Author Archives: Hawaiian Kingdom

National Lawyers Guild Supports Council of Regency’s Strategic Plan

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Posted on the National Lawyers Guild’s website on January 13, 2020.

The National Lawyers Guild (NLG), the oldest and largest progressive bar association in the United States, calls upon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893. As the longest running belligerent occupation of a foreign country in the history of international relations, the United States has been in violation of international law for over a century.

THE HAWAIIAN KINGDOM AS A SOVEREIGN AND INDEPENDENT STATE

On November 28, 1843, Great Britain and France jointly recognized the Hawaiian Kingdom as a sovereign and independent State, which was followed by formal recognition by the United States on July 6, 1844. By 1893, the Hawaiian Kingdom maintained over 90 legations (embassies) and consulates throughout the world, to include a legation in Washington, D.C., and consulates in the cities of New York, San Francisco, Philadelphia, San Diego, Boston, Portland, Port Townsend and Seattle. The United States also maintained a legation and consulate in Honolulu.

The Hawaiian Kingdom also held treaties with the Austro-Hungarian Empire, Belgium, Bremen, Denmark, France, Germany, Great Britain, Hamburg, Italy, Japan, Luxembourg, Netherlands, Portugal, Russia, Samoa, Spain, Switzerland, the unified Kingdoms of Sweden and Norway, and the United States. It was also a member of the Universal Postal Union.

As a constitutional monarchy, the kingdom provided universal healthcare for the aboriginal Hawaiian population since 1859 with the establishment of Queen’s Hospital, and it became the fifth country in the world to provide compulsory education for all youth in 1841. This predated compulsory education in the United States by seventy-seven years and its literacy rate was universal and second to Scotland. Also, between 1880 and 1887, a study abroad program was launched where 18 young Hawaiian subjects attended schools in the United States, Great Britain, which included Scotland, Italy, Japan and China where they studied engineering, law, foreign language, medicine, military science, engraving, sculpture, and music.

PRESIDENT GROVER CLEVELAND’S MESSAGE TO THE CONGRESS IN DECEMBER 18, 1893

After completing an investigation into the United States role in the overthrow of the Hawaiian Kingdom government on January 17, 1893, President Cleveland apprised the Congress of his findings and conclusions. In his message to the Congress, he stated, “And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.” He concluded, that “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.”

This invasion coerced Queen Lili‘uokalani, executive monarch of the Hawaiian Kingdom, to conditionally surrender to the superior power of the United States military, where she stated, “Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” The President acknowledged, that by “an act of war…the Government of…friendly and confiding people has been overthrown.”

Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13, 1893 through December 18, 1893, an agreement of peace was reached. According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the constitutional sovereign, and the Queen agreed, after being restored, to grant a full pardon to the insurgents. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.

LIMITATION OF THE UNITED STATES CONSTITUTION AND LAWS

Five years later, at the height of the Spanish-American War, President Cleveland’s successor, William McKinley, signed a congressional joint resolution of annexation on July 7, 1898, unilaterally seizing the Hawaiian Islands for military purposes. In the Lotus case, the Permanent Court of International Justice stated that “the first and foremost restriction imposed by international law upon a State is that…it may not exercise its power in any form in the territory of another State.”

This rule of international law was acknowledged by the Supreme Court in United States v. Curtiss-Wright, Corp. (1936), when the court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” In 1988, the U.S. Department of Justice’s Office of Legal Counsel concluded, it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.”

Under international law, “a disguised annexation aimed at destroying the independence of the occupied State, represents a clear violation of the rule preserving the continuity of the occupied State (Marek, Identity and Continuity of States in Public International Law, 2nd ed. 110 (1968)).”

Despite the limitations of United States legislation, the Congress went ahead and enacted the Territorial Act (1900) changing the name of the governmental infrastructure to the Territory of Hawai‘i. Fifty-nine years later, the Congress changed the name of the Territory of Hawai‘i to the State of Hawai‘i in 1959 under the Statehood Act. The governmental infrastructure of the Hawaiian Kingdom continued as the governmental infrastructure of the State of Hawai‘i.

According to Professor Matthew Craven in his 2002 legal opinion for the Hawaiian Council of Regency concluded, “That authority exercised by [the United States] over Hawai‘i is not one of sovereignty i.e. that the [United States] has no legally protected ‘right’ to exercise that control and that it has no original claim to the territory of Hawai‘i or right to obedience on the part of the Hawaiian population. Furthermore, the extension of [United States] laws to Hawai‘i, apart from those that may be justified by reference to the law of (belligerent) occupation would be contrary to the terms of international law.”

INTERNATIONAL HUMANITARIAN LAW OBLIGATES THE UNITED STATES TO ADMINISTER THE LAWS OF THE HAWAIIAN KINGDOM

Despite over a century of occupation, international humanitarian law, otherwise known as the laws of war, obligates the United States to administer the laws of the occupied State. In 2018, United Nations Independent Expert, Dr. Alfred deZayas, sent a communication from Geneva to the State of Hawai‘i that read:

“As a professor of international law, the former Secretary of the UN Human Rights Committee, co-author of [the] book, The United Nations Human Rights Committee Case Law 1977-2008, and currently serving as the UN Independent Expert on the promotion of a democratic and equitable international order, I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).”

Violations of the provisions of the 1907 Hague Regulations and the 1949 Fourth Geneva Convention are war crimes. Professor William Schabas, recognized expert in international criminal law, determined in a 2019 legal opinion for the Hawaiian Royal Commission of Inquiry, that war crimes have and continue to be committed in the Hawaiian Islands since January 17, 1893. He states, “In addition to crimes listed in applicable treaties, war crimes are also recognized under customary international law. Customary international law applies to States regardless of whether they have ratified relevant treaties. The customary law of war crimes is thus applicable to the situation in Hawai‘i. Many of the war crimes set out in the first Additional Protocol and in the Rome Statute codify customary international law and are therefore applicable to the United States despite its failure to ratify the treaties.” And according to Professor Lenzerini in his 2019 legal opinion for the Royal Commission of Inquiry, that violations of human rights in the Hawaiian Kingdom “would first of all need to be treated as war crimes, which are primarily to be considered under the lens of international criminal law.”

CONCEALING THE ILLEGAL OCCUPATION THROUGH AMERICANIZATION—DENATIONALIZATION

How could such a travesty have gone unnoticed until now? The answer is obliteration of Hawaiian national consciousness through a process of denationalization. Predating the policy of Germanization in the German occupied State of Serbia from 1915-1918, a formal policy of Americanization was initiated in 1906 that sought to obliterate the national consciousness of the Hawaiian Kingdom in the minds of school children throughout the islands. Classroom instruction was in English and if the children spoke Hawaiian they were severely punished. The Hawaiian Gazette reported, “It will be remembered that at the time of the celebration of the birthday of Benjamin Franklin, an agitation was begun looking to a better observance of these notable national days in the schools, as tending to inculcate patriotism in a school population that needed that kind of teaching, perhaps, more than the mainland children do.”

In 1907, a reporter from New York’s Harper’s Weekly visited Ka‘iulani public school in Honolulu and showcased the seeds of indoctrination. The reporter wrote:

“At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten seconds all of the 614 pupils of the school began to march out upon the great green lawn which surrounds the building.… Out upon the lawn marched the children, two by two, just as precise and orderly as you find them at home. With the ease that comes of long practice the classes marched and counter-marched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads.… ‘Attention!’ Mrs. Fraser commanded. The little regiment stood fast, arms at side, shoulders back, chests out, heads up, and every eye fixed upon the red, white and blue emblem that waived protectingly over them. ‘Salute!’ was the principal’s next command. Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice: ‘We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!’”

The word “inculcate” imports force such as to convince, implant, or to indoctrinate. Brainwashing is its colloquial term. Within three generations, the national consciousness of the Hawaiian Kingdom was effectively obliterated from the minds of the Hawaiian people.

THE RISE OF NATIONAL CONSCIOUSNESS OF THE HAWAIIAN KINGDOM

The year 1993, which marked the 100th anniversary of the American invasion and occupation, began the resurgence of Hawaiian national consciousness. It was also the year that the Congress enacted a joint resolution apologizing for the United States role in illegally overthrowing the government of the Hawaiian Kingdom. Six years later on November 8, 1999, the Permanent Court of Arbitration in The Hague accepted a dispute between Lance Larsen, a Hawaiian subject, and the restored Hawaiian government—the Council of Regency (Larsen v. Hawaiian Kingdom). Larsen alleged the Council of Regency was legally liable for “allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.” The Regency’s position was that it was not liable and that the United States was responsible under international humanitarian law. Due to the United States decision not to participate in the arbitral proceedings after being invited by the Regency and Larsen’s counsel, Larsen was unable to maintain his suit against the Hawaiian government.

These proceedings, however, drew international attention to the American occupation which prompted the NLG’s International Committee to form the Hawaiian Kingdom Subcommittee in March of 2019. The Subcommittee “provides legal support to the movement demanding that the U.S., as the occupier, comply with international humanitarian and human rights law within Hawaiian Kingdom territory, the occupied. This support includes organizing delegations and working with the United Nations, the International Committee of the Red Cross, and NGOs addressing U.S. violations of international law and the rights of Hawaiian nationals and other Protected Persons.”

In December of 2019, the NLG’s membership voted and passed a resolution where “the National Lawyers Guild calls upon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.”

  • NLG strongly condemns the prolonged and illegal occupation of the Hawaiian Islands.
  • NLG also condemns the unlawful presence and maintenance of the United States Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands, which has caused the islands to be targeted for nuclear strike by North Korea, China and Russia.
  • NLG calls for the United States to immediately comply with international humanitarian law and begin to administer the laws of the Hawaiian Kingdom as the occupied State.
  • NLG calls on the legal and human rights community to view the United States presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.
  • NLG supports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai‘i and its Counties comply with international humanitarian law as the administration of the Occupying State.
  • NLG calls on all United Nations member States and non-member States to not recognize as lawful a situation created by a serious violation of international law, and to not render aid or assistance in maintaining the unlawful situation. As an internationally wrongful act, all States shall cooperate to ensure the United States complies with international humanitarian law and consequently bring to an end the unlawful occupation of the Hawaiian Islands.

The National Lawyers Guild, whose membership includes lawyers, legal workers, jailhouse lawyers, and law students, was formed in 1937 as the United States’ first racially-integrated bar association to advocate for the protection of constitutional, human and civil rights.

Attorneys for Mauna Kea Protectors Argue State of Hawai‘i is Engaging in “War Crimes”

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This past Monday defense lawyers Dexter Kaiama and Stephen Laudig filed their response to the State of Hawai‘i Attorney General’s opposition to their clients’ motion to dismiss. They argued that the Attorney General “cannot be allowed to knowingly and with intent benefit from the ‘war crime’ of usurpation of sovereignty that consists in the ‘imposition of legislation or administrative measures by the occupying power,’ which, in effect, leads to the violation of international law by denying a Protected Person of the right to a fair and regular trial by a properly constituted court. The prohibition of ‘war crimes’ is a jus cogens norm under customary international law and neither the [Attorney General] nor this Court can derogate from these peremptory norms.”

Kaiama and Laudig represent Deena Oana-Hurwitz, Loretta and Walter Ritte, Pualani Kanakaole-Kanahele, Kaliko Kanaele, Gene P.K. Burke, Alika Desha and Desmon Haumea. Both attorneys are also members of the National Lawyers Guild that “provides legal support to the movement demanding that the U.S., as the occupier, comply with international humanitarian and human rights law within Hawaiian Kingdom territory, the occupied.”

After state law enforcement officers arrested 39 Kia‘i Mauna (protectors of the mountain) who were opposing the building of the Thirty-Meter Telescope (TMT) on Mauna Kea on July 17, 2019, the Attorney General filed charges of obstruction in the Hilo District Court. On behalf of the 8 defendants, Kaiama and Laudig filed their motions to dismiss on November 13, 2019, which provided clear and unequivocal evidence that because the Hawaiian Kingdom continues to exist under international law the District Court “is not a regularly constituted court” and therefore does not have lawful jurisdiction to preside over the case.

An opposition to the motion to dismiss was filed by the Attorney General on December 6, 2019. In its opposition, the Attorney General provided no counter evidence of the Hawaiian Kingdom’s existence and that the Hawaiian Islands have never been lawfully a part of the United States. Instead, the Attorney General argues three points as to why Judge Kanani Lauback should deny defendants’ motion to dismiss. The first argument is that the political question doctrine prevents courts from adjudicating the legality of the overthrow of the Hawaiian Kingdom and the validity of the State of Hawai‘i. Second, the legal status of the State of Hawai‘i has been adjudicated. And, third, international law does not override acts of Congress.

On December 9, Kaiama and Laudig filed a reply that starts off by stating that the Attorney General’s “statement of relevant facts violates the principle of jus cogens and is not relevant to the Court’s consideration of the instant motion.” Jus cogens is a legal term that federal courts say “enjoy[s] the highest status within international law,” and as such cannot be denigrated. International crimes, which includes war crimes, are jus cogens norms.

In its reply, the defense pointed out that the unlawful imposition of United States laws and administrative policies constitute a war crime under customary international law. For their evidence, the defense cited a legal opinion written by Professor William Schabas, a leading expert in international criminal law and war crimes, titled Legal opinion on war crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893. The defense argues that all “three fit squarely within the provisions of United States internal law—being legislation and administrative rules, which customary international law precludes a State from invoking as justification for its failure to comply with Article 43 of the Hague Regulations.” Article 43 of the Hague Regulation is a ratified treaty by the United States that obligates an Occupying State to administer the laws of the Occupied State. In this case the Occupying State is the United States and the Occupied States is the Hawaiian Kingdom.

A hearing on the motion to dismiss is scheduled for 8:30am on Friday, December 13, 2019, at the Hilo District Court.

Hawaiian Royal Commission of Inquiry

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In response to over a century of the United States’ violations of international humanitarian law and the commission of war crimes with impunity that have occurred within the territory of the Hawaiian Kingdom, the acting Council of Regency established the Royal Commission of Inquiry (Commission), by proclamation, on April 17, 2019. The Commission was established by “virtue of the prerogative of the Crown provisionally vested in [the Council of Regency] in accordance with Article 33 of the 1864 Constitution, and to ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.”

The Commission’s mandate “shall be to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context”—Article 1(2).  To accomplish this mandate, Dr. David Keanu Sai”—Article 1(1), who currently serves as Minister of the Interior and Minister of Foreign Affairs ad interim, shall head the Commission and has been authorized to seek “recognized experts in various fields”—Article 3, whose opinions shall form the basis of the Commission’s reports.

The Commission shall first come out with a preliminary report that will provide the “geographical scope and time span of the investigation”—Article 1(2), and the identification of the specific war crimes to be investigated as well as a list of human rights recognized during belligerent occupations. The preliminary report will be followed by periodic reports that will identify the perpetrators of these war crimes and human rights violations. These periodic reports will have the evidential basis of mens rea and actus reus that have a direct nexus to the elements that constitute a particular war crime(s) as provided in the legal opinion of Professor William Schabas. War crimes have no statute of limitations, and, for those war crimes that are recognized under customary international law, States are obligated to prosecute perpetrators of war crimes under its universal jurisdiction. 

These reports “will be presented to the Council of Regency, the Contracting Powers of the 1907 Hague Convention, IV, respecting the Laws and Customs of War on Land, the Contracting Powers of the 1949 Geneva Convention, IV, relative to the Protection of Civilian Persons in Time of War, the Contracting Powers of the 2002 Rome Statute, the United Nations, the International Committee of the Red Cross, and the National Lawyers Guild”—Article 1(3).

The Commission has been convened with experts in international law in the fields of State continuity, humanitarian law, human rights law and self-determination of a people of an existing State under belligerent occupation. These experts authored legal opinions for the Commission, which include: Professor Matthew Craven, University of London SOAS, School of Law; Professor William Schabas, Middlesex University London, School of Law; and Professor Federico Lenzerini, University of Siena (Italy), Department of Political and International Sciences. Dr. Sai, who is also from the University of Hawai‘i, will also provide his expertise in the legal and political history of Hawai‘i.

Dr. David Keanu Sai, Memorandum—Hawaiian Constitutional Governance (2019).

Dr. David Keanu Sai, Memorandum—United States Belligerent Occupation of the Hawaiian Kingdom (2019).

Professor Matthew Craven, Legal Opinion—Continuity of the Hawaiian Kingdom under international law (2002).

Professor William Schabas, Legal Opinion—War crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893 (2019).

Professor Federico Lenzerini, Legal Opinion—International Human Rights Law and Self-Determination of Peoples Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893 (2019)

Middlesex University London to Host Dr. Keanu Sai’s Presentation on Hawai‘i’s Occupation and War Crimes

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The United States’ Prolonged Occupation of Hawai‘i: War Crimes and Human Rights Violations

Date and Time: Tuesday, 15 October 2019 17:30-19:00 BST

Location: Middlesex University The College Building, 2nd Floor, C219-220 The Burroughs London NW4 4BT United Kingdom

Registration: The event is free and open to the public as well as faculty, staff and students of Middlesex University London. Click here to Register

About this Event: From a British Protectorate in 1794 to an Independent State in 1843, the Hawaiian Kingdom’s government was illegally overthrown by U.S. forces in 1893. U.S. President Cleveland, after conducting a presidential investigation into the overthrow, notified the Congress that the Hawaiian government was overthrown by an “act of war” and that the U.S. was responsible. Annexationists in the Congress thwarted Cleveland’s commitment, by exchange of notes with Queen Lili‘uokalani, to restore the Hawaiian government and Hawai‘i was unilaterally annexed in 1898 during the Spanish-American War after Cleveland left office in order to secure the islands as a military outpost. Today there are 118 U.S. military sites in the islands, headquarters for the U.S. Indo-Pacific Unified Military Command, and is currently targeted for nuclear strike by North Korea, China, and Russia.

This legal and political history of Hawai‘i has been kept from the international community until the Larsen v. Hawaiian Kingdom arbitral proceedings were initiated in 1999 at the Permanent Court of Arbitration, The Hague, Netherlands. At the core of the dispute were the unlawful imposition of U.S. laws, which led to grave breaches of the Fourth Geneva Convention by the U.S. against Lance Larsen, a Hawaiian subject, and whether the Hawaiian Kingdom, by its Council of Regency, was liable for the unlawful imposition of U.S. laws in the territory of an occupied State.

This talk by Dr. Keanu Sai, who served as Agent for the Hawaiian Kingdom in the Larsen case, will provide a historical and legal context of the current situation in Hawai‘i and the mandate of the Royal Commission of Inquiry to investigate war crimes and human rights violations taking place in Hawai‘i. Dr. Sai encourages attendees to view beforehand “The acting Council of Regency: Exposing the American Occupation of the Hawaiian Kingdom” at:

Mauna Kea: Maui County Official Says UH Lease to TMT “Invalid”

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WAILUKU, Hawaii – In her second letter to University of Hawaii President David Lassner, Maui County Councilmember Tamara Paltin has reiterated her concern over what appears to be the invalidity of General Lease S-4191, originally granted to University of Hawaii by the Board of Land and Natural Resources in 1968 and now subleased to TMT.

President Lassner assured Paltin in his July 18th response to her July 12th letter that “the project has all approvals required by law.” However, his brief correspondence did not address the concerns for native tenant rights and the war crime of destruction of property presented in Paltin’s original letter.

Councilmember Paltin reminded President Lassner that the general public’s understanding of Hawaii’s legal and political history has evolved significantly since the lease was originally granted to the University of Hawaii. In her latest letter, Paltin has suggested that the information that has come to light since 1968, including that found in the Apology Resolution of 1993, sets the general lease in a new context.

Referencing this new understanding of Hawaii’s legal history, Paltin wrote, “The United States Congress, in its Apology Resolution in 1993 (107 Stat. 1512), admitted…the so-called transfer of Hawaiian government and crown lands, which included the ahupua‘a of Ka‘ohe, to the United States in 1898, was done ‘without the consent of or compensation to the Native Hawaiian people of Hawai‘i or their sovereign [Hawaiian Kingdom] government.’” Therefore, because the transfer of property occurred without consent, Paltin continued, the sublease to TMT is invalid.

Councilmember Paltin once again requested that President Lassner have the University’s legal counsel review the assessment of the situation presented in her original letter and defend the validity of the general and sublease.

A full copy of Councilmember Tamara Paltin’s 07/26/19 letter to UH President Lassner can be located at mauicounty.us/paltin/.

National Holiday: Restoration Day

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Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” (La Ho‘iho‘i) and it is directly linked to another holiday observed on November 28th called “Independence day” (La Kuoko‘a). Here is a brief history of these two celebrated holidays.

In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”

While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe. News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.

The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.

The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.

War Crime: State of Hawai‘i Supreme Court Admits Mauna Kea Summit has been Destroyed

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The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.

War Crime of Destruction of Property on the Summit of Mauna Kea

According to Article 55 of the 1907 Hague Convention, IV, “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the [occupied] State, and situated in the occupied territory. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.” As the title to Ka‘ohe remains vested in the Hawaiian government as public land there is a duty that anything done on public property must be in accordance with the rules of usufruct, which, by definition, is the “right of using and enjoying and receiving the profits of property that belongs to another.”[1]

NOTE: The international laws of occupation apply to hostile States at war with each other or occupied States that have not engaged in the war but are neutral. Belligerent occupation is a term used to apply where the territory of a foreign country is occupied without the consent of the occupied State. Neutral States, such as the Hawaiian Kingdom, can be belligerently occupied and the laws of occupation still applies.

Article 147 of the Geneva Convention, IV, lists as a grave breach the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” This grave breach is expanded under Article 53, any “destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State [Hawaiian Kingdom], or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” The Commentary to the Geneva Convention, IV, states:

In the very wide sense in which the Article must be understood, the prohibition covers the destruction of all property (real or personal), whether it is the private property of protected persons (owned individually or collectively), State property, that of the public authorities (districts, municipalities, provinces, etc.) or of co-operative organizations. The extension of protection to public property and to goods owned collectively, reinforces the rule already laid down in the Hague Regulations, Articles 46 and 56 according to which private property and the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences must be respected.[2]

Section 402 of the United States Army Field Manual 27-10 provides:

Real property of the [occupied] State which is essentially of a non-military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless such destruction is rendered absolutely necessary by military operations … The occupant does not have the right of sale or unqualified use of such property. As administrator, usufructuary, he should not exercise his rights in such a wasteful and negligent manner as seriously to impair its value.

In international criminal law, the actus reus present on Mauna Kea are the acts of destruction of property belonging to the Hawaiian Kingdom as the Occupied State. The mens rea requires that the perpetrator act with intent to destroy the property and with knowledge that the owner of the property is the Hawaiian Kingdom government. The actus reus and mens rea are met as evidenced in the State of Hawai‘i Supreme Court decisions In the Matter of Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Ka‘ohe Mauka, Hamakua, Hawai‘i, TMK (3) 404015:009.

On October 30, 2018, the Hawai‘i Supreme Court affirmed a decision of the Board of Land and Natural Resources which issued a conservation district use permit for TMT near the summit of Mauna Kea.[3] In its decision, the majority of the court did not, because it could not, refute the claim that “the ahupua‘a of Ka‘ohe in the District of Hamakua are lands still held by the Hawaiian Kingdom.”[4] Somewhat amazing was its open acknowledgement that eleven observatories built since 1970[5] on the summit of Mauna Kea did destroy the property.

The majority stated:

Construction of these observatories and roads has had significant cumulative adverse impacts on cultural, archaeological, and historic resources in the MKSR [Mauna Kea Science Reserve]. The observatories have also had significant cumulative adverse impacts on geology, soils, and slope stability in the MKSR because they significantly modified the preexisting terrain, the tops of certain pu‘u were flattened to accommodate observatory foundations, and some materials removed from the pu‘u were pushed over their sides, creating steeper slopes more susceptible to disturbance.[6]

Associate Justice Michael Wilson dissented from the majority of the court and filed his dissent on November 9, 2018. At the heart of Justice Wilson’s dissent was the destruction of the summit of Mauna Kea. He acknowledged that

the party responsible for the substantial adverse impact to this protected resource is the State of Hawai‘i (State). It is uncontested that the State authorized previous construction within the Astronomy Precinct of the MKSR that created a substantial adverse impact. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. Now the most extensive construction project yet proposed for the Astronomy Precinct—a 180-foot building 600 feet below the summit ridge of Mauna Kea—is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area.[7]

He concluded that the “substantial adverse impacts to cultural resources presently existing in the Astronomy Precinct of Mauna Kea combined with the impacts from TMT—a proposed land use that eclipses all other telescopes in magnitude—would constitute an impact on existing cultural resources that is substantial and adverse.”[8]

[1] Black’s Law, p. 1544.

[2] Oscar M. Uhler, Henri Coursier, Frédéric Siordet, Claude Pilloud, Roger Boppe, René-Jean Wilhelm and Jean Pierre Schoenholzer, Commentary IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva: International Committee of the Red Cross, 1958, p. 301.

[3] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), available at: http://www.courts.state.hi.us/wp-content/uploads/2018/10/SCOT-17-0000777.pdf.

[4] Id., p. 45.

[5] The University 2.2-meter Telescope (1970), the United Kingdom Infrared Telescope (“UKIRT”)(1979)(now owned by the University), the NASA Infrared Telescope Facility (operated by the University)(1979), the Canada-France-Hawaiʻi Telescope (1979); (5) the California Institute of Technology (“Caltech”) Submillimeter Observatory (“CSO”)(1986), the James Clerk Maxwell Telescope (“JCMT”)(1986)(now owned by the University), the Very Long Baseline Array (1992), the W. M. Keck Observatory, first phase (1992) and second phase (1996), the Subaru Observatory (“Subaru”)(1999), the Gemini North Observatory (1999), and the Submillimeter Array (2002).

[6] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 5-6.

[7] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Dissenting Opinion, Wilson, J. (Nov. 9, 2018), p. 5, available at: http://www.courts.state.hi.us/…/11/SCOT-17-0000777dis.pdf.

[8] Id., p. 36.

UH’s Lease from State of Hawai‘i for the Summit of Mauna Kea is Invalid

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The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.

Invalidity of General Lease No. S-4191

Under General Lease No. S-4191 dated June 21, 1968, the Board of Land and Natural Resources of the State of Hawai‘i, as lessor, issued a 65-year lease to the University of Hawai‘i with a commencement date of January 1, 1968 and a termination date of December 31, 2033. The lease is comprised of 11,215.554 acres, more or less, being a portion of Government lands of the ahupua‘a of Ka‘ohe situated at Hamakua, Island of Hawai‘i identified under Tax May Key: 3rd/4.4.15:09.

The State of Hawai‘i claims to have acquired title under Section 5(b) of the 1959 Hawai‘i Admissions Act, Public Law 86-3 (73 Stat. 4), whereby “the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” The United States derives its title from the 1898 Joint Resolution of Annexation (30 Stat. 750), which states “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution…to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands.”

The Republic of Hawai‘i proclaimed itself on July 3, 1894, by a convention comprised of appointed members of the Provisional Government and eighteen “elected” delegates. The Provisional Government proclaimed itself on January 17, 1893 and claimed to be the successor of the Hawaiian Kingdom. The Hawaiian Kingdom’s title derives from the 1848 Act Relating to the Lands of His Majesty The King and of the Government, whereby the ahupua‘a of Ka‘ohe is “Made over to the Chiefs and People, by our Sovereign Lord the King, and we do hereby declare those lands to be set apart as the lands of the Hawaiian Government, subject always to the rights of tenants.”

According to President Grover Cleveland, in his message to the Congress after investigating the illegal overthrow of the Hawaiian Kingdom government that took place on January 17, 1893, the Provisional Government “was neither a government de facto nor de jure.”[1] He did not consider it a government. The President also concluded that “the provisional government owes its existence to an armed invasion by the United States.”[2] Being a creature, or creation, of the US, it could not claim to be the lawful successor of the Hawaiian Kingdom government with vested title to the ahupua‘a of Ka‘ohe. As the successor to the Provisional Government, the Republic of Hawai‘i, as it self-declared successor, could not take any better title than the Provisional Government and hence did not have title to Ka‘ohe. The U.S. Congress in the 1993 Apology Resolution noted that the Republic of Hawai‘i was “self-declared.”[3]

The United States claims to have acquired title to Ka‘ohe, by cession, from the Republic of Hawai‘i under the 1898 Joint Resolution of Annexation. International law recognizes that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State.”[4] The Joint Resolution of Annexation is not “an agreement embodied in a treaty.” It is a U.S. municipal law from the Congress merely asserting that cession took place. The situation is not unlike a neighbor holding a family meeting and claiming that they have agreed that your house is now their house.

In a debate on the Senate floor on July 4, 1898, Senator William Allen stated:

The Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated. In other words, the Constitution and statutes can not reach across the territorial boundaries of the United States into the territorial domain of another government and affect that government or persons or property therein.[5]

The joint resolution is ipso facto null and void.[6]

In 1988, the U.S. Department of Justice, Office of Legal Counsel (“OLC”) issued a legal opinion on the lawfulness of the annexation of Hawai‘i by a joint resolution.[7] In its opinion, it cited constitutional scholar Westel Willoughby:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was denied, but it was denied that this might be done by a simple legislative act … Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.[8]

The OLC concluded, “It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.”[9] The United States cannot produce any evidence of a conveyance of the ahupua‘a of Ka‘ohe from a grantor, vested with the title. All it can produce is a joint resolution of Congress. This is not a conveyance from a foreign State ceding territory.

Instead of providing evidence of a conveyance of territory, i.e. treaty of cession, the State of Hawai‘i Supreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT, SCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of Hawai‘i written by Professor Jon Van Dyke.

The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawaiʻi by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196 (1901), that “territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.[10]

It is unclear what Professor Van Dyke meant when he stated that the U.S. Supreme Court “gave tacit recognition to the legitimacy of the annexation of Texas and Hawai‘i by joint resolution,” because tacit, by definition, is to be “understood without being openly expressed or stated.”[11] Furthermore, this statement is twice irrelevant: first, the Court as a third party to any cession of foreign territory has no standing to make such a conclusion as to what occurred between the ceding and receiving States; and, second, its opinion is a fabrication or what American jurisprudence calls a legal fiction. Legal fictions treat “as true a factual assertion that plainly was false, generally as a means to avoid changing a legal rule that required a particular factual predicate for its application.”[12]

According to Professor Smith, a “judge deploys a new legal fiction when he relies in crafting a legal rule on a factual premise that is false or inaccurate.”[13] These “new legal fictions often serve a legitimating function, and judges may preserve them—even in the face of evidence that they are false—if their abandonment would have delegitimating consequences.”[14]

The proposition that Texas and Hawai‘i were both annexed by joint resolutions of Congress is clearly false. In the case of Texas, Congress consented to the admission of Texas as a State by joint resolution on March 1, 1845 with the following proviso, “Said State to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other governments.” This condition was referring to Mexico because as Texas was comprised of insurgents who were fighting for their independence, Mexico still retained sovereignty and title to the land. In its follow up joint resolution on December 29, 1845 that admitted Texas as a State of the Union, it did state that the Congress consented “that the territory properly included within, and rightfully belonging to, the Republic of Texas.” These actions taken by the Congress is what sparked the Mexican-American War in 1846.

Congress’ statement of “rightfully belonging” is an opinion and the resolution mentions no boundaries. The transfer of title to the territory, which included the territory comprising Texas, came three years later on February 2, 1848 in a treaty of peace that ended the Mexican-American War.

Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. “The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte.”[15] Rio Brava del Norte is the southern tip of Texas. If Texas was indeed annexed in 1845 by a joint resolution with its territory intact, there was no reason for the treaty to specifically include the territory of Texas. If it were true that Texas territory was ceded in 1845, Article V of the treaty would have started the boundary line just west of the Texas city of El Paso, which is its western border, and not from the Gulf of Mexico at its southern border. The truth is that the territory of Texas was not annexed by Congress in 1845 but was ceded by Mexico in 1848. The Rio Grande river is the southern border for the State of Texas.

With regard to the so-called annexation of Hawai‘i in 1898 by Congress, there is no treaty ceding Hawaiian territory as in the case of Texas. Like the Texas resolution, Congress stated,

Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution to ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining…

The reference to consent by its constitution is specifically referring to Article 32, which states, the “President, with the approval of the Cabinet, is hereby expressly authorized and empowered to make a Treaty of Political or Commercial Union between the Republic of Hawaii and the United States of America, subject to the ratification of the Senate.”[16] There is no treaty between the so-called Republic of Hawai‘i and the United States. Furthermore, a constitutional provision is not an instrument of conveyance as a treaty would be. So without a treaty from the Hawaiian Kingdom government as the ceding State vested with the sovereignty and title to government lands, which includes the ahupua‘a of Ka‘ohe, there was no change in the ownership of the government lands.

Furthermore, Hawaiians of the day knew there was no treaty as evidenced in the Maui News newspaper published October 20, 1900. The Editor wrote,

Thomas Clark, a candidate for Territorial senator from Maui holds that it was an unconstitutional proceeding on the part of the United States to annex the Islands without a treaty, and that as a matter of fact, the Island[s] are not annexed, and cannot be, and that if the democrats come into power they will show the thing up in its true light and demonstrate that that the Islands are de facto independent at the present time.

The legal fiction that Texas and Hawai‘i were annexed by a joint resolution of the Congress is just a patently false when measured “against the results of existing empirical research.”[17] For the State of Hawai‘i Supreme Court to restate, and embrace, this falsifiable legal fiction is simply a trick that allows it to fabricate its own false and falsifiable fiction regarding the State of Hawai‘i. In its TMT decision the Court, in conflict with overwhelming evidence, stated, “[W]e reaffirm that ‘[w]hatever may be said regarding the lawfulness’ of its origins, ‘the State of Hawai‘i…is now a lawful government.’”[18] For the State of Hawai‘i to be a “lawful government” it must be vested with lawful authority absent of which it is not lawful. The State of Hawai‘i Supreme Court, being a branch of the State of Hawai‘i itself, cannot declare it “is now a lawful government” without making reference to some intervening factor that vested the State of Hawai‘i with lawful authority.

When addressing the lawful authority and sovereignty of the United States of America, the United States Supreme Court specifically referred to a particular and significant intervening factor. It stated that as “a result of the separation from Great Britain by the Colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the Colonies severally, but to the Colonies in their collective and corporate capacity as the United States of America.” The Court was referring to “the Treaty of Paris of September 3, 1783, by which Great Britain recognized the independence of the United States.”[19]

It has been erroneously assumed that the US Congress vested the State of Hawai‘i with lawful authority in the 1959 Statehood Act[20] in an exercise of the constitutional authority of Congress to admit new States into the Federal union under Article IV, section 3, clause 1. There is no provision in the US constitution for the admission of a state to the union that is on territory not owned by the US. So before the US Congress can admit a new State to the US the US must “own” the territory. According to the United States Supreme Court:

Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens…, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.[21]

Since the Hawaiian Islands were never annexed by the United States via treaty, Congressional acts, which are municipal laws, may only operate on the territory of the United States. The United States Supreme Court is relatively clear on this point and has stated that the “municipal laws of one nation do not extend in their operation beyond its own territory except as regards its own citizens.”[22] In another decision, the United States Supreme Court reiterated, that “our Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens.”[23]

Under international law, the United States is an occupying power in the Hawaiian Islands and as such the occupying Power is obligated, under Article 43 of the 1907 Hague Convention, IV, and Article 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom laws. In his communication to the members of the Judiciary of the State of Hawai‘i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred deZayas, reiterated this obligation under international law.

I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States) (Enclosure “6”).

The United States never acquired any kind of title to Ka‘ohe and, since one can only convey what one has, it could not convey what it did not have to the State of Hawai‘i under Section 5(b) of the 1959 Admissions Act. Thus the State of Hawai‘i was never lawfully vested with any title to the ahupua‘a of Ka‘ohe, and therefore its so-called general lease no. S-4191 to the University of Hawai‘i dated June 21, 1968 is defective. Under Hawaiian Kingdom law, the ahupua‘a of Ka‘ohe is government land under the management of the Ministry of  the Interior and not the State of Hawai‘i Board of Land and Natural Resources. Consequently, all 10 subleases from the University of Hawai‘i that extend to December 31, 2033 are defective as well, which include:

  • National Aeronautics and Space Administration dated November 29, 1974;
  • Canada-France-Hawai‘i Telescope Corporation dated December 18, 1975;
  • Science Research Council dated January 21, 1976;
  • California Institute of Technology dated December 20, 1983;
  • Science and Engineering Research Council dated February 10, 1984;
  • California Institute of Technology dated December 30, 1985;
  • Associated Universities, Inc., dated September 28, 1990;
  • National Astronomical Observatory of Japan dated June 5, 1992;
  • National Science Foundation dated September 26, 1994; and
  • Smithsonian Institution dated September 28, 1995.

 As such, the University of Hawai‘i’s sublease to TMT International Observatory, LLC, is also defective. Therefore, the University of Hawai‘i cannot sublease what it does not have to TMT International Observatory LLC.

[1] President Cleveland’s Message to the Congress (Dec. 18, 1893), p. 453, available online at https://hawaiiankingdom.org/pdf/Cleveland’s_Message_(12.18.1893).pdf.

[2] Id., p. 454.

[3] 107 Stat. 1510.

[4] L. Oppenheim, International Law, vol. 1, second edition, 286 (1912).

[5] 31 Cong. Rec. 6635 (1898).

[6] 33 Cong. Rec. 2391 (1900).

[7] Douglas Kmiec, Department of Justice, “Legal Issues Raised by Proposed Presidential Proclamation to Extend the Territorial Sea,” 12 Opinions of the Office of Legal Counsel 238 (1988).

[8] Id., p. 252.

[9] Id.

[10] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.

[11] Black’s Law, 6th ed. (1990), p. 1452.

[12] Peter J. Smith, “New Legal Fictions,” 95 The Georgetown Law Journal 1435, 1437 (2007).

[13] Id.

[14] Id., p. 1440.

[15] Treaty of Guadalup Hidalgo, 9 Stat. 926 (1848).

[16] Constitution of the Republic of Hawai‘i, Roster Legislatures of Hawaii, 1841-1918 (1918) p. 198.

[17] Smith, “New Legal Fictions,” p. 1439.

[18] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.

[19] United States v. Louisiana et al., 363 U.S. 1, 68 (1960).

[20] 73 Stat. 4.

[21] United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).

[22] The Appollon, 22 U.S. (9 Wheat.) 362 (1824).

[23] United States v. Belmont, 301 U.S. 324, 332 (1936).

HULI Statement on Start of TMT Construction

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Aloha nui kākou,

Today David Ige reaffirmed the State of Hawaiʻi’s commitment to ensure the construction of the Thirty Meter Telescope on Maunakea beginning Monday, July 15, 2019. Ige also reaffirmed the State’s commitment to protect the interests of foreign, private corporations rather than the rights of the people of Hawaiʻi through a long, coordinated and organized mass mobilization of Hawaʻi law enforcement at the expense of Hawaiʻi tax-payers. 

ʻAkahi, Kanaka Maoli have never given consent to the construction of the TMT on Maunakea. In fact, we have overwhelmingly demonstrated our opposition to the construction of the TMT in every venue; court cases, testimonies, declarations, hearings, forums, and community meetings.  The most explicit examples were the series of large protests and arrests of dozens of Kiaʻi (Protectors) on Maunakea which physically halted the construction of the TMT in 2015. 

ʻAlua, Kanaka Maoli reassert our rights to our national crown and government lands.  The TMT Corporation has no interest or ownership in the land.  The summit of Maunakea, specifically the exact location where the TMT Corporation hopes to build their telescope, are national lands of Kanaka Maoli. Indeed, the TMT Corporation has a mere sublease from the University of Hawaiʻi.

ʻAkolu, we reaffirm that Maunakea is sacred to Kanaka Maoli.  The summit of Maunakea is kapu as the highest point in the Pacific.  Therefore, like all humanity, we have sacred places that should be recognized and protected.

ʻAhā, we emphasize that the summit of Maunakea is a conservation district.  It is environmentally sensitive and pristine.  Yet the TMT Corporation plans to build a telescope that is over 180 feet tall in a place that lawfully should be afforded the highest level of environmental protection as a recognized conservation district.

ʻAlima, Kanaka Maoli will continue to assert and increase stewardship of Mauna Kea.  We affirm our rights as hoaʻāina to access and manage our national lands, to practice our religion and culture and to protect these lands from further destruction and desecration.

Therefore, while the TMT Corporation and the State of Hawaiʻi continue to ignore our massive opposition and existence as a living people, Kanaka Maoli have no other choice but to engage in peaceful and nonviolent direct action. 

We will forever fight the TMT, until the last aloha ʻāina.  Truth and history are on our side, and our commitment and mana is only rising.  We are prepared for intense and lengthy struggles but stand firm in Kapu Aloha – peace and nonviolence.  We ask everyone to honor this kuleana and to conduct ourselves in PONO.

Maui County Council member Tamara Paltin Sought Dr. Keanu Sai’s Expertise and Calls upon UH President Lassner to halt TMT Construction Due to Invalidity of General Lease and War Crimes

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WAILUKU, Hawaii – In an urgent plea, Maui County Council member Tamara Paltin announced that she has asked University of Hawaii President David Lassner to put a hold on moving forward with the construction of the Thirty Meter Telescope (“TMT”) planned for the summit of Mauna Kea. 

Paltin issued a letter of inquiry to President Lassner on Friday, July 12th in response to Governor Ige’s news conference last week announcing that construction would begin next week on July 15th.  In her letter Paltin expressed “grave concerns for the safety of Maui County’s residents and all individuals mobilizing to access and assemble atop Mauna Kea.”    

It is anticipated that kupuna to keiki and all ages in betweenfrom all islands will be present to exercise traditional Native Hawaiian cultural and religious access, as well as protest the construction of the TMT.  With emotions high, extreme weather conditions, law enforcement presence and talk of the potential deployment of LRAD (Long-Range Acoustic Hailing Devices) for crowd control, Councilmember Paltin fears for the safety and protection of all who will be present on the summit.     

Councilmember Paltin sought out insight from Dr. Keanu Sai who has served as a resource for and provided training presentations to the Council’s Planning and Sustainable Land Use Committee, of which Paltin chairs, concerning the proposed construction of the TMT on the summit of Mauna Kea, in light of the ahupua`a of Ka`ohe being so-called ceded lands.  

Paltin’s letter reiterates Dr. Sai’s focus on three topics underlying the proposed TMT construction: the invalidity of General Lease No. S-4191 between the State of Hawai`i Board of Land and Natural Resources, as the lessor, and the University of Hawai`i, as the lessee; the war crime of destruction of property on the summit of Mauna Kea by the previous telescopes; and the third topic of native tenant rights within the  ahupua`a of Ka`ohe, and describes Dr. Sai’s response as “quite illuminating to say the least.”

Councilmember Paltin requested that President Lassner have the University’s legal counsel review Dr. Sai’s assessment of the situation, and stated that, “this is not a political issue, but an issue of the rule of law, which is foundational, and for our communities throughout the islands to have confidence that the State of Hawai`i officials, to include the Counties, believe in and abide by.”

A full copy of Councilmember Tamara Paltin’s letter to UH President Lassner can be located at mauicounty.us/paltin/.

For more information, please contact Councilmember Paltin’s office.