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Dialog: Leon Siu vs. Ken Conklin regarding the U.S. Supreme Court ceded lands lawsuit


The Hawaii Supreme Court ruled that the State cannot sell ceded lands without permission from ethnic Hawaiians; but the State appealed to the U.S. Supreme Court. On Wednesday October 1, 2008 the U.S. Supreme Court granted certiorari (i.e., it agrees to hear the case). This lawsuit is very important to Hawaii. It also has nationwide significance, as evidenced by the fact that the attorneys general of 29 other states submitted an amicus brief supporting the State of Hawaii's petition.

A webpage has assembled many of the legal documents, news reports, and commentaries about this lawsuit; including the state Supreme Court's decision, the state petition for certiorari, the brief in opposition to certiorari by OHA, the amicus briefs in favor of certiorari by the attorneys general of 29 states and by the Pacific Legal Foundation. The compilation of news, commentary, and legal documents will continue on this webpage going forward. See
http://tinyurl.com/4yjfnn

On October 13, 2008 Leon Siu published an article in Hawaii Reporter online newspaper describing the significance of the ceded lands lawsuit. On October 14 Ken Conklin published a response with a very different analysis and conclusion.

Leon Siu describes himself this way: "Leon Siu is the Minister of Foreign Affairs for Ke Aupuni O Hawaii, the Hawaiian Kingdom, and has served in that capacity since 2000. Prior to that, he served as the Deputy Minister of Foreign Affairs for four years.

Ken Conklin is a retired professor with a Ph.D. in Philosophy, maintains a large website on the subject of Hawaiian sovereignty, and has published a book entitled "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State." His webpage describing himself is at:
http://tinyurl.com/5c8xcy

Leon Siu and Ken Conklin disagree with the State of Hawaii regarding the significance of the U.S. apology resolution of 1959, in which the U.S. apologized to "Native Hawaiians" for overthrowing the Kingdom of Hawaii, and the U.S. says that "Native Hawaiians" never relinquished their claims to their native lands. Siu and Conklin agree with each other that the apology resolution was badly mistaken in singling out the racial group "Native Hawaiians" as the only people to whom the apology is directed. Siu and Conklin agree that the Kingdom of Hawaii was multiracial. However, Siu claims that the apology resolution is a confession of a crime by the U.S. against the Kingdom of Hawaii, and that the remedy would be the return of sovereignty to an independent nation of Hawaii. Siu claims that the ceded lands belong to that nation of Hawaii. Conklin claims that the revolution of 1893 was legitimate, and that the successor government, the Republic of Hawaii, was internationally recognized as legitimate. Conklin claims that the Republic was the rightful owner of the ceded lands, and had the authority to cede them to the U.S.. Conklin concludes that today the ceded lands are owned by all the people of Hawaii without racial distinction, under the sovereignty of the United States and State of Hawaii. Thus the State has the right to sell the ceded lands.

Below is a "dialog" consisting of the full text of Leon Siu's article of October 13, 2008 and Ken Conklin's response of October 14.

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http://www.hawaiireporter.com/story.aspx?cc9baa81-0f7d-4138-9d6d-a81aa66b69e2
Hawaii Reporter, October 13, 2008

Land, Power and Money at Stake in Hawaii's Ceded Land Case Now Before the U.S. Supreme Court

By Leon Siu

The US Supreme Court justices announced recently that they have accepted the writ of certiorari filed by the State of Hawaii seeking to reverse the Hawaii State Supreme Court’s decision of January 31, 2008, that curtails the State’s ability to sell or otherwise dispense, what is commonly referred to as “the Ceded Lands.” The acceptance of the “cert” means that the US Supreme Court will review the submitted arguments and render its decision.

The State of Hawaii is counting on a favorable ruling from the U.S. Supreme Court. At stake is the very survival of the 50th State of the union.

The land in question is the 1.8 million acres (nearly half the total land area of the Hawaiian Archipelago) that was hijacked from the government and the crown heads of the Hawaiian Kingdom in 1894 by the illegal, self-declared, rebel government, the Republic of Hawaii. A few years later, in 1898, the Republic of Hawaii “annexed” itself to the United States, and in the process, passed off (“ceded”) the stolen lands to the U.S. The puppet government, the State of Hawaii, is now holding the bag of stolen property deceptively called the “Ceded Lands.”

The salient point is, the Republic of Hawaii did not have lawful title (or rights) to these lands when they were handed over (“ceded”) to the U.S. Thus, no lands lawfully transferred. Although this act of “cession” was clearly unlawful, any objections were summarily ignored, overruled or dispatched by the bully power of the U.S. In 1959, the U.S. magnanimously passed on the stolen property (the “Ceded Lands”) as the land base for the newly created puppet government called the State of Hawaii.

The Apology Law

The January 31, 2008 Hawaii State Supreme Court’s decision surprised everyone. It was the first time that a state court acknowledged that United States Public Law 103-150 (commonly called “The Apology Law,” passed by the U.S. Congress and signed by President Clinton in 1993) carries the force of law. Until this decision in January, all previous efforts by Hawaiian Kingdom nationals to invoke USPL 103-150 in state and federal courts in Hawaii had been summarily rejected by those courts.

In essence, the State Supreme Court’s decision says that the State’s ownership of the “ceded lands” is questionable because the Apology Law clearly indicates that these lands were improperly acquired. The court thus concluded that until the State of Hawaii settles this ownership question with the “native Hawaiians” the State cannot sell or otherwise transfer any portion of those “ceded lands.” In its ruling, the court parrots the prevailing assumption that “native Hawaiians” are the default claimants to the lands.

The Rightful Claimants

While it is true the State of Hawaii does not own the “ceded lands” neither do the so-called “native Hawaiians.”

By citing “native Hawaiians” as the default claimants to the “ceded lands” the State Supreme Court perpetuates a critical error, ignoring the historical and lawful fact that the lands in question belong to the Hawaiian Kingdom, not the “native Hawaiians.”

This mis-direction is employed to avoid addressing the actual crime — the theft of the national autonomy and the national lands of the Hawaiian Kingdom. It also avoids the rightful remedy — the return of the national autonomy and national lands to the Hawaiian Kingdom.

The rightful owners of the land are the parties from whom they were stolen: the crown (ruling monarch) and the government of the Hawaiian Kingdom. The monarch and the national government hold these lands in trust to benefit the people of Hawaii.

Misdirection

By projecting the “native Hawaiian” as the injured party, the State Supreme Court follows the lead of the Apology Law and deliberately misdirects the issue, framing it as a mere domestic problem rather than a significant international violation.

When the United States landed armed troops to support the 1893 seizure of the Hawaiian Kingdom by insurrectionists, the U.S. brazenly violated the sovereignty of the Hawaiian Kingdom, a peaceful nation with close, friendly, treaty-guaranteed relations to the U.S. There were no complaints, no disputes and certainly no hostilities to justify the invasive action by the U.S.

Aside from acknowledging the unlawfulness of the violation, the U.S. did nothing to rectify the situation. Instead, in 1898, the initial violation of Hawaii’s sovereignty was shockingly amplified when the U.S. commenced its hostile occupation with the fraudulent “annexation.” Today, the State of Hawaii perpetuates the fraud in order to cover up its inherent illegitimacy as a puppet government installed under the illegal occupation of the U.S.

This “ceded lands” case represents a desperate effort by the State of Hawaii and the U.S. to overcome the problem caused by the illegal “annexation” and the lack of clear title to the so-called “ceeded lands” — officially implicated in the Apology Law as lands having been stolen from the Hawaiian Kingdom.

What’s at stake for the State?

The State of Hawaii is counting on the U.S. Supreme Court to:

(1) ignore the fact that the lands claimed by the State is actually stolen property and

(2) somehow remove the cloud over the State’s claim to these lands.

The State’s primary obstacle is the Apology Law. Thus, to overcome this obstacle, the State of Hawaii is seeking to have the U.S. Supreme Court dismiss or otherwise invalidate the Apology Law; to render it as a noble sentiment, but having no force of law.

Failure to convince the U.S. Supreme Court to nullify the Apology Law would destroy the very basis of the existence of the State of Hawaii. If the Hawaii Supreme Court ruling is upheld, it implies the State of Hawaii has no land! No land, no State.

Furthermore, the Apology Law’s implication that the State of Hawaii has no land, also indicates that the State of Hawaii has no lawful standing as a political entity. This is because the same set of events, circumstances and illegal actions that produced the “ceded lands” fraud, also implicates the various puppet governments from the Republic of Hawaii to the State of Hawaii as frauds. Since they all stemmed from the same illegal acts, they are all unlawful frauds.

Therefore, the default owner and the default governing authority is the one that was in place before the unlawful actions started, January 16, 1893. The lawful default government is the Hawaiian Kingdom.

Other ramifications

Not only is the very existence of the State of Hawaii at stake, this landmark case portends dire ramifications for any lands “acquired” from Native Americans all across the U.S. Seeing the potential danger, twenty-nine other states have filed friend-of-the-court briefs supporting the State of Hawaii in its effort to strike down the Apology Law.

These states rightfully fear that if the Apology Law is not overturned, much of their lands would be placed in serious jeopardy, especially those gained from the Native American through broken treaties, deception and theft.

Either way it goes, the outcome of this case will generate tremendous repercussions throughout the United States.

Perhaps this would be a good opportunity for the U.S. State Department to begin negotiating with officials of the Hawaiian Kingdom for a peaceful transitional process to restore Hawaii as an independent nation.

Leon Siu is the Minister of Foreign Affairs for Ke Aupuni O Hawaii, the Hawaiian Kingdom, and has served in that capacity since 2000. Prior to that, he served as the Deputy Minister of Foreign Affairs for four years.

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http://www.hawaiireporter.com/story.aspx?db15d2a5-bb39-4568-b0fa-b1cac74d80d5
Hawaii Reporter, October 14, 2008

Ceded Lands Supreme Court Case
What is this case about? How does the apology resolution of 1993 factor in? Who rightfully owns Hawaii's ceded lands?

By Kenneth R. Conklin, Ph.D.

(1) WHAT IS THIS CASE ABOUT ?

On Wednesday October 1, 2008 the U.S. Supreme Court granted certiorari (i.e., it agrees to hear the case) in a lawsuit that is very important to Hawaii. It also has nationwide significance, as evidenced by the fact that the attorneys general of 29 other states submitted an amicus brief supporting the State of Hawaii's petition.

In January the Supreme Court of the State of Hawaii issued a 5-0 ruling prohibiting the State from selling any of the ceded lands (nearly all the State's public lands are in that category) "until such time as the unrelinquished claims of the native Hawaiians have been resolved." The ruling explicitly and repeatedly placed heavy reliance on the U.S. apology resolution of 1993.

The State's petition for certiorari frames the issue this way for the U.S. Supreme Court:

"In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States' role in that overthrow. The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land -- 29 percent of the total land area of the State and almost all the land owned by the State -- unless and until it reaches a political settlement with native Hawaiians about the status of that land."

The State's way of phrasing the question tiptoes around a very delicate conflict of interest which has plagued Hawaii's Attorneys General ever since 1978 when OHA was created. On one hand the State is obligated to defend its plethora of racially exclusionary programs for ethnic Hawaiians, including the Office of Hawaiian Affairs; and the State vigorously supports the racially exclusionary admissions policy of Kamehameha Schools and zealously pushes for the Akaka bill. On the other hand the State wants to defend itself against OHA in this case and in other cases regarding disputed claims for ceded land revenues.

The Pacific Legal Foundation in its amicus brief phrased the (2) question(s) more accurately and more broadly, as follows:

"1. Whether Congress by the Admission Act and the Apology Resolution, may, without violating the Fifth Amendment, require or permit the State of Hawaii, Trustee of the Federally-created Ceded Lands Trust, to discriminate between trust beneficiaries on the basis of race?

"2. Whether the State of Hawaii, Trustee of the Ceded Lands Trust, may, without violating the Fourteenth Amendment, discriminate between trust beneficiaries on the basis of race?"

Let's hope the U.S. Supreme Court will use the PLF formulation of the issues, and will take this opportunity to put an end to government-approved racial discrimination in allocating government lands and moneys to one racial group to the exclusion of others.

A webpage has assembled many of the legal documents, news reports, and commentaries about this lawsuit; including the state Supreme Court's decision, the state petition for certiorari, the brief in opposition to certiorari by OHA, the amicus briefs in favor of certiorari by the attorneys general of 29 states and by the Pacific Legal Foundation. The compilation of news, commentary, and legal documents will continue on this webpage going forward. See
http://tinyurl.com/49sx9j

(2) HOW DOES THE APOLOGY RESOLUTION OF 1993 FACTOR IN ?

The Hawaii Supreme Court ruling relied heavily on the apology resolution of 1993 in which the U.S. apologized to ethnic Hawaiians for sending peacekeepers ashore in January 1893 during the revolution which overthrew the Hawaiian monarchy. The apology resolution blames the U.S. for instigating the revolution, and says the revolution could not have succeeded without the help of the U.S.

The resolution, written by Hawaiian sovereignty activists, is filled with falsehoods and distortions of history, some of which are convincingly refuted by nationally famous Constitutional law attorney Bruce Fein in his 45 page monograph "Hawaii Divided Against Itself Cannot Stand" at
http://tinyurl.com/7d6xq
The apology resolution is also refuted by Thurston Twigg-Smith's entire famous book "Hawaiian Sovereignty: Do the Facts Matter," especially Chapter 10.

What exactly does the apology resolution say about the ceded lands? It says that during the revolution, and the annexation to the U.S. five years later, "the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum" and therefore the U.S. "expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people."

(3) WHO RIGHTFULLY OWNS HAWAII'S CEDED LANDS ?

A general explanation of what the ceded lands are and why there should be no racial allocation of the lands themselves or the revenues they generate can be found at
http://tinyurl.com/356xy

Hawaiian sovereignty activists proclaim that the apology resolution is a confession of a crime under international law. They say that by means of the apology the U.S. admits it illegally overthrew the Hawaiian Kingdom. They say that since the 1890s Hawaii has been under a belligerent military occupation by the U.S. They say that under international law the U.S. is required to withdraw from Hawaii, and pay huge reparations. Therefore, they say, not only the ceded lands but all the lands of Hawaii belong to ethnic Hawaiians (or else belong to today's descendants of Hawaiian Kingdom subjects).

The Hawaii Supreme Court says that the apology resolution clouds the title to Hawaii's public lands, and therefore the State of Hawaii is prohibited from selling any ceded lands until such time as the claims of ethnic Hawaiians have been settled. Also, after OHA was created in 1978, the Legislature passed a law permanently giving OHA 20% of ceded land revenues from that time forward; so OHA asserts that it has standing to prevent the sale of ceded lands on the grounds that such sales would diminish its future income. Some sovereignty activists, including some OHA trustees and bureaucrats, claim that ethnic Hawaiians as a racial group collectively own all the ceded lands.

In a thoughtful essay published in Hawaii Reporter on October 13, 2008, Leon Siu correctly points out that the Kingdom of Hawaii was multiracial and therefore the apology resolution is misdirected in being addressed solely to ethnic Hawaiians. See
http://tinyurl.com/4mfq7r

The essay's tagline describes Mr. Siu this way: "Leon Siu is the Minister of Foreign Affairs for Ke Aupuni O Hawaii, the Hawaiian Kingdom, and has served in that capacity since 2000. Prior to that, he served as the Deputy Minister of Foreign Affairs for four years."

Not surprisingly, Siu concludes that the effect of the apology resolution should not be to give money and land to the racial group of ethnic Hawaiians under the sovereign authority of the U.S., but rather to restore the sovereign independence of the multiracial nation of Hawaii.

Where Mr. Siu goes wrong is his claim that "The land in question is the 1.8 million acres (nearly half the total land area of the Hawaiian Archipelago) that was hijacked from the government and the crown heads of the Hawaiian Kingdom in 1894 by the illegal, self-declared, rebel government, the Republic of Hawaii. A few years later, in 1898, the Republic of Hawaii “annexed” itself to the United States, and in the process, passed off (“ceded”) the stolen lands to the U.S. The puppet government, the State of Hawaii, is now holding the bag of stolen property deceptively called the “Ceded Lands.” The salient point is, the Republic of Hawaii did not have lawful title (or rights) to these lands when they were handed over (“ceded”) to the U.S. Thus, no lands lawfully transferred."

The truth is this. The revolution of January 17, 1893 was real. The monarchial form of government was replaced by a temporary Provisional Government, which was immediately given temporary, de facto recognition by all the governments of the world who had local consuls in Honolulu. By April 1, 1893, the few remaining U.S. peacekeepers had all returned to their ship and there was no U.S. military presence. The Provisional Government stood on its own despite a hostile U.S. President Grover Cleveland, who made every effort to destabilize it and to put the ex-queen back on the throne. There was not any U.S. puppet regime.

In July, 1894 the permanent successor government was created, the Republic of Hawaii. During the remainder of that year the Republic received permanent diplomatic recognition de jure as the rightful government of Hawaii. Letters of de jure recognition were personally signed by emperors, kings, queens and presidents of at least 20 nations on four continents in 11 languages. Photographs of the originals, plus Liliu'okalani's letter of abdication and loyalty oath to the Republic from January 1895, are at
http://www.angelfire.com/big11a/RepublicLettersRecog.html

A webpage explaining the significance of these letters is at
http://tinyurl.com/2pxqgz

Hawaiian sovereignty zealots will claim that the letters recognizing the Republic were merely attempts to curry favor with the U.S., or to solidify exploitative relationships by foreign businessmen who owned land and buildings in Hawaii. However, those same sovereignty zealots claim the Kingdom of Hawaii had international recognition as an independent nation precisely because the Kingdom had enjoyed the same kind of diplomatic recognition which the successor Republic received.

If foreign recognition established the independence of Hawaii as a member of the family of nations, then recognition also established the Republic as the legitimate successor government of the still-independent nation of Hawaii. That independent nation remained independent for four more years, standing alone without being anybody's puppet regime, even withstanding an attempted violent counter-revolution.

Sovereignty zealots like Leon Siu want to stop the clock in 1893. But the plain fact is that governments change from time to time in all nations throughout the world. Some governments change peacefully; some through revolution. Changes of government are given legitimacy under international law precisely because the successor government receives full diplomatic recognition de jure, exactly as happened with the Republic of Hawaii.

Just imagine today's descendants of the Russian Tsar or the French Kings claiming that they remain the rightful rulers because their ancestors once upon a time had international recognition. Imagine that on January 21, 2009 George W. Bush refuses to vacate the White House because he once was the recognized leader of the U.S.

The letters of de jure recognition are especially compelling because some of them were sent by Kings, Queens, and Emperors who themselves were worried about revolutions which might unseat them; yet they recognized the Republic of Hawaii and used the word "friend" to greet President Dole who had ousted the Queen. Even Queen Victoria addressed President Dole as "friend", despite the fact that Victoria had been a personal friend of Lili'uokalani and of Queen Emma, and had been godmother to Emma's baby Prince Albert.

Some revolutions are accomplished with outside assistance. For example, the American revolution could never have succeeded without the help of French and Polish generals (for example, Lafayette and Pulaski) leading tens of thousands of troops, and dozens of warships, and huge amounts of armaments, all sent from Europe.

By contrast the U.S. sent ashore in Honolulu 162 armed sailors who served as peacekeepers, who never fired a shot or took over any buildings or gave any guns or ammunition or supplies to the local revolutionaries. The Queen gamely addressed her surrender to the U.S. rather than to the revolutionary forces who had actually overthrown her, hoping her friend Grover Cleveland would come to her rescue; but she had her letter delivered to the President of the Provisional Government Sanford B. Dole because she knew he was the man in charge.

As Leon Siu said, the apology resolution should not have been directed to a racial group. If indeed any apology is owed (which is extremely unlikely), it should be addressed to the people of all races whose government was overthrown in the revolution of 1893, not to ethnic Hawaiians. Throughout the Kingdom's history most cabinet ministers and department heads, most judges, and about 1/4 to 1/3 of the members of the Legislature (both Nobles and Representatives) had no Hawaiian native blood. By 1893 60% of the population had no Hawaiian native blood. Let the U.S. send zillions of dollars in reparations if it wishes -- not to ethnic Hawaiians alone but to all the people of Hawaii. We could surely use the money in these times of economic uncertainty.

In conclusion, today the public lands of Hawaii are owned by the government of Hawaii on behalf of all the people of Hawaii without racial distinction, just as was true during the Kingdom. When Hawaii was an independent nation and its government changed from Monarchy to Republic, the public lands remained under government control; only the government changed (in fact, only five people lost their jobs: the Queen and four cabinet ministers).

The Republic of Hawaii was internationally recognized de jure as the rightful government, legally entitled to cede the public lands to the U.S. as part of a merger. The U.S. agreed to pay off Hawaii's national debt and to hold the ceded lands as a public trust solely to benefit the people of Hawaii for education and other public purposes. In 1959 the lands once ceded to the U.S. were ceded back to the new State of Hawaii (except for national parks and military bases).

The U.S. Supreme Court will undoubtedly rule that the apology resolution has no bearing on the right of the State of Hawaii to sell ceded lands. If we're really lucky the Court will speak to the questions posed by the Pacific Legal Foundation, and rule that there can be no racial discrimination in the way the State of Hawaii manages the ceded lands or distributes the revenues they generate.

Dr. Conklin's recent book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" is featured at
http://tinyurl.com/2a9fqa
Send email to
Ken_Conklin@yahoo.com


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