Category Archives: National

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

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

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

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

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

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

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

According to the Lorenzo Court it based its denial of the motion to dismiss because it “was incumbent on Defendant to present evidence supporting his claim. Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”

The Lorenzo Court’s standard of review in determining whether the Hawaiian Kingdom exists as a State placed the burden of proof on Lorenzo as the defendant. The Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, clarified this evidentiary burden. The Supreme Court stated:

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] “exists as a state in accordance with recognized attributes of a state’s sovereign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.

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

The Lorenzo Court, however, did acknowledge that its “rationale is open to question in light of international law.” Whether or not the Hawaiian Kingdom “exists as a state in accordance with recognized attributes of a state’s sovereign nature,” international law is supposed to be applied. By placing the burden of proof on the defendant, the Lorenzo Court did not apply international law. Because international law provides for the presumption of the continuity of the State despite the overthrow of its government by another State, it shifts the burden of proof and what is to be proven.

According to Judge Crawford, there “is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is no, or no effective, government,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” “If one were to speak about a presumption of continuity,” explains Professor Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] “exists as a state in accordance with recognized attributes of a state’s foreign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the Kingdom of Hawai‘i “exists as a state in accordance with recognized attributes of a state’s foreign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.

What is profound is that if the appellate court applied international law in its decision, it would have confirmed the continued existence of the Hawaiian Kingdom as a State and ruled in favor of Lorenzo. International law recognizes the difference between the State and its government, and that there is a presumption that the State continues to exist despite its government being militarily overthrown. As Judge James Crawford explained, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” In other words, all Lorenzo needed to provide was evidence that the Hawaiian Kingdom “did” exist as a State, which would then shift the burden on the prosecution to provide rebuttable evidence that the United States extinguished the Hawaiian State in accordance with recognized modes of extinction under international law, a treaty of cession.

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

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

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

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

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

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

Setting the Record Straight on Descendants of Kamehameha I and Heirs to the Hawaiian Crown

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There is a common misunderstanding that if you are a direct descendent of Kamehameha I today you are an heir to the throne as well as an heir to the Crown Lands. This is incorrect.

It is true that Kamehameha I had many wives. According to the second revised edition of the book Kamehameha’s Children Today by Charles Ahlo, Rubellite Kawena Kinney Johson, and Jerry Walker, Kamehameha I had 30 wives, 18 of whom had 35 children. The other 12 did not have any children. Of the 18 was Keōpūolani who gave birth to Liholiho, who later succeeded to the throne as Kamehameha II in 1819, Kauikeaouli, who succeeded to the throne as Kamehameha III in 1824, and a daughter, Nahiʻenaʻena who died in 1836 while her brother Kamehameha III was King. Of all the wives, she had the highest chiefly rank and she was acknowledged as such by Kamehameha’s Chiefs.

The Kamehameha extended family was not the leadership of the kingdom. Rather, the leadership of the Island of Kingdom of Hawai‘i was comprised of Kamehameha as its Ali‘i Nui (King) and his most trusted Chiefs, which included Kalaʻimamahu, Chief of Hāmākua, Ke‘eaumoku, Chief of Kona, Ka‘iana, Chief of Puna, and Kame‘eiamoku, Chief of Kohala. After defeating the Maui Kingdom of Kalanikupule in 1795 and acquiring the Kaua‘i Kingdom from Kaumuali‘i in 1810, the leadership of Chiefs increased due to the acquisition of additional islands of his expanded domain. These Chiefs extended from Kamehameha’s Chiefs, while the Kamehameha Dynasty extended from the children of Keōpūolani and not from the other 17 wives who had children. The decision of which wife’s children were to be the heirs to the throne was not the decision for Kamehameha I to make on his own. It had to be sanctioned by his Council of Chiefs. Without the support of his Chiefs, Kamehameha’s kingdom would be fractured after his death.

As Kuykendal wrote, “The desertion of Kaʻiana [in 1795], the revolt of Nāmākēhā [in 1796], and Kaumuialiʻi’s dalliance with the Russians [in 1817] were overt acts showing clearly how unwillingly some of the chiefs submitted to his authority.” The Russian explorer, Lieutenant Otto von Kotzebue, who arrived in the islands in 1816 and 1817, was made aware of Kamehameha’s concerns of the longevity of his kingdom. In his 1821 book, Voyage of Discovery, Kotzebue states of a proposed division of the kingdom with Kalanimoku having O‘ahu, Ke‘eaumoku having Maui, Kaumuali‘i retaining Kaua‘i, and Liholiho, Kamehameha’s heir, having Hawai‘i island. Kamehameha took the necessary steps to prevent such breakup from happening. According to Kamakau, Kamehameha sought to strengthen the British alliance because he believed the British supported his dynasty. He was correct.

On May 18, 1824, Kamehameha II arrived in London with the Hawaiian royal retinue that included Mataio Kekūanāo‘a husband to Kamehameha II’s sister, Kīnaʻu. Before the King could meet with King George IV he and his wife Queen Kalama died of measles. High Chief Boki was the highest ranking Chief and he and the royal retinue met with King George IV. According Kekuanao‘a:

The King then asked Boki what was the business on which you and your King came to this country?

Then Boki declared to him the reason of our sailing to Great Britain We have come to confirm the words which Kamehameha I gave in charge to Vancouver thus—“Go back and tell King George to watch over me and my whole Kingdom. I acknowledge him as my landlord and myself as tenant (or him as superior and I inferior). Should the foreigners of any other nation come to take possesion of my lands, then let him help me.”

And when King George had heard he thus said to Boki, “I have heard these words, I will attend to the evils from without. The evils within your Kingdom it is not for me to regard; they are with yourselves. Return and say to the King, to Kaahumanu and to Kalaimoku, I will watch over your country, I will not take possession of it for mine, but I will watch over it, lest evils should come from others to the Kingdom. I therefore will watch over him agreeably to those ancient words.”

Kamehameha II’s body arrived in Lahaina on May 4, 1825. After the funeral and time of mourning had passed, the Council of Chiefs met on June 6, 1824, in Honolulu with Lord Byron and the British Consul. It was confirmed that Liholiho’s brother, Kauikeaouli, was to be Kamehameha III, but since he was only eleven years old, Ka‘ahumanu would continue to serve as Regent and Kalanimōkū as Premier. Kalanimōkū addressed the Council “setting forth the defects of many of their laws and customs, particularly the reversion of lands” to a new King for redistribution and assignment. The chiefs collectively agreed to forgo this ancient custom, and the lands were maintained in the hands of the original tenants in chief and their successors, subject to reversion only in times of treason. Lord Byron was invited to address the Council, and without violating his specific orders of non-intervention in the political affairs of the kingdom, he prepared eight recommendations on paper and presented it to the chiefs for their consideration.

1. That the king be head of the people.

2. That all the chiefs swear allegiance.

3. That the lands descend in hereditary succession.

4. That taxes be established to support the king.

5. That no man’s life be taken except by consent of the king or regent and twelve chiefs.

6. That the king or regent grant pardons at all times.

7. That all the people be free and not bound to one chief.

8. That a port duty be laid on all foreign vessels.

Lord Byron introduced the fundamental principles of British governance to the chiefs and set them on a course of national consolidation and uniformity. His suggestions referred “to the form of government, and the respective and relative rights of the king, chiefs, and people, and to the tenure of lands,” but not to a uniform code of laws. Since the death of Kamehameha in 1819, the Hawaiian Kingdom, as a feudal autocracy, had no uniform system of laws systematically applied throughout the islands. Rather it fell on each of the tenants in chief and their designated vassals to be both lawmaker and arbiter over their own particular tenants living on the granted lands from the King.

When the Hawaiian Kingdom was transformed into a constitutional monarchy, written laws became the legal foundation for the kingdom. Confirming that only the children of Keōpūolani were the heirs to the Throne, the 1840 Constitution stated:

The origin of the present government, and system of polity, is as follows: KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the management of the landed property. Wherefore, there was not formerly, and is not now any person who could or can convey away the smallest portion of land without consent of the one who had, or has the direction of the kingdom.

These are the persons who have had the direction of it from that time down, Kamehameha II, Kaahumanu I, and at the present time Kamehameha III. These persons have had the direction of the kingdom down to the present time, and all documents written by them, and no others are the documents of the kingdom.

The kingdom is permanently confirmed to Kamehameha III, and his heirs, and his heir shall be the person whom he and the chiefs shall appoint, during his life time, but should there be no appointment, then the decision shall rest with the chiefs and house of Representatives.

In the 1852 Constitution, Article 25 states:

The crown is hereby permanently confirmed to His Majesty Kamehameha III during his life, and to his successor. The successor shall be the person whom the King and the House of Nobles shall appoint and publicly proclaim as such, during the King’s life; but should there be no such appointment and proclamation, then the successor shall be chosen by the House of Nobles and the House of Representatives in joint ballot.

In the 1864 Constitution, Article 22 states:

The Crown is hereby permanently confirmed to His Majesty Kamehameha V, and to the Heirs of His body lawfully begotten, and to their lawful Descendants in a direct line; failing whom, the Crown shall descend to Her Royal Highness the Princess Victoria Kamamalu Kaahumanu, and their heirs of her body, lawfully begotten, and their lawful descendants in a direct line. The Succession shall be to the senior male child, and to the heirs of his body; failing a male child, the succession shall be to the senior female child, and the heirs of her body. In case there is no heir as above provided, then the successor shall be the person whom the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim as such during the King’s life; but should there be no appointment and proclamation, and the Throne should become vacant, then the Cabinet Council, immediately after the occurring of such vacancy, shall cause a meeting of the Legislative Assembly, who shall elect by ballot some native Aliʻi of the Kingdom as Successor to the Throne; and the Successor so elected shall become a new Stirps for a Royal Family; and the succession from the Sovereign thus elected, shall be regulated by the same law as the present Royal Family.

According to this constitutional provision, the Kamehameha Dynasty would continue if Kamehameha V had “Heirs of His body lawfully begotten.” The term “lawfully begotten” is a child born in wedlock. A child born out of wedlock was called a bastard child. Kamehameha was not married, and he had no children. In that case, his sister Princess Victoria Kamamalu Kaahumanu would be the successor to the Throne should Kamehameha V not “appoint [a successor to the throne] with the consent of the Nobles, and publicly proclaim as such during the King’s life.” She never married before her death on May 29, 1866, leaving the successor to the Throne to be decided by Kamehameha V. The are some who claim that the Princess had a child. Whether this is true or not, it does not matter because the Constitution states that a child shall be “lawfully begotten,” which can only happen if the child is born in wedlock. The Princess was never married.

When Kamehameha V died on December 11, 1872, he did not appoint a successor and receive confirmation by the Nobles. This was precisely why the Cabinet of Kamehameha V, serving as a Council of Regency, stated to the Legislative Assembly on January 8, 1873, when it was convened in extraordinary session to elect a successor to the throne:

His Majesty left no Heirs.

Her late Royal Highness the Princess Victoria Kamamalu Kaahumanu, to whom in the event of the death of His late Majesty without heirs, the Constitution declared that the Throne should descend, died, also without heirs, on the twenty-ninth day of May, in the year of Our Lord One Thousand Eight Hundred and Sixty-six.

His late Majesty did not appoint any successor in the mode set forth in the Constitution, with the consent of the Nobles or make a Proclamation thereof during his life. There having been no such appointment or Proclamation, the Throne became vacant, and the Cabinet Council immediately thereupon considered the form of the Constitution in such case made and provided.

There is no doubt that there are descendants of Kamehameha I from his 17 wives, other than Keōpūolani. Ahlo, Johnson and Walkerʻs book Kamehameha’s Children Today reveals that. There is no dispute.

These descendants, however, which include Ahlo, Johnson and Walker, are not a part of the Kamehameha Dynasty that headed the government from 1791, after the death of High Chief Keōua, until the death of Kamehameha V in 1872. Those children and grandchildren that headed the Hawaiian government as an absolute monarchy to a constitutional monarchy were Kamehameha II, Kamehameha III, Kamehameha IV and Kamehameha V. The Kamehameha Dynasty was succeeded by the Lunalilo Dynasty in 1873, and the Kalākaua Dynasty replaced the Lunalilo Dynasty in 1874. In 1922, the Kalākaua Dynasty ended with the passing of Prince Jonah Kuhio Kalaniana‘ole.

The Lunalilo and Kalākaua Dynasties descended from Kamehameha Iʻs Chiefs, which are part of the nobility class of the Hawaiian Kingdom. The genealogies published throughout 1896 in the Maka‘anana newspapers reveal the families of the nobility class. To access these genealogies go to The Three Estates of the Hawaiian Kingdom.

Presently the Hawaiian Crown is Not Inheritable but Rather Subject to an Election by the Legislative Assembly after the U.S. Occupation Comes to an End

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During this time of the rising of the national consciousness of the Hawaiian Kingdom after over a century of the war crime of denationalization through Americanization, it is important for Hawaiian subjects to understand the laws of the country as they existed prior to the overthrow of the Hawaiian Kingdom government on January 17, 1893. Especially the laws that apply to the Hawaiian Crown.

There is a common misunderstanding that the Hawaiian Crown is hereditary. This is not an accurate understanding of Hawaiian constitutional law. Hereditary descent is a part of Hawaiian law, but it works in tandem and within the limits of Hawaiian constitutional law.

Individuals claiming Hawaiian Titles of Nobility, which include Abigail Kawananakoa, Owana Salazar, Mahealani Ahsing, Windy Lorenzo, Ruth Bolomet, just to name a few, are not who they claim. There is a distinction between Titles of Nobility and noble lineage. The former derives from a sitting Monarch, while the latter is a status by virtue of chiefly genealogy called mo‘o ku‘auhau. This is not to say that these individuals are not of noble lineage. Rather the titles they claim are self-declared that have no basis under Hawaiian constitutional law.

Only a sitting Monarch can nominate an heir apparent to the Throne, which will then require confirmation by the Nobles in the Legislative Assembly. The history of Hawaiian Monarchs began with the Kamehameha Dynasty that ended in 1873, followed by the Lunalilo Dynasty that ended in 1874, and then finally the Kalākaua Dynasty that ended in 1922.

In the latter part of the eighteenth century, the northern archipelago of islands consisted of four distinct kingdoms: Hawai‘i Island under Kamehameha I; Maui Island with its dependent islands of Lāna‘i and Kaho‘olawe under Kahekili; Kaua‘i Islalnd and its dependent island of Ni‘ihau under Kā‘eo; and O‘ahu Island with its dependent island of Molokaʻi under Kahahana. Kamehameha, King of Hawai‘i Island, consolidated the four kingdoms establishing the Kingdom of the Sandwich Islands in 1810, which later became the Kingdom of the Hawaiian Islands. In 1829, the Kingdom of the Sandwich Islands came to be known as the Kingdom of the Hawaiian Islands. By 1840, the Kingdom of the Hawaiian Islands came to be known as the Hawaiian Kingdom, a constitutional monarchy.

The Kamehameha Dynasty

Kamehameha I governed his kingdom according to ancient tradition and strict religious protocol. In 1794, after voluntarily ceding the island Kingdom of Hawai‘i to Great Britain, 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.

In 1795, Kamehameha conquered the Maui Kingdom, and in 1810 the Kaua‘i Kingdom became a vassal under Kamehameha through voluntary cession by its King, Kaumuali‘i. By 1840 all the Island Kingdoms were consolidated under the Hawaiian Kingdom. According to the 1840 Constitution:

The origin of the present government, and system of polity, is as follows: KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the management of the landed property. Wherefore, there was not formerly, and is not now any person who could or can convey away the smallest portion of land without consent of the one who had, or has the direction of the kingdom.

These are the persons who have had the direction of it from that time down, Kamehameha II, Kaahumanu I, and at the present time Kamehameha III. These persons have had the direction of the kingdom down to the present time, and all documents written by them, and no others are the documents of the kingdom.

The kingdom is permanently confirmed to Kamehameha III, and his heirs, and his heir shall be the person whom he and the chiefs shall appoint, during his life time, but should there be no appointment, then the decision shall rest with the chiefs and house of Representatives.

On June 14, 1852, a new Constitution was granted by Kamehameha III confirming the successorship of the Crown. Article 25 provides:

The crown is hereby permanently confirmed to His Majesty Kamehameha III during his life, and to his successor. The successor shall be the person whom the King and the House of Nobles shall appoint and publicly proclaim as such, during the King’s life; but should there be no such appointment and proclamation, then the successor shall be chosen by the House of Nobles and the House of Representatives in joint ballot.

Article 25 is tempered by Article 26 that states, “No person shall ever sit upon the throne who has been convicted of an infamous crime, or who is insane or an idiot. No person shall ever succeed to the crown, unless he be a descendant of the aboriginal stock of Aliʻis.” It would appear that Kamehameha III was aware of King George III’s insanity while the Hawaiian Kingdom was a British Protectorate and it no doubt informed Hawaiian governance.

Alexander Liholiho, the adopted son of the King, was confirmed by the House of Nobles as successor on April 6, 1853, in accordance with Article 25 of the 1852 Constitution. In 1854, after the death of the King, he succeeded to the throne as Kamehameha IV. Kamehameha IV was the biological son of Mataio Kekuūanaoʻa and Kīnaʻu, who was the half-sister to Kamehameha III. The confirmation process ensured that Alexander Liholiho was not “convicted of an infamous crime, or who is insane or an idiot.”

On November 30, 1863, Kamehameha IV died unexpectedly, and left the Kingdom without a successor. On the same day, the Kuhina Nui—Premier, Victoria Kamāmalu, in Privy Council, proclaimed Lot Kapuaiwa to be the successor to the throne in accordance with Article 25 of the Constitution of 1852, and the Nobles confirmed him. Lot Kapuaiwa was thereafter called Kamehameha V. Victoria Kamāmalu, as Kuhina Nui, provided continuity for the office of the Crown pending the appointment and confirmation of Lot Kapuaiwa.

Article 47, of the 1852 Constitution provided that “whenever the throne shall become vacant by reason of the King’s death the Kuhina Nui shall perform all the duties incumbent on the King, and shall have and exercise all the powers, which by this Constitution are vested in the King.” This provision prevented the House of Nobles and the House of Representives to choose a successor by joint ballot.

On August 20, 1864, Kamehameha V proclaimed the 1864 Constitution. The office of Kuhina Nui—Premier was removed and replaced by the Cabinet Council. Article 22 provided the successorship of the Hawaiian Crown:

The Crown is hereby permanently confirmed to His Majesty Kamehameha V, and to the Heirs of His body lawfully begotten, and to their lawful Descendants in a direct line; failing whom, the Crown shall descend to Her Royal Highness the Princess Victoria Kamamalu Kaahumanu, and their heirs of her body, lawfully begotten, and their lawful descendants in a direct line. The Succession shall be to the senior male child, and to the heirs of his body; failing a male child, the succession shall be to the senior female child, and the heirs of her body. In case there is no heir as above provided, then the successor shall be the person whom the Sovereign shall appoint wiht the consent of the Nobles, and publicly proclaim as such during the King’s life; but should there be no appointment and proclamation, and the Throne should become vacant, then the Cabinet Council, immediately after the occurring of such vacancy, shall cause a meeting of the Legislative Assembly, who shall elect by ballot some native Aliʻi of the Kingdom as Successor to the Throne; and the Successor so elected shall become a new Stirps for a Royal Family; and the succession from the Sovereign thus elected, shall be regulated by the same law as the present Royal Family.

The constraints upon the Crown was reiterated in Article 25, which stated, “No person shall ever sit upon the Throne, who has been convicted of any infamous crime, or who is insane, or an idiot.”

On December 11, 1872, Kamehameha V died without naming a successor to the throne. This caused the Cabinet Council to serve temporarily as a Council of Regency that serves in the absence of a Monarch. According to Article 22 of the 1864 Constitution, “the Cabinet Council, immediately after the occurring of such vacancy, shall cause a meeting of the Legislative Assembly, who shall elect by ballot some native Aliʻi of the Kingdom as Successor to the Throne.” Article 33 also provides that “the Cabinet Council at the time of such decease shall be a Council of Regency, until the Legislative Assembly, which shall be called immediately, may be assembled.”

The Lunalilo Dynasty

On January 8, 1873, the Cabinet serving as a Council of Regency convened the Legislative Assembly into Extraordinary Session. In its address to the Legislature, the Cabinet stated:

Documents delivered to your President, contain official evidence of the decease of His late Majesty Kamehameha V. His earthly existence terminated at Iolani Palace, in Honolulu, in the Island of Oahu, upon the forty-second anniversary of his birth, being the eleventh day of December, in the year of Our Lord One Thousand Eight Hundred and Seventy-two.

His Majesty left no Heirs.

Her late Royal Highness the Princess Victoria Kamamalu Kaahumanu, to whom in the event of the death of His late Majesty without heirs, the Constitution declared that the Throne should descend, died, also without heirs, on the twenty-ninth day of May, in the year of Our Lord One Thousand Eight Hundred and Sixty-six.

His late Majesty did not appoint any successor in the mode set forth in the Constitution, with the consent of the Nobles or make a Proclamation thereof during his life. There having been no such appointment or Proclamation, the Throne became vacant, and the Cabinet Council immediately thereupon considered the form of the Constitution in such case made and provided, and

Ordered—That a meeting of the Legislative Assembly be caused to be holden at the Court House in Honolulu, on Wednesday which will be the eighth day of January, A.D. 1873, at 12 o’clock noon; and of this order all Members of the Legislative Assembly will take notice and govern themselves accordingly.

By virtue of this Order you have been assembled, to elect by ballot, some native Aliʻi of this Kingdom as Successor to the Throne. Your present authority is limited to this duty, but the newly elected Sovereign may require your services after his accession.

The Members of the Cabinet Council devoutly ask the blessings of Heaven upon your deliberations and public acts. They have appreciated the responsibility resting upon them, and have striven to maintain tranquility and order, and, especially, to guard your proceedings against improper interference.

Acknowledging the obligation to preserve all the rights, honors and dignities appertaining to the Throne, and to transmit them unimpaired to a new Sovereign, it will become their duty, upon his accession, to surrender to him the authority conferred upon them by his late lamented predecessor.

The Legislative Assembly, empowered to elect a new monarch under the 1864 Constitution, elected William Charles Lunalilo on January 8, 1873. Lunalilo was not a descendant of Kamehameha I but his mother, Kekāuluohi, was the Queen Consort to Kamehameha I and Kamehameha II. His father was High Chief Charles Kana‘ina.

The Kalākaua Dynasty

The Hawaiian Kingdom’s first elected King died a year later without a named successor, and the Legislature was again convened by Lunaliloʻs Cabinet Council and elected David Kalākaua as King on February 12, 1874. On February 14, 1874, King Kalākaua appointed his younger brother, Prince William Pitt Leleiōhoku, his successor, and was confirmed by the Nobles. On April 10, 1877, Leleiōhoku died. The next day Kalākaua appointed his sister, Princess Lili‘uokalani, as heir-apparent and received confirmation from the Nobles.

When Kalākaua was elected, a new royal lineage replaced the Kamehameha and Lunalilo Dynasty. Kalākaua declared royal titles upon: Princess Lili‘uokalani, Queen Kapiʻolani, Princess Virginia Kapoʻoloku Poʻomaikelani, Princess Kinoiki, Princess Victoria Kawekiu Kaiʻulani Lunalilo Kalaninuiahilapalapa, Prince David Kawānanakoa, Prince Edward Abner Keliʻiahonui, and Prince Jonah Kūhiō Kalanianaʻole comprised the new royal lineage. Everyone with the exception of Princess Lili‘uokalani, as heir-apparent, were heirs to the Hawaiian Throne. To move from an heir to heir-apparent is when the Monarch nominates you as successor among the other heirs, and the nominee receives confirmation from the Nobles.

When Kalākaua embarked on his world tour on January 20, 1881, Princess Lili‘uokalani served as Regent, together with the Cabinet Council. Her second time to serve as Regent with the Cabinet Council occurred when Kalākaua departed for San Francisco on November 25, 1890. Kalākaua died in San Francisco on January 20, 1891, and his body returned to Honolulu on the 29th. That day Princess Liliʻuokalani succeeded to the Throne.

The legislative and judicial branches of government had been compromised by the revolt in 1887. The Nobles became an elected body of men whose allegiance was to the foreign population, and three of the justices of the Supreme Court, including the Chief Justice, participated in the revolt by drafting the 1887 constitution. The Queen was prevented from legally confirming her niece, Victoria Kawekiu Kaiʻulani Lunalilo Kalaninuiahilapalapa, as heir-apparent, because the Nobles had not been in the Legislative Assembly since 1887. Ka‘iulani died at the age of 23 on March 6, 1899.

Up to her death on November 11, 1917, Lili‘uokalani was prevented from naming a successor to the Throne and receiving confirmation by the Nobles. The last of the Kalākaua Dynasty to die was Prince Jonah Kūhiō Kalanianaʻole on January 7, 1922, which ended the Kalākaua Dynasty. Royal titles are not inheriteable.

The Kamehameha, Lunalilo and Kalākaua Dynasties came to a close. There are no heirs to the Throne, and the Legislative Assembly will have to be reconvened, by the Council of Regency, after the occupation comes to an end to “elect by ballot some native Aliʻi of the Kingdom as Successor to the Throne.” A “native Aliʻi” will be drawn from those who are a direct descendant of the genealogies provided by the Board of Genealogists that were published in 1896 in the Ka Maka‘ainana newspaper. To access these genealogies go to The Three Estates of the Hawaiian Kingdom.

Direct descendants of these genealogies comprise the Nobility class of the Hawaiian Kingdom and would be qualified to be elected by the Legislative Assembly after the Nobles determine that the candidate has not “been convicted of any infamous crime, or who is insane, or an idiot.”

Until such time the Council of Regency serves in the absence of the Monarch.

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

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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.

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

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

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

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

Clarifying the Presumption of Continuity of the Hawaiian Kingdom—the 800-pound Gorilla in the Room

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There appears to be some confusion as to who needs to prove that the Hawaiian Kingdom—the 800-pound Gorilla in the room continues to exist as a sovereign and independent State despite its government being unlawfully overthrown on January 17, 1893, by the United States military and occupied for over a century.

As Professor Quincy Wright asserts “international law distinguishes between a government and the state it governs.” Professor Sheldon Cohen also states that the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.” This raises an important point that the overthrow of the Hawaiian government did not affect, in the least, the continuity of the Hawaiian Kingdom as a State, being a “legal person” under international law. As Professor Ian Brownlie explains:

Thus after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.

Under international law, there exists a legal principle that when a government of an internationally recognized State is overthrown after a military invasion by another State and is occupied, the invaded State is “presumed” to continue to exist. This principle is called the presumption of the continuity of a State.

To presume is a verb that means to suppose or to take for granted “based on evidence.” To assume is to suppose or take for granted “without evidence.” According to Merriam-Webster e-dictionary, “‘Presume’ is the word to use if you’re making an informed guess based on reasonable evidence. If you’re making a guess based on little or no evidence, the word to use is ‘assume.’”

According to Judge James Crawford from the International Court of Justice, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Paragraph 6-1 of the United States Army Field Manual 6-27, also states:

Military occupation of [another State’s] territory establishes a special relationship between the government of the Occupying Power, the occupied government, and the civilian population of the territory occupied. The body of international law governing occupations recognizes that the Occupying Power is responsible for the general administration of the occupied territory and its civilian inhabitants, including the maintenance of public order or safety.

“If one were to speak about a presumption of continuity,” explains Professor Matthew Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” A legal title under international law would be a treaty between the Hawaiian Kingdom and the United States where the Hawaiian State would merge with the State of the United States. In other words, the question is not whether the Hawaiian Kingdom continues to exist, but rather can “the party opposing that continuity” establish factual evidence, e.g. treaty, that it doesn’t continue to exist. No evidence that it doesn’t exist, the Hawaiian Kingdom continues to exist as a State under international law.

The “presumption of the continuity of a State” is similar to the “presumption of innocence.” A person on trial does not have the burden to prove their innocence. Rather, the prosecutor has to prove beyond all reasonable doubt the guilt of the person. Without proof of guilt, the person remains innocent. In international law, a recognized sovereign and independent State does not have the burden to prove it continues be a State after being belligerently occupied for over a century. Rather, the opposing State has to prove with evidence under international law that the State was extinguished. Absent the evidence, the State continues to exist.

In Hawaiian Kingdom v. Biden, the United States has not provided any “valid demonstration of legal title, or sovereignty,” that the Hawaiian Kingdom was extinguished as a State under international law. Rather it claimed that “the United States annexed Hawaii in 1898 and Hawaii entered the union as a state in 1959.” Both the 1898 Joint Resolution of annexation and the 1959 Hawai‘i Admission Act are municipal laws and, according to the U.S. Supreme Court, in The Apollon, these laws cannot “extend beyond its territory except so far as regards its citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.” The U.S. Supreme Court also stated, in United States v. Curtiss-Wright Export Corp., that “neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.”

In 1988, the U.S. Department of Justice, in a legal opinion titled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” it stated that “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The Department of Justice also concluded, “It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

Anecdotally, the Hawaiian Kingdom is the 800-pound Gorilla whose home is the Hawaiian Islands. On January 16, 1893, his home was invaded by Uncle Sam of the United States and on the following day he was put in chains. Uncle Sam made it appear that the Gorilla was dead and he was the new owner of the Hawaiian Islands. The Gorilla, however, was still alive. When Queen Lili‘uokalani, who spoke on behalf of the Gorilla, died on November 11, 1917, the Gorilla fell asleep. 80 years later on February 28, 1997, the Gorilla woke up after the Regency was established as the successor to Queen Lili‘uokalani. As the Gorilla is walking around in the islands, and at the Permanent Court of Arbitration from 1999-2001, in the United States District Court in Hawaiian Kingdom v. Biden since May 20, 2021, and the United Nations Human Rights Council on March 22, 2022, people are saying, “I thought you were dead!” No, the Gorilla never died, he was just sleeping for 80 years because he couldn’t speak. In the Hawaiian Kingdom v. Biden case, District Court Judge Leslie Kobayashi is having a conversation with the 800-pound Gorilla.

The 800-pound Gorilla in the Federal Court: Hawaiian Kingdom v. Biden

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Since these proceedings were initiated 11 months ago with the filing of the initial complaint on May 20, 2021, Hawaiian Kingdom v. Biden, and then the filing of the amended complaint on August 11, 2021, there was always the “800-pound gorilla in the room” that the Court did not want to directly address until last week.

That gorilla was the continued existence of the Hawaiian Kingdom as a sovereign and independent State despite the unlawful overthrow of the Hawaiian government by the United States on January 17, 1893, and being belligerently occupied by the United States for over a century. If the gorilla exists, the Court can only exist as an Article II Court under international law operating in an occupied country. If the gorilla doesn’t exist, then the Court continues to exist as an Article III Court under United States law.

The amicus brief filed by the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective explained why the Court’s present status as an Article III Court is unlawful because it is situated within the territory of the Hawaiian Kingdom and not the United States. As such, it must transform itself into an Article II Occupation Court.

Neither Magistrate Judge Rom Trader nor District Judge Leslie Kobayashi directly addressed the 800-pound gorilla until Judge Kobayashi issued the first Order on March 30, 2022, partially granting a motion to dismiss filed by Nervell, as the Swedish Honorary Consul to Hawai‘i. In her Order Judge Kobayashi stated:

Plaintiff argues that “[b]efore the Court can address the substance of [Nervell’s] motion to dismiss it must first transform itself into an Article II Court…” Plaintiff bases this argument on the proposition that the Hawaiian Kingdom is a sovereign and independent state. This district has uniformly rejected such a proposition. “‘[T]here is no factual (or legal basis) for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.’” Plaintiff’s request for the Court to “transform itself into an Article II Court” is therefore denied.

The Court admits that it could “transform itself into an Article II Court” but for “concluding that the [Hawaiian] Kingdom” does not exist as a State it could not. Conversely, if the Hawaiian Kingdom continues to exist as a State, the Court will then “transform itself into an Article II Court.”

The Court later noted that “Plaintiff asserts its claim against Nervell in his official capacity as Honorary Consul of Sweden to Hawai‘i. Nervell argues that, because Plaintiff’s claim is against him in his official capacity, the Court does not possess jurisdiction over him, pursuant to the Vienna Convention. The Court agrees.” The Hawaiian Kingdom at no time in these proceedings denied Sweden’s appointment of Defendant Nervell as the Honorary Consul of Sweden to Hawai‘i. Rather, the Hawaiian Kingdom’s position was that Defendant Nervell held an inchoate title as Honorary Consul because he did not receive his exequatur from the Hawaiian Foreign Ministry by virtue of Article XII of the 1852 Hawaiian-Swedish Treaty. Without accreditation by the Hawaiian Kingdom, Defendant Nervell cannot claim any “official capacity” under the Vienna Convention. Also, Defendant Nervell never provided evidence that the 1852 Hawaiian-Swedish Treaty was replaced by the 1793 United States-Swedish Treaty.

On March 31, 2022, the Court issued its second Order Denying Plaintiff’s Motion for Judicial Notice. The basis of the denial was the same in its previous Order that “‘there is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,” and, therefore, “the Ninth Circuit, this district court, and Hawai‘i state courts have all held that the laws of the United States and the State of Hawai‘i apply to all individuals in this State.”

Conversely, if the Hawaiian Kingdom continues to exist as a State, all “laws of the United States and the State of Hawai‘i” do not apply within the territory of the Hawaiian Kingdom. Judge Kobayashi initiated a legal dialogue with the 800-pound gorilla—the Hawaiian Kingdom.

The two Orders are not final, and according to the Federal Rules of Civil Procedure, the Hawaiian Kingdom, as the gorilla in this case, is given an opportunity to respond to the position taken by Judge Kobayashi that the gorilla doesn’t exist.

Last night, April 7, 2022, the Hawaiian Kingdom filed a Motion for Reconsideration that explained why both Orders violate international law and the American doctrine of separation of powers.

In both Orders, Judge Kobayashi, by a general verdict, denies the existence of the Hawaiian Kingdom as a sovereign and independent State. She cites U.S. Bank Tr., N.A. v. Fonoti, but provided no evidence or reasoning of the Court’s rejection of the continuity of the Hawaiian Kingdom as a State. The Fonoti decision directly cites a State of Hawai‘i case—State v. French, where the State of Hawai‘i appeals court stated, “this particular kind of claim was rejected in State v. Lorenzo, which held that presently 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.”

But Judge Kobayashi’s Order omitted the word “presently” that precedes “there is no factual (or legal basis) for concluding that the Hawaiian Kingdom exists as a state.” This would be misleading because it would appear that the Order was conclusive by merely leaving the word “presently” out of the Order. In State of Hawai‘i v. Lorenzo, the appellate court explained its use of the word “presently,” because “it was incumbent on Defendant to present evidence supporting his claim,” and that “Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”

In other words, the reason why the Lorenzo Court used “presently” was because Lorenzo did not “present evidence supporting his claim.” The Lorenzo court did not foreclose the question but rather provided, what it saw at the time, instruction for the Court to arrive at the conclusion that the Hawaiian Kingdom continues to exist as a State based on evidence provided to the Court. The Lorenzo Court placed the burden of proof that the Hawaiian Kingdom continues to exist on the Defendant. The Lorenzo Court, however, acknowledged that its “rationale is open to question in light of 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. 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 no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” In other words, the Hawaiian Kingdom would continue to exist as a State despite the American military overthrow of the Hawaiian government on January 17, 1893.

According to Professor Craven, “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 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.”

The “presumption of continuity of a State” is similar to the “presumption of innocence.” A person on trial does not have the burden to prove their innocence. Rather, the prosecutor has to prove beyond all reasonable doubt the guilt of the person. Without proof of guilt, the person remains innocent. In international law, a recognized sovereign and independent State does not have the burden to prove it continues be a State after being belligerently occupied for over a century. Rather, the opposing State has to prove with evidence under international law that the State was extinguished. Absent the evidence, the State continues to exist.

Therefore, the Lorenzo Court’s placing of the burden on the Defendant is misplaced because international law places the burden “on the party opposing that continuity to establish the facts substantiating its rebuttal.” The only fact the Defendant would need to provide is evidence that the United States recognized the Hawaiian Kingdom as a State, which would be the 1849 Treaty of Friendship, Commerce and Navigation. Judge Kobayashi provided no rebuttable evidence of facts in its Orders that the Hawaiian Kingdom was extinguished in accordance with international law. She just stated, without evidence, there is no 800-pound gorilla, but yet she’s in dialogue with that gorilla.

In these proceedings, the Hawaiian Kingdom provided factual evidence of the Hawaiian Kingdom’s continued existence where the Permanent Court Arbitration, in Larsen v. Hawaiian Kingdom (1999-2001), acknowledged the continued existence of the Hawaiian Kingdom as a State.

Additional factual basis of “continuity” includes the delivering of an oral statement to the United Nations Human Rights Council on March 22, 2022, by Dr. David Keanu Sai, as Minister of Foreign Affairs ad interim. Dr. Sai was accredited by the Office of the United Nations High Commissioner for Human Rights for his statement. Dr. Sai stated to the Human Rights Council, in Geneva, Switzerland:

The International Association of Democratic Lawyers and the American Association of Jurists call the attention of the Council to human rights violations in the Hawaiian Islands. My name is Dr. David Keanu Sai, and I am the Minister of Foreign Affairs ad interim for the Hawaiian Kingdom. I also served as lead agent for the Hawaiian Kingdom at the Permanent Court of Arbitration from 1999-2001 where the Court acknowledged the continued existence of my country as a sovereign and independent State.

The Hawaiian Kingdom was invaded by the United States on 16 January 1893, which began its century long occupation to serve its military interests. Currently, there are 118 military sites throughout the islands and the city of Honolulu serves as the headquarters for the Indo-Pacific Combatant Command.

For the past century, the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory, which has denied Hawaiian subjects their right of internal self-determination by prohibiting them to freely access their own laws and administrative policies, which has led to the violations of their human rights, starting with the right to health, education and to choose their political leadership.

The United States, who is a member State of the Human Rights Council, did not object to Dr. Sai’s statement that “the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory,” thereby, acquiescing to the Hawaiian Kingdom’s continued existence as a State and the United States commission of the war crime of usurpation of sovereignty.

According to the International Court of Justice, in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstance such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” According to Professor MacGibbon, under international law, the “function of acquiescence may be equated with that of consent,” whereby the “primary purpose of acquiescence is evidential; but its value lies mainly in the fact that it serves as a form of recognition of legality and condonation of illegality and provides a criterion which is both objective and practical.”

The failure of the United States to disagree or object to the Hawaiian Kingdom being acknowledged as a State by the Permanent Court of Arbitration, and its failure to disagree or object to the statement to the Human Rights Council regarding the war crime of usurpation of sovereignty are official acts by the United States under customary international law. War crimes can only be committed in an international armed conflict between two or more States, and, therefore, the United States acquiescence are official acts that bind Judge Kobayashi. The U.S. Supreme Court, in Williams v. Suffolk Insurance Co., stated, “when the executive branch of the government, which is charged with our foreign relations assumes a fact it is conclusive on the judicial department.”

United States President John Tyler, by letter of Secretary of State John C. Calhoun on July 6, 1844, to Hawaiian officials, recognized the Hawaiian Kingdom as a sovereign and independent State. And on December 20, 1849, the United States entered into a Treaty of Friendship, Commerce and Navigation with the Hawaiian Kingdom and maintained a Legation (Embassy) in Honolulu and Consulates throughout the islands.

In its filings, the United States has not provided any rebuttable evidence, whether factual or legal, that the Hawaiian Kingdom was extinguished as a State under international law. Rather it claimed that “the United States annexed Hawaii in 1898 and Hawaii entered the union as a state in 1959.” Both the 1898 Joint Resolution of annexation and the 1959 Hawai‘i Admission Act are municipal laws and, according to the U.S. Supreme Court, in The Apollon, these laws cannot “extend beyond its territory except so far as regards its citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.”

The U.S. Supreme Court also stated, in United States v. Curtiss-Wright Export Corp., that “neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” In 1988, the U.S. Department of Justice, in a legal opinion titled, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” it stated that “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The Department of Justice also concluded, “It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

Under international law, the imposition of United States municipal laws violates the territorial integrity of the Hawaiian Kingdom and would constitute the war crime of usurpation of sovereignty under international law. According to Professor Schabas, the war crime of usurpation of sovereignty is where the “perpetrator imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.” In these proceedings, the United States’ reliance on its municipal laws is an admission of the war crime of usurpation of sovereignty.

On the topic of separation of powers, the U.S. Supreme Court, in Airports Auth. v. Citizens for Noise Abatement, explained, “the structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed.” Professor Merrill explains that “because every federal office must be located ‘in’ one of the three branches, each office is subject to whatever specific constitutional limitations apply to action by its branch.”

In United States v. Curtiss-Wright Export Corp., the U.S. Supreme Court stated, “the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” Like the Congress, the judicial branch “is powerless to invade” the executive branch. The judicial branch is the arbiter of facts and law. It is not charged with foreign relations.

Judge Kobayashi’s two Orders not only violate international law but also the American doctrine of the separation of powers between the three branches of government. The President cannot act as a judge and a judge cannot act as a President who is in charge of foreign relations. In other words, Judge Kobayashi’s two Orders declaring the Hawaiian Kingdom does not exist without providing any evidence is a violation of the separation of powers doctrine. She’s supposed to provide evidence that the executive branch, not the judicial branch, extinguished the Hawaiian Kingdom as a State under international law.

The Hawaiian Kingdom, as the 800-pound gorilla, has now placed the burden on Judge Kobayashi to show evidence of a factual or legal basis that it doesn’t exist. Under Rule 52(c) of the Federal Rules of Civil Procedure, the Court is required to write “findings of fact and conclusions of law” as to why the gorilla doesn’t exist or why the gorilla does exist. If the gorilla does exist, Judge Kobayashi will have to change the two Orders and transform the Court into an Article II Occupation Court that administers Hawaiian Kingdom law and the international law of occupation.

Ka Wai Ola: Living Into the UCC’s 1993 Apology to the Native Hawaiian People

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Along with the International Association of Democratic Lawyers and the American Association of Jurists/Asociación Americana de Juristas – accredited non-government organizations to the UN Human Rights Council, AHEC fully supports the National Lawyers Guild’s 2019 resolution that calls upon the U.S. to immediately comply with international humanitarian law and condemns the prolonged and illegal occupation of the Hawaiian Islands. AHEC specifically:

• Condemns the unlawful presence of the U.S. Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands.

• Calls for the U.S. to comply with international humanitarian law and administer the laws in the Hawaiian Kingdom as an occupied state.

• Calls on the legal and human rights community to view the U.S. presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.

• Supports the Hawaiian Council of Regency, which represented the Hawaiian Kingdom in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawaiʻi and its counties comply with international humanitarian law for the administration of the occupying state. On May 20, 2021, the Hawaiian Kingdom filed a case in the U.S. federal court: Hawaiian Kingdom v. Biden, et al.

• Calls on all United Nations member and non-member states to ensure that the U.S. complies with international humanitarian law and brings to an end the unlawful occupation of the Hawaiian Islands.

War Crimes: Russian Invasion of Ukraine and the American Invasion of the Hawaiian Kingdom

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Russia’s invasion of Ukraine has highlighted certain rules or norms of international law. These rules of international law include the independence of countries or States that gives rise to sovereignty, which is defined as the “supreme, absolute, and uncontrollable power by which an independent state is governed.” The terms country and State are interchangeable. Ukraine became an independent State on August 24, 1991, after the breakup of the Soviet Union. The Hawaiian Kingdom became an independent State on November 28, 1843.

In the 1928 Island of Palmas case (Netherlands – United States of America), the sole-arbitrator, Max Huber, stated, “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”

This rule springs another rule of international law, which is the duty of non-intervention by other States in a State’s internal affairs because of a State’s territorial integrity. These rules are foundational for the international system to operate, and because of this they are considered peremptory norms, also called jus cogens, that cannot be derogated or disparaged. To violate these rules is an internationally wrongful act.

When Russia invaded Ukraine it violated these rules of international law and transformed the state of affairs from a state of peace to a state of war. According to Judge Christopher Greenwood, “Traditional international law was based upon a rigid distinction between the state of peace and the state of war.” This separation provides the proper context by which certain rules of international law would or would not apply. The laws or war, which is also called international humanitarian law, are not applicable in a state of peace. Inherent in the rules of international humanitarian law is the co-existence of two States being that of the invading State and that of the invaded State.

War is regulated by international humanitarian law called the 1907 Hague Regulations, the 1949 Geneva Conventions, as well as customary international law. Since the latter part of the nineteenth century, violations of international humanitarian law could amount to war crimes, which are committed by individuals acting on behalf of a State and not by the government of the State as a whole. In the words of the International Military Tribunal, “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” War crimes have no statute of limitations.

While hostilities are taking place between Russian and Ukrainian forces there are certain rules of international humanitarian that would amount to war crimes committed against the civilian population. These war crimes include:

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; and

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

It would appear from recent news coverage that Russian forces are committing war crimes against the civilian population of Ukraine who pose no threat to the invading forces. The Chief Prosecutor of the International Criminal Court (ICC) has recently launched an investigation of war crimes committed by Russian forces. The ICC Chief Prosecutor Karim Khan stated, “it is clear…directing attacks against civilians and civilian objects amounts to a war crime.” Although Russia and Ukraine are not State parties to the Rome Statute that would have authorized the ICC to investigate war crimes, the ICC was prompted to investigate by a referral of thirty-nine States that are State parties to the Rome Statute.

Should hostilities cease and certain portions of the territory of Ukraine should come under the effective control of Russian forces, international humanitarian law transforms the situation into belligerent occupation and the occupying State must continue to protect the civilian population who reside within the occupied territory. Should Russia be in effective control of territory, it will trigger the law of occupation where Russian forces are obligated to administer the laws of the Ukraine. This rule of international law would continue until the occupation comes to an end when Russian forces leave Ukrainian territory. As professor Ian Brownlie wrote:

Thus after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.”

War crimes committed during belligerent occupation against the civilian population include what are called “grave breaches” that are listed under Article 147 of the 1949 Fourth Geneva Convention.

Grave breaches…shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Along with the list of war crimes as “grave breaches,” there are war crimes that are listed under customary international law. In chapter three of the ebook Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, Professor William Schabas provides a list of war crimes, under customary international law, committed in the Hawaiian Kingdom. These include:

war crime of usurpation of sovereignty during occupation;

war crime of compulsory enlistment;

war crime of denationalization;

war crime of pillage;

war crime of confiscation or destruction of property;

war crime of deprivation of fair and regular trial;

war crime of deporting civilians of the occupied territory; and

war crime of transferring populations into an occupied territory.

When United States forces invaded the Hawaiian Kingdom on January 16, 1893, they initiated the state of war between the United States and the Hawaiian Kingdom. Hostilities would only last until the following day when Queen Lili‘uokalani signed a conditional surrender to the United States. She stated:

I, Lili‘uokalani, by the Grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.

That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said Provisional Government.

Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest, and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representative and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

Done at Honolulu this 17th day of January, A.D. 1893.

Lili‘uokalani, R.
Samuel Parker, Minister of Foreign Affairs.
Wm. H. Cornwell, Minister of Finance.
John. F. Colburn, Minister of the Interior.
A.P. Peterson, Attorney General.

After completing an investigation, President Grover Cleveland notified the Congress:

And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer, Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war, unless made either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperilled lives and property of citizens of the United States. But there is no pretense of any such consent on the part of the Government of the Queen, which at the time was undisputed and was both the de factor and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it. There is little basis for the pretense that such forces were landed for the security of American life and property. If so, they would have been stationed in the vicinity of such property and so as to protect it, instead of at a distance and so as to command the Hawaiian Government building and palace. Admiral Skerrett, the officer in command of our naval force on the Pacific station, has frankly stated that in his opinion the location of the troops was inadvisable if they were landed for the protection of American citizens whose residences and places of business, as well as the legation and consulate, were in a distant part of the city, but the location selected was a wise one if the forces were landed for the purpose of supporting the provisional government. If any peril to life and property calling for any such martial array had existed, Great Britain and other foreign powers interested would not have been behind the United States in activity to protect their citizens. But they made no sign in that direction. When these armed men were landed, the city of Honolulu was in its customary orderly and peaceful condition. There was no symptom of riot or disturbance in any quarter. Men, women, and children were about the streets as usual, and nothing varied the ordinary routine or disturbed the ordinary tranquillity, except the landing of the Boston’s marines and their march through the town to the quarters assigned them. Indeed, the fact that after having called for the landing of the United States forces on the plea of danger to life and property the Committee of Safety themselves requested [US] Minister [John Stevens] to postpone action, exposed the untruthfulness of their representations of present peril to life and property. The peril they saw was an anticipation growing out of guilty intentions on their part and something which, though not then existing, they knew would certainly follow their attempt to overthrow the Government of the Queen without the aid of the United States forces.

From this date, the United States was in effective control of Hawaiian territory and international humanitarian law at the time obligated the United States to administer the laws of the Hawaiian Kingdom. Instead of complying with international humanitarian law, the United States unilaterally seized the Hawaiian Islands and transformed it into a military outpost to protect the United States from its adversaries. Since 1898, the United States has committed the war crime of “usurpation of sovereignty,” which is the unlawful imposition of American municipal laws over the territory of the Hawaiian Kingdom. This imposition of American laws is what caused the commission of the other war crimes identified by Professor Schabas.

Russian President Vladimir Putin claimed Russian troops were being sent into Ukraine to protect people who were subjected to bullying and genocide and that Russia was aiming for the “demilitarization and de-Nazification” of Ukraine. The BBC reported, “There has been no genocide in Ukraine: it is a vibrant democracy, led by a president who is Jewish.”

It would appear that Russia’s justification is not credible, just as the United States justification for the invasion of the Hawaiian Kingdom was not credible as well. The difference, however, is that President Cleveland, who was President of the invading force, completed a presidential investigation and acknowledged that the invasion was “illegal” under international law. Consequently, there is no need for an investigation into the invasion and unlawful overthrow of the Government of the Hawaiian Kingdom. Rather, the issue is the United States non-compliance with international humanitarian law for over a century, which has led to the commission of war crimes and human rights violations.

The restored government of the Hawaiian Kingdom, the Council of Regency, brought this to the attention by a diplomatic note to the foreign embassies accredited to the United Nations in New York City. This information was also brought to the attention of the foreign embassies in both New York City and Geneva by a joint letter from the International Association of Democratic Lawyers and the American Association of Jurists—Asociación Americana de Juristas, both of whom have consultative status with the United Nations Human Rights Council.