Legal status of Hawaii
Part of a series on Hawaii Hawaiian sovereignty movement
2008 Coup d'état
Kaua Kuloko 1895
The legal status of Hawaii is the standing of Hawaii as a political entity relative to the United States of America. Locally, nationally and internationally, Hawaii is accepted as 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 by native rights groups.
- 1 History
- 2 Parallel overview
- 3 Sovereignty organizations
- 4 Contemporary legal actions
- 5 Historical legal actions
- 6 U.S. investigations
- 7 U.S. legislation
- 8 See also
- 9 Notes
In 1887, growing pressure among Protestant reformists on the island forced King Kalākaua to sign a new constitution, turning the absolute monarchy into a constitutional monarchy and empowering the legislature. When his successor, Liliʻuokalani, tried to disenfranchise Americans and Europeans and restore the old monarchy in a new 1893 Constitution, she was promptly overthrown. Modern-day sovereignty activists and 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. The provisional government initially favored annexation, but after Grover Cleveland rejected it, the Republic of Hawaii was declared instead. Annexation was negotiated in 1898 under the McKinley administration, with full statehood ratified in 1959. Sovereignty activists and some scholars feel that these actions were illegal.
An 1894 U.S. Senate inquiry into the overthrow formally exonerated the U.S. military of direct responsibility. On the other hand, it has also been asserted that the presence of U.S. marines during the events of 1893 "made it impossible for the monarchy to protect itself", and so for some, this casts doubt on the legitimacy of U.S. sovereignty in Hawaii. The Newlands Resolution of 1898 and the Hawaiian 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." 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, many countries which had had diplomatic relations with the Kingdom responded with the extension of recognition to the Provisional Government and subsequently the Republic of Hawaii. Some also simultaneously extended their support to the overthrown queen; 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. Sovereignty activists have disputed the legality of the Statehood plebiscite; however, as a matter of international law, 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. Hawaiian sovereignty proponents and some scholars believe that Hawaiʻi's history as an independent nation, the token presence of the U.S. military, 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.
Political status of Hawai‘i
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 January 17, 1893.
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
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 | Legal status of Hawaii Edit this box
- Hawaiian Kingdom Government
- Nalayne Mahealani Asing heads the organization, which emphasizes reinstatement of the Kingdom. The organization is based on the island of O'ahu. Asing's Hawaiian Kingdom Government claims legitimacy because of their use of "the Apostille process", and assert that because they have a document notarized by Catherine Ching, Secretary of State of the State of Hawaii, they are the legitimate successors of the Kingdom of Hawaii.
Asing's stated goals for Hawaii are:
- To remove all laws, policies, rules and regulations that relate, reflect or ressemble [sic] an occupying power's
- To create information centers on every island and online to assist the people of Hawaii with their needs
- To provide a residential home (lease free) for every qualifying Kingdom Heir, and a total benefit package for every qualifying resident of Hawaii.
- Asing recently lost an appeal regarding a divorce judgment under the government and laws of the State of Hawaii.
- The Hawaiian Kingdom - Dr. David Keanu Sai
- In December 2008, David Keanu Sai received his Ph.D. in Political Science from the University of Hawai'i at Manoa.
- Claims to be the Acting Minister of the Interior of the Hawaiian Kingdom as a result of the Doctrine of Necessity.
- Has a large group of supporters and has compiled a complex political and legal argument for the restoration process.
- Convicted of felony attempted theft of land in 1999. His appeal was denied July 20, 2004.
- Dr. David Keanu Sai reportedly has two forthcoming books titled, "American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State" and "Land Titles in the Hawaiian Islands: From Origins to the Present." These two books will apparently be published by the University of Hawai'i Press. The former was apparently Dr. Sai's Doctoral Dissertation.
- While a graduate-student at the University of Hawai'i at Manoa, Dr. Sai co-founded the Hawaiian Society of Law and Politics. The Hawaiian Society of Law and Politics is an academic club at the University of Hawai'i and a registered independent organization, like several other student organizations, under the "Co-curricular Activities, Programs, and Services department. The organization's membership is described as multi-disciplinary with members from different academic graduate disciplines at the university.
- Kingdom of Hawai'i - Edmund Keali'i Silva
- Claims to be King of Hawaii based on ancestry. Has published a declaration of independence on the web.
- Nation of Hawai'i
- Claims to be King of Hawaii based on ancestry, election by group of 200 people on March 6, 1994, and a September 8, 1994 letter from President Bill Clinton allegedly addressing him as "Head of State Hawaii".
- 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.
- John Kekoa Lake (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
- James Kimo Akahi
- Claims to be King of Hawaii based on ancestry. Supports a return to the 1840 constitution of the Kingdom of Hawaii. 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.
Contemporary legal actions
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. 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.
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..
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
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.'
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 the title to all land transferred to it from the federal government in 1959.
Historical legal actions
- The International Recognition of the Republic of Hawaii 1898
Documents 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, 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'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 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".
- Turpie Resolution May 31, 1894
- Newlands Resolution July 4, 1898
- Organic Act April 30, 1900
- Apology Resolution November 23, 1993
- ^ The Morgan Report: Summary and Conclusions of the Senate investigation into the Hawaii Matter
- ^ Native Hawaiians Study Commission Conclusions and Recommendations June 23, 1983
- ^ Russ, The Hawaiian Revolution, p350
- ^ Russ, The Hawaiian Revolution, p 351.
- ^ http://www.realinstitutoelcano.org/documentos/117.asp
- ^ Morgan Report p1103-1111 Letters of recognition from all nations with consular presence in Hawaii
- ^ Andrade Jr., Ernest (1996). Unconquerable Rebel: Robert W. Wilcox and Hawaiian Politics, 1880-1903. University Press of Colorado. pp. p147. ISBN 0-87081-417-6.
- ^ Kizner Interview regarding his book Overthrow: America's Century of Regime Change from Hawaii to Iraq
- ^ 
- ^ Enriquez, J. The Untied States of America: Polarization, Fracturing, and Our Future. Crown Publishing, ISBN 0307237524
- ^ Mathson, S and Lorenzen, M.G. We Won't Be Fooled Again: Teaching Critical Thinking via Evaluation of Hoax and Historical Revisionist Websites in a Library Credit Course. College and Undergraduate Libraries, 15 (1/2): 211-230.
- ^ The Morgan Report: A Senate investigation into the Hawaii matter published February 26, 1894
- ^ Student Project at Brown University regarding the Hawaiian Sovereignty Movement
- ^ Instances of Use of United States Forces Abroad, 1798 - 1993 by Ellen C. Collier
- ^ a b higovt.org press release
- ^ higovt.org Head of State page
- ^ www.HawaiianKingdom.org
- ^ www2.hawaii.edu/~anu
- ^ Works in Progress
- ^ Hawaiian Society of Law and Politics - official website
- ^ Hawaiian Society of Law and Politics Membership List
- ^ kingdomofhawaii.org declaration of independence
- ^ Copies of the alleged letter from Bill Clinton to Bumpy Kanahele dated September 8, 1994 have not been made publicly available.
- ^ web archive of pro tem Executive branch for reinstated.org
- ^ Election results, including turnout figures, for reinstated.org polls have not been made public.
- ^ Kingdom of Hawaii Constitution of 1840
- ^ State V. Akahi (Summary Disposition Order)
- ^ PCA Website
- ^ Hawaiian Kingdom Strategic Plan p. 8
- ^ Larsen - Hawaiian Kingdom Arbitration AWARD section 7.4
- ^ Fraudulent Hague Arbitration: by Ken Conklin
- ^ Recognition of the Republic of Hawaii
- ^ UH Collection of Congressional Debate regarding the Organic Act of 1900
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