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.