On August 17, 2021, the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) filed a motion for permission to file an amicus curiae brief with the U.S. District Court for the District of Hawai‘i in support of the Hawaiian Kingdom’s complaint against U.S. President Biden and others for violations of international law, the commission of war crimes, and human rights violations in its prolonged occupation of the Hawaiian Kingdom. The motion was filed after the Hawaiian Kingdom filed its Amended Complaint on August 11, 2021.
An amicus curiae is “one (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.” The amicus brief was attached to the motion for the court to consider. In its request for permission, the IADL-NLG-WPLC stated:
1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.
2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.
In its complaint, the Hawaiian Kingdom takes the position that the Court must first transform itself into an Article II Court for it to have lawful jurisdiction because it is located in the territory of an occupied State, which is outside of the United States. According to Professor Bederman, in his law article Article II Courts,
What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his consequent war-making authority.
An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France, and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “all offenses against the laws and usages of war, all offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, and all offenses under the laws of the occupied territory or any part thereof.”
Currently, the U.S. District Court is called an Article III Court. This designation refers to Article III of the U.S. Constitution, which is the judicial branch of the United States headed by a Supreme Court over Circuit Courts of Appeal, and District Courts established in the States of the Federal Union. The authority of the District Court for Hawai‘i comes from section 9(a) of the 1959 Hawai‘i Statehood Act that established the State of Hawai‘i.
In its complaint, the Hawaiian Kingdom explains that Congress cannot establish a U.S. District Court in a foreign country, the Hawaiian Kingdom, that has been under a prolonged occupation by the United States for over a century. The Congress can only enact laws that apply within the United States and not outside of it. According to a 1988 legal opinion by the U.S. Department of Justice regarding the annexation of Hawai‘i by a congressional joint resolution, “there is a serious question whether Congress has the authority either to assert jurisdiction over an expanded territorial sea for purposes of international law or to assert the United States’ sovereignty over it.”
On September 30, 2021, U.S. Magistrate Judge Rom Trader issued an Order granting permission for the IADL-NLG-WPLC to formally file their amicus curiae brief in order to aid the Court in its decision on transforming itself into an Article II Occupation Court. Judge Trader’s Order stated, “The Court, having carefully reviewed the Motion and attached brief, records and files in this case, and the applicable law, GRANTS the Motion.” The IADL-NLG-WPLC filed their amicus brief on October 6, 2021. In its brief, the IADL-NLG-WPLC stated:
The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.
In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article VI, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress.
The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.
The significance of this Order cannot be underestimated. The Court is seriously considering transforming itself into an Article II Occupation Court.
Law comprises a set of rules that regulate the behavior of persons, to include businesses and organizations, within a country. In a constitutional monarchy, laws reflect the national consciousness of its subjects because they directly enact legislation for the country as members of the legislative branch, which are then signed into law by the Monarch.
In 1840, the Hawaiian Kingdom was transformed from an absolute monarchy to a constitutional monarchy under a written constitution. This constitution was succeeded by the 1852 constitution, and then by the 1864 constitution, which is the present constitution of the country. According to the 1864 constitution there are three Estates in the Kingdom: the Monarch, the Nobility, and the People. The Monarch appoints Nobles to the Legislative Assembly, but their number cannot exceed 20. Representatives are elected by the People, which always outnumbered the Nobles in the Legislative Assembly where both Estates sat together in a unicameral legislative body. Prior to 1864, there were two separate houses in the legislature, the House of Nobles and the House of Representatives.
On June 21, 1850, both Houses of the Hawaiian Legislature enacted the Penal Code for the Hawaiian Kingdom. Under Hawaiian law, imprisonments for all crimes are at hard labor. Hawaiian crimes are felonies if the imprisonment is two years or more, or misdemeanors if imprisonment is less than two years. Like the United Kingdom, there is no statute of limitations for Hawaiian crimes.
Under Chapter 37 was the misdemeanor crime of “Common Nuisance.” Section 1 states, “The offense of common nuisance is the endangering of the public personal safety or health. … As, for example, the…spreading or endangering the spreading of…infectious disease.” Endangering the spreading is placing the “public personal safety or health at risk.” Section 9 and 10 provides for the punishment. “9. Whoever is guilty of the offense of common nuisance in the first degree…shall be punished by imprisonment at hard labor not more than six months, or by fine not exceeding five hundred dollars. 10. Whoever is guilty of the offense of common nuisance in the second degree…shall be punished by imprisonment at hard labor not more than two months, or by fine no exceeding twenty-five dollars.” According to the Penal Code, malice “includes the acting with a heedless, reckless disregard or gross negligence of the life or lives, the health or personal safety, or legal rights or privileges of another or others, many or few, known or unknown.”
In 1868, the Legislative Assembly enacted a statute directing the Judges of the Supreme Court to compile and revise the 1850 Penal Code. On April 3, 1869, the revised Penal Code came into effect and included thirty-six additional chapters, and the common nuisance chapter was changed from Chapter 37 to Chapter 36. Spreading an infectious disease is a serious crime under Hawaiian law.
According to §12 of the Hawaiian Civil Code, “One of the most effectual ways of discovering the true meaning of the law…is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.” The single most threat to the aboriginal Hawaiian population was the introduction of infectious diseases that decimated the population. In 1848, Governor Kekuanāo‘a made the following report that was published in Ka Elele Hawaii newspaper. The report was in Hawaiian, but an English translation is provided by Awaiaulu, Inc.
Regarding Illness in Hilo. Regards to you, the Elele. All of the students of this school are afflicted with the contagious smallpox. Previously, some individuals had coughs. They did not have whooping cough. At church service yesterday, there was one boy with whooping cough. Some had fevers, perhaps two, almost exactly like the illness of 1847. Many are somewhat fatigued. Different sick ones may have frequent cramps or headaches.
Malo is carrying out his duties among the folks of this area. In a nearby land area, there are perhaps 80 who are doing required public service. 18 of them have died since the contagious smallpox got here. Most were strong and able-bodied.
Illness at Lahaina. Lahaina has illness much like what is seen here in Honolulu. There is smallpox and whooping cough. Earlier, all the children had whooping cough, and afterwards, all the adults had already contracted it, and we heard that some have died.
Illness at Molokaʻi. Most of the people here are very ill. Some have died, and many more have the coughing illness. There are many sick folk at Hālawa. Someone dies there nearly every day. Few individuals went to church services on the last Sabbath. At services in the new month, there were none. There is no school at this time. All of the teachers are sick, as are most of the students. There have been no deaths among those who drank the medicine that we provided.
Illness at Honolulu. Here below is the letter from the Governor, M. Kekūanāoʻa, regarding those who died in the two week period from the 1st to the 15th of this November.
Fort of Honolulu. 18 November, 1848. Regards. I am reporting to you about the number those who died from Waikīkī to Moanalua in these past two weeks of November. Waikīkī, 7 dead. Honolulu area and Honolulu town, 271 dead. Kapālama, 7 dead. Kalihi, 24 dead. Moanalua, 7 dead.
You should publish this in the Elele Hawaii, and announce it in churches during services, which is all I have to say to you, with appreciation. M. Kekūanāoʻa.
If those numbers of the reported deaths are added up, it equals 380. And if you divide it by the 15 days, you get 25, that being the number of people who died each single day.
Illness at Waialua (Oʻahu). A letter from there states thus: Everyone here is ill, and some, if not ill, are recovering. Not many have actually died. There were perhaps ten that I heard of, and some of them had been infirm previously.
Extensive death has just hit here in Honolulu. Chiefs are dying, as are their people. Those of status great and small are entering the house of darkness. The wrongdoers and the righteous all end up falling.
This last Sabbath, Iakoba Malo, an attendant of Leleiōhoku, passed on. He was born on Hawaiʻi; he had always been a chiefs attendant, and was nearly 70 when he died. For many years he had been a servant of God, and appeared to be truly pious, steadfast to the oath he had made. It was never heard about him being in trouble, though he was connected to the royal circles, but did not get involved in pleasure seeking or wantonness because of where he resided. That was because his faith in Almighty God was sincere. He died with hope on God’s holy day. Smallpox and its resulting diarrhea were the causes of his death.
Here is another death: Mose Kekūāiwa, the son of Kekūanāoʻa and Kīnaʻu, died on the 24th of November; He was 19 years and four months old. He attended the Chiefs’ Children’s School for seven years, and mastered the English language. His body had been weakened previously by this illness, and when he contracted smallpox again, along with a cough, he passed on. How tragic is the death of the young!
Here is another: Ioana Kaʻiminaʻauao, the foster daughter of Kalama, wife of the king. She was three years and two days old. Kapaʻakea and Keohokālole were her actual parents. Liver failure was the cause of her death.
This as well: On the 19th of November, John Meek Jr. died, he being the firstborn of Captain J. Meek, and being 27 years old.
Because the printers have been ill, the Elele was not published at its usual time. Perhaps it will be published at its customary time in the future. Those who want a good paper should write articles for it. There are few who are writing articles; some have nearly abandoned this. Those who care about the Elele should give this careful consideration.
There is no doubt that Governor Kekuanāo‘a’s 1848 report on the carnage from disease and virus across the Hawaiian Islands influenced the legislators’ 1850 common nuisance criminal statute of “spreading or endangering the spreading of…infectious disease.” This led to the formation of the Hawaiian Board of Health and the establishment of the Queen’s Hospital that provided free healthcare for aboriginal Hawaiians throughout the Hawaiian Islands.
Like the smallpox virus in the Hawaiian Kingdom, COVID-19 is an infectious disease under Hawaiian law, which has risen to a level of a pandemic in the Hawaiian Islands and the world. The Hawaiian public personal safety and health has been directly impacted by the spreading of COVID-19 and the only “scientific” defenses to the virus are vaccinations, quarantine, masks, and social distancing. Yes, there is no Hawaiian law that mandates these COVID-19 defenses because this virus didn’t exist then, but the common nuisance law exists that includes COVID-19 as an infectious disease. These “scientific” defenses, however, is what prevents the “spreading or endangering the spreading of” COVID-19.
§7 of the Hawaiian Civil Code states, “individuals may, in all cases in which it is not expressly or impliedly prohibited, renounce what the law has established in their favor, when such renunciation does not affect the rights of others, and is not contrary to the public good.”
Don’t commit the Hawaiian crime of common nuisance. Stop spreading COVID-19. It’s the law.
As Hawai‘i’s people begin to awake to the reality of their country, the Hawaiian Kingdom, having been under an illegal and prolonged occupation by the United States since January 17, 1893, they have to contend with conflicting information on a daily basis. It is like walking down the hallway of a house in the dark. Every door that opens is someone telling “their” story with evidence “they” gathered that “they” say supports “their” conclusion. Which story is accurate and which story is not? There needs to be some sort of standard to discern fact from fiction whether it is about the Hawaiian Kingdom or COVID-19 that is in the Hawaiian Kingdom.
Stories are called anecdotes, and information that someone may use to tell the story could be anecdotal evidence. “Anecdotal Evidence is information you obtain from a subjective report, an observation, or some kind of example that may or may not be reliable. In addition, anecdotal evidence is not scientifically valid or representative of a larger group or of conditions in another location.” In academic research, anecdotal evidence is considered a fallacy. The anecdote is the story to be told and the evidence is selectively chosen by the storyteller to support the story. This is commonly referred to as “confirmation bias” or “cherry picking” because the storyteller would ignore evidence that would undermine the story being told.
Anecdotal evidence is on the opposite spectrum of science, which is “the intellectual and practical activity encompassing the systematic study of the structure and behavior of the physical and natural world through observation and experiment.” In political science, which is social science, it is “the systematic study of governance by the application of empirical and generally scientific methods of analysis. As traditionally defined and studied, political science examines the state and its organs and institutions.”
In both the hard sciences and the social sciences, there is a reliance on theory, which is an explanation of a set of known facts. A simple way to think of it is that the theory of football exists to explain the facts of a football game. Both sciences have a critical component called research and research relies on theories and evidence.
One of the ways to discern a person using anecdotal evidence from a person using scientific evidence is to first see their credentials, whether professional or academic, that would indicate that they have a particular expertise in the subject area. You should not prefer a golf coach to explain to you a football game. Second, does the person have published articles on the subject that has been peer-reviewed. This is very important because peer-review is a form of a vetting process that qualifies a person’s explanation and conclusions of a particular subject.
The way peer-review works is a journal’s editorial board will receive a manuscript that represents the author’s research and findings. If the manuscript satisfies the editorial board’s criteria of topic and form, the editorial board will seek out academics that are recognized as experts in certain fields that are covered in the manuscript. A peer-review journal can have up to 4 referees to review and provide comment on the manuscript. Peer-review is usually double blind where the referees do not know who the author is, and the author does not know who the referees are. All the author knows is that the referees are experts in certain fields that the editorial board reached out to.
After the reviews by the referees are submitted to the editorial board, the board will go over the comments made by the referees and determine whether the manuscript is suitable for publication. Some manuscripts would be rejected, while others would be conditionally accepted with adjustments as recommended by the referees. A manuscript based on anecdotal evidence would not be accepted for publication from the start.
In the case of the Hawaiian Kingdom, the vetting process was the Permanent Court of Arbitration (PCA), in Larsen v. Hawaiian Kingdom. Larsen sought to hold the government of the Hawaiian Kingdom legally accountable for allowing the unlawful imposition of American municipal laws over him that caused him to have an unfair trial and be subsequently incarcerated. However, before the PCA could form an arbitration tribunal to resolve the dispute, it had to ensure that the institution had jurisdiction or authority to do so in the first place.
Article 47 of the 1907 Hague Convention (PCA) only allows access to the PCA if one of the parties is a “State” recognized under international law. The proceedings were instituted on November 8, 1999, and after the PCA verified the Hawaiian Kingdom to be a “State” an arbitration tribunal was formed on June 9, 2000. The Secretariat of the PCA, also known as the International Bureau, served as a vetting institution, and after its due diligence in reviewing the evidence through the legal theory of international law, it concluded that the Hawaiian Kingdom is an independent State.
This finding by an intergovernmental institution, falsifies the storytellers using anecdotal evidence. Since then, academics have published peer-review journal articles and publications that speak to the Hawaiian Kingdom as a State in continuity that has been under a prolonged belligerent occupation by the United States since January 17, 1893.
In this time of the pandemic, it is crucial to distinguish anecdotal evidence from scientific evidence. Dr. Anthony Fauci is an expert in this field, and he does have the credentials. More importantly, Dr. Fauci has publications on the topic of COVID-19 in peer-review journals. If Dr. Fauci lived in nineteenth century, the Hawaiian Kingdom Government’s Board of Health would have relied on his opinions and recommendations regarding COVID-19 if it arrived in the Hawaiian Islands.
As an occupied State, international humanitarian law and the law of occupation mandate that the occupying State—the United States and its proxy the State of Hawai‘i must administer the laws of the Hawaiian Kingdom. Since the occupation is prolonged, which has now lasted for over a century, Hawaiian Kingdom laws needed to be brought up to date. This is what prompted the Council of Regency to decree, by proclamation on October 10, 2014, the provisional laws of the Hawaiian Kingdom.
Now, therefore, We, the acting Council of Regency of the Hawaiian Kingdom, serving in the absence of the Monarch and temporarily exercising the Royal Power of the Kingdom, do hereby acknowledge that acts necessary to peace and good order among the citizenry and residents of the Hawaiian Kingdom, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and persona, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding an actual, though unlawful government, but acts in furtherance or in support of rebellion or collaborating against the Hawaiian Kingdom, or intended to defeat the just rights of the citizenry and residents under the laws of the Hawaiian Kingdom, and other acts of like nature, must, in general, be regarded as invalid and void.
And, We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assemble, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.
Governor Ige to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019 in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency October 10, 2014 Proclamation that brings Hawaiian Kingdom laws up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to become familiar with the contents of the recent eBook published by the [Royal Commission of Inquiry] and its reports that comprehensively explain the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.
The following year, the International Association of Democratic Lawyers (IADL) passed a resolution dated February 7, 2021, that supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”
The United States and the State of Hawai‘i have not transformed themselves into an occupying government in order to provisionally administer Hawaiian Kingdom law. This is what prompted the filing of a complaint on May 20, 2020 with the United States District Court for the District of Hawai‘i in Hawaiian Kingdom v. Biden. The IADL and NLG filed a amicus brief in the case, and the proceedings led to the closure of the Czech Republic Consulate in Hawai‘i. If they had transformed themselves into an occupying government before the pandemic hit the Hawaiian Islands, Hawaiian quarantine regulations would have secured Hawai‘i’s borders.
Hawaiian Kingdom laws include the Hawaiian Penal Code, which makes the intentional spreading of an “infectious disease,” such as COVID-19, a felony crime.
1. The offense of common nuisance is the endangering of the public personal safety or health. As, for example, the…spreading or endangering the spreading of the small pox, or other infectious disease.
…
9. Whoever is guilty of the offense of common nuisance in the first degree, for which punishment is not otherwise expressly provided by statute, shall be punished by imprisonment at hard labor not more than six months, or by fine not exceeding five hundred dollars (inflation calculator in 1893 is $14,605.43 in 2020).
10. Whoever is guilty of the offense of common nuisance in the second degree, for which punishment is not otherwise expressly provided by statute, shall be punished by imprisonment at hard labor not more than two months, or by fine not exceeding twenty-five dollars (inflation calculator in 1893 is $730.27 in 2020).
To commit the crime of common nuisance in the first degree, the perpetrator had premeditation with a plan to spread the infectious disease of COVID-19. Second degree is where the perpetrator intended to spread the infectious disease of COVID-19 but had no plan to commit the spreading.
To combat the spreading of infectious diseases, the Hawaiian Kingdom Board of Health would utilize vaccines and quarantine as was the case with smallpox, or if there were no vaccines for an infectious disease such as measles, the defense would be quarantine, isolation and medical care. A vaccine for measles was not available until 1963.
Hawaiian Penal Code Chapter LIX—The Public Health
1. There shall be appointed by the King in privy council, upon nomination of the minister of the interior, a board of health for the kingdom, consisting of three persons, who shall serve during the King’s pleasure, and be charged with the general oversight and care of the public health.
2. It shall not be lawful for any foreigner, whether naturalized or otherwise, to practice in this kingdom as a physician or surgeon, for compensation or reward, unless he shall have first presented to the board of health, or to such examiners as said board may appoint for that purpose, satisfactory evidence of his professional qualifications and good moral character, and obtained a certificate of approval from said board, and a license from the minister of the interior. Any person violating the provisions of this section shall, upon conviction thereof, be liable to a penalty of one hundred dollars for each offense. (Civil Code, Section 279.)
3. Said board of health may appoint suitable agents in such localities as it may deem necessary, to carry into effect all regulations for the public health; and its shall hold such agents accountable for all moneys received and disbursed by them, on account of the public health, and also for the manner in which they may discharge their several duties. (Civil Code, Sec. 280.)
4. The board of health shall make such regulations respecting nuisances, sources of filth, and causes of sickness, within the respective districts of the kingdom, and on board of any vessels, as it shall judge necessary for the public health and safety. (Civil Code, Section 281.)
5. Said board shall also make such regulations as it may judge necessary for the public health and safety, respecting any articles which are capable of containing, or conveying any infection or contagion, or of creating any sickness, when such articles shall be brought into, or conveyed from any district, or into or from any vessel.
The Hawaiian Kingdom took public health very seriously given the devastating toll that infectious diseases took on the aboriginal Hawaiian population, whether smallpox, whooping cough, measles, or influenza. The Hawaiian crime of common nuisance cuts through any belief of Americanism that people have a choice to spread or not spread an infectious disease to the public. Some Americans claim that they have a personal right to decide whether to take the vaccine and/or not wear masks with complete disregard for the health of the public. They claim that they are sovereign citizens and government cannot take their liberties away to decide. THIS IS NOT AMERICA.
People that are not Hawaiian subjects are also subject to the crime of common nuisance. Section 1, Chapter III—Local Jurisdiction of Offenses states, “All persons, whether subjects of this kingdom, or citizens or subjects of any foreign state, government or country, are, while within the limits of this kingdom, subject to its laws, except so far as exception is made by the law of nations in respect to ambassadors or others.” And Chapter IV—Capacity and Responsibility for Offenses, states:
4. Any person acting under mental derangement, rendering him incompetent to discern the nature and criminality of an act done by him, shall not be subject to punishment thereof: Provided, however, that if any such person, while capable of discerning the nature and criminality of any act, entertained the intent to do the same, and subsequently does it in pursuance and execution of such intent, he shall be held responsible therefore, though the same be done in such state of mental derangement; and so also if any person voluntarily or heedlessly induce the mental derangement by intoxication or otherwise.
5. No person shall be held criminally responsible for any act, to the doing of which he is compelled by force which he cannot resist, or from which he cannot escape: Provided, however, that no compulsion shall be presumed without evidence; and no one shall be able to justify himself against a charge of his doing an injury to another, by showing the threat or imminent danger of an equal or less injury to himself.
Section 5, Chapter I—Definitions of Some of the Terms used in this Code, provides, “Words in the masculine gender, signify both the masculine and feminine gender, and those in the singular or plural number signify both the singular or plural number, and words importing adults, signify youths or children, where, from the subject matter, the sense, and the connection in which the words are used, such construction appears to be intended.”
Yesterday, the Star-Advertiser reported that Cedric Gates stated, “I think what has been going on in our community is an issue of mistrust with government and miscommunication, and just misinformation in general being spread through the masses, through social media and these different platforms.” He also stated that many have been susceptible to their Instagram or Facebook feeds, or what they heard from their cousin’s cousin.
Not everything you read on the internet is true. Here’s a State Farm Insurance ad that first aired 9 years ago. It’s more relevant now than it was then.
The practical value of history, is that it is a film of the “past,” run through the projector of “today,” onto the screen of “tomorrow.” The film can never change, but a projector can be updated to process the film, which will change your view of the future. I ke au i hala ka lamaku o ke ala i ke kupukupu—the past is the beacon that will guide us into the future.
The past is very important to Hawaiians. So much so where the Hawaiian word for future is “ka wā ma hope,” which is literally translated to the time of the past. In the past that begins from a second ago to three hundred years ago are the stories or mo‘olelo of our people. This is where one can learn from past mistakes and capitalize on past successes.
Samuel Kamakau
Respected and renowned Hawaiian historian, Samuel Kamakau, wrote an article about deadly diseases that caused the decline of the aboriginal Hawaiian race. It was published in Ka Nupepa Ku‘oko‘a on December 7, 1867, in the Hawaiian language. Here is the translation provided by Awaiaulu, Inc.
The Time of Foreigners Arriving Here in Hawai‘i, it Being the Time That the Native Race Stopped Flourishing
There are many conflicting ideas about the reasons that the decline of the Hawaiians was so resolute here in Hawai‘i. The terrible wars of slaughter were finished, robbers were done with, kidnapping was ended, and unfair deaths and other deadly entanglements that befell the people were over. What, then, was the most potent force in the decline of the Hawaiians?
[1] There was the frequent arrival of deadly sicknesses from foreigners, contagious illnesses, bitter ailments, scorpions, centipedes, wasps, mosquitos, biting flies, and the new bitter elements of these times.
[2] Germs passed from prostitutes, and there were deadly diseases, conta-gions, and cancers. The reign of Kamehameha III was a time when frequent epidemics came in from foreign ships.
In 1826, an epidemic arrived, and it came to be referred to as “cough, wheeze, phlegm, and sore throat.” Thousands perished from Hawai‘i to Kaua‘i, and many in the rural lands died. Luanu‘ukāhalai‘a and George Humehume, along with other chiefs, died from that sickness. In February of 1839, the ship Kai (Qukoke) came, with Henry Pecka as the captain, but he died at sea. It brought widespread illness from Valparaiso, Chile, including stiff neck, swollen throat, and melting scrotum, respectively. Many died in that epidemic. Chiefess Kīna‘u died, as did some lesser-ranking chiefs. In September of 1848, an American man-o-war anchored at Hilo, and it brought an epidemic and a deadly illness called “‘ulāli‘i” and “lepo hehe‘e,” measles and dysentery. Thousands of people died. One-third of the entire nation died from that spread of illness. Many high chiefs and lesser chiefs were lost, including Mose Kekūāiwa, W. P. Leleiōhoku, and Ka‘imina‘auao. There were two houses I saw in Kīpahulu, one being the house of Ilimaihealani at Kukui‘ula with fourteen people inside, most of whom were dead, and only three survivors. The same was true of Kapule’s home at Papauluana, where there were thirteen of them, nine dead and four remaining. If that was the death rate elsewhere in these islands, there would be far more dead than surviving in this kingdom.
An epidemic came in the year 1844, called “painful forehead,” “breaking head,” and yet another name was “tightness.” Many died from this epidemic. The same happened in March and April of 1853 when a deadly illness called “plague,” “smallpox,” or “branding fire” arrived. The foreigners who had contracted this terrible illness were brought ashore at Kahaka‘aulana by Dr. Potter; then, in the month of May, it spread throughout the royal city of Honolulu. The island of O‘ahu was the one most intensely drawn into the flames of this fire, the sparks of which flew to all of our other islands. Thousands died in this epi-demic. Ka‘aione’s place at Kīkīhale was its source, where it was contracted by a black-faced woman. This was a disease that devastated the common people.
In the year 1857, another devastating illness arrived, called “headcold,” “pounding head,” “sore throat,” or “deaf ears.” Many people died, as did some chiefs, including Keoniana and Konia.
Leprosy is a contagious cancer found among people now. Those from the pious to the skeptics catch this consuming disease. Some have died, and though some are now being treated, there is no cure. These epidemics and devastations have been the reason for the spreading desolation and death of the native people. Death from any other illness is very rare, but the number of deaths from the scourges and epidemics were far greater than those deaths from the wars and plunderings of ancient times.
The reason that this misfortune and demise has befallen the Hawaiian people is clear: the foreigners are nation killers. The love of glory and wealth are the companions of deadly illness. Submission to other races makes hospitable offices for contagions and cancers, and these have spread desolation upon this people, bringing on fear and terror and making the whole race shudder and tremble from the impact of fatal illnesses, epidemics, contagions, and cancers that cannot be cured by native healers. These are doses of poison that will decimate this people and allow the people to be easily swept away by death. The decrease in birth rates is another reason for the demise of the native race here in Hawai‘i. The reasons for the decrease in births among the whole race come from many causes, but there are many who give birth to numerous children now, just as in ancient times. Some women bear many children today, up to ten or even twenty, but it is a blessing for even one or two to survive, since most die. At Kīpahulu on Maui, there is a woman who has borne numerous children, ten children so far, each raised up, then dying, and it goes on like that without a single child left surviving; they all died. That is how it is for most of the mothers now living throughout the land. This is not due to bad conduct on the part of the parents, for the lives of families in the countryside are peaceful, nor is there any connection with the places of prostitution, yet they are all dead.
“I am strongly asking everyone to assist me in doing everything to defend against this disease by obeying the directives of those in power along with the medical doctors, and I am strongly urging that people go in large numbers to vaccination sites and to stop gathering in places where there are large amounts of people, and to report those infected with the disease to government officials.”—Princess Regent Lili‘uokalani
Princess Regent Liliʻuokalani
On January 20, 1881, King Kalākaua and his royal suite left Honolulu for a journey around the world. He designated his sister and heir apparent, Princess Liliʻuokalani, as Regent. Article 33 of the 1864 Constitution provides, “It shall be lawful for the King at any time when he may be about to absent himself from the Kingdom, to appoint a Regent or Council of Regency, who shall administer the Government in His name.”
The year 1881 marked the fifth instance that the smallpox virus entered the Hawaiian Kingdom. Its first encounter was in Honolulu in 1853 where 16,500 people were infected and 5,000 died. This national crisis prompted the Hawaiian Legislature to pass An Act to Make Compulsory the Practice of Vaccination Throughout the Hawaiian Islands on August 10, 1854.
When smallpox was detected, fear rippled throughout the native Hawaiian community in Honolulu bringing back memories of the ravage it caused in 1853. This prompted a meeting at Kaumakapili Church on Saturday February 5, 1881, comprised mainly of aboriginal Hawaiian subjects. On February 12th, the Saturday Press reported:
On Saturday last a meeting was convened at Kaumakapili to discuss particularly the present action of the Board of Health regarding the smallpox that has been recently introduced into Honolulu. Early in the afternoon, Mr. John Sheldon, and the Honorable S.K. Kaai mounted the rostrum at the fish market, inciting the natives to flock together and join in the demonstration. Shortly after seven o’clock the church began to fill. Mr. Kaulukoa was appointed chairman. Mr. John Sheldon read the resolutions which had been drawn up, and Mr. Kaai seconded them. The whole of the proceedings were conducted in the Hawaiian language, and frequent bursts of applause, emanating from interested parties, amongst whom were the ex-Minister of Finance, Rev. Kuaea, and the Honorable J. Keau, greeted the speakers when denouncing the present Ministry and the Board of Health. A Committee of twelve was appointed to wait upon H.R.H. the Princess Regent…
On February 16th, the Princess Regent Lili‘uokalani very eloquently responded to the committee’s concerns, which was published by the Ka Elele Poakolu newspaper. Her response was in the Hawaiian language but an English translation has been provided by Awaiaulu, Inc., on Instagram. The Ka Elele Poakolu wrote:
(Here below is the response of the Princess Regent to the Resolutions that the Citizens presented before her through their Committee of Thirteen, calling for her royal compassion to heed the citizens’ humble and heartfelt cry. We are asking for this to be carefully read and for this royal sentiment to be clearly understood.)
Gentlemen:
You have presented before me some resolutions made at a citizens’ meeting regarding the smallpox that is being seen amongst us, which is something which stirs worries within us all.
This disease has devastated nations in ancient eras past, and it is something that we cannot presume to avoid in all instances. The first time this disease arrived to us was in 1853, and at that time people did not realize the terrible nature of this disease, and a great deal of suffering was witnessed. However, when it arrived again in 1863 and 1872, the nation was spared because some of them had contracted the disease in 1853, and so they were more agreeable in obeying the advice to act to fend it off; it did not spread extensively, and it also did not spread very much during its last arrival in 1877.
This past December, a ship arrived from San Francisco, not realizing there was an infected person aboard; a passenger disembarked, and afterward, his smallpox came about.
Even through cautious safeguards, this type of unfortunate coincidence cannot be avoided, and it is evidence that we are to be stricken by this disease just as other nations are. The disease did not spread further from this person.
The second instance was the steamship Cassandra from China, and from this ship a person with smallpox was smuggled ashore even though the captain reported that no one aboard the ship was sick. This person was concealed aboard the ship and not reported to our officials, and he was brought ashore in the night. There were strong steps taken to protect the health of the public, and because of those actions, there was no tragedy resulting from this person.
All of the infected people that we have recently seen have been confirmed to be from the steamship Quinta that arrived on the 12th of January, reporting that there was no disease on board. There were four people who had died while at sea, and after carefully questioning the captain, he reported that they had not died from any contagious disease, and there was no source of disease at that time that would lead one to think that his report was false.
Only after this ship departed, some of the people who had deserted that ship reported that the people who had died had succumbed to smallpox, and that there were two Chinese on King Street who had mild symptoms of this disease. In my understanding, the disease was not seen among the Chinese passengers of this ship outside of these two Chinese, and the disease spread to our nation from the crew of that ship.
So, as all of you may realize, the false reports of the ships’ captains cannot be defended against by the careful guardianship of our security officials.
I am strongly asking everyone to assist me in doing everything to defend against this disease by obeying the directives of those in power along with the medical doctors, and I am strongly urging that people go in large numbers to vaccination sites and to stop gathering in places where there are large amounts of people, and to report those infected with the disease to government officials.
Know that my heart is filled with sadness, and that I am hopeful that this disease will not spread amongst us. I am doing, and will continue to do, everything within my power to prevent its spread, and I am strongly asking everyone to assist me in doing everything to defend against this disease by obeying the directives of those in power along with the medical doctors, and I am strongly urging that people go in large numbers to vaccination sites and to stop gathering in places where there are large amounts of people, and to report those infected with the disease to government officials.
In this matter, I want it to be clearly understood. I know for a fact, that in these past days, some people have attempted to, and successfully taken people and hidden them in outer districts where they cannot be aided by doctors, and those places have become areas where the disease is spread amongst those who might not have otherwise been infected by the disease.
I ask all of you, my friends, what is the benefit of taking careful guard, if this ignorant offense of concealing people who are infected with this disease is committed?
I again ask all of you, and I encourage all of you, to urge everyone to report every person who is infected with this disease, to assist those who have been assigned to guard the nation, and to know that I am doing everything that I can so that everyone can receive the fine help that I am receiving.
A question has been circulating throughout the Islands asking whether the Hawaiian Kingdom would require vaccinations for all people within its territory. The answer is “YES.” Smallpox and COVID-19 are viruses and both cause death on a massive scale. In 1853, the Hawaiian Kingdom had a serious bout with the smallpox virus in the city of Honolulu. A total of 16,500 infections with 5,000 deaths.
Hawaiian historian, Samuel Kamakau, who witnessed the ravage, wrote, “From the last week in June until September the disease raged in Honolulu. The dead fell like dried kukui twigs tossed down by the wind. Day by day from morning till night horse-drawn carts went about from street to street of the town, and the dead were stacked up like a load of wood, some in coffins, but most of them just piled in, wrapped in cloth with heads and legs sticking out.”
The government reported, “No new cases of smallpox has been reported. Those already existing are doing well. The health of the city is otherwise generally good.” After two-months the epidemic passed and Honolulu was virus free. After the outbreak, the Hawaiian Legislature enacted the following statute making vaccinations compulsory:
An Act to Make Compulsory the Practice of Vaccination Throughout the Hawaiian Islands
Whereas, the late mortality caused by the Small Pox has shown the necessity of compelling a general and effective vaccination of the subjects of this Kingdom; Therefore,
Be it Enacted by the King, the Nobles and Representatives of the Hawaiian Islands, in Legislative Council assembled:
Section 1. As soon as may be convenient after the passage of this act, the Minister of the Interior shall appoint four suitable persons as Vaccinating Officers, viz:
One for the Island of Hawaii. ” ” ” Islands of Maui, Molokai, and Lanai. ” ” ” Island of Oahu. ” ” ” Islands of Kauai and Niihau,
who shall receive such salaries as may be provided in the annual appropriation bills.
Section 2. Each vaccinating officer shall elect, within his respective district, a number of convenient places, not less than three in each school district, for the performance of vaccination; and from time to time give public notice of the day and hour at which he will attend at such places, to vaccinate all persons not already successfully vaccinated, who may then and there appear; and also of the time at which he will attend at such place, to inspect the progress of such vaccination in the persons so vaccinated.
Section 3. The father or mother of every child born on the Hawaiian Islands, after the first day of June, 1854, shall, within six calendar months after the birth of such child, or in the event of the death, illness, or absence of the father or mother, then the guardian, nurse or person having charge of the said child, shall, within six months after the birth of said child, or at the earliest opportunity after, take the said child to the vaccinating officer of the district in which the said child is resident, for the purpose of being vaccinated.
Section 4. Upon the eight day following the day on which any child has been vaccinated, as aforesaid, the father, mother, or the person having charge or custody of the said child shall again take the said child to the vaccinating officer, by whom the operation was performed in order that he may ascertain by inspection, the result of such operation.
Section 5. Upon the ascertained successful vaccination of any child the vaccinating officer shall deliver to the father, mother, or person having charge of the said child, a certificate under his hand, that the child has been successfully vaccinated; and shall not the same in a book to be kept by such vaccinating officer for that purpose; for which services the said officer shall not be entitled to demand and receive from the father, mother or person having charge or custody of such child, any pay whatsoever.
Section 6. On the presentation of a child to be vaccinated, should the vaccinating officer deem the child in an unfit state to be vaccinated, he may postpone the operation to some future time, at his discretion, giving due notice to the parents, or persons having charge or custody of such child, to reproduce it for vaccination at such future time.
Section 7. The vaccinating officers appointed under the provisions of this act may be removed from office at any time, by the Minister of the Interior.
Section 8. The vaccinating officers shall visit the several stations appointed by them, once in every six months, or oftener if deemed necessary by the Minister of the Interior, and the parent or person having charge or custody of any child which has not been vaccinated who shall neglect to produce such child for vaccination in accordance with the third section of this act, shall be subject to a fine of five dollars, on conviction of such neglect before any Police or District Justice of this Kingdom; one-half of which fine shall be paid to the informer.
[According to the inflation calculator, a $5 fine in 1854 would be $154.05 in 2020]
Section 9. The Minister of the Interior is hereby charged with the duty of carrying out the provisions of this act, and of providing the necessary books and stationary to the vaccinating officers.
This was a test for the newly created Smallpox Commission that was established by statute on May 16, 1853. The statute’s preamble stated, “Whereas, the Small-Pox is believed to exist in this Kingdom, and humanity and a just regard to life require that all who are affected with that disease should receive strict care and attention, and whereas it is desirable that the disease shall not extend through the Islands.” The Board of Health eventually assumed complete control in response to future smallpox outbreaks.
After the King, in Privy Council, in 1869 concluded that smallpox was endemic to the west coast of the United States and posed a direct threat to the health and well-being of Hawai‘i’s people, Mokuakulikuli—known today as Sand Island, was designated as the Quarantine Ground. The Hawaiian Gazette reported, “Altogether, about ninety persons can be comfortably accommodated at the quarantine buildings.”
Vaccinations in the nineteenth century were not full proof and another outbreak of smallpox hit Honolulu in 1881 that lasted just over five months. 282 people lost their lives.
There were hard lessons learned from the second outbreak that eventually culminated in the Board of Health’s adoption of a more comprehensive and authoritative quarantine regulations in 1891. The regulations focused on incoming passenger and merchant ships arriving from foreign ports.
Under these quarantine regulations, full authority and centralized control was vested in the Board of Health to make on the spot decisions that had the backing of the Hawaiian government through enforcement. The regulations were driven by medical experts and not politicians.
The regulations also provided who was responsible for the costs of the quarantine, which would not be incurred by the Hawaiian government. If payment was refused, the ship and/or assets were seized and liquidated to pay for the costs the government incurred.
1891 Quarantine Regulations
The Board of Health may, from time to time, establish the quarantine to be performed by all vessels arriving at any port of the Kingdom, and may make such quarantine regulations as may be deemed necessary for the public health and safety. (Civil Code, Section 292).
The quarantine regulations so established shall extend to all persons, goods and effects, arriving in such vessels, and to all persons who may visit or go on board of the same. (Civil Code, Section 293).
Notice shall be given of such quarantine regulations by publication in the manner provided in Section 284 of the Civil Code; after which notice, any person violating such quarantine regulations shall be fined a sum of not less than five dollars (equivalent to $144.04 today) nor more than five hundred dollars (equivalent to $14,403.78). (Civil Code, Section 294).
Any vessel which shall refuse to submit to quarantine or which shall leave the quarantine ground before the expiration of the quarantine imposed upon her, or which shall be the means of clandestinely introducing into this Kingdom any contagious disease, or any disease dangerous to the public health, shall be liable to seizure, confiscation and sale for the benefit of the public treasury. (Civil Code, Section 295).
The Board of Health or its agents may at any time cause a vessel arriving at any port in this Kingdom, when they deem such vessel, or any part of its cargo, to be foul, infected, or in any way dangerous to the public health, to be removed to the nearest quarantine ground, and to be thoroughly purified at the expense of the owners, consignees or persons in possession of the same; and they may also cause all persons arriving in or going on board of such vessel, or handling such infected cargo, to be removed to some place of safety, there to remain under their orders. (Civil Code, Section 296).
If any master, seaman, or passenger, belonging to a vessel on board of which there may be at the time, or may have lately been, or suspected to have been any infectious or contagious disease, or that which may become the source of such disease, or which may have been at or have come from a port where any infectious or contagious disease prevailed that may endanger the public health, shall refuse to make answer on oath to such questions as may be asked him, relating to said disease, or possible source of disease, by the Board of Health or its agents, such master, seaman, or passenger, so refusing, shall be punished by fine not exceeding five hundred dollars (equivalent to $14,403.78), or be imprisoned with hard labor for not more than twelve months, or both, at the discretion of the Court. (Civil Code, Section 297).
Upon arrival of any vessel making the usual marine signal for a pilot, it shall be the duty of pilot or pilots at the port, to immediately put off such vessel, taking with him a white and yellow flag, to inquire into the sanitary condition of the ship and the health of those on board; and upon being assured to satisfaction that there is no danger to be apprehended from any contagious disease, he shall board the vessel, but not otherwise. (Civil Code, Section 594).
Upon boarding the vessel, the pilot shall present to the commanding office a heal certificate to be signed by him, and in case the same shall be signed, the white flag shall be immediately hoisted at the main, and the pilot shall be at liberty to bring the vessel into port; but in case the commanding officer shall decline to sign the certificate of health, the pilot shall deliver to him a yellow flag, which the master shall hoist at the main, and the vessel shall be placed in quarantine outside of the harbor, and anchored where the pilot may direct. Any pilot who shall conduct a vessel into any port in this Kingdom, in violation of provisions of this section, or any of the regulations of the Board of Health, or knowing that there is just ground to suspect the existence of contagion on board, shall be liable to fine not exceeding five hundred dollars (equivalent to $14,403.78); and every vessel, the master of which shall have declined to sign a certificate of health, as above prescribed, shall upon entering port, be liable to seizure, confiscation and sale. (Civil Code, Section 595).
If the Pilot, after boarding any vessel, shall discover the existence of any infectious or contagious disease, be shall not return on shore without the permission of the Board of Health; neither shall it be lawful for any of the ship’s company or passengers to land, or communicate with the shore, or to board any other vessel without the permission of the Board of Health, or the Collector, under penalty of a fine not exceeding five hundred dollars (equivalent to $14,403.78). (Civil Code, Section 596).
The Board of Health and its agents may from time to time, at their discretion, appoint certain places within or near any harbor or anchorage in the Hawaiian Islands, for the performance of quarantine, where all or any vessel or vessels, crews, passengers and other person on board thereof, shall perform the same; and also may appoint stations apart from such vessels, where any persons or things shall be detained for the performance of quarantine.
Every vessel arriving off any port of these Islands, may be boarded by the Port Physician, who shall examine personally the crews and passengers, and if satisfied that no contagious or infectious disease, that is dangerous to the public health, exists, or has recently existed on board, he shall give the Captain a certificate to that effect; but if not so satisfied, he shall give the Captain a certificate to that effect; but if not satisfied, he shall order the Pilot to anchor the vessel outside of the harbor and notify the Board of Health of the facts. No vessel may enter the harbor or any port of this Kingdom, when forbidden to do so by the Port Physician of said port.
All expenses incurred on account of any person, vessel, or goods, shall be paid by such person, vessel or owner, or consignee of such vessel or goods, the vessel causing them not receiving a permit to quit the port until said expenses are paid.
In every case where a vessel is boarded by the Port Physician, his fees and expenses shall be paid by the vessel or its representatives; and if said vessel or its representatives decline to pay these fees, the Collector of Customs shall collect them and shall not grant a clearance to said vessel until such fees and expenses shall have been paid.
The resident physicians who are, or shall be appointed by the Government to take charge of the various districts of these Islands, except Honolulu, are hereby appointed by the Board of Health to act as Port Physicians for all ports in their several districts.
If a vessel, passing on to another port or country, wish to land persons or goods in any port of these islands, the said vessel being obliged to undergo quarantine under the provisions of the previous Sections and these regulations, the person or goods entering said ports of these Islands may be landed and shall undergo such quarantine or other treatment as the Board of Health shall order, after which the vessel shall be free to depart, when her quarantine is raised.
On the arrival of a vessel at any port of this Kingdom, coming from a port known to be infected with cholera, yellow fever, smallpox, scarlet fever, plague or any other contagious or infectious disease deemed by the Board of Health to be dangerous to public health, although no case of such disease may have broken out on board during the voyage, the officers, crew and passengers of such vessel may be kept in quarantine until a period of eighteen days shall have elapsed from the time of her leaving said infected port; and the vessel herself and her cargo shall undergo such process of cleansing and disinfection as the Board of Health shall judge necessary.
On the arrival of a vessel at any port of this Kingdom which has or has had on board during the voyage, any person sick with smallpox or scarlet fever, (1,) the sick persons, if passengers for that port, shall be sent to the quarantine hospital for such a period as may be deemed necessary; (2,) the officers, crew, well passengers and other persons on board shall be placed in quarantine apart from the aforesaid, for such period as may be deemed necessary by the Board of Health; (3,) and the whole or part of the ship and its cargo shall undergo such fumigation and disinfection as the Board may deem necessary. But with regard to all sick passengers other than passengers for that port, and with regard to all persons sick with cholera, yellow fever or plague, and with regard to all persons sick with cholera, yellow fever or plague, the Board will not consider itself bound to receive them or to take care of them in quarantine.
No person shall leave or visit any quarantined vessel, or any house, enclosure or place set apart for quarantine purposes; unless by written permission of the President of the Board of Health, or some agent authorized by said Board.
Under no circumstances provided for by the last preceding regulation, shall clothing, personal baggage, or any goods be allowed to be landed from any vessel or removed from any place, before having undergone such disinfecting process as may be ordered by the Board of Health; nor shall letters or mails be landed in Honolulu except by written permission of the President of the Board of Health, or in any other district of the Kingdom except by permission of the District Port Physician.
Vessels arriving from an Asiatic port, or from any port reported to be infected with cholera, yellow fever, or smallpox shall not enter any port of this Kingdom, though such vessels may show a clean bill of health, until special permission is granted by the Board of Health for entry into the port of Honolulu, or by a duly accredited agent of the Board for entry at any other port in the Hawaiian Islands. Such vessels shall be anchored on quarantine ground, at such places as may be chosen by the Pilot under direction of the Port Physician, and remain at such anchorage until changed or admitted into port by the Board of Health.
The Board of Health may order the fumigation and disinfection of all personal effects from Asiatic ports.
Any vessel placed in quarantine shall fly a yellow flag at the main by night and shall keep such signals hoisted until released from quarantine.
It shall be the duty of the Pilot to deliver to the commanding officer of any vessel he may board a copy of the aforesaid quarantine regulations, with which he shall be provided by the Board of Health for that purpose.
Although these regulations were applied to arriving ships throughout the kingdom, they are applicable today to airplanes arriving throughout the various airports as well.
If the United States or its proxy the State of Hawai‘i was complying with the international law of occupation by administering the laws of the Hawaiian Kingdom, COVID-19 would have been detected much sooner and quarantine measures would have taken effect followed by a lockdown of the borders to prevent foreign travelers from re-introducing the virus.
Hawaiian Bureau of Immigration and the Authority to Deny Entry
The legislature in 1864 established a Bureau of Immigration within the Ministry of the Interior. Its purpose was “superintending the importation of foreign laborers, and the introduction of immigrants.” The Bureau came under the control of the Minister of the Interior who was “assisted by a committee of five members of the Privy Council of State, to be appointed by His Majesty the King for that purpose.”
On January 14, 1880, the Bureau enacted an ordinance regulating immigration. In particular, Section 7 of the ordinance provided, “Immigrants not desiring to make engagements for labor shall, before leaving the depot, furnish to the President of the Board of Immigration satisfactory evidence that they will not become vagrants or a charge on the community for their support.”
Section 7 was the basis for the denial of a petition for writ of habeas corpus to the Hawaiian Kingdom Supreme Court by two passengers that completed quarantine for smallpox but were still detained by the Minister of the Interior because they did not satisfy section 7 of the regulations of the Board of Immigration.
Before the second outbreak of smallpox in Honolulu, the steamship Septima arrived in Honolulu from China on February 13, 1880. It was determined by the Board of Health that the virus existed amongst the passengers and they were removed to Sand Island for quarantine.
After they were cleared of smallpox by the Board of Health, authority was then passed over to the Board of Immigration. They were further detained by the Minister of the Interior until each of the passengers provided evidence that “they will not become vagrants or a charge on the community for their support.”
Two of the passengers from China refused to agree with section 7 of the regulations and claimed that the ordinance, itself, was unlawful because it was not a law passed by the legislature. In the Matter of Chow Bick Git and Wong Kuen Leong, the Hawaiian Kingdom Supreme Court, in 1881, not only denied the petition by upholding the Board of Immigration’s ordinance as constitutional, it also addressed the authority of the Hawaiian government to deny entry of foreigners.
After the Court cited Vattel’s Law of Nations and the passenger cases before the United States Supreme Court on a State’s authority to deny entry into its territory by foreigners, Associate Justice Albert F. Judd provided a separate opinion in agreement with the Chief Justice. He further stated:
“the State has a right to impose such terms and conditions precedent to the entry of foreigners within its borders as in its opinion are essential to its welfare, peace and good government. I see no reason why a sovereign State may not prescribe these terms, even in the absence of municipal law declaring what they shall be. The State may say to those who seek to become residents within its territory, ‘We will admit you, providing you accede to these terms which we deem to be reasonable and necessary.’”
In a petition to U.S. President Grover Cleveland dated December 27, 1893, by the officers of the Hawaiian Patriotic League, a political organization whose membership comprised of over 8,000 voters that represented the commoner class, they opened with:
Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole Hawaiian nation, a nation who, for the past sixty years, had enjoyed free and happy constitutional self-government. This was done by a coup de main of U.S. Minister Stevens, in collusion with a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered by continuous political defeat, who, as a revenge for being a hopeless minority in the country, resolved to “rule or ruin” through foreign help.
The officers of the League were comprised of very well-respected individuals that included attorneys and those who held government offices. These officers who signed the petition are:
J.A. Cummins, Honorary President Joseph Nawahi, President Jno. E. Bush, Vice-President John Lot Kaulukou, Vice-President J.K. Kaunumano, Vice-President J.W. Bipikane, Vice-President Jas. K. Kaulia, Secretary Enoch Johnson, Treasurer Jno. Uahiai Kaneakua, Executive Councilor D.W. Pua, Executive Councilor J.K. Merseburg, Executive Councilor W.H. Rickard, Executive Councilor John Ross, Executive Councilor John K. Prendergast, Executive Councilor Abraham K. Palekaluhi, Executive Councilor J. Kahahawai, Executive Councilor A. Marques, Executive Councilor W.T. Seward, Executive Councilor
What makes their opening statement revealing is that it runs counter to the historical narrative that people in Hawai‘i know today. First, the HPL referred to the insurgents as “faithless sons of missionaries,” and not missionaries themselves. Second, they referred to “free and happy constitutional self-government.” Another historical fact can also be gleaned from a statement made by King Kamehameha III in his letter to the American Consul, P.A. Brinsmade, dated October 28, 1839, that questioned whether the American missionaries were involved in decision making by the Hawaiian government. Kamehameha III wrote:
I have received your letter asking questions respecting the American missionaries, supposed by some to regulate the acts of my government under me; I, together with the chiefs under me, now clearly declare to you, that we do not see any thing in which your questions are applicable to the American missionaries. From the time the missionaries first arrived, they have asked liberty to dwell in these islands. Communicating instructions in letters, and delivering the word of God has been their business.
They were hesitatingly permitted to remain by the chiefs of that time, because they were said to be about to take away the country. We exercised forbearance, however, and protected all the missionaries, and as they frequently arrived in this country, we permitted them to remain in this kingdom because they asked it, and when we saw the excellence of their labors, then some of the chiefs and people turned to them in order to be instructed in letters, for those things were in our opinion really true.
These historical facts run counter to the common recital today that the United States and American missionaries controlled the Hawaiian Kingdom, from the King down, to the detriment of the commoner class of people. The “evil” missionaries became the common trope that they, not the Hawaiians, controlled the kingdom.
Examples of this targeting of the kingdom is Professor Sally Merry in her 2000 book Colonizing Hawai‘i: The Cultural Power of Law, where she states, “the relationship between Euro-Americans and Native Hawaiians was a classical colonial relationship [that sought] to transform the society of the indigenous people and subsequently wrested political control from them.” In his 2002 book, Dismembering Lāhui, Professor Jon Osorio concluded the Hawaiian Kingdom “never empowered the Natives to materially improve their lives, to protect or extend their cultural values, nor even, in the end, to protect that government from being discarded,” because the system itself was foreign and not Hawaiian.
Dr. Robert Stauffer, in his 2004 book, Kahana: How the Land Was Lost, writes, “the government that was overthrown in 1893 had, for much of its fifty-year history, been little more than a de facto unincorporated territory of the United States…[and] the kingdomʻs government was often American-dominated if not American-run.” And Professor Noenoe Silva, in her book, Aloha Betrayed: Native Hawaiian Resistance to American Colonialism, concluded that the overthrow “was the culmination of seventy years of U.S. missionary presence.” These conclusions have no basis in relevant historical facts nor in relevant laws.
A particular trope constantly recited is that the 1848 Great Māhele or Great Land Division was controlled by the missionaries that dispossessed the commoner of their lands. There are no historical records from the nineteenth century that says the Māhele was a disaster. It was a fiction invented in Lilikalā Dorton’s 1986 doctoral dissertation titled, Land and the Promise of Capitalism: A Dilemma for the Hawaiian Chiefs of the 1848 Māhele. She later changed her last name to Kame‘eleihiwa and her dissertation was published as a book in 1992 titled Native Land and Foreign Desires: Pehea Lā E Pono Ai? In her book she wrote:
The culmination of changes in traditional Land tenure in Hawai‘i in 1848 is commonly known as the “Great Mahele.” I refer to it simply as the “1848 Mahele” because it proved to be such a terrible disaster for the Hawaiian people, and the word “great” has a connotation of superior. It was a tragic historical event, a turning point that had catastrophic negative consequences for Hawaiians.
This subjective conclusion that the Māhele was a “tragic historical event” was Kame‘eleihiwa’s own making. Historians did not call this historical event as tragic. Kame‘eleihiwa draws attention to Marion Kelly who, in her M.A. thesis in anthropology, “placed a new emphasis on the effect of the Māhele on the maka‘ainana Hawaiian (commoner).” Kelly introduced the framing of Hawaiian land tenure to be a conflict between the missionaries and chiefs, as the bourgeoise, and the Hawaiian commoner as the proletariat. Kame‘eleihiwa sought to confirm this bias. Osorio also hints at the hypothesis that guided Kame‘eleihiwa’s research. In his book, he writes:
As significant an event as the Mahele has proven to be, historians have seen it as a way of making specific indictments either of Ali‘i or of colonialism. No one disagrees that the privatization of lands proved to be disastrous for Maka‘ainana [commoners], yet the focus of every study, from John Chinen’s 1958 work to Kame‘eleihiwa in 1992, has been to try and establish the principal responsibility for its “failure.”
The underlying basis for the “failure” of the 1848 Māhele is explained by Kame‘eleihiwa where she alleges that the commoner class only received “a total of 28,658 acres of Land [in fee-simple], which is less than 1 percent of the total acreage of Hawai‘i.” This alleged travesty of the commoners would then be attributed to the western legal systems that commoners could not understand or comprehend because of their traditional political and social relationships. According to Kame‘eleihiwa, the “vast majority of Native Hawaiians simply did not understand the capitalist uses of private ownership of ‘Āina (land): they did not know how to use ‘Āina to increase their wealth.”
Osorio accepted this as a historical fact by stating that the “single most critical dismemberment of Hawaiian society was the Māhele or division of lands and the consequent transformation of ‘āina into private property between 1845 and 1850.” Osorio restates Kame‘eleihiwa’s numbers and adds the “failure” of governance to the “failure” of land distribution, which he concluded happened in 1851. According to Osorio, the “haole (white foreigner) were insinuating themselves to fill the spaces created by that dismemberment. They began with oaths of allegiance, they progressed to recognizing themselves as legal titleholders to the land, and they capped it off by taking over the House of Representatives in 1851, after awarding suffrage to haole whether they were citizens or not.” There is no evidence, however, that aliens served in the House of Representatives.
The negotiations of the Māhele began in December of 1847 and certain rules of the division were adopted by resolution in Privy Council on December 18, 1847, which would not only guide the division process, but also contractually bind the King and the Konohikis to adhere to the rules of the division and the right of commoners to acquire a fee-simple title to the lands they occupied under the Konohikis or the Government. The Great Māhele in 1848 did not begin private ownership of lands in Hawai‘i, rather, it was the beginning of private ownership for the Konohikis and commoners who were previously under the ancient system of land tenure.
Three years prior to the Māhele was the establishment, by statute, of the Board of Commissioners to Quiet Land Titles, also called the Land Commission. It’s purpose was to investigate claims to fee-simple, life estates or leases that were issued by the King or chiefs prior to 1845. Where found valid a Land Commission Award would be issued. The chiefs and commoners who held their possession under the ancient system called ali‘i‘ana that bore a remarkable resemblance to the feudal system of medieval Europe, were not required to file a claim because the chiefs and commoners under the ancient system did not have fee-simple, life estates, or leases yet. The Māhele would, however, start that process. The Land Commission was authorized by statute to only accept claims to these titles between February 14, 1846 to February 14, 1848.
The directive for the Chiefs to file their claim with the Land Commission is explicitly stated in the 1848 Māhele book. The Māhele book is also the evidence of the adherence to the division rules by the King and Chiefs where the division with the Tenants in fee-simple would occur when “said Tenants shall desire a division.” Before the Konohikis received lands they had to consent to the division and were directed by Kamehameha III, “e hiki ke lawe aku imua o ka Poe Hoona Kuleana (translation: take it before the Land Commission).”
In addition to the directive given to the Konohiki, the commoners called Native Tenants were also encouraged to file their claims with the Land Commission before the February 14th deadline. On January 4, 1848, Reverend Hitchcock, who was very concerned about the deadline for natives to file their claims, asked Chief Justice William Lee, who was also serving as the President of the Land Commission, if the deadline could be extended. Lee responded on January 14th:
I agree with you that the subject of prolonging the time for sending in land claims is worthy of serious consideration, and I will take the first opportunity to bring it before the King in Privy Council. The tenants however, will not lose their rights should they fail to send in their claims, for I will see that no Konohiki has a title to lands except upon the condition of respecting the rights of tenants. Still, it is necessary that the tenants should send in their claims, in order that their rights may be separated from those of the Konohiki, and they know what rights they really have.
These claims that managed to get filed were for the purpose of granting fee-simple titles to the Native Tenants. The Land Commission at the time, however, was not authorized to grant titles, but only authorized to investigate claims to titles. The Land Commission would soon receive authorization to act on behalf of the King and Chiefs to grant fee-simple titles according to the rules of the Māhele. This is what prompted Privy Council Resolution dated December 21, 1849, whereby the King and Chiefs would allow “fee-simple titles, free of commutation, be and hereby granted to all native tenants” with certain conditions. The following year on August 6, 1850, the Legislature amended the role of the Land Commission whereby “the board of commissioners to quiet land titles be, and is hereby empowered to award fee-simple titles in accordance with the foregoing [Privy Council] resolutions.” This statute has come to be known as the Kuleana (Fee-simple) Act.
For those Native Tenants that needed additional lands, the statute provided “a certain portion of government lands in each island shall be set apart, and placed in the hands of special agents, to be disposed in lots of from one to fifty acres, in fee-simple, to such natives as may not be otherwise furnished with sufficient land, at a minimum price of fifty cents per acre.” The following year on June 16, 1851, the Legislature passed An Act to Provide for the Appointment of Agents to Sell Government Lands to the People to facilitate this process already set-in motion by the 1850 Kuleana Act. These lands “from one to fifty acres” were for those Natives that were unable to file their claims with the Land Commission by February 14, 1848.
According to the inflation calculator, $.50 in 1850 would be $16.59 in 2020.
The vested rights of the Government class was vested in (1) government, and the vested rights of the Konohiki class was vested in (253) Konohikis, which included Kamehameha III, and were identified in the Māhele book. The vested rights, however, of the Native Tenant class is infinite in number because it is not vested in the name of certain people in the class unlike the Konohiki class but includes future generations of Native Tenants. As stated by the Hawaiian Supreme Court, in Kekiekie v. Dennis, 1 Haw. 69, 70 (1851):
…the people’s [rights in the] lands were secured to them by the Constitution and laws of the Kingdom, and no power can convey them away, not even that of royalty itself. The King cannot convey a greater title than he has, and if he grants lands without reserving the claims of tenants, the grantee must seek his remedy against the grantor.
For those Konohiki in the Māhele that also failed to file their claims with the Land Commission, the Legislature enacted in 1854 An Act for the Relief of Certain Konohikis that extended the time to file with the Land Commission. And when the Land Commission was dissolved in 1855, those Konohiki that did not file were then authorized to file their claims with the Minister of the Interior under An Act for the Relief of Certain Konohikis, whose Names Appear in the Division of Lands from Kamehameha III (1860).
In the 1882 report by the Surveyor General, he noted that Kamehameha III “showed his deep sympathy with the wants of his people, and set an illustrious example of liberality and public spirit …[and the] whole transaction was a severe test of their patriotism, and reflects great credit on that Hawaiian aristocracy which thus peacefully gave up a portion of its hereditary rights and privileges for the good of the nation.” These statutes also show the liberality with which the Hawaiian government was extended to both the chiefly class and the commoner class.
The Surveyor General also reported that between “the years 1850 and 1860, nearly all the desirable Government land was sold, generally to natives.” Donovan Preza, in his 2010 M.A. thesis on the Great Māhele tallied the number of acreage acquired by the Native within this ten year period to be a remarkable 111,448.36 acres. This number of acreage is in addition to the 28,658 acres that Natives acquired from the Land Commission that Kame‘eleihiwa and Osorio hang theirs hats on as their sole evidence of oppression. By 1893, Natives acquired from the government a total of 167,290.45 acres. This is not evidence of dispossession and oppression of the commoners by the aristocracy and missionaries.
Preza’s thesis not only rebukes Kame‘eleihiwa’s conclusions, which is reflected in its title, The Emperical Writes Back: Re-Examining Hawaiian Dispossession Resulting from the Māhele of 1848, but also undermines Osorio’s reliance on Kame‘eleihiwa’s so-called travesty of the Māhele upon the Natives. What is ironic, to say the least, is that the very Legislature that Osorio accuses of dismemberment was in fact responsible for facilitating the acquisition of lands for those Natives that were not able to file their claim with the Land Commission. What Osorio fails to mention in his book is that it was practice for the House of Representatives to publish a report of their work in the government newspaper, The Polynesian, after the legislative session has ended.
In their address “To the Makaainana of the Hawaiian Islands,” dated June 28, 1851, all twenty-four Representatives begin with, “We, the undersigned, Representatives of the People, feeling it our duty to render an account of the manner in which we have discharged the trust reposed in us, hereby submit to you a summary of the laws, passed during the last session of the Legislature, which we consider of most interest to the People at large.” In particular, they stated:
We have passed an Act for the appointment of agents, in every district where there are Government lands for sale, whose duty it shall be to sell lands to the Makaainanas residing in such districts, in lots of from one to fifty acres, at a minimum price of fifty cents per acre.
Hereafter, there can be but little doubt that each man, not already provided with sufficient land, will become possessed of a small farm. Save your money then, and improve the opportunity, now afforded, of purchasing a homestead for yourselves and families. Those of you who have no kuleanas (fee-simple), or who have neglected to send in your claims, to the Land Commissioners, must not fail to avail yourselves of this privilege.
Kame‘eleihiwaʻs book has been used to teach Hawaiian history in the Middle Schools, High Schools and at the Universities across the globe. This historical invention has become so pervasive and entrenched in the minds of people that if someone were to ask a student of Hawaiian history a question about the Great Māhele, a typical response would be “Whatʻs so Great about it?”
From an academic standpoint, if scholars carefully read Kame‘eleihiwa’s book, they would have seen a glaring red flag that would raise serious concern as to the veracity of her conclusions. Her book is her doctoral dissertation out of the History Department at the University of Hawai‘i at Mānoa. In her book, Kame‘eleihiwa writes, “To those members of the History department who refused to sign off on my ʻbrilliant’ dissertation, let the Lāhui decide who is more skilled in their profession. Soon young Hawaiians—my students—will rise to assume your positions as you fade into the obscurity of footnote trivia.” Her dissertation can be retrieved from the University of Hawai‘i’s Hamilton Library and it shows that two of the committee members, who were tenured in the History Department—Professors Pauline King and Edward Beechert, did not sign off on the dissertation. What was more concerning was that Professor King was the chair of her committee. She, by the way, was part aboriginal Hawaiian. According to the rules at the University of Hawai‘i at Mānoa, a Ph.D. degree cannot be granted if the Chair of the doctoral committee did not sign off.
Despite Osorio’s failure to directly address in writing his misinterpretations of the Great Māhele and the 1851 House of Representatives in his book Dismembering Lāhui, he did, to his credit, speak to this issue in an online webinar celebrating Lā Kūʻokoʻa (Hawaiian Independence) on November 28, 2020. He admitted that the Māhele was “done to protect the hoaʻāina, the makaʻāinana, the people of the land who are not chiefs; to protect their existence on the land, and this is one of the most amazing things about the Māhele, and it was something that I didn’t really understand when I wrote my book. It was something that, really…Professor Keanu Sai makes clear to all of us.”
The Legal Information Institute explains that amicus curiae is “Latin for ‘friend of the court.’ Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court’s decision. Such briefs are called ‘amicus briefs.’”
The Motion states:
Counsel for amici curiae International Association for Democratic Lawyers, National Lawyers Guild, and the Water Protector Legal Collective—nongovernmental organizations with expertise in International Law and Human Rights Law, hereby move this Court for an order allowing it to file the attached amicus curiae brief in support of Plaintiff, the Hawaiian Kingdom. In support of this motion, the movant states:
1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.
2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.
3. Plaintiff has consented to the filing of this brief. Defendant County of Kaua‘i has indicated it opposes the filing of this brief. Other Defendants have either not taken a position or not entered an appearance in this case.
4. For the foregoing reasons, we respectfully request the Court’s permission to file the amicus brief attached hereto. In the alternative, we request a pre-motion conference with the Court for leave to file such a brief.
The IADL/NLG/WPLC supports the Hawaiian Kingdom’s position that since the U.S. District Court is located within the territory of the Hawaiian Kingdom and not within the territory of the United States, it’s authority can only come as an Article II Court and not an Article III Court. Articles II and III refers to the U.S. Constitution where Article II describes the authority of the President and Article III describes the authority of the Supreme Court and the lower federal courts. According to Professor Bederman, who authored a law article titled “Article II Courts,”:
What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his consequent war-making authority.
Article II courts were established in Germany after the Nazis surrendered in 1945. Since then, western Germany was occupied by the United States, France and Great Britain until 1955 when a treaty of peace came into effect between Germany and the three occupying States that changed the state of affairs under international law from a state of war to a state of peace. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “all offenses against the laws and usages of war, all offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, and all offenses under the laws of the occupied territory or any part thereof.”
In its amicus, the IADL/NLG/WPLC explain, “Most importantly, functioning as an Article II court here would not undermine all this Court’s past judgments; previous judgments and laws of the United States would remain in effect unless they are at odds with the laws of the occupied Hawaiian Kingdom.” They then cite the 2014 proclamation of the Council of Regency of the Hawaiian Kingdom’s Provisional Laws:
We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.
The amicus concludes with:
Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning. Recognition of the prolonged occupation of the Hawaiian Kingdom by the United States through Declaratory Judgment is not only a redressable claim, it is long overdue and would only be consistent with what is already known to the international community and clear under international law. Additionally, granting the Hawaiian Kingdom injunctive relief would acknowledge the Kingdom’s continuous sovereignty, mitigate the United States’ liability for its war crimes against the Hawaiian people, and apply local law as required of an occupying power by the international law of war. Acknowledging extraterritoriality and occupation would have the practical effect of applying the laws of the Hawaiian Kingdom but as was the case with prior occupation courts, this would not nullify any prior decisions of any of the courts currently operating in Hawai‘i, so long as they are not inconsistent with local law.
On June 14, 2021, the Association of Hawaiian Evangelical Churches (AHEC) held a workshop on 128 Years of White Supremacy in Hawai‘i. AHEC is an association of 30 native churches and 6 partnerships that include, as partnership ministries, the State Sunday School Association, Pacific Justice and Reconciliation, Kamehameha Schools, State Council of Hawaiian Congregational Churches, Christian Endeavor and the Pacific American Ministries.
AHEC is a successor of the ‘Ahahui ‘Euanelio o Hawai‘i, also known as the Hawaiian Evangelical Association, that was established in 1854 in the Hawaiian Kingdom. Well known churches such as Kawaiaha‘o and Kaumakapili are members of AHEC.
Presenters included Wendell Davis (AHEC Papa Makua), Ron Fujiyoshi, Pualani Muraki, Kalaniakea Wilson, and special guests Joyclynn Costa, Rev. Dr. David Popham, Dr. Ron Williams, Dr. Keanu Sai.
Since the United States Congress enacted a joint resolution purporting to annex the Hawaiian Islands, which was signed by President McKinley into U.S. law on July 7, 1898, American municipal laws have been illegally imposed within the territorial jurisdiction of the Hawaiian Kingdom. U.S. constitutional scholar, Westel Willoughby, wrote at the time of the purported annexation by legislative act:
The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in the Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act…Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.
westel woodbury willoughby, the constitutional law of the United states §239 (1929).
Along the same lines, the Hawaiian Kingdom Supreme Court, in In re Francis de Flanchet in 1858, stated that the “laws of a nation cannot have force to control the sovereignty or rights of any other nation within its own jurisdiction. And however general and comprehensive the phrases used in the municipal laws may be, they must always be restricted in construction, to places and persons upon whom the Legislature have authority and jurisdiction.” There is no treaty transferring Hawaiian territory to the United States. As such, the Hawaiian Kingdom continued to exist as an independent State that was acknowledged by the United States in arbitral proceedings before the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom despite the unlawful overthrow of its government by the United States on January 17, 1893.
On the subject of the 1898 joint resolution of annexation of the Hawaiian Islands, the U.S. Department of Justice’s Office of Legal Counsel, after covering the territorial limits of legislative acts, concluded in a 1988 legal opinion, “It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.” The complaint states:
International law at the time obligated the United States to administer Hawaiian Kingdom law after it unlawfully overthrew the Hawaiian Kingdom Government. The law of occupation was triggered after the United States, as the occupying State, secured effective control over Hawaiian territory. This effective control began when Queen Lili‘uokalani conditionally surrendered to the United States President on January 17, 1893. The Queen stated:
Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.
UNITED STATES HOUSE OF REPRESENTATIVES, 53RD CONGRESS, EXECUTIVE DOCUMENTS ON AFFAIRS IN HAWAII: 1894-95 (1895), 586.
President Cleveland initiated a presidential investigation on March 11, 1893 by appointing Special Commissioner James Blount to travel to the Hawaiian Islands and to provide periodic reports to the U.S. Secretary of State Walter Gresham. Commissioner Blount arrived in the Islands on March 29th, where he “directed the removal of the flag of the United States from the government building and the return of the American troops to their vessels.” His first report was dated April 6, 1893, and his final report was dated July 17, 1893. On October 18, 1893, Secretary of State Gresham notified the President:
The Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.
The earnest appeals to the American minister for military protection by the officers of that Government, after it had been recognized, show the utter absurdity of the claim that it was established by a successful revolution of the people of the Islands. Those appeals were a confession by the men who made them of their weakness and timidity. Courageous men, conscious of their strength and the justice of their cause, do not thus act. …
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…
Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice.
UNITED STATES HOUSE OF REPRESENTATIVES, 53RD CONGRESS, EXECUTIVE DOCUMENTS ON AFFAIRS IN HAWAII: 1894-95 (1895), 462-463.
When negotiations began at the U.S. Legation in Honolulu on November 13, 1893, U.S. Minister Albert Willis stated to the Queen the position taken by the President after a full investigation. Willis expressed “the President’s sincere regret that, through the unauthorized intervention of the United States, she had been obliged to surrender her sovereignty, and his hope that, with her consent and cooperation, the wrong done to her and to her people might be redressed.” “To this,” Willis noted, “she bowed her acknowledgements.” Negotiations continued for another month. The illegality of the overthrow was due to the international principle of non-intervention in the internal affairs of another State.
President Cleveland delivered a manifestoto the Congress on his investigation into the overthrow of the Hawaiian Government on December 18, 1893. The President concluded that the “military occupation of Honolulu by the United States…was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.” He also determined “that the provisional government owes its existence to an armed invasion by the United States.” Finally, the President admitted that by “an act of war…the Government of a feeble but friendly and confiding people has been overthrown.” Referring to the annexation plot of the insurgents, Cleveland concluded “that the United States could not, under the circumstances disclosed, annex the islands without justly incurring the imputation of acquiring them by unjustifiable methods.”
Unbeknownst to the President, an agreement of peace was reached on the very same day Cleveland gave his manifesto to the Congress. Gresham acknowledged receipt of Willis’ dispatch of the agreement dated December 20, 1893, in a telegram of January 12, 1894, in which he stated, “Your reports show that on further reflection the Queen gave her unqualified assent in writing to the conditions suggested.” According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the constitutional sovereign, and the Queen agreed, after being restored, to grant a full pardon to the insurgents. As a constitutional monarch, however, the agreement required an additional signature of a cabinet minister to make it binding under Hawaiian constitutional law. Article 42 of the 1864 Constitution provides, “No act of the [Monarch] shall have any effect unless it be countersigned by a Minister, who by that signature makes himself responsible.”
The United States neither complied with international humanitarian law and the law occupation nor did it carry out the international agreement of restoring Queen Lili‘uokalani as the Executive Monarch. Instead, the United States concealed this history and the unlawful seizure of Hawaiian territory by embarking on a sinister plan of denationalization through Americanization across the Hawaiian Islands in 1906. This plan was implemented throughout the schools, both public and private, in a deliberate effort to brainwash school children into believing they are American citizens and that Hawai‘i sought to be incorporated as a U.S. territory.
Within three generations since its implementation, the national consciousness of the Hawaiian Kingdom had become erased. This was the ultimate aim of the insurgency, which was evidenced in the record of a Council of State meeting of the so-called Republic of Hawai‘i in 1895. Samuel Damon, who served as the group’s Vice-President, stated, “If we are ever to have peace and annexation the first thing to do is to obliterate the past.” According to political scientist Lorenz Gonschor,
American indoctrination of the people of Hawai‘i had profound negative consequences not only on Hawaiian culture and identity, but also on the islands’ historiography. As soon as the Missionary Party—or, as loyalist newspaper editor Edmund Norrie called them, the American Mafia—had taken the reins of power, they began to systemically rewrite the country’s history and obscure and discredit the achievements of the Hawaiian Kingdom.
Lorenz Gonschor, a Power in the world: the Hawaiian Kingdom in Oceania (2019), 158.
This obliteration of Hawaiian national consciousness had effectively erased, in the minds of generations to date, the United States invasion of the Hawaiian Kingdom on January 16, 1893, and the unlawful overthrow of Hawaiian government the day after. In order to better understand the effects of denationalization download Dr. Keanu Sai’s article published by the University of Hawai‘i at Mānoa’s Hawaiian Journal of Law and Politics titled “Setting the Record Straight on Hawaiian Indigeneity.”
International humanitarian law views denationalization within the occupied territory as a war crime. According to Professor William Schabas, denationalization is one of the war crimes currently being committed in Hawai‘i, which are “actions directed at the destruction of the national identity and national consciousness of the population” of the Hawaiian Kingdom. The unlawful imposition of American municipal laws for over a century since 1898 is also the war crime of usurpation of sovereignty. Professor Schabas also stated, “the Occupying Power must not change the demographic, social and political situation in the territory it has occupied to the social and economic detriment of the population living in the occupied territory.” The unlawful imposition of American municipal laws did radically change the “demographic, social and political situation” of the Hawaiian Kingdom.
On May 20, 2021, Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, filed a complaint for declaratory and injunctive relief (Hawaiian Kingdom v. Biden et al.). Defendants named in the complaint include President Joseph Biden and other officers of the United States Federal government, the State of Hawai‘i and Counties and its officers, as well as 32 foreign consulates unlawfully established in the Hawaiian Kingdom, which include Australia, Austria, Bangladesh, Belgium, Brazil, Chile, Czech Republic, Denmark, Finland, France, Germany, Hungary, India, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Norway, Philippines, Poland, Portugal, Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, and Thailand.
What is significant about this action taken by the Council of Regency, as the government of the Hawaiian Kingdom, is that the United States Federal Court cannot invoke the political question doctrine that would be the basis for dismissal. The political question doctrine is where there is a question as to the sovereignty of a country, the federal courts will defer the answer to this question by the President as head of the executive branch. Once the President, through its Department of State, explicitly recognizes the sovereignty of a country the courts are bound by that recognition.
In other words, since the United States, by its embassy in the Netherlands which is a member of the Permanent Court of Arbitration (PCA) Administrative Council, explicitly recognized the Hawaiian Kingdom as a non-Contracting State in accordance with article 47 of the 1907 PCA Convention in the Administrative Council’s annual reports from 2000 to 2011, it answered the political question in the affirmative that the Hawaiian Kingdom continues to exist as an independent State and the Council of Regency is its government. The complaint explains:
102. The explicit recognition by the United States of the continued existence of the HAWAIIAN KINGDOM as a State and the Council of Regency as its government prevents the denial of this civil action in the courts of the United States under the political question doctrine. In Williams v. Suffolk Insurance Co., the Supreme Court rhetorically asked whether there could be “any doubt, that when the executive branch of the government, which is charged with our foreign relations…assumes a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department. In Sai v. Clinton and in Sai v. Trump the court erred when it invoked the political question doctrine. In both cases the plaintiff provided evidence of the Hawaiian Kingdom’s continuity by virtue of the proceedings at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom.
103. In Jones v. United States, the Supreme Court concluded that “[w]ho is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this Court, and has been affirmed under a great variety of circumstances.” As a leading constitutional scholar, Professor Corwin, concluded, “[t]here is no more securely established principle of constitutional practice than the exclusive right of the President to be the nation’s intermediary in its dealing with other nations.” The ‘executive’ did determine ‘[w]ho is the sovereign’ of the HAWAIIAN KINGDOM, and, therefore, since there is no political question, it ‘binds the judges, as well as all other officers, citizens, and subjects of that government.’
Not only did the United States explicitly recognized the continuity of the Hawaiian Kingdom as a member of the PCA Administrative Council but also the other 32 countries that have unlawfully established foreign consulates in Hawaiian territory. These 32 countries along with the United States are members of the PCA Administrative Council. As a result, the named defendants and the U.S. Federal Court are prevented from raising the political question doctrine. To understand how the United States explicitly recognized the continuity of the Hawaiian Kingdom see the Preliminary Report of the Royal Commission of Inquiry.
Under the first Count (Supremacy Clause) of the cause of action in the complaint, the Defendant State of Hawai‘i is prohibited from “any curtailment or interference” of the Defendant United States of America’s explicit recognition of the Council of Regency as the government of the Hawaiian Kingdom.
Under the second Count (Usurpation of Sovereignty) of the cause of action in the complaint, in enacting and implementing the laws of the United States, to include the laws of the State of Hawai‘i and its Counties, i.e., the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statutes, County ordinances, common law, case law, administrative law, and the maintenance of United States military installations, Defendants who are officers of the Federal, State and County governments have exceeded their statutory authority, engaged in violating the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation, the 197 Hague Regulations, the 1907 Hague Convention, V, and the 1949 Fourth Geneva Convention, and has failed to comply with international humanitarian law by administering the laws of the Hawaiian Kingdom, which include the 1864 constitution, statutes, common law, case law, and administrative law.
Under the third Count (Pillaging and Destruction of Property) of the cause of action in the complaint, international humanitarian law prohibits pillaging and destruction of property through the collection of taxes that are exacted from the residents of the Hawaiian Kingdom by the Internal Revenue Service of the Defendant United States of America and the Department of Taxation of the Defendant State of Hawai‘i in violation of Article 8 of the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation, Article 43 of the 1907 Hague Regulations, and Article 64 of the 1949 Fourth Geneva Convention.
Under the final Count (Exequaturs) of the cause of action in the complaint, international humanitarian law prohibits usurpation of sovereignty by granting exequaturs to foreign consulates under American municipal law within the territory of the Hawaiian Kingdom in violation of the Article 8 of the 1849 Hawaiian-America Treaty of Friendship, Commerce and Navigation, Article 43 of the 1907 Hague Regulations, and Article 64 of the 1949 Fourth Geneva Convention.
The Hawaiian Kingdom is asking the Court to:
Declare that all laws of the Defendants United States of America and the State of Hawai‘i and its Counties, to include the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statute, County ordinances, common law, case law, administrative law, and the maintenance of Defendant United States of America’s military installations are unauthorized by, and contrary, to the Constitution and Treaties of the United States;
Enjoin Defendants from implementing or enforcing all laws of the Defendant United States of America and the State of Hawai‘i and its Counties, to include the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statute, County ordinances, common law, case law, administrative law, and the maintenance of Defendant United States of America’s military installations across the territory of the Hawaiian Kingdom, to include its territorial sea;
Enjoin Defendants who are or agents of foreign diplomats from serving as foreign consulates within the territorial jurisdiction of the Hawaiian Kingdom until they have presented their credentials to the Hawaiian Kingdom Government and received exequaturs; and
Award such additional relief as the interests of justice may require.
On May 21, 2021, an Order was signed by Chief Judge J. Michael Seabright setting a scheduling conference over the telephone at 9:00am on July 19, 2021 before Magistrate Judge Rom Trader.
The Hawaiian Journal of Law and Politics (HJLP) at the University of Hawaiʻi at Mānoa just published its third volume. Itʻs last edition, volume 2, was published back in the summer of 2006. The journal is published by the Hawaiian Society of Law and Politics (HSLP) which is a student organization at the university comprised of students, faculty and staff at the University of Hawai‘i at Mānoa.
HSLP was founded as a registered independent organization under Co-curricular Activities, Programs, and Services at the University of Hawaiʻi at Mānoa in October 30, 2003. In 2014, the organization had disbanded, only to be revived in the Spring of 2021 with an all-new membership.
