TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO STATE RECOGNITION OF THE NATIVE HAWAIIAN PEOPLE, THEIR LANDS, ENTITLEMENTS, HEALTH, EDUCATION, WELFARE, HERITAGE, AND CULTURE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the State has never explicitly acknowledged that Native Hawaiians are the only indigenous, aboriginal, "maoli" Hawaiian population.
Native Hawaiians are the indigenous, native people of the Hawaiian archipelago that is now part of the United States and the State of Hawaii and are a distinctly native community. From its inception, the State has had a special political and legal relationship with the Native Hawaiian people, and has continually enacted legislation for the betterment of their conditions.
In Section 5(f) of the 1959 Admission Act (An Act to Provide for the Admission of the State of Hawaii into the Union, Public Law 86-3), Congress created what is commonly known as the ceded lands trust. The ceded lands trust, consisting of lands, including submerged lands, natural resources, and the proceeds from the disposition or use of those lands, is for five purposes, one of which remains the betterment of the conditions of Native Hawaiians.
At the 1978 Constitutional Convention, the State established the office of Hawaiian affairs, approved by the voters on November 7, 1978 (Hawaii State Constitution, Article XII, sections 5 and 6) and codified as Chapter 10, Hawaii Revised Statutes. The State's designation of the office of Hawaiian affairs as a trust vehicle to act on behalf of Native Hawaiians until a Native Hawaiian governing entity could be reestablished reaffirmed the State's obligations to the Native Hawaiian people.
The 1978 Constitutional Convention further amended the State Constitution to affirm its 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." (Hawaii State Constitution, Article XII, section 7). Moreover, the Hawaii Revised Statutes also specifically protect Native Hawaiians' ability to practice their traditional and customary rights. (Hawaii Revised Statutes, §§ 1-1, 7-1). The federal and state courts have continuously recognized the right of the Native Hawaiian people to engage in customary and traditional practices on public lands.
In 1993, the United States formally apologized to Native Hawaiians for the United States' role in the overthrow of the Kingdom of Hawaii. (Public Law 103-150 (107 Stat. 1510) commonly known as the "Apology Resolution"). The Apology Resolution acknowledges that the illegal 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. 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. 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. To further this process of reconciliation, Congress created the Office of Native Hawaiian Relations in the Department of the Interior, with one of its purposes being to consult with Native Hawaiians on the reconciliation process.
In December 2010, the United States Justice and Interior Departments reaffirmed the United States support for the Native Hawaiian Government Reorganization Act. This reaffirmation recognized that Native Hawaiians are the only one of the Nation's three major indigenous groups that currently lack a government-to-government relationship with the United States.
Also in December 2010, the United States endorsed the United Nations Declaration on the Rights of Indigenous Peoples. The United States endorsement of the Declaration included recognition of its support not only for the Native Hawaiian Government Reorganization Act but also many additional statutes for Native Hawaiians such as the National Historic Preservation Act, the Native Hawaiian Education Act, the Native American Housing Assistance and Self-Determination Act, and the Native American Graves Protection and Repatriation Act.
While the Native Hawaiian community is still in the process of reorganizing a governmental structure, 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.
The State of Hawaii has supported the reorganization of a Native Hawaiian governing entity, as evidenced by two resolutions adopted by the Hawaii State Legislature in the 2000 and 2001 sessions of the legislature and subsequently by the governor's testimony in Congress and other statements of support. Recognizing the likelihood of a reorganized Native Hawaiian governing entity, the State of Hawaii has also provided for the transfer of the management and control of the island of Kahoolawe and its waters to the sovereign Native Hawaiian entity.
The purpose of this bill is to recognize Native Hawaiians as the only indigenous, aboriginal, "maoli" population of Hawaii. It is also the State's desire to recognize a soon to be reorganized Native Hawaiian Governing Entity and to promote the ultimate federal recognition of Native Hawaiians. The legislature urges the office of Hawaiian affairs to facilitate the organization process of that entity.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
NATIVE HAWAIIAN RECOGNITION
§ -1 Statement of Recognition. The Native Hawaiian people are hereby recognized as the only indigenous, aboriginal, maoli people of Hawaii.
§ -2 Purpose. The purpose of this chapter is to provide for and to implement the recognition of the Native Hawaiian people by means and methods that will facilitate their self governance, including the establishment of or the amendment to programs, entities, and other matters pursuant to law that relate, or affect ownership, possession, or use of lands by the Native Hawaiian people, and by further promoting their entitlements, health, education, welfare, heritage and culture.
§ -3 Native Hawaiian Roll Commission. (a) There is established a nine-member Native Hawaiian roll commission for the purpose of:
(1) Preparing and maintaining a roll of qualified Native Hawaiians; and
(2) Certifying that the individuals on the roll of qualified Native Hawaiians meet the definition of qualified Native Hawaiians. For purposes of establishing the roll, a "qualified Native Hawaiian" means an individual who the commission determines has satisfied the following criteria and who makes a written statement certifying that the individual who:
(i) 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 resided in the islands that now comprise the State of Hawaii on or before January 1, 1893, and occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii; or
(ii) 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;
(B) Wishes to participate in the organization of the Native Hawaii governing entity; and
(C) Is eighteen years of age or older.
(b) No later than one hundred eighty days after the effective date of this Act, the governor, the president of the senate, and the speaker of the house of representatives shall each appoint three members of the commission to develop the roll of qualified Native Hawaiians.
(c) A vacancy on the commission shall not affect the powers of the commission, and shall be filled in the same manner as the original appointment.
(d) 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.
(e) The commission, without regard to chapter 76, may appoint and terminate an executive director and other additional personnel as are necessary to enable the commission to perform the duties of the commission.
(f) The commission may fix the compensation of the executive director and other commission personnel.
(g) The commission may procure temporary and intermittent services.
§ -4 Notice of qualified Native Hawaiian roll. (a) The commission shall publish notice of the certification of the qualified Native Hawaiian roll, update the roll as necessary, and publish notice of the updated roll of qualified Native Hawaiians.
(b) The publication of the initial and updated roll shall serve as the basis for the eligibility of qualified Native Hawaiians whose names are listed on the rolls to participate in the organization of the Native Hawaiian governing entity.
§ -5 Interim Council. (a) After the publication of the roll of qualified Native Hawaiians, the commission shall appoint an interim council of nine members from the roll of qualified Native Hawaiians to independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose or organizing themselves.
(b) The commission may appoint as members of the interim council members of Native Hawaiian organizations that were established in April 1865 or December 1918 and are currently active as a Native Hawaiian organization.
§ -6 Dissolution of the Native Hawaiian roll commission. The governor shall dissolve the Native Hawaiian roll commission after the interim council is appointed, and notice to the governor by the interim council that it has organized and ready to commence the organization of a convention of qualified Native Hawaiians.
§ -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, the inherent powers and privileges of self-government of the members of the qualified Native Hawaiian roll, as certified by the Native Hawaiian roll commission, shall be acknowledged by the State of Hawaii. These powers and privileges may be modified by agreement with 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."
SECTION 3. The Hawaiian Homes Commission Act, 1920, shall be amended, subject to approval by the United States Congress, if necessary, to accomplish the purposes set forth in this Act in a manner that is expeditious, timely, and consistent with the current needs and requirements of the Native Hawaiian people and the current beneficiaries of the Hawaiian Homes Commission Act, 1920.
SECTION 4. 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 for the purposes of this Act; provided that no additional funds shall be appropriated for the purposes of this Act.
The sums appropriated shall be expended by the office of Hawaiian affairs.
SECTION 5. 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 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 7. This Act shall take effect upon approval.
Native Hawaiians; Appropriation
Establishes a nine-member Native Hawaiian roll commission to prepare and maintain a roll of qualified Native Hawaiians; requires the commission, after publication of the roll, to appoint an interim council of nine members from the roll to commence the organization of a convention of qualified Native Hawaiians; requires the governor to dissolve the commission after the interim council is appointed; appropriates unspecified funds. (SD1)
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