S.344 Native Hawaiian Recognition Bill As Revised in Markup by the Senate Select Committee on Indian Affairs, May 14, 2003 and reported to the Senate on June 27, 2003
On May 14, 2003 the Senate Select Committee on Indian Affairs held a “markup” meeting for S.344. The purpose of such a meeting is to make revisions in the language of a bill and to give committee approval to send the bill to the floor of the Senate. Apparently only three Senators attended the markup meeting for S.344 -- Senator Dan Akaka (D., HI), Senator Dan Inouye (D., HI); and Senator Ben Nighthorse Campbell (R.,CO) who is Chairman of the committee. They agreed by voice vote in ten minutes to order a report to be written and to send the bill to the Senate floor with a favorable recommendaton.
The report was written, and published on June 27, 2003 as Senate Report 108-085. That report can be seen in its entirety (very lengthy!) at:
https://www.angelfire.com/hi5/bigfiles/S344SenateReport108-085.html
To avoid introducing a new bill and starting from scratch, the committee wrote what is technically an “amendment” in which the language of the old version was completely struck out and the new language was inserted after all the strikeouts. What follows is only the new language.
SECTION 1. SHORT TITLE.
This Act may be cited as the `Native Hawaiian Recognition Act of 2003'.
SEC. 2. FINDINGS.
(1) the Constitution vests Congress with the authority to address the conditions of the indigenous, native people of the United States;
(2) Native Hawaiians, the native people of the Hawaiian archipelago that is now part of the United States, are indigenous, native people of the United States;
(3) the United States has a special political and legal responsibility to promote the welfare of the native people of the United States, including Native Hawaiians;
(4) under the treaty making power of the United States, Congress exercised its constitutional authority to confirm treaties between the United States and the Kingdom of Hawaii, and from 1826 until 1893, the United States--
(A) recognized the independence of the Kingdom of Hawaii;
(B) accorded full diplomatic recognition to the Kingdom of Hawaii; and
(C) entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875, and 1887;
(5) pursuant to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42), the United States set aside 203,500 acres of land in the Federal territory that later became the State of Hawaii to address the conditions of Native Hawaiians;
(6) by setting aside 203,500 acres of land for Native Hawaiian homesteads and farms, the Act assists the Native Hawaiian community in maintaining distinct native settlements throughout the State of Hawaii;
(7) approximately 6,800 Native Hawaiian lessees and their family members reside on Hawaiian Home Lands and approximately 18,000 Native Hawaiians who are eligible to reside on the Home Lands are on a waiting list to receive assignments of land;
(8)(A) in 1959, as part of the compact admitting Hawaii into the Union, Congress established a public trust (commonly known as the `ceded lands trust'), for 5 purposes, 1 of which is the betterment of the conditions of Native Hawaiians;
(B) the trust consists of lands, including (submerged lands), natural resources, and the revenues derived from the lands; and
(C) the assets of this public trust have never been completely inventoried or segregated;
(9) throughout the years, Native Hawaiians have repeatedly sought access to the ceded lands in order to establish and maintain native settlements and distinct native communities throughout the State;
(10) the Hawaiian Home Lands and other ceded lands provide an important foundation for the ability of the Native Hawaiian community to maintain the practice of Native Hawaiian culture, language, and traditions, and for the survival and economic self-sufficiency of the Native Hawaiian people;
(11) Native Hawaiians have maintained other distinctly native areas in Hawaii;
(12) on November 23, 1993, Public Law 103-150 (107 Stat. 1510) (commonly known as the `Apology Resolution') was enacted into law, extending an apology on behalf of the United States to the Native people of Hawaii for the United States role in the overthrow of the Kingdom of Hawaii;
(13) the Apology Resolution acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people over their national lands to the United States, either through their monarchy or through a plebiscite or referendum;
(14) the Apology Resolution expresses the commitment of Congress and the President--
(A) to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii;
(B) to support reconciliation efforts between the United States and Native Hawaiians; and
(C) to have Congress and the President, through the President's designated officials, consult with Native Hawaiians on the reconciliation process as called for under the Apology Resolution;
(15) despite the overthrow of the Hawaiian Government, Native Hawaiians have continued to maintain their separate identity as a distinct native community through the formation of cultural, social, and political institutions, and to give expression to their rights as native people to self-determination, self-governance, and economic self-sufficiency;
(16) Native Hawaiians also give expression to their rights as native people to self-determination, self-governance, and economic self-sufficiency--
(A) through the provision of governmental services to Native Hawaiians, including the provision of--
(i) health care services;
(ii) educational programs;
(iii) employment and training programs;
(iv) economic development assistance programs;
(vi) conservation programs;
(vii) fish and wildlife protection;
(viii) agricultural programs;
(ix) native language immersion programs;
(x) native language immersion schools from kindergarten through high school;
(xi) college and master's degree programs in native language immersion instruction; and
(xii) traditional justice programs; and
(B) by continuing their efforts to enhance Native Hawaiian self-determination and local control;
(17) Native Hawaiians are actively engaged in Native Hawaiian cultural practices, traditional agricultural methods, fishing and subsistence practices, maintenance of cultural use areas and sacred sites, protection of burial sites, and the exercise of their traditional rights to gather medicinal plants and herbs, and food sources;
(18) the Native Hawaiian people wish to preserve, develop, and transmit to future Native Hawaiian generations their lands and Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions, to control and manage their own lands, including ceded lands, and to achieve greater self-determination over their own affairs;
(19) this Act provides for a process within the framework of Federal law for the Native Hawaiian people to exercise their inherent rights as a distinct aboriginal, indigenous, native community to reorganize a Native Hawaiian governing entity for the purpose of giving expression to their rights as native people to self-determination and self-governance;
(A) has declared that the United States has a special responsibility for the welfare of the native peoples of the United States, including Native Hawaiians;
(B) has identified Native Hawaiians as a distinct indigenous group within the scope of its Indian affairs power, and has enacted dozens of statutes on their behalf pursuant to its recognized trust responsibility; and
(C) has delegated broad authority to administer a portion of the Federal trust responsibility to the State of Hawaii;
(21) the United States has recognized and reaffirmed the special political and legal relationship with the Native Hawaiian people through the enactment of the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (Public Law 86-3; 73 Stat. 4), by--
(A) ceding to the State of Hawaii title to the public lands formerly held by the United States, and mandating that those lands be held in public trust for 5 purposes, 1 of which is for the betterment of the conditions of Native Hawaiians; and
(B) transferring the United States responsibility for the administration of the Hawaiian Home Lands to the State of Hawaii, but retaining the authority to enforce the trust, including the exclusive right of the United States to consent to any actions affecting the lands that comprise the corpus of the trust and any amendments to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42) that are enacted by the legislature of the State of Hawaii affecting the beneficiaries under that Act;
(22) the United States continually has recognized and reaffirmed that--
(A) Native Hawaiians have a cultural, historic, and land-based link to the aboriginal, native people who exercised sovereignty over the Hawaiian Islands;
(B) Native Hawaiians have never relinquished their claims to sovereignty or their sovereign lands;
(C) the United States extends services to Native Hawaiians because of their unique status as the aboriginal, native people of a once sovereign nation with whom the United States has a political and legal relationship; and
(D) the special trust relationship of American Indians, Alaska Natives, and Native Hawaiians to the United States arises out of their status as aboriginal, indigenous, native people of the United States; and
(23) the State of Hawaii supports the recognition of the Native Hawaiian governing entity by the United States as evidenced by 2 unanimous resolutions enacted by the Hawaii State Legislature in the 2000 and 2001 sessions of the Legislature and by the testimony of the Governor of the State of Hawaii before the Committee on Indian Affairs of the Senate on February 25, 2003.
SEC. 3. DEFINITIONS.
(1) ABORIGINAL, INDIGENOUS, NATIVE PEOPLE- The term `aboriginal, indigenous, native people' means people whom Congress has recognized as the original inhabitants of the lands and who exercised sovereignty prior to Western contact in the areas that later became part of the United States.
(2) ADULT MEMBER- The term `adult member' means a Native Hawaiian who has attained the age of 18 at the time the preparation of the roll authorized under section 7(b)(1)(A) is initiated.
(3) APOLOGY RESOLUTION- The term `Apology Resolution' means Public Law 103-150 (107 Stat. 1510), a Joint Resolution extending an apology to Native Hawaiians on behalf of the United States for the participation of agents of the United States in the January 17, 1893, overthrow of the Kingdom of Hawaii.
(4) COUNCIL- The term `council' means the Native Hawaiian Interim Governing Council established under section 7(b)(2).
(5) INDIGENOUS, NATIVE PEOPLE- The term `indigenous, native people' means the lineal descendants of the aboriginal, indigenous, native people of the United States.
(6) INTERAGENCY COORDINATING GROUP- The term `Interagency Coordinating Group' means the Native Hawaiian Interagency Coordinating Group established under section 6.
(7) NATIVE HAWAIIAN- For the purpose of establishing the roll authorized under section 7(b)(1) and before the recognition by the United States of the Native Hawaiian governing entity, the term `Native Hawaiian' means--
(A) an individual who is a member of the indigenous, native people of Hawaii who are the direct lineal descendants of the aboriginal, indigenous, native people who--
(i) resided on or before January 1, 1893, in the islands that now comprise the State of Hawaii; and
(ii) occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii; and
(B) an individual who was a Native Hawaiian eligible during 1921 for the programs authorized by the Hawaiian Homes Commission Act (42 Stat. 108, chapter 42) (including lineal descendants of that individual).
(8) NATIVE HAWAIIAN GOVERNING ENTITY- The term `Native Hawaiian governing entity' means the governing entity organized by the Native Hawaiian people.
(9) OFFICE- The term `Office' means the United States Office for Native Hawaiian Relations established under section 5(a).
(10) SECRETARY- The term `Secretary' means the Secretary of the Interior.
SEC. 4. UNITED STATES POLICY AND PURPOSE.
(a) POLICY- The United States reaffirms that--
(1) Native Hawaiians are a unique and distinct, indigenous, native people, with whom the United States has a special political and legal relationship;
(2) the United States has a special political and legal responsibility to promote the welfare of Native Hawaiians;
(3) Congress possesses the authority under the Constitution to enact legislation to address the conditions of Native Hawaiians and has exercised this authority through the enactment of--
(A) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42);
(B) the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (Public Law 86-3; 73 Stat. 4); and
(C) more than 150 other Federal laws addressing the conditions of Native Hawaiians;
(4) Native Hawaiians have--
(A) an inherent right to autonomy in their internal affairs;
(B) an inherent right of self-determination and self-governance;
(C) the right to reorganize a Native Hawaiian governing entity; and
(D) the right to become economically self-sufficient; and
(5) the United States shall continue to engage in a process of reconciliation and political relations with the Native Hawaiian people.
(b) PURPOSE- The purpose of this Act is to provide a process for the recognition by the United States of the Native Hawaiian governing entity for purposes of continuing a government-to-government relationship.
SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONS.
(a) ESTABLISHMENT- There is established within the Office of the Secretary the United States Office for Native Hawaiian Relations.
(b) DUTIES- The Office shall--
(1) effectuate and coordinate the special political and legal responsibility between the Native Hawaiian people and the United States, and on the recognition of the Native Hawaiian governing entity by the United States, between the Native Hawaiian governing entity and the United States through the Secretary, and with all other Federal agencies;
(2) continue the process of reconciliation with the Native Hawaiian people, and on the recognition of the Native Hawaiian governing entity by the United States, continue the process of reconciliation with the Native Hawaiian governing entity;
(3) fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian governing entity by providing timely notice to, and consulting with, the Native Hawaiian people and the Native Hawaiian governing entity before taking any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands;
(4) consult with the Interagency Coordinating Group, other Federal agencies, and with relevant agencies of the State of Hawaii on policies, practices, and proposed actions affecting Native Hawaiian resources, rights, or lands; and
(5) prepare and submit to the Committee on Indian Affairs and the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives, an annual report detailing the activities of the Interagency Coordinating Group that are undertaken with respect to the continuing process of reconciliation and to effect meaningful consultation with the Native Hawaiian governing entity and providing recommendations for any necessary changes to Federal law or regulations promulgated under the authority of Federal law.
SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.
(a) ESTABLISHMENT- In recognition that Federal programs authorized to address the conditions of Native Hawaiians are largely administered by Federal agencies other than the Department of the Interior, there is established an interagency coordinating group to be known as the `Native Hawaiian Interagency Coordinating Group'.
(b) COMPOSITION- The Interagency Coordinating Group shall be composed of officials, to be designated by the President, from--
(1) each Federal agency 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
(1) IN GENERAL- The Department of the Interior shall serve as the lead agency of the Interagency Coordinating Group.
(2) MEETINGS- The Secretary shall convene meetings of the Interagency Coordinating Group.
(d) DUTIES- The Interagency Coordinating Group shall--
(1) coordinate Federal programs and policies that affect Native Hawaiians or actions by any agency or agencies of the Federal Government that may significantly or uniquely impact on Native Hawaiian resources, rights, or lands;
(2) ensure that each Federal agency develops a policy on consultation with the Native Hawaiian people, and on recognition of the Native Hawaiian governing entity by the United States, consultation with the Native Hawaiian governing entity; and
(3) ensure the participation of each Federal agency in the development of the report to Congress authorized in section 5(b)(5).
SEC. 7. PROCESS FOR THE RECOGNITION OF THE NATIVE HAWAIIAN GOVERNING ENTITY.
(a) RECOGNITION OF THE NATIVE HAWAIIAN GOVERNING ENTITY- The right of the Native Hawaiian people to organize for their common welfare and to adopt appropriate organic governing documents is recognized by the United States.
(b) PROCESS FOR RECOGNITION-
(i) IN GENERAL- The Office, in consultation with the adult members of the Native Hawaiian community who elect to participate in the reorganization of the Native Hawaiian governing entity, shall prepare and maintain a roll for the purpose of the reorganization of the Native Hawaiian governing entity.
(ii) CONTENTS- The roll shall include the names of the adult members of the Native Hawaiian community who elect to participate in the reorganization of the Native Hawaiian governing entity.
(B) CERTIFICATION OF ROLL-
(i) IN GENERAL- The adult members of the Native Hawaiian community, in consultation with the Office, shall certify to the Secretary that the individuals listed on the roll meet the definition of section 3(7).
(ii) PUBLICATION- On certification of the roll, the Secretary shall publish the roll.
(C) APPEAL- The Secretary may establish a mechanism for an appeal for any person whose name is excluded from the roll who meets the definition under section 3(7).
(D) PUBLICATION; UPDATE- The Secretary shall--
(i) publish the roll regardless of whether appeals are pending; and
(ii) update the roll and the publication of the roll on the final disposition of any appeal.
(E) FAILURE TO ACT- If the Secretary fails to publish the roll, not later than 90 days after the date on which the roll is submitted to the Secretary, the Office shall publish the roll notwithstanding any order or directive issued by the Secretary or any other official of the Department of the Interior to the contrary.
(F) EFFECT OF PUBLICATION- The publication of the roll shall serve as the basis for the eligibility of adult members of the Native Hawaiian community whose names are listed on the roll to participate in all referenda and elections associated with the reorganization of the Native Hawaiian governing entity.
(2) ORGANIZATION OF THE NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL-
(A) ORGANIZATION- The adult members of the Native Hawaiian community listed on the roll published under this subsection may--
(i) develop criteria for candidates to be elected to serve on the Native Hawaiian Interim Governing Council;
(ii) determine the structure of the Council; and
(iii) elect members from individuals listed on the roll published under this subsection to the Council.
(B) ELECTION- On the request of the adult members of the Native Hawaiian community listed on the roll published under this subsection, the Office may assist individuals listed on the roll in holding an election by secret ballot (including, at the option of the Office, absentee and mail balloting) to elect the membership of the Council.
(i) IN GENERAL- The Council may--
(I) represent individuals on the roll published under this subsection in the implementation of this Act; and
(II) shall have no powers other than powers given to the Council under this Act.
(ii) FUNDING- The Council may enter into a contract with, or obtain a grant from, any Federal or State agency to carry out clause (iii).
(I) IN GENERAL- The Council may conduct a referendum among the adult members of the Native Hawaiian community listed on the roll published under this subsection for the purpose of determining--
(aa) the proposed elements of the organic governing documents of the Native Hawaiian governing entity;
(bb) the proposed criteria for citizenship of the Native Hawaiian governing entity;
(cc) the proposed powers and authorities to be exercised by the Native Hawaiian governing entity, as well as the proposed privileges and immunities of the Native Hawaiian governing entity;
(dd) the proposed civil rights and protection of the rights of the citizens of the Native Hawaiian governing entity and all persons subject to the authority of the Native Hawaiian governing entity; and
(ee) other issues determined appropriate by the Council.
(II) DEVELOPMENT OF ORGANIC GOVERNING DOCUMENTS- Based on the referendum, the Council may develop proposed organic governing documents for the Native Hawaiian governing entity.
(III) DISTRIBUTION- The Council may distribute to all adult members of the Native Hawaiian community listed on the roll published under this subsection--
(aa) a copy of the proposed organic governing documents, as drafted by the Council; and
(bb) a brief impartial description of the proposed organic governing documents.
(aa) IN GENERAL- The Council may hold elections for the purpose of ratifying the proposed
organic governing documents and, on certification of the organic governing documents by the Secretary in accordance with paragraph (4), hold elections of the officers of the Native Hawaiian governing entity.
(bb) ASSISTANCE- On the request of the Council, the Office may assist the Council in conducting the elections.
(D) TERMINATION- The Council shall cease to exist, and shall have no power or authority under this Act, after the duly elected officers of the Native Hawaiian governing entity take office.
(3) SUBMITTAL OF ORGANIC GOVERNING DOCUMENTS- Following the organization of the Native Hawaiian governing entity and the adoption of organic governing documents, the Council shall submit the organic governing documents of the Native Hawaiian governing entity to the Secretary.
(A) IN GENERAL- Not later than 90 days after the date on which the Council submits the organic governing documents to the Secretary, the Secretary shall certify that the organic governing documents--
(i) establish the criteria for citizenship in the Native Hawaiian governing entity;
(ii) were adopted by a majority vote of adult members of the Native Hawaiian community whose names are listed on the roll published by the Secretary;
(iii) provide for the exercise of governmental authorities by the Native Hawaiian governing entity;
(iv) provide authority for the Native Hawaiian governing entity to negotiate with Federal, State, and local governments, and other entities;
(v) prevent the sale, disposition, lease, or encumbrance of lands, interests in lands, or other assets of the Native Hawaiian governing entity without the consent of the Native Hawaiian governing entity;
(vi) provide for the protection of the civil rights of the citizens of the Native Hawaiian governing entity and all persons subject to the authority of the Native Hawaiian governing entity, and ensure that the Native Hawaiian governing entity exercises its authority in a manner consistent with section 202 of the Act of April 11, 1968 (25 U.S.C. 1302); and
(vii) are consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous native people of the United States.
(B) RESUBMISSION IN CASE OF NONCOMPLIANCE WITH FEDERAL LAW-
(i) RESUBMISSION BY THE SECRETARY- If the Secretary determines that the organic governing documents, or any part of the documents, are not consistent with applicable Federal law, the Secretary shall resubmit the organic governing documents to the Council, along with a justification for each of the Secretary's findings as to why the provisions are not consistent with the law.
(ii) AMENDMENT AND RESUBMISSION OF ORGANIC GOVERNING DOCUMENTS- If the organic governing documents are resubmitted to the Council by the Secretary under clause (i), the Council shall--
(I) amend the organic governing documents to ensure that the documents comply with applicable Federal law; and
(II) resubmit the amended organic governing documents to the Secretary for certification in accordance with this paragraph.
(C) CERTIFICATIONS DEEMED MADE- The certifications under subparagraph (B) shall be deemed to have been made if the Secretary has not acted within 90 days after the date on which the Council has submitted the organic governing documents of the Native Hawaiian governing entity to the Secretary.
(5) ELECTIONS- On completion of the certifications by the Secretary under paragraph (4), the Council may hold elections of the officers of the Native Hawaiian governing entity.
(6) FEDERAL RECOGNITION- Notwithstanding any other provision of law, upon the election of the officers of the Native Hawaiian governing entity and the certifications by the Secretary required under paragraph (4), the United States extends Federal recognition to the Native Hawaiian governing entity as the representative governing body of the Native Hawaiian people.
SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS.
(a) REAFFIRMATION- The delegation by the United States of authority to the State of Hawaii to address the conditions of the indigenous, native people of Hawaii contained in the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union' approved March 18, 1959 (Public Law 86-3; 73 Stat. 5) is reaffirmed.
(1) IN GENERAL- Upon the Federal recognition of the Native Hawaiian governing entity by the United States, the United States and the State of Hawaii may enter into negotiations with the Native Hawaiian governing entity designed to lead to an agreement addressing such matters as--
(A) the transfer of lands, natural resources, and other assets; and
(B) the exercise of governmental authority over those lands, natural resources, and other assets.
(2) CLAIMS- Nothing in this Act serves as a settlement of any claim against the United States.
SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS.
(a) INDIAN GAMING REGULATORY ACT- Nothing in this Act authorizes the Native Hawaiian governing entity to conduct gaming activities under the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
(b) BUREAU OF INDIAN AFFAIRS- Nothing contained in this Act provides an authorization for eligibility to participate in any programs and services provided by the Bureau of Indian Affairs for any persons not otherwise eligible for the programs or services.
SEC. 10. ETHICS.
The provisions of section 208(a) of title 18, United States Code, prohibiting involvement by a Federal government officer or employee in particular matters if the officer or employee, or spouse or minor child of the officer or employee, has a financial interest shall not apply to Native Hawaiians employed by the Office if the financial interest that would be affected by the particular matter involved results solely from the status as a Native Hawaiian of the officer or employee, or of the spouse or minor child.
SEC. 11. SEVERABILITY.
If any section or provision of this Act is held invalid, it is the intent of Congress that the remaining sections or provisions shall continue in full force and effect.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS
There are authorized to be appropriated such sums as are necessary to carry out this Act.
Calendar No. 185
108th CONGRESS
1st Session
S. 344
[Report No. 108-85]
A BILL
Expressing 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, and for other purposes.
June 27, 2003
Reported with an amendment
END