According to Blackstone, the English common law rule of jus soli—any person born within British territory is a British subject by birth, is traced back to the feudal law of England based on allegiance to the King. Because allegiance was at the core of natural born citizenship, the common law rule carved out exceptions for those born within British territory whose parents held foreign allegiances such as foreign diplomats or enemy invaders.

On February 25, 1794, King Kamehameha I, showing his allegiance to King George III, ceded the Island Kingdom of Hawai‘i to the British King thereby establishing Hawai‘i as a British Protectorate. Since that date, Kamehameha I, his Chiefs and people were British subjects. According to Captain Vancouver, who was present at the ceremony, he stated the issues “being fully discussed, and thoroughly understood on both sides, the king repeated his former proposition, which was now unanimously approved of, and the whole party declared their consent by saying, that they were no longer Tanata no Owhyhee [Hawai‘i], (i.e.) the people of Owhyhee [Hawai‘i]; but Tanata no Britannee (i.e.) the people of Britain.”

As a result, English common law applied over the Kingdom of Hawai‘i, to include Kamehameha’s acquisition of the Island Kingdom of Maui 1795, and the Island Kingdom of Kaua‘i in 1810. Anyone born within Kamehameha’s kingdom were natural born British subjects.

When the Hawaiian Kingdom became an independent State on November 28, 1843, English common law no longer applied over Hawaiian territory because there was a new allegiance to be owed to King Kamehameha III, a constitutional monarch. Addressing Hawaiian citizenship, the Hawaiian Legislature enacted the Third Act of Kamehameha III in 1847:

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 kingdom, shall be deemed to owe native allegiance to His Majesty. As such persons shall be amendable to the laws of this kingdom as native subjects.

Natural born citizenship was codified by Hawaiian statute until the legislature enacted the 1859 Civil Code that repealed the Third Act of Kamehameha III. However, natural born citizenship survived by Hawaiian common law in 1856 in Naone v. Thurston, where the Supreme Court stated, “defendant in this case was born of foreign parentage, within the jurisdiction of this realm, and claims to be a Hawaiian subject by birth.” The Civil Code does not mention natural born, but rather Hawaiian citizenship by naturalization and letters patent of denization, which is dual citizenship.

On January 21, 1868, Ferdinand Hutchison, Hawaiian Minister of the Interior, stated the criteria for Hawaiian nationality. He announced it in the Hawaiian Government’s newspaper, The Hawaiian Gazette:

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 have been the subject of another power, he becomes the subject of this Kingdom by taking the oath of allegiance.

The “judgment of His Majesty’s government” firmly established the means by which a person acquires Hawaiian citizenship through being natural born—jus soli, born abroad of Hawaiian parents—jus sanguinis, naturalization, and denization. The latter two are by virtue of taking the oath of allegiance.

When U.S. troops unlawfully overthrew the government of the Hawaiian Kingdom, by an act of war, and began its prolonged occupation on January 17, 1893, sovereignty remained vested in the Hawaiian Kingdom. According to paragraph 353 of the U.S. Army Field Manual 27-10:

Being an incident of war [act 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 [by administering the laws of the occupied State], 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 (See Geneva Convention, art. 47).

Consequently, allegiance to the Hawaiian Kingdom, under its domestic law, remained unaffected. Therefore, natural born citizenship of the Hawaiian Kingdom continued to apply to children born within Hawaiian territory except for those children born of diplomats and those children born of the population of the invader—United States citizens. In United States v. Wong Kim Ark, the U.S. Supreme Court explained:

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 natural-born 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.

The last census done in the Hawaiian Kingdom in 1890 listed the entire population at 89,990.  Here follows the breakdown by nationality:

According to the United States Census of the population in the Hawaiian Islands from 1900 to 1950, migration from the continental U.S. and its territories in fifty years exploded to 293,379.  Here follows the breakdown by year:

On April 30, 1900, the U.S. Congress passed “An Act to Provide a Government for the Territory of Hawaii.  Regarding U.S. nationals, section 4 of the 1900 Act stated that:

all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii.  And all citizens of the United States resident in the Hawaiian Islands who were resident there on or since August twelfth, eighteen hundred and ninety-eight and all the citizens of the United States who shall hereafter reside in the Territory of Hawaii for one year shall be citizens of the Territory of Hawaii.

In addition to this Act, the Fourteenth Amendment of the United States Constitution also provided that individuals born in the Hawaiian Islands since 1900 would acquire U.S. citizenship. It states, in part, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Under these American municipal laws, the putative U.S. national population exploded in the Hawaiian Kingdom from a meager 1,928 out of a total population of 89,990, in 1890, to 423,174 out of a total population of 499,794 in 1950. 

The migration of the American population into Hawaiian territory, to include Puerto Ricans and the Filipinos, having both become U.S. territory by the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain, constitutes the war crime of unlawful transfer of populations to the occupied territory. According to Professor Schabas, who authored a legal opinion on war crimes being committed in the Hawaiian Kingdom since January 17, 1893, “[b]elligerent occupation is a temporary situation and not the prelude to annexation. For this reason, the Occupying Power must not change the demographic, social and political situation in the territory it has occupied to the social and economic detriment of the population living in the occupied territory.”

The unlawful imposition of American laws within the territory of the Hawaiian Kingdom, under an American occupation, constitutes the war crime of usurpation of sovereignty during occupation, and, therefore, have no legal effect. According to Professor Schabas, the “crime of ‘usurpation of sovereignty’ was referred to by Judge Blair of the American Military Commission in a separate opinion in the ‘Justice Case:’ ‘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.'”

Furthermore, the U.S. Supreme Court, in United States v. Curtiss-Wright Corp., stated, (“[n]either the [federal] Constitution nor the [federal] laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of inter-national law; and it also stated, in The Apollon, “[t]he laws of no nation can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.”

On July 4, 1894, the provisional government, which President Cleveland stated in his manifesto to the Congress on December 18, 1893, “owes its existence to an armed invasion by the United States,” changed its name to the so-called Republic of Hawai‘i. Thereafter, twenty countries violated their obligation of neutrality by recognizing the American puppet and consequently became parties to the war on the side of the United States. These countries spanned Europe, the Americas, and Asia. Customary international law in the nineteenth century required that countries had to have been made aware that a state of war existed between the United States and the Hawaiian Kingdom in order to trigger their obligation to be neutral or to become co-belligerents with the United States.

The publication of the President’s manifesto to the Congress on December 18, 1893, in The Alexandria Gazette would have satisfied awareness of the state of war by the Legations in Washington, D.C. He stated to the Congress:

And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.

“If a neutral neglects this obligation,” explains Professor Oppenheim, “he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.” The recognition by these countries was an attempt to provide de facto or diplomatic recognition of the American puppet in a state of war that the U.S. initiated. Of these countries, Austria-Hungary, Brazil, Chile, China, France, Mexico, Netherlands, Peru, Russia, and Spain maintained Legations accredited to the United States in Washington, D.C. in 1893, and, therefore, cannot claim they were unaware of the circumstances of the invasion and overthrow of the Hawaiian government. Under the law of neutrality, countries must refrain from siding with one belligerent to the detriment of the other belligerent. The Hawaiian Kingdom became a belligerent, under international law, as a consequence of the U.S. invasion.

The dates of the recognition are as follows—Austria/Hungary on January 1, 1895, Belgium on October 20, 1894, Brazil on September 29, 1894, Chile on September 26, 1894, China on September 12, 1894, France on August 31, 1894, Germany on October 4, 1894, Guatemala on September 30, 1894, Italy on September 23, 1894, Mexico on August 8, 1894, Netherlands on November 2, 1894, Peru on September 10, 1894, Portugal on December 17, 1894, Russia on August 26, 1894, Spain on November 26, 1894, Sweden/Norway on December 17, 1894, Switzerland on September 11, 1894, and the United Kingdom on September 19, 1894.

The recognition of the so-called Republic did not alter the status of the puppet regime but rather serves as the indisputable evidence that these countries violated their obligation to be neutral during a state of war and instead chose to become co-belligerents with the United States against the Hawaiian Kingdom. Diplomatic recognition of governments does not occur during a state of war between countries but rather only in a situation where revolutionaries within a country succeed in replacing the former government, thus becoming a de facto government by recognition of other countries.

These recognitions were made under the false pretense that the so-called Republic, being an American puppet, succeeded in a revolution and therefore was the new government of Hawai‘i. This narrative was refuted by the President’s manifesto, where he stated that the provisional government “was neither a government de facto nor de jure [because] it was not in such possession of the Government property and agencies as entitled it to recognition.” The insurgents’ control was by virtue of a foreign State’s intervention and not revolution. The co-belligerent States cannot deny this legal reality, notwithstanding their belligerent acts of recognizing the so-called Republic.

Despite the unlawful imposition of American laws, Hawaiian Kingdom laws continued to be in force throughout Hawaiian territory. This included Hawaiian natural born citizenship until the Council of Regency, by proclamation, repealed “the Hawaiian common law of native born or jus soli” on October 2, 2023. Another exception to acquiring Hawaiian natural born citizenship would be foreign populations that entered the territory of the Hawaiian Kingdom under United States immigration laws after 1898.

Consequently, the children born in the Hawaiian Kingdom of the populations of the co-belligerent States of Austria, Belgium, Brazil, Chile, China, France, Germany, Guatemala, Hungary, Italy, Mexico, Netherlands, Norway, Peru, Portugal, Russia, Spain, Sweden, Switzerland, and the United Kingdom, did not acquire Hawaiian nationality if they were born after the date of their country’s recognition of the so-called Republic of Hawai‘i.

All other children born of foreign parentage in the Hawaiian Kingdom prior to the United States imposition of its laws in 1898 are Hawaiian subjects. If children born of foreign parents that arrived in the Hawaiian Kingdom after 1898, under U.S. immigration laws, they acquire the citizenship of their parents and are not natural born Hawaiian subjects. If a person is a direct descendant of foreign parentage that arrived in the Hawaiian Kingdom before 1898 and born before the repealing of Hawaiian natural born citizenship on October 2, 2023, they would be natural born Hawaiian subjects.