THE SENATE

S.B. NO.

1520

TWENTY-SIXTH LEGISLATURE, 2011

S.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO GOVERNMENT.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that federal legislation, referred to as the "Native Hawaiian Government Reorganization Act" has been considered by the United States Congress since 2000, and remains under consideration. As Congress continues its deliberations on this critical measure, it is the intent of the legislature to address the State's response by:

(1) Expressing the policy of the State of Hawaii regarding its relationship with Native Hawaiians; and

(2) Providing a process for the reorganization of a first nation government by Native Hawaiians and its subsequent recognition by the State of Hawaii.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

FIRST NATION GOVERNMENT

   -1 Findings. The legislature finds that:

(1) Native Hawaiians, the native people of the Hawaiian archipelago that is now part of the United States and the State of Hawaii, are the indigenous, native peoples of the State of Hawaii, and the Native Hawaiian people are a distinctly native community;

(2) The State of Hawaii has a special political and legal relationship with, and has long enacted legislation to promote the welfare of, the Native Hawaiian people;

(3) The United States, through Congress, exercised its constitutional authority to confirm a treaty between the United States and the government that represented the Native Hawaiian people, and from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full diplomatic recognition to the Hawaiian government, and entered into agreements with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875, and 1887.

(4) Pursuant to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42), the United States set aside approximately 203,500 acres of land in trust to better address the conditions of Native Hawaiians in the federal territory that later became the State of Hawaii and in enacting the Hawaiian Homes Commission Act, 1920, Congress acknowledged the Native Hawaiian people as a native people of the United States, as evidenced by the committee report, which notes that Congress relied on the Indian affairs power and the War Powers, including the power to make peace;

(5) By setting aside 203,500 acres of land in trust for Native Hawaiian homesteads and farms, the Hawaiian Homes Commission Act, 1920, assists the members of the Native Hawaiian community in maintaining distinctly native communities throughout the State of Hawaii;

(6) Approximately 9,800 Native Hawaiian families reside on the Hawaiian home lands, and approximately 25,000 Native Hawaiians who are eligible to reside on the Hawaiian home lands are on a waiting list to receive assignments of Hawaiian home lands;

(7) In 1959, as part of the compact with the United States admitting Hawaii into the Union, Congress delegated the authority and responsibility to administer the Hawaiian Homes Commission Act, 1920, lands in trust for Native Hawaiians and established a new public trust, commonly known as the ceded lands trust, for five purposes, one of which is the betterment of the conditions of Native Hawaiians, and Congress thereby reaffirmed its recognition of the Native Hawaiians as a distinctly native community with a direct lineal and historical succession to the aboriginal, indigenous people of Hawaii. The public trust consists of lands, including submerged lands, natural resources, and the revenues derived from the lands; and the assets of this public trust have never been completely inventoried or segregated;

(8) Native Hawaiians have continuously sought access to the ceded lands in order to establish and maintain native settlements and distinct native communities throughout the State;

(9) The Hawaiian home lands and other ceded lands provide important native land reserves and resources for the Native Hawaiian community to maintain the practice of Native Hawaiian culture, language, and traditions, and for the continuity, survival, and economic self-sufficiency of the Native Hawaiian people as a distinctly native political community;

(10) Native Hawaiians continue to maintain other distinctly native areas in Hawaii, including native lands that date back to the alii and kuleana lands reserved under the Kingdom of Hawaii;

(11) Through the Sovereign Councils of Hawaiian Homelands Assembly and Native Hawaiian homestead associations, Native Hawaiian civic associations, charitable trusts established by the Native Hawaiian alii, nonprofit native service providers, and other community associations, the Native Hawaiian people have actively maintained native traditions and customary usages throughout the Native Hawaiian community, and the federal and state courts have continuously recognized the right of the Native Hawaiian people to engage in certain customary practices and usages on public lands;

(12) In 1978, the State of Hawaii held a constitutional convention at which the office of Hawaiian affairs was established, approved by the voters on November 7, 1978, (article XII, sections 5 and 6, Hawaii State Constitution), and codified as chapter 10, Hawaii Revised Statutes;

(13) At the 1978 constitutional convention, the State of Hawaii also found that many Native Hawaiian values and rights should be included in the Hawaii State Constitution, and the election of November 1978 also established state affirmation and protection of "all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaa tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights." (Article XII, section 7, Hawaii State Constitution);

(14) The creation of the office of Hawaiian affairs and the expression of Native Hawaiian rights in the Hawaii State Constitution reflect the acknowledgment of the 1978 Constitutional Convention and the people of Hawaii that assets and rights for Native Hawaiians were long overdue;

(15) On November 23, 1993, Public Law 103-150 (107 Stat. 1510), commonly known as the "Apology Resolution", was enacted into law by the United States Congress, extending an apology to Native Hawaiians on behalf of the people of the United States for the United States' role in the overthrow of the Kingdom of Hawaii;

(16) 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 to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum;

(17) The Apology Resolution expresses the commitment of Congress and the President to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and Native Hawaiians; and 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;

(18) Pursuant to the Apology Resolution, the United States Departments of Justice and the Interior conducted reconciliation hearings with the Native Hawaiian people in 1999 and issued a joint report entitled, "From Mauka to Makai: The River of Justice Must Flow Freely", which identified promoting the reorganization of a Native Hawaiian government as a priority recommendation for continuing the process of reconciliation;

(19) Despite the overthrow of the government of the Kingdom of Hawaii, Native Hawaiians have continued to maintain their separate identity as a single distinctly native political community through cultural, social, and political institutions, and to give expression to their rights as native people to self-determination, self-governance, and economic self-sufficiency;

(20) There is clear continuity between the aboriginal, indigenous, native people of the Kingdom of Hawaii and their successors, the Native Hawaiian people today;

(21) Native Hawaiians have also given expression to their rights as native people to self-determination, self-governance, and economic self-sufficiency through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, economic development assistance programs, children's services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs, native language immersion schools from kindergarten through high school, college and master's degree programs in native language immersion instruction, and traditional justice programs; and by continuing their efforts to enhance Native Hawaiian self-determination and local control;

(22) Native Hawaiian people 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;

(23) The Native Hawaiian people wish to preserve, develop, and transmit to future generations of Native Hawaiians 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;

(24) This chapter provides a process for the Native Hawaiian people to exercise their inherent rights as a distinct, indigenous, native community to reorganize a first nation government for the purpose of giving expression to their rights as a native people to self-determination and self-governance;

(25) The United States has:

(A) Declared that the United States has a special political and legal relationship for the welfare of the native peoples of the United States, including Native Hawaiians;

(B) Identified Native Hawaiians as an indigenous, distinctly native people of the United States within the scope of its authority under the Constitution of the United States of America, and has enacted scores of statutes on their behalf; and

(C) Delegated broad authority to the State of Hawaii to administer some of the United States' responsibilities as they relate to the Native Hawaiian people and their lands;

(26) 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 as a public trust for five purposes, one 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 exclusive right of the United States to consent to any actions affecting the lands included in 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 the Act; and

(27) The United States has continually recognized and reaffirmed that:

(A) Native Hawaiians have a direct genealogical, cultural, historic, and land-based connection to their forebears, the aboriginal, indigenous, native people who exercised original 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 native people of a prior-sovereign nation with whom the United States has a special political and legal relationship; and

(D) The special 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.

   -2 Definitions. As used in this chapter:

"Aboriginal, indigenous, native people" means those people recognized as the original inhabitants of the lands that later became part of the United States and who exercised sovereignty in the areas that later became part of the United States.

"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.

"Commission" means the commission established under section    -4.

"Council" means the interim first nation governing council established under section    -6.

"First nation government" means the governing entity organized pursuant to this chapter by the qualified Native Hawaiian constituents.

"Governor" means the governor of the State of Hawaii or the governor's designee.

"Indigenous, native people" means the lineal descendants of the aboriginal, indigenous, native people of the United States.

"Native Hawaiian membership organization" means an organization that:

(1) Serves and represents the interests of Native Hawaiians, has as a primary and stated purpose the provision of services to Native Hawaiians, and has expertise in Native Hawaiian affairs;

(2) Has leaders who are elected democratically, or selected through traditional Native Hawaiian leadership practices, by members of the Native Hawaiian community;

(3) Advances the cause of Native Hawaiians culturally, socially, economically, or politically;

(4) Is a membership organization or association; and

(5) Has an accurate and reliable list of Native Hawaiian members.

"Qualified Native Hawaiian constituent" means, for the purposes of establishing the roll authorized under section    ‑5, and prior to the recognition by the United States of the Native Hawaiian governing entity, an individual who the commission determines has satisfied the following criteria and who makes a written statement certifying that the individual:

(1) Is:

(A) An individual who is one of the indigenous, native people of Hawaii and who is a direct lineal descendant of the aboriginal, indigenous, native people who:

(i) Resided in the islands that now comprise the State of Hawaii on or before January 1, 1893; and

(ii) Occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii; or

(B) An individual who is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42), or a direct lineal descendant of that individual;

(2) Wishes to participate in the reorganization of the Native Hawaiian governing entity;

(3) Is eighteen years of age or older;

(4) Is a citizen of the United States; and

(5) Maintains a significant cultural, social, or civic connection to the Native Hawaiian community, as evidenced by satisfying two or more of the following ten criteria:

(A) Resides in the State of Hawaii;

(B) Resides outside the State of Hawaii and:

(i) Currently serves or has served, or has a parent or spouse who currently serves or has served, as a member of the armed forces or as an employee of the federal government; and resided in the State of Hawaii prior to the time the individual or the individual's parent or spouse left the State of Hawaii to serve as a member of the armed forces or as an employee of the federal government; or

(ii) Currently is or was enrolled, or has a parent or spouse who currently is or was enrolled, in an accredited institution of higher education outside the State of Hawaii; and resided in the State of Hawaii prior to the time the individual or the individual's parent or spouse left the State of Hawaii to attend the institution;

(C) (i) Is or was eligible to be a beneficiary of the programs authorized by the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42), and resides or resided on land set aside as Hawaiian home lands, as defined in the Hawaiian Homes Commission Act; or

(ii) Is a child or grandchild of an individual who is or was eligible to be a beneficiary of the programs authorized by the Act and who resides or resided on land set aside as Hawaiian home lands, as defined in the Hawaiian Homes Commission Act;

(D) Is or was eligible to be a beneficiary of the programs authorized by the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42);

(E) Is a child or grandchild of an individual who is or was eligible to be a beneficiary of the programs authorized by the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42);

(F) Resides on or has an ownership interest in, or has a parent or grandparent who resides on or has an ownership interest in, kuleana land that is owned in whole or in part by a person who, pursuant to a genealogy verification by the office of Hawaiian affairs or by court order, is a lineal descendant of the person or persons who received the original title to the kuleana land, defined as lands granted to native tenants pursuant to Haw. L. 1850, p. 202, entitled "An Act Confirming Certain Resolutions of the King and Privy Council Passed on the 21st day of December, A.D. 1849, Granting to the Common People Allodial Titles for Their Own Lands and House Lots, and Certain Other Privileges", as amended by Haw. L. 1851, p. 98, entitled "An Act to Amend An Act Granting to the Common People Allodial Titles for Their Own Lands and House Lots, and Certain Other Privileges" and as further amended by any subsequent legislation;

(G) Is, or is the child or grandchild of, an individual who has been or was a student for at least one school year at a school or program taught through the medium of the Hawaiian language under section 302H-6, or at a school founded and operated primarily or exclusively for the benefit of Native Hawaiians;

(H) Has been a member since September 30, 2009, of at least one Native Hawaiian membership organization;

(I) Has been a member since September 30, 2009, of at least two Native Hawaiian membership organizations;

(J) Is regarded as Native Hawaiian and whose mother or father is or, if deceased, was regarded as Native Hawaiian by the Native Hawaiian community, as evidenced by sworn affidavits from two or more citizens certified by the commission as possessing expertise in the social, cultural, and civic affairs of the Native Hawaiian community.

   -3 State of Hawaii policy. The State of Hawaii reaffirms that:

(1) Native Hawaiians are a unique and distinct, indigenous, native people with whom the State of Hawaii has a special political and legal relationship, which includes promoting the welfare of Native Hawaiians;

(2) The legislature possesses and hereby exercises the authority under the Hawaii State Constitution, including article XII, sections 5 through 7, to enact legislation to address the conditions of Native Hawaiians, and has exercised this authority previously through chapter 10, which established the office of Hawaiian affairs, and numerous other state laws addressing the conditions of Native Hawaiians;

(3) 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 first nation government; and

(D) The right to become economically self-sufficient;

(4) The State of Hawaii shall continue to engage in a process of reconciliation and political relations with the Native Hawaiian people and their first nation government, once reorganized; and

(5) The right of qualified Native Hawaiian constituents to reorganize a first nation government to provide for their common welfare and to adopt appropriate organic governing documents is recognized by the State of Hawaii.

   -4 Commission. (a) The governor shall establish and appoint a nine-member commission for the purposes of:

(1) Preparing and maintaining a roll of qualified Native Hawaiian constituents; and

(2) Certifying that the individuals on the roll of qualified Native Hawaiian constituents meet the definition of a qualified Native Hawaiian constituent set forth in section    -2.

(b) Not later than one hundred eighty days after the effective date of this Act, the governor shall appoint the members of the commission to develop the roll of qualified Native Hawaiian constituents for the purposes of reorganizing a first nation government.

In making an appointment under this subsection, the governor may take into consideration a recommendation made by any Native Hawaiian membership organization.

The governor may not appoint any official of the State of Hawaii to the commission.

A vacancy on the commission shall:

(1) Not affect the powers of the commission; and

(2) Be filled in the same manner as the original appointment.

(c) Members of the commission shall serve without compensation but shall be allowed travel expenses, including per diem in lieu of subsistence while away from their homes or regular places of business in the performance of services for the commission.

(d) The commission may, without regard to the civil service laws under chapter 76 and rules adopted pursuant to chapter 76, appoint and terminate an executive director and other additional personnel as are necessary to enable the commission to perform the duties of the commission.

The commission may fix the compensation of the executive director and other personnel.

(e) The commission may procure temporary and intermittent services.

(f) The governor shall dissolve the commission upon election of the interim first nation governing council.

   -5 Roll. (a) The roll shall include the names of the qualified Native Hawaiian constituents who are certified by the commission to be qualified Native Hawaiian constituents, as defined in section    -2.

(b) Each individual claiming to be a qualified Native Hawaiian constituent shall submit to the commission documentation in the form established by the commission that is sufficient to enable the commission to determine whether the individual meets the definition in section    -2.

(c) The commission shall establish a standard format for the submission of documentation and a process to ensure veracity of the information in accordance with subsection (d).

(d) The commission shall:

(1) Identify the types of documentation that may be submitted to the commission that would enable the commission to determine whether an individual meets the definition of qualified Native Hawaiian constituent set forth in section    -2;

(2) Recognize an individual's identification of lineal ancestors on the 1890 Census by the Kingdom of Hawaii as a reliable indicia of lineal descent from the aboriginal, indigenous, native people who resided in the islands that now comprise the State of Hawaii on or before January 1, 1893; and

(3) Permit elderly Native Hawaiians and other qualified Native Hawaiian constituents lacking birth certificates or other documentation due to birth on Hawaiian home lands or other similar circumstances to establish lineal descent by sworn affidavits from two or more qualified Native Hawaiian constituents.

(e) The commission shall publish notices of the information described in subsections (c) and (d) that individuals claiming to be qualified Native Hawaiian constituents shall submit to the commission.

(f) In making determinations that each individual proposed for inclusion on the roll of qualified Native Hawaiian constituents meets the definition of qualified Native Hawaiian constituent in section    -2, the commission may consult with bona fide Native Hawaiian membership organizations, agencies of the State of Hawaii, including the department of Hawaiian home lands, the office of Hawaiian affairs, and the department of health, and other entities with expertise and experience in the determination of Native Hawaiian ancestry and lineal descendancy.

(g) The commission shall inform an individual:

(1) Whether the individual has been deemed by the commission as a qualified Native Hawaiian constituent; and

(2) Of a right to appeal the decision if deemed not to be a qualified Native Hawaiian constituent.

(h) The commission shall:

(1) Submit the roll containing the names of those individuals who meet the definition of qualified Native Hawaiian constituent in section    -2 to the governor within two years from the date on which the commission is fully composed; and

(2) Certify to the governor that each of the qualified Native Hawaiian constituents proposed for inclusion on the roll meets the definition set forth in section    -2.

(i) Upon certification by the commission to the governor that those listed on the roll meet the definition of qualified Native Hawaiian constituent in section    -2, the commission shall publish the notice of the certification of the roll, notwithstanding pending appeals pursuant to subsection (j).

(j) The governor, in consultation with the commission, shall establish a mechanism for an administrative appeal for any person whose name is excluded from the roll who claims to meet the definition of qualified Native Hawaiian constituent in section    -2.

(k) The commission shall:

(1) Publish the notice of the certification of the roll regardless of whether appeals are pending;

(2) Update the roll and provide notice of the updated roll on the final disposition of any appeal;

(3) Update the roll to include any person who has been certified by the commission as meeting the definition of qualified Native Hawaiian constituent in section    -2 after the initial publication of the roll or after any subsequent publications of the roll; and

(4) Provide a copy of the roll and any updated rolls to the council.

(l) The publication of the initial and updated roll shall serve as the basis for the eligibility of qualified Native Hawaiian constituents whose names are listed on those rolls to participate in the reorganization of the Native Hawaiian governing entity.

   -6 Process of reorganization and ratification of governing documents and elections. (a) The commission shall hold a minimum of three meetings, and each meeting shall be at least two working days, of the qualified Native Hawaiian constituents listed on the roll established under this section, to:

(1) Develop criteria for candidates to be elected to serve on the interim first nation governing council;

(2) Determine the structure of the council, including the number of council members; and

(3) Elect members from individuals listed on the roll established under section    ‑5 to the council.

(b) The interim first nation governing council shall represent those listed on the roll established under section    ‑5 in the implementation of this Act; provided that the council shall have no powers other than powers given to the council under this Act.

(c) The commission and the council may enter into contracts with, or obtain grants from, any federal or state agency to carry out the purposes of this chapter.

(d) The council shall conduct, among the qualified Native Hawaiian constituents listed on the roll established under section    ‑5, a referendum for the purpose of determining the proposed elements of the organic governing documents of the first nation government, including:

(1) The proposed criteria for future membership in the first nation governing entity, provided that membership is voluntary and can be relinquished;

(2) The proposed form and structure of the first nation government, including the powers and authorities to be exercised by the first nation government, as well as the proposed privileges and immunities of the first nation government; provided that the council shall consider and engage discussion on the creation of a for-profit Native Hawaiian corporation that shall be a body corporate and a public instrumentality of the first nation government and that may serve as a vehicle to receive settlement funds as in the case of the Alaska Native Claims Settlement Act or to acquire, perpetually manage, and hold settlement funds as in the case of the Narragansett Indian Land Management Corporation;

(3) The proposed civil rights and protection of the rights of the citizens of the first nation government and all persons affected by the exercise of governmental powers and authorities of the first nation government;

(4) The protection and preservation of the rights vested on the effective date of this Act of those Native Hawaiians who are eligible to reside on the Hawaiian home lands under the authority of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42); and

(5) Other issues determined appropriate by the council.

(e) Based on the referendum, the council shall develop proposed organic governing documents for the first nation government and may seek technical assistance from the governor on the draft organic governing documents to ensure that the draft organic governing documents comply with this Act.

(f) The council shall publish to all qualified Native Hawaiian constituents listed on the roll published under section    ‑5 notice of the availability of a:

(1) Copy of the proposed organic governing documents, as drafted by the council; and

(2) Brief impartial description of the proposed organic governing documents.

(g) No sooner than one hundred eighty days after the proposed organic governing documents are drafted and distributed, the council, with the assistance of the governor, shall hold elections for the purpose of ratifying the proposed organic governing documents; provided that the election shall be held no less than sixty days after the published notice of an election.

(h) Upon certification of the organic governing documents by the governor in accordance with subsection (j), the council, with the assistance of the governor, shall hold elections of the officers of the first nation government pursuant to subsection (n).

(i) Following the reorganization of the first nation government and the adoption of organic governing documents, the council shall submit the organic governing documents of the first nation government to the governor.

(j) The governor shall certify or decline to certify that the organic governing documents:

(1) Establish the criteria for membership in the first nation government and provide that membership is voluntary and can be relinquished;

(2) Were adopted by a majority vote of those qualified Native Hawaiian constituents whose names are listed on the roll published by the commission and who voted in the election;

(3) Provide authority for the first nation government to negotiate with federal, state, and local governments, and other entities;

(4) Provide for the exercise of inherent and other appropriate governmental authorities by the first nation government;

(5) Prevent the sale, disposition, lease, or encumbrance of lands, interests in lands, or other assets of the first nation government without the consent of the first nation government;

(6) Provide for the protection of the civil rights of the citizens of the first nation government and all persons affected by the exercise of governmental powers and authorities by the first nation government;

(7) Provide for the protection and preservation of the rights vested on the effective date of this Act of those Native Hawaiians who are eligible to reside on the Hawaiian home lands under the authority of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42); and

(8) Are consistent with this Act.

(k) If the governor determines that the organic governing documents, or any part of the documents, do not meet all of the requirements set forth in this section, the governor shall resubmit the organic governing documents to the council, along with a justification for each of the governor's findings as to why the provisions are not in full compliance.

(l) If the organic governing documents are resubmitted to the council by the governor under subsection (k), the council shall:

(1) Amend the organic governing documents to ensure that the documents meet all the requirements set forth in this section; and

(2) Resubmit the amended organic governing documents to the governor for certification in accordance with this section.

(m) The certifications under this section shall be deemed to have been made if the governor has not acted within ninety days after the date on which the council has submitted the organic governing documents of the first nation government to the governor.

(n) Upon completion of the certifications by the governor, the council, with the assistance of the governor, shall hold elections of the officers of the first nation government.

(o) The council shall provide a copy of the roll of qualified Native Hawaiian constituents to the governing body of the first nation government.

(p) The council shall cease to exist and shall have no power or authority under this Act after the officers of the governing body who are elected as provided in subsection (n) are installed.

(q) Notwithstanding any other provision of law to the contrary, the special political and legal relationship between the State of Hawaii and the Native Hawaiian people is hereby reaffirmed and the State of Hawaii extends recognition to the first nation government as the representative sovereign governing body of the Native Hawaiian people after the:

(1) Approval of the organic governing documents by the governor under this section; and

(2) Officers of the first nation government elected under subsection (n) have been installed.

   -7 No diminishment of rights or privileges. Nothing contained in this chapter shall diminish, alter, or amend any existing rights or privileges enjoyed by the Native Hawaiian people that are not inconsistent with the provisions of this chapter.

   -8 Reaffirmation of delegation of federal authority; governmental authority and power; negotiations. (a) 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. 4), is reaffirmed.

(b) Consistent with the policies of the State of Hawaii, upon the reaffirmation of the special political and legal relationship between the State of Hawaii and the first nation government, the first nation government shall be vested with the inherent powers and privileges of self-government of a native government, except as set forth in this Act. These powers and privileges may be modified by agreement between the first nation government, and the State of Hawaii pursuant to the negotiations authorized in subsection (c).

(c) Upon the reaffirmation of the special political and legal relationship between the State of Hawaii and the first nation government, the State of Hawaii shall enter into negotiations with the Native Hawaiian governing entity regarding the transfer of lands, natural resources, and other assets dedicated to Native Hawaiian use under existing law as in effect on the effective date of this Act to the first nation government. Negotiations may also address other Native Hawaiian claims, any residual responsibilities of the State of Hawaii, and grievances regarding assertions of historical wrongs committed against Native Hawaiians by the State of Hawaii.

   -9 Disclaimer. Nothing in this chapter is intended to serve as a settlement of any claims against the State of Hawaii, or affect the rights of the Native Hawaiian people under state, federal, or international law.

   -10 Rules. The governor shall adopt rules in accordance with chapter 91 to carry out the provisions of this chapter."

SECTION 3. The sum of $           or so much thereof as may be necessary for fiscal year 2011-2012 and the same sum or so much thereof as may be necessary for fiscal year 2012-2013 shall be expended by the office of Hawaiian affairs for the purposes of this Act; provided that no additional funds shall be appropriated for the purposes of this Act.

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. This Act shall take effect upon its approval; provided that the sum appropriated in section 3 of this Act shall take effect on July 1, 2011.

 



 

Report Title:

Government; First Nation; Appropriation

 

Description:

Establishes a nine-member commission to prepare, maintain, and certify a roll of qualified Native Hawaiian constituents; establishes requirements and procedures for preparation of the roll; establishes a process of recognition and ratification of governing documents and an interim first nation governing council; authorizes adoption of rules; appropriates unspecified funds for expenditure by the office of Hawaiian affairs. (SD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.