Yesterday, I took my Intro to Political Science students to the Hawaiʻi State Capitol district for a tour of the legislature. A press conference started up while we were there celebrating the falling through of the deal for NextEra to buy HECO. While we were waiting, I finally got a chance to see with my own eyes what Iʻd heard about: the changing of the dates on the statue of Queen Liliʻuokalani. The plaque on the statue reads “Queen of Hawaiʻi” and used to read “1891-1893” but now reads “1891 – 1917!” Letʻs think this through: the new dates are certainly not her birth and death, she was born in 1838, and definitely became Queen in 1891. So the new dates can only signify her reign – after all theyʻre preceded by “Queen of Hawaiʻi…”
Liliʻuokalani statue, July 19, 2016
This means that while State legislators in the press conference waxed on about the future of energy in “our state”,the statue they were facing clearly implies that no such state exists. There was no overthrow in 1917. The death of a monarch does not signify the death of sovereignty – thatʻs what the phrase “the King is dead, long live the king” is about – the continuation of sovereignty despite the death of “the sovereign.” So the only possible interpretation is that the overthrow was a non-event, and therefore did not legally take place. Hawaiʻi’s recognition of Japan on January 18th, 1893 also suggests this interpretation, as does Liliʻuokalani’s claim in her autobiography that “In December, 1893 the United States still regarded me as the head of state.”
According to a reliable source
– I havenʻt verified this yet – Governor Ige Abercrombie presided over the ceremony in 2013 to change the dates on the statue. A strict interpretation of this fact (if, indeed it is a fact) is that the State of Hawaiʻi formally recognizes the overthrow as invalid. Iʻll be back when I get this last bit verified.
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”
After decades of “negotiations,” OHA and the State have reached an agreement over the revenue from the so-called “Ceded lands.” (See my article from the Hawaiʻi Independent: Making Sense of the Ceded Lands: An Historical Assessment for an overview of these lands). There are a couple of ways to look at this settlement – one “inside” and one “outside.” Jon Osorio alluded to this in his article anticipating the settlement. An inside view looks at it from the perspective of OHA and other state insiders. From this perspective, the settlement has potential. The $200 million value of the lands may underestimate the potential value of these lands, as they are downtown and waterfront. It settles a long-standing claim for Hawaiians without affecting future claims, either to further revenue or to sovereignty itself (this is Abercrombie in his liberal mode – an article in a Big Issand newspaper questions which Abercrombie weʻre seeing at different moments). $200 million increases OHAs net worth by approximately 50% (a little more actually). Itʻs been said that OHA is now being forced into the role of land manager, but that began years ago with the acquisitions of Waimea Valley and Waokeleopuna on Hawaiʻi Island, a fact that seems to have been left out of the discourse surrounding this settlement. In my view, OHA, as the de facto (if not de jure) Hawaiian government should have land as a primary asset – after all, to be Hawaiian is to be of this land. While more radical Hawaiians make very valid arguments as to OHAʻs authority, and the fact that this is a transfer, basically, from the state to itself, the mainstream Hawaiians are moving ahead. In their view these are real gains for Hawaiians.
However, there is another view, which Iʻm calling “outside” only in the sense that most of those who hold them are outside of the corridors of power. In this view, OHAʻs legitimacy is undermined not just by the illegality of the overthrow itself, but of the US governmentʻs own recognition of this illegality. Some point out that the lands granted are, first of all, backfill. They are not a part of the original island of Oʻahu. One not-too-radical group called it “a dump.” Even Richard Fassler noted the environmental problems with the site, the costs of cleanup, and how the state is likely glad to be rid of it.
The bigger issue for outsiders is the giving up of the claim itself. Claims are always a tricky matter. In New Zealand, for instance, the question has arisen as to whether the settlement of claims ever actually satisfies the claim. Many Maori say claims are never fully satisfied. And that may be the case here – certainly it is the case for future claims, but considering that Hawaiʻi Courts already awarded OHA billions in revenue (which was never paid), it is hard to argue that $200 million settles it. It is, as with many such things, not least the Akaka Bill, better than nothing. And nothing is what Hawaiians have had for decades (under the Democrats, it should be noted) – nothing but a claim.