[Congressional Record Volume 156, Number 28 (Tuesday, March 2, 2010)]
[Extensions of Remarks]
[Pages E274-E277]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2009

                                 ______
                                 

                          HON. MAZIE K. HIRONO

                               of hawaii

                    in the house of representatives

                         Tuesday, March 2, 2010

  Mr. HIRONO. Mr. Speaker, I rise today to provide additional remarks 
on H.R. 2314, the Native Hawaiian Government Reorganization Act of 
2009, a bill the House passed with a clear majority vote of 245-164 on 
February 23, 2010.
  At the end of the 18th century, King Kamehameha I united the separate 
island chiefdoms under one Hawaiian monarchy, which was recognized by 
the United States. This unified Native Hawaiian self-rule continued 
through most of the 19th century, with Native Hawaiians 
``constitut[ing] the overwhelming majority of the political community 
that participated in decisionmaking in the Kingdom,'' (Jon M. Van Dyke, 
Population, Voting, and Citizenship in the Kingdom of Hawai'i, 28 U. 
Haw. L. Rev. 81, 81 (2005)), and came to an end only when, in 1893, 
commercial interests overthrew the Hawaiian monarchy with the support 
of the U.S. government.
  Even after the overthrow of the Hawaiian monarchy, Native Hawaiians 
have continued to maintain their separate identity as a single 
distinctly political community through cultural, social, and political 
institutions, and through efforts to develop programs to provide 
governmental services to native Hawaiians. For example, the Hawaiian 
Protective Association--a political organization with by-laws and a 
constitution that sought to maintain unity among Native Hawaiians, 
protect Native Hawaiian interests (including by lobbying the 
legislature), and promote the education, health, and economic 
development of Native Hawaiians--was ``organized [in 1914] . . . for 
the sole purpose of protecting the Hawaiian people and of conserving 
and promoting the best things of their tradition'' (Hearing on H.R. 
13500 Before the Committee on Territories, 66th Cong., 3d Sess. 44 
(Dec. 14, 1920) (Rev. Akaiko Akana)).
  To this end, the Association established twelve standing committees, 
published a newspaper, and also developed the framework that became the 
Hawaiian Homes Commission Act (HHCA) in 1921. In 1918, Prince Jonah 
Kuhio Kalanianaole, a U.S. delegate to Congress, founded the Hawaiian 
Civic Clubs, the goal of which was to perpetuate the language, history, 
traditions, music, dances and other cultural traditions of Hawaii. The 
clubs' first project was to secure enactment of HHCA and the clubs 
remain in existence today.
  Efforts to maintain a distinct political community have continued 
into the present day. Examples include the 1988 Native Hawaiian 
Sovereignty Conference; the Kau Inoa organization, which registers 
Native Hawaiians for a movement toward a Native Hawaiian governing 
entity; the efforts to protect the North Western Hawaiian Islands 
because of their cultural and traditional significance; the creation in 
the Hawaii State Constitution of the Office of Hawaiian Affairs, which 
serves as an entity to protect Native Hawaiian interests; and the 
development of traditional justice programs, including a traditional 
method of alternative dispute resolution, ``ho`oponopono,'' which has 
been endorsed by the Native Hawaiian Bar Association.
  Moreover, as the findings of H.R. 2314 explain, the Native Hawaiian 
people have actively maintained native traditions and customary usages 
throughout the Native Hawaiian community and the Federal and State 
courts have continuously recognized the right of the Native Hawaiian 
people to engage in certain customary practices and usages on public 
lands.
  For example, traditional Native Hawaiian fishing and water rights are 
protected by state law (Haw. Rev. Stat. Sec. 174C-101(c) & (d) (2008) 
(stating that certain traditional and customary water rights ``shall 
not be abridged or denied,'' or ``diminished or extinguished,'' by 
provision of the State Water Code)]; id. Sec. 187A-23 (1985) (providing 
for recognition of certain ``vested fishing rights'' linked to 
``ancient regulations'').
  Hawaii courts have also recognized and upheld traditional gathering 
and access rights, (See, e.g., Public Access Shoreline Hawaii v. Hawaii 
County Planning Comm'n, 903 P.2d 1246 (Haw. 1995); State v. Hanapi, 970 
P.2d 485 (Haw. 1998); Kalipi v. Hawaiian Trust Co., 656 P.2d 745 (Haw. 
1982)). Further, Native Hawaiian traditional practices are often 
permitted on federal parks land (See, e.g., 16

[[Page E275]]

U.S.C. Sec. 396d (KalokoHonokohau National Historical Park). These 
practices and legal protections further reinforce the Native Hawaiian 
community's continuing status as a distinctly native community.
  Congress has recognized the distinct status of the Native Hawaiians 
by ``extend[ing] services to [them]'' on the basis of that status, 
recognizing that they are ``the native people of a prior-sovereign 
nation with whom the United States has a special political and legal 
relationship.'' (See, e.g., Brief of United States at 4-5 & nn.2-4, 
Rice v. Cayetano, 528 U.S. 495 (2000) (noting that Congress has 
``established special Native Hawaiian programs in the areas of health 
care, education, employment, and loans,'' ``has enacted statutes to 
preserve Native Hawaiian culture, language, and historical sites, and 
``by classifying Native Hawaiians as `Native Americans' under numerous 
federal statutes, . . . has extended to Native Hawaiians many of `the 
same rights and privileges accorded to American Indian, Alaska Native, 
Eskimo, and Aleut communities' '' and collecting examples of these 
congressional acts)).
  Other specific examples of Congress' recognition of the distinct 
status of the Native Hawaiians include the Native American Language Act 
of 1990, which recognized and clarified the language rights of American 
Indians, Alaskan Natives, Native Hawaiians, and Pacific Islanders and 
explicitly allowed exceptions to teacher certification requirements for 
instruction in Native American languages; the Native Hawaiian Education 
Act of 1988 (Title IV of the Augustus F. Hawkins-Robert T. Stafford 
Elementary and Secondary School Improvement Amendments of 1988) which 
awarded $30 million annually in competitive education grants to 
programs benefitting native Hawaiian students; the Native Hawaiian 
Assessment Project of 1983; and special education programs specifically 
targeting Native Hawaiian students.
  As the 1993 Apology Resolution and other recent federal statutes 
extending educational and health benefits to Native Hawaiians make 
clear, Congress has found that: (1) Native Hawaiians are ``a distinct 
and unique indigenous people with a historical continuity to the 
original inhabitants of the Hawaiian archipelago,'' 42 U.S.C. 11701(1); 
20 U.S.C. 7902(1); (2) Native Hawaiians exercised sovereignty over the 
Hawaiian Islands, 20 U.S.C. 80q-14(11); (3) the overthrow of the 
Kingdom of Hawaii was ``illegal'' and deprived Native Hawaiians of 
their right to ``self-determination,'' 107 Stat. 1513; (4) the 
government installed after the overthrow ceded 1.8 million acres of 
land to the United States ``without the consent of or compensation to 
the Native Hawaiian people of Hawaii or their sovereign government,'' 
id. at 1512; (5) ``the indigenous Hawaiian people never directly 
relinquished their claims to their inherent sovereignty as a people or 
over their national lands to the United States,'' ibid.; and (6) ``the 
Native Hawaiian people are determined to preserve, develop and transmit 
to future generations their ancestral territory, and their cultural 
identity in accordance with their own spiritual and traditional 
beliefs, customs, practices, language, and social institutions,'' id. 
at 1512-1513.
  Those findings demonstrate that indigenous Hawaiians, like numerous 
tribes in the continental United States, share historical and current 
bonds within their community. Also like tribes in the continental 
United States, Native Hawaiians, pursuant to Acts of Congress, have 
substantial lands set aside for their benefit: 200,000 acres of 
Homestead Act land on which there are thousands of leases to Native 
Hawaiians that furnish homes to tens of thousands of Hawaiians, and a 
20 percent interest in the income generated by 1.2 million acres of 
public trust lands under the Admission Act.
  The fact that the indigenous Hawaiian community does not presently 
have a central operating tribal government recognized by the U.S. 
Department of the Interior does not remove that community from the 
scope of Congress's Indian affairs power. Initially, the Constitution 
does not limit Congress's Indian affairs power to groups with a 
particular government structure. ``[S]ome bands of Indians, for 
example, had little or no tribal organization, while others were highly 
organized.'' (Fishing Vessel Ass'n, 443 U.S. at 664). Nor does the 
Constitution limit Congress's power to groups that continue to exercise 
all aspects of sovereignty. European ``discovery'' and the 
establishment of the United States necessarily diminished certain 
aspects of Indian sovereignty (Johnson, 21 U.S. (8 Wheat.) at 574; 
Cherokee Nation, 30 U.S. (5 Pet.) at 45). Thus, under the Constitution, 
``[f]ederal regulation of Indian tribes . . . is governance of once-
sovereign political communities'' (Antelope, 430 U.S. at 646).
  Moreover, the United States' authority over Indian affairs does not 
emanate simply from the Commerce Clause's reference to ``Indian 
Tribes.'' Rather, the Constitution implicitly gives Congress power to 
manage Indian affairs more generally (Seber, 318 U.S. at 715; Sandoval, 
231 U.S. at 45-46; Kagama, 118 U.S. at 383-384). That power does not 
disintegrate when an indigenous people loses its formal government 
structure. In the first place, the loss of a particular form of 
government is not tantamount to termination of all sovereignty or of 
the prospect that sovereignty might be given expression in the future 
through governmental or other structures. In the case of Native 
Hawaiians, a variety of Native Hawaiian organizations are active in a 
broad range of Native political, cultural, religious, legal, and land-
related matters, and furnish vehicles for the expression of self-
determination over important aspects of Hawaiian affairs, and thus 
confirms that Native Hawaiians constitute a present-day ``political'' 
community (Cf. 25 C.F.R. 83.7(c)).
  Further, the Supreme Court has made clear that a central operating 
tribal government is not a predicate for legislation on behalf of 
indigenous people. For example, in John, 437 U.S. at 634, the Court 
upheld the power of Congress to provide for a group of Mississippi 
Choctaw Indians that did not have a federally recognized tribal 
government. The United States had entered into a treaty under which the 
Choctaw Indians would leave Mississippi by 1833. In the 1890s, however, 
the United States became aware that a group of Choctaws had not left 
Mississippi. Even though the United States did not regard that 
remaining group as members of a federally recognized tribe, it began to 
provide services and land to individual Choctaws in Mississippi.
  In 1939, Congress declared that the lands that had been purchased for 
individual Choctaws would be held in trust for Choctaw Indians of one-
half or more Indian blood, resident in Mississippi, and in 1944, 
Congress made those lands a reservation. Finally, in 1945, Mississippi 
Choctaws of one-half or more Indian blood adopted a constitution and 
bylaws, which were then approved by the appropriate federal officials.
  Against that background, Mississippi argued that Congress lacked 
constitutional authority to establish federal criminal jurisdiction in 
the Choctaw Reservation (John, 437 U.S. at 652). The U.S. Supreme Court 
rejected that argument, explaining: ``[I]n view of the elaborate 
history of relations between the Mississippi Choctaws and the United 
States, we do not agree that Congress and the Executive Branch have 
less power to deal with the affairs of the Mississippi Choctaws than 
with the affairs of other Indian groups. Neither the fact that the 
Choctaws in Mississippi are merely a remnant of a larger group of 
Indians, long ago removed from Mississippi, nor the fact that federal 
supervision over them has not been continuous, destroys the federal 
power to deal with them.''
  I would like to take this opportunity to provide clarification on the 
legislative intent of H.R. 2314, particularly for Sections 2, 3, 4, 5, 
7, 8, and 9. My remarks for Sections 3 and 9 are supplementary to the 
remarks previously made by Congressman Abercrombie.


                            SEC. 2. FINDINGS

  Section 2 sets forth Congressional findings that support this 
legislation. These findings, among other things, identify some of the 
key respects in which Congress has previously legislated for the 
benefit of the Native Hawaiian people--thereby recognizing them as a 
distinctly native community and thus within Congress's power to 
legislate in respect of Indian tribes--and discusses some of the past 
and current ways in which the Native Hawaiian peoples have preserved 
their culture, traditions, and identity as a distinctly native people, 
and given expression to their rights as native peoples to self-
determination and self-governance.


                          SEC. 3. DEFINITIONS

  Congressman Abercrombie, the bill's chief sponsor, has extensively 
discussed this section of the bill. To supplement his remarks, I would 
like to clarify that Kuleana lands are parcels of land granted to 
Native Hawaiian tenant farmers between 1850 and 1855. In 1848, in what 
is known as the Great Mahele, King Kamehameha III divided up land among 
the Kingdom, high-ranking chiefs, and the territorial government, 
``subject to the rights of the native tenants (2 Rev. Laws Haw. 2152 
(1925)).
  The Kuleana Act of August 6, 1850, provided a process by which native 
tenants who had occupied and improved the land could apply to the Land 
Commission for a royal patent and obtain fee title to those parcels of 
land (Jon J. Chinen, The Great Mahele: Hawaii's Land Division at 29, 31 
(1958)). Approximately 28,600 acres of land were awarded under the 
Kuleana Act (U.S. Departments of Interior and Justice, From Mauka to 
Makai: The River of Justice Must Flow Freely, at 24 (2000)).
  Also, it should be noted that in its tribal acknowledgment process, 
the U.S. Department of the Interior has repeatedly relied on 
participation in community organizations as an important indicator of 
the existence of a distinct community. Community activities that the 
Department has cited in support of the existence

[[Page E276]]

of a community include churches, organizations devoted to management of 
group cemeteries, the existence of organized social functions or 
collective economic activity, and organized participation in political 
activities and debate (Branch of Acknowledgment and Research, 
Acknowledgment Precedent Manual at 26-32 (2002)).
  For example, in concluding that it was appropriate to acknowledge the 
Jena Band of Choctaw Indians as a sovereign Tribe, the Department 
cited, among other considerations, the Tribe's collective maintenance 
of a cemetery and associated traditional practices, and the existence 
of a Tribal organization that ``conducts Choctaw language and history 
classes at the tribal center after school hours and during the summer'' 
(Proposed Finding for Federal Acknowledgment of the Jena Band of 
Choctaw Indians, 59 Fed. Reg. 54,496 (Oct. 31, 1994); see also 60 Fed. 
Reg. 28,480 (May 31, 1995) (final acknowledgment)). Likewise, the 
ability of leaders to organize a community to address a particular 
issue has been cited as evidence of the existence of internal political 
organization, another criterion for acknowledgment. For example, the 
Acknowledgment Precedent Manual cites the ability of a Narragansett 
leader to organize opposition to the draining of a cedar swamp as 
evidence supporting acknowledgment of that group ((Branch of 
Acknowledgment and Research, Acknowledgment Precedent Manual at 40 
(2002)).


                SEC. 4. UNITED STATES POLICY AND PURPOSE

  In Section 4, the United States reaffirms its political and legal 
relationship with the Native Hawaiian people, and the distinct nature 
of the Native Hawaiian community. Section 4 also explains that Congress 
is exercising its ability to enact legislation directed to Native 
Hawaiians, and reaffirms that Native Hawaiians have an inherent right 
to autonomy in their internal affairs and an inherent right to self-
determination and self-governance.
  In acting to promote Native Hawaiian autonomy and self-government, 
Congress is acting in accord with the United States' policy over the 
last several decades toward Indian tribes generally (See, e.g., Indian 
Self-Determination and Education Assistance Act of 1975, Pub. L. No. 
93-638, 88 Stat. 2203 (codified as amended at 25 U.S.C. Sec. Sec. 450-
458bbb-2 (2007) (recognizing the obligation of the United States to 
advance Indian ``self-determination by assuring maximum Indian 
participation in the direction of . . . Federal services to Indian 
communities so as to render such services more responsive to the needs 
and desires of those communities''); Indian Financing Act of 1974, as 
amended, 25 U.S.C. Sec. 1451 (2007) (expressing Congress's policy ``. . 
. to help develop and utilize Indian resources . . . to a point where 
the Indians will fully exercise responsibility and management of their 
own resources''). See also Executive Order 13175, 59 Fed. Reg. 22951 
(Nov. 9, 2000) (``The United States recognizes the right of Indian 
tribes to self-government and supports tribal sovereignty and self-
determination.'')).


       SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS

  The United States Office for Native Hawaiian Relations, established 
by section 5, and the Native Hawaiian Interagency Working Group, 
established by section 6, are required to consult with the Native 
Hawaiian governing entity on federal programs or policies that may 
affect Native Hawaiian rights, resources, or lands. The nature and form 
of this consultation is expected to parallel the consultation process 
for Indian tribes, which is guided presently by the requirements of 
Executive Order 13175 and by the President's November 5, 2009 
memorandum on the implementation of that Order. Executive Order 13175 
requires that federal agencies have in place a process to allow 
meaningful input from tribes in the development of regulations and 
policies that have significant implications for tribes. The Hawaii 
Congressional Delegation anticipates that the consultation envisioned 
by this section will proceed in a similar manner.


      SEC. 7. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE

  This section provides for the U.S. Department of Justice to designate 
an official to assist the Office of Native Hawaiian Relations in 
carrying out its functions. The Department of Justice already has an 
office that performs a similar function with respect to 
the Department's relationship with Indian tribes, the Office of Tribal 
Justice. The Hawaii Congressional Delegation anticipates that the 
official designated under this section will carry out his or her 
functions in a similar manner.


SEC. 8. PROCESS FOR REORGANIZATION OF NATIVE HAWAIIAN GOVERNING ENTITY 
 AND REAFFIRMATION OF SPECIAL POLITICAL AND LEGAL RELATIONSHIP BETWEEN 
        THE UNITED STATES AND NATIVE HAWAIIAN GOVERNING ENTITY.

  Federal recognition of a Native Hawaiian governing entity does not 
occur immediately upon enactment of the bill. Only after the 
certification requirements described in section 8(c)(4) are met would 
the United States reaffirm its special political and legal relationship 
with the Native Hawaiian governing entity, and extend federal 
recognition to the Native Hawaiian governing entity. Sec. 8(c)(6).
  Section 8 sets out the process for the reorganization of the single 
Native Hawaiian governing entity. As previously discussed, Congress has 
a long history of enacting such legislation under its Indian affairs 
power. The process in H.R. 2314 for recognizing a Native Hawaiian self-
governing entity is analogous to the process established by prior 
tribal reorganization legislation, and also to the process by which the 
United States recognizes Indian tribes.
  For example, H.R. 2314 would establish a ``roll of Native Hawaiian 
constituents'' that would define initial membership in the Native 
Hawaiian self-governing community based on lineal descent and continued 
connection to the Native Hawaiian community and Native Hawaiian lands. 
Prior tribal restoration acts have similarly relied on an initial roll 
in determining eligibility to participate in tribal reorganization 
elections (See, e.g., 25 U.S.C. Sec. 711b(a) & (b)).
  Current federal regulations similarly require newly recognized tribes 
to submit a ``base roll'' of members, and these rolls can be based in 
part on rolls prepared by the Department of the Interior for purposes 
of federal allotments (See 25 CFR Sec. Sec. 83.7(e)(1)(i), 83.12(b); 
see also 25 U.S.C. Sec. 476(a) (``Indian Reorganization Act of 1934'') 
(providing that Indian Tribes ``shall have the right to organize for 
its common welfare, and may adopt an appropriate constitution and 
bylaws, which shall become effective when ratified by a majority vote 
of the adult members of the tribe . . . at a special election 
authorized and called by the Secretary of the Interior under such rules 
and regulations as he may prescribe'')).
  Section 8 goes on to provide for verification of eligibility by a 
Commission established by the Secretary of the Interior, and an initial 
election for members of a Native Hawaiian Interim Governing Council 
through a series of meetings organized by the Commission in 
consultation with the Secretary. It also provides that the Council, 
after developing organic governing documents, shall submit them to the 
Secretary for certification. These procedures closely track the 
procedures set forth in previous reorganization legislation enacted 
with respect to Indian tribes (See, e.g., 25 U.S.C. Sec. 711a et seq.).
  In general, Section 8 calls for the federal government to play a 
relatively minor role in setting the rules for the election of officers 
of the Native Hawaiian governing entity. In particular, while the 
federally created Commission will call an initial meeting for persons 
on the roll, it is these roll members who will determine the criteria 
for candidates to serve on the Council, determine the structure of the 
Council, and elect its members. The degree of federal involvement 
contemplated by H.R. 2314 is thus consistent with the historical role 
Congress has played in assisting Indian tribes in reorganizing 
politically (See 25 U.S.C. Sec. 476(a) (noting that special elections 
for ratifying tribal constitutions and bylaws may be ``authorized and 
called by the Secretary of the Interior under such rules and 
regulations as he may prescribe''); 25 U.S.C. Sec. 711a et seq).


                       Section 8(b). Commission.

  Section 8(b) provides for the creation of a Commission to oversee the 
preparation of a roll of qualified Native Hawaiian constituents. As 
specified in section 8(b)(2), the Commission is expected to be an 
expert body, with particular expertise in Native Hawaiian genealogy and 
culture. The Hawaii Congressional Delegation recognizes that the task 
of compiling a roll of qualified Native Hawaiian constituents is likely 
to be complex, and may require technical decisions as to which 
individuals have a sufficient connection to the Native Hawaiian 
community, based on the criteria set forth in this legislation.
  Relevant types of determinations will include decisions as to which 
types of documentation are sufficient under section 8(c)(1)(C), and as 
to how the definition of ``qualified Native Hawaiian constituent'' that 
appears in section 3(12) will be interpreted and applied. The 
Commission, as the expert body with authority to compile the roll, is 
charged with resolving these questions. The Hawaii Congressional 
Delegation expects that courts and government agencies will accord 
significant deference to the Commission's expert decisions, and will 
allow the Commission to make eligibility decisions in the first 
instance. There is a provision in section 8(c) for an administrative 
appeal for any person whose name is excluded from the roll.
  Moreover, the Hawaii Congressional Delegation emphasizes that the 
Commission is expected to complete a roll of qualified Native Hawaiian 
constituents without delay, in order to allow the organizing process 
set forth in section 8 to proceed on schedule. The Delegation 
anticipates that the Commission will establish appropriate deadlines, 
rules of procedure, and other requirements to allow the timetables set 
forth in this legislation to be met

[[Page E277]]

while giving due consideration to the claims of those seeking to be 
included on the roll.


  Sec. 8(c). Process for Reorganization of Native Hawaiian Governing 
                                Entity.

  Sec. 8(c)(1) Roll: The sole purpose of the roll established by the 
Commission is to compile a list of those qualified Native Hawaiian 
constituents who can take part in the initial reorganization of a 
Native Hawaiian government.
  Sec. 8(c)(1)(C)(III): Permits elderly Native Hawaiians and other 
qualified Native Hawaiian participants lacking birth certificates or 
other documentation due to birth on Hawaiian Home Lands or other 
similar circumstances to establish lineal descent by sworn affidavits 
from two or more qualified Native Hawaiian participants. This provision 
was included to address cases of hardship, and is not expected to be 
applied routinely. The Hawaii Congressional Delegation anticipates that 
the Commission will establish specific prerequisites allowing 
individuals to demonstrate that they are unable to obtain a birth 
certificate.
  Sec. 8(c)(1)(I): Directs the Commission to publish the notice of the 
certification of the roll ``regardless of whether appeals are 
pending.'' This provision is meant to ensure that challenges to the 
roll do not delay organization of the Native Hawaiian governing entity. 
The Hawaii Congressional Delegation emphasizes the importance of the 
deadlines established by this legislation. Barring unusual 
circumstances, the existence of pending disputes as to the inclusion of 
particular individuals on the roll should not be allowed to delay the 
reorganization process set forth in this section.


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

  Congressman Abercrombie has also extensively discussed Section 9 of 
H.R. 2314. To supplement his remarks, I would like to add that ``Indian 
country'' is a term codified by federal statute (18 U.S.C. 1151). 
Although section 1151 defines ``Indian country'' for the purpose of 
delineating the scope of federal criminal jurisdiction over Indians, 
the Supreme Court has applied the definition to determine the scope of 
tribal territorial jurisdiction, as well (Alaska v. Native Village of 
Venetie, 522 U.S. 520, 527 (1998); DeCoteau v. District County, 420 
U.S. 425, 427, n.2 (1975)).
  Because section 1151 expressly refers to ``Indian country,'' ``Indian 
reservation[s],'' ``dependent Indian communities,'' and ``Indian 
allotments''--but never refers expressly to ``Native Hawaiians'' or to 
the ``Native Hawaiian governing entity''--the bill neither creates nor 
recognizes any ``Indian country'' within the State of Hawaii (See Sec. 
10(c)(2)). The scope of the Native Hawaiian governing entity's 
jurisdiction could be changed by further legislation, including 
legislation enacted to implement an agreement negotiated under 
paragraphs (1) and (2) of section 9(c).
  Likewise, the Secretary of Interior lacks statutory authority to take 
land into trust on behalf of the Native Hawaiian sovereign. Such 
authority will only exist if Congress specifically provides for it in 
future legislation. Nor would such territorial jurisdiction arise by 
another method, absent express Congressional direction.
  There has been extensive litigation relating to land claims, claims 
for money damages, and other types of claims, dating back at least to 
1910 (E.g., Hawaii v. OHA, 129 S. Ct. 1436 (2009); Han v. Department of 
Justice, 824 F. Supp. 1480, 1486 (D. Haw. 1993), affd, 45 F.3d 333 (9th 
Cir. 1995); Keaukaha-Panaewa Community Ass'n v. Hawaiian Homes Comm'n, 
588 F.2d 1216, 1224 n. 7 (9th Cir. 1979); Naiwiona Kupuna O mokapu v. 
Dalton, 894 F. Supp. 1397 (D. Haw. 1995); Liliuokalani v. United 
States, 45 Ct. Cl. 418 (1910). See also Burgert v. Lokelani Bernice 
Pauahi Bishop Trust, 200 F.3d 661 (9th Cir. 2000); 'Ohana v. United 
States, 76 F.3d 280 (9th Cir. 1996); Price v. Akaka, 3 F.3d 1220 (9th 
Cir. 1995); Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 1990); Territory v. 
Kapiolani, 18 Haw. 640, 645-46 (1908); Territory v. Puahi, 18 Haw. 649 
(1908); Bush v. Watson, 918 P.2d 1130 (Haw. 1996); Aged Hawaiians v. 
Hawaiian Homes Comm'n, 891 P.2d 279 (Haw. 1995); Bush v. Hawaiian Homes 
Comm'n, 870 P.2d 1272 (Haw. 1994); Pele Defense Fund v. Paty, 837 P.2d 
1247 (Haw. 1992)).
  The Hawaii Congressional Delegation envisions that 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. H.R. 2314 will not limit claims by the Native 
Hawaiian governing entity that first arise after recognition of the 
Native Hawaiian governing entity.
  In closing, I thank my colleagues for their votes in support of 
Native Hawaiians, who, like American Indians and Alaska Natives, have 
an inherent sovereignty based on their status as indigenous, aboriginal 
people. Mahalo nui loa (thank you very much).

                          ____________________