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The Commerce of Recognition (Buy One Ethos, Get One Free): Toward Curing the Harm of the United States’ International Wrongful Acts in the Hawaiian Islands THE COMMERCE OF RECOGNITION (BUY ONE ETHOS, GET ONE FREE): TOWARD CURING THE HARM OF THE UNITED STATES’ INTERNATIONAL WRONGFUL ACTS IN THE HAWAIIAN ISLANDS Julian Aguon ‘Ohia A Periodic Publication of Ka Huli Ao Center for Excellence in Native Hawaiian Law Mahalo nui loa to Kamehameha Schools for supporting Ka Huli Ao’s Post-Juris Doctor Research Fellowship Program, which enables recent law graduates to conduct cutting-edge research and produce new scholarship on issues that impact Native Hawaiian law and the Native Hawaiian community. The Fellows’Acknowledgements papers are published as part of Publication of Ka Huli Ao Center for Excellence in Native Hawaiian Law. The name ‘Ohia was inspired by a line from a chant for Kalākaua: ‘ohia mai ā pau pono nā ‘ike kumu o Hawai‘i, gather up every bit of the basic knowledge of Hawai‘i. 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THE COMMERCE OF RECOGNITION (BUY ONE ETHOS, GET ONE FREE): TOWARD CURING THE HARM OF THE UNITED STATES’ INTERNATIONAL WRONGFUL ACTS IN THE HAWAIIAN ISLANDS Julian Aguon ‘Ohia: A Periodic Publication of Ka Huli Ao Center for Excellence in Native Hawaiian Law THE Commerce of Recognition (BUY ONE Ethos, Get ONE FREE): Toward Curing the Harm of the United States’ International Wrongful Acts in the Hawaiian Islands Julian Aguon1 I. Introduction II. THE HARM A. 1893 Overthrow of the Government of the Kingdom of Hawai‘i B. 1898 Annexation of Hawai‘i C. 1959 Removal of Hawai‘i from the U.N. List of Non-Self-Governing Territories III. Curing the Harm A. Occupation/Deoccupation 1. The Law of Occupation 2. Proponents of Deoccupation/State Continuity Theory in Hawai‘i 3. Hurdles: Doctrine of Inter-temporal Law; Underdeveloped State Practice and Redress Mechanisms; Limited Analogical Import of the Baltic Cases; War; U.S. Hegemony in the United Nations Security Council; Montevideo Criteria and Effectiveness a. Doctrine of Inter-temporal Law b. Underdeveloped State Practice and Redress Mechanisms c. Limited Analogical Import of the Baltic Cases d. War e. U.S. Hegemony in the United Nations Security Council f. Montevideo Criteria and Effectiveness B. Colonization/Decolonization 1. Self-Determination 2. Proponents of Decolonization in Hawai‘i a. Analysis of 1959 political status “plebiscite” in Hawai‘i 1 Post-Juris Doctor Research Fellow, 2010–11, Ka Huli Ao Center for Excellence in Native Hawaiian Law, William S. Richardson School of Law, University of Hawai‘i at Mānoa. The author is indebted to Maivân Clech Lâm, whose mentorship in international law has been an enduring source of intellectual and moral nourishment. The deepest of thanks also to: Melody MacKenzie, Susan Serrano, and D. Kapua‘ala Sproat, of the Ka Huli Ao Center for Excel- lence in Native Hawaiian Law, for their invaluable fellowship and support; Uncle Kekuni Blaisdell, a kupuna who wrapped his arms around me years ago, imparting wisdom along the way; Jaha Cummings, for his ever-thoughtful counsel as to the animating principle of this paper; and Ronald Reyes Gogo, for the love that made this and so many other pieces possible. 3. Advantages and Disadvantages a. Well Developed Practice and Redress Mechanisms b. The United Nations General Assembly: A Friendlier Forum c. “Colonial Accommodation” at the United Nations C. Indigenization/Indigenous Rights 1. Who are indigenous peoples? 2. 2007 U.N. Declaration on the Rights of Indigenous Peoples 3. Is the 2007 Declaration binding? 4. Emerging Practice IV. The AKAKA Bill: Cure or Placebo? A. The seduction of federal Indian law 1. Exceptionalism and the political classification doctrine 2. Rice v. Cayetano B. Akaka Bill 1. The bill itself 2. The double-edged sword of the political classification doctrine 3. Effect of federal recognition on international legal claims V. The Commerce of Recognition (Buy One Ethos, Get One Free) Tell the children the truth. —Bob Marley I. Introduction In light of the potential passage in the U.S. Congress of the Native Hawaiian Government Reorganization Act (“Akaka Bill”),2 many complicated international legal and political issues remain in dire need of resolu- tion. One important unresolved issue concerns the possible implications of the Akaka Bill’s passage on the various international legal claims inhering in Native Hawaiians and other heirs of the formerly internation- ally recognized independent state of Hawai‘i as a result of a series of international wrongful acts committed by the United States beginning with the overthrow of the lawful government of the Hawaiian Kingdom and later annexation and incorporation, under U.S. law, of the territory of Hawai‘i into the U.S. union in the late 1800s. There is, in other words, the real possibility that the Akaka Bill, or some variant of it, may inadver- tently disinherit Native Hawaiians and other kingdom heirs (henceforth “collective heirs”) of their interna- tional legal claims against the United States. In addition, the bill may have additional adverse implications for Native Hawaiians specifically inasmuch as it may prematurely curtail the full panoply of rights norma- tively available to indigenous peoples under international law via the 2007 United Nations Declaration on the Rights of Indigenous Peoples.3 In the rush to presumably insulate so-called “race-based” programs from constitutional race challeng- es—a task that took on seeming urgency in the wake of the U.S. Supreme Court’s decision in Rice v. Cayeta-
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