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May 13, 2008 Aloha mai kakou (greetings): The recent activities of certain individuals calling themselves the "Hawaiian Kingdom government" who temporarily took control of the `Iolani Palace grounds have caused an overwhelming number of emails to our account, voicing support, abhorrence, as well as honest inquiries. The writers of these emails have mistakenly assumed that these individuals are part of the acting Government of the Hawaiian Kingdom. Therefore, in order to remedy this confusion and misunderstandings we feel the need to make the following statement. The individuals calling themselves the "Hawaiian Kingdom government" are not in any way affiliated with the acting government of the Hawaiian Kingdom. The acting Government of the Hawaiian Kingdom was established in 1995 to provisionally represent the Hawaiian state, which has been a subject of international law since being recognized in 1843. The acting Government of the Hawaiian Kingdom was established not as a permanent legal entity, but rather as a provisional government under the principle of "necessity." This is the norm in cases of occupation. Due to the fact of occupation, acting governments do not and cannot represent the nationals of an occupied state. It can provisionally represent only the state, which is the subject of international law. Thus the term "acting" and not "permanent." Under the principle of necessity, the acting Government of the Hawaiian Kingdom must adhere strictly to the constitution and laws of the Hawaiian Kingdom as it stood prior to the landing of the U.S. troops on 16 January 1893. These laws of the Hawaiian Kingdom are those that existed before the bayonet constitution of 1887, which was the start of the revolution that eventually caused the illegal landing of United States troops in 1893. Any failure to strictly adhere to the legal order could result in legal liability. If the acting Government of the Hawaiian Kingdom fails to do so, it could stand trial for the willful violation of Hawaiian law when the government is lawfully restored. An acting government is very limited in what it may and may not do. Recognized doctrine on necessity (Mitchell and Other v. Director of Public Prosecutions and Another [1986] L.R.C. 35, 88-89) provides the following limitations and the authority of an acting government:
As a matter of international law, a law between independent states, the sovereignty of the Hawaiian Kingdom was not extinguished when the United States unilaterally seized the Hawaiian Islands by a Congressional joint resolution during the Spanish-American War. Since then, Congressional legislation have been imposed in Hawai`i without first acquiring Hawai`i's sovereignty by either a treaty of cession or conquest. In fact, there were two attempts by the U.S. to acquire Hawai`i's sovereignty by treaties of cession, the first signed on February 14, 1893 and the other on June 16, 1897. The first treaty failed as a result of a Presidential investigation into the illegal overthrow of the Hawaiian Kingdom government, and the second failed as a result of protests by the late Queen Lili`uokalani and loyal Hawaiian subjects. Since 1898, the United States has treated the Hawaiian Islands as if it were annexed by cession and made a part of its territory. The notion that an independent state's sovereignty can be acquired by enacting a legislative joint resolution is to also believe in the idea that the British Parliament today could enact a British statute annexing the United States in order to reestablish the thirteen colonies. The legislation of every country has no legal effect beyond its own territory. Not only did the Hawaiian Kingdom have over ninety legations (embassies) and consulates throughout the world in 1893, it had a legation in Washington, D.C., and consul generals in New York and San Francisco, as well as several international treaties with the United States. Hawai`i was not an American colony. Similar to the occupation of the Baltic States (Latvia, Lithuania, and Estonia) by Soviet Russia in 1940 for Russian naval access to the Baltic ports, Hawai`i, as a neutral state, was illegally occupied during the Spanish-American war for naval access to Pearl Harbor, as well as Hawai`i's strategic location in the middle of the Pacific ocean. The situation today is governed by the international laws of occupation whereby the United States, as the occupying state, is mandated to administer the laws of the Hawaiian Kingdom, the occupied state. The fact that the U.S. has not complied with international law does not render international law void, but rather persuasive evidence of the violation itself. The organization calling itself the Hawaiian Kingdom Government, organized themselves without any basis in Hawaiian constitutional law. This is a very dangerous game to play, no matter how honest the intent, because it could be a violation of Hawaiian law itself and the international law of occupation. Other groups, as well, have also drawn up their own constitutions without first understanding the foundation of Hawaiian Kingdom constitutional and statutory law. Amnesia of Hawaiian state sovereignty, as a matter of international law, and Hawaiian Kingdom laws have become so pervasive that colonization and decolonization, as social and political theories, have dominated the scholarly work of lawyers, political scientists and activists regarding Hawai`i. This theoretical framework wrongly assumes that native Hawaiians are an indigenous group of people with a right to self-determination, rather than the majority of the citizenry of an already existing sovereign, but occupied, state. The acting Government of the Hawaiian Kingdom is not part of the sovereignty movement or in any way affiliated with the worldwide indigenous peoples movement and self-determination. It operates on the legal presumption that Hawaiian sovereignty remains vested in the Hawaiian state, and therefore does not seek the de facto or de jure recognition of its sovereignty. Therefore, the acting Government of the Hawaiian Kingdom does not promote or support secession from the United States, because there exists no evidence of cession of Hawaiian sovereignty to the United States in the first place. Rather, Hawai`i was occupied by the United States for military purposes—a legal situation somewhat like the German occupation of Luxembourg and the Soviet occupation of the Baltic states during World War II, or the current United States occupation of Iraq. Regarding claims by individuals to the Hawaiian Throne, it is a matter and subject of Hawaiian Kingdom constitutional law and does not depend on who may have the genealogy of certain Hawaiian chiefs. In 1917, Queen Lili`uokalani died without a proclaimed successor to the throne. The situation was similar to when King Kamehameha V died on December 11, 1872, and King Lunalilo on February 3, 1874. In those cases, the legislature was convened to "elect by ballot some native Ali`i of the Kingdom as Successor to the Throne," in accordance with Article 22 of the 1864 constitution. Because an election has not taken place since the death of Queen Lili`uokalani, the only way of establishing an acting government under the doctrine of necessity would be through a Council of Regency, which is established under Article 33. A Regent is not a monarch, and, by definition, temporarily serves in the absence of a Monarch. Our purpose is to educate Hawai`i and the world community as to the legal history of the Hawaiian Kingdom, the international law of occupation, and its profound impact it has today on law, politics and the economy. After returning from international arbitral proceedings in the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration, The Hague, Netherlands, and the filing of the Hawaiian Complaint at the United Nations Security Council on July 5, 2001, the acting Council of Regency decided that I should pursue a Ph.D. in Political Science at the University of Hawai`i at Manoa to continue to expose the legal and political history of the Hawaiian Kingdom, the international arbitration proceedings, and the complaint filed with the United Nations Security Council. By entering graduate studies, it was thought that I should further develop my skills in international law and politics, as well as Hawaiian Kingdom constitutional and administrative law. Political Science teaches the foundations of international relations, political theory, and public law. The acting Government of the Hawaiian Kingdom also retained Professor Matthew Craven, Dean of the University of London (SOAS) Law Department, in 2002 to do a legal brief on whether or not the sovereignty of the Hawaiian Kingdom was extinguished by the United States. He found no evidence of extinguishment. I have taught courses, both at the undergraduate and graduate levels, on these topics under the disciplines of Political Science, Anthropology and Hawaiian Studies, and others have also been teaching these topics in the same departments as well as the Department of Geography. In 2003, the Hawaiian Society of Law & Politics was established as a student organization at the University of Hawai`i at Manoa to "promote the development of curriculum on the subject of Hawaiian statehood under international law for the University of Hawai`i." The Society has successfully put on two academic symposiums and publishes the Hawaiian Journal of Law & Politics. Kamehameha Publishing will publish a book with five select articles from volumes 1 and 2 of the Hawaiian Journal of Law & Politics, which will include my article titled "American Occupation of the Hawaiian State: A Century Unchecked." I plan to complete my Ph.D. in the Fall '08 on the topic of the continued existence of the Hawaiian Kingdom, and the role of Hawaiian constitutional and administrative law and the international law of occupation. I will also have my first and part of my last chapter of my dissertation published in an article titled, "A Slippery Path Towards Hawaiian Indigeneity: An Analysis and Comparison between Hawaiian State Sovereignty and Hawaiian Indigeneity and its Use and Practice in Hawai`i Today," in the Journal of Law and Social Challenges (San Francisco School of Law), vol. 10, Fall '08. It is the acting government's hope that this information will clear up any misunderstandings and confusion as it works diligently to expose the illegality of the occupation of the Hawaiian Kingdom and then to ultimately bring it to an end within the framework of recognized international laws as they apply to existing sovereign states. To do this, education is crucial if not foundational. Me ka 'oia'i'o (Sincerely), David Keanu Sai, Ph.D. Candidate (Political Science) Chairman of the Council of Regency |
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Occupation of Palace Area Invigorates Native Hawaiian Movement
By JANIS L. MAGIN
HONOLULU — A Native Hawaiian independence group laid claim this week to the nation’s only royal palace and the state land surrounding it, raising anew the issue of self-determination for the islands’ native people.
Several dozen people from the group, the little-known Hawaiian Kingdom Government, were at the Iolani Palace grounds in downtown Honolulu on Friday, two days after locking the public out for several hours. On Thursday, the palace, which is also a museum where tours are given, reopened without incident.
The group believes it has the right to take back from the government more than one million acres in the Hawaiian Islands it claims were illegally seized during the overthrow of the Hawaiian monarchy in 1893, 11 years after the palace was built.
“We are here; we’re not going to go,” said the group’s leader, Mahealani Kahau, who had a security detail of a half-dozen men surrounding her Friday on a corner of the lawn behind the palace where they had erected a tent. Ms. Kahau said members of her group planned to return to the 11-acre palace complex, a public park abutting the Hawaii Capitol, every day except Saturdays and Sundays.
As many as a dozen groups promote independence for Hawaii’s native population, but each has a different view on how to achieve self-determination.
In 2000 the United States Supreme Court, ruling in Rice v. Cayetano, found unconstitutional the restriction that only Native Hawaiians could vote in the statewide election for the nine trustees of the state Office of Hawaiian Affairs, the agency charged with administering programs that benefit Native Hawaiians.
The decision appeared to re-energize the various sovereignty movements, but failed to unite them.
“That’s one of the major problems, even among those who are for independence,” said Kekuni Blaisdell, a retired doctor who has been involved in the Native Hawaiian independence movement for 24 years and coordinates a network of independence groups. “We lack unity, and we realize that.”
The groups disagree over several issues, including proposed federal legislation that would give federal recognition to the estimated 400,000 Native Hawaiians in the United States.
A version of the bill passed the House in October, but has not been scheduled for a vote in the Senate. It has the support of both of Hawaii’s United States senators, as well as Gov. Linda Lingle, a Republican, and the Office of Hawaiian Affairs.
Four years ago, the office began a heavily publicized campaign — called Kau Inoa, or Place Your Name — to register everyone of Hawaiian ancestry in the nation.
Hawaiian Kingdom Government and some other Native Hawaiian groups view the Office of Hawaiian Affairs as an arm of a state government they do not recognize. They also part ways with the office on the issue of ceded lands, more than 1.2 million acres in crown lands that were ceded to the federal government when the United States annexed the republic of Hawaii in 1898. The land passed to state control when Hawaii was admitted to the union in 1959.
In mid-January, the state reached a $200 million settlement with the Office of Hawaiian Affairs that would transfer control of 209 acres on Oahu and the Big Island to the office. But the Legislature rejected the deal, and the state has agreed to renegotiate.
On Jan. 31, the Hawaii Supreme Court ruled that the state could not sell or transfer any ceded lands “until such time as the unrelinquished claims of the Native Hawaiians have been resolved.”
Hawaii’s attorney general, Mark J. Bennett, said the state filed an appeal with the United States Supreme Court on Tuesday. The state argues that the 1959 Admission Act granting Hawaii statehood gave the state the right to manage and sell those lands.
But some sovereignty groups, including Ms. Kahau’s, believe those lands still belong to Native Hawaiians. Ms. Kahau and members of her organization met on Monday morning with Kippen de Alba Chu, executive director of the Friends of Iolani Palace, which manages the historic palace, to also lay claim to the state archives building adjacent to the palace. In the past, Mr. Chu said, the group has served his office with eviction notices.
The Friends of Iolani Palace leases space in the archives building from the State Department of Land and Natural Resources, which manages the palace grounds.
Ms. Kahau said the Hawaiian Kingdom Government, which has created government ministries and claims to have registered several thousand Native Hawaiians and non-Hawaiians as its “citizens,” plans to move its operations from a small leased office on the edge of downtown to the palace grounds whether or not it is successful in gaining access to the archives building.
“The building doesn’t make us the Hawaiian kingdom,” she said. “It’s us who makes it.”