WAILUKU, Hawaii – In her second letter to University of Hawaii President David Lassner, Maui County Councilmember Tamara Paltin has reiterated her concern over what appears to be the invalidity of General Lease S-4191, originally granted to University of Hawaii by the Board of Land and Natural Resources in 1968 and now subleased to TMT.
President Lassner assured Paltin in his July 18th response to her July 12th letter that “the project has all approvals required by law.” However, his brief correspondence did not address the concerns for native tenant rights and the war crime of destruction of property presented in Paltin’s original letter.
Councilmember Paltin reminded President Lassner that the general public’s understanding of Hawaii’s legal and political history has evolved significantly since the lease was originally granted to the University of Hawaii. In her latest letter, Paltin has suggested that the information that has come to light since 1968, including that found in the Apology Resolution of 1993, sets the general lease in a new context.
Referencing this new understanding of Hawaii’s legal history, Paltin wrote, “The United States Congress, in its Apology Resolution in 1993 (107 Stat. 1512), admitted…the so-called transfer of Hawaiian government and crown lands, which included the ahupua‘a of Ka‘ohe, to the United States in 1898, was done ‘without the consent of or compensation to the Native Hawaiian people of Hawai‘i or their sovereign [Hawaiian Kingdom] government.’” Therefore, because the transfer of property occurred without consent, Paltin continued, the sublease to TMT is invalid.
Councilmember Paltin once again requested that President Lassner have the University’s legal counsel review the assessment of the situation presented in her original letter and defend the validity of the general and sublease.
A full copy of Councilmember Tamara Paltin’s 07/26/19 letter to UH President Lassner can be located at mauicounty.us/paltin/.
Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” (La Ho‘iho‘i) and it is directly linked to another holiday observed on November 28th called “Independence day” (La Kuoko‘a). Here is a brief history of these two celebrated holidays.
In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”
While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe. News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.
The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.
The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.
The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.
War Crime of Destruction of Property on the Summit of Mauna Kea
According to Article 55 of the 1907 Hague Convention, IV, “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 territory. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.” As the title to Ka‘ohe remains vested in the Hawaiian government as public land there is a duty that anything done on public property must be in accordance with the rules of usufruct, which, by definition, is the “right of using and enjoying and receiving the profits of property that belongs to another.”[1]
NOTE: The international laws of occupation apply to hostile States at war with each other or occupied States that have not engaged in the war but are neutral. Belligerent occupation is a term used to apply where the territory of a foreign country is occupied without the consent of the occupied State. Neutral States, such as the Hawaiian Kingdom, can be belligerently occupied and the laws of occupation still applies.
Article 147 of the Geneva
Convention, IV, lists as a grave breach the “extensive destruction and
appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly.” This grave breach is expanded under Article 53, any “destruction
by the Occupying Power of real or personal property belonging individually or collectively
to private persons, or to the State [Hawaiian Kingdom], or to other public
authorities, or to social or cooperative organizations, is prohibited, except
where such destruction is rendered absolutely necessary by military
operations.” The Commentary to the Geneva Convention, IV, states:
In the very wide sense in which the
Article must be understood, the prohibition covers the destruction of all
property (real or personal), whether it is the private property of protected
persons (owned individually or collectively), State property, that of the
public authorities (districts, municipalities, provinces, etc.) or of
co-operative organizations. The extension of protection to public property and
to goods owned collectively, reinforces the rule already laid down in the Hague
Regulations, Articles 46 and 56 according to which private property and the
property of municipalities and of institutions dedicated to religion, charity
and education, the arts and sciences must be respected.[2]
Section 402 of the United
States Army Field Manual 27-10 provides:
Real property of the [occupied] State which is essentially of a non-military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless such destruction is rendered absolutely necessary by military operations … The occupant does not have the right of sale or unqualified use of such property. As administrator, usufructuary, he should not exercise his rights in such a wasteful and negligent manner as seriously to impair its value.
In international criminal
law, the actus reus present on Mauna Kea are the acts of destruction of
property belonging to the Hawaiian Kingdom as the Occupied State. The mens
rea requires that the perpetrator act with intent to destroy the property
and with knowledge that the owner of the property is the Hawaiian Kingdom
government. The actus reus and mens rea are met as evidenced in
the State of Hawai‘i Supreme Court decisions In the Matter of Contested Case
Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty
Meter Telescope at the Mauna Kea Science Reserve, Ka‘ohe Mauka, Hamakua, Hawai‘i,
TMK (3) 404015:009.
On October 30, 2018, the
Hawai‘i Supreme Court affirmed a decision of the Board of Land and Natural
Resources which issued a conservation district use permit for TMT near the
summit of Mauna Kea.[3] In its
decision, the majority of the court did not, because it could not, refute the claim
that “the ahupua‘a of Ka‘ohe in the District of Hamakua are lands still held by
the Hawaiian Kingdom.”[4]
Somewhat amazing was its open acknowledgement that eleven observatories built since
1970[5] on the
summit of Mauna Kea did destroy the property.
The majority stated:
Construction of these observatories and roads has had significant cumulative adverse impacts on cultural, archaeological, and historic resources in the MKSR [Mauna Kea Science Reserve]. The observatories have also had significant cumulative adverse impacts on geology, soils, and slope stability in the MKSR because they significantly modified the preexisting terrain, the tops of certain pu‘u were flattened to accommodate observatory foundations, and some materials removed from the pu‘u were pushed over their sides, creating steeper slopes more susceptible to disturbance.[6]
Associate Justice Michael
Wilson dissented from the majority of the court and filed his dissent on
November 9, 2018. At the heart of Justice Wilson’s dissent was the destruction
of the summit of Mauna Kea. He acknowledged that
the party responsible for the substantial adverse impact to this protected resource is the State of Hawai‘i (State). It is uncontested that the State authorized previous construction within the Astronomy Precinct of the MKSR that created a substantial adverse impact. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. Now the most extensive construction project yet proposed for the Astronomy Precinct—a 180-foot building 600 feet below the summit ridge of Mauna Kea—is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area.[7]
He concluded that the “substantial adverse impacts to cultural resources presently existing in the Astronomy Precinct of Mauna Kea combined with the impacts from TMT—a proposed land use that eclipses all other telescopes in magnitude—would constitute an impact on existing cultural resources that is substantial and adverse.”[8]
[2] Oscar M. Uhler,
Henri Coursier, Frédéric Siordet, Claude Pilloud, Roger Boppe, René-Jean
Wilhelm and Jean Pierre Schoenholzer, Commentary IV, Geneva Convention
relative to the Protection of Civilian Persons in Time of War, Geneva:
International Committee of the Red Cross, 1958, p. 301.
[5] The University
2.2-meter Telescope (1970), the United Kingdom Infrared Telescope
(“UKIRT”)(1979)(now owned by the University), the NASA Infrared Telescope
Facility (operated by the University)(1979), the Canada-France-Hawaiʻi
Telescope (1979); (5) the California Institute of Technology (“Caltech”) Submillimeter
Observatory (“CSO”)(1986), the James Clerk Maxwell Telescope (“JCMT”)(1986)(now
owned by the University), the Very Long Baseline Array (1992), the W. M. Keck
Observatory, first phase (1992) and second phase (1996), the Subaru Observatory
(“Subaru”)(1999), the Gemini North Observatory (1999), and the Submillimeter
Array (2002).
[6]In Re Conservation District Use Application
for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30,
2018), p. 5-6.
The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.
Invalidity of General Lease No. S-4191
Under General Lease No.
S-4191 dated June 21, 1968, the Board of Land and Natural Resources of the
State of Hawai‘i, as lessor, issued a 65-year lease to the University of
Hawai‘i with a commencement date of January 1, 1968 and a termination date of
December 31, 2033. The lease is comprised of 11,215.554 acres, more or less,
being a portion of Government lands of the ahupua‘a of Ka‘ohe situated at
Hamakua, Island of Hawai‘i identified under Tax May Key: 3rd/4.4.15:09.
The State of Hawai‘i claims
to have acquired title under Section 5(b) of the 1959 Hawai‘i Admissions Act,
Public Law 86-3 (73 Stat. 4), whereby “the United States grants to the State of
Hawaii, effective upon its admission into the Union, the United States’ title
to all public lands and other public property within the boundaries of the
State of Hawaii, title to which is held by the United States immediately prior
to its admission into the Union.” The United States derives its title from the
1898 Joint Resolution of Annexation (30 Stat. 750), which states
“Whereas the Government of the Republic of Hawaii having, in due form,
signified its consent, in the manner provided by its constitution…to cede and
transfer to the United States the absolute fee and ownership of all public,
Government, or Crown lands.”
The Republic of Hawai‘i proclaimed
itself on July 3, 1894, by a convention comprised of appointed members of the
Provisional Government and eighteen “elected” delegates. The Provisional
Government proclaimed itself on January 17, 1893 and claimed to be the
successor of the Hawaiian Kingdom. The Hawaiian Kingdom’s title derives from
the 1848 Act Relating to the Lands of His Majesty The King and of the
Government, whereby the ahupua‘a of Ka‘ohe is “Made over to the Chiefs and
People, by our Sovereign Lord the King, and we do hereby declare those lands to
be set apart as the lands of the Hawaiian Government, subject always to the
rights of tenants.”
According to President Grover
Cleveland, in his message to the Congress after investigating the illegal
overthrow of the Hawaiian Kingdom government that took place on January 17,
1893, the Provisional Government “was neither a government de facto nor de
jure.”[1] He did
not consider it a government. The President also concluded that “the
provisional government owes its existence to an armed invasion by the United
States.”[2] Being a
creature, or creation, of the US, it could not claim to be the lawful successor
of the Hawaiian Kingdom government with vested title to the ahupua‘a of Ka‘ohe.
As the successor to the Provisional Government, the Republic of Hawai‘i, as it
self-declared successor, could not take any better title than the Provisional
Government and hence did not have title to Ka‘ohe. The U.S. Congress in the
1993 Apology Resolution noted that the Republic of Hawai‘i was “self-declared.”[3]
The United States claims to
have acquired title to Ka‘ohe, by cession, from the Republic of Hawai‘i under
the 1898 Joint Resolution of Annexation. International law recognizes 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.”[4] The Joint Resolution of
Annexation is not “an agreement embodied in a treaty.” It is a U.S. municipal
law from the Congress merely asserting that cession took place. The situation
is not unlike a neighbor holding a family meeting and claiming that they have
agreed that your house is now their house.
In a debate on the Senate
floor on July 4, 1898, Senator William Allen stated:
The Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated. In other words, the Constitution and statutes can not reach across the territorial boundaries of the United States into the territorial domain of another government and affect that government or persons or property therein.[5]
The joint resolution is ipso facto null and void.[6]
In 1988, the U.S. Department
of Justice, Office of Legal Counsel (“OLC”) issued a legal opinion on the
lawfulness of the annexation of Hawai‘i by a joint resolution.[7] In its
opinion, it cited constitutional scholar Westel Willoughby:
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 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 it is enacted.[8]
The OLC concluded, “It is
therefore 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.”[9] The United States cannot produce
any evidence of a conveyance of the ahupua‘a of Ka‘ohe from a grantor, vested
with the title. All it can produce is a joint resolution of Congress. This is
not a conveyance from a foreign State ceding territory.
Instead of providing evidence
of a conveyance of territory, i.e. treaty of cession, the State of Hawai‘i
Supreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT,
SCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of
Hawai‘i written by Professor Jon Van Dyke.
The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawaiʻi by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196 (1901), that “territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.[10]
It is unclear what Professor
Van Dyke meant when he stated that the U.S. Supreme Court “gave tacit
recognition to the legitimacy of the annexation of Texas and Hawai‘i by joint
resolution,” because tacit, by definition, is to be “understood without being
openly expressed or stated.”[11]
Furthermore, this statement is twice irrelevant: first, the Court as a third
party to any cession of foreign territory has no standing to make such a
conclusion as to what occurred between the ceding and receiving States; and,
second, its opinion is a fabrication or what American jurisprudence calls a
legal fiction. Legal fictions treat “as true a factual assertion that plainly
was false, generally as a means to avoid changing a legal rule that required a
particular factual predicate for its application.”[12]
According to Professor Smith,
a “judge deploys a new legal fiction when he relies in crafting a legal rule on
a factual premise that is false or inaccurate.”[13] These “new legal fictions
often serve a legitimating function, and judges may preserve them—even in the
face of evidence that they are false—if their abandonment would have
delegitimating consequences.”[14]
The proposition that Texas
and Hawai‘i were both annexed by joint resolutions of Congress is clearly
false. In the case of Texas, Congress consented to the admission of Texas as a
State by joint resolution on March 1, 1845 with the following proviso, “Said
State to be formed, subject to the adjustment by this government of all
questions of boundary that may arise with other governments.” This condition
was referring to Mexico because as Texas was comprised of insurgents who were
fighting for their independence, Mexico still retained sovereignty and title to
the land. In its follow up joint resolution on December 29, 1845 that admitted
Texas as a State of the Union, it did state that the Congress consented “that
the territory properly included within, and rightfully belonging to, the
Republic of Texas.” These actions taken by the Congress is what sparked the
Mexican-American War in 1846.
Congress’ statement of
“rightfully belonging” is an opinion and the resolution mentions no boundaries.
The transfer of title to the territory, which included the territory comprising
Texas, came three years later on February 2, 1848 in a treaty of peace that
ended the Mexican-American War.
Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. “The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte.”[15] Rio Brava del Norte is the southern tip of Texas. If Texas was indeed annexed in 1845 by a joint resolution with its territory intact, there was no reason for the treaty to specifically include the territory of Texas. If it were true that Texas territory was ceded in 1845, Article V of the treaty would have started the boundary line just west of the Texas city of El Paso, which is its western border, and not from the Gulf of Mexico at its southern border. The truth is that the territory of Texas was not annexed by Congress in 1845 but was ceded by Mexico in 1848. The Rio Grande river is the southern border for the State of Texas.
With regard to the so-called
annexation of Hawai‘i in 1898 by Congress, there is no treaty ceding Hawaiian
territory as in the case of Texas. Like the Texas resolution, Congress stated,
Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution to ceded 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, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining…
The reference to consent by
its constitution is specifically referring to Article 32, which states, the
“President, with the approval of the Cabinet, is hereby expressly authorized
and empowered to make a Treaty of Political or Commercial Union between the
Republic of Hawaii and the United States of America, subject to the
ratification of the Senate.”[16] There
is no treaty between the so-called Republic of Hawai‘i and the United States.
Furthermore, a constitutional provision is not an instrument of conveyance as a
treaty would be. So without a treaty from the Hawaiian Kingdom government as
the ceding State vested with the sovereignty and title to government lands,
which includes the ahupua‘a of Ka‘ohe, there was no change in the ownership of
the government lands.
Furthermore, Hawaiians of the
day knew there was no treaty as evidenced in the Maui News newspaper published
October 20, 1900. The Editor wrote,
Thomas Clark, a candidate for Territorial senator from Maui holds that it was an unconstitutional proceeding on the part of the United States to annex the Islands without a treaty, and that as a matter of fact, the Island[s] are not annexed, and cannot be, and that if the democrats come into power they will show the thing up in its true light and demonstrate that that the Islands are de facto independent at the present time.
The legal fiction that Texas
and Hawai‘i were annexed by a joint resolution of the Congress is just a patently
false when measured “against the results of existing empirical research.”[17] For
the State of Hawai‘i Supreme Court to restate, and embrace, this falsifiable
legal fiction is simply a trick that allows it to fabricate its own false and falsifiable
fiction regarding the State of Hawai‘i. In its TMT decision the Court, in conflict
with overwhelming evidence, stated, “[W]e reaffirm that ‘[w]hatever may be said
regarding the lawfulness’ of its origins, ‘the State of Hawai‘i…is now a lawful
government.’”[18] For
the State of Hawai‘i to be a “lawful government” it must be vested with lawful
authority absent of which it is not lawful. The State of Hawai‘i Supreme Court,
being a branch of the State of Hawai‘i itself, cannot declare it “is now a
lawful government” without making reference to some intervening factor that
vested the State of Hawai‘i with lawful authority.
When addressing the lawful
authority and sovereignty of the United States of America, the United States
Supreme Court specifically referred to a particular and significant intervening
factor. It stated that as “a result of the separation from Great Britain by the
Colonies, acting as a unit, the powers of external sovereignty passed from the
Crown not to the Colonies severally, but to the Colonies in their collective
and corporate capacity as the United States of America.” The Court was
referring to “the Treaty of Paris of September 3, 1783, by which Great Britain
recognized the independence of the United States.”[19]
It has been erroneously assumed
that the US Congress vested the State of Hawai‘i with lawful authority in the
1959 Statehood Act[20] in an
exercise of the constitutional authority of Congress to admit new States into
the Federal union under Article IV, section 3, clause 1. There is no provision
in the US constitution for the admission of a state to the union that is on
territory not owned by the US. So before the US Congress can admit a new State
to the US the US must “own” the territory. According to the United States
Supreme Court:
Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens…, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.[21]
Since the Hawaiian Islands
were never annexed by the United States via treaty, Congressional acts, which are
municipal laws, may only operate on the territory of the United States. The
United States Supreme Court is relatively clear on this point and has stated
that the “municipal laws of one nation do not extend in their operation beyond
its own territory except as regards its own citizens.”[22] In another decision, the
United States Supreme Court reiterated, that “our Constitution, laws and
policies have no extraterritorial operation unless in respect of our own
citizens.”[23]
Under international law, the United
States is an occupying power in the Hawaiian Islands and as such the occupying
Power is obligated, under Article 43 of the 1907 Hague Convention, IV, and
Article 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom
laws. In his communication to the members of the Judiciary of the State of
Hawai‘i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred
deZayas, reiterated this obligation under international law.
I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States) (Enclosure “6”).
The United States never
acquired any kind of title to Ka‘ohe and, since one can only convey what one
has, it could not convey what it did not have to the State of Hawai‘i under
Section 5(b) of the 1959 Admissions Act. Thus the State of Hawai‘i was never
lawfully vested with any title 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
defective. Under Hawaiian Kingdom law, the ahupua‘a of Ka‘ohe is government
land under the management of the Ministry of
the Interior and not the State of Hawai‘i Board of Land and Natural
Resources. Consequently, all 10 subleases from the University of Hawai‘i that
extend to December 31, 2033 are defective as well, which include:
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.
As such, the University of Hawai‘i’s sublease to TMT International Observatory, LLC, is also defective. Therefore, the University of Hawai‘i cannot sublease what it does not have to TMT International Observatory LLC.
[7] Douglas Kmiec,
Department of Justice, “Legal Issues Raised by Proposed Presidential
Proclamation to Extend the Territorial Sea,” 12 Opinions of the Office of Legal Counsel 238 (1988).
Today David Ige reaffirmed the State of Hawaiʻi’s commitment to ensure the construction of the Thirty Meter Telescope on Maunakea beginning Monday, July 15, 2019. Ige also reaffirmed the State’s commitment to protect the interests of foreign, private corporations rather than the rights of the people of Hawaiʻi through a long, coordinated and organized mass mobilization of Hawaʻi law enforcement at the expense of Hawaiʻi tax-payers.
ʻAkahi, Kanaka Maoli have never given consent to the construction of the TMT on Maunakea. In fact, we have overwhelmingly demonstrated our opposition to the construction of the TMT in every venue; court cases, testimonies, declarations, hearings, forums, and community meetings. The most explicit examples were the series of large protests and arrests of dozens of Kiaʻi (Protectors) on Maunakea which physically halted the construction of the TMT in 2015.
ʻAlua, Kanaka Maoli reassert our rights to our national crown and government lands. The TMT Corporation has no interest or ownership in the land. The summit of Maunakea, specifically the exact location where the TMT Corporation hopes to build their telescope, are national lands of Kanaka Maoli. Indeed, the TMT Corporation has a mere sublease from the University of Hawaiʻi.
ʻAkolu, we reaffirm that Maunakea is sacred to Kanaka Maoli. The summit of Maunakea is kapu as the highest point in the Pacific. Therefore, like all humanity, we have sacred places that should be recognized and protected.
ʻAhā, we emphasize that the summit of Maunakea is a conservation district. It is environmentally sensitive and pristine. Yet the TMT Corporation plans to build a telescope that is over 180 feet tall in a place that lawfully should be afforded the highest level of environmental protection as a recognized conservation district.
ʻAlima,Kanaka Maoli will continue to assert and increase stewardship of Mauna Kea. We affirm our rights as hoaʻāina to access and manage our national lands, to practice our religion and culture and to protect these lands from further destruction and desecration.
Therefore, while the TMT Corporation and the State of Hawaiʻi continue to ignore our massive opposition and existence as a living people, Kanaka Maoli have no other choice but to engage in peaceful and nonviolent direct action.
We will forever fight the TMT, until the last aloha ʻāina. Truth and history are on our side, and our commitment and mana is only rising. We are prepared for intense and lengthy struggles but stand firm in Kapu Aloha – peace and nonviolence. We ask everyone to honor this kuleana and to conduct ourselves in PONO.
WAILUKU, Hawaii – In an urgent plea, Maui County Council member Tamara Paltin announced that she has asked University of Hawaii President David Lassner to put a hold on moving forward with the construction of the Thirty Meter Telescope (“TMT”) planned for the summit of Mauna Kea.
Paltin issued a letter of inquiry to President Lassner on Friday, July 12th in response to Governor Ige’s news conference last week announcing that construction would begin next week on July 15th. In her letter Paltin expressed “grave concerns for the safety of Maui County’s residents and all individuals mobilizing to access and assemble atop Mauna Kea.”
It is anticipated that kupuna to keiki and all ages in betweenfrom all islands will be present to exercise traditional Native Hawaiian cultural and religious access, as well as protest the construction of the TMT. With emotions high, extreme weather conditions, law enforcement presence and talk of the potential deployment of LRAD (Long-Range Acoustic Hailing Devices) for crowd control, Councilmember Paltin fears for the safety and protection of all who will be present on the summit.
Councilmember Paltin sought out insight from Dr. Keanu Sai who has served as a resource for and provided training presentations to the Council’s Planning and Sustainable Land Use Committee, of which Paltin chairs, concerning the proposed construction of the TMT on the summit of Mauna Kea, in light of the ahupua`a of Ka`ohe being so-called ceded lands.
Paltin’s letter reiterates Dr. Sai’s focus on three topics underlying the proposed TMT construction: the invalidity of General Lease No. S-4191 between the State of Hawai`i Board of Land and Natural Resources, as the lessor, and the University of Hawai`i, as the lessee; the war crime of destruction of property on the summit of Mauna Kea by the previous telescopes; and the third topic of native tenant rights within the ahupua`a of Ka`ohe, and describes Dr. Sai’s response as “quite illuminating to say the least.”
Councilmember Paltin requested that President Lassner have the University’s legal counsel review Dr. Sai’s assessment of the situation, and stated that, “this is not a political issue, but an issue of the rule of law, which is foundational, and for our communities throughout the islands to have confidence that the State of Hawai`i officials, to include the Counties, believe in and abide by.”
A full copy of Councilmember Tamara Paltin’s letter to UH President Lassner can be located at mauicounty.us/paltin/.
For more information, please contact Councilmember Paltin’s office.
