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.
Dr. Keanu Sai will be covering in his presentation some of the subjects in his latest article “Setting the Record Straight on Hawaiian Indigeneity” that was recently published in volume 3 of the Hawaiian Journal of Law and Politics at the University of Hawai‘i at Manoa. Dr. Sai asked that everyone read the article before his presentation on April 8, 2021.
Explicit Recognition by the United States of America of the Continued Existence of the Hawaiian Kingdom and its government—the Council of Regency
HONOLULU, 5 April 2021 — On 15 March 2021, Dr. David Keanu Sai, Chairman of the Council of Regency, and Mrs. Kau‘i Sai-Dudoit, Minister of Finance, was notified that the “Securities Commission of the State of Hawaii is about to commence an enforcement action against [them] based upon the sale of unregistered Kingdom of Hawaii Exchequer Bonds, in violation of HRS § 485A-301.” In § 485A-201(2) of the statute it states that bonds issued “by a foreign government with which the United States maintains diplomatic relations” are exempt.
The State of Hawai‘i has taken the dubious position that the Council of Regency is not a government and that the Hawaiian Kingdom does not exist. This position, however, runs counter to the United States explicit recognition of the continuity of the Hawaiian Kingdom, as a State, and its government—the Council of Regency, when arbitral proceedings were instituted at the Permanent Court of Arbitration (PCA) on 8 November 1999 in Larsen v. Hawaiian Kingdom. This explicit recognition by the United States has serious consequences for the State of Hawai‘i because it triggered the Supremacy Clause under federal law, where “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
The United States Supreme Court, in United States v. Curtiss-Wright Export Corp., stated that the rule of the Supremacy Clause holds “in the case of international compacts and agreements [when it forms] the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.”
Attached to this press release is a Preliminary Report of the Royal Commission of Inquiry that explains not only the United States explicit recognition of the Council of Regency and the continued existence of the Hawaiian Kingdom, but also by the explicit recognition by the other treaty partners of the Hawaiian Kingdom, which includes Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, and Switzerland.
The Supremacy Clause has rendered the State of Hawai‘i incapacitated because under international law, congressional acts, which includes the 1959 Statehood Act, have no effect in the territory of a foreign State unless it has the consent by the government of that State. There is no consent from the Hawaiian government since 1893 that would allow American municipal laws to have any effect within the territory of the Hawaiian Kingdom. This was precisely the dispute between Larsen and the Council of Regency. As the PCA stated:
Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.
American municipal laws include the constitution and laws of the State of Hawai‘i. Under international criminal law, the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty. War crimes have no statute of limitation and a person who commits a war crime can be prosecuted even after 50 years from the time the war crime was committed. Under international law, war criminals are subjected to be prosecuted by all States when they enter the State’s territory even though the crimes were committed outside of their territories. Finland and Switzerland are currently prosecuting war criminals for crimes committed in Liberia.
The only way for the State of Hawai‘i and its Counties to continue to govern is in accordance with international humanitarian law and the law of occupation. From a domestic standpoint, the Supremacy Clause renders the existence of the State of Hawai‘i unconstitutional and void because its existence is in conflict with treaties that the United States has ratified, which includes the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation. To continue to govern would be to transform themselves into an occupying government within the limits and what is allowed under international law.
In a letter of correspondence from Dr. Sai, as Head of the Royal Commission of Inquiry (RCI), to State of Hawai‘i Attorney General Clare E. Connors, dated 2 June 2020, the Attorney General was notified that:
I am not aware whether you were informed of three meetings I had in 2015 with Mike McCartney, former chief of staff for Governor David Ige, at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. This prompted a report I submitted to him that summarized what we discussed in those three meetings and how the State of Hawai‘i has a duty, under international humanitarian law, to transform itself into a Military government by virtue of Article V, section 5 of the Constitution of the State of Hawai‘i. United States practice for Military government is covered in United States Army and Navy FM 27-5, and occupation of an occupied State is covered in FM 27-10. The Adjutant General, MG Kenneth Hara, should be aware of these regulations and the function of a Military government.
These are not normal times but you are the legal advisor to the Governor, and due to the severity of the situation under international criminal law and the material elements of mens rea and actus reus, I respectfully implore you to carefully review the information I have provided you and to advise the office of the Governor accordingly. Under international humanitarian law, decisions on this matter are not with the federal government nor is it with its military here in the islands, but solely on the shoulders of the State of Hawai‘i as it is the entity in effective control of Hawaiian territory thereby triggering the law of occupation. I should also note that the governmental infrastructure of the State of Hawai‘i is that of the Hawaiian Kingdom. The only change was in name, e.g. the Department of Land and Natural Resources is the Ministry of the Interior. All that was changed in 1893 was the Queen and her cabinet, and the top law enforcement of the kingdom, being forcibly replaced by insurgents calling themselves the Executive and Advisory Councils.
Both the National Lawyers Guild (NLG) and the International Association of Democratic Lawyers (IADL) have called upon the State of Hawai‘i to transform itself into an occupying government. In its letter to Governor David Ige of 10 November 2020, the NLG stated:
We urge you, Governor Ige, to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to familiarize yourselves with the contents of the recent eBook published by the RCI and its reports that comprehensively explains the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.”
In its resolution of 7 February 2021, the “IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to ‘proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2104 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”
The actions taken by the State of Hawai‘i against government officials of the Hawaiian Kingdom also constitutes a violation of Article 54 of the Fourth Geneva Convention, which states, “The Occupying Power may not alter the status of public officials…in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against the them.” The Fourth Geneva Convention was ratified by the United States Senate on 6 July 1955 and came into force on 2 February 1956. As such, the Fourth Geneva Convention comes under the Supremacy Clause.
In light of the awareness of the occupation by the leadership of the State of Hawai‘i, these allegations against the Hawaiian government officials constitute malicious intent. As pointed out by Professor Lenzerini, under the rules of international law, “the working relationship between the Regency and the administration of the occupying State would have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory.” This unwarranted attack is a violation of the law of occupation, and as a proxy for the United States, it also constitutes an international wrongful act.
The following resolution was adopted by the IADL Council, in virtual session, on 7 February 2021:
IADL RESOLUTION CALLING UPON THE UNITED STATES TO IMMEDIATELY COMPLY WITH INTERNATIONAL HUMANITARIAN LAW IN ITS PROLONGED OCCUPATION OF THE HAWAIIAN ISLANDS—THE HAWAIIAN KINGDOM
The International Association of Democratic Lawyers (IADL) is a non-governmental organization of human rights lawyers founded in 1946, with member associations throughout the world and with consultative status in ECOSOC. IADL is dedicated to upholding international law and promoting the tenets of the UN Charter in furtherance of peace and justice.
The IADL strongly condemns the January 1893 invasion of the Hawaiian Kingdom by the United States and its subsequent unlawful and prolonged occupation to date, a clear violation of customary international law at the time, which is currently set out in Article 2(4) of the Charter of the United Nations prohibiting the use of force. The IADL has always been a proponent of the rule of law and a State’s obligation to comply with international humanitarian law, which includes the law of occupation.
In 2001, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, stated “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.”  The Hawaiian Kingdom currently has treaties with Austria, Belgium, Bremen, Denmark, France, Germany, Great Britain, Hamburg, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, Switzerland and the United States.  The Hawaiian Kingdom also became a member of the Universal Postal Union on January 1, 1882.
After completing an investigation into the United States role in the overthrow of the Hawaiian Kingdom government on January 17, 1893, President Cleveland apprised the Congress of his findings and conclusions. In his message to the Congress, he stated, “And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.”  The President concluded, that “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.” 
This invasion coerced Queen Lili‘uokalani, executive monarch of the Hawaiian Kingdom, to conditionally surrender to the superior power of the United States military, where she 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.” The President acknowledged that by “an act of war…the Government of a…friendly and confiding people has been overthrown.” 
Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13, 1893 through December 18, 1893, an agreement of peace was reached.  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. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.
Five years later, at the height of the Spanish-American War, President Cleveland’s successor, William McKinley, signed a congressional joint resolution of annexation on July 7, 1898, unilaterally seizing the Hawaiian Islands for military purposes. In the Lotus case, the Permanent Court of International Justice stated that “the first and foremost restriction imposed by international law upon a State is that…it may not exercise its power in any form in the territory of another State.” 
This rule of international law was acknowledged by the Supreme Court in UnitedStates v. Curtiss-Wright, Corp. (1936), when the court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.”  In 1988, the U.S. Department of Justice’s Office of Legal Counsel concluded, it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.” 
Under international law, “a disguised annexation aimed at destroying the independence of the occupied State, represents a clear violation of the rule preserving the continuity of the occupied State.” 
Despite the limitations of United States legislation, the Congress went ahead and enacted the Territorial Act (1900) changing the name of the governmental infrastructure to the Territory of Hawai‘i.  Fifty-nine years later, the Congress changed the name of the Territory of Hawai‘i to the State of Hawai‘i in 1959 under the Statehood Act.  The governmental infrastructure of the Hawaiian Kingdom continued as the governmental infrastructure of the State of Hawai‘i.
On February 25, 2018, United Nations Independent Expert, Dr. Alfred M. deZayas, in his communication with members of the State of Hawai‘i Judiciary wrote, “I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the laws of the occupier (the United States).” 
The IADL fully supports the National Lawyers Guild’s 2019 resolution that “calls upon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.”  Together with the National Lawyers Guild (NLG):
IADL strongly condemns the prolonged and illegal occupation of the Hawaiian Islands.
IADL also condemns the unlawful presence and maintenance of the United States Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands.
IADL calls for the United States to immediately comply with international humanitarian law and begin to administer the laws of the Hawaiian Kingdom as the occupied State.
IADL calls on the legal and human rights community to view the United States presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.
IADL supports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai‘i and its Counties comply with international humanitarian law as the administration of the Occupying State.
IADL calls on all United Nations member States and non-member States to not recognize as lawful a situation created by a serious violation of international law, and to not render aid or assistance in maintaining the unlawful situation. As an internationally wrongful act, all States shall cooperate to ensure the United States complies with international humanitarian law and consequently bring to an end the unlawful occupation of the Hawaiian Islands.
The IADL recognizes that the United States’ violations of international humanitarian law have led to the commission of war crimes and human rights violations in the Hawaiian Islands. The IADL also recognizes that the civilian population in the Hawaiian Islands are “protected persons” and their rights during a belligerent occupation are vested in the 1949 Fourth Geneva Convention and the 1977 Additional Protocol.
For the restoration of international law and the tenets of the UN Charter, the IADL calls upon the United States to immediately comply with international humanitarian law and the law of occupation in its prolonged and illegal occupation of the Hawaiian Islands.
The IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.” 
IADL reiterates that supporting the tenets of the UN Charter also means that member States must comply with the Articles of State Responsibility for Internationally Wrongful Acts (2001).  The U.S. violation of the Hawaiian Kingdom’s sovereignty and its failure to comply with international humanitarian law for over a century is an internationally wrongful act. As such, member States have an obligation to not “recognize as lawful a situation created by a serious breach…nor render aid or assistance in maintaining that situation,”  and member States “shall cooperate to bring to an end through lawful means any serious breach [by a member State of an obligation arising under a peremptory norm of general international law].” 
To download a copy of the IADL resolution go to this link.
Join the NLG International Committee’s CLE program on Monday, Sept. 21, 2020, as part of the NLG Convention!
The four-hour CLE will take place at 9 am Pacific/12 pm Eastern time. To participate in the CLE, you must register for the NLG Convention. You can attend all Convention events as part of your registration – just follow the directions to create your schedule!
Please note, the NLG Convention is open to members and non-members! Sliding scale registration is available, with registration for the entire, all-digital convention beginning at $25 for NLG members and $50 for non-members. If you need a fee waiver in order to attend the CLE or the Convention as a whole, please contact email@example.com to request a fee waiver or reduction.
Four CLE credits are available for this program, with presentations on humanitarian and human rights law and the U.S. occupations of Hawai’i, Afghanistan and Iraq, and Israel’s occupation of Palestine. (CLE Credit will be given through the State Bar of CA. After the convention, the NLG will be emailing out attendance verification forms to all attendees.)
On January 17, 1893, the Hawaiian Kingdom was invaded and its government overthrown by the United States empire, beginning a 126-year occupation and unlawful annexation of the Pacific nation. On October 7, 2001, the United States invaded the Islamic Republic of Afghanistan, overthrew its government, and began a 19-year occupation of that Middle Eastern nation. Less than two years later on March 20, 2003, under the pretext that the Republic of Iraq had failed to abandon its weapons of mass destruction, the United States led the invasion, overthrow and continuing occupation of Iraq. The Israeli occupation of Palestine, continuing since 1947 and marked by the Nakba in 1948 when more than 700,000 Palestinians were forceably expelled from their homes and lands, has evolved, with full political and economic support of the U.S., into a belligerent expansion and occupation of territory of Palestine, Jordan, and Syria.
International humanitarian law, also known as the law of war or armed conflict, is the legal framework applicable to situations of armed conflict and occupation. An esteemed panel of international law experts will discuss and examine the application of these rules of law to illegal wars and occupations involving the United States. The panel will discuss the law of occupation which governs the relationship between the occupying power and those subject to belligerent occupation as well as the interplay between humanitarian law and international human rights law. The panel will also cover the legal mechanisms and remedies available to occupied peoples and nations, including Hawaii, Afghanistan, Iraq, and Palestine, to challenge continuing occupation and violations of humanitarian and human rights.
Valentina Azarova, Ph.D. is an international legal academic and practitioner, who teaches and writes on foreign territorial control and the law of third state responsibility. She is Visiting Academic at the University of Manchester International Law Centre (England) and Associate Editor of the Oxford Reports on International Human Rights Law and United Nations Treaty Bodies. Dr. Azarova is legal advisor to the Global Legal Action Network and has over a decade of experience documenting and engaging in legal actions and advocacy to challenge processes of structural violence of armed conflict and occupation with a focus on third party complicity. She has worked with and regularly advises UN bodies and fact-finding missions, states and non-governmental organizations. She is the author of numerous articles on humanitarian law including that law of prolonged belligerent occupations and Israel’s occupation of Palestine. She co-founded the Human Rights and International law program at Al-Quds Bard College (Palestine) and has held positions at Birzeit University (Ramallah), and in Lebanon, Budapest, and Istanbul. She received her Ph.D. from the National University of Ireland’s Irish Centre for Human Rights.
Marjorie Cohn is professor emerita at the Thomas Jefferson School of Law (San Diego) and a former president of the National Lawyers Guild. Professor Cohn has written extensively on war and humanitarian law, particularly on torture and targeted killings. She is the author of numerous law review articles and five books. In 2010, Professor Cohn debated the legality of the war in Afghanistan at the prestigious Oxford Union. A lifelong peace activist, Professor Cohn has provided expert testimony on the law of war and is the recipient of 2008 Peace Scholar of the Year Award from the Peace and Justice Studies Association among other awards for her work. She received her J.D. from the Santa Clara University School of Law.
Federico Lenzerini, Ph.D., is an associate professor of public international law and international human rights law at the University of Siena (Italy), a professor in the intercultural human rights program of the St. Thomas University School of Law (Miami). He is a UNESCO consultant and has served as a Rapporteur on the Rights of Indigenous Peoples. He is the author or editor of over one hundred academic articles and seven books. He received his Doctor of Law degree from the University of Siena and his Ph.D. degree in international law from the University of Bari (Italy).
Keanu Sai, Ph.D. is the Chairman of the Council of Regency and Acting Minister of the Interior of the provisional government of the Hawaiian Kingdom. Dr. Sai served as Agent for the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom. He is the editor of the recent book, Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. Dr. Sai received his Ph.D. and M.A. degrees in political science specializing in international relations and public law from the University of Hawai’i where he also teaches. Dr. Sai co-chairs the Hawaiian Kingdom Subcommittee of the International Committee of the NLG.
In response to the prolonged occupation of the Hawaiian Kingdom by the United States since 1893, and the commission of war crimes and human rights violations that continue to take place with impunity, the Royal Commission of Inquiry was established by the Council of Regency on April 17, 2019. The Council of Regency represented the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01, from 1999-2001. The Royal Commission’s mandate is to “ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.”
Dr. David Keanu Sai was appointed as Head of the Royal Commission and he has commissioned recognized experts in various fields of international law who are the authors of chapters 3, 4 and 5 of this publication. These experts include Professor Matthew Craven, University of London, SOAS; Professor William Schabas, Middlesex University London; and Professor Federico Lenzerini, University of Siena.
Its first 378 page publication, Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations in the Hawaiian Kingdom, provides information on the Royal Commission of Inquiry, Hawaiian Constitutional Governance, the United States Belligerent Occupation of the Hawaiian Kingdom, the Continuity of the Hawaiian Kingdom as a State, Elements of War Crimes committed in the Hawaiian Kingdom, and Human Rights violations and Self-determination. The Royal Commission will provide periodic reports of its investigation of war crimes committed by individual(s) that meet the constituent elements of mens rea and actus reus, and human rights violations.
There is no statute of limitation for war crimes but it is customary for individual(s) to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals. As a matter of customary international law, States are under an obligation to prosecute individuals for the commission of war crimes committed outside of its territory or to extradite them for prosecution by other States or international courts should they enter their territory.
**The book is free of charge and authorization is given, in accordance with its copyright under Hawaiian law, to print in soft-cover or hard-cover so long as the content of the book is not altered or edited.
This past Monday
defense lawyers Dexter Kaiama and Stephen Laudig filed their response to the
State of Hawai‘i Attorney General’s opposition to their clients’ motion to
dismiss. They argued that the Attorney General “cannot be allowed to knowingly
and with intent benefit from the ‘war crime’ of usurpation of sovereignty that
consists in the ‘imposition of legislation or administrative measures by the
occupying power,’ which, in effect, leads to the violation of international law
by denying a Protected Person of the right to a fair and regular trial by a
properly constituted court. The prohibition of ‘war crimes’ is a jus cogens
norm under customary international law and neither the [Attorney General] nor
this Court can derogate from these peremptory norms.”
Kaiama and Laudig represent Deena Oana-Hurwitz, Loretta and Walter Ritte, Pualani Kanakaole-Kanahele, Kaliko Kanaele, Gene P.K. Burke, Alika Desha and Desmon Haumea. Both attorneys are also members of the National Lawyers Guild that “provides legal support to the movement demanding that the U.S., as the occupier, comply with international humanitarian and human rights law within Hawaiian Kingdom territory, the occupied.”
After state law enforcement officers
arrested 39 Kia‘i Mauna (protectors of the mountain) who were opposing
the building of the Thirty-Meter Telescope (TMT) on Mauna Kea on July 17, 2019,
the Attorney General filed charges of obstruction in the Hilo District Court.
On behalf of the 8 defendants, Kaiama and Laudig filed their motions to dismiss
on November 13, 2019, which provided clear and unequivocal evidence that
because the Hawaiian Kingdom continues to exist under international law the
District Court “is not a regularly constituted court” and therefore does not
have lawful jurisdiction to preside over the case.
An opposition to the motion to
dismiss was filed by the Attorney General on December 6, 2019. In its
opposition, the Attorney General provided no counter evidence of the Hawaiian
Kingdom’s existence and that the Hawaiian Islands have never been lawfully a
part of the United States. Instead, the Attorney General argues three points as
to why Judge Kanani Lauback should deny defendants’ motion to dismiss. The
first argument is that the political question doctrine prevents courts from
adjudicating the legality of the overthrow of the Hawaiian Kingdom and the
validity of the State of Hawai‘i. Second, the legal status of the State of
Hawai‘i has been adjudicated. And, third, international law does not override
acts of Congress.
On December 9, Kaiama and Laudig
filed a reply that starts off by stating that the Attorney General’s “statement
of relevant facts violates the principle of jus cogens and is not relevant to
the Court’s consideration of the instant motion.” Jus cogens is a legal
term that federal courts say “enjoy[s] the highest status within international
law,” and as such cannot be denigrated. International crimes, which includes
war crimes, are jus cogens norms.
In its reply, the defense pointed out that the unlawful imposition of United States laws and administrative policies constitute a war crime under customary international law. For their evidence, the defense cited a legal opinion written by Professor William Schabas, a leading expert in international criminal law and war crimes, titled Legal opinion on war crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893. The defense argues that all “three fit squarely within the provisions of United States internal law—being legislation and administrative rules, which customary international law precludes a State from invoking as justification for its failure to comply with Article 43 of the Hague Regulations.” Article 43 of the Hague Regulation is a ratified treaty by the United States that obligates an Occupying State to administer the laws of the Occupied State. In this case the Occupying State is the United States and the Occupied States is the Hawaiian Kingdom.
A hearing on the motion to dismiss is scheduled for 8:30am on Friday, December 13, 2019, at the Hilo District Court.
The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.
Invalidity of General Lease No. S-4191
Under General Lease No.
S-4191 dated June 21, 1968, the Board of Land and Natural Resources of the
State of Hawai‘i, as lessor, issued a 65-year lease to the University of
Hawai‘i with a commencement date of January 1, 1968 and a termination date of
December 31, 2033. The lease is comprised of 11,215.554 acres, more or less,
being a portion of Government lands of the ahupua‘a of Ka‘ohe situated at
Hamakua, Island of Hawai‘i identified under Tax May Key: 3rd/4.4.15:09.
The State of Hawai‘i claims
to have acquired title under Section 5(b) of the 1959 Hawai‘i Admissions Act,
Public Law 86-3 (73 Stat. 4), whereby “the United States grants to the State of
Hawaii, effective upon its admission into the Union, the United States’ title
to all public lands and other public property within the boundaries of the
State of Hawaii, title to which is held by the United States immediately prior
to its admission into the Union.” The United States derives its title from the
1898 Joint Resolution of Annexation (30 Stat. 750), which states
“Whereas the Government of the Republic of Hawaii having, in due form,
signified its consent, in the manner provided by its constitution…to cede and
transfer to the United States the absolute fee and ownership of all public,
Government, or Crown lands.”
The Republic of Hawai‘i proclaimed
itself on July 3, 1894, by a convention comprised of appointed members of the
Provisional Government and eighteen “elected” delegates. The Provisional
Government proclaimed itself on January 17, 1893 and claimed to be the
successor of the Hawaiian Kingdom. The Hawaiian Kingdom’s title derives from
the 1848 Act Relating to the Lands of His Majesty The King and of the
Government, whereby the ahupua‘a of Ka‘ohe is “Made over to the Chiefs and
People, by our Sovereign Lord the King, and we do hereby declare those lands to
be set apart as the lands of the Hawaiian Government, subject always to the
rights of tenants.”
According to President Grover
Cleveland, in his message to the Congress after investigating the illegal
overthrow of the Hawaiian Kingdom government that took place on January 17,
1893, the Provisional Government “was neither a government de facto nor de
jure.” He did
not consider it a government. The President also concluded that “the
provisional government owes its existence to an armed invasion by the United
States.” Being a
creature, or creation, of the US, it could not claim to be the lawful successor
of the Hawaiian Kingdom government with vested title to the ahupua‘a of Ka‘ohe.
As the successor to the Provisional Government, the Republic of Hawai‘i, as it
self-declared successor, could not take any better title than the Provisional
Government and hence did not have title to Ka‘ohe. The U.S. Congress in the
1993 Apology Resolution noted that the Republic of Hawai‘i was “self-declared.”
The United States claims to
have acquired title to Ka‘ohe, by cession, from the Republic of Hawai‘i under
the 1898 Joint Resolution of Annexation. International law recognizes that the
“only form in which a cession can be effected is an agreement embodied in a
treaty between the ceding and the acquiring State.” The Joint Resolution of
Annexation is not “an agreement embodied in a treaty.” It is a U.S. municipal
law from the Congress merely asserting that cession took place. The situation
is not unlike a neighbor holding a family meeting and claiming that they have
agreed that your house is now their house.
In a debate on the Senate
floor on July 4, 1898, Senator William Allen stated:
The Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated. In other words, the Constitution and statutes can not reach across the territorial boundaries of the United States into the territorial domain of another government and affect that government or persons or property therein.
The joint resolution is ipso facto null and void.
In 1988, the U.S. Department
of Justice, Office of Legal Counsel (“OLC”) issued a legal opinion on the
lawfulness of the annexation of Hawai‘i by a joint resolution. In its
opinion, it cited constitutional scholar Westel Willoughby:
The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was 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.
The OLC concluded, “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 United States cannot produce
any evidence of a conveyance of the ahupua‘a of Ka‘ohe from a grantor, vested
with the title. All it can produce is a joint resolution of Congress. This is
not a conveyance from a foreign State ceding territory.
Instead of providing evidence
of a conveyance of territory, i.e. treaty of cession, the State of Hawai‘i
Supreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT,
SCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of
Hawai‘i written by Professor Jon Van Dyke.
The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawaiʻi by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196 (1901), that “territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.
It is unclear what Professor
Van Dyke meant when he stated that the U.S. Supreme Court “gave tacit
recognition to the legitimacy of the annexation of Texas and Hawai‘i by joint
resolution,” because tacit, by definition, is to be “understood without being
openly expressed or stated.”
Furthermore, this statement is twice irrelevant: first, the Court as a third
party to any cession of foreign territory has no standing to make such a
conclusion as to what occurred between the ceding and receiving States; and,
second, its opinion is a fabrication or what American jurisprudence calls a
legal fiction. Legal fictions treat “as true a factual assertion that plainly
was false, generally as a means to avoid changing a legal rule that required a
particular factual predicate for its application.”
According to Professor Smith,
a “judge deploys a new legal fiction when he relies in crafting a legal rule on
a factual premise that is false or inaccurate.” These “new legal fictions
often serve a legitimating function, and judges may preserve them—even in the
face of evidence that they are false—if their abandonment would have
The proposition that Texas
and Hawai‘i were both annexed by joint resolutions of Congress is clearly
false. In the case of Texas, Congress consented to the admission of Texas as a
State by joint resolution on March 1, 1845 with the following proviso, “Said
State to be formed, subject to the adjustment by this government of all
questions of boundary that may arise with other governments.” This condition
was referring to Mexico because as Texas was comprised of insurgents who were
fighting for their independence, Mexico still retained sovereignty and title to
the land. In its follow up joint resolution on December 29, 1845 that admitted
Texas as a State of the Union, it did state that the Congress consented “that
the territory properly included within, and rightfully belonging to, the
Republic of Texas.” These actions taken by the Congress is what sparked the
Mexican-American War in 1846.
Congress’ statement of
“rightfully belonging” is an opinion and the resolution mentions no boundaries.
The transfer of title to the territory, which included the territory comprising
Texas, came three years later on February 2, 1848 in a treaty of peace that
ended the Mexican-American War.
Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. “The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte.” Rio Brava del Norte is the southern tip of Texas. If Texas was indeed annexed in 1845 by a joint resolution with its territory intact, there was no reason for the treaty to specifically include the territory of Texas. If it were true that Texas territory was ceded in 1845, Article V of the treaty would have started the boundary line just west of the Texas city of El Paso, which is its western border, and not from the Gulf of Mexico at its southern border. The truth is that the territory of Texas was not annexed by Congress in 1845 but was ceded by Mexico in 1848. The Rio Grande river is the southern border for the State of Texas.
With regard to the so-called
annexation of Hawai‘i in 1898 by Congress, there is no treaty ceding Hawaiian
territory as in the case of Texas. Like the Texas resolution, Congress stated,
Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution to ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining…
The reference to consent by
its constitution is specifically referring to Article 32, which states, the
“President, with the approval of the Cabinet, is hereby expressly authorized
and empowered to make a Treaty of Political or Commercial Union between the
Republic of Hawaii and the United States of America, subject to the
ratification of the Senate.” There
is no treaty between the so-called Republic of Hawai‘i and the United States.
Furthermore, a constitutional provision is not an instrument of conveyance as a
treaty would be. So without a treaty from the Hawaiian Kingdom government as
the ceding State vested with the sovereignty and title to government lands,
which includes the ahupua‘a of Ka‘ohe, there was no change in the ownership of
the government lands.
Furthermore, Hawaiians of the
day knew there was no treaty as evidenced in the Maui News newspaper published
October 20, 1900. The Editor wrote,
Thomas Clark, a candidate for Territorial senator from Maui holds that it was an unconstitutional proceeding on the part of the United States to annex the Islands without a treaty, and that as a matter of fact, the Island[s] are not annexed, and cannot be, and that if the democrats come into power they will show the thing up in its true light and demonstrate that that the Islands are de facto independent at the present time.
The legal fiction that Texas
and Hawai‘i were annexed by a joint resolution of the Congress is just a patently
false when measured “against the results of existing empirical research.” For
the State of Hawai‘i Supreme Court to restate, and embrace, this falsifiable
legal fiction is simply a trick that allows it to fabricate its own false and falsifiable
fiction regarding the State of Hawai‘i. In its TMT decision the Court, in conflict
with overwhelming evidence, stated, “[W]e reaffirm that ‘[w]hatever may be said
regarding the lawfulness’ of its origins, ‘the State of Hawai‘i…is now a lawful
the State of Hawai‘i to be a “lawful government” it must be vested with lawful
authority absent of which it is not lawful. The State of Hawai‘i Supreme Court,
being a branch of the State of Hawai‘i itself, cannot declare it “is now a
lawful government” without making reference to some intervening factor that
vested the State of Hawai‘i with lawful authority.
When addressing the lawful
authority and sovereignty of the United States of America, the United States
Supreme Court specifically referred to a particular and significant intervening
factor. It stated that as “a result of the separation from Great Britain by the
Colonies, acting as a unit, the powers of external sovereignty passed from the
Crown not to the Colonies severally, but to the Colonies in their collective
and corporate capacity as the United States of America.” The Court was
referring to “the Treaty of Paris of September 3, 1783, by which Great Britain
recognized the independence of the United States.”
It has been erroneously assumed
that the US Congress vested the State of Hawai‘i with lawful authority in the
1959 Statehood Act in an
exercise of the constitutional authority of Congress to admit new States into
the Federal union under Article IV, section 3, clause 1. There is no provision
in the US constitution for the admission of a state to the union that is on
territory not owned by the US. So before the US Congress can admit a new State
to the US the US must “own” the territory. According to the United States
Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens…, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.
Since the Hawaiian Islands
were never annexed by the United States via treaty, Congressional acts, which are
municipal laws, may only operate on the territory of the United States. The
United States Supreme Court is relatively clear on this point and has stated
that the “municipal laws of one nation do not extend in their operation beyond
its own territory except as regards its own citizens.” In another decision, the
United States Supreme Court reiterated, that “our Constitution, laws and
policies have no extraterritorial operation unless in respect of our own
Under international law, the United
States is an occupying power in the Hawaiian Islands and as such the occupying
Power is obligated, under Article 43 of the 1907 Hague Convention, IV, and
Article 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom
laws. In his communication to the members of the Judiciary of the State of
Hawai‘i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred
deZayas, reiterated this obligation under international law.
I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States) (Enclosure “6”).
The United States never
acquired any kind of title to Ka‘ohe and, since one can only convey what one
has, it could not convey what it did not have to the State of Hawai‘i under
Section 5(b) of the 1959 Admissions Act. Thus the State of Hawai‘i was never
lawfully vested with any title to the ahupua‘a of Ka‘ohe, and therefore its so-called
general lease no. S-4191 to the University of Hawai‘i dated June 21, 1968 is
defective. Under Hawaiian Kingdom law, the ahupua‘a of Ka‘ohe is government
land under the management of the Ministry of
the Interior and not the State of Hawai‘i Board of Land and Natural
Resources. Consequently, all 10 subleases from the University of Hawai‘i that
extend to December 31, 2033 are defective as well, which include:
National Aeronautics and Space
Administration dated November 29, 1974;
Corporation dated December 18, 1975;
Science Research Council dated
January 21, 1976;
California Institute of Technology
dated December 20, 1983;
Science and Engineering Research
Council dated February 10, 1984;
California Institute of Technology
dated December 30, 1985;
Associated Universities, Inc., dated
September 28, 1990;
National Astronomical Observatory of
Japan dated June 5, 1992;
National Science Foundation dated
September 26, 1994; and
Smithsonian Institution dated
September 28, 1995.
As such, the University of Hawai‘i’s sublease to TMT International Observatory, LLC, is also defective. Therefore, the University of Hawai‘i cannot sublease what it does not have to TMT International Observatory LLC.
WAILUKU, Hawaii – In an urgent plea, Maui County Council member Tamara Paltin announced that she has asked University of Hawaii President David Lassner to put a hold on moving forward with the construction of the Thirty Meter Telescope (“TMT”) planned for the summit of Mauna Kea.
Paltin issued a letter of inquiry to President Lassner on Friday, July 12th in response to Governor Ige’s news conference last week announcing that construction would begin next week on July 15th. In her letter Paltin expressed “grave concerns for the safety of Maui County’s residents and all individuals mobilizing to access and assemble atop Mauna Kea.”
It is anticipated that kupuna to keiki and all ages in betweenfrom all islands will be present to exercise traditional Native Hawaiian cultural and religious access, as well as protest the construction of the TMT. With emotions high, extreme weather conditions, law enforcement presence and talk of the potential deployment of LRAD (Long-Range Acoustic Hailing Devices) for crowd control, Councilmember Paltin fears for the safety and protection of all who will be present on the summit.
Councilmember Paltin sought out insight from Dr. Keanu Sai who has served as a resource for and provided training presentations to the Council’s Planning and Sustainable Land Use Committee, of which Paltin chairs, concerning the proposed construction of the TMT on the summit of Mauna Kea, in light of the ahupua`a of Ka`ohe being so-called ceded lands.
Paltin’s letter reiterates Dr. Sai’s focus on three topics underlying the proposed TMT construction: the invalidity of General Lease No. S-4191 between the State of Hawai`i Board of Land and Natural Resources, as the lessor, and the University of Hawai`i, as the lessee; the war crime of destruction of property on the summit of Mauna Kea by the previous telescopes; and the third topic of native tenant rights within the ahupua`a of Ka`ohe, and describes Dr. Sai’s response as “quite illuminating to say the least.”
Councilmember Paltin requested that President Lassner have the University’s legal counsel review Dr. Sai’s assessment of the situation, and stated that, “this is not a political issue, but an issue of the rule of law, which is foundational, and for our communities throughout the islands to have confidence that the State of Hawai`i officials, to include the Counties, believe in and abide by.”
A full copy of Councilmember Tamara Paltin’s letter to UH President Lassner can be located at mauicounty.us/paltin/.
For more information, please contact Councilmember Paltin’s office.