[House Report 111-412]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-412
=====================================================================
 
         NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2009

                                _______
                                

  February 22, 2010.--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

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2314]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 2314) to express the policy of the United States 
regarding the United States relationship with Native Hawaiians 
and to provide a process for the recognition by the United 
States of the Native Hawaiian governing entity, 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. 2314 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. 2314 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. 2314 authorizes the federal recognition of 
a Native Hawaiian government.

Historical background

    Native Hawaiians are the indigenous, native people of 
Hawaii, 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 
Natural 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 Hawaii. 
Rather than repeat this detailed history, those documents are 
hereby incorporated into this report. Reference should be made 
to those reports, in particular S. Rept. 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 Hawaii and its annexation by the United 
States five years later; the establishment of the Territory of 
Hawaii in 1900; and, finally, the admission of the State of 
Hawaii into the Union in 1959. The following short summary of 
information places the issue in context.
---------------------------------------------------------------------------
    \1\See ``Legislative History'' below.
---------------------------------------------------------------------------

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 Hawaii (``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 Hawaii to the United States. These lands 
came to be known as the ``Ceded Lands.''

Republic of Hawaii

    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 Hawaii. 
Supporters of this revolutionary movement organized the 
Republic of Hawaii. Notwithstanding strong opposition from 
within the Native Hawaiian community, officials of the Republic 
of Hawaii 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 Hawaii Organic 
Act\3\ establishing a government for the newly created 
Territory of Hawaii.
---------------------------------------------------------------------------
    \2\30 Stat. 750 (July 7, 1898).
    \3\31 Stat. 141 (April 30, 1900).
---------------------------------------------------------------------------

Hawaiian Homes Commission Act

    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\
---------------------------------------------------------------------------
    \4\H. Rept. 66-839 (1920).
    \5\Id., at 5.
    \6\42 Stat. 108 (July 9, 1921).
    \7\Id., Sec. 203.
    \8\H. Rept. 66-839, at 11 (1920).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\H. Rept. 66-839, 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 programs for Native Hawaiians are 
fully supported by history and ``an extension of the same 
idea'' that supports such programs for other Indians.\10\
---------------------------------------------------------------------------
    \10\Hearings before the Committee on the Territories, House of 
Representatives, 66th Cong., 2d Sess., on Proposed Amendments to the 
Organic Act of the Territory of Hawaii, February 3, 4, 5, 7, and 10, 
1920, at 129-30 (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 Hawaii 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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \11\25 U.S.C. Sec. Sec. 334, 348, 349, 354, e.g.
    \12\42 Stat. 1222, Sec. 3 (Feb. 3, 1923).
    \13\Office of State Planning, Office of the Governor, State of 
Hawaii, Pt. 1, Report on Federal Breaches of the Hawaiian Home Lands 
Trust, 4-6 (1992).
---------------------------------------------------------------------------

Hawaii Admission Act

    Congress again recognized the unique status of Native 
Hawaiians when Hawaii gained Statehood in 1959. Upon its 
admission into the Union of States, the Ceded Lands were 
conveyed to the State of Hawaii.\14\ Section 5(f) of the Hawaii 
Admission Act requires that the Ceded Lands and the revenues 
derived therefrom be held by the State of Hawaii 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 Hawaii 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.
---------------------------------------------------------------------------
    \14\Section 5 of Public Law 86-3, (March 18, 1959) (the ``Hawaii 
Admission Act'').
    \15\Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
    \16\Id., Sec. 4.
    \17\42 Stat. 108 (July 9, 1921).
---------------------------------------------------------------------------
    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 Hawaii 
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 
Hawaii Admission Act provided that the use of the Ceded Lands 
and revenues for any use other than the five specified uses 
shall constitute a 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 reserves 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 Hawaii for breach of the trust 
responsibilities set forth in section 5 of the Hawaii Admission 
Act.\20\ These responsibilities are also enforceable by the 
Native Hawaiian beneficiaries themselves.\21\
---------------------------------------------------------------------------
    \18\Id.
    \19\Public Law 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 Hawaii 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 
Hawaii 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 Hawaii 
Admission Act but which were not Hawaiian Home lands.).
---------------------------------------------------------------------------

1978 Amendments to the Hawaii Constitution

    In 1978, the Hawaii State constitution was amended to 
further the special relationship with Native Hawaiians and to 
protect Native Hawaiian sub-sistence 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.
    Hawaii'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

    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 Hawaii occurred with the active 
participation of agents and citizens of the United States and 
further acknowledges that the Native Hawaiian people never 
directly relinquished their claims to their inherent 
sovereignty as a people over their national lands to the United 
States, either through their government or through a plebiscite 
or referendum.
---------------------------------------------------------------------------
    \22\Public Law 103-150.
---------------------------------------------------------------------------

Reconciliation report

    In response to the Apology Resolution, the Departments of 
the 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 Hawaii. 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

Rice v. Cayetano

    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 Hawaii, 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 Hawaii 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. 2314 would address 
these developments by extending the federal policy of self-
determination and self-governance to Native Hawaiians.
---------------------------------------------------------------------------
    \24\528 U.S. 495 (2000).
    \25\See, Arakaki v. State of Hawaii, 314 F.3d 1091 (9th Cir. 2002) 
(invalidating on similar grounds the requirement that candidates for 
that office to be Native Hawaiian).
---------------------------------------------------------------------------

Congress' plenary authority

    For more than 200 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--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\
---------------------------------------------------------------------------
    \26\417 U.S. 535 (1974).
    \27\Id. at 553, n. 24.
    \28\Id. at 554.
---------------------------------------------------------------------------
    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 report filed with S. 344 during 
the 108th Congress sets 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\
---------------------------------------------------------------------------
    \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. Rept. 108-85, at 22-36.
---------------------------------------------------------------------------

United States v. Lara

    In April, 2004, the United States Supreme Court issued its 
decision in United States v. Lara.\34\ The 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    The Lara decision is pertinent to H.R. 2314 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 Hawaii, the Northern Mariana Islands, the 
Philippines and Puerto Rico.\37\ The 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 Court should be more than broad enough to 
encompass the provisions of H.R. 2314.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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, Hawaii, 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. Rept. 106-897, and passed the House 
of Representatives by voice vote on September 26, 2000. S. 2899 
was reported from the Committee on Indian Affairs with its 
accompanying report, S. Rept. 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. Rept. 
107-140. Companion bills, S. 746 and S. 1783, were introduced 
in the Senate. S. 746 (with its accompanying report S. Rept. 
107-66) 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 Hawaii, 
the Hawaii Congressional delegation and the Administration. It 
was ordered reported by the Committee on Resources with its 
accompanying report, H. Rept. 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. Rept. 108-85.
    In the 109th Congress, H.R. 309 was introduced by 
Representative Abercrombie. 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. 
Rept. 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.
    In the 110th Congress, H.R. 505 was introduced by 
Representative Abercrombie and referred to the Committee on 
Natural Resources. It was ordered reported by the Committee by 
voice vote with no amendments on May 2, 2007, with its 
accompanying report H. Rept. 110-389. On October 24, 2007, H.R. 
505 passed the House of Representatives on a vote of 261 yeas 
and 153 nays. It was placed on the Senate Legislative Calendar. 
A companion bill, S. 310, was introduced in the Senate. After a 
hearing, S. 310 was ordered reported with its accompanying 
report, S. Rept. 110-260.

                            COMMITTEE ACTION

    H.R. 2314 was introduced on May 7, 2009 by Representative 
Abercrombie (D-HI). The bill was referred to the Committee on 
Natural Resources. On June 11, 2009, the Natural Resources 
Committee held a hearing on the bill. On December 16, 2009, the 
Committee met to consider the bill. A motion to postpone 
consideration of H.R. 2314 until February 24, 2010 made by 
Representative Hastings (R-WA) was not agreed to by a roll call 
vote of 9 yeas and 25 nays, as follows:


    A motion to reconsider the vote was made by Representative 
Hastings. A motion to table the motion to reconsider made by 
Representative Miller (D-CA) was agreed to by a roll call vote 
of 23 yeas and 8 nays, as follows:


    An amendment offered by Representative Lamborn (R-CO) to 
require approval of the organic governing documents of the 
Native Hawaiian Governing Entity by a referendum of all 
Hawaiian citizens was not agreed to by voice vote. An amendment 
offered by Representative Broun (R-GA) to grant the Supreme 
Court of the United States original and exclusive jurisdiction 
over any Constitutional challenges to any section or provision 
of the underlying Act was not agreed to by voice vote. An 
amendment offered by Representative Hastings (R-WA) to 
eliminate the gaming prohibition clause was not agreed to by 
voice vote. The bill was then favorably reported to the House 
of Representatives by a roll call vote of 26 yeas and 13 nays, 
as follows:


                      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 2009.''

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 Hawaii and who is a direct lineal descendant 
of the aboriginal, indigenous, native people who resided in the 
islands that now comprise the State of Hawaii on or before 
January 1, 1893 and who occupied and exercised sovereignty in 
the Hawaiian archipelago, including the area that now 
constitutes the State of Hawaii, or an individual who is one of 
the indigenous, native people of Hawaii 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 the Interior and sets forth the duties of the 
Office. These 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii; 
any residual responsibilities of the United States and the 
State of Hawaii; and grievances regarding assertions of 
historical wrongs committed against Native Hawaiians by the 
United States or by the State of Hawaii. Upon agreement of any 
matters, the parties may submit proposed amendments to federal 
or state law to the Congress or the State of Hawaii, 
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 Hawaii 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 Hawaii 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 Hawaii 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 
lands transfers present, past, or future, in the State of 
Hawaii. 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 Hawaii over 
lands and persons within the State of Hawaii, 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. 2314--Native Hawaiian Government Reorganization Act of 2009

    H.R. 2314 would establish a process for a Native Hawaiian 
government to be constituted and recognized by the federal 
government. CBO estimates that implementing this legislation 
would cost about $1 million annually in fiscal years 2010-2012 
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 for 
Native Hawaiian Relations within the Department of the Interior 
(DOI) to consult and coordinate the relationship with the 
Native Hawaiian governing entity. Based on information from 
DOI, CBO expects that the office would require up to three 
full-time personnel. H.R. 2314 also would establish the Native 
Hawaiian Interagency Coordinating Group, consisting of 
officials from interested agencies. Finally, the bill would 
create a nine-member commission responsible for creating and 
certifying a roll of adult Native Hawaiians. Based on 
information from DOI, CBO expects that this commission would 
need three years and three full-time staff to complete its 
work.
    H.R. 2314 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 unit to represent Native Hawaiians. The transfer of 
any land or other assets, including land now controlled by the 
state of Hawaii, would be the subject of future negotiations.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                           EARMARK STATEMENT

    H.R. 2314 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 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.

                            DISSENTING VIEWS

    H.R. 2314 is described by its proponents as legislation to 
recognize Native Hawaiians for the purpose of organizing a 
single governing entity to represent them on a government-to-
government basis with the State of Hawaii and the Federal 
government. This is a circuitous means of saying that H.R. 2314 
creates a Native Hawaiian Indian tribe, one that could enroll 
up to 400,000 members (and more after it is recognized). This 
would be one of the largest tribes in the United States, 
accordingly with the largest expectation of taxpayer dollars 
during a time of historic federal deficits and debt.
    But there is a key difference between the Hawaiian 
``tribe'' recognized under H.R. 2314 and the tribes duly 
recognized through Treaty or Act of Congress: the former is not 
a tribe within the meaning of the Indian Commerce Clause of the 
Constitution (Article I, Section 8) because it does not share 
the historical and political relations of Indian tribes with 
Congress. While proponents often take pains to stress they do 
not propose to recognize a ``tribe,'' but a ``governing 
entity,'' the plain language of H.R. 2314 and the Akaka 
Substitute (discussed below) do extend tribal recognition.
    Proponents argue that Congress possesses broad, plenary 
authority to recognize Indian tribes. They point to a number of 
Acts passed over the years, including some 160 federal programs 
benefiting Native Hawaiians because of their status as Native 
Hawaiians, as evidence that Congress recognizes Native 
Hawaiians' special status. The fact that federal, racially-
based benefits have already been passed is hardly a valid 
argument on the merits for extending recognition to a Native 
Hawaiian tribe. This is like saying that the Democrats' $787 
billion ``stimulus'' is evidence that more federal spending is 
warranted.
    More importantly, the Supreme Court considered a case, Rice 
v. Cayetano, related to this controversy. The lawsuit involved 
a Hawaii state law that limited to Native Hawaiians the 
eligibility to vote in elections for trustees of the Office of 
Hawaiian Affairs (OHA). In a 7-2 decision the Supreme Court 
held that such a restriction is race-based and therefore 
prohibited by the 15th Amendment to the Constitution. Though 
the case did not involve a Native Hawaiian entity specifically 
recognized by Congress, the majority opinion noted that such a 
proposition ``would raise questions of considerable moment and 
difficulty. It is a matter of some dispute . . . whether 
Congress may treat the native Hawaiians as it does the Indian 
tribes.''
    H.R. 2314 purports to recognize a Native Hawaiian tribe, 
but because this would exceed constitutional limits on who 
Congress can recognize as an Indian, it seeks to establish a 
race-based government. For this reason, a majority of the U.S. 
Commission on Civil Rights, which was established pursuant to 
the Civil Rights Act of 1957, recommended ``against passage of 
the Native Hawaiian Government Reorganization Act . . . or any 
other legislation that would discriminate on the basis of race 
or national origin and further subdivide the American people 
into discrete subgroups accorded varying degrees of 
privilege.''
    In the June 11, 2009, hearing on this bill, the testimony 
of Civil Rights Commission Gail Heriot is instructive. She 
describes why granting tribal sovereignty to Native Hawaiians 
does not fit with the islands' history:

          The 1840 Constitution of Hawaii established a 
        bicameral parliament whose members were multi-racial. 
        By 1893 [when Hawaii's ruling monarchy was overthrown], 
        ethnic Hawaiians were a minority of the population. 
        Anyone who was born on Hawaiian soil or who swore 
        allegiance to the Queen was considered a subject of the 
        Queen and hence ``Hawaiian,'' regardless of race. This 
        was no kinship-based tribe. It is thus difficult to 
        argue that ethnic Hawaiians in particular have a right 
        to sovereignty that was violated by the overthrow.
          More important, all of this has been water under the 
        bridge at least since 1959 when Hawaii was made a State 
        . . . On June 27, 1959, 94.3% of Hawaiian voters cast 
        ballots in favor of statehood.

    Despite this overwhelming support for Statehood and one set 
of laws governing all Hawaiians, H.R. 2314 proposes to create a 
two-tiered system of governance in Hawaii based on one's race. 
Worse, it is impossible to say precisely how inclusive the 
entity will be even with respect to Native people of varying 
degrees of Hawaiian ancestry: under H.R. 2314 the governing 
entity may discard the carefully-crafted membership rules after 
it receives federal recognition, and construct an entirely new 
set of membership rules.
The Akaka Substitute
    In the Committee markup of H.R. 2314, Hawaii Congressman 
Neil Abercrombie filed an amendment in the nature of a 
substitute that was informally called the ``Akaka Substitute'' 
after the Senator from Hawaii who oversaw its development. The 
Akaka Substitute was drafted in secret by Hawaiian advocates 
and the Obama Administration, to the exclusion of the 
participation of Hawaii's Governor and Attorney General. Sprung 
upon the Committee just prior to the markup as a kind of 
Midnight Surprise, the Akaka Substitute would have made a bad 
bill even worse.
    As introduced, H.R. 2314 provides that matters such as 
transferring lands and preempting Federal and State civil, 
criminal, and tax jurisdiction, must be subject to negotiation 
with, and the concurrence of, the State of Hawaii and the U.S. 
Congress. The Akaka Substitute would have short-circuited this 
reasonable public process by immediately endowing the Hawaiian 
tribe with the inherent governing powers possessed by other 
recognized tribes, and preempting State civil and tax authority 
without the State's consent.
    The Akaka Substitute was not offered by Mr. Abercrombie in 
a gesture of bipartisanship for which the Gentleman is to be 
commended. It must be noted that it was withdrawn after a 
letter was submitted to the Committee by the Hawaii Attorney 
General on his behalf and Hawaii's Governor. While the Governor 
and Attorney General had been ``strong advocates and supports 
of [Native Hawaiian Recognition legislation] for years'', they 
strongly opposed the Akaka Substitute because it would 
``completely change the nature of the Native Hawaiian governing 
entity.'' In their words:

          These changes, taken together, change the bill from 
        one where the status quo and the relations between the 
        United States, the State of Hawaii, and the Native 
        Hawaiian governing entity can be changed only after 
        negotiations and after passage of implementing 
        legislation, to a model in which the status quo 
        immediately changes, pursuant to an Indian law model.'' 
        (Emphasis in the original). (Letter to Chairman Rahall 
        and Ranking Member Hastings, December 15, 2009).

    If those secretly writing the Akaka Substitute seek to keep 
the Governor and Attorney General in the dark, then what 
exactly is the goal? Unfortunately, we will probably know only 
when H.R. 2314 is brought to the Floor, presumably with another 
substitute amendment drafted behind closed doors. This manner 
of legislating is not worthy of the grave subject matter at 
hand, regardless of one's position on it.
    In the end, if H.R. 2314 passes, the days of this entity 
will be numbered. It may take years and millions of dollars in 
billable hours, but the Supreme Court will perform the job that 
Congress is duty-bound to undertake today: reject a race-based 
governing entity in violation of the Constitution. But how many 
dollars will be spent, and how many racial and political scars 
will be left on Hawaii's citizens when this controversy is 
concluded?
    H.R. 2314 should be soundly rejected.
                                                      Doc Hastings.
    Attachment: Letter from State of Hawaii Attorney General 
Bennett.


