Lili'uokalani Loses A Big One

(c) Copyright 2000 Kenneth R. Conklin, Ph.D. All rights reserved

There is one and only one court case in which the ex-queen Lili'uokalani sued the United States for any reason. On November 20, 1909, nearly 17 years after the overthrow and more than 11 years after the annexation, she filed a lawsuit in which she tried to get money for the Crown Lands, claiming those lands rightfully belonged to her but were illegally confiscated by the Provisional Government, Republic of Hawai'i, and United States. The case was decided May 16, 1910 and has the legal citation: Liliuokalani v. United States, 45 Ct. Cl. 418 (1910)

BOTH THE EX-QUEEN’S COMPLAINT AND THE COURT’S DECISION ARE PROVIDED HERE AND ON WIKISOURCE.

The ex-queen lost the case. But in the process, many of the claims made today by the sovereignty activists were asserted by the ex-queen. After seeing all the evidence and hearing all the arguments on both sides, the Court of Claims became convinced that her claims had no merit. The decision itself is a valuable legal document. It is important not only because it contains these arguments concerning the Crown Lands, but also because of the very important appendices included by the Court as part of the evidence. Some of the material in these appendices is difficult or impossible to find anywhere else, and decisively refutes claims raised by today's sovereignty activists on issues other than the Crown Lands. It is also interesting that she never sued the United States in the Supreme Court for the "illegal overthrow" or the "illegal annexation" to try to reverse those events or be compensated for them; she sued only for money for "her" Crown Lands. The manner in which she lost lays out the evidence and the arguments for both sides in a direct confrontation between the ex-Queen and the United States. Such a direct legal confrontation at such a high level over "sovereignty" issues was never repeated for 90 years, until the Rice v. Cayetano case. The decision of the Court of Claims (like the Supreme Court decision in Rice v. Cayetano) is very clear and convincing.

First I shall list some of the questions to be answered here. Then I shall tell the history of the events leading up to this lawsuit, and offer an explanation of the answers to these questions, with references to the actual decision of the Court of Claims. Finally, the complete and unabridged official decision is provided for the first time on the internet, so that scholars can analyze it further. This valuable material is no longer hidden away in dusty archives.

LILIUOKALANI v. THE UNITED STATES. 45 Ct. Claims 418 (1910)

The above legal citation refers to the case in which ex-queen Lili'uokalani sued the United States in the U.S. Court of Claims in the year 1910. The case is reported in Court of Claims Volume 45, beginning on page 418. The report covers pages 418 through 440.

This case is extremely important in the history of Hawai'i; yet until the decision was published here on this website, it was completely unavailable on the internet, and could be found only in the archives of major law libraries such as the Hawai'i Supreme Court and the University of Hawai'i at Manoa. Hawaiian sovereignty activists, so aggressive about publicizing every small scrap of "evidence" favorable to their views and every bit of the ex-queen's writing or memorabilia, either do not know about this case, or keep it hidden.

Queen Lili'uokalani had been overthrown by the Committee of Safety and the Honolulu Rifles on January 17, 1893. Their objective was to get Hawai'i annexed to the United States, to provide political stability and economic growth. A temporary Provisional Government held power for 18 months, until it became clear that annexation to the United States would not happen during the administration of the ex-queen's friend President Grover Cleveland. The Provisional Government was then replaced by a more permanent Republic of Hawai'i, which had a Constitution and an elected legislature. In 1898, the Spanish American War provided the impetus for U.S. President William McKinley to be able to push through Congress a joint resolution of annexation, accepting the longstanding and recently renewed offer of the Republic to be annexed to the United States. The annexation was finally implemented through the Organic Act of 1900.

The Great Mahele of 1848 began a process whereby individuals could obtain private fee-simple ownership of land. In this process, large amounts of land were set aside in two categories of public ownership: Government Lands, to be held by the government for public facilities and income; and Crown Lands, to be held by the monarch to provide funds to support the monarch. At first it seemed that the Crown Lands were personally owned by the King, but as time went by various events made it clear that the Crown Lands belonged to the office of head of state rather than to the monarch personally. When the Queen was overthrown, there was no longer a monarch to be supported, and the Crown Lands became the property of the Provisional Government, and then the Republic. At the time of annexation, both the former Government Lands and the Crown Lands were ceded to the United States, subject to a condition that the U.S. must hold them in trust for the benefit of all the inhabitants of Hawai'i (rather than simply adding these lands to the land bank of the U.S.). At the time of statehood in 1959, the ceded lands were returned to the control of the State of Hawai'i, except for 328,414 acres retained by the U.S. for national parks, military bases, and other federal government uses.

In 1910 the ex-queen's lawsuit was decided in the U.S. Court of Claims, where she was seeking compensation for the Crown Lands. She claimed the Crown Lands rightfully had belonged to her, and that she was entitled to money in restitution for the confiscation of "her" land by the Provisional Government, the Republic, and then the United States.

She lost.

During the Kingdom of Hawai'i, who owned the crown lands?

At first it seemed that the monarch owned them personally (see pages 429-430 of the decision below, including portions of the language of the Great Mahele of 1848). The income was used to support the monarch. But when a King died, the lands themselves were always passed to the next monarch rather than to any personal heirs. The ownership of the Crown lands was settled by the Supreme Court of the Kingdom of Hawai'i in 1864, summarized by the U.S. Court of Claims in 1910 as follows: "It was determined in 1864, by a decision of the supreme court of Hawaii, that the crown lands formed an estate presumably vested in fee simple in the Crown as distinguished from the personality of the sovereign, and yet so limited as to possession and descent as to be abhorrent to an estate in fee simple absolute." (See Part I of the Court's own summary of its decision on page 419)

Later, in 1865-66, when the King had mortgaged the lands to provide money squandered on gambling and a lavish lifestyle, the legislature provided money to pay off the debts and further declared the Crown Lands to be inalienable (see pp. 431-433). A further difficulty arose when Claus Spreckels claimed to have ownership participation in the Crown Lands because he had purchased from Princess Ruth Keelikolani her (probably non-existent) rights to those lands. Princess Ruth's claims were doubtful both because her relationship to Kamehameha IV and V was unclear and also because the Crown lands probably were not the private property of the Kamehameha line. Nevertheless, Claus Spreckels, a powerful businessman, had paid money to the Princess for her interest in the Crown Lands, and the government of the Kingdom of Hawai'i wanted to avoid any cloud on the title of these lands. So in 1882 the legislature appropriated funds to purchase a quit-claim deed from Claus Spreckels, just in case there might be any validity to his claim (see pp. 433-434). Then, in 1890, the legislature further clarified the status of many large parcels of land as belonging to the Crown lands and also being the property of the government without any encumbrances (see p. 434).

That is why the Court of Claims in 1910 ruled that: "The Hawaiian statute of 1865 curtailed the title vested in the King to the purpose of maintaining the royal state and dignity; and the King approved the statute which divested the sovereign of whatever legal title he had theretofore had in the crown lands. After that the lands belonged to the office and not to the individual." (See Part II of the Court's own summary of its decision on page 419)

In parts I and II of its own summary of its decision, the Court of Claims based its decision primarily upon the laws of the Kingdom of Hawai'i, showing that by 1865 the Crown Lands did not belong to the monarch personally but to the office of head of state. This was true under the laws of the Kingdom, even before the overthrow and annexation.

It is also very interesting that the ex-queen was claiming that the crown lands had been her private property rather than the property of the race of kanaka maoli generally. Lili'uokalani's claim places her squarely in opposition to the assertion of modern-day sovereignty activists that the race of kanaka maoli are somehow the rightful owners of the ceded (crown) lands, or that they somehow have an undivided interest in them as "native tenants." On the ex-queen's theory put forward in this case, kanaka maoli individuals and kanaka maoli as a race have the same status as non-kanaka maoli: no rights at all to ownership of the crown lands or income from those lands.

Were the overthrow and annexation legitimate?

The Court of Claims took account of the ex-Queen's protest of January 17, 1893, immediately following the overthrow. Her entire document of surrender is included by the Court in an appendix to this decision, on page 435. Despite the ex-queen's words in the surrender, the Court clearly did not give any credence to the surrender as being only "temporary" or as being a surrender to the United States. On page 418 the Court's own summary states that in 1893 the Queen "yielded her authority by an instrument abdicating the throne." In Part III of the Court's own summary of its decision, it said: "When the office of King ceased to exist, the crown lands became like other lands, the property of the sovereignty, and on the annexation of the islands, passed to the United States as part of the public domain." (Page 419) The Court also notes on page 424 that if the ex-queen had no ownership or equitable life interest in the Crown Lands, then "it is conceded that the absence of such an interest rendered the crown lands subject to the usual transmission of title appurtenant to a change of sovereignty." Thus the Court is affirming that indeed there was such a change of sovereignty.

On pages 423 and 424 the ex-queen in 1910 tangentially raised the issue of the alleged illegality of the Overthrow, the Provisional Government, the Republic of Hawai'i, the Annexation, and the Organic Act by arguing that her right to the Crown Lands was only temporarily suspended by those governments (not permanently extinguished as would be the case if the government was legitimate) because of provisions in the Constitution of the Republic of Hawai'i that made it impossible for the courts to consider her claims. But on page 428, the Court in its official decision quotes from the Constitution of the Republic of Hawai'i in a manner showing that the Court recognizes the authority of that Constitution in establishing that the Crown Lands are the unencumbered property of the Republic of Hawai'i.

On page 420 the ex-queen compared the annexation of Hawai'i with the annexation of the Panama Canal Zone, stating that "In both cases there was a domestic revolution, and the revolutionary government turned over to the United States the sovereignty desired." On page 421 the ex-queen tried to argue that it is not up to the courts to decide whether the annexations were legitimate or whether the U.S. was primarily responsible for the domestic revolutions that made the annexations possible. She states, incorrectly, that "They are matters for the executive branch of the Government, and the judiciary can only accept the political status as determined by the executive." She would have preferred, of course, to rely upon Grover Cleveland's assessment of the overthrow as recorded in his message to Congress. However, the U.S. courts have always had the right to overturn executive actions because of satute law or the provisions of the Constitution, as established by the Marbury vs. Madison decision more than 100 years before the present case. And the ex-queen conveniently forgot that the U.S. Congress acknowledged the legitimacy of the overthrow as documented in its Morgan Report, and the Congress passed the joint resolution of Annexation in 1898 and the Organic Act of 1900. On pages 428 and 429, the Court cites language from the Constitution of the Republic of Hawai'i, and from the Organic Act of 1900, thereby acknowledging their legitimacy. Finally, on page 429, the Court of Claims gave premission to the ex-queen to appeal the decision to the Supreme Court. But she acquiesced in the decision and never appealed it.

Sovereignty activists say the annexation never happened because it was not done by treaty but only by joint resolution. They say that a joint resolution of the U.S. Congress cannot extend beyond the borders of the U.S., which of course is obviously true if the only issues are laws to govern people's conduct in relations with each other. For example, the U.S. Congress has no power to tell the people of China that cigarettes must have less than a certain level of tar and nicotine, or that February 21 shall be celebrated as a Presidents' Day holiday. However, a joint resolution certainly can determine how the United States in and of itself chooses to respond to something happening abroad. And if a foreign nation offers itself for annexation, it is up to the United States to use whatever means it chooses to make its own decision how to respond to such an offer. There are no international laws forcing any nation to use any particular method for ratifying its own decisions.

It is an internal matter for the United States to decide by what method it will accept an offer of annexation. The U.S. Constitution nowhere states that annexation can be accomplished only by treaty. Texas had been annexed by joint resolution almost 50 years previously, establishing the precedent; and other territories such as the Louisiana Purchase and Alaska had been acquired through purchase from France and Russia. Sovereignty activists assert that Texas had been annexed directly as a State, whereas Hawai'i was being annexed only as a Territory. But clearly, if Congress can set a precedent in the case of Texas by using joint resolution to annex something so important as a State, then Congress can also establish a precedent in the case of Hawai'i by using joint resolution to annex the a less important entity of a Territory.

Regarding the sovereignty activists' claim that Texas had been annexed directly as a State: that claim, like so many others, is a distortion of history which leaves out important facts. The first thing that happened was a Joint Resolution annexing Texas. About a year and a half later, there was a separate Admission Act that made Texas a state. In between the two Congressional actions, the Mexican American War broke out because Mexico still claimed Texas was a rebellious province of Mexico and objected to the US annexing "Mexican" territory. For that matter, Spain still claimed that Mexico, including Texas, was still a rebellious province of the Spanish Empire. This illustrates the point that as far as American law is concerned, Congress can annex any land it pleases to the US, although as a practical matter it needs to be prepared for war if some other country stakes an overlapping claim. Texas became part of the US when it accepted the terms of the Annexation Resolution, not when Mexico gave up its claim to Texas after losing the war. The key documents re Texas Annexation are on the Web as part of the Avalon Project at Yale: yale.edu/lawweb/avalon/texmenu.htm In Texas v. White, after the Civil War, the US Supreme Court confirmed the principle established by the Union's victory: as a result of annexation and admission to the Union Texas was a state and states can't quit.

Must the inhabitants of a territory be consulted, prior to being annexed? In the annexations of the Louisiana Territory and the Territory of Alaska, the inhabitants were not consulted by France or Russia (who sold those territories to the U.S.) nor by the U.S. There were only two times when annexations of land to the United States included consulting the inhabitants of the annexed areas: Texas and Hawai'i. The reason why the inhabitants were consulted in these two cases was that these were independent nations prior to annexation. In the case of Texas, there was a plebiscite in which the vote was limited to white males who had sworn loyalty to the Republic of Texas. In the case of Hawai'i, the elected legislature of the Republic of Hawai'i made the commitment.

The powerful Senators, States, and even kanaka maoli or the ex-queen who had successfully opposed the earlier treaty of annexation had every opportunity to file a suit in the U.S. Supreme Court to oppose or undo annexation by joint resolution, but they never did so. The joint resolution of annexation required only a simple majority in both houses of Congress, but it actually passed by 2/3 (42-21) in the Senate and by more than 2/3 (209-91) in the House, partly because sentiments had changed due to the Spanish American War, and Grover Cleveland's failure to win re-election. So, in the final analysis, 2/3 of the Senate ( and more than 2/3 of the House) did vote for the document of annexation, as would be required for a treaty, even if it was now called by a different name. In modern times, it is now well-established in constitutional law that an international agreement can be approved and become binding on the US by a majority vote of both houses of Congress [ Restatement (3d) of the Foreign Relations Law of the US sec. 303 ]. Literally hundreds of international agreements have been done this way in the 20th century, and the Supreme Court repeatedly has held that the method is valid.

Was the ex-queen (or by inference the kanaka maoli people) entitled to compensation for the loss of "her" "stolen" lands?

The answer is very clearly no, and for two reasons: the Crown Lands were not the property of the Queen (let alone the kanaka maoli people); and the lands were not stolen.

The fact that the Crown Lands did not belong to the monarch personally has already been clearly established. Part II of the Court's own summary of its decision, on page 419, clearly states: "The Hawaiian statute of 1865 curtailed the title vested in the King to the purpose of maintaining the royal state and dignity; and the King approved the statute which divested the sovereign of whatever legal title he had theretofore had in the crown lands. After that the lands belonged to the office and not to the individual." The reasoning is explained above.

The fact that the lands were not stolen is documented by the chain of custody of the Crown Lands, recognized as legitimate by the decision of the Court in this case. The Court recognizes that the Crown Lands became the property of the office of sovereignty through a series of acts of the legislature of the Kingdom of Hawai'i agreed to by the King himself. The Court also recognizes the passing of title through the Provisional Government to The Republic (an excerpt from the Constitution of the Republic is included in the Court's own decision, bottom of page 428), and then to the United States by means of the Republic's offer to be annexed and the U.S. joint resolution of acceptance of that offer (both documents contained in the Court's own appendices).

Were the ceded lands taken without compensation?

The sovereignty activists are fond of burying false and misleading historical or legal statements inside legislation. The activists then claim that since these buried statements were passed by Congress or the legislature of Hawai'i, therefore these statements are law. That political technique has been well-documented in the section of this website dealing with the S1929 federal healthcare bill providing a racial entitlement for kanaka maoli. Another example of false statements can be found in the so-called "Apology" bill, and its amazingly blatant falsity can be shown in the documentation in the appendices of the 1910 Crown Lands case. (Thanks to Bill Burgess for the details that follow. His website, focusing on the ceded lands, can be seen at http://aloha4all.org )

The Apology bill, P.L. 103-150 (1993), says, in one of its "whereas" clauses, that "the Republic of Hawaii also ceded [to the United States] 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people or their sovereign government."

However, in the Annexation Act, under which the crown, government and public lands of the Kingdom were ceded, the United States assumed the public debt of the Republic of Hawaii up to $4 million (See page 439). The bonded debt of the Republic at the time of annexation in 1898 was $3,785,500. The public debt of the Kingdom at the time of the overthrow in January 1893 was $3,417,459.87 [ Reports of the Minister of Finance, 1894 and 1898 ].

Assumption of another's debt is a form of compensation. For example, it is common in land sales for the buyer to pay the purchase price partially in cash and partially by assuming a mortgage of the seller. Another example is the Internal Revenue code which treats an assumption of debt as income to the person whose debt is assumed.

Between 1850 and 1890 pasture lands sold for an average of 25 cents an acre while good taro land brought five dollars an acre [ Hawaiian Culture, The Land & the People p. 263 ]. In 1865 Kamehameha IV sold the entire Island of Niihau to the Sinclair brothers for $10,000, an average of less than 25 cents per acre. In 1877 James Campbell bought 41,000 acres at Honouliuli (Ewa, O'ahu) for $95,000, an average of $2.31 per acre. Land values were probably much lower than that. For example, Bernice Pauahi Bishop's estate, which included about 400,000 acres (including some extremely valuable lands, and totaling about ten percent of all the land of the Hawaiian islands), was valued at about $300,000 during the probate of her will a year or two following her death in 1884. That would set a valuation of about 75 cents per acre. Vast acreage of the government and crown lands was mountainous and desert lands unusable for pasture. Assuming an average value of $1.50 per acre the total value of the about 1.8 million acres ceded would be $2.7 million.

Thus, even if the ceded lands had been transferred outright to the United States, the Kingdom of Hawaii received compensation (by way of assumption of its public debt) considerably greater than the value of those lands.

However, the lands were not ceded outright. The Annexation Act required that the U.S. use the revenues and proceeds of the ceded lands, "except as regards such part thereof as may be used or occupied for the civil, military or naval purposes of the United States ... solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." (page 439) At that time about 26% of the inhabitants of the Hawaiian Islands were of native ancestry. The U.S. in 1900 turned over to the Territory of Hawaii the possession and control of over 1.4 million acres of the ceded lands. Those lands have remained in the possession, use and control of the government of Hawaii for the benefit of the citizens of Hawaii of all ancestries, (except for the about 200,000 acres reserved exclusively for 50% Hawaiians in the Hawaiian Homes Commission Act) continuously to the present.

Of the 328,414 acres retained by the U.S., 244,890 are National parks (available for the enjoyment of the public including those of Hawaiian ancestry), leaving 83,524 acres for the use of the Federal government [ Ronck's Hawaii Almanac ]. 28,800 acres of that, the island of Kahoolawe, is being transferred to the State.

Thus, the claim that the crown, government and public lands of Hawaii were ceded to the United States "without compensation to the Native Hawaiian people or their sovereign government" is false. The United States compensated the Republic of Hawai'i and its people (including kanaka maoli) by assuming their public debts, including the debts incurred under the Kingdom for the issuance of bonds to redeem all encumbrances on the Crown lands incurred by various monarchs to support their lavish lifestyles, as noted on pages 431-434.

Was there a valid offer of annexation from the Republic of Hawai'i, and a valid acceptance from the United States, with both sides agreeing on identical language?

The entire offer from the Republic of Hawai'i of a treaty to be annexed is contained on pages 435-438. The entire Newlands Resolution; i.e., the joint resolution of Congress accepting the offer of annexation; is contained on pages 438-440. Close comparison of the language in the two documents confirms that most of the language is identical, although occasionally the order of the paragraphs may be different. The language at the beginning or end may be different between the two documents because one is offering and the other is accepting, or the acceptance includes language for administrative procedures or funds to implement the annexation.

What is the status of treaties between the Kingdom of Hawai'i and other nations, including the United States?

Sovereignty activists like to say that the treaties between the Kingdom of Hawai'i and foreign nations still exist and still have force of law. They believe that the treaties between the Kingdom and the U.S. are also still alive. If the overthrow had never happened, such would be the case.

However, the overthrow did happen. All the nations with consulates in Honolulu recognized the new Provisional Government within two days following the overthrow. Recognition includes a mutual agreement that existing treaties will continue in force until changed, and it also includes a recognition that the new sovereignty replaces the previous one as the agent with whom to negotiate.

The annexation also really happened, as a previous section of this essay confirms. When one nation is annexed by another, it is common sense as well as international law that all treaties between the annexed nation (Hawai'i) and other nations are automatically subsumed under the authority of the annexing nation (the United States) or else abrogated, and henceforth foreign relations are conducted through the annexing nation (United States).

Article III of the Republic's offer of annexation, dealing with treaties with foreign nations (pages 436-437), is completely identical with the language in the U.S. acceptance (page 439) except that where the Republic refers to its offer of a "treaty" of annexation, the U.S. notes a "joint resolution" of acceptance. The identical wording establishes the common-sense disposition of treaties as described above. Here is the wording:

"The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations. The municipal legislation of the Hawaiian Islands, not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine."

The language is also identical between the two documents dealing with the commercial relations between (the former Kingdom of) Hawai'i and the U.S. and foreign nations (still page 439):

"Until legislation shall be enacted extending the United States customs laws and regulations to the Hawaiian Islands the existing customs relations of the Hawaiian Islands with the United States and other countries shall remain unchanged."

The bottom line is that all treaties between the Kingdom of Hawai'i and other nations, including the United States, are forever extinguished for two reasons: (1) As a result of the overthrow of the monarchy, the new Republic government took control of and continued to enforce the treaties of the Kingdom, unless such treaties were changed by the Republic of Hawai'i through negotiation with the other nations involved; and (2) As a result of the annexation, all treaties of the Republic of Hawai'i (and therefore of the Kingdom whose treaties were assumed by the Republic) were either abrogated or became the responsibility of the United States to administer, in accord with the provisions of the agreement of annexation.