State of Hawai‘i Judge Rules Hawaiian Kingdom Still Exists

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

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


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.



For more information, contact:
Pūnana Leo o Kona
Facebook: ʻAha Aloha ʻŌlelo
Twitter: @alohaolelo