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Was annexation legal?

(back to Essentials)

A group called the Hawaiian Patriotic League recently produced and is showing a video “We Are Who We Were” which claims that the annexation of Hawaii which was agreed to by the governments of the Republic of Hawaii and the United States in 1898 “never happened” and was an “illusion” because it was done, on the part of the United States, by joint resolution rather than treaty.

The annexation of Hawaii in 1898 was opposed by the U.S. cane sugar growers from Louisiana, beet sugar growers from California and other states; organized labor who feared contract labor practices then used in Hawaii; anti-expansionists who thought it was imperialistic and by those who thought Hawaii’s mixed population was unsuitable for U.S. citizenship. Some of them raised the same constitutional argument (that annexation could be accomplished only by treaty and not by joint resolution). “Empire Can Wait”, Osborne p. 112.

This argument was also raised when Texas was annexed by authority of a joint resolution rather than by treaty about 50 years earlier. “Brief Digest of Various Annexations of Foreign Territory by the United States”, Castle, 996.9 c278 Mission Houses Library.

The argument did not persuade other members of Congress in 1846 or 1898 and its proponents apparently did not consider it worth taking to the U.S. Supreme Court.

The Newlands Resolution passed the House June 15, 1898 209 to 91 and the Senate July 6, 1898 42 to 21 (26 abstaining) and the measure was signed by President McKinley the next day. “Empire Can Wait”, page 121. Note: Treaties require ratification by 2/3rds of the Senate only. Article II, Sec 2, U.S. Constitution. The Newlands Resolution, annexing Hawaii, was approved by 2/3rds or more of those voting in both the Senate and House.

So far as we are able to determine, there is no legal authority for the argument that annexation of a foreign nation, agreed to by the government of the foreign nation, cannot be accomplished on the part of the United States by the President acting under authority of both houses of Congress.

In a 1903 criminal case, Territory of Hawaii v. Mankichi, 190 U.S. 197 (1903) the U.S. Supreme Court noted that “the status of the islands and the powers of their provisional government were measured by the Newlands resolution[.]” That point was made even more forcefully in a separate opinion in the case filed by by Justice Harlan. Justice Harlan disagreed with the court on a different issue which concerned Hawaiian law as to jury trials, but on the issue of the validity of the Newlands resolution, he agreed fully with the majority, stating, “By the resolution, the annexation of the Hawaiian Islands became complete, and the object of the proposed treaty, that ‘those islands should be incorporated into the United States as an integral part thereof, and under its sovereignty’ was accomplished.”

The Hawaiian Patriotic League also argues that the annexation was illegal because the indigenous Hawaiian people never consented through a plebiscite or referendum. Petitions filed with the U.S. Congress at the time do show significant opposition on the part of the citizens of Hawaiian ancestry (who in 1898 made up about 30% of the inhabitants of Hawaii) and it is true that no plebiscite or referendum was taken.

However, plebiscites were not taken in the annexations of Louisiana, Texas, California or any of the territories which now make up the United States. Nor does history show that Kamehameha took a plebiscite or obtained the consent of the residents of Oahu before he annexed that island in 1795 or when his forces reinvaded it in 1804. Likewise there is no indication from oral histories or legends that Kahekili, the paramount chief from Maui, sought the consent or took anything like a plebiscite of the residents when he annexed Oahu in 1782 or 1783 or during the 12 or 13 years he held it until Kamehameha’s invasion. Nor apparently did the immigrants from Tahiti, who arrived in about the year 1,000 bringing the alii, take a plebiscite from the then residents, descendants of the earlier settlers from the Marquesas. Nor apparently did the immigrants from the Marquesas islands, who arrived in about 300 to 500 ask the consent of or take a plebiscite from the menehunes who, according to legend, were the original settlers of the Hawaiian islands.

The only plebiscite relating to joning the United States was the one taken in 1959 when Hawaii’s people voted overwhelmingly in favor of Statehood.

Did Hawaiians benefit from annexation?

Judging by population, they benefitted considerably. The Hawaiian population (including full and part Hawaiian) declined throughout the period of the monarchy but then began to increase during the Territorial period after Hawaii became part of the United States and has steadily increased since then. For years 1778-1896 see: Native Hawaiian Data Book 1998, Table 1.1. For years 1900 through 1940 see: Table 1.d. For years 1950 through 1990 see: Table 1.e. OHA says that “Native Hawaiians with less than 100% blood quantum are the fastest growing racial group in the state.” Table1.14

Similarly, the political and economic power of Hawaiians increased dramatically once Hawaii became a Territory. University of Hawaii Political Science Professor Robert Stauffer writes:

It was a marvelous time to be Hawaiian. They flexed their muscle in the first territorial elections in 1900, electing their own third-party candidates over the haole Democrats and Republicans…The governor-controlled bureaucracy also opened up to Hawaiians once they began to vote Republican.

By the ’20s and ’30s, Hawaiians had gained a position of political power, office and influence never before–nor since–held by a native people in the United States.

Hawaiians were local judges, attorneys, board and commission members, and nearly all of the civil service. With 70 percent of the electorate–but denied the vote under federal law–the Japanese found themselves utterly shut out. Even by the late 1930s, they comprised only just over 1 percent of the civil service.

This was “democracy” in a classic sense: the spoils going to the electoral victors.

***

Higher-paying professions were often barred to the disenfranchised Asian Americans. Haoles or Hawaiians got these. The lower ethnic classes (Chinese, Japanese and later the Filipinos) dominated the lower-paying professions.

But even here an ethnic-wage system prevailed. Doing the same work, a Hawaiian got paid more per hour than a Portuguese, a Chinese, a Japanese or a Filipino–and each of them, in turn, got paid more than the ethnic group below them.

Robert Stauffer, “Real Politics”, Honolulu Weekly, October 19, 1994 at page 4.

The “decline” in the standard of living of Native Hawaiians can only be tracked to the early 1950s, when the Democratic Party began its political dominance of government as a result of the “Democratic Revolution of 1954″. Hawaiians, being overwhelmingly Republican, found themselves displaced from such well-paying jobs as the civil service and Department of Education which they had previously controlled.