Ongoing International Armed Conflict between the U.S. and Hawai‘i

Before war crimes can be alleged to have been committed in the Hawaiian Islands, there must be a state of waran international armed conflict between the Hawaiian Kingdom and the United States. Black’s Law (1996), states, “For there to be a ‘war,’ a sovereign or quasi-sovereign must engage in hostilities (p. 1583).”

Professor Clapham, director of the Geneva Academy of International Humanitarian Law and Human Rights and professor in international law at the Geneva Graduate Institute, however, states that “the classification of an armed conflict under international law is an objective legal test and not a decision left to national governments or any international body, not even the UN Security Council.” As an international armed conflict is a question of fact, these facts must be objectively tested by the principles of international humanitarian law as provided in the 1907 Hague Conventions, the 1949 Geneva Conventions and its 1977 Additional Protocols.

German Occupation of Luxembourg WWIThe German occupations of Luxembourg from 1914-1918 during the First World War and from 1940-1945 during the Second World War occurred without resistance and were not wars in the technical sense, but, according to the Nuremburg trials, were wars of aggression against a neutral State—crimes against peace. In its judgment, vol. XXII, 452 (14 Nov. 1945-1 Oct. 1946), the Nuremburg Tribunal decreed, “The invasion of Belgium, Holland, and Luxembourg was entirely without justification [and] was carried out in pursuance of policies long considered and prepared, and was plainly an act of aggressive war (p. 452).”

The experience of both World Wars is what prompted international humanitarian law to replace the narrow term “war” with the more expansive term “armed conflict.” Armed conflicts include both hostilities between armed forces as well as occupations of a State’s territory that occurred without armed resistance, i.e. Luxembourg. This is why Article 2 of all four 1949 Geneva Conventions state that the Convention will also apply “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” War crimes are defined as grave breaches in the Conventions.

According to the International Committee of the Red Cross (ICRC) Commentary of the Fourth Geneva Convention (1958), this wording of Article 2 “was based on the experience of the Second World War, which saw territories occupied without hostilities, the Government of the occupied country considering that armed resistance was useless. In such cases the interests of protected persons are, of course, just as deserving of protection as when the occupation is carried out by force (p. 21).” According to Dr. Casey-Maslen in The War Report 2013 (2014), an international armed conflict exists “whenever one state uses any form of armed force against another, irrespective of whether the latter state fights back,” which “includes the situation in which one state invades another and occupies it, even if there is no armed resistance (p. 7).” The ICRC Commentary further clarifies that “Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts… The respect due to the human person as such is not measured by the number of victims (p. 20).”

Although the Conventions apply to Contracting State Parties, it is universally understood that the Conventions reflect customary international law that bind all States. On this subject, the Commentary clarifies that “any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party’s declaration (p. 24).” Even if a State should denounce the Fourth Convention according to Article 158, the denouncing State “would nevertheless remain bound by the principles contained in [the Convention] in so far as they are the expression of the imprescriptible and universal rules of customary international law (p. 625).”

“According to the Rules of Land Warfare of the United States Army,” in Professor Hyde’s Land Warfare (1918), “belligerent or so-called military occupation is a question of fact. It presupposes a hostile invasion as a result of which the invader has rendered the invaded Government incapable of publicly exercising its authority, and that the invader is in a position to substitute and has substituted his own authority for that of the legitimate government of the territory invaded (p. 8).” The armed conflict arose out of the United States’ belligerent occupation of Hawaiian territory in order to wage war against the Spanish in the Pacific without the consent from the lawful authorities of the Hawaiian Kingdom. Since the end of the Spanish-American War by the 1898 Treaty of Paris, the Hawaiian Kingdom has remained belligerently occupied and its territory was used as a base of military operations during World War I and II, the Korean War, the Vietnam War, the Gulf War, the Iraqi War, and the United States war on terrorism.

“A declaration of war,” says Oppenheim’s International Law, vol. 2, “is a communication by one State to another that the condition of peace between them has come to an end, and a condition of war has taken its place (p. 293);” and war is “considered to have commenced from the date of its declaration, although actual hostilities may not have been commenced until much later (p. 295).” While customary international law does not require a formal declaration of war to be made before international law recognizes a state of war, it does, however, provide notice to not only the opposing State of the intent of the declarant State, but also to all neutral States that a state of war has been established.

The Hawaiian Kingdom has again been drawn into another state of war as shown in the DPRK’s March 30, 2013 declaration of war, which stated, “It is self-evident that any military conflict on the Korean Peninsula is bound to lead to an all-out war, a nuclear war now that even U.S. nuclear strategic bombers in its military bases in the Pacific including Hawaii and Guam and in its mainland are flying into the sky above south Korea to participate in the madcap DPRK-targeted nuclear war moves.” The day before the declaration of war, DPRK’s Korean Central News Agency reported, Supreme Commander of the Korean People’s Army Marshal Kim Jong Un “signed the plan on technical preparations of strategic rockets of the KPA, ordering them to be on standby for fire so that they may strike any time the U.S. mainland, its military bases in the operational theaters in the Pacific, including Hawaii and Guam, and those in south Korea.” In response to the declaration of war, the BBC reported, “The US Department of Defense said on Wednesday it would deploy the ballistic Terminal High Altitude Area Defense System (Thaad) to Guam in the coming weeks.”

From an international law standpoint, the armistice agreement of July 27, 1953 did not bring the state of war to an end between North Korea and South Korea because a peace treaty is still pending. The significance of the DPRK’s declaration of war of March 30, 2013, however, has specifically drawn the Hawaiian Islands into the region of war because it has been targeted as a result of the United States prolonged occupation.

In light of the DPRK’s declaration of war, the Hawaiian Kingdom is situated in a region of war that places its civilian population, to include foreign nationals, in perilous danger similar to Japan’s attack of U.S. military forces situated in the Hawaiian Islands on December 7, 1941. According to Oppenheim, “The region of war is that part of the surface of the earth in which the belligerents may prepare and execute hostilities against each other (p. 237).” While neutral States do not fall within the region of war, there are exceptional cases, such as when a belligerent invades a neutral State, i.e. Luxembourg by Germany during World War I and II. The United States invasion of the Hawaiian Kingdom occurred during the Spanish-American War just 16 years before the German occupation of Luxembourg in 1914, and has since been prolonged.

Camp McKinley 1898

What is rarely mentioned regarding the Japanese attack are civilian casualties, who numbered 55 to 68 deaths and approximately 35 wounded. According to Dr. Kelly, “It is not 100 percent clear, but it seems likely that most, if not all, of the casualties in civilian areas were inflicted by ‘friendly fire,’ our own anti-aircraft shells falling back to earth and exploding after missing attacking planes.”

Civilian_Casualty_Pearl_Harbor

The advancement of modern weaponry, which includes North Korea’s cyber warfare capability against Sony Pictures, far surpasses the conventional weapons used during the Japanese attack, and foreign governments should be concerned for the safety of their citizens that currently reside within the territory of the Hawaiian Kingdom who are afforded protection under international humanitarian law.

Furthermore, should the DPRK invade and occupy a portion or the entire territory of the Hawaiian Kingdom during the state of war it would nevertheless be bound by the Fourth Geneva Convention, as is the United States. The DPRK, United States and the Hawaiian Kingdom, are High Contracting Parties to the Fourth Geneva Convention. The DPRK ratified the Convention on August 27, 1957; the United States ratified the Convention on August 2, 1955; and the Hawaiian Kingdom acceded to the Convention on November 28, 2012, which was acknowledged and received by Ambassador Benno Bättig, General Secretariat of the Swiss Federal Department of Foreign Affairs, on January 14, 2013, at the city of Bern, Switzerland.

Under United States federal law, Title 18 U.S.C. §2441, a war crime is a felony and defined as any conduct “defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949,” and conduct “prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907.” United States Army Field Manual 27-10, section 499, expands the definition of a war crime, which is applied in armed conflicts that involve United States troops such as the occupation of the Hawaiian Kingdom, to be “the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.”

Origin of the Hawaiian Kingdom Flag

51CB3C86A38011DCDuring the reign of Kamehameha I in the eighteenth century, there were three separate kingdoms—the island Kingdom of Hawai‘i; the island Kingdom of Maui under Kahekili together with the islands of Kaho‘olawe, Lana‘i, Molokai and O‘ahu; and the island of Kaua‘i under Ka‘eo together with the island of Ni‘ihau. Kamehameha governed the island Kingdom of Hawai‘i according to ancient tradition and strict religious protocol.

Union_flag_1606_(Kings_Colors)In 1794, after voluntarily ceding the island Kingdom of Hawai‘i to Great Britain and joining the British Empire, Kamehameha and his chiefs considered themselves British subjects and recognized King George III as emperor. The cession to Great Britain did not radically change traditional governance, but principles of English governance and titles were instituted such as Prime Minister and Governors. The British colors was given to Kamehameha by Vancouver and flown over the island Kingdom of Hawai‘i.

British_East_India_Company_flagIn 1816, Kamehameha adopted a national flag design very similar to the British East India Company with the Union Jack in the canton.

The Hawaiian flag replaced the thirteen red and white stripes which appeared to vary between seven and nine alternating colored stripes of white, blue and red. Historical records give conflicting number of stripes.

Flag_of_Hawaii_(1816).svg

The Hawaiian flag was not flown over the island Kingdom of Kaua‘i because it was a vassal kingdom under Kamehameha through voluntary cession by its King Kaumuali‘i in 1810. Kaumuali‘i was the son of Ka‘eo and succeeded his father after he died in a great battle against the Kingdom of Maui on the plains of Honolulu on the island of O‘ahu in December 1794. This vassalage came to an end on August 8, 1824, after the Kaua‘i chiefs unsuccessfully rebelled under Humehume, son of Kaumuali‘i, King of Kaua‘i. Humehume was removed to O‘ahu under the watch of Kalanimoku, and all of the Kaua‘i chiefs were dispersed throughout the other islands and their lands replaced with Hawai‘i island chiefs.

Below is a drawing from the Alexander Adams collection at the Hawai‘i Archives of the ship named the Ka‘ahumanu  (circa. 1817) that Captain Adams commanded for King Kamehameha I. The ship flies both the National flag and the Royal flag, which would indicate that King Kamehameha was on board.

Hawn Flag (Adams Collection)

On November 28, 1843, the Hawaiian Kingdom was formally separated from the British Empire when Great Britain recognized Hawaiian Independence, and two years later on May 25, 1845 a revised national flag was unfurled at the opening of the Hawaiian legislature. The Hawaiian flag previous to 1845 differed only in the amount of stripes and also the arranging of the colors. The person accredited with the designing of the new flag was Captain Hunt of H.B.M.S. Baselisk. It has since remained unchanged to date. In the Polynesian Newspaper of May 31, 1845, was the following article:

“At the opening of the Legislative Council, May 25, 1845, the new national banner was unfurled, differing little however from the former. It is octo. (eight) parted per fess (horizontal band), first, fourth and seventh, argent (silver represented by the color white): second, fifth and eighth, gules (the color red): third and sixth, azure (light purplish blue), for the eight islands under one sovereign, indicated by crosses saltire, of St. Andrew and St. Patrick quarterly, per saltire counter changed, argent (white) and gules (red).”

kingdom_flag_1845

Below is a photo of the Hawaiian Kingdom flag being lowered from ‘Iolani Palace on August 12, 1898 when the prolonged occupation of the Hawaiian Kingdom began during the Spanish-American War. It has since been flown below the American flag throughout the Hawaiian Islands in violation of the sovereignty of the Hawaiian Kingdom.

Hawaiian Flag Lowered 1898

Students Meet with UH Hilo Vice-Chancellor Regarding Hawaiian Kingdom Flag

La‘akea CaravalhoLa‘akea Caravalho and other students from the University of Hawai‘i at Hilo met with theGail Makuakane-Lundin University’s Interim Vice Chancellor for Student Affairs Gail Makuakane-Lundin regarding their request that the Hawaiian Kingdom flag fly will no longer be flown below the American flag as it has since the occupation began on August 12, 1898, but will be flown on a separate flagpole of equal height to the American flag. Additionally, the Hawaiian Kingdom flag will be the first to be raised and the last to be lowered each day.

In the meeting, Vice-Chancellor Makuakane-Lundin told the students that the administration for the University of Hawai‘i at Hilo took their request very seriously, and after they met to discuss the matter the administration decided that the students’ request would be honored.

Big Island News Video reported:

The reasoning behind the action is evident in a letter written by students of the University of Hawai‘i to faculty and administrators, which began by saying the students have found the university has committed war crimes under the illegal occupation, specifically “pillaging” and “Americanization.” The letter relies on evidence presented in the recent “Memorandum for Ka Pouhana, CEO of the Office of Hawaiian Affairs regarding Hawai‘i as an independent State and the Impact it has on the Office of Hawaiian Affairs” by Dr. Keanu Sai.

After detailing the background of the war crime accusations, students wrote:

“In closing if you are able to refute the evidence in the Memo then assuredly the felonies—war crimes—have not been committed. But if you are not able to refute the evidence, then beginning on November 28, 2014, Hawaiian Independence Day, La Ku‘oko‘a, which has been celebrated since 1843, the United States Flag will no longer be raised over the Hawaiian flag from that day forth. We demand that the Hawaiian flag shall be raised first and be last taken down each day. The occupying United States flag shall be on a separate flag pole of exact same height with the flag flown as well at the same height. If no flag pole is provided for the U.S. flag it shall not be raised until one is provided by the University of Hawai‘i at Hilo and Hawai‘i Community College at no cost to the students. The none refute of evidence means that all State of Hawai‘i officials and employees, as well as We/Students are compelled to comply with Hawaii Kingdom Law and the law of occupation.”

Big Island Video News: Students Take Down American Flags at the University of Hawai‘i

Big Island Video News reported: On Monday, a group of students and activists took down the American flag flying at main entrance of the University of Hawai‘i at Hilo, instead raising the Hawaiian flag that was beneath it. The action was related to what they say is the continued illegal occupation of the Hawaiian Kingdom by the United States. The American flag that was taken down was folded and handed over to university administrators. The group then went over to do the same thing at the flag pole of Hawai‘i Community College in Hilo. While there, they encountered security.

This video was shot by David Lakota. He and fellow participant Gene Tamashiro spoke on camera afterwards. UH student La‘akea Caravalho explained more.

Big Island Video News asked the university for an official response to what occurred. We have yet to receive a statement.

UPDATE – The reasoning behind the action is evident in a letter written by students of the University of Hawai‘i to faculty and administrators, which began by saying the students have found the university has committed war crimes under the illegal occupation, specifically “pillaging” and “Americanization.” The letter relies on evidence presented in the recent “Memorandum for Ka Pouhana, CEO of the Office of Hawaiian Affairs regarding Hawai‘i as an independent State and the Impact it has on the Office of Hawaiian Affairs” by Dr. Keanu Sai.

After detailing the background of the war crime accusations, students wrote:

“In closing if you are able to refute the evidence in the Memo then assuredly the felonies—war crimes—have not been committed. But if you are not able to refute the evidence, then beginning on November 28, 2014, Hawaiian Independence Day, La Ku‘oko‘a, which has been celebrated since 1843, the United States Flag will no longer be raised over the Hawaiian flag from that day forth. We demand that the Hawaiian flag shall be raised first and be last taken down each day. The occupying United States flag shall be on a separate flag pole of exact same height with the flag flown as well at the same height. If no flag pole is provided for the U.S. flag it shall not be raised until one is provided by the University of Hawai‘i at Hilo and Hawai‘i Community College at no cost to the students. The none refute of evidence means that all State of Hawai‘i officials and employees, as well as We/Students are compelled to comply with Hawaii Kingdom Law and the law of occupation.”

OHA Ka Wai Ola – Civic clubs gather for convention

The Office of Hawaiian Affairs’ Ka Wai Ola newspaper had the following article in its Kēkēmapa (December) 2014 edition.

Ka Wai Ola 1The continuity of the Hawaiian Kingdom as an independent and sovereign state became the official position of the Association of Hawaiian Civic Clubs during its 55th annual convention on Moku o Keawe (Hawai‘i Island) Oct. 26-Nov. 2.

Adopted on a vote of 126-92, Resolution 14-28 was one of nearly 50 resolutions adopted by the grassroots organization, whose foundation was laid in 1918 by Prince Jonah Kuhiō Kalaniana‘ole.

“These sort of acknowledgments, I think, really are good,” said Soulee Stroud, the association’s outgoing pelekikena (president), in a post convention interview.

Ka Wai Ola 2

The idea that the Hawaiian Kingdom continues to exist has been gaining followers throughout the Hawaiian community as modern scholarship and education shed more light on the illegal overthrow, so-called “annexation” of Hawai‘i via joint resolution of Congress, and a statehood ballot that, according to modern scholars of international law, failed to conform to the letter of international law.

Support for the resolution was immediately buoyed by a letter of congratulations from the Royal Order of Kamehameha I, for “taking the courageous step to publicly announce its position that the Kingdom of Hawai‘i continues to exist,” a position the Royal Order of Kamehameha I proclaimed in 1995.

The AHCC, an officially nonpartisan organization known historically for conservative leanings, has seen a shift in recent years with the adoption of a number of progressive resolutions, including a resolution supporting marriage equality in 2013.

Among the resolutions passed at this year’s convention, held at the Waikoloa Beach Marriott Resort & Spa, were:

  • 14-18 – Strongly supporting the establishment of statewide, regulated medical marijuana dispensaries
  • 14-19 – Strongly urging the state to fully implement and fund the Justice Reinvestment Initiative before planning for prison expansion
  • 14-35 – Urging all Hawaiian civic club members, OHA and the larger Hawai‘i community “to honor and respect the strong political stance of our kupuna who signed their names” on the petition opposing annexation of Hawai‘i to the U.S. in 1897.

Among the most debated resolutions adopted was 14-34, urging creation of a task force, including civic club members, to be appointed by the governor and Legislature, to study the relocation of the Spirit of Lili‘uokalani statue of Queen Lili‘uokalani, from its location between ‘Iolani Palace and the state Capitol.

The idea of moving the statue – interchanging its location with the Eternal Flame memorial on Beretania Street, was debated at the state Legislature in February as Senate Bill 2505 as part of a plan to turn the walkway behind the Capitol into Memorial Mall. The bill also called for a working group to create a monument to former Hawaiian rulers to be placed with the statue. The majority of written testimony, including that of the AHCC, was strongly opposed and the bill was deferred. A companion House Bill did not advance.

New officers

In their biennial election of officers, delegates chose first vice president Annelle Amaral as their pelekikena.

Ka Wai Ola 3

Amaral, of the Waikīkī Hawaiian Civic Club, was elected by majority vote in a three-person race with Leimomi Khan, president of Kalihi- Pālama HCC and a past president of the AHCC, and Skippy Ioane, president of Hui Pū Laka HCC.

“Braddah Skippy” Ioane, whose nomination, like Khan’s, was made on the convention floor, energized the delegation with a populist speech calling for change delivered in pidgin.

“I tell you guys straight up. Us as a people, we no more respect,” said Ioane. “We gotta adjust da vehicle, because da Model T … cannot compete on da freeway. You know what I mean? You going get ticketed for impeding progress.”

Hailama Farden, of Kuini Pi‘olani HCC, was elected first vice president; Daniel Naho‘opi‘i, of Maunalua Hawaiian Civic Club, and president of AHCC’s O‘ahu Council, was elected second vice president; and Paul Richards, Hawaiian Civic Club of Waimānalo, was elected treasurer.

Meanwhile, the late H.K. Bruss Keppeler, a longtime member and past AHCC president, slack key master Rev. Dennis Kamakahi and master Hawaiian feather work artist Aunty Paulette Kahalepuna were among those lovingly remembered during a tearful Hali‘a Aloha ceremony as ‘ohana and fellow club members brought offerings of oli and lei that were draped upon an ‘ōhi‘a lehua tree.

Activities during the week included trips to sacred sites, like Mauna Kea, the piko of the firstborn island of Wäkea and Papa according to Hawaiian cosmology, and Ahu a ‘Umi Heiau, the shrine of the island’s 16th-century ruler ‘Umi a Liloa.

Stroud, whose membership spans more than two decades, says he’ll remain involved in the AHCC as immediate past president and anticipates being involved in the nation-building process, possibly as a delegate to a Hawaiian convention in 2015.

A longtime supporter of the civic clubs, OHA was a sponsor of AHCC’s 55th annual convention. In the days leading up to the November general election, the convention also served as the site of a debate of OHA trustee candidates. Hosted by AHCC in partnership with OHA, the debate was streamed live on oha.org.

Mary Alice Ka‘iulani Milham is a freelance kanaka writer. A former newspaper reporter and columnist from California’s Central Coast, she lives in Mākaha, O‘ahu.

Countries Visiting HK Blog since October 29, 2014

Since October 29, 2014, there have been 211,171 visits from the following domains: .com (Commercial), .net (Networks), .cn (Peoples Republic of China), .de (Germany), .br (Brazil), .edu (Educational), .eu (European Union), .mil (United States military), .ru (Russia), and .tr (Turkey). The domain .com and .net include internet users from other countries who don’t use their country’s domain name. The two largest domain names in the world are .com and .net, with .com at 107,043,593 registered domains (example hawaii.rr.com), and .net at 15,008,510 registered domain names (example, secureserver.net). For a list of countries that .com and .net users come from visit “173 Countries Visit Hawaiian Kingdom Blog.”

Of particular interest is that the U.S. military, China and Russia are visiting the blog.

Country Domains 2014

The

OHA Trustees’ Legal Counsel Robert Klein Advises Board to Commit a Crime

The Office of Information Practices’s (OIP) investigation and conclusion that the Board of Trustees (BOT) of the Office of Hawaiian Affairs (OHA) violated the Sunshine Law effectively voided the BOT’s May 9, 2014 letter to U.S. Secretary of State John Kerry rescinding OHA’s CEO Dr. Kamana‘opono Crabbe’s May 5, 2014 letter to the Secretary seeking clarification on the legal status of the Hawaiian Kingdom under international law.

OHA Letter May 9, 2014

At the center of the controversy was whether or not the BOT violated the Sunshine Law, which according to the OIP Guide to the Sunshine Law for State and County Boards, “the intent of the Sunshine Law is to open up governmental processes to public scrutiny and participation by requiring state and county boards to conduct their business as openly as possible. The Legislature expressly declared that ‘it is the policy of this State that the formation and conduct of public policy—the discussions, deliberation, decisions, and actions of governmental agencies—shall be conducted as openly as possible.’”

The BOT attempted to justify their actions to rescind by taking the position that there was no Board meeting in Washington, D.C., that would have come under the scrutiny of the Sunshine Law. According to the OIP, “OHA’s argument is that the OHA Board’s decision to rescind the Crabbe Letter did not require a meeting, because the Crabbe Letter had no legal effect and the Rescission Letter was consistent with previously adopted OHA policy.”

It is unimaginable how the BOT could have construed Dr. Crabbe’s Letter as being inconsistent with OHA policy, when he was merely seeking information in order to inform the Trustees regarding policy. Dr. Crabbe’s Letter opened with, “As the Chief Executive Officer of the Office of Hawaiian Affairs, being a governmental agency of the State of Hawai‘i, the law places on me, as a fiduciary, strict standards of diligence, responsibility and honesty. My executive staff, as public officials, carry out the policies and directives of the Trustees of the Office of Hawaiian Affairs in the service of the Native Hawaiian community. We are responsible to take care, through all lawful means, that we apply the best skills and diligence in the servicing of this community. It is in this capacity and in the interest of the Office of Hawaiian Affairs I am submitting this communication and formal request.”

After Dr. Crabbe explained the situation and circumstances that led him to seek clarification on the legal status of the Hawaiian Kingdom under international law, he concluded, “While I await the opinion from the Office of Legal Counsel, I will be requesting approval from the Trustees of the Office of Hawaiian Affairs that we refrain from pursuing a Native Hawaiian governing entity until we can confirm that the Hawaiian Kingdom, as an independent sovereign State, does not continue to exist under international law and that we, as individuals, have not incurred any criminal liability in this pursuit.”

OHA did hold a meeting in Washington, D.C., on May 9, 2014, where Dr. Crabbe could have made his request to the Trustees as stated in his letter, but instead the Trustees held a closed meeting that did not include Dr. Crabbe. In this meeting, not all of the Trustees were in Washington, D.C., but some were still in Hawai‘i.

The meeting was a haphazard mix of emails, telephone conversations and face-to-face conversations amongst the Trustees, which concluded Dr. Crabbe’s Letter to be “void as an ultra vires act.” This resulted in another letter, with OHA’s letterhead, sent to Secretary Kerry rescinding Dr. Crabbe’s Letter where all nine Trustees provided their signatures. This so-called letter to rescind clearly showed that the action taken by the Trustees was a Board matter and therefore subject to the scrutiny of the Sunshine Law. Since the OIP concluded that the meeting was illegal, anything stemming from an illegal meeting is “void,” which includes the Trustees decision that concluded Dr. Crabbe’s Letter was “void as an ultra vires act.” In other words, the only valid act by OHA in these circumstances is Dr. Crabbe’s May 5 letter to Secretary Kerry.

OHA Trustees Dan Ahuna and Hulu Lindsey removed their names from the May 9 letter after conferring with Dr. Crabbe and both concurred that he was authorized to send his letter to Secretary Kerry to seek clarifications.

The other violation of the Sunshine Law was when the Trustees refused to accept oral testimony on an agenda item of a BOT meeting on May 19, 2014 in Honolulu where the Trustees were going into closed session to discuss the fate of Dr. Crabbe and his letter to Secretary Kerry. It was stated on the agenda that the BOT would go into executive session for “Consultation with Board Counsel Robert G. Klein re: questions and issues pertaining to the Board’s powers and duties with respect to Contract Number 2744, Chief Executive Officer, Dr. Kamana‘opono Crabbe, and to consider appropriate action with respect to the conduct of Dr. Crabbe.”

According to the minutes of that meeting, attorney Dexter Kaiama, stated to the BOT:

Dexter_Kaiama“The Sunshine Law states that any meeting held by the Trustees is required to allow public community testimony. He respectfully submits that failure to allow public testimony prior to going into executive session would be a violation of the Sunshine Laws. He is aware that OHA is in receipt of an OIP complaint regarding its May 9, 2014, letter signed by the Board of Trustees. The complaint questions the appropriateness of the actions taken by the Trustees at that time. In order to keep with the spirit of the law, he offers that no executive session be taken regarding item II.A. relating to Dr. Kamana‘opono Crabbe. The letter is inextricably intertwined with the actions the Board seeks to discuss this morning concerning Dr. Kamana‘opono Crabbe. If those actions of May 9th violate Sunshine Laws then these additional actions may also be in violation. He asks that no action take place until the Office of Information Practices completes its investigation.”

Former Hawai‘i Supreme Court Justice Robert G. Klein, who is retained by the BOT as their legal counsel, responded by stating:

Robert_Klein“the Board is entitled to go into executive session on this matter without public comment because this is purely an executive session matter. With respect to the letter it is irrelevant to the decision to go into executive session inasmuch as this meeting has been duly and properly noticed for the purposes of the agenda item. Due to the fact that there is no public portion of the meeting it is not necessary to take public comment. He respectfully disagrees with attorney Kaiama and advises the Board that it is free to go into executive session without public comment.”

In light of the OIP’s findings, the advise given to the BOT at this meeting by their legal counsel was not only bad advise, but it was Klein’s legal advise for the BOT to violate the Sunshine Law, which carries a punishment of up to a year in prison, a fine, and removal from the Board. It is not clear whether the BOT consulted Klein during their “unlawful” meeting in Washington, D.C., but he was clearly consulted during the Board meeting in Honolulu on May 19, 2014 as reflected in the minutes. If he was consulted in Washington, D.C., he again gave advice to violate the Sunshine Law in light of the OIP’s investigation. As a former Hawai‘i Supreme Court Justice, Klein cannot claim ignorance of the Sunshine Law and it would appear to be a case of legal malpractice at the very least.

The attorney that gave the best legal advice at the Honolulu meeting was Mr. Kaiama, but the Trustees didn’t listen when they should have.

Office of Informational Practices Concludes Office of Hawaiian Affairs Violated Sunshine Law

An opinion published by the State of Hawai‘i Lieutenant Governor’s Office’s Office of Information Practices (OIP) dated November 7, 2014, concluded that the Trustees of the Office of Hawaiian Affairs violated the Sunshine Law. Willful violation of the Sunshine Law is a misdemeanor. Hawai‘i misdemeanors are crimes that carry a maximum sentence of no more than one year imprisonment and a fine not exceeding $2,000, and removal from the Board. The opinion was authored by OIP Staff Attorney, Jennifer Z. Brooks.

Dr.-Kamana’opono-Crabbe-OHAThe opinion stems from a letter by OHA CEO Dr. Kamana‘opono Crabbe to U.S. Secretary of State John Kerry requesting answers to the following questions.

• First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?

• Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?

• Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?

• Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?”

After the letter was sent, the OHA Trustees lashed out at Dr. Crabbe and sought to terminate him for simply asking the questions. This action prompted massive support for Dr. Crabbe amongst the Hawaiian community, which ultimately led to the investigation by the OIP.

1107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_11107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_21107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_31107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_41107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_51107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_61107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_71107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_81107 OIP Op. Ltr. no. F15-02 Oiwi, Preza, Freitas, Smith, Perreira, Munroe re Polling Board Members_ Testimony on Executive Session Items_Page_9