Bill Text: HI SB1 | 2011 | Regular Session | Amended

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Bill Title: Native Hawaiians; Qualified Native Hawaiian Roll; Appropriation

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Engrossed - Dead) 2011-04-05 - (H) The committee(s) recommends that the measure be deferred. [SB1 Detail]

Download: Hawaii-2011-SB1-Amended.html

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THE SENATE	S.B. NO.	1
TWENTY-SIXTH LEGISLATURE, 2011		S.D. 2
STATE OF HAWAII		H.D. 2

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 indigenous, aboriginal, maoli people of the State and are a distinct native community.  From its inception, the State has had a special political and legal relationship with the Native Hawaiian people, and has enacted legislation for the betterment of their condition.

     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 public lands trust, consisting of lands, including submerged lands, natural resources, and the proceeds from the disposition or use of those lands that were purportedly ceded to the United States by the Republic of Hawaii, has five purposes, one of which is the betterment of the conditions of native Hawaiians.

     At the 1978 Constitutional Convention, the State established the office of Hawaiian affairs, which was approved by the voters on November 7, 1978, and codified as article XII, sections 5 and 6 of the state constitution and in 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 and Hawaiians until a Hawaiian governing entity could be reestablished reaffirmed the State's obligations to the Native Hawaiians.

     The 1978 Constitutional Convention further amended the state constitution to protect all of the "rights, customarily and traditionally exercised for subsistence, cultural, and religious purposes and possessed by ahupua'a tenants who are descendants of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778."  See, Hawaii Constitution, article XII, section 7.  Moreover, state law also specifically protects Native Hawaiians' ability to practice their traditional and customary rights.  See, Hawaii Revised Statutes, sections 1-1 and 7-1.  The federal and state courts have recognized the right of Native Hawaiian people to engage in customary and traditional practices on public lands.

     In 1993, Congress formally apologized to Native Hawaiians for the United States' role in the overthrow of the Kingdom of Hawaii.  See, Public Law 103-150, 107 Stat. 1510, commonly known as the Apology Resolution.  The Apology Resolution acknowledged that the illegal overthrow of the Hawaiian Kingdom occurred with the active participation of agents and citizens of the United States, and further acknowledged that Native Hawaiians never directly relinquished their claims to their inherent sovereignty as a people, or to their national lands, neither through the Hawaiian Kingdom, nor through a plebiscite nor referendum.  The Apology Resolution expressed the commitment of Congress to acknowledge the ramifications of the United States' role against the Hawaiian Kingdom, and urged the President to support reconciliation efforts between the United States and Native Hawaiians.  Subsequently, the United States Departments of Justice and the Interior conducted reconciliation hearings with Native Hawaiians, and in 1999, issued a joint report entitled, From Mauka to Makai:  The River of Justice Must Flow Freely.  The report identified promoting the reorganization of a Native Hawaiian government as a priority recommendation for continuing the process of reconciliation.  To further reconciliation, Congress created the Office of Native Hawaiian Relations in the Department of the Interior, to consult with Native Hawaiians on the reconciliation process.

     In December 2010, the United States Departments of Justice and the Interior reaffirmed the United States' support for the Native Hawaiian Government Reorganization Act of 2010, commonly referred to as the Akaka bill.  This reaffirmation recognized that Native Hawaiians are the only one of the nation's three major indigenous groups who 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 of 2010, but also for many additional laws benefitting 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 government structure, Native Hawaiians have continued to maintain their separate identity as a single, distinctly native political community.  Through cultural, social, and political institutions, Native Hawaiians maintain their rights to self-determination, self-governance, and economic self-sufficiency.

     The State of Hawaii has supported the reorganization of a Native Hawaiian governing entity with the Sovereignty Advisory Council, the Hawaiian Sovereignty Advisory Commission, the Hawaiian Sovereignty Elections Council, and the Native Hawaiian Vote.  This led to the convening of the 'Aha Hawai'i 'Oiwi, the Native Hawaiian convention.  Two resolutions supporting a Native Hawaiian governing entity were adopted by the legislature in 2000 and 2001.  Recognizing the likelihood of a reorganized Native Hawaiian governing entity, the State has also provided for the transfer of the management and control of the island of Kaho'olawe and its waters to the sovereign Native Hawaiian entity.

     The purpose of this Act is to recognize Native Hawaiians as the indigenous, aboriginal, maoli population of Hawaii.  It is the State's desire to support the continuing development of a reorganized Native Hawaiian governing entity and to promote federal recognition of Native Hawaiians.  The legislature urges the office of Hawaiian affairs to support and facilitate the process by which Native Hawaiians form that governing entity.

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

"CHAPTER

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 culture, heritage, entitlements, health, education, and welfare.

     §   ‑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:

         (A)  Is:

              (i)  An individual who is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, 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, or a direct lineal descendant of that individual;

         (B)  Has maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian 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 Chapter, the governor, president of the senate, and 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 rolls 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  Native Hawaiian convention.  The publication of the roll of qualified Native Hawaiians, as provided in section    ‑4, is intended to facilitate the process under which qualified Native Hawaiians may independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose of organizing themselves.

     §   ‑6  Dissolution of the Native Hawaiian roll commission.  The governor shall dissolve the Native Hawaiian roll commission upon being informed by the Native Hawaiian roll commission that it has published notice of any updated roll of qualified Native Hawaiians, as provided in section    -4, and thereby completed its work.

     §   ‑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 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), 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 on January 7, 2059.

 

Report Title:

Native Hawaiians; Qualified Native Hawaiian Roll; Appropriation

 

Description:

Establishes a commission to prepare and maintain a roll of qualified Native Hawaiians; requires the commission to publish the roll for the purpose of organizing a convention of qualified Native Hawaiians; requires the governor to dissolve the commission after the commission publishes notice of the updated roll; appropriates unspecified funds.  Effective January 7, 2059.  (SB1 HD2)

 

 

 

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