An estimated 5,000 people marched down Kalākaua Avenue to protect ceded lands during the Jan. 17 Kū I Ka Pono march and rally. - Photo: Lisa Asato

A Ceded lands historical view

By Buzzy Agard

Editor's note: In light of the U.S. Supreme Court review of the ceded lands case, KWO is publishing in lieu of Letters to the Editor two commentaries on the issue – one is written by Megan Au, a graduate student at the University of Hawai'i at Mānoa's School of Hawaiian Knowledge, the other by Buzzy Agard, a well-known figure in the Hawaiian community.

First, the attorney general requests the U.S. Supreme Court reverse the Hawai'i Supreme Court ruling on ceded lands and that they can be sold or managed by the state. Then the Honolulu Advertiser reports on Dec. 6 that the second request is to give the state the status of ownership of the ceded lands and not only the management.

The second request also indicates that this contentious question should be satisfied by legislation. But the question has already been settled by legislation when the Congress in 1993 passed the Apology Bill, Public Law 103-150, enumerating all of the overreaching elements of the 1898 Hawai'i annexation.

Further, the U.S. Justice Department had already issued on Oct. 4, 1988, a memorandum to the U.S. State Department questioning under what law was Hawai'i annexed in 1898 because no law can be found for such activity.

Ten years later in 1998, after a nine-year investigation, a United Nations representative issued a statement published in the Honolulu Star-Bulletin that the purported annexation of Hawai'i was invalid.

Citing the Newlands Resolution as the authority to effect a valid annexation of Hawai'i is disingenuous and evasive. The only constitutional method is by a consensual treaty, and as noted in the Constitution, and not by a resolution intending to annex Hawai'i in 1898.

Why was Hawai'i annexed? One reason was the impetus or annexing of Johnston Island 700 miles southwest of Hawai'i by the British warship Champion in June of 1892, or a mere six months before the planned Hawai'i landing of armed troops from the U.S. Boston. (Telegrams from the battle cruiser Boston sent by Capt. Wiltse indicate that the Hawai'i residents favored the British over the Americans if there was a choice.)

A second reason to annex Hawai'i was the developing of the Spanish-American War. A war that Spain did not want to fight but was forced into because the U.S. battleship Maine was anchored in Havana, Cuba, bay on Feb. 16, 1898, when it terrifyingly blew up and ruptured its bottom plates and went to the bottom of the bay.

Spain was blamed for the incident and the calls from William Randolph Hearst of the Hearst newspapers to wage war caused the weak President McKinley to declare war and Commodore George Dewey's newer steel-clad American cruiser fleet of ships destroyed the older Spanish Armada of wooden ships. Decades later when an investigation was made of the Maine at rest where it sank it was found that the ship's steel plates blew outward and not inward like from a torpedo. The conclusion was that the ship's engine room boilers were too closely located to the fuel tanks and caused the explosion and sinking of the Maine. Later naval vessels had a correction made to the location of the engine room boilers, which increased their distance from the fuel tanks. Spain lost its colonies in this war and Hawai'i was annexed to fight this war and all wars thereafter. Curiously the cruiser Maine in "showing it colors," caused the Spanish-American War. (Chronicle of America, pages 518-519)

It is of interest that during the Civil War, Confederate ships would cruise the Caribbean and carry out raids against Union stations. After the Spanish-American War, Spain's colonies in the Caribbean came under victorious American influence. Cuba had a status and gave up parts of Cuba including Guantanamo, Puerto Rico was annexed but its populace did not vote for the president. Little Santo Domingo voted against joining the Union. And may serve as a future nation example for small independents like Hawai'i.

It is also of interest that during the 1898 congressional debates to annex Hawai'i, Gen. John Schofield was on the floor of Congress for hours to encourage annexing Hawai'i. Schofield had come to Hawai'i 26 years earlier in 1872 to survey Hawai'i for military purposes. Schofield's presence has ended in a large military barracks being named after him. Schofield was to testify, "We have pre-empted in Hawai'i and no nation will oppose us, but if we do not acquire title to those islands in the future we will have lost them forever." A question here is what was Schofield talking about, title to Hawai'i, when he made the warnings about Hawai'i on the floor of the Congress in the 1898 annexation debates as it relates to the present day.

During the proceedings to annex Hawai'i in 1898 a congressman in frustration was to say, "You are trying to do something illegally which you cannot do legally." After the two attempts had been made to annex Hawaii by treaty first in 1894, which failed, and then again in 1897, which also failed. Then the Newlands Resolution was introduced as how Texas joined the Union in 1845 as an example that should be followed. But Texas was also a required contiguous state and its electorate had agreed and ratified the annexation. Whereas the Hawai'i electorate had opposed annexation by a giant 38,000-signature petition in 1897 and had it served on President McKinley. Incoming president Grover Cleveland withdrew this second treaty from consideration and Lili'uokalani's restoration due to an act of war caused by the landing of armed troops in Hawai'i and also called for reparations. Hawai'i was a peaceful neutral nation and did not threaten any other nation.

The U.S. Justice memo of Oct. 4, 1988, appears to refer to this history of no apparent annexation or legal conveyance of ceded lands. But this action also raises the question of what was the Republic of Hawai'i, which received $3.8 million in a like sale of Hawai'i.

The Republic of Hawai'i had no treaties with any nations large or small. Nor did it have more than 90 consulates and embassies worldwide like Hawai'i had and its legitimacy is suspect. Neither did the Republic send young people worldwide to study diplomacy and governmental procedures. What was the Republic of Hawai'i, a name only?

After the 1893 intervention and landing of armed troops there followed in 1894 the declaring of the Republic of Hawai'i on the Fourth of July 1894 on a date surely to be celebrated as a day of independence and an American holiday. Then the Republic combined in 1895 the Crown and Government lands as Public Lands of 2.6 million acres but ceded only 1.8 million acres to the U.S. in the 1898 annexation. What happened to the difference between 2.6 million and 1.8 million, or 800,000 acres, in addition to the $3.8 million dollars paid the Republic to operate its government? Was the Republic acting as an accessory-after-the-fact or a collaborator? Monetary benefits paid to the Republic was to the wrong recipient, as the Republic had nothing to give but in effect had quitclaimed the ceded lands to the U.S. for whatever interest the Republic might have claimed to have had. A state judge* has written an essay that points out that the Republic of Hawai'i did not have any authority to convey or the approval of the native stakeholders to cede their lands as their government had been disabled. Therefore no conveyance of title ever occurred, which is what the 1988 Justice memo appears to point out. *(See A Case for Reparations for Hawaiians, Karen N. Blondin)

After the 1893 intervention, all Hawai'i's treaties had been canceled by a third party who had not joined the treaty making but took the liberty to cancel all treaties existing between Hawai'i and some 20 nations without itself being a signatory to all those international treaties. It's of note that as the Reciprocity Treaty was redrafted in 1887, and that if the U.S. were to cancel that treaty, it would apparently have no further authority to access Pearl Harbor.

One hundred years after the 1898 Hawai'i annexation, in 1998, the United Nations after a nine-year investigation sent a rapporteur, or representative, of the United Nations to Hawai'i to announce in the Star-Bulletin newspaper that the 1898 annexation of Hawai'i was not valid and equated to an unequal treaty and therefore rendered invalid. At the same time the Connecticut Journal of International Law (Volume 5, Spring 1990, Number 2) has also found the annexation of Hawai'i was an unequal treaty example and invalid, citing human society suffers consequences of colonial rule where more powerful nations dominate weaker ones.

Hawai'i in 1920 appeared to have been granted a benefit with the Hawaiian Rehabilitation Act or the Hawaiian Homes Commission Act (HHC) of 1920. The first part of the Act identified the benefits of rehabilitation but the second part of the Act cites Colonization of Hawai'i and makes classes of inhabitant people by a blood quantum, which is forbidden under the constitution and has perpetrated law suits pertaining to the 14th amendment.

Buzzy Agard, is a Honolulu researcher and writer of Hawaiian issues.
This is an excerpt from his forthcoming publication on the history of ceded lands, planned for release by the end of 2009.