The U.S. Department of Interior in Violation of International Law

The only way that the Department of Interior can have authority to hold hearings in the territory of the Hawaiian Kingdom, being a foreign State, is to first show that the Department of Justice, through its Office of Legal Counsel, has answered Dr. Crabbe’s question “Does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?” in the negative. Until then, the Department of Interior is violating the basic principle of international law, whereby governments have the obligation and duty to not intervene in the internal affairs of another sovereign independent State, which is precisely what the United States did in 1893.

There is a common misunderstanding that the United States federal government can enter the territory of other countries unfettered. Governments, which are the physical machineries of sovereign States, have omnipotent authority within their own territorial limits, and range from constitutional governments to totalitarian regimes. But when governments deal with other foreign countries their actions are regulated by international law, which includes treaties (agreements) and customary international law.

The United States federal government was established in 1789 with three branches of government called the Executive (President), Legislative (Congress) and Judicial (Supreme Court) branches. Of the three branches, the President alone is responsible for the enforcement of the laws that Congress has enacted as well as international laws that bind the United States abroad. To carry out this duty, the President has departments and agencies, which serve as the administrative arm of the Presidency.

In 1789 there were only three departments under the President: the Department of Foreign Affairs, which later in the same year was changed to the Department of State; the Department of the Treasury; and the Department of War, which was later changed to the Department of Defense in 1949. Today there exists twelve additional departments: Department of Justice (est. 1870), Department of Agriculture (est. 1862), Department of Commerce (est. 1903), Department of Labor (est. 1913), Department of Health and Human Services (est. 1953), Department of Housing and Urban Development (est. 1965), Department of Transportation (est. 1966), Department of Energy (est. 1977), Department of Education (est. 1980), Department of Veteran Affairs (est. 1989), Department of Homeland Security (est. 2002), and the Department of Interior (est. 1849).

Each department has a specific role and function under the President’s authority and duty to enforce the law. Only the President represents the United States in foreign affairs—neither the Congress nor the Supreme Court has that authority. According to the United States Supreme Court, U.S. v. Curtiss-Wright Export Corp. (1935), there exists the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” To carry out this function, the President has the Department of State and the Department of Defense. All other departments are limited in authority to the territory and jurisdiction of the United States.

The Department of State is “responsible for international relations of the United States, equivalent to the foreign ministry of other countries,” through diplomats that include Ambassadors and Consuls. The Department of Defense is responsible for “coordinating and supervising all agencies and functions of the government concerned directly with national security and the United States Armed Forces.” Within the Executive branch, the Department of State is the lead advisor to the President on foreign policies, and the Department of Defense carries out these foreign policies if international law authorizes it, e.g. war or status of forces agreements.

As a foreign State, the Hawaiian Kingdom has dealt with the Department of State and the Department of Defense, but has never dealt with any of the other Departments because the Hawaiian Kingdom was never part of the United States, especially the Department of Interior.  The Department of Interior is responsible for the domestic affairs of the United States that included “the construction of the national capital’s water system, the colonization of freed slaves in Haiti, exploration of western wilderness, oversight of the District of Columbia jail, regulation of territorial governments, management of hospitals and universities, management of public parks, and the basic responsibilities for Indians, public lands, patents, and pensions,” which now includes Native Hawaiians.

With the recent attention surrounding the Department of the Interior’s public meetings throughout the Islands, focus is now on centering on “authority” and not “policies.” This is attributed to the education of the masses as to the legal and political history of Hawai‘i, which has drawn attention to the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe’s letter to the Secretary of State John Kerry requesting clarity as to the continued existence of the Hawaiian Kingdom as an independent and sovereign State under international law. Under the international law principle presumption of continuity, since the Hawaiian Kingdom was an independent State, which the Department of Interior and the Department of Justice admit in their joint report in 2000, international law provides that an established State is presumed to still exist until proven extinguished under international law.

According to Professor Crawford, The Creation of States in International Law (2006), p. 34, who is not only the leading authority on States, but was also the presiding arbitrator in Larsen v. Hawaiian Kingdom, “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.” So despite the illegal overthrow of the Hawaiian Kingdom government by the United States on January 17, 1893, and the prolonged occupation since the Spanish-American War in 1898, the Hawaiian Kingdom, as a State, would continue to exist even if there was no Hawaiian government. The presumption of continuity places the burden on the United States to show under international law, and not United States law, that the Hawaiian Kingdom does not continue to exist. A congressional joint resolution of annexation is not evidence that the Hawaiian Kingdom ceases to exist an independent State under international law, but rather is the evidence of the violation of international law and Hawaiian sovereignty.

In like fashion to the Department of Interior’s public meetings, a Congressional committee called the Hawaiian Commission for the creation of a territorial government was holding public meetings in Honolulu from August through September 1898. The Commission was headed by Senator Morgan and established on July 9, 1898 after President McKinley signed the joint resolution of annexation on July 7, 1898. The Hawaiian Patriotic League who was responsible for securing 21,269 signatures against annexation submitted a memorial, which was also printed in two Honolulu newspapers, one in the Hawaiian language and the other in English. The memorial stated:

WHEREAS: By memorial the people of Hawai‘i have protested against the consummation of an invasion of their political rights, and have fervently appealed to the President, the Congress and the People of the United States, to refrain from further participation in the wrongful annexation of Hawai‘i; and

WHEREAS: The Declaration of American Independence expresses that Governments derive their just powers from the consent of the governed:

THEREFORE, BE IT RESOLVED: That the representatives of a large and influential body of native Hawaiians, we solemnly pray that the constitutional government of the 16th day of January, A.D. 1893, be restored, under the protection of the United States of America.

The memorial is still relevant today and relies on the executive agreement entered into between President Cleveland and Queen Lili‘uokalani in 1893 that bound the President and his successors in office to restore the Hawaiian Kingdom government as it stood before the invasion of United States troops on January 16, 1893, and thereafter the Queen or her successors in office would grant amnesty to the insurgents and their supporters. This Agreement of Restoration is a treaty under international law and remains binding on the office of the President today.

“If they can get you asking the wrong questions, they don’t have to worry about answers.” – Thomas Pynchon, Gravity’s Rainbow

By What Authority is the U.S. Department of Interior In Hawai‘i?

JewellThe U.S. Department of Interior (DOI) will be in the Hawaiian Kingdom holding public meetings throughout the Islands from June 23 to August 8, 2014 to get responses from the Native Hawaiian community to consider reestablishing a government-to-government relationship between the United States and the Native Hawaiian community. Secretary of the Interior Sally Jewell who visited the country last year heads the DOI.

In a press release of June 18, 2014, the DOI stated, “The purpose of such a relationship would be to more effectively implement the special political and trust relationship that currently exists between the Federal government and the Native Hawaiian community. Today’s action, known as an Advanced Notice of Proposed Rulemaking (ANPRM), provides for an extensive series of public meetings and consultations in Hawaii and Indian Country to solicit comments that could help determine whether the Department develops a formal, administrative procedure for reestablishing an official government-to-government relationship with the Native Hawaiian community and if so, what that procedure should be.”

“When I met with members of the Native Hawaiian community last year during my visit to the state, I learned first-hand about Hawaii’s unique history and the importance of the special trust relationship that exists between the Federal government and the Native Hawaiian community,” said Secretary of the Interior Sally Jewell. “Through this step, 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.”

At the center of the public meetings are five “threshold questions” for the community to respond to:

  1. Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community?
  1. Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship?
  1. If so, what process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
  1. Should the Secretary instead rely on the reorganization of a Native Hawaiian government 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?
  1. 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?

The DOI stated, “Over many decades, Congress has enacted more than 150 statutes that specifically recognize and implement this trust relationship with the Native Hawaiian community, including the Hawaiian Homes Commission Act, the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act. The Native Hawaiian community, however, has not had a formal governing entity since the overthrow of the Kingdom of Hawaii in 1893. In 1993, Congress enacted the Apology Resolution which offered an apology to Native Hawaiians on behalf of the United States for its role in the overthrow and committed the U.S. government to a process of reconciliation. In 2000, the Department of the Interior and the Department of Justice jointly issued a report on the reconciliation process that identified self-determination for Native Hawaiians under Federal law as their leading recommendation.”

A careful review of the joint report by the DOI and the Department of Justice, the report acknowledges that the Hawaiian Kingdom was a recognized sovereign and independent State. “The United States clearly viewed the Kingdom of Hawai‘i as an independent nation as evidenced by the negotiation and signing of several treaties (p. 22).” The report also acknowledges President Cleveland’s withdrawal of the first treaty of annexation entered into with the so-called provisional government and President Harrison’s administration; the subsequent investigation, which concluded the provisional government was self-proclaimed and that the United States was responsible for the illegal overthrow of the Hawaiian government; and the executive agreement between the Queen and the President whereby the U.S. would restore the government and the Queen to grant amnesty.  “President Cleveland did not desire, nor did he have the support of Congress, to engage United States military forces to declare war against the American citizens who controlled the Provisional Government (p. 28).” This was an act of non-compliance to the agreement of restoration, which allowed the insurgents to maintain unlawful control.

The report also acknowledges the failure of the second treaty of annexation entered into between the insurgency, calling themselves the Republic of Hawai‘i, and President McKinley, which resulted in Congress passing a joint resolution instead. The reported stated:

“With the election of President McKinley in 1896, the pro-annexation forces gained strength. The Republic of Hawai‘i continued to push for annexation although many Native Hawaiians were opposed. In September 1897, the “Petition against the Annexation of Hawaii Submitted to the U.S. Senate in 1897 by the Hawaiian Patriotic League of the Hawaiian Islands”, expressed the views of Native Hawaiians. The petition, signed by 21,169 people (more than half of the Native Hawaiian population) from Kaua‘i, Maui, Hawai‘i, Moloka‘i, O‘ahu, Lana‘i, and Kaho‘olawe provides evidence that Native Hawaiians were against annexation and wanted independence under a Monarchy (p. 29).”

“Consistent with the wishes expressed by Native Hawaiians, the Treaty of Annexation failed to pass the United States Senate by a two-thirds majority vote. However, by 1898, with the outbreak of the Spanish-American War in both the Pacific and Caribbean, the Newlands Joint Resolution of Annexation (Annexation Resolution) was offered by the pro-annexation forces and passed by a simple majority of the United States Senate and House of Representatives, thus becoming the instrument used to effect the annexation of the Republic of Hawai‘i. The constitutionality of the use of a Joint Resolution in lieu of a Treaty to annex Hawai‘i was a contentious issue at the time (p. 30).”

From this point the report continues a narrative of historical events to the present day that “assumes” the joint resolution of annexation extinguished the Hawaiian Kingdom as an independent and sovereign State. To support this erroneous position, the report restates a section of the 1993 Apology resolution, “Whereas the Newlands [Annexation] Resolution effected the transaction between the Republic of Hawai‘i and the United States Government (p. 30).” This resolution is problematic on two points: first, as an act of Congress the resolution has no effect beyond United States territory; and, second, the Republic of Hawai‘i was not a government, but self-declared, which the Apology resolution admitted.

What the report conveniently omits is the conclusion of the Department of Justice’s Office of Legal Counsel opinion on the “Newlands [Annexation] Resolution” in its 1988 Opinion “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea.”  Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. The Opinion states that the “clearest source of constitutional power to acquire territory is the treaty making power (p. 247).” When it came to Hawai‘i, however, Kmiec had a difficult time explaining how the Congress could acquire territory by a joint resolution. Kmiec referenced a U.S. constitutional scholar, Professor Willoughby, who stated:

“The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but is was denied that this might be done by a simple legislative act… Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted (p. 252).”

After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded, “It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea (p. 252).” There has been no followup opinion from the Department of Justice’s Office of Legal Counsel since 1988 that qualified how Congressional legislation could annex foreign territory. If the Department of Justice was unclear as to which constitutional power Congress exercised in 1898 when it purported to have annexed Hawaiian territory by joint resolution, it should still be unclear as to how Congress “has enacted more than 150 statutes that specifically recognize and implement this trust relationship with the Native Hawaiian community, including the Hawaiian Homes Commission Act, the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act” stated in its press release.

It is clear that the Department of Justice had this information since 1988, but for obvious reasons did not cite that opinion in its joint report with the DOI that covered the portion on annexation (p. 26-30). To do so, would have completely undermined all the statutes the Congress has enacted for Hawai‘i, which would also include the lawful authority of the State of Hawai‘i government itself since it was created by an Act of Congress in 1959.

This was precisely the significance of the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe’s questions to Secretary of State John Kerry. Without any evidence that the United States extinguished the Hawaiian Kingdom as an independent and sovereign State under international law, the Hawaiian Kingdom is presumed to still be in existence and therefore under an illegal and prolonged occupation.

So before the “five threshold questions that will be the subject of the forthcoming public meetings regarding whether the Federal Government should reestablish a government-to-government relationship with the Native Hawaiian community” can be answered by the community, the only question that should be posed to the DOI at the public meetings is:

“Since the Department of Justice’s Office of Legal Counsel did not respond with evidence to the Office of Hawaiian Affairs CEO Dr. Kamana‘opono’s questions dated May 5, 2014 that the Hawaiian Kingdom does not exist as an independent and sovereign State under international law, I have to presume the Hawaiian Kingdom continues to exist. Therefore, my question to you is by what authority is the Department of Interior claiming to be here in Hawai‘i, being a foreign sovereign and independent State, since the Department of Justice has already concluded that Congress could not have annexed the Hawaiian Islands by a joint resolution?”

Washington Post: Feds take step toward Native Hawaiian recognition

The Associate Press Reported in the Washington Post.

HONOLULU — The federal government announced Wednesday it will take a first step toward recognizing and working with a Native Hawaiian government at a time when a growing number of Hawaiians are questioning the legality of the U.S. annexation of Hawaii.

The U.S. Department of the Interior will host a series of public meetings during the next 60 days with Native Hawaiians, other members of the public and Native American tribes in the continental U.S. to discuss the complex issue, Rhea Suh, assistant secretary for policy, management and budget for the department, said during a conference call with reporters.

“This does not mean we are proposing an actual formal policy,” Suh said. “We are simply announcing that we’ll begin to have conversations with all relevant parties to help determine whether we should move forward with this process and if so, how we should do it.”

Native Hawaiians have been taking steps to form their own government, but the possibility of federal recognition and a growing sense that many Hawaiians want to pursue independence led some observers to call for a delay in the nation-building process. Kamanaopono Crabbe, the CEO of the Office of Hawaiian Affairs, suggested a delay of at least six months after questions were raised about whether the Hawaiian kingdom still exists in the eyes of the United States.

“While a rulemaking process proposed by the DOI is designed to open the door to a government-to-government relationship between the United States and our people, we see this as only one option for consideration,” Crabbe said in a statement. “The decision of whether to walk through the federal door or another will be made by delegates to a Native Hawaiian ‘aha (convention) and ultimately by our people. We are committed to keeping all doors open so our people can have a full breadth of options from which to choose what is best for themselves and everyone in Hawaii.”

Two potential steps — creating a government and seeking federal recognition — can happen at the same time, said Jessica Kershaw, a spokeswoman for the Interior Department.

Critics have said the path the federal government is pursuing is inappropriate because it appears the end goal is to incorrectly recognize Native Hawaiians as a Native American tribe. However, the federal government’s process leaves it up to Hawaiians to define themselves, and there would be discussions about whether it makes sense for Hawaiians to pursue a similar tribal designation, Suh said.

“There is nothing in this process that speaks to how the native community should be defined,” Suh said. “This process only pertains to the relationship between the U.S. government and the native Hawaiian community.”

The community meetings would start next week in Honolulu and would continue on neighboring islands.

Williamson Chang, a law professor at the University of Hawaii, believes the legal questions raised recently about whether the Kingdom of Hawaii still exists pushed the federal government into action.

“I consider Hawaii to be occupied or under a state of emergency,” Chang said. “The one thing I’m sure of is the United States does not have jurisdiction.”

A federal recognition that is similar to a tribal designation would be a step backward in the eyes of many Hawaiians, because the U.S. previously recognized the Hawaiian government as equal, not beneath, the U.S., Chang said.

“One solution could be complete independence, but I don’t think the United States would stand for that,” Chang said. “The Big Island could be spun off and become an independent nation, where Hawaiians could say they have a homeland.”

The State of Hawai‘i: A Government Neither De Facto nor De Jure

ClevelandAfter investigating the illegal overthrow of the Hawaiian Kingdom government by United States forces on January 17, 1893, President Cleveland notified the Congress on December 18, 1893, “When our Minister [diplomat] recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had in the manner above stated declared it to exist. It was neither a government de facto nor de jure (p. 453).”

Committee of Safety

The Committee of Safety was a group of thirteen insurgents that sought the protection of United States troops from the American diplomat, John Stevens, assigned to the Hawaiian Kingdom when they would declare themselves to be a provisional government. The insurgents sought protection from being apprehended for the crime of treason by law enforcement of the Hawaiian Kingdom. As soon as the Committee of Safety declared themselves to be the provisional government of the Hawaiian Kingdom, the American diplomat extended de facto recognition. De facto is a government “in fact” where it is in complete control of all governmental machinery, while de jure is a government “in law” established through the normal course of a country’s legal system. Cleveland concluded, “the Government of the Queen…was undisputed and was both the de facto and the de jure government (p. 451).” He explained to the Congress,

“That it was not in such possession of the Government property and agencies as entitled it to recognition… Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice. Accordingly, some hours after the recognition of the provisional government by the United States Minister, the palace, the barracks, and the police station, with all the military resources of the country, were delivered up by the Queen upon the representation made to her that her cause would thereafter be reviewed at Washington, and while protesting that she surrendered to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support the provisional government, and that she yielded her authority to prevent collision of armed forces and loss of life and only until such time as the United States, upon the facts being presented to it, should undo the action of its representative and reinstate her in the authority she claimed as the constitutional sovereign of the Hawaiian Islands (p. 453).”

The investigation concluded that the United States unlawfully intervened in the internal affairs of the Hawaiian Kingdom, and that its diplomat and troops were directly responsible for the illegal overthrow of the Hawaiian government. Secretary of State Walter Gresham recommended to President Cleveland that the Hawaiian government must be restored and compensation provided. This prompted executive mediation between U.S. diplomat Albert Willis and Queen Lili‘uokalani in Honolulu to settle the dispute and by exchange of notes an executive agreement, called the “Agreement of Restoration,” was concluded whereby the President committed to the restoration of the Hawaiian government and the Queen, thereafter, to grant amnesty to the insurgents.

William_McKinleyThe President, however, did not carry out the international agreements because of political wrangling in the Congress, and the insurgents renamed themselves the Republic of Hawai‘i. President Cleveland’s successor, William McKinley, after failing to acquire Hawai‘i by a treaty of cession, signed a Congressional joint resolution of annexation into United States law on July 7, 1898, and unilaterally seized the Hawaiian Islands during the Spanish-American War on August 12, 1898, which began an illegal and prolonged occupation.

The Hawaiian Kingdom had completely adopted the separation of powers doctrine since 1864 and the government separated into three branches: executive, legislative and judicial. Here is what the government would have looked like if restoration took place according to the executive agreements, as provided by Thrum’s Hawaiian Annual for the year 1893.

1893 Government Registry_Page_1

1893 Government Registry_Page_2

1893 Government Registry_Page_31893 Government Registry_Page_41893 Government Registry_Page_5

1893 Government Registry_Page_6

1893 Government Registry_Page_7

1893 Government Registry_Page_8

1893 Government Registry_Page_9

In 1900, President McKinley signed into United States law An Act To provide a government for the Territory of Hawai‘i, and transformed the so-called Republic of Hawai‘i into the Territory of Hawai‘i. After which the United States intentionally sought to “Americanize” the inhabitants of the Hawaiian Kingdom politically, culturally, socially, and economically. To accomplish this, a plan was instituted in 1906 by the Territorial government, titled “Program for Patriotic Exercises in the Public Schools, Adopted by the Department of Public Instruction,” whose purpose was to denationalize the children of the Hawaiian Islands through the public schools on a massive scale.


Nearly 50 years later where denationalization was nearly complete, steps were taken to transform the government of the Territory of Hawai‘i into the State of Hawai‘i. President Eisenhower signed into United States law An Act To provide for the admission of the State of Hawai‘i into the Union on March 18, 1959. These laws, which have no effect beyond United States territory, stand in direct violation of treaties between the Hawaiian Kingdom and the United States, the 1907 Hague Convention, IV, and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, IV.

For the United States to have secured such a stronghold in the Hawaiian Islands as a governing body in a relatively short span of time was dependent upon the seizure of an already existing governmental infrastructure. The way in which thirteen insurgents calling themselves the Committee of Safety could take over the entire Hawaiian government on January 17, 1893, was by merely replacing the Queen as the chief executive and forcing everyone in the executive and judicial branches of government to sign oaths of allegiance while the U.S. troops provided oversight through intimidation and firepower. And when the U.S. troops were ordered to leave Hawai‘i on April 1, 1893, mercenaries replaced them until 1898 when U.S. troops returned to the islands.



A common misunderstanding is that the United States created the governmental infrastructure we have today through Congressional legislation such as the 1900 Organic Act that created the Territory of Hawai‘i, and the 1959 Admission Act that created the State of Hawai‘i. This is false. All that took place was the change in names and a few added agencies. The government of the State of Hawai‘i was formerly known as the government of the Territory of Hawai‘i. The government of the Territory of Hawai‘i was formerly known as the Republic of Hawai‘i. The government of the Republic of Hawai‘i was formerly known as the provisional government. And the government of the provisional government was formerly known as the Hawaiian Kingdom. The governmental infrastructure we see today was already in place in 1893.

Professor ChangIn a presentation at the University of Hawai‘i Richardson School of Law on April 17, 2014, senior Law Professor Williamson Chang stated, “The power of the United States, over the Hawaiian islands, and the jurisdiction of the United States in the State of Hawai‘i, by its own admissions, by its own laws, doesn’t exist.  And so that means that ever since the 1898 annexation of Hawai‘i, by a Joint Resolution, they say, we have been living a myth.” “A joint resolution, as an act of Congress, cannot acquire another country,” he said. “If Congress cannot, by Joint Resolution in 1898, acquire Hawai‘i unilaterally, it cannot do so in 1959,” Chang said.

Because the United States Congress has no authority beyond the territory of the United States, the State of Hawai‘i cannot claim that it is a government duly authorized under a Congressional Act to govern the Hawaiian Islands. And as a direct successor of an insurgency that was unlawfully installed by the United States diplomat and troops on January 17, 1893, it too is neither a government de facto nor de jure. This means that actions that were understood to be governance are now interpreted as actions taken by individuals pretending to be a government. The law of occupation interprets these actions as war crimes: e.g. taxation is now interpreted as the crime of pillaging and theft; civil and criminal trials done by a court not properly constituted is now interpreted as the crime of depriving a person of a fair and regular trial; and to pursue federal recognition of Native Hawaiians as a tribe is interpreted as the crime of denationalization.

With this backdrop, Professor Chang warned the audience at the Law School, “I’m going to make one big point. …Its like a hand grenade, I’m going to give you the pin to the hand grenade, you pull the pin and everything blows up. So don’t pull the pin.”

The only way for the State of Hawai‘i to remedy this situation is to begin to comply with the laws of occupation, and by the doctrine of necessity, begin to act as a United States military government administering the laws of the Hawaiian Kingdom and the laws of occupation. This is a very complex situation and it should not be taken lightly. Dr. Keanu Sai was retained by the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe to draft a memorandum and analysis of public international law and its effect on OHA and to provide recommendations in light of the alleged violations of international law and alleged war crimes. Dr. Crabbe provided all nine trustees a copy of Dr. Sai’s memorandum last week Friday.

Anecdotally—in 1893, the Hawaiian Porsche was carjacked by the United States and painted red, white and blue. Although we have not been driving the Porsche for the past 121 years and were brainwashed to believe it was not a Hawaiian car, it doesn’t mean the Porsche belongs to the United States. The fact that this history, which only spans two generations, is not common knowledge is the evidence of denationalization and the violation of Hawaiian sovereignty.

Office of Hawaiian Affairs CEO’s Questions to Secretary of State Kerry: Were these Rhetorical Questions?

Dr.-Kamana’opono-Crabbe-OHAIt has been nearly a month since the Office of Hawaiian Affairs (OHA) CEO Dr. Kamana‘opono Crabbe posed four questions to Secretary of State Kerry in a letter dated May 5, 2014.

  • First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?
  • Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?
  • Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?
  • Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?

These questions centered on the existence of the Hawaiian Kingdom and generated so much attention that it has awakened a sleeping giant—the Hawaiian community. Academics and professionals that stood shoulder to shoulder behind Dr. Crabbe at his Professor Changpress conference on May 12, 2014 showed their solidarity and support. One of these individuals who stood directly behind Dr. Crabbe was Professor Williamson Chang, senior law professor at the University of Hawai‘i Richardson School of Law. In a Star-Advertiser article, Professor Chang described the letter as “a profound and important moment in history.” “He has raised an issue that has not been approached before. It’s remarkable that a state agency is asking these questions,” he said.

What has replaced the rhetoric of politicians and sovereignty activists that often distorts Hawaiian history and law has been replaced by historical accuracy and legal sophistication. Academics armed with Ph.D.’s have begun to address Hawai‘i’s revisionist history that became institutionalized since the American occupation began in 1898, and attorneys have begun to apply this information in the courts throughout Hawai‘i.

From an international law perspective, these questions were cleverly worded and organized and are grounded in the recognized principle of international law called the presumption of continuity of an established sovereign State, which is similar to the principle of presumption of innocence. An assumption is a conclusion “without” facts and a presumption is a conclusion “with” facts. So when a person is accused of committing a crime that person is presumed to be innocent until proven guilty beyond a reasonable doubt because of the fact that the accused has legal rights. In international law, an established sovereign State is presumed to continue to exist because of the fact that it has legal rights, until evidence can be shown by another State that it has extinguished the sovereignty of the former State.

In 2001, the Permanent Court of Arbitration in the Netherlands verified the existence of the Hawaiian Kingdom as an independent State in Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 581 (2001) . The Court stated in its arbitration award, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” As an established State under international law since the nineteenth century, the Hawaiian Kingdom has these legal rights that apply to all States:

    1. States are judicially equal;
    2. Each State enjoys the rights inherent in full sovereignty;
    3. Each State has the duty to respect the personality of other States;
    4. The territorial integrity and political independence of the State are inviolable;
    5. Each State has the right freely to choose and develop its own political, social, economic and cultural systems; and
    6. Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

Crawford Larsen v Hawaiian KingdomAccording to Professor Crawford, The Creation of States in International Law (2006), p. 34, who is not only the leading authority on States, but was also the presiding arbitrator in Larsen v. Hawaiian Kingdom, “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.” So despite the illegal overthrow of the Hawaiian Kingdom government by the United States on January 17, 1893, and the prolonged occupation since the Spanish-American War in 1898, the Hawaiian Kingdom, as a State, would continue to exist even if there was no Hawaiian government.

The presumption of continuity places the burden on the United States to show legally relevant facts that the Hawaiian Kingdom does not continue to exist under international law. In other words, the Hawaiian Kingdom does not have to prove its own existence because it is presumed to continue to exist, just as a person does not have to prove their innocence. To effectively remove the presumption of continuity, there must be uncontroverted evidence of the extinguishment of the Hawaiian Kingdom by the United States. Since the Hawaiian Kingdom has legal rights under international law, the United States will have to provide evidence of extinguishment that only international law recognizes. According to Article 38 of the Statute of the International Court of Justice, the following sources of international law, ranked in order of precedence, are:

  1. International conventions (treaties), whether general or particular;
  2. International custom, as evidence of a general practice accepted as law;
  3. The general principles of law recognized by civilized nations; and
  4. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Under international law, a State who claims to be the successor of another State, when not at war, must take place by cession. Professor Oppenheim, International Law (1948), p. 499, explains that, “cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State.” He further points out 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.” The United States only claim to have extinguished the Hawaiian Kingdom is by a joint resolution of annexation passed by its Congress.

A joint resolution, however, is not a treaty or agreement between two states, but rather an agreement between the House of Representatives and the Senate in Washington, D.C. A joint resolution is a municipal law of the United States whose effect is limited to United States territory. The United States Supreme Court, The Apollon, 22 U.S. 362, 370 (1824), affirmatively stated, that the “laws of no nation can justly extend beyond its own territory” for it would be “at variance with the independence and sovereignty of foreign nations” In U.S. v. Belmont, 301 U.S. 324, 332 (1937), the Court also stated that, “our Constitution, laws and policies have no extraterritorial operation.”

Further complicating the problem for the United States was a legal opinion by the United States Department of Justice’s Office of Legal Counsel in 1988. In the 1988 memorandum titled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” the Office of Legal Counsel addressed the annexation of the Douglas_KmiecHawaiian Islands by joint resolution. Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded, “Notwithstanding these constitutional objections, 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. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.”

Sovereignty of an established State is never in abeyance or in suspension. The sovereignty is either vested in the Hawaiian State itself or in the United States as its successor.  If the Attorney General’s Office of Legal Counsel is “unclear” as to the authority of Congress, it cannot be considered to have extinguished the Hawaiian Kingdom’s continuity under international law, and, therefore, the presumption of continuity would remain with the Hawaiian Kingdom as an independent sovereign State.

So when we revisit Dr. Crabbe’s letter and his questions posed to Secretary of State Kerry there is only the first question that would need to be answered with clear and convincing evidence that the Hawaiian State no longer exists under international law. But to do so, the United States would need to provide evidence of a treaty of annexation or an international custom that has terminated the Hawaiian State, which it doesn’t have. In other words, Dr. Crabbe’s questions were really rhetorical questions that he already knew the answers to. The significance of the letter, however, is that it was a formal notification of a State of Hawai‘i government official to the Secretary of State that OHA is aware that the Hawaiian Kingdom continues to exist and that it will have to deal with issues of criminal liability under international law.

University of Hawai‘i Libraries Special Collection: The 1897 Petitions Protesting Annexation

University of Hawai‘i Libraries Special Collection – The 1897 Petitions Protesting Annexation by Professor Noenoe K. Silva

When William McKinley won the presidential election in November of 1896, the question of Hawaii’s annexation to the U.S. was again opened. The previous president, Grover Cleveland, was a friend of Queen Liliuokalani. He had remained opposed to annexation until the end of his term, but McKinley was open to persuasion by U. S. expansionists and by annexationists from Hawaii. He agreed to meet with a committee of annexationists from Hawaii, Lorrin Thurston, Francis Hatch and William Kinney. After negotiations, in June of 1897, McKinley signed a treaty of annexation with these representatives of the Republic of Hawaii. The President then submitted the treaty to the U. S. Senate for approval.

The Hui Aloha Aina for Women, the Hui Aloha Aina for Men, and the Hui Kalaiaina formed a coalition to oppose the treaty. Together, these three organizations represented a majority of the Kanaka Maoli (Native Hawaiians). Hui Kalaiaina had originally been formed after the Bayonet Constitution of 1887 as a vehicle for Kanaka Maoli political power. The two Hui Aloha Aina organizations were founded just after the overthrow of the Native government in 1893, expressly to support the Queen and to oppose U.S. annexation.

The Kanaka Maoli believed that the American government was committed to their stated principles of justice and of government of the people, by the people, and for the people. They believed that once the U.S. President and members of Congress saw that the great majority of Hawaiian citizens opposed the annexation, the principles of fairness would prevail, that is, their Native government would be restored. The three huis therefore began to organize mass petition drives The heading on Hui Aloha Aina’s petition read: PALAPALA HOOPII KUE HOOHUI AINA, Petition Protesting Annexation

James KauliaOn September 6, 1897, the Hui Aloha Aina held a halawai makaainana – a mass meeting – , at Palace Square, which thousands of poe aloha aina – patriots – attended. President James Kaulia gave a rousing speech, saying “We, the nation (lahui) will never consent to the annexation of our lands, until the very last patriot lives.” He said agreeing to annexation was like agreeing to be buried alive. He predicted that annexation would open the door for many foreigners to come here, and to take jobs and resources away from the Native people. He asked, “Then where will we live?” The crowd answered, “In the mountains,” which figuratively means, “we shall be homeless.” He asserted that a mass refusal by the people could prevent the annexation: “If the nation remains steadfast in its protest of annexation, the Senate can continue to strive until the rock walls of Iolani Palace crumble, and never will Hawaii be annexed to America!” The annexationist newspapers had published threats that the leaders of the mass meeting would be arrested for treason, but Mr. Kaulia assured the people that their assembly was legal. He said that it was because the brains of the government could not push over the brains of the Kanaka Maoli that the government had to resort to weapons of war. (At this time, Hawaii was ruled by a haole – European- American – oligarchy called the Republic of Hawaii that had deprived the Native people of political participation.) He said, “Let us take up the honorable field of struggle, brain against brain.” He told the people, “Do not be afraid, be steadfast in aloha for your land and be united in thought. Protest forever the annexation of Hawaii until the very last aloha aina [lives]!” The crowd cheered.

David KalauokalaniFollowing Kaulia, David Kalauokalani, President of the Hui Kalaiaina, explained the details of the annexation treaty to the crowd. He told them that the Republic of Hawaii had agreed to give full government authority over to the United States, reserving nothing. It would also give all the government’s money, the government and crown lands, government buildings, harbors, bays, military forts, military armaments and warships, and all resources claimed by the government of the Hawaiian Islands. Furthermore, he explained, the laws of the United States would not extend to the Hawaiian Islands, but the Congress of the U.S. would decide how Hawaii was to be governed. It was uncertain whether the Kanaka Maoli would have the right to vote. He said those who favored annexation would want to deny Kanaka Maoli voting rights because, from the very beginning, they have known that the Kanaka Maoli would overwhelmingly vote against annexation and anyone who supported it. This is the reason they were always afraid to put a vote to the people.

A resolution protesting the annexation was read to the crowd, who approved it. It was announced that U.S. Senator Morgan, an advocate of annexation, would be arriving soon, and that there would be another mass meeting held while he was here.

Kuaihelani_CampbellEmma_NawahiThe petition drive started at about this time. Very soon afterwards, Mrs. Abigail Kuaihelani Campbell, President of the Women’s branch of the Hui Aloha Aina, and Mrs. Emma Aima Nawahi boarded the inter-island ship the Kinau for Hilo on a signature gathering mission.

On September 14, Senator Morgan and four congressmen from the U.S. indeed arrived. On the same day, Mr. Enoch Johnson and Mr. Simon Peter Kanoa boarded the Claudine for Maui, and Mrs. Kaikioewa Ulukou departed for Kauai – all bound to gather signatures on those islands. The Hui Aloha Aina paid all of their expenses.

At the same time, there was a branch of the Hui Aloha Aina active at Kalaupapa (on the island of Molokai) where people with leprosy were imprisoned. The President of the Kalaupapa branch was Mr. Robert M. Kaaoao, who not only gathered signatures on the protest petitions, but had also organized a full day’s activities to commemorate the Queen’s birthday on September 2. The activities included a prayer service; boating, swimming, running, horse, and donkey races; as well as pole climbing and apple eating contests.

When Mrs. Campbell and Mrs. Nawahi arrived in Hilo harbor, they were greeted with honors. A delegation of the Hilo chapter of the Hui, consisting of Mr. Henry West, Mrs. Hattie Nailima, Mrs. Kekona Pilipo, and Mrs. J.A. Akamu met them at the harbor. The Hilo delegation showered them with leis, and proclaimed that a Hawaiian double-hulled canoe would carry them into the harbor. They had decorated five seats on the beautiful vessel with leis of maile, lehua, and other flowers, and had a Hawaiian flag waving at the back. The people of Laupahoehoe had sent welcome gifts of opihi, limu, and fish. Mrs. Campbell and Mrs. Nawahi attended meetings of the Hui Aloha Aina all over the Hilo and Puna area, and returned with thousands of signatures.

Meanwhile Mrs. Laura Mahelona was working hard in Kona and Kau; she was the committee member delegated to gather signatures there of both men and women. She traveled from North Kona south to Kau, leaving blank petitions with instructions everywhere she went. She told the chapter presidents to get the petitions signed and return them in a few days when her ship would stop again at the same harbors. When she returned, signed petitions were ready at every harbor. When she landed at each port, she was welcomed by the women of the Hui Aloha Aina branches, carrying leis over their arms, and when she returned to the boat, her clothes couldn’t be seen because she was completely covered by leis. Mrs. Mahelona gathered 4,216 signatures.

Mrs. Kaikioewa Ulukou gathered 2,375 on the island of Kauai.

Mr. Simon P. Kanoa gathered 1,944 in the district of Hana, Maui.

When all the work was done, there were over 21,000 signatures- men’s and women’s in about equal numbers. When one considers that the population of Native Hawaiians at the time was less than 40,000, this is an impressive number.


The Hui Kalaiaina also had a substantial membership- -they conducted their own petition drive at the same time, collecting about 17,000 signatures.

The Hui Aloha Aina held another mass meeting on October 8, 1897, and at that time decided to send delegates to Washington D.C. to present the petitions to President McKinley and to the Congress.

The executive committees of the three hui met and decided to send four delegates: James Kaulia of Hui Aloha Aina, David Kalauokalani of Hui Kalaiaina, with John Richardson, and with William Auld as secretary. All four were Kanaka Maoli. This was an important sign to the nation. Some people had written in the papers that previous delegates to Washington had failed because they were not Kanaka Maoli, or because they were too wealthy to truly have the nation’s well-being in mind at all times. It is important to note that although a women’s representative did not travel to Washington, Mrs. Campbell, President of the women’s branch of Hui Aloha Aina, was part of the decision-making committee, and was viewed as a leader of the nation along with the men.

The four Elele Lahui – National Delegates – left Hawaii on November 20, 1897. In San Francisco on November 28, they commemorated La Kuokoa – Hawaiian Independence Day.

They arrived in Washington on December 6, the day that the Senate opened. They first met briefly with Queen Liliuokalani, who was staying in Washington. Then they met Senator Richard Pettigrew who took them in to the Senate’s opening ceremonies. After the ceremonies, they returned to Ebbitt House where the Queen was staying, and where they would also stay. Someone told them at that time that their trip to Washington was useless, since it was known that there 58 votes on the side of annexation, with only 2 more votes needed for the treaty to pass. They said they didn’t answer but remained as quiet as doves. They spoke amongst themselves later, however, to plan what to do.

The next day, December 7, they met again with the Queen to consider how to present the petitions. They chose the Queen as chair of their Washington committee. Together, they decided to present the petitions of Hui Aloha Aina only, because the substance of the two sets of petitions was different. Hui Aloha Aina’s was called “petition protesting annexation,” but the Hui Kalaiaina’s petitions called for the monarchy to be restored. They agreed that they did not want to appear divided, as if they had different goals.

John RichardsonThe day after that, the delegates met with Senator Hoar, who was against annexation. They braved snow, cold and slippery streets to get to the Senator’s residence. They said the “elemakule” (old man) greeted them with a handshake. He asked them what the people of Hawaii thought about annexation. John Richardson, the spokesman, explained everything. While he was explaining, they could see tears welling up in the old man’s eyes. Richardson told him that they brought petitions signed by the whole nation protesting the annexation. Senator Hoar told them to submit the petitions to him, and he would bring them before the Senate, and then to the Foreign Relations Committee. David Kalauokalani of Hui Kalaiaina also submitted his endorsement of those petitions (so that the U.S. would know both huis had the same goal). On December 9, Senator Hoar read the text of the petitions to the Senate and had them formally accepted. The delegates were present, seated in the area where people are allowed to observe the Senate proceedings.

On December 10, the delegates met with Secretary of State John Sherman, and Kalauokalani submitted a memorial protesting annexation (Ka Memoriala a ka Lahui) to him.

In the following days, the delegates met with many different Senators and Congressmen. Senators Pettigrew and White encouraged them in the hope that the annexation treaty would be defeated. They said that they were asked a lot of questions about Japan or England trying to annex Hawaii. They answered that either of them could have taken Hawaii if they had wanted to any time in the past five years. Why would they wait for America to try before they did so? They also reminded the U.S. Congressmen that Hawaii had remained independent for fifty years, partly because of the 1843 resolution signed by Great Britain and France guaranteeing Hawaii’s independence.

By the time they left Washington on February 27, there were only 46 votes in the Senate on the pro-annexation side, down from 58 when they had arrived. Forty-six votes was far too few for the treaty to pass — sixty votes were necessary.

Senator Pettigrew and Senator Turpie insisted that the Kanaka Maoli of Hawaii be given a chance to vote on annexation. But Senator Morgan and the other pro-annexation Senators knew that if a vote were taken, it would be overwhelmingly in favor of Hawaii’s independence. In a report, these Senators wrote, “If a requirement should be made by the United States of a plebiscite [vote] to determine the question of annexation, it would work a revolution in Hawaii which would abolish its constitution.” They knew, in other words, that if the people were allowed to vote, not only would they reject annexation, they would also reject the haole Republic that had been forced upon them against their will.

William AuldThree of the delegates, James Kaulia, David Kalauokalani, and William Auld returned to Honolulu victorious, sure that the treaty would fail, as indeed it did. They had carried the hard work and hopes of the whole nation to Washington in the form of the protest petitions. They had succeeded in persuading many senators to vote against the treaty. They left behind John Richardson to continue the work, along with Queen Liliuokalani, her secretary Joseph Heleluhe, and her devoted friend, J.O. Carter.

One annexation crisis was over, but another was soon to follow. This same year, the peoples of Cuba and the Philippines were fighting wars of independence against Spain. The United States also declared war on Spain after the U.S. warship, the Maine was blown up in a harbor in Cuba. The reason that the Maine was even in Cuba is questionable, since the U.S. had not been involved until it involved itself by sending the ship there. Be that as it may, the United States was at war. Suddenly, the empire- builders of the United States were saying that they needed to send military troops on ships to the Philippines to fight Spain. For this, they said they needed Hawaii. In the midst of the fever of war, a Joint Resolution of Congress called the Newlands Resolution passed by a simple majority of each house, making Hawaii a territory of the United States. That was in July of 1898; the flag of the United States was hoisted over Hawaii on August 12th.

The Kanaka Maoli continued to protest. The Hui Kalaiaina concentrated on persevering to undo the annexation, and restore the Native government. Hui Aloha Aina began to work towards securing full civil and political rights for Hawaiian citizens in the U.S. territorial system. In 1900, the two huis banded together as one political organization called the Home Rule Party. David Kalauokalani was elected President, and James Kaulia as Vice-President. This was the party that elected Robert Kalanihiapo Wilcox as (non-voting) Delegate to the U.S. Congress.

James Keauiluna Kaulia continued his work for his nation until the day of his death at age 41, in 1902. On that Sunday, he spent the morning at the jail house trying to help prisoners assert their rights. After church and lunch, he lay down for a nap from which he never woke up. He died of heart failure.

David Kalauokalani lived until 1915, also serving his people all of his life. He served as a senator in the territorial legislature, and as a member of the Board of Health. His son, also named David, became the first clerk of the City and County of Honolulu.

Mrs. Kuaihelani Campbell served as President of Hui Aloha Aina for its entire existence. She later became well-known as a benefactor for the ill and poor among her people, and for her many charitable deeds. She married Samuel Parker in 1902. Her daughter Abigail married Prince David Kawananakoa at about the same time, and Mrs. Campbell-Parker thereby became an ancestor to the royal family remaining in Hawaii today. She passed away in 1908.

Mrs. Emma Aima Nawahi kept the newspaper Ke Aloha Aina running for many years as its owner and business manager. She sold it in 1910. She also remained active in charities until her death in 1935.

The petitions protesting annexation, consisting of five hundred fifty-six pages, are now held in the National Archives in Washington D.C.

The Kanaka Maoli continue to protest today. We have never relinquished our national sovereignty. Kanaka Maoli are working on state, national, and international levels to have our existence as a nation recognized. Kanaka Maoli also continue to resist and protest every encroachment upon our inherent rights to this land, our ocean and fresh waters, and all the other natural resources of Hawaii. We are insisting as well on our rights to keep our language and cultural traditions, and the land itself, alive.

Radio Australia Interview with Dr. Willy Kauai on OHA and the Obama Administration

Radio Australia Photo 3

To listen to the interview click here.

KAUAI: I think one of the problems that you see is that they’ve poured a lot of energy, a lot of resources into federal recognition, that is building a stronger relationship with the United States. What you failed to see however as Kaleikoa had pointed out was there’s going to be this resurgence with regard to education, with regarding to knowing our history, a history that is just important for historical purposes, but has current implications today, specifically legal implications. And so, I think when you see the passion, the passionate work in which we hear from people like Kaleikoa, you start to see kind of this history becomes a source of empowerment, a source that we can go today to help to kind of resolve some of our problems that we have right now.

EWART: You made the point there about the legal issue that is tied up in this. Now, just a couple of weeks ago, we heard the chief executive of the Office of Hawaiian Affairs, we heard that he’d written to the United States Secretary of State, John Kerry, asking for legal clarification on the status of the Kingdom of Hawaii and that letter in itself stirred up a certain amount of debate. How does that request, coming from the OHA sit with this apparent push for federal recognition. It would seem the two things don’t really add up?

KAUAI: Yeah. I mean one is definitely running contrary to the other, but I think what’s important is that, that was just a mere question, that was a simple question posed to the United States by a state official, of the State of Hawaii, asking for clarification, that’s all it was, was simply a question. What’s interesting is the response, not only of the board to the request, to that question, but also from the community as well. And it’s at that moment, where you can see how out of touch the Office of Hawaiian Affairs is with the Hawaiian community. I don’t necessarily think that OHA had I think realised how informed the community has become in the last 15 years, especially with regard to this idea of Hawaii being occupied, all right, or this, excuse me, not the idea, but of the fact that Hawaii is currently occupied, especially given that the United States has never shown legal title to these islands and therefore.

EWART: Are you satisfied therefore, that you were amongst a group of around 100 or so people who were present at that meeting of the Office of Hawaiian Affairs. I mean do you believe that you and those people who were there are truly representative of the wider indigenous Hawaiian community?

KAUAI: I wouldn’t necessarily say that and there in lies the problem. What you’ve seen there and what OHA is pretty responsive to was this call for education, that if we’re going to go about doing these important things, such as nation building, then the 500 thousand native Hawaiians that exist in the world today should have a very clear understanding of their history and the current legal position that Hawaii is in today, so that we can move forward, not with a clear understanding of our history, but with strength we can move forward with strength in knowing that what our ancestors did in the 19th. Century and the bullet proof legal argument that they have left there is so important for Hawaii and for native Hawaiians. That, I think is what the rallying cry was from the majority of those 100 participants, but also for the larger Hawaiian community as well, yeah. that we need to become educated on these matters.

EWART: So therefore, it would seem to be vitally important from the perspective of yourself and like minded others that Barack Obama’s offer to vast track the legal recognition of native Hawaii, native Hawaiians by Washington has to be at least delayed until these matters can be put to the wider group of people?

KAUAI: Absolutely, that when I had seen that kind of fast track proposal from the Obama administration, you can, in fact, see how powerful that question to the State Department was in asking the United States to clarify their legal jurisdiction of Hawaii. We expect to see how everybody is responding to this, such as the 9 trustees, such as the State Department, and now such as Barack Obama. And that gives you, I think a feeling of how powerful education is in these matters.

The War Report: 2013 Will Note Hawai‘i’s Occupation

The next publication of The War Report: 2013 is schedule to be released by Oxford Press on December 6, 2014. The War Report: 2013 is the second in a series of annual reports that will give an overview of armed conflicts and occupations for that particular year, and is designed as a resource for those working in the field, governments, policy-makers, journalists and the United Nations.

For the year 2012, The War Report reported 37 armed conflicts on the territory of 24 states; of the 38 only one was an active international armed conflict, between South Sudan and Sudan. Also reported were 9 “belligerent occupations”, which fall under laws governing international armed conflicts. These occupations included the occupation of 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. Each of the occupations reported have the following headings: Classification of the Conflict; Summary of Applicable International Law; History of the Conflict; Parties to the Conflict; Casualties; Displacement; and War Crimes Allegations, Investigations, and Prosecutions.

The reported, “The long-term trend from officially declared wars between sovereign states to armed conflicts inside states and territories has important implications for international justice,” says Dr. Stuart Casey-Maslen, editor of The War Report. “Without a clearer legal basis for what constitutes an armed conflict under international law, accused perpetrators of war crimes will not be prosecuted.”

“The classification of an armed conflict under international law is an objective legal test and not a decision left to national governments or any international body, not even the UN Security Council,” says Andrew Clapham, Director of the Academy and Graduate Institute Professor in International Law.

“It is not always clear when a situation is an armed conflict, and hence when war crimes can be punished,” added Professor Clapham. “The War Report aims to change this and bring greater accountability for criminal acts perpetuated in armed conflicts.”

On May 24, 2014, Dr. Maslen notified Dr. Keanu Sai by email that Hawai‘i would be noted in the next publication of The War Report: 2013. When Dr. Sai met with Dr. Maslen at the Geneva Academy of International Humanitarian Law’s office in Geneva on March 26, 2014, the staff of the War Report was already in their final stages of editing the reported armed conflicts and occupations for the year 2013 before submitting the manuscript to Oxford Press. Dr. Sai sought to have Hawai‘i included, but realized at the meeting it was too late for this edition.

At the meeting, Dr. Sai presented a power point presentation on the history of the Hawaiian Kingdom and how it came under an illegal and prolonged occupation. Dr. Maslen was also provided with information and evidence of the occupation. In March, Dr. Maslen assured Dr. Sai that a decision would be made and if it has been determined that Hawai‘i is occupied according to the Academy’s criteria it will be listed on its website Rule of Law in Armed Conflicts in June. The website provides monthly updates on armed conflicts and occupations and is currently under construction, but was scheduled to be completed by June. Dr. Maslen also told Dr. Sai in the email that the website will be completed at the end of July instead of June as previously thought.

It would appear that the information on Hawai‘i’s occupation is what prompted Dr. Maslen to note Hawai‘i’s occupation in the publication of The War Report: 2013. Dr. Sai was very thankful to Dr. Maslen and his staff for the last minute notation, and he has been told that the Geneva Academy will be monitoring the developments in Hawai‘i for inclusion in the next publication, which will be released in December 2015.  

Australia Network News: Kingdom of Hawaii may still exist, challenges US over sovereignty

Australia Network News Photo

Australia Network News reports: “The CEO of the Hawaiian Affairs Office (OHA) has retained his job and gained public support to challenge the US on whether the Kingdom of Hawaii still exists as a sovereign country.”

Australia Network News Photo 2Kamanaopono Crabbe sparked an internal crisis when he sent a letter to US Secretary of State John Kerry, asking for a ruling on whether the Kingdom of Hawaii still legally exists.

The letter, which was quickly rescinded by the OHA’s trustees, was prompted by the US Government’s acknowledgment that the overthrow of the kingdom in 1893 was illegal.

Political scientist Dr Keanu Sai, from Windward Communtiy College in Honolulu, told Pacific Beat the OHA board thought Dr Crabbe had violated their policy by sending the letter without approval, but later realised they were mistaken.

“[Dr Crabbe] was not in violation of any policy of the board but rather was operating on his diligence and risk management,” Dr Sai said.

Mr Crabbe has now won the support of the OHA trustees, who have moved to send the letter again and retain him in his role as CEO.

“They’re in full support and they say that his questions definitely do have merit.”

Public support for Mr Crabbe’s campaign is also growing, with 2,500 people signing an online petition.

Dr Sai said Hawaiians need clarification on the issue.

“What was overthrown was the government, not the country,” he said.

Dr Sai blames revisionist history education for misconstruing local understanding of Hawaii’s true status.

“A revisionist history has been taught here in Hawaii since the early 1900s that presented Hawaii as if it was a part of the United States when in fact there is clear evidence that it’s not,” he said.

“We need to address this because it will affect our people but it also affects everyone.”

Dr Sai says if the Kingdom of Hawaii does indeed still exist, many historical treaties with nations including the UK and Australia would still be in effect.

International law

The US may be in violation of international law if Hawaii is still technically its own country.

The US would be guilty of appropriating funds by taxation and other related crimes, by not complying with occupation laws.

Dr Sai says within the framework of international law, there is presumed of continuity of a country when it is established.

“All that needs to be provided is evidence that Hawaii was a country (and it was, fully recognised by the United States and Great Britain and everyone else),” he said.

“It places the burden upon the United States to provide overwhelming evidence that it in fact extinguished Hawaii as an independent state under international law.

“In the absence of that evidence, the Hawaiian kingdom continues to exist.”

Hawai‘i News Now – Office of Hawaiian Affairs CEO to keep job

Hawai‘i News Now reports “Office of Hawaiian Affairs CEO to keep job.”

Hawaii News Now – KGMB and KHNL

HONOLULU (HawaiiNewsNow) – Trustees with the Office of Hawaiian Affairs met for hours behind closed doors Monday to discuss the fate of CEO Dr. Kamana’opono Crabbe.  There was concern from Dr. Crabbe’s supporters, dozens of whom gathered outside the OHA boardroom, that he would be fired and the longer trustees stayed in executive session the more anxious the crowd grew.  But just before 6 p.m., Dr. Crabbe and the Board of Trustees emerged united to say they were moving forward together.

Dr. Crabbe ignited an internal dispute that has since sparked a public debate after he sent an official inquiry to the state department asking for a legal opinion on whether the Kingdom of Hawaii still exists.

When OHA’s nine trustees learned of the letter — they sent a letter of their own rescinding the request.  Two trustees later changed their mind and now support Dr. Crabbe’s inquiry.

“In our discussions today, the board and I do agree that there’s merit to the questions that were brought up in the letter. We have agreed to move forward with our community. I believe the board will be conducting a meeting on March 29 to hear feedback from our community regarding our nation building process. The board has agreed that we recognize the illegal overthrow of our Hawaiian Kingdom and how to best seek clarification of that status as we move forward,” said Dr. Crabbe.

Questions have been raised about whether Dr. Crabbe had the authority to request a legal written opinion without first obtaining board approval.

Several complaints have also been filed with the Office of Information Practices challenging the trustees letter to rescind Dr. Crabbe’s inquiry citing it may have violated the state’s sunshine law — which prohibits board members from voting on an action without first calling a public meeting.

Officials say all legal challenges are still under review.

Dozens of Dr. Crabbe’s supporters showed up to rally for the CEO, but their attempts to sign up for public testimony were turned down as Monday’s meeting was scheduled specifically as an “executive session” to consult with board counsel Robert Klein about Dr. Crabbe’s conduct and to discuss appropriate action.

“It was a really gut-wrenching discussion. I think we attempted to look at the overarching issues here and not to pinpoint a particular blame on one individual. I believe the message I would like to send to all our lahui is that if OHA can repair and move forward, examine our responsibilities both at the board of trustee level and at the administrative level, and see a common, unified effort to move forward, I truly believe that we will move forward with the building of our Native Hawaiian entity.  That will never change,” said Chair Colette Machado.

“At the time of the discussion, we had no idea that the level of hurt was so deep that we had to take it layer by layer, and I’m so proud that we had that opportunity today with Dr. Kamana’o Crabbe in ho’oponopono and there is a unifying effort to moving forward. Once we were able to release one another from our past transgressions and all of the pilikia that may have been caused either by intention or in addition to something that came through the side door. So to me I am blessed to have had that opportunity today and then we’ll be moving forward, but looking seriously at some modifications or changes to the previous policy on building the Native Hawaiian entity,” Machado said.

OHA has decided to hold a public meeting on May 29 for community feedback on how to best move forward with nation-building.

OHA’s “Executive Meeting” Monday Another Violation of Sunshine Law?

As a State of Hawai‘i government agency, the Office of Hawaiian Affairs comes under the Sunshine Law. The purpose of the sunshine law is to provide public input and oversight for board and commission meetings of the State of Hawai‘i government. The State of Hawai‘i Office of Information Practices (OIP) oversees compliance to the Sunshine Law, which is a criminal statute.

According to the OIP Guide to the Sunshine Law for State and County Boards, “the intent of the Sunshine Law is to open up governmental processes to public scrutiny and participation by requiring state and county boards to conduct their business as openly as possible. The Legislature expressly declared that ‘it is the policy of this State that the formation and conduct of public policy—the discussions, deliberation, decisions, and actions of governmental agencies—shall be conducted as openly as possible.’”

All meetings of the Office of Hawaiian Affairs Board of Trustees (BOT) must be open to the public and the BOT must accept testimony, both written and oral, at its meetings. The BOT, however, can hold meetings that are not open to the public, which are called “executive meetings.” Executive meetings can only be convened for eight reasons: licensee information, personnel decisions, labor negotiations/public property acquisition, consult with Board’s attorney, investigate criminal misconduct, public safety/security, private donations, and State/Federal law or court order.

The OIP Guide states, that in order to “convene an executive meeting, a board must vote to do so in an open meeting and must publicly announce the purpose of the executive meeting. Two-thirds of the board members present must vote in favor of holding the executive meeting, and the members voting in favor must also make up a majority of all board members, including members not present at the meeting or membership slots not currently filled. The minutes of the open meeting must reflect the vote of each board member on the question of closing the meeting to the public.”

The BOT, however, could hold an “emergency meeting” that does not require notification with the Lieutenant Governor’s office and agenda only if there’s “an imminent peril to the public health, safety, or welfare.”

The OIC Guide states, “A willful violation of the Sunshine Law is a misdemeanor and, upon conviction, may result in the person being removed from the board. The Attorney General and the country prosecutor have the power to enforce any violations of the statute.”

As reported by Larry Geller of the Disappeared, there is no evidence that the BOT complied with the Sunshine Law and that the BOT’s meeting in Washington, D.C., where the Trustees voted to rescind the CEO Dr. Kamana‘opono Crabbe’s letter to Secretary of State Kerry, was held in secret. Information is now surfacing that there was no meeting of the BOT in Washington, D.C., and consequently if there was no meeting then there could have been no votes. The only evidence to confirm that a meeting was held is to have minutes of the meeting that would signify each of the Trustee’s votes and the discussion that preceded it. Furthermore, in order for this meeting to be in compliance with the Sunshine Law, the Lieutenant Governor’s office was supposed to have been notified six days in advance with the agenda for the meeting that was supposed to have been open to the public. But the Lieutenant Governor’s office has no record that any meeting took place in the month of May.

If there was to be a meeting, which we know there wasn’t, the Chairperson of the BOT could have convened an “special meeting” in Washington, D.C., where there existed an unanticipated event that requires a board to take immediate action. On this matter, the OIC Guide states that a “board may convene a special meeting with less than six calendar days’ notice because of an unanticipated event when a board must take action or a matter over which it has supervision, control, jurisdiction, or advisory power.” However, as confirmed by Mr. Gellar of Disappeared, the Lieutenant Governor’s office has no record that notice of the May 9, 2014 BOT meeting was filed, thereby signaling a clear violation of the Sunshine Law and calling into question the validity of the May 9, 2014 BOT meeting and all actions allegedly discussed and voted on by the BOT.

On May 13, 2014, the Lieutenant Governor’s office received a request from OHA Trustee Colette Y. Machado, Chairperson, Board of Trustees announcing an “Executive Session” meeting of the BOT for Monday, May 19, 2014, to “consider appropriate action with respect to the conduct of Dr. Crabbe,” and “questions and issues pertaining to the Board’s powers and duties under its governance initiate.” This is an executive meeting not open to the public.

BOT_5_19_14 Agenda

The glaring problem with having this closed “executive meeting” is that it required an open “meeting” first. According to the Sunshine Law, “two-thirds of the board members present must vote in favor of holding the executive meeting, and the members voting in favor must also make up a majority of all board members,” and that “the minutes of the open meeting must reflect the vote of each board member on the question of closing the meeting to the public.” If there was no open meeting in Washington, D.C., to begin with, how could Trustee Chairwoman Colette Machado call for an “executive meeting” without first having a open meeting? Simply answered, she can’t because there was never a meeting to begin with.

Further complicating this issue for the BOT is that the Sunshine Law was directly addressed in an open meeting at the Office of Hawaiian Affairs on January 13, 2014. The issues centered on the commercial development of Kaka‘ako and whether or not actions taken by the Board violated the Sunshine Law. Former Associate Justice of the Hawai‘i Supreme Court and now BOT Counsel, Robert Klein, made the following statement to the Board’s open meeting of the Committee on Beneficiary Advocacy and Empowerment, which are reflected in the minutes. All nine of the Trustees were present.

Minutes of January 13, 2014:
Robert_KleinBoard Counsel Klein shares that there are a few exceptions. We operate on the principle that if you have two trustees, you’re fairly safe in not filing agendas for meetings between the two. The whole point of the sunshine law is to give notice to the public; if you’re having something that resembles a meeting (a quorum of Trustees that are meeting about anything).

In the case where you have two trustees who are meeting, in most situations that is way short of a quorum. Whatever they’re discussing, as long as they’re not trading votes or making arrangements on a certain issue, you’re not going to run afoul of the sunshine law.

When you get to three trustees, you need a special exemption. Many boards and commissions have 5 members, so when you have 3 together, you have quorum. However, this is a large board where there are 9 of you, so you don’t have a quorum until there are 5 you; so 3 is a safe number. The question is whether you can find an exception in the sunshine law for 3 trustees to meet together and when you look at the sunshine law there are certain exceptions called “Permitted Interactions” and what that means is you can have interactions with 2 or more trustees short of a quorum as long as you’re not trading votes and deciding things away from the public eye.

Under these circumstances the legislature has provided for exceptions. In this situation, the only exception that potentially applies is the exception where two or more but less than a quorum of trustees meet to discuss or negotiate a point that the trustees as a whole in public have already agreed to be the position of OHA and that commission or committee of the Board is moving forward running with the proposal already approved in public by the trustees.

Colette MachadoTrustee Chairwoman Machado cannot claim ignorance of the Sunshine Law and nor can all nine of the Trustees. The actions taken by the Board in Washington, D.C., clearly was in violation of the Sunshine Law. The irony of the whole situation is that the May 9 letter to Secretary of State Kerry attempting to rescind the CEO’s letter of inquiry, which has all nine signatures of the Trustees, is the evidence of the violation of the Sunshine Law. As such, this would consequently render the Trustees’ letter to Secretary of State Kerry “void” because it stemmed from a direct violation of the law itself.

Trustees Dan Ahuna and Hulu Lindsey took the right steps in removing their names from the May 9, 2014 rescinding letter because it shows that there was no “willful violation of the Sunshine Law,” which is a misdemeanor, on their part. It would make sense for all of the Trustees to follow their example before its too late.

CORRECTION: It was incorrectly stated that the meeting scheduled for Monday, May 19, 2014, was an executive meeting closed to the public. The meeting is an open meeting, but a portion of the meeting would be closed to the public. Since the closed meeting is an extension of the original violation of the Sunshine Law that took place in Washington, D.C., the Monday meeting is illegal.