Ka Wai Ola - Office of Hawaiian Affairs, Volume 29, Number 4, 1 ʻApelila 2012 — International law and federal recognition of the Hawaiian nation [ARTICLE+ILLUSTRATION]

International law and federal recognition of the Hawaiian nation

Trustee's note: Tlūs month, I've asked Makana Risser Chai to summarize an important law reviev,> article.

Professor Julian Aguon, formerly of Ka Huli Ao Center for Excellence in Native Hawaiian Law at UH, wrote The Commerce of Recognition on international law and federal recognition. Aguon identified three theories of international law but thinks only one is potentially viable. The occupation/deoccupation theory, pursued by Keanu Sai, Ph.D., and others, holds that Hawai'i remains an independent

country that has been illegally occupied by another country. Aguon identifies five problems with this theory. (1) The invasion and overthrow were not illegal under international law at the time, therefore could not be redressed today. (2) Even if they were illegal, the law of occupation is illequipped to provide redress. (3) The case of the Baltic states of Latvia, Lithuania and Estonia are not analogous to Hawai'i, for five reasons. (4) This theory only applies when the two countries were at war, but the U.S. never was at war with Hawai'i. (5) Assuming they were illegal, Hawai'i must seek redress from the U.N. Security Council, where the U.S. has a veto. A second theory is the indigenization/ indigenous rights theory. The advantage of this theory is that Hawaiians do have rights under the United Nations Declaration on the Rights of Indigenous Peoples. The disadvantage is that the declaration is nonbinding at this time. Aguon believes the colonization/decolonization theory is the best for Hawai'i. He points out that in 1946 Hawai'i was placed on the United Nations list of colonies slated for decolonization. It was wrongly removed in 1959 because the statehood plebiscite, or vote, failed to comply with international standards: only descendants of the kingdom's citizens should have been allowed to vote. The professor points out that the advantage of this approach is that there is a

well-developed mechanism for putting colonies back on the list and having new plebiscites. The forum is the U.N. General Assembly where the U.S.

has only one vote (out of 193). In addition, there is international momentum in this direction as the U.N. announced a Third International Decade for the Eradication of Colonialism in January 201 1. In contrast, Professor Aguon believes there are problems with seeking federal recognition under the Akaka bill or other process. He believes federal recognition is unnecessary, because the case Rice v. Cayetano applies only to voting, not to Hawaiian entitlements. In addition, he points out

that because Indians are exempt from the 14th amendment, they also are not protected by it. Courts have denied Indians rights as a result. As he says, "What Congress giveth, it ean taketh away." Aguon also notes that the Apology Resolution passed by Congress in 1993 would be considered an admission by the U.S. under international law. But if Hawaiians go for federal recognition, they could be seen as acquiescing in the U.S. colonization and thus waiving the protections of the Apology Bill and international law. Professor Aguon concludes, "if and when Kānaka Maoli employ this tool called law, U.S. or international, they should take great care to bring to the project their full cultural selves, i.e., their integral indivisible sense of what it means, in the very core of their individual and collective psyches and spirits, to be Kānaka Maoli. While one of their eyes ean be on the prize of legal redress, the other eye must stay unflinchingly fixed on what most matters - eaeh other, the children, the ancient ones, the bird, moon, sea - as known and loved in a uniquely Kānaka Maoli way, whieh would refuse the sacrilege of flabbily settling for 'the best we ean get.' "■ To comment on this or any other issue of eoneem, feel free to contact me on twitter @PeterApo, Facebook/Peter Apo or PeterAOHA@gmail.com.

PetEr Apo Vice Chair, Trustee, O'ahu