War Crimes: TMT Told to Cease and Desist

Mauna Kea Illegal Occupation

On April 17, 2015 the following cease and desist letter was sent by Dexter Kaiama, legal counsel for Chase Kaho‘okahi Kanuha and Lanakila Mangauil, to Douglas Ing from the law firm Watanabe and Ing who is the legal counsel for TMT International Observatory, LLC. Kanuha and Mangauil are the leaders of the protectors of Mauna Kea.

The cease and desist letter was also sent to the Canadian Department of Justice, who investigates war crimes, the Prosecutor the International Criminal Court, the Board of Regent of the University of Hawai‘i, the State of Hawai‘i Board of Land and Natural Resources, the Trustees of the Office of Hawaiian Affairs, County of Hawai‘i Police Department.

******

TMT International Observatory, LLC,
by its attorney James Douglas Ing
First Hawaiian Center
999 Bishop Street, 23rd Floor
Honolulu, HI 96813

Re: WAR CRIMES CEASE & DESIST NOTIFICATION- Construction of 30-Meter Telescope on Mauna Kea

Dear Mr. Ing:

This law office represents Chase Kaho‘okahi Kanuha and Lanakila Mangauil, both being Hawaiian subjects of the Hawaiian Kingdom with vested undivided rights in the lands as native tenants under Hawaiian law.

Your client, TMT International Observatory, LLC, is hereby directed to immediately cease and desist in the construction of a 30-meter telescope on the summit of Mauna Kea that is situated within the ahupua‘a of Ka‘ohe, district of Hamakua, Island of Hawai‘i, Hawaiian Kingdom. The ahupua‘a of Ka‘ohe is public land under the administration of the Minister of the Interior of the Hawaiian Kingdom under An Act Relating to the Lands of His Majesty the King and of the Government (1848). The Hawaiian Kingdom has been under an illegal and prolonged occupation by the United States of America since August 12, 1898 during the Spanish-American War.

Under international law, extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly is a war crime. The construction of permanent fixtures on public property that belongs to the Hawaiian Kingdom government is extensive destruction of that property.

On behalf of my clients, be advised that the construction of the 30-meter telescope is a war crime in violation of:

  • Article 56, Hague Convention, IV (1907), “All seizure of, destruction or willful damage done to institutions [dedicated to religion, charity and education, the arts and sciences, even when State property], historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings;”
  • Article 53, Geneva Convention, IV (1949), “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations;” and
  • Article 147, Geneva Convention, IV (1949), “Grave breaches… shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: …extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

The United States military’s omission of preventing the destruction of the public property of the Hawaiian Kingdom is also a war crime in violation of:

  • Article 55, Hague Convention, IV (1907), “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the [occupied] State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

The Final Declaration adopted by the International Conference for the Protection of War Victims in 1993 urged all States to make every effort to, “Reaffirm and ensure respect for the rules of international humanitarian law applicable during armed conflicts protecting…the natural environment…against wanton destruction causing serious environmental damage.” In its advisory opinion in the Nuclear Weapons case in 1996, the International Court of Justice stated, “States must take environmental considerations into account when assessing what is necessary and proportionate… Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principle of necessity.”

War crimes of destruction of real property on the summit of Mauna Kea belonging to the occupied State have been committed since the State of Hawai‘i leased 13,321.054 acres of the summit of Mauna Kea to the University of Hawai‘i in 1968. Thirteen telescopes have been constructed as permanent fixtures since 1970, and your client will make it fourteen. TMT International Observatory, LLC, has already committed the war crime of destruction of property when it began the construction of the 30-meter telescope by breaking ground, and has committed secondary war crimes of unlawful confinement (Article 147, Geneva Convention, IV) when 31 individuals who were preventing TMT International Observatory, LLC, from committing additional destruction.

The Hawaiian Islands was never an incorporated territory of the United States and is currently under an illegal and prolonged occupation. The Hawaiian Kingdom was recognized as an independent and sovereign State since November 28, 1843 by joint proclamation of Great Britain and France. As a result of the United States’ recognition of Hawaiian independence, the Hawaiian Kingdom entered into a Treaty of Friendship, Commerce and Navigation, Dec. 20th 1849 (9 U.S. Stat. 977); Treaty of Commercial Reciprocity, Jan. 13th 1875 (19 U.S. Stat. 625); Postal Convention Concerning Money Orders, Sep. 11th 1883 (23 U.S. Stat. 736); and a Supplementary Convention to the 1875 Treaty of Commercial Reciprocity, Dec. 6th 1884 (25 U.S. Stat. 1399).

The Hawaiian Kingdom also entered into treaties with Austria-Hungary, June 18, 1875; Belgium, Oct. 4, 1862; Bremen, March 27, 1854; Denmark, Oct. 19th 1846; France, July 17, 1839, March 26, 1846, Sep. 8, 1858; French Tahiti, Nov. 24, 1853; Germany, March 25, 1879; Great Britain, Nov. 13, 1836 and March 26, 1846; Great Britain’s New South Wales, March 10, 1874; Hamburg, Jan. 8, 1848; Italy, July 22, 1863; Japan, Aug. 19, 1871, Jan. 28, 1886; Netherlands, Oct. 16, 1862; Luxembourg, Oct. 16, 1862; Portugal, May 5, 1882; Russia, June 19, 1869; Samoa, March 20, 1887; Spain, Oct. 9, 1863; Sweden-Norway, April 5, 1855; and Switzerland, July 20, 1864.

Unable to procure a treaty of cession from the Hawaiian Kingdom government acquiring the Hawaiian Islands as required by international law, Congress enacted a Joint Resolution To provide for annexing the Hawaiian Islands to the United States, which was signed into law by President McKinley on July 7, 1898 during the Spanish-American War (30 U.S. Stat. 750) as a war measure. Congressional laws have no extraterritorial effect and are confined to United States territory.

The Hawaiian Kingdom came under military occupation on August 12, 1898 at the height of the Spanish-American War in order to reinforce and supply troops that have been occupying the Spanish colonies of Guam and the Philippines since May 1, 1898. Following the close of the Spanish-American War by the Treaty of Paris signed December 10, 1898 (30 U.S. Stat. 1754), U.S. troops remained in the Hawaiian Islands and continued its occupation to date in violation of international law.

U.S. War Department General Orders no. 101 (July 18, 1898) regulated U.S. troops when it began the occupation of the Hawaiian Islands on August 12, 1898. General Orders no. 101 mandated the Commander of U.S. troops to administer the laws of the occupied territory, being the civil and penal laws of the Hawaiian Kingdom. This order was not complied with. Administration of the laws of the occupied State was codified by Article 43, 1899 Hague Convention, II (32 U.S. Stat. 1803), and then superseded by Article 43, 1907 Hague Convention, IV (36 U.S. Stat. 2227). On August 12, 1949, the United States signed and ratified the (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (6 U.S.T. 3516, T.I.A.S No. 3365, 75 U.N.T.S. 287).

In direct violation of the 1899 Hague Convention, II, President McKinley signed into United States law An Act To provide a government for the Territory of Hawai‘i on April 30, 1900 (31 U.S. Stat. 141); and on March 18, 1959, President Eisenhower signed into United States law An Act To provide for the admission of the State of Hawai‘i into the Union (73 U.S. Stat. 4) in direct violation of the 1907 Hague Convention, IV. These domestic laws have no extraterritorial effect and stand in direct violation of the 1907 Hague Convention, IV, the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, IV, international humanitarian law, and customary international law—jus cogens.

In an evidentiary ruling in State of Hawai‘i v. English (CR 14-1-0820) on March 5, 2015, where I served as defense counsel, the State of Hawai‘i Circuit Court took judicial notice of adjudicative facts that concluded the Hawaiian Kingdom continues to exist as a State under international law, despite the illegal overthrow of its government by the United States of America on January 17, 1893 and the prolonged occupation since August 12, 1898. This ruling reaffirms the illegitimacy of the State of Hawai‘i and therefore its claim to be a de jure government is unfounded. State of Hawai‘i officials are also named in a pending criminal investigation for war crimes that is currently before the Swiss Federal Criminal Court Appeals Chamber under Gumapac, et al., vs. Office of the Federal Attorney General, reference no. BB.2015.36-37. A Hawaiian subject filed the first war crime complaint with the Swiss Attorney General on December 22, 2015 [2014],  and a Swiss citizen filed the second complaint on January 21, 2015. Both complaints allege State of Hawai‘i officials committed war crimes of unfair trial, pillaging, and unlawful appropriation of property.

Being a self-declared entity, the State of Hawai‘i was never lawfully vested with the freehold in fee-simple to the ahupua‘a of Ka‘ohe, and therefore its so-called general lease no. S-4191 to the University of Hawai‘i dated June 21, 1968 is null and void. Consequently, all 10 subleases from the University of Hawai‘i that extend to December 31, 2033 are null and void as well, to wit:

  • National Aeronautics and Space Administration dated November 29, 1974;
  • Canada-France-Hawai‘i Telescope Corporation dated December 18, 1975;
  • Science Research Council dated January 21, 1976;
  • California Institute of Technology dated December 20, 1983;
  • Science and Engineering Research Council dated February 10, 1984;
  • California Institute of Technology dated December 30, 1985;
  • Associated Universities, Inc., dated September 28, 1990;
  • National Astronomical Observatory of Japan dated June 5, 1992;
  • National Science Foundation dated September 26, 1994; and
  • Smithsonian Institution dated September 28, 1995.

Therefore, the proposed University of Hawai‘i sublease to TMT International Observatory, LLC, would also be considered null and void.

The funders for the construction of the 30-meter telescope who are not the principal partners are accomplices to the principal partners’ war crime of destruction of an occupied State’s property. On April 6, 2015, Canadian Prime Minister Stephen Harper announced the Canadian government’s intent to provide nearly $250 million dollars over the next decade to assist in the destruction. The Canadian government’s involvement would be a war crime as defined under Article 6(3) of Canada’s Crimes Against Humanity and War Crimes Act (2000), which is similar to Switzerland’s legislation implementing the International Criminal Court Rome Statute into the Swiss Criminal Code in 2010. I will be providing a copy of this cease and desist to the Canadian Department of Justice, Crimes Against Humanity and War Crimes Section.

Thank you for your anticipated cooperation.

Very truly yours,
DEXTER K. KA‘IAMA
Attorney-at-law

Encl. (hotlinks to e-documents)

cc:

Canadian Department of Justice
Prosecutor, International Criminal Court
Board of Regents, University of Hawai‘i, State of Hawai‘i
Board of Land and Natural Resources, State of Hawai‘i
Trustees, Office of Hawaiian Affairs, State of Hawai‘i
Police Department, Hawai‘i County, State of Hawai‘i

Enclosures

(Hotlinks to e-documents)

News Media Misses Real Story in Reporting on TMT Protest

The evidence debunking the fairy tale of Hawaii as the 50th State is conclusive but the news media ignores this.

Keokani MarcielAs a contributor who previously published this article in Civil Beat, Keokani Marciel has allowed this piece to be posted on this blog. He is a lifelong aloha ʻāina (Hawaiian patriot) and kanaka ʻōiwi (aboriginal Hawaiian) who holds a B.S. in Nutrition Science from the University of California at Davis, and an M.S. in Exercise Science from California University of Pennsylvania. In 2008, Keokani made a career change to mathematics education, and is currently studying to pass his second actuarial exam. With his background, he brings a quantitative and scientific emphasis to the discussion regarding the legal status of Hawaiʻi as an occupied nation-state. He has created the following link which lists the data and references used in this article goo.gl/d6Ra2B.

The largest newspaper in the occupied Hawaiian Kingdom marked the kickoff for the TMT blockade on March 26th with an online poll asking whether or not readers support the intervention. The final score at the end of this 24-hour poll was 53% in favor of the blockade and 47% against it. More than 4,600 votes were gathered by this self-selected survey. Although not a scientific poll, the sample size is significantly larger than average for this daily feature of the newspaper.

The arrest of 31 subjects and supporters of the Hawaiian Kingdom on April 2nd triggered international media attention. In the United States, most news organizations circulated the two reports from the Associated Press, both of which made sure to ommit the legal status of the Hawaiian Islands as a nation-state which remains under prolonged, illegal occupation since August 12, 1898. Consequently, most Americans remain under the mistaken impression that Hawaiʻi is annexed, as influenced by the systematic pasttime of Occupation denial and distortion uniformly practiced by corporate news media in the U.S. This phenomenon represents a deliberate refusal to look at the raw data regarding Hawaiian sovereignty, which has become common knowledge in the Occupied Kingdom.

Throughout its history, the United States has entered into a total of 9 treaties of cession over a period of 168 years (1783-1951). The first 6 of these 9 treaties annexed the territories from which all 49 states and Washington D.C. were admitted to the American Union, known as the United States, during the first 84 years of its history (1783-1867). The consistent adherence to this procedure by the U.S. represents customary international law. Furthermore, the two failed attempts to pass a treaty of cession in the U.S. Senate, in 1893 and 1897, clearly demonstrates the intent by the U.S. to maintain compliance with this international custom.

Hence, the joint resolution passed by U.S. Congress in 1898, used as a measure to seize Hawaiʻi during the Spanish-American War, was in violation of this self-evident pattern of customary international law. Consequently, Hawaiʻi came under U.S. occupation and not annexation. According to the laws of occupation, the U.S. was required to end its occupation of Hawaiʻi at the end of the Spanish-American War. Instead, the U.S. Occupation of Hawaiʻi, prolonged to the present day, is illegal. Additionally, it is the longest military occupation in modern history, which means there is no historical precedent to suggest that it is not near or passed its expiration date.

The feigned annexation of Hawaiʻi by joint resolution in 1898 was not the end of U.S. adherence to the customary international law of territorial annexation through bilateral treaty of cession. Merely 5 months after unilaterally seizing Hawaiʻi, the U.S. picked up where it left of by annexing Guam, Phillipines, and Puerto Rico through the 1898 Treaty of Paris. This was the 7th treaty of cession that the U.S. entered across a total of 115 years up to this point. The pattern continued such that the U.S. acquired a total of 6 territories by entering into 3 treaties of cession over a period of 61 years (1898-1951), following its seizure of Hawaiʻi by joint resolution.

American Sāmoa is the only other territory ever acquired by the U.S. through a joint resolution of U.S. Congress instead of a treaty of a cession ratified by at least two-thirds of the U.S. Senate. However, not for the same reason as Hawaiʻi. The Indian Appropriation Act of 1871 marked the end of treaties being entered into by the United States with Native American tribes. Furthermore, the Island of Palmas arbitration in 1925 established a legal precedent that a State can only enter into a treaty with another State, and not with a non-State tribal group. Since the territorial cessions of American Sāmoa to the United States, in 1900 and 1904, were by chiefs rather than States, this prevented the United States from using the treaty process reserved for the U.S. Senate. Consequently, a joint resolution of U.S. Congress was used to ratify these bilateral territorial cessions.

What makes Hawaiʻi different is that the U.S. Congress entered a joint resolution with a puppet government that it had installed in 1893, which did not have the consent of the people governed. Therefore, it was a unilateral seizure of territory by joint resolution, whereas the joint resolution annexing American Sāmoa was not due to an inability to obtain two-thirds approval of the U.S. Senate. In other words, American Sāmoa is legitimately annexed to the United States, albeit a non-self-governing territory according to the United Nations. This further isolates Hawaiʻi as the single historical anomaly of customary international law, unprecedented by comparison to the 57 states and territories legitimately ceded to the United States throughout its history.

The score bears repeating: 56 territories annexed by 9 treaties of cession, and the unique annexation of American Sāmoa, compared to Hawaiʻi being the lone territory seized by joint resolution—all in a span of 168 years. Hawaiʻi is chronologically sandwiched between 6 of these treaties of cession, along with the 50 territories they annexed prior to the Newlands Resolution, and the remaining 3 treaties of cession, along with the 6 territories they annexed plus American Sāmoa.

If one looks objectively at the raw data shown above, customary international law regarding territorial annexation by the United States becomes self-evident, and it logically follows that Hawaiʻi is occupied. However, alleged annexation of Hawaiʻi by congressional joint resolution is also in violation of the U.S. Constitution, which does not enumerate territorial annexation as a power of U.S. Congress. Instead, U.S. Congress only has the power to admit states from territory annexed by way of treaty, which in turn requires ratification by a supermajority of the U.S. Senate. Consequently, the Newlands Resolution of 1898, the Organic Act of 1900, and the Statehood Admission Act of 1959, are domestic laws that are constitutionally restricted to the borders of the entire 49 United States. Since occupation and annexation are mutually exclusive, Hawaiʻi is not inside of the United States. By analogy, hijacking an airplane does not transfer ownership title to the hijacker.

Additionally, 88 out of the 90 members of the U.S. Senate, of the 55th Congress, argued in 1898 that annexation of Hawaiʻi by joint resolution was unconstitutional (youtu.be/yC4v0k0wd0Y). Conversely, only two senators argued that annexation by joint resolution was constitutional. Therefore, for someone today to insist that the alleged annexation of Hawaiʻi by joint resolution is somehow constitutional, is to believe that 98% of the 55th U.S. Senate misinterpreted the U.S. Constitution in 1898, and therefore didn’t know what they were talking about.

When faced with the evidence, the world eventually accepted the reality that the Earth is spherical and that the planets in our solar system revolve around the sun. Likewise, now faced with the unequivocal evidence that Hawaiʻi is occupied and has never been annexed, people will have to let go of the longheld myth that Hawaiʻi is part of the United States. A nation-state taken over by another nation-state is either occupied or annexed, but cannot be both simultaneously. In summary, without a treaty of cession, Hawaiʻi is not annexed to the United States. Without annexation, Hawaiʻi was never admitted to the United States. Without admission, Hawaiʻi cannot be called a state of the United States. What you have instead in Hawaiʻi is an occupant government masquerading as a state.

The evidence debunking the fairy tale of Hawaiʻi as the “50th State” is so conclusive that it is logically only a matter of time before the paradigm shift completes its natural course. Furthermore, the cognitive dissonance that this involves is being accelerated on an unprecedented scale by the TMT standoff on Mauna Kea. Therefore, how much longer can the world continue looking the other way and pretend that Hawaiʻi is annexed—rather than occupied—by the United States? How much longer can the corporate news media—especially in the United States—continue this cover-up by omission?

International Law “Forbids” Construction of the 30-meter Telescope

TMT telescope

The position taken by Mauna Kea protectors that the building of the 30-meter telescope is a desecration of sacred land is firmly grounded in international law. Because the Hawaiian Kingdom has been under an illegal and prolonged occupation by the United States since the Spanish-American War in 1898, the international laws of occupation apply to Hawai‘i’s situation and not United States law.

International law prohibits a neutral country from being occupied when two or more other countries are at war with each other. In other words, the United States was prohibited from occupying the Hawaiian Kingdom, being an internationally recognized neutral country since 1854, in its war against Spain in 1898. Despite the violation of international law, the laws of occupation mandates the occupier to temporarily administer the laws of the occupied State until the occupation comes to an end.

During the Spanish-American War the laws of war and occupation of countries were considered customary international law and in 1899, The Hague Conventions codified these laws into four treaties. In 1907, The Hague Conventions were revised into fifteen treaties. The United States ratified all of the Hague Conventions. The 1907 Hague Convention, IV—Respecting the Laws and Customs of War on Land, applies to Hawai‘i’s occupation even if Hawai‘i is not a war with the United States.

Article 43 mandates the occupier “shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” In addition, Article 56 specifically protects “institutions dedicated to religion, charity and education, [and] the arts and sciences. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.” The United States military considers violations of the provisions of the Hague Convention, IV, to be war crimes. Section 499 of the U.S. Army FM 27-10 states, “The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.”

Mauna Kea Protectors

The Mauna Kea protectors have generated worldwide awareness, much through social media, in order to prevent the building of a 30-meter telescope on the revered mountain in the Hawaiian Kingdom called Mauna Kea. Some are calling this the “Hawaiian Spring” that has similar traits to the “Arab Spring” where the younger generation in the Arab world was mobilized through social media to protest and demonstrate against undemocratic rule.

We Are Mauna Kea

The developers of this would be 18-story telescope is TMT International Observatory (TIO) that was formed in 2014. Presently TIO is a partnership of six international organizations—the California Institute of Technology (USA), the National Institutes of Natural Science (Japan), the National Astronomical Observatories of the Chinese Academy of Science (China), the Regents of the University of California (USA), the Association of Canadian Universities for Research in Astronomy (Canada), and the Indian Institute of Astrophysics (India).

The proposed development began in 2010. According to the TMT website, “TMT completed an Environmental Impact Statement, after 14 community meetings, and it was signed by the Governor of Hawaii. The Cultural Impact Statement, as key part of the document, included consultations with Native Hawaiian cultural practitioners. No groups or individuals challenged the contents or process of this important and required document.”

TMT also stated that in 2013, “the Kahu Ku Mauna Council, made up of local Native Hawaiian cultural practitioners approved the University of Hawaii granting a sublease to TMT to build on Mauna Kea. The University of Hawaii Board of Regents, after another public hearing, agreed.” The following year, “the Hawaii Board of Land and Natural Resources voted to approve the sublease for the TMT site.”

Mauna Kea is government land of the Hawaiian Kingdom and in 1848 it came under the administration of the Minister of the Interior under An Act Relating to the Lands of His Majesty the King and of the Government. The Act states, “And we do hereby appoint the Minister of the Interior and his successors in office, to direct, superintend, and dispose of said lands, as provided in the Act to organize the Executive Departments… Provided, however, that the Minister of the Interior and his successors in office shall have the power, upon the approval of the King in Privy Council, to dispose of the government lands to Hawaiian subjects, upon such other terms and conditions as to him and the King in Privy Council, may seem best for the promotion of agriculture, and the best interests of the Hawaiian Kingdom.” By an Act in 1854, the Hawaiian Legislature allowed foreign nationals to own property in the Kingdom, but subject to Hawaiian law.

On October 18, 1893, a Presidential investigation concluded that the United States diplomat assigned to the Hawaiian Kingdom, John Stevens, and Naval Captain Gilbert Wiltse were directly responsible for the illegal overthrow of the Hawaiian Kingdom government that occurred on January 17, 1893. On December 18, President Cleveland entered into an executive agreement to reinstate Queen Lili‘uokalani and her cabinet but due to political wrangling in the Congress, Cleveland was not able carry out the agreement. What was on the minds of the Congress was to secure the Hawaiian Islands as a military outpost in order to protect the American west coast from foreign invasion.

Unable to secure a treaty of annexation, the United States Congress unilaterally seized the Hawaiian Islands during the Spanish-American War under what a Senator called a war necessity. The United States claim to sovereignty over the Hawaiian Islands relies on a congressional joint resolution of annexation that was signed into U.S. law by President McKinley on July 7, 1898. The underlying problem that congressmen at the time knew was that no law of Congress can have any force and effect beyond the borders of the United States. In other words, the United States could no more annex the Hawaiian Islands by passing a domestic law, than it could annex Canada today by passing a law. American diplomats and revisionist historians took measures to conceal this from the world. Today, the Hawaiian Islands serves as headquarters for the largest United States combatant unified command in the world called the U.S. Pacific Command, and 20% of the Hawaiian Islands come under the direct control of U.S. troops.

On January 17, 1893, U.S. forces seized the Hawaiian Kingdom government by illegally removing the Queen, as the chief executive officer, and her cabinet of ministers, and replaced them with insurgents. All other officials and employees in the executive and judicial branches of government were then forced to sign oaths of allegiance to the insurgents under threat by U.S. troops. This is called regime change.

The Hawaiian Kingdom government was renamed to the self-declared provisional government on January 17, 1893. On July 4, 1894, the same insurgents renamed themselves to be the Republic of Hawai‘i. By an Act of Congress on April 30, 1900, the so-called Republic of Hawai‘i was renamed the “Territory of Hawai‘i,” and by another Act of Congress on March 18, 1959, it was renamed the “State of Hawai‘i.” Interestingly, the Congress passed a joint resolution on November 23, 1993, apologizing for the illegal overthrow of the Hawaiian Kingdom government, and specifically called the Republic of Hawai‘i “self-declared.” Self-declared means it wasn’t a government a lawful government. So if the so-called Republic of Hawai‘i was self-declared, then its successors are self-declared as well since the so-called Territorial and State of Hawai‘i government can claim no U.S. authority if Congressional laws have no effect beyond U.S. borders.

Simply said, the Hawaiian Kingdom government was carjacked and merely painted red, white and blue.

In light of this important historical and legal information, TIO cannot claim to have a valid lease from the States of Hawai‘i to build the 30-meter telescope if the State of Hawai‘i is self-declared. Only a U.S. military governor established under the laws of occupation and temporarily acting in the capacity of the Hawaiian Kingdom’s Minister of the Interior could enter into a lease, but only after hearings and public input is gathered under Hawaiian Kingdom law and not the laws of the United States. The issue is not whether or not the 30-meter telescope should be built on Mauna Kea, but rather have Hawaiian laws been complied with that would allow or not allow the construction of the telescope. Should TIO disregard the law they would be prosecuted for war crimes.

The Hawai‘i Independent – 50,000 Signatures Support Mauna Kea Protectors and the Hawaiian Kingdom

This email was received from The Hawai‘i Independent blog that posted the story of the 50,000 signature petition so we have therefore removed this story from this blog and to thank them for bringing this to our attention.

“The article above was not written by Hawaii Independent staff members, but was posted in a public bulletin forum by the same person the story quotes (Emilie Dykes) extensively. Since the post was made, we have been trying to confirm the accuracy of the information contained within it. We have not been able to confirm that such a petition was passed around and signed by Hawaii residents. In addition, the names listed in the PDF signature list linked in the story do not appear to be actual Hawaii residents. None of the names listed appeared in any database when paired with the Hawaii towns and zip codes where these people supposedly live. Because we cannot confirm the accuracy of this post, we have removed it from our website.”

UH Hilo & UH Hawai‘i Community College Student Walkout in Support of Mauna Kea Protectors

UH Hilo and HCC Student WalkoutCORRECTION: The Student walkout at the University of Hawai‘i at Hilo and Hawai‘i Community College will take place at 12 noon, and not a 8:30. This is consistent with the Student walkouts at the University of Hawai‘i at Manoa, Kapi‘olani Community College, Windward Community College, and University of Hawai‘i Maui College.

Press Release: Protectors of Mauna Kea Update Status

Mauna Kea, Kaʻohe, Hāmākua, Hawaiʻi
For Immediate Release
April 7, 2015

TMT SHUTDOWN

Protectors of Mauna Kea update the status of their encampment on the mountain

The protectors of Maunakea continue to camp out across the Maunakea Visitors Center at approximately 9,200 feet elevation night in and night out and will soon reach the two week mark of their encampment.  Although over 30 arrests were made on Thursday,  April 2 by the Hawaii County Police Department and the DOCARE officers of the DLNR, the protectors atop the mountain of Wākea, continue their stance against the construction of the Thirty Meter Telescope and continue to build momentum and gain support.  One reason for the building of momentum and support, they say, is what they are calling the Kapu Aloha.  “Abiding by this is what has fueled and protected us in this movement,” says Lanakila Mangauil.  Mangauil says the Kapu Aloha is about conducting oneself with respect towards others, under any and all circumstances.  Over the weekend, hundreds of supporters ascended the mountain to join in the protection efforts, with many flying in from Maui, Molokaʻi, Oʻahu and Kauaʻi.  Although no construction has taken place since the day arrests were made, the protectors have kept a constant presence and plan to continue to do so while attempting to garner more support.

Protectors of the mountain have many reasons why they oppose the proposed construction of the TMT, one being that the mountain is considered sacred and perhaps the most sacred lands in all of Hawaiʻi.  The mountain is named after Wākea who mated with Papahānaumoku to birth Hawaiʻi Island.  The peak of the mountain is considered to be wao akua, or the realm of the gods, as it is the dwelling place of gods and goddesses such as Poliahu, Waiau, Lilinoe, Lihau, Kukahauula, Kahoupokane and Mooinanea.  Another reason for the opposition to the TMT is the fact that protectors feel that the TMT does not adhere to the developmental laws of conservation lands as determined by the State of Hawaiʻi and the mountain also contains many religious shrines as well as burial sites and sits on top of the largest aquifer on the island of Hawaiʻi and therefore they consider it to be desecration.  Lastly, the protectors realize and understand that even if the TMT was in compliance with the laws of developing on conservation lands, the State of Hawaiʻi is illegal and the Hawaiian Kingdom was never lawfully annexed by the United States of America and therefore continues to exits today according to International Law.  This stems from the fact that Americaʻs only claim to annexing Hawaiʻi is by Joint Resolution on July 7, 1898, which is really just a domestic law having no authority outside the boundaries of its territory, and Hawaiʻi clearly was not a part of the U.S in 1898 since it required annexation.  Because the State of Hawaiʻi is illegal, the protectors argue that every extension and branch of the State is therefore also illegal and due to this, all contracts between the contractors and the State of Hawaiʻi are void and illegal.  Protectors of the mountain call upon all countries involved to honor the continued independence of Hawaiʻi that America has refused to acknowledge for the last 122 years while illegally occupying Hawaiʻi in violation of the laws of occupation.

The protectors of the mountain know that there are many out there who have and continue to offer their support through donations of food, water, money and other necessities, and while appreciated, those atop the mountain humbly and respectfully ask that any attempts of raising funds and collecting and delivering donations be communicated first with the protectors  so as not to mismanage resources and cause confusion amongst the people in regards to what  certain funds and donations could be used for.  Kahoʻokahi Kanuha, one of the protectors and one who was arrested in the first group last Thursday, says “We canʻt thank everyone enough.  The amount of support we have received over the past week is absolutely unbelievable and simply amazing.  I am not quite sure our people have seen a movement like this in their lifetime and I think itʻs a testament to the fact that our people have been ignited and are ready to move forward and solidify ourselves once again throughout the world as a people and a country.”

###

For more information, contact:
1-808-494-0626 or 1-808-936-4249
tmtshutdown@gmail.com
Twitter: @tmtshutdown
#TMTshudown on Facebook, Instagram & Twitter
http://www.gofundme.com/maunakeaohana

Big Island Video News: Mauna Kea and the Occupied Hawaiian Kingdom

Talk story with Dr. David Keanu Sai and attorney Dexter Kaiama in Hilo concerning the international ramifications of the proposed Thirty Meter Telescope on Mauna Kea, and the growing awareness of the continued existence of the occupied Hawaiian Kingdom.

by David Corrigan

HILO – Inspired by the kapu aloha on display during the blockade of the Thirty Meter Telescope, Hawaii residents are flocking to Mauna Kea. Last Thursday, 31 people were arrested in connection with the blockade of the $1.4 billion observatory. However, the incident only strengthened the support for the protectors of the sacred mountain. On Monday, two figures active on the international front lines of the Hawaiian Kingdom joined the gathering.

Big Island Video News interviewed Dr. David Keanu Sai and attorney Dexter Kaiama about the latest developments on Mauna Kea and the international response.

In 1994 a State of Hawai‘i Court asked “Does the Hawaiian Kingdom Continue to Exist?”

What many people may not know is that it was the State of Hawai‘i Intermediate Court of Appeals (ICA) in 1994 that established a landmark and precedent case where defendants have the burden to provide a factual or legal basis that would conclude the Hawaiian Kingdom continues to exist as a state when they are challenging the jurisdiction of the trial courts. This case is State of Hawai‘i v. Lorenzo. This has been an open legal question and not a political question that has been before the courts in Hawai‘i for the past twenty-one years. It was conclusively answered “yes” in another landmark case State of Hawai‘i v. English during an evidentiary hearing on March 5, 2015.

The Lorenzo case was in response to the United States Congressional apology for the illegal overthrow of the Hawaiian Kingdom government on January 17, 1893—U.S. Public Law 103-150. In 1993, the Congress admitted to the United States’ illegal overthrow of the Hawaiian government, but it did not admit to the overthrow of the Hawaiian Kingdom as a state. A government is not a state in international law. A state is a sovereign country that is a member of the family of nations, while a government is the physical body that exercises the sovereign authority of the country. State and country are synonymous, and history shows that while governments were overthrown, it doesn’t mean that countries were overthrown. Examples include the overthrow of the Japanese government by the Allied countries in 1945 during World War II, the overthrow of the Kuwaiti government by Iraq in 1990 during the Gulf War, and the overthrow of the Iraqi government in 2003 by the United States during the Iraq War.

The Lorenzo case addressed this very issue of whether or not the Hawaiian state still exists despite the admitted illegal overthrow of its government in 1893. There has been a common misunderstanding that treats the overthrow of the Hawaiian government synonymous with the overthrow of the Hawaiian state. The Lorenzo case distinguishes the two and concluded that this is an open legal question. If the Hawaiian state continues to exist, then the State of Hawai‘i (USA) cannot legally exist in the Hawaiian Islands.

In 1991, Anthony Lorenzo was tried in the First Circuit Court after being indicted on criminal charges of failing to render assistance after being involved in an automobile accident, driving without a license, and negligent injury. A pre-trial motion to dismiss the indictment was filed claiming that the State of Hawai‘i had no jurisdiction over him because the Hawaiian Kingdom still existed as a sovereign nation. The trial judge denied the motion to dismiss, which became the basis for the appeal to the ICA in 1994.

Walter HeenJudge Walter Heen, who authored the Lorenzo judgment, wrote, “The essence of the lower court’s decision is that even if, as Lorenzo contends, the 1893 overthrow of the Kingdom was illegal, that would not affect the court’s jurisdiction in this case. Although the court’s rationale is open to question in light of international law, the record indicates that the decision was correct because Lorenzo did not meet his burden of proving his defense of lack of jurisdiction. Therefore, we must affirm the judgment.” Judge Heen concluded, “it was incumbent on Defendant to present evidence supporting his claim. Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature. Consequently, his argument that he is subject solely to the Kingdom’s jurisdiction is without merit, and the lower court correctly exercised jurisdiction over him.”

In the ICA decision, Judge Heen provided the definition of a state as “an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.” A careful reading of this definition clearly distinguishes the state from its government, where the “state” is “under the control of its own government.” The government is not the state.

Judge Heen also stated, “The illegal overthrow leaves open the question whether the present governance system should be recognized, even though the illegal overthrow predated the United Nations Charter.” The Lorenzo case put forth a legal question in both State of Hawai‘i and Federal Courts in the Hawaiian Islands, as well as bringing in international law. This legal question has profound consequences that centers on whether the Hawaiian Kingdom as a state exists or not. It is international law that will determine the existence of the Hawaiian state, and not the laws of the United States.

In the Nishitani v. Baker (1996), Judge Corrine Watanabe of the ICA stated, “In retrospect, our statement in Lorenzo that a criminal defendant has the burden of proving his or her defense of lack of jurisdiction may have generated some confusion. [Hawai‘i Revised Statutes] specifically provides that in a criminal case, a defendant may not be convicted unless the State proves beyond a reasonable doubt ‘facts establishing jurisdiction.’ The burden of proving jurisdiction thus clearly rests with the prosecution. However, where immunity claims are raised as a defense to jurisdiction, the burden is on the defendant to establish his or her immunity status.”

For the past twenty-one years, judges at the trial court level have consistently denied requests by defendants to dismiss either criminal or civil complaints filed in the State of Hawai‘i and Federal courts on the grounds that the Hawaiian Kingdom continues to exist. These judges have relied on the Lorenzo case to deny the requests. When these decisions are taken on appeal, the ICA has routinely upheld the judgments by citing the Lorenzo case, “Because the defendant had ‘presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,’ we determined that the defendant had failed to meet his burden of proving his defense of lack of jurisdiction.”

The ICA cited the burden of the Lorenzo case was not met by the defendants in a total of forty-one appeals between 1994 and 2014, and the Hawai‘i Supreme Court during this same period cited the same failure of defendants to provide a “factual (or legal) basis for concluding that the Kingdom exists as a state” in six appeals. In total there have been forty-seven appeals that cited the landmark Lorenzo case that was decided on October 20, 1994. What isn’t accounted for, however, is how many trial courts denied defendants motions to dismiss that did not make it to an appeal.

In all of these cases that came before the State of Hawai‘i appellate courts, the defendants provided evidence of some sort, but the Lorenzo case required the defendants to provide evidence that is “conclusive,” and not just evidence. Conclusive is evidence that is “indisputable” between the prosecution or plaintiff and the defense. In order to overcome this hurdle of “indisputability,” which is a very high standard, the defendants need to have an evidentiary hearing where the rules of evidence are applied. It is in the evidentiary hearing that the defendants can introduce evidence that the Hawaiian Kingdom continues to exist as a state according to the Lorenzo case. The prosecution or the plaintiff, however, cannot object to the evidence for the sake of objecting. They have to provide counter-evidence. If they object by providing counter-evidence then the evidence is considered “disputable,” and therefore would not meet the burden of the Lorenzo case where it has to be “indisputable” making the evidence “conclusive” that the Kingdom exists as a state.

One way to get the evidence to be recognized as “indisputable” and “conclusive” would be to have the court take “judicial notice” of the defendant’s evidence under Rules 201 and 202 of the Hawai‘i Rules of Evidence. Black’s Law Dictionary (p. 848, 6th ed. 1990) defines judicial notice as the “act by which a court recognizes the existence and truth of certain facts.” Under Rule 201 is judicial notice of “adjudicative facts,” and Rule 202 is judicial notice of laws. When Judge Cardoza took judicial notice of Dr. Keanu Sai’s legal brief titled, “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom,” at the request of the defense during the evidentiary hearing on March 5, 2015 in State v. English at the Second Circuit Court on the Island of Maui, it included both “adjudicative facts” and “laws.”

Throughout the evidentiary hearing, the prosecution did not object to Dr. Sai’s expert testimony that the Hawaiian Kingdom continues to exist as a state under international law, and it didn’t object to the Judge taking judicial notice of Dr. Sai’s brief that concludes the existence of the Hawaiian state. By not objecting during an evidentiary hearing, the prosecution was in agreement with the evidence being presented. What is extremely important during a criminal proceeding is the appearance of fairness and due process because the defendants are facing a judgment that could lead to imprisonment. In other words, the only way for the prosecution to object to the evidence presented by the defendants is that it must show counter evidence. Without counter evidence, the prosecution cannot object for the sake of objecting. To do so would be to violate the defendants’ right to a fair trial and due process.

State v. English is a landmark case, because the judge took judicial notice of adjudicative facts and laws that concludes the Hawaiian Kingdom continues to exist as a state under international law. The evidentiary ruling made by Judge Cardoza during a fair evidentiary proceeding has “conclusively” determined that there is a “factual (or legal) basis for concluding that the Kingdom exists as a state.” In 21 years of case law (common law), the English case has finally and conclusively answered the legal question presented by Judge Heen in the Lorenzo case in 1994.

###

The forty-one cases heard by the ICA using the Lorenzo case are: State v. French, 77 Haw. 222, 228, 883 P.2d 644, 650 (1994); Nishitani v. Baker, 82 Hawai‘i 281, 289, 921 P.2d 1182, 1190 (1996); Chalon Int’l of Haw. v. Makuaole, 95 Haw. 243, 20 P.3d 676 (2000); State v. Sherman, 95 Haw. 243, 20 P.3d 676 (2000); State v. Joshua, Haw. App. LEXIS 247 (2001); State v. Moore, Haw. App. LEXIS 242 (2001); State v. Lindsey, 98 Haw. 142, 44 P.3d 293 (2002); State v. Miyahira, 98 Haw. 287, P.3d 754 (2002); State v. Keawemauhili, 101 Haw. 330, 76 P.3d 829 (2003); Makapono Partners, LLC v. Simeona, Haw. App. LEXIS 120 (2003); State v. Araujo, 103 Haw. 508, 83 P.3d 771 (2004); Betsill Bros. Constr., Inc. v. Akahi, Haw. App. LEXIS 218 (2004); State v. Keli‘ikoa, 105 Haw. 92, 93 P.3d 1199 (2004); State v. Fergerstrom, 106 Haw. 41, 101 P.3d 225 (2004); State v. Tanaka, 106 Haw. 246, 103 P.3d 406 (2004); State v. Spinney, 106 Haw. 389, 105 P.3d 266 (2005); State v. Ball, 113 Haw. 507, 155 P.3d 690 (2007); State v. Steffey, Haw. App. LEXIS (2008); State v. Nakatsu, Haw. App. LEXIS (2008); State v. Ampong, 120 Haw. 255, 203 P.3d 675 (2009); State v. Makekau, 121 Haw. 202, 216 P.3d 128 (2009); State v. Rodenhurst, Haw. App. LEXIS 588 (2010); State v. Craig-Rodenhurst, Haw. App. LEXIS 664 (2011); State v. Kaluau, 125 Haw. 251, 258 P.3d 948 (2011); RMS Residential Properties, LLC v. Valdez, 125 Haw. 475, 264 P.3d 53 (2011); Burgo v. State, 127 Haw. 240, 277 P.3d 334 (2012); State v. Au, 128 Haw. 476, 290 P.3d 546 (2012); State v. Kawa‘auhau, 128 Haw. 477, 290 P.3d 547 (2012); Federal National Mortgage Association v. Bise, 129 Haw. 268, 297 P.3d 1124 (2013); Wells Fargo Bank N.A. v. Armitage, 129 Haw. 295, 298 P.3d 1059 (2013); Federal Home Loan Mortgage Corporation v. Griep, 129 Haw. 425, 301 P.3d 1266 (2013); Deutsche Bank National Trust Company v. Pa‘a, 130 Haw. 302, 309 P.3d 970 (2013); State v. Armitage, 129 Haw. 425, 301 P.3d 1266 (2013); Federal National Mortgage Association v. Duarte, 129 Haw. 452, 303 P.3d 1229 (2013); First Hawaiian Bank v. Kamakea, 129 Haw. 452, 303 P.3d 1229 (2013); The Bank of New York Mellon v. Velez, 129 Haw. 426, 301 P.3d 1267 (2013); U.S. Bank National Association v. Shim-Palama, 129 Haw. 427, 301 P.3d 1268 (2013); State v. Palama, 129 Haw. 428, 301 P.3d 1269 (2013); Federal National Mortgage Association v. Barros, 129 Haw. 449, 302 P.3d 717 (2013); State v. Kana‘ele, 132 Haw. 518, 323 P.3d 162 (2014); State v. Kanaka‘ole, 132 Haw. 518, 323 P.3d 162 (2014).

The six cases heard by the Supreme Court using the Lorenzo case are: State v. Lee, 90 Haw. 130, 976 P.2d 444 (1999); State v. Sinagoga, Haw. LEXIS 135 (2002); State v. Fergerstrom, Haw. LEXIS 254 (2004); State v. Rodenhurst, Haw. LEXIS 280 (2010); State v. Kaulia, 128 Haw. 479, 291 P.3d 377 (2013); State v. Armitage, 132 Haw. 36, 319 P.3d 1044 (2014).

State of Hawai‘i Judge Rules Hawaiian Kingdom Still Exists

PRESS RELEASE
FOR IMMEDIATE RELEASE
March 27, 2015

Maui Circuit Court Judge takes Judicial Notice that the Hawaiian Kingdom still Exists and State of Hawai‘i Courts lack Subject Matter Jurisdiction

HONOLULU, HAWAI‘I—Today, Dexter K. Kaiama, attorney for Kaiula Kalawe English and Robin Wainuhea Dudoit, filed a petition for a writ of mandamus with the Hawai’i Supreme Court in Honolulu seeking an order to compel Judge Joseph E. Cardoza to dismiss the Judge_Cardozacriminal cases against his clients because Judge Cardoza took judicial notice that the Hawaiian Kingdom continues to exist, which admits that the State of Hawai‘i did not have subject matter jurisdiction over the arrests and criminal proceedings. Judge Cardoza refused to dismiss the criminal complaints despite taking judicial notice that the court does not have subject matter jurisdiction.

Click here to download the Petition for Mandamus.

English and Dudoit were two of four Molokai fishermen alleged to have boarded another fishing boat from the island of O‘ahu off the coast of Molokai and threatening those on board. The Associated Press reported, “Some Molokai residents are hailing four arrested fishermen as heroes for protecting their island’s resources from outsiders.” Hanohano Na‘ehu said after the arraignment where all four fishermen pleaded not guilty, “This happening is a great way to highlight that people have been coming from different islands to Molokai to rape, pillage and raid our resources for the longest time.” He also stated, “For us on Molokai, these four individuals are heroes. All they were doing was protecting the resources for our families, for our communities, for our island.”

Dexter_KaiamaKaiama filed a motion to dismiss the criminal cases against his clients on February 6, 2015, and an evidentiary hearing was held in the Second Circuit Court in Wailuku, Island of Maui before Judge Cardoza on March 5. Kaiama’s motion to dismiss relied on the research and expertise of David Keanu Sai, Ph.D., a Hawai‘i political scientist, whose research is focused on the continued existence of the Hawaiian Kingdom as an independent state. Included in Kaiama’s motion to dismiss was an extensive legal brief authored by Dr. Sai.

Kaiama’s motion to dismiss centered on two precedent cases from the Hawai‘i Intermediate Court of Appeals (ICA), State of Hawai‘i v. Lorenzo in 1994 and Nishitani v. Baker in 1996. These cases stated that if defendants are challenging the jurisdiction of the court by claiming the Hawaiian Kingdom continues to exist today as an independent state, they have a burden to provide “a factual (or legal) basis for concluding that the Kingdom exists as a state.” If defendants are successful in providing conclusive evidence, the trial court must dismiss the case.

The Lorenzo case came on the heels of the United States Congress passing a law in 1993 apologizing for the illegal overthrow of the government of the Hawaiian Kingdom by the United States on January 17, 1893. In light of the admitted illegality by the United States, the ICA stated in the Lorenzo case, that the “illegal overthrow leaves open the question whether the present governance system should be recognized.”

Since 1994, this has been an open legal question and the Hawai‘i courts have repeatedly denied motions to dismiss because the defendants have failed to provide conclusive evidence of the Hawaiian Kingdom’s existence as a state under international law. These decisions have been routinely confirmed on appeal.

Dr. Keanu SaiAt the March 5 hearing on the island of Maui, Dr. Sai was acknowledged as an expert witness for the defense by Judge Cardoza without objection from the Deputy Prosecuting Attorney Lloyd Phelps.

Click here to download the transcript of the Evidentiary hearing, which is Exhibit “4” of the Petition for Mandamus.

After being qualified as an expert witness, Kaiama asked, “Dr. Sai, based on all of your research, based on your background and your education and this specialty, you understand that on behalf of my clients I am bringing a motion to dismiss for lack of subject matter jurisdiction?” Dr. Sai responded, “Yes.”

Kaiama then asked, “Based on all of your research and your expertise in this area, Dr. Sai, have you reached any conclusions about this, and can you tell us what your conclusions are?” In response, Dr. Sai stated, “the Court would not have subject matter jurisdiction as a result of international law.”

Kaiama then followed up with, “And if you can explain or perhaps expand on that explanation and tell us why the Court does not have subject matter jurisdiction in this case?” For the next thirty-five minutes Dr. Sai provided a historical and legal narrative that began when Great Britain and France jointly recognized the Hawaiian Kingdom as an independent state on November 28, 1843, to the current situation of the Hawaiian Kingdom being occupied by the United States today since the Spanish-American War in 1898. Dr. Sai presented facts, law and other evidence that the Hawaiian Kingdom as a state was never extinguished by the United States, and, therefore, by a principle known in international law as the presumption of continuity, the Kingdom still exists.

At no time did Deputy Prosecutor Phelps object to Dr. Sai’s expert testimony and when Judge Cardoza asked if the prosecution had any questions for Dr. Sai after Kaiama concluded his questions, Phelps stated, “Your Honor, the State has no questions of Dr. Sai. Thank you for his testimony. One Army officer to another, I appreciate your testimony.” Dr. Sai did state that he was a retired captain from the Army. Prosecutor Phelps served as a former Army Staff Judge Advocate officer.

After Dr. Sai’s testimony, Kaiama requested Judge Cardoza to take judicial notice of all the evidence of the Hawaiian Kingdom’s existence, which included Dr. Sai’s written brief. When Judge Cardoza asked, “What’s the prosecution’s position?” The prosecution responded, “No objection, your Honor.” Judge Cardoza then stated, “there being no objection, the Court will take judicial notice as requested.”

Click here to download the Dr. Sai’s legal brief titled “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom,” which is a part of Exhibit “1” of the Petition for Mandamus.

“Once judicial notice was taken of the evidence that the Hawaiian Kingdom continues to exist as a state, it is considered indisputable and true,” according to Kaiama. “Judicial notice is a very significant ruling on evidence and when the court took judicial notice, it said that it is conclusive that the Hawaiian Kingdom exists,” said Kaiama. “And according to the precedent cases of State of Hawai‘i v. Lorenzo and Nishitani v. Baker, the trial court was compelled to dismiss the criminal cases against my clients.”

Williamson_Chang“This is the first time that a judge has taken judicial notice—meaning he has accepted under the Rules of Evidence, without protest, the whole set of findings that lead to the conclusion that the Hawaiian Kingdom exists,” said Williamson Chang, a senior law professor at the University of Hawai‘i Richardson School of Law. “This is groundbreaking.”

“The point is that judicial notice is a finding that acknowledges ‘the sun rises in the East,’—a judge cannot therefore, in his decision deny this fact he took notice of and say, ‘I find that the sun rises in the West,’” explained Professor Chang. “The Court’s acceptance of the offered facts under the doctrine of judicial notice and the Court’s decision to not grant the motions to dismiss are clearly at odds. As such, attorney Dexter Kaiama was required to file a petition for mandamus to compel the judge to correct his ruling.”

In the petition for mandamus, Kaiama called the decision by Judge Cardoza a violation of common law and Hawai‘i’s plain error doctrine. In the petition plain error is defined as seriously affecting “the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” The petition is seeking an order from the Hawai‘i Supreme Court directing Judge Cardoza to immediately dismiss the criminal complaints against his clients.

“The trial court cannot disregard twenty-one years of Hawai‘i case law,” said Kaiama. “In 1994, the Intermediate Court of Appeals provided keys to the door as to whether the Hawaiian Kingdom continues to exist, and in 2015, with keys in hand, we unlocked and pushed wide open that door by conclusively proving the Hawaiian Kingdom does exist.”

###

CONTACT: Dexter K. Kaiama, Esquire
Phone: (808) 284-5675
Email: cdexk@hotmail.com

Hawai‘i Law Professor Says Justice Scalia Lacks Constitutional Knowledge

A joint resolution of Congress doesn’t empower the United States to acquire another country. Only a treaty can do that.

Professor Williamson Chang of the University of Hawai’i Williams S. Richardson School of Law as a contributor previously published this article in Civil Beat. Professor Chang has allowed this piece to be posted on this blog. Williamson Chang is a professor of Law and member of the faculty senate at the University of Hawai‘i at Manoa. Professor Chang has been teaching at the University of Hawai‘i School of Law for 37 years. He specializes in water rights, Native Hawaiian rights, the legal history of Hawai‘i and conflict of laws.

Antonin_ScaliaIn Civil Beat recently, Justice Antonin Scalia, associate justice of the U.S. Supreme Court, made two critical points on the annexation of Hawaii: First, he stated that a joint resolution of the United States could acquire the territory of Hawai‘i — a foreign, sovereign and independent nation state. Second, he stated that the Constitution permitted the use of a joint resolution instead of a treaty.

He was wrong on both points.

First, a joint resolution is merely a law, an act of Congress. It has no power to acquire the territory of a foreign, sovereign state. If such a thing were possible, Hawai‘i itself could have, by an act of its Legislature, acquired the United States. Second, the only mode by which the United States could acquire Hawai‘i, an independent and sovereign nation like the United States, would be by treaty.

Second, the acquisition of Hawai‘i by a joint resolution of Congress would undermine the Constitution. The use of a joint resolution in place of a treaty would be an “end run” around an enumerated power — the power over foreign affairs that is delegated solely to the president and the Senate. The House has no power as to foreign affairs and does not vote on or ratify treaties.

Moreover, the use of joint resolution to accomplish a treaty with a foreign sovereign undermines the super-majority required of the Senate as to the ratification of treaties. The Senate must ratify such measures by a two-thirds majority of those Senators present.

This is made clear in the U.S. Constitution, Article II, Clause 2: “[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur …”

William_McKinleyThe inability of President William McKinley to garner the necessary two-thirds vote in the Senate to ratify the Treaty of Annexation of 1897 led the administration to seek annexation by a mere act of Congress — a joint resolution. The administration could pass a joint resolution but not a treaty. This is precisely why McKinley attempted to annex by joint resolution.

Many are ignorant of or deceived about the joint resolution and the acquisition of Hawai‘i. Many do not know the specifics of Jacob Akithe U.S. Constitution or the history of Hawai‘i. Yet, we expect more from Justice Scalia, for he has great power over the future of Native Hawaiians. His exchange with Jacob Bryan Aki, as published in Civil Beat, showed a surprising lack of constitutional knowledge. Aki, a Hawaiian student at George Washington University, asked Justice Scalia the following question during a class visit to the Supreme Court on Feb. 11:

“Does the Constitution provide Congress the power to annex a foreign nation through a joint resolution rather than a treaty?”

Scalia answered by first turning the question back at Aki.  “Why would a treaty be needed,” he asked. “There is nothing in the Constitution that prohibits Congress from annexing a foreign state through the means of a joint resolution. If the joint resolution is passed through both the U.S. House and Senate, then signed by the president, it went through a ‘process.’ ”

ALLEN,_William_VincentLet us pretend that Scalia was on the floor of the U.S. Senate in the summer of 1898. Sen. William V. Allen of Nebraska and others would have reminded him that a joint resolution is only an act of Congress. It has no power to reach out and acquire foreign territory or a foreign country.

“A joint resolution if passed becomes a statute law. It has no other or greater force. It is the same as if it were entitled ‘an act.’ That is its legal classification,” said Allen. “It is therefore impossible for the government of the United States to reach across its boundaries into the dominion of another government and annex that government or the persons or property therein.

“But the United States may do so under the treaty making power, which I shall hereafter consider.”

In addition, Allen said, “Mr. President, how can a joint resolution such as this be operative? What is the legislative jurisdiction of Congress? Does it extend over Hawai‘i? May we in this anticipatory manner reach out beyond the sea and assert our authority under a resolution of Congress within the confines of that independent nation? Where is our right, our grant of power, to do this? Where do we find it?

“The joint resolution itself, it is admitted, amounts to nothing so far as carrying any effective force is concerned. It does not bring that country within our boundaries. It does not consummate itself.”

Thomas_B._TurleyMoreover, Sen. Thomas Turley of Tennessee stated:

“It is admitted that if the Joint Resolution is adopted, the Republic of Hawai‘i can determine whether or not it will accept the provisions contained in the joint resolution. In other words, the adoption of the resolution does not consummate the transaction.

“The Republic of Hawai‘i does not become a part or the territory of the United States by the adoption of the joint resolution …”

John_Coit_SpoonerSen. John Coit Spooner of Wisconsin added his view: “Of course, our power would not be extraterritorial.”

Sen. A.O. Bacon of Georgia made the same point: “Under the Sen Augustus Baconlaw of the equal sovereignty of states, one independent and sovereign nation such as the United States cannot take another nation, such as Hawai‘i, by means or its own legislative act.”

Bacon noted that if the United States could take Hawai‘i by joint resolution, it could so take Jamaica. If that were true, any nation could acquire any other. Hawai‘i could annex the United States. “If the President of the United States can do it in the case of Hawai‘i, he can with equal propriety and legality do it in the case of Jamaica …”

Sen Stephen WhiteSen. Stephen White of California noted annexation by joint resolution was unprecedented: in American history: “… there is no instance where by a joint resolution it has been attempted not only to annex a foreign land far remote from our shores, but also to annihilate a nation, to withdraw it from the sovereign societies of the world as a government.”

On the issue of the constitutionality of the use of a joint resolution, Bacon made it clear: Hawai‘i could only be acquired by a Treaty. “If Hawai‘i is to be annexed, it ought certainly to be annexed by a constitutional method; and if by a constitutional method, it cannot be annexed, no Senator ought to desire its annexation.”

Finally, Bacon — one of the most senior members of the Senate — predicted that the annexation of Hawai‘i by joint resolution would do great damage to the Constitution and the Union.

“If we pass the joint resolution, we enter upon a revolution which shall convert this country from a peaceful country into a warlike country. If we pass the resolution, we transform this country from one engaged in its own concerns into one which shall immediately proceed to intermeddle with the concerns of all the world.

“If we pass the joint resolution, we inaugurate a revolution which shall convert this country from one designed for the advancement and the prosperity and the happiness of our citizens into one which shall seek its gratification in dominion and domination and foreign acquisition.”

Native Hawaiians have forgotten that many Americans stood with them in 1898. After all, the Treaty of 1897, the only legal means for taking Hawai‘i, failed not because the Senate of the Republic of Hawai‘i failed to ratify the Treaty. It was the United States Senate that did not ratify the Treaty.

In conclusion, the joint resolution could not acquire Hawai‘i. Moreover, it was unconstitutional. Justice Scalia’s comments are evidence of the pervasive and widespread falsehoods as to annexation that have spread to the highest political and judicial offices in the United States. The myth of annexation is a deliberate deception that has oppressed the people of Hawai‘i for 122 years.

Historic quotes above are from Volume 31 of the Congressional Record pages 6142 to 6712, the verbatim record of the Senate debate in 1898.

Hawaiian Language Competition and Concert

Keauhou, Kona Kai ʻŌpua, Hawaiʻi
For Immediate Release
March 11, 2014

PŪNANA LEO O KONA HOSTS ITʻS SECOND ANNUAL HAWAIIAN LANGUAGE COMPETITION AND CONCERT

Free Event celebrates and honors Hawaiian language and Queen Liliʻuokalani

Pūnana Leo o Kona, a Hawaiian Medium Education preschool and Keauhou Shopping Center present the Second Annual ʻAha Aloha ʻŌlelo, a free family event on Saturday March 14, 2014 from 9:00am to 4:00pm at the Keauhou Shopping Center (center courtyard area).  This yearʻs free event offers a Hawaiian language competition among Hawaii Island residents and schools as well as a lineup of great Hawaiian music featuring Jon and Jamaica Osorio, Kalani Peʻa, Bulla Kaʻiliwai and Hāwane Rios.  There will be food booths, a Keiki Land that includes bouncers, slides, a petting zoo, games and much more as well as an awesome lineup of vendors, including Wahine Toa and Living Hula.

The Hawaiian Language Competition, themed “Ma Hope Mākou o Liliʻulani”, will feature students and residents of Hawaiʻi Island giving speeches in Hawaiian language based in the time of Queen Liliʻuokalani.  Students will be “tasked” with taking the 38,000 signatures gathered in 1897 by Hawaiian patriots, such as James Kaulia, David Kalauokalani, Abigail Campbell and Emma Nāwahī, and deliver them to the United States Government and present their own testimony as to why Queen Liliʻuokalani should be restored to the throne.  Students will also present memorized speeches of Kamehameha as well as the aforementioned Kaulia and Queen Liliʻuokalani.  The competition will also feature a singing portion where students will sing songs either composed by or for Queen Liliʻuokalani or a song that honors her, as well as a chant and dance portion where they will present an oli and hula of their land.

Prior to 1822, Hawaiian language was only an oral language, having no form or system of writing and reading.  Traditions and information was stored in memory and passed down from generation to generation, through stories, songs and chants.  In 1822, however, a system of writing for Hawaiian language was created and by 1840, Hawaiʻi was nearly universally literate, with a literacy rate of 97%, making Hawaiʻi the most literate country in the world when it was recognized as a sovereign and independent country by France and Great Britain through the signing of the Anglo-Franco Proclamation on November 28, 1843 at the Court of London.  Hawaiʻi had maintained this amazing and incredible literacy rate until not too long after the illegal overthrow of Queen Liliʻuokalani in 1893.  After the illegal and provisional government took over, they began to institute many forms of denationalization and Americanization of Hawaiians.  One of the many settings that this took place in was the educational system.  In 1896, the provisional government banned the use of Hawaiian language in all public schools and many, many students were punished, physically, for speaking Hawaiian in schools.  This began the decline in literacy among Hawaiians as well as caused the Hawaiian language to nearly go extinct.

In 1897, the provisional government attempted, again, to annex the Kingdom of Hawaiʻi to America, but President McKinley was unable to garner enough votes from the Senate to pass a Treaty of Annexation.  This was in large part due to the 38,000 signatures gathered by the Hawaiian patriots listed above.  It is important to note, too, though, that Queen Liliʻuokalani wrote her own letter of protest to President McKinley in 1897 that has come to be termed the “Red Ribbon Letter”.  Due to their inability to get enough votes for a treaty, in 1898 Congress passed a Joint Resolution, claiming to annex Hawaiʻi to America.  A Joint Resolution, though, is merely a domestic law that holds no authority outside the boundaries of its governing territory and therefore has no ability to annex an independent and foreign country, meaning that to this day, Hawaiʻi remains an independent country under a prolonged and illegal military occupation by the United States of America.  This yearʻs ʻAha Aloha ʻŌlelo aims to bring awareness to this point in Hawaiian history and its ramifications that continue to be felt today.

Pūnana Leo o Kona is the only Hawaiian Medium Education pre-school in Kona, Hawaiʻi.  Established in 1994, Pūnana Leo o Kona just celebrated itʻs 20th anniversary last year.  Pūnana Leo o Kona is one of 11 preschools operated throughout five islands by ʻAha Pūnana Leo, a non-profit 501©3 organization founded in 1982 to revitalize what was then a dying and nearly extinct language.  In 1982, it was estimated that less than 50 people under the age of 18 were able to fluently speak Hawaiian.  Today, the Hawaiian language continues to grow and expand as ʻAPL has graduated 4,255 families since 1984 including 237 in Kona since 1994.  Today there is an estimated 8,000 fluent Hawaiian language speakers.

E OLA KA ʻŌLELO HAWAIʻI!

###

For more information, contact:
Pūnana Leo o Kona
tel:1-808-936-4249
mailto:kahookahi@ahapunanaleo.org
Facebook: ʻAha Aloha ʻŌlelo
Twitter: @alohaolelo

Aha-Aloha-Olelo-11x17