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Week Ending October 26, 2007

H.R.505 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.

The bill establishes US policy regarding Native Hawaiians and provides, in a fashion similar to those established regarding Native Americans, the processes for recognition of the Native Hawaiian self-governing entity by the US.

The Native Hawaiian governing entity would be established and certified by the Secretary of Interior that its governing documents are consistent with Federal law and with the political and legal relationships between the US and US indigenous people. Then the Federal government will recognize the Hawaiian governing entity.

After decades of foreign influence undermining the authority of Hawaiian kings, the kingdom of Hawaii was overthrown in 1893 by a combination of US military, US agribusiness and US religious interests. Those forces then established the Republic of Hawaii overpowering the indigenous rule. Eventually the island was annexed by the US. Hawaii became the 49^th State in 1959. Various congressional acts attempted to reinvigorate and sustain existing natives who were seen to be declining as Native Americans did after they had been displaced and removed from their lands.

The 103^rd Congress passed a law apologizing to Native Hawaiians on behalf of the US for the illegal overthrow of the Native Hawaiian government and called for reconciliation between the two entities. The apology noted that Native Hawaiians never directly relinquished, to the US, their claims to their inherent sovereignty as a people over their national lands. Interior began, in 1999 the process of communicating with Hawaiian interest and this bill is the result.

The bill establishes the US Office for Native Hawaiian Relations in the Department of Interior to be responsible for developing and overseeing the federal relationship with the Native Hawaiian governing entity. ONHR will coordinate with an interim Native Hawaiian Interim Governing Council regarding native Hawaiian resources, rights and lands. The ONHR will also coordinate with an Interagency Coordinating Group and other Federal agencies and the State of Hawaii on policies, practices and proposed actions affecting the Native Hawaiian resources.

The Native Hawaiian Interagency Coordinating Group is to be composed of officials from each Federal agency that administers policies and programs affecting Native Hawaiians.

Sponsor:  Rep. Neil Abercrombie (D-HI-1^st)

Vote: Passed House October 24, 2007 261 to 153. RC 1000The motion to recommit the bill failed 178 to 235 RC 999. The motion to recommit the bill required clarification that State and local laws would prevail on NHA land in regards to hunting and fishing and the bearing of firearms.

Cost to the taxpayers: “CBO estimates that implementing H.R. 505 would cost about $1 million per year over the 2008-2010 period and less than $500,000 in each subsequent year”

Earmark Certification:   H.R. 505 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e) or 9(f) of rule XXI.

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MORE INFORMATION

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

Section 1 sets forth the short title of the bill as the `Native Hawaiian Government Reorganization Act of 2007.'

Section 2. Findings

Section 2 sets forth findings, including findings regarding the history of Native Hawaiians; their interactions with the United States; Congress' authority over Native Hawaiians; Congress' past declaration of the political and legal relationship with Native Hawaiians; and Native Hawaiians expression of their rights to self-determination, self-governance, and economic self-sufficiency.

Section 3. Definitions

Section 3 sets forth definitions of terms used in this Act, including definitions for the term `Native Hawaiian,' which is defined as an individual who is one of the indigenous, native people of Hawai`i and who is a direct lineal descendant of the aboriginal, indigenous, native people who resided in the islands that now comprise the State of Hawai`i on or before January 1, 1893 and who occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawai`i, or an individual who is one of the indigenous, native people of Hawai`i and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act or a direct lineal descendant of that individual.

Section 4. United States policy and purpose

Section 4 reaffirms policies of the United States, including that Native Hawaiians are indigenous, native people; the United States has a political and legal relationship with Native Hawaiians; that Congress has the authority under Article I, section 8, clause 3 of the United States Constitution to enact legislation to address the conditions of Native Hawaiians and has done so in more than 150 Federal laws; that Native Hawaiians have an inherent right to autonomy in their internal affairs, an inherent right of self-determination and self-governance, the right to reorganize a Native Hawaiian governing entity, and the right to become economically self-sufficient; and that the United States shall continue to engage in the process of reconciliation and political relations with Native Hawaiians.

This section also sets forth the purpose of this Act, which is to provide a process for the reorganization of a Native Hawaiian governing entity and the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity.

Section 5. United States Office for Native Hawaiian Relations

Section 5 establishes the United States Office for Native Hawaiian Relations (Office) in the Office of the Secretary of the Department of Interior and sets forth the duties of the Office. The duties include continuing the process of reconciliation with Native Hawaiians; effectuating and coordinating the political and legal relationship between the Native Hawaiian governing entity and the United States; consulting with the Native Hawaiian governing entity before taking any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands; consulting with the Interagency Coordinating Group, other Federal agencies, and the State of Hawai`i on policies, practices, and proposed actions affecting Native Hawaiian resources, rights, or lands; and preparing and submitting an annual report containing certain information to specified Committees of Congress and providing recommendations for any necessary changes to Federal law or regulations. This section does not apply to the Department of Defense but the Secretary of Defense may designate one or more officials as liaison to the Office.

Section 6. Native Hawaiian Interagency Coordinating Group

Section 6 establishes the Native Hawaiian Interagency Coordinating Group, which is to be composed of officials from each Federal agency that administers Native Hawaiian programs, establishes or implements policies that affect Native Hawaiians, or whose actions may significantly or uniquely impact Native Hawaiian resources, rights, or lands, and the Office for Native Hawaiian Relations. The specific duties of the Interagency Coordinating Group are set forth but, generally, the Group will coordinate Federal programs and policies affecting Native Hawaiians. This section does not apply to the Department of Defense but the Secretary of Defense may designate one or more officials as liaison to the Interagency Coordinating Group.

Section 7. Process for the reorganization of the Native Hawaiian Governing Entity and the reaffirmation of the special political and legal relationship between the United States and the Native Hawaiian Governing Entity

Section 7 addresses the process for the reorganization of the Native Hawaiian governing entity and provides for the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity.

This section recognizes the right of Native Hawaiians to reorganize a single Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents. A Commission is established to prepare and maintain a roll of the adult members of the Native Hawaiian community who elect to participate in the reorganization of the Native Hawaiian governing entity and to certify that the adult members of the Native Hawaiian community, who have submitted sufficient documentation and proposed for inclusion on the roll, meet the definition of `Native Hawaiian.'

Commission members will be appointed by the Secretary of the Interior and must have not less than 10 years of experience in the study and determination of Native Hawaiian genealogy and an ability to read and translate into English documents written in the Hawaiian language. Duties of the Commission include preparing and maintaining a roll of the adult members of the Native Hawaiian community and certifying to the Secretary that each of the adult members proposed for inclusion on the roll meet the definition of `Native Hawaiian' set forth in this Act. The certified roll shall be published in the Federal Register. An appeal mechanism may be established by the Secretary for any person whose name is excluded from the roll but who claims to meet the `Native Hawaiian' definition.

The adult members listed on the certified roll may develop criteria for candidates to serve on the Native Hawaiian Interim Governing Council, determine the structure of the Council, and elect members to service on the Council. This section sets forth the powers and activities of the Council, which include developing organic governing documents for the Native Hawaiian governing entity and holding elections to ratify such organic documents.

Following ratification, the organic governing documents shall be submitted to the Secretary. The Secretary must certify that the organic documents contain certain information, including civil rights protection for citizens of the Native Hawaiian governing entity and all persons affected by the exercise of governmental powers and authorities by the Native Hawaiian governing entity.

Upon certification of the organic governing documents and the election of officers of the Native Hawaiian governing entity, the political and legal relationship between the United States and the Native Hawaiian governing entity will automatically be reaffirmed and Federal recognition shall be extended to the Native Hawaiian governing entity.

Section 8. Reaffirmation of delegation of Federal authority; Negotiations; Claims

Section 8 reaffirms the delegation of authority to the State of Hawai`i to address the conditions of Native Hawaiians. It provides that upon reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity, the United States and the State of Hawai`i may negotiate with the Native Hawaiian governing entity on certain issues. Negotiation topics include the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources; the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land use; the exercise of civil and criminal jurisdiction; the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawai`i; any residual responsibilities of the United States and the State of Hawai`i; and grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawai`i. Upon agreement of any matters, the parties may submit proposed amendments to Federal or State law to the Congress or the State of Hawai`i, respectively. Any governmental power or authority of the Native Hawaiian governing entity which is currently exercised by the State or Federal Governments shall only be exercised by the Native Hawaiian governing entity as agreed to in negotiations under this section.

Additionally, this section provides that this Act does not create a cause of action against the United States or any other entity or person; alter existing law regarding obligations on the part of the United States or the State of Hawai`i with regard to Native Hawaiians or any Native Hawaiian entity; create obligations that did not exist in any source of Federal law prior to the date of enactment of this Act; or establish authority for the recognition of more than one Native Hawaiian governing entity. In addition, nothing in this Act creates any breach-of-trust actions, land claims, resource-protection or resource-management claims by or on behalf of Native Hawaiians or the Native Hawaiian governing entity and the United States retains its sovereign immunity from suit to any claim that exists prior to enactment of this Act which could be brought by Native Hawaiians or a Native Hawaiian governing entity. Any claims that may have already accrued and may be brought against the United States shall be rendered nonjusticiable.

The State of Hawai`i also retains its sovereign immunity unless waived in accordance with State law. Finally, nothing in this Act may be construed as overriding section 5 of the Fourteenth Amendment or State sovereign immunity held under the Eleventh Amendment.

Section 9. Applicability of certain Federal laws

This section prohibits the Native Hawaiian governing entity and Native Hawaiians from conducting gaming as a matter of claimed inherent authority or under any Federal law, including the Indian Gaming Regulatory Act in the State of Hawai`i or within any other State or Territory of the United States.

The Secretary may not take land into trust for Native Hawaiians or on behalf of the Native Hawaiian governing entity. It makes clear that the Indian Trade and Intercourse Act does not, has never, and will not apply after enactment to lands or land transfers present, past, or future, in the State of Hawai`i. If a Court construes otherwise, any land transfers before the date of enactment of this Act shall be deemed to have been made in accordance with the Indian Trade and Intercourse Act.

Only one Native Hawaiian governing entity may be recognized pursuant to this Act. Any other groups shall not be eligible for the Federal Acknowledgment Process.

Nothing in this Act alters the civil or criminal jurisdiction of the United States or the State of Hawai`i over lands and persons within the State of Hawai`i, unless otherwise negotiated pursuant to section 8.

Native Hawaiians shall not be eligible for programs and services available to Indians unless otherwise provided under applicable Federal law. The Native Hawaiian governing entity and its citizens shall be eligible for Native Hawaiian programs and services to the extent and in the manner provided by other applicable laws.

Section 10. Severability

The section provides that if any section or provision of this Act is found to be invalid, the remaining sections or provisions shall continue in full force and effect.

Section 11. Authorization of appropriations

This section authorizes such sums as necessary to carry out this Act.

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