Ka Wai Ola - Office of Hawaiian Affairs, Volume 13, Number 5, 1 May 1996 — A letter from Prof. Francis A. Boyle [ARTICLE+ILLUSTRATION]

A letter from Prof. Francis A. Boyle

by Samuel L Kealoha, Jr. Trustee, Moloka'i I would like to share with you a copy of a letter received from Professor Francis Boyle whieh will clarify any confusion on the recently proposed name

change by HSEC from "PLEBISCITE" to "NATIVE HAWAIIAN VOTE," as follows: April 5, 1996 Dear native Hawaiian Friends: I believe there has developed some confusion on the question of where I might stand on the proposed "native Hawaiian vote" that is cur-

rently being organized under the auspices of the Hawaiian Sovereignty Eiections Council (HSEC). On March 5, 1995, I sent a formal opinion letter to the Honorable Pu'uhonua Kanahele for trans-

mission to HSEC on the very narrow and precisely defined question: "...whether or not the elections to be supervised by the Hawaiian Sovereignty Elections Council as described in H.B. 976 wouid constitute a genuine 'plebiscite' in accordance with the generally recognized stan-

dards of international law and practice." I answered this question in the negative for the reasons indicated in the letter. This letter was never intended to endorse H.B. 976 or HSEC to any extent. It has since eome to my attention that on or about February 12, 1996, HSEC has deleted the word

"plebiscite" and has substituted instead the words "native Hawaiian vote." Certainly the new language is preferable to the old language. But the substitution of the words "native Hawaiian

vote" for "plebiscite" directly raises the question whether or not this "native Hawaiian vote" as currently organized by HSEC will wither effectuate, or else abridge, the right of the Hawaiian people to self-determination under international law. In Public Law Number 103-150 (the socalled Apology Resolution), Section 1(3) refers expressly to "... the rights of Hawaiians to self-determination ..." In addition, a preambular clause in the Apology Resolution states quite clearly: "Whereas the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum ..." It is obvious from this Ianguage that the United States Government, Congress, and President have now officially conceded that the Hawaiian peopīe are entitied to a "plebiscite or referendum" in order to exer-

cise "the rights of Hawaiians to self-deter-mination." My March 9, 1995 letter clearly states the four necessary preconditions for the Hawaiian people to exercise their right of self-determination under international law and practice. Quite obviousIy, H.B. 976 as originally drafted and also as currently amended to refer to a "native Hawaiian vote" does not fulfill any one of those four necessary preconditions. Under these circum-

stances, you must understand that if you go forward with this "native Hawaiian vote" as currently organized by HSEC, there exists a very high probability that U.S. eolonial occupation officials in Hawai'i and Washington D.C., together with their supporters and sympathizers, will publicly proclaim that the HSEC "native Hawaiian vote" constituted a valid exercise of the right to self-determination by the Hawaiian people and therefore that the Hawaiian people have no further right to "a plebiscite or referendum: as required by international law and as recognized by the Apology Resolution. In other words, by going forward with HSEC's "native Hawaiian vote," the odds are quite high that you will be unjustly deprived of your right to "a plebiscite or referendum" and thus ultimately deprived of your "rights to self-determination" as required by international law and as recognized by the Apoiogy Resoiution. Therefore, I must respectfully recommend in the strongest terms possible that you insist upon exercising your right to self-determination only by means of a "plebiscite" as defined by my March 9, 1995, Ietter. The United States Government, Congress, and President have already conceded that you are entitled to a "plebiscite or referendum" in order to exercise your "rights to self-determination." You must never agree to or go along with anything less than this. Otherwise, you risk losing your now internationally recognized "inherent sovereignty as a people." May God always be with you. Yours very traly, Francis A. Boyle Professor of International Law University of Illinois at UrbanaChampaign