INSTITUTE FOR THE ADVANCEMENT OF HAWAIIAN AFFAIRS 86-649 Puuhulu Road Wai`anae, Hawaii 96792-2723 Email: plaenui@hinc.hawaii.gov Tel: (808) 696-5157 Fax: (808) 696-7774 14 July 1994 HAWAIIAN INDIGENOUS RIGHTS, DECOLONIZATION & DEMOCRATIC IDEALS: A tough balancing act! For MULTI-CULTURALISM IN GLOBAL PERSPECTIVE PUBLIC LECTURE SERIES PROGRAM FOR CULTURAL STUDIES EAST-WEST CENTER Honolulu, Hawai`i by P_k_ Laenui ©1994, Laenui TABLE OF CONTENTS INTRODUCTION 3 HAWAIIAN INDIGENOUS RIGHTS 5 Specific native rights: 6 Pre-1893 6 1893 - 1959 7 Post-1959 7 General Law 8 United States Law 8 International Law 10 International Labor Organization 11 United Nations 11 Hawaiian views on developing laws 12 DECOLONIZATION 15 The case of Hawai`i 15 The case of Puerto Rico and the concept of fraud 19 General principle of self-determination as a continuing right 20 DEMOCRATIC IDEALS 21 CONCLUSION 24 HAWAIIAN INDIGENOUS RIGHTS, DECOLONIZATION & DEMOCRATIC IDEALS: A tough balancing act! INTRODUCTION An understanding of the present discussion on Hawaiian indigenous rights, decolonization and democratic ideals requires at the very least, a page or two of background in Hawai`i's past. So let's first establish a basic Hawaiian historical foundation. A Hawaiian nation existed in 1893 and long before. The foundation of that nation was the indigenous society preexisting European contact in 1778 by captain James Cook of the British Admiralty. That independent nation was invaded by the military forces of the United States of America in January, 1893. As a result of that invasion, a puppet government was established for the sole purpose of annexing Hawai`i to the United States. Within five years, that annexation was accomplished. Hawai`i became a non-self governing territory of the United States. The people of this Hawaiian nation were nearly exterminated, resocialized into U.S. citizens and marginalized from the political process. Their social structures were destroyed, their culture was suppressed, and their history was cut off and forced underground. They became almost invisible as a political unit in Hawai`i for almost a hundred years. Parallel to Hawai`i's social history is the international legal history of the development of rules of conduct among and by nations of the world. Treaties between nations were already common-place by the year 1893 such that the law of respect for treaties was well established within the international community. Already existing was the international customary law against aggression. Over the past hundred years, those laws have not waned in validity. Instead, we have seen the further development of the principles against unequal treaties, against aggression, against genocide and of decolonization. During this period of 101 years, the Hawai`i society was greatly impacted by the transmigration of people from the United States as well as other foreign countries. These settlers often melded into the society, intermarriages and inter-cultural mixtures being common place. Population increases, attributable not only to the local birth rate but to the transmigration as well, resulted in increased pressures upon the natural environment and economic conditions. Hawai`i's colonization also saw heavy militarization of these islands, a further breakdown of the native Hawaiian culture, and a limitation in foreign trade and relations options. In the recent quarter century, a tremendous climb in Hawaiian cultural and historical awareness, coupled with a growing knowledge of the international legal system has come about. A spirit of challenge to the political system and to the conditions under which Hawai`i has been controlled has also resulted. As a consequence, issues of indigenous rights, self-determination, racial equality and racial/historical justice, cultural survival, human rights attributable to all people regardless of ancestry, all add to the potpourri of ideas and concerns in the present discussions of restructuring our communities and the broader society. Thus, we pose in a question form, our primary topic: "Is there a point of balance between Hawaiian indigenous rights, decolonization and democratic ideals in the Hawai`i society?" Such discussions here in Hawai`i and worldwide oftentimes lack precise definitions. For example, what are the specifics of Hawaiian indigenous rights? At what point is one "indigenous"? Is it a time factor marked by a certain period in history in which one's ancestor was present upon a land? Is indigenous-ness to be measured by blood quantum? Is it a matter of choice - whether one chooses to be identified as a person indigenous to a place? How closely tied to "historical rights" are "indigenous rights?" Another source of misunderstanding is over decolonization. Decolonization is oftentimes rejected as an appropriate application to Hawai`i because some simply can not comprehend Hawai`i's relationship to the United States as one of "colonization." Colonization, to some, occurs in other lands, by other countries to other people. Therefore, colonization and decolonization as it applies to Hawai`i, must be clearly defined and appreciated. Defining democratic ideals can also be problematic. Do they exist in practice in any society or do they remain simply that - ideals? How do democratic ideals fit within societies which were traditionally based upon different ideals? Many societies revere their elders or specially trained or anointed persons and leave to them certain decisions for the society. Not very democratic but certainly consistent with their experiences and cultural code. Is it really democratic ideals which we are pressing for or are we in search of a sense of pono - of fairness, equity, respect, compatibility, balance, and many other social qualities which may have absolutely nothing to do with "democratic ideals?" Let us visit these three areas of considerations: I: HAWAIIAN INDIGENOUS RIGHTS For purposes of this discussion, I will define the Hawaiian indigenous people as the people who descend from ancestors who were inhabitants of Hawai`i prior to the year 1778. Indigenous rights in Hawai`i involve a wide area of review. It includes specific native rights developed principally after invasion and continues to the present. It also takes into account rights applicable to the general population but which have particular impact upon native Hawaiians. Perhaps the aspect most interesting to today's observer is the on-going development of indigenous peoples' rights and how the native Hawaiian people are participating and guiding the developments applicable to them. A: Specific native rights: 1. Pre-1893 Hawaiian indigenous rights which existed prior to 1893 are difficult to find. The social conditions at that time were such that little attention was paid to the distinction between indigenous and non- indigenous people, therefore it did not have a large impact upon the creation of the laws of Hawai`i. The m_hele process of dividing the lands of Hawai`i do mention native tenants and kuleana lands and the rights of such tenants to gain access to the sea and mountains to gather materials. However, there was no clear distinction between indigenous and non- indigenous people, even with the term "native" tenant. In fact, looking at surnames in several cases following the m_hele,and if we assume such surnames reflected the ethnicity of the litigants, it appears the Hawai`i courts, both pre- and post-1893, dealt with all people without distinction as to indigenous-ness in terms of native tenants and Kuleana lands. The Kuleana Act of 1850 spelled out the following protection: the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or k leaf, from the land on which they live, for their own private use . . . The people shall also have a right to drinking water, and running water and the right of way. This provision still remains to this day in the present Hawai`i Revised Statutes §7-1. 2. 1893 - 1959 Rights specific to the native people are still to be found after the illegal overthrow of the Hawaiian nation. Although they were created after the overthrow, these rights are rooted in Hawai`i's prior status as an internationally recognized nation prior to the U.S. attack in 1893. One of the first truly indigenous rights in Hawai`i is found in the Hawaiian Homes Commission Act of 1920. The act can be seen as an attempt to stave off the applicability of pre-existing homesteading laws. These laws required the territorial government to open public land for homesteading in a given area when 25 or more so petitioned. Many of the lands under sugar leases were soon to expire resulting in the lands reverting to the Territorial government as part of the public lands trust. The Hawaiian Homestead Commission Act was actively pursued by sugar interests as a substitute homesteading program to prevent the taking of good agricultural lands by the general public. Lands designated to be included in the Hawaiian Homestead program consisted of marginal or poor agricultural lands. The beneficiaries of leases under the 1920 act were the "native Hawaiians" defined as descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778. 3. Post-1959 A second source of indigenous rights traces its roots to Hawai`i's Admissions Act at Section 5(f) which requires the new State to hold "ceded lands" for five specific purposes, one of which was "for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920. . ." That provision was generally ignored by the State under a belief that it had the discretion to spray the benefits of the ceded lands over the five purposes set out by that act. The other four purposes being public schools and other educational institutions, development of farm and home ownership, public improvements, and lands for public use. Most of the proceeds from ceded lands went to fund educational institutions. In the 1978 State Constitutional Convention, new provisions were added to the constitution, defining two specific beneficiary groups - the native Hawaiians and the general public, creating the Office of Hawaiian Affairs which would hold title to property transferred to it on behalf of native Hawaiians and Hawaiians , and to formulate policy relating to affairs of both Hawaiian groups. OHA would have its own Board of Trustees elected by Hawaiians (including native Hawaiians) to manage this office. In effect, a fourth arm of government was created. That convention also provided for the protection of traditional and customary rights of ahupua`a (section of land, often from mountain to ocean) tenants who are descendants of native Hawaiians, rights exercised for subsistence, cultural and religious purposes. B: General Law There are numerous laws protecting the general public which have had particular impact upon Hawaiians, as well as laws passed to give force to rights already established but ineffective when exercised by native peoples. The laws which protect the general public include rights of access to shoreline and beaches, fishing and gathering, use of public trails, water rights to grow taro (the traditional staple crop), legal procedures to quiet title to lands or adverse possession laws as well as protection to ancestral burial sites. C: United States Law There are several U.S. laws applicable specifically to indigenous Hawaiians, generally defined as one with any quantity of Hawaiian blood. A few tie specifically into the Hawaiian Homes Commission Act in which the native Hawaiians are defined with the 50% blood quantum requirement. Therefore, when defining Hawaiian rights established by Congressional act, State constitution or statute, one is always required to inquire how such indigenous people are defined, i.e., by the 50% blood quantum contained in the HHCA, or without such quantum. These acts or provisions which specifically identify native Hawaiians are generally based on need and social policy of the beneficiary group as opposed to the unique status of native Hawaiians as indigenous people. The U.S. programs created under these legislation include education, training, economic development and employment, specifically vocational education, job training partnership, economic opportunity, and employment preference, as well as housing, culture and arts , health, and substance abuse. Hawaiian religious freedoms, which include the protection of sacred objects, human remains and burial sites , are guaranteed by the First Amendment. D: International Law Establishing indigenous rights on the international stage is of recent vintage. Defining such rights with useful precision has been extremely difficult over this short period of time. Depending on who the speaker is and the times in which the definition of rights were declared, the rights described will differ. The very topic of the rights of indigenous peoples had for many years been simply pushed aside from the mainstream of human rights and decolonization. In the 1920s, an Iroquois patriot, Deskaheh and a Maori religious leader, Ratana both attempted to gain an audience at the League of Nations in Geneva but were refused. Today, quite the opposite is the case. The international arena is very actively involved with addressing the rights of indigenous people. What are indigenous rights according to those in the international arena? There seems to be two major trends developing. One is to speak of indigenous rights in the sense of maintaining, or regaining control over the destiny of one's spiritual, cultural, social, and economic development, to be able to educate one's children, and to have land rights respected, to be given a place within the political life of a larger society but to stay within the present political structure now governing them. The second trend is to promote the right to self-determination in the fullest international sense, the right to "freely determine their political status and freely pursue their economic, social and cultural development. . . freely dispose of their natural wealth and resources." Self- determination includes the right to separate from the metropolitan state which now governs the indigenous people - the right of divorce! As regards Hawai`i specifically, the second trend would lead to the right to independence of Hawai`i from the United States of America. 1: International Labor Organization (ILO) In 1957, the International Labor Organization (ILO) determined, without consultation with indigenous representatives, that indigenous rights were to be seen as a process of "integration of indigenous and other tribal and semi-tribal populations" into the dominant society. Thirty-two years later, and after consultation with indigenous representatives, the ILO adopted another convention promoting empowerment of indigenous and tribal peoples, respecting their political institutions and processes, to retain their traditions, cultures, and various forms of social order. Conventions, however, are instruments which become applicable to countries only upon ratification by such countries. That ILO convention has been ratified by only a handful of countries and while it stands as the only existing international convention dealing with the rights of indigenous peoples open for ratification, it is not widely adopted in the world. The United States of America, although sending active participants to represent the government to the ILO committee meetings which developed this convention, has not ratified it and has shown no interest in doing so. Neither has it ratified the previous 1957 ILO Convention #107. 2: United Nations (U.N.) The United Nations Working Group on Indigenous Populations has for over ten years been addressing the development of a standard of rights for indigenous peoples. The final draft standard was adopted in its 1993 session and is now making its way to the General Assembly, for adoption. Today, that working group consistently uses the word peoples instead of population. The U.N. General Assembly, twice declared international observance of indigenous people for the year and for the decade. The U.N. World Conference on Human Rights also used the term people in its call for an international decade (1994 to 2003), adopted by consensus on December 21, 1993. Populations, peoples and people are terms which have major implications in international law as regards the right to self-determination. All peoples have the right to self-determination, according to the International Covenants on Civil & Political Rights and on Economic, Social and Cultural Rights as well as the Declaration on the Granting of Independence to Colonial Countries and Peoples. Not so with populations or people! In its draft declaration of rights of indigenous peoples, the U.N. working group has not only chosen the term peoples, but has also firmly stated that indigenous peoples are equal in dignity and rights to all other peoples. It has gone so far as to declare in no uncertain terms: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. These distinctions between these three terms seem to defy logic, at least the English language, but are indeed the basis for much of the discussion on the extent of the rights of three to five hundred million indigenous people around the world. (The ILO estimates three hundred million, but fails to count the scheduled caste (dalit) of India making up approximately 200 million more.) 3: Hawaiian views on developing laws If one was to survey Hawaiian sovereignty advocates, positions are often divided between a "nation within a nation" and an "independent nation" model. Let's take a moment to delve into the Hawaiian debate and how it has been seen from the international law principle of self- determination. On one side of the spectrum of self-determination are advocates for a nation within a nation program, whereby indigenous Hawaiians will be able to form their own government, controlling certain designated parcels of lands, and be accorded the right to exercise control over their own institutions, ways of life and economic development and maintain and develop their identities, language and religions. However, they will remain citizens of the United States of America, respecting the supremacy of the U.S. Constitution, the U.S. Supreme Court as the final arbiter of that Constitution, the U.S. President as the chief Executive over this nation, etc. In other words, every claim of domination by the United States would remain in place except for the special rights bestowed to the indigenous Hawaiian people through specific legislation emanating from the U.S. Congress, declared by the Supreme Court, or granted by Presidential fiat. For such advocates, the "self" in self-determination is defined exclusively as the indigenous people. "Determination" or choice is for Hawai`i to remain a part of the United States of America. On the other side of that spectrum are advocates of complete independence from the United States and the re-creation of a nation of a multitude of people of various races. Such a nation would be free to exercise control over its territory, which includes the Hawaiian archipelago, Kalama (Johnston) atoll, as well as the 200 mile exclusive economic zone defined by the U.N. Convention on the Law of the Seas. Advocates of complete independence generally argue that the "self" should be limited not to any particular ethnic community or grouping of people, not to any particular race, but to a people who relate to Hawai`i as the place of their singular loyalty and allegiance, to those people who, either through ancestry, birth, or acculturation, are of the indigenous race or of the larger indigenous milieu, i.e., having become associated with the `_ina (land, society, country) in the sense of becoming a kama`_ina, hoa`_ina, kua`_ina, kupa o ka `_ina or keiki o ka `_ina (person familiar with the `_ina, friend to the `_ina, backbone of the `_ina, citizen or native to the land, or child of the `_ina). Those people who fall within such a description are eligible to participate in the exercise of self- determination upon declaring their citizenship in the Hawaiian nation and disavowing citizenship in another. Among those arguing for an inclusive definition of the Hawaiian "self", there is recognition that the special rights of indigenous people must be protected within an independent nation. The indigenous people will retain certain special rights and advantages generally as defined by internationally developing standards of autonomy as well as rights specific to the Hawaiian situation. Such rights specific to the Hawaiian situation would include exclusive decision over further immigration from foreign lands (including the United States of America), foreign ownership of Hawaiian lands, international state protocol, selection of a symbolic head of state in the office of the Mo` (King or Queen), programs affecting the cultural protection and development of the traditional culture, and prevention of any further diminishment of native Hawaiian rights in the general laws of the nation of Hawai`i. While those are indeed serious differences in approaches to Hawaiian sovereignty, there are also many similarities. Both "nation within" and independence advocates generally agree that the native Hawaiian people should be entitled to special rights. The international community seems very favorable to these rights as well. What are those special rights? First is the right of self-definition. The United States, in defining indigenous people, use extrinsic criteria such as genealogy and behavior or blood quantum. Such definitions are racist, in a century that has witnessed unspeakable crimes based on racist criteria. Indigenous peoples organizations and the International Labor Organization have called for the right of indigenous peoples themselves to define who they are, using their own criteria. This is crucial since the power to define indigenous peoples include the power to deny them certain legal rights. Second is the right of participation. Whenever legislative or administrative measures are considered which may affect indigenous peoples directly, indigenous peoples have asserted that they are entitled to have full participation in such decision-making. Third is the right of self-government. For indigenous people, self- government includes the right to decide their own priorities in the process of development, as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use; and to exercise control, to the extent possible, over their own economic, social and cultural development. Such self-government includes management and policy control over vocational training, health services, and education. It also includes a degree of control over the administration of justice and to retain or create social institutions to address the needs of indigenous people. Fourth is territorial rights. These are rights with regards to indigenous peoples ownership, use and control of lands and resources which they currently or traditionally occupy, use or control. Rights to hunt, fish, trap and gather, control mineral and subsurface resources, and to reclaim lands previously taken, are all incorporated under this general right. Fifth is cultural rights. Such rights include contacts with other indigenous and tribal peoples across borders or oceans to pursue shared economic, social, cultural, spiritual and environmental concerns. Cultural rights also include the right to have indigenous children educated in their indigenous language, to be able to give children indigenous names (important in some countries which refuse to recognize indigenous names), etc. II: DECOLONIZATION Decolonization is spun out of the principle of self-determination and is well rooted in the United Nations. Although quite clearly defined in international law, this term is much abused by certain countries charged with specific obligations to bring it about. Hawai`i is an ideal decolonization case in point. Unbeknownst to most of the people in Hawai`i, in 1946, under the charter of the United Nations at Article 73, the United States was charged with an obligation to transmit to the U.N. information on territories held by it under a colonial type arrangement ("Non-Self-Governing Territories") on steps being taken to bring about the exercise of self-governance. Hawai`i was included as such a territory, along with Alaska, American Samoa, Guam, Panama Canal Zone, Puerto Rico and the Virgin Islands. When these territories reached a full measure of self-governance, the reporting requirement was fully met. Self-governance was reached when a territory emerged as a (a) Sovereign independent State; (b) Free State in association with an independent State; or (c) Non-independent state fully integrated with an independent State. A: The case of Hawai`i Upon annexation to the U.S. in 1898, Hawai`i underwent traumatic changes affecting every aspect of life. The myth of the superiority of the Anglo-Saxon race was continuously propagated. The customs and traditions and even the cultural names of the people were suppressed in this recycling effort. The arts and sciences of Hawai`i's ancestors and the Hawaiian culture was ground to near extinction. A massive brainwashing program was begun to convince Hawaiians that the United States was the legitimate ruler and that the Hawaiians were no longer Hawaiians but Americans. The term Hawaiian was redefined as a racial rather than a national term. Children were forced to attend American schools and there taught to pledge their allegiance to the United States, trained in the foreign laws, told to adopt foreign morality, trained to compete and stand out above one's peers rather than to share and uplift one another, to speak no language but the foreign (English), and to adopt the foreign (American) lifestyle. Transmigration took place. Hawai`i witnessed a tidal wave of Americans bringing with them a barrage of cultural, moral, religious and political concepts. The military turned Hawai`i into its Pacific fortress converting Pearl Harbor from a coaling and fueling station to a major naval port. Freedom of trade between Hawai`i and other countries was limited to the extent U.S. laws permitted such trade. Every aspect of Hawai`i was Americanized. Finally, after three generations of brainwashing and reshaping the Hawaiian social, economic and political environment, "Hawaiians" were given the opportunity to be equal Americans! The United States placed the following question to the "qualified" voters in Hawai`i: Shall Hawai`i immediately be admitted into the Union as a State? "Qualified" voters were Americans who were residents of Hawai`i for at least 1 year. The U.S. provided the vote for thousands of American citizens brought in through its transmigration program, through military assignments, and through generations of socialization of Hawaiian citizens. The Hawaiian "self" which carried the ancestry, the history and the consciousness of the Hawaiian nation was now replaced by an altered "self". Those who resisted that American alteration, who refused to succumb to foreign domination and insisted on not a United States, but a Hawaiian citizenship, could not vote. The U.S. government not only altered the "self," but also manipulated and limited the "determination" options which should have been made available. In posing the "statehood" question so adeptly, the U.S. government simply foreclosed any real choice of "determination" by limiting Hawai`i to either remaining a territory of the United States or becoming a "State" within its union. One way or the other, Hawai`i was trapped into remaining under the domination of the United States. The question, "Should Hawai`i be independent?" was never asked. The result of this maneuver was that the "qualified Americans" chose Statehood overwhelmingly. Hawai`i thus became a member of the union of states, its fate said now to be sealed in a permanent political bond to the United States of America under a theory of non-secession of U.S. states, citing as authority, the war between the states a century earlier. After the Hawai`i Statehood vote, the U.S. reported to the U.N. that Hawai`i's constitutional status had changed and that it was now a state of the United States. The communique to the U.N. related that a special election was held on June 27, 1959 in which the proposition "Shall Hawai`i immediately be admitted into the Union as a State?" was adopted. The communique did not describe the events leading up to the U.S. takeover and control of Hawai`i nor did it discuss the fact that only U.S. citizens were allowed participation in that referendum. Upon this communique, the U.N. General Assembly by Resolution 1469 (XIV) expressed an opinion that Hawai`i effectively had exercised the right to self-determination and had freely chosen its status as a state of the Union. The U.S. was thus relieved of further responsibility to report to the U.N. As the 1960s began, the international movement toward decolonization had a major boost. In its Declaration on the Granting of Independence to Colonial Countries and Peoples, the U.N. General Assembly said: Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self- Governing Territories, Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations, Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace, .... Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious crisis, an end must be put to colonialism and all practices of segregation and discrimination associated therewith, .... Convinced that all peoples have an inalienable right to com- plete freedom, the exercise of their sovereignty and the integrity of their national territory, Solemnly proclaims the necessity of bringing to a speedy and unconditional end to colonialism in all its forms and manifestations; And to this end Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All 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. 3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. ... 5. Immediate steps shall be taken, in Trust and Non-Self- Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or color, in order to enable them to enjoy complete indepen- dence and freedom. The U.N. in 1961 established the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, generally called the Special Committee on Decolonization, to oversee the progress by metropolitan countries in the decolonization of their territories. Is the door for decolonization as applied to Hawai`i closed because Hawai`i was taken off the list of territories under U.S. obligation in 1959, before the U.N.'s decolonization declaration? Not necessarily. Let's explore the case of Puerto Rico, the concept of fraud, and the general principle of the continuing right of self-determination. B: The case of Puerto Rico and the concept of fraud In 1953, the U.N. General Assembly, based upon the United States report that Puerto Rico had chosen a commonwealth status with the United States, concluded that the U.S. had no further obligation to Puerto Rico as a non-self- governing territory to give to the U.N. yearly status reports. In the 1980s, that special committee received repeated reports that the United States committed a fraud against the United Nations by reporting that the people of Puerto Rico had freely chosen association with the United States while in reality, tens of thousands who supported independence had been victims of systematic discrimination and persecution by the United States. The Special Committee On Decolonization expressed great concern over this issue brought before it and requested a response from the United States. The U.S. Permanent Representative to the U.N., in a letter dated 15 September 1986, reminded that committee that "the United States does not consider the issue of Puerto Rico a proper subject for examination at the United Nations." He continues, "As you are aware, Puerto Rico was removed from the United Nations list of Non-Self-Governing Territories by resolution 748 (VIII) in 1953, through a vote of the General Assembly.... [A]ny attempt to address the question of Puerto Rico in the United Nations constitutes interference in the internal affairs of a Member State. . .The Special Committee has no jurisdiction over Puerto Rico, and its consideration and adoption of a resolution on the issue of Puerto Rico are not only inappropriate but a serious breach of its mandate." The Special Committee on Decolonization noted that for decades there has been a systematic practice of discrimination and official persecution directed against tens of thousands of Puerto Ricans who support independence. The committee reaffirmed 1. ". . .the inalienable right of the people of Puerto Rico to self- determination and independence, in conformity with General Assembly resolution 1514 (XV) of 14 December 1960, and the full applicability of the fundamental principles of that resolution with respect to Puerto Rico. 2. Expresses its hope, and that of the international community, that the people of Puerto Rico may exercise without hindrance its right to self-determination, with the express recognition of the people's sovereignty and full political equality. . ." The committee decided to keep the question of Puerto Rico under continuing review. In subsequent years, the committee repeated its position and in 1990 concluded that "legal measures should be adopted which will bring to a successful conclusion, as soon as possible, a process leading to the self-determination of the Puerto Rican people." This conclusion of the special committee is consistent with the concept that there is no time limitation for fraud. A people, once defrauded, may raise the issue of that fraud even though many years may have passed. C: General principle of self-determination as a continuing right The principle of the continuing right to self-determination does not rise or fall on the analysis one gives to the case of Puerto Rico. That case merely exemplifies the right of self-determination as a never ending right. Some have suggested that Hawai`i, having already been placed before the General Assembly by report of the United States, and having been taken off of the list of places to be afforded self-determination based on that U.S. report, can not argue for another shot at self-determination. Human rights, once exercised, do not lose their validity. The right of free speech does not end with someone having once spoken. The right to a fair trial does not perish having once had a fair trial. Nor does the right to vote, the right to assemble, and any other right expire upon their use. This being the case, is it not also the case that the right to self- determination, even if having been properly exercised, still remains a continuing right? To hold otherwise would be to deny the very principle that the basis of the authority of government lies in the people so governed. Such a conclusion would be an affront to the United States Declaration of Independence itself which retains its eloquence and freshness at every reading: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness. . . . The principle contained in the U.S. declaration is also contained in the various documents of the United Nations extolling the right to self- determination. The Universal Declaration of Human Rights declares in part: The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be held by secret vote or by equivalent free voting procedures. Considering the Special Committee on Decolonization's action relative to Puerto Rico, the fact that self-determination was never exercised in Hawai`i either in 1959 or any other moment during the 101 years of colonization under the United States of America, and the assertions within the United Nations system of the continuing right to self- determination, there can be no serious claim of the termination of self- determination to the people of Hawai`i by the fraud of 1959. III: DEMOCRATIC IDEALS "Democratic Ideals" is a very difficult concept to work with because it is very vague. The very fact that it is called an "ideal" suggests that there are limited experiences of its conversion to reality. Taken in its strictest sense of democracy, democratic ideals speak of a society which follows governance by the people, either directly or through elected representatives. We could label this Democratic Ideal I. Democratic ideals, however, are oftentimes associated with more than a people's exercise of voting rights every so-often. Associated with the voting rights should be equality before the law of all people, irrespective of race, religion, creed or culture, sex, age, political, economic or sexual propensities, etc. It oftentimes includes similar equality in social, economic and political life as well as before the law. It also includes the rights enshrined in the United States' constitution's Bill of Rights and subsequent amendments to that constitution. We could label this Democratic Ideal II. The difficulty in working with either Democratic Ideal I or II is that oftentimes such ideals are measured by formula which has emerged out of a specific historic and cultural background, imposed upon other societies. Democracy originated to bring about greater justice within a society. European history of abusive sovereigns mistreating the people resulted in revolutions to produce a new order of power and protection, residing in the citizenry. A government of, by and for the people could now be fashioned upon democratic ideals following this power shift. But those democratic ideals themselves have too often ended up as weapons of oppression and destruction. Democracy has become, especially in first world countries which expound its merits, nothing more than a simple game of numbers, with the side winning the majority winning the game. Winning majorities has developed into an art of mass psychology via modern communications technology, including newspapers, magazines, television and radio. The winners of such democracy games are generally the "state" (those within the administration of the day), merchants or a combination of both, while the people are used as nothing more than pawns. As a result, the pawn participants in these games continually withdraw from this game, realizing the futility in the democratic exercise. The fact is, that for at least some societies, democratic ideals may not be the best form of governance. The democracy concept is built upon a deep culture which comes from the western world. It is a concept of the elevation of individual rights above group interests, of supremacy and domination mentality which believes that the concept of the survival of the fittest is part of the natural order of the world, of the principle of "anything goes unless specifically prohibited by law." For a young man of eighteen to have an equal voice in a traditional community meeting in which the elders are highly revered for their years of accumulated experience and special training can be destructive to the social fabric of that community. For one person to stand apart from the rest of the society, purchasing a new car while unemployment is rampant in the neighborhood and 40% of the people are without shelter could constitute the height of violation of the social order in that community. Yet, both conducts would be perfectly acceptable under the concept of democratic ideals. Democratic ideals became workable in traditional societies not as a natural order of things but only by first fracturing the cultural base of that society so as to place higher value on the good of the individual above that of the group. A new and different cultural base of individualism is then developed upon which the U.S. Bill of Rights, for example, could be ingrained into that society. Consider some common steps of cultural colonization of an indigenous people : Step 1) Denial & Withdrawal: Process in which the colonizer denies the validity or even existence of the indigenous "culture", accompanied by indigenous people withdrawing from the practice and identification with that culture. Step 2) Destruction/Eradication: Direct physical elimination of representations of the culture such as the burning of religious images, the people's libraries and the killing of the leadership who hold fast to their cultural heritage. Step 3) Denigration/Belittlement/Insult: A process in which any practice, observation, or acknowledgement of the traditional culture is treated with contempt and even criminality. Here, even symbols of evil must be imported by the colonizer in order to gain legitimacy, e.g., importation of a Dracula or other representatives of evil into indigenous communities while alluding to indigenous representatives of evil as ignorant superstitions. Step 4) Surface Accommodation/Tokenism: Whatever remnants of a culture survives, they are merely accommodated in an atmosphere of folklorism, of "showing respect to the old folks and to tradition." Museums and cultural parks thrive on this level as long as the culture is not really practiced in the larger society. Step 5) Transformation: The cultural practice is transformed into the culture of the dominating society, for instance, a Christian church may use an indigenous person and incorporate some indigenous religious terms and practices within the Christian expression of religion. Step 6) Exploitation/commercialization: The final stage where the cultural practice of the indigenous people is sought for its commercial, artistic or political value. Along with this cultural colonization is the political colonization in which new values are substituted, and along with new values are the new preachers of such values. Thus, elders operating within their traditions are denigrated while judges, study commissioners, professors and governors are elevated. The process of consultation and consensus building is denigrated and the western ideal of political campaigns and elections is elevated. The result is that those most familiar with the rules of the new game having the advantage. CONCLUSION Is there room enough for each of these principles, Hawaiian indigenous rights, decolonization rights and democratic ideals, under the umbrella of human rights in Hawai`i? Or are we doomed to selecting one over the other? We are in a constant search in political theory, mathematics, history, sociology, economics, and law for a resolution to this question. I suspect there are no answers in any of those disciplines. The answer is found in simple humanity. Are we willing to make the space within our society so that we can accommodate as wide a range of people, or shall we relegate ourselves to the domination game? Why can't a society be decolonized, maintain its independent status in the international community and respect the rights of its indigenous citizens within its national character? Why can there not be a society which respects its elders and traditional decision makers, respects the values of the indigenous culture, yet makes room for the dignity of each individual, regardless of indigenous-ness to this particular land? Why can't the indigenous people define themselves beyond biological and into social and cultural definitions? Either we adopt a culture of exclusion or one of inclusion. If exclusion, these three principles of human rights, indigenous rights, decolonization and democratic ideals, are incompatible. If we undertake a culture of inclusion which includes compassion for all, respect for each, protection of the dignity of the indigenous people of this place, there is certainly room enough for everyone. When people step beyond the legalistic interpretation of human rights, they will enter the next level of humanity - the level of human care, of concern, of love for one another, not because of the mandate of a court or an international organization, but because of people getting in touch with the humanity within themselves and within the societies surrounding us. Only at that point of compassion will real progress toward a just and peaceful society be made. And we will find we have come full circle to the ideal we so often speak of in Hawai`i, Aloha.` "Cleveland's Address to Congress, 18 December 1893," Richardson, A Compilation of The Messages and Papers of the Presidents: 1789-1908, Vol. IX (1908); Apology by the United States for the Overthrow of the Kingdom of Hawai`i, SJR 19, Pub. L. 103-150 107 Stat. 1510. See generally, Cause for Hawaiian Sovereignty, Institute for the Advancement of Hawaiian Affairs; December 1992; P_k_ Laenui, Straight Talk on Hawaiian Sovereignty, IAHA, June 1994, available from the Hawaiian Sovereignty Elections Council, DAGS, State of Hawai`i or IAHA at 86-649 Pu`uhulu Rd., Wai`anae, Hi 96792-2723. By 1887, Hawai`i had treaties and conventions with Belgium, Bremen, Denmark, France, the German Empire, Great Britain, Hamburg, Hong Kong, Italy, Japan, Netherlands, New South Wales, Portugal, Russia, Samoa, Spain, the Swiss Confederation, Sweden and Norway, Tahiti, and the United States. (Treaties and Conventions concluded between the Hawaiian Kingdom and Other Powers since 1825, Elele Book, Card, and Job Print., 1887). Kazi Aktar Hamid, Self-Determination: the case study of Hawai`i, Dissertation submitted to the School of Graduate Studies and Research in partial fulfillment of the requirements for the degree of the Doctor of Laws (LL.D), 4 November 1991, University of Ottawa, hereafter cited as Hamid dissertation, at p. 247. Hamid dissertation supra 2, "The development of the Unequal Treaty Doctrine", pp.276-282. Definition of Aggression, United Nations, Annex to GA Res. 3314 (XXIX) of 14 December 1974. Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Annex to GA Res. 260-A (III of 9 December 1948. Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N.GA Res.1514 (XV) of 14 December 1960. P_k_ Laenui, Straight Talk on Hawaiian Sovereignty, IAHA, JUNE 1994, at pp 34-37. Id. at p. 37. Id. pp. 38-41. Definitions of indigenous people are plentiful, some stressing objective elements (ancestry, culture, language, etc.) and others stressing subjective elements (self-identification and acceptance). Jose R. Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations Vol. V, Conclusions, Proposals and Recommendations, E/CN.4/Sub.2/1986/7/Add.4, para. 21-22; Convention Concerning Indigenous and Tribal Peoples in Independent Countries, ILO Con.169 (1989), Article 1; Hawaiian Homes Commission Act of 1920, infra at note 16; Consensus within the Hawaiian community. The phrase in Hawaiian usually reads, "ua koe ke kuleana o n_ kanaka," which has been interpreted by the Hawai`i courts to mean, "reserving the rights of native tenants." Rogers v. Pedro, 3 Haw. App. 136, 138 (1982)). Ha`alelea v. Montgomery, 2 Haw. 62 15 74 (1858). Ha`alelea, Supra; Oni v. Meeks, 2 Haw 87 (1858); Rogers v. Pedro, supra, Henry v. Ahlo, 9 Haw 490 (1894); Palama v. Sheehan, 50 Haw 298, 440 P.2d 94 (1968); Ha`ik_ Plantations Assn. v. Lono, 1 Haw App 263, 618 P.2d 312 (1980) The presumption made as to the litigants' ethnicity is not necessarily correct, given the multi-ethnicity of Hawai`i, but in the Montgomery case, the court did note specifically that the defendant was from England. That fact did not appear to affect the court's decision. Act of July 9, 1921, Pub. L. No. 34, ch. 42, §§203,207, 208, 42 stat. 108. Melody Kapilialoha MacKenzie, Native Hawaiian Rights Handbook, OHA & NHLC, 1991 at. 17. Supra at note 14, § 201(7). The use of these terms are used in the racial and not political sense in this section of the paper. See Article XII, Sections 4, 5, & 6, Constitution of the State of Hawai`i as amended in 1978. Article XII, §7, State Constitution : The State reaffirms and shall protect 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, subject to the right of the State to regulate such rights. See Native Hawaiian Rights Handbook, p. 219-220, Na Ala Hele program regarding public trials, see §264-1, H.R.S., Act 236, L. 1988; Barba v. Okuna, No. 4590 (3rd. Cir. Oct 14, 1980) in which rights were established by custom rather than specific statutory provision. See Native Hawaiian Rights Handbook, Supra at n. 17, pp. 294-303. Pub. L. No. 100-297, 102 Stat. 130 (1988) Hawkins-Stafford Elementary and Secondary Education Improvement Act (includes provisions for education regarding drugs, family based education, higher education, gifted & talented programs); 20 U.S.C. §351 (1988) Library Service and Construction Act. See "Federal Programs and Benefits for Native Hawaiians" in the Native Hawaiian Rights Handbook, Supra at n. 17, especially pages 296 - 298. 20 U.S.C. §2301 et seq. (1982) 29 U.S.C. §1501 et seq. 42 U.S.C. §2701 et seq Pub. L. No. 95-625, §505, 92 Stat. 3499 (1978) amended Pub. L. No. 96-87, §401(i), 93 Stat. 666 and Pub. L. No. 96-565, §101, 94 Stat. 3321. 12 U.S.C. §1701 et seq. (1986). 20 U.S.C. §4441 (1986). 42 U.S.C. §11701, P.L. 100-690, 102 Stat. 4223 (1988); Older Americans Act of 1965, P.L. 89-73, as amended; P.L. 100- 175, Title VI, Part A -- Native Hawaiian Program, et. seq. 21 U.S.C. §1101 et. seq. (1982); 20 U.S.C. §4601 et. seq.(1986), 42 U.S.C. §4541 et seq. (1982); 42 U.S.C. §4577 (1982). The National Museum of the American Indian Act, 20 U.S.C. Sec.80q, Pub. L. No. 101-185 (1989). American Indian Religious Freedom Act of 1978, 42 U.S.C. §1996, Pub. L. No. 95-341 (1978), recognizes that native religious practices warrant consideration prior to federal administrative actions. See Native Hawaiian Rights Handbook, p. 261. Another Step: The UN Seminar on Relations between Indigenous Peoples and States, paper by Douglas Sanders, U. of B.C., September 14, 1989; A Second Glance radio interview with Russell Barsh hosted by P_k_ Laenui, Hawai`i Public Radio KHPR FM 88.1, Hawaiian National Broadcast Corporation, Nov. 6,20,27 and Dec. 4, 1993. Art. 1.1, International Covenant on Civil and Political Rights, Annex to GA Res. 2200 (XXI) of 16 December 1966, ratified by the United States of America; Art. 1.1, International Covenant on Economic, Social & Cultural Rights, Annex to GA Res. 2200 (XXI) of 16 December 1966, signed but not ratified by the United States of America; Declaration on the Granting of Independence to Colonial Countries and Peoples, Art. 2, GA Res. 1514(XV) of 14 December 1960. Chapter XI, Art. 73, Charter of the United Nations; GA Res. 66 (I) of 1946 designating Hawai`i as a non-self governing territory under U.S. administration; Principles Which Should Guide Members in Determining Whether or not an Obligation Exists to Transmit the Information, Called for in Article 73(e) of the Charter of the United Nations, Annex to GA Res. 1541 (XV) of 15 December 1960; Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) of 14 December 1960. Convention Concerning the Protection and Integration of Indigenous and other Tribal and Semi-tribal Populations in independent countries, ILO Convention 107 (1957). Convention Concerning Indigenous and Tribal Peoples in Independent Countries, ILO Convention 169 (1989). Interview by P_k_ Laenui with U.S. delegation to the World Conference on Human Rights, June 1993, Vienna, Austria. Report of the Working Group on Indigenous Populations on its eleventh session, E/CN.4/Sub.2/1993/29 of 23 August 1993. 1st preambular paragraph, note 29. Article 3, supra note 29. See IAHA response dated May 23, 1993, to the Hawaiian Sovereignty Economic Symposium held at the William Richardson School of Law, University of Hawai`i, June 1993. U.N. Convention on the Law of the Seas done Dec. 20 1982, U.N. Doc. A/CONF 62/122. One system of defining Hawaiian citizens is to identify a pool of eligible people who would decide for themselves whether to assume Hawaiian citizenship or another national citizenship such as one in the United States of America, etc. Those qualified in such a pool are: all indigenous Hawaiians, all descendants of Hawaiian citizens regardless of their ancestry, all persons born in Hawai`i, all who parented children born in Hawai`i, all persons married to Hawaiian citizens, all persons who have resided continuously in Hawai`i for a minimum length of time (either measured as a portion of one's life or in numbers of years) and who showed a sufficient degree of acculturation to Hawai`i which may be done by one or a combination of test, completion of specified areas of study, sponsorship by Hawaiian citizens, etc. Non citizen residents of Hawai`i would consist of mostly those who would be eligible citizens but who had chosen not to undertake Hawaiian citizenship at the time. See Straight Talk at note 2. See Laenui, Straight Talk on Hawaiian Sovereignty, IAHA, June 1994; Listener's Guide to 3 Days in January, Hawaiian National Broadcast Corporation, Jan. 1993. See 25 C.F.R. pt. 83; Richard W.W. Weatherhead, "What is an "Indian Tribe"?-The Question of Tribal Existence," 8 Am Indian L. Rev. 1 (1980); Russell Barsh, "A Challenge for Anthropologists," 10(2) Practicing Anthropology 2, 20-21 (1988). Hawaiian Homes Commission Act, 1920, (Act of July 9, 1921, c.42, 42 Stat 108). See generally, the UNWGIP report, Infra note 28; ILO Convention 169, WCIP Declaration of Rights of Indigenous Peoples, IV General Assembly, Panama, 1984. GA Reso 66 (I) of 1946. Principles Which Should Guide Members in Determining Whether of not an Obligation Exists to Transmit the Information, Called for in Article 73(e) of the Charter of the United Nations, Annex to GA Res. 1541 (XV) of 15 December 1960. Interviews by author over the years with Charles Ka`uhane, 1968, Stanley Hara, 1968, William Isaacs, 1984, Nalu Simeona, 1970-1988, Nadao Yoshinaga, 1966-1968. Interviews by author with Daniel Hanakahi, 1980-1990; A.K. Chong aka Sam King Sheong aka Samuel Chong 1980-1986; Gregory Kal_hikiola N_li`i`elua Keawe, 1978-1988; Ephriam M_kua, 1974- 1982; Plahi P_k, 1978-1985; Mary Kawena P_ku`, 1973; Louis `Ail_, 1974-1975; Ned Burgess, 1968-1982; Arthur Cathcart, 1982; Arthur Chun, 1982-1984; Harry K_nihi Mitchell, 1984-1988; David Roy, 1984-1985; Marie (Aunty Momi) Ruane, 1977-1993; Nalu Simeona, 1970-1988. See Supra Note 2, Straight Talk on Hawaiian Sovereignty, IAHA, June 1994, at pp. 34 - 37. The Admission Act of March 18, 1959, Pub L 86-3, 73 Stat 4. Supra note 2, Straight Talk on Hawaiian Sovereignty at pp 37-38; The Admissions Act of March 18, 1959, Pub. L. 86-3, 73 Stat. 4; Chapter 11, §8, Revised Laws of Hawai`i, 1955 Communications of 17 September 1959 from the Government of the United States of America, Fourteenth Session, Annexes, agenda item 36, U.N. document A/4226. GA Res. 1514 (XV) of 14 December 1960. GA Res. 1654 (XVI) of 27 November 1961. Report of the Rapporteur, Special Committee Decision of 14 August 1986 Concerning Puerto Rico, A/AC.109/L.1633 23 July 1987. Special Committee Decision of 14 August 1986 Concerning Puerto Rico, A/AC.109/925 11 August 1987. U.N. document A/AC.109/1051. Article 21(3), GA Res. 217 (III) of 10 December 1948. See UNESCO, Many Voices One World, Towards a new more just and more efficient world information and communication order, The Anchor Press Ltd, 1981, at Chapter 6, Disparities, p. 123 et seq.; See also the New Internationalist, June 1994 on "Media," New Internationalist Publications Ltd.London, UK. A 2nd Glance, interview with Dr. Roger Ames and Dr. Dave Chappel on the subject of democracy and social justice, June 18, 1994, Supra N. 24. The spelling of "people" here is not a commentary on the earlier debate (pp. 11-12) but merely the use of proper English. Taken from an interview with Professor Virgilio Enriques of the University of the Philippines, author of the book, From Colonial to Liberation Psychology. The critique provided by Professor Enriques was aired on Hawaii Public Radio program entitled A Second Glance on April 17, 1993. Copy of the program is available for $10.40 (U.S.) from the Hawaiian National Broadcast Corporation, P.O. Box 25284 Honolulu, Hawaii 96825; PAGABABANGONGDANGAL, Indigenous Psychology & Cultural Empowerment, Virgilio G. Enriquez, Akademya ng Kultura at Sikolohiyang Pilipino, Philippines, 1994. (..continued)