There is no treaty annexing the Hawaiian Islands

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://blog.hawaii.edu/aplpj/files/2015/09/APLPJ_16_2_Chang.pdf

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

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