Category Archives: International Law

The Day of Reckoning Has Finally Arrived for the Insurgency of 1893

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Determined to hold to account individuals that have committed war crimes and human rights violations throughout the territorial jurisdiction of the Hawaiian Kingdom under this prolonged occupation by the United States, the Council of Regency, by Proclamation on April 17, 2019, established a Royal Commission of Inquiry (“Royal Commission”) in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.”

In accordance with Hawaiian administrative precedence in addressing crises, the Royal 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.” His Excellency, Dr. David Keanu Sai, Ph.D., was designated as Head of the Royal Commission, and Dr. Federico Lenzerini, Ph.D., as Deputy Head. Pursuant to Article 3 – Composition of the Royal Commission, the Head of the Royal Commission has been authorized to seek “recognized experts in various fields.”

The Royal Commission has acquired legal opinions from the following experts in international law: on the subject of the continuity of the Hawaiian Kingdom under international law, Professor Matthew Craven from the University of London, SOAS, School of Law; on the subject of the elements of war crimes committed in the Hawaiian Kingdom since 1893, Professor William Schabas, Middlesex University London, School of Law; and on the subject of human rights violations in the Hawaiian Kingdom and the right of self-determination by the Hawaiian citizenry, Professor Federico Lenzerini, University of Siena, Italy, Department of Political and International Studies. These experts, to include the Head of the Royal Commission, are the authors of chapters 1, 2, 3, 4, and 5 of Part II of the Royal Commission’s eBook – The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

According to Article 1(2), “The purpose of the Royal Commission 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. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”

Article 1(3) provides, “The results of the investigation 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 in the form of a report.”

In Restatement (Third) of Foreign Relations Law of the United States, it recognizes that when “determining whether a rule has become international law, substantial weight is accorded to…the writing of scholars.” According to Black’s Law, 6th ed., United States courts have acknowledged that the “various Restatements have been a formidable force in shaping the disciplines of the law covered [and] they represent the fruit of the labor of the best legal minds in the diverse fields of law covered.” The Restatement drew from Article 38(1)(d) of the Statute of the International Court of Justice, which provides that “the teachings of the most highly qualified publicists of the various nations [are] subsidiary means for the determination of rules of [international law].” These “writings include treatises and other writings of authors of standing.” Professors Craven, Schabas, and Lenzerini are “authors of standing” and their legal opinions are “sources” of the rules of international law.

The Royal Commission would first provide Preliminary Reports on various subjects relative to its mandate, followed by periodic Reports of its investigation of war crimes that meet the constituent elements of mens rea and actus reus, and human rights violations.

Criminal Report no. 22-0001

The day of reckoning has finally arrived through Hawaiian law for those individuals who have been found “guilty” of the crime of treason. After three years of preliminary reports, the Royal Commission has just published its first Criminal Report no. 22-0001 regarding the insurgency of 1893 and attainder of treason.

For over a century, members of the Provisional Government and its successor the Republic of Hawai‘i were not held accountable for their treasonous actions on January 17, 1893, in the unlawful overthrow of the government of the Hawaiian Kingdom under the protection of U.S. troops that invaded Honolulu the day before. Although war crimes and human rights violations did not exist at the time under international law, the high crime of treason did under Hawaiian Kingdom law.

Some of the insurgents came to be known as the Big Five, a collection of five large businesses, that wielded considerable political and economic power after 1893 to benefit themselves. The Big Five were Castle & Cooke, Alexander & Baldwin, C. Brewer & Co., American Factors (now Amfac), and Theo H. Davies & Co. In a May 3, 1940 report on the Hawaiian Islands by Elwyn J. Eagen to the Congressional Special House Committee on the National Labor Relations Act, he stated:

Virtually every business of any importance is owned or controlled by the so-called “Big-Five.” These companies have interlocking directorships. This method of obtaining joint action extends not only to the companies named but also to various subsidiary corporations. Most of the land in the Islands is owned or controlled by the same group which manage the affairs of the “Big Five.” There are no independent banks on the Islands. All of the banks are controlled by virtually the same people who are interested in the “Big-Five.” By controlling loans, the officers of the “Big Five” are able to keep semi-independent business men from engaging in activities hostile to their interests. They are also able to know the financial condition of all the inhabitants of the Islands. Persons who do not comply with the wishes of the “Big Five” are refused loans or extension and are forced out of business.

In the Statute Laws of 1846, section 7, it was enacted: “[l]and so patented [that is purchased from the Government] shall never revert to the king of these islands, nor escheat to this government, for any other cause than attainder of high treason, as defined in the criminal code (emphasis added).” Among the prerogatives of the king that affect lands is “[t]o punish for high treason by forfeiture, if so the law decrees.” The King’s superior right to forfeiture was transferred to the government when the Hawaiian Kingdom became a constitutional monarchy. Under the treason statute, which has no degrees, the Penal Code states:

  1. Treason is hereby defined to be any plotting or attempt to dethrone or destroy the King, or the levying of war against the King’s government, or the adhering to the enemies thereof, giving them aid and comfort, the same being done by a person owing allegiance to this kingdom.
  2. Allegiance is the obedience and fidelity due to the kingdom from those under its protection.
  3. An alien, whether his native country be at war or at peace with this kingdom, owes allegiance to this kingdom during his residence therein, and during such residence, is capable of committing treason against this kingdom.
  4. Ambassadors and other ministers of foreign states, and their alien secretaries, servants and members of their families, do not owe allegiance to this kingdom, though resident therein, and are not capable of committing treason against this kingdom.
  5. To constitute the levying of war, contemplated in the first section of this chapter, it shall be requisite that the persons concerned therein be parties to some overt act, in or towards procuring, preparing or using force, or putting themselves in a condition in readiness to use force, either by being present at such overt act, or by promoting, aiding in, or being otherwise accessory before the fact to the same.
  6. In order to constitute the levying of war, the force must be employed or intended to be employed for the dethroning or destruction of the King or in contravention of the laws, or in opposition to the authority of the King’s government, with an intent or for an object affecting some of the branches or departments of said government general, or affecting the enactment, repeal or enforcement of laws in general, or of some general law; or affecting the people, or the public tranquility generally; in distinction from some special intent or object, affecting individuals other than the King, or a particular district.
  7. An accessory before the fact to treason is guilty of treason, and shall be subject to prosecution, trial and punishment therefor, though the principals more directly concerned have not been convicted, or are not amendable to justice.
  8. No person shall be convicted of treason but by the testimony of two or more lawful witnesses to the same overt act of treason whereof he stands charged, unless he shall in open court, confess such treason.
  9. Whoever shall commit the crime of treason, shall suffer the punishment of death; and all his property shall be confiscated to the government.
  10. If any person who shall have knowledge of the commission of treason against this kingdom, shall conceal the same, and shall not, as soon as may be, disclose and make known such treason to the Governor of the island on which he resides, he is guilty of a great crime, and shall be punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor not exceeding ten years, in the discretion of the court.

By specific reference to the term attainder, the Hawaiian legislature adopted the English common law on high treason. In The King v. Agnee et al., the Hawaiian Supreme Court stated, “[w]e do not recognize as conclusive the common law nor the authorities of the courts of England or of the United States, any farther than the principles which they support may have become incorporated in our system of laws, and recognized by the adjudication of the Supreme Court.” In Agnee, the Court cited English common law commentators on criminal law such as Chitty and Bishop as well as English criminal cases.

Under English common law, attainder of high treason is a metaphor that has the effect of the corruption of blood resulting from the commission of high treason along with reversion of property by escheat, both real and personal, to the king or government. Attainder is under “common law, that extinction of civil rights and capacities which took place whenever a person who had committed treason or felony received sentence of death for his crime. The effect of ‘attainder’ upon such felon was, in general terms, that all his estate, real and personal, was forfeited. At the common law, attainder resulted in three ways, viz: by confession, by verdict, and by process or outlawry (emphasis added).”

By “process,” attainder resulted by an act of Parliament called a bill of attainder, which Edward Coke critiqued as a process that lacked provable evidence but acknowledged that the Parliament did have the authority to attaint for high treason. When Henry VIII ascended to the throne in 1509, “attainder by parliament was an established means of dealing with special offenders, particularly those who posed a threat to the security of the king and his realm.” John Hatsell’s Precedents of Proceedings in the House of Commons that was published in 1781 explains:

Although it is true, that this measure of passing Bills of Attainder…has been used as an engine of power…it is not therefore just to conclude, that no instances can occur, in which it ought to be put in practice. Cases have arisen…and may again arise, where the public safety, which is the first object of all government, has called for this extraordinary interference; and, in such instances, where can the exercise of an extraordinary power be vested with more security, than in the three branches of the legislature [Monarch, House of Lords, House of Commons]? It should, however, always be remembered, that this deviation from the more ordinary forms of proceeding by indictment or impeachment, ought never to be adopted, but in cases of absolute necessity; and in those instances only, where, from the magnitude of the crime, or the imminent danger to the state, it would be a greater public mischief to suffer the offence to pass unpunished, than even to over-step the common boundaries of law; and…by an exemplary through extraordinary proceeding, to mark with infamy and disgrace, perhaps to punish with death, even the highest and most power offenders.

In Coke’s commentary on the 1352 Statute of Treasons in the Third Institute, he explains that the term “attaint” in the statute “necessarily implieth that he be proceeded with, and attainted according to the due course, and proceedings of law, and not by absolute power.” The suspect, according to Coke, had to be attainted with direct proof of evidence and not attainted with the probability of evidence. He explains, “This doth also strengthen the former exposition of the word (provablement,) that it must be provably, by an open act, which must be manifestly proved.”

According to William Blackstone, “ANOTHER immediate consequence of attainder is the corruption of blood, both upwards and downwards; so that an attainted person can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king’s superior right of forfeiture: and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a remoter ancestor.” 

Section 8 of the Hawaiian treason statute addresses the first two ways where attainder results by conviction by trial or confession without trial. The third way is by “process” or “outlawry.” The latter was a process during the medieval period in England for the county court or by writ declared a fugitive on the run for the commission of treason an “outlaw.” The former could be done by a bill of attainder or law of attainder enacted by the English Parliament and signed into law by the Monarch.  While the United States constitutionally prohibits bills of attainder, where “[n]o bill of attainder or ex post facto Law shall be passed,” and Great Britain abolished practically all the law of forfeiture and escheat for treason and felony in 1870, the Hawaiian Kingdom has no such prohibition, which would allow bills of attainder to be enacted by the Legislative Assembly, but no such bill has ever been enacted.

While bills of attainder were a product of domestic law of a State and not the courts, they could also result as a consequence of a “process” of international law by virtue of a treaty between the governments of two States where the negotiations and agreement included, inter alia, the subject of high treason as defined by a State’s domestic law. This was precisely the case of the Agreement of Restoration entered into between Queen Lili‘uokalani and President Grover Cleveland on 18 December 1893.

Of the three modes of attainting a person or persons of the high crime of treason under English common law, the insurgents were attainted by “process” as evidenced in President Cleveland’s six-month investigation from 1 April to 18 October 1893, and acknowledged by Queen Lili‘uokalani in the Agreement of Restoration of 18 December 1893. The condition of the Agreement of Restoration for the Queen, after being restored to the throne, “to grant full amnesty as to life and property to all those persons who have been or who are now in the Provisional Government, or who have been instrumental in the overthrow of your government,” presupposes that these persons were guilty of committing the high crime of treason, and, therefore, were attainted. According to Black’s Law Dictionary, amnesty is a “sovereign act of forgiveness for past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of…treason. … Included in the concept of pardon is ‘amnesty,’ which is similar in all respects to a full pardon, insofar as when it is granted both the crime and punishment are abrogated; however, unlike pardons, an amnesty usually refers to a class of individuals irrespective of individual situations (emphasis added).” The Queen, however, was not restored and, therefore, amnesty was not granted to those found guilty of treason by a “process.”

As a person who is attainted by a conviction of treason by a court of law whereby escheat occurs at the moment of the commission of the crime so that all intervening dealings with the property are avoided, escheat for a person attainted by a “process,” like a bill of attainder or the Agreement of Restoration, occurs at the moment of the commission of the crime as well. Section 9 of the treason statute states, “[w]hoever shall commit the crime of treason, shall suffer the punishment of death; and all his property shall be confiscated to the government.” The term “property” in the statute includes both real and personal.

According to Thomas Tomlins, in the Law-Dictionary explaining the Rise, Progress, and Present State of the British Law, vol. 1 (1835), as “to Corruption of Blood, this operates upwards and downwards, so that an attainted person can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king’s superior right of forfeiture; and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a remoter ancestor.” Therefore, all persons who were guilty of the crime of high treason, their real property escheated to the Hawaiian government, and their ownership to personal property vested in the Hawaiian government at the moment they committed the crime of treason since 17 January 1893 and suffers the pains and penalties from the effects of the doctrine of the corruption of blood thereafter.

One of the Big Five is Alexander & Baldwin, Ltd. The history of Alexander and Baldwin goes back to 1869 when Samuel T. Alexander and Henry P. Baldwin entered into a partnership called the Haiku Sugar Company on Maui. The Hawaiian Commercial & Sugar Company, formerly owned by Claus Spreckels, was later acquired by Alexander & Baldwin, as well as Kihei Plantation.

While Alexander left the islands in 1883 because of bad health and settled in Oakland, California, he continued his business relation with Baldwin in the Hawaiian Kingdom. In 1894, the partners formed a new firm in San Francisco under the name of Alexander & Baldwin, for the purpose of conducting a general commercial business and handling their plantation interests in the United States. A branch was established in Honolulu in 1897 where the main office was located. The firm was incorporated as Alexander & Baldwin, Ltd., in 1900 with Baldwin as its president.

At the time of the overthrow of the government of the Hawaiian Kingdom, Baldwin was living on the island of Kaua‘i and was an active member of the Annexation Club. In a letter to U.S. Special Commissioner James Blount dated April 25, 1893, Baldwin stated, “I have acquired considerable property and represent plantations that have this year an output of about 23,000 tons of sugar.”

On May 30, 1894, Baldwin participated in the Republic of Hawai‘i’s constitutional convention. Because Baldwin was found guilty of treason by “process,” he was attainted on May 30, 1894 when he committed the high crime and all his property, both real and personal escheated and reverted to the government of the Hawaiian Kingdom. Despite the government of the Hawaiian Kingdom was not restored until 1997 by a Council of Regency, the office of the government of the Hawaiian Kingdom was vested with Baldwin’s property as a consequence of a breach of Hawaiian law. And under the doctrine of corruption of blood, the family of Baldwin was prevented from any lawful inheritance through or from Baldwin because he was stained with treason.

For a list of all persons found guilty of the high crime of treason download the Royal Commission’s Criminal Report no. 22-0001.

The American Pot calling the Russian Kettle Black

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Speaking to Pacific island leaders, Reuters reported President Joe Biden said “Russia’s assault on Ukraine in pursuit of imperial ambitions is a flagrant, flagrant violation of the UN Charter, and the basic principles of sovereignty and territorial integrity.” The world should know that this is a classic case of the pot calling the kettle black, which is an idiom that means a person should not criticize another person for a fault they themselves have.

Like Ukraine, the Hawaiian Kingdom was an internationally recognized independent State. Where Ukraine got its independence in 1991 after the collapse of the Soviet Union, the Hawaiian Kingdom achieved its independence when Great Britain and France jointly proclaimed that both countries recognized the Hawaiian Islands as an independent State in 1843. The United States explicitly acknowledged Hawaiian independence on July 6, 1844.

One of the fundamental principles of international law is the sovereignty, which is supreme authority, and territorial integrity of an independent State. Independent States have exclusive authority over its territory that is subject to its own laws and not the laws of any other State.

In 1997, a treaty of friendship, cooperation, and partnership between Ukraine and the Russian Federation was signed that came into force on April 1, 2000. Article 2 of the treaty states that “the High Contracting Parties shall respect each other’s territorial integrity and reaffirm the inviolability of the borders existing between them.”

In 1849, a treaty of friendship, commerce and navigation between the Hawaiian Kingdom and the United States was signed that came into force on November 9, 1850. Territorial integrity is acknowledged in article 8 of the treaty that states “each of the two contracting parties engages that the citizens or subjects of the other residing in their respective states, shall enjoy their property and personal security, or the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries respectively.”

Both Ukraine and the Hawaiian Kingdom established diplomatic relations with their treaty partners. While Ukraine maintained an embassy in Moscow, and Russia maintained an embassy in Kiev, the Hawaiian Kingdom maintained an embassy in Washington, D.C., and the United States maintained an embassy in Honolulu.

Like Russia invaded Ukraine on February 24, 2022, the United States invaded the Hawaiian Kingdom on January 16, 1893. In a presidential investigation, U.S. President Grover Cleveland acknowledged that the U.S. “military demonstration upon the soil of Honolulu was itself an act of war,” which led to the overthrow of the Hawaiian government the following day. The purpose of the invasion and overthrow was to secure Pearl Harbor as a naval base of operations to protect the west coast of the United States from invasion by Japan. The Russian invasion of Ukraine was to buffer an invasion by the North Atlantic Treaty Organization or NATO, which the United States is a member of.

On January 31, 1893, U.S. Captain Alfred Mahan from the Naval War College wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. In his letter, Captain Mahan recognized the Hawaiian Islands, “with their geographical and military importance [to be] unrivaled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He wrote, “To hold [the Hawaiian Islands], whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?”

Although President Cleveland apologized for the overthrow of the Hawaiian Kingdom government and entered into a treaty with Queen Lili‘uokalani on December 18, 1893, to restore her to the Hawaiian throne as a constitutional executive monarch, he was prevented from doing so because of the war hawks in the Congress that wanted Pearl Harbor. This consequently placed the Hawaiian Islands in civil unrest under the control of insurgents that received support from Americans in the United States. They were pretending to be a government by calling themselves the provisional government. The reason for the pretending is because President Cleveland’s investigation already concluded “that the provisional government owes its existence to an armed invasion by the United States.” In other words, the insurgents were a puppet of the U.S.

Five years would lapse, and the Cleveland administration was replaced by President William McKinley. U.S. Secretary of the Navy John Young was an advocate for annexing the Hawaiian Islands. Secretary Long was influenced by Assistant Secretary of the Navy Theodore Roosevelt, who would later become President in 1901. On May 3, 1897, Roosevelt wrote a letter to Captain Mahan. He stated, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.” Roosevelt also stated that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan, that “Secretary Long shares our views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”

The opportunity for the United States to seize the Hawaiian Islands occurred at the height of the Spanish-American War. On July 6, 1898, the war hawks in the Congress passed a joint resolution declaring that the Hawaiian Islands had been annexed and President McKinley signed it into law the following day.

The opportunity for Russia to seize a portion of Ukrainian territory came after sham referendums where the people of the regions of Donetsk, Luhansk, Kherson and Zaporizhzhia voted to be Russian and not remain Ukrainian. On September 30, 2022, Reuters reported that “Russian President Vladimir Putin announced Russia had ‘four new regions’ in a speech in the Kremliin on Friday in which he outlined Russia’s annexation of four Ukrainian regions that Moscow’s forces have partially seized during a seven-month conflict with Ukraine.”

Despite the American annexation of the Hawaiian Islands and the Russian annexation of the four Ukrainian regions, they remain illegal under international law. Because it is illegal it did not alter the territorial integrity of both the Hawaiian Kingdom and Ukraine as independent States. As Professor Malcolm Shaws wrote, “It is, however, clear today that the acquisition of territory by force alone is illegal under international law.” And according to The Handbook of Humanitarian Law in Armed Conflicts (1995):

The international law of belligerent occupation must therefore be understood as meaning that the occupying power is not sovereign, but exercises provisional and temporary control over foreign territory. The legal situation of the territory can be altered only through a peace treaty. International law does not permit annexation of territory of another State.

The return of unlawfully annexed territory occurs when there are changes in the physical power of the usurping State. Since the usurping State has no lawful authority over annexed territory, its possession is based purely on power and not law. Similarly, the abductor of a kidnapped child, being an act prohibited by law, does not become the parent of the child by force despite the length of the kidnapping. And when the child is eventually rescued and the power of the abductor eliminated and taken into custody, the child can then return to the family.

Unlike Ukraine, there was no Reuters news agency in the 1890s informing the world of the illegal activities of the United States against the Hawaiian Kingdom and the illegal annexation of the Hawaiian Islands for military purposes during the Spanish-American War. While there is a difference in time, the Russian actions bear a striking resemblance to the United States actions in seizing the entire territory of the Hawaiian Kingdom. While both the American and Russian actions are unlawful, the Hawaiian Kingdom, like Ukraine, remain independent States under international law together with their territorial integrity intact despite the unlawful annexations.

In the case of the Hawaiian Kingdom, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, acknowledged the continued existence of the Hawaiian Kingdom as a “State” under international law in 1999, which includes its territorial integrity. In the case of Ukraine, everyone in the world already knows that Ukraine is a “State” under international law.

This is a classic case of the American pot calling the Russian kettle black.

For more information on the belligerent occupation of the Hawaiian Kingdom by the United States and the unilateral annexation of Hawaiian territory, read Dr. Keanu Sai’s law article Backstory – Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration (1999-2001).

UPDATE – Hawaiian Kingdom v. Biden: The United States’ Unlawful Actions in Hawai‘i since 1893 have “Come Home to Roost”

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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.

Dr. Keanu Sai to Start Off United Church of Christ Workshops on Hawaiian Kingdom History on August 7, 2022

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A free online learning opportunity for ALL hosted by the HCUCC Justice and Witness Missional Team in collaboration with the Association of Hawaiian Evangelical Churches

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).

  1. 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?
  2. AUGUST 14 Hōʻike ʻElua (Presentation 2) The constitutional history of the Hawaiian Kingdom from King Kamehameha III to Queen Lili‘uokalani (1839-1893)
  3. 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
  4. 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.

  1. SEPTEMBER 04 Hōʻike ʻEkahi (Presentation 1) The Early Mission, 1820 -1863
  2. SEPTEMBER 11 Hōʻike ʻElua (Presentation 2) Hōʻeuʻeu Hou: Sons of the Mission and the Shaping of a New “Mission,” 1863-1888
  3. SEPTEMBER 18 Hōʻike ʻEkolu (Presentation 3) Poʻe Karitiano ʻOiaʻiʻo (True Christians)
  4. 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

  1. OCTOBER 2 Hōʻike ʻEkahi (Presentation 1)
  2. OCTOBER 9 Hōʻike ʻElua (Presentation 2)
  3. OCTOBER 16 Hōʻike ʻEkolu (Presentation 3)
  4. OCTOBER 23 Hōʻike ʻEhā (Presentation 4)

Calculating Reparations for 129 years of the United States’ Violations of International Humanitarian Law since 1893

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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.

Reparation Payments:

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).

CountryAmount in US$Date of Treaty
Burma$200 millionNov. 5, 1955
Philippines$550 millionMay 9, 1956
Indonesia$223 millionJan. 20, 1958
Vietnam$39 millionMay 13, 1959
Average$250 millionMean year—1957
Inflation calculator$2.6 billionYear—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:

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 Far Reach of the Lorenzo Doctrine—The Title Insurance Industry

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The Lorenzo doctrine was adopted by the federal courts in the Ninth Circuit for jurisdictional purposes but it has been used in the land title insurance industry for denying insurance claims.

In 1994, the State of Hawai‘i Intermediate Court of Appeals (“ICA”) heard an appeal where the defendant-appellant, Anthony Lorenzo, was seeking an appeal that the trial court committed an error when his motion to dismiss his indictment was denied, which led to his conviction. Lorenzo argued that the Hawaiian Kingdom continues to exist because the overthrow of the Hawaiian government on January 17, 1893, was illegal. And since he was a citizen of the kingdom, the trial court did not have any jurisdiction over him. The case was State of Hawai‘i v. Lorenzo.

For the first time ever regarding the United States overthrow, the ICA distinguished the government from a sovereign State—the Hawaiian Kingdom, or at least tried to. In the past, these two terms were interchangeable. In its decision, the ICA cited a 1991 appeals case that was heard by the United States Court of Appeals for the Second Circuit, Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47 (2d Cir. 1991) that quoted another case in the Second Circuit, National Petro-chemical Co. v. M/T Stolt Sheaf, 860 F.2d 551, 553 (2d Cir. 1988), as well as quoting from §201 from the Restatement (Third) of the Foreign Relations Law of the United States (1987). The Second Circuit Court stated:

The [Palestine Liberation Organization] PLO first argues that it is a sovereign state and therefore immune from suit under the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. § 1602 et seq. (1988). As support for this argument, it relies on its “political and governmental character and structure, its commitment to and practice of its own statehood, and its unlisted and indeterminable membership.” Brief for Appellant at 7. However, this Court has limited the definition of “state” to “‘entit[ies] that ha[ve] a defined territory and a permanent population, [that are] under the control of [their] own government, and that engage[] in, or ha[ve] the capacity to engage in, formal relations with other such entities.’” [citations omitted]. It is quite clear that the PLO meets none of those requirements.

The definition of a State includes a government and not that the government is synonymous with a State. Palestine has yet to be recognized by the United States as a sovereign and independent State, which prevented the PLO from claiming that Palestine is a State in U.S. federal courts. Therefore, whenever the issue of Palestine arises in federal court proceedings, the court itself or one of the parties to the lawsuit would invoke the “political question doctrine” and the case would be dismissed. Only until the United States recognizes Palestine as a State will the federal courts acknowledge Palestinian Statehood.

The Hawaiian Kingdom is different from the Palestinian situation in that the United States already recognized the Hawaiian Kingdom as a State in its treaties. In other words, the Hawaiian Kingdom did “ha[ve] a defined territory and a permanent population, [that are] under the control of [their] own government, and that engage[] in, or ha[ve] the capacity to engage in, formal relations with other such entities.” In fact, the Hawaiian Kingdom had an embassy in Washington, D.C., and the United States had an embassy in Honolulu.

The question that came before the ICA in the Lorenzo appeal is whether the State continues to exist despite the overthrow of its government by the United States on January 17, 1893. The ICA stated, “The essence of the lower court’s decision is that even if, as Lorenzo contends, the 1893 overthrow of the Kingdom was illegal, that would not affect the court’s jurisdiction in this case. 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 lack of jurisdiction.” Here, the ICA would appear to have conflated the Hawaiian State with the government of the Hawaiian Kingdom when it stated, “the 1893 overthrow of the Kingdom was illegal.”

This distinction between the State and the government was explained in the Restatement (Third) of the Foreign Relations Law of the United States that the ICA cited. In §202 is states:

Recognition of state and government distinguished. Recognition of a state is a formal acknowledgment that the entity possesses the qualifications of statehood, and implies a commitment to treat the entity as a state. Recognition of a government is formal acknowledgment that a particular regime is the effective government of a state and implies a commitment to treaty that regime as the government of that state. Ordinarily, that occurs when a state is incorporated into another state, as when Montenegro in 1919 became a part of the Kingdom of Serbs, Croats, and Slovenes (later Yugoslavia).

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 an any future time.” §202 goes on to say that 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.”

So because the Hawaiian State cannot be “derecognized,” it would continue to exist despite the overthrow of the government of the Hawaiian Kingdom on January 17, 1893. Evidence of “when a state is incorporated into another state” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico that ended the Mexican-American war, and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain that ended the Spanish-American War.

The 1898 Joint Resolution To provide for annexing the Hawaiian Islands to the United States, is a municipal law of the United States without extraterritorial effect. It is not an international treaty. Under international law, to annex territory of another State is a unilateral act, as opposed to cession, which is a bilateral act between States.

In 2002, the federal court in Honolulu, in United States v. Goo, referred to the State of Hawai‘i v. Lorenzo and the Lorenzo doctrine. 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 in Lorenzo acknowledged may affect the rationale of the ICA in 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.”

When the ICA acknowledged that Lorenzo did state in his motion to dismiss the indictment that the Ha­waiian Kingdom “was recognized as an independent sovereign nation by the United States in numerous bilateral treaties,” it set the presumption to be the Hawaiian Kingdom’s existence as a State under international law and not the existence of the State of Hawai‘i as a political subdivision of the United States.

Under international law, it was not the burden of the defendant to provide evidence that the Hawaiian Kingdom “exists as a State” when the Lorenzo Court already acknowledged its existence and recognition by the United States. Rather, it was the burden of the prosecution to provide evidence that the Hawaiian Kingdom “does not exist as a State.” As a result, the Lorenzo Court’s ruling was wrong and all decisions that followed in State of Hawai‘i courts and federal courts applying the Lorenzo doctrine also were wrong.

The Lorenzo doctrine also has been used by the title insurance industry. 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 force 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.

All titles to property that were conveyed after January 17, 1893, are defective because the deeds were “not lawfully executed according Hawaiian Kingdom law [because] the notaries public and the Bureau fo Conveyances weren’t part of the Hawaii[an] Kingdom, [and] that the documents in [the claimant’s] chain of title were not lawfully executed.”

Defective titles to land in Hawai‘i also renders all mortgages tied to the land to be void and that title insurance also pays off the balance of the loan to the bank under the Lender’s Policy. For more information on this topic, download the Royal Commission of Inquiry’s Preliminary Report on Land Titles Throughout the Realm and its Supplemental Report on Title Insurance.

The Federal Court in Honolulu Comes Face to Face with its own Lorenzo Doctrine

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The Hawaiian Kingdom v. Biden federal lawsuit is still playing out at the United States District Court for the District of Hawai‘i, despite the case also being heard by the Ninth Circuit Court of Appeals in San Francisco.

What is before the Ninth Circuit are not the two preliminary judgments made by Judge Leslie Kobayashi, but rather the lawful authority for Judge Kobayashi to make the judgments in the first place. The proceedings before the federal court in Honolulu was to get Judge Kobayashi to transform into an Article II Occupation Court so it would have lawful authority.

Right now, the federal court in Honolulu is operating as an Article III Court which is a part of the judiciary branch of government under article III of the United States Constitution. An Article II Occupation Court is a part of the executive branch of government under article II of the U.S. Constitution headed by the President as commander-in-chief of the armed forces.

Article II Occupation Courts are federal courts established in territory that is being occupied by the United States. Because Article III Courts operate within the territorial boundaries of the United States, they administer United States law. Article II Occupation Courts, on the other hand, administer the laws of the occupied State and the international law of occupation. Article II Occupation Courts were established in Germany after the defeat of the Nazi regime. These courts administered German law and the law of occupation.

Whenever defendants in Hawai‘i challenged the authority of the United States and the State of Hawai‘i in court, judges in State of Hawai‘i courts and in the federal court in Honolulu always referred to a 1994 State of Hawai‘i appeals case called State of Hawai‘i v. Lorenzo to quash the challenge. In that case, the Intermediate Court of Appeals (“Lorenzo Court”) stated:

Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion (Motion) to dismiss the indictment. The essence of the Motion is that the [Ha­waiian Kingdom] (Kingdom) was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the reasons set forth below, we conclude that the lower court correctly denied the Motion.

According to the Lorenzo Court it based its denial of the motion to dismiss because 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.”

The Lorenzo Court’s standard of review in determining whether the Hawaiian Kingdom exists as a State placed the burden of proof on Lorenzo as the defendant. 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 [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.

Lorenzo became a precedent case on the subject of the Hawaiian Kingdom’s existence as a State in State of Hawai‘i courts, and is known in the United States District Court in Hawai‘i, since 2002, as the Lorenzo principle or doctrine. There have been seventeen federal cases that applied the Lorenzo doctrine, two of which came before the Ninth Circuit Court of Appeals in San Francisco.

The Lorenzo Court, however, did acknowledge that its “rationale is open to question in light of international law.” Whether or not the Hawaiian Kingdom “exists as a state in accordance with recognized attributes of a state’s sovereign nature,” international law is supposed to be applied. By placing the burden of proof on the defendant, the Lorenzo Court did not apply international law. 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,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” “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.”

Evidence of “a valid demonstration of legal title, or sovereignty, on the part of the United States” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico that ended the Mexican-American war, and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain that ended the Spanish-American War.

The 1898 Joint Resolution To provide for annexing the Hawaiian Islands to the United States, is a municipal law of the United States without extraterritorial effect. It is not an international treaty. Under international law, to annex territory of another State is a unilateral act, as opposed to cession, which is a bilateral act between States. Under international law, annexation of an occupied State is unlawful. According to The Handbook of Humanitarian Law in Armed Conflicts:

The international law of belligerent occupation must therefore be understood as meaning that the occupying power is not sovereign, but exercises provisional and temporary control over foreign territory. The legal situation of the territory can be altered only through a peace treaty or debellatio. International law does not permit annexation of territory of another state.

When the Lorenzo Court acknowledged that Lorenzo did state in his motion to dismiss the indictment that the Ha­waiian Kingdom “was recognized as an independent sovereign nation by the United States in numerous bilateral treaties,” it set the presumption to be the Hawaiian Kingdom’s existence as a State under international law and not the existence of the State of Hawai‘i as a political subdivision of the United States. This would have resulted in placing the burden “on the party opposing that continuity to establish the facts substantiating its rebuttal.”

Under international law, it was not the burden of Lorenzo to provide evidence that the Hawaiian Kingdom “exists” when the Lorenzo Court already acknowledged its existence and recognition by the United States. Rather, it was the burden of the prosecution to provide evidence that the Hawaiian Kingdom “does not exist.” As a result, the Lorenzo Court’s ruling was wrong and all decisions that followed in State of Hawai‘i courts and Federal courts applying the Lorenzo doctrine also were wrong.

In Hawaiian Kingdom v. Biden, the United States filed a Motion to Dismiss the Hawaiian Kingdom’s Amended Complaint claiming that Hawai‘i was annexed by a joint resolution of Congress in 1898 and that Hawai‘i is the 50th State of the Union since 1959. Despite the frivolous claim by the United States that Hawai‘i was annexed by an American law, the Hawaiian Kingdom opposed the motion to dismiss because the Court has no authority to make any ruling until it transforms itself into an Article II Occupation Court. Article III Courts can only operate within the territory of the United States and not outside of it unless it is an Article II Occupation Court.

On June 9, 2022, Judge Kobayashi filed her Order granting the Federal Defendants’ motion to dismiss the Hawaiian Kingdom’s amended complaint claiming she doesn’t have to transform into an Article II Occupation Court because of the Lorenzo doctrine! Today the Hawaiian Kingdom filed its Motion to Amend or Alter the Order because Judge Kobayashi used the Lorenzo doctrine in error. In its Motion, the Hawaiian Kingdom concluded with:

Without citing any rebuttable evidence to the presumption of continuity of the Hawaiian State, the Court relied on Fonoti. This case, however, is not judge-made law or federal common law like Banco Nacional de Cuba v. Sabbatino regarding international relations. The Fonoti case was a decision that did not comply with the Lorenzo doctrine and, therefore, cannot be used by this Court as if it is federal common law. While the Court cited the Fonoti case in its granting of the Defendants’ cross-motion to dismiss, which was based on the Lorenzo doctrine, albeit in error, the Court willfully disregarded international law and the Lorenzo doctrine to the detriment of the Plaintiff Hawaiian Kingdom, being a manifest error of law and fact and a manifest injustice. The Court has willfully avoided the Lorenzo doctrine that calls for evidence that the Hawaiian Kingdom does not exist “as a state in accordance with recognized attributes of a state’s sovereign nature.” The Lorenzo doctrine does not seek to determine whether the government of the Hawaiian State exists. Notwithstanding the restoration of the government of the Hawaiian State three years after State of Hawai‘i v. Lorenzo in 1994 as a Council of Regency and Plaintiff in this case, the Lorenzo doctrine’s evidentiary burden was not altered except by the application of international law.

The Court has provided no legal basis to grant Defendants’ cross-motion to dismiss first amended complaint. Therefore, this Court is bound by treaty law to take affirmative steps to transform itself into an Article II Court by virtue of Article 43 of the 1907 Hague Regulations, just as the International Bureau of the PCA established the arbitral tribunal by virtue of Article 47 of the 1907 Hague Convention on the Pacific Settlement of International Disputes because of the juridical fact of the Hawaiian Kingdom’s existence as a State. This Court is also bound to transform itself into an Article II Court because it is situated within the territory of the Hawaiian Kingdom and not within the territory of the United States pursuant to the Lorenzo doctrine. Furthermore, Federal Defendants have provided no rebuttable evidence that the Hawaiian Kingdom as a State was extinguished under international law other than invoking its internal laws as justification for not complying with its international obligations, which are barred by customary international law and treaty law.

For 28 years the State of Hawai‘i courts and the U.S. federal court in Hawai‘i have been applying the Lorenzo doctrine, which they created, wrong. This is not a matter of reading the fine print in the Lorenzo Court’s decision. It was in plain view when the Lorenzo Court stated that “the court’s rationale is open to question in light of international law.”

As a federal judge, Judge Kobayashi is obligated to apply international law to the Lorenzo doctrine, because the U.S. Supreme Court, in the The Paquette Habana case, stated, “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”

Hawaiian Kingdom Petitions Ninth Circuit Court to Compel Judge Kobayashi to Transform into an Article II Occupation Court

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On May 25, 2022, on behalf of the United States, President Joseph Biden, Vice-President Kamala Harris, Commissioner of the Internal Revenue Service, Commander of the Indo-Pacific Command Admiral Aquilino, Senate Majority Leader Charles Schumer and Speaker of the House Nancy Pelosi, the Department of Justice in Washington, D.C., filed a Response to the Hawaiian Kingdom’s Motion to Dismiss for Forum Non Conveniens.

A motion to dismiss for forum non conveniens is filed with an appellate court if the proper court of appeals is in a foreign country. In its motion the Hawaiian Kingdom is asking the Ninth Circuit Court to dismiss the appeal because the Clerk of the District Court of Hawai‘i transmitted the appeal to the Ninth Circuit in error.

When the Hawaiian Kingdom filed its Notice of Appeal with the Clerk of the United States District Court for the District of Hawai‘i on April 24, 2022, it specifically stated that the Hawaiian Kingdom was appealing to a competent Court of Appeals to be hereafter established by the United States as an Occupying Power within the territory of the Hawaiian Kingdom. It was the Clerk that transferred the Notice of Appeal to the Ninth Circuit Court of Appeals in San Francisco, and not the Hawaiian Kingdom.

The international laws of occupation allows the Occupying Power, in this case the United States, to establish an Article II Occupation Court in the Hawaiian Kingdom’s territory as the occupying State to administer the laws of the occupied State and the international laws of occupation. The United States established an Article II Occupation Court in Germany in 1945 until 1955 when the occupation of Germany ended.

After receiving the appeal, the Clerk of the Ninth Circuit issued an Order for the Hawaiian Kingdom to file within 21 days a motion “for voluntary dismissal of the appeal or show cause why it should not be dismissed for lack of jurisdiction.” Federal appeals can only be made after the case is over at the trial court level. District Court Judge Leslie Kobayashi did not terminate the proceedings in Hawaiian Kingdom v. Biden.

The Hawaiian Kingdom filed its Motion to Dismiss for Forum Non Conveniens, but in doing so asked the Ninth Circuit Court to comply with the Lorenzo principle, which is federal common law, and compel the United States to show evidence that the Hawaiian Kingdom does not exist as a matter of international law. The Hawaiian Kingdom is “show[ing] cause why it should not be dismissed for lack of jurisdiction.” The Lorenzo principle has a direct nexus to a 1994 appeal that came before the State of Hawai‘i Intermediate Court of Appeals called State of Hawai‘i v. Lorenzo. The Appellate Court stated:

Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion (Motion) to dismiss the indictment. The essence of the Motion is that the [Ha­waiian Kingdom] (Kingdom) was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the reasons set forth below, we conclude that the lower court correctly denied the Motion.

Lorenzo became a precedent case on the subject of the Hawaiian Kingdom’s existence as a State in State of Hawai‘i courts, and is known in the United States District Court in Hawai‘i, since 2002, as the Lorenzo principle. The Lorenzo principle placed the burden of proof that the Hawaiian Kingdom continues to exist as a State on the defendants. In 2014, the Hawai‘i Supreme Court clarified this evidentiary burden. In State of Hawai‘i v. Armitage, the Supreme Court stated:

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 foreign 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.

There have been seventeen federal cases that applied the Lorenzo principle, two of which came before the Ninth Circuit Court. However, a careful read of the Lorenzo decision reveals a stunning shift of who has the burden of proof and what needs to be proven. The Appellate Court in Lorenzo stated that “the court’s rationale is open to question in light of international law.” Since the determination of whether a State exists is a matter of international law, what does international law say about the existence of a State?

A rule of international law is that an established State is presumed to still exist despite its government being military overthrown. This is why the German State continued to exist after the Nazi government was militarily overthrown in 1945, and why the Japanese State continued to exist despite the military overthrow of the Japanese government, both of which ended the Second World War. In other words, the Hawaiian Kingdom, as an established State under international law, like Germany and Japan, is presumed to continue to exist despite the illegal overthrow of its government on January 17, 1893.

Because the Hawaiian Kingdom continues to exist, the burden was not on Lorenzo as the defendant to prove the Hawaiian Kingdom “exists,” but rather the burden is placed on the prosecutor to prove that the Hawaiian Kingdom “does not exist.” The State of Hawai‘i courts that applied the Lorenzo principle in multiple cases applied it wrong.

Also, the seventeen federal cases that applied the Lorenzo principle also had it wrong, and like the State of Hawai‘i courts are rendered unlawful because of international law, so is the United States District Court for the District of Hawai‘i. This means that all court decisions after 1893, whether the provisional government, the Republic of Hawai‘i, the Territory of Hawai‘i, the State of Hawai‘i, and since 1900, the federal courts, are void because the courts were never lawful to begin with.

Further implications of international law renders the State of Hawai‘i itself as unlawful. On this note, the Appellate Court in Lorenzo also stated that the “illegal overthrow leaves open the question whether the present governance system should be recognized” because a “State has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force.”

The State of Hawai‘i is a direct successor to the provisional government that was established through the “use of armed force.” In 1893, President Grover Cleveland concluded that the provisional government, which is a predecessor of the State of Hawai‘i, “owes its existence to an armed invasion by the United States.” Secretary of State Walter Gresham stated that “the Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign.” In other words, the trial court that prosecuted Lorenzo and the Appellate Court that heard Lorenzo’s appeal were never lawful in the first place.

The Hawaiian Kingdom’s appeal that was forwarded to the Ninth Circuit by the Clerk of the District Court in Hawai‘i raised a very interesting twist regarding the Lorenzo principle and the legal standing of the Ninth Circuit. By making the Lorenzo principle into federal common law, which means judge made law at the federal level, the Ninth Circuit is bound by the Lorenzo principle, especially when the Ninth Circuit applied the Lorenzo principle in two cases that it heard on appeal.

Unlike the Hawai‘i District Court, which is currently unlawful until it transforms itself into an Article II Occupation Court, the Ninth Circuit is lawful, as an Article III Court, because it sits in the territory of the United States. As such, the Hawaiian Kingdom can invoke the Lorenzo principle that the Hawaiian Kingdom is presumed to continue to exist unless the United States, who is a defendant-appellee in this case, can provide evidence that the Hawaiian Kingdom does not exist. Without providing a treaty of peace whereby the Hawaiian Kingdom ceded itself to the United States, the presumption of continuity remains. There is no treaty except for the unlawful imposition of American municipal laws since 1898.

Yesterday, June 2, 2022, the Hawaiian Kingdom filed its Reply to the United States response to its motion to dismiss that reiterated the Lorenzo principle and why the federal court in Hawai‘i is unlawful. And that since the Ninth Circuit is not unlawful because it sits within the territory of the United States in the city of San Francisco, it should apply the Lorenzo principle in this unique case that has now come before it.

In its Reply, the Hawaiian Kingdom has petitioned the Ninth Circuit for a writ of mandamus to compel Judge Leslie Kobayashi to transform the United States District Court in Hawai‘i into an Article II Occupation Court pursuant to the Lorenzo principle and international law. Under the All Writs Act, federal circuit courts of appeal are authorized to compel an inferior court within its circuit to do something that the law says must be done. In this case, international law requires that only Article II Occupation Courts that administer the laws of the occupied State and the law of occupation can be established in the territory of the Hawaiian Kingdom.

With the filings of the Hawaiian Kingdom’s Motion to Dismiss for Forum Non Conveniens, the United States’ Response, and the Hawaiian Kingdom’s Reply, the issue is now in the hands of the Ninth Circuit for a decision.

State of Hawai‘i v. Lorenzo – The Case That Brought Down the State of Hawai‘i

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One year after the United States Congress passed the joint resolution apologizing for the Unit­ed States overthrow of the Hawaiian Kingdom government in 1993, an appeal was heard by the State of Hawai‘i Intermediate Court of Appeals that centered on a claim that the Hawaiian Kingdom continues to exist. In State of Hawai‘i v. Lorenzo, the appellate court stated:

Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion (Motion) to dismiss the indictment. The essence of the Motion is that the [Ha­waiian Kingdom] (Kingdom) was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the reasons set forth below, we conclude that the lower court correctly denied the Motion.

While the appellate court affirmed the trial court’s judgment, it admitted “the court’s rationale is open to question in light of international law.” By not applying international law, the court concluded that the trial court’s decision was correct because Lorenzo “presented no factual (or legal) basis for concluding that the Kingdom [continues to exist] as a state in accordance with recognized attributes of a state’s sovereign nature.”

In other words, the appellate court was applying the rules of evidence that applied in State of Hawai‘i courts. According to the rules of evidence, there is a presumption that the court is lawful and has jurisdiction of the case, unless the defendant provides rebuttable evidence that it doesn’t have jurisdiction. An example would be where a prosecutor files a criminal complaint against a person for committing manslaughter in traffic court. The defendant’s attorney would then file a motion to dismiss stating that the traffic court does not have jurisdiction over an allegation of manslaughter, and that the proper court would be the circuit court that has jurisdiction.

Lorenzo’s attorney filed a motion to dismiss based on the argument that his client had immunity from prosecution. So the appellate court stated that Lorenzo provided no evidence that the Hawaiian Kingdom exists as a State that would have provided for his immunity because he should have been on trial in a Hawaiian Kingdom court and not a State of Hawai‘i court. Since 1994, the Lorenzo case became a precedent case that served as the basis for denying defendants’ motions to dismiss where they claimed immunity. In State of Hawai‘i v. Fergerstrom, the appellate court stated, “We affirm that relevant precedent [in State of Hawai‘i v. Lorenzo],” and that defendants have an evidentiary burden that shows the Hawaiian Kingdom continues to exist. The federal court, in 2002, referred to the Lorenzo case as the Lorenzo principle.

The Supreme Court, in State of Hawai‘i v. Armitage, clarified the evidentiary burden that Lo­renzo principle placed upon defendants. The court stated:

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the Kingdom of Hawai‘i “exists as a state in accordance with recognized attributes of a state’s foreign 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.

What is profound is that if the appellate court applied international law in its decision, it would have confirmed the continued existence of the Hawaiian Kingdom as a State and ruled in favor of Lorenzo. International law recognizes the difference between the State and its government, and that there is a presumption that the State continues to exist despite its government being militarily overthrown. As Judge James Crawford explained, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective government.” He 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, all Lorenzo needed to provide was evidence that the Hawaiian Kingdom “did” exist as a State, which would then shift the burden on the prosecution to provide rebuttable evidence that the United States extinguished the Hawaiian State in accordance with recognized modes of extinction under international law, a treaty of cession.

The appellate court did acknowledge that Lorenzo, in fact, provided evidence in his motion to dismiss “that the [Hawaiian Kingdom] was recognized as an independent sovereign nation by the United States in numerous bilateral treaties” In other words, the “bilateral treaties” were the evidence of Hawaiian statehood. Therefore, the appellate court mistakenly placed the burden on the defendant to provide evidence of the Kingdom’s continued existence, when it should have determined from the trial records if the prosecution provided rebuttable evidence against the presumption of the Kingdom’s continued existence as a State, which was evidenced by the “bilateral treaties.” The prosecution provided no such evidence.

If, for the sake of argument, the prosecution argued before the trial court that the 1898 joint resolution of annexation extinguished Hawaiian statehood, it would be prevented from doing so under the rules of evidence because the United States Department of Justice’s Office of Legal Counsel concluded in 1988, in a legal opinion, that it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.”

The opinion by the Department of Justice is an admission against interest, which is an out-of-court statement made by the federal government prior to the date of Lorenzo’s trial that would have bound the prosecutor from claiming otherwise. Furthermore, a congressional joint resolution or a statute are not sources of international law, and as such could not have affected Hawaiian statehood. According to the American Law Institute, a “rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world.” Only by a treaty of cession, which is an “international agreement,” could the United States have extinguished the Hawaiian Kingdom as a State. Congressional laws are not treaties of cession.

The significance of the Lorenzo case is that the appellate court, when international law is applied, answered its own question in the negative as to “whether the present governance system should be recognized,” and that a “state has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force.” In other words, the State of Hawai‘i cannot be recognized as a State of the United States, which arose “as a result of a…use of armed force.” In 1893, President Grover Cleveland concluded that the provisional government, which is a predecessor of the State of Hawai‘i, “owes its existence to an armed invasion by the United States.” Therefore, a proper interpretation of State of Hawai‘i v. Lorenzo renders all courts of the State of Hawai‘i to be unlawful, and that every judgment, order or decree that emanated from any court of the State of Hawai‘i is void pursuant to the Lorenzo principle.

As such, these decisions are subject to collateral attack, which is where a defendant has a right to impeach a decision previously made against him because the “court that rendered judgment lacked jurisdiction of the subject matter.” While these decisions are subject to collateral attack, there is the problem as to what court is competent to receive a motion to set aside judgment because all courts of the State of Hawai‘i are not lawful pursuant to the Lorenzo principle.

“If a person or body assumes to act as a court without any semblance of legal authority so to act and gives a purported judgment,” explains the American Law Institute, “the judgment is, of course, wholly void.” And according to Moore, “Courts that act beyond…constraints act without power; judgments of courts lacking subject matter jurisdiction are void—not de­serving of respect by other judicial bodies or by the litigants.” Furthermore, courts who were made aware of the American occupation prior to their decisions would have met the constitu­ent elements of the war crime of depriving a protected person of a fair and regular trial.

Hawaiian Kingdom v. Biden: Federal Judge Acknowledges the Hawaiian Kingdom Continues to Exist under International Law

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It the latest filing of a Minute Order on April 19, 2022, in the federal lawsuit, Hawaiian Kingdom v. Biden, U.S. District Court Judge Leslie Kobayashi denied the Hawaiian Kingdom’s Motion for Reconsideration, but simultaneously acknowledged the continued existence of the Hawaiian Kingdom as a State under international law.

Judge Leslie E. Kobayashi

In its Motion for Reconsideration, the Hawaiian Kingdom was addressing Judge Kobayashi’s terse statement in two previous Orders that “there 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.” This statement runs counter to international law where an international rule exists regarding the continued existence of the Hawaiian Kingdom as a State despite the United States admitted illegal overthrow of its government on January 17, 1893. She provided no evidence to back up her one line statement.

Under international law, according to Judge James Crawford, there “is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective, government,” and that belligerent “occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.”

According to Black’s Law Dictionary, a “presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” In other words, presumption is a rule of international law where a recognized independent State is a basic fact that gives rise to the existence of a presumed fact, which is its continued existence until this presumed fact is rebutted with evidence. Evidence that would show the Hawaiian Kingdom “does not” continue to exist under international law is where the Hawaiian Kingdom transferred its sovereignty and territory to the United States by a treaty.

The presumption of innocence works the same as the presumption of continuity because the burden to disprove the presumption lies with the opposing party. In a criminal trial, the defendant does not have the burden to “prove” his or her innocence, but rather it is the burden of the prosecutor to “disprove” the innocence with rebuttable evidence. Likewise, the Hawaiian Kingdom does not have the burden to “prove” its continued existence, but rather it is the burden of the United States to “disprove” the Hawaiian Kingdom’s continued existence with rebuttable evidence under international law.

Like the presumption of innocence, the presumption of continuity has a much more significant role in legal or court proceedings because it is evidence based as opposed to political venues that rely on power and rhetoric. In a court proceeding, the presumption rule is the cornerstone of the rule of law and the basis for a fair trial.

As Professor Matthew Craven explains, “If one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts sustaining its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal rights, or sovereignty, on the part of the United States, absent of which the presumption remains.” According to Craven, only by the Hawaiian Kingdom’s “incorporation, union, or submission” to the United States, which is by treaty, can the presumption of continuity be rebutted.

There is no treaty, but rather a Congressional joint resolution of annexation that was signed into U.S. law on July 7, 1898, by President William McKinley. The problem is that a joint resolution is not a treaty but rather a United States municipal law that has no effect beyond the borders of the United States. Ninety years later, in 1988, the U.S. Department of Justice’s Office of Legal Counsel, in a legal opinion, 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. It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

Judge Kobayashi, in her latest Order, did not deny the customary international rule of the presumption of continuity of the Hawaiian Kingdom as a sovereign and independent State as was fully explained in the Hawaiian Kingdom’s Motion for Reconsideration. She also did not provide any rebuttable evidence to the presumption of continuity that the Hawaiian Kingdom was extinguished as a State under international law. As the U.S. Supreme Court stated, in The Paquette Habana, 175 U.S. 677, 700 (1900) “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”

In her Order, Judge Kobayashi disregarded international law and simply stated, “Although Plaintiff argues there are manifest errors of law in the 3/30/22 Order and the 3/31/22 Order, Plaintiff merely disagrees with the Court’s decision.” This is analogous to a defense attorney asking the presiding judge to set aside the judgment against the defendant because the prosecutor provided no evidence in trial rebutting the presumption of innocence. And the judge simply responded, “Defendant merely disagrees with the Court’s decision.” Despite the unlawfulness of such a judgment, the Defendant is still innocent.

More significantly though, in these proceedings, is that this cavalier statement by Judge Kobayashi neither denied the international rule of the presumption of continuity nor did she provide any rebuttable evidence that the Hawaiian Kingdom does not continue to exist. This is also a difficult task for Judge Kobayashi because the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, previously acknowledged the continued existence of the Hawaiian Kingdom as a “State” as shown in its case repository.

Consequently, by not providing any rebuttable evidence, i.e., a treaty, Judge Kobayashi acknowledged the continued existence of the Hawaiian Kingdom as a sovereign and independent State and yet disregarded her obligation under international law to transform the Court into an Article II Occupation Court.

In order to preserve the statements made by Judge Kobayashi and the defendants United States and the Swedish Consul, as well as the default entered by the Clerk for the State of Hawai‘i, to include Governor David Ige, Securities Commissioner Ty Nohara, and Director of the Department of Taxation Isaac Choy, and the twelve foreign Consulates also named as defendants in the case, which include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand, the Hawaiian Kingdom filed a Notice of Appeal today with the Court. In its opening paragraph, the Hawaiian Kingdom stated:

TO THE COURT AND TO ALL PARTIES HEREIN:

PLEASE TAKE NOTICE that Plaintiff HAWAIIAN KINGDOM, hereby preserves the record of these proceedings by its notice to appeal to a competent court of appeals to be hereafter established in the Hawaiian Kingdom by the United States as an Occupying Power in accordance with international humanitarian law from the Order granting in part and denying in part Defendant Nervell’s Motion to Dismiss [ECF 222], Order denying Plaintiff’s Motion for Judicial Notice [ECF 223], and Minute Order denying Plaintiff’s Motion for Reconsideration and Motion to Amend [ECF 227].

In its Notice of Appeal, the Hawaiian Kingdom addressed the lack of fairness by the federal Court and the legal consequences of Judge Kobayashi’s actions that constitute the war crime of “willfully” depriving the Hawaiian Kingdom of its “rights of fair and regular trial” guaranteed in the 1949 Fourth Geneva Convention. Grave breaches are war crimes that have been codified under federal criminal law in Title 18 U.S. Code §2441(c)(1).

Although the “Occupying Power is […] free to decide whether or not the competent courts of appeal are to sit in occupied territory,” Article 66 of the Fourth Geneva Convention “states that they should ‘preferably’ sit in the occupied country; this would be likely to provide the protected persons with additional safeguards.” See Jean S. Pictet, Commentary IV Geneva Convention (1958), 341. The United States has not established “competent courts of appeal” in the Hawaiian Kingdom or in the United States to address the Hawaiian Kingdom’s instant appeal.

Consequently, the Court’s disregard of obligations mandated under international law, in its refusal to transform, and the inability of Plaintiff to appeal to an Article II appellate court has willfully deprived Plaintiff of its “rights of fair and regular trial,” thus being a “grave breach” of the 1949 Fourth Geneva Convention, Article 147, 6.3 U.S.T. 3516, 3618 (1955); 18 U.S.C. §2441(c)(1).

The Hawaiian Kingdom concluded in its Notice of Appeal:

This Court was not “established and organized in accordance with the laws and procedures already in force” in the Hawaiian Kingdom, nor “in accordance with the recognized principles governing the administration of justice.”  Accordingly, the Hawaiian Kingdom’s notice of appeal is submitted for purposes of preserving the record of these proceedings in its appeal until this Court transforms or a competent Article II appellate court is established in compliance with international humanitarian law and Hawaiian Kingdom law.

The Court can learn from the Hawaiian Kingdom Supreme Court, in Shillaber v. Waldo et al., 1 Haw. 31, 32 (1848), where Chief Justice William Lee stated, “In the language of another, ‘Let justice be done though the heavens fall.’ Let the laws be obeyed, though it ruin every judicial and executive officer in the Kingdom. Courts may err. Clerks may err. Marshals may err—they do err in every land daily; but when they err let them correct their errors without consulting pride, expediency, or any other consequences.”

POINT OF CLARIFICATION: The Hawaiian Kingdom is not appealing to the 9th Circuit Court of Appeals because it is an Article III Court situated within the territory of the United States. If the United States District Court for the District of Hawai‘i was operating lawfully as an Article III Court, an appeal would be made with the 9th Circuit. However, this Court is not lawfully operating, and therefore the Hawaiian Kingdom is appealing to an Article II Appellate Court that has yet to be established. The purpose of the Notice of Appeal is also to preserve the record of these proceedings until either this Court transforms itself into an Article II Occupation Court or until the United States establishes Article II Appellate Courts.

Letters to Send to the Internal Revenue Service and State of Hawai‘i Department of Taxation

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If you are currently residing in the Hawaiian Islands, letters could be sent, by certified mail, to Charles P. Rettig, Commissioner of the Internal Revenue Service, and Isaac W. Choy, Director of the State of Hawai‘i Department of Taxation, regarding the unlawful collection of so-called taxes within the territorial jurisdiction of the Hawaiian Kingdom. Both individuals are named as defendants in their official capacities in the federal lawsuit Hawaiian Kingdom v. Biden.

Here is the link (MSWord file) of the letter to Commissioner Rettig, and here is the link (MSWord file) of the letter to Director Choy. Information in the letter is from the filings in Hawaiian Kingdom v. Biden.

Download both pdf files of the letters and use the information to draft your letters. You will need to insert the necessary information to personalize the letters and to provide your mailing address, phone number and email address. It is recommended that both letters be sent certified mail through the United States Postal Service.