Jurisdiction.--Nothing in this Act alters the civil or
criminal jurisdiction of the United States or the State of
Hawaii over lands and persons within the State of Hawaii. The
status quo of Federal and State jurisdiction can change only
as a result of further legislation, if any, enacted after the
conclusion, in relevant part, of the negotiation process
established in section 8(b).
(f) Indian Programs and Services.--Notwithstanding section
7(c)(6), because of the eligibility of the Native Hawaiian
governing entity and its citizens for Native Hawaiian
programs and services in accordance with subsection (g),
nothing in this Act provides an authorization for eligibility
to participate in any Indian program or service to any
individual or entity not otherwise eligible for the program
or service under applicable Federal law.
(g) Native Hawaiian Programs and Services.--The Native
Hawaiian governing entity and its citizens shall be eligible
for Native Hawaiian programs and services to the extent and
in the manner provided by other applicable laws.

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.

The SPEAKER pro tempore. After 1 hour of debate on the bill, it shall
be in order to consider the amendment in the nature of a substitute
printed in part A of House Report 111-413, if offered by the gentleman
from Hawaii (Mr. Abercrombie) or his designee, which shall be
considered as read, and shall be separately debatable for 30 minutes
equally divided and controlled by the proponent and an opponent.
The amendments to the amendment in the nature of a substitute printed
in part B of House Report 111-413, each of which may be offered only by
a Member designated in the report, shall be considered as read and
shall be separately debatable for 10 minutes equally divided and
controlled by the proponent and an opponent.
The gentleman from West Virginia (Mr. Rahall) and the gentleman from
Washington (Mr. Hastings) each will control 30 minutes.
The Chair recognizes the gentleman from West Virginia.

{time} 1745

General Leave

Mr. RAHALL. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
insert extraneous material on H.R. 2134.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from West Virginia?
There was no objection.
Mr. RAHALL. Mr. Speaker, the history of these United States is
replete with glory. From the moment we broke the bonds of tyranny and
declared independence to the severe tests we endured to maintain our
union of States during the Civil War, to developments in science,
medicine, and technology,

[[Page H705]]

we as a Nation advanced for the benefit of the entire world. But
throughout much of this history, our treatment of indigenous
populations has been found wanting. The very policy that the United
States advanced toward Native Americans from destruction to
assimilation to reservation were conflicting and did not usually
produce favorable results, at least from the perspective of the Native
American.
Today, we are considering a measure which seeks to rectify a wrong
that occurred 117 years ago. On January 17, 1893, the legitimate
Kingdom of Hawaii was overthrown by American speculators with the
active participation of the U.S. military. Five years after this
overthrow, Hawaii was annexed to the United States and the lands of the
indigenous population were lost to sugar plantations. Their health,
education, and economic standing diminished greatly, a saga that has
been repeated again and again with respect to Native Americans
throughout our country.
The measure we are considering today is not a restitution measure,
nor is it an outright recognition measure. What it would do is create a
process by which the Native Hawaiian governing body would be
reorganized, and the political and legal relationship with the United
States would be reaffirmed.
I think it is important to note what this bill does not do: It does
not allow for gaming; it does not provide for the transfer of any
lands; it does not change civil or criminal jurisdiction by the State
or Federal Governments; and it does not provide for any new eligibility
into Indian programs.
Following reorganization of a governing body, the bill authorizes
negotiation among the Federal, State, and Native Hawaiian governing
entities to address certain powers and authorities. Any changes in
these areas would require enactment of additional Federal and possibly
State legislation.
Beginning in 1920, Congress began passing legislation specifically
for the benefit of Native Hawaiians. To date, over 160 laws have been
enacted to provide the Native Hawaiian community with everything from
housing to repatriation of Hawaiian human remains from the Nation's
museums. In each case, Congress understood its right and responsibility
to enact laws affecting the native peoples of Hawaii similar to natives
of the other 49 States. This is not a matter of race; it is a matter of
Congress properly dealing with the indigenous populations as expressly
sanctioned by the Constitution of the United States.
To allege that the Congress cannot engage in legislation of the
pending nature regarding Native Hawaiians is to ignore the fact that
there are 564 Federally recognized Indian tribes in this country. The
bill before us today is similar legislation that has passed the House
in previous Congresses. During the 106th Congress, we passed a similar
bill under suspension of the rules when the Republicans held the
majority. That was under Tom DeLay's watch, but what a different tune
we will hear today from the other side. Similar legislation also passed
during last Congress by a large majority.
So I urge my colleagues to vote to fulfill our constitutional
responsibility toward indigenous people residing in the United States
and vote for this bill.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself such time as
I may consume.
(Mr. HASTINGS of Washington asked and was given permission to revise
and extend his remarks.)
Mr. HASTINGS of Washington. Mr. Speaker, I rise in opposition to H.R.
2314 and the substitute text that will be offered by my good friend
from Hawaii (Mr. Abercrombie).
Mr. Speaker, at the outset of this debate, it is important for all
Members to understand that the substitute text that they will
ultimately be voting on today is fundamentally changed from the
original underlying bill that the House voted on in 2007. This
rewritten text, the Abercrombie substitute, was drafted behind closed
doors away from public view. It was unveiled less than 48 hours before
we in the House were to be debating and voting on that substitute.
Regrettably, Mr. Speaker, this lack of transparency has become the
standard operating procedure for this Democratic-controlled House.
Mr. Speaker, I am certain we will hear appeals from the bill's
advocates that the vote on this bill should not be a partisan matter. I
would agree. This is not a partisan matter; rather, it is a question of
what is right and constitutional. But appeals to nonpartisanship ring
hollow when the bill was rewritten in secret by just one party and then
rushed to the floor with little time for scrutiny by the minority, but
more importantly, Mr. Speaker, little time for scrutiny by the American
people or the citizens of Hawaii.
There is nothing more troubling about the House voting on a
fundamentally rewritten bill than the position made public by the
Governor of Hawaii. Something is very wrong when that Governor, a
longtime vocal advocate of Native Hawaiian recognition, feels compelled
to issue a statement last night that she can't support this rewritten
bill.
Now, the Governor and I disagree on the fundamental question of
recognition, I want to make that clear, just as I fundamentally
disagree with my good friend from Hawaii (Mr. Abercrombie) but I also
strongly disagree with the House acting to impose a changed bill on one
of the 50 States over their Governor's objections, especially when this
Governor has long supported, as I mentioned, the concept of Native
Hawaiian recognition and the original text of the bill.
Let me explain the difference between the underlying bill, which is
basically what the House passed in the 110th Congress, and the
Abercrombie amendment in the nature of a substitute. This is very
important, Mr. Speaker. The original bill extended recognition to the
Native Hawaiian entity but withheld any tribal powers and privileges,
such as immunity from lawsuit and State jurisdiction, until after
negotiations with--and the consent of--the State of Hawaii and this
Congress. Though this does not resolve my fundamental objection to the
bill, it was an arrangement that drew the strong support of Governor
Lingle of Hawaii.
In contrast, the substitute alters this fundamental nature of the
bill. Let me quote the words that the Governor of Hawaii, Governor
Linda Lingle, used to describe this rewrite: ``The current bill
establishes that the Native Hawaiian governing entity would start with
broad governmental powers and authorities, with negotiations to
follow.'' Again, the original bill starts with negotiations, followed
by a grant of powers and authorities that are subject to the consent of
the State. But the substitute starts with the grant of powers and
authorities without the consent of the State, followed by negotiations
for yet more benefits and powers.
Let me be specific, Mr. Speaker, in two instances. First, section 9
of the substitute clearly spells out the powers granted to the Native
American governing entity before negotiations without the consent of
the State; it is immunity from any lawsuit in any Federal or State
court, with only minor exceptions. Second, it is that ``governmental''
activities pursued by the entity or its officers and employees shall
not be subject to State regulatory or taxation authority. The wording
of this section suggests that the State criminal authority will not
even apply to officers and employees of the Native Hawaiian governing
entity as long as they are acting within the scope of their duties.
To once again quote from the Governor of Hawaii's statement from last
night, ``I do not believe such a structure, of two completely different
sets of rules--one for `governmental' activities of the Native Hawaiian
governing entity and its officers and employees, and one for everyone
else--makes sense for Hawaii.''
Quoting further, ``In addition, under the current bill, the Native
Hawaiian governing entity has almost complete sovereign immunity from
lawsuits, including from ordinary tort and contract lawsuits, and I do
not believe this makes sense for the people of Hawaii.'' And I am
quoting from Governor Lingle.
Without question, this rewritten bill strikes at the heart of the
State of Hawaii's authority to enforce health and environmental
regulations, taxes, and criminal law enforcement equally among its
citizens. Congress should not be party to imposing this upon this
State, or for that matter any State. Yet, despite the State of Hawaii's
concerns with the rewritten bill, here we

[[Page H706]]

are tonight debating it on the floor of the House of Representatives.
This legislation violates also, in my view, the United States
Constitution because it establishes a separate, race-based government
of Native Hawaiians.

The authors and advocates of this bill have argued that Native
Hawaiian recognition is no different than Congress recognizing an
Indian tribe, and yet, Mr. Speaker, there are very important and real
differences. Native Hawaiians are not and never have been members of an
Indian tribe. Native Hawaiians do not share the same political and
legal history as Federally recognized Indian tribes. The historical
record on this point is very, very clear. For example, in the Hawaii
Organic Act of 1900, section 4 states that all persons who were
citizens of the Republic of Hawaii in 1898 were declared citizens of
the United States and citizens of the Territory of Hawaii.
Mr. Speaker, if Congress then believed it was recognizing the
existence of a separate Native Hawaiian community, the Organic Act
would have expressly reflected this; instead, all Hawaiians were
recognized as full citizens. Mr. Speaker, this is in stark contrast to
our Nation's history of less than equal treatment of individual Indians
and Indian tribes.
But try as we might, Congress cannot revise historical and political
facts. H.R. 2314 attempts to do just this, to rewrite legal history.
Mr. Speaker, this observation is shared by constitutional and civil
rights experts. For example, in its 7-2 decision, the Supreme Court in
Rice v. Cayetano commented on the proposition of Native Hawaiian
recognition, saying that it, and I quote from that case, ``would raise
questions of considerable moment and difficulty. It is a matter of some
dispute whether Congress may treat the Native Hawaiians as it does the
Indian tribes.''
Just yesterday, the U.S. Commission on Civil Rights reiterated its
standing opposition to any legislation, and I quote from the
commission, ``that would discriminate on the basis of race or national
origin and further subdivide the American people into discrete
subgroups according to varying degrees of privilege.''
Mr. Speaker, in 1959 a vote was taken in Hawaii on the question of
becoming a State. Over 94 percent voted in favor of statehood. In other
words, citizens of Hawaii voted overwhelmingly to join our Union as one
unified State.

{time} 1800

Today, under this bill, Congress will vote on dividing the State of
Hawaii through the creation of a separate governing entity based solely
on race. If Congress is going to impose this division on Hawaii over
the objections of its Governor, then I believe the citizens of Hawaii
themselves deserve to have a vote on this matter.
In a Zogby poll from December 2009, a couple of months ago, only 34
percent of Hawaiians supported the concept of the Federal Government's
imposing a new racially based subpopulation of citizens on the islands.
Like their fellow Hawaiians who voted overwhelmingly for Statehood in
1959, Hawaiians today want a say in the future of their archipelago.
The same poll found that 58 percent want a Statewide vote on this
issue.
So, Mr. Speaker, I have an amendment that will be offered which would
require just such a Statewide vote, and I hope all Members will join me
in adopting that amendment.
As I noted at the outset of my remarks, the House last voted on
Native Hawaiian recognition in 2007. I want to reiterate today, Mr.
Speaker, that we will be voting on a different bill today. The 2007
legislation was rewritten. I believe the changes today are so
fundamentally different that those Members who voted ``yes'' in 2007
should take the time to reconsider their votes.
There is another compelling reason for reconsideration when the
Governor of Hawaii, the State that is impacted, has gone from an
enthusiastic supporter of the 2007 bill to not supporting the rewritten
bill. I hope many of my colleagues will recognize this dramatic change
from just 3 years ago. The Governor remains a committed supporter of
Native Hawaiian recognition. Her position has not changed. It is the
bill that has been fundamentally changed and rewritten. Like the
Governor, who supported the 2007 bill, they, too, have good reason to
oppose this rewritten version today.
Now, Mr. Speaker, before concluding my opening statement, I want to
take a moment to publicly state that I have a great deal of respect and
affection for my colleague from Hawaii, Neil Abercrombie. He is
departing the House at the end of this week, and I do regret that I am
leading the opposition to his bill in his final days here in the House.
To be very honest, Mr. Speaker, I would much rather be on the floor
supporting his bipartisan legislation to write into law a 5-year plan
to develop America's offshore oil and gas reserves. Regrettably, such
reasonable legislation stands no chance of making it to the floor in
this Congress, and I do regret that.
So I hope that my good friend knows that my opposition to this
recognition bill is based on my view of the matter and is not a
reflection of the high regard for which I hold him as my friend. I want
to wish him well in his future endeavors--well, maybe not real, real
well.
Mr. ABERCROMBIE. Will the gentleman yield?
Mr. HASTINGS of Washington. I yield to the gentleman from Hawaii.
Mr. ABERCROMBIE. I am deeply touched by your remarks. Your friendship
is something I treasure and value. I am so taken by it, as a matter of
fact, that I wonder if you would allow me to present you with a token
of my esteem and my regard for you. These chocolate-covered macadamia
nuts from Hawaii, I think, are just what you need right now. If you
would allow me to come over and present them to you, that will give you
an opportunity to contemplate as to whether or not, out of regard for
our friendship and affection for each other, you will actually support
the bill.
Mr. HASTINGS of Washington. Reclaiming my time, I hope the gentleman
has checked with the Ethics Committee; but having been a long-time
member, I gladly accept that from my good friend.
Mr. ABERCROMBIE. Mr. Speaker, I can assure you that the Ethics
Committee, the Parliamentarian and the Speaker of the House of
Representatives have assured me that, if you can consume it on the
premises, it's okay.
Mr. HASTINGS of Washington. Mr. Speaker, I reserve the balance of my
time.
Mr. RAHALL. Mr. Speaker, before I yield to the author of the pending
legislation, I would like to make a couple of comments and praise him
for his hard work and for his determination, persistence and patience
on the pending matter.
For 20 years, Neil Abercrombie and I have served together on our
Natural Resources Committee. We have fought many battles together, and
I have always been proud to call him my friend--a unique friend, I
might add at that--and I'm not even getting any chocolate-covered
macadamia nuts this evening.
He has always been able to work together with Members of differing
views and backgrounds. He has always remained decent, fair-minded, able
to reach across the aisle both politically and philosophically, and I
find that a truly commendable feature of this gentleman.
As we have already heard from the minority side, he will be leaving
the Congress at the end of this week, but I can tell him that his mark
on this institution will live on much longer after he has returned to
his beloved Hawaii and to his other pursuits. He has been a champion of
all Native Americans during his time in this Congress. It is a
testament to Neil that he will spend his last days in this body
fighting for the rights of Native Hawaiians.

It is now, indeed, my honor to yield 5 minutes to the gentleman from
Hawaii (Mr. Abercrombie).
Mr. ABERCROMBIE. Thank you, Mr. Chairman. Thank you, Doc. My regard
for you and for all of the Members is, of course, something that, I
trust, is understood by all. I see my good friend Don Young there as
well.
Mr. Speaker, this bill is an enabling bill. It establishes a process.
The core of this bill assures that a Native Hawaiian Government has the
same powers and sovereign immunity as other native governments, and
this is consistent with the history of the legal discussions and court
cases that have taken place over such a long period of time.

[[Page H707]]

Since the passage of the bill in the Resources Committee, we have had
2 months of discussions with the Hawaii State Attorney General. As a
result, we have made numerous changes in the substitute amendment, and
have added several pages of new text to make the State more comfortable
with how a native government interacts with the State government.
This is, in fact, my amendment, and I wanted to assure the minority
on the floor--I don't think there is a minority here. Doc is quite
right. It's not a question of Republican versus Democrat or majority
versus minority. It is a question of perspective as to what is
appropriate with regard to Native Hawaiians and other native people and
how they establish relationships both with local governments and State
governments in the United States of America.
So this has not been something behind closed doors. Quite the
opposite. It has been a full and complete discussion with the Governor
and with the Attorney General, and I think that is reflected in the
Governor's statement.
In conversation with Governor Lingle today, we concluded that we
would agree to disagree. As Representative Hastings has indicated, she
continues to support the legislative object of the bill, and I want to
assure the House that her administration will not be disadvantaged in
any way in any negotiations undertaken upon the passage and signing of
this bill.
As a candidate for Governor myself, I am completely comfortable with
the language of the substitute, and believe that no Governor,
regardless of who it may be, will be disadvantaged. The substitute
amendment treats a Native Hawaiian entity as any other native
government, and it follows literally centuries of existing Native
American law.
Native Hawaiians are not a race. They are a native indigenous people
of the United States. The United States Supreme Court has repeatedly
held that legislation enacted to address the special concerns and
conditions of native people of the United States does not constitute
discrimination on the basis of race or ethnicity. The sovereign status
of Indian tribes, recognized by the Constitution, was later extended to
Alaska natives as indigenous people, and Representative Young can
attest to that in his remarks. On this same basis then, Congress has
enacted legislation on multiple occasions for the aboriginal,
indigenous people of Hawaii.
Absent the substitute, H.R. 2314 would unduly limit the power of the
Native Hawaiian governing entity, upon recognition, to accomplish the
ordinary and customary activities of any other native organization,
such as providing for the welfare of their children or for the health
care of its members. The substitute amendment then will ensure that the
Native Hawaiian governing entity will have the same powers and
authorities that other tribal governments exercise today.
The Native Hawaiian Government will have sovereign immunity, as I
indicated, the same as other native governments--no more, no less. This
is not a new provision. Under the bill passed by the House in the last
Congress, the Native Hawaiian governing entity would also have had
sovereign immunity once it had been federally recognized.
In support of this bill are the Congressional Delegation of Hawaii,
the National Congress of American Indians, the Alaska Federation of
Natives, et cetera, et cetera. The Native American Caucus, under
Representatives Kildee and Cole, as caucus Chairs, are supportive as
are the Native Hawaiian organizations, such as the Sovereign Council of
Hawaiian Homestead Organizations, the Council for Native Hawaiian
Advancement and the Office of Hawaiian Affairs. Local political leaders
in both houses of the legislature and numerous resolutions from both of
those bodies are in support.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. RAHALL. I yield the gentleman 2 additional minutes.
Mr. ABERCROMBIE. I could not take leave of the floor, Mr. Speaker,
without mentioning the following:
It is one thing for Representative Hastings or Young or Rahall or
myself and others to take to the floor, but without staff support, it
simply couldn't be done.
Our friend, an institutional giant of the Resources Committee, Marie
Howard, is retiring from the Natural Resources Committee. I want to
commend her, not just for the work on this bill, but for all of the
devotion that she has had to the House.

Janet Erickson is taking her place as staff director for Indian
Affairs.
In addition to Marie and Janet, Rick Healy and Jim Zoia have been
heavily involved in bringing this bill to the floor. Their efforts are
deeply appreciated by everyone.
Countless hours of staff time in the administration--both
departmental and within the White House--have been put forward.
As has been indicated, Mr. Speaker, this bill has passed out of the
House Natural Resources Committee four times already. It has passed
from the House floor twice under the leadership of as diverse a group
of Chairs as Jim Hansen, Don Young, George Miller, and Nick Rahall. I
note as well that the bill has passed under the leadership of Speaker
Dennis Hastert and under the leadership of my good friend Tom DeLay. It
is not ideological. It is nonpartisan. It is the culmination of a
legislative lifetime for me, and it is the last occasion I will have to
address the House as I take my leave.
Mr. Speaker, I love this House. I admire and respect every Member. It
has been a privilege for me to be first sworn in as the last person to
be sworn in by Speaker Tip O'Neill. I take my leave today with profound
respect, admiration and affection for every Member of this House of
Representatives. This is the people's House. You can only enter it upon
the fact of having been elected by your constituents. They have placed
their faith and trust in us, and I extend my faith and trust that this
House will continue the great tradition of democracy.
I want to say to one and all that I love you, and I love this House.
Mr. Speaker, I rise today in support of H.R. 2314, the Native
Hawaiian Government Reorganization Act of 2009 and a substitute
amendment that I will offer on the House floor. This is legislation
that the Hawaii Congressional delegation has been working on for more
than 10 years and it is a privilege to see this progress through the
legislative process as my time in Congress comes to an end.
The purpose of the bill is to provide a process for the
reorganization of the Native Hawaiian governing entity for the purposes
of a federally recognized government-to-government relationship. The
Native Hawaiian Government Reorganization Act would provide Native
Hawaiians the same right of self-governance and self-determination that
are afforded to other indigenous peoples.
Since Hawaii was annexed as a territory, the United States has
treated Native Hawaiians in a manner similar to that of American
Indians and Alaska Natives. This bill would formalize that relationship
and establish parity in federal policies towards all of our indigenous
peoples.
I would also like to provide supporting documentation on the sections
of H.R. 2314 primarily affected by the amendment in the nature of a
substitute that I am offering on the House floor today. The following
is additional language on Sections 3, 9 and 10.

SEC 3. DEFINITIONS

The definition of ``Native Hawaiian Membership
Organization'' identifies organizations through which Native
Hawaiians have sought to preserve their culture, native
traditions, and self-governance. These organizations are an
important (though not the exclusive) means through which
Native Hawaiians have succeeded in maintaining their native
traditions and culture, and given expression to their rights
to self-determination and self-governance. Indeed, Congress
has relied on such organizations to function as official
representatives of the Native Hawaiian community in other
statutory contexts. In the Native American Graves Protection
and Repatriation Act, for example, Native Hawaiian
organizations function as representatives of the Native
Hawaiian community with respect to Native Hawaiian remains
and funerary objects, just as federally-recognized Indian
tribes represent their communities with respect to Indian
remains and objects. See 25 U.S.C. Sec. 3001 et seq.
The definition of ``qualified Native Hawaiian constituent''
identifies adult U.S. citizens who, subject to the procedures
and provisions of Section 8 of the Act, will be eligible to
participate in the initial reorganization of the Native
Hawaiian governing entity. The definition of ``qualified
Native Hawaiian constituent'' differs from similar
definitions in prior versions of this legislation in that it
requires not only descent from the aboriginal, indigenous,
native inhabitants of Hawaii, but also maintenance of ``a
significant cultural, social, or civic connection to the
Native Hawaiian community.''

[[Page H708]]

An individual must demonstrate this connection by satisfying
at least two of the ten listed criteria, which include
residence in Hawaii, residence on Hawaiian Homes Commission
Act (HHCA) lands (or status as the child or grandchild of
such a resident), eligibility to be a beneficiary of Hawaiian
Homes Commission Act programs, status as the child or
grandchild of a person with such eligibility, residence or
ownership interest in ``kuleana land'' that is owned in whole
or in part by a verified lineal descendant of the person who
received original title to such land (or status as a child or
grandchild of a person with such a residence or ownership
interest), attendance for at least one school year at a
school or program taught through the medium of the Hawaiian
language or at a school founded and operated primarily or
exclusively for the benefit of Native Hawaiians (or status as
the child or grandchild of a person who attended such a
program), membership in a Native Hawaiian organization, or
recognition as Native Hawaiian and as the son or daughter of
a person recognized as Native Hawaiian by other members of
the Native Hawaiian community.
The inclusion of these criteria will ensure that the
persons who participate in the reorganization of the Native
Hawaiian governing entity are persons with Native Hawaiian
ancestry who have established ties to the Native Hawaiian
community, as evidenced through, for example, connection to
Native Hawaiian traditional lands, whether HHCA lands or
kuleana lands, or a combination of residence in Hawaii and
connections with Hawaiian-language schools or Native Hawaiian
associations and organizations--both of which are means
through which the Native Hawaiian community has sought to
preserve and give expression to its culture and traditions.
There is precedent for using associative factors such as
kinship, land, and participation in native organizations in
determining tribal membership. See, e.g., 25 CFR
Sec. 83.7(b)(1)(vii) & (2)(iv) (including ``language'' and
``kinship organization[s]'' among the criteria the Department
of the Interior considers in determining whether petitioning
tribes can establish that they are a distinct native
community). The last criterion, recognition as Native
Hawaiian by the Native Hawaiian community, is also akin to
criteria used to define membership in a native community in
other contexts. See, e.g., 43 U.S.C. Sec. 1602(b) (Alaska
Native Claims Settlement Act (``ANCSA'')). The definition of
``qualified Native Hawaiian constituent'' will ensure that
the persons who participate in that reorganization are
appropriately connected to the Native Hawaiian community.
Once the Native Hawaiian governing entity is reorganized,
the United States will recognize and affirm the entity's
inherent power and authority (akin to the inherent power and
authority of any Indian tribe) to determine its own
membership criteria, to determine its own membership, and to
grant, deny, revoke, or qualify membership without regard to
whether any person was or was not deemed to be a ``qualified
Native Hawaiian constituent'' under this Act. Membership
criteria set forth in the Native Hawaiian governing entity's
organic governing documents should provide that membership is
voluntary and can be relinquished, as is typically the case
with Indian tribes.

SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY TO STATE OF
HAWAII; GOVERNMENTAL AUTHORITY AND POWER; NEGOTIATIONS; CLAIMS

Section 9 affirms the inherent powers and privileges that
will vest with the Native Hawaiian governing entity upon
federal recognition, and clarifies the respective powers and
immunities that this entity, the State of Hawaii, and United
States will have during the interim period immediately
following recognition but before the three sovereigns have
negotiated a long-term agreement or agreements and enacted
any implementing legislation.
The demarcations of authority between the State, the new
Native Hawaiian sovereign, and the United States are most
appropriately determined by agreement between those three
sovereigns, as provided for by section 9(c). Recognition of
the Native Hawaiian sovereign is a necessary precondition to
the development of such an agreement. Thus, it is necessary
for Congress to provide, not only for the inherent
authorities of the Native Hawaiian sovereign, but also for an
interim set of rules to demarcate its authority from that of
the State. Those interim rules will cease to have any effect
once the three sovereigns have negotiated, and their
legislatures have adopted, an agreed set of superseding
rules.

Sec. 9(b) & (c) Governmental Authority and Power; Negotiations

This section affirms the inherent authority of the Native
Hawaiian government, consistent with existing federal law.
Historically, when Congress has enacted legislation allowing
for the reorganization of native governments, it has
recognized that those governments are vested with inherent
tribal authority under existing federal law. See Indian
Reorganization Act of 1934, 25 U.S.C. Sec. 476(e)-(h);
Amendment to Indian Reorganization Act for Alaska (1936), 25
U.S.C. Sec. 473a. Congress retains the ability to modify the
contours of inherent tribal sovereignty. United States v.
Lara, 541 U.S. 193 (2004); United States v. John, 437 U.S.
634 (1978). The inherent power of the Native Hawaiian
governing entity may be modified by agreement between the
Native Hawaiian governing entity, the United States, and the
State of Hawaii pursuant to the negotiations authorized in
paragraph (1) of section 9(c), and subject to the enactment
of implementing legislation.
The inherent powers and privileges of self-government that
vest in the Native Hawaiian governing entity include Native
Hawaiians' inherent right to autonomy in their internal
affairs, and the inherent right to self-determination and
self-governance. The powers with which the Native Hawaiian
governing entity would be vested at the time of its federal
recognition would be inherent, internal powers of self-
government, such as the power to operate under a form of
government of the Native Hawaiians' choosing; the power to
define conditions of membership, see Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 55 (1978); the authority to regulate
domestic relations of members, see Fisher v. District Court
of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 38--89
(1976) (per curiam); and the power to provide governmental
programs and services to members.
In addition, upon federal recognition, the Native Hawaiian
governing entity would be entitled to sovereign immunity from
suit. See Kiowa Tribe of Oklahoma v. Manufacturing
Technologies, Inc., 523 U.S. 751 (1997); Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 58 (1978). In upholding tribal
sovereign immunity, courts have recognized Congress's desire,
expressed through legislation, to promote the ``goal of
Indian self-government, including its `overriding goal' of
encouraging tribal self-sufficiency and economic
development.'' Oklahoma Tax Comm'n v. Citizen Band Potawatomi
Indian Tribe of Okla., 498 U.S. 505, 510 (1991) (quoting
California v. Cabazon Band of Mission Indians, 480 U.S. 202,
216 (1987)).
The common-law sovereign immunity possessed by tribes is a
corollary to Indian sovereignty and self-governance. Three
Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, 476 U.S. 877, 890 (1986) (citing Santa Clara
Pueblo v. Martinez, 436 U.S. 49 (1978)). Immunities have a
range of functions, including preventing ``distraction of
officials from their governmental duties, inhibition of
discretionary action, and deterrence of able people from
public service.'' Harlow v. Fitzgerald, 457 U.S. 800, 816
(1982). Accordingly, the Native Hawaiian sovereign should
enjoy the same immunity from lawsuits in federal and state
courts as sovereign Indian tribes in the continental United
States enjoy. (Under the Indian Civil Rights Act, 25 U.S.C.
Sec. 1303, this immunity does not extend to federal habeas
petitions brought by persons alleging that they have been
detained in violation of their federal civil rights. See
Santa Clara Pueblo, 436 U.S. at 58-59.)
Likewise, the officers and employees of the Native Hawaiian
governing entity should enjoy the same common-law immunities
as the officers and employees of any Indian tribe. As with
Indian tribal officers, officers of the Native Hawaiian
governing entity might be sued for declaratory or injunctive
relief under principles akin to the doctrine of Ex parte
Young, 209 U.S. 123 (1908). As is also the case with Indian
tribal officers, an official of the Native Hawaiian sovereign
that acts outside the scope of his or her authority may be
liable to a suit for money damages. Notably, there will not
be Indian country in Hawaii in the initial period after the
Native Hawaiian governing entity is organized, which will
limit the scope of authority and associated immunity that
such officials may assert. There will certainly be immunity
in some instances: for example, a Native Hawaiian legislator
could not be sued for libel based on statements made in the
course of the deliberations of the sovereign's legislative
body, as the immunity of the Native Hawaiian sovereign would
encompass such conduct. But if an official of the Native
Hawaiian governing entity were to defraud a state agency for
personal profit in violation of state law, he or she would
not have individual immunity for such conduct.
Membership in the Native Hawaiian governing entity will be
voluntary, paralleling the applicable rule for tribes.
Accordingly, no person could be involuntarily subject to the
governing entity's inherent powers and privileges.
Moreover, because there is currently no ``Indian country''
in Hawaii and because this legislation neither creates
``Indian country'' or authorizes the United States to take
land into trust for the benefit of the Native Hawaiian
governing entity or its members, the Native Hawaiian
governing entity, at the time of its recognition by the
United States, would be able to exercise jurisdiction based
on membership, but not based on territory. The ``inherent
powers and privileges'' exercised by the Native Hawaiian
government thus would not generally extend to non-natives.
In the absence of Indian country, a court established by
the Native Hawaiian governing entity would have no civil
jurisdiction over non-natives unless they expressly submitted
to the court's jurisdiction. Absent such consent, the
governing entity's civil adjudicative jurisdiction could not
exceed its civil legislative jurisdiction, which would not
extend to regulating the behavior of non-natives.
Nothing in this Act would alter or preempt the State of
Hawaii's existing legislative, regulatory, or taxation
authority over individuals who are members of the Native
Hawaiian governing entity or their property. And state and
federal courts, again in the absence of Indian country in
Hawaii, would

[[Page H709]]

continue to exercise criminal and civil jurisdiction as they
currently do. If the Native Hawaiian governing entity
established a court, its criminal and civil jurisdiction over
members of the Native Hawaiian governing entity would
therefore be concurrent, not exclusive.
At some point after the United States' initial recognition
of the newly reorganized Native Hawaiian governing entity,
negotiations among the three sovereigns--the United States,
the State of Hawaii, and the Native Hawaiian governing
entity--could alter many of these ground rules. For example,
if the three sovereigns eventually agreed to the creation of
Indian country within the State of Hawaii (and legislation
was then enacted to implement that agreement), then it is
possible that the Native Hawaiian governing entity could then
exercise certain types of authority or jurisdiction over
nonmembers (even without their express consent).

Sec. 9(d) Claims

The language in this provision is intended to ensure that
this legislation does not extinguish, revive, or alter any
claim. Similarly, this legislation does not affect existing
defenses to claims, nor does it provide a new basis to bring
otherwise time-barred claims.
This legislation does not provide the basis for the Native
Hawaiian governing entity or other Native Hawaiian groups to
re-litigate claims that have already been resolved by the
courts or to retroactively impose new obligations on the
federal government or the State of Hawaii. These provisions
are necessary because Native Hawaiians are differently
situated than other entities that have been federally
recognized. Native Hawaiian claims--in contrast to those of
most newly recognized tribes--have been extensively litigated
over the past 100 years. There has been extensive litigation
relating to land claims, claims for money damages, and other
types of claims, dating back at least to 1910. Issues
concerning asserted historic or moral claims may be the
subject of negotiations among the new Native Hawaiian
governing entity, the State of Hawaii, and the United
States, together with the other issues encompassed within
the process set forth in section 9(c) of this Act, and
that such negotiations will provide an appropriate forum
in which to address these claims questions.
The language will not limit claims by the Native Hawaiian
governing entity that first arise after recognition of the
Native Hawaiian governing entity.

Sec. 10(c)(3) Indian Civil Rights Act

This provision expressly makes the Indian Civil Rights Act
of 1968, 25 U.S.C. Sec. Sec. 1301-1303, applicable to the
Council and the Native Hawaiian governing entity. The Indian
Civil Rights Act (ICRA) provides certain civil-rights
protections similar to those under the Bill of Rights and the
Fourteenth Amendment, including the rights to a speedy trial,
to a jury trial (in certain criminal cases), to confront
witnesses, and to avoid double jeopardy. See 25 U.S.C.
Sec. 1302. Importantly, because this provision makes ICRA
expressly applicable to the Native Hawaiian governing entity,
a person would be able to file a habeas corpus petition in
federal court to challenge the legality of his detention by
an order of the Native Hawaiian governing entity. Id. 1303.
Without express application of ICRA's habeas corpus provision
to the Native Hawaiian governing entity, it would be unclear
whether a person could challenge in federal court a detention
ordered by a Native Hawaiian court. While ICRA allows a
person to bring a habeas action, and thus serves as a limited
waiver of the Native Hawaiian governing entity's sovereign
immunity, it is not a general waiver of the entity's
sovereign immunity as to ICRA claims. See Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 58-59 (1978).
One provision of ICRA operates to reaffirm the authority of
tribal courts ``to exercise jurisdiction over all Indians.''
It is anticipated, upon recognition, the Native Hawaiian
sovereign will have jurisdiction only over its own members,
for reasons explained in the discussion of sections 9(b) and
(c). It is not intended, in providing for the applicability
of ICRA, that the courts of the Native Hawaiian sovereign
thereby acquire jurisdiction over nonmembers.

Sec. 10(c)(1) & (2) Statutes and regulations referencing ``Indians''
and ``Tribes''

This language is intended to avoid uncertainty, and
potential litigation, as to whether Native Hawaiians are
properly considered ``Indians,'' or the Native Hawaiian
sovereign is properly considered an ``Indian tribe'' under
every existing statute involving Indians and Indian tribes.
These terms occur throughout the United States Code and
associated implementing regulations. Such references to
``Indians'' and ``tribes'' do not generally encompass Native
Hawaiians. When Congress wishes to reference Native
Hawaiians, it has done so expressly. There is an extensive
body of federal Indian statutes and regulations specifically
addressing Native Hawaiians, often in conjunction with other
Native Americans. E.g., American Indian Religious Freedom
Act, 42 U.S.C. Sec. 1996; Native American Graves Protection
and Repatriation Act, 25 U.S.C. Sec. Sec. 3001-3013; Native
American Programs Act of 1974, 42 U.S.C. Sec. 2991-2992.
By incorporating only those statutes that expressly
reference Native Hawaiians, section 10(c)(2) provides clear
direction to federal agencies regarding which programs and
statutes are available to Native Hawaiians and avoids
statute-by-statute litigation over the scope of these
statutes. It is anticipated that a body of law addressing
Native Hawaiians will develop over time, based on currently
existing statutory and regulatory provisions and new
legislation and court decisions.

Sec. 10(d) Real Property Transfers

The Trade and Intercourse Act, first enacted in 1790,
requires congressional assent to transfers of Indian land
title to third parties. The Trade and Intercourse Act has
never been thought to apply to the alienation of Native
Hawaiian lands. As a result, parties have not sought
congressional ratification pursuant to 25 U.S.C. Sec. 177
prior to the transfer of these lands. To apply the Trade and
Intercourse Act retroactively could impose significant
liabilities on land owners in Hawaii, as well as on the State
of Hawaii. The language in section 10(d) clarifies that
Congress approves all prior land transactions in Hawaii,
which eliminates the possibility of a cloud on title issuing
from the Trade and Intercourse Act.
Section 10(d) is primarily directed to the State and
private parties, but the language is written to include all
transactions, including those involving the federal
government, to avoid future uncertainty and litigation.
After recognition of the Native Hawaiian governing entity
pursuant to this legislation, it is not Congress's intent
that the Trade and Intercourse Act would apply to future land
transactions by individual Native Hawaiians. See United
States v. Dann, 873 F.2d 1189 (9th Cir.), cert. denied 493
U.S. 890 (1989).

I would like to thank Chairman Rahall and the House Leadership for
their assistance and support on this legislation. I ask my colleagues
to advance the reconciliation process for the State of Hawaii by
supporting my substitute amendment and final passage of H.R. 2314.
Mr. HASTINGS of Washington. Mr. Speaker, as I said in my remarks, the
gentleman from Hawaii certainly will be missed.
With that, Mr. Speaker, I yield 3 minutes to the gentleman from
Alaska (Mr. Young).
(Mr. YOUNG of Alaska asked and was given permission to revise and
extend his remarks.)
Mr. YOUNG of Alaska. Mr. Speaker, I can only say I am losing a good
friend who will go to better and greater places.
You have been an ally to myself and to the feeling of working
bipartisan work with the chairman on both sides of the aisle. We have
always talked to one another, and we have recognized the importance of
being ``the'' Congressman and of listening to the Congressman from that
district. I have sponsored this bill every time it has come out of the
committee--while I was chairman, before I was chairman, after I was
chairman--and I will continue to do that.
I understand minority Member Doc Hastings and his position and why he
opposes it; but as we talk about this politically, we have to think
about the people whom we are affecting by our words. They have been
patient, patient, patient, and it is time for us to take the step
forward.
Is this bill perfect? No. I think it's better after the amendment is
adopted. I think it does solve the problems. There is no Indian Country
in Hawaii. Land cannot be taken into trusts. A Native Hawaiian
governing entity may not exercise jurisdiction over non-Native
Hawaiians. The State of Hawaii shall retain regulatory and taxation
authority over Native Hawaiians.
Yet these are Native Hawaiians, and I can speak with a great deal of
pride as to what happened in Alaska. In 1971, we passed the Alaska
Native Lands Act where we recognized the natives of Alaska, Alaska
natives--distinct and different from those natives in the lower 48--but
Alaska natives.

{time} 1815

And the progress they have made and the contribution they have made
to the State is amazing. They are the number one, I would say, economic
driving force in the State today. From a large group of people, 13
basic different tribes, regions, they are from a group that wasn't
recognized other than the fact that they were natives, that they really
did not fit well. But they were part of this State before we long came
there, my State, and their contribution, because they were recognized,
is just awesome. And I'm hoping this happens in the State of Hawaii.
For those in Hawaii that may oppose this, open your hearts. Open your
minds. Maybe do a little something a little different in Hawaii, as we
did in Alaska, and see the benefit to the individual, not only the
natives but everybody else. This legislation is a step forward. Is it
perfect? The Governor says

[[Page H710]]

no. I think it's open for debate. But if we don't do something, if we
don't move forward, those people will be neglected again.
So I ask my colleagues on my side and on the other side to consider
moving on something that is humanely the right thing to do for a group
of people that are Americans. They are aboriginals to the State of
Hawaii. They are brothers to Alaska. We've worked together. We will
continue to do that.
So I compliment, again, my good friend Neil for his work and his
dedication to this House, representing his people. That's what we're
here for. And thank God we do have people like that left.
I will miss you, Neil.
Mr. RAHALL. Mr. Speaker, I am very proud at this moment to yield 6
minutes to the gentlewoman from Hawaii (Ms. Hirono), who has been
instrumental as well in passing this legislation and bringing it, that
is, to the point that we are now experiencing.
Ms. HIRONO. Mr. Speaker, I rise today in strong support of H.R. 2314,
the Native Hawaiian Government Reorganization Act, and I thank my good
friend Congressman Young from Alaska for his remarks.
Long denied the recognition and rights accorded to America's other
indigenous people, this bill will finally enable Native Hawaiians to
embark on their long-awaited process of achieving self-determination. I
would like to thank Chairman Rahall for his leadership and general
support of this important bill. And, of course, I want to recognize and
thank my friend Congressman Abercrombie, the bill's chief sponsor, for
his years of advocacy for this bill and for his dedicated service to
our State and to our country. It is fitting that one of his last
legislative actions before his departure from this body will be on the
Native Hawaiian Government Reorganization Act, a bill that we both care
deeply about.
How we treat our native indigenous people reflects our values and who
we are as a country. Clearly there is much in the history of our
interactions with the native people of what is now the United States
that makes us less than proud. The American Indians, Alaska Natives,
and Native Hawaiians, all indigenous people, have suffered at the hands
of our government. But one of the great attributes of America has
always been the ability to look objectively at our history, learn from
it, and, when possible, to make amends.
H.R. 2314 has been more than 10 years in the making. It has been a
deliberative and open legislative process. There have been 12
congressional hearings on this bill, five of which were held in Hawaii.
It has been marked up by committees in both Chambers. The House has
passed this bill twice, in 2000 and again in 2007. We have a bill now
that is constitutional and one that the House should again pass.
The goals and purposes of this bill are consistent with the history
of the Native Hawaiian people and the record of the United States'
involvement in Hawaii. The bill is also consistent with the over 160
existing Federal laws that promote the welfare of the Native Hawaiian
people by, among other things, helping them to preserve their culture
and return to their lands. Building on that history, H.R. 2314 will
formalize the special political and legal relationship between the
United States and the Native Hawaiians by providing a process through
which the Native Hawaiian community can reorganize its governing entity
within this relationship.
The Kingdom of Hawaii was overthrown in 1893. Hawaii's last monarch,
Queen Liliuokalani, was deposed by an armed group of businessmen and
sugar planters, who were American by birth or heritage, with the
critical support of the U.S. troops. The queen agreed to relinquish her
thrown under protest to avoid bloodshed. She believed the United
States, with which Hawaii had diplomatic relations, would do the right
thing and restore her to the thrown.

It's important to note that the sovereign nation of Hawaii had
treaties with other nations besides the United States, including Great
Britain, France, Germany, Italy, Japan, and Russia. As we now know,
despite the objections of U.S. President Grover Cleveland, the
injustice of the overthrow of an independent sovereign nation was
allowed to stand and the Republic of Hawaii was established.
In 1898, the United States annexed Hawaii. Prior to annexation, a
petition drive organized by Native Hawaiians secured signatures of
almost two-thirds of the Native Hawaiian population who opposed
annexation. The total was 29,000 signatures out of an estimated Native
Hawaiian population of 40,000. As a further historical note, the Native
Hawaiian population prior to Western contact numbered between a
conservative estimate of 300,000 to as many as 1 million Native
Hawaiians.
The siege of Native Hawaiian culture continued after annexation. The
Republic of Hawaii prohibited the use of the Hawaiian language in
schools. Everyday use of the Hawaiian language diminished greatly and
was in danger of dying out. Hula dancing, which had been suppressed by
the missionaries and then restored by King Kalakaua, who preceded Queen
Liliuokalani, survived but did not flourish. Hawaiians were pressured
to assimilate and much of their vibrant culture was lost or went
underground.
In 1903, Prince Jonah Kuhio Kalanianaole was elected to serve as
Hawaii's delegate to Congress. And one of his most notable achievements
was the passage of the Hawaiian Homes Commission Act of 1920, which set
aside some 200,000 acres of land for Native Hawaiians. The reason for
the legislation was the landless status of so many Native Hawaiians who
were displaced by newcomers to the islands and who became the most
disadvantaged population in their native land. Congress passed the
Hawaiian Homes Commission Act, which is still in force, in recognition
of its responsibility toward Native Hawaiians.
As with other indigenous people, Native Hawaiian views on land tenure
were different from that of the newcomers, resulting in loss of much of
the land that had been traditionally occupied and cultivated by Native
Hawaiians. They lost these lands to these newcomers.
Hawaii became a State in 1959. Beginning in the late 1960s and early
1970s, a Native Hawaiian cultural rediscovery began in music, hula,
language, and other aspects of the culture. This cultural renaissance
was inspired by hula masters or kumu hula who helped bring back ancient
and traditional hula, musicians and vocalists who brought back
traditional music and sang in the Hawaiian language, and political
leaders who sought to protect Hawaii's sacred places and natural
beauty.
This flourishing of Hawaiian culture was not met with fear in Hawaii
but with joy and celebration and an increased connection with each
other. People of all ethnicities in Hawaii respect and honor the Native
Hawaiian culture. The idea of self-determination by Native Hawaiians is
regarded by most of our residents as just because we understand
Hawaii's history and the importance of our host culture.
The SPEAKER pro tempore (Mr. Yarmuth). The time of the gentlewoman
has expired.
Mr. RAHALL. I yield the gentlewoman an additional 1 minute.
Ms. HIRONO. In closing, it is well established that the United States
Constitution grants Congress broad general powers to legislate and
respect the native people, and these are powers that the U.S. Supreme
Court has consistently described as ``plenary and exclusive.''
Congress's plenary authority over Indian affairs includes the power to
authorize and prescribe the process by which Indian tribes and
aboriginal people organize or reorganize for purposes of carrying out a
government-to-government relationship with the United States.
The State of Hawaii motto, which was also the motto of the Kingdom of
Hawaii, is ``Ua mau ke ea o ka aina i ka pono,'' which translates to
``the life of the land is perpetuated in righteousness.'' Native
Hawaiians, like American Indians and Alaska Natives, have an inherent
sovereignty based on their status as indigenous, aboriginal people. I
urge your support of H.R. 2314.
Mahalo nui loa. Thank you.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 5
minutes to the gentleman from California (Mr. McClintock).
Mr. McCLINTOCK. I thank the gentleman for yielding.
Mr. Speaker, it pains me to rise in opposition to the valedictory
measure of the gentleman from Hawaii, but

[[Page H711]]

there's no blinking at the fact that this bill strikes at the very
foundation of a Nation that's dedicated to the concept of equality
under law.
It establishes a different set of laws, a different set of rights,
and a different government for one group of Americans based solely upon
their race. Two American families living next door to each other would
be afforded two different sets of rights enforced by two separate
sovereignties all based entirely upon accident of birth.
Ever since Brown v. Board of Education buried the ``separate but
equal'' doctrine of Plessy v. Ferguson, the Supreme Court has
consistently ruled that such an arrangement is fundamentally
incompatible with the American Constitution.
Ten years ago in the case of Rice v. Cayetano, the Supreme Court, in
a 7-2 decision, struck down identical race-based voting qualifications
for the Office of Hawaiian Affairs. The State argued that it could
impose race-based voting qualifications based upon the precedent of
Indian tribes that we've just heard today. Here's how the Court
responded. They said:
``Even were we to take the substantial step of finding authority in
Congress, delegated to the State, to treat Hawaiians or Native
Hawaiians as tribes, Congress may not authorize a State to create a
voting scheme of this sort.''
That's exactly what this bill does. This bill establishes a precedent
that will allow any distinct group within our Nation to demand its own
separate organic rights and government. Were we to pass this bill,
there would be no grounds to deny any other racial group with historic
grievances their own separatist government and exclusive rights.
Having enacted this law, on what basis do we deny every other demand
to tear our country apart? This is a precedent that is enormously
damaging to a multiracial Nation founded upon the principles of e
pluribus unum and equal justice under the law.
How exactly do we establish two separate governing systems and two
separate populations with two separate sets of civil and legal rights
all within the same territory? Under whose law are competing claims to
be settled?
This bill explicitly provides that the new Native Hawaiian Government
and its official acts cannot be challenged in an American court. And
how exactly can Congress cede by statute the very essence of its
constitutional authority, requiring civil and criminal jurisdictions
and property rights to be negotiated away to this new governing entity
that's defined solely by the race of its members?
The analogy with American Indian tribes is absurd both historically
and legally. Historically, American Indian tribes never voted to join
the Union. They were conquered by force and extended by treaty certain
lands in which they could exercise sovereignty, and they maintained
continuous self-government.
Whatever the circumstances involved in the revolution of 1893 and the
annexation of 1898, those circumstances became irrelevant in 1959 when
the people of Hawaii voted by a 17-1 margin, nearly 95 percent, to join
the Union and to become an integral and indivisible part of the
American Nation.
The Admissions Act never contemplated the establishment of a
separatist government. The provision the proponents cite merely
provided an option of land for homes and small farms for a very small
number of Hawaiians with 50 percent native ancestry. The Admissions Act
did not contemplate establishment of a separatist government. It did
contemplate assuming the full provisions of the American Constitution
and the Constitution's prohibition against race-based separatism and
race-based rights.

{time} 1830

Legally, a tribe exists only when it has a government that has
exercised substantial authority over its members from before western
contact continuously until the present, and when its members mostly
live separate and apart from surrounding populations. The sovereignty
of that government is limited to the trust lands of the tribe. These
long-established criteria are entirely inapplicable to American
citizens of Hawaiian descent, 40 percent of whom don't even live in
Hawaii according to the 2000 census.
Mr. Speaker, there is no more effective way to destroy a nation than
to divide its people by race and accord them different rates and
different government based upon their race. That is exactly what this
bill does.
Mr. RAHALL. Mr. Speaker, I am very pleased at this time to yield 5
minutes to another valued member of our Natural Resources Committee,
the gentleman from American Samoa, Mr. Eni Faleomavaega.
(Mr. FALEOMAVAEGA asked and was given permission to revise and extend
his remarks.)
Mr. FALEOMAVAEGA. I thank the chairman for yielding.
Mr. Speaker, I rise in strong support of the Native Hawaiian
Government Reorganization Act of 2009. This important piece of
legislation is to reaffirm the special political and legal relationship
between the United States and the indigenous Native Hawaiians for
purposes of continuing a government-to-government relationship.
I certainly want to thank Chairman Nick Rahall and the members of our
Natural Resources Committee for their support. I especially want to
thank and recognize my good friend and colleague, the gentleman from
the State of Hawaii (Mr. Abercrombie) for his leadership and tireless
efforts in bringing this legislation to the floor for consideration.
For some 20 years I have had the privilege and honor of working
closely with Mr. Abercrombie on legislation that have benefited not
only my constituents, but certainly the great State of Hawaii. I also
want to thank my colleague and my dear friend, Ms. Hirono, and other
Members for cosponsoring this important legislation.
Mr. Speaker, the legislation before us is very important for many
reasons, but none more critically important than for Congress to extend
proper and appropriate recognition for some 400,000 indigenous Native
Hawaiians in the State of Hawaii and those living outside of Hawaii.
Constitutionally, Congress has the authority to address the conditions
of the native people of the United States. And the indigenous people of
the Hawaiian Islands are a distinctively native community that for many
years existed as a sovereign entity.
History shows us from 1826 until 1893, the United States Government
recognized the Kingdom of Hawaii as a sovereign and independent nation.
It was accorded full diplomatic recognition. The kingdom entered into
treaties and conventions of peace, friendship, and commerce with the
Kingdom of Hawaii, governing trade, commerce, and even navigation in
the years 1826, 1842, 1849, 1875, 1887. Mr. Speaker, yes, even our
government, the United States of America, was party to these treaties
and conventions with the sovereign Kingdom of Hawaii.
Mr. Speaker, more than 100 years ago ambitious descendants of U.S.
missionaries and sugar planters, aided by an unauthorized and illegal
use of U.S. military forces, overthrew the sovereign Kingdom of Hawaii,
which at that time was ruled by Queen Lili'uokalani. In 1993, Congress
reaffirmed such a travesty on the Kingdom of Hawaii when they passed a
joint resolution to acknowledge and apologize on behalf of the United
States for the illegal and unlawful overthrow of the Hawaiian kingdom
in 1893, and for the deprivation of the rights and privileges of the
indigenous Native Hawaiians to self-determination.
To this day, Mr. Speaker, the status of indigenous Native Hawaiians
was never properly addressed by the United States Congress. And it is
within Congress's constitutional authority to do so. Congress and the
U.S. Supreme Court decisions properly determined that American Indians
of the lower 48 States are an indigenous people. In fact, recognition
of the Native Alaskans as indigenous people of the U.S. demonstrates
this constitutional authority. And even the U.S. Supreme Court has
recognized this constitutional authority and has accepted a broader
conceptualization of indigenous peoples, allowing Congress to recognize
indigenous groups, even those who are culturally and genealogically
distinct from the narrow concept of being an Indian or as a tribe.
In the Hawaiian Homes Commission Act of 1921, Congress expressed and
reaffirmed the special and trust relationship between the United States
and the

[[Page H712]]

Native Hawaiians. In addition, the act also recognized the Native
Hawaiians as a distinct and unique indigenous people. Native Hawaiians
are in fact indigenous, aboriginal people living within what is now the
borders of the United States and those living in the State of Hawaii,
and it is unfortunate that even today the status of some 400,000
indigenous Native Hawaiians have yet to be afforded the same
recognition as our first Americans.

Mr. Speaker, over the years the treatment of indigenous Native
Hawaiians by the U.S. Government has been piecemeal at best. There is
estimated over 150 laws that have been passed by the Congress related
to the social, educational, economic, and cultural needs of the
indigenous Native Hawaiians. This proposed bill sets the institutional
framework for the establishment of a relationship between the United
States and the indigenous Native Hawaiians, just as Congress has done
for the indigenous American Indians and indigenous Native Alaskans.
I submit, Mr. Speaker, there are only three distinct indigenous
groups under the U.S. sovereignty: American Indians within the
continental United States, Native Alaskans, and Native Hawaiians.
Mr. Speaker, the bill we have before us today will continue the long
but necessary road towards full recognition by the Congress of the
rights of the indigenous Native Hawaiians.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. RAHALL. I yield the gentleman 30 additional seconds.
Mr. FALEOMAVAEGA. The underlying issue in this piece of legislation
is not about the existence of Native Hawaiians. That much has been
already determined. This bill is to establish a process giving the
indigenous Native Hawaiians the same status that we have done for the
indigenous American Indians and the indigenous Native Alaskans. Nothing
to do with race. It is about giving proper recognition, and also as a
moral imperative on the part of our government, give proper recognition
to the Native Hawaiians. They deserve this. They are not begging for
anything. Just give them proper recognition. I ask my colleagues to
support this bill.
Mr. Speaker, I rise in strong support of the ``Native Hawaiian
Government Reorganization Act of 2009.'' This important piece of
legislation is to reaffirm the special political and legal relationship
between the United States and the indigenous Native Hawaiians for
purposes of continuing a government-to-government relationship. I want
to thank Chairman Nick Rahall and members of the Committee on Natural
Resources for their support. I especially want to commend and recognize
my good friend and colleague, the gentleman from Hawaii, Mr.
Abercrombie, for his leadership and tireless efforts in bringing this
legislation to the floor for consideration. For some 20 years, I've had
the privilege of working closely with Mr. Abercrombie on legislation
that has benefited both constituents and the great State of Hawaii. I
also want to commend my good friend, Ms. Hirono, and other Members for
their cosponsoring this legislation.
The legislation before us is very important for many reasons, but
none more critical than for Congress to extend full recognition to some
400,000 indigenous Native Hawaiians in the State of Hawaii.
Constitutionally, Congress has the authority to address the conditions
of the native people of the United States and the indigenous people of
the Hawaiian Islands are a distinctly native community that for many
years existed as a sovereign entity. History shows that from 1826 until
1893, the United States government recognized the Kingdom of Hawaii as
a sovereign and independent nation; accorded full diplomatic
recognition to the Kingdom of Hawaii; and entered into treaties and
conventions of peace, friendship and commerce with the Kingdom of
Hawaii to govern trade, commerce, and navigation in 1826, 1842, 1849,
1875 and 1887. Yes, even our government, the United States of America
was a party to these treaties and conventions with the Sovereign
Kingdom of Hawaii.
Mr. Speaker, more than 100 years ago, ambitious descendants of U.S.
missionaries and sugar planters, aided by the unauthorized and illegal
use of U.S. military forces, overthrew the sovereign Kingdom of Hawaii
which at that time was ruled by Queen Lili'uokalani. In 1993, Congress
reaffirmed such a travesty on the Kingdom of Hawaii when they passed a
joint resolution to acknowledge and apologize on behalf of the United
States for the illegal and unlawful overthrow of the Hawaiian Kingdom
in 1893, and for the deprivation of the rights of the indigenous Native
Hawaiians to self-determination.
To this day, the status of the indigenous Native Hawaiians was never
properly addressed by the United States Congress. And it is within
Congress' constitutional authority to do so. Congress and U.S. Supreme
Court decisions have properly determined that American Indians of the
lower 48 States are an indigenous people. In fact, recognition of the
Native Alaskans as indigenous people of the U.S. demonstrates this
constitutional power. And even the U.S. Supreme Court has recognized
this constitutional authority and has accepted a broader
conceptualization of indigenous people, allowing Congress to recognize
indigenous groups, even those who are culturally and genealogically
distinct from the narrow concept of being an ``Indian'' and ``tribe.''
In 1971, Congress enacted the Alaska Native Claims Settlement Act
(ANCSA), adopting special legislation to deal with Native Alaskans'
land claims and creating a governing structure (corporations) through
which to manage the federal relationship with the indigenous group even
though the Alaska Natives differed culturally, historically, and
genealogically from American Indians. In the ANCSA, ``Native'' in
defined to mean ``a citizen of the U.S. who is a person of one-fourth
degree or more Alaska Indian, Eskimo, Aleut blood, or combination
thereof'' and ``Native Group'' to mean ``any tribe, band, clan,
village, community, or village of Natives in Alaska.'' The indigenous
Native Hawaiians also meet these definitions.
In the Hawaiian Homes Commission Act of 1921, Congress expressed and
reaffirmed the ``special'' and ``trust'' relationship between the
United States and the Native Hawaiians. In addition, the Act also
recognized Native Hawaiians as ``a distinct and unique indigenous
people.'' Native Hawaiians are, in fact, indigenous, aboriginal people
living within what are now the borders of the U.S. and it is
unfortunate that even today the status of some 400,000 indigenous
Native Hawaiians have yet to be afforded this same recognition as our
First Americans.

Although Rice vs. Cayetano has no bearing on this legislation, I
should note that the Supreme Court's decision states, ``Congress . . .
has determined that native Hawaiians have a status like that of
organized Indian tribes.'' Even the author of the State's brief, now
Chief Justice John Roberts of the U.S. Supreme Court, clearly explained
that the Congress has plenary authority that is not limited to only
American Indians by stating the following:

Congress is constitutionally empowered to deal with
Hawaiians, has recognized such a ``special relationship,''
and--``in recognition of that special relationship''--``has
extended to Native Hawaiians the same rights and privileges
accorded to American Indian, Alaska Native, Eskimo, and Aleut
communities.'' Congress has established with Hawaiians the
same type of ``unique legal relationship'' that exists with
respect to the Indian tribes who enjoy the ``same rights and
privileges'' accorded Hawaiians under these laws.

Over the years, the treatment of indigenous Native Hawaiians by the
U.S. government has been piecemeal at best. There is estimated over 160
laws that have been passed by the Congress related to the social,
educational, economic, and cultural needs of the indigenous Native
Hawaiians. This proposed bill sets the institutional framework for the
establishment of a relationship between the U.S. and the indigenous
Native Hawaiians just as Congress has done for the indigenous American
Indians and indigenous Native Alaskans. I submit, there are only three,
district indigenous peoples, under U.S. sovereignity--American Indians
within the continental United States, Native Alaskans and Native
Hawaiians.
Mr. Speaker, the proposed bill that we have before us today will
continue the long but necessary road towards full recognition by
Congress of the indigenous Native Hawaiians. The underlying issue in
this piece of legislation is not about the existence of the Native
Hawaiians. That much has already been determined. This bill however is
to establish a process by giving the indigenous Native Hawaiians the
same status as we have done for the indigenous American Indians and the
indigenous Native Alaskans.
I respectfully urge my fellow colleagues to support this bill.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 3
minutes to the gentleman from Oklahoma (Mr. Cole).
Mr. COLE. I thank the gentleman for yielding.
Mr. Speaker, I want to begin by thanking my good friend Mr.
Abercrombie for his distinguished career

[[Page H713]]

and our good friendship. And the fact that I am rising in support of
this bill and my good friend Mr. Young has risen in support of this
bill is certainly an indication it is not a partisan measure. Frankly,
our side did not decide to whip this. So this really is a nonpartisan
question before the Congress. It is not an issue of race, as some would
argue. It is not an issue of States' rights, as some would argue.
It is actually, in the end, a question of Federal authority and how
the Federal Government chooses to treat indigenous peoples. And
frankly, if we want to look at that, we ought to be guided by our own
Constitution, our own legal traditions, and our own actions as a
Congress. Over 200 years of American history has taught us from the
very beginning, from the foundation of the Constitution, that we had
decided we will treat native peoples as individual subordinate
sovereign units, and we will negotiate our relationships with them.
Now, we haven't always lived up to that idea, no question about it.
Over the course of our history there has been efforts to destroy native
nations. There has been efforts to remove them from their homeland.
There has been efforts at forced assimilation. But when we have adhered
to our constitutional traditions, and negotiated and dealt with native
peoples on a government to government basis, the relationship has been
a good and productive one.
The facts of this case are very clear. From the very beginning, we
recognized Native Hawaiians as a distinct and separate group. We have
passed over 160 statutes in the Congress of the United States. And
frankly, this measure before us is not going to reshape Hawaii. It will
regularize the relationship between Native Hawaiians and their State
and Federal Government and allow a negotiation to take place.
Now, I make no bones about the fact that I favored the original 2007
bill. I did that not because it was necessarily a superior bill, but
because it allowed a negotiated process that I thought would actually
ease this transition. But at the end of the day, the question is one of
constitutional propriety and sovereign rights and appropriate
procedure. And this bill meets all of those tests.
So I look forward to its passage, and I look forward to the fact that
it will have broad bipartisanship support, and I look forward, Mr.
Speaker, to once again reflecting on our own remarkable traditions as a
country and as a people. We don't always do the right thing, but
eventually we do the just thing. And in this situation, recognizing
Native Hawaiians is the just thing to do. I urge support for this
legislation.
Mr. RAHALL. Mr. Speaker, I yield 3 minutes to the gentleman from
California (Mr. Honda).
Mr. HONDA. I want to thank the chairman for this opportunity.
For those who are in this debate, I think this is what Congress is
all about, where we talk about very substantive issues. And this is one
of those most important issues because it affects our relationship with
other countries, other States, and other indigenous people. And in this
case, indigenous people who are considered sovereign entities. And this
is what we are trying to accomplish for the Native Hawaiians in Hawaii.
This is not about race. I think when we use race and other things it
sort of muddies up the issues. And I think that our colleague,
Congressman Cole, explains it very clearly. And as a teacher, and I am
not a lawyer, but as a teacher and as a very simple person not
understanding all the laws and all the terminologies in law, how he
explains it is very clear.
I think the people of this country understand clear talk. When they
hear clear talk they understand that when we are talking about justice
and equality and recognizing indigenous people, it becomes very, very
evident which way we should go.
This is, like Congressman Cole said, this is about Federal authority
under the Constitution. And the 48 States had already done this with
indigenous people. Some people call them Indian tribes, but
nonetheless, they were indigenous people. Mr. Young, from the 49th
State, indicates the same sentiment. And that when they became the 49th
State, their considerations to indigenous people, or Indian tribes,
they accorded them the same kind of consideration of self-
determination. Hawaii is trying to do the same thing, the 50th State.
And so it seems like if the previous 49 States are able to do this,
this is one of replication, and there is a lot of things being
established. And Chairman Rahall had indicated what this bill is not
about. And that should just clearly set aside any kinds of arguments
against this kind of an effort.
I appreciate the work of both Mr. Abercrombie and Ms. Hirono. And I
think that under the Constitution and under the eyes of justice, and
for those who are clear thinkers in the Congress, this should be a no
brainer. We should approve this bill and make it into law and finally
recognize the people of Hawaii, the indigenous people of Hawaii as who
they are, a self-determining indigenous group.
The Federal courts did not talk about when it was brought up about
the moneys being used for the native tribes.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. HONDA. If I could have 30 seconds.
Mr. RAHALL. I yield the gentleman 5 seconds.
Mr. HONDA. In 5 seconds, Federal moneys cannot be used for State
elections. State elections cannot be used for private kinds of
elections. That is what they were saying. It is not about race.
Mr. HASTINGS of Washington. Mr. Speaker, I would like to yield 3
minutes to the gentleman from Iowa (Mr. King).
Mr. KING of Iowa. I thank the gentleman from Washington for yielding
some time on this subject matter.
Mr. Speaker, I rise in opposition to this bill, the Native Hawaiian
Government Reorganization Act, whether it is amended or whether it is
not amended. And I do so, Mr. Speaker, because first of all, the United
States of America was founded upon the principle of equality, the
principle of equality before the law. And we have further built upon
the principle of equality of opportunity.
As I have listened to each of the speakers address this tonight,
there seems to be a continuing theme that there are specific groups of
people that deserve a certain kind of specific consideration before the
law and before the appropriations of the United States Congress, and
specific access to assets that might be utilized for their specific
use, as opposed to other Hawaiians that aren't defined as Native
Hawaiians.
I recall the debate back in 1959 when Hawaii and Alaska were both
brought into the union, and I recall the discussions that were there
then about the success that Hawaii had had by assimilating peoples into
the broader society of Hawaii, and about how we didn't have to worry
about the expression--then it wasn't Balkanization--but we didn't have
to worry about the Hawaiians dividing themselves into separate and
competing ethnic groups, that they were assimilated.

{time} 1845

Assimilation was the watchword of the day, the code of the day, and
that was the message and the promise and the commitment that Hawaiians
made to the United States Congress when they were brought into the
Union as a State.
Well, today we see a piece of legislation that comes before us that
defies the very concept that was a principle that was clearly
understood here on this floor of this Congress when Hawaii was brought
into the Union.
And when I look at what this does, the broad definition of Native
Hawaiians that might mean Native Hawaiians anywhere where they are in
the United States that could be brought under this umbrella of
beneficiaries of assets that could be as great as 40 percent of the
land mass of the State of the Hawaii to be governed and regulated by
self-described, self-defined Native Hawaiians at the expense of
everyone else, and I wonder how good these promises might be, the
promises that we wouldn't set up gaming institutions, we wouldn't set
up toll roads or roadblocks; this would just be a very compatible,
logical pro-tourism industry. It might be. In fact, it probably will
be, Mr. Speaker.
But I am so concerned about the broader fundamental principle that
applies here. And I would argue that the

[[Page H714]]

gentleman that has spoken on behalf of those Native Americans that
actually are real tribes by definition that exists within statute and
within the tradition of law, have no solution for the reservation
system that we have. They envision it the same 100 years from now as it
is today. And so we see the replication of pathologies from reservation
to reservation and not the opportunities.
I would have supported the Dawes Act however many years ago.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. HASTINGS of Washington. I yield the gentleman 1 additional
minute.
Mr. KING of Iowa. I thank the gentleman, and I'd just make this
point. When I read the material on this coming back up again, and I so
appreciate Mr. Abercrombie's work, and I know his heart and his head
are in this. This is in a verbatim email that I wrote up to my staff,
and it goes this way.
This bill makes a resounding statement that even Native Hawaiians
can't be assimilated into a Western society. I disagree. It is a
fundamental statement that goes to the heart of what it means to be an
American. If, after all these years, Native Hawaiians have to be
tribalized in order to function in a modern society, all Americans then
must, by the identical logic, be Balkanized.
Mr. Speaker, the philosophy is wrong underneath this. However good
the thoughts are, Americans should be assimilated, not subdivided. We
should not be pitted against each other, and Americans should not have
certain assets designated to them because of the ancestry that they
claim. We should be all Americans under one flag.
Mr. RAHALL. Mr. Speaker, we're ready to close when the other side is.
Is the gentleman from Washington ready to close?
Mr. HASTINGS of Washington. If the gentleman's the last speaker, then
I am the last speaker on my side. I yield myself the balance of the
time, Mr. Speaker.
The SPEAKER pro tempore. The gentleman from Washington is recognized
for 1 minute.
Mr. HASTINGS of Washington. Mr. Speaker, just let me kind of
summarize some of the overreaching debate that we've had here today.
This issue has been around this Congress for over 10 years, and this
issue has had broad support within the State of Hawaii, Mr. Speaker,
for over 10 years. And the underlying bill, before we will vote on the
substitute, the underlying bill has broad support in the State of
Hawaii.
But now we are going to have an amendment that was not written in
public, and, in fact, as I mentioned in my earlier remarks, Governor
Lingle is opposed to this approach on this bill, even though she agrees
wholeheartedly with the issue of recognition for Native Hawaiians.
So, Mr. Speaker, I take everybody's word that's involved in this that
it will be worked out to everybody's satisfaction. But, Mr. Speaker,
why should we, on the floor of the House----
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. HASTINGS of Washington. With that, Mr. Speaker, I just urge my
colleagues to vote against the substitute. I'll talk about that later.
Mr. RAHALL. Mr. Speaker, I'm very happy to yield the balance of our
time to the gentleman from Hawaii (Mr. Abercrombie).
Mr. ABERCROMBIE. Mr. Speaker, I want to thank all my colleagues here
today, and I want to thank those especially who have risen in
opposition. This is what our democracy is all about. My only regret in
extending my aloha to those who may not feel able to vote for the bill
today is that you have not had an opportunity, perhaps, to visit with,
to understand, and to comprehend what it means to be a Native Hawaiian.
It is, of course, very easy for someone to say well, how can you do
that; you came from somewhere else.
I was born and raised just outside Buffalo, New York. I came to
Hawaii some 50 years ago, with statehood, given the opportunity to go
to the University of Hawaii as a graduate teaching assistant. And the
first thing that happened to me as I came that great distance, across
the continent and across the ocean, then in a Pan American Clipper, it
took 10 hours just to get from the coast to Hawaii. And when I took
that first breath of Hawaiian air and saw the gorgeous curves of the
island of Oahu, Diamondhead, Waikiki, and the first evening, taken to
Manoa Valley, where I now reside, it was as if destiny had called.
And the first contact that I had was with my Chinese Hawaiian friend,
Solomon Lu, God rest his soul, whose family took me in and treated me
as one of their own. And that's what Hawaii is all about.
Mr. Speaker, this is not about race. This is about the aloha spirit.
This is about the rainbow State of Hawaii. This is about Native
Hawaiians who give us the host culture and the fundamental sense of who
we are as human beings. And the diversity that defines us in Hawaii
that does not divide us is the kind of diversity and definition we need
in this House of Representatives, that we need in the United States of
America.
This is Hawaii's gift to the United States. It is its gift to the
world, the spirit of aloha. And in that same spirit of aloha, I ask for
a vote favorably on behalf of the Native Hawaiian recognition bill.
The SPEAKER pro tempore. All time for debate on the bill has expired.

____________________