Tag Archives: Acting Hawaiian Kingdom

The Rule Change

The effort for Federal recognition of Native Hawaiians for the purposes of creating a governing entity went through three stages, or attempts: The Akaka Bill, direct recognition by the Department of Interior and the rule change.

Dept. of Interior (DOI) Hearings:

https://www.doi.gov/news/pressreleases/interior-considers-procedures-to-reestablish-a-government-to-government-relationship-with-the-native-hawaiian-community

In this latest (and what seems to be the most successful) attempt DOI looked to reestablish government-to-government relationship between Federal government and Native Hawaiian community. On June 18, 2014, the DOI stated,

The Secretary of the Interior (Secretary) is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The purpose of this advance notice of proposed rulemaking (ANPRM) is tosolicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community. In this ANPRM, the Secretary also announces several public meetings in Hawaii and several consultations with federally recognized tribes in the continental United States to consider these issues.

Secretary of the Interior, Sally Jewell stated “The Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.” Public hearings throughout Hawaii, from June 23 to August 8, 2014, which I wrote about in the Nation magazine, asked 5 “Questions to be Answered:”

  1. Should the Secretary propose an administrative rule to recreate a government-to-government relationship with the Native Hawaiian community?
  2. Should the Secretary assist the Native Hawaiian community in reorganizing its government?
  3. What process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
  4. Should the Secretary instead rely on reorganization through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?
  5. If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
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Prof. Williamson Chang

On September 29th, 2015, the DOI released the rule change. UH Law Professor Williamson Chang released the following statement in response:

The Department of Interior issued its long awaited proposed rule as to a Native Hawaiian Governing body. It was not much. The Federal Government is giving very little. If this is the last word on the federal government and Hawaiians, from the point of view of the United States’ the history of Hawaii ends with a “whimper not a bang”
1. It starts by noting that only the written comments counted, not the vehement oral testimony.
2. It is premised on false history: At page 6 of the long document, it states the Republic of Hawaii ceded its lands to the United States and that Congress passed a joint resolution annexing the Hawaiian Islands. Accordingly, all that follows flows from a flawed premise: The United States acquired the Hawaiian Islands and has jurisdiction. Moreover, it claims that the United States has title to the crown and government lands.
3. Even so, it gives very little. It would make a consenting Native Hawaiian government “just like” a tribe, but not a tribe.
4. The law that applies to tribes would not apply to the Hawaiian entity. Congress would have to explicit[ly] write Hawaiians in to Indian programs—just as it is today. No gain.
5. It admits that the purpose of the proposed rule is to protect Hawaiians from constitutional attacks on Hawaiian-only entitlement programs. The Department of the Interior, however, does not control the U.S. Supreme Court. The Court would still be free to strike down Hawaiian only programs if it so desired.
6. The Hawaiian governing entity gets no lands by this proposal
7. The proposal does not affect Federal holdings or title to the Crown and Government lands.
8. There is to be no compensation for past wrongs.
9. The rule limits the Hawaiian government to Hawaiians only.
10. Only one Hawaiian government can establish a relationship with the Federal Government under this proposal.
11. It precludes federal recognition of a restored Kingdom of Hawaii, or Provisional Government that would become a State either as a Kingdom or any other.
12. The Hawaiian Government cannot be in violation of “federal laws” such as the prohibition on ‘titles” in the U.S. Constitution—thus no quasi-Kingdom either.
In summary—and this is from a very brief reading. I may be in error, I may have overlooked various important sections, but in the name of getting this to you as soon as possible. Here is the link to the proposal, its supporting documents and frequently asked questions.

The Notice of Proposed Rulemaking read:

The U.S. Department of the Interior is proposing to create an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States.  Under the proposal, the Native Hawaiian community — not the Federal government — would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.

The proposal, which takes the form of a Notice of Proposed Rulemaking (NPRM), builds on more than 150 Federal statutes that Congress has enacted over the last century to recognize and implement the special political and trust relationship between the United States and the Native Hawaiian community.  The NPRM comes on the heels of a robust and transparent public comment period as part of an Advance Notice of Proposed Rulemaking (ANPRM) process that began last year and included public meetings.  More than 5,000 members of the public submitted written comments to the ANPRM, and they overwhelmingly favored creating a pathway for re-establishing a formal government-to-government relationship.

Members of the Hawai’i Congressional delegation predictably responded in favor of the rule change, as did Governor Ige. Rep. Tulsi Gabbard’s statement was perhaps the most substantive:

Many indigenous groups in the U.S. have the right of self-determination, and today’s announcement acknowledges that that right also belongs to the Native Hawaiian people, one of the largest native communities in the country. These rules incorporate over 5,000 public comments submitted to the Department of Interior (DOI), and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government. I encourage all interested parties to submit their comments to DOI during the 90-day public review period to ensure a collaborative final ruling.

The list of candidates for delegate to the constitutional convention was released by Na’i Aupuni the next day. It can be viewed here, but prominent candidates included John Aeto, Keoni and Louis Aagard, OHA trustee Rowena Akana, former Mayor Dante Carpenter, Prof. Williamson Chang, Jade Danner, Prof. Lilikala Kame’eleihiwa, Senator Brickwood Galleria, Adrian Kamali’i, Sovereignty leader Dennis “Bumpy” Kanahele, Colin Kippen, Prof. Daviana McGregor, former OHA administrator Clyde Namu’o, and Native Hawaiian Legal Corp. director Moses Haia, among many others.

There is a question of whether the rule change gives the kind of legal protection that was the point of Federal recognition, or if it is merely a Federal sanction of a process already happening. The Hawai’i Independent ran a story questioning the validity of the rule change:

“We have to remember that this process started with the State of Hawai‘i, not the Hawaiian people,” [Andre] Perez told The Independent over the phone. “Hawaiians did not initiate or pass Act 195, which created Kana‘iolowalu. The state legislature did, and gave the governor the power to appoint members to the commission. True self-determination does not come with a state-initiated, state-controlled process like this.”

Keanu Sai happened to speak to my class the day after the rule change. As I pondered the question of whether this was a victory for the Fed Rec set, it seemed to have no effect on Sai’s view that it was simply more Federal legislation inapplicable in foreign (Hawaiian) territory.

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My article in The Nation – the original

There were several versions, but you may be able to see the difference between the final version and this one below: The Nation edited it to be more colloquial (I wasnʻt too happy about that) but also had one of the most rigorous fact checking regimens of any US publication (that was good). I didnʻt have many “wrong” points, but had to “tone down” some of the language from this original. Also, some had to be cut for their (restrictive for this topic) 1000-word limit. But The Nation is the oldest weekly newsmagazine in the US. Founded in 1865, it is celebrating its 150th anniversary this year (2015). It is also the most important media outlet of the left, and I was quite proud to write for them. You should see some significant differences in turns of phrase and the way data is presented.

On June 24th, in the conference room of the Hawaiʻi State Capitol in Honolulu, Native Hawaiians gathered for the first of several hearings held by the U.S. Department of Interior (DOI) throughout the Hawaiian Islands as well as on the U.S. continent. The hearings were held to ask Native Hawaiians for input on the formation of a Federally recognized nation. Surprisingly, after decades of endeavoring to achieve such a status, the overwhelming response to the panel of DOI officials was “aʻole” – no. At the Honolulu hearing, Political Science Professor Noelani Goodyear-Kaʻōpua questioned the “reestablishing of a relationship” between the Federal government and the Native Hawaiian community, when no relationship existed other than the treaty relationships with the Hawaiian Kingdom. She asked DOI to recognize that “you are on our land,” proposed “free, prior and informed consent” and neutral international monitoring. Several speakers also reminded DOI that Hawaiʻi was previously a neutral, multi-ethnic country, and stated that the descendants of its non-native citizens were now being disenfranchised. Between two and five percent at all the hearings spoke in favor, including Hawaiian Roll Commissioner Naʻalehu Anthony, who said he did not want to pass the struggle on to his son after watching three generations fight for Hawaiian rights.

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Mainstream media coverage focused on tone, rather than content and missed the real story, which was that a shift in Hawaiian political will and a consensus had emerged over the proper route to sovereignty. In a community known for its divisiveness, this shift was quite stunning. Under the radar, a new view of Hawaiian history had taken hold, one in which debates over the history of the Hawaiian Kingdom, overthrown in 1893, were at the center.

Unified in 1810 by King Kamehameha I, Hawaiʻi was recognized internationally as a sovereign, independent country beginning in 1843. Fifty years later, the Kingdom of Hawaiʻi had treaties with nearly all the sovereign states in existence, including five with the US. In 1893, Queen Liliʻuokalani was overthrown by sugar businessmen backed a company of US Marines. President Cleveland called this unauthorized intervention an “act of war,” withdrew the proposed annexation treaty and agreed to reinstate Liliʻuokalani. On Feb February 9th, 1893, The Nation wrote, “We could not by annexation at the moment gain anything which we do not now possess.” A standoff between the President and Congress over the question of annexation prevented any action for five years.

When William McKinley took office in 1897, he attempted a second treaty, but this failed in the Senate, in part because of petitions opposing annexation. When the Spanish-American war broke out the following year, McKinley and annexationists in Congress led by Alabama Senator (and Ku Klux Klan “Dragon”) John Tyler Morgan decided, in the words of Congressman Thomas Ball of Texas, “to do unlawfully that which can not be done lawfully.” In 1898 they purported to annex Hawaiʻi via Joint Resolution. While the Congress issued a formal apology to the Hawaiian people in 1993 “for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States,” it is the subsequent annexation by resolution that lies at the heart of the current drama.

Those who accept that Hawaiʻi was annexed, legally or not, have pursued a course of Federal recognition leading to a limited form of “sovereignty.” This view is epitomized by former Governor John Waiheʻe, who said at the University of Hawaiʻi that one “would have to be illiterate” not to recognize the illegality of annexation, but questions how such a position would benefit Hawaiians. Office of Hawaiian Affairs (OHA) Trustee Oswald Stender said more bluntly, on film, that Hawaiʻi was illegally annexed, but “so what?” The “domestic” approach to sovereignty first took form in the proposed Native Hawaiian Government Reorganization Act – the so-called “Akaka Bill” – named after its sponsor, the Native Hawaiian Senator Daniel Akaka. The bill circulated through Congress for twelve years before expiring with its sponsor’s retirement and the death of senior Senator Daniel Inouye in 2012. A new approach was devised in which the Department of Interior would propose “rule-making” changes that would allow Hawaiians to join the more than five hundred native nations already in existence. Fitting Hawaiians’ unique history into the template for Federal recognition has been a persistent challenge for advocates of this approach.

Others, taking the law at face value, find that if annexation was illegal, it is tantamount to saying that it did not occur at all. As a mere domestic instrument, a resolution, it is argued, cannot have effect in foreign territory. This means Hawaiʻi is under a prolonged military occupation, albeit one that the United States has not yet admitted to. The independence view was buoyed by a case in the International Court of Arbitration involving Hawaiʻi as an independent country. Hawaiʻi will also be listed in the 2013 War Report, a catalog of contemporary international conflicts published in Geneva, Switzerland, as an occupied state. The independence camp was given a further lift when in May, OHA CEO Kamanaʻopono Crabbe sent a letter to US Secretary of State John Kerry asking for “advisement” on possible breaches of international law stemming from OHA support of Federal Recognition. Unsurprisingly, the letter caused uproar on one side and prompted petitions of support on the other.

At its root, the conflict between supporters of independence and Federal recognition stems from divergent beliefs about law and power. Independence advocates view the international law and specifically the law of occupation as safeguards against the continuation of an illegally constituted, and essentially occupying, government – the State of Hawaiʻi. They call not for decolonization, but deoccupation, as was done in the Baltic states (Latvia, Lithuania and Estonia) upon the breakup of the Soviet Union. Federal recognition supporters are sometimes beneficiaries of Hawaiian “entitlements” such as the Federal Hawaiian Home Lands homesteading program or are U.S. military veterans, and argue that the United States would never allow a withdrawal regardless of Hawaiʻi’s legal status internationally. These views and the paths they imply appear to be mutually exclusive, making reconciliation difficult. Some suggest that a further reexamination of Hawaiʻi’s widely misunderstood history is implicated as the only route to any kind of reconciliation.

ʻUmi Perkins teaches Hawaiian history at the Kamehameha Schools and Political Science in the University of Hawaiʻi system.

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Occupation redux

In the (proposed) 1899 Hague Regulations, the basic premise of the law of occupation was stated:

The country invaded submits to the law of the invader; that is a fact; that is might; but we should not legalize the exercise of this power in advance, and admit that might makes right (Beernaert in Benvenisti, 2012, 90).

In the fourth Geneva Convention (GCIV) (which was crafted to with the “aim of imposing on occupants ʻa heavy burden”) (Benvenisti, 2012, 97), the norm was codified that the occupant (occupier) must take three considerations into account: “itʻs own security interests, the interests of the ousted government, and those of the local population, which may be different from the interest of their legitimate government” (Benvenisti, 2012, 69).

First Geneva Convention, 1864

The norms of GCIV were formed in the context of the Franco-Prussian war of 1870-71, which created an expectation that during occupation the occupying military and the civilian population could be kept at a distance from each other and even co-exist relatively harmoniously (Benvenisti, 2012, 70). As for changes to law, they were to be kept at an absolute minimum, but were allowable for the purpose of making occupation practicable and functional on the ground. Benvenisti (2012, 90) notes that the rule that changes to law are only when “absolutely necessary … has no meaning” because the occupant is never absolutely prevented from complying to local law.

Article 43 of the GCIV was a mandate to “restore and ensure public order and civil life” – this came to be seen as an “incomplete instruction to the occupant” because of the conflicts of interest between occupant and the ousted government (Benvenisti, 2012, 71).

Changes to the law of occupation also continued as human rights became more of a concern to the international community. As this occurred, actual occupants began to seek to avoid the responsibilities of occupation by “purport[ing] to annex or establish[ing] puppet states or governments, rely[ing] on ʻinvitations’ from indigenous governments [the Soviet/Russian formula]” and other means (Benvenisti, 2012, 72).

But as is often pointed out, these means are not legitimate as GCIV states “the benefits [or applicability] of the [Geneva] Convention shall not be affected … by any annexation … of the whole or part of the occupied territory.” In short, the occupant retained the duty to fulfill its obligations under the law of occupation (GCIV in Benvenisti, 2012, 73).

As with all legal documents and doctrines, however, it is “impossible to read the drafting history of the GCIV without paying close attention to the diverse concerns of the different state representatives” (Benvenisti, 2012, 98). That is to say, it is contingent on the conditions of the time and context in which it was crafted.

HUMAN RIGHTS

As it developed in the twentieth century, the human rights regime came to decenter the law of occupation’s emphasis on the agency of states as the only actors. People came to play a role in international law, under which previously only states were subjects. In the occupation of Iraq, for example, Amnesty International pushed for changes in Iraqi law – normally in contravention of the law of occupation – for the purpose of the protection of human rights. Occupation was in this case seen as an opportunity to improve conditions for the citizens of the occupied state (a rare, but quite possible scenario). Sharia law was in this case seen as “incompatible” with GCIV rights (Benvenisti, 2012, 103).

NECESSITY

Keanu Sai has used the “doctrine of necessity” as a justification for forming the Acting Government of the Hawaiian Kingdom; the necessity of an “organ” to speak on behalf of the occupied state, in other words, necessitated the creation of a “government” whose legitimacy would otherwise be highly questionable. Benvenisti notes this doctrine as a “recognized justification for legislation by the occupant,” but noted that it does not apply to the civil and criminal laws of the occupied state: “the penal laws of the occupied territory shall remain in force,” (Benvenisti, 2012, 96) ostensibly to prevent draconian trials and execution of resisters against the occupation. However, it is also recognized that the occupant would be “prevented from respecting the laws in force” in the rare case that they “conflicted with its obligations under international law, especially [the GCIV] (brackets original)” (Benvenisti, 2012, 102).

DEBELLATIO

Sai also notes that Debellatio, or conquest, while seen as a legitimate form for the transfer of sovereignty, was essentially outlawed in the Americas – by the United States and some of the recognized sovereigns in South America – because they feared their former colonial overlords would re-conquer them. This, in his view, was the purpose of the 1823 Monroe Doctrine. As Jay Sexton notes in his book  The Monroe Doctrine, “American statesmen exploited fears of foreign intervention in order to mobilize political support” (Sexton, 2011, 12). Sexton also notes how the Tyler Doctrine (actually proclaimed in 1842 by secretary of state Daniel Webster) “effectively extended the 1823 message  [the Monroe Doctrine] to Hawaiʻi” (Sexton, 2011, 112). As a result, the United States does not recognize debellatio – conquest – as a legitimate form of transferring sovereignty. This quells any argument that even though there was no conquest of the Hawaiian Kingdom, “there would be.”

MANAGEMENT OF NATURAL RESOURCES

The occupant is allowed to collect taxes, “as far as is possible, in accordance with the rules of assessment and incidence in force … to defray the expenses of the administration of the occupied territory” (Benvenisti, 2012, 81). In other words, the occupant should not, as was seen in the film The Last Emperor, make the occupied “pay for its own occupation” as the Japanese ambassador says to the Emperor of Manchuria (Manchukuo). The occupant is also bound by the general rules regarding property of usufruct – the use of land without destroying it (Benvenisti, 2012, 77). This is relevant to the U.S. presence in Hawaiʻi as evidenced by the more than one hundred Superfund sites at Pearl Harbor alone.

NATIONALS OF THE OCCUPYING POWER

My own understanding of the law of occupation is that it strictly prohibits the “overwhelming” of the nationals of the occupied state with settlers from the occupying state, as was done by Russia to Estonia and other Baltic states. Benvenisti treads very lightly here, noting only that settlement need only avoid “impinging on the rights” of the citizens of the occupied state. It is possible (though I donʻt mean to hastily accuse him) that his status as an Israeli influences this light treatment of settlers, and he does mention Israel, the West Bank and Gaza in the very short section on this topic (Benvenisti, 2012, 106-107).

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The Burden of Proof

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”

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The Race for Nationhood

There’s something happening here.

What it is ain’t exactly clear. 

Buffalo Springfield

I began to notice a little over a year ago that there was a kind of “race” on for nationhood – that is, for the kind of nation we as Hawaiians would be(come). At that time I was beginning to hear the whispers of a new strategy, post-Akaka and Inouye, for Federal Recognition through the executive branch. This was a race in itself, as Obama’s term was seen as the deadline for any action on Federal Recognition (although as the spouse of the signer of the Apology Resolution, HIlary Clinton may hold out hope for Fed Rec). But I also noticed an uptick in progress on the independence front, mainly in the work led by Keanu Sai. And it is this race between these two mutually exclusive forms of sovereignty that I focus on in this post.

This week, we hear of major developments on both fronts. This came from OHA in a joint statement by Board chair Collette Machado and CEO Kamanaʻopono Crabbe, ostensibly showing their unified stance after Crabbe’s memo to the State Department that seemed to indicate a preference for independence:

OHA’s top leadership also applauded the Obama Administration for reaffirming the special political relationship between the federal government and the Native Hawaiian people. The federal government is considering whether to take administrative action on reestablishing a government-to-government relationship with Native Hawaiians.
 “For decades, OHA and other Native Hawaiian organizations and individuals have advocated for the creation of a pathway to reestablish a formal government-to-government relationship with the United States, and to protect existing Hawaiian rights, programs, and resources,” said Machado and Crabbe.
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“Prerule” on Dept. of Interior action facilitating “government-to-government” status for the Hawaiian “community” (via Trisha Kehau Watson)

On the independence front, we hear that the Geneva Academy of International Humanitarian Law will list Hawaiʻi in its War Report for 2013 as an occupied state (state is used here as in “nation-state” or country). The 2012 War Report listed nine “belligerent occupations,” i.e., occupations by warring states. Hawaiʻi is considered in this view as being occupied belligerently because it was a neutral country being pulled into the Spanish-American War in 1898. Other occupations in 2012 included:
Azerbaijan by Armenia; Cyprus by Turkey; Eritrea by Ethiopia; Georgia by Russia; Lebanon by Israel; Moldova by Russia; Palestine by Israel; Syria by Israel; and Western Sahara by Morocco (hawaiiankingdom.org/blog).
While a seemingly academic report, because the Academy is based in Geneva, it will certainly be read by United Nations officials, and thus has the potential to change the dialog on Hawaiʻi’s status. The video discusses the 2012 Report, but is instructive in terms of the agenda (or lack thereof) of its assemblers.
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It is possible that the Obama Administration’s sudden interest stems from the growing knowledge of the idea of occupation, and possibly even from the report itself. It is in this sense that I use the term “race” – a (probably unwitting) contest between two mutually exclusive approaches to nationhood, the stakes of which could well leave a permanent mark on the direction of Hawaiʻi’s status under national and international law.
The War Report is available from Oxford University Press for £39.99.

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Press Release: Hawaiian Kingdom Deposits Instrument of Accession to the Jurisdiction of the International Criminal Court with the United Nations Secretary-General in New York

Hawaiians have had dealings with the UN for many years, but what is important about this development, similar to the UN Permanent Court of Arbitration proceedings in 1999-2001, is that this filing was accepted under the provision reserved for “non-[UN] member states” – i.e., reserved for states. This is the status that Palestine was granted a few weeks ago by vote of the general assembly, and is de facto recognition of sovereign status. Disclaimer: this is how it was described to me with ample evidence of the veracity of the statements. Sai was interviewed on South-South News in October, a United Nation’s news outlet, and I have given a presentation at TEDx Mānoa regarding this issue.

For Immediate Release – December 10, 2012
Contact: David Keanu Sai, Ph.D.

E-mail: interiorhk@hawaiiankingdom.org

David Keanu Sai, Ph.D.

NEW YORK, December 10, 2012 — This afternoon the Ambassador-at-large and Agent for the acting Government of the Hawaiian Kingdom, H.E. David Keanu Sai, Ph.D., filed with the United Nations Secretary General in New York an instrument of accession acceding to the jurisdiction of the International Criminal Court (ICC). The ICC is a permanent and independent tribunal in The Hague, Netherlands, that prosecutes individuals for genocide, crimes against humanity and war crimes. The ICC only prosecutes individuals and not States.

The instrument of accession was deposited with the United Nations Secretary-General in accordance with Article 125(3) of the ICC Rome Statute, which provides, “This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.” The instrument of accession was received and acknowledged by Mrs. Bernadette Mutirende of the United Nations Treaty Section, Office of Legal Affairs, at 380 Madison Avenue, New York.

By acceeding to the ICC Rome Statute, the Hawaiian Kingdom, as a State, accepted the exercise of the ICC’s jurisdiction over war crimes committed within its territory by its own nationals as well as war crimes committed by nationals of States that are not State Parties to the ICC Rome Statute, such as the United States of America. According to Article 13 of the ICC Rome Statute, the Court may exercise its jurisdiction if a situation is referred to the ICC’s Prosecutor by the Hawaiian Kingdom who is now a State Party by accession.

The current situation in the Hawaiian Islands arises out of the prolonged and illegal occupation of the entire territory of the Hawaiian Kingdom by the United States of America since the Spanish-American War on August 12, 1898, and the failure on the part of the United States of America to establish a direct system of administering the laws of the Hawaiian Kingdom. The United States disguised its occupation of the Hawaiian Kingdom as if a treaty of cession annexed the Hawaiian Islands. There is no treaty.

On August 10, 2012 a Protest and Demand of the prolonged occupation of the Hawaiian Kingdom, being a non-Member State of the United Nations, was deposited with the President of the United Nations General Assembly pursuant to Article 35(2) of the United Nations Charter. The Protest and Demand was acknowledged and received by Mrs. Hanifa Mezoui, Ph.D., Special Coordinator, Third Committee and Civil Society, Office of the President of the Sixty-Sixth Session of the General Assembly.

Hanifa Mezoui, Ph.D. – Office of the President of the General Assembly, United Nations

Individuals of the State of Hawai‘i government who have committed a war crimehave been reported to the United States Pacific Command and the United Nations Human Rights Commission in Geneva, Switzerland, for deliberately denying a fair and regular trial to Defendants, irrespective of nationality, and with the Hawaiian Kingdom’s accession to the jurisdiction of the ICC, these alleged war criminals will now come under the prosecutorial authority of the Prosecutor of the ICC.

Regarding the occupation of Hawaiian territory, the ICC is authorized under the Rome Statute to prosecute individuals for:

• war crime of destruction and appropriation of property;

• war crime of denying a fair trial;

• war crime of unlawful deportation and transfer of persons to another State;

• war crime of unlawful confinement;

• the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies;

• war crime of destroying protected objects dedicated to religion, education, art, science or charitable purposes, historic monuments;

• war crime of destroying or seizing the property of the Occupied State;

• war crime of compelling participation in military operations;

• war crime of outrages upon personal dignity;

• war crime of displacing civilians.

H.E. David Keanu Sai, Ph.D. represented the acting Government of the Hawaiian Kingdom in arbitral proceedings before the Permanent Court of Arbitration, Larsen v. Hawaiian Kingdom, (119 International Law Reports 566), at The Hague, Netherlands, and also did an interview with South-South News, a news agencey of the United Nations, regarding the prolonged occupation of the Hawaiian Kingdom.

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The Overthrow

One hundred and nineteen years ago, the Hawaiian Kingdom was overthrown. Queen Lili‘uokalani began her reign on Jan 29. 1891. Concerns at the start of her reign included the Bayonet Constitution, internal political struggles and the McKinley Tariff. When Lili‘uokalani ascended the throne, she was forced to pledge an oath of allegiance to the Bayonet Constitution. This meant that the monarch was unable to accomplish any act without the cabinet’s or the legislature’s approval. The monarch’s greatest power was the ability to appoint cabinet members.

Queen Lili’uokalani

But internal political dissention made it difficult for Lili‘uokalani to select and keep an ideal cabinet. As the queen put it in her 1897 book Hawaiiʻs Story, “The legislature, instead of creating legislation to benefit the people, spent its time in the making and unmaking of cabinets.” The parties involved included the Reform Party, the National Reform Party, and the Liberal Party

The Reform party was also known as the downtown party, or the missionary party. It consisted of sugar businessmen. A key figure was Lorrin Thurston, whose agenda was to maintain control of the government and achieve annexation to the US.

The key figure in the National reform party was the new Queen, Lydia Kamaka‘eha Lili‘uokalani. Her agenda was to maintain Hawaiian independence, change the constitution, and to govern via careful and irreproachable means, so as not to provide the foreign presence in Hawai‘i any justification for calling for assistance from their home countries, which could lead to an overthrow.

Finally, the Liberal party’s key figure was Robert Kalanihiapo Wilcox, one of the young Hawaiians educated in Italy under the guardianship of Celso Cesar Moreno. His agenda was to maintain Hawaiian independence by not acknowledging the validity of the Bayonet Constitution. Further, he planned to take back control of government through more “liberal” means. This group, which included anti-annexation activist Joseph Nawahï, eventually advocated a Native Hawaiian-controlled republic.

The queen consulted with the anti-annexation political party Hui Kalaʻāina to ask the members of the group to draft a new constitution.  Lili’uokalani told the group to hold on to the document until further notice.  After Lili’uokalaniʻs alliance between the Reform Party and Wilcox’s Liberal Party, she decided it was time for a new cabinet.  The Queen wanted to restore some measure of native rule that was lost in the Bayonet Constitution.

US Marines in Hawai’i, January 1893

As Queen Lili‘uokalani was about to promulgate a new constitution (to replace the “Bayonet Constitution” forced on her brother King Kalakaua in 1887, which gave foreigners the right to vote), non-Hawaiian business leaders, most connected with the sugar industry, overthrew the Queen with the aid of US Marines. On January 16th, 1893, the day that Queen Lili‘u was to instate a new constitution, John L. Stevens had the sailors and marines of the USS Boston land at Honolulu harbor and take up quarters in the yard of Arion Hall, in direct view of ʻIolani palace. The Marines acted at the request of Stevens, US Minister to the Kingdom of Hawai‘i, but without the knowledge or authorization of Congress or the President.

Lorrin Thurston

The next day, January 17th 1893, the conspirators read a proclamation declaring that the “Hawaiian monarchical system of government is hereby abrogated,” at the back door of Aliʻiolani Hale, the government building. Henry Cooper read this proclamation to “no one in particular” according to Tom Coffman– there was no crowd present to hear the proclamation. The oligarchy proclaimed itself a provisional government, elected Sanford B. Dole President, and Stevens immediately recognized this government as the “de facto government of the Hawaiian Islands.” De facto  means “in fact” as opposed to de jure, meaning “in law.”

Lili’uokalani’s statement read:

I, Liliʻuokalani, 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 and collision of armed forces, and perhaps the loss f life, I do, under this protest and impelled by the said forces yield my authority until such time as the government of the United States shall, upon the facts presented to it, undo the acts of its representative, and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

Liliʻuokalani yielded, as Kamehameha III had fifty years earlier, under protest to “the superior force of the United States of America, until such time as the Government of the United States should undo the action of its representatives.” The provisional government then proceeded to lobby the US Congress to annex Hawaii. Their aim was to become a territory, thereby avoiding foreign tariffs on sugar. In March 1893 Grover Cleveland replaced Harrison as President, and withdrew the treaty of annexation from the Senate.

President Cleveland opposed the annexation of Hawai‘i and the overthrow. Cleveland sent Senator James Blount to investigate the events of 1893. Blount was flooded with testimonies from numerous parties; the largest majority of whom were Hawaiians.

The Provisional Government wined and dined Blount, because he was the one who could justify their actions. Blount did not meet a single annexationist willing to put the question of annexation to a vote of the people. After collecting weeks of testimony from both sides of the issue, Blount produced one of the most scathing critiques of US foreign policy in American history. Blount’s 1400-page document recommended that the Provisional Government step down, and that Lili‘uokalani be restored to her rightful position as the monarch of the Hawaiian Kingdom.

On the basis of this report Cleveland pushed for reinstatement of Queen Lili‘uokalani. In his address to Congress, Cleveland stated: “In an act of war a friendly and confiding people has been overthrown, a substantial wrong has thus been done which we should endeavor to repair.” Congress, however, was mainly pro-annexation, and this led to a standoff for the next five years between Congress and the President over the issue of annexing Hawai’i. The Blount report was excerpted in newspapers across the United States, striking up a national debate over imperialism. Cleveland’s message to Congress strongly advised restoring the throne and government to Lili’uokalani.

Meanwhile passage of the Wilson-Gorman Tariff in 1894 repealed the McKinley Tariff, and replaced Hawai‘i sugar growers in the privileged competitive position with regard to US sugar sales.In Cleveland’s message to Congress he stated: “By an act of war, the government of a friendly and confiding people has thus been overthrown. A substantial wrong has been done that we should endeavor to repair.” President Cleveland was accused by some of restoring monarchy and “stamping out republicanism,” an ironic move for an American President. Others in the US supported Cleveland’s position.

In response to Clevelandʻs recommendation to Congress, however, the Provisional Government, on July 4, 1894, declared itself to be the Republic of Hawaii, claiming that the US had no right to interfere in its domestic affairs. According to Noenoe Silva, the Republic of Hawai’i was created in 1894 by “about 4000 men, most of foreign birth, [who] signed the oath and voted in the election.” Hawaiians protested to the US and other countries over this process, claiming that “confident in the honesty and impartiality of America, [had] patiently and peacefully submitted to the insults and tyranny of the Provisional Government.”

When the Republic of Hawai’i planned to proclaim itself on July 4, 1894 – a date meant to signify a transition from monarchy to republican government – Hawaiians were “outraged” (Silva, 2004, 137). On July 2, between 5000 and 7000 people rallied at Palace square to protest the formation of the Republic. This rally was never reported in any of the standard history books. In January 1895, Robert Wilcox planned a second “counter-revolution,” this time against the Republic of Hawaii. The plan was discovered, and the counter-revolutionaries were chased through the mountains behind Honolulu. A soldier on each side was killed. Two hundred were captured and tried for treason against the Republic.

Capitano Robert Wilcox

Some of the captured counter-revolutionaries were sentenced to death. These death sentences were used as a threat by the Republic to persuade Liliʻuokalani to abdicate, or surrender, her position as queen (as opposed to head of state). US officials sent a message to the Republic that no executions should occur, but the Republic allowed Liliʻuokalani to continue to believe that the executions would still be carried out, and under this impression she abdicated her throne. Lili’uokalani was arrested for “misprision of treason” – an antiquated, or out-of-date charge that meant knowledge of treason. She was imprisoned in ʻIolani palace for eight months. She was pardoned in 1896, and immediately traveled to the US to lobby against the annexation treaty. In Washington, Lili‘uokalani lodged a formal protest with the US State Department.

The Provisional Government declared itself an American protectorate after eight days.  According to a statement of Hawaiian Patriotic League: “But eight days had not elapsed before the loyalty, fidelity and patriotism of the incongruous, discordant crowd, who supported the provisional government manifested itself by dissensions running riot, to such a point that the only manner of saving the new order was to implore Mr. Stevens for a declaration of American protectorate.”

The United States sent out diplomatic statements, which, as historian Ralph Kuykendall notes, notified other countries that the US considered Hawai‘I as in its sphere of influence, and that “it would patrol the orchard.” Five years after the overthrow, with a new president in office, the US again attempted annexation, but in a way that was doubly illegal, and as I will argue in a future column, very unlikely.

President William McKinley

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