Court of the Conqueror Writes Another Legal Fiction
April 20, 2009 · No Comments
By J. Kēhaulani Kauanui, Ph.D.
On March 31, 2009, the Supreme Court of the United States (S.C.O.T.U.S.) issued its ruling in the case of State of Hawaii v. Office of Hawaiian Affairs, et al. The state of Hawai‘i asked the high court whether or not the state has the authority to sell, exchange, or transfer 1.2 million acres of land formerly held by the Hawaiian monarchy as Crown and Government Lands. Prior to the state’s appeal to the S.C.O.T.U.S., the State Supreme Court unanimously ruled that the state should keep the land trust intact until Kanaka Maoli (indigenous Hawaiian) claims to these lands are settled, and prohibited the state from selling or otherwise disposing of the properties to private parties; it did so based on a 1993 Apology Resolution issued by Congress to the Hawaiian people. The S.C.O.T.U.S. reversed the judgment of the Hawai‘i Supreme Court and remanded the case for further proceedings with the stipulation that the outcome not be inconsistent with the U.S. Supreme Court’s opinion.
The contested land base constitutes 29 percent of the total land area of what is now known as the State of Hawaii and almost all the land claimed by the State as “public lands.” These lands were unilaterally claimed by the U.S. federal government when it unilaterally annexed the Hawaiian Islands through a Joint Resolution by the U.S. Congress in 1898, after they had been “ceded” by the Republic of Hawai‘i, which had established itself a year after the armed and unlawful overthrow of the Hawaiian monarchy under Queen Lili‘uokalani in 1893. These are the same lands mentioned in the 1993 Apology Resolution in which Congress acknowledged and apologized for the United States’ complicity in the overthrow in violation of bilateral treaties with the Hawaiian Kingdom and international law. The Apology also affirmed, “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, either through their monarchy or through a plebiscite or referendum.”
The S.C.O.T.U.S. ruled as they did to legitimize the theft of the Hawaiian Islands through the 1893 Overthrow of the Hawaiian Kingdom and the unilateral annexation of 1898 through the Newlands Resolution passed by Congress. The Court claims that Pursuant to the Newlands Resolution, the Republic of Hawaii “ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind” and provided that provided that all “property and rights” in the so-called ceded lands are “vested in the United States of America.” This is a legal fiction to cover up the fact that the U.S. government accepted the stolen lands from the Republic of Hawaii government that confiscated these lands after the overthrow of the Hawaiian Kingdom. The Republic of Hawaii could not have ceded these lands in “absolute fee” to the United States because they were stolen. The U.S. government accepted the stolen goods and cannot prove title because they were stolen without Hawaiian people’s consent and without compensation.
The ruling serves to shore up the U.S. government’s rampant criminality and to tie up all loose threads that could implicate the USA in an international case. In other words, this is a preemptive move to foreclose the possibility of restoring the Hawaiian nation under international law. The Court insists that the Apology does not change the legal landscape or restructure the rights and obligations of the State. The ruling states, the Apology would “raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the union.” The Court further opined that “Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.”
If the Apology Resolution has no teeth in the court of the conqueror, then how is it that the Newlands Resolution that unilaterally annexed Hawai`i does? The court could not dismiss the Apology on grounds that it was a joint resolution of Congress (rather than a treaty of annexation, or even an act of Congress) because it would have to declare the Newlands Resolution impotent. Instead, the justices did some grammatical back flips and focused instead on six verbs in the preambular “whereas” clauses that made various observations about Hawaii’s history, which they found have no legal bite: acknowledges, recognizes, commends, apologizes, expresses, and urges. Of course, the Court also cited the disclaimer at the end of the Resolution—no surprise there since the U.S. government’s apology is like a “no fault” apology—carefully crafted in order to preclude restitution of the Hawaiian nation and appropriate reparations after recognizing Hawaii’s full sovereignty.
Unfortunately the trustees of the Office of Hawaiian Affairs—elected by all of Hawaii’s registered voters, not just Kanaka Maoli – were in on it. It’s important to note what is hidden in the name of the case that went before the S.C.O.T.U.S., State of Hawaii v. Office of Hawaiian Affairs, et al., since the “et al” (meaning “and others”) includes four individual Kānaka Maoli. One of them is Dr. Jonathan Kamakawiwo‘ole Osorio—associate professor at the Kamakakūokalani Center for Hawaiian Studies, University of Hawai‘i at Mānoa, and author of Dismembering Lāhui: A History of the Hawaiian Nation to 1887. He is an original plaintiff in the case who sued the state to prevent the sale of these lands and was a defendant in the appeal to the Supreme Court. When I interviewed Osorio for my public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” he specified how his stake in the case is vastly different from the interests of the Office of Hawaiian Affairs, which is a state agency. Had the four individuals not been party to the lawsuit, one could have more easily surmised that this case involved collusion between the executive branch of the state government, and the Office of Hawaiian Affairs, which draws revenues from these lands. Indeed, when I heard part of the oral arguments before the S.C.O.T.U.S., the attorney chosen by the Office of Hawaiian Affairs, like the state attorney general, argued that the state of Hawai‘i has “perfect title” to the Hawaiian lands. Osorio’s argument, however, is clearly very different, “the United States has absolutely no title over these lands…they have no legal foundation.”
What lurks in the background of all of this is the question of a political settlement with Native Hawaiians. Currently, there is a federally driven bill before Congress that would reconstitute a “Native Hawaiian Government” under U.S. policy on Native Americans—The Hawaiian Reorganization Act of 2009, commonly referred to as the “Akaka bill” after its author U.S. Senator Daniel Akaka (D-HI). The U.S. government knows it does not have any legitimate title to these stolen lands. Hence, the only way the United States will ever be able to secure its claim is by constituting a Hawaiian governing entity to give up the claim to them in exchange for some sort of cash settlement. It is telling that Robin Puanani Danner, CEO and president of the Council for Native Hawaiian Advancement & Native Hawaiian Economic Alliance—a major driving force for passage of the Akaka bill—issued a statement right after the ruling and mentioned how the case relates to their proposal for a land claims settlement. Settlement is a sell-out, and the Akaka bill provides the legislative framework for that resolution.
Adopting this law would be yet another assault against the sovereignty of the Hawaiian Nation, which is why over a dozen grassroots Hawaiian organizations oppose it, including Hui Pu, and those that constitute the Hawaiian Independence Action Alliance: the Pro-Kanaka Maoli Independence Working Group, Ka Pakaukau, Komike Tribunal, H.O.N.I.(Hui o Na Ike), Ka Lei Maile Ali‘i Hawaiian Civic Club, Koani Foundation, ‘Ohana Koa, N.F.I.P. – Hawai‘i, Spiritual Nation of Kū - Hui Ea Council of Sovereigns, Living Nation, Settlers for Hawaiian Independence, M.A.N.A. (Movement For Aloha No Ka ‘Aina), as well as the Hawai`i Institute for Human Rights.
The crimes against the Hawaiian nation in 1893 and the ramifications of which continue to this day deserve careful scrutiny by an international court, not the court of the conqueror. Indeed, many Kanaka Maoli and other Kingdom heirs insist that the U.S. government submit its legal position to the Permanent Court of Arbitration for a fair and just resolution.
J. Kēhaulani Kauanui, Ph.D. is an Associate Professor of American Studies and Anthropology at Wesleyan University. She is the author of Hawaiian Blood: Colonialism and the Politics of Indigeneity and Sovereignty(Duke University Press, 2008). She is the producer and host of a public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” which airs on WESU, Middletown, CT and is syndicated on select Pacifica-affiliate stations. An audio archive of all the programs can be accessed online: www.indigenouspolitics.com.
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The proof is there, however U.S. have a way delaying and creating excuses to do the right thing. If one position don't work, they will find another that they believe. Dr. Kauanui has contributed endless work to addressing issues that impact us! Mahalo for her work!
This is not about Dr. Kauanui and there is no challenge to her endless work [Mahalo Nui] and I look forward to more from her. Please I hope we can keep to the conversation and do not let my words lead into personalities.
We just disagree on terms conquerors and overthrow, as well as if there is any point to entering the US courts. I believe entering the court is not about believing the court will uphold the law as we know that would be a shock.
For the world to understand our plight they need to see the US for what it is and no longer be swayed by sweet rhetoric. We have been thrown into the ditch [to name a few] by Earth Justice, Sierra club, Nature conservancy and Amnesty International! Why because they think we are just grumblers and want a pay day. They cannot see the genocide, because American is a land of justice.
> We have been thrown into the ditch [to name a few] by Earth Justice, Sierra club, Nature conservancy and Amnesty International!
I'm not sure how the issue applies to the others above, but Sierra Club - Hawai'i island chapter - is in the trenches with us (Mauna Kea Anaina Hou, Royal Order of Kamehameha I and myself) fighting for a "sacred" Mauna Kea, untrammeled by irresponsible and excessive telescope development.
My name is Kai Landow and I work with Aupuni Hawaii a sovereign government occupied by American military forces. We have difficulties in getting help if we do not accept the jurisdiction of the State of Hawaii. These group have refused to help us in the past and yet raise money using Hawaiian causes as the basis for fund raising. I am happy for you that you have had better results than us.
But in the end they are interested in American based causes only
I believe J. Kēhaulani Kauanui, Ph.D misreads Justice Alito's opinion. I have read it a few times and it seems to only suggest that the reliance on the Apology resolution to find a cloud on the title of the Crown lands was mistaken. The preamble to the opinion which has only one holding in it [The Apology res. has no effect]; includes this passage.
In 1893, “[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.”
So-called, active assistance and replaced! seems more a question to title than a reinforcement or codification. Many of us thought that the Apology resolution had no such effect. We read the debates in congress and have seen courts rule based on the congressional record that Sen. Inouye claimed it did not change any legal standing. So no surprise there. So has the professor given up on the idea of Hawaiians [ I don't know who she believes the people are who were and are the subjects of the Hawaiian Kingdom specifically] challenging the State of Hawaii in court.
In the end this was a State agency verses State of Hawaii legal action and does not effect claims by Hawaiian nationals. It was a vain attempt to trick the SCOTUS into ruling that the State had perfect title to the Crown lands. Which is why OHA argued in agreement with the State. I was also at the court and they didn't buy it.
I think we should go to any court we can assert ourselves, I agree with Professor Mathew Craven and we must exhaust remedy in the US first.
The best remedy really is Lokahi and leave no doubt what the people want and will accept. The return of all the lands!
Aloha kaua e Kai but conquer can mean "to acquire by force of arms; win in war." So far they have been winning a war against the people as well as the war for land. It can also mean "to overcome by force; subdue" and they have subdued some of our people AND some of our land.
Some people use words and know its meaning while others disagree with their use. Dr. Kauanui (PhD) is one person who knows what she is talking about and is entitled to her opinion.
The crimes against the Hawaiian nation in 1893 and the ramifications of which continue to this day deserve careful scrutiny by an international court
I also happen to agree with her. I would not exhaust remedies in the U.S. and I would not test the constitutionality of it in the U.S. The U.S. is not just, fair, and/or reasonable to everyone including to Hawaiians. As for lokahi... lokahi works IF both parties agree. Sorry but the Feds do not want to lokahi. They want money so in this case I don't see lokahi working. Greed and corruption yes... but lokahi no.
Instead I would focus on the international front like how Dr Kauanui (PhD) advocates... and I would add other tangents/avenues as back-up but resolve it in the U.S.? It is not the sole place I would want these issues to be resolved in because the U.S. has shown that it is not fair, reasonable, and just to PEOPLE.
Yes conquer does mean war and Liliuokalani took great pains to assure there was no state of war between US and Hawaii so as to not give them standing to claim possession. I think we need to remove the illusion of american jurist prudence to go on. I have never advocated given the sole judgement over this matter to the americans. But I have spoken with people from the Hague and they would find it easier to rule for us when we have exhausted US remedy.
as for Lokahi I meant in terms of within the Hawaiian Nation and not particularly with the Feds.
Dr. Kauanui has the degree and what do I know. It's just my layman's opinion.
Try reread the opinion and see if they have quashed any claims! let me know what you think?
Aloha kaua e Kai but some people fight over the use of "colonized." Everyone picks and chooses what words they use. For example some oiwi use "Hawaiian" while others use "kanaka" or "oiwi." Some do not want other Hawaiians to use the word "colonized" but IMHO to try to dictate to other Hawaiians what to say and/or how to say it is hypocritically acting like oppressors themselves.
As far as Dr. Kauanui (PhD) though I graduated from college I do not place much value in a college education and am biased when it comes to intellectuals because what have college degrees done in the last 30 YEARS to help Hawaiians? WE (kakou/collectively) are WORSE off than WE have EVER been so no offense to intellectuals but I don't place too much hope in college degrees. There are some exceptions whom I won't name since some of them do not want me to name them but there are SOME intellectuals who use their college degrees to help others as well as help themselves but I am the LAST person to be impressed by college degrees.
However Dr. Kauanui (PhD) has been consistently pro-oiwi and pro-Hawaiian Kingdom irrelevant of her education. I cannot knock her for that and I understand that you may disagree with her but she is still pro-oiwi. THAT is more important to me than a college degree. (Yes college degrees can help but in my experience it helps the holder more than it helps other people (i.e. kakou) so I am biased.)
Not sure what your history with her is exactly but I am the last person to be impressed by a college degree. Like my Hilo Grandma used to say, "SO????" LOL However Dr. Kauanui (PhD) is pro-oiwi and has been consistently. Kudos to her for that. Kudos to you too. Both of you have valid points. Irrelevant of college degrees.
As for lokahi... I'm not sure what your history is with her but perhaps if you asked her who is she with... well perhaps she represents herself and/or her kupuna. Some people do not necessarily "belong" and/or associate with anyone and/or with any "group." She may be one of those people so when others ask her who is she with... some people see that as an insult lol Just my mana'o but it's like asking... "Who are YOU???" albeit in a rude (mahaoi) way which may imply, "Who do YOU think YOU are?" When asked that or a question implies that... some people see that as an insult lol then respond with an equal and opposite reaction....
Not sure if you have the same experience but in my experience she is a cool person.
I have a "Professional" disagreement with Dr. Kauanui and I do not in any way discourage her from continuing to support and speak out for the O'iwi. I applaud her and any one who brings out knowledge of the injustice ongoing here in Hawaii. More is always better. I have very little history with her and through a process of questioning my friends have be come more focused.
Who do you think you are is a familiar question and I don't mind it ever being asked. So I am just hoping that Dr. Kauanui will take a little time to look at our position and give it some consideration.
Whether or not she is a "cool" person is not the question before us. How are we going to end American occupation and have them release our lands to us, is more important to me.
I differ to my friend below who has made the argument for the US court action and I hope that differing opinions do not create personal rifts.
Replies
This is not about Dr. Kauanui and there is no challenge to her endless work [Mahalo Nui] and I look forward to more from her. Please I hope we can keep to the conversation and do not let my words lead into personalities.
We just disagree on terms conquerors and overthrow, as well as if there is any point to entering the US courts. I believe entering the court is not about believing the court will uphold the law as we know that would be a shock.
For the world to understand our plight they need to see the US for what it is and no longer be swayed by sweet rhetoric. We have been thrown into the ditch [to name a few] by Earth Justice, Sierra club, Nature conservancy and Amnesty International! Why because they think we are just grumblers and want a pay day. They cannot see the genocide, because American is a land of justice.
Aloha Kai
I'm not sure how the issue applies to the others above, but Sierra Club - Hawai'i island chapter - is in the trenches with us (Mauna Kea Anaina Hou, Royal Order of Kamehameha I and myself) fighting for a "sacred" Mauna Kea, untrammeled by irresponsible and excessive telescope development.
ku
My name is Kai Landow and I work with Aupuni Hawaii a sovereign government occupied by American military forces. We have difficulties in getting help if we do not accept the jurisdiction of the State of Hawaii. These group have refused to help us in the past and yet raise money using Hawaiian causes as the basis for fund raising. I am happy for you that you have had better results than us.
But in the end they are interested in American based causes only
I believe J. Kēhaulani Kauanui, Ph.D misreads Justice Alito's opinion. I have read it a few times and it seems to only suggest that the reliance on the Apology resolution to find a cloud on the title of the Crown lands was mistaken. The preamble to the opinion which has only one holding in it [The Apology res. has no effect]; includes this passage.
In 1893, “[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.”
So-called, active assistance and replaced! seems more a question to title than a reinforcement or codification. Many of us thought that the Apology resolution had no such effect. We read the debates in congress and have seen courts rule based on the congressional record that Sen. Inouye claimed it did not change any legal standing. So no surprise there. So has the professor given up on the idea of Hawaiians [ I don't know who she believes the people are who were and are the subjects of the Hawaiian Kingdom specifically] challenging the State of Hawaii in court.
In the end this was a State agency verses State of Hawaii legal action and does not effect claims by Hawaiian nationals. It was a vain attempt to trick the SCOTUS into ruling that the State had perfect title to the Crown lands. Which is why OHA argued in agreement with the State. I was also at the court and they didn't buy it.
I think we should go to any court we can assert ourselves, I agree with Professor Mathew Craven and we must exhaust remedy in the US first.
The best remedy really is Lokahi and leave no doubt what the people want and will accept. The return of all the lands!
Aloha Ka Kou
Kai
Some people use words and know its meaning while others disagree with their use. Dr. Kauanui (PhD) is one person who knows what she is talking about and is entitled to her opinion.
The crimes against the Hawaiian nation in 1893 and the ramifications of which continue to this day deserve careful scrutiny by an international court
I also happen to agree with her. I would not exhaust remedies in the U.S. and I would not test the constitutionality of it in the U.S. The U.S. is not just, fair, and/or reasonable to everyone including to Hawaiians. As for lokahi... lokahi works IF both parties agree. Sorry but the Feds do not want to lokahi. They want money so in this case I don't see lokahi working. Greed and corruption yes... but lokahi no.
Instead I would focus on the international front like how Dr Kauanui (PhD) advocates... and I would add other tangents/avenues as back-up but resolve it in the U.S.? It is not the sole place I would want these issues to be resolved in because the U.S. has shown that it is not fair, reasonable, and just to PEOPLE.
Malama ~~ Lana
as for Lokahi I meant in terms of within the Hawaiian Nation and not particularly with the Feds.
Dr. Kauanui has the degree and what do I know. It's just my layman's opinion.
Try reread the opinion and see if they have quashed any claims! let me know what you think?
Malama Kai
As far as Dr. Kauanui (PhD) though I graduated from college I do not place much value in a college education and am biased when it comes to intellectuals because what have college degrees done in the last 30 YEARS to help Hawaiians? WE (kakou/collectively) are WORSE off than WE have EVER been so no offense to intellectuals but I don't place too much hope in college degrees. There are some exceptions whom I won't name since some of them do not want me to name them but there are SOME intellectuals who use their college degrees to help others as well as help themselves but I am the LAST person to be impressed by college degrees.
However Dr. Kauanui (PhD) has been consistently pro-oiwi and pro-Hawaiian Kingdom irrelevant of her education. I cannot knock her for that and I understand that you may disagree with her but she is still pro-oiwi. THAT is more important to me than a college degree. (Yes college degrees can help but in my experience it helps the holder more than it helps other people (i.e. kakou) so I am biased.)
Not sure what your history with her is exactly but I am the last person to be impressed by a college degree. Like my Hilo Grandma used to say, "SO????" LOL However Dr. Kauanui (PhD) is pro-oiwi and has been consistently. Kudos to her for that. Kudos to you too. Both of you have valid points. Irrelevant of college degrees.
As for lokahi... I'm not sure what your history is with her but perhaps if you asked her who is she with... well perhaps she represents herself and/or her kupuna. Some people do not necessarily "belong" and/or associate with anyone and/or with any "group." She may be one of those people so when others ask her who is she with... some people see that as an insult lol Just my mana'o but it's like asking... "Who are YOU???" albeit in a rude (mahaoi) way which may imply, "Who do YOU think YOU are?" When asked that or a question implies that... some people see that as an insult lol then respond with an equal and opposite reaction....
Not sure if you have the same experience but in my experience she is a cool person.
Malama, Lana
I have a "Professional" disagreement with Dr. Kauanui and I do not in any way discourage her from continuing to support and speak out for the O'iwi. I applaud her and any one who brings out knowledge of the injustice ongoing here in Hawaii. More is always better. I have very little history with her and through a process of questioning my friends have be come more focused.
Who do you think you are is a familiar question and I don't mind it ever being asked. So I am just hoping that Dr. Kauanui will take a little time to look at our position and give it some consideration.
Whether or not she is a "cool" person is not the question before us. How are we going to end American occupation and have them release our lands to us, is more important to me.
I differ to my friend below who has made the argument for the US court action and I hope that differing opinions do not create personal rifts.
Malama Kai
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