I 

111TH CONGRESS 

1ST SESSION H. R. 862 

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

relationship with Native Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the 

United States of the Native Hawaiian government, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 4, 2009 

Mr. ABERCROMBIE (for himself, Ms. HIRONO, Ms. BORDALLO, Mr. 

FALEOMAVAEGA, Mr. COLE, Mr. MORAN of Virginia, Mr. YOUNG of Alaska, and Mr. KILDEE) introduced the following bill; which was referred 

to the Committee on Natural Resources, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by 

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To express the policy of the United States regarding the 

United States relationship with Native Hawaiians, to 

provide a process for the reorganization of a Native 

Hawaiian government and the recognition by the United 

States of the Native Hawaiian government, and for other 

purposes. 

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


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1 SECTION 1. FINDINGS. 

2 Congress makes the following findings: 

3 (1) The Constitution vests Congress with the 

4 authority to address the conditions of the indige5 nous, native people of the United States. 

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

7 Hawaiian archipelago which is now part of the 

8 United States, are indigenous, native people of the 

9 United States. 

10 (3) The United States has a special trust rela11 tionship to promote the welfare of the native people 

12 of the United States, including Native Hawaiians. 

13 (4) Under the treaty making power of the 

14 United States, Congress exercised its constitutional 

15 authority to confirm a treaty between the United 

16 States and the government that represented the Ha17 waiian people, and from 1826 until 1893, the United 

18 States recognized the independence of the Kingdom 

19 of Hawaii, extended full diplomatic recognition to 

20 the Hawaiian government, and entered into treaties 

21 and conventions with the Hawaiian monarchs to gov22 ern commerce and navigation in 1826, 1842, 1849, 

23 1875, and 1887. 

24 (5) Pursuant to the provisions of the Hawaiian 

25 Homes Commission Act, 1920 (42 Stat. 108, chap26 ter 42), the United States set aside 203,500 acres 


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1 of land in the Federal territory that later became 

2 the State of Hawaii to address the conditions of Na3 tive Hawaiians. 

4 (6) By setting aside 203,500 acres of land for 

5 Native Hawaiian homesteads and farms, the Act as6 sists the Native Hawaiian community in maintaining 

7 distinct native settlements throughout the State of 

8 Hawaii. 

9 (7) Approximately 6,800 Native Hawaiian les10 sees and their family members reside on Hawaiian 

11 Home Lands and approximately 18,000 Native Ha12 waiians who are eligible to reside on the Home 

13 Lands are on a waiting list to receive assignments 

14 of land. 

15 (8) In 1959, as part of the compact admitting 

16 Hawaii into the United States, Congress established 

17 the Ceded Lands Trust for 5 purposes, one of which 

18 is the betterment of the conditions of Native Hawai19 ians. Such trust consists of approximately 1,800,000 

20 acres of land, submerged lands, and the revenues de21 rived from such lands, the assets of which have 

22 never been completely inventoried or segregated. 

23 (9) Throughout the years, Native Hawaiians 

24 have repeatedly sought access to the Ceded Lands 

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1 tablish and maintain native settlements and distinct 

2 native communities throughout the State. 

3 (10) The Hawaiian Home Lands and the Ceded 

4 Lands provide an important foundation for the abil5 ity of the Native Hawaiian community to maintain 

6 the practice of Native Hawaiian culture, language, 

7 and traditions, and for the survival of the Native 

8 Hawaiian people. 

9 (11) Native Hawaiians have maintained other 

10 distinctly native areas in Hawaii. 

11 (12) On November 23, 1993, Public Law 103– 

12 150 (107 Stat. 1510) (commonly known as the Apol13 ogy Resolution) was enacted into law, extending an 

14 apology on behalf of the United States to the Native 

15 people of Hawaii for the United States role in the 

16 overthrow of the Kingdom of Hawaii. 

17 (13) The Apology Resolution acknowledges that 

18 the overthrow of the Kingdom of Hawaii occurred 

19 with the active participation of agents and citizens 

20 of the United States and further acknowledges that 

21 the Native Hawaiian people never directly relin22 quished their claims to their inherent sovereignty as 

23 a people over their national lands to the United 

24 States, either through their monarchy or through a 

25 plebiscite or referendum. 


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1 (14) The Apology Resolution expresses the com2 mitment of Congress and the President to acknowl3 edge the ramifications of the overthrow of the King4 dom of Hawaii and to support reconciliation efforts 

5 between the United States and Native Hawaiians; 

6 and to have Congress and the President, through the 

7 President’s designated officials, consult with Native 

8 Hawaiians on the reconciliation process as called for 

9 under the Apology Resolution. 

10 (15) Despite the overthrow of the Hawaiian 

11 government, Native Hawaiians have continued to 

12 maintain their separate identity as a distinct native 

13 community through the formation of cultural, social, 

14 and political institutions, and to give expression to 

15 their rights as native people to self-determination 

16 and self-governance as evidenced through their par17 ticipation in the Office of Hawaiian Affairs. 

18 (16) Native Hawaiians also maintain a distinct 

19 Native Hawaiian community through the provision 

20 of governmental services to Native Hawaiians, in21 cluding the provision of health care services, edu22 cational programs, employment and training pro23 grams, children’s services, conservation programs, 

24 fish and wildlife protection, agricultural programs, 

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1 guage immersion schools from kindergarten through 

2 high school, as well as college and master’s degree 

3 programs in native language immersion instruction, 

4 and traditional justice programs, and by continuing 

5 their efforts to enhance Native Hawaiian self-deter6 mination and local control. 

7 (17) Native Hawaiians are actively engaged in 

8 Native Hawaiian cultural practices, traditional agri9 cultural methods, fishing and subsistence practices, 

10 maintenance of cultural use areas and sacred sites, 

11 protection of burial sites, and the exercise of their 

12 traditional rights to gather medicinal plants and 

13 herbs, and food sources. 

14 (18) The Native Hawaiian people wish to pre15 serve, develop, and transmit to future Native Hawai16 ian generations their ancestral lands and Native Ha17 waiian political and cultural identity in accordance 

18 with their traditions, beliefs, customs and practices, 

19 language, and social and political institutions, and to 

20 achieve greater self-determination over their own af21 fairs. 

22 (19) This Act provides for a process within the 

23 framework of Federal law for the Native Hawaiian 

24 people to exercise their inherent rights as a distinct 

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1 nize a Native Hawaiian government for the purpose 

2 of giving expression to their rights as native people 

3 to self-determination and self-governance. 

4 (20) The United States has declared that— 

5 (A) the United States has a special respon6 sibility for the welfare of the native peoples of 

7 the United States, including Native Hawaiians; 

8 (B) Congress has identified Native Hawai9 ians as a distinct indigenous group within the 

10 scope of its Indian affairs power, and has en11 acted dozens of statutes on their behalf pursu12 ant to its recognized trust responsibility; and 

13 (C) Congress has also delegated broad au14 thority to administer a portion of the Federal 

15 trust responsibility to the State of Hawaii. 

16 (21) The United States has recognized and re17 affirmed the special trust relationship with the Na18 tive Hawaiian people through— 

19 (A) the enactment of the Act entitled ‘‘An 

20 Act to provide for the admission of the State of 

21 Hawaii into the Union’’, approved March 18, 

22 1959 (Public Law 86–3; 73 Stat. 4) by— 

23 (i) ceding to the State of Hawaii title 

24 to the public lands formerly held by the 

25 United States, and mandating that those 


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1 lands be held in public trust for 5 pur2 poses, one of which is for the betterment 

3 of the conditions of Native Hawaiians; and 

4 (ii) transferring the United States re5 sponsibility for the administration of the 

6 Hawaiian Home Lands to the State of Ha7 waii, but retaining the authority to enforce 

8 the trust, including the exclusive right of 

9 the United States to consent to any actions 

10 affecting the lands which comprise the cor11 pus of the trust and any amendments to 

12 the Hawaiian Homes Commission Act, 

13 1920 (42 Stat. 108, chapter 42) that are 

14 enacted by the legislature of the State of 

15 Hawaii affecting the beneficiaries under 

16 the Act. 

17 (22) The United States continually has recog18 nized and reaffirmed that— 

19 (A) Native Hawaiians have a cultural, his20 toric, and land-based link to the aboriginal, na21 tive people who exercised sovereignty over the 

22 Hawaiian Islands; 

23 (B) Native Hawaiians have never relin24 quished their claims to sovereignty or their sov25 ereign lands; 


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1 (C) the United States extends services to 

2 Native Hawaiians because of their unique sta3 tus as the aboriginal, native people of a once 

4 sovereign nation with whom the United States 

5 has a political and legal relationship; and 

6 (D) the special trust relationship of Amer7 ican Indians, Alaska Natives, and Native Ha8 waiians to the United States arises out of their 

9 status as aboriginal, indigenous, native people 

10 of the United States. 

11 SEC. 2. DEFINITIONS. 

12 In this Act: 

13 (1) ABORIGINAL, INDIGENOUS, NATIVE PEO14 PLE.—The term ‘‘aboriginal, indigenous, native peo15 ple’’ means those people whom Congress has recog16 nized as the original inhabitants of the lands and 

17 who exercised sovereignty prior to European contact 

18 in the areas that later became part of the United 

19 States. 

20 (2) ADULT MEMBERS.—The term ‘‘adult mem21 bers’’ means those Native Hawaiians who have at22 tained the age of 18 at the time the Secretary pub23 lishes the final roll, as provided in section 7(a)(3) of 

24 this Act. 


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1 (3) APOLOGY RESOLUTION.—The term ‘‘Apol2 ogy Resolution’’ means Public Law 103–150 (107 

3 Stat. 1510), a joint resolution offering an apology to 

4 Native Hawaiians on behalf of the United States for 

5 the participation of agents of the United States in 

6 the January 17, 1893 overthrow of the Kingdom of 

7 Hawaii. 

8 (4) CEDED LANDS.—The term ‘‘ceded lands’’ 

9 means those lands which were ceded to the United 

10 States by the Republic of Hawaii under the Joint 

11 Resolution to provide for annexing the Hawaiian Is12 lands to the United States of July 7, 1898 (30 Stat. 

13 750), and which were later transferred to the State 

14 of Hawaii in the Act entitled ‘‘An Act to provide for 

15 the admission of the State of Hawaii into the 

16 Union’’ approved March 18, 1959 (Public Law 86– 

17 3; 73 Stat. 4). 

18 (5) COMMISSION.—The term ‘‘Commission’’ 

19 means the commission established in section 7 of 

20 this Act to certify that the adult members of the Na21 tive Hawaiian community contained on the roll de22 veloped under that section meet the definition of Na23 tive Hawaiian, as defined in paragraph (7)(A). 

24 (6) INDIGENOUS, NATIVE PEOPLE.—The term 

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1 scendants of the aboriginal, indigenous, native peo2 ple of the United States. 

3 (7) NATIVE HAWAIIAN.— 

4 (A) Prior to the recognition by the United 

5 States of a Native Hawaiian government under 

6 the authority of section 7(d)(2) of this Act, the 

7 term ‘‘Native Hawaiian’’ means the indigenous, 

8 native people of Hawaii who are the lineal de9 scendants of the aboriginal, indigenous, native 

10 people who resided in the islands that now com11 prise the State of Hawaii on or before January 

12 1, 1893, and who occupied and exercised sov13 ereignty in the Hawaiian archipelago, including 

14 the area that now constitutes the State of Ha15 waii, and includes all Native Hawaiians who 

16 were eligible in 1921 for the programs author17 ized by the Hawaiian Homes Commission Act 

18 (42 Stat. 108, chapter 42) and their lineal de19 scendants. 

20 (B) Following the recognition by the 

21 United States of the Native Hawaiian govern22 ment under section 7(d)(2) of this Act, the 

23 term ‘‘Native Hawaiian’’ shall have the mean24 ing given to such term in the organic governing 

25 documents of the Native Hawaiian government. 


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1 (8) NATIVE HAWAIIAN GOVERNMENT.—The 

2 term ‘‘Native Hawaiian government’’ means the citi3 zens of the government of the Native Hawaiian peo4 ple that is recognized by the United States under 

5 the authority of section 7(d)(2) of this Act. 

6 (9) NATIVE HAWAIIAN INTERIM GOVERNING

7 COUNCIL.—The term ‘‘Native Hawaiian Interim 

8 Governing Council’’ means the interim governing 

9 council that is organized under section 7(c) of this 

10 Act. 

11 (10) ROLL.—The term ‘‘roll’’ means the roll 

12 that is developed under the authority of section 7(a) 

13 of this Act. 

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

15 means the Secretary of the Interior. 

16 (12) TASK FORCE.—The term ‘‘Task Force’’ 

17 means the Native Hawaiian Interagency Task Force 

18 established under the authority of section 6 of this 

19 Act. 

20 SEC. 3. UNITED STATES POLICY AND PURPOSE. 

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

22 (1) Native Hawaiians are a unique and distinct 

23 aboriginal, indigenous, native people, with whom the 

24 United States has a political and legal relationship; 


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1 (2) the United States has a special trust rela2 tionship to promote the welfare of Native Hawaiians; 

3 (3) Congress possesses the authority under the 

4 Constitution to enact legislation to address the con5 ditions of Native Hawaiians and has exercised this 

6 authority through the enactment of— 

7 (A) the Hawaiian Homes Commission Act, 

8 1920 (42 Stat. 108, chapter 42); 

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

10 the admission of the State of Hawaii into the 

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

12 86–3; 73 Stat. 4); and 

13 (C) more than 150 other Federal laws ad14 dressing the conditions of Native Hawaiians; 

15 (4) Native Hawaiians have— 

16 (A) an inherent right to autonomy in their 

17 internal affairs; 

18 (B) an inherent right of self-determination 

19 and self-governance; 

20 (C) the right to reorganize a Native Ha21 waiian government; and 

22 (D) the right to become economically self23 sufficient; and 


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1 (5) the United States shall continue to engage 

2 in a process of reconciliation and political relations 

3 with the Native Hawaiian people. 

4 (b) PURPOSE.—It is the intent of Congress that the 

5 purpose of this Act is to provide a process for the reorga6 nization of a Native Hawaiian government and for the rec7 ognition by the United States of the Native Hawaiian gov8 ernment for purposes of continuing a government-to-gov9 ernment relationship. 

10 SEC. 4. ESTABLISHMENT OF THE UNITED STATES OFFICE 

11 FOR NATIVE HAWAIIAN AFFAIRS. 

12 (a) IN GENERAL.—There is established within the 

13 Office of the Secretary the United States Office for Native 

14 Hawaiian Affairs. 

15 (b) DUTIES OF THE OFFICE.—The United States Of16 fice for Native Hawaiian Affairs shall— 

17 (1) effectuate and coordinate the special trust 

18 relationship between the Native Hawaiian people 

19 and the United States through the Secretary, and 

20 with all other Federal agencies; 

21 (2) upon the recognition of the Native Hawai22 ian government by the United States as provided for 

23 in section 7(d)(2) of this Act, effectuate and coordi24 nate the special trust relationship between the Na25 tive Hawaiian government and the United States 


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1 through the Secretary, and with all other Federal 

2 agencies; 

3 (3) fully integrate the principle and practice of 

4 meaningful, regular, and appropriate consultation 

5 with the Native Hawaiian people by providing timely 

6 notice to, and consulting with the Native Hawaiian 

7 people prior to taking any actions that may affect 

8 traditional or current Native Hawaiian practices and 

9 matters that may have the potential to significantly 

10 or uniquely affect Native Hawaiian resources, rights, 

11 or lands, and upon the recognition of the Native Ha12 waiian government as provided for in section 7(d)(2) 

13 of this Act, fully integrate the principle and practice 

14 of meaningful, regular, and appropriate consultation 

15 with the Native Hawaiian government by providing 

16 timely notice to, and consulting with the Native Ha17 waiian people and the Native Hawaiian government 

18 prior to taking any actions that may have the poten19 tial to significantly affect Native Hawaiian re20 sources, rights, or lands; 

21 (4) consult with the Native Hawaiian Inter22 agency Task Force, other Federal agencies, and with 

23 relevant agencies of the State of Hawaii on policies, 

24 practices, and proposed actions affecting Native Ha25 waiian resources, rights, or lands; 


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1 (5) be responsible for the preparation and sub2 mittal to the Committee on Indian Affairs of the 

3 Senate, the Committee on Energy and Natural Re4 sources of the Senate, and the Committee on Re5 sources of the House of Representatives of an an6 nual report detailing the activities of the Interagency 

7 Task Force established under section 6 of this Act 

8 that are undertaken with respect to the continuing 

9 process of reconciliation and to effect meaningful 

10 consultation with the Native Hawaiian people and 

11 the Native Hawaiian government and providing rec12 ommendations for any necessary changes to existing 

13 Federal statutes or regulations promulgated under 

14 the authority of Federal law; 

15 (6) be responsible for continuing the process of 

16 reconciliation with the Native Hawaiian people, and 

17 upon the recognition of the Native Hawaiian govern18 ment by the United States as provided for in section 

19 7(d)(2) of this Act, be responsible for continuing the 

20 process of reconciliation with the Native Hawaiian 

21 government; and 

22 (7) assist the Native Hawaiian people in facili23 tating a process for self-determination, including but 

24 not limited to the provision of technical assistance in 

25 the development of the roll under section 7(a) of this 


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1 Act, the organization of the Native Hawaiian In2 terim Governing Council as provided for in section 

3 7(c) of this Act, and the recognition of the Native 

4 Hawaiian government as provided for in section 7(d) 

5 of this Act. 

6 (c) AUTHORITY.—The United States Office for Na7 tive Hawaiian Affairs is authorized to enter into a contract 

8 with or make grants for the purposes of the activities au9 thorized or addressed in section 7 of this Act for a period 

10 of 3 years from the date of enactment of this Act. 

11 SEC. 5. DESIGNATION OF DEPARTMENT OF JUSTICE REP12 RESENTATIVE. 

13 The Attorney General shall designate an appropriate 

14 official within the Department of Justice to assist the 

15 United States Office for Native Hawaiian Affairs in the 

16 implementation and protection of the rights of Native Ha17 waiians and their political, legal, and trust relationship 

18 with the United States, and upon the recognition of the 

19 Native Hawaiian government as provided for in section 

20 7(d)(2) of this Act, in the implementation and protection 

21 of the rights of the Native Hawaiian government and its 

22 political, legal, and trust relationship with the United 

23 States. 


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1 SEC. 6. NATIVE HAWAIIAN INTERAGENCY TASK FORCE. 

2 (a) ESTABLISHMENT.—There is established an inter3 agency task force to be known as the ‘‘Native Hawaiian 

4 Interagency Task Force’’. 

5 (b) COMPOSITION.—The Task Force shall be com6 posed of officials, to be designated by the President, 

7 from— 

8 (1) each Federal agency that establishes or im9 plements policies that affect Native Hawaiians or 

10 whose actions may significantly or uniquely impact 

11 on Native Hawaiian resources, rights, or lands; 

12 (2) the United States Office for Native Hawai13 ian Affairs established under section 4 of this Act; 

14 and 

15 (3) the Executive Office of the President. 

16 (c) LEAD AGENCIES.—The Department of the Inte17 rior and the Department of Justice shall serve as the lead 

18 agencies of the Task Force, and meetings of the Task 

19 Force shall be convened at the request of either of the 

20 lead agencies. 

21 (d) CO-CHAIRS.—The Task Force representative of 

22 the United States Office for Native Hawaiian Affairs es23 tablished under the authority of section 4 of this Act and 

24 the Attorney General’s designee under the authority of 

25 section 5 of this Act shall serve as co-chairs of the Task 

26 Force. 


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1 (e) DUTIES.—The responsibilities of the Task Force 

2 shall be— 

3 (1) the coordination of Federal policies that af4 fect Native Hawaiians or actions by any agency or 

5 agencies of the Federal Government which may sig6 nificantly or uniquely impact on Native Hawaiian re7 sources, rights, or lands; 

8 (2) to assure that each Federal agency develops 

9 a policy on consultation with the Native Hawaiian 

10 people, and upon recognition of the Native Hawaiian 

11 government by the United States as provided in sec12 tion 7(d)(2) of this Act, consultation with the Native 

13 Hawaiian government; and 

14 (3) to assure the participation of each Federal 

15 agency in the development of the report to Congress 

16 authorized in section 4(b)(5) of this Act. 

17 SEC. 7. PROCESS FOR THE DEVELOPMENT OF A ROLL FOR 

18 THE ORGANIZATION OF A NATIVE HAWAIIAN 

19 INTERIM GOVERNING COUNCIL, FOR THE OR20 GANIZATION OF A NATIVE HAWAIIAN IN21 TERIM GOVERNING COUNCIL AND A NATIVE 

22 HAWAIIAN GOVERNMENT, AND FOR THE REC23 OGNITION OF THE NATIVE HAWAIIAN GOV24 ERNMENT. 

25 (a) ROLL.— 


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1 (1) PREPARATION OF ROLL.—The United 

2 States Office for Native Hawaiian Affairs shall as3 sist the adult members of the Native Hawaiian com4 munity who wish to participate in the reorganization 

5 of a Native Hawaiian government in preparing a roll 

6 for the purpose of the organization of a Native Ha7 waiian Interim Governing Council. The roll shall in8 clude the names of the— 

9 (A) adult members of the Native Hawaiian 

10 community who wish to become citizens of a 

11 Native Hawaiian government and who are— 

12 (i) the lineal descendants of the ab13 original, indigenous, native people who re14 sided in the islands that now comprise the 

15 State of Hawaii on or before January 1, 

16 1893, and who occupied and exercised sov17 ereignty in the Hawaiian archipelago; or 

18 (ii) Native Hawaiians who were eligi19 ble in 1921 for the programs authorized by 

20 the Hawaiian Homes Commission Act (42 

21 Stat. 108, chapter 42) or their lineal de22 scendants; and 

23 (B) the children of the adult members list24 ed on the roll prepared under this subsection. 

25 (2) CERTIFICATION AND SUBMISSION.— 


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1 (A) COMMISSION.— 

2 (i) IN GENERAL.—There is authorized 

3 to be established a Commission to be com4 posed of 9 members for the purpose of cer5 tifying that the adult members of the Na6 tive Hawaiian community on the roll meet 

7 the definition of Native Hawaiian, as de8 fined in section 2(7)(A) of this Act. 

9 (ii) MEMBERSHIP.— 

10 (I) APPOINTMENT.—The Sec11 retary shall appoint the members of 

12 the Commission in accordance with 

13 subclause (II). Any vacancy on the 

14 Commission shall not affect its powers 

15 and shall be filled in the same manner 

16 as the original appointment. 

17 (II) REQUIREMENTS.—The mem18 bers of the Commission shall be Na19 tive Hawaiian, as defined in section 

20 2(7)(A) of this Act, and shall have ex21 pertise in the certification of Native 

22 Hawaiian ancestry. 

23 (III) CONGRESSIONAL SUBMIS24 SION OF SUGGESTED CANDIDATES.— 

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1 mission, the Secretary may choose 

2 such members from among— 

3 (aa) five suggested can4 didates submitted by the majority 

5 leader of the Senate and the mi6 nority leader of the Senate from 

7 a list of candidates provided to 

8 such leaders by the Chairman 

9 and Vice Chairman of the Com10 mittee on Indian Affairs of the 

11 Senate; and 

12 (bb) four suggested can13 didates submitted by the Speaker 

14 of the House of Representatives 

15 and the minority leader of the 

16 House of Representatives from a 

17 list provided to the Speaker and 

18 the minority leader by the Chair19 man and Ranking member of the 

20 Committee on Resources of the 

21 House of Representatives. 

22 (iii) EXPENSES.—Each member of the 

23 Commission shall be allowed travel ex24 penses, including per diem in lieu of sub25 sistence, at rates authorized for employees 


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1 of agencies under subchapter I of chapter 

2 57 of title 5, United States Code, while 

3 away from their homes or regular places of 

4 business in the performance of services for 

5 the Commission. 

6 (B) CERTIFICATION.—The Commission 

7 shall certify that the individuals listed on the 

8 roll developed under the authority of this sub9 section are Native Hawaiians, as defined in sec10 tion 2(7)(A) of this Act. 

11 (3) SECRETARY.— 

12 (A) CERTIFICATION.—The Secretary shall 

13 review the Commission’s certification of the 

14 membership roll and determine whether it is 

15 consistent with applicable Federal law, includ16 ing the special trust relationship between the 

17 United States and the indigenous, native people 

18 of the United States. 

19 (B) PUBLICATION.—Upon making the de20 termination authorized in subparagraph (A), 

21 the Secretary shall publish a final roll. 

22 (C) APPEAL.— 

23 (i) ESTABLISHMENT OF MECHA24 NISM.—The Secretary is authorized to es25 tablish a mechanism for an appeal of the 


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1 Commission’s determination as it con2 cerns— 

3 (I) the exclusion of the name of 

4 a person who meets the definition of 

5 Native Hawaiian, as defined in section 

6 2(7)(A) of this Act, from the roll; or 

7 (II) a challenge to the inclusion 

8 of the name of a person on the roll on 

9 the grounds that the person does not 

10 meet the definition of Native Hawai11 ian, as so defined. 

12 (ii) PUBLICATION; UPDATE.—The 

13 Secretary shall publish the final roll while 

14 appeals are pending, and shall update the 

15 final roll and the publication of the final 

16 roll upon the final disposition of any ap17 peal. 

18 (D) FAILURE TO ACT.—If the Secretary 

19 fails to make the certification authorized in 

20 subparagraph (A) within 90 days of the date 

21 that the Commission submits the membership 

22 roll to the Secretary, the certification shall be 

23 deemed to have been made, and the Commis24 sion shall publish the final roll. 


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1 (4) EFFECT OF PUBLICATION.—The publication 

2 of the final roll shall serve as the basis for the eligi3 bility of adult members listed on the roll to partici4 pate in all referenda and elections associated with 

5 the organization of a Native Hawaiian Interim Gov6 erning Council and the Native Hawaiian govern7 ment. 

8 (b) RECOGNITION OF RIGHTS.—The right of the Na9 tive Hawaiian people to organize for their common welfare 

10 and to adopt appropriate organic governing documents is 

11 hereby recognized by the United States. 

12 (c) ORGANIZATION OF THE NATIVE HAWAIIAN IN13 TERIM GOVERNING COUNCIL.— 

14 (1) ORGANIZATION.—The adult members listed 

15 on the roll developed under the authority of sub16 section (a) are authorized to— 

17 (A) develop criteria for candidates to be 

18 elected to serve on the Native Hawaiian Interim 

19 Governing Council; 

20 (B) determine the structure of the Native 

21 Hawaiian Interim Governing Council; and 

22 (C) elect members to the Native Hawaiian 

23 Interim Governing Council. 

24 (2) ELECTION.—Upon the request of the adult 

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1 thority of subsection (a), the United States Office 

2 for Native Hawaiian Affairs may assist the Native 

3 Hawaiian community in holding an election by secret 

4 ballot (absentee and mail balloting permitted), to 

5 elect the membership of the Native Hawaiian In6 terim Governing Council. 

7 (3) POWERS.— 

8 (A) IN GENERAL.—The Native Hawaiian 

9 Interim Governing Council is authorized to rep10 resent those on the roll in the implementation 

11 of this Act and shall have no powers other than 

12 those given to it in accordance with this Act. 

13 (B) FUNDING.—The Native Hawaiian In14 terim Governing Council is authorized to enter 

15 into a contract or grant with any Federal agen16 cy, including but not limited to, the United 

17 States Office for Native Hawaiian Affairs with18 in the Department of the Interior and the Ad19 ministration for Native Americans within the 

20 Department of Health and Human Services, to 

21 carry out the activities set forth in subpara22 graph (C). 

23 (C) ACTIVITIES.— 

24 (i) IN GENERAL.—The Native Hawai25 ian Interim Governing Council is authorVerDate Nov 24 2008 01:39 Feb 07, 2009 Jkt 079200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H862.IH H862

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1 ized to conduct a referendum of the adult 

2 members listed on the roll developed under 

3 the authority of subsection (a) for the pur4 pose of determining (but not limited to) 

5 the following: 

6 (I) The proposed elements of the 

7 organic governing documents of a Na8 tive Hawaiian government. 

9 (II) The proposed powers and 

10 authorities to be exercised by a Native 

11 Hawaiian government, as well as the 

12 proposed privileges and immunities of 

13 a Native Hawaiian government. 

14 (III) The proposed civil rights 

15 and protection of such rights of the 

16 citizens of a Native Hawaiian govern17 ment and all persons subject to the 

18 authority of a Native Hawaiian gov19 ernment. 

20 (ii) DEVELOPMENT OF ORGANIC GOV21 ERNING DOCUMENTS.—Based upon the 

22 referendum, the Native Hawaiian Interim 

23 Governing Council is authorized to develop 

24 proposed organic governing documents for 

25 a Native Hawaiian government. 


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1 (iii) DISTRIBUTION.—The Native Ha2 waiian Interim Governing Council is au3 thorized to distribute to all adult members 

4 of those listed on the roll, a copy of the 

5 proposed organic governing documents, as 

6 drafted by the Native Hawaiian Interim 

7 Governing Council, along with a brief im8 partial description of the proposed organic 

9 governing documents. 

10 (iv) CONSULTATION.—The Native Ha11 waiian Interim Governing Council is au12 thorized to freely consult with those mem13 bers listed on the roll concerning the text 

14 and description of the proposed organic 

15 governing documents. 

16 (D) ELECTIONS.— 

17 (i) IN GENERAL.—The Native Hawai18 ian Interim Governing Council is author19 ized to hold elections for the purpose of 

20 ratifying the proposed organic governing 

21 documents, and upon ratification of the or22 ganic governing documents, to hold elec23 tions for the officers of the Native Hawai24 ian government. 


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1 (ii) ASSISTANCE.—Upon the request 

2 of the Native Hawaiian Interim Governing 

3 Council, the United States Office of Native 

4 Hawaiian Affairs may assist the Council in 

5 conducting such elections. 

6 (4) TERMINATION.—The Native Hawaiian In7 terim Governing Council shall have no power or au8 thority under this Act after the time at which the 

9 duly elected officers of the Native Hawaiian govern10 ment take office. 

11 (d) RECOGNITION OF THE NATIVE HAWAIIAN GOV12 ERNMENT.— 

13 (1) PROCESS FOR RECOGNITION.— 

14 (A) SUBMITTAL OF ORGANIC GOVERNING

15 DOCUMENTS.—The duly elected officers of the 

16 Native Hawaiian government shall submit the 

17 organic governing documents of the Native Ha18 waiian government to the Secretary. 

19 (B) CERTIFICATIONS.—Within 90 days of 

20 the date that the duly elected officers of the 

21 Native Hawaiian government submit the or22 ganic governing documents to the Secretary, 

23 the Secretary shall certify that the organic gov24 erning documents— 


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1 (i) were adopted by a majority vote of 

2 the adult members listed on the roll pre3 pared under the authority of subsection 

4 (a); 

5 (ii) are consistent with applicable Fed6 eral law and the special trust relationship 

7 between the United States and the indige8 nous native people of the United States; 

9 (iii) provide for the exercise of those 

10 governmental authorities that are recog11 nized by the United States as the powers 

12 and authorities that are exercised by other 

13 governments representing the indigenous, 

14 native people of the United States; 

15 (iv) provide for the protection of the 

16 civil rights of the citizens of the Native 

17 Hawaiian government and all persons sub18 ject to the authority of the Native Hawai19 ian government, and to assure that the 

20 Native Hawaiian government exercises its 

21 authority consistent with the requirements 

22 of section 202 of the Act of April 11, 1968 

23 (25 U.S.C. 1302); 

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

25 or encumbrance of lands, interests in 


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1 lands, or other assets of the Native Hawai2 ian government without the consent of the 

3 Native Hawaiian government; 

4 (vi) establish the criteria for citizen5 ship in the Native Hawaiian government; 

6 and 

7 (vii) provide authority for the Native 

8 Hawaiian government to negotiate with 

9 Federal, State, and local governments, and 

10 other entities. 

11 (C) FAILURE TO ACT.—If the Secretary 

12 fails to act within 90 days of the date that the 

13 duly elected officers of the Native Hawaiian 

14 government submitted the organic governing 

15 documents of the Native Hawaiian government 

16 to the Secretary, the certifications authorized in 

17 subparagraph (B) shall be deemed to have been 

18 made. 

19 (D) RESUBMISSION IN CASE OF NON20 COMPLIANCE WITH FEDERAL LAW.— 

21 (i) RESUBMISSION BY THE SEC22 RETARY.—If the Secretary determines that 

23 the organic governing documents, or any 

24 part thereof, are not consistent with appli25 cable Federal law, the Secretary shall reVerDate Nov 24 2008 01:39 Feb 07, 2009 Jkt 079200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\H862.IH H862

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1 submit the organic governing documents to 

2 the duly elected officers of the Native Ha3 waiian government along with a justifica4 tion for each of the Secretary’s findings as 

5 to why the provisions are not consistent 

6 with such law. 

7 (ii) AMENDMENT AND RESUBMISSION

8 BY THE NATIVE HAWAIIAN GOVERN9 MENT.—If the organic governing docu10 ments are resubmitted to the duly elected 

11 officers of the Native Hawaiian govern12 ment by the Secretary under clause (i), the 

13 duly elected officers of the Native Hawai14 ian government shall— 

15 (I) amend the organic governing 

16 documents to ensure that the docu17 ments comply with applicable Federal 

18 law; and 

19 (II) resubmit the amended or20 ganic governing documents to the Sec21 retary for certification in accordance 

22 with subparagraphs (B) and (C). 

23 (2) FEDERAL RECOGNITION.— 

24 (A) RECOGNITION.—Notwithstanding any 

25 other provision of law, upon the election of the 


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1 officers of the Native Hawaiian government and 

2 the certifications (or deemed certifications) by 

3 the Secretary authorized in paragraph (1), Fed4 eral recognition is hereby extended to the Na5 tive Hawaiian government as the representative 

6 governing body of the Native Hawaiian people. 

7 (B) NO DIMINISHMENT OF RIGHTS OR

8 PRIVILEGES.—Nothing contained in this Act 

9 shall diminish, alter, or amend any existing 

10 rights or privileges enjoyed by the Native Ha11 waiian people which are not inconsistent with 

12 the provisions of this Act. 

13 SEC. 8. AUTHORIZATION OF APPROPRIATIONS. 

14 There is authorized to be appropriated such sums as 

15 may be necessary to carry out the activities authorized in 

16 this Act. 

17 SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AU18 THORITY; NEGOTIATIONS. 

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

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

21 conditions of Native Hawaiians contained in the Act enti22 tled ‘‘An Act to provide for the admission of the State 

23 of Hawaii into the Union’’ approved March 18, 1959 

24 (Public Law 86–3; 73 Stat. 5) is hereby reaffirmed. 


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1 (b) NEGOTIATIONS.—Upon the Federal recognition 

2 of the Native Hawaiian government pursuant to section 

3 7(d)(2) of this Act, the United States is authorized to ne4 gotiate and enter into an agreement with the State of Ha5 waii and the Native Hawaiian government regarding the 

6 transfer of lands, resources, and assets dedicated to Na7 tive Hawaiian use under existing law as in effect on the 

8 date of enactment of this Act to the Native Hawaiian gov9 ernment. 

10 SEC. 10. DISCLAIMER. 

11 Nothing in this Act is intended to serve as a settle12 ment of any claims against the United States, or to affect 

13 the rights of the Native Hawaiian people under inter14 national law. 

15 SEC. 11. REGULATIONS. 

16 The Secretary is authorized to make such rules and 

17 regulations and such delegations of authority as the Sec18 retary deems necessary to carry out the provisions of this 

19 Act. 

20 SEC. 12. SEVERABILITY. 

21 In the event that any section or provision of this Act, 

22 or any amendment made by this Act is held invalid, it 

23 is the intent of Congress that the remaining sections or 


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1 provisions of this Act, and the amendments made by this 

2 Act, shall continue in full force and effect. 

Æ 


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