Native Hawaiian Government Reorganization Act of 2012 - (Sec. 5) Recognizes the right of the Native Hawaiian people to reorganize a Native Hawaiian governing entity to provide for their common welfare and to adopt an appropriate constitution and bylaws.
Considers the individuals listed on the roll compiled and certified by the Native Hawaiian Roll Commission to be members of the Native Hawaiian people for purposes of reorganizing that entity, provided the roll is published, available for inspection, and compiled in accordance with due process principles.
Requires those members, in consultation with the Secretary of the Interior, to establish an Interim Governing Council by: (1) developing the qualifications required of Council candidates, (2) determining the Council's structure, and (3) electing Council members.
Requires the Council, within two years of its establishment, to: (1) develop, with appropriate input from the Native Hawaiian people, a proposed constitution and bylaws for the Native Hawaiian governing entity; (2) provide the proposed constitution and bylaws, and an objective description of their provisions, to the Native Hawaiian people; (3) request the Secretary to hold an election to ratify the constitution and bylaws; and (4) submit the ratified constitution and bylaws to the Secretary for approval under the Indian Reorganization Act.
Directs the Council, with the Secretary's assistance, to hold elections for officers of the Native Hawaiian governing entity identified in the approved constitution and bylaws.
Terminates the Council on the date the members of the Native Hawaiian governing entity are installed.
(Sec. 6) Gives the Native Hawaiian governing entity the inherent powers and privileges of self-government of an Indian tribe under applicable federal law.
Considers the governing entity to be an Indian tribe eligible for the special programs and services the federal government provides to Indians.
Subjects the governing entity to the Indian Gaming Regulatory Act. Prohibits the governing entity from conducting gaming activities, unless Hawaii permits such an activity for any purpose by an individual, organization, or entity.
Authorizes the Secretary to consider the governing entity to be an Indian tribe for purposes of carrying out any activity authorized under the Indian Reorganization Act.
Ratifies and confirms any action taken by the Secretary pursuant to the Indian Reorganization Act for the Native Hawaiian governing entity to the extent the action is challenged based on the question of whether the governing entity was federally recognized or under federal jurisdiction on June 18, 1934.
(Sec. 8) Authorizes appropriations for the implementation of this Act.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 675 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 675
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 30, 2011
Mr. Akaka (for himself, Mr. Inouye, Mr. Begich, and Ms. Murkowski)
introduced the following bill; which was read twice and referred to the
Committee on Indian Affairs
_______________________________________________________________________
A BILL
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native Hawaiian Government
Reorganization Act of 2011''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Constitution vests Congress with the authority to
address the conditions of the indigenous, native people of the
United States and the Supreme Court has held that under the
Indian Commerce, Treaty, Supremacy, and Property Clauses, and
the War Powers, Congress may exercise that power to rationally
promote the welfare of the native peoples of the United States
so long as the native people are a ``distinctly native
community'';
(2) Native Hawaiians, the native people of the Hawaiian
archipelago that is now part of the United States, are 1 of the
indigenous, native peoples of the United States, and the Native
Hawaiian people are a distinctly native community;
(3) the United States has a special political and legal
relationship with, and has long enacted legislation to promote
the welfare of, the native peoples of the United States,
including the Native Hawaiian people;
(4) under the authority of the Constitution, the United
States concluded a number of treaties with the Kingdom of
Hawaii, and from 1826 until 1893, the United States--
(A) recognized the sovereignty of the Kingdom of
Hawaii as a nation;
(B) accorded full diplomatic recognition to the
Kingdom of Hawaii; and
(C) entered into treaties and conventions of peace,
friendship and commerce with the Kingdom of Hawaii to
govern trade, commerce, and navigation in 1826, 1842,
1849, 1875, and 1887;
(5) pursuant to the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42), the United States set aside
approximately 203,500 acres of land in trust to better address
the conditions of Native Hawaiians in the Federal territory
that later became the State of Hawaii and in enacting the
Hawaiian Homes Commission Act, 1920, Congress acknowledged the
Native Hawaiian people as a native people of the United States,
as evidenced by the Committee Report, which notes that Congress
relied on the Indian affairs power and the War Powers,
including the power to make peace;
(6) by setting aside 203,500 acres of land in trust for
Native Hawaiian homesteads and farms, the Hawaiian Homes
Commission Act, 1920, assists the members of the Native
Hawaiian community in maintaining distinctly native communities
throughout the State of Hawaii;
(7) approximately 9,800 Native Hawaiian families reside on
the Hawaiian Home Lands, and approximately 25,000 Native
Hawaiians who are eligible to reside on the Hawaiian Home Lands
are on a waiting list to receive assignments of Hawaiian Home
Lands;
(8)(A) in 1959, as part of the compact with the United
States admitting Hawaii into the Union, Congress delegated the
authority and responsibility to administer the Hawaiian Homes
Commission Act, 1920, lands in trust for Native Hawaiians and
established a new public trust (commonly known as the ``ceded
lands trust''), for 5 purposes, 1 of which is the betterment of
the conditions of Native Hawaiians, and Congress thereby
reaffirmed its recognition of the Native Hawaiians as a
distinctly native community with a direct lineal and historical
succession to the aboriginal, indigenous people of Hawaii;
(B) the public trust consists of lands, including submerged
lands, natural resources, and the revenues derived from the
lands; and
(C) the assets of this public trust have never been
completely inventoried or segregated;
(9) Native Hawaiians have continuously sought access to the
ceded lands in order to establish and maintain native
settlements and distinct native communities throughout the
State;
(10) the Hawaiian Home Lands and other ceded lands provide
important native land reserves and resources for the Native
Hawaiian community to maintain the practice of Native Hawaiian
culture, language, and traditions, and for the continuity,
survival, and economic self-sufficiency of the Native Hawaiian
people as a distinctly native political community;
(11) Native Hawaiians continue to maintain other distinctly
native areas in Hawaii, including native lands that date back
to the ali`i and kuleana lands reserved under the Kingdom of
Hawaii;
(12) through the Sovereign Council of Hawaiian Homelands
Assembly, Native Hawaiian civic associations, charitable trusts
established by the Native Hawaiian ali`i, nonprofit native
service providers and other community associations, 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;
(13) on November 23, 1993, Public Law 103-150 (107 Stat.
1510) (commonly known as the ``Apology Resolution'') was
enacted into law, extending an apology on behalf of the United
States to the native people of Hawaii for the United States'
role in the overthrow of the Kingdom of Hawaii;
(14) the Apology Resolution acknowledges that the overthrow
of the Kingdom of Hawaii occurred with the active participation
of agents and citizens of the United States, and further
acknowledges that the Native Hawaiian people never directly
relinquished to the United States their claims to their
inherent sovereignty as a people over their national lands,
either through the Kingdom of Hawaii or through a plebiscite or
referendum;
(15)(A) the Apology Resolution expresses the commitment of
Congress and the President--
(i) to acknowledge the ramifications of the
overthrow of the Kingdom of Hawaii; and
(ii) to support reconciliation efforts between the
United States and Native Hawaiians;
(B) Congress established the Office of Hawaiian Relations
within the Department of the Interior with 1 of its purposes
being to consult with Native Hawaiians on the reconciliation
process; and
(C) the United States has the duty to reconcile and
reaffirm its friendship with the Native Hawaiian people
because, among other things, the United States Minister and
United States naval forces participated in the overthrow of the
Kingdom of Hawaii;
(16)(A) despite the overthrow of the Government of the
Kingdom of Hawaii, Native Hawaiians have continued to maintain
their separate identity as a single distinctly native political
community through cultural, social, and political institutions,
and to give expression to their rights as native people to
self-determination, self-governance, and economic self-
sufficiency; and
(B) there is clear continuity between the aboriginal,
indigenous, native people of the Kingdom of Hawaii and their
successors, the Native Hawaiian people today;
(17) Native Hawaiians have also given expression to their
rights as native people to self-determination, self-governance,
and economic self-sufficiency--
(A) through the provision of governmental services
to Native Hawaiians, including the provision of--
(i) health care services;
(ii) educational programs;
(iii) employment and training programs;
(iv) economic development assistance
programs;
(v) children's services;
(vi) conservation programs;
(vii) fish and wildlife protection;
(viii) agricultural programs;
(ix) native language immersion programs;
(x) native language immersion schools from
kindergarten through high school;
(xi) college and master's degree programs
in native language immersion instruction; and
(xii) traditional justice programs; and
(B) by continuing their efforts to enhance Native
Hawaiian self-determination and local control;
(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;
(19) the Native Hawaiian people wish to preserve, develop,
and transmit to future generations of Native Hawaiians their
lands and Native Hawaiian political and cultural identity in
accordance with their traditions, beliefs, customs and
practices, language, and social and political institutions, to
control and manage their own lands, including ceded lands, and
to achieve greater self-determination over their own affairs;
(20) this Act provides a process within the framework of
Federal law for the Native Hawaiian people to exercise their
inherent rights as a distinct, indigenous, native community to
reorganize a single unified Native Hawaiian governing entity
for the purpose of giving expression to their rights as a
native people to self-determination and self-governance;
(21) Congress--
(A) has declared that the United States has a
special political and legal relationship for the
welfare of the native peoples of the United States,
including Native Hawaiians;
(B) has identified Native Hawaiians as an
indigenous, distinctly native people of the United
States within the scope of its authority under the
Constitution, and has enacted scores of statutes on
their behalf; and
(C) has delegated broad authority to the State of
Hawaii to administer some of the United States'
responsibilities as they relate to the Native Hawaiian
people and their lands;
(22) the United States has recognized and reaffirmed the
special political and legal relationship with the Native
Hawaiian people through the enactment of the Act entitled, ``An
Act to provide for the admission of the State of Hawaii into
the Union'', approved March 18, 1959 (Public Law 86-3; 73 Stat.
4), by--
(A) ceding to the State of Hawaii title to the
public lands formerly held by the United States, and
mandating that those lands be held as a public trust
for 5 purposes, 1 of which is for the betterment of the
conditions of Native Hawaiians; and
(B) transferring the United States responsibility
for the administration of the Hawaiian Home Lands to
the State of Hawaii, but retaining the exclusive right
of the United States to consent to any actions
affecting the lands included in the trust and any
amendments to the Hawaiian Homes Commission Act, 1920
(42 Stat. 108, chapter 42), that are enacted by the
legislature of the State of Hawaii affecting the
beneficiaries under the Act;
(23) the United States has continually recognized and
reaffirmed that--
(A) Native Hawaiians have a direct genealogical,
cultural, historic, and land-based connection to their
forebears, the aboriginal, indigenous, native people
who exercised original sovereignty over the Hawaiian
Islands;
(B) Native Hawaiians have never relinquished their
claims to sovereignty or their sovereign lands;
(C) the United States extends services to Native
Hawaiians because of their unique status as the native
people of a prior-sovereign nation with whom the United
States has a special political and legal relationship;
and
(D) the special relationship of American Indians,
Alaska Natives, and Native Hawaiians to the United
States arises out of their status as aboriginal,
indigenous, native people of the United States; and
(24) the State of Hawaii supports the reaffirmation of the
special political and legal relationship between the Native
Hawaiian governing entity and the United States, as evidenced
by 2 unanimous resolutions enacted by the Hawaii State
Legislature in the 2000 and 2001 sessions of the Legislature
and by the testimony of the Governor of the State of Hawaii
before the Committee on Indian Affairs of the Senate on
February 25, 2003, and March 1, 2005.
SEC. 3. DEFINITIONS.
In this Act:
(1) Aboriginal, indigenous, native people.--The term
``aboriginal, indigenous, native people'' means a 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.
(2) Apology resolution.--The term ``Apology Resolution''
means Public Law 103-150 (107 Stat. 1510), a Joint Resolution
extending an apology to Native Hawaiians on behalf of the
United States for the participation of agents of the United
States in the January 17, 1893, overthrow of the Kingdom of
Hawaii.
(3) Commission.--The term ``Commission'' means the
Commission established under section 8(b).
(4) Council.--The term ``Council'' means the Native
Hawaiian Interim Governing Council established under section
8(c)(2).
(5) Indian program or service.--
(A) In general.--The term ``Indian program or
service'' means any federally funded or authorized
program or service provided to an Indian tribe (or
member of an Indian tribe) because of the status of the
members of the Indian tribe as Indians.
(B) Inclusions.--The term ``Indian program or
service'' includes a program or service provided by the
Bureau of Indian Affairs, the Indian Health Service, or
any other Federal agency.
(6) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(7) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the aboriginal,
indigenous, native people of the United States.
(8) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(9) Native hawaiian governing entity.--The term ``Native
Hawaiian governing entity'' means the governing entity
organized pursuant to this Act by the qualified Native Hawaiian
constituents.
(10) Native hawaiian membership organization.--The term
``Native Hawaiian Membership Organization'' means an
organization that--
(A) 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;
(B) has leaders who are elected democratically, or
selected through traditional Native leadership
practices, by members of the Native Hawaiian community;
(C) advances the cause of Native Hawaiians
culturally, socially, economically, or politically;
(D) is a membership organization or association;
and
(E) has an accurate and reliable list of Native
Hawaiian members.
(11) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established by section
5(a).
(12) Qualified native hawaiian constituent.--For the
purposes of establishing the roll authorized under section 8,
and prior to the recognition by the United States of the Native
Hawaiian governing entity, the term ``qualified Native Hawaiian
constituent'' means an individual who the Commission determines
has satisfied the following criteria and who makes a written
statement certifying that he or she--
(A) is--
(i) 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--
(I) resided in the islands that now
comprise the State of Hawaii on or
before January 1, 1893; and
(II) occupied and exercised
sovereignty in the Hawaiian
archipelago, including the area that
now constitutes the State of Hawaii; or
(ii) 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;
(B) wishes to participate in the reorganization of
the Native Hawaiian governing entity;
(C) is 18 years of age or older;
(D) is a citizen of the United States; and
(E) maintains a significant cultural, social, or
civic connection to the Native Hawaiian community, as
evidenced by satisfying 2 or more of the following 10
criteria:
(i) Resides in the State of Hawaii.
(ii) Resides outside the State of Hawaii
and--
(I)(aa) currently serves or served
as (or has a parent or spouse who
currently serves or served as) a member
of the Armed Forces or as an employee
of the Federal Government; and
(bb) resided in the State of Hawaii
prior to the time he or she (or such
parent or spouse) left the State of
Hawaii to serve as a member of the
Armed Forces or as an employee of the
Federal Government; or
(II)(aa) currently is or was
enrolled (or has a parent or spouse who
currently is or was enrolled) in an
accredited institution of higher
education outside the State of Hawaii;
and
(bb) resided in the State of Hawaii
prior to the time he or she (or such
parent or spouse) left the State of
Hawaii to attend such institution.
(iii)(I) Is or was eligible to be a
beneficiary of the programs authorized by the
Hawaiian Homes Commission Act, 1920 (42 Stat.
108, chapter 42), and resides or resided on
land set aside as ``Hawaiian home lands'', as
defined in such Act; or
(II) Is a child or grandchild of an
individual who is or was eligible to be a
beneficiary of the programs authorized by such
Act and who resides or resided on land set
aside as ``Hawaiian home lands'', as defined in
such Act.
(iv) Is or was eligible to be a beneficiary
of the programs authorized by the Hawaiian
Homes Commission Act, 1920 (42 Stat. 108,
chapter 42).
(v) Is a child or grandchild of an
individual who is or was eligible to be a
beneficiary of the programs authorized by the
Hawaiian Homes Commission Act, 1920 (42 Stat.
108, chapter 42).
(vi) Resides on or has an ownership
interest in, or has a parent or grandparent who
resides on or has an ownership interest in,
``kuleana land'' that is owned in whole or in
part by a person who, according to a genealogy
verification by the Office of Hawaiian Affairs
or by court order, is a lineal descendant of
the person or persons who received the original
title to such ``kuleana land'', 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.
(vii) Is, or is the child or grandchild of,
an individual who has been or was a student for
at least 1 school year at a school or program
taught through the medium of the Hawaiian
language under section 302H-6, Hawaii Revised
Statutes, or at a school founded and operated
primarily or exclusively for the benefit of
Native Hawaiians.
(viii) Has been a member since September
30, 2009, of at least 1 Native Hawaiian
Membership Organization.
(ix) Has been a member since September 30,
2009, of at least 2 Native Hawaiian Membership
Organizations.
(x) Is regarded as a Native Hawaiian and
whose mother or father is (or if deceased, was)
regarded as Native Hawaiian by the Native
Hawaiian community, as evidenced by sworn
affidavits from two or more qualified Native
Hawaiian constituents certified by the
Commission as possessing expertise in the
social, cultural, and civic affairs of the
Native Hawaiian community.
(13) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(14) Special political and legal relationship.--The term
``special political and legal relationship'' shall refer,
except where differences are specifically indicated elsewhere
in the Act, to the type of and nature of relationship the
United States has with the several federally recognized Indian
tribes.
SEC. 4. UNITED STATES POLICY AND PURPOSE.
(a) Policy.--The United States reaffirms that--
(1) Native Hawaiians are a unique and distinct, indigenous,
native people with whom the United States has a special
political and legal relationship;
(2) the United States has a special political and legal
relationship with the Native Hawaiian people, which includes
promoting the welfare of Native Hawaiians;
(3)(A) Congress possesses and hereby exercises the
authority under the Constitution, including but not limited to
article I, section 8, clause 3, to enact legislation to better
the conditions of Native Hawaiians and has exercised this
authority through the enactment of--
(i) the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42);
(ii) the Act entitled ``An Act to provide for the
admission of the State of Hawaii into the Union'',
approved March 18, 1959 (Public Law 86-3; 73 Stat. 4);
and
(iii) more than 150 other Federal laws addressing
the conditions of Native Hawaiians;
(B) other sources of authority under the Constitution for
legislation on behalf of the indigenous, native peoples of the
United States, including Native Hawaiians, include but are not
limited to the Property, Treaty, and Supremacy Clauses, War
Powers, and the Fourteenth Amendment, and Congress hereby
relies on those powers in enacting this legislation; and
(C) the Constitution's original Apportionment Clause and
the 14th Amendment Citizenship and amended Apportionment
Clauses also acknowledge the propriety of legislation on behalf
of the native peoples of the United States, including Native
Hawaiians;
(4) Native Hawaiians have--
(A) an inherent right to autonomy in their internal
affairs;
(B) an inherent right of self-determination and
self-governance;
(C) the right to reorganize a Native Hawaiian
governing entity; and
(D) the right to become economically self-
sufficient; and
(5) the United States shall continue to engage in a process
of reconciliation and political relations with the Native
Hawaiian people.
(b) Purpose.--The purpose of this Act is to provide a process for
the reorganization of the 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.
SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.
(a) Establishment.--There is established within the Office of the
Secretary the United States Office for Native Hawaiian Relations.
(b) Duties.--The Office shall--
(1) continue the process of reconciliation with the Native
Hawaiian people in furtherance of the Apology Resolution;
(2) upon the reaffirmation of the government-to-government
relationship between the single Native Hawaiian governing
entity and the United States, effectuate and coordinate the
special political and legal relationship between the Native
Hawaiian governing entity and the United States through the
Secretary, and with all other Federal agencies;
(3) provide timely notice to, and consult with, the Native
Hawaiian governing entity before taking any actions that may
have the potential to significantly affect Native Hawaiian
resources, rights, or lands;
(4) work with the Interagency Coordinating Group, other
Federal agencies, and the State of Hawaii on policies,
practices, and proposed actions affecting Native Hawaiian
resources, rights, or lands; and
(5) prepare and submit to the Committee on Indian Affairs
and the Committee on Energy and Natural Resources of the Senate
and the Committee on Natural Resources of the House of
Representatives an annual report detailing the activities of
the Interagency Coordinating Group that are undertaken with
respect to the continuing process of reconciliation and to
effect meaningful consultation with the Native Hawaiian
governing entity and may provide recommendations for any
necessary changes to Federal law or regulations promulgated
under the authority of Federal law.
(c) Applicability to Department of Defense.--This section shall
have no applicability to the Department of Defense or to any agency or
component of the Department of Defense, but the Secretary of Defense
may designate 1 or more officials as liaison to the Office.
SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.
(a) Establishment.--In recognition that Federal programs authorized
to address the conditions of Native Hawaiians are largely administered
by Federal agencies other than the Department of the Interior, there is
established an interagency coordinating group, to be known as the
``Native Hawaiian Interagency Coordinating Group''.
(b) Composition.--The Interagency Coordinating Group shall be
composed of officials, to be designated by the President, from--
(1) each Federal agency whose actions may significantly or
uniquely impact Native Hawaiian programs, resources, rights, or
lands; and
(2) the Office.
(c) Lead Agency.--
(1) In general.--The Department of the Interior and the
White House Office of Intergovernmental Affairs shall serve as
the leaders of the Interagency Coordinating Group.
(2) Meetings.--The Secretary shall convene meetings of the
Interagency Coordinating Group.
(d) Duties.--The Interagency Coordinating Group shall--
(1) coordinate Federal programs and policies that affect
Native Hawaiians or actions by any agency or agencies of the
Federal Government that may significantly or uniquely affect
Native Hawaiian resources, rights, or lands;
(2) consult with the Native Hawaiian governing entity,
through the coordination referred to in paragraph (1), but the
consultation obligation established in this provision shall
apply only after the satisfaction of all of the conditions
referred to in section 8(c)(8); and
(3) ensure the participation of each Federal agency in the
development of the report to Congress authorized in section
5(b)(5).
(e) Applicability to Department of Defense.--This section shall
have no applicability to the Department of Defense or to any agency or
component of the Department of Defense, but the Secretary of Defense
may designate 1 or more officials as liaison to the Interagency
Coordinating Group.
SEC. 7. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE.
The Attorney General shall designate an appropriate official within
the Department of Justice to assist the Office in the implementation
and protection of the rights of Native Hawaiians and their political
and legal relationship with the United States, and upon the recognition
of the Native Hawaiian governing entity as provided for in section 8,
in the implementation and protection of the rights of the Native
Hawaiian governing entity and its political and legal relationship with
the United States.
SEC. 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.
(a) Recognition of Native Hawaiian Governing Entity.--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 is recognized by
the United States.
(b) Commission.--
(1) In general.--There is authorized to be established a
Commission to be composed of 9 members for the purposes of--
(A) preparing and maintaining a roll of qualified
Native Hawaiian constituents; and
(B) certifying that the individuals on the roll of
qualified Native Hawaiian constituents meet the
definition of qualified Native Hawaiian constituent set
forth in section 3.
(2) Membership.--
(A) Appointment.--
(i) In general.--Not later than 180 days
after the date of enactment of this Act, the
Secretary shall appoint the members of the
Commission in accordance with subparagraph (B).
(ii) Consideration.--In making an
appointment under clause (i), the Secretary may
take into consideration a recommendation made
by any Native Hawaiian Membership Organization.
(B) Requirements.--Each member of the Commission
shall demonstrate, as determined by the Secretary--
(i) not less than 10 years of experience in
the study and determination of Native Hawaiian
genealogy (traditional cultural experience
shall be given due consideration); and
(ii) an ability to read and translate into
English documents written in the Hawaiian
language.
(C) Vacancies.--A vacancy on the Commission--
(i) shall not affect the powers of the
Commission; and
(ii) shall be filled in the same manner as
the original appointment.
(3) Expenses.--Each member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of business
in the performance of services for the Commission.
(4) Duties.--The Commission shall--
(A) prepare and maintain a roll of qualified Native
Hawaiian constituents as set forth in subsection (c);
and
(B) certify that the individuals on the roll of
qualified Native Hawaiian constituents meet the
definition of that term as set forth in section 3.
(5) Staff.--
(A) In general.--The Commission may, without regard
to the civil service laws (including regulations),
appoint and terminate an executive director and such
other additional personnel as are necessary to enable
the Commission to perform the duties of the Commission.
(B) Compensation.--
(i) In general.--Except as provided in
clause (ii), the Commission may fix the
compensation of the executive director and
other personnel without regard to the
provisions of chapter 51 and subchapter III of
chapter 53 of title 5, United States Code,
relating to classification of positions and
General Schedule pay rates.
(ii) Maximum rate of pay.--The rate of pay
for the executive director and other personnel
shall not exceed the rate payable for level V
of the Executive Schedule under section 5316 of
title 5, United States Code.
(6) Detail of federal government employees.--
(A) In general.--An employee of the Federal
Government may be detailed to the Commission without
reimbursement.
(B) Civil service status.--The detail of the
employee shall be without interruption or loss of civil
service status or privilege.
(7) Procurement of temporary and intermittent services.--
The Commission may procure temporary and intermittent services
in accordance with section 3109(b) of title 5, United States
Code, at rates for individuals that do not exceed the daily
equivalent of the annual rate of basic pay prescribed for level
V of the Executive Schedule under section 5316 of that title.
(8) Expiration.--The Secretary shall dissolve the
Commission upon the reaffirmation of the special political and
legal relationship between the Native Hawaiian governing entity
and the United States.
(c) Process for Reorganization of Native Hawaiian Governing
Entity.--
(1) Roll.--
(A) Contents.--The roll shall include the names of
the qualified Native Hawaiian constituents who are
certified by the Commission to be qualified Native
Hawaiian constituents, as defined in section 3.
(B) Formation of roll.--Each individual claiming to
be a qualified Native Hawaiian constituent shall submit
to the Commission documentation in the form established
by the Commission that is sufficient to enable the
Commission to determine whether the individual meets
the definition set forth in section 3; Provided, That
an individual presenting evidence that he or she
satisfies the definition in section 2 of Public Law
103-150 shall be presumed to meet the requirement of
section 3(12)(A)(i).
(C) Documentation.--The Commission shall--
(i)(I) identify the types of documentation
that may be submitted to the Commission that
would enable the Commission to determine
whether an individual meets the definition of
qualified Native Hawaiian constituent set forth
in section 3;
(II) recognize an individual's
identification of lineal ancestors on the 1890
Census by the Kingdom of Hawaii as a reliable
indicia 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; and
(III) permit elderly Native Hawaiians and
other Native Hawaiians 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 2 or more qualified
Native Hawaiian constituents;
(ii) establish a standard format for the
submission of documentation and a process to
ensure veracity; and
(iii) publish information related to
clauses (i) and (ii) in the Federal Register.
(D) Consultation.--In making determinations that
each individual proposed for inclusion on the roll of
qualified Native Hawaiian constituents meets the
definition of qualified Native Hawaiian constituent in
section 3, the Commission may consult with Native
Hawaiian Membership Organizations, agencies of the
State of Hawaii including but not limited to the
Department of Hawaiian Home Lands, the Office of
Hawaiian Affairs, and the State Department of Health,
and other entities with expertise and experience in the
determination of Native Hawaiian ancestry and lineal
descendancy.
(E) Notification.--The Commission shall--
(i) inform an individual whether they have
been deemed by the Commission a qualified
Native Hawaiian constituent; and
(ii) inform an individual of a right to
appeal the decision if deemed not to be a
qualified Native Hawaiian constituent.
(F) Certification and submittal of roll to
secretary.--The Commission shall--
(i) submit the roll containing the names of
those individuals who meet the definition of
qualified Native Hawaiian constituent in
section 3 to the Secretary within 2 years from
the date on which the Commission is fully
composed; and
(ii) certify to the Secretary that each of
the qualified Native Hawaiian constituents
proposed for inclusion on the roll meets the
definition set forth in section 3.
(G) Publication.--Upon certification by the
Commission to the Secretary that those listed on the
roll meet the definition of qualified Native Hawaiian
constituent set forth in section 3, the Commission
shall publish the notice of the certification of the
roll in the Federal Register, notwithstanding pending
appeals pursuant to subparagraph (H).
(H) Appeal.--The Secretary, in consultation with
the Commission, shall establish a mechanism for an
administrative appeal for any person whose name is
excluded from the roll who claims to meet the
definition of qualified Native Hawaiian constituent in
section 3.
(I) Publication; update.--The Commission shall--
(i) publish the notice of the certification
of the roll regardless of whether appeals are
pending;
(ii) update the roll and provide notice of
the updated roll on the final disposition of
any appeal;
(iii) update the roll to include any person
who has been certified by the Commission as
meeting the definition of qualified Native
Hawaiian constituent in section 3 after the
initial publication of the roll or after any
subsequent publications of the roll; and
(iv) provide a copy of the roll and any
updated rolls to the Council.
(J) Effect of publication.--The publication of the
initial and updated roll shall serve as the basis for
the eligibility of qualified Native Hawaiian
constituents whose names are listed on those rolls to
participate in the reorganization of the Native
Hawaiian governing entity.
(2) Organization of council.--
(A) Organization.--The Commission, in consultation
with the Secretary, shall hold a minimum of 3 meetings
and each meeting shall be at least 2 working days of
the qualified Native Hawaiian constituents listed on
the roll established under this section--
(i) to develop criteria for candidates to
be elected to serve on the Council;
(ii) to determine the structure of the
Council, including the number of Council
members; and
(iii) to elect members from individuals
listed on the roll established under this
subsection to the Council.
(B) Powers.--
(i) In general.--The Council--
(I) shall represent those listed on
the roll established under this section
in the implementation of this Act; and
(II) shall have no powers other
than powers given to the Council under
this Act.
(ii) Funding.--The Council may enter into a
contract with, or obtain a grant from, any
Federal or State agency to carry out clause
(iii).
(iii) Activities.--
(I) In general.--The Council shall
conduct, among the qualified Native
Hawaiian constituents listed on the
roll established under this subsection,
a referendum for the purpose of
determining the proposed elements of
the organic governing documents of the
Native Hawaiian governing entity,
including but not limited to--
(aa) the proposed criteria
for future membership in the
Native Hawaiian governing
entity;
(bb) the proposed powers
and authorities to be exercised
by the Native Hawaiian
governing entity, as well as
the proposed privileges and
immunities of the Native
Hawaiian governing entity;
(cc) the proposed civil
rights and protection of the
rights of the citizens of the
Native Hawaiian governing
entity and all persons affected
by the exercise of governmental
powers and authorities of the
Native Hawaiian governing
entity; and
(dd) other issues
determined appropriate by the
Council.
(II) Development of organic
governing documents.--Based on the
referendum, the Council shall develop
proposed organic governing documents
for the Native Hawaiian governing
entity and may seek technical
assistance from the Secretary on the
draft organic governing documents to
ensure that the draft organic governing
documents comply with this Act and
other Federal law.
(III) Distribution.--The Council
shall publish to all qualified Native
Hawaiian constituents of the Native
Hawaiian governing entity listed on the
roll published under this subsection
notice of the availability of--
(aa) a copy of the proposed
organic governing documents, as
drafted by the Council; and
(bb) a brief impartial
description of the proposed
organic governing documents;
(IV) Elections.--
(aa) In general.--Not
sooner than 180 days after the
proposed organic governing
documents are drafted and
distributed, the Council, with
the assistance of the
Secretary, shall hold elections
for the purpose of ratifying
the proposed organic governing
documents.
(bb) Purpose.--The Council,
with the assistance of the
Secretary, shall hold the
election for the purpose of
ratifying the proposed organic
governing documents 60 days
after publishing notice of an
election.
(cc) Officers.--On
certification of the organic
governing documents by the
Secretary in accordance with
paragraph (4), the Council,
with the assistance of the
Secretary, shall hold elections
of the officers of the Native
Hawaiian governing entity
pursuant to paragraph (5).
(3) Submittal of organic governing documents.--Following
the reorganization of the Native Hawaiian governing entity and
the adoption of organic governing documents, the Council shall
submit the organic governing documents of the Native Hawaiian
governing entity to the Secretary.
(4) Certifications.--
(A) In general.--Within the context of the future
negotiations to be conducted under the authority of
section 9(b)(1), and the subsequent actions by the
Congress and the State of Hawaii to enact legislation
to implement the agreements of the 3 governments, not
later than 180 days, which may be extended an
additional 90 days if the Secretary deems necessary,
after the date on which the Council submits the organic
governing documents to the Secretary, the Secretary
shall certify or decline to certify that the organic
governing documents--
(i) establish the criteria for membership
in the Native Hawaiian governing entity;
(ii) were adopted by a majority vote of
those qualified Native Hawaiian constituents
whose names are listed on the roll published by
the Secretary and who voted in the election;
(iii) provide authority for the Native
Hawaiian governing entity to negotiate with
Federal, State, and local governments, and
other entities;
(iv) provide for the exercise of inherent
and other appropriate governmental authorities
by the Native Hawaiian governing entity;
(v) prevent the sale, disposition, lease,
or encumbrance of lands, interests in lands, or
other assets of the Native Hawaiian governing
entity without the consent of the Native
Hawaiian governing entity;
(vi) provide for the protection of the
civil rights of the 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
(vii) are consistent with applicable
Federal law.
(B) Resubmission in case of noncompliance.--
(i) Resubmission by the secretary.--If the
Secretary determines that the organic governing
documents, or any part of the documents, do not
meet all of the requirements set forth in
subparagraph (A), the Secretary shall resubmit
the organic governing documents to the Council,
along with a justification for each of the
Secretary's findings as to why the provisions
are not in full compliance.
(ii) Amendment and resubmission of organic
governing documents.--If the organic governing
documents are resubmitted to the Council by the
Secretary under clause (i), the Council shall--
(I) amend the organic governing
documents to ensure that the documents
meet all the requirements set forth in
subparagraph (A); and
(II) resubmit the amended organic
governing documents to the Secretary
for certification in accordance with
this paragraph.
(C) Certifications deemed made.--The certifications
under this paragraph shall be deemed to have been made
if the Secretary has not acted within 180 days after
the date on which the Council has submitted the organic
governing documents of the Native Hawaiian governing
entity to the Secretary.
(5) Elections.--On completion of the certifications by the
Secretary under paragraph (4), the Council, with the assistance
of the Secretary, shall hold elections of the officers of the
Native Hawaiian governing entity.
(6) Provision of roll.--The Council shall provide a copy of
the roll of qualified Native Hawaiian constituents to the
governing body of the Native Hawaiian governing entity.
(7) Termination.--The Council shall cease to exist and
shall have no power or authority under this Act after the
officers of the governing body who are elected as provided in
paragraph (5) are installed.
(8) Reaffirmation.--Notwithstanding any other provision of
law, the special political and legal relationship between the
United States and the Native Hawaiian people is hereby
reaffirmed and the United States extends Federal recognition to
the Native Hawaiian governing entity as the representative
sovereign governing body of the Native Hawaiian people after--
(A) the approval of the organic governing documents
by the Secretary under subparagraph (A) or (C) of
paragraph (4); and
(B) the officers of the Native Hawaiian governing
entity elected under paragraph (5) have been installed.
SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY TO STATE OF
HAWAII; NEGOTIATIONS; CLAIMS.
(a) Reaffirmation.--The delegation by the United States of
authority to the State of Hawaii to address the conditions of the
indigenous, native people of Hawaii contained in the Act entitled ``An
Act to provide for the admission of the State of Hawaii into the
Union'', approved March 18, 1959 (Public Law 86-3; 73 Stat. 4), is
reaffirmed.
(b) Negotiations.--
(1) In general.--Upon the reaffirmation of the special
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 designed to lead to an agreement or
agreements addressing such matters as--
(A) 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;
(B) the exercise of governmental authority over any
transferred lands, natural resources, and other assets,
including land use;
(C) the exercise of civil and criminal
jurisdiction;
(D) 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;
(E) any residual responsibilities of the United
States and the State of Hawaii; and
(F) grievances regarding assertions of historical
wrongs committed against Native Hawaiians by the United
States or by the State of Hawaii.
(2) Amendments to existing laws.--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--
(A) to the Committee on Indian Affairs of the
Senate, the Committee on Energy and Natural Resources
of the Senate, and the Committee on Natural Resources
of the House of Representatives recommendations for
proposed amendments to Federal law that will enable the
implementation of agreements reached between the
governments; and
(B) to the Governor and the legislature of the
State of Hawaii, recommendations for proposed
amendments to State law that will enable the
implementation of agreements reached between the
governments.
(3) Governmental authority and power.--The Native Hawaiian
governing entity shall be vested with the inherent powers and
privileges of self-government of a native government under
existing law, except as set forth in section 10(a). Said powers
and privileges may be modified by agreement between the Native
Hawaiian governing entity, the United States, and the State
pursuant to paragraph (1), subject to the limit described by
section 10(a). Unless so agreed, 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.
(4) Membership.--Once the United States extends Federal
recognition to the Native Hawaiian governing entity, the United
States will recognize and affirm the Native Hawaiian governing
entity's inherent power and authority 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.
(c) Claims.--Nothing in this Act--
(1) 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;
(2) 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 (including the
defense of statute of limitations) to any such claim or cause
of action; or
(3) amends section 2409a of title 28, United States Code
(commonly known as the ``Quiet Title Act''), chapter 171 of
title 28, United States Code (commonly known as the ``Federal
Tort Claims Act''), section 1491 of title 28, United States
Code (commonly known as the ``Tucker Act''), section 1505 of
title 28, United States Code (commonly known as the ``Indian
Tucker Act''), the Hawaii Organic Act (31 Stat. 141), or any
other Federal statute, except as expressly amended by this Act.
SEC. 10. APPLICABILITY OF CERTAIN FEDERAL LAWS.
(a) Indian Gaming Regulatory Act.--
(1) In general.--The Native Hawaiian governing entity and
Native Hawaiians may not conduct gaming activities as a matter
of claimed inherent authority or under the authority of any
Federal law, including the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) or under any regulations thereunder
promulgated by the Secretary or the National Indian Gaming
Commission.
(2) Applicability.--The prohibition contained in paragraph
(1) regarding the use of Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.) and inherent authority to game applies
regardless of whether gaming by Native Hawaiians or the Native
Hawaiian governing entity would be located on land within the
State of Hawaii or within any other State or territory of the
United States.
(b) Single Governing Entity.--This Act will result in the
recognition of the single Native Hawaiian governing entity. Additional
Native Hawaiian groups shall not be eligible for acknowledgment
pursuant to the Federal Acknowledgment Process set forth in part 83 of
title 25, Code of Federal Regulations, or any other administrative
acknowledgment or recognition process.
(c) Indian Civil Rights Act of 1968.--The Council and the
subsequent governing entity recognized under this Act shall be an
Indian tribe, as defined in section 201 of the Indian Civil Rights Act
of 1968 (25 U.S.C. 1301) for purposes of sections 201 through 203 of
that Act (25 U.S.C. 1301-1303).
(d) Indian Programs, Services, and Laws.--
(1) In general.--Notwithstanding any other provision of
this Act, nothing in this Act extends eligibility for any
Indian program or service to the Native Hawaiian governing
entity or its members unless a statute governing such a program
or service expressly provides that Native Hawaiians or the
Native Hawaiian governing entity is eligible for such program
or service. Nothing in this Act affects the eligibility of any
person for any program or service under any statute or law in
effect before the date of enactment of this Act.
(2) Applicability of other terms.--In Federal statutes or
regulations in force prior to the United States' recognition of
the Native Hawaiian governing entity, the terms ``Indian'' and
``Native American'', and references to Indian tribes, bands,
nations, pueblos, villages, or other organized groups or
communities, shall not apply to the Native Hawaiian governing
entity or its members, unless the Federal statute or regulation
expressly applies to Native Hawaiians or the Native Hawaiian
governing entity.
(e) Real Property Transfers.--Section 2116 of the Revised Statutes
(commonly known as the ``Indian Trade and Intercourse Act'') (25 U.S.C.
177) does not apply to any purchase, grant, lease, or other conveyance
of lands, or of any title or claim thereto, from Native Hawaiians,
Native Hawaiian entities, or the Kingdom of Hawaii that occurred prior
to the date of the United States recognition of the Native Hawaiian
governing entity.
SEC. 11. SEVERABILITY.
If any section or provision of this Act is held invalid, it is the
intent of Congress that the remaining sections or provisions shall
continue in full force and effect.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary
to carry out this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S1978-1979)
Read twice and referred to the Committee on Indian Affairs. (text of measure as introduced: CR S1979-1984)
Committee on Indian Affairs. Ordered to be reported without amendment favorably.
Committee on Indian Affairs. Ordered to be reported with an amendment in the nature of a substitute favorably.
Committee on Indian Affairs. Reported by Senator Akaka with an amendment in the nature of a substitute. With written report No. 112-251. Additional views filed.
Committee on Indian Affairs. Reported by Senator Akaka with an amendment in the nature of a substitute. With written report No. 112-251. Additional views filed.
Placed on Senate Legislative Calendar under General Orders. Calendar No. 568.
Llama 3.2 · runs locally in your browser
Ask anything about this bill. The AI reads the full text to answer.
Enter to send · Shift+Enter for new line