II 

Calendar No. 314 

111TH CONGRESS 

2D SESSION S. 1011 

[Report No. 111–162] 

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

relationship with Native Hawaiians and to provide a process for the 

recognition by the United States of the Native Hawaiian governing 

entity. 

IN THE SENATE OF THE UNITED STATES 

MAY 7, 2009 

Mr. AKAKA (for himself, Mr. INOUYE, Mr. DORGAN, Ms. MURKOWSKI, and 

Mr. BEGICH) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs 

MARCH 11, 2010 

Reported by Mr. DORGAN, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To express the policy of the United States regarding the 

United States relationship with Native Hawaiians and 

to provide a process for the recognition by the United 

States of the Native Hawaiian governing entity. 

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


srobinson on DSKHWCL6B1PROD with BILLS
2 

•S 1011 RS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Native Hawaiian Gov3 ernment Reorganization Act of 2009’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds that— 

6 (1) the Constitution vests Congress with the au7 thority to address the conditions of the indigenous, 

8 native people of the United States; 

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

10 Hawaiian archipelago that is now part of the United 

11 States, are indigenous, native people of the United 

12 States; 

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

14 legal relationship to promote the welfare of the na15 tive people of the United States, including Native 

16 Hawaiians; 

17 (4) under the treaty making power of the 

18 United States, Congress exercised its constitutional 

19 authority to confirm treaties between the United 

20 States and the Kingdom of Hawaii, and from 1826 

21 until 1893, the United States— 

22 (A) recognized the sovereignty of the King23 dom of Hawaii; 

24 (B) accorded full diplomatic recognition to 

25 the Kingdom of Hawaii; and 


srobinson on DSKHWCL6B1PROD with BILLS
3 

•S 1011 RS

1 (C) entered into treaties and conventions 

2 with the Kingdom of Hawaii to govern com3 merce and navigation in 1826, 1842, 1849, 

4 1875, and 1887; 

5 (5) pursuant to the Hawaiian Homes Commis6 sion Act, 1920 (42 Stat. 108, chapter 42), the 

7 United States set aside approximately 203,500 acres 

8 of land to address the conditions of Native Hawai9 ians in the Federal territory that later became the 

10 State of Hawaii; 

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

12 Native Hawaiian homesteads and farms, the Hawai13 ian Homes Commission Act assists the members of 

14 the Native Hawaiian community in maintaining dis15 tinct native settlements throughout the State of Ha16 waii; 

17 (7) approximately 6,800 Native Hawaiian fami18 lies reside on the Hawaiian Home Lands and ap19 proximately 18,000 Native Hawaiians who are eligi20 ble to reside on the Hawaiian Home Lands are on 

21 a waiting list to receive assignments of Hawaiian 

22 Home Lands; 

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

24 United States admitting Hawaii into the Union, 

25 Congress established a public trust (commonly 


srobinson on DSKHWCL6B1PROD with BILLS
4 

•S 1011 RS

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

2 1 of which is the betterment of the conditions of Na3 tive Hawaiians; 

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

5 submerged lands, natural resources, and the reve6 nues derived from the lands; and 

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

8 been completely inventoried or segregated; 

9 (9) Native Hawaiians have continuously sought 

10 access to the ceded lands in order to establish and 

11 maintain native settlements and distinct native com12 munities throughout the State; 

13 (10) the Hawaiian Home Lands and other 

14 ceded lands provide an important foundation for the 

15 ability of the Native Hawaiian community to main16 tain the practice of Native Hawaiian culture, lan17 guage, and traditions, and for the survival and eco18 nomic self-sufficiency of the Native Hawaiian people; 

19 (11) Native Hawaiians continue to maintain 

20 other distinctly native areas in Hawaii; 

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

22 150 (107 Stat. 1510) (commonly known as the 

23 ‘‘Apology Resolution’’) was enacted into law, extend24 ing an apology on behalf of the United States to the 


srobinson on DSKHWCL6B1PROD with BILLS
5 

•S 1011 RS

1 native people of Hawaii for the United States role 

2 in the overthrow of the Kingdom of Hawaii; 

3 (13) the Apology Resolution acknowledges that 

4 the overthrow of the Kingdom of Hawaii occurred 

5 with the active participation of agents and citizens 

6 of the United States and further acknowledges that 

7 the Native Hawaiian people never directly relin8 quished to the United States their claims to their in9 herent sovereignty as a people over their national 

10 lands, either through the Kingdom of Hawaii or 

11 through a plebiscite or referendum; 

12 (14) the Apology Resolution expresses the com13 mitment of Congress and the President— 

14 (A) to acknowledge the ramifications of the 

15 overthrow of the Kingdom of Hawaii; 

16 (B) to support reconciliation efforts be17 tween the United States and Native Hawaiians; 

18 and 

19 (C) to consult with Native Hawaiians on 

20 the reconciliation process as called for in the 

21 Apology Resolution; 

22 (15) despite the overthrow of the Government 

23 of the Kingdom of Hawaii, Native Hawaiians have 

24 continued to maintain their separate identity as a 

25 single distinct native community through cultural, 


srobinson on DSKHWCL6B1PROD with BILLS
6 

•S 1011 RS

1 social, and political institutions, and to give expres2 sion to their rights as native people to self-deter3 mination, self-governance, and economic self-suffi4 ciency; 

5 (16) Native Hawaiians have also given expres6 sion to their rights as native people to self-deter7 mination, self-governance, and economic self-suffi8 ciency— 

9 (A) through the provision of governmental 

10 services to Native Hawaiians, including the pro11 vision of— 

12 (i) health care services; 

13 (ii) educational programs; 

14 (iii) employment and training pro15 grams; 

16 (iv) economic development assistance 

17 programs; 

18 (v) children’s services; 

19 (vi) conservation programs; 

20 (vii) fish and wildlife protection; 

21 (viii) agricultural programs; 

22 (ix) native language immersion pro23 grams; 

24 (x) native language immersion schools 

25 from kindergarten through high school; 


srobinson on DSKHWCL6B1PROD with BILLS
7 

•S 1011 RS

1 (xi) college and master’s degree pro2 grams in native language immersion in3 struction; and 

4 (xii) traditional justice programs; and 

5 (B) by continuing their efforts to enhance 

6 Native Hawaiian self-determination and local 

7 control; 

8 (17) Native Hawaiians are actively engaged in 

9 Native Hawaiian cultural practices, traditional agri10 cultural methods, fishing and subsistence practices, 

11 maintenance of cultural use areas and sacred sites, 

12 protection of burial sites, and the exercise of their 

13 traditional rights to gather medicinal plants and 

14 herbs, and food sources; 

15 (18) the Native Hawaiian people wish to pre16 serve, develop, and transmit to future generations of 

17 Native Hawaiians their lands and Native Hawaiian 

18 political and cultural identity in accordance with 

19 their traditions, beliefs, customs and practices, lan20 guage, and social and political institutions, to con21 trol and manage their own lands, including ceded 

22 lands, and to achieve greater self-determination over 

23 their own affairs; 

24 (19) this Act provides a process within the 

25 framework of Federal law for the Native Hawaiian 


srobinson on DSKHWCL6B1PROD with BILLS
8 

•S 1011 RS

1 people to exercise their inherent rights as a distinct, 

2 indigenous, native community to reorganize a single 

3 Native Hawaiian governing entity for the purpose of 

4 giving expression to their rights as native people to 

5 self-determination and self-governance; 

6 (20) Congress— 

7 (A) has declared that the United States 

8 has a special political and legal relationship for 

9 the welfare of the native peoples of the United 

10 States, including Native Hawaiians; 

11 (B) has identified Native Hawaiians as a 

12 distinct group of indigenous, native people of 

13 the United States within the scope of its au14 thority under the Constitution, and has enacted 

15 scores of statutes on their behalf; and 

16 (C) has delegated broad authority to the 

17 State of Hawaii to administer some of the 

18 United States responsibilities as they relate to 

19 the Native Hawaiian people and their lands; 

20 (21) the United States has recognized and re21 affirmed the special political and legal relationship 

22 with the Native Hawaiian people through the enact23 ment of the Act entitled, ‘‘An Act to provide for the 

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


srobinson on DSKHWCL6B1PROD with BILLS
9 

•S 1011 RS

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

2 Stat. 4), by— 

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

4 the public lands formerly held by the United 

5 States, and mandating that those lands be held 

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

7 for the betterment of the conditions of Native 

8 Hawaiians; and 

9 (B) transferring the United States respon10 sibility for the administration of the Hawaiian 

11 Home Lands to the State of Hawaii, but retain12 ing the exclusive right of the United States to 

13 consent to any actions affecting the lands in14 cluded in the trust and any amendments to the 

15 Hawaiian Homes Commission Act, 1920 (42 

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

17 legislature of the State of Hawaii affecting the 

18 beneficiaries under the Act; 

19 (22) the United States has continually recog20 nized and reaffirmed that— 

21 (A) Native Hawaiians have a cultural, his22 toric, and land-based link to the aboriginal, in23 digenous, native people who exercised sov24 ereignty over the Hawaiian Islands; 


srobinson on DSKHWCL6B1PROD with BILLS
10 

•S 1011 RS

1 (B) Native Hawaiians have never relin2 quished their claims to sovereignty or their sov3 ereign lands; 

4 (C) the United States extends services to 

5 Native Hawaiians because of their unique sta6 tus as the indigenous, native people of a once7 sovereign nation with whom the United States 

8 has a special political and legal relationship; 

9 and 

10 (D) the special relationship of American 

11 Indians, Alaska Natives, and Native Hawaiians 

12 to the United States arises out of their status 

13 as aboriginal, indigenous, native people of the 

14 United States; and 

15 (23) the State of Hawaii supports the reaffir16 mation of the special political and legal relationship 

17 between the Native Hawaiian governing entity and 

18 the United States as evidenced by 2 unanimous reso19 lutions enacted by the Hawaii State Legislature in 

20 the 2000 and 2001 sessions of the Legislature and 

21 by the testimony of the Governor of the State of Ha22 waii before the Committee on Indian Affairs of the 

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

24 SEC. 3. DEFINITIONS. 

25 In this Act: 


srobinson on DSKHWCL6B1PROD with BILLS
11 

•S 1011 RS

1 (1) ABORIGINAL, INDIGENOUS, NATIVE PEO2 PLE.—The term ‘‘aboriginal, indigenous, native peo3 ple’’ means people whom Congress has recognized as 

4 the original inhabitants of the lands that later be5 came part of the United States and who exercised 

6 sovereignty in the areas that later became part of 

7 the United States. 

8 (2) ADULT MEMBER.—The term ‘‘adult mem9 ber’’ means a Native Hawaiian who has attained the 

10 age of 18 and who elects to participate in the reor11 ganization of the Native Hawaiian governing entity. 

12 (3) APOLOGY RESOLUTION.—The term ‘‘Apol13 ogy Resolution’’ means Public Law 103–150 (107 

14 Stat. 1510), a Joint Resolution extending an apol15 ogy to Native Hawaiians on behalf of the United 

16 States for the participation of agents of the United 

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

18 Kingdom of Hawaii. 

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

20 means the Commission established under section 

21 7(b) to provide for the certification that those adult 

22 members of the Native Hawaiian community listed 

23 on the roll meet the definition of Native Hawaiian 

24 set forth in paragraph (10). 


srobinson on DSKHWCL6B1PROD with BILLS
12 

•S 1011 RS

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

2 Native Hawaiian Interim Governing Council estab3 lished under section 7(c)(2). 

4 (6) INDIAN PROGRAM OR SERVICE.— 

5 (A) IN GENERAL.—The term ‘‘Indian pro6 gram or service’’ means any federally funded or 

7 authorized program or service provided to an 

8 Indian tribe (or member of an Indian tribe) be9 cause of the status of the members of the In10 dian tribe as Indians. 

11 (B) INCLUSIONS.—The term ‘‘Indian pro12 gram or service’’ includes a program or service 

13 provided by the Bureau of Indian Affairs, the 

14 Indian Health Service, or any other Federal 

15 agency. 

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

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

18 Indian Self-Determination and Education Assistance 

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

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

21 ‘‘indigenous, native people’’ means the lineal de22 scendants of the aboriginal, indigenous, native peo23 ple of the United States. 

24 (9) INTERAGENCY COORDINATING GROUP.—The 

25 term ‘‘Interagency Coordinating Group’’ means the 


srobinson on DSKHWCL6B1PROD with BILLS
13 

•S 1011 RS

1 Native Hawaiian Interagency Coordinating Group 

2 established under section 6. 

3 (10) NATIVE HAWAIIAN.— 

4 (A) IN GENERAL.—Subject to subpara5 graph (B), for the purpose of establishing the 

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

7 the reaffirmation of the special political and 

8 legal relationship between the United States 

9 and the Native Hawaiian governing entity, the 

10 term ‘‘Native Hawaiian’’ means— 

11 (i) an individual who is 1 of the indig12 enous, native people of Hawaii and who is 

13 a direct lineal descendant of the aboriginal, 

14 indigenous, native people who— 

15 (I) resided in the islands that 

16 now comprise the State of Hawaii on 

17 or before January 1, 1893; and 

18 (II) occupied and exercised sov19 ereignty in the Hawaiian archipelago, 

20 including the area that now con21 stitutes the State of Hawaii; or 

22 (ii) an individual who is 1 of the in23 digenous, native people of Hawaii and who 

24 was eligible in 1921 for the programs au25 thorized by the Hawaiian Homes CommisVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6401 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
14 

•S 1011 RS

1 sion Act (42 Stat. 108, chapter 42) or a 

2 direct lineal descendant of that individual. 

3 (B) NO EFFECT ON OTHER DEFINI4 TIONS.—Nothing in this paragraph affects the 

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

6 any other Federal or State law (including a reg7 ulation). 

8 (11) NATIVE HAWAIIAN GOVERNING ENTITY.— 

9 The term ‘‘Native Hawaiian Governing Entity’’ 

10 means the governing entity organized by the Native 

11 Hawaiian people pursuant to this Act. 

12 (12) NATIVE HAWAIIAN PROGRAM OR SERV13 ICE.—The term ‘‘Native Hawaiian program or serv14 ice’’ means any program or service provided to Na15 tive Hawaiians because of their status as Native Ha16 waiians. 

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

18 United States Office for Native Hawaiian Relations 

19 established by section 5(a). 

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

21 means the Secretary of the Interior. 

22 (15) SPECIAL POLITICAL AND LEGAL RELA23 TIONSHIP.—The term ‘‘special political and legal re24 lationship’’ shall refer, except where differences are 

25 specifically indicated elsewhere in the Act, to the 


srobinson on DSKHWCL6B1PROD with BILLS
15 

•S 1011 RS

1 type of and nature of relationship the United States 

2 has with the several federally recognized Indian 

3 tribes. 

4 SEC. 4. UNITED STATES POLICY AND PURPOSE. 

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

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

7 indigenous, native people with whom the United 

8 States has a special political and legal relationship; 

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

10 legal relationship with the Native Hawaiian people 

11 which includes promoting the welfare of Native Ha12 waiians; 

13 (3) Congress possesses the authority under the 

14 Constitution, including but not limited to Article I, 

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

16 the conditions of Native Hawaiians and has exer17 cised this authority through the enactment of— 

18 (A) the Hawaiian Homes Commission Act, 

19 1920 (42 Stat. 108, chapter 42); 

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

21 the admission of the State of Hawaii into the 

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

23 86–3, 73 Stat. 4); and 

24 (C) more than 150 other Federal laws ad25 dressing the conditions of Native Hawaiians; 


srobinson on DSKHWCL6B1PROD with BILLS
16 

•S 1011 RS

1 (4) Native Hawaiians have— 

2 (A) an inherent right to autonomy in their 

3 internal affairs; 

4 (B) an inherent right of self-determination 

5 and self-governance; 

6 (C) the right to reorganize a Native Ha7 waiian governing entity; and 

8 (D) the right to become economically self9 sufficient; and 

10 (5) the United States shall continue to engage 

11 in a process of reconciliation and political relations 

12 with the Native Hawaiian people. 

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

14 a process for the reorganization of the single Native Ha15 waiian governing entity and the reaffirmation of the spe16 cial political and legal relationship between the United 

17 States and that Native Hawaiian governing entity for pur18 poses of continuing a government-to-government relation19 ship. 

20 SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RE21 LATIONS. 

22 (a) ESTABLISHMENT.—There is established within 

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

24 Native Hawaiian Relations. 

25 (b) DUTIES.—The Office shall— 


srobinson on DSKHWCL6B1PROD with BILLS
17 

•S 1011 RS

1 (1) continue the process of reconciliation with 

2 the Native Hawaiian people in furtherance of the 

3 Apology Resolution; 

4 (2) upon the reaffirmation of the special polit5 ical and legal relationship between the single Native 

6 Hawaiian governing entity and the United States, 

7 effectuate and coordinate the special political and 

8 legal relationship between the Native Hawaiian gov9 erning entity and the United States through the 

10 Secretary, and with all other Federal agencies; 

11 (3) fully integrate the principle and practice of 

12 meaningful, regular, and appropriate consultation 

13 with the Native Hawaiian governing entity by pro14 viding timely notice to, and consulting with, the Na15 tive Hawaiian people and the Native Hawaiian gov16 erning entity before taking any actions that may 

17 have the potential to significantly affect Native Ha18 waiian resources, rights, or lands; 

19 (4) consult with the Interagency Coordinating 

20 Group, other Federal agencies, and the State of Ha21 waii on policies, practices, and proposed actions af22 fecting Native Hawaiian resources, rights, or lands; 

23 and 

24 (5) prepare and submit to the Committee on 

25 Indian Affairs and the Committee on Energy and 


srobinson on DSKHWCL6B1PROD with BILLS
18 

•S 1011 RS

1 Natural Resources of the Senate and the Committee 

2 on Resources of the House of Representatives an an3 nual report detailing the activities of the Interagency 

4 Coordinating Group that are undertaken with re5 spect to the continuing process of reconciliation and 

6 to effect meaningful consultation with the Native 

7 Hawaiian governing entity and providing rec8 ommendations for any necessary changes to Federal 

9 law or regulations promulgated under the authority 

10 of Federal law. 

11 (c) APPLICABILITY TO DEPARTMENT OF DE12 FENSE.—This section shall have no applicability to the 

13 Department of Defense or to any agency or component 

14 of the Department of Defense, but the Secretary of De15 fense may designate 1 or more officials as liaison to the 

16 Office. 

17 SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING 

18 GROUP. 

19 (a) ESTABLISHMENT.—In recognition that Federal 

20 programs authorized to address the conditions of Native 

21 Hawaiians are largely administered by Federal agencies 

22 other than the Department of the Interior, there is estab23 lished an interagency coordinating group to be known as 

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


srobinson on DSKHWCL6B1PROD with BILLS
19 

•S 1011 RS

1 (b) COMPOSITION.—The Interagency Coordinating 

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

3 the President, from— 

4 (1) each Federal agency that administers Na5 tive Hawaiian programs, establishes or implements 

6 policies that affect Native Hawaiians, or whose ac7 tions may significantly or uniquely impact Native 

8 Hawaiian resources, rights, or lands; and 

9 (2) the Office. 

10 (c) LEAD AGENCY.— 

11 (1) IN GENERAL.—The Department of the Inte12 rior shall serve as the lead agency of the Interagency 

13 Coordinating Group. 

14 (2) MEETINGS.—The Secretary shall convene 

15 meetings of the Interagency Coordinating Group. 

16 (d) DUTIES.—The Interagency Coordinating Group 

17 shall— 

18 (1) coordinate Federal programs and policies 

19 that affect Native Hawaiians or actions by any agen20 cy or agencies of the Federal Government that may 

21 significantly or uniquely affect Native Hawaiian re22 sources, rights, or lands; 

23 (2) consult with the Native Hawaiian governing 

24 entity, through the coordination referred to in sec25 tion 6(d)(1), but the consultation obligation estabVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6401 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
20 

•S 1011 RS

1 lished in this provision shall apply only after the sat2 isfaction of all of the conditions referred to in sec3 tion 7(c)(6); and 

4 (3) ensure the participation of each Federal 

5 agency in the development of the report to Congress 

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

7 (e) APPLICABILITY TO DEPARTMENT OF DE8 FENSE.—This section shall have no applicability to the 

9 Department of Defense or to any agency or component 

10 of the Department of Defense, but the Secretary of De11 fense may designate 1 or more officials as liaison to the 

12 Interagency Coordinating Group. 

13 SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NA14 TIVE HAWAIIAN GOVERNING ENTITY AND 

15 THE REAFFIRMATION OF THE SPECIAL PO16 LITICAL AND LEGAL RELATIONSHIP BE17 TWEEN THE UNITED STATES AND THE NA18 TIVE HAWAIIAN GOVERNING ENTITY. 

19 (a) RECOGNITION OF THE NATIVE HAWAIIAN GOV20 ERNING ENTITY.—The right of the Native Hawaiian peo21 ple to reorganize the single Native Hawaiian governing en22 tity to provide for their common welfare and to adopt ap23 propriate organic governing documents is recognized by 

24 the United States. 

25 (b) COMMISSION.— 


srobinson on DSKHWCL6B1PROD with BILLS
21 

•S 1011 RS

1 (1) IN GENERAL.—There is authorized to be es2 tablished a Commission to be composed of 9 mem3 bers for the purposes of— 

4 (A) preparing and maintaining a roll of the 

5 adult members of the Native Hawaiian commu6 nity who elect to participate in the reorganiza7 tion of the single Native Hawaiian governing 

8 entity; and 

9 (B) certifying that the adult members of 

10 the Native Hawaiian community proposed for 

11 inclusion on the roll meet the definition of Na12 tive Hawaiian in section 3(10). 

13 (2) MEMBERSHIP.— 

14 (A) APPOINTMENT.— 

15 (i) IN GENERAL.—Not later than 180 

16 days after the date of enactment of this 

17 Act, the Secretary shall appoint the mem18 bers of the Commission in accordance with 

19 subparagraph (B). 

20 (ii) CONSIDERATION.—In making an 

21 appointment under clause (i), the Sec22 retary may take into consideration a rec23 ommendation made by any Native Hawai24 ian organization. 


srobinson on DSKHWCL6B1PROD with BILLS
22 

•S 1011 RS

1 (B) REQUIREMENTS.—Each member of 

2 the Commission shall demonstrate, as deter3 mined by the Secretary— 

4 (i) not less than 10 years of experi5 ence in the study and determination of Na6 tive Hawaiian genealogy; and 

7 (ii) an ability to read and translate 

8 into English documents written in the Ha9 waiian language. 

10 (C) VACANCIES.—A vacancy on the Com11 mission— 

12 (i) shall not affect the powers of the 

13 Commission; and 

14 (ii) shall be filled in the same manner 

15 as the original appointment. 

16 (3) EXPENSES.—Each member of the Commis17 sion shall be allowed travel expenses, including per 

18 diem in lieu of subsistence, at rates authorized for 

19 employees of agencies under subchapter I of chapter 

20 57 of title 5, United States Code, while away from 

21 their homes or regular places of business in the per22 formance of services for the Commission. 

23 (4) DUTIES.—The Commission shall— 

24 (A) prepare and maintain a roll of the 

25 adult members of the Native Hawaiian commuVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6401 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
23 

•S 1011 RS

1 nity who elect to participate in the reorganiza2 tion of the Native Hawaiian governing entity; 

3 and 

4 (B) certify that each of the adult members 

5 of the Native Hawaiian community proposed for 

6 inclusion on the roll meets the definition of Na7 tive Hawaiian in section 3(10). 

8 (5) STAFF.— 

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

10 without regard to the civil service laws (includ11 ing regulations), appoint and terminate an exec12 utive director and such other additional per13 sonnel as are necessary to enable the Commis14 sion to perform the duties of the Commission. 

15 (B) COMPENSATION.— 

16 (i) IN GENERAL.—Except as provided 

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

18 compensation of the executive director and 

19 other personnel without regard to the pro20 visions of chapter 51 and subchapter III of 

21 chapter 53 of title 5, United States Code, 

22 relating to classification of positions and 

23 General Schedule pay rates. 

24 (ii) MAXIMUM RATE OF PAY.—The 

25 rate of pay for the executive director and 


srobinson on DSKHWCL6B1PROD with BILLS
24 

•S 1011 RS

1 other personnel shall not exceed the rate 

2 payable for level V of the Executive Sched3 ule under section 5316 of title 5, United 

4 States Code. 

5 (6) DETAIL OF FEDERAL GOVERNMENT EM6 PLOYEES.— 

7 (A) IN GENERAL.—An employee of the 

8 Federal Government may be detailed to the 

9 Commission without reimbursement. 

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

11 the employee shall be without interruption or 

12 loss of civil service status or privilege. 

13 (7) PROCUREMENT OF TEMPORARY AND INTER14 MITTENT SERVICES.—The Commission may procure 

15 temporary and intermittent services in accordance 

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

17 at rates for individuals that do not exceed the daily 

18 equivalent of the annual rate of basic pay prescribed 

19 for level V of the Executive Schedule under section 

20 5316 of that title. 

21 (8) EXPIRATION.—The Secretary shall dissolve 

22 the Commission upon the reaffirmation of the spe23 cial political and legal relationship between the Na24 tive Hawaiian governing entity and the United 

25 States. 


srobinson on DSKHWCL6B1PROD with BILLS
25 

•S 1011 RS

1 (c) PROCESS FOR THE REORGANIZATION OF THE NA2 TIVE HAWAIIAN GOVERNING ENTITY.— 

3 (1) ROLL.— 

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

5 names of the adult members of the Native Ha6 waiian community who elect to participate in 

7 the reorganization of the Native Hawaiian gov8 erning entity and are certified to be Native Ha9 waiian as defined in section 3(10) by the Com10 mission. 

11 (B) FORMATION OF ROLL.—Each adult 

12 member of the Native Hawaiian community 

13 who elects to participate in the reorganization 

14 of the Native Hawaiian governing entity shall 

15 submit to the Commission documentation in the 

16 form established by the Commission that is suf17 ficient to enable the Commission to determine 

18 whether the individual meets the definition of 

19 Native Hawaiian in section 3(10). 

20 (C) DOCUMENTATION.—The Commission 

21 shall— 

22 (i) identify the types of documentation 

23 that may be submitted to the Commission 

24 that would enable the Commission to de25 termine whether an individual meets the 


srobinson on DSKHWCL6B1PROD with BILLS
26 

•S 1011 RS

1 definition of Native Hawaiian in section 

2 3(10); 

3 (ii) establish a standard format for 

4 the submission of documentation; and 

5 (iii) publish information related to 

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

7 (D) CONSULTATION.—In making deter8 minations that each of the adult members of 

9 the Native Hawaiian community proposed for 

10 inclusion on the roll meets the definition of Na11 tive Hawaiian in section 3(10), the Commission 

12 may consult with Native Hawaiian organiza13 tions, agencies of the State of Hawaii including 

14 but not limited to the Department of Hawaiian 

15 Home Lands, the Office of Hawaiian Affairs, 

16 and the State Department of Health, and other 

17 entities with expertise and experience in the de18 termination of Native Hawaiian ancestry and 

19 lineal descendancy. 

20 (E) CERTIFICATION AND SUBMITTAL OF

21 ROLL TO SECRETARY.—The Commission 

22 shall— 

23 (i) submit the roll containing the 

24 names of the adult members of the Native 

25 Hawaiian community who meet the definiVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6401 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
27 

•S 1011 RS

1 tion of Native Hawaiian in section 3(10) to 

2 the Secretary within 2 years from the date 

3 on which the Commission is fully com4 posed; and 

5 (ii) certify to the Secretary that each 

6 of the adult members of the Native Hawai7 ian community proposed for inclusion on 

8 the roll meets the definition of Native Ha9 waiian in section 3(10). 

10 (F) PUBLICATION.—Upon certification by 

11 the Commission to the Secretary that those list12 ed on the roll meet the definition of Native Ha13 waiian in section 3(10), the Secretary shall pub14 lish the roll in the Federal Register. 

15 (G) APPEAL.—The Secretary may estab16 lish a mechanism for an appeal for any person 

17 whose name is excluded from the roll who 

18 claims to meet the definition of Native Hawai19 ian in section 3(10) and to be 18 years of age 

20 or older. 

21 (H) PUBLICATION; UPDATE.—The Sec22 retary shall— 

23 (i) publish the roll regardless of 

24 whether appeals are pending; 


srobinson on DSKHWCL6B1PROD with BILLS
28 

•S 1011 RS

1 (ii) update the roll and the publication 

2 of the roll on the final disposition of any 

3 appeal; and 

4 (iii) update the roll to include any Na5 tive Hawaiian who has attained the age of 

6 18 and who has been certified by the Com7 mission as meeting the definition of Native 

8 Hawaiian in section 3(10) after the initial 

9 publication of the roll or after any subse10 quent publications of the roll. 

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

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

13 after the date on which the roll is submitted to 

14 the Secretary, the Commission shall publish the 

15 roll notwithstanding any order or directive 

16 issued by the Secretary or any other official of 

17 the Department of the Interior to the contrary. 

18 (J) EFFECT OF PUBLICATION.—The publi19 cation of the initial and updated roll shall serve 

20 as the basis for the eligibility of adult members 

21 of the Native Hawaiian community whose 

22 names are listed on those rolls to participate in 

23 the reorganization of the Native Hawaiian gov24 erning entity. 


srobinson on DSKHWCL6B1PROD with BILLS
29 

•S 1011 RS

1 (2) ORGANIZATION OF THE NATIVE HAWAIIAN

2 INTERIM GOVERNING COUNCIL.— 

3 (A) ORGANIZATION.—The adult members 

4 of the Native Hawaiian community listed on the 

5 roll published under this section may— 

6 (i) develop criteria for candidates to 

7 be elected to serve on the Native Hawaiian 

8 Interim Governing Council; 

9 (ii) determine the structure of the 

10 Council; and 

11 (iii) elect members from individuals 

12 listed on the roll published under this sub13 section to the Council. 

14 (B) POWERS.— 

15 (i) IN GENERAL.—The Council— 

16 (I) may represent those listed on 

17 the roll published under this section in 

18 the implementation of this Act; and 

19 (II) shall have no powers other 

20 than powers given to the Council 

21 under this Act. 

22 (ii) FUNDING.—The Council may 

23 enter into a contract with, or obtain a 

24 grant from, any Federal or State agency to 

25 carry out clause (iii). 


srobinson on DSKHWCL6B1PROD with BILLS
30 

•S 1011 RS

1 (iii) ACTIVITIES.— 

2 (I) IN GENERAL.—The Council 

3 may conduct a referendum among the 

4 adult members of the Native Hawai5 ian community listed on the roll pub6 lished under this subsection for the 

7 purpose of determining the proposed 

8 elements of the organic governing doc9 uments of the Native Hawaiian gov10 erning entity, including but not lim11 ited to— 

12 (aa) the proposed criteria 

13 for citizenship of the Native Ha14 waiian governing entity; 

15 (bb) the proposed powers 

16 and authorities to be exercised by 

17 the Native Hawaiian governing 

18 entity, as well as the proposed 

19 privileges and immunities of the 

20 Native Hawaiian governing enti21 ty; 

22 (cc) the proposed civil rights 

23 and protection of the rights of 

24 the citizens of the Native Hawai25 ian governing entity and all perVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6401 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
31 

•S 1011 RS

1 sons affected by the exercise of 

2 governmental powers and au3 thorities of the Native Hawaiian 

4 governing entity; and 

5 (dd) other issues determined 

6 appropriate by the Council. 

7 (II) DEVELOPMENT OF ORGANIC

8 GOVERNING DOCUMENTS.—Based on 

9 the referendum, the Council may de10 velop proposed organic governing doc11 uments for the Native Hawaiian gov12 erning entity. 

13 (III) DISTRIBUTION.—The Coun14 cil may distribute to all adult mem15 bers of the Native Hawaiian commu16 nity listed on the roll published under 

17 this subsection— 

18 (aa) a copy of the proposed 

19 organic governing documents, as 

20 drafted by the Council; and 

21 (bb) a brief impartial de22 scription of the proposed organic 

23 governing documents; 

24 (IV) ELECTIONS.—The Council 

25 may hold elections for the purpose of 


srobinson on DSKHWCL6B1PROD with BILLS
32 

•S 1011 RS

1 ratifying the proposed organic gov2 erning documents, and on certification 

3 of the organic governing documents 

4 by the Secretary in accordance with 

5 paragraph (4), hold elections of the 

6 officers of the Native Hawaiian gov7 erning entity pursuant to paragraph 

8 (5). 

9 (3) SUBMITTAL OF ORGANIC GOVERNING DOCU10 MENTS.—Following the reorganization of the Native 

11 Hawaiian governing entity and the adoption of or12 ganic governing documents, the Council shall submit 

13 the organic governing documents of the Native Ha14 waiian governing entity to the Secretary. 

15 (4) CERTIFICATIONS.— 

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

17 the future negotiations to be conducted under 

18 the authority of section 8(b)(1), and the subse19 quent actions by the Congress and the State of 

20 Hawaii to enact legislation to implement the 

21 agreements of the 3 governments, not later 

22 than 90 days after the date on which the Coun23 cil submits the organic governing documents to 

24 the Secretary, the Secretary shall certify that 

25 the organic governing documents— 


srobinson on DSKHWCL6B1PROD with BILLS
33 

•S 1011 RS

1 (i) establish the criteria for citizenship 

2 in the Native Hawaiian governing entity; 

3 (ii) were adopted by a majority vote of 

4 the adult members of the Native Hawaiian 

5 community whose names are listed on the 

6 roll published by the Secretary; 

7 (iii) provide authority for the Native 

8 Hawaiian governing entity to negotiate 

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

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

13 governing entity, including any authorities 

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

16 States and the State of Hawaii following 

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

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

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

21 or encumbrance of lands, interests in 

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

24 the Native Hawaiian governing entity; 


srobinson on DSKHWCL6B1PROD with BILLS
34 

•S 1011 RS

1 (vi) provide for the protection of the 

2 civil rights of the citizens of the Native 

3 Hawaiian governing entity and all persons 

4 affected by the exercise of governmental 

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

7 (vii) are consistent with applicable 

8 Federal law and the special political and 

9 legal relationship between the United 

10 States and the indigenous, native people of 

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

13 479a, shall not apply. 

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

16 SUBPARAGRAPH (a).— 

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

19 the organic governing documents, or any 

20 part of the documents, do not meet all of 

21 the requirements set forth in subparagraph 

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

24 along with a justification for each of the 


srobinson on DSKHWCL6B1PROD with BILLS
35 

•S 1011 RS

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

3 (ii) AMENDMENT AND RESUBMISSION

4 OF ORGANIC GOVERNING DOCUMENTS.—If 

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

7 under clause (i), the Council shall— 

8 (I) amend the organic governing 

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

11 forth in subparagraph (A); and 

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

15 with this paragraph. 

16 (C) CERTIFICATIONS DEEMED MADE.— 

17 The certifications under paragraph (4) shall be 

18 deemed to have been made if the Secretary has 

19 not acted within 90 days after the date on 

20 which the Council has submitted the organic 

21 governing documents of the Native Hawaiian 

22 governing entity to the Secretary. 

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


srobinson on DSKHWCL6B1PROD with BILLS
36 

•S 1011 RS

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

3 (6) REAFFIRMATION.—Notwithstanding any 

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

6 officers of the Native Hawaiian governing entity, the 

7 special political and legal relationship between the 

8 United States and the Native Hawaiian governing 

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

11 governing entity as the representative governing 

12 body of the Native Hawaiian people. 

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

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

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

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

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

22 (b) NEGOTIATIONS.— 

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

24 the special political and legal relationship between 

25 the United States and the Native Hawaiian govVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6401 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
37 

•S 1011 RS

1 erning entity, the United States and the State of 

2 Hawaii may enter into negotiations with the Native 

3 Hawaiian governing entity designed to lead to an 

4 agreement addressing such matters as— 

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

7 existing rights related to such lands or re8 sources; 

9 (B) the exercise of governmental authority 

10 over any transferred lands, natural resources, 

11 and other assets, including land use; 

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

14 (D) the delegation of governmental powers 

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

17 State of Hawaii; 

18 (E) any residual responsibilities of the 

19 United States and the State of Hawaii; and 

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

23 Hawaii. 

24 (2) AMENDMENTS TO EXISTING LAWS.—Upon 

25 agreement on any matter or matters negotiated with 


srobinson on DSKHWCL6B1PROD with BILLS
38 

•S 1011 RS

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

4 (A) to the Committee on Indian Affairs of 

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

11 governments; and 

12 (B) to the Governor and the legislature of 

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

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

17 (3) GOVERNMENTAL AUTHORITY AND

18 POWER.—Any governmental authority or power to 

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

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

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


srobinson on DSKHWCL6B1PROD with BILLS
39 

•S 1011 RS

1 United States Congress, when applicable, and by the 

2 State of Hawaii, when applicable. This includes any 

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

5 (c) CLAIMS.— 

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

7 (A) creates a cause of action against the 

8 United States or any other entity or person; 

9 (B) alters existing law, including existing 

10 case law, regarding obligations on the part of 

11 the United States or the State of Hawaii with 

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

14 (C) creates obligations that did not exist in 

15 any source of Federal law prior to the date of 

16 enactment of this Act; or 

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

19 single Native Hawaiian Governing Entity. 

20 (2) FEDERAL SOVEREIGN IMMUNITY.— 

21 (A) SPECIFIC PURPOSE.—Nothing in this 

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

25 or resource-management claims, or similar 


srobinson on DSKHWCL6B1PROD with BILLS
40 

•S 1011 RS

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

5 the United States or the State of Hawaii, 

6 whether or not such claims specifically assert 

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

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

11 (B) ESTABLISHMENT AND RETENTION OF

12 SOVEREIGN IMMUNITY.—To effectuate the ends 

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

14 notwithstanding any other provision of Federal 

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

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

19 past events), and which could be brought by 

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

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

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

25 1505 and 2409a of title 28, United States 


srobinson on DSKHWCL6B1PROD with BILLS
41 

•S 1011 RS

1 Code) be applicable to any such claims. This 

2 complete retention or reclaiming of sovereign 

3 immunity also applies to every claim that might 

4 attempt to rely on this Act for support, without 

5 regard to the source of law under which any 

6 such claim might be asserted. 

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

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

10 against the United States, including any claims 

11 of the types specifically referred to in section 

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

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

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

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

19 (3) STATE SOVEREIGNTY IMMUNITY.— 

20 (A) Notwithstanding any other provision of 

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

23 to any claim, established under any source of 

24 law, regarding Native Hawaiians, that existed 

25 prior to the enactment of this Act. 


srobinson on DSKHWCL6B1PROD with BILLS
42 

•S 1011 RS

1 (B) Nothing in this Act shall be construed 

2 to constitute an override pursuant to section 5 

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

5 Amendment. 

6 SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. 

7 (a) INDIAN GAMING REGULATORY ACT.— 

8 (1) The Native Hawaiian governing entity and 

9 Native Hawaiians may not conduct gaming activities 

10 as a matter of claimed inherent authority or under 

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

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

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

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

21 within the State of Hawaii or within any other State 

22 or Territory of the United States. 

23 (b) TAKING LAND INTO TRUST.—Notwithstanding 

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

25 part 151 of title 25, Code of Federal Regulations, the SecVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6401 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
43 

•S 1011 RS

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

4 (c) REAL PROPERTY TRANSFERS.—The Indian 

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

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

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

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

9 to construe the Trade and Intercourse Act to apply to 

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

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

15 shall be deemed to have been made in accordance with 

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

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

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

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

24 be eligible for acknowledgment pursuant to the Federal 

25 Acknowledgment Process set forth in part 83 of title 25 


srobinson on DSKHWCL6B1PROD with BILLS
44 

•S 1011 RS

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

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

4 civil or criminal jurisdiction of the United States or the 

5 State of Hawaii over lands and persons within the State 

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

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

9 negotiation process established in section 8(b). 

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

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

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

16 or service to any individual or entity not otherwise eligible 

17 for the program or service under applicable Federal law. 

18 (g) NATIVE HAWAIIAN PROGRAMS AND SERVICES.— 

19 The Native Hawaiian governing entity and its citizens 

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

22 applicable laws. 


srobinson on DSKHWCL6B1PROD with BILLS
45 

•S 1011 RS

1 SEC. 10. SEVERABILITY. 

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

3 it is the intent of Congress that the remaining sections 

4 or provisions shall continue in full force and effect. 

5 SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 

6 There are authorized to be appropriated such sums 

7 as are necessary to carry out this Act. 

8 SECTION 1. SHORT TITLE. 

9 This Act may be cited as the ‘‘Native Hawaiian Gov10 ernment Reorganization Act of 2009’’. 

11 SEC. 2. FINDINGS. 

12 Congress finds that— 

13 (1) the Constitution vests Congress with the au14 thority to address the conditions of the indigenous, 

15 native people of the United States and the Supreme 

16 Court has held that under the Indian Commerce, 

17 Treaty, Supremacy, and Property Clauses, and the 

18 War Powers, Congress may exercise that power to ra19 tionally promote the welfare of the native peoples of 

20 the United States so long as the native people are a 

21 ‘‘distinctly native community’’; 

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

23 Hawaiian archipelago that is now part of the United 

24 States, are 1 of the indigenous, native peoples of the 

25 United States, and the Native Hawaiian people are 

26 a distinctly native community; 


srobinson on DSKHWCL6B1PROD with BILLS
46 

•S 1011 RS

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

2 legal relationship with, and has long enacted legisla3 tion to promote the welfare of, the native peoples of 

4 the United States, including the Native Hawaiian 

5 people; 

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

7 United States concluded a number of treaties with the 

8 Kingdom of Hawaii, and from 1826 until 1893, the 

9 United States— 

10 (A) recognized the sovereignty of the King11 dom of Hawaii as a nation; 

12 (B) accorded full diplomatic recognition to 

13 the Kingdom of Hawaii; and 

14 (C) entered into treaties and conventions of 

15 peace, friendship and commerce with the King16 dom of Hawaii to govern trade, commerce, and 

17 navigation in 1826, 1842, 1849, 1875, and 1887; 

18 (5) pursuant to the Hawaiian Homes Commis19 sion Act, 1920 (42 Stat. 108, chapter 42), the United 

20 States set aside approximately 203,500 acres of land 

21 in trust to better address the conditions of Native Ha22 waiians in the Federal territory that later became the 

23 State of Hawaii and in enacting the Hawaiian 

24 Homes Commission Act, 1920, Congress acknowledged 

25 the Native Hawaiian people as a native people of the 


srobinson on DSKHWCL6B1PROD with BILLS
47 

•S 1011 RS

1 United States, as evidenced by the Committee Report, 

2 which notes that Congress relied on the Indian affairs 

3 power and the War Powers, including the power to 

4 make peace; 

5 (6) by setting aside 203,500 acres of land in 

6 trust for Native Hawaiian homesteads and farms, the 

7 Hawaiian Homes Commission Act, 1920, assists the 

8 members of the Native Hawaiian community in 

9 maintaining distinctly native communities through10 out the State of Hawaii; 

11 (7) approximately 6,800 Native Hawaiian fami12 lies reside on the Hawaiian Home Lands, and ap13 proximately 18,000 Native Hawaiians who are eligi14 ble to reside on the Hawaiian Home Lands are on a 

15 waiting list to receive assignments of Hawaiian 

16 Home Lands; 

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

18 United States admitting Hawaii into the Union, 

19 Congress delegated the authority and responsibility to 

20 administer the Hawaiian Homes Commission Act, 

21 1920, lands in trust for Native Hawaiians and estab22 lished a new public trust (commonly known as the 

23 ‘‘ceded lands trust’’), for 5 purposes, 1 of which is the 

24 betterment of the conditions of Native Hawaiians, 

25 and Congress thereby reaffirmed its recognition of the 


srobinson on DSKHWCL6B1PROD with BILLS
48 

•S 1011 RS

1 Native Hawaiians as a distinctly native community 

2 with a direct lineal and historical succession to the 

3 aboriginal, indigenous people of Hawaii; 

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

5 submerged lands, natural resources, and the revenues 

6 derived from the lands; and 

7 (C) the assets of this public trust have never been 

8 completely inventoried or segregated; 

9 (9) Native Hawaiians have continuously sought 

10 access to the ceded lands in order to establish and 

11 maintain native settlements and distinct native com12 munities throughout the State; 

13 (10) the Hawaiian Home Lands and other ceded 

14 lands provide important native land reserves and re15 sources for the Native Hawaiian community to main16 tain the practice of Native Hawaiian culture, lan17 guage, and traditions, and for the continuity, sur18 vival, and economic self-sufficiency of the Native Ha19 waiian people as a distinctly native political commu20 nity; 

21 (11) Native Hawaiians continue to maintain 

22 other distinctly native areas in Hawaii, including 

23 native lands that date back to the ali‘i and kuleana 

24 lands reserved under the Kingdom of Hawaii; 


srobinson on DSKHWCL6B1PROD with BILLS
49 

•S 1011 RS

1 (12) through the Sovereign Council of Hawaiian 

2 Homelands Assembly, Native Hawaiian civic associa3 tions, charitable trusts established by the Native Ha4 waiian ali‘i, nonprofit native service providers and 

5 other community associations, the Native Hawaiian 

6 people have actively maintained native traditions 

7 and customary usages throughout the Native Hawai8 ian community and the Federal and State courts 

9 have continuously recognized the right of the Native 

10 Hawaiian people to engage in certain customary 

11 practices and usages on public lands; 

12 (13) on November 23, 1993, Public Law 103–150 

13 (107 Stat. 1510) (commonly known as the ‘‘Apology 

14 Resolution’’) was enacted into law, extending an 

15 apology on behalf of the United States to the native 

16 people of Hawaii for the United States’ role in the 

17 overthrow of the Kingdom of Hawaii; 

18 (14) the Apology Resolution acknowledges that 

19 the overthrow of the Kingdom of Hawaii occurred 

20 with the active participation of agents and citizens of 

21 the United States, and further acknowledges that the 

22 Native Hawaiian people never directly relinquished 

23 to the United States their claims to their inherent 

24 sovereignty as a people over their national lands, eiVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6203 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
50 

•S 1011 RS

1 ther through the Kingdom of Hawaii or through a 

2 plebiscite or referendum; 

3 (15)(A) the Apology Resolution expresses the 

4 commitment of Congress and the President— 

5 (i) to acknowledge the ramifications of the 

6 overthrow of the Kingdom of Hawaii; and 

7 (ii) to support reconciliation efforts between 

8 the United States and Native Hawaiians; 

9 (B) Congress established the Office of Hawaiian 

10 Relations within the Department of the Interior with 

11 1 of its purposes being to consult with Native Hawai12 ians on the reconciliation process; and 

13 (C) the United States has the duty to reconcile 

14 and reaffirm its friendship with the Native Hawaiian 

15 people because, among other things, the United States 

16 Minister and United States naval forces participated 

17 in the overthrow of the Kingdom of Hawaii; 

18 (16)(A) despite the overthrow of the Government 

19 of the Kingdom of Hawaii, Native Hawaiians have 

20 continued to maintain their separate identity as a 

21 single distinctly native political community through 

22 cultural, social, and political institutions, and to give 

23 expression to their rights as native people to self-de24 termination, self-governance, and economic self-suffi25 ciency; and 


srobinson on DSKHWCL6B1PROD with BILLS
51 

•S 1011 RS

1 (B) there is clear continuity between the aborigi2 nal, native citizens of the Kingdom of Hawaii and 

3 their successors, the Native Hawaiian people today; 

4 (17) Native Hawaiians have also given expres5 sion to their rights as native people to self-determina6 tion, self-governance, and economic self-sufficiency— 

7 (A) through the provision of governmental 

8 services to Native Hawaiians, including the pro9 vision of— 

10 (i) health care services; 

11 (ii) educational programs; 

12 (iii) employment and training pro13 grams; 

14 (iv) economic development assistance 

15 programs; 

16 (v) children’s services; 

17 (vi) conservation programs; 

18 (vii) fish and wildlife protection; 

19 (viii) agricultural programs; 

20 (ix) native language immersion pro21 grams; 

22 (x) native language immersion schools 

23 from kindergarten through high school; 


srobinson on DSKHWCL6B1PROD with BILLS
52 

•S 1011 RS

1 (xi) college and master’s degree pro2 grams in native language immersion in3 struction; and 

4 (xii) traditional justice programs; and 

5 (B) by continuing their efforts to enhance 

6 Native Hawaiian self-determination and local 

7 control; 

8 (18) Native Hawaiian people are actively en9 gaged in Native Hawaiian cultural practices, tradi10 tional agricultural methods, fishing and subsistence 

11 practices, maintenance of cultural use areas and sa12 cred sites, protection of burial sites, and the exercise 

13 of their traditional rights to gather medicinal plants 

14 and herbs, and food sources; 

15 (19) the Native Hawaiian people wish to pre16 serve, develop, and transmit to future generations of 

17 Native Hawaiians their lands and Native Hawaiian 

18 political and cultural identity in accordance with 

19 their traditions, beliefs, customs and practices, lan20 guage, and social and political institutions, to control 

21 and manage their own lands, including ceded lands, 

22 and to achieve greater self-determination over their 

23 own affairs; 

24 (20) this Act provides a process within the 

25 framework of Federal law for the Native Hawaiian 


srobinson on DSKHWCL6B1PROD with BILLS
53 

•S 1011 RS

1 people to exercise their inherent rights as a distinct, 

2 indigenous, native community to reorganize a single 

3 unified Native Hawaiian governing entity for the 

4 purpose of giving expression to their rights as a na5 tive people to self-determination and self-governance; 

6 (21) Congress— 

7 (A) has declared that the United States has 

8 a special political and legal relationship for the 

9 welfare of the native peoples of the United States, 

10 including Native Hawaiians; 

11 (B) has identified Native Hawaiians as an 

12 indigenous, distinctly native people of the United 

13 States within the scope of its authority under the 

14 Constitution, and has enacted scores of statutes 

15 on their behalf; and 

16 (C) has delegated broad authority to the 

17 State of Hawaii to administer some of the 

18 United States’ responsibilities as they relate to 

19 the Native Hawaiian people and their lands; 

20 (22) the United States has recognized and re21 affirmed the special political and legal relationship 

22 with the Native Hawaiian people through the enact23 ment of the Act entitled, ‘‘An Act to provide for the 

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


srobinson on DSKHWCL6B1PROD with BILLS
54 

•S 1011 RS

1 approved March 18, 1959 (Public Law 86–3; 73 Stat. 

2 4), by— 

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

4 the public lands formerly held by the United 

5 States, and mandating that those lands be held 

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

7 for the betterment of the conditions of Native 

8 Hawaiians; and 

9 (B) transferring the United States responsi10 bility for the administration of the Hawaiian 

11 Home Lands to the State of Hawaii, but retain12 ing the exclusive right of the United States to 

13 consent to any actions affecting the lands in14 cluded in the trust and any amendments to the 

15 Hawaiian Homes Commission Act, 1920 (42 

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

17 legislature of the State of Hawaii affecting the 

18 beneficiaries under the Act; 

19 (23) the United States has continually recog20 nized and reaffirmed that— 

21 (A) Native Hawaiians have a direct genea22 logical, cultural, historic, and land-based connec23 tion to their forebears, the aboriginal, indige24 nous, native people who exercised original sov25 ereignty over the Hawaiian Islands; 


srobinson on DSKHWCL6B1PROD with BILLS
55 

•S 1011 RS

1 (B) Native Hawaiians have never relin2 quished their claims to sovereignty or their sov3 ereign lands; 

4 (C) the United States extends services to 

5 Native Hawaiians because of their unique status 

6 as the native people of a prior-sovereign nation 

7 with whom the United States has a special polit8 ical and legal relationship; and 

9 (D) the special relationship of American In10 dians, Alaska Natives, and Native Hawaiians to 

11 the United States arises out of their status as ab12 original, indigenous, native people of the United 

13 States; and 

14 (24) the State of Hawaii supports the reaffirma15 tion of the special political and legal relationship be16 tween the Native Hawaiian governing entity and the 

17 United States, as evidenced by 2 unanimous resolu18 tions enacted by the Hawaii State Legislature in the 

19 2000 and 2001 sessions of the Legislature and by the 

20 testimony of the Governor of the State of Hawaii be21 fore the Committee on Indian Affairs of the Senate on 

22 February 25, 2003, and March 1, 2005. 

23 SEC. 3. DEFINITIONS. 

24 In this Act: 


srobinson on DSKHWCL6B1PROD with BILLS
56 

•S 1011 RS

1 (1) ABORIGINAL, INDIGENOUS, NATIVE PEO2 PLE.—The term ‘‘aboriginal, indigenous, native peo3 ple’’ means a people whom Congress has recognized as 

4 the original inhabitants of the lands that later became 

5 part of the United States and who exercised sov6 ereignty in the areas that later became part of the 

7 United States. 

8 (2) APOLOGY RESOLUTION.—The term ‘‘Apology 

9 Resolution’’ means Public Law 103–150 (107 Stat. 

10 1510), a Joint Resolution extending an apology to 

11 Native Hawaiians on behalf of the United States for 

12 the participation of agents of the United States in the 

13 January 17, 1893, overthrow of the Kingdom of Ha14 waii. 

15 (3) COMMISSION.—The term ‘‘Commission’’ 

16 means the Commission established under section 8(b). 

17 (4) COUNCIL.—The term ‘‘Council’’ means the 

18 Native Hawaiian Interim Governing Council estab19 lished under section 8(c)(2). 

20 (5) INDIAN PROGRAM OR SERVICE.— 

21 (A) IN GENERAL.—The term ‘‘Indian pro22 gram or service’’ means any federally funded or 

23 authorized program or service provided to an In24 dian tribe (or member of an Indian tribe) beVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6203 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
57 

•S 1011 RS

1 cause of the status of the members of the Indian 

2 tribe as Indians. 

3 (B) INCLUSIONS.—The term ‘‘Indian pro4 gram or service’’ includes a program or service 

5 provided by the Bureau of Indian Affairs, the 

6 Indian Health Service, or any other Federal 

7 agency. 

8 (6) INDIAN TRIBE.—The term ‘‘Indian tribe’’ has 

9 the meaning given the term in section 4 of the Indian 

10 Self-Determination and Education Assistance Act (25 

11 U.S.C. 450b). 

12 (7) INDIGENOUS, NATIVE PEOPLE.—The term 

13 ‘‘indigenous, native people’’ means the lineal descend14 ants of the aboriginal, indigenous, native people of the 

15 United States. 

16 (8) INTERAGENCY COORDINATING GROUP.—The 

17 term ‘‘Interagency Coordinating Group’’ means the 

18 Native Hawaiian Interagency Coordinating Group 

19 established under section 6. 

20 (9) NATIVE HAWAIIAN GOVERNING ENTITY.—The 

21 term ‘‘Native Hawaiian governing entity’’ means the 

22 governing entity organized pursuant to this Act by 

23 the qualified Native Hawaiian constituents. 


srobinson on DSKHWCL6B1PROD with BILLS
58 

•S 1011 RS

1 (10) NATIVE HAWAIIAN MEMBERSHIP ORGANIZA2 TION.—The term ‘‘Native Hawaiian Membership Or3 ganization’’ means an organization that— 

4 (A) serves and represents the interests of 

5 Native Hawaiians, has as a primary and stated 

6 purpose the provision of services to Native Ha7 waiians, and has expertise in Native Hawaiian 

8 affairs; 

9 (B) has leaders who are elected democrat10 ically, or selected through traditional Native 

11 leadership practices, by members of the Native 

12 Hawaiian community; 

13 (C) advances the cause of Native Hawaiians 

14 culturally, socially, economically, or politically; 

15 (D) is a membership organization or asso16 ciation; and 

17 (E) has an accurate and reliable list of Na18 tive Hawaiian members. 

19 (11) OFFICE.—The term ‘‘Office’’ means the 

20 United States Office for Native Hawaiian Relations 

21 established by section 5(a). 

22 (12) QUALIFIED NATIVE HAWAIIAN CON23 STITUENT.—For the purposes of establishing the roll 

24 authorized under section 8, and prior to the recogni25 tion by the United States of the Native Hawaiian 


srobinson on DSKHWCL6B1PROD with BILLS
59 

•S 1011 RS

1 governing entity, the term ‘‘qualified Native Hawai2 ian constituent’’ means an individual who the Com3 mission determines has satisfied the following criteria 

4 and who makes a written statement certifying that he 

5 or she— 

6 (A) is— 

7 (i) an individual who is 1 of the indig8 enous, native people of Hawaii and who is 

9 a direct lineal descendant of the aboriginal, 

10 indigenous, native people who— 

11 (I) resided in the islands that now 

12 comprise the State of Hawaii on or be13 fore January 1, 1893; and 

14 (II) occupied and exercised sov15 ereignty in the Hawaiian archipelago, 

16 including the area that now constitutes 

17 the State of Hawaii; or 

18 (ii) an individual who is 1 of the in19 digenous, native people of Hawaii and who 

20 was eligible in 1921 for the programs au21 thorized by the Hawaiian Homes Commis22 sion Act, 1920 (42 Stat. 108, chapter 42), 

23 or a direct lineal descendant of that indi24 vidual; 


srobinson on DSKHWCL6B1PROD with BILLS
60 

•S 1011 RS

1 (B) wishes to participate in the reorganiza2 tion of the Native Hawaiian governing entity; 

3 (C) is 18 years of age or older; 

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

5 (E) maintains a significant cultural, social, 

6 or civic connection to the Native Hawaiian com7 munity, as evidenced by satisfying 2 or more of 

8 the following 10 criteria: 

9 (i) Resides in the State of Hawaii. 

10 (ii) Resides outside the State of Ha11 waii and— 

12 (I)(aa) currently serves or served 

13 as (or has a parent or spouse who cur14 rently serves or served as) a member of 

15 the Armed Forces or as an employee of 

16 the Federal Government; and 

17 (bb) resided in the State of Ha18 waii prior to the time he or she (or 

19 such parent or spouse) left the State of 

20 Hawaii to serve as a member of the 

21 Armed Forces or as an employee of the 

22 Federal Government; or 

23 (II)(aa) currently is or was en24 rolled (or has a parent or spouse who 

25 currently is or was enrolled) in an acVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00060 Fmt 6652 Sfmt 6203 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
61 

•S 1011 RS

1 credited institution of higher education 

2 outside the State of Hawaii; and 

3 (bb) resided in the State of Ha4 waii prior to the time he or she (or 

5 such parent or spouse) left the State of 

6 Hawaii to attend such institution. 

7 (iii)(I) Is or was eligible to be a bene8 ficiary of the programs authorized by the 

9 Hawaiian Homes Commission Act, 1920 

10 (42 Stat. 108, chapter 42), and resides or 

11 resided on land set aside as ‘‘Hawaiian 

12 home lands’’, as defined in such Act; or 

13 (II) Is a child or grandchild of an in14 dividual who is or was eligible to be a bene15 ficiary of the programs authorized by such 

16 Act and who resides or resided on land set 

17 aside as ‘‘Hawaiian home lands’’, as de18 fined in such Act. 

19 (iv) Is or was eligible to be a bene20 ficiary of the programs authorized by the 

21 Hawaiian Homes Commission Act, 1920 

22 (42 Stat. 108, chapter 42). 

23 (v) Is a child or grandchild of an indi24 vidual who is or was eligible to be a bene25 ficiary of the programs authorized by the 


srobinson on DSKHWCL6B1PROD with BILLS
62 

•S 1011 RS

1 Hawaiian Homes Commission Act, 1920 

2 (42 Stat. 108, chapter 42). 

3 (vi) Resides on or has an ownership 

4 interest in, or has a parent or grandparent 

5 who resides on or has an ownership interest 

6 in, ‘‘kuleana land’’ that is owned in whole 

7 or in part by a person who, according to a 

8 genealogy verification by the Office of Ha9 waiian Affairs or by court order, is a lineal 

10 descendant of the person or persons who re11 ceived the original title to such ‘‘kuleana 

12 land’’, defined as lands granted to native 

13 tenants pursuant to Haw. L. 1850, p. 202, 

14 entitled ‘‘An Act Confirming Certain Reso15 lutions of the King and Privy Council 

16 Passed on the 21st day of December, A.D. 

17 1849, Granting to the Common People 

18 Allodial Titles for Their Own Lands and 

19 House Lots, and Certain Other Privileges’’, 

20 as amended by Haw. L. 1851, p. 98, enti21 tled ‘‘An Act to Amend An Act Granting to 

22 the Common People Allodial Titles for Their 

23 Own Lands and House Lots, and Certain 

24 Other Privileges’’ and as further amended 

25 by any subsequent legislation. 


srobinson on DSKHWCL6B1PROD with BILLS
63 

•S 1011 RS

1 (vii) Is, or is the child or grandchild 

2 of, an individual who has been or was a 

3 student for at least 1 school year at a school 

4 or program taught through the medium of 

5 the Hawaiian language under section 

6 302H–6, Hawaii Revised Statutes, or at a 

7 school founded and operated primarily or 

8 exclusively for the benefit of Native Hawai9 ians. 

10 (viii) Has been a member since Sep11 tember 30, 2009, of at least 1 Native Ha12 waiian Membership Organization. 

13 (ix) Has been a member since Sep14 tember 30, 2009, of at least 2 Native Ha15 waiian Membership Organizations. 

16 (x) Is regarded as a Native Hawaiian 

17 and whose mother or father is (or if de18 ceased, was) regarded as a Native Hawai19 ian by the Native Hawaiian community, as 

20 evidenced by sworn affidavits from 2 or 

21 more qualified Native Hawaiian constitu22 ents certified by the Commission as pos23 sessing expertise in the social, cultural, and 

24 civic affairs of the Native Hawaiian com25 munity. 


srobinson on DSKHWCL6B1PROD with BILLS
64 

•S 1011 RS

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

2 the Secretary of the Interior. 

3 (14) SPECIAL POLITICAL AND LEGAL RELATION4 SHIP.—The term ‘‘special political and legal relation5 ship’’ shall refer, except where differences are specifi6 cally indicated elsewhere in the Act, to the type of 

7 and nature of relationship the United States has with 

8 the several federally recognized Indian tribes. 

9 SEC. 4. UNITED STATES POLICY AND PURPOSE. 

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

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

12 indigenous, native people with whom the United 

13 States has a special political and legal relationship; 

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

15 legal relationship with the Native Hawaiian people, 

16 which includes promoting the welfare of Native Ha17 waiians; 

18 (3)(A) Congress possesses and hereby exercises the 

19 authority under the Constitution, including but not 

20 limited to Article I, Section 8, Clause 3, to enact leg21 islation to better the conditions of Native Hawaiians 

22 and has exercised this authority through the enact23 ment of— 

24 (i) the Hawaiian Homes Commission Act, 

25 1920 (42 Stat. 108, chapter 42); 


srobinson on DSKHWCL6B1PROD with BILLS
65 

•S 1011 RS

1 (ii) the Act entitled ‘‘An Act to provide for 

2 the admission of the State of Hawaii into the 

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

4 86–3; 73 Stat. 4); and 

5 (iii) more than 150 other Federal laws ad6 dressing the conditions of Native Hawaiians; 

7 (B) other sources of authority under the Con8 stitution for legislation on behalf of native peoples of 

9 the United States, including Native Hawaiians, in10 clude but are not limited to the Property, Treaty, and 

11 Supremacy Clauses, War Powers, and the Fourteenth 

12 Amendment, and Congress hereby relies on those pow13 ers in enacting this legislation; and 

14 (C) the Constitution’s original Apportionment 

15 Clause and the 14th Amendment Citizenship and 

16 amended Apportionment Clauses also acknowledge the 

17 propriety of legislation on behalf of the native peoples 

18 of the United States, including Native Hawaiians; 

19 (4) Native Hawaiians have— 

20 (A) an inherent right to autonomy in their 

21 internal affairs; 

22 (B) an inherent right of self-determination 

23 and self-governance; 

24 (C) the right to reorganize a Native Hawai25 ian governing entity; and 


srobinson on DSKHWCL6B1PROD with BILLS
66 

•S 1011 RS

1 (D) the right to become economically self2 sufficient; and 

3 (5) the United States shall continue to engage in 

4 a process of reconciliation and political relations with 

5 the Native Hawaiian people. 

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

7 a process for the reorganization of the single Native Hawai8 ian governing entity and the reaffirmation of the special 

9 political and legal relationship between the United States 

10 and that Native Hawaiian governing entity for purposes 

11 of continuing a government-to-government relationship. 

12 SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RE13 LATIONS. 

14 (a) ESTABLISHMENT.—There is established within the 

15 Office of the Secretary the United States Office for Native 

16 Hawaiian Relations. 

17 (b) DUTIES.—The Office shall— 

18 (1) continue the process of reconciliation with 

19 the Native Hawaiian people in furtherance of the 

20 Apology Resolution; 

21 (2) upon the reaffirmation of the government-to22 government relationship between the single Native 

23 Hawaiian governing entity and the United States, ef24 fectuate and coordinate the special political and legal 

25 relationship between the Native Hawaiian governing 


srobinson on DSKHWCL6B1PROD with BILLS
67 

•S 1011 RS

1 entity and the United States through the Secretary, 

2 and with all other Federal agencies; 

3 (3) provide timely notice to, and consult with, 

4 the Native Hawaiian governing entity before taking 

5 any actions that may have the potential to signifi6 cantly affect Native Hawaiian resources, rights, or 

7 lands; 

8 (4) work with the Interagency Coordinating 

9 Group, other Federal agencies, and the State of Ha10 waii on policies, practices, and proposed actions af11 fecting Native Hawaiian resources, rights, or lands; 

12 and 

13 (5) prepare and submit to the Committee on In14 dian Affairs and the Committee on Energy and Nat15 ural Resources of the Senate and the Committee on 

16 Natural Resources of the House of Representatives an 

17 annual report detailing the activities of the Inter18 agency Coordinating Group that are undertaken with 

19 respect to the continuing process of reconciliation and 

20 to effect meaningful consultation with the Native Ha21 waiian governing entity and may provide rec22 ommendations for any necessary changes to Federal 

23 law or regulations promulgated under the authority 

24 of Federal law. 


srobinson on DSKHWCL6B1PROD with BILLS
68 

•S 1011 RS

1 (c) APPLICABILITY TO DEPARTMENT OF DEFENSE.— 

2 This section shall have no applicability to the Department 

3 of Defense or to any agency or component of the Depart4 ment of Defense, but the Secretary of Defense may designate 

5 1 or more officials as liaison to the Office. 

6 SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING 

7 GROUP. 

8 (a) ESTABLISHMENT.—In recognition that Federal 

9 programs authorized to address the conditions of Native 

10 Hawaiians are largely administered by Federal agencies 

11 other than the Department of the Interior, there is estab12 lished an interagency coordinating group, to be known as 

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

14 (b) COMPOSITION.—The Interagency Coordinating 

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

16 the President, from— 

17 (1) each Federal agency whose actions may sig18 nificantly or uniquely impact Native Hawaiian pro19 grams, resources, rights, or lands; and 

20 (2) the Office. 

21 (c) LEAD AGENCY.— 

22 (1) IN GENERAL.—The Department of the Inte23 rior and the White House Office of Intergovernmental 

24 Affairs shall serve as the leaders of the Interagency 

25 Coordinating Group. 


srobinson on DSKHWCL6B1PROD with BILLS
69 

•S 1011 RS

1 (2) MEETINGS.—The Secretary shall convene 

2 meetings of the Interagency Coordinating Group. 

3 (d) DUTIES.—The Interagency Coordinating Group 

4 shall— 

5 (1) coordinate Federal programs and policies 

6 that affect Native Hawaiians or actions by any agen7 cy or agencies of the Federal Government that may 

8 significantly or uniquely affect Native Hawaiian re9 sources, rights, or lands; 

10 (2) consult with the Native Hawaiian governing 

11 entity, through the coordination referred to in para12 graph (1), but the consultation obligation established 

13 in this provision shall apply only after the satisfac14 tion of all of the conditions referred to in section 

15 8(c)(8); and 

16 (3) ensure the participation of each Federal 

17 agency in the development of the report to Congress 

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

19 (e) APPLICABILITY TO DEPARTMENT OF DEFENSE.— 

20 This section shall have no applicability to the Department 

21 of Defense or to any agency or component of the Depart22 ment of Defense, but the Secretary of Defense may designate 

23 1 or more officials as liaison to the Interagency Coordi24 nating Group. 


srobinson on DSKHWCL6B1PROD with BILLS
70 

•S 1011 RS

1 SEC. 7. DESIGNATION OF DEPARTMENT OF JUSTICE REP2 RESENTATIVE. 

3 The Attorney General shall designate an appropriate 

4 official within the Department of Justice to assist the Office 

5 in the implementation and protection of the rights of Native 

6 Hawaiians and their political and legal relationship with 

7 the United States, and upon the recognition of the Native 

8 Hawaiian governing entity as provided for in section 8, 

9 in the implementation and protection of the rights of the 

10 Native Hawaiian governing entity and its political and 

11 legal relationship with the United States. 

12 SEC. 8. PROCESS FOR REORGANIZATION OF NATIVE HAWAI13 IAN GOVERNING ENTITY AND REAFFIRMA14 TION OF SPECIAL POLITICAL AND LEGAL RE15 LATIONSHIP BETWEEN UNITED STATES AND 

16 NATIVE HAWAIIAN GOVERNING ENTITY. 

17 (a) RECOGNITION OF NATIVE HAWAIIAN GOVERNING

18 ENTITY.—The right of the qualified Native Hawaiian con19 stituents to reorganize the single Native Hawaiian gov20 erning entity to provide for their common welfare and to 

21 adopt appropriate organic governing documents is recog22 nized by the United States. 

23 (b) COMMISSION.— 

24 (1) IN GENERAL.—There is authorized to be es25 tablished a Commission to be composed of 9 members 

26 for the purposes of— 


srobinson on DSKHWCL6B1PROD with BILLS
71 

•S 1011 RS

1 (A) preparing and maintaining a roll of 

2 qualified Native Hawaiian constituents; and 

3 (B) certifying that the individuals on the 

4 roll of qualified Native Hawaiian constituents 

5 meet the definition of qualified Native Hawaiian 

6 constituent set forth in section 3. 

7 (2) MEMBERSHIP.— 

8 (A) APPOINTMENT.— 

9 (i) IN GENERAL.—Not later than 180 

10 days after the date of enactment of this Act, 

11 the Secretary shall appoint the members of 

12 the Commission in accordance with sub13 paragraph (B). 

14 (ii) CONSIDERATION.—In making an 

15 appointment under clause (i), the Secretary 

16 may take into consideration a recommenda17 tion made by any Native Hawaiian Mem18 bership Organization. 

19 (B) REQUIREMENTS.—Each member of the 

20 Commission shall demonstrate, as determined by 

21 the Secretary— 

22 (i) not less than 10 years of experience 

23 in the study and determination of Native 

24 Hawaiian genealogy (traditional cultural 


srobinson on DSKHWCL6B1PROD with BILLS
72 

•S 1011 RS

1 experience shall be given due consideration); 

2 and 

3 (ii) an ability to read and translate 

4 into English documents written in the Ha5 waiian language. 

6 (C) VACANCIES.—A vacancy on the Com7 mission— 

8 (i) shall not affect the powers of the 

9 Commission; and 

10 (ii) shall be filled in the same manner 

11 as the original appointment. 

12 (3) EXPENSES.—Each member of the Commis13 sion shall be allowed travel expenses, including per 

14 diem in lieu of subsistence, at rates authorized for 

15 employees of agencies under subchapter I of chapter 

16 57 of title 5, United States Code, while away from 

17 their homes or regular places of business in the per18 formance of services for the Commission. 

19 (4) DUTIES.—The Commission shall— 

20 (A) prepare and maintain a roll of quali21 fied Native Hawaiian constituents as set forth in 

22 subsection (c); and 

23 (B) certify that the individuals on the roll 

24 of qualified Native Hawaiian constituents meet 


srobinson on DSKHWCL6B1PROD with BILLS
73 

•S 1011 RS

1 the definition of that term as set forth in section 

2 3. 

3 (5) STAFF.— 

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

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

9 to perform the duties of the Commission. 

10 (B) COMPENSATION.— 

11 (i) IN GENERAL.—Except as provided 

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

13 compensation of the executive director and 

14 other personnel without regard to the provi15 sions of chapter 51 and subchapter III of 

16 chapter 53 of title 5, United States Code, 

17 relating to classification of positions and 

18 General Schedule pay rates. 

19 (ii) MAXIMUM RATE OF PAY.—The rate 

20 of pay for the executive director and other 

21 personnel shall not exceed the rate payable 

22 for level V of the Executive Schedule under 

23 section 5316 of title 5, United States Code. 

24 (6) DETAIL OF FEDERAL GOVERNMENT EMPLOY25 EES.— 


srobinson on DSKHWCL6B1PROD with BILLS
74 

•S 1011 RS

1 (A) IN GENERAL.—An employee of the Fed2 eral Government may be detailed to the Commis3 sion without reimbursement. 

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

5 the employee shall be without interruption or 

6 loss of civil service status or privilege. 

7 (7) PROCUREMENT OF TEMPORARY AND INTER8 MITTENT SERVICES.—The Commission may procure 

9 temporary and intermittent services in accordance 

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

11 rates for individuals that do not exceed the daily 

12 equivalent of the annual rate of basic pay prescribed 

13 for level V of the Executive Schedule under section 

14 5316 of that title. 

15 (8) EXPIRATION.—The Secretary shall dissolve 

16 the Commission upon the reaffirmation of the special 

17 political and legal relationship between the Native 

18 Hawaiian governing entity and the United States. 

19 (c) PROCESS FOR REORGANIZATION OF NATIVE HA20 WAIIAN GOVERNING ENTITY.— 

21 (1) ROLL.— 

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

23 names of the qualified Native Hawaiian con24 stituents who are certified by the Commission to 


srobinson on DSKHWCL6B1PROD with BILLS
75 

•S 1011 RS

1 be qualified Native Hawaiian constituents, as 

2 defined in section 3. 

3 (B) FORMATION OF ROLL.—Each indi4 vidual claiming to be a qualified Native Hawai5 ian constituent shall submit to the Commission 

6 documentation in the form established by the 

7 Commission that is sufficient to enable the Com8 mission to determine whether the individual 

9 meets the definition set forth in section 3; Pro10 vided, That an individual presenting evidence 

11 that he or she satisfies the definition in section 

12 2 of Public Law 103–150 shall be presumed to 

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

14 (C) DOCUMENTATION.—The Commission 

15 shall— 

16 (i)(I) identify the types of documenta17 tion that may be submitted to the Commis18 sion that would enable the Commission to 

19 determine whether an individual meets the 

20 definition of qualified Native Hawaiian 

21 constituent set forth in section 3; 

22 (II) recognize an individual’s identi23 fication of lineal ancestors on the 1890 Cen24 sus by the Kingdom of Hawaii as a reliable 

25 indicia of lineal descent from the aborigiVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6203 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
76 

•S 1011 RS

1 nal, indigenous, native people who resided 

2 in the islands that now comprise the State 

3 of Hawaii on or before January 1, 1893; 

4 and 

5 (III) permit elderly Native Hawaiians 

6 and other Native Hawaiians lacking birth 

7 certificates or other documentation due to 

8 birth on Hawaiian Home Lands or other 

9 similar circumstances to establish lineal de10 scent by sworn affidavits from 2 or more 

11 qualified Native Hawaiian constituents; 

12 (ii) establish a standard format for the 

13 submission of documentation and a process 

14 to ensure veracity; and 

15 (iii) publish information related to 

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

17 (D) CONSULTATION.—In making deter18 minations that each individual proposed for in19 clusion on the roll of qualified Native Hawaiian 

20 constituents meets the definition of qualified Na21 tive Hawaiian constituent in section 3, the Com22 mission may consult with Native Hawaiian 

23 Membership Organizations, agencies of the State 

24 of Hawaii including but not limited to the De25 partment of Hawaiian Home Lands, the Office 


srobinson on DSKHWCL6B1PROD with BILLS
77 

•S 1011 RS

1 of Hawaiian Affairs, and the State Department 

2 of Health, and other entities with expertise and 

3 experience in the determination of Native Ha4 waiian ancestry and lineal descendancy. 

5 (E) NOTIFICATION.—The Commission 

6 shall— 

7 (i) inform an individual whether they 

8 have been deemed by the Commission a 

9 qualified Native Hawaiian constituent; and 

10 (ii) inform an individual of a right to 

11 appeal the decision if deemed not to be a 

12 qualified Native Hawaiian constituent. 

13 (F) CERTIFICATION AND SUBMITTAL OF

14 ROLL TO SECRETARY.—The Commission shall— 

15 (i) submit the roll containing the 

16 names of those individuals who meet the 

17 definition of qualified Native Hawaiian 

18 constituent in section 3 to the Secretary 

19 within 2 years from the date on which the 

20 Commission is fully composed; and 

21 (ii) certify to the Secretary that each of 

22 the qualified Native Hawaiian constituents 

23 proposed for inclusion on the roll meets the 

24 definition set forth in section 3. 


srobinson on DSKHWCL6B1PROD with BILLS
78 

•S 1011 RS

1 (G) PUBLICATION.—Upon certification by 

2 the Commission to the Secretary that those listed 

3 on the roll meet the definition of qualified Native 

4 Hawaiian constituent set forth in section 3, the 

5 Commission shall publish the notice of the cer6 tification of the roll in the Federal Register, not7 withstanding pending appeals pursuant to sub8 paragraph (H). 

9 (H) APPEAL.—The Secretary, in consulta10 tion with the Commission, shall establish a 

11 mechanism for an administrative appeal for any 

12 person whose name is excluded from the roll who 

13 claims to meet the definition of qualified Native 

14 Hawaiian constituent in section 3. 

15 (I) PUBLICATION; UPDATE.—The Commis16 sion shall— 

17 (i) publish the notice of the certifi18 cation of the roll regardless of whether ap19 peals are pending; 

20 (ii) update the roll and provide notice 

21 of the updated roll on the final disposition 

22 of any appeal; 

23 (iii) update the roll to include any 

24 person who has been certified by the Com25 mission as meeting the definition of qualiVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00078 Fmt 6652 Sfmt 6203 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
79 

•S 1011 RS

1 fied Native Hawaiian constituent in section 

2 3 after the initial publication of the roll or 

3 after any subsequent publications of the roll; 

4 and 

5 (iv) provide a copy of the roll and any 

6 updated rolls to the Council. 

7 (J) EFFECT OF PUBLICATION.—The publi8 cation of the initial and updated roll shall serve 

9 as the basis for the eligibility of qualified Native 

10 Hawaiian constituents whose names are listed 

11 on those rolls to participate in the reorganiza12 tion of the Native Hawaiian governing entity. 

13 (2) ORGANIZATION OF COUNCIL.— 

14 (A) ORGANIZATION.—The Commission, in 

15 consultation with the Secretary, shall hold a 

16 minimum of 3 meetings and each meeting shall 

17 be at least 2 working days of the qualified Native 

18 Hawaiian constituents listed on the roll estab19 lished under this section— 

20 (i) to develop criteria for candidates to 

21 be elected to serve on the Council; 

22 (ii) to determine the structure of the 

23 Council, including the number of Council 

24 members; and 


srobinson on DSKHWCL6B1PROD with BILLS
80 

•S 1011 RS

1 (iii) to elect members from individuals 

2 listed on the roll established under this sub3 section to the Council. 

4 (B) POWERS.— 

5 (i) IN GENERAL.—The Council— 

6 (I) shall represent those listed on 

7 the roll established under this section 

8 in the implementation of this Act; and 

9 (II) shall have no powers other 

10 than powers given to the Council under 

11 this Act. 

12 (ii) FUNDING.—The Council may enter 

13 into a contract with, or obtain a grant 

14 from, any Federal or State agency to carry 

15 out clause (iii). 

16 (iii) ACTIVITIES.— 

17 (I) IN GENERAL.—The Council 

18 shall conduct, among the qualified Na19 tive Hawaiian constituents listed on 

20 the roll established under this sub21 section, a referendum for the purpose of 

22 determining the proposed elements of 

23 the organic governing documents of the 

24 Native Hawaiian governing entity, in25 cluding but not limited to— 


srobinson on DSKHWCL6B1PROD with BILLS
81 

•S 1011 RS

1 (aa) the proposed criteria for 

2 future membership in the Native 

3 Hawaiian governing entity; 

4 (bb) the proposed powers and 

5 authorities to be exercised by the 

6 Native Hawaiian governing enti7 ty, as well as the proposed privi8 leges and immunities of the Na9 tive Hawaiian governing entity; 

10 (cc) the proposed civil rights 

11 and protection of the rights of the 

12 citizens of the Native Hawaiian 

13 governing entity and all persons 

14 affected by the exercise of govern15 mental powers and authorities of 

16 the Native Hawaiian governing 

17 entity; and 

18 (dd) other issues determined 

19 appropriate by the Council. 

20 (II) DEVELOPMENT OF ORGANIC

21 GOVERNING DOCUMENTS.—Based on 

22 the referendum, the Council shall de23 velop proposed organic governing docu24 ments for the Native Hawaiian gov25 erning entity and may seek technical 


srobinson on DSKHWCL6B1PROD with BILLS
82 

•S 1011 RS

1 assistance from the Secretary on the 

2 draft organic governing documents to 

3 ensure that the draft organic governing 

4 documents comply with this Act and 

5 other Federal law. 

6 (III) DISTRIBUTION.—The Coun7 cil shall publish to all qualified Native 

8 Hawaiian constituents of the Native 

9 Hawaiian governing entity listed on 

10 the roll published under this subsection 

11 notice of the availability of— 

12 (aa) a copy of the proposed 

13 organic governing documents, as 

14 drafted by the Council; and 

15 (bb) a brief impartial de16 scription of the proposed organic 

17 governing documents; 

18 (IV) ELECTIONS.— 

19 (aa) IN GENERAL.—Not 

20 sooner than 180 days after the 

21 proposed organic governing docu22 ments are drafted and distributed, 

23 the Council, with the assistance of 

24 the Secretary, shall hold elections 

25 for the purpose of ratifying the 


srobinson on DSKHWCL6B1PROD with BILLS
83 

•S 1011 RS

1 proposed organic governing docu2 ments. 

3 (bb) PURPOSE.—The Coun4 cil, with the assistance of the Sec5 retary, shall hold the election for 

6 the purpose of ratifying the pro7 posed organic governing docu8 ments 60 days after publishing 

9 notice of an election. 

10 (cc) OFFICERS.—On certifi11 cation of the organic governing 

12 documents by the Secretary in ac13 cordance with paragraph (4), the 

14 Council, with the assistance of the 

15 Secretary, shall hold elections of 

16 the officers of the Native Hawai17 ian governing entity pursuant to 

18 paragraph (5). 

19 (3) SUBMITTAL OF ORGANIC GOVERNING DOCU20 MENTS.—Following the reorganization of the Native 

21 Hawaiian governing entity and the adoption of or22 ganic governing documents, the Council shall submit 

23 the organic governing documents of the Native Ha24 waiian governing entity to the Secretary. 

25 (4) CERTIFICATIONS.— 


srobinson on DSKHWCL6B1PROD with BILLS
84 

•S 1011 RS

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

2 future negotiations to be conducted under the au3 thority of section 9(b)(1), and the subsequent ac4 tions by the Congress and the State of Hawaii 

5 to enact legislation to implement the agreements 

6 of the 3 governments, not later than 180 days, 

7 which may be extended an additional 90 days if 

8 the Secretary deems necessary, after the date on 

9 which the Council submits the organic governing 

10 documents to the Secretary, the Secretary shall 

11 certify or decline to certify that the organic gov12 erning documents— 

13 (i) establish the criteria for member14 ship in the Native Hawaiian governing en15 tity; 

16 (ii) were adopted by a majority vote of 

17 those qualified Native Hawaiian constitu18 ents whose names are listed on the roll pub19 lished by the Secretary and who voted in 

20 the election; 

21 (iii) provide authority for the Native 

22 Hawaiian governing entity to negotiate 

23 with Federal, State, and local governments, 

24 and other entities; 


srobinson on DSKHWCL6B1PROD with BILLS
85 

•S 1011 RS

1 (iv) provide for the exercise of inherent 

2 and other appropriate governmental au3 thorities by the Native Hawaiian governing 

4 entity; 

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

6 or encumbrance of lands, interests in lands, 

7 or other assets of the Native Hawaiian gov8 erning entity without the consent of the Na9 tive Hawaiian governing entity; 

10 (vi) provide for the protection of the 

11 civil rights of the citizens of the Native Ha12 waiian governing entity and all persons af13 fected by the exercise of governmental pow14 ers and authorities by the Native Hawaiian 

15 governing entity; and 

16 (vii) are consistent with applicable 

17 Federal law. 

18 (B) RESUBMISSION IN CASE OF NONCOMPLI19 ANCE.— 

20 (i) RESUBMISSION BY THE SEC21 RETARY.—If the Secretary determines that 

22 the organic governing documents, or any 

23 part of the documents, do not meet all of the 

24 requirements set forth in subparagraph (A), 

25 the Secretary shall resubmit the organic 


srobinson on DSKHWCL6B1PROD with BILLS
86 

•S 1011 RS

1 governing documents to the Council, along 

2 with a justification for each of the Sec3 retary’s findings as to why the provisions 

4 are not in full compliance. 

5 (ii) AMENDMENT AND RESUBMISSION

6 OF ORGANIC GOVERNING DOCUMENTS.—If 

7 the organic governing documents are resub8 mitted to the Council by the Secretary 

9 under clause (i), the Council shall— 

10 (I) amend the organic governing 

11 documents to ensure that the docu12 ments meet all the requirements set 

13 forth in subparagraph (A); and 

14 (II) resubmit the amended organic 

15 governing documents to the Secretary 

16 for certification in accordance with 

17 this paragraph. 

18 (C) CERTIFICATIONS DEEMED MADE.—The 

19 certifications under this paragraph shall be 

20 deemed to have been made if the Secretary has 

21 not acted within 180 days after the date on 

22 which the Council has submitted the organic gov23 erning documents of the Native Hawaiian gov24 erning entity to the Secretary. 


srobinson on DSKHWCL6B1PROD with BILLS
87 

•S 1011 RS

1 (5) ELECTIONS.—On completion of the certifi2 cations by the Secretary under paragraph (4), the 

3 Council, with the assistance of the Secretary, shall 

4 hold elections of the officers of the Native Hawaiian 

5 governing entity. 

6 (6) PROVISION OF ROLL.—The Council shall pro7 vide a copy of the roll of qualified Native Hawaiian 

8 constituents to the governing body of the Native Ha9 waiian governing entity. 

10 (7) TERMINATION.—The Council shall cease to 

11 exist and shall have no power or authority under this 

12 Act after the officers of the governing body who are 

13 elected as provided in paragraph (5) are installed. 

14 (8) REAFFIRMATION.—Notwithstanding any 

15 other provision of law, the special political and legal 

16 relationship between the United States and the Native 

17 Hawaiian people is hereby reaffirmed and the United 

18 States extends Federal recognition to the Native Ha19 waiian governing entity as the representative sov20 ereign governing body of the Native Hawaiian people 

21 after— 

22 (A) the approval of the organic governing 

23 documents by the Secretary under subparagraph 

24 (A) or (C) of paragraph (4); and 


srobinson on DSKHWCL6B1PROD with BILLS
88 

•S 1011 RS

1 (B) the officers of the Native Hawaiian gov2 erning entity elected under paragraph (5) have 

3 been installed. 

4 SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AU5 THORITY TO STATE OF HAWAII; NEGOTIA6 TIONS; CLAIMS. 

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

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

9 conditions of the indigenous, native people of Hawaii con10 tained in the Act entitled ‘‘An Act to provide for the admis11 sion of the State of Hawaii into the Union’’, approved 

12 March 18, 1959 (Public Law 86–3; 73 Stat. 4), is re13 affirmed. 

14 (b) NEGOTIATIONS.— 

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

16 special political and legal relationship between the 

17 United States and the Native Hawaiian governing 

18 entity, the United States and the State of Hawaii 

19 may enter into negotiations with the Native Hawai20 ian governing entity designed to lead to an agreement 

21 addressing such matters as— 

22 (A) the transfer of State of Hawaii lands 

23 and surplus Federal lands, natural resources, 

24 and other assets, and the protection of existing 

25 rights related to such lands or resources; 


srobinson on DSKHWCL6B1PROD with BILLS
89 

•S 1011 RS

1 (B) the exercise of governmental authority 

2 over any transferred lands, natural resources, 

3 and other assets, including land use; 

4 (C) the exercise of civil and criminal juris5 diction; 

6 (D) the exercise of other powers and au7 thorities that are recognized by the United States 

8 as powers and authorities typically exercised by 

9 governments representing indigenous, native peo10 ple of the United States; 

11 (E) any residual responsibilities of the 

12 United States and the State of Hawaii; and 

13 (F) grievances regarding assertions of his14 torical wrongs committed against Native Hawai15 ians by the United States or by the State of Ha16 waii. 

17 (2) AMENDMENTS TO EXISTING LAWS.—Upon 

18 agreement on any matter or matters negotiated with 

19 the United States or the State of Hawaii, and the Na20 tive Hawaiian governing entity, the parties may sub21 mit— 

22 (A) to the Committee on Indian Affairs of 

23 the Senate, the Committee on Energy and Nat24 ural Resources of the Senate, and the Committee 

25 on Natural Resources of the House of RepresentVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00089 Fmt 6652 Sfmt 6203 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
90 

•S 1011 RS

1 atives recommendations for proposed amend2 ments to Federal law that will enable the imple3 mentation of agreements reached between the 

4 governments; and 

5 (B) to the Governor and the legislature of 

6 the State of Hawaii, recommendations for pro7 posed amendments to State law that will enable 

8 the implementation of agreements reached be9 tween the governments. 

10 (3) GOVERNMENTAL AUTHORITY AND POWER.— 

11 The Native Hawaiian governing entity shall be vested 

12 with the inherent powers and privileges of self-govern13 ment of a native government under existing law, ex14 cept as set forth in section 10(a). Said powers and 

15 privileges may be modified by agreement between the 

16 Native Hawaiian governing entity, the United States, 

17 and the State pursuant to paragraph (1), subject to 

18 the limit described by section 10(a). Unless so agreed, 

19 nothing in this Act shall preempt Federal or State 

20 authority over Native Hawaiians or their property 

21 under existing law or authorize the State to tax or 

22 regulate the Native Hawaiian governing entity. 

23 (4) MEMBERSHIP.—Once the United States ex24 tends Federal recognition to the Native Hawaiian 

25 governing entity, the United States will recognize and 


srobinson on DSKHWCL6B1PROD with BILLS
91 

•S 1011 RS

1 affirm the Native Hawaiian governing entity’s inher2 ent power and authority to determine its own mem3 bership criteria, to determine its own membership, 

4 and to grant, deny, revoke, or qualify membership 

5 without regard to whether any person was or was not 

6 deemed to be a qualified Native Hawaiian constituent 

7 under this Act. 

8 (c) CLAIMS.—Nothing in this Act— 

9 (1) alters existing law, including case law, re10 garding obligations of the United States or the State 

11 of Hawaii relating to events or actions that occurred 

12 prior to recognition of the Native Hawaiian gov13 erning entity; 

14 (2) creates, enlarges, revives, modifies, dimin15 ishes, extinguishes, waives, or otherwise alters any 

16 claim or cause of action against the United States or 

17 its officers or the State of Hawaii or its officers, or 

18 any defense (including the defense of statute of limita19 tions) to any such claim or cause of action; or 

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

21 States Code (commonly known as the ‘‘Quiet Title 

22 Act’’), chapter 171 of title 28, United States Code 

23 (commonly known as the ‘‘Federal Tort Claims Act’’), 

24 section 1491 of title 28, United States Code (com25 monly known as the ‘‘Tucker Act’’), section 1505 of 


srobinson on DSKHWCL6B1PROD with BILLS
92 

•S 1011 RS

1 title 28, United States Code (commonly known as the 

2 ‘‘Indian Tucker Act’’), the Hawaii Organic Act (31 

3 Stat. 141), or any other Federal statute, except as ex4 pressly amended by this Act. 

5 SEC. 10. APPLICABILITY OF CERTAIN FEDERAL LAWS. 

6 (a) INDIAN GAMING REGULATORY ACT.— 

7 (1) IN GENERAL.—The Native Hawaiian gov8 erning entity and Native Hawaiians may not con9 duct gaming activities as a matter of claimed inher10 ent authority or under the authority of any Federal 

11 law, including the Indian Gaming Regulatory Act 

12 (25 U.S.C. 2701 et seq.) or under any regulations 

13 thereunder promulgated by the Secretary or the Na14 tional Indian Gaming Commission. 

15 (2) APPLICABILITY.—The prohibition contained 

16 in paragraph (1) regarding the use of Indian Gaming 

17 Regulatory Act (25 U.S.C. 2701 et seq.) and inherent 

18 authority to game applies regardless of whether gam19 ing by Native Hawaiians or the Native Hawaiian 

20 governing entity would be located on land within the 

21 State of Hawaii or within any other State or terri22 tory of the United States. 

23 (b) SINGLE GOVERNING ENTITY.—This Act will result 

24 in the recognition of the single Native Hawaiian governing 

25 entity. Additional Native Hawaiian groups shall not be eliVerDate Nov 24 2008 23:13 Mar 11, 2010 Jkt 089200 PO 00000 Frm 00092 Fmt 6652 Sfmt 6203 E:\BILLS\S1011.RS S1011

srobinson on DSKHWCL6B1PROD with BILLS
93 

•S 1011 RS

1 gible for acknowledgment pursuant to the Federal Acknowl2 edgment Process set forth in part 83 of title 25, Code of 

3 Federal Regulations, or any other administrative acknowl4 edgment or recognition process. 

5 (c) INDIAN CIVIL RIGHTS ACT OF 1968.—The Council 

6 and the subsequent governing entity recognized under this 

7 Act shall be an Indian tribe, as defined in section 201 of 

8 the Indian Civil Rights Act of 1968 (25 U.S.C. 1301) for 

9 purposes of sections 201 through 203 of that Act (25 U.S.C. 

10 1301–1303). 

11 (d) INDIAN PROGRAMS, SERVICES, AND LAWS.— 

12 (1) IN GENERAL.—Notwithstanding any other 

13 provision of this Act, nothing in this Act extends eli14 gibility for any Indian program or service to the Na15 tive Hawaiian governing entity or its members unless 

16 a statute governing such a program or service ex17 pressly provides that Native Hawaiians or the Native 

18 Hawaiian governing entity is eligible for such pro19 gram or service. Nothing in this Act affects the eligi20 bility of any person for any program or service under 

21 any statute or law in effect before the date of enact22 ment of this Act. 

23 (2) APPLICABILITY OF OTHER TERMS.—In Fed24 eral statutes or regulations in force prior to the 

25 United States’ recognition of the Native Hawaiian 


srobinson on DSKHWCL6B1PROD with BILLS
94 

•S 1011 RS

1 governing entity, the terms ‘‘Indian’’ and ‘‘Native 

2 American’’, and references to Indian tribes, bands, 

3 nations, pueblos, villages, or other organized groups 

4 or communities, shall not apply to the Native Hawai5 ian governing entity or its members, unless the Fed6 eral statute or regulation expressly applies to Native 

7 Hawaiians or the Native Hawaiian governing entity. 

8 (e) REAL PROPERTY TRANSFERS.—Section 2116 of the 

9 Revised Statutes (commonly known as the ‘‘Indian Trade 

10 and Intercourse Act’’) (25 U.S.C. 177) does not apply to 

11 any purchase, grant, lease, or other conveyance of lands, 

12 or of any title or claim thereto, from Native Hawaiians, 

13 Native Hawaiian entities, or the Kingdom of Hawaii that 

14 occurred prior to the date of the United States’ recognition 

15 of the Native Hawaiian governing entity. 

16 SEC. 11. SEVERABILITY. 

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

18 it is the intent of Congress that the remaining sections or 

19 provisions shall continue in full force and effect. 

20 SEC. 12. AUTHORIZATION OF APPROPRIATIONS. 

21 There are authorized to be appropriated such sums as 

22 are necessary to carry out this Act. 


srobinson on DSKHWCL6B1PROD with BILLS

srobinson on DSKHWCL6B1PROD with BILLS
Calendar No. 314 

111TH CONGRESS 

2D SESSION S. 1011 

[Report No. 111–162] 

A BILL 

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

MARCH 11, 2010 

Reported with an amendment 


srobinson on DSKHWCL6B1PROD with BILLS