```

[House Report 110-389]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-389

======================================================================

 
         NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2007

                                _______
                                

October 18, 2007.--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

                        [To accompany H.R. 505]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 505) 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. 505 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. 505 was introduced on January 17, 2007 by 
Representatives Abercrombie (D-HI) and Hirono (D-HI). It 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. 505 
authorizes the Federal recognition of a Native Hawaiian 
government.

Historical Background

    Native Hawaiians are the indigenous, native people of 
Hawai`i, 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 
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 Hawai`i. Rather than 
repeat this detailed history, those documents are hereby 
incorporated into this report. Reference should be made to 
those reports, in particular S. Rep. 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 Hawai`i and its annexation by the United States 
five years later; the establishment of the Territory of Hawai`i 
in 1900; and, finally, the admission of the State of Hawai`i 
into the Union in 1959. A short summary of information will be 
provided to place 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 Hawai`i (``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 Hawai`i to the United 
States. These lands came to be known as the ``Ceded Lands.''

Republic of Hawai`i

    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 Hawai`i. 
Supporters of this revolutionary movement organized the 
Republic of Hawai`i. Notwithstanding strong opposition from 
within the Native Hawaiian community, officials of the Republic 
of Hawai`i 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 Hawai`i Organic 
Act\3\ establishing a government for the newly created 
Territory of Hawai`i.
---------------------------------------------------------------------------
    \2\30 Stat. 750 (August 12, 1898).
    \3\31 Stat. 141 (April 30, 1900).
---------------------------------------------------------------------------

Hawaiian Homes Commission Act, 42 Stat. 108 (July 9, 1921)

    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. Rep. No. 66-839 (1920).
    \5\Id., at 5.
    \6\42 Stat. 108 (July 9, 1921), as amended (Hawaiian Homes 
Commission Act).
    \7\Id., Sec. 203.
    \8\H. Rep. No. 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.R. Rep. No. 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 Hawai`i, 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 Hawai`i 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. 331-334, 339, 342, 348, 349, 354, 381 
(1998).
    \12\42 Stat. 1222, Sec. 3 (Feb. 3, 1923).
    \13\Office of State Planning, Office of the Governor, State of 
Hawai`i, Pt. 1, Report on Federal Breaches of the Hawaiian Home Lands 
Trust, 4-6 (1992).
---------------------------------------------------------------------------

Hawai`i Admission Act, Public Law 86-3, 73 Stat. 4 (March 18, 1959)

    Congress again recognized the unique status of Native 
Hawaiians when Hawai`i gained Statehood in 1959. Upon its 
admission into the Union of States, the Ceded Lands were 
conveyed to the State of Hawai`i.\14\ Section 5(f) of the 
Admission Act requires that the Ceded Lands and the revenues 
derived therefrom be held by the State of Hawai`i 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 Hawai`i 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\Pub. L. No. 86-3, 73 Stat. 4 (March 18, 1959), 5 (the 
``Admission Act'').
    \15\Id., Sec. 5(f); Haw. Const. Art. XII, Sec. 4.
    \16\Id., Sec. 4.
    \17\42 Stat. 108 (July 9, 1921), as amended.
---------------------------------------------------------------------------
    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 Hawai`i 
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 
Admission Act provided that the use of the Ceded Lands and 
revenues for any use other than the five specified uses `shall 
constitute 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 
reserve 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 Hawai`i for breach of the trust responsibilities 
set forth in section 5 of the Admission Act.\20\ These 
responsibilities are also enforceable by the Native Hawaiian 
beneficiaries themselves.\21\
---------------------------------------------------------------------------
    \18\Id.
    \19\Pub. L. No. 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 Hawai`i 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 Hawai`i 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 Hawai`i Admission Act but which were not Hawaiian Home lands.).
---------------------------------------------------------------------------

1978 Amendments to the Hawai`i Constitution

    In 1978, the Hawai`i State constitution was amended to 
further the special relationship with Native Hawaiians and to 
protect Native Hawaiian subsistence 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.
    Hawai`i'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, Public Law 103-150

    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 Hawai`i 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 
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 Hawai`i. 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, 528 U.S. 495 (2000)

    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 Hawai`i, 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 Hawai`i 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. 
505 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 Hawai`i, 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 the past 210 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--they 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\427 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 reports filed with H.R. 4282 and 
S. 344 during the 108th Congress set 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.Rep. No. 108-85, at 22-36.
---------------------------------------------------------------------------

United States v. Lara, 541 U.S. 193 (2004)

    In April, 2004, the United States Supreme Court issued its 
decision in United States v. Lara.\34\ The Lara 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. 505 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 Hawai`i, the Northern Mariana Islands, the 
Philippines and Puerto Rico.\37\ The Lara 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 Lara Court should be more than 
broad enough to encompass the provisions of H.R. 505.
---------------------------------------------------------------------------
    \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, Hawai`i, 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. Rep. No. 106-897, and passed 
the House of Representatives on suspension. S. 2899 was 
reported from the Committee on Indian Affairs with its 
accompanying report, S. Rep. No. 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. Rep. 
No. 107-140. A companion bill, S. 746 (with its accompanying 
report S. Rep. No. 107-66) and S. 1783, were introduced in the 
Senate. S. 746 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 
Hawai`i, the Hawai`i Congressional delegation and the 
Administration. It was ordered reported by the Committee on 
Resources with its accompanying report, H. Rep. No. 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. Rep. No. 108-85.
    In the 109th Congress, H.R. 309 was introduced by 
Representative Abercrombie and referred to the Committee on 
Resources. 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. Rep. No. 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.

                            COMMITTEE ACTION

    H.R. 505 was introduced on January 17, 2007 by 
Representative Abercrombie (D-HI). The bill was referred to the 
Committee on Natural Resources on January 17, 2007. On May 2, 
2007, the Natural Resources Committee met to consider the bill. 
No amendments were offered. The bill was then ordered favorably 
reported to the House of Representatives by voice vote. A 
companion bill, S. 310, has been introduced in the Senate. The 
Committee on Indian Affairs held a hearing on May 3, 2007. It 
was reported without amendment to the Senate on May 10, 2007.

                      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 2007.''

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 Hawai`i and who is a direct lineal descendant 
of the aboriginal, indigenous, native people who resided in the 
islands that now comprise the State of Hawai`i 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 Hawai`i, or an individual who is one 
of the indigenous, native people of Hawai`i 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 Interior and sets forth the duties of the 
Office. The 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 Hawai`i 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 Hawai`i 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 Hawai`i 
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 Hawai`i; 
any residual responsibilities of the United States and the 
State of Hawai`i; and grievances regarding assertions of 
historical wrongs committed against Native Hawaiians by the 
United States or by the State of Hawai`i. Upon agreement of any 
matters, the parties may submit proposed amendments to Federal 
or State law to the Congress or the State of Hawai`i, 
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 Hawai`i 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 Hawai`i 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 Hawai`i 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 
land transfers present, past, or future, in the State of 
Hawai`i. 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 Hawai`i over 
lands and persons within the State of Hawai`i, 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. 505--Native Hawaiian Government Reorganization Act of 2007

    H.R. 505 would set forth a process for establishing and 
recognizing a Native Hawaiian governing entity that would act 
on behalf of its members with the state and the federal 
government. CBO estimates that implementing H.R. 505 would cost 
about $1 million per year over the 2008-2010 period and less 
than $500,000 in each subsequent year, assuming the 
appropriation of the necessary 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). This office would be responsible for developing and 
overseeing the federal relationship with the Native Hawaiian 
governing entity. Based on information from DOI, CBO expects 
that this office would require up to three full-time personnel. 
H.R. 505 would also create a nine-member commission responsible 
for collecting and certifying a membership roll of adult Native 
Hawaiians. Based on the deadlines specified in the bill as well 
as information from DOI, CBO expects that this commission would 
need three years and three full-time staff to complete its 
work.
    H.R. 505 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 to represent Native Hawaiians. Any transfer of land 
now controlled by the state of Hawaii, would be the subject of 
future negotiations.
    The CBO staff contacts for this estimate are Daniel Hoople 
(for federal costs), and Marjorie Miller (for the impact on 
state, local, and tribal governments). This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                           EARMARK STATEMENT

    H.R. 505 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) 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.

                                  

```