Here follows the letter Office of Hawaiian Affairs CEO Kamana‘opono Crabbe submitted to the Department of State dated May 5, 2014. What will be gleaned from the letter itself is that the CEO was well within his vested power to seek clarity on the question of the continued existence of the Hawaiian Kingdom.
Aloha,
In response to the letter submitted today to U.S. Secretary of State John F. Kerry by the Office of Hawaiian Affairs CEO Dr. Kamanaopono Crabbe, we have created a statement of support. If you are interested in signing onto this document please see the attachment or go to the online site:
http://www.thepetitionsite.com/525/987/222/he-manao-pono-a-statement-of-support/
Please disseminate this widely throughout our community.
In solidarity,
Kekuewa Kikiloi
__
Kekuewa Kikiloi, Ph.D.
Assistant Professor
Kamakakūokalani Center for Hawaiian Studies
Hawaiʻinuiākea School of Hawaiian Knowledge
University of Hawaiʻi at Mānoa
2645 Dole Street Honolulu HI 96822
After the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe submitted a formal request to Secretary of State John Kerry seeking clarification on the legal status of Hawai‘i under international law, all nine OHA Trustees yesterday signed a letter to the Secretary of State, stating:
“We understand that you received a letter from Office of Hawaiian Affairs Chief Executive Officer Kamana‘opono M. Crabbe, PhD dated May 5, 2014. The contents of that letter do not reflect the position of the Board of Trustees of the Office of Hawaiian Affairs or the position of the Office of Hawaiian Affairs. That letter is hereby rescinded.”
Did the Trustees even read Dr. Crabbe’s letter? How do you rescind a letter that seeks clarification for risk management purposes. You can’t. The only person that can rescind the letter is the CEO himself, and only when the risks identified have been found to not be risks in the first place. Another word for this is fiduciary duty.
This morning’s front page article in the Star-Advertiser reported that Trustee Chairwoman Colette Machado said “Crabbe exceeded his authority as chief executive officer that requires him to consult the board on such matters.” Is Dr. Crabbe’s request for clarification a management issue or a board issue. Does the CEO need Board approval to ask questions? What is the position of the Board of Trustees of the Office of Hawaiian Affairs? We don’t want clarification? The so-called rescind letter is not only odd, but it is disingenuous and has nothing to do with Dr. Crabbe’s letter. It also raises the question of who is pulling the strings.
After carefully reviewing Dr. Crabbe’s letter, he did not state or even imply that he was taking any position on whether or not the Hawaiian Kingdom continues to exist. He merely sought clarification on a legal issue that the Department of Justice’s Office of Legal Counsel is more than capable of answering. If there is any position taken by Dr. Crabbe its responsible management and the well-recognized principle “risk management.” His letter begins with:
“As the chief executive officer and administrator for the Office of Hawaiian Affairs, being a governmental agency of the State of Hawai‘i, the law places on me, as a fiduciary, strict standards of diligence, responsibility and honesty. My executive staff, as public officials, carry out the policies and directives of the Trustees of the Office of Hawaiian Affairs in the service of the Native Hawaiian community. We are responsible to take care, through all lawful means, that we apply the best skills and diligence in the servicing of this community. It is in this capacity and in the interest of the Office of Hawaiian Affairs I am submitting this communication and formal request.”
The performance of risk assessment begins with identification of risks. Once the risk or risks have been determined the management can choose to avoid the risk, reduce the risk, share the risk or retain the risk. After the option is made, management then calls for a plan for contingencies, create safeguards, and, lastly, to monitor.
Dr. Crabbe has clearly taken the path to avoid the risk by seeking clarification from the State Department and the Department of Justice’s Office of Legal Counsel.
From his letter he specifically states the risks began to surface when one of his executive managers attended a presentation and panel discussion at the University of Hawai‘i Law School featuring former Hawai‘i governor John Waihe‘e, III, senior Law Professor Williamson Chang and political scientist Dr. Keanu Sai. The law student chapter of the American Constitutional Society sponsored the presentation. Dr. Crabbe provided Secretary of State Kerry an online link to view the video of the law school presentation.
Crabbe wrote, “The presentations of Professor Chang and Dr. Sai provided a legal analysis of the current status of Hawai‘i that appeared to undermine the legal basis of the Roll Commission, and, as alleged in the panel discussions, the possibility of criminal liability under international law. Both Professor Chang and Dr. Sai specifically stated that the Federal and State of Hawai‘i governments are illegal regimes that stem from an illegal and prolonged occupation by the United States as a result of the illegal overthrow of the Hawaiian Kingdom government. As a government agency of the State of Hawai‘i this would include the Office of Hawaiian Affairs, and by enactment of the State of Hawai‘i Legislature, it would also include the Roll Commission. Both Act 195 and U.S. Public Law 103-150, acknowledges the illegality of the overthrow.”
Here are some quotes from senior Law Professor Chang:
“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.” (3:01 min/sec.)
“If you don’t have legal power over a territory, you’re governing without jurisdiction.” (4:20 min/sec.)
“…there’s no treaty between the United States and Hawai‘i by which Hawai‘i was acquired by the United States…” (4:41 min/sec.)
“A joint resolution, as an act of Congress, cannot acquire another country …If the United States could acquire Hawai‘i then the House of Nobles and the Legislative Assembly of Hawai‘i could acquire the United States.” (4:54 min/sec.)
“If two sovereigns are equal … one cannot acquire the other by its own laws.” (5:17 min/sec.)
“If Congress cannot, by Joint Resolution in 1898, acquire Hawai‘i unilaterally, it cannot do so in 1959.” (9:42 min/sec.)
“So in short, the United States by its own hands admits that it didn’t acquire the Hawaiian Islands, and all those Hawaiians, who have been saying the United States doesn’t have jurisdiction, have been right.” (11:25 min/sec.)
“So the annexation, that we all admit that nothing can be achieved without the United States going along with it, that’s the 900 lbs. elephant in the room. But we have to come in with the best leverage we have, and the best leverage we have is a hundred years of being lied to, being misrepresented, being told that we were part of the United States, and that has been legally false.” (17:19 min/sec.)
“…we’re all in this boat together in this journey of knowledge, and when I talk about the state of emergency, being the United States, how it is able to govern us for a hundred years without putting guns to our heads, it’s us. We’re the problem, the law school is the problem. Why, because judges and lawyers have a duty of candor and truth. Judges, on their own, have to tell the courts, tell the attorneys that there is no jurisdiction. It’s a duty of zealous representation for attorneys to present the best defense, and isn’t it the best defense that there’s no jurisdiction.” (1:36:41 hr/min/sec.)
Here some quotes from political scientist Dr. Keanu Sai:
“Without a treaty, the United States has enacted “internal laws,” by its Congress, imposed in Hawai‘i…1898 Joint Resolution of Annexation, 1900 Territorial Act, 1959 Statehood Act, 1993 Joint Resolution of Apology for the 1893 Overthrow” (1:37:17 hr/min/sec.)
“Now the first and foremost restriction imposed by international law upon a State is that it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside of its territory except by virtue of a permissive rule derived from international custom or from a convention.” (1:36:53 hr/min/sec.)
“military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.” (1:13:19 hr/min/sec.)
Even former governor and chairman of the Native Hawaiian Roll Commission Waihe‘e was in agreement with Dr. Sai’s analysis that Hawai‘i is not a part of the United States. Waihe‘e told the audience:
“I have absolutely no doubt that Hawai‘i is in an illegal occupation, I have absolutely no doubt. I mean, you’ve got to be illiterate not to finally get to that point.” (1:19:04 hr/min/sec.)
Can a CEO of the Office of Hawaiian Affairs take this lightly, especially when the Chairman of the Native Hawaiian Roll Commission himself stated he has no doubt that Hawai‘i is occupied and that you’ve got to be illiterate to not see it. Dr. Crabbe correctly states:
“These matters have raised grave concerns with regard to not only the Native Hawaiian community we serve, but also to the vicarious liability of myself, staff and Trustees of the Hawaiian Affairs, and members of the Native Hawaiian Roll Commission. The community we serve, the Trustees, and many of my staff members, to include myself, and the members of the Roll Commission are Native Hawaiians, who are direct descendants of Hawaiian subjects of the Hawaiian Kingdom. And as a State of Hawai‘i governmental agency, it would also appear that I am precluded from seeking any opinion on the veracity of these allegations from our in house counsel or from the State of Hawai‘i Attorney General, because there would appear to exist a conflict of interest if these allegations are true.”
Dr. Crabbe then provided the questions he’s seeking to be answered as part of the process of risk management.
• 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?”
Dr. Crabbe’s conclusion in his letter clearly speaks to risk management and his determination to avoid the risk of criminal liability under international law. He stated, “While I await the opinion from the Office of Legal Counsel, I will be requesting approval from the Trustees of the Office of Hawaiian Affairs that we refrain from pursuing a Native Hawaiian governing entity until we can confirm that the Hawaiian Kingdom, as an independent sovereign State, does not continue to exist under international law and that we, as individuals, have not incurred any criminal liability in this pursuit.”
At no point has Dr. Crabbe taken a position for the Office of Hawaiian Affairs and nor has he taken a position of whether the Hawaiian Kingdom continues to exist. He’s seeking clarification from a federal agency who is more than capable of providing the answers. As chief executive officer, Dr. Crabbe is responsible for the protection of the staff at the Office of Hawaiian Affairs, which includes the Trustees, and to the Native Hawaiian community OHA serves. The Trustees’ so-called rescind letter is a blatant attempt to undermine the very duty Dr. Crabbe was appointed to do as the CEO of the Office of Hawaiian Affairs. The Trustees’ do not manage the Office of Hawaiian Affairs, the CEO does.
The irony is that Dr. Crabbe’s request for clarification is to protect the Trustees, even from themselves.
HONOLULU (HawaiiNewsNow) – Does the Kingdom of Hawai’i exist today — and are we all subject to its rules? Those questions have triggered an internal dispute within the Office of Hawaiian Affairs.
OHA’s Chief Executive Officer created a firestorm Friday when word spread he sent a letter to the Secretary of State asking for an official opinion on whether the Hawaiian Kingdom still exists as an independent sovereign state under international law. Problem is, it appears no one else at OHA knew about or agreed with the letter, stirring an internal controversy that has raised concerns the inquiry could derail or delay Kana’iolowalu nation-building efforts.
Officials confirm the letter was quietly sent out on Monday by OHA CEO Dr. Kamana’opono Crabbe, in which he requested a formal legal opinion from the Justice Department.
“I will be requesting approval from the Trustees of the Office of Hawaiian Affairs that we refrain from pursuing a Native Hawaiian governing entity until we can confirm that the Hawaiian Kingdom as an independent sovereign State, does not continue to exist under international law and that we, as individuals, have no incurred any criminal liability in this pursuit,” Crabbe wrote.
OHA Chair Colette Machado tells Hawaii News Now she and fellow trustees only learned of the letter Friday afternoon.
“Our whole goal is to establish a Native Hawaiian governing entity and we are very close in achieving that. The Trustees fully support this, that’s why we’re quite surprised — how did our Chief Executive Officer not understand this by sending the letter to the state Department especially to the Secretary John Kerry? That’s why we had to respond quickly on a unanimous position to rescind that letter, because it is not an official position of OHA,” Machado said by phone from Washington, D.C., where she and Crabbe are attending a meeting about the upcoming World Conference on Indigenous Peoples at the invitation of the Department of State.
All nine trustees signed off on retracting the letter, which Machado confirms has already been sent to the Department of Justice.
“I want to assure the Hawaiian people that the Board of Trustees has not changed its position towards facilitating a process to reorganize a Native Hawaiian governing entity,” Machado said.
Native Hawaiian Roll Commission Chair, former Governor John Waihe’e, says he was also surprised by the letter.
“For all of us that know our history, there’s no doubt in our mind that the government of Queen Lili’uokalani was illegally overthrown and that the United States annexation of Hawaii was not done properly, was not done legally. In fact, this was admitted by the United States Congress when they passed the resolution — the apology resolution — in 1993. Any of us that know our history, know that we don’t need to ask anybody, know whether or not any of these things were proper — what we need to do is go about organizing ourselves and beginning to assert our own self governance. I don’t know what motivated Kamana’opono to do this, but personally I think it’s sort of disempowering. It’s a disempowering tactic to ask for permission to pursue your own destiny,” Waihe’e said.
More than 125,000 people have signed up for Kana’iolowalu to pursue a Native Hawaiian self-governing entity, an effort which OHA is financing.
“That’s more people than all the labor unions in Hawai’i combined,” said Waihe’e. “As far as we’re concerned, the Roll Commission is concerned, we’re still proceeding forward.”
Hawaii News Now was unable to reach Dr. Crabbe directly Friday. Officials confirm he scheduled a press conference for next week Monday to explain the inquiry, but now that the trustees have rescinded that letter it’s unclear if the press conference will still be happening.
To view Dr. Crabbe’s request letter, click here.
HONOLULU (AP) – Office of Hawaiian Affairs CEO Kamanaopono Crabbe says he will seek approval from the agency’s trustees to refrain from pursuing a Native Hawaiian governing entity.
Crabbe says the agency would put nation building efforts on hold until officials are able to confirm the Hawaiian Kingdom doesn’t continue to exist under international law.
Crabbe outlined his proposal in a May 5 letter to Secretary of State John Kerry. The agency released a copy of the letter Friday.
The letter says an analysis from scholars alleging federal and state governments are illegal regimes has raised concerns. The analysis says OHA trustees and Native Hawaiian Roll Commission members may be criminally liable under international law.
Crabbe is asking the State Department to request an opinion from the Justice Department’s Office of Legal Counsel.
HONOLULU — Office of Hawaiian Affairs CEO Kamanaopono Crabbe says he will seek approval from the agency’s trustees to refrain from pursuing a Native Hawaiian governing entity.
Crabbe says the agency would put nation building efforts on hold until officials are able to confirm the Hawaiian Kingdom doesn’t continue to exist under international law.
Crabbe outlined his proposal in a May 5 letter to Secretary of State John Kerry. The agency released a copy of the letter Friday.
The letter says an analysis from scholars alleging federal and state governments are illegal regimes has raised concerns. The analysis says OHA trustees and Native Hawaiian Roll Commission members may be criminally liable under international law.
Crabbe is asking the State Department to request an opinion from the Justice Department’s Office of Legal Counsel.
FOR IMMEDIATE RELEASE
MAY 09, 2014
WASHINGTON, D.C. (May 9, 2014) – The Office of Hawaiian Affairs top executive submitted a formal request with the U.S. Department of State requesting a legal opinion from the U.S. Attorney General’s Office of Legal Counsel addressing the legal status of the Hawai‘i under international law.
The Office of Legal Counsel drafts legal opinions of the U.S. Attorney General and also provides its own written opinions and oral advice in response to requests from the various agencies of the Executive Branch, which includes the Department of State.
Trustees and staff of the Office of Hawaiian Affairs are in Washington, D.C., at the invitation of the Department of State for a consultation with representatives of the federal government, federally recognized tribes and other indigenous peoples of the United States on May 9. The topic of the meeting is the World Conference on Indigenous Peoples, to be held at the United Nations, September 22-23, 2014. The meeting will take place at the U.S. Department of State, 23rd Street entrance, between C and D Streets, N.W., Washington, D.C.
In a letter addressed to Secretary of State John F. Kerry, OHA Chief Executive Officer Dr. Kamana‘opono Crabbe, described his request as a very important question that needs to be answered from an agency that is not only qualified but authorized to answer, saying that it is addressing very grave concerns of OHA’s activities in its efforts toward nation building.
“As the chief executive officer and administrator for the Office of Hawaiian Affairs, being a governmental agency of the State of Hawai‘i, the law places on me, as a fiduciary, strict standards of diligence, responsibility and honesty,” Crabbe said. “My executive staff, as public officials, carry out the policies and directives of the Trustees of the Office of Hawaiian Affairs in the service of the Native Hawaiian community. We are responsible to take care, through all lawful means, that we apply the best skills and diligence in the servicing of this community.”
Crabbe explained the action taken was prompted when one of his staff attended a presentation and panel discussion at the William S. Richardson School of Law on April 17, 2014 that featured former Hawai‘i Governor John Waihe‘e, III, Chairman of the Native Hawaiian Roll Commission, senior Law Professor Williamson Chang, and Dr. Keanu Sai, a political scientist. Click here to view a video of the Law School presentation and panel discussion.
“The presentations of Professor Chang and Dr. Sai provided a legal analysis of the current status of Hawai‘i that appeared to undermine the legal basis of the Roll Commission, and, as alleged in the panel discussions, the possibility of criminal liability under international law. Both Professor Chang and Dr. Sai specifically stated that the Federal and State of Hawai‘i governments are illegal regimes that stem from an illegal and prolonged occupation by the United States as a result of the illegal overthrow of the Hawaiian Kingdom government.” Crabbe said. “As a government agency of the State of Hawai‘i this would include the Office of Hawaiian Affairs, and by enactment of the State of Hawai‘i Legislature, it would also include the Roll Commission. Both Act 195 and U.S. Public Law 103-150, acknowledges the illegality of the overthrow.”
According to Crabbe, “These matters have raised grave concerns with regard to not only the Native Hawaiian community we serve, but also to the vicarious liability of myself, staff and Trustees of the Office of Hawaiian Affairs, and members of the Native Hawaiian Roll Commission. The community we serve, the Trustees, and many of my staff members, to include myself, and the members of the Roll Commission are Native Hawaiians, who are direct descendants of Hawaiian subjects of the Hawaiian Kingdom.”
Crabbe said he wanted to seek an opinion on the veracity of these allegations from its in house counsel or from the State of Hawai‘i Attorney General, but felt he was prevented because there would appear to be a conflict of interest if these allegations were true.
In his letter, Crabbe said, “because the Department of State is the United States’ executive department responsible for international relations and who also housed diplomatic papers and agreements with the Hawaiian Kingdom, I am respectfully submitting a formal request to have the Department of State request an opinion from the Office of Legal Counsel, Department of Justice, addressing the following questions:
• 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?”
A press conference is scheduled for Monday, May 12, at 10:00 a.m. when OHA’s Chief Executive Officer Dr. Crabbe returns from Washington, D.C.
Click here to download the request letter.
IMPORTANT NOTE: Dr. Crabbe’s letter specifically states:
“For your consideration, I have enclosed Dr. Sai’s law journal article published in the Journal of Law and Social Challenges that compares federal recognition under the Akaka bill and the international laws of occupation. Act 195 is the State of Hawai‘i’s version of the Akaka bill. Dr. Sai argues that Native Hawaiians are not indigenous people of the United States, but rather nationals of an occupied State. In addition, I’m am also enclosing a brief authored by Dr. Sai and Professor Matthew Craven from the University of London, SOAS, Law School, titled “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom;” a DVD packet with booklet of the Larsen v. Hawaiian Kingdom, Permanent Court of Arbitration, The Hague, Netherlands (1999-2001); a Complaint filed with the President of the United Nations Security Council in 2001 (without exhibits); a Protest and Demand filed with the President of the United Nations General Assembly in 2012 (without exhibits); a Referral submitted with the Prosecutor of the International Criminal Court at the Hague, Netherlands, in 2013, calling upon the Prosecutor for the investigation of war crimes alleged to have been committed in Hawai‘i (without exhibits); and a complaint for war crimes filed with the Philippine government under its universal jurisdiction alleging that one of our Trustees of the Office of Hawaiian Affairs, Ms. S. Haunani Apoliona, committed a war crime in her private capacity as a member of the Board of Directors for the Bank of Hawai‘i (without exhibits).”
“While I await the opinion from the Office of Legal Counsel, I will be requesting approval from the Trustees of the Office of Hawaiian Affairs that we refrain from pursuing a Native Hawaiian governing entity until we can confirm that the Hawaiian Kingdom, as an independent sovereign State, does not continue to exist under international law and that we, as individuals, have not incurred any criminal liability in this pursuit.”
# # #
Media Contact: Garett Kamemoto
Communications Manager
808-594-1982
garettk@oha.org
War crimes are actions taken by individuals, whether military or civilian, that violates international humanitarian law, which includes the 1907 Hague Conventions, 1949 Geneva Conventions and the Additional Protocols to the Geneva Conventions. War crimes include “grave breaches” of the 1949 Fourth Geneva Convention, which also applies to territory that is occupied even if the occupation takes place without resistance. Protected persons under International Humanitarian Law are all nationals who reside within an occupied State, except for the nationals of the Occupying Power. The International Criminal Court and States prosecute individuals for war crimes.
War Crimes: Destroying or seizing the [Occupied State’s] property unless such destruction or seizure be imperatively demanded by the necessities of war
In 2006, the United States Army disclosed to the public that depleted uranium (DU) was found on the firing ranges at Schofield Barracks on the Island of O‘ahu. It subsequently confirmed DU was also found at Pohakuloa Training Area on the Island of Hawai‘i and suspect that DU is also at Makua Military Reservation on the Island of O‘ahu. The ranges have yet to be cleared of DU and the ranges are still used for live fire. This brings the inhabitants who live down wind from these ranges into harms way because when the DU ignites or explodes from the live fire, it creates tiny particles of aerosolized DU oxide that can travel by wind. And if the DU gets into the drinking water or oceans it would have a devastating effect across the islands.
The following video and information is provided by Kamakako‘i: Cutting Edge.
The information below has been consolidated and summarized primarily from publicly available documents on the U.S. Nuclear Regulatory Commission’s web-based “Agencywide Documents Access and Management System” (ADAMS). A comprehensive listing of the original documents related to U.S. Army depleted uranium licensing in Hawai‘i can be found by going to http://adams.nrc.gov/wba/ and doing a search of “Docket Number 04009083.” The date and “accession” reference number for each document is provided in the filename of each downloadable document.
DEPLETED URANIUM BACKGROUND:
Depleted Uranium (DU) (external link) is a byproduct of the nuclear energy and atomic weapon industries. Because it has been altered, DU is less radioactive than natural uranium, which occurs naturally in the environment. DU is forty percent more dense than lead, yet lighter than other comparable materials, and has civilian uses such as in medical applications, as well as for ballast in aircraft and boats. DU is used in military applications as ballast for spotting rounds and as armor and weaponry because it has the ability to pierce other kinds of armor, self-sharpen, and ignite on impact at very high temperatures.
DEPLETED URANIUM AND THE ARMY IN HAWAI‘I:
According to Army documents, between 1962 and 1968, the Army used DU in M101 spotting rounds for the Davy Crockett Weapon system, a low-yield battlefield nuclear device. The body of the M101 spotting round contained 6.2 ounces of DU that allowed soldiers to simulate the flight path of the munitions fired from the Davy Crockett Weapon system. Although not an atomic explosive, M101 spotting rounds contained a small amount of explosive charge that created a puff of smoke to allow training soldiers to locate the point of impact for a round. Remnants of the M101 rounds were rediscovered during unexploded ordnance clearance at the Schofield Barracks impact area in August 2005, and again following prescribed burns in September 2006.
LICENSE APPLICATION:
In November 2008, the U.S. Army submitted an application to the U.S. Nuclear Regulatory Commission for a materials license to possess depleted uranium at military installations where the Davy Crockett M101 spotting round was used in training activities. In Hawai‘i, the U.S. Army application covered impact areas (where access is restricted due to the presence of in-field hazards, including unexploded ordnance) within training ranges located at Schofield Barracks on O‘ahu and the Pohakuloa Training Area on Hawai‘i Island. The license was requested to cover the possession and maintenance of depleted uranium remaining in the field from the 1960s training. Due to sparse training records (full document with appendices can be found here (external link)), the amount of DU and the distribution of rounds within each training range could not be determined, so the Army sought to license the 125 kilograms of DU from 714 spotting rounds that the Army believed it had fired at Schofield Barracks and Pohakuloa Training Area.
ENFORCEMENT ACTION:
In response to a request filed by a Hawai‘i Island resident, the Nuclear Regulatory Commission initiated an enforcement investigation against the U.S. Army for its possession of DU without a materials license, following the expiration of its previously held license in April 1978. On August 1, 2011, the NRC issued a notice of violation to the Army for its possession of DU at training ranges located at Schofield Barracks and the Pohakuloa Training Area from spotting round fragments of the M101 Davy Crockett weapon system, fired at Army training ranges during the 1960s. The NRC considered the violation to be significant, but did not impose a civil penalty due to the corrective actions proposed by the Army to control access into areas suspected of containing DU.
LICENSE EXEMPTION REQUEST:
During its extended negotiations with the Nuclear Regulatory Commission over the conditions of a DU possession license, the U.S. Army formally applied for an exemption for its in-field DU at Schofield Barracks and Pohakuloa Training Ranges, by letter dated September 10, 2012. Through information provided in its original request and a later February 6, 2013 response, the Army argued that it had met its burden of showing that the exemption would not “endanger life or property, or the common defense and security and [would be] otherwise in the public interest.” The NRCdenied the Army’s request for a license exemption.
DU POSSESSION LICENSE ISSUED:
On October 23, 2013, the Nuclear Regulatory Commission issued to the U.S. Army a materials license for DU located at Schofield Barracks and Pohakuloa Training Area. In addition to the conditions contained in the license, the NRC incorporated the commitments, representations, and statements contained in the Army’s original license application, the Physical Security Plan, and the Radiation Safety Plan. The materials license also requires the Army to provide the NRC with an air sampling plan and a plant sampling plan for its review and approval. In accordance with its materials license and air sampling plan, the Army conducted training that included high-explosive fire into the radiological control area at Schofield Barracks in February 2014, with an NRC inspector present.
MEMORANDUM
March 12, 1998
TO: SUBJECTS OF THE KINGDOM
FROM: OFFICE OF THE REGENT
RE: SUFFRAGE OF FEMALE SUBJECTS
On March 12, 1997, at a public meeting held at the Queen Lili‘uokalani Children Center at Halona, it was brought to the attention of this office by a female subject of the Kingdom, that there is no provision in the law that bars female subjects from voting in the election for Representatives of the Kingdom. She asserted that although the “voter qualification” statute specifically relates to the male gender, §15, chapter III, title I, provides, in part, that “…every word importing the masculine gender only, may extend to and include females as well as males.” Based upon the dubious nature of this statute in its relation toward both genders, I have diligently researched the election laws and have arrived at the following conclusion.
§783, article XXXII, Civil Code of the Hawaiian Islands, Compiled Laws of 1884, p. 221, provides that every “…male subject of the Kingdom who shall have paid his taxes, who shall have attained the age of twenty years, and shall have been domiciled in the Kingdom for one year immediately preceding the election, and shall know how to read and write, if born since the year 1840, and shall have caused his name to be entered on the list of voters of his district, as hereinafter provided, shall be entitled to one vote for Representative or Representatives of that district; provided, however, that no insane or idiotic person, or any person who shall have been convicted of any infamous crime within this Kingdom unless he shall have been pardoned by the King, and by the terms of such pardon have been restored to all the rights of a subject, shall be allowed to vote; and no other person than those qualified as in this section provided shall be allowed to vote at any election for Representatives to the Legislative Assembly of this Kingdom.”
“The intention of the makers of a statute is frequently to be collected from the cause or necessity for the statute; and whenever this intention can be discovered it ought to be followed with reason and discretion in the construction of the statute, although such construction may seem contrary to the letter of the statute.” See Rixman v. Goodale, 1 Haw. 298, 300 [536, 540] (1856); Shillaber v. Waldo, 1 Haw. 21, 25, [31, 38] (1848).
Pursuant to §12, chapter III, title I, Civil Code of the Hawaiian Islands, Compiled Laws of 1884, p. 3, the statute provides that one “…of the most effectual ways of discovering the true meaning of the law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.” Therefore in order for this office to ascertain the intent of this statute as it relates to the Representative body, a careful examination of the old laws must first be done in order to determine the reason and spirit of their enactment.
In the year 1839 His Majesty King Kamehameha III declared protection for the persons and private rights of all his people from the highest to the lowest. In 1840 he granted the first Constitution by which he declared and established the equality before the law of all his subjects, Chiefs and people alike. By that Constitution, he voluntarily deprived himself of some of his powers and attributes as an absolute Sovereign, and granted certain political rights upon his subjects, admitting them to a share with himself in legislation and government. See Estate of His Majesty Kamehameha IV, 2 Haw. 720 (1864). The Constitution of 1840 specifically provides a provision respecting the Representative Body, by stating, in part, to wit, that there “…shall be annually chosen certain persons to sit in council with the Nobles and establish laws for the nation. They shall be chosen by the people…” These political rights that were conferred upon all subjects of the Kingdom were not limited to a specific gender, but rather upon his “people” who comprised the Chiefly class and the Commoner class.
On November 2, 1840, a statute providing the means of electing the Representative body in accordance with the requirements of the Constitution, was enacted by the House of Nobles and signed into law by the King. Section 3 of this election statute provides that should “…any man forge another’s name as a signature to a letter written as above…he shall be fined ten dollars for every name thus criminally written.” See chapter II, Of the Representative Body, Laws of 1842 (Old Laws). When this provision of a male gender is compared with the original provision of respecting the Representative body as stated in the Constitution, the latter does not disqualify the female gender, but merely states that certain persons are to be chosen to sit in council with the Nobles in order to establish laws for the nation. The Constitution does not specify that only men can vote for Representatives. On the contrary, the Constitution repels the conclusion of excluding the female gender from participating in the Legislative body, when that Constitution specifically provided for certain women to serve in the government, namely, Kekauluohi as Premier, and Hoapiliwahine, Kekau‘onohi, Konia, and Keohokalole as members of the House of Nobles.
Since that first statute relating to the Representative body was enacted on November 2, 1840, in conformity with the Constitution of October 8, 1840, the following Statutes were passed by the Legislative Assembly and signed into law affecting the House of Representatives:
Careful examination of the Organic laws and Statutes which affect the Representative body of the Kingdom fails to disclose any provision precluding the female gender from participating in the electoral process, except for insane or idiotic persons or persons convicted of an infamous crime without a pardon by the Monarch. See §783, article XXXII, Civil Code of the Hawaiian Islands, Compiled Laws of 1884, p. 221.
In conclusion, the intent of the election statute was to have a Representative Body chosen by the people in order to help establish laws for the nation together with the King and Chiefs, and not a Representative Body to be chosen exclusively by men. This is in line with the intention of the Declaration of Rights of 1839, and the granting of the first Constitution, 1840, that “…conferred certain political rights upon his (King Kamehameha III’s) subjects, admitting them to a share with himself in legislation and government.” See Estate of His Majesty Kamehameha IV, 2 Haw. 720 (1864). According to Black’s Law Dictionary, 6th Ed., p. 1325, political rights are defined as the “…power to participate, directly or indirectly, in the establishment or administration of government, such as the right of citizenship, that of suffrage, the right to hold public office, and the right of petition.”
The issue here is not a question of whether Hawaiian women can or cannot participate in the election of Representatives or serving as a candidate for the House of Representatives, but whether there is any provision in the election laws that preclude Hawaiian women from participating. If no such provision exists, as the case be, then Hawaiian women do have a right to participate in the electoral process under their political right, and that the male gender referred to in the “qualifications of electors” does not preclude the female gender, provided the female is a subject of the Kingdom, of the age of 20 and is neither an idiot, an insane person, or a convicted felon.
David Keanu Sai
Regent, pro tempore
In the Fall 2014 APTN television in Canada will be airing six one-hour TV documentaries of the television series Native Planet. Episode 4 was shot in the Hawaiian Islands. In this episode, Host Simon Baker travels to Hawai‘i to examine the growing sovereignty movement and how it helped halt construction of the largest public infrastructure project in Hawaii’s history. Here is a trailer for that episode.
When the United Nations was established in 1945 one of its goals was to address the colonial possessions of the allied countries who prevailed during World War II. Article 73(e) of the UN Charter required these countries to transmit information regarding their territorial possessions and the progress of these territories towards a full measure of self-government. The term “self” means for oneself and not imposed, and “government” means a system of governing or administration. These colonial possessions did not have a government of their own and came to be known as non-self-governing territories.
The process of achieving “self-government” is called “self-determination.” According to the United Nations Repertoire of the Practice of the Security Council, “Article 1(2) establishes that one of the main purposes of the United Nations, and thus the Security Council, is to develop friendly international relations based on respect for the ‘principle of equal rights and self-determination of peoples.’ The case studies in this section cover instances where the Security Council has discussed situations with a bearing on the principle of self-determination and the right of peoples to decide their own government, which may relate to the questions of independence, autonomy, referenda, elections, and the legitimacy of governments.”
According to UN General Assembly Resolution 1541 (XV), a non-self-governing territory “can be said to have reached a full measure of self-government by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State.” In other words, a non-self-governing territory was never a sovereign independent State, never in association with an independent State, or was never integrated with an independent State.
According to Dr. James Summers, Peoples and International Law (p. 210), “No conditions were set for self-government by independence, but conditions were attached to integration and free association. Free association…was to be established by the free and voluntary choice of the people concerned expressed by informed and democratic means. The individuality and culture of the territory had to be respected and its people had the right to determine their internal constitution without interference. This status, moreover, was not necessarily permanent and could later be changed by democratic means. Integration…was to take place on the basis of equality: people were to have equal status, citizenship, fundamental rights, representations and participation.”
In 1946, prior to the passage of the Hawai‘i Statehood Act by the United States Congress, the United States misrepresented its relationship with Hawai’i when its permanent representative to the United Nations identified Hawai’i as a non-self-governing territory under the administration of the United States since 1898. In accordance with Article 73(e) of the U.N. Charter, the United States permanent representative erroneously reported Hawai’i as a non-self-governing territory, which implied Hawai‘i was never a “sovereign independent State.”
On June 4, 1952, United Nations Secretary General Trygve Halvdan Lie reported information submitted to him by United States Ambassador to the United Nations, Warren Austin, regarding American Samoa, Hawai‘i, Puerto Rico and the Virgin Islands. In this report, the United States Ambassador made no mention that Hawai‘i was an independent State since 1843 and that its government was illegally overthrown by U.S. forces, which was later settled by an executive agreement through mediation and exchange of notes. The representative also failed to disclose diplomatic protests that succeeded in preventing the second attempt to annex the Islands by a treaty of cession in 1897. Instead, the representative provided a picture of Hawai‘i as if it were a non-self-governing territory. The report stated,
“The Hawaiian Islands were discovered by James Cook in 1778. At that time divided into several petty chieftainships, they were soon afterwards united into one kingdom. The Islands became an important port and recruiting point for the early fur and sandalwood traders in the North Pacific, and the principal field base for the extensive whaling trade. When whaling declined after 1860, sugar became the foundation of the economy, and was stimulated by a reciprocity treaty with the United States (1896).
American missionaries went to Hawaii in 1820; they reduced the Hawaiian language to written form, established a school system, and gained great influence among the ruling chiefs. In contact with foreigners and western culture, the aboriginal population steadily declined. To replace this loss and to furnish labourers for the expanding sugar plantations, large-scale immigration was established.
When later Hawaiian monarchs showed a tendency to revert to absolutism, political discords and economic stresses produced a revolutionary movement headed by men of foreign birth and ancestry. The Native monarch was overthrown in 1893, and a republic government established. Annexation to the United States was one aim of the revolutionists. After a delay of five years, annexation was accomplished.
…The Hawaiian Islands, by virtue of the Joint Resolution of Annexation and the Hawaiian Organic Act, became an integral part of the United States and were given a territorial form of government which, in the United States political system, precedes statehood.”
In 1959, the Secretary General received a communication from the United States permanent representative that they will no longer transmit information regarding Hawai‘i because it was supposedly “integrated” into the United States under a new constitution that would take effect on August 21, 1959. This resulted in a General Assembly resolution stating it “Considers it appropriate that the transmission of information in respect of Alaska and Hawaii under Article 73e of the Charter should cease.”Evidence that the United Nations was not aware of Hawaiian independence since 1843 can be shown from the following statement by the United Nations’ Repertory of Practice of United Nations Organs, Extracts relating to Article 73 of the Charter of the United Nations, Supplement No. 1 (1955-1959), volume 3, at200, para. 101.
“Though the General Assembly considered that the manner in which Territories could become fully self-governing was primarily through the attainment of independence, it was observed in the Fourth Committee that the General Assembly had recognized in resolution 748 (VIII) that self-government could also be achieved by association with another State or group of States if the association was freely chosen and was on a basis of absolute equality. There was unanimous agreement that Alaska and Hawaii had attained a full measure of self-government and equal to that enjoyed by all other self-governing constituent states of the United States. Moreover, the people of Alaska and Hawaii had fully exercised their right to choose their own form of government.”
Although the United Nations passed two resolutions acknowledging Hawai‘i to be a non-self-governing territory that has been under the administration of the United States of America since 1898 and was granted “so-called” a full measure of self-governance in 1959, it did not affect the continuity of the Hawaiian State because, foremost, United Nations resolutions are not binding on member States of the United Nations, let alone a non-member State—the Hawaiian Kingdom. Professor Crawford explains, The Creation of States in International Law (p. 113), “Of course, the General Assembly is not a legislature. Mostly its resolutions are only recommendations, and it has no capacity to impose new legal obligations on States.” Secondly, the information provided to the General Assembly by the United States was distorted and flawed. In East Timor, Portugal argued that resolutions of both the General Assembly and the Security Council acknowledged the status of East Timor as a non-self-governing territory and Portugal as the administering power and should be treated as “givens.” The International Court of Justice, however, did not agree and in its judgment (p. 103) found “that it cannot be inferred from the sole fact that the above-mentioned resolutions of the General Assembly and the Security Council refer to Portugal as the administrating Power of East Timor that they intended to establish an obligation on third States.”
Even more problematic is when the decisions embodied in the resolutions as “givens” are wrong. Acknowledging this possibility, Professor Bowett, The Impact of Security Council Decisions on Dispute Settlement Procedures (p. 97), states, “where a decision affects a State’s legal rights or responsibilities, and can be shown to be unsupported by the facts, or based upon a quite erroneous view of the facts, or a clear error of law, the decision ought in principle to be set aside.” Marco Öberg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ (p. 892), also agrees and acknowledges that resolutions “may have been made on the basis of partial information, where not all interested parties were heard, and/or too urgently for the facts to be objectively established.” As an example, Öberg cited Security Council Resolution 1530, March 11, 2004, that “misidentified the perpetrator of the bomb attacks carried out in Madrid, Spain, on the same day.”
There exists a common misunderstanding that stems from Americanization, which promoted the lie that Hawai‘i was a colony of the United States, that Hawai‘i did not fully exercise “self-determination” in 1959 because there was no option for the people to choose to become a “sovereign independent State.” This has resulted in a paradoxical fringe movement of “re-inscription” onto to the Article 73(e) list of non-self-governing territories. The inherent contradiction of this argument is that in order to “re-inscribe” is to start from the premise that Hawai‘i was never a “sovereign independent State” in order to choose through a process of self-determination for Hawai‘i to be an “independent sovereign State.”
The underlying paradox to this argument is that to re-inscribe is to place the United States in a position of power as the administrator over a territory that is not a sovereign independent State, in order to negotiate with the United States to become a sovereign independent State. This is a contradiction, especially after the Permanent Court of Arbitration stated in its 2001 Larsen v. Hawaiian Kingdom Arbitral Award that Hawai‘i “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.”
There is no evidence in the history of international law where an already established sovereign independent State was ever considered a non-self-governing territory, because international law provides for the rule preserving the continuity of the Hawaiian Kingdom as a sovereign independent State even during an illegal and prolonged occupation.
Click here to view the article.
