[House Report 111-412]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-412
=====================================================================
NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2009
_______
February 22, 2010.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2314]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 2314) 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, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 2314 is 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 a Native Hawaiian governing entity.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 2314 would authorize a process leading to the
reorganization and recognition of a Native Hawaiian governing
entity. A Native Hawaiian government will not be recognized
immediately upon enactment of this measure. Instead, a process
is established that requires the Secretary of the Interior to
certify that the organic governing documents of a Native
Hawaiian government are consistent with federal law and with
the political and legal relationship between the United States
and the indigenous people of the United States. Upon such
certification, H.R. 2314 authorizes the federal recognition of
a Native Hawaiian government.
Historical background
Native Hawaiians are the indigenous, native people of
Hawaii, with whom the United States has a trust relationship.
Congress has repeatedly recognized the unique status of Native
Hawaiians since 1921. The long-standing policy of the United
States has been to protect and advance Native Hawaiian
interests.
Beginning in the 106th Congress, the House Committee on
Natural Resources and the Senate Committee on Indian Affairs
have held extensive hearings on the reorganization of a Native
Hawaiian government. Both Committees have filed reports\1\
setting forth a detailed cultural and political history of the
aboriginal people living in what is now the State of Hawaii.
Rather than repeat this detailed history, those documents are
hereby incorporated into this report. Reference should be made
to those reports, in particular S. Rept. No. 108-85, for a
detailed account of the history of the Native Hawaiian people
and the islands, including their relations with the ``outside''
world: the pre-contact period and the initial encounter with
Captain James Cook of the British Royal Navy in 1778; the
consolidation of power under King Kamehameha in the early 19th
Century, followed by several decades of increasing contact and
influence of foreigners and foreign powers; relations with the
United States, with which the Kingdom executed a series of
treaties and conventions between 1826 and 1887; the overthrow
of the Kingdom and Queen Lili`uokalani in 1893; the formation
of the Republic of Hawaii and its annexation by the United
States five years later; the establishment of the Territory of
Hawaii in 1900; and, finally, the admission of the State of
Hawaii into the Union in 1959. The following short summary of
information places the issue in context.
---------------------------------------------------------------------------
\1\See ``Legislative History'' below.
---------------------------------------------------------------------------
The Great Mahele
In the middle of the 19th century, influential non-
Hawaiians sought to limit the absolute power of the Hawaiian
king and to implement property law so that they could
accumulate and control land. As a result of foreign pressure,
in 1840, King Kamehameha III promulgated a new constitution.
Soon thereafter, the King authorized the Great Mahele
(``division''), in which the King conveyed about 1.5 million
acres to the konohiki, or main chiefs; he reserved about 1
million acres for himself and his royal successors (``Crown
Lands''), and allocated about 1.5 million acres to the
government of Hawaii (``Government Lands''). All lands remained
subject to the rights of native tenants. In 1850, after the
division was accomplished, an act was passed permitting non-
natives to purchase land in fee simple. Upon annexation in
1898, the remaining Government Lands and Crown Lands were ceded
by the Republic of Hawaii to the United States. These lands
came to be known as the ``Ceded Lands.''
Republic of Hawaii
On January 17, 1893, a group of American citizens and
others, who acted with the support of the United States
Minister John Stephens and a contingent of United States
Marines, overthrew the government of the Kingdom of Hawaii.
Supporters of this revolutionary movement organized the
Republic of Hawaii. Notwithstanding strong opposition from
within the Native Hawaiian community, officials of the Republic
of Hawaii succeeded in having the Hawaiian Islands annexed by
the United States. In 1898, Congress adopted the Joint
Resolution for Annexing the Hawaiian Islands to the United
States.\2\ Soon thereafter, Congress passed the Hawaii Organic
Act\3\ establishing a government for the newly created
Territory of Hawaii.
---------------------------------------------------------------------------
\2\30 Stat. 750 (July 7, 1898).
\3\31 Stat. 141 (April 30, 1900).
---------------------------------------------------------------------------
Hawaiian Homes Commission Act
By 1920, many were concluding that Native Hawaiians were a
``dying race'' and that if they were to be saved from
extinction, they must have the means of regaining their
connection to the land.\4\ Then Secretary of the Interior
Franklin Lane attributed the declining population to health
problems like those faced by the ``Indian in the United
States'' and concluded the Nation must provide similar
remedies.\5\ In an effort to ``rehabilitate'' Native Hawaiians
by returning them to the land, the Congress enacted the
Hawaiian Homes Commission Act.\6\ The Act sets aside
approximately 203,500 acres of the Ceded Lands for Native
Hawaiian homesteading.\7\ Congress compared the Act to
``previous enactments granting Indians . . . special privileges
in obtaining and using the public lands.''\8\
---------------------------------------------------------------------------
\4\H. Rept. 66-839 (1920).
\5\Id., at 5.
\6\42 Stat. 108 (July 9, 1921).
\7\Id., Sec. 203.
\8\H. Rept. 66-839, at 11 (1920).
---------------------------------------------------------------------------
In hearings on the matter, Secretary of the Interior
Franklin Lane explained the trust relationship on which the
statute was premised: ``One thing that impressed me . . . was
the fact that the natives of the islands who are our wards, I
should say, and for whom in a sense we are trustees, are
falling off rapidly in numbers and many of them are in
poverty.''\9\
---------------------------------------------------------------------------
\9\H. Rept. 66-839, at 4 (1920).
---------------------------------------------------------------------------
Secretary Lane explicitly analogized the relationship
between the United States and Native Hawaiians to the trust
relationship between the United States and other Native
Americans, explaining that programs for Native Hawaiians are
fully supported by history and ``an extension of the same
idea'' that supports such programs for other Indians.\10\
---------------------------------------------------------------------------
\10\Hearings before the Committee on the Territories, House of
Representatives, 66th Cong., 2d Sess., on Proposed Amendments to the
Organic Act of the Territory of Hawaii, February 3, 4, 5, 7, and 10,
1920, at 129-30 (rejecting the argument that legislation aimed at
``this distinct race'' would be unconstitutional, Secretary Lane stated
that ``[w]e have got the right to set aside these lands for this
particular body of people, because I think the history of the islands
will justify that before any tribunal in the world,'' and citing a
Solicitor's opinion that stated that the setting aside of public lands
within the Territory of Hawaii would not be unconstitutional, relying
in part on the congressionally authorized allotment to Indians as
precedent for such an action); see, also, id. at 127 (colloquy between
Secretary Lane and Representative Monahan, analogizing status of Native
Hawaiians to that of Indians) and at 167-70 (colloquy between
Representative Curry, Chair of the Committee, and Representatives
Dowell, and Humphreys, making the same analogy and rejecting the
objection that ``we have no government or tribe to deal with here'').
---------------------------------------------------------------------------
The 1921 Act authorizes a Native Hawaiian to lease Ceded
Lands for a term of ninety-nine years, provided that the lessee
occupy and use or cultivate the tract within one year after the
lease is entered into. A restriction on alienation, like those
imposed on Indian lands subject to allotment, was included in
the lease. Also like the general allotment acts affecting
Indians,\11\ the leases were intended to encourage rural
homesteading so that Native Hawaiians would return to rural
subsistence or commercial farming and ranching. In 1923, the
Congress amended the Act to permit one-half acre residence lots
and to provide for home construction loans.\12\ Thereafter, the
demand for residential lots far exceeded the demand for
agricultural or pastoral lots.\13\
---------------------------------------------------------------------------
\11\25 U.S.C. Sec. Sec. 334, 348, 349, 354, e.g.
\12\42 Stat. 1222, Sec. 3 (Feb. 3, 1923).
\13\Office of State Planning, Office of the Governor, State of
Hawaii, Pt. 1, Report on Federal Breaches of the Hawaiian Home Lands
Trust, 4-6 (1992).
---------------------------------------------------------------------------
Hawaii Admission Act
Congress again recognized the unique status of Native
Hawaiians when Hawaii gained Statehood in 1959. Upon its
admission into the Union of States, the Ceded Lands were
conveyed to the State of Hawaii.\14\ Section 5(f) of the Hawaii
Admission Act requires that the Ceded Lands and the revenues
derived therefrom be held by the State of Hawaii as a public
trust for five purposes--one of which was for the betterment of
Native Hawaiians.\15\ Moreover, as a condition of admission
into the Union, the Hawaii Admission Act\16\ also required the
new State to assume management of the homesteading program
established under the Hawaiian Homes Commission Act\17\ and to
adopt that Federal law, as amended, as a provision of its
Constitution.
---------------------------------------------------------------------------
\14\Section 5 of Public Law 86-3, (March 18, 1959) (the ``Hawaii
Admission Act'').
\15\Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
\16\Id., Sec. 4.
\17\42 Stat. 108 (July 9, 1921).
---------------------------------------------------------------------------
These explicit delegations of federal authority to be
assumed by the new State were not discretionary or permissive.
Instead, the United States retained responsibility for the
administration and amendment of the Hawaiian Homes Commission
Act, and continues to oversee the use of Ceded Lands and the
income or proceeds therefrom. Sections 4 and 5 of the Hawaii
Admission Act clearly contemplate a continuing Federal role.
The federal government retains the right to enforce the
trust responsibility for Native Hawaiians.\18\ In fact, the
Hawaii Admission Act provided that the use of the Ceded Lands
and revenues for any use other than the five specified uses
shall constitute a breach of trust for which suit may be
brought by the United States.'\19\ Likewise, sections 204 and
223 of the Hawaiian Homes Commission Act require the Secretary
of the Interior to consent to certain exchanges of trust land
and reserves to Congress the right to amend that Act. Federal
and state courts have repeatedly concluded that the United
States retains the authority to bring an enforcement action
against the State of Hawaii for breach of the trust
responsibilities set forth in section 5 of the Hawaii Admission
Act.\20\ These responsibilities are also enforceable by the
Native Hawaiian beneficiaries themselves.\21\
---------------------------------------------------------------------------
\18\Id.
\19\Public Law 86-3, Sec. 4.
\20\See e.g., Han v. United States, 45 F. 3d 333 (9th Cir. 1995).
\21\See, e.g., Keaukaha-Panaewa Community Ass'n v. Hawaiian Homes
Comm'n, 739 F. 2d 1467 (9th Cir. 1984) (finding that Section 5(f) of
the Hawaii Admission Act, which set aside lands held in trust under the
Hawaiian Homes Commission Act, creates a federal right in the Native
Hawaiian beneficiaries enforceable prospectively against the State of
Hawaii under 42 U.S.C. 1983); Napeahi v. Paty, 921 F.2d 897 (9th Cir.
1990), cert. denied, 502 U.S. 901 (1991) (same, concerning lands which
were assets of the land trust created under Section5(f) of the Hawaii
Admission Act but which were not Hawaiian Home lands.).
---------------------------------------------------------------------------
1978 Amendments to the Hawaii Constitution
In 1978, the Hawaii State constitution was amended to
further the special relationship with Native Hawaiians and to
protect Native Hawaiian sub-sistence rights, hunting and
gathering rights, their right to self-determination and self-
governance, and their attempts to preserve their culture and
language. The 1978 amendments established a quasi-independent
state agency, the Office of Hawaiian Affairs. Pursuant to the
1978 amendments, the Office was to be governed by nine trustees
who are Native Hawaiian and who are to be elected by Native
Hawaiians.
Hawaii's adoption of amendments to the State constitution
to fulfill the special relationship with Native Hawaiians is
consistent with the practice of other states that have
established special relationships with the native inhabitants
of their areas. Fourteen states have extended recognition to
Indian tribes that are not recognized by the federal
government, and thirty-two states have established commissions
and offices to address matters of policy affecting their
indigenous citizenry.
Apology resolution
One hundred years after the illegal overthrow of the Native
Hawaiian government, a resolution extending an apology on
behalf of the United States to Native Hawaiians for the illegal
overthrow of the Native Hawaiian government and calling for a
reconciliation of the relationship between the United States
and Native Hawaiians was enacted into law (Apology
Resolution).\22\ The Apology Resolution acknowledges that the
overthrow of the Kingdom of Hawaii occurred with the active
participation of agents and citizens of the United States and
further acknowledges that the Native Hawaiian people never
directly relinquished their claims to their inherent
sovereignty as a people over their national lands to the United
States, either through their government or through a plebiscite
or referendum.
---------------------------------------------------------------------------
\22\Public Law 103-150.
---------------------------------------------------------------------------
Reconciliation report
In response to the Apology Resolution, the Departments of
the Interior and Justice initiated a process of reconciliation
in 1999 by conducting meetings in Native Hawaiian communities
on each of the principal islands in the State of Hawaii. At
each meeting, Native Hawaiians identified what they believe are
the necessary elements of a process to reconcile the
relationship between the United States and the Native Hawaiian
people. Although the two departments made several
recommendations, the principal recommendation was ``that the
Native Hawaiian people should have self-determination over
their own affairs within the framework of Federal law, as do
Native American tribes . . . [and] [t]o safeguard and enhance
Native Hawaiian self-determination over their lands, cultural
resources, and internal affairs, the Departments believe
Congress should enact further legislation to clarify Native
Hawaiians' political status and to create a framework for
recognizing a government-to-government relationship with a
representative Native Hawaiian governing body.''\23\
---------------------------------------------------------------------------
\23\From Mauka to Makai: The River of Justice Must Flow Freely,
Report on the Reconciliation Process between the Federal Government and
Native Hawaiians Prepared by the Department of the Interior and the
Department of Justice, p. 17, October 23, 2000.
---------------------------------------------------------------------------
Rice v. Cayetano
On February 23, 2000, the United States Supreme Court
issued a ruling in the case of Rice v. Cayetano.\24\ The
Supreme Court held that the provision of state law requiring
those voting for the office of Trustee of the Office of
Hawaiian Affairs to be Native Hawaiian violated the Fifteenth
Amendment of the United States Constitution. The Court in Rice
specifically stated that it need not decide whether Native
Hawaiians have the same status as Indian tribes because of its
finding that the provision violated the Fifteenth Amendment.
The Court found that the Office of Hawaiian Affairs is an
agency of the State of Hawaii, funded in part by appropriations
made by the state legislature. Therefore, the election for the
trustees of the Office of Hawaiian Affairs must be open to all
citizens of the State of Hawaii who are otherwise eligible to
vote in statewide elections. Accordingly, all Hawaiian citizens
may vote for the candidates for the trustee positions and may
themselves be candidates for these offices.\25\ Consequently,
Native Hawaiians have been divested of the mechanism that,
since 1978, has enabled them to give expression to their rights
as indigenous, native people of the United States to self-
determination and self-governance. H.R. 2314 would address
these developments by extending the federal policy of self-
determination and self-governance to Native Hawaiians.
---------------------------------------------------------------------------
\24\528 U.S. 495 (2000).
\25\See, Arakaki v. State of Hawaii, 314 F.3d 1091 (9th Cir. 2002)
(invalidating on similar grounds the requirement that candidates for
that office to be Native Hawaiian).
---------------------------------------------------------------------------
Congress' plenary authority
For more than 200 years, the United States Congress, the
Executive Branch, and the United States Supreme Court have
recognized certain legal rights and protections for America's
indigenous peoples. Since the founding of the United States,
Congress has exercised constitutional authority over indigenous
affairs and has undertaken an enhanced duty of care for
America's indigenous peoples. This has been done in recognition
of the sovereignty possessed by the native people--a
sovereignty which pre-existed the formation of the United
States. Congress' constitutional authority is premised upon the
status of the indigenous people as the original inhabitants of
this nation who occupied and exercised dominion and control
over the lands which eventually became the United States.
The United States has long recognized the existence of a
political relationship with the indigenous people of the United
States. The United States has recognized that Native
Americans--American Indians, Alaska Natives, and Native
Hawaiians--are entitled to different rights and considerations.
Congress has enacted laws to give expression to the respective
legal rights and responsibilities of the federal government and
the native people. As the United States Supreme Court stated in
Morton v. Mancari,\26\ the United States relationship with
Native Americans is ``political rather than racial in
nature''\27\ and legislation providing a preference for members
of such groups does not violate the Equal Protection Clause of
the Fourteenth Amendment of the United States Constitution
where ``the special treatment can be tied rationally to the
fulfillment of Congress' unique obligations toward the
Indians[.]''\28\
---------------------------------------------------------------------------
\26\417 U.S. 535 (1974).
\27\Id. at 553, n. 24.
\28\Id. at 554.
---------------------------------------------------------------------------
The United States Supreme Court has so often addressed the
scope of Congress' constitutional authority to address the
conditions of native people that it is now well-established.
The Court has characterized the authority of Congress as
``plenary''\29\ or as ``plenary and exclusive.''\30\ In
addition, the Court has frequently stated its views regarding
the broad scope of Congressional authority with respect to
native people\31\ and other ``dependent sovereign[s] that [are]
not . . . state[s].''\32\ The report filed with S. 344 during
the 108th Congress sets forth a more extensive discussion of
the constitutional sources of Congressional authority to
legislate on matters relating to Native Americans, including
the reorganization of a Native Hawaiian governing entity.\33\
---------------------------------------------------------------------------
\29\Id.
\30\United States v. Lara, 541 U.S. 193 (2004).
\31\Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977);
United States v. Sioux Nation, 448 U.S. 371 (1980).
\32\Lara, 541 U.S. at 203.
\33\See, S. Rept. 108-85, at 22-36.
---------------------------------------------------------------------------
United States v. Lara
In April, 2004, the United States Supreme Court issued its
decision in United States v. Lara.\34\ The Court expressed the
view that Congress enjoys ```plenary' grants of power''\35\ to
legislate over matters relating to Indians and clarified its
views of the sources of that power.\36\
---------------------------------------------------------------------------
\34\541 U.S. 193 (2004).
\35\Id., at 202; emphasis added.
\36\The Court noted that the power of Congress in Indian affairs
derives not only from the Indian Commerce Clause, U.S. Const., Art. I,
Sec. 8, cl. 3, and the Treaty Clause, Art. II, Sec. 2, cl. 2, but rests
also ``upon the Constitution's adoption of preconstitutional powers
necessarily inherent in any Federal Government, namely powers that [the
U.S. Supreme] Court has described as `necessary concomitants of
nationality.''' Id. at 200-201.
---------------------------------------------------------------------------
The Lara decision is pertinent to H.R. 2314 because in
finding that Congress has the authority to modify the contours
of inherent Indian tribal sovereignty, the Court compared, and
justified, the particular modifications in sovereignty involved
in that case with some examples of ``adjustments to the
autonomous status of other such dependent entities,'' including
the Territory of Hawaii, the Northern Mariana Islands, the
Philippines and Puerto Rico.\37\ The Court acknowledged that
Congress' plenary power over Indian affairs, which stems not
only from the Indian Commerce Clause but also the Treaty Clause
and the ``necessary concomitants of nationality,''\38\ includes
the power to recognize, terminate and restore the tribal status
of Indian tribes.\39\ In short, the plenary grants of power
described by the Court should be more than broad enough to
encompass the provisions of H.R. 2314.
---------------------------------------------------------------------------
\37\Id., at 203-4; emphasis added.
\38\Id., at 201-2.
\39\Id. See, also, the Court's observations in U.S. v. John, 437
U.S. 634 (1978): ``[I]n view of the elaborate history, recounted above,
of relations between the Mississippi Choctaws and the United States, we
do not agree that Congress and the Executive Branch have less power to
deal with the affairs of the Mississippi Choctaws than with the affairs
of other Indian groups. Neither the fact that the Choctaws in
Mississippi are merely a remnant of a larger group of Indians, long ago
removed from Mississippi, nor the fact that federal supervision over
them has not been continuous, destroys the federal power to deal with
them.'' Id., at 652-3.
---------------------------------------------------------------------------
Legislative history
In the 106th Congress, H.R. 4904 was introduced by
Representative Abercrombie. A companion bill, S. 2899, was
introduced in the Senate. Between August 28 and September 1,
2000, the Committee on Resources held a 5-day joint hearing
with the Senate Committee on Indian Affairs on H.R. 4904 and S.
2899, in Honolulu, Hawaii, and received extensive oral and
written testimony from witnesses. See S. Hrg. 106-753 and the
addendum printed in S. Hrg. 106-1105. A hearing on S. 2899 was
held in Washington D.C. on September 14, 2000. See S. Hrg. 106-
795. H.R. 4904 was reported by the Committee on Resources with
its accompanying report, H. Rept. 106-897, and passed the House
of Representatives by voice vote on September 26, 2000. S. 2899
was reported from the Committee on Indian Affairs with its
accompanying report, S. Rept. 106-424.
In the 107th Congress, H.R. 617 was introduced by
Representative Abercrombie. It was ordered reported by the
Committee on Resources with its accompanying report, H. Rept.
107-140. Companion bills, S. 746 and S. 1783, were introduced
in the Senate. S. 746 (with its accompanying report S. Rept.
107-66) was ordered reported by the Committee on Indian
Affairs.
In the 108th Congress, H.R. 665 and H.R. 4282 were
introduced by Representative Abercrombie. H.R. 4282 was
introduced to reflect negotiations between the State of Hawaii,
the Hawaii Congressional delegation and the Administration. It
was ordered reported by the Committee on Resources with its
accompanying report, H. Rept. 108-742. A companion bill, S.
344, was introduced in the Senate. A hearing was held by the
Committee on Indian Affairs on February 25, 2003, and it was
ordered reported with its accompanying report, S. Rept. 108-85.
In the 109th Congress, H.R. 309 was introduced by
Representative Abercrombie. S. 147 was introduced in the
Senate, and after a hearing held on March 1, 2005, the
Committee on Indian Affairs ordered the bill reported from the
Committee on Indian Affairs with its accompanying report, S.
Rept. 109-68. After S. 147 was reported from the Committee, S.
3064 was introduced to address concerns raised by the
Department of Justice. It was placed directly on the Senate
Legislative Calendar. On June 8, 2006, S. 147 failed to garner
the necessary vote to invoke cloture.
In the 110th Congress, H.R. 505 was introduced by
Representative Abercrombie and referred to the Committee on
Natural Resources. It was ordered reported by the Committee by
voice vote with no amendments on May 2, 2007, with its
accompanying report H. Rept. 110-389. On October 24, 2007, H.R.
505 passed the House of Representatives on a vote of 261 yeas
and 153 nays. It was placed on the Senate Legislative Calendar.
A companion bill, S. 310, was introduced in the Senate. After a
hearing, S. 310 was ordered reported with its accompanying
report, S. Rept. 110-260.
COMMITTEE ACTION
H.R. 2314 was introduced on May 7, 2009 by Representative
Abercrombie (D-HI). The bill was referred to the Committee on
Natural Resources. On June 11, 2009, the Natural Resources
Committee held a hearing on the bill. On December 16, 2009, the
Committee met to consider the bill. A motion to postpone
consideration of H.R. 2314 until February 24, 2010 made by
Representative Hastings (R-WA) was not agreed to by a roll call
vote of 9 yeas and 25 nays, as follows:
A motion to reconsider the vote was made by Representative
Hastings. A motion to table the motion to reconsider made by
Representative Miller (D-CA) was agreed to by a roll call vote
of 23 yeas and 8 nays, as follows:
An amendment offered by Representative Lamborn (R-CO) to
require approval of the organic governing documents of the
Native Hawaiian Governing Entity by a referendum of all
Hawaiian citizens was not agreed to by voice vote. An amendment
offered by Representative Broun (R-GA) to grant the Supreme
Court of the United States original and exclusive jurisdiction
over any Constitutional challenges to any section or provision
of the underlying Act was not agreed to by voice vote. An
amendment offered by Representative Hastings (R-WA) to
eliminate the gaming prohibition clause was not agreed to by
voice vote. The bill was then favorably reported to the House
of Representatives by a roll call vote of 26 yeas and 13 nays,
as follows:
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 sets forth the short title of the bill as the
``Native Hawaiian Government Reorganization Act of 2009.''
Section 2. Findings
Section 2 sets forth findings, including findings regarding
the history of Native Hawaiians; their interactions with the
United States; Congress' authority over Native Hawaiians;
Congress' past declaration of the political and legal
relationship with Native Hawaiians; and Native Hawaiians
expression of their rights to self-determination, self-
governance, and economic self-sufficiency.
Section 3. Definitions
Section 3 sets forth definitions of terms used in this Act,
including definitions for the term ``Native Hawaiian,'' which
is defined as 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 resided in the
islands that now comprise the State of Hawaii on or before
January 1, 1893 and who occupied and exercised sovereignty in
the Hawaiian archipelago, including the area that now
constitutes the State of Hawaii, or 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 or a direct lineal descendant of that
individual.
Section 4. United States policy and purpose
Section 4 reaffirms policies of the United States,
including that Native Hawaiians are indigenous, native people;
the United States has a political and legal relationship with
Native Hawaiians; that Congress has the authority under Article
I, section 8, clause 3 of the United States Constitution to
enact legislation to address the conditions of Native Hawaiians
and has done so in more than 150 federal laws; that Native
Hawaiians have an inherent right to autonomy in their internal
affairs, an inherent right of self-determination and self-
governance, the right to reorganize a Native Hawaiian governing
entity, and the right to become economically self-sufficient;
and that the United States shall continue to engage in the
process of reconciliation and political relations with Native
Hawaiians.
This section also sets forth the purpose of this Act, which
is to provide a process for the reorganization of a Native
Hawaiian governing entity and the reaffirmation of the
political and legal relationship between the United States and
the Native Hawaiian governing entity.
Section 5. United States Office for Native Hawaiian Relations
Section 5 establishes the United States Office for Native
Hawaiian Relations (Office) in the Office of the Secretary of
the Department of the Interior and sets forth the duties of the
Office. These duties include continuing the process of
reconciliation with Native Hawaiians; effectuating and
coordinating the political and legal relationship between the
Native Hawaiian governing entity and the United States;
consulting with the Native Hawaiian governing entity before
taking any actions that may have the potential to significantly
affect Native Hawaiian resources, rights, or lands; consulting
with the Interagency Coordinating Group, other federal
agencies, and the State of Hawaii on policies, practices, and
proposed actions affecting Native Hawaiian resources, rights,
or lands; and preparing and submitting an annual report
containing certain information to specified Committees of
Congress and providing recommendations for any necessary
changes to federal law or regulations. This section does not
apply to the Department of Defense but the Secretary of Defense
may designate one or more officials as liaison to the Office.
Section 6. Native Hawaiian Interagency Coordinating Group
Section 6 establishes the Native Hawaiian Interagency
Coordinating Group, which is to be composed of officials from
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 the
Office for Native Hawaiian Relations. The specific duties of
the Interagency Coordinating Group are set forth but,
generally, the Group will coordinate federal programs and
policies affecting Native Hawaiians. This section does not
apply to the Department of Defense but the Secretary of Defense
may designate one or more officials as liaison to the
Interagency Coordinating Group.
Section 7. Process for the reorganization of the Native Hawaiian
governing entity and the reaffirmation of the special political
and legal relationship between the United States and the Native
Hawaiian governing entity
Section 7 addresses the process for the reorganization of
the Native Hawaiian governing entity and provides for the
reaffirmation of the political and legal relationship between
the United States and the Native Hawaiian governing entity.
This section recognizes the right of Native Hawaiians to
reorganize a single Native Hawaiian governing entity to provide
for their common welfare and to adopt appropriate organic
governing documents. A Commission is established to 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 to certify that the adult
members of the Native Hawaiian community, who have submitted
sufficient documentation and proposed for inclusion on the
roll, meet the definition of ``Native Hawaiian.''
Commission members will be appointed by the Secretary of
the Interior and must have not less than 10 years of experience
in the study and determination of Native Hawaiian genealogy and
an ability to read and translate into English documents written
in the Hawaiian language. Duties of the Commission include
preparing and maintaining a roll of the adult members of the
Native Hawaiian community and certifying to the Secretary that
each of the adult members proposed for inclusion on the roll
meet the definition of ``Native Hawaiian'' set forth in this
Act. The certified roll shall be published in the Federal
Register. An appeal mechanism may be established by the
Secretary for any person whose name is excluded from the roll
but who claims to meet the ``Native Hawaiian'' definition.
The adult members listed on the certified roll may develop
criteria for candidates to serve on the Native Hawaiian Interim
Governing Council, determine the structure of the Council, and
elect members to service on the Council. This section sets
forth the powers and activities of the Council, which include
developing organic governing documents for the Native Hawaiian
governing entity and holding elections to ratify such organic
documents.
Following ratification, the organic governing documents
shall be submitted to the Secretary. The Secretary must certify
that the organic documents contain certain information,
including civil rights protection for 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.
Upon certification of the organic governing documents and
the election of officers of the Native Hawaiian governing
entity, the political and legal relationship between the United
States and the Native Hawaiian governing entity will
automatically be reaffirmed and federal recognition shall be
extended to the Native Hawaiian governing entity.
Section 8. Reaffirmation of delegation of Federal authority;
negotiations; claims
Section 8 reaffirms the delegation of authority to the
State of Hawaii to address the conditions of Native Hawaiians.
It provides that upon 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
negotiate with the Native Hawaiian governing entity on certain
issues. Negotiation topics include the transfer of lands,
natural resources, and other assets, and the protection of
existing rights related to such lands or resources; the
exercise of governmental authority over any transferred lands,
natural resources, and other assets, including land use; the
exercise of civil and criminal jurisdiction; the delegation of
governmental powers and authorities to the Native Hawaiian
governing entity by the United States and the State of Hawaii;
any residual responsibilities of the United States and the
State of Hawaii; and grievances regarding assertions of
historical wrongs committed against Native Hawaiians by the
United States or by the State of Hawaii. Upon agreement of any
matters, the parties may submit proposed amendments to federal
or state law to the Congress or the State of Hawaii,
respectively. Any governmental power or authority of the Native
Hawaiian governing entity which is currently exercised by the
state or federal governments shall only be exercised by the
Native Hawaiian governing entity as agreed to in negotiations
under this section.
Additionally, this section provides that this Act does not
create a cause of action against the United States or any other
entity or person; alter existing law regarding obligations on
the part of the United States or the State of Hawaii with
regard to Native Hawaiians or any Native Hawaiian entity;
create obligations that did not exist in any source of federal
law prior to the date of enactment of this Act; or establish
authority for the recognition of more than one Native Hawaiian
governing entity. In addition, nothing in this Act creates any
breach-of-trust actions, land claims, resource-protection or
resource-management claims by or on behalf of Native Hawaiians
or the Native Hawaiian governing entity and the United States
retains its sovereign immunity from suit to any claim that
exists prior to enactment of this Act which could be brought by
Native Hawaiians or a Native Hawaiian governing entity. Any
claims that may have already accrued and may be brought against
the United States shall be rendered nonjusticiable.
The State of Hawaii also retains its sovereign immunity
unless waived in accordance with state law. Finally, nothing in
this Act may be construed as overriding section 5 of the
Fourteenth Amendment or state sovereign immunity held under the
Eleventh Amendment.
Section 9. Applicability of certain Federal laws
This section prohibits the Native Hawaiian governing entity
and Native Hawaiians from conducting gaming as a matter of
claimed inherent authority or under any federal law, including
the Indian Gaming Regulatory Act in the State of Hawaii or
within any other State or Territory of the United States.
The Secretary may not take land into trust for Native
Hawaiians or on behalf of the Native Hawaiian governing entity.
It makes clear that the Indian Trade and Intercourse Act does
not, has never, and will not apply after enactment to lands or
lands transfers present, past, or future, in the State of
Hawaii. If a Court construes otherwise, any land transfers
before the date of enactment of this Act shall be deemed to
have been made in accordance with the Indian Trade and
Intercourse Act.
Only one Native Hawaiian governing entity may be recognized
pursuant to this Act. Any other groups shall not be eligible
for the Federal Acknowledgment Process.
Nothing in this Act alters the civil or criminal
jurisdiction of the United States or the State of Hawaii over
lands and persons within the State of Hawaii, unless otherwise
negotiated pursuant to section 8.
Native Hawaiians shall not be eligible for programs and
services available to Indians unless otherwise provided under
applicable federal law. 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.
Section 10. Severability
The section provides that if any section or provision of
this Act is found to be invalid, the remaining sections or
provisions shall continue in full force and effect.
Section 11. Authorization of appropriations
This section authorizes such sums as necessary to carry out
this Act.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
FEDERAL ADVISORY COMMITTEE STATEMENT
The functions of the proposed advisory committee authorized
in the bill are not currently being nor could they be performed
by one or more agencies, an advisory committee already in
existence or by enlarging the mandate of an existing advisory
committee.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is 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.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 2314--Native Hawaiian Government Reorganization Act of 2009
H.R. 2314 would establish a process for a Native Hawaiian
government to be constituted and recognized by the federal
government. CBO estimates that implementing this legislation
would cost about $1 million annually in fiscal years 2010-2012
and less than $500,000 in each subsequent year, assuming the
availability of appropriated funds. Enacting the bill would not
affect direct spending or revenues.
The bill would establish the United States Office for
Native Hawaiian Relations within the Department of the Interior
(DOI) to consult and coordinate the relationship with the
Native Hawaiian governing entity. Based on information from
DOI, CBO expects that the office would require up to three
full-time personnel. H.R. 2314 also would establish the Native
Hawaiian Interagency Coordinating Group, consisting of
officials from interested agencies. Finally, the bill would
create a nine-member commission responsible for creating and
certifying a roll of adult Native Hawaiians. Based on
information from DOI, CBO expects that this commission would
need three years and three full-time staff to complete its
work.
H.R. 2314 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
Enacting this legislation could lead to the creation of a new
government unit to represent Native Hawaiians. The transfer of
any land or other assets, including land now controlled by the
state of Hawaii, would be the subject of future negotiations.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
EARMARK STATEMENT
H.R. 2314 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
H.R. 2314 is described by its proponents as legislation to
recognize Native Hawaiians for the purpose of organizing a
single governing entity to represent them on a government-to-
government basis with the State of Hawaii and the Federal
government. This is a circuitous means of saying that H.R. 2314
creates a Native Hawaiian Indian tribe, one that could enroll
up to 400,000 members (and more after it is recognized). This
would be one of the largest tribes in the United States,
accordingly with the largest expectation of taxpayer dollars
during a time of historic federal deficits and debt.
But there is a key difference between the Hawaiian
``tribe'' recognized under H.R. 2314 and the tribes duly
recognized through Treaty or Act of Congress: the former is not
a tribe within the meaning of the Indian Commerce Clause of the
Constitution (Article I, Section 8) because it does not share
the historical and political relations of Indian tribes with
Congress. While proponents often take pains to stress they do
not propose to recognize a ``tribe,'' but a ``governing
entity,'' the plain language of H.R. 2314 and the Akaka
Substitute (discussed below) do extend tribal recognition.
Proponents argue that Congress possesses broad, plenary
authority to recognize Indian tribes. They point to a number of
Acts passed over the years, including some 160 federal programs
benefiting Native Hawaiians because of their status as Native
Hawaiians, as evidence that Congress recognizes Native
Hawaiians' special status. The fact that federal, racially-
based benefits have already been passed is hardly a valid
argument on the merits for extending recognition to a Native
Hawaiian tribe. This is like saying that the Democrats' $787
billion ``stimulus'' is evidence that more federal spending is
warranted.
More importantly, the Supreme Court considered a case, Rice
v. Cayetano, related to this controversy. The lawsuit involved
a Hawaii state law that limited to Native Hawaiians the
eligibility to vote in elections for trustees of the Office of
Hawaiian Affairs (OHA). In a 7-2 decision the Supreme Court
held that such a restriction is race-based and therefore
prohibited by the 15th Amendment to the Constitution. Though
the case did not involve a Native Hawaiian entity specifically
recognized by Congress, the majority opinion noted that such a
proposition ``would raise questions of considerable moment and
difficulty. It is a matter of some dispute . . . whether
Congress may treat the native Hawaiians as it does the Indian
tribes.''
H.R. 2314 purports to recognize a Native Hawaiian tribe,
but because this would exceed constitutional limits on who
Congress can recognize as an Indian, it seeks to establish a
race-based government. For this reason, a majority of the U.S.
Commission on Civil Rights, which was established pursuant to
the Civil Rights Act of 1957, recommended ``against passage of
the Native Hawaiian Government Reorganization Act . . . or any
other legislation that would discriminate on the basis of race
or national origin and further subdivide the American people
into discrete subgroups accorded varying degrees of
privilege.''
In the June 11, 2009, hearing on this bill, the testimony
of Civil Rights Commission Gail Heriot is instructive. She
describes why granting tribal sovereignty to Native Hawaiians
does not fit with the islands' history:
The 1840 Constitution of Hawaii established a
bicameral parliament whose members were multi-racial.
By 1893 [when Hawaii's ruling monarchy was overthrown],
ethnic Hawaiians were a minority of the population.
Anyone who was born on Hawaiian soil or who swore
allegiance to the Queen was considered a subject of the
Queen and hence ``Hawaiian,'' regardless of race. This
was no kinship-based tribe. It is thus difficult to
argue that ethnic Hawaiians in particular have a right
to sovereignty that was violated by the overthrow.
More important, all of this has been water under the
bridge at least since 1959 when Hawaii was made a State
. . . On June 27, 1959, 94.3% of Hawaiian voters cast
ballots in favor of statehood.
Despite this overwhelming support for Statehood and one set
of laws governing all Hawaiians, H.R. 2314 proposes to create a
two-tiered system of governance in Hawaii based on one's race.
Worse, it is impossible to say precisely how inclusive the
entity will be even with respect to Native people of varying
degrees of Hawaiian ancestry: under H.R. 2314 the governing
entity may discard the carefully-crafted membership rules after
it receives federal recognition, and construct an entirely new
set of membership rules.
The Akaka Substitute
In the Committee markup of H.R. 2314, Hawaii Congressman
Neil Abercrombie filed an amendment in the nature of a
substitute that was informally called the ``Akaka Substitute''
after the Senator from Hawaii who oversaw its development. The
Akaka Substitute was drafted in secret by Hawaiian advocates
and the Obama Administration, to the exclusion of the
participation of Hawaii's Governor and Attorney General. Sprung
upon the Committee just prior to the markup as a kind of
Midnight Surprise, the Akaka Substitute would have made a bad
bill even worse.
As introduced, H.R. 2314 provides that matters such as
transferring lands and preempting Federal and State civil,
criminal, and tax jurisdiction, must be subject to negotiation
with, and the concurrence of, the State of Hawaii and the U.S.
Congress. The Akaka Substitute would have short-circuited this
reasonable public process by immediately endowing the Hawaiian
tribe with the inherent governing powers possessed by other
recognized tribes, and preempting State civil and tax authority
without the State's consent.
The Akaka Substitute was not offered by Mr. Abercrombie in
a gesture of bipartisanship for which the Gentleman is to be
commended. It must be noted that it was withdrawn after a
letter was submitted to the Committee by the Hawaii Attorney
General on his behalf and Hawaii's Governor. While the Governor
and Attorney General had been ``strong advocates and supports
of [Native Hawaiian Recognition legislation] for years'', they
strongly opposed the Akaka Substitute because it would
``completely change the nature of the Native Hawaiian governing
entity.'' In their words:
These changes, taken together, change the bill from
one where the status quo and the relations between the
United States, the State of Hawaii, and the Native
Hawaiian governing entity can be changed only after
negotiations and after passage of implementing
legislation, to a model in which the status quo
immediately changes, pursuant to an Indian law model.''
(Emphasis in the original). (Letter to Chairman Rahall
and Ranking Member Hastings, December 15, 2009).
If those secretly writing the Akaka Substitute seek to keep
the Governor and Attorney General in the dark, then what
exactly is the goal? Unfortunately, we will probably know only
when H.R. 2314 is brought to the Floor, presumably with another
substitute amendment drafted behind closed doors. This manner
of legislating is not worthy of the grave subject matter at
hand, regardless of one's position on it.
In the end, if H.R. 2314 passes, the days of this entity
will be numbered. It may take years and millions of dollars in
billable hours, but the Supreme Court will perform the job that
Congress is duty-bound to undertake today: reject a race-based
governing entity in violation of the Constitution. But how many
dollars will be spent, and how many racial and political scars
will be left on Hawaii's citizens when this controversy is
concluded?
H.R. 2314 should be soundly rejected.
Doc Hastings.
Attachment: Letter from State of Hawaii Attorney General
Bennett.