Mr. Speaker, I have an amendment in the nature of a substitute made in order under the rule. Mr. Speaker, in support of our substitute amendment, the amendment ensures that the Native Hawaiian governing entity will have the same…
Mr. Speaker, I have an amendment in the nature of a substitute made in order under the rule.
Mr. Speaker, in support of our substitute amendment, the amendment ensures that the Native Hawaiian governing entity will have the same governmental authorities and sovereign immunity of other native governments.
The Abercrombie amendment, the substitute amendment, follows centuries of well-established Federal law. The amendment is supported by the National Congress of American Indians, the Alaska Federation of Natives and other tribal organizations. President Obama supports the substitute amendment, and I quote, ``as it adds important clarifications to craft a durable pathway forward.''
Mr. Speaker, the amendment in the nature of a substitute further clarifies that pending negotiations and subsequent implementation legislation with that, the following will occur: There will be no Indian Country within Hawaii. The United States will not take land into trust nor restrict alien ability of land owned by the Native Hawaiian governing entity. The governing entity may not exercise certain powers and authorities such as jurisdiction over non-Native Hawaiian individuals without their consent. And the State of Hawaii will retain regulatory and taxation authority over Native Hawaiians and the Native Hawaiian governing entity.
Mr. Speaker, the Native Hawaiian government reorganization does as follows: Establishes a process for the recognition of a single Native Hawaiian governing entity; establishes a U.S. office for Native Hawaiian relations in the Department of the Interior to consult with other Federal agencies and the State of Hawaii; establishes a Native Hawaiian interagency coordinating group; authorizes United States-State of Hawaii Native Hawaiian governing entity negotiations based on the following: the transfer of lands, natural resources and other assets; the exercise of governmental authority over any lands or resources; the exercise of civil and criminal jurisdiction; and grievances regarding assertions of historical wrongs committed against the Native Hawaiians by the United States or the State of Hawaii. It prohibits gaming by Native Hawaiian governing entities and Native Hawaiians. It prohibits the Native Hawaiian governing entity from being eligible for any new Indian programs to which they are not already included.
Let me say then, in conclusion, what the Native Hawaiian Government Reorganization Act does not do. It does not recognize the Native Hawaiian government upon passage of this bill. It does not exempt the Native Hawaiian government from any provision of the U.S. Constitution. It does not exempt the Native Hawaiian government from any provision of Federal law. It does not exempt the Native Hawaiian governing entity from taxation. It does not authorize a Native Hawaiian government entity to secede. It does not alter the civil or criminal jurisdiction of the United States or the State of Hawaii. And finally, it does not allow for the transfer of land or any authority of land to a Native Hawaiian governing entity.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I yield 3 minutes to the gentleman from American Samoa (Mr. Faleomavaega).
That is correct.
Yes. Not everyone may have been on the floor or listening at the time that I indicated that I had a conversation with the Governor this afternoon, and I indicated to her that I would say specifically on the
floor that we have agreed to disagree, that she supports the object of the bill--as has been indicated by Representative Hastings quite accurately--but that in this disagreement over how to proceed legislatively, I commented both to her and I've commented on the floor and in conversations private and elsewhere that legislation is a process and that this is not theology. And as a result of it being a legislative process, it may not be perfect in every regard, but I am content and comfortable with the idea that whoever is Governor, including the present Governor for the remainder of her term, that she will not be disadvantaged nor will any other Governor be disadvantaged in any negotiations that take place with the native governing agency.
I yield the gentleman 30 additional seconds.
I think the answer from the most practical point of view is the passage of the Hawaiian Homes Act of 1921. The Congress obviously recognized that there was a distinctive entity in the category of Native Hawaiians as a logical extension of the previous constitutional history regarding native people.
Will the gentleman yield?
Perhaps you want to put that in as an amendment, that I should be the negotiator.
Mr. Speaker, I would like to yield 3 minutes to my colleague and good friend from Hawaii, Mazie Hirono.
Mr. Speaker, can you tell us the time remaining on both sides?
And the gentleman from Washington has the privilege of closing, does he not?
Mr. Speaker, I yield 1 minute to the Speaker of the House, the Honorable Nancy Pelosi.
No. I want to speak one more time, and I will be the final speaker.
Mr. Speaker, I would like to enter into the Record a letter favoring the legislation, the substitute, from the National Congress of American Indians; the Alaska Federation of Natives; the Council for Native Hawaiian Advancement; the Sovereign Councils of the Hawaiian Homelands Assembly; the President of the Hawaii State Senate, the Honorable Colleen Hanabusa; and the Osage Nation from the Office of the Principal Chief.
National Congress of
American Indians,
February 23, 2010.
Hon. Neil Abercrombie,
House of Representatives, Longworth House Office Building,
Washington, DC.
Hon. Senator Daniel Akaka,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Hon. Mazie Hirono,
House of Representatives, Longworth House Office Building,
Washington, DC.
Hon. Daniel Inouye,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Honorable Members: The National Congress of American
Indians fully supports the Native Hawaiian people in their
quest for self-determination and self-governance, and has for
many years. (See NCAI Resolution PHX-03-004.) This week, the
Native Hawaiian Reorganization Act of 2009 (H.R. 2314) is
expected to be amended on the floor of the House of
Representatives and subsequently passed through Congress.
NCAI supports the amendment as a way to ensure that
Congress has a strong basis for treating Native Hawaiians as
a distinct native community, and that the Act is
constitutionally sound. Through the deliberative process with
the Department of Justice, the Senate Committee on Indian
Affairs and with legal scholars with expertise in federal
Indian policy, Representative Abercrombie's amendment has
addressed these concerns.
NCAI has demonstrated repeated commitment to Native
Hawaiian self-governance and sovereignty. Over the past ten
years, we have passed resolutions and steadfastly supported
legislation encouraging the formation of a Native Hawaiian
governing entity. NCAI supports Representative Abercrombie's
proposed amendment to grant Native Hawaiians the self-
determination and self-government they justly deserve.
Sincerely,
Jacqueline Johnson Pata,
Executive Director.
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the Hawaii State Attorney General argues that granting the Native Hawaiian governing entity inherent powers could have an adverse impact on Hawaii, and I think that is the thrust, essentially, of the critique that has been made about the legislation this afternoon and this early evening.
In response, Mr. Speaker, I would like to say to the Members, and to yourself, of course, that the current bill language gives the Native Hawaiian governing entity no powers that are currently exercised by other government entities until negotiated. This would prevent the entity from providing general assistance to its members or caring for a needy child, absent the amendment as a substitute.
The substitute amendment resolves this by acknowledging certain inherent powers of the governing entity upon recognition, the same inherent powers that other native governments possess today; no more, no less. This is not, therefore, a radical notion. By definition, this is what Federal recognition does: It acknowledges that an entity is a quasi-sovereign tribal government. The acknowledged inherent powers of the entity are limited by language in the amendment, in the substitute amendment that states, and I quote:
``Nothing in this act shall preempt Federal or State authority over Native Hawaiians or their property under existing law.''
Upon recognition, the entity will have no land akin to Indian country over which it could exercise jurisdiction. Since some inherent powers are tied to having such land, like certain regulatory authorities, the entity will not be able to exercise those powers.
Finally, the negotiations process will further modify the powers and authority of the governing entity by virtue of the negotiation themselves.
Therefore, Mr. Speaker, I request that those Members who have some trepidation about voting for the amendment in the nature of a substitute reflect that we believe, those of us who support it--and it was certainly my intention in offering the amendment to address those concerns in a positive way and in a legislatively viable way.
I would ask at this time in closing, Mr. Speaker, that those Members who come to the floor to vote tonight consider voting for it, and I earnestly solicit the favorable attention of all members in voting for the amendment in the nature of a substitute.
I yield back the balance of my time.
Mr. Speaker, with all due respect to my good colleague and friend, Mr. Hastings from Washington State, I have to oppose this amendment because it has no precedent--or indeed any place I believe in Federal law that has been in place for well over 150 years as that law relates to Native governments.
Under our Constitution, the citizens of the United States are the only citizens who are authorized and recognized as having a right to have a say in the laws which govern our Nation, be they Federal statutes or amendments to our Constitution. In a similar manner, the citizens of one State in our Union do not get to weigh in on the laws of another State or any proposed amendments to another State's constitution. Put simply, they cannot vote for changes in the law of a State for which they are not citizens. It goes without saying that foreign governments have no role to play in the formulation of the laws of the United States or the U.S. Constitution.
All of these fundamental principles have in their foundation the fact that each government is a separate sovereign, and only the citizens of that sovereign government may determine what governmental powers and authorities that sovereign government may exercise. It is no different for native governments in the United States.
The largest native government in the United States is the Navajo Nation. It is situated in four States. Because they are not citizens of the Navajo Nation, the non-Navajo citizens of the States of Arizona, New Mexico, Utah and Colorado do not, under our constitutional principles, formulate, amend, or approve the governing documents either of the constitution or the laws of the Navajo Nation.
In like manner, under our Federal statuary and constitutional framework, the non-Indian citizens of Washington State do not have the right to approve the constitution or the laws of the 28 Indian tribal governments in the State of Washington, nor do the citizens of any other State have the right, under our Federal Constitution or Federal laws, to approve the governing documents, the constitutions, of the native governments in their States if they are not citizens of the native government.
I would suggest to my colleagues that they vote down the Hastings amendment on the basis that it is an inherent conflict of interest.
If the gentleman's premise is that without regard to citizenship in a sovereign government, any citizen of the United States should have a right to vote to approve the organic governing documents of another sovereign government, then every American would have a right to determine the laws of every State in the Union. The citizens of Vermont could vote to amend the constitution of the State of California. The citizens of Utah could vote to legalize gaming in another State, even though the laws of Utah criminally prohibit all forms of gaming.
This is counter to our constitutional family of governments in which each sovereign government and its citizens has the right to determine its own laws and be governed by those laws.
I would suggest to my colleagues that to even take a step in this direction would create constitutional chaos in our Federal system as well as in the laws which govern each State and each Native government. This is not one of the fundamental principles on which this country was founded, nor does it have a place in our constitutional system of governments.
I will take the first few seconds of it, Mr. Speaker, because I believe this will be the last discussion of both the amendments and of the bill prior to voting, to thank Mr. Flake for his friendship over these years and to say to him that I admire his independent spirit; I admire his devotion to this House; I admire his steadfast sense of responsibility in the various amendments that he offers. I wish I could support it on the basis of that friendship and in my admiration for him.
Yet I would like to say in that context--and I hope I am stating the purpose of the amendment correctly--that Mr. Flake wants to require any native governing entity to comply with the Equal Protection Clause of the 14th Amendment of the United States Constitution. If I had to summarize it in a sentence, that's the way I would put it.
In the course of his remarks, he asked, Why not make sure? I think that's a perfectly reasonable request, but my contention would be, in asking that the amendment not be voted favorably upon, that precisely what he seeks to succeed in with his amendment is exactly what is in the bill, itself, which is in the amendment as a substitute. Mr. Flake's amendment then is duplicative of current Federal law.
Only after a thoughtful and deliberate process did Congress impose most of the provisions on the Bill of Rights on tribes through the Indian Civil Rights Act of 1968. The Equal Protection and Due Process provisions of the Bill of Rights were included verbatim in the Indian Civil Rights Act.
The Indian Civil Rights Act specifically states, ``No Indian tribe in exercising the powers of self-government shall deny any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.''
In section 1302, Constitutional Rights, again quoting, ``No Indian tribe in exercising powers of self-government shall:
``No. 8: deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.''
The Flake amendment essentially then ignores the provision of H.R. 2314, as amended, should we pass the substitute.
The bill applies the Indian Civil Rights Act to the entity, the Native Hawaiian entity, and it requires the Secretary of the Interior to certify that the Native Hawaiian governing entity is in compliance with Federal law and that its governing documents provide for the protection of the civil rights of the citizens of the Native Hawaiian governing entity as well.
Thus, the Flake amendment, as I indicated, I believe, is a duplication, and would actually create a double standard for the Native Hawaiian governing entity, not treating them as other federally recognized tribal governments are today.
Finally, I believe the amendment could be subject to broad interpretation, the scope of which is unclear. As a result, litigation would likely flourish in the Federal courts, which might take years to resolve as the courts would have to examine the U.S. Constitution, Federal law and numerous Federal court decisions upholding the current law, which already imposes the same equal protection guarantees on tribes that Mr. Flake's amendment seeks to impose.
Therefore, I ask, in the context of my admiration and respect for Mr. Flake, that his amendment, however, be defeated.
With that, Mr. Speaker, if I have time remaining, I would like to take the occasion then to thank Mr. Hastings, Mr. Flake and all of those on the Resources Committee--Republican and Democratic alike--who have been my colleagues and friends all these years. I think the Resources Committee is one of the most unappreciated committees, unappreciated in the sense of comprehension by, perhaps, even Members of Congress and by the public at large. No committee deals with as detailed and as difficult a set of circumstances as the Resources Committee does. My respect and admiration for all its members abides with me as I take leave of the House.
Mr. Speaker, ``aloha'' to you. ``Aloha'' to the House of Representatives. ``Aloha'' to all Members here tonight.