I took my UH Manoa students to Professor Williamson Chang’s class last week. I was surprised and honored to have Prof. Chang write a guest blog on a topic that couldn’t be more relevant right now – the seeming failure of Fed-Rec. Continue reading
Category Archives: sovereignty
End of Federal Recognition as Indian Tribe is beginning for “Real” Hawaiian Sovereignty – Williamson B.C. Chang
On the day of the overthrow the Hawaiian newspaper Ka Leo o ka Lahui ran on its front page “Ka Moolelo o Hiʻiakaikapoliopele,” the story of Hiʻiaka and Pele. It was as if Hawaiians, knowing that change was coming, looked to their own mythology to retain their identity.
By the time of Liliʻuokalani’s ascension to the throne in January 1891, the stage was beginning to be set for a takeover; the British ambassador Wodehouse, who had been critical of American ambitions, was replaced by a more conciliatory one in the early 1890s, for example. But the real stage-setter was the “Bayonet” Constitution – the constitution of 1887, virtually signed at gunpoint. Willie Kauai has argued that this constitution, with its restrictions on voting rights, was the beginning of racial demarcations, rather than those of citizenship. It gave voting rights by race, whereas previously there had been universal male suffrage for Hawaiian subjects.
There may never have been an overthrow if it werenʻt for US Minister [essentially the ambassador] John L. Stevens and a small group of men from Maine. Stevens was a close friend of James Blaine, US Secretary of State, part of the group that College of William and Mary Professor William Crapol has called the “Maine mafia.” In what the Cleveland administration called “reprehensible” behavior, Stevens was coaching the insurgents on how to conduct the overthrow.
In 1892, Lorrin Thurston had travelled to Washington to get a green light for the overthrow. He communicated that “it may be necessary to secure the government through a coup dʻetat.” B.F. Tracy, Secretary of the Navy responded that “the President does not think he should see you, but if you feel compelled to act as you have indicated, you will find an exceedingly sympathetic administration here.” Crapol has said that this arms length kept between President Harrison and Thurston, and the statement that they would be “sympathetic,” without mentioning the coup directly, strongly suggests the knowledge that the US was possibly in breach of international law. It was B.F. Tracy who later sent the order to US Marines on the USS Boston (a state of the art battleship) the following year to head to Honolulu and await orders.
Louis “Buzzy” Agard has found encoded documents (and the code book!) in the US archives that show a US plan to attack the major ports in Hawaiʻi ending in Honolulu. This changes the story from a US-backed overthrow to a US overthrow, and sheds light on Stevens’s actions – they were secretly condoned and encouraged by the Harrison administration.
The Queen planned to promulgate a new constitution, but the cabinet backed down – likely aware of the plans that were being fomented by the conspirators. The Queen counseled patience.
COMMITTEE OF SAFETY
The so-called “Committee of Safety” – a name based on the pretense that American lives and property were in danger was comprised of 9 foreigners and 4 haole citizens of the Kingdom.
Marshall Charles Wilson closed saloons early – 9:00pm rather than 11:00pm – to prevent any pretext for foreign troops to land (as they had done during the riots after Kalākaua’s election). He sent agents to do surveillance on the conspirators. Wilson proposed to arrest the conspirators and put the island under martial law, but the cabinet advised against it and refused to give Wilson permission to make arests. Wilson felt that Hawaiian forces could successfully oppose the Marines. They had over 200 men, whereas there were 152 men in the Marine battalion, and 11 officers.
Stevens wrote: “in view of the existing critical circumstances in Honolulu, I request you to land US Marines and sailors under your command to secure American life and property.” G. Wiltse, commander of the USS Boston responded to Stevens’s request and marched his men past the palace. At 4:25 Wiltse landed the Marines to “assist in preserving public order.”
The cabinet had not requested the landing of the troops – cabinet member Samuel Parker requested the “authority upon which this action is taken.” The marines stationed themselves on Mililani Street, but ended up staying at a hotel that, ironically, had been Liliʻuokalani’s childhood home. [I heard this recently, but have not verified it]. The Queen asked why the troops had landed when everything was at peace. Attorney General Paul Neumann said that the charged that lives and property were in danger was “spurious and false … lives and property were as safe here as in Kennebec, Maine.” This was a reference to the curious link to three towns in Maine that seemed to be the origin of annexationist sentiment – Augusta, Hollowell, and Kennebec.
The conspirators continued to recruit at a lodging house, and Marshall Wilson suggested proclaiming martial law and arresting the conspirators. The Queen asked why the troops had not stationed themselves in front of American properties instead of “with guns aimed at us?”
January 17, 1893: by 11:00am Dole had been named as President of the Provisional Government. He had considered the matter overnight, as a Supreme Court judge undoubtedly knowing that his actions constituted treason.
On the street, a policeman named Leialoha was shot trying to intercept a wagon of arms.
Dole and a small group of men walked to the entrance of the Government building, the present-day Judiciary building. Henry Cooper, a denizen read the proclamation: “the monarchical government is hereby abrogated and a Provisional Governement established.” Those who signed the proclamation included McCandless, Wilhelm, Thurston, Smith, Jones, Emmeluth, Ashley, Cooper, Frear, Bolte, Browne, and Waterhouse.*
The Palace and barracks and police were still under the control of the Queen and could make an attempt to resist. But Minster Stevens recognized the Provisional Government immediately: “I recognize said Provisional Government as the de facto government of the Hawaiian islands.”
Liliʻuokalani yielded not to the Provisional Government, but to the “superior force of the United States:”
I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom. That I yield to the superior force of the United States of America, whose minister plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said Provisional Government.
Now, to avoid any collision of armed forces, and perhaps the loss of life, I do, under this protest and impelled by said forces, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo (?) the action of its representative and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.
Done at Honolulu, this 17th day of January, A. D. 1893.
(Signed) Liliuokalani R.
(Signed) Samuel Parker, Minister of Foreign Affairs.
(Signed) Wm. H. Cornwell, Minister of Finance.
(Signed) John F. Colburn, Minister of Interior.
(Signed) A. P. Peterson, Attorney-General.
At 7:15pm Wilson disarmed the police and others who had taken up arms.
Hui Aloha ʻAina noted the irony that after only eight days, the Provisional Government requested to be a protectorate of the US.
Stevens soon preached of the opportunity Hawaiʻi’s overthrow presented to the burgeoning American empire: “the Hawaiian pear is now ripe and this is the golden hour for the United States to pluck it.” But the overthrow was a kind of non-event and was always really about America’s reaction to it. The lame duck President Harrison rushed a treaty of annexation to the Senate in February. But in March, 1893, Grover Cleveland was inaugurated, and withdrew the annexation treaty from the Senate on March 9th, 1893 (executive documents, p. 1190).
On March 29th, 1893 former Senator James Blount arrived in Honolulu and ordered the troops back to their ships and the lowering of the American flag. Blount asked what the result would be if there were to be a vote on the question of annexation. One respondent noted that “it would be overwhelmingly defeated.” Later, Congress ensured that the matter would not be put to a vote.
The Womenʻs Hui Aloha Aina issued a statement:
We resent the presumption of being traded like a flock of sheep or bartered like a horde of savages, and we could not believe that the US could tolerate such an annexation by force, against the wishes of the majority of the population – such an annexation would be an eternal dishonor.
Harperʻs weekly noted the irregularity of the event:
the Hawaiian islands have been stolen and offered to the United States by the thieves. What is the duty of the US, accept the stolen goods?
As late as December, 1893, Lili’uokalani noted in the book Hawaii’s Story by Hawai’i’s Queen, that President Cleveland still considered her the head of state.
On December 18th, 1893, Grover Cleveland addressed Congress, informed by the Blount report:
By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair. The provisional government has not assumed a republican or other constitutional form, but has remained a mere executive council or oligarchy, set up without the assent of the people. It has not sought to find a permanent basis of popular support and has given no evidence of an intention to do so. Indeed, the representatives of that government assert that the people of Hawaii are unfit for popular government and frankly avow that they can be best ruled by arbitrary or despotic power.
The law of nations is founded upon reason and justice, and the rules of conduct governing individual relations between citizens or subjects of a civilized state are equally applicable as between enlightened nations. The considerations that international law is without a court for its enforcement, and that obedience to its commands practically depends upon good faith, instead of upon the mandate of a superior tribunal, only give additional sanction to the law itself and brand any deliberate infraction of it not merely as a wrong but as a disgrace. A man of true honor protects the unwritten word which binds his conscience more scrupulously, if possible, than he does the bond a breach of which subjects him to legal liabilities; and the United States in aiming to maintain itself as one of the most enlightened of nations would do its citizens gross injustice if it applied to its international relations any other than a high standard of honor and morality.
In a seemingly scitzophrenic move, the Provisional Government refuses to relinquish control, saying that the US is intervening in the affairs of a sovereign country, then proceeding to call themselves the Republic of Hawaiʻi, with an independence day of July 4th. At their 1894 Constitutional convention, 3000 voted, and 14,000 refused to vote.
In January 1985, Robert Wilcox attempted an insurrection. The plot was discovered and he and 200 others, including Prince Kūhiō, were arrested for treason, and tried before a military tribunal.
The queen was imprisoned in the palace for eight months. She was pardoned in October 1896, and she travelled to Washington, D.C. in December to lobby against annexation and protest to the State Department.
There was debate over the extent of the American empire, whether it would be hemispheric or global. Itʻs not hard to see the irony of Cleveland’s position, as one newspaper pointed out: “never before has an American executive [attempted to] stamp out Republicanism and restore monarchy.”
Even with the 1898 breakout of the Spanish-American war, there was not enough support for a treaty, and annexation was purported to be achieved via joint resolution. As one newspaper put it: “if Congress should strictly obey the constitution, annexation could not take place” [Harpers Weekly]
By the end of the century the US had also taken Guam , Samoa, Puerto Rico, and the Philippines.
One commentator noted: “Annexation is not a change, it is a consummation.”
On August 12, 1898, 12 noon, the annexation ceremony took place. Surrounded by US Military troops, Dole exchanged a treaty for a Joint Resolution, and proclaimed:
I now yield up to you representative of the US, the sovereignty and public property of the Hawaiian islands.
As Iʻve noted elsewhere, the purpose of the overthrow was always annexation. In The Secret Session, I published the entire transcript of the closed-door session of the Senate in which the Joint Resolution was discussed.
* Some members of the Committee of Safety are described in another post, Who Was the Committee of Safety? The Inner Circle of Overthrow
This post is a way for me to sort out my ideas and understandings of the concept of occupation. It is also for my students in the course Protest under Occupation in the Matsunaga Institute for Peace and Conflict Resolution, to clarify the very dense readings in Benvenisti’s The International Law of Occupation and other readings.
Eyal Benvenisti (2012, 1) states that “the law of occupation is intimately related to the law of sovereignty, and to a large extent serves as its mirror image.” This underscores the quite central point that the law of occupation applies only to recognized sovereign states. This has been an area of some confusion for me (and I suspect others), since Israel’s presence in Palestine (Gaza and the West Bank) has been called “occupation” for many years. This term would apply now, since Palestine received recognition from the majority of UN members, in both the General Assembly and UNESCO. But it should not have applied before such recognition. The seeming milestone of recognition has passed almost unnoticed. This is a cause for concern over the effectiveness of the law of occupation, and indeed of recognition itself. There is one caveat: it some hold that full recognition of a state that is seceding must be recognized by the state it is seceding from (i.e., Israel must recognize Palestine).
Some premises of the law of occupation:
Occupation is considered “a state of exception for international law.” As Giorgio Agamben notes, the sovereign is that for which a state of exception exists in terms of the law, i.e., the sovereign is “he” to whom the law does not apply.
Because the law of occupation begins to apply once a law has already been broken (the first law of nations – that law of non-intervention), occupation thus fills a “governance gap” providing some type of governance where the occupied government is overthrown.
Temporary allegiance: “inhabitants are under [the occupant’s] sway and have to render obedience to his commands.”
The bases of the law of occupation include the Hague regulations, Geneva Convention IV, and customary international law.
The working definition of occupation involves the occupier (or “occupant”) having “effective control” and “boots on the ground”- that is, it actually controls the territory, rather than merely claiming to control it. Occupation is thus a “de facto regime” – a regime “in fact,” but not “in law” (de jure).
The Occupant has no title to territory, but this “does not release it from its obligations and responsibilities under international law” (Benvenisti, 2012). The occupant is also “responsible for local public institutions such as the local police, which [it] directs and controls,” in other words, it is responsible for maintaining order during the occupation.
While some have questioned the relevance and effectiveness of the law of occupation, according to Benvenisti:
Despite … the evolution of new normative frameworks such as the law on self-determination or human rights law, the law of occupation has retained its relevance and significance (Benvenisti, 2012, 19).
Origins of the concept
Occupation was “conceived as a temporary regime existing until the conclusion of a peace agreement between the enemy sides” (Benvenisti, 2012, 20). It is thus the “mirror image of the concept of sovereignty” (Benvenisti, 2012, 21). According to eighteenth century international legal theorist Emmerich de Vattel, there is “no difference between [an] occupant and a conqueror who may treat the territory gained as under its sovereignty”(Benvenisti, 2012, 23).
Characterization of Occupation
Occupation begins: “once control is established” – i.e., there is no delay between the beginning of occupation and the responsibilities afforded to the occupant, he is immediately responsible (Benvenisti, 2012, 55).
Occupation ends when: 1) there is a loss of effective control, 2) the occupant can no longer exercise authority, 3) the consent of the sovereign is granted through a peace treaty, or 4) there is a transfer of authority to a government endorsed by the occupied population through internationally-recognized referendum.
Occupation is by definition military in nature, and rather than granting unlimited powers on the occupier, places obligations on them – to administer a temporary government, provide services, etc. This obligation begins immediately. At first, the law of occupation granted very few protections to the residents of an occupied state, and even allowed for punishment of those who defy the occupying government’s dictates. This is problematic for those who currently deny the validity of the State of Hawaiʻi and its government apparatus. But the law evolved over time to grant further rights and protections to the occupied.
The arguments for occupation and the illegality of annexation seem to be going mainstream, at least in Hawaiʻi. Keanu Sai was on the front page of the Star Advertiser, and on Hawai’i Public Radio in the same week. Journalists, while still somewhat dubious of the arguments, also appear to be noticing the establishment’s lack of a credible defense of the status quo. When asked on Hawaiʻi News Now whether the Kingdom of Hawaiʻi still exists, Governor Abercrombie simply stated, “the Kingdom of Hawaiʻi does not exist,” but provided no support for his claim. He did essentially the same thing in a letter to the Secretary of Interior, skimming over the history of annexation in a way my 11th grade students would be embarrassed to do.
At the same time, the burden of proof seems (rightly, it seems) to be on Keanu Sai and his allies to show the veracity of their claims. This is where the burden should be placed in terms of logic: the logical fallacy onus probandi* holds that “the burden of proof is on the person who makes the claim, not on the person who denies (or questions the claim).” So, again, it seems that the burden here is correctly placed. However, in international law, when it comes to a state (nation-state or country) the burden of proof lies on the party that denies the existence of the state, the Hawaiian Kingdom in this case. This could be called the doctrine of presumption. As International law professor and Permanent Court of Arbitration (World Court) judge James Crawford states:
There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.
It seems to me that international law takes precedence in this case. Here logic and international law appear to be at odds, but this is only because the argument for the continued existence of the Kingdom is the surprising one. We must be vigilant in our arguments, because, in my view, this issue will be resolved in discourse. There are other fallacies; for example I have fallen myself for the Argument from ignorance (argumentum ad ignorantiam) – assuming that a claim is true because it has not been or cannot be proven false. Because the “establishment” cannot satisfactorily explain away the claims that Sai and others bring up, does not automatically make those claims true.
*from Latin “onus probandi incumbit ei qui dicit, non ei qui negat”
The fundamental disconnect among Hawaiians today is that between law and power. As I noted in Sovereignty and Mental Models, “one side [the independence movement] sees law as the driving force behind Hawaiʻi’s ʻlimits and opportunities,’ the other [Fed rec] sees only power.” What is needed is an analysis that bridges these two ways of looking at our political reality. The Slovenian philosopher Slavoj Zizek offers one such analysis. He uses film as a gauge of the state of contemporary political ideology, but in doing so, shows our relationship with our respective governments – whether democratic or totalitarian.* He often uses films that appear to have liberal themes to show underlying, conservative, anti-democratic “micro-textures.”
Zizek shows that embedded in ostensible democratic narratives are fascist or totalitarian undercurrents. In relation to even our most democratic governments – those with free media, checks and balances, etc. – we hear (and have a sublimated desire to hear) the message that our governments “do what [they] like.”
This was seen in the armed police at the (ostensibly democratic) hearings of the Department of Interior on Oʻahu this week. It is seen in the passive acceptance of the governments violations of its own law at the Federal (some say we are in a post-constitutional era) and State levels. Dismissals of the legal arguments of sovereignty activists and scholars are tantamount to saying that our society is not run by the rule of law.
Using the psychoanalytic theories of Jacques Lacan, Zizek shows that we all have “fascist dreams.” It is as if we have a public and a private life in our own minds – a sublimated consciousness that we hide even from ourselves. For Hawaiians, our tradition is not one of democracy, so it takes conscious effort to become process-oriented. This is a worthy effort, otherwise we unconsciously take on the attitude of Lorrin Thurston, who said in the formation of the Republic of Hawaiʻi, “we will shut out from participation all those who are not with us.” By bringing these subconscious tendencies to our own awareness, we can consciously decide which path to take for ourselves and the nation: one of law or of pure power.
* Films Zizek analyses include The Sound of Music and Titanic.
‘If they can get you asking the wrong questions, they don’t have to worry about answers.’
Thomas Pynchon, Gravity’s Rainbow
Randall Akee wrote in the Hawaiʻi Independent that media coverage prior to the Department of Interior hearings was “presumptuous.” Iʻm finding that the coverage during the hearings seems to miss the point. The Star-Advertiser lead article was headlined “Hawaiians Reject Federal Input.” While this is somewhat accurate if read in the right way, it could easily be misconstrued as Hawaiians rejecting the input of the Federal government. What Hawaiian rejected was the opportunity to give input on several questions pertaining to the relationship between their “community” and the Federal government. This was followed up with the headline “Conduct at Native Hawaiian Meetings Bemoaned.” Rather than conduct, the media should focus on content. Hawaiians are now asking the right questions, including “by what authority are you in Hawaiʻi?” This questions the process, their presence and undermines their assumptions – namely, that annexation was legal.
Civil Beat ran a negative headline: “Kanaka Maoli to Feds: ʻGet Out of Our House! Go Home!'” While this is also accurate in a sense, focusing on the aggressive delivery of a minority of the speakers undermines the quite valid and rational logic of the speakers (even the aggressive ones). Chad Blair writes: “’Get out of our house!’ several speakers told the Interior panel, which included Esther Kiaaina, a senior adviser to Interior Secretary Sally Jewell. ʻGo home!'”
Blair goes on: “they cited analyses of treaties, bills, acts, resolutions, petitions and law that led them to passionately believe that Hawaii is quite independent of the other 49 states.” Nevermind the actual content of the “treaties, bills, act, resolutions, petitions and law,” Hawaiians, according to Blair simply “believe … the U.S. government had no jurisdiction in the islands.” Perhaps Blair was exercising journalistic neutrality, but this is where such a practice may be misguided. The entire system is biased toward the Federal viewpoint and against the Hawaiian perspective. Attempting to balance these with judgement-free accounts is taking the side of power.
The only major media site that got it right was the Huffington Post, whose headline read “Hawaiians Say ‘This is Our Country.'” This sums it up very eloquently.
Written testimony can be submitted for 60 days from the start of the hearings at this site:
This is a quick summary of what I was able to catch from the June 23rd hearing.
At the Capitol building today, the independence movement was out in force. I had the sense that support independence was growing, but it was hard to back up with numbers. Even the petition supporting Kamanaʻopono Crabbe, the closest thing to a referendum on independence, topped out at twenty-eight hundred. But today seemed to show that independence is gaining a kind of consensus support – either that, or independence supporters like attending hearings.
I will say that to the Department of Interior’s (DOI) credit, the last hearing on Federal recognition was in 2001 – in thirteen years this was the first hearing on the issue.
The trick with the rule change proposed by the DOI is that most Hawaiians, even most fervent independence supporters, favor protecting existing entitlements. So how can that be done while preventing a Federal recognition government from forming? Paraphrasing a statement from Movement for Aloha No ka ʻĀina (MANA), Professor Jonathan Osorio had what I thought was the best solution to this predicament: Interior should protect entitlements directly without forming a government-to-government relationship with the native Hawaiian community.
A talking point sent out by Hawaiian Kingdom blog seemed to have reached a broad audience. A fairly large proportion of those giving testimony asked “by what authority is the Interior Department here?” Almost verbatim.
I wasn’t present for the entire hearing, but while I was there, only two spoke in favor of the rule change – one was Native Hawaiian Roll Commissioner Naʻalehu Anthony, who said that while he and Governor Waiheʻe were well aware of the historical issues others raised, he wanted the issue to stop with his generation. He stated, to applause, “I no like just leave this for my son.” He recalled being at similar hearings as a child. Another was a woman working in an industry related to tourism. She emphasized the need for a strong economy underlying a sovereign government and urged a respectful discourse. Apparently, Collette Machado spoke in favor, sparking a spontaneous outbreak of the national anthem Hawaiʻi Ponoʻī.
When Andre Perez asked how many people were involved in the prior nation-building efforts, at one point only OHA trustees raised their hands.
Both Henry Noa and Prof. Noelani Goodyear-Kaʻōpua questioned the “reestablishing of a relationship” between the two governments, when no relationship existed other than the treaty relationships with the Kingdom. Goodyear-Kaʻōpua called the process a small first step, but asked DOI to recognize that “you are on our land.” She also proposed free, prior and informed consent and neutral international monitoring. Several also reminded DOI that Hawaiʻi was a neutral, multi-ethnic country whose non-native citizens were being disenfranchised.
The reaction of the panel was difficult to discern, since they did not speak, but when told that they were “pawns” of their government, one speaker commented on the expressions of the panel, which seemed dubious.