•This blog entry has been revised to ensure historical accuracy.

There is much confusion regarding the political term indigenous people and its application or misapplication to the natives of the Hawaiian Islands. But before we can discern and qualify whether or not the natives of Hawai‘i are an indigenous people, we need to begin with definitions. By definition, indigenous is “originating or occurring naturally in a particular place,” whereas aboriginal is “inhabiting or existing in a land from the earliest times,” also referring to human migration as “first to arrive in a region.” According to Hawaiian history, the natives of the Hawaiian Islands, who are Polynesians, did not originate in the islands but rather came from central Polynesia between 1 and 300 A.D.

The term indigenous is common parlance in taxonomy, which is the branch of science concerned with the classification of plants and animals, e.g. the Black Bear is indigenous to the Americas, or the ‘Ohi‘a Lehua plant is indigenous to Hawai‘i. In this use, indigenous and endemic are synonymous. Aboriginal, on the other hand, is associated with migrations. You don’t refer to plants or animals as aboriginal. There are, however, instances of when Native Americans were called indigenous as early as 1838, but this also needs to be understood within the context of race relations at the time. Throughout the nineteenth century, Americans stereotypically referred to Native Americans as savages, even using the words noble and ignoble savage. This was a demeaning label as if Native Americans were animals.

The term indigenous as it applies in a “political context” to different people throughout the world appear to have been first coined in 1972 when the United Nations established a Sub-Commission on Prevention of Discrimination and Protection of Minorities. Jose R. Martinez Cobo served as Special Rapporteur and was the author of the Study on the Problem of Discrimination against Indigenous Populations. Cobo was the first to provide the following definition, “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.”

James Anaya, who served as Special Rapporteur on the Rights of Indigenous Peoples, defines indigenous peoples as “living descendants of pre-invasion inhabitants of lands now dominated by others. They are culturally distinct groups that find themselves engulfed by other settler societies born of forces of empire and conquest.” Both Cobo and Anaya refer to countries such as the United States of America and Mexico, where in both countries or States, there pre-existed tribal peoples such as the Apache or the Zapotec. Indigenous peoples would not apply to a State such as Germany because Germanic tribal peoples such as the Teutonic, Suebian or Gothic were the ones that formed the German State as we know it today. They were not invaded or colonized by a State when they were still tribal. This same logic would apply to the Tongan State where it was the Tongan people, who are Polynesian, that established their State that exist today.

On June 27, 1989, the concept of indigenous peoples was adopted by the International Labor Organization in its Indigenous and Tribal Peoples Convention (No. 169), which entered into force on September 5, 1991. Article 1 states: “This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geological region to the which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

By these definitions, it is clear that indigenous peoples are distinguished from the State they reside in, and the term does not apply to the citizenry of States. In their journal article Indigenous “Sovereignty” and International Law: Revised Strategies for Pursuing “Self-Determination,” Corntassel and Primeau explain that indigenous peoples are viewed not as sovereign States, but rather “any stateless group” residing within the territorial dominions of existing sovereign States [17(2) Human Rights Quarterly 347 (1995)].

On September 13, 2007, the United Nations General Assembly passed a resolution proclaiming the United Nations’ Declaration on the Rights of Indigenous Peoples. While the Declaration has no definition of indigenous peoples, it does provide what rights indigenous peoples have within the States. What is clear is that the Declaration distinguishes between indigenous peoples and the State they reside in. In its preamble, the Declaration provides, “Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith,” and “Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned.”

The first United States law to identify the natives of the Hawaiian Islands as indigenous is the 1993 joint resolution to acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawai‘i, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai‘i. The Apology resolution stated, “Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national laws to the United States, either through their monarchy or through a plebiscite or referendum.” In 2011, it was inserted in Act 195—Kana‘iolowalu, where it states, “The Native Hawaiian people are hereby recognized as the only indigenous, aboriginal, maoli people of Hawai‘i.” Act 195 also specifically made reference to the “United Nations Declaration on the Rights of Indigenous Peoples.”

This erroneous application of the political term indigenous people upon the natives of the Hawaiian Islands has been the cause of much confusion and assumes that natives never had a sovereign and independent State of their own. Through the explicit acknowledgment by the Permanent Court of Arbitration of the Hawaiian Kingdom as a State from 1999 to 2001, as well as academic and scholarly research, we now know this identification is a complete fabrication.

Since the Hawaiian Kingdom was recognized as a sovereign and independent State in the nineteenth century, the natives comprised its citizenry, which was called Hawaiian subjects. As a nationality, the Hawaiian citizenry was opened to non-natives who were either born on Hawaiian territory (jus soli), or naturalized, which had a residency requirement.

The term that was used to identify the natives amongst the Hawaiian citizenry was aboriginal Hawaiian; and the Hawaiian translation of aboriginal Hawaiian is kanaka maoli as opposed to kanaka Hawai‘i, which is Hawaiian subject. According to the 1890 Hawaiian census, there were 40,622 aboriginal Hawaiians (kanaka maoli), both pure and part, and 7,495 non-aboriginal Hawaiians (kanaka Hawai‘i), which included: 4,117 Portuguese; 1,701 Chinese and Japanese; 1,617 other White foreigners; and 60 other nationalities.

In her will dated October 31, 1883, Princes Bernice Pauahi Bishop set the foundation for the establishment of the Kamehameha Schools to be built in 1887. Article 13 of her will made specific reference to aboriginal Hawaiians, which states, “I direct my trustees to invest the remainder of my estate in such manner as they may think best…in the maintenance of said schools; …and to devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.” In other words, a person can be Hawaiian who is not “pure or part aboriginal blood.”

A similar provision was in the will of King William Charles Lunalilo who established Lunalilo Home for the Hawaiian elderly. Article 3 of his will dated June 7, 1871, states: “I order the Trustees…to expend the whole amount in the purchase of land and in the erection of a building or buildings on the Island of Oahu, of iron, stone, brick or other fire proof material, for the use and accommodation of poor, destitute and infirm people of Hawaiian (aboriginal) blood or extraction, giving preference to old people.”

Aboriginal Hawaiians are not indigenous people, but remain the majority of the citizenry of a sovereign and independent State—the Hawaiian Kingdom. The rights of the citizens of an occupied State is enshrined under the 1949 Geneva Convention (IV) relative the Protection of Civilian Persons in Time of War, and the 1977 Additional Protocol (I) relating to the Protection of Victims of International Armed Conflicts.

The Hawaiian Kingdom was not invaded or colonized by the United States before it became a State under international law, and therefore its people cannot be considered as indigenous. Instead, international law protects and maintains the continuity of the State despite it being under an illegal and prolonged occupation since the Spanish-American War, which is similar to Germany’s occupation of Luxembourg from 1914-1918 during World War I.

There appears to be some confusion as to what took place at the Permanent Court of Arbitration (PCA). Some contend that the PCA “did not” recognize the continued existence of the Hawaiian Kingdom as a “State” under international law because the Arbitral Tribunal did not pronounce that the Hawaiian Kingdom continues to exist. This false contention assumes that the PCA and the Arbitral Tribunal are one and the same entity. The PCA and the Arbitral Tribunal it creates are two separate entities.

In international arbitration, there are two distinct jurisdictions—“jurisdiction of the institution” and “jurisdiction of the arbitral tribunal.” In 2003, the United Nations Conference on Trade and Development published a module for a course on “Dispute Settlement” that explains how the Permanent Court of Arbitration (PCA) operates, and the two types of jurisdictions is explained on p. 15-16. The PCA is the “institution,” which is separate and distinct from the “arbitral tribunal” it creates. All arbitral tribunals created by the PCA are ad hoc because it depends on the subject of the dispute and who can serve as qualified arbitrators on the tribunal.

Article 26 of the 1899 Hague Convention for the Pacific Settlement of International Disputes, which established the PCA, states “The jurisdiction of the Permanent Court may, within the conditions laid down in the Regulations, be extended to disputes between non-Signatory Powers, or between Signatory Powers and non-Signatory Powers, if the parties are agreed on recourse to this Tribunal.” This article was superseded by Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes, which provides, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this Tribunal.” Contracting Powers and non-Contracting Powers are States.

Since 1930, the PCA expanded its jurisdiction to non-States involved with international disputes. According to the rules of the PCA, when an arbitration agreement is submitted to the PCA for dispute-resolution it must be: (1) between two or more States; (2) between a State and an international organization (e.g. United Nations); (3) between a State and a private party; or (4) between an international organization and a private party.

Here are examples of the four types of arbitration cases that have been convened by the Permanent Court of Arbitration.

When the arbitration agreement between Lance Larsen and the Hawaiian Kingdom was submitted to the PCA for dispute resolution, the PCA had to first determine if it had institutional jurisdiction before it could establish an ad hoc arbitral tribunal. In other words, the PCA had to determine whether or not the parties to the arbitration agreement were two States; a State and an international organization; a State and a private entity; or an international organization and a private entity. From November 8, 1999, when the arbitration agreement was submitted to the PCA, to April 2000 when the arbitral tribunal was established, the PCA was doing its due diligence in determining whether or not the Hawaiian Kingdom existed as a State under international law.

It was only after the PCA confirmed the Hawaiian Kingdom does exists as a “State” and Larsen is a “private entity,” it initiated the process to convene the arbitral tribunal. With Mr. Keoni Agard serving as the appointing authority, he worked directly with the PCA who provided him with a list of names and their expertise for consideration by Mr. Larsen and the Hawaiian government. Since the dispute centered on unlawful imposition of American laws within the Hawaiian Kingdom during occupation and that the United States declined the offer to join in the arbitration, the list of arbitral candidates and their expertise focused on these areas.

The Hawaiian government selected Professor Christopher Greenwood, QC, whose expertise focused on the law of occupation. Greenwood was a Professor of International Law at the London School of Economics. His often cited work was “The Administration of Occupied Territory in International Law,” International Law and the Administration of Occupied Territories (Emma Playfair ed., 1992); “International Humanitarian Law (Laws of War)—Revised Report for the Centennial Commemoration of the First Hague Peace Conference 1899,” Centennial of the First International Peace Conference (Frits Kalshoven, 2000).

Ms. Ninia Parks, counsel for Lance Larsen, selected Gavan Griffith, QC, whose expertise focused on indispensable third parties. Griffith was the former Solicitor General of Australia and represented Australia before the International Court of Justice in the East Timor case (Portugal v. Australia) and Nauru case(Nauru v. Australia), where the issue before the ICJ was the principle of indispensable third parties in international proceedings.

Once Mr. Agard was able to confirm the selections with the PCA, these two arbitrators would recommend a person to be the president of the tribunal. Both Greenwood and Griffith nominated ProfessorJames Crawford, SC. Crawford was a Professor of International Law at Lauterpacht Research Centre for International Law, University of Cambridge. He was a member of the United Nations International Law Commission (UNILC) and from 1998-2001 served as Special Rapporteur who was responsible for completing the Articles on Responsibility of States for Internationally Wrongful Acts.

The Hawaiian government was very impressed with the qualifications of Professor Crawford and notified Mr. Agard that it would accept Professor Greenwood and Dr. Griffith’s recommendation for the president. Ms. Ninia Parks, counsel for Larsen, also confirmed the nomination. This is when the arbitral proceedings began and oral hearings held at the PCA in The Hague in December 2000.

In the arbitral award, the Tribunal concluded that it did not have jurisdiction over the dispute on whether the Hawaiian government was negligent for allowing the unlawful imposition of American laws within the Hawaiian Kingdom, which led to the incarceration of Larsen, because the United States was an indispensable third party. In other words, the Hawaiian government prevailed because Mr. Larsen could not come after the Hawaiian government unless the United States was a party to the case. This case was not about whether or not the Hawaiian Kingdom exists as a State, it merely centered on the allegation of negligence on the part of the Hawaiian government.

During the proceedings, the Hawaiian government engaged in artful pleading where it was attempting to have the tribunal, within its rules, to pronounce the existence of the Hawaiian Kingdom in order to address Mr. Larsen’s allegation that it was allowing the unlawful imposition of American laws within Hawaiian territory. The Hawaiian government already knew that the Permanent Court of Arbitration, as an institution, explicitly recognized the Hawaiian Kingdom as a “State,” because if it didn’t, the PCA would not have never convened the Arbitral Tribunal.

https://vimeo.com/17007826

The issue being considered in this case by the “arbitral tribunal” centered on Larsen’s allegation of negligence on the part of the Hawaiian government.  It was not attempting to determine whether or not the Hawaiian Kingdom exists as a State.  The “institution” (PCA) had already made that determination, according to its rules, and determined that it had jurisdiction to proceed to form the arbitral tribunal whose job it was then to investigate the allegation of negligence.

Although, during the proceedings, the Hawaiian government did engage in artful pleading where it attempted to get the “arbitral tribunal” to pronounce, within its rules, the existence of the Hawaiian Kingdom in order to address Mr. Larsen’s allegation that it was allowing the unlawful imposition of American laws within Hawaiian territory.  This attempt was not necessary because the Hawaiian government already knew that the PCA concluded that as an institution it had jurisdiction because it confirmed that the Hawaiian Kingdom continues to exist as a “State” and that Lance Larsen was a “Private entity.”  The PCA “explicitly” states this in its case view of the Larsen case where it notes “Name(s) of claimant(s) Lance Paul Larsen (Private Entity) Name(s) of respondent(s) The Hawaiian Kingdom (State).”

The Arbitral Tribunal, however, being a separate entity from the PCA, concluded that it did not have jurisdiction over the dispute between the Hawaiian government and its national because the United States government was a necessary third party. If Hawai‘i was the so-called 50th State of the United States, the PCA would have never accepted the case at the onset.