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Legal and Political

History
of the
Hawaiian Kingdom
Sovereignty and Equality of
States under International
Law
• 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
International Recognition
of Hawaiian Sovereignty
• As a constitutional
monarch in 1842, King
Kamehameha III, in
Privy Council, appoints
three Envoys to secure
recognition of Hawaiian
Independence from the
United States, France
and Great Britain
Anglo-French Proclamation,
Nov. 28, 1843
U.S. Recognition on July 6,
1844
• U.S. Secretary of
State John C.
Calhoun notified the
Hawaiian Kingdom
of U.S. recognition
of Hawaiian
Independence
Austria-Hungary
• June 18, 1875, a
Treaty was signed in
London
Belgium
• October 4, 1862, a
Treaty was signed
in Brussels
Bremen
• August 7, 1851, a
Treaty was signed
in Honolulu
Denmark
• October 19,
1846, a Treaty
was signed in
Honolulu
France
• October 29,
1857, a third
Treaty was
signed in
Honolulu
Germany
• March 25, 1879,
a Treaty was
signed in Berlin
Great Britain
• July 10, 1851, a
fourth Treaty
was signed in
Honolulu
Hamburg
• January 8, 1848,
a Treaty was
signed in
Honolulu
Italy
• July 22, 1863, a
Treaty was
signed in Paris
Japan
• August 19,
1871, a Treaty
was signed in
Yedo
Netherlands
• October 16,
1862, a Treaty
was signed in
The Hague
Portugal
• May 5, 1882, a
Treaty was
signed in
Lisbon
Russia
• June 19, 1869, a
Treaty was
signed in Paris
Samoa
• March 20, 1887,
a Treaty of
Political
Confederation
was signed in
Honolulu
Spain
• October
29,1863, a
Treaty was
signed in
London
Switzerland
• July 20, 1864, a
Treaty was
signed in Berne
Sweden-Norway
• July 1, 1852, a
Treaty was
signed in
Honolulu
United States of America
• December 20,
1849, a Treaty
was in
Washington,
D.C.
Hawaiian Neutrality
• May 16, 1854, the
Hawaiian Kingdom
is declared a neutral
State
• Similar to
Switzerland in the
middle of the Pacific
Ocean
Hawaiian Diplomatic
Relations
• By 1893 Hawai`i manned over 90 Embassies and
Consulates throughout the world
– Hawaiian Embassy in Washington, D.C., and Consul-
Generals in the cities of New York and San Francisco

• Since January 1, 1881, Hawai`i also became a member


of the Universal Postal Union
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
Distinguishing Hawaiian
from Ethnicity
• Article 13, Bernice Pauahi’s Will (1884)
– and to devote a portion of each years income
to the support and education of orphans, and
others in indigent circumstances, giving the
preference to Hawaiians of pure or part
aboriginal blood
• According to Webster’s Dictionary, aboriginal is
first to arrive in a region, and indigenous is
originating in a particular region
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 a
group, Legal Encyclopedia
– Secession occurs when persons in a country or state
declare their independence from the ruling government
Cession of Sovereign
Territory
• Cession between sovereign States by
Treaty, being a bilateral agreement
Voluntary Cession
Sovereignty Gov. Gov. Sovereignty

Involuntary Cession
Examples of Cessions to
the U.S.

1846 British
Treaty

1803 French
Treaty

1848 Mexican Treaty


1819 Spanish Treaty
1893 United States
Intervention
• January 16, 1893 U.S.
military overthrows
Hawaiian government and
establishes puppet
government over Queen’s
Protest
• February 14, 1893 puppet
government signs “treaty of
cession” in Washington,
D.C., and President
Harrison submits the treaty
to the Senate for approval
U.S. Presidential
Investigation
• In March 1893 Cleveland withdraws
the Treaty from the Senate and
investigates the overthrow
• Investigation concluded:
– International Law was violated by U.S.
Ambassador and U.S. Troops
– Provisional Government was neither de
facto nor de jure, but self-proclaimed
– United States must make all possible
reparation
– Restore the Hawaiian Kingdom
Government to the status before the
landing of U.S. troops on January 16, 1893 President Cleveland
Negotiating Settlement
• On November 13, 1893, U.S.
Ambassador Albert Willis met
with Queen Lili`uokalani at the
U.S. Embassy in Honolulu
– He conveyed to the Queen the
President’s sincere regret that,
through the unauthorized
intervention of the United States,
she had been obliged to surrender
her sovereignty, and his hope that,
with her consent and cooperation,
the wrong done to her and to her
people might be redressed
Albert S. Willis
Negotiating Settlement
• Willis stated that the President concluded that the members of
the provisional government and their supporters, though not
entitled to extreme sympathy, have been led to their present
predicament of revolt against the Government by the
indefensible encouragement and assistance of our diplomatic
representative
• The Queen was then asked, should you be restored to the
throne, would you grant full amnesty as to life and property to
all those persons who have been or who are now in the
Provisional Government, or who have been instrumental in the
overthrow of your government?
• Amnesty is to grant an official pardon to an offender from the
legal consequences of an offense or conviction
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 required
for “Executive Agreements” -U.S. v.
Belmont, 301 U.S. 324 (1937)
What Does Settlement
Mean?
• This is profound because “settlement” means there is
“no dispute” over the 1893 Overthrow
• It also means that there is no need to go before an
International Court as previously thought, but rather it
is a matter of enforcement by the United Nations
Security Council
• What will take place from this point on is the willful
“noncompliance” by the U.S. to the “settlement”
Civil Unrest Ensues
• U.S. Congress prevents President Cleveland from
restoring the Government
• Queen Lili`uokalani and Hawaiian nationals relied
on Cleveland’s commitment to their detriment
• Provisional Government gains strength by hiring
mercenaries and renames themselves the “Republic
of Hawai`i”
– They remain fugitives of Hawaiian law
Second Attempt to Annex
by Treaty of Cession, June
16, 1897
• Article I (Dominium) -
– The Republic of Hawaii hereby cedes absolutely and without
reserve to the United States of America all rights of sovereignty of
whatsoever kind in and over the Hawaiian Islands and their
dependencies
• 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 every
kind and description belonging to the Government of the Hawaiian
Islands, together with every right and appurtenance thereunto
appertaining
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 toward
the native and part-native people of Hawai`i, an
invasion of the rights of the ruling chiefs, in violation
of international rights both toward my people and
toward friendly nations with whom they have made
treaties, the perpetuation of the fraud whereby the
constitutional government was overthrown, and,
finally, an act of gross injustice to me.”
McKinley Determined to
Annex
• In spite of these
protests, President
McKinley intends to
submit the Treaty of
Annexation to the
United States Senate,
which would convene
in December of 1897
Signature Petition
Protesting Annexation
Attempt
• September of 1897,
the Men and
Women's Hawaiian
Patriotic League
initiated 21,000
signature petition
protesting the
annexation
1897 Treaty of
Annexation Dead
• By March 1898, these
protests succeeded in
preventing the so-
called treaty of
cession from being
ratified by the Senate
• Two failed attempts to
acquire the Hawaiian
Islands by a Treaty of
Cession
1898 Spanish-American
War
• April 21, 1898, the
United States of
America declares
war against the
Kingdom of Spain
and fights the
Spanish in both
Caribbean and the
Pacific Oceans

The Battle of Manila Bay, May 1, 1898


Congress to Unilaterally
Annex Hawai`i
• May 4, 1898,
Congressman Francis
Newlands (D-Nevada)
submits a “resolution” of
annexation to the House
Committee on Foreign
Affairs
• A resolution is not a
treaty of cession
Congress to Unilaterally
Annex Hawai`i
• June 21, 1898, the New York
Times reported comments made
by Senator Stephen White (D-
California) on the Senate Floor
– The resolution declared there had
been a cession which Congress was
to “accept, ratify, and confirm.” He
demanded to know what cession
had been made, and what lawyer in
the Senate would state that there
had been a cession. He maintained
there had been no cession, as there
could not have been without the
concurrence of both parties
Limitation of U.S.
Congressional Law
Canadian Border
Pacific Border

Atlantic Border
Mex
ica n Bo
rder
n Bo r der
Cuba
Hawai`i Occupied during
Spanish-American War
• In order to secure
the islands as a
U.S. military
outpost, the Senate
approves the
resolution and is
signed into U.S.
Law by President
McKinley on July
7, 1898
Camp McKinley, August 1898
Maui Newspaper, Oct. 20,
1900
Propaganda of
Annexation
Propaganda of
Annexation
• McKinley Statue fronting
McKinley High School in
Honolulu was dedicated on
February 23, 1911 by Sanford
Dole

• As a former Judge, he knew the


difference between a joint
resolution and a treaty

• Sanford Dole was not pardoned


by the Queen and was a fugitive
of Hawaiian law
Judicial Acknowledgement
of 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).
National & International
Laws regarding the U.S.
and Hawai`i
•1898 Annexation Resolution •1840 Constitution

•1900 Territorial Act •1845 Organic Acts

•1921 Hawaiian Homes Commission •1850 Criminal Code


•1893 Cleveland-Lili`uokalani •1893 Cleveland-Lili`uokalani
Agreement of Restoration of Agreement of Restoration of
•1959 Hawai`i Statehood Act •1852 Constitution
the Hawaiian Kingdom Government the Hawaiian Kingdom Government
•1978 Office of Hawaiian Affairs •1859 Civil Code

•1993 Apology Resolution •1864 Constitution

•2009 Akaka Bill •1884 Compiled Laws

International Law
United States of America Hawaiian Kingdom
(Sovereign & Independent State) (Sovereign & Independent State)
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 confers
upon the invading force the means of exercising
control for the period of occupation. It does not
transfer the sovereignty to the occupant, but simply the
authority or power to exercise some of the rights of
sovereignty. §358, FM 27-10
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 the
Occupied State
– Hawaiian Kingdom Constitutional law
– Hawaiian Penal Code
– Hawaiian Civil Code
– Hawaiian Case law
Effects of an Illegal
Occupation
• Legal Consequences for States of the Continued
Presence of South Africa in Namibia, Advisory Opinion,
International Court of Justice, 1971
– All acts done on behalf of Namibia by South Africa without
title to Namibia is invalid and illegal except for registration of
births, marriages, and deaths
• Legal Effects of Postliminium
– Public lands illegally sold by the Occupier can be reclaimed by
the returning Government from purchasers without
compensation
– Private lands illegally sold by the Occupier can be reclaimed by
Private persons from purchasers without compensation
Theory of Hawaiian
Sovereignty
& Governance

Government
Hawaiian
Sovereignty Illegally
Restored
Kingdom
De facto
Hawai`i (1843) Overthrown
Government
1996
1893
Larsen v. Hawaiian Kingdom,
1999-2001
Permanent Court of Arbitration, The
Hague
Hawaiian Complaint filed
with U.N. Security
Council, July 5, 2001

• Security Council addresses violations of international law by and


between Sovereign States
• Hawaiian Complaint is still pending and will be amended to initiate
proceedings to compel the U.S. to abide by international law
Education and
Exposure

After returning from the
Netherlands, I was invited by
Major General Dubik,
Commander of the 25th
Infantry Division, to present
the 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?”
Education and
Exposure
• My response was to enroll as a graduate student in Political
Science at the University of Hawai`i at Manoa to begin
research and provide for a transition in accordance with
international law
– M.A. Degree (2004), specializing in International Relations
– Ph.D. Degree (2008), specializing in Public Law
– Doctoral Dissertation titled “American Occupation of the Hawaiian
Kingdom: Beginning the Transition from Occupied to Restored
State”
• February 25, 2009, I gave a brief to the U.S. Army’s Staff
Judge Advocate, Colonel Herring, and his officer staff at the
Court House, Wheeler, AAF, on the transition back to the
Kingdom
Education and
Exposure
• March 7, 2009, a protest and
notice of continued violations
of international law was
submitted to Admiral Keating,
Commander of the Pacific
Command (PACOM)
• Admiral Keating is the highest
ranking U.S. government
official in the Hawaiian Islands
and is responsible for
complying with the Hague and
Geneva Conventions
Education and
Exposure (1998)
Education and
Exposure (2009)
U.N. Report on the Laws of War (1999)
• “In so far as prolonged occupations are to be allowed to
occur at all, the best that can be said is that the basic
principles in the Regulations on the Laws and Customs of
War on Land are sufficiently elastic to allow for a degree of
evolution within the framework of an occupation regime
which 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 Geneva
Conventions], namely that the occupying power may not
exploit the occupied territories for the benefit of its own
population”
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 imposed
in the Hawaiian Kingdom since December 18, 1893 to
the present shall be the provisional laws of the occupier
• Provisional laws must be consistent with Hawaiian
Kingdom laws and the laws of occupation
• Disband all Legislative Bodies at the State and County
levels
• Legislative authority rests solely with Commander of
the military government
Proposed Transition
• Military government to reconstitute all Courts in the
Hawaiian Islands into Article II Courts
– Article II Courts administer the laws of the occupied State and
the laws of occupation

• Maintain the executive functions of the State of Hawai`i


and its County governments in order to continue to
provide services to the community
• Once the Hawaiian Kingdom Legislative Assembly is
restored in accordance with the 1893 Cleveland-
Lili`uokalani Agreement of Restoration
– The provisional laws of the occupier can be enacted into
Hawaiian statute
– Or these laws can be completely disregarded and replaced by
Hawaiian statute
– Always keeping in mind, however, TRANSITION
For Further
Information:
• Download my doctoral dissertation titled “American Occupation
of the Hawaiian Kingdom: Beginning the Transition from
Occupied 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 Path
Towards Hawaiian Indigeneity”
– http://www2.hawaii.edu/~anu/publications.html
• Information on Hawaiian Kingdom Laws:
– http://www.hawaiiankingdom.org

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