A statue of King Kamehameha I in O’ahu, Honolulu, Hawai’i. Photographed May 22, 2010. (Flickr / Wally Gobetz)
I learned about the continuing existence of the Hawaiian Kingdom in a roundabout way through an interest in nuclear disarmament and the protests against U.S. military bases in Okinawa.
Hawai’i’s history and its unresolved status as an occupied nation reveal a deeply ironic contradiction in America’s imperial project. The numerous American bases located around the Pacific Rim were permitted through treaties and Status of Forces agreements with foreign countries, but the hub of all these outposts is the Pacific Command in Hawai’i—the one place where the American presence has no basis in international law because the islands were unilaterally annexed and there has never been a proper treaty that would allow the foreign military presence.
Hawai’i’s problematic status forces Americans to face some fundamental questions about their government’s attitude toward international law. What will be the consequences of having so often ignored international law from an advantageous position of dominant power? This question will become harder to ignore as America’s imperial project, with thousands of military installations on foreign territory, becomes impossible to sustain in coming decades.
For the last twenty years, Professor Sai’s work has spearheaded a new awareness of such questions by bringing to light long-forgotten aspects of Hawaiian history. His work has been controversial among the native Hawaiian community, which is presently being tempted into the trap of choosing the apparent benefits that come with indigenous state-within-a–state tribal status.
Professor Sai’s work has often been ignored, minimized or misrepresented by the larger society in Hawaii and the United States, but nonetheless it is taking root as a growing number of Hawaiians reject the path toward indigeneity. He is often quoted in media articles on Hawaiian sovereignty, but the coverage is usually brief and superficial (see an example here). The interview that follows allows him to more fully explain his work and the motivations that were behind the formation of the provisional government.
This transcript has been slightly edited for clarity as a text be read. A longer version of this interview, within a longer article, was published in 2016 by the Center for Glocal Studies, Seijo University, Tokyo.
Interview with Keanu Sai
Professor Keanu Sai, interior minister of the acting government of the Kingdom of Hawai’i, recorded August 24, 2015 at Kane’ohe, Hawai’i by Dennis Riches
Dennis Riches: I saw a lot of parallels between Hawai’i and the Meiji Era (1868-1912) in Japan. It seemed like the monarchy was trying in the same way to modernize quickly, catch up to the West, get recognition and avoid being dominated by one of the Western powers.
Professor Keanu Sai: Actually, it was the Meiji Emperor who was trying to follow the lead of the Hawaiian Kingdom. King Kalakaua actually visited the Emperor and there is clear evidence that he asked King Kalakaua to recognize Japan’s full sovereignty and set a precedent for the Western powers. He did this because the European powers were not recognizing Japan’s full sovereignty. So the Emperor was actually asking for King Kalakaua’s assistance in putting Japan within that so-called “family of nations” which they were being kept out of.
Dr. Keanu Sai lectures on “Onipaʻa: the Legal Status of Hawaiʻi,” at the University of Hawaii, West Oahu, on May 22, 2010. (Flickr / University of Hawaii – West Oahu)
DR: As a Canadian, my interest was caught by the war crimes complaint you filed in Canada back in May [2015], related to the construction of the Thirty Meter Telescope (TMT). What’s happened since then?
KS: Yeah, we actually got a reply from the RCMP [Royal Canadian Mounted Police] war crimes unit. It’s actually called the “sensitive and international investigations” division. They acknowledged what is going on here, but they were saying that they don’t have jurisdiction over this particular case pursuant to Section 8 of their war crimes statute. Section 8 says that a perpetrator must be a Canadian citizen, or employed by a Canadian citizen or by Canada in a civilian or military capacity. The victim must be a Canadian citizen or a foreign citizen who is allied with Canada in an armed conflict.
The reporting of war crimes for what took place on Mauna Kea—the destruction of property and unlawful confinement, unlawful arrest—the victim was Kaho’okahi Kanuha. He is not Canadian. He’s Hawaiian, so the attorney responded back to the RCMP last week that it does meet the requirement of Section 8 because the perpetrator that has orchestrated the arrests and the destruction of property is employed by a Canadian which is a partner of the TMT in a civilian capacity. That’s the response that is asking the RCMP to now proceed with pressing charges. So it met the requirement of the statute.
Before we got to that point, we had to get the RCMP to address the fact that Hawai’i is not part of the United States. They stated that they were in consultation with the Canadian Department of Justice’s war crimes program. They read over the two binders I provided to them. These showed from an academic standpoint the evidence that answers three questions:
- Did Hawai’i exist as an independent state and a subject of international law? Yes, this was established in 1843.
- Does the Hawaiian Kingdom continue to exist as a state under international law, despite its government being illegally overthrown by the United States in 1893? Yes, because you separate sovereignty from government. The government was removed but sovereignty was never surrendered.
- Are war crimes being committed in the Hawaiian Islands? Yes.
DR: This seems like it should be a shocking revelation, yet there has been no media coverage.
KS: The private media and the political class will not face this issue because the implications are enormous for businesses and property owners. They will not face them until they are forced to. In any case, it is better not to politicize the information. It is better to institutionalize and normalize it. That’s why we’re focused on education.
In the 1980s, the ethnic studies programs taught that we were colonized. We were never colonized. We were occupied. Colonization implies we were never a country, and on that basis you have to talk about self-determination, making a nation for the first time, and then you have an “independence movement.”
The colonization view of Hawaiian history contributed to the problem, and there is a conflict there among scholars and activists. An anthropologist would not call the German occupation of France in WWII “de-nationalization.” They would never say France lost its independence when Germany occupied it. The theoretical framework and presumptions are important. If you think Hawai’i is part of the United States, then you will naturally see Hawaiians as Native Americans. In my work I took a scientific approach. It’s a matter of testing the information for falsifiability. What people think of it doesn’t matter.
DR: You are the acting interior minister of the provisional government of the Hawaiian Kingdom. For most people, this might have to be explained. How does one claim to be a provisional government? Were there competing claims?
KS: There were no competing claims. I’m operating within a structure. I’m not operating from a post-modern view. This is very contextualized. When I realized that the Hawaiian Kingdom was a country, that a state still exists, but its apparatus, its government was illegally overthrown, I needed to separate first the physical manifestation, which is government, and second, the subject of international law.
Sovereignty and independence are synonymous. Independence is a political term which means sovereign authority exists over your territory to the exclusion of other sovereignties that exist over their territories, each being independent of each other. That’s an independent and sovereign state. If the government was overthrown but the state still exists, did the apparatus of the government cease to exist? That’s called the legal order. Now that legal order is the laws that applied at that particular time before the overthrow took place. That’s what our provisional government is based on, but it’s not just me. There are a lot of people behind this.
I looked at it from a very pragmatic standpoint. I needed to draw from other examples around the world that look like us. One example is Belgium in WWII. The king was captured and Belgium was occupied. Its citizens fled, and in Great Britain they organized a government in exile. Those governments were provisional or what is called “acting governments,” so they could provisionally speak on behalf of that state that had been occupied.
We took the same concept. Instead of creating a government in exile, we established a government here under the doctrine of necessity. The doctrine of necessity also applied to how other nationals created acting governments in exile. We had to find a way to assume the chain of command within the Hawaiian infrastructure, and that comes under the Hawaiian constitution. That’s the organic law and how that applies to people in their private capacity. We developed a plan to follow Hawaiian Kingdom law, so we created a company called the Hawaiian Kingdom Trust Company which is a general partnership created under the 1880 co-partnership statute which required us to register it within the Bureau of Conveyances.
Photo of Queen Liliuokalani, last monarch of Hawai’i, taken in 1891 at the beginning of her reign at Iolani Palace. (Wikimedia Commons / University of Southern California Libraries)
The government of the Hawaiian Kingdom, the physical body, to put it in a simple way, was carjacked. They took the queen and her cabinet, replaced them with Sanford Dole and his cabinet, and then with military backing forced everyone to sign oaths of allegiance. All they did was change the driver. The car is still there. That car still exists today except that it’s painted red, white and blue. Everything within the structure, the positions of the governor, the mayors, the courts—they all come from 1845. That’s not an American creation. We utilized the infrastructure. We are in our house, and we are using the rules that apply to the time before it was taken over.
There is a way you can assume the chain of command through what is called the regency. We assume the roles up to the ministry of the interior, who sits in a cabinet with three other ministers: the attorney general, finance and foreign affairs. This cabinet, under Hawaiian law, can serve as a counsellor regency in the absence of a monarch. And we have a history of that.
Other sovereignty groups have been operating since the 1980s on the premise that we are part of the United States and they want to break away, and they all come up with their own views. No one has ever taken the position that the kingdom still exists and we’re under occupation. As time has progressed and people are becoming educated, some of these sovereignty groups have begun to borrow terminology to make it look as if they are no different from the acting government. That’s not the case. They are really just making stuff up.
For we who did this we have to be very careful because there are hazards when private people, under the doctrine of necessity, assume the role of government, which is allowed under English common law—we actually followed the precedents of the Commonwealth Courts.
I went to The Netherlands, to the permanent court of arbitration. They looked into how we became the acting government. This was a case between Lance Larsen, a Hawaiian subject, who was attempting to hold the acting government accountable for not protecting him when he was put in prison. We were the defendants in this case, and it went to the Permanent Court of Arbitration in The Netherlands for international arbitration.
The court registry was taken aback because they thought Hawai’i was part of the United States, but they couldn’t deny the Hawaiian Kingdom’s existence as an independent state because the Hawaiian Kingdom had a treaty with The Netherlands where the court is located. So if it wasn’t an independent state, where is the evidence that that state was extinguished? All they have is American laws passed by Congress which don’t affect that status because it’s not possible for one country to unilaterally extinguish the sovereignty of another, so they had to accept that the Hawaiian Kingdom exists.
The next step was to ask, “Who is Lance Larsen as a Hawaiian subject?” He had to show his birth certificate and those of his ancestors that go back to the 19th century. As the acting government we had to explain how we became the acting government and lay out the case for necessity. They accepted it. That’s why the case was heard. So it’s not a political process. Either you did it right or you didn’t do it at all. I’m not trying to argue why we should be the acting government. We are the acting government and that’s all there is to it.
DR: I imagine that if you asked Americans about this they would be shocked and think, “What are you aiming for? What sort of policies are you going to implement?”
But you seem to be focused on simply the necessity of following international law to get the Hawaiian government re-activated. Policies will be decided after that by the government in place.
KS: Exactly. I don’t think people in the United States are in a position to dictate anything because this is over 120 years of occupation. When you look at it from international law and the non-compliance that is ongoing, then you get into the issue of war crimes.
Look at the issue of de-nationalization—the fact that in 1906 the Americans started a de-nationalization program, and we have evidence of it. That calls for reparations and restitution. The fact that Hawaiians were drafted to fight American wars and died. This also calls for reparations and restitution. This is not a political process where we have to ask people, “Well, what do you think?” This is a reality check.
This is like a child who thought he was adopted but finds out he was kidnapped. There are no adoption papers, so let’s take a look at everything in Hawai’i. Everything that we think exists doesn’t exist. Nobody owns land. There is no legal title. Foreigners who have come through Hawai’i, both Americans and other foreigners, have paid federal and state taxes. That taxation is all illegal. It’s called pillaging. That means that they can get that money back because the State of Hawaii cannot claim to be a government. In this way, you start to remove the basis of power. America is not going to fix it.
The Hawai’ian flag flies over the Iolani Palace, traditional seat of the government of the Kingdom of Hawai’i. December 23, 2005. (Wikimedia Commons / Jiang)
DR: And Hawai’i is not the only place where America has created this kind of problem. Pure political power has allowed them to do whatever they want in many places in the world.
KS: Oh, yeah. Manifest Destiny. Actually, the biggest difference between Hawai’i and the rest of the world that America has been involved with is that America has worked with real governments elsewhere. They may have been authoritarian, they may have been abusive, but they were governments. Here in Hawai’i that’s not the case. There is nothing like it anywhere else.
So it’s not “What do you think, should we pursue restoration?” Americans are part of this problem now. That’s why it’s so important that the terminology and historical facts are researched. We strive to be as accurate as we can be.
DR: I can imagine the denial would be pretty deep, though. No matter how much you explain this to people who live here, even when they admit the truth of the facts you present, they are going to say, “Yeah, but why do you want to make this trouble now? Hawai’i is at peace. Most people are doing OK.”
KS: That’s a good point because people will always take the easy road. If there is fear, close your eyes. My approach in all of this is to look at it as a vested interest. I can speak to people who seek an answer if they have a vested interest in getting that answer. Before talking about Hawai’i, how about talking about the history of Hawai’i?
What I like to rely on is what American officials said in 1893 and 1898. Americans have nothing to say today because they are now successors of these authorities who have done illegal things. This is why I don’t allow myself to be placed in a position of argument as opposed to presenting evidence that others are free to try to falsify. The only way that we can get through this de-nationalization and brainwashing is to speak to facts that can be tested for falsifiability.
Let’s go back to August 12, 1898, the time of the Spanish-American War, when Hawai’i became a U.S. territory. That’s when the laws of occupation began to be applied. The question is: What were the laws of occupation on August 12, 1898? Then we get into customary international law which was codified one year later in 1899 in the Hague Convention, then later in 1907, and later in the 1949 Geneva Conventions. When we keep it to a historical analysis that applies international law as the interpreter, it prevents the politics from clouding the discussion.
We’re definitely going to get into power struggles, moves to try to prevent this information from coming out. That’s normal, but I’m not going to put myself in a position where I have to argue with someone that this is similar to another situation. If I do that, it’s merely to provide comparative analysis. And that’s why we use the Baltic states which had their sovereignty restored after the USSR ceased to exist.
DR: As students learn about all this and start to feel pride in their culture, do they to some extent idealize the past or idealize what the future could be? Hawai’i was a hierarchical society, there was social inequality, there were social classes and warfare.
KS: But that evolved when Hawai’i became constitutional in the 19th century. Yeah, Hawai’i was very hierarchical under the ancient system, but that changed once it became a constitutional system in 1839 with a declaration of rights. By 1864, it had adopted the separation of powers as the cornerstone of Hawaiian constitutional law. There were always checks and balances. Actually, Hawai’i has a very close tie to Great Britain. English common law actually applies here, so in a sense we are British. In 1792, under Kamehameha I we joined the British Commonwealth as a protectorate. That’s why we have the Union Jack on our flag.
DR: Yes, well the question I was trying to ask is whether people realize how much Hawai’i was westernizing in the 19th century. They might be thinking that the past was the time of the Noble Savage and everything was idyllic.
KS: That’s what we counter. The narrative that has been promoted through de-nationalization is that we were inept, we were savages and we needed to be civilized by the missionaries. When the missionaries first came to Hawai’i, they were not in control. They were never in control and in fact they were watched by the chiefs. What’s interesting is most of those American missionaries became Hawaiian subjects and gave up their American citizenship. They were naturalized. They weren’t Americanizing the Hawaiians. They participated in the development of the legal system and Hawai’i’s transition to a constitutional monarchy.
What I am careful about is to make it clear that this is not a “native push” as it’s been portrayed to date because that’s borrowing from the anthropologists’ view that we are indigenous. Once you start looking at Hawai’i as a country, certain terms change their meaning. Hawaiian becomes a nationality, not an ethnicity. But the United States created Hawaiian ethnicity in the Hawaiian names act of 1921, and they set the stage for us to be viewed as Native Americans. But Hawaiian is a nationality, not an ethnicity, even under Hawaiian law. In Hawai’i you can be Hawaiian and still be Black, Manchurian, Scottish, Welsh. I don’t play the race card. This is not a matter of ethnic strife because we didn’t have that history. We didn’t have that until we got occupied by the United States. We have to deal with the fact that racism was brought here.
Sun Yat Sen was educated here in the 1870-80s at the ‘Iolani School, and then he went to Punahou. He said he learned democracy in Hawai’i, and that’s what he took to China. He didn’t learn it in America. He couldn’t have because of the Chinese Exclusion Act [1882]. How could he have learned democracy from that? But because they think this is America, they think Sun Yat Sen learned about democracy in America. The ‘Iolani School was created by Kamehameha IV and Queen Emma and it was an English immersion school. Hawaiian was spoken most everywhere else. Sun Yat Sen wrote an essay in English voted the best essay by ‘Iolani, and King Kalakaua gave him the award.
It’s going to take time. Everyone will learn at their own speed, but when you educate people they have tools to work with. Within their particular profession, as an attorney, as a banker, as military, they become more proficient and things begin to move faster. When we filed a war crimes complaint with the Canadian government, that wasn’t a political idea. It was just the natural conclusion given the situation.
I met with the Consular General of Japan two weeks ago. I delivered a complaint there as well, because of the Japanese component of the TMT, for committing a crime on Mauna Kea. I was asked by the Consular General if I was against the building of telescopes. I said no. We just want it to be built legally. Right now, they’ve gone through a process that is illegal. They have destroyed property, and this has led to unlawful confinement and unfair trial. These are war crimes that fall under Japanese war crimes statutes.
Japan is a monist state, which means international law is superior. You don’t have to create legislation to implement international law. Japan doesn’t operate on a dualist system like Canada and America. Then we’re talking about Geneva Conventions. I told him that when he sees this he will also see that the consulate is also illegal. It was created under the Japan-US treaty. It doesn’t apply. This should be under the Hawai’i-Japan treaty, Article 3, that allows the creation of consulates. When you start to show others how they have vested interests in solving this problem, they start to perk up.
The U.S. Pacific Fleet Marching Band participates in a parade through downtown Waikiki honoring Japanese-American veterans of World War II . December 18, 2011. (Wikimedia Commons / U.S. Navy / Mass Communication Specialist 2nd Class Daniel Barker)
DR: But it’s always a huge political issue for Japan to go against America on anything.
KS: That’s why my approach is to say that America has nothing to do with it. If you worry about America, you’re only digging yourself deeper in war crimes. Inaction doesn’t remove that problem. In fact, now I can say you’ve been fully apprised of the situation, so next we’re talking about criminal intent. You can use the justification of fear, but that defense will have to be sold to the jury. It’s still a war crime.
DR: Would there be any way to take on something bigger like, for example, the storage of nuclear weapons on Oahu?
KS: That’s all part of the destruction of property.
DR: How would you proceed with a case on such an issue that challenges the right to place military bases here?
KS: International Criminal Court. The United States didn’t sign the ICC Statute, the Rome Statute, so they don’t allow jurisdiction of the ICC over their territory. But we’re not on their territory. We’re occupied, so Hawai’i falls under the universal jurisdiction of war crimes.
What we need to do is isolate. Partners of the United States are all over the world that America controls through the economy and whatever other pressures they apply. The object is to separate and isolate. Canada: war crimes. Canada is responsible for dealing with it through its own statutes. Japan: war crimes. Switzerland, Great Britain, New Zealand: same thing. We want everyone to look at the United States and realize that it is not in their vested interests to align themselves with the U.S.
But I need them to see us because I’m going to use international law to show them not just how they are part of the problem, but also how they can become part of the solution. Until that happens, America controls everyone, and America is very strong, there is no doubt about that. But this is realist theory as Hans Morgenthau defined it: countries do something only because of their own vested interests.
For example, economic benefits. I’m going to show that all titles are no good in Hawai’i. There is evidence for that. People can look at it and try to falsify it. Insurance companies will go bankrupt because nothing was notarized legally.
Another example: the military. What is the thorn in the side of China? U.S. Pacific Command. According to Geneva Convention number 5, rights of territories of neutral states, the military of a belligerent cannot operate on the territory of a neutral country. We’ve always been neutral. It’s in our treaties. For Russia, again, it’s the Pacific Command. When you speak to their vested interests, which is realist theory, then everybody will do what they need to do, but we are just ensuring that the laws of occupation are complied with. Period. Just follow the law. I’m careful in managing how these things take place, but there are things that you cannot control.
DR: Well, you keep the knowledge alive. It may take a while, until America is in a weakened position and has to face this problem.
KS: No, it could be quick.
DS: You think so?
KS: The one thing about ending occupation is that it will definitely affect the economy of the United States. Every business in Hawai’i will be gone. They never existed. That could create a domino effect. Hawai’i is going to create a crisis.
DR: Is there any way to make a simple transition where you say Hawai’i state law now becomes Hawai’i national law for a transition period?
KS: I covered that in my doctoral dissertation. That’s based on necessity. The way you can fix this problem is by the very way the problem was created. In 1893, a provisional government was created where they carjacked the Hawaiian Kingdom government. But there is a way to fix this problem because the State of Hawaii, as an armed force, pretending to be a government, can become a government under the laws of occupation. That’s a military government. Article 1 of the Hague Convention says an armed force, an organized militia, as well as the military of the state can issue a proclamation declaring it to be a military government which would be a proxy government for administering the laws of the occupied state, pursuant to Article 43 of the Hague Convention. The governor today can issue a proclamation declaring the State of Hawaii to be a military government.
They did this in 1941 after Pearl Harbor was attacked. Governor Poindexter declared martial law, created a military government led by General Short, and it was then under military control. This time it would be done under international law. Once you declare yourself to be a military government, you are now a bona fide government and that government can issue a proclamation that all laws illegally imposed from 1893 to the present will be the provisional laws of the occupied state so long as these laws do not run contrary to the letter, spirit and intent of Hawaiian law as it was.
Once a provisional government is there, we can begin to transfer authority back to the lawful government. The legislature will take up the issue of enacting those provisional decrees by the military governor—who could be the same governor who is running the State of Hawaii now. This is not far-fetched. It’s actually very conservative.
DR: You could even have a Status Of Forces Agreement and the Pacific Command would just carry on.
KS: No. We don’t want that because we are neutral in our treaties.
DR: But the new legitimate government may say, “We don’t want to be neutral anymore. We want to be protected by a larger power or an alliance.”
KS: Why would we do that? That’s crazy because you just turn yourself into a target.
DR: Exactly, but Japan did it, and so many other countries have done it.
KS: Well, Japan had to do it because they lost the war. That comes from the treaty of surrender.
DR: But seventy years later, they still want American bases there.
KS: Yes, they’re tied. But the important thing about Hawai’i is we are neutral. We are not a neutralized country. Switzerland, Belgium and Luxembourg agreed to neutralize as a condition for recognition of their independence. We are a neutral country that ensured our neutrality was enshrined in treaties. We are in the middle of the Pacific. Anybody can make use of the harbors, but they’ve got to disarm. When they get out of our territorial waters, they can go fight, but we are neutral.
We cannot do anything else because once you give up neutrality, you’ve really lost your independence. If you get into a Status of Forces Agreement, that’s an alliance and you become a part of war. We are not going to allow that. We are like Switzerland in the middle of the Pacific.
DR: I hope it stays that way.
KS: It has to because you don’t fix this problem of being kidnapped by asking to be adopted.
America has to pay compensation and restitution and stay out of Hawai’i. Then the only way they can come in is through diplomacy, through treaties, through trade, but they can keep their sovereignty for themselves.
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