Press Release: WPLC, IADL, and NLG file joint Amicus Brief Supporting the Hawaiian Kingdom’s Complaint Against the US Requesting a Declaratory Judgment and Effective End of U.S. Occupation

July 30, 2021


Natali Segovia, Staff Attorney, WPLC:

NLG International Committee:

Download the amicus brief here.

Honolulu—The Water Protector Legal Collective (WPLC), alongside the International Association of Democratic Lawyers (IADL) and National Lawyers Guild (NLG), filed an amicus curiae (“friend of the court”) brief today in support of the Hawaiian Kingdom’s complaint against the United States government, President Joe Biden, and other defendants, due to the unlawful occupation of Hawai‘i by the United States since January 17, 1893. The complaint and the amicus brief request Declaratory and Injunctive Relief, namely for the US to end the occupation of the Hawaiian Kingdom. 

Hawai‘i has been illegally occupied by the US since 1893, when businessmen and politicians helped John Stevens overthrow Queen Lili‘uokalani and the Hawaiian government. One-hundred years later, President Clinton would apologize and the US would acknowledge that Hawaiian Kingdom never relinquished their land. That is not enough. The people of the Hawaiian Kingdom have remained continuously opposed to the illegal occupation of the US and its effects, including de-nationalization, the exploitation of natural resources, legacy of racial unrest sown by colonialism, and over-tourism at the expense of Native Hawaiians. 

Mr. Dexter Ke`eaumoku Ka`iama, Acting Attorney General for the Hawaiian Kingdom who filed the original complaint, described the amicus brief filed by the three legal organizations: “The amicus transcends over 128 years of the illegal occupation of the Hawaiian Kingdom, the violations of international law and international humanitarian law and political pressures and trappings brought to maintain this illegality.  Instead, the amicus rightly directs our attention to the undisputed history of the Hawaiian Kingdom and proper application of international law, US Constitutional law and compacts (treaties) between the sovereign States of the Hawaiian Kingdom and the United States.” 

While relief in this matter would seemingly be barred by the political question doctrine, the amicus brief states the federal and state courts of Hawai’i are de facto Article II courts since 1893 because the US occupation of the Hawaiian Kingdom has never ended or been resolved through an operative peace treaty. Experts in international law and human rights have determined that without some type of transfer of sovereignty, the Hawaiian Kingdom and its people have the sole right to that land. There is judicial precedent of at least 12 Article II executive “occupation” courts in U.S. legal and political history since the Mexican War in 1846, provisional courts during the Civil War, and through 1971 when the United States returned Okinawa and Ryukyu Islands to Japan after WWII. 

“At its core,” says WPLC Staff Attorney Natali Segovia, “this case is about the sovereignty of the Hawaiian Kingdom and the right of self-determination of an entire Nation. I don’t mean luke-warm self-determination within the boundaries of a settler state; I mean the self-determination that is at the heart of international law: the right of nations to self-govern to freely determine their political status, their economic, social, and cultural development within their own territory. Standing Rock, Line 3, and the #Landback movement share this in common. WPLC began at Standing Rock, where the fight for the water and for future generations was a manifestation and exercise of self-determination of the Oceti Sakowin Oyate and Indigenous Peoples and allies around the world that answered their call. WPLC is committed to supporting those struggles for sovereignty and self-determination of Indigenous Peoples and Original Nations wherever we can.” 

“As an organization that values human rights and the rights of ecosystems over property interests, the NLG supports all Native peoples’ right to self-determination and resistance against settler-colonial oppression—whether it be in Palestine, Standing Rock, or Hawai’i. The US is no exception to standards set by international and humanitarian law, and must end its occupation of the Hawaiian Kingdom,” said NLG President Elena Cohen.

IADL President Jeanne Mirer said, “As an international organization of human rights lawyers dedicated to the furtherance of peace, justice, and the rule of law, the IADL reiterates its support for the Hawaiian Kingdom and the people of Hawai‘i in their ongoing struggle for sovereignty, and self-determination. The United States has an obligation to comply with international humanitarian law and the law of occupation.”

Mr. Ka`iama concluded, “Filing of the amicus coincides with the formal restoration of the Hawaiian Kingdom from the British Government on July 31, 1843.  A day that is remembered and celebrated as Lā Hoʻihoʻi Ea (“Restoration Day”).  So too, this amicus will be forever marked and fondly remembered in the annals of the Hawaiian Kingdom. Aloha ‘Āina.” 

“Aloha ‘Āina” is Hawaiian for “love of the land.” As legal organizations committed to human rights, international law, and the rule of law, we stand — for the land, for the water, and for future generations.

Counsel for Amici Curiae NLG, IADL, and WPLC are Natali Segovia, Joseph (Joey) Chase, and Charles Heaukulani.

#Landback #HawaiianKingdom #AlohaAina

The International Association of Democratic Lawyers (“IADL”) is an international organization of human rights lawyers and jurists founded in 1946, with member associations and individual members in over 90 countries and with consultative status in ECOSOC. IADL is dedicated to upholding international law and promoting the tenets of the UN Charter in furtherance of peace and justice. 

The National Lawyers Guild (“NLG”) was formed in 1937 as the first national racially integrated bar association in the U.S. to advocate for the protection of constitutional, human, and civil rights.

The Water Protector Legal Collective (“WPLC”) is an Indigenous-led legal non-profit organization that began in 2016 as the on-the-ground legal team at Oceti Sakowin camp at Standing Rock in defense of Water Protectors in frontline resistance to the Dakota Access Pipeline. WPLC continues to provide legal support and advocacy to Indigenous Peoples and Original Nations, the Earth, and climate justice movements.

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The International Association of Democratic Lawyers and the National Lawyers Guild Enter Hawaiian Kingdom v. Biden Federal Court Case

The International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) entered the federal case of Hawaiian Kingdom v. Biden, et al., at the United States District Court for the District of Hawai‘i. This morning, the three organizations collectively filed a “Motion for Leave to File Amicus Curiae Brief on Behalf of Nongovernmental Organizations with Expertise in International Law and Human Rights Law.” Lawyers for the IADL, NLG and WPLC, are Natali Segovia, Joseph Chase, and Charles Heaukulani. Segovia and Chase are also members of the NLG.

The Legal Information Institute explains that amicus curiae is “Latin for ‘friend of the court.’ Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court’s decision. Such briefs are called ‘amicus briefs.’”

The Motion states:

Counsel for amici curiae International Association for Democratic Lawyers, National Lawyers Guild, and the Water Protector Legal Collective—nongovernmental organizations with expertise in International Law and Human Rights Law, hereby move this Court for an order allowing it to file the attached amicus curiae brief in support of Plaintiff, the Hawaiian Kingdom. In support of this motion, the movant states:

1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.

2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.

3. Plaintiff has consented to the filing of this brief. Defendant County of Kaua‘i has indicated it opposes the filing of this brief. Other Defendants have either not taken a position or not entered an appearance in this case.

4. For the foregoing reasons, we respectfully request the Court’s permission to file the amicus brief attached hereto. In the alternative, we request a pre-motion conference with the Court for leave to file such a brief.

The IADL/NLG/WPLC supports the Hawaiian Kingdom’s position that since the U.S. District Court is located within the territory of the Hawaiian Kingdom and not within the territory of the United States, it’s authority can only come as an Article II Court and not an Article III Court. Articles II and III refers to the U.S. Constitution where Article II describes the authority of the President and Article III describes the authority of the Supreme Court and the lower federal courts. According to Professor Bederman, who authored a law article titled “Article II Courts,”:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his consequent war-making authority.

Article II courts were established in Germany after the Nazis surrendered in 1945. Since then, western Germany was occupied by the United States, France and Great Britain until 1955 when a treaty of peace came into effect between Germany and the three occupying States that changed the state of affairs under international law from a state of war to a state of peace. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “all offenses against the laws and usages of war, all offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, and all offenses under the laws of the occupied territory or any part thereof.”

In its amicus, the IADL/NLG/WPLC explain, “Most importantly, functioning as an Article II court here would not undermine all this Court’s past judgments; previous judgments and laws of the United States would remain in effect unless they are at odds with the laws of the occupied Hawaiian Kingdom.” They then cite the 2014 proclamation of the Council of Regency of the Hawaiian Kingdom’s Provisional Laws:

We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.

The amicus concludes with:

Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning. Recognition of the prolonged occupation of the Hawaiian Kingdom by the United States through Declaratory Judgment is not only a redressable claim, it is long overdue and would only be consistent with what is already known to the international community and clear under international law. Additionally, granting the Hawaiian Kingdom injunctive relief would acknowledge the Kingdom’s continuous sovereignty, mitigate the United States’ liability for its war crimes against the Hawaiian people, and apply local law as required of an occupying power by the international law of war. Acknowledging extraterritoriality and occupation would have the practical effect of applying the laws of the Hawaiian Kingdom but as was the case with prior occupation courts, this would not nullify any prior decisions of any of the courts currently operating in Hawai‘i, so long as they are not inconsistent with local law.

Czech Republic Closes Its Hawai‘i Consulate As a Result of the Hawaiian Kingdom’s Complaint Alleging an Internationally Wrongful Act

In a letter dated July 14, 2021, to Magistrate Judge Rom A. Trader who is presiding over the federal case of Hawaiian Kingdom v. Biden, et al., the Czech Republic’s Deputy Consul General in Los Angeles, Josef Smycek, wrote:

In Case #CV 21-00243LEK-RT (Civil Action No. 1-21-cv-00243), the Honorary Consul of the Czech Republic in Honolulu, Ms. Ann Suzuki Ching, received “Notice of a lawsuit and request to waive service of a summons,” and “Waiver of the service of summons,” both issued by the United States District Court for the District of Hawaii [in Hawaiian Kingdom v. Biden, et al.].

Ms. Ching referred the Notice/Waiver to the Consulate General of the Czech Republic in Los Angeles, her overseeing (career) consulate.

Our Consulate General consulted the Notice/Waiver with the Ministry of Foreign Affairs of the Czech Republic in Prague.

As a formal response to the Notice/Waiver, the Embassy of the Czech Republic in Washington, DC, issued a Note Verbale to the US Department of State (Note no. 2101-1/2021-Wash of June 30, 2021.

While it is expected that the US Department of State will notify the Court about the contents of said Note Verbale, for the sake of good order, informally, I am attaching a scan of the Note Verbale to this e-email for your reference, in particular ahead of the telephonic hearing of the Case, scheduled for July 19, 2021.

I also wish to inform you that all consular functions of Ms. Ching terminated on June 30, 2021, and the Honorary Consulate of the Czech Republic in Honolulu is temporarily closed.

Thank you in advance for confirming the receipt of this e-mail and of the scan of the Note Verbale in enclosure.

The Czech Republic is a member of the Consular Corps Hawai‘i along with 37 other foreign consulates in Hawai‘i. The closure of the Czech Republic’s Consulate in Hawai‘i was in direct response to paragraphs 99-101 of the Hawaiian Kingdom’s Complaint filed with the U.S. District Court of Hawai‘i on May 20, 2021. In its Complaint, which included the Czech Republic’s Honorary Consulate as a defendant, the Hawaiian Kingdom stated:

“99. The Consular Corps Hawai‘i is comprised of 38 countries, 32 of which are also members of the PCA Administrative Council in The Hague, Netherlands. These countries include, Australia, Austria, Bangladesh, Belgium, Brazil, Chile, Czech Republic, Denmark, Finland, France, Germany, Hungary, India, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Norway, Philippines, Poland, Portugal, Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, Thailand and the United Kingdom via the Australian Consulate.

100. §458 of the Hawaiian Civil Code states, ‘[n]o foreign consul, or consular or commercial agent shall be authorized to act as such, or entitled to recover his fees and perquisites in the courts of this Kingdom, until he shall have received his exequatur.’ These consulates have not presented their credentials to the HAWAIIAN KINGDOM in order to receive exequaturs but rather received their exequaturs from the Defendant UNITED STATES OF AMERICA under the municipal laws of the United States.

101. In diplomatic packages sent to the foreign embassies in Washington, D.C., that maintain consulates in the territory of the HAWAIIAN KINGDOM by DAVID KEANU SAI, as Minister of Foreign Affairs ad interim, on April 15th and 20th of 2021, the Ambassadors were notified that their Consulates ‘within the territory of the Hawaiian Kingdom is by virtue of ‘American municipal laws,’ which stand in violation of Hawaiian sovereignty and independence, and, therefore constitutes an internationally wrongful act.’ The diplomatic note further stated that the ‘Council of Regency acknowledges that [foreign] nationals should be afforded remedial prescriptions regarding defects in their real estate holdings that have resulted from the illegal occupation in accordance with ‘laws and established customs’ of the Hawaiian Kingdom.’ This subject is covered in the Royal Commission of Inquiry’s Preliminary Report re Legal Status of Land Titles throughout the Realm and its Supplemental Report re Title Insurance.’”

The diplomatic packages referred to in paragraph 101 of the Complaint included a letter to the Czech Republic’s Ambassador His Excellency Hynek Kmoníček dated April 20 2021. In its recent filing with the U.S. District Court this past Friday (July 23, 2021), the Hawaiian Kingdom addressed the closing of the Czech Republic’s Consulate by stating:

“The maintenance of Defendant foreign Consulates in the territory of the Hawaiian Kingdom also constitutes acts of belligerency. Regarding the Czech Republic’s recent letter to this Court announcing the temporary closure of its Honorary Consulate in the Hawaiian Kingdom on June 30, 2021, the Hawaiian Kingdom acknowledges this act to be in conformity with Article 30(a) and (b) of Responsibility of States for Internationally Wrongful Acts (2001), whereby ‘[t]he State responsible for the internationally wrongful act is under an obligation (a) to cease that act, if it is continuing [and] (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.’”

UPDATE: UCC Synod Changes Decision, Passes Resolution on Occupied Hawai‘i

Synod changes decision, passes resolution on occupied Hawaii

by Hans Holznagel | published on Jul 18, 2021

Here is the link to the amended resolution “Encouraging to End 128 years of of War between the United States of America and the Hawaiian Kingdom” that was passed.

The governing body of the United Church of Christ doesn’t usually change its mind about a vote it has taken. On July 18, it did.

General Synod delegates voted to reconsider a resolution about Hawaii that they had narrowly defeated the day before. This time the resolution got 72.9 percent approval — comfortably more than the two-thirds required to pass. The vote was 328-122, with 34 abstentions.

The resolution calls on church leaders to ask that the U.S. recognize its own presence in Hawaii as an “illegal occupation” according to international law. On July 17, a majority — but not the needed super-majority — had voted for it.

The resolution had come to Synod from the UCC’s Association of Hawaiian Evangelical Churches, made up of 31 historically Native Hawaiian congregations from across Hawaii. Some 80 percent of them were founded before 1893, the year the United States took Hawaii by military overthrow.

What it calls for

Now that it has passed, the resolution charges the UCC’s general counsel with communicating the church’s position to government agencies. First, the counsel is to “listen to and consider recommendations” from AHEC, “other Native Hawaiian organizations, and Native Hawaiian voices.” Then it is to draft “communications to local, national and international leaders and organizations calling for compliance with international humanitarian law and an end to the illegal occupation of the Hawaiian islands.”

AHEC spelled out the case for that position in submitting its resolution months ago.

As amended by delegates in a two-day process at Synod, the resolution also:

  • Calls on “all settings of the church … to live into the 1993 apology of the United Church of Christ delivered to the Native Hawaiian people”
  • Reaffirms the Synod’s commitment “to stand alongside and in support of the efforts of Native Hawaiians to seek redress and restitution for the war crimes of the U.S. against the Hawaiian Kingdom including, but not limited to, the crime of denationalization”
  • Asks for “a written and oral update on the progress on the implementation of this resolution” at the 2023 Synod.
Synod delegates reconsider the resolution during their July 18 plenary session.

The Rethink

The Synod’s rethink followed numerous points of order and points of personal privilege raised by delegates. Several said they felt the July 17 floor debate had been unfairly cut short — though Moderator Penny Lowes pointed out that the delegates themselves had defeated a motion to extend debate in that Saturday session. What succeeded on Jan. 18 — after much parliamentary analysis — was a formal motion to reconsider.

Gloria-Ann Muraki, an AHEC member and a Synod delegate from the UCC Board who spoke to the resolution in committee and on the floor, saw a higher power at work in the process.

She said the AHEC committee that originally wrote the resolution had been meeting since its July 17 defeat. “We have been reminding ourselves that we have to keep our faith in Ke Akua (God),” she said. “And that is what happened on the floor of the General Synod. We thank everyone, and it’s given us renewed faith in the UCC and its process.”