The U.N. Declaration on the Rights of Indigenous Peoples: Part II – ʻĀina
Melody Kapilialoha MacKenzie, Founding Director and Professor of Law
In an earlier issue of Ka Moaʻe, I discussed the U.N. Declaration on the Rights of Indigenous Peoples and the Declaration’s provisions on self-determination, as well as the interpretation of the United States on the Indigenous right to self-determination. I started by explaining that this exploration of the Declaration stems from co-teaching a class with Walter Echo-Hawk, the Spring 2018 Dan & Maggie Inouye Distinguished Chair in Democratic Ideals. Walter, who has asserted and defended the rights of Native American nations and tribes for more than forty years, strongly urges those working on behalf of Indigenous Peoples to continue to raise the principles set out in the Declaration in every possible forum – before courts, tribunals, legislatures, and the executive, and on a county, state, federal, and international level. He believes that continuing to assert these human rights principles will, over time, change the perception and help to eliminate the racist underpinnings of colonial laws and judicial decisions.
Part I of this series discussed self-determination. Part II explores the Declaration’s provisions on ʻāina or land. In the next issue of Ka Moaʻe, Part III of the series will look at issues related to protection of cultural traditions and customs.
In relation to ʻāina, Article 26 of the Declaration states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Article 26 further provides that “States shall give legal recognition and protection to these lands, territories and resources.” Article 27 requires a “fair, independent, impartial, open and transparent process” to recognize and adjudicate Indigenous Peoples’ rights to land; this process should give “due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems.” Finally, Article 28 provides for redress, stating that the right to redress “can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources . . . [that Indigenous Peoples] have traditionally owned or otherwise occupied . . . and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”
The Declaration also speaks to military activity on Indigenous Peoples’ land. Article 30 provides that “[m]ilitary activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.” An earlier version of this article prohibited military activities in the lands and territories of Indigenous Peoples, “unless otherwise freely agreed upon by the peoples concerned.” That stronger language was watered down in later versions and even a provision that would have placed a higher burden on a government to justify military activity on Indigenous Peoples’ ʻāina was replaced with the “relevant public interest” language.
In December 2010, the U.S. announced its support for the Declaration and noted U.S. efforts to “ensure the protection of Native American lands and natural resources, and to provide redress where appropriate.” The U.S. also pledged to “continue to work so that the laws and mechanisms it has put in place to recognize existing, and accommodate the acquisition of additional, land, territory, and natural resource rights under U.S. law function properly and to facilitate, as appropriate, access by indigenous peoples to the traditional lands, territories and natural resources in which they have an interest.”
Unfortunately, with regard to the “free, prior, and informed consent” of Indigenous Peoples required throughout the Declaration, the U.S. Announcement re-interpreted those provisions as a call for “a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.”
Since the adoption of the Declaration in 2007, there have been slow but steady signs that the principles that it sets forth will eventually be transmuted into binding customary international law. Only a month after its adoption, the Supreme Court of Belize cited the legal principles contained in the Declaration to recognize the property rights of two groups of Indigenous Maya peoples in southern Belize. Subsequently, Bolivia affirmed the importance of the Declaration by incorporating it into its domestic law. The Committee on the Elimination of Racial Discrimination (CERD), which oversees the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, in a 2008 report to the United States, recommended that the United States use the Declaration to interpret its obligations under the convention on racial discrimination as they relate to Indigenous Peoples. In September 2014, the U.N. General Assembly adopted, by consensus, an “outcome document” related to the Declaration that had been advanced at the World Conference on Indigenous Peoples. Importantly, this outcome document includes establishment of a mechanism to monitor and encourage implementation of the Declaration and action toward a new status for Indigenous Peoples at the U.N. Efforts in Canada to require that national legislation harmonize with the tenets of the Declaration are on-going. More recently, in February 2019, the government of the Province of British Columbia announced that it will introduce legislation to implement the Declaration, with BC Premier John Horgan stating that, “It will be more than symbolic; we need to address reconciliation in British Columbia.”
In Hawaiʻi, the familial relationship between Kanaka Maoli and ʻāina is well-established and recognized, even in the law. Indeed, in a 2008 case dealing with the Crown and Government lands of the Hawaiian Kingdom, the Hawaiʻi Supreme Court approvingly quoted the testimony of respected kumu hula and professor, Pualani Kanakaʻole Kanahele, given in the trial court:
“‘Āina is a living and vital part of the Native Hawaiian cosmology and is irreplaceable. The natural elements––land, air, water, ocean––are interconnected and interdependent. To Native Hawaiians, land is not a commodity; it is the foundation of their cultural and spiritual identity as Hawaiians. The ‘āina is part of their ‘ohana, and they care for it as they do for other members of their families. For them the land and the natural environment is alive, respected, treasured, praised, and even worshiped.”
Ongoing controversies relating to ʻāina that go to the core of the deep spiritual relationship between Kanaka and ʻāina are numerous. In some instances, the Native Hawaiian community has been able to restore and heal ʻāina and thus honor its ancestral ties to the land. Perhaps the best example is the island of Kanaloa Kahoʻolawe long used by the U.S. Navy as a bombing target, where the Protect Kahoʻolawe ʻOhana fought a decades long struggle to stop the bombing and return the island to Hawaiian stewardship. In the process, the efforts to restore Kahoʻolawe have revitalized the Makahiki traditions of Lono. Other ʻāina, including Wao Kele o Puna on Hawaiʻi Island, once targeted for geothermal development, and Waimea Valley on Oʻahu, have also come under the stewardship of the Hawaiian community.
Yet, the military use of Hawaiian ʻāina continues to cause destruction to the land and, consequently, to the Hawaiian community. On O‘ahu, Mākua Valley on the Wai‘anae coast has been used for live-fire training and combined arms maneuver training, and has been the subject of significant litigation brought by Native Hawaiians and environmentalists. Pōhakuloa, on Hawaiʻi Island, portions of which are under a 65-year lease from the state to the federal government, is also used for military training and live-fire exercises. As discussed in the last issue of Ka Moaʻe, Pōhakuloa is currently the subject of an on-going lawsuit on the State’s failure to fulfill its trust duties with regard to the 22,971 acres of ʻāina leased to the U.S. That case was heard in the Hawaiʻi Supreme Court on May 16, 2019.
Foremost in the hearts of Kanaka is the effort to ensure that sacred Mauna Kea is protected from further desecration. The intimate bond between Kanaka and Mauna Kea traces back to Papa and Wākea – sky-father and earth-mother – the parents of the Hawaiian islands and the ancient ancestors of Kanaka. The summit of Mauna Kea, “Mauna a Wākea (the mountain [son] of Wākea) is the makahiapo kapu na Wakea (the sacred firstborn of Wākea) . . . .” A recent decision by the Hawaiʻi Supreme Court allows a proposed Thirty-Meter Telescope to go forward and be built on the Mauna, raising strong objections from Kanaka and their supporters. Currently, Kanaka voices are being raised questioning proposed rules by the University of Hawaiʻi regulating activities on Mauna Kea that could have a significant impact on traditional, customary, and religious practices.
These struggles, particularly the difficult struggle over Mauna Kea, highlight the values and world-views Indigenous Peoples hold towards ʻāina and all natural resources. These values may be very different from those of the majority society, but increasingly they are values that are being recognized, honored, and validated – by bodies such as the U.N. through the Declaration on the Rights of Indigenous Peoples and by individual nation states. It may take many more years, but we can each do our part in supporting all efforts to have these Indigenous values and world-views become the norm rather than the exception.
 G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).
 Id., art. 26, para. 1.
 Id., art. 26, para. 3.
 Id., art. 26, para. 3.
 Id., art. 28, para. 1.
 Id., art. 30, para. 1.
 See e.g., U.N. High Comm’r for Human Rights, Draft United Nations Declaration on the Rights of Indigenous Peoples, art. 28, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994).
 U.S. State Department, Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples 6 (Dec. 16, 2010).
 Id. at 5. The State Department Announcement also cited to the Obama administration’s support for the Native Hawaiian Government Reorganization Act, a bill then pending in Congress that could have resulted in a government-to-government relationship between a Native Hawaiian government and the U.S., as well as to other federal acts and programs benefitting Native Hawaiians to show U.S. efforts to implement the Declaration. Id. at 4, 5, 10, 12, 14, 15.
 Aurelio Cal v. Att’y Gen. of Belize, 135 I.L.R. 177, (Consolidated) Claim Nos. 171 & 172 (Sup. Ct. 2007),
 Bolivia has adopted a new constitutional framework that acknowledges both “its indigenous cultural heritage and the rights of indigenous peoples.” Carla Garcia Zendejas, Due Process of Law Foundation, World Justice Project (Oct. 22, 2009), http://worldjusticeproject.org/blog/constitutional-judgment-reaffirms-significance-bolivias-indigenous-rights#_edn2.
 See U.N. Comm. on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination, ¶ 29, U.N. Doc. CERD/C/USA/CO/6 (Feb. 18–Mar. 7, 2008).
 Resolution Adopted by the General Assembly on 22 September 2014, A/RES/69/2, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/2.
 Bill C-262, requiring the Government of Canada to take all measures necessary to ensure that the laws of Canada are in harmony with the U.N. Declaration on the Rights of Indigenous Peoples, passed the House of Commons and is pending in the Senate. Recent news reports indicate, however, that the conservatives in the Senate may be delaying the measure in the hopes of blocking its passage. See https://aptnnews.ca/2019/06/06/conservatives-on-cusp-of-killing-indigenous-rights-legislation-c-262/ (last visited June 8, 2019).
 Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp., 121 Hawaiʻi 324, 333, 219 P.3d 1111, 1120 (2008) (alterations in original) (citations omitted).
 Lilikalā Kame‘eleihiwa, Native Land and Foreign Desires: Pehea Lā E Pono Ai? 23-25 (1992).
 Marie Alohalani Brown, Mauna Kea: Ho‘omana Hawai‘i and Protecting the Sacred, 10 J. for the Study of Religion, Nature and Culture 151, 156 (2016).
 In re Conservation District Use Application HA-3568, 143 Hawai‘i 379, 431 P.3d 752 (2018).