There is a common misunderstanding among the world that Hawai‘i is the 50th state of the American union. The historical and legal revealing of evidence that Hawai‘i is not the 50th state, but rather the continued existence of the Hawaiian Kingdom as an independent State, has shattered this belief for those who have come to know. To better understand the why, here is the history of the formation of the 49 States of the American union that many don’t know.
All 49 states of the American union were acquired through international law because these territories were formerly the territories of other independent States. The first 13 states, which were formerly British Crown colonies, were acquired from the British Crown by the 1783 Treaty of Paris that brought the revolution to an end. Article I provided, “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.”
In 1789, as a result of the federalist movement, these 13 sovereign and independent States collectively gave their independence to the federal government, which came to be known as the American union. These states held what was referred to as residual sovereignty but no longer retained independence. The instrument that formed this union was the federal constitution. Prior to this consolidation, these independent States were in a loose union called a confederacy according to the terms of the 1777 Articles of Confederation.
The other states of the union were formed out of territories acquired by the federal government through international treaties, with the exception of Hawai‘i, which was unilaterally annexed by a congressional statute in 1898.
There is also a common misunderstanding that the State of Texas came about as a result of a joint resolution of Congress in 1845. The truth of the matter is that this congressional action is what sparked the Mexican-American war in 1846. The State of Texas was on Mexican territory and not United States territory. In the 1848 Peace Treaty of Guadalupe Hidalgo that ended the war, the new border between the two Republics began from the Gulf of Mexico along the Rio Grande river, which is the southern border of the State of Texas, then by a surveyed boundary line that runs along the southern borders of what are now States of New Mexico, Arizona and California. Article V of the 1848 Treaty of Guadalupe Hidalgo states:
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, or Opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.
If Texas was annexed in 1845, then the boundary would not have begun from the Gulf of Mexico, but rather from the surveyed boundary line that would have begun from the mid-southern border of what is now the State of New Mexico, which is adjacent to the city of El Paso, Texas. From El Paso, the Rio Grande river goes north into the State of New Mexico.
In 1988, the Department of Justice’s Office of Legal Counsel (OLC) published a legal opinion regarding the annexation of Hawai‘i. The OLC’s memorandum opinion was 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 miles. The OLC concluded 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.” As Justice Marshall stated, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” and not the Congress.
The OLC also stated, “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The OLC then concluded that it is “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.”
That territorial sea referred to by the OLC was to be extended from three to twelve miles under the 1982 United Nations Law of the Sea Convention. In other words, the Congress could not extend the territorial sea an additional nine miles by statute because its authority was limited up to the three-mile limit. Furthermore, the United States Supreme Court, in The Apollon, concluded that the “laws of no nation can justly extend beyond its own territories.”
Arriving at this conclusion, the OLC cited constitutional scholar Professor 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 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.” Professor Willoughby also stated, “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.”
Under international law, what was illegally overthrown on January 17, 1893, was the Hawaiian Kingdom government and not the Hawaiian Kingdom as an independent State. International law distinguishes between the independent State and its government. For one State to acquire the territory of another State there needs to be a treaty like the United States treaty of cessions with Great Britain, France, Mexico, Russia and Spain. When the United States unilaterally annexed Hawai‘i by a congressional joint resolution in 1898, the act was no different than Iraq unilaterally annexing Kuwait in 1990 during the First Gulf War, or Nazi Germany unilaterally annexing Luxembourg during the Second World War. Both were illegal under international law and so is the annexation of Hawai‘i.
In 1997, the Hawaiian government was constitutionally restored by a Council of Regency that serves in the absence of the Monarch. Two years later, both the Hawaiian Kingdom, as a State, and the Council of Regency, as its government, was acknowledged in 1999 by the Permanent Court of Arbitration in The Hague, Netherlands, in Larsen v. Hawaiian Kingdom.
The phrase “come home to roost” means to have unfavorable repercussions for actions taken in the past, example: “You ought to have known that your lies would come home to roost in the end”—Charles West, Stage Fright. Proceedings in Hawaiian Kingdom v. Biden is drawing attention to the United States and State of Hawai‘i actions of the past.
When federal court proceedings for Hawaiian Kingdom v. Biden were initiated on May 20, 2021, the court’s status as an Article III Court was the primary issue. Article III refers to the judicial branch of the U.S. Constitution. The U.S. Constitution does not have any legal enforcement outside the United States, and, therefore, federal courts can only operate within U.S. territory. Because the Hawaiian Kingdom continues to exist as an independent, but occupied, State, the federal court in Honolulu has no legal basis.
However, under U.S. law, a federal court can operate outside of the United States if the foreign territory is being belligerently occupied by the U.S. In this case, the authority would come under Article II of the U.S. Constitution, which is the executive branch of government headed by the President. As the President is the commander-in-chief of the military that is occupying foreign territory, an Article II Occupation Court can be established to administer the laws of the occupied country and international humanitarian law—laws of war, which includes the law of occupation. The 1907 Hague Regulations and the 1949 Fourth Geneva Convention regulate foreign occupations.
After the Nazi government was overthrown in 1945, the United States, along with France, Great Britain and the Soviet Union began to occupy the German State. In the United States sector of occupation, an Article II Occupation Court was established to administer German law and international humanitarian law.
When the proceedings began, the focus was on getting the federal court to transform from an Article III Court to an Article II Occupation Court. The International Association of Democratic Lawyers, the National Lawyers Guild and the Water Protector Legal Collective, co-authored an amicus curiae brief that would assist the federal court to understand what an Article II Occupation Court is and why the federal court should transform from an Article III Court. Their request to file the brief was approved by Magistrate Judge Rom Trader on September 30, 2021, and the amicus brief was filed with the court on October 6, 2021.
The focus in these proceedings have recently shifted from having the federal court transform to an Article II Occupation Court to a preliminary issue called the Lorenzo principle. The Lorenzo principle is State of Hawai‘i common law or judge made law that centers on whether the Hawaiian Kingdom continues to exist as a State despite the overthrow of its government by the United States on January 17, 1893.
The case that the Lorenzo principle is based on is State of Hawai‘i v. Lorenzo that came before the Hawai‘i Intermediate Court of Appeals (ICA) in 1994. The principle is evidence based and requires defendants in cases that have come before courts of the State of Hawai‘i since 1994 to provide evidence that the kingdom continues to exist and to not just argue that it exists. This was the case in State of Hawai‘i v. Araujo, where the ICA stated:
Because Araujo has not, either below or on appeal, “‘presented any factual or legal basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,’” (citing Lorenzo, 77 Hawai‘i at 221, 883 P.2d at 643), his point of error on appeal must fail.
The Lorenzo principle also separates the Native Hawaiian sovereignty movement and nation building from the continued existence of the Hawaiian Kingdom as a State. The Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, not only clarified the evidentiary burden but also discerned between a new Native Hawaiian nation brought about through nation-building, and the Hawaiian Kingdom that existed as a State in the nineteenth century. The Hawai‘i Supreme Court explained:
Petitioners’ theory of nation-building as a fundamental right under the ICA’s decision in Lorenzo does not appear viable. Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] “exists as a state in accordance with recognized attributes of a state’s sovereign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her. Thus, Lorenzo does not recognize a fundamental right to build a sovereign Hawaiian nation.
In these proceedings, the Hawaiian Kingdom has clearly provided irrefutable evidence that the Hawaiian Kingdom continues to exist as a State, especially when the Permanent Court of Arbitration acknowledged its continued existence in Larsen v. Hawaiian Kingdom. In this type of a situation, the Lorenzo principle, when applying international law, requires the party opposing the continued existence of the kingdom to provide evidence, whether factual or legal, that the kingdom does not continue to exist.
In other words, if any of the defendants in these proceedings wants the court to dismiss this case, they are required to provide evidence that the kingdom no longer exists in accordance with the standard of evidence that the Lorenzo principle established. Clear evidence that the Hawaiian Kingdom would no longer exist as a State is a treaty of cession where the Hawaiian Kingdom incorporated itself into the United States. There is no such treaty.
On June 19, 2022, the Clerk of the federal court entered defaults for the State of Hawai‘i, Governor David Ige, Securities Commissioner Ty Nohara, and Director of the Department of Taxation Isaac Choy for failing to answer the amended complaint filed on August 11, 2021.
In an attempt to have the federal court set aside the defaults, the State of Hawai‘i Attorney General’s office, on behalf of the State of Hawai‘i, Governor Ige, Securities Commissioner Nohara and the Director of Taxation Choy, filed a motion to set aside defaults on August 12, 2022.
In its memorandum in support of its motion, the State of Hawai‘i Defendants stated that once the defaults are set aside they intend to file a motion to dismiss because since the case presents a political question, the federal court has no jurisdiction over the issue and must dismiss the case. It is the same argument that the Federal Defendants are making. Both claim that the political branches of government, which are the President and Congress, no longer recognizes the Hawaiian Kingdom, and until they do federal courts cannot have jurisdiction because it is a question for the political branches to decide first.
What undercuts this argument is the United States own Restatement (Third) Foreign Relations Law, §202, comment g, which clearly states, “The duty to treat a qualified entity as a state also implies that so long as the entity continues to meet those qualifications its statehood may not be ‘derecognized.’ If the entity ceases to meet those requirements, it ceases to be a state and derecognition is not necessary.”
This is merely reiterating the rule of customary international law. According to Professor Oppenheim, once recognition of a State is granted, it “is incapable of withdrawal” by the recognizing State. And Professor Schwarzenberger explains that “recognition estops the State which has recognized the title from contesting its validity at any future time.”
The United States cannot simply de-recognize an independent State because it is politically convenient to do so. If it were such a case and allowable under international law, which it is not, then why wouldn’t the United States de-recognize its adversaries like China, Russia and North Korea.
Another problem that both the Federal and the State of Hawai‘i Defendants have is the Lorenzo principle that binds all State of Hawai‘i courts and the federal court in Honolulu. The Lorenzo principle states that the question as to whether the Hawaiian Kingdom continues to exist as a State is a “legal question” and not a “political question.”
A legal question is where a court makes a decision based on factual or legal evidence, and in order for the court to decide that legal question it must have jurisdiction to do so. A political question prevents the court from deciding because it does not have jurisdiction in the first place. This is an absurd argument and in all 53 cases that applied the Lorenzo principle by the Hawai‘i Supreme Court and the Intermediate Court of Appeals, and the 17 case that applied the Lorenzo principle in the federal court in Honolulu and by the Ninth Circuit Court of Appeals, not one argued the political question doctrine.
Here when the evidence is abundantly clear that the Hawaiian Kingdom continues to exist as a State, the Federal and State of Hawai‘i Defendants scream POLITICAL QUESTION. This baseless argument really speaks volumes as to the strength of the evidence in this case that the Hawaiian Kingdom continues to exist as a State.
Yesterday, the Hawaiian Kingdom filed its Opposition and requested that Magistrate Judge Trader schedule an evidentiary hearing so that the State of Hawai‘i Defendants can prove with evidence that the Hawaiian Kingdom no longer exists as a State according to the evidentiary standard set by the Lorenzo principle. The Hawaiian Kingdom also filed a request for the Magistrate Judge to take Judicial Notice of evidence that the Hawaiian Kingdom continues to exist as a State.
In its Opposition, the Hawaiian Kingdom concluded with:
For these reasons, the Plaintiff respectfully requests that the Court schedule an evidentiary hearing in accordance with the Lorenzo principle for the State Defendants to provide rebuttable evidence, whether factual or legal, that the Hawaiian Kingdom ceases to exist as a State in light of the evidence and law in the instant motion. If the State Defendants are unable to proffer rebuttable evidence, the Plaintiff respectfully requests that this Court transform into an Article II Occupation Court in order for the Court to possess subject matter and personal jurisdiction to consider the State Defendants’ motion to set aside defaults. The transformation to an Article II Occupation Court is fully elucidated in the brief of amici curiae the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective [ECF 96]. When the Court has jurisdiction, the Plaintiff will not oppose the State Defendants motion to set aside defaults.
Should the State Defendants proffer evidence of a treaty of cession that the Hawaiian Kingdom ceded its territory and sovereignty to the United States, whereby the Hawaiian State ceased to exist under international law, the Plaintiff will withdraw its amended complaint for declaratory and injunctive relief [ECF 55] and bring these proceedings to a close.
Plaintiff’s request for an evidentiary hearing and judicial notice pursuant to the Lorenzo principle is in compliance with §34 of the Federal Judiciary Act of September 24, 1789, 28 U.S.C. §1652, which provides, “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.”
As the United States Supreme Court, in Erie R.R. v. Tompkins, stated, “federal courts are […] bound to follow decisions of the courts of the State in which the controversies arise.” This case is manifestly governed by Erie and the Lorenzo principle. It is not governed by Baker v. Carr as to the political question doctrine.
On August 15, 2022, Judge Leslie Kobayashi filed an Order denying the Hawaiian Kingdom’s request to allow the Ninth Circuit to review her previous Order dated July 28, 2022, denying the Hawaiian Kingdom’s motion to reconsider her decision. Federal rules allow a party to file a motion for reconsideration within 10 days of the Order. In her August 15 Order, she stated:
“Here, whether the Hawaiian Kingdom continues to exist as a sovereign and independent state is not a controlling question of law. ‘The Ninth Circuit, this court, and Hawaii state courts have rejected arguments asserting Hawaiian sovereignty.’ Although the resolution of whether the Hawaiian Kingdom exists as a sovereign and independent state could, theoretically, materially affect the outcome of litigation, the question presented does not rise to the level of an exceptional case warranting departure from the congressional directive to grant interlocutory appeals sparingly.”
The Hawaiian Kingdom does not agree with Judge Kobayashi that the Hawaiian Kingdom’s existence is not a controlling question of law that would bind the Court. On August 24, 2022, the Hawaiian Kingdom filed a motion for Judge Kobayashi to reconsider her decision on the grounds of judicial estoppel, and in accordance with the Lorenzo principle to schedule an evidentiary hearing in order to compel the Federal Defendants to prove that the Hawaiian Kingdom no longer exists as a State. According to the Ninth Circuit, in Rissetto v. Plumbers & Steamfitters Local 343, judicial estoppel prevents “a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.”
In its recent filing, the Hawaiian Kingdom drew attention to the United States’ position in support of the Lorenzo principle in United States v. Goo in 2002 where it prevailed, and then in these proceedings regarding the Lorenzo principle they act as if it never existed. The Lorenzo principle stems from the Hawai‘i Intermediate Court of Appeals (ICA) case State of Hawai‘i v. Lorenzo that centered on the subject of whether the Hawaiian Kingdom as a State still exists.
This case not only placed the burden of proof that the Kingdom still exists on the defendant, but it also separated the Hawaiian Kingdom from the native Hawaiian sovereignty movement and nation building. In 2014, the Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, explained:
“Petitioners’ theory of nation-building as a fundamental right under the ICA’s decision in Lorenzo does not appear viable. Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] ‘exists as a state in accordance with recognized attributes of a state’s sovereign nature[,]’ and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her. Thus, Lorenzo does not recognize a fundamental right to build a sovereign Hawaiian nation.”
The ICA reiterated that a defendant has to provide evidence of the Hawaiian Kingdom’s existence as a State and not just say it exists. In State of Hawai‘i v. Araujo, the ICA stated:
Because Araujo has not, either below or on appeal, “‘presented any factual or legal basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,’” (citing Lorenzo, 77 Hawai‘i at 221, 883 P.2d at 643), his point of error on appeal must fail.
The Lorenzo court, however, also acknowledged that it may have misplaced the burden of proof and what needs to be proven. It stated, “although the court’s rationale is open to question in light of international law, the record indicates that the decision was correct because Lorenzo did not meet his burden of proving his defense of lack of jurisdiction.”
Because international law provides for the presumption of the continuity of the State despite the overthrow of its government by another State, it shifts the burden of proof and what is to be proven. According to Judge Crawford, there “is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no, or no effective, government.” Judge Crawford also stated that belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.”
In other words, under international law, it is presumed the Hawaiian Kingdom still exists as a State despited its government being militarily overthrown by the United States on January 17 1893. Addressing the presumption of the continuity of the German State after hostilities ceased in Europe during the Second World War, Professor Brownlie explains:
“Thus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.”
“If one were to speak about a presumption of continuity,” explains Professor Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” A “valid demonstration of legal title” would be an international treaty where the Hawaiian Kingdom ceded itself to the United States. No such treaty, except for the “Big Lie” that Hawai‘i is a part of the United States.
Up until now, the State of Hawai‘i courts and the federal court in Honolulu have been placing the burden on the defendants to prove the Kingdom still exists. Whether the burden is to prove the kingdom’s existence or to prove it doesn’t exist, it is a controlling law that binds the State of Hawai‘i courts.
The Lorenzo case had become a precedent case and was cited by the Hawai‘i Supreme Court in 8 cases, and by the ICA in 45 cases. The latest Hawai‘i Supreme Court’s citation of Lorenzo was in 2020 in State of Hawai‘i v. Malave. The most recent citation of Lorenzo by the ICA was in 2021 in Bank of N.Y. Mellon v. Cummings. Since 1994, Lorenzo had risen to precedent, and, therefore, is common law. Federal law mandates federal courts to apply the common law of the State where the court is.
U.S. District Judge David Ezra, who was the presiding judge in United States v. Goo, stated that he was adhering to the Lorenzo principle and that the defendant did not meet his burden of proof. The defendant was claiming that “he is immune from suit or judgment in any court of the United States or the State of Hawaii. Defendant contends that the State is illegally occupying the Kingdom, and thus the laws of the Kingdom should govern his conduct rather than any state or federal laws. Therefore, Defendant opposes an order from a federal court forcing him to pay “foreign” taxes through a foreclosure mechanism.”
In these proceedings, the Federal Defendants act as if there is no such thing as the Lorenzo principle, which is contrary to their position as the United States in the Goo case. The Federal Defendants managed to convince Judge Kobayashi that the case should be dismissed because the issue of whether the kingdom exists is a political question which does not allow the court to have jurisdiction. Without jurisdiction it wouldn’t be able to have an evidentiary hearing.
In none of the 53 cases that cited the Lorenzo principle did the courts invoke the political question doctrine. Even in the 17 federal cases that applied the Lorenzo principle, which includes Goo, did the courts invoke the political question doctrine. All stated the defendants failed to provide any evidence that the Hawaiian Kingdom still exists as a State.
The Lorenzo principle gives the State of Hawai‘i and the federal court limited jurisdiction to hear the evidence. If there is no evidence that the Hawaiian Kingdom still exists it maintains its jurisdiction. But if evidence shows that the Hawaiian Kingdom still exists, then the courts has no jurisdiction. In these proceedings, when the Federal Defendants fail to provide evidence that the Kingdom no longer exists, the Court will have to transform itself into an Article II Occupation Court in order to have jurisdiction over the complaint filed by the Hawaiian Kingdom.
The issue is not a “political question” but rather a “legal question” that the court has jurisdiction in order to hear the evidence. In another case that came before the ICA, in State of Hawai‘i v. Lee, ICA stated that the Lorenzo court “suggested that it is an open legal question whether the ‘Kingdom of Hawai‘i’ still exists.”
The Federal Defendants are attempting to make an end run on the football field and argue that the Hawaiian Kingdom cannot tackle them. It is an attempt by the Federal Defendants to overcome a difficulty without directly confronting it, which is precisely why judicial estoppel applies and judicial integrity is the primary function of judicial estoppel. Here is what federal courts of appeal say regarding judicial estoppel:
According to the First Circuit, judicial estoppel is to be used “when a litigant is ‘playing fast and loose with the courts,’ and when ‘international self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’”
The Second Circuit states that judicial estoppel “is supposed to protect judicial integrity by preventing litigants from playing fast and loose with courts, thereby avoiding unfair results and unseemliness.”
The Third Circuit established a requirement that “the party changed his or her position in bad faith, i.e., in a culpable manner threatening to the court’s authority and integrity.”
The Fourth Circuit applies judicial estoppel to prevent litigants from “blowing hot and cold as the occasion demands.”
According to the Fifth Circuit, “litigants undermine the integrity of the judicial process when they deliberately tailor contradictory (as opposed to alternate) positions to the exigencies of the moment.”
The Sixth Circuit states that judicial estoppel “preserves the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment.”
The Seventh Circuit seeks to have judicial estoppel “to protect the judicial system from being whipsawed with inconsistent arguments.”
The Eighth Circuit says, “the purpose of judicial estoppel is to protect the integrity of the judicial process. As we read the caselaw, this is tantamount to a knowing misrepresentation to or even fraud on the court.”
The Ninth Circuit allows judicial estoppel to preclude “a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.”
Observing that for judicial estoppel to apply, according to the Eleventh Circuit, the “inconsistencies must be shown to have been calculated to make a mockery of the judicial system.”
This inconsistent position taken by the Federal Defendants has placed the Hawaiian Kingdom in an unfair position. In its closing statement, the Hawaiian Kingdom stated:
“If the Federal Defendants are confident that “Plaintiff’s claim and assertions lack merit,” then let them make their case that the Hawaiian Kingdom “ceases to be a state” under international law pursuant to the Lorenzo principle that the Goo court adhered to. But they cannot prevail by having the Court muzzle the Plaintiff in its own case seeking justice under the rule of law.”
The United States knows that over a century of lies is coming to an end because there never was any evidence that the Hawaiian Kingdom no longer exists as a State. As Sir Walter Scott wrote in 1808, “Oh, what a tangled web we weave when first we practice to deceive.” It means that when you act dishonestly you are initiating problems, and a domino structure of complications, which will eventually run out of control.
This past Friday, August 12, 2022, District Judge Leslie Kobayashi filed a Minute Order taking under advisement the Hawaiian Kingdom’s Motion to Certify for interlocutory appeal her Order of July 28, 2022, denying the Hawaiian Kingdom’s motion for reconsideration of her previous Order granting the Federal Defendants motion to dismiss the amended complaint.
The Federal Defendants include Joseph Robinette Biden Jr., President of the United States; Kamala Harris, Vice-President of the United States; John Aquilino, Commander, U.S. Indo-Pacific Command; Charles P. Rettig, Commissioner of the Internal Revenue Service; Charles E. Schumer, U.S. Senate Majority Leader; and Nancy Pelosi, Speaker of the United States House of Representatives.
In their Motion to Dismiss, the Federal Defendants were claiming that this case presents a political question and that it should be dismissed. A political question means that since the United States has not recognized a nation as being sovereign and independent, the court’s will not adjudicate the case because the recognition of the sovereignty of that nation is first committed to the political branches of government. An example of a political question is Palestine. Because the United States has yet to recognize Palestine as an independent State, the federal courts deny access on matters relating to Palestine because it is a political question that the political branches have yet to recognize it.
The political question doctrine, however, does not apply in this case because the United States recognized the Hawaiian Kingdom as a sovereign and independent State on July 6, 1844, by letter of Secretary of State John C. Calhoun on behalf of President John Tyler, and later entered into treaty relations and the establishment of embassies and consulates in the two countries.
Also, Restatement (Third) of the Foreign Relations Law of the United States, §202, comment g, states that the United States’ “duty to treat a qualified entity as a state also implies that so long as the entity continues to meet those qualifications its statehood may not be ‘derecognized.’” The United States cannot now claim that it has de-recognized the Hawaiian Kingdom. It must show a treaty where the Hawaiian Kingdom merged with the United States, which would result in its extinguishment. No such treaty exists.
In her June 9, 2022 Order granting the Federal Defendants’ motion to dismiss, Judge Kobayashi stated, “Plaintiff bases its claims on the proposition that the Hawaiian Kingdom is a sovereign and independent State. However, ‘Hawaii is a state of the United States…. The Ninth Circuit, this court, and Hawai‘i state courts have rejected arguments asserting Hawaiian sovereignty.’” She then concludes, without reference to any evidence, “Plaintiff’s claims are ‘so patently without merit that the claims require no meaningful consideration.’”
The Hawaiian Kingdom filed a Motion for Reconsideration on June 15, 2022, because Judge Kobayashi’s Order is not in line with the court decisions she cited regarding the Hawaiian Kingdom. In its motion, the Hawaiian Kingdom brought to the attention of Judge Kobayashi the Lorenzo principle that stemmed from a 1994 appeals case, State of Hawai‘i v. Lorenzo, that came before the State of Hawai‘i Intermediate Court of Appeals (ICA). That case centered on whether or not the Hawaiian Kingdom continues to exist despite the unlawful overthrow of its government by the United States on January 17, 1893.
Lorenzo lost his appeal because the ICA stated, “Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” In other words, if Lorenzo did provide the evidence of the Kingdom’s existence as a State his appeal would have been granted and his criminal conviction by the trial court overturned.
In 2002, District Court Judge David Ezra, in United States v. Goo, stated, “This court sees no reason why it should not adhere to the Lorenzo principle.” What is surprising is that Judge Kobayashi was serving at the time as the Magistrate Judge under District Court Judge Ezra who made the decision that the court would “adhere to the Lorenzo principle.” The case centered on an Order issued by Magistrate Judge Kobayashi, which Judge Ezra affirmed. Judge Kobayashi cannot simply disregard the Lorenzo principle, when in fact the Lorenzo principle was used to confirm her Order as a Magistrate Judge.
In 2004, the ICA reiterated that a defendant has to provide evidence of the Hawaiian Kingdom’s existence as a State and not just say it exists. In State of Hawai‘i v. Araujo, the ICA stated:
Because Araujo has not, either below or on appeal, “‘presented any factual or legal basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,’” (citing Lorenzo, 77 Hawai‘i at 221, 883 P.2d at 643), his point of error on appeal must fail.
Finally, in 2014, the Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, clarified this evidentiary burden. The Supreme Court stated:
Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the Kingdom “exists as a state in accordance with recognized attributes of a state’s sovereign nature,” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.
When Judge Kobayashi stated in her Order granting the Federal Defendants’ motion to dismiss that the “Ninth Circuit, this court, and Hawai‘i state courts have rejected arguments asserting Hawaiian sovereignty,” this is not an accurate statement. What the courts did conclude is that the defendants in those cases did not provide any evidence of the Kingdom’s existence as a State according to the Lorenzo principle. Instead, the defendants provided argument but not any evidence to support their argument. Judge Kobayashi’s statement would appear that these courts concluded the Hawaiian Kingdom does not exist as a State, which was clearly not the case.
Despite the Hawaiian Kingdom’s attempt to draw the attention of Judge Kobayashi to the Lorenzo principle and her errors, she issued an Order on July 28, 2022, denying the Hawaiian Kingdom’s request for reconsideration. She stated, “Although Plaintiff argues there are manifest errors of law in the 6/9/22 Order, Plaintiff merely disagrees with the Court’s decision. Plaintiff’s mere disagreement, however, does not constitute grounds for reconsideration.”
Normally, when one of the parties to a lawsuit wants to appeal a decision made by a federal judge they have to wait until the case is over. The Ninth Circuit Court of Appeals stated, “A district court order…is not appealable [under § 1291] unless it disposes of all claims as to all parties or unless judgment is entered in compliance with Federal Rule of Civil Procedure 54(b).” In other words, an Order is appealable while a case is still pending before the district court if it is in compliance with certain rules.
Federal statute 28 U.S.C. §1292(b) allows for Orders, called interlocutory orders, to be appealable if there is a difference of opinion regarding a controlling question of law. This is precisely what Judge Kobayashi stated in her Order denying the request for reconsideration. She stated, “Plaintiff merely disagrees with the Court’s decision.” This disagreement centers on a law that is supposed to be applied by the court in these proceedings. In this case, it would be the application of the Lorenzo principle.
Laws are not only legislative enactments but also include Appellate Court and Supreme Court decisions called common law. When there is no statute or law that would apply to a particular issue, the courts are allowed to make decisions that bind the lower courts when those type of matters come before the trial courts. Until a law is enacted on that particular matter or the highest court changes its decision, the common law would continue to apply at the district court level and bind the judges in their decisions.
The Hawaiian Kingdom filed its Motion to Certify so that the Ninth Circuit can review Judge Kobayashi’s Orders. Under §1292(b), the district court judge must first certify that the request to appeal an interlocutory order to the Ninth Circuit has met certain elements. §1292(b) states:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.
When a motion is filed in court proceedings, the other party, in this case the Federal Defendants, will have to file a motion to oppose or not oppose the filing. Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, spoke with the Department of Justice who is representing the Federal Defendants and told them that the Hawaiian Kingdom will be filing a motion for certification and asked if they would oppose or agree with the action. They told Attorney General Ka‘iama that they would oppose it.
The Hawaiian Kingdom was planning to respond to the Federal Defendants’ filing of their opposition with additional information it had found to support its Motion to Certify. However, when Judge Kobayashi filed her Order this past Friday, she stated, “that no response to the Certification Motion is necessary,” which means the Federal Defendants will not be filing their opposition as to why they oppose the motion to certify. They merely stated to Attorney General Ka‘iama that they will oppose it.
On Sunday, August 14, 2022, the Hawaiian Kingdom filed a Supplement to its Motion to Certify with the information it intended to reply to the Federal Defendants’ filing of their opposition. In its supplement to its motion, the Hawaiian Kingdom showed that there are other laws, along with the Lorenzo principle, to be the controlling law on this topic that Judge Kobayashi disregarded.
In its recent filing, the Hawaiian Kingdom expanded on the Lorenzo principle as the common law of the State of Hawai‘i. For the past 28 years, State of Hawai‘i v. Lorenzo was cited by the Hawai‘i Supreme Court in 8 cases, the most recent was in 2020. The ICA cited Lorenzo in 45 cases, the most recent was in 2021.
As common law of the State of Hawai‘i, Judge Kobayashi was bound to apply it in this case because of §34 of the Federal Judiciary Act of 1789, which is codified under 28 U.S.C. §1652:
The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.
Reinforcing this statute, the United States Supreme Court, in Erie R.R. v. Tompkins, stated that “federal courts are bound to follow decisions of the courts of the State in which the controversies arise.” Judge Kobayashi cannot simply disregard 28 years of decisions by the State of Hawai‘i courts that say defendants must provide evidence that the Hawaiian Kingdom continues to exist as a State despite its government being unlawfully overthrown by the United States on January 17, 1893. The Hawaiian Kingdom also stated:
Further, it appears that the Court adopted a federal rule of decision to favor the United States despite its admitted illegal conduct regarding the overthrow of the government of the Hawaiian Kingdom on January 17, 1893. The application of the Lorenzo principle, as the common law of the State of Hawai‘i, should not be deemed by the Court to be incompatible with federal interests because it does not promote the interest of the United States. This is problematic because the federal court did adopt the Lorenzo principle as federal law in 17 cases, but this Court adopted a rule of decision—political question doctrine, in this one instance without any basis in law or fact, that unfairly advances the interest of the United States and shields them from accountability for its admitted unlawful conduct. This gives the impression that the Court is giving one party to the controversy an unfair advantage.
The Hawaiian Kingdom concluded:
Because the Court chose to supersede the decisions of the ICA and the Hawai‘i Supreme Court regarding the evidentiary basis of Lorenzo by invoking the political question doctrine in favor of the United States, the Court should certify for interlocutory appeal so that the Ninth Circuit can address this matter in the light of §1652, Erie, and the Lorenzo principle as controlling law in this case.
For more information and resources from the ongoing 12 part series go to Hawaiian Kingdom History: The Kingdom, the Church, the Land.
On July 12, 2022, the Ninth Circuit Court of Appeals issued an Order dismissing the appeal of the Hawaiian Kingdom that came before a three-judge panel comprised of Justices Silverman, Callahan, and Collins. The Order stated that the Ninth Circuit Court “lacks jurisdiction over this appeal because the challenged orders are not final or appealable.” The Court explained, “A district court order is…not appealable [§1291] unless it disposes of all claims as to all parties or unless judgment is entered in compliance with Federal Rule of Civil Procedure 54(b).”
The Hawaiian Kingdom v. Biden proceedings are still taking place at the district court in Hawai‘i, which is why the Ninth Circuit denied the appeal. While the Ninth Circuit was deliberating, District Court Judge Leslie Kobayashi issued a third Order granting the Federal Defendants’ motion to dismiss with prejudice because the case presents a political question. The basis for her third Order was the same regarding her previous two Orders that were before the Ninth Circuit. Without providing any supporting evidence that it is a political question, Judge Kobayashi stated:
Plaintiff bases its claims on the proposition that the Hawaiian Kingdom is a sovereign and independent state. However, “Hawaii is a state of the United States… The Ninth Circuit, this court, and Hawaii state courts have rejected arguments asserting Hawaiian sovereignty.” “‘[T]here is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.’”
As such, Plaintiff’s claims are “patently without merit that the claim[s] require no meaningful consideration.” In any event, to the extent that Plaintiff’s ask the Court to declare that the Hawaiian Kingdom is a sovereign territory, the United States Supreme Court made clear over 130 years ago that “[w]ho is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges….” “The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” “This principle has always been upheld by” the Supreme Court. Accordingly, the Court lacks subject matter jurisdiction, and Plaintiff’s claims against the Federal Defendants must be dismissed.
On June 15, 2022, the Hawaiian Kingdom filed a motion for reconsideration with Judge Kobayashi. For the first time in these proceedings, the Hawaiian Kingdom, in its motion, addressed the Lorenzo principle and who actually has the burden of evidence and what needs to be proven. In State of Hawai‘i v. Lorenzo, the Intermediate Court of Appeals admitted that its “rationale is open to question in light of international” by placing the burden on the defendant to provide evidence of the Hawaiian Kingdom’s existence as a State.
If the court applied international law, which they admitted they didn’t but could, there is a presumption that the Hawaiian Kingdom, an established and recognized State in the nineteenth century, continues to exist until there is rebuttable evidence to the contrary. In other words, when you apply international law it is not an issue of whether the Hawaiian Kingdom exists as a State, but rather an issue that the Hawaiian Kingdom no longer exists as a State under international law.
You start off with the Hawaiian Kingdom’s continued existence until an opposing party provides evidence that the United States extinguished the existence of the Kingdom. There is no such evidence, which is why the Permanent Court of Arbitration in 1999 verified the Hawaiian Kingdom’s continued existence as a “State” in Larsen v. Hawaiian Kingdom.
It is clear that the federal court does apply the State of Hawai‘i v. Lorenzo case when defendants assert that the Hawaiian Kingdom continues to exist. In 2002, U.S. District Court Judge David Ezra, in United States v. Goo, stated:
Since the Intermediate Court of Appeals for the State of Hawaii’s decision in Hawaii v. Lorenzo, the courts in Hawaii have consistently adhered to the Lorenzo court’s statements that the Kingdom of Hawaii is not recognized as a sovereign state by either the United States or the State of Hawaii. See Lorenzo; see also State of Hawaii v. French (stating that “presently there is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognizing attributes of a state’s sovereign nature”) (quoting Lorenzo). This court sees no reason why it should not adhere to the Lorenzo principle.
In State of Hawai‘i v. Lorenzo, the Intermediate Court of Appeals explained, it “was incumbent on Defendant to present evidence supporting his claim. Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” Because Lorenzo presented no evidence is why his appeal was denied. Affirming the jurisdictional issue and the burden of providing evidence, the State of Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, explained:
Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] “exists as a state in accordance with recognized attributes of a state’s sovereign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.
The operative word in Judge Ezra’s decision, like the Intermediate Court of Appeals, is “presently” because of the evidentiary burden not being met. Regarding this burden to provide evidence, Judge Ezra stated, “that Defendant has failed to provide any viable legal or factual support for his claim that as a citizen of the Kingdom he is not subject to the jurisdiction of the courts.”
The Lorenzo principle was applied by the federal court in 17 cases since 1993 and was addressing the fact that the defendants in these cases provided no evidence of the Hawaiian Kingdom’s existence as a State. That is why the decisions had the word “presently,” because it is still an open question. Not one of these cases stated what Judge Kobayashi stated in her Order that the issue is a political question.
While the Hawaiian Kingdom did not have the burden to provide evidence of its continued existence as a State pursuant to the Lorenzo principle, it did so throughout these proceedings from the start. Whether or not who has the burden to provide evidence of the Hawaiian Kingdom’s continued existence or its non-existence, the outcome is the same regarding the jurisdiction of the State of Hawai‘i court or the federal court. Simply stated, if the Hawaiian Kingdom exists then the courts have no jurisdiction.
The Lorenzo principle is called federal common law, which Black’s Law dictionary defines as a “body of decisional law developed by the federal courts.” In 1938, the U.S. Supreme Court, in Erie Railroad v. Tompkins, stated that federal courts have to apply the laws and decisions of State courts where they reside. As Judge Ezra explained, the Lorenzo principle stems from the State of Hawai‘i Intermediate Court of Appeals in State of Hawai‘i v. Lorenzo.
No State of Hawai‘i court applying the precedent of State of Hawai‘i v. Lorenzo in their decisions or the 17 federal court decisions applying the Lorenzo principle stated that the issue presents a political question. Judge Kobayashi’s statement that the issue is a political question has no basis in fact or in law.
On July 28, 2022, Judge Kobayashi denied the Hawaiian Kingdom’s motion. In her fourth Order she stated, “Plaintiff’s Motion fails to identify any new material facts not previously available, an intervening change in law, or a manifest error of law or fact. Although Plaintiff argues there are manifest errors of law in the 6/9/22 Order, Plaintiff merely disagrees with the Court’s decision.” She sums it up that it’s merely a disagreement.
It is clear that Judge Kobayashi’s opinion that the Hawaiian Kingdom does not exist flies in the face of an evidentiary burden in the Lorenzo principle that has and continues to be applied by the State of Hawai‘i courts since 1994 and the federal court since 1993. This is not a mere disagreement between Judge Kobayashi and the Hawaiian Kingdom, but rather a complete disregard of 29 years of court decisions that when a party is claiming the Hawaiian Kingdom continues to exist it must provide evidence of a factual or legal basis. Her decision is a clear “manifest error of law.”
This past Friday, the Hawaiian Kingdom filed a motion to certify for interlocutory appeal to the Ninth Circuit of a non-final order. Under Federal Rule of Civil Procedure 54(b), the Ninth Circuit Court can hear a non-final order if it involves a “controlling question of law as to which there is substantial ground for difference of opinion,” and “may materially advance the ultimate termination of the litigation.”
The question of law and the difference of opinion would be the Lorenzo doctrine, which Judge Kobayashi acknowledged when she stated, “Plaintiff merely disagrees with the Court’s decision.” The issue that it “may materially advance the ultimate termination of the litigation,” is that the Hawaiian Kingdom could move for summary judgement because none of the Federal Defendants contested the allegations in the amended complaint. A summary judgment is a judgment entered by a court for one of the parties without going to trial.
There is a two-step process for a non-final Order to be taken up on appeal before the Ninth Circuit Court. First, Judge Kobayashi will have to first certify the appeal with an Order, and, second, the Hawaiian Kingdom will have to file that Order with the Ninth Circuit for their acceptance of the appeal. If Judge Kobayashi denies the certification, the Hawaiian Kingdom will appeal on this same subject when the case has come to a close. This filing of the appeal now is so that resources and money won’t be wasted by continuing the proceedings in the district court, especially when everything centers on the Lorenzo doctrine.
The issue before the federal court in Hawai‘i is no longer its status as an Article II Occupation Court, but rather the Lorenzo principle and the issue of the Hawaiian Kingdom continued existence as a State. The transformation of the federal court into an Article II Occupation Court is incidental to the Lorenzo principle and the application of international law.
Come join the HCUCC Justice and Witness Missional Team for this exciting and informative exploration of Hawaiian History. Whether you are kamaʻāina or a relative newcomer to Hawaiʻi, you will hear history that you have not heard before.
Three eminent scholars, Dr. Keanu Sai, Dr. Ron Williams Jr., and Donovan Preza, will help us delve into historic documents and events that can inform us as we seek understanding and discernment regarding fulfilling our promise made in the UCC’s apology 30 years ago to the Hawaiian people to stand with them in seeking justice.
See and hear newly translated church documents from over a century. Learn about the Hawaiian Kingdomʻs founding and continuing legal status under International law. Learn about the Mahele and privatization of Hawaiian land under Hawaiian Kingdom law and why land issues will continue unless the UCC promise is fulfilled. Learn about churches who actively resisted the overthrow of the Hawaiian Kingdom, and the white oligarchy who facilitated the illegal overthrow. If as brothers and sisters in Christ we desire reconciliation, we must first acknowledge the nature of the wrongs and their continuing effects on these islands, the Hawaiian people, and our Church.
This 12-week series will be presented through Zoom beginning on Sunday, August 7, 2022, at 4:00 p.m. HST and continues each Sunday, at the same time, through October 23, 2022. Each Zoom session will be one hour long consisting of a presentation followed by questions and discussion.
To attend any or all of the sessions, please register HERE.
PART I: The Kingdom
Presenter: Dr. Keanu Sai
ABOUT THE PRESENTER: I have a Ph.D. in Political Science specializing in Hawaiian Constitutionalism and International Relations, and a founding member of the Hawaiian Society of Law & Politics. I served as lead Agent for the Hawaiian Kingdom in arbitration proceedings before the Permanent Court of Arbitration at The Hague, Netherlands, from November 1999-February 2001. I also served as Agent in a Complaint against the United States of America concerning the prolonged occupation of the Hawaiian Kingdom, which was filed with the United Nations Security Council on July 5, 2001. Articles on the status of the Hawaiian Kingdom as an independent state, the arbitration case and the complaint filed with the United Nations Security Council have been published in the following journals: American Journal of International Law, vol. 95 (2001); Chinese Journal of International Law, vol. 2, issue 1, (2002), and the Hawaiian Journal of Law & Politics, vol. 1 (2004).
- AUGUST 7 Hōʻike ʻEkahi (Presentation 1) The importance of terminology. Is Hawaiian a nationality, which is multi-ethnic, or a native indigenous people that have been colonized by the United States?
- AUGUST 14 Hōʻike ʻElua (Presentation 2) The constitutional history of the Hawaiian Kingdom from King Kamehameha III to Queen Lili‘uokalani (1839-1893)
- AUGUST 21 Hōʻike ʻEkolu (Presentation 3) The illegal overthrow of the government of the Hawaiian Kingdom and the continued existence of the Hawaiian Kingdom as a State under international law
- AUGUST 28 Hōʻike ʻEhā (Presentation 4) The road to recovery of ending the American occupation. How to bring compliance to the rule of law in light of war crimes and human rights violations committed in the Hawaiian Kingdom since January 16, 1893
PART II: The Church
Presenter: Dr. Ronald Williams Jr.
ABOUT THE PRESENTER: Dr. Ronald Williams Jr. holds a doctorate in history from the University of Hawaiʻi at Mānoa with a specialization in Hawaiʻi and Native-language resources. He is a former faculty member of the Hawaiʻinuiākea School of Hawaiian Knowledge, UH Mānoa and in 2017 was the founding director of the school’s Lāhui Hawaiʻi Research Center. Dr. Williams is also a past president of the 128-year old Hawaiian Historical Society. He currently works as an archivist at the Hawaiʻi State Archives and serves as Hoʻopaʻa Kūʻauhau (Historian) for the grassroots political organization Ka ʻAhahui Hawaiʻi Aloha ʻĀina. Dr. Williams was a contributing author to the 2019 Samuel Manaiākalani Kamakau Book of the Year award-winning publication, Hoʻoulu Hawaiʻi: The Kalākaua Era. He has published in a wide variety of academic and public history venues including the Oxford Encyclopedia of Religion in America, the Hawaiian Journal of History, and Hana Hou! Magazine.
- SEPTEMBER 04 Hōʻike ʻEkahi (Presentation 1) The Early Mission, 1820 -1863
- SEPTEMBER 11 Hōʻike ʻElua (Presentation 2) Hōʻeuʻeu Hou: Sons of the Mission and the Shaping of a New “Mission,” 1863-1888
- SEPTEMBER 18 Hōʻike ʻEkolu (Presentation 3) Poʻe Karitiano ʻOiaʻiʻo (True Christians)
- SEPTEMBER 25 Hōʻike ʻEhā (Presentation 4) “I ka Wā Mamua, ka Wā Mahope” (The Future is in the Past)
PART III: The Land
Presenter: Donovan Preza MORE INFO TO COME
- OCTOBER 2 Hōʻike ʻEkahi (Presentation 1)
- OCTOBER 9 Hōʻike ʻElua (Presentation 2)
- OCTOBER 16 Hōʻike ʻEkolu (Presentation 3)
- OCTOBER 23 Hōʻike ʻEhā (Presentation 4)
The ongoing illegal state of war between the Hawaiian Kingdom and the United States since 1893, and the prolonged belligerent occupation of an internationally recognized independent State has violated all norms of international law. In light of the federal lawsuit, Hawaiian Kingdom v. Biden, it is timely to address another war and subsequent belligerent occupation that the United States was involved, which eventually came to an end with the payment of reparations. This was the war with Japan from 1941-51.
Here follows the reparations for war paid by the Japanese government under the 1951 Treaty of Peace.
Reparations were made by Japan pursuant to Article 14(a), 1951 Japan Treaty of Peace, which states, “It is recognized that Japan should pay reparations to the Allied Powers for the damage suffering caused by it during the war.” Below are Japanese reparations to countries for 10 years of war (1941-51).
|Country||Amount in US$||Date of Treaty|
|Burma||$200 million||Nov. 5, 1955|
|Philippines||$550 million||May 9, 1956|
|Indonesia||$223 million||Jan. 20, 1958|
|Vietnam||$39 million||May 13, 1959|
|Average||$250 million||Mean year—1957|
|Inflation calculator||$2.6 billion||Year—2022|
As a basis to calculate the amount of reparations that could be owed to the Hawaiian Kingdom by the United States up to the year of 2022, which is 129 years of war, the Japanese reparations paid could serve as a guide by applying the years of war to the years of war with the Hawaiian Kingdom. Reparations to be paid by the United States could be calculated at $32 billion, which is $250 million annually multiplied by 129 years of war with the Hawaiian Kingdom. The inflation calculator sets $32 billion in 1957 to $337 billion in 2022.
According to the 1876 Act to Regulate the Currency, “the gold coins of the United States of America shall be the standard and a legal tender in this Kingdom in all payments of debts, at their nominal value.” Although the United States completely stopped using the gold standard in 1973, it was replaced by fiat money that the U.S. government orders its currency must be used for payments.
This measurement could also be applied to other countries who are parties to the conflict and who have been complicit in the belligerent actions taken by the United States against the Hawaiian Kingdom such as the 20 States that unlawfully recognized the United States surrogate calling itself the so-called Republic of Hawai‘i in 1894. These States, and the dates they recognized the American puppet, include:
- Austria-Hungary (January 1, 1895);
- Belgium (October 17, 1894);
- Brazil (September 29, 1894);
- Chile (September 26, 1894);
- China (October 22, 1894);
- France (August 31, 1894);
- Germany (October 4, 1894);
- Guatemala (September 30, 1894);
- Italy (September 23, 1894);
- Japan (April 6, 1897);
- Mexico (August 8, 1894);
- Netherlands (November 2, 1894);
- Norway-Sweden (December 17, 1894);
- Peru (September 10, 1894);
- Portugal (December 17, 1894);
- Russia (August 26, 1894);
- Spain (November 26, 1894);
- Switzerland (September 18, 1894); and
- United Kingdom (September 19, 1894).
According to renowned American jurist, Professor Ellery Stowell, Intervention in International Law (1921) at 349, n. 75, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.”
Seizing of Assets:
Seizure of Japanese assets in the territories of Allied Powers was also done pursuant to Article 14(a)(2)(I), 1951 Japan Treaty of Peace, which states, “Subject to the provisions of sub-paragraph (II) below, each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of (a) Japan and Japanese nationals, (b) persons acting for or on behalf of Japan or Japanese nationals, and (c) entities owned or controlled by Japan or Japanese nationals, which on the first coming into force of the present Treaty were subject to its jurisdiction.”
In the United States, Japanese assets seized amounted to $85 million (inflation conversion for 2022—$896 million). Pursuant to Presidential Executive Order no. 9567—Alien Property Custodian (1945), the United States took title by “vesting” of all property of Japan and Germany and their nationals. Under the 1948 War Claims Act proceeds derived from these assets would not be returned, but rather placed in a War Claims Fund from which payments would be made to United States citizens that suffered as a consequence of the war with Japan and Germany.
Assets held by the United States and other States who are parties to the conflict since January 16, 1893, to include their nationals, within the territorial jurisdiction of the Hawaiian Kingdom are yet to be determined. The liquidation of these assets could be utilized in similar fashion as the United States did regarding Japanese and German properties vested under Alien Property Custodian, to compensate Hawaiian subjects who were the victims of war crimes under international humanitarian law.
The Preliminary Report on the Legal Status of Land Titles throughout the Realm of July 16, 2020, by the Royal Commission of Inquiry, is a comprehensive report as to why the majority of land titles today throughout Hawai‘i are defective. This includes properties claimed to be owned by billionaires such as Mark Zuckerberg’s claim to property on the island of Kaua‘i, and Larry Ellison’s claim to 98% of the island of Lana‘i. The Royal Commission of Inquiry also published a Supplemental Report on Title Insurance on October 20, 2020.
All titles to real estate throughout the Hawaiian Kingdom are subject to Hawaiian laws despite the unlawful overthrow of its government by the United States in 1893. As such, all titles that have since been alleged to have been conveyed after January 17, 1893, are void ab initio due to forged certificates of acknowledgment by individuals impersonating public officers. This includes all purported conveyances of Government or Crown lands after January 17, 1893, and any judicial proceedings regarding titles to land.
Hawaiian law, however, would have recognized these acts of the insurgents as being valid if Queen Lili‘uokalani was restored to office. The agreed upon conditions of restoration between the United States and the Hawaiian Kingdom provided, “a general amnesty to those concerned in setting up the provisional government and a recognition of all its bona fide acts and obligations.” Regarding the “bona fide acts and obligations,” the Queen stated in her letter dated December 18, 1893, to the U.S. Minister Albert Willis, who was negotiating on behalf of President Cleveland, “I further solemnly pledge myself and my Government, if restored, to assume all the obligations created by the Provisional Government, in the proper course of administration, including all expenditures for military or police services, it being my purpose, if restored, to assume the Government precisely as it existed on the day when it was unlawfully overthrown.”
By this agreement, the United States acknowledged the acts done by the insurgency were not “bona fide” until after the Queen was restored. The Queen was not restored and, therefore, the insurgency continued to unlawfully impersonate public officers of the Hawaiian Kingdom in the chain of title. These defects in title are covered risks in the owner’s and lender’s title insurance policies as:
- forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation;
- failure of any person or Entity to have authorized a transfer or conveyance;
- a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized, or delivered;
- a document executed under a falsified, expired, or otherwise invalid power of attorney;
- a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic means authorized by law;
- a defective judicial or administrative proceeding.
Here’s an example of a “bona fide” Royal Patent issued on October 26, 1852.
Here is an example of a “forged” Royal Patent issued just one month after the overthrow of the Hawaiian government by the United States dated February 3, 1893. This is an example of what President Cleveland sought to remedy as a “bona fide” act by the insurgents in his agreement of restoration with Queen Lili‘uokalani.
Any property today that derives from this forged Royal Patent is void, but the loss could be covered by an owner’s policy of title insurance. Hill, Steindorff and Widener, in their “Recent Developments in Title Insurance Law,” reported that in 2012, a California Federal District Court, in Gumapac v. Deutsche Bank National Trust, found that “a title report revealed a defect of title by virtue of an executive agreement between President Grover Cleveland and Queen Lili‘uokalani of the Hawaiian Kingdom that rendered any notary actions unlawful. Thus, the deed of conveyance to the homeowners was nullified.” In Hawai‘i, claimants under both an owner’s or lender’s title insurance policy have a duty to immediately notify their insurer of any title defects that affect title to the property or the mortgage that secures the repayment of a loan.
During this time of high prices at the gas pump added on to the high cost of living in the Hawaiian Islands, watching how you spend your money is critical to surviving during this inflation crisis brought upon the residents of Hawai‘i by the United States prolonged occupation of the Hawaiian Kingdom since 1893. But there is some monetary light that many people in Hawai‘i can take advantage of, which is filing a claim with their title insurance company under an owner’s policy, and notifying your bank or lender to file a claim so that your debt owed to the lender is paid off.
When individuals want to borrow money from a bank or lender, they are told by the lender to first go to an escrow company to purchase a lender’s title insurance policy in the amount to be borrowed. Prior to the issuing of a title insurance policy, the escrow company does a title search on the property that the borrower intends to use as a security instrument, also called a mortgage, to ensure the repayment of the loan. A title insurance company that works with the escrow company will then insure the accuracy of the title search. Only when the borrower purchases the title insurance policy to protect the lender from any title defect that affects the mortgaged debt is when escrow comes to a close.
There is another type of title insurance policy that is issued by the escrow company and that is an owner’s policy that protects the owner and not the lender. An owner’s policy is normally purchased when an individual borrows money for the first time and has to go to an escrow company. Many people don’t even know that they may have purchased an owner’s policy unless they look at their closing papers from escrow. Unlike a lender’s policy that covers the debt owed to the lender, an owner’s policy covers the owner’s loss, which is the appraised value of the property at the time the policy is taken out.
Most people are unaware as to what title insurance is and how it works. Typical insurance policies, such as car insurance or flood insurance, insure against a future cause of damage, that may or may not occur. Title insurance, on the other hand, insures against a past cause of damage called defects in the chain of title that affect ownership of real property. According to Burke’s Law of Title Insurance, title insurance is an agreement to indemnify the insured for losses incurred “by either on-record and off-record defects that are found in the title or interest in an insured property to have existed on the date on which the policy is issued.” And Black’s Law Dictionary defines title insurance as a “policy issued by a title company after searching the title…and insuring the accuracy of its search against claims of title defects.” As the Florida Court of Appeals, in McDaniel v. Lawyers Title Guar. Fund, stated, “One of the reasonable expectations of a policyholder who purchases title insurance is to be protected against defects in his title which appear of record.”
Title insurance is a one-time paid premium agreement under both an owner’s policy, that protects the interests of the owner of the property, and a lender’s policy, that protects the lender’s interest—the debt owed—in the mortgaged lien on the property. The owner’s policy does not exceed the amount of coverage on the policy. The lender’s policy coverage reduces as the debt is being paid by the borrower, which will eventually expire once the final payment of the loan is made. Burke explains that coverage under an owner’s policy, however, “lasts for as long as the insured has some liability for title defect, whether as the present owner or possessor, or as a vendor [grantor] and warrantor of the state of the title upon some later sale. There is no such thing as term title insurance. Its policy might, potentially, last forever.” A grantor’s covenant is explicitly stated in its warranty deed where it states, “and that the Grantor will WARRANT AND DEFEND the same unto the Grantee against the lawful claims and demands of all persons.”
Being that title insurance is an indemnity agreement, Burke states that the insurer can also act as a surety, which “is a person agreeing to be answerable for the actions of another.” According to Burke, when there is a breach of covenant and warranty of title by a grantor, the “title insurer might agree to remedy a breach of the covenant for further assurances by bringing the litigation required to cure a title, instead of letting the [grantor] do it.” The right to remedy, as a surety, is provided under Condition no. 5 of both the owner and lender policies that states the insurer “shall have the right, in addition to the options contained in Section 7 of these Conditions, at its own cost, to institute and prosecute any action or proceeding or to any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured.” According to Hill, Steindorff and Widener, an Illinois Appellate Court concluded “that although the title company did not have an ownership interest in the property, the company had issued a title insurance policy and could have redeemed the taxes on the subject property on behalf of the prior owner, to whom it had issued a title policy.”
When the title insurance company is given the evidence of proof of loss of title in a claim letter by the insured, the company has thirty-days to either initiate proceedings to remedy the defect of the title or make a payment to the insured covered in the insurance policy. According to the federal court in Davis v. Stewart Title Guaranty Co., “In law, a title is either good or bad.” The Missouri Supreme Court, in Kent & Obear v. Allen, stated, “the validity of the title arising, the question must be determined whether it is good or bad. We cannot object to the title of the respondent that it is doubtful or unmarketable.” The Davis court also concluded that the “liability of the insurer was definitely fixed under the terms of the policy,” to either remedy the defect or the “payment of loss was due, under the policy, ‘within 30 days thereafter.’”
To determine “on-record defects in title,” a title insurer relies on a competent title search. According to Baker, Miceli, Sirmans, and Turnbull’s article, “Optimal Title Search,” in the Journal of Legal Studies, “Some states have no set length but instead require that the entire title history of a parcel of land be searched back to the state’s date of patent,” which include Alaska, Arizona, California, Florida, Idaho, Kansas, Montana, Nebraska, Nevada, North and South Dakota, Oregon, Texas and Washington. At the highest number of years for a title search are Colorado, Kansas, Montana, Nebraska, North and South Dakota, and Wyoming at 187 years. At the low end of a 30-year search are New Mexico, Oklahoma and Tennessee. In a study of optimal title searches, Hawai‘i, Illinois and Indiana were excluded from the analysis because they provided “indeterminate search lengths.”
In one particular preliminary report by Title Guaranty of Hawai‘i, its title search only went back one conveyance. This lack of a full title search by Title Guaranty, who serves as an agent for title insurance companies, back to the original patent, called Royal Patents, only amplifies the purpose of title insurance as an indemnity agreement. It is not a guaranty of the state of the title. According to the Pennsylvania court, in Hicks v. Saboe, “The purpose of title insurance is to protect the insured…from loss arising from defects in the title which he acquires.” The federal court, in Omega Healthcare Investors, Inc. v. First Am. Title Ins. Co., stated, “Because title insurance [is] a contract of indemnity, the insurer does not guarantee the state of the title, but agrees to pay for any loss resulting from a defective title.” The Maryland Appeals Court, in Stewart Title Guar. Co. v. West, explained that a title insurer does not have a duty to advise “on the state of title to the property, but to insure against…loss resulting from any defects.” Therefore, “the title insurer does not ‘guarantee’ the status of the grantor’s title. As an indemnity agreement, the insurer agrees to reimburse the insured for loss or damage sustained as a result of title problems, as long as the coverage for the damages incurred is not excluded from the policy.”
Since 1994, the State of Hawai‘i courts have applied, whenever the issue of the Hawaiian Kingdom’s continued existence as a State arose in court proceedings, the State of Hawai‘i v. Lorenzo case at the Intermediate Court of Appeals (ICA), which has come to be known as the Lorenzo doctrine in the federal courts. For 28 years, both the State of Hawai‘i courts and the federal courts have been applying the Lorenzo doctrine wrong. Under international law, which the ICA acknowledged may affect its rationale of placing the burden on the defendant to prove the Hawaiian Kingdom “exists as a State,” shifts the burden on the party opposing the continued existence of the Hawaiian Kingdom that it “does not exist as a State.” In international arbitration proceedings at the Permanent Court of Arbitration from 1999-2001, in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01, the PCA acknowledged the Hawaiian Kingdom continues to exist as a State and the Council of Regency as its government. Because the Hawaiian Kingdom still exists, so do the laws that apply to real property.
In a denial letter to a title insurance claimant, Michael J. Moss, Senior Claims Counsel for Chicago Title Insurance Company, specifically referenced the Lorenzo doctrine applied in two State of Hawai‘i court cases and one federal court case as a basis to decline the insurance claim under an owner’s title insurance policy in the amount of $178,000.00. Moss stated:
The Hawaiian Courts have consistently found that the Kingdom of Hawai‘i is no longer recognized as a sovereign state by either the federal government or by the State of Hawai‘i. See State v. Lorenzo, 77 Hawai‘i 219, 221, 883 P.2d 641, 643 (Haw.App.1994); accord State v. French, 77 Hawai‘i 222, 228, 883 P.2d 644, 649 (Haw.App.1994); Baker v. Stehua, CIV 09-00615 ACK-BMK, 2010 WL 3528987 (D. Haw. Sept. 8, 2010).
Like the courts of the State of Hawai‘i and the federal courts, the Senior Claims Counsel incorrectly applied the Lorenzo doctrine, which should have been in favor of the title insurance claimant. The title insurance claim was that the “Owner’s deed was not lawfully executed according to Hawaiian Kingdom law [because] the notaries public and the Bureau of Conveyance weren’t part of the Hawaii[an] Kingdom, that the documents in [the claimant’s] chain of title were not lawfully executed.” In other words, the Lorenzo doctrine, when applying international law correctly, would compel the title insurance company to pay the claimant his $178,000.00 covered under the owner’s title insurance policy he had purchased to protect him in case there was a defect in the title.
To find out if you have an owner’s policy check your closing papers from escrow to see if you purchased a policy. Or you can call your escrow company or companies that you went to in the past. If you have a mortgage you did purchase a title insurance policy to protect the lender. To file a claim under your owner’s policy download this MSWord document and fill in the necessary information after you have your owner’s policy in hand. To send a letter to your lender to file an insurance claim under the lender’s policy you purchased download this MSWord document and fill in the necessary information.
Submitting an insurance claim is a private matter that is subject to the terms of your contract or policy. Under the terms of the policy you and the lender are obligated to notify the insurance company if you have been made aware that there are defects in your title. It is suggested that you carefully read over your title insurance policy before you send your claim to the insurance company by certified mail. The lender, not the borrower, has a copy of the lender’s policy that was purchased by the borrower. Once the claim, whether by the owner or the lender, is received by the insurance company you will receive a letter acknowledging your claim and assigning it a claim number. This letter by the insurance company will begin the thirty-day window to either remedy the defect in the title or pay the amount covered under the policy.