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

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

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)

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

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.”

Reaping the Fruits of Labor – Strategic Plan of the Council of Regency

The Council of Regency, serving as the provisional government of the Hawaiian Kingdom, was established within Hawaiian territory—in situ, and not in exile. The Hawaiian government was established in accordance with the Hawaiian constitution and the doctrine of necessity to serve in the absence of the office of Executive Monarch. Queen Lili‘uokalani was the last Executive Monarch from 1891-1917.

By virtue of this process the Hawaiian government is comprised of officers de facto. According to U.S. constitutional scholar Thomas Cooley:

A provisional government is supposed to be a government de facto for the time being; a government that in some emergency is set up to preserve order; to continue the relations of the people it acts for with foreign nations until there shall be time and opportunity for the creation of a permanent government. It is not in general supposed to have any authority beyond that of a mere temporary nature resulting from some great necessity, and its authority is limited to the necessity.

During the Second World War, like other governments formed during foreign occupations of their territory, the Hawaiian government did not receive its mandate from the Hawaiian legislature, but rather by virtue of Hawaiian constitutional law as it applies to the Cabinet Council, which is comprised of the constitutional offices of the Minister of Interior, Minister of Foreign Affairs, Minister of Finance and the Attorney General.  

Although Article 33 of the 1864 Constitution, as amended, provides that the Cabinet Council “shall be a Council of Regency, until the Legislative Assembly, which shall be called immediately [and] shall proceed to choose by ballot, a Regent or Council of Regency, who shall administer the Government in the name of the King, and exercise all the Powers which are constitutionally vested in the King,” the convening of the Legislative Assembly was not possible in light of the prolonged occupation. The impossibility of convening the Legislative Assembly during the occupation did not prevent the Cabinet from becoming the Council of Regency because of the operative words “shall be a Council of Regency, until…,” but only prevents, for the time being of occupation, the Legislature from electing a Regency or Regency. That election will take place when the occupation comes to an end.

Therefore, the Council was established in similar fashion to the Belgian Council of Regency after King Leopold was captured by the Germans during the Second World War. As the Belgian Council was established under Article 82 of its 1821 Constitution, as amended, in exile, the Hawaiian Council was established under Article 33 of its 1864 Constitution, as amended, not in exile but rather in situ. As Professor Oppenheim explained:

As far as Belgium is concerned, the capture of the king did not create any serious constitutional problems. According to Article 82 of the Constitution of February 7, 1821, as amended, the cabinet of ministers have to assume supreme executive power if the King is unable to govern. True, the ministers are bound to convene the House of Representatives and the Senate and to leave it to the decision of the united legislative chambers to provide for a regency; but in view of the belligerent occupation it is impossible for the two houses to function. While this emergency obtains, the powers of the King are vested in the Belgian Prime Minister and the other members of the cabinet.

The existence of the restored government in situ was not dependent upon diplomatic recognition by foreign States, but rather operated on the presumption of recognition these foreign States already afforded to the Hawaiian government as of 1893.

The recognition of the Hawaiian Kingdom as a State on November 28, 1843, was also the recognition of its government—a constitutional monarchy, as its agent. Successors in office to King Kamehameha III, who at the time of international recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, and Queen Lili‘uokalani in 1891. The legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather under the constitution and laws of the Hawaiian Kingdom. According to Professor Peterson:

A government succeeding to power according to the constitution, basic law, or established domestic custom is assumed to succeed as well to its predecessor’s status as international agent of the state. Only if there is legal discontinuity at the domestic level because a new government comes to power in some other way, as by coup d’état or revolution, is its status as an international agent of the state open to question.

The Hawaiian Council of Regency is a government restored in accordance with the constitutional laws of the Hawaiian Kingdom as they existed prior to the unlawful overthrow of the previous administration of Queen Lili‘uokalani. It was not established through “extra-legal changes,” and, therefore, did not require diplomatic recognition to give itself validity as a government. It was a successor in office to Queen Lili‘uokalani as the Executive Monarch.

According to Professor Lenzerini in his legal opinion, based on the doctrine of necessity, “the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom.” He also concluded that the Regency “has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.”

After all four offices of the Cabinet Council were filled on September 26, 1999, a strategic plan was adopted based on its policy: first, exposure of the prolonged occupation; second, ensure that the United States complies with international humanitarian law; and, third, prepare for an effective transition to a completely functioning government when the occupation comes to end. The Council of Regency’s strategic plan has three phases to carry out its policy.

Phase I: Verification of the Hawaiian Kingdom as an independent State and subject of International Law

Phase II: Exposure of Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels.

Phase III: Restoration of the Hawaiian Kingdom as an independent State and a subject of International Law, which is when the occupation comes to an end.

This Grand Strategy of the Council of Regency is long term, not short term, and can be compared to China’s Grand Strategy, which is also long term. As Professors Flynt Leverett and Wu Bingbing explain in their article The New Silk Road and China’s Evolving Grand Strategy:

What is grand strategy, and what does it mean for China? In broad terms, grand strategy is the culturally shaped intellectual architecture that structures a nation’s foreign policy over time. It is, in Barry Posen’s aphoristic rendering, “a state’s theory of how it can best ‘cause’ security for itself.” Put more functionally, grand strategy is a given political order’s template for marshalling all elements of national power to achieve its self-defined long-term goals. Diplomacy—a state’s capacity to increase the number of states ready to cooperate with it and to decrease its actual and potential adversaries—is as essential to grand strategy as raw military might. So too is economic power. For any state, the most basic goal of grand strategy is to protect that state’s territorial and political integrity. Beyond this, the grand strategies of important states typically aim to improve their relative positions by enhancing their ability to shape strategic outcomes, maximize their influence, and bolster their long-term economic prospect.

Phase I was completed when the Permanent Court of Arbitration (PCA) acknowledged the continued existence of the Hawaiian Kingdom as a State for the purposes of its institutional jurisdiction under Article 47 of the 1907 Hague Convention, I, for the Pacific Settlement of International Disputes prior to forming the arbitration tribunal on June 9, 2000. This acknowledgment of the Hawaiian Kingdom as a State can be found at its case repository for Larsen v. Hawaiian Kingdom and on its website. The non-participation of the United States in the arbitration proceedings occurred “after” the PCA already acknowledged the continued existence of Hawaiian Kingdom Statehood.

On the day when the arbitration tribunal was formed, Phase II was initiated—exposure. Phase II would be guided by Section 495—Remedies of Injured Belligerent, United States Army FM 27-10, which states, “In the event of violation of the law of war, the injured party may legally resort to remedial action of…Publication of the facts, with a view to influencing public opinion against the offending belligerent.” The exposure began with the filings of the Hawaiian Kingdom in the arbitration proceedings and its oral arguments on December 8 and 11, 2000, at the PCA, in The Hague, Netherlands, which can be seen in this mini-documentary of the proceedings.

After the last day of the Larsen hearings were held at the PCA on December 11, 2000, the Council was called to an urgent meeting by Dr. Jacques Bihozagara, Ambassador for the Republic of Rwanda assigned to Belgium. Ambassador Bihozagara had been attending a hearing before the International Court of Justice (ICJ) on December 8, Democratic Republic of the Congo v. Belgium, where he became aware of the Hawaiian arbitration case taking place in the hearing room of the PCA across the hall of the Peace Palace. Both the PCA and the ICJ are housed in the same building.

The following day, the Council, which included David Keanu Sai, acting Minister of Interior and Chairman of the Council of Regency, as Agent, and two Deputy Agents, Peter Umialiloa Sai, acting Minister of Foreign Affairs, and Mrs. Kau‘i P. Sai-Dudoit, formerly known as Kau‘i P. Goodhue, acting Minister of Finance, met with Ambassador Bihozagara in Brussels. In that meeting, the Ambassador explained that since he accessed the pleadings and records of the Larsen case on December 8 from the PCA’s Secretariat, he had been in communication with his government in Kigali. This prompted our meeting where the Ambassador conveyed to the Council that his government was prepared to bring to the attention of the United Nations General Assembly the prolonged occupation of the Hawaiian Kingdom by the United States and to place our situation on the agenda. The Council requested a short break from the meeting to discuss this offer.

After careful deliberation, the Council of Regency decided that it could not, in good conscience, accept this offer. The Council felt that the timing was premature because Hawai‘i’s population remained ignorant of the Hawaiian Kingdom’s profound legal position due to institutionalized denationalization through Americanization by the United States for over a century. The Council graciously thanked the Ambassador for his government’s offer but stated that the Council first needed to address over a century of denationalization. After exchanging salutations, the meeting ended, and the Council returned that afternoon to The Hague. The meeting also constituted recognition of the restored government.

Since the Council of Regency returned home from the Netherlands, it was agreed that David Keanu Sai would enter the University of Hawai‘i at Mānoa to pursue a Masters Degree in Political Science, specializing in international relations and law, and then a Ph.D. Degree in Political Science with particular focus on the continued existence of the Hawaiian Kingdom as a State. Dr. Sai is currently a Lecturer in Political Science and Hawaiian Studies at the University of Hawai‘i Windward Community College and Affiliate Faculty of the Graduate Division of the University of Hawai‘i College of Education.

Kau‘i Sai-Dudoit would work for the Hawaiian newspaper project and she is currently Programs Director for Awaiaulu, Inc. Awaiaulu is dedicated to developing resources and resource people that can bridge Hawaiian knowledge from the past to the present and the future. Historical resources are made accessible so as to build the knowledge base of both Hawaiian and English-speaking audiences, and young scholars are trained to understand and interpret those resources for modern audiences today and tomorrow.

Since Phase II of Exposure began:

In a documentary film on the Council of Regency, Donovan Preza, an Instructor at the University of Hawai‘i Kapi‘olani Community College stated:

Keanu was a boxer. He attended New Mexico [Military Institute] on a boxing scholarship so this is where I like to use this metaphor. Keanu has been brilliant about if the ring is this big-this is the boxing ring-when you’re standing here and America is standing there you’re not going to punch, you’re not going to land your knockout punch from across the ring. And America has been evading, dancing and sidestepping, not answering the question. You bring anything up in an American court and the political strategy used by the court is to make it a political question. Political question, the courts don’t have to answer it. So they kept dancing around not answering the question and Hawai‘i has never gotten close enough to force them to answer the question. And that’s what Keanu and the acting Council of Regency has been doing is systematically making that ring smaller, and smaller, and smaller, day by day, step by step, inch by inch. Everybody wants the ring to be this small now but small steps, increments, they’ve been doing that incrementally. If you’ve been paying attention to what they’ve been doing they have been making the ring smaller. Everybody wants to watch the knockout punch. Have some patience. Watch the ring get smaller until America has to answer the question. When they have to answer the question that’s when you can knock them out.

In the latest filings in Hawaiian Kingdom v. Biden et al., the Hawaiian Kingdom delivered the “knockout punch.” Judge Leslie Kobayashi was forced to answer the question of whether the Hawaiian Kingdom’s continued existence as a State under international law was extinguished by the United States. Because of the international rule of the presumption of continuity of a State despite the overthrow of its government, the question was not whether the Hawaiian Kingdom “does” continue to exist but rather can Judge Kobayashi state with evidence that the Hawaiian Kingdom “does not” continue to exist.

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.”

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.

After eleven months of these court proceedings, the Hawaiian Kingdom was finally able to corner Judge Kobayashi to legally compel her to answer the question of extinguishment after she made it an issue in her Order of March 30, 2022 and Order of March 31, 2022. In these two Orders, Judge Kobayashi made the terse statement “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 in these Orders but she did, however, open the door for the Hawaiian Kingdom to respond.

The Hawaiian Kingdom responded with a Motion for Reconsideration filed on April 11, 2022, that legally compelled Judge Kobayashi to provide a “valid demonstration of legal rights, or sovereignty, on the part of the United States, absent of which the presumption remains.” In her Order of April 19, 2022, denying the Hawaiian Kingdom’s Motion for Reconsideration, Judge Kobayashi provided no “valid demonstration of legal rights, or sovereignty, on the part of the United States.” She 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 statement without any evidence is not a rebuttal of the presumption of the continuity of the Hawaiian Kingdom.

As a United States District Court Judge, by not providing any evidence in these proceedings that the Hawaiian Kingdom was extinguished, she simultaneously acknowledged its continued existence. This is the power of the international rule of the presumption of continuity that operates no different than the presumption of innocence in a criminal trial. Just as a defendant does not have the burden to prove his/her innocence but rather the prosecution has the burden to prove with evidence the guilt of the defendant, the Hawaiian Kingdom does not have the burden to prove its continued existence but rather the opposing party has the burden to prove with evidence that the United States extinguished the Hawaiian Kingdom as a State under international law.

These federal proceedings have now come to a close and the records have been preserved when the Hawaiian Kingdom filed a Notice of Appeal on April 24, 2022, to be taken up by an Article II Occupation Court of Appeals that has yet to be established by the United States. By preserving the record, the Hawaiian Kingdom can utilize Judge Kobayashi’s statements against the United States and the State of Hawai‘i and its Counties.

Dr. Keanu Sai to Deliver Statement on the U.S. Occupation of Hawai‘i to UN Human Rights Council on March 21

On March 21, 2022, the United Nations Human Rights Council (HRC) in Geneva, Switzerland, will be convening for its General Debate. On this day, Non-Government Organizations (NGOs) with accreditation to the United Nations Economic and Social Council will be delivering oral statements by video recording on situations that require the attention of the HRC. The public can view the General Debate online at the United Nations Web TV. Recordings will be uploaded the day after.

UN Photo/Jean-Marc Ferré

The International Association of Democratic Lawyers and the American Association of Jurists—Asociación Americana de Juristas (AAJ), both of whom are accredited NGOs, will be jointly sponsoring an oral statement to be delivered by Dr. Keanu Sai on the subject of the prolonged occupation of the Hawaiian Kingdom and the violation of human rights of Hawaiian subjects as a result of the unlawful imposition of American laws, being the war crime of usurpation of sovereignty, over the territory of the Hawaiian Kingdom for over a century. The IADL-AAJ have been assigned the 10th slot to deliver the oral statement on Monday.

The IADL and the AAJ uploaded the following information on the Hawaiian Kingdom’s prolonged occupation to accompany its oral statement: the PCA Case Repository of Larsen v. Hawaiian Kingdom (1999-2001), the National Lawyers Guild’s (NLG) Resolution on the prolonged occupation of the Hawaiian Kingdom (2019), the Position Statement by the NLG (2020), the ebook Royal Commission of Inquiry (2020), the NLG’s letter to State of Hawai‘i Governor David Ige (2020), the IADL resolution (2021), and a copy of the IADL-AAJ joint letter to the ambassadors accredited to the United Nations in New York City and Geneva (2022).

National Holiday – Independence Day (November 28)

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

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George Simpson
Haalilio

The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William Richards

Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Daniel Webster

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Aberdeen

Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C Calhoun

This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”

Press Release: Czech Republic Temporarily Closes its Hawai‘i Consulate After Being Notified that its Consulate Stands in Violation of International Law and Hawaiian Kingdom Law

PRESS RELEASE

For immediate release – 23 August 2021
Contact: Dr. David Keanu Sai, Ph.D.
E-mail: interiorhk@hawaiiankingdom.org

Czech Republic Temporarily Closes its Hawai‘i Consulate After Being Notified that its Consulate Stands in Violation of International Law and Hawaiian Kingdom Law

HONOLULU, 23 August 2021 — In a letter dated 14 July 2021, U.S. Federal Magistrate Judge Rom Trader, who has been assigned the Hawaiian Kingdom v. Biden et al. lawsuit, was notified by Josef Smycek, Deputy Consul General for the Czech Republic’s Consulate General in Los Angeles, that after receiving the Hawaiian Kingdom’s complaint where the Czech Republic’s Hawai‘i Consulate was named as a defendant it temporarily closed its “Honorary Consulate of the Czech Republic” after consulting with “the Ministry of Foreign Affairs of the Czech Republic in Prague.”

Two weeks prior to the filing of the complaint, H.E. David Keanu Sai, Minister of Foreign Affairs ad interim, sent a letter of correspondence dated 20 April 2021 to H.E. Hynek Kmoníček, Czech Republic’s Ambassador to the United States, notifying him:

The Czech Republic’s Honorary Consulate within the territory of the Hawaiian Kingdom is by virtue of ‘American municipal laws,’ which stand in violation of Hawaiian sovereignty and independence, and, therefore, constitutes an internationally wrongful act. As an occupied State, Hawaiian independence and sovereignty is preserved under the rules and principles of international law despite over a century of effective occupation and control of Hawaiian territory by the United States. In order to rectify this internationally wrongful act, the Council of Regency is ready to receive Mrs. Ching’s credentials as Honorary Consul and is prepared to grant an execquatur to the same.

Other Countries whose Ambassadors who were also notified that their Consulates in Hawai‘i are maintained in violation of international law include Australia, Austria, Bangladesh, Belgium, Brazil, Chile, Denmark, Finland, France, Germany, Hungary, India, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Norway, Philippines, Poland, Portugal, Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, and Thailand. Of these countries, the Hawaiian Kingdom has treaties with Australia, Austria-Hungary, who is the predecessor State of the Czech Republic, Belgium, Denmark, France, Germany, Italy, Japan, Luxembourg, Netherlands, New Zealand, Sweden-Norway, Spain, and Switzerland.

After receiving no response from the Czech Republic nor any of the other countries, the Council of Regency filed its complaint with the United States District Court for the District of Hawai‘i. The complaint read:

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

In its amended complaint filed with the Court on 11 August 2021, the Hawaiian Kingdom acknowledges the closure of the Czech Republic’s Consulate as conforming to international law. The complaint read:

On June 30, 2021, the Czech Republic filed a letter to this Court announcing the temporary closure of its Honorary Consulate in the Hawaiian Kingdom. The Hawaiian Kingdom acknowledges this act of State to be in conformity with Article 30(a) of Responsibility of States for Internationally Wrongful Acts (2001), whereby “[t]he State responsible for the internationally wrongful act is under an obligation (a) to cease that act, if it is continuing.” Article 30(b), however, states that the responsible State shall “offer appropriate assurances and guarantees of non-repetition, if circumstances so require.” The Czech Republic has yet to assure the government of the HAWAIIAN KINGDOM guarantees of non-repitition. Furthermore, Article 31 provides that the “responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act,” and that the “[i]njury includes any damage, whether material or moral, caused by the internationally wrongful act of State.”

According to Minister Sai, “all of the foreign consulates named in the complaint are Contracting States to the 1907 Convention that established the Permanent Court of Arbitration (PCA). These defendants are also members of PCA Administrative Council, which include the Czech Republic, that publishes the PCA Annual Reports of 2000 through 2011 that acknowledge the Hawaiian Kingdom as a non-Contracting State in the arbitral dispute Larsen v. Hawaiian Kingdom.” “In other words,” stated Minister Sai, “these defendants were aware of the American occupation since, at least, the PCA Annual Report of 2000, and willfully and unlawfully maintained their Consulates in violation of international law.”

Minister Sai also served as lead agent for the Council of Regency in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01, from 1999-2001, where the PCA explicitly acknowledged the Hawaiian Kingdom as a “State.” He is also the Head of the Royal Commission of Inquiry that recently published an eBook The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

Professor Federico Lenzerini, a professor of international law at the University of Siena, Italy, explains, “As a scholar of international law, like most of my colleagues in Europe, I was not aware about the legal status of Hawai‘i as an independent State. Like most people, I considered Hawai‘i to be a State of the United States Federal Union. However, after a more in-depth research, and after having had the good fortune to interact with the people who struggle day after day for the recovery of the political and cultural identity of the Hawaiian Islands, I was amazed about the rich history of the Hawaiian Kingdom as a sovereign country and its political and diplomatic relations with Italy and many other countries of Europe, mainly based on treaties which are still valid today. In my legal opinion, I explain why the Hawaiian Kingdom continues to exist as an independent State according to the rules of international law, and also provide the arguments confirming the full legitimacy of the Council of Regency, which possesses the authority of representing the Hawaiian Kingdom at the domestic as well as at the international level.”

For an authoritative legal explanation on the continuity of the Hawaiian Kingdom and the authority of the Council of Regency see Professor Federico Lenzerini’s legal opinion on this subject. Professor Lenzerini was quoted by the Lidovky’s story, Surfem ke svobodě. Havajané se chtějí osamostatnit, na olympiádě touží mít vlastní vlajku. Professor Lenzerini is also Deputy Head of the Royal Commission of Inquiry. He can be contacted by email at: federico.lenzerini@unisi.it.

On January 13, 2020, the National Lawyers Guild (NLG), the oldest and largest progressive bar association in the United States, called upon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893. As the longest running occupation of a foreign country in the history of international relations, the United States has been in violation of international law for over a century.

In a letter to State of Hawai‘i Governor Ige dated November 10, 2020, the NLG called “upon the State of Hawai‘i and its County governments, as the proxy of the United States, which is in effective control of Hawaiian territory, to immediately comply with international humanitarian law while the United States continues its prolonged and illegal occupation of the Hawaiian Kingdom since 1893.”

The position taken by the NLG was supported by a resolution that was passed by the International Association of Democratic Lawyers (IADL) on February 7, 2021. The IADL is a non-governmental organization of human rights lawyers founded in 1946, with member associations throughout the world and with consultative status in the United Nations Economic and Social Committee. It’s headquarters is in Brussels, Belgium, and is dedicated to upholding international law and promoting the tenets of the UN Charter in furtherance of peace and justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Hawaiian Journal of Law and Politics at the University of Hawai‘i at Mānoa

The Hawaiian Journal of Law and Politics (HJLP) at the University of Hawaiʻi at Mānoa just published its third volume. Itʻs last edition, volume 2, was published back in the summer of 2006. The journal is published by the Hawaiian Society of Law and Politics (HSLP) which is a student organization at the university comprised of students, faculty and staff at the University of Hawai‘i at Mānoa.

HSLP was founded as a registered independent organization under Co-curricular Activities, Programs, and Services at the University of Hawaiʻi at Mānoa in October 30, 2003. In 2014, the organization had disbanded, only to be revived in the Spring of 2021 with an all-new membership.

Volume 3 of the HJLP has three original articles and reprints of articles and chapters that were authored by alumni of HSLP. These alumni all have Ph.D. degrees. Of the original articles, Dr. Kalawai‘a Moore is the Editor of HJLP and is the author of the “Editorʻs Notes,” and the article “American Hegemonic Discourse in Hawai‘i: Rhetorical Strategies in Support of American Control Over Hawai‘i.” Dr. Keanu Sai is the author of “Setting the Record Straight on Hawaiian Indigeneity.” And Dr. Umi Perkins is the author of “Negotiating Native Tenant Rights.”

Authors of the reprint of articles and chapters include Dr. Keao NeSmith who is the author of “Tūtūtʻs Hawaiian and the Emergence of a Neo Hawaiian Language.” Dr. Sydney Iaukea is the author of “The Queen and I: a Story of Dispossessions and Reconnections in Hawai‘i.” And Dr. Lorenz Gonschor is the author of “The Subtleties of a Map and a Painting.”

Professor Niklaus Schweizer is the author of a book review of the “Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.”

Dr. Keanu Sai is the author of “The Royal Commission of Inquiry.” Professor William Schabas is the author of the “Legal Opinion on War Crimes Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893.” And Professor Federico Lenzerini is the author of the “Legal Opinion on the Authority of the Council of Regency of the Hawaiian Kingdom.”

It is recommended to first read Dr. Kalawaiʻa’s “Editor’s Note” where he explains the hiatus of the HJLP since 2006 and why this volume is dedicated to the late Professor Kanalu Young who served as the faculty advisor for HSLP. Followed by Dr. Sai’s article “Setting the Record Straight on Hawaiian Indigeneity,” Dr. Kalawai’s article “American Hegemonic Discourse,” and Dr. Perkins’ article “Negotiating Native Tenant Rights.”

Dr. Keanu Sai to Present on the Hawaiian Kingdom, United States and International Law on April 8

Dr. Keanu Sai will be covering in his presentation some of the subjects in his latest article “Setting the Record Straight on Hawaiian Indigeneity” that was recently published in volume 3 of the Hawaiian Journal of Law and Politics at the University of Hawai‘i at Manoa. Dr. Sai asked that everyone read the article before his presentation on April 8, 2021.

7:30pm Indian Standard Time (IST) is:

10:00am Eastern Time

7:00am Pacific Time

4:00am Hawai‘i Time

Dr. Sai’s presentation will be via Zoom:

Zoom Linkhttps://zoom.us/j/93879471109
Password: JGU

U.S. Explicitly Recognizes the Continued Existence of the Hawaiian Kingdom and its restored government

Explicit Recognition by the United States of America of the Continued Existence of the Hawaiian Kingdom and its government—the Council of Regency

HONOLULU, 5 April 2021 — On 15 March 2021, Dr. David Keanu Sai, Chairman of the Council of Regency, and Mrs. Kau‘i Sai-Dudoit, Minister of Finance, was notified that the “Securities Commission of the State of Hawaii is about to commence an enforcement action against [them] based upon the sale of unregistered Kingdom of Hawaii Exchequer Bonds, in violation of HRS § 485A-301.” In § 485A-201(2) of the statute it states that bonds issued “by a foreign government with which the United States maintains diplomatic relations” are exempt.

The State of Hawai‘i has taken the dubious position that the Council of Regency is not a government and that the Hawaiian Kingdom does not exist. This position, however, runs counter to the United States explicit recognition of the continuity of the Hawaiian Kingdom, as a State, and its government—the Council of Regency, when arbitral proceedings were instituted at the Permanent Court of Arbitration (PCA) on 8 November 1999 in Larsen v. Hawaiian Kingdom. This explicit recognition by the United States has serious consequences for the State of Hawai‘i because it triggered the Supremacy Clause under federal law, where “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The United States Supreme Court, in United States v. Curtiss-Wright Export Corp., stated that the rule of the Supremacy Clause holds “in the case of international compacts and agreements [when it forms] the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.”

Attached to this press release is a Preliminary Report of the Royal Commission of Inquiry that explains not only the United States explicit recognition of the Council of Regency and the continued existence of the Hawaiian Kingdom, but also by the explicit recognition by the other treaty partners of the Hawaiian Kingdom, which includes Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, and Switzerland.

The Supremacy Clause has rendered the State of Hawai‘i incapacitated because under international law, congressional acts, which includes the 1959 Statehood Act, have no effect in the territory of a foreign State unless it has the consent by the government of that State. There is no consent from the Hawaiian government since 1893 that would allow American municipal laws to have any effect within the territory of the Hawaiian Kingdom. This was precisely the dispute between Larsen and the Council of Regency. As the PCA stated:

Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.

American municipal laws include the constitution and laws of the State of Hawai‘i. Under international criminal law, the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty. War crimes have no statute of limitation and a person who commits a war crime can be prosecuted even after 50 years from the time the war crime was committed. Under international law, war criminals are subjected to be prosecuted by all States when they enter the State’s territory even though the crimes were committed outside of their territories. Finland and Switzerland are currently prosecuting war criminals for crimes committed in Liberia.

The only way for the State of Hawai‘i and its Counties to continue to govern is in accordance with international humanitarian law and the law of occupation. From a domestic standpoint, the Supremacy Clause renders the existence of the State of Hawai‘i unconstitutional and void because its existence is in conflict with treaties that the United States has ratified, which includes the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation. To continue to govern would be to transform themselves into an occupying government within the limits and what is allowed under international law.

In a letter of correspondence from Dr. Sai, as Head of the Royal Commission of Inquiry (RCI), to State of Hawai‘i Attorney General Clare E. Connors, dated 2 June 2020, the Attorney General was notified that:

I am not aware whether you were informed of three meetings I had in 2015 with Mike McCartney, former chief of staff for Governor David Ige, at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. This prompted a report I submitted to him that summarized what we discussed in those three meetings and how the State of Hawai‘i has a duty, under international humanitarian law, to transform itself into a Military government by virtue of Article V, section 5 of the Constitution of the State of Hawai‘i. United States practice for Military government is covered in United States Army and Navy FM 27-5, and occupation of an occupied State is covered in FM 27-10. The Adjutant General, MG Kenneth Hara, should be aware of these regulations and the function of a Military government.

These are not normal times but you are the legal advisor to the Governor, and due to the severity of the situation under international criminal law and the material elements of mens rea and actus reus, I respectfully implore you to carefully review the information I have provided you and to advise the office of the Governor accordingly. Under international humanitarian law, decisions on this matter are not with the federal government nor is it with its military here in the islands, but solely on the shoulders of the State of Hawai‘i as it is the entity in effective control of Hawaiian territory thereby triggering the law of occupation. I should also note that the governmental infrastructure of the State of Hawai‘i is that of the Hawaiian Kingdom. The only change was in name, e.g. the Department of Land and Natural Resources is the Ministry of the Interior. All that was changed in 1893 was the Queen and her cabinet, and the top law enforcement of the kingdom, being forcibly replaced by insurgents calling themselves the Executive and Advisory Councils.

Both the National Lawyers Guild (NLG) and the International Association of Democratic Lawyers (IADL) have called upon the State of Hawai‘i to transform itself into an occupying government. In its letter to Governor David Ige of 10 November 2020, the NLG stated:

We urge you, Governor Ige, to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to familiarize yourselves with the contents of the recent eBook published by the RCI and its reports that comprehensively explains the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.”

In its resolution of 7 February 2021, the “IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to ‘proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2104 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”

The NLG letter and the IADL resolution are attached to this press release.

The actions taken by the State of Hawai‘i against government officials of the Hawaiian Kingdom also constitutes a violation of Article 54 of the Fourth Geneva Convention, which states, “The Occupying Power may not alter the status of public officials…in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against the them.” The Fourth Geneva Convention was ratified by the United States Senate on 6 July 1955 and came into force on 2 February 1956. As such, the Fourth Geneva Convention comes under the Supremacy Clause.

In light of the awareness of the occupation by the leadership of the State of Hawai‘i, these allegations against the Hawaiian government officials constitute malicious intent. As pointed out by Professor Lenzerini, under the rules of international law, “the working relationship between the Regency and the administration of the occupying State would have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory.” This unwarranted attack is a violation of the law of occupation, and as a proxy for the United States, it also constitutes an international wrongful act.

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