[Senate Report 109-68]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 101
109th Congress                                                   Report
                                 SENATE
 1st Session                                                     109-68

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


 
EXPRESSING 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

                                _______
                                

                  May 16, 2005.--Ordered to be printed

                                _______
                                

    Mr. McCain, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 147]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 147) 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 having 
considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill (as amended) do pass.

                                PURPOSE

    The purpose of S. 147 is to provide a process for the 
reorganization of a Native Hawaiian government and, when that 
process has been completed in accordance with the Act, to 
reaffirm 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.

                               BACKGROUND

    S. 147 is the latest\1\ in a series of Senate and House 
bills that would authorize a process leading to the 
reorganization and recognition of a Native Hawaiian governing 
entity.\2\ See H.R. 4904 and S. 2899, introduced in the 106th 
Congress; H.R. 617, S. 746 and S. 1783 in the 107th Congress; 
and H.R. 665, H.R. 4282 and S. 344 in the 108th Congress.\3\ 
Between August 28 and September 1, 2000, the Committee held a 
5-day joint hearing with the House Committee on Resources on S. 
2899 and H.R. 4904, in Honolulu, Hawai`i, and received 
extensive oral and written statements of witnesses. See S. Hrg. 
106-753 and the addendum printed in S. Hrg. 106-1105. Another 
hearing on S. 2899 was held in Washington D.C. on September 14, 
2000. See S. Hrg. 106-795. Additionally, the Committee held a 
hearing on the current bill, S. 147, on March 1, 2005.\4\
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    \1\Both S. 147 and a companion bill, H.R.309, were introduced on 
January 25, 2005.
    \2\The bill would not itself create a Native Hawaiian governing 
entity--it would only authorize a process that would eventually lead to 
the organization and, eventually, Federal recognition of such an 
entity. Nor would the bill provide the entity with governmental powers 
or authority over lands or persons. Such powers and authority would be 
the subject of a future, three-way agreement that would have to be 
approved by the United States, the State of Hawaii and the Native 
Hawaiian governing entity.
    \3\The Senate reports associated with these earlier versions of S. 
147 are S. Rep. No. 106-424 (accompanying S. 2899), S. Rep. No. 107-66 
(accompanying S. 746) and S. Rep. No. 108-85 (accompanying S. 344).
    \4\The witnesses at the March 1 hearing were Representative Ed Case 
of Hawai`i; Congressman Eni Faleomavaega of American Samoa; Governor 
Linda Lingle of Hawai`i; Haunani Apoliona, Chair of the Board of 
Trustees, Office of Native Hawaiian Affairs; Tex Hall, President of the 
National Congress of American Indians; and Jade Danner, Director of 
Government Affairs and Community Consultation, Council for Native 
Hawaiian Advancement. The testimony of the witnesses was uniformly in 
support of the bill, and some witnesses indicated that recognition of a 
Native Hawaiian governing body enjoys widespread public support in 
Hawai`i in general and very strong--although not unanimous--support 
among Native Hawaiians in particular. The Committee did receive written 
statements and comments from numerous interested persons opposing the 
bill for a variety of reasons. For example, some oppose the bill on the 
ground that it will inappropriately bestow benefits on the members of 
the Native Hawaiian community that other citizens of Hawai`i will not 
be eligible to receive, or that the bill is contrary to the spirit of 
``aloha'' in Hawai`i and will have a divisive effect on its citizens. 
Others contend that the bill, because of how it defines the term 
``Native Hawaiian,'' will benefit a large number of persons who have a 
highly attenuated Native Hawaiian blood quantum. The Committee notes 
that, with regard to the last contention, the bill does not establish 
the rules for membership in the Native entity; membership requirements 
will be determined in the future by the Native Hawaiian people 
themselves, through the reorganization process authorized in the bill.
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    The Senate bill from the 108th Congress, S. 344, was 
reported favorably by the Committee with an amendment in the 
nature of a substitute on June 27, 2003. The Committee report 
filed with this amendment, S. Rep. No. 108-85, sets forth a 
detailed cultural and political history of the native, 
aboriginal people living in what is now the State of Hawai`i, 
including their relations with the ``outside'' world: the pre-
contact period and the initial encounter with Captain James 
Cook of the British Royal Navy in 1778; the consolidation of 
power under King Kamehameha in the early 19th Century, followed 
by several decades of increasing contact and influence of 
foreigners and foreign powers; relations with the United 
States, with which the Kingdom executed a series of treaties 
and conventions between 1826 and 1887; the overthrow of the 
Kingdom and Queen Lili`uokalani in 1893; the formation of the 
Republic of Hawai`i and its annexation by United States 5 years 
later; the establishment of the Territory of Hawai`i in 1900; 
and, finally, the admission of the State of Hawai`i into the 
Union in 1959. Reference should be made to the Committee's 
report accompanying S. 344, S. Rep. No. 108-85, for this 
detailed account of the history of the Native Hawaiian people 
and the islands. However, a few key points of this history are 
summarized below for purposes of context.

The Great Mahele

    By the middle of the 19th century, the islands' small non-
native population had come to wield an influence far in excess 
of its size.\5\ These influential westerners sought to limit 
the absolute power of the Hawaiian king over their legal rights 
and to implement property law so that they could accumulate and 
control land. As a result of foreign pressure, these goals were 
achieved.\6\ In 1840, King Kamehameha III promulgated a new 
constitution, establishing a hereditary House of Nobles and an 
elected House of Commons. Soon afterward, the King authorized 
the Great Mahele (``division'')--the beginning of the division 
of Hawai`i's communal lands which ultimately led to the 
transfer of substantial amounts of that land to western hands. 
In the 1848 Mahele, the King conveyed about 1.5 million of the 
approximately 4 million acres in the islands to the konohiki, 
or main chiefs; he reserved about 1 million acres for himself 
and his royal successors (``Crown Lands''), and allocated about 
1.5 million acres to the government of Hawai`i (``Government 
Lands''). All lands remained subject to the rights of native 
tenants. In 1850, after the division was accomplished, an act 
was passed permitting non-natives to purchase land in fee 
simple. The law implementing the Mahele contemplated that the 
maka`ainana, or commoners, would receive a substantial portion 
of the distributed lands because they were entitled to file 
claims to the lands that their ancestors had cultivated. In the 
end, however, only 28,600 acres (less than 1% of the land) were 
awarded to about 8,000 individual farmers.\7\ Upon annexation 
in 1898, the remaining Government Lands and Crown Lands were 
ceded by the Republic of Hawai`i to the United States. These 
lands came to be known as the ``Ceded Lands.''
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    \5\See Felix S. Cohen, Handbook of Federal Indian Law, 799 (2d ed. 
1982): ``A small number of Westerners residing in Hawai`i, bolstered by 
Western warships which intervened at critical times, exerted enormous 
political influence.''
    \6\See e.g., Native Hawaiian Rights Handbook (Melody K. Mackenzie, 
ed., 1991), at 6. See, also, 1 Ralph S. Kuykendall, The Hawaiian 
Kingdom (1938), at 206-26, for a description of the expansion of 
foreign influence within the kingdom in the years leading up to the 
Mahele.
    \7\Mackenzie, supra, 6-9. The maka`ainana failed to secure a great 
portion of the land for a number of reasons. Many did not know of or 
understand the new laws, could not afford the survey costs, feared that 
a claim would be perceived as a betrayal of the chief, were unable to 
farm without the traditional common cultivation and irrigation of large 
areas, were killed in epidemics, or migrated to cities. Id., at 8.
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Hawaiian Homes Commission Act

    By 1920, due to the dramatic decline in the numbers of 
Native Hawaiians in the decades leading up to and following the 
overthrow, there were many who 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 matter, 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.\8\
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    \8\H.R. Rep. No. 66-839, 66th Cong., 2d Sess., at 4 (1920).

    Secretary Lane 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 other 
Indians.\9\
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    \9\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,'' 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, and citing a Solicitor's opinion stating that the setting 
aside of public lands within the Territory of Hawai`i would not be 
unconstitutional, relying in part on the congressionally authorized 
allotment to Indians as precedent for such an action); 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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    Senator John H. Wise, a member of the Legislative 
Commission of the Territory of Hawai`i, testified before the 
United States House of Representatives as follows:

          The idea in trying to get the lands back to some of 
        the Hawaiians is to rehabilitate them. I believe that 
        we should get them on lands and let them own their own 
        homes. . . .

           *       *       *       *       *       *       *

          The Hawaiian people are a farming people and 
        fishermen, out-of-door people, and when they were 
        frozen out of their lands and driven into the cities 
        they had to live in the cheapest places, tenements. 
        That is one of the big reasons why the Hawaiian people 
        are dying. Now, the only way to save them, I contend, 
        is to take them back to the lands and give them the 
        mode of living that their ancestors were accustomed to 
        and in that way rehabilitate them.\10\
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    \10\Id. at 39. Wise's testimony was also quoted and adopted in the 
House Committee on the Territories' report to the full U.S. House of 
Representatives, H. Rep. No.66-839, at 4.

    In 1920, Prince Jonah Kuhio Kalaniana`ole (Prince Kuhio), 
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.''\11\ 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.\12\
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    \11\59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio 
Kalaniana`ole).
    \12\H. Rep. No. 66-839, at 5 (statement of Secretary Lane).
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    The effort to ``rehabilitate'' the dying race of Native 
Hawaiians by returning them to the land led the Congress to 
enact the Hawaiian Homes Commission Act on July 9, 1921. The 
Act sets aside approximately 203,500 acres of the Ceded Lands 
for homesteading by Native Hawaiians.\13\ Congress compared the 
Act to ``previous enactments granting Indians . . . special 
privileges in obtaining and using the public lands.''\14\
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    \13\Hawaiian Homes Commission Act, Sec. 203.
    \14\H.Rep. No. 66-839, at 11 (1920).
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    In support of the Act, the House Committee on the 
Territories recognized that, prior to the Mahele, Hawaiians had 
a one-third interest in the lands of the Kingdom. The Committee 
reported that the Act was necessary to address the way 
Hawaiians had been short-changed in prior land distribution 
schemes.\15\ Prince Kuhio further testified before the U.S. 
House of Representatives that Hawaiians had an equitable 
interest in the unregistered lands that reverted to the Crown 
before being taken by the Provisional Government and, 
subsequently, the Territorial Government:
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    \15\Id., at 6-7.

          [T]hese lands, which we are now asking to be set 
        aside for the rehabilitation of the Hawaiian race, in 
        which a one-third interest of the common people had 
        been recognized, but ignored in the division, and which 
        reverted to the Crown, presumably in trust for the 
        people, were taken over by the Republic of Hawai`i by 
        an article of [its] constitution. . . .

           *       *       *       *       *       *       *

          By annexation these lands became a part of the public 
        lands of the United States, and by the provisions of 
        the organic act under the custody and control of the 
        Territory of Hawai`i.

           *       *       *       *       *       *       *

    We are not asking that what you are to do be in the nature 
of a largesse or as a grant, but as a matter of justice. . . 
.\16\
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    \16\59 Cong. Rec. 7452-3 (1920) (statement of Delegate Jonah Kuhio 
Kalaniana`ole).
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    The 1921 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 occupy and use or cultivate 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,\17\ 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 1923, the 
Congress amended the Act to permit 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.\18\
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    \17\25 U.S.C. 331-334, 339, 342, 348, 349, 354, 381 (1998).
    \18\Office of State Planning, Office of the Governor, State of 
Hawai`i, Pt. I, Report on Federal Breaches of the Hawaiian Home Lands 
Trust, 4-6 (1992).
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    During the remainder of the Territorial period and the 
first two decades following statehood, administration of the 
Hawaiian home lands program was inadequately funded, and the 
best lands were leased to non-Hawaiians in order to generate 
operating funds. There was little income remaining for the 
development of infrastructure or the settlement of Hawaiians on 
the home lands. The lack of resources-combined with 
questionable transfers and exchanges of Hawaiian home lands, 
and a decades-long waiting list of those eligible to reside on 
the home lands-rendered the home lands program an illusory 
promise for most Native Hawaiians.\19\
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    \19\Id., at 12-18.
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The Hawai`i Admission Act

    As a condition of statehood, the Hawai`i Admission Act\20\ 
required the State of Hawai`i to adopt the Hawaiian Homes 
Commission Act and imposed a public trust on the lands ceded by 
the United States to the new State. The 1959 Compact between 
the United States and the People of Hawai`i by which Hawai`i 
was admitted into the Union expressly provides that:

    \20\Pub. L. No. 86-3, 73 Stat. 4 (March 18, 1959) (the ``Admission 
Act'').
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          As a compact with the United States relating to the 
        management and disposition of the Hawaiian home lands, 
        the Hawaiian Homes Commission Act, 1920, as amended, 
        shall be adopted as a provision of the Constitution of 
        said State, as provided in section 7, subsection (b) of 
        this Act, subject to amendment or repeal only with the 
        consent of the United States, and in no other manner: 
        Provided, That (1) . . . the Hawaiian home-loan fund, 
        the Hawaiian home-operating fund, and the Hawaiian 
        home-development fund shall not be reduced or impaired 
        by any such amendment, whether made in the constitution 
        or in the manner required for State legislation, and 
        the encumbrances authorized to be placed on Hawaiian 
        home lands by officers other than those charged with 
        the administration of said Act, shall not be increased, 
        except with the consent of the United States; (2) that 
        any amendment to increase the benefits to lessees of 
        Hawaiian home lands may be made in the constitution, or 
        in the manner required for State legislation, but the 
        qualifications of lessees shall not be changed except 
        with the consent of the United States; and (3) that all 
        proceeds and income from ``available lands'', as 
        defined by said Act, shall be used only in carrying out 
        the provisions of said Act.\21\
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    \21\Admission Act, Sec. 4, 73 Stat. at 5.

           *       *       *       *       *       *       *

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          The lands granted to the State of Hawai`i by 
        subsection (b) of this section and public lands 
        retained by the United States under subsections (c) and 
        (d) and later conveyed to the State under subsection 
        (e), together with the proceeds from the sale or other 
        disposition of any such lands and the income therefrom, 
        shall be held by said State as a public trust for the 
        support of public schools and other public educational 
        institutions, for the betterment of the conditions of 
        native Hawaiians, as defined in the Hawaiian Homes 
        Commission Act, 1920, as amended, for the development 
        of farm and home ownership on as widespread a basis as 
        possible for the making of public improvements, and for 
        the provision of lands for public use. Such lands, 
        proceeds, and income shall be managed and disposed of 
        for one or more of the foregoing purposes in such 
        manner as the constitution and laws of said State may 
        provide, and their use for any other object shall 
        constitute a breach of trust for which suit may be 
        brought by the United States.\22\
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    \22\Id., Sec. 5(f), 73 Stat. at 6 (emphasis added).

    These explicit delegations of Federal authority to be 
assumed by the new State were not discretionary or permissive. 
The sections of the Admission Act quoted above contemplate a 
continuing Federal role, as do sections 204 and 223 of the 
Hawaiian Homes Commission Act, which provide that the consent 
of the Secretary of the Interior must be obtained for certain 
exchanges of trust lands and which reserved to Congress the 
right to amend that Act.\23\ The Federal courts have noted that 
the United States retains the authority to bring an enforcement 
action against the State of Hawai`i for breach of the section 
5(f) trust.\24\
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    \23\With the adoption of its new Constitution, the State of Hawai`i 
assumed the Federally-delegated responsibility of administering the 
Ceded Lands in accordance with the 5 purposes set forth in the 
Admission Act and of managing the 203,500 acres of land that had been 
set aside by Congress in 1921 for the benefit of the native people of 
Hawai`i under the Hawaiian Homes Commission Act. See Haw. Const. Art. 
XII, Sec. Sec. 2 and 4, and Art. XVI, Sec. 7, respectively.
    \24\Han v. United States, 45 F.3d 333, 337 (9th Cir. 1995).
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The ``Apology Resolution''

    On November 23, 1993, the President signed into law a joint 
resolution of the Congress acknowledging the 100th anniversary 
of the 1893 overthrow of the government of the Kingdom of 
Hawai`i and extending an apology on behalf of the United States 
to Native Hawaiians for the roll played in that overthrow by 
agents and citizens of the United States.\25\ In one of its 
recitals, the Apology Resolution also acknowledged that the 
Native Hawaiian people never directly relinquished their claims 
to inherent sovereignty as a people or over their national 
lands to the United States, either through their monarchy or 
through a plebiscite or referendum. The Apology Resolution 
further urged the President to support reconciliation efforts 
between the United States and the Native Hawaiian people.
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    \25\See, Public Law 103-150 (the ``Apology Resolution'').
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    Six years later, in response to the Apology Resolution, the 
Departments of Interior and Justice initiated a series of 
meetings in Native Hawaiian communities on each of the 
principal islands in the State of Hawai`i, culminating in two 
days of open dialogue. In each of these meetings, members of 
the Native Hawaiian community identified what they believed to 
be necessary elements for a process of reconciliation of the 
relationship between the United States and the Native Hawaiian 
people. A report issued by the two Departments in October 2000, 
entitled From Mauka to Makai: The River of Justice Must Flow 
Freely, made the following recommendation:

          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. . . .\26\
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    \26\From Mauka to Makai: The River of Justice Must Flow Freely, a 
report of the Departments of Interior and Justice, October 23, 2000, at 
17.
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                          NEED FOR LEGISLATION

    In 1978, in furtherance of the provisions of the Admission 
Act, the citizens of the State of Hawai`i amended the State 
constitution to provide for the establishment of a quasi-
independent State agency, the Office of Hawaiian Affairs 
(``OHA''). The State constitution, as amended, provides that 
the OHA is to be governed by nine trustees who are Native 
Hawaiian and who are to be elected by Native Hawaiians. In 
accordance with laws enacted by the State following the 1978 
constitutional amendment, OHA administers programs and services 
using revenues derived from the Ceded Lands consistent with the 
conditions of Sec. 5 of the Admission Act and Public Law 88-
233.\27\
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    \27\77 Stat. 472 (December 23, 1963).
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    OHA's use of these revenues to provide programs and 
services for Native Hawaiians reflects the provision in section 
5(f) of the Admission Act requiring that the ceded lands and 
the revenues derived therefrom be held by the State of Hawai`i 
as a public trust for five stated purposes--one of which, 
again, is ``the betterment of the conditions of native 
Hawaiians.'' The Admission Act also provides that the new State 
assumes a trust responsibility for approximately 203,500 acres 
of land that had previously been set aside in 1921 for Native 
Hawaiians pursuant to the Hawaiian Homes Commission Act.\28\
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    \28\42 Stat. 108 (July 9, 1921), as amended (Hawaiian Homes 
Commission Act).
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    On February 23, 2000, the United States Supreme Court 
issued a ruling in the case of Rice v. Cayetano,\29\ holding 
unconstitutional the eligibility requirements for voting in 
elections of OHA trustees. The Court held that because OHA is 
an agency of the State of Hawai`i, funded in part by 
appropriations made by the State legislature, the election for 
the trustees of the OHA must be open to all citizens of the 
State of Hawai`i who are otherwise eligible to vote in 
statewide elections.\30\ The State of Hawai`i had argued in 
Cayetano that the state law excluding non-Hawaiians from voting 
in OHA elections should be analyzed in accordance with the 
Court's rule enunciated in Morton v. Mancari,\31\ wherein the 
Court upheld against an equal protection challenge the policy 
for Indian preference in hiring within the Bureau of Indian 
Affairs. The Cayetano Court rejected the State's Mancari 
argument, reasoning as follows:
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    \29\528 U.S. 495 (2000).
    \30\The Court held that the provision of state law requiring those 
voting for the office of Trustee of the Office of Hawaiian Affairs to 
be Native Hawaiian violated the Fifteenth Amendment prohibition against 
abridging the right to vote on account of race.
    \31\417 U.S. 535 (1974).

          If a non-Indian lacks a right to vote in tribal 
        elections, it is for the reason that such elections are 
        the internal affair of a quasi sovereign. The OHA 
        elections, by contrast, are the affair of the State of 
        Hawaii, established by the State Constitution, 
        responsible for the administration of state laws and 
        obligations.\32\
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    \32\Id., at 520.

    Following the Supreme Court's decision in Cayetano, new 
civil actions were filed challenging the constitutionality of 
other aspects of OHA as well as Hawai`i's provision of programs 
and services to Native Hawaiians. In Arakaki v. State of 
Hawaii,\33\ the Court of Appeals for the Ninth Circuit ruled 
that the State law requiring candidates for the OHA Board of 
Trustees to be Native Hawaiian was unconstitutional on grounds 
similar to those in Cayetano. Accordingly, all citizens of the 
State of Hawai`i may now vote for the candidates for the nine 
trustee positions and may themselves be candidates for these 
offices.
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    \33\314 F.3d 1091 (9th Cir. 2002).
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    Other civil actions filed since the Cayetano decision have 
gone beyond the voting rights issues raised in that case and in 
Arakaki v. Hawai`i. These other cases target the provision of 
programs and services to Native Hawaiians by OHA, the Hawaiian 
Homes Commission and the Department of Hawaiian Home Lands on 
the grounds that providing benefits exclusively to Native 
Hawaiians is racially discriminatory under the Equal Protection 
clauses of the Fifth and Fourteenth Amendments.\34\ If these 
challenges were to succeed, those elements of the United 
States' 1959 compact with the people of Hawai`i intended to 
benefit Native Hawaiians may be lost.\35\
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    \34\See, Arakaki v. Cayetano, T1324 F.3d 1078, 1081 (9th Cir. 
2003).
    \35\The Committee notes that both the Cayetano and the Arakaki 
decisions involved claims that the laws establishing OHA violated the 
15th Amendment prohibition against abridging the right to vote on 
account of race, whereas the challenges to the delivery of services to 
Native Hawaiians involve 14th Amendment equal protection claims.
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    S. 147 establishes a process that would lead eventually to 
the formation of a native governing entity that would have a 
government-to-government relationship with the United States. 
And eventually thereafter, the programs and services now 
provided by OHA in furtherance of the provisions of the 
Admission Act would likely be provided instead by the Native 
Hawaiian governing body to its members--that is, to persons who 
have a political affiliation with a federally recognized Native 
Hawaiian governing entity with which the United States would 
have a formal, government-to-government relationship--so that 
equal protection challenges to those programs and services 
would be subject to the analysis of Morton v. Mancari.
    Accordingly, apart from providing Native Hawaiians with a 
vehicle for reorganizing a governing entity through which they 
might, as have other native peoples in the United States, 
pursue the goals of self-determination and greater control over 
the future of their own resources and culture, another purpose 
of S. 147 is to assure that the long-standing Congressional 
policy of protecting and advancing the interests of Native 
Hawaiians--dating back at least to the 1921 Hawaiian Homes 
Commission Act--and the bargained-for conditions that were made 
part of the 1959 compact that led to the admission of the State 
of Hawai`i into the Union, are not ultimately frustrated as a 
result of these recent legal challenges.

           CONSTITUTIONAL SOURCES OF CONGRESSIONAL AUTHORITY

    The report filed with S. 344 during the 108th Congress sets 
forth an extensive discussion of the constitutional sources of 
Congressional authority to legislate on matters relating to the 
native peoples of the United States, including the 
reorganization of a Native Hawaiian governing entity pursuant 
to that bill;\36\ however, the Committee notes that in April of 
2004, several months after the filing of that report, the 
United States Supreme Court issued its decision in United 
States v. Lara.\37\ In Lara, the Court expressed the view that 
the Congress enjoys ```plenary' grants of power''\38\ to 
legislate over matters relating to Indians and clarified its 
views of the sources of that power.\39\
---------------------------------------------------------------------------
    \36\See, S. Rep. No. 108-85, at 22-36.
    \37\541 U.S. 193 (2004).
    \38\Id., at 202; emphasis added.
    \39\The Court noted that the power of Congress in Indian affairs 
derives not only from the Indian Commerce Clause, U.S. Const., Art. I, 
Sec. 8, cl. 3, and the Treaty Clause, Art. II, Sec. 2, cl. 2 (Lara, at 
200-1), but rests also ``upon the Constitution's adoption of 
preconstitutional powers necessarily inherent in any Federal 
Government, namely powers that [the U.S. Supreme] Court has described 
as `necessary concomitants of nationality.''' Id. at 201.
---------------------------------------------------------------------------
    The Lara decision is pertinent to S. 147 in that, in 
reaching the conclusion that Congress has the authority to 
modify, through legislation, the contours of inherent Indian 
tribal sovereignty, the Court compared, and justified, the 
particular modifications in sovereignty involved in that case 
with some examples of ``adjustments to the autonomous status of 
other such dependent entities,'' including the Territory of 
Hawaii, the Northern Mariana Islands, the Philippines and 
Puerto Rico.\40\ The Lara Court acknowledged that Congress' 
plenary power over Indian affairs--again, the sources of which, 
according to the Court, stem not only from the Indian Commerce 
Clause but also the Treaty Clause and the ``necessary 
concomitants of nationality''\41\--includes the power to 
recognize, terminate and restore the tribal status of Indian 
tribes.\42\
---------------------------------------------------------------------------
    \40\Id., at 203-4; emphasis added.
    \41\Id., at 201-2.
    \42\Id. See, also, the Court's observations in U.S. v. John, 437 
U.S. 634 (1978): ``[I]n view of the elaborate history, recounted above, 
of relations between the Mississippi Choctaws and the United States, we 
do not agree that Congress and the Executive Branch have less power to 
deal with the affairs of the Mississippi Choctaws than with the affairs 
of other Indian groups. Neither the fact that the Choctaws in 
Mississippi are merely a remnant of a larger group of Indians, long ago 
removed from Mississippi, nor the fact that federal supervision over 
them has not been continuous, destroys the federal power to deal with 
them.'' Id., at 652-3.
---------------------------------------------------------------------------
    In short, the plenary grants of power described by the 
Court in Lara should be more than broad enough to reach the 
business of S. 147--to provide to the descendants of an 
aboriginal people with whom the United States executed several 
formal treaties a mechanism with which to organize a native 
government, and to assure that a long-standing Federal policy 
of protecting the interests of Native Hawaiians--a policy 
reflected in the United States' 1959 compact with the people of 
the State of Hawai`i--will continue into the future.

        SUMMARY OF PROVISIONS OF SUBSTITUTE AMENDMENT TO S. 147

    The following is a broad summary of the principal 
provisions of the substitute amendment to S. 147:
    Section 2 sets forth 23 Congressional findings, many of 
which focus on the history of Native Hawaiians and the United 
States policy as it relates to Native Hawaiians, including the 
enactment of over 160 public laws to address the conditions of 
Native Hawaiians.
    Section 5 establishes the United States Office of Native 
Hawaiian Relations within the Office of the Secretary of the 
U.S. Department of the Interior. The Office is to be the 
principal entity through which the United States will carry on 
the reconciliation process with Native Hawaiians and will 
effectuate and coordinate the relationship of the United States 
and the Native Hawaiian governing entity once it has been 
formed. The Office would also serve as lead agency for the work 
of a Native Hawaiian Interagency Coordinating Group that is to 
be established in section 6 of S. 147.
    Section 6 establishes an interagency coordinating group of 
Federal officials whose principal responsibility would be to 
coordinate Federal programs and policies affecting Native 
Hawaiians and to assure that each Federal agency conducting 
such programs or services develops a Native Hawaiian 
consultation policy.
    Section 7 provides 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 government 
for purposes of carrying on a government-to-government 
relationship. This section also provides for establishment of a 
nine-member Commission, composed of Native Hawaiians who meet 
the definition of ``Native Hawaiian'' set forth in section 
3(10), for the purposes of preparing and maintaining a roll of 
the adult members of the Native Hawaiian community who elect to 
participate in the reorganization of the Native Hawaiian 
governing entity, and certifying that the adult members of the 
Native Hawaiian community proposed for inclusion on the roll 
meet the definition of ``Native Hawaiian'' in section 3(10).
    The nine-member Commission is to submit the roll to the 
Secretary of Interior within two years from the date on which 
the Commission is fully composed, and to certify to the 
Secretary that each of the adult members of the Native Hawaiian 
community proposed for inclusion on the roll meet the 
definition of Native Hawaiian set forth in section 3(10) of the 
substitute amendment. Upon the Commission's certification, the 
Secretary is to publish the roll in the Federal Register.
    Section 7 also authorizes the Secretary to establish a 
mechanism for appeal for any person whose name is excluded from 
the roll and who asserts that he or she meets the definition of 
Native Hawaiian in section 3(10) and is 18 years of age or 
older. The Secretary is to publish the roll regardless of 
whether appeals are pending, and update the roll and the 
publication of the roll on the final disposition of any appeal, 
as well as update the roll to include any Native Hawaiian who 
has attained the age of 18 and who has been certified by the 
Commission as meeting the definition of Native Hawaiian in 
section 3(10) after the initial publication of the roll or 
after any subsequent publications of the roll.
    Following the publication of the roll, the adult members of 
the Native Hawaiian community listed on the roll elect an 
Interim Governing Council that is authorized to conduct 
referenda on the proposed elements of the organic governing 
documents of the Native Hawaiian governing entity, the proposed 
criteria for citizenship of the Native Hawaiian governing 
entity, the proposed powers and authorities to be exercised by 
the Native Hawaiian governing entity, as well as the proposed 
privileges and immunities of the Native Hawaiian governing 
entity, the proposed civil rights and protection of civil 
rights of the citizens of the Native Hawaiian governing entity 
and all persons affected by the exercise of governmental powers 
and authorities of the Native Hawaiian governing entity, and 
other issues determined appropriate by the Council.
    Based on the referendum, the Council is authorized to 
develop proposed organic governing documents for the Native 
Hawaiian governing entity, to distribute them to all adult 
members of the Native Hawaiian community listed on the roll, 
and conduct an election for the purpose of ratifying the 
proposed organic governing documents. Upon the ratification of 
the organic governing documents, the governing documents are to 
be submitted to the Secretary of the Interior by the Council 
for certification that they are consistent with Federal law and 
the special relationship between the United States and the 
indigenous, native people of the United States. The Secretary 
is required to certify that the governing documents provide for 
the protection of the civil rights of the citizens of the 
Native Hawaiian government and all persons affected by the 
exercise of governmental powers and authorities by the Native 
Hawaiian government. If the Secretary determines that the 
governing documents do not meet the requirements of section 7, 
they are to be resubmitted to the Council with a justification 
for any findings of noncompliance. In such event, the Council 
must amend the organic governing documents to meet all 
applicable requirements of section 7 and then resubmit them to 
the Secretary.
    Once the Secretary has made these certifications, and the 
officers of the Native Hawaiian governing entity are elected, 
the bill would reaffirm the political and legal relationship 
between the United States and the Native Hawaiian governing 
entity and extend Federal recognition to the Native Hawaiian 
governing entity as the representative governing body of the 
Native Hawaiian people.
    Following the extension of Federal recognition of the 
Native Hawaiian governing entity, section 8 of the substitute 
amendment authorizes the United States and the State of Hawai`i 
to enter into negotiations with the Native Hawaiian governing 
entity to address the following matters: the transfer of lands, 
natural resources, and other assets, and the protection of 
existing rights related to such lands or resources; the 
exercise of governmental authority over any transferred lands, 
natural resources, and other assets, including land use; the 
exercise of civil and criminal jurisdiction; the delegation of 
governmental powers and authorities to the Native Hawaiian 
governing entity by the United States and the State of Hawai`i; 
and any residual responsibilities of the United States and the 
State of Hawai`i.
    Section 8 also provides that, upon agreement on any matter 
or matters negotiated with the United States, the State of 
Hawai`i, and the Native Hawaiian governing entity, the parties 
are authorized to submit recommendations for proposed 
amendments to Federal law that will enable the implementation 
of agreements reached by the three governments to the Committee 
on Indian Affairs of the Senate and the Committee on Energy and 
Natural Resources of the Senate, and the Committee on Resources 
of the House of Representatives, and recommendations for 
proposed amendments to State law that will enable the 
implementation of the agreements reached by the three 
governments to the Governor and the legislature of the State of 
Hawai`i.
    Finally, section 8 provides (1) that nothing in the Act 
serves as a settlement of any claim against the United States, 
and (2) requires that claims against the United States arising 
under Federal law that are in existence on the date of 
enactment and asserted by the Native Hawaiian governing entity 
on behalf of Native Hawaiians relating to the legal and 
political relationship between the United States and the Native 
Hawaiian people must be brought within 20 years after the date 
on which Federal recognition is extended to the governing 
entity.
    Section 9 of the bill provides that the Act does not 
authorize the Native Hawaiian governing entity to conduct 
gaming under the Indian Gaming Regulatory Act and does not 
authorize eligibility to participate in Bureau of Indian 
Affairs programs and services for any person not otherwise 
eligible for such programs or services.

                AMENDMENT IN THE NATURE OF A SUBSTITUTE

    At the business meeting held on March 9, 2005, the 
Committee approved an amendment in the nature of a substitute. 
The amendments in the substitute (1) clarify the definition of 
``Native Hawaiian'' in section 4 by stating that the definition 
does not affect the definition of that term under any other 
Federal or State law; (2) add three new defined terms, ``Indian 
program or service,'' ``Indian tribe,''\43\ and ``Native 
Hawaiian program or service'' to section 4; (3) revise 
subsection (b) to section 9 to provide that Act does not make 
any person eligible for Indian programs and services if such 
person is not otherwise eligible for the program or service 
under applicable Federal law; and (4) add a new subsection (c) 
to section 9 stating that the Native Hawaiian governing entity 
and its citizens shall be eligible for Native Hawaiian programs 
and services to the extent and in the manner provided by other 
applicable laws.
---------------------------------------------------------------------------
    \43\The term ``Indian tribe'' has the same meaning given to that 
term in section 4 of the Indian Self-Determination and Education 
Assistance Act, 25 U.S.C. 450b.
---------------------------------------------------------------------------
    The purpose of the amendment to subsection 9 is to clarify 
an important point of Congressional intent: persons who become 
eligible for citizenship in the newly reorganized Native 
Hawaiian entity would not, by virtue of that citizenship alone, 
become eligible to receive ``Indian programs and services'' but 
would be eligible to receive ``Native Hawaiian programs and 
services to the extent and in the manner provided by other 
applicable laws'' relating to Native Hawaiian programs and 
services.\44\ If a person is a member of a Federally recognized 
Indian tribe and is also a citizen of the Native Hawaiian 
entity, his or her eligibility to receive Indian programs and 
services from, for example, Indian Health Service would not be 
increased, diminished or otherwise affected by such 
citizenship.\45\
---------------------------------------------------------------------------
    \44\In other words, the ``other applicable law'' would determine 
whether the Native Hawaiian citizen in question is eligible for a 
particular program or service.
    \45\The Committee would further point out that this section is not 
intended to limit or in any way affect Federal or State programs for 
Native Hawaiians that are currently coordinated with, or provided by, 
Federal agencies that also provide services to Indians and Alaska 
Natives. This section should not be interpreted to preclude agencies 
whose purpose it is to provide services to Native Hawaiians from 
entering into and carrying out otherwise lawful cooperative agreements 
or memoranda of understanding with Federal agencies that provide 
services to American Indians or Alaska Natives, so long as Federal 
funding appropriated for ``Indian programs and services'' is not used 
to provide programs and services to Native Hawaiian citizens who are 
not otherwise--that is, independently--eligible to receive those Indian 
programs or services.
---------------------------------------------------------------------------
    The amendment to section 9 reflects the facts that (1) 
there already exists an array of separate and distinct Federal 
and State programs and services specifically intended for 
Native Hawaiians and (2) current Federal programs and services 
for Indians and Alaska Natives are underfunded and incapable of 
absorbing a large population of new recipients.

          SECTION-BY-SECTION ANALYSIS OF SUBSTITUTE AMENDMENT

Section 1. Short title

    Section 1 provides that this Act may be cited as the 
``Native Hawaiian Government Reorganization Act of 2005''.

Section 2. Findings

    This section sets forth the Congress' findings. Findings 
(1) through (3) recite Congress' constitutional authority to 
address the condition of native people of the United States, 
and its political and legal responsibility to promote the 
welfare of native people, including Native Hawaiians. Finding 
(4) recites that under the treaty making power of the United 
States, Congress confirmed treaties with the Kingdom of 
Hawai`i, and from 1826 until 1893, the United States recognized 
the sovereignty of the Kingdom and accorded it full diplomatic 
recognition, and entered into a series of treaties and 
conventions in 1826, 1842. 1849, 1875, and 1887. Findings (5) 
through (7) reflect Congress' determination of the need and 
efforts to address conditions of Native Hawaiians through the 
Hawaiian Homes Commission Act of 1920. Finding (8) documents 
Congress' establishment of the ceded lands trust as a condition 
of statehood for the State of Hawai`i. Findings (9) through 
(11) reflect the importance of the Hawaiian Home Lands and 
Ceded Lands to Native Hawaiians as a foundation for the Native 
Hawaiian community for the survival and economic self-
sufficiency of the Native Hawaiian people and their maintenance 
of other distinctively native areas in Hawai`i. Findings (12) 
through (14) address and describe the effect of the 1993 
Apology Resolution. Findings (15) through (18) address the 
status of the Native Hawaiian community as a ``distinct native 
community,'' their expressions of rights to self-determination 
and self-governance, their traditional and cultural practices 
and desires to preserve, develop and transmit to future 
generations their lands, practices and political and cultural 
identity to future generations. Finding (19) recites that this 
Act provides a process within the framework of Federal law for 
Native Hawaiians to exercise their inherent rights as a 
distinct indigenous, native community and reorganize a Native 
Governing entity. Finding (20) recites that Congress has 
declared that the United States has a special responsibility 
for the welfare of its native peoples, including Native 
Hawaiians, has identified Native Hawaiians as a distinct group 
of native people within the scope of its authority under the 
Constitution, has enacted laws on their behalf, and has 
delegated to the State of Hawai`i some of the Unites States' 
responsibilities relating to Native Hawaiians and their lands. 
Finding (21) states that the United States has recognized and 
reaffirmed the special political and legal relationship with 
the Native Hawaiian people through the provisions of the 
Admission Act. Finding (22) states that the United States has 
continually recognized and reaffirmed that Native Hawaiians 
have a cultural, historic and land-based link to the original 
indigenous people of the Hawaiian Islands and have never 
relinquished their claims to sovereignty or their sovereign 
lands, that the United States extends services to Native 
Hawaiians because of their unique status as an indigenous 
people with whom the United States has a political and legal 
relationship, and that 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. Finally, finding (23) documents that the 
Governor and Legislature of the State of Hawai`i have expressed 
their strong support for the recognition of the Native Hawaiian 
governing entity.

Section 3. Definitions

    This section sets forth definitions of terms used in the 
bill. Defined terms are Aboriginal, Indigenous, Native People; 
Adult Member; Apology Resolution; Commission; Council; Indian 
Program or Service; Indian Tribe; Indigenous, Native People; 
Interagency Coordinating Group; Native Hawaiian; Native 
Hawaiian Governing Entity; Native Hawaiian program or service; 
Office; and Secretary.
    With regard to the definition of the term ``Native 
Hawaiian,'' it is the intent of the Committee that the 
definition shall be applicable for the purpose of establishing 
the roll authorized under section 7(c)(1) and until such time 
as the Native Hawaiian governing entity is recognized by the 
United States. Thereafter, however, the definition of ``Native 
Hawaiian'' for the purposes of citizenship in the Native 
Hawaiian governing entity shall be as provided for in the 
organic governing documents of the Native Hawaiian governing 
entity pursuant to section 7(c)(2), and upon certification of 
those documents by the Secretary of the Interior pursuant to 
section 7(c)(4), the definition of Native Hawaiian in the 
organic governing documents of the Native Hawaiian governing 
entity shall be the definition of Native Hawaiian for purposes 
of this Federal law. The Committee notes that the definition of 
Native Hawaiian either in this Act or as eventually used in 
those organic governing documents is not intended to alter or 
affect the meaning of that term wherever it is used in other 
laws. The substitute amendment clarifies that the term Native 
Hawaiian as used in the Act does not affect the definition of 
that term under any other Federal or State law.

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 special political and legal relationship and cites 
to some of the laws that reflect that relationship. It states 
the constitutional authority to enact legislation addressing 
the conditions of Native Hawaiians, and also affirms that 
Native Hawaiians have the right to self-determination and to 
reorganize a Native Hawaiian governing entity. Section 4 also 
states that the purpose of the Act is to provide a process for 
the reorganization of the Native Hawaiian governing entity and 
the reaffirmation of the political and legal relationship 
between the United States and the Native Hawaiian governing 
entity for purposes of continuing a government-to-government 
relationship.

Section 5. United States Office for Native Hawaiian Relations

    This section establishes the United States Office for 
Native Hawaiian Relations within the Office of the Secretary of 
the Department of Interior. This Office is charged with: (1) 
continuing the process of reconciliation with the Native 
Hawaiian people in furtherance of the Apology Resolution; (2) 
upon reaffirmation and Federal recognition of the Native 
Hawaiian governing entity, effectuating and coordinating the 
special political and legal relationship between the Native 
Hawaiian people through the Secretary and with other Federal 
agencies; (3) fully integrating the principle and practice of 
meaningful, regular, and appropriate consultation 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) consulting with the Interagency Coordinating Group, 
other Federal agencies, and with the State of Hawai`i 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, the 
Senate Committee on Energy and Natural Resources, and the House 
Committee on Resources 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.
    It is the intent of the Committee that the United States 
Office for Native Hawaiian Relations serve as a liaison between 
the Native Hawaiian people and the United States for the 
purposes of continuing the reconciliation process and ensuring 
proper consultation with the Native Hawaiian people for any 
Federal policy impacting Native Hawaiians. The Committee does 
not intend that the United States Office for Native Hawaiian 
Relations will assume the responsibility or authority for the 
administration of any of the Federal programs established to 
address the conditions of Native Hawaiians that are by law 
carried out by other agencies. All Federal programs established 
and administered by Federal agencies will remain with those 
agencies.

Section 6. Native Hawaiian Interagency Coordinating Group

    This section establishes the Native Hawaiian Interagency 
Coordinating Group composed of officials from each Federal 
agency administering Native Hawaiian programs, to be designated 
by the President, and a representative from the U.S. Office of 
Native Hawaiian Relations. The Department of Interior is to 
serve as the lead agency of the Interagency Coordinating Group. 
The primary responsibility of the Coordinating Group is to 
coordinate Federal policies or acts that affect Native 
Hawaiians or impact Native Hawaiian resources, rights, or 
lands. The Coordinating Group is also charged with assuring 
that each Federal agency develops a Native Hawaiian 
consultation policy and participates in the development of the 
report to Congress authorized in section 5.

Section 7. Process for the Reorganization of the Native Hawaiian 
        Governing Entity and the Reaffirmation of the Political and 
        Legal Relationship Between the United States and the Native 
        Hawaiian Governing Entity

    This section sets forth the process for the reorganization 
of the Native Hawaiian governing entity and reaffirms the 
political and legal relationship between the United States and 
the Native Hawaiian governing entity.
    Subsection (a) provides that the United States recognizes 
that the Native Hawaiian people have the right to reorganize 
the Native Hawaiian governing entity for their common welfare 
and to adopt appropriate organic governing documents.
    Subsection (b)(1) authorizes the establishment of a nine-
member Commission, to be appointed by the Secretary of the 
Interior, for the purposes of preparing and maintaining a roll 
of the adult members of the Native Hawaiian community who elect 
to participate in the reorganization of the Native Hawaiian 
governing entity and for certifying to the Secretary that those 
proposed for inclusion on the roll meet the definition of 
``Native Hawaiian'' as set forth in section 3(10). The 
Secretary is to appoint members of the Commission within 180 
days of the enactment of this Act who meet the definition of 
``Native Hawaiian'' as set forth in section 3(10) and have 
expertise in the determination of Native Hawaiian ancestry and 
lineal descent. The section provides that members of the 
Commission shall be reimbursed for travel expenses, including 
per diem in lieu of subsistence, while away from their homes or 
regular places of business in the performance of services for 
the Commission.
    The section also provides authority for the Commission to 
appoint and terminate an executive director and such other 
additional personnel, without regard to the civil service laws 
or regulations, as are necessary to enable the Commission to 
perform the duties of the Commission. The Commission is 
authorized to fix the compensation of the executive director 
and other personnel without regard to the provisions of chapter 
51 and subchapter III of chapter 53 of title 5 of the United 
States Codes relating to the classification of positions and 
General Schedule pay rates, however the rate of pay for the 
executive director and other personnel are not to exceed the 
rate payable for level V of the Executive Schedule under 
section 5316 of title 5 of the U.S. Code.
    The section also provides authorization for employees of 
the Federal government to be detailed to the Commission without 
reimbursement, provided that the detail of the employee shall 
be without interruption or loss of civil service status or 
privilege. The Commission is also authorized to procure 
temporary and intermittent services in accordance with section 
3109(b) of title 5 of the U.S. Code, at rates for individuals 
that do not exceed the daily equivalent of the annual rate of 
basic pay prescribed for level V of the Executive Schedule 
under section 5316 of title 5.
    The Secretary is required to dissolve the Commission 
following the reaffirmation of the political and legal 
relationship between the Native Hawaiian governing entity and 
the United States and the extension of Federal recognition by 
the United States to the Native Hawaiian governing entity as 
the representative governing body of the Native Hawaiian people 
as provided in section 7(c)(6).
    Subsection (c) establishes the process for the 
reorganization of the Native Hawaiian governing entity.
    Subsection (c)(1) sets forth the process for the formation 
of the roll, which is to include the names of all adult members 
of the Native Hawaiian community who are certified to be Native 
Hawaiian pursuant to section 3(10) and choose to participate in 
the reorganization of the Native Hawaiian governing entity. 
Each adult member seeking enrollment shall submit documentation 
to the Commission in the form established by the Commission 
sufficient to document that the individual meets the definition 
of Native Hawaiian set forth in section 3(10). In determining 
the eligibility of individuals to be listed on the roll, the 
Commission may consult with Native Hawaiian organizations, 
agencies of the State of Hawai`i, to include the Department of 
Hawaiian Home Lands, Office of Hawaiian Affairs, and the State 
Department of Health, and other entities with expertise and 
experience in the determination of Native Hawaiian ancestry and 
lineal descent. The Commission is to submit the roll to the 
Secretary of the Interior within two years from the date on 
which the Commission is fully composed and shall certify that 
each person proposed for inclusion on the roll meets the 
definition of Native Hawaiian set forth in section 3(10). Upon 
certification, the Secretary is to publish the roll in the 
Federal Register. The Secretary is authorized to establish a 
process whereby any person 18 years or older in age who claims 
to have been excluded from the roll can appeal that exclusion. 
The Secretary is to publish the roll regardless of whether 
appeals are pending and is to update the roll and the 
publication of the roll to reflect the final disposition of 
appeals and to include any Native Hawaiian who attains the age 
of 18 and is certified by the Commission as meeting the 
definition of Native Hawaiian in section 3(10) after the 
initial publication of the roll or any subsequent publications 
updating the original roll. If the Secretary fails to publish 
the roll within 90 days of the date on which the certified roll 
is submitted by the Commission, the Commission is to publish 
the roll notwithstanding any order or directive to the contrary 
issued by the Secretary of any other official of the Department 
of the Interior. Adult members of the Native Hawaiian community 
whose names are listed in the published roll, as updated, shall 
be eligible to participate in the reorganization of the Native 
Hawaiian governing entity.
    Subsection (c)(2) addresses the organization of the Native 
Hawaiian Interim Governing Council.
    Subsection (c)(2)(A) provides that the adult members of the 
Native Hawaiian community whose names are listed on the roll 
published by the Secretary may develop eligibility criteria for 
election to serve on the Native Hawaiian Interim Governing 
Council, may determine the structure of the Council, and may 
elect the members of the Council from those listed on the final 
roll.
    Subsection (c)(2)(B) provides that the Council may 
represent individuals on the published roll in the 
implementation of the Act and shall have no powers other than 
those specifically conferred upon it under the authority of 
this Act. Generally, the Council's authorities are limited to 
activities relating to the development of proposed organic 
documents, the conduct of a referendum on the documents, and 
submission of the documents to the Secretary for certification 
that they meet the requirements of the Act. The Council may 
enter into a contract with, or obtain a grant from, any Federal 
or State agency for the purpose of carrying out its authorized 
activities and may also conduct a referendum among the adult 
members of the Native Hawaiian community whose names are listed 
on the published roll for the purpose of determining the 
proposed elements of the organic governing documents of the 
Native Hawaiian governing entity, including but not limited to 
the proposed criteria for citizenship of the Native Hawaiian 
governing entity, the proposed powers, authorities, privileges, 
and immunities of the Native Hawaiian governing entity, the 
proposed civil rights and protection of the rights of the 
citizens of the Native Hawaiian governing entity and all 
persons affected by the exercise of its governmental powers and 
authorities, and other issues determined by the Council to be 
appropriate. Based on the referendum, the Council may develop 
proposed organic governing documents for the Native Hawaiian 
governing entity, may distribute to all adult members of the 
Native Hawaiian community listed on the published roll a copy 
of the proposed organic governing documents and a brief 
impartial description of their contents. The Council may also 
hold elections for the purpose of ratifying the proposed 
organic governing documents and, upon certification of those 
documents by the Secretary in accordance with section 7(c)(4), 
may hold elections of the officers of the Native Hawaiian 
governing entity.
    Subsection (c)(3) provides that following the organization 
of the Native Hawaiian governing entity and the adoption of 
organic governing documents, the Council shall submit the 
ratified organic governing documents to the Secretary.
    Subsection (c)(4)(A) provides that within the context of 
the future negotiations to be conducted under the authority of 
section 8(b)(1), and the subsequent actions of Congress and the 
State of Hawai`i to adopt implementing legislation, but not 
later than 90 days after the date on which the Council submits 
the organic governing documents to the Secretary, the Secretary 
shall certify that the organic governing documents:
           establish criteria for citizenship in the 
        Native Hawaiian governing entity;
           were adopted by a majority vote of the adult 
        members of the Native Hawaiian community whose names 
        are listed on the roll published by the Secretary;
           provide authority for the Native Hawaiian 
        governing entity to negotiate with Federal, State, and 
        local governments, and other entities;
           provide for the exercise of governmental 
        authorities by the Native Hawaiian governing entity, 
        including any authorities delegated to the entity by 
        the United States and the State of Hawaii pursuant to 
        any agreements executed pursuant to negotiations 
        authorized in section 8(b)(1) and any legislation 
        necessary to implement such agreements;
           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 all persons affected by the governmental 
        authority of the Native Hawaiian governing entity; and
           are consistent with applicable Federal law 
        and the special political and legal relationship 
        between the United States and the indigenous native 
        people of the United States, provided however that the 
        provisions of Public Law 103-454, 25 U.S.C. 479a, shall 
        not apply.
    It is the Committee's intent that for purposes of 
determining whether the criteria for citizenship in the Native 
Hawaiian governing entity are consistent with applicable 
Federal law, the definition of ``Native Hawaiian'' set forth in 
section 3 of the Act or any other Federal law shall not be a 
constraint on the right of the Native Hawaiian governing entity 
to determine its own citizenship or membership.
    Subsection (c)(4)(B) provides that if the Secretary 
determines that any provision of the organic governing 
documents is not consistent with applicable Federal law, the 
Secretary shall resubmit the organic governing documents to the 
Council along with a justification for each of the Secretary's 
findings as to why the provisions are not consistent with such 
law. The Council is authorized to amend the organic governing 
documents in order to ensure their compliance with applicable 
Federal law and to resubmit the organic governing documents to 
the Secretary for certification.
    Subsection (c)(4)(C) provides that the certification of the 
organic government documents shall be deemed to have been made 
if the Secretary has not acted within 90 days of the date that 
the Council has submitted the organic governing documents of 
the Native Hawaiian governing entity to the Secretary.
    Subsection (c)(5) provides that on completion of the 
certifications made by the Secretary, the Council may hold 
elections of the officers of the Native Hawaiian governing 
entity.
    Subsection (c)(6) provides that upon the certifications of 
the organic governing documents of the Native Hawaiian 
governing entity and the election of the officers of the Native 
Hawaiian governing entity, the political and legal relationship 
between the United States and the Native Hawaiian governing 
entity is reaffirmed and United States extends Federal 
recognition to the Native Hawaiian governing entity as the 
representative governing body of the Native Hawaiian people.

Section 8. Reaffirmation of Delegation of Federal Authority; 
        Negotiations; Claims

    Section 8(a) reaffirms the United States' delegation of 
authority to the State of Hawai`i in the Admission Act to 
address the conditions of the indigenous, native people of 
Hawai`i.
    Section 8(b) provides that, upon the Federal recognition 
and reaffirmation of the Native Hawaiian governing entity, the 
United States and the State of Hawai`i are authorized to enter 
into negotiations with the Native Hawaiian governing entity 
that are designed to lead to an agreement or agreements 
addressing matters such as the transfer of lands, natural 
resources and other assets to the Native Hawaiian governing 
entity, the protection of existing rights related to such lands 
or resources, and the exercise of governmental authority over 
such lands, natural resources and other assets, including the 
exercise of civil and criminal jurisdiction by the Native 
Hawaiian governing entity, the delegation of governmental power 
and authorities to the Native Hawaiian governing entity,\46\ 
and the scope of any residual responsibilities of the United 
States and the State of Hawai`i. When the three governments 
reach agreement on one or more matters, they are authorized to 
submit recommendations for legislation that may be necessary to 
implement the agreement or agreements that they have reached to 
the Committee on Indian Affairs and the Committee on Energy and 
Natural Resources of the Senate, the Committee on Resources of 
the House of Representatives, and the Governor and Legislature 
of the State of Hawai`i.
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    \46\Under current law--including the Admission Act, the Hawai`i 
Constitution and the state laws enacted pursuant to the Hawai`i 
Constitution--responsibility for the administration of the Hawaiian 
home lands and the Ceded Lands for specified purposes has been 
delegated to the State of Hawai`i. Accordingly, to the extent that the 
Native Hawaiian governing entity would exercise jurisdiction or 
authority over any portion of these lands, the agreement must of 
necessity delegate such jurisdiction and authority to the entity--and 
any delegation of that sort in the agreement would require enactment of 
legislation by the United States Congress for the delegation to be 
effective. The Committee would note that the reference in section 8(b) 
to ``delegation of governmental powers and authorities'' is not 
intended to imply that the Native Hawaiian governing entity would not 
otherwise have any inherent powers.
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    Section 8(c) provides that nothing in this Act shall be 
construed as a settlement of any claim against the United 
States, and provides further that any claim against the United 
States arising under Federal law which is in existence on the 
date of enactment of this Act, that is asserted by the Native 
Hawaiian governing entity on behalf of the Native Hawaiian 
people, and which relates to the legal and political 
relationship between the United States and the Native Hawaiian 
people, must be filed in the court of jurisdiction over such 
claims within 20 years of the date on which Federal recognition 
is extended to the Native Hawaiian governing entity pursuant to 
section 7(c)(6). The period of time established for the filing 
of claims on behalf of the Native Hawaiian people in section 
8(c) applies only to the Native Hawaiian governing entity.
    It is the Committee's intent that the reference to ``lands, 
natural resources and other assets'' which are the subject of 
negotiations contemplated in subsection (b) shall include, but 
not be limited to, lands set aside under the Hawaiian Homes 
Commission Act and lands ceded by the Republic of Hawai`i to 
the United States in 1898 and later ceded to the State pursuant 
to Sec. 5 of the Admission Act and Pub. L. 88-233, 77 Stat. 472 
(December 23, 1963).

Section 9. Applicability of Certain Federal Laws

    This section provides that nothing in this Act is to be 
construed as an authorization for the Native Hawaiian governing 
entity to conduct gaming activities under the authority of the 
Indian Gaming Regulatory Act. Section 9 also provides that the 
Act does not provide an authorization for eligibility to 
participate in any Indian program or service to any individual 
or entity not otherwise eligible for the program or service 
under applicable law, and that the Native Hawaiian governing 
entity and its citizens shall be eligible for Native Hawaiian 
programs and services to the extent and in the manner provided 
by other applicable law.

Section 10. Severability

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

Section 11. Authorization of Appropriations

    This section authorizes the appropriation of such sums as 
are necessary to carry out this Act.

                          LEGISLATIVE HISTORY

    S. 147 was introduced on January 25, 2005, by Senator Akaka 
for himself and Senator Inouye, and referred to the Committee 
on Indian Affairs. Senator Smith of Oregon became a cosponsor 
on February 16, 2005, Senator Cantwell of Washington on 
February 18, 2005, and Senator Murkowski of Alaska on March 8, 
2005.\47\ A hearing on S. 147 was held before the Committee on 
March 1, 2005, and on March 9, 2005, the bill, with an 
amendment in the nature of a substitute, was ordered by the 
Committee to be favorably reported to the full Senate.
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    \47\Additional Senators joined as cosponsors after the business 
meeting on March 9, 2005, when the bill was ordered reported with the 
substitute amendment: Senator Coleman of Minnesota on March 10, 2005, 
Senator Dorgan of North Dakota on April 4, 2005, Senator Stevens of 
Alaska on April 5, 2005, and Senator Graham of South Carolina on May 
11, 2005.
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    A House companion measure to S. 147, H.R. 309, was 
introduced on January 25, 2005, by Representative Abercrombie, 
for himself and Representatives Case, Grijalva, Young, Moran, 
Bordallo and Faleomavaega, and referred to the Committee on 
Resources. On February 1, 2005, Representative Rahall joined as 
a cosponsor.
    In the 108th Congress, S. 344, a bill similar in purpose to 
S. 147, was introduced on February 11, 2003, by Senator Akaka, 
for himself and Senator Inouye, and referred to the Committee 
on Indian Affairs. Senator Reid of Nevada became a cosponsor on 
February 27, 2003, Senator Stevens of Alaska on March 17, 2003, 
Senator Hatch of Utah on November 12, 2003, Senator Smith of 
Oregon on December 9, 2003, Senator Campbell of Colorado on 
April 21, 2004, and Senator Carper of Delaware on June 24, 
2004. A hearing on S. 344 was held before the Committee on 
Indian Affairs on February 25, 2003. S. 344 was ordered 
favorably reported to the full Senate by the Committee on 
Indian Affairs on May 14, 2003.
    A House companion measure to S. 344, H.R. 665, was 
introduced on February 11, 2003, by Representative Abercrombie, 
for himself and Representative Case, and thereafter referred to 
the Committee on Resources.
    In the 107th Congress, S. 746, a bill similar in purpose to 
S. 147, was introduced on April 6, 2001, by Senator Akaka, for 
himself and Senator Inouye, and thereafter referred to the 
Committee on Indian Affairs. On July 24, 2001, S. 746 was 
ordered favorably reported to the full Senate. The Committee 
report accompanying the bill was S. Rep. No. 107-66.
    A House companion measure to S. 746, H.R. 617, was 
introduced in the House of Representatives by Representative 
Neil Abercrombie, for himself and Representatives Patsy Mink, 
Eni Faleomavaega, James Hansen, Dale Kildee, Nick Rahall, and 
Don Young, and thereafter referred to the Committee on 
Resources. H.R. 617 was ordered favorably reported to the full 
House of Representatives on May 16, 2001. S. 746 and H.R. 617 
were not acted upon prior to the sine die adjournment of the 
107th session of the Congress.
    In the 106th Congress, S. 2899, a bill similar in purpose 
to S. 344, was introduced by Senator Akaka, for himself and 
Senator Inouye, and referred to the Committee on Indian 
Affairs. A House companion measure to S. 2899, H.R. 4904, was 
introduced in the House of Representatives and thereafter 
referred to the Committee on Resources. The Committee and the 
Committee on Resources held five consecutive days of joint 
hearings on S. 2899 and H.R. 4904 in Hawai`i from Monday, 
August 28, through Friday, September 1, 2000. The Committee 
held an additional hearing on S. 2899 in Washington D.C. on 
September 13, 2000. S. 2899 was ordered favorably reported to 
the full Senate by the Committee on September 13, 2000. The 
Committee report accompanying the bill was Senate Report 106-
424. H.R. 4904 was ordered favorably reported by the House 
Resources Committee and passed the House on September 26, 2000. 
H.R. 4904 failed to pass the Senate before the sine die 
adjournment of the 106th session of the Congress.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    On March 9, 2005, in an open business meeting, the 
Committee considered an amendment in the nature of a substitute 
to S. 147, and ordered the bill, as amended, to be favorably 
reported to the Senate.

                   COST AND BUDGETARY CONSIDERATIONS

    The cost estimate of the Congressional Budget Office on S. 
147 is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 25, 2005.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 147, the Native 
Hawaiian Government Reorganization Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mike Waters 
(for federal costs) and Majorie Miller (for the impact on 
state, local, and tribal governments).
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 147--Native Hawaiian Government Reorganization Act of 2005

    S. 147 would establish a process for establishing and 
recognizing a Native Hawaiian governing entity. CBO estimates 
that implementing S. 147 would cost nearly $1 million annually 
in fiscal years 2006-2008 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.
    The bill would establish the United States Office or Native 
Hawaiian Relations within the Department of Interior (DOI), 
which would be responsible for developing and overseeing the 
federal relationship with the Native Hawaiian governing entity. 
Based on information from DOI, CBO expects that this office 
would require up to three full-time personnel. S. 147 also 
would establish the Native Hawaiian Interagency Coordinating 
Group, consisting of officials from affected 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 members to 
complete its work.
    S. 147 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 Hawai'i, would be the subject of 
future negotiations.
    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 Robert A. Sunshine, Assistant Director for Budget 
Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee has not received any executive communications 
on S. 147 or the substitute amendment to it.

                    REGULATORY AND PAPERWORK IMPACT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate require each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 147 will 
have a minimal impact on regulatory or paperwork requirements.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
provisions of S. 147 do not effect any change in existing law.