SPEECH OF SENATOR DANIEL K. AKAKA BEFORE THE KUKAHI COALITION Center for Hawaiian Studies University of Hawaii November 21, 1998 Aloha kakahiaka. It's an honor and with pride as a Hawaiian to be here today to share my thoughts with you. I thank the Kukahi Coalition for recognizing the upcoming 5th anniversary of Public Law 103-150, the joint resolution which offers a U.S. apology to Native Hawaiians for the 1893 overthrow of the Kingdom of Hawaii. Since the enactment of Public Law 103-150 by President Clinton on November 23, 1993, a lot of questions and issues have arisen. Let me say at the outset that I welcome the continuing discussion of the ramifications of the Apology Resolution, whether it be support or criticism. The Apology Resolution has sparked debate about the political and legal issues surrounding the 1893 overthrow. I understand that the Hawaii Advisory Committee to the U.S. Commission on Civil Rights held an all day hearing on August 22 at the East-West Center and will issue a report on the proceedings. As far as I'm concerned, I couldn't have asked for more. The criticisms I hear about the Apology Resolution lacking substantive legal authority or causing divisiveness do not affect my belief that it was the right thing to do. I look at the Apology Resolution as the first step toward healing, not creating new barriers. It is all a matter of perception. It is my hope that the measure will be perceived in a positive light to foster positive change for the future. Fifty years ago, people scoffed at a United Nations document on human rights because they said it lacked binding legal force. On December 10, 1998, the world will proudly commemorate this document's 50th anniversary. The document is the Universal Declaration of Human Rights. While aspirational in intent, the declaration continues to be used by policymakers and human rights advocates as leverage against oppressive governmental policies and actions and many of its provisions have been incorporated into international treaties and national constitutions. Should I be displeased that the Apology Resolution aspires to improve our relationship with the federal government? Certainly not. Should I be displeased that the Congress and the President of the United States are on record as implying U.S. liability for the 1893 overthrow of Queen Liliuokalani as a result of the Apology Resolution? Certainly not. Should I be displeased that reconciliation efforts were not clearly defined in the Apology Resolution so that we will have a continuing opportunity to provide input? Certainly not. As I have said repeatedly, the goals of the Apology Resolution were to educate the Congress and the American public on the overthrow of the Kingdom of Hawaii, provide a continuing forum for discussion, and lay the foundation for reconciliation efforts between Native Hawaiians and the federal government. Reconciliation efforts were never intended to be unilaterally determined by the federal government. Rather, it was intended to be an evolving process determined in conjunction with Native Hawaiians and with Hawaii's Congressional delegation. To understand the impetus of the Apology Resolution, we must understand the context in which it was considered and passed. During the 1980s and 1990s, there have been many impediments at the federal level which have stymied Congressional consideration of political status for Native Hawaiians and Hawaiian land issues. The most damaging action occurred in 1983 when the Native Hawaiian Study Commission Majority Report concluded that the U.S. government was not liable for the loss of sovereignty or lands of the Hawaiian people in the 1893 overthrow. This was coupled with a flip-flop by the U.S. Department of Interior on the political relationship between Native Hawaiians and the federal government. Under the Carter Administration, Interior's position was that there was a trust relationship between Native Hawaiians and the federal government under the Hawaiian Homes Commission Act. This position was repealed in 1989 by the Bush Administration and further attacked during the 1990 to 1993 period when the Apology Resolution was considered by Congress. During the final days of the Bush Administration, on January 19, 1993, a damaging legal opinion was issued by the Interior Department Solicitor's Office, known as the Sansonetti opinion. The Sansonetti opinion concluded that the federal government "had no trust responsibilities to the native Hawaiians either before Statehood or thereafter" and that the Hawaiian Homes Commission Act "did not create a fiduciary responsibility in any party, the United States, the Territory of Hawaii, or the State of Hawaii." The legal opinion was notable for its timing, the end of an Administration, as well as its reliance on the 1983 Native Hawaiian Study Commission Majority Report's conclusions. The Interior opinion went as far as to say, "Our analysis in this opinion is in basic agreement with the conclusions of the Study Commission majority." On November 15, 1993, the Interior Department under the Clinton Administration rescinded the Sansonetti opinion through its Solicitor, John Leshy. However, due to pending litigation at the time, the Department did not enunciate any new policy. Instead, it simply withdrew all of its legal opinions on whether or not the federal government had a trust relationship with Native Hawaiians, including an August 27, 1979 opinion, drafted under the Carter Administration, which acknowledged that a trust relationship existed. Thus, as can been seen by the way we were being treated by the Executive Branch, I believe that the enactment of the Apology Resolution on November 23, 1993, was timely and necessary in that it leveled the playing field between Native Hawaiians and the federal government and it has provided us with an opportunity to shape the debate about our relationship. The question, therefore, is how do we as Native Hawaiians shape the process of reconciliation. I don't think you or I would be here today, or that the August 22 U.S. Commission on Civil Rights hearing would have been held, if we as a people did not have a desire to have our voices heard in the process. What we must ask ourselves is how best can we move forward on reconciliation. As far as I'm concerned, efforts toward this end have already begun. It began with the 1994 return of Kahoolawe, the 1995 Hawaiian Home Lands Recovery Act, and the 1997 decision by the Office of Management and Budget to create a new federal category for Native Hawaiians and other Pacific Islanders for civil rights compliance and statistical and administrative reporting. These efforts continue to be reflected in consideration of U.S. policy on the U.N. Draft Declaration on the Rights of Indigenous Peoples and the Clinton Administration's yet to be defined policy toward Native Hawaiians. Reconciliation should not be viewed as one particular issue or a narrowly defined process. It should be viewed as a multitude of positive steps between Native Hawaiians and the federal government to improve the understanding between each party, to improve the social and economic conditions of Native Hawaiians, and to resolve longstanding matters of political status and land claims. The most difficult challenge, of course, is self-determination. To achieve this goal, I think it is important for us to understand the mechanisms available to Native Hawaiians as indigenous peoples. Out of the five indigenous groups under U.S. jurisdiction - American Indians, Alaska Natives, Native Hawaiians, American Samoans, and Chamorros - Native Hawaiians are the only group who are denied the right to self-determination under current law. American Indians and Alaska Natives can avail themselves of the federal recognition process at the Interior Department's Bureau of Indian Affairs. Other means to obtain federal recognition for these two groups have included past treaties, Presidential executive orders, statutes, and case law. The Indian Commerce Clause of the U.S. Constitution also provides Congressional plenary authority over Indian affairs. Under international law, as citizens of non-self-governing territories, American Samoans and Chamorros have self-determination rights to pursue full sovereign independence from the United States, seek free association with the United States, or seek integration with the United States. The Territorial Clause of the U.S. Constitution also provides Congress with the plenary authority to consider their wishes for self-determination, although it is disputed whether Congress can limit the right to self-determination to only indigenous groups without triggering Equal Protection Clause challenges. Recognizing that no mechanism of self-determination exists for Native Hawaiians is necessary in planning for our future. In a speech that I delivered last July at the U.S. State Department on the U.N. Draft Declaration on the Rights of Indigenous Peoples, I called attention to the lack of self-determination process for Native Hawaiians and challenged U.S. policymakers to consider various ways to deal with Native Hawaiians. I called on the U.S. State Department to establish a U.S. Advisory Committee on Indigenous Rights to be composed of tribal leaders and distinguished indigenous peoples and individuals with expertise in the fields of human rights law, international law, foreign affairs, environmental and natural resources law, Federal Indian law, Native Hawaiian rights, insular affairs, and constitutional law. I called for the appointment of a Special Advisor on Indigenous Rights to the Domestic Policy Council at the White House. This individual will be responsible for coordinating U.S. policy among federal agencies and will work with the U.S. Advisory Committee on making recommendations to the President and the Departments of State, Justice, and Interior on the rights of indigenous peoples. One goal of the Special Advisor is to coordinate U.S. policy on the Draft Declaration. A second is to make recommendations on improving relations between the federal government and indigenous peoples in the United States. Third, the Special Advisor is to implement specific plans for increased U.S. involvement on commemorating the International Decade of the World's Indigenous Peoples, including greater participation of tribal leaders and Pacific indigenous peoples. Lastly, I said there should also be established within the Department of Interior a designated official to address the political status of Native Hawaiians and to coordinate with the Congress on potential remedies. Ultimately, I believe, the only way to remedy the lack of self-determination rights for Native Hawaiians will be through Congressional action. However, Congress cannot do this alone. Executive Branch consultation with Native Hawaiians is a necessity. Therefore, I ask you to support me in my efforts by writing to Interior Secretary Bruce Babbitt and Attorney General Janet Reno to request that the Clinton Administration designate an official to work with us on political status and ceded lands issues. But let me be honest with you so that I do not inadvertently raise false hopes. It is clear from the history of U.S. policies toward Native Hawaiians that the burden will be on us to effect positive change. I will continue to do my best to engage the Departments of Interior, State, and Justice on Native Hawaiian issues and the U.N. Draft Declaration on the Rights of Indigenous Peoples. I remain concerned, however, about two things - the misuse of the Apology Resolution by some Native Hawaiians and the disunity of our people. The Apology Resolution was never intended to be used as the basis for disobeying local, state, and federal laws. I do not support any individual or organization that uses the Apology Resolution for personal benefit or gain. The 1893 overthrow affected Native Hawaiians as a class of people. As such, the remedy for this injustice must be determined collectively. Anyone who willfully violates laws based on the Apology Resolution will be personally accountable for his or her actions. On the issue of disunity, the local challenge that we face on self-determination is the need to respect diverse views within the community. We cannot move forward as a people if Hawaiian leaders continue to show disrespect for each other. I believe that each organization that advocates a form of self-governance should do what it believes is best for the Hawaiian people while respecting other viewpoints. Diversity of views is healthy. Animosity is not. Through continuing discussions, I am confident that Native Hawaiians will determine the best course of action. Whether it be through some form of self-governance or an alternative method of redressing past wrongs, I know that justice will prevail. We have worked too hard and are too concerned about the future of our children to sit by idly. I encourage everyone here today to imua and to contribute individually and collectively to helping the cause. Unity among our people can only occur if we have the moral will to rise above our differences and reach a common understanding of what is in the best interests of our people. Kulia i ka nu'u. Reach for the best. On a more personal level, we also face the struggle to reconcile our Hawaiian cultural values with the other ethnic nationalities which comprise some of our identities. Hawaii is a multi-cultural state. In our efforts to revitalize the Hawaiian culture, we need not disavow other cultural identities in order to strengthen the Hawaiian values within ourselves. As the world continues to rapidly change, both culturally and technologically, it requires us to search deeply into our culture and to preserve it while learning and respecting what other cultures have to offer. Aloha does not differentiate between cultures. I am certain that what we are all striving for, apart from justice, is the protection of our natural resources and environment and a bright future for all children of Hawaii. In concluding, I once again thank the Kukahi Coalition for inviting me to speak today and for commemorating the 5th anniversary of the Apology Resolution. I encourage everyone to continue to pursue what is in the best interests of our people and to keep the struggle alive. Kulia i ka nu'u! Mahalo nui loa and God bless you.