CLARIFICATION: There is no Showdown between the U.S. Congress and Major General Hara’s Duty to Transform the State of Hawai‘i into a Military Government

The purpose of this blog of the Council of Regency is to provide accurate information to inform the people of Hawai‘i about the prolonged occupation of the Hawaiian Kingdom and the steps the Council of Regency are taking to eventually bring the American occupation to an end. Misinformation will not be tolerated, especially on matters that have severe consequences for the population that resides within the occupied State of the Hawaiian Kingdom.

It has been asserted, as a comment on the recent blog article “It’s About Law—Native Hawaiian Rights are at a Critical Point for the State of Hawai‘i to Comply with the Law of Occupation,” that there is now a showdown between U.S. Army Major General Kenneth Hara’s duty to transform the State of Hawai‘i into a Military Government and the plenary power of the U.S. Congress. There exists no such thing.

The Congress is the legislative branch of the Government of the United States whose authority includes the enactment of laws and providing oversight of the executive branch. The term plenary power refers to the complete or absolute authority, which is frequently used to describe the commerce power of the Congress. Complete or absolute authority means that only the Congress has this power of enacting commercial laws.

Of the three branches of the U.S. Government—the legislative, the executive, and the judicial, only the executive branch can exercise its authority outside of U.S. territory through the Department of State and the Department of Defense. In United States v. Curtiss-Wright Corporation (1936), U.S. Supreme Court explained:

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. 

On the subject of the limits of the Congress to enact laws, whether commercial laws or not, the U.S. Supreme Court, in the Curtiss-Wright case, also stated:

Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens (see American Banana Co. v. United Fruit Co., 213 U. S. 347213 U. S. 356), and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.

Because the Hawaiian Kingdom is foreign territory and cannot exist within the territory of the United States, Major General Hara’s duty to transform the State of Hawai‘i into a Military Government stem from him being a part of the executive branch, the U.S. Department of Defense. The presence of the United States can only be allowed under the strict guidelines and rules of the 1907 Hague Regulations and the 1949 Fourth Geneva Convention, and not the plenary power of the Congress. The transformation into a military government will bring the United States into compliance with “treaties, international understandings and compacts, and the principles of international law.”

It’s About Law—Native Hawaiian Rights are at a Critical Point for the State of Hawai‘i to Comply with the Law of Occupation

On April 26, 2024, the Minister of the Interior published a memorandum addressing the effects of an illegal occupation by the United States since January 17, 1893, the restoration of the Hawaiian Kingdom Government on February 28, 1997, the Permanent Court of Arbitration’s recognition of the continuity of the Hawaiian Kingdom and the Council of Regency as its government on November 8, 1999, exposure of the continuity of Hawaiian Kingdom Statehood since 2001, transforming the State of Hawai‘i into a Military Government, and the continuity of rights of Hawaiian subjects under Hawaiian Kingdom laws to land, healthcare, and fishing.

The Minister of the Interior’s purpose was to have the memorandum disseminated amongst the national population of the Hawaiian Kingdom so that they know certain rights they have under Hawaiian Kingdom law and to know the circumstances by which these rights can be exercised for their benefit. The exercising of these rights to land, healthcare, and fishing, would greatly enhance their lives and their families in Hawai‘i. Under the law of occupation, it is the responsibility of a Military Government that would ensure these rights can be exercised.

Dr. Keanu Sai’s presentation to the Maui County Council on March 6, 2024, on the plan to have the State of Hawai‘i transform into a Military Government so that it can begin to comply with the law of occupation.

Now at 131 years of an illegal and prolonged occupation, the Hawaiian Kingdom is finally at the stage of actionable compliance with the law of occupation by the State of Hawai‘i, on behalf of the United States, setting the course to bring the American occupation to an end. This process begins when Army Major General Kenneth Hara, Director of the State of Hawai‘i Department of Defense, proclaims that the State of Hawai‘i has been transformed into a Military Government so that it will begin to administer the laws of the Hawaiian Kingdom that existed prior to the occupation on January 17, 1893, and the provisional laws proclaimed by the Council of Regency in 2014, so that these nineteenth century laws can be brought up to date. The proclamation stated:

And, We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.

On August 1, 2023, the Minister of the Interior published a memorandum that provides the formula for determining which laws of the United States, State of Hawai‘i, and Counties, presently being imposed in the territory of the Hawaiian Kingdom, shall be considered the provisional laws.

Why is this important for Native Hawaiians who comprise the majority of the national population of the Hawaiian Kingdom called Hawaiian subjects? Because the greatest dilemma facing Native Hawaiians today is not having a home and not having adequate health care. According to the Office of Hawaiian Affairs’ Native Hawaiian Health Fact Sheet 2017, “Today, Native Hawaiians are perhaps the single racial group with the highest health risk in the State of Hawai‘i. This risk stems from high economic and cultural stress, lifestyle and risk behaviors, and late or lack of access to health care.”

The cost of living under American control has placed Hawai‘i as the most expensive place in the United States to live. According to the Missouri Economic Research and Information Center in 2023, Hawai‘i has the highest cost of living in the United States with an index of 180.3. The national average index was at 100. The cost of living is calculated by combining the cost for groceries, housing, utilities, transportation, and health care. This reality forced Native Hawaiians to move to America, where they outnumber the population of Native Hawaiians in Hawai‘i. The U.S. Census report indicated that in 2020, there were a total of 680,442 Native Hawaiians, with 47 percent residing in Hawai‘i, and 53 percent residing in the United States.

The average cost of a home in Hawai‘i is $820,000.00, and health care insurance for a family of 4 is approximately at $1,500 a month. Under Hawaiian Kingdom laws, Native Hawaiians, who are called aboriginal Hawaiian subjects under Hawaiian law, are the recipients of free health care at Queen’s Hospital and at its outlets across the islands today. Aboriginal Hawaiian subjects are also able to acquire up to 50 acres of public lands at $20.00 per acre under the 1850 Kuleana Act, which has not been repealed. With the current rate of construction costs, which includes building material and labor, an aboriginal Hawaiian subject can build a 3 bedroom 1 bath home for $100,000.00, which is far less than the average cost of a home today.

Hawaiian Kingdom laws also provide for fishing rights that extend out to the first reef or where there is no reef, out to 1 mile, exclusively for all Hawaiian subjects and lawfully resident aliens of the land divisions called ahupua‘a or ‘ili, such as the ahupua‘a of Waimanalo and the ‘ili of Kuli‘ou‘ou. This is an important Hawaiian law because, since the American presence, anyone can access and deplete these resources from the exclusive rights of the residents of the ahupua‘a or ‘ili.

From the first reef or from the one nautical mile marker point out to twelve nautical miles, all Hawaiian subjects and lawfully resident aliens have exclusive access to economic activity, such as access to underwater resources and fishing. Once the United Nations Convention on the Law of the Sea is acceded to by the Council of Regency, this exclusive access to economic activity will extend out to 200 miles called the Exclusive Economic Zone.

The 2024-2025 State of Hawai‘i $19.2 billion budget, gives MG Hara the resources to transform the State of Hawai‘i into a Military Government by reallocating monies in line with returning to the status quo ante of the Hawaiian Kingdom and its institutions as they were prior to the American occupation. In particular, MG Hara can immediately allocate monies to the Queen’s Hospital so that Native Hawaiians have access to free healthcare that has been secured under Hawaiian Kingdom law.

Since the restoration of the Government of the Hawaiian Kingdom in 1997, the Council of Regency has been on a track of compelling the United States and the State of Hawai‘i to comply with the international law of occupation. Its three-phase strategic plan was framed in order to achieve this objective.

Phase I—verification of the Hawaiian Kingdom as an independent State and a subject of international law. Phase II—exposure of Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels. Phase III—restoration of the Hawaiian Kingdom as an independent State and a subject of international law. Phase III occurs when the American occupation comes to an end by a treaty of peace.

Critical to this strategy was to have a reputable international body recognize the continued existence of the Hawaiian Kingdom as a State under international law, which is phase 1. Phase 1 was not seeking international recognition of the Hawaiian Kingdom as a new State because recognition was already afforded in the nineteenth century. Rather, phase 1 was seeking the recognition of the Hawaiian Kingdom’s “continuity” as a State and its laws. The Regency knew that international law clearly provided for the Hawaiian Kingdom’s continued existence despite the illegal overthrow of its Government by the United States on January 17, 1893. What was needed, however, was to have an international body conclude, by an application of relevant international laws, that the Hawaiian State indeed “continues” to exist. Phase 1 would be a very complex legal situation to play out.

Because the State under international law is a legal entity, it needs a government to speak on its behalf no different than how a business corporation is a legal entity that needs a CEO and a Board of Directors to speak on its behalf. Without a physical body, the legal entity is silent but still legally exists. So, to get this matter before an international body, the Hawaiian Government had to first be in place in order to speak for the Hawaiian State. Another aspect to this, would be the legal competency for the Regency to be the lawful Government representing the Hawaiian State. This raises two issues, first the legal competency for the Regency to be established in accordance with Hawaiian Kingdom laws, and, second, whether the Regency needed diplomatic recognition to be the Government of the Hawaiian Kingdom.

Under international law, once recognition of the Hawaiian Kingdom as a sovereign and independent State was achieved in the nineteenth century, it was also the recognition of its government being a constitutional monarchy. Any successor Head of State since the original recognition of King Kamehameha III, as the Head of State, would not require diplomatic recognition so long as the successor became the Head of State in accordance with the laws of the Hawaiian Kingdom.

The legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather under the constitution and laws of the Hawaiian Kingdom. According to Restatement (Third) of Foreign Relations Law of the United States, “Where a new administration succeeds to power in accordance with a state’s constitutional processes, no issue of recognition or acceptance arises; continued recognition is assumed.”

Under Hawaiian law, the Council of Regency serves in the absence of the Executive Monarch. While the last Executive Monarch was Queen Lili‘uokalani, who died on November 11, 1917, the office of the Executive Monarch remained vacant under Hawaiian constitutional law. There was no legal requirement for the Council of Regency, being the successor in office to Queen Lili‘uokalani under Hawaiian constitutional law, to obtain recognition from the United States to be the government of the Hawaiian Kingdom.

The United States’ recognition of the Hawaiian Kingdom, as an independent State on July 6, 1844, was also a recognition of its government—a constitutional monarchy. Successors in office to King Kamehameha III, who at the time of international recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, Queen Lili‘uokalani in 1891, and the Council of Regency in 1997.

If the successor arose out of a revolution, which comes about through “extra-legal changes in government,” it would need diplomatic recognition as the de facto government that replaced the previous form of government. This is why the insurgency, calling itself the provisional government, needed diplomatic recognition as a de facto government by resident U.S. Minister John Stevens on January 17, 1893, to have any semblance of legality under international law. President Grover Cleveland, after investigating the overthrow, told the Congress, by message, on December 18, 1893:

When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had…declared it to exist. It was neither a government de facto [in fact] nor de jure [in law]. That it was not in such possession of the Government property and agencies as entitled it to recognition.

President Cleveland also undermined the status of the provisional government when he told the Congress, “the Government of the Queen…was undisputed and both the de facto and the de jure government.” In other words, they were not a successful revolution, and that the lawful government was the Hawaiian Kingdom as a constitutional monarchy. Instead, they were an insurgency and a puppet creation by the United States. On this note, the President told the Congress that the “provisional government owes its existence to an armed invasion by the United States.”

With the government in place since 1997, the legal complexities to achieve phase I were set and it played out at the Permanent Court of Arbitration (“PCA”) in The Hague, Netherlands. The PCA was established in 1899 by the United States and twenty-five other countries as an intergovernmental organization that provides a variety of dispute resolution services to the international community. In 1907, the 1899 Convention for the Pacific Settlement of International Disputes was superseded by the 1907 Convention for the Pacific Settlement of International Disputes. Presently, there are currently 122 countries that became contracting States to either the 1899 or the 1907 Conventions, which includes the United States.

On November 8, 1999, a dispute between Lance Paul Larsen, a Hawaiian subject, and the Hawaiian Kingdom was submitted to the PCA for settlement, which came to be known as Larsen v. Hawaiian Kingdom. Larsen was alleging that the government of the Hawaiian Kingdom, by its Council of Regency, should be liable for allowing the unlawful imposition of American laws. He alleged that these laws denied him a fair trial, which led to his incarceration.

Before the PCA could establish an arbitration tribunal to resolve the dispute, it had to verify that the Hawaiian Kingdom “continues” to exist as a State under international law and that its government is the Council of Regency. It did, and on June 9, 2000, the PCA established the arbitration tribunal comprised of three arbitrators. With phase 1 completed, phase 2 was initiated, which began the exposure of Hawaiian Statehood during oral hearings at the PCA on December, 7, 8, and 11, 2000.

Phase 2 was continued at the University of Hawai‘i at Mānoa, where for the past twenty-four years research, publications, and classroom instructions have begun to normalize the circumstance of the American occupation and the role of how the law of occupation will bring the American occupation to a close. This exposure phase will trigger compliance to the law of occupation by the State of Hawai‘i, but not the United States federal government.

The law of occupation obligates the entity of the occupying State, who is in effective control of a majority of the territory of the occupying State, to establish a military government to begin to administer the laws of the occupied State. When the United States occupied Japan from 1945 to 1952, General Douglas MacArthur served as the Military Governor overseeing the Japanese civilian government. The function of a military government is to provisionally administer the laws of the occupied State until there is a treaty of peace where the occupation will come to an end. When the 1951 San Francisco Peace Treaty with Japan came into force on April 28, 1952, the United States occupation of Japan came to an end.

In 1893, the United States did not establish a military government and it allowed their puppet governments, called the provisional government who later changed its name to the Republic of Hawai‘i on July 4, 1894, to impose its will on the population. After illegally annexing the Hawaiian Islands on July 7, 1898, the United States unlawfully imposed its own laws over the territory of the Hawaiian Kingdom through its puppets the Territory of Hawai‘i from 1900 to 1959, and the State of Hawai‘i from 1959 to the present. Under international law, all acts done by the United States are void and invalid because the United States does not have sovereignty over the Hawaiian Islands.

President Cleveland also stated to the Congress that the overthrow of the Government of the Hawaiian Kingdom was directly tied to an incident of war. He stated that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.” The overthrow of the Government of the Hawaiian Kingdom did not affect the sovereignty and legal order of the Hawaiian Kingdom as a State. U.S. Army Field Manual 27-10 regulates the actions taken by U.S. troops during the military occupation of a foreign State. Paragraph 358 states:

Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.

Only the Hawaiian Kingdom has sovereignty over the Hawaiian Islands and not the United States. International law does not allow two sovereignties to exist within one and the same State. In the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice explained:

Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention (treaty).

The permissive rule under international law that allows one State to exercise authority over the territory of another State is Article 43 of the 1907 Hague Regulations and Article 64 of the 1949 Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom. Instead, it imposed its will over the population of the Hawaiian Kingdom by unlawfully imposing its laws, which was at the center of the Larsen case. The PCA described the Larsen v. Hawaiian Kingdom arbitration case on its website as:

Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.

To bring compliance with the law of occupation and to allow the presence of the United States, by virtue of the permissive rule embodied in the 1907 Hague Regulations and the 1949 Geneva Convention, the State of Hawai‘i must be transformed into a Military Government. The determining factor as to what entity of the United States has the duty to become a Military Government is the “effectiveness” test. Article 42 of the 1907 Hague Regulations clearly states, “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” In other words, an entity cannot enforce the laws of the occupied State without being in effective control of the territory of the occupied State.

In this situation, it is the State of Hawai‘i and not the federal government that is in effective control of  the majority of Hawaiian Kingdom territory, where the latter is only in effective control of less then 500 square miles while the former is in effective control of 10,931 square miles.

The officer of the State of Hawai‘i that has the duty to transform the State of Hawai‘i into a Military Government is the Director of the State of Hawai‘i Department of Defense U.S. Army Major General Kenneth Hara. Governor Josh Green is a civilian, and he has no direct link to the United States Department of Defense whose Directive no. 5100.01 explicitly states that one of the functions of the Army in “[occupied] territories abroad [is to] provide for the establishment of a military government pending transfer of this responsibility to other authority.”

Like General MacArthur, MG Hara would serve as the Military Governor. His actions, though, are constrained by international law and the law of occupation. International law also provides for the sharing of authority between the Military Governor and the Council of Regency. MG Hara does not have absolute authority. On this topic of shared authority, Professor Federico Lenzerini, in his legal opinion, explains:

Despite the fact that the occupation inherently configures as a situation unilaterally imposed by the occupying power—any kind of consent of the ousted government being totally absent—there still is some space for “cooperation” between the occupying and the occupied government—in the specific case of Hawai’i between the State of Hawai‘i and its Counties and the Council of Regency. Before trying to specify the characteristics of such a cooperation, it is however important to reiterate that, under international humanitarian law, the last word concerning any acts relating to the administration of the occupied territory is with the occupying power. In other words, “occupation law would allow for a vertical, but not a horizontal, sharing of authority […] [in the sense that] this power sharing should not affect the ultimate authority of the occupier over the occupied territory”. This vertical sharing of authority would reflect “the hierarchical relationship between the occupying power and the local authorities, the former maintaining a form of control over the latter through a top-down approach in the allocation of responsibilities”.

The Council of Regency has provided MG Hara an Operational Plan, with essential and implied tasks, to transform the State of Hawai‘i into a Military Government.

While the State of Hawai‘i has yet to transform itself into a Military Government and proclaim the provisional laws proclaimed by the Council of Regency, Hawaiian Kingdom laws as they were prior to January 17, 1893, continue to exist. Because of phase 2 there is a growing awareness among Native Hawaiians on not only the circumstances of the American occupation but also the denial of their rights secured under Hawaiian Kingdom law, which the American presence took away from them and their families.

MG Hara’s delay in proclaiming the establishment of the Military Government of Hawai‘i has now a direct impact on the rights of Native Hawaiian families and their ability to exercise and benefit from these rights under Hawaiian Kingdom law. According to international law, the enforcement of the law of occupation is with MG Hara, but the pressure placed upon MG Hara to enforce Hawaiian Kingdom laws are with Native Hawaiians whose rights are being denied by his inaction. In other words, MG Hara’s reluctance to carry out his duty can now be directly tied to Native Hawaiians lack of a home and adequate healthcare.

The Importance of Education and Getting the Facts Straight

As the country is moving ever so close to compliance with the law of occupation by the State of Hawai‘i, misinformation and disinformation must be addressed. It is understandable for the population of an occupied State not to fully grasp the situation of the Hawaiian Kingdom that it not only still exists as a country under international law but that it has been under a prolonged occupation for 131 years.

The reason why this occupation has lasted so long is because of denationalization through Americanization that formally began as a policy in 1906. Within three generations, the national consciousness of the Hawaiian Kingdom in the minds of its national population was erased. Replacing Hawaiian national consciousness with American national consciousness, together with its political ideologies and beliefs.

The recovery of Hawaiian national consciousness relies on accurate information through education. Just as education in the public and private schools, in the early twentieth century, was weaponized to erase Hawaiian national consciousness in the minds of school children, education today must be utilized, not weaponized, to restore it. It is a process, and, sometimes, an unpleasant process. This process of restoring Hawaiian national consciousness reveals the untruths and deceptions that were used to conceal an international travesty.

Many Hawaiian subjects served in the American military, whether voluntarily or by conscription, and it is naturally difficult to come to terms with this information. This difficulty to come to terms also applies to the entire population of Hawai‘i who were taught in school and were led to believe that Hawai‘i is a part of the United States and that they are American citizens.

The clashing of two sets of beliefs is called cognitive dissonance, which “is a psychological phenomenon that occurs when a person holds two contradictory beliefs at the same time.” The two beliefs that collide is Hawai‘i the 50th State of the American Union and the Hawaiian Kingdom as an occupied State since 1893. Both beliefs are mutually exclusive, which means that both cannot exist at the same time. The continued existence of the Hawaiian Kingdom as an occupied State cancels the existence of the State of Hawai‘i and the federal government. As the Permanent Court of International Justice, in the S.S. Lotus case, stated in its 1927 judgment:

Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention (treaty).

Since 1893, the United States has been exercising its authority over Hawaiian Kingdom territory without any ‘permissive rule derived from international custom or from a convention (treaty).’ If the United States, to include the State of Hawai‘i, has no lawful authority to exercise its power in Hawaiian territory, then everything that derives from its unlawful authority is invalid in the eyes of international law. This comes from the rule of international law ex injuria jus non oritur, which is Latin for “law (or right) does not arise from injustice.”

From this international rule—ex injuria jus non oritur, when applied to an occupied State, springs forth another rule of international law called postliminium, where all unlawful acts that an Occupying State may have been done in occupied territory are invalid and cannot be enforced when the occupation comes to an end. According to Professor Oppenheim, “If the occupant has performed acts which are not legitimate acts [allowable under the law of occupation], postliminium makes their invalidity apparent.”

Cognitive dissonance occurs when a person cannot let go of their former beliefs and tries to incorporate these beliefs into the new belief. This approach reveals contradictions, which is analogous to asserting baseball rules into a football game. It is either a football game or a baseball game. The football game is the American occupation of the Hawaiian Kingdom. The baseball game is Hawai‘i being the 50th State of the American Union. International laws are the rules of the football game, and American laws are the rules of the baseball game.

Within the United States, there is a Sovereign citizen movement that believe “the Uniform Commercial Code, which provides an interstate standard for such things as property ownership or bank accounts (and documents that they believe apply only to their strawman, such as drivers’ licenses, is a codification of the illegitimate commercial law ruling the United States.” Many groups of the Hawaiian sovereignty movement subscribe to this belief that sees the State of Hawai‘i as a corporation with no authority over free and sovereign citizens. Whether you agree or disagree with the Sovereign citizen movement, it has no place in the Hawaiian Kingdom being an occupied State that has suffered the devastating effects of the war crime of denationalization. To claim to be a sovereign citizen in a country that is a constitutional monarchy is a contradiction. You cannot have a monarchical system of governance when some of its people claim to be sovereign themselves.

The Uniform Commercial Code (UCC) was first published in 1952 as a joint project of the Uniform Law Commission, which is also called the National Conference of Commissioners on Uniform State Laws, and the American Law Institute. Its goal was to harmonize State law because commercial transactions extend beyond one State’s jurisdiction within the United States. Another goal of the UCC was to modernize contract law.

Having come from two private organizations, the UCC is not American law until the States and Territories of the United States adopt it. Forty-nine States, which includes the State Hawai‘i, as well as the District of Columbia, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands have adopted the UCC as their law with minimal changes. According to the website of the Uniform Law Commission, the “Uniform Commercial Code…is a comprehensive set of laws governing all commercial transactions in the United States. It is not a federal law, but a uniformly adopted state law.” As such, the UCC is an American law limited within the territorial jurisdictions of the forty-eight States of the American Union and three of its territories that adopted it.

The political economy of the United States and its UCC is not the political economy of the Hawaiian Kingdom prior to the American invasion in 1893. Political economy is the economic system and its governance by the political system of a State. The Hawaiian Kingdom was a progressive country when compared to the European States and their successor States on the American continent in the nineteenth century. Its political economy was not based on Adam Smith’s capitalism—Wealth of Nations, but rather Francis Wayland’s approach of a cooperative capitalism. According to Professor Mykkanen, Wayland was interested in “defining the limits of government by developing a theory of contractual enactment of political society, which would be morally and logically binding and acceptable to all its members.”

Wayland’s book, Elements of Political Economy, was the fundamental basis when written in the Hawaiian language and adjusted to apply to Hawaiian society accordingly by William Richards. The book was titled No Ke Kālai‘āina (English translation), which theorized governance from a foundation of Natural Rights within a Hawaiian agrarian society based upon capitalism that was not only cooperative in nature, but also morally grounded in Christian values. Contemporary historians and academics mistakenly assumed that American capitalism was the political economy of the Hawaiian Kingdom. Along with the unlawful imposition of American municipal laws after 1898, was the unlawful imposition of the American version of capitalism. Karl Marx, the renowned critical theorist, would have found the Hawaiian Kingdom’s political economy very appealing.

The Hawaiian Kingdom was the only country to adopt Wayland’s theory of economics. The United States and the United Kingdom based their economies on Smith’s theory of capitalism. Wayland’s form of capitalism was taught in the schools throughout the islands and framed political and economic discourse in the country. It also set in motion Hawai‘i’s mixed economy and the seed was planted for the Hawaiian Kingdom to become the first welfare State that would predate the Nordic countries by a century.

The welfare State is a “concept of government in which the state or a well-established network of social institutions plays a key role in the protection and promotion of the economic and social well-being of [its] citizens.” German Chancellor Otto von Bismark is credited with establishing the idea of a welfare State, and the Hawaiian Legislative Assembly would cite him regarding economic legislation and reform for the Kingdom. He was referred to as “Bisimaka,” which is Hawaiian for “Bismark.”

During military occupations of occupied States, the occupying State is only allowed limited authority to exercise its power by virtue the permissive rule under Article 43 of the 1907 Hague Regulations. Article 43 provides that once the occupying State has effective control of the territory of an occupied State, it is obligated to establish a military government in order to administer the laws of the occupied State. In other words, the United States should have established a military government on January 17, 1893, to administer temporarily administer Hawaiian Kingdom law after Queen Lili‘uokalani conditionally surrendered, and up until there is a treaty of peace between the United States and the Hawaiian Kingdom.

According to Professor Benvenisti, the “public order and civil life are maintained through laws, regulations, court decisions, administrative guidelines, and even customs, all of which form an intricate and balanced system.” This description reflects the legal order of a State, where sovereignty is the authority exercised by the government of the State in maintaining the ‘public order and civil live.’

For the Hawaiian Kingdom, the legal order is framed by the 1864 Constitution, as amended, which provides for the ‘laws, regulations, court decisions, administrative guidelines, and even customs’ to exist. The legal order of the occupied State includes the Hawaiian Kingdom’s political economy. The Hawaiian Kingdom’s legal order is explained in Chapter 1—Hawaiian Constitutional Governance (p. 59-94) in the ebook Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. U.S. Army Field Manual 27-10. Section 358 titled Occupation Does Not Transfer Sovereignty states:

Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent to annex occupied territory or to create a new State therein while [the occupation is] still in progress.

Since January 17, 1893, the United States was unlawfully exercising its power over the Hawaiian Islands and the population by maintaining its puppet governments calling themselves the provisional government and then the so-called Republic of Hawai‘i, and its unlawful imposition of American laws when it unlawfully annexed the Hawaiian Islands in 1898, and then unlawfully created the American State of Hawai‘i in 1959. The very existence of the Hawaiian Kingdom as an occupied State cancels any and all American authority in the territory of the Hawaiian Kingdom unless that authority is in line with the 1907 Hague Regulations and 1949 Fourth Geneva Convention, which it is currently not.

Considering the severity of the situation, the Council of Regency’s approach toward compliance by the State of Hawai‘i is laser focused on the duties and responsibilities of State of Hawai‘i Major General Kenneth Hara to transform the State of Hawai‘i into a Military Government. The Council of Regency did not choose MG Hara to perform this duty, but rather the rules of international law did because he is the highest ranking general officer in the State of Hawai‘i Department of Defense.

The Hawaiian Kingdom is at the cusp of a radical change in governance that is in line with international law. A change that must bring 131 years of violating international law in line with Hawaiian Kingdom law. As education was once weaponized for illicit purposes, it is crucial at this time to facilitate compliance with the law through accurate information and responsible education.

Accessing Two Books on the Political and Legal History of the Hawaiian Islands

In 2011, Dr. Keanu Sai wrote a book titled Ua Mau Ke Ea – Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands. Pū‘ā Foundation is the publisher of this book that can be purchased online at their website. This book draws from Dr. Sai’s doctoral dissertation in political science titled The American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State. Ua Mau is currently being used to teach Hawaiian history in the Middle Schools, High Schools, and entry level collage classes.

In 2020, Dr. Sai is an editor and author of a free eBook titled Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. Contributing authors include Professor Matthew Craven from the University of London, SOAS, Law Department, on the subject of the Hawaiian Kingdom’s continued existence as a State under international law; Professor William Schabas from Middlesex University London, Law Department, on the subject of war crimes being committed in the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, on the subject of human rights violations committed in the Hawaiian Kingdom and the right of self-determination of a population under military occupation. In 2022, a book review of the Royal Commission of Inquiry’s eBook was done by Dr. Anita Budziszewska from the University of Warsaw, which was published in the Polish Journal of Political Science. This book is currently being used in undergraduate and graduate courses at universities.

To access Dr. Sai’s other publications you can visit his University of Hawai‘i website. Dr. Sai firmly believes in the power of education. He often states, “The practical value of history, is that it is a film of the past, run through the projector of today, on to the screen of tomorrow.” It is through education and awareness that the national consciousness of the Hawaiian Kingdom will be restored to its rightful place.

Dr. Keanu Sai Receives an Award from the Royal Order of Kamehameha I

At a ceremony yesterday at Hulihe‘e Palace in Kona, Island of Hawai‘i, Dr. Keanu Sai received an award from the Royal Order of Kamehameha I for “unwavering commitment to reactivate the Hawaiian Kingdom Government and rectify over a century of unlawful occupation.” Presenting the award was Ali‘i ‘Aimoku Alika Desha.

On April 15, 1927, Ali‘i ‘Aimoku John C. Lane wrote in the Honolulu Advertiser under the title “Kamehameha Order Marks 25 Years of Growth With Convention Beginning Today”:

On or about May 13, 1902, there met in the old “Foster hall” a group of prominent Hawaiians, and there discussed the establishing of a fraternal organization among the Hawaiians. Present at the meeting were George H. Huddy, James H. Boyd, Abraham Fernandez, Charles H. Rose, William H. Coney, John H. Wise, Rev. J.M. Ezera, David K. Ainoa, Johh K. Nakookoo, and others. The result was the creation and establishment of the Order of Kamehameha, and Prince Jonah Kuhio Kalanianaole was chosen Alii Aimoku, the highest position in the Order, which position he held continuously until his death on January 7, 1922.

Pictured below are members of the Order of Kamehameha at the State funeral of Queen Lili‘uokalani in 1917.

Correcting Revisionist History: The Emperical Writes Back – Re-Examining Hawaiian Dispossession Resulting from the Māhele of 1848

In 2010, Donovan Preza graduated with his M.A. Degree in Geography from the University of Hawai‘i at Mānoa. His Master’s thesis was titled “The Emperical Writes Back: Re-Examining Hawaiian Dispossession Resulting from the Māhele of 1848.” Preza, through analytical rigor and academic research, effectively turned on its head the false belief that has been promoted by the University of Hawai‘i since the 1990s that the Māhele of 1848 was a disaster for the Hawaiian people.

Preza, for his Master’s thesis, was also the recipient of the Norman Meller Research Award for the best MA research paper produced at the University of Hawai‘i in the social sciences or humanities and focused on the Pacific Islands. Here is his abstract for his thesis:

This research examines the transition of land tenure in Hawai‘i to a system of private property. Known as the Māhele, this transition was believed to have been the cause of dispossession of Hawaiians from land. This thesis questions presumptions identifying the Māhele as a sufficient condition of dispossession. Historical approach, interpretation, authority and evidence types are examined while questioning and contributing to such debates. The Māhele process is re-examined and a nuanced description of the process was provided. This resulted in the identification of previously un-examined set of data: the fee-simple sale of Government Land. Analysis of these sales revealed an alternate explanation for dispossession in Hawai‘i: the loss of governance. Ultimately this is a story of dispossession, how it has been understood, misunderstood, and re-understood in Hawai‘i.

Correcting Misinformation: The Great Māhele is a “Process” of Hawaiian Land Tenure, not a “Singular Event”

There is much confusion on the 1848 Great Māhele that stems from the Hawaiian Indigeneity movement made up of scholars at the universities. This prompted Dr. Keanu Sai to write an article titled “Setting the Record Straight on Hawaiian Indigeneity” in 2021 that was published in volume 3 of the Hawaiian Journal of Law and Politics. Dr. Sai covers the false narrative of the Māhele that was promoted by the Hawaiian Indigeneity movement. The Māhele, as a process, is explained under the heading of Land Reform on page 67 in the eBook published by the Royal Commission of Inquiry. And the Royal Commission of Inquiry published its Preliminary Report on the Legal Status of Land Titles throughout the Real in 2020.

The Hawaiian Indigeneity movement manufactured the false belief that the Hawaiian Kingdom was controlled by Americans. In his book Dismembering Lahui: A History of the Hawaiian Nation to 1887, Professor Jon Osorio wrote that the Hawaiian Kingdom “never empowered the Natives to materially improve their lives, to protect or extend their cultural values, nor even, in the end, to protect that government,” because the system itself was foreign and not Hawaiian. Professor Sally Merry stated, in her book Colonizing Hawai‘i: The Cultural Power of Law, “the relationship between Euro-Americans and Native Hawaiians was a classical colonial relationship [that sought] to transform the society of the indigenous people and subsequently wrested political control from them.” Dr. Robert Stauffer wrote, in his book Kahana: How the Land was Lost, “the government that was overthrown in 1893 had, for much of its fifty-year history, been little more than a de facto unincorporated territory of the United States…[and] the kingdomʻs government was often American-dominated if not American-run.” And in her book Aloha Betrayed: Native Hawaiian Resistance to American Colonialism, Professor Noenoe Silva wrote that the overthrow “was the culmination of seventy years of U.S. missionary presence.” These conclusions have no basis in historical facts and relevant laws.

Another false narrative driven by the Hawaiian Indigeneity movement is that all Native Hawaiians are called Kanaka Maoli. In Hawaiian law, kanaka maoli refers to aboriginal Hawaiians that are pure blood, and those that are part aboriginal Hawaiian are hapa. According to Pukui and Elbert’s Hawaiian Dictionary, kanaka maoli are “Full-blooded Hawaiian persons.” This is also reflected in Bernice Pauahi’s will that established the Kamehameha Schools. Article 13 states, “I direct my trustees to devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.” Hawaiian is short for Hawaiian subject, which is the nationality, while aboriginal Hawaiian whether full or part is the race. If you are not a full-blooded aboriginal Hawaiian, you are not kanaka maoli but rather hapa.

The cornerstone of the Hawaiian Indigeneity movement is how terrible the 1848 Great Mahele was for the commoner or native tenant. In her book Native Land and Foreign Desires, Professor Lilikala Kame‘eleihiwa wrote, “The culmination of changes in traditional Land tenure in Hawai‘i in 1848 is commonly known as the ‘Great Māhele.’ I refer to it simply as the ‘1848 Māhele’ because it proved to be such a terrible disaster for the Hawaiian people, and the word ‘great’ has a connotation of superior. It was a tragic historical event, a turning point that had catastrophic negative consequences for Hawaiians.”

In his book, Dismembering Lahui, Professor Osorio agrees with Professor Kame‘eleihiwaʻs conclusion by writing, “As significant an event as the Māhele has proven to be, historians have seen it as a way of making specific indictments either of Ali‘i or of colonialism. No one disagrees that the privatization of lands proved to be disastrous for Maka‘ainana [commoners], yet the focus of every study, from John Chinen’s 1958 work to Kame‘eleihiwa in 1992, has been to try and establish the principal responsibility for its ‘failure.’”

Professor Kame‘eleihiwa wrongly claimed that the native tenants that submitted their claims with the Board of Commissioners to Quiet Land Titles, also known as the Land Commission, were the only native tenants that got land through the Māhele. She stated that the commoner class only received “a total of 28,658 acres of Land, which is less than 1 percent of the total acreage of Hawai‘i.” These native tenants were able to acquire fee-simple titles to their land under the 1850 Act Confirming Certain Resolutions of the King in Privy Council, passed on the 21st day of December, A.D. 1849, Granting to the Common People Allodial titles for their own Lands and House lots, and certain other Privileges. This law came to be known as the Kuleana Act.

The Kuleana Act addressed those native tenants that were not able to file their claim with Land Commission before the due date of February 14, 1848, by empowering them to go to the Minister of the Interior or his special agents to acquire up to fifty acres of land. The Minister of the Interior was responsible for the administration of Government lands that it received through the Mahele on June 7, 1848. In 1882, the Surveyor General reported to the Legislative Assembly that between “the years 1850 and 1860, nearly all the desirable Government land was sold, generally to natives.”

Donovan Preza, in his M.A. thesis on the Great Māhele tallied the number of acreage acquired by native tenants within this ten year period to be a remarkable 111,448.36 acres. This number of acreage is in addition to the 28,658 acres that commoners acquired from the Land Commission that Kame‘eleihiwa and Osorio hang theirs hats on as their sole evidence of oppression. By 1893, native tenants acquired from the Government a total of 167,290.45 acres. This is not evidence of dispossession and oppression of the commoners by the aristocracy and missionaries as argued by the movement of Hawaiian Indigeneity.

In a podcast interview on November 28, 2020, Professor Osorio made a startling comment. He said that the Māhele was “done to protect the hoaʻāina, the makaʻāinana, the people of the land who are not chiefs; to protect their existence on the land, and this is one of the most amazing things about the Māhele, and it was something that I didn’t really understand when I wrote my book. It was something that, really…Professor Keanu Sai makes clear to all of us.”

Professor Kame‘eleihiwa mistakenly thought that the Māhele was a singular event and not a process for separating the rights of the Government, Konohikis and the native tenants. The rights of these three entities were undivided. In the Hawaiian language, mahele is to divide and mahele‘ole is undivided. The 1839 Declaration of Rights established three vested rights in all the lands of the Hawaiian Kingdom. As the 1840 Constitution explains:

Kamehameha I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. I belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the management of the landed property.

The land tenure system was feudal. In 1882, the Surveyor General reported to the Legislative Assembly, “The ancient system of land titles in the Hawaiian Islands was entirely different from that of tribal ownership prevailing in New Zealand, and from the village or communal system of Samoa, but bore a remarkable resemblance to the feudal system that prevailed in Europe during the Middle Ages.”

As part of their vassalage, the chiefs had to pay the King taxes from their plantations, which was in swine, and the native tenants had to provide labor tax for both King and their chiefs on their plantation lands. The chiefs had to pay a particular weight of the swine per plantation or its equivalent in cash. The chiefs were also referred to as landlords. According to the Laws of 1842 Laws of the Hawaiian Islands that accompanied the 1840 Constitution, it stated:

The following is the rate of taxation for plantations, and, farms including plantations. There shall be no state, country, town and district tax, but only the following:

A large farm—a swine one fathom long.
A smaller one—a swine three cubits long.
A very small one—a swine one yard long.
If not a fathom swine, then 10 dollars.
If not a three cubit swine, then 7 ½ dollars.
If not a yard swine, then 5 dollars.

For the native tenants, the 1842 laws stated:

Hereafter a tax in labor shall not be required on every week of the month.—On two weeks, labor shall be done for his Majesty the King and also the landlords, and two weeks the people shall have wholly to themselves. The first week in the month the people shall work two days for the king and one for the landlords; the second week in the month they shall work one day for his Majesty the King, and two days for the landlords, and the next two weeks the people shall have to themselves.

Foreigners who were granted lands by the King and the chiefs were not part of the feudal system so they did not do any labor tax. On December 10, 1845, the Legislature began land reform by enacting a law establishing the Land Commission. The mandate of the Land Commission was to investigate all claims to private property that existed outside of the feudal system. Claimants to these lands had to file their claims for investigation between February 14, 1846, and February 14, 1848. Those that were required to file their claims to land were those who acquired their lands from the King or a chief prior to December 10, 1845.

After the investigation, the Land Commission would grant a Land Commission Award with a number if the claim was found valid. If it was rejected there was no Land Commission Award. Foreigners and those chiefs or native tenants that possessed property outside of the feudal system were required to file their claims. If they did not get their claim in before February 14, 1848, the lands reverted to the King and Government.

According to the Principles of the Land Commission:

The following benefits will result from these investigations and awards:—

1st. They will separate the rights of the King and Government, hitherto blended, and leave the owner, whether in fee, or for life, or for years, to the free agency and independent proprietorship of his lands as confirmed. So long as the King or Government continue to have an undivided proprietary share in the domain the King’s and Premier’s consent is necessary, by the old law, to real sales, or tranfers from party to party, and, by parity of reasoning, to real mortgages also. This is because of the share which Government or the body politic has in the lands of the kingdom uniformly. To separate these rights, and disembarrass the owner or temporary possessor from this clog upon his free agency, is beneficial to that proprietor in the highest degree, and also to the body politic; for it not only sets apart definitely what belongs to the claimant, but untying his hands, enables him to use his property more freely, by mortgaging it for commercial objects, and by building upon it, with the definite prospect that it will descend to his heirs. This will tend more rapidly to an export, and to a permanency of commercial relations, without which, there can never be such a revenue as to enable the Government to foster its internal improvements.

At this stage, the Land Commission was not authorized by law to grant titles to property but only to investigate and where found to be a valid claim issue a Land Commission Award. These Land Commission Awards vary from fee-simple, life estates, to leasehold. Below is Land Commission Award no. 511 issued to J.P. Parker. The Land Commission verified that Kamehameha III and the Premier Kekāuluohi conveyed a conditional fee-simple title to Parker on January 1, 1843.

On December 11, 1847, King Kamehameha III and his chiefs in Privy Council began to discuss the process of separating the rights of the Government from the chiefs, who were also called Konohikis, that would eventually lead to separating the rights of the Government and the Konohikis from native tenants. The purpose was to bring to an end the feudal system whereby the Konohiki and the native tenant will have an allodial title to their lands. According to Blackʻs Law Dictionary, allodial is “Free; not holden of any lord or superior; owned without obligation of vassalage or fealty; the opposite of feudal.” Fee-simple is synonymous with allodial.

There were 254 Konohikis and King Kamehameha III considered himself the highest of all Konohikis. He was making the separation of himself as a Konohiki under the feudal system and as Head of the Government. In the Privy Council minutes it states:

The King now claims to Konohiki of a great portion of the lands. He therefore makes known to the other Konohikis, that they are only holders of Lands under him, but he will only take a part and leave them a part…subject only to the rights of the Tenants.

The Chiefs do not greatly object to this, but they ask. Has the Government a third interest in the lands left to us? The King replies Yes and the Government has 1/3 interest in his. There are some who say no. Let us have an Allodial Title to what the King has left us subject only to the rights of the Tenants.

The Māhele formally began on January 17, 1848, where the King and Konohikis signed in a book the separation of the lands between themselves. This gave them a life estate to the lands assigned to them in the Māhele book called ahupua‘a and ‘ili kūpono. If they wanted to acquire the fee-simple interest in these lands they had to give the Government certain lands they received in the Māhele that would satisfy the one-third interest of the Government. Kamehameha III was the first Konohiki to do this when the Government, acting through its Legislature, accepted certain lands to be Government lands and the remaining lands became the fee-simple ownership of Kamehameha III. Kamehameha III’s lands came to known as Crown Lands that descended to the successors of the throne. According to the 1848 Act Relating to the Lands of His Majesty the King and of the Government:

[Listing of the ahupua‘a and ‘ili]

To be the private lands of His Majesty Kamehameha III, to have and to hold to himself, his heirs, and successors, forever; and said lands shall be regulated and disposed of according to his royal will and pleasure subject only to the rights of tenants.

[Listing of the ahupua‘a and ‘ili]

Made over to the Chiefs and People, by our Sovereign Lord the King, and we do hereby declare those lands to be set apart as the lands of the Hawaiian Government, subject always to the rights of tenants.

During the Māhele process amongst the Konohikis, native tenants were encouraged to file their claim with the Land Commission before the due date of February 14, 1848. Many native tenants did not make it in time. This is where the confusion lies regarding the Māhele. What is important to remember, the Land Commission was not authorized to grant titles to those who filed their claim, but rather only to investigate the claims to land. Native tenants that filed their claims with the Land Commission did not divide their rights yet with the Government or the Konohikis so they could not claim to have a fee-simple title to their lands. This will change the following year.

On December 21, 1849, the King in Privy Council passed resolutions so that the common people can get allodial or fee-simple titles to their lands, and to empower the Land Commission to grant these titles on behalf of the King and Konohikis. This would facilitate the process of separating the rights of the Government and the Konohikis from those claims that were filed with the Land Commission by native tenants. Although the resolution empowered the Land Commission to grant titles to native tenants, the Legislature was needed to amend the law that would allow the Land Commission to grant titles.

On August 6, 1850, the Legislature enacted an Act Confirming Certain Resolutions of the King and Privy Council, passed on the 21st day of December, A.D. 1849, Granting to the Common People Allodial titles for their Own Lands and House Lots, and Certain other Privileges. This law came to known as the Kuleana Act. The Kuleana Act stated:

Be it enacted by the House of Nobles and Representatives of the Hawaiian Islands, in Legislative council assembled:

That the following sections which were passed by the King, in privy council on the 21st of December, A.D. 1849, when the legislature was not in session, be and are hereby confirmed; and that certain other provisions be inserted, as follows:

  1. That fee-simple titles, free of commutation, be and are hereby granted to all native tenants, who occupy and improve any portion of any government land, for the lands they so occupy and improve, and whose claims to said lands shall be recognized as genuine by the land commission: Provided, however, that this resolution shall not extend to konohikis or other persons having the care of government lands, or to the house lots and other lands in which the government have an interest in the districts of Honolulu, Lahaina and Hilo.
  2. By and with the consent of the King and chiefs in privy council assembled, it is hereby resolved, that fee-simple titles free of commutation, be and are hereby granted to all native tenants who occupy and improve any lands other than those mentioned in the preceding resolution, held by the King or any chief or konohiki for the land they so occupy and improve; Provided, however, that this resolution shall not extend to house lots or other lands situated in the districts of Honolulu, Lahaina and Hilo
  3. That the board of commissioner to quiet land titles be, and is hereby empowered to award fee-simple titles in accordance with the foregoing resolutions; to define and separate the portions of lands belonging to different individuals; and to provide for an equitable exchange of such different portions, where it can be done, so that each man’s land may be by itself.
  4. That a certain portion of the government lands in each island shall be set apart, and placed in the hands of special agents, to be disposed of in lots from one to fifty acres, in fee-simple, to such natives as may not be otherwise furnished with sufficient land, at minimum price of fifty cents per acre.
  5. In granting to the people, their house lots in fee-simple, such as are separate and distinct from their cultivated lands, the amount of land in each of said house lots shall not exceed one quarter of an acre.
  6. In granting to the people their cultivated grounds, or kalo lands, they shall only be entitled to what they have really cultivated, and which lie in the form of cultivated lands; and not such as the people may have cultivated in different spots, with the seeming intention of enlarging their lots; nor shall they be entitled to the waste lands.
  7. When the landlords have taken allodial titles to their lands, the people on each of their lands, shall not be deprived of the right to take firewood, house timber, aho cord, thatch, or ti leaf, from the land on which they live, for their own private use, should they need them, but they shall not have a right to take such articles to sell for profit. They shall also inform the landlord or his agent, and proceed with his consent. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, and running water, and roads shall be free to all, should they need them, on all lands granted in fee-simple: Provided, that this shall not be applicable to wells and water courses which individuals have made for their own use.

Sections 1, 2, 3, 5, 6 and 7 applied to those native tenants that filed their claim with the Land Commission. While sections 4 and 7 applied to those native tenants that were not able to file their claim with the Land Commission but would go to the Minister of the Interior or special agents appointed by him to separate their interest with the Government. This group of native tenants did not get Land Commission Awards, but rather Royal Patent Grants. Below is Land Commission Award no. 4491 to Kuapu‘u by virtue of the Kuleana Act, followed by Royal Patent Grant no. 1042 to Kawahinekalewa by virtue of the Kuleana Act.

Of the three vested rights in the land, the Māhele was able to separate the Government from the 254 Konohiki lands, which included the Crown lands, and native tenants throughout the nineteenth century, whether by a Land Commission Award or a Royal Patent Grant. The Kuleana Act has not been repealed and still exists today for native tenants to acquire up to fifty acres in fee-simple. This is why the Māhele is a continuing process and not a singular event.

The Māhele was such a monumental event of moving Hawaiian land tenure from feudal to private ownership that it became known as the Great Māhele. On December 18, 1848, the King and Privy Council approved certain rules to be followed for the Māhele that was drafted by Hawaiian Chief Justice William Lee. After submitting the rules for consideration, Chief Justice Lee stated:

In submitting the above rules to the consideration of You Majesty, I beg to state that I believe these rules to be such as are dictated by the Constitution and Laws of Your Kingdom and by the liberal and bountiful spirit which it has pleased Your Majesty to manifest for the good of Your Nation. It is my firm conviction that this silent and bloodless in the landed tenures of Your Kingdom will be the most blessed change that has ever fallen to the lot of Your Nation. It will remove the mountain of oppression that has hither to rested upon the productiveness of your soil, unbind the fetters of industry and wealth, and give a life and action to the dormant resources of Your Kingdom, which cover your land with the stream of prosperity and gladness. It is difficult at this day to foresee the bright results of this momentous change. I am aware that the division of lands between the Chiefs and Tenants of Your Kingdom will be attended with a multitude of difficulties. I cannot say that the great mass of Your Nation are full prepared to receive so great an Emancipation. They may spurn this proposed freedom. But I do not sincerely believe, that this great measure, by raising the Hawaiian Nation from a state of hereditary servitude, to that of a free and independent right in the soil they cultivate, will promote industry and agriculture, check depopulation, and ultimately prove the salvation of Your People. I believe it to be a measure which will meet the approval of Your Majesty in years to come, and cause your name to be remembered with veneration and gratitude by generations yet unborn. I believe that if this measure be fully carried out in the liberal spirit in which it is begun, if the lands of Your Majesty’s Kingdom be unlocked, it will open the hidden fountains of prosperity, and prove the dawn of a new and bright era to Your Kingdom.

Meritocracy of the Regency and Command and Control by a Military Government

When the government of the Hawaiian Kingdom was restored in 1997 by a Council of Regency, it came into existence where the population of the Hawaiian Islands effectively had their national consciousness of the Hawaiian Kingdom from the nineteenth century obliterated and replaced with an American national consciousness. The process by which this obliteration occurred was by a deliberate and consistent policy of denationalization through Americanization that was formally instituted in the public and private school system in 1906 by the Department of Public Instruction, which is currently called the Department of Education.

According to the Programme, “The teacher will call one of the pupils to come forward and stand at one side of the desk while the teacher stands at the other. The pupil shall hold an American flag in military style. At second signal all children shall rise, stand erect and salute the flag, concluding with the salutation, ‘We give our heads and our hearts to God and our Country! One Country! One Language! One flag!’”

In 1907, Harper’s Weekly magazine covered the Americanization taking place at Ka‘ahumanu and Ka‘iulani Public Schools, which has students from the first to eighth grade. When the reporter visited Ka‘iulani Public School, he documented the policy being carried out and took a picture of the 614 school children saluting the American flag. He wrote:

At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten seconds all of the 614 pupils of the school began to march out upon the great green lawn which surrounds the building. Hawaii differs from all our other tropical neighbors in the fact that grass will grow here. To see beautiful, velvety turf amid groves of palms and banana trees and banks of gorgeous scarlet flowers gives a feeling of sumptuousness one cannot find elsewhere.

Out upon the lawn marched the children, two by two, just as precise and orderly as you can find them at home. With the ease that comes of long practice the classes marched and countermarched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads. Surely this was the most curious, most diverse regiment ever drawn up under that banner—tiny Hawaiians, Americans, Britons, Germans, Portuguese, Scandinavians, Japanese, Chinese, Porto-Ricans, and Heaven knows what else.

‘Attention!’ Mrs. Fraser commanded.

The little regiment stood fast, arms at sides, shoulders back, chests out, heads up, and every eye fixed upon the red, white, and blue emblem that waved protectingly over them.

‘Salute!’ was the principal’s next command.

Children_Salute_1907

Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice:

‘We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!’

The last six words were shot out with a force that was explosive. The tone, the gesture, the gaze fixed reverently upon the flag, told their story of loyal fervor. And it was apparent that the salute was given as spontaneously and enthusiastically by the Japanese as by any of the other children. There were hundreds of them in the throng, and their voices rang out as clearly as any others, their hands raised in unison. The coldest clod of a man who sees the children perform this act of reverence must feel a tightening at the throat, and it is even more affecting to see these young atoms from all the world actually being fused in the crucible from which they shall issue presently as good American citizens.”

Under customary international law, Americanization is a war crime of denationalizing the inhabitants of an occupied territory. Germans and Italians were prosecuted for the same war crime after World War II for implementing a systematic plan of Germanization and Italianization in occupied territories.

Indictment_Cover
Count_III
Germanization

The insurgency relied on loyalty, not merit, to fill the ranks of their provisional government in 1893 and their so-called Republic of Hawai‘i in 1894. When the United States seized control of the Hawaiian Islands by renaming the Republic of Hawai‘i to the Territory of Hawai‘i in 1900 loyalty in the ranks were continued by the insurgency pretending to be American citizens.

The lead insurgent, Sanford Dole, as President of the Republic of Hawai‘i, was appointed by President McKinley to be the Governor of the Territory of Hawai‘i. Loyalty to the insurgency was party affiliation to the Republican Party. In 1959, when the United States changed the name of the Territory of Hawai‘i to the State of Hawai‘i, loyalty was now under a new party—the Democratic Party, which continues today. While international law renders the current apparatus of the State of Hawai‘i not as a legitimate government but rather an occupant that is committing war crimes against the population of the Hawaiian Islands, it has not altered the firm grip of loyalty in the minds of alleged war criminals. What will eventually break this chain is criminal culpability and prosecutions like what occurred with with the Nazi Party in Germany.

When the Hawaiian government was restored in 1997 by a Regency, its officers had to conform to Hawaiian constitutional law and administrative processes. King Kamehameha III established, as an administrative process, meritocracy, which is where government jobs were based on merit and not solely on loyalty. Responding to a slew of appeals to remove these foreign advisors who replaced native Chiefs, Kamehameha III penned the following letter that was communicated throughout the realm—a letter that speaks to the time and circumstance the kingdom faced and establishing a meritocracy:

Kindly greetings to you with kindly greetings to the old men and women of my ancestors’ time. I desire all the good things of the past to remain such as the good old law of Kamehameha that “the old women and the old men shall sleep in safety by the wayside,” and to unite with them what is good under these new conditions in which we live. That is why I have appointed foreign officials, not out of con­tempt for the ancient wisdom of the land, but because my native helpers do not understand the laws of the great countries who are working with us. That is why I have dismissed them. I see that I must have new officials to help with the new system under which I am working for the good of the country and of the old men and women of the country. I earnestly desire to give places to the commoners and to the chiefs as they are able to do the work connected with the office. The people who have learned the new ways I have retained. Here is the name of one of them, G.L. Kapeau, Secretary of the Treasury. He understands the work very well, and I wish there were more such men. Among the chiefs Leleiohoku, Paki, and John Young [Keoni Ana] are capable of filling such places and they already have government offices, one of them over foreign officials. And as soon as the young chiefs are sufficiently trained I hope to give them the places. But they are not now able to become speakers in foreign tongues. I have therefore refused the letters of appeal to dismiss the foreign advisors, for those who speak only the Hawaiian tongue.

The Council of Regency and its officers had to become proficient in Hawaiian constitutional law, administrative law, land tenure, public international law, international humanitarian law, and the law of occupation. This is why Dr. Keanu Sai, as Chairman of the Council of Regency, secured a M.A. degree and a Ph.D. degree in political science specializing in international relations and law. Dr. Sai’s merit is also reflected in multiple peer review articles and published books on the topic of the Hawaiian Kingdom and its continued existence.

Loyalty was satisfied by Hawaiian administrative law where the members of the Cabinet Council were required to take the following oath, “I solemnly swear in the presence of Almighty God, that I will faithfully support the Constitution and laws of the Hawaiian Kingdom, and faithfully and impartially discharge the duties of [Minister of Foreign Affairs, the Minister of the Interior, the Minister of Finance, and the Attorney General].”

Under the law of occupation there is a working relationship between the occupant and the Regency as the government of the occupied State. International law constrains and regulates the actions of both entities with its collective duty of protecting the population of the occupied State. The law of occupation places another duty, which is paramount, on the head of the State of Hawai‘i Department of Defense, Major General Kenneth Hara, to proclaim the transformation of the State of Hawai‘i into a Military Government and begin to comply with the law of occupation.

According to the U.S. Manual for Courts-Martial, a “duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the Service.” In this case, MG Hara’s duty is imposed upon him by Article 43 of the 1907 Hague Regulations, and U.S. Department of Defense Directive 5001.1 that states it is the duty of the Army in “[occupied] territories abroad [to] provide for the establishment of a military government pending transfer of this responsibility to other authority.” It is not the duty of the Navy, Marines, or the Air Force. U.S. Army field manuals (“FM”) regulating military government are FM 27-5—Civil Affairs Military Government, FM 27-10—The Law of Land Warfare, FM 3-57—Civil Affairs Operations, and FM 6-37—The Commander’s Handbook on the Law of Land Warfare.

MG Hara’s failure to perform this duty that is established by treaty as an Army general officer is a crime under the Uniform Code of Military Justice, and a war crime of omission under international law. A soldier who is found guilty of willful dereliction of duty resulting in death or grievous bodily harm is subject to “dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.”

The war crimes tribunals in Nuremburg and Tokyo that followed the end of hostilities during the Second World War, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when the superior, by omission, fails to control or punish those under his/her command.

Paragraph 4-24 of the 2020 Army Regulations 600-200 states, “Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish.” The failure of MG Hara to transform the State of Hawai‘i into a Military Government has allowed for war crimes to be committed with impunity throughout the Hawaiian Islands by the unlawful imposition of American laws over Hawaiian territory, which is the war crime of usurpation of sovereignty during military occupation. This imposition of American laws has led to secondary war crimes such as unfair trials, unlawful confinement, confiscation or destruction of property, denationalization, pillage, etc.

According to the U.S. Department of Defense, command and control is the “exercise of authority and direction by a properly designated commander over assigned forces in the accomplishment of the mission.” Establishing a Military Government is a mission of the Army in occupied territory, and when it is established, it is not based upon democratic principles. U.S. Army Field Manual 27-5 states, “Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.”

FM 27-5 also states under command responsibility, the “theater commander bears full responsibility for military government; therefore, he is usually designated as military governor or civil affairs administrator, but is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” And the reasons for the establishment of military government “are either military necessity as a right, or as an obligation under international law.”

The mission of a military government assumes that the population of the occupied territory is hostile to its presence, which is precisely why the military governor has command and control. The military governor does not maintain the loyalties of the former government but rather severs it by replacing it with his authority in order to temporarily administer the laws of the occupied State until a peace treaty has been agreed upon that would bring the occupation to an end.

After General Dwight Eisenhower proclaimed the establishment of a Military Government in Germany on April 19, 1945, began the de-Nazification of Germany. In his proclamation, General Eisenhower stated, “we shall obliterate Nazi-ism and German Militarism. We shall overthrow the Nazi rule, dissolve the Nazi Party and abolish the cruel, oppressive and discriminatory laws and institutions which the Party has created. We shall eradicate that German Militarism which has so often disrupted the peace of the world. Military and Party leaders, the Gestapo and others suspected of crimes and atrocities will be tried and, if guilty, punished as they deserve.”

Like in the case of Germany, the Military Government for Hawai‘i would have to “obliterate” American-ism and American Militarism in order to begin the restoration of Hawaiian Kingdom national consciousness that existed before the American invasion on January 16, 1893. American-ism and American Militarism was established by the American authorities themselves in order to conceal the illegality of the occupation and the militarization of an occupied State. This would not be an easy task but it is, nevertheless a duty imposed by treaty and Army regulations, which falls squarely on MG Hara despite his personal feelings and/or perceived loyalties to the Democratic Party of the current administration. As an Army general officer, MG Hara is held to a higher standard than any person pretending to be an American politician in an occupied State, and his training and military education reveals it.

There would, however, be no duty imposed upon MG Hara if the Hawaiian Kingdom had ceased to exist as a State under international law, but this is not the case because his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, could not find any legal evidence that that was the case.

In 2014, LTC Phelps was the Deputy Prosecuting Attorney for the County of Maui in State of Hawai‘i v. English et al., criminal no. 14-1-0819, brought before Judge Joseph P. Cardoza of the Second Circuit Court. Attorney General for the Hawaiian Kingdom, Dexter Ka‘iama, served as the defendants’ counsel who filed a motion to dismiss both criminal complaints on the grounds that the court lacked subject matter jurisdiction because of the American military occupation of the Hawaiian Kingdom. Mr. Ka‘iama has been serving as the Attorney General of the Hawaiian Kingdom and member of the Council of Regency since August 11, 2013.

An evidentiary hearing was held at the Second Circuit Court on March 5, 2015, where Dr. Keanu Sai served as expert witness for the defense. The purpose for the evidentiary hearing was to meet the burden of proof established by the Intermediate Court of Appeals in State of Hawai‘i v. Lorenzo whereby defendants that are contesting the jurisdiction of the court must provide a “factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”

In Dr. Sai’s expert testimony, he provided the factual circumstances of the United States military occupation of the Hawaiian Kingdom and the unlawful imposition of American municipal laws as to the reason why the Court does not have subject matter jurisdiction because its authority extends from the 1959 Statehood Act passed by the Congress, which has no extra-territorial effect. In the court’s transcripts, Dr. Sai stated that for the Court to proceed it would violate “Article 147 [1949 Fourth Geneva Convention], unfair trial [as] a grave breach, which is considered a war crime.” When asked by Judge Cordoza, “Any cross-examination?” LTC Phelps responded, “Your Honor, the State has no questions of Dr. Sai. Thank you for his testimony. One Army officer to another, I appreciate your testimony.”

Binding on MG Hara was also the fact that the United States already recognized the continued existence of the Hawaiian Kingdom as a State and the Council of Regency as its government by opinio juris. Additionally, the United States explicitly recognized the Council of Regency, by a mutual agreement, so it could be granted permission to access all records and pleadings of the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration.

For MG Hara to continue to deny the overwhelming evidence that imposes upon him the duty and obligation to transform the State of Hawai‘i into a Military Government, he is establishing a very strong basis of “willfulness” of not performing his duty, which satisfies the criminal intent for the war crime of omission.

Dr. Keanu Sai to Present Update on the status of Hawai‘i under International Law to the Maui County Council on March 6, 2024

The Chair of the Maui County Council’s Disaster, Resilience, International Affairs and Planning (DRIP) Committee, Councilwoman Tamara Paltin, invited Dr. Keanu Sai to give an update on the status of Hawai‘i under international law at the DRIP Committee meeting on March 6, 2024. In 2019, Dr. Sai did three presentations on the Hawaiian Kingdom for the Maui County Council’s Land Use Committee.

The State of Hawai‘i finds itself at a Crossroads on February 17, 2024

In a letter that was emailed to Major General Hara yesterday by Dr. David Keanu Sai, as Head of the Royal Commission of Inquiry, he opened with:

On behalf of the Council of Regency, I hereby make a final appeal for you to perform your duty of transforming the State of Hawai‘i into a military government on February 17, 2024, in accordance with Article 43 of the 1907 Hague Regulations, Article 64 of the Fourth Geneva Convention, and Army regulations. To not do so, you will have command responsibility for the commission of the war crime of usurpation of sovereignty during military occupation by the legislative, executive, and judicial branches of the State of Hawai‘i.

Copied to the letter included members of the State of Hawai‘i Legislature and the County Councils. In that letter, Dr. Sai then laid out the circumstances that led to establishing the date of February 17, 2024, as the deadline for action. After 24 years of exposure of the Hawaiian Kingdom as an occupied State, the State of Hawai‘i is now at a crossroads. To continue on the path of illegality, or to change course because of legality is the question that faces officials of the State of Hawai‘i. In his letter to the members of the Legislature and County Councils on February 7, 2024, Dr. Sai wrote:

[I]f you shall not cease the enactment of American municipal laws and continue to commit the war crime of usurpation of sovereignty during military occupation with impunity, you will be the subject of a war criminal report, which will provide the factual information, to include this letter of communication, that satisfies the aforementioned four elements of criminal culpability. I urge you not to take this lightly. War crimes have no statute of limitations.

These ultimatums put forth by the Royal Commission of Inquiry stems from its duty and responsibility to investigate and prosecute war crimes committed within Hawaiian territory. This responsibility is not a choice but a duty, under international law, in order to protect the population of an occupied State. On the contrary, there is no responsibility or duty to enact American laws by officials that were elected by the American citizenry in the territory that is occupied by the United States because to do so is the war crime of usurpation of sovereignty during military occupation. However, to commit an international crime the act must be accompanied with mens rea or the guilty mind. In other words, the war crime must be committed with intent and knowledge.

Prior to receiving the letter from the Royal Commission of Inquiry it could be assumed that the members of the Legislature and the County Councils were not aware that their action in enacting American laws in an occupied State was unlawful under international law. But after they received the letter, the circumstances have changed, and their continued action of enacting laws would be committed with intent and knowledge.

Last year, when Germany prosecuted Irmgard Furchner, a 97-year-old woman, of being an accessory to more than 10,000 murders for her role as a secretary to the SS commander of the Nazis’ Stutthof concentration camp during the Second World War, the prosecutors had to prove intent. In the case, the judges were convinced Furchner “knew and, through her work as a stenographer in the commandant’s office of the Stutthof concentration camp from June 1, 1943, to April 1, 1945, deliberately supported the fact that 10,505 prisoners were cruelly killed by gassings, by hostile conditions in the camp,” by transportation to the Auschwitz death camp and by being sent on death marches at the end of the war.

In the Hawaiian situation, the enactment of American laws is the source of secondary war crimes such as denationalization through Americanization, unfair trial by a court that lacks lawful authority, unlawful confinement ordered by a judge without authority, destruction of property as the case of Mauna Kea, etc. Therefore, the enactment of American laws in an occupied State is not an innocent act of legislative responsibility unless there is irrefutable evidence that the Hawaiian Kingdom is not an occupied State. If the Hawaiian Islands constitute a part of the territory of the United States and that the State of Hawai‘i is a lawfully established government under the constitution and laws of the United States, then officials of the State of Hawai‘i have nothing to worry about.

Professor William Schabas, renowned expert on international criminal and war crimes, states that in order to establish criminal intent for war crimes, there is no requirement for a legal evaluation as to the existence of an occupation stemming from an international armed conflict. Instead, there is only a requirement for the awareness of the factual circumstances of an occupation. Conversely, a legal evaluation would be welcomed not for determining whether an act constitutes a war crime, but for providing irrefutable evidence that the Hawaiian Kingdom does not continue to exist as an occupied State.

This is why Major General Hara, after being apprised by Dr. Sai on April 17, 2023, that war crimes are being committed in the Hawaiian Kingdom as an occupied State, he tasked his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, to investigate. He could not find any legal basis to conclude Major General Hara has no such duty to establish a military government because the Hawaiian Kingdom is not an occupied State and that the State of Hawai‘i is a lawful entity. There exists no such legal opinion.

In fact, the Department of Justice’s Office of Legal Counsel does have a legal opinion on the annexation of Hawai‘i by a congressional legislation that it published in 1988. The opinion is not what you would expect from the federal government on Hawai‘i. The legal opinion was advising the State Department on the legal issues raised by a proposed Presidential proclamation to extend the territorial sea from three miles off the coast of the United Stats to twelve miles. In that legal opinion, Acting Assistant Attorney General Douglas W. 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.

In support of this conclusion, Acting Assistant Attorney General Kmiec relied on statements made in 1898 by members of the Congress, and also writings of constitutional scholar Professor Westel 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 it 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.

If it is unclear how Congress could annex foreign territory by legislative action, it would be equally unclear how Congress could establish the State of Hawai‘i by legislative action in 1959. Without a treaty all American laws imposed in the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty during military occupation.

In 2014, however, there was an attempt by an official of the State of Hawai‘i to get an answer from the State Department regarding the functions of the State of Hawai‘i in light of the 1988 legal opinion. The Office of Hawaiian Affairs top executive, Dr. Kamana‘opono Crabbe, submitted a formal request with the U.S. Department of State requesting a legal opinion from the U.S. Attorney General’s Office of Legal Counsel addressing the legal status of the Hawaiian Kingdom under international law.

In his letter to Secretary of State John F. Kerry, Crabbe said, “because the Department of State is the United States’ executive department responsible for international relations and who also housed diplomatic papers and agreements with the Hawaiian Kingdom, I am respectfully submitting a formal request to have the Department of State request an opinion from the Office of Legal Counsel, Department of Justice, addressing the following questions:

• First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?

• Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?

• Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?

• Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?”

This letter boxed in the Secretary of State by forcing him to answer the first question as to whether the Hawaiian Kingdom continues to exist as a subject of international law. If the Office of Legal Counsel can write a legal opinion that the Hawaiian Kingdom does not continue to exist, they don’t have to answer following three questions. The Secretary of State did not make the request for a legal opinion from the Office of Legal Counsel, which affirms the 1988 legal opinion that Congress could not annex the Hawaiian Islands by legislation.

Major General Hara and members of the Legislature and the County Councils should take heed of this information as February 17, 2024, is fast approaching.

The Duty to Protect the Population in Hawai‘i from War Crimes Committed by the State of Hawai‘i

The legal basis for the Council of Regency’s establishment under Hawaiian constitutional law and the legal doctrine of necessity was based on the continued existence of the country called the Hawaiian State. What was unlawfully overthrown on January 17, 1893, was the government of the Hawaiian Kingdom and not the Hawaiian Kingdom as a State under international law. In fact, international law protects the State and its continuity from the continuous violations of its sovereignty by another State. What international law cannot protect, however, is the population of the Hawaiian Islands from denationalization through Americanization that began as a formal policy in 1906.

Under international criminal law, denationalization is the process of replacing the national consciousness of the Hawaiian Kingdom, to include its language, in the minds of school children with the national consciousness of the United States and its English language. Within three generations since 1906, the national consciousness of the Hawaiian Kingdom was wiped clean in the minds of the population in the Hawaiian Islands. Denationalization is a policy carried out in the school systems of the occupied States that attempts to change the national consciousness in the minds of school children. The United States and the Allied Powers in the First World War determined denationalization to be a war crime committed by Germany, Austria, and Bulgaria against the population of the Kingdom of Serbia when Serbia was occupied.

From the Allied Powers 1919 Commission on Responsibilities for the First World War, under the heading “attempts to denationalize the inhabitants of occupied territory,” the Commission charged several crimes committed in Serbia by the Bulgarian authorities: “Efforts to impose their national characteristics on the population;” “Serbian language forbidden in private as well as in official relations. People beaten for saying “Good morning” in Serbian;” Inhabitants forced to give their names a Bulgarian form;” “Serbian books banned—were systematically destroyed;” “Archives of churches and law-courts destroyed;” “Schools and churches closed, sometimes destroyed;” “Bulgarian schools and churches substituted—attendance at school compulsory;” “Population forced to be present at Bulgarian national solemnities.” The Commission also stated that in Serbia the Austrian and German authorities “interfered with religious worship, by deportation of priests and requisition of churches for military purposes. Interfered with the Serbian language.” In United States v. Greifelt et al., in 1948, the war crimes tribunal specifically referred to the war crime of denationalization by German authorities in occupied territories during the Second World War. The tribunal observed:

Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied terri­tory were subjected to measures intended to deprive them of their national char­acteristics and to make the land and population affected a German province. The methods applied by the Nazis in Poland and other occupied territories, including once more Alsace and Lorraine, were of a similar nature with the sole difference that they were more ruthless and wider in scope than in 1914-1918. In this con­nection the policy of ‘Germanizing’ the populations concerned, as shown by the evidence in the trial under review, consisted partly in forcibly denationalizing given classes or groups of the local population, such as Poles, Alsace-Lorrainers, Slovenes and others eligible for Germanization under the German People’s List. As a result in these cases the programme of genocide was being achieved through acts which, in themselves, constitute war crimes.

The operative word used when describing the policy and acts of denationalization committed against the population of occupied States in both World Wars was “attempts.” The reason for the choice of this word was because the First World War only lasted for four years, and the Second World War only lasted six years. The American occupation is now at 131 years where the lies to conceal the occupation have become institutionalized and perceived to be the truth. As British novelist Dresden James wrote, “When a well-packaged web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and its speaker a raving lunatic.”

Another war crime committed by German, Austrian and Bulgarian authorities in occupied territories during the First World War was usurpation of sovereignty during military occupation. Usurpation of sovereignty is the imposition of the laws of the occupying State over the territory and its population of the occupied State. During the military occupation of a State, the occupying State is obligated to temporarily administer the laws of the occupied State until there is a treaty of peace. To impose the occupying State’s laws is a crime.

The Commission on Responsibility for the First World War charged that in Poland the German and Austrian forces had “prevented the populations from organising themselves to maintain order and public security” and that they had “[a]ided the Bolshevist hordes that invaded the territories.” It said that in Romania the German author­ities had “instituted German civil courts to try disputes between subjects of the Central Powers or between a subject of these powers and a Romanian, a neutral, or subjects of Germany’s en­emies.” In Serbia, the Bulgarian authorities had “[p]roclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian.” It listed several other war crimes of Bulgaria committed in occupied Serbia: “Serbian law, courts and administration ousted;” “Taxes collected under Bulgarian fiscal regime;” “Serbian currency suppressed;” “Public property removed or destroyed, including books, archives and MSS (e.g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub);” “Prohibited sending Serbian Red Cross to occupied Serbia.” It also charged that in Serbia the German and Austrian authorities had committed several war crimes: “The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial or­ganisation, etc.;” and “Museums belonging to the State (e.g., Belgrade, Detchani) were emptied and the contents taken to Vienna.”

The crime of “usurpation of sovereignty” was referred to by Judge Blair of the American Military Commission in a separate opinion in United States v. Alstötter et al. of 1951, “This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.”

When the Hawaiian government was restored by a Council of Regency in 1997, it also held vicarious liability for its actions. As a constitutional monarchy, the primary duty of the Hawaiian government is to protect the rights of its population. In Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, Larsen was alleging that he was not being protected by the Regency because the Regency, he argued, was allowing the unlawful imposition of American laws over him which led to his unfair trial and incarceration. The Regency denied this allegation but used the Permanent Court of Arbitration to recognize the continued existence of the Hawaiian Kingdom as a State and the Regency as its government.

This duty for governments to protect its population from war crimes reached the international level in 2005. At the United Nations World Summit in 2005, the Responsibility to Protect was unanimously adopted. The principle of the Responsibility to Protect has three pillars: (1) every State has the Responsibility to Protect its populations from four mass atrocity crimes—genocide, war crimes, crimes against humanity and ethnic cleansing; (2) the wider international community has the responsibility to encourage and assist individual States in meeting that responsibility; and (3) if a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter. In 2009, the General Assembly reaffirmed the three pillars of a State’s responsibility to protect their populations from war crimes and crimes against humanity. And in 2021, the General Assembly passed a resolution on “[t]he responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.” The third pillar, which may call into action State intervention, can become controversial.

Rule 158 of the International Committee of the Red Cross Study on Customary International Humanitarian Law specifies that “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” This “rule that States must investigate war crimes and prosecute the suspects is set forth in numerous military manuals, with respect to grave breaches, but also more broadly with respect to war crimes in general.”

What faced the Regency was how to protect a population from the commission of war crimes when that population itself had been completely denationalized into believing that the State of Hawai‘i exists as a lawful government under United States laws. The Regency’s strategy after returning from the PCA in the Netherlands was to effectively engage the devastating effects of denationalization through academic research at the university level. Since 2000, this research made public through published peer review articles, master’s theses, doctoral dissertations, books, and classroom instruction have managed to tear down the facade that the State of Hawai‘i is lawful and that the United States is an occupying Power.

During the occupation of the territory by an occupying State, there are two legal systems that exist at the same time, that of the occupied State and that of the occupying State. As Professor Krystina Marek explains, in “the first place: of these two legal orders, that of the occupied State is regular and ‘normal,’ while that of the occupying power is exceptional and limited. At the same time, the legal order of the occupant is…strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness.” The Regency knew that while the State of Hawai‘i exercised effective, but unlawful, control of Hawaiian territory there are rules that apply called international humanitarian law and the law of occupation. To knowingly violate these international laws created criminal culpability. While the Regency has no effective control as a result of the American occupation, it does have effective control of factual and legal information that it will use to compel compliance where the prolonged occupation will eventually come to an end by a treaty of peace.

Determined to hold to account individuals who have committed war crimes and human rights violations throughout the Hawaiian Islands, being the territory of the Hawaiian Kingdom, the Council of Regency, by proclamation on April 17, 2019, established a Royal Commission of Inquiry (“RCI”) in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.” Dr. David Keanu Sai serves as Head of the RCI and Professor Federico Lenzerini from the University of Siena, Italy, as its Deputy Head.

On February 7, 2024, the RCI sent a letter of communication to all members of the State of Hawai‘i legislature and the County Councils regarding the war crime of usurpation of sovereignty during military occupation. In the letter, Dr. Sai apprised them of his communication he’s had since April 17, 2023, with Major General Kenneth Hara, State of Hawai‘i Adjutant General, regarding his duty to transform the State of Hawai‘i into a Military Government and to begin to administer the laws of the Hawaiian Kingdom as the occupied State. Dr. Sai directed Major General Hara that, in accordance with international laws and Army regulations, he will issue a proclamation transforming the State of Hawai‘i into a Military Government. Should he fail to do so would be a dereliction in the performance of his duty and the war crime of omission.

Major General Hara would also be made the subject of an RCI war criminal report for the purpose of prosecution. There are no statutes of limitation for war crimes, which means a person can be prosecuted regardless of his age. In 2022, a German court convicted a 97-year-old women for war crimes she committed during the Second World War.

Major General Hara also has the duty to protect officials and employees of the State of Hawai‘i and the Counties who, like the Legislature and County Councils, are committing the war crime of usurpation of sovereignty during military occupation. The RCI has given more than enough time for Major General Hara to have completed his due diligence done by his Staff Judge Advocate Lieutenant Colonel Lloyd Phelps as to the continued existence of the Hawaiian Kingdom as an occupied State. On July 27, 2023, he acknowledged that the Hawaiian Kingdom continues to exist, which consequently triggered his duty.

A Brief History of International Law and its Application to the Hawaiian Kingdom Today

There are two laws that distinguish themselves from each other. There are “national” laws that are established within countries called States, and there are “international” laws that are established by the States themselves. Sources of national laws include the constitution, whether written or unwritten, statutes enacted by the legislature, and decisions by the highest court if the country is a common law system, e.g. United States and the Hawaiian Kingdom. Civil law countries like Italy and Germany do not have judge made laws. An indicator of whether the country is common law is if they have jury trials.

Every State is geo-political, which means that each State has their own geographical location and unique political experience that contribute to the function of their government, whether autocratic or democratic. And foreign influences and interests is what drives government reform and survival. In this regard, no two countries are alike.

Current international law has its roots in the Middle Ages of Europe. At the time, the Holy Roman Empire had great influence over the kings and dukes called Cannon Law. However, commercial, and maritime law was developing as well. In England the Law Merchant was established that covered rules governing foreign trade, which England, because of its naval power, declared was universal. This resulted in mercantile courts being established in trading ports throughout Europe to resolve disputes between traders of goods. According to Professor Malcolm Shaw,

Such rules, growing out of the Middle Ages, constituted the seeds of international law, but before they could flourish, European thought had first to be developed by that intellectual explosion known as the Renaissance. This complex of ideas changed the face of European society and ushered in the modern era of scientific, humanistic and individualistic thought.

The eventual fall of the supremacy of the Holy Roman Empire in 1648 gave rise to the States headed by kings and dukes. With a history of interaction between themselves that grew into custom prior to the fall, the interactions escalated with the introduction of the concept of sovereignty and centralized control of government of the State by another concept called the Leviathan, especially in the States of England, France and Spain. The concept of Leviathan was espoused by Thomas Hobbs in 1651 that advocated for a centralized monarchical form of government. With the printing press invented in the fifteenth century, this Hobbsian theory reached the ruling classes across Europe, who at the time were the only ones that could read.

With the rise of States and their interaction with each other, custom became the foundation of international law, which was supplemented with treaties. Eventually, principles of law that prevailed in the different States became norms or rules of international law that was universally accepted. When the Kingdom of Hawai‘i became a British Protectorate in 1794, the Hawaiian Kingdom in the nineteenth century was very much influenced by British forms of governance and the development of international law.

As a result of the positivist movement within States, which was a movement based on a scientific approach in thought rather than on faith, the movement eventually moved into the political and legal realms of governance called legal positivism. This movement eventually created the basis for a departure from the natural law of kings and dukes that relied on cannon law and moral thought, to a legal system that is based on existing and verifiable laws established by the legislature or the judges in a common law system. It establishes logic, consistency, and measurability like the methods of science and mathematics. Most importantly, legal positivism promotes predictability. In the courts of a common law country, this is called stare decisis, which is decision making by precedent set in previous court decisions.

Legal positivism eventually advocated the rule of law and not the politics of power, which drove many countries in Europe in the mid-nineteenth century into constitutional forms of governance and the recognition of civil and political rights. The French Revolution was an extension of this movement against absolute rule by a King. The Hawaiian Kingdom was riding this wave of government reform as it spread throughout Europe, and it successfully evolved from absolute rule to a constitutional form of governance with democratic principles without suffering the pains of revolution by the people like the case of France.

Positivism eventually would reach the international realm and be the driving force in reforming international law. Since constitutionalism separated government from the person of the king, which means the king was no longer the supreme absolute ruler but now a constitutional head of government, there would now be a separation of the government from the State.

In the sixteenth century, French jurist and political philosopher Jean Bodin stressed the importance that “a clear distinction be made between the form of the state, and the form of the government, which is merely the machinery of policing the state.” Nineteenth century political philosopher Frank Hoffman also emphasizes that a government “is not a State any more than a man’s words are the man himself,” but “is simply an expression of the State, an agent for putting into execution the will of the State.” Professor Quincy Wright, a twentieth century American political scientist, also concludes that, “international law distinguishes between a government and the state it governs.” Therefore, a State would continue to exist despite its government being overthrown by military force by another State’s armed forces.

As a result, customary international law would begin to be codified into treaty law. One particular aspect of customary international law was to bring order into the chaos of war, which was recognized as a means of enforcement of international law. Codification of the international laws of war began at the Brussels Conference in 1874 where the representatives of powerful and weak States advocated the formulation of the laws of war through multilateral treaties. While the first multilateral treaties that codified the laws of war were not done until 1899 called the Hague Conventions, rules of war eventually became accepted by States as customary international law, and they were recognized by States when they were at war since the mid-nineteenth century.

When a State’s territory is “effectively” occupied, customary international law obligates the occupying State to ad­minister the laws of the occupied State. This is reflected in Articles 2 and 3 of the 1874 Brussels Declaration where, “[the occupying State] shall take all the measures in his power to restore and ensure, as far as possible, public order and safety [and] shall maintain the laws which were in force in the country in peacetime, and shall not modify, suspend or replace them unless necessary.” Although the Declaration failed to be signed off by the European States and become codified, it did have scholarly approval. The Institut de droit international (IDI) in 1875 declared:

[A]lthough there was room for improvement, the new rules on occupation as suggested by the 1874 Brussels Declaration were essentially more favorable to peaceful citizens and public and private ownership in occupied territories than what had been provided by practice thus far and by the teaching of most scholars. The IDI subsequently adopted the same rules in its Oxford Manual on Land Warfare (1880).

Eventually codification occurred in 1899. Article 43 of the 1899 Hague Regulations states, “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” According to Professor Eyal Benvenisti:

The law of occupation as ultimately expressed in the 1899 Hague Regulations imposes two types of obligations on an army that seizes control of enemy land during war: the obligation to protect the life and property of the inhabitants and the obligation to respect the sovereign rights of the ousted government.

The “text of Article 43, according to Professor Benvenisti, “was accepted by scholars as mere reiteration of the older law.” Professor Doris Graber states that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code. And according to Professor Georg Schwarzenberger, “the Hague Regulations…was declaratory of international customary law.” The United States government also recognizes that Article 43 is customary international law that predates the Hague Regulations. In a 1943 legal opinion, the United States stated:

The Hague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effect during the occupation, subject to change by the military authorities within the limits of the Convention. Article 43: … This declaration of the Hague Convention amounts only to a reaffirmation of the recognized international law prior to that time.

The administration of occupied territory is set forth in the Hague Regulations, being Section III of the Hague Regulations. The 1899 Hague Regulations was superseded by the 1907 Hague Regulations. Also, consistent with what was generally consid­ered the international law of occupation, in force at the time of the Spanish-American War that predates the codification, the “military governments established in the territories occupied by the armies of the United States were instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the services of the local Spanish officials.”

Commenting on the occupation of the Hawaiian Kingdom, Professor Patrick Dumberry states:

[T]he 1907 Hague Convention protects the international personality of the oc­cupied State, even in the absence of effectiveness. Furthermore, the legal order of the occupied State remains intact, although its effectiveness is greatly diminished by the fact of occupation. As such, Article 43 of the 1907 Hague Convention IV provides for the co-existence of two distinct legal orders, that of the occupier and the occupied.

Stark parallels can be drawn between what the United States did to the Hawaiian Kingdom and what Iraq did to Kuwait in 1990, commonly referred to as the First Gulf War. Just as Iraq, without justification, invaded Kuwait and overthrew the Kuwaiti government August 2, 1990, the United States did the same to the Hawaiian Kingdom and its territory. Where Kuwait was under a belligerent occupation by Iraq for 7.5 months, the Hawaiian Kingdom has been under a belligerent occupation by the United States for 131 years.

Hiding the occupation does not legalize it under international law. The international law of occupation has and continues to apply in the prolonged American occupation of the Hawaiian Kingdom. Hawaiian national consciousness is regained through education and knowing its legal and political history.

National Holiday (November 28) – Independence Day

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

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Haalilio

The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.

George Simpson

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William Richards

Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Daniel Webster

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Aberdeen

Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C Calhoun

This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”

Repealing Hawaiian Citizenship Acquired by Birthright—Jus Soli

Today, October 2, 2023, the Council of Regency announced by proclamation that the acquisition of Hawaiian citizenship by being native or natural born within the territory of the Hawaiian Kingdom—jus soli, also called citizenship by birthright, has been repealed. From the date of the proclamation, the only way to acquire Hawaiian citizenship is being born in the Hawaiian Islands or abroad—jus sanguinis where at least one of the parents is a Hawaiian subject, or through naturalization by application to the Minister of the Interior. Citizenship by naturalization will not be considered until the United States occupation has come to an end. International law prohibits the acquisition of citizenship of the occupied State by birthright during the occupation because the law of occupation protects the status quo ante of the occupied State.

The proclamation’s intent is to protect the status quo ante of the population as it existed prior to the United States invasion on January 16, 1893, and its subsequent occupation that occurred the following day that is now at 130 years. According to the 1890 Government census, American citizens residing in the Hawaiian Kingdom numbered a mere 1,928, which was less than 2% of the entire population at the time, but exploded to 918,639 in 2009. Other populations of foreigners were also allowed by the United States to unlawfully migrate to the Hawaiian Islands that contributed to the radical disruption of the status quo ante of the population in 1893. The law of occupation is supposed to maintain and protect the status quo ante of the Hawaiian Kingdom, its institutions, population, and its economy but the United States did not adhere to the law of occupation for 130 years, which led to the commission of war crimes.

There are currently over thirty countries that have restricted citizenship by birthright—jus soli. In the case of India, it was in response to unlawful migration from Bangladesh.

Hawaiian Nationality: Who Comprises the Hawaiian citizenry

The European Convention on Nationality defines nationality as the legal bond between a person and a State and does not indicate the person’s ethnic origin. It is a person owing loyalty to and entitled by birth or naturalization to the protection of a given State. The terms nationality and citizenship are synonymous, and affords a person the political right to participate in government. Without it, a person is prevented from electing governmental officials or serving as a government official themselves. A political right is distinctly different from a civil right, which are basic human rights protected by the constitution and laws of the State, irregardless of a person’s citizenship. Non-citizens residing in the State are categorized as Aliens or Foreigners.

There are three ways a person could acquire citizenship within an established State depending on its national laws: (1) jus sanguinis, where a person being born outside the territory of the State acquires the citizenship of his or her parents; (2) jus soli, where the nationality is conferred upon a person by birth within the territory of the State; and (3) naturalization, where the government grants citizenship upon the application of a foreigner.

On January 21, 1868, the Minister of the Interior for the Hawaiian Kingdom, Ferdinand Hutchison, stated the criteria for Hawaiian nationality: “In the judgment of His Majesty’s Government, no one acquires citizenship in this Kingdom unless he is born here, or born abroad of Hawaiian parents, (either native or naturalized) during their temporary absence from the kingdom, or unless having been the subject of another power, he becomes a subject of this kingdom by taking the oath of allegiance.”

The position of the Hawaiian Government was founded upon Hawaiian statute. Section III, Art. I, Chap. V of an Act to Organize the Executive Departments, 1845 and 1846, provided: “All persons born within the jurisdiction of this kingdom, whether of alien foreigners, of naturalized or of native parents, and all persons born abroad of a parent native of this kingdom, and afterwards coming to reside in this, shall be deemed to owe native allegiance to His Majesty. All such persons shall be amenable to the laws of this kingdom as native subjects. All persons born abroad of foreign parents, shall unless duly naturalized, as in this article prescribed, be deemed aliens, and treated as such, pursuant to the laws.”

There are two exceptions where birth within the territory does not result in citizenship. First, where a child is born within the territory, but the child’s parents are foreign ambassadors or diplomats, that child is not a citizen of the territory of birth; and second, where a child is born of Alien enemies in an area of the territory under hostile occupation, that child will not be a citizen.

Regarding children of foreign diplomats, Frederick Turrill was an American citizen born in the Hawaiian Islands, but later got naturalized on May 21, 1888; and E.H. Wodehouse was a British subject born in the islands and later naturalized on May 7, 1892. The second exception applies to belligerent occupations.

There are numerous references to “children born of alien enemies in hostile occupation,” and one such reference is a U.S. Supreme Court decision. In 1898 during the Spanish-American War, the U.S. Supreme Court rendered a decision concerning the United States citizenship of Wong Kim Ark, a person of Chinese descent. In that decision it also expounded upon the two exceptions to the acquisition of citizenship by birth as determined by the common law of England and made reference to an English case, Calvin’s case, which was decided by the English Court in the year 1608. Although the Hawaiian Kingdom courts have stated that the common law is not in force in this Kingdom, it did state that “…in construing our law the Court must be guided by those enactments and the decisions of American and English Courts.” In re Apuna, 6 Haw. 732 (1869).

In United States vs. Wong Kim Ark (1898), the U.S. Supreme Court ruled:

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith’ or ‘power,’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore naturalborn subjects. but the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.”

In the Calvin’s case (1608), the English Court stated: “…for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject of the King of England though he be born upon his soil;” and “if any of the King’s ambassadors in foreign nations have children…they are natural born subjects [of England], yet they are born out of the King’s dominion.”

Once a State is occupied, international law preserves the status quo of the occupied State as it was before the occupation began. To preserve the nationality of the occupied State from being manipulated by the occupying State to its advantage, international law only allows individuals born within the territory of the occupied State to acquire the nationality of their parents—jus sanguinis. To preserve the status quo, Article 49 of the Fourth Geneva Convention mandates that the “Occupying Power shall not…transfer parts of its own civilian population into the territory it occupies.” For individuals, who were born within Hawaiian territory, to be a Hawaiian subjects they must be a direct descendant of a person or persons who were Hawaiian subjects prior to the American occupation that began on January 17, 1893, which is when Queen Lili‘uokalani conditionally surrendered to the United States. All individuals born after the surrender to the present are Aliens who can only acquire the nationality of their parents. According to Professor von Glahn, “children born in territory under enemy occupation possess the nationality of their parents.”

According to the 1890 government census, Hawaiian subjects numbered 48,107, with the aboriginal Hawaiian, both pure and part, numbering 40,622, being 84% of the national population, and the non-aboriginal Hawaiians numbering 7,485, being 16%. Despite the massive and illegal migrations of foreigners to the Hawaiian Islands since 1898, which, according to the State of Hawai‘i numbered 1,302,939 in 2009, the status quo of the national population of the Hawaiian Kingdom is maintained.Therefore, under the international laws of occupation, the aboriginal Hawaiian population of 322,812 in 2009 would continue to be 84% of the Hawaiian national population. The 16% of non-aboriginal Hawaiian subjects will need to be determined by a census report.

Similar to the Hawaiian Kingdom, the Baltic States of Estonia, Latvia and Lithuania were occupied by the Russians for over half a century. In 1940, Russian intervention provided for the forced incorporation of these Baltic States into the U.S.S.R. In 1991, with the breakup of the Soviet Union, these Baltic States once again regained their independence and immediately had to deal with the pressing issue of citizenship in the aftermath of prolonged Russian occupation.

Roger Brubaker, author of the article Citizenship struggles in Soviet Successor States (1992), stated that Estonia adopted a model for defining the initial body of citizens as the restored State model. States who regained their former independence are called restored States, and as these States are not new there would be no need to redefine a new body of citizens, but rather utilize the laws that existed before the occupation to determine the citizenry.

Under this model, persons born in Estonia before the 1940 annexation and their descendants were recognized as having Estonian citizenship. This also included United States citizens who were the offspring of Estonians. Regarding the citizenry of the occupier, the Estonian government also applied the same view the 1898 U.S. Supreme Court had made in U.S. vs. Wong Kim Ark. It viewed all Russians who entered the country after the occupation in 1940, and their descendants, as illegal and could not claim Estonian citizenship. But if a Russian was born in Estonia before the occupation that person acquired citizenship. Latvia also adopted the restored State model. Therefore, it can be stated as a matter of law and based on contemporary examples, that the Hawaiian citizenry of today is comprised of descendants of Hawaiian subjects and those foreigners who were born in the Hawaiian Islands prior to January 17, 1893.

This exclusion of the Hawaiian citizenry is based upon precedence and law, but a restored Hawaiian government does have the authority to widen the scope of its citizenry and adopt a more inclusive model in the aftermath of prolonged American occupation. Brubaker stated that Lithuania adopted such a model. Under the inclusive model, the original citizenry of Lithuania was confirmed under the restored State model, but the foreigners, which included the Russians, were divided into two groups. The first group comprised of permanent residents who would be granted optional inclusion in the Lithuanian citizenry, while the second would be classified as aliens. The optional inclusion of the first group depended upon these residents meeting certain minimum requirements established by the Lithuanian government. (i.e. years of residency and/or language).

Despite over a century of illegal migration that exploded the Alien population from 41,873 in 1890, of which U.S. citizens merely number 1,928, to 918,639 in 2009, the population of Hawaiian subjects has remained intact with its ratio of 84% aboriginal Hawaiians, who can readily be determined, and 16% non-aboriginal Hawaiians yet to be determined. This should alleviate the concern of aboriginal Hawaiian subjects who previously thought they were the minority, when in fact and law they remain the majority of the Hawaiian citizenry. Only Hawaiian subjects, whether aboriginal or non-aboriginal, have political rights, which means they alone can participate in government. §784 of the Hawaiian Civil Code states, “No alien shall be allowed to vote for representatives of the people.”