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Restitution & Reconciliation Arrow Vol 1 No 2 Contents
About borderlands Volume 1 Number 2, 2002

 

Restitution as a Precondition of Reconciliation:
Native Hawaiians and Indigenous Human Rights



Haunani-Kay Trask
University of Hawai’i

 

1. As we depart one of the most violent and deadly centuries in the history of the world, questions of truth, reconciliation, and restitution have begun to appear in public forums, some with all the juridical structure of international tribunals. It is as if some deeply human yearning for peace has spawned an international quest for justice. In the South African case, a Truth and Reconciliation Commission brings perpetrators and their victims together where guilt is established and a resolution in the form of absolution and escape from punishment is granted to confessed criminals.

2. The stated purpose of these forums is more than the discovery of truth and securing of amnesty. Disclosure and exposure, in a public, communal sense, as well as a private, individual sense, are a part of South Africa’s goal (and hope) of healing. Unquestionably, such an experiment is unique, indeed, daring. There is, of course, no meting out of retributive justice if one bares all. But what of reconciliation between peoples? As African novelist and Nobel laureate, Wole Soyinka, has argued in his elegant book, The Burden of Memory, The Muse of Forgiveness,

This risk-free parade of villains, calmly - and occasionally with ill-concealed relish - recounting their roles in kidnappings, tortures, murders, and mutilation, at the end of which absolution is granted without penalty or forfeit, is either a lesson in human ennoblement, or a glorification of impunity. (Soyinka 1999: 28-29)

3. Soyinka fears that responsibility and justice are eroded by the price of truth and reconciliation. For him, and for many of apartheid’s victims, neither peace nor justice is served by mere public disclosure. Soyinka is not alone. Political parties, such as the Inkatha Freedom Party, have encouraged efforts by whites to redress injustices through contributions to monetary funds established to assist apartheid victims. And Pan African Congress Secretary-General Thami Plaatjie has said, "It is high time that the broader white community embraced such an initiative. It serves no purpose to confess, if it is not accompanied by reparations. Mechanisms of atonement should be implemented." (The Star, 10 December 2000)

4. As might be expected, many Native South Africans support criminal court proceedings with punishment for the guilty. For them, monetary reparations are separate from, and thus cannot substitute for, punishment. It may be that retributive justice, that is, punishment of criminals by tribunals and courts, is the only possible prerequisite to South African reconciliation. And perhaps, not even that.5. In terms of the international community, the right to obtain financial compensation for a human rights abuse and to have the perpetrator of such an abuse prosecuted and punished is itself a fundamental human right that cannot be taken from a victim or waived by a government. The Universal Declaration of Human Rights and the American Convention on Human Rights, among other international legal instruments confirm that victims have rights to remedies, including compensation. (Lillich and Hannum 1995: 17-22)

6. It is apparent that courts appreciate, perhaps more than governments, that the yearning for justice is not soothed by the granting of amnesties. This is why Soyinka fears the South African experiment. He understands how the dangerous moral and political dilemma for South Africa is that confession with the promise of amnesty is an injustice to victims, and an impediment to the healing of the nation.

7. In Soyinka’s words, "the problem with the South African choice is therefore its implicit, a priori exclusion of criminality and, thus, responsibility." (1999: 31) Truth, unfortunately, is clearly more central to the South African Commission than justice, which Soyinka astutely judges the first condition of humanity. Murderers who simply confess, knowing they will not suffer for their deeds, have no compunction against murdering again. Already the behavior of freed white supremacists suggests the Truth and Reconciliation process will not render enduring peace. (The Independent, 17 December 2000)

8. Soyinka’s troubled ruminations on the South African experiment are pertinent to any investigation of the current global move toward addressing historical injustices. Who will judge which injuries of war - for example, internment, forced marches, sex slavery - and which injuries of imperialism - for example, removal, plunder, and genocide - deserve reparation and restitution? And before there are any judgments of this magnitude, why are some peoples, in the words of Noam Chomsky, accorded the status of worthy victims, while others, say indigenous peoples and sex slaves, are treated as unworthy victims, whose suffering and historical subjugations are of lesser stature, and therefore of lesser consequence, than that of state-acknowledged worthy victims? (Chomsky and Herman 1988: 37-86)

9. Everywhere in the world, human rights violations against indigenous peoples and women are increasing but national and international investigations regarding them lag far behind. Even in the category of "worthy victims," some are more worthy than others - say, Japanese internment victims over Aleutian internment victims during World War II - both in the sense of newsworthy and in the sense of receiving equal treatment.

10. The case of Native Aleuts is particularly grievous. After Japan attacked the two westernmost Aleutian islands, Kiska and Attu, the American government ordered military evacuation of the Aleuts. They were removed to unheated, crowded barracks and vacant buildings, and left without adequate medical care. As a direct result of their ordeal, ten percent or more of the Aleuts died in captivity. At war’s end, the Aleuts were only haphazardly and slowly returned to their islands where their houses had been looted by the Americans. Some of the stolen materials included irreplaceable sacred objects.11. To address the issue of both internments, the U.S. Congress passed the Civil Liberties Act of 1988 in which a formal apology was made to the interned Japanese and Native Aleuts. But in the Japanese case, $20,000.00 was awarded to each internee while only $12,000.00 was awarded to each Native Aleut. (Brooks 1999: 206-16) More importantly for Native Aleuts, public recognition of their injury and American political acknowledgement of wrongdoing was but a minor sideshow to that received by the Japanese, including a monument on the mall in Washington, D.C.

12. The Aleutian and Japanese internment cases reveal how discussions of reparation, restitution, and apology are framed more by political than ethical or moral considerations. Certainly, the successful reparation effort by interned Japanese is a testament to the dedicated and intelligent political organizing done by Japanese Americans. But such success is also a result of the colonial reality of Japanese Americans as settlers rather than indigenous peoples. Ideologically as well as politically, it is far easier for the United States government to address, in a public and official manner, the forcible internment of one of the most successful settler groups in America than it is for the same government to render equal acknowledgement of mistreatment of an indigenous nation. It is telling that partially repairing injury to Japanese Americans reinscribes the American ideology of equality among settlers while recognition of harm done to indigenous peoples not only contradicts the dominant "immigrant" paradigm but raises prior issues of responsibility for genocide against Native peoples.

13. As conquered nations, indigenous peoples were forced to become Americans. Our national status, then, is a result of subjugation, not choice. This indisputable history is critical because, as universally acknowledged, citizenship must be freely chosen or it is meaningless in terms of representing the interests and binding the loyalty of citizens. And while our lands of origin have been collectively renamed the United States of America, indigenous peoples are now classified by the Federal American government as "Native Americans," a nonsensical category which tells worlds about our contradictory status.

14. Given the primacy of homeland, of the place where Native people understand an ancestral sense of belonging, identification as "American" has no correspondence to any cultural, familial, or tribal origins. The Lakota, for example, are Native to the Black Hills; the Anishnabe, are Native to the Northern woodlands of Minnesota; and my people, the Hawaiians, are Native to the Pacific archipelago of Hawai‘i. We are not Native to a recent creation called the United States of America. Rather, we are aboriginal to a specific land base which defines us linguistically, geographically, and historically. As indigenous peoples and nations, our ancestral attachments are prior to colonial categorization as "Americans."

15. To assert national differences between Native peoples of the Americas is no more contradictory than the assertion that Tahitians are not French, and Okinawans are not Japanese. If language is taken as but one marker of peoples, then it is telling to learn that some 2,000 languages once characterized the Americas where, by conservative estimate, some 75 million to a hundred million Natives lived at contact. (Stannard 1992: 11) In the same way that the French are both a people and a political entity defined by a particular land base, language, and culture, so too, Native nations are identified by different languages, lands, and cultural distinctiveness. In international human rights terms, indigenous peoples have claims to self-government, then, because we are the first nations of the land.

16. Given this aboriginal as opposed to settler history of Native peoples, it should be obvious that no reconciliation between the American government and indigenous peoples can be achieved without a return to nationhood. Restitution, in other words, must be a precondition for reconciliation. And that restitution process must surely begin with self-government, then move on to land and water, and finally proceed to the repatriation of Native artifacts, and compensatory educational, health, and other programs.

17. For Native nations, the paramount issue is the return of Native people to their Native place. Unlike Japanese internment victims, land is the key to reconciliation - if there is to be any reconciliation - between Native peoples, colonial governments, and the larger settler society.

Indigenous Human Rights


18. When in conflict with colonizing powers, such as the governments of North and South America, Native peoples have increasingly come to argue in the language of indigenous human rights. Individual civil rights - the kind common to modern constitutions - are inadequate to enunciate indigenous claims to land, language, self-government, and religious practices such as protection of sacred sites. But these do appear as protected human rights in the United Nations Draft Declaration on the Rights of Indigenous Peoples.

19. Framed by, and for indigenous peoples, the Draft Declaration is the embodiment of the values and goals of Native peoples. A product of twenty years’ work in the international arena by indigenous peoples themselves, the Draft Declaration illustrates the widest scope of indigenous human rights. (Venne 1998)

20. Most critically, indigenous peoples are defined in terms of collective aboriginal occupation prior to colonial settlement. Here, indigenous peoples are not to be confused with minorities or ethnic groups within states. Thus "indigenous rights" are strictly distinguished from "minority rights." The numbers of indigenous peoples, therefore, does not constitute a criterion in their definition.

21. The difference between indigenous peoples and minorities turns, in part, on the critical identification of historical continuity such as occupation of ancestral lands; common ancestry with original occupants of these lands; culture, including such things as dress, religion, and membership in traditional communities; and finally, language. These distinctions are of first order importance because, under international law, minorities, unlike indigenous peoples, do not have the right to self-determination.

22. Political self-determination is tied to land rights and restitution. The doctrine of "discovery" by which the Americas, the Pacific and so many other parts of the world were allegedly "discovered" is repudiated. And the companion doctrine of "terra nullius" is identified as legally unacceptable

23. A cursory overview of the Draft Declaration reveals the following:

In Article 1: "Indigenous peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms recognized in the Charter of the United Nations, and the Universal Declaration of Human Rights…"

In Article 3: "Indigenous peoples have the right of self-determination…"

In Article 5: "Every indigenous individual has the right to a nationality."

In Article 6: "Indigenous peoples have the right to live in freedom, peace, and security…"

In Article 7: "Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide…"

In Article 8: "Indigenous peoples have…the right to identify themselves as indigenous and to be recognized as such."

In Part V, Articles 21 and 23: "Indigenous peoples have the right to maintain and develop their political, economic, and social systems, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities."

Part VI of the declaration is often thought to be the most controversial to existing nation-states because land rights and restitution are addressed. The doctrine of Terra Nullius, i.e. the "vacant land" argument used by Europeans who colonized the Americas, Australia, and other lands, is repudiated as an unacceptable legal doctrine. It is in this part of the Declaration that aboriginal peoples find a strong basis from which to argue that traditional lands should be restored to them.

In Article 26: "Indigenous peoples have the right to own, develop, control and use the lands and territories…they have traditionally owned…"

In Article 27: "Indigenous peoples have the right to restitution of the lands, territories and resources which they have traditionally owned, or otherwise occupied or use, and which have been confiscated, occupied, used or damaged without their informed consent"

In Part VII, Article 31, the Declaration states: "Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy and self-government."

Tellingly, these rights, and others, are considered in Part IX to "constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the world."

Dominant Ideologies and Reparations

24. The codification of human rights is part of a growing move to frame restitution issues in terms of an international morality. Human rights, and not simply civil rights, are becoming the standard for considerations of global justice. South Africa is but the most recent and best known example of this evolution.

25. Regarding indigenous peoples, however, justice lags far behind legal codification. Another way to understand this, at least in the American context, is to ask why, beyond questions of effective organization and public relations, restitution appears more defensible and therefore much more likely when the injured are non-Natives.

26. If we return to the issue of public morality, it becomes increasingly obvious that political systems move to compensate for injustices only when they are framed within a country’s national ideology. Regarding the United States, that dominant ideology is a settler ideology: "we are all immigrants." The notable exceptions to the "immigrant" paradigm are Native peoples and African-Americans. The latter did not voluntarily migrate but were forcibly transported from Africa to become slaves in the United States. Indigenous peoples became Americans through relentless, genocidal conquest. The historical and contemporary realities of both African Americans and Native peoples, then, undercut the official ideology that the United States is a nation of immigrants. This explains, in part, increasing political resistance in the United States to Black reparations. Among other problems, acknowledging the "debt" owed to African Americans contradicts and therefore undermines the official ideology of the United States as a "nation of immigrants."

27. In the case of reparations by Germany to the state of Israel for the Nazi Holocaust, the operative ideology is that modern Germany is once again an accepted member of Western civilization in good standing. This standing was bought, in part, through the reparation process. Israel is now, like the United States, a settler state and a member of Western civilization in the non-Western Middle East. From this perspective, payment to Israel ensures, in part, the return of Germany to the Western family of nations.

28. The Roma people, by contrast, are not considered by established Western governments to be family members in good standing. They are, in truth, a stateless people in a world of competing nation states. As the much maligned "vagabond, thieving Gypsies" of Europe, the Roma are "unworthy victims," in Chomsky’s words. (Chomsky and Herman 1988: 31)

29. Given their little known history, it is instructive to learn how similar to the Jews was the horrific suffering of the Romani during the Holocaust. In 1941, Reinhardt Heydrich’s directive which, according to scholar Ian Hancock, "set the machinery of the Holocaust in motion," ordered the eradication of "all Jews, Gypsies, and mental patients." (Hancock 1999: 68)

30. The German effort to eradicate Gypsies began in 1721, 220 years before Hitler. In 1835, German scholar Teodor Tetzner described the Roma as the "excrement of humanity." In 1886, according to Hancock, Otto von Bismarck called for "especially severe" treatment of Roma, and by 1905 a Gypsy Book complied by the Germans listed all known Roma throughout Germany. Referred to as "pests" and a "plague," the Roma were forbidden to enter public facilities such as parks, were required to be photographed and fingerprinted, and were incarcerated whenever the state deemed it necessary. (Hancock 1999: 69-70)

31. From 1934 on, Roma were selected for sterilization by injection or castration and sent to death camps at Dachau and elsewhere. According to Hancock "the first mass genocidal action of the Holocaust took place at Buchenwald, where 250 Romani children were used as guinea pigs to test the Zyklon-B crystals later used in the gas chambers at Aushwitz-Birkenau." By 1945, Hancock reveals, between a million and 1.5 million Roma, perhaps half of all Roma in Nazi-controlled Europe, had perished in the Porrajmos, i.e. the Devouring, as the Holocaust is called in Romani. (1999: 70)

32. If the magnitude of Gypsy suffering reveals that they, like the Jews, were part of the "final solution," they have not been part of the effort at reparation, either by the Swiss or the Germans. This condition of non-recognition undoubtedly stems from the relatively small number and lack of statehood of the Romani. Jews, by contrast, not only number in the millions but are well-organized and well-funded. Perhaps most importantly, in terms of ideology, Jews are perceived as "worthy victims" who, as testament to their worthiness, are no longer stateless, unlike the Romani.

33. The Romani case illustrates how political ideology - that thick layer of beliefs and justifications which bind citizens to nations - frames legitimacy. If, for example, the United States is a nation of immigrants, as the national ideology dictates, then an injury to one group of immigrants, say interned Japanese, must be compensated. This compensation is not so much to repair damage to the injured but to reiterate the legitimacy of America’s national existence. Restitution, however meager, protects and reinforces the ideology of a democratic republic. For the victims, restitution is the pittance which keeps them obedient and loyal. This explains what appears to be inexplicable, namely that apology and reparation make victims proud to be Americans.

34. Indigenous peoples, on the other hand, are not proud to be American since they are not, in truth, of America. Indeed, the very existence of Native nations contradicts the dominant ideology of the United States as an immigrant nation founded in a vacant land. Restitution to indigenous peoples, not only in the United States, but in the Americas, focuses on issues of conquest, of dispossession, of genocide. These historical realities make a mockery of the ideology that Native people should be proud to be American.

35. Given the history of indigenous peoples, then, no monetary compensation, no apology, no effort to "put the past behind us," is acceptable. The only acceptable reality is return of Native lands and waters, a monetary indemnity, and recognition of Native sovereignty.

The Hawaiian Case

36. Our human rights movement is now over three decades old. Beginning in the 1970s, our struggle evolved from anti-eviction actions and occupations of military reserves, including entire islands used as bombing targets, to civil and legal rights struggles, to the current demand for sovereignty. For twenty of these thirty years, I have been an advocate of my people’s human right to self-determination, particularly self-government.

37. Our focus has been on the injury our Native Hawaiian people continue to suffer at the hands of the American government. This injury began with those familiar American practices in the international arena: invasion, occupation, and takeover.

38. On January 17, 1893, the U.S. Minister to Hawai‘i ordered the landing of American Marines in support of an all-white, all-male "Committee of Safety" which had seized political power. Fearing the American military, our Queen, Lili‘uokalani, ceded her authority, not to the committee, but to the United States minister.

39. She wrote to Sanford B. Dole, descendant of white American missionaries and newly chosen head of the provisional government:

I yield to the superior force of the United States…Now, to avoid any collision of armed forces and perhaps the loss of life, I do under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall…undo the action of its representatives and reinstate me…as the constitutional sovereign of the Hawaiian Islands. (Lili`oukalani 1895: 866)

40. On February 1, 1893, Minister Stevens proclaimed a U.S. protectorate and raised the American flag over Hawai’i. But his dream for swift annexation was short-lived. President Cleveland, a mere five days after his inauguration on March 4, 1893, withdrew the pending Hawai’i annexation treaty from Congress.

41. On March 29, Commissioner James Blount, Cleveland’s emissary, arrived in Hawai’i. After four months of investigation, Blount concluded that the overthrow, the landing of Marines, and the subsequent recognition of the provisional government pointed to clear conspiracy between Minister Stevens and the alleged "Committee of Safety."

42. After reading Blount’s report, Cleveland explained to the Senate why he would never again submit the annexation treaty for ratification. In his concluding statement, he wrote:

By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the government of a friendly and confiding people has been overthrown. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair. (Cleveland 1895: 456)

43. Thus was the issue of reparation - of undoing the harm and the injury to the Hawaiian people - first brought to the attention of the American government. It was an exquisite irony of history that an American president would be the first to argue the Hawaiian case for restitution and restoration.

44. In 1897, a protest petition against annexation to the United States was sent to Washington D.C. Over 21,000 Natives, representing the overwhelming majority of adult Hawaiians, had signed anti-annexation petitions. (Silva 1998: 61)

45. Because Cleveland stalled annexation, the all-white oligarchy renamed themselves the Republic of Hawai’i. Our Queen, meanwhile, was imprisoned in her own Palace after a failed Native counter-revolution. Final annexation in 1898 had to wait for a real imperialist, President William McKinley.

46. Union with the United States meant the transfer of 1,800,000 acres of Hawaiian Government lands, that is, nearly half the archipelago, to the all-white planter oligarchy. The Hawaiian language was officially banned from all public instruction, government business, and commerce.

Hawaiian Human Rights Claims

47. In terms of international law, the American military invasion of our archipelago, overthrow of our Native government, imprisonment of our Queen, and immediate American diplomatic recognition of the hastily-constructed, all-white, all-male Provisional Government, resulted in undeniable human rights violations, including our claim, as a Native nation and people, to self-determination.

48. Under international law, these violations constitute:

an arbitrary deprivation of our nationality, and of our citizenship in an independent country;

an arbitrary deprivation of our national territory, including lands, waters, and other natural resources;

a denial of our human right to self-government as both an indigenous people and as a formerly independent country.

49. These deprivations, as a whole, comprise violations of Articles 15, 17, and 21 of the Universal Declaration of Human Rights. In addition, they are also violations of the American Convention on Human Rights. The fact that the overthrow and annexation occurred before international covenants went into effect does not invalidate the Hawaiian case.

50. We must all remember that the ideal of universal self-determination is a settled principle of peremptory international law, superseding customary rules and bilateral treaties. This means that the principle of self-determination is of sufficient importance to be applied retroactively to relationships among states and peoples before the adoption of the 1948 United Nations Charter.

51. After a brief, five-year period as a Republic, Hawai‘i was annexed by Congressional resolution, which required a mere majority vote rather than by treaty, which required a two-thirds vote. No popular vote was allowed in Hawai‘i since Hawaiians were a majority of the population. Following annexation, Hawai‘i became an American Territory with all governors appointed by the American President.

52. At the creation of the United Nations in 1946, Hawai‘i was listed as a Non-Self-Governing Territory under U.S. Administration. Such status was considered a "trust" relationship. Pursuant to Chapter XI of the U.N. Charter, the United States had a trust obligation to promote the political aspirations of the people of the Territory, including self-government. But in 1959, when the United States allowed all citizens of Hawai‘i, Native and non-Native, to vote, only two options were presented: Territorial status and Statehood. Neither Commonwealth nor Independence appeared as choices on the ballot.

53. Following the statehood vote, the United Nations, without inquiry or investigation, removed Hawai‘i from the United Nations list of Non-Self-Governing Territories.

54. Today, the colonial policy of the United States toward Native Hawaiians continues to be one of State and Federal wardship. Defined and divided by blood quantum, our Native people are denied the following:

Our collective right to self-government;

Legal control over our lands and waters;

Economic and political power to develop our lands, fisheries, and cultural properties;

The ability to preserve and protect our entitlements for our lahui, or nation, including future generations.

55. Because of the colonial American policy of non-recognition, Hawaiians are not allowed the civil or human rights due indigenous peoples. These include rights to control our trust assets, including nearly two million acres of lands and waters, and to sue the state and federal governments for land and water recovery.

56. The policies of the Reagan, Bush, and Clinton administrations have been, generally, one of abandonment. The Department of the Interior under both Bush and Clinton administrations disavowed any trust responsibilities to Hawaiians either before or after statehood. Despite the presence of two Federal trusts for Hawaiians, the Federal government negotiates with the State of Hawai‘i rather than with Hawaiians regarding our trust lands. (Trask 1999: 27-41; MacKenzie 1991: 3-104)

57. In 1993, on the centenary of the American military invasion and occupation of Hawai‘i, and the subsequent overthrow of our Constitutional Native government, the U.S. Congress passed Public Law 103-150, signed by President Clinton, and known as the Apology Bill. The Bill states, in part, "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." In paragraph 4, Section 1, the Congress "expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawai‘i, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people." And in paragraph 5, the Congress, "urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawai‘i and to support the reconciliation efforts between the United States and the Native Hawaiian people." (U.S. Public Law 103-150, S.J. Res. 19, 103d Congress, 1st Session, 107 Stat 1510, November 23, 1993)

58. As an act of our collective right to self-determination and to self-governance, many Hawaiian sovereignty groups have proposed the following process for reconciliation as enunciated in the Apology Bill.59. Final resolution of our historic claims relating to the overthrow, and to continued State and Federal misuse of our resources, totaling nearly two million acres of land and close to a billion dollars in trust assets. This resolution could come through negotiation, litigation, or some form of general settlement.

60. Express termination of the present U.S. policy of non-recognition of Native Hawaiian self-determination. This would entail a repudiation of the continuing policy of wardship whereby the State of Hawai‘i controls many of our entitlements against our interests and without our consent.

61. Recognition of our claim as a Native nation to be included in the Federal policy on recognized Native nations, including American Indian nations. Once our claims our settled, lands and waters would be transferred to our control. Elected Native leaders would then assume leadership. The manner and terms of their election and service would be formulated by our own Native people.

62. As someone who has been working and organizing for twenty years for inclusion of our people in the Federal policy on recognized Native nations, I can say that at no time since the United States overthrew our government in 1893 has our nation been in greater danger. Every ameliorative Federal program from educational grants, to diabetes treatment programs, to early childhood training systems is now in doubt.
Indigenous Sovereignty

63. For us, as Native people, the return of Native self-government is the only answer to total dispossession. In the context of the global move toward restitution and reparations, the guiding concern in every case, including that of my own Hawaiian nation, must be injury and human suffering. Apologies - no matter how authentically intended, carefully written, or legally encoded - can never, ever substitute for restitution or reparations. The reasons are obvious. In the first place, apologies are no more than official statements. Costing nothing, they achieve what Christian theology calls "cheap grace." It is the repairing of damage, of harm, which must be attempted even if, as in the case of Native peoples, millions of Native human beings will never be restored to life. Nevertheless, return of some lands, entitlements, and other negotiated rights go a long way toward helping Natives to survive as peoples and nations, not only as individuals.

64. Here, the primary consideration guiding the reparations/reconciliation discussion must be the human relationship between victim and victimizer. Now that the South African case has given the world an example, a new kind of moral sensitivity is slowly appearing in discussions around the globe. The so-called North-South dialogue is part of this. Without doubt, Northern nations have benefited enormously from exploitation of the Southern nations. Therefore, one argument maintains, huge debts owed by nations of the South should be cancelled as partial reparations for centuries of plunder by nations of the North.

65. Questions about who is individually responsible and who is individually injured are secondary. In the case of American slavery, for example, it is true that no Black American alive today was a slave, and no white American alive today was a slaveholder. But these obvious statements miss the mark. The legacies of slavery continue through racial discrimination, ghettoization, exploitation, and a host of other evils such as high infant mortality and early death. (Hacker 1995) The legacies of white supremacy, meanwhile, continue through white socioeconomic and political dominance, widespread institutional racism, and increasing white violence such as the burning of Black churches and vicious hate crimes, including murder, against Black individuals. And these American legacies are separate from the monumental crippling and underdevelopment of Africa as a continent.

66. The question, then, is one of national injury and national responsibility. If we, as a community, and the United States as a country, are concerned about suffering, about citizenship, and about the larger context of international relations - including human rights - then justice must be rendered before reconciliation can be considered. For it is justice, rather than specific amounts of money or carefully crafted apologies, which constitutes the first and primary obligation of nations and peoples.


Haunani-Kay Trask is professor of Hawaiian Studies at the University of Hawai'i-Manoa, and an indigenous nationalist, political organizer and poet. She is the author of the books Light In The Crevice Never Seen and From A Native Daughter: Colonialism And Sovereignty In Hawai'i, and co-produced the award-winning documentary, Act Of War: The Overthrow Of The Hawaiian Nation. She is a member of Ka Lahui Hawai'i, the largest sovereignty initiative in the state of Hawai'i, and has represented the Hawai'ian Nation at the United Nations and at various gatherings throughout the Pacific Ocean and the Americas. Email: ekosasa@hawaii.edu


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Universal Declaration of Human Rights, adopted by the U.N. General Assembly, Dec. 10, 1948, U.N.G.A. res. 217 A (III), U.N. Doc. A/810, at 71 (1948), reprinted in Lillich, Richard B. and Hurst, Hannum (1995), International Human Rights: Documentary Supplement (Aspen: Aspen Law & Business), pp. 17-22.

Venne, Sharon (1998) Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Rights (Penticton, British Columbia: Theytus Books, Ltd.)

The URL for this essay is:
http://www.borderlandsejournal.adelaide.edu.au/vol1no2/trask_restitution.html


© borderlands ejournal 2002

 

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