UPDATE: Dr. Sai providing expert testimony in State of Hawai‘i v. Kinimaka that the State of Hawai‘i criminal court lacks competent jurisdiction.
Queen Lili‘uokalani was very familiar with the constitutional order of the Hawaiian Kingdom. On April 10, 1877, Lili‘uokalani was appointed by King Kalakaua as his heir-apparent and confirmed by the Nobles of the Legislative Assembly. Article 22, 1864 Constitution, provides, that the heir-apparent shall be who “the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim as such during the King’s life.”
When she was Princess and heir-apparent, she served as the executive monarch, in the capacity of Regent, for ten months when King Kalakaua departed on his world tour on January 20, 1881. Article 33 provides, “It shall be lawful for the King at any time when he may be about to absent himself from the Kingdom, to appoint a Regent or Council of Regency, who shall administer the Government in His name.” She also served as Regent when Kalakaua departed for California on November 5, 1890. On January 20, 1891, Kalakaua died in San Francisco. Nine days later, Lili‘uokalani was pronounced Queen after Kalakaua’s body returned to Honolulu on January 29.
Under Hawaiian constitutional law, the office of executive monarch is both head of state and head of government, which is unlike the British monarch, who is the head of state, and the Prime Minister is the head of government. The Hawaiian executive monarch is similar to the United States presidency. As such, she would have been very familiar with the workings of government as well as its constitutional limitations. More importantly, she would have understood the limits of United States municipal laws that were unlawfully imposed in the Hawaiian Islands in 1900, and the effect it would have on the jurisdiction of American territorial courts.
Not surprisingly, this was reflected in her deed of trust dated December 2, 1909. She stated that, “Trustees shall make an annual report to the Grantor during her lifetime, and after her death to a court of competent jurisdiction.” She further stated that, “a new trustee or trustees shall be appointed by the judge of a court of competent jurisdiction.” A court of competent jurisdiction is a court that has the legal authority to do a particular act.
Her explicit use of the term “court of competent jurisdiction” is very telling, especially when other Ali‘i trusts established under the constitutional order of the Hawaiian Kingdom, namely the Lunalilo Trust in 1874 and the Pauahi Bishop Trust in 1884, which the Queen was well aware of, specifically provided that annual reports must be given to the Supreme Court of the Hawaiian Kingdom for administrative oversight, and that the Hawaiian Supreme Court was vested with the authority to appoint the trustees.
The Queen did not state the “Supreme Court of the Territory of Hawai‘i” in her deed of trust, but rather “a court of competent jurisdiction.” These provisions in her deed of trust also imply that there are courts in Hawai‘i that are without competent jurisdiction, which were the courts of the American Territory of Hawai‘i that existed at the time she drew up her deed of trust in 1909.
The courts of the Territory of Hawai‘i derived their authority under the 1900 Act to provide a government for the Territory of Hawaii. The predecessor of the Territory of Hawai‘i was the Republic of Hawai‘i, which the United States Congress in its 1993 Joint Resolution—To acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii concluded was “self-declared.” The Republic of Hawai‘i’s predecessor was the provisional government, whom President Grover Cleveland reported to the Congress on December 18, 1893, as being “neither de facto nor de jure,” but self-declared as well. Furthermore, Queen Lili‘uokalani, in her June 20, 1894 protest to the United States referred to the provisional government as a “pretended government of the Hawaiian Islands under whatever name,” that enacted and enforced “pretended ‘laws’ subversive of the first principles of free government and utterly at variance with the traditions, history, habits, and wishes of the Hawaiian people.”
As the successor to the Territory of Hawai‘i, the courts of the State of Hawai‘i derive their authority from an Act to provide for the admission of the State of Hawaii into the Union. Both the 1900 Territorial Act and the 1959 Statehood Act are municipal laws of the United States, which is defined as pertaining “solely to the citizens and inhabitants of a state, and is thus distinguished from…international law (Black’s Law, 6th ed., p. 1018).” In order for these laws to be applied over the Hawaiian Islands, international law, which are “laws governing the legal relations between nations (Black’s Law, 6th ed., p. 816),” requires the cession of Hawaiian territory to the United States by a treaty prior to the enactment of these municipal laws. Without a treaty of cession, the Hawaiian Islands remain outside of United States territory, and therefore beyond the reach of United States municipal laws.
Oppenheim, International Law, vol. I, 285 (2nd ed.), explains that, cession of “State territory is the transfer of sovereignty over State territory by the owner State to another State.” He further states that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State (p. 286).” There exists no treaty of cession where the United States acquired the territory of the Hawaiian Islands under international law. Instead, the United States claims to have acquired the Hawaiian Islands in 1898 by a Joint Resolution—To provide for annexing the Hawaiian Islands to the United States. Like the 1900 Territorial Act and the 1959 Statehood Act, the 1898 Joint Resolution of Annexation is a municipal law of the United States, which has no effect beyond the territorial borders of the United States.
In 1936, the United States Supreme Court, in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory.” The following year, the Supreme Court, in United States v. Belmont, 301 U.S. 324, 332 (1937), again reiterated that the United States “Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens.” These two cases merely reiterated what the Supreme Court, in The Apollon, 22 U.S. 362, 370, stated in 1824 when the Court addressed whether or not a municipal law of the United States could be applied over a French ship—The Apollon, in waters outside of U.S. territory. In that case, the Supreme Court stated, “The laws of no nation can justly extend beyond its own territories except so far as regards its own citizens.”
Although the 1898 Joint Resolution of Annexation has conclusive phraseology that makes it appear that the Hawaiian Islands were indeed annexed, the act of annexation, which is the acquisition of territory from a foreign state, could not have been accomplished because it is still a municipal law of the United States that has no extraterritorial effect. In other words, a treaty is a bilateral instrument, whereby one state cedes territory to another state, thus consummating annexation in the receiving State, but the 1898 Joint Resolution of Annexation is a unilateral act that is claiming annexation occurred without a cession evidenced by a treaty.
As a replacement for a treaty that signifies consent by the ceding State, the resolution instead provides the following phrase: “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies.” In The Apollon, the Supreme Court also addressed phraseology in United States municipal laws, which is quite appropriate and instructive in the Hawaiian situation. The Supreme Court stated, “however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction to places and persons, upon whom the legislature has authority and jurisdiction (p. 370).”
It would be ninety years later, in 1988, when the United States Department of Justice, Office of Legal Counsel, would stumble over this American dilemma in a memorandum opinion written for the Legal Advisor for the Department of State regarding legal issues raised by the proposed Presidential proclamation to extend the territorial sea from a three mile limit to twelve. After concluding that only the President and not the Congress possesses “the constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States (p. 242),” the Office of Legal Counsel also concluded that it was “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea (p. 262).”
The opinion cited United States constitutional scholar Westel Woodbury Willoughby, The Constitutional Law of the United States, vol. 1, §239, 427 (2d ed.), who wrote in 1929, “The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. …Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature enacted it.” Nine years earlier in 1910, Willoughby, The Constitutional Law of the United States, vol. 1, §154, 345, wrote, “The incorporation of one sovereign State, such as was Hawaii prior to annexation, in the territory of another, is…essentially a matter falling within the domain of international relations, and, therefore, beyond the reach of legislative acts.”
Since January 17, 1893, there have been no courts of competent jurisdiction in the Hawaiian Islands. Instead, genocide has taken place through denationalization whereby the national pattern of the United States has been unlawfully imposed in the territory of an occupied sovereign State in violation of international humanitarian law.
On April 29, 2016, Dr. Keanu Sai served as an expert witness for the defense represented by Dexter Kaiama, Esquire, during an evidentiary hearing in criminal case State of Hawai‘i v. Kinimaka. Kaiama filed a motion to dismiss the criminal complaint on the grounds that the court lacks subject matter jurisdiction because the court derives its authority from the 1959 Statehood Act, which is a municipal law enacted by the United States Congress that has no effect beyond the borders of the United States.
In response to the Court denying the motion to dismiss in light of the fact that the prosecution did not refute any of the evidence provided in the evidentiary hearing, Kaiama is preparing to file a motion for interlocutory appeal to the Intermediate Court of Appeals. Because the prosecution did not provide any rebuttable evidence against the evidence presented by the defense that provided a legal and factual basis for concluding that the Hawaiian Kingdom continues to exist as an independent and sovereign State that has been under an illegal and prolonged occupation, the trial Court should have dismissed the case. If there was to be any appeal it would be the prosecution and not the defense. Denying a person of a fair and regular trial is a war crime under Article 147, 1949 Geneva Convention, IV.