UPDATE: Federal Government Given Extension to File Opposition to Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law

On December 16, 2021, United States Magistrate Judge Rom Trader issued an order allowing the United States to file their Response Memorandum to the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law regarding the action taken by the International Bureau of the Permanent Court of Arbitration acknowledging the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention on the Pacific Settlement of International Disputes from December 16, 2021 to January 14, 2022. The Hawaiian Kingdom will need to file their Reply in support of their Motion for Judicial Notice by January 28, 2022.

The United States will also be filing a Motion to Dismiss the complaint on the same day their Response is due. The Hawaiian Kingdom is scheduled to file their Opposition to the Motion Dismiss on the same day they will be filing their Reply in support of their Motion for Judicial Notice. The United States will then file their Reply in support of their Motion to Dismiss by February 11, 2022.

Judge Trader’s order confirmed a Stipulation Agreement entered into between Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, and Michael J. Gerardi, Trial Attorney, U.S. Department of Justice. The Stipulation Agreement stated:

In light of the Court’s decision to convert Plaintiff’s request for judicial notice into a motion, the impending deadlines for responding to the complaint and the Rule 16 conference, and the forthcoming federal holidays of Christmas and New Year’s Day, good cause exists to modify the current deadlines. Resolution of the Plaintiff’s pending motion and of Defendants’ motion to dismiss may obviate the need for a Rule 16 conference. Defendants further state that they need additional time to consult with representatives of multiple government agencies, as well as supervisory officials within the Department of Justice, to prepare the necessary filing. Moreover, many federal officials are likely to be unavailable during the holiday season due to preplanned leave.

Gerardi disclosed to Attorney General Ka‘iama that the basis for their Motion to Dismiss would argue that federal courts have already determined that the Hawaiian Kingdom does not exist and, therefore, it presents a political question that would require presiding Judge Leslie Kobayashi to dismiss the case. The political question doctrine applies only to Article III Courts, which are federal courts within the territory of the United States. It does not apply to federal courts established outside of the United States, which are called Article II Courts.

The doctrine prevents the federal courts from determining the question of sovereignty over territory because that determination is committed to the political branches of the federal government. If there is a question of sovereignty over Native American tribal lands the political branch to determine that question in the affirmative would be the legislative branch—the Congress by virtue of federal recognition. If the question of sovereignty concerns a country outside of the United States it would be the executive branch, headed by the President, recognizing a territory as an “independent and sovereign State.”

It would appear that Gerardi is not aware that President Tyler on July 6, 1844 explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission comprised of Timoteo Ha‘alilio and William Richards. While in the Washington, D.C., the Hawaiian Commission sent a letter dated December 14, 1842, to Secretary of State Daniel Webster requesting that the United States recognize the Hawaiian Kingdom as a “sovereign and independent State.”

On December 19th, Secretary of State Webster responded by stating that President Tyler is “willing to declare, as the sense of the Government of the United States, that the Government of the Sandwich Islands [Hawaiian Islands] ought to be respected; that no power ought either to take possession of the islands as a conquest, or for the purpose of colonization, and that not power ought to seek for any undue control over the existing Government, or any exclusive privileges or preferences in matters of commerce.” He further stated, “the President does not see any present necessity for the negotiation of a formal treaty, or the appointment or reception of diplomatic characters.” The use of the term “ought” is not conclusive as “shall.”

His his message to the House of Representatives on December 31, 1842, President Tyler stated that the United States “is content with its independent existence,” but did not explicitly recognize the Hawaiian Kingdom as a “sovereign and independent State” as required by customary international law. President Tyler did not declare the United States’ recognition of Hawaiian independence, which prompted to the Hawaiian Commission to travel to Europe to seek explicit recognition from Great Britain and France.

On November 28, 1843, the Hawaiian Commission was able to secure formal recognition of the Hawaiian Kingdom as a “sovereign and independent State” from Great Britain and France by a formal joint proclamation. While in Washington, D.C., after returning from Europe, the Hawaiian Commission sent another letter to Secretary of State Calhoun, who succeeded Webster, on July 1, 1844, inquiring whether the United States considered its “various acts in relation to the Sandwich Islands as a full and perfect recognition of independence.”

Secretary of State Calhoun responded to the Hawaiian Commission on July 6, 1844. He wrote that the appointment of a United States Commissioner to the Hawaiian Islands was “regarded by the President as a full recognition on the part of the United States, of the Independence of the Hawaiian Government.” A Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States was signed in Washington, D.C., on December 20, 1849.

There is no political question for the United States to raise in its Motion to Dismiss because the United States, by its President, formally recognized the Hawaiian Kingdom as a sovereign and independent State. On December 18, 1893, President Grover Cleveland acknowledged the United States’ overthrow of the government of the Hawaiian Kingdom was an act of war and unlawful. The overthrow of the Government of an independent State does not equate to the overthrow of the State itself and its existence. The State would still exist and the situation would be called “belligerent occupation.”

This is precisely what occurred when the Allied Powers occupied Germany from 1945-1955 after the Nazi government of Germany was militarily overthrown. According Professor Ian Brownlie:

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

10 thoughts on “UPDATE: Federal Government Given Extension to File Opposition to Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law

  1. Hauoli Makahiki Hou!

    The federal courts have determined – yeah right. Regardless of the crime, large or small, criminals have never had right to judge themselves.

    Keep up the good works!

    Mahalo nu nui, Paka

  2. TO ALL HAWAIIAN SUBJECTS: “Hau’oli Makahiki Hou, 2022″…”UA MAU KE EA O KA `AINA I KA PONO”—THE LIFE OF THE LAND IS PERPETUATED IN RIGHTEOUSNESS! To Every Hawaiian Subjects, throughout the UNIVERSE, since 1843 til TODAY, 2022, REMEMBER, our IDENTITY, as Hawaiian Subjects has been noted 178 years + 1 month ago, that our NATION IS the HAWAIIAN KINGDOM, it will always REMAIN the Same and moving FORWARD! Mahalo,nui loa!

  3. Basically, they got nothing and are expecting Judge Kobayashi to bail them out by going along with the tried-and-true political question doctrine. They want her to disregard the amicus curiae, the PCA juridical fact and juridical act and want her ruling to be political and hot based in law.

  4. I took another look at Exhibit 1 which is Dr. Lenzerini’s legal opinion regarding civil law and how it was used by the PCA in determining the juridical fact that the HK is a state in continuity and from this fact, it initiated a juridical act to conduct legal proceedings re: Larsen v. HK. This was reflected in the PCA’s annual report.
    His expert legal opinion is solid, but his expert opinion cannot qualify the PCA’s annual report as evidence.
    I’m not an attorney but if the PCA’s annual report is not properly entered into evidence the Judge will not see it. Maybe the PCA’s Annual Report as Exhibit 2
    pursuant to Rule 902. Evidence That Is Self-Authenticating.
    (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

    (A) order that it be treated as presumptively authentic without final certification; or

    (B) allow it to be evidenced by an attested summary with or without final certification.

    (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

    (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

    All the citations listed above that was made on record by U.S. gov’t officials or U.S. publications could also be Exhibits pursuant to Rule 902 relating to domestic publications and records.

    Preponderance of evidence is the burden of the plaintiff in a civil case. Preponderance of the evidence requires the plaintiff to introduce slightly more or better evidence than the defense.

    Properly introduced evidence, especially evidence taken under judicial notice will establish facts before the court. Arguments of attorneys are not facts before the court. No need to argue if your properly introduced evidence establishes a fact that beats their argument.

    Just thinking out loud at 3am.

  5. Your dealing with a criminal organizations the Bar Association they’re going to make up their own laws and rules and regulations which we all know not law the state are federal territory Washington d.c. Puerto Rico Virgin Island Micronesia Guam how can you be a part of the United states when your a independent nation. Your not in the unions and can never be part of the United states.

    • Hawaiians are blessed by God the United States owes a a big bag lump sum of money for what they did to us i don’t see why you’re so bothered unless you wanna pay out of your pocket? The government owes us reparations not you so stay in your place. Hawaiians don’t get talked down on we do the talking. We didn’t ask to be american we were literally forcefully invited to be american this means we have all the privileges of being american and none of the BS attached to it because we’re Hawaiian we never asked for it think of it as a forced gift that we tried refusing super respectfully. Understand? We win. Of course we win though, cause we’re HAWAIIAN.


  7. How can we trust a haole who have lied to us as an American from day one? And than being told that the overthrow never happened. But we know BETTA, they stole our land. Like how they stole our votes from the BEST PRESIDENT, Trump.

    Why isnt this not being reported by the media, advertiser, midweek. I just so happened to open this. I must say it wasnt by mistake. Everything has a reason…

  8. I believe that we error when we interchange the terms, HAWAII and Hawaiian Kingdom. When we’re speaking amongst friends, there should be no problem. But, in my opinion ( I may be completely wrong ) the legal description of these terms are completely different. You can find my justification within USC title 28 sec. 91 . This is the only legal description of HAWAII that I have been able to find. Does anyone have a better definition for HAWAII? Mahalo Nui

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