Is it illegal to be Hawaiian?
Yes is the short answer.
The long answer goes at least back to the Papal Bulls and the nature of human beings to justify their actions. My understanding has been an evolving process and because people feel a need to justify their behavior, no matter how immoral or reprehensible, we have some chance for peace.
Why did the Europeans of the fifteenth century and Pope Nicholas V feel the need to create a Papal bull that justified the taking possession of land and the human beings of “newly discovered lands”? Why not just say “we do not care who’s there and it becomes ours because we can enforce the taking with military force”?
I believe the first aim was to settle claims of newly discovered lands between the military powers of their day. This also served to prevent challenges to claims by one European power aligning with an original nations people against the claims of an others conquest. More interesting to me is the habit of Anglo-European cultures need to assign status to all things in nature. I believe this comes from a Biblical notion of man having dominion over all things created by God on earth. This created a concept that nature described by plants, animals, land, water and air remained in service to man, western man.
So it follows that to categorize people who could be separated by skin color, language, culture, Gods and basically being unknown to them, creating dominion over them. Original nations people got put into the animal category and so slavery was legitimized. It was a small thing to decide back in the 1493 when the Pope granted Spain all land south and west of the Azores. This included its people as slaves and all their rights to lands they held.
Another way to look at this is to remove the Papal bulls and the doctrine of discovering. If we look across the ocean from Spain; what do we see?
I see many nations of many different people, occupying lands of their ancestors from the beginning of time. I concede their were struggles among those nations and it was not a perfect life free from internal conquest. What it wasn’t was Terra Nullius [unclaimed land] or an unconcerned limited use of land, [Nomadic claims] opening it up to anyone who would use the abandoned interest [there was no abandoned interest].
If I sounds like I am a legal person I am not, but there is a legal basis here being created and used to this day. The doctrine of discovery is alive and well, not just in 1823 Johnson v. M’Intosh that ruled “Native Americans” do not have title to their lands. “The Court determined that the United States government had acquired free title to the land based on the longstanding practices of European colonization”. The doctrine of discover is the basis for all American-European titles claims west of the Azores.
So it is infused in the fundamental laws of the European-American legal system. Some of us who have been involved in the United Nations declaration of rights of Indigenous people realize that this is an effort to change these long ceded legal premises. I have a problem with the basic approach to having countries sign the treaty in its present form. We apply these new understandings on top of existing precedence. I simply do not believe we can trump “stare decisis” [settled law] and change any legal outcomes in their courts. There are to many ways to ignore the rights contained within the declaration or for countries to interpret the language to continue to enforce the doctrine of discovery.
And that is exactly what I see is the continued enforcement of this doctrine, using the courts and legislatures to continually back up theft and piracy.
Coming home to Hawaii we have an interesting history and when Captain James Cook came to visit in 1778 many things were not unknown to us. Metal, Europeans, Japan, Incas, navigation, China and basically the Pacific continent of water was our home and familiar to us. Yes I said Europeans! There was archaeological evidence of a Spanish ship in Hawaii predating Cook’s arrival.
What was also known to us was our form of ownership of land and nationhood. Captain Cook was on a mission of Discovery, ironically and not on one of conquest. The results of this approach was to identify the legal standing of the Hawaiian nation apart and separate from the doctrine of discovery and created legal parity with the European-America nations.
It was this contract by treaties [1836, 1843] between Hawaiian and Great Britain that colors the history to follow. Hawaiians had equal footing and we see this born out when a rogue English Captain seized Hawaii. Lord George Paulet took possession of Hawaii by force in 1843 and King Kamehameha III appealed to England to enforce their treaty of friendship. The English government sent Admiral Thomas who immediately restored control to the Hawaiian civil authorities.
Same like white people! Our rights were identified and respected in law. It is this fundamental difference for so called pagan people and that created a problem for the aims of manifest destiny having hit the pacific ocean in California.
No longer could the Americans use the idea of common European colonization techniques to claim other nations assets. They did find a useful tool in war, but before that they tried conspiracy.
From the SCOTUS opinion J. Alito 2009
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 Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.” Rice v. Cayetano,…“That government sought annexation by the United States,” id., at 505, which the United States granted, see Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, No. 55, 30 Stat. 750 (here in after Newlands Resolution). Pursuant to the Newlands Resolution, the Republic of Hawaii “cede[d] absolutely and without re serve 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…
I use this legal description of the events that lead to the occupation of the Hawaiian Kingdom to make a point. The United States was bound to domestic and international law. Ratified treaties between the US and any other nation are the supreme law of the land. So how could the Americans take possession of Hawaii and make a legal justification for the theft? We go back to the need to justify actions no matter how immoral. Perhaps they hoped the Hawaiians would declare war as a result of the provocation, they did not.
Lili’uokalani, the reigning monarch at the time did a very interesting thing, she yielded her authority to the US until it investigated the crime and would restore the treaty breech. In effect she delivered a writ of Habeas corpus for her people and her nation. We know by the evidence that she was restored to power after the findings of the Blount report, which exposed the conspiracy. We see her restoration to her office in the negotiations for the lives of the traitors. [Dole, Thurston and his cronies]. The American representatives address her as the sovereign authority.
The Americans never removed their troops and has had a military presence for 117 years. The Spanish American war in 1898 became the excuse for annexing the “Republic of Hawaii” and that was decided on the US right to hold Pearl harbor [Manifest destiny turned into rights]. They have been trying to justify this behavior for the same amount of time and have vigorously sought a legal basis for colonizing Hawaii.
What we read above is that the “Republic of Hawaii” sought annexation. What was the “Republic” other than a piratical group of traitors claiming falsely to be the Hawaiian Kingdom. What did the “Republic” have possession of? The military had possession of the country, but that was not a government, anymore than the US can claim to be the Iraqi or Afghan governments. What we see happened is the US annexed the pirate government of maybe 3000 people.
So what follows in the next 117 years is a legal slight of hand to disenfranchise the rights and claims of the Hawaiian people. Handicapped by US Supreme court rulings in the early territorial days [Damon V Hawaii, Pa Pelekane 21 Haw 175] which upheld Hawaiian land claims, the State passed illegal legislation and relied on judicial misconduct. The United States in annexation only claimed an interest in public rights associated with the Hawaiian Kingdom, but not personal rights or vested rights, they were to be enforced. This was a big problem for those who sought to steal the land, since almost all the land in Hawaii was alodial or inalienable. The Hawaiian living owners only have a use interest in land and can not sell it even if they wanted to, based on the real owners being the future generations.
The Territory of Hawaii and then the State of Hawaii  can not in a sense enter the Hawaiian Kingdom or change its laws. The Hawaiian Kingdom it still exists in law and its living people. [see: Dr. Mathew Craven “The Continuity of the Hawaiian Kingdom] So somewhere along the line those Hawaiian subjects where stolen, not unlike the Amistad case 1839, where a free persons were put into slavery. The Hawaiians were not taken and put on a ship to go to a foreign country to serve as slaves, their country was removed from under them. We know that even up to 1959 many Hawaiians were not American citizens and could not even vote in the statehood plebiscite. In 1993 the Americans passed an apology law that stated.
Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum;
As a result of this law the State of Hawaii seems compelled to create a criminal status to asserting what is common knowledge, that Hawaiians are not Americans!
Can a Hawaiian subject forced into an American court, notify the officers of that court, who they are? Apparently not!
Government officials of Aupuni Hawaii [Hawaiian Government] have appeared in many trials in the State of Hawaii to preserve their subjects rights. Sometimes we even get to testify and yet the basic understanding of Hawaiian law or even US law is not present.
One of our subjects being told by the judge she can not claim Hawaiian citizenship replied:
“You should be careful God is watching you!”
She was summarily put in jail for 4 days, incommunicado, for threatening the court. We have always had language problems with the State of Hawaii.
One of our subjects informed the court in a letter as to who he was, a subject of the Hawaiian King. The court ruled it as a motion and denied him the right to mention this fact to the jury or the court. The prosecutor made a motion to the court that he was either “Crazy of stupid to think he was a Hawaiian subject” When the judge asked him if he had any questions for the potential jurors he responded “I am sorry judge you have ordered me not to defend myself so I can not proceed” This trial in which he defended himself pro-se ended in a mistrial.
In a following trial he was charged with leaving a valentines card in his wife’s car, in violation of a State restraining order, two weeks from expiration. He was ordered by the judge to accept a lawyer who refused to assert who he was and address jurisdiction of the case.. Expressed by- I am a Hawaiian subject and I live in my own country and I never go to the State of Hawaii. You have no jurisdiction to prosecute me”
He then posted a note on the court’s bulletin board: After posting his name it said I am a Hawaiian Subject and I live in the Hawaiian Kingdom. The judge threw him in jail without bail and incommunicado until she discovered he had broken no law four days later.
You can take offense to their actions or your can understand that the Judge owns property in the State and her employer, power, position rely on the legitimacy of what happened in 1898. Those officials of the State have no choice but to seek out legal relief for themselves. Our friend was offered 48 hours after his conviction by the prosecutor and he refused wanting to appeal the conviction, He got 16 years.
His attorney has refused to appeal his case.
This is part of a pattern we have seen in the courts of maximum penalties doled out to anyone who claims rights to their citizenship in their nation. For all intensive purposes it is illegal in America to state you are Hawaiian. Most State courts will order defendants not to mention or use the defense of their nationality at trial. We know also that the Supreme Court of the State of Hawaii has ordered all attorneys who practice in Hawaii not use Hawaiian Kingdom defenses, If they do they will be sanctioned [$5000] or possible disbarment.
I would also note that we have been refused help from many organizations alleged to be organized to help us. Earth Justice, Amnesty International, Columbia Law School Human Rights Center, Cyrus Vance Justice Center, New York Bar association, Native American Rights Fund, ACLU, Southern Poverty Law Center, etc…
The colonial mind still needs to justify oppression and this gives me hope that somehow when those justifications are clearly understood for what they are, we can begin the honest process of righting the wrongs. If the Hawaiian model, which leaves no excuse of understanding of our independence and human rights can not be restored, than the world must question the foundation of this occupying nation, America! We in Hawaii, by our constitutional mandate, work for peace.