[House Report 108-742]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-742
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NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2004
_______
October 6, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 4282]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 4282) 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 Native Hawaiian governing entity, and for other
purposes, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 4282 is 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 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). What is often now called ``The
Apology Resolution'' acknowledges that the overthrow of the
Kingdom 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 their
government or through a plebiscite or referendum.
In December 1999, the 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, culminating in two days of open hearings. The
resulting draft report was issued on October 23, 2000, by the
two departments and was called ``From Mauka to Makai: The River
of Justice Must Flow Freely.'' 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. Within this report, the
Departments recommended ``that the Native Hawaiian
people should have self-determination over their own
affairs within the framework of Federal law, as do
Native American tribes.'' Further, they stated that
``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. 4282 provides a process for the reorganization of a
Native Hawaiian government for the purpose of carrying on the
government-to-government relationship mentioned in the report
above. In particular, the Secretary of the Interior must
certify that the organic governing documents of the Native
Hawaiian government are consistent with federal law and the
trust relationship between the United States and tribes of the
United States. This certification is important as the Supreme
Court issued a ruling in the case of Rice v. Cayetano wherein
the quasi-sovereign state agency, the Office of Hawaiian
Affairs, was to open the election of its trustees to all of the
citizens of the State of Hawaii who are otherwise eligible to
vote in statewide elections. This, in essence, meant that the
native people of Hawaii were divested of the mechanism that was
established under the Hawaii State Constitution that had
enabled them to give expression to their rights as native
people to self-determination and self-governance.
The current Office of Hawaiian Affairs in Hawaii has
existed since 1978 and will remain relevant with the enactment
of H.R. 4282. This is because 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.
This legislation will continue to reflect the separate
funding authorities that Native Hawaiians have enjoyed since
1910; since this date, Congress has enacted over 160 statutes
designed to address the conditions of Native Hawaiians. Thus
appropriations for Native Hawaiian programs have always been
separately secured and have had no impact on program funding
for American Indians or Alaska Natives.
It is also important to note that some have questioned
whether the reorganization of a Native Hawaiian government
might have implications for gaming that is conducted under the
authority of the Indian Gaming Regulatory Act (IGRA). The scope
of gaming that can be conducted under IGRA is determined by the
law of the State in which the Indian lands are located. The
U.S. Supreme Court has held that State laws which criminally
prohibit certain forms of gaming apply on Indian lands.
Moreover, there are no Indian tribes in the State of Hawaii,
nor are there any Indian reservations or Indian lands. Further,
Hawaii is one of only two States in the Union (along with Utah)
that criminally prohibit all forms of gaming. Accordingly, a
reorganized Native Hawaiian government could not conduct any
form of gaming in the State of Hawaii.
H.R. 4282 is legislation similar to H.R. 617, introduced by
Congressman Neil Abercrombie during the 107th Congress. Similar
legislation was also introduced during previous Congresses. The
Committee, along with the Senate Indian Affairs Committee, held
five days of hearings on this issue during the second session
of the 106th Congress, and in the 107th Congress, H.R. 617 was
reported to the House of Representatives by a voice vote.
COMMITTEE ACTION
H.R. 4282 was introduced on May 5, 2004, by Congressman
Neil Abercrombie (D-HI). The bill was referred to the Committee
on Resources. On September 15, 2004, the Full Resources
Committee met to consider the bill. No amendments were offered
and H.R. 4282 was then ordered favorably reported to the House
of Representatives by unanimous consent.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Cited as the ``Native Hawaiian Government Reorganization
Act of 2004.''
Section 2. 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 cultural 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 3. 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 4. 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 5. 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 6. 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 develop a Native Hawaiian
consultation policy and participate in the development of the
report to Congress.
Section 7. 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.
It is also important to note that one of the changes in
H.R. 4282 from previous versions of this legislation centers on
the creation of a Native Hawaiian Commission that will prepare,
maintain, and certify a roll of Native Hawaiian community
members. Those included on this roll will participate in the
reorganization of the Native Hawaiian governing entity and will
be included in the Native Hawaiian definition in Section 3 (8).
Previously this role was to be certified by the Secretary of
the Interior.
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 8. Reaffirmation of delegation of federal authority;
negotiations; claims
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.
Section 11. Authorization of appropriations
This section authorizes the appropriation of such sums as
may be necessary to carry out the activities authorized.
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:
H.R. 4282--Native Hawaiian Government Reorganization Act of 2004
H.R. 4282 would establish a process for a Native Hawaiian
government to be constituted and recognized by the federal
government. CBO estimates that implementing H.R. 4282 would
cost nearly $1 million annually in fiscal years 2005-2007 and
less than $500,000 in each subsequent year, assuming the
availability of appropriated funds. Enacting the bill would not
affect direct spending or revenues.
H.R. 4282 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.
Enacting this legislation could lead to the creation of a new
government to represent Native Hawaiians. The transfer of any
land or other assets to this new government, including land now
controlled by the state of Hawaii, would be the subject of
future negotiations.
The bill would establish the United States Office for
Native Hawaiian Relations within the Department of the Interior
(DOI) to consult and coordinate the relationship with the
Native Hawaiian governing entity. Based on information from
DOI, CBO expects this office would require up to three full-
time personnel. H.R. 4282 also would establish the Native
Hawaiian Interagency Coordinating Group, consisting of
officials from interested agencies. Finally, the bill would
create a nine-member commission responsible for creating and
certifying a roll of adult Native Hawaiians. Based upon
information from DOI, CBO expects that this commission would
need three years and three full-time staff to complete its
work.
On May 30, 2003, CBO transmitted a cost estimate for S.
344, the Native Hawaiian Recognition Act of 2003, as ordered
reported by the Senate Committee on Indian Affairs, on May 14,
2003. On May 3, 2004, CBO transmitted a cost estimate for S.
344 as ordered reported by the Senate Committee on Indian
Affairs on April 21, 2004. Both versions of S. 344 are similar
to H.R. 4282; however, CBO estimates that implementing H.R.
4282 would have a higher cost because it would authorize the
commission that would be tasked to create and certify a roll of
Native Hawaiians to hire full-time staff and to procure
temporary services.
The CBO staff contacts for this estimate are Mike Waters
(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
If enacted, this bill would make no changes in existing
law.
ADDITIONAL VIEWS
The purpose of H.R. 4282 is to authorize a process for the
reorganization of the Native Hawaiian government and for the
reaffirmation by the United States of the special political and
legal relationship between the United States and the Native
Hawaiian governing entity for purposes of carrying on a
government-to-government relationship with the Native Hawaiian
government. This relationship is legally analogous to the
special relationship that exists between the United States and
Indian tribal governments under the Indian Commerce Clause of
the United States Constitution and other authorities.
However, H.R. 4282 reflects a new paradigm in which the
Native Hawaiian government, the State of Hawai`i, and the
United States will have the flexibility to develop--through a
process of negotiations--a structured framework for the
governmental powers and authorities, including civil and
criminal jurisdiction, that will be exercised by each
government. Thereafter, it is anticipated that the governmental
parties will seek legislation to implement their agreements,
including amendments to existing State and Federal laws, as
well as necessary amendments to the State's constitution. To
this end, the legislation does not import wholesale the
existing body of Federal Indian Law, but instead contemplates
that the governmental parties to these negotiations will shape
their relationships, and their rights and responsibilities, in
a manner that is appropriate to contemporary circumstances in
the State of Hawai`i while remaining within the broad framework
of a government-to-government relationship with the United
States.
Historical background
On January 17, 1863, the government of the Kingdom of
Hawai`i was overthrown by a group of American citizens and
others, who acted with the support of U.S. Minister John
Stephens and a contingent of U.S. Marines from the U.S.S.
Boston. Supporters of this revolutionary movement organized a
government calling itself the Republic of Hawaii, which was
later recognized by the United States as the government of the
Hawaiian Islands. Notwithstanding strong opposition from within
the Native Hawaiian community, officials of the Republic of
Hawai`i successfully sought to have the Hawaiian Islands
annexed by the United States. In August 1898, Congress adopted
the Joint Resolution for Annexing the Hawaiian Islands to the
United States.\1\ Soon thereafter, Congress passed the Hawai`i
Organic Act,\2\ establishing a government for the newly created
Territory of Hawai`i. In 1959, Hawai`i was admitted to the
Union as the Fiftieth State.\3\
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\1\ 30 Stat. 750 (August 12, 1898).
\2\ 31 Stat. 141 (April 30, 1900).
\3\ Hawaii Admission Act, Pub. L. 86-3, 73 Stat. 4 (March 18,
1959).
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One hundred years after the U.S.-supported overthrow of the
Kingdom of Hawai`i, 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.\4\ The Apology
Resolution acknowledges that the overthrow of the Kingdom of
Hawai`i 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 their
government or through a plebiscite or referendum.
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\4\ Pub. L. 103-150, 107 Stat. 1510 (November 23, 1993) (the
``Apology Resolution'').
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Federal legislation on behalf of Native Hawaiians
Since 1910, Congress has enacted into law more than 160
statutes which, in whole or in part, establish programs and
services intended to address the special circumstances of
Native Hawaiians. Congress first explicitly recognized the
existence of a special or trust relationship between the Native
Hawaiian people and the United States with the enactment in
1921 of the Hawaiian Homes Commission Act.\5\
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\5\ 42 Stat. 108 (July 9, 1921).
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Proponents of the Hawaiian Homes Commission Act noted the
decreasing numbers and poor economic status of Native
Hawaiians. Prior to European contact, it was estimated that
there were 400,000 Native Hawaiians in the Hawaiian Islands. By
1919, the Native Hawaiian population had been reduced to
22,600, and many were concluding that the native people of
Hawai`i were a ``dying race,'' and that if they were to be
saved from extinction, they must have the means of regaining
their connection to the land, the `aina. In hearings on the
Hawaiian Homes Commission Act, Secretary of the Interior
Franklin Lane explained the trust relationship on which the
statute was premised: ``One thing that impressed me * * * was
the fact that the natives of the islands who are our wards, I
should say, and for whom in a sense we are trustees, are
falling off rapidly in numbers and many of them are in
poverty.'' \6\
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\6\ H.R. Rep. No. 66-839, at 4 (1920).
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Prince Jonah Kuhio Kalanianaole, the Territory's sole
delegate to Congress, testified before the full U.S. House of
Representatives: ``The Hawaiian race is passing. And if
conditions continue to exist as they do today, this splendid
race of people, my people, will pass from the face of the
earth.'' \7\ Secretary Lane attributed the declining population
to health problems like those faced by the ``Indian in the
United States'' and concluded the Nation must provide similar
remedies.\8\
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\7\ 59 Cong. Rec. 7453 (1920).
\8\ H.R. Rep. No. 66-839, at 5.
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The Hawaiian Homes Commission Act set aside approximately
203,500 acres of public lands (former Crown and Government
lands ceded by the Republic of Hawai`i to the United States
upon Annexation) for homesteading by Native Hawaiians. The Act
provides that the lessee must be a Native Hawaiian, who is
entitled to a lease for a term of ninety-nine years, provided
that the lessee occupies and uses or cultivates the tract
within one year after the lease is entered into. A restriction
on alienation, like those imposed on Indian lands subject to
allotment, was included in the lease. Also like the general
allotment acts affecting Indians, the leases were intended to
encourage rural homesteading so that Native Hawaiians would
leave the urban areas and return to rural subsistence or
commercial farming and ranching. In February, 1923, the
Congress amended the Act to authorize one-half acre residence
lots and to provide for home construction loans. Thereafter,
the demand for residential lots far exceeded the demand for
agricultural or pastoral lots.
In enacting the Hawaiian Homes Commission Act, Congress
compared the legislation to ``previous enactments granting
Indians * * * special privileges in obtaining and using the
public lands.'' \9\ In testimony before Congress, Interior
Secretary land explicitly analogized the relationship between
the United States and Native Hawaiians to the trust
relationship between the United States and other Native
Americans, explaining that special programs for Native
Hawaiians are fully supported by history and ``an extension of
the same idea'' that supports such programs for Indians.\10\
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\9\ H.R. Rep. No. 66-839, at 11 (1920).
\10\ Hearings before the Committee on the Territories, House of
Representatives, 66th Cong., 2d Sess., on Proposed Amendments to the
Organic Act of the Territory of Hawaii, February 3, 4, 5, 7, and 10,
1920, at 129-30 (statement of Secretary Lane that ``[w]e have got the
right to set aside these lands for this particular body of people,
because I think the history of the islands will justify that before any
tribunal in the world,'' and rejecting the argument that legislation
aimed at ``this distinct race'' would be unconstitutional because ``it
would be an extension of the same idea'' as that established in dealing
with Indians); see also id. at 127 (colloquy between Secretary Lane and
Representative Monahan, analogizing status of Native Hawaiians to that
of Indians), and at 167-70 (colloquy between Representative Curry,
Chair of the Committee, and Representatives Dowell, and Humphreys,
making the same analogy and rejecting the objection that ``we have no
government or tribe to deal with here'').
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Congress again recognized the special status of Native
Hawai`ians when Hawai`i gained Statehood in 1959. As a
condition of admission into the Union, section 4 of the Hawai`i
Admission Act required the new State to assume management of
the homesteading program established under the Hawaiian Homes
Commission Act and to adopt that Federal law, as amended, as a
provision of its Constitution. The Admission Act imposed a
public trust on the lands which were ceded to the United States
by the Republic of Hawai`i upon annexation by the United States
in 1898 and which were conveyed to the State of Hawai`i in
trust upon its admission into the Union of States, requiring
the State to manage these lands and any revenues derived from
them, for five specified purposes, one of which was ``the
betterment of the conditions of native Hawai`ians, as defined
in the Hawai`ian Homes Commission Act, 1920, as amended.'' \11\
The Admission Act further provided that the use of these lands
and revenues for any use other than the five specified uses
``shall constitute breach of trust for which suit may be
brought by the United States.'' \12\
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\11\ Hawai`i Admission Act, Sec. 5(f).
\12\ Id.
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The Hawai`i Admission Act provided for explicit delegations
of Federal authority to be assumed by the new State and
mandated that the State act as a trustee for Native Hawai`ians.
The United States did not absolve itself from all further
responsibility in the administration or amendment of the
Hawai`ian Homes Commission Act, nor did it divest itself of an
ongoing role in overseeing the use of ceded lands and the
income or proceeds therefrom. Sections 4 and 5 of the Hawai`i
Admission Act clearly contemplate a continuing Federal role, as
do sections 204 and 223 of the Hawai`ian Homes Commission Act,
which provide that the consent of the Secretary of the Interior
must be obtained for certain exchanges of trust lands and
reserved to Congress the right to amend that Act. The Federal
and State courts have repeatedly concluded that the United
States retains the authority to bring an enforcement action
against the State of Hawai`i for breach of the trust
responsibilities set forth in section 5 of the Admission
Act,\13\ and these responsibilities are enforceable by the
Native Hawai`ian beneficiaries themselves.\14\
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\13\ See e.g., Han v. United States, 45 F.3d 333 (9th Cir. 1995).
\14\ See, e.g., Keaukaha-Panaewa Community Ass'n v. Hawai`ian Homes
Comm'n, 739 F2d 1467 (9th Cir. 1984) (Section 5(f) of the Hawai`i
Admission Act, setting aside lands held in trust under the Hawai`ian
Homes Commission Act, creates a Federal right in the Native Hawai`ian
beneficiaries enforceable prospectively against the State of Hawai`i
under 42 U.S.C. Sec. 1983); Napeahi v, Paty, 921 F.2d 897 (9th Cir.
1990), cert denied, 502 U.S. 901 (1991) (same, concerning lands which
were assets of the land trust created under Section 5(f) of the Hawai`i
Admission Act but which were not Hawai`ian Home Lands).
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Over the last 30 years, Congress has included Native
Hawaiians in numerous Federal statutes designed to address the
conditions of Native Americans, including for example, the
Native American Programs Act of 1974,\15\ the Native American
Housing Assistance and Self-Determination Act,\16\ the National
Museum of the American Indian Act,\17\ the Native American
Languages Act,\18\ the Native American Graves Protection and
Repatriation Act,\19\ and the National Historic Preservation
Act Amendments of 1992,\20\ and has enacted other statutes
dealing with the specific circumstances of Native Hawaiians
such as the Native Hawaiian Study Commission Act,\21\ the
Native Hawaiian Health Care Improvement Act of 1988,\22\ and
the Native Hawaiian Education Act.\23\
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\15\ Pub. L. No. 93-644, Sec. 801, 88 Stat. 2291, 2324 (January 4,
1975).
\16\ Pub. L. No. 106-569, 114 Stat. 2944 (December 27, 2000).
\17\ Pub. L. No. 101-185, 103 Stat. 1336 (November 28, 1989).
\18\ Pub. L. No. 101-477, Sec. Sec. 101-104, 104 Stat. 1152, 1154
(October 30, 1990).
\19\ Pub. L. No. 101-601, 104 Stat. 3048 (November 16, 1990).
\20\ Pub. L. No. 102-575, Sec. Sec. 4002, 4006, 106 Stat. 4600,
4753 (October 30, 1992).
\21\ Pub. L. No. 96-565, Sec. Sec. 301-307, 94 Stat. 3321, 3224-27
(December 22, 1980).
\22\ Pub. L. No. 100-579, 102 Stat. 2916 (October 31, 1988).
\23\ Pub. L. 103-382, sec. 101, Sec. 9201-9212, 108 Stat. 3518,
3794 (October 20, 1994).
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Acting in furtherance of the Hawai`i Admission Act's
partial delegation of Federal responsibility for Native
Hawaiians, in 1978, the citizens of the State of Hawai`i
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 to provide for
the establishment of a quasi-independent State agency, the
Office of Hawaiian Affairs. The Hawai`i Constitution 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
derives from lands ceded to the United States by the Republic
of Hawai`i in 1898 and which were conveyed to the State of
Hawai`i in trust upon its admission into the Union of States
pursuant to section 5 of the Hawaii Admission Act. The
dedication of these revenues reflects the provision of section
5 of the Admission Act, which provides that the ceded lands and
the revenues derived therefrom should be held by the State of
Hawai`i as a public trust for five purposes--one of which is
the betterment of the conditions of Native Hawaiians.
On February 23, 2000, the United States Supreme Court
issued a ruling in the case of Rice v. Cayetano, 528 U.S. 495
(2000). The Supreme Court held that because the Office of
Hawaiian Affairs is an agency of the State of Hawai`i, funded
in part by appropriations made by the State legislature, the
Fifteenth Amendment to the United States Constitution requires
that the election for the trustees of the Office of Hawaiian
Affairs must be open to all citizens of the State of Hawai`i
who are otherwise eligible to vote in statewide elections.
Accordingly, all citizens of the State of Hawai`i may vote for
the candidates for the nine trustee positions and, as decided
in subsequent litigation, may themselves be candidates for
these offices.
The native people of Hawai`i have thus been divested of the
mechanism that was established under theHawai`i State
Constitution that, since 1978, has served as one means of
giving expression to their rights as indigenous, native people
of the United States to self-determination and self-governance.
H.R. 4282 is designed to address these developments by
providing a means under Federal 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.
The United States' special relationship with Native Americans
For the past two hundred and ten years, the United States
Congress, the Executive Branch, and the U.S. Supreme Court have
recognized certain legal rights and protections for America's
indigenous peoples. Since the founding of the United States,
Congress has exercised a constitutional authority over
indigenous affairs and has undertaken an enhanced duty of care
for America's indigenous peoples. This has been done in
recognition of the sovereignty possessed by the native people--
a sovereignty which pre-existed the formation of the United
States. The Congress' exercise ofits constitutional authority
is also premised upon the status of the indigenous people as the
original inhabitants of this nation who occupied and exercised dominion
and control over the lands over which the United States subsequently
acquired jurisdiction.
The United States has long recognized the existence of a
special political relationship with the indigenous people of
the United States. As Native Americans--American Indians,
Alaska Natives, and Native Hawaiians--American Indians, Alaska
Natives, and Native Hawaiians--the United States has recognized
that they are entitled to special rights and considerations,
and the Congress has enacted laws to give expression to the
respective legal rights and responsibilities of the Federal
government and the native people. As the United States Supreme
Court recognized in Morton v. Mancari,\24\ recognition of a
group of Native Americans as one with which the United States
recognizes a special relationship is a distinction that is
``political rather than racial in nature, \25\ and legislation
providing a preference for members of such groups does not
violate the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution where ``the special treatment
can be tied rationally to the fulfillment of Congress' unique
obligations toward the Indians[.] \26\
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\24\ 427 U.S. 535 (1974).
\25\ Id., 427 U.S. at 553 n.24.
\26\ Id., at 554.
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As the United States Supreme Court has recently noted, the
power of Congress to address the conditions of the native
people of the United States stems not only from the Indian
Commerce Clause, U.S. Const., Art. I, Sec. 3, cl. 8, \27\ but
rests also ``upon the Constitution's adoption of pre-
constitutional powers necessarily inherent in any Federal
Government, namely powers that [the U.S. Supreme] Court has
described as `necessary concomitants of nationality.' '' \28\
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\27\ Although ``[t]he treaty power does not literally authorize
Congress to act legislatively [with regard to Native Americans].''
United States. v. Lara, 124 S.Ct. 1628, 1633 (2004), the U.S. Supreme
Court ``has explicitly stated that the statute [ending the practice of
entering into treaties with the Indian tribes] `in no way affected
Congress' plenary powers to legislate on problems of Indians:'' Id.,
124 S.Ct. At 1634 (quoting Antoine v. Washington, 420 U.S. 194, 203
(1975)).
\28\ Lara, 124 S.Ct. at 1634 (citing United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 315-22 (1936), and L. Henkin,
Foreign Affairs and the U.S. Constitution 14-22, 63-72 (2d ed. 1996).
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The United States Supreme Court has so often addressed the
scope of Congress' constitutional authority to address the
conditions of native people that it is now well-
established.\29\ The Court has characterized the authority of
Congress as ``plenary'' \30\ or as ``plenary and exclusive,''
\31\ and has frequently stated its views regarding the broad
scope of Congressional authority regard to native people \32\
and other ``dependent sovereign[s] that [are] not * * *
state[s].'' \33\ Nor is this power limited to the native people
living within the territory of the original thirteen states--it
also extends to those living in lands that have been
subsequently acquired.\34\ With regard to the power of Congress
to make ``major changes in the metes and bounds of tribal
sovereignty,'' \35\ the particular power Congress seeks to
exercise here in the case of Native Hawaiians, the Court has
stated:
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\29\ ``The power of the general government over these remnants of a
race once powerful, now weak and diminished in numbers, is necessary to
their protection. As well as to the safety of those among whom they
dwell. It must exist in that government, because it never has existed
anywhere else, because the theater of its exercise is within the
geographical limits of the United States * * * From their very weakness
and helplessness, so largely due to the course of dealing of the
Federal government with them, and the treaties in which it has been
promised, there arises a duty of protection, and with it the power.
This has always been recognized by the executive, and by congress, and
by this court, whenever the question has arisen.'' United States v.
Kagama, 118 U.S. 375 (1886).
\30\ Morton v. Mancari, 427 U.S. 535 (1974).
\31\ Lara, 124 S.Ct. at 1633 (citing, e.g., Washington v.
Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 470-71
(1979), and Negonsett v. Samuels, 507 U.S. 99, 103 (1993)).
\32\ Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977);
United States v. Sioux Nation, 448 U.S. 371 (1980). The rulings of the
Supreme Court make clear that neither the conferring of citizenship
upon the native people, the allotment of their lands, the lifting of
restrictions on alienation of native land, the dissolution of a tribe,
the emancipation of individual native people, the fact that a group of
natives may be only a remnant of a tribe, the lack of continuous
Federal supervision over the Indians, nor the separation of individual
Indians from their tribes would divest the Congress of its
constitutional authority to address the conditions of the native
people. Cherokee Nation v. Hitchock, 187 U.S. 294 (1902); United States
v. Celestine, 215 U.S. 278 (1909); Tiger v. Western Inv. Co., 221 U.S.
286 (1911); United States v. Nice, 241 U.S. 591 (1916); Chippewa
Indians v. United States, 307 U.S. 1 (1939); Delaware Tribal Business
Council v. Weeks, 430 U.S. 73 (1977); United States v. John, 437 U.S.
634 (1979).
\33\ Lara, 124 S.Ct. at 1635 (noting the ``annexation of Hawaii by
joint resolution of Congress and the maintenance of a ``Republic of
Hawaii'' until formal incorporation by Congress, as described in Hawaii
v. Mankichi, 190 U.S. 197, 209-210 (1903), the establishment of the
Northern Mariana Islands as ``a self-governing commonwealth * * * in
political union with and under the sovereignty of the United States''
pursuant to note following 48 U.S.C. Sec. 1801 [see also Pub. L. 94-
241, 90 Stat. 263 (Mar. 24, 1976)], the recognition of the Philippine
Islands as an independent nation pursuant to 22 U.S.C. Sec. 1394, and
the authorization granted the people of Puerto Rico to ``organize a
government pursuant to a constitution of their own adoption'' pursuant
to the Act of July 3, 1950, 64 Stat. 319).
\34\ United States v. Sandoval, 231 U.S. 28 (1913).
\35\ Lara, 124 S.Ct. at 1635.
One can readily find examples in congressional
decisions to recognize, or to terminate, the existence
of individual tribes. See United States v. Holliday, 3
Wall. 407, 419 (1866) (``If by [the political branches]
those Indians are recognized as a tribe, this court
must do the same''); Menominee Tribe v. United States,
391 U.S. 404 (1968) (examining the rights of Menominee
Indians following the termination of their Tribe).
Indeed, Congress has restored previously extinguished
tribal status--by a re-recognizing a Tribe whose tribal
existence it previously had terminated. 25 U.S.C.
Sec. Sec. 903-903f (restoring the Menominee Tribe); cf.
United States v. Long, 324 F.3d 475 (CA7) (upholding
against double jeopardy challenge successive
prosecutions by the restored Menominee Tribe and the
Federal Government), cert. denied, 540 U.S. __, 124
S.Ct. 151 (2003).\36\
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\36\ Id.
While the Indian Commerce Clause of the U.S. Constitution
provides authority for the Congress to conduct relations with
the Indian tribes, over time the exercise of that authority has
evolved to include the enactment of laws which address the
conditions of individual Indians, individual indigenous native
people, and groups of native people who are not organized as
tribes. For instance, the federal policy of forced removal of
Indians from their ancestral lands to areas west of the
Mississippi was carried out without regard to tribal
organization, and later, the General Allotment Act \37\ and
other laws were enacted to provide for the termination of
Indian reservation status and the allotment of lands to
individual Indians.
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\37\ 24 Stat. 388 (February 8, 1887).
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The Alaska Native Allotment Act of 1906 \38\ provided for
similar allotment of native lands to individual Alaska Natives,
without regard to tribal organization.
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\38\ 34 Stat. 197 (May 17, 1906).
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In the states of California, Montana, and Washington, to
name but a few, individual Indians were removed to designed
reservations and were forced to live with other Indians who
were not members of the same tribe. In the 1960s, the Federal
policy of relocating Indians to urban areas was also carried
out without regard to tribal organization. The Alaska National
Interest Lands Conservation Act \39\ authorized a preference
for subsistence hunting and fishing by Alaska Natives,
notwithstanding the fact that not all Alaska Natives were
organized as tribes, and the Alaska Native Claims Settlement
Act \40\ (ANCSA) authorized the establishment of native
regional and village corporations in which Alaska Natives would
be the principal shareholders and the corporations would hold
title to the surface and subsurface estates of lands selected
by Alaska Native corporations under that Act, without regard to
whether the native shareholders were members of an Indian
tribe. ANCSA singled out the indigenous, native people for a
unique status and the rights and privileges which flowed from
that status, as distinct from other citizens of Alaska.
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\39\ Pub. L. 96-487, 94 Stat. 2371 (Dec. 2, 1980).
\40\ Pub. L. 92-203, 85 Stat. 688 (December 18, 1971).
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A more recent manifestation of Congress' broad
constitutional authority to address the conditions of the
indigenous, native people of the United States is the Federally
Recognized Indian Tribes List Act of 1994 \41\--which
designated as ``tribes'' for purposes of carrying on relations
with the United States a number of groups of native people who
were not previously organized as tribes, and in some cases who
are still not organized as tribes.
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\41\ Pub. L. 103-454, 108 Stat. 4791 (November 2, 1994).
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Furthermore, it is clear that the Congress has exercised
its constitutional authority to terminate the federal
government's recognition of tribal status, to restore federal
recognition of tribal status, and indeed to authorize the
indigenous, native people to come together to reorganize their
governments. The Indian Reorganization Act of 1934 \42\ was one
of the federal statutes that provided this native governmental
reorganization authority, and that Act did not impose any time-
related conditions requiring, for instance, that a native
government could only reorganize if its Federally recognized
status had been terminated within a certain number of years,
nor did that Act require that the indigenous, native people
seeking to reorganize a native government had to have been
formerly recognized by the Federal government as an Indian
tribe.
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\42\ 48 Stat. 984 (June 18, 1934).
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With regard to the period of time between termination and
restoration of the Federally recognized status of tribal
groups, while the average amount of time between termination
and restoration ranges from 19 to 36 years,\43\ the efforts to
secure restoration of Federally recognized status took much
longer in other instances--such as the 55 years between
termination and restoration experienced by the Pokagon Band of
Potawatomi Indians of Michigan.\44\ Federal law has never
provided that upon the passage of a designated period of time,
a native government is precluded from reorganizing. Thus the
indigenous, native people of Hawai'i are not precluded from
reorganizing a government based on the passage of time.
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\43\ Menominee, Restoration Act, Pub. L. 93-197; Auburn Indian
Restoration, Pub. L. 104-109; Siletz Indian Tribe Restoration Act, Pub.
L. 96-340; Yslete del Sur Pueblo and Alabama and Coushatta Indian
Tribes of Texas Restoration Act, Pub. L. 103-437; Paskenta Band
Restoration Act, Pub. L. 103-454; Catawba Indian Tribe of South
Carolina Land Claims Settlement Act of 1993, Pub. L. 103-116; Ponca
Restoration Act, Pub. L. 101-484; Coquille Restoration Act, Pub. L.
101-42; Klamath Indian Tribe Restoration Act, Pub. L. 99-398;
Confederated Tribes of the Grand Ronde Community of Oregon Restoration
Act, Pub. L. 98-165; Paiute Indian Tribe of Utah Restoration Act, Pub.
L. No. 96-227.
\44\ Pokagon Band of Potawatomi Indians Restoration Act, Pub. L.
103-323.
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H.R. 4282 and the federal recognition of Native Hawaiians
With the enactment of the Hawaiian Homes Commission Act in
1921and subsequent legislation, Congress has exercised its
broad powers under the Indian Commerce Clause to recognize Native
Hawaiians as among the indigenous people of the United States with whom
it maintains a special legal and political relationship. It is
significant that the United States recognized this relationship within
less than 25 years of the annexation of Hawai`i to the United States, a
period much shorter than, for example, the 55-year break in Federally-
recognized status experienced by the Pokagon Band. The restoration of
the United States' recognition of a Native Hawaiian governing entity
contemplated in this Act is well within the constitutional powers of
the Congress, just as is the restoration of Federal recognition of the
Menominee Tribe, and the fact that recognition of Native Hawaiians has
taken a form different from that bywhich Indian tribes within the 48
contiguous states have been recognized is without constitutional
significance.
H.R. 4282 provides a process of negotiations in which the
Native Hawaiian governing entity, the State of Hawai`i, and the
United States can reach consensus on matters of civil and
criminal jurisdiction, land use regulatory authority, the
transfer or exchange of lands and natural resources, and the
full range of issues that each of these governments may wish to
consider in shaping their future relationships as governments,
including any outstanding land claims. The bill provides that
once consensus is reached, the three governments will bring
their agreements to the Congress and to the Legislature of the
State of Hawai`i so that implementing legislation can be
enacted, and existing laws can be appropriately amended.
In a manner analogous to the Alaska Native Claims
Settlement Act, H.R. 4282 establishes a new and different
paradigm which, like other Native settlements acts, authorizes
the three governments to have implementing legislation enacted
and thereby to add to the body of Federal laws that are
designed to address the conditions of America's indigenous,
native people rather than importing into their relationships--
without adaptation to address the unique circumstances of
Hawai`i--the body of existing Federal Indian laws.
Conclusion
The primary injury that H.R. 4282 is intended to address is
the loss of a sovereign governing entity resulting from the
1893 overthrow of the government of the Kingdom of Hawai`i, an
event made possible by the actions of officials and citizens fo
the United States. Although Congress has consistently
recognized Native Hawaiians as among the native people of the
United States on whose behalf it may exercise its powers under
the Indian Commerce Clause, it has not as yet acted to provide
a process for the reorganization of a Native Hawaiian sovereign
governing entity. H.R. 4282 provides authority for that
process.
Neil Abercrombie.