Historical Context

The Hawaiian Kingdom was a fully recognized sovereign state in the 19th century, maintaining over 90 diplomatic legations and consulates worldwide, including one in Washington, D.C. Its sovereignty was acknowledged through treaties with major powers, including the United States, via the 1849 Treaty of Friendship, Commerce, and Navigation. However, in 1893, a coup d’état orchestrated by U.S. citizens with military support unlawfully overthrew the Hawaiian Kingdom government. This constituted "an act of war", in violation of international law.

The annexation of Hawai‘i by the United States in 1898, conducted via a Joint Resolution of Congress rather than a treaty, further compounded these violations. International law requires that annexation be based on mutual agreement, which was absent in this case. The United States formally acknowledged its role in the illegal overthrow in its 1993 Apology Resolution, stating that the Hawaiian people never relinquished their inherent sovereignty or claims to national lands.

The "Procedures" must be analyzed within this historical and legal context, as they attempt to establish a framework that disregards the pre-existing sovereignty of the Hawaiian Kingdom.

Evaluation of the "Procedures"

The "Procedures" outline a process by which a Hawaiian government can seek formal recognition by the United States. This process involves steps such as drafting a governing document, conducting referendums, and certifying the government under U.S. oversight. While framed as an effort to empower  Hawaiians, the "Procedures" are legally and ethically flawed.

1. Violations of the Laws of War and the Law of Belligerent Occupation

Under the laws of war, particularly the Hague Regulations of 1907, an occupying power is required to respect the laws in force in the occupied territory (Article 43). Additionally, Article 54 of the Fourth Geneva Convention prohibits the occupying power from altering the status of officials in occupied territories.

The "Procedures" violate these principles by:

- Disregarding Existing Laws: The Hawaiian Kingdom's legal framework remains the de jure law of the land under international law. By promoting the establishment of a new Hawaiian government, the U.S. disregards its obligation to administer Hawaiian Kingdom laws.

- Imposing U.S. Authority: The creation of a Hawaiian government under the "Procedures" would be subject to U.S. oversight, further altering the status of the Hawaiian Kingdom's officials and governance structures.

2. Violations of Treaty Law

The Hawaiian Kingdom’s perpetual treaties with the United States and other nations remain valid under international law. These treaties, including the 1849 Treaty of Friendship, affirmed the Hawaiian Kingdom's sovereignty and independence.

The "Procedures":

- Contravene Treaty Obligations: By failing to engage directly with the Hawaiian Kingdom government and instead creating a framework for a new Hawaiian "entity", the U.S. breaches its treaty obligations to respect the Kingdom’s sovereignty.

- Undermine International Law: Treaty law under the Vienna Convention requires states to honor their international agreements in good faith. The "Procedures" reflect bad faith by sidestepping the Hawaiian Kingdom’s established legal status.

3. Violations of U.S. Constitutional Law

The U.S. Constitution recognizes treaties as the "supreme law of the land" (Article VI, Clause 2). The annexation of Hawai‘i via a Joint Resolution, rather than a treaty ratified by the Senate, violates this constitutional principle. And violates the many perpetual treaties between the Hawaiian Kingdom and the U.S.

The "Procedures":

- Perpetuate Constitutional Violations: By establishing a new Hawaiian government under U.S. oversight, the "Procedures" deepen the constitutional illegitimacy of U.S. actions in Hawai‘i.

- Misclassify Aboriginal Hawaiians: Treating Aboriginal Hawaiians as akin to a Native American tribe ignores our status as citizens of a sovereign state, conflicting with constitutional principles of equal protection and due process.

4. Violations of Human Rights Law

The right to self-determination, recognized under Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), is fundamental to international human rights law.

The "Procedures":

- Deny Self-Determination: By subjecting Aboriginal Hawaiians to a U.S.-controlled framework, the "Procedures" deny us the right to freely determine our political status and pursue our economic, social, and cultural development.

- Perpetuate Colonialism: Framing the "Procedures" as a pathway to self-governance is a continuation of colonial practices that erode Aboriginal Hawaiian identity and sovereignty.

5. Erosion of Hawaiian Identity and Sovereignty

By creating a new Hawaiian government under U.S. oversight, the "Procedures" reframe the Hawaiian Kingdom as a domestic entity rather than a sovereign state. This mischaracterization:

- Erodes National Identity: The Hawaiian Kingdom is a nation-state, not a Native American tribe. The "Procedures" misrepresent its history and status.

- Legitimizes Occupation: By reducing Hawaiian sovereignty to a framework of recognition under U.S. law, the "Procedures" effectively legitimize the U.S. occupation.

Conclusion

The "Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community (43 CFR Part 50)" are fundamentally flawed. They violate the laws of war, international humanitarian law, treaty law, U.S. constitutional law, and human rights law. Moreover, they perpetuate the historical injustices inflicted upon the Hawaiian Kingdom and its people by disregarding our sovereignty and self-determination.

Rather than imposing a U.S.-controlled framework, the United States must acknowledge the continued existence of the Hawaiian Kingdom and engage in good-faith negotiations with its government. This includes addressing the illegal occupation and recognizing the inherent rights of Aboriginal Hawaiians. Only through such actions can the United States begin to rectify the historical and legal wrongs that continue to impact the Hawaiian Kingdom and its people.

Further reading:

The Overthrow of the Hawaiian Kingdom: A Legal Overview 

Kaho'olawe Transfer Lawsuit

A Legacy of Theft: Reparations for Aboriginal Hawaiians

Hawaiian Succession Laws & Why I Have the Right to Be Queen (and Why It’s Not Just a Royal Fantasy)