Legal and Political History of the Hawaiian

8/14/2019 Legal and Political History of the Hawaiian

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Legal and PoliticalLegal and PoliticalHistoryHistoryof theof the

Hawaiian KingdomHawaiian Kingdom


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Sovereignty and Equality ofStates under InternationalLaw

Exclusive jurisdiction over a territory and the

permanent population living there

A duty of non-intervention in the area of exclusive

jurisdiction of other States

The binding nature of States arising from

International law and Treaties


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International Recognition

of Hawaiian Sovereignty As a constitutional

monarch in 1842, King

Kamehameha III, inPrivy Council, appointsthree Envoys to securerecognition of Hawaiian

Independence from theUnited States, Franceand Great Britain


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Anglo-French Proclamation,Nov. 28, 1843


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U.S. Recognition on July 6,

1844 U.S. Secretary of

State John C.

Calhoun notified theHawaiian Kingdom

of U.S. recognition

of Hawaiian

Independence


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Austria-Hungary

June 18, 1875, a

Treaty was signed in

London


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Belgium

October 4, 1862, a

Treaty was signed

in Brussels


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Bremen

August 7, 1851, a

Treaty was signed

in Honolulu


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Denmark

October 19,

1846, a Treaty

was signed inHonolulu


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France

October 29,

1857, a third

Treaty wassigned in

Honolulu


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Germany

March 25, 1879,

a Treaty was

signed in Berlin


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Great Britain

July 10, 1851, a

fourth Treaty

was signed inHonolulu


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Hamburg

January 8, 1848,

a Treaty was

signed inHonolulu


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Japan

August 19,

1871, a Treaty

was signed inYedo


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Netherlands

October 16,

1862, a Treaty

was signed inThe Hague


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Portugal

May 5, 1882, a

Treaty was

signed inLisbon


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Russia

June 19, 1869, a

Treaty was

signed in Paris


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Samoa

March 20, 1887,

a Treaty of

PoliticalConfederation

was signed in

Honolulu


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Spain

October

29,1863, a

Treaty wassigned in

London


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Switzerland

July 20, 1864, a

Treaty was

signed in Berne


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Sweden-Norway

July 1, 1852, a

Treaty was

signed inHonolulu


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United States of America

December 20,

1849, a Treaty

was inWashington,

D.C.


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Hawaiian Neutrality

May 16, 1854, the

Hawaiian Kingdom

is declared a neutralState

Similar to

Switzerland in themiddle of the Pacific

Ocean


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Hawaiian Citizenry (1890

Census) Hawaiian subjects 48,107

Aboriginals (pure/part) 40,622

Portuguese 4,117 Chinese and Japanese 1,701

Other White foreigners 1,617

Other nationalities 60

Aliens 41,883 U.S. citizens 1,928


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Distinguishing Hawaiian

from Ethnicity Article 13, Bernice Pauahis Will (1884)

and to devote a portion of each years income

to the support and education of orphans, andothers in indigent circumstances, giving thepreference to Hawaiians of pure or partaboriginal blood

According to Websters Dictionary, aboriginal isfirst to arrive in a region, and indigenous isoriginating in a particular region


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Cession To yield or grant typically by treaty, Merriam-Webster

Dictionary

The territory of a foreign government gained by

the transfer of sovereignty, Legal Encyclopedia

Secession

The act of withdrawing from membership in agroup, Legal Encyclopedia

Secession occurs when persons in a country or state

declare their independence from the ruling government


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Cession of Sovereign

Territory Cession between sovereign States byTreaty, being a bilateral agreement

Sovereignty SovereigntyGov. Gov.

Voluntary Cession

Involuntary Cession


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Examples of Cessions to

the U.S.

1846 British

Treaty

1803 French

Treaty

1819 Spanish Treaty

1848 Mexican Treaty


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1893 United States

Intervention January 16, 1893 U.S.military overthrowsHawaiian government and

establishes puppetgovernment over QueensProtest

February 14, 1893 puppet

government signs treaty ofcession in Washington,D.C., and PresidentHarrison submits the treaty

to the Senate for approval


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U.S. Presidential

Investigation In March 1893 Cleveland withdrawsthe Treaty from the Senate andinvestigates the overthrow

Investigation concluded:

International Law was violated by U.S.Ambassador and U.S. Troops

Provisional Government was neitherde

facto norde jure, but self-proclaimed United States must make all possible

reparation

Restore the Hawaiian KingdomGovernment to the status before the

landing of U.S. troops on January 16, 1893 President Cleveland


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Negotiating Settlement

On November 13, 1893, U.S.Ambassador Albert Willis metwith Queen Lili`uokalani at theU.S. Embassy in Honolulu

He conveyed to the Queen thePresidents sincere regret that,through the unauthorizedintervention of the United States,she had been obliged to surrenderher sovereignty, and his hope that,with her consent and cooperation,the wrong done to her and to her

people might be redressedAlbert S. Willis


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Negotiating Settlement Willis stated that the President concluded that the members of

the provisional government and their supporters, though notentitled to extreme sympathy, have been led to their presentpredicament of revolt against the Government by theindefensible encouragement and assistance of our diplomatic

representative

The Queen was then asked, should you be restored to thethrone, would you grant full amnesty as to life and property toall those persons who have been or who are now in theProvisional Government, or who have been instrumental in theoverthrow of your government?

Amnesty is to grant an official pardon to an offender from thelegal consequences of an offense or conviction


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Dispute Settled In the first meeting the Queen refused

to grant amnesty, but after three

additional meetings with the U.S.

Ambassador she agreed and issued a

declaration on December 18, 1893

1893 Cleveland-Lili`uokalani

Agreement of Restoration is a treaty

under international law

U.S. Senate ratification not requiredfor Executive Agreements -U.S. v.

Belmont, 301 U.S. 324 (1937)


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Civil Unrest Ensues

U.S. Congress prevents President Cleveland fromrestoring the Government

Queen Lili`uokalani and Hawaiian nationals reliedon Clevelands commitment to their detriment

Provisional Government gains strength by hiringmercenaries and renames themselves the Republicof Hawai`i They remain fugitives of Hawaiian law


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Second Attempt to Annexby Treaty of Cession, June

16, 1897 Article I (Dominium) -

The Republic of Hawaii hereby cedes absolutely and withoutreserve to the United States of America all rights of sovereignty of

whatsoever kind in and over the Hawaiian Islands and theirdependencies

Article II (Public Domain) - The Republic of Hawaii also cedes and hereby transfers to the

United States the absolute fee and ownership of all public,

government or crown lands, public buildings, or edifices, ports,harbors, military equipments, and all other public property of everykind and description belonging to the Government of the HawaiianIslands, together with every right and appurtenance thereuntoappertaining


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Queen Protests Second

Annexation Attempt June 18, 1897, Queen Lili`uokalani files

protest with the U.S. State Dept.

I declare such a treaty to be an act of wrong towardthe native and part-native people of Hawai`i, aninvasion of the rights of the ruling chiefs, in violationof international rights both toward my people andtoward friendly nations with whom they have made

treaties, the perpetuation of the fraud whereby theconstitutional government was overthrown, and,finally, an act of gross injustice to me.


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McKinley Determined to

Annex In spite of these

protests, PresidentMcKinley intends tosubmit the Treaty ofAnnexation to theUnited States Senate,which would convene

in December of 1897


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Signature PetitionProtesting Annexation

Attempt September of 1897,

the Men andWomen's Hawaiian

Patriotic Leagueinitiated 21,000signature petition

protesting the

annexation


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1897 Treaty of

Annexation Dead By March 1898, these

protests succeeded inpreventing the so-

called treaty ofcession from beingratified by the Senate

Two failed attempts toacquire the HawaiianIslands by a Treaty ofCession


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1898 Spanish-American

War April 21, 1898, the

United States ofAmerica declares

war against theKingdom of Spainand fights theSpanish in bothCaribbean and thePacific Oceans

The Battle of Manila Bay, May 1, 1898


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Congress to Unilaterally

Annex Hawai`i May 4, 1898,

Congressman FrancisNewlands (D-Nevada)

submits a resolution ofannexation to theHouseCommittee on Foreign

Affairs

A resolution is not atreaty of cession


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Congress to Unilaterally

Annex Hawai`i June 21, 1898, the New York

Times reported comments madeby Senator Stephen White (D-California) on the Senate Floor

The resolution declared there hadbeen a cession which Congress wasto accept, ratify, and confirm. Hedemanded to know what cessionhad been made, and what lawyer in

the Senate would state that therehad been a cession. He maintainedthere had been no cession, as therecould not have been without theconcurrence of both parties


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Limitation of U.S.

Congressional LawCanadian Border

Atla

nticB

order

CubanBor

der

MexicanBorder

PacificBorder


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Hawai`i Occupied during

Spanish-American War In order to secure

the islands as aU.S. military

outpost, the Senateapproves theresolution and issigned into U.S.

Law by PresidentMcKinley on July7, 1898

Camp McKinley, August 1898

Maui Newspaper Oct 20


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Maui Newspaper, Oct. 20,1900

Propaganda of


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Propaganda ofAnnexation

P d f


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Propaganda ofAnnexation

McKinley Statue frontingMcKinley Statue fronting

McKinley High School inMcKinley High School in

Honolulu was dedicated onHonolulu was dedicated on

February 23, 1911 by SanfordFebruary 23, 1911 by Sanford

DoleDole

As a former Judge, he knew theAs a former Judge, he knew the

difference between a jointdifference between a joint

resolution and a treatyresolution and a treaty

Sanford Dole was not pardonedSanford Dole was not pardoned

by the Queen and was a fugitiveby the Queen and was a fugitive

of Hawaiian lawof Hawaiian law

J di i l A k l d


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Judicial Acknowledgementof Hawaiian State

Sovereignty 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. Award, Larsen v. Hawaiian Kingdom, Permanent Court of Arbitration (2001).

The Hawaiian Kingdom was a co-equal sovereign alongside

the United States. Kahawaiola`a v. Norton, 9th Circuit Court of Appeals (2004).

In 1866, the Hawaiian Islands were still a sovereign

kingdom. Doe v. Kamehameha,9th Circuit Court of Appeals (2005).

N ti l & I t ti l


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National & InternationalLaws regarding the U.S.

and Hawai`i1898 Annexation Resolution

1900 Territorial Act

1921 Hawaiian Homes Commission

1959 Hawai`i Statehood Act

1978 Office of Hawaiian Affairs

1993 Apology Resolution

2009 Akaka Bill

United States of America

(Sovereign & Independent State)

1840 Constitution

1845 Organic Acts

1850 Criminal Code

1852 Constitution

1859 Civil Code

1864 Constitution

1884 Compiled Laws

International Law

Hawaiian Kingdom

(Sovereign & Independent State)


Agreement of Restoration of

the Hawaiian Kingdom Government


Agreement of Restoration of

the Hawaiian Kingdom Government


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Sovereignty &

Occupation Occupation is regulated by the Hague and Geneva

Conventions, and US Army Field Manuel 27-10

Being an incident of war, military occupation confersupon the invading force the means of exercisingcontrol for the period of occupation. It does nottransfer the sovereignty to the occupant, but simply theauthority or power to exercise some of the rights of

sovereignty. 358, FM 27-10


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Function of the Law of

Occupation If no transfer of sovereignty exists, the situation is

governed by the International Law of Occupation

Occupying State must administer the laws of theOccupied State

Hawaiian Kingdom Constitutional law

Hawaiian Penal Code

Hawaiian Civil Code

Hawaiian Case law


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Effects of an Illegal

Occupation Legal Consequences for States of the ContinuedPresence of South Africa in Namibia, Advisory Opinion,International Court of Justice, 1971

All acts done on behalf of Namibia by South Africa withouttitle to Namibia is invalid and illegal except for registration of

births, marriages, and deaths

Legal Effects ofPostliminium

Public lands illegally sold by the Occupier can be reclaimed bythe returning Government from purchasers withoutcompensation

Private lands illegally sold by the Occupier can be reclaimed byPrivate persons from purchasers without compensation

Th f H ii


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Theory of HawaiianSovereignty

& Governance

SovereigntyHawai`i (1843)

Hawaiian

Kingdom

Government

Illegally

Overthrown

1893

Government

Restored

De facto

1996

Larsen v Hawaiian Kingdom


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Larsen v. Hawaiian Kingdom,1999-2001Permanent Court of Arbitration, TheHague

H ii C l i t fil d


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Hawaiian Complaint filedwith U.N. Security

Council, July 5, 2001

Security Council addresses violations of international law by andbetween Sovereign States

Hawaiian Complaint is still pending and will be amended to initiateproceedings to compel the U.S. to abide by international law


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Education andExposure

After returning from theNetherlands, I was invited by

Major General Dubik,

Commander of the 25th

Infantry Division, to presentthe Occupation of the

Hawaiian Kingdom to the

Officers Corps at the Officers

Club

After the presentation, Major

General Dubik asked How do

I foresee the transition back to

the Kingdom?

d i d


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My response was to enroll as a graduate student in PoliticalScience at the University of Hawai`i at Manoa to beginresearch and provide for a transition in accordance withinternational law M.A. Degree (2004), specializing in International Relations

Ph.D. Degree (2008), specializing in Public Law

Doctoral Dissertation titled American Occupation of the HawaiianKingdom: Beginning the Transition from Occupied to RestoredState

February 25, 2009, I gave a brief to the U.S. Armys StaffJudge Advocate, Colonel Herring, and his officer staff at theCourt House, Wheeler, AAF, on the transition back to theKingdom

d i d


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March 7, 2009, a protest andnotice of continued violationsof international law wassubmitted to Admiral Keating,

Commander of the PacificCommand (PACOM)

Admiral Keating is the highestranking U.S. government

official in the Hawaiian Islandsand is responsible forcomplying with the Hague andGeneva Conventions


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Ed i d


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Education andExposure (2009)


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U.N. Report on the Laws of War (1999)

In so far as prolonged occupations are to be allowed tooccur at all, the best that can be said is that the basic

principles in the Regulations on the Laws and Customs ofWar on Land are sufficiently elastic to allow for a degree of

evolution within the framework of an occupation regimewhich must be regarded as temporary

Accommodation of change in the case of a prolonged

occupation must be within the framework of the core

principles laid down in the [Hague and GenevaConventions], namely that the occupying power may not

exploit the occupied territories for the benefit of its own

population


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Proposed Transition

Commander of U.S. Pacific Command (PACOM)responsible for establishing a military government

pursuant to Army Regulations and Laws of Occupation

Military Government exercises legislative authority and

proclaims that all laws that have been illegally imposedin the Hawaiian Kingdom since December 18, 1893 tothe present shall be the provisional laws of the occupier

Provisional laws must be consistent with HawaiianKingdom laws and the laws of occupation

Disband all Legislative Bodies at the State and Countylevels

Legislative authority rests solely with Commander ofthe military government


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For Further

Information: Download my doctoral dissertation titled American Occupationof the Hawaiian Kingdom: Beginning the Transition fromOccupied to Restored State

http://www.hawaiiankingdom.org

Download my article titled Establishing an acting Regency http://www.hawaiiankingdom.org

Download my law journal article titled A Slippery PathTowards Hawaiian Indigeneity

http://www2.hawaii.edu/~anu/publications.html

Information on Hawaiian Kingdom Laws:

http://www.hawaiiankingdom.org

Documents

Legal and Political History of the Hawaiian