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Sunday, July 17, 2005



Excerpts help clear air
about Akaka bill

The U.S. Senate is expected this week to begin consideration of a bill sponsored by Sen. Daniel Akaka that would recognize native Hawaiians at the same level of recognition afforded American Indian tribes and indigenous Alaskans.

The measure is expected to receive unanimous Democratic support in the Senate but is opposed by Republicans led by Sen. Jon Kyl, R-Ariz. It is favored by Hawaii's Democratic congressional delegation, Gov. Linda Lingle and the Office of Hawaiian Affairs. It is opposed by the Grassroot Institute of Hawaii and by Hawaiians who contend it will block any attempt for the islands to ultimately achieve independence from the United States. The bill, if enacted, would provide the means for Hawaiians to create a governing body and would protect federal programs that specifically benefit indigenous Hawaiians.

The following are excerpts from the Akaka bill.

S. 147

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.

Section 1. Short title

This Act may be cited as the "Native Hawaiian Government Reorganization Act of 2005."

Sec. 2. Findings

Congress finds that --

(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. (Native Hawaiians are defined

mainly as lineal descendants of the indigenous people of Hawaii. For the complete definition, see Section 3, paragraph 8 online.)

Sec. 4. U.S. policy and purpose

(a) Policy --The United States reaffirms that:

(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 reorganization of the Native Hawaiian governing entity and the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity for purposes of continuing a government-to-government relationship.

Sec. 5. U.S. Office for Native Hawaiians

(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) continue the process of reconciliation with the Native Hawaiian people in furtherance of the Apology Resolution;

(2) upon the reaffirmation of the political and legal relationship between the Native Hawaiian governing entity and the United States, effectuate and coordinate the special political and legal relationship between the Native Hawaiian governing entity and the United States through the Secretary, and with all other Federal agencies;

(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, the Governor of the State of Hawaii and 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

(2) the Office.

(c) Lead agency --

(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 affect Native Hawaiian resources, rights, or lands;

(2) ensure that each Federal agency develops a policy on consultation with the Native Hawaiian people, and upon the reaffirmation of the political and legal relationship between the Native Hawaiian governing entity and 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 reorganization of the Native Hawaiian governing entity and the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity

(a) Recognition of the Native Hawaiian governing entity -- The right of the Native Hawaiian people to reorganize the Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents is recognized by the United States.

(b) Commission --

(1) In general -- There is authorized to be established a Commission to be composed of nine members for the purposes of:

(A) preparing and maintaining 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

(B) certifying that the adult members of the Native Hawaiian community proposed for inclusion on the roll meet the definition of Native Hawaiian.

(2) Membership --

(A) Appointment -- Within 180 days of the date of enactment of this Act, the Secretary shall appoint the members of the Commission in accordance with subclause (B). Any vacancy on the Commission shall not affect its powers and shall be filled in the same manner as the original appointment.

(B) Requirements -- The members of the Commission shall be Native Hawaiian, as defined in section 3(8), and shall have expertise in the determination of Native Hawaiian ancestry and lineal descendancy.

(4) Duties -- The Commission shall --

(A) 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.

(8) Expiration --The Secretary shall dissolve the Commission upon the reaffirmation of the political and legal relationship between the Native Hawaiian governing entity and the United States.

(c) Process for the reorganization of the Native Hawaiian governing entity --

(1) Roll --

(A) 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 and are certified to be Native Hawaiian as defined in section 3(8) by the Commission.

(D) Consultation -- In making determinations that each of the adult members of the Native Hawaiian community proposed for inclusion on the roll meets the definition of Native Hawaiian in section 3(8), the Commission may consult with Native Hawaiian organizations, agencies of the State of Hawaii including but not limited to the Department of Hawaiian Home Lands, the Office of Hawaiian Affairs, and the State Department of Health, and other entities with expertise and experience in the determination of Native Hawaiian ancestry and lineal descendancy.

(G) Appeal -- The Secretary may establish a mechanism for an appeal for any person whose name is excluded from the roll who claims to meet the definition of Native Hawaiian in section 3(8) and to be 18 years of age or older.

(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 section 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.

(iii) Activities --

(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 the proposed elements of the organic governing documents of the Native Hawaiian governing entity, including but not limited to

(aa) the proposed criteria for citizenship of the Native Hawaiian governing entity;

(bb) 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;

(cc) the proposed civil rights and protection of the rights of the citizens of the Native Hawaiian governing entity and all persons affected by the exercise of governmental powers and authorities of the Native Hawaiian governing entity; and

(dd) other issues determined appropriate by the Council.

(IV) Elections -- 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, hold elections of the officers of the Native Hawaiian governing entity.

Sec. 8. Reaffirmation of delegation of federal authority; negotiations; claims

(b) Negotiations --

(1) In general -- Upon the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity, the United States and the State of Hawaii may 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 the protection of existing rights related to such lands or resources;

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

(C) the exercise of civil and criminal jurisdiction;

(D) the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii; and

(E) any residual responsibilities of the United States and the State of Hawaii.

(2) Amendments to existing laws -- Upon agreement on any matter or matters negotiated with the United States, the State of Hawaii, and the Native Hawaiian governing entity, the parties are authorized to submit:

(A) to the Committee on Indian Affairs of the Senate, the Committee on Energy and Natural Resources of the Senate, and the Committee on Resources of the House of Representatives, recommendations for proposed amendments to Federal law that will enable the implementation of agreements reached between the 3 governments; and

(B) to the Governor and the legislature of the State of Hawaii, recommendations for proposed amendments to State law that will enable the implementation of agreements reached between the 3 governments.

(c) Claims --

(1) In general -- Nothing in this Act serves as a settlement of any claim against the United States.

(2) Statute of limitations -- Any claim against the United States arising under Federal law that:

(A) is in existence on the date of enactment of this Act;

(B) is asserted by the Native Hawaiian governing entity on behalf of the Native Hawaiian people; and

(C) relates to the legal and political relationship between the United States and the Native Hawaiian people;

shall be brought in the court of jurisdiction over such claims not later than 20 years after the date on which Federal recognition is extended to the Native Hawaiian governing entity.

Sec. 9. Applicability of certain federal laws

(a) Indian Gaming Regulatory Act -- Nothing in this Act shall be construed to authorize the Native Hawaiian governing entity to conduct gaming activities under the authority of 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. 11. Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out this Act.


The full text of the Akaka bill can be found at akaka.senate.gov/akakaBill/s147markup.pdf



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