Monthly Archives: September 2023

Hawaiian Nationality: Who Comprises the Hawaiian citizenry

Posted on by
9

The European Convention on Nationality defines nationality as the legal bond between a person and a State and does not indicate the person’s ethnic origin. It is a person owing loyalty to and entitled by birth or naturalization to the protection of a given State. The terms nationality and citizenship are synonymous, and affords a person the political right to participate in government. Without it, a person is prevented from electing governmental officials or serving as a government official themselves. A political right is distinctly different from a civil right, which are basic human rights protected by the constitution and laws of the State, irregardless of a person’s citizenship. Non-citizens residing in the State are categorized as Aliens or Foreigners.

There are three ways a person could acquire citizenship within an established State depending on its national laws: (1) jus sanguinis, where a person being born outside the territory of the State acquires the citizenship of his or her parents; (2) jus soli, where the nationality is conferred upon a person by birth within the territory of the State; and (3) naturalization, where the government grants citizenship upon the application of a foreigner.

On January 21, 1868, the Minister of the Interior for the Hawaiian Kingdom, Ferdinand Hutchison, stated the criteria for Hawaiian nationality: “In the judgment of His Majesty’s Government, no one acquires citizenship in this Kingdom unless he is born here, or born abroad of Hawaiian parents, (either native or naturalized) during their temporary absence from the kingdom, or unless having been the subject of another power, he becomes a subject of this kingdom by taking the oath of allegiance.”

The position of the Hawaiian Government was founded upon Hawaiian statute. Section III, Art. I, Chap. V of an Act to Organize the Executive Departments, 1845 and 1846, provided: “All persons born within the jurisdiction of this kingdom, whether of alien foreigners, of naturalized or of native parents, and all persons born abroad of a parent native of this kingdom, and afterwards coming to reside in this, shall be deemed to owe native allegiance to His Majesty. All such persons shall be amenable to the laws of this kingdom as native subjects. All persons born abroad of foreign parents, shall unless duly naturalized, as in this article prescribed, be deemed aliens, and treated as such, pursuant to the laws.”

There are two exceptions where birth within the territory does not result in citizenship. First, where a child is born within the territory, but the child’s parents are foreign ambassadors or diplomats, that child is not a citizen of the territory of birth; and second, where a child is born of Alien enemies in an area of the territory under hostile occupation, that child will not be a citizen.

Regarding children of foreign diplomats, Frederick Turrill was an American citizen born in the Hawaiian Islands, but later got naturalized on May 21, 1888; and E.H. Wodehouse was a British subject born in the islands and later naturalized on May 7, 1892. The second exception applies to belligerent occupations.

There are numerous references to “children born of alien enemies in hostile occupation,” and one such reference is a U.S. Supreme Court decision. In 1898 during the Spanish-American War, the U.S. Supreme Court rendered a decision concerning the United States citizenship of Wong Kim Ark, a person of Chinese descent. In that decision it also expounded upon the two exceptions to the acquisition of citizenship by birth as determined by the common law of England and made reference to an English case, Calvin’s case, which was decided by the English Court in the year 1608. Although the Hawaiian Kingdom courts have stated that the common law is not in force in this Kingdom, it did state that “…in construing our law the Court must be guided by those enactments and the decisions of American and English Courts.” In re Apuna, 6 Haw. 732 (1869).

In United States vs. Wong Kim Ark (1898), the U.S. Supreme Court ruled:

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith’ or ‘power,’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore naturalborn subjects. but the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.”

In the Calvin’s case (1608), the English Court stated: “…for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject of the King of England though he be born upon his soil;” and “if any of the King’s ambassadors in foreign nations have children…they are natural born subjects [of England], yet they are born out of the King’s dominion.”

Once a State is occupied, international law preserves the status quo of the occupied State as it was before the occupation began. To preserve the nationality of the occupied State from being manipulated by the occupying State to its advantage, international law only allows individuals born within the territory of the occupied State to acquire the nationality of their parents—jus sanguinis. To preserve the status quo, Article 49 of the Fourth Geneva Convention mandates that the “Occupying Power shall not…transfer parts of its own civilian population into the territory it occupies.” For individuals, who were born within Hawaiian territory, to be a Hawaiian subjects they must be a direct descendant of a person or persons who were Hawaiian subjects prior to the American occupation that began on January 17, 1893, which is when Queen Lili‘uokalani conditionally surrendered to the United States. All individuals born after the surrender to the present are Aliens who can only acquire the nationality of their parents. According to Professor von Glahn, “children born in territory under enemy occupation possess the nationality of their parents.”

According to the 1890 government census, Hawaiian subjects numbered 48,107, with the aboriginal Hawaiian, both pure and part, numbering 40,622, being 84% of the national population, and the non-aboriginal Hawaiians numbering 7,485, being 16%. Despite the massive and illegal migrations of foreigners to the Hawaiian Islands since 1898, which, according to the State of Hawai‘i numbered 1,302,939 in 2009, the status quo of the national population of the Hawaiian Kingdom is maintained.Therefore, under the international laws of occupation, the aboriginal Hawaiian population of 322,812 in 2009 would continue to be 84% of the Hawaiian national population. The 16% of non-aboriginal Hawaiian subjects will need to be determined by a census report.

Similar to the Hawaiian Kingdom, the Baltic States of Estonia, Latvia and Lithuania were occupied by the Russians for over half a century. In 1940, Russian intervention provided for the forced incorporation of these Baltic States into the U.S.S.R. In 1991, with the breakup of the Soviet Union, these Baltic States once again regained their independence and immediately had to deal with the pressing issue of citizenship in the aftermath of prolonged Russian occupation.

Roger Brubaker, author of the article Citizenship struggles in Soviet Successor States (1992), stated that Estonia adopted a model for defining the initial body of citizens as the restored State model. States who regained their former independence are called restored States, and as these States are not new there would be no need to redefine a new body of citizens, but rather utilize the laws that existed before the occupation to determine the citizenry.

Under this model, persons born in Estonia before the 1940 annexation and their descendants were recognized as having Estonian citizenship. This also included United States citizens who were the offspring of Estonians. Regarding the citizenry of the occupier, the Estonian government also applied the same view the 1898 U.S. Supreme Court had made in U.S. vs. Wong Kim Ark. It viewed all Russians who entered the country after the occupation in 1940, and their descendants, as illegal and could not claim Estonian citizenship. But if a Russian was born in Estonia before the occupation that person acquired citizenship. Latvia also adopted the restored State model. Therefore, it can be stated as a matter of law and based on contemporary examples, that the Hawaiian citizenry of today is comprised of descendants of Hawaiian subjects and those foreigners who were born in the Hawaiian Islands prior to January 17, 1893.

This exclusion of the Hawaiian citizenry is based upon precedence and law, but a restored Hawaiian government does have the authority to widen the scope of its citizenry and adopt a more inclusive model in the aftermath of prolonged American occupation. Brubaker stated that Lithuania adopted such a model. Under the inclusive model, the original citizenry of Lithuania was confirmed under the restored State model, but the foreigners, which included the Russians, were divided into two groups. The first group comprised of permanent residents who would be granted optional inclusion in the Lithuanian citizenry, while the second would be classified as aliens. The optional inclusion of the first group depended upon these residents meeting certain minimum requirements established by the Lithuanian government. (i.e. years of residency and/or language).

Despite over a century of illegal migration that exploded the Alien population from 41,873 in 1890, of which U.S. citizens merely number 1,928, to 918,639 in 2009, the population of Hawaiian subjects has remained intact with its ratio of 84% aboriginal Hawaiians, who can readily be determined, and 16% non-aboriginal Hawaiians yet to be determined. This should alleviate the concern of aboriginal Hawaiian subjects who previously thought they were the minority, when in fact and law they remain the majority of the Hawaiian citizenry. Only Hawaiian subjects, whether aboriginal or non-aboriginal, have political rights, which means they alone can participate in government. §784 of the Hawaiian Civil Code states, “No alien shall be allowed to vote for representatives of the people.”

Hawaiian Journal of Law and Politics publishes Volume no. 5

Posted on by
7

From the Editor of the Hawaiian Journal of Law and Politics, Professor Kalawai‘a Moore:

Since the attempted coup of 1887, history written on Hawaiʻi has been a highly political endeavor of a specific nature. The insurgents from the time of 1887 through the time of the United States coup de main of 1893 and beyond began writing a defensive justification narrative for their illegal actions as historical narratives. One among many of the distortions of historical truth has included a re-describing of the role of American missionary advisors in the earlier part of the 19th century as the driving force and main actors behind the development and running of a constitutional government of a nation-state. The motivations for the crafting of a history against which  enormous primary evidence exists to the contrary was the aim at winning public and material support from the United States, and elsewhere to secure and maintain control over Hawaiʻi. Losing control over Hawaiʻi for the insurgents could have led to prosecution for treason under the law an offense that was punishable by death. Exemplifying this false narrative, Lorrin Thurston, one of these insurgents, wrote:

Hawaiian Christianization, civilization, commerce, education, and development are the direct product of American effort. Hawaii is in every element and quality which enters into the composition of a modern civilized community, a child of America.

As Hawaiians began to enter the battle of historical narratives in the 1970s, 80s, and 90s, certain facts of history put forward in American hegemonic writings were latently taken up as foundational truths in the writings and teachings by Hawaiians themselves. One example of a false truth from the insurgents that was carried forward in Hawaiian written work was the false fact of the annexation of Hawaiʻi as a fait acompli. As a fact, the “annexation” of Hawaiʻi has been proven wrong in newer scholarship of the past 25 years. The so called annexation of Hawaiʻi is no longer an accepted fact by most Hawaiian scholars. Another example of a historical fallacy that still circulates today and still has several Hawaiian proponents, is the idea above that the early missionaries were the driving force behind the development and running of the Hawaiian Kingdom’s constitutional government. Professor Jon Osorio provides an example of a Hawaiian indigenist thesis based on this idea. He wrote:

Accordingly, the very formation of a national entity in 1840 under the rudiments of Euro-American constitutions victimized the Native Hawaiians, consigning them to unfamiliar and inferior roles as wage laborers. Caucasian newcomers proceeded to transform the economic and social systems, marginalizing the Native both demographically and symbolically.

Hawaiian indigenist writings about missionary primacy were a part of many theses that argued that the nation-state, law, and governance were western impositions and detrimental to ethnic Hawaiians in line with a thinking that these Hawaiians acquired through theoretical learning with other indigenous peoples. More recent Hawaiian written histories have unearthed primary source materials that show another vantage point that posits missionary involvement came in the middle of an already ongoing process of Hawaiian governmental and nation-state development.

The newer findings show that Hawaiʻi became a unified, centralized state under Kamehameha I with its own organized state structure, adopting features of British styled government long before missionary arrival. Under Kaʻahumanu’s rule, a set of Christian modelled laws were adopted through a dialectical process with missionary advisors, but the Prime Minister was clearly in charge. At the request of King Kamehameha III, Kauikeaouli, the government adopted a secular character. Former missionaries were taken in as advisors and played different roles in the development of Hawaiian governance and were eventually replaced during the reigns of King Kamehameha IV, Alexander Liholiho, and King Kamehameha V, Lota Kapuaiwa, by “Hawaiian chiefs and nonmissionary westerners.” The missionaries were taken on as advisors under Kaʻahumanu and Kauikeaouli, but were not the decision makers, and Hawaiian government was fashioned in a hybrid manner. The Hawaiian Kingdom government was aboriginal Hawaiian controlled and fashioned in a dialectical process based on traditional Hawaiian customs and relationships.

The first set of missionaries while trying to carry out their mission, served at the will of the chiefs. Their ability to stay on the islands was dependent on chiefly permission. The chiefs found the missionaries useful as teachers of new technologies and information. Some of these missionaries like William Richards, and Gerrit Judd left the mission and served the high chiefs full time as advisors on foreign relations and government. This first generation of missionaries spoke of themselves and were spoken of by others as  loyal servants to the chiefs and the Hawaiian Kingdom. Sai notes this distinction between this first generation of missionaries and their descendants in his article “Synergy Through Convergence: The Hawaiian State and Congregationalism,” quoting the famous author Nordhoff, who was working as a correspondent for the newspaper Hawaii Holomua,

They, the fathers, stood by the natives against all foreign aggression. The elder Judd, a very able man, gave time, ability and his own means to the restoration of Hawaiian independence when it was attacked by an English admiral; his degenerate son, the present chief justice [Albert F. Judd] was part of the conspiracy which upset the government he had sworn to support and, himself a native of Hawaii, is active in the movement to destroy the State which his father gave a long life to establish defend and maintained.

This fifth volume of the Hawaiian Journal of Law and Politics contains a number of articles that engage further the agency and independence of aboriginal Hawaiian chiefly rulers, and their abilities to both stay ahead of any political intrigue, and to employ missionary knowledge of literacy and teaching to their advantage. We also see further the distinction that can be made between the first generation of missionaries and their loyalty to the Crown and government, versus some of their descendants, who formed an ideological position of white cultural supremacy, undertaking a treasonous course of action. This later generation showed a completely different attitude and approach to the Hawaiian Crown. Sai’s work further shows how aboriginal Hawaiian leadership from the Hawaiian Patriotic League clearly saw this distinction between the generations referring in testimony to many of the insurgent second and third generationers as the “faithless sons of missionaries and local politicians angered by continous political defeat.”

In the first article by Dr. Susan Corley “Liholiho’s Kauaʻi Coup,” we get an opportunity to understand better the character of King Kamehameha II, Liholiho, as ruler. Corley details an attempt by Hiram Bingham, a missionary of the first mission, to strengthen his position in the islands by enlisting the aid of Kaumualiʻi, King of the Island of Kaua‘i, suggesting the chief fund a mission to Tahiti. Liholiho intercedes using the occassion to outmaneuver both Bingham and Kaumualiʻi, taking full personal control of the island of Kauaʻi, and making it clear to the missionaries that he “held power and control over their ability to continue” their mission. Corley describes Liholihoʻs maneuvering and leadership as a matter of “guile where his father would have used force.”

In “‘He Kaula Uila’: Hawaiian Educational Policy in the 19th Century ‘Ke Aʻo Palapala ma Nā Aloaliʻi a me Nā Kuaʻāina,’” Brandi Jean Nalani Balutski starts with a more well-known excerpt from a speech made by Kauikeaouli upon ascension to the throne “he aupuni palapala koʻu” (mine is a kingdom of learning). Balutski details the chiefly adoption of the technology of literacy and education as formal policy of the early Hawaiian Kingdom and an ethos that education be taken up by all class levels. Balutski details the life journeys and roles of five aboriginal Hawaiian men who returned to Hawai‘i with these first missionaries acting as intermediaries between them and the ruling chiefs. Balutski shows how Thomas Hopu  became the personal teachers for the high chiefs and their children. Others like George Humehume, son of Kaumuali‘i, became advisors for his father and their inner circle of chiefs who saw possible advantages in adopting literacy as a political tool. Despite initial concerns about the missionaries from the United States, their value in teaching literacy and the chiefs understanding of the value of literacy as a technology in dealing with various outsiders, paved the way for the acceptance of the American missionaries because of the benefit that literacy could hold “to control the encounter with foreigners, to favor their interests and those of their lineages, to express their understanding of the world, and to shape that world to their ends.”

In “Synergy Through Convergence: The Hawaiian State and Congregationalism,” Dr. Keanu Sai details further the distinction between the role of early American missionaries in support of the Hawaiian Kingdom government, and the later generations of “faithless sons of missionaries.” He starts by examining the rhetoric in history and political writings that has built a “myth of missionary control,” and contrasts these fabrications through use of the writings by aboriginal Hawaiians and supporters from the late 19th century, including a direct response by Kauikeaouli himself refuting a question of missionary control, and affirming his use of missionaries as teachers of literacy and translators between the government and foreign representatives. Sai shows a link between the congregationalism of the American missionaries and the influence of governmental reform in the Hawaiian Kingdom calling it a synergy whereby the “forces of both coalesced and each saw the other as beneficial to their own goals.” Sai illustrates the benefits to both sides during this time period to show further the false narratives that have been put forth stating that the “continuation of Americanism [was] initiated by the missionaries since 1820.”

In “Apartheid Hawai’i: California Colony at Wahiawā,” Dr. Ronald Williams Jr. continues his work showing the rise of white supremacist thought and action in Hawaiʻi starting with the break in local protestantism from congregationalism to a philosophy of “minority, White rule over both church and state” in the 1860s and 70s. Proponents of this change fomented an outright opposition to King Kalākaua during his reign, and supported the complete seizure of the government through U.S. facilitation in 1893, and then the full establishment of white oligarchic rule into the Territorial era in the 1900’s. Williams documents the efforts to establish a California Colony of white families in Wahiawā starting in 1899. This effort was made possible through earlier legislation called the 1895 Land Act introduced by Sanford Dole utilizing the newly confiscated Crown Lands for the express purpose of promoting “the immigration of permanent settlers of a character suitable for the building up of our population.” Williams documents the push by the government of the illegal Republic to settle white families on 1,350 acres of land before the “annexation” of the islands was completed. He further details the ideological drive behind the Dole government’s push to establish and support this community, which unashamedly sought to build a community of social and educational institutions based on the idea of racial segregation expressed as an “American way” as exemplified by the American South. The Wahiawā colony ultimately fails because of the greed of some of its backers and the success of pineapple farms like the one run by James Dole, which priced other small farmers out of the market.

In “The Decline of Hawaiian Language Common Schools During the Hawaiian Kingdom From 1864 to 1893: A Statistical Analysis,” Dr. Larson Ng walks through a quantitative data study of Hawaiian Kingdom government records on Hawaiian language common schools, English language schools, and independent schools looking at funding, attendance, and population statistics. Ng walks us through a brief history of the school system in the Hawaiian Kingdom and some of the theories in circulation that have tried to link causation of the decrease in aborginal attendence at Hawaiian language common schools to ideologies of “settler colonialism.” Ng’s regression analysis shows that the most important statistical factor in the decline of Hawaiian language common school attendance was the decline in the aboriginal Hawaiian population. He noted that funding disparities were a matter of aboriginal Hawaiian governmental prioritization, rather than an ideological imposition by outsiders.

In my article I provide an analysis of Dr. Kehaulani Kauanui’s book Paradoxes of Hawaiian Sovereignty: Land, Sex, and the Colonial Politics of State Nationalism, in which I call Kauanui’s work a remonstrance against Hawaiians turning toward the Hawaiian Kingdom, and a lament over the waning of Hawaiian indigeneity. I provide a critical analysis that Kauanui lacks any “deep evidentiary work on the matters” she covers, “leaving key source perspectives and facts out in some arguments.” I provide critical comment on her continued misuse and mentoring of the term “colonization” and her focus on the “state” instead of “government” as showing a lack of political and legal disciplinary awareness, and when taken with her attempt to reinvent the term “indigenous” for use in the Hawaiian context shows a kind of paradigm paralysis. I provide additional comment that Kauanui adds no insight of value in her examination of the Mahele in her book. She simply represents old, debunked theories and facts, adding only a new form of rhetorical approach which in my words, states that, “Almost every page in this chapter by Kauanui is inaccurate, and all of her imported theories irrelevant.” On matters of gender and sexuality, Kauanui starts from that earlier mentioned perspective that the missionaries controlled and were in charge of the lives, government, and state creation of the chiefs in Hawai’i, which I disprove. I agree that there were changes that were made in laws on marriage, coverture, and sex that need to be examined and cautioned against. I add that Kauanui is really engaged in a fight over the gender and sexual politics of today seeking to head off losses or maintain rights through closing off the Hawaiian Kingdom as political possibility. Toward building her case, I show that Kauanui left out key information and misarranged key source quotes that would otherwise show subversion, and ambivalence toward conservative laws on gender and coverture. Kauanui does not reveal that coverture was fought, slowly dismantled, and then repealed. And does not reveal that her own sources show women as “jural subjects” and in one case did not show how her source stated that they could not agree that women’s status diminished with government reform. I also caution against obscuring source material to argue politics, and I point out that, “It can be said that there were heteropatriarchal forces at work in the Hawaiian Kingdom, but one cannot say that the Hawaiian Kingdom is a heteropatriarchal government, [society], nor state.”

The last two sections of this volume of the Hawaiian Journal of Law and Politics include two documents recently published by the Council of Regency as the Occupied Government of the Hawaiian Kingdom. One entitled “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” and the second, “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government.” Both documents were written by the acting Government, whose officers consist of Dr. David Keanu Sai, Kauʻi P. Sai-Dudoit, and Dexter Keʻeaumoku Kaʻiama, Esq.

In the “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” the acting Government lays out in detail the historical and legal justifications for the actions needed to move from an illegal State of Hawaiʻi government to military government under international humanitarian law and the law of occupation.

A detailed history is provided from state recognition of the Hawaiian Kingdom in 1843 through the U.S. invasion and overthrow of the Hawaiian Kingdom government, to the U.S. military occupation of the Hawaiian Kingdom. The Plan lays out “essential” and “implied” tasks including the setting up of a temporary administrator of the laws of the occupied state, the establishment of a military government, the proclamation of provisional laws, the disbanding of the State of Hawaiʻi Legislature and County Councils, setting up a temporary administrator of public buildings, real estate, forests, and agricultural estates that belong to the occupied state, and tasks that protect the institutions of the occupied state.

In the “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government,” the acting Government lays out plans for the withdrawal of U.S. armed forces, dealing with the Hawaiian state territory, reparations, and the seizing of property. The plan lays out details on the transition from a military government to the government of the Hawaiian Kingdom; the creation and ratification of a Treaty of Peace, the conducting of a national census, the convening of a Legisltive Assembly, who will then, based on the Hawaiian Kingdom constitution, begin to put together the rest of the Hawaiian Kingdom government. These two plans are the only plans of action for the restoration of the Hawaiian Kingdom government. The historical importance of including these documents as part of the Hawaiian Journal of Law and Politics can not be understated and it was the work of the Council of Regency that was able to get the Permanent Court of Arbitration to acknowledge the continued existence of the Hawaiian Kingdom as an independent State that generated the impetus in the formation of the Hawaiian Society of Law and Politics at the University of Hawai‘i at Mānoa and the establishment of the Hawaiian Journal of Law and Politics.

We close these Editor’s notes with a mahalo (gratitude) to the authors for their work examining topics of interest and importance, and we look forward to more academic work and discussion that persists toward that Kuleana of Scholarship we endeavor to uphold.

The Significance and the Importance of the Two Operational Plans of the Council of Regency

Posted on by
13

When dealing with a 130-year crisis of a prolonged and illegal American occupation of the Hawaiian Kingdom, planning is a crucial component that informs where we are today and where we want to be tomorrow. An operational plan is informed by due diligence of the situation, which is a gathering of information relevant to the situation at hand and how it got to the current situation. In the military, this is colloquially known as gathering intel before you come up with a battle plan.

Due diligence is “depending on the relative facts of the special case.” It is the assessment of a situation before a decision should be made. When due diligence is done, the person doing it must be mindful of their own biases and assumptions. To gather information through one’s own bias is what is called “confirmation bias” where the gatherer of information only selects information that would confirm his/her own biases. This is also called cherry picking.

In the Hawaiian situation, there is an abundance of assumptions that are false such as the Hawaiian Islands were colonized by the United States in the nineteenth century, and, as a colonized people, Native Hawaiians are an Indigenous People by definition of the United Nations. United Nations defines Indigenous Peoples as tribal nations that exist with an independent State not of their own making. Arriving at this conclusion was done through confirmation bias.

The Council of Regency sought to gather information through the lens of both the laws of the Hawaiian Kingdom and international law that includes international humanitarian law and the law of occupation. It was through this process that revealed that the Hawaiian Kingdom, which existed as an internationally recognized sovereign and independent State continued to exist since November 28, 1843, despite the illegal overthrow of its government by the United States on January 17, 1893. This continued existence stemmed from the international principle of inalienability of sovereignty of a State, and the only way a State can alienate its sovereignty is by its consent through a treaty of cession with the acquiring State. There exists no such treaty, therefore, the Hawaiian State continues to exist.

It was based on this premise that the government was restored as a Council of Regency in 1997 to provisionally represent the Hawaiian State both domestically and abroad. The actions to be taken by the Council of Regency would be in line with its strategic plan that entailed three phases. Phase I—verification of the Hawaiian Kingdom as an independent State and a subject of international law. Phase II—exposure of Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels. Phase III—restoration of the Hawaiian Kingdom as an independent State and a subject of international law. Phase III is when the American occupation comes to an end.

Phase I was achieved when the Permanent Court of Arbitration (PCA), before establishing the arbitration tribunal in Larsen v. Hawaiian Kingdom on June 9, 2000, acknowledged the continued existence of the Hawaiian State, and the Council of Regency as its government. Phase II, exposure of the Hawaiian State, was initiated during oral hearings on December 7, 8 and 11, 2000, at the PCA in The Hague. Phase II continued at the University of Hawai‘i at Mānoa when the Chairman of the Council of Regency, David Keanu Sai, entered the political science graduate program, where he received a master’s degree specializing in international relations and public law in 2004 and a Ph.D. degree in 2008 on the subject of the continuity of Hawaiian Statehood while under an American prolonged belligerent occupation since 1893.

The exposure through academic research also motivated historian Tom Coffman to change the title of his 1998 book from Nation Within: The Story of America’s Annexation of the Nation of Hawai‘i, to Nation Within—The History of the American Occupation of Hawai‘i. Coffman explained the change in his note on the second edition and took a quote from Dr. Sai’s law article A Slippery Path Towards Hawaiian Indigeneity. Coffman wrote:

I am compelled to add that the continued relevance of this book reflects a far-reaching political, moral and intellectual failure of the United States to recognize and deal with the takeover of Hawai‘i. In the book’s subtitle, the word Annexation has been replaced by the word Occupation, referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then with the word occupation.

In making this change, I have embraced the logical conclusion of my research into the events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step by a growing body of historical work by a new generation of Native Hawaiian scholars. Dr. Keanu Sai writes, “The challenge for … the fields of political science, history, and law is to distinguish between the rule of law and the politics of power.” In the history of the Hawai‘i, the might of the United States does not make it right.

It took the Council of Regency just over 20 years to change the conversation from colonization and indigenous peoples rights to military occupation and the rights of Hawaiian subjects under the law of occupation. With the shifting of the historical lens, legal consequences began to emerge especially with the involvement of Professor Matthew Craven from the University of London, SOAS, School of Law, who authored a legal opinion on the Continuity of the Hawaiian Kingdom as a State under international law; Professor William Schabas from Middlesex University London, School of Law, and a renowned expert in international criminal law, who authored a Legal Opinion on War Crimes related to the United States belligerent occupation of the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, who authored Legal Opinion on the authority of the Council of Regency of the Hawaiian Kingdom.

Both the Operational Plans for Transitioning the State of Hawai‘i into a Military Government and Transitioning the Military Government to the Hawaiian Kingdom Government, which will bring the prolonged American occupation to an end, is a culmination of years of research and exposure and is a subset of plans under phase II of the strategic plan. As such we are moving toward the end of phase II and preparing for phase III that will bring the 130-year crisis to an end.

The two operational plans are clear as to where we are, where we need to get to, and the path to get there. The essential tasks and the implied tasks in each of the plans are measurable, and, most importantly, flexible when achieving the tasks. They allow flexibility to adjust to issues unforeseen such as time and allocation of resources. The Council of Regency established a 3-year window for the occupation to come to an end, but it doesn’t prevent unforeseen and extenuating circumstances to adjust the timeline. When the American occupation of Japan began in 1945, it was thought that it would last 3 years. But circumstances extended the occupation an additional 4 years. The same could happen in the Hawaiian situation, but the Council of Regency needed to set an initial timeline of 3 years.

BREAKING NEWS: Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government to bring the American Occupation to an End made Public

Posted on by
18

On September 12, 2023, the Council of Regency approved its Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government. The Council of Regency has drafted a proposed Treaty of Peace, and sees that the occupation can come to an end in 3 years. This operational plan assumes that the military government has been established in accordance with its August 14, 2023, Operational Plan for Transitioning the State of Hawai‘i into a Military Government and moves it to the next phase where the occupation will come to an end. These operational plans are comprehensive and incorporates Hawaiian Kingdom laws and the law of occupation.

The mandate of the Council of Regency is through all legal means, compel the United States and the State of Hawai‘i to begin to comply with international humanitarian law and the law of occupation in order to bring the prolonged occupation to an end. It has been 23 years since the Council of Regency returned from oral hearings held at the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom arbitration proceedings in December of 2000.

As part of phase II of its strategic plan—exposure of the Hawaiian Kingdom as a State under international law, the Council of Regency focused on academic research to not only draw attention to the fact that the Hawaiian Kingdom continues to exist, but how international humanitarian law and the law of occupation provides the process for the occupation to eventually come to an end. At first glance, for the State of Hawai‘i to transform itself into a military government would appear counter intuitive to a problem that came about by the U.S. military itself when they invaded the Hawaiian Kingdom on January 16, 1893.

The U.S. military is the most regulated organization in the United States. It operates like it is its own government with the exception of a legislative body. It has a general that oversees all branches of the military, a chain of command with superiors at every level to the lowest ranking soldier, and a judicial system to hold to account soldiers who violate regulations called the Uniform Code of Military Justice.

What the U.S. military did when they invaded Hawaiian territory and caused the overthrow of the Hawaiian Kingdom government was unlawful, and admitted being so by President Grover Cleveland, but that didn’t mean it ended then and there. When a government of another country is militarily overthrown by an “act of war,” it triggers duties and obligations upon the invader that are not just military regulations, but also international law called international humanitarian law and the law of occupation.

The law of occupation in 1893 obligated the United States military to establish a military government to administer the laws of the occupied State until a treaty of peace has been negotiated and agreed upon that will either bring the occupation to an end or the occupied country could cede itself to the former occupying State. To not administer the laws of the occupied State by a military government is a war crime by omission, and the imposition of American laws over Hawaiian territory is the war crime of usurpation of sovereignty during military occupation. There are no statutes of limitations for war crimes.

Until there is a treaty of peace, the occupation continues and war crimes continue to be committed with impunity. There is no treaty of peace whereby the Hawaiian Kingdom ceded itself to the United States. The Hawaiian Kingdom continues to exist because of the international principle of inalienable sovereignty, and the Permanent Court of Arbitration acknowledged this in Larsen v. Hawaiian Kingdom in 1999.

A military government is also a misnomer. It is not a government comprised of the military, but rather the civilian government of the occupied State where only the head is replaced by a military governor, which is the highest-ranking Army officer that is in effective control of the territory of an occupied State. That officer is the State of Hawai‘i Adjutant General, Major General Ken Hara. According to Army regulations, the 322nd Civil Affairs Brigade at Fort Shafter, Island of O‘ahu, advises military governors on the function of transitioning governance—military government. U.S. Army Field Manual 3-57 is the manual for Civil Affairs units.