Thanks for coming ... between the holidays and da kine and all of that...
The Nation of Hawaii and the Office of Hawaiian Affairs are both co-sponsors in this event. We're actually doing a four-island in two-day talk ...
We just came in from Kaua'i, it was a good showing. But there's a lot of things that have sparked the independence movement in Hawaii. And, well, one, and the most important, the most important thing that happened to us, was 11 years ago, same day, December 28, almost the same time, that our guest speaker was here. There's a lot I'd like to say about him, he's actually been the only international lawyer I know who's been on the front lines across the world working with indigenous and native people all over the world.
So, once again I'd like to thank especially the Office of Hawaiian Affairs. You know for us there's been an independence movement for a long time, but we always got shut out, we felt that we were always getting shut out, it could be attitude both ways but we also felt too that that the independence movement was always shortchanged financially where promotions would go one way and not the other way so maybe this is a breakthrough...and the independence side can break through and actually start working with each other, working with the Office. You know the Office is also sponsoring the Hawaiian Coalition which is going on, they have talks and they're talking about sovereignty as well. But really this initiative is the beginning of an all-year initiative...next year what we'd like to do is take the video, edit it down and go throughout the islands in 2005 and just get this message out.
We need balance on the playing field and we're not having that. This is why I'm glad that the Office actually... it was Clyde Namuo and several of the trustees that actually said "We'll, we got to do it we're talking about the same thing and we have to get out and educate the people." And the Nation felt that it was more so important that we go back and look at the Apology Bill again because that is the foundation that even sparks and puts forward the Akaka Bill, not only independence. So right now it's education time let's hear it from somebody who eleven years ago was way ahead of his time ... and it's finally coming to a point where each one of us who is Hawaiian is going to have to make a choice. But me, as a Hawaiian, I don't want to be pushed into what I don't want or what I don't know. I like to hear from different views, different people, experts. which Iive done over the years. I've heard a lot of different people speak.
There's only two sides, independence and being... that's it, there are no other alternatives. Some how some way you folks are going to have dig way inside your na'au and actually take the information and hopefully ... too and choose the side ....
So without further ado, I'd like to introduce you to our guest speaker, Professor Francis Anthony Boyle.
I would like to express my thanks to my good friend Bumpy Kanahele and the Nation of Hawaii for inviting me, and also to the Office of Hawaiian Affairs for sponsoring my lectures here in Hawaii.
As you know in the 108th congress, the Akaka legislation did not pass but it appears that it will be re-introduced into the new congress probably along the lines of the Akaka-Abercrombie legislation we have now. And, just recently Senator Inouye has said he thinks it will pass in the 109th congress. Well, with all due respect to Senator Inouye, I don't believe he is a prophet yet.
But, what I want to do here is to go through the Akaka-Abercrombie legislation as it died in the current session of congress on the assumption it will be, as promised, introduced into the new session and give you my assessment of what it means for Kanaka Maoli. Understand it's your future that is at stake here, not mine. All I can do is come out and give you the benefit of my analysis and interpretation as I see the legislation. And then you will have to decide what to do.
What struck me right at the beginning of S344, that's the Senate version introduced by Senator Akaka and then the House version, HR665, by Congressman Abercrombie, there are slight differences which I will comment on later. But what struck me right at the beginning was it says "...provide a process for recognition of the Native Hawaiian governing entity." And they used the word 'entity' notice they did not use the word 'government.' They're not going to give native Hawaiians a government and that's what they're going to give you is an entity. Well, I expect many of us here are trying to work for peace in the Middle East and one thing that is clear is that when Arab governments or states or people wish to express disrespect for Israel, instead of calling it the state of Israel or the government of Israel, they call it the Zionist entity. It's a term of disrespect, not respect, to say we're going to give you an entity.
It'd be' certainly there is no way anyone can promote peace and reconciliation in the Middle East by referring to Israel as nothing more than the "Zionist entity" and I'm not exactly sure then how the United States Congress is going to promote peace and reconciliation with Kanaka Maoli by giving you a Kanaka entity. So that did strike me right off the top and indeed it seems pretty clear this is very carefully drafted by lawyers who knew exactly what they were doing and how they were going to do it.
In the Findings clause, you'll note, they say in the Akaka draft quote "Native Hawaiians, the native people of the Hawaiian archipelago that is now part of the United States". Well, isn't that the issue? The United States government says the Hawaiian Archipelago is part of the united States but is it legally part of the United States was it lawfully acquired by the United States? The Apology Resolution already said "No," and you have my detailed analysis of the Apology Resolution back on the table there. I'm not going to go back through the Apology Resolution at this point. But we're now at the next stage, remember, the Apology Resolution called for reconciliation between Native Hawaiians and the United States...and apparently now Akaka-Abercrombie is their definition of what this reconciliation and settlement of claims, final settlement of claims, is all about.
This same Findings clause later continues with a boldface lie saying Native Hawaiians are indigenous native people of the United States. Well, of course that's preposterous ' Native Hawaiians are the indigenous native people of Hawaii and the Kingdom of Hawaii, not the United States. The United States is 2600 miles in that direction according to my itinerary coming out here from Los Angeles last night.
International lawyers, and indeed the World Court and others, have what's known as the "Blue Water Rule." And the Blue Water Rule is quite simply when you have a metropolitan state separated by an ocean from another territory that they claim to be their own, the truth of the matter is that other territory is a colony, subject to the UN decolonization resolution and, as you know, and indeed as my friend Kekuni Blaisdell has argued quite successfully so for many years, the United States illegally removed Hawaii from the Article 73 list of colonial territories that should have been decolonized and have refused to report and never applied the decolonization resolution to Hawaii, in violation of its obligation under the terms of the United Nations Charter that is ... Hawaii and many of the other colonial territories that it has now and still holds, separated by 'blue water' from the continental United States.
Just because the United States says Hawaii is now part of the United States doesn't mean it's so as a matter of international law. At one point, France annexed Algeria and then determined by law that Algeria was a département of France, legally equivalent to Paris, which is also a département of France. And yet today, Algeria is an independent nation state and a member of the United Nations organization. No one accepted the attempt by France to annex and "internalize" Algeria. And these same principles of international law surely apply to Hawaii.
Now, moving through the Abercrombie legislation, it talks about treaties between the United States and the Kingdom of Hawaii, most of which were violated by the United States of America. Here, mostly importantly, the Treaty of Friendship, Commerce and Navigation of 1849 that guaranteed, the United States guaranteed, the Kingdom of Hawaii perpetual peace and amity ' perpetual peace and amity. And that treaty was never terminated by either party. So technically as a matter of law, it still exists. Today, the United States is still supposed to be promising the Kingdom of Hawaii and Kanaka Maoli perpetual peace and amity. And I should point out, that treaty, and all the other treaties that are violated, are the supreme law of the land under Article 6 of the United States Constitution. So they violated their own constitution as well.
Now, there was an interesting result when Keanu Sai and I sued the United States in the United States Supreme Court under the original jurisdiction clause in 1998 on the 100th anniversary of the illegal annexation of Hawaii by the United States. Keanu and I pleaded all of these treaties, everyone of them, and we demanded that the United States Supreme Court order the United States federal government to restore the Kingdom of Hawaii and, in addition, to pay reparations for all the harm that have been inflicted on the Kingdom of Hawaii including the violation of numerous treaties.
What happened in this lawsuit surprised even me. The justices of the United States Supreme Court met three times and eventually they rejected the entire lawsuit, refused to let us even file the lawsuit, and returned our filing fee which is almost without precedent, they always want money to pay those bills. Why did they return our filing fee and all of our documents? And I had about a 45-minute conversation, argument, call it what you want, with the Deputy Clerk of the Court in which he said well, they had him call up the State Department and the State Department that the United States does not recognize the kingdom of Hawaii and therefore the Supreme court has decided not to let us even docket our papers and accept our fee. The reason is that there is a black letter rule of US constitutional law that non-recognized sovereigns cannot have access to United States courts.
Now what I found curious about that is that apparently they were taking the position, the Supreme Court justices, that the Kingdom of Hawaii was a non-recognized sovereign state. In other words, we were a sovereign state but we just weren't recognized by the State Department. That's a very interesting result in that proceeding. And I do want to commend Keanu Sai for doing so much hard work to get this very important and precedential proceeding and ruling by the United States Supreme Court to commemorate the 100th anniversary of the illegal annexation of Hawaii.
Now, the Akaka legislation then continues by conceding yes by means of these treaties the United States recognized the independence of the Kingdom of Hawaii. That's correct. And as I pointed out they also guaranteed perpetual peace and amity, that means forever. They afforded full diplomatic recognition to the Kingdom of Hawaii and as I said that treaty of peace and amity was never terminated by either party, it was never formally terminated. It is still the supreme law of the land in the United States under the United States Constitution. And this is where Keanu and I tried to argue in the United States Court, if they had docketed our papers, we would have been there arguing this point. But it raises the issue then that the Kingdom of Hawaii itself, as a state, was never properly terminated. In other words, it still exists legally. There are still treaties, the Kingdom of Hawaii is still a party to these treaties, not only with the United States but also with a fairly large number of other states.
You recall your kings and your queen were very foresighted in establishing diplomatic relations and treaty relations with a large number of other states at the time. Now, the haoles said "Oh, this is an unnecessary expenditure of funds" but your kings and your queen understood that this would be a way to further solidify the existence of the Kingdom of Hawaii as a state under international law and practice. And we have to keep that clear. Later on, I'll make a distinction between a state and a government. In international law, that 's a critical distinction ' a state and a government. So today I think we have our state, it's the Kingdom of Hawaii. We don't have a government but we do have a state and we have treaties.
In the' Akaka then moves on by going back to the Apology Resolution concessions, it says yes again, the Kanaka Maoli never relinquished their claims to inherent sovereignty ' that's right ' as a people over their lands either by the monarchy itself we know that we never did or plebiscite or referendum we never validly surrendered any of our rights to the United States of America. and notice they use the word sovereignty, you have the soveriegnty. They conceded that in the apology resolution. The sovereignty is that of the Kanaka Maoli not the untied states indeed the united states from the perspective of international law has a of circa 1893 up til 1898 for sure was and still is nothing more than a belligerent occupant of Hawaii. It invaded, it conquered and it intended to annex but at all times it remained a belligerent occupant subject to the laws of war and the laws of belligerent occupation. And what does that mean, occupation even annexation, cannot change sovereignty. The sovereignty resides in the hands of the displaced sovereign, which in this case is the Kingdom of Hawaii and the Kanaka Maoli people. And they simply cannot go out and annex Hawaii and hold it unto themselves. That sovereignty is still in the hands of Kanaka Maoli and it still resides within the Kingdom of Hawaii and basically they do concede that in the Apology Resolution and the Akaka draft bill.
Now, they then move on in these Findings clauses and point out that Native Hawaiians give expression to their rights as native people to self-determination, self-government and economic self-sufficiency. Notice here they see self-determination under international law and practice. The Kanaka Maoli have a right of self-determination. What does that mean? The Kanaka Maoli determine for yourselves what is your future. Do you want to restore that Kingdom of Hawaii? Do you want to become a state of the United States of America? Do you want something like Puerto Rico has in its relations with the United States as a commonwealth? But the question of self-determination is for you to decide, not them. And the Kanaka Maoli, as even the Apology Resolution and the Akaka legislation concede, have never had the opportunity to validly exercise your right of self determination in accordance with international law and practice. And they're conceding that right of self-determination here.
Now, you might say "Well, why are they giving us all these concessions? Aren't they doing us a favor?" And my reading of the legislation is No. The reason they're making these concessions is so that at the end of the day, assuming Akaka passes into law, they can then say "Well, now the Akaka legislation, this is their exercise of self-determination and they're going along with this procedure for the Native Hawaiian entity and they are now going to exercise their right of self-determination and their inherent sovereignty within the context of our entity that we are giving them that we will not even bother to call a government. We're not even going to give the Native Hawaiians a government, we're just going to give them an entity and that's their sovereignty, that's their self-determination and then we'll stop at that. That can be their choice."
Now they also point out of course the Native Hawaiians do provide healthcare, education, employment, children services, language etc, etc. This is, or, the way you build a state or rebuild a state or restore a state is from the ground up, not the top down. No one's going to give you a state, especially not the Untied States of America. You have to build that state from the ground up by providing basic services to your own people.
Look at the way the Palestinians have done this in occupied Palestine. They do not rely on the Israeli occupational authorities to provide any services to their people because they know they're not going to get it. So the Palestinians have to go out .. education, healthcare, nutrition, training etc. to their own people living under a very brutal military occupation regime but they're building it. They're building their state from the ground up, not the top down. And you Kanaka Maoli have all the elements and the rudiments to do this ' you are in the process of doing this. You just have to do more and do it better and be more organized and more effective.
Later on, the Akaka legislation then says quote "this act provides a process within the framework of Federal Law for Native Hawaiian people to exercise their inherent rights." Well again, that is the agenda here ' they want to divert and limit all of your rights of self-determination, sovereignty, your right to the restoration of the Kingdom of Hawaii ' all within this process that will lead to nothing more than a Kanaka entity, and all determined by United States Federal Law. You'll note there's no reference at all here to international law except the treaties which they've already conceded they have violated.
But, rather than specify well what are your rights under International Law, they try to limit them to federal, United States Federal Law. Now, of course from the perspective of International Law, not United States Federal Law, if you have a violation of these treaties, and Keanu Sai and I tried to argue this at the US Supreme Court and in the papers we filed it's quite sensibly argued, I pointed out that the appropriate remedy for treaty violations is restitution even as recognized by the World Court. And I pointed this out in my analysis of the Apology Resolution. And by the Latin terminology restitutio in integrum - return the situation to the way it existed before the treaty violation.
In other words the United States has an obligation to restore the Kingdom of Hawaii, to return the situation to what it was when it signed that 1849 Treaty of Friendship, Commerce and Navigation and promised the Kingdom of Hawaii perpetual peace and amity.
That is the real ... under international law and practice, not setting up some bogus little entity, and then as we'll see, has very little rights to begin with and powers and yet they will then claim that this is your final exercise of self-determination and sovereignty within our little straightjacket - the final solution for the Kanaka Maoli. That's what they have in mind here.
Now, they say they will give you a council, Native Hawaiian interim governing council. Here you can see again they borrowed this language, this idea from the Middle East peace process. This is what the Israelis promised the Palestinians in the Oslo Accords. I was their lawyer at the time and it was an interim, provisional interim governing council that they promised them, but notice it's not a government, the adjective is very cleverly drafted. They tried to do this same stuff to the Palestinians too and instead of saying it's a government they put it "governing," but it modifies "council" so it's nothing more than a council. Well, you know, the Boy Scouts have their council too, the Boy Scouts Council. Hey, I'm a former Eagle Scout, I have nothing against the Boy Scouts but you know we're talking here of the future of Kanaka Maoli. So they knew what they were doing. They could have easily reversed this and said yeah we're going to give you a councilior [??] government but instead they're giving you a governing council so Governing was put in there to sort of ... to think well, you're really getting a government with governmental powers but you're not getting any of this. You'll get a council, like the Boy Scouts.
And finally, it turns out that this council that they're going to give Kanaka Maoli will be subject to the jurisdiction and control of the Secretary of the Interior, not the Secretary of State but the Secretary of the Interior, again the assumption being that Hawaii is somehow interior to the United States. Well, you know, all you have to do is look at a globe and you'll find out that Hawaii is not interior to the United States. But, put that issue aside. Who is the Secretary of the Interior today? The Honorable Gale Norton.
The Honorable Gale Norton is a member of the right-wing racist reactionary federalist society. And it was the federalist society lawyers that organized Rice v. Cayetano. They were the ones behind Rice v Cayetano. They sponsored the litigation, they argued the litigation, they took it all the way to the United States Supreme Court. Four of those justices were members of the federalist society and Justice Rehnquist ... a fellow traveler and they give you Rice v Cayetano argued that OHA was racist, and therefore the haoles get to vote for the OHA trustees.
So they are, under this legislation, they are going to turn Kanaka Maoli over to the tender mercies of federalist society lawyers in the Secretary of the Interior, Norton being one, and most of her legal staff that she brought in with her are all federalist society lawyers. These are the people that brought you Rice v Cayetano and this assault on OHA. Do you really think that the Secretary of the Interior will care one wit about the Kanaka Maoli?
We know for a fact that the Department of the Interior has looted and plundered hundreds of millions of dollars of the so-called trust fund that the United States set up for American Indians. We don't know the exact figure because a federal district judge, despite repeated orders to get an accounting, has been told by Secretary Norton, "Take a hike." And it does not look likely at all we're ever going to get a figure on how much money was looted and plundered by the Department of the Interior and the Secretary of the Interior for American Indians. Well, what do you think they're going to do to Kanaka Maoli when they get their tentacles in you, if they've already done this to American Indians? Well, they're not going to treat you any better, I think, than American Indians. You'll probably get similar treatment, looting and plundering.
Moving on then, it's very interesting, then they refer to 150 federal laws recognizing Native Hawaiians have an inherent right to autonomy in their internal affairs. Well, already that is undercut in destroying the right of self-determination. which they have conceded in both the Apology Resolution and in the Akaka legislation.
Sure, if all you want is autonomy in your internal affairs, fine, that is for you to decide but self-determination, which they have conceded legally for the Kanaka Maoli, means a lot more than that. It means that if you want the Kingdom of Hawaii to be restored as a state, to have your independence, that is your right pursuant to self-determination.
But here they are significantly trying to cut it down. Not only are they trying to cut it down to self-determination to autonomy, but they have further limited autonomy. Again, I've seen the State Department try to do the same thing with the Palestinians, they further limited autonomy by saying an autonomy only in their internal affairs, no other autonomy. Well, at least the Palestinians were given autonomy. There was no attempt made to say we'll only give you autonomy in your internal affairs. So notice they cut down self-determination first to autonomy, and then they limited the autonomy to only your internal affairs. So, basically you're getting less than even the Israelis were prepared to give the Palestinians which, again, in my opinion, does not augur well for the future.
It's very interesting that finally we get to the governing matter in Section 7, it says "The right of the Native Hawaiian people to organize for their common welfare and [to] adopt appropriate organic documents is recognized by the United States." So, the United States is recognizing the right of the Hawaiian people to adopt 'documents.' Notice it doesn't say 'laws,' they're not giving you the right to adopt laws. It doesn't even say regulations which are somewhat less than laws. All you get is the right to adopt documents. Now that's nice but the State Department and the Israelis were even prepared to give the Palestinians in the Oslo Accords.
Now what is a 'document?' Well, the law has a definition of a 'document.' I have a piece of Kleenex here and now I'm going to date it and put "IOU 5Œ¯á" on there and I'll sign my name. And all of sudden ... that piece of Kleenex becomes a document as far as the law is concerned. But you know and I know it's still a piece of Kleenex. That's all they're giving you here. You can adopt whatever documents you want, you can bring in all the signed Kleenex you want but that's all you get, as far as we're concerned. Now you could bring in the phone book here for Honolulu, that's great, but we will not recognize your right to do anything more than that. You can't make laws. You can't make regulations. So in other words, you don't have legal authority really to do anything but you can have as many pieces of Kleenex as you want.
Whoever drafted this was very careful, very clever, I'm sure it was probably those same federalist society lawyers over there in the Department of the Interior who gave you Rice v Cayetano. It wouldn't surprise me at all.
Well, then we get into the election of this council and it turns out of course that the whole determination of who gets to elect the council is under the control of the Secretary of the Interior. Well I've already commented on our current Secretary of the Interior, but, you know, let's suppose that we get St. Peter as the Secretary of the Interior. Well, it's not the right of St. Peter to decide for the Kanaka Maoli who is Kanaka Maoli. Under the right of self-determination of people, it is for the Kanaka Maoli to decide who are Kanaka Maoli, not the Secretary of the Interior, let alone St. Peter or anyone else.
That's the essence of self-determination, you decide who you are. The United States federal government has no right to determine who are Kanaka Maoli. Now I know they try to do that all the time but the end doesn't mean it's lawful, that doesn't mean it's right under international law. Self-determination means you decide, they don't decide.
Now we get to the powers of this council. And, here, two things, first the council only represents individuals, Kanaka Maoli, that's it. it doesn't represent anyone or anything else, especially and including land. It has no control over land. None. Indeed, if there was any doubt about that, Section 2 says "council shall have no powers other than the powers given to the council under this act." Well again that contradicts the principle of self-determination and inherent sovereignty. The Kanaka Maoli should be able to decide what powers this council has, not the United States Congress. And yet they've made it very clear, all you get is what limited powers we give you. And what is that? Well, the council can represent individual Kanaka Maoli, and it's very interesting the way it's drafted, it doesn't say the council may represent Kanaka Maoli, no, the council will only represent individuals on this list drawn up by the Secretary of the Interior. So it will represent individuals but not the people, not the Kanaka Maoli themselves, as the government of the Kingdom of Hawaii. So what they're trying to do to you here is atomize you. To eliminate your status as a people, under international law and practice, with the right of self-determination.
And they do this all the time. Up in Geneva at the Indigenous Peoples Forum they've refused to recognize that indigenous people are people, are people, they call them indigenous persons. Why? Well, because a people have a right of self-determination and the United States doesn't want indigenous people to have a right of self-determination, so they just call them indigenous persons. .....atomized group not the people ....
Moreover, as I've said, it's clear that this council has no control over land. None, it isn't there. Later on they say, well, at some point in the indefinite future we might consider giving this council some control over some land, but we're not making any promises. That's it. Well, again, very similar to what happened to the Palestinians in the Camp David Accords, where the Camp David Accords called for autonomy for the Palestinian people, again, what they're giving you is less than that here and after Camp David was over, the Prime Minister of Israel, Menachem Begin, said that's only autonomy for the people and not for the land.
It only calls for autonomy for the people. So you get a council that represents people but no control over the land. Now later on President Carter contradicted that and said no, it calls for autonomy for the people and the land because otherwise what good is autonomy. If you can't control people and land, what good is it? Unfortunately in the Oslo Accords, again, I served as lawyer ..., that's exactly what the Palestinians got. They got a council, an autonomy, a people and no control over the land. And that's what they're trying to give you here. It will be a council that represents individuals, not even Kanaka Maoli as a whole, and with no power over land.
And indeed at this point, sever the people from the land. We'll have the people over here and the land is over there and maybe at some point in the indefinite future, we might join them, maybe we won't. It might be a smaller amount, it might be a larger amount - who knows? We'll decide that when it's time to get to that issue.
And indeed that's made very clear in the section about negotiations that at some point in the future the talk about transfer of lands ... So, this council has no land, no natural resources, no assets, it can't tax. So what effective power does it have, except to represent this atomized group of individual Kanaka Maoli?
And finally, to add insult to injury, starting out treating you like American Indians and Senator Akaka .... to the Indian Affairs Council in the Senate, says "But by the way, you Kanaka Maoli, even though we're going to treat you like Indians we're not going to give you any of the benefits ..." and that's made very clear in Section 9b, "Nothing contained in this act provides authorization for eligibility to anything run by the Bureau of Indian Affairs," which is also determined and under the jurisdiction and control of the Secretary of the Interior.
Now before I move on to an alternative. I did want to say just a few words about the Abercrombie draft bill in the House. ... legislation you know there's usually a bill in the Senate, there's a bill in the House, there are differences. Assuming they pass, they go to a conference and get reconciled .....
And in many areas Abercrombie just tracks Akaka but there are some significant differences that I think need to be commented on because at the end of the day if this legislation passes you could be ending up with Abercrombie instead of Akaka, or some combination, some hybrid combination.
..... Congressman Abercrombie referred his bill to the Committee on Resources. Well, at least Senator Akaka referred his bill to the Committee on Indian Affairs, and he's treating the Kanaka Maoli like human beings. Whereas this one goes to the Committee on Resources, you'll be in there with the streams and the rivers and the coal mines, and things of that nature. And so obviously they're thinking of you as a natural resource. You're valuable to the tourists so they have to think of you Kanaka Maoli as an economic resource here to attract tourists so that we haole can make money. So that's all made very clear right in the beginning of the Abercrombie legislation.
And of course he does again track all the treaties that they have violated going through Akaka and the Apology Resolution but what I really wanted to comment on here was the one section in Abercrombie that is not in Akaka that in my opinion really gives the whole game away. And that's Section 3 on Ceded Lands "Those lands which were ceded to the United States by the Republic of Hawaii and which were later transferred to the State of Hawaii'"
Well, one second, they're conceding that all United States lands that they got here in Hawaii came from the Republic of Hawaii but they've already admitted that the Republic of Hawaii illegally overthrew the Kingdom of Hawaii. They've admitted and conceded this. So in other words, the Republic of Hawaii never had valid title over any lands here in Hawaii to begin with. That's clear. It was a thief, the Republic of Hawaii, and this was thievery by which they stole your lands. And in this .. they're conceding that, yes, that the United States took the lands stolen from the Kanaka Maoli by the Republic of Hawaii and called them their own and then transferred some of them to the State of Hawaii. But that still doesn't alter the fundamental nature of theft. The United States has no valid title to any of these lands to begin with because they're conceding they got what they got from the Republic of Hawaii and that is clearly illegal theft.
So, this legislation we've got here, if it is passed, will try to quiet title to all of that. They know there is a problem out here with all title in Hawaii because it all goes back to this original act of theft in 1893. How do you establish valid title under those circumstances when they've conceded it's an act of thievery to begin with? And this legislation will try to quiet that title so that people can then say "Well yes, now we can convey valid title."
Keanu Sai a lot of work on this issue .... the very valid legal issue, well how do you get title out of here in Hawaii when so much of it goes back to this act of thievery in 1893? Well, of course, you Kanaka Maoli will have to decide where you stand on Akaka/Abercrombie. I've given you my analysis about it but from an international law perspective certainly I think some points are clear: one, the existence of the Kingdom of Hawaii as a state under international law and practice was never validly extinguished, it's still there, in essence. It needs to be revived and restored. Indeed, as I pointed out in that Treaty of Friendship, Commerce and Navigation, the United States promised perpetual peace and amity and the correct remedy is restitutio in integrum - return the situation to what it was before the violation in 1893 which the United States conceded in the Apology Resolution was conducted by our agents. in other words, we're responsible for what happened in 1892.
This is why Bumpy Kanahele and the 'Ohana council and others issued their Proclamation Restoring the Independence of the Sovereign Nation State of Hawaii [Proclamation of the Restoration of the Independence of the Sovereign Nation State of Hawaii] on January 17th, 1994. Notice it was not a declaration of independence, you already had your independence. Independence did not need to be declared - what needed to be done was to restore that which had been stolen.
Now there are 4 requirements for a state under international law and practice: 1, a permanent population; 2, territory; 3, a functioning government; and 4, the capacity to conduct international relations.
Well, in this case, we already have a state, the Kingdom of Hawaii, that was never validly terminated - it still exists there in most degrees[??].
Second, a permanent population. We have that, the Kanaka Maoli. Despite all the efforts to diminish your numbers, including outright acts of genocide, you're still here and you're still on your land. The essence of sovereignty is a people still living on their land and still asserting their rights and that gives you enormous power in dealing with the haoles. They know who you are, this is your land and people still ... And you have to pursue to restore that ....
Third, a government. And here we come to the problem that I think confronts Kanaka Maoli today, at least in my opinion, you probably have a different assessment, but as an international lawyer. We have a state but we don't have a government. We have a state - it's the Kingdom of Hawaii but there is no functioning government for the Kingdom of Hawaii that represents all Kanaka Maoli.
We have, as you know, several different organizations that have drafted constitutions that represent certain segments of the Kanaka Maoli. But in my opinion what we really need now is a government of national unity for the Kingdom of Hawaii. We need all the disparate groups and factions to come together and settle ...
Again, this was the situation that confronted the Palestinians 35 years ago. There were many different groups, and organizations, and factions. And yet eventually the late president Arafat and his organization Fatha were able to pull them all together, and by the process of consensus and debate and agument and set up a government. Today the Palestinian state is recognized by about 130 states, starting out with nothing in 1969. And they have de facto, but not yet de jure, UN membership. The only reason they are not yet a UN member is the threat of a veto by the United States government. But even then, President Bush himself has stated that his ultimate objective is a Palestinian state.
Now of course it's not for President Bush to give the Palestinians a state, they have their own state, they're making their own state. Palestinians struggle for their own state just as Kanaka Maoli will have to struggle for their own state. Even General Sharon, the Prime Minister of Israel has admitted in public debate in their parliament, the Knesset, that the Palestinians have their own state.
So they made a lot of progress but they had to put together a government that united them all. An effective government that could represent the interests of all the people and move forward from there and this was done in a democratic way despite the rigours ... military occupation that is still inflcted upon them today.
So we need, I think from my perspective, you have to decide this, a government of national unity for the Kingdom of Hawaii that pulls together all the different groups and organizations and movements, etc. with a common platform and program and speaks for as many Kanaka Maoli as possible. And then, build that state from the ground up. You're not going to get your state by going to court. Keanu Sai and I tried going to the US Supreme Court. I felt, even though I thought the odds were quite high, I thought the effort had to be made, especially to commemorate the 100th anniversary of the illegal annexation, we had to do something and Keanu and I did. Build that state from the ground up with this government of national unity.
And then, fourth, the capacity to conduct international relations. To go out with this ... unity and take off where the Kingdom left off, that is, to try to re-establish diplomatic and treaty relations with all those states and those governments that the Kingdom had diplomatic relations with as of 1893. And again, your kings and your queen knew full well the critical importance of doing so. So you have to go back and pick up where the Kingdom left off in 1893. Re-establish those relations, re-assert those treaties and then try to extend. And to do both processes at the same time, the provisional government building the state, helping to build that state from the ground up, and then second, seeking that international recognition and relations as best as possible.
Obviously this is a long-term agenda, the problem has been here since at least 1893 and if not going back to circa the Bayonet Consitution, it's not going to resolve tomorrow. But look at the tremendous progress the Palestinians have made in just 35 years. And I see the tremendous progress Kanaka Maoli have made just in these last 11 years. I've been here since then but the last time ... we talked about human rights and now it's the question of independence and sovereignty. So there has been a lot of progress but in my opinion there has to be a lot more. The next step, I think, I would recommend you consider is to move forward on this government of national unity.