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Legal status of Hawaii

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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 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;[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.

Contents

  • Background 1
    • 1893 U.S. presidential (Blount) investigation 1.1
    • Cleveland's attempts at restoration 1.2
    • 1894 Senate (Morgan) investigation 1.3
    • 1895 Trial and abdication 1.4
    • Annexation and anti-annexation campaigns 1.5
    • Spanish-American War and Newlands Resolution 1.6
    • Territory of Hawaii 1.7
    • Statehood plebiscite and Admissions Act 1.8
  • Legal issues 2
  • Complicating factors 3
  • Contemporary legal actions 4
    • Larsen v. Hawaiian Kingdom 4.1
    • Petitions to the International Court of Justice 4.2
    • Hawaii v. Office of Hawaiian Affairs, (2009) 4.3
  • Historical legal actions 5
    • International recognition of the Republic of Hawaii 5.1
    • De Lima v. Bidwell 5.2
    • Hawaii v. Mankichi 5.3
    • Liliuokalani v. The United States 5.4
  • U.S. investigations 6
    • The Blount Report 6.1
    • The Morgan Report 6.2
    • Native Hawaiians Study Commission report 6.3
    • United States Commission on Civil Rights report 6.4
  • U.S. legislation 7
  • See also 8
  • Notes 9

Background

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 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
  1. ^ Maori and Native Hawaiian Education | Umi Perkins – Academia.edu
  2. ^ Hawai'i and the United Nations | Cultural Survival
  3. ^ a b Supreme Court hears “ceded” lands case | Statehood Hawaii
  4. ^ Hawaiian Kingdom – David Keanu Sai v. Barack Obama, et al
  5. ^
  6. ^
  7. ^
  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. ^
  24. ^
  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. ^ a b c
  30. ^
  31. ^ Wikisource:Liliuokalani v. The United States
  32. ^
  33. ^
  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

Notes

See also

U.S. legislation

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]

United States Commission on Civil Rights 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]

Native Hawaiians Study Commission 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 [33]

The Morgan 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 Blount Report

U.S. investigations

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]

Liliuokalani v. The United States

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."

Hawaii v. Mankichi

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."

De Lima v. Bidwell

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]

International recognition of the Republic of Hawaii

Historical legal actions

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]

Hawaii v. Office of Hawaiian Affairs, (2009)

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.'

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:

Petitions to the International Court of Justice

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.

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]

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:

...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]

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:

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.

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.

Larsen v. Hawaiian Kingdom

Contemporary legal actions

Note: these opinions are same as above and are the opinions of Hawaii sovereignty activists only and not the actual legal community.

  • 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.

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:

Complicating factors

Note: these decisions are in the opinion of Hawaii sovereignty activists and not the actual legal community.

  • 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
  • Enforcement.

The main issues surrounding the legal status of Hawaii are:

Legal issues

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. 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. 93% of voters supported statehood in the statehood vote.[25]

Statehood plebiscite and Admissions Act

[24][23] were repressed.cultural practitioners and native [22] The Territory of Hawaii officially lasted from April 30, 1900, when President McKinley signed the Hawaii

Territory of Hawaii

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.

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

Spanish-American War and Newlands Resolution

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.

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]
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. William McKinley president expansionistIn 1896,
Anti-Annexation petitions, signed by the majority of adults in Hawaii, 1897
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.

Annexation and anti-annexation campaigns

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.

1895 Trial and abdication

which is still in curation by his descendants. [19] Stevens also received a silver tea service made of melted Hawaiian Kingdom coins in thanks from the new Provisional Government,[18]
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