‘No Treaty, No Annexation’ are common buzz words from some arguing that the overthrow of the Hawaiian Constitutional Monarchy on January 17, 1893 was ineffective and the Hawaiian Kingdom still exists.
However, where, specifically, does it say, then and now, that a ‘Treaty’ is required, or the Senate must vote on ‘Annexation’ in a certain way?
Annexation of Hawai‘i to the US was not a hostile takeover, it was something the Republic of Hawai‘i sought.
“There was no ‘conquest’ by force in the annexation of the Hawaiian Islands nor ‘holding as conquered territory;’ they (Republic of Hawai‘i) came to the United States in the same way that Florida did, to wit, by voluntary cession”. (Territorial Supreme Court; Albany Law Journal)
In Hawai‘i, “In 1893, ‘[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawai‘i, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.’ ‘That government sought annexation by the United States’ (Newlands Resolution).” (US Supreme Court)
“Then the provisional government grew into the constitutional Republic of Hawai‘i, and we have fully recognized that as the rightful and permanent government of Hawai‘i, and have kept our minister and consul-general at Honolulu and our war ships in that bay to protect them and the Republic….” (Fifty-Fifth Congress, Second Session, Committee on Foreign Relations, March 16, 1898)
“No nation in the world has refused recognition of the Republic of Hawai‘i as the rightful Government, and none of them question its soverign [sic] right to deal with any question that concerns the people of Hawai‘i.” (Fifty-Fifth Congress, Second Session, Committee on Foreign Relations, March 16, 1898)
“Recognized by the powers of the earth, sending and receiving envoys, enforcing respect for the law, and maintaining peace within its island borders, Hawaii sends to the United States, not a commission representing a successful revolution, but the accredited plenipotentiary of a constituted and firmly established sovereign State.”
“… the Republic of Hawai‘i approaches the United States as an equal, and points for its authority to that provision of article 32 of the constitution promulgated July 24, 1894, whereby …”
“The President (of the Republic of Hawai‘i,) with the approval of the cabinet, is hereby expressly authorized and empowered to make a treaty of political or commercial union between the Republic of Hawai‘i and the United States of America, subject to the ratification of the Senate.” (US Secretary of State Sherman, June 15, 1897)
The Hawaiian resolution for ratification of the annexation treaty was unanimously adopted by the Senate of the Republic of Hawai‘i on September 9, 1897.
“There is no provision in the [US] Constitution by which the national government is specifically authorized to acquire territory; and only by a great effort of the imagination can the substantive power to do so be found in the terms of any or all of the enumerated powers.”
“The United States has acquired territory through cession, purchase, conquest, annexation, treaty, and discovery and occupation. These methods are permissible under international law and have been approved by the Supreme Court.”
“The executive and the legislature have performed different roles in the acquisition of territory by each of these means. Unfortunately, the historical practice does not supply a precise explanation of where the Constitution places the power to acquire territory for the United States.” (Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, October 4, 1988)
“The power of congress to acquire new territory, either by conquest, purchase, or annexation, was much debated at the time of the acquisition of Louisiana from France, in 1803, and in a less degree in connection with the purchase of Florida and of Alaska.”
“It has now come to be recognized and established, rather by precedent and the general acquiescence of the people, than by any strict constitutional justification. In fact, the power cannot be derived from any narrow or technical interpretation of the constitution.”
“But it is necessary to recognize the fact that there is in this country a national sovereignty. That being conceded, it easily follows that the right to acquire territory is incidental to this sovereignty. It is, in effect, a resulting power, growing necessarily out of the aggregate of powers delegated to the national government by the constitution.” (Handbook of American Constitutional Law)
“Territory is acquired by discovery and occupation where no other recognized nation asserts sovereignty over such territory. In contrast, when territory is acquired by treaty, purchase, cession, or conquest, it is acquired from another nation.” (Footnote, Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, October 4, 1988)
“We have acquired much territory under treaty provisions and by conquest, and in such case the acquisition may be regarded as incidental to the powers mentioned …”
“… but we have also acquired territory by original discovery and appropriation alone. Such is the fact with reference to a large portion of Oregon; and such is peculiarly the fact with reference to certain small islands of the sea— the so-called Guano Islands.” (George Sutherland, Constitutional Power and World Affairs (1919))
Some cite the ‘Apology Resolution’ as evidence of a faulty process; however, as noted below, ”the Apology Resolution did not confer substantive rights or have a substantive legal effect. Thus, the Apology Bill cannot serve to support a fundamental right to nation-building”. (SCWC-29794)
“The State Supreme Court, however, read [this] as a congressional recognition – and preservation – of claims against Hawai‘i. There is no justification for turning an express disclaimer of claims against one sovereign into an affirmative recognition of claims against another.”
The US Supreme Court concluded, “First, ‘whereas’ clauses like those in the Apology Resolution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, ‘where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation …, a court has no license to make it do what it was not designed to do.’”
“Second, even if the ‘whereas’ clauses had some legal effect, they did not ‘chang[e] the legal landscape and restructur[e] the rights and obligations of the State.’”
“The Apology Resolution reveals no indication – much less a ‘clear and manifest’ one – that Congress intended to amend or repeal the State’s rights and obligations under Admission Act (or any other federal law); nor does the Apology Resolution reveal any evidence that Congress intended sub silentio to ‘cloud’ the title that the United States held in ‘absolute fee’” and transferred to the State in 1959.”
“Third, the Apology Resolution would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that ‘Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.’”
A later Hawaiʻi Supreme Court case noted (in 2014,) “The US Supreme Court reversed this court, holding that the Apology Resolution did not confer substantive rights or have a substantive legal effect. Thus, the Apology Bill cannot serve to support a fundamental right to nation-building”. (SCWC-29794)
It’s interesting to note the Supreme Court’s repeated references to the Republic of Hawai‘i, Annexation, Territory, Newlands Resolution, Admission Act, State, etc.
Commenters, please focus on the question here: Where, specifically, does it say, then and now, that a ‘Treaty’ is required, or the Senate must vote on ‘Annexation’ in a certain way?
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Bill Jardine says
There is a fundamental genius in the concept of a civilization based on law as opposed to decree, and it is the genius that lies at the heart of the American experiment in both serving group needs and protecting individual liberty. Your question, therefore, eliminates those who prefer a different form of governance than the American one.
It doesn’t, the question remains where is the Court of Competent Jurisdiction that addresses the issue of the United States intentional participation in the overthrow of the recognized Sovergein Nation of Hawaii? Also, is there a process for redress under U.S. or International Law?
Sam Kalama says
Of course there is a need to have a treaty since the method by which the US government “took” Hawaii is null & void. A Joint Resolution can’t be used to acquire new territory within another country. Hawai’i was a recognized country at the time of the overthrow. Under international law, the acquisition was illegal. I’m no expert though. There’s a site that has all the facts about this particular issue. It’s HawaiianKingdom.org
To answer your question, article 2 section 2 of the U.S. constitution requires a treaty be ratified by 2/3 senate vote. Also, treaties are required to annex territory by international law. A domestic law of the U.S. is limited to U.S. territory. Otherwise U.S. congress could pass a joint resolution saying they are annexing England or France…sounds like nonsense right? Well that’s exactly what they did to Hawaii.
Peter T Young says
Thanks for weighing in. Article 2, Section 2 says “The President … shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur”.
It does not say that is the only way territories my be annexed to the US. It was not a hostile or unannounced takeover (as your scenario with England or France suggests); the Republic of Hawaii supported annexation and voted (unanimously) for such.
On June 15, 1898, the Newlands resolution passed the House by a vote of 209 to 91; the vote on the Newlands Resolution in the Senate was 42 to 21 (2/3 of the votes by Senators were in favor of the resolution, a significantly greater margin was cast by Representatives in the House.)
Where does it say (in 1898) that Article 2, Section 2 is the only way territories may be annexed to the US? (That was the question.)