H.R. 2314: Native Hawaiian Government Reorganization Act of 2009

H.R. 2314

Native Hawaiian Government Reorganization Act of 2009

Date
February 23, 2010 (111th Congress, 1st Session)

Staff Contact
Sarah Makin

Floor Situation

The House is scheduled to consider H.R. 2314 on Tuesday, February 23, 2010, under a structured rule that makes in order an amendment in the nature of a substitute, debatable for 30 minutes, and two Republican amendments debatable for 10 minutes each.  The rule also provides for one motion to recommit with or without instructions. 

H.R. 2314 was introduced on May 7, 2009, by Rep. Neil Abercrombie (D-HI) and referred to the Committee on Natural Resources, which held a mark-up and reported the bill by a vote of 26-13 on December 16, 2009.

Bill Summary

EXECUTIVE SUMMARY

H.R. 2314 would recognize and authorize the creation of a sovereign Native Hawaiian governing entity-an Indian tribe.  In order to do that, the bill would establish a process for organizing the Native Hawaiian people into an entity that knows who its members are, possesses authority over its members, adopts governing documents, etc.  Such a tribe would likely have as many as 400,000 members nationwide, including more than 20 percent of Hawaii's residents, and potential authority over Native Hawaiians in all of the fifty states.  If each Native Hawaiian eligible under this legislation were to apply to become a member of the new governing entity, it would be one of the nation's largest Indian tribes.  This bill would confer upon them racially exclusive benefits, discriminating against Hawaiian residents of other races as well as bestow the Native Hawaiian tribe with inherent governing powers possessed by other recognized tribes, effectively preempting State civil and tax authority without the State's consent. 

SUMMARY

**It is important to note that H.R. 2314 is not identical to H.R. 505, which the House considered in the 109th Congress.  H.R. 2314 includes numerous changes to H.R. 505 and contains additional concerns.**

Native Hawaiian Definition:  The bill defines a Native Hawaiian as an "individual who is one of the indigenous, native people of Hawaii and who is a direct lineal descendent of the aboriginal, indigenous, native people who resided in the islands that now comprise the State of Hawaii on or before January 1, 1893...or 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...or a direct lineal descendent of that individual."  However, H.R. 2314 only defines "aboriginal, indigenous, and native people" as the original inhabitants who exercised sovereignty. 

H.R. 2314 reaffirms that it is the policy of the U.S. that, "Native Hawaiians are a unique and distinct, indigenous, native people with whom the U.S. has a special political and legal relationship," and cites the authority to enact legislation regarding Native Hawaiians in the Indian Commerce Clause of the Constitution.  The bill refers to previous legislation that has used this Constitutional authority.  H.R. 2314 asserts that, "Native Hawaiians have an inherent right to autonomy in their internal affairs; an inherent right of self-determination and self-governance; the right to reorganize a Native Hawaiian governing entity; and the right to become economically self-sufficient; and the United States shall continue to engage in a process of reconciliation and political relations with the Native Hawaiian people."  Furthermore, the legislation specifies that the purpose of the bill "is to provide a process for the reorganization of the single Native Hawaiian governing entity and the reaffirmation of the special political and legal relationship between the United States and that Native Hawaiian governing entity for purposes of continuing a government-to-government relationship." 

Native Hawaiian Relations Office and Interagency Coordinating Group:  H.R. 2314 establishes a Native Hawaiian Relations office at the Department of the Interior-as well as a Native Hawaiian Interagency Coordinating Group (ICG)-to "continue the process of reconciliation with the Native Hawaiian people in furtherance of the Apology Resolution"; to coordinate the political and legal relationship between the Native Hawaiian governing entity and the U.S.; to integrate consultation with the Native Hawaiian governing entity; to consult with the ICG, other federal agencies, and the State of Hawaii on anything affecting Native Hawaiian resources, rights and lands; and to prepare and submit to the Committee on Indian Affairs and the Committee on Energy and Natural Resources an annual report detailing the activities of the ICG and any recommended changes to federal law or regulations affecting Native Hawaiians.  Since many programs administered to Native Hawaiians are outside the purview of the Department of the Interior, the ICG would be responsible for coordinating federal programs and policies that affect Native Hawaiians and work with the Native Hawaiian governing entity. 

Reorganization Process:  H.R. 2314 formally recognizes a Native Hawaiian governing entity with the right to "reorganize the single Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents."  In order to do this, the bill authorizes a nine member Commission to prepare and maintain a roll of the Native Hawaiian community and certify that the adult members of the community meet the definition of "Native Hawaiian" set forward by the bill. 

The bill requires that the roll contain 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 requires that each individual submit to the Committee documentation to determine their eligibility (acceptable documentation would be determined by the Committee).  Once completed, the Commission would be required to submit the roll to the Department of the Interior, publish it in the Federal Register, and certify that each member meets the bill's definition of a Native Hawaiian.  The roll would determine the criteria for candidates to be elected to serve on the Native Hawaiian Governing Council, as well as determine the structure of the Council, and elect officers.  The Council would receive both federal and State funding to establish the governing entity. 

H.R. 2314 gives the Council the authority to conduct a referendum among the adult members of the community to determine the proposed elements of the governing documents, including the proposed criteria for citizenship, the proposed powers and authorities of the governing entity, and the proposed civil rights and protection of the rights of the citizens of the governing entity.  The bill lays out how the Council will go about developing governing documents, to whom they must be submitted, and how to certify the documents.  Once the documents are certified by the Secretary of the Interior, elections may be held to elect the officers of the Native Hawaiian government. 

Intergovernmental Negotiations:  The bill allows for negotiations between the "three governments," the U.S., the State of Hawaii, and the new Native Hawaiian governing entity on the following matters:

1)       the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources;

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

3)       the exercise of civil and criminal jurisdiction;

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

5)       any residual responsibilities of the United States and the State of Hawaii; and

6)       grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii.

H.R. 2314 also includes the following governmental authority: "Any governmental authority or power to be exercised by the Native Hawaiian governing entity which is currently exercised by the State or Federal Governments shall be exercised by the Native Hawaiian governing entity only as agreed to in negotiations pursuant to...this Act and beginning on the date on which legislation to implement such agreement has been enacted by the United States Congress, when applicable, and by the State of Hawaii, when applicable."

H.R. 2314 authorizes "such sums as necessary."

The Akaka Substitute-Important Changes Made to Underlying Bill

During the Committee markup of H.R. 2314, Rep. Abercrombie (D-HI) filed an amendment in the nature of a substitute that was informally called the "Akaka Substitute."  The substitute was drafted by Sen. Akaka, Hawaiian advocates, and the Obama Administration; Hawaii's Governor and Attorney General were excluded from participating.  The Akaka Substitute-to be offered by Rep. Abercrombie (D-HI)-was made in order by the House Rules Committee.

As introduced, H.R. 2314 provides that matters such as transferring lands and preempting federal and State civil, criminal, and tax jurisdiction, must be subject to negotiation with, and the concurrence of, the State of Hawaii and the U.S. Congress.  The Akaka Substitute would short-circuit this public process by immediately endowing the Hawaiian tribe with the inherent governing powers possessed by other recognized tribes, and preempting State civil and tax authority without the State's consent. 

In response to threats of the Akaka Substitute in Committee, the Governor and Attorney General of Hawaii submitted a letter strongly opposing the Akaka Substitute because it would "completely change the nature of the Native Hawaiian governing entity."  According to the letter sent on December 15, 2009, to Chairman Rahall and Ranking member Hastings,

These changes, taken together, change the bill from one where the status quo and the relations between the United States, the State of Hawaii, and the Native Hawaiian governing entity can be changed only after negotiations and after passage of implementing legislation, to a model in which the status quo immediately changes, pursuant to an Indian law model. 

The substitute also includes six pages of new, complex membership criteria for individuals seeking recognition as a Native Hawaiian.  These criteria could open enrollment to non-residents with only the most tenuous of connections to a distinct, Native Hawaiian community.  However, once recognition is extended to the entity, the entity is permitted to grant, deny, or revoke membership according to any criteria it wishes.

The substitute also includes new, undefined sovereign powers.  The substitute immediately grants the native entity with immunity from lawsuit, and it preempts State regulation, taxation, and civil and possibly criminal jurisdiction for undefined "government activities" conducted by the entity.  This departs from the premise of the bill as introduced, which attempted to reverse decisions on what powers to grant the entity only after negotiation and consent of the State and Congress. 

Both the underlying bill and the substitute contain a gaming prohibition on Native Hawaiian lands.  However, due to a provision included in the substitute that shields the governing entity from State regulation, the State might not be able to enforce the gaming prohibition.  If the State cannot enforce the prohibition, enforcement would then be up to the federal government, which has a mixed record of enforcing the Indian Gaming Regulatory Act.

Background

There are more than 150 current statutes that confer federal benefits to the Native Hawaiian people.  However, in 2000, the Supreme Court put many of these benefits in jeopardy with its decision in Rice v. Cayetano.  The Court's decision in Rice led many to conclude that federal benefits flowing to Native Hawaiians are a racial set-aside.  As a result, the Hawaiian Congressional delegation has championed legislation to provide a process for the United States to recognize Native Hawaiians as a governing entity, i.e. a tribe that is political in nature and not a racial group.  But instead of recognizing a currently-existing political entity that has authority over its members, H.R. 2314 must create one from scratch.  Specifically, the following are some concerns that many Members have expressed with the legislation:

UnconstitutionalCongress lacks the power to create Indian tribes, and the Supreme Court has held that Congress' power with regard to indigenous peoples is not unlimited.  In U.S. v. Sandoval, the Court stated that:  "It is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe."  In other words, the Court held that the Congress cannot create an Indian tribe where one does not exist, but can rather, only recognize groups who have long operated as a tribe with a preexisting political structure and who live separately and distinctly from other communities (both geographically and culturally).  The history and political relations between Native Hawaiians and the U.S. demonstrates that Native Hawaiians are not an existing Indian tribe. 

Racial Group, Not a TribeNative Hawaiians are by the Court's definition not an Indian tribe but a racial group as stated in Montoya v United States:  "By a ‘tribe' we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory"  (emphasis added).

According to Congressional testimony provided by the U.S. Commission on Civil Rights Commissioner Gail Heriot, the very act of transforming Native Hawaiians into a tribe is "an act performed on a racial group, not a tribal group."  This bill would confer upon them racially exclusive benefits, discriminating against Hawaiian residents of other races.  Furthermore, this bill would preserve the State of Hawaii's current practice of conferring special benefits exclusively on its Native Hawaiian citizens.  In a letter to House leaders, the U.S. Commission on Civil Rights writes:

We do not believe Congress has the constitutional authority to "reorganize" racial or ethnic groups into dependent sovereign nations unless those groups have a long and continuous history of separate self-governance.  Moreover, quite apart from the issue of constitutional authority, creating such an entity sets a harmful precedent.  Ethnic Hawaiians will surely not be the only group to demand such treatment.

The Commission opposes passage of the Native Hawaiian Government Reorganization Act "or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American People into discrete subgroups accorded varying degrees of privilege."  A follow-up letter opposing the House vote on H.R. 2314 was also received on February 22, 2010. 

Racial BalkanizationH.R. 2314 could lead to a racial balkanization in Hawaii and elsewhere, providing for different codes of law to apply to people of different races who live and function as part of one currently homogenous community.  Tribal Indians are typically located on reservations and immune from State laws, but this would not be the case should Native Hawaiians be granted the status of "tribe."  In general, tribes do not pay State taxes nor do they abide by State regulations.  With this in mind, consider for example, two small businesses in Hawaii competing against one another.  One is owned by a Native Hawaiian, and the other is owned by someone who is not.  The former would be exempt from State taxes, State business regulations, and zoning and environmental laws, and the latter would not. 

Lack of ReferendumNothing in H.R. 2314 provides current Hawaiians with any choice in the matter of whether or not there is a new governmental entity-which would no doubt affect them-created in their community.  In addition, Zogby conducted a poll of registered Hawaii voters in 2009 which asked the following question:

The Native Hawaiian Reorganization Act of 2009, or the Akaka Bill, would recognize native Hawaiians as a tribe similar to the laws affecting American Indian tribes.  To be included under the new Hawaiian government, residents would have to be able to show proof of native Hawaiian blood in their ancestry.  Knowing what you know now, do you support or oppose the Native Hawaiian Reorganization Act of 2009, or the Akaka Bill?

Only 34 percent of respondents said yes-51 percent said no.  In addition, 58 percent of those surveyed supported the idea of a referendum before the provisions of H.R. 2314 became law.  No such referendum is provided for in H.R. 2314.

Independence and SecessionIn the process of clarifying statements he made earlier to an NPR reporter, the Senate companion's sponsor, Daniel Akaka, admitted that this bill could lead to independence:

I've spoken to those in Hawaii who want to have the-Hawaii to be independent and I've told them, hey, you can use the governing entity to discuss it. And this is what I meant. They can bring these to the governing entity and the governing entity will make a decision as to what happens to, uh, to independence or returning to the monarchy.

The State of Hawaii's Office of Hawaiian Affairs until recently posted a document which fueled speculation that H.R. 2314 may lead to secession and further independence efforts: 

While the federal recognition bill authorizes the formation of a Native Hawaiian governing entity, the bill itself does not prescribe the form of government this entity will become. S.344 creates the process for the establishment of the Native Hawaiian governing entity and a process for federal recognition. The Native Hawaiian people may exercise their right to self-determination by selecting another form of government including free association or total independence. (emphasis added)

Cost

According to CBO, implementing H.R. 2314 would cost about $1 million annually in fiscal years 2010-2012 and less than $500,000 in each subsequent year, assuming the availability of appropriated funds.  Enacting the bill would not affect direct spending or revenues.

Amendments

1. Rep. Abercrombie (D-HI)-Amendment in the Nature of a Substitute:  The substitute amendment leaves several key terms undefined, including "Native Hawaiian," "Native Hawaiian community" and "citizens" of the governing entity.  This creates unnecessary ambiguity that will likely result in increased litigation.  The substitute amendment would immediately grant the native governing entity "inherent powers" preempting State regulation, taxation, and civil and possibly criminal jurisdiction for undefined "government activities" conducted by the entity.  In the underlying bill, decisions regarding the powers of the governing entity were only made after negotiation and consent from the State of Hawaii and the U.S. Congress.  The amendment would also give the governing entity immunity from lawsuits in any federal or State court. 

The amendment includes a long list of new membership criteria that could open enrollment to non-Hawaii residents with very little, if any, connection to the Native Hawaiian community.  The amendment would allow the entity to discard established criteria and grant, deny, or revoke membership according to their desire.  Furthermore, membership in the governing entity would remain voluntary and renounceable.

The substitute requires the U.S. Attorney General to designate a Justice Department attorney to assist and protect the entity and to fight legal challenges-granting resources of the federal government to an entity which has its own inherent powers.  Since a challenge against the constitutionality of this bill is inevitable, this provision could cloud the objectivity of the Justice Department.  This is also inappropriate since Department of Justice attorneys are already known to have concerns with the constitutionality of this bill.  

The substitute establishes the White House as a lead agency to implement this act.  (Sec. 6 (c)(1)).  Members may be concerned with making the White House the lead agency to coordinate activities and policies concerning the creation of the governing entity. 

Hawaii Governor Linda Lingle, a longtime and vocal advocate of Native Hawaii recognition, has announced her opposition to the final rewritten version of the bill.

2.  Rep. Hastings (R-WA):  The amendment requires that the voters of Hawaii approve the governing documents for the Native Hawaiian governing entity before federal recognition becomes operative.  This would make the entity subject to the approval of voters of Hawaii.

3.  Rep. Flake (R-AZ):  The amendment states that nothing in this Act shall relieve a Native Hawaiian governing authority, from complying with the equal protection clause of the 14th amendment to the United States Constitution.