The Lind-Perkins sovereignty debate: The Sovereignty Movement is based in Historical and Legal Fact, not Faith

This is the fourth installment (the second of mine) in the emerging debate between myself and Civil Beat journalist Ian Lind. It is also available at The Hawaiʻi Independent.

I would like at the outset to express my appreciation that Ian Lind’s response to my rebuttal in The Hawaiʻi Independent was, in the spirit of its publisher, civil. These types of debates were common during the heyday of Hawaiian newspapers in the nineteenth century. Such debates are healthy and central to a democratic society, which suggests the Hawaiian monarchy period was more democratic (with a small d) then is often thought. It also holds out hope for a flourishing of new voices in this age of new media.

While I have no interest in debating the sovereignty issue “endlessly for another century,” no one (at least no one very credible) held against the Jewish people the desire to recreate a state two thousand years after the fact. I would argue that the overthrow really wasn’t that long ago – my grandmother was six years old when Liliʻuokalani died, and she lived until 2002 – it’s nearly in living memory. But Lind’s response demanded, and rightly so, a much more thorough examination of the historical and legal questions, particularly that of annexation.

Lind concludes after a discussion the Larsen case at the Permanent Court of Arbitration, that “It’s hard to say where [the] notion comes from” that a treaty is required to annex territory, and that “no authority is offered for this rather surprising assertion.” It’s true I offered no authority, and that’s because it’s not a surprising assertion at all, but rather a standard, accepted principle of international politics. Congressional authority is restricted to US territory and simply does not extend to a foreign country, even (or especially) one in which the US aided an overthrow. The role of Congress (the Senate only) consists of the approval of treaties, which alone are international law. Anything else – an “Act of Congress,” even less a joint resolution – is mere domestic law, not applicable in foreign territory. Professor Lassa Oppenheim, author of International Law (1948), explains that, “cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State,” and that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State.”

In June, 1898, during the debates over the Newlands Resolution, Senator Augustus Bacon stated that “a joint resolution for the annexation of foreign territory was necessarily and essentially the subject matter of a treaty, and that it could not be accomplished legally and constitutionally by a statute or joint resolution. If Hawaii was to be annexed, it ought certainly to be annexed by a constitutional method; and if by a constitutional method it can not be annexed, no Senator ought to desire its annexation sufficiently to induce him to give his support to an unconstitutional measure.” Congressman Thomas Ball of Texas concurred, calling the Joint Resolution “a deliberate attempt to do unlawfully that which can not be done lawfully.”

Lind cites the DeLima v. Bidwell case, but this was in 1901, after annexation, is still domestic, and was one of the “insular cases” depriving Territorial citizens of the full rights of U.S. citizens. It is consequently not an authoritative case on the matter of annexation, but rather a historically notorious case of the abuse of US “possessions.” Further, all territory acquired by the US was done so by treaty (including some of conquest) except for, ostensibly, Hawaiʻi.

Citing US Supreme Court cases as support for his contentions is itself a “matter of faith” that neglects the very fundamental fact that there were two countries involved in the annexation, thereby making this an international legal issue. This is like asking one boxer in a fight to determine the rules of victory after the fact. In contrast, I would cite a text that all can agree is a credible source: the international law text used at the Richardson School of Law at UH Mānoa, International Law and Litigation in the U.S. co-authored by the well-known, late Professor Jon Van Dyke. It notes that the Vienna Convention on the Law of Treaties, Article 27 states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” While the Convention has not been ratified by the United States, “it is cited by US Courts and the Executive view is that much of the treaty on treaties is customary international law.”

Supreme Court decisions do not modify this customary international law that has developed the international system. In a 1988 memorandum entitled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” Acting US Assistant Attorney General Douglas Kmiec stated:

Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. … It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.

And then there was the secret session on annexation of the US Senate in 1898 (the record of which was unsealed in 1969). Behind closed doors, the Senate discussion comprises about 80 pages of text and is difficult to summarize, but the entire text can be seen here. The following quote from Senator John Tyler Morgan strongly suggests that Congress, in fact, did not annex Hawaiʻi. The Senate empowered the President, it appears, to occupy Hawaiʻi, for that is all the executive branch can do. If the President could annex alone, McKinley would have done so – he had already signed the treaty.

Mr. MORGAN. … the President having no prerogative powers, but deriving his powers from the law, that Congress shall enact a law to enable him to do it, and not leave it to his unbridled will and judgment … When he is in foreign countries he draws his powers from the laws of nations, but when he is at home fighting rebels or Indians, or the like of that, he draws them from the laws of the United States, for the enabling power comes from Congress, and without it he cannot turn a wheel.

In addition to showing the limits of the executive and legislative branches, the debate transcript notes Hawaiʻi’s continued neutral status even after the overthrow, and the Senate’s concern over the violation of this status. This is not a legal issue, but it is worth noting that John Tyler Morgan, leader of the annexationist cause in the Senate, was a high ranking “Dragon” of the Ku Klux Klan for the State of Alabama, according to Authentic History: Ku Klux Klan, by Susan Davis (1924).

Senator Richard Pettigrew, an opponent of annexation, asked about the wisdom of bringing neutral Hawaiʻi into a conflict simply for coaling in the Spanish-American war:

Mr. PETTIGREW: Why are there not ten thousand to twelve thousand tons of coal there [in “Unalaska”] eight hundred miles nearer Manila than at Honolulu in a foreign territory? Why bring Hawaii into this complication? Why embarrass that feeble republic, or monarchy, or oligarchy, or whatever it is, with our presence? Why sail eight hundred miles out of the way in order to relieve Dewey? Why did we not sail straight there, coal in our own territory …?

Lind balks at my quotation marks around “annexation,” but he puts them around the overthrow, the legality of which is an absolutely settled issue. In the 1993 Apology Resolution, Public Law 103-150 (which, like the 1898 Newlands Resolution of annexation is just a statement), the United States “apologize[d] to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii [sic] on January 17, 1893 with the participation of agents and citizens of the United States.”  It notes that this “resulted in the suppression of the inherent sovereignty and the rights of Native Hawaiians to self-determination” (http://www.gpo.gov/fdsys/pkg/STATUTE-107/pdf/STATUTE-107-Pg1510.pdf).

It requires a kind of double think to believe that while the overthrow was illegal, annexation was somehow legal. But that seems to be what the majority (though perhaps not Lind) believes occurred – an illegal overthrow followed by a legal annexation. I focused on the lack of a treaty precisely because the history of the overthrow is well-known, while less well-known is the idea that annexation was illegal on its own terms.

Lind concluded his response with the questions: “What if sovereignty isn’t self-evident? And what if it only counts if it addresses the problems that afflict so many Hawaiians in the 21st Century?” Sovereignty isnʻt self-evident if one party in the dispute is to be the arbiter of all rules, rather than using the rules of the system that the nearly 200 countries now in existence, in the very large majority of cases, follow. As for solving problems, I do not view sovereignty as a panacea. It could solve some problems, and likely would create many. But note that no decolonized country has ever asked its colonial overlord to return. Sovereignty is simply a recognized status that Hawaiians wanted to retain in 1898, as evidenced by the Kūʻē petitions, and that  has been repeatedly asserted by Hawaiians today in various forms.

I will conclude with some questions of my own. If a treaty was not required to annex Hawaiʻi, then why did the US try to perform a treaty twice? The first treaty was withdrawn by President Cleveland in 1893 and the second was killed in the Senate in 1897. If a treaty was not required, why did both sides pretend after the fact that there had been one? Lorrin Thurston wrote in his 1904 book of the same title, that one of the Fundamental Law[s] of Hawaii was an “1897 Treaty of Annexation.” Sanford Dole later helped erect a statue of William McKinley at the renamed Honolulu High School that holds a “treaty of annexation” in its hand. In 1902, the US State Department published a History of the Department of State, which maintains, erroneously, that Hawaiʻi was annexed by treaty.

Not all the historical facts are on the side of the sovereignty movement. It’s true, for instance, that several countries recognized the Republic of Hawaiʻi. This is problematic, and it is quite unclear how much those countries knew about the specifics of annexation. But by far the bulk of evidence, as I have set forth, supports the movement’s claims. What we have is a subjugated history, one that is exacerbated by focusing on the claims of one part of the larger sovereignty movement, with whose claims one disagrees. The larger movement itself is based not on faith, but on historically and legally sound reasoning.

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