Dear Esther Kia‘aina, Assistant Secretary of Insular Affairs at the Department of Interior:

On August 2, 2014, you were one of four individuals honored by the Prince Kuhio Hawaiian Civic Club at the Waikiki Beach Marriott Hotel. The event was well organized and attended. You also sat on the Department of Interior panel that recently held 15 community meetings throughout the islands on a proposed rule making that would provide federal recognition to Native Hawaiians as a domestic tribe.

I was present at the function and during your acceptance speech you provided commentary on the recent Interior hearings. You stated that the people who said “no” to the proposed rulemaking were very disrespectful to the process and you then followed with disparaging remarks. I heard you also state that Hawaii’s sovereignty was lost in 1893 and that, as a self-declared pragmatist, you would seek federal recognition.

What I found troubling was your cavalier attitude of unbridled bias when you’re supposed to be a federal government official who should at least appear neutral.

Concerned community member holds up sign during a Department of the Interior panel during a public meeting on whether the United States should establish a government-to-government relationship with Hawaii’s indigenous community held at the Hawaii State Capitol auditorium on June 23, 2014

A man adds written testimony to his verbal arguments during a recent hearing on the possible future relationship between federal authorities and Hawaiians.

PF Bentley/Civil Beat

This was reminiscent of statements you made last year on the PBS Hawaii television show, “Insights: Native Hawaiian Sovereignty,” when you served as a government official of the state of Hawaii.

You stated: “I would advocate that rather than using a legal basis for the pursuit of justice, that we take the other route, which would be based on policy reasons, and the reasons for that is, I believe, it’s a very complicated question with regard to claims arising out of the overthrow.

I acknowledge illegality, but the remedy must be done within the confines of modern domestic and international law. And as far as I’m concerned, unless the Admissions Act, and the Annexation Act, has been repealed, or ruled invalid in a U.S. court of law, it is hard for me to be in pursuit of an alternative form other than subtle recognition.”

Without a treaty, sovereignty remains with the Hawaiian Kingdom, and not the United States, which is why Hawaii has been under an illegal and prolonged occupation since the Spanish-American War in 1898.

As a political scientist, I understand the mechanics of government, especially, in this case, the executive branch. When you made those statements in 2013, you did so as deputy director of the state of Hawaii Department of Land and Natural Resources, and when you made those recent statements at the Waikiki Marriott Hotel, you did so as an official of the DOI.

Since you were not a politician running for office, I could take your statement in Waikiki to be considered current policy and a position statement by the federal government’s executive branch regarding the sovereignty of Hawaii. As a political appointee, you are supposed to work with the secretary of the Interior to implement policies approved by the president as the chief executive.

It is in your capacity as a government official that I write this open letter.

Since the Hawaiian Kingdom was an independent and sovereign state in the 19th century, international law provides for the presumption of its continued existence unless the United States can provide rebuttable evidence under international law that Hawaii’s sovereignty was extinguished.

The sources of international law are treaties or agreements “between” the United States and Hawaii, and not the domestic laws that are limited “within” the territory of the U.S.

The difference between an assumption and a presumption is that the former is a conclusion without facts, and the latter is a conclusion based on facts. A presumption, however, is only rebuttable with “legally relevant facts” that would terminate the continuity of the Hawaiian Kingdom under international law.

In 1988, a legal opinion from the Department of Justice’s Office of Legal Counsel (OLC) could not explain how a joint resolution of Congress could have annexed the Hawaiian Islands in 1898, because congressional laws have no force and effect beyond the borders of the U.S. The OLC cited Congressman Thomas Ball, a Democrat from Texas, who characterized the annexation of Hawaii by joint resolution as “a deliberate attempt to do unlawfully that which can not be lawfully done.”

In the Senate, Augustus Bacon, a Democrat from Georgia, stated, “the annexation of foreign territory was necessarily and essentially the subject-matter of a treaty, and that it could not be accomplished legally and constitutionally by a statute or joint resolution.”

This prompted the OLC to conclude, “it is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.”

The U.S. Supreme Court also concluded, “The laws of no nation can justly extend beyond its own territories. … They can have no force to control the sovereignty … of any other nation.”

The 1988 OLC opinion clearly undermines the United States’ claim of sovereignty over Hawaii. What followed the joint resolution were other congressional acts establishing the territory of Hawaii in 1900 and the state of Hawaii in 1959. Because the OLC were unclear regarding the joint resolution, it would be equally unclear as to how the Congress created the territorial and state of Hawaii governments in a foreign country.

Without a treaty, sovereignty remains with the Hawaiian Kingdom, and not the United States, which is why Hawaii has been under an illegal and prolonged occupation since the Spanish-American War in 1898.

There clearly appears to be a conflict between the current policy of the Obama administration and the law regarding Hawaii’s sovereignty from the 1988 OLC opinion.

Since the Obama administration is a government of transparency, I am respectfully calling upon you, as assistant secretary of Insular Affairs, to immediately submit a formal request to have the OLC provide an exhaustive legal analysis within the framework of international law that shows the Hawaiian Kingdom was extinguished. To not do so is to admit to the United States’ illegal occupation of Hawaii.

I also request that you provide to the OLC my doctoral dissertation, brief, and law article that addresses the continuity of the Hawaiian Kingdom. Until then, please refrain from reciting congressional acts as if it extinguished the Hawaiian Kingdom.

I look forward to your prompt response.

Dr. Keanu Sai

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About the Author

  • Keanu Sai
    Keanu Sai has a Ph.D. in political science from the University of Hawaii at Manoa specializing in international relations and public law. His doctoral research focused on the political and legal history of the Hawaiian Kingdom since the 18th century to the present. He is a lecturer in Hawaiian Studies at the University of Hawaii Windward Community College.