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GENERAL MEMORANDUM 11-061

GENERAL MEMORANDUM 11-061
Native Hawaiian Government Reorganization Bill Introduced in House, Advances in Senate

On April 7, 2011, the Senate Committee on Indian Affairs voted to favorably report without amendment, the Native Hawaiian Government Reorganization Act of 2011 (S 675) sponsored by Senator Daniel Akaka (D-HI), Chairman of the Committee. Cosponsors include Senators Inouye (D-HI), Murkowski (R-AK) and Begich (D-AK). Companion legislation HR 1250, was introduced by Representative Mazie Hirono (D-HI) and referred to the House Committee on Natural Resources. The legislation has 51 co-sponsors.

As with previous incarnations of this legislation, the bill would authorize Native Hawaiians to form a sovereign government and would place that government on a similar footing to that enjoyed by American Indian and Alaska Native tribes. This is the final Senate term for Senator Akaka – he announced that he will retire at the end of next year – and he has sponsored this legislation repeatedly since 2000. Therefore, this Congress marks his last opportunity, as sponsor, to see his bill enacted into law.

In the last (111th) Congress, the chances for passage of the legislation looked good, but after the House approved several controversial amendments, the bill languished in the Senate as a result of new opposition from Hawaii’s then-Governor Linda Lingle. By the time a compromise agreement was reached in July 2010, the clock had effectively run out for passage of the bill. Senator Akaka introduced a final version of his bill (S 3945) in the 111th Congress after the November 2010 elections, with the knowledge that the latest version would not come up for a Senate vote.

If enacted, the bill would: establish the Office for Native Hawaiian Relations within the Office of the Secretary of the Interior and establish the Native Hawaiian Interagency Coordinating Group composed of officials (designated by the President) of federal agencies "whose actions may significantly or uniquely impact Native Hawaiian programs, resources, rights or lands." The Native Hawaiian Interagency Coordinating Group would be charged with consulting with and coordinating federal policies and programs for the to-be-formed Native Hawaiian governing entity. The lead agencies would be the Department of Interior and the White House Office of Intergovernmental Affairs.

The bill would recognize the right of the qualified Native Hawaiian constituents to reorganize a single Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents.

The bill would establish a nine member Commission (appointed by the Secretary of Interior) to: prepare and maintain a roll of such constituents; certify that individuals on the roll meet the definition of qualified Native Hawaiian; and hold meetings with such constituents for the purpose of determining the structure of the Native Hawaiian Interim Governing Council and to elect Council members.

The Native Hawaiian Interim Governing Council would then be charged with drafting organic governing documents of the Native Hawaiian governing entity, holding elections to ratify the documents and submitting them to the Secretary of Interior for approval.

The bill would reaffirm the special political and legal relationship between the United States and Native Hawaiian people upon the Secretary's approval of the organic governing documents and the installation of officers elected to the Native Hawaiian governing entity. It would extend federal recognition to the governing entity as the representative sovereign governing body of the Native Hawaiian people and would authorize the United States, upon the reaffirmation of such political and legal relationship, together with the state of Hawaii, to enter into negotiations with the Native Hawaiian governing entity for an agreement addressing matters that include: land, natural resources, and asset transfers; governing powers and responsibilities including civil and criminal jurisdiction; and historical grievances.

Notably, the bill specifies that the Native Hawaiian governing entity (and Interim Governing Council prior to adoption of the organic governing documents) would be an Indian tribe under sections 201-203 of the Indian Civil Rights Act of 1968 (25 U.S.C. 1301-1303). However, nothing in the bill would extend eligibility for any Indian program or service to the Native Hawaiian governing entity or its members unless a statute covering the program or service is expressly amended to do so.

Additionally, the bill would prohibit Native Hawaiians or their governing entity from conducting gaming activities as a matter of claimed inherent authority or under the authority of federal law.

The above provisions are similar to those in the version Senator Akaka introduced late in the 111th Congress but with three key changes:

  • The pending bill eliminates the provision that membership in the new Native Hawaiian governing entity is voluntary and can be relinquished.
  • The pending bill clarifies that unless there is a negotiated agreement, nothing in the Act would preempt existing federal or state authority over Native Hawaiians or allow the state to regulate or tax the new Native Hawaiian governing entity.
  • The pending bill eliminates a number of interim restrictions on Native Hawaiian sovereignty while state, federal, and Native Hawaiian negotiations are underway. Those restrictions would have prevented the following:
    • the recognition of Indian Country status
    • the taking of land into trust
    • the new Hawaiian governing entity from exercising powers over non-non-Native Hawaiians
    • certain exemptions from federal and state civil and criminal laws
    • certain exemptions from the authority of the state
    • the new Hawaiian governing entity from asserting sovereign Immunity against the state

Another development in favor of the bill’s passage was the election of former Representative Neil Abercrombie to the Governorship of Hawaii in 2010. Mr. Abercrombie was the bill’s primary sponsor in the U.S. House and is not expected to raise the objections that his predecessor, Governor Linda Lingle, did while in office.

Please let us know if we may provide additional information regarding the Native Hawaiian Government Reorganization Act of 2011.

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Inquiries may be directed to:
Moriah O'Brien (mobrien@hobbsstraus.com)
Chris Stearns (cstearns@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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