Legal status of Hawaii

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The legal status of Hawaii—as opposed to its political status—is a settled legal matter but there has been scholarly and legal debate. While Hawaii is internationally recognized as a state of the United States of America while also being broadly accepted as such in mainstream understanding, there have been essays written denying the legality of this status. The argument is that Hawaii is an independent nation under military occupation. The legality of control of Hawaii by the United States has also been raised in the losing side in cases in the U.S. Supreme Court,[1] and in U.S. District Court.[2]

Background[edit]

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, 1893.[3]

James Blount

1893 U.S. presidential (Blount) investigation[edit]

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.[4] 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,[5] 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.[6] 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.

Grover Cleveland

Cleveland's attempts at restoration[edit]

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. Willis reported to president Cleveland 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.[7] 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 restore the Queen without risking a fiasco, recognized the Republic.[8]

Cleveland ended his support for the Queen. His own political position was 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)[9] 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,[10] particularly once the situation became volatile.

John Morgan

1894 Senate (Morgan) investigation[edit]

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[11] who had speculated on the use of Hawaii (along with the Philippines, Congo, and Cuba) as an alternative site for relocation of Blacks,[12] was sent to challenge Blount's findings. Interviewing primarily Caucasian settlers,[13] befriending coup organizer Lorrin Thurston and emphasizing the strategic value of Hawaii, Morgan's report exonerated the U.S. military of direct responsibility.[14][15] Though the report was never accepted by the Senate,[16] 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.[17] Stevens also received a silver tea service made of melted Hawaiian Kingdom coins in thanks from the new Provisional Government,[18] which is still in curation by his descendants.

1895 trial and abdication[edit]

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.[19] 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[edit]

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.[20]

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[edit]

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.

As a result of the unilateral assertion by the United States that it annexed Hawaii, coupled with the continued presence of United States military forces in the territory of what had been known as a neutral Hawaiian Kingdom up until the landing of armed US marines on January 17, 1893, The War Report: Armed Conflict in 2014 (2015), reported (p. 24), "Other belligerent occupations that have been alleged include the occupation by the United Kingdom of the Falkland Islands/Malvinas (Argentina claims this as sovereign territory), of Tibet by China, and of the State of Hawaii by the United States. The War Report makes no determination as to whether belligerent occupation is occurring in these cases."[21] The definition of a belligerent occupation is explained in the Hague Convention of 1907, "Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State":[22]

Art. 42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

Art. 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

In 1949, the laws relative to belligerent occupation were amended further in the Fourth Geneva Convention, Section III: Occupied Territories, Article 6:

"The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.

In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143."

Territory of Hawaii[edit]

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,[23] and native cultural practitioners were repressed.[24][25]

Statehood plebiscite and Admissions Act[edit]

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

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.[26]

Permanent Court of Arbitration, the Hague, Netherlands[edit]

The Permanent Court of Arbitration on May 15, 2014 registered an Arbital Award with regards to the matter of Lance Larsen, a Hawaiian Kingdom national, versus the Hawaiian Kingdom[27] government (Case number 1999-01),[28] with the Hawaiian Kingdom registered as the respondent. The case description is as follows: "Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.

In determining whether to accept or decline to exercise jurisdiction, the Tribunal considered the questions of whether there was a legal dispute between the parties to the proceeding, and whether the tribunal could make a decision regarding that dispute, if the very subject matter of the decision would be the rights or obligations of a State not party to the proceedings.

The Tribunal underlined the many points of agreement between the parties, particularly with respect to the propositions that Hawaii was never lawfully incorporated into the United States, and that it continued to exist as a matter of international law. The Tribunal noted that if there existed a dispute, it concerned whether the respondent has fulfilled what both parties maintain is its duty to protect the Claimant, not in the abstract but against the acts of the United States of America as the occupant of the Hawaiian islands. Moreover, the United States’ actions would not give rise to a duty of protection in international law unless they were themselves unlawful in international law. The Tribunal concluded that it could not determine whether the Respondent has failed to discharge its obligations towards the Claimant without ruling on the legality of the acts of the United States of America – something the Tribunal was precluded from doing as the United States was not party to the case."

On January 19, 2017, the Permanent Court of Arbitration initiated a fact finding commission to investigate 1) the function and role of the Hawaiian Kingdom government, and 2) the duties and obligations of the Kingdom government to its national, Lance Larsen.[29]

Contemporary legal actions[edit]

Hawaii v. Office of Hawaiian Affairs, (2009)[edit]

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,[30] 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.,[30] 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.[30]

Historical legal actions[edit]

International recognition of the Republic of Hawaii[edit]

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.[31]

De Lima v. Bidwell[edit]

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."[citation needed]

Hawaii v. Mankichi[edit]

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."[citation needed]

Liliuokalani v. The United States[edit]

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.[32]

U.S. investigations[edit]

The Blount Report[edit]

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.[33]

The Morgan Report[edit]

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.[34]

Native Hawaiians Study Commission report[edit]

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.[35]

United States Commission on Civil Rights report[edit]

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".[36]

U.S. legislation[edit]

See also[edit]

Notes[edit]

  1. ^ Supreme Court hears “ceded” lands case | Statehood Hawaii
  2. ^ Hawaiian Kingdom – David Keanu Sai v. Barack Obama, et al
  3. ^ Ponterotto, Joseph G.; Casas, J. Manuel; Suzuki, Lisa A.; Alexander, Charlene M., eds. (24 August 2009). Handbook of Multicultural Counseling. SAGE Publications. pp. 269–271. ISBN 978-1-4833-1713-7. 
  4. ^ Michelle Ann Abate (28 June 2008). Tomboys: A Literary and Cultural History. Temple University Press. pp. 134–135. ISBN 978-1-59213-724-4. 
  5. ^ 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. 
  6. ^ JH Blount — US Congress, House. Hawaiian Islands, Exec. Doc, 1893
  7. ^ Proto, Neil Thomas. The rights of my people: Liliuokalani's enduring battle with the United States, 1893–1917. Algora Publishing, 2009
  8. ^ Nick Cleaver (2014). Grover Cleveland's New Foreign Policy: Arbitration, Neutrality, and the Dawn of American Empire. Palgrave Macmillan. pp. 46–47. 
  9. ^ Brodsky, Alan. Grover Cleveland: A Study in Character, (2000). ISBN 0-312-26883-1
  10. ^ Nevins, Allan. Grover Cleveland: A Study in Courage (1932) Pulitzer Prize-winning biography. ASIN B000PUX6KQ.
  11. ^ Encyclopedia of Alabama: Ku Klux Klan in Alabama during the Reconstruction Era
  12. ^ Proto, p.84
  13. ^ Transcribed Morgan Report – TheMorganReport
  14. ^ The Morgan Report: Summary and Conclusions of the Senate investigation into the Hawaii Matter
  15. ^ Native Hawaiians Study Commission Conclusions and Recommendations June 23, 1983
  16. ^ Proto,Neil Thomas. The rights of my people: Liliuokalani's enduring battle with the United States, 1893–1917. Algora Publishing, 2009, p.89
  17. ^ 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...
  18. ^ Kents Hill School Notables
  19. ^ Proto, p.90
  20. ^ Anti-annexation petitions – Page 1
  21. ^ Bellal, A. (editor). (2015) The war report: Armed conflict in 2014. United Kingdom: Oxford University Press.
  22. ^ Laws and Customs of War on Land" (Hague IV); October 18, 1907: "Section III Military Authority over the territory of the hostile State source The Avalon Project at the Yale Law School
  23. ^ Noenoe Silva, "Aloha Betrayed: Native Hawaiian Resistance to American Colonialism." Durham (North Carolina) and London: Duke University Press, 2004. ISBN 0-8223-3349-X
  24. ^ Trask, Haunani-Kay. "The Struggle For Hawaiian Sovereignty — Introduction". 
  25. ^ Kekuni, Blaisdell. "Historical and Philosophical Aspects of Lapa'au Traditional Kanaka Maoli Healing Practices". In Motion Magazine. Retrieved December 21, 2012. 
  26. ^ Smith, Keri E. Lyall. "The States and Indigenous Movements." Routledge. November 30, 2006. P.56
  27. ^ Kuykendall, R. S. (1938). The Hawaiian Kingdom: Foundation and transformation. Vol. 1. Honolulu: University of Hawai‘i Press; Kuykendall, R. S. (1953). The Hawaiian Kingdom: Twenty critical years. Vol. 2. Honolulu: University of Hawai‘i Press; Kuykendall, R. S. (1938). The Hawaiian Kingdom: The Kalakaua dynasty. Vol. 3. Honolulu: University of Hawai‘i Press; Thrum's Hawaiian annual. ([1941?]-1947). Honolulu: Star-Bulletin Press.
  28. ^ Permanent Court of Arbitration PCA Case Repository
  29. ^ SPECIAL AGREEMENT The Government of the Hawaiian Kingdom, by its Acting Council of Regency, and Lance Paul Larsen, a Hawaiian subject... [1]
  30. ^ a b c "Hawaii et al v Office of Hawaiian Affairs" (PDF). United States Supreme Court. March 31, 2009. Retrieved July 24, 2014. 
  31. ^ "Recognition of the Republic of Hawaii «  The Mystery of Hawaiian History". Retrieved 2014-07-26. 
  32. ^ Wikisource:Liliuokalani v. The United States
  33. ^ "Blount Report – Page 1". Retrieved 2014-07-26. 
  34. ^ "TheMorganReport". Retrieved 2014-07-26. 
  35. ^ 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...
  36. ^ http://www.usccr.gov/pubs/060531NatHawBriefReport.pdf
  37. ^ UH Collection of Congressional Debate regarding the Organic Act of 1900
  38. ^ Chapter I