[Senate Report 111-162]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 314
111th Congress                                       
                                 SENATE
 2d Session                                            Report 111-162

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

 
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

                                _______
                                

                 March 11, 2010.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1011]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1011) 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, reports thereon 
with an amendment in the nature of a substitute and recommends 
that the bill as amended do pass.

                                PURPOSE

    The purpose of S. 1011 is to establish a process for the 
reorganization of a Native Hawaiian government and, when that 
process has been completed in accordance with the Act, to 
reaffirm the special political and legal relationship between 
the United States and the Native Hawaiian governing entity for 
purposes of carrying on a government-to-government 
relationship.

                         BACKGROUND AND HISTORY

    S. 1011 is the most recent Senate bill establishing a 
process for reorganizing and recognizing a Native Hawaiian 
governing entity. Similar bills have been introduced since 
1999. These bills are the result of long-standing efforts to 
address the consequences of the 1893 overthrow of the Kingdom 
of Hawaii, an event that officers of the United States 
participated in and encouraged, and to provide a process by 
which to organize a federally recognized native group.
    The language of S. 1011, as introduced, is identical to 
legislative language that was negotiated between the Hawaii 
Congressional Delegation and officials from the Department of 
Justice, the Office of Management and Budget, and the White 
House in the 109th and 110th Congresses. The language is 
intended to address concerns expressed in a July 2005 letter 
from the Administration regarding land claims, as well as the 
bill's impact on military readiness, gaming, and civil and 
criminal jurisdiction in Hawaii.
    In 1993, Congress passed an Apology Resolution (Pub. L. No. 
103-150) in which it apologized on behalf of the United States 
to the Native Hawaiians for the United States' role in the 
overthrow of the Native Hawaiian government and committed the 
United States to supporting reconciliation efforts between the 
United States and the Native Hawaiian people. 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. The result 
of these reconciliation efforts was a joint report, From Mauka 
to Makai: The River of Justice Must Flow Freely, published in 
2000. Since the issuance of the report, the Senators from 
Hawaii have introduced legislation to implement the findings of 
the reconciliation report. This Committee held several hearings 
on the matter and has continued to hold hearings each Congress.
    Native Hawaiians are the native people of Hawaii with whom 
the United States has a special legal and political 
relationship. Since 1921, Congress has repeatedly recognized 
the distinct status of Native Hawaiians. The long-standing 
policy of the United States has been to protect and advance 
Native Hawaiian interests.
    Native Hawaiians continue to suffer the consequences of the 
1893 overthrow of their indigenous government. Today, Native 
Hawaiians continue to have higher rates of poverty and lower 
incomes than non-Native Hawaiians in Hawaii.\1\ Establishing an 
avenue for Native Hawaiians to reorganize and receive Federal 
recognition will provide opportunities for Native Hawaiians to 
preserve their cultural resources, exercise self-governance and 
self-determination, and develop their own solutions to the 
problems faced by their community.
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    \1\The per capita income for Native Hawaiians is almost 35% lower 
than the statewide figure. See Shawn M. Kanaiaupuni et al., Income and 
Poverty Among Native Hawaiians: Summary of Ka Huakai Findings 4 (2005) 
(relying on U.S. Census 2000 data). One in seven Native Hawaiian 
families lives below the poverty level. Id. at 7; see also Income and 
Poverty in Hawaii; 2008, Hawaii Dep't of Bus., Econ. Dev., and Tourism 
1-2 (2008) (citing U.S. Census Bureau data from the 2008 American 
Community Survey).
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Native Hawaiian society before European contact

    Hawaii was originally settled by voyagers from central and 
eastern Polynesia who travelled great distances in double-
hulled voyaging canoes to arrive in Hawaii, perhaps as early as 
300 A.D.
    Hundreds of years of Hawaiian isolation followed the era of 
``long voyages.'' During these centuries, the Native Hawaiians 
evolved a system of self-governance and a highly organized, 
self-sufficient, subsistent social system based on communal 
land tenure, with a sophisticated language, culture, and 
religion. There was no concept of private land ownership in 
early Hawaiian thought. The communal nature of the economy and 
the structure of the society resulted in values strikingly 
different from those prevalent in more competitive Western 
economies and societies.
    Hawaii's social, economic, and political system was highly 
developed and evolving, and its population, conservatively 
estimated to be at least 300,000, was relatively stable before 
the arrival of the first European explorers.\2\
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    \2\See David E. Stannard, Before the Horror: The Population of 
Hawaii on the Eve of Western Contact 59 (1989) (arguing that a 
population estimate of 800,000 is a ``low to moderate estimate'').
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European contact

    Hawaii was ``discovered'' by Europeans in 1778, when 
Captain James Cook of the British Royal Navy landed. In their 
logs and diaries, Captain Cook and his officers referred to the 
people they found in the Hawaiian Islands as ``Indians.''\3\
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    \3\See, e.g., Richard H. Houghton III, An Argument for Indian 
Status for Native Hawaiians: The Discovery of a Lost Tribe, 14 Am. 
Indian L. Rev. 1, 10 & n.74 (citing 3 Captain Cook's Journals 490-91, 
530, 540 (W. Wharton, ed. 1893)).
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    Other foreign vessels soon followed on journeys of 
exploration or trade.\4\ In the years following Cook's arrival, 
warring Hawaiian chiefs used foreign weapons and fought for 
control of Hawaii. In 1810, the Native Hawaiian political, 
economic, and social structure was unified under a monarchy led 
by King Kamehameha I. The authority of the King was derived 
from the gods, and he was a trustee of the land and other 
natural resources of the islands which were held communally.
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    \4\Lawrence H. Fuchs, Hawaii Pono: A Social History 8-10 (1961).
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    Western contact led to a precipitous decline in the Native 
Hawaiian population. Between Cook's arrival in 1778 and 1820, 
disease, famine, and war killed more than half of the Native 
Hawaiian population. By 1866, only 57,000 Native Hawaiians 
lived on the islands, compared to the stable pre-1778 
population of at least 300,000. The impact of Western contact 
was greater than the numbers can convey: old people were left 
without the young adults to support them; children were left 
without parents or grandparents to instill traditional values 
and practices. The result was a rending of the social fabric.
    This devastating population loss was accompanied by 
cultural destruction. Western sailors, merchants, and traders 
did not abide by the Hawaii kapu (taboos) system or religious 
practices. As a result, the chiefs began to imitate the 
foreigners, whose ships and arms were technologically more 
advanced than their own.\5\ The kapu were abandoned soon after 
the death of Kamehameha I.
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    \5\Id. at 8-9.
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    Western merchants also forced rapid change in the islands' 
economy. Initially, Hawaiian chiefs sought to trade for Western 
goods and weapons, taxing and working commoners to obtain the 
supplies and valuable sandalwood needed for such trades. As 
Hawaii's stock of sandalwood declined, so did that trade.\6\ 
However, it was replaced by whaling and other mercantile 
activities.\7\ Soon, more than four-fifths of Hawaii's foreign 
commerce was American; the whaling services industry and 
mercantile business in Honolulu were primarily in American 
hands.\8\ Eventually, the principles of communal ownership and 
cultivation of the land were replaced by a Western system of 
individual property ownership.
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    \6\Melody Kapilialoha MacKenzie, Historical Background, Native 
Hawaiian Rights Handbook 5 (Melody Kapilialoha MacKenzie, ed., 1991).
    \7\Fuchs, supra note 4, at 10-11; Ralph S. Kuykendall & A. Grove 
Day, Hawaii: A History, From Polynesian Kingdom to American State 41-43 
(rev. ed., Prentice-Hall, Inc. 1961).
    \8\Fuchs, supra note 4, at 18-19; MacKenzie supra note 6, at 6, 9-
10.
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The mass privatization of Native Hawaiian land

    As the middle of the 19th century approached, the islands' 
small non-Hawaiian population wielded an influence far in 
excess of its size.\9\ These influential Westerners sought to 
limit the power of the Hawaiian King over their legal rights 
and to implement property law so that they could accumulate and 
control land. These goals were achieved as a result of foreign 
pressure.\10\
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    \9\In the mid-1800s, non-Hawaiians were able to acquire land 
formerly under the control of Native Hawaiians. These non-natives 
sought and were able to ``consolidate their economic gains into 
political dominance.'' Cohen's Handbook of Federal Indian Law 
Sec. 4.07[4][b], at 366-67 (Nell Jessup Newton ed., 2005) [hereinafter 
Cohen's Handbook].
    \10\MacKenzie, supra note 6, at 6.
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    The Westerners' efforts were successful in 1840, when the 
King of Hawaii promulgated a new constitution, establishing a 
hereditary House of Nobles and an elected House of Commons. In 
1842, the King authorized the Great Mahele, the division of 
Hawaii's communal land system into private ownership between 
himself and his royal successors, the chiefs, and the Hawaiian 
government. Ultimately, the Great Mahele led to the transfer of 
substantial amounts of land into Western hands. In 1848, the 
King conveyed about 1.5 million of the approximately 4 million 
acres in the islands to the konohiki (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'').\11\
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    \11\Cohen's Handbook, supra note 9, Sec. 4.07[4][b], at 367 (citing 
Jon Chinen, The Great Mahele 31 (Univ. Haw. Press 1958)).
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    All lands remained subject to the rights of native tenants. 
However, in 1850, after the division was accomplished, an act 
was passed permitting non-natives to purchase land from Native 
Hawaiians in fee simple. This resulted in a dramatic 
concentration of land ownership in plantations, estates, and 
ranches owned by non-natives. The law implementing the Great 
Mahele contemplated that the makaainana (commoners) would 
receive a substantial portion of the distributed lands because 
they were entitled to file claims to the lands that their 
ancestors had cultivated. In the end, however, only 28,600 
acres (less than 1% of the land) were awarded to about 8,000 
individual Native Hawaiian farmers.\12\
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    \12\MacKenzie, supra note 6, at 6-9. The makaainana failed to 
secure a great portion of the land for a number of reasons. Many did 
not know of or understand the new laws, could not afford the survey 
costs, feared that a claim would be perceived as a betrayal of the 
chief, were unable to farm without the traditional common cultivation 
and irrigation of large areas, or were killed in epidemics or migrated 
to cities. Id. at 8.
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United States enters into treaties with Native Hawaiian government

    Ultimately, the 2,000 Westerners who lived on the islands 
obtained much of the profitable acreage from the commoners and 
chiefs. The mutual interests of Americans living in Hawaii and 
those living in the United States became increasingly clear. 
American merchants and planters in Hawaii wanted access to 
mainland markets and protection from European and Asian 
domination.
    The United States developed a military and economic 
interest in placing Hawaii within its sphere of influence. To 
protect its interests, the United States entered into a series 
of four treaties with the Kingdom of Hawaii. American advisors 
urged the King to pursue international recognition of Hawaiian 
sovereignty, backed by an American guarantee of continued 
independence.
    America's political influence in Hawaii was heightened by 
the rapid growth of the island sugar industry which followed 
the Great Mahele. The 1875 Convention on Commercial Reciprocity 
eliminated the American tariff on sugar from Hawaii and 
virtually all tariffs that Hawaii had placed on American 
products.\13\ Critically, it also prohibited Hawaii from giving 
political, economic, or territorial preferences to any other 
foreign power. When the Reciprocity Treaty was extended in 
1887, the United States also obtained the right to establish a 
military base at Pearl Harbor.\14\
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    \13\S. Exec. Doc. No. 52-77, at 160-63 (1893).
    \14\Supplementary Convention, Dec. 6, 1884, U.S.-Haw., art. II, 25 
Stat. 1400 (proclaimed Nov. 9, 1887).
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Overthrow of the Native Hawaiian government

    In 1887, King Kalakaua appointed a prime minister who was 
supported by the Native Hawaiian people and who opposed 
allowing the United States to establish a military base at 
Pearl Harbor as a part of the Reciprocity Treaty. The business 
community, backed by the Honolulu Rifles, a military group 
formed by the children of American missionaries, forced the 
prime minister's resignation and the enactment of a new 
constitution. The new constitution, often referred to as the 
Bayonet Constitution due to the use of military force, reduced 
the King to a figure of minor constitutional importance. It 
extended the right to vote to Western males, whether or not 
they were citizens of the Hawaiian Kingdom, and disenfranchised 
almost all native voters by giving only residents with a 
specified income level or amount of property the right to vote 
for members of the House of Nobles. This resulted in 
representatives of the Westerners taking control of the 
legislature.\15\
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    \15\Nonetheless, at least one scholar has concluded that ``the 
Native Hawaiians still played an active and usually dominant role in 
the politics of the islands, because though the new 1887 Constitution 
increased the political power of the large foreign property-holders in 
various ways, the suffrage was still in native hands. The 1890 census 
reported that 13,593 were registered to vote, and of these 8,777 were 
listed as `natives' and another 777 were `half-castes,' i.e., part-
Hawaiians.'' Jon M. Van Dyke, Population, Voting, and Citizenship in 
the Kingdom of Hawaii, 28 U. Haw. L. Rev. 81, 100 (2005) (internal 
quotation marks, alterations, and citations omitted). The same scholar 
concludes more broadly that it is ``not in doubt'' that ``Native 
Hawaiians constituted the overwhelming majority of the political 
community that participated in the decisionmaking in the Kingdom at the 
time of the 1893 overthrow.'' Id. at 81.
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    In 1891, Queen Liliuokalani came to power. Queen 
Liliuokalani supported promulgating a new constitution that 
would restore absolute control over the legislature to the 
reigning sovereign. Realizing that the Hawaiian monarchy posed 
a continuing threat to the unimpeded pursuit of Western 
interests, the Westerners formed a Committee of Public Safety 
to overthrow the Kingdom of Hawaii. Mercantile and sugar 
interests also favored annexation by the United States to 
ensure access on favorable terms to mainland markets and 
protection from Asian conquest. The American annexation group 
collaborated closely with the United States Minister in 
Hawaii.\16\
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    \16\See 39 L.A. Thurston, Memoirs of the Hawaiian Revolution 230-32 
(1936).
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    On January 16, 1893, at the order of United States Minister 
John Stevens, a contingent of United States Marines from the 
USS Boston marched through Honolulu to a building located near 
both the government building and the palace.\17\ The next day, 
local non-Hawaiian revolutionaries seized the government 
building and demanded that Queen Liliuokalani abdicate the 
monarchy.\18\ Minister Stevens immediately recognized the 
rebels' provisional government and placed it under the United 
States' protection.
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    \17\Id.
    \18\Id.
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    Upon hearing the news, United States President Benjamin 
Harrison promptly sent an annexation treaty to the Senate for 
ratification and denied any United States involvement in the 
revolution. Before the Senate could act, however, President 
Grover Cleveland assumed office and withdrew the treaty; he 
also demanded that the Queen be restored.\19\ But the Senate 
Foreign Relations Committee issued a report ratifying Stevens's 
actions and recognizing the provisional government of Hawaii. 
In doing so, the Senate Foreign Relations Committee described 
the relations between the United States and Native Hawaiian 
government as unique because ``Hawaii has been all the time 
under a virtual suzerainty [a nation controlled by another 
nation] of the United States.''\20\
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    \19\President's Message Relating to the Hawaiian Islands, H. Exec. 
Doc. No. 53-47, at xv (1893) (asserting that the United States ``can 
not allow itself to refuse to redress an injury inflicted through an 
abuse of power by officers clothed with its authority and wearing its 
uniform; . . . the United States can not fail to vindicate its honor 
and its sense of justice by an earnest effort to make all possible 
reparation'').
    \20\S. Rep. No. 53-227, at 21 (1894) (emphasis added).
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Hawaii's path to statehood, 1893-1959

    As a result of this impasse between President Cleveland and 
the Senate, the United States Government neither restored the 
Queen nor annexed Hawaii. The Provisional Government of Hawaii 
called a constitutional convention whose composition and 
members it controlled.\21\ The convention promulgated a 
constitution for the new Republic of Hawaii that imposed 
property and income qualifications as prerequisites for the 
franchise and for holding elected office.\22\ Article 101 of 
the Constitution of the Republic of Hawaii required prospective 
voters to swear an oath of support to the Republic and to 
declare they would not, ``either directly or indirectly, 
encourage or assist in the restoration or establishment of a 
Monarchical form of Government in the Hawaiian Islands.''\23\ 
The overwhelming majority of the Native Hawaiian population, 
who were loyal to their Queen, refused to swear such an oath 
and were effectively disenfranchised.\24\
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    \21\Kuykendall & Day, supra note 7, at 183.
    \22\Id. at 184; MacKenzie, supra note 6, at 13.
    \23\Republic of Haw. Const. art. 101.
    \24\U.S. Dep't of the Interior & U.S. Dep't of Justice, From Mauka 
to Makai: The River of Justice Must Flow Freely 29 (2000) [hereinafter 
Mauka to Makai Report] (citing NoeNoe K. Silva, Kanaka Maoli Resistance 
to Annexation, 1Oiwi: A Native Hawaiian Journal (Dec. 1998)).
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    In 1896, William McKinley was elected President of the 
United States. He quickly sent the Senate another annexation 
treaty. Simultaneously, the Native Hawaiian people adopted 
resolutions which they sent to Congress stating that they 
opposed annexation and wanted to be an independent kingdom.\25\ 
The annexation treaty failed in the Senate because a two-thirds 
majority could not be obtained as required under the Treaty 
Clause of the U.S. Constitution.
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    \25\W.A. Russ, The Hawaiian Republic (1894-1898) 198, 209 (1961). 
The resolutions were signed by 21,269 people, representing more than 
50% of the Native Hawaiian population at that time. Jon M. Van Dyke, 
The Political Status of the Native Hawaiian People, 17 Yale L. & Pol'y 
Rev. 95, 103 & n.48 (1998) (citing Dan Nakaso, Anti-Annexation Petition 
Rings Clear, Honolulu Advertiser, Aug. 5, 1998, at 1).
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    However, pro-annexation forces in the House of 
Representatives introduced a Joint Resolution of Annexation 
that could be adopted with only a simple majority in each House 
of Congress. The balance was tipped in favor of the Resolution 
by the United States' entry into the Spanish-American War. 
American troops were fighting in the Pacific, particularly in 
the Philippines, and the United States needed to be sure of a 
Pacific base.\26\ In July 1898, the Joint Resolution was 
enacted, ``the fruit of approximately seventy-five years of 
expanding American influence in Hawaii.''\27\
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    \26\Kuykendall & Day, supra note 7, at 188; MacKenzie, supra note 
6, at 14.
    \27\Fuchs, supra note 4, at 36.
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    On August 12, 1898, the Republic of Hawaii ceded 
sovereignty and conveyed title to its public lands, including 
the Government and Crown Lands, to the United States.\28\ In 
1900, Congress passed the Hawaii Organic Act,\29\ establishing 
a Hawaiian territorial government. Ultimately, Congress 
admitted Hawaii to the Union as the fiftieth state with the 
enactment of the Admission Act in 1959.
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    \28\Joint Resolution for Annexing the Hawaiian Islands to the 
United States, ch. 55, 30 Stat. 750, 751 (1898) (Annexation 
Resolution).
    \29\Act of April 30, 1900, ch. 339, 31 Stat. 141 (Organic Act).
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Continuity of Native Hawaiian identity

    Even after the overthrow of the Hawaiian monarchy, Native 
Hawaiians continued to maintain their separate identity as a 
single distinct political community through cultural, social, 
and political institutions, and through efforts to develop 
programs to provide governmental services to Native Hawaiians. 
For example, the Hawaiian Protective Association--a political 
organization with bylaws and a constitution that sought to 
maintain unity among Native Hawaiians, protect Native Hawaiian 
interests (including by lobbying the legislature), and promote 
the education, health, and economic development of Native 
Hawaiians--was organized in 1914 ``for the sole purpose of 
protecting the Hawaiian people and of conserving and promoting 
the best things of their tradition.''\30\ To this end, the 
Association established twelve standing committees, published a 
newspaper, undertook dispute resolution, promoted the education 
and the social welfare of the Native Hawaiian community, and 
developed the framework that became the Hawaiian Homes 
Commission Act (``HHCA'') in 1921. In 1918, Prince Jonah Kuhio 
Kalanianaole (Prince Kuhio), the Territory of Hawaii's delegate 
to Congress, and other prominent Hawaiians founded the Hawaiian 
Civic Clubs, the goal of which was ``to perpetuate the 
language, history, traditions, music, dances and other cultural 
traditions of Hawaii.''\31\ The clubs' first project was to 
secure enactment of the HHCA, and the clubs remain in existence 
today.
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    \30\Hawaiian Homes Commission Act, 1920: Hearing on H.R. 13500 
Before the S. Comm. on Territories, 66th Cong. 44 (1920) (statement of 
Rev. Akaiko Akana).
    \31\McGregor, Aina Hoopulapula: Hawaiian Homesteading, 24 Hawaiian 
J. of Hist. 1, 5 (1990).
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    Efforts to maintain a distinct political community have 
continued through the 20th century to the present day. Examples 
include the 1988 Native Hawaiian Sovereignty Conference; the 
Kau Inoa initiative, which registers Native Hawaiians for a 
movement toward a Native Hawaiian governing entity; the efforts 
to protect the North West Hawaiian Islands because of their 
cultural and traditional significance; the creation of the 
Office of Hawaiian Affairs, which serves as an entity to 
protect Native Hawaiian interests; and the development of 
traditional justice programs, including a traditional method of 
alternative dispute resolution, ``hooponopono,'' which has been 
endorsed by the Native Hawaiian Bar Association.\32\
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    \32\See Andrew J. Hosmanek, Cutting the Cord: Ho'oponopono and 
Hawaiian Restorative Justice in the Criminal Law Context, 5 Pepp. Disp. 
Resol. L.J. 359 (2005).
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    Moreover, as S. 1011's findings explain, ``the Native 
Hawaiian people have actively maintained native traditions and 
customary usages throughout the Native Hawaiian community, and 
the Federal and State courts have continuously recognized the 
right of the Native Hawaiian people to engage in certain 
customary practices and usages on public lands.''\33\ For 
example, traditional Native Hawaiian fishing and water rights 
are protected by state law,\34\ and a 1978 amendment to the 
Hawaii Constitution specifically protects ahupuaa tenants' 
traditional and customary rights for subsistence, cultural, and 
religious purposes.\35\ Hawaiian courts have also recognized 
and upheld traditional gathering and access rights.\36\ In 
addition, Native Hawaiian traditional practices are often 
permitted on Federal lands, including National Parks.\37\
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    \33\S. 1011, Section 2(12); see also S. 1011, Section 2(18) 
(``Native Hawaiian people are actively engaged in Native Hawaiian 
cultural practices, traditional agricultural methods, fishing and 
subsistence practices, maintenance of cultural use areas and sacred 
sites, protection of burial sites, and the exercise of their 
traditional rights to gather medicinal plants and herbs, and food 
sources.'').
    \34\See, e.g., Haw. Rev. Stat. Sec. 174C-101(c), (d) (stating that 
certain traditional and customary water rights ``shall not be abridged 
or denied,'' or ``diminished or extinguished,'' by provision of the 
State Water Code); id. Sec. 187A-23 (providing for recognition of 
certain ``vested fishing rights'' linked to ``ancient regulations'').
    \35\Haw. Const. art. XII, Sec. 7. In ancient Hawaii, the islands 
were divided into landholding units known as ahupua'a, self-sufficient 
areas that generally ran from the sea to the mountains. In Re 
Boundaries of Pulehunui, 4 Haw. 239 (1879).
    \36\See, e.g., Public Access Shoreline Hawaii v. Hawaii County 
Planning Comm'n, 903 P.2d 1246 (Haw. 1995); State v. Hanapi, 970 P.2d 
485 (Haw. 1998); Kalipi v. Hawaiian Trust Co., 656 P.2d 745 (Haw. 
1982).
    \37\See, e.g., 16 U.S.C. Sec. 396d (Kaloko-Honokohau National 
Historical Park).
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    Further, Native Hawaiian customary law continues to be 
preserved and recognized by Hawaii state courts, notably in the 
areas of property and family law.\38\ Traditional Hawaiian 
usage, in the absence of a statute, is controlling over common 
law to the contrary.\39\ Testimony of kamaaina witnesses, who 
have knowledge of ancient traditions, customs, and usages, may 
be admitted in State-court land disputes.\40\ In addition, 
courts have taken into account a form of customary adoption, 
hanai, in determining, for example, whether a child 
``issue[d]'' from his adoptive parents was entitled to a share 
of their estates,\41\ and in measuring damages for intentional 
infliction of emotional distress.\42\
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    \38\``In modern times the state legislature and courts of Hawaii, 
to a degree not found in any other state, have recognized and supported 
an array of traditional rights relating to beach access, fishing, 
water, access to sacred sites, and language.'' Charles Wilkinson, Blood 
Struggle: The Rise of Modern Indian Nations 371 (2005).
    \39\See Haw. Rev. Stat. Sec. 1-1; In re application of Ashford, 440 
P.2d 76, 77-78 (1968).
    \40\Id.
    \41\O'Brien v. Walker, 35 Haw. 104 (Haw. Terr. 1939).
    \42\Leong v. Takasaki, 520 P.2d 758, 767 (Haw. 1974).
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    These practices and legal protections further reinforce the 
Native Hawaiian community's continuing status as a distinctly 
native community.

  RECOGNITION BY THE UNITED STATES OF OBLIGATIONS TO NATIVE HAWAIIANS

    In keeping with the special status generally accorded other 
native groups, Congress has recognized the distinct status of 
the Native Hawaiians by ``extend[ing] services to [them]'' on 
the basis of that status, recognizing that they are ``the 
native people of a prior-sovereign nation with whom the United 
States has a special political and legal relationship.''\43\ As 
evidence of this special relationship, Congress has enacted 
more than 150 laws addressing the conditions of Native 
Hawaiians and providing them with benefits. Two important 
examples--the Hawaiian Homes Commission Act and the Hawaii 
Admission Act--are discussed in the next two sections. However, 
numerous other examples of Congress's recognition of the 
distinct status of the Native Hawaiians could be cited, 
including the Native American Language Act of 1990, which 
recognized and clarified the language rights of American 
Indians, Alaska Natives, and Native Hawaiians and explicitly 
allowed exceptions to teacher certification requirements for 
instruction in Native American languages; the Native Hawaiian 
Education Act of 1988 (Title IV of the Augustus F. Hawkins-
Robert T. Stafford Elementary and Secondary School Improvement 
Amendments of 1988) which awarded $30 million annually in 
competitive education grants to programs benefitting Native 
Hawaiian students; the Native Hawaiian Assessment Project of 
1983; the Native Hawaiian Health Care Improvement Act; the 
Native American Graves Protection and Repatriation Act; and the 
Native American Housing Assistance and Self-Determination Act 
of 1996.
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    \43\S. 1011, Section 2(23)(C); see, e.g., Brief of United States at 
4-5, 16 & nn.2-4, Rice v. Cayetano, 528 U.S. 495 (2000) (citing 
statutes in which Congress ``established special Native Hawaiian 
programs in the areas of health care, education, employment, and 
loans''; sought ``to preserve Native Hawaiian culture, language, and 
historical sites; and ``by classifying Native Hawaiians as Native 
Americans . . . extended to Native Hawaiians many of the same rights 
and privileges accorded to American Indian, Alaska Native, Eskimo, and 
Aleut communities.) (internal citations and quotation marks omitted).
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Hawaiian Homes Commission Act

    Congress explicitly recognized the existence of a special 
legal and political relationship between the Native Hawaiian 
people and the United States with the enactment of the Hawaiian 
Homes Commission Act in 1921. Prior to enactment of this law, 
Congress received testimony from Executive Branch officials 
analogizing the Federal Government's relationship with, and 
responsibilities to, Native Hawaiians to its relationship with 
other Native Americans.
    As described above, beginning in the early 1800s, large 
amounts of land in Hawaii were made available to foreigners and 
were eventually leased to them to cultivate pineapple and sugar 
cane. Large numbers of Native Hawaiians were forced off the 
lands that they had cared for and traditionally occupied. Many 
of these Native Hawaiians moved into the urban areas, often 
living in severely overcrowded tenements and contracting 
diseases for which they had no immunities.
    By 1920, due to the dramatic decline in the number of 
Native Hawaiians in the decades leading up to and following the 
overthrow of the monarchy, many concluded that if the native 
people of Hawaii were to be saved from extinction, they had to 
have the means of regaining their connection to the land, the 
aina.\44\ In hearings on the matter, Secretary of the Interior 
Franklin Lane explained the special relationship on which the 
statute was premised:
---------------------------------------------------------------------------
    \44\The legislative history of the HHCA includes numerous 
references to the Native Hawaiian community as a ``race'' or a ``dying 
race.'' See, e.g., H.R. Rep. No. 66-839, at 2 (1920). This is 
consistent with the way Federal officials referred to Indian tribes 
during the same period. See, e.g., United States v. Sandoval, 231 U.S. 
28, 46 (1913) (referring to ``these remnants of a race once powerful, 
now weak and diminished in numbers'' (quoting United States v. Kagama, 
118 U.S. 375, 384 (1886)); United States v. Rickert, 188 U.S. 432, 437 
(1903) (referring to the ``weakness and helplessness'' of ``this 
dependent race'') (internal citation omitted)). The HHCA legislative 
history also refers to Native Hawaiians as a ``people.'' See, e.g., 
H.R. Rep. No. 66-839, at 3 (1920) (referring to Native Hawaiians as ``a 
dying people''); id. at 4 (referring to Native Hawaiians as a ``noble 
people''). This locution also was used with regard to Indian tribes. 
See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).

          One thing that impressed me . . . was the fact that 
        the natives of the island, 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.\45\
---------------------------------------------------------------------------
    \45\H.R. Rep. No. 66-839, at 4 (1920).

    Secretary Lane explained that special programs for Native 
Hawaiians are fully supported by history and ``an extension of 
the same idea'' that supports such programs for other 
Indians.\46\
---------------------------------------------------------------------------
    \46\Proposed Amendments to the Organic Act of the Territory of 
Hawaii: Hearings Before the H. Comm. on the Territories, 66th Cong. 
129-31 (statement of Secretary Lane that ``[w]e have got the right to 
set aside these lands for this particular body of people, because I 
think the history of the islands will justify that before any tribunal 
in the world,'' rejecting the argument that legislation aimed at ``this 
distinct race'' would be unconstitutional because ``it would be an 
extension of the same idea'' as that established in dealing with 
Indians, and citing a Department of the Interior Solicitor's opinion 
stating that setting aside 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); 
id. 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'').
---------------------------------------------------------------------------
    Senator John H. Wise, a member of the Legislative 
Commission of the Territory of Hawaii, testified before the 
United States House of Representatives as follows:

          The idea in trying to get the lands back to some of 
        the Hawaiians is to rehabilitate them. I believe that 
        we should get them on lands and let them own their own 
        homes . . .. The Hawaiian people are a farming people 
        and fishermen, out-of-door people, and when they were 
        frozen out of their lands and driven into the cities, 
        they had to live in the cheapest places, tenements. 
        That is one of the big reasons why the Hawaiian people 
        are dying. Now, the only way to save them, I contend, 
        is to take them back to the lands and give them the 
        mode of living that their ancestors were accustomed to 
        and in that way rehabilitate them.\47\
---------------------------------------------------------------------------
    \47\Id. at 39. Wise's testimony was also quoted and adopted in the 
House Committee on the Territories' report to the full U.S. House of 
Representatives. H.R. Rep. No. 66-839, at 4 (1920).

    In 1920, Prince Kuhio, the Territory's sole delegate to 
Congress, testified before the full U.S. House of 
Representatives: ``[I]f conditions continue to exist as they do 
today, . . . my people . . . will pass from the face of the 
earth.''\48\ Secretary Lane attributed the declining population 
to health problems like those faced by the ``Indian in the 
United States'' and concluded that the Nation must provide 
similar remedies.\49\
---------------------------------------------------------------------------
    \48\59 Cong. Rec. 7453 (1920) (statement of Delegate Jonah Kuhio 
Kalanianaole).
    \49\H.R. Rep. No. 66-839. at 5 (1920) (statement of Secretary 
Lane).
---------------------------------------------------------------------------
    The effort to ``rehabilitate'' Native Hawaiians by 
returning them to the land led Congress to enact the Hawaiian 
Homes Commission Act on July 9, 1921. The Act set aside 
approximately 200,000 acres of the Ceded Lands for homesteading 
by Native Hawaiians.\50\ Congress compared the Act to 
``previous enactments granting Indians . . . special privileges 
in obtaining and using the public lands.''\51\ In support of 
the Act, the House Committee on the Territories recognized 
that, prior to the Great Mahele, Hawaiians had a one-third 
interest in the lands of the Kingdom. The Committee reported 
that the Act was necessary to address the way Hawaiians had 
been short-changed in prior land-distribution schemes.\52\
---------------------------------------------------------------------------
    \50\Hawaiian Homes Commission Act, 1920, Pub. L. No. 67-34, 
Sec. Sec. 203-204, 42 Stat. 108, 109-10.
    \51\H.R. Rep. No. 66-839, at 11 (1920); see id. at 4 (suggesting 
that the HHCA was enacted in part because, after the arrival and 
settlement of foreigners in Hawaii, the Native Hawaiians had been 
``frozen out of their lands and driven into the cities,'' where they 
were ``dying'' as a people).
    \52\Id. at 6-7.
---------------------------------------------------------------------------
    The 1921 Act provides that the lessee must be a Native 
Hawaiian, who is entitled to a lease for a term of ninety-nine 
years, provided that the lessee occupy and use or cultivate the 
tract within one year after the lease is entered into. A 
restriction on alienation, like those imposed on Indian lands 
subject to allotment, was included in the lease. Also, like the 
general allotment acts affecting Indians,\53\ the leases were 
intended to encourage rural homesteading so that Native 
Hawaiians would leave the urban areas and return to rural 
subsistence or commercial farming and ranching. In 1923, 
Congress amended the Act to permit one-half acre residence lots 
and to provide for home-construction loans. Thereafter, the 
demand for residential lots far exceeded the demand for 
agricultural or pastoral lots.\54\
---------------------------------------------------------------------------
    \53\25 U.S.C. Sec. Sec. 331-334, 339, 342, 348, 349, 381 (1998).
    \54\See Mauka to Makai Report, supra note 24, at 36.
---------------------------------------------------------------------------
    During the remainder of the Territorial period and the 
first two decades following statehood, administration of the 
Hawaiian home lands program was inadequately funded, and some 
of the best lands were leased to non-Hawaiians to generate 
operating funds. Little income remained for the development of 
infrastructure or the settlement of Hawaiians on the home 
lands. The lack of resources, combined with questionable 
transfers and exchanges of Hawaiian home lands and a decades-
long waiting list of those eligible to reside on the homelands, 
made the program an illusory promise for most Native 
Hawaiians.\55\ While the Act did not succeed in its purpose, 
its enactment is an express affirmation of the United States' 
special political and legal relationship to and responsibility 
for the Native Hawaiian people.
---------------------------------------------------------------------------
    \55\See id. at 32-37.
---------------------------------------------------------------------------

The Hawaii Admission Act

    As a condition of statehood, the Hawaii Admission Act\56\ 
required the State of Hawaii to adopt the Hawaiian Homes 
Commission Act and imposed a public trust on the lands ceded by 
the United States to the new State. The 1959 Compact between 
the United States and the People of Hawaii by which Hawaii was 
admitted into the Union expressly provides that:
---------------------------------------------------------------------------
    \56\Pub. L. No. 86-3, 73 Stat. 4 (Mar. 18, 1959) (the ``Admission 
Act'').

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

           *       *       *       *       *       *       *

          [Section 5(f).] The lands granted to the State of 
        Hawaii by subsection (b) of this section and public 
        lands retained by the United States under subsections 
        (c) and (d) and later conveyed to the State under 
        subsection (e), together with the proceeds from the 
        sale or other disposition of any such lands and the 
        income therefrom, shall be held by said State as a 
        public trust for the support of the public schools and 
        other public educational institutions, for the 
        betterment of the conditions of native Hawaiians, as 
        defined in the Hawaiian Homes Commission Act, 1920, as 
        amended, for the development of farm and home ownership 
        on as widespread a basis as possible for the making of 
        public improvements, and for the provision of lands for 
        public use. Such lands, proceeds, and income shall be 
        managed and disposed of for one or more of the 
        foregoing purposes in such manner as the constitution 
        and laws of said State may provide, and their use for 
        any other object shall constitute a breach of trust for 
        which suit may be brought by the United States.\57\
---------------------------------------------------------------------------
    \57\Admission Act Sec. Sec. 4, 5(f), 73 Stat. at 5-6 (emphasis 
added).

    These transfers of Federal authority to the new State were 
not discretionary or permissive. The United States is empowered 
to sue to compel compliance with the terms of the trust. For 
example, the Federal courts have noted that the United States 
retains the authority to bring an enforcement action against 
the State of Hawaii for breach of the section 5(f) trust.\58\ 
Moreover, sections 204 and 223 of the Hawaiian Homes Commission 
Act provide that the consent of the Secretary of the Interior 
must be obtained for certain exchanges of land and reserve to 
Congress the right to amend that Act.\59\
---------------------------------------------------------------------------
    \58\Han v. United States, 45 F.3d 333, 337 (9th Cir. 1995).
    \59\With the adoption of its new Constitution, the State of Hawaii 
assumed the responsibility of administering the Ceded Lands in 
accordance with the five purposes set forth in the Admission Act and of 
managing the 203,500 acres of land that had been set aside by Congress 
in 1921 for the benefit of the native people of Hawaii under the 
Hawaiian Homes Commission Act. See Haw. Const. art. XII, Sec. Sec. 2, 
4; id. art. XVI, Sec. 7.
---------------------------------------------------------------------------

Treatment of Native Hawaiians compared to other indigenous groups

    The Hawaiian Homes Commission Act and the Hawaii Admission 
Act--the most significant actions the United States has taken 
to date in respect to the native people of Hawaii--must be 
understood in the context of the Federal policy towards members 
of other native groups.
    In 1921, when the Hawaiian Homes Commission Act was enacted 
into law, the prevailing Federal Indian policy was premised 
upon the objective of breaking up Indian reservations and 
allotting lands to individual Indians. Much of the reservation 
lands remaining after the allotment of lands to individual 
Indians were opened up to settlement by non-Indians and 
significant incentives were authorized to make the settlement 
of former reservation lands attractive to non-Indian settlers. 
A 25-year restraint on the alienation of allotted lands was 
typically imposed. This restraint prevented the lands from 
being subject to taxation by the States, but the restraint 
could be lifted if an individual Indian was deemed to be 
``civilized.'' Once the restraint on alienation was lifted and 
individual Indian lands became subject to taxation, Indians who 
could not pay the property taxes often had their land seized.
    This ``allotment era'' in Federal Indian policy was 
responsible for the alienation of more than half of all Indian 
lands nationwide. Nearly 90 million acres of lands fell out of 
native ownership in less than half a century, and although the 
primary objective of the allotment of lands to individual 
Indians was to ``civilize'' native people, in part by making 
them family farmers, thousands of Indians were rendered not 
only landless but homeless. The fact that the United States 
thought to impose a similar scheme on the native people of 
Hawaii in an effort to ``rehabilitate'' Native Hawaiians by 
returning them to their land is thus readily understandable in 
the context of the prevailing Federal Indian policy in 1921.
    By 1959, when the State of Hawaii was admitted into the 
Union, the Federal policy toward the native peoples of America 
was designed to divest the Federal government of its 
responsibilities for the Indian tribes and their members and to 
transfer many of those responsibilities to the several States. 
A prime example of this Federal policy was the enactment of 
Public Law No. 83-280,\60\ an Act which vested criminal 
jurisdiction and certain aspects of civil jurisdiction over 
Indian lands in certain States. Similarly, in 1959, the United 
States transferred most of its responsibilities related to 
administering the Hawaiian Homes Commission Act to the new 
State of Hawaii and imposed a public trust upon the lands that 
were ceded to the State for five purposes, one of which was the 
betterment of the conditions for Native Hawaiians.
---------------------------------------------------------------------------
    \60\67 Stat. 5884 (1953).
---------------------------------------------------------------------------

CONGRESS'S AUTHORITY TO ENACT REORGANIZATION LEGISLATION FOR THE NATIVE 
                               HAWAIIANS

    For more than two hundred years, Congress, the Executive 
Branch, and the Supreme Court have recognized certain legal 
rights and protections for America's indigenous peoples. The 
United States' interactions with indigenous peoples have varied 
from group to group. Indeed, since the founding of the United 
States, Congress has exercised constitutional authority over 
indigenous affairs and has undertaken enhanced responsibility 
for America's indigenous peoples. This has been done in 
recognition of the sovereignty possessed by the native groups, 
which pre-existed the formation of the United States. 
Congress's exercise of its constitutional authority is also 
premised upon the status of the indigenous peoples as the 
original inhabitants of this Nation who occupied and exercised 
dominion and control over the lands which the United States 
subsequently acquired.

Constitutional sources of Congressional authority to legislate in 
        respect to Native Groups

    It is well-established that ``the Constitution grants 
Congress broad general powers to legislate in respect to Indian 
tribes, powers that [the Supreme Court has] consistently 
described as `plenary and exclusive.'''\61\ As the Court 
explained in United States v. Sandoval, ``in respect of 
distinctly Indian communities the questions whether, to what 
extent, and for what time they shall be recognized and dealt 
with as dependent tribes requiring the guardianship and 
protection of the United States are to be determined by 
Congress, and not by the courts,'' so long as Congress does not 
use this power to ``arbitrarily'' designate a community or body 
of people an Indian tribe.\62\ The Supreme Court has upheld 
Congress's exercise of this power even in the case of a tribe 
that the Court assumed had become ``fully assimilated into the 
political and social life of the State,'' concluding that ``the 
fact that federal supervision over [the tribe] has not been 
continuous'' did not ``destroy[] the federal power to deal with 
them.''\63\
---------------------------------------------------------------------------
    \61\United States v. Lara, 541 U.S. 193, 200 (2004).
    \62\231 U.S. 28, 46 (1913).
    \63\United States v. John, 437 U.S. 634, 652-53 (1978); see also 
Winton v. Amos, 255 U.S. 373, 378 (1921) (The members of the same 
recognized tribe at issue in John had ``adopted the dress, habits, 
customs, and manner of living of the white citizens of the state. They 
had no tribal or band organization or laws of their own, but were 
subject to the laws of the state. They did not live upon any 
reservation, nor did the government exercise supervision or control 
over them.'').
---------------------------------------------------------------------------
    The Supreme Court has historically located the sources of 
Congress's Indian affairs powers in the Indian Commerce 
Clause\64\ and the Treaty Clause.\65\ The Court has also 
recognized that insofar as Indian affairs were traditionally an 
aspect of military and foreign policy, ``Congress' legislative 
authority would rest in part, not upon `affirmative grants of 
the Constitution,' but upon the Constitution's adoption of 
preconstitutional powers necessarily inherent in any Federal 
Government, namely, powers that this Court has described as 
`necessary concomitants of nationality.'''\66\
---------------------------------------------------------------------------
    \64\U.S. Const. art. I, Sec. 8, cl. 3.
    \65\Id. art. II, Sec. 2, cl. 2; see Lara, 541 U.S. at 200; see also 
id. (``The central function of the Indian Commerce Clause, we have 
said, is to provide Congress with plenary power to legislate in the 
field of Indian affairs.'') (internal quotation marks omitted). 
Although ``[t]he treaty power does not literally authorize Congress to 
act legislatively, for it is an Article II power authorizing the 
President, not Congress, `to make Treaties[,]' . . . treaties made 
pursuant to that power can authorize Congress to deal with `matters' 
with which otherwise `Congress could not deal.''' Id. at 201.
    \66\Id.
---------------------------------------------------------------------------
    In addition, the ``existence of federal power to regulate 
and protect the Indians and their property'' is implicit in the 
structure of the Constitution.\67\ ``In the exercise of the war 
and treaty powers, the United States overcame the Indians and 
took possession of their lands, sometimes by force, leaving 
them . . . needing protection. . . . Of necessity the United 
States assumed the duty of furnishing that protection, and with 
it the authority to do all that was required to perform that 
obligation.''\68\ Thus, ``[n]ot only does the Constitution 
expressly authorize Congress to regulate commerce with the 
Indian tribes, but long continued legislative and executive 
usage and an unbroken current of judicial decisions have 
attributed to the United States . . . the power and the duty of 
exercising a fostering care and protection over all dependent 
Indian communities.''\69\
---------------------------------------------------------------------------
    \67\Board of County Comm'rs of Creek County v. Seber, 318 U.S. 705, 
715 (1943).
    \68\Id.
    \69\United States v. Sandoval, 231 U.S. 28, 45-46 (1913); see 
United States v. Kagama, 118 U.S. 375, 384-85 (1886) (``From [the 
Indians'] very weakness[,] so largely due to the course of dealing of 
the federal government with them and the treaties in which it has been 
promised, there arises the duty of protection, and with it the power. . 
. . It must exist in that government, because it never has existed 
anywhere else; because the theater of its exercise is within the 
geographical limits of the United States; because it has never been 
denied; and because it alone can enforce its laws on all the 
tribes.'').
---------------------------------------------------------------------------
    Although the aboriginal ``tribes,'' ``nations,'' or 
``peoples,'' over which Congress exercised its Indian affairs 
authority, were defined in part by common ancestry, the unique 
constitutional significance of such entities derives from their 
separate existence as ``independent political 
communities.''\70\ Native peoples and groups were 
``nations,''\71\ and the relationship between the United States 
and the natives reflected a political settlement between 
sovereigns. The Supreme Court has thus repeatedly made clear 
that Indian tribes are the political and familial heirs to 
``once-sovereign political communities,'' not ``racial 
group[s].''\72\
---------------------------------------------------------------------------
    \70\Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
    \71\Id. at 559-60.
    \72\United States v. Antelope, 430 U.S. 641, 646 (1972); see Fisher 
v. District Ct. of Sixteenth Jud. District of Mont., 424 U.S. 382, 389 
(1976); Morton v. Mancari, 417 U.S. 535, 553-54 (1974); see also 
Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993); 
United States v. Mazurie, 419 U.S. 544, 557 (1975).
---------------------------------------------------------------------------
    Congress has frequently enacted legislation that provides 
for the reorganization of Indian tribes, via an election 
organized by the Secretary of the Interior and the recognition 
of native sovereigns pursuant to its Indian affairs powers. For 
example, the Indian Reorganization Act of 1934 provides that 
``[a]ny Indian tribe shall have the right to organize for its 
common welfare, and may adopt an appropriate constitution and 
bylaws . . . which shall become effective when--(1) ratified by 
a majority vote of the adult members of the tribe or tribes at 
a special election authorized and called by the Secretary [of 
the Interior] under such rules and regulations as the Secretary 
may prescribe; and (2) approved by the Secretary. . . .''\73\
---------------------------------------------------------------------------
    \73\25 U.S.C. Sec. 476(a).
---------------------------------------------------------------------------
    Similarly, Congress has on numerous occasions enacted 
specific statutes that ``restore'' Federal recognition of 
previously ``terminated'' tribes. There are many tribal 
restoration acts throughout Title 25 of the U.S. Code, 
involving interim council elections set up and run by the 
Secretary, with participation based on statutory criteria that 
include lineal descent or required ancestry, as well as other 
indicia of connection to the community. Some of these statutes 
establish a process for nominating and electing members of an 
interim council or body that has responsibility for functioning 
as the acting tribal government and developing proposed 
constitution and bylaws to be voted on by the members in an 
election conducted by the Secretary.\74\ And courts have 
referred approvingly to treaties or laws that promise to 
provide for tribal self-government,\75\ as well as statutes 
that prescribe in detail the structure and operation of tribal 
governments.\76\
---------------------------------------------------------------------------
    \74\See 25 U.S.C. 711
    \75\See Ex Parte Crow Dog, 109 U.S. 556, 568 (1883) (discussing a 
Federal pledge in a treaty to ``secure to'' a tribe ``an orderly 
government, by appropriate legislation thereafter to be framed and 
enacted'').
    \76\See Fletcher v. United States, 116 F.3d 1315, 1327 (10th Cir. 
1997) (discussing approvingly and invoking an Act in which ``Congress . 
. . prescribed the form of tribal government for the Osage Tribe,'' 
including ``establish[ing] the offices of a principal chief, an 
assistant principal chief, and an eight-member Osage tribal council, 
and requir[ing] that elections be held every four years to fill those 
offices'').
---------------------------------------------------------------------------

Native Hawaiians and the meaning of ``Indian Tribes''

    Like the previous Congresses that have enacted legislation 
for the benefit of Native Hawaiians, this Committee concludes 
that the Native Hawaiians are a distinctly native community 
that falls within the scope of Congress's power to legislate in 
respect to ``Indian Tribes.''\77\ The term ``Indian'' was first 
applied by Columbus to the native peoples of the New World 
based on the mistaken belief that he had found a sea route to 
India. The term has been understood ever since to refer to the 
indigenous peoples who inhabited the New World before the 
arrival of the Europeans.\78\ As the original, aboriginal 
occupants of Hawaii before the arrival of the Europeans, the 
Native Hawaiians fall within the scope of the term ``Indian'' 
as used in the Federal Constitution.
---------------------------------------------------------------------------
    \77\U.S. Const. art. I, Sec. 8, cl. 3.
    \78\See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544 (1832) 
(referring to Indians as ``those already in possession [of the land], 
either as aboriginal occupants, or as occupants by virtue of a 
discovery made before the memory of man''); Johnson v. M'Intosh, 21 
U.S. (8 Wheat.) 543, 572-74 (1823) (referring to Indians as ``original 
inhabitants'' or ``natives'' who occupied the New World before 
discovery by ``the great nations of Europe'').
---------------------------------------------------------------------------
    To the framers of the Constitution, an Indian tribe simply 
meant a distinct group of indigenous people set apart by their 
common circumstances.\79\ Because Native Hawaiians today have a 
direct historic, cultural, and land-based link to the 
indigenous people who inhabited and exercised sovereignty over 
the Hawaiian Islands before the first European contact in 1778, 
and because they are determined to preserve and to pass on to 
future generations their native lands and their distinct 
culture, the Native Hawaiian community falls squarely within 
the scope of Congress's power to legislate in respect to 
``Indian Tribes.''
---------------------------------------------------------------------------
    \79\See also Worcester, 31 U.S. (6 Pet.) at 559 (equating Indian 
tribe and Indian nation and defining ``nation'' as a ``people distinct 
from others''); id. at 583 (Indians are ``a separate and distinct 
people'').
---------------------------------------------------------------------------
    Indeed, as the 1993 Apology Resolution and other recent 
Federal statutes extending educational and health benefits to 
Native Hawaiians make clear, Congress has found that: (1) 
Native Hawaiians are ``a distinct and unique indigenous people 
with a historical continuity to the original inhabitants of the 
Hawaiian archipelago'';\80\ (2) Native Hawaiians exercised 
sovereignty over the Hawaiian Islands;\81\ (3) the overthrow of 
the Kingdom of Hawaii was ``illegal'' and deprived Native 
Hawaiians of their right to ``self-determination'';\82\ (4) the 
government installed after the overthrow ceded 1.8 million 
acres of land to the United States ``without the consent of or 
compensation to the Native Hawaiian people of Hawaii or their 
sovereign government'';\83\ (5) ``the indigenous Hawaiian 
people never directly relinquished their claims to their 
inherent sovereignty as a people or over their national lands 
to the United States'';\84\ and (6) ``the Native Hawaiian 
people are determined to preserve, develop and transmit to 
future generations their ancestral territory, and their 
cultural identity in accordance with their own spiritual and 
traditional beliefs, customs, practices, language, and social 
institutions.''\85\
---------------------------------------------------------------------------
    \80\42 U.S.C. Sec. 11701(1); 20 U.S.C. Sec. 7512(1).
    \81\20 U.S.C. Sec. 80q-14(11).
    \82\107 Stat. 1510, 1513 (1993).
    \83\Id. at 1512.
    \84\Id.
    \85\Id. at 1512-13.
---------------------------------------------------------------------------
    Those findings demonstrate that indigenous Hawaiians, like 
numerous tribes in the continental United States, share 
historical and current bonds within their community. Also like 
tribes in the continental United States, Native Hawaiians, 
pursuant to Acts of Congress, have substantial lands set aside 
for their benefit: 200,000 acres of Homes Commission Act land 
on which there are thousands of leases to Native Hawaiians that 
furnish homes to tens of thousands of Hawaiians, and an 
interest in the income generated by 1.2 million acres of public 
trust lands under the Admission Act.
    The fact that the indigenous Hawaiian community does not 
presently have an operating tribal government recognized by the 
Department of the Interior does not remove that community from 
the scope of Congress's Indian affairs power. The Constitution 
does not limit Congress's Indian affairs power to groups with a 
particular government structure. ``[S]ome bands of Indians, for 
example, had little or no tribal organization while others . . 
. were highly organized.''\86\ For example, in United States v. 
John, the Court upheld Congress's power to provide for a group 
of Indians that did not have a Federally recognized tribal 
government, even though Federal supervision had lapsed and a 
measure of assimilation had occurred.\87\ Nor does the 
Constitution limit Congress's power to groups that continue to 
exercise all aspects of sovereignty. European ``discovery'' and 
the establishment of the United States necessarily diminished 
certain aspects of Indian sovereignty.\88\ Thus, under the 
Constitution, ``Federal regulation of Indian tribes . . . is 
governance of once-sovereign political communities.''\89\
---------------------------------------------------------------------------
    \86\Washington v. Washington State Commercial Passenger Fishing 
Vessel Ass'n, 443 U.S. 658, 664 (1979) (footnote omitted).
    \87\437 U.S. 634 (1978).
    \88\Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823); 
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 45 (1831).
    \89\United States v. Antelope, 430 U.S. 641, 646 (1972).
---------------------------------------------------------------------------
    As noted above, the United States' authority over Indian 
affairs does not emanate simply from the Commerce Clause's 
reference to ``Indian Tribes.'' Rather, the Constitution 
implicitly gives Congress power to manage Indian affairs more 
generally.\90\ That power is not limited to native groups that 
exhibit formal governmental structures of modern sovereigns. 
The sovereignty of an indigenous people may be expressed 
through informal structures, as well as through a formal 
government. And the loss of a formal government does not 
preclude future expression of sovereignty through some formal 
governmental structure. In the case of Native Hawaiians, a 
variety of Native Hawaiian organizations have continued to be 
active in a broad range of native political, cultural, 
religious, legal, and land-related matters, and furnish 
vehicles for the expression of self-determination over 
important aspects of Hawaiian affairs, and form an active 
``political'' community.\91\
---------------------------------------------------------------------------
    \90\Board of County Comm'rs of Creek County v. Seber, 318 U.S. 705, 
715 (1943); United States v. Sandoval, 231 U.S. 28, 45-46 (1913); 
United States v. Kagama, 118 U.S. 375, 383-84 (1886).
    \91\Cf. 25 C.F.R. 83.7(c) (discussing political and comparable 
activity as a criterion for Interior Department acknowledgment).
---------------------------------------------------------------------------
    Also instructive is Federal legislation concerning Alaska 
Natives, which reflects Congress's intent to exercise its 
constitutional power and responsibility regarding all the 
Native American groups within the United States. In January 
1932, Representative Howard, Chairman of the House Indian 
Affairs Committee, wrote to Secretary of the Interior Wilbur 
seeking an opinion on the legal status of Alaska Natives. In 
response, Interior Solicitor Finney issued a comprehensive 
opinion, which Secretary Wilbur forwarded to Chairman Howard in 
March 1932. Finney concluded his opinion by stating: ``[I]t is 
clear that no distinction has been made between the Indians and 
other natives of Alaska so far as the laws and relations of the 
United States are concerned whether the Eskimos and other 
natives are of Indian origin or not[,] as they are all wards of 
the Nation, and their status is in material respects similar to 
that of the Indians of the United States.''\92\
---------------------------------------------------------------------------
    \92\53 I.D. 593, 605, 1 Op. Sol. On Indian Affairs 303, 310 (1932).
---------------------------------------------------------------------------
    In 1934, when Congress passed the Indian Reorganization 
Act, the landmark legislation intended to revitalize tribes' 
government-to-government relationship with the United States, 
it defined ``Indian'' to include all aboriginal people of 
Alaska, even though Congress knew that Alaska's aboriginal 
population included Eskimos and Aleuts, two distinct cultural 
and ethnic groups, as well as Indians similar to those in the 
contiguous 48 States.\93\
---------------------------------------------------------------------------
    \93\25 U.S.C. Sec. 479. In 1936, Congress amended the Indian 
Reorganization Act to allow qualifying Alaska Native villages to 
reorganize under that Act. See 25 U.S.C. Sec. 473a.
---------------------------------------------------------------------------
    Like Native Hawaiians, the Eskimo peoples are 
linguistically, culturally, and ancestrally distinct from other 
American ``Indians.'' Yet Native Alaskan villages are Federally 
recognized tribal entities within Congress's Indian affairs 
authority.\94\ Modern scholars typically do not use the word 
``Indian'' to describe Eskimos or the word ``tribe'' to 
describe their nomadic family groups and villages. But the 
Constitution's Framers would not have recognized these kinds of 
distinctions. To them, ``Indians'' were many peoples, with 
distinct languages, cultures, and sociopolitical organizations; 
but for all their distinct cultures and governments, they were 
all ``Indians,'' because they were aboriginal inhabitants of 
the ``New World.'' Because Eskimos--like Native Hawaiians--were 
aboriginal peoples, they too would therefore have been 
considered ``Indians.''\95\ Courts have supported this 
construction by recognizing ``that the term `Indians' includes 
all native people in the United States.''\96\
---------------------------------------------------------------------------
    \94\In 1993, the Department of the Interior included Alaska Native 
villages on the revised list of Federally recognized tribes. Indian 
Entities Recognized and Eligible To Receive Services From the United 
States Bureau of Indian Affairs, 58 Fed. Reg. 54,364 (Oct. 21, 1993).
    \95\See S. Rep. 107-66, at 35 nn.43-44 (2001).
    \96\Jon M. Van Dyke, The Political Status of Native Hawaiian 
People, 17 Yale L. & Pol'y Rev. 95, 146 (1998) (citing Alaska Pac. 
Fisheries v. United States, 248 U.S. 78 (1918); Native Village of 
Tyonek v. Puckett, 957 F.2d 631 (9th Cir. 1992); Alaska Chapter, Assoc. 
Gen. Contractors of Am. v. Pierce, 694 F.2d 1162 (9th Cir. 1982); Pence 
v. Kleppe, 529 F.2d 135 (9th Cir. 1976); Alaska v. Annette Island 
Packing Co., 289 F. 671 (9th Cir. 1923); Cape Fox Corp. v. United 
States, 4 Cl. Ct. 223 (1983); Aguilar v. United States, 474 F. Supp. 
840 (D. Alaska 1979); Eric v. HUD, 464 F. Supp. 44 (D. Alaska 1978); 
Naliielua v. State of Hawaii, 795 F. Supp. 1009 (D. Haw. 1990); Ahuna 
v. Department of Hawaiian Home Lands, 640 P.2d 1161, 1168-69 (Haw. 
1982)).
---------------------------------------------------------------------------
    Although these general principles governing Congress's 
power over Indian affairs are well established in Supreme Court 
decisions, the Court has never specifically considered the 
application of those principles to Native Hawaiians. Most 
recently, in Rice v. Cayetano,\97\ the Court called that 
question ``a matter of some dispute,'' which it did not need to 
decide in that case.\98\ Indeed, the Court specifically 
reserved a number of other important questions in that case, 
such as the extent to which Congress had already exercised or 
delegated such powers.\99\ The Court made clear that its 
opinion ``stay[ed] far off that difficult terrain.''\100\ Thus, 
although the Court struck down a Hawaii law limiting 
eligibility to vote in elections for trustee of the State 
Office of Hawaiian Affairs (OHA), it did so because OHA ``is a 
state agency'' and the elections were ``elections of the State, 
not of a separate quasi sovereign.''\101\ The elections 
therefore had to be open to all citizens of the State of Hawaii 
who were otherwise eligible to vote in statewide 
elections.\102\ By resolving the case on that ground, the Court 
did not need to reach any question about Congress's authority 
to treat Native Hawaiians the same way it treats Indian tribes 
on the continental United States. Nor has the Court returned to 
the issue since.
---------------------------------------------------------------------------
    \97\528 U.S. 495 (2000).
    \98\Id. at 518.
    \99\See id.
    \100\Id. at 519.
    \101\Id. at 520, 522.
    \102\The Court explained that ``[i]f a non-Indian lacks a right to 
vote in tribal elections, it is for the reason that such elections are 
the internal affair of a quasi sovereign;'' the Court did not need to 
rule on the applicability of that principle to Native Hawaiians, 
because it concluded that the election was conducted by the State of 
Hawaii rather than by any such recognized quasi sovereign entity. Id. 
at 520.
---------------------------------------------------------------------------

                          NEED FOR LEGISLATION

    The primary goal of S. 1011 is to establish a process for 
the reorganization of a Native Hawaiian government and to 
reaffirm the special political and legal relationship between 
the United States and the Native Hawaiian governing entity for 
purposes of carrying on a government-to-government 
relationship. Congress has consistently recognized Native 
Hawaiians as among the native peoples of the United States on 
whose behalf it may exercise its powers under the Indian 
Commerce Clause and other relevant provisions of the 
Constitution. But Congress has not yet acted to provide a 
process for reorganizing a Native Hawaiian governing entity.
    That inaction has placed Native Hawaiians at a unique 
disadvantage. Of the three major groups of Native Americans in 
the United States--American Indians, Alaska Natives, and Native 
Hawaiians--only Native Hawaiians currently lack the benefits of 
democratic self-government. In earlier eras, similar 
deprivations wreaked havoc on countless American Indians and 
Alaska Natives. As President Obama recently stated, ``History 
has shown that failure to include the voices of tribal 
officials in formulating policy affecting their communities has 
all too often led to undesirable and, at times, devastating and 
tragic results.''\103\
---------------------------------------------------------------------------
    \103\Memorandum of November 5, 2009--Tribal Consultation, 74 Fed. 
Reg. 57,881, 57,881 (Nov. 9, 2009).
---------------------------------------------------------------------------
    For nearly a half century now, Congress has pursued a 
strong policy of Indian self-determination and self-government, 
with the ``overriding goal of encouraging tribal self-
sufficiency and economic development.''\104\ The results of 
that policy have been striking. As the co-director of the 
Harvard Project on American Indian Economic Development 
recently wrote, ``the evidence is overwhelming that political 
self-rule is the only policy'' that has succeeded in overcoming 
Native Americans' ``social, cultural, and economic 
destruction.''\105\ For Native Americans, economic development 
``is first and foremost a political problem. At the heart of it 
lie sovereignty and the governing institutions through which 
sovereignty can be effectively exercised.''\106\ By 
establishing a process that would lead to the reorganization of 
a sovereign Native Hawaiian government, S. 1011 will finally 
put Native Hawaiians on a par with other Native Americans, 
giving them equal access to the benefits of accountable, local, 
democratic self-rule.
---------------------------------------------------------------------------
    \104\California v. Cabazon Band of Mission Indians, 480 U.S. 202, 
216 (1987) (citing New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 
334-35 (1983); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987); White 
Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980)) (internal 
quotation marks omitted).
    \105\Joseph P. Kalt, Constitutional Rule and the Effective 
Governance of Native Nations, in American Indian Constitutional Reform 
and the Rebuilding of Native Nations 184 (Eric D. Lemont ed., 2006).
    \106\Stephen Cornell & Joseph P. Kalt, Sovereignty and Nation 
Building: The Development Challenge in Indian Country Today, 22 Amer. 
Indian Culture & Res. J. 187, 212 (1998); Charles Wilkinson, Blood 
Struggle: The Rise of Modern Indian Nations 271 (2005) (``Experience in 
Indian economic development . . . has shown that strong and effective 
tribal governments, anchored in tribal culture, are critical for 
economic progress.'').
---------------------------------------------------------------------------
    The Committee recognizes that there is a Federal 
Acknowledgment Process defined by the Department of the 
Interior's regulations in 25 CFR Part 83. However, these 
regulations exclude Native Hawaiians. Thus, legislation is the 
only mechanism available for Congress to recognize Native 
Hawaiians at this time.

                          LEGISLATIVE HISTORY

    S. 1011 was introduced on May 7, 2009, by Senator Akaka for 
himself and Senator Inouye, and referred to the Committee on 
Indian Affairs. Senators Dorgan, Begich, and Murkowski became 
cosponsors on August 5, 2009. A hearing was held before the 
Committee on Indian Affairs on August 6, 2009. On December 17, 
2009, the bill was ordered by the Committee to be favorably 
reported with an amendment in the nature of a substitute. Other 
versions of the bill, S. 381 and S. 708, were introduced but 
not considered by the Committee.
    A House companion measure to S. 1011, H.R. 2314, was 
introduced on May 7, 2009, by Representative Abercrombie for 
himself and Representative Hirono, and referred to the 
Committee on Natural Resources. The Natural Resources Committee 
met to consider the bill on June 11, 2009. On December 16, 
2009, the bill was favorably reported without amendment to the 
House of Representatives by the Yeas and Nays 26-13. On 
February 23, 2010, the House of Representatives considered H.R. 
2314 and passed by the Yeas and Nays 245-164 with an amendment 
in the nature of a substitute offered by Representative 
Abercrombie. Other versions of the bill, H.R. 862 and H.R. 
1711, were introduced but not considered by the Natural 
Resources Committee.

         SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

    A number of amendments were made to S. 1011, all of which 
were included in a substitute amendment accepted by the 
Committee on December 17, 2009. These changes were made to 
address concerns with the legislation, a number of which were 
raised by the Attorney General of the State of Hawaii, to 
further refine the process for reorganization, and to clarify 
definitions, among other issues. The Committee expects the 
language will continue to be modified to bring clarity to some 
issues.

Section 1. Short title

    Section 1 was not amended.

Section 2. Findings

    The findings of the underlying bill were amended to 
reaffirm the authority of Congress to legislate on behalf of 
Native Hawaiians as a distinctly native community. Congress 
exercised this authority in enacting the Hawaiian Homes 
Commission Act (HHCA) to set aside land for Native Hawaiians. 
The changes in the substitute amendment reflect the Native 
Hawaiian people's active commitment to maintaining their native 
traditions, their connection to the indigenous people who 
exercised sovereignty over the Hawaiian Islands, and the 
courts' recognition of their ability to engage in certain 
customary practices on public lands. Because the Native 
Hawaiian people have steadfastly maintained their native 
traditions and customary practices since the overthrow of the 
Kingdom of Hawaii in 1893, there is continuity between the 
native citizens of the Kingdom of Hawaii and their successors, 
the Native Hawaiian people today.

Section 3. Definitions

    Section 3, was amended to redefine those eligible to 
participate in the reorganization of the Native Hawaiian 
governing entity. The definitions of ``adult member'' and 
``Native Hawaiian'' were struck and incorporated into the new 
definition of ``qualified Native Hawaiian constituent''. 
``Native Hawaiian programs or services'' was also struck from 
the section on definitions.
    The term ``Native Hawaiian membership organization'' was 
added to identify organizations through which Native Hawaiians 
have sought to preserve their culture, native traditions, and 
self-governance. These organizations are an important, though 
not the exclusive, means through which Native Hawaiians have 
succeeded in maintaining their native traditions and culture, 
and in giving expression to their rights to self-determination 
and self-governance. Indeed, Congress has relied on such 
organizations to function as official representatives of the 
Native Hawaiian community in other Federal laws. In the Native 
American Graves Protection and Repatriation Act (NAGPRA), for 
example, Native Hawaiian organizations function as 
representatives of the Native Hawaiian community with respect 
to the treatment and protection of Native Hawaiian remains and 
funerary objects, just as Federally recognized Indian tribes 
represent their communities with respect to Indian remains and 
objects.\107\
---------------------------------------------------------------------------
    \107\See 25 U.S.C. Sec. Sec. 3001-3013.
---------------------------------------------------------------------------
    The definition of ``qualified Native Hawaiian constituent'' 
was added to require not only descent from the aboriginal, 
indigenous, native inhabitants of Hawaii, but also maintenance 
of ``a significant cultural, social, or civic connection to the 
Native Hawaiian community.''
    An individual must demonstrate this connection by 
satisfying at least two of ten listed criteria, which include, 
among others, residence in Hawaii, residence on Hawaiian Homes 
Commission Act lands (or status as the child or grandchild of 
such a resident), eligibility to be a beneficiary of Hawaiian 
Homes Commission Act programs, status as the child or 
grandchild of a person with such eligibility, residence or 
ownership interest in ``kuleana land''\108\ that is owned in 
whole or in part by a verified lineal descendant of the person 
who received original title to such land (or status as a child 
or grandchild of a person with such a residence or ownership 
interest), attendance for at least one school year at a school 
or program taught through the medium of the Hawaiian language 
or at a school founded and operated primarily or exclusively 
for the benefit of Native Hawaiians (or status as the child or 
grandchild of a person who attended such a program for at least 
one school year), membership in a Native Hawaiian 
organization,\109\ or recognition as Native Hawaiian and as the 
son or daughter of a person recognized as Native Hawaiian by 
certain other members of the Native Hawaiian community.\110\ 
The inclusion of these criteria will provide that the persons 
who participate in the reorganization of the Native Hawaiian 
governing entity are persons with Native Hawaiian ancestry who 
have established ties to the Native Hawaiian community.
---------------------------------------------------------------------------
    \108\``Kuleana land'' is defined as ``lands granted to native 
tenants pursuant to Haw. L. 1850, p. 202, entitled `An Act Confirming 
Certain Resolutions of the King and Privy Council Passed on the 21st 
day of December, A.D. 1849, Granting to the Common People Allodial 
Titles for Their Own Lands and House Lots, and Certain Other 
Privileges', as amended by Haw. L. 1851, p. 98, entitled `An Act to 
Amend An Act Granting to the Common People Allodial Titles for Their 
Own Lands and House Lots, and Certain Other Privileges' and as further 
amended by any subsequent legislation.'' Kuleana lands are parcels of 
land granted to native Hawaiian tenant farmers between 1850 and 1855. 
From 1845 to 1848, in what is known as the Great Mahele, King 
Kamehameha III divided up land among the Kingdom, high-ranking chiefs, 
and the territorial government, subject to the rights of the native 
tenants. Law of June 7, 1848, reprinted in 2 Rev. Laws Haw. 2152, 2174 
(1925); Mauka to Makai Report, supra note 24. The Act of Aug. 6, 1850 
(the Kuleana Act) provided a process by which native tenants who had 
occupied and improved the land could apply to the Land Commission for a 
royal patent and obtain fee title to those parcels of land. Id. at 24. 
Less than 30,000 acres of land were awarded under the Kuleana Act. 
Cohen's Handbook, supra note 9, Sec. 4.07[4][b], at 367 (citing Jon 
Chinen, The Great Mahele: Hawaii's Land Division 31 (1958)).
    \109\Any person who has been a member since September 30, 2009, of 
two or more Native Hawaiian membership organizations would satisfy the 
requirement of maintaining a significant cultural, social, or civic 
connection to the Native Hawaiian community.
    \110\To execute a sworn affidavit stating that a person is, and his 
or her mother or father is or was, regarded as Native Hawaiian by the 
Native Hawaiian community, the affiant must himself or herself be a 
``qualified Native Hawaiian constituent'' and also must be certified by 
the Commission as ``possessing expertise in the social, cultural, and 
civic affairs of the Native Hawaiian community.'' The Commission should 
construe the latter phrase broadly, to include elders or kupuna; heads 
of extended families; cultural practitioners; leaders and long-standing 
members of Native Hawaiian political, civic, cultural, artistic, 
literary, spiritual, or social organizations; teachers or scholars of 
Native Hawaiian studies, language, or history; and any other qualified 
Native Hawaiian constituent who understands, has daily interactions 
with, and is involved with the social, cultural, or civic life of the 
Native Hawaiian community.
---------------------------------------------------------------------------
    There is precedent for using associative factors such as 
kinship, land, and participation in native organizations to 
determine tribal membership.\111\ The last criterion, 
recognition as Native Hawaiian by the Native Hawaiian 
community, is also akin to criteria used to define membership 
in a native community in other contexts.\112\ The definition of 
``qualified Native Hawaiian constituent'' will ensure that the 
persons who participate in the reorganization of the governing 
entity demonstrate a significant cultural, social, or civic 
connection to the Native Hawaiian community and further ensures 
that the Native Hawaiian governing entity will represent a 
distinctly Native American community.\113\
---------------------------------------------------------------------------
    \111\See, e.g., 25 CFR Sec. 83.7(b)(1)(vii), (2)(iv) (including 
``language'' and ``kinship organization[s]'' among the criteria the 
Department of the Interior considers in determining whether petitioning 
tribes can establish that they are a distinct community). In its tribal 
acknowledgment process, the Department of the Interior has repeatedly 
relied on participation in community organizations as an important 
indicator of the existence of a distinct community. Activities that the 
Department has cited in support of the existence of a community include 
churches, organizations devoted to management of group cemeteries, the 
existence of organized social functions or collective economic 
activity, and organized participation in political activities and 
debate. Branch of Acknowledgment & Research, U.S. Dep't of the 
Interior, Acknowledgment Precedent Manual 26-32 (Draft, Mar. 1, 2002) 
[hereinafter Acknowledgment Precedent Manual]. For example, in 
concluding that it was appropriate to acknowledge the Jena Band of 
Choctaw Indians as a sovereign tribe, the Department cited, among other 
considerations, the Band's collective maintenance of a cemetery and 
associated traditional practices, and the existence of a tribal 
organization that ``conducts Choctaw language and history classes at 
the tribal center after school hours and during the summer.'' Proposed 
Finding for Federal Acknowledgment of the Jena Band of Choctaw Indians, 
59 Fed. Reg. 54,496 (Oct. 31, 1994); see also Final Determination for 
Federal Acknowledgment of the Jena Band of Choctaw Indians, 60 Fed. 
Reg. 28,480 (May 31, 1995) (final acknowledgment). Likewise, the 
ability of leaders to organize a community to address a particular 
issue has been cited as evidence of the existence of internal political 
organization, another criterion for acknowledgment. For example, the 
Acknowledgment Precedent Manual cites the ability of a Narragansett 
leader to organize opposition to the draining of a cedar swamp as 
evidence supporting acknowledgment of that group. Acknowledgment 
Precedent Manual, supra, at 40.
    \112\See, e.g., Alaska Native Claims Settlement Act, 43 U.S.C. 
Sec. 1602(b) (ANCSA).
    \113\See United States v. Sandoval, 231 U.S. 28, 46 (1913) 
(referring to ``distinctly Indian communities''); see also United 
States v. Chavez, 290 U.S. 357, 363 (1933) (same); United States v. 
Candelaria, 271 U.S. 432, 439 (1926) (same).
---------------------------------------------------------------------------

Section 4. United States policy and purpose

    Section 4 was amended to further enumerate portions of the 
Constitution from which Congress derives its authority to deal 
with Native Hawaiians.
    The purpose of the Act is to provide a process for the 
reorganization of a single Native Hawaiian governing entity and 
the reaffirmation of the special political and legal 
relationship between the United States and that Native Hawaiian 
governing entity for purposes of continuing a government-to-
government relationship. In acting to promote Native Hawaiian 
autonomy and self-government, Congress is acting in accord with 
the United States' policy over the last several decades toward 
Indian tribes and Native Americans generally.\114\
---------------------------------------------------------------------------
    \114\See, e.g., Indian Self-Determination and Education Assistance 
Act of 1975, 25 U.S.C. Sec. 450a(a) (recognizing the United States' 
obligation to advance Indian ``self-determination by assuring maximum 
Indian participation in the direction of . . . Federal services to 
Indian communities so as to render such services more responsive to the 
needs and desires of those communities''); Indian Financing Act of 
1974, 25 U.S.C. Sec. 1451 (expressing Congress's policy ``to help 
develop and utilize Indian resources . . . to a point where the Indians 
will fully exercise responsibility for the utilization and management 
of their own resources''); see also Exec. Order No. 13,175, 59 Fed. 
Reg. 22,951 (Nov. 9, 2000) (``The United States recognizes the right of 
Indian tribes to self-government and supports tribal sovereignty and 
self-determination.'').
---------------------------------------------------------------------------

Section 5. United States Office for Native Hawaiian Relations

    Section 5 was amended to require timely notice and 
consultation between the Native Hawaiian governing entity and 
the United States Office for Native Hawaiian Relations before 
beginning any action that may affect Native Hawaiian resources, 
rights, or lands. This section also contained some technical 
amendments.

Section 6. Interagency Coordinating Group

    Section 6 was amended to add the White House Office of 
Intergovernmental Affairs as a co-leader of the Interagency 
Coordinating Group.
    The entities established in sections 5 and 6 provide advice 
and consultation during the formation of the Native Hawaiian 
governing entity and after its recognition by the United 
States. The nature and form of the consultation between these 
entities is expected to parallel the consultation process for 
Indian tribes, which is guided by the requirements of Executive 
Order 13175 and by the President's November 5, 2009 memorandum 
on the implementation of that Order. Executive Order 13175 
requires that Federal agencies have in place a process to allow 
meaningful input from tribes in the development of regulations 
and policies that have significant implications for tribes. The 
Committee anticipates that the consultation envisioned by 
sections 5 and 6 will proceed in a similar manner with regard 
to the Native Hawaiian governing entity.

Section 7. Department of Justice representative

    Section 7 is a new section which requires a Department of 
Justice official to assist the Office for Native Hawaiian 
Relations in the implementation and protection of the rights of 
Native Hawaiians and the Native Hawaiian governing entity. The 
Department of Justice already has an office that performs a 
similar function with respect to the Department's relationship 
with Indian tribes, the Office of Tribal Justice. The Committee 
anticipates that the official designated under this section 
will carry out his or her functions in a similar manner.

Section 8. Process for reorganization and federal recognition

    All portions of section 8 were amended to reflect the 
definition changes in section 3. Section 8 was originally 
section 7 in the introduced version.
    The underlying bill establishes a Commission to prepare and 
maintain a roll of the ``qualified Native Hawaiian 
constituents'' who elect to participate in the reorganization 
of a single Native Hawaiian governing entity. In section 
8(b)(2), the section defining the membership of the Commission, 
the substitute amendment allows for traditional cultural 
experience to be considered in looking at candidates for 
appointment to the Commission.
    Section 8(c)(1), entitled ``Roll'', was amended to allow a 
presumption of meeting the lineal descent requirement for an 
individual presenting evidence that he or she satisfies the 
definition in Section 2 of Public Law 103-150, the Apology 
Resolution. It was also amended to allow an individual's lineal 
ancestors on the 1890 census by the Kingdom of Hawaii shall to 
be considered reliable proof of lineal descent from the 
aboriginal, indigenous, native people who resided in the 
islands that now comprise the State of Hawaii on or before 
January 1, 1893. The substitute amendment further adds a 
provision to allow elderly Native Hawaiians and others lacking 
birth certificates or other documentation to establish lineal 
descent by sworn affidavits from two or more qualified Native 
Hawaiian constituents.
    This subsection was further amended to establish a process 
to ensure authenticity of submitted documents and inform an 
individual whether they have been deemed a qualified Native 
Hawaiian constituent and of their right to appeal if they were 
not. A provision outlining the Secretary's failure to act 
regarding publication of the roll was struck in the substitute 
amendment. The notice of certification of the roll will be 
published in the Federal Register by the Commission, regardless 
of pending appeals. Additional amendments require the 
Secretary, in consultation with the Commission, to establish an 
Administrative appeals process. The Commission must provide a 
copy of the roll and any updated rolls to the Council.
    Section 8(c)(2), renamed ``Organization of Council,'' was 
amended to require the Commission, in consultation with the 
Secretary, to hold a minimum of three meetings of at least two 
working days of the qualified Native Hawaiian constituents 
listed on the roll to develop criteria for candidates, 
determine the structure of the Council, including the number of 
Council members, and to elect Council members from the 
individuals listed on the roll.
    The section was further amended to require the Council to 
perform certain duties as opposed to simply permitting the 
Council to perform such duties. These duties include 
representing those listed on the roll, conducting a referendum 
of those individuals as to the governing documents of the 
Native Hawaiian governing entity, developing proposed organic 
documents based on that referendum, and publishing notice of 
the availability of such documents. The Council may ask the 
Secretary to ensure that draft organic governing documents 
comply with this Act and Federal law.
    Additional subsections were added to this section to 
require the Council, with assistance of the Secretary, to hold 
elections for the purpose of ratifying the proposed organic 
government documents not sooner than 180 days after the 
documents are drafted and distributed and 60 days after 
publishing notice of an election.
    Upon certification of the organic governing documents by 
the Secretary, the Council, with the assistance of the 
Secretary, is now required to hold elections of the officers of 
the Native Hawaiian governing entity. In the introduced 
version, the Council was merely permitted to hold these 
elections. In addition, the Secretary must, within 180 days of 
the Council's submission of the organic governing documents, 
which may be extended an additional 90 days if the Secretary 
deems necessary, certify or decline to certify that the 
documents establish membership criteria for the Native Hawaiian 
governing entity, were adopted by a majority of those listed on 
the roll who voted in the election, and provide for the 
exercise of inherent and other appropriate governmental 
authorities by the Native Hawaiian governing entity. The 
certifications will be deemed to have been made if the 
Secretary does not act within 180 days after the date of the 
Council's submission of the organic governing documents to the 
Secretary. The introduced version of the bill gave the 
Secretary 90 days.
    Additional subsections were added by the substitute 
amendment to require the Council to provide a copy of the roll 
to the governing body of the Native Hawaiian governing entity 
and to terminate the Council after the officers of the 
governing body are elected and installed.
    The final subsection of section 8 was amended to clearly 
state that the special political and legal relationship between 
the United States and the Native Hawaiian people is reaffirmed 
and Federal recognition is extended to the Native Hawaiian 
governing entity as the representative sovereign body of the 
Native Hawaiian people. This occurs only after approval of the 
organic governing documents by the Secretary and installation 
of the officers of the governing body except where expressly 
limited. The Committee expects the Native Hawaiian governing 
entity to have the same aspects of sovereignty as other native 
groups and Indian tribes that have received Federal 
recognition.
    Congress has a long history of enacting such legislation 
under its Indian affairs power. S. 1011's process for 
recognizing a Native Hawaiian governing entity is analogous to 
the process established by prior tribal-reorganization 
legislation, and is also analagous to the process by which the 
United States recognizes Indian tribes. For example, S. 1011 
would establish a roll of Native Hawaiian constituents that 
would define those individuals who are qualified to participate 
in reorganizing the Native Hawaiian governing entity based on 
lineal descent and continued connection to the Native Hawaiian 
community and Native Hawaiian lands.
    The Commission is expected to be an expert body, with 
particular expertise in Native Hawaiian genealogy and culture. 
The Committee recognizes that the task of compiling a roll of 
qualified Native Hawaiian constituents is likely to be complex 
and may require technical decisions as to which individuals 
have a sufficient connection to the Native Hawaiian community, 
based on the criteria set forth in this legislation. The 
Committee expects that courts and government agencies will 
accord significant deference to the Commission's expert 
decisions and will allow the Commission to make eligibility 
decisions in the first instance. There is a provision in 
Section 8(c) for an administrative appeal for any person whose 
name is excluded from the roll.
    Moreover, the Committee emphasizes that the Commission is 
expected to complete a roll of qualified Native Hawaiian 
constituents without delay, to allow the organizing process to 
proceed on schedule. The Committee anticipates that the 
Commission will establish appropriate deadlines, rules of 
procedure, and other requirements to allow the timetables set 
forth in this legislation to be met while giving due 
consideration to the claims of those seeking to be included on 
the roll. The sole purpose of the roll established by the 
Commission is to compile a list of those qualified Native 
Hawaiian constituents who can take part in the initial 
reorganization of a Native Hawaiian government. Prior tribal-
restoration acts have similarly relied on an initial roll in 
determining eligibility to participate in tribal-reorganization 
elections.\115\
---------------------------------------------------------------------------
    \115\See, e.g., 25 U.S.C. Sec. 711b(a), (b).
---------------------------------------------------------------------------
    The substitute amendment permits elderly Native Hawaiians 
and other qualified Native Hawaiian constituents lacking birth 
certificates or other documentation due to birth on Hawaiian 
Home Lands or other similar circumstances to establish lineal 
descent by sworn affidavits from two or more qualified Native 
Hawaiian constituents. This provision was included to address 
cases of hardship, and is not expected to be applied routinely. 
The Committee anticipates that the Commission will establish 
specific prerequisites allowing individuals to demonstrate that 
they are unable to obtain a birth certificate.
    In general, Section 8 calls for the Federal Government to 
play a relatively minor role in setting the rules for the 
election of officers of the Native Hawaiian governing entity. 
In particular, while the Federally created Commission will call 
an initial meeting for persons on the roll, it is these roll 
members who will determine the criteria for candidates to serve 
on the Council, determine the structure of the Council, and 
elect its members. The Committee emphasizes the importance of 
the deadlines established by this legislation. Barring unusual 
circumstances, the existence of pending disputes as to the 
inclusion of particular individuals on the roll should not be 
allowed to delay the reorganization process set forth in this 
section. The degree of Federal involvement contemplated by S. 
1011 is thus consistent with the historical role Congress has 
played in assisting Indian tribes and other native groups in 
reorganizing politically.\116\
---------------------------------------------------------------------------
    \116\See id. Sec. 476(a) (noting that special elections for 
ratifying tribal constitutions and bylaws may be ``authorized and 
called by the Secretary [of the Interior] under such rules and 
regulations as the Secretary may prescribe . . . .''); id. 
Sec. Sec. 711a-711f.
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Section 9. Negotiations and claims

    Section 9 was amended to clarify that in the interim period 
between recognition of the Native Hawaiian governing entity and 
any agreements between the three sovereigns, the Native 
Hawaiian governing entity would, unless expressly limited, 
exercise powers and authorities typically exercised by Indian 
tribes and native groups recognized by the United States. This 
section was further amended to specify that State of Hawaii 
lands and surplus Federal lands would be part of the 
negotiations among the three governments.
    Section 9(b)(3) was amended to clarify that the Native 
Hawaiian governing entity would be vested with the inherent 
powers of a native government, modifiable only by agreement 
among the three governments. Nothing in the Act, unless agreed 
upon, preempts Federal or State authority over Native Hawaiians 
or their property or authorizes the State to tax or regulate 
the Native Hawaiian governing entity.
    A subsection was added to reaffirm that once the Native 
Hawaiian governing entity is extended federal recognition, it 
retains the inherent authority to determine its own membership, 
membership criteria, and whether to grant, deny, revoke, or 
qualify membership without regard to the definitions in this 
Act.
    A subsection on ``Claims'' was amended to confirm and 
clarify that nothing in this Act alters the obligations of the 
United States or the State of Hawaii relating to events that 
occurred prior to recognition of the Native Hawaiian governing 
entity. It clarifies that nothing creates, enlarges, revives, 
modifies, diminishes, extinguishes, waives, or otherwise alters 
any claim or cause of action against the United States or its 
officers or the State of Hawaii or its officers, or any defense 
to any such claim or cause of action, or amends any Federal 
statute except as expressly amended by this Act.
    In general, Section 9 affirms the inherent powers and 
privileges of the Native Hawaiian governing entity upon Federal 
recognition. The specific demarcations of authority among the 
State, the Native Hawaiian sovereign, and the United States are 
most appropriately determined by agreement among those three 
sovereigns, as provided for by Section 9(b). Recognition of the 
Native Hawaiian sovereign is a necessary precondition to 
negotiating such an agreement.
    It is the Committee's expectation that the parties will 
engage in these negotiations in good faith to resolve the 
issues in a just manner, accounting for the unique history and 
circumstances of the Native Hawaiian people. This should be 
done without compromising the inherent authority of the Native 
Hawaiian governing entity to exercise those powers, privileges, 
and immunities typically exercised by governments representing 
the native peoples of the United States. Historically, when 
Congress has enacted legislation allowing for the 
reorganization of native governments, it has recognized that 
those governments are vested with inherent tribal authority 
under existing Federal law.\117\
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    \117\See Indian Reorganization Act of 1934, 25 U.S.C. Sec. 476(e)-
(h); Amendment to Indian Reorganization Act for Alaska (1936), 25 
U.S.C. 473a.
---------------------------------------------------------------------------
    Although, the substitute amendment made improvements to 
clarify the provisions of the bill, the Committee believes that 
this section would benefit from further clarifying certain 
limitations on the interim powers of the Native Hawaiian 
governing entity during the period prior to the completion of 
negotiations. Any such limitations would be intended to be 
temporary, remaining in place until such time as the 
negotiations are concluded and any necessary implementing 
legislation is enacted. Limitations that may be placed on the 
inherent powers of the Native Hawaiian governing entity during 
the period of negotiations may include the following: that (1) 
there will be no ``Indian country'' or territory akin to 
``Indian country'' over which the governing entity may assert 
governmental authority;\118\ (2) the United States will not 
take land into trust for the Native Hawaiian government or its 
members; (3) that while the Native Hawaiian government will be 
able to exercise jurisdiction or authority over its own members 
(membership being voluntary), it will lack any territory-based 
jurisdiction or authority; (4) the Native Hawaiian governing 
entity will not be able to exercise jurisdiction or authority 
over nonmembers (or entities owned wholly or mostly by 
nonmembers) without their express consent; (5) individual 
Native Hawaiians will continue to be subject to the civil and 
criminal jurisdiction of Federal and State courts; and (6) the 
State can continue to regulate and tax individual Native 
Hawaiians and their property. In the substitute amendment, 
these points are for the most part not express, but may be 
inferred from paragraphs (1) to (4) of Section 9(b). The 
Committee believes that the Act could benefit from making these 
points express.
---------------------------------------------------------------------------
    \118\``Indian country'' is a term codified by Federal statute. 18 
U.S.C. Sec. 1151. Although section 1151 defines ``Indian country'' for 
the purpose of delineating the scope of Federal criminal jurisdiction 
over Indians, the Supreme Court has applied the definition to determine 
the scope of tribal territorial jurisdiction, as well. Alaska v. Native 
Village of Venetie Tribal Gov't, 522 U.S. 520, 527 (1998); DeCoteau v. 
District County Ct. for the Tenth Jud. District, 420 U.S. 425, 427 n.2 
(1975).
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    Further, any such interim limitations are not intended to 
express the will of Congress with respect to the inherent 
powers and privileges of native self-government that may be 
properly exercised by the Native Hawaiian governing entity 
following the negotiations and the enactment of any 
implementing legislation.
    The inherent powers and privileges of self-government that 
vest in the Native Hawaiian governing entity upon Federal 
recognition include, but are not limited to, Native Hawaiians' 
inherent right to autonomy in their internal affairs, and their 
inherent right to self-determination and self-governance. This 
inherent, internal power of self-government, includes, but is 
not limited to, the power to operate under a form of government 
of the Native Hawaiians' choosing, the power to define 
conditions of membership,\119\ the authority to regulate 
domestic relations of members,\120\ the power to provide 
governmental programs and services to members, and sovereign 
immunity.
---------------------------------------------------------------------------
    \119\See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978). 
Membership in the Native Hawaiian governing entity will be voluntary, 
paralleling the applicable rule for tribes. Accordingly, no person 
could be involuntarily subject to the governing entity's inherent 
powers and privileges.
    \120\ See Fisher v. District Ct. of the Sixteenth Jud. District of 
Mont., 424 U.S. 382, 387-89 (1976) (per curiam).
---------------------------------------------------------------------------
    During this initial period of negotiation between Federal 
recognition and any implementing legislation, the substitute 
amendment protects the authority and interests of the State of 
Hawaii by providing that ``nothing in this Act shall preempt 
Federal or State authority over Native Hawaiians or their 
property under existing law.''
    The final clause of Section 9(b)(3) is designed to 
safeguard the governing entity's independence from State and 
local taxation and regulation when it undertakes core 
governmental functions. The scope of this protection, once 
again, is not express, but may be inferred from Section 
9(b)(1)-(4), as well as from Federal common law regarding the 
authority of States to tax and regulate tribes in analogous 
situations.\121\
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    \121\Cf. John v. Baker, 982 P.2d 738 (Alaska 1999) (analyzing a 
Federally recognized Native tribe's inherent sovereign powers outside 
of Indian country), cert. denied, 528 U.S. 1182 (2000).
---------------------------------------------------------------------------
    The Act would benefit from clarifying the scope of the 
Native Hawaiian governing entity's immunity from State 
regulation and taxation. Such a clarification could provide 
that the State have the ability during the interim period to 
regulate and tax the non-governmental activities and property 
of the Native Hawaiian governing entity (and of entities owned 
by the Native Hawaiian governing entity). Such a clarification 
should continue, however, to prohibit the State from regulating 
or taxing governmental, nonbusiness, noncommercial activities 
undertaken by the Native Hawaiian governing entity (or by 
entities wholly owned by the Native Hawaiian governing entity). 
Such activities would include the provision of health care, 
housing and public safety to members of the Native Hawaiian 
governing entity, and activities that support those and similar 
government functions. It is unlikely that the Native Hawaiian 
governing entity's governmental, nonbusiness, noncommercial 
activities would have much impact on anyone other than its own 
Native Hawaiian members. So this potential clarification of the 
State's power to tax and regulate the Native Hawaiian governing 
entity during the interim period would be a narrow one and 
would prevent the State from unduly interfering with Native 
Hawaiians' inherent rights to autonomy in their internal 
affairs, to self-determination, and to self-governance.
    In addition, upon Federal recognition, the Native Hawaiian 
governing entity would be entitled to sovereign immunity from 
suit.\122\ The common-law sovereign immunity possessed by 
tribes is a ``necessary corollary to Indian sovereignty and 
self-governance.''\123\ Immunities have a range of functions, 
including preventing ``distraction of officials from their 
governmental duties, inhibition of discretionary action, and 
deterrence of able people from public service.''\124\ In 
upholding tribal sovereign immunity, courts have recognized 
Congress's desire, expressed through legislation, to promote 
the ``goal of Indian self-government, including its `overriding 
goal' of encouraging tribal self-sufficiency and economic 
development.''\125\ Accordingly, the Committee believes that 
the Native Hawaiian sovereign should enjoy the same immunity 
from lawsuits in Federal and State courts that sovereign Indian 
tribes and native groups in the continental United States 
enjoy.\126\
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    \122\See Kiowa Tribe of Oklahoma v. Mfg. Techs, Inc., 523 U.S. 751, 
764 (1997); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). 
Tribal sovereign immunity applies to activities either within or 
outside Indian country. See Kiowa Tribe, 523 U.S. at 764; Runyon ex 
rel. B.R. v. Ass'n of Village Council Presidents, 84 P.3d 437, 439 & 
nn.3-4 (Alaska 2004).
    \123\Three Affiliated Tribes of Fort Berthold Reservation v. Wold 
Eng'g, 476 U.S. 877, 890 (1986) (citing Santa Clara Pueblo v. Martinez, 
436 U.S. 49 (1978)).
    \124\Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).
    \125\Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of 
Okla., 498 U.S. 505, 510 (1991) (quoting California v. Cabazon Band of 
Mission Indians, 480 U.S. 202, 216 (1987)).
    \126\As is the case for Indian tribes generally, the Native 
Hawaiian governing entity could waive its sovereign immunity (by 
contract or by statute), provided that it does so clearly and 
unequivocally; and the Native Hawaiian governing entity would not be 
immune from any lawsuit brought by the United States in any Federal 
court. Furthermore, real property owned in fee simple by the Native 
Hawaiian governing entity would not be immune from any in rem action 
filed by the State. See County of Yakima v. Confederated Tribes, 502 
U.S. 251, 265 (1992); Keweenaw Bay Indian Cmty. v. Rising, 477 F.3d 
881, 894-95 (6th Cir. 2007).
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    Likewise, the Committee believes that officers and 
employees of the Native Hawaiian governing entity should enjoy 
the same common-law immunities as the officers and employees of 
any Indian tribe. These immunities are similar to those enjoyed 
by officers and employees of State governments. As with tribal 
officers, officers of the Native Hawaiian governing entity 
might be sued for declaratory or injunctive relief under 
principles akin to the doctrine of Ex parte Young.\127\ As is 
also the case with Indian tribal officers, in some 
circumstances an official of the Native Hawaiian sovereign who 
acts outside the scope of his or her authority might be liable 
to a suit for money damages. For example, the Committee 
believes that a Native Hawaiian legislator could not be sued 
for libel based on statements made in the course of 
deliberations by the sovereign's legislative body, as the 
immunity of the Native Hawaiian sovereign would encompass such 
conduct. But if an official of the Native Hawaiian governing 
entity were to defraud a State agency for personal profit in 
violation of State law, he or she would not have individual 
immunity for such conduct.
---------------------------------------------------------------------------
    \127\Ex parte Young, 209 U.S. 123 (1908).
---------------------------------------------------------------------------
    Absent sovereign immunity and protection of the core 
governmental functions of the Native Hawaiian governing entity 
from State taxation and regulation, the State could wield vast 
power against the governing entity. That imbalance would give 
the State little incentive to negotiate for a fair, long-term 
allocation of powers, authorities, and immunities among the 
three sovereigns.
    At some point after the United States' initial recognition 
of the newly reorganized Native Hawaiian governing entity, 
negotiations among the three sovereigns--the United States, the 
State of Hawaii, and the Native Hawaiian governing entity--
could alter many of the above-discussed ground rules that are 
implicit in section 9(b) of the substitute amendment. For 
example, if the three sovereigns eventually agreed to the 
creation of Indian country within the State of Hawaii, and 
legislation was enacted to implement that agreement, it is 
possible that the Native Hawaiian governing entity could then 
exercise certain limited types of authority or jurisdiction 
over nonmembers.
    Once the Native Hawaiian governing entity is reorganized, 
the United States will recognize and affirm the entity's 
inherent power and authority (akin to the inherent power and 
authority of any Indian tribe) to determine its own membership 
criteria, to determine its own membership, and to grant, deny, 
revoke, or qualify membership without regard to whether any 
person was or was not deemed to be a ``qualified Native 
Hawaiian constituent'' under this Act. Membership criteria set 
forth in the Native Hawaiian governing entity's organic 
governing documents should provide that membership is voluntary 
and can be relinquished, as is typically the case with Indian 
tribes.
    As noted in section 9(c), this legislation does not provide 
the basis for the Native Hawaiian governing entity or other 
Native Hawaiian groups to relitigate claims that have already 
been resolved by the courts or to retroactively impose new 
obligations on the Federal Government or the State of Hawaii. 
Native Hawaiian claims--in contrast to those of most newly 
recognized tribes--have been extensively litigated over the 
past 100 years. There has been extensive litigation relating to 
land claims, claims for money damages, and other types of 
claims, dating back at least to 1908.\128\ The Committee 
envisions that issues concerning asserted historic or moral 
wrongs may be the subject of negotiations among the Native 
Hawaiian governing entity, the State of Hawaii, and the United 
States, together with the other issues encompassed within the 
process set forth in section 9(b) of this Act, and that such 
negotiations will provide an appropriate forum in which to 
address these claims questions.
---------------------------------------------------------------------------
    \128\E.g., Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 
(2009); Han v. Department of Justice, 824 F. Supp. 1480, 1486 (D. Haw. 
1993), aff'd, 45 F.3d 333 (9th Cir. 1995); Keaukaha-Panaewa Cmty. Ass'n 
v. Hawaiian Homes Comm'n, 588 F.2d 1216, 1224 n.7 (9th Cir. 1979); Na 
Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995); 
Liliuokalani v. United States, 45 Ct. Cl. 418 (1910); see also Burgert 
v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661 (9th Cir. 2000); 
`Ohana v. United States, 76 F.3d 280 (9th Cir. 1996); Price v. Akaka, 3 
F.3d 1220 (9th Cir. 1995); Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 
1990); Bush v. Watson, 918 P.2d 1130 (Haw. 1996); Aged Hawaiians v. 
Hawaiian Homes Comm'n, 891 P.2d 279 (Haw. 1995); Bush v. Hawaiian Homes 
Comm'n, 870 P.2d 1272 (Haw. 1994); Pele Defense Fund v. Paty, 837 P.2d 
1247 (Haw. 1992); Territory v. Kapiolani, 18 Haw. 640 (Haw. Terr. 
1908); Territory v. Puahi, 18 Haw. 649 (Haw. Terr. 1908).
---------------------------------------------------------------------------

Section 10. Applicability of Federal laws

    Section 10 was amended to state that the Council, 
established by section 8(c)(2), and the subsequent Native 
Hawaiian governing entity will be considered an ``Indian 
tribe'' for the purposes of sections 201 through 203 of the 
Indian Civil Rights Act of 1968.
    In addition, the substitute amendment clarifies that 
nothing in this Act would extend eligibility for any Indian 
program for the Native Hawaiian governing entity or its members 
unless it explicitly states they are eligible. Again, unlike 
most newly recognized native governments, Congress has 
consistently established separate programs for Native 
Hawaiians. The Committee expects that for the foreseeable 
future, funding for Native Hawaiians remains separate, but with 
the understanding that sometime in the future, it may make 
sense to include Native Hawaiians in other native programs and 
extinguish some of the Native Hawaiian specific programs. A 
similar approach was taken with Alaska Natives. Nothing in this 
Act affects eligibility for any program or service in effect 
before the date of enactment of this Act.
    Subsections were added to clarify that the terms ``Indian'' 
and ``Native American'' in Federal statutes or regulations in 
force prior to United States' recognition of the Native 
Hawaiian governing entity, do not apply to the Native Hawaiian 
governing entity or its members unless it expressly does so. In 
addition, new subsections clarify that the Indian Trade and 
Intercourse Act does not apply to any land transfer involving 
Native Hawaiians or Native Hawaiian entities that occurs prior 
to recognition of the Native Hawaiian governing entity.
    As stated above, the substitute amendment expressly makes 
the Indian Civil Rights Act of 1968\129\ applicable to the 
Council and the Native Hawaiian governing entity. The Indian 
Civil Rights Act (ICRA) provides certain protections similar to 
those under the Bill of Rights and the Fourteenth 
Amendment.\130\ Similar to how the Bill of Rights and 
Fourteenth Amendment operate to constrain the United States and 
the several states in the exercise of their powers, ICRA will 
restrict the actions of the Native Hawaiian governing entity 
and will prohibit it from violating, for example, the due-
process and equal-protection rights of members and nonmembers 
alike.
---------------------------------------------------------------------------
    \129\25 U.S.C. Sec. Sec. 1301-03.
    \130\See id. Sec. 1302.
---------------------------------------------------------------------------
    Importantly, because this provision makes ICRA expressly 
applicable to the Native Hawaiian governing entity, a person 
would be able to file a habeas corpus petition in Federal court 
to challenge the legality of his detention by an order of the 
Native Hawaiian governing entity.\131\ While ICRA allows a 
person to bring a habeas action, and thus serves as a limited 
waiver of the Native Hawaiian governing entity's sovereign 
immunity, it is not a general waiver of the entity's sovereign 
immunity.\132\
---------------------------------------------------------------------------
    \131\Id. Sec. 1303.
    \132\See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978).
---------------------------------------------------------------------------
    By incorporating only those statutes that expressly 
reference Native Hawaiians, Section 10(d)(2) attempts to 
provide clear direction to Federal agencies regarding which 
programs and statutes are available to Native Hawaiians, and to 
avoid statute-by-statute litigation over the scope of these 
statutes. The Committee anticipates that a body of law 
addressing Native Hawaiians will develop over time, based on 
currently existing statutory and regulatory provisions and new 
legislation and court decisions.
    This language is intended to avoid uncertainty, and 
potential litigation, as to whether Native Hawaiians are 
properly considered ``Indians,'' or the Native Hawaiian 
sovereign is properly considered an ``Indian tribe'' under 
every existing statute involving Indians and Indian tribes. 
These terms occur throughout the United States Code and 
associated implementing regulations. Such references to 
``Indians'' and ``tribes'' were not generally intended to 
encompass Native Hawaiians. When Congress has wanted to 
reference Native Hawaiians, it has done so expressly. There is 
an extensive body of Federal Indian statutes and regulations 
specifically addressing Native Hawaiians, often in conjunction 
with other Native Americans.\133\
---------------------------------------------------------------------------
    \133\E.g., American Indian Religious Freedom Act, 42 U.S.C. 
Sec. 1996; Native American Graves Protection and Repatriation Act, 25 
U.S.C. Sec. Sec. 3001-3013; Native American Programs Act of 1974, 42 
U.S.C. Sec. Sec. 2991-2992d.
---------------------------------------------------------------------------
    Section 10(e) addresses the Indian Trade and Intercourse 
Act. First enacted in 1790, that Act requires Congressional 
assent to transfers of Indian land title to third parties. The 
Indian Trade and Intercourse Act has never been thought to 
apply to the alienation of Native Hawaiian lands. As a result, 
parties have not sought Congressional ratification pursuant to 
25 U.S.C. Sec. 177 prior to the transfer of these lands. To 
apply the Indian Trade and Intercourse Act retroactively could 
impose significant liabilities on landowners in Hawaii, as well 
as on the State of Hawaii and the Federal Government. The 
provision in section 10(e) eliminates the possibility of a 
cloud on title issuing from the Indian Trade and Intercourse 
Act. Section 10(e) is primarily directed to the State and 
private parties, but the language is written to include all 
transactions, including those involving the Federal Government, 
to avoid future uncertainty and litigation.

Section 11. Severability

    Other than to change the section number from 10 to 11, this 
section was not amended.

Section 12. Authorization of appropriations

    Other than to change the section number from 11 to 12, this 
section was not amended.

               SECTION-BY-SECTION OF S. 1011, AS AMENDED

Section 1. Short title

    Section 1 sets forth the short title for the bill as the 
``Native Hawaiian Government Reorganization Act of 2009.''

Section 2. Findings

    Section 2 sets forth Congressional findings that support 
this legislation. These findings, among other things, identify 
some of the key respects in which Congress has previously 
legislated for the benefit of the Native Hawaiian people--
thereby recognizing them as a distinctly native community 
within Congress's power to legislate in respect of Indian 
tribes. The findings also discuss some of the past and current 
ways in which the Native Hawaiian people have preserved their 
culture, traditions, and identity as a distinctly native 
people, and have given expression to their rights as native 
people to self-determination, self-governance and economic 
self-sufficiency.

Section 3. Definitions

    Section 3 sets forth a number of definitions of terms used 
in this Act, including definitions for the term ``aboriginal, 
indigenous, native people,'' ``Native Hawaiian membership 
organization'', and ``qualified Native Hawaiian constituent''.
    The term ``aboriginal, indigenous, native people'' is 
defined as the ``people whom Congress has recognized as the 
original inhabitants of the lands that later became part of the 
United States and who exercised sovereignty in the areas that 
later became part of the United States.''
    The term ``Native Hawaiian membership organization'' is 
defined as ``an organization that . . . serves and represents 
the interests of Native Hawaiians, has as a primary and stated 
purpose the provision of services to Native Hawaiians, and has 
expertise in Native Hawaiian affairs; . . . has leaders who are 
elected democratically, or selected through traditional Native 
leadership practices, by members of the Native Hawaiian 
community; . . . advances the cause of Native Hawaiians 
culturally, socially, economically, or politically; . . . is a 
membership organization or association; and . . . has an 
accurate and reliable list of Native Hawaiian members.''
    The term ``qualified Native Hawaiian constituent'' 
identifies adult U.S. citizens who, subject to the procedures 
and provisions of Section 8 of the Act, will be eligible to 
participate in the reorganization of the Native Hawaiian 
governing entity. The term is defined in part as ``an 
individual who is 1 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 . . . occupied and exercised sovereignty in the Hawaiian 
archipelago, including the area that now constitutes the State 
of Hawaii; or . . . an individual who is 1 of the indigenous, 
native people of Hawaii and who was eligible in 1921 for the 
programs authorized by the Hawaiian Homes Commission Act, 1920 
(42 Stat. 108, chapter 42), or a direct lineal descendant of 
that individual.''
    In addition to certifying lineal descent requirements, as 
provided above, qualified Native Hawaiian constituents must be 
U.S. citizens, 18 years of age or older, wish to participate in 
the reorganization process, and maintain a significant 
cultural, social, or civic connection to the Native Hawaiian 
community, as evidenced by satisfying two or more of the ten 
listed criteria.

Section 4. United States policy and purpose

    In section 4, the United States reaffirms its political and 
legal relationship with the Native Hawaiian people, and the 
distinctly native nature of the Native Hawaiian community. 
Section 4 also explains that Congress is exercising its 
authority to enact legislation directed to Native Hawaiians, as 
it has previously done in more than 150 Federal laws. This 
section also reaffirms 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. This section states 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 the Act, which 
is to provide a process for the reorganization of a single 
Native Hawaiian governing entity and the reaffirmation of the 
special political and legal relationship between the United 
States and that Native Hawaiian governing entity for purposes 
of continuing a government-to-government relationship.

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. 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 and consult with the Native 
Hawaiian governing entity.
    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. Designation of Department of Justice representative

    Section 7 provides for a representative from the Department 
of Justice to assist the Office for Native Hawaiian Relations 
with the implementation of this Act to ensure that all 
constitutional parameters, rights, and protections are 
observed.

Section 8. Process for reorganization of Native Hawaiian Governing 
        Entity and reaffirmation of special political and legal 
        relationship between United States and Native Hawaiian 
        Governing Entity

    Section 8 outlines the process for the reorganization of 
the Native Hawaiian governing entity. Section 8 initially 
establishes that the United States recognizes the right of the 
qualified Native Hawaiian constituents to reorganize the single 
Native Hawaiian governing entity to provide for their common 
welfare and to adopt appropriate organic governing documents.
    A Commission composed of nine members is established to 
prepare and maintain a roll of the ``qualified Native Hawaiian 
constituents'' who elect to participate in the reorganization 
of a single Native Hawaiian governing entity. The 
qualifications for appointment by the Secretary to the 
Commission as well as the duties and parameters of the 
Commission are outlined in this section.
    Following the establishment of the Commission, a process 
for reorganization of a single Native Hawaiian governing entity 
is set forth. First, a roll of the names of the qualified 
Native Hawaiian constituents is established, as defined by 
section 3. The Commission is required to determine the types of 
documentation that can be submitted to the Commission for a 
determination to be made on whether an individual meets the 
definition of ``qualified Native Hawaiian constituent'' for the 
purposes of establishing a roll. The Commission must submit to 
the Secretary of the Interior an established roll and certify 
that individuals on the list satisfy the requirements of the 
definition in section 3. The certified roll shall be published 
in the Federal Register. An appeal mechanism shall be 
established by the Secretary of the Interior in consultation 
with the Commission for any person whose name is excluded from 
the roll but who claims to meet the definition of ``qualified 
Native Hawaiian constituent.'' The Commission is responsible 
for updating the roll.
    The Commission, in consultation with the Secretary, will 
hold a minimum of three meetings that are at least two working 
days of the qualified Native Hawaiian constituents listed on 
the roll to organize the Native Hawaiian Interim Governing 
Council. The qualified Native Hawaiian constituents 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 from individuals 
listed on the roll to serve 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 of the organic governing documents, 
they shall be submitted to the Secretary. The Secretary must 
certify that the organic documents contain criteria for future 
membership in the Native Hawaiian governing entity; were 
adopted by a majority vote of the qualified Native Hawaiian 
constituents on the published roll who chose to vote in the 
election; provide authority for the Native Hawaiian entity to 
negotiate; provide for the exercise of inherent authorities of 
the Native Hawaiian governing entity; prevent the sale, 
disposition, lease, or encumbrance of lands, interests in lands 
or other assets of the Native Hawaiian governing entity; 
provide for 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; and that the organic governing 
documents are consistent with applicable Federal law.
    Upon certification of the organic governing documents and 
the election and installation of officers of the Native 
Hawaiian governing entity, the Council shall cease to exist. 
Once this occurs, 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 as the 
representative sovereign governing body of the Native Hawaiian 
people.

Section 9. Reaffirmation of delegation of Federal authority to State of 
        Hawaii; negotiations; claims

    Section 9 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 enter into negotiations with the Native Hawaiian 
governing entity. The Native Hawaiian governing entity will 
exercise the inherent governmental powers of a native 
government under existing law, only modified by agreement among 
the Native Hawaiian governing entity, the United States, and 
the State. These agreements address such matters as the 
transfer of State of Hawaii lands and surplus Federal 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 exercise of 
other powers and authorities that are recognized by the United 
States as powers and authorities typically exercised by 
governments representing indigenous, native people of the 
United States; 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 on any matter or matters, negotiated with 
the United States or the State of Hawaii, and the Native 
Hawaiian governing entity, the parties may submit 
recommendations for proposed amendments to Federal law that 
will enable the implementation of these agreements to both the 
Federal and State governments.
    This section clarifies that the Native Hawaiian governing 
entity shall be vested with the inherent powers and privileges 
of self-government of a native government under existing law. 
These powers may be modified through negotiations and by 
agreement between the three entities, with the exception of 
section 10(a) of the Act. Nothing in this Act shall preempt 
Federal or State authority over Native Hawaiians or their 
property under existing law or authorize the State to tax or 
regulate the Native Hawaiian governing entity, unless so agreed 
by the three entities. In addition, the United States 
recognizes and affirms the Native Hawaiian governing entity's 
inherent power and authority to determine its own membership 
once Federal recognition is extended.
    Finally, this section further addresses potential or 
existing causes of action against the United States or any 
other entity or person. It specifically states that nothing in 
this Act alters existing law, including case law, regarding 
obligations of the United States or the State of Hawaii 
relating to events or actions that occurred prior to 
recognition of the Native Hawaiian governing entity. In 
addition, this Act does not create, enlarge, revive, modify, 
diminish, extinguish, waive, or otherwise alter any claim or 
cause of action against the United States or its officers or 
the State of Hawaii or its officers, or any defense (including 
the defense of statute of limitations) to any such claim or 
cause of action. Nor does the Act alter the applicable statutes 
of limitations. This section also lists a number of other Acts 
which this Act would not amend unless expressly stated in this 
Act.

Section 10. Applicability of certain Federal laws

    Section 10 prohibits the Native Hawaiian governing entity 
and Native Hawaiians from conducting gaming as a matter of 
claimed inherent authority or under any Federal law, in the 
State of Hawaii or within any other State or Territory of the 
United States.
    Only one Native Hawaiian governing entity may be recognized 
pursuant to this Act. The Council and the subsequent governing 
entity recognized under this Act shall be an Indian tribe as 
defined in the Indian Civil Rights Act of 1968. No other groups 
shall be eligible for the Federal Acknowledgment Process. In 
addition, this section clarifies that 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 members shall be 
eligible for Native Hawaiian programs and services to the 
extent and in the manner provided by other applicable laws.
    Finally, this section makes clear that the Indian Trade and 
Intercourse Act does not apply to land conveyances, titles or 
claims involving Native Hawaiians or Native Hawaiian 
organizations prior to the date of the United States' 
recognition of the Native Hawaiian governing entity.

Section 11. 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 12. Authorization of appropriations

    This section authorizes such sums as necessary to carry out 
this Act.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    On December 17, 2009, in an open business meeting, the 
Committee considered S. 1011 and ordered, by voice vote, that 
the bill be favorably reported with an amendment in the nature 
of a substitute to the Senate, and that the bill, as amended, 
do pass.

                   COST AND BUDGETARY CONSIDERATIONS

S. 1011--Native Hawaiian Government Reorganization Act of 2009

    S. 1011 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 over the 2010-2012 period 
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. S. 1011 also would establish the Native 
Hawaiian Interagency Coordinating Group, consisting of 
officials from DOI and certain other federal 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.
    CBO has determined that section 10(c) of S. 1011 is 
excluded from review for mandates under the Unfunded Mandates 
Reform Act (UMRA) because it enforces constitutional rights of 
individuals. Other provisions of the bill contain no 
intergovernmental or private-sector mandates as defined in UMRA 
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.
    On January 7, 2010, CBO transmitted a cost estimate for 
H.R. 2314, the Native Hawaiian Government Reorganization Act of 
2009, as ordered reported by the House Committee on Natural 
Resources on December 16, 2009. S. 1101 contains a provision 
not included in H.R. 2314 that enforces certain constitutional 
rights. That difference in the bills is reflected in the 
mandates statements of the cost estimates. Otherwise, the two 
bills are similar, and the estimated costs are the same.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

               ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO

    I have given my views on this bill, S. 1011, during the 
Committee's hearing in August of 2009 and during the business 
meeting last December during which the Committee approved by 
voice vote the substitute amendment: I cannot support this 
bill.
    There are many aspects of the substitute amendment that are 
either troubling or give me great pause, but for purposes of 
this statement of additional views I will confine my remarks to 
what I think is the principal problem of this bill, both as 
introduced and as it would be amended by the substitute. In 
short, the bill presupposes that the group, entity or 
organization that would emerge from the process authorized in 
the bill is an ``Indian tribe'' within the meaning of the 
United States Constitution, or is at least the functional 
equivalent of an Indian tribe for constitutional purposes.
    That is a presupposition that I am unable and unwilling to 
make.
    Many people take the position that, as a matter of law and 
fact and history, Native Hawaiians simply cannot be recognized 
as a group in the same way that Indian tribes are recognized. 
On the other hand, many others take the position that indeed 
Native Hawaiians can be recognized that way, as a group that is 
functionally and legally the equivalent of an American Indian 
tribe. In our Committee hearings on this and prior versions of 
the Native Hawaiian recognition bill we have heard from 
proponents of both sides of the question.
    During the Committee hearing on S. 1011 in August of 2009, 
Professor Stuart Minor Benjamin of Duke Law School submitted 
testimony suggesting that the question whether a Native 
Hawaiian government can or should be federally recognized is an 
exceedingly difficult one, fraught with many legal and 
constitutional issues that deserve serious consideration.
    The significance of Federal recognition of an Indian tribe 
is far reaching--for the tribe, for its members, and for the 
United States.
    That is why we have an administrative recognition process 
in the Department of the Interior: to determine which native 
groups should be recognized by the Federal government as Indian 
tribes, and which native groups should not. The analysis that 
goes into that determination is very exacting, covering a 
number of historical, ethnographic, and other relevant factors 
relating to the tribal group and its members.
    I appreciate that the substitute amendment includes 
provisions that would impose a number of new requirements for 
enrollment to participate in the referendum process authorized 
by the bill. These new requirements would likely limit the size 
of the population that would vote on the governing documents, 
including a requirement that, to be eligible to enroll, a 
person of Native Hawaiian descent also would have to provide 
evidence of minimum ties or relationships to ``the Native 
Hawaiian community,'' such as ties to certain Native Hawaiian 
lands, eligibility for benefits under the Hawaiian Homes 
Commission Act, or participation in Native Hawaiian 
organizations.\1\ Nevertheless, these new requirements seem 
rather minimal and arbitrary, and in any event give me little 
or no comfort that what we are coming up with in this bill is 
an Indian tribe, or the constitutional equivalent of an Indian 
tribe.\2\
---------------------------------------------------------------------------
    \1\See the definition of ``qualified Native Hawaiian constituent'' 
in section 3(12) of the substitute amendment. In addition to other 
requirements, this definition sets forth a list of 10 criteria, any 2 
or more of which will suffice to demonstrate that the person maintains 
``a significant cultural, social, or civic connection to the Native 
Hawaiian community. . . .''
    \2\The reorganization process set forth in section 8 of the bill 
seems almost outcome determinative. Would many ``qualified Native 
Hawaiian constituents'' who do not support recognition of a Native 
Hawaiian government gather the evidence of eligibility necessary to 
enroll under the substitute amendment, pursue the enrollment process, 
and then cast their votes against ratification of governing documents? 
Perhaps, but it seems highly unlikely. To the contrary, the process 
appears to be one that will tend to enroll those who favor recognition 
and not those who are either opposed or indifferent to recognition.
---------------------------------------------------------------------------
    I continue to believe that the best way to determine 
whether Native Hawaiians should be treated as an Indian tribe 
is not to have Congress deem them to be so as this bill would 
do but instead to authorize them to pursue the same 
administrative process at the Department of the Interior that 
other native groups must pursue, so that they, like these other 
groups, can make their best case for Federal recognition within 
that process.
    S. 1011, as introduced and as embodied in the substitute 
amendment filed by Senator Akaka, jumps to the conclusion that 
the group that ultimately organizes under the bill should be 
treated like a federally recognized Indian tribe. Respectfully, 
I do not think that we, as members of this Committee and of the 
Senate, can or should make the determination that the Native 
Hawaiian governing entity should be treated as a federally 
recognized Indian tribe.
    For that reason I cannot support this bill.
                                                     John Barrasso.

                  ADDITIONAL VIEWS FROM SENATOR McCAIN

    For years, the Senate Committee on Indian Affairs has been 
considering legislation that would establish a process for 
reorganization and federally recognizing a native Hawaiian 
government. I understand that this legislation has been offered 
in response to several concerns expressed by the members of the 
Hawaii delegation. I am very much aware that one of the 
purposes of this legislation is to insulate current native 
Hawaiian programs from constitutional attack in the courts, and 
I am sympathetic to that purpose. However, that does not change 
the fact that I have serious doubts about the wisdom of this 
legislation.
    If enacted, S. 1011 would result in the formation of a 
sovereign government for Native Hawaiian people, which carries 
with it the privilege of sovereign immunity from lawsuits, and 
the powers to tax, to promulgate and enforce criminal code, and 
to exercise eminent domain. I cannot turn away from the fact 
that this bill bases this new nation exclusively--not 
primarily, not in part, but exclusively--on race. This approach 
has drawn criticism from the U.S. Commission on Civil Rights, 
which recommended against passage of a similar native Hawaiian 
bill, S. 147, during the 109th Congress, and warned that the 
proposal would ``discriminate on the basis of race'' and 
``further subdivide the American people into discrete subgroups 
accorded varying degrees of privilege.''
    The Constitution provides the federal government with the 
power to recognize tribes with a continuous history of separate 
self-governance, but it does not give it the power to 
reconstitute or create a new tribe made up of a collection of 
United States citizens demanding special status. Regrettably, 
at its core, this bill embraces the dangerous concept of 
conferring special privileges on one racial group over others. 
This is unacceptable to me, and it is unacceptable, I am sure, 
to most other citizens of this Nation who agree that we must 
continue our struggle to become and remain one people--all 
equal, all Americans.
                                                       John McCain.

                     ADDITIONAL VIEWS OF TOM COBURN

    I want to thank my colleagues for this opportunity to 
express my grave concerns with S. 1011, ``the Native Hawaiian 
Government Reorganization Act,'' now being reported by the 
Indian Affairs Committee.
    As my colleagues on the committee know well, this bill has 
been around for some time. I have many serious objections to 
this bill, and have submitted a series of documents to the 
Committee outlining most of those concerns.
    I will focus my many comments on the one question that 
matters most: Does Congress have the Constitutional authority 
to take this unprecedented action?

                      IS THE BILL CONSTITUTIONAL?

    Section 2 of this bill reads: ``Congress finds that--(1) 
the Constitution vests Congress with the authority to address 
the conditions of the indigenous, native people of the United 
States;''.
    Section 4 reads, in part: ``Congress possesses the 
authority under the Constitution, including but not limited to 
Article I, section 8, clause 3, to enact legislation to address 
the conditions of Native Hawaiians.''
    Since it is the only provision of our Constitution 
specifically mentioned in the bill, I think it is important 
that senators read Article I, Section 8, Clause 3: ``Congress 
shall have Power . . . To regulate Commerce with foreign 
Nations, and among the several States, and with the Indian 
Tribes;''.
    In other words, this entire bill rests upon the ability of 
Congress to regulate commerce with Indian tribes.
    Supporters of this bill will argue that ``Indian tribes'' 
also refers to ``indigenous peoples.'' I adamantly disagree 
with that interpretation, and while each senator will have to 
decide this issue based on their reading of the Constitution 
and their Oath, I believe the historical record is clear.
    I have submitted volumes of information in the official 
committee hearing record from constitutional scholars and 
historians that underscore this lack of authority and the 
serious harm this precedent will establish. I encourage my 
colleagues to examine those documents in detail. The evidence 
is quite clear.
    Ironically, many of the bill's strongest opponents have 
previously agreed with these concerns. For instance:
    In 1998, the State of Hawaii (now one of the strongest 
supporters of the bill--expending considerable resources) had 
this to say in a brief before the U.S. Supreme Court: ``the 
tribal concept simply has no place in the context of Hawaiian 
history.''\1\
---------------------------------------------------------------------------
    \1\Brief in opposition to Petition for Writ of Certiorari at p. 18, 
Rice v Cayetano, 528 US 495 (2000).
---------------------------------------------------------------------------
    Senator Inouye--one of the most respected men to ever serve 
on the Indian Affairs Committee--had this to say: ``Because the 
Native Hawaiian government is not an Indian tribe, the body of 
Federal Indian law that would otherwise customarily apply when 
the United States extends Federal recognition to an Indian 
tribal group does not apply.''
    Senator Inouye went on to say: ``. . . That is why concerns 
which are premised on the manner in which Federal Indian law 
provides for the respective governmental authorities of the 
state governments and Indian tribal governments simply don't 
apply in Hawaii.''\2\
---------------------------------------------------------------------------
    \2\Inouye, Daniel Senator, ``Statement on Introduced Bills and 
Resolutions.'' January 25, 2005.
---------------------------------------------------------------------------
    In other words, the very foundation on which this bill is 
based--Congress' ability to regulate commerce among Indian 
tribes--is highly questionable.
    On the one hand, the authors of this bill claim that Native 
Hawaiians are an ``Indian tribe'' as a basis for Constitutional 
authority, and on the other hand, claim it is in fact NOT an 
``Indian tribe'' for purposes of Indian law.
    If the statements of the bill's supporters are accurate, it 
is not even clear whether the Indian Affairs Committee had 
proper jurisdiction to review this bill.
    There simply is no comparison to Indian tribes, or even to 
Alaska Native Corporations.
    This bill does not restore ``tribal status'' where it once 
existed; It creates an entirely new government based solely on 
race. The Kingdom of Hawaii was a diverse society and 
government (much like the state today). The new ``tribe'' will 
not reflect that tradition and will create a government just 
for those deemed ``indigenous.''
    Unlike the many Indian tribes in my state whose governments 
were subsequently terminated, no such history exists for a 
Native Hawaiian entity.
    American Indians were not even formally given full 
citizenship until 1924.\3\ In contrast, Native Hawaiians became 
citizens of this country in 1900, twenty four years earlier.\4\ 
Native Hawaiians took part in the referendum that brought 
Hawaii into the Union as a state, and as one government.
---------------------------------------------------------------------------
    \3\http://memory.loc.gov/ammem/today/jun02.html
    \4\http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/03-
ORG/ORG_0004.HTM
---------------------------------------------------------------------------
    In Oklahoma, and even in Alaska, there were distinct tribal 
populations with existing governments at the time of statehood. 
That was not the case in Hawaii. In Alaska, distinct tribal 
communities existed at the time of statehood and were addressed 
in that state's organic documents. Again, that is not the case 
in Hawaii.

                         WHAT IS THE SOLUTION?

    If the Native Hawaiians are entitled to sovereign tribal 
government status, as this bill presupposes, the solution is 
quite simple.
    As many of my colleagues know, the federal government 
already has in place an established and rigorous seven step 
process for recognition of tribal governments. This review is 
handled by the Office of Federal Acknowledgement (OFA).
    This process is applied evenly to all who apply, and takes 
politics out of the equation.
    This committee should take the supporters of Native 
Hawaiian governmental recognition at their word. If they are 
indeed a distinct Indian community with historic ties to the 
federal government, and who has continued to exercise 
continuous governmental authority after an official 
termination, a Native Hawaiian entity should submit an 
application to OFA. If it believes it is not eligible for this 
process, Congress can easily authorize it to submit an 
application.

                        THE LEGISLATIVE PROCESS

    Even though the Committee has officially reported S. 1011, 
it is my hope that the people of Hawaii--those most immediately 
impacted by this bill--will have an opportunity to have their 
voices heard in Congress. While I mean no disrespect to the 
panelists who have testified during the legislative hearing, it 
is clear that those most strongly favoring the creation of a 
separate Native Hawaiian government have had a dominant voice.
    Further, the last minute changes made to this bill during 
the business meeting have heightened my concerns and should 
give the State of Hawaii considerable heartburn. The amendment 
in the nature of a substitute will severely weaken the 
sovereignty of the State of Hawaii and place it on a path 
towards two separate Hawaiis--one subject to the Constitution 
of the United States and built on the proudest traditions of 
American diversity and the other with undefined ``inherent'' 
authority that will reshape the State of Hawaii, and place many 
of its residents outside the full protections of the Bill of 
Rights.
    In an effort to preserve subsidies put in place for Native 
Hawaiians and jeopardized by recent Court decisions, this 
Congress is being asked to act outside of its Constitutional 
bounds and completely redefine the Indian Commerce Clause. This 
is a dangerous precedent for our nation.
    There are dozens of senators, including me, who believe 
this bill is a violation of our oath to the Constitution and a 
major affront to the Indian tribes in our states who have 
labored to regain their recognition.
    The road ahead for this bill will not be an easy one. I, 
along with many of our colleagues, will never give unanimous 
consent to moving forward on this bill.
                                                        Tom Coburn.
                        EXECUTIVE COMMUNICATIONS

    The Committee held a hearing on S. 1011 on August 6, 2009, 
at which Sam Hirsch, Deputy Associate Attorney General, U.S. 
Department of Justice, presented a statement on behalf of the 
Administration. In this statement, Mr. Hirsch acknowledged that 
many of the Administration's concerns with previous versions of 
the Native Hawaiian Government Reorganization Act had been 
addressed in S. 1011. He also stated that the Department of 
Justice strongly supported the core policy goals of this bill, 
while recognizing that some of the specific details of the 
legislation were still being addressed. Mr. Hirsch's statement 
was made a part of the hearing record for the Committee.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill evaluate 
the regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that the 
regulatory and paperwork impact of S. 1011 will be minimal.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of S. 1011 will not make any changes in existing law.

                                  
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