[House Report 107-140]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    107-140

======================================================================



 
            UNITED STATES RELATIONSHIP WITH NATIVE HAWAIIANS

                                _______
                                

 July 16, 2001.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Hansen, from the Committee on Resources, submitted the following

                              R E P O R T

                        [To accompany H.R. 617]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 617) to express the policy of the United States regarding 
the United States relationship with Native Hawaiians, to 
provide a process for the reorganization of a Native Hawaiian 
government and the recognition by the United States of the 
Native Hawaiian government, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. FINDINGS.

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

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Aboriginal, indigenous, native people.--The term 
        ``aboriginal, indigenous, native people'' means those people 
        whom Congress has recognized as the original inhabitants of the 
        lands and who exercised sovereignty prior to European contact 
        in the areas that later became part of the United States.
          (2) Apology resolution.--The term ``Apology Resolution'' 
        means Public Law 103-150 (107 Stat. 1510), a joint resolution 
        extending an apology to Native Hawaiians on behalf of the 
        United States for the participation of agents of the United 
        States in the January 17, 1893 overthrow of the Kingdom of 
        Hawaii.
          (3) Ceded lands.--The term ``ceded lands'' means those lands 
        which were ceded to the United States by the Republic of Hawaii 
        under the Joint Resolution to provide for annexing the Hawaiian 
        Islands to the United States of July 7, 1898 (30 Stat. 750), 
        and which were later transferred to the State of Hawaii in the 
        Act entitled ``An Act to provide for the admission of the State 
        of Hawaii into the Union'' approved March 18, 1959 (Public Law 
        86-3; 73 Stat. 4).
          (4) Indigenous, native people.--The term ``indigenous, native 
        people'' means the lineal descendants of the aboriginal, 
        indigenous, native people of the United States.
          (5) Interagency coordinating group.--The term ``Interagency 
        Coordinating Group'' means the Native Hawaiian Interagency 
        Coordinating Group established under section 5.
          (6) Native hawaiian.--
                  (A) Prior to the recognition by the United States of 
                the Native Hawaiian governing entity, the term ``Native 
                Hawaiian'' means the indigenous, native people of 
                Hawaii who are the direct lineal descendants of the 
                aboriginal, indigenous, native people who resided in 
                the islands that now comprise the State of Hawaii on or 
                before January 1, 1893, and who occupied and exercised 
                sovereignty in the Hawaiian archipelago, including the 
                area that now constitutes the State of Hawaii, and 
                includes all Native Hawaiians who were eligible in 1921 
                for the programs authorized by the Hawaiian Homes 
                Commission Act (42 Stat. 108, chapter 42) and their 
                lineal descendants.
                  (B) Following the recognition by the United States of 
                the Native Hawaiian governing entity, the term ``Native 
                Hawaiian'' shall have the meaning given to such term in 
                the organic governing documents of the Native Hawaiian 
                governing entity.
          (7) Native hawaiian governing entity.--The term ``Native 
        Hawaiian governing entity'' means the governing entity 
        organized by the Native Hawaiian people.
          (8) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.

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

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

  (a) In General.--There is established within the Office of the 
Secretary the United States Office for Native Hawaiian Relations.
  (b) Duties of the Office.--The United States Office for Native 
Hawaiian Relations shall--
          (1) effectuate and coordinate the trust relationship between 
        the Native Hawaiian people and the United States, and upon the 
        recognition of the Native Hawaiian governing entity by the 
        United States, between the Native Hawaiian governing entity and 
        the United States through the Secretary, and with all other 
        Federal agencies;
          (2) continue the process of reconciliation with the Native 
        Hawaiian people, and upon the recognition of the Native 
        Hawaiian governing entity by the United States, continue the 
        process of reconciliation with the Native Hawaiian governing 
        entity;
          (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 prior to 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 with relevant agencies of 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 existing 
        Federal statutes or regulations promulgated under the authority 
        of Federal law.

SEC. 5. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.

  (a) Establishment.--In recognition of the fact 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 on Native Hawaiian resources, rights, or lands; and
          (2) the United States Office for Native Hawaiian Relations 
        established under section 4.
  (c) Lead Agency.--The Department of the Interior shall serve as the 
lead agency of the Interagency Coordinating Group, and meetings of the 
Interagency Coordinating Group shall be convened by the lead agency.
  (d) Duties.--The responsibilities of the Interagency Coordinating 
Group shall be--
          (1) the coordination of Federal programs and policies that 
        affect Native Hawaiians or actions by any agency or agencies of 
        the Federal Government which may significantly or uniquely 
        impact on Native Hawaiian resources, rights, or lands;
          (2) to assure that each Federal agency develops a policy on 
        consultation with the Native Hawaiian people, and upon 
        recognition of the Native Hawaiian governing entity by the 
        United States, consultation with the Native Hawaiian governing 
        entity; and
          (3) to assure the participation of each Federal agency in the 
        development of the report to Congress authorized in section 
        4(b)(5).

SEC. 6. PROCESS FOR THE RECOGNITION OF THE NATIVE HAWAIIAN GOVERNING 
                    ENTITY.

  (a) Recognition of the Native Hawaiian Governing Entity.--The right 
of the Native Hawaiian people to organize for their common welfare and 
to adopt appropriate organic governing documents is hereby recognized 
by the United States.
  (b) Process for Recognition.--
          (1) Submittal of organic governing documents.--Following the 
        organization of the Native Hawaiian governing entity, the 
        adoption of organic governing documents, and the election of 
        officers of the Native Hawaiian governing entity, the duly 
        elected officers of the Native Hawaiian governing entity shall 
        submit the organic governing documents of the Native Hawaiian 
        governing entity to the Secretary.
          (2) Certifications.--
                  (A) In general.--Within 90 days of the date that the 
                duly elected officers of the Native Hawaiian governing 
                entity submit 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 
                        citizens of the Native Hawaiian governing 
                        entity;
                          (iii) provide for the exercise of 
                        governmental authorities by the Native Hawaiian 
                        governing entity;
                          (iv) provide for the Native Hawaiian 
                        governing entity to negotiate with Federal, 
                        State, and local governments, and other 
                        entities;
                          (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 subject to the 
                        authority of the Native Hawaiian governing 
                        entity, and ensure that the Native Hawaiian 
                        governing entity exercises its authority 
                        consistent with the requirements of section 202 
                        of the Act of April 11, 1968 (25 U.S.C. 1302); 
                        and
                          (vii) are consistent with applicable Federal 
                        law and the special trust relationship between 
                        the United States and the indigenous native 
                        people of the United States.
                  (B) By the secretary.--Within 90 days of the date 
                that the duly elected officers of the Native Hawaiian 
                governing entity submit the organic governing documents 
                to the Secretary, the Secretary shall certify that the 
                State of Hawaii supports the recognition of the Native 
                Hawaiian governing entity by the United States as 
                evidenced by a resolution or act of the Hawaii State 
                legislature.
                  (C) Resubmission in case of noncompliance.--
                          (i) Resubmission by the secretary.--If the 
                        Secretary determines that the organic governing 
                        documents do not address the criteria described 
                        in subparagraph (A) or that the organic 
                        governing documents, or any part thereof, are 
                        not consistent with other applicable Federal 
                        law, the Secretary shall resubmit the organic 
                        governing documents to the duly elected 
                        officers of the Native Hawaiian governing 
                        entity along with a justification for each of 
                        the Secretary's findings as to why the 
                        provisions are not consistent with such law.
                          (ii) Amendment and resubmission by the native 
                        hawaiian governing entity.--If the organic 
                        governing documents are resubmitted to the duly 
                        elected officers of the Native Hawaiian 
                        governing entity by the Secretary under clause 
                        (i), the duly elected officers of the Native 
                        Hawaiian governing entity shall--
                                  (I) amend the organic governing 
                                documents to ensure that the documents 
                                comply with applicable Federal law and 
                                address the criteria described in 
                                subparagraph (A); and
                                  (II) resubmit the amended organic 
                                governing documents to the Secretary 
                                for certification in accordance with 
                                the requirements of this paragraph.
                  (D) Certifications deemed made.--The certifications 
                authorized in subparagraph (A) shall be deemed to have 
                been made if the Secretary has not acted within 90 days 
                of the date that the duly elected officers of the 
                Native Hawaiian governing entity have submitted the 
                organic governing documents of the Native Hawaiian 
                governing entity to the Secretary.
          (3) Federal recognition.--Notwithstanding any other provision 
        of law, upon the election of the officers of the Native 
        Hawaiian governing entity and the certifications by the 
        Secretary required under paragraph (2), the United States 
        hereby extends Federal recognition to the Native Hawaiian 
        governing entity as the representative governing body of the 
        Native Hawaiian people.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

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

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

  (a) Reaffirmation.--The delegation by the United States of authority 
to the State of Hawaii to address the conditions of 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. 5) is hereby 
reaffirmed.
  (b) Negotiations.--Upon the Federal recognition of the Native 
Hawaiian governing entity by the United States, the United States is 
authorized to negotiate and enter into an agreement with the State of 
Hawaii and the Native Hawaiian governing entity regarding the transfer 
of lands, resources, and assets dedicated to Native Hawaiian use to the 
Native Hawaiian governing entity. Nothing in this Act is intended to 
serve as a settlement of any claims against the United States.

SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

  (a) Indian Gaming Regulatory Act.--Nothing contained in this Act 
shall be construed as an authorization for the Native Hawaiian 
governing entity to conduct gaming activities under the authority of 
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
  (b) Bureau of Indian Affairs.--Nothing contained in this Act shall be 
construed as an authorization for eligibility to participate in any 
programs and services provided by the Bureau of Indian Affairs for any 
persons not otherwise eligible for such programs or services.

SEC. 10. SEVERABILITY.

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

                          PURPOSE OF THE BILL

    The purpose of H.R. 617 is to express the policy of the 
United States regarding the United States relationship with 
Native Hawaiians, to provide a process for the reorganization 
of a Native Hawaiian government and the recognition by the 
United States of the Native Hawaiian government, and for other 
purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    On January 17, 1893, with the assistance of the United 
States Minister and U.S. marines, the government of the Kingdom 
of Hawaii was overthrown. One hundred years later, a resolution 
extending an apology on behalf of the United States to Native 
Hawaiians for the illegal overthrow of the Native Hawaiian 
government and calling for a reconciliation of the relationship 
between the United States and Native Hawaiians was enacted into 
law (Public Law 103-150). The Apology Resolution acknowledges 
that the overthrow of the Kingdom of Hawaii occurred with the 
active participation of agents and citizens of the United 
States and further acknowledges that the Native Hawaiian people 
never directly relinquished their claims to their inherent 
sovereignty as a people over their national lands to the United 
States, either through their government or through a plebiscite 
or referendum.
    In December 1999, under President Clinton, the U.S. 
Departments of the Interior and Justice initiated a process of 
reconciliation in response to the Apology Resolution by 
conducting meetings in Native Hawaiian communities on each of 
the principal islands in the State of Hawaii and culminating in 
two days of open hearings. In each setting, members of the 
Native Hawaiian community identified what they believe are the 
necessary elements of a process to provide for the 
reconciliation of the relationship between the United States 
and the Native Hawaiian people. A draft report, entitled ``From 
Mauka to Makai: The River of Justice Must Flow Freely'', was 
issued by the two departments on October 23, 2000. The 
principal recommendation contained in the Clinton 
Administration's report is set forth below:

          Recommendation 1. It is evident from the 
        documentation, statements, and views received during 
        the reconciliation process undertaken by Interior and 
        Justice pursuant to Public Law 103-150 (1993), that the 
        Native Hawaiian people continue to maintain a distinct 
        community and certain governmental structures and they 
        desire to increase their control over their own affairs 
        and institutions. As a matter of justice and equity, 
        this report recommends that the Native Hawaiian people 
        should have self-determination over their own affairs 
        within the framework of Federal law, as do Native 
        American tribes. For generations, the United States has 
        recognized the rights and promoted the welfare of 
        Native Hawaiians as an indigenous people within our 
        Nation through legislation, administrative action, and 
        policy statements. To safeguard and enhance Native 
        Hawaiian self-determination over their lands, cultural 
        resources, and internal affairs, the Departments 
        believe Congress should enact further legislation to 
        clarify Native Hawaiians' political status and to 
        create a framework for recognizing a government-to-
        government relationship with a representative Native 
        Hawaiian governing body.

    H.R. 617 provides a process for the reorganization of a 
Native Hawaiian governing entity, and upon certification by the 
Secretary of the Interior that the organic governing documents 
of the Native Hawaiian governing entity are consistent with 
federal law and the trust relationship between the United 
States and the indigenous, native people of the United States, 
H.R. 617 provides for the recognition of the Native Hawaiian 
governing entity by the United States for purposes of carrying 
on a government-to-government relationship with the Native 
Hawaiian governing entity.

Office of Hawaiian Affairs

    With the loss of their government in 1893, Native Hawaiians 
have sought to maintain political authority within their 
community. In 1978, the citizens of the State of Hawaii 
recognized the long-standing efforts of the native people to 
give expression to their rights to self-determination and self-
governance by amending the State constitution in an attempt to 
provide for the establishment of a quasi-sovereign State 
agency, the Office of Hawaiian Affairs. The State constitution, 
as amended, provides that the Office is to be governed by nine 
trustees who are Native Hawaiian and who are to be elected by 
Native Hawaiians. The Office administers programs and services 
with revenues derived from lands which were ceded back to the 
State of Hawaii upon its admission into the United States. The 
dedication of these revenues reflects the provisions of the 
1959 Hawaii Admissions Act, which provides that the ceded lands 
and the revenues derived therefrom should be held by the State 
of Hawaii as a public trust for five purposes--one of which is 
the betterment of the conditions of Native Hawaiians. The 
Admissions Act also provided that the new State assumes a trust 
responsibility for approximately 203,500 acres of land that had 
previously been set aside under federal law in 1921 for Native 
Hawaiians in the Hawaiian Homes Commission Act.
    On February 23, 2000, the United States Supreme Court 
issued a ruling in the case of Rice v. Cayetano. The Supreme 
Court held that because the Office of Hawaiian Affairs is an 
agency of the State of Hawaii that is funded in part by 
appropriations made by the State legislature, the election for 
the trustees of the Office of Hawaiian Affairs must be open to 
all citizens of the State of Hawaii who are otherwise eligible 
to vote in statewide elections.
    The nine Native Hawaiian trustees of the Office of Hawaiian 
Affairs subsequently resigned their positions, and an election 
to fill the trustee positions was held on November 7, 2000. All 
citizens of the State of Hawaii who were otherwise eligible to 
vote in statewide elections were entitled to cast their ballots 
for the 97 candidates who registered to run for the Office of 
Hawaiian Affairs trustee positions.
    The native people of Hawaii were thus divested of the 
mechanism that was established under the Hawaii State 
Constitution that, since 1978, has enabled them to give 
expression to their rights as indigenous, native people of the 
United States to self-determination and self-governance. H.R. 
617 is designed to address these developments by providing a 
means underfederal law, consistent with the federal policy of 
self-determination and self-governance for America's indigenous, native 
people, for Native Hawaiians to have a status similar to that of the 
other indigenous, native people of the United States.

                            COMMITTEE ACTION

    H.R. 617 was introduced by Congressman Neil Abercrombie (D-
HI) on February 14, 2001, and was referred to the Committee on 
Resources. On May 16, 2001, the Committee met to consider the 
bill. Congressman Abercrombie offered an amendment in the 
nature of a substitute with mirrored a companion Senate measure 
(S. 746). The amendment was adopted by voice vote, and the 
bill, as amended, was ordered favorably reported to the House 
of Representatives by voice vote.
    During the 106th Congress, Congressman Abercrombie 
introduced H.R. 4904, a predecessor to H.R. 617. Five days of 
joint hearings were held on the bill by the Resources Committee 
and the Senate Indian Affairs Committee in Hawaii from August 
28, 2000, through September 1, 2000. H.R. 4904 was approved by 
the House of Representatives on September 26, 2000. H.R. 4904 
failed to pass the Senate before the sine die adjournment of 
the 106th Congress.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Findings

    This section sets forth Congress' findings. Findings (1) 
through (4) reflect Congress' recognition of Native Hawaiians 
as the native people of the United States and Hawaii. Findings 
(5) through (7) reflect Congress' determination of the need to 
address the conditions of Native Hawaiians through the Hawaiian 
Homes Commission Act of 1920. Findings (8) and (9) reflect 
Congress' establishment of the Ceded Lands Trust as a condition 
of statehood for the State of Hawaii. Finding (10) reflects the 
importance of the Hawaiian Home Lands and Ceded Lands to Native 
Hawaiians as a foundation for the Native Hawaiian community for 
the survival of the Native Hawaiian people. Finding (11) notes 
that Native Hawaiians have maintained other distinctly native 
areas. Findings (12) through (14) reflect the effect of the 
Apology Resolution. Findings (15) through (19) reflect the 
Native Hawaiian community as a ``distinctly'' native community. 
Finding (20) reflects the position of the United States before 
the U.S. Supreme Court in the case of Rice v. Cayetano. 
Findings (21) and (22) reaffirm the special trust relationship 
between the Native Hawaiian people and the United States.

Section 2. Definitions

    This section sets forth definitions of terms used in the 
bill. Defined terms are: Aboriginal, Indigenous, Native People; 
Apology Resolution; Ceded Lands; Indigenous, Native People; 
Interagency Coordinating Group; Native Hawaiian; Native 
Hawaiian Governing Entity; and Secretary.

Section 3. United States Policy and Purpose

    This section reaffirms that Native Hawaiians are an 
aboriginal, indigenous, native people with whom the United 
States has a trust relationship and states Congress' intent to 
provide a process for federal recognition of a Native Hawaiian 
governing entity for purposes of continuing a government-to-
government relationship.

Section 4. Establishment of the United States Office for Native 
        Hawaiian Relations

    This provision authorizes the establishment of the United 
States Office for Native Hawaiian Relations within the Office 
of the Secretary of the Department of the Interior. The United 
States Office for Native Hawaiian Relations is charged with: 
(1) effectuating and coordinating the special trust 
relationship between the Native Hawaiian people and the United 
States; (2) continuing the process of reconciliation; (3) 
conducting meaningful, regular, and appropriate consultation 
with the Native Hawaiian people and Native Hawaiian governing 
entity regarding any actions that may have the potential to 
significantly affect Native Hawaiian resources, rights, or 
lands; (4) consulting with the Native Hawaiian Coordinating 
Group, other federal agencies, and with the State of Hawaii on 
policies, practices, and proposed actions affecting Native 
Hawaiian resources, rights, or lands; and (5) preparing and 
submitting to the Senate Committee on Indian Affairs, Senate 
Committee on Energy and Natural Resources, and House Resources 
Committee an annual report detailing the Interagency 
Coordinating Group's activities regarding the reconciliation 
process, consultation with the Native Hawaiian people, and 
recommendations of necessary changes to existing federal 
statutes.
    The United States Office for Native Hawaiian Relations 
would serve as a liaison between the Native Hawaiian people and 
the United States for the purposes of assisting with the 
process of federal recognition of the Native Hawaiian governing 
entity, continuing the reconciliation process, and ensuring 
proper consultation with the Native Hawaiian people for any 
federal policy impacting Native Hawaiians. The United States 
Office for Native Hawaiian Relations would not assume the 
responsibility or authority for any of the federal programs 
established to address the conditions of Native Hawaiians. All 
federal programs established and administered by federal 
agencies will remain with those agencies.

Section 5. Native Hawaiian Interagency Coordinating Group

    This section recognizes that because 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 a need to establish an 
Interagency Coordinating Group to be composed of officials from 
each federal agency that administers Native Hawaiian programs, 
establishes or implements policies that affect Native 
Hawaiians, or whose actions may significantly or uniquely 
impact on Native Hawaiian resources, rights, or lands. The 
primary responsibility of the Interagency Coordinating Group is 
to coordinate federal policies or actions that affect Native 
Hawaiians or impact Native Hawaiian resources, rights, or 
lands. The Interagency Coordinating Group is also charged with 
assuring that each federal agency developa Native Hawaiian 
consultation policy and participate in the development of the report to 
Congress.

Section 6. Process for the recognition of the Native Hawaiian governing 
        entity

    This section recognizes the right of the Native Hawaiian 
people to organize for their common welfare and to adopt 
appropriate organic governing documents. This section provides 
the process for federal recognition of the Native Hawaiian 
governing entity.
    Upon the organization of the Native Hawaiian governing 
entity, the adoption of organic governing documents, and the 
election of officers of the Native Hawaiian governing entity, 
the duly elected officers of the Native Hawaiian governing 
entity submit the organic governing documents to the Secretary 
of the Interior for certification. Within 90 days of the 
submission of the organic governing documents, the Secretary 
shall certify that the organic governing documents: establish 
the criteria for citizenship in the Native Hawaiian governing 
entity; were adopted by a majority vote of the citizens of the 
Native Hawaiian governing entity; provide for the exercise of 
governmental authorities by the Native Hawaiian governing 
entity; provide for the Native Hawaiian governing entity to 
negotiate with federal, State, and local governments, and other 
entities; 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; provide for the protection of the 
civil rights of the citizens of the Native Hawaiian governing 
entity and those subject to the authority of the Native 
Hawaiian governing entity; and are consistent with applicable 
federal law and the special trust relationship between the 
United States and Native Hawaiians.
    Within 90 days of the submission of the organic governing 
documents, the Secretary shall also certify that the State of 
Hawaii supports the recognition of the Native Hawaiian 
governing entity by the United States as evidenced by a 
resolution or act of the Hawaii State Legislature.
    If the Secretary, after receipt of the organic governing 
documents, determines that the documents are deficient in 
addressing the matters stipulated under Section 6(b)(2)(A)(i) 
through (vii), or determines that any provision of the organic 
governing documents does not comply with any other applicable 
federal law, the Secretary shall return the organic governing 
documents to the Native Hawaiian governing entity. The 
Secretary shall identify to the Native Hawaiian governing 
entity each provision that is determined to be deficient or in 
noncompliance and provide a justification for each finding. The 
Native Hawaiian governing entity is authorized to amend the 
organic governing documents to ensure their compliance with 
this Act and may resubmit the organic governing documents to 
the Secretary for certification.
    The certifications shall be deemed to have been made if the 
Secretary has not acted within 90 days of the date that the 
duly elected officers of the Native Hawaiian governing entity 
have submitted the organic governing documents of the Native 
Hawaiian governing entity to the Secretary.
    Upon election of the Native Hawaiian governing entity's 
officers and the certifications (or deemed certifications) by 
the Secretary, federal recognition is extended to the Native 
Hawaiian governing entity.

Section 7. Authorization of appropriations

    This section authorizes the appropriation of such sums as 
may be necessary to carry out the activities authorized.

Section 8. Reaffirmation of delegation of federal authority; 
        negotiations

    This section reaffirms the United States' delegation of 
authority to the State of Hawaii in the Admissions Act to 
address the conditions of the indigenous, native people of 
Hawaii. Upon federal recognition of the Native Hawaiian 
governing entity, the United States is authorized to negotiate 
with the State of Hawaii and the Native Hawaiian governing 
entity regarding the transfer to the Native Hawaiian governing 
entity of lands, resources and assets dedicated to Native 
Hawaiians.
    This section provides that nothing in this Act is intended 
to serve as a settlement of any claims against the United 
States.

Section 9. Applicability of certain federal laws

    This section states that nothing in this Act shall be 
construed as an authorization for the Native Hawaiian governing 
entity to conduct gaming activities under the authority of the 
Indian Gaming Regulatory Act or for eligibility to participate 
in any programs and services provided by the Bureau of Indian 
Affairs.

Section 10. Severability

    This section provides that should any section or provision 
of this Act be deemed invalid, the remaining sections, 
provisions, and amendments shall continue in full force and 
effect.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to express the policy of the United 
States regarding the United States relationship with Native 
Hawaiians, to provide a process for the reorganization of a 
Native Hawaiian government and the recognition by the United 
States of the Native Hawaiian government, and for other 
purposes.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 23, 2001.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 617, a bill to 
express the policy of the United States regarding the United 
States' relationship with Native Hawaiians, to provide a 
process for the reorganization of a Native Hawaiian government 
and the recognition by the United States of the Native Hawaiian 
government, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Walker (for federal costs), and Marjorie Miller (for the impact 
on state, local, and tribal governments).
            Sincerely,
                                           Steven Lieberman
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 617--A bill to express the policy of the United States regarding 
        the United States' relationship with Native Hawaiians, to 
        provide a process for the reorganization of a Native Hawaiian 
        government and the recognition by the United States of the 
        Native Hawaiian government, and for other purposes

    H.R. 617 would establish a process for a Native Hawaiian 
government to be constituted and recognized by the federal 
government. CBO estimates that implementing H.R. 617 would have 
no significant impact on the federal budget. The bill would not 
affect direct spending or receipts. so pay-as-you-go procedures 
would not apply. H.R. 617 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no costs on state, local, or tribal 
governments. Enactment of this legislation could lead to the 
creation of a new government to represent native Hawaiians. The 
transfer of any lands or other assets to this new government, 
including lands now controlled by the state of Hawaii, would be 
the subject of future negotiations. Similarly, federal payments 
to native Hawaiians following recognition of a Native Hawaiian 
government would depend on future legislation.
    The bill would establish the United States Office for 
Native Hawaiian Affairs within the Department of the Interior 
(DOI) to coordinate services to native Hawaiians. In addition, 
H.R. 617 would establish the Native Hawaiian Interagency 
Coordinating Group to coordinate federal programs and policies 
that affect native Hawaiians. Based on information from DOI, 
CBO expects that the agency would require up to five additional 
employees to implement the bill. Therefore, CBO estimates that 
implementing H.R. 617 would cost less than $500,000 a year, 
subject to the availability of appropriated funds.
    The CBO staff contacts for this estimate are Lanette J. 
Walker (for federal costs), and Marjorie Miller (for the impact 
on state, local, and tribal governments). This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    This bill makes no changes in existing law.

                                  
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