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Part 1: Property & Sovereignty
by Juan Wilson on 27 April 2008 Revision 3.1 080425
This
posting is the first of a two part article. In Part 1, I will review
the major historic events regarding property and sovereignty from first
British contact to today. Part 2 will draw some lessons from that
history.
Introduction
It should be understood that this is a brief survey based on my limited
research and does not claim any authority. However, it is an honest
attempt to understand the past. It is recommended the uninitiated
reader delve, on their own, into this deeply studied subject for a
better understanding.
To my knowledge, there were several phases of Hawaiian culture from the
time the islands were first discovered and inhabited by Polynesians
(sometime before 400 AD) to their first Contact with the British, in
1778. These phases were likely for several reasons.
Certainly
increasing population due to natural births and additional immigration
would be a factor but so would environmental modification from
agriculture, the introduction of new animal species and effects of
hunting and fishing.
Eventually
this growing society required more than a casual structure to manage
its resources and people. Hawaii, at the time of first Contact, was a
dynamic set of independent sovereign island kingdoms. This diversity
and resiliency was a disadvantage to the British and Americans who
arrived and wanted more leverage with Hawaiians.
End of Ancient Times
Tracing the history of property and sovereignty in Hawaii Nei has been
a complicated path. After first Contact in 1778, the early British
explorers described Hawaii as comparable to the organization of
Medieval Europe, distinct from other parts of the Pacific they had
visited. It was tenured land management by customary chiefs on island
kingdoms.
The independent island kingdoms only lasted a generation after Contact.
By 1810, with the technical support of the British and Americans,
ambitious Kamehameha I united the islands under one rule. Even Kauai,
the isolated and unconquered Kingdom of Atooi, was eventually brought
under his sway through diplomacy. And so the Kingdom of Hawaii was born.
By 1820 missionaries convinced Kamehemeha II to modernize by abolishing
the Kapu system that had managed Hawaiian culture and land. This
allowed much more influence by foreigners in Hawaiian affairs.
For fifty years after Contact, Hawaii had no constitution or treaties.
By the 1830’s, King Kamehameha III saw a need to protect Hawaii from
British and American self interests, so he began to reform the Kingdom.
In a short period of time, he negotiated treaties with the Untied
States and Britain, declared a bill of rights for Hawaiian people
(1839) and enacted the first constitution (1840). This constitution
observed the rule of customary chiefs and kapu, but did not recognize
land ownership.
The Great Mahele
King Kamehameha III was persuaded that “owning” the land would benefit
his people. The king met with all 245 Alii (moku chiefs) and Konohiki
(ahupuaa chiefs) to obtain an agreement assigning all the land in
Hawaii. This dividing of the land was called The Great Mahele.
Converting Hawaiian land (aina) into “owned property” began with the
formation of the Land Commission. Its job was to survey, account for
and determine land titles.
The Great Survey of the islands began in 1846. This was a large
undertaking, but in just a few years all the land were surveyed and
thousands of title applications decided. This process was far from
perfect, but, remarkably, it did accomplish a comprehensive
distribution of the land. The resulting titles were called the Royal
Patents.
The land remaining with the chiefs was called the Konohiki Land and
represented roughly one-third of what they had previously ruled.
Two-thirds of that land went to the throne and state. The land that the
Kamehemeha III kept for himself as regent was called the Crown Land.
The portion of land reserved for the state to sell or utilize was known
as Government Land.
One of the notable provisions of the Great Mahele was the Kuleana Act
of 1850. Under that provision, commoners (Kanaka Maoli) were allowed to
petition the Land Commission for title to land that they had
historically cultivated and lived on (from prior to 1839). The Kuleana
property became known as Maka'ainana Land.
Those Hawaiians who failed to go through the unfamiliar process of the
written title application were at a great disadvantage from that point
on. In any case, regardless of its fairness, the original Royal Patent
Awards are the foundation of all property ownership in modern Hawaii.
Constitutional Changes
In the revised constitution of 1852, Kamehemeha III recognized more
rights for the Kanaka Maoli (native Hawaiians) and more restrictions on
the monarch and chiefs. It was part of his effort to defend national
interests with Hawaiian property ownership and civil rights. Some argue
this was the height of Hawaiian constitutional reform.
King Kamehameha V refused to be sworn into office with that
constitution, and instituted a modified constitution that reinstated
lost authority of the monarch and chiefs in 1864.
In 1887, the so-called Hawaiian League (all of Anglo heritage) used the
threat of force to enact the “Bayonet Constitution” on King David
Kalakaua. This constitution again stripped much of the authority of the
monarch. It demanded a strict threshold for voter eligibility that
disenfranchised all Asians and non-property owners while empowering
rich foreigners and the native Hawaiian “elite.” About three-quarter of
ethnic Hawaiians were disqualified from voting.
Hawaiian Overthrow
In 1893 there was an overthrow of the Hawaiian monarchy by American
business interests lead by Stanford Dole, with the military muscle of
the U.S. Marines. This resulted in establishing a “Provisional
Governing Authority” that replaced the legitimate rule of Queen
Liliuokalani. Stanford Dole became president.
At
the time, the illegality of this takeover was obvious to the U.S.
President and Secretary of State. Queen Liliuokalani wrote an eloquent
plea to President Grover Cleveland to reject the overthrow and not
recognize any new treaty with the Provisional Governing Authority.
Cleveland wrote in response;
“I
conceive it to be my duty therefore to withdraw the treaty from the
Senate for examination, and meanwhile to cause an accurate, full, and
impartial investigation to be made of the facts attending the
subversion of the constitutional Government of Hawaii and the
installment in its place of the provisional government.”
Cleveland's message to Congress stated;
"I
suppose that right and justice should determine the path to be followed
in treating this subject. If national honesty is to be disregarded and
a desire for territorial expansion or dissatisfaction with a form of
government not our own ought to regulate our conduct, I have entirely
misapprehended the mission and character of our government and the
behavior which the conscience of the people demands of their public
servants."
Dole and his friends
had to wait out Cleveland’s term before attempting annexation. There
was a brief period of “independence” as a provisional government, and
then as a republic. But, once William McKinley was elected president,
the conspirators obtained a treaty with the U.S. that lead to Hawaii’s
annexation to America in 1898.
The annexation coincided with the end of the Spanish American War, and
beginning of the use of Pearl Harbor as the U.S. Hawaii Naval Station.
The American flag was then raised over the Iolani Palace and the
official territorial occupation had begun. As far as Americans was
concerned, the nation of Hawaii no longer existed.
Administrative Occupation
After World War Two, Hawaii was a strategic center of the U.S.
projection of power in the Pacific. In 1941 Pearl Harbor was attacked
and WWII began for America. The U.S. declared martial law in Hawaii.
After WWII, the United Nations determined that Hawaii was a
“Non-Self-Governing Territory”, under the administering authority of
the United States. This determination required the U.S. to respect
Hawaiian culture and provide for the development of self governance for
Hawaii.
Instead, in 1959, the U.S. voided that responsibility by passing the
Hawaii Admission Act that resulted in a referendum on U.S. Statehood
for Hawaii. It was overwhelmingly passed but it was badly flawed. This
plebiscite did not include independence as an option, as required by
international law.
In 1978 the State of Hawaii held a constitutional convention that gave
birth to the Office of Hawaiian Affairs (OHA). It purpose was to care
for the Ceded Land. This was the Crown and Government land that had
been turned over to the State from the Territory of Hawaii. The mission
of OHA is to malama (protect) Hawaiian interests, while enabling the
building of a strong and healthy Hawaiian people and nation, recognized
nationally and internationally.
Questions Arise
Since then the legitimacy of the U.S. in Hawaii has continually arisen.
This is exemplified by the U.S. Apology Bill, (US Public law 103-150)
signed in 1993, 100 years after the overthrow of Hawaiian Kingdom.
It acknowledges the illegality of the 1893 overthrow and therefore, all
that flows from it. Shortly after the signing of the Apology Bill
several Hawaiian sovereignty activists formulated serious efforts at
independence, particularly the members of the Kingdom of Hawaii and
Reinstated Nation of Hawaii.
Most recently, in 2007 the United Nations passed The Declaration on the
Rights of Indigenous People. This has great significance for Hawaii
today.
The Declaration states;
“indigenous
peoples... have the right to belong to an indigenous... nation, in
accordance with the traditions and customs of the... nation concerned”.
One-hundred-and-thirty-two
nations made the declaration. It is interesting that the only nations
voting against this UN resolution were the British related colonial
nations; Britain, Canada, Australia and the United States.
Conclusion
In light of Hawaiian history and these recent admissions and
declarations, it is difficult to see the current Hawaii State
government as anything other than a continuing American administrative
occupation begun illegally over one hundred years ago. In short, the
Hawaiian sovereignty movement is not in conflict with the intent of the
international law as well as U.S. and Hawaiian State law.
Part 2 of this series will identify several distinct historic periods
of Hawaiian self rule and investigate elements of each that may
contribute to the achievement of justice for Hawaii in the future.
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