Here’s the trailer of Ua Mau Ke Ea – Sovereignty Endures:
Ua Mau Ke Ea – Sovereignty Endures Film at Doris Duke Theater in Honolulu
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Category Archives: Education
New Zealand News: United States Occupation of Hawai‘i
Te Karere New Zealand Television (NZTV) covers the illegal occupation of Hawai‘i by the United States. For the past week Dr. Keanu Sai has been meeting with tribal and political leaders in an act to raise awareness and gain support from Māori and New Zealanders on the illegal occupation of Hawai’i by the United States of America.
During his visit to New Zealand, Dr. Sai has met with Members of Parliament, a Cabinet Minister of the New Zealand government, Political Party Officials, Academics, and Tribal Leaders regarding the prolonged occupation of Hawai‘i by the United States. Dr. Sai brought to their attention the recent decision by the Swiss Federal Criminal Court specifically naming the State of Hawai‘i Governor Neal Abercrombie, Lt. Governor Shan Tsustui, the director of the Department of Taxation Frederik Pablo and his deputy Joshua Wisch, and the CEO of Deutsche Bank, Josef Ackermann.
In these meetings, Dr. Sai explained:
As my fellow countrymen and women are awakening to the stark reality that we’ve been under an illegal and prolonged occupation by the United States since the Spanish-American War, 1898, there are profound economic, legal and political ramifications that transcend Hawai‘i. My country was seized by the United States for military interests, and the belligerent occupation was disguised through lies and effected through a program of denationalization—Americanization—in the schools at the turn of the 19th century.
This revelation is reconnecting Hawai‘i to the international community and its treaty partners regarding the violations of rights and war crimes committed against the citizens and subjects of foreign states who have visited, resided or have done business in the Hawaiian Islands. My country’s treaty partners include Austria, Hungary, Belgium, Denmark, France, Germany, Italy, Japan, Luxembourg, Netherlands, Portugal, Russia, Spain, Switzerland, Sweden, Norway, the United States, and the United Kingdom, to include Antigua and Barbuda, Australia, The Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, New Zealand, Papua New Guinea, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Solomon Islands, and Tuvalu, as member states of the Commonwealth Realm.
The State of Hawai‘i has evaded a precise definition of standing in international law because it has pretended to be a government within the territorial borders of the United States, when in fact it is a private organization operating outside of the United States. The U.S. Congress created the State of Hawai‘i in 1959 by a Congressional Act, but since Congress has no extra-territorial effect it could not vest the State of Hawai‘i with governmental powers outside of its territory in an occupied state. According to the laws and customs of war, the State of Hawai‘i is defined as an Armed Force of the United States, which pretends to be a government.
As an Armed Force, the State of Hawai‘i is presently operating from a position of no lawful authority, and everything that it has done and that it will do is unlawful. From the creation and registration of commercial entities, the collection of tax revenues, the conveyance of real estate, to judicial proceedings, the State of Hawai‘i cannot claim to be a government de jure. This has the potential of generating catastrophic economic, legal and political ramifications in foreign countries, and the mandate for some of these countries, which includes New Zealand (International Crimes and International Criminal Court Act 2000), is to prosecute war crimes committed in the Hawaiian Islands under universal jurisdiction.
Her British Majesty Queen Victoria was the first to recognize Hawaiian independence in a joint proclamation with the French on November 28, 1843, and subsequently entered into a Treaty of Friendship, Commerce and Navigation on July 10, 1851. In 1893, my country maintained a Legation in London, and two Consulates in the cities of Auckland and Dunedin, and the United Kingdom maintained a Legation and a Consulate in Honolulu. These Consulates were established in accordance with Article XII of the 1851 Hawaiian-British Treaty, which provides:
“It shall be free for each of the two contracting parties to appoint consuls for the protection of trade, to reside in the territories of the other party; but before any consul shall act as such, he shall, in the usual form, be approved and admitted by the Government to which he is sent; and either of the contracting parties may except from the residence of consuls such particular places as either of them may judge fit to be excepted. The diplomatic agents and consuls of the Hawaiian Islands, in the dominions of Her Britannic Majesty, shall enjoy whatever privileges, exemptions and immunities are, or shall be granted there to agents of the same rank belonging to the most favored nation; and, in like manner, the diplomatic agents and consuls of Her Britannic Majesty in the Hawaiian Islands shall enjoy whatever, privileges, exemptions, and immunities are or may be granted there to the diplomatic agents and consuls of the same rank belonging to the most favored nation.”
The New Zealand Government’s recent creation of the New Zealand Consulate General in Honolulu was established by virtue of Article 16 of the 1794 Treaty of Amity, Commerce and Navigation between Great Britain and the United States, also called the “Jay Treaty,” and not the Hawaiian-British Treaty. Therefore, the New Zealand Consulate in Honolulu stands in direct violation of the Hawaiian-British Treaty, and therefore is unlawful. This year, the Swiss authorities were faced with the same circumstances. In a decision by the Swiss Federal Criminal Court Objections Chamber this year, the Court concluded that the 1864 Hawaiian-Swiss Treaty was not cancelled and that the Swiss Consulate in Honolulu is unlawful. These decisions stemmed from war crime complaints filed with Swiss authorities by a Swiss expatriate residing in Hawai‘i and a Hawaiian subject. I represent both men in these proceedings.
The Court specifically named the CEO of Deutsche Bank and high officials of the State of Hawai‘i as alleged war criminals for committing the war crime of pillaging. Allegations of war crimes can only arise if there is an international armed conflict, and the evidence acquired by the Swiss Attorney General that was provided to the Court clearly established that an international armed conflict does exist between the Hawaiian Kingdom and the United States. According to customary international law, an international armed conflict is not limited to states engaged in hostilities, but also the military occupation of a state’s territory even if it occurred without armed resistance, i.e, Common Article 2, Geneva Conventions.
Report of the U.S. House Committee on Foreign Affairs – Annexation of Hawai‘i
ANNEXATION OF THE HAWAIIAN ISLANDS
(House Committee on Foreign Affairs Report to accompany H. Res. 259, May 17, 1898 (House Report no. 1355, 55th Congress, 2d session)
May 17, 1898.—Committed to the Committee of the Whole House on the state of the Union and ordered to be printed.
Mr. Hitt, from the U.S. Congress House Committee on Foreign Affairs, submitted the following
REPORT.
[To accompany H. Res. 259.]
The joint resolution (H. Res. 259) provides for the annexation of the Hawaiian Islands to the United States. The proposition is not new either to the Government of the little Commonwealth in the Pacific, to the United States, or to other nations. It has been apparent for more than fifty years that so small and feeble a Government could not maintain its independence, and that it must ultimately be merged into a greater power. It has been repeatedly seized and Honolulu occupied, and has repeatedly made overtures to the United States to be united with us. In 1829 the French commander, Laplace, seized Honolulu and held it for awhile, after forcing upon the government a harsh treaty. In 1843 it was seized by the British commander, Lord Pawlet, but subsequently released by Great Britain upon the remonstrances of other powers. It was again seized by the French in 1849 and held for a considerable time, but was evacuated after diplomatic pressure from England and the United States.
In 1851 the King, pressed by his perplexities with France and England, delivered to our commissioner a deed of cession of the islands to the United States, to be held until a satisfactory adjustment had been reached with France, and failing that, permanently. In 1854 our Secretary of State, Mr. Marcy, authorized the negotiation of an annexation treaty. The King made a draft satisfactory to him and modifying the one proposed, but before the conclusion was reached he died. In 1893 a treaty was negotiated between our government and that of the Hawaiian Islands for the annexation of the islands to the United States. No word of protest was uttered by any other government. This treaty, while pending before the Senate, was withdrawn by the President, a change of administration having taken place. Again, June 16, 1897, a treaty of annexation, similar in provisions to the joint resolution now proposed, was agreed to by the government of Hawaii and duly ratified by their Senate.
There is, therefore, no undue pressure on the part of the United States as a greater power; no surprise of any one; no possibility of objections by other governments. It is simply the obvious result of the natural course of events through a long period of years thus completed with the cordial consent of the sovereign powers of both Governments. The only question involved is whether the proposed possession of the Hawaiian Islands would be advantageous to the United States.
THEIR STRATEGIC IMPORTANCE.
Recent events In the existing war with Spain have called public attention to what has long been discussed by military and naval authorities—the inestimable importance to the United States of possessing the Hawaiian Islands in case of war with any strong naval power. They lie facing our Pacific coast. Their strategic importance is vastly increased by the fact that they are separated by thousands of miles from any other and more distant group in the northern Pacific Ocean and are the only group facing our coast. In the possession of an enemy they would serve as a secure base for attacking any and all of our Pacific coast cities. In our possession they would deprive the enemy s fleet of all facilities for coaling, supplies, or repairs, and speedily paralyze all his naval operations. The first object of an enemy attacking us on that side of the Republic would be to secure these islands, and in their present condition their possession would fall to the stronger naval power.
The leading nations—England, France, Germany, Japan, Spain, and the United States—have each a Pacific Squadron. Every one of these squadrons is stronger than ours save that of Spain, which is the weakest. Had the war in which we are now engaged been with any of the other powers they might have worsted our fleet and seized the Hawaiian Islands, which are not now defended by any fortification or cannon, thus exactly reversing our recent good fortune at Manila. They would then have had a convenient base for supplies, coal, and repairs, from which to actively harry and devastate our coast. But were we in complete possession of the Hawaiian Islands and they properly prepared for defense (which eminent officers of the Army and Navy stated to the committee could be done at a cost of $500,000), our fleet, even if pressed by a greatly superior sea power, would have an impregnable refuge at Pearl Harbor, backed by a friendly population and militia, with all the resources of the large city of Honolulu and a small but fruitful country. Holding this all important strategic point, the enemy could not remain in that part of the Pacific, thousands of miles from any base, without running out of coal sufficient to get back to their own possessions. The islands would secure both our fleet and our coast.
GENERAL SCHOFIELD’S VIEW.
As General Schofield stated to the committee—
“The most important feature of all is that it economizes the naval force rather than increases it. It is capable of absolute defense by shore batteries, so that a naval fleet, after going there and replenishing its supplies and making what repairs are needed, can go away and leave the harbor perfectly safe to the protection of the army. * * * The Spanish fleet on the Asiatic station was the only one of all the fleets we could have overcome as we did. Of course, that cannot again happen, for we will not be able to pick up so weak a fellow next time. We are liable at any time to get into a war with a nation which has a more powerful fleet than ours, and it is of vital importance, therefore, if we can, to hold the point from which they can conduct operations against our Pacific coast. Especially is that true until the Nicaragua Canal is finished, because we can not send a fleet around from the Atlantic to the Pacific.”
The same eminent and experienced soldier, when asked whether it would be sufficient to have Pearl Harbor without the islands, said we ought to have the islands to hold the harbor; that if left free and neutral complications would arise with foreign nations, who would take advantage of a weak little republic with claims for damages enforced by warships, as is frequently seen. If annexed we would settle any dispute with a foreign nation; that we would be much stronger if we owned the islands as part of our territory, and would then also have the resources of the islands, which are so fertile, for military
supplies; that if we do not have the political control they may become Japanese, and we would be surrounded by a hostile people.
Admiral Walker, who has had long experience in the waters of the Hawaiian Islands, emphatically confirmed the views of General Schofield, especially that it would cost far less to protect the Pacific coast with the Hawaiian Islands than without them; that it would be taking a point of vantage instead of giving it to your enemy.
RISK OF DELAY.
We must face the future in dealing with this proposed annexation. It is impossible for the Republic of Hawaii to maintain a permanent existence preserving in force the influences which are now in the ascendant there and which are cordial and friendly to the United States. Of its mixed population of 109,000 a powerful element is Japanese—24,407—of whom 19,212 are males, almost all of them grown men, for they are not divided as ordinary populations are in the usual proportions of men, women, and children. They are a far stronger element of physical force than the native race, which has diminished until there are now only thirty-odd thousand, of whom, by the usual proportions of population, there are not over 8,000 grown men. The native Hawaiian race cannot in any contingency control the island. It must fall to some foreign people.
The Japanese are intensely Japanese, retaining their allegiance to their Empire and responding to suggestions from the Japanese officials. Very many of them served in the recent war with China. The Japanese Government not long ago demanded of the Hawaiian Government, under their construction of a treaty made in 1871, that the Japanese in the Hawaiian Islands should have equal privileges with all other persons, which would include voting and holding office. This claim was made when a flood of Japanese subjects, under the supervision of the Government of that country, of from 1,000 to 2,000 per month, were being poured into the Hawaiian Islands, threatening a speedy change of the Government into Japanese hands, and ultimately to a Japanese possession. The demand was resisted by the little Republic and a treaty of annexation with the United States arrested it for a time.
Japan protested earnestly to our government against that treaty, but our Secretary of State refused to consider their protest; yet the Japanese government has not withdrawn its demand on the Hawaiian Government, and is waiting to renew and press it with more energy and success if annexation to the United States s rejected by this Congress. It could then in a few months throw many thousands of Japanese subjects into the Hawaiian Islands, completely overwhelming all other influences.
By a clause in our reciprocity treaty with the Hawaiian Islands we have right to establish and maintain a coaling and repair station in Pearl Harbor, which is about 8 miles from the city of Honolulu, and capable of being made one of the best harbors in the world, easily fortified to make it impregnable from the sea. It is the only harbor of such a character in the whole group. We have thus far done nothing toward taking possession, fortifying, or opening the channel into the harbor, so that it is at present utterly useless, but capable of infinite possibilities.
The grant of this harbor to our Government is a part of a reciprocity treaty. After that treaty had been ratified, but before the ratification had been exchanged, the Hawaiian minister and the Secretary of State of the United States exchanged notes which declared that our rights in Pearl Harbor would cease whenever the reciprocity treaty was terminated. That treaty may be terminated upon one year’s notice by either party. It grants advantages in our markets to Hawaiian trade, and concedes to us not only the use of Pearl Harbor, but excludes any other nation from leasing a port or landing, or having any special privilege in the Hawaiian Islands, without the consent of the United States.
With the Japanese element in the ascendant and the Government under Japanese control the treaty would be promptly terminated, and with it our special rights. This would be the first step taken by that active and powerful Government toward the complete incorporation of the islands into the Japanese Empire, and their possession as a strategic point in the northern Pacific from which her strong and increasing fleet would operate. The Japanese Government is now friendly, but that would be the manifest dictate of enlightened self-interest to a wise Japanese statesman.
Annexation, and that alone, will securely maintain American control in Hawaii. Resolutions of Congress declaring our policy, or even a protectorate, will not secure it. The question of a protectorate has been successively considered by Presidents Pierce, Harrison, and McKinley in 1854, 1893, and 1897, and each time rejected because a protectorate imposes responsibility without control. Annexation imposes responsibility, but will give full power of ownership and absolute control.
AMERICAN COMMERCIAL INTERESTS.
The commercial interests of the United States, according to the declarations of our most eminent public men, would be promoted and secured by the union of the two countries. In those islands is an American colony numbering over 3,000 persons, who own practically three-fourths of all the property in the country, and, under the fostering Influence of the reciprocity treaty, trade with the United States has so increased that we now consume almost all Hawaiian exports. The people of the islands purchase from us three-fourths of all their imports, and American ships carry three-fourths of all the foreign trade of the island. American influence is ascendant in the Government, and the character of the American statesmen there in power was forcibly described by Mr. Willis, our minister to Hawaii, who was sent there by Mr. Cleveland in a spirit of hostility to them, but who was a truthful, honorable man, in these words: “They are acknowledged on all sides to be men of the highest integrity and public spirit.”
Hawaiians of American origin are energetic, intelligent, and patriotic, and are holding that outpost of Americanism against Asiatic invasion. If annexation be rejected and foreign influence gets control of the islands, our interests and commerce will fall away. The American in Hawaii looks to the United States to make purchases and there he desires to send what he exports. The Japanese merchant very naturally buys all he can in Japan, and will turn all trade there that is in his power. Our trade with the Hawaiian Islands last year amounted to $18,385,000, and with annexation practically the whole trade with the Hawaiian Islands would come to the United States, and would rapidly increase.
We have now the larger part of the shipping business, 247 American ships being employed in carrying Hawaiian trade in 1896, which would be promoted and increased by annexation. Its past prosperity has depended upon the reciprocity treaty, and if that were abrogated by a party adverse to American interests gaining control this business, like all other American interests, would fall off.
ANNEXATION WOULD END FOREIGN COMPLICATIONS.
In the struggling interests that have recently come into play in the Pacific the separate existence of the Hawaiian Government is liable at any time to raise complications with foreign governments, as in the case mentioned above of the recent interposition of Japan. An independent feeble government is a constant temptation to powerful nations, in the stress of contending interests, to intermeddle and disturb the peace. Once incorporated into the territory of the United States, all this is done away.
CHARACTER OF THE POPULATION.
While the character of the comparatively small population of the Hawaiian Commonwealth is a minor consideration as compared with the transcendent importance of the possession of that strategic point in the Pacific, it may be briefly considered. It is a mixed population, 24,407 Japanese and 21,616 Chinese, or together nearly one-half of the entire 109,020 on the island; but after annexation the Asiatic element would be reduced. The contract system would be terminated, and United States restriction laws as to immigration would be applied. The Hawaiian penal code (paragraph 1571) would gradually send back the Chinese laborers. This annexation joint resolution forbids further Chinese immigration, and under it those now in Hawaii can not come to other parts of the United States. Our recent treaty with Japan, to go into effect next year enables the United States to regulate the immigration of Japanese laborers. The supply being cut off, the number of Asiatics remaining in Hawaii would be very rapidly reduced by natural causes, which are plainly shown by the movements of the Asiatic population in past years; for since 1893, though the flood of Japanese coming in has been strong, the departures each year have been half as many as the arrivals. Like the Chinese, when they have accumulated a moderate competence, the craving for home takes them back. The enormous excess of men coming shows on its face that they do not come to Hawaii to establish homes. The Hawaiian laws exclude them from homestead rights.
These constant and powerful causes operating, if annexation were carried out the Asiatic proportion of the population would rapidly diminish. There is a large element of what are called Portuguese—15,191—but of these, who are a quiet, laborious population, over 7,000 have been born there, educated in the public schools, and speak English as readily as the average American child. They are a useful, orderly people, and rapidly assimilate the American ideas and institutions which now prevail on the islands.
The British element, 2,250, the German, 1,432, and others of European origin, probably 1,000, are elements with which we are perfectly familiar in our own country, which readily sympathize and blend with our own people. They will naturally adhere and cooperate as against Asiatic influence. The native Hawaiian race is decreasing from year to year by some mysterious law which has been in operation for a century. It is reasonable to suppose that within ten years after annexation the inconsiderable population of these islands will not differ widely in character from that of many parts of the United States.
Some effort has been made to that our beet-sugar Industry would be retarded by the admission of Hawaii and the free admission of its sugar product. Raw Hawaiian sugar is now admitted free of duty under the reciprocity treaty. There is so little of it, altogether amounting to not one-tenth of our consumption, that it can not affect the general price of sugar one-tenth of a cent a pound. There are but 80,000 acres of natural sugar-cane lands In Hawaii, and they are all under cultivation, unless it be possibly some that might e irrigated by pumping water from 150 to 600 feet.
There would be one difference after annexation as to the restriction upon Hawaiian sugar. At present, under the reciprocity treaty, all unrefined Hawaiian sugar is admitted free of duty, but not refined sugar. After annexation both refined and unrefined would be admitted free and sugar-refining interests in this country may object to annexation.
It has been objected that the constitution does not confer upon Congress the power to admit “territory,” but only “States.” The same objection was raised to the acquisition of the Louisiana Purchase in 1803, because there was nothing in the Constitution expressly authorizing such admission by treaty, and Jefferson himself, who made the purchase, shared the doubt. But we have made eleven such acquisitions of territory, and the courts have sustained such action in all cases. Texas was annexed by a joint resolution of Congress similar to the one proposed now. The island of Navassa, in the Caribbean Sea, and many others have been made territory of the United States under the act of August 18, 1856, authorizing American citizens to take possession of unoccupied guano islands. They are United States territory, subject to our laws. So Midway island in the Pacific, 1,000 miles beyond Hawaii, was occupied, and Congress appropriated $50,000, which was expended trying to create a naval station there. The principle is that the power to acquire territory is an incident of national sovereignty.
The acquisition of these islands does not contravene our national policy or traditions. It carries out the Monroe doctrine, which excludes European powers from interfering in the American continent and outlying islands, but does not limit the United States; and this doctrine has been long applied to these very islands by our Government. As Secretary Blaine said, in 1881—
“The situation of the Hawaiian Islands, giving them strategic control of the north Pacific, brings their possession within range of questions of purely American policy.”
The annexation of these islands does not launch us upon a new policy or depart from our time-honored traditions of caring first and foremost for the safety and prosperity of the United States.
The committee recommend the adoption of the resolutions.
Truthout: Hawai‘i’s Legal Case Against the United States
By Jon Letman, Truthout
“You can’t spend what you ain’t got; you can’t lose what you ain’t never had.” – Muddy Waters
“How long do we have to stay in Bosnia, how long do we have to stay in South Korea, how long are we going to stay in Japan, how long are we going to stay in Germany? All of those: 50, 60 year period. No one complains.” – Sen. John McCain
Imagine if you grew up being told that you had been adopted, only to learn that you were, in fact, kidnapped. That might spur you to start searching for the adoption papers. Now imagine that you could find no papers and no one could produce any.
That’s how Dr. David Keanu Sai, a retired Army Captain with a PhD in political science and instructor at Kapiolani Community College in Hawaii, characterizes Hawaii’s international legal status. Since 1993, Sai has been researching the history of the Kingdom of Hawaii and its complicated relationship to the United States.
Over the last 17 years, Sai has lectured and testified publicly in Hawaii, New Zealand, Canada, across the US, at the United Nations and at the Permanent Court of Arbitration at The Hague on Hawaiian land issues on Hawaii’s international status and how Hawaii came to be regarded as a US territory and, eventually, the 50th state.
To explain why he and others insist that Hawaii is not now and never has been lawfully part of the United States, Sai presents an overview of Hawaii’s feudal land system and its history as an independent, sovereign kingdom prior to the overthrow of Queen Liliuokalani on January 16, 1893.
Sai likens his lectures to a scene in the film The Matrix in which the character Morpheus tells Neo, “Remember, all I’m offering is the truth. Nothing more.”
“You guys are going to swallow the little red pill and will find that what you thought you knew may not be what actually was,” Sai warns his audiences. Like The Matrix, which is an assumption of a false reality, Hawaii’s history needs to be reexamined through a legal framework, he says. “What I’ve done is step aside from politics and power and look at Hawaii not through an ethnic or cultural lens, but through the rule of law.”
“A lot of sovereignty groups assume they don’t have it. Sovereignty never left. We just don’t have a government.” – Dr. David Keanu Sai
Sai’s lectures review history from 1842, when the Hawaiian Kingdom under King Kamehameha III sent envoys to France, Great Britain and the United States to secure recognition of Hawaii’s sovereignty. US President John Tyler recognized Hawaiian independence on December 19, 1842, with France and Great Britain following in November of 1843. November 28 became recognized as La Kuokoa (Independence Day).
Over the next 44 years, Hawaiian independence was recognized by more than a dozen countries across Europe, Asia and the Pacific, with each establishing foreign embassies and consulates in Hawaii. By 1893, the Kingdom of Hawaii had opened 90 embassies and consulates around the world, including Washington, DC, with consul generals in San Francisco and New York. The United States opened its own embassy in Hawaii after entering into a treaty of friendship, commerce and navigation on December 20, 1849.
In 1854, in response to concerns about naval battles potentially being fought in the Pacific region during the Crimean war, King Kamehameha III declared Hawaii to be a neutral state, a “Switzerland of the Pacific.”
As recently as 2005, the 9th Circuit Court of Appeals acknowledged that in 1866, “the Hawaiian Islands were still a sovereign kingdom”; prior to that, in 2004, the Court referred to Hawaii as a “co-equal sovereign alongside the United States.” Likewise, in 2001, the Permanent Court of Arbitration at The Hague acknowledged in an arbitration award that “in the 19th 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 … .”
Hawaii’s fate changed forever on January 16, 1893 when, motivated by influential naval officer Alfred Thayer Mahan and the US Ambassador to Hawaii – with support from an expansionist US Congress wishing to extend its military presence into the Pacific – US troops landed on Oahu in violation of Hawaiian sovereignty and over the protest of both the Governor of Oahu and the Kingdom of Hawaii’s Minister of Foreign Affairs.
One day later, six ethnic European Hawaiian subjects, including Sanford Dole and seven foreign businessmen, under the name the “Citizen’s Committee of Public Safety,” with the protection of the US military, formally declared themselves to be the new provisional government of the Hawaiian Islands – effectively a bloodless coup.
This marriage of convenience between non-ethnic Hawaiian subjects who wished to operate their sugar cane businesses tariff-free in the American market and a US government and military seeking to advance its own position in the Pacific conspired to overthrow the government of a sovereign foreign nation, Sai tells his audiences.
One month later, members of a group claiming to be the new provisional government of Hawaii traveled to Washington, where they signed a “treaty of cession” which went from President Benjamin Harrison to the US Senate. Queen Liliuokalani’s protests to Harrison were ignored.
When the new US president Grover Cleveland assumed power, he was promptly presented with the Queen’s protest demanding an investigation of their diplomat and US troops, as well as of the coup. Cleveland, after withdrawing the treaty before it could be ratified by the Senate, initiated an investigation called the Blount Report. The investigation found that both the US military and the US Ambassador to Hawaii had violated international law and that the US was obliged to restore the government of the Hawaiian Kingdom to its pre-overthrow status.
In November of 1893, President Cleveland negotiated an agreement to fully restore the government of Queen Liliuokalani under the condition she grant amnesty to all involved in her overthrow. A formal declaration accepting Cleveland’s terms of restoration came from the queen in December 1893.
This executive agreement between President Grover Cleveland and Queen Liliuokalani, Sai says, is binding under both international and US federal law and precludes any other legal actions under the doctrine of estoppel. Yet the US Congress obstructed President Cleveland’s efforts to fulfill his agreement with the queen, just as a self-proclaimed provisional government named itself the “Republic of Hawaii.”
By the spring of 1897 Cleveland had left office, succeeded by President William McKinley. Soon after, representatives of the “Republic of Hawaii” attempted to fully cede all public, government and crown lands to the United States, even as Liliuokalani continued protesting to the US State Department.
In support of the queen and fighting attempts to cede Hawaii, some 38,000 Hawaiian subjects signed petitions against annexation, and by March of 1898, a second attempt to annex Hawaii failed.
Here things accelerate, Sai explains. With the outbreak of war with Spain in April 1898, the drive to expand US naval power into the Pacific to counter Spanish influence in the Philippines and Guam reached a new urgency.
Two weeks after declaring war on Spain, US Rep. Francis Newlands (D-Nevada) submitted a resolution calling for the annexation of Hawaii by the United States. Influential military figures like Rear Admiral Alfred T. Mahan and General John Schofield testified that the possession of Hawaii by the United States was of “paramount importance.” It was in this atmosphere that the Newlands Resolution moved from the House to the Senate and became a joint resolution which President McKinley signed, claiming to have successfully annexed the Hawaiian Islands.
On August 12, 1898, the Hawaiian flag was lowered, the American flag raised, and the Territory of Hawaii formally declared.
But Sai points out that a Congressional joint resolution is American legislation restricted to the boundaries of the United States. The key to Hawaii’s legal status, he says, remains with the 1893 executive agreement between two heads of state: President Grover Cleveland and Queen Liliuokalani.
Unlike other land acquisitions made by cession and voluntary treaties with the French, Spanish, British, Russia and the 1848 Guadalupe Hidalgo Treaty that ended the Mexican-American war, Sai notes there is no treaty of cession, and thus no ceded lands, by then-acting head of state Queen Liliuokalani.
Today, one hundred and seventeen years after US Marines landed on Oahu and helped coup leaders overthrow the Hawaiian Kingdom, what Sai calls “the myth of Hawaiian statehood” is perpetuated, indeed celebrated, on the third Friday of each August, as Statehood Day.
“America today can no more annex Iraq through a joint resolution than it could acquire Hawaii by joint resolution in 1898. Saddam Hussein’s government, the Baathist party … was annihilated by the United States. But by overthrowing the government, that did not also mean Iraq was overthrown as a sovereign state. Iraq still existed, but it did not have a government,” says Sai.
In his doctoral dissertation, Sai successfully argued that to date, under international laws, Hawaii is in fact not a legal territory of the Unites States, but instead a sovereign kingdom, albeit one lacking its own acting government.
The entity that overthrows a government, Sai says, bears the responsibility to administer the laws of the occupied state.
Sai says that despite what people have been led to believe, the Congressional joint resolution and US failed attempts to annex Hawaii are American laws limited to American territory. He stresses that the executive agreement of 1893 between President Cleveland and Hawaii’s Queen continues to take precedence over any other subsequent actions.
Sai says this all has the potential to completely alter any claims on public or private land ownership, all State of Hawaii government bodies and the presence and activities of the US military in Hawaii, specifically the US Pacific Command (PACOM), the preeminent military authority overseeing operations in the Pacific, Oceania and East Asia.
Among the potential impacts of Sai’s argument is the possibility that the United States’ oldest and arguably most important strategic power center (PACOM’s headquarters are at Camp Smith, near Pearl Harbor) is now facing a legal challenge and occupies territory of questionable legal status.
Sai has presented this information not only in arbitration proceedings at the Permanent Court of Arbitration at the World Court at the Hague and in a complaint filed with the UN Security Council, but in 2001, at the invitation of Lieutenant General James Dubik, before the officer’s corps of the 25th Infantry Division at Schoefield Barracks on Oahu.
After Sai’s presentation before some one hundred officers and their spouses, he says, “You could hear a pin drop. They knew what I was talking about — I didn’t have to say ‘war crimes.'” Sai cited the regulations on the occupation of neutral countries in Hague Convention No. 6.
University of Hawaii Press, which reviewed and approved Sai’s dissertation for publication, indicates Sai’s arguments have “profound legal ramifications.” Sai himself says the case calls into question the legal authority of Senator Daniel Inouye, President Obama and others. After all, both Daniel Inouye and Barack Obama were born in Hawaii which, Sai points out, is not a legal US territory.
On June 1, 2010, Sai advanced his case and filed a lawsuit with the US District Court for the District of Columbia naming Barack H. Obama, Hillary D. R. Clinton, Robert M. Gates, (now former) Governor Linda Lingle and Admiral Robert F. Willard of the US Pacific Command as defendants.
Sai cites the Liliuokalani assignment of executive power as a binding legal agreement which extends from President Cleveland to all successors, including President Obama and his administration, to administer Hawaiian Kingdom law prior to restoring the government.
In the suit, Sai seeks a judgment by the court to declare the 1898 Joint Resolution to provide for annexing the Hawaiian Islands to the United States to be in violation of Hawaiian sovereignty and unconstitutional under US law.
In November, Sai sought to add to the suit as defendants the ambassadors of 35 countries which he says unlawfully maintain consulates in Hawaii in violation of Hawaiian Kingdom law and treaties. These countries include China, India, Russia, Brazil, Australia, Japan and smaller nations like Kiribati, Palau and the tiny enclave of San Marino.
With such a bold case that challenges the very top tier of the United States government and military, it isn’t surprising that not everyone supports Sai’s approach. Some Hawaiian activists privately say Sai’s efforts have the potential to adversely impact other forms of federal recognition such as the Akaka Bill, while others express concerns that such a lawsuit could be at best ineffective and, at worst, result in bad laws.
“In the creation of a society, it’s not only historical justification upon which we need to build Hawaiian sovereignty. We need to bring about better quality of life after independence returns.” – Poka Laenui
Poka Laenui, chairman of the Native Hawaiian Convention, an international delegation of Hawaiians which examines the issues of Hawaiian sovereignty and self-governance, says he does not dispute Sai’s historical claims, nor does he disagree that the US occupies the Hawaiian Islands in violation of international law. He says Sai has made a “very positive contribution.”
He does, however, suggest that Sai’s efforts toward deoccupation could go further or be more inclusive. “I believe what should also be included is decolonization. Along with [Sai’s] analysis, there are many more approaches that are legitimate.”
“Decolonization is a very viable position as well. I’m saying occupation and colonization are on the same spectrum, but colonization goes far deeper. It affects economics, education and value systems like we have in Hawaii today.”
“Hawaii has been squarely named as a country that needs to be decolonized and the US has not followed the appropriate, very clear procedures already set out.” Laenui points out that the United States listed Hawaii as a territory to be decolonized in 1946 in the UN General Assembly Resolution 66 (1).
“We need not only to look at the historical, legal approach, but beyond that … we need to change the deep culture of Hawaii to build a better quality of life,” Laenui says.
Lynette Hiilani Cruz is president of the Ka Lei Maile Alii Hawaiian Civic Club and an assistant professor of anthropology at Hawaii Pacific University. She supports Sai’s efforts and says he provides a “dependable legal basis” for challenging the legality of US claims on Hawaii.
But she also points out there are native Hawaiians who, in spite of the history, are reluctant to associate themselves with the kind of legal challenge Sai is pursuing.
And while some would rather forget historical events, Cruz says, “It is our history, whether you like it or not.” Cruz suggests people visit Sai’s website <hawaiiankingdom.org> and study the original historical documents in order to better understand the basis for Sai’s legal claims.
Dr. Kawika Liu, an inactive attorney with a PhD in politics and a practicing physician, says, “I support many canoes going to the same destination. I’m just a little leery of potentially ending up in a Supreme Court that is extremely hostile to indigenous claims. From my perspective, having litigated a number of native Hawaiian rights cases, I am not sure Sai will make it past procedural matters.”
Liu believes Sai’s characterization of historical and political events is accurate, but says, “You can be very correct in the way you characterize history and still be shot down because of issues of jurisdiction.”
“We’re operating in the courts of the colonizer … and they have their own agenda, which is, to me, reinforcing US hegemony.”
Liu sees the greatest benefit of Sai’s work as raising awareness of the issue. “I think the more awareness that’s raised – eventually the change is going to come.”
One academic who thinks Sai is on the right track is Dr. Jon Kamakawiwoole Osorio, professor of Hawaiian studies at the University of Hawaii. Osorio specializes in the politics of identity in the Hawaiian Kingdom and the colonization of the Pacific and served on Sai’s dissertation committee.
He says Sai knows international law and the laws of occupation as they pertain to Hawaii as well as any academic in Hawaii today.
Yet he recognizes Sai has detractors – those who feel that any kind of interpretation which exalts Western law does a disservice to native people and institutions which thrived without those laws for millennia. Osorio also says that while arguing that Hawaii has a solid international case sounds really good, it doesn’t go very far if the US government simply refuses to acknowledge that case or respond in any way.
So does Osorio think Sai’s efforts are counterproductive or a waste of time?
“I don’t think that’s the case,” Osorio says. “I think most people believe Keanu Sai has really added a tremendous new perspective of the kingdom, lawmaking and the creation of constitutional law in Hawaii.”
He also believes Sai’s argument that sovereignty, once conferred, doesn’t disappear just because it is occupied by another country.
What Sai may be pursuing, Osorio suggests, is to push for a definitive stance by the US government which may take the form of a denial that Hawaiians can claim sovereignty.
“I think Sai’s attempt to push the US, to corner it and force it to acknowledge that it holds Hawaii only by raw power … is an important revelation that would have really important political ramifications.”
“Sai says our sovereignty is still intact. That has been a tremendous gift for the Hawaiian movement because it keeps many of us pursuing independence from the United States instead of simply settling for some other kind of status (such as the Akaka Bill) because we feel like we aren’t legally entitled to it,” Osorio says.
“The violence done against the Hawaiian kingdom at the end of the [19th] century was no less violent just because not a lot of people were killed,” Osorio says. “It violated our laws, it violated our trust, it violated the relationship between our people and our rulers and it continues to this day to stand between any kind of friendly relations between Hawaiians who know this history and the United States.
“Sai’s analysis helped many of us to understand more completely that we don’t have to think of ourselves as Americans — ever.”
Ho‘i I Ka Piko: Island Wide Solstice Prayer for Mauna Kea
Hawai‘i Island: La Ho‘iho‘i Ea (Restoration Day) Celebration
In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”
While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe. News 
of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.
The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.
The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.
Video: Kanaka Express Show on Hawai‘i’s Prolonged Occupation
Kanaka Express Host Kale Gumapac interviews Dr. Keanu Sai, Attorney Dexter Ka‘iama and Professor Kaleikoa Ka‘eo. The three being interviewed share their work regarding the prolonged occupation of the Hawaiian Kingdom and the movement to ultimately bring the American occupation to an end. The show was filmed at the Akaku studio in Kahului, Maui on May 20, 2015.
Hawaiian Kingdom Blog Named Best of Law Blogs
On June 5, 2015, YouBlawg has twittered the Hawaiian Kingdom blog (@HKSpokesperson) to be the best of the law blogs. YouBlawg is based in the United Kingdom.
From its website: “YouBlawg is a law blog or “blawg” founded by former lawyer Gavin Ward in 2010 and is designed for law firms, lawyers, law students and other legal professionals to contribute their own legal knowledge and opinions on legal news, with the aim of helping consumers and businesses to find valuable legal information and connect them with the best lawyer for them.”
Alleviating the Confusion: Swiss Criminal Procedures In Light of Civil Law Tradition
What people may not know is that Switzerland’s criminal procedures are very different from the United States. Switzerland operates under a “civil law tradition” while the United States operates under a “common law tradition” that came from the English common law because the original thirteen States of the United States were formerly British colonies. In contrast, the civil law has codes and the common law does not. Civil law countries provide legal codes that explain all matters that can be brought before the courts, the applicable procedure of criminal investigations, the punishment for crimes, and trial. Switzerland’s codes are the Swiss Criminal Code (SCC) and the Swiss Criminal Procedure Code (SCPC). Common law countries do not provide comprehensive codes, but rather rely on numerous statutes and precedence set by decisions of judges, which is called stare decisis.
A very good compare and contrast of the two legal systems can be found in Dr. Vivienne O’Connor’s publication “Common Law and Civil Law Traditions.”
Another contrast is that in common law countries, judicial proceedings are adversarial between the prosecutor and the defendant, with the judge merely serving as the referee. In civil law countries, the proceedings are not adversarial and the judges play an integral role in both the criminal investigation stage as well as the trial stage. Under Swiss law (Article 17, SCPC), as in most civil law countries, judges can conduct criminal investigations, in addition to the police and the prosecutor. In Switzerland, these judges are called investigating magistrates and have more expanded powers than the prosecutor or police. Once an investigating magistrate concludes the criminal investigation he/she can seek indictments, and then the evidence and interviews that were conducted would be turned over to another judge or set of judges who will preside over the criminal trial. Jury trial is a common law tradition and not civil law. There are no jury trials in civil law countries, which includes Switzerland.
According to Dr. O’Connor, “International treaties and conventions also are sources of law in civil law countries. Most civil law countries are ‘monist’ meaning that when the country ratifies a treaty, it automatically becomes part of domestic law. This means that a judge can automatically apply it and a party in court can rely on international law in proceedings. In some countries, the judge can declare a national law or provision to be invalid if it conflicts with an international treaty or convention that the country has ratified.”
The Swiss Criminal Code provides for the Federal Attorney General to conduct criminal investigations for war crimes, but their decisions are subject to review by the “objections authority” of the Swiss Federal Criminal Court if someone is objecting to “the procedural acts and decisions [of an investigating magistrate, prosecutor or police] not subject to appeal (Article 20, SCPC).” This was the role the objection chambers of the Swiss Federal Criminal Court held in the case of Mr. Kale Gumapac and the unnamed Swiss citizen who were alleging that war crimes were committed against them in the Hawaiian Islands.
What is the significance of the Swiss Federal Criminal Court’s reciting of Gumapac’s invoking his rights as a Hawaiian subject under the 1864 Hawaiian-Swiss treaty, “which wasn’t cancelled”? At first, it may appear that the Court was merely reciting Gumapac’s position that the treaty wasn’t cancelled, but did Gumapac state or even imply that it was he who was stating that the treaty wasn’t cancelled, or was it the three-judge panel that made that conclusion. The Court in making specific reference to Gumapac’s amended complaint dated January 22, 2015, stated, “that, in addition, by way of a letter dated January 22, 2015, [Dr. Keanu] Sai, in the name of Kale Kepekaio Gumapac…contacted the office of the Federal Attorney General and requested that criminal proceedings against Josef Ackermann…, the former CEO of Deutsche Bank National Trust Company…be opened and in this connection invoked rights deriving from Art. 1 of the friendship treaty between the Swiss Confederation and the then Hawaiian Kingdom of July 20, 1864, which has not been cancelled.”
In order to determine whether it was Gumapac who made this statement or the Court we need to look at what was stated in the amended complaint.
Gumapac, by his attorney-in-fact Dr. Sai, amended the original complaint dated December 7, 2014. The amended complaint states that Gumapac’s “initial complaint was based on universal jurisdiction, but in light of the fact that Josef Ackermann, who served as the Chief Executive Officer for Deutsche Bank when the war crimes were committed against [Gumapac], is a Swiss citizen, Mr. Gumapac is amending his complaint to include active personality jurisdiction and is invoking his rights as a Hawaiian subject under Article 1 of the 1864 Hawaiian-Swiss Treaty, which provides: “Hawaiians shall be received and treated in every canton of the Swiss Confederation, as regards their persons and their properties, on the same footing and in the same manner as now or may hereafter be treated, the citizens of other cantons.”
Active personality jurisdiction is when the accused is a Swiss citizen, and universal jurisdiction is where the alleged war crime was committed outside of Swiss territory by non-Swiss citizens against non-Swiss citizens.
The amended complaint then follows, “Therefore, according to Articles 118 and 119 of the Swiss Criminal Procedure Code (S-CPC), Mr. Gumapac is expressly declaring that he has suffered grave harm and respectfully demands that your office initiate an immediate investigation into the war crime of pillaging committed by Josef Ackermann being a Swiss citizen residing within the territory of the Swiss Confederation.” Gumapac made no statement that the treaty wasn’t cancelled, but rather was operating on the premise that the treaty remained binding on the Swiss authorities that were obligated to treat Gumapac in the same manner as Swiss citizens are treated in any of the cantons.
The question of whether or not a treaty has or has not been cancelled is a question of fact and not a question of law. The treaty itself will provide the process by which it can be terminated. For the Swiss treaty, Article VIII requires notice of intention to terminate by either of the contracting countries, and once the other country receives the notice of termination the treaty will terminate in 12 months. In the absence of any notice of termination, the “treaty will continue obligatory.”
Another way a treaty can be cancelled is if one of the countries that is a party to the treaty, ceases to exist as a country under international law. Without the existence of one of the parties there can be no treaty, because a treaty, by definition, is an agreement between two or more States. Therefore, if the Hawaiian Kingdom were annexed by the United States under international law, it would have consequently cancelled the Hawaiian-Swiss Treaty and replaced it with the U.S.-Swiss Treaty. This was specifically stated in the 1898 U.S. Congressional joint resolution of annexation, which read, “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations.”
A joint resolution of Congress has no force and effect beyond U.S. territory and, as such, cannot have the power to cancel the treaty between Switzerland and the Hawaiian Kingdom. In other words, the only way to annex Hawai‘i and to cancel its treaty with Switzerland was for the United States to have a treaty with Hawai‘i that would have the effect of merging Hawai‘i into the United States. Only then would it have the effect of canceling the treaty with Switzerland. However, there is no treaty, but rather only a unilateral Congressional action.
When the Swiss Federal Criminal Court stated that the Hawaiian-Swiss treaty “wasn’t cancelled,” it was not a conclusion of law, but rather a conclusion of fact that supported Gumapac’s invoking of his rights under Article 1 of the treaty. In his report dated February 3, 2015, the Prosecutor, himself, also made the same conclusion regarding the status of the treaty. The report (German) (English translation) stated, “On January 22, 2015, Kale Kepekaio GUMAPAC confirmed in writing the accusations against Joseph ACKERMANN and in addition pointed out his rights stemming from Art. 1 of the friendship treaty between the SWISS CONFEDERATION and the then HAWAIIAN KING of July 20, 1864, which was never cancelled.”
Again this statement that the treaty was never cancelled was the Prosecutor’s conclusion and not Gumapac’s. Both the Prosecutor and the three-judge panel made the statement that the Hawaiian-Swiss Treaty wasn’t cancelled. Therefore, there is no dispute between the Swiss authorities and the war crime victims as to the treaty’s continued existence.
When the Court received the objection to the decision made by the Prosecutor on April 8, 2015, the President of the Objections Chamber ordered, by letter dated April 9, 2015, that the Prosecutor turn over all records of his investigation. The order stated, “In the matter mentioned above, a complaint against your decision not to engage of February 15, 2015 has been received at the Federal Criminal Court. You are requested to furnish the Federal Criminal Court right away with the records established in the abovementioned matter (including documents of receipt) with an index of the records.” This is a clear example of the civil law tradition where judges are involved in a criminal investigation. In common law countries such as the United States, there is no judicial oversight of a prosecutor’s decision to conduct a criminal investigation.
The three-judge panel of the Federal Criminal Court’s Objection Chambers would not have restated the allegations of war crimes in its April 28, 2015 decision unless the alleged war crimes met the statutory definition of war crimes under Swiss law. If not, it would have been deemed frivolous in this preliminary stage of the investigation and the Swiss Criminal Court would have dispensed with the criminal investigation and make no mention of the allegations. Nowhere in the decision did the three-judge panel state or even imply that the Prosecutor’s decision was going to be upheld.
Even more stunning, the decision specifically named Josef Ackermann, former CEO of Deutsche Bank, and officials of the State of Hawai‘i—Governor Neil Abercrombie, Lieutenant Governor Shan Tsutsui, Director of Taxation Frederik Pablo, and Deputy Director of Taxation Joshua Wisch. Under the civil law tradition, the decision by the Objections Chamber of the Federal Criminal Court is a part of the criminal investigation stage of these proceedings.
For the purposes of Swiss law, a war crime is defined as an international armed conflict, as between two or more States, even when occupation of the other State takes place without any armed resistance. The Hawaiian Kingdom was occupied by the United States on August 12, 1898, when the United States was waging war in the Spanish colonies of the Philippines and Guam. This was very similar and analogous to the German occupation of Luxemburg from 1914-1918 as it was waging war against France during World War I. Both the American occupation of Hawai‘i and the German occupation of Luxemburg took place without armed resistance.
From the decision (German) (translation to English), it appeared that the three-judge panel was prevented from reversing the Prosecutor’s decision because of a technicality, which was failure to submit the objection to the Court within the 10-day period allowed by law. In this case, Swiss law (Article 20, SCPC) allows the objections authority of the Swiss Federal Supreme Court’s Criminal Law Section to accept an objection to a decision made by “courts of the first instance,” which, in this case, is the three-judge panel of the Swiss Federal Criminal Court. Again, here is another example under the civil law tradition of having another level of judges overseeing a criminal investigation.
On May 29, 2015, the Clerk’s office of the objections authority of the Swiss Supreme Court’s Criminal Law Section accepted the objection, and assigned it case number 6B_563/2015. The Clerk’s office stated that the proceedings are against the Federal Criminal Court, Objections Chamber, as well as the Office of the Swiss Federal Attorney General. It further stated, “Possible procedural orders, as far as necessary, will follow.”
ABC Radio Australia: Hawaiian TMT protestors get some official backing
San Diego Free Press: Protecting Mauna Kea – History for Haoles
Will Faulk, a journalist for the San Diego Free Press, has consented to the reprint of his article that was published online today April 29, 2015.
In the first essay of my Protecting Mauna Kea series, I made a mistake. I wrongfully described the ongoing, illegal American occupation of Hawai’i as an “annexation.”
Hawaiian friends of mine pointed this out to me and gave me a thorough history lesson. I was referred to documents, books, and websites that tell the truth. For the last several days, I’ve been reading everything I can on the subject.
The more I read, the more convinced I become not only that the Thirty Meter Telescope project lacks any legal right to build on Mauna Kea, but that international law, indeed American law itself, demands that the United States end it’s occupation of Hawai’i.
I have two hopes for this piece. First, I want to give a history lesson for haoles. “Haole” is the Hawaiian word for white person. I am specifically directing this lesson at white settlers – at haoles – because the first thing haoles can do is understand the history of violence we benefit from.
This history lesson will demonstrate that the current regime controlling Hawai’i is illegitimate and as such has no authority to enforce the construction of the TMT on Mauna Kea.
Second, I want to relieve Hawaiians from the responsibility of educating haoles. Hawaiians have no responsibility to educate us. As a white settler hoping to stand in true solidarity with Hawaiians, I am upset with myself for the mistake. I have seen how frustrating it can be for a movement when valuable time must be spent coaching well-meaning settlers along.
I want to be clear: I am not advocating for a “call-out” culture on the front lines of resistance where resisters perpetually attack each other for their choice of words. Many of us must go through our personal experiences unlearning the lies we are taught and this takes time. The dominant culture, of course, does an excellent job lying. That’s why it’s the dominant culture.
But, I am saying that settlers need to take responsibility for educating other settlers. Leaving education to oppressed classes, forcing them to do the work of spreading consciousness, is a form of oppression in itself.
Before I begin, it is necessary to explain that this essay represents my opinions and my personal perspective of Hawaiian history stemming from the research I’ve done and been directed to. I am not a spokesperson for the Hawaiian people, neither am I spokesperson for the Mauna Kea protectors. I understand that there is no One True History, but I refuse to abide by the relativism I see perpetuating around me.
The complexity of a situation does not signify a lack of meaning. Rather, the complexity of a situation – especially ones with real, physical consequences – demands that we grapple with information to take a stand. As the world disintegrates before our eyes, I see too many people mired in the neutrality their belief in the relative nature of reality produces.
Make no mistake, if the construction of the TMT project results in the spill of hazardous chemicals in the largest freshwater aquifer on the Island of Hawai’i – a very real possibility – there will be very real consequences for life on the Island.
***
Milan Kundera famously stated the “struggle against oppression is the struggle of memory against forgetting.” I have found this to be shockingly true learning the history of Hawai’i. It is my belief that haoles have forgotten – or never knew – the history of Hawai’i. If we did not forget, there would be more of us supporting the Mauna Kea protectors and supporting true Hawaiian sovereignty.
What have we forgotten?
It starts centuries ago when Hawaiians first arrived in Hawai’i. Over the centuries, Hawaiians developed a culture based on ecological balance that included communal land tenure. I am very self-conscious that my attempts to explain a complex culture that existed for centuries before the arrival of Europeans would amount to so much generalization. I cannot possibly do the Hawaiian culture justice in a short essay, but so many discussions of Hawaiian history begin with the arrival of Captain Cook in 1778 erasing Hawaiian history pre-European contact.
There are always those that will accuse me of romanticizing Hawaiian culture, who will say “all human cultures are inherently destructive.” I do not mean to romanticize Hawaiian culture and it simply is not true that all human cultures are inherently destructive. We know the Hawaiian culture before 1778 had it’s own problems, but wide-scale ecological collapse was not one of them. In this era of total environmental destruction, we would do well to empower cultures who lived in balance with their land base.
From 1826 until 1893, the United States government recognized the independent Kingdom of Hawai’i including full, complete diplomatic relations with the Hawaiian government. For all intents and purposes, the United States viewed Hawai’i as a nation just like Mexico, Canada, or Great Britain. In fact, the United States entered into treaties involving navigation and commerce with Hawai’i in 1826, 1842, 1849, 1875, and 1887.
Then, in January, 1893, John L. Stevens, an American agent in Hawaii (his official title was United States Minister), conspired with non-Hawaiians and members of the U.S. Navy to overthrow the Hawaiian government. On January 16, 1893, Stevens and armed US naval personnel invaded Hawai’i and positioned themselves next to Hawaiian governmental buildings including Iolani Palace to intimidate Queen Liliuokalani. Queen Liliuokalani, under threats of bloodshed, yielded her authority to the government of the United States – NOT Stevens’ provisional government – until the time the United States would undo the actions of its representatives in Hawai’i.
Grover Cleveland was the president in 1893 and he initiated an investigation into the actions of Stevens and his cronies while calling for the restoration of the Hawaiian monarchy. The investigation concluded that Stevens and other US officials in Hawaii had abused their authority and had engaged in “an act of war.”
Still, the provisional government sought annexation in Congress, but was unable to rally the support of 2/3 of the Senate needed for annexation. So, on July 4, 1894, the provisional government that had forcibly invaded and overthrown the Kingdom of Hawai’i, declared itself the Republic of Hawai’i.
In 1896, William McKinley replaced Grover Cleveland as president. Using the excuse of the Spanish-American war and the need for a naval base in the Pacific, McKinley and the Senate began to entertain the notion of annexing Hawai’i, again.
In 1897, the Hawaiian people delivered a massive petition where nearly 90% of Hawaiians alive at the time declared their desire not to become part of the United States of America. Unable to secure a treaty of annexation, Congress passed a joint resolution titled “the Newlands Resolution” on July 7, 1898.
The illegality of this joint resolution is one of the most important things to understand about Hawaiian history. This resolution had no legal basis, had no validity, and was possible simply because of the armed might of the United States.
The resolution has no legitimate basis because laws passed by Congress have no authority internationally. Congress can only pass laws that apply within the United States.
Hawaiian legal scholar Dr. Keanu Sai explains it better than I can in his blog-article “International Law Prevents Construction of the Thirty Meter Telescope” when he writes, “The underlying problem that Congressmen at the time knew was that no law of Congress can have any force and effect beyond the borders of the United States. In other words, the United States could no more annex the Hawaiian Islands by passing a domestic law, than it could annex Canada today by passing a law.”
As part of the Newlands Resolution, the Republic of Hawai’i passed 1,800,000 acres of what had been crown, government, and public lands of the Kingdom of Hawai’i to the control of the United States. Included in this land is Mauna Kea. Through the acquisition of Mauna Kea in this way, the State of Hawai’i has leased land on Mauna Kea for the TMT’s construction. But, an illegal state giving land acquired illegally can only give – you guessed it – an illegal lease.
Of course, you don’t have to take my word for this history, because all of these facts were already admitted and apologized for by Congress on November 23, 1993. You can read their apology here.
***
So, can you see why we cannot call the occupation of Hawai’i an annexation? No treaty of annexation was ever signed. “Annexation” implies consent on the part of those annexed and clearly the Hawaiian people never consented.
To take this even deeper, the term “annexation” hides the truth, softens the reality that Hawai’i was invaded while the invaders still seek to assert dominance over Hawai’i. To use the term “annexation” is to forget and forgetting clears the wayfor oppression.
There’s something, though, that bothers me about all this. How can the American government and the American people after learning this history, after admitting the wrongs done to Hawai’i still allow something like the TMT project to happen? I think the answer is that learning the history is only the first small step. Knowing the history, we must act.
One of the intentions behind my writing is to try to understand how so many people can recognize problems in the world and then fail to act to solve those problems. I am a haole, so I can only speak as a haole, and I believe too many haoles settle for pointing out their privilege while the more important work involves undermining the forces that grants them that privilege over others in the first place. The history is clear. Hawaiians are being wronged. Now, we need to act.
U.S. Constitutional Law and Customary International Law for Territorial Annexation
To develop an informed position on current issues in Hawaiʻi, such as the TMT (Thirty Meter Telescope) standoff on Mauna Kea, it is important to have an accurate understanding of the legal status of Hawaiʻi.
The purpose of this article is to address common misconceptions people have regarding territorial annexation as it relates to the Constitution of the United States and customary international law.
www.archives.gov/exhibits/charters/constitution_transcript.html
In Article I, Section 8 of the U.S. Constitution, the enumerated powers of Congress are domestic. Specifically, there is no enumerated power for annexation of foreign territory.
From Article II, Section 2 of the U.S. Constitution, regarding the President and Senate:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”
This power was used by the United States to enter 9 treaties of cession, annexing 56 out of 58 acquired territories, over a period of 168 years (1783-1951). This is the self-evident pattern of customary international law regarding territorial annexation, followed consistently by the United States throughout its history.
The Indian Appropriation Act of 1871 and the Island of Palmas arbitration in 1925 legally prevented this power from being used for annexation of American Sāmoa. There were two failed attempts, in 1893 and 1897, to use this power for annexation of Hawaiʻi, both of which were due to less than two thirds approval of the Senate.
The context of Article IV, Section 3, of the U.S. Constitution, is clearly domestic:
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
This power was used prematurely to admit Texas as a State in 1845 following two failed attempts, in 1837 and 1844, to pass a treaty of annexation for Texas in the U.S. Senate. The preliminary admission of Texas as a State in 1845 was followed by constitutional annexation of Texas as a Territory in 1848 through the Treaty of Guadalupe Hidalgo.
Therefore, since the Newlands Resolution claimed to annex Hawaiʻi as a Territory in 1898, and not admit it as a State, Texas is an invalid precedent. Furthermore, all 49 of the United States, including Texas, have a treaty of cession, while Hawaiʻi does not. This makes Hawaiʻi an unprecedented historical anomaly in violation of customary international law for territorial annexation, that in turn provides the evidence through which the U.S. constitution is interpreted.
88 out of 90 members of the U.S. Senate in 1898 opposed annexation of Hawaiʻi by joint resolution, because they held that it was unconstitutional in the context of customary international law, since Texas failed to provide a valid precedent. (youtu.be/yC4v0k0wd0Y)
The historical data for customary international law regarding territorial annexation, followed by the USA throughout its history, does not substantiate constitutional annexation of Hawaiʻi to the United States via joint resolution of U.S. Congress in 1898. This alleged annexation is an outlier in the data set—9 treaties annexing 56 territories in 168 years, plus the cession by American Sāmoa—that stands alone without precedent, both before and after the Newlands Resolution.
The provision in the U.S. Constitution for territorial annexation by a supermajority of the U.S. Senate is unequivocal when interpreted through this complete data set for customary international law. This is the appropriate context which must be included in any assessment of the claim of that Hawaiian sovereignty has been transferred to the United States.
Today, the typical American is oblivious to this complete data set regarding annexation of territory by the United States. However, this is not because access is restricted to these data, but due to generations of being indoctrinated by propaganda to the contrary. Therefore, instead of investigating the data, and interpeting it objectively, the typical American accepts the assumption that Hawaiʻi is the “50th State” as a foregone conclusion.
Hence, as will undoubtedly be demonstrated in comments on social media reacting to this article, Americans (and Americans-at-heart) will insist that Texas was annexed by joint resolution and not the Treaty of Guadalupe Hidalgo, since this underpins their belief that Hawaiʻi was annexed by joint resolution.
This unchallenged chain of assumptions, in turn, is a major factor underlying the belief that the TMT project has been legally approved for construction under American laws. However, by a score of 57 to 1, the data provided by customary international law fails to support the alternative hypothesis that the Hawaiian territory was annexed to the United States. In turn, these data invalidate the administration of U.S. laws in the Hawaiian territory.
Conversely, the data fails to reject the null hypothesis that the Hawaiian State has not been extinguished from its territory. Therefore, it cannot be concluded from customary international law that Hawaiʻi is part of the United States. Since occupation exists in the absence of annexation, and since both are mutually exclusive, the USA is in Hawaiʻi and not the other way around. In other words, Hawaiʻi is not part of the United States—nor has it ever been—without a treaty of cession.
Consequently, construction of the TMT would be classified as a war crime under international law through “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,” which is one of the grave breaches specified in the 1949 Geneva Conventions.
Data Set & References: goo.gl/d6Ra2B
Author Bio
Keokani Marciel is a lifelong aloha ʻāina (Hawaiian patriot) and kanaka ʻōiwi (aboriginal Hawaiian) who holds a B.S. in Nutrition Science from the University of California at Davis, and an M.S. in Exercise Science from California University of Pennsylvania. In 2008, Keokani made a career change to mathematics education, and is now beginning an actuarial career. With his background, he brings a quantitative and scientific outlook to the discourse regarding the legal status of Hawaiʻi as an occupied nation-state.
Hawai‘i Law Professor Provides Clarity of Dispute on Mauna Kea to UH Board of Regents
Testimony of Williamson B.C. Chang, Professor of Law, April 16, 2015 at a meeting of the University of Hawai‘i Board of Regents, University of Hawai‘i at Hilo.
Honorable Board of Regents:
I have had the honor and pleasure to serve as a Professor of Law at the University of Hawai’i for the last 39 years. I have served the University and the community well. I am also grateful for the opportunity to serve and work in the University.
Let me start by saying this: I know a place, I know a country where there would never be a question whether to build an eighteen-story thirty meter telescope on the summit of Mauna Kea. That country, that nation is “Hawai’i.”
Before 1893, it would have been unthinkable that the Government of the Kingdom of Hawai’i would ever conceive of such a plan. Yes, Kalakaua loved astronomy. All Hawaiians loved the stars. However, they loved Mauna Kea even more. Mauna Kea is “sacred” it is the Sky-Father it is the essence, the beginning of the creation chant of the Hawaiian people. All Hawaiians, all Islands, even Taro are descendants of Mauna Kea.
When I say “Mauna Kea” is sacred, I do not mean to use “sacred” the way most people use that term. I mean “sacred” not in the same sense of worship. I use “sacred” in the sense of “precious” and “so important that nothing else counts”—I apply it to those things and people that we care so much about that we would do anything, even flout and break the law, to preserve their existence.
The child of a parent, especially a young child is “sacred” in this sense. So are parents to their children. So are grandparents. Even the family pet is “sacred.” If your house was burning down would you risk your life to go into the burning house to rescue your children, your mother, your grandparents, even your beloved dog or cat? Would you go even if forbidden by first responders, firemen or policemen? Yes, many of us would go without hesitation–without thinking of the consequences. Would you give a kidney to save or extend the life of your child, your brother, your uncle? Would you spend all of your money to save a loved one from cancer? from Lou Gehrig’s disease or from a life in prison without parole? Yes, we all would.
Moreover, we praise such emotions and desires of others who make such sacrifices every day. We understand the soldier who sacrifices himself by instinctively jumping on a grenade. We understand the parent or grandparent who gives all their money to see their child or grandchild through college.
Whether one worships Mauna Kea or not, whether one considers it “sacred” does not matter as much as understanding the instincts that drive those to defend and save Mauna Kea—much as one would understand the absolute love for a child, or a parent even if such acts break the law.
When we see the instinct of family, of brotherhood, of sisterhood of love for mankind in others we celebrate that—we gravitate to that. We love and defend Mauna Kea because it reminds us what makes us human. Sacred is not necessarily a place. It is a relationship, a deep visceral relationship: beyond reason, beyond law, beyond rationality.
The Mauna Kea movement is a movement that has grown because of young people. They live in new confusing world themselves—a world of cognitive dissonance. That is they live within an outright contraction—a Hawaii in decline where there is nothing they can do. They see their world being attacked and destroyed, its water taken, its plants doused with foreign chemicals, its agricultural lands disappear in the name of gentlemen farmers, its open lands used for artillery practice, and its shoreline becoming high-end condominiums that only rich foreigners can afford.
Moreover, to the young, Hawaii is unlivable, there is no viable future: There are no places to rent, no jobs that fit their training, no money for retirement and the endless, life-sapping traffic congestion. And now an eighteen story telescope on Mauna Kea!
It would never be built on other sacred sites: not over the Western Wall, the Dome of the Rock, Angor Wat, Gettysburg, Arlington, or the Arizona Memorial? No one would think of putting a pair of glasses on the eyes of God. Why then, Mauna Kea? We, and our youth are inundated today with the attacks on the treasures of the earth and why?
So, what happened to this “nation” called Hawai‘i, where Mauna Kea was loved and adored? Hawai‘i was a nation, that by a series of events, starting with an overthrow in 1893 and ending with annexation in 1900, by which another nation, the United States, forcefully took the sovereignty of Hawai‘i.
What do I mean by that?—to take one nation’s sovereignty? Sovereignty is the monopoly of a government on the legitimate use of violence.
By that I mean the State, the police and DLNR are the only ones today who can do so-called “legal” violence to Mauna Kea. Similarly, the police of Hawai‘i County and the officers DLNR are the only ones who can use the violence of arrest and jail or fine to force down the protectors of Mauna Kea. Protect the mountain and you go to jail. It is legal. It is called law. It is a power possessed only by the sovereign of a nation. There once was a time in Hawaii when that monopoly on the use of legal power protected not defiled Mauna Kea.
In 1893 and 1900 a new Nation took over in Hawai‘i—a new nation with new rules. These were new rules that had the power to interfere with our very human, emotions and instincts, instincts derived over time from our kupuna, our ancestors and the culture of this nation of Hawai‘i. Hawai‘i has changed.
Today, government has the legitimate power to do violence to families as well. Government agencies can take a child away from a parent. Government agencies can put a Hawaiian in prison for the smallest of offenses—denying him or her freedom and the chance to be with and raise their families. The world of Hawai‘i has been turned upside down.
The answer lies in power, that is law—the shift over their lives by which all is reversed.
In 1898 the United States, by Joint Resolution took the nation of Hawai‘i. I am a legal historian. In the appendix attached I show my work—that concludes definitively that the joint resolution had no such power. It was impotent, it was an act of Congress not a treaty. It could no more take Hawai‘i by a law then Hawai‘i by a law could take America.
It was a fraud—it created a disease that spread, a malaise we all suffer—called the myth of annexation. We all believe we are part of America, we all act as if that were true. We have been taught that way. We follow the lead of others who act that way.
The truth is that the joint resolution did not give to the United States the monopoly on the use of legitimate violence—a violence to build on Mauna Kea, the violence to arrest those who seek to stop that building. Most of all the University claims Mauna Kea by lease—a lease derived from the Joint Resolution.
It is said that the Joint Resolution gave Mauna Kea to the United States, which gave it to the State, which gave it to the University. As a matter of law that is false. It is a lie. The University has no power over Mauna Kea. It cannot build, it cannot give permits, it cannot arrest us.
The mass of young people are here today in protest because we live in a world of cognitive dissonance. They live in a world where they are learning, at the University about the truth of the Joint Resolution, which gives no power, no sovereignty to the state. Outside of their classes they see the State taking what they love—preventing them from running into the burning house to save their Mauna Kea, their father, their sky-father.
And this dissonance makes them ill. It makes our youth sick. It is a crisis that creates mental illness. In short, to build on Mauna Kea is to cast a sickness throughout these islands, a sickness and sadness, not only on Native Hawaiians but on all people who live here.
I have included an appendix, taken from my work, which speaks to the myth of annexation and demonstrates that the Joint Resolution had no capacity to take the Nation of Hawai‘i. I will place this testimony and my appendix on my “Scholar Space” at Hamilton Library, the University of Hawai‘i at Manoa, under my name. This is the link to that site.
Mahalo and Mahalo Ke Akua.
Williamson Chang
Professor of Law
View NOHO HEWA on Vimeo…the truth about Hawai‘i
