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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2314 Reported in House (RH)]

                                                 Union Calendar No. 241
111th CONGRESS
  2d Session
                                H. R. 2314

                          [Report No. 111-412]

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 HOUSE OF REPRESENTATIVES

                              May 7, 2009

 Mr. Abercrombie (for himself and Ms. Hirono) introduced the following 
     bill; which was referred to the Committee on Natural Resources

                           February 22, 2010

 Additional sponsors: Ms. Bordallo, Mr. Faleomavaega, Mr. Kildee, Mr. 
Sablan, Mr. Cole, Mr. Moran of Virginia, Mr. Young of Alaska, and Mrs. 
                              Christensen

                           February 22, 2010

Committed to the Committee of the Whole House on the State of the Union 
                       and ordered to be printed

_______________________________________________________________________

                                 A BILL

 
To express the policy of the United States regarding the United States 
  relationship with Native Hawaiians and to provide a process for the 
   recognition by the United States of the Native Hawaiian governing 
                                entity.

 

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Native Hawaiian Government 
Reorganization Act of 2009''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the Constitution vests Congress with the authority to 
        address the conditions of the indigenous, native people of the 
        United States;
            (2) Native Hawaiians, the native people of the Hawaiian 
        archipelago that is now part of the United States, are 
        indigenous, native people of the United States;
            (3) the United States has a special political and legal 
        relationship to promote the welfare of the native people of the 
        United States, including Native Hawaiians;
            (4) under the treaty making power of the United States, 
        Congress exercised its constitutional authority to confirm 
        treaties between the United States and the Kingdom of Hawaii, 
        and from 1826 until 1893, the United States--
                    (A) recognized the sovereignty of the Kingdom of 
                Hawaii;
                    (B) accorded full diplomatic recognition to the 
                Kingdom of Hawaii; and
                    (C) entered into treaties and conventions with the 
                Kingdom of Hawaii to govern commerce and navigation in 
                1826, 1842, 1849, 1875, and 1887;
            (5) pursuant to the Hawaiian Homes Commission Act, 1920 (42 
        Stat. 108, chapter 42), the United States set aside 
        approximately 203,500 acres of land to address the conditions 
        of Native Hawaiians in the Federal territory that later became 
        the State of Hawaii;
            (6) by setting aside 203,500 acres of land for Native 
        Hawaiian homesteads and farms, the Hawaiian Homes Commission 
        Act assists the members of the Native Hawaiian community in 
        maintaining distinct native settlements throughout the State of 
        Hawaii;
            (7) approximately 6,800 Native Hawaiian families reside on 
        the Hawaiian Home Lands and approximately 18,000 Native 
        Hawaiians who are eligible to reside on the Hawaiian Home Lands 
        are on a waiting list to receive assignments of Hawaiian Home 
        Lands;
            (8)(A) in 1959, as part of the compact with the United 
        States admitting Hawaii into the Union, Congress established a 
        public trust (commonly known as the ``ceded lands trust''), for 
        5 purposes, 1 of which is the betterment of the conditions of 
        Native Hawaiians;
            (B) the public trust consists of lands, including submerged 
        lands, natural resources, and the revenues derived from the 
        lands; and
            (C) the assets of this public trust have never been 
        completely inventoried or segregated;
            (9) Native Hawaiians have continuously sought access to the 
        ceded lands in order to establish and maintain native 
        settlements and distinct native communities throughout the 
        State;
            (10) the Hawaiian Home Lands and other ceded lands provide 
        an important foundation for the ability of the Native Hawaiian 
        community to maintain the practice of Native Hawaiian culture, 
        language, and traditions, and for the survival and economic 
        self-sufficiency of the Native Hawaiian people;
            (11) Native Hawaiians continue to maintain other distinctly 
        native areas in Hawaii;
            (12) on November 23, 1993, Public Law 103-150 (107 Stat. 
        1510) (commonly known as the ``Apology Resolution'') was 
        enacted into law, extending an apology on behalf of the United 
        States to the native people of Hawaii for the United States 
        role in the overthrow of the Kingdom of Hawaii;
            (13) the Apology Resolution acknowledges that the overthrow 
        of the Kingdom of Hawaii occurred with the active participation 
        of agents and citizens of the United States and further 
        acknowledges that the Native Hawaiian people never directly 
        relinquished to the United States their claims to their 
        inherent sovereignty as a people over their national lands, 
        either through the Kingdom of Hawaii or through a plebiscite or 
        referendum;
            (14) the Apology Resolution expresses the commitment of 
        Congress and the President--
                    (A) to acknowledge the ramifications of the 
                overthrow of the Kingdom of Hawaii;
                    (B) to support reconciliation efforts between the 
                United States and Native Hawaiians; and
                    (C) to consult with Native Hawaiians on the 
                reconciliation process as called for in the Apology 
                Resolution;
            (15) despite the overthrow of the Government of the Kingdom 
        of Hawaii, Native Hawaiians have continued to maintain their 
        separate identity as a single distinct native community through 
        cultural, social, and political institutions, and to give 
        expression to their rights as native people to self-
        determination, self-governance, and economic self-sufficiency;
            (16) Native Hawaiians have also given expression to their 
        rights as native people to self-determination, self-governance, 
        and economic self-sufficiency--
                    (A) through the provision of governmental services 
                to Native Hawaiians, including the provision of--
                            (i) health care services;
                            (ii) educational programs;
                            (iii) employment and training programs;
                            (iv) economic development assistance 
                        programs;
                            (v) children's services;
                            (vi) conservation programs;
                            (vii) fish and wildlife protection;
                            (viii) agricultural programs;
                            (ix) native language immersion programs;
                            (x) native language immersion schools from 
                        kindergarten through high school;
                            (xi) college and master's degree programs 
                        in native language immersion instruction; and
                            (xii) traditional justice programs; and
                    (B) by continuing their efforts to enhance Native 
                Hawaiian self-determination and local control;
            (17) Native Hawaiians are actively engaged in Native 
        Hawaiian cultural practices, traditional agricultural methods, 
        fishing and subsistence practices, maintenance of cultural use 
        areas and sacred sites, protection of burial sites, and the 
        exercise of their traditional rights to gather medicinal plants 
        and herbs, and food sources;
            (18) the Native Hawaiian people wish to preserve, develop, 
        and transmit to future generations of Native Hawaiians their 
        lands and Native Hawaiian political and cultural identity in 
        accordance with their traditions, beliefs, customs and 
        practices, language, and social and political institutions, to 
        control and manage their own lands, including ceded lands, and 
        to achieve greater self-determination over their own affairs;
            (19) this Act provides a process within the framework of 
        Federal law for the Native Hawaiian people to exercise their 
        inherent rights as a distinct, indigenous, native community to 
        reorganize a single Native Hawaiian governing entity for the 
        purpose of giving expression to their rights as native people 
        to self-determination and self-governance;
            (20) Congress--
                    (A) has declared that the United States has a 
                special political and legal relationship for the 
                welfare of the native peoples of the United States, 
                including Native Hawaiians;
                    (B) has identified Native Hawaiians as a distinct 
                group of indigenous, native people of the United States 
                within the scope of its authority under the 
                Constitution, and has enacted scores of statutes on 
                their behalf; and
                    (C) has delegated broad authority to the State of 
                Hawaii to administer some of the United States 
                responsibilities as they relate to the Native Hawaiian 
                people and their lands;
            (21) the United States has recognized and reaffirmed the 
        special political and legal relationship with the Native 
        Hawaiian people through the enactment of the Act entitled, ``An 
        Act to provide for the admission of the State of Hawaii into 
        the Union'', approved March 18, 1959 (Public Law 86-3; 73 Stat. 
        4), by--
                    (A) ceding to the State of Hawaii title to the 
                public lands formerly held by the United States, and 
                mandating that those lands be held as a public trust 
                for 5 purposes, 1 of which is for the betterment of the 
                conditions of Native Hawaiians; and
                    (B) transferring the United States responsibility 
                for the administration of the Hawaiian Home Lands to 
                the State of Hawaii, but retaining the exclusive right 
                of the United States to consent to any actions 
                affecting the lands included in the trust and any 
                amendments to the Hawaiian Homes Commission Act, 1920 
                (42 Stat. 108, chapter 42) that are enacted by the 
                legislature of the State of Hawaii affecting the 
                beneficiaries under the Act;
            (22) the United States has continually recognized and 
        reaffirmed that--
                    (A) Native Hawaiians have a cultural, historic, and 
                land-based link to the aboriginal, indigenous, native 
                people who exercised sovereignty over the Hawaiian 
                Islands;
                    (B) Native Hawaiians have never relinquished their 
                claims to sovereignty or their sovereign lands;
                    (C) the United States extends services to Native 
                Hawaiians because of their unique status as the 
                indigenous, native people of a once-sovereign nation 
                with whom the United States has a special political and 
                legal relationship; and
                    (D) the special relationship of American Indians, 
                Alaska Natives, and Native Hawaiians to the United 
                States arises out of their status as aboriginal, 
                indigenous, native people of the United States; and
            (23) the State of Hawaii supports the reaffirmation of the 
        special political and legal relationship between the Native 
        Hawaiian governing entity and the United States as evidenced by 
        2 unanimous resolutions enacted by the Hawaii State Legislature 
        in the 2000 and 2001 sessions of the Legislature and by the 
        testimony of the Governor of the State of Hawaii before the 
        Committee on Indian Affairs of the Senate on February 25, 2003, 
        and March 1, 2005.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Aboriginal, indigenous, native people.--The term 
        ``aboriginal, indigenous, native people'' means people whom 
        Congress has recognized as the original inhabitants of the 
        lands that later became part of the United States and who 
        exercised sovereignty in the areas that later became part of 
        the United States.
            (2) Adult member.--The term ``adult member'' means a Native 
        Hawaiian who has attained the age of 18 and who elects to 
        participate in the reorganization of the Native Hawaiian 
        governing entity.
            (3) Apology resolution.--The term ``Apology Resolution'' 
        means Public Law 103-150 (107 Stat. 1510), a Joint Resolution 
        extending an apology to Native Hawaiians on behalf of the 
        United States for the participation of agents of the United 
        States in the January 17, 1893, overthrow of the Kingdom of 
        Hawaii.
            (4) Commission.--The term ``commission'' means the 
        Commission established under section 7(b) to provide for the 
        certification that those adult members of the Native Hawaiian 
        community listed on the roll meet the definition of Native 
        Hawaiian set forth in paragraph (10).
            (5) Council.--The term ``council'' means the Native 
        Hawaiian Interim Governing Council established under section 
        7(c)(2).
            (6) Indian program or service.--
                    (A) In general.--The term ``Indian program or 
                service'' means any federally funded or authorized 
                program or service provided to an Indian tribe (or 
                member of an Indian tribe) because of the status of the 
                members of the Indian tribe as Indians.
                    (B) Inclusions.--The term ``Indian program or 
                service'' includes a program or service provided by the 
                Bureau of Indian Affairs, the Indian Health Service, or 
                any other Federal agency.
            (7) Indian tribe.--The term ``Indian tribe'' has the 
        meaning given the term in section 4 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450b).
            (8) Indigenous, native people.--The term ``indigenous, 
        native people'' means the lineal descendants of the aboriginal, 
        indigenous, native people of the United States.
            (9) Interagency coordinating group.--The term ``Interagency 
        Coordinating Group'' means the Native Hawaiian Interagency 
        Coordinating Group established under section 6.
            (10) Native hawaiian.--
                    (A) In general.--Subject to subparagraph (B), for 
                the purpose of establishing the roll authorized under 
                section 7(c)(1) and before the reaffirmation of the 
                special political and legal relationship between the 
                United States and the Native Hawaiian governing entity, 
                the term ``Native Hawaiian'' means--
                            (i) an individual who is 1 of the 
                        indigenous, native people of Hawaii and who is 
                        a direct lineal descendant of the aboriginal, 
                        indigenous, native people who--
                                    (I) resided in the islands that now 
                                comprise the State of Hawaii on or 
                                before January 1, 1893; and
                                    (II) occupied and exercised 
                                sovereignty in the Hawaiian 
                                archipelago, including the area that 
                                now constitutes the State of Hawaii; or
                            (ii) an individual who is 1 of the 
                        indigenous, native people of Hawaii and who was 
                        eligible in 1921 for the programs authorized by 
                        the Hawaiian Homes Commission Act (42 Stat. 
                        108, chapter 42) or a direct lineal descendant 
                        of that individual.
                    (B) No effect on other definitions.--Nothing in 
                this paragraph affects the definition of the term 
                ``Native Hawaiian'' under any other Federal or State 
                law (including a regulation).
            (11) Native hawaiian governing entity.--The term ``Native 
        Hawaiian Governing Entity'' means the governing entity 
        organized by the Native Hawaiian people pursuant to this Act.
            (12) Native hawaiian program or service.--The term ``Native 
        Hawaiian program or service'' means any program or service 
        provided to Native Hawaiians because of their status as Native 
        Hawaiians.
            (13) Office.--The term ``Office'' means the United States 
        Office for Native Hawaiian Relations established by section 
        5(a).
            (14) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (15) Special political and legal relationship.--The term 
        ``special political and legal relationship'' shall refer, 
        except where differences are specifically indicated elsewhere 
        in the Act, to the type of and nature of relationship the 
        United States has with the several federally recognized Indian 
        tribes.

SEC. 4. UNITED STATES POLICY AND PURPOSE.

    (a) Policy.--The United States reaffirms that--
            (1) Native Hawaiians are a unique and distinct, indigenous, 
        native people with whom the United States has a special 
        political and legal relationship;
            (2) the United States has a special political and legal 
        relationship with the Native Hawaiian people which includes 
        promoting the welfare of Native Hawaiians;
            (3) Congress possesses the authority under the 
        Constitution, including but not limited to Article I, section 
        8, clause 3, to enact legislation to address the conditions of 
        Native Hawaiians and has exercised this authority through the 
        enactment of--
                    (A) the Hawaiian Homes Commission Act, 1920 (42 
                Stat. 108, chapter 42);
                    (B) the Act entitled ``An Act to provide for the 
                admission of the State of Hawaii into the Union'', 
                approved March 18, 1959 (Public Law 86-3, 73 Stat. 4); 
                and
                    (C) more than 150 other Federal laws addressing the 
                conditions of Native Hawaiians;
            (4) Native Hawaiians have--
                    (A) an inherent right to autonomy in their internal 
                affairs;
                    (B) an inherent right of self-determination and 
                self-governance;
                    (C) the right to reorganize a Native Hawaiian 
                governing entity; and
                    (D) the right to become economically self-
                sufficient; and
            (5) the United States shall continue to engage in a process 
        of reconciliation and political relations with the Native 
        Hawaiian people.
    (b) Purpose.--The purpose of this Act is to provide a process for 
the reorganization of the single Native Hawaiian governing entity and 
the reaffirmation of the special political and legal relationship 
between the United States and that Native Hawaiian governing entity for 
purposes of continuing a government-to-government relationship.

SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.

    (a) Establishment.--There is established within the Office of the 
Secretary, the United States Office for Native Hawaiian Relations.
    (b) Duties.--The Office shall--
            (1) continue the process of reconciliation with the Native 
        Hawaiian people in furtherance of the Apology Resolution;
            (2) upon the reaffirmation of the special political and 
        legal relationship between the single Native Hawaiian governing 
        entity and the United States, effectuate and coordinate the 
        special political and legal relationship between the Native 
        Hawaiian governing entity and the United States through the 
        Secretary, and with all other Federal agencies;
            (3) fully integrate the principle and practice of 
        meaningful, regular, and appropriate consultation with the 
        Native Hawaiian governing entity by providing timely notice to, 
        and consulting with, the Native Hawaiian people and the Native 
        Hawaiian governing entity before taking any actions that may 
        have the potential to significantly affect Native Hawaiian 
        resources, rights, or lands;
            (4) consult with the Interagency Coordinating Group, other 
        Federal agencies, and the State of Hawaii on policies, 
        practices, and proposed actions affecting Native Hawaiian 
        resources, rights, or lands; and
            (5) prepare and submit to the Committee on Indian Affairs 
        and the Committee on Energy and Natural Resources of the Senate 
        and the Committee on Resources of the House of Representatives 
        an annual report detailing the activities of the Interagency 
        Coordinating Group that are undertaken with respect to the 
        continuing process of reconciliation and to effect meaningful 
        consultation with the Native Hawaiian governing entity and 
        providing recommendations for any necessary changes to Federal 
        law or regulations promulgated under the authority of Federal 
        law.
    (c) Applicability to Department of Defense.--This section shall 
have no applicability to the Department of Defense or to any agency or 
component of the Department of Defense, but the Secretary of Defense 
may designate 1 or more officials as liaison to the Office.

SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.

    (a) Establishment.--In recognition that Federal programs authorized 
to address the conditions of Native Hawaiians are largely administered 
by Federal agencies other than the Department of the Interior, there is 
established an interagency coordinating group to be known as the 
``Native Hawaiian Interagency Coordinating Group''.
    (b) Composition.--The Interagency Coordinating Group shall be 
composed of officials, to be designated by the President, from--
            (1) each Federal agency that administers Native Hawaiian 
        programs, establishes or implements policies that affect Native 
        Hawaiians, or whose actions may significantly or uniquely 
        impact Native Hawaiian resources, rights, or lands; and
            (2) the Office.
    (c) Lead Agency.--
            (1) In general.--The Department of the Interior shall serve 
        as the lead agency of the Interagency Coordinating Group.
            (2) Meetings.--The Secretary shall convene meetings of the 
        Interagency Coordinating Group.
    (d) Duties.--The Interagency Coordinating Group shall--
            (1) coordinate Federal programs and policies that affect 
        Native Hawaiians or actions by any agency or agencies of the 
        Federal Government that may significantly or uniquely affect 
        Native Hawaiian resources, rights, or lands;
            (2) consult with the Native Hawaiian governing entity, 
        through the coordination referred to in section 6(d)(1), but 
        the consultation obligation established in this provision shall 
        apply only after the satisfaction of all of the conditions 
        referred to in section 7(c)(6); and
            (3) ensure the participation of each Federal agency in the 
        development of the report to Congress authorized in section 
        5(b)(5).
    (e) Applicability to Department of Defense.--This section shall 
have no applicability to the Department of Defense or to any agency or 
component of the Department of Defense, but the Secretary of Defense 
may designate 1 or more officials as liaison to the Interagency 
Coordinating Group.

SEC. 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.

    (a) Recognition of the Native Hawaiian Governing Entity.--The right 
of the Native Hawaiian people to reorganize the single Native Hawaiian 
governing entity to provide for their common welfare and to adopt 
appropriate organic governing documents is recognized by the United 
States.
    (b) Commission.--
            (1) In general.--There is authorized to be established a 
        Commission to be composed of 9 members for the purposes of--
                    (A) preparing and maintaining a roll of the adult 
                members of the Native Hawaiian community who elect to 
                participate in the reorganization of the single Native 
                Hawaiian governing entity; and
                    (B) certifying that the adult members of the Native 
                Hawaiian community proposed for inclusion on the roll 
                meet the definition of Native Hawaiian in section 
                3(10).
            (2) Membership.--
                    (A) Appointment.--
                            (i) In general.--Not later than 180 days 
                        after the date of enactment of this Act, the 
                        Secretary shall appoint the members of the 
                        Commission in accordance with subparagraph (B).
                            (ii) Consideration.--In making an 
                        appointment under clause (i), the Secretary may 
                        take into consideration a recommendation made 
                        by any Native Hawaiian organization.
                    (B) Requirements.--Each member of the Commission 
                shall demonstrate, as determined by the Secretary--
                            (i) not less than 10 years of experience in 
                        the study and determination of Native Hawaiian 
                        genealogy; and
                            (ii) an ability to read and translate into 
                        English documents written in the Hawaiian 
                        language.
                    (C) Vacancies.--A vacancy on the Commission--
                            (i) shall not affect the powers of the 
                        Commission; and
                            (ii) shall be filled in the same manner as 
                        the original appointment.
            (3) Expenses.--Each member of the Commission shall be 
        allowed travel expenses, including per diem in lieu of 
        subsistence, at rates authorized for employees of agencies 
        under subchapter I of chapter 57 of title 5, United States 
        Code, while away from their homes or regular places of business 
        in the performance of services for the Commission.
            (4) Duties.--The Commission shall--
                    (A) prepare and maintain a roll of the adult 
                members of the Native Hawaiian community who elect to 
                participate in the reorganization of the Native 
                Hawaiian governing entity; and
                    (B) certify that each of the adult members of the 
                Native Hawaiian community proposed for inclusion on the 
                roll meets the definition of Native Hawaiian in section 
                3(10).
            (5) Staff.--
                    (A) In general.--The Commission may, without regard 
                to the civil service laws (including regulations), 
                appoint and terminate an executive director and such 
                other additional personnel as are necessary to enable 
                the Commission to perform the duties of the Commission.
                    (B) Compensation.--
                            (i) In general.--Except as provided in 
                        clause (ii), the Commission may fix the 
                        compensation of the executive director and 
                        other personnel without regard to the 
                        provisions of chapter 51 and subchapter III of 
                        chapter 53 of title 5, United States Code, 
                        relating to classification of positions and 
                        General Schedule pay rates.
                            (ii) Maximum rate of pay.--The rate of pay 
                        for the executive director and other personnel 
                        shall not exceed the rate payable for level V 
                        of the Executive Schedule under section 5316 of 
                        title 5, United States Code.
            (6) Detail of federal government employees.--
                    (A) In general.--An employee of the Federal 
                Government may be detailed to the Commission without 
                reimbursement.
                    (B) Civil service status.--The detail of the 
                employee shall be without interruption or loss of civil 
                service status or privilege.
            (7) Procurement of temporary and intermittent services.--
        The Commission may procure temporary and intermittent services 
        in accordance with section 3109(b) of title 5, United States 
        Code, at rates for individuals that do not exceed the daily 
        equivalent of the annual rate of basic pay prescribed for level 
        V of the Executive Schedule under section 5316 of that title.
            (8) Expiration.--The Secretary shall dissolve the 
        Commission upon the reaffirmation of the special political and 
        legal relationship between the Native Hawaiian governing entity 
        and the United States.
    (c) Process for the Reorganization of the Native Hawaiian Governing 
Entity.--
            (1) Roll.--
                    (A) Contents.--The roll shall include the names of 
                the adult members of the Native Hawaiian community who 
                elect to participate in the reorganization of the 
                Native Hawaiian governing entity and are certified to 
                be Native Hawaiian as defined in section 3(10) by the 
                Commission.
                    (B) Formation of roll.--Each adult member of the 
                Native Hawaiian community who elects to participate in 
                the reorganization of the Native Hawaiian governing 
                entity shall submit to the Commission documentation in 
                the form established by the Commission that is 
                sufficient to enable the Commission to determine 
                whether the individual meets the definition of Native 
                Hawaiian in section 3(10).
                    (C) Documentation.--The Commission shall--
                            (i) identify the types of documentation 
                        that may be submitted to the Commission that 
                        would enable the Commission to determine 
                        whether an individual meets the definition of 
                        Native Hawaiian in section 3(10);
                            (ii) establish a standard format for the 
                        submission of documentation; and
                            (iii) publish information related to 
                        clauses (i) and (ii) in the Federal Register.
                    (D) Consultation.--In making determinations that 
                each of the adult members of the Native Hawaiian 
                community proposed for inclusion on the roll meets the 
                definition of Native Hawaiian in section 3(10), the 
                Commission may consult with Native Hawaiian 
                organizations, agencies of the State of Hawaii 
                including but not limited to the Department of Hawaiian 
                Home Lands, the Office of Hawaiian Affairs, and the 
                State Department of Health, and other entities with 
                expertise and experience in the determination of Native 
                Hawaiian ancestry and lineal descendancy.
                    (E) Certification and submittal of roll to 
                secretary.--The Commission shall--
                            (i) submit the roll containing the names of 
                        the adult members of the Native Hawaiian 
                        community who meet the definition of Native 
                        Hawaiian in section 3(10) to the Secretary 
                        within 2 years from the date on which the 
                        Commission is fully composed; and
                            (ii) certify to the Secretary that each of 
                        the adult members of the Native Hawaiian 
                        community proposed for inclusion on the roll 
                        meets the definition of Native Hawaiian in 
                        section 3(10).
                    (F) Publication.--Upon certification by the 
                Commission to the Secretary that those listed on the 
                roll meet the definition of Native Hawaiian in section 
                3(10), the Secretary shall publish the roll in the 
                Federal Register.
                    (G) Appeal.--The Secretary may establish a 
                mechanism for an appeal for any person whose name is 
                excluded from the roll who claims to meet the 
                definition of Native Hawaiian in section 3(10) and to 
                be 18 years of age or older.
                    (H) Publication; update.--The Secretary shall--
                            (i) publish the roll regardless of whether 
                        appeals are pending;
                            (ii) update the roll and the publication of 
                        the roll on the final disposition of any 
                        appeal; and
                            (iii) update the roll to include any Native 
                        Hawaiian who has attained the age of 18 and who 
                        has been certified by the Commission as meeting 
                        the definition of Native Hawaiian in section 
                        3(10) after the initial publication of the roll 
                        or after any subsequent publications of the 
                        roll.
                    (I) Failure to act.--If the Secretary fails to 
                publish the roll, not later than 90 days after the date 
                on which the roll is submitted to the Secretary, the 
                Commission shall publish the roll notwithstanding any 
                order or directive issued by the Secretary or any other 
                official of the Department of the Interior to the 
                contrary.
                    (J) Effect of publication.--The publication of the 
                initial and updated roll shall serve as the basis for 
                the eligibility of adult members of the Native Hawaiian 
                community whose names are listed on those rolls to 
                participate in the reorganization of the Native 
                Hawaiian governing entity.
            (2) Organization of the native hawaiian interim governing 
        council.--
                    (A) Organization.--The adult members of the Native 
                Hawaiian community listed on the roll published under 
                this section may--
                            (i) develop criteria for candidates to be 
                        elected to serve on the Native Hawaiian Interim 
                        Governing Council;
                            (ii) determine the structure of the 
                        Council; and
                            (iii) elect members from individuals listed 
                        on the roll published under this subsection to 
                        the Council.
                    (B) Powers.--
                            (i) In general.--The Council--
                                    (I) may represent those listed on 
                                the roll published under this section 
                                in the implementation of this Act; and
                                    (II) shall have no powers other 
                                than powers given to the Council under 
                                this Act.
                            (ii) Funding.--The Council may enter into a 
                        contract with, or obtain a grant from, any 
                        Federal or State agency to carry out clause 
                        (iii).
                            (iii) Activities.--
                                    (I) In general.--The Council may 
                                conduct a referendum among the adult 
                                members of the Native Hawaiian 
                                community listed on the roll published 
                                under this subsection for the purpose 
                                of determining the proposed elements of 
                                the organic governing documents of the 
                                Native Hawaiian governing entity, 
                                including but not limited to--
                                            (aa) the proposed criteria 
                                        for citizenship of the Native 
                                        Hawaiian governing entity;
                                            (bb) the proposed powers 
                                        and authorities to be exercised 
                                        by the Native Hawaiian 
                                        governing entity, as well as 
                                        the proposed privileges and 
                                        immunities of the Native 
                                        Hawaiian governing entity;
                                            (cc) the proposed civil 
                                        rights and protection of the 
                                        rights of the citizens of the 
                                        Native Hawaiian governing 
                                        entity and all persons affected 
                                        by the exercise of governmental 
                                        powers and authorities of the 
                                        Native Hawaiian governing 
                                        entity; and
                                            (dd) other issues 
                                        determined appropriate by the 
                                        Council.
                                    (II) Development of organic 
                                governing documents.--Based on the 
                                referendum, the Council may develop 
                                proposed organic governing documents 
                                for the Native Hawaiian governing 
                                entity.
                                    (III) Distribution.--The Council 
                                may distribute to all adult members of 
                                the Native Hawaiian community listed on 
                                the roll published under this 
                                subsection--
                                            (aa) a copy of the proposed 
                                        organic governing documents, as 
                                        drafted by the Council; and
                                            (bb) a brief impartial 
                                        description of the proposed 
                                        organic governing documents;
                                    (IV) Elections.--The Council may 
                                hold elections for the purpose of 
                                ratifying the proposed organic 
                                governing documents, and on 
                                certification of the organic governing 
                                documents by the Secretary in 
                                accordance with paragraph (4), hold 
                                elections of the officers of the Native 
                                Hawaiian governing entity pursuant to 
                                paragraph (5).
            (3) Submittal of organic governing documents.--Following 
        the reorganization of the Native Hawaiian governing entity and 
        the adoption of organic governing documents, the Council shall 
        submit the organic governing documents of the Native Hawaiian 
        governing entity to the Secretary.
            (4) Certifications.--
                    (A) In general.--Within the context of the future 
                negotiations to be conducted under the authority of 
                section 8(b)(1), and the subsequent actions by the 
                Congress and the State of Hawaii to enact legislation 
                to implement the agreements of the 3 governments, not 
                later than 90 days after the date on which the Council 
                submits the organic governing documents to the 
                Secretary, the Secretary shall certify that the organic 
                governing documents--
                            (i) establish the criteria for citizenship 
                        in the Native Hawaiian governing entity;
                            (ii) were adopted by a majority vote of the 
                        adult members of the Native Hawaiian community 
                        whose names are listed on the roll published by 
                        the Secretary;
                            (iii) provide authority for the Native 
                        Hawaiian governing entity to negotiate with 
                        Federal, State, and local governments, and 
                        other entities;
                            (iv) provide for the exercise of 
                        governmental authorities by the Native Hawaiian 
                        governing entity, including any authorities 
                        that may be delegated to the Native Hawaiian 
                        governing entity by the United States and the 
                        State of Hawaii following negotiations 
                        authorized in section 8(b)(1) and the enactment 
                        of legislation to implement the agreements of 
                        the 3 governments;
                            (v) prevent the sale, disposition, lease, 
                        or encumbrance of lands, interests in lands, or 
                        other assets of the Native Hawaiian governing 
                        entity without the consent of the Native 
                        Hawaiian governing entity;
                            (vi) provide for the protection of the 
                        civil rights of the citizens of the Native 
                        Hawaiian governing entity and all persons 
                        affected by the exercise of governmental powers 
                        and authorities by the Native Hawaiian 
                        governing entity; and
                            (vii) are consistent with applicable 
                        Federal law and the special political and legal 
                        relationship between the United States and the 
                        indigenous, native people of the United States; 
                        provided that the provisions of Public Law 103-
                        454, 25 U.S.C. 479a, shall not apply.
                    (B) Resubmission in case of noncompliance with the 
                requirements of subparagraph (a).--
                            (i) Resubmission by the secretary.--If the 
                        Secretary determines that the organic governing 
                        documents, or any part of the documents, do not 
                        meet all of the requirements set forth in 
                        subparagraph (A), the Secretary shall resubmit 
                        the organic governing documents to the Council, 
                        along with a justification for each of the 
                        Secretary's findings as to why the provisions 
                        are not in full compliance.
                            (ii) Amendment and resubmission of organic 
                        governing documents.--If the organic governing 
                        documents are resubmitted to the Council by the 
                        Secretary under clause (i), the Council shall--
                                    (I) amend the organic governing 
                                documents to ensure that the documents 
                                meet all the requirements set forth in 
                                subparagraph (A); and
                                    (II) resubmit the amended organic 
                                governing documents to the Secretary 
                                for certification in accordance with 
                                this paragraph.
                    (C) Certifications deemed made.--The certifications 
                under paragraph (4) shall be deemed to have been made 
                if the Secretary has not acted within 90 days after the 
                date on which the Council has submitted the organic 
                governing documents of the Native Hawaiian governing 
                entity to the Secretary.
            (5) Elections.--On completion of the certifications by the 
        Secretary under paragraph (4), the Council may hold elections 
        of the officers of the Native Hawaiian governing entity.
            (6) Reaffirmation.--Notwithstanding any other provision of 
        law, upon the certifications required under paragraph (4) and 
        the election of the officers of the Native Hawaiian governing 
        entity, the special political and legal relationship between 
        the United States and the Native Hawaiian governing entity is 
        hereby reaffirmed and the United States extends Federal 
        recognition to the Native Hawaiian governing entity as the 
        representative governing body of the Native Hawaiian people.

SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS; 
              CLAIMS.

    (a) Reaffirmation.--The delegation by the United States of 
authority to the State of Hawaii to address the conditions of the 
indigenous, native people of Hawaii contained in the Act entitled ``An 
Act to provide for the admission of the State of Hawaii into the 
Union'' approved March 18, 1959 (Public Law 86-3, 73 Stat. 4), is 
reaffirmed.
    (b) Negotiations.--
            (1) In general.--Upon the reaffirmation of the special 
        political and legal relationship between the United States and 
        the Native Hawaiian governing entity, the United States and the 
        State of Hawaii may enter into negotiations with the Native 
        Hawaiian governing entity designed to lead to an agreement 
        addressing such matters as--
                    (A) the transfer of lands, natural resources, and 
                other assets, and the protection of existing rights 
                related to such lands or resources;
                    (B) the exercise of governmental authority over any 
                transferred lands, natural resources, and other assets, 
                including land use;
                    (C) the exercise of civil and criminal 
                jurisdiction;
                    (D) the delegation of governmental powers and 
                authorities to the Native Hawaiian governing entity by 
                the United States and the State of Hawaii;
                    (E) any residual responsibilities of the United 
                States and the State of Hawaii; and
                    (F) grievances regarding assertions of historical 
                wrongs committed against Native Hawaiians by the United 
                States or by the State of Hawaii.
            (2) Amendments to existing laws.--Upon agreement on any 
        matter or matters negotiated with the United States, the State 
        of Hawaii, and the Native Hawaiian governing entity, the 
        parties are authorized to submit--
                    (A) to the Committee on Indian Affairs of the 
                Senate, the Committee on Energy and Natural Resources 
                of the Senate, and the Committee on Resources of the 
                House of Representatives, recommendations for proposed 
                amendments to Federal law that will enable the 
                implementation of agreements reached between the 3 
                governments; and
                    (B) to the Governor and the legislature of the 
                State of Hawaii, recommendations for proposed 
                amendments to State law that will enable the 
                implementation of agreements reached between the 3 
                governments.
            (3) Governmental authority and power.--Any governmental 
        authority or power to be exercised by the Native Hawaiian 
        governing entity which is currently exercised by the State or 
        Federal Governments shall be exercised by the Native Hawaiian 
        governing entity only as agreed to in negotiations pursuant to 
        section 8(b)(1) of this Act and beginning on the date on which 
        legislation to implement such agreement has been enacted by the 
        United States Congress, when applicable, and by the State of 
        Hawaii, when applicable. This includes any required 
        modifications to the Hawaii State Constitution in accordance 
        with the Hawaii Revised Statutes.
    (c) Claims.--
            (1) Disclaimers.--Nothing in this Act--
                    (A) creates a cause of action against the United 
                States or any other entity or person;
                    (B) alters existing law, including existing case 
                law, regarding obligations on the part of the United 
                States or the State of Hawaii with regard to Native 
                Hawaiians or any Native Hawaiian entity;
                    (C) creates obligations that did not exist in any 
                source of Federal law prior to the date of enactment of 
                this Act; or
                    (D) establishes authority for the recognition of 
                Native Hawaiian groups other than the single Native 
                Hawaiian Governing Entity.
            (2) Federal sovereign immunity.--
                    (A) Specific purpose.--Nothing in this Act is 
                intended to create or allow to be maintained in any 
                court any potential breach-of-trust actions, land 
                claims, resource-protection or resource-management 
                claims, or similar types of claims brought by or on 
                behalf of Native Hawaiians or the Native Hawaiian 
                governing entity for equitable, monetary, or 
                Administrative Procedure Act-based relief against the 
                United States or the State of Hawaii, whether or not 
                such claims specifically assert an alleged breach of 
                trust, call for an accounting, seek declaratory relief, 
                or seek the recovery of or compensation for lands once 
                held by Native Hawaiians.
                    (B) Establishment and retention of sovereign 
                immunity.--To effectuate the ends expressed in section 
                8(c)(1) and 8(c)(2)(A), and notwithstanding any other 
                provision of Federal law, the United States retains its 
                sovereign immunity to any claim that existed prior to 
                the enactment of this Act (including, but not limited 
                to, any claim based in whole or in part on past 
                events), and which could be brought by Native Hawaiians 
                or any Native Hawaiian governing entity. Nor shall any 
                preexisting waiver of sovereign immunity (including, 
                but not limited to, waivers set forth in chapter 7 of 
                part I of title 5, United States Code, and sections 
                1505 and 2409a of title 28, United States Code) be 
                applicable to any such claims. This complete retention 
                or reclaiming of sovereign immunity also applies to 
                every claim that might attempt to rely on this Act for 
                support, without regard to the source of law under 
                which any such claim might be asserted.
                    (C) Effect.--It is the general effect of section 
                8(c)(2)(B) that any claims that may already have 
                accrued and might be brought against the United States, 
                including any claims of the types specifically referred 
                to in section 8(c)(2)(A), along with both claims of a 
                similar nature and claims arising out of the same 
                nucleus of operative facts as could give rise to claims 
                of the specific types referred to in section 
                8(c)(2)(A), be rendered nonjusticiable in suits brought 
                by plaintiffs other than the Federal Government.
            (3) State sovereignty immunity.--
                    (A) Notwithstanding any other provision of Federal 
                law, the State retains its sovereign immunity, unless 
                waived in accord with State law, to any claim, 
                established under any source of law, regarding Native 
                Hawaiians, that existed prior to the enactment of this 
                Act.
                    (B) Nothing in this Act shall be construed to 
                constitute an override pursuant to section 5 of the 
                Fourteenth Amendment of State sovereign immunity held 
                under the Eleventh Amendment.

SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.

    (a) Indian Gaming Regulatory Act.--
            (1) The Native Hawaiian governing entity and Native 
        Hawaiians may not conduct gaming activities as a matter of 
        claimed inherent authority or under the authority of any 
        Federal law, including the Indian Gaming Regulatory Act (25 
        U.S.C. 2701 et seq.) or under any regulations thereunder 
        promulgated by the Secretary or the National Indian Gaming 
        Commission.
            (2) The foregoing prohibition in section 9(a)(1) on the use 
        of Indian Gaming Regulatory Act and inherent authority to game 
        apply regardless of whether gaming by Native Hawaiians or the 
        Native Hawaiian governing entity would be located on land 
        within the State of Hawaii or within any other State or 
        Territory of the United States.
    (b) Taking Land Into Trust.--Notwithstanding any other provision of 
law, including but not limited to part 151 of title 25, Code of Federal 
Regulations, the Secretary shall not take land into trust on behalf of 
individuals or groups claiming to be Native Hawaiian or on behalf of 
the native Hawaiian governing entity.
    (c) Real Property Transfers.--The Indian Trade and Intercourse Act 
(25 U.S.C. 177), does not, has never, and will not apply after 
enactment to lands or lands transfers present, past, or future, in the 
State of Hawaii. If despite the expression of this intent herein, a 
court were to construe the Trade and Intercourse Act to apply to lands 
or land transfers in Hawaii before the date of enactment of this Act, 
then any transfer of land or natural resources located within the State 
of Hawaii prior to the date of enactment of this Act, by or on behalf 
of the Native Hawaiian people, or individual Native Hawaiians, shall be 
deemed to have been made in accordance with the Indian Trade and 
Intercourse Act and any other provision of Federal law that 
specifically applies to transfers of land or natural resources from, 
by, or on behalf of an Indian tribe, Native Hawaiians, or Native 
Hawaiian entities.
    (d) Single Governing Entity.--This Act will result in the 
recognition of the single Native Hawaiian governing entity. Additional 
Native Hawaiian groups shall not be eligible for acknowledgment 
pursuant to the Federal Acknowledgment Process set forth in part 83 of 
title 25 of the Code of Federal Regulations or any other administrative 
acknowledgment or recognition process.
    (e) Jurisdiction.--Nothing in this Act alters the civil or criminal 
jurisdiction of the United States or the State of Hawaii over lands and 
persons within the State of Hawaii. The status quo of Federal and State 
jurisdiction can change only as a result of further legislation, if 
any, enacted after the conclusion, in relevant part, of the negotiation 
process established in section 8(b).
    (f) Indian Programs and Services.--Notwithstanding section 7(c)(6), 
because of the eligibility of the Native Hawaiian governing entity and 
its citizens for Native Hawaiian programs and services in accordance 
with subsection (g), nothing in this Act provides an authorization for 
eligibility to participate in any Indian program or service to any 
individual or entity not otherwise eligible for the program or service 
under applicable Federal law.
    (g) Native Hawaiian Programs and Services.--The Native Hawaiian 
governing entity and its citizens shall be eligible for Native Hawaiian 
programs and services to the extent and in the manner provided by other 
applicable laws.

SEC. 10. SEVERABILITY.

    If any section or provision of this Act is held invalid, it is the 
intent of Congress that the remaining sections or provisions shall 
continue in full force and effect.

SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as are necessary 
to carry out this Act.
                                                 Union Calendar No. 241

111th CONGRESS

  2d Session

                               H. R. 2314

                          [Report No. 111-412]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                           February 22, 2010

Committed to the Committee of the Whole House on the State of the Union 
                       and ordered to be printed
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