The following essay was originally published by Honolulu attorney Patrick Hanifin in 1982 in the Hawai'i Bar Journal. Mr. Hanifin has very kindly given his permission to post his scholarly article on this website. There are 152 footnotes, indicated throughout the text as, for example, /7 meaning footnote 7. All footnote contents are gathered at the end. Many footnotes are expository: that is, they often contain not merely a source reference but also contain important further discussion of a point.
Mr. Hanifin’s essay was in response to an essay in the previous issue of the Hawaii Bar Journal: Ramon Lopez-Reyes, "The Demise of the Hawaiian Kingdom: A Psycho-cultural Analysis and Moral Legacy (Something Lost, Something Owed)”, XVII HAWAII BAR JOURNAL No. 1 (1982). Unfortunately, Mr. Lopez-Reyes’ article is apparently unavailable on the internet.
A pdf version of Mr. Hanifin’s essay can be downloaded from
An informal summary of of Mr. Hanifin’s essay, by Mr. Hanifin himself, can be seen on this website at
Unfortunately, Patrick Hanifin is no longer able to respond to inquiries about his work. He died on June 14, 2003 at the age of 48. A webpage tribute to him, focusing on his scholarly writings and legal work on behalf of unity and equality in Hawai’i, can be found at:
Although the following essay was written 20 years ago, its concepts are timeless, and address the question whether the kanaka maoli people of today are owed any reparations for the "losses" which "they" "suffered" in the overthrow of the Hawaiian monarchy in 1893. Some readers may view this essay as a cold, ruthless, merciless dissection of the deeply felt lingering pain of the kanaka maoli people. However, Mr. Hanifin shows respect to the sovereignty activists by taking their arguments seriously. When the activists cite far-fetched legal principles and convoluted theories to support their views, they must be prepared to see those arguments subjected to the most careful scrutiny that a legal scholar can bring to bear upon them.
HAWAIIAN REPARATIONS: NOTHING LOST, NOTHING OWED
Patrick W. Hanifin
XVII HAWAII BAR JOURNAL No. 2 (1982)
(c) Copyright Patrick Hanifin 2001, all rights reserved.
The Native Hawaiian Study Commission has released a
draft report finding
that Hawaiians have no present legal right to
reparations.1/ Its final
report will consider whether Hawaiians have any moral
reparations. This is a matter where moral rights
cannot be entirely
divorced from legal rights. If no one has stolen
anything which you had
a legal right to, then you have no moral right to
reparations for theft.
The basic thesis of this article is simple. Most
Hawaiians owned no land
in 1893 and had no political power. No Hawaiian lost
land because of the
Revolution and few permanently lost power. Those who
lost nothing could
claim nothing for damages; those who lost something
are dead. Since
there is no moral right to inherit political power,
descendants have no moral right to reparations.
Reparations are payments made to correct past
injustices. They should
not be confused with payments made to help someone
because he is poor
through no fault of his own.2/ A man gets welfare
because he is poor; he
gets reparations because he has been wronged.3/
Proponents of Hawaiian reparations assume that if they
can show that
American intervention in the 1893 Revolution was
unjust then it
automatically follows that the United States
government owes enormous
reparations in cash, land and political power to
Aboriginal Lands of Hawaiian Ancestry Association
(ALOHA) suggests that
a billion dollars cash and several billion dollars
worth of land would
be a fair amount.5/ The Office of Hawaiian Affairs
(OHA) has suggested
that the Hawaiians may be entitled to the present
value of the former
Crown lands and Government lands of the Hawaiian
Monarchy -- over 1.75
million acres.6/ OHA has also argued that the
Hawaiians are also
entitled to substantial powers of self-government:
roughly like Indian
tribes, they should form a state within a state.7/
The issue is whether the law should be changed to fit
the opinion that
Hawaiians have a moral right to repara-tions. If there
were now a legal
right to reparations the Hawaiians could have sued the
and won years ago. There would be no need for a
special commission or a
special act of Congress. This claim is before Congress
rather than the
courts because there is now no legal remedy for the
Even assuming that American intervention in 1893 was
improper, no moral
right to reparations follows. Advocates of
reparations have ignored at
least nine other questions which must be answered
before they can prove
1. What did the alleged "victim" have at the time of
the "theft?" If he
did not have it, it could not have been stolen.
2. Of what the "victim" had, what did he have a moral
right to at the
time of the "theft?" If he had no moral right to it,
he has no moral
right to get it back or to get compensation for its
3. What was taken from whom?
4. Assuming that what was taken was taken immorally,
has any of it been
5. If the "victims is dead, do any of his descendants
inherit his moral
claim for reparation?
6. Who, if anyone, inherits it?
7. Have any benefits been received by the victim" or
his heirs as a
result of the "thefts?
8. Should reparations be reduced by the amount of
9. If people disagree on which moral principles
decide these questions,
how do we decide which is the true moral principle to
be applied? This
question is buried at the bottom of the whole
discussion, for if there
is no agreement on moral principle there can be no
agreement that the
reparations are morally due.
Since reparations proponents are the ones who are
claiming billions of
dollars in public money and land as well as demanding
power, they have the burden of persuasion on all of
Any moral right to reparation from the American
government rests on the
theft of land or of political power or both as a
result of American
intervention in the Revolu-tion of 1893.9/
Nothing before 1893 counts. The claim is against the
The government is liable only for the actions of its
United States had no responsi-bility for non-Americans
such as British
Royal Navy Captain James Cook who first exposed
Hawaiians to the Western
World.10/ Still less was it responsible for the
actions of native-born
citizens of Hawaii such as Lorrin A. Thurston and
Sanford Dole, the
leaders of the Revolution. Nor did the American
government have any
responsibility to see that private American citizens
in Hawaii obeyed
Hawaii law.11/ It was and is up to each nation to
enforce its own laws.
The only intervention in the Hawaiian kingdom by
American officials and
military forces occurred during the 1893 Revolution.
The day before the
American Minister Stevens ordered American marines
from the U.S.S.
Boston to land in Honolulu, allegedly to prevent
fighting which might
endanger American lives or property.12/ The next day,
revolutionaries, without assistance from American
troops, seized the
government building.13/ Queen Liliuokalani put up no
armed resistance to
the takeover.14/ Minister Stevens recognized the
revolutionary government but did not use force or say
that he would use
force to support the Revolution.15/ The Queen
apparently believed the
presence of American troops in the city was an implied
threat to use
them to support the rebels.16/ She put her surrender
of power in the
form of a "surrender to the superior forces of the
United States.”17/ In
1898, America annexed Hawaii at the request of the
Republic of Hawaii, a
regime which came to power as a result of the
Thus, the case for reparations can be built only on
the results of the
I. CLAIMS ARISING FROM ALLEGED THEFT OF LAND
For our purposes, there were three kinds of land in
1893: private lands,
Crown lands and Government lands.
I-1. PRIVATE LANDS: CLAIMS ARISING FROM ALLEGED THEFT OF
Various individual Hawaiians owned various pieces of
private real estate
or interests in private real estate in 1893. However,
only about 9% of
all Hawaiians at that time owned private land.l9/ By
1893 about eighty
percent of all privately owned land was owned by
Hawaiians who did not own private land could not have
had it stolen from
them and so could not have any claim for repara-tions
arising from a
theft of private land.
Apparently, no private land was seized as a result of
Revolution.21/ If any was seized, only its individual
owner or owners
would have had any moral claim to compensation for the
seizure. Theft of
private land, even if it occurred, could not be a
basis for reparations
for any significant number of Hawaiians. Thus, as to
private lands there
is no need to ask the other questions noted above.
I-2. CROWN LANDS: CLAIMS ARISING FROM ALLEGED THEFT OF
The Crown lands in 1893 were neither private nor
Rather than distort the picture by trying to squeeze
the Crown lands
into any modern legal category, it is best to look at
who actually had
what rights, duties, privileges and powers relating to
Justice Oliver Wendell Holmes noted that a right or
relationship is a prophecy of what the courts will do
in fact. A "legal
duty so called is nothing but a prediction that if a
man does or omits
certain things he will be made to suffer in this or
that way by the
judgment of the court; and so of a legal right.23/
In 1893 the total area of the Crown lands amounted to
971,463 acres.24/ Property interests in the Crown
lands were regulated
by the Acts of June 7, 1848 and of January 3, 1865 and
by the 1887
Constitution of the Kingdom of Hawaii.25/ Queen
Liliuokalani had a right
to receive the income from the Crown lands, an income
which amounted to
about $50,000 per year.26/ She seems to have been able
to spend the
money as she wished although the act of 1865 says that
the Crown lands
were "for the purpose of maintaining the Royal estate
However, the Queen had no control over the land
itself. She had no power
to lease, sell or transfer the lands or to decide how
they would be
All such decisions were made by three Crown land
commissioners who served at the time of the Revolution
appointed by the Queen or her predecessors but could
not be removed by
her.30/ Two of the three commissioners had to be
Legal title to the Crown lands was vested in the
officials, not as individuals.32/ Suits concerning the
Crown lands were
brought against the commissioners, not against the
commissioners had the duty, right and privilege to
manage the land as
they saw fit; they could lease it but could not sell
it.34/ They had a
duty to pay the Queen the annual income from the
Liliuokalani could pass on neither the Crown lands nor
their income to
her personal heirs. When a monarch died the Crown
lands passed to the
next monarch.36/ The 1887 Constitution set out the
rule for succession
to the Crown: Liliuokalani was named in the
Constitution as King
Kalakaua's successor.37/ Since she had no children she
constitutional power to nominate an heir subject to
approval by the
Nobles.38/ The Nobles were a group of legislators who
overwhelmingly Caucasian.39/ Liliuokalani appointed
her niece Princess
Kaiulani as her heir and the Nobles approved.40/
The 1887 Constitution provided that if a monarch died
without a living appointed heir the legislature of the
Kingdom was to
elect an ali'i as monarch. 41/ The legislature also
acts (with the monarch's approval) empowering the
commissioners to sell certain pieces of land.42/
Thus Liliuokalani had only a right to receive the
income of the Crown
lands for her life. This was all she lost in 1893 when
she lost the
Crown. Kaiulani had only the hope of inheriting the
right to receive
income from the land for life if she outlived her
aunt. The rest of the
Hawaiians had no rights, privileges, or powers over
the Crown lands, or
their income at all.43/ The Crown lands themselves
belonged not to any
individual or to any group of individ-uals but to the
"Crown,” i.e. to
the office of the Sovereign, not to the individual who
Serious doubts might be raised as to whether
Liliuokalani had any moral
right to the Crown land income. She acquired that
income by being named
as the heir to the Crown in the Constitution of 1887,
a document which
she herself said, "was never in any way ratified,
either by the people,
or by their representatives, even after violence had
procured the King's
signature to it.”45/ She had been named as heir to
the throne under the
prior, defunct constitution of 1864 by her brother,
nomination was approved only by the then-unelected
Constitution of 1864 was a result of a bloodless coup
d'etat led by King
Kamehameha V after the proposals embodied in it had
been rejected by an
elected constitutional convention.48/ The Crown lands
in 1893 were the
last remnant of lands seized by Liliuokalani's royal
Kamehameha I in aggressive warfare.49/ People who
believe that American
title to the land today is invalid because it is
founded on conquest may
be hard put to explain why Liliuokalani's claim was
not equally invalid.
If Liliuokalani had no moral right to the income, then
she had no moral
right to compensation for its loss.
Liliuokalani lost the income from the Crown lands as a
result of being
deposed from the throne by the Revolution of 1893. The
Government of the
Republic of Hawaii took over the Crown lands and
provided explicitly in
the Constitution of the Republic that those lands were
lands.50/ Liliuokalani's suit against the United
States to recover the
lands after Hawaii had become an American territory
Even assuming that the former Queen had a moral right
for the loss of the Crown land income, that right died
Princess Kaiulani predeceased the Queen by eighteen
the income was payable only "for the use and benefit
of the Hawaiian
Sovereign,”53/ the only person who could claim the
income from the Crown
lands now is that person who has been elected by the
Legislature of the
Hawaiian Kingdom as sovereign. Of course, there is no
Consequently, today's Hawaiians have no moral claim to
regarding the Crown lands.54/
I- 3. GOVERNMENT LANDS: CLAIMS ARISING FROM ALLEGED THEFT OF
As with the Crown lands, the first question is who
actually had what
rights, duties, privileges and powers relating to the
at the time of the Revolution.
Statutes and case law established that the Government
lands belonged to
the Government, a legal person separate and distinct
from all natural
persons.55 / Day-to-day decisions about land use,
sales and leasing were
made by the Minister of the Interior.56/ After the
establishment of the
1887 Constitution the Minister of the Interior was
The Cabinet, in the exercise of its general executive
make decisions about land use but could not lease or
land.58/ Final power and right to decide how and when
was to be used, sold or leased was vested in the
Private individuals had no powers, rights or
pri-vileges to use
Government land without Government authori-zation or
to decide how it
was to be used.60/ Hawaiians, like any other
Government land without Government authorization could
be convicted of
trespass.61/ If Hawaiians had any rights or powers
land they had only the political right and power to
controlling the Government.62/ Since no Hawaiian owned
lands in 1893, no Hawaiian had any claim for
reparations due to their
Advocates of reparations may argue that at least the
the Government lands or a moral claim to reparations
for their loss when
the Government of Hawaii ceased to exist in 1898. The
change of form of
government in 1893 from a monarchy to a provisional
govern-ment and the
further change in 1894 from the provisional government
to the Republic
did not alter the ownership of the land by the
Government of Hawaii.
Ownership changed only in 1898 when the Government of
Hawaii gave the
Govern-ment lands to the Government of the United
States. 63/ The
question is whether Hawaiians in 1898, although a
minority of the
population of the Islands, had an exclusive moral
right to inherit from
the Government, even though the positive law said that
they did not.
Property is a set of legal relationships among people
things.64/ Property interests are created and
maintained by positive
law: constitutions, statutes, regulations and case
law. "Property and
law are born and must die together. Before the laws
there was no
property: take away the laws, all property ceases . .
. .65/ Inheritance
of property is one sort of purely legal
relationship.66/ A person
inherits either by will or by intestate succession.
Wills are effective
only because the positive law says so.67/ When a
person dies without a
will a statute determines who will get his
property.68/ There is no
inheritance except according to positive law.
Legally, the land belonging to the Hawaiian Government
in 1898 has
passed to the U.S. Government and to the State of
from the Government contrary to positive law is even
than inheritance from a natural person contrary to
positive law since
the government is created by law (a constitution) and
receives all its
powers to transfer land from that law. Therefore, the
Hawaiians did not
inherit land from the Government of Hawaii.
To refute this analysis, reparations advocates would
have to prove that
there is a specific, universal, moral law of
inheritance which, when
applied to Hawaiian history, overrides a century of
positive law and
gives only the Hawaiians a moral right to Government
land. Even proving
that the people of a country sometimes have a right to
inherit from the
government is not enough. Reparations proponents must
prove that the
"moral law" has a racial restriction: that even though
were far less than half the population of Hawaii in
1898 they were
somehow entitled to all of the Government land.70/
Some have suggested that the Hawaiians had "aboriginal
"recognized title" to the Government and Crown lands
and that these
rights are inherited by Hawaiians today.71/ The issue
Hawaiians had such a property right in 1893.72/
"Aboriginal title" is an American legal concept
defining a set of legal
relationships among the U.S. government, individual
and various Indian tribes living in the United States
but living apart
from white American society. Under the doctrine of
the land on which an Indian tribe was living was owned
in fee simple
absolute by the United States government.73/ This fee
arose initially from discovery of the land by white
Americans or by
subjects of a European power which subsequently
transferred its claim to
Aboriginal title "is not a property right:" the Indian
tribe has only
the mere "right of occupancy."75/Land held by Indians
title. was held col-lectively by the tribe, or by a
subgroup of the
tribe such as a clan, not by any individual
Indians.76/ In Hohfeldian
terms, this "right of occupancy would be characterized
"privilege" of the tribe to use the land as it saw
fit.77/ However, this
privilege did not carry with it the Hohfeldian "right"
that the U.S.
government not interfere with the tribe's use. The
U.S. government had
the exclusive right and privilege to extinguish the
aborig-inal title by purchase or conquest.78/ The U.S.
could take the
land without being obliged by the Fifth Amendment to
compensation.79/ Purchases from Indian tribes were
valid even if the
Indians sold literally "under the gun."80/
Consequently, even if Hawaiians had aboriginal title
to the Government
lands under Hawaii law in 1893 they did not have a
property right and
were not entitled to compensation.
"Recognized title" is similar to aboriginal title
except that the
government owes compensation under the Fifth Amendment
for taking land
held by recognized title.81/ "Recognition" means that
Sovereign has granted an Indian tribe the right to
permanently use and
occupy certain land.82/ The grant is to the tribe as a
not to the individual Indians.83/
Since the U.S. Congress was not Sovereign in Hawaii
before 1898, it
could not have granted Hawaiians recognized title.84/
In none of the
treaties between the U.S. and the Hawaiian Kingdom did
the U.S. purport
to grant any land in Hawaii to the Kingdom.85/ Nor
But perhaps there was an equivalent doctrine in 1893
Hawaiian law in
which the Hawaiian Government had played Congress'
role as sovereign and
the Hawaiians played Indians. Did the Hawaiian
Government recognize a
"Hawaiian tribe's" title to the Government lands?
There was no express mention of any doctrine of
recognized title in the
law of the Hawaiian Monarchy.
This is not surprising. There was no place and no need
title. The doctrine was created for and existed in a
situation in which
a powerful, dominant, Western society with a Western
legal and political
system was pushing into land held by weak, primitive,
operating with only "customary law." The tribes
existed on the
margins--geographically and politically--of the
dominant society. The
doctrines of recognized title and aboriginal title
existed to satisfy
the contradictory desires of the dominant society to
grab all the land
that was worth grabbing, yet salve its conscience by
giving the tribes a
minimally fair deal.
In Hawaii in 1893 there were no marginal tribes. The
Hawaiians were not
and never had been tribal.87/ They were the largest
part of the society
and a majority of the electorate. They had long since
Western political system of constitutional monarchy
and much Western
culture. The Kingdom had adopted the Anglo-American
common law.88/ The
Government already owned the Government land; it had
no need to grab it.
If the pure form of recognized title did not exist
openly, was some
"quasi-" form secreted in Hawaiian law? Proponents of
suggested three quasi-recognitions of collective
Hawaiian title: the
1840 Constitution; King Kamehameha III's Mahele Grant
to the Government;
and the Legislature's acceptance of the granted
The Kingdom's Constitution of 1840 declared that to
"Kamehameha I . . .
belonged all the land from one end of the Islands to
the other, though
it was not his own private property. It belonged to
the chiefs and
people in common of whom Kamehameha was the head and
had the management
of the landed property.”90/ The Constitution went on
to provide that
Kamehameha III had succeeded to Kamehameha I's
The 1840 Constitution is no support for extending
doctrine to Hawaii. It was repealed in 1852 and by
1893 had been a dead
letter for 41 years.92/ The Constitution of 1852,
which replaced it, had
no provi-sion recognizing common rights to land, nor
Consti-tution of 1887, which was in effect in 1893.
Even before the 1852 Constitution was adopted, the
Mahele separated the
various undivided interests in each piece of land.93/
The Principles of
the Land Commissioners, was the official and
authoritative gloss on the
reference to common rights in the 1840 Constitution as
well as on the
old land customs and new land law.94/ The
the ancient customs of land holding, explained that
the King owned an
undivided interest in all the land of Hawaii,
approximating one-third of
its total value.95/ Each konohiki owned an approximate
undivided interest only in that particular piece of
land to which the
King had given him feudal rights.96/ Each tenant had
one-third undivided interest only in the particular
piece of land which
he farmed.97/ The theory that every Hawaiian owned an
in every square inch of Hawaii is simply wrong.98/
Moreover, as a result
of the land reforms of the 1840's Hawaii adopted the
common law of property.99/
During the Mahele the King
conveyed most of
his share of the lands to the Government.l00/ The
conveyance says that
the King was giving "to the chiefs and people the
larger part of my
royal land, for the use and benefit of the Hawaiian
legislature in the act of June 7, 1848 accepted the
gift, saying that
the land had been
"made over to his chiefs and people
in the keeping of
the House of Nobles and Repre-sentatives or such
person or persons as
they may from time to time appoint, to be disposed of
in such manner as
the House of Nobles and Representatives may direct,
and as may best
promote the prosperity of this Kingdom and the dignity
of the Hawaiian
Crown. . . ."102/
By statute the legislature,
"declared these lands to
be set apart as the lands of the Hawaiian
Both Kamehameha III and the legislature used the
phrase "chiefs and
people" as legally interchangeable with "the Hawaiian
The Hawaii Supreme Court during the Monarchy
repeatedly interpreted the
King's grant and the Legislature's acceptance of it as
ownership in the Government alone.105/ Statutes passed
Monarchy confirm this view.l06/
If the Hawaiians as a group had recognized title to
Government land then
the Government would have been required to compensate
them every time it
sold, leased or used any Government land. But it did
not do so and was
never required by law to do so.
No nineteenth century precedents recognize any
duty of the Government to act as trustee of the land
for the Hawaiians.
A beneficiary has a property interest in a trust
because if the trustee
violates his fiduciary duty the court will order the
trustee to cease
the violation and to pay for the damage he did. 107/
But there are no
reported cases during the monarchy in which a Hawaiian
challenged in court a government action regarding the
as a violation of the Government's supposed fiduciary
duty. If a citizen
disliked a use or sale of government land, his only
recourse was to try
to get the responsible government officials voted out
of office 108/
If the Hawaiians as a separate group did not hold
title to the Government land, perhaps the Hawaiian
Government was itself
the "tribe" which had recognized title.
The Kingdom of Hawaii was not a tribe; it was a
sovereign state, modeled
on Britain, and was a foreign state as far as the U.S.
109/ A tribe is not a foreign state,ll0/ so a foreign
state is not a
tribe. Tribesmen are tribesmen because their parents
But under the laws and 1887 Constitution of the
Kingdom a person did not
need to be an ethnic Hawaiian to be a citizen of the
Kingdom nor did he
need to be a citizen to vote.l12/
The doctrine of recognized title makes sense only if
there is a
sovereign state distinct from the tribe whose title
recognizes.113/ Since the Hawaiian Government was the
sovereign it could
not also have been the "tribe."
Ultimately, the attempt to squeeze recognized title
Hawaiian law boils down to the trivial truism that the
Government owned the Government lands. We have already
seen that the
Government was a legal person separate from the
singly or collectively.114/ And we have seen that the
Hawaiians did not
"inherit" land from the Government.115/
"When you ain't got nothing you got nothing to
lose.”116/ Since the
Hawaiians had no recognized title to land in 1893 they
could not have
such title stolen from them. Their descendants today
reparations for theft of land held by recognized
II. CLAIMS ARISING FROM LOSS OF POLITICAL POWER
If the Hawaiians of 1893 had anything stolen from them
reparations are due to their descendants today, it
could only have been
What political rights and power did the Hawaiians of
1893 have to
control the Government of the Kingdom, particularly
with regard to land
use? Most had none at all and those who had some had
more than they
Four classes of political power-holders can be
distinguished in the
Hawaiian Kingdom in 1893: (1) Queen Liliuokalani; (2)
ministers; (3) legislators; and (4) voters. The
majority of people in
Hawaii in 1893 fell into the powerless group of
The Queen's powers were essentially restricted to the
power to appoint
cabinet ministers to fill vacancies and the power to
subject to an override by two-thirds of the
legislature.119/ Apart from
these powers, the Queen could act only on the advice
of her cabinet and
could not refuse to act if a majority of the cabinet
told her to
act.l20/ She could not remove the cabinet
ministers.121/ The cabinet
ministers she chose could only be removed from office
by a legislative
vote of no confi-dence.122/ Of the five cabinets she
appointed in the
last year of her reign, four were dismissed by
legislative votes of no
confidence and the fifth was removed by the
As was noted above, the Queen's moral claim to her
consequently to its powers is disputable.124/ It is
the Queen's power was legitimated by the consent of
the governed. The
Queen claimed popular support from the Hawaiians but
Hawaiians made up
well less than half of the population in 1893. 125/
Even if she acquired a moral right to reparations for
the loss of her
political power, she shared her claim with no one
because she shared her
power with no one. There is no one today who can claim
that power as the
rightful monarch of Hawaii under the 1887
At the time of the revolution only one of the four
Samuel Parker, was even part-Hawaiian.127/ Of the 48
about one-half were Hawaiian or part-Hawaiian.128/ The
great majority of
Hawaiians and part-Hawaiians were not even eligible to
serve in the
legislature. They were excluded by constitutional
legislators to be men and to be literate in Hawaiian
or a European
language and to meet stiff property requirements.129/
The powers held by
Parker and the Hawaiian and part Hawaiian legislators
in January of 1893
were not hereditary; they were to last only as long as
their jobs did.
About three out of four Hawaiians could not vote at
all.130/ Since they
had no political power they lost no political power in
the Revolution of
1893 and had no claim for reparations. Of those who
could vote, a
further three out of four Hawaiians could vote only
but could not vote for Nobles.131/ They were thus
denied any political
power or influence over half the Legislature. Only
about one out of
sixteen Hawaiians could vote for both Nobles and
course, there were no popular elections for monarch or
for the cabinet
However, those Hawaiians who could vote had far more
than was morally justified. Hawaiians who could vote
Representatives amounted to about two-thirds of the
Representatives.l34/ But they were only about 15-18%
of the total adult
population of the islands.l35/ Those Hawaiians who
could vote for Nobles
amounted to about one-third of the electorate for
Nobles, but only about
4.5% of the adult population.l36/
The electoral power of those Hawaiians who could vote
disproportionate to their numbers in the general
population because the
vast majority of the adult population was excluded
from the ballot box
by racial, sex and wealth discrimination. No women or
vote.l37/ Voters also had to be literate in Hawaiian,
English or a
European language.l38/ They had to have lived in
Hawaii for at least one
year to vote for Representatives and three years to
vote for Nobles139/
but foreigners could vote, unless they were not
also had to have paid all their taxes and had to have
vote.l4l/ "Idiots,” the "insane," and convicted felons
vote.l42/ Persons voting for Nobles had to meet the
qualification of either owning property of at least
$3,000 net value or
having an income of at least $600 per year.l43/ This
qualification alone cut out about three-quarters of
otherwise eligible. 144/ There were more Oriental
adults in Hawaii in
1893 than there were adult Hawaiians.l45/ True, most
of them were
aliens, but white aliens could vote; the
discrimination was purely
Presumably everyone agrees that all adult citizens
(with the exception
of insane and retarded persons) had a moral right to
vote and that it
was immoral to deny the vote to anyone because of
race, sex, or
poverty.l47/ Since white aliens were allowed to vote,
the exclusion of
non-white aliens was immoral racial discrimination.
Thus the morally
proper voting strength of those Hawaiians who could
vote was their
number divided by the total number of adults in the
15-18% of the electorate. Their power over that amount
was immoral. They
had no moral right to repara-tions for its loss.
During the period of the provisional government and
political power was tightly held by the revolutionary
However, when Hawaii became an American territory
everyone who had been
disenfranchised regained his vote.l49/ Furthermore,
the racial and
property qualifications were dropped; in 1920 women
got the right to
vote.l50/ Thus, many Hawaiians who had no political
power or rights
under the monarchy obtained rights and power.
Hawaiians today have exactly the same political rights
as everyone else
and exactly the same voting rights: one person--one
vote.l51/ To claim
any more than that because a minority of their
ancestors had more power,
or to claim reparations because a few of their
ancestors may have lost
political power is to claim a moral right to inherit
political power. No
one has any such right.l52/ Inheritance of political
power is the
principle of absolute monarchy, of aristocracy, and of
racism. It has no
place in democratic American society.
Since no Hawaiian living today was deprived of any
political power in 1893, no Hawaiian today has any
right to any
reparations for loss of that power. We have already
seen that no one
today has any right to repara-tions for loss of land.
The conclusion is
clear: there is no moral obligation to pay Hawaiian
1/ NATIVE HAWAIIAN STUDY COMMISSION DRAFT REPORT OF
AND PUBLISHED FOR PUBLIC COMMENT IN ACCORD WITH P. L.
96-565, TITLE III
S 303(C) (1982) (hereinafter "NHSC Draft") at 227-243.
2/ This distinction is explained in more detail in R.
and Hawaiian Native Claims, in AMUNDSON, THE ISSUE OF
CLAIMS: A SOURCE BOOK 14-15 (1980).
3/ Consequently, statistics showing that the average
Hawaiian is poorer
than the average member of some other ethnic groups do
reparations. If poverty is the problem, reparations
are not the remedy.
Reparations would be both over- and under-inclusive:
they would go to
rich Hawaiians but not to poor non-Hawaiians.
Opposition to Hawaiian
reparations should not be mistaken for opposition to
assist all poor people regardless of race.
4/ See e.g. excerpted statements from Congressional
AMUNDSON, supra n. 2. For the purposes of this article
a "Hawaiian" is
anyone with any Hawaiian ancestry. Since the thesis of
this article is
that no reparations are due to any living "Hawaiians"
there is no need
to consider whether people who have more Hawaiian
ancestry should get
more reparations than people who have less. See n. 152
5/ At ALOHA's request a bill was submitted to Congress
to give Hawaiians
one billion dollars in the form of a trust fund. N.
Hawaiian Land Rights, 63 CAL. L.REV. 848, 881 (1975).
6/ Reparations and Restitution: Documents Submitted to
Hawaiian Study Commission by the Office of the
Hawaiian Affairs, 17
7/ Id. at 5-10.
8/ See NHSC Draft at 227-243. Karen N. Blondin
suggests in A Case for
Reparations for Native Hawaiians, 16 HAW. B.J. Winter
1981, at 13,
16-17, 25-28 (1981), that Hawaiians are an "Indian
tribe," eligible to
put in a claim for lost land under the Indian Claims
Commission Act, 66
Stat. 1049, 25 U.S.C. ? 70 (1976). Even if Hawaiians
are an "Indian
tribe," despite being neither Indians nor tribal, that
Act's statute of
limitations expired in 1951:
The Commission shall receive claims for a period of
five years after
August 13, 1946, and no claim existing before such
date but not
presented within such period may thereafter be
submitted to any court or
administrative agency for con-sideration, nor will
there-after be entertained by the Congress. Aug. 13,
1946, c. 959, sec.
12, 60 Stat. 1052. 25 U.S.C. sec. 70K. [Emphasis
If Hawaiians are an "Indian tribe," they have slept on
There appears to be no reason to give them another
chance for recovery
which other "Indian tribes" are denied.
9/ Melody K. MacKenzie, Sovereignty and Land: Honoring
Native Claim (OHA, 1982) at 82-91 proposes an
alternative basis for
reparations: an alleged breach of trust by the U.S.
She compares the
role of the U.S. as sovereign acting as trustee of
tribal lands with the
U.S. Government's past role as trustee of Hawaiian
Homes land. A trust
cannot be breached before it exists. The alleged
breach of trust was
American intervention in 1893 but on her analysis the
trust did not
begin until Congress passed the Hawaiian Homes
Commission Act in 1920.
10/ If their complaint is that the Hawaiians did not
adapt well to
contact with the Western World, Hawaiian groups might
their claim to the British Parliament since Capt. Cook
was an agent of
Britain sailing under British government orders to
explore the Pacific
and report on any islands he found.
11/ H. KELSON, PRINCIPLES OF INTERNATIONAL LAW 196-203
(2d ed. 1967) (a
state is responsible only for the authorized and
unauthorized acts of
its agents, and for failing to prevent private persons
in its territory
from injuring another state). If the American
government had the duty to
enforce laws in Hawaii then it must have had the
privilege to use force
in Hawaii; otherwise it could not have done its duty.
Yet opponents of
reparations deny that the American government had any
intervene in Hawaii. Therefore they must agree that
the U.S. government
had no duty to intervene.
12/ 3 R. KUYKENDALL, THE HAWAIIAN KINGDOM, 594-596
KUYKENDALL). As to the events of the Revolution see
13/ Id. at 599-600, 602.
14/ Id. at 599-605.
15/ Id. at 601-605.
17/ Id. at 603.
18/ Id. at 605-650. The Republic was created by the
leadership to “‘hang on’ until annexation [to America]
Id. at 648. Stevens probably acted beyond his
authority when he ordered
the Boston's troops to land. But American annexation
of Hawaii --
accepting the fruits of Stevens' action -- amounted to
a ratification of
his acts. Consequently the U.S. should be considered
for any reparations that may be due. Cf., RESTATEMENT
19/ See, THRUM'S HAWAIIAN ANNUAL 14 (1892)(giving 1890
In 1890 there were 3,666 Hawaiian and part-Hawaiian
were 78% of all land-owners in the Kingdom.
As a result of the Great Mahele of 1848, 245
landlords subordinate to the King) received
quit-claims to land from the
King. 1 KUYKENDALL, 287 (1938). However, some of these
persons never got
title to the lands because they failed to get Land
Commission Awards or
failed to pay the required commutation fees. As late
as 1909, the
government was still trying to get land claimants to
acquire title to
land offered to them as a result of the Mahele. Act of
April 20, 1909,
Act 90 sec. 1 1909 Haw. Sess. L. 118. Persons who did
not pay the
commutation fees within the allotted time (which was
extended to 1895)
simply did not own the land. It belonged to the
government which could,
and occasionally did, sell it to someone else. See
Kenoa v. Meek, 6 Haw.
63 (1871), Thurston v. Bishop, 7 Haw 421 (1888). About
commoners received kuleana grants under the Kuleana
Act of 1850. Act of
August 6, 1850, sec. 1  Haw. Laws 202 in 2
R.L.H. (1925) at 2141.
Study by Marion Kelly, of the Bishop Museum cited in
Hawaiian Land Rights, 63 Cal. L.Rev. 848, 856 (1975).
The 1853 Census
reported that there were 71,019 Hawaiians and
part-Hawaiians; so only
about 12% of the Hawaiians and part-Hawaiians received
land as a result
of the Mahele and Kuleana Act. Commoners received a
total of less than
30,000 acres, less than 1% of the land in the Islands.
J. CHINEN, THE
GREAT MAHELE: HAWAI`I’S LAND DIVISION OF 1848, at 31
20/ G. DAWS, SHOAL OF TIME, 128 (1968).
21/ The only seizure of land by the revolutionaries
Kuykendall and Daws was the seizure of the Crown Lands
22/ This analysis applies the fundamental legal
conceptions as developed
by W.N. Hohfeld, Some Fundamental Conceptions as
Applied in Judicial
Reasoning, 23 YALE L. J. 16 (1913), 26 YALE L.J. 710
(1917). For a
general discussion of the Crown lands see T. M.
Spaulding, The Crown
Lands of Hawaii, Hawaii University Occasional Papers,
No. 1 (1924).
23/ O. W. Holmes, The Path of the Law, 10 HARV. L.REV.
457, 458 (1897).
24/ T.M. Spaulding, The Crown Lands of Hawaii, 20,
citing Report of the
Commissioners of Crown Lands, 1894, p. 8. But see
STORY BY HAWAII’S QUEEN, 260 (1898( (Tuttle ed. 1964)
giving the figure
of 915,000 acres.
25/ Act of June 7, 1848, L. 1848, p. 22, reprinted in
2. R.L.H. (1925)
at 2152; Act of Jan 3, 1865, L. 1864 p. 69, reprinted
in 2 R.L.H. (1925)
at 2177; Constitution of 1887, reprinted in LYDECKER,
LEGISLATURES OF HAWAI`I: 1841-1918 (hereinafter
LYDECKER) at 159 (1918),
and in THURSTON, FUNDAMENTAL LAW OF HAWAII, 181
26/ Act of January 3, 1865, supra. The income figure
is given in
LILIUOKALANI, supra, at 260.
27/ Act of January 3, 1865 2 R.L.H. (1925) at 2178.
This purpose was
reaffirmed in Gibson v. Doper, 5 Haw 383 (1885) and
v. Cartwright, 8 Haw. 697 (1890) (per Judd, C.J.) but
never used to limit the monarch's actual use of the
28/ Act of Jan. 3, 1865.
32/ Harris v. Carter, 6 Haw. 195, 208-209 (1877) (per
Judd, J.); Gibson
v. Soper, 5 Haw. 383 (1885).
33/ E.g. Harris v. Carter, supra; Gibson v. Soper,
supra, Keelikolani v.
Commissioners of Crown Lands, 6 Haw. 446 (1883). All
but one of the
commissioners who got their names in the case reports
H.A.P. Carter, J. Mott Smith and J.O. Dominis in
Harris v. Carter,
supra; C. H. Judd, W. M. Gibson, J.M. Kapena, and J.S.
in Gibson v. Soper, 5 Haw. at 384-385.
34/ Act of 1865, supra, section 4. By 1893, 752,431
acres of Crown lands
and Government lands had been leased to foreigners.
Hawaiian Land Rights, 63 Cal. L.Rev. 848, 859.
35/ Act of 1865, sec. 4.
36/ In the Matter of the Estate of His Majesty
Kamehameha IV, 2 Haw. 715
(1864); Act of 1865, supra at 2177.
37/ Constitution of 1887 Art. 22.
39/ The qualifications and powers of the Nobles were
pro-vided for in
Articles 56-59 of the 1887 Constitution. LYDECKER
165-166. The Nobles
sat together in one House with the other half of the
Representatives. 1887 Constitution Act 44; LYDECKER
164. In the 1887
legislative session 22 of 24 Nobles had Caucasian
surnames; in the 1888
session 23 of 25 Nobles had Caucasian surnames; in the
1890 session 22
of 25; in the 1892 session 21 of 27. LYDECKER at 172,
175, 178, 182. Of
those with Caucasian surnames approximately two,
Samuel Parker and Mark
P. Robinson, were part-Hawaiian. 3 KUYKENDALL 187,
558. Robinson was a
Noble in the 1887 and 1888 sessions, Parker in 1890.
178. As discussed below at two-thirds of the
registered voters for
Nobles were Caucasian. 3 KUYKENDALL 453.
40/ 3 KUYKENDALL, 476-477.
41/ Constitution of 1887, Art. 22.
42/ E.g. Act to Authorize the Commissioners of Crown
Lands to Execute a
Deed of Confirmation to a Certain Lot of Land in
Wailuku, Island of
Maui. Act of June 23, 1868 Sess. L. 1868 p. 21. Act to
Commissioners of Crown Lands to Convey Certain Parcels
of Land Belonging
to the Royal Domain, July 21, 1870 Sess. L. 1870 p.
56; Act to Enable
the Commissioners of Crown Lands to Convey a Certain
Parcel of Land
Belonging to the Royal Domain July 29, 1872 Sess. L.
1972 p. 31; Act to
Authorize the Commissioners of Crown Lands to Convey
Certain Portions of
Such Lands to Claus Spreckels in Satisfaction of All
Claims He May Have
on Such Lands. Sess. L. 1882 c. 10. For $10,000
Spreckels had bought
from Princess Ruth Keelikolani, a sister of
Kamehamehas IV and V, a
quitclaim to all her interest in the Crown Lands.
Although Estate of
Kamehameha IV and the Act of 1865 established that the
was worthless, see Keelikolani v. Commissioners of
Crown Lands, 6 Haw.
446 (1883), Spreckels prevailed on the Legislature and
the King to give
him 24,000 acres of cane land in fee simple to drop
his claim. 3
KUYKENDALL 61 (1967).
43/ Of course, a lessee, whether Hawaiian or not, had
interest in the part of the Crown lands he leased,
according to the
terms of his lease.
44/ Liliuokalani v. United States, 45 Ct. Claims
They belonged to the office and not to the individual
. . . . The
reservations made [by King Kamehameha III in 1848]
were to the Crown and
not the King as an individual. The Crown lands were
methods of income to sustain in part, at least, the
dignity of the
office to which they were inseparably attached. When
the office ceased
to exist they became as other lands of the Sovereignty
and passed to the
defendants [the United States] as part and parcel of
the public domain.
The Court of Claims followed the Hawaii Supreme Court
holding In the
Matter of the Estate of His Majesty Kamehameha IV, 2
Haw. 715 (1864),
distinguishing Crown lands from Government lands. The
Court of Claims
held that the Crown lands had never been the private
Liliuokalani because they had been neither public nor
before the overthrow of the monarchy. 45 Ct. Claims
426-428. When the
office of monarch ceased to exist in 1893 the Crown
Government lands. Id. at 428. The 1894 Constitution
of the Republic
explicitly provided that the former Crown lands were
and that Liliuokalani had no rights in them. Id.
Since the lands were
not pri-vate property at the time the U.S. took them
in 1898 the Fifth
Amendment did not require that just compensa-tion be
Liliuokalani. See NHSC Draft at 231. But see K.
Blondin, A Case for
Reparations for Native Hawaiians, 16 HAW. B.J. Winter
interpreting Liliuokalani v. U.S. as holding that "the
reserved to the office of the Crown whose chief
beneficiaries were the
Hawaiian Nation and its people." To the contrary, the
Court of Claims
cited the Act of 1865 which expressly said that the
beneficiary of the
Crown lands' income was the individual who was
monarch. 45 Ct. Claims at
426, Act of 1865, sec. 4. Melody K. MacKenzie,
Sovereignty and Land:
Honoring the Hawaiian Native Claim, makes an argument
Blondin's at 75-76 (OHA, 1982).
45/ LILIUOKALANI, HAWAII'S STORY 180-181. For a more
detailed account of
the origins of the 1887 Constitution see 3 KUYKENDALL
344-372. The 1887
Constitution was imposed on King Kalakaua by a
predominantly white group
who included many of the 1893 revolutionaries.
Nevertheless, we must
look at who had what under that constitution to
determine who had what
to lose in 1893. Since the U.S. did not help impose
Constitu-tion it is not morally responsible for that
46/ 3 KUYKENDALL 197.
47/ Id. When she was approved twelve or thirteen of
the 21 Nobles were
Caucasian. LYDECKER 136. Under the Constitutions of
1852 and 1864 Nobles
were appointed by the King.
48/ 2 KUYKENDALL 127-134 (1953).
49/ In the Matter of the Estate of His Majesty
Kamehameha IV, 2 Haw.
715, 725 (1864). As to the conquest of Hawaii by
Kamehameha I, see
generally, 1 KUYKENDALL 29-60 (1938) and DAWS, SHOAL
OF TIME 29-44
50/ Constitution of the Republic (1894) Article 95,
LYDECKER p. 222.
51/ Liliuokalani v. United States, 45 Ct. Claims 418
(1910). See n. 44
52/ N. WEBB & J.F. WEBB, KAIULANI: CROWN PRINCESS OF
HAWAII, 197, 208
(1962). After Kaiulani died in 1899, the ex-Queen
named Jonah Kuhio
Kalanianaole and David Kawananakoa as heirs to the
DAWS at 295. Since the office of Noble had been
abolished along with the
rest of the Monarchic government in 1893 their
nomination was never
confirmed by the Nobles. Article 22 of the 1887
such confirmation before Kuhio and Kawananakoa could
become the heirs to
the Crown. Without it they never became heirs.
53/ Act of 1865, supra, sec. 4; 1887 Constitution Art.
54/ There is thus no need to examine the other
questions listed above at
55/ See, In the Matter of the Estate of His Majesty
Kamehameha IV, 2
Haw. 715 (1864) (interpreting the Mahele between the
Crown lands and
Government lands and the Act of June 7, 1848, which
accepted the King's
grant, as vesting ownership of the Government lands in
and the Crown lands in the King); Harris v. Carter, 6
Haw. 195, 201
(1877) (per Judd, C.J.); Kenoa v. Meek, 6 Haw. 63
(1871); Thurston v.
Bishop, 7 Haw. 421, 430 (1888). See Act of July 11,
1851 to Provide for
the Appointment of Agents to Sell Govern-ment Lands to
the People, 1851
Sess. Laws 52, reprinted at 2 R.L.H. (1925) 2196; Act
of July 6, 1853 to
Amend the Second Section of the Act to Provide for
Agents to Sell Government Lands to the People, L. 1853
p. 55, reprinted
at 2 R.L.H. (1925) 2197; Disposition of Government
Lands, CC 1859 secs.
39, 46, 47; Cp. L secs. 39, 46, 47, C.L. secs. 166,
174, 175, reprinted
in 2 R.L.H. (1925) 2198; 1874 Sess. L. c. 24 (allowing
Interior as agent for the Government to lease sell or
owned by Government); 1876 Sess. L. c. 44 and 1878
Sess. L. c. 5
(regulating sale of Government land); Act to
Facilitate the Acquiring
and Settling of Homesteads. 1884 Sess. Laws c. 45
(regulating sale of
government land to the people), amended by 1888 Sess.
Laws c. 54 and
1890 Session Laws c. 85; Act to Determine the Status
of the Landings of
the Kingdom and the Rights of the Public Therein, 1892
Sess. Laws c. 44
(granting private persons the right to use government
56/ See e.g. Act to Organize the Executive
Departments, 1846, 1 Haw.
Statute Laws pp. 71, 95-109, 192, Act to Provide for
the Appointment of
Agents to Sell Government Lands to the People, 1851
Sess. L. 52,
reprinted at 2 R.L.H. (1925) 2196; the Homestead Acts
cited in n. 55
supra; 1874 Sess. L. c. 24 (Minister of Interior
authorized to sell,
lease or transfer any land worth less than $5,000.00);
1874 Sess. L. c.
32 (Minister of Interior to take and hold land for
1876 Sess. L. c. 44 and 1878 Sess. Laws c. 5 (Minister
of Interior to
administer public auctions of Government lands), 1884
Sess. Laws c. 37
(approving Minister's purchase of land for Molokai
leper colony), 1886
Sess. L. c. 8 (Minister to auction off land escheating
1892 Sess. L. c. 44 (authorizing Minister to make
study of Government
landings); 1892 Sess. L. c. 68 (authorizing Minister
to issue Royal
Patents to Government lands).
57/ During most of the duration of the 1887
Constitution the Minister of
the Interior was Lorrin A. Thurston, leader of the
revolutionaries. 3 KUYKENDALL 365. The other Ministers
of the Interior
were Charles Spencer, id. at 461, Charles T. Gulick,
id. at 553, 557,
and George N. Wilcox, id. at 557.
58/ 1887 Constitution Articles 31, 41, 78. Selling and
government land was the Minister of the Interior's
job, see n. 56 supra.
As the law stood at the time of the Revolution neither
the Minister nor
the Cabinet could sell land worth over $5,000.00. The
Interior could sell land worth over $5,000.00 only if
the Privy Council
approved. 1874 Sess. L. c. 24. But the 1887
Constitution prohibited the
Privy Council from doing anything not specifically
authorized by the
Constitution and selling Government land was not one
of its authorized
functions. 1887 Constitution Article 40. The Supreme
Court held that any
action which required approval of the Privy Council
could not be done if
the 1887 Constitution did not authorize the Privy
Council to decide such
matters. In the Matter of Powers of the Cabinet as to
Control of the Privy Council, 8 Haw. 586 (1891).
59/ 1887 Constitution Article 44. For the sort of laws
Legislature used its authority to enact see e.g. the
statutes cited in
n. 55 and 56 supra.
60/ The Kuleana Act, 1850 Sess. Laws. p. 202,
abolished the right of
individual Hawaiians to grow crops and pasture animals
land. NHSC Draft at 230; Levy, supra n.34, at 857. The
sometimes gave special statutory authorization to
members of the public
to use Government lands. See e.g. 1892 Session Laws c.
44 (re public use
of boat landings) 1 Haw. Statute 192 (permission to
cut timber and fuel
on Government land in accordance with provisions of
Act of November 9,
61/ E.g., 1880 Session Laws p. 56.
62/ See infra at 118-121.
63/ See KELSON, supra n. 11 at 384-385.
64/ W. N. Hohfeld, Some Fundamental Legal Conceptions
as Applied to
Judicial Reasoning, 23 YALE L.J. 16, 22-24 (1917).
65/ 1 J. BENTHAM, WORKS 309 (1859).
66/ Hohfeld, supra at 23.
67/ Before the Statute of Wills, 32 H. VIII c. 1
(1540), wills of land
were not recognized at English common law. See T.F.T.
CONCISE HISTORY OF THE COMMON LAW, 587 (5th ed. 1956)
Wills in Hawaii
today are governed by the Uniform Probate Code H.R.S.
c. 560. H.R.S.
sec. 560-2:501 empowers any person eighteen years or
over who is of
sound mind to make a will.
68/ In Hawaii this is determined by H.R.S. secs.
560:2-101 to 560:2-401.
69/ Treaty of Annexation Article II, in THURSTON, THE
FUNDAMENTAL LAW OF
HAWAII 244; Annexation Resolution, in THURSTON
251-252; Organic Act
secs. 73, 99, Act of April 30, 1900 C. 339, 31 Stat.
141; Admission Act
secs. 5, 16; Pub L. 86-3 73 Stat. 4. Some land has
been sold by the U.S.
or the State to private persons.
70/ In 1896, Hawaiians and part-Hawaiians were 36.24%
of the population
of Hawaii; in 1900 they were 25.75%. R. SCHMITT,
OF HAWAII 25 (1977).
71/ Blondin, supra, n. 8; MacKenzie, supra n. 44 at
72/ The NHSC Draft looks at whether Hawaiians have
aboriginal title or
recognized title under American law in 1982. NHSC
Draft pp. 228-239. But
the issue relevant to the moral claim is whether
Hawaiians in 1893 had
any property right under the law of the Kingdom. If
they had no such
right the land could not have been stolen from them.
73/ E.g. Johnson and Graham's Lessee v M'Intosh, 8
Wheat. 543 5 L.Ed.
681 (1823), Beecher v. Wetherby, 95 U.S. 517 24 L.Ed.
440 (1877), Oneida
Indian Nation of New York State v County of Oneida,
414 U.S. 661, 670,
n. 6, 94 S.Ct. 772, 39 L.Ed. 2d 73, 81 (1974). The
developed from pre-Revolutionary British law. Johnson
and Grahams Lessee
v. M'Intosh, supra at 576-585.
74/ Johnson and Graham's Lessee v M'Intosh, supra. n.
Indians v. United States, 348 U.S. 272, 280 75 S.Ct.
313, 99 L.Ed. 314
75/ Id. at 279: “This is not a property right but
amounts to a right of
occupancy which the sovereign grants and protects
against intrusion by
third parties but which right of occupancy may be
terminated and such
lands fully disposed of by the sovereign itself
without any legally
enforceable obligation to compensate the Indians.”
76/ Johnson and Graham's Lessee v. M'Intosh, supra, n.
Indians v. U.S., supra, n. 74.
77/ See Hohfeld, n. 64 supra.
78/ Tee-Hit-Ton Indians v. U.S., supra, n. 74; Johnson
& Graham's Lessee
v. M'Intosh, supra, n. 73: "Conquest gives a title
which the courts of
the conqueror cannot deny." 8 Wheat. at 588.
79/ Tee-Hit-Ton Indians v. U.S., supra, n. 74, U.S. v.
Sioux Nation of
Indians, 448 U.S. 371, 415, n. 29, 100 S.Ct. 2716, 65
L.Ed. 2d 844, 875.
The Indian Claims Commission Act of 1946 25 U.S.C.
secs. 70 et seq.,
permitted recovery for loss of aboriginal title under
circumstances. Otoe & Missouria Tribe of Indians v.
U.S., 131 Ct. C1.
593, 131 F.Supp. 265 (1955). But the Indian Claims
Commission Act was
not the law of Hawaii in 1893.
80/ Tee-Hit-Ton Indians v. U.S., supra, n. 74, 348
U.S. at 288-290: ".
. .Indian occupancy, not specifically recognized as
ownership by action
authorized by Congress, may be extinguished by the
compensation. Every American schoolboy knows that the
savage tribes of
this continent were deprived of their ancestral ranges
by force and that
even when the Indians ceded millions of acres by
treaty in return for
blankets, food and trinkets, it was not a sale but the
that deprived them of this land."
81/ Tee Hit-Ton Indians v. U.S., supra n. 74, 348 U.S
Inupiat Community v. U.S., 680 F.2d 122; 128 (Ct. C1.
82/ Id. Sac & Fox Tribe of Indians of Oklahoma v.
U.S., 161 Ct. C1. 189,
197 (1963), cert. denied 375 U.S. 921 (1963).
83/ E.g., Fleming v. McCurtain, 215 U.S. 56, 54 L.Ed.
84/ NHSC Draft 234.
85/ NHSC Draft 234-235. The treaties covered only
navigation, commerce and tariffs. Id.
86/ 1 ENCYCLOPEDIA BRITANNICA 305 (1981) defines
"American Indians" as
"a group of human populations (local races and
microraces) of North
America and South America and the Caribbean islands."
This accords with
the anthropological definition. See e.g. A.M. JOSEPHY,
HERITAGE OF AMERICA,-10-29 (1968); P. FARE, MAN'S RISE
AS SHOWN BY THE INDIANS OF NORTH AMERICA FROM PRIMEVAL
TIMES TO THE
COMING OF THE INDUSTRIAL STATE, 235-273 (1968). The
Department's regulations for recognizing a group to be
an Indian tribe"
include the requirements that the group be within the
and descended from aboriginal inhabitants of the
continental U.S.; and
that it be recognized as an Indian entity by
and other scholars. 25 C.F.R. secs. 54.1, 54.3, 54.4,
54.7. In U.S. v.
Native Village of Unalakleet, 411 F.2d 1255, 1257 (Ct.
Clms. 1969) the
court defined "Indians” to include all "the
descendants of any
pre-Columbian inhabitants of North America.” Blondin,
supra n. 8 at 28
suggests that excluding Hawaiians from the class of
"Indians may violate
the Fourteenth Amendment's ban on racial
classifications. However, she
proposes a racial classification that would leave out
whites, blacks and
87/ For the anthropological definition of a tribe see
Farb, supra n. 86,
at 106-107. Notably, a tribe "is egalitarian; there
are still no
full-time specialists such as soldiers, artisans,
priests, or political
office-holders. . . . The tribe . . . possesses no
organization or permanent office of control . . . ."
Id. Compare 1
KUYKENDALL 7-10 (1938); D. MALO, HAWAIIAN ANTIQUITIES
(1898 ed.); M. Kelly, Changes in Land Tenure in Hawaii
27-49 (1956) (master's thesis in University of Hawaii
library), on the
far more complex and aristocratic, social and
political organization of
pre-contact Hawaii. The legal definition of a tribe is
set out in 25
C.F.R. secs. 54.1, 54.7. And see F. COHEN, HANDBOOK OF
LAW, 268-272 (1971 reprint of 1941 ed.).
88/ See e.g. Oni v. Meek, 2 Haw. 87 (1858)
Keeliokalani v. Robinson, 2
Haw. 522, aff'd 2 Haw. 540, 544-46 (1862); Principles
Adopted by the
Board of Commissioners to Quiet Land Titles in their
Claims Presented to Them, L. 1847, p. 81 reprinted at
2 R.L.H. (1925)
2124 and ratified and adopted as statute law, L. 1847
p. 94 reprinted at
2 R.L.H. (1925) 2137. CHINEN supra n. 19 at 15-21, 1
DAWS 124-128. All the real property cases in the first
eight volumes of
the Hawaii Reports make it clear that the
Anglo-American common law of
property was adopted as the property law of the
Hawaiian Kingdom. See
e.g., In the Matter of the Estate of His Majesty
Kamehameha IV, 2 Haw.
715 (1864) (adoption of common law rules of dower).
H.R.S. S 1-1
(adopted in 1892) made the English and American common
law the common
law of Hawaii except where it was contrary to the
Constitution or laws
of Hawaii, or Hawaiian precedent or usage.
89/ Blondin, supra n. 8 at 29-30; MacKenzie, supra n.
44 at 73-74, 81.
90/ LYDECKER, supra n. 25, at 9-10. There were no
legal limits on
Kamehameha I's power. Cf. Holmes, supra n. 23. Compare
the Hawaiian Republic Art. 95, LYDECKER at 222,
stating that the Crown
lands had always been Government lands and would
continue to be. Both
constitutional provisions seem to be instances of a
new regime trying to
buttress its authority by claiming to be only a
continuation of the old.
91/ LYDECKER at 10.
92/ See Constitution of 1852, set out at THURSTON 155
and LYDECKER 36,
which repealed and replaced the 1840 Constitution. See
266-268 (1938) for the history of the change of
constitutions. The 1852
Constitution was the only one of the four
constitutions of the Kingdom
which was approved by elected represen-tatives of the
people before its
93/ Levy, n. 34 at 854-855; Morris, The Land System of
Hawaii, 21 ABB.
JOURNAL 649, 650 (1935); NHSC Draft 229.
94/ Principles Adopted by the Board of Commissioners
to Quiet Land
Titles in Their Adjudication of Claims Presented to
Them, L.1847 p. 81,
reprinted at 2 R.L.H. (1925) 2124 and adopted as
statute law L.1847 p.
24, reprinted at 2 R.L.H. (1925) 2137. See CHINEN
supra n. 19 at 8-12.
97/ Id. An Act Confirming Certain Resolutions of the
King and Privy
Council, Passed on the 21st Day of December AD 1849,
Granting to the
Common People Alloidal Titles For their Own Lands and
House Lots and
Certain Other Privileges, L. 1850 p. 202, reprinted at
2 R.L.H. (1925)
2141; CHINEN supra n. 19 29-31 (native tenants
required to prove that
they actually cultivated the lands they claimed and
about 30,000 acres, less than 1% of the land in the
Islands went to
98/ The idea that as a result of the Mahele all the
lands of the Kingdom
were divided into three parts, one-third to the King,
one-third to the
chiefs and one-third to the commoners is "wholly
KUYKENDALL 282 (1938).
99/ See n. 88 supra.
100/ In the Matter of the Estate of His Majesty
Kamehameha IV, 2 Haw.
715, 722 (1864).
101/ MAHELE BOOK, translated by Court In the Matter of
the Estate of His
Majesty Kamehameha IV, 2 Haw 715, 723 (1864). Read
literally, this would
have made the chiefs and people the trustees for the
102/ Act of June 7, 1848.
104/ Id. and King's Mahele Grant.
105/ See cases cited in n. 55 supra.
106/ See statutes cited in n. 55 supra.
107/ See 3 SCOTT, THE LAW OF TRUSTS sec. 197-226 (3d
ed. 1967); Holmes
supra n. 23.
108/ See infra at . Most citizens could not vote.
109/ MacKenzie, supra n. 44, at 58, 81.
110/ Cherokee Nation v. Georgia, 5 Pet.1 (1831), Santa
Clara Pueblo v.
Martinez, 436 U.S. 49, 123, 98 S.Ct. 1670, 56 L.Ed. 2d
106, 123 (1978).
111/ Monty v. United States, 180 U.S. 261, 266, 21
S.Ct. 358, 45 L.Ed.
521, 523 (1901) (a "tribe" is a body of Indians of the
same or similar
race). Some tribes allowed white men who married
Indians to become
tribesmen, COHEN, supra n. 87 at 2-5.
112/ Naturalization of foreigners was provided for in
1884 Competed Laws
secs. 428-434 as amended by 1887 Sess. L. c. 10 and
1890 Sess. L. c. 24.
Voter qualifications are discussed below at ; being
was not required. Constitution of 1887, Articles 59
113/ But see MacKenzie, supra n. 44, at 81, apparently
the Hawaiian Government was both the "tribes and the
recognizing the tribe's title.
114/ Supra at 113.
115/ Supra at 114. Cf. Fleming v. McCurtain, 215 U.S.
56, 54 U.S. 88
(1909) (individual Indians could not inherit from a
116/ Bob Dylan, "Like a Rolling Stone."
117/ It is therefore unnecessary to discuss any of the
listed above at p. 108.
118/ The NHSC Draft at 236-239 and MacKenzie, supra n.
44 at 57-64
discusses this notion under the heading of "loss of
Government of Hawaii was the sovereign and remained
the sovereign until
its powers passed to the U.S. Government in 1898. The
real issue is who
had the political power to control the sovereign at a
119/ Constitution of 1887, Articles 31, 41, 48, 78;
Everett v. Baker, 7
Haw. 229 (1888), In re Right of the Sovereign to
Appoint a New Cabinet
on Taking the Throne, 8 Haw. 579 (1891), In re the
Signature of the
Sovereign to Amendments to the Constitution, 8 Haw.
606 (1892) (her
signature held unnecessary), Spaulding, Cabinet
Government in Hawaii
1887-1893, HAWAII UNIVERSITY OCCASIONAL PAPERS No. 2
120/ Id.; 1887 Constitution Articles 41, 78. In re
Responsibility of the
Cabinet, 8 Haw 566 (1890); In re Responsibility of the
Cabinet, 8 Haw.
572 (1890); Spaulding, Cabinet Government.
121/ Constitution of 1887 Article 41; In re Right of
Dismiss the Cabinet, 8 Haw. 578 (1891); In re Right of
the Sovereign to
Appoint a New Cabinet on Taking the Throne, 8 Haw. 579
(1891); Regina v.
Poor, 8 Haw. 521 (1892), Queen v. Costa, 8 Haw. 552
122/ Constitution of 1887 Article 41; cases cited in
n. 120; Spaulding,
123/ 3 KUYKENDALL 549; Spaulding, Cabinet Government
at 12. One Cabinet
lasted only a few hours. 3 KUYKENDALL 556-557.
124/ See supra at pp. 111-112.
125/ In 1890, Hawaiians and part-Hawaiians were 45.15%
population; by 1896 their share fell to 36.24%.
SCHMITT, supra n. 70. In
1893 they were presumably about 40% of the population.
126/ See discussion supra at 112.
127/ 3 KUYKENDALL 581, 187.
128/ LYDECKER 182.
129/ Constitution of 1887, Articles 56 and 61.
of all Hawaiians and part-Hawaiians were minors and
about half the
adults were women. THRUM'S HAWAIIAN ANNUAL FOR 1900,
at 39-40, citing
statistics from the 1896 census. The property
qualifi-cation to be a
Noble was the same as that required to vote for
Nobles: either owning
taxable property in the Kingdom of a net value of at
least $3,000.00 or
having an income of at least $600.00 per year.
Constitution of 1887
Articles 56 and 59. This property qualifica-tion
excluded about three
quarters of those otherwise eligible to vote. DAWS,
ATLAS OF HAWAII
26-27 (l970). Compare percentages of population voting
repre-sentatives with those voting for Nobles as given
in R. SCHMITT,
HISTORICAL STATISTICS OF HAWAII 597 (1977) and
Participation Rates in Hawaii Before 1900, 5 THE
HAWAIIAN JOURNAL OF
HISTORY 50 (1971), indicating about four times as many
people voted for
representatives as voted for Nobles. Representatives
had to own real
estate with a net value of at least $500.00 or have an
annual income of
at least $250.00. Constitution of 1887, Article 61.
130/ See 1890 census statistics reported in THRUM'S
HAWAIIAN ANNUAL FOR
1892 p. 16, showing that 23.5% of all Hawaiians were
in 1890. Constitutional limits on eligibility were set
out in the 1887
Constitution Articles 59 and 62. About two-thirds of
the Hawaiian and
part-Hawaiian population were excluded because of age
and/or sex. See n.
129 supra. Some men were apparently excluded because
of non-payment of
taxes or conviction of a felony but statistics on this
available. Some were also probably excluded because of
1890 census reported that 70% of all Hawaiians and
part Hawaiians were
literate. THRUM'S HAWAIIAN ANNUAL FOR 1892 at 14-15.
But the census
figures do not show how many otherwise eligible
Hawaiian men were
excluded because of illiteracy. The literacy
requirement was waived for
men born before 1840 and for men who voted in the 1887
131/ See n. 129 supra; Constitution of 1887, Articles
59, 62, and 73.
132/ See nn. 129, 130 supra; Constitution of 1887,
Articles 59, 62 and
133/ Constitution of 1887, Articles 22 and 41.
134/ 3 KUYKENDALL 453. In 1890 Hawaiian and
part-Hawaiian voters made up
70.3% of all registered voters. THRUM'S ANNUAL (1892)
n. 129, supra.
135/ Estimates drawn from 1890 and 1896 census figures
given in THRUM'S
HAWAIIAN ANNUAL (1892) and (1900) and SCHMITT,
HISTORICAL STATISTICS OF
HAWAII 21, 25; and Schmitt, Voter Participation Rates
in Hawaii Before
1900, n. 129, supra.
136/ 3 KUYKENDALL 453, population statistics estimated
given in sources cited in Nan. 129, 130 supra.
137/ Constitution of 1887, Articles 59 and 62. HA
question in the 1890
census revealed that Chinese and Japanese accounted
for 51.8% of all
males of voting age but none of the registered
voters." Schmitt, Voter
Participation in Hawaii before 1900, n. 129 supra, at
56, citing census
figures reprinted in THRUM’S ANNUAL (1892) at 16. Even
were Hawaiian citizens and who had been able to vote
before the 1887
Constitution was adopted were deprived of their voting
rights. Ahlo v.
Smith 8 Haw. 420 (1892).
138/ Constitution of 1887, Articles 59 and 62.
139/ Id. However the residency and literary
requirements did not apply
to persons residing in the Kingdom when the 1887
adopted if they registered to vote in the 1887
140/ Id.; Ahlo v. Smith, 8 Haw. 420 (1892)
141/ Constitution of 1887, Articles 59 and 62.
142/ Constitution of 1887, Article 73.
143/ Constitution of 1887, Article 62. Only cash
income counted, not the
value of board and lodging received by employees. In
the Matter of the
Qualifications of Voters for Nobles, 8 Haw 563 (1890).
excluded a major source of income for plantation
workers who typically
received low cash wages plus board and lodging.
144/ See n. 129 supra.
145/ See THRUM'S ALMANAC (1892) and (1900) nn. 129,
130 supra .
146/ See n. 137 supra.
147/ The literacy requirement cannot be justified by
the usual argument
that a person must be able to read and right the
language(s) in which
public business is conducted to be able to
intelligently cast his vote.
Public business in 1893 was conducted in English and
Hawaiian. A man
literate only in Albanian or Polish could vote while a
man literate only
in Chinese or Japanese could not.
148/ G. DAWS, SHOAL OF TIME 280-281 (1968), 3
KUYKENDALL 649. In the
Republic's only general election only 0.9% of the
population of Oahu
voted. SCHMITT, HISTORICAL STATISTICS n. 110 supra, p.
597. Most of the
voters were Caucasian. RUSS, THE HAWAIIAN REPUBLIC,
(1961). Since the Oahu population was more Caucasian
and probably richer
on the average than the populations on the Neighbor
Islands, the Oahu
figure probably overstates the figure for the Republic
as a whole.
149/ Organic Act sec. 60, reprinted in Vol. 1 of the
Haw. Rev. Stat. at
150/ Id.; U.S. Constitution, Nineteenth Amendment.
citizenship requirement excluded Oriental aliens as
well as Caucasian
151/ Or perhaps more than everyone else. Only persons
ancestry are eligible to vote for trustees of the
Office of Hawaiian
Affairs or to be OHA trustees, State Constitution
Article 12, S 5. The
question of whether this racial restriction on voting
and holding public
office violates the Fourteenth and Fifteenth
Amendments is beyond the
scope of this article.
152/ Those who think political power is hereditary
musts in addition to
giving reasons for that belief, face several other
questions, e.g.: How
is it decided how the political power descends to
people today? If many
living people are descended from one 1893 voter do
they split his claim?
On what terms? Or does only one of his heirs get it?
If one living
person is the only descendant of two 1893 voters does
he get twice as
much reparations? Do descendants of persons who could
vote for Nobles
get more than descendants of those who could vote only
Representatives? Do people descended from Cabinet
ministers, Nobles or
Representatives have a larger claim? Do persons with
ancestry get more? Do descendants of ali`i get more?
Do some people with
very little Hawaiian ancestry get nothing? Do the
non-Hawaiian royalists who lost power in 1893 get
anything? If not, why
that racial exclusion? What about someone descended
from a royalist and
a revolutionary? How can the right to vote be
evaluated in terms of cash
or land? How much was the right to vote for Nobles
worth? The right to
vote for Representatives? Should reparations for lost
power be reduced
by the value of the rights to vote in state and
federal elections? How
much are those rights worth? Since the author of this
that political power is not hereditary, he need not
questions. This is fortunate because he would not know
how to begin to
The above essay (c) Copyright Patrick Hanifin 2001, all rights reserved.
An informal version of this essay can be seen on this website at
Recently Mr. Hanifin also wrote a scholarly essay showing that all the people of Hawai'i today are the rightful inheritors of the Kingdom of Hawai'i, because the Kingdom had a law that all persons born in Hawai'i or naturalized into Hawai'i were subjects of the Kingdom with voting rights and property rights equal to the rights of the natives. That essay, with 243 footnotes including numerous legal citations, is on this website at
Mr. Hanifin also published an informal article in the Honolulu Advertiser newspaper of Sunday, April 8, 2001 responding to the usual diatribe of a sovereignty activist claiming that racially-defined Hawaiians are entitled to a "restoration" of a "nation." Mr. Hanifin points out that there are five different meanings of "nation" used interchangeably and incorrectly by sovereignty activists. See:
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