By Trustee Rowena Akana
August 28, 1995
The apology resolution signed by Congress and President Clinton directs the Federal government to come to terms with the “ramifications” of the overthrow of Queen Liliuokalani. Among those “ramifications” are questions of the ownership and management of the former Crown Lands. From the overthrow in 1893, until the recent opinion by state Attorney General Margery S. Bronster authorizing the sale of public trust lands, each new link of the chain binding title of the ceded lands to the State of Hawaii binds the state to a legal fiction. Attorney Hayden Aluli is right to warn “buyer beware,” for a variety of legal and historical reasons.
The 1893 overthrow broke an 1849 treaty of “perpetual peace and amity” between the United States and the Kingdom of Hawaii. The landing of 162 fully armed marines with field artillery by Minister Stevens violated article six of the United States constitution, which states that “treaties shall be supreme law of the land.” President Cleveland and leading members of his administration clearly recognized that the Provisional Government had no existence beyond that granted by Minister Stevens, acting in his official capacity. Secretary of State Gresham concluded that “the legitimate government was in full possession and control of the palace, the barracks and the police station” when Minister Stevens recognized the paper government of Sanford Dole and Lorrin Thurston.
Queen Liliuokalani yielded authority to the United States, not to the Provisional Government. Most likely, she anticipated a repeat of 1843 when the Hawaiian sovereign temporarily yielded power to an overzealous British representative, whose government firmly disavowed his actions immediately upon learning of them and reinstated the King to his full power. Because at no time did the Queen yield to the Provisional Government, the islands remained under the temporary jurisdiction of the United States, invalidating the claims of the Provisional Government that Federal orders to reinstate Queen Liliuokalani equalled an “inadmissible interference in the domestic affairs of Hawaii.”
The Republic of Hawaii never became sovereign either. In spite of feeble attempts to dress the Republic of Hawaii in the trappings on constitutional and democratic legitimacy, they never achieved a status of sovereign consistent with international law. When President Dole convened a Constitutional Convention in 1894, he took the precaution of personally appointing a majority of the 37 delegates by himself. Candidates for the remaining slots, as well as all voters, had to take an oath of allegiance to the Provisional Government and not to the Queen. Less than 20% of previously qualified voters bothered to participate in this election, indicating a far narrower base of popular support than that called for by international law.
A principle of international law know as the “unequal treaty doctrine” states that treaties imposed on weaker states by stronger ones with coercion and the threat of force are voidable according to international law, as defined in such documents as the Covenant of the League of Nations, the Charter of the United Nations and the Vienna Convention on the Law of Treaties. According to this idea, the Newlands Resolution annexing Hawaii is a violation of international law.
The Court of Claims ruled against Queen Liliuokalani in the case of Liliuokalani v. United States thwarting her attempt to recover the Crown Lands. If, as the court ruled, title to the ceded lands vested with the office of the sovereign and not with the person, then the highly suspect transfer of political power makes their title all the less secure, and would imply that the entire body of lands remain recoverable by a reinstated sovereign Hawaiian government.
The many legal and historical events listed above are just some of the reasons that title to the ceded lands remains highly clouded today. Even if, for the purposes of argument, the state is considered to hold secure title as trustees of the ceded lands, the history of the implementation of Public Land Trust responsibilities is not a happy one. Countless examples can be found of breach of the trust provisions laid out in the Newlands Resolution, the Organic Act, the Hawaiian Homes Commission Act, the Admission Act and the 1978 amendments to the State Constitution that came out of the Constitutional Convention.
We all know the unfortunate attitude of the executive branch towards ceded land entitlements and what a burden Governor Cayetano thinks they place on the state. A pending court case on the Leiali’i housing development near Lahaina will soon reveal the attitude of the judicial branch as well. We also know, from the introduction of Representative Say’s bill to end ceded land revenues to the Office of Hawaiian Affairs and from the early demise of two bills proposing a limited moratorium on the sale and lease of ceded lands, that the legislative branch is not too keen on entitlements either. The time has come for everyone interested in preserving the integrity of the ceded lands to urge their legislators to move a moratorium bill next year, until questions of legal title and the relationship of the lands to a future sovereign entity are finally settled.