Images of Old Hawaiʻi

by Peter T Young Leave a Comment

He ‘Ōlelo Lokomaikai

For a while the Islands were under the rule of the British commission set up by Lord George Paulet. Queen Victoria, on learning these activities, immediately sent an envoy to the islands to restore sovereignty to its rightful rulers. Finally, Admiral Richard Thomas arrived in the Islands on July 26, 1843 to restore the kingdom to Kamehameha III.

Then, on July 31, 1843, Thomas declared the end of the Provisional Cession and recognized Kamehameha III as King of the Hawaiian Islands and the Islands to be independent and sovereign; the Hawaiian flag was raised.

This event is referred to as Ka La Hoʻihoʻi Ea, Sovereignty Restoration Day, and it is celebrated each year in the approximate site of the 1843 ceremonies, Thomas Square.

“After five months of embarrassment and suffering under the misrule of the new powers the 31st of July opened a brighter scene”. (Bingham)

“On the 31st of July, a treaty of peace, providing for friendly intercourse between the Islanders and the subjects of Great Britain, was signed by the king of the Islands, Kamehameha, and the British admiral Thomas.”

“A parade of several hundred English marines appeared on the plain of Honolulu with their officers, their banners waving proudly, and their arms glittering in the sunbeams.”

“Admiral Thomas and the suspended king proceeded thither in a carriage, attended by the chiefs and a vast multitude of the people, who formed a line parallel with the troops.”

“The English standard bearers advanced towards his majesty, their flags bowed gracefully, and a broad, beautiful Hawaiian banner, exhibiting a crown and olive branch, was unfurled over the head of the king and his attending chieftains …”

“… which was saluted by the English troops with field pieces, then by the guns of the Carysfort, whose yards were manned in homage to the restored sovereign.”

“Then succeeded the roar of the guns of the fort, Punch-bowl Battery, the admiral’s ship, Dublin, the United States’ ship, Boston, and others. The day was a day of rejoicing and congratulations, enhanced by the issuing of the following edict:” (Bingham)

“He Olelo Lokomaikai
Act of Grace”

“Accorded by His Majesty King Kamehameha III, by and with the advice of his Chiefs in Council, to all his Subjects upon the occasion of his resuming the reins of Government.”

“WHEREAS certain difficulties and apparent misunderstandings have recently arisen between Us and the Government of Great Britain, in the course of which some of our Subjects, subsequent to our Provisional Cession of the Sovereignty of the Islands to Great Britain …”

“… and up to the period when we resumed the exercise of our Kingly Power, have accepted office, and otherwise performed acts not so required to do by Us, or our duly constituted Authorities. And, whereas, certain persons have been imprisoned within the time abovementioned not by our Authority,”

“WE, anxious to express our Gratitude to God, and to give the fullest proof of our attachment to the English Nation, and to manifest our joy at the Restoration of our National Flag, hereby Proclaim,”

“First, That none of our Subjects shall be punished by our Authority, for any act committed by them or any of them to the injury of our Government between the 25th of February, 1843, and the date hereof.”

“Second, That all prisoners of every description, from Hawaiʻi to Niʻihau, be immediately discharged.”

“Third, All Government business will be suspended for ten days after this date, that all persons may be free to enjoy themselves in the festivities and rejoicings appropriate to the occasion.”

“Given at Honolulu, Oahu, Island of Oahu, this thirty-first day of July, 1843.”

“(Signed,) Kamehameha III
(Signed,) Kekāuluohi”

“The king and chiefs repaired to the stone meetinghouse (Kawaiahaʻo Church) to offer public thanks for the singular interposition of Providence in favor of the nation. The king made a short address …”

“… stating that according to the hope expressed by him when he ceded the islands, ‘the life of the land’ had been restored to him; that now, they, the people of his islands, should look to him, and his rule over them should be exercised according to the constitution and laws.”

“This address was followed by the interpretation of the declaration of Admiral Thomas; after which, John Ii (a counsellor and orator) delivered an animated address suited to the joyful occasion.”

“He referred to the gloom which had shrouded the nation, and the despondency which had brooded over many minds, but which were now dispelled, and succeeded by hope, and joy, and brightening prospects.”

“He referred to the auspicious event of the restoration as of the LORD, who had been mindful of the nation in its low estate, and as demanding from all, gratitude and praise.”

“The sentiments of the 126th Psalm apparently inspired his heart: “When the Lord turned again the captivity of Zion, we were like them that dream. Then was our mouth filled with laughter, and our tongue with singing. Then said they among the heathen, ‘The Lord hath done great things for them.’”

“What a contrast between this scene and that of a human sacrifice in a heathen temple, which the orator of the day once saw offered by his prince, Liholiho, and his father!”

“It affords pleasure to add here, the testimony of the American Board, ‘that the whole deportment of Admiral Thomas, while at the islands, towards the king and his people, and the mission, was of the most courteous and honorable character; and his example, counsels, and influence will long be gratefully remembered.’”

“The king being restored to the free use of his sovereignty under the constitution, and once more regarding himself as the head of the people, took the lead again by example and influence, and by such means as were in his power, to favor the cause of temperance and order.” (Bingham)

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Hawaiian Flag - 1816-1845
Hawaiian Flag – 1816-1845

by Peter T Young Leave a Comment

The Apology & the Supreme Court

On March 31, 2009, the Supreme Court of the United States reversed the Hawaiʻi Supreme Court and rendered a decision on a case between the State of Hawaiʻi and OHA relating to the transfer of ceded lands.

In that decision, the US Supreme Court discusses the 1993 ‘Apology’ Resolution, as well as makes references to Hawaiian Sovereignty. The following are quotes from the US Supreme Court decision:

“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).”

“Pursuant to the Newlands Resolution, the Republic of Hawai‘i ‘cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind’ and further ‘cede[d] and transfer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining’ (hereinafter ceded lands).”

“The Newlands Resolution further provided that all ‘property and rights’ in the ceded lands ‘are vested in the United States of America.’” “Two years later, Congress established a government for the Territory of Hawai‘i. … The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in ‘absolute fee’ under that resolution.”

“In 1959, Congress admitted Hawai‘i to the Union (hereinafter Admission Act). Under the Admission Act, with exceptions not relevant here, ‘the United States grant[ed] to the State of Hawai‘i, effective upon its admission into the Union, the United States’ title to all the public lands and other public property within the boundaries of the State of Hawai‘i, title to which is held by the United States immediately prior to its admission into the Union.’”

“Hawai‘i state law also authorizes the State to use or sell the ceded lands, provided the proceeds are held in trust for Hawaiian citizens. In 1993, Congress’ joint Apology Resolution “apologize[d]” for this country’s role in overthrowing the Hawaiian monarchy, and declared that nothing in the resolution was ‘intended to serve as a settlement of any claims against the United States.’”

“In 1993, Congress enacted a joint resolution ‘to acknowledge the historic significance of the illegal overthrow of the Kingdom of Hawai‘i, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawai‘i and the United Church of Christ with Native Hawaiians.’ Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawai‘i, … (hereinafter Apology Resolution).”

“Turning to the merits, we must decide whether the Apology Resolution ‘strips Hawai‘i of its sovereign authority to sell, exchange, or transfer’ the lands that the United States held in “absolute fee” and “grant[ed] to the State of Hawai‘i, effective upon its admission into the Union”. We conclude that the Apology Resolution has no such effect.”

“The Apology Resolution did not strip Hawai‘i of its sovereign authority to alienate the lands the United States held in absolute fee and granted to the State upon its admission to the Union.”

“The resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifically, Congress ‘acknowledge[d] the historical significance’ of the monarchy’s over-throw, ‘recognize[d] and commend[ed] efforts of reconciliation’ with native Hawaiians, ‘apologize[d] to [n]ative Hawaiians’ for the overthrow, ‘expresse[d] [Congress’s] commitment to acknowledge the ramifications of the overthrow,’ and ‘urge[d] the President … to also acknowledge [those]ramifications’.”

“Such terms are not the kind that Congress uses to create substantive rights – especially those that are enforceable against the cosovereign States.”

“The Apology Resolution’s second and final substantive provision is a disclaimer, which provides: ‘Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.’ By its terms, speaks only to those who may or may not have ‘claims against the United States.’”

“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.

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US-Congress-President-Clinton-Apology-Bill-Signing
US-Congress-President-Clinton-Apology-Bill-Signing

by Peter T Young 7 Comments

It’s About Nationality, Not Race

Today, we celebrate Ka La Hoʻihoʻi Ea, Sovereignty Restoration Day; it relates back to 1843 when Lord George Paulet, purportedly representing the British Crown, overstepped his bounds, landed sailors and marines, seized the government buildings in Honolulu and forced King Kamehameha III to cede the Hawaiian kingdom to Great Britain.

Queen Victoria, on learning the injustice done, immediately sent Rear Admiral Richard Darton Thomas to the islands to restore sovereignty to its rightful rulers. After five-months of occupation, on July 31, 1843, the Hawaiian flag was raised and sovereignty restored.

The ceremony was held in an area known as Kulaokahuʻa (The Plains;) the site of the ceremony was turned into a park, it was later called Thomas Square.

Today, there remain ongoing claims and discussions about restoring the Hawaiian Government that was deposed on January 17, 1893 and replaced by the Provisional Government of Hawaiʻi, later the Republic of Hawaiʻi, then annexation and statehood.

The Hawaiian nation was overthrown … not the Hawaiian race (it was a constitutional monarchy, not race-limited.)

Yet, to date, apparently, the only people permitted to exercise their rights related to discussions on restoration, reparation, sovereignty, independence, etc related to the Hawaiian nation have been those of one race, the native Hawaiians.

In the ongoing nation-building exercise, lately there was Kau Inoa (registration of Native Hawaiians in Hawaiʻi and abroad who will be a part of the new Hawaiian nation and receive benefits provided by the new government,) later Kanaʻiolowalu (registration on an Official Roll and joining together to rebuild a Hawaiian nation,) and now Na‘i Aupuni (who are guiding an election, convention and ratification process where Hawaiians who wish to participate can be heard.)

Kanaʻiolowalu limits participation to “lineal descendant[s] of the people who lived and exercised sovereignty in the Hawaiian islands prior to 1778”; a goal of the registration is “self-recognition of our unrelinquished sovereignty”. The latter and latest, suggests an ʻAha (“convention … gathering of elected delegates”) that may conduct a ratification vote.

Likewise, the Native Hawaiian Government Reorganization Act (Akaka Bill,) and groups like Ka Lāhui Hawaiʻi, Nation of Hawaiʻi, Ka Pakaukau, Poka Laenui, Hawaiian Kingdom, Hawaiian Kingdom Government and the rest seem to seek to restore or reclaim on behalf of kanaka maoli.

However, all Hawaiian citizens lost their nation in 1893 … Hawaiian citizens with their varying ethnicities, not just those who lived in the Islands prior to 1778.

Why aren’t all Hawaiian citizens included in the recognition and sovereignty discussions and decisions today?

Nationality derives from what nation you are from. It’s your citizenship. Another term for nationality is your political status. Race is not nationality. It’s not a political status. Race is your ethnicity. (Keanu Sai; noted in AlohaQuest)

Hawai‘i was built up of many racial ethnic extractions or heritage, but they all came under one nationality, called a Hawaiian citizen or subject. (Keanu Sai)

A Hawaiian citizen or subject is someone that has the political status of being a Hawaiian national. And it’s not limited to the native race or the aboriginal blood. (Keanu Sai)

If annexation did not happen, today descendants of Hawaiʻi-born or foreign-born naturalized Hawaiian citizens (with no proof of later naturalization to another nation) are still Hawaiian subjects, as their predecessors were in the Kingdom era. (Keanu Sai)

‘Nationality’ means the legal bond between a person and a State and does not indicate the person’s ethnic origin. Everyone has the right to a nationality. (European Convention on Nationality)

At one time, jus sanguinis (right of blood) was the sole means of determining nationality in Asia and Europe (where it is still widespread in Central and Eastern Europe.) An individual belonged to a family, a tribe or a people, not to a territory. It was a basic tenet of Roman law.

Jus soli (right of the soil,) also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state.

At times, exceptions limit citizenship, typically when a child was born to a parent in the diplomatic or consular service of another state, on a mission to the state in question or a child born to enemy forces engaged in hostile occupation of the country’s territory.

One of the earliest laws in Hawaiʻi dealt with citizenship; it was part of King Kamehameha III’s Statute Laws 1845-1846. The Chapter for that law was titled: “Of Subjects and Foreigners” and the specific Article was labeled “Aliens, Denizens and Natives.”

Section III of that law noted: 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. (Ka Huli Ao Digital Archives – Punawaiola-org)

Hawaiʻi followed the Anglo-American common law rule of “jus soli;” those born in the country and subject to its jurisdiction are citizens. Subsequent interpretation of the laws and practices affirmed who were Hawaiian citizens and what rights and obligations they possessed.

In 1850, HW Whitney, born in Hawaiʻi of foreign parents, asked the Minister of the Interior, John Young II, about his status. The question was referred to Asher B Bates, legal adviser to the Government, who replied that, “not only the Hawaiian Statutes but the Law of Nations, grant to an individual born under the Sovereignty of this Kingdom, an inalienable right, to all of the rights and privileges of a subject.” (Hanifin)

In 1856, the Kingdom’s Supreme Court decided Naone v. Thurston, recognizing that persons born in Hawaiʻi of foreign parents were Hawaiian subjects.

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.”

Subsequent laws through the Republic, Territory and State provide that “All persons born or naturalized in the Hawaiian Islands, and subject to the jurisdiction of the Republic, are citizens thereof.”

A lot of non-kanaka maoli were born in the Islands or became naturalized citizens, or are descendants of such. By laws and practice, they, too, are Hawaiian citizens … history and the laws related to Hawaiian citizen status are clear and unambiguous.

In 1893, all Hawaiian citizens lost their nation … Hawaiian citizens with varying ethnicities. As noted by Keanu Sai, “Hawai‘i was a country of laws and nationality and not necessarily a specific race.”

If there are to be discussions and decisions leading to restoration, reparation, sovereignty, independence, etc that affect all Hawaiian citizens, whatever their ethnicity, all should be included in that process.

Again, why aren’t all Hawaiian citizens included in these discussions and decisions, today?

I am sure these others will be heard from at some time – it would be better that they are included, sooner than later.

The image shows the Hawaiian Kingdom flag, ‘Ka Hae Hawaii’ as observed by Louis Choris in 1816. It flew over the Islands from 1816-1843.

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Hawaiian Flag - 1816-1845
Hawaiian Flag – 1816-1845