Note: The Seven Step Process was authored and presented to the Native Hawaiian Coalition in 2004 by Mililani B. Trask with input from Lea Kanehe, Annelle Amaral, Jalna Keala, Malia Nobrega and others who participated in the Sub-committee on Procedures & Processes. In 2014, additions were made to incorporate additional international standards for Free Prior & Informed Consent with input from Ka Lahui Hawaii citizens from Oahu following a meeting with the State of Hawaii Office of Hawaiian Affairs staff at their offices on Oahu.
HAWAIIAN SELF-DETERMINATION: THE SEVEN STEP PROCESS
By Mililani B. Trask (reprinted with permission)
Applicable International Legal Standards:
I. United Nations Declaration on the Rights of Indigenous Peoples
On September 13, 2007, the United Nations Declaration on the Rights of Indigenous Peoples (DRIP) was adopted at the 107th plenary meeting by the General Assembly of the United Nations. The DRIP set forth the Human rights of Indigenous Peoples and for the first time in International human rights law, recognized that indigenous peoples have the right of Self-Determination. The DRIP also set out limitations on the actions of States that impact indigenous peoples by requiring that States obtain the Free, Prior and Informed Consent (FPIC) to actions of States that impact them, through a process of Consultation.
Applicable provisions of the DRIP:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions.
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
II. Self-Determination, Free Prior & Informed Consent and Consultation:
Self-determination is a human right extended to peoples. It is not a right of government agencies, elected public officials or Trustees. Self-determination is not a model of governance, it is a process whereby peoples exercise their human rights, so that they may determine their political status (i.e. the right to choose and establish a ‘body politic’ or nation). Although the United Nations and other International bodies affirm, uphold and defend the right of indigenous peoples to self-determination, ultimately, it is up to the peoples asserting the right to begin the necessary processes. The self-determination processes requires (1) a fair process to determine political status or nation, and (2) the power of the peoples to “freely pursue their economic, social and cultural development.”
Free Prior & Informed Consent (FPIC) & Consultation
In order to ensure that States do not violate the right of indigenous peoples to self-governance the DRIP imposes on States the obligation to obtain the Free, Prior & Informed Consent of indigenous peoples. The EMRIP in Advice 2 has stated:
21. ….. the right to free, prior and informed consent is embedded in the right to self-determination. The procedural requirements for consultations and free, prior and informed consent respectively are similar. Nevertheless, the right of free, prior and informed consent needs to be understood in the context of indigenous peoples’ right to self-determination because it is an
22. The duty of the State to obtain indigenous peoples’ free, prior and informed consent entitles indigenous peoples to effectively determine the outcome of decision-making that affects them, not merely a right to be involved in such processes. Consent is a significant element of the decision-making process obtained through genuine consultation and participation. Hence, the duty to obtain the free, prior and informed consent of indigenous peoples is not only a procedural process but a substantive mechanism to ensure the respect of indigenous peoples’ rights. Extract from the Final report on the study on indigenous peoples and the right to participate in decision-making.
8. The requirement that consultations be carried out through appropriate procedures implies that general public hearing processes are not normally regarded as sufficient to meet this procedural standard. Consultation procedures need to allow for the full expression of indigenous peoples’ views, in a timely manner and based on their full understanding of the issues involved, so that they may be able to affect the outcome and consensus may be achieved.
9. Moreover, consultations should be undertaken in good faith and in a form appropriate to the relevant context. This requires that consultations be carried out in a climate of mutual trust and transparency. Indigenous peoples must be given sufficient time to engage in their own decision-making process, and participate in decisions taken in a manner consistent with their cultural and social practices. Finally, the objective of consultations should be to achieve agreement or consensus.
28. States have a duty to respect the fact that indigenous peoples have the right to participate in all levels of decision-making, including in external decision-making, if the indigenous peoples concerned so choose and in the forms of their choosing, including, where appropriate, co-governance arrangements.
29. States should respect and assist both traditional and contemporary forms of indigenous peoples’ governance structures, including their collective decision-making practices. A/HRC/18/42, 17 August 2011, at para. 8, 9, 21, 22, 28, 29.
A SEVEN STEP PROCESS FOR HAWAIIAN NATION BUILDING
STEP I – Community Education & Kūkā on Community Goals & Processes for Nation Building
A. Consultation Process/FPIC: The first step involves community education & consultation using cultural processes like Aha, Halawai in each island district & Island wide Puwalu. This needs to be pursued at each & every phase of the self- determination process in order to ensure the process comes from the PEOPLES themselves. At the community level, Hawaiians who support an initiative for Self-governance should be supported as community Ad Hoc Committees.
While there is no required process for peoples exercising their rights of self- determination, each individual case is unique and requires culturally appropriate mechanisms developed by the peoples themselves. There are at least three things that must be online before a self-determination process can proceed. These three things are:
- A duly constituted body – to ensure that the process has oversight until a formal election of representatives of the people who will be charged with drafting the documents of nationhood. has taken place. An election process usually creates this body. It must be representative of the peoples involved and be authorized by them directly (a steering committee).
- Financial ways and means are obtained and accounting procedures are in place to cover costs. Usually this requires a non-profit that works with the steering committee as a fiscal administrator.
- Verification of Hawaiian participants – a procedure to verify that the participants are the Hawaiian ”peoples” and that the criteria (i.e. blood, age, residency etc.…) are established. This process includes data collection and update for participation requirements and information mail-out and eventually becomes the preliminary roll of participants.
Who participates in the Process?
- Every indigenous nation has 1.) Territory – their traditional lands, territories and natural resources; 2.) Citizens – the people who live on the land; 3.) A structure of government; 4.) An economic system and 5.) A cultural heritage.
- The indigenous peoples who live on the land are the peoples who should be empowered to create and participate in the government, maintain the cultural places and practices of the land and develop economic self- sufficiency. There are the peoples who will elect those who will draft a constitution and make laws to govern and protect the land.
- All nations have criteria for citizenship and participation. In the case of the Hawai`i nation participation should be limited at the outset to adult Hawaiians who live on the traditional Hawai`i land base. These peoples know the issues relating to the culture and the land. [Hawaiian ancestry needs to be verified or we will have Ken Conklin claiming to be a Hawaiian and have a right to citizenship].
Note: The largest population of Hawaiian live on urban Oahu. The second largest group of Hawaiians live on the U.S. continent – they do not know or live with the cultural, political or socio-economic issues of the land. If these people are allowed to draft a constitution it will not accurately reflect the reality and needs of the land base. When the Hawaiian nation is formed it may define citizenship to include Hawaiians who do not live in Hawaiʻi. At present the population of Hawaiians on the U.S. continent would out vote all of the Hawaiians on Hawaiʻi, Kaua‘i, Maui, Lana‘i, and Moloka‘i.
STEP II-The Political Status Ballot
CULTURAL PROCESS FOR FPIC, AHA, Halawai & PUWALU are conducted first for Step #2.
The purpose of the political status ballot is not to elect delegates to a constitutional convention (“Con-con”); but to obtain the approval of the “peoples” for an initiative for Self-governance & Nation Building & to facilitate their choice of Hawaiian leadership to create & steer a process for Self-governance.
In addition, the political status ballot polls Hawaiians to determine their political will and their preference for the structure of their nation. Therefore, determining political status is a two-fold process. The first part verifies the political will of Hawaiians to proceed with Nation-building. i.e. Plebiscite, Referendum) and the second polls Hawaiians for their preference on options for structures and models of government.
Outlined below are some examples of what a political status ballot could look like.
A. Ballot 1 – The Referendum/Plebiscite Question:
“Shall the Hawaiian Peoples exercise their right of self-determination to establish a nation for self-governance and the maintenance, protection and preservation of their culture & traditional lands, territories and resources.”
Yes________ or No_________,
“Shall the Hawaiian peoples residing in the State of Hawaii designate/elect ____ # of Hawaiian representatives from each island to propose a culturally appropriate process for the creation of a Hawaiian Nation?”
Yes________ or No________,
“Shall Hawaiian Trust funds held by OHA be used to facilitate this effort?”
Yes__________ or No____________,
B. Ballot 2 – The Political Will Options (which may include both national structures and international options):
A ballot is prepared which list options for national structure and for determining seats for convention of delegates. Options should come from the Community Kuka sessions, but likely will include the options below:
Question: Which National structure do you favor?
- Kingdom structure
- Traditional Alii structure
- Elected Representatives from each island
- Convert OHA into a Nation w/ DHHL landbase etc. etc.
And then International political options and for determining seats for convention of delegates:
1. Independence; 2. Free-Association; 3. Integration. NOTE: Rules would determine the number of signatures (petition) needed to get an initiative on the ballot. Rules would provide for inclusivity.
At the end of STEP II – we will know 1) if the Hawaiian Peoples support the initiative by 51% or more…and 2) what percentage of the peoples favor different structures. For example, if the results show that:
35% support Independence,
10% support a Monarchy Structure, and;
15% want to elect a Bicameral Legislature
These figures will then be used to determine the number of seats at large, that will be voted on by those supporters. (Please see Step III.)
C. ELECTION OF COMMUNITY/ISLAND HAWAIIANS TO OVERSEE THE PROCESS & CREATE RULES & PROCESSES
STEP III – Elect Delegates to Draft Constitution
CULTURAL PROCESS FOR FPIC ARE CONDUCTED FIRST
A. Delegates are elected in two categories:
Group 1: Based on population, geographical locations etc.…
Group 2: At large seats are allocated based on outcomes of STEP II.
For example, if the rules provide that there shall be (1) one delegate per every 2000 people, and in Hawai`i there are 200,000 Hawaiian people, than the convention of delegates (Please see – STEP IV) would call for 100 delegates elected by district.
Rules also provide for 100 delegates elected at large. Therefore if 10% voted for a Monarchy Structure then 10% of the at-large seats must be filled by monarchy supporters. These candidates run at-large on a monarchy platform.
B. Special rules should be adopted, such as consideration for insular communities like Miloli`i and Kalapana. The special rules should provide for (1) one representative for each community regardless of population. This ensures that cultural enclaves participate in the convention of delegates even though they have fewer people.
C. Outcomes; once delegates are elected, they organize a steering committee to take oversight of the process.
STEP IV – Convention of Delegates
CULTURAL PROCESS FOR FPIC ARE CONDUCTED FIRST in order to facilitate delegates meeting w/ constituents they are to represent at the convention.
A convention of elected delegates (i.e. Constitutional Convention) is convened to develop a governing document (i.e. Constitution). The final documents produced should be circulated throughout Ka Pae `Aina for review by the Hawaiian peoples before a ratification vote is held.
STEP V – Peoples Ratify Convention Documents
CULTURAL PROCESS FOR FPIC ARE CONDUCTED FIRST
After the convention of delegates or con-con is complete and the peoples have had enough time to fully review the documents produced, the peoples must ratify the documents by vote (i.e. 51% or more).
STEP VI – Peoples Elect Leadership
After the governing documents have been ratified and depending upon the political structures chosen by the peoples, the peoples may elect leadership based on the governing guidelines.
STEP VII – Nation Is Formed
Following its formation the nation assumes control and sets national policy for international and external relationships, land, and citizenship etc.
The Nation negotiates federal recognition, land claims, reparations etc. following its creation.