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What Are the ‘Returned Lands’ of Hawaii?

By Jere Krischel

In an article titled “What are the ‘Ceded Lands’ of Hawaii?” written for Honolulu Civil Beat on 11/08/2010, Professor Van Dyke makes some critical errors in his assessment of both the history and the law.  While acknowledging the Supreme Court’s rejection of the “Apology Resolution,” he still relies on it for his “legal” justification.  While quoting from the Admissions Act of 1959, he omits a key clause that differentiates between “should” and “can.”  But most problematically, Van Dyke intimates that “Native Hawaiians” were somehow legally separate during the Kingdom period in Hawaii, and that the public lands that were returned to the State of Hawaii have some sort of racial lien on them.

The first red flag we should recognize in Van Dyke’s writing is the use of quotes around the term “illegal.”  In order for something to be illegal, we must have several things – a concrete body of law which was violated, a judiciary to arbitrate the dispute, and finally, a finding after a trial presenting both sides of the issue.  Without these necessary requirements, we are substituting personal opinion for legal fact.  Although PL103-150 (aka “The Apology Resolution”) uses the term “illegal” several times in describing the Hawaiian Revolution, it does not identify any specific law which was violated, any judiciary with jurisdiction over the Hawaiian Revolution of 1893, nor any trial which was conducted to determine guilt or innocence.

So can the “Apology Resolution” unilaterally declare the Hawaiian Revolution of 1893 illegal?  Absolutely not.  Ex post facto laws are explicitly forbidden by the U.S. Constitution –  one cannot simply pass a law which declares someone’s prior actions illegal.  Neither does the legislature have the authority to declare someone guilty as a matter of legal fact.  In recognition of this and the basic principles of statutory construction, the Supreme Court on March 31, 2009 firmly established that the “Apology Resolution” had no legally binding effect, stating that the “‘whereas’ clauses cannot bear the weight that the lower court placed on them.”

The second major mistake Van Dyke makes is a subtle, but important distinction between something that is necessary, and something that is allowable.  Van Dyke states that the 1959 Admissions Act demanded that “revenues from these lands should be used” for native Hawaiians.  This is a misread of the Admissions Act, which provided limits on what the revenues could be used for, not mandates.  The specific text of the Admissions Act reads, “such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes…their use for any other object shall constitute a breach of trust…”

This means that the State of Hawaii could spend every penny on public education, and not a dime on the development of farm and home ownership.  Or, it could decide to spend everything on public improvements and provisions for public use of the lands, while not funding anything else.  Any combination of “one or more” would be legal according to the Admissions Act.  The only two things that would be a breach of trust would be to spend none of the revenue at all, or spend any of the revenue on a non-permissible use, such as supporting private schools, or the development of automobile ownership.

With his words Van Dyke echoes a misinterpretation of the Admissions Act that OHA has been intentionally cultivating for many years, using it to justify a 20% share of revenue from the public lands of the State of Hawaii to native Hawaiians (although OHA specifically ignores the blood quantum definition used in the Admissions Act).  By their rationale, exactly 20% should be allocated to farm and home ownership, exactly 20% should be allocated to public schools, exactly 20% should be allocated for public improvements, and the last 20% should be allocated to make public lands available for public use.  But the Admissions Act, as plainly read, has no such mandate whatsoever.

The most insidious misrepresentation Van Dyke makes, however, is regarding the citizenry of the Kingdom of Hawaii, and the chain of ownership of the ‘ceded’ lands.

From its inception, the Kingdom of Hawaii was a multi-racial nation.  High Chief Olohana, otherwise known as John Young, fought beside Kamehameha the Great to establish the unified Kingdom, and was the grandfather of Queen Emma herself.  The first constitution of the Kingdom of Hawaii in 1840 stated boldly that all people were “of one blood,” and established equality between all races over 100 years before the modern civil rights movement in the United States.  Characterizing the Crown Lands or Government Lands of the Kingdom of Hawaii as being dedicated to only one race is a desecration of both the spirit and the laws of the Kingdom from which they came.

With his synopsis, Van Dyke perpetuates the fiction that the ‘Ceded Lands’ are still ‘ceded.’  But the truth is, they are now more properly called  the ‘Returned Lands.’  The Crown Lands and Government Lands of the Kingdom of Hawaii were consolidated into the Public Lands of the Republic of Hawaii in 1894.  These public lands (about 1.8 million acres) became the ‘Ceded Lands’ in 1898, when the Republic ceded them to the United States on the condition that the revenues and proceeds, except for the parts used for the civil, military or naval purposes of the U.S., “shall be used solely for the benefit of the inhabitants of the Hawaiian Islands.”  Van Dyke acknowledges that this created a “special trust”, but he carefully omits that the ‘Ceded Lands’ Trust was established for all the inhabitants of the Hawaiian Islands, not just for those of a specific ancestry.

When the Territory of Hawaii was established in 1900 by the Organic Act, it reiterated that the public lands were acquired by the United States in “absolute fee” under the Annexation Act, free from “all claim of any nature whatsoever.”  These ‘Ceded Lands’ finally became the ‘Returned Lands’, when the lands were returned to the public of the State of Hawaii as per the Admissions Act of 1959.  The circle was finally complete – what had originally been the public lands of all the people of the Kingdom of Hawaii, became the public lands of all the people of the State of Hawaii.

Placing exclusive racial claims upon the ‘Returned Lands’ is an abuse of the trust placed in the State of Hawaii, and a violation of our Constitutional guarantees of equal protection.  No matter how many times these false claims are repeated, and no matter how many myths are invented to justify such race-based distinctions, they will never become true, and will never be justified.  All of the inhabitants of Hawaii, regardless of ancestry, have a powerful claim to the ‘Returned Lands,’ as clearly demanded by the Organic Act and the legacy of the multi-racial Kingdom of Hawaii.

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Book review of Jon Van Dyke “Who Owns the Crown Lands of Hawaii?”

Book review by attorney Paul M. Sullivan, published in UH Law Review:

http://tinyurl.com/ctbopx

Sullivan’s book review in the context of other materials about the ceded lands and the recent Supreme Court decision:

http://tinyurl.com/chbkpx

Cato Institute: The One-Drop Rule in Hawaii? The Akaka Bill and the Future of Race-Based Government (Capitol Hill Briefing)

Cato Institute: The One-Drop Rule in Hawaii? The Akaka Bill and the Future of Race-Based Government (Capitol Hill Briefing)

The power point presentation in PDF format of Jere Krischel’s presentation is available here.

Recognition of the Republic of Hawaii – Japan

The Hawaiian revolution took place on January 17, 1893. Within two days all the nations having local consuls in Honolulu gave letters of de facto recognition to President Sanford B. Dole of the Provisional Government. Those letters were published in the Honolulu newspapers, and can also be found in the Morgan Report of the U.S. Senate Committee on Foreign Affairs in February 1894; see Diplomatic Recognition of the Provisional Government.

Mr. Suburo Fujii, Agent and Consul General of Japan, sent a letter of de facto recognition, in English language, to Hawaii President Dole, dated January 19, 1893. Apparently the Japanese consulate continued the same level of relations with the Provisional Government, and later the Republic, as it had maintained with the Kingdom. It is unclear whether the subsequent establishment of the Republic resulted in a formal letter of recognition de jure like the ones given by at least nineteen other nations. No such letter can be found in the archives of the State of Hawaii. But it would be surprising if Japan had failed to recognize the Republic, because there were tens of thousands of Japanese nationals working as contract laborers on Hawaii’s sugar plantations at the time of the revolution, and there was no break in further arrivals.

Ken Conklin contacted Ms. Harumi Katsumata, Consul, Consulate-General of Japan in Hawaii, inquiring whether there might be a record of diplomatic recognition of the Republic either in the files of the Japanese Consulate in Honolulu or in the foreign affairs archives in Tokyo. Following a period of several weeks for research, Consul Katsumata sent an e-mail stating that there is no information about Japan’s recognition of the Republic of Hawaii, either in Honolulu or in Tokyo. However, she did attach a photograph (shown below) of a notice published by the Republic of Hawaii Foreign Office on April 24, 1897. The notice announced that the Consulate of Japan was being upgraded to the status of Legation and that the Consul currently serving at that time would continue to represent Japan. The published notice included the full text of an “autograph letter of His Majesty the Emperor” to President Dole, announcing the upgrade of status, bearing the manual seal of the Empire and countersigned by the Minister of Foreign Affairs.

Thus it is clear that until April 24, 1897 the Republic enjoyed the same level of diplomatic relations with Japan that the Kingdom had previously enjoyed; and after that date Japan granted even higher status to the Republic by upgrading its Consulate to a Legation. The wording of the Emperor’s letter to President Dole is very similar to the wording of the letters of recognition de jure that had been sent by other Emperors, Kings, Queens, and Presidents.

In March of 1881 King Kalakaua had visited the Meiji Emperor of Japan (Mutsuhito) on his trip around the world, and awarded to the Emperor the highest Royal Order of the Hawaiian Kingdom — the Grand Cross of the Royal Order of Kamehameha with collar.  Thus it is especially poignant when that same Emperor personally signs a letter to Hawaii President Sanford Dole raising the status of Japan’s diplomatic representation from consulate to legation.  The Emperor was giving high status to the Republic — a revolutionary government which had overthrown a fellow monarchy which had previously awarded the Emperor its highest honor.

 

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Recognition of the Republic of Hawaii – United States

See also: International Recognition of the Republic of Hawaii

U.S. President Grover Cleveland personally signed an official letter giving full diplomatic recognition to the Republic of Hawaii.

Unfortunately the original signed and sealed copy of that letter cannot be found in the Archives of the State of Hawaii. However, there are several other letters in the archives signed by officials of the U.S. and Hawaii proving that Grover Cleveland’s original signed and sealed letter was in fact delivered to President Dole by appointment at a meeting of the Executive Council of the Republic of Hawaii.

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Recognition of the Republic of Hawaii – Switzerland

See also: International Recognition of the Republic of Hawaii

Original of a two-page letter from Switzerland, in French, dated September 11, 1894, to President Sanford B. Dole, recognizing the Republic of Hawaii. The letter was signed by the Swiss federal counsel [Attorney General] on behalf of the President of the Swiss Confederation, and also countersigned by the Chancellor of the Swiss Confederation. The Swiss Foreign Minister [Secretary of State] also sent a cover letter to his Hawaiian counterpart (Minister of Foreign Affairs Francis M. Hatch) to accompany the letter to President Dole. No English translations have survived.

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Recognition of the Republic of Hawaii – Spain

See also: International Recognition of the Republic of Hawaii

Don Alfonso XIII, King of Spain, and Dona Maria Christina, Regent Queen of Spain, both personally signed a joint one-page letter in Spanish to Sanford B. Dole on November 26, 1894, recognizing the Republic of Hawaii. There was a one-page English translation. The Foreign Ministry of Spain sent an accompanying two-page cover letter in Spanish to Hawaiian Minister of Foreign Affairs Francis M. Hatch, for which no English translation survives.

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Recognition of the Republic of Hawaii – Russia

See also: International Recognition of the Republic of Hawaii

Tsar Alexander III of Russia personally signed a letter to President Dole, in Russian, dated August 26, 1894, recognizing the Republic of Hawaii. There is a two-page translation into French, but no English translation.

In 1883 Tsar Alexander III had his coronation.  That ceremony was attended by Col. Curtis P. Iaukea, who was sent by King Kalakaua as envoy extraordinary and minister plenipotentiary.  On orders of the King, Minister Iaukea presented to Tsar Alexander III the highest Royal Order of the Hawaiian Kingdom — the Grand Cross of the Royal Order of Kamehameha with collar.  Thus it is an especially powerful diplomatic statement when that same Tsar personally signs a letter to Hawaii President Sanford Dole granting recognition de jure to the Republic as the rightful government of Hawaii — a revolutionary Republic which had overthrown the Tsar’s fellow monarch, Queen Liliuokalani, who was Kalakaua’s sister.

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Recognition of the Republic of Hawaii – Portugal

See also: International Recognition of the Republic of Hawaii

Dom Carlos I, King of Portugal (and ruler and conqueror of many other places which he lists), personally signed a one-page letter, in Portuguese, to Sanford B. Dole, dated December 17, 1894, recognizing the Republic of Hawaii. The date is written out in words at the end of the letter just above his signature. No English translation survives.

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Recognition of the Republic of Hawaii – Peru

See also: International Recognition of the Republic of Hawaii

Andres A. Caceres, Constitutional President of the Republic of Peru, personally signed a two-page letter to Sanford B. Dole, dated September 10, 1894, recognizing the Republic. The Minister of Foreign affairs sent an accompanying letter.

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