It was just a month after the Kahoolawe 9 landed on Kahoolawe in the protest that launched the Protect Kahoolawe Ohana.
Gail Kawaipuna Prejean brought the focus back to Oahu by organizing a day-long rally to protest the military’s training and occupation of Makua Valley.
Here are two images from that long-ago day.
And neither is the Kingdom of Hawaii.
At least that’s the implication of this law review article on the claims of the so-called “Republic of Texas” by the late Texas attorney Ralph Brock (“The Republic of Texas is no more”: An Answer to the claim that Texas was unconstitutionally annexed to the U.S.).
The ROT is a sovereignty group right in the heart of the Big TX, which claims Texas hasn’t really been a state all this time because there was no treaty of annexation. Sound familiar? The Hawaiian sovereignty movement is tracking over the same issues, so the analysis should be of interest to all of us here.
The claim is now quite common among Hawaiian activists. No treaty of annexation? Then annexation never really happened, and Hawaii today is not really part of the United States.
Texas and Hawaii. Same claims, same answer.
The first parts of the article deal with the history of Texas, but Section IV on laws of annexation, and Section V on international law, are directly relevant to the Hawaiian claims.
The author notes what should be obvious, but apparently isn’t: “…the Supreme Court is the final arbiter of the question whether an act of Congress·is constitutional.” In this regard, the author cites a series of U.S. Supreme Court cases recognizing the authority of Congress to annex territory by joint resolution as an alternative to a treaty of annexation.
One is the 1901 case of De Lima v. Bidwell. Here’s an excerpt from the decision.
By Article II, Section 2 of the Constitution, the President is given power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur;” and by Article VI, “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land.”
It will be observed that no distinction is made as to the question of supremacy between laws and treaties except that both are controlled by the Constitution. A law requires the assent of both houses of Congress, and, except in certain specified cases, the signature of the President. A treaty is negotiated and made by the President, with the concurrence of two thirds of the senators present, but each of them is the supreme law of the land.
As was said by Chief Justice Marshall in United States v. The Peggy, 1 Cranch 103, 5 U. S. 110:
“Where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court, as an act of Congress.”
And in Foster v. Neilson, 2 Pet. 253, 27 U. S. 314, he repeated this in substance:
“Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself without the aid of any legislative provision.”
So, in Whitney v. Robertson, 124 U. S. 190:
“By the Constitution, a treaty is placed on the same footing, and made of like obligation with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both if that can be done without violating the language of either, but if the two are inconsistent, the one last in date will control the other, provided always that the stipulation of the treaty on the subject is self-executing.”
To the same effect are the Cherokee Tobacco, 11 Wall. 616, and the Head Money Cases, 112 U. S. 580.
One of the ordinary incidents of a treaty is the cession of territory. It is not too much to say it is the rule, rather than the exception, that a treaty of peace, following upon a war, provides for a cession of territory to the victorious party. It was said by Chief Justice Marshall in American Ins. Co. v. Canter, 1 Pet. 511, 26 U. S. 542:
“The Constitution confers absolutely upon the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.”
The territory thus acquired is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.
Other cases over the years have similar reaffirmed the legal validity of annexation accomplished by a joint resolution of Congress, as was the case with both Hawaii and Texas.
The article then goes on to consider the question of international law, and focuses on two principles– acquisitive prescription and estoppel–which, the author contends, should put any legal questions to rest.
Basically, according to these principles, the passage of time “cures” effectively defects in the way a nation state has acquired territory.
Indeed, “[t]he basis of prescription in International Law is nothing else than general recognition of a fact, however unlawful in its origin, on the part of States.” Thus, if Texas annexation violated the United States Constitution, the indisputable fact is that Texas acquiesced in statehood for well over a century, and any illegality is irrelevant under international law.
When it comes down to it, the “no treaty” meme seems to have lots of political and social traction, but it’s not a winner in the legal sense.
Iolani Palace, January 1977.
The occasion was a rally supporting the fledging Hawaiian activist movement.
Apart from the main substance, I loved this sign warning of the dangers posed by falling flowers. It seems so local, and so perfect for the occasion.
Iolani Palace, late 1970s.
The dispute in a Wailuku courtroom last week over the request by a defendant to speak in the Hawaiian language called attention to a provision in the Hawaii State Constitution which makes Hawaiian an official language of the state, alongside English.
The incident prompted the Judiciary to enunciate a new policy to provide Hawaiian language interpreters “to the extent reasonably possible when parties in courtroom proceedings choose to express themselves through the Hawaiian language.”
There were frequent references to the constitutional provision in news accounts and social media, with some concluding there was no choice in the matter.
“I really don’t know how they could do anything else in as much as it is one of the two official State languages,” was a typical comment.
Article XV, Section 4, was proposed by the 1978 Constitutional Convention and approved by voters in that year’s election. It provides simply:
English and Hawaiian shall be the official languages of Hawaii, except that Hawaiian shall be required for public acts and transactions only as provided by law.”
In order to get a better sense of what the constitutional provision means, I went back to the proceedings of the 1978 Constitutional Convention, where the amendment originated.
So what did the delegates have to say about the second language provision?
Surprisingly, very little.
Standing Committee Report No. 57 included this brief comment when the proposal was submitted to the convention, recognizing the practical problems that would be created by an expansive view of Hawaiian as an official language equal in all respects to English.
Your Committee decided to make this amendment to the Constitution in order to give full recognition and honor to the rich cultural inheritance that Hawaiians have given to all ethnic groups of this State, by making Hawaiian an official language of the State. However, your Committee was cognizant of certain practical problems that might exist if Hawai‘i was declared an official language without any proviso. The committee feared that all official acts and transactions might have to be in Hawaiian, such as statutes, proceedings of the legislature and judicial decisions. At this point in history, it might be too expensive and impractical to require both languages in these situations. The committee decided that it would be more sensible to delegate discretion to the legislature in determining the appropriate documents and acts to be in both languages. (Standing Committee Report No. 57, reprinted in Proceedings of the Constitutional Convention of Hawai‘i at 637 (1980).) (Emphasis added.)
And even less was said when the proposal came up for discussion and debate in by the Committee of the Whole.
When the “second language” proposal came up, the chairman had a hard time getting any comments.
The next section is listed “Official Languages.” The floor is open for discussion on official language. Is there any discussion? Second time, any discussion on it? Third and last time…
Finally, Delegate Helene Hale from Hilo said she supported it because she could remember when election ballots had been printed in both English and Hawaiian.
Then Delegate Fenchy DeSoto added her brief thoughts, which minimized the expected impact of becoming an official language.
This section in no way dictates that all laws and all official documents–and that teachers shall have to teach in Hawaiian. All it does is give recognition that English and Hawaiian shall be the official languages of Hawaii, except that “Hawaiian shall be required for publicactsandtransactionsonlyasprovidedbylaw.“ So there’s no law directing that that is going to happen.
Finally, Delegate Calvin Ontai:
I’d like to speak for this proposal. I see nothing harmful here. It does no harm, and it does some good. And anytime the balance of the scale tips one way, I think it should be passed.
And that’s it.
By comparison, debate went on for some time on amendments requiring Hawaiian language, culture and history to be taught in schools, and protecting traditional and customary cultural practices. Those debates and discussions take up many pages in the transcript of the Con Con proceedings. And, of course, the proposal to create an Office of Hawaiian Affairs was extensively debated.
But creating a second official language seemed to be an afterthought, sort of an add-on to the other amendments that seemed much more relevant and important at the time.
So although interpreting a provision like this often tracks back through its legislative history or, as in this case, the records of the Constitutional Convention, it doesn’t appear to shed much light on the intent of the delegates when they almost offhandedly approved the state’s second official language.