HAWAIIAN SOVEREIGNTY and the NATIVE HAWAIIAN VOTE by Pþkþ Laenui, Member: Hawaiian Sovereignty Elections Council Director: Institute for the Advancement of Hawaiian Affairs President: Pacific Asia Council of Indigenous Peoples 86-649 Pu`uhulu Rd. Wai`anae, Hawai`i (via U.S.A.) Tel: 1(808)696-5157 Fax: 1(808)696-7774 email: plaenui@i-one.com 3 October 1996 INTRODUCTION Across Hawai`i, "Hawaiian sovereignty" is in the air. Whispered and shouted, the contents of prayers, poetry and prophecies, themes in songs and speeches, news headlines, lectures and sermons, it is unavoidable in the daily life of Hawai`i. It actually began 103 years ago with Queen Lili`uokalani, Hawai`i's reigning constitutional monarch who refused to despair after the U.S. invasion and overthrow of the Kingdom. She continued to demand the rights of her Hawaiian nation and her Hawaiian nationals. It has since been carried by Hawaiians throughout the generations - quietly, hidden, boisterous at times. Hawaiian Sovereignty is like the Pacific Ocean: it is deep and wide. Deep in that its substance stretches into a time of long ago, into a people and a culture steeped in spirituality molded from their particular intellectual, religious and mythological experiences and environment. It calls for respect of the integrity of a people first upon this homeland, the people who set the social and cultural foundation upon which those of other nations came. It is a call for the full realization of the special rights of the native people of Hawai`i to decide their own priorities in the process of self-determination as it affects their own lives, beliefs, institutions and spiritual well-being. It is a call to control their political, economic, social and cultural development. It is an appeal to recognize the right of the native Hawaiians to the seat of their spirituality, the foundation of their sustenance, the wellspring of their identity - the `þina - land. It is wide, encompassing people of all ancestral backgrounds, an array of national diversity and of spiritual expressions. It is a call for respect of the political development of a people who share a commonality of allegiance to Hawai`i and a cultural and familial continuity with the native Hawaiian people. It is a demand for the right to self-determination - to choose their political, cultural, economic, social and civil development. It is a demand for non-interference by colonial powers of the world with that development. Here is presented a part of the story of Hawaiian Sovereignty today. It is merely a portion of the unfolding drama, written daily in Hawai`i. I hope it will help to clarify your understanding of the issues surrounding Hawai`i. Aloha `þina, Pþkþ Laenui PART I: GENERAL SUMMARY There is another side to the picture postcard of the hula girl swaying in her grass skirt under the coconut tree with the American flag in the background. It is the picture of a proud, hard working, intelligent, and honest Hawaiian people whose ancestors criss-crossed the Pacific ocean long before Columbus came upon the Americas, whose literacy rate was at one time, the highest in the world, whose nation had almost a hundred diplomatic and counselor post around the world, whose leaders signed treaties and conventions with a multitude of states of the world, and whose King was the first Head of State to circle the globe traveling to America, Asia, and Europe before returning to Hawai`i. In five quick years, Hawai`i moved from independent nation/state to a colony of the United States of America. Following an armed invasion in 1893, by 1898, the U.S. claimed Hawai`i, without the consent of its constitutional monarchy or the Hawaiian nationals. For a time, Hawai`i was lost from the arena of international presence other than as a historical footnote. In 1946, the General Assembly of the United Nations through Resolution 66(I) noted Hawai`i as one of seven territories over which the United States was to administer pursuant to Article 73 of the U.N. Charter. By 1959, Hawai`i was removed from that status and considered a State of the U.S. The process under which this changed status happened is now under serious scrutiny for its failure to meet basic standards of self-determination. The Native Hawaiian people have begun a process of recovery of their traditional practices and a rediscovery of their historic roots. This process has brought about a keen awareness of inherent rights. Native Hawaiians have taken an active role in asserting their indigenous rights in legislative bodies, the courts, in the streets and on the land. Such activism has brought about a positive response by the U.S. government. On November 23, 1993, President Bill Clinton signed a joint resolution offering "an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai`i." (Senate Joint Resolution 19, PL 103-150 107 Stat. 1510). In that resolution, the U.S. Congress sets forth, inter alia: ..... Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the conspirators, described such acts as an "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress," and acknowledged that by such acts the government of a peaceful and friendly people was overthrown; Whereas, President Cleveland further concluded that a "substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair" and called for the restoration of the Hawaiian monarchy; ..... Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum; (Senate Joint Resolution 19, 103rd Congress, 1st Sess., Pub. Law 103-150) The State of Hawai`i has cited on several occasions the same sordid history of illegality, of theft, of deceit and disgrace in the actions taken to deprive a people of their independent nationhood. (House Concurrent Resolution 147, 1991 Legislature; Act 359, 1993 Legislature) In 1993, after receiving from Hawaiian organizations, demands for greater State commitment to address the historical injustices, and petitions by some to be treated as the representative of the Hawaiian people, or as the repository for the Native Hawaiian land assets, the State of Hawai`i established the Hawaiian Sovereignty Advisory Commission, appointing Native Hawaiians to advise the legislature on how to proceed in addressing the subject of Hawaiian sovereignty as regards the native people. That commission went throughout the islands to hear directly from the native people. The people proposed an immediate process to begin redress and to form a governmental structure. They suggested an initial plebiscite question to determine if we should hold a convention of elected delegates to propose a form of government. If the response is affirmative, the second stage would be to elect delegates and begin this convention to formulate the governmental form. The State responded the following year by renaming the body the Hawaiian Sovereignty Elections Council. HSEC was to be independent in carrying out a fair and impartial process to determine the will of the Native Hawaiian people to restore a nation of their own choosing. The legislature agreed to fund 1/2 the cost of what would eventually be called the Native Hawaiian Vote. The Office of Hawaiian Affairs, a self governing corporate body independent of the executive and other branches of the state, governed by nine Native Hawaiian Trustees elected by Native Hawaiians agreed to match the State's $900,000 fund. Native Hawaiians of any citizenship or residence were eligible to register in the Native Hawaiian Vote. Current or prior criminal convictions, or incarceration were no basis for denial from voting. The only limitation was an age requirement of 18 years by September 2, 1996, the scheduled date for the results to be announced. On July 1, 86,000 ballots were sent throughout the world, asking, Shall the Hawaiian People elect delegates to propose a Native Hawaiian government? Voters had until August 15 to return these ballots. Approximately 81,598 ballots were received by voters and from that number, approximately 33,000 (40%) were returned. 30,423 returned ballots were valid (Those determined invalid were generally because of the voter's failure to sign the statement affirming their qualification to vote.) and from the valid ballots, 22,294 (73.28%) voted YES and 8,129 (26.72%) voted NO. Based upon this positive response, a convention of from 100 to 200 delegates, meeting over a year, interspersing their discussions with consultations with the Native Hawaiian people, is planned. At the end of the convention, a form of governance will be proposed for ratification by the people. If ratified, the result will form the basis for discussion and negotiations with the State of Hawai`i and the U.S. government for Native Hawaiian governance over political, economic, social, educational, land and resources, cultural development and other areas. There are no limitations as to what can be considered, debated and concluded in this convention or within the Native Hawaiian communities. The results could range from securing the right of passage along all ocean fronts to the rights of Native Hawaiians to conduct themselves as citizens of an independent state. At this stage, there can be no accurate predictions of the future outcomes. This Native Hawaiian Vote is just the beginning. It opens the door for wide participation by the indigenous people to guide the process in which their rights as Hawai`i's indigenous people are to be expressed. It is a cautious process, not selecting at this point, any model of governance or particular relationship with the State of Hawai`i or the United States of America. It simply puts the question of calling representatives of the people together to confer and make proposals for the people. Given Hawai`i's particular history, first as an independent State, later the subject of U.S. military intervention, followed by annexation as a territory of the United States, a period of American resocialization of the local population and transmigration of U.S. citizens, culminating in its admission into the U.S. union as a State, the question of self-determination, both in its internal and well as its external dimensions comes to the forefront. The Hawaiian Sovereignty Elections Council has made it very clear that this present Native Hawaiian Vote is not the exercise of self-determination as contemplated and safeguarded in international law, including those explicit statements of rights of non-self governing and colonial territories expressed in relevant articles of the United Nations Charter and its several resolutions and conventions. To disabuse the international or the U.S. political community of the mistaken assumption that this is the Hawaiian exercise of self-determination, HSEC has publicly disclaimed this plebiscite as an act of self-determination consistent with international law. (See exhibit a) That disclaimer had been submitted to the United Nations Working Group on Indigenous Populations at its 1995 session. A similar disclaimer is stated on every ballot distributed to registered voters. Eventually, it is anticipated, the debates at the Native Hawaiian Convention will indeed shed light on the broader question of external self-determination. That is a chapter of the Hawai`i story not yet opened by this Native Hawaiian Vote. The process in which the Native Hawaiian Vote was taken, the acknowledgement by the United States of its violation of the sovereign integrity of the Kingdom of Hawai`i, and the cooperation and support of the State of Hawai`i and the Office of Hawaiian Affairs are significant in domestic as well as international law for it reflects a positive step forward in the practical development of indigenous peoples' rights. This is certainly not the end of the story. It appears more like the very beginning of a new chapter in the progress of human rights of the Native Hawaiian people. Challenges to the Hawaiian Sovereignty movement abound in many areas. The legislation creating the Hawaiian Sovereignty Elections Council calls for that council's termination by December 1996. The State's governor has called for an extension of that council as the logical consequence of the vote, but he admits its a legislative decision. Members of HSEC have themselves taken the initiative to form a not-for-profit corporation, Hþ Hawai`i, to carry on the work. Hþ Hawai`i is now working with HSEC to coordinate a transition of the work and preparing its budget to carry out the election of delegates. Currently, Hþ Hawai`i is without an office space, equipment, personnel or funds. Members of the HSEC and its staff are acting as volunteers to see that the momentum for a Hawaiian Sovereignty convention is maintained. I hope this brief document adequately introduces you to an important part of the Hawaiian Sovereignty movement. Should you need further information, please do not hesitate to contact the Hawaiian Sovereignty Elections Council, P.O. Box 3290, Honolulu, HI 96801-3290, 1(808) 587-2834 (tel), 586-0169 (fax), World Wide Web at http://planet-hawaii.com/hsec, E-Mail at tlani@aloha.net or this writer. PART II: Questions and Answers Question 1: This process is promoted as one independent of State control. Yet it is funded by the State legislature and by the Office of Hawaiian Affairs, a body created out of the State Constitution. Doesn't such sources of funds mean State control? Isn't this a violation of international law? Answer: International law as regards decolonization as well as the emerging law on indigenous rights do not prohibit nor discourage States from providing resources in order for a people to assert their rights. In fact, the relevant documents reflect that the States are urged to provide all necessary resources and technical assistance in support of colonized and/or indigenous peoples. The U.N. Charter is clear. The metropolitan government, the U.S. in the case of Hawai`i, is charged with accepting as a sacred trust the obligation to promote to the utmost . . . the well-being of the inhabitants and to this end to promote constructive measures of development. Chapter XI, Article 73, United Nations Charter. Other relevant resolutions call upon states to provide all necessary resources for the exercise of self-determination. (See also General Assembly resolution 1514(XV) of 14 December 1960; Declaration on the Occasion of the Twenty-fifth Anniversary of the United Nations, adopted by the General Assembly in resolution 2627 (XXV) of 24 October 1970; Program of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, resolution 2621 (XXV) of 12 October 1970) In international law on indigenous peoples' rights, the premier document is the International Labor Organization's (ILO) convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries. That convention calls for governments to play an active role in developing with the indigenous people, action to protect their rights. Article 2 It calls for special measures to be adopted for safeguarding indigenous peoples institutions, property, culture, etc. Article 4 Governments are to establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. Article 6 1. (c) The current draft Declaration of Indigenous Peoples Rights of the U.N. Working Group on Indigenous Populations, at Article 38, also calls for access to adequate financial and technical assistance from States. The Organization of American States and the Government of Guatemala are now considering defining the rights of indigenous peoples but have not yet finalized such rights. In each of their drafts, governments are called upon to assist in the indigenous peoples pursuit of their political, economic, social, cultural and spiritual development. OAS Inter-American Commission on Human Rights OEA/Ser/L/V/II.90 Doc. 9 rev. 1, September 21, 1995, Draft of the Inter-American Declaration on the Rights of Indigenous Peoples; The Government of Guatemala and the Guatemalan National Revolutionary Unity's Accord on the identity and Rights of Indigenous Peoples Thus, international law, in both the area of decolonization and indigenous peoples' rights, call upon governments to be active in the promotion of self-governance and the protection of rights, even to the extent of providing the necessary resources in order to achieve such results. Furthermore, the argument that government funds mean government control does not necessarily hold true. There must be considered additional issues such as the conditions attached, if any, to funds, the degree of independence the recipients are given, and most importantly, the individual integrity of those actually charged with the execution of the program. In the Hawai`i case there has been no instance in which either the State or OHA controlled this process. In fact, the State has accepted the direction set forth by the Native Hawaiian public as expressed by the HSEC. The qualifications for voting exceed all state laws on voting and the counting of the ballots is independent of state oversight or control. Question 2: But is it not true that this process is at the initiation of the State? Isn't it true that the members of HSEC were initially appointed by the State's Governor? Answer: The legislation creating the Hawaiian Sovereignty Advisory Commission is indeed a State legislation. But it is legislation in response to the overwhelming demand by the Native Hawaiian people themselves for State participation. It is also a legislative response to demands for recognition of individual organizations as representatives for Native Hawaiians. For example, in the year 1993 and before, several organizations approached the legislature demanding the transfer to them of lands originally belonging to the Hawaiian Monarchy. Several organizations proclaimed themselves the voice of the Native Hawaiian people or being the Hawaiian nation itself, one in particular sending its "Prime Minister" to the U.N. Working Group on Indigenous Populations. The legislature, attempting to grapple with the situation, created an advisory commission in 1993, whose membership consisted of appointees selected by the Governor from nominations of Hawaiian organizations. These organizations reflect the gamut of native Hawaiian views on indigenous rights and sovereignty. That Hawaiian Sovereignty Advisory Commission, in advising the legislature, first turned to the people for participation and direct consultation, holding hearings throughout Hawai`i and in the continental United States. Only after those hearings did it summarize the sense of the people and report to the legislature. The recommendations from that report formed the basis for the current Native Hawaiian Vote. The HSAC was subsequently converted into the Hawaiian Sovereignty Elections Council, no longer to carry out the role as advisor to the legislature, but to implement the program of conducting a plebiscite which it had earlier recommended. Question 3: Legislation creating the HSEC provides that nothing coming out of the convention shall alter or amend the constitution, statutes, rules or regulations of the State. Isn't this a clear indication that the process is merely a sham without any commitment by the legislature to give force to this process? Answer: No. The legislative commitment is clear and at this point limited to the support of a process. It is not willing, nor would it be able, however, to simply turn over its legislative responsibilities to a convention. We must recognize that this Native Hawaiian Vote and convention process does not exist in a vacuum. There are certain realities which the legislature must operate within, one of which is its constitution from which it derives its authority. That constitution has delegated to the legislature the power to legislate, not the power to exceed the constitution by empowering others to legislate. To exceed the constitution would of course be unconstitutional and any such act would be stopped. Therefore, the legislative proclamation that what emerges from the Native Hawaiian convention will not result in binding legislation falls squarely within the responsibility of the legislature. This does not mean that the convention results will go nowhere. What emerges from the convention will have to first be ratified by the Native Hawaiian people, then used as the basis for discussions with the Office of Hawaiian Affairs, the legislature and the U.S. government. Out of that full process, we may very well see constitutional, statutory, or rule changes. Question 4: Does this process move too fast for a people under a hundred plus years of colonization? Shouldn't it wait until people know what they are voting for? Is the State trying to rush the decision of the Native Hawaiian people? Answer: Members within the commission itself disagreed as to the proper time frame in which this process should take. Hearings were held throughout the islands and the resounding call was for an immediate beginning by casting the question now before the people. Generally, people said they had been deprived of this opportunity for over a hundred years and so were not willing to set off this question any further. The legislature has since followed this expression of the people. It would be unfair to suggest, therefore, that it is the legislature which is setting the timetable. The people also determined that the initial question of calling for a convention did not require a full understanding of the various models but simply whether or not we should begin to meet and open discussions. The time for selecting a model of sovereignty would be made in the future, at which time the Native Hawaiians will have an opportunity to obtain a clearer understanding of their full rights. Question 5: Considering Hawai`i's history, the incursion by the United States in 1893, the method of annexation in 1898 and the coming into the union of the United States of America in 1959, it becomes apparent that Hawai`i has not exercised self-determination in accordance with the current appreciation of international law. This Native Hawaiian Vote falls short of the right to self-determination. It is limited only to the indigenous people of Hawai`i which, by definition excludes many who descended from nationals of the Hawaiian Kingdom, it does not provide specific choices of independence, free association or integration, the U.S. military maintains a strong presence in Hawai`i while this vote is being taken, etc. Why should the Native Hawaiian people participate in this vote when it does not accord them their full exercise of self-determination? Answer: Achievements in human rights and fundamental freedoms are made, not in singular accomplishments but more often achieved incremental. We recognize two major areas of rights which have not been sufficiently addressed in Hawai`i. The first is the right to decolonization as suggested in your question. The second is the rights of indigenous peoples, not yet as clearly defined in international law but conceded to by domestic laws of the United States of America and the State of Hawai`i. Must we tie both rights into a singular accomplishment and wait until both are afforded the people of Hawai`i? Or should we proceed incremental, taking the windows of opportunity as they appear before us? It is my view that the development of human rights in practice is usually incremental and that a people should exercise each opportunity to advance as they occur. Generally, it is such increments which eventually bring about greater advances. For example, emancipation of the slaves in the United States occurred in the 1860s, a hundred years before the next wave of equal rights in voting, education, access to public facilities and simply sitting in the front seats of a bus. To have asked the slaves to remain slaves until all civil rights were extended to them, until they could obtain all rights in a singular accomplishment, was so obviously foolish that it was not even considered! Question 6: What you say is well and good, but is it politically realistic? What is to stop the United States from misrepresenting this Native Hawaiian Vote as the exercise of the right to self-determination in the decolonization sense? What guarantees are there that the international community will not be seduced into this claim? Answer: Should we determine our exercise of human rights based on the speculation on how another country may react? If we did so, people whose rights are oppressed would never be able to take the first step toward emancipation because they would be frozen into a state of uncertainty based on the speculation of how another may try to misrepresent that step. While frozen in that state, their condition of oppression continues. The only reasonable course to take is to prepare as much as possible to meet and overcome foreseeable possibilities of misrepresentations, yet to forge ahead in the exercise of rights as the opportunity arise. To this end, HSEC has issued a declaration in February, 1994, stating that the Native Hawaiian Vote process "is not sufficient or adequate to constitute a full expression of the rights of self-determination under international law." This position has also been introduced to the United Nations Working Group on Indigenous Populations (Intervention by the Institute for the Advancement of Hawaiian Affairs, Agenda Item No. 5, Development in the exercise of Hawaiian Self-Determination, 24 July 1995) to aid in disabusing the international community of the belief that this is our exercise of self-determination under international law. (see exhibit a) Of course, those who want to ignore or avoid the fact that this definitive position statement exists will do so. Question 7: The Unrepresented Nations and Peoples Organizations (UNPO) sent a three men investigation team to Hawai`i, held hearings, and reached a preliminary conclusion that urged the balloting process be stopped and questioned the integrity of the ballot. What response has HSEC to UNPO's conclusions? ANSWER: The UNPO investigation was neither impartial, independent, nor complete. UNPO timed its arrival in Hawai`i on the eve of the ballots being sent out, a time in which it could obtain maximum local news coverage with minimum effectiveness. It arrived with a view that its member organization, Ka Lahui Hawai`i "represented the Hawaiian peoples" notwithstanding the fact that many organizations make similar claims and the Hawaiian people have never delegated any such organizations to make such international representations on their behalf. That UNPO member is in adamant opposition to the vote. UNPO's investigative methods failed any standard of impartiality. It aligned itself with the opposition to the vote, established a temporary office in their midst, and proceeded to hold court over the Native Hawaiian people. It announced it's arrival in Hawai`i to HSEC days before while remaining in communication with the opposition for over a year. Before HSEC was able to meet extensively with UNPO, two of its members left Hawai`i. HSEC requested UNPO respect developing standards for investigation of indigenous affairs by lawyers, sociologist, anthropologists, museum specialists and others who make it a practice to conduct investigations and write reports of indigenous peoples. HSEC asked that UNPO's preliminary report be reviewed by HSEC and that HSEC be given an opportunity to present its comments and any opposing view of the report's findings and conclusions, that the final report be made freely available to the Native Hawaiian people and that the introduction of the final report to international meetings be made only upon sufficient notice to HSEC to afford an opportunity to comment on said report before such international bodies. UNPO has failed to respond to these points and before leaving Hawai`i, released preliminary conclusions, siding with its member organization. To date, UNPO has not released its final report. Question 8: Hþ Hawai`i, this newly created organization to carry out the results of the Native Hawaiian Vote, is it controlled by the State? How does it operate? Who can become its members? How can others participate? Answer: The majority of the members are formally associated with HSEC. The organization has recently determined to open its membership to anyone, of any racial extraction, who supports the purpose of the organization. There is a $10 membership fee. Hþ Hawai`i is recognized by the IRS as a 501(c)(3) organization, exempt from taxation. The only connection the organization has with the State of Hawai`i is the fact that it is registered with the State as a corporation. A plan for funding may include approaching the State Legislature as well as the Office of Hawaiian Affairs for contributions. Question 9: Several organizations banded together as a coalition against the Native Hawaiian Vote calling upon Native Hawaiians not to participate but, instead, to send to this coalition, their ballots. Those ballots were to be submitted to the United Nations in November 1996, according to the organization Ka Lahui Hawai`i. What has been their response to the results of this vote? Is their response correct. Answer: That coalition has declared a victory for themselves against the vote because the majority did not participate. This is a new version of the claim to representing the "silent majority" which can neither be proven or refuted. They have since avoided any mention of the number of ballots they collected as a result of their campaign. HSEC has invited them to come forward and count those ballots but they have not responded. A 40% voter response in a mail-in voting process is actually an excellent response in comparison with other such votes. The organization Ka Lahui Hawai`i which claims it is already a sovereign Hawaiian government with Mililani Trask its prime minister had less than 1,000 members cast their ballot in its 1990 elections.