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THE SENATE
TWENTY -SIXTH LEGISLATURE, 2011
STATE OF HAWAII
S.B. NO.
1520
S.D. 2
H.D. 3
C.D. 1
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 the State has never
explicitly acknowledged that Native Hawaiians are the only
indigenous, aboriginal, maoli population of Hawaii.
Native Hawaiians are the indigenous, native people of the
Hawaiian archipelago 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 condition.
In section 5(f) of the Admission Act of 1959, 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 - purportedly ceded to the United States by the Republic of
Hawaii - is for five purposes, one of which remains the betterment of
the conditions of native Hawaiians.
At the 1978 Constitutional Convention, the delegates proposed a
constitutional amendment to establish the office of Hawaiian
affairs. The amendment was ratified by the voters on November 7,
1978, and codified as article XII, sections 5 and 6 of the Hawaii
State Constitution, and in chapter 10,.Hawaii Revised Statutes. The
Comm. No._
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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.
Delegates to the 1978 Constitutional Convention further proposed
to amend the Hawaii State Constitution to affirm protection of all
"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 . . ." Moreover, state law also specifically
protects Hawaiians' ability to practice their traditional and
customary rights. 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
Hawaiian Kingdom through Public Law 103 -150 (107 Stat. 1510),
commonly known as the "Apology Resolution ". The Apology Resolution
acknowledges that the illegal overthrow of the Hawaiian Kingdom
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 a Treaty of Annexation 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 Hawaiian Kingdom and to support reconciliation
efforts between the United States and Native Hawaiians. Pursuant to
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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 within the Department
of the Interior, to consult with Native Hawaiians on the
reconciliation process.
In December 2010, the Departments of Justice and the Interior
reaffirmed the federal support for the Native Hawaiian Government
Reorganization Act of 2010. This reaffirmation recognized that
Native Hawaiians are the only one of the nation's three major
indigenous peoples who currently lack a formal government -to-
government relationship with the United States.
The United States became a charter member of the United Nations
in 1945. The United States submitted Hawaii as a territory of the
United States to be listed as a non - self - governing territory entitled
to self - government under Article 73, Charter of the United Nations,
via United Nations General Assembly Resolution 66 (1946), although it
was later de- listed at the time of statehood. Also in December 2010,
the United States endorsed the United Nations Declaration on the
Rights of Indigenous Peoples, which acknowledged, among other things:
ARTICLE 3
Indigenous peoples have the right to self - determination. By
virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural
development.
The United States' endorsement of the United Nations Declaration
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on the Rights of Indigenous Peoples included recognition of its
support not only for the Native Hawaiian Government Reorganization
Act of 2010 but also many additional laws 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.
Native Hawaiians have continued to maintain their separate
identity as a single, distinctly native political community through
cultural, social, and political institutions and have continued to
maintain their rights to self - determination, self - governance, and
economic self - sufficiency.
The State has supported the reorganization of a Native Hawaiian
governing entity. It has supported the Sovereignty Advisory Council,
the Hawaiian Sovereignty Advisory Commission, the Hawaiian
Sovereignty Elections Council, and Native Hawaiian Vote, and the
convening of the Aha Hawaii 'Oiwi (the Native Hawaiian Convention).
The legislature has adopted various resolutions during its regular
sessions throughout the 1990s and 2000s. The Governor has testified
before Congress regarding the State's support for Native Hawaiians as
the indigenous people of Hawaii with the right to self - government.
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 Kahoolawe and its waters to
the sovereign Native Hawaiian entity upon its recognition by the
United States and the State of Hawaii.
The purpose of this Act is to recognize Native Hawaiians as the
only indigenous, aboriginal, maoli population of Hawaii. It is also
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the State's desire to support the continuing development of a
reorganized Native Hawaiian governing entity and, ultimately, the
federal recognition of Native Hawaiians. The legislature urges the
office of Hawaiian affairs to continue to support the self -
determination process by Native Hawaiians in the formation of their
chosen governmental 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 five - member Native Hawaiian roll commission within the
office of Hawaiian affairs for administrative purposes only. The
Native Hawaiian roll commission shall be responsible for:
(1) Preparing and maintaining a roll of qualified Native
Hawaiians; and
(2) Certifying that the individuals on the roll of qualified
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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 shall appoint the members of the
Native Hawaiian roll commission from nominations submitted by
qualified Native Hawaiians and qualified Native Hawaiian membership
organizations. For the purposes of this subsection, a qualified
Native Hawaiian membership organization includes an organization
that, on the effective date of this Act, has been in existence for at
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least ten years, and whose purpose has been and is the betterment of
the conditions of the Native Hawaiian people.
In selecting the five members from nominations submitted by
qualified Native Hawaiians and qualified Native Hawaiian membership
organizations, the governor shall appoint the members as follows:
(1) One member shall reside in the county of Hawaii;
(2) One member shall reside in the city and county of Honolulu;
(3) One member shall reside in the county of Kauai;
(4) One member shall reside in the county of Maui; and
(5) One member shall serve at- large.
(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
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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
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members of the qualified Native Hawaiian roll, and their descendants,
shall be acknowledged by the State of Hawaii as the indigenous,
aboriginal, maoli population 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. Funding for the Native Hawaiian roll commission
shall be provided by the office of Hawaiian affairs.
SECTION 5. The Native Hawaiian roll commission, in cooperation
with the office of Hawaiian affairs, shall report to the governor and
the legislature no later than twenty days prior to the convening of
the regular session of 2012, on the status of the preparation of a
roll of qualified Native Hawaiians, expenditures related to the
responsibilities of the Native Hawaiian roll commission, and any
concerns or recommendations as deemed appropriate by the Native
Hawaiian roll commission.
SECTION 6. 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.
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SECTION 7. This Act does not affect rights and duties that
matured, penalties that were incurred, and proceedings that were
begun before its effective date.
SECTION 8. This Act shall take effect upon its approval.
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Report Title:
Native Hawaiians; Recognition; Native Hawaiian Roll Commission
Description:
Establishes a five - member Native Hawaiian roll commission in the
office of Hawaiian affairs for administrative purposes to prepare and
maintain a roll of qualified Native Hawaiians; requires the
commission to publish the roll to facilitate commencement of a
convention for the purpose of organization; requires the governor to
dissolve the commission after publication of the roll; requires the
office of Hawaiian affairs to fund expenses of the Native Hawaiian
roll commission; requires a report to the governor and legislature
prior to the regular session of 2012. (CD1)
The summary description of legislation appearing on this page is for informational purposes only and is not
legislation or evidence of legislative intent.
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