[Senate Report 113-76]
[From the U.S. Government Publishing Office]
Calendar No. 133
113th Congress Report
SENATE
1st Session 113-76
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HAWAIIAN HOMES COMMISSION
_______
July 15, 2013.--Ordered to be printed
_______
Mr. Wyden, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S.J. Res. 12]
The Committee on Energy and Natural Resources, to which was
referred the joint resolution (S.J. Res. 12) to consent to
certain amendments enacted by the legislature of the State of
Hawaii to the Hawaiian Homes Commission, Act, 1920, having
considered the same, reports favorably thereon without
amendment and recommends that the joint resolution do pass.
PURPOSE
The purpose of S.J. Res. 12 is to consent to certain
amendments to the Hawaiian Homes Commission Act, 1920, enacted
by the legislature of the State of Hawaii.
BACKGROUND AND NEED
In 1921, Congress enacted the Hawaiian Homes Commission Act
(HHCA) to provide a homesteading program for native Hawaiians
on approximately 200,000 acres of land. The HHCA is
administered by the Department of Hawaiian Home Lands (DHHL),
an agency of the State of Hawaii, but with certain oversight
responsibilities exercised by the U.S. Department of the
Interior and the U.S. Congress.
In 1959, the State of Hawaii adopted the HHCA as a
provision of the State Constitution pursuant to section 4 of
the Hawaii Statehood Admissions Act, Public Law 86-3. Section 4
of the Admission Act allows the State of Hawaii to amend or
repeal the HHCA only with the consent of the United States, and
provides a process by which the State may propose amendments to
the HHCA. In 1995 this process was clarified by the Hawaiian
Home Lands Recovery Act, which requires the State of Hawaii to
notify the Secretary of the Interior of any amendment it
proposes and requires the Secretary to determine whether
Congress must approve the proposed amendment for it to become
effective.
On November 11, 2006 and November 3, 2009, Assistant
Secretaries of the Interior wrote to the Chairman of the
Committee on Energy and Natural Resources with a determination
that three amendments to the HHCA enacted by the State of
Hawaii require Congressional consent and approval to become
effective.
LEGISLATIVE HISTORY
S.J. Res. 12 was introduced on March 21, 2013, by Senator
Schatz and Senator Hirono, and was referred to the Committee on
Energy and Natural Resources. On April 16, 2013 the
Subcommittee on Water and Power held a hearing on S.J. Res. 12.
On May 16, 2013, the Committee on Energy and Natural Resources
ordered S.J. Res. 12 favorably reported without amendment.
COMMITTEE RECOMMENDATION
The Committee on Energy and Natural Resources, in open
business session on May 16, 2013, by voice vote of a quorum
present, recommends that the Senate pass S.J. Res.12 without
amendment.
SECTION-BY-SECTION ANALYSIS
S.J. Res. 12 gives consent to three amendments to the
Hawaiian Homes Commission Act made by the State of Hawaii. The
three amendments are:
Act 107, Session Laws of Hawaii, 2000, which amends section
215(2) of the HHCA by allowing the Hawaiian Homes Commission to
establish by administrative rule, the interest rate on loans
from the Hawaiian home-loan fund and the Hawaiian home general
loan fund.
Act 12, Session Laws of Hawaii, 2002, which amends section
208(5) of the HHCA by authorizing a homestead lessee who is at
least one-quarter Native Hawaiian and who has received an
interest in the tract through succession or transfer, to
transfer his or her leasehold interest to a brother or sister
who is at least one-quarter Native Hawaiian.
Act 16, Session Laws of Hawaii, 2005, which amends section
209(1)(a) of the HHCA by authorizing a homestead lessee to
designate a brother or sister who is at least one-quarter
Native Hawaiian to succeed to the leasehold interest upon the
death of the lessee.
COST AND BUDGETARY CONSIDERATION
The following estimate of the cost of this measure has been
provided by the Congressional Budget Office:
S.J. Res. 12--A joint resolution to consent to certain amendments
enacted by the legislature of the State of Hawaii to the
Hawaiian Homes Commission Act, 1920
Under the State of Hawaii Admission Act and later clarified
under the Hawaiian Home Lands Recovery Act of 1995, the state
of Hawaii must notify the Secretary of the Interior of any
amendment it proposes to the Hawaiian Homes Commission Act and
obtain the consent of the Congress before an amendment becomes
effective. S.J. Res. 12 would provide that consent for
amendments to expand eligibility and succession authority for a
homesteading program to individuals who are at least 25 percent
Native Hawaiian and allow the Hawaiian Homes Commission to set
interest rates on home loans based on market conditions.
CBO estimates that enacting this joint resolution would
have no impact on the federal budget. Enacting S.J. Res. 12
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
S.J. Res. 12 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
and would impose no costs on state, local, or tribal
governments.
The CBO staff contact for this estimate is Susanne S.
Mehlman. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
REGULATORY EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S.J. Res. 12.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals or businesses.
No personal information would be collected by the Federal
government. Therefore, there would be no impact on personal
privacy.
Little, if any additional paperwork would be required by
the Federal government from the enactment of S.J. Res. 12.
CONGRESSIONALLY DIRECTED SPENDING
S.J. Res. 12, as reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The letter of Assistant Secretary Thomas Weimer to Chairman
Domenici, dated November 22, 2006, relating to Act 16, Session
Laws of Hawaii, 2005; the letter of Assistant Secretary Rhea
Suh to Chairman Bingaman, dated November 3, 2009, relating to
Act 12, Session Laws of Hawaii, 2002, and Act 107, Session Laws
of Hawaii, 2000; and a statement for the record provided by the
Department of the Interior for the April 16, 2012 hearing
before the Subcommittee on Water and Power follow:
U.S. Department of the Interior, Office of the
Assistant Secretary Policy, Management and
Budget,
Washington, DC, November 22, 2006.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: In 1959, Hawaii became a State in
accordance with the Hawaii Admission (or Statehood) Act, 73
Stat. 4. In section 4 of the Act, Congress required ``the
consent of the United States'' to certain State enactments
amending the Hawaiian Homes Commission Act (HHCA), 42. Stat.
108. Congress enacted the HHCA in 1921 to provide a
homesteading program on approximately 200,000 acres of land,
called the ``available lands,'' for native Hawaiians. In
accordance with section 4 of the Hawaii Admission Act, 73 Stat.
4, and section 204 of the Hawaiian Homelands Recovery Act
(HHLRA) of November 2, 1995, the Department of the Interior
reviews State enactments amending the HHCA to determine whether
Congressional consent is required.
By letter of August 2, 2005, (Enclosure 1), the Chairman of
the Hawaiian Homes Commission, Micah Kane, forwarded two State
enactments, Acts 16 (Enclosure 2) and 53 (Enclosure 3) of the
Session Laws of Hawaii, 2005, to the Department for review. By
letter of May 3, 2006, Enclosure (4), the Department advised
Chairman Kane of the result of its preliminary review of the
two State enactments and invited the Hawaiian Homes Commission
to comment. Chairman Kane replied in a July 31, 2006, letter
(Enclosure 5). Based upon our review of the State enactments
and the comments from Chairman Kane, I am forwarding Act 16 for
Congressional consent together with a draft joint resolution
(Enclosure 6) approving the State enactment.
Session Laws 2005, Statutes of Hawaii, Act 16, amends
section 209(a) of the HHCA by authorizing a homestead lessee to
designate a brother or sister who is at least one-quarter
native Hawaiian to succeed to the leasehold interest in the
tract upon the death of the lessee. The State of Hawaii
maintains Congressional consent is unnecessary because Act 16
will advance the interest of HHCA beneficiaries by helping to
ensure the homestead lease remains in the family of the
original lessee. We disagree. Section 4 of the Hawaii Statehood
Act provides that ``the qualifications for lessees shall not be
changed except with the consent of the United States.'' The
HHCA defined native Hawaiian as ``any descendent of not less
than one-half part blood of the races inhabiting the Hawaiian
Islands previous to 1778,'' 42 Stat. 108. Current Federal law
does not authorize brothers and sisters of lessees of less than
50 percent Hawaiian descent to acquire leases. Thus, we believe
Congressional consent is required for Act 16.
The second statute submitted to the Department by the State
of Hawaii is Session Laws 2005, Statues of Hawaii, Act 53. This
enactment amends section 208 of the HHCA by authorizing lending
institutions to make mortgage loans on Hawaiian home lands that
are insured or guaranteed by private mortgage insurance
approved by the Hawaiian Homes Commission. The State of Hawaii
maintains that Congressional consent is unnecessary because Act
53 will advance the interests of HHCA beneficiaries by
expanding the number of private lenders available to offer
mortgage financing for Hawaiian home lands. We agree. Section 4
of the Hawaii Statehood Act provides that ``the encumbrances
authorized to be placed on Hawaiian home lands by officers
other than those charged with the administration of [the HHCA]
shall not be increased, except with the consent of the United
States.'' Chairman Kane's letter of August 17, 2006, clarified
that lenders must assign a defaulted loan secured by Department
of Hawaiian Homelands (DHHL) property to DHHL after the lender
has exhausted available collection options. Thus, the
Department determined that no additional encumbrances on
Hawaiian home lands were authorized by Act 53. In accordance
with section 4 of the Hawaii Admission Act and section 204 of
the HHLRA, Session Laws 2005, Statues of Hawaii, Act 53 need
not be submitted to Congress for review.
The Administration takes no positions on the merits of Act
16 by the State of Hawaii. Should you have any questions,
please feel free to contact me.
Sincerely,
R. Thomas Weimer,
Assistant Secretary.
Enclosures.
------
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, November 3, 2009.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: In accordance with the Hawaiian Homes
Commission Act (HHCA), 42 Stat. 108, of 1921, and the Hawaiian
Home Lands Recovery Act (HHLRA) of November 2, 1995, 109 Stat.
361, the United States Department of the Interior (Department)
is submitting for congressional review and consent, Act 12,
2002 Haw. Sess. Laws, and Act 107, 2000 Haw. Sess. Laws. Both
Acts require congressional consent before taking on the force
of law.
Congress enacted the HHCA in 1921 to provide a homesteading
program on approximately 200,000 acres of land, called the
``available lands'' for native Hawaiians. In section 4 of the
Hawaii Statehood Admissions Act, 73 Stat. 4, Congress required
``the consent of the United States'' to certain State of Hawaii
enactments amending the HHCA. In section 204 of the HHLRA,
Congress formalized the role of the Department in securing any
required congressional consent to State enactments. The HHLRA
provides that the Department is to review State enactments to
determine whether congressional consent is required under
section 4 of the Hawaii Statehood Admissions Act. If the
Department deems that congressional consent is not required, it
so notifies the State of Hawaii and Congress. If the Department
deems that congressional consent is required, the Department is
to submit a draft joint resolution approving the amendment to
Congress together with a recommendation on whether it should be
approved. In general, congressional consent is required for
State enactments that:
(i) amend HHCA sections 202, 213, 219, 220, 222, 224 and
225 and other provisions relating to administration, and
paragraph (2) of section 204, sections 206 and 212 and other
provisions relating to the powers and duties of officers other
than those charged with the administration of the HHCA, without
providing an increase in benefits to the lessees of Hawaiian
home lands;
(ii) reduce or impair the Hawaiian home-loan fund, the
Hawaiian home-operating fund, and the Hawaiian home-development
fund;
(iii) allow for additional encumbrances to be placed on
Hawaiian home lands by officers other than those charged with
the administration of the HHCA; or
(iv) change the qualifications for lessees.
The Department also must determine if the proposed
amendments to the HHCA increase the benefits to current and
future lessees of Hawaiian Home Lands. To assist us in making
this determination when we reviewed the enclosed State of
Hawaii enactments, we obtained input from participants during a
Beneficiary Forum with the Department's Office of Hawaiian
Relations. The forum was held on May 22, 2008, in Honolulu,
Hawaii, to discuss with leaders of the Native Hawaiian
Beneficiaries Community, State enactments proposing to amend
the Hawaiian Homes Commission Act. The consultation comment
period for this forum ended July 30, 2008. However, due to
public request, an electronic consultation with the Native
Hawaiian community remained open until December 31, 2008. The
final meeting report (enclosure 1) is enclosed with this
letter.
The Department reviewed the 13 State enactments submitted
to us to determine whether congressional consent is required.
Based upon our review and the criteria listed in Section 4 of
the State of Hawaii Admissions Act of 1959, it is the opinion
of the Department that Act 177, 2006 Haw. Sess. Laws; Act 117,
2002 Haw. Sess. Laws; Act 110, 2001 Haw. Sess. Laws; Act 122,
2001 Haw. Sess. Laws; Act 119, 2000 Haw. Sess. Laws; Act 27,
1998 Haw. Sess. Laws; Act 196, 1997 Haw. Sess. Laws; Act 197,
1997 Haw. Sess. Laws; Act 232, 1996 Haw. Sess. Laws; and Act
14, 1995 Haw. Sess. Laws, do not require the consent of
Congress and as of August 7, 2009, have the full effect of law.
Please refer to enclosure (2) to see the Department's
individual reviews of each of these state enactments.
Based upon the Department's review and the criteria listed
in section 4 of the State of Hawaii Admissions Act of 1959, it
is the opinion of the Department that Act 12, 2002 Haw. Sess.
Laws, and Act 107, 2000 Haw. Sess. Laws, require congressional
consent before either proposed amendment takes on the force of
law. In accordance with Section 204(c) of the HHLRA, enclosed
are two draft joint resolutions approving each of the
respective proposed amendments.
The first proposed amendment requiring review by Congress,
Act 12, 2002 Haw. Sess. Laws, seeks to change section 208 of
the HHCA by authorizing a homestead lessee to designate a
brother or sister who is at least one-quarter native Hawaiian
to succeed to the leasehold interest in the tract upon the
death of the lessee. Section 4 of the Hawaii Statehood
Admissions Act provides that ``the qualifications for lessees
shall not be changed except with the consent of the United
States.'' Although Congress has authorized certain other
changes to the blood quantum requirement, it has not authorized
brothers and sisters of lessees of less than 50 percent
Hawaiian descent to acquire leases. The State of Hawaii
enactment changes ``the qualifications for lessees'';
therefore, we conclude it requires congressional consent.
However, the Department remains neutral on the advisability of
passing Act 12.
The second proposed amendment, Act 107, 2000 Haw. Sess.
Laws, seeks to modify the HHCA by allowing the Hawaiian Homes
Commission to establish by administrative rule, the interest
rate on loans from the Hawaiian home-loan fund and the Hawaiian
home general loan fund. The intent of this amendment being to
provide the Hawaiian Homes Commission with the flexibility to
adjust the interest rate on loans from the Hawaiian home-loan
fund based on current market conditions or the financial needs
of the successor lessee. Section 4 of the Hawaii Statehood
Admissions Act provides that ``the Hawaiian home-loan fund . .
. shall not be reduced or impaired by any such amendment,
whether made in the constitution or in manner required for
state legislation . . ., except with the consent of the United
States.'' Act 107, by allowing the Hawaiian Homes Commission to
set the interest rate below 2.5 percent, may provide a benefit
to a limited number of successor lessees of surrendered or
cancelled leases, but only until the fund's resources are
depleted. This ability to deplete the fund clearly qualifies as
a reduction or impairment of the Hawaiian home-loan fund and
thus requires congressional consent. However, the Department
supports passage of Act 107 because it also provides the
Hawaiian Homes Commission the ability to adjust the rates above
2.5 percent and manage the fund in a way that protects its
solvency.
The last statute the Department reviewed, Act 302, 2001
Haw. Sess. Laws, proposes to amend the HHCA by calling for
federal reaffirmation and community governance. Based strictly
upon the requirements of section 4, congressional consent is
not required. However, the Act is not self-executing. The State
Legislature recognized the State's lack of authority to bind
the Federal Government and required congressional consent
before the State enactment could take on the force of law. As
such, the Department is forwarding Act 302 to your Committee
without position or comment. In keeping with the spirit of the
HHLRA, legislative drafting services will be made available
should they be requested.
Thank you for your time and effort in reviewing Acts 12,
107 and 302. If you have any comments or questions, please do
not hesitate to contact me or Mr. Kaiini Kaloi, at 202-208-
7462.
Sincerely,
Rhea Suh,
Assistant Secretary, Policy, Management and Budget.
Enclosures.
Statement for the Record of the Department of the Interior
Thank you for providing the Department of the Interior the
opportunity to provide its views on Senate Joint Resolution 12
which proposes to consent to and approve three amendments, Act
107, 2000 Hawai`i Session Laws, Act 12, 2002 Haw. Sess. Laws,
and Act 16, 2005 Haw. Sess. Laws., proposed by the legislature
of the State of Hawai`i to the Hawaiian Homes Commission Act
(HHCA), 1920, as amended. Specifically, S.J. Res. 12 seeks to
amend the HHCA to allow the interest rate on loans from the
Hawaiian home-loan fund and the Hawaiian home general loan fund
to be set by the Hawaiian Homes Commission through an
administrative rule, rather than by law. S.J. Res. 12 also
changes the qualifications of homestead lessees by authorizing
a Hawaiian Homes Commission Act homestead lessee to transfer,
or designate a successor to, their leasehold interest to a
brother or sister who is at least one-quarter Native Hawaiian.
By way of background, Congress enacted the HHCA in 1921 to
provide a homesteading program on approximately 200,000 acres
of land, called the ``available lands,'' for native Hawaiians.
In section 4 of the Hawai`i Admission Act, 73 Stat. 4, Congress
required ``the consent of the United States'' to certain State
of Hawai`i enactments amending the HHCA. In section 204 of the
Hawaiian Home Lands Recovery Act (HHLRA) of November 2, 1995,
109 Stat. 361, Congress formalized the role of the Department
in securing any required congressional consent and approval to
State enactments.
The HHLRA provides that the Department is to review
proposed state amendments to the HHCA to determine whether
congressional approval is needed to effectuate the United
States' consent required under Section 4 of the Hawai`i
Admission Act. If the Department deems that congressional
approval is not required, it so notifies the State of Hawai`i
and Congress. If the Department deems that congressional
approval is required, as the Department has for the three
proposed amendments that are the subject of S.J. Res. 12, the
Department is to submit a draft joint resolution approving the
amendments to Congress, together with a recommendation on
whether they should be approved. Here, we wish to acknowledge
that the introduced bill was a product of close collaboration
among the Committee on Energy and Natural Resources, the
Department, and the Hawai`i Senate delegation.
In carrying out the Department's statutory trust
responsibilities to the beneficiaries of the HHCA, the
Department obtained input from participants during a
Beneficiary Forum with the Department's Office of Native
Hawaiian Relations. The forum was held in May 2008 in Hawai`i
to discuss with leaders of the Native Hawaiian beneficiary
community the State enactments proposed to amend the HHCA. Due
to public request, the Department extended the comment period
and conducted an electronic consultation with the Native
Hawaiian community.
Based upon the Department's review and the criteria listed
in section 4 of the Hawai`i Admission Act, the Department
determined that Act 107, 2000 Haw. Sess. Laws, Act 12, 2002
Haw. Sess. Laws, and Act 16, 2005 Haw. Sess. Laws, require
congressional consent before such proposed amendments take on
the force of law. The Department supports the United States
consenting to and approving of Act 107 and remains neutral on
the consenting to and approving of Acts 12 and 16.
This concludes the Department's prepared testimony on S.J.
Res. 12, and the Department would be happy to answer any
questions the Subcommittee may have.
CHANGES IN EXISTING LAW
S.J. Res. 12 would not make any changes to existing Federal
law.