The U.S. Department of Interior (DOI) will be in the Hawaiian Kingdom holding public meetings throughout the Islands from June 23 to August 8, 2014 to get responses from the Native Hawaiian community to consider reestablishing a government-to-government relationship between the United States and the Native Hawaiian community. Secretary of the Interior Sally Jewell who visited the country last year heads the DOI.
In a press release of June 18, 2014, the DOI stated, “The purpose of such a relationship would be to more effectively implement the special political and trust relationship that currently exists between the Federal government and the Native Hawaiian community. Today’s action, known as an Advanced Notice of Proposed Rulemaking (ANPRM), provides for an extensive series of public meetings and consultations in Hawaii and Indian Country to solicit comments that could help determine whether the Department develops a formal, administrative procedure for reestablishing an official government-to-government relationship with the Native Hawaiian community and if so, what that procedure should be.”
“When I met with members of the Native Hawaiian community last year during my visit to the state, I learned first-hand about Hawaii’s unique history and the importance of the special trust relationship that exists between the Federal government and the Native Hawaiian community,” said Secretary of the Interior Sally Jewell. “Through this step, the Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.”
At the center of the public meetings are five “threshold questions” for the community to respond to:
- Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community?
- Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship?
- If so, what process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
- Should the Secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?
- If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
The DOI stated, “Over many decades, Congress has enacted more than 150 statutes that specifically recognize and implement this trust relationship with the Native Hawaiian community, including the Hawaiian Homes Commission Act, the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act. The Native Hawaiian community, however, has not had a formal governing entity since the overthrow of the Kingdom of Hawaii in 1893. In 1993, Congress enacted the Apology Resolution which offered an apology to Native Hawaiians on behalf of the United States for its role in the overthrow and committed the U.S. government to a process of reconciliation. In 2000, the Department of the Interior and the Department of Justice jointly issued a report on the reconciliation process that identified self-determination for Native Hawaiians under Federal law as their leading recommendation.”
A careful review of the joint report by the DOI and the Department of Justice, the report acknowledges that the Hawaiian Kingdom was a recognized sovereign and independent State. “The United States clearly viewed the Kingdom of Hawai‘i as an independent nation as evidenced by the negotiation and signing of several treaties (p. 22).” The report also acknowledges President Cleveland’s withdrawal of the first treaty of annexation entered into with the so-called provisional government and President Harrison’s administration; the subsequent investigation, which concluded the provisional government was self-proclaimed and that the United States was responsible for the illegal overthrow of the Hawaiian government; and the executive agreement between the Queen and the President whereby the U.S. would restore the government and the Queen to grant amnesty. “President Cleveland did not desire, nor did he have the support of Congress, to engage United States military forces to declare war against the American citizens who controlled the Provisional Government (p. 28).” This was an act of non-compliance to the agreement of restoration, which allowed the insurgents to maintain unlawful control.
The report also acknowledges the failure of the second treaty of annexation entered into between the insurgency, calling themselves the Republic of Hawai‘i, and President McKinley, which resulted in Congress passing a joint resolution instead. The reported stated:
“With the election of President McKinley in 1896, the pro-annexation forces gained strength. The Republic of Hawai‘i continued to push for annexation although many Native Hawaiians were opposed. In September 1897, the “Petition against the Annexation of Hawaii Submitted to the U.S. Senate in 1897 by the Hawaiian Patriotic League of the Hawaiian Islands”, expressed the views of Native Hawaiians. The petition, signed by 21,169 people (more than half of the Native Hawaiian population) from Kaua‘i, Maui, Hawai‘i, Moloka‘i, O‘ahu, Lana‘i, and Kaho‘olawe provides evidence that Native Hawaiians were against annexation and wanted independence under a Monarchy (p. 29).”
“Consistent with the wishes expressed by Native Hawaiians, the Treaty of Annexation failed to pass the United States Senate by a two-thirds majority vote. However, by 1898, with the outbreak of the Spanish-American War in both the Pacific and Caribbean, the Newlands Joint Resolution of Annexation (Annexation Resolution) was offered by the pro-annexation forces and passed by a simple majority of the United States Senate and House of Representatives, thus becoming the instrument used to effect the annexation of the Republic of Hawai‘i. The constitutionality of the use of a Joint Resolution in lieu of a Treaty to annex Hawai‘i was a contentious issue at the time (p. 30).”
From this point the report continues a narrative of historical events to the present day that “assumes” the joint resolution of annexation extinguished the Hawaiian Kingdom as an independent and sovereign State. To support this erroneous position, the report restates a section of the 1993 Apology resolution, “Whereas the Newlands [Annexation] Resolution effected the transaction between the Republic of Hawai‘i and the United States Government (p. 30).” This resolution is problematic on two points: first, as an act of Congress the resolution has no effect beyond United States territory; and, second, the Republic of Hawai‘i was not a government, but self-declared, which the Apology resolution admitted.
What the report conveniently omits is the conclusion of the Department of Justice’s Office of Legal Counsel opinion on the “Newlands [Annexation] Resolution” in its 1988 Opinion “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea.” Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. The Opinion states that the “clearest source of constitutional power to acquire territory is the treaty making power (p. 247).” When it came to Hawai‘i, however, Kmiec had a difficult time explaining how the Congress could acquire territory by a joint resolution. Kmiec referenced a U.S. constitutional scholar, Professor Willoughby, who stated:
“The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but is was denied that this might be done by a simple legislative act… Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted (p. 252).”
After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded, “It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea (p. 252).” There has been no followup opinion from the Department of Justice’s Office of Legal Counsel since 1988 that qualified how Congressional legislation could annex foreign territory. If the Department of Justice was unclear as to which constitutional power Congress exercised in 1898 when it purported to have annexed Hawaiian territory by joint resolution, it should still be unclear as to how Congress “has enacted more than 150 statutes that specifically recognize and implement this trust relationship with the Native Hawaiian community, including the Hawaiian Homes Commission Act, the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act” stated in its press release.
It is clear that the Department of Justice had this information since 1988, but for obvious reasons did not cite that opinion in its joint report with the DOI that covered the portion on annexation (p. 26-30). To do so, would have completely undermined all the statutes the Congress has enacted for Hawai‘i, which would also include the lawful authority of the State of Hawai‘i government itself since it was created by an Act of Congress in 1959.
This was precisely the significance of the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe’s questions to Secretary of State John Kerry. Without any evidence that the United States extinguished the Hawaiian Kingdom as an independent and sovereign State under international law, the Hawaiian Kingdom is presumed to still be in existence and therefore under an illegal and prolonged occupation.
So before the “five threshold questions that will be the subject of the forthcoming public meetings regarding whether the Federal Government should reestablish a government-to-government relationship with the Native Hawaiian community” can be answered by the community, the only question that should be posed to the DOI at the public meetings is:
“Since the Department of Justice’s Office of Legal Counsel did not respond with evidence to the Office of Hawaiian Affairs CEO Dr. Kamana‘opono’s questions dated May 5, 2014 that the Hawaiian Kingdom does not exist as an independent and sovereign State under international law, I have to presume the Hawaiian Kingdom continues to exist. Therefore, my question to you is by what authority is the Department of Interior claiming to be here in Hawai‘i, being a foreign sovereign and independent State, since the Department of Justice has already concluded that Congress could not have annexed the Hawaiian Islands by a joint resolution?”