Is there a Treaty of Annexation between Hawaii and the United States? Dialogs between Williamson Chang and Ken Conklin


by Kenneth R. Conklin, Ph.D.

SUMMARIES OF THE TWO DIALOGS (Full text of the dialogs is copied after the summaries)

Chang-Conklin dialog #1, December 17-18 of 2015, Honolulu Civil Beat -- Summary

On December 17, 2015 an article by Williamson Chang, Professor of Law at the University of Hawaii, was published in the online newspaper Honolulu Civil Beat. The article was focused on a decision to cancel an election of delegates to a month-long meeting to write a governing document for a future Hawaiian tribe, and to go forward with the meeting by seating all the candidates; following an injunction stopping the election that was issued by the U.S. Supreme Court. In his article Professor Chang challenged the legitimacy of the group that sponsored the election. He explained why the Supreme Court injunction was correct under the 15th Amendment of the U.S. Constitution, and argued that the delegates who attend the meeting, including himself, are probably in contempt of court for violating the injunction.

Ken Conklin wrote an online comment chiding Mr. Chang for acknowledging that U.S. law has jurisdiction in Hawaii when Chang has spent decades writing articles and teaching students that there is no Treaty of Annexation and therefore the U.S. has no jurisdiction in Hawaii. Conklin predicted Chang would reply that he is merely constructing a hypothetical despite the fact that Chang's article made no mention it was merely a hypothetical.

Williamson Chang responded as Conklin had predicted he would, saying that Hawaii is under military occupation by the U.S. and therefore U.S. law can be applied in Hawaii but Chang hinted that later the U.S., State of Hawaii, and OHA can be sued for reparations. Chang's response began with personal attacks against Conklin, and then launched into a lengthy summary of Chang's position on the issues including citations to other articles he has written about them.

Conklin's lengthy rebuttal delved into details about points Chang had asserted in those other articles, especially regarding Chang's claim that the State of Hawaii does not exist because neither the Republic, Territory, nor State has precisely defined the meets and bounds of its borders. Conklin also described the history of how the Treaty of Annexation was ratified.

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Chang-Conklin dialog #2, January 8-16 of 2017, The Garden Island [Island of Kaua'i daily newspaper] -- Summary

1/08/17: A letter to editor by a beneficiary of Hawaiian racial entitlements, who makes frequent online comments that are often angry, inarticulate and inchoate, de-legitimizes decisions of various local government officials by repeating the often-heard assertion that there is no Treaty of Annexation and challenges anyone to show it.

1/10/17: Ken Conklin's 7-paragraph reply describes how the Treaty was ratified by both sides and includes a link to a webpage which provides full text of the Treaty.

1/12/17: Williamson Chang's 17-paragraph response provides some points he asserted in two of his publications -- similar to what he wrote in his response to Conklin in the Honolulu Civil Beat in December 2015. Chang adds that the Republic of Hawaii actually resisted being annexed in 1898

1/16/17: Ken Conklin 9-paragraph rebuttal points out that no high official of the Republic protested annexation, and on the contrary President Dole was delighted to serve as the first Governor of the Territory and then as judge on the U.S. District Court in Honolulu. Conklin also notes that in Lili'uokalani's lawsuit against the U.S. decided in 1910, she never claimed that the treaty was invalid, nor that annexation had not occurred, nor that the ceded lands belonged to ethnic Hawaiians as a racial group


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CHANG-CONKLIN DIALOG #1, DECEMBER 17-18 OF 2015, HONOLULU CIVIL BEAT -- FULL TEXT

http://www.civilbeat.com/2015/12/nai-aupuni-decision-to-sidestep-legal-challenge-raises-new-legal-issues/
Honolulu Civil Beat, December 17, 2015

Nai Aupuni Decision To Sidestep Legal Challenge Raises New Legal Issues A law professor and Nai Aupuni delegate candidate explores the legality and impact of the decision to abandon the election and seat all 196 candidates.

By Williamson Chang

The Hawaiian people are in a real pickle. Nai Aupuni cancelled its delegate elections for a Native Hawaiian governance convention, but then allowed all candidates to become delegates.

I heard Nai Aupuni Board President Kuhio Asam on television Wednesday morning, and though he chose his words carefully, he implied that the 196 newly anointed delegates could draft documents of governance that meet the requirements of the U.S. Department of the Interior's conditions for a government-to-government relationship in the form of a federally recognized tribe.

This obviously raises a great many issues, the most important and immediate of which I'll attempt to address here.

1. Nai Aupuni is contempt of a Supreme Court order.

This double action of Nai Aupuni, I believe, is contrary to the order of the Supreme Court of the United States that 1) the election not take place now (before the issues are fully litigated) and 2) that no one be certified as a delegate. In short, the 15th Amendment of the U.S. Constitution was not meant to prevent race-based elections but to prevent the logical consequence of such race-based elections -- that is, race-based electoral bodies, like a legislature or a water district.

You cannot sidestep the 15th Amendment by creating a process which permits a race-based election, then when declared illegal, allows the governor or some other entity like Nai Aupuni to appoint only persons of one race to the positions that were up for election. That would completely defeat the purpose of the 15th Amendment.

2. Nai Aupuni has no authority -- by statute, charter, bylaw or the consent of the people.

Nai Aupuni has no legal authority to do what it has done. It has no charter, no bylaws, no power delegated by the Legislature or by the Office of Hawaiian Affairs, and no consent from the Native Hawaiian people to establish a constitutional convention. What gave Nai Aupuni the power to combine lists of Native Hawaiians, or the power to extend the deadline to register as a delegate, or the power to extend the voting deadline, or as was done Tuesday, the power to set a new deadline by which so-called candidate-delegates must confirm their interest or lose their right to attend the aha, or governance convention?

Nai Aupuni has no clear mandate to convene an aha. The Native Hawaiian people let Nai Aupuni have these powers in much the same way a party gathers at someone's house for a poker game to played by the rules each player, in turn, makes up.

In that sense, Nai Aupuni was a "party" where a "host," Nai Aupuni, set the rules, and Native Hawaiian electors and candidates simply complied with rules -- rules that no one had the power to enforce. As a candidate, what if I do not register by Dec. 22? Can Nai Aupuni really prevent me from going to its convention in Kailua? Does it have its own police?

3. Convention or Party? Which is it?

What prevents any person, Hawaiian or non-Hawaiian, from attending the Kailua meeting? If we treat, the convention as a "private party" then Nai Aupuni is a "host" -- perhaps it can ask you to leave, but what power does it have to enforce one's exclusion?

Nai Aupuni cannot claim that its rules are binding based on any claim of implicit consent that arises from Hawaiians registering on the roll. Nai Aupuni could only exclude one from the Kailua convention on the grounds that one is trespassing on private property, not because one fails to qualify as some kind of delegate.

Here are my thoughts on some possible problems.

4. Na'i Aupuni is in contempt of the Supreme Court order.

The Supreme Court order denies Nai Aupuni the right to "certify" the election, which must be taken to mean that the Supreme Court is denying Nai Aupuni the right to determine, in any possible fashion, who is going to be a delegate.

5. A right to race-neutral political bodies.

Any attempt of the people at this "party" or "convention" to draft governing documents would be also be in violation of the Supreme Court injunction. The Supreme Court stopped the election because the race-based election was part of a process that would arise from a group that was sufficiently quasi-political, and state sponsored, which would be acting in a political manner and was race-based.

Suppose a Southern state, after the Civil War, held elections allowing only one race to vote for the state legislature. Suppose the Supreme Court applying the 15th Amendment intervened and declared the election unconstitutional. The candidates for the state legislature could not simply skip the election, meet in the state house, as legislators consisting of only one race and start to pass laws as a legislature Such actions would defeat the purpose of the 15th Amendment.

The purpose of the 15th Amendment is not simply to stop race-based elections but to stop race-based or race-biased governmental bodies from being established. The amendment not only protects your right to vote, but protects your right to have race-neutral political bodies, such as legislatures, boards, water districts and other political organizations.

6. Are delegates who go to the February convention technically in violation of the Supreme Court order?

Another important legal and moral question is whether or not candidates who sign up for the convention by Dec. 22, based on Nai Aupuni's fiat, violate the 15th Amendment rights of other individuals by aiding and abetting in an action that is contrary to the spirit of an order of the Supreme Court.

7. What should candidate-delegates do?

The action that should be taken is to address the question to the attorney general of the United States, asking if delegates who participate in the February convention are acting contrary to a court order and violating in spirit the Voting Rights Act and the 15th Amendment.

The same would be true of the mediators hired to guide the convention. They are not being retained for the purpose of leading all the delegates in dancing the hokey-pokey. The mediators are being hired to guide the delegates through a political process which had the original intent of creating a government under the conditions imposed by the Department of the Interior. The Supreme Court order has put a hold on the process of creating a government entity.

8. Can "wanna-be" candidate-delegates participate in the convention?

Nai Aupuni's actions of calling off the election and empowering 196 persons to attend a political convention undermines the premises of the election and convention process. Certain persons such as Brandon Makaawaawa were turned away and not allowed to run because they were "too late."

Now it appears that nothing is ever too late. Moreover, it is now apparent that those who did not run for fear of not garnering enough votes but thought of running would be allowed to participate. Had those persons known that all candidates would be deemed delegates, they would clearly have put in their applications to be candidates. This raises the question as to whether the convention, or "party," should be open to anyone who attempted to be a candidate or even swears that they would have run.

9. Does U.S. District Court Judge Michael Seabright's ruling of "no state action" stand?

Although the Supreme Court did not specifically strike down the ruling of Judge Seabright, my position is that the Supreme Court implicitly rejected his views when they enjoined the election and certification of delegates. For the Supreme Court to reach the question posed by the 15th Amendment, it was necessary that the Court find sufficient "state action."

10. The liability of the U.S. Department of the Interior.

Interior established criteria which demanded a race-based convention, arising from a race-based election. If Nai Aupuni is held to violate the 15th Amendment, then is Interior in some sense secondarily liable for establishing the conditions which require a race based election and convention?

11. The role of the U.S. Department of Justice.

Thus, the United States is split -- between its Department of the Interior and the Civil Rights Division of the Department of Justice. The Justice Department cannot represent both its own Civil Rights Division, which enforces the Voting Rights Act, and the Department of the Interior, which here is contributing to a violation of that act. The Justice Department must hire outside counsel for one of those roles, or create a "Chinese Wall" between the deputy attorney generals who represent the DOI and those in the Civil Rights Division.

12. The liability of the State of Hawaii and OHA.

OHA provided funds that derived from crown and government lands, under a state statute to fund Nai Aupuni in creating both the election and the convention. In a crude sense, OHA simply "laundered" such money by passing it through an entity that supposedly cleansed the money of its state action "taint."

In view of the heightened scrutiny being applied by the Supreme Court, the act of providing the funding raises questions of whether OHA and the state knowingly and intentionally violated the Voting Rights Act. This may create a private cause of action for those harmed under section 1983, which provides damages relief for constitutional torts. However, my opinion on this matter is still in the research phase.

GUEST CONTRIBUTOR Williamson Chang is a professor of Law and member of the faculty senate at the University of Hawaii at Manoa. Professor Chang has been teaching at the University of Hawaii School of Law for 37 years. He specializes in water rights, Native Hawaiian rights, the legal history of Hawaii and conflict of laws.

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** Conklin 12/17/15 online comment on Chang essay:

For a long time Law Professor Williamson Chang has loudly proclaimed that Hawaii is not lawfully a part of the United States -- because, he says, there is "no Treaty of Annexation." That shibboleth has been adopted as a rallying cry by hundreds of Hawaiian independence activists who hold signs proclaiming it at public hearings, and have placed a couple thousand such signs on the grass at Iolani Palace and the National Mall in Washington D.C. More importantly, it has been used as the basis for the claim of "unrelinquished sovereignty" that is part of the propaganda for OHA's nationbuilding effort. Indeed, "no Treaty of Annexation" is so important that any ethnic Hawaiian who wanted to sign up for the racial registry "Kana'iolowalu" was required to solemnly swear, in writing, to believe in the gospel of unrelinquished sovereignty.

So it's refreshing -- indeed a real pleasure -- to see this same law professor repeatedly acknowledging in this essay that the United States has lawful jurisdiction and sovereignty in Hawaii. This essay will be introduced as evidence that will be used against Professor Chang when he is hauled before the Supreme Court of Ka Lahui, or the Reinstated Lawful Hawaiian Government, on charges of treason.

In this essay professor Chang clearly accepts the lawful force and effect IN HAWAII of the recent UNITED STATES Supreme Court injunction by Justice Anthony Kennedy, upheld by a majority 5-4 vote of the entire Court, prohibiting the counting of votes or certification of delegates in the Na'i Aupuni election. Chang correctly says the leaders of Na'i Aupuni are in contempt of that injunction when they certify as delegates all 196 candidates in that election. He says the delegates themselves will be technically in contempt of the spirit of the injunction when they attend the convention, and also the mediators and facilitators of the convention will be in contempt of the injunction as accessories. Chang writes "Na'i Aupuni is in contempt of the Supreme Court order. The Supreme Court order denies Nai Aupuni the right to "certify" the election, which must be taken to mean that the Supreme Court is denying Nai Aupuni the right to determine, in any possible fashion, who is going to be a delegate." That's strong language by Professor Chang showing his belief that an order by the UNITED STATES Supreme Court has lawful force and effect IN HAWAII.

I'm guessing that Professor Chang will try to say that in this essay he is not REALLY recanting his previous misguided assertions where he alleged there was no treaty of annexation, and that Hawaii still has unrelinquished sovereignty. I'm guessing Professor Chang will defend himself by saying this essay merely follows the internal logic of U.S. law by constructing a hypothetical "what if" scenario -- what if U.S. law were to be applied in this situation, then here would be the consequences. But today's essay by Professor Chang has absolutely no clues that he might be making a merely hypothetical argument -- he says things quite definitively. Any lawyer can be presumed to exercise care when writing an essay about law -- especially a Professor of law at the State's flagship university who has been teaching generations of lawyers for 37 years. No, this essay is very clearly a recanting of Professor Chang's previous assertions of "no treaty of annexation" and "unrelinquished sovereignty." And if Chang now tries to recant this recantment by claiming it is merely a joke or merely a hypothetical, then he will thereby lose all credibility for his future writings when readers will always wonder whether he really means what he seems to say or whether he isn't really saying what he seems to be saying. Just how far will Professor Chang descend into the rabbit hole of Alice in Wonderland?

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** 12/18/15 [by] Williamson Chang: A Reply to Kenneth Conklin: Gloating is Bad Form if one is Ignorant

Living in the same world with Kenneth Conklin seems to be an unfortunate price that one must pay to engage in debate on Hawaii and its history. As Shakespeare said in Hamlet:
Whether 'tis Nobler in the mind to suffer
The Slings and Arrows of outrageous Fortune,
Or to take Arms against a Sea of troubles

Yet, this time Kenneth Conklin has shot an "arrow over my house." In his gleeful response to my column on the legal problems of Na'i Aupuni his reaction is like that of a child that has caught a parent in an apparent misstatement. He says:

"For a long time Law Professor Williamson Chang has loudly proclaimed that Hawaii is not lawfully a part of the United States -- because, he says, there is "no Treaty of Annexation." That shibboleth has been adopted as a rallying cry by hundreds of Hawaiian independence activists who hold signs proclaiming it at public hearings, and have placed a couple thousand such signs on the grass at Iolani Palace and the National Mall in Washington D.C. More importantly, it has been used as the basis for the claim of "unrelinquished sovereignty" that is part of the propaganda for OHA's nation building effort."

And he goes on and on in a hysterical sense of happy discovery:

"So it's refreshing -- indeed a real pleasure -- to see this same law professor repeatedly acknowledging in this essay that the United States has lawful jurisdiction and sovereignty in Hawaii. This essay will be introduced as evidence that will be used against Professor Chang when he is hauled before the Supreme Court of Ka Lahui, or the Reinstated Lawful Hawaiian Government, on charges of treason"

And:

"And if Chang now tries to recant this recantment by claiming it is merely a joke or merely a hypothetical, then he will thereby lose all credibility for his future writings when readers will always wonder whether he really means what he seems to say or whether he is not really saying what he seems to be saying. Just how far will Professor Chang descend into the rabbit hole of Alice in Wonderland?"

So, he expects from me "excuses, resentment, retreat into a hypothetical, that I will be hauled before the Supreme Court of Ka Lahui and charged with treason, and that I will disappear into a rabbit hole. He is using debate and discussion to mock and disparage those who disagree with him--as if near-slander wins points.

I have three critiques of Mr. Conklin, as to his criticism 1) He doesn't read; 2) he makes any scholarship in this area into an ugly UFC fight, and 3) he does not support his work with references or reason.

1. He doesn't read:

Clearly, he does not know anything of my work. He critiques my work without reading it, and without addressing any of the evidence I present--and I have presented it publicly, something Mr. Conklin is loathe to do as to his own theories.

Apparently, he has not read my most recent publication: See Chang, Darkness over Hawaii: The Annexation Myth is the Greatest Obstacle to Progress 16 Asia-Pacific Journal of Law and Policy 70 (2015)
http://www.hawaii.edu/aplpj/current-issue/. [Ken Conklin's note January 2017: The correct permanent link for the "Darkness" essay is
http://blog.hawaii.edu/aplpj/files/2015/09/APLPJ_16_2_Chang.pdf ]

Nor has Mr. Conklin read any of my works that have been posted for more than a year, such as the appendix to my testimony to the Board of Regents: "The Testimony in Person of Williamson B.C. Chang, Professor of Law, April 16, 2015 Re: The Management of the Mauna Kea and the Mauna Kea Science Reserve; Professor of Law, William S. Richardson School of Law, University of Hawai'i at Manoa http://hdl.handle.net/10125/35797 and the second half of the evidence that the United States never acquired the Hawaiian Islands: "A Rope of Sand:" A Documentary History of the Failure of the United States to Annex the Hawaiian Islands Part II, http://hdl.handle.net/10125/35796.

Mr. Conklin would be far more credible if he could rebut the evidence presented in those articles. II. He doesn't understand what he is reading: My position is as follows--
1) The United States never acquired the Hawaiian Islands;
2) The United States asserts absolute and total control, by force, over the Hawaiian Islands;
3) Therefore the United States "occupies" Hawaii in some sense, belligerent or not, See Benevenisti "The International law of Occupation," (Oxford 2012)
4) The United States applies its laws and may apply its Constitution as a matter of occupation law,
5)Under occupation, the occupant United States has imposed its legal system over Hawaii; and that
6) If the United States followed the "Rule of Law" and applied its own laws and statutes of Congress and Constitution of the State of Hawaii [Article XV section 1], it is clear that by the admission of the United States, the Hawaiian Islands are not within the territorial boundaries of the State of Hawaii or the United States.
7) The people of Hawaii are by, the United States and its monopoly on the use of violence to impose its law, made subject to the laws and judicial institutions erected in Hawaii by the United States.
8) As an occupying power, the United States enforces its laws in Hawaii, a foreign country, in much the same manner that the United States enforces its laws in Guantanamo Bay. [Even though Guantanamo Bay is sovereign territory of the foreign nation of Cuba--Bush v. Boumediene;]
9) If the United States were to follow the rule of law, and apply its own laws of its own Congress:
a) namely, The Joint Resolution 30 Stat 750;
b) Section 2 of the Organic Act 31 Stat 14;
c) Sections 2 and 7(b) the Admission Act, 73 Stat 4,
10) The United States would be compelled to concede that; the Hawaiians Islands were not territory of the United States, and that;
11) The United States has never had de jure jurisdiction over Hawaii or ownership of the crown and government lands of the Hawaiian Islands;
12) Which makes my application of the United States Constitution to Hawaii, a law that proves that the United States never acquired the Hawaiian Islands, lacks jurisdiction and occupies Hawaii' quite logical;
13) They are applicable, with certain exceptions, under a state of "occupation,"
14) Moreover, they are the primary legal basis for proving illegal "occupation,"
15) And as in Boumediene, they must be applied - if they enhance, and do not degrade the rights of the occupied population.
16) The goal of Na'i Aupuni was to effect a "regime" change in Hawaii--which is contrary to the obligations of the occupant under international law;
17) It is thus appropriate for the Supreme Court to apply both the law of occupation as a part of international law, and the United States own rules as to occupation, as set forth by the United States Army, to nullify, or in this case, enjoin, until the matter is heard, the "regime change" consisting of an election to be followed by a convention,
18) For the purpose of creating a federally recognized Indian tribe of the people of Hawaii
19) Mr. Conklin's error is his assumption that since I argue the United States never acquired the Hawaiian Islands that the United States and State of Hawaii have absolutely no power or obligation to apply United States or State law to the Hawaiian Islands, even if such an application would partially, or completely, cure an unlawful and wrongful occupation.
20) He is wrong on two counts---under the law of occupation U.S. law applies, subject to exceptions and under its own law, the United States cannot prove it has de jure jurisdiction over Hawaii.
20. Mr. Conklin, your style, sarcasm, and unnecessary attacks render responding to you a necessary a matter of honor. You use personal ridicule to make your points. Such a style nullifies all possibilities of a scholarly, good faith exchange.

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** 12/18/15 Ken Conklin rebuttal to Chang

[To] Williamson Chang: First, I'm delighted to have you on my side as an opponent of the Na'i Aupuni process, and I believe that your argument is correct that the convening of the convention with all 196 candidates having been certified as delegates is contempt of court against the Supreme Court injunction to not certify winners in the election. As you hint but I will say explicitly: the Na'i Aupuni as an institution, along with its board of directors and all the candidate/delegates who attend the convention should be found guilty of contempt of court. One of the penalties imposed by the Court should be a further injunction -- a gag order prohibiting any work product of the convention (including a proposed constitution for a Hawaiian tribe) from being transmitted to any agency of the Hawaii or U.S. government or being used by any such agency as expressing the views of the Native Hawaiian people or the State of Hawaii in the event any group of Native Hawaiians files an application for federal acknowledgment with the Department of Interior, Bureau of Indian Affairs, or any government agency. Perhaps the Court should also impose a heavy fine on the Na'i Aupuni institution and perhaps also on each individual in its administrative hierarchy, and on any individual candidate/delegate who attends the convention, and on the Office of Hawaiian Affairs whose funds enabled the actions that were in contempt.

Second, too bad you can't take a joke, or sarcasm -- I'm often on the receiving end; and at your age it's about time for you to have that experience and learn to live with it. Kwitcherbellyachin. You have made yourself a public figure deserving of ridicule by loudly proclaiming your absurd theories about Hawaiian sovereignty in general and the Treaty of Annexation in particular. I'll bet you have never in your life had anyone step forward to disagree with your views on sovereignty. You're simply not accustomed to it, because all your UH students either love your opinions or fear the consequences to their grade, or crowd pressure, if they disagree. Perhaps the only way to settle this is to follow the example of Alexander Hamilton and Aaron Burr. We could meet at the Iolani Palace rockpile at dawn on January 17, pistols at 10 paces. But to forestall such a method of resolution, I'll respond to some of your bullet points.

Third: Yes, I read your recent essay in the Asia Pacific Law and Policy Journal a few days after it was published, and had numerous refreshing belly-laughs along the way. While studying Geometry I learned that an axiomatic-deductive system begins with postulates -- unproved assumptions -- and that if any or all of those axioms are contrary to fact then it is possible to use rigorous logic to prove theorems which are completely consistent with the axioms but which are as outlandishly false as the axioms from which they are derived. Your views on Hawaii's history, and especially the Treaty of Annexation, are a castle in the air -- an internally consistent edifice of absurdity whose internal logical correctness gives it the appearance of rationality despite its having no facts underneath to support it.

Fourth: Nearly the entire first half of your essay is devoted to a rehashing of the Congressional debate in 1897-1898 over the Treaty of Annexation. You present in detail the arguments of those who opposed the Treaty, but you do not provide equal time -- indeed, you provide hardly any time -- for the arguments of those who supported it unless perhaps setting up a straw man for your team to demolish. So you're doing what lawyers do -- zealously advocating your side of the story. But you are NOT doing what scholars and professors of law are supposed to do -- presenting both sides in a fair and balanced manner. You're a mouthpiece for the losers in this case, trying to re-litigate what was already decided, long after the judge has banged his gavel. That first half of your essay is of no interest except to historians of minutiae and of lost causes. THE SIMPLE FACT IS THAT MEMBERS OF THE SENATE AND HOUSE HEARD THE "GREAT DEBATE" OR READ IT IN THE RECORD OVER A PERIOD OF MANY MONTHS, AND AFTER CONSIDERING ALL THE FACTS, LAWS, AND LOGIC, THEY VOTED AGAINST YOUR VIEWS. INDEED, 2/3 OF THOSE WHO VOTED IN THE SENATE ON THE RESOLUTION TO APPROVE HAWAII'S OFFER TO BE ANNEXED VOTED IN FAVOR OF IT AND AGAINST YOUR VIEWS, AND AN EVEN LARGER PERCENTAGE IN THE HOUSE VOTED THE SAME WAY. Mr. Chang, as a lawyer you will surely understand that when a panel of judges decides a case, there's a majority opinion, possibly including separate but concurring opinions; and there's one or perhaps more dissenting opinion(s). But guess what -- the majority rules. The majority opinion is the law of the land. The losers might write brilliant dissents; but the fact is they are the losers. The case has been decided. "The Moving Finger writes; and, having writ, Moves on: nor all your Piety nor Wit Shall lure it back to cancel half a Line, Nor all your Tears wash out a Word of it." -- Omar Khayyam. You can argue 'til you're blue in the face that this case was wrongly decided. But it has indeed been decided.

Fifth: There really is a Treaty of Annexation. The process began when Hawaii offered the Treaty, and then after lengthy debate and a change in the Presidency, the U.S. accepted the Treaty. Despite minority opposition in both nations, the governments of both nations agreed there was a treaty, and took all the actions necessary to implement it. No nation on earth ever protested the Treaty or its consummation -- the Organic Act. Every nation which previously had treaty relations with the Kingdom of Hawaii sent a letter personally signed by its head of state formally recognizing the Republic as the rightful government of Hawaii; and after the Treaty was ratified by both sides, all those nations acquiesced in the Treaty provision whereby the previous treaties of the Kingdom and Republic were now to be managed or renegotiated by the U.S. Never let it be said the Treaty was done by stealth or subterfuge -- there was openly expressed opposition in Hawaii in the Ku'e petition signed (allegedly) by 21,269 people; and there was openly expressed opposition in the U.S. Congress as recounted by Mr. Chang, and in various newspapers in both nations. But those in favor won the debate. I understand that Mr. Chang does not like the way the U.S. ratified the Treaty of Annexation. But it's not up to him to decide how the U.S. must ratify a Treaty. The United Nations has no control over what method the U.S. uses to make its own internal decision whether to ratify a Treaty. The decision whether AND HOW to ratify a Treaty is always an internal decision for a nation itself to make -- that decision is one of the attributes of sovereignty. The U.S. did not pass an internal or municipal law which reached out and grabbed a different nation -- no, the U.S. passed an internal law by methods it had every right to use, and this law was its own decision to accept the Treaty which had been freely offered to it by Hawaii. Mr. Chang says the U.S. Senate rejected the Treaty of Annexation. That's a lie. No Treaty of Annexation was ever rejected by the U.S. Senate. The first time Hawaii offered a Treaty of Annexation was 1893 immediately following the revolution. President Harrison sent the Treaty to the Senate, which had no time to schedule hearings or debate until a few weeks later when Grover Cleveland became President and immediately withdrew the Treaty, thereby preventing any Senate action on it. The second time Hawaii offered a Treaty of Annexation was in 1897. It was highly controversial, and its sponsors kept recounting the commitments Senators had made to vote for it and came up 2 or 3 votes short; so they kept deciding to put off scheduling it for a floor vote in hopes of lining up a couple more votes. There was never any vote in the Senate until the resolution to approve it passed by vote of 42-21. There was only one time in all history when there was a Senate vote on a Treaty of Annexation between Hawaii and the U.S., and the vote was 42-21 to approve it. It was never defeated. You can find a very detailed description of the political process in the Senate and House, and the counting of votes, and the fact that the anti-Annexation petition made zero difference in the whip count, in the book by William M. Morgan Ph.D., "PACIFIC GIBRALTAR: U.S. - JAPANESE RIVALRY OVER THE ANNEXATION OF HAWAII, 1885-1898" See my detailed summary and review at
http://tinyurl.com/8y2s6o5

Sixth: Much of the second half of Mr. Chang's essay is a tedious discussion of exactly what are the boundaries of the State of Hawaii. Mr. Chang seems happy enough that the Kingdom defined its domain simply by listing the names of the islands; yet he won't allow the Republic of Hawaii, or the Territory, or the State, to do the same thing. Like the lawyer he is, he goes into all sorts of technicalities purporting to show that the State of Hawaii does not exist because there is no precise and detailed list of all its contents or boundaries. But of course the existence of a political entity does not depend on being able to define every detail of where it is. That's why we have an International Court of Arbitration at the Hague, where nations bring disputes over boundaries and agree to let arbitrators decide. The nations [or counties or continents] exist, even if their boundaries are not precisely defined.

Perhaps I should end with the famous statement made by Supreme Court Justice Potter Stewart who needed to make a ruling on whether a particular movie was pornographic. He said "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ['hard-core pornography'], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." Well, I'm not sure whether I have adequately explained why I describe Mr. Chang's theory about the Treaty of Annexation to be ridiculous, and in particular his recent essay in the Asia Pacific Law and Policy Journal. But, like Justice Stewart, I recognize absurdity when I see it.


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CHANG-CONKLIN DIALOG #2, JANUARY 8-16 OF 2017, THE GARDEN ISLAND [ISLAND OF KAUA'I DAILY NEWSPAPER] -- FULL TEXT

http://thegardenisland.com/news/opinion/mailbag/letter-for-sunday-jan/article_0902eb83-3b9a-579d-afe5-1fe525686b41.html
The Garden Island [Kaua'i], Sunday, January 8, 2017

Aloha, Happy New Year!

I begin this letter, for the record and contrary to TGI commentators, that I am full of hate. I admit I am very on-point with discussions, but otherwise not in my vocabulary. In this case, found it necessary to opine front page inaccuracies submitting our people's thoughts to Americas, specifically the Kauai Planning Director Dahilig, county, state and federal, including the military, the political, PDs, courts, judges, as well as all related personnel.

I am prepared to offer a reward of $50K, if you can show me an annexation document. Simple enough? We were not taught truth out from history textbooks, even in Catholic schools, but we the people of Hawaii-nei have researched, shared with one another, calculating the ruse. We know the truth, while others stand to lose their positioning, homeless mode get a taste of our reality or simply ostrich heads in the sand.

We stand with truth and integrity. A state and territory before annexation cannot occur for several reasons. Trump and the birthers were on the right track, they didn't find the smoking gun. Obama was born in Hawaii-nei and like the rest of us birth certificate is fake. Annexation does not occur by "Joint Resolution," alone.

Deb Kekaualua, Anahola Homesteads

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http://thegardenisland.com/lifestyles/opinion/yes-there-is-a-treaty-of-annexation/article_2e914ce6-b49b-5697-9db9-78365f165cbc.html
The Garden Island [Kaua'i], January 10, 2017, Other Voices [public commentary]

Yes, there is a Treaty of Annexation

Kenneth R. Conklin, Ph.D.

U.S. President Grover Cleveland, a Democrat, was a friend of Lili'uokalani and refused to allow a Treaty of Annexation. In December 1893 he staged warship exercises in Hawaii to try to intimidate the Hawaiian revolutionary government to step down and restore the ex-queen to the throne. So the Hawaii government waited four years until Cleveland's successor McKinley, a Republican, became president in 1897.

In fall 1894 the Republic of Hawaii received formal letters of diplomatic recognition as the rightful successor government to the Kingdom. Those letters were personally signed by emperors, kings, queens, and presidents of at least 19 foreign nations on four continents in 11 languages. Under international law, that gave the Republic the right to speak on behalf of the nation of Hawaii, and to offer treaties. Lili'uokalani also signed a formal letter of abdication and an oath of loyalty to the Republic. All those documents can be seen in the state archives.

In 1897 the Republic of Hawaii offered a Treaty of Annexation to the United States. In the U.S., the treaty was highly controversial. Racist Southern senators opposed it because most of Hawaii's people were not Caucasian, just as racist Hawaiians today oppose it because they want Hawaii to be an independent nation with racial supremacy for ethnic Hawaiians under a theory of "indigenous rights." Southern senators also opposed it in order to protect their sugar industry against Hawaii sugar.

In 1898 the U.S. accepted the Hawaiian offer to be annexed. In a joint resolution the Senate approved the treaty by vote of 42-21; the House approved it 209-91; President McKinley signed it. The same method of approving a Treaty of Annexation by means of a joint resolution had been established as a precedent 53 years earlier when the Republic of Texas offered a treaty in 1845.

Let me emphasize that the U.S. did not reach out and grab Hawaii against its will. The internationally recognized government of Hawaii first offered the treaty, which the U.S. later accepted. I also emphasize that under international law it is up to the U.S. alone, as an exercise of its sovereignty, to choose what method the U.S. will use to ratify a treaty -- no outsiders have any right to nullify a treaty merely because they don't like the method chosen by the U.S. to ratify it -- not the United Nations, not the World Court, and certainly not Hawaiian activists.

For those who demand "Show me the treaty!" I have put it on the internet. Courts have repeatedly upheld the treaty. For example, in 1909 when ex-queen Lili'uokalani sued the U.S. to get money for "her" crown lands, the court ruling provided full text of the Treaty of Annexation as evidence that the court had jurisdiction to decide the case (along with evidence that under Kingdom law Liliuokalani had never owned the crown lands as personal property). See
http://tinyurl.com/56czl

Here's my webpage "Treaty of Annexation between the Republic of Hawaii and the United States of America (1898). Full text of the treaty, and of the resolutions whereby the Republic of Hawaii legislature and the U.S. Congress ratified it. The politics surrounding the treaty, then and now" at
http://tinyurl.com/2748fgg

Kenneth R. Conklin, Ph.D., is a resident of Kaneohe.

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[online comment]
DebraKekaualua posted at 12:53 pm on Tue, Jan 10, 2017.
DebraKekaualuaPosts:
Show me this Congressionally stamped document and 50K is yours. My confidence soars and your reality is bass-ackwards. Due Diligence research by pink people is the means by which you can be saved from the pending 90-exit strategy of De-occupation militaropoliticaltourista.

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http://thegardenisland.com/news/opinion/guest/there-is-no-treaty-annexing-the-hawaiian-islands/article_2e800a96-8d0c-5d81-91f4-5c739fa47e44.html
The Garden Island, January 12, 2017, Guest Viewpoint

There is no treaty annexing the Hawaiian Islands

by Williamson Chang

Dr. Kenneth Conklin, in responding to a letter from Deb Kekaualua on Sunday, Jan, 8, recently penned a letter in the Other Voices column of the The Garden Island that, contrary to all evidence, and contrary to the position of the United States, that there is a valid treaty of annexation between the United States and the Nation of Hawaii by which the United States acquired the sovereignty and public lands of Hawaii.

Dr. Conklin is wrong. His persistence in pushing his view does the world and the people of the United States a deep disservice. The United States itself does not claim Hawaii by means of a treaty. All academic scholars who have written on annexation agree that there is no treaty. Dr. Conklin alleges that there are court decisions recognizing a treaty. He is incorrect.

Finally, he asserts that regardless of whether there was a treaty that meets the definition under international law, or the laws of the United States, there was a treaty "in essence," in that the Republic of Hawaii, under President Dole agreed to a "treaty" because the Republic of Hawaii and President Dole agreed to the terms of the Joint Resolution of 1898, providing for the annexation of the Hawaiian Islands. (Note the title is "providing for the annexing of the Hawaiian Islands" and not the "annexing of the Hawaiian Islands.")

The historical record undermines Dr. Conklin's position. The Republic of Hawaii and President Dole did not accept the joint resolution as some form of ratification of the Treaty of 1897. The Republic of Hawaii disputed there was a treaty to the very end. The government of the Republic of Hawaii collapsed under the uncertainty as to which law applied in Hawaii as the United States insisted the Joint Resolution had acquired Hawaii. The United States did indeed, "reach out and grab Hawaii against its will -- as to the will of the nationals of the Kingdom of Hawaii, but more important here, against the will of the Dole Government which constituted the Republic of Hawaii.

First, all professional and academic historians agree that the Treaty of 1897 of June 16, 1897 was never ratified by the United States Senate and therefore never became a treaty. Article VII of that treaty required that the United States ratify the draft treaty under the terms provided by Article II of the United States Constitution -- by a two-thirds majority of the senators present. It is fact that the United States never fulfilled the requirements of Article II and never ratified the treaty.

The Treaty never even came up for a vote in the United States Senate. Professor William Adam Russ, Jr., in his two-part work on the overthrow and annexation, in the second volume, William Adam Russ, Jr., The Hawaiian Republic (1894-98) (1962 Susquehanna Press) devotes an entire chapter to the failure of the treaty -- see Chapter Five of his book "Failure of the treaty of 1897" consisting of some 50 pages. One cannot discount Professor Russ biased in favor of Hawaiian sovereignty as he concludes that the joint resolution of 1898 (But not as a part of a treaty) did annex Hawaii. According to my work, he is wrong on the second point, the joint resolution did not and could not acquire or annex Hawaii, but at least one can say that those with the same eventual view of Dr. Conklin do not agree with Dr. Conklin's conclusion that there was a treaty.

Historians like William Adam Russ, Jr., and Thomas Osborne do accept the U.S. position that Hawaii was acquired by a joint resolution, but the point here is no one accepts Dr. Conklin's position that Hawaii was acquired by a treaty. See Thomas J. Osborne, Annexation Hawaii (1998).

The official reports of the United States do not claim a valid treaty of annexation: See Treaties and Other International Agreements of the United States of America, 1776-1949, compiled under the direction of Charles I. Bevans, Former Assistant Legal Advisor Department of State. Volume 13, General Index. He lists only the following treaties between the Nation of Hawaii and the United States: Commerce (1826) Commercial Reciprocity (1875) Friendship, Commerce and Navigation (1849) and Rights of Neutrals at Sea (1855).

Even the United States, on the website of the Official Historian of the United States, the United States Department of State, see https://history.state.gov/milestones/1866-1898/hawaii. "Notice to readers: This article has been removed pending review to ensure it meets our standards for accuracy and clarity. The revised article will be posted as soon as it is ready. In the meantime, we apologize for any inconvenience, and we thank you for your patience."

The United States does not claim that the there is a treaty of annexation of any kind. Rather, it relies on the position that the Joint Resolution annexed Hawaii. That is a position, of course, that I have devoted my research to disproving.

Judicial decisions based on a treaty of annexation are simply incorrect or poorly argued. In the desperation to find a legal basis for the United States claim to Hawaii, courts, at times, have resorted to this erroneous logic. The false nature of such a theory can be seen in its origin. Such a view started with Justice Harlan's dissent in Hawaii v. Mankichi, 190 U.S. 197 where he seeks desperately to find a way to apply the Bill of Rights to save Mr. Mankichi, from conviction in Hawaii, for a crime committed in 1899.

Justice Harlan carefully reviews the Joint Resolution and the Treaty of Annexation of 1897. He recognizes that both are different documents. He does not state that the Treaty of 1897 was ratified, but in his desire to apply U.S. law to protect the Japanese contract laborer, Mankichi, he reaches a conclusion, albeit erroneous, that the Joint Resolution "fulfilled" the Treaty of Annexation. He was apparently unaware of Article VII of the Treaty of Annexation which required that the United States must ratify the Treaty, if it was to become effective, by the official procedures set forth in the United States Constitution. Article VII of the draft Treaty of 1897 states clearly:

The most important point in rebuttal to Dr. Conklin is that the Dole Government in 1898 did not consent to annexation. They denied that the joint resolution had any force and effect and that the only means of annexation was by the treaty of 1897. To the end, the Dole Government defied annexation, as indicated by the letter of the special emissary from the Republic of Hawaii to the United States, A.S. Hartwell, who wrote in a critical letter, that the only means of acquisition was by the treaty--and that such had failed because the United States had failed to ratify the treaty by the terms agreed to in Article VII: Hartwell asserted that absent proper "ratification" there was no treaty.

"Upon the enactment of the Newlands resolution in the place of a ratified treaty, and its full equivalent, I respectfully submit that something was required in the nature of a ratification whereby official notice could be given to Hawaii that the United States had agreed upon annexation. The inchoate treaty provided in its seventh article for an exchange of ratifications "at Washington as soon as possible," Until such exchange, or something equivalent to it, there could be no cession accomplished by mutual agreement."

See Letter of Alfred S. Hartwell, Special Agent of the Government of Hawaii in Washington D.C. to President McKinley, October 25, 1899. (From the Manuscript Collection the Papers of A.S. Hartwell, Archives of State of Hawaii)

There is no disagreement that there was no Treaty of Annexation. The discourse now is whether or not the United States can annex Hawaii by a mere joint resolution. I have written about that extensively. A good place to start is with my article: Williamson Chang, "Darkness over Hawaii: The Annexation Myth is the Greatest Obstacle to Progress," see Williamson Chang, "Darkness over Hawaii: The Annexation Myth Greatest Obstacle to Progress 16 Asian Pacific Law and Policy Journal 70 (2016)
http://blog.hawaii.edu/aplpj/files/2015/09/APLPJ_16_2_Chang.pdf

The only real question is whether a joint resolution could annex Hawaii -- not whether there was a treaty. Nobody takes the treaty claim seriously.

Williamson Chang, Professor of Law, University of Hawaii at Manoa, William S. Richardson School of Law.

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[online comment]
DebraKekaualua posted at 9:44 am on Thu, Jan 12, 2017.
I told you so, i speak truth and have integrity. Why would we fabricate a false positive!!! we have never been a u.s. federal domestic state AND never will be. mAhalo for the precise back up to my mana'o

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[online comment]
kuroiwaj posted at 11:39 am on Thu, Jan 12, 2017.
Debra, don't jump to conclusion. There are more coming to challenge your belief and statements. Mr. Chang, as suggested to him some time ago, must file a claim to the U.S. Supreme Court that they have erred in recognizing the Treaty of Annexation with the Newlands Joint Resolution to settle his belief and position. I believe he does not, because he knows the U.S. Supreme Court would decide against him.

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[online comment]
PeteAntonson posted at 2:40 pm on Thu, Jan 12, 2017.
So let's take the elevator down from the Ivory Tower and what do we hear? A booming, deafening "SO WHAT!" I mean a definitive "SO WHAT!"
There's a technical problem with annexation that may someday mean something?
That's a ten minute voice vote in the US Congress!
Sovereignty activists, after decades of this, can't even get more than 30 people interested on Kauai! Do you have any idea what people in Iowa, Indiana, Georgia, etc., etc., think about sovereignty? It's number 537 on the list of things they care about!
If any of them cared enough, or even noticed enough, they would come down on top of "sovereignty" like a ton of bricks!
So take the elevator back up now and go back to pretending this matters!

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[online comment] DebraKekaualua posted at 3:24 pm on Thu, Jan 12, 2017.
so i get to keep my 50k...youre the jumper, i know facts. supreme court has nothing to do with it, heller america is a figment of your imagination and your time is overstayed. Thankfully, your light has been off, or is a better word brainwashed americanized. Some of us, more than you realize, are NOT

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http://thegardenisland.com/news/opinion/guest/treaty-of-annexation-is-long-established-law/article_67857040-b058-51e6-ba74-27ffbf6f123f.html
The Garden Island, January 16, 2017

Treaty of Annexation is long-established law

Kenneth R. Conklin, Ph.D

Law Professor Williamson Chang, in a Guest Viewpoint published in The Garden Island on Jan. 12, claimed there is no Treaty of Annexation between Hawaii and the United States. He did what lawyers often do when they are on the losing side, creating convoluted arguments and quoting from an obscure letter.

As stated in my essay of Jan. 10, there are many occasions when courts have cited the Treaty of Annexation as established law when making rulings on important cases. Dear readers, will you accept the authority of a lawyer on the fringe who has spent decades championing the diehard deadenders of the Hawaiian Kingdom, trying to claim that Hawaii remains an independent nation? Or will you accept the rulings of actual judges in high-ranking courts who had no trouble citing the Treaty of Annexation as authoritative?

Perhaps the earliest and most important lawsuit where a high- ranking judge cited the Treaty of Annexation as authoritative was Lili‘uokalani v. United States, 45 Ct. Cl. 418 (1910).

Ex-queen Lili‘uokalani had filed a lawsuit against the United States in 1909 claiming that the U.S. owed her money for taking "her" crown lands when Hawaii ceded the crown and government lands to the U.S. as part of the annexation process.

But in 1910 the court ruled that under a Hawaiian law passed by the Kingdom legislature and signed by the king, the crown lands were owned by the government, not the monarch as personal property; and that the government of Hawaii had properly ceded those lands to the U.S.

In its official decision the court cited the Treaty of Annexation and quoted its full text, both as evidence that the court had jurisdiction to decide the case and as evidence that the lands had been ceded by the Hawaiian government under terms of the treaty. You can read full text of Lili‘uokalani's complaint, and the court's ruling including the treaty, at
http://tinyurl.com/56czl

By the way, Lili‘uokalani herself, in her lawsuit, never claimed that the treaty was invalid, nor that annexation had not occurred, nor that the ceded lands belonged to ethnic Hawaiians as a racial group -- those are claims invented by modern-day history-twisters which Lili‘uokalani herself never asserted in this, her most important legal case.

Professor Chang quotes a small part of a single obscure letter to claim that the Republic of Hawaii was annexed against its will. But the facts contradict Chang's interpretation of events. The Republic had first offered annexation and was thrilled when the U.S. later accepted it. Sanford B. Dole, president of the Republic of Hawaii, was delighted to accept U.S. President McKinley's appointment of him to become the first governor of the Territory of Hawaii, thus providing a seamless transition; and later Dole accepted appointment as a judge on the U.S. District Court for the Territory.

Neither Dole nor any leader of the Republic protested that they were dragged into annexation kicking and screaming. Professor Chang loses credibility by trying to mislead readers when he ends by saying "Nobody takes the treaty claim seriously."


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