So it seemed natural to follow-up with a closer look at the findings of fact and conclusions of law that capped the contested case proceeding under the auspices of the Board of Land and Natural Resources in 2011. These are the legal findings that are currently being challenged in court by telescope opponents.
It seems to me that you can agree or disagree with them, but it’s not honest to ignore them.
In any case, after being called lots of names by those commenting on the “dangerous intersection” column, I thought it might be useful to reprint several of my earlier Civil Beat columns dealing with similar issues.
Under the terms of my freelance contract with Civil Beat, they have exclusive use of the material for three months. After that, I’m free to share them here.
The comments on my latest piece brought this earlier column to mind. And there are links to several others down at the end.
Is Part of the Sovereignty Debate Just a Matter of Faith?
Civil Beat • MARCH 5, 2014·By IAN LIND
The hostile responses and sometimes quite personal attacks generated by my column here last week, in which I questioned the dubious claims of those who believe they wield royal powers on behalf of a government representing the pre-1893 Kingdom of Hawaii, were not unexpected.
As one old friend later commented, “Ya knew what you wuz getting into…”
He’s right, of course, I knew the column would generate some unpleasantness, because trying to talk about sovereignty has become much like attempting to debate religion. It can be very difficult to get past points of disagreement.
In both cases, believers are united by certain core articles of faith, beliefs that are not subject to rational testing and are not open to critical and skeptical examination. Those who don’t share the faith are looked upon as non-believers who are fit to be cast down to the nether-regions or, in the case of sovereignty, dismissed as ignorant and presumably anti-Hawaiian.
I’m indebted to The Hawaii Independent for publishing a very critical response by Hawaiian teacher and scholar, Umi Perkins (“Sovereignty is not a laughing matter”). His column can be a beginning point to ground this discussion.
Perkins highlights one currently popular theory, the idea that the Kingdom of Hawaii retained its sovereignty even though its government was overthrown in 1893.
Referring to this as “the most credible” of the current approaches to sovereignty, Perkins criticizes me for “curiously failing” to mention its chief proponent, David Keanu Sai.
Sai is important, Perkins tells us, because he took a case to the Permanent Court of Arbitration in 2000, and the case provided “tacit recognition of Hawaii’s continued sovereign status from an international entity….”
But on closer inspection, the case established nothing of the kind, and did not boost the standing of this Hawaii sovereignty theory.
Here’s a summary of the case that went to the Permanent Court. Sai and a friend, Lance Larsen, pretended to have a dispute they wanted arbitrated by the permanent court, which typically hears cases involving trade disputes.
Larsen described himself as a citizen of the Kingdom of Hawaii, and blamed the kingdom — represented by Sai — for allowing Larsen to be arrested, prosecuted, and jailed by the State of Hawaii for failing to display an automobile license and safety sticker on his car. Larsen claimed Sai and the Kingdom failed in their duty to intervene to block the U.S. from mistreating Larsen, a citizen of the kingdom.
The two took advantage of the formal structure of arbitration, which focuses on resolving differences while accepting points agreed to by the parties themselves.
In this case, since both Sai and Larsen agreed on the continued existence of the kingdom, the arbitrators initially accepted this as a given.
The two men then asked the Court of Arbitration to confirm the kingdom’s continued jurisdiction, and to further verify that the kingdom illegally failed to protect Larsen against the imposition of American laws. It was a clever attempt to trick the court into having to rule on the legality or illegality, under international law, of the overthrow of the kingdom.
The result was pretty straightforward. You can read the formal arbitration award online.
The arbitration panel clearly saw there was no real dispute between Sai and Larsen, thereby making them ineligible to have their dispute decided by the Court of Arbitration. The case was tossed out on this “technicality,” but by law an important technicality.
“It is not the function of an international arbitration tribunal, whose decision is enforceable by legal process as between the parties, to decide purely historical issues or controversies which bear no relation to the legal rights and obligations of the parties at the time of the dispute,” the arbitration award concluded. “And this is true whatever symbolic significance or affect may be attributed to those historical issues.”
Because the case tripped over this basic issue of jurisdiction, the arbitrators never had to consider whether, for purposes of international law, the Hawaiian Kingdom “may be regarded as continuing to exist,” or whether Sai could validly claim to represent it. They took pains to make explicit their decision that they had not made any ruling in this regard.
And the arbitrators further signaled skepticism over the idea that the Hawaiian Kingdom, or any state, “would continue indefinitely to exist during a period of annexation by another State.” Although that was a position agreed to by Sai and Larsen, arbitrators said that if the issue were to be reviewed on its merits, other factors to be considered would include “the lapse of time since the annexation, subsequent political, constitutional and international developments, and relevant changes in international law since the 1890s.”
In the end, the arbitration tribunal determined that, as a matter of international law, “there is no dispute between the parties” capable of being settled through arbitration. Further, again as a matter of international law, the underlying matters raised by Sai and Larsen could not be considered without the consent of the United States, which had obviously never been sought.
Contrary to Perkins’ assertion, the arbitrators made clear in their award that they gave no “tacit recognition” to the sovereignty claims of Sai and his Hawaiian Kingdom.
But Perkins then dismisses the “annexation” of Hawaii by the U.S. in 1898 — yes, he added the quotation marks — as legally flawed because it “was asserted through a mere Joint Resolution, which has little legal force in the U.S. and none outside it.”
It’s hard to say where this notion comes from. No authority is offered for this rather surprising assertion, which was also raised by several others who commented on my column, all agreeing that only a treaty of annexation could have made Hawaii’s entry into the United States legal.
But this is again a misstatement. The U.S. Supreme Court as early as 1901, in the case of DeLima v. Bidwell, ruled that annexation of territory via treaty has the same legal status and force as annexation by an Act of Congress. To dismissively claim a Joint Resolution of Congress is insufficient may play well to an audience of believers, but appears to fall short as a valid statement of law.
So while Sai, and perhaps Perkins, wrap their views in legalistic claims, when it comes down to it, those claims are dubious. Unless, of course, they must be accepted on faith.
But then, like arguments over religion, I’m not convinced that a continuing sovereignty debate focusing on obscure and often hypothetical historical minutiae is useful, or capable of eventually overcoming differences and moving us all forward, legally or politically.
I do agree with Perkins when he quotes OHA trustee Peter Apo: “‘You can feel the tension’ in the Hawaiian community, he (Apo) said. It is this tension that drives groups such as those Lind names to simply take the reins and establish governments, with or without (usually without) permission.”
But, in my view, this tension isn’t new. And it would be incorrect to attribute it primarily to issues related to sovereignty, or to assume it would be relieved by progress along any of the potential paths to some form of Hawaiian sovereignty.
Here’s the problem that I see. Hawaiians have experienced a prolonged period of downward relative social mobility. They might be better off than before, but have lost ground relative to other ethnic groups. In my view, this decline doesn’t date back to 1893, or 1898, but to the post-WWII period.
After all, in the first decades of the 20th Century, following annexation, Hawaiians made up the largest segment of the islands’ electorate. Many Hawaiians, probably a majority, followed leaders like Prince Kuhio and John C. Lane, into the Republican Party, even during those decades when the Big Five and the Caucasian elite dominated the islands’ politics and economy through the GOP.
During the decades that followed, up through World War II, Hawaiians benefited greatly from political patronage, and dominated the ranks of police officers, firefighters, teachers, and other government employees.
That changed in the post-war years, as the Democratic Party gained power by building a political coalition around the Japanese-American voting block. Although many Hawaiians also worked hard for Democratic victories, the ethnic makeup of the government workforce clearly changed, to the detriment of the Hawaiian community.
Somehow, while other, more recently arrived ethnic groups have climbed up the social ladder, Hawaiians still have more than their share of poverty, ill health, poor housing, imprisonment, unemployment, and other social problems. Progress, economic development, and the passage of time have brought fewer benefits to Hawaiians than to other segments of the community, or so it seems.
What if sovereignty isn’t self-evident? And what if it only counts if it addresses the problems that afflict so many Hawaiians in the 21st Century?
And how about if it does so in a way that can be achieved in practice, rather than debated about endlessly for another century?
That’s a sovereignty debate that I’m sure would engage far more people than are drawn to the infighting of would-be royals or pseudo-legal academic studies of times and events long past.
Also see these other columns by Ian Lind which originally appeared in Civil Beat: