Legal status of Hawaii

The legal status of Hawaii—as opposed to its political status—is a subject of scholarly and legal debate. While Hawaii is internationally recognised as a state of the United States of America whilst also being broadly accepted as such in mainstream understanding, there is critique regarding the international legality of this status. The viewpoint that Hawaii is an independent nation under U.S. occupation is circulated in academic circles, school curriculum;[1] the U.N. and other international forums;[2] and in daily dialogue in Hawaii. The legality of control of Hawaii by the United States has also been brought up in cases in the U.S. Supreme Court,[3] in U.S. District Court,[4] and in international legal actions.[3] Outside of Hawaii, this legal debate is relatively unknown.

Background

Main article: History of Hawaii

The islands that we know of today as Hawaii were settled by Polynesian explorers some time around 350 AD. The indigenous inhabitants are referred to as kānaka maoli. After 1778, and the arrival of James Cook, populations levels changed drastically and eventually the islands would be unified in 1795 under the leadership of Kamehameha I. Within one hundred years of the founding of the kingdom, American political and religious influence would erode the powers of the indigenous monarchs and eventually overthrow the kingdom on January 17, 1898.[5]

1893 U.S. presidential (Blount) investigation

James Blount

A provisional government was established which favored annexation. U.S. President Grover Cleveland rejected the provisional government for the illegal overthrow of a sovereign nation and demanded the restoration of Queen Liliʻuokalani to her rightful place as ruler of the Kingdom of Hawaii.[6] The new government refused and the Republic of Hawaii was declared instead. Cleveland sent Georgia Congressman James Henderson Blount to investigate the matter. Following his investigation, Blount issued a 1342-page report on July 17, 1893,[7] which called the coup an "act of war" against a friendly and independent nation, and recommended that appropriate measures be taken by the U.S. to restore the Hawaiian Kingdom. The Cleveland Administration, and particularly Secretary of State Gresham, recommended the fair yet forcible removal of the usurpers from power.[8] They were advised, however, that this would require a Declaration of War. It was doubtful that Congress would pass such a measure against its own citizens.

Cleveland's attempts at restoration

Grover Cleveland

Cleveland nonetheless advocated for intervention. Meanwhile, the new Minister to Hawaii, Alfred Willis, asked the Queen if she would pardon the usurpers if restored. The Queen stated that she was legally bound to follow the 1887 Constitution (ironically, forced on her brother Kalākaua by many of the same usurpers in question), which required either banishment or death as a punishment for treason. Although it was well known that she was strongly against capital punishment, Willis reported to the American press that she had told him that the conspirators should be "beheaded". The press quickly inflamed the situation, reporting that the Queen intended to decapitate every white person in Hawaii.[9] The reaction among white people in both Honolulu and Washington was riotous, and Cleveland was forced to abandon his course of action, handing the matter over to Congress, who, tiring of the conflict and lacking the means to remove the usurpers without risking a fiasco, recognized the Republic. Willis tried to undo his actions, and within days obtained a statement from the Queen that clarified the matter, but the damage had already been done.

Cleveland continued to support Hawaii, but his own stability was becoming increasingly shaky. His strong stances for the gold standard, for the upholding of treaties with Native Americans (which, in one case, returned four million acres to the Winnebago and Crow Creek peoples, angering tens of thousands of American settlers who had gathered in readiness to occupy them)[10] and against imperialism and involvement in Nicaragua, along with a multitude of personal controversies and finally, his disastrous attempt at intervention in the Pullman Strike left him totally unable to engage in contentious action,[11] particularly once the situation became volatile.

1894 Senate (Morgan) investigation

John Morgan

Dissatisfied with Blount's findings, pro-annexation elements in the U.S. Senate sought another viewpoint. In 1894, the U.S. Senate Foreign Relations Committee sent Senator John Tyler Morgan to make a second investigation. Morgan, a staunch segregationist and former Grand Dragon of the Ku Klux Klan[12] who had speculated on the use of Hawaii (along with the Philippines, Congo, and Cuba) as an alternative site for relocation of Blacks,[13] was sent to challenge Blount's findings. Interviewing primarily Caucasian settlers,[14] befriending coup organizer Lorrin Thurston and emphasizing the strategic value of Hawaii, Morgan's report exonerated the U.S. military of direct responsibility.[15][16] Though the report was never accepted by the Senate,[17] it was used in subsequent years to justify the U.S.' actions. Meanwhile, Minister Stevens had already been reprimanded and forced into retirement by the Cleveland administration for his unauthorized role in the coup. Stevens did not oppose this action, having lost a child to drowning in Maine just three days after the Overthrow, which had plunged him into deep depression. He was exonerated by Morgan's report shortly before his own death in 1895.[18] Stevens also received a silver tea service made of melted Hawaiian Kingdom coins in thanks from the new Provisional Government,[19] which is still in curation by his descendants.

1895 Trial and abdication

In 1895, a small group of royalists led by Robert William Kalanihiapo Wilcox clashed with Republic forces on the slopes of Diamond Head, and in Mōʻiliʻili. Casualties were minimal. The Republic, by this time, was extremely well-armed: not only had Sanford B. Dole spent the Kingdom's money on armaments, he had borrowed additional money to arm and pay a formidable militia.[20] Wilcox and the others, including two haole of prominent families, were arrested. Liliʻuokalani was accused of "conspiring" with and "aiding" them, and although evidence was scanty, she was found guilty and imprisoned in a room in ʻIolani Palace for several months. Wilcox and five others were tried for treason, and sentenced to be hanged. The imprisoned Queen was given an ultimatum: if she formally abdicated, Wilcox and the others would be pardoned. Whether or not she supported their actions, the Queen did not want these men to die. After sending a message explaining her duress, she therefore signed an abdication statement, pre-written by members of the Republic, praising that government and relinquishing her personal right to the throne. She was directed to sign as "Liliʻuokalani Dominis", which was not her legal name. It should be noted that, in addition to clear duress, her abdication did not transfer any governmental power, which would not have been hers alone to transfer. However, this fact was greatly re-interpreted in history texts and curriculum, giving rise to the widespread idea that the Queen had relinquished the Kingdom, and not merely her own personal position in it, by abdicating.

Annexation and anti-annexation campaigns

From 1893 to 1896, the Republic of Hawaii actively sought annexation to the United States. However, despite intensive debate on the matter in the legislature, annexation was strongly opposed by the U.S. Presidency, the people of Hawaii, and much of Congress; the Turpie Resolution in 1894 took annexation off the table entirely.

Anti-Annexation petitions, signed by the majority of adults in Hawaii, 1897

In 1896, expansionist president William McKinley was elected. In 1897, McKinley negotiated a treaty with the Republic of Hawaii, which he attempted unsuccessfully to pass through Congress; however, only 46 of the 60 requisite votes were procured, and so the treaty failed.

Senator Pettigrew and Senator Turpie insisted that the Kanaka Maoli of Hawaii be given a chance to vote on annexation. But Senator Morgan and the other pro-annexation Senators knew that if a vote were taken, it would be overwhelmingly in favor of Hawaii's independence. In a report, these Senators wrote, "If a requirement should be made by the United States of a plebiscite [vote] to determine the question of annexation, it would work a revolution in Hawaii which would abolish its constitution." They knew, in other words, that if the people were allowed to vote, not only would they reject annexation, they would also reject the Republic that had been forced upon them against their will.[21]

The majority of the population in Hawaii was indeed vociferously opposed to U.S. annexation. In a single weeklong petition drive, 21,000 signatures—representing well over half of the adult population of Hawaii at the time—were procured by horseback, boat and foot travel. These petitions were hand-carried to Washington and delivered to The United States Senate.

Spanish-American War and Newlands Resolution

Annexation Troops
U.S. and Republic troops at U.S. flag-raising in 1898

In 1898, Cuba and the Philippines declared independence from Spain. The U.S. declared war on Spain as well, as it openly wanted control of these countries. With the Spanish–American War as its rationale, the US Congress passed a joint resolution, referred to as the Newlands Resolution, by a simple majority of both houses. The United States asserted that it had legally annexed Hawaii. Critics argued this was not a legally permissible way to acquire territory under the U.S. Constitution. As well as this, there were continued protests in Hawaii and Washington by supporters of the Kingdom. The flag of the United States was raised over Hawaii on August 12, 1898, protected by the United States Navy.

Territory of Hawaii

The Territory of Hawaii officially lasted from April 30, 1900, when President McKinley signed the Hawaii Organic Act, until 1959. U.S. military expansion was enormous during this period, and commerce grew intensively. At the same time, use of the Hawaiian language was punished in schools,[22] and native cultural practitioners were repressed.[23][24]

Statehood plebiscite and Admissions Act

From the time of the United Nations' formation in 1946 until 1959, Hawaii was on the United Nations list of Non-Self-Governing Territories eligible for decolonization. The United States proposed a vote between two options: 1) become a State by passing the Admissions Act, or 2) remain a United States Territory. 93% of voters supported statehood in the statehood vote.[25]

Ballot (inset) and referendum results for the Admission Act of 1959, showing choice between State and Territory status.

Contemporary legal actions

Larsen v. Hawaiian Kingdom

In the 1990s Lance Larsen was repeatedly arrested for driving a car in Hawaii while failing to have a license plate and drivers' license issued by the State of Hawaii. 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, in 1999 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. 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."[26] 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.[27]

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..[28]

Critics assert that it was just theatrics, 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.

Petitions to the International Court of Justice

According to the Handbook of the ICJ, "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.'

Hawaii v. Office of Hawaiian Affairs, (2009)

According to the decision of the U.S. Supreme Court of March 31, 2009, the "whereas" clauses of the 1993 Congressional Apology Resolution have no binding effect,[29] and the resolution does not change or modify the "absolute" title to the public lands of the State of Hawaii. The decision also affirmed that federal legislation cannot retroactively cloud title given as a part of statehood in general and that the State of Hawaii has not established title to all land transferred to it from the federal government in 1959.,[29] The case was remanded to the State Supreme court to allow an injunction from the alienation of the Crown or Ceded lands, allowing for a finding consistent with federal law. Justice Alito in his opinion held that the court did not have jurisdiction over Hawaiian Law and suggested the question of who held "Perfect title" would have to be settled by further litigation.,[29]

Historical legal actions

International recognition of the Republic of Hawaii

Documents dating to 1898 from the Hawaii State Archives have revealed official letters of international recognition of the Republic of Hawaii as the legitimate successor to the Kingdom of Hawaii from every nation which ever had diplomatic relations with the Kingdom. Images of these documents are now available online.[30]

De Lima v. Bidwell

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

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. The United States

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.[31]

U.S. investigations

The Blount Report

See also: Blount Report

On July 17, 1893, James H. Blount was 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. As the president of the Provisional Government of Hawaii flatly refused to reinstate the Queen, 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.[32]

The Morgan Report

See also: Morgan Report

On February 26, 1894, after Cleveland's referral of the matter to Congress, a second investigation committee was formed under the leadership of Senator John Tyler Morgan, an expansionist and segregationist. Over the course of several months, with extensive testimony under cross examination, they came to the exact opposite conclusion that Blount reached. 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.[33]

Native Hawaiians Study Commission report

The Native Hawaiians Study Commission Report was commissioned on June 23, 1983, by the Department of the Interior to study the conditions of Native Hawaiians. Its findings were grave.[34]

United States Commission on Civil Rights report

Considering the Akaka Bill on May 4, 2006, 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".[35]

U.S. legislation

See also

Notes

  1. ↑ Maori and Native Hawaiian Education | Umi Perkins – Academia.edu
  2. ↑ Hawai'i and the United Nations | Cultural Survival
  3. 1 2 Supreme Court hears “ceded” lands case | Statehood Hawaii
  4. ↑ Hawaiian Kingdom – David Keanu Sai v. Barack Obama, et al
  5. ↑ Joseph G. Ponterotto; J. Manuel Casas; Lisa A. Suzuki; Charlene M. Alexander (24 August 2009). Handbook of Multicultural Counseling. SAGE Publications. pp. 269–271. ISBN 978-1-4833-1713-7. Cite uses deprecated parameter |coauthors= (help)
  6. ↑ Michelle Ann Abate (28 June 2008). Tomboys: A Literary and Cultural History. Temple University Press. pp. 134–135. ISBN 978-1-59213-724-4.
  7. ↑ Ward Churchill (1 January 2003). Perversions of Justice: Indigenous Peoples and Anglo-american Law. City Lights Books. p. 112. ISBN 978-0-87286-411-5.
  8. ↑ JH Blount — US Congress, House. Hawaiian Islands, Exec. Doc, 1893
  9. ↑ Proto, Neil Thomas. The rights of my people: Liliuokalani's enduring battle with the United States, 1893–1917. Algora Publishing, 2009
  10. ↑ Brodsky, Alan. Grover Cleveland: A Study in Character, (2000). ISBN 0-312-26883-1
  11. ↑ Nevins, Allan. Grover Cleveland: A Study in Courage (1932) Pulitzer Prize-winning biography. ASIN B000PUX6KQ.
  12. ↑ Encyclopedia of Alabama: Ku Klux Klan in Alabama during the Reconstruction Era
  13. ↑ Proto, p.84
  14. ↑ Transcribed Morgan Report – TheMorganReport
  15. ↑ The Morgan Report: Summary and Conclusions of the Senate investigation into the Hawaii Matter
  16. ↑ Native Hawaiians Study Commission Conclusions and Recommendations June 23, 1983
  17. ↑ Proto,Neil Thomas. The rights of my people: Liliuokalani's enduring battle with the United States, 1893–1917. Algora Publishing, 2009, p.89
  18. ↑ JOHN L. STEVENS IS DEAD – He Was Minister to Hawaii During the Late Crisis. ONCE THE PARTNER OF MR. BLAINE He Aided the Organization of the Republican Party in Maine – Long Ca...
  19. ↑ Kents Hill School Notables
  20. ↑ Proto, p.90
  21. ↑ Anti-annexation petitions – Page 1
  22. ↑ Noenoe Silva, "Aloha Betrayed: Native Hawaiian Resistance to American Colonialism." Durham (North Carolina) and London: Duke University Press, 2004. ISBN 0-8223-3349-X
  23. ↑ Trask, Haunani-Kay. "The Struggle For Hawaiian Sovereignty — Introduction".
  24. ↑ Kekuni, Blaisdell. "Historical and Philosophical Aspects of Lapa'au Traditional Kanaka Maoli Healing Practices". In Motion Magazine. Retrieved December 21, 2012.
  25. ↑ Smith, Keri E. Lyall. "The States and Indigenous Movements." Routledge. November 30, 2006. P.56
  26. ↑ HK Strategic Plan
  27. ↑ Hawaiian Kingdom Strategic Plan p. 8
  28. ↑ Larsen – Hawaiian Kingdom Arbitration AWARD section 7.4
  29. 1 2 3 "Hawaii et al v Office of Hawaiian Affairs" (PDF). United States Supreme Court. March 31, 2009. Retrieved July 24, 2014.
  30. ↑ "Recognition of the Republic of Hawaii « The Mystery of Hawaiian History". Retrieved 2014-07-26.
  31. ↑ Wikisource:Liliuokalani v. The United States
  32. ↑ "Blount Report – Page 1". Retrieved 2014-07-26.
  33. ↑ "TheMorganReport". Retrieved 2014-07-26.
  34. ↑ ERIC – Native Hawaiians Study Commission: Report on the Culture, Needs and Concerns of Native Hawaiians, Pursuant to Public Law 96-565, Title III. Final Report. Volume I., 198...
  35. ↑ http://www.usccr.gov/pubs/060531NatHawBriefReport.pdf
  36. ↑ UH Collection of Congressional Debate regarding the Organic Act of 1900
  37. ↑ Chapter I
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