[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 344 Reported in Senate (RS)]
Calendar No. 185
108th CONGRESS
1st Session
S. 344
[Report No. 108-85]
Expressing 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, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 11, 2003
Mr. Akaka (for himself, Mr. Inouye, Mr. Reid, and Mr. Stevens)
introduced the following bill; which was read twice and referred to the
Committee on Indian Affairs
June 27, 2003
Reported by Mr. Campbell, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
Expressing 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, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. FINDINGS.</DELETED>
<DELETED> Congress makes the following findings:</DELETED>
<DELETED> (1) The Constitution vests Congress with the
authority to address the conditions of the indigenous, native
people of the United States.</DELETED>
<DELETED> (2) Native Hawaiians, the native people of the
Hawaiian archipelago which is now part of the United States,
are indigenous, native people of the United States.</DELETED>
<DELETED> (3) The United States has a special trust
relationship to promote the welfare of the native people of the
United States, including Native Hawaiians.</DELETED>
<DELETED> (4) Under the treaty making power of the United
States, Congress exercised its constitutional authority to
confirm a treaty between the United States and the government
that represented the Hawaiian people, and from 1826 until 1893,
the United States recognized the independence of the Kingdom of
Hawaii, extended full diplomatic recognition to the Hawaiian
Government, and entered into treaties and conventions with the
Hawaiian monarchs to govern commerce and navigation in 1826,
1842, 1849, 1875, and 1887.</DELETED>
<DELETED> (5) Pursuant to the provisions of the Hawaiian
Homes Commission Act, 1920 (42 Stat. 108, chapter 42), the
United States set aside 203,500 acres of land in the Federal
territory that later became the State of Hawaii to address the
conditions of Native Hawaiians.</DELETED>
<DELETED> (6) By setting aside 203,500 acres of land for
Native Hawaiian homesteads and farms, the Act assists the
Native Hawaiian community in maintaining distinct native
settlements throughout the State of Hawaii.</DELETED>
<DELETED> (7) Approximately 6,800 Native Hawaiian lessees
and their family members reside on Hawaiian Home Lands and
approximately 18,000 Native Hawaiians who are eligible to
reside on the Home Lands are on a waiting list to receive
assignments of land.</DELETED>
<DELETED> (8) In 1959, as part of the compact admitting
Hawaii into the United States, Congress established the Ceded
Lands Trust for 5 purposes, 1 of which is the betterment of the
conditions of Native Hawaiians. Such trust consists of
approximately 1,800,000 acres of land, submerged lands, and the
revenues derived from such lands, the assets of which have
never been completely inventoried or segregated.</DELETED>
<DELETED> (9) Throughout the years, Native Hawaiians have
repeatedly sought access to the Ceded Lands Trust and its
resources and revenues in order to establish and maintain
native settlements and distinct native communities throughout
the State.</DELETED>
<DELETED> (10) The Hawaiian Home Lands and the Ceded Lands
provide an important foundation for the ability of the Native
Hawaiian community to maintain the practice of Native Hawaiian
culture, language, and traditions, and for the survival of the
Native Hawaiian people.</DELETED>
<DELETED> (11) Native Hawaiians have maintained other
distinctly native areas in Hawaii.</DELETED>
<DELETED> (12) 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.</DELETED>
<DELETED> (13) The Apology Resolution acknowledges that the
overthrow of the Kingdom of Hawaii occurred with the active
participation of agents and citizens of the United States and
further acknowledges that the Native Hawaiian people never
directly relinquished their claims to their inherent
sovereignty as a people over their national lands to the United
States, either through their monarchy or through a plebiscite
or referendum.</DELETED>
<DELETED> (14) The Apology Resolution expresses the
commitment of Congress and the President to acknowledge the
ramifications of the overthrow of the Kingdom of Hawaii and to
support reconciliation efforts between the United States and
Native Hawaiians; and to have Congress and the President,
through the President's designated officials, consult with
Native Hawaiians on the reconciliation process as called for
under the Apology Resolution.</DELETED>
<DELETED> (15) Despite the overthrow of the Hawaiian
Government, Native Hawaiians have continued to maintain their
separate identity as a distinct native community through the
formation of cultural, social, and political institutions, and
to give expression to their rights as native people to self-
determination and self-governance as evidenced through their
participation in the Office of Hawaiian Affairs.</DELETED>
<DELETED> (16) Native Hawaiians also give expression to
their rights as native people to self-determination and self-
governance through the provision of governmental services to
Native Hawaiians, including the provision of health care
services, educational programs, employment and training
programs, children's services, conservation programs, fish and
wildlife protection, agricultural programs, native language
immersion programs and native language immersion schools from
kindergarten through high school, as well as college and
master's degree programs in native language immersion
instruction, and traditional justice programs, and by
continuing their efforts to enhance Native Hawaiian self-
determination and local control.</DELETED>
<DELETED> (17) Native Hawaiians 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.</DELETED>
<DELETED> (18) The Native Hawaiian people wish to preserve,
develop, and transmit to future Native Hawaiian generations
their ancestral lands and Native Hawaiian political and
cultural identity in accordance with their traditions, beliefs,
customs and practices, language, and social and political
institutions, and to achieve greater self-determination over
their own affairs.</DELETED>
<DELETED> (19) This Act provides for a process within the
framework of Federal law for the Native Hawaiian people to
exercise their inherent rights as a distinct aboriginal,
indigenous, native community to reorganize a Native Hawaiian
governing entity for the purpose of giving expression to their
rights as native people to self-determination and self-
governance.</DELETED>
<DELETED> (20) The United States has declared that--
</DELETED>
<DELETED> (A) the United States has a special
responsibility for the welfare of the native peoples of
the United States, including Native
Hawaiians;</DELETED>
<DELETED> (B) Congress has identified Native
Hawaiians as a distinct indigenous group within the
scope of its Indian affairs power, and has enacted
dozens of statutes on their behalf pursuant to its
recognized trust responsibility; and</DELETED>
<DELETED> (C) Congress has also delegated broad
authority to administer a portion of the Federal trust
responsibility to the State of Hawaii.</DELETED>
<DELETED> (21) The United States has recognized and
reaffirmed the special trust 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--</DELETED>
<DELETED> (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 in public trust
for 5 purposes, one of which is for the betterment of
the conditions of Native Hawaiians; and</DELETED>
<DELETED> (B) transferring the United States
responsibility for the administration of the Hawaiian
Home Lands to the State of Hawaii, but retaining the
authority to enforce the trust, including the exclusive
right of the United States to consent to any actions
affecting the lands which comprise the corpus of 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.</DELETED>
<DELETED> (22) The United States continually has recognized
and reaffirmed that--</DELETED>
<DELETED> (A) Native Hawaiians have a cultural,
historic, and land-based link to the aboriginal, native
people who exercised sovereignty over the Hawaiian
Islands;</DELETED>
<DELETED> (B) Native Hawaiians have never
relinquished their claims to sovereignty or their
sovereign lands;</DELETED>
<DELETED> (C) the United States extends services to
Native Hawaiians because of their unique status as the
aboriginal, native people of a once sovereign nation
with whom the United States has a political and legal
relationship; and</DELETED>
<DELETED> (D) the special trust 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.</DELETED>
<DELETED>SEC. 2. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Aboriginal, indigenous, native people.--The
term ``aboriginal, indigenous, native people'' means those
people whom Congress has recognized as the original inhabitants
of the lands and who exercised sovereignty prior to European
contact in the areas that later became part of the United
States.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (3) Ceded lands.--The term ``ceded lands'' means
those lands which were ceded to the United States by the
Republic of Hawaii under the Joint Resolution to provide for
annexing the Hawaiian Islands to the United States of July 7,
1898 (30 Stat. 750), and which were later transferred to the
State of Hawaii 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).</DELETED>
<DELETED> (4) Indigenous, native people.--The term
``indigenous, native people'' means the lineal descendants of
the aboriginal, indigenous, native people of the United
States.</DELETED>
<DELETED> (5) Interagency coordinating group.--The term
``Interagency Coordinating Group'' means the Native Hawaiian
Interagency Coordinating Group established under section
5.</DELETED>
<DELETED> (6) Native hawaiian.--</DELETED>
<DELETED> (A) Prior to the recognition by the United
States of the Native Hawaiian governing entity, the
term ``Native Hawaiian'' means the indigenous, native
people of Hawaii who are the direct lineal descendants
of the aboriginal, indigenous, native people who
resided in the islands that now comprise the State of
Hawaii on or before January 1, 1893, and who occupied
and exercised sovereignty in the Hawaiian archipelago,
including the area that now constitutes the State of
Hawaii, and includes all Native Hawaiians who were
eligible in 1921 for the programs authorized by the
Hawaiian Homes Commission Act (42 Stat. 108, chapter
42) and their lineal descendants.</DELETED>
<DELETED> (B) Following the recognition by the
United States of the Native Hawaiian governing entity,
the term ``Native Hawaiian'' shall have the meaning
given to such term in the organic governing documents
of the Native Hawaiian governing entity.</DELETED>
<DELETED> (7) Native hawaiian governing entity.--The term
``Native Hawaiian governing entity'' means the governing entity
organized by the Native Hawaiian people.</DELETED>
<DELETED> (8) Secretary.--The term ``Secretary'' means the
Secretary of the Interior.</DELETED>
<DELETED>SEC. 3. UNITED STATES POLICY AND PURPOSE.</DELETED>
<DELETED> (a) Policy.--The United States reaffirms that--</DELETED>
<DELETED> (1) Native Hawaiians are a unique and distinct,
indigenous, native people, with whom the United States has a
political and legal relationship;</DELETED>
<DELETED> (2) the United States has a special trust
relationship to promote the welfare of Native
Hawaiians;</DELETED>
<DELETED> (3) Congress possesses the authority under the
Constitution to enact legislation to address the conditions of
Native Hawaiians and has exercised this authority through the
enactment of--</DELETED>
<DELETED> (A) the Hawaiian Homes Commission Act,
1920 (42 Stat. 108, chapter 42);</DELETED>
<DELETED> (B) 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</DELETED>
<DELETED> (C) more than 150 other Federal laws
addressing the conditions of Native
Hawaiians;</DELETED>
<DELETED> (4) Native Hawaiians have--</DELETED>
<DELETED> (A) an inherent right to autonomy in their
internal affairs;</DELETED>
<DELETED> (B) an inherent right of self-
determination and self-governance; and</DELETED>
<DELETED> (C) the right to reorganize a Native
Hawaiian governing entity; and</DELETED>
<DELETED> (5) the United States shall continue to engage in
a process of reconciliation and political relations with the
Native Hawaiian people.</DELETED>
<DELETED> (b) Purpose.--It is the intent of Congress that the
purpose of this Act is to provide a process for the recognition by the
United States of a Native Hawaiian governing entity for purposes of
continuing a government-to-government relationship.</DELETED>
<DELETED>SEC. 4. ESTABLISHMENT OF THE UNITED STATES OFFICE FOR NATIVE
HAWAIIAN RELATIONS.</DELETED>
<DELETED> (a) In General.--There is established within the Office of
the Secretary the United States Office for Native Hawaiian
Relations.</DELETED>
<DELETED> (b) Duties of the Office.--The United States Office for
Native Hawaiian Relations shall--</DELETED>
<DELETED> (1) effectuate and coordinate the trust
relationship between the Native Hawaiian people and the United
States, and upon the recognition of the Native Hawaiian
governing entity by the United States, between the Native
Hawaiian governing entity and the United States through the
Secretary, and with all other Federal agencies;</DELETED>
<DELETED> (2) continue the process of reconciliation with
the Native Hawaiian people, and upon the recognition of the
Native Hawaiian governing entity by the United States, continue
the process of reconciliation with the Native Hawaiian
governing entity;</DELETED>
<DELETED> (3) fully integrate the principle and practice of
meaningful, regular, and appropriate consultation with the
Native Hawaiian governing entity by providing timely notice to,
and consulting with the Native Hawaiian people and the Native
Hawaiian governing entity prior to taking any actions that may
have the potential to significantly affect Native Hawaiian
resources, rights, or lands;</DELETED>
<DELETED> (4) consult with the Interagency Coordinating
Group, other Federal agencies, and with relevant agencies of
the State of Hawaii on policies, practices, and proposed
actions affecting Native Hawaiian resources, rights, or lands;
and</DELETED>
<DELETED> (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 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 providing recommendations for any
necessary changes to existing Federal statutes or regulations
promulgated under the authority of Federal law.</DELETED>
<DELETED>SEC. 5. NATIVE HAWAIIAN INTERAGENCY COORDINATING
GROUP.</DELETED>
<DELETED> (a) Establishment.--In recognition of the fact 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''.</DELETED>
<DELETED> (b) Composition.--The Interagency Coordinating Group shall
be composed of officials, to be designated by the President, from--
</DELETED>
<DELETED> (1) each Federal agency that administers Native
Hawaiian programs, establishes or implements policies that
affect Native Hawaiians, or whose actions may significantly or
uniquely impact on Native Hawaiian resources, rights, or lands;
and</DELETED>
<DELETED> (2) the United States Office for Native Hawaiian
Relations established under section 4.</DELETED>
<DELETED> (c) Lead Agency.--The Department of the Interior shall
serve as the lead agency of the Interagency Coordinating Group, and
meetings of the Interagency Coordinating Group shall be convened by the
lead agency.</DELETED>
<DELETED> (d) Duties.--The responsibilities of the Interagency
Coordinating Group shall be--</DELETED>
<DELETED> (1) the coordination of Federal programs and
policies that affect Native Hawaiians or actions by any agency
or agencies of the Federal Government which may significantly
or uniquely impact on Native Hawaiian resources, rights, or
lands;</DELETED>
<DELETED> (2) to assure that each Federal agency develops a
policy on consultation with the Native Hawaiian people, and
upon recognition of the Native Hawaiian governing entity by the
United States, consultation with the Native Hawaiian governing
entity; and</DELETED>
<DELETED> (3) to assure the participation of each Federal
agency in the development of the report to Congress authorized
in section 4(b)(5).</DELETED>
<DELETED>SEC. 6. PROCESS FOR THE RECOGNITION OF THE NATIVE HAWAIIAN
GOVERNING ENTITY.</DELETED>
<DELETED> (a) Recognition of the Native Hawaiian Governing Entity.--
The right of the Native Hawaiian people to organize for their common
welfare and to adopt appropriate organic governing documents is hereby
recognized by the United States.</DELETED>
<DELETED> (b) Process for Recognition.--</DELETED>
<DELETED> (1) Submittal of organic governing documents.--
Following the organization of the Native Hawaiian governing
entity, the adoption of organic governing documents, and the
election of officers of the Native Hawaiian governing entity,
the duly elected officers of the Native Hawaiian governing
entity shall submit the organic governing documents of the
Native Hawaiian governing entity to the Secretary.</DELETED>
<DELETED> (2) Certifications.--</DELETED>
<DELETED> (A) In general.--Within 90 days of the
date that the duly elected officers of the Native
Hawaiian governing entity submit the organic governing
documents to the Secretary, the Secretary shall certify
that the organic governing documents--</DELETED>
<DELETED> (i) establish the criteria for
citizenship in the Native Hawaiian governing
entity;</DELETED>
<DELETED> (ii) were adopted by a majority
vote of the citizens of the Native Hawaiian
governing entity;</DELETED>
<DELETED> (iii) provide for the exercise of
governmental authorities by the Native Hawaiian
governing entity;</DELETED>
<DELETED> (iv) provide for the Native
Hawaiian governing entity to negotiate with
Federal, State, and local governments, and
other entities;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (vi) provide for the protection of
the civil rights of the citizens of the Native
Hawaiian governing entity and all persons
subject to the authority of the Native Hawaiian
governing entity, and ensure that the Native
Hawaiian governing entity exercises its
authority consistent with the requirements of
section 202 of the Act of April 11, 1968 (25
U.S.C. 1302); and</DELETED>
<DELETED> (vii) are consistent with
applicable Federal law and the special trust
relationship between the United States and the
indigenous native people of the United
States.</DELETED>
<DELETED> (B) By the secretary.--Within 90 days of
the date that the duly elected officers of the Native
Hawaiian governing entity submit the organic governing
documents to the Secretary, the Secretary shall certify
that the State of Hawaii supports the recognition of a
Native Hawaiian governing entity by the United States
as evidenced by a resolution or act of the Hawaii State
legislature.</DELETED>
<DELETED> (C) Resubmission in case of noncompliance
with federal law.--</DELETED>
<DELETED> (i) Resubmission by the
secretary.--If the Secretary determines that
the organic governing documents, or any part
thereof, are not consistent with applicable
Federal law, the Secretary shall resubmit the
organic governing documents to the duly elected
officers of the Native Hawaiian governing
entity along with a justification for each of
the Secretary's findings as to why the
provisions are not consistent with such
law.</DELETED>
<DELETED> (ii) Amendment and resubmission by
the native hawaiian governing entity.--If the
organic governing documents are resubmitted to
the duly elected officers of the Native
Hawaiian governing entity by the Secretary
under clause (i), the duly elected officers of
the Native Hawaiian governing entity shall--
</DELETED>
<DELETED> (I) amend the organic
governing documents to ensure that the
documents comply with applicable
Federal law; and</DELETED>
<DELETED> (II) resubmit the amended
organic governing documents to the
Secretary for certification in
accordance with the requirements of
this paragraph.</DELETED>
<DELETED> (D) Certifications deemed made.--The
certifications authorized in subparagraph (B) shall be
deemed to have been made if the Secretary has not acted
within 90 days of the date that the duly elected
officers of the Native Hawaiian governing entity have
submitted the organic governing documents of the Native
Hawaiian governing entity to the Secretary.</DELETED>
<DELETED> (3) Federal recognition.--Notwithstanding any
other provision of law, upon the election of the officers of
the Native Hawaiian governing entity and the certifications by
the Secretary required under paragraph (1), the United States
hereby extends Federal recognition to the Native Hawaiian
governing entity as the representative governing body of the
Native Hawaiian people.</DELETED>
<DELETED>SEC. 7. AUTHORIZATION OF APPROPRIATIONS.</DELETED>
<DELETED> There is authorized to be appropriated such sums as may be
necessary to carry out the activities authorized in this Act.</DELETED>
<DELETED>SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY;
NEGOTIATIONS.</DELETED>
<DELETED> (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. 5) is hereby
reaffirmed.</DELETED>
<DELETED> (b) Negotiations.--Upon the Federal recognition of the
Native Hawaiian governing entity by the United States, the United
States is authorized to negotiate and enter into an agreement with the
State of Hawaii and the Native Hawaiian governing entity regarding the
transfer of lands, resources, and assets dedicated to Native Hawaiian
use to the Native Hawaiian governing entity. Nothing in this Act is
intended to serve as a settlement of any claims against the United
States.</DELETED>
<DELETED>SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.</DELETED>
<DELETED> (a) Indian Gaming Regulatory Act.--Nothing contained in
this Act shall be construed as an authorization for the Native Hawaiian
governing entity to conduct gaming activities under the authority of
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).</DELETED>
<DELETED> (b) Bureau of Indian Affairs.--Nothing contained in this
Act shall be construed as an authorization for eligibility to
participate in any programs and services provided by the Bureau of
Indian Affairs for any persons not otherwise eligible for such programs
or services.</DELETED>
<DELETED>SEC. 10. SEVERABILITY.</DELETED>
<DELETED> In the event that any section or provision of this Act is
held invalid, it is the intent of Congress that the remaining sections
or provisions of this Act shall continue in full force and
effect.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native Hawaiian Recognition Act of
2003''.
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;
(2) Native Hawaiians, the native people of the Hawaiian
archipelago that is now part of the United States, are
indigenous, native people of the United States;
(3) the United States has a special political and legal
responsibility to promote the welfare of the native people of
the United States, including Native Hawaiians;
(4) under the treaty making power of the United States,
Congress exercised its constitutional authority to confirm
treaties between the United States and the Kingdom of Hawaii,
and from 1826 until 1893, the United States--
(A) recognized the independence of the Kingdom of
Hawaii;
(B) accorded full diplomatic recognition to the
Kingdom of Hawaii; and
(C) entered into treaties and conventions with the
Hawaiian monarchs to govern 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 203,500
acres of land in the Federal territory that later became the
State of Hawaii to address the conditions of Native Hawaiians;
(6) by setting aside 203,500 acres of land for Native
Hawaiian homesteads and farms, the Act assists the Native
Hawaiian community in maintaining distinct native settlements
throughout the State of Hawaii;
(7) approximately 6,800 Native Hawaiian lessees and their
family members reside on Hawaiian Home Lands and approximately
18,000 Native Hawaiians who are eligible to reside on the Home
Lands are on a waiting list to receive assignments of land;
(8)(A) in 1959, as part of the compact admitting Hawaii
into the Union, Congress established a public trust (commonly
known as the ``ceded lands trust''), for 5 purposes, 1 of which
is the betterment of the conditions of Native Hawaiians;
(B) the 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) throughout the years, Native Hawaiians have repeatedly
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
an important foundation for the ability of the Native Hawaiian
community to maintain the practice of Native Hawaiian culture,
language, and traditions, and for the survival and economic
self-sufficiency of the Native Hawaiian people;
(11) Native Hawaiians have maintained other distinctly
native areas in Hawaii;
(12) 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;
(13) the Apology Resolution acknowledges that the overthrow
of the Kingdom of Hawaii occurred with the active participation
of agents and citizens of the United States and further
acknowledges that the Native Hawaiian people never directly
relinquished their claims to their inherent sovereignty as a
people over their national lands to the United States, either
through their monarchy or through a plebiscite or referendum;
(14) the Apology Resolution expresses the commitment of
Congress and the President--
(A) to acknowledge the ramifications of the
overthrow of the Kingdom of Hawaii;
(B) to support reconciliation efforts between the
United States and Native Hawaiians; and
(C) to have Congress and the President, through the
President's designated officials, consult with Native
Hawaiians on the reconciliation process as called for
under the Apology Resolution;
(15) despite the overthrow of the Hawaiian Government,
Native Hawaiians have continued to maintain their separate
identity as a distinct native community through the formation
of cultural, social, and political institutions, and to give
expression to their rights as native people to self-
determination, self-governance, and economic self-sufficiency;
(16) Native Hawaiians also give 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;
(17) Native Hawaiians 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;
(18) the Native Hawaiian people wish to preserve, develop,
and transmit to future Native Hawaiian generations 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;
(19) this Act provides for a process within the framework
of Federal law for the Native Hawaiian people to exercise their
inherent rights as a distinct aboriginal, indigenous, native
community to reorganize a Native Hawaiian governing entity for
the purpose of giving expression to their rights as native
people to self-determination and self-governance;
(20) Congress--
(A) has declared that the United States has a
special responsibility for the welfare of the native
peoples of the United States, including Native
Hawaiians;
(B) has identified Native Hawaiians as a distinct
indigenous group within the scope of its Indian affairs
power, and has enacted dozens of statutes on their
behalf pursuant to its recognized trust responsibility;
and
(C) has delegated broad authority to administer a
portion of the Federal trust responsibility to the
State of Hawaii;
(21) 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 in 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 authority to
enforce the trust, including the exclusive right of the
United States to consent to any actions affecting the
lands that comprise the corpus of 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 that Act;
(22) the United States continually has recognized and
reaffirmed that--
(A) Native Hawaiians have a cultural, historic, and
land-based link to the aboriginal, native people who
exercised 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
aboriginal, native people of a once sovereign nation
with whom the United States has a political and legal
relationship; and
(D) the special trust 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
(23) the State of Hawaii supports the recognition of the
Native Hawaiian governing entity by 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.
SEC. 3. DEFINITIONS.
In this Act:
(1) Aboriginal, indigenous, native people.--The term
``aboriginal, indigenous, native people'' means people whom
Congress has recognized as the original inhabitants of the
lands and who exercised sovereignty prior to Western contact in
the areas that later became part of the United States.
(2) Adult member.--The term ``adult member'' means a Native
Hawaiian who has attained the age of 18 at the time the
preparation of the roll authorized under section 7(b)(1)(A) is
initiated.
(3) 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.
(4) Council.--The term ``council'' means the Native
Hawaiian Interim Governing Council established under section
7(b)(2).
(5) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the aboriginal,
indigenous, native people of the United States.
(6) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(7) Native hawaiian.--For the purpose of establishing the
roll authorized under section 7(b)(1) and before the
recognition by the United States of the Native Hawaiian
governing entity, the term ``Native Hawaiian'' means--
(A) an individual who is a member of the
indigenous, native people of Hawaii who are the direct
lineal descendants of the aboriginal, indigenous,
native people who--
(i) resided on or before January 1, 1893,
in the islands that now comprise the State of
Hawaii; and
(ii) occupied and exercised sovereignty in
the Hawaiian archipelago, including the area
that now constitutes the State of Hawaii; and
(B) an individual who was a Native Hawaiian
eligible during 1921 for the programs authorized by the
Hawaiian Homes Commission Act (42 Stat. 108, chapter
42) (including lineal descendants of that individual).
(8) Native hawaiian governing entity.--The term ``Native
Hawaiian governing entity'' means the governing entity
organized by the Native Hawaiian people.
(9) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established under section
5(a).
(10) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
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
responsibility to promote the welfare of Native Hawaiians;
(3) Congress possesses the authority under the Constitution
to enact legislation to address the conditions of Native
Hawaiians and has exercised this authority through the
enactment of--
(A) the Hawaiian Homes Commission Act, 1920 (42
Stat. 108, chapter 42);
(B) 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
(C) more than 150 other Federal laws addressing the
conditions of 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 recognition by the United States of the 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) effectuate and coordinate the special political and
legal responsibility between the Native Hawaiian people and the
United States, and on the recognition of the Native Hawaiian
governing entity by the United States, between the Native
Hawaiian governing entity and the United States through the
Secretary, and with all other Federal agencies;
(2) continue the process of reconciliation with the Native
Hawaiian people, and on the recognition of the Native Hawaiian
governing entity by the United States, continue the process of
reconciliation with the Native Hawaiian governing entity;
(3) fully integrate the principle and practice of
meaningful, regular, and appropriate consultation with the
Native Hawaiian governing entity by providing timely notice to,
and consulting with, the Native Hawaiian people and the Native
Hawaiian governing entity before taking any actions that may
have the potential to significantly affect Native Hawaiian
resources, rights, or lands;
(4) consult with the Interagency Coordinating Group, other
Federal agencies, and with relevant agencies of 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 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
providing recommendations for any necessary changes to Federal
law or regulations promulgated under the authority of Federal
law.
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 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
(2) the Office.
(c) Lead Agency.--
(1) In general.--The Department of the Interior shall serve
as the lead agency 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 impact on
Native Hawaiian resources, rights, or lands;
(2) ensure that each Federal agency develops a policy on
consultation with the Native Hawaiian people, and on
recognition of the Native Hawaiian governing entity by the
United States, consultation with the Native Hawaiian governing
entity; and
(3) ensure the participation of each Federal agency in the
development of the report to Congress authorized in section
5(b)(5).
SEC. 7. PROCESS FOR THE RECOGNITION OF THE NATIVE HAWAIIAN GOVERNING
ENTITY.
(a) Recognition of the Native Hawaiian Governing Entity.--The right
of the Native Hawaiian people to organize for their common welfare and
to adopt appropriate organic governing documents is recognized by the
United States.
(b) Process for Recognition.--
(1) Roll.--
(A) Preparation of roll.--
(i) In general.--The Office, in
consultation with the adult members of the
Native Hawaiian community who elect to
participate in the reorganization of the Native
Hawaiian governing entity, shall prepare and
maintain a roll for the purpose of the
reorganization of the Native Hawaiian governing
entity.
(ii) Contents.--The roll shall include the
names of the adult members of the Native
Hawaiian community who elect to participate in
the reorganization of the Native Hawaiian
governing entity.
(B) Certification of roll.--
(i) In general.--The adult members of the
Native Hawaiian community, in consultation with
the Office, shall certify to the Secretary that
the individuals listed on the roll meet the
definition of section 3(7).
(ii) Publication.--On certification of the
roll, the Secretary shall publish the roll.
(C) Appeal.--The Secretary may establish a
mechanism for an appeal for any person whose name is
excluded from the roll who meets the definition under
section 3(7).
(D) Publication; update.--The Secretary shall--
(i) publish the roll regardless of whether
appeals are pending; and
(ii) update the roll and the publication of
the roll on the final disposition of any
appeal.
(E) Failure to act.--If the Secretary fails to
publish the roll, not later than 90 days after the date
on which the roll is submitted to the Secretary, the
Office shall publish the roll notwithstanding any order
or directive issued by the Secretary or any other
official of the Department of the Interior to the
contrary.
(F) Effect of publication.--The publication of the
roll shall serve as the basis for the eligibility of
adult members of the Native Hawaiian community whose
names are listed on the roll to participate in all
referenda and elections associated with the
reorganization of the Native Hawaiian governing entity.
(2) Organization of the native hawaiian interim governing
council.--
(A) Organization.--The adult members of the Native
Hawaiian community listed on the roll published under
this subsection may--
(i) develop criteria for candidates to be
elected to serve on the Native Hawaiian Interim
Governing Council;
(ii) determine the structure of the
Council; and
(iii) elect members from individuals listed
on the roll published under this subsection to
the Council.
(B) Election.--On the request of the adult members
of the Native Hawaiian community listed on the roll
published under this subsection, the Office may assist
individuals listed on the roll in holding an election
by secret ballot (including, at the option of the
Office, absentee and mail balloting) to elect the
membership of the Council.
(C) Powers.--
(i) In general.--The Council may--
(I) represent individuals on the
roll published under this subsection 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 may
conduct a referendum among the adult
members of the Native Hawaiian
community listed on the roll published
under this subsection for the purpose
of determining--
(aa) the proposed elements
of the organic governing
documents of the Native
Hawaiian governing entity;
(bb) the proposed criteria
for citizenship of the Native
Hawaiian governing entity;
(cc) 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;
(dd) the proposed civil
rights and protection of the
rights of the citizens of the
Native Hawaiian governing
entity and all persons subject
to the authority of the Native
Hawaiian governing entity; and
(ee) other issues
determined appropriate by the
Council.
(II) Development of organic
governing documents.--Based on the
referendum, the Council may develop
proposed organic governing documents
for the Native Hawaiian governing
entity.
(III) Distribution.--The Council
may distribute to all adult members of
the Native Hawaiian community listed on
the roll published under this
subsection--
(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.--The
Council may hold elections for
the purpose of ratifying the
proposed organic governing
documents and, on certification of the organic governing documents by
the Secretary in accordance with paragraph (4), hold elections of the
officers of the Native Hawaiian governing entity.
(bb) Assistance.--On the
request of the Council, the
Office may assist the Council
in conducting the elections.
(D) Termination.--The Council shall cease to exist,
and shall have no power or authority under this Act,
after the duly elected officers of the Native Hawaiian
governing entity take office.
(3) Submittal of organic governing documents.--Following
the organization 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.--Not later than 90 days after the
date on which the Council submits the organic governing
documents to the Secretary, the Secretary shall certify
that the organic governing documents--
(i) establish the criteria for citizenship
in the Native Hawaiian governing entity;
(ii) were adopted by a majority vote of
adult members of the Native Hawaiian community
whose names are listed on the roll published by
the Secretary;
(iii) provide for the exercise of
governmental authorities by the Native Hawaiian
governing entity;
(iv) provide authority for the Native
Hawaiian governing entity to negotiate with
Federal, State, and local governments, and
other entities;
(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
subject to the authority of the Native Hawaiian
governing entity, and ensure that the Native
Hawaiian governing entity exercises its
authority in a manner consistent with section
202 of the Act of April 11, 1968 (25 U.S.C.
1302); and
(vii) are consistent with applicable
Federal law and the special political and legal
relationship between the United States and the
indigenous native people of the United States.
(B) Resubmission in case of noncompliance with
federal law.--
(i) Resubmission by the secretary.--If the
Secretary determines that the organic governing
documents, or any part of the documents, are
not consistent with applicable Federal law, 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
consistent with the law.
(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
comply with applicable Federal law; 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 subparagraph (B) shall be deemed to have been
made if the Secretary has not acted within 90 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 may hold elections
of the officers of the Native Hawaiian governing entity.
(6) Federal recognition.--Notwithstanding any other
provision of law, upon the election of the officers of the
Native Hawaiian governing entity and the certifications by the
Secretary required under paragraph (4), the United States
extends Federal recognition to the Native Hawaiian governing
entity as the representative governing body of the Native
Hawaiian people.
SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS.
(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. 5) is
reaffirmed.
(b) Negotiations.--
(1) In general.--Upon the Federal recognition of the Native
Hawaiian governing entity by the United States, the United
States and the State of Hawaii may enter into negotiations with
the Native Hawaiian governing entity designed to lead to an
agreement addressing such matters as--
(A) the transfer of lands, natural resources, and
other assets; and
(B) the exercise of governmental authority over
those lands, natural resources, and other assets.
(2) Claims.--Nothing in this Act serves as a settlement of
any claim against the United States.
SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.
(a) Indian Gaming Regulatory Act.--Nothing in this Act authorizes
the Native Hawaiian governing entity to conduct gaming activities under
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
(b) Bureau of Indian Affairs.--Nothing contained in this Act
provides an authorization for eligibility to participate in any
programs and services provided by the Bureau of Indian Affairs for any
persons not otherwise eligible for the programs or services.
SEC. 10. ETHICS.
The provisions of section 208(a) of title 18, United States Code,
prohibiting involvement by a Federal government officer or employee in
particular matters if the officer or employee, or spouse or minor child
of the officer or employee, has a financial interest shall not apply to
Native Hawaiians employed by the Office if the financial interest that
would be affected by the particular matter involved results solely from
the status as a Native Hawaiian of the officer or employee, or of the
spouse or minor child.
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.
Calendar No. 185
108th CONGRESS
1st Session
S. 344
[Report No. 108-85]
_______________________________________________________________________
A BILL
Expressing 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, and for other purposes.
_______________________________________________________________________
June 27, 2003
Reported with an amendment