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November 23, 1982

The Native Hawaiians Study Commission Department of the Interior 18th and C Streets, N.W. Room 6220 Washington, B.C. 20240

D e a r S i r s ;

Enclosed is one copy of my comments on the Draft Report of Findings of the Native Hawaiians Study Commission. I ask that it be made part of the public record of the Commission.

A lo h a ,

DANIEL K. IN OUYE United States Senator

D K I: jm p l E n c lo s u re INO U Y E Prince Kuhio Federal Building R o o m 6104, 300 A la M o an a B oulevard H onolulu, Hawaii 96850 (808) 546-7550 United States Senate ROOM 105. RUSSELL SENATE BUILDING W AS H IN G TO N . D .C. 20510 (202) 224-3924

November 23, 1982

The Native Hawaiians Study Commission Department of the Interior 18th and C Streets, N.W. Room 6220 Washington, D.C. 20240

Dear S irs :

Enclosed is one copy of my comments on the Draft Report of Findings of the Native Hawaiians Study Commission. I ask that it be made part of the public record of the Commission.

Aloha,

DANIEL K. INOUYE United States Senator

D KI: jm p l E nclosure COMMENTS BY SENATOR DANIEL K. INOUYE

THE DRAFT REPORT OF FINDINGS OF

THE NATIVE HAWAIIANS STUDY COMMISSION

NOVEMBER 23, 1982 TABLE OF CONTENTS

PART I . Page

A. Preliminary Statement ...... 1

B. Conclusion...... 2

C. Summary o f A rg u m e n ts ...... 2

H istorical Review ...... 3

Legal A nalysis...... 3

PART II. H istorical Review

A. Methodology...... 7

B. Bayonet Constitution of 1887...... 14

C. Role of the United States Government Relative to the Annexationists...... 18

D. Role of the United States Government in the Revolution of 1893...... 20

E. Use of Facts...... 23

F. International Law...... 26

PART III. Legal A nalysis...... 30 PART I

Pursuant to Public Law 96-565 and the September 23,

Notice of The Native Hawaiian Study Commission (Commission), the following comments are submitted on the Draft Report of

Findings (Report) of the Commission.

The analysis and conclusions herein expressed represent my personal assessment of the Report and are in no way intended to reflect the o fficia l position of the U.S. Senate or any of its Committees.

A. Preliminary Statement

The Report expressly states that a "fu ll review of the history of United States relations with Hawaii is essential to an evaluation of Hawaiian native claim s," and that an (im partial) "analysis of the causes of the fa ll of the monarchy and annexation" are "crucial to this study." (p. 176). It also finds that "existing law provides no basis for compensation to native Hawaiians for any loss of lands or loss of sovereignty." (p. 243).

The Commission's next step is "to consider whether it should recommend that, as a matter of policy, taking a ll of the facts of (the) Report into account, Congress should take action on compensation here." (p. 243).

I agree that "a fu ll review of the history" is essential, and that im partial "analysis of the causes of the fa ll of the monarchy and annexation are crucial." - 2 -

However, by its failure to meet either stated goal, the

Report is, by its own standards, fatally flawed.

Moreover, inasmuch as the Commission's Report was to have been a "report of findings", im partially arrived at,

I question the appropriateness of selecting the Department of Justice to examine existing laws to determine whether they provide a basis for compensation to native Hawaiians for any loss of lands or loss of sovereignty.

This is also true of the use of a U.S. Naval Historian to buttress the Federal Government's claim of lack of culpability in the 1893 Revolution.

Aside from the question of im partiality, I also believe the Report's analysis of existing law on the question of the

Government's lia b ility is faulty.

B. Conclusion

If the Report is adopted in substantially its present form, the cause of the native Hawaiians w ill be severely damaged. No matter what the Commission may, as a matter of discretion, recommend in terms of remedial legislation, the underlying "findings" concerning the right to re lie f of native Hawaiians w ill be so negative as to assure the defeat of any such remedial legislation.

C. Summary of Argument

The Report is neither a "fu ll review of the history of

United States relations with Hawaii," nor an im partial -3 -

"analysis of the causes of the fa ll of the monarchy and annexation” .

1) Historical Review

(a) The Report is deficient in its historio

graphical methodology and provides no new

insights into outstanding historical issues.

It relies almost to ta lly on secondary sources

and there is no evidence of any attempt to

search several major archival sources. It

fails to deal with the specific adverse

conclusions in the Blount report, while

according equal cre d ib ility to the Morgan

report, which is highly suspect because of

the way in which it was prepared and because

it was not unanimous. There is little attempt

to place the revolution and the annexation in

a larger global diplomatic context, which in

turn greatly affected events in Hawaii.

Furthermore, while it was in the interest

of the Commission to preserve absolute

objectivity in the preparation of the Report

both in fact and in appearance, the assignment

of a United States Government employee to w rite

the history of an event in which the United

States is a party of interest w ill inevitably - 4 -

raise questions about its objectivity. Finally,

there are several minor errors which should be

c o r r e c t e d .

(b) The Report fails to inquire into the possible

role of the United States Government in the

acceptance of the "Bayonet Constitution" of

1887, and in thwarting subsequent efforts by

native Hawaiians to overturn that Constitution

in 1889, and to revise it in 1890. It also

fails to consider the possibility of a cause-

and-effect relation between that Constitution

and the fa ll of the monarchy in 1893.

Government in encouraging the annexationists

(and therefore the rebellion) in 1892.

(d) The Report's fundamental conclusion as to

why the monarchy fe ll begs the question. It

may be that the fa ll of the monarchy was

"prim arily the result of a power struggle

between supporters of the monarchy and the

monied 'haoles'" (p. 188), but for purposes

of the Report, the question should be: was

the role of the U.S. Government significant

or decisive to the outcome?

(e) The Report's characterization of events during

the crucial days in January, 1893, which - 5 -

culminated in the fa ll of the monarchy and

recognition of the Provisional Government,

rests on a selective use of the facts regarding

the activities of the annexationists, U.S.

M inister Stevens, the U.S. Navy and Marines,

and Queen Liliuokalani.

(f) The Report fails to address the international

legal issues posed by revolution and the

involvement of the United States in the _

Hawaiian Kingdom's overthrow. International

law attempts to prescribe certain principles

of conduct and to provide a framework for

the rule of law in international relations.

Since Hawaii was a sovereign nation, the United

States was obliged to conduct its relations

with the Royal Government in accordance with

accepted legal principles of the time. An

analysis indicates that the United States

M inister failed to do so and thereby fatally

compromised the Government of the United States.

2) Legal Analysis

(a) The Report's finding that there is no basis

in existing law for native Hawaiians to claim

compensation from the United States for loss

of land or sovereignty is irrelevant. The

task of the Commission was to ascertain - 6 -

whether a legislative remedy for native

Hawaiian claims was appropriate under the

circumstances, not to try to force-fit these

claims w ithin an existing legal framework.

Therefore, in this respect, the Commission's

focus was wide of the mark. Likewise, the

claims histories of other aboriginal groups,

while relevant, should not have fixed the

parameters of the Commission's inquiry. A — —

broader and less constrained perspective would

have afforded the Commission a greater opportunity

to achieve its basic mandate, namely, to ascertain

whether the claims of native Hawaiians had any

moral legitim acy, and, if so, what remedy should

be fashioned.

(b) Moreover, even if the question were in point,

given its institutional bias, the Department

of Justice was hardly the appropriate party

to perform the legal analysis on the question

of the Government's lia b ility for such claims.

law in support of its finding that there is

no basis for Government lia b ility is faulty. - 7 -

PART I I - HISTORICAL REVIEW

A. The Report is deficient in its historiographical methodology

and in historical interpretation. It is neither a "fu ll review

of this history of United States relations with Hawaii," nor

an im partial "analysis of the causes of the fa ll of the

monarchy and annexation".

1) The Report purports to be the "most complete compilation

of data and inform ation on native Hawaiians that has ever been

collected in one volume." (Preface)

However, its historical portions, especially the sensi

tive Chapter II of Part II, rely almost to ta lly on secondary

historical sources, principally Ralph S. Kuykendall's multi-volume

The Hawaiian Kingdom. The very few primary sources cited consist

mainly of the Congressional Record, National Naval Archives, and

the Senate hearings and reports. I would note that there are

several major archives which could and should have been consulted,

including the following:

University of Hawaii Library, Hawaiian Collection

Diary of W illiam R. Castle, one of the five annexationist

commissioners sent to Washington.

Library of Congress, Manuscript Division

Papers of the following individuals connected with the

Hawaiian situation: Thomas F. Bayard, Secretary of State; President

Grover Cleveland; John W. Foster, Secretary of State; -8-

Walter Q. Gresham, Secretary of State; Senator John T. Morgan;

Richard Olney, Secretary of State; and Senator John Sherman.

Maine H istorical Society, Portland

Papers of John L. Stevens, United States M inister to Hawaii

Massachusetts H istorical Society, Boston

Papers of Senator Henry Cabot Lodge.

National Archives, Record Group 59 General Records of the Department of State

This file contains diplomatic instructions, dispatches, and

notes for period under discussion.

Stanford University Library, Stanford, California Department of Special Collections.

Papers of Senator Stephen M. White.

State Archives of Hawaii, Honolulu, Hawaii

This file contains the letterbook of the Executive Council

of the Provisional Government of 1893; the papers of Francis M

Hatch (annexationist), Lorrin A. Thurston, Stanford B. Dole,

W illiam 0. Smith (annexationist), and Queen Liliuokalani.

It is likely that other archival resources exist, but the

constraints imposed by the Commission's deadline for public

comment preclude a more comprehensive search at this time.

The overreliance on secondary sources has resulted in a

report that only reinforces the standard and narrow perspective

with no new insights into the controversial activities of the

revolutionaries prior to and during the 1893 Revolution and of

American M inister John Stevens and the sequence of events of - 9 -

January 17, 1893. I agree that Chapter II of Part II is

"particularly sensitive and crucial to this study," and for

that reason new, original in itiatives should have been under

taken by the Commission to attempt to provide a definitive

account of this period.

2) The bias of the Report is most apparent when it

accords the so-called "Morgan Report" (Report of the U.S.

Senate Committee on Foreign Relations Relative to Hawaiian

Matters, S. Rept. 52-227 2d, Sess. 1894) virtu a lly equivalent

historical va lid ity as the Blount Report (House Executive Doc.

No. 47, 53rd Congress, 2d Sess.). Although the draft Commission

report correctly notes that the objectivity of both reports

has been questioned, there are substantial differences between

the methods by which the contradictory conclusions of the two

reports were reached.

(a) The Morgan Committee never conducted hearings

in Hawaii, unlike Commissioner James Blount

who spent more than four months conducting

an on-site investigation into the revolution.

(b) Commissioner Blount interviewed parties on both

sides of the conflict and produced a detailed

and exhaustive document. As has noted by a

diplomatic historian,"... the factual background

of its story of the revolution cannot easily be -1 0 -

disputed."1

In contrast, Senator Morgan allegedly "asked many provocative leading questions, phrased appropriately to bring out the facts or impressions he wished to emphasize, and frequently interrupted the testimony and answers abruptly, or shrewdly directed them to other channels when they threatened to become derogatory.

The Republican annexationist members of the committee interjected numerous queries intended to place the President, his Secretary of State, and his special 'paramount' commissioner either in error or in bad lig h t."2

The Hawaiian side was neither presented nor explained except by Blount. Furthermore, only Morgan endorsed a ll the report's conclusions, and the members sp lit according to party a ffilia tio n .

Citing the Morgan Report as an authoritative source of information thus may be construed as deliberately preventing a factual determination of the circumstances surrounding the revolution, especially the role of United States M inister Stevens and the impact of the U.S.S. Boston. The Commission should qualify the significance of the Morgan Report by noting fu lly and accurately the reservations of professional historians.

3) The revolution and the subsequent annexation of Hawaii by the United States occurred at a time of American expansion in the Pacific and Caribbean, culminating in a decade in which the

1/ Dulles, Foster Rhea. America on the Pacific: A Decade of Expansion, New York, Da Capo Press, 1969, p.. 179. 2 / Tate, Merze, The United States and the Hawaiian Kingdom, New Haven, Yale Univ. Press, 1965, pp. 252-253. -1 1 -

United States acquired Hawaii, Samoa, Puerto Rico, the

Philippines, and Guam. The report should provide a more detailed examination of the larger historical context in which the revolution and annexation occurred. For example, two addi tional recent studies dispute some of the conventional views on

Hawaiian annexation. W illiam Michael Morgan, in an article in

Diplomatic H istory, Vol. 6, No. 1 (Winter 1982) argues that it was the anti-Japanese climate in the United States in the mid-1890's that was largely responsible for the ultimate annexation of Hawaii in the McKinley adm inistration.

Thomas J. Osborne in his book "Empire Can W ait" American

Opposition to Hawaiian Annexation, 1893-1898 (Kent State Univer sity Press, 1981), on his part claims that historians have exaggerated the role played by the Spanish-American War in over coming the opposition to Hawaiian annexation. He points out that the appeal of the Asian market, the concern about the economic partitioning of China by rival powers, the upturn of American trade in mid-1898, and the expectation of increasing American-

Hawaiian commerce, were decisive factors contributing to the annexation of Hawaii in 1898.

Older accounts to which no reference is made include

Thomas Bailey, A Diplomatic History of the American People;

Foster Rhea Dulles, America on the Pacific: A Century of Expansion and W illiam Russ, The Hawaiian Revolution.

The security interest of the United States is conceded on -1 2 - page 199 of the Report, which also acknowledges that Stevens was strongly pro-annexationist (p. 192). These two facts are significant and intim ately related, for they explain the rationale for the active involvement of the American M inister and the intervention of United States naval forces in the events of January 17, 1893. The draft report provides only marginal information relative to the p o litica l and economic motivations for the United States' interest in annexing Hawaii, whose te rrito ria l integrity had already been compromised under the

Hawaii-United States Reciprocity Treaty of 1875.

The active participation of United States troops in 1893, therefore, was preceded by several decades of American interest in acquiring certain strategic advantages in Hawaii. The inter vention of American naval forces, which was not ju stifie d by danger to American lives or property, is comprehensible only with an understanding of contemporary national intellectual and political currents.

4) The Commission was directed to draft an impartial report.

The processes of democratic government must be fa ir in fact and give the appearance of fairness. Because the United States

Government is a party of interest with respect to the history of the revolution, Hawaiian-American relations, and the claims issue, it was inappropriate for the Commission to assign the drafting of Part II of the Report to United States Government e m p lo y e e s . -1 3 -

Without impugning the in teg rity or professional competence of the writers, I must emphasize that the United States Govern ment has a direct economic and p o litica l stake in disproving the basis for a claim for Hawaiian reparations or compensation.

By giving a United States Government employee the responsibility for w riting the historical chapters of the Report, the Commission has created understandable doubts as to whether agents of the

American Government can provide an objective and trustworthy historical assessment of this period which might contradict the interests of their employer.

Moreover, it appears that the writers failed to solicit the views of other professional historians who specialize in this period and area. Consequently, the draft represents the work of a two-person team without the substantive contribution which others could have made if they had been presented with the opportunity to review the draft. Even though the Report is now open to comment and possible revision, it is my impression that the procedures followed indicate an unwillingness to submit these findings to private professional critique.

5) There is a minor factual error on page 195. It was

Henry E. Cooper, not H.E. Carter, who read the proclamation of the new government. Also, there is a misleading sentence on page 197, which states that a "fact-finding commission headed by Representative James Blount arrived at the Islands", implying that there were several members on the commission which in fact -1 4 -

consisted of only one person. On page 190, the authors mean

the election of 1892, not 1893.

B. A fu ll and fair understanding of political and legal

developments in the Kingdom of Hawaii during the c ritic a l

years covered by the Report must take into account the

tremendous external and internal pressures exerted on the

Kingdom at that time. First, it is to be remembered that

the Kingdom of Hawaii was relative ly new to the ways and wiles

of the Western world. Second, it was vulnerable to the pressures

of a very aggressive alien resident class, particularly the

American expatriate element and to the pressures of foreign

nations, notably the United States. Third, the Hawaiian Kingdom was undergoing dramatic social and p o litica l changes, as is the case with a ll developing nations.

A ll of these pressures had to have some impact on the

Kingdom of Hawaii and its a b ility to control its own affairs.

There was substantial interference, and the Kingdom had to make many adjustments. To the extent that the United States condoned, participated in or enjoyed the benefits of the coercive activities of the American expatriate group, it had and continues to have a moral, if not legal, responsibility for any injury caused the native Hawaiians as a result.

The Report fails to inquire into: (a) the possible role of the United States Government in the acceptance of the "Bayonet

Constitution" of 1887, and in thwarting subsequent efforts by -1 5 - native Hawaiians to overturn that Constitution in 1889, and to revise it in 1890; (b) and the possibility of a causal connection between the "Bayonet Constitution" and the fa ll of the monarchy . in 18 9 3 .

While the "Bayonet Constitution" was chiefly the work of the American expatriate element, to leave it at that takes too sim plistic a view of what happened, in my judgment. Especially where, as here, the question is whether the United States has a moral responsibility for any injury caused native Hawaiians as a result of the fa ll of the monarchy and annexation. The efforts of the United States Government to bring the Kingdom of Hawaii within its sphere of influence were manifest by a number of o fficia l acts over several years before the Constitution of 1887.

In and of its e lf this should have been sufficient reason to inquire whether the United States had any role in gaining acceptance of that Constitution and if that Constitution precipitated or contributed to the fa ll of the monarchy. But there are further reasons which I believe suggest that such an inquiry should have been undertaken.

We know, for example, that King Kalakaua sought the advice of the United States M inister on July 27, 1887, when he was faced with the prospect of a revolution led by the Committee of Thirteen.

In my view, it would be reasonable and relevant to inquire whether at that meeting he also sought the aid of the United States to head off the efforts of that Committee. In any event, the United -1 6 -

States M inister told the ruling monarch of the Kingdom of Hawaii that he must stop meddling in the public affairs of his Kingdom.

Four days later, in a final effort to preserve the monarchy,

King Kalakaua called in the m inisters of the major powers,

including the United States M inister, to te ll them the country was being taken over and that "he wanted to place the kingdom

in their hands." They refused to accept. It seems to me that the attitude of the U.S. M inister suggests the real possibility that the United States may have aided or at least ta c itly encouraged the revolutionary activities of the Committee of Thirteen.

The Report expressly recognizes that the interval between the Constitution of 1887 and the installm ent of the Provisional

Government in 1893 was marked with sporadic attempts by native

Hawaiians to regain some measure of their power. But here again there is no attempt to assess the role, if any, of the United

States in thwarting these attempts.

With respect to the attempt in 1889 to overturn the

Constitution, a ll the Report tells us is that "the insurrection was quelled". The Report also admits that the American and

B ritish m inisters "persuaded" King Kalakaua to disavow his previous public support of efforts in the following year to

revise the Constitution. The Report expressly recognizes that a

United States naval squadron was in Hawaii in 1890, and its

Commander, Rear Admiral George Brown, was prepared to move in

the event the attempt to revise the Constitution m aterialized. -1 7 -

Clearly, there is much more to say about the role and influence of the United States during the period 1887-1893, and the Report simply fails to address this issue.

While this shortcoming may be bad history, I recognize that it would not be fatal to the task of the Commission, unless the "Bayonet Constitution" its e lf substantially contributed to the fa ll of the monarchy in 1893. I believe a strong case can be made that it did. But once again, the Report is devoid of analysis or findings even though it expressly recognizes that the "Bayonet Constitution ended much of the monarchy’s power and effectively brought control of the Government within the sphere of the planters and merchants."

The Report states that "The Constitution of 1887 was a key in the changing scope of Hawaiian p o litics." Among other things, its provisions had the effect of placing the legislature in the hands of the Reform Party, which was made up largely of Hawaiian-born

Americans and Europeans, and resident foreigners.

The Reformers also set themselves to remove every trace of

King Kalakaua's influence in the running of the Kingdom. There was, for example, a wholesale purge of the Government service; the board of genealogists, and the native Hawaiian board of health were abolished; the control of the Kingdom’s armed forces was taken from the royal Generalissimo and given to the m inister of foreign affairs; and the young Hawaiians being educated in Europe were ordered home. According to one historian, the effect of a ll -1 8 - of this was to "knock Kalakaua over and bind him hand and foot."3

The Report is virtu a lly silent on these events, and hence does not assess their significance. For purposes of the Commission's task, is it immaterial to ask if the Constitution of 1887, which made a ll of this possible, also contributed significantly to the fa ll of the monarchy in 1893? Or, is it irrelevant to ask that if Queen Liliuokalani had the powers her predecessor had before the Constitution of 1887, would she have been able to put down the Revolution of 1893? I think not.

C. The Report ignores the role of the U.S. Government in

encouraging the annexationists in 1892.

Early in 1892, the Annexationist Club was formed to counter act what its members believed was a like ly effort by Queen

Liliuokalani to move against the Constitution of 1887. Formation of the Club was in itiated by Lorrin Thurston, and included many of the American expatriates who framed the Constitution of 1887.

In the event of an attempt by Queen Liliuokalani to revise the Constitution, the Annexationist Club planned to seek annexation to the United States. Their membership and plan were kept secret because what they proposed was treason.4 S ignificantly, I believe,

Lorrin Thurston believed that foreigners with a financial invest ment in the Kingdom and permanent settlers favored annexation,

3/ Daws, Gavan. Shoal of Time, New York, The MacMillan Co., 1968, p. 253. 4/ Daws, id., p. 266. -1 9 - while the common natives and the Queen and her faction were o p p o s e d .

Inasmuch as the Committee of Safety, which brought about the fa ll of the monarchy was a direct outgrowth of the Annexationist

Club, I believe it is relevant to ask whether the United States

Government actively encouraged or otherwise condoned the treasonous plans and objectives of the Annexationist Club. As evidenced by the following excerpt from a history of Hawaii,5 it seems to me there is a good possibility that question could be answered in the affirm ative. Yet the Report not only fails to assess the significance of Lorrin Thurston's Washington meetings in 1892, it fails to mention them.

"Thurston...visit(ed) Washington... (to) see what the statesmen there thought about taking the Hawaiian Islands... Secretary of State James Blaine was cordial, and Secretary of the Navy Benjamin Tracy passed on to Thurston some encouraging words from President Harrison -- that 'if conditions in Hawaii compel you to act as you have indicated, and you come to Washington with an annexation proposition, you w ill find an exceedingly sympathetic adm inistration here.'"

If nothing more, the reception Lorrin Thurston received in o ffic ia l Washington did nothing to discourage the annexationists.

In light of the role of U.S. M inister Stevens and the U.S. Navy during the fa ll of the monarchy less than a year later, I do not think it unreasonable to attach even greater significance to that reception.

5/ Daws, id., p. 266. -2 0 -

D. The Report begs the fundamental question: Was the role of

the United States significant or decisive in bringing about

the downfall of the monarchy? If it was, then it seems to me that moral case for reparations becomes significantly stronger and perhaps decisive.

The Report concludes that the fa ll of the monarchy was

"prim arily the result of a power struggle between supporters of the monarchy... and the monied haole group..." (p. 188), but that determination fa ils to address the issue of U.S. involvement and its importance in expediting the success of the revolutionaries.

The authors of Chapter II, Part II attempt to minimize the role of the United States M inister John Stevens and the impact of the landing of troops from the U.S.S. Boston even while simultaneously conceding that Stevens was known publicly to be strongly pro-annexationist,6 that he was in close communication with members of the Annexationist Club, that he requested troops to protect American property and lives in the absence of any immediate or visible physical danger, and that troops were bivouacked at a location near government buildings in apparent contradiction to their announced mission. Moreover, there can be no doubt that their presence demoralized the Royal Government

6/ Kuykendall, Ralph S., Hawaiian Kingdom, Vols, I-III, Honolulu, University of Hawaii Press, 1967. Hereafter referred to as Kuykendall. Kuykendall states that there can be no doubt that Stevens was dedicated to annexation and overeager to recognize the provisional government. P. 629. - 21- and convinced its supporters that the United States supported the revolutionaries (p. 194).

On page 192, the authors further attempt to minimize the impact of the troops by comparing their number - 175 men plus a rtille ry and 75 armed revolutionaries - to the Hawaiian army, whose membership was given as 500. The overt purpose of this comparison is obviously to downplay the importance of the landing.

Deliberately omitted is the fact that the Hawaiian army was scattered throughout the Kingdom and was not concentrated in

Honolulu. Nor was it capable of opposing well-trained foreign forces. Furthermore, the authors' estimate of the size of the

Hawaiian army is at odds with Kuykendall, who states that it consisted of only 272 men.7 The well-armed and trained American troops would thus have been more than adequate to overcome their potential opposition.

A review of the history of the U.S. strategic interest in the Hawaiian Islands, the interaction between the annexationists and American o ffic ia ls , and the occurrences immediately preceding and during the revolution leads one to less ambiguous and qualified conclusions than were reached by the authors.

First, with respect to the activities of Stevens, it was known that he was strongly pro-annexationist. Second, he had

7/ Kuykendall, id., p. 605. -2 2 - secret meetings with members of the Committee of Safety, which was composed of members of the old Annexationist Club. The Report fa ils to mention that Stevens may have done more than indicate to the Committee members a willingness to recognize a provisional government. He also apparently offered his opinion of the Queen as a revolutionary who had committed an ille g a l act.8 Such gratuitous language was inflammatory and was obviously calculated to encourage the revolutionaries.

Moreover, the Report conveniently omits the fact that the

Committee members also apparently sought the support of Captain

W iltse, who, one historian reports,seemed to approve of the

Committee's plans.9 On Monday, January 16, 1893, the Committee sent a letter to Stevens requesting the protection of American forces. Thus, a carefully scripted pretext for American inter vention was set into motion with the fu ll knowledge and cooperation of the commander of the U.S.S. Boston and the American M inister.

No historian, however biased, has ever been able to discern a

threat to the lives or property of foreigners from Queen

Liliuokalani's government except to the extent that they would not enjoy certain privileges if her proposed new constitution had been enacted. The Report further notes that no retaliation against the members of the Committee was taken even though its a ctivities

8/ Kuykendall, id ., p. 588 9/ Kuykendall, id ., p. 588 -2 3 - were known as early as Sunday, January 15th (p. 192), and the reality of the "threat” must be seriously questioned. The threat of violence was fabricated and served as a convenient excuse to s o licit armed American support. The entire revolution was accomplished without a single life being lost and with only a few rounds of ammunition expended.

I believe that the historical record lends credence to the belief that the American involvement was significant, substantive, and perhaps decisive. The p o litica l turm oil created by the attempt of monarchists to reassert their sovereignty relative to foreigners and local monied "haoles" was not marked by violence.

Nevertheless, there developed a coincidence of interests by the revolutionaries and pro-annexationist American o fficia ls to use the opportunity to land American troops, thereby neutralizing any effective response to the revolution by the Royal Government.

One can only conclude that the United States, as represented by its agents in Honolulu, was an active participant in and a p o liti cal beneficiary of the revolution which eventually resulted in

Hawaii's annexation as a territory in 1898.

E. The Report's characterization of the events during the period

January 14-17, 1893, culminating in the fa ll of the monarchy

and recognition of the Provisional Government, rests on a

selective use of facts regarding the activities of the

annexationists, American M inister Stevens, the United States

Navy and Marines, and Queen Liliuokalani. -24-

As I have pointed out above, the facts about American involvement are very disquieting, for it constituted more than protection of American lives and property and more than passive r e s p o n s e s .

In 1891, Queen Liliuokalani succeeded to the throne, determined to stem the erosion of the monarchy's authority.

Beginning in early 1892, she began preparing to amend the

Constitution to more closely resemble the Constitution of 1864.

It was her attempt to promulgate a new constitution in January,

1893, that precipitated the formation of the Committee of

Safety, meetings between the revolutionaries and Stevens, and the revolution itse lf.

There was no danger to any lives or property and hence no justification for the landing of the forces from the U.S.S.

Boston. The Report does not and cannot make a case for the landing and avoids this issue completely. The differences between the merchants and plantation owners and the monarchists was a domestic conflict into which the United States had no reason or right to interfere except to protect American lives.

The manner of deployment of American troops was also of questionable legality, for it led to the natural conclusion that they were landed for reasons other than to protect American lives and property. As a ll historical accounts note, much of the company was bivouacked between the Palace and Government

Building, away from the concentration of American property. -2 5 -

There were many factors which contributed to the revolution, and the economic issue was but one of them. In addition to the strategic value of Hawaii, which was expounded by Alfred Thayer

Mahan, the report does not mention one of the most sensitive elements - the growing racial antagonisms.10 This factor is important because it is consistent with the development of the theory of "social darwinism" which had gained intellectual respectability in much of the Western world. This was the dark side of the revolution.

The history of the Hawaiian Republic is relegated to a few sentences, but it is worth examining in greater detail because it casts doubts on the noble sentiments expressed by the revolutionaries. In practice, the ensuing Republic, ruled by an oligarchy and operating under a restricted franchise, proved to be less democratic and less free than its American model.

Finally, I do not believe that Part II of Chapter II adequately relates the significance of this history to the

"concerns" of Native Hawaiians as mandated in P.L. 96-565. An accurate historical account is important not only for its legal im plications but also because it helps to explain why so many

Hawaiians and part-Hawaiians became alienated from p o litics and life in the post-monarchy period. The destruction of the monarchy, fai l ed restoration attempt, ana the curtailment of the franchise

10/ Kuykendall, id., p. 634; Daws, Gavan, id., p. 277. -2 6 - effectively terminated the right of the Hawaiian m ajority to control the fate of their land. It is only against this background of p o litica l disenfranchisement that the statistics recounted in Part I can be understood.

F. The role played by the United States, through its Minister

John Stevens and its armed forces aboard the U.S.S. Boston,

is of paramount importance since a violation of accepted

international legal behavior would make the United States

accountable for remedying the actions which violated the

law. This was, in fact, the finding of the investigation conducted by Commissioner James Blount and communicated by

President Cleveland to the Congress on December 18, 1893, (noted on p. 198 of the Report).

1) Acts of a State's agents and organs. The American representative to the Kingdom of Hawaii was M inister John Stevens.

International law deems acts of state o fficia ls and organs as

"acts of the State" for purposes of determining the State's in ter national responsibility.11 Thus, Stevens' actions, which were conducted in behalf of the United States, even if not specifically directed by the Department of State or the President, constituted an act of State and thereby laid international responsibility for them on the Government of the United States.

11/ 11/ Yearbook of the International Law Commission, Volume II, Articles 5 and 10 (1973 and 1975). -2 7 -

Among the activitie s of the Boston troops and Stevens on

January 16th and 17th were those which clearly could be construed

as representing the authority of the United States Government.

The events included the follow ing: meetings between Stevens and

the Committee of Safety; landing of U.S. troops on January 16, 1893,

and their deployment in Honolulu; and recognition of the provi

sional government by Stevens prior to its gaining control over

a ll m ilitary strongholds and the abdication of the Queen.

As the Report acknowledges, Stevens was known to have strong annexationist views (p. 192). Furthermore, the landing of the

troops naturally provided psychological support to the revolu tionaries (p. 194) and probably had the effect of intim idating

the Royal Government (pp. 194-195).

2) State practice of recognition. In the nineteenth century, the United States generally followed the practice of extending recognition to the person or persons in control of the government.12

This apparently was also the understanding of the Department of

State, whose international law Digest, claims

" (N)or was any public recognition accorded to the provisional government by the United States m inister u n til the Queen had abdicated and the provisional government had secured 'effective possession of the government buildings, the archives, the treasury, the barracks, the police station, and a ll potential machinery of the government.'" 13

12/ T. Chen , The International Law of Recognition, pp. 103-130, (1951). 13/ J.B. Moore, Digest of International Law 498 (1906). -28

In fact, this account was incorrect, for recognition by

Stevens preceded the surrender of the police station and the abdication of the Queen.

Therefore, by any measure, the American recognition of the new provisional government was premature and unjustified by events or under international law as then practiced. Stevens, as the representative of the United States, had other legal a lte r natives available besides de facto recognition, including recognition of "belligerency" and "insurgency", both of which maintain a State's position of neutrality. That he did not do so at a period when facts were unclear and the course of events unsettled is indicative of his wanton disregard for inter national legal practice.

3) The duty of a State to avoid intervention in the domestic affairs of another State. It is a firm ly established principle in international law that a State may not interfere in the domestic affairs of another sovereign State.

14/ American Law Institute, Restatement (Second) of the Foreign Relations Law of the United States, 94 (1965), Comment e. 15/ See, e.g., Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, General Assembly Resolution 2625, October 24, 1970, U.N. Monthly Chronicle, 99, 1 0 2 -1 0 3 . -2 9 -

I have noted that under international law Stevens was an agent of the United States Government, that recognition of the provisional government was extended in a manner contrary to contemporary American practice and inconsistent with the prevailing political situation, and that such intervention in the domestic affairs of another country was contrary to in ter national law. The legal analysis is addressed in Part III. - 3 0 -

PART I I I - LEGAL ANALYSIS

The Report's finding that there is no basis in existing

law for native Hawaiians to claim compensation from the United

States for loss of land or sovereignty is irrelevant. Moreover, even if the question were in point, given its institutional bias, the Department of Justice was hardly the appropriate party to perform the legal analysis on the question of the Government’s lia b ility for such claims. In any event, the Report's analysis of existing law is faulty.

1) It seems to me that the task of the Commission was

to ascertain whether a legislative remedy for native

Hawaiian claims was appropriate under the circumstances,

not to try to force-fit these claims within an existing

legal framework. It would appear self-evident that, if

there already existed a forum and procedure for

determination of these claims, they would have been

disposed of long ago. In this respect, it appears

that the Commission's focus was wide of the mark.

Likewise, the claims histories of other aboriginal

groups, while relevant, should not have fixed the

parameters of the Commission's inquiry. A broader

and less constrained perspective would have afforded

the Commission a greater opportunity to achieve its

basic mandate, namely, to ascertain whether the

claims of native Hawaiians had any moral legitim acy,

and, if so, what remedy should be fashioned. -3 1 -

On the contrary, the principal exercise of

the preparers of the Report has been to examine

the validity and via bility of the claims of native

Hawaiians under the statutory and decisional law

applicable to the claims of American Indian tribes.

This approach is both inappropriate and illo g ica l.

The Indian Claims Commission Act was adopted for

the purpose of resolving the historic claims of

American Indian tribes; the determination of claims brought under that Act considered, took into account

and was influenced by the American Indian cultural,

historical and political experience.

The body of law created in the determination

of American Indian tribal claims was reflective of

the American Indian experience. It was not necessarily

reflective of the cultural and historic experience of

other groups, such as the native Hawaiians, and,

sim ilarly, it could not be expected that a body of

law designed to provide a forum for determination

of American Indian trib a l claims would be adequate

to resolve the claims of a completely different

ethnic group.

There can be no question as to the substantial cultural, political and historical differences between American Indian tribes generally and the - 3 2 -

native Hawaiians. For one thing, the native

Hawaiians were much further along in p o litica l development, having, at the c ritic a l times covered by the Report, a ll the rudiments of modern political society, e.g., a written constitution, elected representatives, codes of laws, courts, etc. Unlike American Indian tribes, the Kingdom of Hawaii was recognized as an independent nation by most of the leading

Western nations. The Supreme Court has observed that, before annexation, "Hawaii had existed independent from the rest of the world and sovereign as far back as history and local tradition reaches."

United States v. Fullard-Leo, 331 U.S. 256, 265 (1948).

In that same case, the Court also significantly observed: "We are not dealing with an explorer's claim of title to land of a savage tribe or that of a discoverer of a hitherto unknown isle t."

Id. at 268.

These differences alone are so substantial, indeed fundamental, that it should have been immediately obvious that the legislative solution and the decisional principles adopted for American

Indian tribal claims could not be adopted in toto, without m odification, for dealing with the claims -3 3 -

of native Hawaiians. These precedents could certainly have served as a legitim ate starting point, but they should not have lim ited the scope of Commission consideration.

The preparers of the Report devoted much of their energy and effort to demonstrating that the claims of the native Hawaiians did not meet a ll of prerequisites of the "aboriginal title " and

"recognized title " concepts developed for determination of American Indian claims. Had they focused more on the rationale underlying these concepts, rather than technical niceties, they would have perceived that these concepts reflected a common-sense approach to resolving the particular claims under consideration and that the decisional concepts were in large part molded and influenced by the historic and cultural experience of the claimants. There is no common- law concept or doctrine of "aboriginal title ".

Instead, this concept was specifically developed to deal with the unique claims of American Indian trib e s.

There is no compelling reason in law, logic or policy to require that the claims of the native

Hawaiians, a wholly different group with wholly different historic and cultural experiences, be -3 4 -

either evaluated or adjudged under decisional

principles framed for and tailored to Indian

tribal claims. In several instances in the

Report, it is concluded that the claims of

native Hawaiians, for some reason or other,

could not be brought under the Indian Claims

Commission Act.16 The significance of the

Indian Claims Commission Act was an historica l

precedent; it represented a humane and compassionate

act designed to provide some remedy -- albeit

imperfect -- for historical wrongs committed or

permitted by the central government against a weak

and dependent people. Viewed in this perspective

(and not as representing the only available

procedure), the history of the litigation of

American Indian claims can provide some real

guidance to the framing of an appropriate

remedy for the claims of native Hawaiians.

2) The Commission was ill-advised to have the Department

of Justice perform the "legal analysis" for the claims

lia b ility section. By virtue of past experience (if

not institutional bias), the Department of Justice is

16/ For example, it is asserted at pp. 233, 236 and 238 that the claims of the native Hawaiians cannot be considered under that Act because they were not file d before the claims cut-off of 1951 - hardly an astute or helpful observation. -3 5 -

not predisposed to concluding affirm atively on the

existence of lia b ility on the part of the federal

government or to discussing the most like ly

rationales for appending lia b ility on the

government. Again, without seeking to cast any

aspersions on the integrity of the Department of

Justice personnel, I feel that the Commission

should have entrusted this sensitive task to

more independent (and perhaps more im aginative)

source. Asking the Department of Justice to

prepare this analysis is akin to requesting the

legal department of American Telephone and

Telegraph to provide an objective analysis of

the merits of telecommunications divestiture

legislation.

3) The Report's analysis of existing law in support

of its finding that there is no basis for Government

lia b ility is faulty.

Throughout the Report, it is maintained that

there can be no lia b ility unless the United States

its e lf acted to cause the extinguishment of

aboriginal title , i.e ., if aboriginal title was

extinguished by the Provisional Government, the

United States has no lia b ility . This assertion

ignores several cases decided under the Indian -3 6 -

Claims Commission Act which have held the United

States liable where it condoned and ra tifie d acts of others resulting in a taking of Indian lands.

For example, in United States v. Fort S ill Apache

Tribe, 533 F.2d 531 (Ct. Cl. 1976), the court held that the United States can be liable for the acts of third parties if these acts "can be imputed to the United States and are deemed in contemplation of law to be the acts of the United States." Id. at 534. The court noted that it had been held that acts would be imputed to the United States, thus constituting a constitutional taking, when

(a) the United States m ilitary protected the third-party trespasses, and (b) United States law recognized or retroactively validated the title s of the trespassers. Ibid.; See also

Temoak Band of Western Shoshone Indians v. United

States, 593 F.2d 994 (Ct. C l.), cert, denied,

444 U.S. 973 (1979); United States v. Northern

Paiute Nation, 393 F.2d 786 (Ct. Cl. 1968).

In United States v. Northern Paiute Nation,

490 F.2d 954 (Ct. Cl. 1974), the court explained that the retroactive validation of the title of third-party trespassers by the United States had the same legal effect as if it had formally -3 7 -

authorized the trespass:

/F/or purposes of the instant claims, the miners' acts cannot now be regarded as torts of third parties. By subsequent ra tifica tio n and adoption they are made acts of the United States . . . . /W/hen the United States adopts and ra tifie s a wrong against an Indian tribe, even though it was unauthorized and tortious originally, the ratification makes it an act of the United States . . . . /Id. at 958./

The historical record provides more than ample

factual support for a finding that the United States

condoned, if not actively participated in the

rebellion of the American expatriate group which

usurped the Kingdom of Hawaii. There can be no

question that, subsequent to the revolt, the United

States, through recognition of the Provisional

Government and assumption of a de facto "protectorate"

over Hawaii (Report, pp. 196-97), can be said to have

ratified the acts of the revolutionaries and adopted

them as its own.17

The preparers of the Report also make much of

the fact that significant amounts of Crown lands

and Government lands were leased to foreigners,

17/ Indeed, it could be argued that the United States exercised some measure of control over the Hawaiian Islands long before annexation. In the controversial Morgan Report (S. Rep. No. 227, 53d Cong., 2d Sess. (1894)), it was acknowledged that "Hawaii has been a ll the time under a virtual suzerainty of the United States, which is, by an apt and fam iliar definition, a paramount authority, not in any actual sense an sovereignty, but a de facto supremacy over the country." Id., at XXI. -3 8 -

contending that somehow this fact reflects a defeasance of the title of native Hawaiians or a defect therein. This view is incorrect for several reasons. First, a lessee's right is dependent on and not adverse to that of the lessor. Indeed, the lease itse lf is a formal acknowledgement by the lessee of the superior title of the lessor. Given this circumstance, it is d iffic u lt to understand how the leasing of

Crown and Government lands can defeat the claims of native Hawaiians. If, as I shall note below, these lands were held and administered in trust for a ll native Hawaiians, the leasing thereof was. nothing more than an incident of ownership, an ownership which was acknowledged by the lessees.

Secondly, under the Indian Claims Commission

Act, there is an analogous doctrine sanctioning the permissive use of aboriginal lands by another group, without loss of aboriginal title . This concept is known as the doctrine of permissive use; it provides that where one dominant tribe permits another tribe to use its lands with the express understanding that the user is a guest, such permissive use does not affect the dominant tribe's aboriginal title . See Caddo Tribe v. -3 9 -

United States, 35 Ind. Cl. Com. 321, 341-42 (1975).

Thus, there exists even under claims law a precedent for the leasing of Crown and Government lands to foreigners.

Based upon the foregoing, it seems clear that the reliance on leases to foreigners as constituting a defect in the title claims of native Hawaiians is without m erit, and, to the extent that the conclusions of the Report are based thereon, they are incorrect.

While reference to the experience of American

Indian tribes and Alaskan natives is helpful to an understanding of the complexities of aboriginal claims, I believe it would also have been helpful for the preparers of the Report to have considered, if only tangentially, the historical treatment of land title s conferred by foreign governments to lands subsequently annexed by or ceded to the

United States. In that regard, it appears to have been the uniform rule that the United States would accept the validity of foreign land grants. The

Supreme Court has observed that this is a basic tenet of the law of civilized nations:

It may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and fe lt by the whole civilized world would be -4 0 -

outraged if private property should be generally confiscated and private rights annulled . . . . A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him . . . . The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass the sovereignty only, and not to interfere with private property. /United States v. Percheman, 32 U.S. (7 Pet.) 51, 86-87 (1833)^/

The communal rights of native Hawaiians granted

them by the Constitution of the Kingdom of Hawaii

and subsequent legislation are of no less dignity

than the Spanish land grants recognized in the

Percheman case or the many other foreign grants which the United States has recognized in ceded or

annexed territories. Concomitantly, they are no more susceptible to divestiture without compensation.

It seems to me that the best claim of the

native Hawaiians is to the Crown and Government

lands which were ceded to the United States upon

annexation. Without getting into a ll the

complexities of the Hawaiian land tenure system,

it seems clear that, prior to the arrival of

Westerners, the system was largely feudal in

nature, with "title ” flowing from the King and -4 1 -

his chiefs. Written confirmation of the rights of

native Hawaiians in lands came with the Constitution

of 1840 where it was stated in effect that the

land belonged to the chiefs and people in common,

with the King acting as a trustee.18

It has been observed that "after the constitution

of 1840, holdings of the king, chiefs and commoners

were intertwined and undivided".19 The commonality

of interests was confirmed in the Great Mahele of

1848 in which the King set aside "Government Lands"

of some 1.5 m illion acres "forever to the chiefs

and p e o p le o f my k in g d o m ".

A sound argument can be made that the native

Hawaiians retained a communal interest in the

Government lands and the Crown lands20 and that

divestiture of their rights thereto through

annexation and preceding acts gave rise to a claim

against the United States for which they should be

provided compensation.

18/A Congressional Research Service study concluded that this provision constituted "the basis of Hawaii's modern land system." See Hearings Before the Senate Commerce Committee on Interior and Insular A ffairs on S.J. Res. 155, 94th Cong., 2d Sess. 287 (1976). 19/Levy, Native Hawaiian Lane. Rights, 63 Cal. L. Rev. 843, 853 (1975). 20/In Liliuokalani v. United States, 45 Ct. C l., 418 (1910), the court held that the Crown lands were not the private property of the sovereign, but rather went with the office. Thus, when the office ceased to exist, the Crown lands became as other public lands (e.g ., Government lands) and became part of the public domain. DANIEL K INOUYE Prince Kuhio Federal. B uilding HAWAII R o o m 6104, 300 Ala Moana Boulevard Honolulu, Hawaii 96850 (808) 546-7550 United States Senate

ROOM 105. RUSSELL SENATE BUILDING WASHINGTON. D.C. 20510 (202) 224-3934

November 23, 1982

The Native Hawaiians Study Commission Department of the Interior 18th and C Streets, N.W. Room 6220 Washington, D.C. 20240

D ear S ir s :

Enclosed is one copy of my comments on the Draft Report of Findings of the Native Hawaiians Study Commission. I ask that it be made part of the public record of the Commission. A lo h a ,

DANIEL K. INOUYE United States Senator

D K I: jm p l E n c lo s u re COMMENTS BY SENATOR DANIEL K. INOUYE

THE DRAFT REPORT OF FINDINGS OF

THE NATIVE HAWAIIANS STUDY COMMISSION

NOVEMBER 23, 1982 TABLE OF CONTENTS

PART I . Page

A. Preliminary Statement ...... 1

B. Conclusion...... 2

C. Summary of Arguments...... 2

H istorical Review ...... 3

Legal A nalysis...... 3

PART II. H istorical Review

A. Methodology...... 7

B. Bayonet Constitution of 1887...... 14

C. Role of the United States Government R e la t iv e to th e A n n e x a t io n is t s ...... 18

D. Role of the United States Government in the Revolution of 1893...... 20

E. Use of Facts ...... 23

F. International Law ...... 26 PART I

Pursuant to Public Law 96-565 and the September 23,

Notice of The Native Hawaiian Study Commission (Commission),

the following comments are submitted on the Draft Report of

Findings (Report) of the Commission.

The analysis and conclusions herein expressed represent my personal assessment of the Report and are in no way

intended to reflect the o fficia l position of the U.S. Senate or any of its Committees.

A. Preliminary Statement

The Report expressly states that a "fu ll review of

the history of United States relations with Hawaii is

essential to an evaluation of Hawaiian native claim s,"

and that an (im partial) "analysis of the causes of the

fa ll of the monarchy and annexation" are "crucial to this study." (p. 176). It also finds that "existing law provides no basis for compensation to native Hawaiians

for any loss of lands or loss of sovereignty." (p. 243).

The Commission's next step is "to consider whether

it should recommend that, as a matter of policy, taking a ll of the facts of (the) Report into account, Congress

should take action on compensation here." (p. 243).

I agree that "a fu ll review of the history" is

essential, and that im partial "analysis of the causes of the fa ll of the monarchy and annexation are crucial." - 2 -

However, by its failure to meet either stated goal, the

Report is, by its own standards, fatally flawed.

Moreover, inasmuch as the Commission's Report was to have been a "report of findings", im partially arrived at,

I question the appropriateness of selecting the Department of Justice to examine existing laws to determine whether

they provide a basis for compensation to native Hawaiians

for any loss of lands or loss of sovereignty.

This is also true of the use of a U.S. Naval Historian to buttress the Federal Government's claim of lack of culpability in the 1893 Revolution.

Aside from the question of im partiality, I also believe

the Report's analysis of existing law on the question of the

Government's lia b ility is faulty.

B. Conclusion

If the Report is adopted in substantially its present

form, the cause of the native Hawaiians w ill be severely damaged. No matter what the Commission may, as a matter of discretion, recommend in terms of remedial legislation,

the underlying "findings" concerning the right to re lie f of native Hawaiians w ill be so negative as to assure the defeat of any such remedial legislation.

C. Summary of Argument

The Report is neither a "fu ll review of the history of

United States relations with Hawaii," nor an im partial - 3 -

"analysis of the causes of the fa ll of the monarchy and annexation” .

1) Historical Review

(a) The Report is deficient in its historio

graphical methodology and provides no new

insights into outstanding historical issues.

It relies almost to ta lly on secondary sources

and there is no evidence of any attempt to

search several major archival sources. It

fails to deal with the specific adverse

conclusions in the Blount report, while

according equal cre d ib ility to the Morgan

report, which is highly suspect because of

the way in which it was prepared and because

it was not unanimous. There is little attempt

to place the revolution and the annexation in

a larger global diplomatic context, which in

turn greatly affected events in Hawaii.

Furthermore, while it was in the interest

of the Commission to preserve absolute

objectivity in the preparation of the Report

both in fact and in appearance, the assignment

of a United States Government employee to w rite

the history of an event in which the United

States is a party of interest w ill inevitably -4 -

raise questions about its objectivity. Finally,

there are several minor errors which should be

c o r r e c t e d .

(b) The Report fails to inquire into the possible

role of the United States Government in the

acceptance of the "Bayonet Constitution" of

1887, and in thwarting subsequent efforts by

native Hawaiians to overturn that Constitution

in 1889, and to revise it in 1890. It also

fails to consider the possibility of a cause-

and-effect relation between that Constitution

and the fa ll of the monarchy in 1893.

Government in encouraging the annexationists

(and therefore the rebellion) in 1892.

(d) The Report's fundamental conclusion as to

why the monarchy fe ll begs the question. It

may be that the fa ll of the monarchy was

"prim arily the result of a power struggle

between supporters of the monarchy and the

monied 'haoles'" (p. 188), but for purposes

of the Report, the question should be: was

the role of the U.S. Government significant

or decisive to the outcome?

(e) The Report's characterization of events during

the crucial days in January, 1893, which - 5 -

culminated in the fa ll of the monarchy and

recognition of the Provisional Government,

rests on a selective use of the facts regarding

the activities of the annexationists, U.S.

M inister Stevens, the U.S. Navy and Marines,

and Queen Liliuokalani.

(f) The Report fails to address the international

legal issues posed by revolution and the

involvement of the United States in the

Hawaiian Kingdom's overthrow. International

law attempts to prescribe certain principles

of conduct and to provide a framework for

the rule of law in international relations.

Since Hawaii was a sovereign nation, the United

States was obliged to conduct its relations

with the Royal Government in accordance with

accepted legal principles of the time. An

analysis indicates that the United States

M inister failed to do so and thereby fatally

compromised the Government of the United States.

2) Legal Analysis

(a) The Report's finding that there is no basis

in existing law for native Hawaiians to claim

compensation from the United States for loss

of land or sovereignty is irrelevant. The

task of the Commission was to ascertain - 6 -

whether a legislative remedy for native

Hawaiian claims was appropriate under the

circumstances, not to try to force-fit these

claims w ithin an existing legal framework.

Therefore, in this respect, the Commission's

focus was wide of the mark. Likewise, the

claims histories of other aboriginal groups,

while relevant, should not have fixed the

parameters of the Commission's inquiry. A

broader and less constrained perspective would

have afforded the Commission a greater opportunity

to achieve its basic mandate, namely, to ascertain

whether the claims of native Hawaiians had any

moral legitim acy, and, if so, what remedy should

be fashioned.

(b) Moreover, even if the question were in point,

given its institutional bias, the Department

of Justice was hardly the appropriate party

to perform the legal analysis on the question

of the Government's lia b ility for such claims.

law in support of its finding that there is

no basis for Government lia b ility is faulty. - 7 -

PART I I - HISTORICAL REVIEW

A. The Report is deficient in its historiographical methodology

and in historical interpretation. It is neither a "fu ll review

of this history of United States relations with Hawaii," nor

an im partial "analysis of the causes of the fa ll of the

monarchy and annexation".

1) The Report purports to be the "most complete compilation of data and inform ation on native Hawaiians that has ever been collected in one volume." (Preface)

However, its historical portions, especially the sensi tive Chapter II of Part II, rely almost to ta lly on secondary historical sources, principally Ralph S. Kuykendall's multi-volume

The Hawaiian Kingdom. The very few primary sources cited consist mainly of the Congressional Record, National Naval Archives, and

the Senate hearings and reports. I would note that there are

several major archives which could and should have been consulted,

including the following:

University of Hawaii Library, Hawaiian Collection

Diary of W illiam R. Castle, one of the five annexationist commissioners sent to Washington.

Library of Congress, Manuscript Division

Papers of the following individuals connected with the

Hawaiian situation: Thomas F. Bayard, Secretary of State; President

Grover Cleveland; John W. Foster, Secretary of State; -8-

Walter Q. Gresham, Secretary of State; Senator John T. Morgan;

Richard Olney, Secretary of State; and Senator John Sherman.

Maine H istorical Society, Portland

Papers of John L. Stevens, United States M inister to Hawaii.

Massachusetts H istorical Society, Boston

Papers of Senator Henry Cabot Lodge.

National Archives, Record Group 59 General Records of the Department of State

This file contains diplomatic instructions, dispatches, and notes for period under discussion.

Stanford University Library, Stanford, California Department of Special CollectionsT

Papers of Senator Stephen M. White.

State Archives of Hawaii, Honolulu, Hawaii

This file contains the letterbook of the Executive Council of the Provisional Government of 1893; the papers of Francis M.

Hatch (annexationist), Lorrin A. Thurston, Stanford B. Dole,

W illiam 0. Smith (annexationist), and Queen Liliuokalani.

It is likely that other archival resources exist, but the constraints imposed by the Commission's deadline for public comment preclude a more comprehensive search at this time.

The overreliance on secondary sources has resulted in a report that only reinforces the standard and narrow perspective with no new insights into the controversial activities of the revolutionaries prior to and during the 1893 Revolution and of

American M inister John Stevens and the sequence of events of - 9 -

January 17, 1893. I agree that Chapter II of Part II is

"particularly sensitive and crucial to this study," and for

that reason new, original in itiatives should have been under

taken by the Commission to attempt to provide a definitive

account of this period.

2) The bias of the Report is most apparent when it

accords the so-called "Morgan Report" (Report of the U.S.

Senate Committee on Foreign Relations Relative to Hawaiian

Matters, S. Rept. 52-227 2d, Sess. 1894) virtu a lly equivalent

historical va lid ity as the Blount Report (House Executive Doc.

No. 47, 53rd Congress, 2d Sess.). Although the draft Commission

report correctly notes that the objectivity of both reports

has been questioned, there are substantial differences between

the methods by which the contradictory conclusions of the two

reports were reached.

(a) The Morgan Committee never conducted hearings

in Hawaii, unlike Commissioner James Blount

who spent more than four months conducting

an on-site investigation into the revolution.

(b) Commissioner Blount interviewed parties on both

sides of the conflict and produced a detailed

and exhaustive document. As has noted by a

diplomatic historian,"... the factual background

of its story of the revolution cannot easily be -1 0 -

disputed."1

The Hawaiian side was neither presented nor explained except by Blount. Furthermore, only Morgan endorsed a ll the report's conclusions, and the members sp lit according to party a ffilia tio n .

3) The revolution and the subsequent annexation of Hawaii by the United States occurred at a time of American expansion in the Pacific and Caribbean, culminating in a decade in which the

1/ Dulles, Foster Rhea. America on the Pacific: A Decade of Expansion, New York, Da Capo Press, 1969, p. 179. 2/ Tate, Merze, The United States and the Hawaiian Kingdom, New Haven, Yale Univ. Press, 1965, pp. 252-253. -1 1 -

United States acquired Hawaii, Samoa, Puerto Rico, the

Hawaiian annexation. W illiam Michael Morgan, in an article in

Thomas J. Osborne in his book "Empire Can W ait" American

Hawaiian commerce, were decisive factors contributing to the annexation of Hawaii in 1898.

Older accounts to which no reference is made include

Thomas Bailey, A Diplomatic History of the American People;

Foster Rhea Dulles, America on the Pacific: A Century of Expansion and W illiam Russ, The Hawaiian Revolution.

Hawaii-United States Reciprocity Treaty of 1875.

4) The Commission was directed to draft an impartial report.

The processes of democratic government must be fa ir in fact and give the appearance of fairness. Because the United States

Without impugning the in teg rity or professional competence

of the writers, I must emphasize that the United States Govern ment has a direct economic and p o litica l stake in disproving

the basis for a claim for Hawaiian reparations or compensation.

By giving a United States Government employee the responsibility

for w riting the historical chapters of the Report, the Commission

has created understandable doubts as to whether agents of the

American Government can provide an objective and trustworthy

historical assessment of this period which might contradict the

interests of their employer.

Moreover, it appears that the writers failed to solicit the

views of other professional historians who specialize in this

period and area. Consequently, the draft represents the work

of a two-person team without the substantive contribution which

others could have made if they had been presented with the

opportunity to review the draft. Even though the Report is now

open to comment and possible revision, it is my impression that

the procedures followed indicate an unwillingness to submit

these findings to private professional critique.

5) There is a minor factual error on page 195. It was

Henry E. Cooper, not H.E. Carter, who read the proclamation of

the new government. Also, there is a misleading sentence on

page 197, which states that a "fact-finding commission headed

by Representative James Blount arrived at the Islands", implying

that there were several members on the commission which in fact -1 4 -

consisted of only one person. On page 190, the authors mean

the election of 1892, not 1893.

B. A fu ll and fair understanding of political and legal

developments in the Kingdom of Hawaii during the c ritic a l

years covered by the Report must take into account the

tremendous external and internal pressures exerted on the

Kingdom at that time. First, it is to be remembered that

the Kingdom of Hawaii was relative ly new to the ways and wiles

of the Western world. Second, it was vulnerable to the pressures

of a very aggressive alien resident class, particularly the

American expatriate element and to the pressures of foreign

nations, notably the United States. Third, the Hawaiian Kingdom was undergoing dramatic social and p o litica l changes, as is the case with a ll developing nations.

A ll of these pressures had to have some impact on the

Kingdom of Hawaii and its a b ility to control its own affairs.

The Report fails to inquire into: (a) the possible role of the United States Government in the acceptance of the "Bayonet

We know, for example, that King Kalakaua sought the advice of the United States M inister on July 27, i887, when he was faced with the prospect of a revolution led by the Committee of Thirteen.

States M inister told the ruling monarch of the Kingdom of Hawaii

that he must stop meddling in the public affairs of his Kingdom.

Four days later, in a final effort to preserve the monarchy,

King Kalakaua called in the ministers of the major powers,

including the United States M inister, to te ll them the country was being taken over and that "he wanted to place the kingdom

in their hands." They refused to accept. It seems to me that

the attitude of the U.S. M inister suggests the real possibility

that the United States may have aided or at least ta c itly encouraged

the revolutionary activities of the Committee of Thirteen.

The Report expressly recognizes that the interval between

the Constitution of 1887 and the installm ent of the Provisional

Government in 1893 was marked with sporadic attempts by native

Hawaiians to regain some measure of their power. But here again

there is no attempt to assess the role, if any, of the United

States in thwarting these attempts.

With respect to the attempt in 1889 to overturn the

Constitution, a ll the Report tells us is that "the insurrection

was quelled". The Report also admits that the American and

B ritish m inisters "persuaded" King Kalakaua to disavow his

previous public support of efforts in the following year to

revise the Constitution. The Report expressly recognizes that a

United States naval squadron was in Hawaii in 1890, and its

Commander, Rear Admiral George Brown, was prepared to move in

the event the attempt to revise the Constitution materialized. -1 7 -

Clearly, there is much more to say about the role and influence of the United States during the period 1887-1893, and the Report simply fails to address this issue.

the "Bayonet Constitution ended much of the monarchy's power and effectively brought control of the Government within the

sphere of the planters and merchants."

The Report states that "The Constitution of 1887 was a key

in the changing scope of Hawaiian p o litics." Among other things,

its provisions had the effect of placing the legislature in the

hands of the Reform Party, which was made up largely of Hawaiian-born

Americans and Europeans, and resident foreigners.

The Reformers also set themselves to remove every trace of

King Kalakaua's influence in the running of the Kingdom. There

was, for example, a wholesale purge of the Government service;

the board of genealogists, and the native Hawaiian board of health

were abolished; the control of the Kingdom's armed forces was

taken from the royal Generalissimo and g iven to the m inister of

foreign affairs; and the young Hawaiians being educated in Europe

were ordered home. According to one historian, the effect of a ll -1 8 - of this was to "knock Kalakaua over and bind him hand and fo o t."3

C. The Report ignores the role of the U.S. Government in

encouraging the annexationists in 1892.

Early in 1892, the Annexationist Club was formed to counter act what its members believed was a like ly effort by Queen

Liliuokalani to move against the Constitution of 1887. Formation of the Club was initiated by Lorrin Thurston, and included many of the American expatriates who framed the Constitution of 1887.

Lorrin Thurston believed that foreigners with a financial invest ment in the Kingdom and permanent settlers favored annexation,

3/ Daws, Gavan. Shoal of Time, New York, The MacMillan Co., 1968, p. 253. 4/ Daws, id., p. 266. -1 9 - while the common natives and the Queen and her faction were o p p o s e d .

Inasmuch as the Committee of Safety, which brought about the fa ll of the monarchy was a direct outgrowth of the Annexationist

Club, I believe it is relevant to ask whether the United States

"Thurston... visit(ed) Washington... (to) see what the statesmen there thought about taking the Hawaiian Islands... Secretary of State James Blaine was cordial, and Secretary of the Navy Benjamin Tracy passed on to Thurston some encouraging words from President Harrison -- that 'if conditions in Hawaii compel you to act as you have indicated, and you come to Washington with an annexation proposition, you w ill find an exceedingly sympathetic adm inistration here.1’1

If nothing more, the reception Lorrin Thurston received in o ffic ia l Washington did nothing to discourage the annexationists.

5/ Daws, id., p. 266. -2 0 -

D. The Report begs the fundamental question: Was the role of

the United States significant or decisive in bringing about

the downfall of the monarchy? If it was, then it seems to me that moral case for reparations becomes significantly stronger and perhaps decisive.

The Report concludes that the fa ll of the monarchy was

6/ Kuykendall, Ralph S., Hawaiian Kingdom. Vols, I-III, Honolulu, University of Hawaii Press, 1967. Hereafter referred to as Kuykendall. Kuykendall states that there can be no doubt that Stevens was dedicated to annexation and overeager to recognize the provisional government. P. 629. - 21 - and convinced its supporters that the United States supported the revolutionaries (p. 194).

Deliberately omitted is the fact that the Hawaiian army was scattered throughout the Kingdom and was not concentrated in

Honolulu. Nor was it capable of opposing well-trained foreign forces. Furthermore, the authors' estimate of the size of the

First, with respect to the activities of Stevens, it was known that he was strongly pro-annexationist. Second, he had

7/ Kuykendall, id., p. 605. -2 2 -

secret meetings with members of the Committee of Safety, which was composed of members of the old Annexationist Club. The Report

fa ils to mention that Stevens may have done more than indicate to the Committee members a willingness to recognize a provisional government. He also apparently offered his opinion of the Queen as a revolutionary who had committed an ille g a l act.8 Such gratuitous language was inflammatory and was obviously calculated to encourage the revolutionaries.

Moreover, the Report conveniently omits the fact that the

Committee members also apparently sought the support of Captain

W iltse, who, one historian reports,seemed to approve of the

Committee's plans.9 On Monday, January 16, 1893, the Committee sent a letter to Stevens requesting the protection of American

forces. Thus, a carefully scripted pretext for American inter vention was set into motion with the fu ll knowledge and cooperation of the commander of the U.S.S. Boston and the American M inister.

No historian, however biased, has ever been able to discern a

threat to the lives or property of foreigners from Queen

8/ Kuykendall, id ., p. 588 9/ Kuykendall, id ., p. 588 -2 3 - were known as early as Sunday, January 15th (p. 192), and the reality of the "threat" must be seriously questioned. The threat of violence was fabricated and served as a convenient excuse to s o licit armed American support. The entire revolution was accomplished without a single life being lost and with only a

few rounds of ammunition expended.

I believe that the historical record lends credence to the belief that the American involvement was significant, substantive,

and perhaps decisive. The p o litica l turm oil created by the attempt of monarchists to reassert their sovereignty relative to

foreigners and local monied "haoles" was not marked by violence.

Nevertheless, there developed a coincidence of interests by the revolutionaries and pro-annexationist American o fficia ls to use

the opportunity to land American troops, thereby neutralizing any effective response to the revolution by the Royal Government.

One can only conclude that the United States, as represented by

its agents in Honolulu, was an active participant in and a p o liti cal beneficiary of the revolution which eventually resulted in

Hawaii's annexation as a territory in 1898.

E. The Report's characterization of the events during the period

January 14-17, 1893, culminating in the fa ll of the monarchy

and recognition of the Provisional Government, rests on a

selective use of facts regarding the activities of the

annexationists, American M inister Stevens, the United States

Navy and Marines, and Queen Liliuokalani. -24-

In 1891, Queen Liliuokalani succeeded to the throne, determined to stem the erosion of the monarchy's authority.

Beginning in early 1892, she began preparing to amend the

Constitution to more closely resemble the Constitution of 1864.

It was her attempt to promulgate a new constitution in January,

1893, that precipitated the formation of the Committee of

Safety, meetings between the revolutionaries and Stevens, and the revolution itse lf.

There was no danger to any lives or property and hence no justification for the landing of the forces from the U.S.S.

Building, away from the concentration of American property. -2 5 -

There were many factors which contributed to the revolution, and the economic issue was but one of them. In addition to the strategic value of Hawaii, which was expounded by Alfred Thayer

The history of the Hawaiian Republic is relegated to a few sentences, but it is worth examining in greater detail because it casts doubts on the noble sentiments expressed by the revolutionaries. In practice, the ensuing Republic, ruled by an oligarchy and operating under a restricted franchise,proved to be less democratic and less free than its American model.

Finally, I do not believe that Part II of Chapter II adequately relates the significance of this history to the

"concerns" of Native Hawaiians as mandated in P.L. 96-565. An accurate historical account is important not only for its legal im plications but also because it helps to explain why so many

Hawaiians and part-Hawaiians became alienated from p o litics and life in the post-monarchy period. The destruction of the monarchy, failed restoration attempt, and the curtailment of the franchise

10/ Kuykendall, id., p. 634; Daws, Gavan, id., p. 277. -26- effectively terminated the right of the Hawaiian majority to

control the fate of their land. It is only against this

background of political disenfranchisement that the statistics recounted in Part I can be understood.

F. The role played by the United States, through its Minister

John Stevens and its armed forces aboard the U.S.S. Boston,

is of paramount importance since a violation of accepted

international legal behavior would make the United States

accountable for remedying the actions which violated the

law. This was, in fact, the finding of the investigation

conducted by Commissioner James Blount and communicated by

President Cleveland to the Congress on December 18, 1893, (noted on p. 198 of the Report).

1) Acts of a State’s agents and organs. The American representative to the Kingdom of Hawaii was Minister John Stevens.

International law deems acts of state officials and organs as

"acts of the State” for purposes of determining the State's inter national responsibility.11 Thus, Stevens’ actions, which were

conducted in behalf of the United States, even if not specifically

directed by the Department of State or the President, constituted

an act of State and thereby laid international responsibility for them on the Government of the United States.

11/ Yearbook of the International Law Commission, Volume II, Articles 5 and 10 (1973 and 1975). -2 7 -

Among the a ctivities of the Boston troops and Stevens on

January 16th and 17th were those which clearly could be construed as representing the authority of the United States Government.

The events included the follow ing: meetings between Stevens and the Committee of Safety; landing of U.S. troops on January 16, 1893, and their deployment in Honolulu; and recognition of the provi sional government by Stevens prior to its gaining control over a ll m ilitary strongholds and the abdication of the Queen.

As the Report acknowledges, Stevens was known to have strong annexationist views (p. 192). Furthermore, the landing of the troops naturally provided psychological support to the revolu tionaries (p. 194) and probably had the effect of intim idating the Royal Government (pp. 194-195).

2) State practice of recognition. In the nineteenth century, the United States generally followed the practice of extending recognition to the person or persons m control of the government.12

This apparently was also the understanding of the Department of

State, whose international law Digest, claims

"(N)or was any public recognition accorded to the provisional government by the United States m inister u n til the Queen had abdicated and the provisional government had secured 'effective possession of the government buildings, the archives, the treasury, the barracks, the police station, and a ll potential machinery of the government.'"13

12/ T. Chen , The International Law of Recognition, pp. 103-130, (1951). 13/ J.B. Moore, Digest of International Law 498 (1906). -2 8

In fact, this account was incorrect, for recognition by-

Stevens preceded the surrender of the police station and the

abdication of the Queen.

Therefore, by any measure, the American recognition of the new provisional government was premature and unjustified by

events or under international law as then practiced. Stevens, as

the representative of the United States, had other legal a lter natives available besides de facto recognition, including

recognition of "belligerency” and "insurgency", both of which maintain a State's position of neutrality.14 That he did not

do so at a period when facts were unclear and the course of

events unsettled is indicative of his wanton disregard for inter national legal practice.

3) The duty of a State to avoid intervention in the

domestic affairs of another State. It is a firm ly established

principle in international law that a State may not interfere in

the domestic affairs of another sovereign State.15

14/ American Law Institute, Restatement (Second) of the Foreign Relations Law of the~United States, 94 (1965), Comment e. 15/ See, e.g., Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, General Assembly Resolution 2625, October 24, 1970, U.N. Monthly Chronicle, 99, 1 0 2 -1 0 3 . - 2 9 -

I have noted that under international law Stevens was an

agent of the United States Government, that recognition of the provisional government was extended in a manner contrary to

contemporary American practice and inconsistent with the prevailing political situation, and that such intervention in

the domestic affairs of another country was contrary to in ter national law. The legal analysis is addressed in Part III. -3 0 -

PART I I I - LEGAL ANALYSIS

The Report's finding that there is no basis in existing law for native Hawaiians to claim compensation from the United

States for loss of land or sovereignty is irrelevant. Moreover, even if the question were in point, given its institutional bias, the Department of Justice was hardly the appropriate party to perform the legal analysis on the question of the Government's lia b ility for such claims. In any event, the Report's analysis of existing law is faulty.

1) It seems to me that the task of the Commission was

to ascertain whether a legislative remedy for native

Hawaiian claims was appropriate under the circumstances,

not to try to force-fit these claims within an existing

legal framework. It would appear self-evident that, if

there already existed a forum and procedure for

determination of these claims, they would have been

disposed of long ago. In this respect, it appears

that the Commission's focus was wide of the mark.

Likewise, the claims histories of other aboriginal

groups, while relevant, should not have fixed the

parameters of the Commission's inquiry. A broader

and less constrained perspective would have afforded

the Commission a greater opportunity to achieve its

basic mandate, namely, to ascertain whether the

claims of native Hawaiians had any moral legitim acy,

and, if so, what remedy should be fashioned. -3 1 -

On the contrary, the principal exercise of the preparers of the Report has been to examine the validity and via b ility of the claims of native

Hawaiians under the statutory and decisional law applicable to the claims of American Indian tribes.

This approach is both inappropriate and illo g ica l.

The Indian Claims Commission Act was adopted for the purpose of resolving the historic claims of

American Indian tribes; the determination of claims brought under that Act considered, took into account and was influenced by the American Indian cultural, historical and political experience.

The body of law created in the determination of American Indian trib a l claims was reflective of the American Indian experience. It was not necessarily reflective of the cultural and historic experience of other groups, such as the native Hawaiians, and, sim ilarly, it could not be expected that a body of law designed to provide a forum for determination of American Indian trib a l claims would be adequate to resolve the claims of a completely different ethnic group.

There can be no question as to the substantial cultural, political and historical differences between American Indian tribes generally and the -3 2 -

native Hawaiians. For one thing, the native

Hawaiians were much further along in p o litica l

development, having, at the c ritic a l times

covered by the Report, a ll the rudiments of

modern political society, e.g., a written

constitution, elected representatives, codes

of laws, courts, etc. Unlike American Indian

tribes, the Kingdom of Hawaii was recognized as

an independent nation by most of the leading

Western nations. The Supreme Court has observed

that, before annexation, "Hawaii had existed

independent from the rest of the world and sovereign

as far back as history and local tradition reaches."

United States v. Fullard-Leo, 331 U.S. 256, 265 (1948).

In that same case, the Court also significantly

observed: "We are not dealing with an explorer's

claim of title to land of a savage tribe or that

of a discoverer of a hitherto unknown is le t."

Id. at 268.

These differences alone are so substantial,

indeed fundamental, that it should have been

immediately obvious that the legislative solution

and the decisional principles adopted for American

Indian tribal claims could not be adopted in toto, without m odification, for dealing with the claims -3 3 -

of native Hawaiians. These precedents could

certainly have served as a legitim ate starting point, but they should not have lim ited the scope

of Commission consideration.

The preparers of the Report devoted much of

their energy and effort to demonstrating that the

claims of the native Hawaiians did not meet a ll of prerequisites of the "aboriginal title " and

"recognized title " concepts developed for

determination of American Indian claims. Had

they focused more on the rationale underlying

these concepts, rather than technical niceties,

they would have perceived that these concepts

reflected a common-sense approach to resolving

the particular claims under consideration and

that the decisional concepts were in large part molded and influenced by the historic and cultural

experience of the claimants. There is no common-

law concept or doctrine of "aboriginal title ".

Instead, this concept was specifically developed to

deal with the unique claims of American Indian trib e s.

There is no compelling reason in law, logic

or policy to require that the claims of the native

Hawaiians, a wholly different group with wholly

different historic and cultural experiences, be -3 4 -

either evaluated or adjudged under decisional

principles framed for and tailored to Indian

tribal claims. In several instances in the

Report, it is concluded that the claims of

native Hawaiians, for some reason or other,

could not be brought under the Indian Claims

Commission Act.16 The significance of the

Indian Claims Commission Act was an historica l

precedent; it represented a humane and compassionate

act designed to provide some remedy -- albeit

imperfect -- for historical wrongs committed or

permitted by the central government against a weak

and dependent people. Viewed in this perspective

(and not as representing the only available

procedure), the history of the litigation of

American Indian claims can provide some real

guidance to the framing of an appropriate

remedy for the claims of native Hawaiians.

2) The Commission was ill-advised to have the Department

of Justice perform the "legal analysis" for the claims

lia b ility section. By virtue of past experience (if

not institutional bias), the Department of Justice is

no t predisposed to concluding affirm atively on the

existence of lia b ility on the part of the federal

government or to discussing the most like ly

rationales for appending lia b ility on the

government. Again, without seeking to cast any

aspersions on the integrity of the Department of

Justice personnel, I feel that the Commission

should have entrusted this sensitive task to

more independent (and perhaps more im aginative)

source. Asking the Department of Justice to

prepare this analysis is akin to requesting the

legal department of American Telephone and

Telegraph to provide an objective analysis of

the merits of telecommunications divestiture

legislation.

3) The Report's analysis of existing law in support

of its finding that there is no basis for Government

lia b ility is faulty.

Throughout the Report, it is maintained that

there can be no lia b ility unless the United States

its e lf acted to cause the extinguishment of

aboriginal title , i.e ., if aboriginal title was

extinguished by the Provisional Government, the

United States has no lia b ility . This assertion

ignores several cases decided under the Indian -3 6 -

Claims Commission Act which have held the. United

States liable where it condoned and ra tifie d acts of others resulting in a taking of Indian lands.

For example, in United States v. Fort S ill Apache

(a) the United States m ilitary protected the third-party trespasses, and (b) United States law recognized or retroactively validated the title s of the trespassers. Ibid.; See also

Temoak Band of Western Shoshone Indians v. United

States, 593 F.2d 994 (Ct. C l.), cert, denied,

444 U.S. 973 (1979); United States v. Northern

Paiute Nation, 393 F.2d 786 (Ct. Cl. 1968).

In United States v. Northern Paiute Nation,

490 F.2d 954 (Ct. Cl. 1974), the court explained that the retroactive validation of the title of third-party trespassers by the United States had the same legal effect as if it had formally -3 7 -

authorized the trespass:

/F/or purposes of the instant claims, the miners' acts cannot now be regarded as torts of third parties. By subsequent ra tifica tio n and adoption they are made acts of the United States . . . . /W/hen the United States adopts and ra tifie s a wrong against an Indian tribe, even though it was unauthorized and tortious originally, the ratification makes i t an act of the United States . . . . /Id. at 958./

The historical record provides more than ample

factual support for a finding that the United States

condoned, if not actively participated in the

rebellion of the American expatriate group which

usurped the Kingdom of Hawaii. There can be no

question that, subsequent to the revolt, the United

States, through recognition of the Provisional

Government and assumption of a de facto "protectorate"

over Hawaii (Report, pp. 196-97), can be said to have

ratified the acts of the revolutionaries and adopted

them as i t s o w n .17

The preparers of the Report also make much of

the fact that significant amounts of Crown lands

and Government lands were leased to foreigners,

Secondly, under the Indian Claims Commission

United States, 35 Ind. Cl. Com. 321, 341-42 (1975).

Thus, there exists even under claims law a precedent

for the leasing of Crown and Government lands to

foreigners.

Based upon the foregoing, it seems clear that

the reliance on leases to foreigners as constituting

a defect in the title claims of native Hawaiians is without m erit, and, to the extent that the conclusions

of the Report are based thereon, they are incorrect.

While reference to the experience of American

Indian tribes and Alaskan natives is helpful to an understanding of the complexities of aboriginal

claims, I believe it would also have been helpful

for the preparers of the Report to have considered,

if only tangentially, the historical treatment of

land title s conferred by foreign governments to

lands subsequently annexed by or ceded to the

United States. In that regard, it appears to have

been the uniform rule that the United States would

accept the validity of foreign land grants. The

Supreme Court has observed that this is a basic

tenet of the law of civilized nations:

The communal rights of native Hawaiians granted them by the Constitution of the Kingdom of Hawaii and subsequent legislation are of no less dignity than the Spanish land grants recognized in the

Percheman case or the many other foreign grants which the United States has recognized in ceded or annexed territories. Concomitantly, they are no more susceptible to divestiture without compensation.

It seems to me that the best claim of the native Hawaiians is to the Crown and Government lands which were ceded to the United States upon annexation. Without getting into a ll the complexities of the Hawaiian land tenure system, it seems clear that, prior to the arrival of

Westerners, the system was largely feudal in nature, with "title " flowing from the King and -4 1 -

his chiefs. Written confirmation of the rights of

native Hawaiians in lands came with the Constitution

of 1840 where it was stated in effect that the

land belonged to the chiefs and people in common,

with the King acting as a trustee.18

It has been observed that "after the constitution

of 1840, holdings of the king, chiefs and commoners

were intertwined and undivided".19 The commonality

of interests was confirmed in the Great Mahele of

1848 in which the King set aside "Government Lands"

of some 1.5 m illion acres "forever to the chiefs

and p e o p le o f my k in g d o m ".

A sound argument can be made that the native

Hawaiians retained a communal interest in the

Government lands and the Crown lands20 and that

divestiture of their rights thereto through

annexation and preceding acts gave rise to a claim

against the United States for which they should be

provided compensation.

18/ A Congressional Research Service study concluded that this provision constituted "the basis of Hawaii's modern land system." See Hearings Before the Senate Commerce Committee on Interior and Insular Affairs on S.J. Res. 155, 94th Cong., 2d Sess. 287 (1976). 19/ Levy, Native Hawaiian Land Rights, 63 Cal. L. Rev. 848, 853 (1975). 20/ In Liliuokalani v. United States, 45 Ct. C l., 418 (1910), the court held that the Crown lands were not the private property of the sovereign, but rather went with the office. Thus, when the office ceased to exist, the Crown lands became as other public lands (e .g ., Government lands) and became part of the public domain. COMMENTS BY SENATOR DANIEL K. INOUYE

THE DRAFT REPORT OF FINDINGS OF

THE NATIVE HAWAIIANS STUDY COMMISSION

NOVEMBER 23, 1982 TABLE OF CONTENTS

PART I . Page

A. Preliminary Statement ...... 1

B. Conclusion...... 2

C. Summary o f A rg u m e n ts...... 2

H istorical Review ...... 3

Legal Analysis ...... 3

PART II. H istorical Review

A. Methodology...... 7

B. Bayonet Constitution of 1887...... 14

C. Role of the United States Government Relative to the Annexationists ...... 18

D. Role of the United States Government in the Revolution of 1893...... 20

E. Use of Facts ...... 23

F. International Law ...... 26

PART III. Legal Analysis 30 PART I

Pursuant to Public Law 96-565 and the September 23,

Notice of The Native Hawaiian Study Commission (Commission), the following comments are submitted on the Draft Report of

Findings (Report) of the Commission.

The analysis and conclusions herein expressed represent my personal assessment of the Report and are in no way intended to reflect the o fficia l position of the U.S. Senate or any of its Committees.

A. Preliminary Statement

The Commission’s next step is "to consider whether it should recommend that, as a matter of policy, taking all of the facts of (the) Report into account, Congress should take action on compensation here." (p. 243).

I agree that "a fu ll review of the history" is essential, and that im partial "analysis of the causes of the fa ll of the monarchy and annexation are crucial." -2 -

However, by its failure to meet either stated goal, the

Report is, by its own standards, fatally flawed.

Moreover, inasmuch as the Commission’s Report was to have been a "report of findings" , im partially arrived at,

I question the appropriateness of selecting the Department of Justice to examine existing laws to determine whether

they provide a basis for compensation to native Hawaiians

for any loss of lands or loss of sovereignty.

This is also true of the use of a U.S. Naval Historian

to buttress the Federal Government's claim of lack of culpability in the 1893 Revolution.

Aside from the question of im partiality, I also believe

the Report's analysis of existing law on the question of the

Government's lia b ility is faulty.

B. Conclusion

If the Report is adopted in substantially its present

form, the cause of the native Hawaiians w ill be severely damaged. No matter what the Commission may, as a matter of discretion, recommend in terms of remedial legislation,

the underlying "findings” concerning the right to re lie f of native Hawaiians w ill be so negative as to assure the defeat of any such remedial legislation.

C. Summary of Argument

The Report is neither a "fu ll review of the history of

United States relations with Hawaii," nor an im partial -3 -

"analysis of the causes of the fa ll of the monarchy and annexation" .

1) Historical Review

(a) The Report is deficient in its historio

graphical methodology and provides no new

insights into outstanding historical issues.

It relies almost tota lly on secondary sources

and there is no evidence of any attempt to

search several major archival sources. It

fails to deal with the specific adverse

conclusions in the Blount report, while

according equal cre d ib ility to the Morgan

report, which is highly suspect because of

the way in which it was prepared and because

it was not unanimous. There is little attempt

to place the revolution and the annexation in

a larger global diplomatic context, which in

turn greatly affected events in Hawaii.

Furthermore, while it was in the interest

of the Commission to preserve absolute

objectivity in the preparation of the Report

both in fact and in appearance, the assignment

of a United States Government employee to w rite

the history of an event in which the United

States is a party of interest w ill inevitably - 4 -

raise questions about its objectivity. Finally,

there are several minor errors which should be

c o r r e c te d .

(b) The Report fails to inquire into the possible

role of the United States Government in the

acceptance of the "Bayonet Constitution" of

1887, and in thwarting subsequent efforts by

native Hawaiians to overturn that Constitution

in 1889, and to revise it in 1890. It also

fails to consider the possibility of a cause-

and-effect relation between that Constitution

and the fa ll of the monarchy in 1893.

Government in encouraging the annexationists

(and therefore the rebellion) in 1892.

(d) The Report's fundamental conclusion as to

why the monarchy fe ll begs the question. It

may be that the fa ll of the monarchy was

"prim arily the result of a power struggle

between supporters of the monarchy and the

monied 'haoles'" (p. 188), but for purposes

of the Report, the question should be: was

the role of the U.S. Government significant

or decisive to the outcome?

(e) The Report's characterization of events during

the crucial days in January, 1893, which - 5 -

culminated in the fa ll of the monarchy and

recognition of the Provisional Government,

rests on a selective use of the facts regarding

the activities of the annexationists, U.S.

M inister Stevens, the U.S. Navy and Marines,

and Queen Liliuokalani.

(f) The Report fails to address the international

legal issues posed by revolution and the

involvement of the United States in the

Hawaiian Kingdom’s overthrow. International

law attempts to prescribe certain principles

of conduct and to provide a framework for

the rule of law in international relations.

Since Hawaii was a sovereign nation, the United

States was obliged to conduct its relations

with the Royal Government in accordance with

accepted legal principles of the time. An

analysis indicates that the United States

M inister failed to do so and thereby fata lly

compromised the Government of the United States.

2) Legal Analysis

(a) The Report's finding that there is no basis

in existing law for native Hawaiians to claim

compensation from the United States for loss

of land or sovereignty is irrelevant. The

task of the Commission was to ascertain -6 -

whether a legislative remedy for native

Hawaiian claims was appropriate under the

circumstances, not to try to force-fit these

claims w ithin an existing legal framework.

Therefore, in this respect, the Commission's

focus was wide of the mark. Likewise, the

claims histories of other aboriginal groups,

while relevant, should not have fixed the

parameters of the Commission's inquiry. A

broader and less constrained perspective would

have afforded the Commission a greater opportunity

to achieve its basic mandate, namely, to ascertain

whether the claims of native Hawaiians had any

moral legitim acy, and, if so, what remedy should

be fashioned.

(b) Moreover, even if the question were in point,

given its institutional bias, the Department

of Justice was hardly the appropriate party

to perform the legal analysis on the question

of the Government’s lia b ility for such claims.

law in support of its finding that there is

no basis for Government lia b ility is faulty. -7 -

PART I I - HISTORICAL REVIEW

A. The Report is deficient in its historiographical methodology

and in historical interpretation. It is neither a "fu ll review

of this history of United States relations with Hawaii," nor

an im partial "analysis of the causes of the fa ll of the

monarchy and annexation".

1) The Report purports to be the "most complete compilation of data and information on native Hawaiians that has ever been

collected in one volume." (Preface)

However, its historical portions, especially the sensi

tive Chapter II of Part II, rely almost to ta lly on secondary

historical sources, principally Ralph S. Kuykendall’s multi-volume

The Hawaiian Kingdom. The very few primary sources cited consist mainly of the Congressional Record, National Naval Archives, and

the Senate hearings and reports. I would note that there are

several major archives which could and should have been consulted,

including the following:

University of Hawaii Library, Hawaiian Collection

Diary of William R. Castle, one of the five annexationist

commissioners sent to Washington.

Library of Congress, Manuscript Division

Papers of the following individuals connected with the

Hawaiian situation: Thomas F. Bayard, Secretary of State; President

Grover Cleveland; John W. Foster, Secretary of State; -8-

Walter Q. Gresham, Secretary of State; Senator John T. Morgan;

Richard Olney, Secretary of State; and Senator John Sherman.

Maine H istorical Society, Portland

Papers of John L. Stevens, United States M inister to Hawaii.

Massachusetts H istorical Society, Boston

Papers of Senator Henry Cabot Lodge.

National Archives, Record Group 59 General Records of the Department of State

This file contains diplomatic instructions, dispatches, and

notes for period under discussion.

Stanford University Library, Stanford, California Department of Special Collections"!

Papers of Senator Stephen M. White.

State Archives of Hawaii, Honolulu, Hawaii

This file contains the letterbook of the Executive Council

of the Provisional Government of 1893; the papers of Francis M.

Hatch (annexationist), Lorrin A. Thurston, Stanford B. Dole,

William 0. Smith (annexationist), and Queen Liliuokalani.

It is likely that other archival resources exist, but the

constraints imposed by the Commission’s deadline for public

comment preclude a more comprehensive search at this time.

The overreliance on secondary sources has resulted in a

report that only reinforces the standard and narrow perspective

with no new insights into the controversial activities of the

revolutionaries prior to and during the 1893 Revolution and of

American M inister John Stevens and the sequence of events of - 9 -

January 17, 1893. I agree that Chapter II of Part II is

"particularly sensitive and crucial to this study," and for

that reason new, original initiatives should have been under

taken by the Commission to attempt to provide a definitive

account of this period.

2) The bias of the Report is most apparent when it

accords the so-called "Morgan Report" (Report of the U.S.

Senate Committee on Foreign Relations Relative to Hawaiian

Matters, S. Rept. 52-227 2d, Sess. 1894) virtu a lly equivalent

historical va lid ity as the Blount Report (House Executive Doc.

No. 47, 53rd Congress, 2d Sess.). Although the draft Commission

report correctly notes that the objectivity of both reports

has been questioned, there are substantial differences between

the methods by which the contradictory conclusions of the two

reports were reached.

(a) The Morgan Committee never conducted hearings

in Hawaii, unlike Commissioner James Blount

who spent more than four months conducting

an on-site investigation into the revolution.

(b) Commissioner Blount interviewed parties on both

sides of the conflict and produced a detailed

and exhaustive document. As has noted by a

diplomatic historian,"... the factual background

of its story of the revolution cannot easily be -1 0 -

disputed."1

The Republican annexationist members of the committee interjected numerous queries intended to place the President, his Secretary of State, and his special 'paramount’ commissioner either in error or in bad light.

The Hawaiian side was neither presented nor explained except by Blount. Furthermore, only Morgan endorsed a ll the report's conclusions, and the members sp lit according to party a ffilia tio n .

3) The revolution and the subsequent annexation of Hawaii by the United States occurred at a time of American expansion in the Pacific and Caribbean, culminating in a decade in which the

1/ Dulles, Foster Rhea. America on the P acific: A Decade of Expansion, New York, Da Capo Press, 1969, p. 179. 2/ Tate, Merze, The United States and the Hawaiian Kingdom, New Haven, Yale Univ. Press, T965 , pp. 252-253. -1 1 -

United States acquired Hawaii, Samoa, Puerto Rico, the

Philippines, and Guam. The report should provide a more

detailed examination of the larger historical context in which

the revolution and annexation occurred. For example, two addi

tional recent studies dispute some of the conventional views on

Hawaiian annexation. W illiam Michael Morgan, in an article in

Diplomatic History, Vol. 6, No. 1 (Winter 1982) argues that it was the anti-Japanese climate in the United States in the

mid-1890's that was largely responsible for the ultimate annexation

of Hawaii in the McKinley adm inistration.

Thomas J. Osborne in his book "Empire Can W ait" American

Opposition to Hawaiian Annexation, 1895-1898 (Kent State Univer

sity Press, 1981), on his part claims that historians have

exaggerated the role played by the Spanish-American War in over

coming the opposition to Hawaiian annexation. He points out that

the appeal of the Asian market, the concern about the economic

partitioning of China by rival powers, the upturn of American

trade in mid-1898, and the expectation of increasing American-

Hawaiian commerce, were decisive factors contributing to the

annexation of Hawaii in 1898.

Older accounts to which no reference is made include

Thomas Bailey, A Diplomatic History of the American People;

Foster Rhea Dulles, America on the Pacific: A Century of Expansion

and W illiam Russ, The Hawaiian Revolution.

The security interest of the United States is conceded on -1 2 - page 199 of the Report, which also acknowledges that Stevens was strongly pro-annexationist (p. 192). These two facts are significant and intim ately related, for they explain the rationale for the active involvement of the American M inister and the intervention of United States naval forces in the events of January 17, 1893. The draft report provides only marginal information relative to the p o litica l and economic motivations for the United States’ interest in annexing Hawaii, whose te rrito ria l integrity had already been compromised under the

Hawaii-United States Reciprocity Treaty of 1875.

4) The Commission was directed to draft an impartial report.

The processes of democratic government must be fa ir in fact and give the appearance of fairness. Because the United States

Without impugning the integrity or professional competence of the writers, I must emphasize that the United States Govern ment has a direct economic and p o litica l stake in disproving the basis for a claim for Hawaiian reparations or compensation.

By giving a United States Government employee the responsibility for w riting the historical chapters of the Report, the Commission has created understandable doubts as to whether agents of the

American Government can provide an objective and trustworthy historical assessment of this period which might contradict the interests of their employer.

5) There is a minor factual error on page 195. It was

consisted of only one person. On page 190, the authors mean

the election of 1892, not 1893.

B. A fu ll and fair understanding of political and legal

developments in the Kingdom of Hawaii during the critic a l

years covered by the Report must take into account the

tremendous external and internal pressures exerted on the

Kingdom at that time. First, it is to be remembered that

the Kingdom of Hawaii was relative ly new to the ways and wiles

of the Western world. Second, it was vulnerable to the pressures

of a very aggressive alien resident class, particularly the

American expatriate element and to the pressures of foreign

nations, notably the United States. Third, the Hawaiian Kingdom was undergoing dramatic social and p o litica l changes, as is the case with a ll developing nations.

A ll of these pressures had to have some impact on the

Kingdom of Hawaii and its ability to control its own affairs.

The Report fails to inquire into: (a) the possible role of the United States Government in the acceptance of the "Bayonet

We know, for example, that King Kalakaua sought the advice of the United States M inister on July 27, 1887, when he was faced with the prospect of a revolution led by the Committee of Thirteen.

States M inister told the ruling monarch of the Kingdom of Hawaii that he must stop meddling in the public affairs of his Kingdom.

Four days later, in a final effort to preserve the monarchy,

King Kalakaua called in the m inisters of the major powers, including the United States M inister, to te ll them the country was being taken over and that "he wanted to place the kingdom in their hands." They refused to accept. It seems to me that the attitude of the U.S. Minister suggests the real possibility that the United States may have aided or at least ta c itly encouraged the revolutionary activities of the Committee of Thirteen.

The Report expressly recognizes that the interval between the Constitution of 1887 and the installm ent of the Provisional

Government in 1893 was marked with sporadic attempts by native

Hawaiians to regain some measure of their power. But here again there is no attempt to assess the role, if any, of the United

States in thwarting these attempts.

With respect to the attempt in 1889 to overturn the

Constitution, a ll the Report tells us is that "the insurrection was quelled". The Report also admits that the American and

B ritish m inisters "persuaded" King Kalakaua to disavow his previous public support of efforts in the following year to revise the Constitution. The Report expressly recognizes that a

United States naval squadron was in Hawaii in 1890, and its

Commander, Rear Admiral George Brown, was prepared to move in the event the attempt to revise the Constitution materialized. -1 7 -

Clearly, there is much more to say about the role and influence of the United States during the period 1887-1893, and the Report simply fails to address this issue.

While this shortcoming may be bad history, I recognize that it would not be fatal to the task of the Commission, unless the "Bayonet Constitution" itse lf substantially contributed to the fa ll of the monarchy in 1893. I believe a strong case can be made that it did. But once again, the Report is devoid of analysis or findings even though it expressly recognizes that the "Bayonet Constitution ended much of the monarchy’s power and effectively brought control of the Government within the sphere of the planters and merchants."

Americans and Europeans, and resident foreigners.

The Reformers also set themselves to remove every trace of

King Kalakaua’s influence in the running of the Kingdom. There was, for example, a wholesale purge of the Government service; the board of genealogists, and the native Hawaiian board of health were abolished; the control of the Kingdom’s armed forces was taken from the royal Generalissimo and given to the m inister of foreign affairs; and the young Hawaiians being educated in Europe were ordered home. According to one historian, the effect of all -1 8 - of this was to "knock Kalakaua over and bind him hand and foot."3

The Report is virtu a lly silent on these events, and hence does not assess their significance. For purposes of the Commission’s task, is it immaterial to ask if the Constitution of 1887, which made a ll of this possible, also contributed significantly to the fa ll of the monarchy in 1893? Or, is it irrelevant to ask that if Queen Liliuokalani had the powers her predecessor had before the Constitution of 1887, would she have been able to put down the Revolution of 1893? I think not.

C. The Report ignores the role of the U.S. Government in

encouraging the annexationists in 1892.

Early in 1892, the Annexationist Club was formed to counter act what its members believed was a like ly effort by Queen

Liliuokalani to move against the Constitution of 1887. Formation of the Club was initiated by Lorrin Thurston, and included many of the American expatriates who framed the Constitution of 1887.

Lorrin Thurston believed that foreigners with a financial invest ment in the Kingdom and permanent settlers favored annexation,

3/ Daws, Gavan. Shoal of Time, New York, The MacMillan Co., 1968, p. 253. 4/ Daws, id ., p. 266. -1 9 - while the common natives and the Queen and her faction were o p p o s e d .

Inasmuch as the Committee of Safety, which brought about the fa ll of the monarchy was a direct outgrowth of the Annexationist

Club, I believe it is relevant to ask whether the United States

"Thurston ... vis it(ed) Washington... (to) see what the statesmen there thought about taking the Hawaiian Islands... Secretary of State James Blaine was cordial, and Secretary of the Navy Benjamin Tracy passed on to Thurston some encouraging words from President Harrison -- that 'if conditions in Hawaii compel you to act as you have indicated, and you come to Washington with an annexation proposition, you w ill find an exceedingly sympathetic adm inistration here.’"

If nothing more, the reception Lorrin Thurston received in o ffic ia l Washington did nothing to discourage the annexationists.

5/ Daws, id ., p. 266. -2 0 -

D. The Report begs the fundamental question: Was the role of

the United States significant or decisive in bringing about

the downfall of the monarchy? If it was, then it seems to me that moral case for reparations becomes significantly stronger and perhaps decisive.

The Report concludes that the fa ll of the monarchy was

"prim arily the result of a power struggle between supporters of the monarchy... and the monied haole group..." (p. 188), but that determination fails to address the issue of U.S. involvement and its importance in expediting the success of the revolutionaries.

The authors of Chapter II, Part II attempt to minimize the role of the United States M inister John Stevens and the impact of the landing of troops from the U.S.S. Boston even while

simultaneously conceding that Stevens was known publicly to be strongly pro-annexationist,6 that he was in close communication with members of the Annexationist Club, that he requested troops to protect American property and lives in the absence of any

immediate or visible physical danger, and that troops were bivouacked at a location near government buildings in apparent

contradiction to their announced mission. Moreover, there can be no doubt that their presence demoralized the Royal Government

6/ Kuykendall, Ralph S., Hawaiian Kingdom, Vols, I-I II , Honolulu, University of Hawaii Press, 1967. Hereafter referred to as Kuykendall. Kuykendall states that there can be no doubt that Stevens was dedicated to annexation and overeager to recognize the provisional government. P. 629. - 21- and convinced its supporters that the United States supported the revolutionaries (p. 194).

Deliberately omitted is the fact that the Hawaiian army was scattered throughout the Kingdom and was not concentrated in

Honolulu. Nor was it capable of opposing well-trained foreign forces. Furthermore, the authors’ estimate of the size of the

Hawaiian army is at odds with Kuykendall, who states that it consisted of only 272 men. The well-armed and trained American troops would thus have been more than adequate to overcome their potential opposition.

A review of the history of the U.S. strategic interest in the Hawaiian Islands, the interaction between the annexationists and American o fficia ls, and the occurrences immediately preceding and during the revolution leads one to less ambiguous and qualified conclusions than were reached by the authors.

First, with respect to the activities of Stevens, it was known that he was strongly pro-annexationist. Second, he had

7/ Kuykendall, id., p. 605. -2 2 - secret meetings with members of the Committee of Safety, which was composed of members of the old Annexationist Club. The Report fa ils to mention that Stevens may have done more than indicate to the Committee members a willingness to recognize a provisional government. He also apparently offered his opinion of the Queen as a revolutionary who had committed an ille gal act.8 Such gratuitous language was inflammatory and was obviously calculated to encourage the revolutionaries.

Moreover, the Report conveniently omits the fact that the

Committee members also apparently sought the support of Captain

W iltse, who, one historian reports, seemed to approve of the

No historian, however biased, has ever been able to discern a

threat to the lives or property of foreigners from Queen

8/ Kuykendall, id ., p. 588 9/ Kuykendall, id.., p. 588 -2 3 - were known as early as Sunday, January 15th (p. 192), and the reality of the "threat” must be seriously questioned. The threat of violence was fabricated and served as a convenient excuse to so licit armed American support. The entire revolution was accomplished without a single life being lost and with only a few rounds of ammunition expended.

I believe that the historical record lends credence to the belief that the American involvement was significant, substantive, and perhaps decisive. The p o litica l turmoil created by the attempt of monarchists to reassert their sovereignty relative to foreigners and local monied "haoles" was not marked by violence.

One can only conclude that the United States, as represented by its agents in Honolulu, was an active participant in and a p o liti cal beneficiary of the revolution which eventually resulted in

Hawaii’s annexation as a territory in 1898.

E. The Report’s characterization of the events during the period

January 14-17, 1893, culminating in the fa ll of the monarchy

and recognition of the Provisional Government, rests on a

selective use of facts regarding the activities of the

annexationists, American M inister Stevens, the United States

Navy and Marines, and Queen Liliuokalani. -24-

In 1891, Queen Liliuokalani succeeded to the throne, determined to stem the erosion of the monarchy’s authority.

Beginning in early 1892, she began preparing to amend the

Constitution to more closely resemble the Constitution of 1864.

It was her attempt to promulgate a new constitution in January,

1893, that precipitated the formation of the Committee of

Safety, meetings between the revolutionaries and Stevens, and the revolution itse lf.

There was no danger to any lives or property and hence no justification for the landing of the forces from the U.S.S.

The manner of deployment of American troops was also of questionable legality, for it led to the natural conclusion that they were landed for reasons other than to protect American

lives and property. As a ll historical accounts note, much of

the company was bivouacked between the Palace and Government

Building, away from the concentration of American property. -2 5 -

There were many factors which contributed to the revolution, and the economic issue was but one of them. In addition to the strategic value of Hawaii, which was expounded by Alfred Thayer

The history of the Hawaiian Republic is relegated to a few sentences, but it is worth examining in greater detail because it casts doubts on the noble sentiments expressed by the revolutionaries. In practice, the ensuing Republic, ruled by an oligarchy and operating under a restricted franchise,proved to be less democratic and less free than its American model.

Finally, I do not believe that Part II of Chapter II adequately relates the significance of this history to the

"concerns” of Native Hawaiians as mandated in P.L. 96-565. An accurate historical account is important not only for its legal im plications but also because it helps to explain why so many

Hawaiians and part-Hawaiians became alienated from p o litics and life in the post-monarchy period. The destruction of the monarchy,

"ailed restoration attempt, and the curtailment of the franchise

10/ Kuykendall, .id. , p. 634; Daws, Gavan, id. , p. 277. -2 6 - effectively terminated the right of the Hawaiian m ajority to control the fate of their land. It is only against this background of p o litica l disenfranchisement that the statistics recounted in Part I can be understood.

F. The role played by the United States, through its Minister

John Stevens and its armed forces aboard the U.S.S. Boston,

is of paramount importance since a violation of accepted

international legal behavior would make the United States

accountable for remedying the actions which violated the

law. This was, in fact, the finding of the investigation conducted by Commissioner James Blount and communicated by

President Cleveland to the Congress on December 18, 1893, (noted on p. 198 of the Report).

1) Acts of a State's agents and organs. The American representative to the Kingdom of Hawaii was M inister John Stevens.

International law deems acts of state o fficia ls and organs as

11/ Yearbook of the International Law Commission, Volume II, Articles 5 and 10 (1973 and 1975). -2 7 -

Among the activities of the Boston troops and Stevens on

January 16th and 17th were those which clearly could be construed as representing the authority of the United States Government.

The events included the following: meetings between Stevens and the Committee of Safety; landing of U.S. troops on January 16, 1893, and their deployment in Honolulu; and recognition of the provi sional government by Stevens prior to its gaining control over all m ilitary strongholds and the abdication of the Queen.

As the Report acknowledges, Stevens was known to havestrong annexationist views (p. 192). Furthermore, the landing of the troops naturally provided psychological support to the revolu tionaries (p. 194) and probably had the effect of intim idating the Royal Government (pp. 194-195).

2) State practice of recognition. In the nineteenth century, the United States generally followed the practice of extending recognition to the person or persons in control of the government.12

This apparently was also the understanding of the Department of

State, whose international law Digest, claims

"(N)or was any public recognition accorded to the provisional government by the United States m inister u n til the Queen had abdicated and the provisional government had secured ’effective possession of the government buildings, the archives, the treasury, the barracks, the police station, and all potential machinery of the government.'"13

12/ T. Chen , The International Law of Recognition, pp. 103-130, (1951). 13/ J.B. Moore, Digest of International Law 498 (1906). -28

In fact, this account was incorrect, for recognition by

Stevens preceded the surrender of the police station and the abdication of the Queen.

Therefore, by any measure, the American recognition of the new provisional government was premature and unjustified by events or under international law as then practiced. Stevens, as the representative of the United States, had other legal a lte r natives available besides de facto recognition, including recognition of "belligerency" and "insurgency", both of which maintain a State's position of neutrality.14 That he did not do so at a period when facts were unclear and the course of events unsettled is indicative of his wanton disregard for inter national legal practice.

I have noted that under international law Stevens was an agent of the United States Government, that recognition of the provisional government was extended in a manner contrary to contemporary American practice and inconsistent with the prevailing political situation, and that such intervention in the domestic affairs of another country was contrary to inter national law. The legal analysis is addressed in Part III. -3 0 -

PART I I I - LEGAL ANALYSIS

The Report’s finding that there is no basis in existing . law for native Hawaiians to claim compensation from the United

States for loss of land or sovereignty is irrelevant. Moreover, even if the question were in point, given its institutional bias the Department of Justice was hardly the appropriate party to perform the legal analysis on the question of the Government’s lia b ility for such claims. In any event, the Report’s analysis of existing law is faulty.

1) It seems to me that the task of the Commission was

to ascertain whether a legislative remedy for native

Hawaiian claims was appropriate under the circumstances

not to try to force-fit these claims within an existing

legal framework. It would appear self-evident that, if

there already existed a forum and procedure for

determination of these claims, they would have been

disposed of long ago. In this respect, it appears

that the Commission's focus was wide of the mark.

Likewise, the claims histories of other aboriginal

groups, while relevant, should not have fixed the

parameters of the Commission's inquiry. A broader

and less constrained perspective would have afforded

the Commission a greater opportunity to achieve its

basic mandate, namely, to ascertain whether the

claims of native Hawaiians had any moral legitim acy,

and, if so, what remedy should be fashioned. -3 1 -

On the contrary, the principal exercise of

the preparers of the Report has been to examine

the validity and via bility of the claims of native

Hawaiians under the statutory and decisional law applicable to the claims of American Indian tribes.

This approach is both inappropriate and illo g ica l.

The Indian Claims Commission Act was adopted for the purpose of resolving the historic claims of

American Indian tribes; the determination of claims brought under that Act considered, took into account and was influenced by the American Indian cultural, historical and politica l experience.

The body of law created in the determination of American Indian tribal claims was reflective of the American Indian experience. It was not necessarily reflective of the cultural and historic experience of other groups, such as the native Hawaiians, and, sim ilarly, it could not be expected that a body of law designed to provide a forum for determination of American Indian trib a l claims would be adequate to resolve the claims of a completely different ethnic group.

There can be no question as to the substantial cultural, political and historical differences between American Indian tribes generally and the -3 2 -

native Hawaiians. For one thing, the native

Western nations. The Supreme Court has observed that, before annexation, "Hawaii had existed independent from the rest of the world and sovereign as far back as history and local tradition reaches."

United States v. Fullard-Leo, 331 U.S. 256, 265 (1948).

In that same case, the Court also significantly observed: "We are not dealing with an explorer’s claim of title to land of a savage tribe or that of a discoverer of a hitherto unknown is le t."

Id. at 268.

These differences alone are so substantial, indeed fundamental, that it should have been immediately obvious that the legislative solution and the decisional principles adopted for American

Indian tribal claims could not be adopted in toto, without modification, for dealing with the claims -3 3 -

of native Hawaiians. These precedents could certainly have served as a legitim ate starting point, but they should not have lim ited the scope of Commission consideration.

The preparers of the Report devoted much of

their energy and effort to demonstrating that the claims of the native Hawaiians did not meet a ll of prerequisites of the "aboriginal title " and

the particular claims under consideration and that the decisional concepts were in large part molded and influenced by the historic and cultural experience of the claimants. There is no common-

law concept or doctrine of "aboriginal title ".

Instead, this concept was specifically developed to deal with the unique claims of American Indian trib e s.

There is no compelling reason in law, logic or policy to require that the claims of the native

Hawaiians, a wholly different group with wholly different historic and cultural experiences, be -3 4 -

either evaluated or adjudged under decisional

principles framed for and tailored to Indian

tribal claims. In several instances in the

Report, it is concluded that the claims of

native Hawaiians, for some reason or other,

could not be brought under the Indian Claims

Commission Act.16 The significance of the

Indian Claims Commission Act was an historica l

precedent; it represented a humane and compassionate

act designed to provide some remedy -- albeit

imperfect -- for historical wrongs committed or

permitted by the central government against a weak

and dependent people. Viewed in this perspective

(and not as representing the only available

procedure), the history of the litigation of

American Indian claims can provide some real

guidance to the framing of an appropriate

remedy for the claims of native Hawaiians.

2) The Commission was ill-advised to have the Department

of Justice perform the "legal analysis" for the claims

lia b ility section. By virtue of past experience (if

not institutional bias), the Department of Justice is

not predisposed to concluding affirm atively on the

existence of lia b ility on the part of the federal

government or to discussing the most like ly

rationales for appending lia b ility on the

government. Again, without seeking to cast any

aspersions on the integrity of the Department of

Justice personnel, I feel that the Commission

should have entrusted this sensitive task to

more independent (and perhaps more im aginative)

source. Asking the Department of Justice to

prepare this analysis is akin to requesting the

legal department of American Telephone and

Telegraph to provide an objective analysis of

the merits of telecommunications divestiture

legislation.

3) The Report’s analysis of existing law in support

of its finding that there is no basis for Government

lia b ility is faulty.

Throughout the Report, it is maintained that

there can be no lia b ility unless the United States

its e lf acted to cause the extinguishment of

aboriginal title , i.e ., if aboriginal title was

extinguished by the Provisional Government, the

United States has no lia b ility . This assertion

ignores several cases decided under the Indian -3 6 -

Claims Commission Act which have held the. United

States liable where it condoned and ra tifie d acts of others resulting in a taking of Indian lands.

For example, in United States v. Fort S ill Apache

(a) the United States m ilitary protected the third-party trespasses, and (b) United States law recognized or retroactively validated the title s of the trespassers. Ibid.; See also

Temoak Band of Western Shoshone Indians v. United

States, 593 F.2d 994 (Ct. C l.), cert, denied,

444 U.S. 973 (1979); United States v. Northern

Paiute Nation, 393 F.2d 786 (Ct. Cl. 1968).

In United States v. Northern Paiute Nation,

490 F.2d 954 (Ct. Cl. 1974), the court explained that the retroactive validation of the title of third-party trespassers by the United States had the same legal effect as if it had formally -3 7 -

authorized the trespass:

/F/or purposes of the instant claims, the miners1 acts cannot now be regarded as torts of third parties. By subsequent ra tifica tio n and adoption they are made acts of the United States . . . . /W/hen the United States adopts and ra tifie s a wrong against an Indian tribe, even though it was unauthorized and tortious originally, the ra tifica tio n makes i t an act of the United States . . . . /Id. at 958./

The historical record provides more than ample

factual support for a finding that the United States

condoned, if not actively participated in the

rebellion of the American expatriate group which

usurped the Kingdom of Hawaii. There can be no

question that, subsequent to the revolt, the United

States, through recognition of the Provisional

Government and assumption of a dje facto "protectorate"

over Hawaii (Report, pp. 196-97), can be said to have

ratified the acts of the revolutionaries and adopted

them as its own.17

The preparers of the Report also make much of

the fact that significant amounts of Crown lands

and Government lands were leased to foreigners,

contending that somehow this fact reflects a

defeasance of the title of native Hawaiians or

a defect therein. This view is incorrect for

several reasons. First, a lessee's right is

dependent on and not adverse to that of the

lessor. Indeed, the lease itse lf is a formal

acknowledgement by the lessee of the superior

title of the lessor. Given this circumstance,

it is d iffic u lt to understand how the leasing of

Crown and Government lands can defeat the claims

of native Hawaiians. If, as I shall note below,

these lands were held and administered in trust

for a ll native Hawaiians, the leasing thereof was. nothing more than an incident of ownership, an

ownership which was acknowledged by the lessees.

Secondly, under the Indian Claims Commission

Act, there is an analogous doctrine sanctioning

the permissive use of aboriginal lands by another

group, without loss of aboriginal title . This

concept is known as the doctrine of permissive use; it provides that where one dominant tribe permits another tribe to use its lands with the

express understanding that the user is a guest,

such permissive use does not affect the dominant

tribe’s aboriginal title . See Caddo Tribe v. -3 9 -

United States, 35 Ind. Cl. Com. 321, 341-42 (1975).

Thus, there exists even under claims law a precedent

for the leasing of Crown and Government lands to

foreigners.

Based upon the foregoing, it seems clear that

the reliance on leases to foreigners as constituting

a defect in the title claims of native Hawaiians is without merit, and, to the extent that the conclusions

of the Report are based thereon, they are incorrect.

While reference to the experience of American

Indian tribes and Alaskan natives is helpful to an

understanding of the complexities of aboriginal

claims, I believe it would also have been helpful

for the preparers of the Report to have considered,

if only tangentially, the historical treatment of

land title s conferred by foreign governments to

lands subsequently annexed by or ceded to the

United States. In that regard, it appears to have

been the uniform rule that the United States would

accept the validity of foreign land grants. The

Supreme Court has observed that this is a basic

tenet of the law of civilized nations:

The communal rights of native Hawaiians granted

them by the Constitution of the Kingdom of Hawaii

and subsequent legislation are of no less dignity

than the Spanish land grants recognized in the

Percheman case or the many other foreign grants which the United States has recognized in ceded or

annexed territories. Concomitantly, they are no more susceptible to divestiture without compensation.

It seems to me that the best claim of the

native Hawaiians is to the Crown and Government

lands which were ceded to the United States upon

annexation. Without getting into all the

complexities of the Hawaiian land tenure system,

it seems clear that, prior to the arrival of

Westerners, the system was largely feudal in

nature, with "title " flowing from the King and -4 1 -

his chiefs. Written confirmation of the rights of

native Hawaiians in lands came with the Constitution

of 1840 where it was stated in effect that the

land belonged to the chiefs and people in common,

with the King acting as a trustee.18

It has been observed that "after the constitution

of 1840, holdings of the king, chiefs and commoners

were intertwined and undivided".19 The commonality

of interests was confirmed in the Great Mahele of

1848 in which the King set aside "Government Lands"

of some 1.5 m illion acres "forever to the chiefs

and p e o p le o f my k in g d o m ".

A sound argument can be made that the native

Hawaiians retained a communal interest in the

Government lands and the Crown lands20 and that

divestiture of their rights thereto through

annexation and preceding acts gave rise to a claim

against the United States for which they should be

provided compensation.

18/A Congressional Research Service study concluded that this provision constituted "the basis of Hawaii’s modern land system." See Hearings Before the Senate Commerce Committee on Interior and Insular Affairs on S.J. Res. 155, 94th Cong., 2d Sess. 287 (1976). 19/Levy, Native Hawaiian Land Rights, 63 Cal. L. Rev. 848, 853 (19751: 20/In Liliuokalani v. United States, 45 Ct. C l., 418 (1910), the court held that the Crown lands were not the private property of the sovereign, but rather went with the office. Thus, when the office ceased to exist, the Crown lands became as other public lands (e.g. , Government lands) and became part of the public domain. REMARKS OF CHIEF JUSTICE W ILLIAM S. RICHARDSON Native Hawaiian Study Commission Saturday, January 9, 1982

Good Morning Chairwoman Kam ali'i, Vice-Chairman Shipley, and distinguished members of the Native Hawaiian Study Commission.

Welcome to Hawaii. I hope that you w ill find your hearings here informative and productive. You have a very d iffic u lt task ahead of you - in this next week you w ill be inundated with information of every variety on a vast number of topics a ll related to your mandate to study and report on the "culture, needs and concerns" of native Hawaiians. After gathering a ll of this information, you w ill be expected to digest and synthesize it and come up with recommendations to Congress, a ll in a relatively short period of time. I do not envy you your task and I suggest that w ithin the next week you absorb as much about Hawaii, her history, and her people as you can. Listen, observe, ask questions, be alert to the subtleties of the issues involved, have an open mind, and an open heart.

This morning I want to aid you by giving you some historical background on the development of law in Hawaii. Because one can never speak of law in a vacuum, and because a ll of life in Hawaii is inextricably tied to our lands, I w ill focus my discussion on the development of Hawaii's land la w s .

As you may know, prior to contact with the West, Hawaiians had developed a fa irly sophisticated culture and land tenure system. From what scholars and anthropologists have been able to reconstruct, in ancient Hawaii there was no concept sim ilar to fee simple ownership. An individual did not own land. Land was held in trust by the a li'i (or chiefs) and was administered by them for the common good. Hawaiian society was based on the welfare of the community as a whole and sharing work and the products of the land.

The most basic division of land was the mokupuni or island, which was administered by a high chief or a li'i nui. A smaller land unit, the ahupua'a, was the one more closely related to the spiritual and economic life of the people. Ideally, an ahupua'a was an economically self-sufficient, pie-shaped unit which ran from the mountain tops down ridges to the sea. An a li'i ahupua'a administered this land unit. Many ahupua'a were in turn divided into ili, some of which were independent while others were subdivisions of the ahupua'a. The a li'i appointed konohiki or land agents to control and administer these smaller land divisions. W ithin the ahupua'a were plots of land worked in common by the maka'ainana (or common people) for the support of the chiefs and kahuna (or priests). The maka'ainana also had plots for their own use and had certain gathering rights in the uncultivated areas of the ahupua'a.

Upon the death of a high chief, his successor was free to redistribute the land among the lesser chiefs. Thus, when a chief died, his lands did not always go to his descendents. Warfare sometimes brought new high chiefs who could reassign the conquered lands to their followers. These changes in control did not affect the boundaries of an ahupua'a nor the tenure of the common farmers. Unlike the European feudal systems, the maka'ainana were not tied to the land and could, if unhappy with a chief, leave the ahupua'a. Since the chiefs depended upon the maka'ainana for food, clothing, and shelter, and because most chiefs took their duties as administrator of the land seriously, most a li'i did not abuse their power.

This then was the situation upon contact with the West. The arrival of Westerners completely altered Hawaiian social, economic, and land patterns. Hawaii became a major supplier of sandalwood and a refreshment port for European ships sailing the Pacific. Great quantities of food were required to f ill the needs of the ships stopping in Hawaii and the burden fe ll on the mass of Hawaiian people to supply them. The a li'i quickly learned the value of firearms and traded food and sandalwood for guns.

Prior to Cook's arrival in 1778, the a li'i of the various islands had fought each other for power, but no one chief had sufficient weapons or manpower to unite the islands. By 1795, Kamehameha, with the use of western arms and allies, expanded his rule to a ll the islands except Kauai. Through negotiation and diplomacy, Kamehameha was able to bring Kauai under his rule in 1810.

Kamehameha I, for the most part, retained the traditional landholding system. As one scholar has noted: "The king's w ill was the supreme authority, but Kamehameha's w ill was not a rb itra rily capricious; on the contrary, it was just, and he governed his kingdom, as he governed him self, in accordance with the acceptable traditions of his race." (Ralph Kuykendall, Vol. I, The Hawaiian Kingdom, at 51-52.) One innovation of government which Kamehameha did introduce was the appointment of governers to be his special representatives on each of the is l a n d s .

A fter Kamehameha's death in 1819, his son Liholiho ascended to the throne, and with the Dowager Queen Kaahumanu, ruled u n til 1825. The reign of Kamehameha II is most well-known for the abolition of the kapu system - the

2 ancient religious system of the Hawaiians. The year after abolition of the kapus, the firs t party of missionaries arrived in Hawaii. Kamehameha II's policy toward land tenure was conservative. He thought it p o litica lly unwise to revoke the landholdings of the subchiefs and thus allowed them to maintain the lands given to them by Kamehameha I.

During these early years, many foreigners were give land by the various chiefs, and even by the kings, in return for services or merely out of generosity. Although these grants were always given with the understanding that the lands would eventually return to the king, foreigners and chiefs alike began to feel that the privilege of passing land on to ones heirs was a reasonable expectation.

When Kamehameha II I came to the throne at the age of twelve, the council of chiefs convinced him to adopt a policy, termed the Law of 1825, which allowed chiefs to keep their lands upon a king's death. Because commerce, business, and trade were increasingly becoming common to Hawaiian society, and to Western minds investment of capital required security in land tenure, pressure to change the traditional land system mounted. Commercial activity also m ultiplied contacts between Hawaii and foreign nations and it became evident that in order to safeguard Hawaii's independence, it would be necessary to adopt a form of government sim ilar those of Europe and America.

As early as 1835, a crim inal code was adopted and in 1836, the chiefs made an unsuccessful attempt to obtain an economic and p o litica l advisor from the United States. In 1838, W illiam Richards, one of the American Missionaries, became teacher, translator, and chaplain for the King. Aided by Richards and several graduates of the high school at Lahainaluna, the King and his chiefs discussed the questions of governmental policy and law. The firs t important product of their work was the Declaration of Rights of 1839 and a c iv il code of laws. The Declaration of Rights has often been termed the Hawaiian Magna Charta - it recognized that the people, as well as chiefs, had rights in property. However, the 1839 Declaration did not provide a plan for government and in 1840, Hawaii's firs t constitution was promulgated. That constitution was a landmark document - it created a "house of representatives", chosen by the people, as part of the legislature; it established a supreme court; most importantly, it put into writing the plan of government and defined the powers and duties of the various officials. The constitution began with a recognition that:

Kamehameha I, was the founder of the kingdom, and to him belonged a ll the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the

3 management of the landed property. Wherefore, there was not form erly, and is not now any person who could or can convey away the smallest portion of land without the consent of the one who had, or has the direction of the kingdom.

Although the Constitution of 1840 declared the interests of king, chiefs and people in the land, it did not create fee simple ownership. However, there was a provision stating that property already held by foreigners would not be reclaimed by the Crown. In 1841, Kamehameha III, attempting to forestall conflict with the foreign community, proclaimed a plan to allow the various island governers to enter into fifty-year leases with foreigners. But, disputes between Westerners and Hawaiians over land continued. In 1843, partially due to a lease dispute involving the B ritish Counsel, the B ritish warship Carysfort entered Honolulu and its captain took control of the government for five months. Britian, upon learning of this action, repudiated it and ordered the Carysfort to leave.

The pressure for change in the land tenure system was so great that in 1846 a Board of Land Commissioners was established to formulate principles of land title . The Commission adopted a set of principles and set the stage for partition of the undivided interests of king, chiefs, and people to land. Justice W illiam Lee of the Supreme Court drafted the specific formulation for division of the lands - The king’s private lands (those he held as a noble) would be distinguished from those he held as head of the government and would be retained by him. The remaining land of the kingdom was to be divided into thirds: one-third to the Hawaiian government, one-third to the chiefs and konohiki, and the final third to the hoa'aina or tenant farmers.

Thus, in January of 1848 began a process termed the Mahele - meaning division. In a book called the Mahele Book, a ll the the lands of Hawaii were divided between the king and chiefs. The king quit-claimed his interest in specific ahupua'a and ili under each chief's control and the chiefs quit-claimed their interest in the balance of the lands to the king. After the last mahele between king and chiefs in March of 1848, the king "set apart forever to the chiefs and people of my Kingdom" approximately 1,500,000 acres. He retained for himself, his heirs and successors, approximately 1,000,000 acres. The land which the king retained as his own became known as Crown Land, while that which he gave to the government became known as Government Land. The Land Commission then awarded the approximately 1,500,000 acres of remaining land to the chiefs. These awards specifically reserved the rights of the common p e o p le .

4 The fin a l step in the Mahele process was ascertaining the interests of the common people. An 1850 Act allowed each tenant farmer to apply for his own plot of land or kuleana. A kuleana could come from the Crown lands, Government lands, or from the Chiefs' lands. However, it could only include the land which a tenant had "really cultivated" plus a houselot of not more than a quarter acre. In a hearing before the Land Commission, the tenant farmer was required to present two witnesses who could te stify as to his right to the land. He also had to pay for a survey of the land. Although some have viewed the Kuleana Act as beneficial, the result le ft much to be desired. The common people received fewer than 30,000 acres, less than one percent of the total land of Hawaii. Many reasons have been advanced for the scant quantity of land received by the hoa'aina a - many Hawaiians did not know of or understand the law, some lacked the small amount of money to pay for a survey, others fe lt that to claim land was an act of betrayal to the chiefs. One commentator has suggested that the reason why commoners received so little land was that kuleana grants were severely lim ited by the "really cultivated" clause of the Act. The area actually cultivated by an individual farmer was relatively small since Hawaiians had always cultivated large portions of the ahupua'a in common. (See, Levy, Native Hawaiian Land Rights, 63 C alif. L. Rev. 848, at 856 (1975).)

The 1850 Kuleana Act also codified the rights of tenants to gain access to the mountains and the sea and to gather certain m aterials. Another act passed in 1850 allowed any resident of Hawaii to own land regardless of citizenship.

As you can see, the decade between 1840 and 1850 brought a radical change in the land tenure system. During this period, the government of Hawaii was also reorganized with the separation of legislative, executive, and judicial functions being accomplished through the passage of three "organic" acts. Hawaii also began to be accepted as a member of the international community and thus, it seemed to many that the rather simple constitution of 1840 should be r e v is e d .

Three commissioners - Dr. G errit P. Judd, Judge John Ii, and Judge W illiam Lee - were appointed to review and recommend amendments to the C onstitution. The revision amounted to an entirely new constitution. The draft agreed upon by them was w ritten mainly by Judge Lee and reflected his American and democratic point of view. After some revisions and amendments in the House of Nobles, the C onstitution of 1852 was signed by Kamehameha III. Among other things, it gave the vote to a ll male taxpayers over the age of 20 who had resided in Hawaii for more than a year, provided that the legislature should meet every year,

5 and made most of the acts of the King subject to approval by his privy council and the kuhina nui (prime m inister).

The years from 1854, when Kamehameha III died, to 1892 saw a continual weakening of the monarchy, the growth of Western owned sugar plantations and businesses, and the gradual loss of Hawaiian lands. Hawaiian farmers, unable to earn a living on their small plots of land without the rights to pasture their animals or grow crops on unoccupied portions of the ahupua'a as they had done formerly, were forced to sell, lease, or exchange their lands. Even the a li'i, who should have had a greater understanding of Western concepts of land ownership, were unable to maintain control of most of their lands. Debts to Westerners were paid in land and those a li'i who attempted to build plantations were unable to manage cash plantations - large estates were lost through foreclosure. Government land also fe ll into Western hands - by 1893 over 600,000 acres of land had been sold by the kingdom and while native Hawaiians made the largest number of purchases, the bulk of the land went to Westerners. For example, by 1864 over 320,000 acres of government land had been sold to a little over 200 Westerners. In 1865 the entire island of Ni'ihau comprising over 61,000 acres was sold to one Western businessman. Crown lands were also sold by the various monarchs u n til, in 1865, an act was passed making them inalienable. S till, large portions of those lands were leased to Westerners at very low rates.

During these years, a constitutional struggle was also taking place. When Kamehameha IV took the throne, he fe lt many of the provisions of the Constitution of 1852 were unacceptable lim itations on his royal prerogatives and throughout his reign fought unsuccessfully to have the constitution amended in accordance with his views. Kamehameha V, who came to the throne in 1863, took an even more radical stance and refused to take an oath to maintain the Constitution of 1852. His opposition to the 1852 document resulted in the calling of a constitutional convention. When the convention became deadlocked over the issue of universal suffrage, which the King opposed, he abolished the convention and dissolved the constitution. For a week, Hawaii was without a governing document u n til the Constitution of 1864 was signed, reasserting the monarch's prerogatives.

Kamehameha V le ft no successor and W illiam Lunalilo was elected to the throne by the Legislative Assembly in 1873. Lunalilo proposed several amendments to the 1864 Constitution, among which was one elim inating property qualifications for voters. Before the amendments could be enacted, Lunalilo died and David Kalakaua was elected king. Kalakaua also supported the amendment abolishing voter property qualifications and it was subsequently adopted.

6 The struggle over the constitution continued. In 1887, Kalakaua yielded to pressures to appoint a new cabinet whose firs t task was to provide a new constitution. He reluctantly signed the Constitution of 1887 which reduced him to the status of a ceremonial figure, placed executive powers in the hands of a cabinet appointed by him but responsible to the legislature, made the House of Nobles, as well as the representatives, elected, and at the same time set property qualifications for voting so high that 3 out of 4 native Hawaiians were disenfranchised.

In 1892, L iliu 1okalani came to the throne. She, like her brother, Kalakaua, fe lt the 1887 Constitution not only lim ited the monarch's prerogatives but resulted in too much power being placed in the hands of Westerners. She decided to promulgate a new constitution. In January of 1893, she was on the verge of doing so, but was persuaded by her advisors to postpone that action. However, members of the Western business community used her proposal as an excuse to plot and execute an overthrow of the monarchy. In their efforts, they sought and received the help of the U.S. M inister to Hawaii, John L. Stevens, a long-time advocate of Hawaiian annexation to the U.S. On January 16, 1893, Stevens ordered marines to land in Honolulu. The excuse given for invading was the protection of American lives and property. With American troops for support, the insurrectionists took control of the government building, declared the monarchy abolished, and proclaimed the existence of a provisional government u n til annexation with the United States could be negotiated. Stevens recognized the new government before L iliu 'okalani had surrendered. The Queen, realizing that her forces could not defeat the marines, and in order to prevent fu tile bloodshed, relinquished her authority to the superior forces of the United States.

The reaction on the mainland to U.S. m ilitary involvement in the overthrow prevented immediate annexation of Hawaii. Various attempts were made to restore L iliu 'okalani to the throne, but none were successful. The provisional government, foiled in their hopes for speedy annexation, established the Republic of Hawaii in 1894.

The Republic claimed title to a ll those lands designated as Government Lands at the time of the overthrow. In the Republic's Constitution, the Crown lands were also expropriated without compensation to the monarch. After Hawaii was annexed to the United States, L iliu 'okalani sought compensation for the Crown Lands in the U.S. Court of Claims, but that court held that those lands were not L iliu 'okalani's personal property and existed to sustain the dignity of the office "to which they were unseparably attached. When the office ceased to exist they became as other lands of the sovereignty and passed ... as part and

7 parcel of the public domain." (Liliuokalani v. United States, 45 Ct. Cl. 418, at 428 (1910).)

Changing administrations in the United States, the Spanish-American War and increased trade w ith the Far East, finally resulted in the annexation of Hawaii in 1898. It's quite interesting to note that annexation did not come by way of treaty, which would have required a two-thirds vote in the U.S. Senate. Annexation supporters in the senate could not muster the necessary votes and a jo in t resolution of annexation was introduced requiring only a simple m ajority in each house. In the Joint, or Newlands Resolution, as it is often called, a ll of the public lands and properties of the Republic were ceded to the United States. It should be recalled that the public lands were the lands designated as Government and Crown Lands during the Mahele process. The Newlands Resolution provided that the existing laws of the United States with regard to public lands would not apply to Hawaii; but that the United States would enact special laws for the management and disposition of Hawaii's public lands. The Resolution had an unusual feature in that it required that a ll revenues or proceeds derived from public lands (except revenues from lands used for federal or te rrito ria l government purposes) be used "solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes."

The Organic Act of 1900, establishing a government for the territory, stated that the laws of Hawaii relating to public lands would continue in force u n til Congress otherwise provided. Under the terms of the Organic Act, the te rrito ry of Hawaii controlled and managed public lands, but the United States could, by act of Congress or executive order, set aside lands for use of the United States alone.

Prior to annexation, some public lands had been opened up in a homesteading program. Sugar growers also leased large portions of the public lands and their leases were due to expire in the early 1920s. They were afraid that when their leases expired, their choice sugar lands might be put into homesteading. Around the same period, native Hawaiian leaders began lobbying for some aid to help the Hawaiian people. In 1921, the Hawaiian Homes Commission Act was passed by the U.S. Congress in an effort to "rehabilitate" native Hawaiians. The idea was to give Hawaiians of more than 50% aboriginal blood an opportunity to apply for 99 year leases of small agricultural or pastoral lots. Congress seems to have intended to get the Hawaiian back to the land, developing him into an independent citizen farmer. The Act was supported by the sugar growers because it carefully defined the lands which native Hawaiians might receive. Forest reserves were excluded and so were lands already being used for cultivating sugar. While the success of the Hawaiian Homes Commission program is a hotly debated

8 issue, no one can deny that many of the program's problems stem from the poor quality lands set aside for the purposes of the Act.

When Hawaii became a state in 1959, the federal government returned to the State most of the lands and properties that had been ceded under the Joint Resolution of Annexation. (In this regard I suggest that members of this commission note in particular section 5 of Hawaii's Admission Act.) However, certain lands - those that had been set aside pursuant to an Act of Congress, Executive Order, Presidential Proclamation, or Gubernatorial Proclamation - remained the property of the United States. The Admission Act also provided a mechanism for return of these "retained" lands within five years of Hawaii's admission if the United States no longer needed them. Subsequently, Congress passed an act allowing the return of these lands to the State at any time they are deemed unnecessary to U.S. needs. Perhaps the most interesting provision in the Admission Act is the trust provision relative to Hawaii's public lands. Section 5(f) of the Admission Act states:

The lands granted to the State of Hawaii ... together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States.

I want to emphasize the obligations placed upon both the State of Hawaii and the United States in regard to public lands qs they relate to native Hawaiians. Not until recently has the language quoted above been seriously considered and acted upon. Prior to 1978, the State had interpreted the provision to require only that the proceeds and income be used for the fulfillm ent of any one of the five trust purposes and the state chose to make that one purpose public education.

In 1978, however, a constitutional amendment was passed establishing the Office of Hawaiian A ffairs. According to the amendment, OHA would re ce ive a pro rata share of the

9 income and proceeds from the ceded lands to be used for the "betterment of the conditions of native Hawaiians." The 1980 legislature set that pro rata share at twenty percent. As I understand it now, several unresolved issues remain as to exactly which lands are included in the corpus of the t r u s t .

The federal government continues to be one of the major landowners in Hawaii. As was mentioned earlier, under the Admission Act, lands which had been set aside for federal uses remain federal lands u n til they are determined to be surplus to federal needs. I believe the latest figures indicate that the federal government owns close to 400,000 acres of land in Hawaii. Of course, some of that land was obtained through condemnation, but most of it is land ceded to the United States in the Joint Resolution of Annexation and subsequently retained by the United States.

Although u n til now, I have discussed statutory law relating to Hawaii's lands and particularly her public lands, I also want to call your to attention some of the recent caselaw impacting on Hawaiians and their lands. In general, Hawaii follows the English common law tradition. However where ancient Hawaiian usage and custom d iffe r with English common law, custom controls. (Hawaii Revised Statutes §1-1.) Thus, in determining shoreline boundaries, our court looked to ancient custom and usage with regard to seaward boundaries to reach the conclusion that such boundaries should be set along the upper reaches of the wash of the waves as evidenced by the vegetation line. (In re Ashford, 50 Haw. 314, 440 P. 2d 76 (1968); County of Hawaii v. Sotomura, 55 Haw. 176, 517 P. 2d 57 (1973).) In another case tradition and custom were used to determine that a land extension created by a lava flow is owned by the state in trust for the people and cannot be claimed by a private party. (State v. Zimring, 58 Haw. 106, 566 P. 2d 725 (1977).) In yet another landmark case, the court looked to early Hawaiian statutes, the principles adopted by the Land Commission discussed earlier, and custom to decide that the state holds the right to running water in trust for the people. (McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330, affm'd on rehearing, 55 Haw. 261, 517 P. 2d 26 (1973).) Incidentally, I should mention that some of these cases have, in effect, been appealed to the federal courts and are s till pending. Several potentially far reaching cases on the scope of native tenants' access and gathering rights are pending now in our court, and we have also been asked to examine the trust duties of the Hawaiian Homes Commission.

I te ll you a ll this by way of informing you that land issues, access rights, water rights, the allocation of natural resources, are s till unresolved problems with which Hawaiians today must deal. The roots of these problems lie

10 in an earlier time - in the conflict between a traditional land tenure system which did not recognize individual property rights and the Western system of which individual property rights is the cornerstone; in the conflict between a societal structure based on cooperation and sharing and one emphasizing competition and individual effort; in the story of a people whose relationship to the land was so intertwined with their culture and religion that destruction of one led to destruction of a ll. As you can see, efforts have been made, by the State, by Congress, by the courts, at various times in our history to deal with these problems. None of these efforts has been tota lly successful. As a judge, even as Chief Justice of our supreme court, I am lim ited - I can only answer the issues raised in the individual case before me. However, you have been charged with a broader mandate and are given the freedom to make recommendations to Congress which w ill have a major impact on the Hawaiian people. I believe now is the time when unredressed wrongs can be made rig h t and when a remedy can be fashioned which w ill take into account the relationship of the people and land. The power is yours, if you w ill but use it - wisely.

Thank y o u .