Legal status of Hawaii
||The neutrality of this article is disputed. (July 2014)|
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The legal status of Hawaii—as opposed to its political status—is a subject of scholarly and legal debate. While Hawaii is broadly accepted as a state of the United States of America 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; the U.N. and other international forums; 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, in U.S. District Court, and in international legal actions. Outside of Hawaii, this legal debate is relatively unknown.
- 1 History
- 1.1 Ancient history to Kamehameha I
- 1.2 Hawaiian Kingdom: early years
- 1.3 Constitutional monarchy period
- 1.4 Bayonet Constitution
- 1.5 Liliʻuokalani's ascension and overthrow
- 1.6 Provisional government and 1893 U.S. presidential (Blount) investigation
- 1.7 Cleveland's attempts at restoration
- 1.8 1894 Senate (Morgan) investigation
- 1.9 1895 Trial and abdication
- 1.10 Annexation and anti-annexation campaigns
- 1.11 Spanish-American War and Newlands Resolution
- 1.12 Territory of Hawaii
- 1.13 Statehood plebiscite and Admissions Act
- 2 Legal issues
- 3 Complicating factors
- 4 Contemporary legal actions
- 5 Historical legal actions
- 6 U.S. investigations
- 7 U.S. legislation
- 8 See also
- 9 Notes
Ancient history to Kamehameha I
For many centuries, the island chain we now know as "Hawaii" was governed by interrelated chiefdoms based upon the ahupuaʻa system of land management. It was not until the introduction of the then-foreign concept of "nationhood" by Captain James Cook in 1778, which coincided with and facilitated the rise of Kamehameha I, that Hawaii was formally consolidated into a "nation" for recognition by the political, economic and military powers of Europe and North America.
Hawaiian Kingdom: early years
Hawaii was formally "unified" into the "Kingdom of the Sandwich Islands" in 1791, under Kamehameha I. Its first constitution was promulgated in 1840. From 1794 until 1843, The "Sandwich Islands" were officially a protectorate of the British empire; however, by 1829 the Kingdom was referring to itself as Hawaii and Kamehameha III was asserting its place as a "separate and autonomous nation". In 1843, Captain Lord George Paulet illegally seized control of Hawaii without the permission of the British crown, burning all Hawaiian flags and appointing himself and three other British officials acting heads of state for the islands. When news of this affair reached England, the matter was quickly settled. Rear Admiral Richard Darton Thomas sailed to Hawaii, investigated the matter, and restored the Hawaiian Kingdom. Such recognition was formalized in a proclamation by the British and French on November 28, 1843. This was followed by formal recognition of the Kingdom of Hawaii by the United States on July 6, 1844.
Constitutional monarchy period
A constitutional monarchy was essentially the stable form of government in Hawaii from 1843 to 1887. The constitution was revised several times, in 1840, 1852 and 1864. Each revision significantly expanded human rights and democratic participation of the common people, who were by the late 1800s the single most literate population in the world, surpassing the United States and many other world powers by far. Treaties were signed with many other nations, and Kamehameha III and Kamehameha IV both worked actively to secure Hawaii's place as a neutral country, akin to a "Switzerland of the Pacific", to be both respected and protected by the powers of the world. Immigrant workers began to arrive during this period, and most became Kingdom citizens with full rights and voting power. Trade with other nations increased significantly.
In 1887, growing pressure among sugar plantation owners and Protestant reformists on the island forced King Kalākaua to sign a new constitution, commonly referred to as the "Bayonet Constitution" because of the threat of assassination that was reportedly used. This new constitution empowered the predominantly-foreign legislature and disenfranchised the common people, who could not meet the new property qualifications. Under this constitution, Asian laborers were specifically prohibited from voting. Portuguese laborers, however, were allowed to vote if they took an oath to support the Constitution. James Blount later reported that these laborers were driven to the polls by white overseers in large numbers "to balance the native vote".
Liliʻuokalani's ascension and overthrow
When Kalākaua's sister, Liliʻuokalani, ascended as Queen in 1891, signs of discontent were showing amongst the common people. The new Queen immediately embarked on a tour of the islands, traveling by boat, canoe and horseback to speak to communities about what they wanted. Their primary request was for a new constitution that would restore their voting rights. Accordingly, the Queen drafted the 1893 Constitution, which would have given greater power to both the monarch and the common people of Hawaii (as opposed to the legislature, which was elected by wealthy property holders).
Meanwhile, a group of wealthy foreign settlers, who felt that their business and political interests were at stake, began meeting to discuss a possible coup. U.S. Minister John L. Stevens, ambassador to Hawaii, had been communicating extensively with the conspirators and with colleagues in Washington, D.C. Shortly before the coup he sent a message to Washington stating that, "The golden hour is near at hand."
On January 16, 1893, the Queen prepared to promulgate the constitution. Her cabinet, however, feared settler revolt and recommended a delay. The next day, on January 17, ʻIolani Palace was indeed invaded by the settler organization, the "Committee of Safety", backed by a militia group known as the Honolulu Rifles. U.S. Minister Stevens simultaneously landed U.S. Marines from the warship U.S.S. Boston in support of the armed usurpers. In order to avoid a "collision of armed forces", the Queen therefore yielded under protest:
- I Liliʻuokalani, by the Grace of God and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the Constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.
- That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the Provisional Government.
- Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.
Provisional government and 1893 U.S. presidential (Blount) investigation
An all-white provisional government was established, which initially favored annexation, but after U.S. President Grover Cleveland rejected the government as illegitimate and demanded return of the Kingdom, 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, 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. 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
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. 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) 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, particularly once the situation became volatile.
1894 Senate (Morgan) investigation
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 who had speculated on the use of Hawaii (along with the Philippines, Congo, and Cuba) as an alternative site for relocation of Blacks, was sent to challenge Blount's findings. Interviewing primarily Caucasian settlers, befriending coup organizer Lorrin Thurston and emphasizing the strategic value of Hawaii, Morgan's report exonerated the U.S. military of direct responsibility. Though the report was never accepted by the Senate, 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. Stevens also received a silver tea service made of melted Hawaiian Kingdom coins in thanks from the new Provisional Government, 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. 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.
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.
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
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. While this was claimed not to be a legally permissible way to acquire territory under the U.S. Constitution, and while the people of Hawaii continued to protest in both Hawaii and Washington, The United States asserted that it had legally annexed Hawaii. The flag of the United States was raised over Hawaii on August 12, 1898, protected by the United States Navy.
- "the Republic of Hawaii also ceded 1,800,000 acres of crown,government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government" – Apology Resolution
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, the Hawaiian language was punished in schools, and native cultural practitioners were repressed. World War II, the bombing of Pearl Harbor, the internment of Japanese citizens and the Red Scare all contributed to a climate of intense U.S. patriotism and fear in Hawaii. Nonetheless, loyalty to the Hawaiian Kingdom, especially amongst the older generation, continued.
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. By early 1959, it had become known that the United Nations was about to pass Resolution 1514 (1960), which would have made decolonization very likely for Hawaii. The United States quickly proposed a vote between two options: 1) become a State by passing the Admissions Act, or 2) remain a United States Territory.
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||This section contains weasel words: vague phrasing that often accompanies biased or unverifiable information. (July 2014)|
The main issues surrounding the legal status of Hawaii are:
- The role of the United States in the Overthrow of the Hawaiian Kingdom;
- The Queen's protest and unanswered request for intervention;
- The Queen's abdication, including legal issues of duress and applicability;
- The legality of Annexation under U.S. and International Laws;
- Treaties between the United States and Hawaii;
- Hawaii's international standing, including membership in the Family of Nations and treaty relationships with other countries;
- The validity of the Statehood Plebiscite;
- The unilateral removal by the United States of Hawaii from the United Nations list of Non-Self-Governing Territories Eligible for Decolonization without consultation, and the potential reinstatement and application of United Nations General Assembly Resolution 1514 to Hawaii;
- The implications of the Blue Water Thesis and other international decolonization standards;
- The Kingdom lands seized in the Overthrow and subsequently granted in fee to the Territory and State by the United States;
- International Human Rights issues, including provisions of the Genocide Convention;
- Environmental protection issues in general;
- Environmental cleanup issues (particularly military ordnance and contamination);
- International Native Rights issues (e.g. U.N. DRIP);
- Native and Non-Native self-determination; and
Note: these decisions are in the opinion of Hawaii sovereignty activists and not the actual legal community.
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The legal issues regarding Hawaii's international standing are complex. While many scholars and legal experts feel that the case for legal independence is clear, the practical ability to actually assert such independence is difficult. Some complicating factors include:
- The continued presence of the U.S. military in Hawaii;
- The assumed reluctance of the U.S. to give up its claim to Hawaii, legal or not;
- The powerful influence of the U.S. within the United Nations and other international bodies, and the ability of the U.S. to place pressure on these bodies;
- Complex issues regarding population diversity, especially considering that the majority of Hawaii's population is non-native recent (post-1893) immigrants, many of whom hold great political power and influence;
- Complex issues regarding land tenure;
- Complex issues regarding immigration and emigration;
- Complex issues regarding economic basis for self-sufficiency;
- Issues regarding national protection from invasion; and
- The effects of long-term colonization.
Note: these opinions are same as above and are the opinions of Hawaii sovereignty activists only and not the actual legal community.
Contemporary legal actions
Larsen v. Hawaiian Kingdom
||The neutrality of this article is disputed. (July 2014)|
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, 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." 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 conclusionof treaties.
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 conclusionof treaties..
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, 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., 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.,
Historical legal actions
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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.
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.
The 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.
The 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.
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.
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".
- Turpie Resolution May 31, 1894
- Newlands Resolution July 4, 1898
- Organic Act April 30, 1900
- Apology Resolution November 23, 1993
- Maori and Native Hawaiian Education | Umi Perkins – Academia.edu
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- 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...
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- Hawaiian Kingdom Strategic Plan p. 8
- Larsen – Hawaiian Kingdom Arbitration AWARD section 7.4
- "Hawaii et al v Office of Hawaiian Affairs" (PDF). United States Supreme Court. March 31, 2009. Retrieved July 24, 2014.
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- Chapter I