89–008 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–413 

PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 2314) TO EXPRESS 

THE POLICY OF THE UNITED STATES REGARDING THE UNITED STATES 

RELATIONSHIP WITH NATIVE HAWAIIANS AND TO PROVIDE A PROCESS 

FOR THE RECOGNITION BY THE UNITED STATES OF THE NATIVE HAWAIIAN GOVERNING ENTITY 

FEBRUARY 22, 2010.—Referred to the House Calendar and ordered to be printed 

Mr. POLIS, from the Committee on Rules, 

submitted the following 

R E P O R T 

[To accompany H. Res. 1083] 

The Committee on Rules, having had under consideration House 

Resolution 1083, by a nonrecord vote, report the same to the House 

with the recommendation that the resolution be adopted. 

SUMMARY OF PROVISIONS OF THE RESOLUTION

The resolution provides for consideration of H.R. 2314, the ‘‘Native Hawaiian Government Reorganization Act of 2009’’ under a 

structured rule providing one hour of general debate in the House 

equally divided and controlled by the chairman and ranking minority member of the Committee on Natural Resources. The resolution 

waives all points of order against consideration of the bill except 

for clauses 9 and 10 of rule XXI. The resolution provides that the 

bill shall be considered as read. The resolution waives all points of 

order against provisions of the bill. This waiver does not affect the 

point of order available under clause 9 of rule XXI (regarding earmark disclosure). 

The resolution makes in order the amendment in the nature of 

a substitute printed in part A of this report, if offered by Representative Abercrombie or his designee, which shall be separately 

debatable for 30 minutes equally divided and controlled by the proponent and an opponent. The resolution waives all points of order 

against the amendment in the nature of a substitute in part A except for clauses 9 and 10 of rule XXI. The resolution makes in 

order the amendments printed in part B of this report to the 

amendment in the nature of a substitute printed in part A of this 

report. The amendments may be offered only by a Member designated in the report, shall be in order without intervention of any 

point of order except those arising under clause 10 of rule XXI, 


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shall be considered as read, and shall be separately debatable for 

10 minutes equally divided and controlled by the proponent and an 

opponent. The resolution waives all points of order against the 

amendments in part B except for clause 10 of rule XXI. The resolution provides that during consideration of an amendment printed 

in part B of the report of the Committee on Rules accompanying 

this resolution, the Chair may postpone the question of adoption as 

though under clause 8 of rule XX. Finally, the resolution provides 

one motion to recommit with or without instructions. 

EXPLANATION OF WAIVERS

The waiver of all points of order against consideration of the bill 

(except those arising under clause 9 or 10 of rule XXI) includes a 

waiver of clause 4(a) of rule XIII (regarding availability of committee report). Although the resolution waives all points of order 

against the bill the Committee is not aware of any points of order. 

The waiver of all points of order is prophylactic. 

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE IN

PART A TO BE MADE IN ORDER

1. Abercrombie: Amendment in the Nature of a Substitute (ANS). 

The substitute addresses several issues raised by the Attorney 

General of the State of Hawaii and others. In particular the ANS 

clarifies the definition of ‘‘Native Hawaiian’’ to ensure that the Native Hawaiian governing entity is a distinctly native community. 

While recognizing and affirming the sovereign immunity of the Native Hawaiian governing entity, the ANS expressly states the Act 

does not alter the sovereign immunity of the United States or the 

State of Hawaii allowing for negotiations. The ANS further clarifies 

that, pending negotiations and subsequent implementation legislation the following will occur: there will be no ‘‘Indian Country’’ 

within Hawaii; the United States will not take land into trust, nor 

restrict alienability of land owned by the Native Hawaiian governing entity; the governing entity may not exercise certain powers 

and authorities such as jurisdiction over non Native Hawaiian individuals without their consent; and the State of Hawaii will retain 

regulatory and taxation authority over Native Hawaiians and the 

Native Hawaiian governing entity. (30 minutes) 

SUMMARY OF THE AMENDMENTS IN PART B, TO THE AMENDMENT IN

THE NATURE OF A SUBSTITUTE IN PART A, TO BE MADE IN ORDER

1. Hastings (WA): The amendment requires that the voters of 

Hawaii approve the governing documents for the Native Hawaiian 

governing entity before federal recognition becomes operative. (10 

minutes) 

2. Flake: The amendment states that nothing in this Act shall relieve a Native Hawaiian governing authority from complying with 

the equal protection clause of the 14th amendment to the United 

States Constitution. (10 minutes) 

PART A—TEXT OF THE AMENDMENT IN THE NATURE OF A 

SUBSTITUTE TO BE MADE IN ORDER 

Strike all after the enacting clause and insert the following: 


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SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Native Hawaiian Government Reorganization Act of 2010’’. 

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 and the Supreme Court has held that under the 

Indian Commerce, Treaty, Supremacy, and Property Clauses, 

and the War Powers, Congress may exercise that power to rationally promote the welfare of the native peoples of the United 

States so long as the native people are a ‘‘distinctly native community’’; 

(2) Native Hawaiians, the native people of the Hawaiian archipelago that is now part of the United States, are 1 of the 

indigenous, native peoples of the United States, and the Native 

Hawaiian people are a distinctly native community; 

(3) the United States has a special political and legal relationship with, and has long enacted legislation to promote the 

welfare of, the native peoples of the United States, including 

the Native Hawaiian people; 

(4) under the authority of the Constitution, the United 

States concluded a number of treaties with the Kingdom of Hawaii, and from 1826 until 1893, the United States— 

(A) recognized the sovereignty of the Kingdom of Hawaii 

as a nation; 

(B) accorded full diplomatic recognition to the Kingdom 

of Hawaii; and 

(C) entered into treaties and conventions of peace, 

friendship and commerce with the Kingdom of Hawaii to 

govern trade, 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 in trust to better address the conditions of Native Hawaiians in the Federal territory that later 

became the State of Hawaii and in enacting the Hawaiian 

Homes Commission Act, 1920, Congress acknowledged the Native Hawaiian people as a native people of the United States, 

as evidenced by the Committee Report, which notes that Congress relied on the Indian affairs power and the War Powers, 

including the power to make peace; 

(6) by setting aside 203,500 acres of land in trust for Native 

Hawaiian homesteads and farms, the Hawaiian Homes Commission Act, 1920, assists the members of the Native Hawaiian 

community in maintaining distinctly native communities 

throughout the State of Hawaii; 

(7) approximately 9,800 Native Hawaiian families reside on 

the Hawaiian Home Lands, and approximately 25,000 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 delegated the authority and responsibility to administer the Hawaiian Homes 


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Commission Act, 1920, lands in trust for Native Hawaiians 

and established a new public trust (commonly known as the 

‘‘ceded lands trust’’), for 5 purposes, 1 of which is the betterment of the conditions of Native Hawaiians, and Congress 

thereby reaffirmed its recognition of the Native Hawaiians as 

a distinctly native community with a direct lineal and historical succession to the aboriginal, indigenous people of Hawaii; 

(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 important native land reserves and resources for the Native Hawaiian community to maintain the practice of Native 

Hawaiian culture, language, and traditions, and for the continuity, survival, and economic self-sufficiency of the Native 

Hawaiian people as a distinctly native political community; 

(11) Native Hawaiians continue to maintain other distinctly 

native areas in Hawaii, including native lands that date back 

to the ali‘i and kuleana lands reserved under the Kingdom of 

Hawaii; 

(12) through the Sovereign Council of Hawaiian Homelands 

Assembly and Native Hawaiian homestead associations, Native 

Hawaiian civic associations, charitable trusts established by 

the Native Hawaiian ali‘i, nonprofit native service providers 

and other community associations, the Native Hawaiian people 

have actively maintained native traditions and customary usages throughout the Native Hawaiian community and the Federal and State courts have continuously recognized the right of 

the Native Hawaiian people to engage in certain customary 

practices and usages on public lands; 

(13) on November 23, 1993, public law 103–150 (107 Stat. 

1510) (commonly known as the ‘‘Apology Resolution’’) was enacted into law, extending an apology to Native Hawaiians on 

behalf of the people of the United States for the United States’ 

role in the overthrow of the Kingdom of Hawaii; 

(14) 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; 

(15)(A) the Apology Resolution expresses the commitment of 

Congress and the President— 

(i) to acknowledge the ramifications of the overthrow of 

the Kingdom of Hawaii; and 

(ii) to support reconciliation efforts between the United 

States and Native Hawaiians; 


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(B) Congress established the Office of Hawaiian Relations 

within the Department of the Interior with 1 of its purposes 

being to consult with Native Hawaiians on the reconciliation 

process; and 

(C) the United States has the duty to reconcile and reaffirm 

its friendship with the Native Hawaiian people because, among 

other things, the United States Minister and United States 

naval forces participated in the overthrow of the Kingdom of 

Hawaii; 

(16)(A) despite the overthrow of the Government of the Kingdom of Hawaii, Native Hawaiians have continued to maintain 

their separate identity as a single distinctly native political 

community through cultural, social, and political institutions, 

and to give expression to their rights as native people to selfdetermination, self-governance, and economic self-sufficiency; 

and 

(B) there is clear continuity between the aboriginal, indigenous, native people of the Kingdom of Hawaii and their successors, the Native Hawaiian people today; 

(17) 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; 

(18) Native Hawaiian people 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; 

(19) 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; 

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ent rights as a distinct, indigenous, native community to reorganize a single unified Native Hawaiian governing entity for 

the purpose of giving expression to their rights as a native people to self-determination and self-governance; 

(21) 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 an indigenous, 

distinctly 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; 

(22) 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; 

(23) the United States has continually recognized and reaffirmed that— 

(A) Native Hawaiians have a direct genealogical, cultural, historic, and land-based connection to their forebears, the aboriginal, indigenous, native people who exercised original 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 native people of 

a prior-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 

(24) 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 


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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 a 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) 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. 

(3) COMMISSION.—The term ‘‘Commission’’ means the Commission established under section 8(b). 

(4) COUNCIL.—The term ‘‘Council’’ means the Native Hawaiian Interim Governing Council established under section 

8(c)(2). 

(5) 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. 

(6) 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). 

(7) INDIGENOUS, NATIVE PEOPLE.—The term ‘‘indigenous, native people’’ means the lineal descendants of the aboriginal, indigenous, native people of the United States. 

(8) INTERAGENCY COORDINATING GROUP.—The term ‘‘Interagency Coordinating Group’’ means the Native Hawaiian Interagency Coordinating Group established under section 6. 

(9) NATIVE HAWAIIAN GOVERNING ENTITY.—The term ‘‘Native 

Hawaiian governing entity’’ means the governing entity organized pursuant to this Act by the qualified Native Hawaiian 

constituents. 

(10) NATIVE HAWAIIAN MEMBERSHIP ORGANIZATION.—The 

term ‘‘Native Hawaiian membership organization’’ means an 

organization that— 

(A) serves and represents the interests of Native Hawaiians, has as a primary and stated purpose the provision of 

services to Native Hawaiians, and has expertise in Native 

Hawaiian affairs; 

(B) has leaders who are elected democratically, or selected through traditional Native leadership practices, by 

members of the Native Hawaiian community; 


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(C) advances the cause of Native Hawaiians culturally, 

socially, economically, or politically; 

(D) is a membership organization or association; and 

(E) has an accurate and reliable list of Native Hawaiian 

members. 

(11) OFFICE.—The term ‘‘Office’’ means the United States Office of Hawaiian Relations established by section 5(a). 

(12) QUALIFIED NATIVE HAWAIIAN CONSTITUENT.—For the 

purposes of establishing the roll authorized under section 8, 

and prior to the recognition by the United States of the Native 

Hawaiian governing entity, the term ‘‘qualified Native Hawaiian constituent’’ means an individual who the Commission determines has satisfied the following criteria and who makes a 

written statement certifying that he or she 

(A) is— 

(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, 1920 (42 Stat. 108, chapter 42), or a direct 

lineal descendant of that individual; 

(B) wishes to participate in the reorganization of the Native Hawaiian governing entity; 

(C) is 18 years of age or older; 

(D) is a citizen of the United States; and 

(E) maintains a significant cultural, social, or civic connection to the Native Hawaiian community, as evidenced 

by satisfying 2 or more of the following 10 criteria: 

(i) Resides in the State of Hawaii. 

(ii) Resides outside the State of Hawaii and— 

(I)(aa) currently serves or served as (or has a 

parent or spouse who currently serves or served 

as) a member of the Armed Forces or as an employee of the Federal Government; and 

(bb) resided in the State of Hawaii prior to the 

time he or she (or such parent or spouse) left the 

State of Hawaii to serve as a member of the 

Armed Forces or as an employee of the Federal 

Government; or 

(II)(aa) currently is or was enrolled (or has a 

parent or spouse who currently is or was enrolled) 

in an accredited institution of higher education 

outside the State of Hawaii; and 

(bb) resided in the State of Hawaii prior to the 

time he or she (or such parent or spouse) left the 

State of Hawaii to attend such institution. 

(iii)(I) Is or was eligible to be a beneficiary of the 

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sion Act, 1920 (42 Stat. 108, chapter 42), and resides 

or resided on land set aside as ‘‘Hawaiian home 

lands’’, as defined in such Act; or 

(II) Is a child or grandchild of an individual who is 

or was eligible to be a beneficiary of the programs authorized by such Act and who resides or resided on 

land set aside as ‘‘Hawaiian home lands’’, as defined 

in such Act. 

(iv) Is or was eligible to be a beneficiary of the programs authorized by the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42). 

(v) Is a child or grandchild of an individual who is 

or was eligible to be a beneficiary of the programs authorized by the Hawaiian Homes Commission Act, 

1920 (42 Stat. 108, chapter 42). 

(vi) Resides on or has an ownership interest in, or 

has a parent or grandparent who resides on or has an 

ownership interest in, ‘‘kuleana land’’ that is owned in 

whole or in part by a person who, according to a genealogy verification by the Office of Hawaiian Affairs or 

by court order, is a lineal descendant of the person or 

persons who received the original title to such 

‘‘kuleana land’’, defined as lands granted to native tenants pursuant to Haw. L. 1850, p. 202, entitled ‘‘An 

Act Confirming Certain Resolutions of the King and 

Privy Council Passed on the 21st day of December, 

A.D. 1849, Granting to the Common People Allodial 

Titles for Their Own Lands and House Lots, and Certain Other Privileges’’, as amended by Haw. L. 1851, 

p. 98, entitled ‘‘An Act to Amend An Act Granting to 

the Common People Allodial Titles for Their Own 

Lands and House Lots, and Certain Other Privileges’’ 

and as further amended by any subsequent legislation. 

(vii) Is, or is the child or grandchild of, an individual 

who has been or was a student for at least 1 school 

year at a school or program taught through the medium of the hawaiian language under section 302H–6, 

Hawaii Revised Statutes, or at a school founded and 

operated primarily or exclusively for the benefit of Native Hawaiians. 

(viii) Has been a member since September 30, 2009, 

of at least 1 Native Hawaiian membership organization. 

(ix) Has been a member since September 30, 2009, 

of at least 2 Native Hawaiian membership organizations. 

(x) Is regarded as Native Hawaiian and whose 

mother or father is (or if deceased, was) regarded as 

Native Hawaiian by the Native Hawaiian community, 

as evidenced by sworn affidavits from two or more 

qualified Native Hawaiian constituents certified by the 

Commission as possessing expertise in the social, cultural, and civic affairs of the Native Hawaiian community. 


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(13) SECRETARY.—The term ‘‘Secretary’’ means the Secretary 

of the Interior. 

(14) 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)(A) Congress possesses and hereby exercises the authority 

under the Constitution, including but not limited to Article I, 

Section 8, Clause 3, to enact legislation to better the conditions 

of Native Hawaiians and has exercised this authority through 

the enactment of— 

(i) the Hawaiian Homes Commission Act, 1920 (42 Stat. 

108, chapter 42); 

(ii) 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 

(iii) more than 150 other Federal laws addressing the 

conditions of Native Hawaiians; 

(B) other sources of authority under the Constitution for legislation on behalf of the indigenous, native peoples of the 

United States, including Native Hawaiians, include but are not 

limited to the Property, Treaty, and Supremacy Clauses, War 

Powers, and the Fourteenth Amendment, and Congress hereby 

relies on those powers in enacting this legislation; and 

(C) the Constitution’s original Apportionment Clause and the 

14th Amendment Citizenship and amended Apportionment 

Clauses also acknowledge the propriety of legislation on behalf 

of the native peoples of the United States, including 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. 


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SEC. 5. UNITED STATES OFFICE OF HAWAIIAN RELATIONS. 

(a) ESTABLISHMENT.—There is established within the Office of 

the Secretary the United States Office of 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 government-to-government 

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) provide timely notice to, and consult with, the Native Hawaiian governing entity before taking any actions that may 

have the potential to significantly affect Native Hawaiian resources, rights, or lands; 

(4) work 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 Natural 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 may provide 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 whose actions may significantly or 

uniquely impact Native Hawaiian programs, resources, rights, 

or lands; and 

(2) the Office. 

(c) LEAD AGENCY.— 

(1) IN GENERAL.—The Department of the Interior and the 

White House Office of Intergovernmental Affairs shall serve as 

the leaders of the Interagency Coordinating Group. 

(2) MEETINGS.—The Secretary shall convene meetings of the 

Interagency Coordinating Group. 

(d) DUTIES.—The Interagency Coordinating Group shall— 


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(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 paragraph (1), but the 

consultation obligation established in this provision shall apply 

only after the satisfaction of all of the conditions referred to in 

section 8(c)(8); 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. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE. 

The Attorney General shall designate an appropriate official 

within the Department of Justice to assist the Office in the implementation and protection of the rights of Native Hawaiians and 

their political and legal relationship with the United States, and 

upon the recognition of the Native Hawaiian governing entity as 

provided for in section 8, in the implementation and protection of 

the rights of the Native Hawaiian governing entity and its political 

and legal relationship with the United States. 

SEC. 8. PROCESS FOR REORGANIZATION OF NATIVE HAWAIIAN GOVERNING ENTITY AND REAFFIRMATION OF SPECIAL POLITICAL AND LEGAL RELATIONSHIP BETWEEN UNITED 

STATES AND NATIVE HAWAIIAN GOVERNING ENTITY. 

(a) RECOGNITION OF NATIVE HAWAIIAN GOVERNING ENTITY.—The 

right of the qualified Native Hawaiian constituents 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 qualified Native 

Hawaiian constituents; and 

(B) certifying that the individuals on the roll of qualified 

Native Hawaiian constituents meet the definition of qualified Native Hawaiian constituent set forth in section 3. 

(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 membership organization or other entity with exVerDate Nov 24 2008 05:16 Feb 23, 2010 Jkt 089008 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR413.XXX HR413

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pertise and experience in the determination of Native 

Hawaiian ancestry and lineal descendancy. 

(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 (traditional cultural experience shall be given due consideration); 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 qualified Native Hawaiian constituents as set forth in subsection (c); and 

(B) certify that the individuals on the roll of qualified 

Native Hawaiian constituents meet the definition of that 

term as set forth in section 3. 

(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 SERV- ICES.—The Commission may procure temporary and intermittent services in accordance with section 3109(b) of title 5, 


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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 REORGANIZATION OF NATIVE HAWAIIAN GOV- ERNING ENTITY.— (1) ROLL.— (A) CONTENTS.—The roll shall include the names of the 

qualified Native Hawaiian constituents who are certified 

by the Commission to be qualified Native Hawaiian constituents, as defined in section 3. 

(B) FORMATION OF ROLL.—Each individual claiming to be 

a qualified Native Hawaiian constituent 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 set forth in section 3; provided that an individual presenting evidence that he or she satisfies the definition in 

Section 2 of Public Law 103–150 shall be presumed to 

meet the requirement of section 3(12)(A)(i). 

(C) DOCUMENTATION.—The Commission shall— 

(i)(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 qualified Native Hawaiian constituent 

set forth in section 3. 

(II) recognize an individual’s identification of lineal 

ancestors on the 1890 Census by the Kingdom of Hawaii as a reliable indicia of lineal descent from the aboriginal, indigenous, native people who resided in the 

islands that now comprise the State of Hawaii on or 

before January 1, 1893; and 

(III) permit elderly Native Hawaiians and other 

qualified Native Hawaiian constituents lacking birth 

certificates or other documentation due to birth on Hawaiian Home Lands or other similar circumstances to 

establish lineal descent by sworn affidavits from 2 or 

more qualified Native Hawaiian constituents; 

(ii) establish a standard format for the submission of 

documentation and a process to ensure veracity; and 

(iii) publish information related to clauses (i) and (ii) 

in the Federal Register. 

(D) CONSULTATION.—In making determinations that 

each individual proposed for inclusion on the roll of qualified Native Hawaiian constituents meets the definition of 

qualified Native Hawaiian constituent in section 3, the 

Commission may consult with bona fide Native Hawaiian 

membership 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 


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and experience in the determination of Native Hawaiian 

ancestry and lineal descendancy. 

(E) NOTIFICATION.—The Commission shall— 

(i) inform an individual whether they have been 

deemed by the Commission a qualified Native Hawaiian constituent; and 

(ii) inform an individual of a right to appeal the decision if deemed not to be a qualified Native Hawaiian 

constituent. 

(F) CERTIFICATION AND SUBMITTAL OF ROLL TO SEC- RETARY.—The Commission shall— 

(i) submit the roll containing the names of those individuals who meet the definition of qualified Native 

Hawaiian constituent in section 3 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 qualified 

Native Hawaiian constituents proposed for inclusion 

on the roll meets the definition set forth in section 3. 

(G) PUBLICATION.—Upon certification by the Commission 

to the Secretary that those listed on the roll meet the definition of qualified Native Hawaiian constituent set forth in 

section 3, the Commission shall publish the notice of the 

certification of the roll in the Federal Register, notwithstanding pending appeals pursuant to subparagraph (H). 

(H) APPEAL.—The Secretary, in consultation with the 

Commission, shall establish a mechanism for an administrative appeal for any person whose name is excluded from 

the roll who claims to meet the definition of qualified Native Hawaiian constituent in section 3. 

(I) PUBLICATION; UPDATE.—The Commission shall— 

(i) publish the notice of the certification of the roll 

regardless of whether appeals are pending; 

(ii) update the roll and provide notice of the updated 

roll on the final disposition of any appeal; 

(iii) update the roll to include any person who has 

been certified by the Commission as meeting the definition of qualified Native Hawaiian constituent in section 3 after the initial publication of the roll or after 

any subsequent publications of the roll; and 

(iv) provide a copy of the roll and any updated rolls 

to the Council. 

(J) EFFECT OF PUBLICATION.—The publication of the initial and updated roll shall serve as the basis for the eligibility of qualified Native Hawaiian constituents whose 

names are listed on those rolls to participate in the reorganization of the Native Hawaiian governing entity. 

(2) ORGANIZATION OF COUNCIL.— 

(A) ORGANIZATION.—The Commission, in consultation 

with the Secretary, shall hold a minimum of 3 meetings, 

and each meeting shall be at least 2 working days, of the 

qualified Native Hawaiian constituents listed on the roll 

established under this section— 

(i) to develop criteria for candidates to be elected to 

serve on the Council; 


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(ii) to determine the structure of the Council, including the number of Council members; and 

(iii) to elect members from individuals listed on the 

roll established under this subsection to the Council. 

(B) POWERS.— (i) IN GENERAL.—The Council— 

(I) shall represent those listed on the roll established 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 shall conduct, 

among the qualified Native Hawaiian constituents 

listed on the roll established under this subsection, a referendum 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 future membership in the Native Hawaiian governing entity, provided that membership is voluntary 

and can be relinquished; 

(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, including the rights protected 

under section 202 of the Indian Civil Rights 

Act of 1968 (25 U.S.C. 1302); 

(dd) the protection and preservation of the 

rights vested on the date of enactment of this 

Act of those Native Hawaiians who are eligible to reside on the Hawaiian homelands 

under the authority of the Hawaiian Homes 

Commission Act, 1920 (42 Stat. 108, chapter 

42); and 

(ee) other issues determined appropriate by 

the Council. 

(II) DEVELOPMENT OF ORGANIC GOVERNING DOC- UMENTS.—Based on the referendum, the Council 

shall develop proposed organic governing documents for the Native Hawaiian governing entity 

and may seek technical assistance from the Secretary on the draft organic governing documents 

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ments comply with this Act and other Federal 

law. 

(III) DISTRIBUTION.—The Council shall publish 

to all qualified Native Hawaiian constituents of 

the Native Hawaiian governing entity listed on 

the roll published under this subsection notice of 

the availability of— 

(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.— (aa) IN GENERAL.—Not sooner than 180 

days after the proposed organic governing 

documents are drafted and distributed, the 

Council, with the assistance of the Secretary, 

shall hold elections for the purpose of ratifying the proposed organic governing documents. 

(bb) PURPOSE.—The Council, with the assistance of the Secretary, shall hold the election for the purpose of ratifying the proposed 

organic governing documents 60 days after 

publishing notice of an election. 

(cc) OFFICERS.—On certification of the organic governing documents by the Secretary 

in accordance with paragraph (4), the Council, 

with the assistance of the Secretary, shall 

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 

9(c)(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 180 days, 

which may be extended an additional 90 days if the Secretary deems necessary, after the date on which the Council submits the organic governing documents to the Secretary, the Secretary shall certify or decline to certify that 

the organic governing documents— 

(i) establish the criteria for membership in the Native Hawaiian governing entity and provide that membership is voluntary and can be relinquished; 

(ii) were adopted by a majority vote of those qualified Native Hawaiian constituents whose names are 

listed on the roll published by the Secretary and who 

voted in the election; 


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(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 inherent and other 

appropriate governmental authorities by the Native 

Hawaiian governing entity; 

(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, including the rights protected 

under section 202 of the Indian Civil Rights Act of 

1968 (25 U.S.C. 1302); 

(vii) provide for the protection and preservation of 

the rights vested on the date of enactment of this Act 

of those Native Hawaiians who are eligible to reside 

on the Hawaiian homelands under the authority of the 

Hawaiian Homes Commission Act, 1920 (42 Stat. 108, 

chapter 42); and 

(viii) are consistent with applicable Federal law. 

(B) RESUBMISSION IN CASE OF NONCOMPLIANCE.— 

(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 this paragraph shall be deemed to have been made 

if the Secretary has not acted within 180 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, with the assistance of the Secretary, shall hold elections of the officers of the 

Native Hawaiian governing entity. 


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(6) PROVISION OF ROLL.—The Council shall provide a copy of 

the roll of qualified Native Hawaiian constituents to the governing body of the Native Hawaiian governing entity. 

(7) TERMINATION.—The Council shall cease to exist and shall 

have no power or authority under this Act after the officers of 

the governing body who are elected as provided in paragraph 

(5) are installed. 

(8) REAFFIRMATION.—Notwithstanding any other provision of 

law, the special political and legal relationship between the 

United States and the Native Hawaiian people is hereby reaffirmed and the United States extends Federal recognition to 

the Native Hawaiian governing entity as the representative 

sovereign governing body of the Native Hawaiian people 

after— 

(A) the approval of the organic governing documents by 

the Secretary under subparagraph (A) or (C) of paragraph 

(4); and 

(B) the officers of the Native Hawaiian governing entity 

elected under paragraph (5) have been installed. 

SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY 

TO STATE OF HAWAII; GOVERNMENTAL AUTHORITY AND 

POWER; 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) GOVERNMENTAL AUTHORITY AND POWER.— 

(1) IN GENERAL.—Consistent with the policies of the United 

States set forth in section 4(a)(4), the Native Hawaiian governing entity shall be vested with the inherent powers and 

privileges of self-government of a native government under existing law, except as set forth in this Act. Said powers and 

privileges may be modified by agreement between the Native 

Hawaiian governing entity, the United States, and the State of 

Hawaii pursuant to the negotiations authorized in subsection 

(c)(1), and subject to the enactment of implementing legislation 

and to the limit described by section 10(a). 

(2) MEMBERSHIP.—Once the United States extends Federal 

recognition to the Native Hawaiian governing entity, the 

United States will recognize and affirm the Native Hawaiian 

governing entity’s inherent power and authority to determine 

its own membership criteria, to determine its own membership, 

and to grant, deny, revoke, or qualify membership without regard to whether any person was or was not deemed to be a 

qualified Native Hawaiian constituent under this Act. The Native Hawaiian governing entity must provide that membership 

in the Native Hawaiian governing entity is voluntary and can 

be relinquished. 

(c) 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 


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Hawaiian governing entity designed to lead to an agreement or 

agreements addressing such matters as— 

(A) the transfer of State of Hawaii lands and surplus 

Federal 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 exercise of the authority to tax and other powers 

and authorities that are recognized by the United States 

as powers and authorities typically exercised by governments representing indigenous, native people of the United 

States; 

(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 or the 

State of Hawaii, and the Native Hawaiian governing entity, 

the parties may 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 Natural Resources of the 

House of Representatives recommendations for proposed 

amendments to Federal law that will enable the implementation of agreements reached between the 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 governments. 

(3) During the period between the reaffirmation of the special political and legal relationship between the United States 

and the Native Hawaiian governing entity, and the subsequent 

enactment of legislation to implement the agreement or agreements negotiated under paragraph (1): 

(A) There shall be no Indian country within the State of 

Hawaii. 

(B) The United States shall not take land in trust for the 

benefit of the Native Hawaiian governing entity or for the 

benefit of members of the Native Hawaiian governing entity. 

(C) The United States shall not restrict the alienability 

of land owned by the Native Hawaiian governing entity. 

(D) Members of the Native Hawaiian governing entity 

shall continue to be subject to the civil and criminal jurisdiction of Federal and State courts. 

(E) Nothing in this Act alters or preempts the existing 

legislative, regulatory, or taxation authority of the State of 

Hawaii over individuals who are members of the Native 


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Hawaiian governing entity or over property owned by 

those individuals. 

(F) The Native Hawaiian governing entity shall not exercise criminal, civil, adjudicative, legislative, regulatory, or 

taxation authority or jurisdiction over individuals who are 

not members of the Native Hawaiian governing entity 

without their express consent. 

(G) The Native Hawaiian governing entity shall not exercise criminal, civil, adjudicative, legislative, regulatory, 

or taxation authority or jurisdiction over corporations or 

other associations or entities that are owned wholly or in 

majority part by persons who are not members of the Native Hawaiian governing entity without their express consent. 

(H) The Native Hawaiian governing entity shall be immune from any lawsuit in any Federal or State court, with 

the exception described in section 10(c)(3) and the exceptions set forth in clauses (i) through (iii) of this subparagraph. 

(i) The Native Hawaiian governing entity may waive 

its sovereign immunity, provided that it does so clearly and unequivocally. 

(ii) The Native Hawaiian governing entity shall not 

be immune from any lawsuit brought by the United 

States in any Federal court. 

(iii) Real property owned in fee simple by the Native 

Hawaiian governing entity shall not be immune from 

any in rem action filed by the State of Hawaii. 

(I) Governmental, nonbusiness, noncommercial activities 

undertaken by the Native Hawaiian governing entity, or 

by a corporation or other association or entity wholly 

owned by the Native Hawaiian governing entity, shall not 

be subject to the regulatory or taxation authority of the 

State of Hawaii, provided that nothing in this subparagraph shall exempt any natural person (except an officer 

or employee of the Native Hawaiian governing entity, acting within the scope of his or her authority), from the regulatory, taxation, or other authority of the State of Hawaii. 

In determining whether an activity is covered by this subparagraph, due consideration shall be given to the constraints described in subparagraphs (A), (F), and (G). 

(J) Commercial or business activities undertaken by the 

Native Hawaiian governing entity, or by a corporation or 

other association or entity owned, operated, or sponsored 

by the Native Hawaiian governing entity, shall be subject 

to the regulatory and taxation authority of the State of 

Hawaii to the same extent as commercial or business activities undertaken by others. 

(K) Subject to subparagraph (I), activities conducted on 

real property owned by, leased by, or subject to the control 

of the Native Hawaiian governing entity shall be subject 

to the regulatory and taxation authority of the State of 

Hawaii to the same extent as activities conducted on real 

property owned by, leased by, or subject to the control of 

others. 


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(L) Subject to subparagraph (O), real property owned by, 

leased by, or subject to the control of the Native Hawaiian 

governing entity, and development of such property, shall 

be subject to the regulatory and taxation authority of the 

State of Hawaii to the same extent as real property owned 

by, leased by, or subject to the control of others. 

(M) Any commercial or business corporation or other 

commercial or business association or entity owned, operated, or sponsored by the Native Hawaiian governing entity shall be subject to the regulatory and taxation authority 

of the State of Hawaii to the same extent as commercial 

and business corporations and other commercial and business associations and entities owned, operated, or sponsored by others. 

(N) Any specific power, authority, or restriction set forth 

in this paragraph shall expire upon enactment of legislation that implements an agreement or agreements negotiated under paragraph (1) and that expressly replaces or 

alters such power, authority, or restriction. 

(O) Nothing in this paragraph diminishes any right or 

immunity (including any immunity from State or local taxation) granted to Native Hawaiians or their property by 

the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, 

chapter 42), 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), or sections 

10001 through 10004 of the Department of Defense Appropriations Act, 1994 (sections 10001 through 1004 of Public 

Law 103–139; 107 Stat. 1418, 1480 (1993)). 

(4) Nothing in paragraph (3) should be interpreted as establishing any presumption about the powers or authorities that 

could properly be exercised by the United States, the State of 

Hawaii, or the Native Hawaiian governing entity after further 

legislation, including legislation enacted to implement any 

agreement negotiated under this subsection. 

(d) CLAIMS.—Nothing in this Act— 

(1) alters existing law, including case law, regarding obligations of the United States or the State of Hawaii relating to 

events or actions that occurred prior to recognition of the Native Hawaiian governing entity; 

(2) creates, enlarges, revives, modifies, diminishes, extinguishes, waives, or otherwise alters any Federal or State claim 

or cause of action against the United States or its officers or 

the State of Hawaii or its officers or any other person or entity, 

or any defense (including the defense of statute of limitations) 

to any such claim or cause of action, except in the case of 

claims or causes of action challenging the constitutionality or 

legality of programs benefitting Native Hawaiians to the extent that this Act creates or enlarges any defense to any such 

claim or cause of action; 

(3) amends section 2409a of title 28, United States Code 

(commonly known as the ‘‘Quiet Title Act’’), chapter 171 of title 

28, United States Code (commonly known as the ‘‘Federal Tort 

Claims Act’’), section 1491 of title 28, United States Code (commonly known as the ‘‘Tucker Act’’), section 1505 of title 28, 


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United States Code (commonly known as the ‘‘Indian Tucker 

Act’’), the Hawaii Organic Act (31 Stat. 141), or any other Federal statute, except as expressly amended by this Act; or 

(4) alters the sovereign immunity of the United States or of 

the State of Hawaii. 

SEC. 10. APPLICABILITY OF CERTAIN FEDERAL LAWS. 

(a) INDIAN GAMING REGULATORY ACT.— (1) IN GENERAL.—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) APPLICABILITY.—The prohibition contained in paragraph 

(1) regarding the use of Indian Gaming Regulatory Act (25 

U.S.C. 2701 et seq.) and inherent authority to game applies 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) 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, Code of Federal Regulations, or any other administrative acknowledgment or recognition process. 

(c) INDIAN PROGRAMS, SERVICES, AND LAWS.— (1) IN GENERAL.—Notwithstanding any other provision of 

this Act, nothing in this Act extends eligibility for any Indian 

program or service to the Native Hawaiian governing entity or 

its members unless a statute governing such a program or 

service expressly provides that Native Hawaiians or the Native 

Hawaiian governing entity is eligible for such program or service. Nothing in this Act affects the eligibility of any person for 

any program or service under any statute or law in effect before the date of enactment of this Act. 

(2) APPLICABILITY OF OTHER TERMS.—Subject to paragraph 

(3), in Federal statutes or regulations in force prior to the 

United States recognition of the Native Hawaiian governing 

entity, the terms ‘‘Indian’’ and ‘‘Native American’’, and references to Indian tribes, bands, nations, pueblos, villages, or 

other organized groups or communities, shall not apply to the 

Native Hawaiian governing entity or its members, unless the 

Federal statute or regulation expressly applies to Native Hawaiians or the Native Hawaiian governing entity. 

(3) INDIAN CIVIL RIGHTS ACT OF 1968.—The Council and the 

Native Hawaiian governing entity shall be subject to sections 

201 through 203 of the Indian Civil Rights Act of 1968 (25 

U.S.C. 1301–1303). Nothing in such Act, and nothing in this 

paragraph, shall be interpreted to expand the powers and authorities of the Council or the Native Hawaiian governing entity that are described elsewhere in this Act. 

(d) REAL PROPERTY TRANSFERS.—Section 2116 of the Revised 

Statutes (commonly known as the ‘‘Indian Trade and Intercourse 


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Act’’) (25 U.S.C. 177) does not apply to any purchase, grant, lease, 

or other conveyance of lands, or of any title or claim thereto, from 

Native Hawaiians, Native Hawaiian entities, or the Kingdom of 

Hawaii that occurred prior to the date of the United States’ recognition of the Native Hawaiian governing entity. 

SEC. 11. 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. 12. AUTHORIZATION OF APPROPRIATIONS. 

There are authorized to be appropriated such sums as are necessary to carry out this Act. 

PART B—TEXT OF THE AMENDMENTS TO THE AMENDMENT 

IN THE NATURE OF A SUBSTITUTE IN PART A TO BE 

MADE IN ORDER 

1. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE HASTINGS

OF WASHINGTON, OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

Strike subparagraphs (A) and (B) of section 8(c)(8), and insert 

the following: 

(A) the approval of the organic governing documents by 

a statewide popular vote in which all registered voters in 

the State of Hawaii are eligible to participate; 

(B) the approval of the organic governing documents by 

the Secretary under subparagraph (A) or (C) of paragraph 

(4); and 

(C) the officers of the Native Hawaiian governing entity 

elected under paragraph (5) have been installed. 

2. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE FLAKE OF

ARIZONA, OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

At the end of the bill, add the following: 

SEC. APPLICATION OF 14TH AMENDMENT. 

Nothing in the Act shall relieve a Native Hawaiian governing authority from complying with the equal protection clause of the 14th 

amendment to the United States Constitution. 

Æ 


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