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Professor Francis Anthony Boyle

Mable Smyth Hall, Honolulu, O'ahu, Hawai`i
December 28, 1993

[An edited and updated version of this testimony was published in St. Thomas Law Review, Volume 7, Summer 1995]

I'm very happy to be here this evening with you, and I'mvery honored that the Sovereignty Commission would invite meto come and speak this evening. I also want to express mygratitude to Bumpy Kanahele and the members of the OhanaCouncil who have been serving as my sponsors here, for theweek that I'm here.

Now as I understand it the Sovereignty Commission is lookinginto models, examples, of where the native people of Hawai'ican go in light of the state legislation that has beenadopted and also now in light of the recent federal statutethat has just been signed into law by President Clinton. And I've been asked to come here tonight to discuss oneparticular model, for the future, for Native Hawaiian peopleto consider. Understand I was not invited here to gothrough all the possibilities that you might have. I'mhappy to comment on some of them if you have questions andgive you my opinion about them. And understand its not forme to tell Native Hawaiian people what to do. You have todecide for yourselves. But, one thing I can do is todescribe a particular vision of the future; how you might goabout achieving it; what would be the consequences; whatwould be the basis of authority for doing it; particularlyin light of public law 103-150 signed by President Clinton.

When I read the public law for the first time, the firstthought that occurred to me is that now the United Statesgovernment, after one hundred years, has finally andofficially conceded, as a matter of United States law, thatNative Hawaiian people have the right to restore theindependent nation state that you had in 1893 when theUnited States government came and destroyed it. And alsothen that as a matter of international law the NativeHawaiian people have the right to go out now and certainlyproclaim the restoration of that state. I'm not talkingabout the State of Hawai'i as part of the United States ofAmerica. Rather I am talking about an independent stateunder international law, and ultimately someday a member ofthe United Nations organization and other internationalorganizations.

Now here there is a recent example that had been pursued bythe Palestinian people who in 1988 decided of their ownaccord to proclaim their own state, and this was a decisiontaken by the Palestinian people as a whole. It was subjectto a majority vote because there was not unanimous consent,but even those who opposed agreed to be bound by a majorityvote. In 1988 they unilaterally proclaimed their own state,in a declaration of independence. This unilateraldeclaration of independence eventually led to thePalestinian state being recognized today by one hundredtwenty-five (125) nation states in the world. Now, youdon't read about that much here in the United States,because the United States government is one of the fewgovernments in the world to oppose the Palestinian state. But almost all of Latin America, Africa, and Asia recognizethe existence of the state of Palestine. Again, these areindigenous people, like Native Hawaiians, striving for theirright of self-determination. And indeed the Palestinianshave the requisite votes to be admitted to the UnitedNations organization as a sovereign independent nationstate, and yet it is the threat of a United States veto thathad prevented the admission of the state into the UnitedNations organization. But even then this has not preventedthe vast majority of the states in the world fromrecognizing the existence of their state. And even most ofEurope would accord them formal de jure diplomaticrecognition if not for pressure brought to bear by theUnited States government, and so many of the Europeanstates, which are the last holdouts, are today accordingthem de facto recognition as an independent state - that isthey are treating them as if they are an independent statewithout formally coming out and announcing it.

So this is one model to consider that I'll discuss. Notthat the plight of the Palestinians are on all fours withNative Hawaiians, but there too you have a situation ofmassive violations of fundamental human rights and peopleliving under a regime of military occupation. In their casefor the last forty-five years, in your case for the last 100years. So I'll be discussing some of the parallels withthat process, and what could be the Native Hawaiian processin the event that you were to decide to move in thatdirection.

And understand I'm not here to survey all of thepossibilities you might have. I'm prepared to comment onthem. There are other things you could consider - autonomy;returning to Article 73 status at the United Nations;semi-sovereignty. There are various different types ofstatus. But again from my perspective, this is the routethat other people in your situation have chosen to go, andthere is ample authority and precedent under internationallaw for the Native Hawaiians to decide to move in thatdirection.

Now let me start by saying that, how can this be done, whycan you do it? That is, what I am suggesting is that younot ask the permission of the United States Congress todeclare independence, but rather you exercise your right ofself-determination, that has been afforded to you, theHawaiian people, by the United Nations Charter, Article 1,paragraph 2:

"The purposes of the United Nations are to develop friendlyrelations among nations based on respect for the principleof equal rights and self-determination of peoples, and totake other appropriate measures to strengthen universalpeace."

Now, if you were to do this, or consider doing this, thereare four characteristics, requirements, for the creation ofan independent state. I submit - as I'll point out as I gothrough the analysis - that the Native Hawaiian people,Kanaka Maoli, have all the requirements you need to go aheadand do this if this is your choice, this is your decision.

First, we need a fixed territory, and clearly we have theHawaiian Archipelago. Second, a population, adistinguishable population of people, the Native Hawaiians,those who would trace their ancestry back before theappearance of Europeans on these lands. Third, agovernment, and here you have your communal structures, theKupunas - Kekune Blaisdell, my friend - and the KupunaCouncil, that you've traditionally had. You don't need agovernment along the lines of the federal government of theUnited States or the State of Hawai'i to have a government. Rather what you need is a way to organize your people togovern your relations among each other, and clearly you havethat. And fourth, the capacity to enter into internationalrelations, to deal with other states, and to keep yourcommitments. As I understand it, there are already statesin the Western Pacific region that support the NativeHawaiian people and probably would be prepared to give youdiplomatic recognition as an independent state if this isyour desire. And I also suspect, like the Palestinians,there would be a large number of states - certainly in thethird world, that have come out of a colonial situation, inLatin America, Africa, and Asia - that would also beprepared to recognize you as an independent state, and enterinto diplomatic relations with you. Whether you wouldsomeday be allowed into the United Nations of course woulddepend on the U.S. veto, but even there, the U.S. veto doesnot go on forever. Eventually they lifted the veto on theadmission of Vietnam to the United Nations, despite theenormous hostility towards the people of Vietnam, andVietnam became a member nation of the United Nationsorganization.

So that being said as preliminary, introductory remarks, I'dlike to go through the public law on a line by line basisand give you my analysis of it. And indeed I wouldencourage all of you, as Native Hawaiians, to study this. It makes it very clear what happened to you. And this isnow officially recognized as a matter of United Statesdomestic law. You should be able to take this law any timeyou're in court and haul it out and show it to the judge andthe jury, and say, "This is the law; this is what hashappened to me and my people, and I am basing my conduct,whatever I am doing, on the basis of this law. It cannot bedenied any more." As a litigator before the InternationalCourt of Justice, I would be able to take this law to theWorld Court and say, "The United States government has nowofficially conceded that it illegally invaded and occupiedthe Kingdom of Hawai'i, and for this reason the nativepeople of Hawai'i would be entitled to a restoration oftheir independent status as a sovereign nation state, to goback to what they were before the U.S. invasion, to undo thedamage that had been done."

Now this is styled as an apology, and one might say: Yes,an apology is certainly here and it's long overdue. Butit's also not enough. When a government commits a severeviolation of international law, as happened here, they justdon't apologize and walk away. Damages are required,reparations, and - in extraordinary circumstances -restitution, that is to return the situation to what it wasbefore the violation. Especially when you have a treatyviolation and in the case of the Kingdom of Hawai'i, therewere three treaties on point, in law, with the United Statesgovernment that were violated by means of the invasion. This violated international law at the time, the basicprinciple - pacta sunt servanda - treaties must be obeyed. It even violated the terms of the United States Constitutionat that time. Treaties were the "supreme law of the land,"and the invasion and annexation of Hawai'i in violation ofthose treaties not only violated international law, but theUnited States Constitution itself.

So an apology is certainly a start, but we really now haveto deal with the consequences. What are the implications ofthis apology, of this law? And that is the topic of whatI'm speaking here tonight, what might be some of theimplications of this law. And indeed, the implications, Isubmit, are what you, the Hawaiian people, are going to makeof this. It is for you to decide the implications, not theCongress, not the State of Hawai'i government, but theHawaiian people, pursuant to your right ofself-determination. What will be the implications of this,as you see it? What do you want?

It's clear then, they admitted in the law that theyoverthrew the Kingdom of Hawai'i. A clearly illegal act,under the standards of international law in existence atthat time, no question or doubt about it.

In a meeting this morning, this afternoon, I was speakingwith Judge Nakea on behalf of the Graces, and he said: Well, yes, but in the United States law, the United Statesgovernment has always been able to extinguish the right ofnative peoples, and the Supreme Court has seen nothing wrongwith that. I said: Well, that might be the case withrespect to Native Americans living in the United States, buthere in Hawai'i you're in a very different situation. Youhad these three treaties, one of which was a treaty offriendship, and commerce and navigation, that establishedgood relations between two sovereign states, and theyviolated that, too. And this issue, a treaty of thisnature, came up most recently in the World Court in theNicaragua case, when the World Court condemned the UnitedStates government for violating a treaty of friendship,commerce, and navigation, for mining the harbors inNicaragua. And certainly the World Court can do the samething for overthrowing a monarch, and overthrowing anddestroying an entire sovereign nation state. And here thenyou have the Congress of the United States of Americaadmitting that in one of its own laws. And that's veryclear, this admission, what we lawyers call an "admissionagainst interest." They have admitted what they did, andthey have then opened this Pandora's Box. How should thisbe remedied? And again the one point to keep in mind hereis that it is now for the Hawaiian people to decide theappropriate remedy, not the Congress. They're thecriminals. They've admitted what they've done now, for thelast one hundred years - and that the American presence,then, in Hawai'i, for the last hundred years, has beennothing more than an illegal, colonial, military occupationregime.

The next sentence goes on - and here remember it's importantwhen reading through this act, the so-called whereasclauses: these are official findings of fact and law, bythe Congress of the United States. These findings bind allstate and federal courts here in Hawai'i. And again I waspointing this out this afternoon to Judge Nakea with respectto the case of Mike and Sandra Grace, that the court andjudges are bound by these findings of fact. They can nolonger be contested or denied. They're stuck with them.

"Whereas, prior to the arrival of the first Europeans in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient, subsistent social system, based on communal land tenure, with a sophisticated language, culture, and religion."

That concedes that Native Hawaiians at that time and as oftoday still have the one requirement for an internationalstate, which I mentioned, a government. You had a means togovern yourselves as a people. Congress has effectivelyconceded it right there. It still is in existence today. And this is a type, a system of government that ishistorically separate and apart from the State of Hawai'i orthe United States federal government. It is still there, itstill works today. I've seen it since I arrived here onSunday with my visits with Bumpy and the Ohana Council - thepeople of Hawai'i providing shelter, food, housing,education, dispute settlement procedures and mechanisms. The types of things that you did a hundred years ago, beforethe U.S. invasion, to some extent you're still doing today,and it would simply be a question of expanding those typesof functions that you provide to your own people.

In the case of Palestine, this is building the state fromthe ground up, where the Palestinian people rejectedparticipation, acquiescence, collaboration, with Israelimilitary occupation forces, and proceeded to provide socialservices to their own people: health, education, judges,dispute settlement, whatever. That is building the statefrom the ground up. That's how you build a state. No oneis going to give it to you. I doubt very seriously that theU.S. Congress tomorrow is just going to pass a statute andgive you a state and say, "Here." Rather you go out andsay: We're creating our state. There it is, and we ask youto recognize the state, and then the consequences fromthere.

The next sentence:

"Whereas, a unified monarchical government of the HawaiianIslands was established in 1810 under Kamehameha I, thefirst King of Hawai'i."

Again, Congress admitted, you had a government. You had astate. It was there. It was viable and functioning. Itwas internationally active. This was not a situation thatthe U.S. government maintains with respect to NativeAmericans. Now here they're wrong, too. They maintain thatNative Americans did not have a states type structure thatthey had to recognize, because it was somewhat differentfrom the structures of government that Europeans brought tothe North American continent. We know they're wrong. TheNative Americans did have a governing structure. It's justthe Europeans didn't want to recognize it, and wanted tosteal the land.

But putting that aside, you're in a very different situationhere from Native Americans. Now Congress has conceded whatthey will not concede for the Native Americans - that youhad a state, that it was a state just like any other statein existence at that time - just like the United States ofAmerica - and was entitled to as much respect and dignity. And Congress has now conceded this point. That's why when Iread in the newspaper on Monday about this visit by theSecretary of the Interior Babbitt, and his question, "ShouldNative Hawaiians become treated by the federal governmentlike the Native Americans?" And my response to reading thatis, "Why would you want to do that?" Those of you who had achance to view the tape of the San Francisco Tribunal - andI encourage those who haven't seen it to watch it, Kekunihas it, Kekuni participated - you'll see that NativeAmericans are up against genocide and extermination. That'sthe policy of the federal government, with respect to NativeAmericans. So I don't understand why Native Hawaiians wouldwant to buy into a system and be treated in the system in away that ultimately would lead to your extermination. Andthat's certainly the way large numbers of Native Americanssee it. That was the purpose of the San Francisco Tribunal,and then I'd encourage you, if you haven't seen that tape,have a look at that tape. So whatever you do, I wouldcertainly caution you against trying to seek the same typeof treatment that the federal government has doled out tothe Native Americans, because we know where that will lead.

Moreover, on the basis of this statute, you're entitled to alot more than what they give the Native Americans. Andthat's not to say that, in my opinion, the Native Americansaren't also entitled to establishing themselves asindependent nations, if that is their desire. But thedifference here is that your right to do this, the predicateto do this, has now been recognized by the United StatesCongress itself. Whereas the Congress has never recognizedthis for Native Americans, and I doubt the U.S. Congressever will, because if they did that, they would eliminatethe whole basis of pseudo-legitimacy upon which the UnitedStates Congress rests, land, title, and everything else. And I doubt very seriously that they'll want to do that.

The next paragraph:

"From 1826 to 1893, the United States recognized the independence of the Kingdom of Hawai'i, extended full and complete diplomatic recognition to the Hawaiian Government, entered into treaties and conventions to govern commerce and navigation"

- and friendship. Now they didn't put the word "friendship"in there, they wanted to delete it, but the treaty wasfriendship, commerce, and navigation. So here they'readmitting that the invasion, overthrow, occupation,annexation, starting in 1893, on up, violated all thesetreaties, violated basic norms of international law, even inexistence at that time, and that was a pretty bad time, onemust admit. You had states going to war, people killingeach other, the strong doing what they will, the weaksuffering what they must, pretty much like today in the NewWorld Order. But again, here, the United States Congresstaking the position: Yes, this behavior was illegal underinternational law even in accordance with the minimalstandards at that time. And again this distinguishes thecase of the Native Hawaiians from the Native Americans,where they have yet to admit that there was anything wrongunder international law with the way they treated the NativeAmericans, and if you read all the supreme court cases, theysay: Well, this is just the right of conquest, and thosewere the rules in existence at that time. But what they'resaying here is: No, this was not just a question of rightof conquest, but treaty violations. They were violated.

It violated international law. It even violated the termsof the United States Constitution at the time where treatieswere the "supreme law of the land." So again, legallyyou're in a much different, much better situation thanNative Americans.

The section on the Congregational Church - well, as Iunderstand it, there is an attempt being made to havereconciliation. I'll skip over that one.

"On January 14, 1893, John L. Stevens, the U.S. Minister, conspired with a small group of non-Hawaiian residents of the Kingdom of Hawai'i, including citizens of the United States, to overthrow the indigenous and lawful government ."

So again, they concede that the government of the Kingdom ofHawai'i was the lawful government at that time, and that anofficial agent of the United States government conspired tooverthrow the government of Hawai'i. So the United Statesgovernment is bound by the actions of its agent, of itsMinister. And so they can't say, "He did it, and later onwe condemned what he did." You know the President did sheda crocodile tear or two over what he did, did he not, right? There was a statement, whatever. That's not enough. Ofcourse it isn't. If the Minister did it, it's just the sameas the President doing it. There's no difference. ThePresident is bound by the actions of his Minister. And theUnited States government was bound by the actions of theMinister. So it was the United States government thatconspired to overthrow the lawful government of the Kingdomof Hawai'i. Again, an internationally illegal act at thetime it was done.

The next paragraph continues,

"Pursuant to the conspiracy naval representatives called armed forces of the United States to invade the sovereign Hawaiian nation on January 16, 1893, and to position themselves near the Hawaiian government buildings and the ['Iolani] Palace to intimidate the Queen [Liliuokalani] and her government."

Notice the use of the word "invade." Today we like to useeuphemisms such as "incursion," right? That's another wordfor invasion. But here they call an invasion an invasion,right? That's what it was, a clearly illegal act, aninvasion in violation of treaties and internationalagreement, an invasion in violation of international law,and the United States Constitution, the overthrow of alawful government. And again, under international law whenyou have a violation of treaties of this magnitude, theWorld Court has ruled that the only appropriate remedy isrestitution. Damages are not enough, reparations are notenough - that is the payment of money - or giving you anisland over here and saying, "Here, you can have thatisland." No, restitution, to restore what you once had,that is the Kingdom of Hawai'i, your independent nationstate, this is the appropriate remedy, if that is what youwant, for what was done.

Now it goes on from here, reciting the sorry history of whathappened, the establishment of the provisional government. Well, that's not entitled to any legitimacy at all. It wasimposed by raw, naked, brutal military force, at the pointof a bayonet, gunboat diplomacy, by the United StatesGovernment just as was practiced in many other countries,only here now Congress is finally admitting this.

And again, pointing out in the next paragraph, that theestablishment of this provisional government was without theconsent of the Native Hawaiian people or the lawfulgovernment of Hawai'i and violated all of the internationaltreaties and agreements. So under international law, youwould not call this a provisional government - I certainlywouldn't call it that - you would call it a government ofmilitary occupation. And certainly I would suggest thatwould be an appropriate way to think about it. That is, youhad military forces here and then you had a civilian arm ofthe military occupying regime.

You see the same thing today in the occupied Palestinianlands, where you have the Israeli occupying forces here andthey have then set up a civilian arm of their militaryoccupational authorities to administer the civil affairs ofthe Palestinian people. These matters by the way arecurrently the subject of the negotiations between the PLOand Israel today, about the withdrawal of (1) the civilianmilitary occupation arm, and then (2) the militaryoccupation forces themselves. And indeed the September 13agreement signed by Arafat and Rabin calls for thedissolution of the civilian occupation arm and then thewithdrawal of the military occupation forces themselves.

So I submit that this "provisional government" is really thecivilian arm of a military occupation force, and that thenis the predecessor to the current government of Hawai'i thatadministers you today. Again, following the implications ofthe public law, that the state government of Hawai'ioccupies a similar position. And then of course you havefederal occupying military forces here keeping it in power. Again, somewhat similar to the arrangement you have inPalestinian lands.

We then come to the very famous statement by your Queen.

"That I yield to the superior force of the United States of America,"

and you are aware of the rest of the language. Well, shemade it very clear here that this statement and her laterabdication was procured under duress and force. In otherwords, it could not be treated by anyone as a validsurrender of sovereignty by the Native Hawaiian people atall. And she made that very clear in this language. So inother words she was simply bowing to superior power, but notas a matter of right or of law. And I've done a similarthing myself in the Bosnia case in the world court, where Ipointed out in a file communicating with the World Court,that the so-called Owen-Stoltenberg plan to partition theRepublic of Bosnia and Herzegovina, was concluded, orarguably still might be concluded, by means of threats andduress, compulsion and coercion, and therefore was invalid,would be invalid, under international law, and the ViennaConvention on the Law of Treaties. This type of behaviorstill goes on today. But your Queen, a very powerfulperson, made that clear, that she was simply yielding tosuperior force, and thus preserving the rights of her peoplefor the future, their right of self-determination, theirright to restoration of their sovereignty.

The law goes on, where Congress admits:

"Without the active support and intervention by the United States the insurrection would have failed for lack of popular support and insufficient arms."

And I was reading this little letter by the fellow whotraces his ancestry back to one of the missionaries whopulled this thing off [Thurston Twigg-Smith] saying: Well,in saying you know, we should stop all this debate, theseare real genuine patriots, et cetera, et cetera, and ofcourse they were entitled to do what they did. Well,apparently he didn't bother to read the law. Okay, he cansay whatever he wants, but Congress has now made it veryclear what happened. And he can argue till the cows comehome but this is now the law. He'd better read it. And infact Congress has condemned what his ancestors had done. And now the simple question is: Where do the NativeHawaiian people want to go from here?

Well, again:

"The U.S. Minister raised the flag and declared Hawai'i to be a protectorate of the United States."

Well, of course that's nonsense. They didn't protectanything, did they? There was no need to protect Hawai'i,what, from itself, from its own people? Who was threateningHawai'i at that time? It was the United States. Theyneeded protection from the United States, so this is absurd. It's entitled to no legal validity at all at the time, oreven now, and that's basically what Congress is saying.

Again, the Blount Report:

"Military representatives had abused their authority and were responsible for the change in government."

Again, they admit that, that they acted illegally underinternational law. But an admission is not enough. Theimplication, then, of these admissions, by Congress, by theBlount Committee, is that there must be restitution. TheHawaiian people have a right to be returned to the situationthey were in, as of January 17, 1893. This is their rightif that's what they want. They disciplined the Minister andforced him to resign his commission. Well, they should havedone that, of course they should have, but that should nothave been the end of the process. The overthrow should havebeen reversed. They had the authority to do it, thePresident could have done it if he had wanted to, he justdidn't do it. So this is simply eye washing. It's nicethat they finally conceded these points, but it's not enoughunder international law.

Now I don't know how the Native Hawaiians feel about it. Isuspect maybe they'd agree with me that it's certainly notenough. Where it should lead from here you know is anotherissue. Again I'm trying to point out line by line that thisresolution clears up all these matters, all debate, allargument, and it makes it very clear you have a right ofrestoration, of restitution, to proclaim your state. Andyou don't need the permission of Congress to do this. Congress might not like it, but they're kind of stuck withtheir own law, are they not?

The message to Congress by President Cleveland. Well again,he admitted all this:

"An act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress."

Clearly admitting that this was illegal behavior of the mostheinous type. "A substantial wrong was done," calling forthe restoration of the Hawaiian monarchy. Now of coursethat wasn't done, but that doesn't change the legalsituation. Today, a hundred years later, you have a rightto restore it yourselves, if that's what you want to do. You don't need to petition Congress to do it. Congress hasgiven you everything you need right here to do it, if that'swhat you want to do. And the United Nations Charterprovides the rest of the authority to do it.

Now, again I won't go through all of the paragraphs herebecause I take it all of you have read it. The NewlandsJoint Resolution provided for the annexation of Hawai'i. Where's the authority for this? None. They stole the land,invaded the country, displaced the government, and now theyannex it. This issue was addressed by the NurembergTribunal in 1945, where the Nazi government tried tomaintain that some of the annexations of foreign territorythat it had undertaken before and during the Second WorldWar were entitled to legal recognition. The NurembergTribunal itself in 1945 said, "No, annexations are invalid,prior to the conclusion of a peace treaty." The UnitedStates government and the President conceded they've engagedin acts of war, they're occupying, they put themselves atwar with your people. Now they've annexed it, but theannexation has no validity under international law. If aspart of the peace treaty between Hawai'i and the UnitedStates you want to concede them some land that's up to you,that's your choice. Or if you want to give them operatingfacilities for a base upon the payment of funds and rent orsomething, that's for you to decide, but now they haveeffectively in this law invalidated the entire annexation. The whole legal basis for it has now been invalidated.

And I was pointing this out to Judge Nakea this afternoon. If the annexation of the land is invalid, then where doesthe title come from, who has title to the land? It's theNative Hawaiian people who retain title to the lands ofHawai'i, as a matter of international law. Not the federalgovernment, not the state government, but the peoplethemselves. That's the implication here, certainly as Iread this section, as an international lawyer. And againthese finding of fact and conclusions of law are nowofficially set forth by Congress, so it's only one step, asI'm trying to point out here. What are the implicationsthen of these findings of fact and conclusions of law? Certainly as I see it, I'm trying to spell out line by linewhat the implications are.

So again,

"The Newlands Resolution, the Republic of Hawai'i ceded sovereignty over the Hawaiian Islands to the United States."

But again the Republic of Hawai'i never had sovereignty overthe Hawaiian Islands. We've already determined that the so-called Republic of Hawai'i was the civilian occupying arm ofa military occupation authority. It had no sovereignty. Military occupation forces, even though they are there andare present, do not exercise sovereignty over theterritories they occupy. Sovereignty remains in the handsof the displaced sovereign. This is black letterinternational law. This is the issue at stake in the MiddleEast peace negotiations between the Israelis andPalestinians. The Israelis do not have sovereignty over theWest Bank, the Gaza strip, and East Jerusalem. They're amilitary occupation authority. They exercise administrativepowers, but they do not have sovereignty. They never had. The sovereignty remains in the hands of the Palestinianpeople, and they have proclaimed a state. Again I submitthere is a parallel here for Native Hawaiian people. Sovereignty resides in your hands. And this so-calledRepublic never had sovereignty to cede to the United States,and that's pretty clear just reading through the resolutionand moving one step forward from the analysis set forthhere.

"The Republic of Hawai'i also ceded 1,800,000 acres of crown, government, and public lands of the Kingdom of Hawai'i, without the consent or compensation of the Native Hawaiian people, or their sovereign government."

Once again, they had no authority to do this, for thereasons I've already spelled out here. The government ofthe Republic of Hawai'i was a military occupation authority,the civilian arm, without any sovereign claims to the landunder the laws of military occupation, the laws of war. There was nothing to cede, they had no power to cedeanything. And the title then, to the land, rested and stillrests, under international law, with the Native Hawaiianpeople.

Again I was trying to point this out this afternoon to JudgeNakea. How can it be said that the Graces trespassed ontheir own land? You can't trespass on your own land. Andthe trespassers then become the State of Hawai'i, and theland developers, and the golf courses, and the resorts. Sowhat this statute does is point out that the whole situationis completely turned around on its head. It now changes thewhole way certainly that these authorities should be lookingat the matter. They're the trespassers and the criminals. You are simply the Native Hawaiians asserting your rightsunder international law. And now this arrangement, as itwere, this reversal of positions, between who is thecriminal and who is the victim, who is asserting theirrights and who is violating their rights, has beeneffectively conceded by Congress.

And in this regard I'd encourage all Native Hawaiians toknow what are your rights. Get a copy, a little hand copyof the Universal Declaration of Human Rights, and carry itaround with you. Your rights are in here. With respect towhat Bumpy Kanahele and his people are doing out on thebeaches, in the settlements, Article 25,

"Everyone has the right to a standard of living adequate for the health and well-being of themselves and their family, including food, clothing, housing, medical care and necessary social services."

They have a right to have housing, that's clear. The Stateof Hawai'i has no right to throw you out of your own homes,even if those homes are nothing more than tents on a beach,they're still your homes. Where is their right now, if theyever had any, after the passage of this act? I don't seeit. It's not longer there. The same way with respect withthe attempt to destroy your temples. Places of worship,Article 18 of the Declaration,

"Everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to manifest his religion or belief in teaching, practice, worship, and observance."

So where is the right of the State of Hawai'i, or a realestate developer, or a resort developer, to destroy any ofyour temples, when these are your temples, this is yourland, your right to worship is guaranteed in the UniversalDeclaration. I don't see that right any more, and indeed itwill be very hard for them to argue that right now that thislaw has been passed. I won't go through the applicabilityof all the Universal Declaration of Human Rights to theactivities of Native Hawaiians here in relations of stateand federal governments. Again I'd encourage you to getthis from Amnesty International. They have them available. Read through it, and understand what your rights are, andproceed to assert them in your dealings with the state andfederal government.

"Whereas, the Congress annexed Hawai'i and vested title to lands in Hawai'i in the United States."

Clearly illegal. We've already seen it. The annexation wasinvalid. You can't get title from the Republic of Hawai'ibecause they never had title in the first place. They hadno sovereignty. They were nothing more than a militaryoccupation power, and a military occupation power cannotvalidly transfer title to land. Again, black letterinternational law. That is why today the United Statesgovernment condemns the settlements in occupied Palestinianland. Settlements are illegal. You can't transfer title,the occupying power can't sell land legally. I mean theycan do it, but that doesn't make it lawful. It's invalid. It is illegal. So an occupying power can't sell land, theydon't control title or sovereignty. They can administer,but that's all, arguably, they can do. In theory, they'reobliged to leave, not to stay.

"Whereas, the Newlands Resolution effected the transaction between the Republic of Hawai'i and the United States government."

Again, it's entitled to no validity at all, since it's basedon an illegal invasion, violation of treaties, violation ofprinciple of pacta sunt servanda. We could be here allnight discussing violations of law that accrued as a resultof this.

And again they admit,

"The indigenous Hawaiian people never directly relinquished their claims to inherent sovereignty through a plebiscite or a referendum."

This gets back to the question of what happened, back in,what '59, right? What validity was that entitled to? Wellnow Congress is saying: None. And I would say even beforethis, none, because you didn't have a plebiscite conductedby the United Nations organization itself, which would havebeen a requirement if Article 73 of the UN Charter had beencarried out. The U.S. didn't do that. So Congress iseffectively conceding now that the so called vote ismeaningless, as a matter of international law and UnitedStates domestic law. So you're not bound by it. Rather I'msuggesting you're now free to determine your own fatepursuant to the principle of self-determination in Article1, paragraph 2 of the United Nations Charter.

Let me skip down. Again, I don't want to go through allthis, take up all your time.

"Whereas, the long-range economic and social changes in Hawai'i over the nineteenth and early twentieth centuries have been devastating to the population and to the health and well-being of the Hawaiian people."

Well that's an understatement. The Hawaiian people havebeen subjected to the international crime of genocide, asdetermined and defined by the 1948 Genocide Convention,and the 1987 Genocide Convention Implementation Act, theProxmire Resolution. That is clear. That was one of thefindings of the San Francisco Tribunal. That was one of thekey findings of the tribunal held here this summerconcerning Hawai'i [Ka Ho'okolokolonui Kanaka Maoli]. And Isubmit, having argued genocide myself to the InternationalCourt of Justice, and having convinced them that genocide isgoing on in Bosnia-Herzegovina, I personally would have nodifficulty at all in convincing the World Court thatgenocide has been practiced by the United States governmentagainst native Hawaiians. Now, that's bad enough, but wheredoes that lead you? I submit where it leads you is back tothe creation of a State. One of the few and onlyprotections a people have from being exterminated by meansof genocide, is their own state and ultimately UnitedNations membership.

This is what happened to the Jews - right? - from 1939 to1945. They did not have a state. They did not havemembership in the League of Nations. So everyone looked theother way and they were exterminated and wiped out. Todaythe situation is being replayed in respect to the Bosnians. The Bosnians do have a state and they do have U.N.membership and it is the one thing they have that is keepingthem from going the same way as the Jews. And thePalestinians recognize this, too. That they had to proclaima state, in order to protect themselves from be beingannihilated. So a state, an independent sovereign nationstate is one way a people who are threatened withextermination by means of genocide can attempt to protectthemselves. And according to the statistics that KekuniBlaisdell presented to the San Francisco Tribunal thatnative Hawaiian people are threatened with extinction by theyear 2030. So this is something that has to be given veryserious consideration. What is the best way to protect theexistence of your people, as a people? Is it to accept thesame status as Native Americans, which I guess SecretaryBabbitt is considering graciously giving you? Or is it toproclaim your own state, and then ultimately seekinternational recognition and finally U.N. membership? Again, this is for you to decide. You have to consider thealternatives because ultimately it's your future and that ofyour children and your children's children that is at stake.

Now in the final "whereas" clause, they say,

"It is proper and timely for Congress to acknowledge the historic significance of the illegal overthrow."

Before then they only talked about an overthrow, they didn'tconcede it was illegal, although it violated all thesetreaties, but now they say it is illegal. So in otherwords, they're agreeing with what I'm telling you. It wasillegal. If you had any doubt, now even Congress isagreeing. It was an illegal overthrow. It had no validityat all. The fruits of this overthrow are entitled to norecognition as being valid today. And that calls intoquestion title to all the land here. Who's land is it? Well, from what congress seems to be saying to me its theland of the Native Hawaiian people.

Then they talk about reconciliation efforts, support thereconciliation efforts. Well, of course I'm in favor ofreconciliation. But there's more to it than that. Again,under international law, if you have a violation of thisnature the appropriate remedy is not simply reconciliation,apology or reparations, but restitution. That is, to setright the harm that had been done. To restore the situationto what it had been before the violation in 1893. And thereis a very famous case by the World Court, the ChorzowFactory case, would be the authority for this. So in otherwords, sure, have reconciliation. But what aboutrestoration? That clearly is what you're entitled to.

Now we get to this Section 1, Acknowledgment and Apology. Again, they repeat, "Illegal overthrow," so it's not simplyme interpreting the significance of the various whereasclauses, but now in the operative provision of the statute:resolved by the Senate and House of Representatives of theUnited States of America, in Congress and Senate, and signedby the President. This was an illegal overthrow.

"Acknowledges the historical significance of this event which was ultimately the suppression of the inherent sovereignty."

So notice what they're saying. The Native Hawaiian peoplestill have sovereignty. The sovereignty inheres in you. And now it is for you to decide what to do with thissovereignty. Because the state of Hawai'i, the federalgovernment, are as I said, the civilian arms of the militaryoccupation authority. And military occupation authority donot have sovereign powers. The sovereignty resides in thepeople. And that is clearly the implication of Section 1 ofthe operative provision of the statute.

Paragraph 3 apologizes for the overthrow, "With theparticipation of agents of the United States." Again, ifyou had any doubt about what I was telling you before,about the U.S. government being responsible for the actionsof its ministers, they've now called these people "agents." So their conduct, their illegal conduct, binds the UnitedStates government, which means the United States governmentthen, is under an obligation to undo the harm that was done. But even if they don't, the Native Hawaiian people have aright to act to undo that harm. And again if you doubtabout that, the rest of the sentence says, "The deprivationof the rights of Native Hawaiians to self-determination..." So in other words, Congress has conceded that the NativeHawaiian people have a right to self-determination. Whatdoes that right include? Well, as I said, self-determination of peoples under the U.N. Charter reads, a right to a state of your own and to membership ultimatelysomeday in the United Nations organization, just like the188 other states that are currently members of the UnitedNations today.

[Section] 4 expresses its commitment to acknowledge theramifications. What are the ramifications? Well, that isthe subject of my discussion tonight. If you followed theanalysis that I presented before, then I put forward herewhat I believe are the ramifications, the implications, ofthe overthrow of the Kingdom of Hawai'i. Now, whetherthat's the direction you want to go, that is up to you, foryou to decide, not me.

And then again finally in the definitional section, wherethey talk about Native Hawaiians,

"Any individual who is a descendant of the aboriginal people, prior to 1778, occupied and exercised sovereignty, in the area that now constitutes the state of Hawai'i."

Again, affirming that the native people of Hawai'i were andby implication still are the sovereign authority in theselands, not the state, not the federal government, but theNative Hawaiian people themselves. Well, based then on thispublic law, and going through it line by line, I wouldexpress the opinion that today the Kanaka Maoli have theright exercise self-determination as a people in accordancewith the U.N. Charter, and proclaim an independent state, ifthat is your desire. And, join the world community ofstates as an independent nation state. This also means thatyou have the right to determine your political status, yourtype of governmental organization to govern yourselvesthrough customary systems. And freely pursue your economic,social, cultural development in accordance with Article I ofthe International Covenant on Civil and Political Rights andthe International Covenant on Economic, Social and CulturalRights. The United States government is party to that firsttreaty. That treaty also recognizes the right of NativeHawaiians to freely dispose of your natural wealth andresources, without prejudice to obligations arising out ofinternational economic cooperation. This is your land. These are your natural resources. Whatever powers areexercised by the state and federal government are those of acolonial occupation military regime. But the sovereigntystill resides in the hands of the Native Hawaiian people. You have the territory necessary for a state. The HawaiianArchipelago, the lands that you had before the invasion of1893. You would be entitled to claim a 12 mile territorialsea and a 200 mile exclusive economic zone, in accordancewith customary international law and the Law of the SeaTreaty of 1982.

The second requirement of an independent state are thepeople. And, again Congress has recognized the Kanaka Maolipeople are a group of people with sovereignty, sovereignpowers. You have lived here forever. You are the originalinhabitants and occupants of these islands. You have alwaysbeen in possession of your land. And so you would beentitled to reestablish an independent sovereign nationstate in that land. Possession is nine tenths of the law. You're still here, you're still living in your homes, youare still occupying your land. And it might be true thatthe state and federal governments are illegallydispossessing you. But you are still going back in there,you're still building settlements, you're still occupyingit, and your staying there. And that's all thatinternational law requires, and as I have suggested, thatcertainly is your right under the Universal Declaration ofHuman Rights.

Who would be your citizens? Well certainly the citizenswould be those who are descendants of the Kanaka Maoli, whooccupied and exercised sovereignty in Hawaii, prior to theEuropeans in 1778. You would trace your ancestors back. Again, it would be your right to determine who your citizensare.

I take it you would reject this blood percentage that hasbeen set up by the United States government. This isreminiscent of Nazi laws, that were applied to decide whowas Aryan. And those laws in turn were patterned on laws inthe American South, on miscegenation, who was a black andwho was a white.

The way this is normally done by most states today, a stateis free to determine who its own citizens are. Andcertainly you would be free to determine that all those whocould trace their ancestors back to 1778 would automaticallybecome citizens of the new state.

Now, what about those who are living here who are not ableto trace their ancestors back? What about them? Again thisis an issue that has confronted several states today. Forexample, in the Baltics, Lithuania, Latvia and Estonia,where you have large number of Russian citizens left behindas a result of the Russian Soviet occupation for the last 50years, which is about half the amount of time you're dealingwith. And the Baltic states, the three of them have takendifferent approaches. For a period of time I advised theRepublic of Lithuania under President Landsbeagis, who wasthe hero and leader of their independence movement, who lostan election and the people voted the communists back in, soI no longer advise them. But they've taken a very generousapproach to those Russians who remain, trying to integratethem into their society.

And certainly the Hawaiian state could the position thatyou'll set up a procedure to provide citizenship to allpeople who are habitual residents of the new state ofHawai'i as of a certain date, which would mean those whohave lived here continuously five years, ten years, whatevercut off point you want, two years, are also themselvesentitled to become citizens of this state on a level ofequality with everyone else, but they have to apply for it. It would not be automatic, as would be the case with theNative Hawaiians, who would automatically become citizens.

And again there are precedents here in the way thePalestinians are dealing with this. They too have adiaspora population. You have large numbers of Hawaiiansall over the world who had to leave. Approaching it thisway would enable you to allow all them too to claim Hawaiiancitizenship, if that is the case, if that's what they wantto do, and to return. The Palestinians did it that way. They set up a state and said: We're setting up a state forall Palestinians everywhere in the world. So in theorythose who want to be citizens of the state can claim it andbe admitted. There is also the situation that you have alarge number of Jewish settlers living in occupiedPalestine. And the Palestinians have taken the positionthat they are prepared to accept a certain number of Jewishsettlers as citizens living in their state on a basis ofequality with everyone else, provided that they are preparedto be peaceful and law abiding and to be treated as equals.

So there are precedents for the new state of Hawai'i to takea similar position for those non-native Hawaiians who livehere, and saying: We don't want you to leave. We'resetting up an inclusive state. We want you to stay. Andyou would simply have to apply for citizenship in the newstate. It could be done in a way that they would not haveto renounce their U.S. citizenship if that's what the NativeHawaiians decide. That could be a big issue for the currentgeneration of non-native Hawaiians living here. It probablywould not be a big issue for the next generation. Theywould be Hawaiian at birth, entitled to citizenship atbirth, and probably whether they would claim U.S.citizenship wouldn't be all that important. But for thosewho are here who are U.S. citizens it would be possible toallow for them to become dual nationals. That is they wouldapply for Hawaiian citizenship without having to give upU.S. citizenship. And this would be fully consistent withUnited States law. I was born in the United States, but Iapplied for Irish citizenship. My family's Irish, and Ihave Irish citizenship and an Irish passport. The Irishhave been subjected to genocide, too. We know what it's allabout. We are a diaspora people, too. We have people allover the world. And so we have an inclusive form ofcitizenship that allows people to claim it without having togive up whatever other citizenship they have as well. Andthe Native Hawaiian state could approach the question ofcitizenship in a similar way.

Now, I've already discussed that the system of government,again the third requirement that you would need, and Ibelieve you have it, for an independent state. You haveyour Kupuna system. And as I said, Congress has recognized,in the language I quoted to you,

"A highly organized, self-sufficient, social system based on communal land tenure, maintaining order through mediation."

That's all you need, and you have that. So you would simplywork that out, the implications of that system on a statebasis, that is the new Hawaiian state's basis. That wouldbe the way the new Hawaiian state would be governed, not thecurrent situation as you see it today.

And finally the capacity to enter into internationalrelations. And again here, I think that if you were todeclare an independent state you would probably obtainrecognition in that capacity from a fairly large number ofstates. I could not predict the number of states that wouldrecognize you. I don't know. You would have the sameproblems in the equation of the Palestinian state. Wedidn't know how many states would recognize the Palestinianstate back in August of 1988, before it was created. Buthere it is December of 1993, and there are 125 states thatrecognize the state of Palestine. And someday hopefully thestate of Israel will recognize the state of Palestine. Thestate of Palestine already recognizes the state of Israel,and you can have peace and reconciliation between those twopeople as well.

So I could not predict how long this would take, what wouldbe the consequences, how many states will recognize you, butI take it that the plight of the Hawaiian people isgenerally well known in the world, and there's a great dealsympathy. For a variety of reasons the Palestinians havehad an uphill struggle and battle in obtaining thatrecognition. So it might be that you would be able toobtain recognition quickly. And especially if you pursuethis process in accordance with principles of peaceful,non-violent struggle. And I submit that's the mosteffective technique you have today. And if you doubt me,you should read Gandhi's book, Satyagraha, Non-Violent CivilResistance. It's about 300 pages long. And it explains howGandhi threw the mighty British Empire out of India withoutusing force. People power, what we call it today. And Isubmit that the Native Hawaiian people would be able to dothe same thing, moving in this direction and adopting thetechniques of peaceful, non-violent action, which is whatGandhi called for.

Well, those conclude the comments, the formal comments I hadto make this evening. Again, this is presented not as asolution to any problems. My assignment here tonight as Iunderstood it was to sketch, briefly, one outline, onealternative, that the Native Hawaiian people can consider,among other alternatives that are available to you. Obviously you could tell by some of the comments I've made,that I had some problems with a few of the otheralternatives that have been presented to you, but ultimatelyit is your choice to make, not the choice of the UnitedStates Congress, not the choice of the State of Hawai'i, andwith all due respect to the commissioners here. But it isthe choice of the Native Hawaiian people. They have theright to self-determination, they have the inherentsovereignty, and that fact has now even been recognized bythe United States Congress itself. So it's no longer justme up here as a law professor giving you an opinion as a lawprofessor. But rather the opinion I'm giving you tonight isbased up these formal findings of fact and law by the UnitedStates Congress.

Thank you very much.

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