89–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–412 

NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT 

OF 2009 

FEBRUARY 22, 2010.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. RAHALL, from the Committee on Natural Resources, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 2314] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 2314) to express the policy of the United States regarding 

the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity, having considered the same, report 

favorably thereon without amendment and recommend that the bill 

do pass. 

PURPOSE OF THE BILL

The purpose of H.R. 2314 is to express the policy of the United 

States regarding the United States’ relationship with Native Hawaiians and to provide a process for the recognition by the United 

States of a Native Hawaiian governing entity. 

BACKGROUND AND NEED FOR LEGISLATION

H.R. 2314 would authorize a process leading to the reorganization and recognition of a Native Hawaiian governing entity. A Native Hawaiian government will not be recognized immediately upon 

enactment of this measure. Instead, a process is established that 

requires the Secretary of the Interior to certify that the organic 

governing documents of a Native Hawaiian government are conVerDate Nov 24 2008 06:01 Feb 23, 2010 Jkt 089006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR412.XXX HR412

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1See ‘‘Legislative History’’ below. 

sistent with federal law and with the political and legal relationship between the United States and the indigenous people of the 

United States. Upon such certification, H.R. 2314 authorizes the 

federal recognition of a Native Hawaiian government. 

Historical background 

Native Hawaiians are the indigenous, native people of Hawaii, 

with whom the United States has a trust relationship. Congress 

has repeatedly recognized the unique status of Native Hawaiians 

since 1921. The long-standing policy of the United States has been 

to protect and advance Native Hawaiian interests. 

Beginning in the 106th Congress, the House Committee on Natural Resources and the Senate Committee on Indian Affairs have 

held extensive hearings on the reorganization of a Native Hawaiian 

government. Both Committees have filed reports 1 setting forth a 

detailed cultural and political history of the aboriginal people living 

in what is now the State of Hawaii. Rather than repeat this detailed history, those documents are hereby incorporated into this 

report. Reference should be made to those reports, in particular S. 

Rept. No. 108–85, for a detailed account of the history of the Native 

Hawaiian people and the islands, including their relations with the 

‘‘outside’’ world: the pre-contact period and the initial encounter 

with Captain James Cook of the British Royal Navy in 1778; the 

consolidation of power under King Kamehameha in the early 19th 

Century, followed by several decades of increasing contact and influence of foreigners and foreign powers; relations with the United 

States, with which the Kingdom executed a series of treaties and 

conventions between 1826 and 1887; the overthrow of the Kingdom 

and Queen Lili‘uokalani in 1893; the formation of the Republic of 

Hawaii and its annexation by the United States five years later; 

the establishment of the Territory of Hawaii in 1900; and, finally, 

the admission of the State of Hawaii into the Union in 1959. The 

following short summary of information places the issue in context. 

The Great Mahele 

In the middle of the 19th century, influential non-Hawaiians 

sought to limit the absolute power of the Hawaiian king and to implement property law so that they could accumulate and control 

land. As a result of foreign pressure, in 1840, King Kamehameha 

III promulgated a new constitution. Soon thereafter, the King authorized the Great Mahele (‘‘division’’), in which the King conveyed 

about 1.5 million acres to the konohiki, or main chiefs; he reserved 

about 1 million acres for himself and his royal successors (‘‘Crown 

Lands’’), and allocated about 1.5 million acres to the government of 

Hawaii (‘‘Government Lands’’). All lands remained subject to the 

rights of native tenants. In 1850, after the division was accomplished, an act was passed permitting non-natives to purchase land 

in fee simple. Upon annexation in 1898, the remaining Government 

Lands and Crown Lands were ceded by the Republic of Hawaii to 

the United States. These lands came to be known as the ‘‘Ceded 

Lands.’’ 


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2 30 Stat. 750 (July 7, 1898). 

3 31 Stat. 141 (April 30, 1900). 

4 H. Rept. 66–839 (1920). 

5 Id., at 5. 

6 42 Stat. 108 (July 9, 1921). 

7 Id., § 203. 

8 H. Rept. 66–839, at 11 (1920). 

9 H. Rept. 66–839, at 4 (1920). 

10 Hearings before the Committee on the Territories, House of Representatives, 66th Cong., 

2d Sess., on Proposed Amendments to the Organic Act of the Territory of Hawaii, February 3, 

4, 5, 7, and 10, 1920, at 129–30 (rejecting the argument that legislation aimed at ‘‘this distinct 

race’’ would be unconstitutional, Secretary Lane stated that ‘‘[w]e have got the right to set aside 

these lands for this particular body of people, because I think the history of the islands will 

justify that before any tribunal in the world,’’ and citing a Solicitor’s opinion that stated that 

the setting aside of public lands within the Territory of Hawaii would not be unconstitutional, 

relying in part on the congressionally authorized allotment to Indians as precedent for such an 

action); see, also, id. at 127 (colloquy between Secretary Lane and Representative Monahan, 

analogizing status of Native Hawaiians to that of Indians) and at 167–70 (colloquy between Representative Curry, Chair of the Committee, and Representatives Dowell, and Humphreys, makContinued 

Republic of Hawaii 

On January 17, 1893, a group of American citizens and others, 

who acted with the support of the United States Minister John Stephens and a contingent of United States Marines, overthrew the 

government of the Kingdom of Hawaii. Supporters of this revolutionary movement organized the Republic of Hawaii. Notwithstanding strong opposition from within the Native Hawaiian community, officials of the Republic of Hawaii succeeded in having the 

Hawaiian Islands annexed by the United States. In 1898, Congress 

adopted the Joint Resolution for Annexing the Hawaiian Islands to 

the United States.2 Soon thereafter, Congress passed the Hawaii 

Organic Act 3 establishing a government for the newly created Territory of Hawaii. 

Hawaiian Homes Commission Act 

By 1920, many were concluding that Native Hawaiians were a 

‘‘dying race’’ and that if they were to be saved from extinction, they 

must have the means of regaining their connection to the land.4

Then Secretary of the Interior Franklin Lane attributed the declining population to health problems like those faced by the ‘‘Indian 

in the United States’’ and concluded the Nation must provide similar remedies.5 In an effort to ‘‘rehabilitate’’ Native Hawaiians by 

returning them to the land, the Congress enacted the Hawaiian 

Homes Commission Act.6 The Act sets aside approximately 203,500 

acres of the Ceded Lands for Native Hawaiian homesteading.7 Congress compared the Act to ‘‘previous enactments granting Indians 

. . . special privileges in obtaining and using the public lands.’’ 8

In hearings on the matter, Secretary of the Interior Franklin 

Lane explained the trust relationship on which the statute was 

premised: ‘‘One thing that impressed me . . . was the fact that the 

natives of the islands who are our wards, I should say, and for 

whom in a sense we are trustees, are falling off rapidly in numbers 

and many of them are in poverty.’’ 9

Secretary Lane explicitly analogized the relationship between the 

United States and Native Hawaiians to the trust relationship between the United States and other Native Americans, explaining 

that programs for Native Hawaiians are fully supported by history 

and ‘‘an extension of the same idea’’ that supports such programs 

for other Indians.10


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ing the same analogy and rejecting the objection that ‘‘we have no government or tribe to deal 

with here’’). 11 25 U.S.C. §§ 334, 348, 349, 354, e.g. 12 42 Stat. 1222, § 3 (Feb. 3, 1923). 13Office of State Planning, Office of the Governor, State of Hawaii, Pt. 1, Report on Federal 

Breaches of the Hawaiian Home Lands Trust, 4–6 (1992). 14Section 5 of Public Law 86–3, (March 18, 1959) (the ‘‘Hawaii Admission Act’’). 15 Id., § 5(f); Haw. Const. Art. XII, § 4. 16 Id., § 4. 17 42 Stat. 108 (July 9, 1921). 18 Id. 19Public Law 86–3, § 4. 20See e.g., Han v. United States, 45 F. 3d 333 (9th Cir. 1995). 

The 1921 Act authorizes a Native Hawaiian to lease Ceded 

Lands for a term of ninety-nine years, provided that the lessee occupy and use or cultivate the tract within one year after the lease 

is entered into. A restriction on alienation, like those imposed on 

Indian lands subject to allotment, was included in the lease. Also 

like the general allotment acts affecting Indians,11 the leases were 

intended to encourage rural homesteading so that Native Hawaiians would return to rural subsistence or commercial farming and 

ranching. In 1923, the Congress amended the Act to permit onehalf acre residence lots and to provide for home construction 

loans.12 Thereafter, the demand for residential lots far exceeded 

the demand for agricultural or pastoral lots.13

Hawaii Admission Act 

Congress again recognized the unique status of Native Hawaiians when Hawaii gained Statehood in 1959. Upon its admission 

into the Union of States, the Ceded Lands were conveyed to the 

State of Hawaii.14 Section 5(f) of the Hawaii Admission Act requires that the Ceded Lands and the revenues derived therefrom 

be held by the State of Hawaii as a public trust for five purposes— 

one of which was for the betterment of Native Hawaiians.15 Moreover, as a condition of admission into the Union, the Hawaii Admission Act 16 also required the new State to assume management 

of the homesteading program established under the Hawaiian 

Homes Commission Act 17 and to adopt that Federal law, as 

amended, as a provision of its Constitution. 

These explicit delegations of federal authority to be assumed by 

the new State were not discretionary or permissive. Instead, the 

United States retained responsibility for the administration and 

amendment of the Hawaiian Homes Commission Act, and continues to oversee the use of Ceded Lands and the income or proceeds therefrom. Sections 4 and 5 of the Hawaii Admission Act 

clearly contemplate a continuing Federal role. 

The federal government retains the right to enforce the trust responsibility for Native Hawaiians.18 In fact, the Hawaii Admission 

Act provided that the use of the Ceded Lands and revenues for any 

use other than the five specified uses shall constitute a breach of 

trust for which suit may be brought by the United States.’ 19 Likewise, sections 204 and 223 of the Hawaiian Homes Commission Act 

require the Secretary of the Interior to consent to certain exchanges of trust land and reserves to Congress the right to amend 

that Act. Federal and state courts have repeatedly concluded that 

the United States retains the authority to bring an enforcement action against the State of Hawaii for breach of the trust responsibilities set forth in section 5 of the Hawaii Admission Act.20 These reVerDate Nov 24 2008 06:01 Feb 23, 2010 Jkt 089006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR412.XXX HR412

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21See, e.g., Keaukaha-Panaewa Community Ass’n v. Hawaiian Homes Comm’n, 739 F. 2d 1467 

(9th Cir. 1984) (finding that Section 5(f) of the Hawaii Admission Act, which set aside lands 

held in trust under the Hawaiian Homes Commission Act, creates a federal right in the Native 

Hawaiian beneficiaries enforceable prospectively against the State of Hawaii under 42 U.S.C. 

1983); Napeahi v. Paty, 921 F.2d 897 (9th Cir. 1990), cert. denied, 502 U.S. 901 (1991) (same, 

concerning lands which were assets of the land trust created under Section5(f) of the Hawaii 

Admission Act but which were not Hawaiian Home lands.). 22Public Law 103–150. 

sponsibilities are also enforceable by the Native Hawaiian beneficiaries themselves.21

1978 Amendments to the Hawaii Constitution 

In 1978, the Hawaii State constitution was amended to further 

the special relationship with Native Hawaiians and to protect Native Hawaiian sub-sistence rights, hunting and gathering rights, 

their right to self-determination and self-governance, and their attempts to preserve their culture and language. The 1978 amendments established a quasi-independent state agency, the Office of 

Hawaiian Affairs. Pursuant to the 1978 amendments, the Office 

was to be governed by nine trustees who are Native Hawaiian and 

who are to be elected by Native Hawaiians. 

Hawaii’s adoption of amendments to the State constitution to fulfill the special relationship with Native Hawaiians is consistent 

with the practice of other states that have established special relationships with the native inhabitants of their areas. Fourteen 

states have extended recognition to Indian tribes that are not recognized by the federal government, and thirty-two states have established commissions and offices to address matters of policy affecting their indigenous citizenry. 

Apology resolution 

One hundred years after the illegal overthrow of the Native Hawaiian government, a resolution extending an apology on behalf of 

the United States to Native Hawaiians for the illegal overthrow of 

the Native Hawaiian government and calling for a reconciliation of 

the relationship between the United States and Native Hawaiians 

was enacted into law (Apology Resolution).22 The Apology Resolution acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the 

United States and further acknowledges that the Native Hawaiian 

people never directly relinquished their claims to their inherent 

sovereignty as a people over their national lands to the United 

States, either through their government or through a plebiscite or 

referendum. 

Reconciliation report 

In response to the Apology Resolution, the Departments of the 

Interior and Justice initiated a process of reconciliation in 1999 by 

conducting meetings in Native Hawaiian communities on each of 

the principal islands in the State of Hawaii. At each meeting, Native Hawaiians identified what they believe are the necessary elements of a process to reconcile the relationship between the United 

States and the Native Hawaiian people. Although the two departments made several recommendations, the principal recommendation was ‘‘that the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal 


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23From Mauka to Makai: The River of Justice Must Flow Freely, Report on the Reconciliation 

Process between the Federal Government and Native Hawaiians Prepared by the Department 

of the Interior and the Department of Justice, p. 17, October 23, 2000. 24 528 U.S. 495 (2000). 25See, Arakaki v. State of Hawaii, 314 F.3d 1091 (9th Cir. 2002) (invalidating on similar 

grounds the requirement that candidates for that office to be Native Hawaiian). 

law, as do Native American tribes . . . [and] [t]o safeguard and enhance Native Hawaiian self-determination over their lands, cultural resources, and internal affairs, the Departments believe Congress should enact further legislation to clarify Native Hawaiians’ 

political status and to create a framework for recognizing a government-to-government relationship with a representative Native Hawaiian governing body.’’ 23

Rice v. Cayetano 

On February 23, 2000, the United States Supreme Court issued 

a ruling in the case of Rice v. Cayetano.24 The Supreme Court held 

that the provision of state law requiring those voting for the office 

of Trustee of the Office of Hawaiian Affairs to be Native Hawaiian 

violated the Fifteenth Amendment of the United States Constitution. The Court in Rice specifically stated that it need not decide 

whether Native Hawaiians have the same status as Indian tribes 

because of its finding that the provision violated the Fifteenth 

Amendment. The Court found that the Office of Hawaiian Affairs 

is an agency of the State of Hawaii, funded in part by appropriations made by the state legislature. Therefore, the election for the 

trustees of the Office of Hawaiian Affairs must be open to all citizens of the State of Hawaii who are otherwise eligible to vote in 

statewide elections. Accordingly, all Hawaiian citizens may vote for 

the candidates for the trustee positions and may themselves be 

candidates for these offices.25 Consequently, Native Hawaiians 

have been divested of the mechanism that, since 1978, has enabled 

them to give expression to their rights as indigenous, native people 

of the United States to self-determination and self-governance. 

H.R. 2314 would address these developments by extending the federal policy of self-determination and self-governance to Native Hawaiians. 

Congress’ plenary authority 

For more than 200 years, the United States Congress, the Executive Branch, and the United States Supreme Court have recognized 

certain legal rights and protections for America’s indigenous peoples. Since the founding of the United States, Congress has exercised constitutional authority over indigenous affairs and has undertaken an enhanced duty of care for America’s indigenous peoples. This has been done in recognition of the sovereignty possessed 

by the native people—a sovereignty which pre-existed the formation of the United States. Congress’ constitutional authority is premised upon the status of the indigenous people as the original inhabitants of this nation who occupied and exercised dominion and 

control over the lands which eventually became the United States. 

The United States has long recognized the existence of a political 

relationship with the indigenous people of the United States. The 

United States has recognized that Native Americans—American 

Indians, Alaska Natives, and Native Hawaiians—are entitled to 

different rights and considerations. Congress has enacted laws to 


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26 417 U.S. 535 (1974). 27 Id. at 553, n. 24. 28 Id. at 554. 29 Id. 30 United States v. Lara, 541 U.S. 193 (2004). 31Delaware Tribal Business Council v. Weeks, 430 U.S. 73 (1977); United States v. Sioux Nation, 448 U.S. 371 (1980). 32Lara, 541 U.S. at 203. 33See, S. Rept. 108–85, at 22–36. 34 541 U.S. 193 (2004). 35 Id., at 202; emphasis added. 36The Court noted that the power of Congress in Indian affairs derives not only from the Indian Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, 

but rests also ‘‘upon the Constitution’s adoption of preconstitutional powers necessarily inherent 

in any Federal Government, namely powers that [the U.S. Supreme] Court has described as 

‘necessary concomitants of nationality.’ ’’ Id. at 200–201. 37 Id., at 203–4; emphasis added. 38 Id., at 201–2. 

give expression to the respective legal rights and responsibilities of 

the federal government and the native people. As the United States 

Supreme Court stated in Morton v. Mancari,26 the United States 

relationship with Native Americans is ‘‘political rather than racial 

in nature’’ 27 and legislation providing a preference for members of 

such groups does not violate the Equal Protection Clause of the 

Fourteenth Amendment of the United States Constitution where 

‘‘the special treatment can be tied rationally to the fulfillment of 

Congress’ unique obligations toward the Indians[.]’’ 28

The United States Supreme Court has so often addressed the 

scope of Congress’ constitutional authority to address the conditions of native people that it is now well-established. The Court has 

characterized the authority of Congress as ‘‘plenary’’ 29 or as ‘‘plenary and exclusive.’’ 30 In addition, the Court has frequently stated 

its views regarding the broad scope of Congressional authority with 

respect to native people 31 and other ‘‘dependent sovereign[s] that 

[are] not . . . state[s].’’ 32 The report filed with S. 344 during the 

108th Congress sets forth a more extensive discussion of the constitutional sources of Congressional authority to legislate on matters relating to Native Americans, including the reorganization of 

a Native Hawaiian governing entity.33

United States v. Lara 

In April, 2004, the United States Supreme Court issued its decision in United States v. Lara.34 The Court expressed the view that 

Congress enjoys ‘‘ ‘plenary’ grants of power’’ 35 to legislate over matters relating to Indians and clarified its views of the sources of that 

power.36

The Lara decision is pertinent to H.R. 2314 because in finding 

that Congress has the authority to modify the contours of inherent 

Indian tribal sovereignty, the Court compared, and justified, the 

particular modifications in sovereignty involved in that case with 

some examples of ‘‘adjustments to the autonomous status of other 

such dependent entities,’’ including the Territory of Hawaii, the 

Northern Mariana Islands, the Philippines and Puerto Rico.37 The 

Court acknowledged that Congress’ plenary power over Indian affairs, which stems not only from the Indian Commerce Clause but 

also the Treaty Clause and the ‘‘necessary concomitants of nationality,’’ 38 includes the power to recognize, terminate and restore the 


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39 Id. See, also, the Court’s observations in U.S. v. John, 437 U.S. 634 (1978): ‘‘[I]n view of 

the elaborate history, recounted above, of relations between the Mississippi Choctaws and the 

United States, we do not agree that Congress and the Executive Branch have less power to deal 

with the affairs of the Mississippi Choctaws than with the affairs of other Indian groups. Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, long ago removed from Mississippi, nor the fact that federal supervision over them has not 

been continuous, destroys the federal power to deal with them.’’ Id., at 652–3. 

tribal status of Indian tribes.39 In short, the plenary grants of 

power described by the Court should be more than broad enough 

to encompass the provisions of H.R. 2314. 

Legislative history 

In the 106th Congress, H.R. 4904 was introduced by Representative Abercrombie. A companion bill, S. 2899, was introduced in the 

Senate. Between August 28 and September 1, 2000, the Committee 

on Resources held a 5-day joint hearing with the Senate Committee 

on Indian Affairs on H.R. 4904 and S. 2899, in Honolulu, Hawaii, 

and received extensive oral and written testimony from witnesses. 

See S. Hrg. 106–753 and the addendum printed in S. Hrg. 106– 

1105. A hearing on S. 2899 was held in Washington D.C. on September 14, 2000. See S. Hrg. 106–795. H.R. 4904 was reported by 

the Committee on Resources with its accompanying report, H. 

Rept. 106–897, and passed the House of Representatives by voice 

vote on September 26, 2000. S. 2899 was reported from the Committee on Indian Affairs with its accompanying report, S. Rept. 

106–424. 

In the 107th Congress, H.R. 617 was introduced by Representative Abercrombie. It was ordered reported by the Committee on Resources with its accompanying report, H. Rept. 107–140. Companion bills, S. 746 and S. 1783, were introduced in the Senate. S. 

746 (with its accompanying report S. Rept. 107–66) was ordered reported by the Committee on Indian Affairs. 

In the 108th Congress, H.R. 665 and H.R. 4282 were introduced 

by Representative Abercrombie. H.R. 4282 was introduced to reflect 

negotiations between the State of Hawaii, the Hawaii Congressional delegation and the Administration. It was ordered reported 

by the Committee on Resources with its accompanying report, H. 

Rept. 108–742. A companion bill, S. 344, was introduced in the 

Senate. A hearing was held by the Committee on Indian Affairs on 

February 25, 2003, and it was ordered reported with its accompanying report, S. Rept. 108–85. 

In the 109th Congress, H.R. 309 was introduced by Representative Abercrombie. S. 147 was introduced in the Senate, and after 

a hearing held on March 1, 2005, the Committee on Indian Affairs 

ordered the bill reported from the Committee on Indian Affairs 

with its accompanying report, S. Rept. 109–68. After S. 147 was reported from the Committee, S. 3064 was introduced to address concerns raised by the Department of Justice. It was placed directly 

on the Senate Legislative Calendar. On June 8, 2006, S. 147 failed 

to garner the necessary vote to invoke cloture. 

In the 110th Congress, H.R. 505 was introduced by Representative Abercrombie and referred to the Committee on Natural Resources. It was ordered reported by the Committee by voice vote 

with no amendments on May 2, 2007, with its accompanying report 

H. Rept. 110–389. On October 24, 2007, H.R. 505 passed the House 

of Representatives on a vote of 261 yeas and 153 nays. It was 


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placed on the Senate Legislative Calendar. A companion bill, S. 

310, was introduced in the Senate. After a hearing, S. 310 was ordered reported with its accompanying report, S. Rept. 110–260. 

COMMITTEE ACTION

H.R. 2314 was introduced on May 7, 2009 by Representative 

Abercrombie (D–HI). The bill was referred to the Committee on 

Natural Resources. On June 11, 2009, the Natural Resources Committee held a hearing on the bill. On December 16, 2009, the Committee met to consider the bill. A motion to postpone consideration 

of H.R. 2314 until February 24, 2010 made by Representative 

Hastings (R–WA) was not agreed to by a roll call vote of 9 yeas and 

25 nays, as follows: 


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A motion to reconsider the vote was made by Representative 

Hastings. A motion to table the motion to reconsider made by Representative Miller (D–CA) was agreed to by a roll call vote of 23 

yeas and 8 nays, as follows: 


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An amendment offered by Representative Lamborn (R–CO) to require approval of the organic governing documents of the Native 

Hawaiian Governing Entity by a referendum of all Hawaiian citizens was not agreed to by voice vote. An amendment offered by 

Representative Broun (R–GA) to grant the Supreme Court of the 

United States original and exclusive jurisdiction over any Constitutional challenges to any section or provision of the underlying Act 

was not agreed to by voice vote. An amendment offered by Representative Hastings (R–WA) to eliminate the gaming prohibition 

clause was not agreed to by voice vote. The bill was then favorably 

reported to the House of Representatives by a roll call vote of 26 

yeas and 13 nays, as follows: 


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SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 sets forth the short title of the bill as the ‘‘Native Hawaiian Government Reorganization Act of 2009.’’ 

Section 2. Findings 

Section 2 sets forth findings, including findings regarding the 

history of Native Hawaiians; their interactions with the United 

States; Congress’ authority over Native Hawaiians; Congress’ past 

declaration of the political and legal relationship with Native Hawaiians; and Native Hawaiians expression of their rights to self-determination, self-governance, and economic self-sufficiency. 

Section 3. Definitions 

Section 3 sets forth definitions of terms used in this Act, including definitions for the term ‘‘Native Hawaiian,’’ which is defined as 

an individual who is one of the indigenous, native people of Hawaii 

and who is a direct lineal descendant of the aboriginal, indigenous, 

native people who resided in the islands that now comprise the 

State of Hawaii on or before January 1, 1893 and who occupied and 

exercised sovereignty in the Hawaiian archipelago, including the 

area that now constitutes the State of Hawaii, or an individual who 

is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes 

Commission Act or a direct lineal descendant of that individual. 

Section 4. United States policy and purpose 

Section 4 reaffirms policies of the United States, including that 

Native Hawaiians are indigenous, native people; the United States 

has a political and legal relationship with Native Hawaiians; that 

Congress has the authority under Article I, section 8, clause 3 of 

the United States Constitution to enact legislation to address the 

conditions of Native Hawaiians and has done so in more than 150 

federal laws; that Native Hawaiians have an inherent right to autonomy in their internal affairs, an inherent right of self-determination and self-governance, the right to reorganize a Native Hawaiian governing entity, and the right to become economically selfsufficient; and that the United States shall continue to engage in 

the process of reconciliation and political relations with Native Hawaiians. 

This section also sets forth the purpose of this Act, which is to 

provide a process for the reorganization of a Native Hawaiian governing entity and the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity. 

Section 5. United States Office for Native Hawaiian Relations 

Section 5 establishes the United States Office for Native Hawaiian Relations (Office) in the Office of the Secretary of the Department of the Interior and sets forth the duties of the Office. These 

duties include continuing the process of reconciliation with Native 

Hawaiians; effectuating and coordinating the political and legal relationship between the Native Hawaiian governing entity and the 

United States; consulting with the Native Hawaiian governing enVerDate Nov 24 2008 06:01 Feb 23, 2010 Jkt 089006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\HR412.XXX HR412

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tity before taking any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands; consulting with the Interagency Coordinating Group, other federal 

agencies, and the State of Hawaii on policies, practices, and proposed actions affecting Native Hawaiian resources, rights, or lands; 

and preparing and submitting an annual report containing certain 

information to specified Committees of Congress and providing recommendations for any necessary changes to federal law or regulations. This section does not apply to the Department of Defense but 

the Secretary of Defense may designate one or more officials as liaison to the Office. 

Section 6. Native Hawaiian Interagency Coordinating Group 

Section 6 establishes the Native Hawaiian Interagency Coordinating Group, which is to be composed of officials from each federal 

agency that administers Native Hawaiian programs, establishes or 

implements policies that affect Native Hawaiians, or whose actions 

may significantly or uniquely impact Native Hawaiian resources, 

rights, or lands, and the Office for Native Hawaiian Relations. The 

specific duties of the Interagency Coordinating Group are set forth 

but, generally, the Group will coordinate federal programs and policies affecting Native Hawaiians. This section does not apply to the 

Department of Defense but the Secretary of Defense may designate 

one or more officials as liaison to the Interagency Coordinating 

Group. 

Section 7. Process for the reorganization of the Native Hawaiian 

governing entity and the reaffirmation of the special political 

and legal relationship between the United States and the Native Hawaiian governing entity 

Section 7 addresses the process for the reorganization of the Native Hawaiian governing entity and provides for the reaffirmation 

of the political and legal relationship between the United States 

and the Native Hawaiian governing entity. 

This section recognizes the right of Native Hawaiians to reorganize a single Native Hawaiian governing entity to provide for their 

common welfare and to adopt appropriate organic governing documents. A Commission is established to prepare and maintain a roll 

of the adult members of the Native Hawaiian community who elect 

to participate in the reorganization of the Native Hawaiian governing entity and to certify that the adult members of the Native 

Hawaiian community, who have submitted sufficient documentation and proposed for inclusion on the roll, meet the definition of 

‘‘Native Hawaiian.’’ 

Commission members will be appointed by the Secretary of the 

Interior and must have not less than 10 years of experience in the 

study and determination of Native Hawaiian genealogy and an 

ability to read and translate into English documents written in the 

Hawaiian language. Duties of the Commission include preparing 

and maintaining a roll of the adult members of the Native Hawaiian community and certifying to the Secretary that each of the 

adult members proposed for inclusion on the roll meet the definition of ‘‘Native Hawaiian’’ set forth in this Act. The certified roll 

shall be published in the Federal Register. An appeal mechanism 

may be established by the Secretary for any person whose name is 


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excluded from the roll but who claims to meet the ‘‘Native Hawaiian’’ definition. 

The adult members listed on the certified roll may develop criteria for candidates to serve on the Native Hawaiian Interim Governing Council, determine the structure of the Council, and elect 

members to service on the Council. This section sets forth the powers and activities of the Council, which include developing organic 

governing documents for the Native Hawaiian governing entity and 

holding elections to ratify such organic documents. 

Following ratification, the organic governing documents shall be 

submitted to the Secretary. The Secretary must certify that the organic documents contain certain information, including civil rights 

protection for citizens of the Native Hawaiian governing entity and 

all persons affected by the exercise of governmental powers and authorities by the Native Hawaiian governing entity. 

Upon certification of the organic governing documents and the 

election of officers of the Native Hawaiian governing entity, the political and legal relationship between the United States and the 

Native Hawaiian governing entity will automatically be reaffirmed 

and federal recognition shall be extended to the Native Hawaiian 

governing entity. 

Section 8. Reaffirmation of delegation of Federal authority; negotiations; claims 

Section 8 reaffirms the delegation of authority to the State of Hawaii to address the conditions of Native Hawaiians. It provides that 

upon reaffirmation of the political and legal relationship between 

the United States and the Native Hawaiian governing entity, the 

United States and the State of Hawaii may negotiate with the Native Hawaiian governing entity on certain issues. Negotiation topics include the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or 

resources; the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land 

use; the exercise of civil and criminal jurisdiction; the delegation of 

governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii; any residual responsibilities of the United States and the State of Hawaii; 

and grievances regarding assertions of historical wrongs committed 

against Native Hawaiians by the United States or by the State of 

Hawaii. Upon agreement of any matters, the parties may submit 

proposed amendments to federal or state law to the Congress or 

the State of Hawaii, respectively. Any governmental power or authority of the Native Hawaiian governing entity which is currently 

exercised by the state or federal governments shall only be exercised by the Native Hawaiian governing entity as agreed to in negotiations under this section. 

Additionally, this section provides that this Act does not create 

a cause of action against the United States or any other entity or 

person; alter existing law regarding obligations on the part of the 

United States or the State of Hawaii with regard to Native Hawaiians or any Native Hawaiian entity; create obligations that did not 

exist in any source of federal law prior to the date of enactment 

of this Act; or establish authority for the recognition of more than 

one Native Hawaiian governing entity. In addition, nothing in this 


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Act creates any breach-of-trust actions, land claims, resource-protection or resource-management claims by or on behalf of Native 

Hawaiians or the Native Hawaiian governing entity and the 

United States retains its sovereign immunity from suit to any 

claim that exists prior to enactment of this Act which could be 

brought by Native Hawaiians or a Native Hawaiian governing entity. Any claims that may have already accrued and may be brought 

against the United States shall be rendered nonjusticiable. 

The State of Hawaii also retains its sovereign immunity unless 

waived in accordance with state law. Finally, nothing in this Act 

may be construed as overriding section 5 of the Fourteenth Amendment or state sovereign immunity held under the Eleventh Amendment. 

Section 9. Applicability of certain Federal laws 

This section prohibits the Native Hawaiian governing entity and 

Native Hawaiians from conducting gaming as a matter of claimed 

inherent authority or under any federal law, including the Indian 

Gaming Regulatory Act in the State of Hawaii or within any other 

State or Territory of the United States. 

The Secretary may not take land into trust for Native Hawaiians 

or on behalf of the Native Hawaiian governing entity. It makes 

clear that the Indian Trade and Intercourse Act does not, has 

never, and will not apply after enactment to lands or lands transfers present, past, or future, in the State of Hawaii. If a Court construes otherwise, any land transfers before the date of enactment 

of this Act shall be deemed to have been made in accordance with 

the Indian Trade and Intercourse Act. 

Only one Native Hawaiian governing entity may be recognized 

pursuant to this Act. Any other groups shall not be eligible for the 

Federal Acknowledgment Process. 

Nothing in this Act alters the civil or criminal jurisdiction of the 

United States or the State of Hawaii over lands and persons within 

the State of Hawaii, unless otherwise negotiated pursuant to section 8. 

Native Hawaiians shall not be eligible for programs and services 

available to Indians unless otherwise provided under applicable 

federal law. The Native Hawaiian governing entity and its citizens 

shall be eligible for Native Hawaiian programs and services to the 

extent and in the manner provided by other applicable laws. 

Section 10. Severability 

The section provides that if any section or provision of this Act 

is found to be invalid, the remaining sections or provisions shall 

continue in full force and effect. 

Section 11. Authorization of appropriations 

This section authorizes such sums as necessary to carry out this 

Act. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 


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FEDERAL ADVISORY COMMITTEE STATEMENT

The functions of the proposed advisory committee authorized in 

the bill are not currently being nor could they be performed by one 

or more agencies, an advisory committee already in existence or by 

enlarging the mandate of an existing advisory committee. 

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States 

grants Congress the authority to enact this bill. 

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to express the policy of the United States regarding 

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

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 2314—Native Hawaiian Government Reorganization Act of 

2009 

H.R. 2314 would establish a process for a Native Hawaiian government to be constituted and recognized by the federal government. CBO estimates that implementing this legislation would cost 

about $1 million annually in fiscal years 2010–2012 and less than 

$500,000 in each subsequent year, assuming the availability of appropriated funds. Enacting the bill would not affect direct spending 

or revenues. 

The bill would establish the United States Office for Native Hawaiian Relations within the Department of the Interior (DOI) to 

consult and coordinate the relationship with the Native Hawaiian 

governing entity. Based on information from DOI, CBO expects 

that the office would require up to three full-time personnel. H.R. 

2314 also would establish the Native Hawaiian Interagency Coordinating Group, consisting of officials from interested agencies. Finally, the bill would create a nine-member commission responsible 

for creating and certifying a roll of adult Native Hawaiians. Based 


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on information from DOI, CBO expects that this commission would 

need three years and three full-time staff to complete its work. 

H.R. 2314 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. Enacting this 

legislation could lead to the creation of a new government unit to 

represent Native Hawaiians. The transfer of any land or other assets, including land now controlled by the state of Hawaii, would 

be the subject of future negotiations. 

The CBO staff contact for this estimate is Jeff LaFave. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates. 

EARMARK STATEMENT

H.R. 2314 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law. 


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DISSENTING VIEWS 

H.R. 2314 is described by its proponents as legislation to recognize Native Hawaiians for the purpose of organizing a single governing entity to represent them on a government-to-government 

basis with the State of Hawaii and the Federal government. This 

is a circuitous means of saying that H.R. 2314 creates a Native Hawaiian Indian tribe, one that could enroll up to 400,000 members 

(and more after it is recognized). This would be one of the largest 

tribes in the United States, accordingly with the largest expectation of taxpayer dollars during a time of historic federal deficits 

and debt. 

But there is a key difference between the Hawaiian ‘‘tribe’’ recognized under H.R. 2314 and the tribes duly recognized through 

Treaty or Act of Congress: the former is not a tribe within the 

meaning of the Indian Commerce Clause of the Constitution (Article I, Section 8) because it does not share the historical and political relations of Indian tribes with Congress. While proponents 

often take pains to stress they do not propose to recognize a ‘‘tribe,’’ 

but a ‘‘governing entity,’’ the plain language of H.R. 2314 and the 

Akaka Substitute (discussed below) do extend tribal recognition. 

Proponents argue that Congress possesses broad, plenary authority to recognize Indian tribes. They point to a number of Acts 

passed over the years, including some 160 federal programs benefiting Native Hawaiians because of their status as Native Hawaiians, as evidence that Congress recognizes Native Hawaiians’ special status. The fact that federal, racially-based benefits have already been passed is hardly a valid argument on the merits for extending recognition to a Native Hawaiian tribe. This is like saying 

that the Democrats’ $787 billion ‘‘stimulus’’ is evidence that more 

federal spending is warranted. 

More importantly, the Supreme Court considered a case, Rice v. 

Cayetano, related to this controversy. The lawsuit involved a Hawaii state law that limited to Native Hawaiians the eligibility to 

vote in elections for trustees of the Office of Hawaiian Affairs 

(OHA). In a 7–2 decision the Supreme Court held that such a restriction is race-based and therefore prohibited by the 15th Amendment to the Constitution. Though the case did not involve a Native 

Hawaiian entity specifically recognized by Congress, the majority 

opinion noted that such a proposition ‘‘would raise questions of considerable moment and difficulty. It is a matter of some dispute . . . 

whether Congress may treat the native Hawaiians as it does the 

Indian tribes.’’ 

H.R. 2314 purports to recognize a Native Hawaiian tribe, but because this would exceed constitutional limits on who Congress can 

recognize as an Indian, it seeks to establish a race-based government. For this reason, a majority of the U.S. Commission on Civil 

Rights, which was established pursuant to the Civil Rights Act of 


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1957, recommended ‘‘against passage of the Native Hawaiian Government Reorganization Act . . . or any other legislation that 

would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.’’ 

In the June 11, 2009, hearing on this bill, the testimony of Civil 

Rights Commission Gail Heriot is instructive. She describes why 

granting tribal sovereignty to Native Hawaiians does not fit with 

the islands’ history: 

The 1840 Constitution of Hawaii established a bicameral 

parliament whose members were multi-racial. By 1893 

[when Hawaii’s ruling monarchy was overthrown], ethnic 

Hawaiians were a minority of the population. Anyone who 

was born on Hawaiian soil or who swore allegiance to the 

Queen was considered a subject of the Queen and hence 

‘‘Hawaiian,’’ regardless of race. This was no kinship-based 

tribe. It is thus difficult to argue that ethnic Hawaiians in 

particular have a right to sovereignty that was violated by 

the overthrow. 

More important, all of this has been water under the 

bridge at least since 1959 when Hawaii was made a State 

. . . On June 27, 1959, 94.3% of Hawaiian voters cast ballots in favor of statehood. 

Despite this overwhelming support for Statehood and one set of 

laws governing all Hawaiians, H.R. 2314 proposes to create a twotiered system of governance in Hawaii based on one’s race. Worse, 

it is impossible to say precisely how inclusive the entity will be 

even with respect to Native people of varying degrees of Hawaiian 

ancestry: under H.R. 2314 the governing entity may discard the 

carefully-crafted membership rules after it receives federal recognition, and construct an entirely new set of membership rules. 

The Akaka Substitute 

In the Committee markup of H.R. 2314, Hawaii Congressman 

Neil Abercrombie filed an amendment in the nature of a substitute 

that was informally called the ‘‘Akaka Substitute’’ after the Senator 

from Hawaii who oversaw its development. The Akaka Substitute 

was drafted in secret by Hawaiian advocates and the Obama Administration, to the exclusion of the participation of Hawaii’s Governor and Attorney General. Sprung upon the Committee just prior 

to the markup as a kind of Midnight Surprise, the Akaka Substitute would have made a bad bill even worse. 

As introduced, H.R. 2314 provides that matters such as transferring lands and preempting Federal and State civil, criminal, and 

tax jurisdiction, must be subject to negotiation with, and the concurrence of, the State of Hawaii and the U.S. Congress. The Akaka 

Substitute would have short-circuited this reasonable public process by immediately endowing the Hawaiian tribe with the inherent 

governing powers possessed by other recognized tribes, and preempting State civil and tax authority without the State’s consent. 

The Akaka Substitute was not offered by Mr. Abercrombie in a 

gesture of bipartisanship for which the Gentleman is to be commended. It must be noted that it was withdrawn after a letter was 


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submitted to the Committee by the Hawaii Attorney General on his 

behalf and Hawaii’s Governor. While the Governor and Attorney 

General had been ‘‘strong advocates and supports of [Native Hawaiian Recognition legislation] for years’’, they strongly opposed 

the Akaka Substitute because it would ‘‘completely change the nature of the Native Hawaiian governing entity.’’ In their words: 

These changes, taken together, change the bill from one 

where the status quo and the relations between the United 

States, the State of Hawaii, and the Native Hawaiian governing entity can be changed only after negotiations and 

after passage of implementing legislation, to a model in 

which the status quo immediately changes, pursuant to an 

Indian law model.’’ (Emphasis in the original). (Letter to 

Chairman Rahall and Ranking Member Hastings, December 15, 2009). 

If those secretly writing the Akaka Substitute seek to keep the 

Governor and Attorney General in the dark, then what exactly is 

the goal? Unfortunately, we will probably know only when H.R. 

2314 is brought to the Floor, presumably with another substitute 

amendment drafted behind closed doors. This manner of legislating 

is not worthy of the grave subject matter at hand, regardless of 

one’s position on it. 

In the end, if H.R. 2314 passes, the days of this entity will be 

numbered. It may take years and millions of dollars in billable 

hours, but the Supreme Court will perform the job that Congress 

is duty-bound to undertake today: reject a race-based governing entity in violation of the Constitution. But how many dollars will be 

spent, and how many racial and political scars will be left on Hawaii’s citizens when this controversy is concluded? 

H.R. 2314 should be soundly rejected. 

DOC HASTINGS. 

Attachment: Letter from State of Hawaii Attorney General Bennett. 


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