[Congressional Record (Bound Edition), Volume 155 (2009), Part 2]
[Senate]
[Pages 2831-2838]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. REED (for himself, Mr. Dodd, Mr. Kerry, Mr. Schumer, Ms. 
        Stabenow, and Mr. Kennedy):
  S. 376. A bill to provide rules for the modification or disposition 
of certain assets by real estate mortgage investment conduits pursuant 
to division A of the Emergency Economic Stabilization Act of 2008, and 
for other purposes; to the Committee on Banking, Housing, and Urban 
Affairs.
  Mr. REED. Mr. President, today I introduce, along with Senators Dodd, 
Kerry, Schumer, and Stabenow, the Real Estate Mortgage Investment 
Conduit, REMIC, Improvement Act. This legislation could provide one of 
the keys to solving our national foreclosure crisis by unlocking 
mortgage securitization trusts so that more homeowners can stay in 
their homes.
  In my own state of Rhode Island, 7.30 percent of all outstanding home 
loans are delinquent and 5.33 percent of all home loans are in the 
foreclosure process. This is the 10th highest foreclosure rate in the 
Nation, and the highest in New England. I have heard story after story 
of how difficult it is to get a loan modified or restructured if it is 
part of a mortgage securitization pool. As we have learned, part of the 
reason we are in the worst housing crisis since the Depression is that 
Wall Street firms packaged mortgages into pools and then sold different 
tranches of these pools to investors from all over the world. This 
diverse and convoluted ownership structure has made it difficult to get 
investor approval to modify or restructure them. Unlike in the movie 
``It's a Wonderful Life,'' most families can no longer walk into their 
local bank to talk to George Bailey about modifying or restructuring 
their loan.
  The Emergency Economic Stabilization Act of 2008 required the 
Treasury Department to use its new authorities to incentivize servicers 
toward more loan restructurings. However, it has become clear that 
additional legislation is needed to free servicers of these loan pools 
from conflicting requirements regarding modifications and provide them 
with the ability to sell mortgages to Treasury for foreclosure 
avoidance.
  Many servicers, managing pools of loans for investors, are 
constrained by the trust agreements from modifying loans to a level 
that families can afford to pay or from selling the underlying mortgage 
loans. In other cases, servicers must obtain the approval of a 
significant number of the trust's beneficiaries or third parties in 
order to make changes to how loans within the pool are handled. 
However, the trust agreements also provide that servicers must amend 
the agreements if doing so would be helpful or necessary to stay in 
compliance with tax rules under the REMIC statute; REMIC status frees 
these securitization trusts from taxation at the entity level and 
therefore provides important benefits to its investors.
  Under the REMIC Improvement Act, in order to keep their preferred tax 
status under the REMIC provisions of the Internal Revenue Code, 
servicers would need to modify their trust agreements to remove 
artificial restrictions that keep them from modifying loans that 
provide a greater return to investors as a whole than foreclosing 
would, and keep families in their homes to prevent entirely unnecessary 
foreclosures at the same time. This is a practical way for servicers to 
modify loans without undue fear of legal sanctions. This also would 
allow servicers to sell loans to Treasury for restructuring without 
having to obtain an affirmative response by a significant number of the 
beneficiaries of the trust if it was for the good of the overall trust. 
Participation in any Treasury program would be voluntary, but some of 
the key legal impediments to participation would be removed.
  Additionally, the Treasury Department has not put in place a loan 
modification program, even after Congress gave it the authority to do 
so in the Emergency Economic Stabilization Act. Many experts believe 
such a program would be helpful in helping resolve the current housing 
crisis. The REMIC Improvement Act will ensure that Treasury uses its 
authority to set up a program to achieve broad-scale modifications and, 
where necessary, dispositions of foreclosed property.
  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:

[[Page 2832]]



                                 S. 376

       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 ``Real Estate Mortgage 
     Investment Conduit Improvement Act of 2009''.

     SEC. 2. SPECIAL RULES FOR MODIFICATION OR DISPOSITION OF 
                   QUALIFIED MORTGAGES OR FORECLOSURE PROPERTY BY 
                   REAL ESTATE MORTGAGE INVESTMENT CONDUITS.

       (a) In General.--If a REMIC (as defined in section 860D(a) 
     of the Internal Revenue Code of 1986) modifies or disposes of 
     a troubled asset under the Troubled Asset Relief Program 
     established by the Secretary of the Treasury under section 
     101(a) of the Emergency Economic Stabilization Act of 2008 or 
     under rules established by the Secretary under section 3 of 
     this Act--
       (1) such modification or disposition shall not be treated 
     as a prohibited transaction under section 860F(a)(2) of such 
     Code, and
       (2) for purposes of part IV of subchapter M of chapter 1 of 
     such Code--
       (A) an interest in the REMIC shall not fail to be treated 
     as a regular interest (as defined in section 860G(a)(1) of 
     such Code) solely because of such modification or 
     disposition, and
       (B) any proceeds resulting from such modification or 
     disposition shall be treated as amounts received under 
     qualified mortgages.
       (b) Termination of REMIC.--For purposes of the Internal 
     Revenue Code of 1986, an entity which is a REMIC (as defined 
     in section 860D(a) of the Internal Revenue Code of 1986) 
     shall cease to be a REMIC if the instruments governing the 
     conduct of servicers or trustees with respect to qualified 
     mortgages (as defined in section 860G(a)(3) of such Code) or 
     foreclosure property (as defined in section 860G(a)(8) of 
     such Code)--
       (1) prohibit or restrict (including restrictions on the 
     type, number, percentage, or frequency of modifications or 
     dispositions) such servicers or trustees from reasonably 
     modifying or disposing of such qualified mortgages or such 
     foreclosure property in order to participate in the Troubled 
     Asset Relief Program established by the Secretary of the 
     Treasury under section 101(a) of the Emergency Economic 
     Stabilization Act of 2008 or under rules established by the 
     Secretary under section 3 of this Act,
       (2) commit to a person other than the servicer or trustee 
     the authority to prevent the reasonable modification or 
     disposition of any such qualified mortgage or foreclosure 
     property,
       (3) require a servicer or trustee to purchase qualified 
     mortgages which are in default or as to which default is 
     reasonably foreseeable for the purposes of reasonably 
     modifying such mortgages or as a consequence of such 
     reasonable modification, or
       (4) fail to provide that any duty a servicer or trustee 
     owes when modifying or disposing of qualified mortgages or 
     foreclosure property shall be to the trust in the aggregate 
     and not to any individual or class of investors.
       (c) Effective Dates.--
       (1) Subsection (a).--Subsection (a) shall apply to 
     modification and dispositions after the date of the enactment 
     of this Act, in taxable years ending on or after such date.
       (2) Subsection (b).--
       (A) In general.--Except as provided in subparagraph (B), 
     subsection (b) shall take effect on the date that is 3 months 
     after the date of the enactment of this Act.
       (B) Exception.--The Secretary of the Treasury may waive the 
     application of subsection (b) in whole or in part for any 
     period of time with respect to any entity if--
       (i) the Secretary determines that such entity is unable to 
     comply with the requirements of such subsection in a timely 
     manner, or
       (ii) the Secretary determines that such waiver would 
     further the purposes of this Act.

     SEC. 3. ESTABLISHMENT OF A HOME MORTGAGE LOAN RELIEF PROGRAM 
                   UNDER THE TROUBLED ASSET RELIEF PROGRAM AND 
                   RELATED AUTHORITIES.

       (a) Establishment.--Not later than 30 days after the date 
     of enactment of this Act, the Secretary of the Treasury shall 
     establish and implement a program under the Troubled Asset 
     Relief Program and related authorities established under 
     section 101(a) of the Emergency Economic Stabilization Act of 
     2008 (12 U.S.C. 5211(a))--
       (1) to achieve appropriate broad-scale modifications or 
     dispositions of troubled home mortgage loans; and
       (2) to achieve appropriate broad-scale dispositions of 
     foreclosure property.
       (b) Rules.--The Secretary of the Treasury shall promulgate 
     rules governing the--
       (1) reasonable modification of any home mortgage loan 
     pursuant to the requirements of this Act; and
       (2) disposition of any such home mortgage loan or 
     foreclosed property pursuant to the requirements of this Act.
       (c) Considerations.--In developing the rules required under 
     subsection (b), the Secretary of the Treasury shall take into 
     consideration--
       (1) the debt-to-income ratio, loan-to-value ratio, or 
     payment history of the mortgagors of such home mortgage 
     loans; and
       (2) any other factors consistent with the intent to 
     streamline modifications of troubled home mortgage loans into 
     sustainable home mortgage loans.
       (d) Use of Broad Authority.--The Secretary of the Treasury 
     shall use all available authorities to implement the home 
     mortgage loan relief program established under this section, 
     including, as appropriate--
       (1) home mortgage loan purchases;
       (2) home mortgage loan guarantees;
       (3) making and funding commitments to purchase home 
     mortgage loans or mortgage-backed securities;
       (4) buying down interest rates and principal on home 
     mortgage loans;
       (5) principal forbearance; and
       (6) developing standard home mortgage loan modification and 
     disposition protocols, which shall include ratifying that 
     servicer action taken in anticipation of any necessary 
     changes to the instruments governing the conduct of servicers 
     or trustees with respect to qualified mortgages or 
     foreclosure property are consistent with the Secretary of the 
     Treasury's standard home mortgage loan modification and 
     disposition protocols.
       (e) Payments Authorized.--The Secretary of the Treasury is 
     authorized to pay servicers for home mortgage loan 
     modifications or other dispositions consistent with any rules 
     established under subsection (b).
       (f) Rule of Construction.--Any standard home mortgage loan 
     modification and disposition protocols developed by the 
     Secretary of the Treasury under this section shall be 
     construed to constitute standard industry practice.
                                 ______
                                 
      By Mr. LEAHY (for himself, Mr. Hatch, Mrs. Feinstein, Mr. Corker, 
        and Mrs. Boxer):
  S. 379. A bill to provide fair compensation to artists for use of 
their sound recordings; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today, Senator Hatch and I renew our 
bipartisan effort to improve and modernize our intellectual property 
laws. We are reintroducing the Performance Rights Act to ensure artists 
are compensated fairly when their works are used. I am pleased that 
performance rights legislation will be introduced in the House today, 
as well.
  When radio stations broadcast music, listeners are enjoying the 
intellectual property of two creative artists--the songwriter and the 
performer. The success, and the artistic quality, of any recorded song 
depends on both. Radio stations pay songwriters for a license to 
broadcast the music they have composed. The songwriters' work is 
promoted by the air play, but no one seriously questions that the 
songwriter should be paid for the use of his or her work. The 
performing artist, however, is not paid by the radio station.
  The time has come to end this inequity. Its historical justification 
has been overtaken by technological change. In the digital world, we 
enjoy music transmitted over a variety of platforms. When webcasters, 
satellite radio companies, or cable companies play music, and profit 
from its use, they compensate the performing artists. Terrestrial 
broadcast radio is the only platform that still does not pay for the 
use of sound recordings.
  Radio play surely has promotional value to the artists, but there is 
a property right in the sound recording, and those that create the 
content should be compensated for their work. The United States is 
behind the times in this regard. Ours is the only Nation that is a 
member of the Organization for Economic Cooperation and Development but 
still does not compensate artists. An unfortunate result of the lack of 
a performance rights in the United States is that American artists are 
not compensated when their recordings are played abroad.
  Artists should have the same rights regardless of the platform over 
which their work is used. All platforms promote artists and all 
platforms profit off the artists' work. Today, different rate standards 
and restrictions are applied to different music delivery platforms, 
with broadcast radio stations being uniquely and completely exempt. In 
the last Congress, Senator Feinstein chaired a hearing in the Judiciary 
Committee that addressed whether the time has come to achieve platform 
parity by harmonizing the terms and conditions for use of the statutory 
copyright license. Senator Feinstein has been a leader on this issue, 
and I am pleased to accept her offer to lead negotiations this year to 
develop a new standard that can be applied across platforms.

[[Page 2833]]

  We also need to make certain that songwriters are protected in this 
process. Songwriters currently do receive compensation from radio 
stations. The changes made by this legislation, which will ensure 
performing artists are compensated, should not have any negative effect 
on songwriters. I will work closely with the songwriters and we will 
make sure that is the case.
  In introducing the Performance Rights Act today, we are sensitive to 
the needs of broadcast radio stations; we are sensitive to the 
regulatory regime under which they operate; and we are particularly 
sensitive to the fact that it is not just artists, but also 
broadcasters that are facing a difficult economic climate. Rather than 
require all radio stations to pay fair market value to artists for the 
songs they play, the legislation includes special provisions for 
noncommercial and all but the largest commercial stations. In addition, 
every radio station can use a statutory copyright license to transmit 
sound recordings, instead of negotiating licenses separately in the 
marketplace.
  Noncommercial stations have a different mission than do commercial 
stations and they require a different status. Our legislation, 
appropriately, permits noncommercial stations to take advantage of the 
statutory copyright license subject only to a nominal annual payment to 
the artists.
  Similarly, we intend to nurture, not threaten, small commercial 
broadcasters. Smaller music stations are working hard to serve their 
local communities while finding the right formula to increase their 
audience size. We intend to foster the growth of these stations--nearly 
85 percent of the radio stations in Vermont--and the legislation does 
that by also providing a flat fee option for use of the statutory 
license to the more than 75 percent of commercial music stations 
earning less than $1.25 million a year. This payment may only provide 
minimal compensation to the artists whose music is used by the vast 
majority of commercial music stations, particularly when viewed against 
the fair market value of the music, but by helping radio stations grow, 
artists, the stations, and the public will all benefit.
  I am an avid music fan and much of the music I enjoy I first heard on 
the radio. There is no question that radio play promotes artists and 
their sound recordings; there is also no doubt that radio stations 
profit directly from playing the artists' recordings.
  Traditional, over-the-air radio remains vital to the vibrancy of our 
music culture, and I want to continue to see it prosper as it 
transitions to digital. But I also want to ensure that the performing 
artist, the one whose sound recordings drive the success of broadcast 
radio, is compensated fairly. I will continue to work with the 
broadcasters--large and small, commercial and noncommercial--to strike 
the right balance.
  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 bil was ordered to be 
printed in the Record, as follows:

                                 S. 379

       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 ``Performance Rights Act''.

     SEC. 2. EQUITABLE TREATMENT FOR TERRESTRIAL BROADCASTS.

       (a) Performance Right Applicable to Radio Transmissions 
     Generally.--Section 106(6) of title 17, United States Code, 
     is amended to read as follows:
       ``(6) in the case of sound recordings, to perform the 
     copyrighted work publicly by means of an audio 
     transmission.''.
       (b) Inclusion of Terrestrial Broadcasts in Existing 
     Performance Right.--Section 114(d)(1) of title 17, United 
     States Code, is amended--
       (1) in the matter preceding subparagraph (A), by striking 
     ``a digital'' and inserting ``an''; and
       (2) by striking subparagraph (A).
       (c) Inclusion of Terrestrial Broadcasts in Existing 
     Statutory License System.--Section 114(j)(6) of title 17, 
     United States Code, is amended by striking ``digital''.
       (d) Eliminating Regulatory Burdens for Terrestrial 
     Broadcast Stations.--Section 114(d)(2) of title 17, United 
     States Code, is amended in the matter preceding subparagraph 
     (A) by striking ``subsection (f) if'' and inserting 
     ``subsection (f) if, other than for a nonsubscription and 
     noninteractive broadcast transmission,''.

     SEC. 3. SPECIAL TREATMENT FOR SMALL, NONCOMMERCIAL, 
                   EDUCATIONAL, AND RELIGIOUS STATIONS AND CERTAIN 
                   USES.

       (a) Small, Noncommercial, Educational, and Religious Radio 
     Stations.--
       (1) In general.--Section 114(f)(2) of title 17, United 
     States Code, is amended by adding at the end the following:
       ``(D) Notwithstanding the provisions of subparagraphs (A) 
     through (C), each individual terrestrial broadcast station 
     that has gross revenues in any calendar year of less than 
     $1,250,000 may elect to pay for its over-the-air 
     nonsubscription broadcast transmissions a royalty fee of 
     $5,000 per year, in lieu of the amount such station would 
     otherwise be required to pay under this paragraph. Such 
     royalty fee shall not be taken into account in determining 
     royalty rates in a proceeding under chapter 8, or in any 
     other administrative, judicial, or other Federal Government 
     proceeding.
       ``(E) Notwithstanding the provisions of subparagraphs (A) 
     through (C), each individual terrestrial broadcast station 
     that is a public broadcasting entity as defined in section 
     118(f) may elect to pay for its over-the-air nonsubscription 
     broadcast transmissions a royalty fee of $1,000 per year, in 
     lieu of the amount such station would otherwise be required 
     to pay under this paragraph. Such royalty fee shall not be 
     taken into account in determining royalty rates in a 
     proceeding under chapter 8, or in any other administrative, 
     judicial, or other Federal Government proceeding.''.
       (2) Payment date.--A payment under subparagraph (D) or (E) 
     of section 114(f)(2) of title 17, United States Code, as 
     added by paragraph (1), shall not be due until the due date 
     of the first royalty payments for nonsubscription broadcast 
     transmissions that are determined, after the date of the 
     enactment of this Act, under such section 114(f)(2) by reason 
     of the amendment made by section 2(b)(2) of this Act.
       (b) Transmission of Religious Services; Incidental Uses of 
     Music.--Section 114(d)(1) of title 17, United States Code, as 
     amended by section 2(b), is further amended by inserting the 
     following before subparagraph (B):
       ``(A) an eligible nonsubscription transmission of--
       ``(i) services at a place of worship or other religious 
     assembly; and
       ``(ii) an incidental use of a musical sound recording;''.

     SEC. 4. AVAILABILITY OF PER PROGRAM LICENSE.

       Section 114(f)(2)(B) of title 17, United States Code, is 
     amended by inserting after the second sentence the following 
     new sentence: ``Such rates and terms shall include a per 
     program license option for terrestrial broadcast stations 
     that make limited feature uses of sound recordings.''.

     SEC. 5. NO HARMFUL EFFECTS ON SONGWRITERS.

       (a) Preservation of Royalties on Underlying Works.--Section 
     114(i) of title 17, United States Code, is amended in the 
     second sentence by striking ``It is the intent of Congress 
     that royalties'' and inserting ``Royalties''.
       (b) Public Performance Rights and Royalties.--Nothing in 
     this Act shall adversely affect in any respect the public 
     performance rights of or royalties payable to songwriters or 
     copyright owners of musical works.

  Mr. HATCH. Mr. President, I rise today to express my support for the 
Performance Rights Act, S. 379, introduced today by Senate Judiciary 
Committee chairman, Patrick Leahy, and myself. It is time to amend 
copyright law to establish performance rights on sound recordings. I 
believe that artists should be compensated for their work. This is an 
issue of fairness and equity.
  I agree with the position of the Department of Commerce Working Group 
on Intellectual Property Rights: the lack of a performance right in 
sound recordings is ``an historical anomaly that does not have a strong 
policy justification--and certainly not a legal one.''
  This legislation would ensure that musical performers and songwriters 
receive fair compensation from all companies across the broadcast 
spectrum, not just from Web casters, satellite radio providers, and 
cable companies. The proposed legislation attempts to strike a 
harmonious balance between fair compensation for artists and a vibrant 
radio industry in the U.S.
  By amending sections 106 and 114 of the Copyright Act, the 
Performance Rights Act would apply the performance right in a sound 
recording to all audio transmissions thereby removing the exemption on 
paying performance royalties currently in place for over-the-air 
broadcasters.
  The legislation also provides for a blanket license of $5,000 for 
small commercial broadcasters whose gross revenues do not exceed $1.25 
million a year.

[[Page 2834]]

In addition, noncommercial broadcasters as defined by section 118 of 
the Copyright Act, such as public, educational and religious stations, 
would have a blanket license of $1,000 per year. No payment would be 
due until the Copyright Royalty Board determines the rates for large 
commercial broadcasters. The proposed language provides that sound 
recordings used only incidentally by a broadcaster and sound recordings 
used in the transmission of a religious service are exempt.
  Finally, the legislation strengthens the provision in section 114 
that preserves the rights of songwriters and clarifies that nothing in 
the Performance Rights Act shall adversely affect the public 
performance rights of songwriters or copyright owners of musical works.
  Let me repeat, this provision is to ensure that songwriters are not 
adversely affected by enactment of this bill. I understand the concerns 
of the songwriting community and the difficultly some have in recouping 
royalties on infringed works. We must ensure that our songwriters are 
not placed in situations where their property rights are ignored by 
infringers. Chairman Leahy agrees that additional work to address the 
issue of willful infringement is necessary before enactment, and I look 
forward to working with him.
  I want the broadcasting community to know that I am committed to 
working with them throughout the legislative process. I continue to 
have an open-door policy and welcome a productive dialogue on this 
issue. There is no question that radio play promotes artists and their 
sound recordings. There is also no question that radio stations profit 
directly from playing the artists' recordings. Indeed, we must strike a 
fair balance, one that fosters a vibrant broadcast radio community and 
compensates artists for their work.
                                 ______
                                 
      By Mr. AKAKA (for himself, Mr. Inouye, and Ms. Murkowski):
  S. 381. A bill to express the policy of the United States regarding 
the United States relationship with Native Hawaiians, to provide a 
process for the reorganization of a Native Hawaiian government and the 
recognition by the United States of the Native Hawaiian government, and 
for other purposes; to the Committee on Indian Affairs.
  Mr. AKAKA. Mr. President. Today I introduce the Native Hawaiian 
Government Reorganization Act of 2009. While this legislation is 
especially significant to Native Hawaiians, I introduce this measure 
for all the people of Hawaii. This bill authorizes a process to extend 
federal recognition to Hawaii's indigenous people for the purposes of a 
government-to-government relationship with the United States. This 
benefits all the people of Hawaii, as they will now have a structured, 
formal process to come together to address many unresolved issues 
confronting our state and our residents.
  Unlike our Nation's other indigenous people, the Federal policy of 
self-governance and self-determination has not been extended to Native 
Hawaiians. The bill addresses this need and establishes parity. It 
provides Native Hawaiians a formal opportunity to participate in making 
policy decisions and empowers them to interact at the State and Federal 
levels through a government-to-government relationship. The legislation 
is consistent with federal and state law and allows Native Hawaiians to 
be treated the same way as our country's other indigenous people.
  The United States has recognized and upheld a responsibility for the 
wellbeing of indigenous, native people, including Native Hawaiians. 
Congress has enacted more than 160 statutes to address the needs of 
Native Hawaiians. In 1993, I sponsored a measure commonly known as the 
Apology Resolution that was enacted into law. The Resolution outlined 
the history prior to and following the overthrow of the Kingdom of 
Hawaii, including involvement in the overthrow by agents of the United 
States. Further, in the Resolution the United States apologized for its 
involvement in the overthrow and committed itself to acknowledge the 
ramifications of the overthrow and support reconciliation efforts 
between the United States and the Native Hawaiian people. This was a 
historic declaration that has initiated a healing process. However, 
additional Congressional action is needed to continue this process.
  The 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, as well as composed of officials from federal agencies 
who currently 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, the bill establishes an inclusive democratic 
negotiations process representing both Native Hawaiians and non-Native 
Hawaiians. There are many checks and balances in this process and any 
agreements reached will require implementing legislation at the State 
and Federal levels.
  This legislation is needed to address issues present in my home 
state. It is a reality that there are longstanding and unresolved 
issues resulting from the overthrow. Despite good faith efforts to 
address these issues, the lack of a government-to-government 
relationship has limited progress. Building on the constitutionally 
sound and deliberate efforts of Congress and the State of Hawaii, it is 
necessary that Native Hawaiians be able to reorganize a government and 
enter into discussions with the Federal and State governments. My bill 
would ensure there is a structured process by which Native Hawaiians 
and the people of Hawaii can come together, resolve such complicated 
issues, and move forward together as a State.
  The legislation I introduce today is identical to language passed by 
the House of Representatives in the 106th Congress. This bill is the 
product of five working groups the Hawaii Congressional Delegation 
created to assist with the drafting of this legislation. The working 
groups were composed of individuals from the Native Hawaiian community, 
elected officials from the State of Hawaii, representatives from 
federal agencies, Members of Congress, as well as leaders from Indian 
Country and experts in constitutional law. This ensured that all 
parties that had expertise and would work to implement the legislation 
had an opportunity to collectively and collaboratively participate in 
the drafting process.
  The Hawaii Congressional delegation has carefully considered the 
significant public input and Congressional oversight on this bill over 
the last 9 years. To date, there have been a total of 9 Congressional 
hearings, including 6 joint hearings held by the Senate Indian Affairs 
Committee and House Natural Resources Committee, 5 of which were held 
in Hawaii. From the beginning, the National Congress of American 
Indians and Alaska Federation of Natives have joined Native Hawaiians 
in their pursuit for federal recognition. In the 110th Congress, the 
Senate Committee on Indian Affairs explored the legal aspects of the 
bill where Hawaii's State Attorney General expressed his support and 
spoke to the constitutionality of this measure. In addition to the 
bipartisan support at the Federal and State level for the bill, 
national organizations such as the American Bar Association, Japanese 
American Citizens League, and National Indian Education Association 
have also urged Congress to pass legislation establishing a process to 
provide federal recognition to Native Hawaiians.
  It is clear this legislation is constitutional and provides a 
framework respectful of the needs of Native Hawaiians and non-Native 
Hawaiians. Their combined efforts will be needed as each will play an 
active role in reaching agreements and enacting implementing 
legislation at the state and federal levels. I ask my colleagues to 
join Senator Inouye and I, in enacting this legislation.

[[Page 2835]]

  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. 381

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

     SECTION 1. FINDINGS.

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

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Aboriginal, indigenous, native people.--The term 
     ``aboriginal, indigenous, native people'' means those people 
     whom Congress has recognized as the original inhabitants of 
     the lands and who exercised sovereignty prior to European 
     contact in the areas that later became part of the United 
     States.
       (2) Adult members.--The term ``adult members'' means those 
     Native Hawaiians who have attained the age of 18 at the time 
     the Secretary publishes the final roll, as provided in 
     section 7(a)(3) of this Act.
       (3) Apology resolution.--The term ``Apology Resolution'' 
     means Public Law 103-150 (107 Stat. 1510), a joint resolution 
     offering 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) Ceded lands.--The term ``ceded lands'' means those 
     lands which were ceded to the United States by the Republic 
     of Hawaii under the Joint Resolution to provide for annexing 
     the Hawaiian Islands to the United States of July 7, 1898 (30 
     Stat. 750), and which were later transferred to the State of 
     Hawaii in the Act entitled ``An Act to provide for the 
     admission of the State of Hawaii into the Union'' approved 
     March 18, 1959 (Public Law 86-3; 73 Stat. 4).

[[Page 2836]]

       (5) Commission.--The term ``Commission'' means the 
     commission established in section 7 of this Act to certify 
     that the adult members of the Native Hawaiian community 
     contained on the roll developed under that section meet the 
     definition of Native Hawaiian, as defined in paragraph 
     (7)(A).
       (6) Indigenous, native people.--The term ``indigenous, 
     native people'' means the lineal descendants of the 
     aboriginal, indigenous, native people of the United States.
       (7) Native hawaiian.--
       (A) Prior to the recognition by the United States of a 
     Native Hawaiian government under the authority of section 
     7(d)(2) of this Act, the term ``Native Hawaiian'' means the 
     indigenous, native people of Hawaii who are the lineal 
     descendants of the aboriginal, indigenous, native people who 
     resided in the islands that now comprise the State of Hawaii 
     on or before January 1, 1893, and who occupied and exercised 
     sovereignty in the Hawaiian archipelago, including the area 
     that now constitutes the State of Hawaii, and includes all 
     Native Hawaiians who were eligible in 1921 for the programs 
     authorized by the Hawaiian Homes Commission Act (42 Stat. 
     108, chapter 42) and their lineal descendants.
       (B) Following the recognition by the United States of the 
     Native Hawaiian government under section 7(d)(2) of this Act, 
     the term ``Native Hawaiian'' shall have the meaning given to 
     such term in the organic governing documents of the Native 
     Hawaiian government.
       (8) Native hawaiian government.--The term ``Native Hawaiian 
     government'' means the citizens of the government of the 
     Native Hawaiian people that is recognized by the United 
     States under the authority of section 7(d)(2) of this Act.
       (9) Native hawaiian interim governing council.--The term 
     ``Native Hawaiian Interim Governing Council'' means the 
     interim governing council that is organized under section 
     7(c) of this Act.
       (10) Roll.--The term ``roll'' means the roll that is 
     developed under the authority of section 7(a) of this Act.
       (11) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (12) Task force.--The term ``Task Force'' means the Native 
     Hawaiian Interagency Task Force established under the 
     authority of section 6 of this Act.

     SEC. 3. UNITED STATES POLICY AND PURPOSE.

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

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

       (a) In General.--There is established within the Office of 
     the Secretary the United States Office for Native Hawaiian 
     Affairs.
       (b) Duties of the Office.--The United States Office for 
     Native Hawaiian Affairs shall--
       (1) effectuate and coordinate the special trust 
     relationship between the Native Hawaiian people and the 
     United States through the Secretary, and with all other 
     Federal agencies;
       (2) upon the recognition of the Native Hawaiian government 
     by the United States as provided for in section 7(d)(2) of 
     this Act, effectuate and coordinate the special trust 
     relationship between the Native Hawaiian government 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 people by providing timely notice to, and 
     consulting with the Native Hawaiian people prior to taking 
     any actions that may affect traditional or current Native 
     Hawaiian practices and matters that may have the potential to 
     significantly or uniquely affect Native Hawaiian resources, 
     rights, or lands, and upon the recognition of the Native 
     Hawaiian government as provided for in section 7(d)(2) of 
     this Act, fully integrate the principle and practice of 
     meaningful, regular, and appropriate consultation with the 
     Native Hawaiian government by providing timely notice to, and 
     consulting with the Native Hawaiian people and the Native 
     Hawaiian government prior to taking any actions that may have 
     the potential to significantly affect Native Hawaiian 
     resources, rights, or lands;
       (4) consult with the Native Hawaiian Interagency Task 
     Force, other Federal agencies, and with relevant agencies of 
     the State of Hawaii on policies, practices, and proposed 
     actions affecting Native Hawaiian resources, rights, or 
     lands;
       (5) be responsible for the preparation and submittal 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 of an annual 
     report detailing the activities of the Interagency Task Force 
     established under section 6 of this Act that are undertaken 
     with respect to the continuing process of reconciliation and 
     to effect meaningful consultation with the Native Hawaiian 
     people and the Native Hawaiian government and providing 
     recommendations for any necessary changes to existing Federal 
     statutes or regulations promulgated under the authority of 
     Federal law;
       (6) be responsible for continuing the process of 
     reconciliation with the Native Hawaiian people, and upon the 
     recognition of the Native Hawaiian government by the United 
     States as provided for in section 7(d)(2) of this Act, be 
     responsible for continuing the process of reconciliation with 
     the Native Hawaiian government; and
       (7) assist the Native Hawaiian people in facilitating a 
     process for self-determination, including but not limited to 
     the provision of technical assistance in the development of 
     the roll under section 7(a) of this Act, the organization of 
     the Native Hawaiian Interim Governing Council as provided for 
     in section 7(c) of this Act, and the recognition of the 
     Native Hawaiian government as provided for in section 7(d) of 
     this Act.
       (c) Authority.--The United States Office for Native 
     Hawaiian Affairs is authorized to enter into a contract with 
     or make grants for the purposes of the activities authorized 
     or addressed in section 7 of this Act for a period of 3 years 
     from the date of enactment of this Act.

     SEC. 5. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE.

       The Attorney General shall designate an appropriate 
     official within the Department of Justice to assist the 
     United States Office for Native Hawaiian Affairs in the 
     implementation and protection of the rights of Native 
     Hawaiians and their political, legal, and trust relationship 
     with the United States, and upon the recognition of the 
     Native Hawaiian government as provided for in section 7(d)(2) 
     of this Act, in the implementation and protection of the 
     rights of the Native Hawaiian government and its political, 
     legal, and trust relationship with the United States.

     SEC. 6. NATIVE HAWAIIAN INTERAGENCY TASK FORCE.

       (a) Establishment.--There is established an interagency 
     task force to be known as the ``Native Hawaiian Interagency 
     Task Force''.
       (b) Composition.--The Task Force shall be composed of 
     officials, to be designated by the President, from--
       (1) each Federal agency that establishes or implements 
     policies that affect Native Hawaiians or whose actions may 
     significantly or uniquely impact on Native Hawaiian 
     resources, rights, or lands;
       (2) the United States Office for Native Hawaiian Affairs 
     established under section 4 of this Act; and
       (3) the Executive Office of the President.
       (c) Lead Agencies.--The Department of the Interior and the 
     Department of Justice shall serve as the lead agencies of the 
     Task Force, and meetings of the Task Force shall be convened 
     at the request of either of the lead agencies.
       (d) Co-Chairs.--The Task Force representative of the United 
     States Office for Native Hawaiian Affairs established under 
     the authority of section 4 of this Act and the Attorney 
     General's designee under the authority of section 5 of this 
     Act shall serve as co-chairs of the Task Force.
       (e) Duties.--The responsibilities of the Task Force shall 
     be--
       (1) the coordination of Federal policies that affect Native 
     Hawaiians or actions by any agency or agencies of the Federal 
     Government which may significantly or uniquely impact on 
     Native Hawaiian resources, rights, or lands;
       (2) to assure that each Federal agency develops a policy on 
     consultation with the Native Hawaiian people, and upon 
     recognition of the Native Hawaiian government by the United 
     States as provided in section 7(d)(2) of this Act, 
     consultation with the Native Hawaiian government; and

[[Page 2837]]

       (3) to assure the participation of each Federal agency in 
     the development of the report to Congress authorized in 
     section 4(b)(5) of this Act.

     SEC. 7. PROCESS FOR THE DEVELOPMENT OF A ROLL FOR THE 
                   ORGANIZATION OF A NATIVE HAWAIIAN INTERIM 
                   GOVERNING COUNCIL, FOR THE ORGANIZATION OF A 
                   NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL AND A 
                   NATIVE HAWAIIAN GOVERNMENT, AND FOR THE 
                   RECOGNITION OF THE NATIVE HAWAIIAN GOVERNMENT.

       (a) Roll.--
       (1) Preparation of roll.--The United States Office for 
     Native Hawaiian Affairs shall assist the adult members of the 
     Native Hawaiian community who wish to participate in the 
     reorganization of a Native Hawaiian government in preparing a 
     roll for the purpose of the organization of a Native Hawaiian 
     Interim Governing Council. The roll shall include the names 
     of the--
       (A) adult members of the Native Hawaiian community who wish 
     to become citizens of a Native Hawaiian government and who 
     are--
       (i) the lineal descendants of the aboriginal, indigenous, 
     native people who resided in the islands that now comprise 
     the State of Hawaii on or before January 1, 1893, and who 
     occupied and exercised sovereignty in the Hawaiian 
     archipelago; or
       (ii) Native Hawaiians who were eligible in 1921 for the 
     programs authorized by the Hawaiian Homes Commission Act (42 
     Stat. 108, chapter 42) or their lineal descendants; and
       (B) the children of the adult members listed on the roll 
     prepared under this subsection.
       (2) Certification and submission.--
       (A) Commission.--
       (i) In general.--There is authorized to be established a 
     Commission to be composed of 9 members for the purpose of 
     certifying that the adult members of the Native Hawaiian 
     community on the roll meet the definition of Native Hawaiian, 
     as defined in section 2(7)(A) of this Act.
       (ii) Membership.--

       (I) Appointment.--The Secretary shall appoint the members 
     of the Commission in accordance with subclause (II). Any 
     vacancy on the Commission shall not affect its powers and 
     shall be filled in the same manner as the original 
     appointment.
       (II) Requirements.--The members of the Commission shall be 
     Native Hawaiian, as defined in section 2(7)(A) of this Act, 
     and shall have expertise in the certification of Native 
     Hawaiian ancestry.
       (III) Congressional submission of suggested candidates.--In 
     appointing members of the Commission, the Secretary may 
     choose such members from among--

       (aa) five suggested candidates submitted by the Majority 
     Leader of the Senate and the Minority Leader of the Senate 
     from a list of candidates provided to such leaders by the 
     Chairman and Vice Chairman of the Committee on Indian Affairs 
     of the Senate; and
       (bb) four suggested candidates submitted by the Speaker of 
     the House of Representatives and the Minority Leader of the 
     House of Representatives from a list provided to the Speaker 
     and the Minority Leader by the Chairman and Ranking member of 
     the Committee on Resources of the House of Representatives.
       (iii) 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.
       (B) Certification.--The Commission shall certify that the 
     individuals listed on the roll developed under the authority 
     of this subsection are Native Hawaiians, as defined in 
     section 2(7)(A) of this Act.
       (3) Secretary.--
       (A) Certification.--The Secretary shall review the 
     Commission's certification of the membership roll and 
     determine whether it is consistent with applicable Federal 
     law, including the special trust relationship between the 
     United States and the indigenous, native people of the United 
     States.
       (B) Publication.--Upon making the determination authorized 
     in subparagraph (A), the Secretary shall publish a final 
     roll.
       (C) Appeal.--
       (i) Establishment of mechanism.--The Secretary is 
     authorized to establish a mechanism for an appeal of the 
     Commission's determination as it concerns--

       (I) the exclusion of the name of a person who meets the 
     definition of Native Hawaiian, as defined in section 2(7)(A) 
     of this Act, from the roll; or
       (II) a challenge to the inclusion of the name of a person 
     on the roll on the grounds that the person does not meet the 
     definition of Native Hawaiian, as so defined.

       (ii) Publication; update.--The Secretary shall publish the 
     final roll while appeals are pending, and shall update the 
     final roll and the publication of the final roll upon the 
     final disposition of any appeal.
       (D) Failure to act.--If the Secretary fails to make the 
     certification authorized in subparagraph (A) within 90 days 
     of the date that the Commission submits the membership roll 
     to the Secretary, the certification shall be deemed to have 
     been made, and the Commission shall publish the final roll.
       (4) Effect of publication.--The publication of the final 
     roll shall serve as the basis for the eligibility of adult 
     members listed on the roll to participate in all referenda 
     and elections associated with the organization of a Native 
     Hawaiian Interim Governing Council and the Native Hawaiian 
     government.
       (b) Recognition of Rights.--The right of the Native 
     Hawaiian people to organize for their common welfare and to 
     adopt appropriate organic governing documents is hereby 
     recognized by the United States.
       (c) Organization of the Native Hawaiian Interim Governing 
     Council.--
       (1) Organization.--The adult members listed on the roll 
     developed under the authority of subsection (a) are 
     authorized to--
       (A) develop criteria for candidates to be elected to serve 
     on the Native Hawaiian Interim Governing Council;
       (B) determine the structure of the Native Hawaiian Interim 
     Governing Council; and
       (C) elect members to the Native Hawaiian Interim Governing 
     Council.
       (2) Election.--Upon the request of the adult members listed 
     on the roll developed under the authority of subsection (a), 
     the United States Office for Native Hawaiian Affairs may 
     assist the Native Hawaiian community in holding an election 
     by secret ballot (absentee and mail balloting permitted), to 
     elect the membership of the Native Hawaiian Interim Governing 
     Council.
       (3) Powers.--
       (A) In general.--The Native Hawaiian Interim Governing 
     Council is authorized to represent those on the roll in the 
     implementation of this Act and shall have no powers other 
     than those given to it in accordance with this Act.
       (B) Funding.--The Native Hawaiian Interim Governing Council 
     is authorized to enter into a contract or grant with any 
     Federal agency, including but not limited to, the United 
     States Office for Native Hawaiian Affairs within the 
     Department of the Interior and the Administration for Native 
     Americans within the Department of Health and Human Services, 
     to carry out the activities set forth in subparagraph (C).
       (C) Activities.--
       (i) In general.--The Native Hawaiian Interim Governing 
     Council is authorized to conduct a referendum of the adult 
     members listed on the roll developed under the authority of 
     subsection (a) for the purpose of determining (but not 
     limited to) the following:

       (I) The proposed elements of the organic governing 
     documents of a Native Hawaiian government.
       (II) The proposed powers and authorities to be exercised by 
     a Native Hawaiian government, as well as the proposed 
     privileges and immunities of a Native Hawaiian government.
       (III) The proposed civil rights and protection of such 
     rights of the citizens of a Native Hawaiian government and 
     all persons subject to the authority of a Native Hawaiian 
     government.

       (ii) Development of organic governing documents.--Based 
     upon the referendum, the Native Hawaiian Interim Governing 
     Council is authorized to develop proposed organic governing 
     documents for a Native Hawaiian government.
       (iii) Distribution.--The Native Hawaiian Interim Governing 
     Council is authorized to distribute to all adult members of 
     those listed on the roll, a copy of the proposed organic 
     governing documents, as drafted by the Native Hawaiian 
     Interim Governing Council, along with a brief impartial 
     description of the proposed organic governing documents.
       (iv) Consultation.--The Native Hawaiian Interim Governing 
     Council is authorized to freely consult with those members 
     listed on the roll concerning the text and description of the 
     proposed organic governing documents.
       (D) Elections.--
       (i) In general.--The Native Hawaiian Interim Governing 
     Council is authorized to hold elections for the purpose of 
     ratifying the proposed organic governing documents, and upon 
     ratification of the organic governing documents, to hold 
     elections for the officers of the Native Hawaiian government.
       (ii) Assistance.--Upon the request of the Native Hawaiian 
     Interim Governing Council, the United States Office of Native 
     Hawaiian Affairs may assist the Council in conducting such 
     elections.
       (4) Termination.--The Native Hawaiian Interim Governing 
     Council shall have no power or authority under this Act after 
     the time at which the duly elected officers of the Native 
     Hawaiian government take office.
       (d) Recognition of the Native Hawaiian Government.--
       (1) Process for recognition.--
       (A) Submittal of organic governing documents.--The duly 
     elected officers of the Native Hawaiian government shall 
     submit the organic governing documents of the Native Hawaiian 
     government to the Secretary.
       (B) Certifications.--Within 90 days of the date that the 
     duly elected officers of the Native Hawaiian government 
     submit the organic governing documents to the Secretary, the 
     Secretary shall certify that the organic governing 
     documents--
       (i) were adopted by a majority vote of the adult members 
     listed on the roll prepared under the authority of subsection 
     (a);

[[Page 2838]]

       (ii) are consistent with applicable Federal law and the 
     special trust relationship between the United States and the 
     indigenous native people of the United States;
       (iii) provide for the exercise of those governmental 
     authorities that are recognized by the United States as the 
     powers and authorities that are exercised by other 
     governments representing the indigenous, native people of the 
     United States;
       (iv) provide for the protection of the civil rights of the 
     citizens of the Native Hawaiian government and all persons 
     subject to the authority of the Native Hawaiian government, 
     and to assure that the Native Hawaiian government exercises 
     its authority consistent with the requirements of section 202 
     of the Act of April 11, 1968 (25 U.S.C. 1302);
       (v) prevent the sale, disposition, lease, or encumbrance of 
     lands, interests in lands, or other assets of the Native 
     Hawaiian government without the consent of the Native 
     Hawaiian government;
       (vi) establish the criteria for citizenship in the Native 
     Hawaiian government; and
       (vii) provide authority for the Native Hawaiian government 
     to negotiate with Federal, State, and local governments, and 
     other entities.
       (C) Failure to act.--If the Secretary fails to act within 
     90 days of the date that the duly elected officers of the 
     Native Hawaiian government submitted the organic governing 
     documents of the Native Hawaiian government to the Secretary, 
     the certifications authorized in subparagraph (B) shall be 
     deemed to have been made.
       (D) Resubmission in case of noncompliance with federal 
     law.--
       (i) Resubmission by the secretary.--If the Secretary 
     determines that the organic governing documents, or any part 
     thereof, are not consistent with applicable Federal law, the 
     Secretary shall resubmit the organic governing documents to 
     the duly elected officers of the Native Hawaiian government 
     along with a justification for each of the Secretary's 
     findings as to why the provisions are not consistent with 
     such law.
       (ii) Amendment and resubmission by the native hawaiian 
     government.--If the organic governing documents are 
     resubmitted to the duly elected officers of the Native 
     Hawaiian government by the Secretary under clause (i), the 
     duly elected officers of the Native Hawaiian government 
     shall--

       (I) amend the organic governing documents to ensure that 
     the documents comply with applicable Federal law; and
       (II) resubmit the amended organic governing documents to 
     the Secretary for certification in accordance with 
     subparagraphs (B) and (C).

       (2) Federal recognition.--
       (A) Recognition.--Notwithstanding any other provision of 
     law, upon the election of the officers of the Native Hawaiian 
     government and the certifications (or deemed certifications) 
     by the Secretary authorized in paragraph (1), Federal 
     recognition is hereby extended to the Native Hawaiian 
     government as the representative governing body of the Native 
     Hawaiian people.
       (B) No diminishment of rights or privileges.--Nothing 
     contained in this Act shall diminish, alter, or amend any 
     existing rights or privileges enjoyed by the Native Hawaiian 
     people which are not inconsistent with the provisions of this 
     Act.

     SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

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

     SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; 
                   NEGOTIATIONS.

       (a) Reaffirmation.--The delegation by the United States of 
     authority to the State of Hawaii to address the conditions of 
     Native Hawaiians contained in the Act entitled ``An Act to 
     provide for the admission of the State of Hawaii into the 
     Union'' approved March 18, 1959 (Public Law 86-3; 73 Stat. 5) 
     is hereby reaffirmed.
       (b) Negotiations.--Upon the Federal recognition of the 
     Native Hawaiian government pursuant to section 7(d)(2) of 
     this Act, the United States is authorized to negotiate and 
     enter into an agreement with the State of Hawaii and the 
     Native Hawaiian government regarding the transfer of lands, 
     resources, and assets dedicated to Native Hawaiian use under 
     existing law as in effect on the date of enactment of this 
     Act to the Native Hawaiian government.

     SEC. 10. DISCLAIMER.

       Nothing in this Act is intended to serve as a settlement of 
     any claims against the United States, or to affect the rights 
     of the Native Hawaiian people under international law.

     SEC. 11. REGULATIONS.

       The Secretary is authorized to make such rules and 
     regulations and such delegations of authority as the 
     Secretary deems necessary to carry out the provisions of this 
     Act.

     SEC. 12. SEVERABILITY.

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

                          ____________________