Don’t call Dr. David Keanu Sai a sovereignty activist. Despite decades of research into the 1893 overthrow and ongoing occupation of the Hawaiian Kingdom, the UH faculty member and political scientist takes pains to avoid the word “sovereignty” and emphasizes that he is not a political activist.
Sai’s low-key approach is unusual in a field that “still has the air of conspiracy theory,” as one newpaper put it last year. Yet, the idea that the Hawaiian Kingdom exists as a nation illegally occupied by the United States has become so legitimized that it was recently a Maui County Council agenda item.
In a May 15 meeting of the County Council Planning and Sustainable Land Use Committee, Chair Tamara Paltin invited Sai to present an “Update on Land Use and Planning in Consideration of Hawaii’s Status Under International Law.” Paltin is currently investigating disputes regarding ceded lands (lands that were designated as “Crown Lands” during the Hawaiian Kingdom but following the overthrow were considered surrendered to the U.S. as government lands).
“That’s assuming something got ceded,” Sai told the committee. He added that a better term would be “seized lands.”
Because of statements like that “A lot of people tend to paint this image of me as if I’m a Hawaiian activist,” Sai said. “A lot of people think I’m in Hawaiian Studies and I say, ‘Hey, that’s racial profiling,’” he added with a laugh.
Sai’s roots as a leading expert on the overthrow and occupation of the Hawaiian Kingdom come from a surprising place: the U.S. Military. As an artilleryman, he gained a sense of pragmatism and the importance of drawing conclusions based on comprehensive intelligence, which during his military tenure often related to the Gulf War. As he learned about the Iraqi occupation of Kuwait, Sai noticed a familiar pattern, which he outlined in a video shown to the committee.
Sai learned from Desert Storm intelligence briefings that after invading Kuwait, Iraq established a puppet government called the Provisional Government of Kuwait. “And here I’m looking at Hawai‘i and these guys [who overthrew the Hawaiian Kingdom government] called themselves the Provisional Government of Hawai‘i. And then, later, that Provisional Government of Kuwait changed its name to the Republic of Kuwait. That’s exactly what the provisional government did in Hawai‘i. They changed their name to the Republic of Hawai‘i and then asked to be annexed, just as the Republic of Kuwait was asking to be annexed… they were disguising themselves to be Kuwaitis when they were in fact Iraqi nationals. And then just as Iraq unilaterally seized Kuwait, the United States did the same in 1898 in a joint resolution of Congress.’
“The parallels were unbelievable and I quickly saw Hawai‘i’s situation,” he said.
Subsequent research caused Sai to conclude that Hawai‘i is not not a part of the United States “and that we’re occupied… Just as Iraq was not complying with the law of occupation – the Hague and Geneva Conventions – the United States was not complying with the law of occupation either.”
Since then, he has worked to deepen his understanding of the situation, and share his knowledge with others through his work as an educator and in legal cases regarding the Hawaiian Kingdom.
Sai analyzes international law and precedence, and uses that framework to study the actions and events related to the Hawaiian Kingdom’s independence, the overthrow of Queen Lili‘uokalani, and how the United States’ takeover of the Hawaiian Kingdom government fits that framework.
Such disputes raise the fundamental question of jurisdiction: Who has the official power to make legal decisions and judgements when a sovereign nation is occupied by another?
In Kuwait’s case, despite the Iraqi occupation, the U.S. and the world understood that Kuwait still existed, Sai said. During that time, Iraq was still expected to administer Kuwaiti law until a treaty of peace was signed.
“Jurisdiction under international law is through treaties,” Sai said. “One country can have jurisdiction over another country under the Hague Convention, the Vienna Convention, or the Status of Forces Agreement.”
These agreements have been the norm in the history of the United States’ land acquisition. Through treaties, such as the 1803 treaty with France that set the terms of the Louisiana Purchase, lands were voluntarily ceded from foreign countries. In the case of the Mexican Cession that included what’s now California and Texas, land was acquired through post-war treaty.
When it comes to Hawai‘i, however, no such treaty of annexation between the United States and the Hawaiian Kingdom exists.
Instead, the annexation of Hawai‘i and the long-held belief that it is a part of the United States stems from an 1898 joint resolution of the U.S. Congress.
But, Sai clarified, “A joint resolution is not a treaty.”
That means the joint resolution that “annexed” Hawai‘i had no authority and jurisdiction within the Hawaiian Kingdom, a sovereign nation recognized by other countries worldwide. Yet, the U.S. continued to pass laws governing the occupied kingdom, including the Organic Act of 1900 which named Hawai‘i a territory of the U.S. and the 1959 Statehood Act which enrolled Hawai‘i as the 50th state.
Sai recalled the words of Nebraska Sen. William Allen, who opposed the 1898 joint resolution. “[A]n attempt to annex or acquire territory by act or joint resolution of Congress is in violation of the letter, spirit, and policy of the Constitution… I utterly repudiate the power of Congress to annex the Hawaiian Islands by a joint resolution such as passed the Senate. It is ipso facto null and void.”
The U.S. Supreme Court has also recognized the limit of municipal laws. “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” Sai said. “Operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.”
So, if the so-called annexation of Hawai‘i has no authority and the Hawaiian Kingdom still exists, but under occupation, what does that mean to us today?
In 1893, following the overthrow, President Grover Cleveland addressed Congress about what he called an “armed invasion.” Said Cleveland, “By an act of war the Government of a friendly and confiding people has been overthrown.”
To Sai, “Overthrowing the government does not equate to an overthrow of the Hawaiian Kingdom as an independent state.”
To understand the implications, one has to look at the international law of occupation that existed at the time the American occupation began – January 17, 1893, the date of the overthrow.
“The law of occupation in 1893 obligated the United States to administer Hawaiian Kingdom law,” said Sai. However that never happened.
One legal consequence of the government failing to fulfill these obligations or properly annex Hawai‘i involves land titles. Hawaiian Kingdom law requires these transactions to be signed by a Hawaiian Kingdom notary. But none existed after the overthrow.
“Deeds of conveyance of real property and mortgages after January 17, 1893 could not be considered lawfully executed,” said Sai.
“As you can see, it’s not a native issue; it’s a governmental issue where everyone is affected.”
In 1996 the Council of Regency was formed, authorized by a provision in the Hawaiian Kingdom Constitution of 1864 for times when there is no monarch.
The Council was formed similar to other governments in exile in World War II, and includes Sai in the Cabinet Council as chairman and minister of the interior.
Sai explained the three phases of the Council of Regency’s strategic plan: Verification of the Hawaiian Kingdom as an independent state and subject of international law (phase one), exposure of Hawaiian statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels (phase 2), and restoration of the Hawaiian Kingdom as an independent state and a subject of international law (phase 3).
By 1999, the Council of Regency was representing the Hawaiian Kingdom at the Permanent Court of Arbitration, an intergovernmental organization in the Netherlands formed under the 1899 Hague Convention to solve international disputes. The case involved an individual who claimed the Hawaiian Kingdom was obligated to defend him from U.S. law. As a result of the proceedings, the first phase of the Council of Regency was completed: The Permanent Court of Arbitration verified the Hawaiian Kingdom to be an independent state and subject of international law, and the Council of Regency as the government of the Hawaiian Kingdom.
The case caught the attention of Rwandan Ambassador Jacques Bihozagara. According to Sai, Bihozagara, a survivor of the Rwandan genocide, urged the Council to report to the United Nations General Assembly about the prolonged occupation of Hawai‘i, because “Rwanda understands what happens when international law is violated but the international community does not step in until it’s too late.” The Council declined Bihozagara’s offer and decided to engage, educate, and build community around the issue instead.
So began phase two of the Council of Regency’s plan, exposure of the facts through “education, education, education.”
This phase, still ongoing, has unfolded through Sai’s work as an educator within the University of Hawai‘i system, the publishing of his history book Ua Mau Ke Ea Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands, corrections to American-centric textbooks, articles published for the National Education Association, journal papers, and more.
In turn, that’s resulted in more recognition and exposure. Last year, Dr. Alfred M. deZayas, professor of international law and then United Nations independent expert, wrote in a memo: “I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).”
“I’m not into arguing, I’m just into defending the research,” Sai stated, emphasizing again the need to present facts without politicizing the issue.
Given the politically charged situation, that’s asking a lot, especially when war crimes enter the discussion. Sai listed possible crimes committed by the United States and its agents in the Hawaiian Kingdom, including denationalization (the obliteration of the national consciousness of an occupied state), pillaging, unlawful appropriation of property, depriving a protected person of a fair and regular trial, destruction of property, unlawful confinement of a protected person, removing protected persons from the country (shipping prisoners to Arizona), and involuntary conscription into the U.S. armed forces (the draft).
To be guilty of these crimes, it’s necessary for the perpetrator “to know the connection between his or her acts and the existence of occupation,” Sai said. Part of his goal is that pleading ignorance on the issue will no longer be an acceptable excuse, now that he and his colleagues are turning the tide with research and education.
Yet, Sai maintained that he is committed to solutions, not exacerbating existing problems.
To this end, the Council of Regency announced in 2014 that laws that “have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be provisional laws of the Realm subject to ratification of the Legislative Assembly of the Hawaiian Kingdom once assembled.” A provision excludes laws that are contrary to the spirit of Hawaiian Kingdom law, the international laws of occupation, or international humanitarian law.
And last month, the Council of Regency announced that a Royal Commission of Inquiry will be formed to thoroughly investigate the U.S. occupation of Hawai‘i, its consequences, and the possibility of war crimes committed. The selection of academics from around the globe to serve on the Commission is still underway.
“For the first time, this Commission of Inquiry is gonna be huge, broad, task-oriented, unbiased, professional,” Sai said. “That’s all we have to engage attacks. We can only speak to professionalism; we can only speak to qualification; we can only speak to demeanor and having a reputation above reproach.”
In terms of immediate practical advice for the County Council in righting a 100-year-old historical wrong, Sai suggested a task force, which “can be established to look into issues of taxation, legislation, and to seek out experts for recommendations for decision-making,” specifically as they relate to Hawai‘i’s status under international law.
“I found Dr. Sai’s approach of providing information and education as a means of creating awareness a good way to approach an emotionally charged subject like this,” said Councilmember Shane Sinenci after Sai’s presentation. “I appreciate that Dr. Sai asked that people take time to understand the information that he provided and pause and reflect. It’s important we all be informed, especially legislators, so that we can ask the right questions and make better informed decisions.”
Sinenci added that “Understanding how native people were treated by the government after Annexation helps to explain the current sense of disenfranchisement felt by Native Hawaiians. It is encouraging to see the resurgence of Hawaiian culture in today’s society. Only by understanding the past, can we move forward into the future.”
Indeed, for his dedication to the facts, some of Sai’s most moving words were the aspirational thoughts shared in his conclusion, in which he implored the audience to be unafraid to look to the past in order to move forward.
“This is a kakou thing. This is how we move forward in light of our situation, but we cannot whitewash anymore what happened in our past,” said Sai. “The practical value of history is that it’s a film of the past, run through the projector of today, onto the screen of tomorrow. That film never changes but you have to update the projector. Once you update the projector, you now see something that you didn’t see before, and now it’s called decision-making. Don’t make a decision until you get the information. That’s the process.”
Still have questions? As Dr. Keanu Sai said, that’s a good place to start. Watch his presentation to the PSLU Committee at Mauicounty.us. His blog is at Hawaiiankingdom.org/blog.
Cover design by Darris Hurst and Brittany Skiller
Image of Lili‘uokalani courtesy Wikimedia Commons
Image of Dr. Sai by Tommy Russo