Decolonial Self-Determination and ‘No-State Solutions’

This post is part of a symposium on Joseph Massad’s essay “Against Self-Determination.” All contributions to the symposium can be found here.

In his trenchant essay, “Against Self-Determination,” Joseph Massad deftly argues that colonizing states crafted the dominant form of self-determination to limit the claims of anticolonial nationalism and enhance the claims of colonialism. He further zones in on the ways in which these structural limitations have served settler colonial states in ways that constrain indigenous peoples’ claims and access to their traditional territories—lands that settler societies have expropriated for themselves.

This is dense work that tackles several problematics in order to trace how the Wilsonian brand of self-determination became hegemonic within international law and practice. The essay also examines Wilsonian self-determination’s relation to the case study of Palestine, in comparison with several other examples, in particular indigenous ones. Massad traces how, since the mid-19th century the concept of the nation became a legal category juridically connected to the principles of jus soli and jus sanguinis. He documents how “colonial-settlers were able to achieve…the conjuring up of this connection for themselves and its severance for the indigenous and colonized under the capacious umbrella of ‘self-determination.’” As Massad continues, settler-colonists “would only accede to a recognition that the indigenous peoples whose lands they usurped are nations on condition that self-determination not only would not lead to the declared goals of ‘independence’ and ‘liberation’ from settler-colonialism, but would effectively obstruct any path towards those goals.”

Drawing on Massad’s illustration of “the salience of this colonial-settler achievement not only for the Palestinians but also on a global scale,” in this short essay I draw out a comparative thread between the cases of Palestine and Hawai‘i. In doing so, I build on a likeness Massad identifies between the two with regard to settler colonial attempts to sever indigenous claims to land and belonging. Additionally, I examine the political status of several U.S. colonies—U.S. Virgin Islands, Guam, and American Sāmoa—that further illustrate Massad’s argument about the structural limits of self-determination at-large, but also how this form of legal and political containment within both U.S. federal policy and international law has specific ramifications for indigenous peoples.

In the Hawai‘i case, which Massad cites with regard to the blood quantum policies imposed by the settler state, the U.S. Congress defined “native Hawaiians” as those people “with at least one-half blood quantum of individuals inhabiting the Hawaiian Islands prior to 1778.” As I document in Hawaiian Blood, this “blood logic” has since become an entrenched part of the state legal system. Massad notes that this process of Hawaiian deracination resembles the ways in which the Oslo Accords “invoke a limited jus soli for a portion of the Palestinians who live on parts of the 1967 land and nullify it for those Palestinians who no longer live on those parts of the land as a basis to access it.” He explains, “This was carried out precisely through the PLO’s transferring, through recognition, to Israel the Palestinian “hereditary” right to their “soil” by granting juridical legitimacy to Israel’s establishing itself on 78 percent of the land of the Palestinians in 1948.” He continues, “no longer able (or needing) to deny the Palestinians the right to self-determination, the dilemma for Israel was how to divide the Palestinians between those who could partially access jus soli and those who could not access it at all.”

I should note that there are other commonalities between the Hawaiian and Palestine cases. The U.S. annexation of the islands effectively masked its illegal occupation of an independent state, which followed the U.S.-backed overthrow of the Hawaiian Kingdom in 1893. After the 1898 purported annexation, the U.S. government treated Hawaiʻi as a colonial territory, and in 1946 added it to the UN list of non-self-governing territories in compliance with Chapter XI of the UN Charter, the Declaration Regarding Non-Self-Governing Territories. Article 73 delineates the obligations of members of the United Nations regarding Territories whose peoples have not yet attained a full measure of self-government, which include recognizing “the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories,” including the development of self-government.[1] Hawaiʻi was on that list until 1959, when the U.S. administration held a plebiscite to deny a chance at full independence. This vote preempted the application of protocols established by the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, which states that all peoples have a right to self-determination, and proclaimed that colonialism should be brought to a speedy and unconditional end. And yet we see that is far from the case in terms of implementation.

Three U.S. colonies—U.S. Virgin Islands, Guam, and American Sāmoa—are all still inscribed on the UN List of Non-Self-Governing Territories[2] under article 73 of the UN Charter. As such, the “inhabitants” of these island nations are entitled to a plebiscite on their respective political statuses in order to exercise their self-determination. And yet, the U.S. government continues to try and manage the issue internally while asserting its plenary power over each. For example, the last status referendum for the U.S. Virgin Islands was held on October 11, 1993, when voters were offered the options of integration into the United States, becoming a United States territory, or independence. Although 82% voted in favor of territorial status, voter turnout was below the 50% threshold. Media reports noted that because of the low voter turn-out the result was “invalidated,” but what is rarely addressed is that any binding plebiscite or referendum should be held by the United Nations, not the U.S. government or any of its subsidiaries. And yet, U.S. officials continue the charade of encouraging the exercise of “self-determination.” For example, in 2016, U.S. Department of Interior Secretary Sally Jewell told an audience of U.S. Virgin Islanders—during the 99th Transfer Day Commemoration, no less:

As you look to your centennial, as you look to the next hundred years, what would you like to be? What would you like for the Virgin Islands? Do you want to continue to be a U.S. territory as you are today with the opportunities and yes, the challenges, that comes with that? Or do you want to move towards statehood with the challenges and opportunities that come there? Do you as a people want to become an entirely new country represented in the United Nations with the opportunities and certainly the challenges that come there?[3]

A year later during the centennial, Carlyle G. Corbin complicated this same sort of rhetoric, noting that a fundamental question is “whether the minimum requirements of democratic legitimacy are met through a political system of governance which maintains unilateral authority over a people by a government in which they have no political rights.” She also notes a key corollary—“whether the people have a problem with being equated with ‘territory or other property,’ and referred to in legislation as offshore possessions, insular areas, and similar terms, which many regard as insensitive and demeaning given the historical legacy of slavery.”[4] And, while the case of the U.S. Virgin Islands does not entail any question of indigenous sovereignty—but one of self-determination for slave descendants—and is not a case of settler colonialism, we see that “self-determination” here means limited self-governance with the false promise of a political status shift under international law perpetually deferred.

In Guam, an indigenous case study accompanied by rampant settler colonialism, the ongoing land expropriation related to U.S. military expansion on the island is dire. In 2007, Congress authorized $193 million in military construction funds for Guam, a $31 million increase over 2006 funding. This was the outcome of an agreement between the United States and Japan to shift 8,000 U.S. Marines from bases in Japan to the island of Guam by 2014, a plan that has since been deferred indefinitely due to structural problems about this project overwhelming the 209 square mile island. Nonetheless, the U.S. government asserts its access and use of Guam in this way because it is a U.S. colony.[5] And although the people of Guam are entitled to a plebiscite to freely determine their own political status, the U.S. government has prevented this process from taking place. And it is no wonder why, since, as Defense Industry Daily reports, any upcoming military transfer will accelerate “the return to prominence of Guam in the U.S. defense posture and fostering a higher level of cooperation among the U.S. armed forces in the Pacific region.”[6]

There are two legal cases at play in Guam both of which threaten the indigenous-specific claims to land and self-determination. In one case, currently before the U.S. Court of Appeals for the Ninth Circuit—Davis v. Government of Guam—a white American is challenging Guam’s proposed political status plebiscite, also alleging racial discrimination.[7] The other case is against the Chamorro Land Trust Act. In 2017, the federal government filed a suit against Guam, claiming that the Act is racially discriminatory and violates the federal Fair Housing Act. Like the Hawaiian Homes Commission Act of 1921 that created the blood quantum policy discussed by Massad, the Chamorro Land Trust holds public land for the benefit of the island’s indigenous Chamorus, who are allowed to apply for long-term residential and agricultural leases at $1 a year. However, the Land Trust Act defines “native Chamorro” as anyone who became a U.S. citizen as a result of the Organic Act, and their descendants, which may include non-Chamorros since at the time the Guam Organic Act passed Congress in 1950, there were white Americans as well as people of various Asian ethnicities (among others) residing on the island. These non-Chamoru are also eligible for leases under the Chamorro Land Trust.[8]

U.S. rule in American Sāmoa can be said to be an example of imperialism, but is arguably not one of classic settler colonialism. While the U.S. government holds those islands as an unincorporated territory (a colony) and has a policy of extending its jurisdiction through military and judicial force, the federal government has not sought to replace the Sāmoan people with settlers by inundating them demographically to expropriate their land. American Sāmoans there constitute over 90% of the population and hold title to over the majority of their land.[9] American Sāmoa is distinct from other unincorporated territories since it is the only deemed “unorganized.” The Office of Insular Affairs in the U.S. Department of the Interior administers it, while the governor exercises executive power and legislative power is vested in the two chambers of the legislature. There is also the traditional system of governance intact at the village level—the fa‘amatai (chiefly system) and the fono (council), whereby the matai (chiefs) are elected by consensus within the fono of the extended family to the village. A look at these persistent polities based on kinship offer a way to discuss the politics of the 14th and 15th Amendments of the U.S. Constitution—and how neither apply in American Sāmoa in the same way they do in the fifty states. Here “equality under the law” can mean something qualitatively different in a context in which application of those parts of the constitution would be destructive to traditional governance and land tenure.

The case of American Sāmoa enables us to think through critical questions of colonial status, political decolonization, and meaningful autonomy. It is worth noting the case of Tuaua v. United States in which Samoan plaintiffs challenged current U.S. federal law that classifies persons born in American Sāmoa as “non-citizen nationals.”[10] On June 5, 2015, the U.S. Court of Appeals for the District of Columbia ruled 3-0 to deny birthright citizenship to American Samoans, based on the assertion that the Fourteenth Amendment does not apply to unincorporated U.S. territories. While some want full citizenship guaranteed by the Citizenship Clause of the Fourteenth Amendment, others problematize full-citizenship because of the changes to land laws likely to be opened up. But there is no movement to speak of at this time that calls for a UN referendum on the political status of American Sāmoa, let alone an independence movement. This may be because a vote for political decolonization from the United States would undoubtedly affect fiscal resources for a sustainable political economy and opportunities for mobility (for example, right of entry to the continental United States). Related to this is an ongoing debate over the territory’s political status, especially since the former U.S. House Rep. Eni F. H. Faleomavaega (the non-voting delegate to the U.S. House representing the territory) consistently asserted during his twenty-six year term that American Sāmoa is not a colony, and therefore should be removed from the UN list of the Non-Self-Governing Territories.[11] In any case, given that American Sāmoans still hold title to most of their traditional lands and are the vast majority demographically, paradoxically, they may actually be able to exercise more meaningful “self-determination” as a colony.

As Elfrén Rivera Ramos has pointed out, the federal government’s legal designation of each one of these island nations is as an “unincorporated territory” denotes an area where fundamental rights may apply as a matter of law, but other constitutional rights are denied.[12] As such, Ramos argues that this is a category of domination, since Congress governs them pursuant to its interpretation of unilateral power under the territorial clause of the U.S. constitution. The U.S. government also continues to assert plenary power over Puerto Rico and the Northern Mariana Islands despite the fact that both are officially referred to as “commonwealth” governments.

Returning to the Hawai‘i case, it is considered “the 50th state” of the so-called union, but still has an enduring indigenous question with Kanaka Maoli (indigenous Hawaiians) demographically overwhelmed by the structure of settler colonialism. Meanwhile there is a thriving contemporary independence movement calling for U.S. military de-occupation for those invested in restoration of the Kingdom (based on outstanding claims under international law) on the one hand, and those seeking U.S. federal recognition akin to the status of tribal nations on the other. Caught at the cross-roads of this political stand-off is the concept of “self-determination”—one version of which is under the auspices of independence, while the other is an internal form under U.S. domestic policy. In this fraught political context, Kingdom nationalists have pushed back against Hawaiian claims couched in the framework of indigenous rights. This is in part due to the fact that indigenous peoples are subordinated under international law.

Still today, the UN protocols for decolonization do not apply to all peoples, i.e. indigenous peoples.[13] The UN process has historically excluded indigenous peoples enduring settler colonial situations. Part of this is due to the “blue water” doctrine, also known as the “salt water thesis.” The U.S. government pushed to codify eligibility for decolonization based the presence of “blue water” between the colony and the colonizing country.[14] And it did this in attempt to avoid questions from having to deal with the Native American question in relation to self-determination after Belgium challenged the U.S. in response to being pressured about its African colonies.[15] The decades-long work to develop the UN Declaration on the Rights of Indigenous Peoples passed in 2007 emerged from this historical exclusion.

Even after the UN General Assembly’s passage of the Declaration on the Rights of Indigenous Peoples in 2007, there is no consensus. This difference in legal interpretation over the concept of both “self-determination” and “peoples” was reflected in the final version presented to the General Assembly, in which the four votes against the Declaration came from the Anglo settler states, as mentioned by Massad. Those states voted no despite the fact that Article 46 of the Declaration limits claims of secession and independence by indigenous peoples. It states, “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent States.”[16]

But, even though “indigenous” is a politically subordinated category under international law, there is a different power of the indigenous being mobilized throughout the world. In Hawai‘i, those involved in land-based indigenous resurgence projects are exercising what could be glossed as pre-monarchical Kanaka sovereignty, ea—widely understood as embodied, grounded within complex relations among and between myriad deities, humans, ancestral beings, the land and all of the natural world. In The Seeds We Planted, J. Noelani Goodyear-Kaʻōpua explains that “ea” refers to “the mutual interdependence of all life forms and forces.”[17] Ea roots Kanaka Maoli in land in a way that contrasts with the Westphalian system of states. She argues that the goal of the Hawaiian sovereignty movement should be “how to enact independence rather than call for it”. She emphasizes praxis in terms of Kanaka Maoli assertions of self-determination that move beyond the legal apparatus of recognition. Elsewhere, in A Nation Rising, she explains that ea “…also carries the meanings of ‘life’ and ‘breath,’ among other things. A shared characteristic in each of these translations is that ea is an active state of being. Like breathing, ea cannot be achieved or possessed; it requires constant actions, day after day, generation after generation…”[18]

In my newly released book, Paradoxes of Hawaiian Sovereignty: Land, Sex, and the Colonial Politics of State Nationalism (Duke University Press, 2018), I advance a critical study of contemporary state-centered Hawaiian nationalism and its attendant disavowal of indigeneity. The project offers a genealogical focus on mid-19th century Hawaiian social changes concerning land tenure, as well as gender roles and relations, and sexual norms and practices. This work rethinks the status of the Hawaiian Kingdom and indigeneity for envisioning Hawaiian decolonization, liberation, and self-determination. As coloniality does not just disappear with political and historical decolonization—the end of the period of territorial domination of lands, when countries gain independence—we need enduring decolonial modes of restructuring our worlds. Thus, Paradoxes of Hawaiian Sovereignty takes up Michel Foucault’s challenge to find alternatives to the juridical model of sovereignty as a prerequisite for decolonial imaginings of the future. In turn, I argue that it is imperative to reconsider Hawaiian indigeneity as an epistemological resource for rethinking land, gender, sexuality, and the very concept of sovereignty. We must look to indigenous values that are not premised on capitalist exploitation, destructive land tenure practices, gender supremacy, or sexual subordination in order to suggest a new ethics of relationally that are life sustaining.

Yet, in the Hawaiʻi case, there is a federally driven proposal to recognize a “Native Hawaiian Governing Entity.” The scheme is dressed up as offering parity with what recognized tribal nations are afforded as domestic dependent nations, but it does not even offer that. U.S. federal recognition for Native governing entities resembles the two-state solution as the “answer” to Palestine. In the United States at least, the two-state solution is the only model of sovereignty that has received mainstream attention. But, as many Palestinian critics have argued, the two-state solution is unjust at its core because it is premised on the continued acceptance of the Zionist claim to Palestine as being the exclusive land of Jewish people. It is fundamentally flawed as it denies Palestinians the Right of Return; abandons the Palestinians living within Israel ‘48; and does not provide Palestinians any semblance of an independent sovereign state.

Instead of one state or two states, when we think about indigenous sovereignty, then Palestinian self-determination is elevated and highlighted and it is no longer a question of solving the “Native problem” for the settler, but rather goes to the heart of the issue of ending colonial violence and settler colonialism. For many in the Palestine solidarity movement, in ways that parallel the Hawaiʻi case, there is a split between those who call for the end of the occupation, and those who insist on getting to the settler colonial roots of the entire Israeli national project. Given all the problems inherent in a discussion of occupation under nation-state paradigms, if we shift away from statist solutions, we can envision other possibilities. Towards this aim, some scholars and activists are exploring what a “no-state solution” might look like.

With regard to these two current nationalist movements, asserting sovereignty and self-determination by citing international law is a necessary tactic by which to challenge U.S. and Israeli domination, respectively. This, then, calls for accountability to indigenous peoples and the development of meaningful modes of solidarity that promote decolonial practices of relationships not premised on state recognition or other forms of (non-consensual) domination.

[1] In 1947 General Assembly set up a special committee to report on the information received. In 1949, this committee was established as the Committee on Information from Non-Self-Governing Territories. https://www.un.org/en/decolonization/history.shtml.

[2] The United Nations and Decolonization, Non-Self-Governing Territories, March 11, 2019, http://www.un.org/en/decolonization/nonselfgovterritories.shtml (accessed June 25, 2019).

[3] “U.S.V.I. Could Remain with U.S. or Seek Independence; U.S. Gov’t Says,” The Virgin Islands Consortium, April 3, 2016, https://viconsortium.com/breaking-news/u-s-v-i-could-remain-with-u-s-or-seek-independence-u-s-govt-says/ (accessed June 25, 2019).

[4] Carlyle G. Corbin, “Choose or Lose: U.S. Virgin Islands in 2017,” Pacific Island Times, January 5, 2017, https://www.pacificislandtimes.com/single-post/2017/01/06/Choose-or-Lose-US-Virgin-Islands-in-2017 (accessed June 25, 2019).

[5] See Keith Camacho, “Uncomfortable Fatigues: Chamorro Soldiers, Gendered Identities, and the Question of Decolonization in Guam,” Julian Aguon’s interview by Amy Goodman on Democracy Now!; “Resisting the Proposed Military Buildup on Guam.”

[6] See The Colbert Report, rebroadcast April 30, 2008, http://www.dailykos.com/story/2008/05/01/507242/-VIDEO-Colbert-on-the-importance-of-Guam# (accessed June 25, 2019). “US Military Gearing up on Guam,” http://www.defenseindustrydaily.com/us-military-gearing-up-on-guam-03011/ (accessed June 25, 2019).

[7] Jerick Sablan, Pacific Daily News, November 29, 2018, https://www.guampdn.com/story/news/2018/11/29/federal-judge-advises-other-options-chamorro-land-trust-suit/2145369002/ (accessed June 25, 2019).

[8] See Jerick Sablan, Pacific Daily News, November 29, 2018, https://www.guampdn.com/story/news/2018/11/29/federal-judge-advises-other-options-chamorro-land-trust-suit/2145369002/ (accessed June 25, 2019).

and Steve Limtiaco, “Land Trust Faces Legal Test in Federal Court this Week,” Pacific Daily News USA TODAY Network, November 27, 2018, https://www.guampdn.com/story/news/2018/11/27/land-trust-faces-legal-test-federal-court-week/2121185002/ (accessed June 25, 2019).

[9] See “American Samoa Demographics Profile 2014,” CIA World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/aq.html (accessed June 25, 2019).

[10] See Pema Levy, “Obama Administration Using Century-Old Racist Case Law to Block Citizenship,” Mother Jones, February 23, 2015, http://www.motherjones.com/politics/2015/02/obama-birthright-citizenship-racist-american-samoa-tuaua (accessed June 25, 2019).; and Steve Limtiaco, “Court Hears Arguments in American Samoans’ Citizenship Case,” Washington Times, February1, 2015, http://www.washingtontimes.com/news/2015/feb/1/court-hears-arguments-in-american-samoans-citizens/?page=all (accessed June 25, 2019)..

Steve Limtiaco, “U.S. Citizenship For Am. Samoans Could Jeopardize Traditional Way Of Life,” Pacific Islands Report, September 9, 2014, http://pidp.eastwestcenter.org/pireport/2014/September/09-04-an.htm (accessed June 25, 2019).

[11] Eni F. H. Faleomavaega, “American Sāmoa: An Anomaly for an Unincorporated and Unorganized U.S. Territory,” Navigating the Future: A Samoan Perspective on U.S.-Pacific Relations (Suva: University of the South Pacific, Institute of Pacific Studies, 1995); Dan Taulapapa McMullin, “The Passive Resistance of Samoans to U.S. and Other Colonialisms,” in Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, ed. Joanne Barker (Lincoln: Nebraska University Press, 2005). The current congressional delegate representing American Samoa is Amata Coleman Radewagen. See: https://radewagen.house.gov (accessed June 25, 2019).

[12] Elfren Rivera Ramos, “Deconstructing Colonialism: The ‘Unincorporated Territory’ as a Category of Domination,” in Foreign in a Domestic SensePuerto Rico, American Expansion, and the Constitution, eds Christina Duffy Burnett and Burke Marshall (Durham: Duke University Press, 2011).

[13] “Declaration on the Granting of Independence to Colonial Countries and Peoples,” Gen, Ass. Res. 1514, December 14, 1960, http://www.un.org/en/decolonization/declaration.shtml (accessed June 25, 2019). For more information, also see http://untreaty.un.org/cod/avl/ha/dicc/dicc.html (accessed June 25, 2019).

In 1961 the United Nations institutionalized The Special Committee on Decolonization with the purpose of monitoring implementation of the Declaration. By 1963 it merged with a new Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. “Independence of Colonial Peoples,” Nations Encyclopedia, https://www.nationsencyclopedia.com/United-Nations/Independence-of-Colonial-Peoples.html (accessed June 25, 2019).

[14] Audrey Jane Roy, “Sovereignty and Decolonization: Realizing Indigenous Self-Determination at the United Nations and in Canada” (M.A thesis, University of Victoria, 2001), 13-15.

[15] See ibid.

[16] See “Declaration on the Rights of Indigenous Peoples,” Office of the United Nations High Commissioner for Human Rights, 2007, http://www2.ohchr.org/english/issues/indigenous/declaration.htm (accessed October 12, 2011).

[17] Noelani Goodyear-Kaʻōpua, The Seeds We Planted: Portraits of a Native Hawaiian Charter School (Minneapolis: University of Minnesota Press, 2013).

[18] Noelani Goodyear-Kaʻōpua, “Introduction,” in A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty, ed. Noelani Goodyear- Kaʻōpua, Ikaika Hussey, Erin Kahunawaika’ala Wright (Durham: Duke University Press, 2014), 4.

 

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About J. Kēhaulani Kauanui

J. Kēhaulani Kauanui is Professor of American Studies and affiliate faculty in Anthropology at Wesleyan University, where she teaches courses on indigenous studies, critical race studies, settler colonial studies, and anarchist studies. She is the author of Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Duke University Press 2008) and Paradoxes of Hawaiian Sovereignty: Land, Sex, and the Colonial Politics of State Nationalism (Duke University Press 2018). She is also the editor of Speaking of Indigenous Politics: Conversations with Activists, Scholars, and Tribal Leaders (University of Minnesota Press 2018), which is based on the radio program she produced and hosted for seven years, “Indigenous Politics: From Native New England and Beyond” that was widely syndicated through the Pacific network. Kauanui currently serves as a co-producer for an anarchist politics show called, “Anarchy on Air,” a majority-POC show co-produced with a group of Wesleyan students, which builds on her earlier work on another collaborative anarchist program called “Horizontal Power Hour.” Kauanui is one of the six original co-founders of the Native American and Indigenous Studies Association (NAISA), established in 2008. And she proudly serves as an advisory board member of the U.S. Campaign for the Academic and Cultural Boycott of Israel.


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