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Newcomb: The Akaka Bill falls short

Two recent articles in Indian Country Today have voiced support for the Akaka Bill, which would use the legislative authority of the United States to establish the criteria for federal recognition of a Native Hawaiian governing body somewhat analogous to an American Indian tribal council (I say “somewhat analogous” because the governing body would not, for example, have the authority to open casinos such as we find in Indian country).

The proposed government would also be specifically prohibited from pursuing land claims in Hawaii. If passed, the legislation would make Hawaiian land claims “nonjusticiable” in state or federal courts. The proposed legislation also prohibits Kanaka Maoli from access to BIA programs and services, and provides that the Hawaiian government will not be eligible for inclusion on the secretary of the Interior Department’s list of those eligible for federal benefits and consultation.

The Akaka Bill has been promoted as a remedy for the injustices that the Kanaka Maoli of Hawai’i have suffered ever since 1893, when a criminal cabal of Americans conspired to overthrow the indigenous constitutional government known as the Kingdom of Hawai’i. Unfortunately, the bill falls short of addressing the original independence of the Kanaka Maoli.

On Jan. 17, 1893, American conspirators – supported by the unauthorized use of U.S. Marines from the U.S.S. Boston – threatened violence against the government of the Kingdom of Hawai’i and declared a “provisional government.” On that same day, when informed of the risk of bloodshed that would come from armed resistance to the conspirators, Queen Liliuokalani, under formal protest, yielded her authority to the United States government rather than to the so-called provisional government. Her protest, she later explained, “was signed by me and received by said government with the assurance that the case was referred to the United States for arbitration.”

As Queen Liliuokalani explained in a letter written in June 1897: “I yielded my authority to the forces of the United States, in order to avoid bloodshed, and because I recognized the futility of a conflict with so formidable of a power.” She further said that “the president of the United States, the secretary of state, [through] an envoy commissioned by them reported in official documents that my government was unlawfully coerced by the forces, diplomatic and naval of the United States, that I was at the date of their investigation the constitutional ruler of my people.”

The finding by U.S. magistrates that Queen Liliuokalani was still the constitutional ruler of her people was, wrote the queen, “officially communicated to me and to Sanford B. Dole.” As the queen stated, “Dole’s resignation was requested by Albert S. Willis, the recognized agent and minister of the government of the United States.”

The reason for the queen’s 1897 letter, from which the above quotes are taken, was to formally protest against a provisional treaty between the so-called Republic of Hawaii and the United States. By means of the treaty, the “Republic of Hawaii” intended to cede the Hawaiian islands “to the territory and dominion of the United States.”

Queen Liliuokalani pointed out in her 1897 letter that neither the Republic of Hawaii (nor those signing the proposed treaty on its behalf) “has ever received any … authority from the registered voters of Hawaii.” That government, she explained, “derives its assumed powers from the so-called Committee of Public Safety organized on or about said 17th day of January, 1893.” The “said committee being composed largely of persons claiming American citizenship, and not one single Hawaiian was a member thereof or in any way participated in the demonstration leading to its existence.”

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Queen Liliuokalani made a powerful argument when she wrote: “My people, about forty-thousand in number, have in no way been consulted by those, three-thousand in number, who claim the right to destroy the independence of Hawaii.” She continued: “My people constitute four-fifths of the legally qualified voters of Hawaii, and excluding those imported for the demands of labor, about the same proportion of the inhabitants” of Hawaii.

The treaty offered by the so-called Republic of Hawaii to the United States held out the strange prospect of the United States making a treaty with the very same men that the United States’ own investigation had, in the queen’s words, “pronounced fraudulently in power and unconstitutionally ruling Hawaii.”

Queen Liliuokalani argued the proposed treaty “ignores not only all professions of perpetual amity and good faith made by the United States in former treaties with the sovereigns representing the Hawaiian people, but all treaties made by those sovereigns with other and friendly powers, and it is thereby in violation of international law.”

The provisional treaty was never ratified because the Senate twice failed to get the two-thirds majority necessary for ratification, and because nearly all 40,000 Kanaka Maoli registered their opposition in what are now known as the Ku’e Petitions. After the treaty died for lack of ratification, those politicians in the U.S. government that wanted to annex the lands of Hawaii took the language of the treaty and drafted it into the form of a joint resolution, which would need only a simple majority of Congress to pass.

Congressman Ball said that the Newlands Resolution was “a deliberate attempt to do unlawfully that which cannot be lawfully done.” Ball based his comments on the fact that there is no provision in the U.S. Constitution or in international law that provides for a country to annex a foreign territory by joint resolution, without an underlying treaty, and particularly against the express and duly recorded opposition of the majority of the inhabitants of that territory. Ignoring the Constitution and international law, Congress passed the Newlands Resolution on July 17, 1898, thus creating the false perception that Hawaii had been annexed by the United States. However, from the standpoint of the U.S. Constitution and international law, the fact remains that Hawaii was never legally annexed.

The Akaka Bill does not even begin to address and remedy the political history of the Kanaka Maoli people and the criminal fraud that has been committed against them by the United States. If anything, the bill makes it seem as if the sovereignty of the originally independent Kanaka Maoli simply disappeared at some point in the past and that the Kanaka Maoli will never again have any distinct form of sovereignty unless the U.S. government “grants” it to them.

True political, cultural and spiritual sovereignty resides in the Kanaka Maoli based on their original independence as a distinct nation. It is not something that they are now lacking and need to have “granted” to them by Congress. To this day, what the United States seems bent on drawing attention away from is the fact that Hawaii was never legally annexed and that the Kanaka Maoli of Hawaii still possess an inherent right of self-determination. They therefore possess the right to freely determine their own political status and to freely determine their own economic, social and cultural development.

(Note: I want to thank Kilikina Elchinger-Fetterman for providing me with a copy of Queen Liliuokalani’s 1897 letter from the National Archives in Maryland, and David Ingham for his helpful suggestions.)

<i>Steven Newcomb, Shawnee/Lenape, is Indigenous Law Research Coordinator at Kumeyaay Community College on the reservation of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute, a research fellow with the American Indian Policy and Media Initiative, and a columnist with Indian Country Today.