II 

Calendar No. 459 

109TH CONGRESS 

2D SESSION S. 3064 

To express the policy of the United States regarding the United States 

relationship with Native Hawaiians and to provide a process for the 

recognition by the United States of the Native Hawaiian governing 

entity. 

IN THE SENATE OF THE UNITED STATES 

MAY 25, 2006 

Mr. AKAKA (for himself and Mr. INOUYE) introduced the following bill; which 

was read the first time 

MAY 26, 2006 

Read the second time and placed on the calendar 

A BILL 

To express the policy of the United States regarding the 

United States relationship with Native Hawaiians and 

to provide a process for the recognition by the United 

States of the Native Hawaiian governing entity. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Native Hawaiian Gov5 ernment Reorganization Act of 2006’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) the Constitution vests Congress with the au4 thority to address the conditions of the indigenous, 

5 native people of the United States; 

6 (2) Native Hawaiians, the native people of the 

7 Hawaiian archipelago that is now part of the United 

8 States, are indigenous, native people of the United 

9 States; 

10 (3) the United States has a special political and 

11 legal relationship to promote the welfare of the na12 tive people of the United States, including Native 

13 Hawaiians; 

14 (4) under the treaty making power of the 

15 United States, Congress exercised its constitutional 

16 authority to confirm treaties between the United 

17 States and the Kingdom of Hawaii, and from 1826 

18 until 1893, the United States— 

19 (A) recognized the sovereignty of the King20 dom of Hawaii; 

21 (B) accorded full diplomatic recognition to 

22 the Kingdom of Hawaii; and 

23 (C) entered into treaties and conventions 

24 with the Kingdom of Hawaii to govern com25 merce and navigation in 1826, 1842, 1849, 

26 1875, and 1887; 


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1 (5) pursuant to the Hawaiian Homes Commis2 sion Act, 1920 (42 Stat. 108, chapter 42), the 

3 United States set aside approximately 203,500 acres 

4 of land to address the conditions of Native Hawai5 ians in the Federal territory that later became the 

6 State of Hawaii; 

7 (6) by setting aside 203,500 acres of land for 

8 Native Hawaiian homesteads and farms, the Hawai9 ian Homes Commission Act assists the members of 

10 the Native Hawaiian community in maintaining dis11 tinct native settlements throughout the State of Ha12 waii; 

13 (7) approximately 6,800 Native Hawaiian fami14 lies reside on the Hawaiian Home Lands and ap15 proximately 18,000 Native Hawaiians who are eligi16 ble to reside on the Hawaiian Home Lands are on 

17 a waiting list to receive assignments of Hawaiian 

18 Home Lands; 

19 (8)(A) in 1959, as part of the compact with the 

20 United States admitting Hawaii into the Union, 

21 Congress established a public trust (commonly 

22 known as the ‘‘ceded lands trust’’), for 5 purposes, 

23 1 of which is the betterment of the conditions of Na24 tive Hawaiians; 


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1 (B) the public trust consists of lands, including 

2 submerged lands, natural resources, and the reve3 nues derived from the lands; and 

4 (C) the assets of this public trust have never 

5 been completely inventoried or segregated; 

6 (9) Native Hawaiians have continuously sought 

7 access to the ceded lands in order to establish and 

8 maintain native settlements and distinct native com9 munities throughout the State; 

10 (10) the Hawaiian Home Lands and other 

11 ceded lands provide an important foundation for the 

12 ability of the Native Hawaiian community to main13 tain the practice of Native Hawaiian culture, lan14 guage, and traditions, and for the survival and eco15 nomic self-sufficiency of the Native Hawaiian people; 

16 (11) Native Hawaiians continue to maintain 

17 other distinctly native areas in Hawaii; 

18 (12) on November 23, 1993, Public Law 103– 

19 150 (107 Stat. 1510) (commonly known as the 

20 ‘‘Apology Resolution’’) was enacted into law, extend21 ing an apology on behalf of the United States to the 

22 native people of Hawaii for the United States’ role 

23 in the overthrow of the Kingdom of Hawaii; 

24 (13) the Apology Resolution acknowledges that 

25 the overthrow of the Kingdom of Hawaii occurred 


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1 with the active participation of agents and citizens 

2 of the United States and further acknowledges that 

3 the Native Hawaiian people never directly relin4 quished to the United States their claims to their in5 herent sovereignty as a people over their national 

6 lands, either through the Kingdom of Hawaii or 

7 through a plebiscite or referendum; 

8 (14) the Apology Resolution expresses the com9 mitment of Congress and the President— 

10 (A) to acknowledge the ramifications of the 

11 overthrow of the Kingdom of Hawaii; 

12 (B) to support reconciliation efforts be13 tween the United States and Native Hawaiians; 

14 and 

15 (C) to consult with Native Hawaiians on 

16 the reconciliation process as called for in the 

17 Apology Resolution; 

18 (15) despite the overthrow of the government of 

19 the Kingdom of Hawaii, Native Hawaiians have con20 tinued to maintain their separate identity as a single 

21 distinct native community through cultural, social, 

22 and political institutions, and to give expression to 

23 their rights as native people to self-determination, 

24 self-governance, and economic self-sufficiency; 


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1 (16) Native Hawaiians have also given expres2 sion to their rights as native people to self-deter3 mination, self-governance, and economic self-suffi4 ciency— 

5 (A) through the provision of governmental 

6 services to Native Hawaiians, including the pro7 vision of— 

8 (i) health care services; 

9 (ii) educational programs; 

10 (iii) employment and training pro11 grams; 

12 (iv) economic development assistance 

13 programs; 

14 (v) children’s services; 

15 (vi) conservation programs; 

16 (vii) fish and wildlife protection; 

17 (viii) agricultural programs; 

18 (ix) native language immersion pro19 grams; 

20 (x) native language immersion schools 

21 from kindergarten through high school; 

22 (xi) college and master’s degree pro23 grams in native language immersion in24 struction; and 

25 (xii) traditional justice programs, and 


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1 (B) by continuing their efforts to enhance 

2 Native Hawaiian self-determination and local 

3 control; 

4 (17) Native Hawaiians are actively engaged in 

5 Native Hawaiian cultural practices, traditional agri6 cultural methods, fishing and subsistence practices, 

7 maintenance of cultural use areas and sacred sites, 

8 protection of burial sites, and the exercise of their 

9 traditional rights to gather medicinal plants and 

10 herbs, and food sources; 

11 (18) the Native Hawaiian people wish to pre12 serve, develop, and transmit to future generations of 

13 Native Hawaiians their lands and Native Hawaiian 

14 political and cultural identity in accordance with 

15 their traditions, beliefs, customs and practices, lan16 guage, and social and political institutions, to con17 trol and manage their own lands, including ceded 

18 lands, and to achieve greater self-determination over 

19 their own affairs; 

20 (19) this Act provides a process within the 

21 framework of Federal law for the Native Hawaiian 

22 people to exercise their inherent rights as a distinct, 

23 indigenous, native community to reorganize a single 

24 Native Hawaiian governing entity for the purpose of 


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1 giving expression to their rights as native people to 

2 self-determination and self-governance; 

3 (20) Congress— 

4 (A) has declared that the United States 

5 has a special political and legal relationship for 

6 the welfare of the native peoples of the United 

7 States, including Native Hawaiians; 

8 (B) has identified Native Hawaiians as a 

9 distinct group of indigenous, native people of 

10 the United States within the scope of its au11 thority under the Constitution, and has enacted 

12 scores of statutes on their behalf; and 

13 (C) has delegated broad authority to the 

14 State of Hawaii to administer some of the 

15 United States’ responsibilities as they relate to 

16 the Native Hawaiian people and their lands; 

17 (21) the United States has recognized and re18 affirmed the special political and legal relationship 

19 with the Native Hawaiian people through the enact20 ment of the Act entitled, ‘‘An Act to provide for the 

21 admission of the State of Hawaii into the Union’’, 

22 approved March 18, 1959 (Public Law 86–3; 73 

23 Stat. 4), by— 

24 (A) ceding to the State of Hawaii title to 

25 the public lands formerly held by the United 


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1 States, and mandating that those lands be held 

2 as a public trust for 5 purposes, 1 of which is 

3 for the betterment of the conditions of Native 

4 Hawaiians; and 

5 (B) transferring the United States’ respon6 sibility for the administration of the Hawaiian 

7 Home Lands to the State of Hawaii, but retain8 ing the exclusive right of the United States to 

9 consent to any actions affecting the lands in10 cluded in the trust and any amendments to the 

11 Hawaiian Homes Commission Act, 1920 (42 

12 Stat. 108, chapter 42) that are enacted by the 

13 legislature of the State of Hawaii affecting the 

14 beneficiaries under the Act; 

15 (22) the United States has continually recog16 nized and reaffirmed that— 

17 (A) Native Hawaiians have a cultural, his18 toric, and land-based link to the aboriginal, in19 digenous, native people who exercised sov20 ereignty over the Hawaiian Islands; 

21 (B) Native Hawaiians have never relin22 quished their claims to sovereignty or their sov23 ereign lands; 

24 (C) the United States extends services to 

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1 tus as the indigenous, native people of a once2 sovereign nation with whom the United States 

3 has a special political and legal relationship; 

4 and 

5 (D) the special relationship of American 

6 Indians, Alaska Natives, and Native Hawaiians 

7 to the United States arises out of their status 

8 as aboriginal, indigenous, native people of the 

9 United States; and 

10 (23) the State of Hawaii supports the reaffir11 mation of the special political and legal relationship 

12 between the Native Hawaiian governing entity and 

13 the United States as evidenced by 2 unanimous reso14 lutions enacted by the Hawaii State Legislature in 

15 the 2000 and 2001 sessions of the Legislature and 

16 by the testimony of the Governor of the State of Ha17 waii before the Committee on Indian Affairs of the 

18 Senate on February 25, 2003, and March 1, 2005. 

19 SEC. 3. DEFINITIONS. 

20 In this Act: 

21 (1) ABORIGINAL, INDIGENOUS, NATIVE PEO22 PLE.—The term ‘‘aboriginal, indigenous, native peo23 ple’’ means people whom Congress has recognized as 

24 the original inhabitants of the lands that later be25 came part of the United States and who exercised 


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1 sovereignty in the areas that later became part of 

2 the United States. 

3 (2) ADULT MEMBER.—The term ‘‘adult mem4 ber’’ means a Native Hawaiian who has attained the 

5 age of 18 and who elects to participate in the reor6 ganization of the Native Hawaiian governing entity. 

7 (3) APOLOGY RESOLUTION.—The term ‘‘Apol8 ogy Resolution’’ means Public Law 103–150 (107 

9 Stat. 1510), a Joint Resolution extending an apol10 ogy to Native Hawaiians on behalf of the United 

11 States for the participation of agents of the United 

12 States in the January 17, 1893, overthrow of the 

13 Kingdom of Hawaii. 

14 (4) COMMISSION.—The term ‘‘commission’’ 

15 means the Commission established under section 

16 7(b) to provide for the certification that those adult 

17 members of the Native Hawaiian community listed 

18 on the roll meet the definition of Native Hawaiian 

19 set forth in paragraph (10). 

20 (5) COUNCIL.—The term ‘‘council’’ means the 

21 Native Hawaiian Interim Governing Council estab22 lished under section 7(c)(2). 

23 (6) INDIAN PROGRAM OR SERVICE.— 

24 (A) IN GENERAL.—The term ‘‘Indian pro25 gram or service’’ means any federally funded or 


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1 authorized program or service provided to an 

2 Indian tribe (or member of an Indian tribe) be3 cause of the status of the members of the In4 dian tribe as Indians. 

5 (B) INCLUSIONS.—The term ‘‘Indian pro6 gram or service’’ includes a program or service 

7 provided by the Bureau of Indian Affairs, the 

8 Indian Health Service, or any other Federal 

9 agency. 

10 (7) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 

11 has the meaning given the term in section 4 of the 

12 Indian Self-Determination and Education Assistance 

13 Act (25 U.S.C. 450b). 

14 (8) INDIGENOUS, NATIVE PEOPLE.—The term 

15 ‘‘indigenous, native people’’ means the lineal de16 scendants of the aboriginal, indigenous, native peo17 ple of the United States. 

18 (9) INTERAGENCY COORDINATING GROUP.—The 

19 term ‘‘Interagency Coordinating Group’’ means the 

20 Native Hawaiian Interagency Coordinating Group 

21 established under section 6. 

22 (10) NATIVE HAWAIIAN.— 

23 (A) IN GENERAL.—Subject to subpara24 graph (B), for the purpose of establishing the 

25 roll authorized under section 7(c)(1) and before 


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1 the reaffirmation of the special political and 

2 legal relationship between the United States 

3 and the Native Hawaiian governing entity, the 

4 term ‘‘Native Hawaiian’’ means— 

5 (i) an individual who is 1 of the indig6 enous, native people of Hawaii and who is 

7 a direct lineal descendant of the aboriginal, 

8 indigenous, native people who— 

9 (I) resided in the islands that 

10 now comprise the State of Hawaii on 

11 or before January 1, 1893; and 

12 (II) occupied and exercised sov13 ereignty in the Hawaiian archipelago, 

14 including the area that now con15 stitutes the State of Hawaii; or 

16 (ii) an individual who is 1 of the in17 digenous, native people of Hawaii and who 

18 was eligible in 1921 for the programs au19 thorized by the Hawaiian Homes Commis20 sion Act (42 Stat. 108, chapter 42) or a 

21 direct lineal descendant of that individual. 

22 (B) NO EFFECT ON OTHER DEFINI23 TIONS.—Nothing in this paragraph affects the 

24 definition of the term ‘‘Native Hawaiian’’ under 


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1 any other Federal or State law (including a reg2 ulation). 

3 (11) NATIVE HAWAIIAN GOVERNING ENTITY.— 

4 The term ‘‘Native Hawaiian Governing Entity’’ 

5 means the governing entity organized by the Native 

6 Hawaiian people pursuant to this Act. 

7 (12) NATIVE HAWAIIAN PROGRAM OR SERV8 ICE.—The term ‘‘Native Hawaiian program or serv9 ice’’ means any program or service provided to Na10 tive Hawaiians because of their status as Native Ha11 waiians. 

12 (13) OFFICE.—The term ‘‘Office’’ means the 

13 United States Office for Native Hawaiian Relations 

14 established by section 5(a). 

15 (14) SECRETARY.—The term ‘‘Secretary’’ 

16 means the Secretary of the Interior. 

17 (15) SPECIAL POLITICAL AND LEGAL RELA18 TIONSHIP.—The term ‘‘special political and legal re19 lationship’’ shall refer, except where differences are 

20 specifically indicated elsewhere in the Act, to the 

21 type of and nature of relationship the United States 

22 has with the several federally recognized Indian 

23 tribes. 

24 SEC. 4. UNITED STATES POLICY AND PURPOSE. 

25 (a) POLICY.—The United States reaffirms that— 


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1 (1) Native Hawaiians are a unique and distinct, 

2 indigenous, native people with whom the United 

3 States has a special political and legal relationship; 

4 (2) the United States has a special political and 

5 legal relationship with the Native Hawaiian people 

6 which includes promoting the welfare of Native Ha7 waiians; 

8 (3) Congress possesses the authority under the 

9 Constitution, including but not limited to Article I, 

10 section 8, clause 3, to enact legislation to address 

11 the conditions of Native Hawaiians and has exer12 cised this authority through the enactment of— 

13 (A) the Hawaiian Homes Commission Act, 

14 1920 (42 Stat. 108, chapter 42); 

15 (B) the Act entitled ‘‘An Act to provide for 

16 the admission of the State of Hawaii into the 

17 Union’’, approved March 18, 1959 (Public Law 

18 86–3, 73 Stat. 4); and 

19 (C) more than 150 other Federal laws ad20 dressing the conditions of Native Hawaiians; 

21 (4) Native Hawaiians have— 

22 (A) an inherent right to autonomy in their 

23 internal affairs; 

24 (B) an inherent right of self-determination 

25 and self-governance; 


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1 (C) the right to reorganize a Native Ha2 waiian governing entity; and 

3 (D) the right to become economically self4 sufficient; and 

5 (5) the United States shall continue to engage 

6 in a process of reconciliation and political relations 

7 with the Native Hawaiian people. 

8 (b) PURPOSE.—The purpose of this Act is to provide 

9 a process for the reorganization of the single Native Ha10 waiian governing entity and the reaffirmation of the spe11 cial political and legal relationship between the United 

12 States and that Native Hawaiian governing entity for pur13 poses of continuing a government-to-government relation14 ship. 

15 SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RE16 LATIONS. 

17 (a) ESTABLISHMENT.—There is established within 

18 the Office of the Secretary, the United States Office for 

19 Native Hawaiian Relations. 

20 (b) DUTIES.—The Office shall— 

21 (1) continue the process of reconciliation with 

22 the Native Hawaiian people in furtherance of the 

23 Apology Resolution; 

24 (2) upon the reaffirmation of the special polit25 ical and legal relationship between the single Native 


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1 Hawaiian governing entity and the United States, 

2 effectuate and coordinate the special political and 

3 legal relationship between the Native Hawaiian gov4 erning entity and the United States through the 

5 Secretary, and with all other Federal agencies; 

6 (3) fully integrate the principle and practice of 

7 meaningful, regular, and appropriate consultation 

8 with the Native Hawaiian governing entity by pro9 viding timely notice to, and consulting with, the Na10 tive Hawaiian people and the Native Hawaiian gov11 erning entity before taking any actions that may 

12 have the potential to significantly affect Native Ha13 waiian resources, rights, or lands; 

14 (4) consult with the Interagency Coordinating 

15 Group, other Federal agencies, and the State of Ha16 waii on policies, practices, and proposed actions af17 fecting Native Hawaiian resources, rights, or lands; 

18 and 

19 (5) prepare and submit to the Committee on 

20 Indian Affairs and the Committee on Energy and 

21 Natural Resources of the Senate and the Committee 

22 on Resources of the House of Representatives an an23 nual report detailing the activities of the Interagency 

24 Coordinating Group that are undertaken with re25 spect to the continuing process of reconciliation and 


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1 to effect meaningful consultation with the Native 

2 Hawaiian governing entity and providing rec3 ommendations for any necessary changes to Federal 

4 law or regulations promulgated under the authority 

5 of Federal law. 

6 (c) APPLICABILITY TO DEPARTMENT OF DE7 FENSE.—This section shall have no applicability to the 

8 Department of Defense or to any agency or component 

9 of the Department of Defense, but the Secretary of De10 fense may designate 1 or more officials as liaison to the 

11 Office. 

12 SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING 

13 GROUP. 

14 (a) ESTABLISHMENT.—In recognition that Federal 

15 programs authorized to address the conditions of Native 

16 Hawaiians are largely administered by Federal agencies 

17 other than the Department of the Interior, there is estab18 lished an interagency coordinating group to be known as 

19 the ‘‘Native Hawaiian Interagency Coordinating Group’’. 

20 (b) COMPOSITION.—The Interagency Coordinating 

21 Group shall be composed of officials, to be designated by 

22 the President, from— 

23 (1) each Federal agency that administers Na24 tive Hawaiian programs, establishes or implements 

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1 tions may significantly or uniquely impact Native 

2 Hawaiian resources, rights, or lands; and 

3 (2) the Office. 

4 (c) LEAD AGENCY.— 

5 (1) IN GENERAL.—The Department of the Inte6 rior shall serve as the lead agency of the Interagency 

7 Coordinating Group. 

8 (2) MEETINGS.—The Secretary shall convene 

9 meetings of the Interagency Coordinating Group. 

10 (d) DUTIES.—The Interagency Coordinating Group 

11 shall— 

12 (1) coordinate Federal programs and policies 

13 that affect Native Hawaiians or actions by any agen14 cy or agencies of the Federal Government that may 

15 significantly or uniquely affect Native Hawaiian re16 sources, rights, or lands; 

17 (2) consult with the Native Hawaiian governing 

18 entity, through the coordination referred to in sec19 tion 6(d)(1), but the consultation obligation estab20 lished in this provision shall apply only after the sat21 isfaction of all of the conditions referred to in sec22 tion 7(c)(6); and 

23 (3) ensure the participation of each Federal 

24 agency in the development of the report to Congress 

25 authorized in section 5(b)(5). 


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1 (e) APPLICABILITY TO DEPARTMENT OF DE2 FENSE.—This section shall have no applicability to the 

3 Department of Defense or to any agency or component 

4 of the Department of Defense, but the Secretary of De5 fense may designate 1 or more officials as liaison to the 

6 Interagency Coordinating Group. 

7 SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NA8 TIVE HAWAIIAN GOVERNING ENTITY AND 

9 THE REAFFIRMATION OF THE SPECIAL PO10 LITICAL AND LEGAL RELATIONSHIP BE11 TWEEN THE UNITED STATES AND THE NA12 TIVE HAWAIIAN GOVERNING ENTITY. 

13 (a) RECOGNITION OF THE NATIVE HAWAIIAN GOV14 ERNING ENTITY.—The right of the Native Hawaiian peo15 ple to reorganize the single Native Hawaiian governing en16 tity to provide for their common welfare and to adopt ap17 propriate organic governing documents is recognized by 

18 the United States. 

19 (b) COMMISSION.— 

20 (1) IN GENERAL.—There is authorized to be es21 tablished a Commission to be composed of 9 mem22 bers for the purposes of— 

23 (A) preparing and maintaining a roll of the 

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1 tion of the single Native Hawaiian governing 

2 entity; and 

3 (B) certifying that the adult members of 

4 the Native Hawaiian community proposed for 

5 inclusion on the roll meet the definition of Na6 tive Hawaiian in section 3(10). 

7 (2) MEMBERSHIP.— 

8 (A) APPOINTMENT.— 

9 (i) IN GENERAL.—Not later than 180 

10 days after the date of enactment of this 

11 Act, the Secretary shall appoint the mem12 bers of the Commission in accordance with 

13 subparagraph (B). 

14 (ii) CONSIDERATION.—In making an 

15 appointment under clause (i), the Sec16 retary may take into consideration a rec17 ommendation made by any Native Hawai18 ian organization. 

19 (B) REQUIREMENTS.—Each member of 

20 the Commission shall demonstrate, as deter21 mined by the Secretary— 

22 (i) not less than 10 years of experi23 ence in the study and determination of Na24 tive Hawaiian genealogy; and 


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1 (ii) an ability to read and translate 

2 into English documents written in the Ha3 waiian language. 

4 (C) VACANCIES.—A vacancy on the Com5 mission— 

6 (i) shall not affect the powers of the 

7 Commission; and 

8 (ii) shall be filled in the same manner 

9 as the original appointment. 

10 (3) EXPENSES.—Each member of the Commis11 sion shall be allowed travel expenses, including per 

12 diem in lieu of subsistence, at rates authorized for 

13 employees of agencies under subchapter I of chapter 

14 57 of title 5, United States Code, while away from 

15 their homes or regular places of business in the per16 formance of services for the Commission. 

17 (4) DUTIES.—The Commission shall— 

18 (A) prepare and maintain a roll of the 

19 adult members of the Native Hawaiian commu20 nity who elect to participate in the reorganiza21 tion of the Native Hawaiian governing entity; 

22 and 

23 (B) certify that each of the adult members 

24 of the Native Hawaiian community proposed for 


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1 inclusion on the roll meets the definition of Na2 tive Hawaiian in section 3(10). 

3 (5) STAFF.— 

4 (A) IN GENERAL.—The Commission may, 

5 without regard to the civil service laws (includ6 ing regulations), appoint and terminate an exec7 utive director and such other additional per8 sonnel as are necessary to enable the Commis9 sion to perform the duties of the Commission. 

10 (B) COMPENSATION.— 

11 (i) IN GENERAL.—Except as provided 

12 in clause (ii), the Commission may fix the 

13 compensation of the executive director and 

14 other personnel without regard to the pro15 visions of chapter 51 and subchapter III of 

16 chapter 53 of title 5, United States Code, 

17 relating to classification of positions and 

18 General Schedule pay rates. 

19 (ii) MAXIMUM RATE OF PAY.—The 

20 rate of pay for the executive director and 

21 other personnel shall not exceed the rate 

22 payable for level V of the Executive Sched23 ule under section 5316 of title 5, United 

24 States Code. 


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1 (6) DETAIL OF FEDERAL GOVERNMENT EM2 PLOYEES.— 

3 (A) IN GENERAL.—An employee of the 

4 Federal Government may be detailed to the 

5 Commission without reimbursement. 

6 (B) CIVIL SERVICE STATUS.—The detail of 

7 the employee shall be without interruption or 

8 loss of civil service status or privilege. 

9 (7) PROCUREMENT OF TEMPORARY AND INTER10 MITTENT SERVICES.—The Commission may procure 

11 temporary and intermittent services in accordance 

12 with section 3109(b) of title 5, United States Code, 

13 at rates for individuals that do not exceed the daily 

14 equivalent of the annual rate of basic pay prescribed 

15 for level V of the Executive Schedule under section 

16 5316 of that title. 

17 (8) EXPIRATION.—The Secretary shall dissolve 

18 the Commission upon the reaffirmation of the spe19 cial political and legal relationship between the Na20 tive Hawaiian governing entity and the United 

21 States. 

22 (c) PROCESS FOR THE REORGANIZATION OF THE NA23 TIVE HAWAIIAN GOVERNING ENTITY.— 

24 (1) ROLL.— 


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1 (A) CONTENTS.—The roll shall include the 

2 names of the adult members of the Native Ha3 waiian community who elect to participate in 

4 the reorganization of the Native Hawaiian gov5 erning entity and are certified to be Native Ha6 waiian as defined in section 3(10) by the Com7 mission. 

8 (B) FORMATION OF ROLL.—Each adult 

9 member of the Native Hawaiian community 

10 who elects to participate in the reorganization 

11 of the Native Hawaiian governing entity shall 

12 submit to the Commission documentation in the 

13 form established by the Commission that is suf14 ficient to enable the Commission to determine 

15 whether the individual meets the definition of 

16 Native Hawaiian in section 3(10). 

17 (C) DOCUMENTATION.—The Commission 

18 shall— 

19 (i) identify the types of documentation 

20 that may be submitted to the Commission 

21 that would enable the Commission to de22 termine whether an individual meets the 

23 definition of Native Hawaiian in section 

24 3(10); 


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1 (ii) establish a standard format for 

2 the submission of documentation; and 

3 (iii) publish information related to 

4 clauses (i) and (ii) in the Federal Register. 

5 (D) CONSULTATION.—In making deter6 minations that each of the adult members of 

7 the Native Hawaiian community proposed for 

8 inclusion on the roll meets the definition of Na9 tive Hawaiian in section 3(10), the Commission 

10 may consult with Native Hawaiian organiza11 tions, agencies of the State of Hawaii including 

12 but not limited to the Department of Hawaiian 

13 Home Lands, the Office of Hawaiian Affairs, 

14 and the State Department of Health, and other 

15 entities with expertise and experience in the de16 termination of Native Hawaiian ancestry and 

17 lineal descendancy. 

18 (E) CERTIFICATION AND SUBMITTAL OF

19 ROLL TO SECRETARY.—The Commission 

20 shall— 

21 (i) submit the roll containing the 

22 names of the adult members of the Native 

23 Hawaiian community who meet the defini24 tion of Native Hawaiian in section 3(10) to 

25 the Secretary within two years from the 


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1 date on which the Commission is fully 

2 composed; and 

3 (ii) certify to the Secretary that each 

4 of the adult members of the Native Hawai5 ian community proposed for inclusion on 

6 the roll meets the definition of Native Ha7 waiian in section 3(10). 

8 (F) PUBLICATION.—Upon certification by 

9 the Commission to the Secretary that those list10 ed on the roll meet the definition of Native Ha11 waiian in section 3(10), the Secretary shall pub12 lish the roll in the Federal Register. 

13 (G) APPEAL.—The Secretary may estab14 lish a mechanism for an appeal for any person 

15 whose name is excluded from the roll who 

16 claims to meet the definition of Native Hawai17 ian in section 3(10) and to be 18 years of age 

18 or older. 

19 (H) PUBLICATION; UPDATE.—The Sec20 retary shall— 

21 (i) publish the roll regardless of 

22 whether appeals are pending; 

23 (ii) update the roll and the publication 

24 of the roll on the final disposition of any 

25 appeal; and 


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1 (iii) update the roll to include any Na2 tive Hawaiian who has attained the age of 

3 18 and who has been certified by the Com4 mission as meeting the definition of Native 

5 Hawaiian in section 3(10) after the initial 

6 publication of the roll or after any subse7 quent publications of the roll. 

8 (I) FAILURE TO ACT.—If the Secretary 

9 fails to publish the roll, not later than 90 days 

10 after the date on which the roll is submitted to 

11 the Secretary, the Commission shall publish the 

12 roll notwithstanding any order or directive 

13 issued by the Secretary or any other official of 

14 the Department of the Interior to the contrary. 

15 (J) EFFECT OF PUBLICATION.—The publi16 cation of the initial and updated roll shall serve 

17 as the basis for the eligibility of adult members 

18 of the Native Hawaiian community whose 

19 names are listed on those rolls to participate in 

20 the reorganization of the Native Hawaiian gov21 erning entity. 

22 (2) ORGANIZATION OF THE NATIVE HAWAIIAN

23 INTERIM GOVERNING COUNCIL.— 


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1 (A) ORGANIZATION.—The adult members 

2 of the Native Hawaiian community listed on the 

3 roll published under this section may— 

4 (i) develop criteria for candidates to 

5 be elected to serve on the Native Hawaiian 

6 Interim Governing Council; 

7 (ii) determine the structure of the 

8 Council; and 

9 (iii) elect members from individuals 

10 listed on the roll published under this sub11 section to the Council. 

12 (B) POWERS.— 

13 (i) IN GENERAL.—The Council— 

14 (I) may represent those listed on 

15 the roll published under this section in 

16 the implementation of this Act; and 

17 (II) shall have no powers other 

18 than powers given to the Council 

19 under this Act. 

20 (ii) FUNDING.—The Council may 

21 enter into a contract with, or obtain a 

22 grant from, any Federal or State agency to 

23 carry out clause (iii). 

24 (iii) ACTIVITIES.— 


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1 (I) IN GENERAL.—The Council 

2 may conduct a referendum among the 

3 adult members of the Native Hawai4 ian community listed on the roll pub5 lished under this subsection for the 

6 purpose of determining the proposed 

7 elements of the organic governing doc8 uments of the Native Hawaiian gov9 erning entity, including but not lim10 ited to— 

11 (aa) the proposed criteria 

12 for citizenship of the Native Ha13 waiian governing entity; 

14 (bb) the proposed powers 

15 and authorities to be exercised by 

16 the Native Hawaiian governing 

17 entity, as well as the proposed 

18 privileges and immunities of the 

19 Native Hawaiian governing enti20 ty; 

21 (cc) the proposed civil rights 

22 and protection of the rights of 

23 the citizens of the Native Hawai24 ian governing entity and all per25 sons affected by the exercise of 


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1 governmental powers and au2 thorities of the Native Hawaiian 

3 governing entity; and 

4 (dd) other issues determined 

5 appropriate by the Council. 

6 (II) DEVELOPMENT OF ORGANIC

7 GOVERNING DOCUMENTS.—Based on 

8 the referendum, the Council may de9 velop proposed organic governing doc10 uments for the Native Hawaiian gov11 erning entity. 

12 (III) DISTRIBUTION.—The Coun13 cil may distribute to all adult mem14 bers of the Native Hawaiian commu15 nity listed on the roll published under 

16 this subsection— 

17 (aa) a copy of the proposed 

18 organic governing documents, as 

19 drafted by the Council; and 

20 (bb) a brief impartial de21 scription of the proposed organic 

22 governing documents. 

23 (IV) ELECTIONS.—The Council 

24 may hold elections for the purpose of 

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1 erning documents, and on certification 

2 of the organic governing documents 

3 by the Secretary in accordance with 

4 paragraph (4), hold elections of the 

5 officers of the Native Hawaiian gov6 erning entity pursuant to paragraph 

7 (5). 

8 (3) SUBMITTAL OF ORGANIC GOVERNING DOCU9 MENTS.—Following the reorganization of the Native 

10 Hawaiian governing entity and the adoption of or11 ganic governing documents, the Council shall submit 

12 the organic governing documents of the Native Ha13 waiian governing entity to the Secretary. 

14 (4) CERTIFICATIONS.— 

15 (A) IN GENERAL.—Within the context of 

16 the future negotiations to be conducted under 

17 the authority of section 8(b)(1), and the subse18 quent actions by the Congress and the State of 

19 Hawaii to enact legislation to implement the 

20 agreements of the 3 governments, not later 

21 than 90 days after the date on which the Coun22 cil submits the organic governing documents to 

23 the Secretary, the Secretary shall certify that 

24 the organic governing documents— 


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1 (i) establish the criteria for citizenship 

2 in the Native Hawaiian governing entity; 

3 (ii) were adopted by a majority vote of 

4 the adult members of the Native Hawaiian 

5 community whose names are listed on the 

6 roll published by the Secretary; 

7 (iii) provide authority for the Native 

8 Hawaiian governing entity to negotiate 

9 with Federal, State, and local govern10 ments, and other entities; 

11 (iv) provide for the exercise of govern12 mental authorities by the Native Hawaiian 

13 governing entity, including any authorities 

14 that may be delegated to the Native Ha15 waiian governing entity by the United 

16 States and the State of Hawaii following 

17 negotiations authorized in section 8(b)(1) 

18 and the enactment of legislation to imple19 ment the agreements of the 3 governments; 

20 (v) prevent the sale, disposition, lease, 

21 or encumbrance of lands, interests in 

22 lands, or other assets of the Native Hawai23 ian governing entity without the consent of 

24 the Native Hawaiian governing entity; 


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1 (vi) provide for the protection of the 

2 civil rights of the citizens of the Native 

3 Hawaiian governing entity and all persons 

4 affected by the exercise of governmental 

5 powers and authorities by the Native Ha6 waiian governing entity; and 

7 (vii) are consistent with applicable 

8 Federal law and the special political and 

9 legal relationship between the United 

10 States and the indigenous, native people of 

11 the United States; provided that the provi12 sions of Public Law 103–454, 25 U.S.C. 

13 479a, shall not apply. 

14 (B) RESUBMISSION IN CASE OF NON15 COMPLIANCE WITH THE REQUIREMENTS OF

16 SUBPARAGRAPH (A).— 

17 (i) RESUBMISSION BY THE SEC18 RETARY.—If the Secretary determines that 

19 the organic governing documents, or any 

20 part of the documents, do not meet all of 

21 the requirements set forth in subparagraph 

22 (A), the Secretary shall resubmit the or23 ganic governing documents to the Council, 

24 along with a justification for each of the 


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1 Secretary’s findings as to why the provi2 sions are not in full compliance. 

3 (ii) AMENDMENT AND RESUBMISSION

4 OF ORGANIC GOVERNING DOCUMENTS.—If 

5 the organic governing documents are re6 submitted to the Council by the Secretary 

7 under clause (i), the Council shall— 

8 (I) amend the organic governing 

9 documents to ensure that the docu10 ments meet all the requirements set 

11 forth in subparagraph (A); and 

12 (II) resubmit the amended or13 ganic governing documents to the Sec14 retary for certification in accordance 

15 with this paragraph. 

16 (C) CERTIFICATIONS DEEMED MADE.— 

17 The certifications under paragraph (4) shall be 

18 deemed to have been made if the Secretary has 

19 not acted within 90 days after the date on 

20 which the Council has submitted the organic 

21 governing documents of the Native Hawaiian 

22 governing entity to the Secretary. 

23 (5) ELECTIONS.—On completion of the certifi24 cations by the Secretary under paragraph (4), the 


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1 Council may hold elections of the officers of the Na2 tive Hawaiian governing entity. 

3 (6) REAFFIRMATION.—Notwithstanding any 

4 other provision of law, upon the certifications re5 quired under paragraph (4) and the election of the 

6 officers of the Native Hawaiian governing entity, the 

7 special political and legal relationship between the 

8 United States and the Native Hawaiian governing 

9 entity is hereby reaffirmed and the United States ex10 tends Federal recognition to the Native Hawaiian 

11 governing entity as the representative governing 

12 body of the Native Hawaiian people. 

13 SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AU14 THORITY; NEGOTIATIONS; CLAIMS. 

15 (a) REAFFIRMATION.—The delegation by the United 

16 States of authority to the State of Hawaii to address the 

17 conditions of the indigenous, native people of Hawaii con18 tained in the Act entitled ‘‘An Act to provide for the ad19 mission of the State of Hawaii into the Union’’ approved 

20 March 18, 1959 (Public Law 86–3, 73 Stat. 4), is re21 affirmed. 

22 (b) NEGOTIATIONS.— 

23 (1) IN GENERAL.—Upon the reaffirmation of 

24 the special political and legal relationship between 

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1 erning entity, the United States and the State of 

2 Hawaii may enter into negotiations with the Native 

3 Hawaiian governing entity designed to lead to an 

4 agreement addressing such matters as— 

5 (A) the transfer of lands, natural re6 sources, and other assets, and the protection of 

7 existing rights related to such lands or re8 sources; 

9 (B) the exercise of governmental authority 

10 over any transferred lands, natural resources, 

11 and other assets, including land use; 

12 (C) the exercise of civil and criminal juris13 diction; 

14 (D) the delegation of governmental powers 

15 and authorities to the Native Hawaiian gov16 erning entity by the United States and the 

17 State of Hawaii; 

18 (E) any residual responsibilities of the 

19 United States and the State of Hawaii; and 

20 (F) grievances regarding assertions of his21 torical wrongs committed against Native Ha22 waiians by the United States or by the State of 

23 Hawaii. 

24 (2) AMENDMENTS TO EXISTING LAWS.—Upon 

25 agreement on any matter or matters negotiated with 


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1 the United States, the State of Hawaii, and the Na2 tive Hawaiian governing entity, the parties are au3 thorized to submit— 

4 (A) to the Committee on Indian Affairs of 

5 the Senate, the Committee on Energy and Nat6 ural Resources of the Senate, and the Com7 mittee on Resources of the House of Represent8 atives, recommendations for proposed amend9 ments to Federal law that will enable the imple10 mentation of agreements reached between the 3 

11 governments; and 

12 (B) to the Governor and the legislature of 

13 the State of Hawaii, recommendations for pro14 posed amendments to State law that will enable 

15 the implementation of agreements reached be16 tween the 3 governments. 

17 (3) GOVERNMENTAL AUTHORITY AND

18 POWER.—Any governmental authority or power to 

19 be exercised by the Native Hawaiian governing enti20 ty which is currently exercised by the State or Fed21 eral Governments shall be exercised by the Native 

22 Hawaiian governing entity only as agreed to in nego23 tiations pursuant to section 8(b)(1) of this Act and 

24 beginning on the date on which legislation to imple25 ment such agreement has been enacted by the 


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1 United States Congress, when applicable, and by the 

2 State of Hawaii, when applicable. This includes any 

3 required modifications to the Hawaii State Constitu4 tion in accordance with the Hawaii Revised Statutes. 

5 (c) CLAIMS.— 

6 (1) DISCLAIMERS.—Nothing in this Act— 

7 (A) creates a cause of action against the 

8 United States or any other entity or person; 

9 (B) alters existing law, including existing 

10 case law, regarding obligations on the part of 

11 the United States or the State of Hawaii with 

12 regard to Native Hawaiians or any Native Ha13 waiian entity; 

14 (C) creates obligations that did not exist in 

15 any source of Federal law prior to the date of 

16 enactment of this Act; or 

17 (D) establishes authority for the recogni18 tion of Native Hawaiian groups other than the 

19 single Native Hawaiian Governing Entity. 

20 (2) FEDERAL SOVEREIGN IMMUNITY.— 

21 (A) SPECIFIC PURPOSE.—Nothing in this 

22 Act is intended to create or allow to be main23 tained in any court any potential breach-of24 trust actions, land claims, resource-protection 

25 or resource-management claims, or similar 


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1 types of claims brought by or on behalf of Na2 tive Hawaiians or the Native Hawaiian gov3 erning entity for equitable, monetary, or Ad4 ministrative Procedure Act-based relief against 

5 the United States or the State of Hawaii, 

6 whether or not such claims specifically assert 

7 an alleged breach of trust, call for an account8 ing, seek declaratory relief, or seek the recovery 

9 of or compensation for lands once held by Na10 tive Hawaiians. 

11 (B) ESTABLISHMENT AND RETENTION OF

12 SOVEREIGN IMMUNITY.—To effectuate the ends 

13 expressed in section 8(c)(1) and 8(c)(2)(A), and 

14 notwithstanding any other provision of Federal 

15 law, the United States retains its sovereign im16 munity to any claim that existed prior to the 

17 enactment of this Act (including, but not lim18 ited to, any claim based in whole or in part on 

19 past events), and which could be brought by 

20 Native Hawaiians or any Native Hawaiian gov21 erning entity. Nor shall any preexisting waiver 

22 of sovereign immunity (including, but not lim23 ited to, waivers set forth in chapter 7 of part 

24 I of title 5, United States Code, and sections 

25 1505 and 2409a of title 28, United States 


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1 Code) be applicable to any such claims. This 

2 complete retention or reclaiming of sovereign 

3 immunity also applies to every claim that might 

4 attempt to rely on this Act for support, without 

5 regard to the source of law under which any 

6 such claim might be asserted. 

7 (C) EFFECT.—It is the general effect of 

8 section 8(c)(2)(B) that any claims that may al9 ready have accrued and might be brought 

10 against the United States, including any claims 

11 of the types specifically referred to in section 

12 8(c)(2)(A), along with both claims of a similar 

13 nature and claims arising out of the same nu14 cleus of operative facts as could give rise to 

15 claims of the specific types referred to in sec16 tion 8(c)(2)(A), be rendered nonjusticiable in 

17 suits brought by plaintiffs other than the Fed18 eral Government. 

19 (3) STATE SOVEREIGNTY IMMUNITY.— 

20 (A) Notwithstanding any other provision of 

21 Federal law, the State retains its sovereign im22 munity, unless waived in accord with State law, 

23 to any claim, established under any source of 

24 law, regarding Native Hawaiians, that existed 

25 prior to the enactment of this Act. 


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1 (B) Nothing in this Act shall be construed 

2 to constitute an override pursuant to section 5 

3 of the Fourteenth Amendment of State sov4 ereign immunity held under the Eleventh 

5 Amendment. 

6 SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. 

7 (a) INDIAN GAMING REGULATORY ACT.— 

8 (1) The Native Hawaiian governing entity and 

9 Native Hawaiians may not conduct gaming activities 

10 as a matter of claimed inherent authority or under 

11 the authority of any Federal law, including the In12 dian Gaming Regulatory Act (25 U.S.C. 2701 et 

13 seq.) or under any regulations thereunder promul14 gated by the Secretary or the National Indian Gam15 ing Commission. 

16 (2) The foregoing prohibition in section 9(a)(1) 

17 on the use of Indian Gaming Regulatory Act and in18 herent authority to game apply regardless of wheth19 er gaming by Native Hawaiians or the Native Ha20 waiian governing entity would be located on land 

21 within the State of Hawaii or within any other State 

22 or Territory of the United States. 

23 (b) TAKING LAND INTO TRUST.—Notwithstanding 

24 any other provision of law, including but not limited to 

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1 retary shall not take land into trust on behalf of individ2 uals or groups claiming to be Native Hawaiian or on be3 half of the native Hawaiian governing entity. 

4 (c) REAL PROPERTY TRANSFERS.—The Indian 

5 Trade and Intercourse Act (25 U.S.C. 177), does not, has 

6 never, and will not apply after enactment to lands or lands 

7 transfers present, past, or future, in the State of Hawaii. 

8 If despite the expression of this intent herein, a court were 

9 to construe the Trade and Intercourse Act to apply to 

10 lands or land transfers in Hawaii before the date of enact11 ment of this Act, then any transfer of land or natural re12 sources located within the State of Hawaii prior to the 

13 date of enactment of this Act, by or on behalf of the Na14 tive Hawaiian people, or individual Native Hawaiians, 

15 shall be deemed to have been made in accordance with 

16 the Indian Trade and Intercourse Act and any other provi17 sion of Federal law that specifically applies to transfers 

18 of land or natural resources from, by, or on behalf of an 

19 Indian tribe, Native Hawaiians, or Native Hawaiian enti20 ties. 

21 (d) SINGLE GOVERNING ENTITY.—This Act will re22 sult in the recognition of the single Native Hawaiian gov23 erning entity. Additional Native Hawaiian groups shall not 

24 be eligible for acknowledgment pursuant to the Federal 

25 Acknowledgment Process set forth in part 83 of title 25 


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1 of the Code of Federal Regulations or any other adminis2 trative acknowledgment or recognition process. 

3 (e) JURISDICTION.—Nothing in this Act alters the 

4 civil or criminal jurisdiction of the United States or the 

5 State of Hawaii over lands and persons within the State 

6 of Hawaii. The status quo of Federal and State jurisdic7 tion can change only as a result of further legislation, if 

8 any, enacted after the conclusion, in relevant part, of the 

9 negotiation process established in section 8(b). 

10 (f) INDIAN PROGRAMS AND SERVICES.—Notwith11 standing section 7(c)(6), because of the eligibility of the 

12 Native Hawaiian governing entity and its citizens for Na13 tive Hawaiian programs and services in accordance with 

14 subsection (g), nothing in this Act provides an authoriza15 tion for eligibility to participate in any Indian program 

16 or service to any individual or entity not otherwise eligible 

17 for the program or service under applicable Federal law. 

18 (g) NATIVE HAWAIIAN PROGRAMS AND SERVICES.— 

19 The Native Hawaiian governing entity and its citizens 

20 shall be eligible for Native Hawaiian programs and serv21 ices to the extent and in the manner provided by other 

22 applicable laws. 


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1 SEC. 10. SEVERABILITY. 

2 If any section or provision of this Act is held invalid, 

3 it is the intent of Congress that the remaining sections 

4 or provisions shall continue in full force and effect. 

5 SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 

6 There are authorized to be appropriated such sums 

7 as are necessary to carry out this Act. 


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Calendar No. 459 

109TH CONGRESS 

2D SESSION S. 3064 

A BILL 

To express the policy of the United States regardwaiian governing entity. ognition by the United States of the Native Ha- Hawaiians and to provide a process for the rec- ing the United States relationship with Native 

MAY 26, 2006 

Read the second time and placed on the calendar 


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