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Author Archives: Hawaiian Kingdom
BREAKING NEWS: Police Officers Send Letter to Major General Hara to Comply with the Law of Occupation and Transform the State of Hawai‘i into a Military Government
In an unprecedented move by 37 Police Officers, both active and retired across the Hawaiian Islands, they have collectively called upon the State of Hawai‘i Adjutant General Army Major General Kenneth Hara to comply with international law and the law of occupation.
International law requires that since the State of Hawai‘i is in effective control of 10,931 square miles of Hawaiian territory, and the federal government is in effective control of less than 500 square miles, it is the State of Hawai‘i that is responsible for transforming itself into a military government. Under the law of occupation, a military government is responsible for temporarily administering the laws of the occupied State, the Hawaiian Kingdom, until a peace treaty has been agreed upon between the Hawaiian Kingdom and the United States. The peace treaty will bring the occupation to an end. In the meantime, a military government will enforce the laws of the Hawaiian Kingdom, and it is only through effective control of territory that it can enforce Hawaiian laws.
On January 17, 1893, the insurgents, calling themselves the executive and advisory councils under the armed protection of U.S. Marines, only replaced the Queen, her Cabinet of 4 Ministers, and the Marshal. Everyone in the executive and judicial branches of government were told to stay in place and sign oaths of allegiance to the new regime. The civilian government name was changed from the Hawaiian Kingdom Government to the provisional government. On July 4, 1894, the name was changed to the Republic of Hawai‘i.
After the United States unlawfully annexed the Hawaiian Islands in 1898, the name of the government was changed to the Territory of Hawai‘i in 1900. In 1959, the name was again changed to the State of Hawai‘i. The State of Hawai‘i is the civilian government of the Hawaiian Kingdom. Under international law, this civilian government’s executive and judicial branches of government continue with the exception of the legislative branch. Major General Hara, who would be called the Military Governor, only replaces civilian Governor Josh Green. Major General Hara is the highest Army general officer in the State of Hawai‘i command structure.
According to the U.S. Manual for Courts-Martial, a duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the Service. In this case, MG Hara’s duty is imposed upon him by Article 43 of the 1907 Hague Regulations, and U.S. Department of Defense Directive 5000.1, which states it is the function of the Army in occupied territories abroad to provide for the establishment of a military government pending transfer of this responsibility to the Hawaiian Kingdom Government when the occupation comes to an end. The Council of Regency’s Operational Plan for transitioning the State of Hawai‘i into a Military Government explains this in full.
On May 29, 2024, these 37 Police Officers mailed a letter to Major General Hara, Deputy Adjutant General Brigadier General Stephen Logan, and Staff Judge Advocate Lloyd Phelps explaining why they have taken this position. The letter stated:
We hope this letter finds you in good health and high spirits. We are writing to you on behalf of a deeply concerned group of Active and Retired law enforcement officers throughout the Hawaiian Islands, about the current governance of Hawaii and its impact on the vested rights of Hawaiian subjects under Hawaiian Law.
As you are well aware, the historical transition of Hawai‘i from a sovereign kingdom to a U.S. state is fraught with significant legal and ethical issues. The overthrow of the government of the Hawaiian Kingdom in 1893 and its subsequent annexation by the United States in 1898 continue to be an illegal act. The Hawaiian Kingdom was recognized as a Sovereign State by the Permanent Court of Arbitration in The Hague, Netherlands, in Larsen vs. Hawaiian Kingdom (https://pca-cpa.org/en/cases/35/).
At the center of the dispute, as stated on the PCA’s website on the Larsen case, was the unlawful imposition of American laws over Lance Larsen, a Hawaiian subject, that led to an unfair trial and incarceration. It was a police officer, who believed that Hawai‘i was a part of the United States and that he was carrying out his lawful duties, that cited Mr. Larsen, which led to his incarceration. That police officer now knows otherwise and so do we. This is not the United States but rather the Hawaiian Kingdom as an occupied State under international law.
It is deeply troubling that the State of Hawaii has not been transitioned into a military government as mandated by international law. This failure of transition places current police officers on duty that they may be held accountable for unlawfully enforcing American laws. This very issue was brought to the attention of the Maui County Corporation Counsel by Maui Police Chief John Pelletier in 2022. In their request to Chief Pelletier, which is attached, Detective Kamuela Mawae and Patrol Officer Scott McCalister, stated:
We are humbly requesting that either Chief John Pelletier or Deputy Chief Charles Hank III formally request legal services from Corporation Counsel to conduct a legal analysis of Hawai‘i’s current political status considering International Law and to assure us, and the rest of the Police Officers throughout the State of Hawai‘i, that we are not violating International Law by enforcing U.S. domestic laws within what the federal lawsuit calls the Hawaiian Kingdom that continues to exist as a nation state under international law despite its government being overthrown by the United States on 01/17/1893.
Police Chief Pelletier did make a formal request to Corporation Counsel, but they did not act upon the request, which did not settle the issue and the possible liability that Police Officers face.
Your failure to initiate such a transition may be construed as a violation of the 1907 Hague Regulations and the 1949 Geneva Convention, which outlines the obligations of occupying powers. Also, your actions, or lack thereof, deprive Hawaiian subjects of the protections and rights they are entitled to under Hawaiian Kingdom laws and international humanitarian law. According to the Geneva Convention, occupying powers are obligated to respect the laws in force in the occupied territory and protect the rights of its inhabitants. Failure to comply with these obligations constitutes a serious violation and can result in accountability for war crimes for individuals in positions of authority.
The absence of a military government perpetuates an unlawful governance structure that has deprived the rights of Hawaiian subjects which is now at 131 years. The unique status of these rights is explained at this blog article on the Council of Regency’s weblog titled “It’s About Law—Native Hawaiian Rights are at a Critical Point for the State of Hawai‘i to Comply with the Law of Occupation” (https://hawaiiankingdom.org/blog/native-hawaiians-are-at-a-critical-point-for-the-state-of-hawaii-to-comply-with-the-law-of-occupation/). It is imperative that steps be taken to rectify these historical injustices and ensure the protection of the vested rights of Hawaiian subjects.
We also acknowledge that the Council of Regency is our government that was lawfully established under extraordinary circumstances, and we support its effort to bring compliance with the law of occupation by the State of Hawai‘i, on behalf of the United States, which will eventually bring the American occupation to a close. When this happens, our Legislative Assembly will be brought into session so that Hawaiian subjects can elect a Regency of our choosing. The Council of Regency is currently operating in an acting capacity that is allowed under Hawaiian law.
We urge you to work with the Council of Regency in making sure this transition is not only lawful but is done for the benefit of all Hawaiian subjects. Please consider the gravity of this situation and take immediate action to establish a military government in Hawaii. Such a measure would align with international law and demonstrate a commitment to justice, fairness, and the recognition of the rights of Native Hawaiians. Thank you for your attention to this critical issue. We look forward to your prompt response and to any actions you will take to address these concerns.
The 37 names and ranks of Police Officers, that included both active and retired, is a very impressive list. The names are listed in order of rank, which includes a Police Chief, an Assistant Chief, a Deputy Chief, 2 Captains, 5 Lieutenants, 5 Detectives, 10 Sergeants, and 12 Officers. Alika Desha, a retired Honolulu Police Department Officer, signed the letter on behalf of the 36 named Police Officers. Desha was asked why did they send their letter to Major General Hara. He responded:
Having learned the truth about the illegal overthrow of Hawai‘i’s government and the continued illegal occupation of the United States in Hawai‘i has a profound impact on our Law Enforcement Officers enforcing US laws. Trying to get clarity with Corp Council on liability issues Officers face by enforcing laws of an invading country is like riding on a never ending merry go round.
There is a code of ethics that we as police officers understand that assist in guiding us throughout our life. Part of it says that it is our fundamental duty to serve mankind; to protect the innocent against deception and the weak against oppression or intimidation. An invading country thought that the truth can be hidden with cover-ups and decorations. But as time goes by, what is true is revealed, and what is fake fades away.
As Law Enforcement Officers we will continue to share the truth and fight the wrong.
The Police Departments trace their origin to May 4, 1847, when King Kamehameha III signed into law a Joint Resolution to amend “Act to Organize the Executive Departments of the of the Hawaiian Islands.” The highest ranking officer was the Marshal, who was also the Sheriff for the Island of O‘ahu. Upon the Marshal’s recommendation, the Governors of Hawai‘i Island, Maui, and Kaua‘i would appoint Sheriffs. Under the Sheriffs, the cadre of officers were called Constables.
CLARIFICATION: There is no Showdown between the U.S. Congress and Major General Hara’s Duty to Transform the State of Hawai‘i into a Military Government
The purpose of this blog of the Council of Regency is to provide accurate information to inform the people of Hawai‘i about the prolonged occupation of the Hawaiian Kingdom and the steps the Council of Regency are taking to eventually bring the American occupation to an end. Misinformation will not be tolerated, especially on matters that have severe consequences for the population that resides within the occupied State of the Hawaiian Kingdom.
It has been asserted, as a comment on the recent blog article “It’s About Law—Native Hawaiian Rights are at a Critical Point for the State of Hawai‘i to Comply with the Law of Occupation,” that there is now a showdown between U.S. Army Major General Kenneth Hara’s duty to transform the State of Hawai‘i into a Military Government and the plenary power of the U.S. Congress. There exists no such thing.
The Congress is the legislative branch of the Government of the United States whose authority includes the enactment of laws and providing oversight of the executive branch. The term plenary power refers to the complete or absolute authority, which is frequently used to describe the commerce power of the Congress. Complete or absolute authority means that only the Congress has this power of enacting commercial laws.
Of the three branches of the U.S. Government—the legislative, the executive, and the judicial, only the executive branch can exercise its authority outside of U.S. territory through the Department of State and the Department of Defense. In United States v. Curtiss-Wright Corporation (1936), U.S. Supreme Court explained:
Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.
On the subject of the limits of the Congress to enact laws, whether commercial laws or not, the U.S. Supreme Court, in the Curtiss-Wright case, also stated:
Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens (see American Banana Co. v. United Fruit Co., 213 U. S. 347, 213 U. S. 356), and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.
Because the Hawaiian Kingdom is foreign territory and cannot exist within the territory of the United States, Major General Hara’s duty to transform the State of Hawai‘i into a Military Government stem from him being a part of the executive branch, the U.S. Department of Defense. The presence of the United States can only be allowed under the strict guidelines and rules of the 1907 Hague Regulations and the 1949 Fourth Geneva Convention, and not the plenary power of the Congress. The transformation into a military government will bring the United States into compliance with “treaties, international understandings and compacts, and the principles of international law.”
It’s About Law—Native Hawaiian Rights are at a Critical Point for the State of Hawai‘i to Comply with the Law of Occupation
On April 26, 2024, the Minister of the Interior published a memorandum addressing the effects of an illegal occupation by the United States since January 17, 1893, the restoration of the Hawaiian Kingdom Government on February 28, 1997, the Permanent Court of Arbitration’s recognition of the continuity of the Hawaiian Kingdom and the Council of Regency as its government on November 8, 1999, exposure of the continuity of Hawaiian Kingdom Statehood since 2001, transforming the State of Hawai‘i into a Military Government, and the continuity of rights of Hawaiian subjects under Hawaiian Kingdom laws to land, healthcare, and fishing.
The Minister of the Interior’s purpose was to have the memorandum disseminated amongst the national population of the Hawaiian Kingdom so that they know certain rights they have under Hawaiian Kingdom law and to know the circumstances by which these rights can be exercised for their benefit. The exercising of these rights to land, healthcare, and fishing, would greatly enhance their lives and their families in Hawai‘i. Under the law of occupation, it is the responsibility of a Military Government that would ensure these rights can be exercised.
Now at 131 years of an illegal and prolonged occupation, the Hawaiian Kingdom is finally at the stage of actionable compliance with the law of occupation by the State of Hawai‘i, on behalf of the United States, setting the course to bring the American occupation to an end. This process begins when Army Major General Kenneth Hara, Director of the State of Hawai‘i Department of Defense, proclaims that the State of Hawai‘i has been transformed into a Military Government so that it will begin to administer the laws of the Hawaiian Kingdom that existed prior to the occupation on January 17, 1893, and the provisional laws proclaimed by the Council of Regency in 2014, so that these nineteenth century laws can be brought up to date. The proclamation stated:
And, We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.
On August 1, 2023, the Minister of the Interior published a memorandum that provides the formula for determining which laws of the United States, State of Hawai‘i, and Counties, presently being imposed in the territory of the Hawaiian Kingdom, shall be considered the provisional laws.
Why is this important for Native Hawaiians who comprise the majority of the national population of the Hawaiian Kingdom called Hawaiian subjects? Because the greatest dilemma facing Native Hawaiians today is not having a home and not having adequate health care. According to the Office of Hawaiian Affairs’ Native Hawaiian Health Fact Sheet 2017, “Today, Native Hawaiians are perhaps the single racial group with the highest health risk in the State of Hawai‘i. This risk stems from high economic and cultural stress, lifestyle and risk behaviors, and late or lack of access to health care.”
The cost of living under American control has placed Hawai‘i as the most expensive place in the United States to live. According to the Missouri Economic Research and Information Center in 2023, Hawai‘i has the highest cost of living in the United States with an index of 180.3. The national average index was at 100. The cost of living is calculated by combining the cost for groceries, housing, utilities, transportation, and health care. This reality forced Native Hawaiians to move to America, where they outnumber the population of Native Hawaiians in Hawai‘i. The U.S. Census report indicated that in 2020, there were a total of 680,442 Native Hawaiians, with 47 percent residing in Hawai‘i, and 53 percent residing in the United States.
The average cost of a home in Hawai‘i is $820,000.00, and health care insurance for a family of 4 is approximately at $1,500 a month. Under Hawaiian Kingdom laws, Native Hawaiians, who are called aboriginal Hawaiian subjects under Hawaiian law, are the recipients of free health care at Queen’s Hospital and at its outlets across the islands today. Aboriginal Hawaiian subjects are also able to acquire up to 50 acres of public lands at $20.00 per acre under the 1850 Kuleana Act, which has not been repealed. With the current rate of construction costs, which includes building material and labor, an aboriginal Hawaiian subject can build a 3 bedroom 1 bath home for $100,000.00, which is far less than the average cost of a home today.
Hawaiian Kingdom laws also provide for fishing rights that extend out to the first reef or where there is no reef, out to 1 mile, exclusively for all Hawaiian subjects and lawfully resident aliens of the land divisions called ahupua‘a or ‘ili, such as the ahupua‘a of Waimanalo and the ‘ili of Kuli‘ou‘ou. This is an important Hawaiian law because, since the American presence, anyone can access and deplete these resources from the exclusive rights of the residents of the ahupua‘a or ‘ili.
From the first reef or from the one nautical mile marker point out to twelve nautical miles, all Hawaiian subjects and lawfully resident aliens have exclusive access to economic activity, such as access to underwater resources and fishing. Once the United Nations Convention on the Law of the Sea is acceded to by the Council of Regency, this exclusive access to economic activity will extend out to 200 miles called the Exclusive Economic Zone.
The 2024-2025 State of Hawai‘i $19.2 billion budget, gives MG Hara the resources to transform the State of Hawai‘i into a Military Government by reallocating monies in line with returning to the status quo ante of the Hawaiian Kingdom and its institutions as they were prior to the American occupation. In particular, MG Hara can immediately allocate monies to the Queen’s Hospital so that Native Hawaiians have access to free healthcare that has been secured under Hawaiian Kingdom law.
Since the restoration of the Government of the Hawaiian Kingdom in 1997, the Council of Regency has been on a track of compelling the United States and the State of Hawai‘i to comply with the international law of occupation. Its three-phase strategic plan was framed in order to achieve this objective.
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 occurs when the American occupation comes to an end by a treaty of peace.
Critical to this strategy was to have a reputable international body recognize the continued existence of the Hawaiian Kingdom as a State under international law, which is phase 1. Phase 1 was not seeking international recognition of the Hawaiian Kingdom as a new State because recognition was already afforded in the nineteenth century. Rather, phase 1 was seeking the recognition of the Hawaiian Kingdom’s “continuity” as a State and its laws. The Regency knew that international law clearly provided for the Hawaiian Kingdom’s continued existence despite the illegal overthrow of its Government by the United States on January 17, 1893. What was needed, however, was to have an international body conclude, by an application of relevant international laws, that the Hawaiian State indeed “continues” to exist. Phase 1 would be a very complex legal situation to play out.
Because the State under international law is a legal entity, it needs a government to speak on its behalf no different than how a business corporation is a legal entity that needs a CEO and a Board of Directors to speak on its behalf. Without a physical body, the legal entity is silent but still legally exists. So, to get this matter before an international body, the Hawaiian Government had to first be in place in order to speak for the Hawaiian State. Another aspect to this, would be the legal competency for the Regency to be the lawful Government representing the Hawaiian State. This raises two issues, first the legal competency for the Regency to be established in accordance with Hawaiian Kingdom laws, and, second, whether the Regency needed diplomatic recognition to be the Government of the Hawaiian Kingdom.
Under international law, once recognition of the Hawaiian Kingdom as a sovereign and independent State was achieved in the nineteenth century, it was also the recognition of its government being a constitutional monarchy. Any successor Head of State since the original recognition of King Kamehameha III, as the Head of State, would not require diplomatic recognition so long as the successor became the Head of State in accordance with the laws of the Hawaiian Kingdom.
The legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather under the constitution and laws of the Hawaiian Kingdom. According to Restatement (Third) of Foreign Relations Law of the United States, “Where a new administration succeeds to power in accordance with a state’s constitutional processes, no issue of recognition or acceptance arises; continued recognition is assumed.”
Under Hawaiian law, the Council of Regency serves in the absence of the Executive Monarch. While the last Executive Monarch was Queen Lili‘uokalani, who died on November 11, 1917, the office of the Executive Monarch remained vacant under Hawaiian constitutional law. There was no legal requirement for the Council of Regency, being the successor in office to Queen Lili‘uokalani under Hawaiian constitutional law, to obtain recognition from the United States to be the government of the Hawaiian Kingdom.
The United States’ recognition of the Hawaiian Kingdom, as an independent State on July 6, 1844, was also a recognition of its government—a constitutional monarchy. Successors in office to King Kamehameha III, who at the time of international recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, Queen Lili‘uokalani in 1891, and the Council of Regency in 1997.
If the successor arose out of a revolution, which comes about through “extra-legal changes in government,” it would need diplomatic recognition as the de facto government that replaced the previous form of government. This is why the insurgency, calling itself the provisional government, needed diplomatic recognition as a de facto government by resident U.S. Minister John Stevens on January 17, 1893, to have any semblance of legality under international law. President Grover Cleveland, after investigating the overthrow, told the Congress, by message, on December 18, 1893:
When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had…declared it to exist. It was neither a government de facto [in fact] nor de jure [in law]. That it was not in such possession of the Government property and agencies as entitled it to recognition.
President Cleveland also undermined the status of the provisional government when he told the Congress, “the Government of the Queen…was undisputed and both the de facto and the de jure government.” In other words, they were not a successful revolution, and that the lawful government was the Hawaiian Kingdom as a constitutional monarchy. Instead, they were an insurgency and a puppet creation by the United States. On this note, the President told the Congress that the “provisional government owes its existence to an armed invasion by the United States.”
With the government in place since 1997, the legal complexities to achieve phase I were set and it played out at the Permanent Court of Arbitration (“PCA”) in The Hague, Netherlands. The PCA was established in 1899 by the United States and twenty-five other countries as an intergovernmental organization that provides a variety of dispute resolution services to the international community. In 1907, the 1899 Convention for the Pacific Settlement of International Disputes was superseded by the 1907 Convention for the Pacific Settlement of International Disputes. Presently, there are currently 122 countries that became contracting States to either the 1899 or the 1907 Conventions, which includes the United States.
On November 8, 1999, a dispute between Lance Paul Larsen, a Hawaiian subject, and the Hawaiian Kingdom was submitted to the PCA for settlement, which came to be known as Larsen v. Hawaiian Kingdom. Larsen was alleging that the government of the Hawaiian Kingdom, by its Council of Regency, should be liable for allowing the unlawful imposition of American laws. He alleged that these laws denied him a fair trial, which led to his incarceration.
Before the PCA could establish an arbitration tribunal to resolve the dispute, it had to verify that the Hawaiian Kingdom “continues” to exist as a State under international law and that its government is the Council of Regency. It did, and on June 9, 2000, the PCA established the arbitration tribunal comprised of three arbitrators. With phase 1 completed, phase 2 was initiated, which began the exposure of Hawaiian Statehood during oral hearings at the PCA on December, 7, 8, and 11, 2000.
Phase 2 was continued at the University of Hawai‘i at Mānoa, where for the past twenty-four years research, publications, and classroom instructions have begun to normalize the circumstance of the American occupation and the role of how the law of occupation will bring the American occupation to a close. This exposure phase will trigger compliance to the law of occupation by the State of Hawai‘i, but not the United States federal government.
The law of occupation obligates the entity of the occupying State, who is in effective control of a majority of the territory of the occupying State, to establish a military government to begin to administer the laws of the occupied State. When the United States occupied Japan from 1945 to 1952, General Douglas MacArthur served as the Military Governor overseeing the Japanese civilian government. The function of a military government is to provisionally administer the laws of the occupied State until there is a treaty of peace where the occupation will come to an end. When the 1951 San Francisco Peace Treaty with Japan came into force on April 28, 1952, the United States occupation of Japan came to an end.
In 1893, the United States did not establish a military government and it allowed their puppet governments, called the provisional government who later changed its name to the Republic of Hawai‘i on July 4, 1894, to impose its will on the population. After illegally annexing the Hawaiian Islands on July 7, 1898, the United States unlawfully imposed its own laws over the territory of the Hawaiian Kingdom through its puppets the Territory of Hawai‘i from 1900 to 1959, and the State of Hawai‘i from 1959 to the present. Under international law, all acts done by the United States are void and invalid because the United States does not have sovereignty over the Hawaiian Islands.
President Cleveland also stated to the Congress that the overthrow of the Government of the Hawaiian Kingdom was directly tied to an incident of war. He stated that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.” The overthrow of the Government of the Hawaiian Kingdom did not affect the sovereignty and legal order of the Hawaiian Kingdom as a State. U.S. Army Field Manual 27-10 regulates the actions taken by U.S. troops during the military occupation of a foreign State. Paragraph 358 states:
Being an incident of war, 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. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.
Only the Hawaiian Kingdom has sovereignty over the Hawaiian Islands and not the United States. International law does not allow two sovereignties to exist within one and the same State. In the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice explained:
Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—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 its territory except by virtue of a permissive rule derived from international custom or from a convention (treaty).
The permissive rule under international law that allows one State to exercise authority over the territory of another State is Article 43 of the 1907 Hague Regulations and Article 64 of the 1949 Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom. Instead, it imposed its will over the population of the Hawaiian Kingdom by unlawfully imposing its laws, which was at the center of the Larsen case. The PCA described the Larsen v. Hawaiian Kingdom arbitration case on its website as:
Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.
To bring compliance with the law of occupation and to allow the presence of the United States, by virtue of the permissive rule embodied in the 1907 Hague Regulations and the 1949 Geneva Convention, the State of Hawai‘i must be transformed into a Military Government. The determining factor as to what entity of the United States has the duty to become a Military Government is the “effectiveness” test. Article 42 of the 1907 Hague Regulations clearly states, “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” In other words, an entity cannot enforce the laws of the occupied State without being in effective control of the territory of the occupied State.
In this situation, it is the State of Hawai‘i and not the federal government that is in effective control of the majority of Hawaiian Kingdom territory, where the latter is only in effective control of less then 500 square miles while the former is in effective control of 10,931 square miles.
The officer of the State of Hawai‘i that has the duty to transform the State of Hawai‘i into a Military Government is the Director of the State of Hawai‘i Department of Defense U.S. Army Major General Kenneth Hara. Governor Josh Green is a civilian, and he has no direct link to the United States Department of Defense whose Directive no. 5100.01 explicitly states that one of the functions of the Army in “[occupied] territories abroad [is to] provide for the establishment of a military government pending transfer of this responsibility to other authority.”
Like General MacArthur, MG Hara would serve as the Military Governor. His actions, though, are constrained by international law and the law of occupation. International law also provides for the sharing of authority between the Military Governor and the Council of Regency. MG Hara does not have absolute authority. On this topic of shared authority, Professor Federico Lenzerini, in his legal opinion, explains:
Despite the fact that the occupation inherently configures as a situation unilaterally imposed by the occupying power—any kind of consent of the ousted government being totally absent—there still is some space for “cooperation” between the occupying and the occupied government—in the specific case of Hawai’i between the State of Hawai‘i and its Counties and the Council of Regency. Before trying to specify the characteristics of such a cooperation, it is however important to reiterate that, under international humanitarian law, the last word concerning any acts relating to the administration of the occupied territory is with the occupying power. In other words, “occupation law would allow for a vertical, but not a horizontal, sharing of authority […] [in the sense that] this power sharing should not affect the ultimate authority of the occupier over the occupied territory”. This vertical sharing of authority would reflect “the hierarchical relationship between the occupying power and the local authorities, the former maintaining a form of control over the latter through a top-down approach in the allocation of responsibilities”.
The Council of Regency has provided MG Hara an Operational Plan, with essential and implied tasks, to transform the State of Hawai‘i into a Military Government.
While the State of Hawai‘i has yet to transform itself into a Military Government and proclaim the provisional laws proclaimed by the Council of Regency, Hawaiian Kingdom laws as they were prior to January 17, 1893, continue to exist. Because of phase 2 there is a growing awareness among Native Hawaiians on not only the circumstances of the American occupation but also the denial of their rights secured under Hawaiian Kingdom law, which the American presence took away from them and their families.
MG Hara’s delay in proclaiming the establishment of the Military Government of Hawai‘i has now a direct impact on the rights of Native Hawaiian families and their ability to exercise and benefit from these rights under Hawaiian Kingdom law. According to international law, the enforcement of the law of occupation is with MG Hara, but the pressure placed upon MG Hara to enforce Hawaiian Kingdom laws are with Native Hawaiians whose rights are being denied by his inaction. In other words, MG Hara’s reluctance to carry out his duty can now be directly tied to Native Hawaiians lack of a home and adequate healthcare.
The Importance of Education and Getting the Facts Straight
As the country is moving ever so close to compliance with the law of occupation by the State of Hawai‘i, misinformation and disinformation must be addressed. It is understandable for the population of an occupied State not to fully grasp the situation of the Hawaiian Kingdom that it not only still exists as a country under international law but that it has been under a prolonged occupation for 131 years.
The reason why this occupation has lasted so long is because of denationalization through Americanization that formally began as a policy in 1906. Within three generations, the national consciousness of the Hawaiian Kingdom in the minds of its national population was erased. Replacing Hawaiian national consciousness with American national consciousness, together with its political ideologies and beliefs.
The recovery of Hawaiian national consciousness relies on accurate information through education. Just as education in the public and private schools, in the early twentieth century, was weaponized to erase Hawaiian national consciousness in the minds of school children, education today must be utilized, not weaponized, to restore it. It is a process, and, sometimes, an unpleasant process. This process of restoring Hawaiian national consciousness reveals the untruths and deceptions that were used to conceal an international travesty.
Many Hawaiian subjects served in the American military, whether voluntarily or by conscription, and it is naturally difficult to come to terms with this information. This difficulty to come to terms also applies to the entire population of Hawai‘i who were taught in school and were led to believe that Hawai‘i is a part of the United States and that they are American citizens.
The clashing of two sets of beliefs is called cognitive dissonance, which “is a psychological phenomenon that occurs when a person holds two contradictory beliefs at the same time.” The two beliefs that collide is Hawai‘i the 50th State of the American Union and the Hawaiian Kingdom as an occupied State since 1893. Both beliefs are mutually exclusive, which means that both cannot exist at the same time. The continued existence of the Hawaiian Kingdom as an occupied State cancels the existence of the State of Hawai‘i and the federal government. As the Permanent Court of International Justice, in the S.S. Lotus case, stated in its 1927 judgment:
Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—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 its territory except by virtue of a permissive rule derived from international custom or from a convention (treaty).
Since 1893, the United States has been exercising its authority over Hawaiian Kingdom territory without any ‘permissive rule derived from international custom or from a convention (treaty).’ If the United States, to include the State of Hawai‘i, has no lawful authority to exercise its power in Hawaiian territory, then everything that derives from its unlawful authority is invalid in the eyes of international law. This comes from the rule of international law ex injuria jus non oritur, which is Latin for “law (or right) does not arise from injustice.”
From this international rule—ex injuria jus non oritur, when applied to an occupied State, springs forth another rule of international law called postliminium, where all unlawful acts that an Occupying State may have been done in occupied territory are invalid and cannot be enforced when the occupation comes to an end. According to Professor Oppenheim, “If the occupant has performed acts which are not legitimate acts [allowable under the law of occupation], postliminium makes their invalidity apparent.”
Cognitive dissonance occurs when a person cannot let go of their former beliefs and tries to incorporate these beliefs into the new belief. This approach reveals contradictions, which is analogous to asserting baseball rules into a football game. It is either a football game or a baseball game. The football game is the American occupation of the Hawaiian Kingdom. The baseball game is Hawai‘i being the 50th State of the American Union. International laws are the rules of the football game, and American laws are the rules of the baseball game.
Within the United States, there is a Sovereign citizen movement that believe “the Uniform Commercial Code, which provides an interstate standard for such things as property ownership or bank accounts (and documents that they believe apply only to their strawman, such as drivers’ licenses, is a codification of the illegitimate commercial law ruling the United States.” Many groups of the Hawaiian sovereignty movement subscribe to this belief that sees the State of Hawai‘i as a corporation with no authority over free and sovereign citizens. Whether you agree or disagree with the Sovereign citizen movement, it has no place in the Hawaiian Kingdom being an occupied State that has suffered the devastating effects of the war crime of denationalization. To claim to be a sovereign citizen in a country that is a constitutional monarchy is a contradiction. You cannot have a monarchical system of governance when some of its people claim to be sovereign themselves.
The Uniform Commercial Code (UCC) was first published in 1952 as a joint project of the Uniform Law Commission, which is also called the National Conference of Commissioners on Uniform State Laws, and the American Law Institute. Its goal was to harmonize State law because commercial transactions extend beyond one State’s jurisdiction within the United States. Another goal of the UCC was to modernize contract law.
Having come from two private organizations, the UCC is not American law until the States and Territories of the United States adopt it. Forty-nine States, which includes the State Hawai‘i, as well as the District of Columbia, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands have adopted the UCC as their law with minimal changes. According to the website of the Uniform Law Commission, the “Uniform Commercial Code…is a comprehensive set of laws governing all commercial transactions in the United States. It is not a federal law, but a uniformly adopted state law.” As such, the UCC is an American law limited within the territorial jurisdictions of the forty-eight States of the American Union and three of its territories that adopted it.
The political economy of the United States and its UCC is not the political economy of the Hawaiian Kingdom prior to the American invasion in 1893. Political economy is the economic system and its governance by the political system of a State. The Hawaiian Kingdom was a progressive country when compared to the European States and their successor States on the American continent in the nineteenth century. Its political economy was not based on Adam Smith’s capitalism—Wealth of Nations, but rather Francis Wayland’s approach of a cooperative capitalism. According to Professor Mykkanen, Wayland was interested in “defining the limits of government by developing a theory of contractual enactment of political society, which would be morally and logically binding and acceptable to all its members.”
Wayland’s book, Elements of Political Economy, was the fundamental basis when written in the Hawaiian language and adjusted to apply to Hawaiian society accordingly by William Richards. The book was titled No Ke Kālai‘āina (English translation), which theorized governance from a foundation of Natural Rights within a Hawaiian agrarian society based upon capitalism that was not only cooperative in nature, but also morally grounded in Christian values. Contemporary historians and academics mistakenly assumed that American capitalism was the political economy of the Hawaiian Kingdom. Along with the unlawful imposition of American municipal laws after 1898, was the unlawful imposition of the American version of capitalism. Karl Marx, the renowned critical theorist, would have found the Hawaiian Kingdom’s political economy very appealing.
The Hawaiian Kingdom was the only country to adopt Wayland’s theory of economics. The United States and the United Kingdom based their economies on Smith’s theory of capitalism. Wayland’s form of capitalism was taught in the schools throughout the islands and framed political and economic discourse in the country. It also set in motion Hawai‘i’s mixed economy and the seed was planted for the Hawaiian Kingdom to become the first welfare State that would predate the Nordic countries by a century.
The welfare State is a “concept of government in which the state or a well-established network of social institutions plays a key role in the protection and promotion of the economic and social well-being of [its] citizens.” German Chancellor Otto von Bismark is credited with establishing the idea of a welfare State, and the Hawaiian Legislative Assembly would cite him regarding economic legislation and reform for the Kingdom. He was referred to as “Bisimaka,” which is Hawaiian for “Bismark.”
During military occupations of occupied States, the occupying State is only allowed limited authority to exercise its power by virtue the permissive rule under Article 43 of the 1907 Hague Regulations. Article 43 provides that once the occupying State has effective control of the territory of an occupied State, it is obligated to establish a military government in order to administer the laws of the occupied State. In other words, the United States should have established a military government on January 17, 1893, to administer temporarily administer Hawaiian Kingdom law after Queen Lili‘uokalani conditionally surrendered, and up until there is a treaty of peace between the United States and the Hawaiian Kingdom.
According to Professor Benvenisti, the “public order and civil life are maintained through laws, regulations, court decisions, administrative guidelines, and even customs, all of which form an intricate and balanced system.” This description reflects the legal order of a State, where sovereignty is the authority exercised by the government of the State in maintaining the ‘public order and civil live.’
For the Hawaiian Kingdom, the legal order is framed by the 1864 Constitution, as amended, which provides for the ‘laws, regulations, court decisions, administrative guidelines, and even customs’ to exist. The legal order of the occupied State includes the Hawaiian Kingdom’s political economy. The Hawaiian Kingdom’s legal order is explained in Chapter 1—Hawaiian Constitutional Governance (p. 59-94) in the ebook Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. U.S. Army Field Manual 27-10. Section 358 titled Occupation Does Not Transfer Sovereignty states:
Being an incident of war, 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. The exercise of these rights from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent to annex occupied territory or to create a new State therein while [the occupation is] still in progress.
Since January 17, 1893, the United States was unlawfully exercising its power over the Hawaiian Islands and the population by maintaining its puppet governments calling themselves the provisional government and then the so-called Republic of Hawai‘i, and its unlawful imposition of American laws when it unlawfully annexed the Hawaiian Islands in 1898, and then unlawfully created the American State of Hawai‘i in 1959. The very existence of the Hawaiian Kingdom as an occupied State cancels any and all American authority in the territory of the Hawaiian Kingdom unless that authority is in line with the 1907 Hague Regulations and 1949 Fourth Geneva Convention, which it is currently not.
Considering the severity of the situation, the Council of Regency’s approach toward compliance by the State of Hawai‘i is laser focused on the duties and responsibilities of State of Hawai‘i Major General Kenneth Hara to transform the State of Hawai‘i into a Military Government. The Council of Regency did not choose MG Hara to perform this duty, but rather the rules of international law did because he is the highest ranking general officer in the State of Hawai‘i Department of Defense.
The Hawaiian Kingdom is at the cusp of a radical change in governance that is in line with international law. A change that must bring 131 years of violating international law in line with Hawaiian Kingdom law. As education was once weaponized for illicit purposes, it is crucial at this time to facilitate compliance with the law through accurate information and responsible education.
Game Theory’s Zero-Sum Game and the American Occupation of the Hawaiian Kingdom
A zero-sum game is a “mathematical representation in game theory and economic theory of a situation that involves two sides, where the result is an advantage for one side and an equivalent loss for the other.” Examples of zero-sum games include poker and the American presidential election. In other words, the winner takes all. How does this type of game apply to the American occupation of the Hawaiian Kingdom? The answer to this question derives from State sovereignty under international law.
An independent State is the highest status that a political entity can achieve. There is no political status higher than the State. Sovereignty is the authority over the territory of the State exercised by the State’s governing body, which is geo-political. All governments of independent States are not identical because they are the outcome of their geographic location and political experiences, e.g. constitutional monarchies, and republics. But all States are the same, which have four components: a defined territory, a population, a centralized government, and the ability to enter into foreign relations with other States.
In the Larsen v. Hawaiian Kingdom arbitration, the arbitral tribunal at the Permanent Court of Arbitration stated, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom, and various other States.” So there is no question that the Hawaiian Kingdom existed in the nineteenth century as a sovereign and independent State with all rights that afforded under international law.
In the Island of Palmas arbitration, which was a dispute between the United States and the Netherlands, the arbitrator explained that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” And in the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice stated:
Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—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 its territory except by virtue of a permissive rule derived from international custom or from a convention (treaty).
Since 1898, the United States has been directly exercising it authority over Hawaiian Kingdom territory without any ‘permissive rule derived from international custom or from a convention (treaty).’ The United States claims its authority over the Hawaiian Islands derives from the joint resolution of annexation of July 7, 1898. However, the joint resolution is not customary international law nor is it a treaty. Rather, it is congressional legislation, which the United States Supreme Court, in United States v. Curtiss-Wright, stated “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.”
If congressional laws have no force in foreign territory, then the joint resolution could not have the force of annexing the Hawaiian Islands, which is 2,471 miles from its western border of California. The truth of the matter is that the joint resolution of annexation provided the means for erasing the history of the United States invasion of the Hawaiian Kingdom on January 16, 1893, and militarily overthrowing the Hawaiian government the following day, which, under international law, triggered the law of occupation. As an independent State under international law, the overthrow of the Hawaiian Kingdom government did not affect the Hawaiian State and its independence and sovereignty. U.S. Army Field Manual 27-10 unequivocally states that occupation does not transfer sovereignty. According to Section 358:
Being an incident of war, 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. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.
The permissive rule under international law that allows one State to exercise authority over the territory of another State is Article 43 of the 1907 Hague Regulations, that mandates the occupant to establish a military government in order to provisionally administer the laws of the occupied State until there is a treaty of peace where the occupation comes to an end. Section 362 of the FM 27-10 explains that “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.”
From January 17, 1893, to July 7, 1898, the United States has been unlawfully exercising its power, indirectly, over the territory of the Hawaiian State, through its puppet governments called the provisional government and the Republic of Hawai‘i that were installed after the overthrow. From July 7, 1898, to the present, the United States has been directly exercising unlawful authority over the territory of the Hawaiian State. How does international law and the law of occupation see this unlawful exercise of authority?
If the United States, to include the State of Hawai‘i, has no authority to exercise its power in Hawaiian territory, then everything that derives from its unlawful authority is invalid in the eyes of international law. This comes from the rule of international law called ex injuria jus non oritur, which is Latin for “law (or right) does not arise from injustice.” From this rule of international law, when applied to an Occupied State, is another rule of international law called postliminium, where all unlawful acts that an Occupying State may have done in occupied territory are invalid and cannot be enforced when the occupation comes to an end.
This rule also applied in the American Civil War from 1861-1865. In 1868, the U.S. Supreme Court had to mitigate the impact of this principle in the aftermath of when the war came to an end. In Texas v. White, the Supreme Court stated:
…that acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government must be regarded in general as valid when proceeding from an actual, though unlawful, government, and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.
All acts done by the Texas government were ‘invalid and void’ during the rebellion, but certain acts were only recognized as valid after the Civil War ended. The Supreme Court’s decision had a retroactive effect to give validity to acts that were previously invalid. Just as the rule applied during the American rebellion, this rule applies while the territory of a State is under occupation by an Occupying State. Acts done by an Occupying State, if it is authorized under international law, are valid and its validity would continue to be recognized as valid when the occupation comes to an end.
This is not the case, however, because the acts of the United States since January 17, 1893, to the present, have not been in accordance with the law of occupation but rather the war crime of usurpation of sovereignty during military occupation. Usurpation of sovereignty is the unlawful imposition of American laws and administrative measures within the territory of the Hawaiian Kingdom, a co-equal sovereign State.
The Hawaiian Council of Regency understands the scope and magnitude of the United States and the State of Hawai‘i’s violation of international laws even if the population does not see it themselves. The violation of international laws has rendered the population with absolutely no rights to property that can be protected, which include land, homes, cars, copyrights, trademarks, trade secrets and patents. The Council of Regency’s Operational Plan to Transition the State of Hawai‘i into a Military Government addresses this significant issue.
The Hawaiian Kingdom exists as a sovereign and independent State, even under occupation. This existence, under international law, precludes the United States, as the Occupying State, from exercising its power unless it does so by virtue of international law as an occupant. It cannot co-exist with the Hawaiian Kingdom in its own territory, except by virtue of the law of occupation which temporarily allows for it.
The unlawful acts done by the United States has rendered all rights to property, whether tangible or intangible, void and invalid. For the people to have their rights to property intact and valid, the United States must show that the Hawaiian Kingdom no longer exists and that it is the successor State to the Hawaiian Islands. It can’t because the Permanent Court of Arbitration already recognized the Hawaiian Kingdom continues to exist as a State since the nineteenth century. This is the devastating effect of the zero-sum on the people.
Accessing Two Books on the Political and Legal History of the Hawaiian Islands
In 2011, Dr. Keanu Sai wrote a book titled Ua Mau Ke Ea – Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands. Pū‘ā Foundation is the publisher of this book that can be purchased online at their website. This book draws from Dr. Sai’s doctoral dissertation in political science titled The American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State. Ua Mau is currently being used to teach Hawaiian history in the Middle Schools, High Schools, and entry level collage classes.
In 2020, Dr. Sai is an editor and author of a free eBook titled Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. Contributing authors include Professor Matthew Craven from the University of London, SOAS, Law Department, on the subject of the Hawaiian Kingdom’s continued existence as a State under international law; Professor William Schabas from Middlesex University London, Law Department, on the subject of war crimes being committed in the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, on the subject of human rights violations committed in the Hawaiian Kingdom and the right of self-determination of a population under military occupation. In 2022, a book review of the Royal Commission of Inquiry’s eBook was done by Dr. Anita Budziszewska from the University of Warsaw, which was published in the Polish Journal of Political Science. This book is currently being used in undergraduate and graduate courses at universities.
To access Dr. Sai’s other publications you can visit his University of Hawai‘i website. Dr. Sai firmly believes in the power of education. He often states, “The practical value of history, is that it is a film of the past, run through the projector of today, on to the screen of tomorrow.” It is through education and awareness that the national consciousness of the Hawaiian Kingdom will be restored to its rightful place.
Dr. Keanu Sai Receives an Award from the Royal Order of Kamehameha I
At a ceremony yesterday at Hulihe‘e Palace in Kona, Island of Hawai‘i, Dr. Keanu Sai received an award from the Royal Order of Kamehameha I for “unwavering commitment to reactivate the Hawaiian Kingdom Government and rectify over a century of unlawful occupation.” Presenting the award was Ali‘i ‘Aimoku Alika Desha.
On April 15, 1927, Ali‘i ‘Aimoku John C. Lane wrote in the Honolulu Advertiser under the title “Kamehameha Order Marks 25 Years of Growth With Convention Beginning Today”:
On or about May 13, 1902, there met in the old “Foster hall” a group of prominent Hawaiians, and there discussed the establishing of a fraternal organization among the Hawaiians. Present at the meeting were George H. Huddy, James H. Boyd, Abraham Fernandez, Charles H. Rose, William H. Coney, John H. Wise, Rev. J.M. Ezera, David K. Ainoa, Johh K. Nakookoo, and others. The result was the creation and establishment of the Order of Kamehameha, and Prince Jonah Kuhio Kalanianaole was chosen Alii Aimoku, the highest position in the Order, which position he held continuously until his death on January 7, 1922.
Pictured below are members of the Order of Kamehameha at the State funeral of Queen Lili‘uokalani in 1917.
Correcting Revisionist History: The Emperical Writes Back – Re-Examining Hawaiian Dispossession Resulting from the Māhele of 1848
In 2010, Donovan Preza graduated with his M.A. Degree in Geography from the University of Hawai‘i at Mānoa. His Master’s thesis was titled “The Emperical Writes Back: Re-Examining Hawaiian Dispossession Resulting from the Māhele of 1848.” Preza, through analytical rigor and academic research, effectively turned on its head the false belief that has been promoted by the University of Hawai‘i since the 1990s that the Māhele of 1848 was a disaster for the Hawaiian people.
Preza, for his Master’s thesis, was also the recipient of the Norman Meller Research Award for the best MA research paper produced at the University of Hawai‘i in the social sciences or humanities and focused on the Pacific Islands. Here is his abstract for his thesis:
This research examines the transition of land tenure in Hawai‘i to a system of private property. Known as the Māhele, this transition was believed to have been the cause of dispossession of Hawaiians from land. This thesis questions presumptions identifying the Māhele as a sufficient condition of dispossession. Historical approach, interpretation, authority and evidence types are examined while questioning and contributing to such debates. The Māhele process is re-examined and a nuanced description of the process was provided. This resulted in the identification of previously un-examined set of data: the fee-simple sale of Government Land. Analysis of these sales revealed an alternate explanation for dispossession in Hawai‘i: the loss of governance. Ultimately this is a story of dispossession, how it has been understood, misunderstood, and re-understood in Hawai‘i.
UPDATE: Dr. Keanu Sai’s Presentation to the Maui County Council’s DRIP Committee on March 6, 2024
UPDATE: The video has been updated to include questions of Dr. Keanu Sai from the Committee members after the presentation.
Dr. Keanu Sai’s presentation to the Maui County Council’s Disaster, Resilience, International Affairs, and Planning (DRIP) Committee on the update on the status of Hawai‘i under international law and accountability for war crimes on March 6, 2024. The video is produced by Kanaeokana.
Correcting Misinformation: The Great Māhele is a “Process” of Hawaiian Land Tenure, not a “Singular Event”
There is much confusion on the 1848 Great Māhele that stems from the Hawaiian Indigeneity movement made up of scholars at the universities. This prompted Dr. Keanu Sai to write an article titled “Setting the Record Straight on Hawaiian Indigeneity” in 2021 that was published in volume 3 of the Hawaiian Journal of Law and Politics. Dr. Sai covers the false narrative of the Māhele that was promoted by the Hawaiian Indigeneity movement. The Māhele, as a process, is explained under the heading of Land Reform on page 67 in the eBook published by the Royal Commission of Inquiry. And the Royal Commission of Inquiry published its Preliminary Report on the Legal Status of Land Titles throughout the Real in 2020.
The Hawaiian Indigeneity movement manufactured the false belief that the Hawaiian Kingdom was controlled by Americans. In his book Dismembering Lahui: A History of the Hawaiian Nation to 1887, Professor Jon Osorio wrote that the Hawaiian Kingdom “never empowered the Natives to materially improve their lives, to protect or extend their cultural values, nor even, in the end, to protect that government,” because the system itself was foreign and not Hawaiian. Professor Sally Merry stated, in her book Colonizing Hawai‘i: The Cultural Power of Law, “the relationship between Euro-Americans and Native Hawaiians was a classical colonial relationship [that sought] to transform the society of the indigenous people and subsequently wrested political control from them.” Dr. Robert Stauffer wrote, in his book Kahana: How the Land was Lost, “the government that was overthrown in 1893 had, for much of its fifty-year history, been little more than a de facto unincorporated territory of the United States…[and] the kingdomʻs government was often American-dominated if not American-run.” And in her book Aloha Betrayed: Native Hawaiian Resistance to American Colonialism, Professor Noenoe Silva wrote that the overthrow “was the culmination of seventy years of U.S. missionary presence.” These conclusions have no basis in historical facts and relevant laws.
Another false narrative driven by the Hawaiian Indigeneity movement is that all Native Hawaiians are called Kanaka Maoli. In Hawaiian law, kanaka maoli refers to aboriginal Hawaiians that are pure blood, and those that are part aboriginal Hawaiian are hapa. According to Pukui and Elbert’s Hawaiian Dictionary, kanaka maoli are “Full-blooded Hawaiian persons.” This is also reflected in Bernice Pauahi’s will that established the Kamehameha Schools. Article 13 states, “I direct my trustees to devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.” Hawaiian is short for Hawaiian subject, which is the nationality, while aboriginal Hawaiian whether full or part is the race. If you are not a full-blooded aboriginal Hawaiian, you are not kanaka maoli but rather hapa.
The cornerstone of the Hawaiian Indigeneity movement is how terrible the 1848 Great Mahele was for the commoner or native tenant. In her book Native Land and Foreign Desires, Professor Lilikala Kame‘eleihiwa wrote, “The culmination of changes in traditional Land tenure in Hawai‘i in 1848 is commonly known as the ‘Great Māhele.’ I refer to it simply as the ‘1848 Māhele’ because it proved to be such a terrible disaster for the Hawaiian people, and the word ‘great’ has a connotation of superior. It was a tragic historical event, a turning point that had catastrophic negative consequences for Hawaiians.”
In his book, Dismembering Lahui, Professor Osorio agrees with Professor Kame‘eleihiwaʻs conclusion by writing, “As significant an event as the Māhele has proven to be, historians have seen it as a way of making specific indictments either of Ali‘i or of colonialism. No one disagrees that the privatization of lands proved to be disastrous for Maka‘ainana [commoners], yet the focus of every study, from John Chinen’s 1958 work to Kame‘eleihiwa in 1992, has been to try and establish the principal responsibility for its ‘failure.’”
Professor Kame‘eleihiwa wrongly claimed that the native tenants that submitted their claims with the Board of Commissioners to Quiet Land Titles, also known as the Land Commission, were the only native tenants that got land through the Māhele. She stated that the commoner class only received “a total of 28,658 acres of Land, which is less than 1 percent of the total acreage of Hawai‘i.” These native tenants were able to acquire fee-simple titles to their land under the 1850 Act Confirming Certain Resolutions of the King in Privy Council, passed on the 21st day of December, A.D. 1849, Granting to the Common People Allodial titles for their own Lands and House lots, and certain other Privileges. This law came to be known as the Kuleana Act.
The Kuleana Act addressed those native tenants that were not able to file their claim with Land Commission before the due date of February 14, 1848, by empowering them to go to the Minister of the Interior or his special agents to acquire up to fifty acres of land. The Minister of the Interior was responsible for the administration of Government lands that it received through the Mahele on June 7, 1848. In 1882, the Surveyor General reported to the Legislative Assembly that between “the years 1850 and 1860, nearly all the desirable Government land was sold, generally to natives.”
Donovan Preza, in his M.A. thesis on the Great Māhele tallied the number of acreage acquired by native tenants within this ten year period to be a remarkable 111,448.36 acres. This number of acreage is in addition to the 28,658 acres that commoners acquired from the Land Commission that Kame‘eleihiwa and Osorio hang theirs hats on as their sole evidence of oppression. By 1893, native tenants acquired from the Government a total of 167,290.45 acres. This is not evidence of dispossession and oppression of the commoners by the aristocracy and missionaries as argued by the movement of Hawaiian Indigeneity.
In a podcast interview on November 28, 2020, Professor Osorio made a startling comment. He said that the Māhele was “done to protect the hoaʻāina, the makaʻāinana, the people of the land who are not chiefs; to protect their existence on the land, and this is one of the most amazing things about the Māhele, and it was something that I didn’t really understand when I wrote my book. It was something that, really…Professor Keanu Sai makes clear to all of us.”
Professor Kame‘eleihiwa mistakenly thought that the Māhele was a singular event and not a process for separating the rights of the Government, Konohikis and the native tenants. The rights of these three entities were undivided. In the Hawaiian language, mahele is to divide and mahele‘ole is undivided. The 1839 Declaration of Rights established three vested rights in all the lands of the Hawaiian Kingdom. As the 1840 Constitution explains:
Kamehameha I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. I belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the management of the landed property.
The land tenure system was feudal. In 1882, the Surveyor General reported to the Legislative Assembly, “The ancient system of land titles in the Hawaiian Islands was entirely different from that of tribal ownership prevailing in New Zealand, and from the village or communal system of Samoa, but bore a remarkable resemblance to the feudal system that prevailed in Europe during the Middle Ages.”
As part of their vassalage, the chiefs had to pay the King taxes from their plantations, which was in swine, and the native tenants had to provide labor tax for both King and their chiefs on their plantation lands. The chiefs had to pay a particular weight of the swine per plantation or its equivalent in cash. The chiefs were also referred to as landlords. According to the Laws of 1842 Laws of the Hawaiian Islands that accompanied the 1840 Constitution, it stated:
The following is the rate of taxation for plantations, and, farms including plantations. There shall be no state, country, town and district tax, but only the following:
A large farm—a swine one fathom long.
A smaller one—a swine three cubits long.
A very small one—a swine one yard long.
If not a fathom swine, then 10 dollars.
If not a three cubit swine, then 7 ½ dollars.
If not a yard swine, then 5 dollars.
For the native tenants, the 1842 laws stated:
Hereafter a tax in labor shall not be required on every week of the month.—On two weeks, labor shall be done for his Majesty the King and also the landlords, and two weeks the people shall have wholly to themselves. The first week in the month the people shall work two days for the king and one for the landlords; the second week in the month they shall work one day for his Majesty the King, and two days for the landlords, and the next two weeks the people shall have to themselves.
Foreigners who were granted lands by the King and the chiefs were not part of the feudal system so they did not do any labor tax. On December 10, 1845, the Legislature began land reform by enacting a law establishing the Land Commission. The mandate of the Land Commission was to investigate all claims to private property that existed outside of the feudal system. Claimants to these lands had to file their claims for investigation between February 14, 1846, and February 14, 1848. Those that were required to file their claims to land were those who acquired their lands from the King or a chief prior to December 10, 1845.
After the investigation, the Land Commission would grant a Land Commission Award with a number if the claim was found valid. If it was rejected there was no Land Commission Award. Foreigners and those chiefs or native tenants that possessed property outside of the feudal system were required to file their claims. If they did not get their claim in before February 14, 1848, the lands reverted to the King and Government.
According to the Principles of the Land Commission:
The following benefits will result from these investigations and awards:—
1st. They will separate the rights of the King and Government, hitherto blended, and leave the owner, whether in fee, or for life, or for years, to the free agency and independent proprietorship of his lands as confirmed. So long as the King or Government continue to have an undivided proprietary share in the domain the King’s and Premier’s consent is necessary, by the old law, to real sales, or tranfers from party to party, and, by parity of reasoning, to real mortgages also. This is because of the share which Government or the body politic has in the lands of the kingdom uniformly. To separate these rights, and disembarrass the owner or temporary possessor from this clog upon his free agency, is beneficial to that proprietor in the highest degree, and also to the body politic; for it not only sets apart definitely what belongs to the claimant, but untying his hands, enables him to use his property more freely, by mortgaging it for commercial objects, and by building upon it, with the definite prospect that it will descend to his heirs. This will tend more rapidly to an export, and to a permanency of commercial relations, without which, there can never be such a revenue as to enable the Government to foster its internal improvements.
At this stage, the Land Commission was not authorized by law to grant titles to property but only to investigate and where found to be a valid claim issue a Land Commission Award. These Land Commission Awards vary from fee-simple, life estates, to leasehold. Below is Land Commission Award no. 511 issued to J.P. Parker. The Land Commission verified that Kamehameha III and the Premier Kekāuluohi conveyed a conditional fee-simple title to Parker on January 1, 1843.
On December 11, 1847, King Kamehameha III and his chiefs in Privy Council began to discuss the process of separating the rights of the Government from the chiefs, who were also called Konohikis, that would eventually lead to separating the rights of the Government and the Konohikis from native tenants. The purpose was to bring to an end the feudal system whereby the Konohiki and the native tenant will have an allodial title to their lands. According to Blackʻs Law Dictionary, allodial is “Free; not holden of any lord or superior; owned without obligation of vassalage or fealty; the opposite of feudal.” Fee-simple is synonymous with allodial.
There were 254 Konohikis and King Kamehameha III considered himself the highest of all Konohikis. He was making the separation of himself as a Konohiki under the feudal system and as Head of the Government. In the Privy Council minutes it states:
The King now claims to Konohiki of a great portion of the lands. He therefore makes known to the other Konohikis, that they are only holders of Lands under him, but he will only take a part and leave them a part…subject only to the rights of the Tenants.
The Chiefs do not greatly object to this, but they ask. Has the Government a third interest in the lands left to us? The King replies Yes and the Government has 1/3 interest in his. There are some who say no. Let us have an Allodial Title to what the King has left us subject only to the rights of the Tenants.
The Māhele formally began on January 17, 1848, where the King and Konohikis signed in a book the separation of the lands between themselves. This gave them a life estate to the lands assigned to them in the Māhele book called ahupua‘a and ‘ili kūpono. If they wanted to acquire the fee-simple interest in these lands they had to give the Government certain lands they received in the Māhele that would satisfy the one-third interest of the Government. Kamehameha III was the first Konohiki to do this when the Government, acting through its Legislature, accepted certain lands to be Government lands and the remaining lands became the fee-simple ownership of Kamehameha III. Kamehameha III’s lands came to known as Crown Lands that descended to the successors of the throne. According to the 1848 Act Relating to the Lands of His Majesty the King and of the Government:
[Listing of the ahupua‘a and ‘ili]
To be the private lands of His Majesty Kamehameha III, to have and to hold to himself, his heirs, and successors, forever; and said lands shall be regulated and disposed of according to his royal will and pleasure subject only to the rights of tenants.
[Listing of the ahupua‘a and ‘ili]
Made over to the Chiefs and People, by our Sovereign Lord the King, and we do hereby declare those lands to be set apart as the lands of the Hawaiian Government, subject always to the rights of tenants.
During the Māhele process amongst the Konohikis, native tenants were encouraged to file their claim with the Land Commission before the due date of February 14, 1848. Many native tenants did not make it in time. This is where the confusion lies regarding the Māhele. What is important to remember, the Land Commission was not authorized to grant titles to those who filed their claim, but rather only to investigate the claims to land. Native tenants that filed their claims with the Land Commission did not divide their rights yet with the Government or the Konohikis so they could not claim to have a fee-simple title to their lands. This will change the following year.
On December 21, 1849, the King in Privy Council passed resolutions so that the common people can get allodial or fee-simple titles to their lands, and to empower the Land Commission to grant these titles on behalf of the King and Konohikis. This would facilitate the process of separating the rights of the Government and the Konohikis from those claims that were filed with the Land Commission by native tenants. Although the resolution empowered the Land Commission to grant titles to native tenants, the Legislature was needed to amend the law that would allow the Land Commission to grant titles.
On August 6, 1850, the Legislature enacted an Act Confirming Certain Resolutions of the King and Privy Council, passed on the 21st day of December, A.D. 1849, Granting to the Common People Allodial titles for their Own Lands and House Lots, and Certain other Privileges. This law came to known as the Kuleana Act. The Kuleana Act stated:
Be it enacted by the House of Nobles and Representatives of the Hawaiian Islands, in Legislative council assembled:
That the following sections which were passed by the King, in privy council on the 21st of December, A.D. 1849, when the legislature was not in session, be and are hereby confirmed; and that certain other provisions be inserted, as follows:
- That fee-simple titles, free of commutation, be and are hereby granted to all native tenants, who occupy and improve any portion of any government land, for the lands they so occupy and improve, and whose claims to said lands shall be recognized as genuine by the land commission: Provided, however, that this resolution shall not extend to konohikis or other persons having the care of government lands, or to the house lots and other lands in which the government have an interest in the districts of Honolulu, Lahaina and Hilo.
- By and with the consent of the King and chiefs in privy council assembled, it is hereby resolved, that fee-simple titles free of commutation, be and are hereby granted to all native tenants who occupy and improve any lands other than those mentioned in the preceding resolution, held by the King or any chief or konohiki for the land they so occupy and improve; Provided, however, that this resolution shall not extend to house lots or other lands situated in the districts of Honolulu, Lahaina and Hilo
- That the board of commissioner to quiet land titles be, and is hereby empowered to award fee-simple titles in accordance with the foregoing resolutions; to define and separate the portions of lands belonging to different individuals; and to provide for an equitable exchange of such different portions, where it can be done, so that each man’s land may be by itself.
- That a certain portion of the government lands in each island shall be set apart, and placed in the hands of special agents, to be disposed of in lots from one to fifty acres, in fee-simple, to such natives as may not be otherwise furnished with sufficient land, at minimum price of fifty cents per acre.
- In granting to the people, their house lots in fee-simple, such as are separate and distinct from their cultivated lands, the amount of land in each of said house lots shall not exceed one quarter of an acre.
- In granting to the people their cultivated grounds, or kalo lands, they shall only be entitled to what they have really cultivated, and which lie in the form of cultivated lands; and not such as the people may have cultivated in different spots, with the seeming intention of enlarging their lots; nor shall they be entitled to the waste lands.
- When the landlords have taken allodial titles to their lands, the people on each of their lands, shall not be deprived of the right to take firewood, house timber, aho cord, thatch, or ti leaf, from the land on which they live, for their own private use, should they need them, but they shall not have a right to take such articles to sell for profit. They shall also inform the landlord or his agent, and proceed with his consent. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, and running water, and roads shall be free to all, should they need them, on all lands granted in fee-simple: Provided, that this shall not be applicable to wells and water courses which individuals have made for their own use.
Sections 1, 2, 3, 5, 6 and 7 applied to those native tenants that filed their claim with the Land Commission. While sections 4 and 7 applied to those native tenants that were not able to file their claim with the Land Commission but would go to the Minister of the Interior or special agents appointed by him to separate their interest with the Government. This group of native tenants did not get Land Commission Awards, but rather Royal Patent Grants. Below is Land Commission Award no. 4491 to Kuapu‘u by virtue of the Kuleana Act, followed by Royal Patent Grant no. 1042 to Kawahinekalewa by virtue of the Kuleana Act.
Of the three vested rights in the land, the Māhele was able to separate the Government from the 254 Konohiki lands, which included the Crown lands, and native tenants throughout the nineteenth century, whether by a Land Commission Award or a Royal Patent Grant. The Kuleana Act has not been repealed and still exists today for native tenants to acquire up to fifty acres in fee-simple. This is why the Māhele is a continuing process and not a singular event.
The Māhele was such a monumental event of moving Hawaiian land tenure from feudal to private ownership that it became known as the Great Māhele. On December 18, 1848, the King and Privy Council approved certain rules to be followed for the Māhele that was drafted by Hawaiian Chief Justice William Lee. After submitting the rules for consideration, Chief Justice Lee stated:
In submitting the above rules to the consideration of You Majesty, I beg to state that I believe these rules to be such as are dictated by the Constitution and Laws of Your Kingdom and by the liberal and bountiful spirit which it has pleased Your Majesty to manifest for the good of Your Nation. It is my firm conviction that this silent and bloodless in the landed tenures of Your Kingdom will be the most blessed change that has ever fallen to the lot of Your Nation. It will remove the mountain of oppression that has hither to rested upon the productiveness of your soil, unbind the fetters of industry and wealth, and give a life and action to the dormant resources of Your Kingdom, which cover your land with the stream of prosperity and gladness. It is difficult at this day to foresee the bright results of this momentous change. I am aware that the division of lands between the Chiefs and Tenants of Your Kingdom will be attended with a multitude of difficulties. I cannot say that the great mass of Your Nation are full prepared to receive so great an Emancipation. They may spurn this proposed freedom. But I do not sincerely believe, that this great measure, by raising the Hawaiian Nation from a state of hereditary servitude, to that of a free and independent right in the soil they cultivate, will promote industry and agriculture, check depopulation, and ultimately prove the salvation of Your People. I believe it to be a measure which will meet the approval of Your Majesty in years to come, and cause your name to be remembered with veneration and gratitude by generations yet unborn. I believe that if this measure be fully carried out in the liberal spirit in which it is begun, if the lands of Your Majesty’s Kingdom be unlocked, it will open the hidden fountains of prosperity, and prove the dawn of a new and bright era to Your Kingdom.
Meritocracy of the Regency and Command and Control by a Military Government
When the government of the Hawaiian Kingdom was restored in 1997 by a Council of Regency, it came into existence where the population of the Hawaiian Islands effectively had their national consciousness of the Hawaiian Kingdom from the nineteenth century obliterated and replaced with an American national consciousness. The process by which this obliteration occurred was by a deliberate and consistent policy of denationalization through Americanization that was formally instituted in the public and private school system in 1906 by the Department of Public Instruction, which is currently called the Department of Education.
According to the Programme, “The teacher will call one of the pupils to come forward and stand at one side of the desk while the teacher stands at the other. The pupil shall hold an American flag in military style. At second signal all children shall rise, stand erect and salute the flag, concluding with the salutation, ‘We give our heads and our hearts to God and our Country! One Country! One Language! One flag!’”
In 1907, Harper’s Weekly magazine covered the Americanization taking place at Ka‘ahumanu and Ka‘iulani Public Schools, which has students from the first to eighth grade. When the reporter visited Ka‘iulani Public School, he documented the policy being carried out and took a picture of the 614 school children saluting the American flag. He wrote:
At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten seconds all of the 614 pupils of the school began to march out upon the great green lawn which surrounds the building. Hawaii differs from all our other tropical neighbors in the fact that grass will grow here. To see beautiful, velvety turf amid groves of palms and banana trees and banks of gorgeous scarlet flowers gives a feeling of sumptuousness one cannot find elsewhere.
Out upon the lawn marched the children, two by two, just as precise and orderly as you can find them at home. With the ease that comes of long practice the classes marched and countermarched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads. Surely this was the most curious, most diverse regiment ever drawn up under that banner—tiny Hawaiians, Americans, Britons, Germans, Portuguese, Scandinavians, Japanese, Chinese, Porto-Ricans, and Heaven knows what else.
‘Attention!’ Mrs. Fraser commanded.
The little regiment stood fast, arms at sides, shoulders back, chests out, heads up, and every eye fixed upon the red, white, and blue emblem that waved protectingly over them.
‘Salute!’ was the principal’s next command.
Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice:
‘We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!’
The last six words were shot out with a force that was explosive. The tone, the gesture, the gaze fixed reverently upon the flag, told their story of loyal fervor. And it was apparent that the salute was given as spontaneously and enthusiastically by the Japanese as by any of the other children. There were hundreds of them in the throng, and their voices rang out as clearly as any others, their hands raised in unison. The coldest clod of a man who sees the children perform this act of reverence must feel a tightening at the throat, and it is even more affecting to see these young atoms from all the world actually being fused in the crucible from which they shall issue presently as good American citizens.”
Under customary international law, Americanization is a war crime of denationalizing the inhabitants of an occupied territory. Germans and Italians were prosecuted for the same war crime after World War II for implementing a systematic plan of Germanization and Italianization in occupied territories.
The insurgency relied on loyalty, not merit, to fill the ranks of their provisional government in 1893 and their so-called Republic of Hawai‘i in 1894. When the United States seized control of the Hawaiian Islands by renaming the Republic of Hawai‘i to the Territory of Hawai‘i in 1900 loyalty in the ranks were continued by the insurgency pretending to be American citizens.
The lead insurgent, Sanford Dole, as President of the Republic of Hawai‘i, was appointed by President McKinley to be the Governor of the Territory of Hawai‘i. Loyalty to the insurgency was party affiliation to the Republican Party. In 1959, when the United States changed the name of the Territory of Hawai‘i to the State of Hawai‘i, loyalty was now under a new party—the Democratic Party, which continues today. While international law renders the current apparatus of the State of Hawai‘i not as a legitimate government but rather an occupant that is committing war crimes against the population of the Hawaiian Islands, it has not altered the firm grip of loyalty in the minds of alleged war criminals. What will eventually break this chain is criminal culpability and prosecutions like what occurred with with the Nazi Party in Germany.
When the Hawaiian government was restored in 1997 by a Regency, its officers had to conform to Hawaiian constitutional law and administrative processes. King Kamehameha III established, as an administrative process, meritocracy, which is where government jobs were based on merit and not solely on loyalty. Responding to a slew of appeals to remove these foreign advisors who replaced native Chiefs, Kamehameha III penned the following letter that was communicated throughout the realm—a letter that speaks to the time and circumstance the kingdom faced and establishing a meritocracy:
Kindly greetings to you with kindly greetings to the old men and women of my ancestors’ time. I desire all the good things of the past to remain such as the good old law of Kamehameha that “the old women and the old men shall sleep in safety by the wayside,” and to unite with them what is good under these new conditions in which we live. That is why I have appointed foreign officials, not out of contempt for the ancient wisdom of the land, but because my native helpers do not understand the laws of the great countries who are working with us. That is why I have dismissed them. I see that I must have new officials to help with the new system under which I am working for the good of the country and of the old men and women of the country. I earnestly desire to give places to the commoners and to the chiefs as they are able to do the work connected with the office. The people who have learned the new ways I have retained. Here is the name of one of them, G.L. Kapeau, Secretary of the Treasury. He understands the work very well, and I wish there were more such men. Among the chiefs Leleiohoku, Paki, and John Young [Keoni Ana] are capable of filling such places and they already have government offices, one of them over foreign officials. And as soon as the young chiefs are sufficiently trained I hope to give them the places. But they are not now able to become speakers in foreign tongues. I have therefore refused the letters of appeal to dismiss the foreign advisors, for those who speak only the Hawaiian tongue.
The Council of Regency and its officers had to become proficient in Hawaiian constitutional law, administrative law, land tenure, public international law, international humanitarian law, and the law of occupation. This is why Dr. Keanu Sai, as Chairman of the Council of Regency, secured a M.A. degree and a Ph.D. degree in political science specializing in international relations and law. Dr. Sai’s merit is also reflected in multiple peer review articles and published books on the topic of the Hawaiian Kingdom and its continued existence.
Loyalty was satisfied by Hawaiian administrative law where the members of the Cabinet Council were required to take the following oath, “I solemnly swear in the presence of Almighty God, that I will faithfully support the Constitution and laws of the Hawaiian Kingdom, and faithfully and impartially discharge the duties of [Minister of Foreign Affairs, the Minister of the Interior, the Minister of Finance, and the Attorney General].”
Under the law of occupation there is a working relationship between the occupant and the Regency as the government of the occupied State. International law constrains and regulates the actions of both entities with its collective duty of protecting the population of the occupied State. The law of occupation places another duty, which is paramount, on the head of the State of Hawai‘i Department of Defense, Major General Kenneth Hara, to proclaim the transformation of the State of Hawai‘i into a Military Government and begin to comply with the law of occupation.
According to the U.S. Manual for Courts-Martial, a “duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the Service.” In this case, MG Hara’s duty is imposed upon him by Article 43 of the 1907 Hague Regulations, and U.S. Department of Defense Directive 5001.1 that states it is the duty of the Army in “[occupied] territories abroad [to] provide for the establishment of a military government pending transfer of this responsibility to other authority.” It is not the duty of the Navy, Marines, or the Air Force. U.S. Army field manuals (“FM”) regulating military government are FM 27-5—Civil Affairs Military Government, FM 27-10—The Law of Land Warfare, FM 3-57—Civil Affairs Operations, and FM 6-37—The Commander’s Handbook on the Law of Land Warfare.
MG Hara’s failure to perform this duty that is established by treaty as an Army general officer is a crime under the Uniform Code of Military Justice, and a war crime of omission under international law. A soldier who is found guilty of willful dereliction of duty resulting in death or grievous bodily harm is subject to “dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.”
The war crimes tribunals in Nuremburg and Tokyo that followed the end of hostilities during the Second World War, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when the superior, by omission, fails to control or punish those under his/her command.
Paragraph 4-24 of the 2020 Army Regulations 600-200 states, “Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish.” The failure of MG Hara to transform the State of Hawai‘i into a Military Government has allowed for war crimes to be committed with impunity throughout the Hawaiian Islands by the unlawful imposition of American laws over Hawaiian territory, which is the war crime of usurpation of sovereignty during military occupation. This imposition of American laws has led to secondary war crimes such as unfair trials, unlawful confinement, confiscation or destruction of property, denationalization, pillage, etc.
According to the U.S. Department of Defense, command and control is the “exercise of authority and direction by a properly designated commander over assigned forces in the accomplishment of the mission.” Establishing a Military Government is a mission of the Army in occupied territory, and when it is established, it is not based upon democratic principles. U.S. Army Field Manual 27-5 states, “Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.”
FM 27-5 also states under command responsibility, the “theater commander bears full responsibility for military government; therefore, he is usually designated as military governor or civil affairs administrator, but is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” And the reasons for the establishment of military government “are either military necessity as a right, or as an obligation under international law.”
The mission of a military government assumes that the population of the occupied territory is hostile to its presence, which is precisely why the military governor has command and control. The military governor does not maintain the loyalties of the former government but rather severs it by replacing it with his authority in order to temporarily administer the laws of the occupied State until a peace treaty has been agreed upon that would bring the occupation to an end.
After General Dwight Eisenhower proclaimed the establishment of a Military Government in Germany on April 19, 1945, began the de-Nazification of Germany. In his proclamation, General Eisenhower stated, “we shall obliterate Nazi-ism and German Militarism. We shall overthrow the Nazi rule, dissolve the Nazi Party and abolish the cruel, oppressive and discriminatory laws and institutions which the Party has created. We shall eradicate that German Militarism which has so often disrupted the peace of the world. Military and Party leaders, the Gestapo and others suspected of crimes and atrocities will be tried and, if guilty, punished as they deserve.”
Like in the case of Germany, the Military Government for Hawai‘i would have to “obliterate” American-ism and American Militarism in order to begin the restoration of Hawaiian Kingdom national consciousness that existed before the American invasion on January 16, 1893. American-ism and American Militarism was established by the American authorities themselves in order to conceal the illegality of the occupation and the militarization of an occupied State. This would not be an easy task but it is, nevertheless a duty imposed by treaty and Army regulations, which falls squarely on MG Hara despite his personal feelings and/or perceived loyalties to the Democratic Party of the current administration. As an Army general officer, MG Hara is held to a higher standard than any person pretending to be an American politician in an occupied State, and his training and military education reveals it.
There would, however, be no duty imposed upon MG Hara if the Hawaiian Kingdom had ceased to exist as a State under international law, but this is not the case because his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, could not find any legal evidence that that was the case.
In 2014, LTC Phelps was the Deputy Prosecuting Attorney for the County of Maui in State of Hawai‘i v. English et al., criminal no. 14-1-0819, brought before Judge Joseph P. Cardoza of the Second Circuit Court. Attorney General for the Hawaiian Kingdom, Dexter Ka‘iama, served as the defendants’ counsel who filed a motion to dismiss both criminal complaints on the grounds that the court lacked subject matter jurisdiction because of the American military occupation of the Hawaiian Kingdom. Mr. Ka‘iama has been serving as the Attorney General of the Hawaiian Kingdom and member of the Council of Regency since August 11, 2013.
An evidentiary hearing was held at the Second Circuit Court on March 5, 2015, where Dr. Keanu Sai served as expert witness for the defense. The purpose for the evidentiary hearing was to meet the burden of proof established by the Intermediate Court of Appeals in State of Hawai‘i v. Lorenzo whereby defendants that are contesting the jurisdiction of the court must provide a “factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”
In Dr. Sai’s expert testimony, he provided the factual circumstances of the United States military occupation of the Hawaiian Kingdom and the unlawful imposition of American municipal laws as to the reason why the Court does not have subject matter jurisdiction because its authority extends from the 1959 Statehood Act passed by the Congress, which has no extra-territorial effect. In the court’s transcripts, Dr. Sai stated that for the Court to proceed it would violate “Article 147 [1949 Fourth Geneva Convention], unfair trial [as] a grave breach, which is considered a war crime.” When asked by Judge Cordoza, “Any cross-examination?” LTC Phelps responded, “Your Honor, the State has no questions of Dr. Sai. Thank you for his testimony. One Army officer to another, I appreciate your testimony.”
Binding on MG Hara was also the fact that the United States already recognized the continued existence of the Hawaiian Kingdom as a State and the Council of Regency as its government by opinio juris. Additionally, the United States explicitly recognized the Council of Regency, by a mutual agreement, so it could be granted permission to access all records and pleadings of the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration.
For MG Hara to continue to deny the overwhelming evidence that imposes upon him the duty and obligation to transform the State of Hawai‘i into a Military Government, he is establishing a very strong basis of “willfulness” of not performing his duty, which satisfies the criminal intent for the war crime of omission.
Dr. Keanu Sai to Present Update on the status of Hawai‘i under International Law to the Maui County Council on March 6, 2024
The Chair of the Maui County Council’s Disaster, Resilience, International Affairs and Planning (DRIP) Committee, Councilwoman Tamara Paltin, invited Dr. Keanu Sai to give an update on the status of Hawai‘i under international law at the DRIP Committee meeting on March 6, 2024. In 2019, Dr. Sai did three presentations on the Hawaiian Kingdom for the Maui County Council’s Land Use Committee.
Component Commands of the Indo-Pacific Command Notified to Withdraw from the Hawaiian Islands prior to October 26, 2024
On October 20, 2023, the Council of Regency, as the government of the occupied State, initiated the process to terminate the 1884 Supplemental Convention (“Pearl Harbor Convention”). Secretary of State Antony Blinken received the notice of termination from the Council of Regency on October 26, 2023, at 05:47 hours, which consequently triggered the tolling of twelve months. According to the terms of the Pearl Harbor Convention, the treaty will be terminated on October 26, 2024, 05:47 hours.
The Pearl Harbor Convention extended the duration of the 1875 Commercial Reciprocity Treaty an additional seven years until 1894, unless either the United States or the Hawaiian Kingdom gives notice to the other of its intention to terminate the treaty and convention. According to Article I:
The High Contracting Parties agree, that the time fixed for the duration of the said Convention, shall be definitely extended for a term of seven years from the date of the exchange of ratifications hereof, and further, until the expiration of twelve months after either of the High Contracting Parties shall give notice to the other of its wish to terminate the same, each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said term of seven years or at any time thereafter.
As a condition for the extension of the commercial treaty, the United States sought exclusive access to Pearl Harbor. Article II of the Pearl Harbor Convention provides:
His Majesty the King of the Hawaiian Islands grants to the Government of the United States the exclusive right to enter the harbor of Pearl River, in the Island of Oahu, and to establish and maintain there a coaling and repair station for the use of vessels of the United States, and to that end the United States may improve the entrance to said harbor and do all other things needful to the purpose aforesaid.
According to Article 1, the Pearl Harbor Convention came into effect in 1887 after ratifications were exchanged in Washington, D.C., and would last for seven years and further until “either of the High Contracting Parties shall give notice to the other of its wish to terminate the same,” where termination would commence twelve months after the notification is received by the other High Contracting Party. Although the Hawaiian government was unlawfully overthrown by the United States on 17 January 1893, the Hawaiian Kingdom as a State under international law continued to exist.
After the Hawaiian government was overthrown by the United States in 1893, the United States did nothing with Pearl Harbor until 1908 when the United States Congress allocated monies to build a naval station instead of a “coaling and repair station.” This violated the terms of the Pearl Harbor Convention as well as violating the Hawaiian Kingdom’s neutrality under international law.
The Pearl Harbor Convention has a direct nexus to the presence of the U.S. military component commands of the Indo-Pacific Command that has military installations and firing ranges outside of the perimeter of Pearl Harbor. Component commands of the Indo-Pacific Command include: United States Army Pacific, United States Marine Corps Forces Hawai‘i, and United States Joint Base Pearl Harbor-Hickam.
A note of the Hawaiian Kingdom attached to the Pearl Harbor Convention stated, “that Hawaiian Sovereignty and jurisdiction were not impaired that the Hawaiian Government was not bound to furnish land for any purpose and that the privilege to be granted should be coterminous with the Treaty.” Coterminous is defined as “having the same boundaries,” which is limited to Pearl Harbor.
The unlawful presence of the United States military has transformed the Hawaiian Kingdom from a neutral State into a military target by its adversaries, which first occurred on 7 December 1941 when Japan’s military forces attacked U.S. military targets. The high probability of military attacks by other countries, such as North Korea, China, and Russia continue due to the rising tensions in the Indo-Pacific region. In 1990, the Federal Emergency Management Agency’s Risks and Hazards—A State by State Guide listed 6 targets for nuclear attack that would effectively annihilate the entire Island of O‘ahu. The presence of the United States military places the civilian population of the Hawaiian Kingdom into perilous danger.
The component commanders—General Charles A. Flynn, Commander U.S. Army Pacific, Lieutenant General William M. Jurney, Commander U.S. Marine Corps Forces Hawai‘i, Captain Mark Sohaney, USN, Commander U.S. Joint Base Pearl Harbor-Hickam, and Colonel Monica Gramling, Deputy Commander U.S. Joint Base Pearl Harbor-Hickam, were notified by Dr. David Keanu Sai, as Head of the Royal Commission of Inquiry:
In light of the termination of the Pearl Harbor Convention, all Title 10 military forces of the four component commands of the Indo-Pacific Command—Army, Navy, Air Force and Marines, shall forthwith cease and desist any and all military exercises, to include utilizing live fire ranges across the islands, and anywhere within 200 nautical miles from the low water mark of the shoreline of the islands that constitute the Hawaiian Kingdom’s territorial sea and its exclusive economic zone, and to complete the withdrawal from the Hawaiian Islands by 26 October 2024.
The Staff Judge Advocates of the Indo-Pacific Command and the 25th Infantry Division were also included with the notifications. In his letters, Dr. Sai restated from the Council of Regency’s proclamation terminating the Pearl Harbor Convention:
And, We do require that when the United States has received this notice of termination, it shall, prior to the expiration of twelve months in accordance with Article I of the 1884 Supplemental Convention, remove all movable property at its military facilities throughout the Hawaiian Islands, including unexploded munitions, and fuel, with the exception of real property attached to the land or erected on it, including manmade objects, such as buildings, homes, structures, roads, sewers, and fences, to include on other properties that have been or are currently under its supervision and command.
Dr. Sai stated that the reasoning for notifying the component commands was because it was unclear whether the State Department notified Indo-Pacific Command of the termination of the Pearl Harbor Convention. Dr. Sai also stated that it did not appear that U.S. troops were beginning to be withdrawn. In his letters to the commanders of the component commands, Dr. Sai addressed the war crimes of confiscation or destruction of property:
Military installations and target ranges beyond Pearl Harbor were unlawfully confiscated by the United States from the Hawaiian Kingdom public lands and the estates of private persons in violation of international humanitarian law and the law of occupation. Live fire at these target ranges constitute destruction of property. According to Professor William Schabas, renowned expert on international criminal law, war crimes and human rights, in his legal opinion on war crimes being committed in the Hawaiian Kingdom, there are five elements of the war crime of confiscation or destruction of property.
Following the end of hostilities during the Second World War, the war crimes tribunals in Nuremburg and Tokyo, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when a superior, by omission, fails to control or punish those under his/her command.
Dereliction of the performance of a duty arises when a commander took no action to prevent, stop, or punish. Confiscation and destruction of property are war crimes and commanders of the four component commands have a duty to stop the further commission of these and other war crimes. Dereliction of the performance of a duty is also a war crime of omission.
Dr. Sai’s letter concluded with:
Since 17 April 2023, I have been in communication with Major General Kenneth Hara of the State of Hawai‘i Department of Defense, regarding his duty under international law and Army regulations, to transition the State of Hawai‘i into a military government. Of note in my meeting with BG Okamura on November 1, 2023, he stated to me that the withdrawal of U.S. troops because of the termination of the Pearl Harbor Convention will create chaos. I acknowledged that it would indeed be chaotic, and then answered that is precisely why MG Hara must establish a military government to facilitate the withdrawal of U.S. troops and begin to comply with the law of occupation. BG Okamura responded to me with that’s a good plan.
Unlike American politicians, members of the military have a duty and responsibility to comport with international law and regulations. To begin to withdraw Title 10 troops under your command is a duty imposed by the terms of a treaty and that you have command responsibility. Your presence in this country was by virtue of a treaty that would last from 1887 to 1894, and further, unless either country gives notice to the other of its intention to terminate. That notice to terminate was received by the United States on 26 October 2023 at 05:47 hours, which triggered the tolling of 12 months for termination. Therefore, your withdrawal is a duty imposed by the termination of that treaty that is not affected by any presidential or congressional action.
There would be no duty imposed upon you if the Hawaiian Kingdom had ceased to exist as a State under international law, but this is not the case because the United States recognized the continued existence of the Hawaiian Kingdom as a State and the Council of Regency as its government by opinio juris. Additionally, the United States explicitly recognized the Council of Regency by agreement so it could be granted permission to access all records and pleadings of the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration.
The Piercing Effect of International Criminal Culpability upon Individuals that are Outside of the United States
When United States President Grover Cleveland admitted that the overthrow of the government of the Hawaiian Kingdom was an “act of war,” it triggered international humanitarian law and the law of occupation on January 17, 1893. Instead of restoring Queen Lili‘uokalani as the Executive Monarch under a treaty called an executive agreement, by exchange of notes, between the Queen and President Cleveland, on December 18, 1893, Cleveland’s successor, President William McKinley unilaterally seized the Hawaiian Islands when he signed into American law the joint resolution of annexation on July 7, 1898. The purpose of the unilateral seizure of the Islands was to establish a military outpost to protect the west coast of the United States.
For the past 131 years, the United States has not been held to account for their violations of international law and the sovereignty of the Hawaiian Kingdom because violations of international law did not hold governmental officials of the State accountable for the actions of soldiers who committed war crimes. In 1919, there was an attempt to hold to account the German Kaiser for war crimes by an international tribunal established by the Allies of the First World War.
In its report, the Commission on the Responsibility of the Authors of the First World War concluded, “All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution” by the international tribunal. The United States, however, was against this. U.S. members of the Commission stated:
In regard to the latter point, it will be observed that the American representatives did not deny the responsibility of the heads of states for acts which they may have committed in violation of law, including in so far as their country is concerned, the laws and customs of war, but they held that heads of states are, as agents of the people, in whom the sovereignty of any state resides, responsible to the people for the illegal acts which they may have committed, and that they are not and that they should not be made responsible to any other sovereignty.
In other words, the United States position was to have the countries themselves prosecute their Heads of State. This position also implied that if the country’s won’t prosecute their Heads of State, their criminal culpability would go unchecked. The United States position would change, however, after the fall of the Nazi government and the Imperial Japanese government during the Second World War. Here an international tribunal was established to try high-level officials of the Nazi regime for war crimes and high-level officials of the Imperial Japanese government. This unified system laid the groundwork for the creation of international criminal law.
As stated by the International Military Tribunal at Nuremberg, in United States, France, Great Britain, and the Soviet Union v. Göring et al. (1948), “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Abstract entities are countries called States. In other words, you can’t punish the State, but you can hold to account members of the government of a State, whether civilian or military, for war crimes.
In 2002, the International Criminal Court (ICC) was established in The Hague, Netherlands for the prosecution of war crimes. 123 States approved the Rome Statute that established the ICC with jurisdiction over their territories. Collectively, you have 124 governmental organizations to prosecute war crimes, which are the 123 prosecutors and criminal courts of the States, and the prosecutor and courts of the ICC. Prosecutions for war crimes by the ICC are “for the most serious crimes of international concern,” while prosecution by the 123 States are for war criminal that enters into the territory. According to Article 1 of the Rome Statute:
An International Criminal Court is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concerns, as referred to in this Statute, and shall be complementary to national criminal jurisdiction. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
The significance of Article 1 is that the primary responsibility to prosecute war criminals are the 123 States and not the ICC. The war criminal reports by the Royal Commission of Inquiry (RCI) establish the evidentiary basis for prosecution by these States when those subjects of the reports enter their territory. As part of its mandate, it is also the duty of the RCI to ensure that these war criminals get prosecuted by all means necessary. There are no statutes of limitations to prevent the prosecution of war crimes. The Council of Regency is currently in communication with the legal counsel at the United Nations regarding the Hawaiian Kingdom’s accession to the Rome Statute that grants jurisdiction of the ICC over the territory of the Hawaiian Kingdom.
To begin to comply with international humanitarian law and the law of occupation, the decision to be made by February 17, 2024, does not fall upon an “abstract entity” called the United States or the State of Hawai‘i but rather upon Major General Kenneth Hara and the members of the State of Hawai‘i Legislature and the County Councils themselves.
For Major General Hara, his duty under international humanitarian law and the law of occupation is to transform the State of Hawai‘i into a military government on February 17. The action to be taken by members of the State of Hawai‘i Legislature and the County Councils is to cease and desist by February 17 the commission of the war crime of usurpation of sovereignty during military occupation.
Their failure to comply does not affect the mandate of the RCI or the continued existence of the Hawaiian Kingdom. Their failure to comply with the law of occupation merely serves as evidence of meeting the elements of the war crime and having criminal culpability.