[Congressional Record (Bound Edition), Volume 156 (2010), Part 2]
[House]
[Pages 1637-1655]
[From the U.S. Government Publishing Office, www.gpo.gov]




         NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2009

  Mr. RAHALL. Mr. Speaker, pursuant to House Resolution 1083, I call up 
the bill (H.R. 2314) to express the policy of the United States 
regarding the United States relationship with Native Hawaiians and to 
provide a process for the recognition by the United States of the 
Native Hawaiian governing entity, and ask for its immediate 
consideration in the House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 1083, the bill 
is considered read.
  The text of the bill is as follows:

                               H.R. 2314

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Native Hawaiian Government 
     Reorganization Act of 2009''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the Constitution vests Congress with the authority to 
     address the conditions of the indigenous, native people of 
     the United States;
       (2) Native Hawaiians, the native people of the Hawaiian 
     archipelago that is now part of the United States, are 
     indigenous, native people of the United States;
       (3) the United States has a special political and legal 
     relationship to promote the welfare of the native people of 
     the United States, including Native Hawaiians;
       (4) under the treaty making power of the United States, 
     Congress exercised its constitutional authority to confirm 
     treaties between the United States and the Kingdom of Hawaii, 
     and from 1826 until 1893, the United States--
       (A) recognized the sovereignty of the Kingdom of Hawaii;
       (B) accorded full diplomatic recognition to the Kingdom of 
     Hawaii; and
       (C) entered into treaties and conventions with the Kingdom 
     of Hawaii to govern commerce and navigation in 1826, 1842, 
     1849, 1875, and 1887;
       (5) pursuant to the Hawaiian Homes Commission Act, 1920 (42 
     Stat. 108, chapter 42), the United States set aside 
     approximately 203,500 acres of land to address the conditions 
     of Native Hawaiians in the Federal territory that later 
     became the State of Hawaii;
       (6) by setting aside 203,500 acres of land for Native 
     Hawaiian homesteads and farms, the Hawaiian Homes Commission 
     Act assists the members of the Native Hawaiian community in 
     maintaining distinct native settlements throughout the State 
     of Hawaii;
       (7) approximately 6,800 Native Hawaiian families reside on 
     the Hawaiian Home Lands and approximately 18,000 Native 
     Hawaiians who are eligible to reside on the Hawaiian Home 
     Lands are on a waiting list to receive assignments of 
     Hawaiian Home Lands;
       (8)(A) in 1959, as part of the compact with the United 
     States admitting Hawaii into the Union, Congress established 
     a public trust (commonly known as the ``ceded lands trust''), 
     for 5 purposes, 1 of which is the betterment of the 
     conditions of Native Hawaiians;
       (B) the public trust consists of lands, including submerged 
     lands, natural resources, and the revenues derived from the 
     lands; and
       (C) the assets of this public trust have never been 
     completely inventoried or segregated;
       (9) Native Hawaiians have continuously sought access to the 
     ceded lands in order to establish and maintain native 
     settlements and distinct native communities throughout the 
     State;
       (10) the Hawaiian Home Lands and other ceded lands provide 
     an important foundation for the ability of the Native 
     Hawaiian community to maintain the practice of Native 
     Hawaiian culture, language, and traditions, and for the 
     survival and economic self-sufficiency of the Native Hawaiian 
     people;
       (11) Native Hawaiians continue to maintain other distinctly 
     native areas in Hawaii;
       (12) on November 23, 1993, Public Law 103-150 (107 Stat. 
     1510) (commonly known as the ``Apology Resolution'') was 
     enacted into law, extending an apology on behalf of the 
     United States to the native people of Hawaii for the United 
     States role in the overthrow of the Kingdom of Hawaii;
       (13) the Apology Resolution acknowledges that the overthrow 
     of the Kingdom of Hawaii occurred with the active 
     participation of agents and citizens of the United States and 
     further acknowledges that the Native Hawaiian people never 
     directly relinquished to the United States their claims to 
     their inherent sovereignty as a people over their national 
     lands, either through the Kingdom of Hawaii or through a 
     plebiscite or referendum;
       (14) the Apology Resolution expresses the commitment of 
     Congress and the President--
       (A) to acknowledge the ramifications of the overthrow of 
     the Kingdom of Hawaii;
       (B) to support reconciliation efforts between the United 
     States and Native Hawaiians; and
       (C) to consult with Native Hawaiians on the reconciliation 
     process as called for in the Apology Resolution;
       (15) despite the overthrow of the Government of the Kingdom 
     of Hawaii, Native Hawaiians have continued to maintain their 
     separate identity as a single distinct native community 
     through cultural, social, and political institutions, and to 
     give expression to their rights as native people to self-
     determination, self-governance, and economic self-
     sufficiency;
       (16) Native Hawaiians have also given expression to their 
     rights as native people to self-determination, self-
     governance, and economic self-sufficiency--
       (A) through the provision of governmental services to 
     Native Hawaiians, including the provision of--
       (i) health care services;
       (ii) educational programs;
       (iii) employment and training programs;
       (iv) economic development assistance programs;
       (v) children's services;
       (vi) conservation programs;
       (vii) fish and wildlife protection;
       (viii) agricultural programs;
       (ix) native language immersion programs;
       (x) native language immersion schools from kindergarten 
     through high school;
       (xi) college and master's degree programs in native 
     language immersion instruction; and
       (xii) traditional justice programs; and
       (B) by continuing their efforts to enhance Native Hawaiian 
     self-determination and local control;
       (17) Native Hawaiians are actively engaged in Native 
     Hawaiian cultural practices, traditional agricultural 
     methods, fishing and subsistence practices, maintenance of 
     cultural use areas and sacred sites, protection of burial 
     sites, and the exercise of their traditional rights to gather 
     medicinal plants and herbs, and food sources;
       (18) the Native Hawaiian people wish to preserve, develop, 
     and transmit to future generations of Native Hawaiians their 
     lands and Native Hawaiian political and cultural identity in 
     accordance with their traditions, beliefs, customs and 
     practices, language, and social and political institutions, 
     to control and manage their own lands, including ceded lands, 
     and to achieve greater self-determination over their own 
     affairs;
       (19) this Act provides a process within the framework of 
     Federal law for the Native Hawaiian people to exercise their 
     inherent rights as a distinct, indigenous, native community 
     to reorganize a single Native Hawaiian governing entity for 
     the purpose of giving expression to their rights as native 
     people to self-determination and self-governance;
       (20) Congress--
       (A) has declared that the United States has a special 
     political and legal relationship for the welfare of the 
     native peoples of the United States, including Native 
     Hawaiians;
       (B) has identified Native Hawaiians as a distinct group of 
     indigenous, native people of the United States within the 
     scope of its authority under the Constitution, and has 
     enacted scores of statutes on their behalf; and
       (C) has delegated broad authority to the State of Hawaii to 
     administer some of the United States responsibilities as they 
     relate to the Native Hawaiian people and their lands;
       (21) the United States has recognized and reaffirmed the 
     special political and legal relationship with the Native 
     Hawaiian people through the enactment of the Act entitled, 
     ``An Act to provide for the admission of the State of Hawaii 
     into the Union'', approved March 18, 1959 (Public Law 86-3; 
     73 Stat. 4), by--
       (A) ceding to the State of Hawaii title to the public lands 
     formerly held by the United States, and mandating that those 
     lands be held as a public trust for 5 purposes, 1 of which is 
     for the betterment of the conditions of Native Hawaiians; and
       (B) transferring the United States responsibility for the 
     administration of the Hawaiian Home Lands to the State of 
     Hawaii, but retaining the exclusive right of the United 
     States to consent to any actions affecting the lands included 
     in the trust and any amendments to the Hawaiian Homes 
     Commission Act, 1920 (42 Stat. 108, chapter 42) that are 
     enacted by the legislature of the State of Hawaii affecting 
     the beneficiaries under the Act;
       (22) the United States has continually recognized and 
     reaffirmed that--
       (A) Native Hawaiians have a cultural, historic, and land-
     based link to the aboriginal, indigenous, native people who 
     exercised sovereignty over the Hawaiian Islands;
       (B) Native Hawaiians have never relinquished their claims 
     to sovereignty or their sovereign lands;

[[Page 1638]]

       (C) the United States extends services to Native Hawaiians 
     because of their unique status as the indigenous, native 
     people of a once-sovereign nation with whom the United States 
     has a special political and legal relationship; and
       (D) the special relationship of American Indians, Alaska 
     Natives, and Native Hawaiians to the United States arises out 
     of their status as aboriginal, indigenous, native people of 
     the United States; and
       (23) the State of Hawaii supports the reaffirmation of the 
     special political and legal relationship between the Native 
     Hawaiian governing entity and the United States as evidenced 
     by 2 unanimous resolutions enacted by the Hawaii State 
     Legislature in the 2000 and 2001 sessions of the Legislature 
     and by the testimony of the Governor of the State of Hawaii 
     before the Committee on Indian Affairs of the Senate on 
     February 25, 2003, and March 1, 2005.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Aboriginal, indigenous, native people.--The term 
     ``aboriginal, indigenous, native people'' means people whom 
     Congress has recognized as the original inhabitants of the 
     lands that later became part of the United States and who 
     exercised sovereignty in the areas that later became part of 
     the United States.
       (2) Adult member.--The term ``adult member'' means a Native 
     Hawaiian who has attained the age of 18 and who elects to 
     participate in the reorganization of the Native Hawaiian 
     governing entity.
       (3) Apology resolution.--The term ``Apology Resolution'' 
     means Public Law 103-150 (107 Stat. 1510), a Joint Resolution 
     extending an apology to Native Hawaiians on behalf of the 
     United States for the participation of agents of the United 
     States in the January 17, 1893, overthrow of the Kingdom of 
     Hawaii.
       (4) Commission.--The term ``commission'' means the 
     Commission established under section 7(b) to provide for the 
     certification that those adult members of the Native Hawaiian 
     community listed on the roll meet the definition of Native 
     Hawaiian set forth in paragraph (10).
       (5) Council.--The term ``council'' means the Native 
     Hawaiian Interim Governing Council established under section 
     7(c)(2).
       (6) Indian program or service.--
       (A) In general.--The term ``Indian program or service'' 
     means any federally funded or authorized program or service 
     provided to an Indian tribe (or member of an Indian tribe) 
     because of the status of the members of the Indian tribe as 
     Indians.
       (B) Inclusions.--The term ``Indian program or service'' 
     includes a program or service provided by the Bureau of 
     Indian Affairs, the Indian Health Service, or any other 
     Federal agency.
       (7) Indian tribe.--The term ``Indian tribe'' has the 
     meaning given the term in section 4 of the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 450b).
       (8) Indigenous, native people.--The term ``indigenous, 
     native people'' means the lineal descendants of the 
     aboriginal, indigenous, native people of the United States.
       (9) Interagency coordinating group.--The term ``Interagency 
     Coordinating Group'' means the Native Hawaiian Interagency 
     Coordinating Group established under section 6.
       (10) Native hawaiian.--
       (A) In general.--Subject to subparagraph (B), for the 
     purpose of establishing the roll authorized under section 
     7(c)(1) and before the reaffirmation of the special political 
     and legal relationship between the United States and the 
     Native Hawaiian governing entity, the term ``Native 
     Hawaiian'' means--
       (i) an individual who is 1 of the indigenous, native people 
     of Hawaii and who is a direct lineal descendant of the 
     aboriginal, indigenous, native people who--

       (I) resided in the islands that now comprise the State of 
     Hawaii on or before January 1, 1893; and
       (II) occupied and exercised sovereignty in the Hawaiian 
     archipelago, including the area that now constitutes the 
     State of Hawaii; or

       (ii) an individual who is 1 of the indigenous, native 
     people of Hawaii and who was eligible in 1921 for the 
     programs authorized by the Hawaiian Homes Commission Act (42 
     Stat. 108, chapter 42) or a direct lineal descendant of that 
     individual.
       (B) No effect on other definitions.--Nothing in this 
     paragraph affects the definition of the term ``Native 
     Hawaiian'' under any other Federal or State law (including a 
     regulation).
       (11) Native hawaiian governing entity.--The term ``Native 
     Hawaiian Governing Entity'' means the governing entity 
     organized by the Native Hawaiian people pursuant to this Act.
       (12) Native hawaiian program or service.--The term ``Native 
     Hawaiian program or service'' means any program or service 
     provided to Native Hawaiians because of their status as 
     Native Hawaiians.
       (13) Office.--The term ``Office'' means the United States 
     Office for Native Hawaiian Relations established by section 
     5(a).
       (14) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (15) Special political and legal relationship.--The term 
     ``special political and legal relationship'' shall refer, 
     except where differences are specifically indicated elsewhere 
     in the Act, to the type of and nature of relationship the 
     United States has with the several federally recognized 
     Indian tribes.

     SEC. 4. UNITED STATES POLICY AND PURPOSE.

       (a) Policy.--The United States reaffirms that--
       (1) Native Hawaiians are a unique and distinct, indigenous, 
     native people with whom the United States has a special 
     political and legal relationship;
       (2) the United States has a special political and legal 
     relationship with the Native Hawaiian people which includes 
     promoting the welfare of Native Hawaiians;
       (3) Congress possesses the authority under the 
     Constitution, including but not limited to Article I, section 
     8, clause 3, to enact legislation to address the conditions 
     of Native Hawaiians and has exercised this authority through 
     the enactment of--
       (A) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, 
     chapter 42);
       (B) the Act entitled ``An Act to provide for the admission 
     of the State of Hawaii into the Union'', approved March 18, 
     1959 (Public Law 86-3, 73 Stat. 4); and
       (C) more than 150 other Federal laws addressing the 
     conditions of Native Hawaiians;
       (4) Native Hawaiians have--
       (A) an inherent right to autonomy in their internal 
     affairs;
       (B) an inherent right of self-determination and self-
     governance;
       (C) the right to reorganize a Native Hawaiian governing 
     entity; and
       (D) the right to become economically self-sufficient; and
       (5) the United States shall continue to engage in a process 
     of reconciliation and political relations with the Native 
     Hawaiian people.
       (b) Purpose.--The purpose of this Act is to provide a 
     process for the reorganization of the single Native Hawaiian 
     governing entity and the reaffirmation of the special 
     political and legal relationship between the United States 
     and that Native Hawaiian governing entity for purposes of 
     continuing a government-to-government relationship.

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

       (a) Establishment.--There is established within the Office 
     of the Secretary, the United States Office for Native 
     Hawaiian Relations.
       (b) Duties.--The Office shall--
       (1) continue the process of reconciliation with the Native 
     Hawaiian people in furtherance of the Apology Resolution;
       (2) upon the reaffirmation of the special political and 
     legal relationship between the single Native Hawaiian 
     governing entity and the United States, effectuate and 
     coordinate the special political and legal relationship 
     between the Native Hawaiian governing entity and the United 
     States through the Secretary, and with all other Federal 
     agencies;
       (3) fully integrate the principle and practice of 
     meaningful, regular, and appropriate consultation with the 
     Native Hawaiian governing entity by providing timely notice 
     to, and consulting with, the Native Hawaiian people and the 
     Native Hawaiian governing entity before taking any actions 
     that may have the potential to significantly affect Native 
     Hawaiian resources, rights, or lands;
       (4) consult with the Interagency Coordinating Group, other 
     Federal agencies, and the State of Hawaii on policies, 
     practices, and proposed actions affecting Native Hawaiian 
     resources, rights, or lands; and
       (5) prepare and submit to the Committee on Indian Affairs 
     and the Committee on Energy and Natural Resources of the 
     Senate and the Committee on Resources of the House of 
     Representatives an annual report detailing the activities of 
     the Interagency Coordinating Group that are undertaken with 
     respect to the continuing process of reconciliation and to 
     effect meaningful consultation with the Native Hawaiian 
     governing entity and providing recommendations for any 
     necessary changes to Federal law or regulations promulgated 
     under the authority of Federal law.
       (c) Applicability to Department of Defense.--This section 
     shall have no applicability to the Department of Defense or 
     to any agency or component of the Department of Defense, but 
     the Secretary of Defense may designate 1 or more officials as 
     liaison to the Office.

     SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.

       (a) Establishment.--In recognition that Federal programs 
     authorized to address the conditions of Native Hawaiians are 
     largely administered by Federal agencies other than the 
     Department of the Interior, there is established an 
     interagency coordinating group to be known as the ``Native 
     Hawaiian Interagency Coordinating Group''.
       (b) Composition.--The Interagency Coordinating Group shall 
     be composed of officials, to be designated by the President, 
     from--
       (1) each Federal agency that administers Native Hawaiian 
     programs, establishes or implements policies that affect 
     Native Hawaiians, or whose actions may significantly or 
     uniquely impact Native Hawaiian resources, rights, or lands; 
     and
       (2) the Office.
       (c) Lead Agency.--

[[Page 1639]]

       (1) In general.--The Department of the Interior shall serve 
     as the lead agency of the Interagency Coordinating Group.
       (2) Meetings.--The Secretary shall convene meetings of the 
     Interagency Coordinating Group.
       (d) Duties.--The Interagency Coordinating Group shall--
       (1) coordinate Federal programs and policies that affect 
     Native Hawaiians or actions by any agency or agencies of the 
     Federal Government that may significantly or uniquely affect 
     Native Hawaiian resources, rights, or lands;
       (2) consult with the Native Hawaiian governing entity, 
     through the coordination referred to in section 6(d)(1), but 
     the consultation obligation established in this provision 
     shall apply only after the satisfaction of all of the 
     conditions referred to in section 7(c)(6); and
       (3) ensure the participation of each Federal agency in the 
     development of the report to Congress authorized in section 
     5(b)(5).
       (e) Applicability to Department of Defense.--This section 
     shall have no applicability to the Department of Defense or 
     to any agency or component of the Department of Defense, but 
     the Secretary of Defense may designate 1 or more officials as 
     liaison to the Interagency Coordinating Group.

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

       (a) Recognition of the Native Hawaiian Governing Entity.--
     The right of the Native Hawaiian people to reorganize the 
     single Native Hawaiian governing entity to provide for their 
     common welfare and to adopt appropriate organic governing 
     documents is recognized by the United States.
       (b) Commission.--
       (1) In general.--There is authorized to be established a 
     Commission to be composed of 9 members for the purposes of--
       (A) preparing and maintaining a roll of the adult members 
     of the Native Hawaiian community who elect to participate in 
     the reorganization of the single Native Hawaiian governing 
     entity; and
       (B) certifying that the adult members of the Native 
     Hawaiian community proposed for inclusion on the roll meet 
     the definition of Native Hawaiian in section 3(10).
       (2) Membership.--
       (A) Appointment.--
       (i) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Secretary shall appoint the 
     members of the Commission in accordance with subparagraph 
     (B).
       (ii) Consideration.--In making an appointment under clause 
     (i), the Secretary may take into consideration a 
     recommendation made by any Native Hawaiian organization.
       (B) Requirements.--Each member of the Commission shall 
     demonstrate, as determined by the Secretary--
       (i) not less than 10 years of experience in the study and 
     determination of Native Hawaiian genealogy; and
       (ii) an ability to read and translate into English 
     documents written in the Hawaiian language.
       (C) Vacancies.--A vacancy on the Commission--
       (i) shall not affect the powers of the Commission; and
       (ii) shall be filled in the same manner as the original 
     appointment.
       (3) Expenses.--Each member of the Commission shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (4) Duties.--The Commission shall--
       (A) prepare and maintain a roll of the adult members of the 
     Native Hawaiian community who elect to participate in the 
     reorganization of the Native Hawaiian governing entity; and
       (B) certify that each of the adult members of the Native 
     Hawaiian community proposed for inclusion on the roll meets 
     the definition of Native Hawaiian in section 3(10).
       (5) Staff.--
       (A) In general.--The Commission may, without regard to the 
     civil service laws (including regulations), appoint and 
     terminate an executive director and such other additional 
     personnel as are necessary to enable the Commission to 
     perform the duties of the Commission.
       (B) Compensation.--
       (i) In general.--Except as provided in clause (ii), the 
     Commission may fix the compensation of the executive director 
     and other personnel without regard to the provisions of 
     chapter 51 and subchapter III of chapter 53 of title 5, 
     United States Code, relating to classification of positions 
     and General Schedule pay rates.
       (ii) Maximum rate of pay.--The rate of pay for the 
     executive director and other personnel shall not exceed the 
     rate payable for level V of the Executive Schedule under 
     section 5316 of title 5, United States Code.
       (6) Detail of federal government employees.--
       (A) In general.--An employee of the Federal Government may 
     be detailed to the Commission without reimbursement.
       (B) Civil service status.--The detail of the employee shall 
     be without interruption or loss of civil service status or 
     privilege.
       (7) Procurement of temporary and intermittent services.--
     The Commission may procure temporary and intermittent 
     services in accordance with section 3109(b) of title 5, 
     United States Code, at rates for individuals that do not 
     exceed the daily equivalent of the annual rate of basic pay 
     prescribed for level V of the Executive Schedule under 
     section 5316 of that title.
       (8) Expiration.--The Secretary shall dissolve the 
     Commission upon the reaffirmation of the special political 
     and legal relationship between the Native Hawaiian governing 
     entity and the United States.
       (c) Process for the Reorganization of the Native Hawaiian 
     Governing Entity.--
       (1) Roll.--
       (A) Contents.--The roll shall include the names of the 
     adult members of the Native Hawaiian community who elect to 
     participate in the reorganization of the Native Hawaiian 
     governing entity and are certified to be Native Hawaiian as 
     defined in section 3(10) by the Commission.
       (B) Formation of roll.--Each adult member of the Native 
     Hawaiian community who elects to participate in the 
     reorganization of the Native Hawaiian governing entity shall 
     submit to the Commission documentation in the form 
     established by the Commission that is sufficient to enable 
     the Commission to determine whether the individual meets the 
     definition of Native Hawaiian in section 3(10).
       (C) Documentation.--The Commission shall--
       (i) identify the types of documentation that may be 
     submitted to the Commission that would enable the Commission 
     to determine whether an individual meets the definition of 
     Native Hawaiian in section 3(10);
       (ii) establish a standard format for the submission of 
     documentation; and
       (iii) publish information related to clauses (i) and (ii) 
     in the Federal Register.
       (D) Consultation.--In making determinations that each of 
     the adult members of the Native Hawaiian community proposed 
     for inclusion on the roll meets the definition of Native 
     Hawaiian in section 3(10), the Commission may consult with 
     Native Hawaiian organizations, agencies of the State of 
     Hawaii including but not limited to the Department of 
     Hawaiian Home Lands, the Office of Hawaiian Affairs, and the 
     State Department of Health, and other entities with expertise 
     and experience in the determination of Native Hawaiian 
     ancestry and lineal descendancy.
       (E) Certification and submittal of roll to secretary.--The 
     Commission shall--
       (i) submit the roll containing the names of the adult 
     members of the Native Hawaiian community who meet the 
     definition of Native Hawaiian in section 3(10) to the 
     Secretary within 2 years from the date on which the 
     Commission is fully composed; and
       (ii) certify to the Secretary that each of the adult 
     members of the Native Hawaiian community proposed for 
     inclusion on the roll meets the definition of Native Hawaiian 
     in section 3(10).
       (F) Publication.--Upon certification by the Commission to 
     the Secretary that those listed on the roll meet the 
     definition of Native Hawaiian in section 3(10), the Secretary 
     shall publish the roll in the Federal Register.
       (G) Appeal.--The Secretary may establish a mechanism for an 
     appeal for any person whose name is excluded from the roll 
     who claims to meet the definition of Native Hawaiian in 
     section 3(10) and to be 18 years of age or older.
       (H) Publication; update.--The Secretary shall--
       (i) publish the roll regardless of whether appeals are 
     pending;
       (ii) update the roll and the publication of the roll on the 
     final disposition of any appeal; and
       (iii) update the roll to include any Native Hawaiian who 
     has attained the age of 18 and who has been certified by the 
     Commission as meeting the definition of Native Hawaiian in 
     section 3(10) after the initial publication of the roll or 
     after any subsequent publications of the roll.
       (I) Failure to act.--If the Secretary fails to publish the 
     roll, not later than 90 days after the date on which the roll 
     is submitted to the Secretary, the Commission shall publish 
     the roll notwithstanding any order or directive issued by the 
     Secretary or any other official of the Department of the 
     Interior to the contrary.
       (J) Effect of publication.--The publication of the initial 
     and updated roll shall serve as the basis for the eligibility 
     of adult members of the Native Hawaiian community whose names 
     are listed on those rolls to participate in the 
     reorganization of the Native Hawaiian governing entity.
       (2) Organization of the native hawaiian interim governing 
     council.--
       (A) Organization.--The adult members of the Native Hawaiian 
     community listed on the roll published under this section 
     may--
       (i) develop criteria for candidates to be elected to serve 
     on the Native Hawaiian Interim Governing Council;
       (ii) determine the structure of the Council; and

[[Page 1640]]

       (iii) elect members from individuals listed on the roll 
     published under this subsection to the Council.
       (B) Powers.--
       (i) In general.--The Council--

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

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

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

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

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

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

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

       (3) Submittal of organic governing documents.--Following 
     the reorganization of the Native Hawaiian governing entity 
     and the adoption of organic governing documents, the Council 
     shall submit the organic governing documents of the Native 
     Hawaiian governing entity to the Secretary.
       (4) Certifications.--
       (A) In general.--Within the context of the future 
     negotiations to be conducted under the authority of section 
     8(b)(1), and the subsequent actions by the Congress and the 
     State of Hawaii to enact legislation to implement the 
     agreements of the 3 governments, not later than 90 days after 
     the date on which the Council submits the organic governing 
     documents to the Secretary, the Secretary shall certify that 
     the organic governing documents--
       (i) establish the criteria for citizenship in the Native 
     Hawaiian governing entity;
       (ii) were adopted by a majority vote of the adult members 
     of the Native Hawaiian community whose names are listed on 
     the roll published by the Secretary;
       (iii) provide authority for the Native Hawaiian governing 
     entity to negotiate with Federal, State, and local 
     governments, and other entities;
       (iv) provide for the exercise of governmental authorities 
     by the Native Hawaiian governing entity, including any 
     authorities that may be delegated to the Native Hawaiian 
     governing entity by the United States and the State of Hawaii 
     following negotiations authorized in section 8(b)(1) and the 
     enactment of legislation to implement the agreements of the 3 
     governments;
       (v) prevent the sale, disposition, lease, or encumbrance of 
     lands, interests in lands, or other assets of the Native 
     Hawaiian governing entity without the consent of the Native 
     Hawaiian governing entity;
       (vi) provide for the protection of the civil rights of the 
     citizens of the Native Hawaiian governing entity and all 
     persons affected by the exercise of governmental powers and 
     authorities by the Native Hawaiian governing entity; and
       (vii) are consistent with applicable Federal law and the 
     special political and legal relationship between the United 
     States and the indigenous, native people of the United 
     States; provided that the provisions of Public Law 103-454, 
     25 U.S.C. 479a, shall not apply.
       (B) Resubmission in case of noncompliance with the 
     requirements of subparagraph (a).--
       (i) Resubmission by the secretary.--If the Secretary 
     determines that the organic governing documents, or any part 
     of the documents, do not meet all of the requirements set 
     forth in subparagraph (A), the Secretary shall resubmit the 
     organic governing documents to the Council, along with a 
     justification for each of the Secretary's findings as to why 
     the provisions are not in full compliance.
       (ii) Amendment and resubmission of organic governing 
     documents.--If the organic governing documents are 
     resubmitted to the Council by the Secretary under clause (i), 
     the Council shall--

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

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

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

       (a) Reaffirmation.--The delegation by the United States of 
     authority to the State of Hawaii to address the conditions of 
     the indigenous, native people of Hawaii contained in the Act 
     entitled ``An Act to provide for the admission of the State 
     of Hawaii into the Union'' approved March 18, 1959 (Public 
     Law 86-3, 73 Stat. 4), is reaffirmed.
       (b) Negotiations.--
       (1) In general.--Upon the reaffirmation of the special 
     political and legal relationship between the United States 
     and the Native Hawaiian governing entity, the United States 
     and the State of Hawaii may enter into negotiations with the 
     Native Hawaiian governing entity designed to lead to an 
     agreement addressing such matters as--
       (A) the transfer of lands, natural resources, and other 
     assets, and the protection of existing rights related to such 
     lands or resources;
       (B) the exercise of governmental authority over any 
     transferred lands, natural resources, and other assets, 
     including land use;
       (C) the exercise of civil and criminal jurisdiction;
       (D) the delegation of governmental powers and authorities 
     to the Native Hawaiian governing entity by the United States 
     and the State of Hawaii;
       (E) any residual responsibilities of the United States and 
     the State of Hawaii; and
       (F) grievances regarding assertions of historical wrongs 
     committed against Native Hawaiians by the United States or by 
     the State of Hawaii.
       (2) Amendments to existing laws.--Upon agreement on any 
     matter or matters negotiated with the United States, the 
     State of Hawaii, and the Native Hawaiian governing entity, 
     the parties are authorized to submit--
       (A) to the Committee on Indian Affairs of the Senate, the 
     Committee on Energy and Natural Resources of the Senate, and 
     the Committee on Resources of the House of Representatives, 
     recommendations for proposed amendments to Federal law that 
     will enable the implementation of agreements reached between 
     the 3 governments; and
       (B) to the Governor and the legislature of the State of 
     Hawaii, recommendations for proposed amendments to State law 
     that will enable the implementation of agreements reached 
     between the 3 governments.
       (3) Governmental authority and power.--Any governmental 
     authority or power to be exercised by the Native Hawaiian 
     governing entity which is currently exercised by the State or 
     Federal Governments shall be exercised by the Native Hawaiian 
     governing entity only as agreed to in negotiations pursuant 
     to section 8(b)(1) of this Act and beginning on the date on 
     which legislation to implement such agreement has been 
     enacted by the United States Congress, when applicable, and 
     by the State of Hawaii, when applicable. This includes any 
     required modifications to the Hawaii State Constitution in 
     accordance with the Hawaii Revised Statutes.
       (c) Claims.--
       (1) Disclaimers.--Nothing in this Act--
       (A) creates a cause of action against the United States or 
     any other entity or person;
       (B) alters existing law, including existing case law, 
     regarding obligations on the part of the United States or the 
     State of Hawaii with regard to Native Hawaiians or any Native 
     Hawaiian entity;
       (C) creates obligations that did not exist in any source of 
     Federal law prior to the date of enactment of this Act; or
       (D) establishes authority for the recognition of Native 
     Hawaiian groups other than the single Native Hawaiian 
     Governing Entity.
       (2) Federal sovereign immunity.--

[[Page 1641]]

       (A) Specific purpose.--Nothing in this Act is intended to 
     create or allow to be maintained in any court any potential 
     breach-of-trust actions, land claims, resource-protection or 
     resource-management claims, or similar types of claims 
     brought by or on behalf of Native Hawaiians or the Native 
     Hawaiian governing entity for equitable, monetary, or 
     Administrative Procedure Act-based relief against the United 
     States or the State of Hawaii, whether or not such claims 
     specifically assert an alleged breach of trust, call for an 
     accounting, seek declaratory relief, or seek the recovery of 
     or compensation for lands once held by Native Hawaiians.
       (B) Establishment and retention of sovereign immunity.--To 
     effectuate the ends expressed in section 8(c)(1) and 
     8(c)(2)(A), and notwithstanding any other provision of 
     Federal law, the United States retains its sovereign immunity 
     to any claim that existed prior to the enactment of this Act 
     (including, but not limited to, any claim based in whole or 
     in part on past events), and which could be brought by Native 
     Hawaiians or any Native Hawaiian governing entity. Nor shall 
     any preexisting waiver of sovereign immunity (including, but 
     not limited to, waivers set forth in chapter 7 of part I of 
     title 5, United States Code, and sections 1505 and 2409a of 
     title 28, United States Code) be applicable to any such 
     claims. This complete retention or reclaiming of sovereign 
     immunity also applies to every claim that might attempt to 
     rely on this Act for support, without regard to the source of 
     law under which any such claim might be asserted.
       (C) Effect.--It is the general effect of section 8(c)(2)(B) 
     that any claims that may already have accrued and might be 
     brought against the United States, including any claims of 
     the types specifically referred to in section 8(c)(2)(A), 
     along with both claims of a similar nature and claims arising 
     out of the same nucleus of operative facts as could give rise 
     to claims of the specific types referred to in section 
     8(c)(2)(A), be rendered nonjusticiable in suits brought by 
     plaintiffs other than the Federal Government.
       (3) State sovereignty immunity.--
       (A) Notwithstanding any other provision of Federal law, the 
     State retains its sovereign immunity, unless waived in accord 
     with State law, to any claim, established under any source of 
     law, regarding Native Hawaiians, that existed prior to the 
     enactment of this Act.
       (B) Nothing in this Act shall be construed to constitute an 
     override pursuant to section 5 of the Fourteenth Amendment of 
     State sovereign immunity held under the Eleventh Amendment.

     SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

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

     SEC. 10. SEVERABILITY.

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

     SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

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

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

                              {time}  1745


                             General Leave

  Mr. RAHALL. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks and 
insert extraneous material on H.R. 2134.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from West Virginia?
  There was no objection.
  Mr. RAHALL. Mr. Speaker, the history of these United States is 
replete with glory. From the moment we broke the bonds of tyranny and 
declared independence to the severe tests we endured to maintain our 
union of States during the Civil War, to developments in science, 
medicine, and technology, we as a Nation advanced for the benefit of 
the entire world. But throughout much of this history, our treatment of 
indigenous populations has been found wanting. The very policy that the 
United States advanced toward Native Americans from destruction to 
assimilation to reservation were conflicting and did not usually 
produce favorable results, at least from the perspective of the Native 
American.
  Today, we are considering a measure which seeks to rectify a wrong 
that occurred 117 years ago. On January 17, 1893, the legitimate 
Kingdom of Hawaii was overthrown by American speculators with the 
active participation of the U.S. military. Five years after this 
overthrow, Hawaii was annexed to the United States and the lands of the 
indigenous population were lost to sugar plantations. Their health, 
education, and economic standing diminished greatly, a saga that has 
been repeated again and again with respect to Native Americans 
throughout our country.
  The measure we are considering today is not a restitution measure, 
nor is it an outright recognition measure. What it would do is create a 
process by which the Native Hawaiian governing body would be 
reorganized, and the political and legal relationship with the United 
States would be reaffirmed.
  I think it is important to note what this bill does not do: It does 
not allow for gaming; it does not provide for the transfer of any 
lands; it does not change civil or criminal jurisdiction by the State 
or Federal Governments; and

[[Page 1642]]

it does not provide for any new eligibility into Indian programs.
  Following reorganization of a governing body, the bill authorizes 
negotiation among the Federal, State, and Native Hawaiian governing 
entities to address certain powers and authorities. Any changes in 
these areas would require enactment of additional Federal and possibly 
State legislation.
  Beginning in 1920, Congress began passing legislation specifically 
for the benefit of Native Hawaiians. To date, over 160 laws have been 
enacted to provide the Native Hawaiian community with everything from 
housing to repatriation of Hawaiian human remains from the Nation's 
museums. In each case, Congress understood its right and responsibility 
to enact laws affecting the native peoples of Hawaii similar to natives 
of the other 49 States. This is not a matter of race; it is a matter of 
Congress properly dealing with the indigenous populations as expressly 
sanctioned by the Constitution of the United States.
  To allege that the Congress cannot engage in legislation of the 
pending nature regarding Native Hawaiians is to ignore the fact that 
there are 564 Federally recognized Indian tribes in this country. The 
bill before us today is similar legislation that has passed the House 
in previous Congresses. During the 106th Congress, we passed a similar 
bill under suspension of the rules when the Republicans held the 
majority. That was under Tom DeLay's watch, but what a different tune 
we will hear today from the other side. Similar legislation also passed 
during last Congress by a large majority.
  So I urge my colleagues to vote to fulfill our constitutional 
responsibility toward indigenous people residing in the United States 
and vote for this bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Washington. Mr. Speaker, I yield myself such time as 
I may consume.
  Mr. Speaker, I rise in opposition to H.R. 2314 and the substitute 
text that will be offered by my good friend from Hawaii (Mr. 
Abercrombie).
  Mr. Speaker, at the outset of this debate, it is important for all 
Members to understand that the substitute text that they will 
ultimately be voting on today is fundamentally changed from the 
original underlying bill that the House voted on in 2007. This 
rewritten text, the Abercrombie substitute, was drafted behind closed 
doors away from public view. It was unveiled less than 48 hours before 
we in the House were to be debating and voting on that substitute. 
Regrettably, Mr. Speaker, this lack of transparency has become the 
standard operating procedure for this Democratic-controlled House.
  Mr. Speaker, I am certain we will hear appeals from the bill's 
advocates that the vote on this bill should not be a partisan matter. I 
would agree. This is not a partisan matter; rather, it is a question of 
what is right and constitutional. But appeals to nonpartisanship ring 
hollow when the bill was rewritten in secret by just one party and then 
rushed to the floor with little time for scrutiny by the minority, but 
more importantly, Mr. Speaker, little time for scrutiny by the American 
people or the citizens of Hawaii.
  There is nothing more troubling about the House voting on a 
fundamentally rewritten bill than the position made public by the 
Governor of Hawaii. Something is very wrong when that Governor, a 
longtime vocal advocate of Native Hawaiian recognition, feels compelled 
to issue a statement last night that she can't support this rewritten 
bill.
  Now, the Governor and I disagree on the fundamental question of 
recognition, I want to make that clear, just as I fundamentally 
disagree with my good friend from Hawaii (Mr. Abercrombie) but I also 
strongly disagree with the House acting to impose a changed bill on one 
of the 50 States over their Governor's objections, especially when this 
Governor has long supported, as I mentioned, the concept of Native 
Hawaiian recognition and the original text of the bill.
  Let me explain the difference between the underlying bill, which is 
basically what the House passed in the 110th Congress, and the 
Abercrombie amendment in the nature of a substitute. This is very 
important, Mr. Speaker. The original bill extended recognition to the 
Native Hawaiian entity but withheld any tribal powers and privileges, 
such as immunity from lawsuit and State jurisdiction, until after 
negotiations with--and the consent of--the State of Hawaii and this 
Congress. Though this does not resolve my fundamental objection to the 
bill, it was an arrangement that drew the strong support of Governor 
Lingle of Hawaii.
  In contrast, the substitute alters this fundamental nature of the 
bill. Let me quote the words that the Governor of Hawaii, Governor 
Linda Lingle, used to describe this rewrite: ``The current bill 
establishes that the Native Hawaiian governing entity would start with 
broad governmental powers and authorities, with negotiations to 
follow.'' Again, the original bill starts with negotiations, followed 
by a grant of powers and authorities that are subject to the consent of 
the State. But the substitute starts with the grant of powers and 
authorities without the consent of the State, followed by negotiations 
for yet more benefits and powers.
  Let me be specific, Mr. Speaker, in two instances. First, section 9 
of the substitute clearly spells out the powers granted to the Native 
American governing entity before negotiations without the consent of 
the State; it is immunity from any lawsuit in any Federal or State 
court, with only minor exceptions. Second, it is that ``governmental'' 
activities pursued by the entity or its officers and employees shall 
not be subject to State regulatory or taxation authority. The wording 
of this section suggests that the State criminal authority will not 
even apply to officers and employees of the Native Hawaiian governing 
entity as long as they are acting within the scope of their duties.
  To once again quote from the Governor of Hawaii's statement from last 
night, ``I do not believe such a structure, of two completely different 
sets of rules--one for `governmental' activities of the Native Hawaiian 
governing entity and its officers and employees, and one for everyone 
else--makes sense for Hawaii.''
  Quoting further, ``In addition, under the current bill, the Native 
Hawaiian governing entity has almost complete sovereign immunity from 
lawsuits, including from ordinary tort and contract lawsuits, and I do 
not believe this makes sense for the people of Hawaii.'' And I am 
quoting from Governor Lingle.
  Without question, this rewritten bill strikes at the heart of the 
State of Hawaii's authority to enforce health and environmental 
regulations, taxes, and criminal law enforcement equally among its 
citizens. Congress should not be party to imposing this upon this 
State, or for that matter any State. Yet, despite the State of Hawaii's 
concerns with the rewritten bill, here we are tonight debating it on 
the floor of the House of Representatives. This legislation violates 
also, in my view, the United States Constitution because it establishes 
a separate, race-based government of Native Hawaiians.
  The authors and advocates of this bill have argued that Native 
Hawaiian recognition is no different than Congress recognizing an 
Indian tribe, and yet, Mr. Speaker, there are very important and real 
differences. Native Hawaiians are not and never have been members of an 
Indian tribe. Native Hawaiians do not share the same political and 
legal history as Federally recognized Indian tribes. The historical 
record on this point is very, very clear. For example, in the Hawaii 
Organic Act of 1900, section 4 states that all persons who were 
citizens of the Republic of Hawaii in 1898 were declared citizens of 
the United States and citizens of the Territory of Hawaii.
  Mr. Speaker, if Congress then believed it was recognizing the 
existence of a separate Native Hawaiian community, the Organic Act 
would have expressly reflected this; instead, all Hawaiians were 
recognized as full citizens. Mr. Speaker, this is in stark contrast to 
our Nation's history of less than equal treatment of individual Indians 
and Indian tribes.

[[Page 1643]]

  But try as we might, Congress cannot revise historical and political 
facts. H.R. 2314 attempts to do just this, to rewrite legal history. 
Mr. Speaker, this observation is shared by constitutional and civil 
rights experts. For example, in its 7-2 decision, the Supreme Court in 
Rice v. Cayetano commented on the proposition of Native Hawaiian 
recognition, saying that it, and I quote from that case, ``would raise 
questions of considerable moment and difficulty. It is a matter of some 
dispute whether Congress may treat the Native Hawaiians as it does the 
Indian tribes.''
  Just yesterday, the U.S. Commission on Civil Rights reiterated its 
standing opposition to any legislation, and I quote from the 
commission, ``that would discriminate on the basis of race or national 
origin and further subdivide the American people into discrete 
subgroups according to varying degrees of privilege.''
  Mr. Speaker, in 1959 a vote was taken in Hawaii on the question of 
becoming a State. Over 94 percent voted in favor of statehood. In other 
words, citizens of Hawaii voted overwhelmingly to join our Union as one 
unified State.

                              {time}  1800

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

[[Page 1644]]

Attorney General, and I think that is reflected in the Governor's 
statement.
  In conversation with Governor Lingle today, we concluded that we 
would agree to disagree. As Representative Hastings has indicated, she 
continues to support the legislative object of the bill, and I want to 
assure the House that her administration will not be disadvantaged in 
any way in any negotiations undertaken upon the passage and signing of 
this bill.
  As a candidate for Governor myself, I am completely comfortable with 
the language of the substitute, and believe that no Governor, 
regardless of who it may be, will be disadvantaged. The substitute 
amendment treats a Native Hawaiian entity as any other native 
government, and it follows literally centuries of existing Native 
American law.
  Native Hawaiians are not a race. They are a native indigenous people 
of the United States. The United States Supreme Court has repeatedly 
held that legislation enacted to address the special concerns and 
conditions of native people of the United States does not constitute 
discrimination on the basis of race or ethnicity. The sovereign status 
of Indian tribes, recognized by the Constitution, was later extended to 
Alaska natives as indigenous people, and Representative Young can 
attest to that in his remarks. On this same basis then, Congress has 
enacted legislation on multiple occasions for the aboriginal, 
indigenous people of Hawaii.
  Absent the substitute, H.R. 2314 would unduly limit the power of the 
Native Hawaiian governing entity, upon recognition, to accomplish the 
ordinary and customary activities of any other native organization, 
such as providing for the welfare of their children or for the health 
care of its members. The substitute amendment then will ensure that the 
Native Hawaiian governing entity will have the same powers and 
authorities that other tribal governments exercise today.
  The Native Hawaiian Government will have sovereign immunity, as I 
indicated, the same as other native governments--no more, no less. This 
is not a new provision. Under the bill passed by the House in the last 
Congress, the Native Hawaiian governing entity would also have had 
sovereign immunity once it had been federally recognized.
  In support of this bill are the Congressional Delegation of Hawaii, 
the National Congress of American Indians, the Alaska Federation of 
Natives, et cetera, et cetera. The Native American Caucus, under 
Representatives Kildee and Cole, as caucus Chairs, are supportive as 
are the Native Hawaiian organizations, such as the Sovereign Council of 
Hawaiian Homestead Organizations, the Council for Native Hawaiian 
Advancement and the Office of Hawaiian Affairs. Local political leaders 
in both houses of the legislature and numerous resolutions from both of 
those bodies are in support.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. RAHALL. I yield the gentleman 2 additional minutes.
  Mr. ABERCROMBIE. I could not take leave of the floor, Mr. Speaker, 
without mentioning the following:
  It is one thing for Representative Hastings or Young or Rahall or 
myself and others to take to the floor, but without staff support, it 
simply couldn't be done.
  Our friend, an institutional giant of the Resources Committee, Marie 
Howard, is retiring from the Natural Resources Committee. I want to 
commend her, not just for the work on this bill, but for all of the 
devotion that she has had to the House.
  Janet Erickson is taking her place as staff director for Indian 
Affairs.
  In addition to Marie and Janet, Rick Healy and Jim Zoia have been 
heavily involved in bringing this bill to the floor. Their efforts are 
deeply appreciated by everyone.
  Countless hours of staff time in the administration--both 
departmental and within the White House--have been put forward.
  As has been indicated, Mr. Speaker, this bill has passed out of the 
House Natural Resources Committee four times already. It has passed 
from the House floor twice under the leadership of as diverse a group 
of Chairs as Jim Hansen, Don Young, George Miller, and Nick Rahall. I 
note as well that the bill has passed under the leadership of Speaker 
Dennis Hastert and under the leadership of my good friend Tom DeLay. It 
is not ideological. It is nonpartisan. It is the culmination of a 
legislative lifetime for me, and it is the last occasion I will have to 
address the House as I take my leave.
  Mr. Speaker, I love this House. I admire and respect every Member. It 
has been a privilege for me to be first sworn in as the last person to 
be sworn in by Speaker Tip O'Neill. I take my leave today with profound 
respect, admiration and affection for every Member of this House of 
Representatives. This is the people's House. You can only enter it upon 
the fact of having been elected by your constituents. They have placed 
their faith and trust in us, and I extend my faith and trust that this 
House will continue the great tradition of democracy.
  I want to say to one and all that I love you, and I love this House.
  Mr. Speaker, I rise today in support of H.R. 2314, the Native 
Hawaiian Government Reorganization Act of 2009 and a substitute 
amendment that I will offer on the House floor. This is legislation 
that the Hawaii Congressional delegation has been working on for more 
than 10 years and it is a privilege to see this progress through the 
legislative process as my time in Congress comes to an end.
  The purpose of the bill is to provide a process for the 
reorganization of the Native Hawaiian governing entity for the purposes 
of a federally recognized government-to-government relationship. The 
Native Hawaiian Government Reorganization Act would provide Native 
Hawaiians the same right of self-governance and self-determination that 
are afforded to other indigenous peoples.
  Since Hawaii was annexed as a territory, the United States has 
treated Native Hawaiians in a manner similar to that of American 
Indians and Alaska Natives. This bill would formalize that relationship 
and establish parity in federal policies towards all of our indigenous 
peoples.
  I would also like to provide supporting documentation on the sections 
of H.R. 2314 primarily affected by the amendment in the nature of a 
substitute that I am offering on the House floor today. The following 
is additional language on Sections 3, 9 and 10.


                           SEC 3. DEFINITIONS

       The definition of ``Native Hawaiian Membership 
     Organization'' identifies organizations through which Native 
     Hawaiians have sought to preserve their culture, native 
     traditions, and self-governance. These organizations are an 
     important (though not the exclusive) means through which 
     Native Hawaiians have succeeded in maintaining their native 
     traditions and culture, and given expression to their rights 
     to self-determination and self-governance. Indeed, Congress 
     has relied on such organizations to function as official 
     representatives of the Native Hawaiian community in other 
     statutory contexts. In the Native American Graves Protection 
     and Repatriation Act, for example, Native Hawaiian 
     organizations function as representatives of the Native 
     Hawaiian community with respect to Native Hawaiian remains 
     and funerary objects, just as federally-recognized Indian 
     tribes represent their communities with respect to Indian 
     remains and objects. See 25 U.S.C. Sec. 3001 et seq.
       The definition of ``qualified Native Hawaiian constituent'' 
     identifies adult U.S. citizens who, subject to the procedures 
     and provisions of Section 8 of the Act, will be eligible to 
     participate in the initial reorganization of the Native 
     Hawaiian governing entity. The definition of ``qualified 
     Native Hawaiian constituent'' differs from similar 
     definitions in prior versions of this legislation in that it 
     requires not only descent from the aboriginal, indigenous, 
     native inhabitants of Hawaii, but also maintenance of ``a 
     significant cultural, social, or civic connection to the 
     Native Hawaiian community.'' An individual must demonstrate 
     this connection by satisfying at least two of the ten listed 
     criteria, which include residence in Hawaii, residence on 
     Hawaiian Homes Commission Act (HHCA) lands (or status as the 
     child or grandchild of such a resident), eligibility to be a 
     beneficiary of Hawaiian Homes Commission Act programs, status 
     as the child or grandchild of a person with such eligibility, 
     residence or ownership interest in ``kuleana land'' that is 
     owned in whole or in part by a verified lineal descendant of 
     the person who received original title to such land (or 
     status as a child or grandchild of a person with such a 
     residence or ownership interest), attendance for at least one 
     school year at a school or program taught through the medium 
     of the Hawaiian language or at a school founded and operated 
     primarily or exclusively for the benefit of Native Hawaiians 
     (or status as the child or grandchild of a person who 
     attended such a program), membership in a Native Hawaiian 
     organization, or recognition

[[Page 1645]]

     as Native Hawaiian and as the son or daughter of a person 
     recognized as Native Hawaiian by other members of the Native 
     Hawaiian community.
       The inclusion of these criteria will ensure that the 
     persons who participate in the reorganization of the Native 
     Hawaiian governing entity are persons with Native Hawaiian 
     ancestry who have established ties to the Native Hawaiian 
     community, as evidenced through, for example, connection to 
     Native Hawaiian traditional lands, whether HHCA lands or 
     kuleana lands, or a combination of residence in Hawaii and 
     connections with Hawaiian-language schools or Native Hawaiian 
     associations and organizations--both of which are means 
     through which the Native Hawaiian community has sought to 
     preserve and give expression to its culture and traditions. 
     There is precedent for using associative factors such as 
     kinship, land, and participation in native organizations in 
     determining tribal membership. See, e.g., 25 CFR 
     Sec. 83.7(b)(1)(vii) & (2)(iv) (including ``language'' and 
     ``kinship organization[s]'' among the criteria the Department 
     of the Interior considers in determining whether petitioning 
     tribes can establish that they are a distinct native 
     community). The last criterion, recognition as Native 
     Hawaiian by the Native Hawaiian community, is also akin to 
     criteria used to define membership in a native community in 
     other contexts. See, e.g., 43 U.S.C. Sec. 1602(b) (Alaska 
     Native Claims Settlement Act (``ANCSA'')). The definition of 
     ``qualified Native Hawaiian constituent'' will ensure that 
     the persons who participate in that reorganization are 
     appropriately connected to the Native Hawaiian community.
       Once the Native Hawaiian governing entity is reorganized, 
     the United States will recognize and affirm the entity's 
     inherent power and authority (akin to the inherent power and 
     authority of any Indian tribe) to determine its own 
     membership criteria, to determine its own membership, and to 
     grant, deny, revoke, or qualify membership without regard to 
     whether any person was or was not deemed to be a ``qualified 
     Native Hawaiian constituent'' under this Act. Membership 
     criteria set forth in the Native Hawaiian governing entity's 
     organic governing documents should provide that membership is 
     voluntary and can be relinquished, as is typically the case 
     with Indian tribes.


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

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


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

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

[[Page 1646]]

     Hawaiian governing entity--could alter many of these ground 
     rules. For example, if the three sovereigns eventually agreed 
     to the creation of Indian country within the State of Hawaii 
     (and legislation was then enacted to implement that 
     agreement), then it is possible that the Native Hawaiian 
     governing entity could then exercise certain types of 
     authority or jurisdiction over nonmembers (even without their 
     express consent).


                            Sec. 9(d) Claims

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


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

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


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

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


                   Sec. 10(d) Real Property Transfers

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

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

                              {time}  1815

  And the progress they have made and the contribution they have made 
to the State is amazing. They are the number one, I would say, economic 
driving force in the State today. From a large group of people, 13 
basic different tribes, regions, they are from a group that wasn't 
recognized other than the fact that they were natives, that they really 
did not fit well. But they were part of this State before we long came 
there, my State, and their contribution, because they were recognized, 
is just awesome. And I'm hoping this happens in the State of Hawaii.
  For those in Hawaii that may oppose this, open your hearts. Open your 
minds. Maybe do a little something a little different in Hawaii, as we 
did in Alaska, and see the benefit to the individual, not only the 
natives but everybody else. This legislation is a step forward. Is it 
perfect? The Governor says no. I think it's open for debate. But if we 
don't do something, if we don't move forward, those people will be 
neglected again.

[[Page 1647]]

  So I ask my colleagues on my side and on the other side to consider 
moving on something that is humanely the right thing to do for a group 
of people that are Americans. They are aboriginals to the State of 
Hawaii. They are brothers to Alaska. We've worked together. We will 
continue to do that.
  So I compliment, again, my good friend Neil for his work and his 
dedication to this House, representing his people. That's what we're 
here for. And thank God we do have people like that left.
  I will miss you, Neil.
  Mr. RAHALL. Mr. Speaker, I am very proud at this moment to yield 6 
minutes to the gentlewoman from Hawaii (Ms. Hirono), who has been 
instrumental as well in passing this legislation and bringing it, that 
is, to the point that we are now experiencing.
  Ms. HIRONO. Mr. Speaker, I rise today in strong support of H.R. 2314, 
the Native Hawaiian Government Reorganization Act, and I thank my good 
friend Congressman Young from Alaska for his remarks.
  Long denied the recognition and rights accorded to America's other 
indigenous people, this bill will finally enable Native Hawaiians to 
embark on their long-awaited process of achieving self-determination. I 
would like to thank Chairman Rahall for his leadership and general 
support of this important bill. And, of course, I want to recognize and 
thank my friend Congressman Abercrombie, the bill's chief sponsor, for 
his years of advocacy for this bill and for his dedicated service to 
our State and to our country. It is fitting that one of his last 
legislative actions before his departure from this body will be on the 
Native Hawaiian Government Reorganization Act, a bill that we both care 
deeply about.
  How we treat our native indigenous people reflects our values and who 
we are as a country. Clearly there is much in the history of our 
interactions with the native people of what is now the United States 
that makes us less than proud. The American Indians, Alaska Natives, 
and Native Hawaiians, all indigenous people, have suffered at the hands 
of our government. But one of the great attributes of America has 
always been the ability to look objectively at our history, learn from 
it, and, when possible, to make amends.
  H.R. 2314 has been more than 10 years in the making. It has been a 
deliberative and open legislative process. There have been 12 
congressional hearings on this bill, five of which were held in Hawaii. 
It has been marked up by committees in both Chambers. The House has 
passed this bill twice, in 2000 and again in 2007. We have a bill now 
that is constitutional and one that the House should again pass.
  The goals and purposes of this bill are consistent with the history 
of the Native Hawaiian people and the record of the United States' 
involvement in Hawaii. The bill is also consistent with the over 160 
existing Federal laws that promote the welfare of the Native Hawaiian 
people by, among other things, helping them to preserve their culture 
and return to their lands. Building on that history, H.R. 2314 will 
formalize the special political and legal relationship between the 
United States and the Native Hawaiians by providing a process through 
which the Native Hawaiian community can reorganize its governing entity 
within this relationship.
  The Kingdom of Hawaii was overthrown in 1893. Hawaii's last monarch, 
Queen Liliuokalani, was deposed by an armed group of businessmen and 
sugar planters, who were American by birth or heritage, with the 
critical support of the U.S. troops. The queen agreed to relinquish her 
thrown under protest to avoid bloodshed. She believed the United 
States, with which Hawaii had diplomatic relations, would do the right 
thing and restore her to the thrown.
  It's important to note that the sovereign nation of Hawaii had 
treaties with other nations besides the United States, including Great 
Britain, France, Germany, Italy, Japan, and Russia. As we now know, 
despite the objections of U.S. President Grover Cleveland, the 
injustice of the overthrow of an independent sovereign nation was 
allowed to stand and the Republic of Hawaii was established.
  In 1898, the United States annexed Hawaii. Prior to annexation, a 
petition drive organized by Native Hawaiians secured signatures of 
almost two-thirds of the Native Hawaiian population who opposed 
annexation. The total was 29,000 signatures out of an estimated Native 
Hawaiian population of 40,000. As a further historical note, the Native 
Hawaiian population prior to Western contact numbered between a 
conservative estimate of 300,000 to as many as 1 million Native 
Hawaiians.
  The siege of Native Hawaiian culture continued after annexation. The 
Republic of Hawaii prohibited the use of the Hawaiian language in 
schools. Everyday use of the Hawaiian language diminished greatly and 
was in danger of dying out. Hula dancing, which had been suppressed by 
the missionaries and then restored by King Kalakaua, who preceded Queen 
Liliuokalani, survived but did not flourish. Hawaiians were pressured 
to assimilate and much of their vibrant culture was lost or went 
underground.
  In 1903, Prince Jonah Kuhio Kalanianaole was elected to serve as 
Hawaii's delegate to Congress. And one of his most notable achievements 
was the passage of the Hawaiian Homes Commission Act of 1920, which set 
aside some 200,000 acres of land for Native Hawaiians. The reason for 
the legislation was the landless status of so many Native Hawaiians who 
were displaced by newcomers to the islands and who became the most 
disadvantaged population in their native land. Congress passed the 
Hawaiian Homes Commission Act, which is still in force, in recognition 
of its responsibility toward Native Hawaiians.
  As with other indigenous people, Native Hawaiian views on land tenure 
were different from that of the newcomers, resulting in loss of much of 
the land that had been traditionally occupied and cultivated by Native 
Hawaiians. They lost these lands to these newcomers.
  Hawaii became a State in 1959. Beginning in the late 1960s and early 
1970s, a Native Hawaiian cultural rediscovery began in music, hula, 
language, and other aspects of the culture. This cultural renaissance 
was inspired by hula masters or kumu hula who helped bring back ancient 
and traditional hula, musicians and vocalists who brought back 
traditional music and sang in the Hawaiian language, and political 
leaders who sought to protect Hawaii's sacred places and natural 
beauty.
  This flourishing of Hawaiian culture was not met with fear in Hawaii 
but with joy and celebration and an increased connection with each 
other. People of all ethnicities in Hawaii respect and honor the Native 
Hawaiian culture. The idea of self-determination by Native Hawaiians is 
regarded by most of our residents as just because we understand 
Hawaii's history and the importance of our host culture.
  The SPEAKER pro tempore (Mr. Yarmuth). The time of the gentlewoman 
has expired.
  Mr. RAHALL. I yield the gentlewoman an additional 1 minute.
  Ms. HIRONO. In closing, it is well established that the United States 
Constitution grants Congress broad general powers to legislate and 
respect the native people, and these are powers that the U.S. Supreme 
Court has consistently described as ``plenary and exclusive.'' 
Congress's plenary authority over Indian affairs includes the power to 
authorize and prescribe the process by which Indian tribes and 
aboriginal people organize or reorganize for purposes of carrying out a 
government-to-government relationship with the United States.
  The State of Hawaii motto, which was also the motto of the Kingdom of 
Hawaii, is ``Ua mau ke ea o ka aina i ka pono,'' which translates to 
``the life of the land is perpetuated in righteousness.'' Native 
Hawaiians, like American Indians and Alaska Natives, have an inherent 
sovereignty based on their status as indigenous, aboriginal people. I 
urge your support of H.R. 2314.
  Mahalo nui loa. Thank you.
  Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 5 
minutes to the gentleman from California (Mr. McClintock).

[[Page 1648]]


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

                              {time}  1830

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

[[Page 1649]]

broader conceptualization of indigenous peoples, allowing Congress to 
recognize indigenous groups, even those who are culturally and 
genealogically distinct from the narrow concept of being an Indian or 
as a tribe.
  In the Hawaiian Homes Commission Act of 1921, Congress expressed and 
reaffirmed the special and trust relationship between the United States 
and the Native Hawaiians. In addition, the act also recognized the 
Native Hawaiians as a distinct and unique indigenous people. Native 
Hawaiians are in fact indigenous, aboriginal people living within what 
is now the borders of the United States and those living in the State 
of Hawaii, and it is unfortunate that even today the status of some 
400,000 indigenous Native Hawaiians have yet to be afforded the same 
recognition as our first Americans.
  Mr. Speaker, over the years the treatment of indigenous Native 
Hawaiians by the U.S. Government has been piecemeal at best. There is 
estimated over 150 laws that have been passed by the Congress related 
to the social, educational, economic, and cultural needs of the 
indigenous Native Hawaiians. This proposed bill sets the institutional 
framework for the establishment of a relationship between the United 
States and the indigenous Native Hawaiians, just as Congress has done 
for the indigenous American Indians and indigenous Native Alaskans.
  I submit, Mr. Speaker, there are only three distinct indigenous 
groups under the U.S. sovereignty: American Indians within the 
continental United States, Native Alaskans, and Native Hawaiians.
  Mr. Speaker, the bill we have before us today will continue the long 
but necessary road towards full recognition by the Congress of the 
rights of the indigenous Native Hawaiians.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. RAHALL. I yield the gentleman 30 additional seconds.
  Mr. FALEOMAVAEGA. The underlying issue in this piece of legislation 
is not about the existence of Native Hawaiians. That much has been 
already determined. This bill is to establish a process giving the 
indigenous Native Hawaiians the same status that we have done for the 
indigenous American Indians and the indigenous Native Alaskans. Nothing 
to do with race. It is about giving proper recognition, and also as a 
moral imperative on the part of our government, give proper recognition 
to the Native Hawaiians. They deserve this. They are not begging for 
anything. Just give them proper recognition. I ask my colleagues to 
support this bill.
  Mr. Speaker, I rise in strong support of the ``Native Hawaiian 
Government Reorganization Act of 2009.'' This important piece of 
legislation is to reaffirm the special political and legal relationship 
between the United States and the indigenous Native Hawaiians for 
purposes of continuing a government-to-government relationship. I want 
to thank Chairman Nick Rahall and members of the Committee on Natural 
Resources for their support. I especially want to commend and recognize 
my good friend and colleague, the gentleman from Hawaii, Mr. 
Abercrombie, for his leadership and tireless efforts in bringing this 
legislation to the floor for consideration. For some 20 years, I've had 
the privilege of working closely with Mr. Abercrombie on legislation 
that has benefited both constituents and the great State of Hawaii. I 
also want to commend my good friend, Ms. Hirono, and other Members for 
their cosponsoring this legislation.
  The legislation before us is very important for many reasons, but 
none more critical than for Congress to extend full recognition to some 
400,000 indigenous Native Hawaiians in the State of Hawaii. 
Constitutionally, Congress has the authority to address the conditions 
of the native people of the United States and the indigenous people of 
the Hawaiian Islands are a distinctly native community that for many 
years existed as a sovereign entity. History shows that from 1826 until 
1893, the United States government recognized the Kingdom of Hawaii as 
a sovereign and independent nation; accorded full diplomatic 
recognition to the Kingdom of Hawaii; and entered into treaties and 
conventions of peace, friendship and commerce with the Kingdom of 
Hawaii to govern trade, commerce, and navigation in 1826, 1842, 1849, 
1875 and 1887. Yes, even our government, the United States of America 
was a party to these treaties and conventions with the Sovereign 
Kingdom of Hawaii.
  Mr. Speaker, more than 100 years ago, ambitious descendants of U.S. 
missionaries and sugar planters, aided by the unauthorized and illegal 
use of U.S. military forces, overthrew the sovereign Kingdom of Hawaii 
which at that time was ruled by Queen Lili'uokalani. In 1993, Congress 
reaffirmed such a travesty on the Kingdom of Hawaii when they passed a 
joint resolution to acknowledge and apologize on behalf of the United 
States for the illegal and unlawful overthrow of the Hawaiian Kingdom 
in 1893, and for the deprivation of the rights of the indigenous Native 
Hawaiians to self-determination.
  To this day, the status of the indigenous Native Hawaiians was never 
properly addressed by the United States Congress. And it is within 
Congress' constitutional authority to do so. Congress and U.S. Supreme 
Court decisions have properly determined that American Indians of the 
lower 48 States are an indigenous people. In fact, recognition of the 
Native Alaskans as indigenous people of the U.S. demonstrates this 
constitutional power. And even the U.S. Supreme Court has recognized 
this constitutional authority and has accepted a broader 
conceptualization of indigenous people, allowing Congress to recognize 
indigenous groups, even those who are culturally and genealogically 
distinct from the narrow concept of being an ``Indian'' and ``tribe.''
  In 1971, Congress enacted the Alaska Native Claims Settlement Act 
(ANCSA), adopting special legislation to deal with Native Alaskans' 
land claims and creating a governing structure (corporations) through 
which to manage the federal relationship with the indigenous group even 
though the Alaska Natives differed culturally, historically, and 
genealogically from American Indians. In the ANCSA, ``Native'' in 
defined to mean ``a citizen of the U.S. who is a person of one-fourth 
degree or more Alaska Indian, Eskimo, Aleut blood, or combination 
thereof'' and ``Native Group'' to mean ``any tribe, band, clan, 
village, community, or village of Natives in Alaska.'' The indigenous 
Native Hawaiians also meet these definitions.
  In the Hawaiian Homes Commission Act of 1921, Congress expressed and 
reaffirmed the ``special'' and ``trust'' relationship between the 
United States and the Native Hawaiians. In addition, the Act also 
recognized Native Hawaiians as ``a distinct and unique indigenous 
people.'' Native Hawaiians are, in fact, indigenous, aboriginal people 
living within what are now the borders of the U.S. and it is 
unfortunate that even today the status of some 400,000 indigenous 
Native Hawaiians have yet to be afforded this same recognition as our 
First Americans.
  Although Rice vs. Cayetano has no bearing on this legislation, I 
should note that the Supreme Court's decision states, ``Congress . . . 
has determined that native Hawaiians have a status like that of 
organized Indian tribes.'' Even the author of the State's brief, now 
Chief Justice John Roberts of the U.S. Supreme Court, clearly explained 
that the Congress has plenary authority that is not limited to only 
American Indians by stating the following:

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

  Over the years, the treatment of indigenous Native Hawaiians by the 
U.S. government has been piecemeal at best. There is estimated over 160 
laws that have been passed by the Congress related to the social, 
educational, economic, and cultural needs of the indigenous Native 
Hawaiians. This proposed bill sets the institutional framework for the 
establishment of a relationship between the U.S. and the indigenous 
Native Hawaiians just as Congress has done for the indigenous American 
Indians and indigenous Native Alaskans. I submit, there are only three, 
district indigenous peoples, under U.S. sovereignity--American Indians 
within the continental United States, Native Alaskans and Native 
Hawaiians.
  Mr. Speaker, the proposed bill that we have before us today will 
continue the long but necessary road towards full recognition by 
Congress of the indigenous Native Hawaiians. The underlying issue in 
this piece of legislation is not about the existence of the Native 
Hawaiians. That much has already been determined. This bill however is 
to establish a process by giving the indigenous Native Hawaiians the 
same status as we have done for the indigenous American Indians and the 
indigenous Native Alaskans.

[[Page 1650]]

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

                              {time}  1845

  Assimilation was the watchword of the day, the code of the day, and 
that was the message and the promise and the commitment that Hawaiians 
made to the United States Congress when they were brought into the 
Union as a State.
  Well, today we see a piece of legislation that comes before us that 
defies the very concept that was a principle that was clearly 
understood here on this floor of this Congress when Hawaii was brought 
into the Union.

[[Page 1651]]

  And when I look at what this does, the broad definition of Native 
Hawaiians that might mean Native Hawaiians anywhere where they are in 
the United States that could be brought under this umbrella of 
beneficiaries of assets that could be as great as 40 percent of the 
land mass of the State of the Hawaii to be governed and regulated by 
self-described, self-defined Native Hawaiians at the expense of 
everyone else, and I wonder how good these promises might be, the 
promises that we wouldn't set up gaming institutions, we wouldn't set 
up toll roads or roadblocks; this would just be a very compatible, 
logical pro-tourism industry. It might be. In fact, it probably will 
be, Mr. Speaker.
  But I am so concerned about the broader fundamental principle that 
applies here. And I would argue that the gentleman that has spoken on 
behalf of those Native Americans that actually are real tribes by 
definition that exists within statute and within the tradition of law, 
have no solution for the reservation system that we have. They envision 
it the same 100 years from now as it is today. And so we see the 
replication of pathologies from reservation to reservation and not the 
opportunities.
  I would have supported the Dawes Act however many years ago.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. HASTINGS of Washington. I yield the gentleman 1 additional 
minute.
  Mr. KING of Iowa. I thank the gentleman, and I'd just make this 
point. When I read the material on this coming back up again, and I so 
appreciate Mr. Abercrombie's work, and I know his heart and his head 
are in this. This is in a verbatim email that I wrote up to my staff, 
and it goes this way.
  This bill makes a resounding statement that even Native Hawaiians 
can't be assimilated into a Western society. I disagree. It is a 
fundamental statement that goes to the heart of what it means to be an 
American. If, after all these years, Native Hawaiians have to be 
tribalized in order to function in a modern society, all Americans then 
must, by the identical logic, be Balkanized.
  Mr. Speaker, the philosophy is wrong underneath this. However good 
the thoughts are, Americans should be assimilated, not subdivided. We 
should not be pitted against each other, and Americans should not have 
certain assets designated to them because of the ancestry that they 
claim. We should be all Americans under one flag.
  Mr. RAHALL. Mr. Speaker, we're ready to close when the other side is. 
Is the gentleman from Washington ready to close?
  Mr. HASTINGS of Washington. If the gentleman's the last speaker, then 
I am the last speaker on my side. I yield myself the balance of the 
time, Mr. Speaker.
  The SPEAKER pro tempore. The gentleman from Washington is recognized 
for 1 minute.
  Mr. HASTINGS of Washington. Mr. Speaker, just let me kind of 
summarize some of the overreaching debate that we've had here today.
  This issue has been around this Congress for over 10 years, and this 
issue has had broad support within the State of Hawaii, Mr. Speaker, 
for over 10 years. And the underlying bill, before we will vote on the 
substitute, the underlying bill has broad support in the State of 
Hawaii.
  But now we are going to have an amendment that was not written in 
public, and, in fact, as I mentioned in my earlier remarks, Governor 
Lingle is opposed to this approach on this bill, even though she agrees 
wholeheartedly with the issue of recognition for Native Hawaiians.
  So, Mr. Speaker, I take everybody's word that's involved in this that 
it will be worked out to everybody's satisfaction. But, Mr. Speaker, 
why should we, on the floor of the House----
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. HASTINGS of Washington. With that, Mr. Speaker, I just urge my 
colleagues to vote against the substitute. I'll talk about that later.
  Mr. RAHALL. Mr. Speaker, I'm very happy to yield the balance of our 
time to the gentleman from Hawaii (Mr. Abercrombie).
  Mr. ABERCROMBIE. Mr. Speaker, I want to thank all my colleagues here 
today, and I want to thank those especially who have risen in 
opposition. This is what our democracy is all about. My only regret in 
extending my aloha to those who may not feel able to vote for the bill 
today is that you have not had an opportunity, perhaps, to visit with, 
to understand, and to comprehend what it means to be a Native Hawaiian.
  It is, of course, very easy for someone to say well, how can you do 
that; you came from somewhere else.
  I was born and raised just outside Buffalo, New York. I came to 
Hawaii some 50 years ago, with statehood, given the opportunity to go 
to the University of Hawaii as a graduate teaching assistant. And the 
first thing that happened to me as I came that great distance, across 
the continent and across the ocean, then in a Pan American Clipper, it 
took 10 hours just to get from the coast to Hawaii. And when I took 
that first breath of Hawaiian air and saw the gorgeous curves of the 
island of Oahu, Diamondhead, Waikiki, and the first evening, taken to 
Manoa Valley, where I now reside, it was as if destiny had called.
  And the first contact that I had was with my Chinese Hawaiian friend, 
Solomon Lu, God rest his soul, whose family took me in and treated me 
as one of their own. And that's what Hawaii is all about.
  Mr. Speaker, this is not about race. This is about the aloha spirit. 
This is about the rainbow State of Hawaii. This is about Native 
Hawaiians who give us the host culture and the fundamental sense of who 
we are as human beings. And the diversity that defines us in Hawaii 
that does not divide us is the kind of diversity and definition we need 
in this House of Representatives, that we need in the United States of 
America.
  This is Hawaii's gift to the United States. It is its gift to the 
world, the spirit of aloha. And in that same spirit of aloha, I ask for 
a vote favorably on behalf of the Native Hawaiian recognition bill.
  Mr. KILDEE. Mr. Speaker, today I rise in strong support of H.R. 2314, 
the Native Hawaiian Government Reorganization Act of 2009.
  I want to thank my dear friend and colleague Congressman Neil 
Abercrombie of Hawaii who introduced this legislation. As cochair of 
the Native American Caucus, I have had the privilege of working 
alongside him over the years to fight for a strong agenda for our 
Native communities.
  I applaud him for his work on this legislation that will finally 
reaffirm the inherent sovereignty of the Native Hawaiian people. His 
dedication over the years should be commended and his service and 
friendship will be greatly missed.
  Mr. Speaker, this legislation will once and for all clarify the 
relationship between Native Hawaiians and the United States Government.
  Congress has passed over 150 statutes addressing the needs of Native 
Hawaiians. In 1993, Congress passed an apology bill acknowledging the 
role of the Unites States Government in the overthrow of the Hawaiian 
Nation in 1893. That bill recognized that the Native Hawaiians never 
directly relinquished their inherent sovereignty.
  Mr. Speaker, H.R. 2314, will finally provide for the reorganization 
of a Native Hawaiian Government and provides for Federal recognition of 
the Native Hawaiians.
  It is long past time that we clarify that status of Native Hawaiians 
in this country. I strongly urge my colleagues to support this 
important legislation for Native Hawaiians.
  Ms. BORDALLO. Mr. Speaker, I rise in strong support of H.R. 2314, 
legislation that has been championed by the Senators from the State of 
Hawaii in the other body and our colleagues in the House of 
Representatives representing the Aloha State. Those of us who are 
privileged to serve on the Committee on Natural Resources with our 
colleague, the distinguished gentleman from Hawaii, Mr. Abercrombie, 
have witnessed his tireless efforts on behalf of preserving Native 
Hawaiian culture and in improving the federal relationship with the 
Native Hawaiian people. His passion and deep resolve on the issues 
important to his State and our country, as well as working class 
families, is revered and respected. It is fitting that the House take 
up this legislation during his final days of service in this Congress, 
and I want to emphasize on behalf of

[[Page 1652]]

the people of Guam, who I represent, my support for its swift passage 
and enactment.
  This is an indigenous peoples issue, and the indigenous peoples of 
the offshore territories are especially sensitive to the situation at-
hand with regard to Native Hawaiians. Our governance system must be 
devised and shaped to respect their culture and to allow for their 
needs to be adequately addressed. I ask Members to recall the history 
of the annexation of their islands under the U.S. Flag and the 
overthrow of their Kingdom, for which Congress has previously 
recognized and extended an apology. There are unique historical 
circumstances which give rise to this debate and to this legislation. 
We have heard today the passionate and thoughtfully expressed appeals 
for our favorable action on the question of passage before us. We 
should be moved not only by the gravity of this debate, but also by the 
impartial review of the facts before us and because of what this means 
for our country and our obligations as legislators.
  The native people of the Hawaiian Islands deserve no less than our 
resolve to accord them due legal rights and protections consistent with 
our national trust and obligation to native peoples of the lands for 
which the U.S. Flag now flies. Through passage of H.R. 2314 we will 
affirm a political relationship between our national Government 
directly with the native people of these beautiful islands. It is a 
relationship whose formation in the construct proposed by the 
legislation is entirely fitting and appropriate in the context of case 
law and precedent. It is merely because of historical circumstances 
that we are called to action now, 50 years after statehood. I support 
the substitute amendment, and the purpose of the underlying bill. I 
wish our colleague, Mr. Abercrombie, the best in all of his future 
endeavors and thank him for his service in this institution and commend 
him for his work on this important legislation. I urge passage of H.R. 
2314.
  Mr. HONDA. Mr. Speaker, I rise today to express my support for H.R. 
2314, the Native Hawaiian Government Reorganization Act of 2009. 
Passage of this legislation is a top priority of the Congressional 
Asian Pacific American Caucus, which I currently chair.
  I commend Representative Neil Abercrombie, sponsor of the bill, and 
the House Committee on Natural Resources for recognizing the importance 
of self-determination to the Native Hawaiian people.
  In 1893, the monarchy of the Kingdom of Hawai'i was overthrown by 
agents of the United States. This has created wounds and issues that 
have never been addressed or resolved. The United States took an 
important first step in reconciling this part of history by passing a 
resolution which acknowledged the overthrow of the Kingdom of Hawai'i 
and offered an apology to Native Hawaiians.
  While these are laudable efforts, H.R. 2314 would continue the 
reconciliation and healing process by providing Native Hawaiians the 
same right of self governance and self determination that is afforded 
to other indigenous peoples. Since Hawaii was annexed as a territory, 
the United States has treated Native Hawaiians in a manner similar to 
that of American Indians and Alaska Natives. This bill would formalize 
that relationship and establish parity in federal policies towards all 
of our indigenous peoples.
  I urge all of my colleagues to support H.R. 2314 and afford Native 
Hawaiians the opportunity for self determination and self governance.
  Mr. ABERCROMBIE. Mr. Speaker, I rise today to show further support 
for H.R. 2314, the Native Hawaiian Government Reorganization Act of 
2009 and would like to submit for the Record a letter of support from 
the Honorable Calvin Say, Speaker for the House of Representatives in 
the Hawaii State Legislature.

                                                  State of Hawaii,


                                     House of Representatives,

                                  Honolulu, HI, February 19, 2010.
       Aloha,
       I write to express my support for you, the Hawaii 
     Congressional Delegation, in your efforts to pass the Native 
     Hawaiian Government Reorganization Act.
       The Native Hawaiian people have sought passage of this bill 
     for ten years. The Hawaii State Legislature, which serves as 
     the representative voice of Hawaii's people, has demonstrated 
     continued commitment to Native Hawaiian self-governance and 
     self-determination by unanimously affirming three separate 
     resolutions supporting federal recognition of Native 
     Hawaiians.
       Thank you for creating an atmosphere of dialogue with the 
     various stakeholders. I appreciate your diligence and 
     openness in working with the state administration and 
     community constituencies to address the best approaches 
     offered. I trust your judgment in this matter, and am 
     confident that through your careful and thoughtful 
     deliberations, we will have a measure that is worthy of the 
     goals to which we have all aspired over the last ten years.
       I believe that the people of Hawaii recognize it is time to 
     deliver a fair process for Native Hawaiians to resolve 
     longstanding concerns in their community as other Native 
     peoples have done. Federal recognition is an essential 
     component in advancing the social and economic condition of 
     Native peoples. To deny Native Hawaiians the rights of self-
     determination and self-governance as accorded to other Native 
     peoples goes against the very principles of justice and 
     fairness on which our country was founded.
       The Native Hawaiian Government Reorganization Act provides 
     an empowering and stable structure on which Native Hawaiians 
     can build a prosperous future for themselves and for our 
     state. Both our identity and the economic well-being of our 
     state are very much intertwined with the well-being of the 
     indigenous peoples of our island home. Effectuating a 
     balanced process that will bring clarity to this issue is the 
     right thing to do for our state, Native Hawaiians and all of 
     the citizens of Hawaii.
           Sincerely,
                                                  Calvin K.Y. Say,
                                             Speaker of the House.

  Ms. RICHARDSON. Mr. Speaker, as a member of the Native American 
Caucus, I rise today in strong support of H.R. 2314, the Native 
Hawaiian Government Reorganization Act, which will formally extend the 
federal policy of self-determination and self-governance to Native 
Hawaiians.
  I would like to acknowledge Speaker Pelosi, Majority Leader Reid, and 
Chairman Rahall for their leadership in bringing this milestone bill to 
the floor. I would also like to thank my colleague Congressman Akaka, 
the author of this legislation, who worked so hard for so many years to 
give Native Hawaiians the opportunity for self governance.
  Mr. Speaker, the Native Hawaiian Government Reorganization Act 
provides Native Hawaiians with an opportunity for self determination 
and cultural preservation, while empowering them to be an equal partner 
with the state and federal government. They will finally be on equal 
footing in federal policies toward American Indians, Alaska Natives, 
and Native Hawaiians.
  I am pleased to champion H.R. 2314, which provides the self governing 
opportunities that have been denied to this community for so long. 
Native Hawaiians should have the same opportunity for cultural 
preservation and self-determination as indigenous people on the 
mainland U.S. Just to be clear, this bill does not recognize a Native 
Hawaiian government upon passage, nor exempt a Native Hawaiian 
government from any provision of the U.S. Constitution, Federal law, or 
taxation.
  Mr. Speaker, I support this bill because it will finally extend the 
federal policy of recognition to Native Hawaiians. This legislation is 
yet another example of how Congress is responding to calls for change 
in America.
  Mr. Speaker, I urge my colleagues to join me in supporting H.R. 2314.
  Ms. HIRONO. Mr. Speaker, I rise today to provide additional remarks 
on H.R. 2314, the Native Hawaiian Government Reorganization Act of 
2009, a bill the House passed with a clear majority vote of 245-164 on 
February 23, 2010.
  At the end of the 18th century, King Kamehameha I united the separate 
island chiefdoms under one Hawaiian monarchy, which was recognized by 
the United States. This unified Native Hawaiian self-rule continued 
through most of the 19th century, with Native Hawaiians 
``constitut[ing] the overwhelming majority of the political community 
that participated in decisionmaking in the Kingdom,'' (Jon M. Van Dyke, 
Population, Voting, and Citizenship in the Kingdom of Hawai'i, 28 U. 
Haw. L. Rev. 81, 81 (2005)), and came to an end only when, in 1893, 
commercial interests overthrew the Hawaiian monarchy with the support 
of the U.S. government.
  Even after the overthrow of the Hawaiian monarchy, Native Hawaiians 
have continued to maintain their separate identity as a single 
distinctly political community through cultural, social, and political 
institutions, and through efforts to develop programs to provide 
governmental services to native Hawaiians. For example, the Hawaiian 
Protective Association--a political organization with by-laws and a 
constitution that sought to maintain unity among Native Hawaiians, 
protect Native Hawaiian interests (including by lobbying the 
legislature), and promote the education, health, and economic 
development of Native Hawaiians--was ``organized [in 1914] . . . for 
the sole purpose of protecting the Hawaiian people and of conserving 
and promoting the best things of their tradition'' (Hearing on H.R. 
13500 Before the Committee on Territories, 66th Cong., 3d Sess. 44 
(Dec. 14, 1920) (Rev. Akaiko Akana)).
  To this end, the Association established twelve standing committees, 
published a newspaper, and also developed the framework

[[Page 1653]]

that became the Hawaiian Homes Commission Act (HHCA) in 1921. In 1918, 
Prince Jonah Kuhio Kalanianaole, a U.S. delegate to Congress, founded 
the Hawaiian Civic Clubs, the goal of which was to perpetuate the 
language, history, traditions, music, dances and other cultural 
traditions of Hawaii. The clubs' first project was to secure enactment 
of HHCA and the clubs remain in existence today.
  Efforts to maintain a distinct political community have continued 
into the present day. Examples include the 1988 Native Hawaiian 
Sovereignty Conference; the Kau Inoa organization, which registers 
Native Hawaiians for a movement toward a Native Hawaiian governing 
entity; the efforts to protect the North Western Hawaiian Islands 
because of their cultural and traditional significance; the creation in 
the Hawaii State Constitution of the Office of Hawaiian Affairs, which 
serves as an entity to protect Native Hawaiian interests; and the 
development of traditional justice programs, including a traditional 
method of alternative dispute resolution, ``ho`oponopono,'' which has 
been endorsed by the Native Hawaiian Bar Association.
  Moreover, as the findings of H.R. 2314 explain, the Native Hawaiian 
people have actively maintained native traditions and customary usages 
throughout the Native Hawaiian community and the Federal and State 
courts have continuously recognized the right of the Native Hawaiian 
people to engage in certain customary practices and usages on public 
lands.
  For example, traditional Native Hawaiian fishing and water rights are 
protected by state law (Haw. Rev. Stat. Sec. 174C-101(c) & (d) (2008) 
(stating that certain traditional and customary water rights ``shall 
not be abridged or denied,'' or ``diminished or extinguished,'' by 
provision of the State Water Code)]; id. Sec. 187A-23 (1985) (providing 
for recognition of certain ``vested fishing rights'' linked to 
``ancient regulations'').
  Hawaii courts have also recognized and upheld traditional gathering 
and access rights, (See, e.g., Public Access Shoreline Hawaii v. Hawaii 
County Planning Comm'n, 903 P.2d 1246 (Haw. 1995); State v. Hanapi, 970 
P.2d 485 (Haw. 1998); Kalipi v. Hawaiian Trust Co., 656 P.2d 745 (Haw. 
1982)). Further, Native Hawaiian traditional practices are often 
permitted on federal parks land (See, e.g., 16 U.S.C. Sec. 396d 
(KalokoHonokohau National Historical Park). These practices and legal 
protections further reinforce the Native Hawaiian community's 
continuing status as a distinctly native community.
  Congress has recognized the distinct status of the Native Hawaiians 
by ``extend[ing] services to [them]'' on the basis of that status, 
recognizing that they are ``the native people of a prior-sovereign 
nation with whom the United States has a special political and legal 
relationship.'' (See, e.g., Brief of United States at 4-5 & nn.2-4, 
Rice v. Cayetano, 528 U.S. 495 (2000) (noting that Congress has 
``established special Native Hawaiian programs in the areas of health 
care, education, employment, and loans,'' ``has enacted statutes to 
preserve Native Hawaiian culture, language, and historical sites, and 
``by classifying Native Hawaiians as `Native Americans' under numerous 
federal statutes, . . . has extended to Native Hawaiians many of `the 
same rights and privileges accorded to American Indian, Alaska Native, 
Eskimo, and Aleut communities''' and collecting examples of these 
congressional acts)).
  Other specific examples of Congress' recognition of the distinct 
status of the Native Hawaiians include the Native American Language Act 
of 1990, which recognized and clarified the language rights of American 
Indians, Alaskan Natives, Native Hawaiians, and Pacific Islanders and 
explicitly allowed exceptions to teacher certification requirements for 
instruction in Native American languages; the Native Hawaiian Education 
Act of 1988 (Title IV of the Augustus F. Hawkins-Robert T. Stafford 
Elementary and Secondary School Improvement Amendments of 1988) which 
awarded $30 million annually in competitive education grants to 
programs benefitting native Hawaiian students; the Native Hawaiian 
Assessment Project of 1983; and special education programs specifically 
targeting Native Hawaiian students.
  As the 1993 Apology Resolution and other recent federal statutes 
extending educational and health benefits to Native Hawaiians make 
clear, Congress has found that: (1) Native Hawaiians are ``a distinct 
and unique indigenous people with a historical continuity to the 
original inhabitants of the Hawaiian archipelago,'' 42 U.S.C. 11701(1); 
20 U.S.C. 7902(1); (2) Native Hawaiians exercised sovereignty over the 
Hawaiian Islands, 20 U.S.C. 80q-14(11); (3) the overthrow of the 
Kingdom of Hawaii was ``illegal'' and deprived Native Hawaiians of 
their right to ``self-determination,'' 107 Stat. 1513; (4) the 
government installed after the overthrow ceded 1.8 million acres of 
land to the United States ``without the consent of or compensation to 
the Native Hawaiian people of Hawaii or their sovereign government,'' 
id. at 1512; (5) ``the indigenous Hawaiian people never directly 
relinquished their claims to their inherent sovereignty as a people or 
over their national lands to the United States,'' ibid.; and (6) ``the 
Native Hawaiian people are determined to preserve, develop and transmit 
to future generations their ancestral territory, and their cultural 
identity in accordance with their own spiritual and traditional 
beliefs, customs, practices, language, and social institutions,'' id. 
at 1512-1513.
  Those findings demonstrate that indigenous Hawaiians, like numerous 
tribes in the continental United States, share historical and current 
bonds within their community. Also like tribes in the continental 
United States, Native Hawaiians, pursuant to Acts of Congress, have 
substantial lands set aside for their benefit: 200,000 acres of 
Homestead Act land on which there are thousands of leases to Native 
Hawaiians that furnish homes to tens of thousands of Hawaiians, and a 
20 percent interest in the income generated by 1.2 million acres of 
public trust lands under the Admission Act.
  The fact that the indigenous Hawaiian community does not presently 
have a central operating tribal government recognized by the U.S. 
Department of the Interior does not remove that community from the 
scope of Congress's Indian affairs power. Initially, the Constitution 
does not limit Congress's Indian affairs power to groups with a 
particular government structure. ``[S]ome bands of Indians, for 
example, had little or no tribal organization, while others were highly 
organized.'' (Fishing Vessel Ass'n, 443 U.S. at 664). Nor does the 
Constitution limit Congress's power to groups that continue to exercise 
all aspects of sovereignty. European ``discovery'' and the 
establishment of the United States necessarily diminished certain 
aspects of Indian sovereignty (Johnson, 21 U.S. (8 Wheat.) at 574; 
Cherokee Nation, 30 U.S. (5 Pet.) at 45). Thus, under the Constitution, 
``[f]ederal regulation of Indian tribes . . . is governance of once-
sovereign political communities'' (Antelope, 430 U.S. at 646).
  Moreover, the United States' authority over Indian affairs does not 
emanate simply from the Commerce Clause's reference to ``Indian 
Tribes.'' Rather, the Constitution implicitly gives Congress power to 
manage Indian affairs more generally (Seber, 318 U.S. at 715; Sandoval, 
231 U.S. at 45-46; Kagama, 118 U.S. at 383-384). That power does not 
disintegrate when an indigenous people loses its formal government 
structure. In the first place, the loss of a particular form of 
government is not tantamount to termination of all sovereignty or of 
the prospect that sovereignty might be given expression in the future 
through governmental or other structures. In the case of Native 
Hawaiians, a variety of Native Hawaiian organizations are active in a 
broad range of Native political, cultural, religious, legal, and land-
related matters, and furnish vehicles for the expression of self-
determination over important aspects of Hawaiian affairs, and thus 
confirms that Native Hawaiians constitute a present-day ``political'' 
community (Cf. 25 C.F.R. 83.7(c)).
  Further, the Supreme Court has made clear that a central operating 
tribal government is not a predicate for legislation on behalf of 
indigenous people. For example, in John, 437 U.S. at 634, the Court 
upheld the power of Congress to provide for a group of Mississippi 
Choctaw Indians that did not have a federally recognized tribal 
government. The United States had entered into a treaty under which the 
Choctaw Indians would leave Mississippi by 1833. In the 1890s, however, 
the United States became aware that a group of Choctaws had not left 
Mississippi. Even though the United States did not regard that 
remaining group as members of a federally recognized tribe, it began to 
provide services and land to individual Choctaws in Mississippi.
  In 1939, Congress declared that the lands that had been purchased for 
individual Choctaws would be held in trust for Choctaw Indians of one-
half or more Indian blood, resident in Mississippi, and in 1944, 
Congress made those lands a reservation. Finally, in 1945, Mississippi 
Choctaws of one-half or more Indian blood adopted a constitution and 
bylaws, which were then approved by the appropriate federal officials.
  Against that background, Mississippi argued that Congress lacked 
constitutional authority to establish federal criminal jurisdiction in 
the Choctaw Reservation (John, 437 U.S. at 652). The U.S. Supreme Court 
rejected that argument, explaining: ``[I]n view of the elaborate 
history of relations between the Mississippi Choctaws and the United 
States, we do not agree that Congress and the Executive Branch have 
less power to deal with the affairs of the Mississippi Choctaws than 
with the

[[Page 1654]]

affairs of other Indian groups. Neither the fact that the Choctaws in 
Mississippi are merely a remnant of a larger group of Indians, long ago 
removed from Mississippi, nor the fact that federal supervision over 
them has not been continuous, destroys the federal power to deal with 
them.''
  I would like to take this opportunity to provide clarification on the 
legislative intent of H.R. 2314, particularly for Sections 2, 3, 4, 5, 
7, 8, and 9. My remarks for Sections 3 and 9 are supplementary to the 
remarks previously made by Congressman Abercrombie.


                            SEC. 2. FINDINGS

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


                          SEC. 3. DEFINITIONS

  Congressman Abercrombie, the bill's chief sponsor, has extensively 
discussed this section of the bill. To supplement his remarks, I would 
like to clarify that Kuleana lands are parcels of land granted to 
Native Hawaiian tenant farmers between 1850 and 1855. In 1848, in what 
is known as the Great Mahele, King Kamehameha III divided up land among 
the Kingdom, high-ranking chiefs, and the territorial government, 
``subject to the rights of the native tenants (2 Rev. Laws Haw. 2152 
(1925)).
  The Kuleana Act of August 6, 1850, provided a process by which native 
tenants who had occupied and improved the land could apply to the Land 
Commission for a royal patent and obtain fee title to those parcels of 
land (Jon J. Chinen, The Great Mahele: Hawaii's Land Division at 29, 31 
(1958)). Approximately 28,600 acres of land were awarded under the 
Kuleana Act (U.S. Departments of Interior and Justice, From Mauka to 
Makai: The River of Justice Must Flow Freely, at 24 (2000)).
  Also, it should be noted that in its tribal acknowledgment process, 
the U.S. Department of the Interior has repeatedly relied on 
participation in community organizations as an important indicator of 
the existence of a distinct community. Community activities that the 
Department has cited in support of the existence of a community include 
churches, organizations devoted to management of group cemeteries, the 
existence of organized social functions or collective economic 
activity, and organized participation in political activities and 
debate (Branch of Acknowledgment and Research, Acknowledgment Precedent 
Manual at 26-32 (2002)).
  For example, in concluding that it was appropriate to acknowledge the 
Jena Band of Choctaw Indians as a sovereign Tribe, the Department 
cited, among other considerations, the Tribe's collective maintenance 
of a cemetery and associated traditional practices, and the existence 
of a Tribal organization that ``conducts Choctaw language and history 
classes at the tribal center after school hours and during the summer'' 
(Proposed Finding for Federal Acknowledgment of the Jena Band of 
Choctaw Indians, 59 Fed. Reg. 54,496 (Oct. 31, 1994); see also 60 Fed. 
Reg. 28,480 (May 31, 1995) (final acknowledgment)). Likewise, the 
ability of leaders to organize a community to address a particular 
issue has been cited as evidence of the existence of internal political 
organization, another criterion for acknowledgment. For example, the 
Acknowledgment Precedent Manual cites the ability of a Narragansett 
leader to organize opposition to the draining of a cedar swamp as 
evidence supporting acknowledgment of that group ((Branch of 
Acknowledgment and Research, Acknowledgment Precedent Manual at 40 
(2002)).


                SEC. 4. UNITED STATES POLICY AND PURPOSE

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


       SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS

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


      SEC. 7. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE

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


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

  Federal recognition of a Native Hawaiian governing entity does not 
occur immediately upon enactment of the bill. Only after the 
certification requirements described in section 8(c)(4) are met would 
the United States reaffirm its special political and legal relationship 
with the Native Hawaiian governing entity, and extend federal 
recognition to the Native Hawaiian governing entity. Sec. 8(c)(6).
  Section 8 sets out the process for the reorganization of the single 
Native Hawaiian governing entity. As previously discussed, Congress has 
a long history of enacting such legislation under its Indian affairs 
power. The process in H.R. 2314 for recognizing a Native Hawaiian self-
governing entity is analogous to the process established by prior 
tribal reorganization legislation, and also to the process by which the 
United States recognizes Indian tribes.
  For example, H.R. 2314 would establish a ``roll of Native Hawaiian 
constituents'' that would define initial membership in the Native 
Hawaiian self-governing community based on lineal descent and continued 
connection to the Native Hawaiian community and Native Hawaiian lands. 
Prior tribal restoration acts have similarly relied on an initial roll 
in determining eligibility to participate in tribal reorganization 
elections (See, e.g., 25 U.S.C. Sec. 711b(a) & (b)).
  Current federal regulations similarly require newly recognized tribes 
to submit a ``base roll'' of members, and these rolls can be based in 
part on rolls prepared by the Department of the Interior for purposes 
of federal allotments (See 25 CFR Sec. Sec. 83.7(e)(1)(i), 83.12(b); 
see also 25 U.S.C. Sec. 476(a) (``Indian Reorganization Act of 1934'') 
(providing that Indian Tribes ``shall have the right to organize for 
its common welfare, and may adopt an appropriate constitution and 
bylaws, which shall become effective when ratified by a majority vote 
of the adult members of the tribe . . . at a special election 
authorized and called by the Secretary of the Interior under such rules 
and regulations as he may prescribe'')).
  Section 8 goes on to provide for verification of eligibility by a 
Commission established by the Secretary of the Interior, and an initial 
election for members of a Native Hawaiian Interim Governing Council 
through a series of meetings organized by the Commission in

[[Page 1655]]

consultation with the Secretary. It also provides that the Council, 
after developing organic governing documents, shall submit them to the 
Secretary for certification. These procedures closely track the 
procedures set forth in previous reorganization legislation enacted 
with respect to Indian tribes (See, e.g., 25 U.S.C. Sec. 711a et seq.).
  In general, Section 8 calls for the federal government to play a 
relatively minor role in setting the rules for the election of officers 
of the Native Hawaiian governing entity. In particular, while the 
federally created Commission will call an initial meeting for persons 
on the roll, it is these roll members who will determine the criteria 
for candidates to serve on the Council, determine the structure of the 
Council, and elect its members. The degree of federal involvement 
contemplated by H.R. 2314 is thus consistent with the historical role 
Congress has played in assisting Indian tribes in reorganizing 
politically (See 25 U.S.C. Sec. 476(a) (noting that special elections 
for ratifying tribal constitutions and bylaws may be ``authorized and 
called by the Secretary of the Interior under such rules and 
regulations as he may prescribe''); 25 U.S.C. Sec. 711a et seq).


                       Section 8(b). Commission.

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


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

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


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

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

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