Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 5, 1 May 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

\<\-x<<<vXv:v:v:vXvXv:vXvX\-:-XvXvCvXv:vX*xvXv:w:vXv:v:v:;:v:v:!X< By Paul Alexander Washington, D.C. Counsel for OHA

Recounting Micronesia's journey to sovereignty

ln an earlier eolumn on sovereignty, it was noted that sovereignty could operate in many different ways . It was also suggested that a number of different experiences should be evaluated in the quest to identify how sovereignty or self-government could evolve in the modern day context for Native Hawaiians. Although the primary American experience with self-government for indigenous populations (native peoples) has been with American Indian tribes, another experience that warrants attention is the post-World War II United Nations Trusteeship over Micronesia that the United States has administered. This trusteeship has evolved, over the past two decades, into a unique relationship known as the Compact of Free Association. Background of a trust relationship In 1947 the Islands of Micronesia, whieh had been under the jurisdiction of Japan before the war, were placed in the newly established United Nations trusteeship system. This trusteeship system had self-determination of the indigenous populations as its ultimate goal. The plan placed approximately 11 former colonies and possessions under the authority of other nations. The United States acquired the responsibility for sqme 2,000 Micronesian islands contained in approximately three million square miles of oeean. Approximately 100 of the islands were populated and contained some 130,000 Pacific Islanders of six distinct ethnic groupings, speaking nine languages. The United States was obligated to promote the political, eeonomie, and educational advancement of the inhabitants. The journey of sovereignty By most accounts, the movement from full dependency on the United States, with U.S. officials exercising ultimate jurisdiction and control over the lives of the lslanders to self determination has been difficult. The 1985 Congressional Report, recommending that the United States approve the Compacts of Free Association, describes the mulhple decade negotiations process as (( i »» arduous. Negotiation and economics Any negotiation process usually reflects politi-

eal realities and the relative strengths of the parties. Four factors seem to have been very important in affecting the United States side of the negotiation: its desire to maintain its military influence/security in the region; the growing support for self-determination in the world poliheal arena; the pending claims and lawsuits of the native population against the United States for damages (approximately $5 billion) sustained from the U.S. nuclear testing in the region; and the desire of the United States for certainty with respect to its financial obligations in the region. It is difficult to assess what role eaeh factor ultimately played in the negotiations. Even a casual evaluation of the major Native American settlements of the last several decades demonstrates the importance of the Native group's having a significant eeonomie weapon, such as a viable legal elaim against the United States, in its arsenal of arguments. Mere social/philosophic arguments rarely carry the day in negotiations. Compact of Free Association In 1985, the United Statesapproved three Compacts of Free Association: one with the Marshall Islands, one with the Federated States of Micronesia; and gave contingent approval to a compact with Palau. United Nations' officials observed plebiscites that were held on three compacts and a majority of the voters approved them. These plebiscites were viewed by the United States as "legitimate act of self-determination by the people of Micronesia." But what is a Compact of Free Association? There is no precise international law definition of such a compact. It seems to be an inter-govern-mental relationship whieh confers on the former trust territory a status somewhere between independence and commonwealth status. As far as United States courts are concerned, the former trust territories are "foreign nations" for various legal purposes. The former trust territories receive sovereignty over their domestic affairs. Full jurisdiction overall domestic issues is vested in the laws and governments of the Marshall Islands, the Federated States of Micronesia, and Palau over their respec-

tive territories. This means that United States' Iaws, courts, instrumentalities no longer control. Rights and responsibilities They receive the right to determine their own foreign policy "in consultation with the United States." They receive the commitment of the United States to defend them against external aggression as if they were part of the United States. They are eligible for foreign aid from international monetary organizations. They receive a specified level of funding for programs and activities identified in the compacts of 15 years (30 for Palau). The United Sfates pledges its full faith and credit to guarantee its financial commitments; this means that the U.S. is willing to be sued for the pledged amounts. Inflation indexes are provided. They receive services from de^ignated agencies (Postal Service, U.S. Federal Emergency Management, U.S. Weather Service, Federal Aviation Agency, etc.) and ean continue to issue U.S. currency if they choose to. They receive a financial settlement on nuclear testing claims. The United States receives the right of "strategic denial" whieh is the right to deny the airspace and territorial waters of the former trust territories to its adversaries, forever. The United States receives access to its former missile test facility for 30 years for a set fee. The United States receives contingency rights for military base(s) in Palau, if it should determine it needs such site(s). The United States received closure with respect to the claims and law suits relative to nuclear testing. There are also provisions relating to immigration status, continuation of existing educational scholarships and similar matters. The compacts are scheduled for renegotiation two years before they expire. The actual experiences of the former trust territories under the compacts will probably be followed with great interest by advocates of self determination to leam what may be useful and adaptable for other Native people.