[House Report 110-389]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-389
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NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2007
_______
October 18, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 505]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 505) 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, report favorably thereon without amendment
and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 505 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 a Native Hawaiian governing entity.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 505 was introduced on January 17, 2007 by
Representatives Abercrombie (D-HI) and Hirono (D-HI). It would
authorize a process leading to the reorganization and
recognition of a Native Hawaiian governing entity. A Native
Hawaiian government will not be recognized immediately upon
enactment of this measure. Instead, a process is established
that requires the Secretary of the Interior to certify that the
organic governing documents of a Native Hawaiian government are
consistent with Federal law and with the political and legal
relationship between the United States and the indigenous
people of the United States. Upon such certification, H.R. 505
authorizes the Federal recognition of a Native Hawaiian
government.
Historical Background
Native Hawaiians are the indigenous, native people of
Hawai`i, with whom the United States has a trust relationship.
Congress has repeatedly recognized the unique status of Native
Hawaiians since 1921. The long-standing policy of the United
States has been to protect and advance Native Hawaiian
interests.
Beginning in the 106th Congress, the House Committee on
Resources and the Senate Committee on Indian Affairs have held
extensive hearings on the reorganization of a Native Hawaiian
government. Both Committees have filed reports\1\ setting forth
a detailed cultural and political history of the aboriginal
people living in what is now the State of Hawai`i. Rather than
repeat this detailed history, those documents are hereby
incorporated into this report. Reference should be made to
those reports, in particular S. Rep. No. 108-85, for a detailed
account of the history of the Native Hawaiian people and the
islands, 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 the United States
five 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. A short summary of information will be
provided to place the issue in context.
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\1\See ``Legislative History'' below.
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The Great Mahele
In the middle of the 19th century, influential non-
Hawaiians sought to limit the absolute power of the Hawaiian
king and to implement property law so that they could
accumulate and control land. As a result of foreign pressure,
in 1840, King Kamehameha III promulgated a new constitution.
Soon thereafter, the King authorized the Great Mahele
(``division''), in which the King conveyed about 1.5 million
acres 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. 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.''
Republic of Hawai`i
On January 17, 1893, a group of American citizens and
others, who acted with the support of the United States
Minister John Stephens and a contingent of United States
Marines, overthrew the government of the Kingdom of Hawai`i.
Supporters of this revolutionary movement organized the
Republic of Hawai`i. Notwithstanding strong opposition from
within the Native Hawaiian community, officials of the Republic
of Hawai`i succeeded in having the Hawaiian Islands annexed by
the United States. In 1898, Congress adopted the Joint
Resolution for Annexing the Hawaiian Islands to the United
States.\2\ Soon thereafter, Congress passed the Hawai`i Organic
Act\3\ establishing a government for the newly created
Territory of Hawai`i.
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\2\30 Stat. 750 (August 12, 1898).
\3\31 Stat. 141 (April 30, 1900).
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Hawaiian Homes Commission Act, 42 Stat. 108 (July 9, 1921)
By 1920, many were concluding that Native Hawaiians 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.\4\ Then Secretary of the Interior
Franklin 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.\5\ In an effort to ``rehabilitate'' Native Hawaiians
by returning them to the land, the Congress enacted the
Hawaiian Homes Commission Act.\6\ The Act sets aside
approximately 203,500 acres of the Ceded Lands for Native
Hawaiian homesteading.\7\ Congress compared the Act to
``previous enactments granting Indians . . . special privileges
in obtaining and using the public lands.''\8\
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\4\H. Rep. No. 66-839 (1920).
\5\Id., at 5.
\6\42 Stat. 108 (July 9, 1921), as amended (Hawaiian Homes
Commission Act).
\7\Id., Sec. 203.
\8\H. Rep. No. 66-839, at 11 (1920).
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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.''\9\
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\9\H.R. Rep. No. 66-839, at 4 (1920).
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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 programs for Native Hawaiians are
fully supported by history and ``an extension of the same
idea'' that supports such programs for other Indians.\10\
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\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 Hawai`i, February 3, 4, 5, 7, and 10,
1920, at 129-30 (rejecting the argument that legislation aimed at
``this distinct race'' would be unconstitutional, Secretary Lane stated
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 citing a
Solicitor's opinion that stated 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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The 1921 Act authorizes a Native Hawaiian to lease Ceded
Lands 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,\11\ the leases were intended to encourage rural
homesteading so that Native Hawaiians would 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.\12\ Thereafter, the
demand for residential lots far exceeded the demand for
agricultural or pastoral lots.\13\
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\11\25 U.S.C. Sec. Sec. 331-334, 339, 342, 348, 349, 354, 381
(1998).
\12\42 Stat. 1222, Sec. 3 (Feb. 3, 1923).
\13\Office of State Planning, Office of the Governor, State of
Hawai`i, Pt. 1, Report on Federal Breaches of the Hawaiian Home Lands
Trust, 4-6 (1992).
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Hawai`i Admission Act, Public Law 86-3, 73 Stat. 4 (March 18, 1959)
Congress again recognized the unique status of Native
Hawaiians when Hawai`i gained Statehood in 1959. Upon its
admission into the Union of States, the Ceded Lands were
conveyed to the State of Hawai`i.\14\ Section 5(f) of the
Admission Act requires that the Ceded Lands and the revenues
derived therefrom be held by the State of Hawai`i as a public
trust for five purposes--one of which was for the betterment of
Native Hawaiians.\15\ Moreover, as a condition of admission
into the Union, the Hawai`i Admission Act\16\ also required the
new State to assume management of the homesteading program
established under the Hawaiian Homes Commission Act\17\ and to
adopt that Federal law, as amended, as a provision of its
Constitution.
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\14\Pub. L. No. 86-3, 73 Stat. 4 (March 18, 1959), 5 (the
``Admission Act'').
\15\Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
\16\Id., Sec. 4.
\17\42 Stat. 108 (July 9, 1921), as amended.
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These explicit delegations of Federal authority to be
assumed by the new State were not discretionary or permissive.
Instead, the United States retained responsibility for the
administration and amendment of the Hawaiian Homes Commission
Act, and continues to oversee 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.
The Federal government retains the right to enforce the
trust responsibility for Native Hawaiians.\18\ In fact, the
Admission Act provided that the use of the Ceded 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.'\19\ Likewise, sections 204 and 223 of the
Hawaiian Homes Commission Act require the Secretary of the
Interior to consent to certain exchanges of trust land and
reserve to Congress the right to amend that Act. 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.\20\ These
responsibilities are also enforceable by the Native Hawaiian
beneficiaries themselves.\21\
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\18\Id.
\19\Pub. L. No. 86-3, Sec. 4.
\20\See e.g., Han v. United States, 45 F. 3d 333 (9th Cir. 1995).
\21\See, e.g., Keaukaha-Panaewa Community Ass'n v. Hawaiian Homes
Comm'n, 739 F. 2d 1467 (9th Cir. 1984) (finding that Section 5(f) of
the Hawai`i Admission Act, which set aside lands held in trust under
the Hawaiian Homes Commission Act, creates a Federal right in the
Native Hawaiian beneficiaries enforceable prospectively against the
State of Hawai`i under 42 U.S.C. 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 Section5(f) of
the Hawai`i Admission Act but which were not Hawaiian Home lands.).
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1978 Amendments to the Hawai`i Constitution
In 1978, the Hawai`i State constitution was amended to
further the special relationship with Native Hawaiians and to
protect Native Hawaiian subsistence rights, hunting and
gathering rights, their right to self-determination and self-
governance, and their attempts to preserve their culture and
language. The 1978 amendments established a quasi-independent
State agency, the Office of Hawaiian Affairs. Pursuant to the
1978 amendments, the Office was to be governed by nine trustees
who are Native Hawaiian and who are to be elected by Native
Hawaiians.
Hawai`i's adoption of amendments to the State constitution
to fulfill the special relationship with Native Hawaiians is
consistent with the practice of other states that have
established special relationships with the native inhabitants
of their areas. Fourteen states have extended recognition to
Indian tribes that are not recognized by the Federal
government, and thirty-two states have established commissions
and offices to address matters of policy affecting their
indigenous citizenry.
Apology Resolution, Public Law 103-150
One hundred years after the illegal overthrow of the Native
Hawaiian government, 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 (Apology
Resolution).\22\ 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 their claims to their inherent
sovereignty as a people over their national lands to the United
States, either through their government or through a plebiscite
or referendum.
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\22\Public Law 103-150.
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Reconciliation Report
In response to the Apology Resolution, the Departments of
Interior and Justice initiated a process of reconciliation in
1999 by conducting meetings in Native Hawaiian communities on
each of the principal islands in the State of Hawai`i. At each
meeting, Native Hawaiians identified what they believe are the
necessary elements of a process to reconcile the relationship
between the United States and the Native Hawaiian people.
Although the two departments made several recommendations, the
principal recommendation was ``that the Native Hawaiian people
should have self-determination over their own affairs within
the framework of Federal law, as do Native American tribes . .
. [and] [t]o 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.''\23\
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\23\From Mauka to Makai: The River of Justice Must Flow Freely,
Report on the Reconciliation Process between the Federal Government and
Native Hawaiians Prepared by the Department of the Interior and the
Department of Justice, p. 17, October 23, 2000.
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Rice v. Cayetano, 528 U.S. 495 (2000)
On February 23, 2000, the United States Supreme Court
issued a ruling in the case of Rice v. Cayetano.\24\ The
Supreme 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 of the United States Constitution. The Court in Rice
specifically stated that it need not decide whether Native
Hawaiians have the same status as Indian tribes because of its
finding that the provision violated the Fifteenth Amendment.
The Court found that the Office of Hawaiian Affairs is an
agency of the State of Hawai`i, funded in part by
appropriations made by the State legislature. Therefore, 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 Hawaiian citizens may vote for the candidates for the
trustee positions and may themselves be candidates for these
offices.\25\ Consequently, Native Hawaiians have been divested
of the mechanism that, since 1978, has enabled them to give
expression to their rights as indigenous, native people of the
United States to self-determination and self-governance. H.R.
505 would address these developments by extending the Federal
policy of self-determination and self-governance to Native
Hawaiians.
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\24\528 U.S. 495 (2000).
\25\See, Arakaki v. State of Hawai`i, 314 F.3d 1091 (9th Cir. 2002)
(invalidating on similar grounds the requirement that candidates for
that office to be Native Hawaiian).
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Congress' Plenary Authority
For the past 210 years, the United States Congress, the
Executive Branch, and the United States Supreme Court have
recognized certain legal rights and protections for America's
indigenous peoples. Since the founding of the United States,
Congress has exercised 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. Congress' constitutional authority is 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 which eventually became the United States.
The United States has long recognized the existence of a
political relationship with the indigenous people of the United
States. The United States has recognized that Native
Americans--American Indians, Alaska Natives, and Native
Hawaiians--they are entitled to different rights and
considerations. 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 stated in Morton v. Mancari,\26\ the United States
relationship with Native Americans is ``political rather than
racial in nature''\27\ and legislation providing a preference
for members of such groups does not violate the Equal
Protection Clause of the Fourteenth Amendment of the United
States Constitution where ``the special treatment can be tied
rationally to the fulfillment of Congress'' unique obligations
toward the Indians[.]''\28\
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\26\427 U.S. 535 (1974).
\27\Id. at 553, n. 24.
\28\Id. at 554.
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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.
The Court has characterized the authority of Congress as
``plenary''\29\ or as ``plenary and exclusive.''\30\ In
addition, the Court has frequently stated its views regarding
the broad scope of Congressional authority with respect to
native people\31\ and other ``dependent sovereign[s] that [are]
not . . . state[s].''\32\ The reports filed with H.R. 4282 and
S. 344 during the 108th Congress set forth a more extensive
discussion of the constitutional sources of Congressional
authority to legislate on matters relating to Native Americans,
including the reorganization of a Native Hawaiian governing
entity.\33\
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\29\Id.
\30\United States v. Lara, 541 U.S. 193 (2004).
\31\Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977);
United States v. Sioux Nation, 448 U.S. 371 (1980).
\32\Lara, 541 U.S. at 203.
\33\See, S.Rep. No. 108-85, at 22-36.
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United States v. Lara, 541 U.S. 193 (2004)
In April, 2004, the United States Supreme Court issued its
decision in United States v. Lara.\34\ The Lara Court expressed
the view that Congress enjoys ``'plenary' grants of power''\35\
to legislate over matters relating to Indians and clarified its
views of the sources of that power.\36\
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\34\541 U.S. 193 (2004).
\35\Id., at 202; emphasis added.
\36\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, 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 200-201.
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The Lara decision is pertinent to H.R. 505 because in
finding that Congress has the authority to modify 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 Hawai`i, the Northern Mariana Islands, the
Philippines and Puerto Rico.\37\ The Lara Court acknowledged
that Congress' plenary power over Indian affairs, which stems
not only from the Indian Commerce Clause but also the Treaty
Clause and the ``necessary concomitants of nationality,''\38\
includes the power to recognize, terminate and restore the
tribal status of Indian tribes.\39\ In short, the plenary
grants of power described by the Lara Court should be more than
broad enough to encompass the provisions of H.R. 505.
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\37\Id., at 203-4; emphasis added.
\38\Id., at 201-2.
\39\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.
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Legislative History
In the 106th Congress, H.R. 4904 was introduced by
Representative Abercrombie. A companion bill, S. 2899, was
introduced in the Senate. Between August 28 and September 1,
2000, the Committee on Resources held a 5-day joint hearing
with the Senate Committee on Indian Affairs on H.R. 4904 and S.
2899, in Honolulu, Hawai`i, and received extensive oral and
written testimony from witnesses. See S. Hrg. 106-753 and the
addendum printed in S. Hrg. 106-1105. A hearing on S. 2899 was
held in Washington, D.C. on September 14, 2000. See S. Hrg.
106-795. H.R. 4904 was reported by the Committee on Resources
with its accompanying report, H. Rep. No. 106-897, and passed
the House of Representatives on suspension. S. 2899 was
reported from the Committee on Indian Affairs with its
accompanying report, S. Rep. No. 106-424.
In the 107th Congress, H.R. 617 was introduced by
Representative Abercrombie. It was ordered reported by the
Committee on Resources with its accompanying report, H. Rep.
No. 107-140. A companion bill, S. 746 (with its accompanying
report S. Rep. No. 107-66) and S. 1783, were introduced in the
Senate. S. 746 was ordered reported by the Committee on Indian
Affairs.
In the 108th Congress, H.R. 665 and H.R. 4282 were
introduced by Representative Abercrombie. H.R. 4282 was
introduced to reflect negotiations between the State of
Hawai`i, the Hawai`i Congressional delegation and the
Administration. It was ordered reported by the Committee on
Resources with its accompanying report, H. Rep. No. 108-742. A
companion bill, S. 344, was introduced in the Senate. A hearing
was held by the Committee on Indian Affairs on February 25,
2003, and it was ordered reported with its accompanying report,
S. Rep. No. 108-85.
In the 109th Congress, H.R. 309 was introduced by
Representative Abercrombie and referred to the Committee on
Resources. S. 147 was introduced in the Senate, and after a
hearing held on March 1, 2005, the Committee on Indian Affairs
ordered the bill reported from the Committee on Indian Affairs
with its accompanying report, S. Rep. No. 109-68. After S. 147
was reported from the Committee, S. 3064 was introduced to
address concerns raised by the Department of Justice. It was
placed directly on the Senate Legislative Calendar. On June 8,
2006, S. 147 failed to garner the necessary vote to invoke
cloture.
COMMITTEE ACTION
H.R. 505 was introduced on January 17, 2007 by
Representative Abercrombie (D-HI). The bill was referred to the
Committee on Natural Resources on January 17, 2007. On May 2,
2007, the Natural Resources Committee met to consider the bill.
No amendments were offered. The bill was then ordered favorably
reported to the House of Representatives by voice vote. A
companion bill, S. 310, has been introduced in the Senate. The
Committee on Indian Affairs held a hearing on May 3, 2007. It
was reported without amendment to the Senate on May 10, 2007.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 sets forth the short title of the bill as the
``Native Hawaiian Government Reorganization Act of 2007.''
Section 2. Findings
Section 2 sets forth findings, including findings regarding
the history of Native Hawaiians; their interactions with the
United States; Congress' authority over Native Hawaiians;
Congress' past declaration of the political and legal
relationship with Native Hawaiians; and Native Hawaiians
expression of their rights to self-determination, self-
governance, and economic self-sufficiency.
Section 3. Definitions
Section 3 sets forth definitions of terms used in this Act,
including definitions for the term ``Native Hawaiian,'' which
is defined as an individual who is one of the indigenous,
native people of Hawai`i and who is a direct lineal descendant
of the aboriginal, indigenous, native people who resided in the
islands that now comprise the State of Hawai`i on or before
January 1, 1893 and who occupied and exercised sovereignty in
the Hawaiian archipelago, including the area that now
constitutes the State of Hawai`i, or an individual who is one
of the indigenous, native people of Hawai`i and who was
eligible in 1921 for the programs authorized by the Hawaiian
Homes Commission Act or a direct lineal descendant of that
individual.
Section 4. United States policy and purpose
Section 4 reaffirms policies of the United States,
including that Native Hawaiians are indigenous, native people;
the United States has a political and legal relationship with
Native Hawaiians; that Congress has the authority under Article
I, section 8, clause 3 of the United States Constitution to
enact legislation to address the conditions of Native Hawaiians
and has done so in more than 150 Federal laws; that Native
Hawaiians have an inherent right to autonomy in their internal
affairs, an inherent right of self-determination and self-
governance, the right to reorganize a Native Hawaiian governing
entity, and the right to become economically self-sufficient;
and that the United States shall continue to engage in the
process of reconciliation and political relations with Native
Hawaiians.
This section also sets forth the purpose of this Act, which
is to provide a process for the reorganization of a Native
Hawaiian governing entity and the reaffirmation of the
political and legal relationship between the United States and
the Native Hawaiian governing entity.
Section 5. United States Office for Native Hawaiian Relations
Section 5 establishes the United States Office for Native
Hawaiian Relations (Office) in the Office of the Secretary of
the Department of Interior and sets forth the duties of the
Office. The duties include continuing the process of
reconciliation with Native Hawaiians; effectuating and
coordinating the political and legal relationship between the
Native Hawaiian governing entity and the United States;
consulting with the Native Hawaiian governing entity before
taking any actions that may have the potential to significantly
affect Native Hawaiian resources, rights, or lands; consulting
with the Interagency Coordinating Group, other Federal
agencies, and the State of Hawai`i on policies, practices, and
proposed actions affecting Native Hawaiian resources, rights,
or lands; and preparing and submitting an annual report
containing certain information to specified Committees of
Congress and providing recommendations for any necessary
changes to Federal law or regulations. This section does not
apply to the Department of Defense but the Secretary of Defense
may designate one or more officials as liaison to the Office.
Section 6. Native Hawaiian Interagency Coordinating Group
Section 6 establishes the Native Hawaiian Interagency
Coordinating Group, which is 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 Native Hawaiian resources, rights, or lands, and the
Office for Native Hawaiian Relations. The specific duties of
the Interagency Coordinating Group are set forth but,
generally, the Group will coordinate Federal programs and
policies affecting Native Hawaiians. This section does not
apply to the Department of Defense but the Secretary of Defense
may designate one or more officials as liaison to the
Interagency Coordinating Group.
Section 7. Process for the reorganization of the Native Hawaiian
Governing Entity and the reaffirmation of the special political
and legal relationship between the United States and the Native
Hawaiian Governing Entity
Section 7 addresses the process for the reorganization of
the Native Hawaiian governing entity and provides for the
reaffirmation of the political and legal relationship between
the United States and the Native Hawaiian governing entity.
This section recognizes the right of Native Hawaiians to
reorganize a single Native Hawaiian governing entity to provide
for their common welfare and to adopt appropriate organic
governing documents. A Commission is established to prepare and
maintain a roll of the adult members of the Native Hawaiian
community who elect to participate in the reorganization of the
Native Hawaiian governing entity and to certify that the adult
members of the Native Hawaiian community, who have submitted
sufficient documentation and proposed for inclusion on the
roll, meet the definition of ``Native Hawaiian.''
Commission members will be appointed by the Secretary of
the Interior and must have not less than 10 years of experience
in the study and determination of Native Hawaiian genealogy and
an ability to read and translate into English documents written
in the Hawaiian language. Duties of the Commission include
preparing and maintaining a roll of the adult members of the
Native Hawaiian community and certifying to the Secretary that
each of the adult members proposed for inclusion on the roll
meet the definition of ``Native Hawaiian'' set forth in this
Act. The certified roll shall be published in the Federal
Register. An appeal mechanism may be established by the
Secretary for any person whose name is excluded from the roll
but who claims to meet the ``Native Hawaiian'' definition.
The adult members listed on the certified roll may develop
criteria for candidates to serve on the Native Hawaiian Interim
Governing Council, determine the structure of the Council, and
elect members to service on the Council. This section sets
forth the powers and activities of the Council, which include
developing organic governing documents for the Native Hawaiian
governing entity and holding elections to ratify such organic
documents.
Following ratification, the organic governing documents
shall be submitted to the Secretary. The Secretary must certify
that the organic documents contain certain information,
including civil rights protection for citizens of the Native
Hawaiian governing entity and all persons affected by the
exercise of governmental powers and authorities by the Native
Hawaiian governing entity.
Upon certification of the organic governing documents and
the election of officers of the Native Hawaiian governing
entity, the political and legal relationship between the United
States and the Native Hawaiian governing entity will
automatically be reaffirmed and Federal recognition shall be
extended to the Native Hawaiian governing entity.
Section 8. Reaffirmation of delegation of Federal authority;
Negotiations; Claims
Section 8 reaffirms the delegation of authority to the
State of Hawai`i to address the conditions of Native Hawaiians.
It provides that upon reaffirmation of the political and legal
relationship between the United States and the Native Hawaiian
governing entity, the United States and the State of Hawai`i
may negotiate with the Native Hawaiian governing entity on
certain issues. Negotiation topics include 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;
any residual responsibilities of the United States and the
State of Hawai`i; and grievances regarding assertions of
historical wrongs committed against Native Hawaiians by the
United States or by the State of Hawai`i. Upon agreement of any
matters, the parties may submit proposed amendments to Federal
or State law to the Congress or the State of Hawai`i,
respectively. Any governmental power or authority of the Native
Hawaiian governing entity which is currently exercised by the
State or Federal Governments shall only be exercised by the
Native Hawaiian governing entity as agreed to in negotiations
under this section.
Additionally, this section provides that this Act does not
create a cause of action against the United States or any other
entity or person; alter existing law regarding obligations on
the part of the United States or the State of Hawai`i with
regard to Native Hawaiians or any Native Hawaiian entity;
create obligations that did not exist in any source of Federal
law prior to the date of enactment of this Act; or establish
authority for the recognition of more than one Native Hawaiian
governing entity. In addition, nothing in this Act creates any
breach-of-trust actions, land claims, resource-protection or
resource-management claims by or on behalf of Native Hawaiians
or the Native Hawaiian governing entity and the United States
retains its sovereign immunity from suit to any claim that
exists prior to enactment of this Act which could be brought by
Native Hawaiians or a Native Hawaiian governing entity. Any
claims that may have already accrued and may be brought against
the United States shall be rendered nonjusticiable.
The State of Hawai`i also retains its sovereign immunity
unless waived in accordance with State law. Finally, nothing in
this Act may be construed as overriding section 5 of the
Fourteenth Amendment or State sovereign immunity held under the
Eleventh Amendment.
Section 9. Applicability of certain Federal laws
This section prohibits the Native Hawaiian governing entity
and Native Hawaiians from conducting gaming as a matter of
claimed inherent authority or under any Federal law, including
the Indian Gaming Regulatory Act in the State of Hawai`i or
within any other State or Territory of the United States.
The Secretary may not take land into trust for Native
Hawaiians or on behalf of the Native Hawaiian governing entity.
It makes clear that the Indian Trade and Intercourse Act does
not, has never, and will not apply after enactment to lands or
land transfers present, past, or future, in the State of
Hawai`i. If a Court construes otherwise, any land transfers
before the date of enactment of this Act shall be deemed to
have been made in accordance with the Indian Trade and
Intercourse Act.
Only one Native Hawaiian governing entity may be recognized
pursuant to this Act. Any other groups shall not be eligible
for the Federal Acknowledgment Process.
Nothing in this Act alters the civil or criminal
jurisdiction of the United States or the State of Hawai`i over
lands and persons within the State of Hawai`i, unless otherwise
negotiated pursuant to section 8.
Native Hawaiians shall not be eligible for programs and
services available to Indians unless otherwise provided under
applicable Federal law. 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.
Section 10. Severability
The section provides that if any section or provision of
this Act is found to be invalid, the remaining sections or
provisions shall continue in full force and effect.
Section 11. Authorization of appropriations
This section authorizes such sums as necessary to carry out
this Act.
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 Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
FEDERAL ADVISORY COMMITTEE STATEMENT
The functions of the proposed advisory committee authorized
in the bill are not currently being nor could they be performed
by one or more agencies, an advisory committee already in
existence or by enlarging the mandate of an existing advisory
committee.
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 and to provide a process for the recognition by the
United States of the Native Hawaiian governing entity.
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. 505--Native Hawaiian Government Reorganization Act of 2007
H.R. 505 would set forth a process for establishing and
recognizing a Native Hawaiian governing entity that would act
on behalf of its members with the state and the federal
government. CBO estimates that implementing H.R. 505 would cost
about $1 million per year over the 2008-2010 period and less
than $500,000 in each subsequent year, assuming the
appropriation of the necessary funds. Enacting the bill would
not affect direct spending or revenues.
The bill would establish the United States Office for
Native Hawaiian Relations within the Department of the Interior
(DOI). This office 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.
H.R. 505 would also create a nine-member commission responsible
for collecting and certifying a membership roll of adult Native
Hawaiians. Based on the deadlines specified in the bill as well
as information from DOI, CBO expects that this commission would
need three years and three full-time staff to complete its
work.
H.R. 505 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. Any transfer of land
now controlled by the state of Hawaii, would be the subject of
future negotiations.
The CBO staff contacts for this estimate are Daniel Hoople
(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.
EARMARK STATEMENT
H.R. 505 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
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.