Comment: Rice v. Cayetano - Justice Department Evidence Contradicts Supreme Court Decision

In Response to The Honolulu Advertiser, Editorial Page
John Goemans' February 27, 2000, Essay on Rice v. Cayetano

By Steven T. Newcomb, Director of the Indigenous Law Insitute
and research fellow at the Fourth World Center for the Study of Indigenous Law and Politics at the University of Colorado at Denver

March 13, 2000

John Goemans' February 27th op-ed essay about the recent Supreme Court decision in Rice, rests on his core belief that what "was annexed to the United States in 1898 was the Republic of Hawaii." He further clarified this point by referring to the "annexation of that foreign nation to the United States." Unfortunately for Mr. Goemans, however, these comments are premised upon an erroneous article of faith rather than on historical legal fact.

In 1988, the U.S. Justice Department issued an advisory memorandum to the Department of State, in which the unconstitutional and illegal nature of the 1898 Newlands Resolution is quite clearly spelled out. The memo explains that the Senate rejected an annexation treaty that had been negotiated by President McKinley with the "Republic of Hawaii." In an effort to by-pass the treaty process, Senator Newlands of Nevada sponsored a joint resolution of annexation.

A Senate Foreign Relations Committee report, issued at the time, explained that the Newlands Resolution relied on the annexation of Texas as a precedent. The Justice Department memo, however, points out a major difference between the case of Texas and that of Hawaii. Because Texas was acquired as a new state, the joint resolution annexing Texas relied on Congress' constitutional power to admit new states. For this reason, says the memo, "the method of annexing Texas did not constitute a proper precedent for the annexation of a land and people to be retained as a possession or in a territorial condition," namely, Hawaii.

The right to annex the Hawaiian Islands by treaty was not denied at the time of the Newlands Resolution, the memo says. But it was denied that annexation could be achieved in a constitutional manner by a simple legislative act. The memo quotes a constutional law scholar as observing that "only by means of treaties...can the relations" between nations "be governed," for "a legislative act is necessarily without extraterritorial force." A legislative act, such as a joint resolution, is "confined in its application to the territory of the" nation "by whose legislature it is enacted."

The Hawaiian Islands were foreign soil in 1898, some 2,100 miles beyond U.S. territory. Therefore, based on the international law principle of extraterritoriality, a U.S. joint resolution to annex Hawaii could not legally extend there. The 1988 memo fails to identify any provision in the U.S. Constitution, or any principle in international law, which could have provided a proper legal basis for the U.S. to acquire the Hawaiian Islands as a territory by joint resolution. In fact, the memo says that during the annexation debates Congressman Ball characterized the effort to annex Hawaii by joint resolution as "a deliberate attempt to do unlawfully that which can not be lawfully done."

As Mr. Goemans notes in his essay, the Supreme Court said last month in Rice that the United States Constitution "has become the heritage of all the citizens of Hawaii." If only this had been understood a generation ago, he complains, before the creation of a whole universe of unconstitutional laws--state and federal--began." But as the Justice Department memo documents, the issue of unconstitutionality cuts Goemans' rhetorical legs out from under him, and directly contradicts the Court's claim.

The Justice Department memo enables us to arrive at a number of conclusions highly disturbing to the status quo. No annexation of the Hawaiian Islands ever legally occurred in 1898. The "Territory of Hawaii" was not established in 1900, despite congressional legislation purporting the contrary. The Hawaiian statehood vote was a sham attempt to hide the historical illegality that began in 1893, with full U.S. complicity. And, the Kanaka Maoli (indigenous Hawaiians), virtually all of whom opposed U.S. annexation, and most of whom did not become citizens of the so-called Republic of Hawaii, have never been rightfully subject to the constitution of the United States.