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.”