Legal status of Hawaii

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The legal status of Hawaii refers to the standing of Hawaii as a political entity. Generally, the debate has primarily surrounded the legal status of Hawai'i relative to the United States of America. Hawaii is usually considered to be a state under the sovereignty of the United States of America. However, it is a subject of dispute often raised in discussions surrounding Hawaiian Sovereignty and the historical/legal issues surrounding the American-facilitated overthrow of the Hawaiian government in 1893. Much of the debate centers around Hawaii's current political status, and the question of de facto versus de jure international standing for the State of Hawaii.

Contents 1 History 2 Parallel overview 3 Sovereignty Organizations 4 Contemporary legal actions 4.1 Larsen v. Hawaiian Kingdom 4.2 Petitions to the International Court of Justice 5 Historical legal actions 6 U.S. investigations 7 U.S. legislation 8 See also 9 Notes

[edit] History

The dispute dates back to events in the 19th century. In 1887 the power of the constitutional monarchy of the Hawaiian Kingdom was forcibly taken by American and European business interests under the "Bayonet Constitution" promulgated by armed force upon King Kalākaua. In 1893 Queen Liliʻuokalani was overthrown when she attempted to promulgate a new constitution that would restore power to the throne. Modern-day sovereignty activists and many others view the actions of U.S. Minister John L. Stevens and the U.S. Marines that landed during the crisis as having been decisive in the overthrow of the monarchy.

After immediate annexation was thwarted by Grover Cleveland, the Republic of Hawaii was declared, and in (1898) under the William McKinley administration, annexation of Hawaiʻi was enacted. However, this was done via a Joint Resolution of Congress which many scholars believe is not legal under international law.^[1][2]

Internally, the U.S. military has been exonerated of any direct responsibility regarding the overthrow of 1893 by the U.S. Senate.^{[citation needed]} It is not disputed that U.S. marines and bluejackets landed during the time in question. It has also generally not been disputed within internal U.S. discussions that the U.S. troops remained neutral, although it has been asserted by Russ that their presence "made it impossible for the monarchy to protect itself."^[3] The Newlands Resolution of 1898 and the Organic Act of 1900 have been accepted by the U.S. government as well as by every nation that ever had diplomatic ties to the Hawaiian Kingdom as legally binding. In the conclusion of his book, The Hawaiian Revolution, Russ states, "In 1898 no one could say that the United States was receiving stolen goods, for by that time the new Government had secured a good title."^[4] The question of whether a "good title" can be secured by military assistance of a coup d'etat and subsequent retroactive legislative measures is a central subject of the legality dispute.

At the time of the events in question, there were no independent international venues to arbitrate between the opposing sides. As is common in coups worldwide[1], many countries which had had diplomatic relations with the Kingdom responded with the extension of recognition to the Provisional Government^{[citation needed]} and subsequently the Republic of Hawaii.^[5] Some also simultaneously extended their support to the overthrown queen;^[6] in the case of the United States, President Grover Cleveland actually expressed outrage at the actions of the Committee of Safety, and directly demanded her reinstatement until it became clear that further action would be ineffective, as President Sanford Dole refused his demands outright, and Cleveland had no political support for invading Hawaii to enforce his wishes. Annexation was a contentious issue for the U.S. citizenry and the elected officials of the U.S.

In March 1959, both houses of Congress passed the Admission Act and U.S. President Dwight Eisenhower signed it into law. (The act excluded Palmyra Atoll, part of the Kingdom and Territory of Hawaii, from the new state.) On June 27 of that year, a plebiscite was held asking residents of Hawaii to vote on accepting the statehood bill. Hawaii voted at a ratio of 17 to 1 to accept. There has been criticism, however, of the Statehood plebiscite, because the only choices were to accept the Act or to remain a territory, without addressing the issues of legality surrounding the overthrow[2][3][4]. Despite the criticism, the United Nations decolonization committee later removed Hawaii from the United Nations list of Non-Self-Governing Territories.

This article deals only with theoretical arguments regarding Hawaiʻi's de jure status under certain interpretations of international law. The debate is considered by some to resemble the same academic discourse being argued by several other activist groups in the United States, including the Texan and Alaskan Independence Movements^[7]. Hawaiian sovereignty proponents and some scholars believe that Hawaiʻi's history as an independent nation, the token presence of the U.S. military^[8][9] and the asserted violations of international treaties make the situation of Hawaii unique. Others see no great difference in the assertions of Hawaiian sovereignty activists and regional independence movements such as in Texas which was also a formerly independent nation annexed without a popular vote by joint resolution of Congress. Parallels are also drawn between the Legal status of Texas and Hawaii regarding U.S. military presence, although the case of 162 military personnel in Hawaii does not easily compare to the invasion of the Union Army.

[edit] Parallel overview

Political status of Hawai‘i
1843–1893: international recognition of Kingdom of Hawai‘i as an independent and sovereign nation-state
1893: Queen Lili‘uokalani deposed by annexationists Sanford B. Dole | Lorrin A. Thurston | Committee of Safety and indirectly by actions of U.S. minister (ambassador) John L. Stevens
Hawaiian nationalists have disputed the annexationist official United States position on the legal status of Hawai‘i ever since. However, the international community has always recognized the legitimacy of the Hawaiian Revolution of 1/17/1893.
Annexationist view	Nationalist view
Revolution, purely internal Stated goal: U.S. annexation 1893 Provisional Government 1894 Republic of Hawaiʻi, recognized by all other countries, hence legitimate 1895 Queen signs abdication document, swears allegiance to the Republic	Invasion, broke treaties; coup d'état Start of white-supremist oligarchy Illegitimate: no consent of governed Popular unrest; 1895 Wilcox rebellion Queen acted to save lives; individual cannot end existence of nation-state 1897 Anti-annexation petitions
View supported in U.S. by: Presidents Harrison & McKinley President Grover Cleveland post 2/26/1894 John Tyler Morgan The Morgan Report of 2/26/1894	View supported in U.S. by: President Grover Cleveland 12/18/1893 letter James Henderson Blount The Blount Report of 7/17/1893
After outbreak of the Spanish-American War in 1898, the U.S. covets Hawai‘i as a base for waging war in the Philippines / asserting control of the Pacific
1898 Newlands Resolution - annexation by joint resolution similar to Texas annexation   1900 Organic Act, Territory of Hawai‘i   1903 – first petition for U.S. statehood by an elected territorial legislature 1910 Lawsuit challenging transfer of crown lands and legitimacy of Republic of Hawai‘i dismissed by U.S. Court of Claims 1959 Admission Act, U.S. statehood	No consent of the governed, Newlands Resolution not a treaty, hence annexation void. Sovereignty of Hawai‘ian Kingdom continues to exist de jure, though no government is able to exercise it de facto due to long-term belligerent occupation by the U.S. beginning in 1898.
1921 Hawaiian Homelands (50% blood) 1978 Office of Hawaiian Affairs (OHA) established by state constitutional convention and referendum 1993 Apology Resolution (full text) 2005 (proposed "Akaka Bill") Native Hawaiian Gov't Reorganization Act	Reject "native" status within U.S. as obscuring clear, non-racial concept of Kingdom citizenship and sub- stituting a divisive racial concept of blood quantum instead. Ultimately (and improperly) trying to fit Hawai‘i into an "Indian tribe" model
Legal arguments basic to the two views
The Republic legitimately tendered sovereignty to the U.S.; the final congressional investigation into the matter which considered all the evidence available, including the Blount Report and testimony from Blount himself found the U.S. peacekeepers in no way aided in the overthrow. Cleveland, once a staunch supporter of Queen Liliuokalani, reversed his stance after the release of the Morgan Report.	U.S. law is not valid in Hawai‘i, as international law obliges the U.S. as occupier to administer the laws of the Kingdom as occupied country. Cleveland's reversal and exoneration of the U.S. troops by Congress do not nullify his earlier statement of 12/18/1893. Morgan Report a whitewash, and illegitimate because of the racism of both some senators, as well as those giving testimony.
Large majority vote for statehood rectifies any earlier lack of consent and denial of self-determination. The United Nations decolonization committee later removed Hawai‘i from its list of non-self-governing territories, so the vote should be seen as legitimate and binding.	Vote flawed—no UN supervision, no independence option, no bar to voting by occupier's military/civilian migrants. Delisted prematurely, as UN criteria for self-determination not met. Since U.S. actions had made Hawai‘i nationals a minority in their own country, a vote under such circumstances is a sham
Related topics: History of Hawaii | Hawaiian sovereignty movement

[edit] Sovereignty Organizations

Hawaiian Kingdom Government

Nalayne Mahealani Asing heads^[10] the organization, which emphasizes reinstatement of the Kingdom. The organization is based on the island of O'ahu. The Hawaiian Kingdom Government has utilized the State's system in the enactment of an "Apostille process"^[10], which seeks to acknowledge Asing as the legitimate heir to the illegally-overthrown Kingdom.

Asing's stated goals^[11] for Hawaii are:

Hawai'i Society of Law and Politics

David Keanu Sai serves as Acting Regent of the Hawaiian Kingdom. Sai has a multi-branched strategic process, which has included the filing of papers in the State of Hawaii Bureau of Conveyances.

The Society has compiled a complex political and legal argument for the restoration process.^{[citation needed]}

Sai was convicted of felony attempted theft in 1999, for attempting to assert native land claims. His appeal was denied July 20, 2004.

Kingdom of Hawai'i

Edmund Keali'i Silva serves as the head of this organization, in which he is recognized as King of Hawaii, based on lineage. The organization has published a declaration of independence, which is available on the internet.^[12]

Was convicted of "stealing" $500,000 by Patricia Corbet, who lost money based on land claims that were not recognized by the State; subsequently, Silva spent a decade or so in prison. On several occasions, he appealed for release back to Hawaii, claiming that as King he would be able to pay back any moies owed.^[13][14] "As King, however, I would have resources available to me personally that would allow me to begin the repayment process and make substantial progress in a relatively short period of time."

Nation of Hawai'i

Dennis "Bumpy" Pu‘uhonua Kanahele (http://www.hawaii-nation.org)

was elected as "Head of State" by group of 200 people on March 6, 1994.

He is known for his current role in developing a national bank for Hawai'i, and for his work in supporting the healing of Hawaiian prisoners. Kanahele holds a seat on the International Indian Treaty Council, which was once held by Kawaipuna Prejean.

Was arrested for helping to "harbor" (i.e. knowing his location and not disclosing it) a federal tax resistor, Nathan Brown, who was protesting the occupation of Hawai'i by refusing to pay federal tax, in 1994.

John Kekoa Lake^[15] (http://reinstated.org)

Claims to government of the Kingdom of Hawaii based on 24 volunteer representatives and 24 volunteer nobles electing a government on March 13, 1999, and additional small scale elections^[16]

James Kimo Akahi

Claims to be King of Hawaii based on ancestry. Supports a return to the 1840 constitution of the Kingdom of Hawaii.^[17] On March 29, 2001 Judge Shackley F. Raffetto of the 2nd circuit court on Maui sentenced Akahi Nui to a five year prison term after he was convicted of criminal trespass in the second degree.^[18]

[edit] Contemporary legal actions

[edit] Larsen v. Hawaiian Kingdom

Lance Larsen, was repeatedly arrested for driving a car in Hawai'i while failing to have a license plate and drivers' license issued by the State of Hawai'i. In consultation with David Keanu Sai, who claims to be the acting Regent of the Hawaiian Kingdom because he filed co-partnership papers with the State of Hawaii Bureau of Conveyances, Larsen filed suit against David Keanu Sai and the United States, claiming that Sai and the United States had violated the 1849 Treaty of Commerce, Friendship and Navigation by allowing U.S. domestic law to be imposed on him.

Once the lawsuit was filed, they both immediately agreed to dismiss the United States as a defendant, and stipulated their intention to proceed together with arbitration to federal judge Samuel King. This legal move prevented any possible debate on the merits of the case, since it left only two parties who agreed on all the salient issues. Their lawsuit was dismissed, and they chose as their arbitration venue the Permanent Court of Arbitration at the Hague.^[19] At a cost of $10,000 each, they hired three arbitrators. Their actual goal was to have U.S. rule in Hawaii declared in breach of mutual treaty obligations and international law. The arbiters of the case affirmed that there was no dispute they could decide upon, because the United States was not a party to the arbitration. As stated in the award from the arbitration panel, in the absence of the United States of America, the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not. To take either course would be to disregard a principle which goes to heart of the arbitral function in international law..

Many sovereignty activists see the mere acceptance of this case by the Permanent Court of Arbitration at the Hague as an affirmation of their beliefs. David Sai, in his Hawaiian Kingdom Strategic Plan insists that "For the purposes of Phase I, the Tribunal verified the Hawaiian Kingdom to be an independent State and a subject of international law." For proof, he cites section 7.4 from the arbital award:

...the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.^[20]

Skeptics note he failed to mention the first 11 words of section 7.4, which indicated clearly that they were speaking in the past-tense:

A perusal of the material discloses that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties..^[21]

Critics assert that it was just theatrics^{[citation needed]}, and that both Larsen and Sai have done their best to conflate the Permanent Court of Arbitration and the International Court of Justice in the minds of the public to make it seem like a U.N. body has accepted the merits of their claims. Specifically, critics note that the Permanent Court of Arbitration is not part of the U.N., is open to private parties, and that appearance at the Permanent Court of Arbitration does not require nor imply any sort of legal international standing.

[edit] Petitions to the International Court of Justice

The Handbook of the ICJ states that "Only States may be parties to cases before the Court" and the Court will only decide disputes which are "submitted to it by States." Although many groups and individuals have tried to assert that the Hawaiian Kingdom is still a state, no claims to the ICJ on behalf of any of the claimants to the Kingdom have ever been recognized as legitimate. At this time, no claims are known to have been filed with the ICJ on behalf of the Kingdom. Regarding these types of petitions, the ICJ handbook states:

Hardly a day passes without the Registry receiving written or oral applications from private persons. However heart-rending, however well-founded, such applications may be, the ICJ is unable to entertain them and a standard reply is always sent: 'Under Article 34 of the Statute, only States may be parties in cases before the Court.'

[edit] Historical legal actions

• De Lima v. Bidwell, 182 U.S. 1 (1901)

Annexation via a joint resolution of Congress is legal according to American law. The United States Supreme Court wrote, "A treaty made by that power is said to be the supreme law of the land,-as efficacious as an act of Congress; and, if subsequent and inconsistent with an act of Congress, repeals it. This must be granted, and also that one of the ordinary incidents of a treaty is the cession of territory, and that the territory thus acquired is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress."

• Hawaii v. Mankichi, 190 U.S. 197 (1903)

In a 1903 criminal case, Territory of Hawaii v. Mankichi, 190 U.S. 197 (1903) the U.S. Supreme Court noted that "the status of the islands and the powers of their provisional government were measured by the Newlands resolution[.]" That point was made even more forcefully in a separate opinion in the case filed by Justice Harlan. Justice Harlan disagreed with the court on a different issue which concerned Hawaiian law as to jury trials, but on the issue of the validity of the Newlands resolution, he agreed fully with the majority, stating, "By the resolution, the annexation of the Hawaiian Islands became complete, and the object of the proposed treaty, that 'those islands should be incorporated into the United States as an integral part thereof, and under its sovereignty' was accomplished."

• Liliuokalani v. United States, 45 Ct. Cl. 418 (1910)

Liliuokalani's claims of personal ownership of the crown lands was denied by the U.S. Court of Claims, based primarily on Hawaiian Kingdom law.

[edit] U.S. investigations

• The Blount Report July 17, 1893

Sent by Grover Cleveland under secret orders shortly after his inauguration, Blount's investigation led him to believe that the U.S. was directly responsible for the overthrow of Queen Liliuokalani. He reported back to President Cleveland, who took steps to reinstate the queen based on Blount's information. Caught between a queen initially unwilling to give amnesty to her overthrowers, and the president of the Provisional Government of Hawaii who flatly refused to reinstate her, Cleveland referred the matter to Congress on December 18, 1893, with a blistering letter condemning what he believed at the time to be the U.S. role in the overthrow.

• The Morgan Report February 26, 1894

After Cleveland's referral of the matter to Congress, an investigation committee was formed under the leadership of Senator John Tyler Morgan. Over the course of several months, with extensive testimony under cross examination, they came to the exact opposite conclusion that Blount reached. Much of the testimony that Blount relied upon was recanted, and for the first time the Provisional Government position was heard. In their conclusions, the U.S. military was completely exonerated, and blame for the Hawaiian Revolution was placed squarely on the shoulders of Queen Liliuokalani.

• Native Hawaiians Study Commission Report June 23, 1983

The Native Hawaiians Study Commission Report judged that the truth lies somewhere between the Morgan Report and the Blount Report, but still dismissed the claims of those who believed the Hawaiian Revolution, annexation, and statehood were in any way illegitimate.

• United States Commission on Civil Rights Report May 4, 2006

Considering the Akaka Bill, the USCCR found that the Hawaiian Kingdom "included Native Hawaiians, but also included residents of other races and ethnicities." They recommended strongly against the Akaka Bill as "legislation that would discriminate on the basis of race or national origin and further subdivide the American people".

[edit] U.S. legislation

• Turpie Resolution May 31, 1894
• Newlands Resolution July 4, 1898
• Organic Act^[22] April 30, 1900
• Apology Resolution November 23, 1993

[edit] See also

• Legal status of Alaska
• Tribal sovereignty
• Legal status of Texas
• California secession
• Republic of Texas (group)

[edit] Notes