Here are my initial response to a question on what is my response to the Department of Interior’s recent announcement that it would hold hearings in Hawaii as a first step to consider reestablishing a government-to-government relationship between the United States and the Native Hawaiian community.”
To begin, one issue should be the the matter of:”a first step to consider reestablishing a government-to-government relationship between the United States and the Native Hawaiian community.”
i) there was never a “government-to-government relationship between the United States and the Native Hawaiian community.” Rather, our history reflects that there were nation to nation relationships founded upon treaties between Hawaii and the United States, establishment of embassies between our two countries, an official state visit by King Kalakaua to the United States in which he addressed the U.S. Congress, said to be the first head of state to have done so, etc. Thus, there is no “reestablishment” to be entered into.
ii) To succumb to the suggestion that the prior relationship was one between the United States and the Native Hawaiian community would effectively elevate the U.S. government as a superior and thus sublimate the Hawaiian community as an inferior, a people who is not organized, has no independent nation of its own as it deals with the United States, and thus relegate the Native Hawaiian people as an unorganized people who coincidentally reside within the territory of Hawaii now claimed by the U.S. as its proper possession. It would become a rewrite of history to satisfy the U.S. national conscious to equate the Native Hawaiians as part of the grand U.S. manifest destiny justification to stretch across the Americas.
The DOI announcement states: The purpose of such a relationship would be to more effectively implement
the special political and trust relationship that currently exists between the Federal government and the Native Hawaiian community.
This is a curious admission by the DOI that there is a special political and trust relationship that currently exist. However, it misconstrues that relationship. The political relationship is that of an aggressor country which, through a “stepped transaction”, i.e., overthrow of the constitutional sovereign, support of a puppet government (Provisional Government), convert that puppet government to another puppet government (Republic of Hawaii), “cede” the national lands, citizenry, and sovereignty to the U.S. government in a proposed ‘treaty of annexation’, and has claimed jurisdiction over the subject of its aggression.
i) In 1974, the United Nations General Assembly adopted by consensus under GA Resolution 3314 the Resolution on the Definition of Aggression including the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or any military occupation, however temporary, resulting from such invasion or attack”. That resolution declares, “No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.” Is this the special political and trust relationship that currently exist between the U.S. and the Native Hawaiian community?
ii) The charter of the United Nations adopted in 1945 and subsequently ratified by the Senate of the United States under Article II of the Constitution of the United States, included a provision for a “sacred trust relationship” between “administering authorities” and the people of non-self governing territories to develop self-government. The United States confessed to its possession of Hawai`i as a non-self governing territory under the U.N. Charter Chapter XI regarding non-self governing Territories in 1946 (GA Reso. 66). The development of self-government has been defined as allowing the non-self governing people of the territory, to be given three choices of self-governance, independence, free association, and integration with an independent State. Principle VI., U.N. G.A Resolution 1541. The U.N. General Assembly has also said, “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 colour, in order to enable them to enjoy complete independence and freedom.” G.A. Reso. 1514 on Granting Independence to Colonial Countries and Peoples. Is this the trust obligation the DOI is speaking of?
The DOI’s extensive series of public meetings and consultations is to, “determine whether the Department develops a formal, administrative procedure for reestablishing an official government-to-government relationship with the Native Hawaiian community and if so, what that procedure should be.” But to make such a determination, and to ask for public meetings and consultation, is it not important to clarify under what “trust obligations” the U.S. will have such admin procedures address? Which trust obligations, or is the “trust obligation” to be a moving target such that people are to speak of administrative procedures but uncertain as to what trust obligations they are addressing?
The DOI Secretary, Sally Jewell has just learned in the last year from a visit to Hawaii of the “unique
history and the importance of the special trust relationship that exists between the Federal government and the Native Hawaiian community” and thus responding to requests from “not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.” Yet, this does not clarify the precise trust relationship(s). Is she denying those trust obligations which arise out of the U.S. submission of Hawaii as a non-self governing territory in 1946 under GA Reso. 66?
The announcement describes some of the more than 150 domestic laws that “specifically recognize and implement this trust relationship” including the Hawaiian Homes Commission Act,the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act. The announcement continues, “In 1993, Congress enacted the Apology Resolution which offered an apology to Native Hawaiians on behalf of the United States for its role in the overthrow and committed the U.S. government to a process of reconciliation. In 2000, the Department of the Interior and the Department of Justice jointly issued a report on the reconciliation process that identified self-determination for Native Hawaiians under Federal law as their leading recommendation.”
Here we see the DOI attempt to sublimate the issue under a domestic jurisdiction and avoids the international trust obligations. In the 1900 decision of the U.S. Supreme Court in the Paquete Habana case, 175 U.S. 677 (1900) the court noted:”International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.” Article VI of the United States Constitution very specifically requires that all judges of all courts are obligated to recognize treaties adopted pursuant to the Constitution as part of the law of the land. Try as it may, the U.S. can not escape the international obligations it is subjected to.
As to its specific questions:
* Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community? No, the Secretary should first clarify with precision which of those trust obligations to which the U.S. government is under, both under international as well as domestic law, and only upon such an identification of such trust obligations, obtained in consultation with the Native Hawaiian community and those who consider themselves nationals of the Hawaiian nation, should administrative rules be propounded by the DOI.
* Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship?
The Native Hawaiian community has already taken steps to identify its form of governance. That process has not been completed by the Native Hawaiian Convention. The DOI should assist in seeing the process to its conclusion by providing the necessary funding to bring about a conclusion of the convention, to provide for a process of ratification of the form(s) of governance selected by the voting constituency, and assist in the support of the establishment and development of said form(s) of governance. There should be no superior position taken by the DOI or any alien jurisdiction over this Native Hawaiian process other than to provide all necessary resources to the formation of such governmental form(s).
* If so, what process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
The process has already begun and is now held in abeyance as a result of the lack or refusal of the State government and the Office of Hawaiian Affairs, to fund it to completion. That process should be funded to conclusion.
* Should the Secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a
process is consistent with Federal law?
No, the State, including the Office of Hawaiian Affairs, have shown itself without the political will to allow the process to be completed. There are too many conflicting interests by the State and OHA to be able to rely on these two entities to follow-through, as the recent history will show. The Federal government has not done its part in supporting this process, yet it has been the primary actor in the deprivation of the continuing exercise of self-determination by the Hawaiian community. Any support given by the DOI should not be limited within Federal law or policy as this would itself raise the specter of a conflict of interest. All governmental entities and all funding sources should simply provide the necessary financial resources for this process to reach fruition, and not interfere or set limits.
* If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
If a form is selected in which the Native Hawaiian community elects to be recognized under the laws and polices of the United States government, as an indigenous nation within the jurisdiction of the United States, the government-to-government relationship should give special consideration to the unique history of interference by the United States to the independent nation of Hawaii, the nation from which its origins derived from the Native Hawaiian people. It should not simply follow a “cookie cutter” approach of treating this “government” as it has done with other indigenous nations within the 49 States of the U.S. union.
a hui hou,