LETTER TO THE EDITOR

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July 21, 2002

OLOHEGA (SWAINS ISLAND)

As a descendant of Tokelauans from Olohega (Swains Island) and as a University of Hawai‘i graduate student whose area of research includes Olohega, I would like to respond to the comments from the New Zealand Ministry of Foreign Affairs on Michael Field's article, "Popular Music Group Demanding U.S. Return Remote Swains Island to Tokelau" (see: http://166.122.164.43/archive/2002/July/07-04-04.htm) and to the letter from former U.S. Ambassador William Bodde, Jr. (See: http://166.122.164.43/archive/2002/July/07-16-23.htm). 

First, the late 1970s context in which the The Treaty Between New Zealand and the United States of America on the Delimitation of the Maritime Boundary Between Tokelau and the United States of America (1980) was devised shows that New Zealand, Tokelau's colonial administrator, did not negotiate in the best interest of Tokelau. While New Zealand's role in the negotiations merits a thorough analysis, only a few points will be made here. Currently, Tokelau's three atolls-Atafu, Nukunonu, and Fakaofo-with a combined land area of approximately 4.70 square miles lie along a 241-mile span of sea, 108 miles to the north of American Samoa. Despite colonial machinations that resulted in the 1925 annexation of Tokelau's fourth atoll-Olohega (Swains Island)-by the United States, Tokelauans have maintained all along that Olohega is communal lands that, until its alienation, was cultivated and fished by Tokelauans since time immemorial. Restored to Tokelau's jurisdiction, Olohega will add 108 miles of ocean territory to the south and another continuous 800 acres of land with an enclosed, brackish lagoon, capable of supporting agriculture. Add to this a 200-mile exclusive economic zone that extends outward from all of Tokelau's land base and the result is a significant 25% increase to Tokelau's natural resource base. 

This is the area on which New Zealand "advised" Tokelau to rescind its claim, because "New Zealand's foremost international legal expert" felt that "Tokelau's claim was weak and would not succeed in an international tribunal." It is troubling that New Zealand could know before the claim went to the tribunal that Tokelau's claim "would not succeed?" Equally unsettling is that New Zealand's "international legal expert" failed to notice (or ignored altogether) significant and relevant cases previously arbitrated by the International Court of Justice (The North Sea Continental Shelf Cases [1969], Anglo-French Arbitration on the Delimitation of the Continental Shelf [1977-78], Treaty Between Papua New Guinea and Australia [1974]). In these cases, the principles of "equitable solutions," "preexisting rights, such as in a long-standing historic claims," and "acknowledging and protecting the traditional way of life and livelihood for the traditional inhabitants including their traditional fishing and free movement," were central to the arbitration and the final terms of these agreements.1 Or, could it be because of the outcomes of these landmark arbitrations that New Zealand, as the junior partner in the Australia-New Zealand-United States Treaty (ANZUS), "advised" the Tokelauan leaders to sign over Olohega to the United States before going to Court? 

University of Hawai216;i Law Professors Sherry Broder and Jon Van Dyke summarized the outcome of the Anglo-French Arbitration [1977-78] in which France successfully arbitrated for additional water rights, "an enclave," using the Channel Islands, which is under the jurisdiction of the United Kingdom, but located close to the French coast. Broder and Van Dyke showed how this case paralleled that of Tokelau's claim to Olohega and thus, merited "special circumstances." They argued that "Tokelau would be able to present additional equitable arguments" because "Swains Island [Olohega] has traditional ties to Tokelau230;"2 Furthermore, they noted that Olohega is 108 miles from Tokelau but 279 miles from American Samoa. With the "Treaty" signed, Tokelauans will never know the strength of their claim, unless they pursue it themselves. This is, indeed, what Tokelau is doing and what Opetaia Foa216;i is promoting. 

Also, it should be noted that since the 1970s, New Zealand's administrators for Tokelau were repeatedly stating its obligation, as a member of the United Nations, to develop self-government in Tokelau (Kalolo 1999).3 Self-government requires a sustainable economic base. The "Treaty" has no apparent economic benefits for Tokelau, but rather increases Tokelau's economic dependency by alienating traditional/potential resources. What was New Zealand thinking? 

Secondly, Tokelau's claim to Olohega is firmly rooted in its oral traditions (see Matagi Tokelau, 1900; Ickes 1999).4 Colonial records, furthermore, corroborate local oral histories on the presence of Tokelauan people on Olohega before the arrival of foreigners. It is, instead, the U.S. claim and the documents used to annex Olohega-Joint Resolution 294 and supplemental literature-that are weak. These were laid bare in an analysis that showed the U.S. annexation of Olohega was based on indefensible provisos, for example, the Guano Acts (1856).5 No guano was ever found, mined, or shipped from Olohega. This fact, pointed out by Secretary of State Charles Hughes in a 1924 Report on the Status of Olohega, as well as other stipulations of the Guano Acts, negate the Acts as a valid basis on which the United States could claim Olohega. (for more on the annexation analysis, see Ickes, 1999). That the United States initiated the "Treaty" in the first place, is an admission that its claim to Olohega is perhaps, less convincing in an atmosphere of decolonization.

Thirdly, the "Treaty" consultations DID NOT include hundreds of Tokelauans residing in the United States. Because of Olohega's annexation in 1925, Tokelauans there became American Nationals. In 1953, their petition to the Attorney General of American Samoa seeking an investigation of, and citing labor and civil abuses by the local copra plantation was met with an eviction of the signatories and their families-without due process of law. Co-sponsored by plantation proprietor Alexander E. Jennings and the U.S. Department of Interior-appointed acting Governor of American Samoa, L.P. Draney, the evictions relocated individuals and entire families to Pago Pago where they faced extreme social, political, and economic hardship. Samoa's protective land laws, while rightfully beneficial to native Samoans, denied the stranded Tokelauan minority access to farm and residential land and led many families to Honolulu and other parts of the continental United States. This group, the native people of Olohega and their descendants, were not included in the "extensive consultation" on the "Treaty".

In the Summer of 2000, I spoke with Tokelauans (including two residing faipule) in the islands, Samoa, and American Samoa, who remember the time of the "Treaty" talks. Some expressed anger, others, their disappointment with their representatives for signing. As recently as May of 2002, a Porirua woman asked the only surviving Tokelauan signatory, Amosia Patea, why he signed the treaty. Amosia replied that he did not really understand it (the Treaty). The Tokelauan leaders did sign the "Treaty," but it is becoming clearer that, in this "international" context, they did not represent the will of the people of Tokelau. Indeed, there are cultural nuances that assign the Tokelauan concept of "representation" a different understanding from that of the foreign parties. While this cannot be explored here, this element of the negotiations, nevertheless, deserves consideration.

Like those of many island communities in the Pacific, Tokelau's economic and cultural survival as a self-governing people is firmly rooted in its surrounding seas. It is imperative, then, that such island communities maintain control over their ocean domain. "In addition to any economic payoff," "controlling the known and potential wealth that lie within this domain has a psychological dimension."6 Opetaia Foa̵6;i, as do other Tokelauans, understands this statement. I gratefully acknowledge his group, Te Vaka, for their active role in taking Tokelau's Olohega story to the international community.

Betty P. Ickes University of Hawai‘i at Manoa

1. Broder, Sherry and Jon Van Dyke. "Ocean Boundaries," University of Hawaii Law Review, 4:1, 1982. 2. Ibid., 55. 3. , Kelihiano. "Political Reviews, Polynesia-Tokelau," The Contemporary Pacific, Volume 11, no. 1, Spring 1999, University of Hawai216;i Press. 4. Matagi Tokelau: Histories and Traditions of Tokelau. English Ed. Translated from Tokelauan and edited by J. Huntsman and A. Hooper. Apia and Suva: Office of Tokelau Affairs & Institute of Pacific Studies, 1991. 5. Ickes, Betty. "Expanding a Colonized Landfall: Relocating Olohega in the History of Tokelau," MA Thesis, University of Hawai216;i, Department of History, 1999. 6. Broder and Van Dyke, 1982.

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