Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 3, 1 March 1994 — News from Washington D.C. [ARTICLE+ILLUSTRATION]

News from Washington D.C.

Mai Wakinekona Mai

by Paul Alexander Washington, D.C. Counsel for OHA

Boyle's opinion just one side of the story

In a speech in Hawai'i at the invitation of the Hawaiian Sovereignty Advisory Commission, Illinois University law professor Francis A. Boyle (see Ka Wai Ola O OHA

February 1994 artiele) argued that the " A p o 1 o g y Resolution," (P.L. 103-150) meant that native Hawaiians could proclaim themselves an independent nation and seek recognition from other eountries, particularly those "developing"

countries in what is labeled the "third world." Public Law 103-150 is the joint resolution of Congress that apologizes to the native Hawaiian people for the participation of agents and citizens of the United

States in the overthrow of the Hawaiian monarchy. Boyle seems to think the apology represents law and that the right of native Hawaiians to restore their nation to its 1893 status to be

self-executing. In fact, congressional resolutions are not self-execut-ing. They are viewed by U.S. courts as "hortatory," loosely translated as "niee words, no action." An example of one such hortatory statute is the joint

resolution on Native American Religious Freedom. When Native American religious practitioners attempted to use the Religious Freedom Act to prevent a federal agency from cutting a road through a pristine forest central to

their religion, the U.S. Supreme Court held the act was not selfexecuting, and that the management responsibilities of the federal agencies involved prevailed over Native American religious considerations. Rather than focus on Boyle's speech, however, it may be more important to show how people ean critically evaluate what lawyers advocate, and to discuss our obligations as lawyers to put our advice in a realistic contest. Because of complex statutes and the unique body of law eoncerning them, Native Americans have been particularly dependent on lawyers. One emerging rule of practice has been that lawyers should be very conscious of their roles as advisors and advocates, and should not confuse them with the roles of policy- or decisionmakers whieh belong to clients. Native Hawaiians are faced

with many complex issues relating to the restoration of self-gov-ernment and the various claims of damages against the United States and the State of Hawai'i. There is probably more than one correct way to proceed on these issues. Lawyers are trained to present facts and legal theory, in a way that best supports the argumentbeing made. In a courtroom, this practice is balanced by rules of evidence, and by the arguments of the other side(s). In other arenas, advice from an advocate attorney who has a clearly delineated point of view is not necessarily balanced by other points of view or evidence. The balance or eheek is not present so the audience or client may not have an accurate basis for making decisions. If an attorney argued that recognition within the federal system is a possible way for

native Hawaiians to proceed, and did not point out the many problems encountered by Indian tribes in this system, native Hawaiians would not have a full and adequate basis for decision-making. Similarly, to advocate a selfproclamation strategy, based on the Palestinian or other experienee, without presenting the limitations of international law and forums (particularly with respect to the one remaining superpower, the United States) would also not provide native Hawaiians with a full and adequate basis for deci-sion-making. I am not dismissing international law or its potential role, but suggesting that it, like any other strategy, has pluses and minuses. Clients and decision-makers always insist on knowing the full range of consequences of any approach and not simply receive an advocate's partisan viewpoint.