by Keokani Kipona Marciel, MS
Pelekikena, Hui Aloha ʻĀina o Las Vegas
On February 27th, 2016, the Associated Press reported on the so-called “Native Hawaiian Constitution.” The last sentence of the report states:
The United States annexed Hawaii five years after the overthrow. Hawaii became a state in 1959.
Territorial annexation by treaty is a constitutional prerequisite for American statehood admission. This has been verified 49 times during the first 176 years of U.S. history. Under the U.S. Constitution, the power to negotiate treaties is reserved for the President. In turn, the power to ratify treaties is reserved for the Senate and requires a two-thirds supermajority. These enumerated powers do not belong to Congress. No congressional enactment of the United States has ever annexed the Hawaiian territory, because domestic laws cannot unilaterally acquire a foreign country.
Texas Precedent Invalid
Following two failed attempts to obtain an annexation treaty for Texas in 1837 and 1844, the statehood admission of Texas in 1845, by a joint resolution of U.S. Congress, was premature and conditional. The annexation of Texas was not constitutional and unequivocal until the Treaty of Guadalupe Hidalgo in 1848. The preliminary admission of Texas as a U.S. state in 1845, by a joint resolution, does not qualify as a precedent for the alleged annexation of the Hawaiian Islands as a U.S. territory in 1898, by a joint resolution. The former relies on the domestic power of U.S. Congress to admit states. The latter relies on the foreign affairs power, reserved for the U.S. President and Senate, to annex foreign territory by treaty.
Furthermore, unlike Hawaiʻi, the statehood agreement between the U.S. and Texas in 1845 was bilateral. Statehood admission was approved by Texas through both a congressional majority and a voter majority, neither of which were the case for the alleged annexation of Hawaiʻi by joint resolution in 1898.
The alleged statehood admission vote of 1959 followed six decades of occupation, during which the U.S. systematically denationalized and Americanized Hawaiian subjects. Simultaneously, the U.S. transferred settlers from its military and civilian population into the occupied territory, then allowed them to vote in the invalid plebiscite, essentially stuffing the ballot box. This is considered a war crime under occupation law, including a grave breach of the Geneva Convention IV. These international treaties apply to Hawaiʻi, because the U.S. occupation actually commenced with the “Admission Day” ceremony held on June 14th, 1900, after those conventions had already taken effect.
35% vs. 94%
Fact: 35% of Hawaiʻi residents (who were “eligible” to vote) voted for American statehood in 1959. By excluding those who abstained from the vote, the figure is artificially increased to 77%. By excluding those who voted, but abstained from the statehood question, the number is artificially increased even further to 94%. This is how the revisionist history of Hawaiʻi lies with statistics to pretend that Hawaiʻi is annexed rather than occupied.
Fact: 65% of Hawaiʻi residents (who were “eligible” to vote) DID NOT vote for American statehood in 1959, through a false plebiscite that excluded an independence option.
Source: The Statehood Plebiscite
Plebiscite Criteria Under Customary International Law
Under customary international law, an independence option must be offered by a plebiscite. Consequently, the 1959 vote does not qualify as a plebiscite, which means that it is nothing more than a joint enactment of United States Congress, being a domestic law restricted to the continental U.S. borders.
Under customary international law, abstentions are not excluded from a plebiscite outcome, and 35% is too low to be considered a mandate. By comparison, the 85% voter turnout for the Scotland referendum of 2016 is considered a mandate. In 2014, Greece had a 70% voter turnout for its referendum regarding the country’s economic future.
Unlike domestic elections, abstentions cannot be excluded from the outcome of a plebiscite to determine a political relationship between states. Furthermore, since the U.S. Senate does not exclude abstentions when voting to ratify a treaty, then the 1959 vote must be held to the same standard of non-exclusion to allege territorial annexation.
Chain of No Title
Of the 90 U.S. Senators in 1898, only one maintained that territorial annexation by joint resolution was constitutional. The other senators who debated the issue said that annexation by joint resolution was not only unlawful and unconstitutional, but that it was logically impossible. If countries could unilaterally acquire each other through domestic legislation, the world would be chaos, and there would be no such thing as occupied states and colonized territories.
The title of U.S. Joint Resolution no. 55, enacted on July 7th, 1898, “To provide for annexing the Hawaiian Islands to the United States,” is an explicit upfront disclaimer that it was not itself the intended instrument for territorial annexation of Hawaiʻi. Instead, it effectively defers that responsibility to the subsequent “organic act” of 1900.
Contrary to established custom of detailed description, the joint resolution of 1898 simply defines the territory as “the Hawaiian Islands and their dependencies.” By not itemizing any islands by name, nor including metes and bounds, nor lines of latitude and longitude, the joint resolution further admits that it acquired no territory.
Chapter 339, also known as the so-called “Hawaiian Organic Act,” was enacted by the U.S. Congress on April 30th, 1900. It defines the Hawaiian territory as follows:
That the islands acquired by the United States of America under an Act of Congress entitled "Joint resolution to provide for annexing the Hawaiian Islands to the United States," approved July seventh, eighteen hundred and ninety-eight, shall be known as the Territory of Hawaii
Instead of providing a territorial description absent in the joint resolution of 1898, it passes the buck back to that resolution, which itself admits that it acquired no territory. In other words, both of these laws point to each other for defining a territory, meaning that neither one takes any responsibility for defining or acquiring the Hawaiian territory. Therefore, by their own futile admission, separately and in combination, these two laws did not annex the Hawaiian Islands.
U.S. Public Law 86-3, the alleged statehood admission act for Hawaiʻi, was enacted by U.S. Congress on March 18th, 1959. Its territorial description is as follows:
The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters, but said State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (off-shore from Johnston Island), or Kingman Reef, together with their appurtenant reefs and territorial waters.
Instead of defining which islands the territory includes, it only adds which islands are excluded. Once again, furthermore, no metes, bounds, latitude, or longitude are used to describe boundaries according to the established custom. It claims its territory to be the islands acquired by the the “organic act” of 1900, which in turn claims its territory as that inherited from the joint resolution of 1898, which delegates the task of defining and acquiring the territory to the “organic act” of 1900.
On June 27th, 1959, not only did 35% of “eligible” voters agree to American statehood admission, the ballot also required them to accept the following territorial description:
The boundaries of the State of Hawaiʻi shall be as prescribed in the Act of Congress approved March 18, 1959, and all claims of this State to any areas of land or sea outside the boundaries so prescribed are hereby irrevocably relinquished to the United States.
Therefore, it cannot be concluded that this statehood vote resulted in territorial annexation, which means that the statehood admission of 1959 is without a territory.
Taken separately or in combination, none of the aforementioned legislation takes responsibility for defining and acquiring the Hawaiian territory, which means that nothing was annexed. Therefore, it is not only incorrect to say that Hawaiʻi is legally annexed, but it is also incorrect to say that it is illegally annexed. Neither is true. The so-called “50th State” legally exists, but like an empty container, it has no territory. In the absence of annexation, legal or illegal, the only logical conclusion is that Hawaiʻi is occupied by the United States.
Source: A Rope of Sand
Colonization within an Occupation
With no annexation treaty, and two failed attempts to ratify an annexation treaty, in 1893 and 1897, the United States is in the Hawaiian Islands and not the other way around. Therefore, referring to the U.S. as the “Mainland” of Hawaiʻi is a misnomer. The notion of a “nation within a nation” is likewise a misnomer. It is time for the Hawaiian community to take an objective look at historical facts and begin using accurate terminology.
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