E L : j p l November 23, 1982 The Native Hawaiians Study Commission Department of the Interior 18th and C Streets, N.W. Room 6220 Washington, B.C. 20240 D e a r S i r s ; Enclosed is one copy of my comments on the Draft Report of Findings of the Native Hawaiians Study Commission. I ask that it be made part of the public record of the Commission. A lo h a , DANIEL K. IN OUYE United States Senator D K I: jm p l E n c lo s u re INO U Y E Prince Kuhio Federal Building R o o m 6104, 300 A la M o an a B oulevard H onolulu, Hawaii 96850 (808) 546-7550 United States Senate ROOM 105. RUSSELL SENATE BUILDING W AS H IN G TO N . D .C. 20510 (202) 224-3924 November 23, 1982 The Native Hawaiians Study Commission Department of the Interior 18th and C Streets, N.W. Room 6220 Washington, D.C. 20240 Dear S irs : Enclosed is one copy of my comments on the Draft Report of Findings of the Native Hawaiians Study Commission. I ask that it be made part of the public record of the Commission. Aloha, DANIEL K. INOUYE United States Senator D KI: jm p l E nclosure COMMENTS BY SENATOR DANIEL K. INOUYE ON THE DRAFT REPORT OF FINDINGS OF THE NATIVE HAWAIIANS STUDY COMMISSION NOVEMBER 23, 1982 TABLE OF CONTENTS PART I . Page A. Preliminary Statement ....................................................... 1 B. Conclusion. ............................................ .................................2 C. Summary o f A rg u m e n ts .............................................................2 H istorical Review ................................................................. 3 Legal A nalysis.......................................................................3 PART II. H istorical Review A. Methodology.................................................................................7 B. Bayonet Constitution of 1887....................................... 14 C. Role of the United States Government Relative to the Annexationists....................................... 18 D. Role of the United States Government in the Revolution of 1893.............................................. 20 E. Use of Facts.........................................................................................23 F. International Law......................................................................... 26 PART III. Legal A nalysis.............................................................................................30 PART I Pursuant to Public Law 96-565 and the September 23, Notice of The Native Hawaiian Study Commission (Commission), the following comments are submitted on the Draft Report of Findings (Report) of the Commission. The analysis and conclusions herein expressed represent my personal assessment of the Report and are in no way intended to reflect the o fficia l position of the U.S. Senate or any of its Committees. A. Preliminary Statement The Report expressly states that a "fu ll review of the history of United States relations with Hawaii is essential to an evaluation of Hawaiian native claim s," and that an (im partial) "analysis of the causes of the fa ll of the monarchy and annexation" are "crucial to this study." (p. 176). It also finds that "existing law provides no basis for compensation to native Hawaiians for any loss of lands or loss of sovereignty." (p. 243). The Commission's next step is "to consider whether it should recommend that, as a matter of policy, taking a ll of the facts of (the) Report into account, Congress should take action on compensation here." (p. 243). I agree that "a fu ll review of the history" is essential, and that im partial "analysis of the causes of the fa ll of the monarchy and annexation are crucial." - 2 - However, by its failure to meet either stated goal, the Report is, by its own standards, fatally flawed. Moreover, inasmuch as the Commission's Report was to have been a "report of findings", im partially arrived at, I question the appropriateness of selecting the Department of Justice to examine existing laws to determine whether they provide a basis for compensation to native Hawaiians for any loss of lands or loss of sovereignty. This is also true of the use of a U.S. Naval Historian to buttress the Federal Government's claim of lack of culpability in the 1893 Revolution. Aside from the question of im partiality, I also believe the Report's analysis of existing law on the question of the Government's lia b ility is faulty. B. Conclusion If the Report is adopted in substantially its present form, the cause of the native Hawaiians w ill be severely damaged. No matter what the Commission may, as a matter of discretion, recommend in terms of remedial legislation, the underlying "findings" concerning the right to re lie f of native Hawaiians w ill be so negative as to assure the defeat of any such remedial legislation. C. Summary of Argument The Report is neither a "fu ll review of the history of United States relations with Hawaii," nor an im partial -3 - "analysis of the causes of the fa ll of the monarchy and annexation” . 1) Historical Review (a) The Report is deficient in its historio­ graphical methodology and provides no new insights into outstanding historical issues. It relies almost to ta lly on secondary sources and there is no evidence of any attempt to search several major archival sources. It fails to deal with the specific adverse conclusions in the Blount report, while according equal cre d ib ility to the Morgan report, which is highly suspect because of the way in which it was prepared and because it was not unanimous. There is little attempt to place the revolution and the annexation in a larger global diplomatic context, which in turn greatly affected events in Hawaii. Furthermore, while it was in the interest of the Commission to preserve absolute objectivity in the preparation of the Report both in fact and in appearance, the assignment of a United States Government employee to w rite the history of an event in which the United States is a party of interest w ill inevitably - 4 - raise questions about its objectivity. Finally, there are several minor errors which should be c o r r e c t e d . (b) The Report fails to inquire into the possible role of the United States Government in the acceptance of the "Bayonet Constitution" of 1887, and in thwarting subsequent efforts by native Hawaiians to overturn that Constitution in 1889, and to revise it in 1890. It also fails to consider the possibility of a cause- and-effect relation between that Constitution and the fa ll of the monarchy in 1893. (c) The Report ignores the role of the U.S. Government in encouraging the annexationists (and therefore the rebellion) in 1892. (d) The Report's fundamental conclusion as to why the monarchy fe ll begs the question. It may be that the fa ll of the monarchy was "prim arily the result of a power struggle between supporters of the monarchy and the monied 'haoles'" (p. 188), but for purposes of the Report, the question should be: was the role of the U.S. Government significant or decisive to the outcome? (e) The Report's characterization of events during the crucial days in January, 1893, which - 5 - culminated in the fa ll of the monarchy and recognition of the Provisional Government, rests on a selective use of the facts regarding the activities of the annexationists, U.S. M inister Stevens, the U.S. Navy and Marines, and Queen Liliuokalani. (f) The Report fails to address the international legal issues posed by revolution and the involvement of the United States in the _ Hawaiian Kingdom's overthrow. International law attempts to prescribe certain principles of conduct and to provide a framework for the rule of law in international relations. Since Hawaii was a sovereign nation, the United States was obliged to conduct its relations with the Royal Government in accordance with accepted legal principles of the time. An analysis indicates that the United States M inister failed to do so and thereby fatally compromised the Government of the United States. 2) Legal Analysis (a) The Report's finding that there is no basis in existing law for native Hawaiians to claim compensation from the United States for loss of land or sovereignty is irrelevant. The task of the Commission was to ascertain - 6 - whether a legislative remedy for native Hawaiian claims was appropriate under the circumstances, not to try to force-fit these claims w ithin an existing legal framework. Therefore, in this respect, the Commission's focus was wide of the mark. Likewise, the claims histories of other aboriginal groups, while relevant, should not have fixed the parameters of the Commission's inquiry. A — — broader and less constrained perspective would have afforded the Commission a greater opportunity to achieve its basic mandate, namely, to ascertain whether the claims of native Hawaiians had any moral legitim acy, and, if so, what remedy should be fashioned. (b) Moreover, even if the question were in point, given its institutional bias, the Department of Justice was hardly the appropriate party to perform the legal analysis on the question of the Government's lia b ility for such claims. (c) In any event, the Report's analysis of existing law in support of its finding that there is no basis for Government lia b ility is faulty. - 7 - PART I I - HISTORICAL REVIEW A. The Report is deficient in its historiographical methodology and in historical interpretation. It is neither a "fu ll review of this history of United States relations with Hawaii," nor an im partial "analysis of the causes of the fa ll of the monarchy and annexation". 1) The Report purports to be the "most complete compilation of data and inform ation on native Hawaiians that has ever been collected in one volume." (Preface) However, its historical portions, especially the sensi­ tive Chapter II of Part II, rely almost to ta lly on secondary historical sources, principally Ralph S.