[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 147 Reported in Senate (RS)]
Calendar No. 101
109th CONGRESS
1st Session
S. 147
[Report No. 109-68]
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
January 25, 2005
Mr. Akaka (for himself, Mr. Inouye, Mr. Smith, Ms. Cantwell, Ms.
Murkowski, Mr. Coleman, Mr. Dorgan, Mr. Stevens, and Mr. Graham)
introduced the following bill; which was read twice and referred to the
Committee on Indian Affairs
May 16, 2005
Reported by Mr. McCain, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Native Hawaiian Government
Reorganization Act of 2005''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds that--</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 that is now part of the United States, are
indigenous, native people of the United States;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) recognized the sovereignty of the
Kingdom of Hawaii;</DELETED>
<DELETED> (B) accorded full diplomatic recognition
to the Kingdom of Hawaii; and</DELETED>
<DELETED> (C) entered into treaties and conventions
with the Kingdom of Hawaii to govern commerce and
navigation in 1826, 1842, 1849, 1875, and
1887;</DELETED>
<DELETED> (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 to address the conditions
of Native Hawaiians in the Federal territory that later became
the State of Hawaii;</DELETED>
<DELETED> (6) by setting aside 203,500 acres of land for
Native Hawaiian homesteads and farms, the Hawaiian Homes
Commission Act assists the members of the Native Hawaiian
community in maintaining distinct native settlements throughout
the State of Hawaii;</DELETED>
<DELETED> (7) approximately 6,800 Native Hawaiian families
reside on the Hawaiian Home Lands and approximately 18,000
Native Hawaiians who are eligible to reside on the Hawaiian
Home Lands are on a waiting list to receive assignments of
Hawaiian Home Lands;</DELETED>
<DELETED> (8)(A) in 1959, as part of the compact with the
United States 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;</DELETED>
<DELETED> (B) the public trust consists of lands, including
submerged lands, natural resources, and the revenues derived
from the lands; and</DELETED>
<DELETED> (C) the assets of this public trust have never
been completely inventoried or segregated;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (11) Native Hawaiians continue to maintain 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 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;</DELETED>
<DELETED> (14) the Apology Resolution expresses the
commitment of Congress and the President--</DELETED>
<DELETED> (A) to acknowledge the ramifications of
the overthrow of the Kingdom of Hawaii;</DELETED>
<DELETED> (B) to support reconciliation efforts
between the United States and Native Hawaiians;
and</DELETED>
<DELETED> (C) to consult with Native Hawaiians on
the reconciliation process as called for in the Apology
Resolution;</DELETED>
<DELETED> (15) despite the overthrow of the government of
the Kingdom of Hawaii, Native Hawaiians have continued to
maintain their separate identity as a distinct native 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;</DELETED>
<DELETED> (16) Native Hawaiians have also given expression
to their rights as native people to self-determination, self-
governance, and economic self-sufficiency--</DELETED>
<DELETED> (A) through the provision of governmental
services to Native Hawaiians, including the provision
of--</DELETED>
<DELETED> (i) health care
services;</DELETED>
<DELETED> (ii) educational
programs;</DELETED>
<DELETED> (iii) employment and training
programs;</DELETED>
<DELETED> (iv) economic development
assistance programs;</DELETED>
<DELETED> (v) children's services;</DELETED>
<DELETED> (vi) conservation
programs;</DELETED>
<DELETED> (vii) fish and wildlife
protection;</DELETED>
<DELETED> (viii) agricultural
programs;</DELETED>
<DELETED> (ix) native language immersion
programs;</DELETED>
<DELETED> (x) native language immersion
schools from kindergarten through high
school;</DELETED>
<DELETED> (xi) college and master's degree
programs in native language immersion
instruction; and</DELETED>
<DELETED> (xii) traditional justice
programs, and</DELETED>
<DELETED> (B) 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 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;</DELETED>
<DELETED> (19) 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 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) Congress--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (B) has identified Native Hawaiians as a
distinct group of indigenous, 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</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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--</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 as a public
trust for 5 purposes, 1 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 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 the Act;</DELETED>
<DELETED> (22) the United States has continually recognized
and reaffirmed that--</DELETED>
<DELETED> (A) Native Hawaiians have a cultural,
historic, and land-based link to the aboriginal,
indigenous, 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
indigenous, 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; and</DELETED>
<DELETED> (23) the State of Hawaii supports the
reaffirmation of the 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.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Aboriginal, indigenous, native people.--The
term ``aboriginal, indigenous, native people'' means 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.</DELETED>
<DELETED> (2) Adult member.--The term ``adult member'' means
a Native Hawaiian who has attained the age of 18 and who elects
to participate in the reorganization of the Native Hawaiian
governing entity.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (4) Commission.--The term ``commission'' means the
Commission established under section 7(b) to provide for the
certification that those adult members of the Native Hawaiian
community listed on the roll meet the definition of Native
Hawaiian set forth in paragraph (8).</DELETED>
<DELETED> (5) Council.--The term ``council'' means the
Native Hawaiian Interim Governing Council established under
section 7(c)(2).</DELETED>
<DELETED> (6) Indigenous, native people.--The term
``indigenous, native people'' means the lineal descendants of
the aboriginal, indigenous, native people of the United
States.</DELETED>
<DELETED> (7) Interagency coordinating group.--The term
``Interagency Coordinating Group'' means the Native Hawaiian
Interagency Coordinating Group established under section
6.</DELETED>
<DELETED> (8) Native hawaiian.--For the purpose of
establishing the roll authorized under section 7(c)(1) and
before the reaffirmation of the political and legal
relationship between the United States and the Native Hawaiian
governing entity, the term ``Native Hawaiian'' means--
</DELETED>
<DELETED> (A) an individual who is one of the
indigenous, native people of Hawaii and who is a direct
lineal descendant of the aboriginal, indigenous, native
people who--</DELETED>
<DELETED> (i) resided in the islands that
now comprise the State of Hawaii on or before
January 1, 1893; and</DELETED>
<DELETED> (ii) occupied and exercised
sovereignty in the Hawaiian archipelago,
including the area that now constitutes the
State of Hawaii; or</DELETED>
<DELETED> (B) an individual who is one of the
indigenous, native people of Hawaii and who was
eligible in 1921 for the programs authorized by the
Hawaiian Homes Commission Act (42 Stat. 108, chapter
42) or a direct lineal descendant of that
individual.</DELETED>
<DELETED> (9) Native hawaiian governing entity.--The term
``Native Hawaiian Governing Entity'' means the governing entity
organized by the Native Hawaiian people pursuant to this
Act.</DELETED>
<DELETED> (10) Office.--The term ``Office'' means the United
States Office for Native Hawaiian Relations established by
section 5(a).</DELETED>
<DELETED> (11) Secretary.--The term ``Secretary'' means the
Secretary of the Interior.</DELETED>
<DELETED>SEC. 4. 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
special political and legal relationship;</DELETED>
<DELETED> (2) the United States has a special political and
legal relationship with the Native Hawaiian people which
includes promoting the welfare of Native Hawaiians;</DELETED>
<DELETED> (3) Congress possesses the authority under the
Constitution, including but not limited to Article I, section
8, clause 3, to enact legislation to address the conditions of
Native Hawaiians 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;</DELETED>
<DELETED> (C) the right to reorganize a Native
Hawaiian governing entity; and</DELETED>
<DELETED> (D) the right to become economically self-
sufficient; 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.--The purpose of this Act is to provide a
process for the reorganization of the Native Hawaiian governing entity
and the reaffirmation of the political and legal relationship between
the United States and the Native Hawaiian governing entity for purposes
of continuing a government-to-government relationship.</DELETED>
<DELETED>SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN
RELATIONS.</DELETED>
<DELETED> (a) Establishment.--There is established within the Office
of the Secretary, the United States Office for Native Hawaiian
Relations.</DELETED>
<DELETED> (b) Duties.--The Office shall--</DELETED>
<DELETED> (1) continue the process of reconciliation with
the Native Hawaiian people in furtherance of the Apology
Resolution;</DELETED>
<DELETED> (2) upon the reaffirmation of the political and
legal relationship between the 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;</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 before 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, the Governor of the State of
Hawaii and 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 Federal law or regulations promulgated
under the authority of Federal law.</DELETED>
<DELETED>SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING
GROUP.</DELETED>
<DELETED> (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''.</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 Native Hawaiian resources, rights, or lands;
and</DELETED>
<DELETED> (2) the Office.</DELETED>
<DELETED> (c) Lead Agency.--</DELETED>
<DELETED> (1) In general.--The Department of the Interior
shall serve as the lead agency of the Interagency Coordinating
Group.</DELETED>
<DELETED> (2) Meetings.--The Secretary shall convene
meetings of the Interagency Coordinating Group.</DELETED>
<DELETED> (d) Duties.--The Interagency Coordinating Group shall--
</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (2) ensure that each Federal agency develops a
policy on consultation with the Native Hawaiian people, and
upon the reaffirmation of the political and legal relationship
between the Native Hawaiian governing entity and the United
States, consultation with the Native Hawaiian governing entity;
and</DELETED>
<DELETED> (3) ensure the participation of each Federal
agency in the development of the report to Congress authorized
in section 5(b)(5).</DELETED>
<DELETED>SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NATIVE HAWAIIAN
GOVERNING ENTITY AND THE REAFFIRMATION OF THE POLITICAL
AND LEGAL RELATIONSHIP BETWEEN THE UNITED STATES AND THE
NATIVE HAWAIIAN GOVERNING ENTITY.</DELETED>
<DELETED> (a) Recognition of the Native Hawaiian Governing Entity.--
The right of the Native Hawaiian people to reorganize the Native
Hawaiian governing entity to provide for their common welfare and to
adopt appropriate organic governing documents is recognized by the
United States.</DELETED>
<DELETED> (b) Commission.--</DELETED>
<DELETED> (1) In general.--There is authorized to be
established a Commission to be composed of nine members for the
purposes of--</DELETED>
<DELETED> (A) preparing and maintaining a roll of
the adult members of the Native Hawaiian community who
elect to participate in the reorganization of the
Native Hawaiian governing entity; and</DELETED>
<DELETED> (B) certifying that the adult members of
the Native Hawaiian community proposed for inclusion on
the roll meet the definition of Native Hawaiian in
paragraph (8) of section 3.</DELETED>
<DELETED> (2) Membership.--</DELETED>
<DELETED> (A) Appointment.--Within 180 days of the
date of enactment of this Act, the Secretary shall
appoint the members of the Commission in accordance
with subclause (B). Any vacancy on the Commission shall
not affect its powers and shall be filled in the same
manner as the original appointment.</DELETED>
<DELETED> (B) Requirements.--The members of the
Commission shall be Native Hawaiian, as defined in
section 3(8), and shall have expertise in the
determination of Native Hawaiian ancestry and lineal
descendancy.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (4) Duties.--The Commission shall--</DELETED>
<DELETED> (A) prepare and maintain a roll of the
adult members of the Native Hawaiian community who
elect to participate in the reorganization of the
Native Hawaiian governing entity; and</DELETED>
<DELETED> (B) certify that each of the adult members
of the Native Hawaiian community proposed for inclusion
on the roll meets the definition of Native Hawaiian in
section 3(8).</DELETED>
<DELETED> (5) Staff.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (B) Compensation.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (6) Detail of federal government employees.--
</DELETED>
<DELETED> (A) In general.--An employee of the
Federal Government may be detailed to the Commission
without reimbursement.</DELETED>
<DELETED> (B) Civil service status.--The detail of
the employee shall be without interruption or loss of
civil service status or privilege.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (8) Expiration.--The Secretary shall dissolve the
Commission upon the reaffirmation of the political and legal
relationship between the Native Hawaiian governing entity and
the United States.</DELETED>
<DELETED> (c) Process for the Reorganization of the Native Hawaiian
Governing Entity.--</DELETED>
<DELETED> (1) Roll.--</DELETED>
<DELETED> (A) 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
and are certified to be Native Hawaiian as defined in
section 3(8) by the Commission.</DELETED>
<DELETED> (B) Formation of roll.--Each adult member
of the Native Hawaiian community who elects to
participate in the reorganization of the Native
Hawaiian governing entity 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 of Native Hawaiian in section
3(8).</DELETED>
<DELETED> (C) Documentation.--The Commission shall--
</DELETED>
<DELETED> (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 Native Hawaiian in section
3(8);</DELETED>
<DELETED> (ii) establish a standard format
for the submission of documentation;
and</DELETED>
<DELETED> (iii) publish information related
to clauses (i) and (ii) in the Federal
Register.</DELETED>
<DELETED> (D) Consultation.--In making
determinations that each of the adult members of the
Native Hawaiian community proposed for inclusion on the
roll meets the definition of Native Hawaiian in section
3(8), the Commission may consult with Native Hawaiian
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.</DELETED>
<DELETED> (E) Certification and submittal of roll to
secretary.--The Commission shall--</DELETED>
<DELETED> (i) submit the roll containing the
names of the adult members of the Native
Hawaiian community who meet the definition of
Native Hawaiian in section 3(8) to the
Secretary within two years from the date on
which the Commission is fully composed;
and</DELETED>
<DELETED> (ii) certify to the Secretary that
each of the adult members of the Native
Hawaiian community proposed for inclusion on
the roll meets the definition of Native
Hawaiian in section 3(8).</DELETED>
<DELETED> (F) Publication.--Upon certification by
the Commission to the Secretary that those listed on
the roll meet the definition of Native Hawaiian in
section 3(8), the Secretary shall publish the roll in
the Federal Register.</DELETED>
<DELETED> (G) Appeal.--The Secretary may establish a
mechanism for an appeal for any person whose name is
excluded from the roll who claims to meet the
definition of Native Hawaiian in section 3(8) and to be
18 years of age or older.</DELETED>
<DELETED> (H) Publication; update.--The Secretary
shall--</DELETED>
<DELETED> (i) publish the roll regardless of
whether appeals are pending;</DELETED>
<DELETED> (ii) update the roll and the
publication of the roll on the final
disposition of any appeal; and</DELETED>
<DELETED> (iii) update the roll to include
any Native Hawaiian who has attained the age of
18 and who has been certified by the Commission
as meeting the definition of Native Hawaiian in
section 3(8) after the initial publication of
the roll or after any subsequent publications
of the roll.</DELETED>
<DELETED> (I) 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 Commission 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.</DELETED>
<DELETED> (J) Effect of publication.--The
publication of the initial and updated roll shall serve
as the basis for the eligibility of adult members of
the Native Hawaiian community whose names are listed on
those rolls to participate in the reorganization of the
Native Hawaiian governing entity.</DELETED>
<DELETED> (2) Organization of the native hawaiian interim
governing council.--</DELETED>
<DELETED> (A) Organization.--The adult members of
the Native Hawaiian community listed on the roll
published under this section may--</DELETED>
<DELETED> (i) develop criteria for
candidates to be elected to serve on the Native
Hawaiian Interim Governing Council;</DELETED>
<DELETED> (ii) determine the structure of
the Council; and</DELETED>
<DELETED> (iii) elect members from
individuals listed on the roll published under
this subsection to the Council.</DELETED>
<DELETED> (B) Powers.--</DELETED>
<DELETED> (i) In general.--The Council--
</DELETED>
<DELETED> (I) may represent those
listed on the roll published under this
section in the implementation of this
Act; and</DELETED>
<DELETED> (II) shall have no powers
other than powers given to the Council
under this Act.</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (iii) Activities.--</DELETED>
<DELETED> (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 the proposed
elements of the organic governing
documents of the Native Hawaiian
governing entity, including but not
limited to--</DELETED>
<DELETED> (aa) the proposed
criteria for citizenship of the
Native Hawaiian governing
entity;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (dd) other issues
determined appropriate by the
Council.</DELETED>
<DELETED> (II) Development of
organic governing documents.--Based on
the referendum, the Council may develop
proposed organic governing documents
for the Native Hawaiian governing
entity.</DELETED>
<DELETED> (III) Distribution.--The
Council may distribute to all adult
members of the Native Hawaiian
community listed on the roll published
under this subsection--</DELETED>
<DELETED> (aa) a copy of the
proposed organic governing
documents, as drafted by the
Council; and</DELETED>
<DELETED> (bb) a brief
impartial description of the
proposed organic governing
documents;</DELETED>
<DELETED> (IV) Elections.--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 pursuant to
paragraph (5).</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (4) Certifications.--</DELETED>
<DELETED> (A) In general.--Within the context of the
future negotiations to be conducted under the authority
of section 8(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 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--</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 adult members of the Native
Hawaiian community whose names are listed on
the roll published by the Secretary;</DELETED>
<DELETED> (iii) provide authority for the
Native Hawaiian governing entity to negotiate
with Federal, State, and local governments, and
other entities;</DELETED>
<DELETED> (iv) provide for the exercise of
governmental authorities by the Native Hawaiian
governing entity, including any authorities
that may be delegated to the Native Hawaiian
governing entity by the United States and the
State of Hawaii following negotiations
authorized in section 8(b)(1) and the enactment
of legislation to implement the agreements of
the 3 governments;</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
affected by the exercise of governmental powers
and authorities by the Native Hawaiian
governing entity; and</DELETED>
<DELETED> (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; provided that the
provisions of Public Law 103-454, 25 U.S.C.
479a, shall not apply.</DELETED>
<DELETED> (B) Resubmission in case of noncompliance
with the requirements of subparagraph (a).--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (I) amend the organic
governing documents to ensure that the
documents meet all the requirements set
forth in subparagraph (A);
and</DELETED>
<DELETED> (II) resubmit the amended
organic governing documents to the
Secretary for certification in
accordance with this
paragraph.</DELETED>
<DELETED> (C) Certifications deemed made.--The
certifications under paragraph (4) 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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (6) Reaffirmation.--Notwithstanding any other
provision of law, upon the certifications required under
paragraph (4) and the election of the officers of the Native
Hawaiian governing entity, the political and legal relationship
between the United States and the Native Hawaiian governing
entity is hereby reaffirmed and the United States extends
Federal recognition to the Native Hawaiian governing entity as
the representative governing body of the Native Hawaiian
people.</DELETED>
<DELETED>SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY;
NEGOTIATIONS; CLAIMS.</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. 4), is
reaffirmed.</DELETED>
<DELETED> (b) Negotiations.--</DELETED>
<DELETED> (1) In general.--Upon the reaffirmation of the
political and legal relationship between the United States and
the Native Hawaiian governing entity, the United States and the
State of Hawaii may enter into negotiations with the Native
Hawaiian governing entity designed to lead to an agreement
addressing such matters as--</DELETED>
<DELETED> (A) the transfer of lands, natural
resources, and other assets, and the protection of
existing rights related to such lands or
resources;</DELETED>
<DELETED> (B) the exercise of governmental authority
over any transferred lands, natural resources, and
other assets, including land use;</DELETED>
<DELETED> (C) the exercise of civil and criminal
jurisdiction;</DELETED>
<DELETED> (D) the delegation of governmental powers
and authorities to the Native Hawaiian governing entity
by the United States and the State of Hawaii;
and</DELETED>
<DELETED> (E) any residual responsibilities of the
United States and the State of Hawaii.</DELETED>
<DELETED> (2) Amendments to existing laws.--Upon agreement
on any matter or matters negotiated with the United States, the
State of Hawaii, and the Native Hawaiian governing entity, the
parties are authorized to submit--</DELETED>
<DELETED> (A) to the Committee on Indian Affairs of
the Senate, the Committee on Energy and Natural
Resources of the Senate, and the Committee on Resources
of the House of Representatives, recommendations for
proposed amendments to Federal law that will enable the
implementation of agreements reached between the 3
governments; and</DELETED>
<DELETED> (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 3
governments.</DELETED>
<DELETED> (c) Claims.--</DELETED>
<DELETED> (1) In general.--Nothing in this Act serves as a
settlement of any claim against the United States.</DELETED>
<DELETED> (2) Statute of limitations.--Any claim against the
United States arising under Federal law that--</DELETED>
<DELETED> (A) is in existence on the date of
enactment of this Act;</DELETED>
<DELETED> (B) is asserted by the Native Hawaiian
governing entity on behalf of the Native Hawaiian
people; and</DELETED>
<DELETED> (C) relates to the legal and political
relationship between the United States and the Native
Hawaiian people;</DELETED>
<DELETED>shall be brought in the court of jurisdiction over
such claims not later than 20 years after the date on which
Federal recognition is extended to the Native Hawaiian
governing entity under section 7(c)(6).</DELETED>
<DELETED>SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.</DELETED>
<DELETED> (a) Indian Gaming Regulatory Act.--Nothing in this Act
shall be construed to authorize 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 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.</DELETED>
<DELETED>SEC. 10. SEVERABILITY.</DELETED>
<DELETED> 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.</DELETED>
<DELETED>SEC. 11. AUTHORIZATION OF APPROPRIATIONS.</DELETED>
<DELETED> There are authorized to be appropriated such sums as are
necessary to carry out this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native Hawaiian Government
Reorganization Act of 2005''.
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 sovereignty of the Kingdom of
Hawaii;
(B) accorded full diplomatic recognition to the
Kingdom of Hawaii; and
(C) entered into treaties and conventions with the
Kingdom of Hawaii 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
approximately 203,500 acres of land to address the conditions
of Native Hawaiians in the Federal territory that later became
the State of Hawaii;
(6) by setting aside 203,500 acres of land for Native
Hawaiian homesteads and farms, the Hawaiian Homes Commission
Act assists the members of the Native Hawaiian community in
maintaining distinct native settlements throughout the State of
Hawaii;
(7) approximately 6,800 Native Hawaiian families reside on
the Hawaiian Home Lands and approximately 18,000 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 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 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
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 continue to maintain 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 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;
(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 consult with Native Hawaiians on the
reconciliation process as called for in the Apology
Resolution;
(15) despite the overthrow of the government of the Kingdom
of Hawaii, Native Hawaiians have continued to maintain their
separate identity as a distinct native 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;
(16) 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;
(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 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;
(19) 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 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
group of indigenous, 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;
(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 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 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 the Act;
(22) the United States has continually recognized and
reaffirmed that--
(A) Native Hawaiians have a cultural, historic, and
land-based link to the aboriginal, indigenous, 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
indigenous, 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 reaffirmation of the
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 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) Adult member.--The term ``adult member'' means a Native
Hawaiian who has attained the age of 18 and who elects to
participate in the reorganization of the Native Hawaiian
governing entity.
(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) Commission.--The term ``commission'' means the
Commission established under section 7(b) to provide for the
certification that those adult members of the Native Hawaiian
community listed on the roll meet the definition of Native
Hawaiian set forth in paragraph (10).
(5) Council.--The term ``council'' means the Native
Hawaiian Interim Governing Council established under section
7(c)(2).
(6) 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.
(7) 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).
(8) Indigenous, native people.--The term ``indigenous,
native people'' means the lineal descendants of the aboriginal,
indigenous, native people of the United States.
(9) Interagency coordinating group.--The term ``Interagency
Coordinating Group'' means the Native Hawaiian Interagency
Coordinating Group established under section 6.
(10) Native hawaiian.--
(A) In general.--Subject to subparagraph (B), for
the purpose of establishing the roll authorized under
section 7(c)(1) and before the reaffirmation of the
political and legal relationship between the United
States and the Native Hawaiian governing entity, the
term ``Native Hawaiian'' means--
(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 (42 Stat.
108, chapter 42) or a direct lineal descendant
of that individual.
(B) No effect on other definitions.--Nothing in
this paragraph affects the definition of the term
``Native Hawaiian'' under any other Federal or State
law (including a regulation).
(11) Native hawaiian governing entity.--The term ``Native
Hawaiian Governing Entity'' means the governing entity
organized by the Native Hawaiian people pursuant to this Act.
(12) Native hawaiian program or service.--The term ``Native
Hawaiian program or service'' means any program or service
provided to Native Hawaiians because of their status as Native
Hawaiians.
(13) Office.--The term ``Office'' means the United States
Office for Native Hawaiian Relations established by section
5(a).
(14) 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
relationship with the Native Hawaiian people which includes
promoting the welfare of Native Hawaiians;
(3) Congress possesses the authority under the
Constitution, including but not limited to Article I, section
8, clause 3, to enact legislation to address the conditions of
Native Hawaiians 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 reorganization of the Native Hawaiian governing entity and the
reaffirmation of the political and legal relationship between the
United States and 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) continue the process of reconciliation with the Native
Hawaiian people in furtherance of the Apology Resolution;
(2) upon the reaffirmation of the political and legal
relationship between the 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) 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, the Governor of the State of Hawaii and
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 affect
Native Hawaiian resources, rights, or lands;
(2) ensure that each Federal agency develops a policy on
consultation with the Native Hawaiian people, and upon the
reaffirmation of the political and legal relationship between
the Native Hawaiian governing entity and 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 REORGANIZATION OF THE NATIVE HAWAIIAN GOVERNING
ENTITY AND THE REAFFIRMATION OF THE POLITICAL AND LEGAL
RELATIONSHIP BETWEEN THE UNITED STATES AND THE NATIVE
HAWAIIAN GOVERNING ENTITY.
(a) Recognition of the Native Hawaiian Governing Entity.--The right
of the Native Hawaiian people to reorganize the 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 nine members for the purposes of--
(A) preparing and maintaining a roll of the adult
members of the Native Hawaiian community who elect to
participate in the reorganization of the Native
Hawaiian governing entity; and
(B) certifying that the adult members of the Native
Hawaiian community proposed for inclusion on the roll
meet the definition of Native Hawaiian in section
3(10).
(2) Membership.--
(A) Appointment.--Within 180 days of the date of
enactment of this Act, the Secretary shall appoint the
members of the Commission in accordance with subclause
(B). Any vacancy on the Commission shall not affect its
powers and shall be filled in the same manner as the
original appointment.
(B) Requirements.--The members of the Commission
shall be Native Hawaiian, as defined in section 3(10),
and shall have expertise in the determination of Native
Hawaiian ancestry and lineal descendancy.
(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 the adult
members of the Native Hawaiian community who elect to
participate in the reorganization of the Native
Hawaiian governing entity; and
(B) certify that each of the adult members of the
Native Hawaiian community proposed for inclusion on the
roll meets the definition of Native Hawaiian in section
3(10).
(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 political and legal
relationship between the Native Hawaiian governing entity and
the United States.
(c) Process for the Reorganization of the Native Hawaiian Governing
Entity.--
(1) Roll.--
(A) 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 and are certified to
be Native Hawaiian as defined in section 3(10) by the
Commission.
(B) Formation of roll.--Each adult member of the
Native Hawaiian community who elects to participate in
the reorganization of the Native Hawaiian governing
entity 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 of Native
Hawaiian in section 3(10).
(C) Documentation.--The Commission shall--
(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
Native Hawaiian in section 3(10);
(ii) establish a standard format for the
submission of documentation; and
(iii) publish information related to
clauses (i) and (ii) in the Federal Register.
(D) Consultation.--In making determinations that
each of the adult members of the Native Hawaiian
community proposed for inclusion on the roll meets the
definition of Native Hawaiian in section 3(10), the
Commission may consult with Native Hawaiian
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) Certification and submittal of roll to
secretary.--The Commission shall--
(i) submit the roll containing the names of
the adult members of the Native Hawaiian
community who meet the definition of Native
Hawaiian in section 3(10) to the Secretary
within two years from the date on which the
Commission is fully composed; and
(ii) certify to the Secretary that each of
the adult members of the Native Hawaiian
community proposed for inclusion on the roll
meets the definition of Native Hawaiian in
section 3(10).
(F) Publication.--Upon certification by the
Commission to the Secretary that those listed on the
roll meet the definition of Native Hawaiian in section
3(10), the Secretary shall publish the roll in the
Federal Register.
(G) Appeal.--The Secretary may establish a
mechanism for an appeal for any person whose name is
excluded from the roll who claims to meet the
definition of Native Hawaiian in section 3(10) and to
be 18 years of age or older.
(H) Publication; update.--The Secretary shall--
(i) publish the roll regardless of whether
appeals are pending;
(ii) update the roll and the publication of
the roll on the final disposition of any
appeal; and
(iii) update the roll to include any Native
Hawaiian who has attained the age of 18 and who
has been certified by the Commission as meeting
the definition of Native Hawaiian in section
3(10) after the initial publication of the roll
or after any subsequent publications of the
roll.
(I) 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
Commission 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.
(J) Effect of publication.--The publication of the
initial and updated roll shall serve as the basis for
the eligibility of adult members of the Native Hawaiian
community whose names are listed on those rolls to
participate in 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 section 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) Powers.--
(i) In general.--The Council--
(I) may represent those listed on
the roll published 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 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 the proposed elements of
the organic governing documents of the
Native Hawaiian governing entity,
including but not limited to--
(aa) the proposed criteria
for citizenship of 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 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.--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 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 8(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 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 the
adult members of the Native Hawaiian community
whose names are listed on the roll published by
the Secretary;
(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
governmental authorities by the Native Hawaiian
governing entity, including any authorities
that may be delegated to the Native Hawaiian
governing entity by the United States and the
State of Hawaii following negotiations
authorized in section 8(b)(1) and the enactment
of legislation to implement the agreements of
the 3 governments;
(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 and the special political and legal
relationship between the United States and the
indigenous, native people of the United States;
provided that the provisions of Public Law 103-
454, 25 U.S.C. 479a, shall not apply.
(B) Resubmission in case of noncompliance with the
requirements of subparagraph (a).--
(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 paragraph (4) 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) Reaffirmation.--Notwithstanding any other provision of
law, upon the certifications required under paragraph (4) and
the election of the officers of the Native Hawaiian governing
entity, the political and legal relationship between the United
States and the Native Hawaiian governing entity is hereby
reaffirmed and 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;
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 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 addressing
such matters as--
(A) the transfer of 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 delegation of governmental powers and
authorities to the Native Hawaiian governing entity by
the United States and the State of Hawaii; and
(E) any residual responsibilities of the United
States and the State of Hawaii.
(2) Amendments to existing laws.--Upon agreement on any
matter or matters negotiated with the United States, the State
of Hawaii, and the Native Hawaiian governing entity, the
parties are authorized to 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 Resources of the
House of Representatives, recommendations for proposed
amendments to Federal law that will enable the
implementation of agreements reached between the 3
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 3
governments.
(c) Claims.--
(1) In general.--Nothing in this Act serves as a settlement
of any claim against the United States.
(2) Statute of limitations.--Any claim against the United
States arising under Federal law that--
(A) is in existence on the date of enactment of
this Act;
(B) is asserted by the Native Hawaiian governing
entity on behalf of the Native Hawaiian people; and
(C) relates to the legal and political relationship
between the United States and the Native Hawaiian
people;
shall be brought in the court of jurisdiction over such claims
not later than 20 years after the date on which Federal
recognition is extended to the Native Hawaiian governing entity
under section 7(c)(6).
SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.
(a) Indian Gaming Regulatory Act.--Nothing in this Act shall be
construed to authorize 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.).
(b) Indian Programs and Services.--Notwithstanding section 7(c)(6),
because of the eligibility of the Native Hawaiian governing entity and
its citizens for Native Hawaiian programs and services in accordance
with subsection (c), nothing in this Act provides an authorization for
eligibility to participate in any Indian program or service to any
individual or entity not otherwise eligible for the program or service
under applicable Federal law.
(c) Native Hawaiian Programs and Services.--The Native Hawaiian
governing entity and its citizens shall be eligible for Native Hawaiian
programs and services to the extent and in the manner provided by other
applicable laws.
SEC. 10. 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. 11. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary
to carry out this Act.
Calendar No. 101
109th CONGRESS
1st Session
S. 147
[Report No. 109-68]
_______________________________________________________________________
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.
_______________________________________________________________________
May 16, 2005
Reported with an amendment