[Congressional Record Volume 157, Number 44 (Wednesday, March 30, 2011)]
[Senate]
[Pages S1978-S1984]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. AKAKA (for himself, Mr. Inouye, Mr. Begich, and Ms.
Murkowski):
S. 675. a bill 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; to the Committee on Indian Affairs.
Mr. AKAKA. Mr. President, today I rise to introduce legislation of
great importance to my state, the Native Hawaiian Government
Reorganization Act of 2011. This bill would ensure parity in federal
policy as it relates to the Native Hawaiian people. It would put them
on equal footing with American Indians and Alaska Natives. I have
sponsored this common-sense legislation since the 106th Congress.
Last December, I spoke here on the Senate floor to reaffirm my
commitment to enact this legislation. I made it clear then to my
colleagues and my constituents that I would be reintroducing this
legislation in the 112th Congress. I am moving forward with the
legislation that was reported out of the Senate Committee on Indian
Affairs in the 111th Congress.
Throughout my Senate career, I have been a member of the Committee on
Indian Affairs. I have worked diligently with my colleagues on the
Committee to champion legislation to improve conditions for our Native
communities across the United States. At the beginning of the 112th
Congress, I became the Chairman of this Committee. I look forward to
working on the many pressing issues for American Indians, Alaska
Natives, and Native Hawaiians. Reconciliation between the United States
and the Native Hawaiian people will be a top priority.
In 1993, I sponsored a measure commonly known as the Apology
Resolution. This resolution was signed into law by President Bill
Clinton. It outlined the history--prior to--and following the overthrow
of the Kingdom of Hawaii, including the involvement in the overthrow by
agents of the United States. In the resolution, the United States
apologized for its involvement--and acknowledged the ramifications of
the overthrow. It committed to support reconciliation efforts between
the United States and the Native Hawaiian people.
However, additional Congressional action is needed.
My legislation allows us to take the necessary next step in the
reconciliation process. The bill does three things. First, it
authorizes an office in the Department of the Interior to serve as a
liaison between Native Hawaiians and the United States. Second, it
forms an interagency task force chaired by the Departments of Justice
and Interior, and composed of officials from federal agencies that
administer programs and services impacting Native Hawaiians. Third, it
authorizes a process for the reorganization of the Native Hawaiian
government for the purposes of a federally-recognized government-to-
government relationship. Once the Native Hawaiian government is
recognized, an inclusive democratic negotiations process representing
both Native Hawaiians and non-Native Hawaiians would be established.
There are many checks and balances in this process. Any agreements
reached would still require the legislative approval of the State and
Federal governments.
Opponents have spread misinformation about the bill. Let me be clear
on some things that this bill does not do. My bill will not allow for
gaming. It does not allow for Hawaii to secede from the United States.
It does not allow for private land to be taken. It does not create a
reservation in Hawaii.
What this bill does do is allow the people of Hawaii to come together
and address issues arising from the overthrow of the Kingdom of Hawaii
more than 118 years ago.
[[Page S1979]]
It is time to move forward with this legislation. To date, there have
been a total of 12 Congressional hearings, including 5 joint hearings
in Hawaii held by the Senate Committee on Indian Affairs and the House
Natural Resources Committee. Our colleagues in the House have passed
versions of this bill three times. We, however, have never had the
opportunity to openly debate this bill on its merits in the Senate. We
have a strong bill that is supported by Native communities across the
United States, by the State of Hawaii, and by the Obama Administration.
Last week, I met with officials and community leaders in the state of
Hawaii to share my intention to reintroduce this legislation. I
received widespread support. This support was not surprising. A poll
conducted by the Honolulu Advertiser in May of last year reported that
66 percent of the people of Hawaii support Federal recognition for
Native Hawaiians. And 82 percent of Native Hawaiians polled support
Federal recognition.
My efforts have the support of the National Congress of American
Indians, the Alaska Federation of Natives, and groups throughout the
Native Hawaiian community including the Association of Hawaiian Civic
Clubs, the Native Hawaiian Bar Association, the Council for Native
Hawaiian Advancement, and two state agencies which represent the
interests of the Native Hawaiian people, the Office of Hawaiian Affairs
and the Department of Hawaiian Home Lands. I have also received support
from national organizations such as the American Bar Association, and
from President Obama, the Department of Justice, and the Department of
Interior.
I encourage all of my colleagues to stand with me and support this
legislation. I welcome any of my colleagues with concerns to speak with
me so I can explain how important this bill is for the people of
Hawaii. The people of Hawaii have waited for far too long. America has
a history of righting past wrongs. The United States has federally
recognized government-to-government relationships with 565 tribes
across our country. It is time to extend this policy to the Native
Hawaiians.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 675
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 2011''.
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 and the Supreme Court has held that under
the Indian Commerce, Treaty, Supremacy, and Property Clauses,
and the War Powers, Congress may exercise that power to
rationally promote the welfare of the native peoples of the
United States so long as the native people are a ``distinctly
native community'';
(2) Native Hawaiians, the native people of the Hawaiian
archipelago that is now part of the United States, are 1 of
the indigenous, native peoples of the United States, and the
Native Hawaiian people are a distinctly native community;
(3) the United States has a special political and legal
relationship with, and has long enacted legislation to
promote the welfare of, the native peoples of the United
States, including the Native Hawaiian people;
(4) under the authority of the Constitution, the United
States concluded a number of treaties with the Kingdom of
Hawaii, and from 1826 until 1893, the United States--
(A) recognized the sovereignty of the Kingdom of Hawaii as
a nation;
(B) accorded full diplomatic recognition to the Kingdom of
Hawaii; and
(C) 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;
(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 in trust to better
address the conditions of Native Hawaiians in the Federal
territory that later became the State of Hawaii and in
enacting the Hawaiian Homes Commission Act, 1920, Congress
acknowledged the Native Hawaiian people as a native people of
the United States, as evidenced by the Committee Report,
which notes that Congress relied on the Indian affairs power
and the War Powers, including the power to make peace;
(6) by setting aside 203,500 acres of land in trust for
Native Hawaiian homesteads and farms, the Hawaiian Homes
Commission Act, 1920, assists the members of the Native
Hawaiian community in maintaining distinctly native
communities throughout the State of Hawaii;
(7) approximately 9,800 Native Hawaiian families reside on
the Hawaiian Home Lands, and approximately 25,000 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 delegated
the authority and responsibility to administer the Hawaiian
Homes Commission Act, 1920, lands in trust for Native
Hawaiians and established a new public trust (commonly known
as the ``ceded lands trust''), for 5 purposes, 1 of which is
the betterment of the conditions of Native Hawaiians, and
Congress thereby reaffirmed its recognition of the Native
Hawaiians as a distinctly native community with a direct
lineal and historical succession to the aboriginal,
indigenous people of Hawaii;
(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
important native land reserves and resources for the Native
Hawaiian community to maintain the practice of Native
Hawaiian culture, language, and traditions, and for the
continuity, survival, and economic self-sufficiency of the
Native Hawaiian people as a distinctly native political
community;
(11) Native Hawaiians continue to maintain other distinctly
native areas in Hawaii, including native lands that date back
to the ali`i and kuleana lands reserved under the Kingdom of
Hawaii;
(12) through the Sovereign Council of Hawaiian Homelands
Assembly, Native Hawaiian civic associations, charitable
trusts established by the Native Hawaiian ali`i, nonprofit
native service providers and other community associations,
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;
(13) 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;
(14) 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;
(15)(A) the Apology Resolution expresses the commitment of
Congress and the President--
(i) to acknowledge the ramifications of the overthrow of
the Kingdom of Hawaii; and
(ii) to support reconciliation efforts between the United
States and Native Hawaiians;
(B) Congress established the Office of Hawaiian Relations
within the Department of the Interior with 1 of its purposes
being to consult with Native Hawaiians on the reconciliation
process; and
(C) the United States has the duty to reconcile and
reaffirm its friendship with the Native Hawaiian people
because, among other things, the United States Minister and
United States naval forces participated in the overthrow of
the Kingdom of Hawaii;
(16)(A) despite the overthrow of the Government of the
Kingdom of Hawaii, Native Hawaiians have continued to
maintain their separate identity as a single distinctly
native political 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; and
(B) there is clear continuity between the aboriginal,
indigenous, native people of the Kingdom of Hawaii and their
successors, the Native Hawaiian people today;
(17) 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 S1980]]
(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;
(18) Native Hawaiian people 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;
(19) 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;
(20) 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 unified Native Hawaiian governing
entity for the purpose of giving expression to their rights
as a native people to self-determination and self-governance;
(21) 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 an indigenous,
distinctly 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;
(22) 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;
(23) the United States has continually recognized and
reaffirmed that--
(A) Native Hawaiians have a direct genealogical, cultural,
historic, and land-based connection to their forebears, the
aboriginal, indigenous, native people who exercised original
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 native people of a
prior-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
(24) 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 a 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) Apology resolution.--The term ``Apology Resolution''
means Public Law 103-150 (107 Stat. 1510), a Joint Resolution
extending an apology to Native Hawaiians on behalf of the
United States for the participation of agents of the United
States in the January 17, 1893, overthrow of the Kingdom of
Hawaii.
(3) Commission.--The term ``Commission'' means the
Commission established under section 8(b).
(4) Council.--The term ``Council'' means the Native
Hawaiian Interim Governing Council established under section
8(c)(2).
(5) 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.
(6) 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).
(7) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the
aboriginal, indigenous, native people of the United States.
(8) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(9) Native hawaiian governing entity.--The term ``Native
Hawaiian governing entity'' means the governing entity
organized pursuant to this Act by the qualified Native
Hawaiian constituents.
(10) Native hawaiian membership organization.--The term
``Native Hawaiian Membership Organization'' means an
organization that--
(A) serves and represents the interests of Native
Hawaiians, has as a primary and stated purpose the provision
of services to Native Hawaiians, and has expertise in Native
Hawaiian affairs;
(B) has leaders who are elected democratically, or selected
through traditional Native leadership practices, by members
of the Native Hawaiian community;
(C) advances the cause of Native Hawaiians culturally,
socially, economically, or politically;
(D) is a membership organization or association; and
(E) has an accurate and reliable list of Native Hawaiian
members.
(11) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established by section
5(a).
(12) Qualified native hawaiian constituent.--For the
purposes of establishing the roll authorized under section 8,
and prior to the recognition by the United States of the
Native Hawaiian governing entity, the term ``qualified Native
Hawaiian constituent'' means an individual who the Commission
determines has satisfied the following criteria and who makes
a written statement certifying that he or she--
(A) is--
(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,
1920 (42 Stat. 108, chapter 42), or a direct lineal
descendant of that individual;
(B) wishes to participate in the reorganization of the
Native Hawaiian governing entity;
(C) is 18 years of age or older;
(D) is a citizen of the United States; and
(E) maintains a significant cultural, social, or civic
connection to the Native Hawaiian community, as evidenced by
satisfying 2 or more of the following 10 criteria:
(i) Resides in the State of Hawaii.
(ii) Resides outside the State of Hawaii and--
(I)(aa) currently serves or served as (or has a parent or
spouse who currently serves or served as) a member of the
Armed Forces or as an employee of the Federal Government; and
(bb) resided in the State of Hawaii prior to the time he or
she (or such parent or spouse) left the State of Hawaii to
serve as a member of the Armed Forces or as an employee of
the Federal Government; or
(II)(aa) currently is or was enrolled (or has a parent or
spouse who currently is or was enrolled) in an accredited
institution of higher education outside the State of Hawaii;
and
(bb) resided in the State of Hawaii prior to the time he or
she (or such parent or spouse) left the State of Hawaii to
attend such institution.
(iii)(I) Is or was eligible to be a beneficiary of the
programs authorized by the Hawaiian Homes Commission Act,
1920 (42 Stat. 108, chapter 42), and resides or resided on
land set aside as ``Hawaiian home lands'', as defined in such
Act; or
(II) Is a child or grandchild of an individual who is or
was eligible to be a beneficiary of the programs authorized
by such Act and who resides or resided on land set aside as
``Hawaiian home lands'', as defined in such Act.
(iv) Is or was eligible to be a beneficiary of the programs
authorized by the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42).
(v) Is a child or grandchild of an individual who is or was
eligible to be a beneficiary of the programs authorized by
the Hawaiian
[[Page S1981]]
Homes Commission Act, 1920 (42 Stat. 108, chapter 42).
(vi) Resides on or has an ownership interest in, or has a
parent or grandparent who resides on or has an ownership
interest in, ``kuleana land'' that is owned in whole or in
part by a person who, according to a genealogy verification
by the Office of Hawaiian Affairs or by court order, is a
lineal descendant of the person or persons who received the
original title to such ``kuleana land'', defined as lands
granted to native tenants pursuant to Haw. L. 1850, p. 202,
entitled ``An Act Confirming Certain Resolutions of the King
and Privy Council Passed on the 21st day of December, A.D.
1849, Granting to the Common People Allodial Titles for Their
Own Lands and House Lots, and Certain Other Privileges'', as
amended by Haw. L. 1851, p. 98, entitled ``An Act to Amend An
Act Granting to the Common People Allodial Titles for Their
Own Lands and House Lots, and Certain Other Privileges'' and
as further amended by any subsequent legislation.
(vii) Is, or is the child or grandchild of, an individual
who has been or was a student for at least 1 school year at a
school or program taught through the medium of the Hawaiian
language under section 302H-6, Hawaii Revised Statutes, or at
a school founded and operated primarily or exclusively for
the benefit of Native Hawaiians.
(viii) Has been a member since September 30, 2009, of at
least 1 Native Hawaiian Membership Organization.
(ix) Has been a member since September 30, 2009, of at
least 2 Native Hawaiian Membership Organizations.
(x) Is regarded as a Native Hawaiian and whose mother or
father is (or if deceased, was) regarded as Native Hawaiian
by the Native Hawaiian community, as evidenced by sworn
affidavits from two or more qualified Native Hawaiian
constituents certified by the Commission as possessing
expertise in the social, cultural, and civic affairs of the
Native Hawaiian community.
(13) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(14) 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)(A) Congress possesses and hereby exercises the
authority under the Constitution, including but not limited
to Article I, Section 8, Clause 3, to enact legislation to
better the conditions of Native Hawaiians and has exercised
this authority through the enactment of--
(i) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108,
chapter 42);
(ii) 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
(iii) more than 150 other Federal laws addressing the
conditions of Native Hawaiians;
(B) other sources of authority under the Constitution for
legislation on behalf of the indigenous, native peoples of
the United States, including Native Hawaiians, include but
are not limited to the Property, Treaty, and Supremacy
Clauses, War Powers, and the Fourteenth Amendment, and
Congress hereby relies on those powers in enacting this
legislation; and
(C) the Constitution's original Apportionment Clause and
the 14th Amendment Citizenship and amended Apportionment
Clauses also acknowledge the propriety of legislation on
behalf of the native peoples of the United States, including
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.
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 government-to-government
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) provide timely notice to, and consult with, the Native
Hawaiian governing entity before taking any actions that may
have the potential to significantly affect Native Hawaiian
resources, rights, or lands;
(4) work 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 Natural 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 may provide 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 whose actions may significantly or
uniquely impact Native Hawaiian programs, resources, rights,
or lands; and
(2) the Office.
(c) Lead Agency.--
(1) In general.--The Department of the Interior and the
White House Office of Intergovernmental Affairs shall serve
as the leaders 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 paragraph (1), but
the consultation obligation established in this provision
shall apply only after the satisfaction of all of the
conditions referred to in section 8(c)(8); 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. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE.
The Attorney General shall designate an appropriate
official within the Department of Justice to assist the
Office in the implementation and protection of the rights of
Native Hawaiians and their political and legal relationship
with the United States, and upon the recognition of the
Native Hawaiian governing entity as provided for in section
8, in the implementation and protection of the rights of the
Native Hawaiian governing entity and its political and legal
relationship with the United States.
SEC. 8. PROCESS FOR REORGANIZATION OF NATIVE HAWAIIAN
GOVERNING ENTITY AND REAFFIRMATION OF SPECIAL
POLITICAL AND LEGAL RELATIONSHIP BETWEEN UNITED
STATES AND NATIVE HAWAIIAN GOVERNING ENTITY.
(a) Recognition of Native Hawaiian Governing Entity.--The
right of the qualified Native Hawaiian constituents 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 qualified Native
Hawaiian constituents; and
(B) certifying that the individuals on the roll of
qualified Native Hawaiian constituents meet the definition of
qualified Native Hawaiian constituent set forth in section 3.
(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
[[Page S1982]]
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 Membership
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 (traditional
cultural experience shall be given due consideration); 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 qualified Native
Hawaiian constituents as set forth in subsection (c); and
(B) certify that the individuals on the roll of qualified
Native Hawaiian constituents meet the definition of that term
as set forth in section 3.
(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 Reorganization of Native Hawaiian Governing
Entity.--
(1) Roll.--
(A) Contents.--The roll shall include the names of the
qualified Native Hawaiian constituents who are certified by
the Commission to be qualified Native Hawaiian constituents,
as defined in section 3.
(B) Formation of roll.--Each individual claiming to be a
qualified Native Hawaiian constituent 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 set
forth in section 3; Provided, That an individual presenting
evidence that he or she satisfies the definition in section 2
of Public Law 103-150 shall be presumed to meet the
requirement of section 3(12)(A)(i).
(C) Documentation.--The Commission shall--
(i)(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
qualified Native Hawaiian constituent set forth in section 3;
(II) recognize an individual's identification of lineal
ancestors on the 1890 Census by the Kingdom of Hawaii as a
reliable indicia of lineal descent from the aboriginal,
indigenous, native people who resided in the islands that now
comprise the State of Hawaii on or before January 1, 1893;
and
(III) permit elderly Native Hawaiians and other Native
Hawaiians 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 2 or more qualified Native Hawaiian constituents;
(ii) establish a standard format for the submission of
documentation and a process to ensure veracity; and
(iii) publish information related to clauses (i) and (ii)
in the Federal Register.
(D) Consultation.--In making determinations that each
individual proposed for inclusion on the roll of qualified
Native Hawaiian constituents meets the definition of
qualified Native Hawaiian constituent in section 3, the
Commission may consult with Native Hawaiian Membership
Organizations, agencies of the State of Hawaii including but
not limited to the Department of Hawaiian Home Lands, the
Office of Hawaiian Affairs, and the State Department of
Health, and other entities with expertise and experience in
the determination of Native Hawaiian ancestry and lineal
descendancy.
(E) Notification.--The Commission shall--
(i) inform an individual whether they have been deemed by
the Commission a qualified Native Hawaiian constituent; and
(ii) inform an individual of a right to appeal the decision
if deemed not to be a qualified Native Hawaiian constituent.
(F) Certification and submittal of roll to secretary.--The
Commission shall--
(i) submit the roll containing the names of those
individuals who meet the definition of qualified Native
Hawaiian constituent in section 3 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 qualified
Native Hawaiian constituents proposed for inclusion on the
roll meets the definition set forth in section 3.
(G) Publication.--Upon certification by the Commission to
the Secretary that those listed on the roll meet the
definition of qualified Native Hawaiian constituent set forth
in section 3, the Commission shall publish the notice of the
certification of the roll in the Federal Register,
notwithstanding pending appeals pursuant to subparagraph (H).
(H) Appeal.--The Secretary, in consultation with the
Commission, shall establish a mechanism for an administrative
appeal for any person whose name is excluded from the roll
who claims to meet the definition of qualified Native
Hawaiian constituent in section 3.
(I) Publication; update.--The Commission shall--
(i) publish the notice of the certification of the roll
regardless of whether appeals are pending;
(ii) update the roll and provide notice of the updated roll
on the final disposition of any appeal;
(iii) update the roll to include any person who has been
certified by the Commission as meeting the definition of
qualified Native Hawaiian constituent in section 3 after the
initial publication of the roll or after any subsequent
publications of the roll; and
(iv) provide a copy of the roll and any updated rolls to
the Council.
(J) Effect of publication.--The publication of the initial
and updated roll shall serve as the basis for the eligibility
of qualified Native Hawaiian constituents whose names are
listed on those rolls to participate in the reorganization of
the Native Hawaiian governing entity.
(2) Organization of council.--
(A) Organization.--The Commission, in consultation with the
Secretary, shall hold a minimum of 3 meetings and each
meeting shall be at least 2 working days of the qualified
Native Hawaiian constituents listed on the roll established
under this section--
(i) to develop criteria for candidates to be elected to
serve on the Council;
(ii) to determine the structure of the Council, including
the number of Council members; and
(iii) to elect members from individuals listed on the roll
established under this subsection to the Council.
(B) Powers.--
(i) In general.--The Council--
(I) shall represent those listed on the roll established
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 shall conduct, among the
qualified Native Hawaiian constituents listed on the roll
established under this subsection, a referendum 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 future membership in 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 shall develop proposed organic
governing documents for the Native Hawaiian governing entity
and may seek technical assistance from the Secretary on the
draft organic governing documents to ensure that the draft
organic governing documents comply with this Act and other
Federal law.
[[Page S1983]]
(III) Distribution.--The Council shall publish to all
qualified Native Hawaiian constituents of the Native Hawaiian
governing entity listed on the roll published under this
subsection notice of the availability of--
(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.--
(aa) In general.--Not sooner than 180 days after the
proposed organic governing documents are drafted and
distributed, the Council, with the assistance of the
Secretary, shall hold elections for the purpose of ratifying
the proposed organic governing documents.
(bb) Purpose.--The Council, with the assistance of the
Secretary, shall hold the election for the purpose of
ratifying the proposed organic governing documents 60 days
after publishing notice of an election.
(cc) Officers.--On certification of the organic governing
documents by the Secretary in accordance with paragraph (4),
the Council, with the assistance of the Secretary, shall 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
9(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 180 days,
which may be extended an additional 90 days if the Secretary
deems necessary, after the date on which the Council submits
the organic governing documents to the Secretary, the
Secretary shall certify or decline to certify that the
organic governing documents--
(i) establish the criteria for membership in the Native
Hawaiian governing entity;
(ii) were adopted by a majority vote of those qualified
Native Hawaiian constituents whose names are listed on the
roll published by the Secretary and who voted in the
election;
(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 inherent and other
appropriate governmental authorities by the Native Hawaiian
governing entity;
(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.
(B) Resubmission in case of noncompliance.--
(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
this paragraph shall be deemed to have been made if the
Secretary has not acted within 180 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, with the
assistance of the Secretary, shall hold elections of the
officers of the Native Hawaiian governing entity.
(6) Provision of roll.--The Council shall provide a copy of
the roll of qualified Native Hawaiian constituents to the
governing body of the Native Hawaiian governing entity.
(7) Termination.--The Council shall cease to exist and
shall have no power or authority under this Act after the
officers of the governing body who are elected as provided in
paragraph (5) are installed.
(8) Reaffirmation.--Notwithstanding any other provision of
law, the special political and legal relationship between the
United States and the Native Hawaiian people is hereby
reaffirmed and the United States extends Federal recognition
to the Native Hawaiian governing entity as the representative
sovereign governing body of the Native Hawaiian people
after--
(A) the approval of the organic governing documents by the
Secretary under subparagraph (A) or (C) of paragraph (4); and
(B) the officers of the Native Hawaiian governing entity
elected under paragraph (5) have been installed.
SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY TO
STATE OF HAWAII; 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 or agreements addressing such matters as--
(A) the transfer of State of Hawaii lands and surplus
Federal 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 exercise of other powers and authorities that are
recognized by the United States as powers and authorities
typically exercised by governments representing indigenous,
native people of the United States;
(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 or the
State of Hawaii, and the Native Hawaiian governing entity,
the parties may 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 Natural Resources of the House of
Representatives recommendations for proposed amendments to
Federal law that will enable the implementation of agreements
reached between the 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 governments.
(3) Governmental authority and power.--The Native Hawaiian
governing entity shall be vested with the inherent powers and
privileges of self-government of a native government under
existing law, except as set forth in section 10(a). Said
powers and privileges may be modified by agreement between
the Native Hawaiian governing entity, the United States, and
the State pursuant to paragraph (1), subject to the limit
described by section 10(a). Unless so agreed, nothing in this
Act shall preempt Federal or State authority over Native
Hawaiians or their property under existing law or authorize
the State to tax or regulate the Native Hawaiian governing
entity.
(4) Membership.--Once the United States extends Federal
recognition to the Native Hawaiian governing entity, the
United States will recognize and affirm the Native Hawaiian
governing entity's inherent power and authority 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.
(c) Claims.--Nothing in this Act--
(1) alters existing law, including case law, regarding
obligations of the United States or the State of Hawaii
relating to events or actions that occurred prior to
recognition of the Native Hawaiian governing entity;
(2) creates, enlarges, revives, modifies, diminishes,
extinguishes, waives, or otherwise alters any claim or cause
of action against the United States or its officers or the
State of Hawaii or its officers, or any defense (including
the defense of statute of limitations) to any such claim or
cause of action; or
(3) amends section 2409a of title 28, United States Code
(commonly known as the ``Quiet Title Act''), chapter 171 of
title 28, United States Code (commonly known as the ``Federal
Tort Claims Act''), section 1491 of title 28, United States
Code (commonly known as the ``Tucker Act''), section 1505 of
title 28, United States Code (commonly known as the ``Indian
Tucker Act''), the Hawaii Organic Act (31 Stat. 141), or any
other Federal statute, except as expressly amended by this
Act.
SEC. 10. APPLICABILITY OF CERTAIN FEDERAL LAWS.
(a) Indian Gaming Regulatory Act.--
(1) In general.--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.
[[Page S1984]]
(2) Applicability.--The prohibition contained in paragraph
(1) regarding the use of Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) and inherent authority to game applies
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) 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, Code of Federal
Regulations, or any other administrative acknowledgment or
recognition process.
(c) Indian Civil Rights Act of 1968.--The Council and the
subsequent governing entity recognized under this Act shall
be an Indian tribe, as defined in section 201 of the Indian
Civil Rights Act of 1968 (25 U.S.C. 1301) for purposes of
sections 201 through 203 of that Act (25 U.S.C. 1301-1303).
(d) Indian Programs, Services, and Laws.--
(1) In general.--Notwithstanding any other provision of
this Act, nothing in this Act extends eligibility for any
Indian program or service to the Native Hawaiian governing
entity or its members unless a statute governing such a
program or service expressly provides that Native Hawaiians
or the Native Hawaiian governing entity is eligible for such
program or service. Nothing in this Act affects the
eligibility of any person for any program or service under
any statute or law in effect before the date of enactment of
this Act.
(2) Applicability of other terms.--In Federal statutes or
regulations in force prior to the United States' recognition
of the Native Hawaiian governing entity, the terms ``Indian''
and ``Native American'', and references to Indian tribes,
bands, nations, pueblos, villages, or other organized groups
or communities, shall not apply to the Native Hawaiian
governing entity or its members, unless the Federal statute
or regulation expressly applies to Native Hawaiians or the
Native Hawaiian governing entity.
(e) Real Property Transfers.--Section 2116 of the Revised
Statutes (commonly known as the ``Indian Trade and
Intercourse Act'') (25 U.S.C. 177) does not apply to any
purchase, grant, lease, or other conveyance of lands, or of
any title or claim thereto, from Native Hawaiians, Native
Hawaiian entities, or the Kingdom of Hawaii that occurred
prior to the date of the United States' recognition of the
Native Hawaiian governing entity.
SEC. 11. 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. 12. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this Act.
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