“There is no provision in the 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.” (George Sutherland, Constitutional Power and World Affairs (1919))
“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)
“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)
Some suggest that Hawai‘i was never annexed to the United States and, as proof, refer to the October 4, 1988 Office of Legal Counsel of the Department of Justice Opinion and a subsequent (March 12, 2000) Op-Ed by Steven Newcomb in the Advertiser to support their conclusion.
Some even go as far as adding a quote – “US never legally annexed Hawai‘i” – inferring that the Office of Legal Counsel Opinion notes same. (That was the heading on Newcomb’s Op-Ed and apparently his opinion, not the Department of Justice’s.)
In fact, the Office of Legal Counsel Opinion makes the definitive statement, “The United States also annexed Hawai‘i by joint resolution in 1898. Joint Res. 55, 30 Stat. 750 (1898). Again, the Senate had already rejected an annexation treaty, this one negotiated by President McKinley with Hawaii.”
“And again, Congress then considered a measure to annex the land by joint resolution. Indeed, Congress acted in explicit reliance on the procedure followed for the acquisition of Texas.”
Before we get far ahead of ourselves, we should first look at the noted Office of Legal Counsel Opinion and its purpose. While some would have you believe it was an opinion addressing Hawai‘i annexation, in fact, that Opinion was prepared to address “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea”.
The Opinion clearly notes on its first page, under Introduction and Summary, that “This responds to the requests, made by your Office (State Department) and an inter-agency working group, for analysis of the constitutional and statutory questions raised by a proposed presidential proclamation to extend the territorial sea of the United States from its present breadth of three miles to twelve miles.”
The Opinion was not about Hawai‘i, nor its annexation – in fact, of the 26-pages of the Opinion (not counting appendices,) only 2-pages referenced the process of annexation of Hawai‘i. And Hawai‘i and its annexation to the US are not even mentioned in the Opinion’s Conclusion.
It does note, however, “(t)he constitutionality of the annexation of Hawai‘i, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act.”
“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.”
“The stated justification for the joint resolution – the previous acquisition of Texas – simply ignores the reliance the 1845 Congress placed on its power to admit new states. It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.”
“Accordingly, it is doubtful that the acquisition of Hawai‘i can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.” (Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, October 4, 1988)
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)
“Whether the Republic is a government de facto or dejure it is entitled to American sympathy, and when it has been recognized, successively, by the United States and all other powers, first, as a government de facto and then as a rightful government, republican in form, and is in a successful career of constitutional authority, our national obligations and all our better sentiments compel us to admit its full power and authority to dispose of any question that concerns its sovereign will and the welfare of its people.”
“If it is true, as some rashly venture to assert, that the United States minister at Hawai‘i and the commander of the warship Boston, in violation of our international duty, assisted a band of revolutionists to depose the queen and to usurp the government of the islands …”
“… it is also true that President Harrison recognized that de facto and provisional government as having the rightful sovereignty in Hawaii, in so far that it could conclude a treaty of annexation with the United States, and such a treaty was duly signed and sent to the Senate.”
“Then President Cleveland, when he came into power, sent Mr Blount as his special commissioner and accredited him to President Dole as the representative of the sovereignty of Hawaii. If he, or those in the Senate who still suffer from the pangs and compunctions of conscience which he is supposed to have felt when he recognized President Dole had then renounced the actions of Minister Stevens and Captain Wiltse …”
“… and if Mr Cleveland had sent a minister to Lili‘uokalani as the rightful sovereign, they would have fully established the sincerity of their objections and would have shown ‘the courage of their convictions.’”
“But, instead of observing that logical course, they sent Mr Willis as minister to Hawai‘i and accredited him to President Dole as the chief executive of Hawai‘i.”
“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)
“Now, after the lapse of five years, it is urged that the Republic is a usurping government; that it is a fraud contrived for the personal advantage of its promoters, and that Lili‘uokalani is still the rightful queen of Hawai‘i….”
“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)
“This act also establishes the fact that a treaty with a foreign State which declares the consent of such State to be annexed to the United States, although it is rejected by the Senate of the United States, is a sufficient expression and authentication of the consent of such foreign State to authorize Congress to enact a law providing for annexation …”
“… which, when complied with, is effectual without further legislation to merge the sovereignty of such independent State into a new and different relation to the United States and toward its own people.” (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.” (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.) (US Secretary of State Sherman, June 15, 1897)
And, as noted in the purported document that is inferred to suggest “US never legally annexed Hawai‘i” – inferring that the Opinion notes same – it does not; that document states, “The United States also annexed Hawai‘i by joint resolution in 1898.” (Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, October 4, 1988)
Click Here to read the DOJ Opinion for yourself.
Click Here to read Newcomb’s Op-Ed.
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