meller Page 1 Thursday, June 21, 2001 2:19 PM PACIFIC STUDIES Vol. 23, Nos. 1/2 March/June 2000 INDIGENOUS SELF–DETERMINATION AND ITS IMPLEMENTATION Norman Meller University of Hawai‘i at Mânoa A political scientist examines the parallels between Hawai‘i and the Northern Territory of Australia with respect to statehood and the self-determination of their indigenes, including a consideration of the bases on which the indigenous right of self-determination rests and of the questions associated with its imple- mentation. In mid-1998 I was interviewed in Honolulu by an Australian legislator en- gaged in the drafting of a constitution for the Northern Territory. The expla- nation for the visit could only remotely be traced to historical happenstance —that Captain Cook introduced the Western world to the existence of both Australia and the Hawaiian Islands. Rather, the visit was attributable to the parallels between that territory’s current search for statehood within Aus- tralia’s federal system of government and Hawai‘i’s experience as the last in- corporated territory of the United States before becoming a state in 1959. I had helped to compile the supporting data necessary for the framing of Hawai‘i’s constitution, and later, after Hawai‘i’s admission, had participated in a number of the actions necessary to reshape what had been a subordinate territory into a functioning, coequal member of the American federal union. Much of this experience was related in a book I had long ago published, the contents of which constituted the reason for the Australian’s visit.1 It would perhaps be instructive for those not familiar with Hawai‘i’s long course toward statehood to know that on at least seventeen different occa- sions, starting in 1903, the Hawaii Territorial Legislature had petitioned the U.S. Congress for admission, only to be denied.2 Finally, despairing of the Congress ever adopting an Enabling Act, which would authorize the terri- tory to prepare for statehood, Hawai‘i took matters into its own hands and in 1 meller Page 2 Thursday, June 21, 2001 2:19 PM 2 Pacific Studies, Vol. 23, Nos. 1/2 —March/ June 2000 1951 presented Washington with a state constitution drawn by elected dele- gates and approved by its voters, evidence that the islands were able and ready to become a state.3 Admission followed in 1959, but only after a second plebiscite required by the Congress demonstrated that Hawai‘i’s electors ap- proved of statehood and consented to the constitutional changes demanded by the Congress. In view of the Hawaiian sovereignty movement, this history becomes pertinent because there were territorial legislators of Hawaiian an- cestry who participated in the statehood drive from its very inception.4 The percentages of Hawaiians’ votes that were affirmative or negative in the plebiscites are unknown. The Hawaiian sovereignty movement today faults the whole process for not observing the criteria of international law provid- ing for formal decolonization of non–self-governing territories and for con- tinuing to deny the indigenous population full scope of self-determination to this day.5 There are vast differences between Hawai‘i and Australia’s Northern Ter- ritory, including the cultures of the indigenous people who inhabit each and their histories of political participation. Unlike Hawai‘i, where indigenous in- habitants had a political role from the days of discovery, “until mid-20th Cen- tury Aborigines played little part in Australian politics.”6 Indeed, Aborigines lacked legal status as full citizens until then.7 But the very making of this state- ment calling attention to the differences between the areas highlights their commonality: both have sizable indigenous minorities, which provides the raison d’être for this essay. Although Aborigines comprise less than 2 percent of the total Australian population, they form a quarter of the Northern Ter- ritory’s.8 (Larger absolute numbers of Aborigines live within the boundaries of some of the Australian states, particularly Queensland, but they comprise only small proportions of the respective states’ inhabitants.) Similarly, persons of Hawaiian ancestry outside of Hawai‘i constitute only small minorities where found, even though their numbers may even exceed those within the state. Indigenous Hawaiians living in the Hawaiian Islands comprise about one-fifth of the state’s people.9 The indigenous cultures of both Hawai‘i and Australia spiritually identify with land, so for them it cannot be treated as merely an economic commodity: people belong to the land rather than the converse. Given this importance, traditional rights to land are frequently the pivotal issue around which politics turn in both areas, notwithstanding the disparities between them. During the Hawaiian monarchy the Great Mahele sought to replace the Hawaiian system of traditional land titles with one of allodial land rights.10 On the other hand, in Australia the courts are only now recognizing the existence of Aboriginal land rights. Despite this difference, the issue contributes a commonality that influences the shape of indigenous self-determination in both areas. meller Page 3 Thursday, June 21, 2001 2:19 PM Indigenous Self-Determination and Implementation 3 When I was contacted by my Australian visitor, I inquired about the steps being taken to involve Aborigines in the political process of constitutional for- mulation. The responses were evasive.11 I was mindful that the flourishing of the Hawaiian sovereignty movement occurred after statehood and has sub- sequently assumed many forms. Some of its advocates stridently demand not only internal self-government for Hawaiians but complete separation of Hawai‘i from the United States to form an independent nation.12 In view of the marginalization of Aborigines in Australia, and in anticipation of their raising objections similar to those now being voiced in Hawai‘i, after my visitor left I initially turned my attention to consideration of what might have been done differently to afford the Hawaiian Islands’ indigenous population a distinctive voice, which could suggest minimal safeguards against com- parable challenges in Australia.13 From this evolved a more fundamental question, the examination of which occupies much of the balance of my dis- cussion here: What is the compelling logic on which self-determination for indigenes rests, which, as well, underpins the process to be adopted by Pacific peoples for implementing it? Until colonialism was discredited, the metropolitan nations of the Western world had divided up between them and governed the island areas of the Pacific as colonies. After World War II, beginning with Western Samoa in 1962, one Pacific island polity after another had become either politically independent of its former administering metropolis or entered into varied relationships that enabled them to exercise augmented powers of self-govern- ment, even if not completely independent as sovereign nations. The rhetoric that accompanied this change cloaked the entire movement as being “anti- colonial” in nature, with the result that limitations on indigenous self-rule became categorized as expressions of colonialism. For Hawai‘i, this conve- niently encompasses the overthrow of the Hawaiian monarchy through the connivance of the armed forces of the United States, the short interregnum of the Republic of Hawaii while awaiting congressional action on annexation, the next half-century-plus of territorial status, and now the integration into the Union as a state.14 Meaning of “Indigenous” The history of self-determination is bound up with the history of popular sovereignty, as proclaimed by the French and American Rev- olutions ...[that] people living in a geographically distinct part of an existing state who are not content with the government of the country to which they belong should be able to secede and organize themselves as they wish.15 meller Page 4 Thursday, June 21, 2001 2:19 PM 4 Pacific Studies, Vol. 23, Nos. 1/2 —March/ June 2000 The League of Nations introduced the term “indigenous” as identifying popu- lations that required protection under the League of Nations Covenant. This term much later entered into United Nations Fourth Committee debates on decolonization.16 Subsequently a gradual consensus developed among the members of the Working Group on Indigenous Populations of the U.N. Sub- commission on Prevention of Discrimination and Protection of Minorities that indigenous peoples enjoyed a natural right of self-determination and that “as a specific form of exercising their right to self-determination, [they] have the right to autonomy or self-government in matters relating to their inter- nal and local affairs, including culture, religion” and so forth.17 But while the term “indigenous’’ has emerged, it has no accepted, established definition.18 If one were to accept the thesis that there are two basically distinctive cul- tures in the world, one of the metropolitan societies and the other indige- nous,19 Pacific peoples would fall within the latter, thereby so establishing their right to self-determination. However, this proves too facile, for it is too all- embracing. For illustration, neither the i-Kiribati resettled in the Solomon Islands by the British government before the Solomons became indepen- dent20 nor the Banabans who acquired the island of Rabi in Fiji on which to live after rapacious phosphate mining had literally consumed their original home island21 would be treated as having “indigenous” rights of self-deter- mination in their adopted island abodes. Nor would they be entitled to pro- tection as minorities against ethnic discrimination by the Solomons and Fiji governments, respectively. To take another tack and settle on a definition of “indigenous” as limited to only those who are descendants of the original inhabitants of a particular Pacific island may introduce hazardous problems for the future. Before the Maori arrived in New Zealand, it is claimed there had been other peoples resident, the Moriori (some of whom were still found in the Chatham Islands on first Western contact).