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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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Response to Ian Lind: Sovereignty groups no laughing matter

This is my response to Ian Lind’s article in Civil Beat “Some Laughable Royalty Claims.” It was posted in the Hawaiʻi Independent on Feb 27, 2014. Lind responded to this directly, and I responded in turn (ending the debate, if I may say so) with my article “The Lind-Perkins Debate: The Hawaiian Sovereignty Movement is Based in Historical and Legal Fact, not Faith” which was also in the Hawaiʻi Independent.

Civil Beat’s decision to publish journalist and blogger Ian Lind’s article on “Laughable Royalty Claims” was certainly influenced by the racially-charged climate around Representative Faye Hanohano and the incident at Kalama Park on Maui. I have long respected Lind as a journalist, but he is, in this case, simply out of his depth. I will show that even more than in the other cases, Lind’s mockery of sovereignty groups who claim to be the legitimate government misses the historical and political context that drives these groups.

First, my credentials. As I tell my students, it’s not merely what is said, but who says it that matters. I encourage them to look for credibility and neutrality. I am not a crackpot. I have a master’s degree in government from Harvard and a PhD in Political Science from UH Mānoa. I have been a Hawaiian history teacher for fourteen years in public and private schools. I teach political science in the University of Hawaiʻi system. Consequently, I have the background necessary to put Lind’s statements in perspective.

Lind gives us all permission to laugh at the actions of groups such as Reinstated Hawaiian Kingdom (also known as the Lawful Hawaiian Government) and others. His support for the laughability of their claims comes from recent rulings by the Hawaiʻi Supreme Court. This line of thinking comes from, at best, a Federal recognition mentality in which Hawaiians must ask permission to act on their claims, and at worst from a passive acceptance of the political status quo. It also ignores the historical sequence of events that led us here. When Office of Hawaiian Affairs Trustee Peter Apo (himself an advocate of Federal recognition) spoke to my Hawaiʻi Politics class last week, he said that Hawaiians’ historical grievances must be addressed eventually. “You can feel the tension” in the Hawaiian community, he said. It is this tension that drives groups such as those Lind names to simply take the reins and establish governments, with or without (usually without) permission.

While he acknowledges that there are “other more mainstream sovereignty initiatives,” Lind does not name any, and his blog iLind.com deals mainly with media and mainstream politics, not sovereignty. We are left to assume he is referring to the Native Hawaiian Roll Commission and its Kanaʻiolowalu initiative, which I have written about, and is itself highly problematic. One leader curiously not mentioned is Keanu Sai. Lind states that “only when a sovereign Hawaiian governing entity is recognized in the local, national and international arenas will it be granted the appropriate legal deference. Today, no group is able to claim such recognition.” Sai’s Acting Hawaiian Kingdom, however, argued a case in the Permanent Court of Arbitration in the World Court in 2000. This is tacit recognition of Hawaiʻi’s continued sovereign status from an international entitity, rather than from the Hawaiʻi State Supreme Court, which cannot be expected to rule against its own credibility. Sai went on to get a PhD in Political Science based on the argument that Hawaiʻi remains a sovereign nation. On his dissertation committee were the dean of UH Law School (credibility) and the dean of the School of Law at one of the colleges of the University of London (neutrality).

The idea has been slowly, but steadily, growing that Hawaiʻi remains sovereign even though its government was, as Lind put it, “overthrown.” Putting quotes around the overthrow and neglecting the most credible initiatives for the recognition of sovereignty shows a complete lack of understanding of the history of the Hawaiian nation. Lind can probably be forgiven for this lack. A professor in the UH Mānoa History Department once told me that there had seemed, in the past, to be an effort to “do in” Hawaiian history as a field, an effort that trickled down to create a lack of curriculum materials for Hawaiian history at the lower levels.

Annexation 101

After the US-backed overthrow of Queen Liliʻuokalani, and President Cleveland’s agreement to reinstate her in 1893, five years of stalemate passed between Congress (the majority of whom wanted annexation) and the President (who said the Provisional Government was “self proclaimed” and “owed its existence to an armed invasion”). The annexationist William McKinley’s election was not enough to allow for the passage of a treaty of annexation, and after the Spanish-American War “annexation” was asserted through a mere Joint Resolution, which has little legal force in the US and none outside it.

This fact has driven sovereignty groups to act on the “inherent sovereignty” that was recognized in the 1993 Apology Resolution. Lind’s note that the Hawaiʻi Supreme Court has stated that “To date, no sovereign native Hawaiian entity has been recognized by the United States and the State of Hawaii,” shows no grasp of this history. It  has also led some foreign countries to question Hawaiʻi’s legal status. In 2011, China challenged then-Secretary of State Hillary Clinton to prove whether the US held jurisdiction to Hawaiʻi. What is implicated is that Hawaiʻi is under occupation. As Cambridge University international legal theorist James Crawford explains,

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.

What we have, then, are governments “claiming to represent the occupied State,” but whose claims are not deemed credible by all. While it may be true that “their claims … are conflicting and overlapping,” their attempts to restore the government of Hawaiʻi – universally recognized as having been illegally overthrown – are no laughing matter.

Sources: JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 34 (2nd ed., 2006).

IAN LIND, SOME LAUGHABLE ROYALTY CLAIMS. CIVIL BEAT http://www.civilbeat.com/posts/2014/02/26/21292-hawaii-monitor-some-laughable-royalty-claims/

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121 Years Later – the Overthrow and the Way Forward

Today is the 121st anniversary of the overthrow of the Hawaiian monarchy. On January 17th, 2012, the Honolulu Star Advertiser and other media completely neglected the date. On that day, a post on my upstart little blog got nearly 400 views and the umiverse went on to have 20,000 in the following two years. We need to remember these anniversaries, but at the same time, we need to chart a course forward, as well as look back to the recent past for signs of progress. In this post, I give a very brief review of the events of the overthrow and look to the future by looking at the recent past.

On January 16th, 1893, the day that Queen Lili‘uokalani was to proclaim a new constitution, John L. Stevens ordered the sailors and marines of the USS Boston to 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 A. Thurston, 1892

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 (1998) – 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 of 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.

President Grover Cleveland negotiated an agreement with the deposed Queen, which established the US intent to reinstate her. Later, Cleveland did recognize the Republic of Hawaiʻi, the successor to the government he called “self-proclaimed,” but later said he was “shamed of the whole affair.” Keanu Sai, however, has used the “Liliʻuokalani Assignment” (the assignment of her authority to Cleveland) to assert that US policy is already one of reinstatement of the monarch and that the matter is simply one of compliance. Simple compliance, not decolonization or nation-building. He has attempted to show (convincingly in my opinion) that the responsibility for such compliance lies with successive Presidents, all the way to the current President.

One hundred and twenty-one years is a long time, or not, depending on one’s view. It is much longer than any other occupation has gone on (although the statute of limitations apparently for occupations to become legitimate is about 200 years). But it is a very short time compared to the movement to reinstate the state of Israel.

One question we should ask is: has there been any progress in the past 20 years since the events of 1993 – the march on ʻIolani Palace and the Apology Resolution? In 1993, there was only an infant Hawaiian Immersion program. The Center for Hawaiian Studies at UH Mānoa did not have its own facility. There were no Hawaiian-focused charter schools – now there are 17.

Noelani Goodyear-Kaʻōpua’s book describes the Hawaiian-focused charter school movement.

There were no master’s degrees in Hawaiian Studies or ʻOlelo Hawaiʻi – now there are three degrees, with 50 students in the UHM program. There is even a Hawaiian college, Halau Wanana, now called Kahoʻiwai. Hawaiʻi had not been represented before the World Court (International Court of Arbitration). And, perhaps most importantly, there was no movement for food sovereignty, or nearly as many loʻi kalo opened as there are now.

If a society is like a pyramid, with governance being the pinnacle, and the hard work of economy, education and health care being the foundation, it is as if Hawaiians wanted the pinnacle without a base, and have now intuitively moved into the hard work of building that foundation. As Niklaus Schweitzer (1999) has stated, “the Hawaiian movement is evolutionary rather than revolutionary,” and we continue to build the foundations of a nation, whatever its ultimate form, within the framework and constraints of the present system.

SOURCES:

Coffman, T. (1998) Nation Within: The Story of America’s Annexation to the United States. Kaneʻohe, HI: Epicenter.

Schweitzer, N. (1999) Turning Tide: The Ebb and Flow of Hawaiian Nationality. Berne: Peter Lang.

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Kanaʻiolowalu

This is a short piece on Kanaʻiolowalu that I was asked by students to write. Iʻve begun updating and expanding it (I had a restrictive word limit) for a more knowledgable audience – the original was much more neutral.

Former Governor John Waiheʻe III and commissioner Naʻalehu Anthony came to Kamehameha last month to encourage students to sign up for Kanaʻiolowalu if they turn 18 years old by February, 2014. This process has its opponents, but what’s confusing about this is that the opposing view undermines all of the assumptions upon which Kanaʻiolowalu is based. So what are these underlying issues? And what is Kanaʻiolowalu really about?

First: the name. Naʻi means to conquer, but Olowalu, while it may refer to “a sound similar to that of waves lapping up on the shore that is lined with pebbles; that rustling sound of the movement of the water through the many pebbles,” it also refers to a well-known site on Maui where a famous massacre took place (the FAQ section of the organization’s website does not mention this). The massacre, in which Captain Metcalf slaughtered about 50 innocent Hawaiians outside Lahaina, was known as “the spilled brains” (Kamakau, 1992). For this reason, the choice of the name Kanaʻiolowalu is very strange indeed.

Second: the process. Kanaʻiolowalu, a project of the Native Hawaiian Roll Commission, is just the latest version of a roll leading to a constitutional convention (remember Hā Hawaiʻi?), such as those taken of Native American tribal nations during the organization of tribes into federally-recognized nations. When the Cherokee leaders initiated their roll process, by the way, they were aware they were committing treason.

A page of the Cherokee roll – many non-Cherokee signed, while some Cherokee abstained.

Simply put, the process would create an electorate that would vote for delegates to a constitutional convention for a “Hawaiian nation.” The unknown factor at this point is whether this Hawaiian nation would be federally recognized, independent, or merely recognized by the State of Hawaiʻi.

Kanaʻiolowalu was created by Act 195 of the Hawaiʻi State Legislature, which provides that “the Native Hawaiian people are hereby recognized as the only indigenous, aboriginal, maoli people of Hawai‘i.” This is only recognition by the State of Hawaiʻi, not Federal recognition. According to some, State recognition can be used as a basis for later Federal recognition. By amending State law, after a year and $10 million of OHA money, Kanaʻiolowalu was able to fold the names from the Kau Inoa drive into their list, pushing the total names from about 13,000 to 107,000. A few have opted off the list, since Kau Inoa had an ostensibly different purpose from Kanaʻiolowalu. Reopening the list added another 10,000, bringing the total close to 120,000.

The development of a fully-sovereign, independent government through this process is highly unlikely, if not impossible. If for no other reason, it is nearly impossible simply because the process itself recognizes American jurisdiction over Hawaiʻi. It all comes down to the question of annexation – this is the primary assumption about which there is disagreement. If annexation in 1898 was illegal, as many Hawaiians claim it was, then the State of Hawaiʻi cannot facilitate a process of “sovereignty,” since its very existence is the problem that blocks sovereignty. [See my debate with Civil Beat journalist Ian Lind for more details]. This may sound extreme to some, but the 1993 Federal Apology Resolution stated that “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States.” On the other hand, if annexation was legal, then there is no basis for independence except through international law – not State or Federal law.

There are no models for a “State-within-a-state,” so it is difficult to imagine what this government would look like. Federal recognition will not come through the Akaka Bill – not because Akaka resigned from the US Senate, but because Senator Inouye is not there to shepherd the bill along. There is some talk of Federal recognition being achieved directly through the executive branch. This process has been used by some Native American tribes (perhaps the majority), but there seems to be a hiatus on this method. Part of the problem here is that of defining Hawaiians as a people within a Native American framework. Senator Inouye said once at an Akaka Bill hearing, completely out of any historical context, that “it is interesting to note that when Captain Cook arrived in Hawaiʻi, he called the Hawaiians ʻIndians.'”

Another issue that needs to be resolved is whether non-participation in Kanaʻiolowalu permanently disqualifies those who opt out and all their descendants, as was the case for Cherokee. Whether one believes in the process or not, it is hard to deny that, if successful, the governing entity it creates will have access to resources. Scholarships, loans and lands are potentially at stake, whether the governing entity is “legitimately” created or not. We were then confronted with the “warning” from OHA, as Trisha Kehaulani Watson pointed out in December, a public notice of theirs stated:

Native Hawaiians who choose not to be included on the official roll risk waiving their right, and the right of their children and descendents to be legally and politically acknowledged as Native Hawaiians and to participate in a future convention to reorganize the Hawaiian nation … and as a result may also be excluded from being granted rights of inclusion (citizenship), rights of participation (voting) and rights to potential benefits that may come with citizenship (e.g., land use rights, monetary payments, scholarship, etc.).

This is a serious flaw, and very likely a human rights violation. As the activist Laulani Teale pointed out to me, the United Nations’ Universal Declaration of Human Rights states in Article 15 that “No one shall be arbitrarily deprived of his nationality.” This is precisely what the Kanaʻiolowalu process does.

 In essence, Kanaʻiolowalu is being portrayed as simply a voter registration drive. But the issues underlying it are serious as they deal with Hawaiʻi’s political status.  All of these questions concern our understandings and interpretations of Hawaiian history, and it is there that the answers lie. Do not assume that leaders know more of the history than you do – many know less. It is up to each one of us to grapple with these questions ourselves and reach conclusions on our own terms.

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The Politico-economic Context of Sovereignty by Chip Berlet

Originally a comment on my post below The World System: Sovereignty in Context, this post comes from Chip Berlet, former Senior Research Analyst at Political Research Associates, who is also one of the foremost experts on far right-wing extremist groups. It continues the discussion on sovereignty on the umiverse:

While I agree with both the economic and political analysis of Umiʻs post, the actual practice of sovereignty is complex, and very much related to how elites manage financial and monetary policies to defend the state in some of its aspects while looting other states and even the state in which they are technically based. The rise of a trans-national corporate elite complicates this even more.

Two major forces are doing battle in the current election cycle. Neoliberal trans-national imperialist elites versus business nationalist unilaterialist elites. Most of the advisors to whom President Obama is listening are in the former, as is Mitt Romney. Obama is moderate liberal supporting neoliberal trans-national corporate and financial services power while Romney is a moderate conservative supporting neoliberal trans-national corporate and financial services power.

The right-wing of the Republican Party is composed of a pack of business nationalist unilateralist elites who are willing to use naked racism and xenophobia to garner votes—in a coalition with social traditionalists who want to police gender roles and defend heteropatriarchy.

Chip Berlet

Depending on which faction has power, there are shifts in terms of how U.S. sovereignty is performed. How money is allowed to cross borders, how people are allowed to cross borders, and how the state is allowed to cross borders to enforce so-called “state interests” all are in a constant fluctuating tension.

See Arnie Saiki’s and Kyle Kajihiro’s responses here to my original post, What is Sovereignty?

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What is Sovereignty?

Many people read my blog post on the overthrow of the Hawaiian Kingdom, so I thought Iʻd follow up with a piece on sovereignty. It is descriptive rather than advocacy. Hawaiians and Indigenous peoples have more than one definition of sovereignty. The concept of inherent sovereignty is not clearly elucidated, but essentially refers to the baseline status of being a defined people – a nation. Some ascribe a spiritual dimension to sovereignty. I donʻt deny any of those claims, but I wrote this short piece for my students, and confine myself to the legalistic definition(s) of sovereignty.

Sovereignty is a status that a state achieves under international law that means “no higher authority except God.” It is a European term that eventually became the central operating principle of the international system of nation-states, or “independent states.” The system began in Europe with the treaty of Westphalia in1648. The small, feudal states of what is now Germany were constantly at war with one another, often using “pre-emptive strikes,” or attacks without provocation, to gain security by making sure that their rival would not strike first. This state of affairs was very brutal and the states agreed to create a system that allowed for the respect of each stateÿs sovereignty. Over the centuries more and more states joined this loose system of co-equal (legally, but not necessarily militarily equal) sovereigns.

Originally the term sovereign referred to the King or monarch of a state, who literally embodied the stateÿs sovereignty, that is, their actual physical body represented the sovereign status of the state that they governed. As changes such as the Magna Carta, and the French and American revolutions brought new forms of government, such as constitutional monarchy and republics, the concept of sovereignty remained.

Black’s Law Dictionary defines sovereignty this way:

The supreme, absolute, and uncontrollable power by which any independent state is govern; supreme political authority; paramount control of the constitution and frame of government and its administration; self sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.

Black’s Law Dictionary 4th Edition (1951) page 1568.

Sovereignty vs. Government

While sovereignty is a status that a nation achieves under international law, government is the “organ” that exercises the stateÿs sovereignty. In other words, while sovereignty is the concept or idea that a nation is independent, its government is the body that can act on this sovereign status. Thus, while governments can be overthrown, sovereignty does not necessarily cease when this happens.

The International system

Because there was no authority higher than a sovereign state, the system was based on recognition by other sovereign, or independent states. This system came to be called the “Family of Nations,” which is the international system still in place today. Organizations such as the United Nations, or the older League of Nations, are international organizations — they are not world governments, but consist of states that are recognized within this system.

International law is the law that applies to sovereign states. More precisely, it is the law that exists between (rather than within) these states. Thus, only states, not individuals or groups of people, are subjects of international law.

International law provides some protection to states within the system. These include the duty of non-intervention, which prohibits states from intervening in each otherÿs internal affairs.

This is the system and the protections that Kauikeaouli understood and sought to gain entry into in 1843, and is the basis of the undisputed claim that Hawaii was a fully sovereign state in the nineteenth century.

While Native American tribal nations are called sovereign, based on their independence from the US federal government in the eighteenth century, these entities are not part of the international system. From an international legal perspective, they are semi-autonomous entities within the sovereign United States of America. These nations do not have representatives in the United Nations because of this.

The “Akaka Bill,” or Native Hawaiian Governmental Reorganization Act of 1999 – 2006, was an attempt to gain a similar semi-autonomous status within the US Federal system, and not an attempt to achieve sovereignty in the international system.

Senator Daniel Akaka, author of the Akaka Bill

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Sovereign Sunday

Yesterday was my tenth or eleventh Sovereign Sunday, and I’ve watched its decline with disappointment. About eighty people mulled around our “our” side of the ‘Iolani Palace grounds, while the Reinstated Kingdom of Hawai’i, whose numbers also seem to have dwindled held a louder, and more vibrant gathering which, from my perspective, was mainly a Hawaiian music concert. I saw one of my dissertation committee members, Ty Kawika Tengan, and mentioned how I’d thought of writing a blog entry about the day, but that it was basically a non-event. He observed what I’d often noticed about the palace – the Sovereignty factions coalescing, people milling around the very impressive and inspiring Ku’e petition boards (1800 of them, each with the name of a signatory of the 1898 petitions against annexation), and tourists wandering around photographic the palace as if we weren’t there. Even the governor took his weekend walk through the grounds with his bodyguards. Last year, newly-appointed head of the Department of Natural Resources (DLNR, which manages the so-called ceded lands, including the Palace) Bill Aila noted that he wasn’t there at the gathering because he had to be, but because he wanted to be. It was something like the state of the movement.

Ku'e petition exhibit at 'Iolani Palace

When Kamehameha or OHA puts out the word, thousands show up, but this is mainly when the trusts are under threat. Hawaiians can agree on what they oppose – losing what little they have. But the extent of support for something more is unclear. Even though Hawaiians voted in 1996 to pursue some form of sovereignty, talking to people in the community provides unclear feedback. We all run in fairly small circles and think they comprise the world. My students are mainly happy with the way things are now, but they don’t pay bills. Most Hawaiians are quiet about their views. At my daughter’s Hawaiian immersion school, nearly all the parents said they were there for “the Lahui” (the nation), but they aren’t representative either.

There was a lack of promotion of the event, which undoubtedly hurt attendance. Also, many Hawaiians are engaged at a much more grassroots level in work that builds the bricks of nation without the glamor of being at the top of the pyramid – education, health, economics. People are also surviving – everyone with kids was several hours late.

There were no speeches or music, just quiet discussion. Sovereign Sunday remains important symbolically – the grassroots work is more significant in the long run – but symbols are what we live by. Ultimately “sovereignty” itself is largely symbolic – many feel that the gains sovereignty could bring can be accomplished under the current structure. But symbols hold sway over people’s aspirations and actions – they inspire them in ways that defy explanation.

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