It has been nearly a month since the Office of Hawaiian Affairs (OHA) CEO Dr. Kamana‘opono Crabbe posed four questions to Secretary of State Kerry in a letter dated May 5, 2014.
- 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?
These questions centered on the existence of the Hawaiian Kingdom and generated so much attention that it has awakened a sleeping giant—the Hawaiian community. Academics and professionals that stood shoulder to shoulder behind Dr. Crabbe at his press conference on May 12, 2014 showed their solidarity and support. One of these individuals who stood directly behind Dr. Crabbe was Professor Williamson Chang, senior law professor at the University of Hawai‘i Richardson School of Law. In a Star-Advertiser article, Professor Chang described the letter as “a profound and important moment in history.” “He has raised an issue that has not been approached before. It’s remarkable that a state agency is asking these questions,” he said.
What has replaced the rhetoric of politicians and sovereignty activists that often distorts Hawaiian history and law has been replaced by historical accuracy and legal sophistication. Academics armed with Ph.D.’s have begun to address Hawai‘i’s revisionist history that became institutionalized since the American occupation began in 1898, and attorneys have begun to apply this information in the courts throughout Hawai‘i.
From an international law perspective, these questions were cleverly worded and organized and are grounded in the recognized principle of international law called the presumption of continuity of an established sovereign State, which is similar to the principle of presumption of innocence. An assumption is a conclusion “without” facts and a presumption is a conclusion “with” facts. So when a person is accused of committing a crime that person is presumed to be innocent until proven guilty beyond a reasonable doubt because of the fact that the accused has legal rights. In international law, an established sovereign State is presumed to continue to exist because of the fact that it has legal rights, until evidence can be shown by another State that it has extinguished the sovereignty of the former State.
In 2001, the Permanent Court of Arbitration in the Netherlands verified the existence of the Hawaiian Kingdom as an independent State in Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 581 (2001) . The Court stated in its arbitration award, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” As an established State under international law since the nineteenth century, the Hawaiian Kingdom has these legal rights that apply to all States:
- States are judicially equal;
- Each State enjoys the rights inherent in full sovereignty;
- Each State has the duty to respect the personality of other States;
- The territorial integrity and political independence of the State are inviolable;
- Each State has the right freely to choose and develop its own political, social, economic and cultural systems; and
- Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.
According to Professor Crawford, The Creation of States in International Law (2006), p. 34, who is not only the leading authority on States, but was also the presiding arbitrator in Larsen v. Hawaiian Kingdom, “There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” So despite the illegal overthrow of the Hawaiian Kingdom government by the United States on January 17, 1893, and the prolonged occupation since the Spanish-American War in 1898, the Hawaiian Kingdom, as a State, would continue to exist even if there was no Hawaiian government.
The presumption of continuity places the burden on the United States to show legally relevant facts that the Hawaiian Kingdom does not continue to exist under international law. In other words, the Hawaiian Kingdom does not have to prove its own existence because it is presumed to continue to exist, just as a person does not have to prove their innocence. To effectively remove the presumption of continuity, there must be uncontroverted evidence of the extinguishment of the Hawaiian Kingdom by the United States. Since the Hawaiian Kingdom has legal rights under international law, the United States will have to provide evidence of extinguishment that only international law recognizes. According to Article 38 of the Statute of the International Court of Justice, the following sources of international law, ranked in order of precedence, are:
- International conventions (treaties), whether general or particular;
- International custom, as evidence of a general practice accepted as law;
- The general principles of law recognized by civilized nations; and
- Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Under international law, a State who claims to be the successor of another State, when not at war, must take place by cession. Professor Oppenheim, International Law (1948), p. 499, explains that, “cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State.” He further points out that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State.” The United States only claim to have extinguished the Hawaiian Kingdom is by a joint resolution of annexation passed by its Congress.
A joint resolution, however, is not a treaty or agreement between two states, but rather an agreement between the House of Representatives and the Senate in Washington, D.C. A joint resolution is a municipal law of the United States whose effect is limited to United States territory. The United States Supreme Court, The Apollon, 22 U.S. 362, 370 (1824), affirmatively stated, that the “laws of no nation can justly extend beyond its own territory” for it would be “at variance with the independence and sovereignty of foreign nations” In U.S. v. Belmont, 301 U.S. 324, 332 (1937), the Court also stated that, “our Constitution, laws and policies have no extraterritorial operation.”
Further complicating the problem for the United States was a legal opinion by the United States Department of Justice’s Office of Legal Counsel in 1988. In the 1988 memorandum titled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” the Office of Legal Counsel addressed the annexation of the Hawaiian Islands by joint resolution. Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded, “Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. … 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.”
Sovereignty of an established State is never in abeyance or in suspension. The sovereignty is either vested in the Hawaiian State itself or in the United States as its successor. If the Attorney General’s Office of Legal Counsel is “unclear” as to the authority of Congress, it cannot be considered to have extinguished the Hawaiian Kingdom’s continuity under international law, and, therefore, the presumption of continuity would remain with the Hawaiian Kingdom as an independent sovereign State.
So when we revisit Dr. Crabbe’s letter and his questions posed to Secretary of State Kerry there is only the first question that would need to be answered with clear and convincing evidence that the Hawaiian State no longer exists under international law. But to do so, the United States would need to provide evidence of a treaty of annexation or an international custom that has terminated the Hawaiian State, which it doesn’t have. In other words, Dr. Crabbe’s questions were really rhetorical questions that he already knew the answers to. The significance of the letter, however, is that it was a formal notification of a State of Hawai‘i government official to the Secretary of State that OHA is aware that the Hawaiian Kingdom continues to exist and that it will have to deal with issues of criminal liability under international law.
Amazing, hope Kerry answers soon….Mahalo for all you have done…
Awesome article — powerful information here. These are very exciting times.
Kerry is not going to answer and never was expected to. To hope for an answer is to be inadvertently mislead. And lets be realistic, OHA is not aware of/in support of the continuity of the Kingdom of Hawai’i. The CEO is obviously aware and in support but not the board who makes OHA policy and holds the real power over the institution. We finally got an honest and principled friend and aloha aina in a leadership position but I expect that Kamana’o’s days at OHA are numbered. Unless… certain trustees are voted out.
Aloha e Andres,
I agree. When the Trustees rescinded Kamana`o’s letter it removed the validity of its importance. Unless a letter from the Trustees rescinds the rescinded letter, Kerry is removed from the responsibility of responding. It then pushes the Kanai`olowalu back into the ball park.
As far as “trustees are voted out” it still does not commit new Trustees to make everything right. It’s still an illegal entity sworn to uphold the US and SOH Constitutions. I suggest we work without OHA and move to work as a separate lahui from the treasonous entities to focus our energy on removing the USA and its puppet government from our Hawaiian Kingdom. It doesn’t make sense to continue the quest to convince OHA to work for our country when they are committed to the illegal occupier. We’ve done our best to reason with them. It’s up to them now to choose whether they are patriots of our Country or continue high treason.
Ko`u mana`o wale no.
Ko Hawai`i Pae `Aina. EO!
This report was published in Star Bulletin on 1988 in it’s back page. I have the clipping. No one took us seriously back then as today. Denial or ignorance is no excuse.
Very much on target as usual, Keanu! Well done, Especially the distinction you draw between “assumption” and “presumption.” That was a new one for me, and quite useful. I have an interview this week with our local 150-year old county newspaper here in Maine on this very subject matter as a result of my book “Liberate Hawai’i!” I plan to present this new evidence as I make the case. Mahalo and onipa’a until we win! Jon
Aloha e Jon Olsen,
Please send us a copy of your article. We certainly would mahalo for the interview report.
Gladly! I may be able to provide an electronic link; if not I can send a hard copy directly to Keanu. Thank you Doreene for your interest. I sent 15 copies of Liberate Hawai’i to Native Books per Maile Meyer, but have yet to learn of their arrival. That was at least 2 weeks ago.
Yes, powerful information indeed and a clear distinction between “assumption” and “presumption”. The ball is now on the lap of the United States to prove that they extinguished Hawaii’s sovereignty and we all know they can’t. In regards to OHA the last sentence says it all: “The significance of the letter, however, is that it was a formal notification of a State of Hawai‘i government official to the Secretary of State that OHA is aware that the Hawaiian Kingdom continues to exist and that it will have to deal with issues of criminal liability under international law”. Now OHA like the Judge’s, attorneys and a whole list of individuals will have to “deal with issues of criminal liability” such as War Crimes, Felonies, Fraud and even the possibility of Treason. Mahalo Keanu!!!
Kmiec stated “… It is therefore unclear which constitutional power
Congress exercised when it acquired Hawaii by joint resolution.”
Why??? Does the U.S. have multiple constitutions to rely upon?
Perhaps the U.S. constitutional power of HEWA?
There is NO wiggle room for the United State to be in Hawaii. They’re caught RED HANDED and now they would have to excuse them self and pay everyone back for all the illegal taxes we were force to pay over the years. All lands that the STATE, CITY AND FEDERAL claims that they own and plantation lands should all be returned back to the people. OHA SHOULD NOT BE IN CONTROL OF ANY $$$$$ AND LAND. DESTROY OHA… KEEP CRABBE IN THE HAWAIIAN GOVERNMENT AND GET RID OF THE REST.
If Kerry don’t respond to Dr. Crabbe’s letter which I don’t expect a response form him, we should IMUA and take ownership of our KINGDOM ASAP…
Aloha ka kou,
Sorry i’m a little confused. I have a question, it seems to be bothering me.
If OHA continues to do the roll. Are the voters part of the war crime? Also are the native hawaiian people indigeness to america the same people as the kanaka maoli?
I feel as tho, we’ve been down this path before.
Please kokua… mahalo
The term native Hawaiian was created by the united states of America to put whomever calls himself this in a class similar to native americans. The best/true term for the Hawaiian kingdom subjects is just that or Hawaiian kingdom nationals. The original people from these islands are called kanaka maoli. Another thing people should know is that the word indigenous is a term used to describe certain peoples who have not organized themselves with respect to/as having a government or democratic monarch to run its populations. Yes the Hawaiian kingdom nationals are not indigenous because we had a constitution, penal code laws and office of nobles and house of representatives, a fully run government. mahalo
I think the term indigenous” refers to people who have occupied a geographic area from prehistoric times as original inhabitants, as opposed to those who came later as settlers, invaders, or conquerors. While I fully understand that Hawaiian society had evolved a highly sophisticated and modern state in the 1800’s, I don’t think this removes kanaka maoli from being rightly called “indigenous,” i.e. original inhabitants. That is my understanding of the term.
Indigenous are the first people’s of the land. First nations people. True Native Hawaiians before the arrival of all Europeans n visitors.
Agreed, There is nothing in what I say that contradicts this. I think I am up to speed. You can judge for your self by going to http://www.liberatehawaiithebook.com
The indigenous native hawaiian of the US and the kanaka of HK are the same. One has been denationalized and americanized.
Without a treaty of cession the house of cards has fallen.
Sorry I was lost in the confusion. Now I know.
Ua mau ke EA o ka AINA I ka pono.
The SOVEREIGN NATION continues on rightfully.
Mahalo nui ka kou
This may be off the track a little, but did anyone see any mention in the Star Advertiser today of it being Kamehameha Day. I could not find anything on the front page or even on the local page of them recognizing today as being June 11, 2014, “Kamehameha Day”.
I called the Star Advertiser to ask why there was no mention of it being Kamehameha Day, a state holiday and the woman I spoke with did not know there was no story about the holiday. She then told me she would pass the message to the department that handles these stories, but they would not get it until Thursday because they were off for the holiday. I thought this was funny because when I initially called customer service, there’s a message informing callers that the rest of the staff was done at 10:00am today as well so they can enjoy the holiday.
I thought this was total disrespect, but yet they can enjoy the holiday as well in the name of our King.
Just a thought
Aloha kaua e Kuniole.
On today’s online version at least there is under the Features section posted by Staff “Elaborate feather creations fit for a King.” Separately, there are two articles on the OHA roll by Keli’i Akina & Brickwood Galuteria under the Editorial section of Island Voices.
MAY EVERY SECRET AND HIDDEN THING BE REVEALED…THE LAND IS THE LORDS AND HE HAS PLANS FOR HAWAII….
Obviously, OHA has been made aware of the facts of Hawaii’s occupation and the presumption of continuity. They will soon come to realize that anything they say or do can be used against them if it’s in a commision of a war crime or their complicity in a war crime. They are not liable as a State of Hawaii agency because if the State is an illegal regime then the State is without legal authority and will disolve. All you have left are individuals acting on their own and holding all the liability. The only way for them protect themselves would be under the doctrine of necessity. Instead of waiting for the FEDS to implement a Military Provisional gov’t operating from the top down they need to take the lead and operate from the bottom up. This way when the FEDS do conform to the laws of occupation because the protective powers would be here to monitor the U.S., individuals from OHA have a chance not to have war crime complaints hanging over their heads. This would be a good strategy for all FED,State,county and even civilians to implement. They are actually required to do this under their oathes of office they swore to up hold. The U.S constitution Art.6 sec.2 says that the TREATY is the Supreme Law of the Land and all are bound to it. Since there is no TREATY OF ANNEXATION for Hawaii then they are bound to the Liliu’/Cleveland Exec. agreements and the Geneva Conventions which the U.S. is a party. They are bound to those TREATIES and would be in violation of their own oathes and laws if they do not comply.
Wow this is some interesting insights…Mahalo to all…to making all things PONO 🙂
As someone stated early in this thread, Kerry is relieved of the burden of answering the questions posed because the OHA trustees rescinded the letter….
Unless they formally rescind the rescinding why would Kerry bother to respond? It’s a can of worms that he does not want to open…
Its a double sword. The answer will, “dam (them) if they do and dam (them) if they don’t”. Either way they’re stuck. There’s no hiding the truth. They’ve blown their cover.
In chess, it is called checkmate! However, chess requires that both sides play by the rules. USA does not do that. Note: interview cited earlier has been postponed by reporter due to some breaking story. Later . . .
“Russia at it in Ukraine, again.” 🙂
Keep us posted when it happens.
It appears the letter would not require a response from Kerry. Remember, he has the right to remain silent if what he says could and would be used against him in a court of law. The decision if the Hawaiian Kingdom continues to exits as a subject of international law is not left up to the U.S. state department. It already is verified through a legal analysis, that is what the war report is all about. It appears the letter was for the Trustees and put them on notice. It goes to show their state of mind and intent. Remember, ignorance is not a defense for a crime, it may lessen the punishment. However, committing a crime with full knowledge shows willful intent.
Mm-mmm. Yep! Its been almost a month since that letter was sent to the U.S. State Department and the most amazing thing about it since then is this: There has been no response to those questions. As what Simon said in “Die Hard with a Vengeance,”
“Thank you. Your silence says I’m understood”
And indeed the U.S. Government’s silence on this matter says that they DO understand! Especially with all the discovered legal information of Hawaii’s history for the last 14 years, its honestly amazing that they have not refuted the legal fact that Hawaii is occupied. So it should be an automatically fact; Hawaii is occupied by the United States. It is not and never has been a part of the United States. (But you all know that, don’t you?) This is just saying for people who thinks Hawaii is a “part of the United States” Well, my question to them is this: “If Hawaii is a ‘part of the United States’ then how come the U.S. Government did not prove that in the year 2000 at the Permanent Court of Arbitration? Furthermore, they were once again asked this question recently in May 2014. How come they have not proven it still? Because if Hawaii is a ‘part of the United States,’ shouldn’t the U.S. Government provide evidence that it is just like that *SNAPS FINGER*?
I will go into more details, but if that question does not disturb one’s mind, then they so need to see some light from their blind eyes. Sad really.
OHA is a perfect example of the fox guarding the hen house, who put these people in charge to handle your affairs.
Did Mr Crabbe know the answer to the questions (after all he is hawaiian)or was he just making sure he follow the laws of the US. You people need to wake the hell up. The US is controlling the affairs of Hawaiians is this not the very government that has been holding the Hawaiian Nation hostage for over 100 years.
Aloha J, I’m pretty sure we are awake. Some people just woke up sooner than others. The sharing of factual information wakes up the masses faster. I think the title of this thread answers your question. My above posts offers all employees of the illegal regime a practical and legal basis for them to comply with the laws of occupation even before the U.S. implements them. Simply put, their oathes of office to up hold the U.S. constitution and it’s laws require them to do it. Without a Treaty of annexation as proof to rebut the presumption of HK continuity they have a legal duty to follow the Geneva Conventions. Mahalo for your time.
1 .Kingdom of Hawaii n people needto submit a petition to USA to close down the Office of Hawaiian Affairs as it cannot represent our Ohana n our people no longer ,being illegally set up without the authority of the people n Kingdom of Hawaii.
2 Seek apologies n compensation for taxes , illegal collections of fines , council collections money, displacement of people’s n lands usages etc. Deportation of all illegal immigrants n multinational corporate entitys without kingdom visas.
3.Compensation for illegal takeover of the Kingdom of Hawaii xxxx trillion dollars x years of inhabiting kingdom.
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