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 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.

Ferdinand_William_HutchisonOn January 21, 1868, the Minister of the Interior for the Hawaiian Kingdom, His Excellency 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 His Majesty’s Government was founded upon Hawaiian statute. Section III, Art. I, Chap. V of an Act to Organize the Executive Departments, 1845 and 1846, provided that: “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 the same year the United States began its hostile occupation of Hawaii in 1898 during the Spanish-American War, its 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 at 12 noon on August 12, 1898, which was when ceremonies took place by the United States annexing the islands. All other individuals born after 12 noon on August 12, 1898 to the present are Aliens who can only acquire 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 numbers 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, and the non-aboriginal Hawaiian population of 61,488 would continue to be 16%. The balance of the population in 2009, being 918,639, are Aliens who were illegally transferred, either directly or indirectly, by the United States of America as the occupying Power.

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 August 12, 1898.

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).

Addition: The first occupation by the United States of America took place from January 17, 1893 to April 1, 1893, which, according to international law, any child born between these dates can only acquire the citizenship of their parents. International law provides that an occupation begins when foreign troops are in effective control of an invaded State’s territory and not merely present within the territory. Although the U.S. troops were landed on January 16, 1893, it did not have effective control until Queen Lili‘uokalani temporarily yielded her executive power to the United States, which called for a Presidential investigation. Before Special Commissioner James Blount initiated his investigation he ordered the U.S. flag to be removed and ordered the troops back on to the U.S.S. Boston that was anchored in Honolulu harbor on April 1, 1893.

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 and 16% non-aboriginal Hawaiians. 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. Only Hawaiian subjects, whether aboriginal or non-aboriginal, have political rights, which means they alone can participate in government.

19 thoughts on “Hawaiian Nationality: Who Comprises the Hawaiian citizenry

  1. Hawaii’s situation is indeed unique and certain precedents are not made in stone. My personal opinion is that the date of occupation should begin in 1893 when the U.S. acknowledged their Provisional Government. Those prior that date of birth could very well be Hawaiian subjects sans traitors to the Kingdom. The contract workers were also aliens and it shows since the Kingdom was established until the 1890 census, only 73 Chinese and 3 Japanese naturalized to the Kingdom. This means the rest maintained their foreign citizenship. I would think that those born after 1893 of foreign parentage to today would all be considered foreign/alien. We could give them the opportunity to naturalize to the Kingdom and for them to renounce their previous citizenship. Those descendants of the Hawaiian Kingdom in foreign countries, including the U.S. and Canada, still maintain their citizenship to the Hawaiian Kingdom and have that opportunity to relocate to Hawaii or give up their Hawaiian citizenship or work out a system in renewing it.

    It should be remembered that the U.S. Republic of Hawaii, did not allow Asians to vote, thus one couldn’t be legal citizens of it, especially since it enforced the Asian ban of the Republic of Hawaii. The Ku’e Petitions of 1897 proved that the Hawaiians didn’t support or acquiesced in the Republic of Hawaii and maintained their Hawaiian Kingdom citizenship. This should prove that the Republic of Hawaii is in name only and had nothing to ceded to the U.S. and still under belligerent occupation by the U.S. and conferred its name only and those already U.S. citizens. So, when the U.S. proclaimed the people of the Republic of Hawaii as U.S. citizens, the Hawaiian subjects (except traitors), and foreigners, maintained their original status and not U.S. citizens. We3ll, that’s my point of view.

    • Dual citizenship was extended to those commissioned by the government and pressed into service and had to take an oath of allegiance. In 1890, there were about 88 foreigners that this was extended to. It was a practice because of racism in the Western culture and the Kingdom used them to counter that outlook and in order for the Kingdom to participate fully. Sad, but true. Back then the government was still using trial and error and naturalization laws were still a bit “primitive” and not as developed to cover all aspects; it was slowly refining the laws. This is why they didn’t have expatriation laws set explicitly. Today, we’re more aware of the many aspects, particularly as defined by the U.S. rather than the development of those laws in the Hawaiian Kingdom. The gray areas need to be updated and more precise; but under Kingdom laws and not by American laws and interpretation. International laws have been codifying such areas that we could follow under those bases and be more creative. Nothing is written in stone and our nation-state can set the policies it chooses.

  2. Lelemia, those are very good questions on dual citizenship. I would also be interested on how the HK acting gov’t or a De Jure HK gov’t would deal with dual citizenship at the present time. There will also be a need to deal with those who will claim no citizenship to any nation.

    • Just my understanding. Currently, the Hawaiian Kingdom is being occupied by a foreign country. It would be safe to say that there are no longer any foreign diplomats working in the service its Government. They have since passed on. The illegal occupant government “officials” and their followers do not qualify as they are all insurgents.

      Aloha,
      Doreene

  3. Yes a stateless person or many stateless persons could be a problem. If the issue of deportation arises where do you deport them? No other state would want someone’s problem children.

  4. Dr. Sai stated in one of his lectures that ”we cannot judge yesterday by today’s standard”, so my question is this: Why would the Convention of 1949 [regarding the U.S. transporting its own civilian poputlation into occupied territory] apply from the time frame between 1898-1948? 1949 being ”today” and the time frame between 1898-1948 being ”yesterday”.

  5. Development of Laws of Nations and Law of Nature (1758) was developing and perceived by English common Law and Napoleonic Code and other nations used similar common laws and codes. By the mid 1800s, International laws was accepted by all recognized nations. The Brussels Project (1874) and Hague Regulations 1899/ 1907 was adopted by all countries as customary international laws. Lieber Code (1863) was developed and codifying rules applicable to international rules. Oxford Manual (1880) on the Laws of War on Land adopted by the Institute of International Law was sent to various European governments and encouraged to adopt. This gave clarity to existing laws and rules of war adopted by the nations. Convention of 1949 is based on these laws and reaffirmed existing international rule and laws. The U.S. uses Rules of Land Warfare based on the Lieber Code in their Military Manual. Thus, the occupier transporting its civilian population into occupied territory is is customary international law that existed previous to the convention of 1949 and still observed today.

  6. All a bunch of crap by folks that feel they would be better off not having to pay taxes and the likes to anyone, govt. Trouble is they will be the freeloaders of the islands if this were to ever come to fruition.

    • Again a bad case of emotional commitment to ignorance. So you think that your standard of living would not be better off with a 30% increase…? Oh I know. you think that your US tax dollars are for good and services to the public, then you have not read the Grace Commission’s $76 Million study that was funded entirely from private sector donations and cost the taxpayers nothing. The commission made 2,478 recommendations that would save the taxpayers $424.4 billion over three years without cutting essential services or raising taxes.

      In a letter to President Reagan dated January 12, 1984, Grace encapsulated his commission’s findings. He warned the president of multi-trillion dollar government debts by the year 2000 should the federal government not act upon his commission’s recommendations. to President Reagan that said: “…all individual income tax revenues are gone before one nickel is spent on the services which taxpayers expect from their Government.”

      And i hear a little stereotyping in your comment “freeloaders of the islands” and your comment in your other post. Until you have walked in their footsteps you speak from that point of ignorance. You are speaking from the point of view of the largest debtor nation in the world, why would you want to be part of that…? If you talk about freedom, then you are even more ignorant.

  7. Saw this on another site advocating break off; The greatest challenge facing the Native Hawaiian people is to overcome our poverty and inadequate wages, to provide homes and better jobs and opportunities and to improve the quality of life of Native Hawaiians. Our new legislature must urgently address these needs. Only if all residents of our islands prosper will a real and permanent prosperity be possible for our people.

    As an “alien” that lives on and owns a business in Hawaii, I can categorically say with first hand experience this will never, never come to be. There are Native people that want to live in poverty, not have a job or opportunity to succeed but would rather have the govt provide for them and it doesn’t matter what govt.

    • Your emotional commitment to ignorance is manifested in your statement. You are imposing what is becoming an antiquated thought process of “go to school, study, hard, get good grades, so you can get a good job” that has taken the US from a country that 100 years ago 90% of the people were independent to a country where 90% of the people are dependent and is the US is now biggest debtor nation in the world.

      Question: How did Hawaii with a estimated population of 800,000 prior to foreign invasion survive and prosper…? Do you think it was because “Natives” did not want to work…? I wonder what your mental, social and economic status would be if you were kidnapped forced to learn a new language, had your culture, your history your religion taken away…?

      Isn’t it interesting that the social, economic, mental and physical health of the American Indian parallels what has happened in Hawaii. What do you think, it’s a coincidence…? Do some research a find out the status of natives wherever the US/Britain Imperialism has intruded into countries.

  8. I was born in Hawaii and have lived here all my life but I do not have Hawaiian blood. How do I submit my oath of allegiance and become a subject of the Kingdom?

    • Application and approval for citizenship can only happen after the occupation ends and an elected de jure gov’t is in place.

  9. I don’t claim to be an expert in the area of ‘dual nationality/citizenship’ and am only offering this observation to assist those with questions to assist them in figuring out ‘an’ or ‘the’ answer. There are three ‘angles’ or ‘perspectives’ in nationality/citizenship issues. This is most pertinent in ‘dual nationality’ situations. Say there are two states involved. The Hawaiian Kingdom [or Kingdom of Hawaii] and the United States. Any issue gets ‘measured’ if you will with three ‘yardsticks’ [law is like a ruler which you use to measure things in this sense. There is ‘international law’; The HK ‘legal order’ of constitutional, statutory, regulatory, and decisional law give the standards by which HK nationality is determined for HK purposes. The US ‘legal order’ of constitutional, statutory, regulatory, and decisional law give the standards by which US nationality is determined for US purposes. But there is a caution. The requirements of international law ‘seeps’ into national law and influences what the national ‘yardstick/ruler’ is. If someone wants to find fault with this description it wouldn’t be difficult because it is a ‘devishly’ complex/complicated area in which there are competing sovereigns [HK and US] over which is draped International Law which has many sources and has no ‘enforcer’ which stirs the pot even more. From a practical point of view for those concerned with or claiming HK nationality the matter becomes ‘genealogical’ in the sense of ‘who’s your daddy/mommy, grand-daddy/grand-mommy/ great-grand’…. well you see where this is going. If I were asked I would advise tracking the family tree back [which would include date of birth, location of birth etc] to a HK national as the first step. As a matter of historical fact, US law ‘purported’ to impose US nationality on all ‘citizens’ of the purported Republic of Hawaii which had ‘purported’ to create ‘citizens’ of the ‘purported’ Republic and which had in turn imposed ‘citizenship’ on HK nationals/subjects. This has gone on longer than intended so I’ll stop with a final suggestion. Take a look at the rules of membership in the US organization the “Daughters of the American Revolution” or “Sons of the American Revolution” for a model on how to prove up a claim. Curiously it began only a few years before the US invaded the Hawaiian Islands in January 1893 and began the first occupation and it’s first president was the wife of Benjamin Harrison, whose role in the US war on the Hawaiian Islands hasn’t yet been explored enough. Check out the DAR wiki https://en.wikipedia.org/wiki/Daughters_of_the_American_Revolution and then go to the organization itself and see what kinds of ‘proof’ the organization accepts and you’ll have an idea what kind of proof might be needed when it becomes clear the ‘second’ US occupation ends and the nation begins to reconstitute itself by establishing “who is and who ‘ain’t'” a Hawaiian National. Cheers.

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