{"id":4741,"date":"2019-07-15T08:15:09","date_gmt":"2019-07-15T08:15:09","guid":{"rendered":"https:\/\/hawaiiankingdom.org\/blog\/?p=4741"},"modified":"2019-08-17T00:50:10","modified_gmt":"2019-08-17T00:50:10","slug":"uhs-lease-from-state-of-hawaii-for-the-summit-of-mauna-kea-is-invalid","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/uhs-lease-from-state-of-hawaii-for-the-summit-of-mauna-kea-is-invalid\/","title":{"rendered":"UH’s Lease from State of Hawai\u2018i for the Summit of Mauna Kea is Invalid"},"content":{"rendered":"\n

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<\/a><\/strong> to University of Hawai\u2018i President David Lassner on July 12, 2019.<\/p>\n\n\n\n

Invalidity of General Lease No. S-4191<\/h2>\n\n\n\n

Under General Lease No.\nS-4191 dated June 21, 1968, the Board of Land and Natural Resources of the\nState of Hawai\u2018i, as lessor, issued a 65-year lease to the University of\nHawai\u2018i with a commencement date of January 1, 1968 and a termination date of\nDecember 31, 2033. The lease is comprised of 11,215.554 acres, more or less,\nbeing a portion of Government lands of the ahupua\u2018a of Ka\u2018ohe situated at\nHamakua, Island of Hawai\u2018i identified under Tax May Key: 3rd<\/sup>\/4.4.15:09.<\/p>\n\n\n\n

The State of Hawai\u2018i claims\nto have acquired title under Section 5(b) of the 1959 Hawai\u2018i Admissions Act<\/em>,\nPublic Law 86-3 (73 Stat. 4), whereby \u201cthe United States grants to the State of\nHawaii, effective upon its admission into the Union, the United States\u2019 title\nto all public lands and other public property within the boundaries of the\nState of Hawaii, title to which is held by the United States immediately prior\nto its admission into the Union.\u201d The United States derives its title from the\n1898 Joint Resolution of Annexation<\/em> (30 Stat. 750), which states\n\u201cWhereas the Government of the Republic of Hawaii having, in due form,\nsignified its consent, in the manner provided by its constitution\u2026to cede and\ntransfer to the United States the absolute fee and ownership of all public,\nGovernment, or Crown lands.\u201d<\/p>\n\n\n\n

The Republic of Hawai\u2018i proclaimed\nitself on July 3, 1894, by a convention comprised of appointed members of the\nProvisional Government and eighteen \u201celected\u201d delegates. The Provisional\nGovernment proclaimed itself on January 17, 1893 and claimed to be the\nsuccessor of the Hawaiian Kingdom. The Hawaiian Kingdom\u2019s title derives from\nthe 1848 Act Relating to the Lands of His Majesty The King and of the\nGovernment<\/em>, whereby the ahupua\u2018a of Ka\u2018ohe is \u201cMade over to the Chiefs and\nPeople, by our Sovereign Lord the King, and we do hereby declare those lands to\nbe set apart as the lands of the Hawaiian Government, subject always to the\nrights of tenants.\u201d<\/p>\n\n\n\n

According to President Grover\nCleveland, in his message to the Congress after investigating the illegal\noverthrow of the Hawaiian Kingdom government that took place on January 17,\n1893, the Provisional Government \u201cwas neither a government de facto<\/em> nor de\njure<\/em>.\u201d[1]<\/sup><\/a> He did\nnot consider it a government. The President also concluded that \u201cthe\nprovisional government owes its existence to an armed invasion by the United\nStates.\u201d[2]<\/sup><\/a> Being a\ncreature, or creation, of the US, it could not claim to be the lawful successor\nof the Hawaiian Kingdom government with vested title to the ahupua\u2018a of Ka\u2018ohe.\nAs the successor to the Provisional Government, the Republic of Hawai\u2018i, as it\nself-declared successor, could not take any better title than the Provisional\nGovernment and hence did not have title to Ka\u2018ohe. The U.S. Congress in the\n1993 Apology Resolution noted that the Republic of Hawai\u2018i was \u201cself-declared.\u201d[3]<\/sup><\/a><\/p>\n\n\n\n

The United States claims to\nhave acquired title to Ka\u2018ohe, by cession, from the Republic of Hawai\u2018i under\nthe 1898 Joint Resolution of Annexation. International law recognizes that the\n\u201conly form in which a cession can be effected is an agreement embodied in a\ntreaty between the ceding and the acquiring State.\u201d[4]<\/sup><\/a> The Joint Resolution of\nAnnexation is not \u201can agreement embodied in a treaty.\u201d It is a U.S. municipal\nlaw from the Congress merely asserting that cession took place. The situation\nis not unlike a neighbor holding a family meeting and claiming that they have\nagreed that your house is now their house. <\/p>\n\n\n\n

In a debate on the Senate\nfloor on July 4, 1898, Senator William Allen stated:<\/p>\n\n\n\n

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.[5]<\/sup><\/a> <\/p><\/blockquote>\n\n\n\n

The joint resolution is ipso facto null and void.[6]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

In 1988, the U.S. Department\nof Justice, Office of Legal Counsel (\u201cOLC\u201d) issued a legal opinion on the\nlawfulness of the annexation of Hawai\u2018i by a joint resolution.[7]<\/sup><\/a> In its\nopinion, it cited constitutional scholar Westel Willoughby:<\/p>\n\n\n\n

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 \u2026 Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force\u2014confined in its operation to the territory of the State by whose legislature it is enacted.[8]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

The OLC concluded, \u201cIt is\ntherefore unclear which constitutional power Congress exercised when it\nacquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition\nof Hawaii can serve as an appropriate precedent for a congressional assertion\nof sovereignty over an extended territorial sea.\u201d[9]<\/sup><\/a> The United States cannot produce\nany evidence of a conveyance of the ahupua\u2018a of Ka\u2018ohe from a grantor, vested\nwith the title. All it can produce is a joint resolution of Congress. This is\nnot a conveyance from a foreign State ceding territory. <\/p>\n\n\n\n

Instead of providing evidence\nof a conveyance of territory, i.e. treaty of cession, the State of Hawai\u2018i\nSupreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT<\/em>,\nSCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of\nHawai\u2018i <\/em>written by Professor Jon Van Dyke.<\/p>\n\n\n\n

The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawai\u02bbi by joint resolution, when it said in De Lima v. Bidwell<\/em>, 182 U.S. 1, 196 (1901), that \u201cterritory 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.\u201d See also Texas v. White<\/em>, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.[10]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

It is unclear what Professor\nVan Dyke meant when he stated that the U.S. Supreme Court \u201cgave tacit\nrecognition to the legitimacy of the annexation of Texas and Hawai\u2018i by joint\nresolution,\u201d because tacit, by definition, is to be \u201cunderstood without being\nopenly expressed or stated.\u201d[11]<\/a>\nFurthermore, this statement is twice irrelevant: first, the Court as a third\nparty to any cession of foreign territory has no standing to make such a\nconclusion as to what occurred between the ceding and receiving States; and,\nsecond, its opinion is a fabrication or what American jurisprudence calls a\nlegal fiction. Legal fictions treat \u201cas true a factual assertion that plainly\nwas false, generally as a means to avoid changing a legal rule that required a\nparticular factual predicate for its application.\u201d[12]<\/sup><\/a> <\/p>\n\n\n\n

According to Professor Smith,\na \u201cjudge deploys a new legal fiction when he relies in crafting a legal rule on\na factual premise that is false or inaccurate.\u201d[13]<\/sup><\/a> These \u201cnew legal fictions\noften serve a legitimating function, and judges may preserve them\u2014even in the\nface of evidence that they are false\u2014if their abandonment would have\ndelegitimating consequences.\u201d[14]<\/sup><\/a><\/p>\n\n\n\n

The proposition that Texas\nand Hawai\u2018i were both annexed by joint resolutions of Congress is clearly\nfalse. In the case of Texas, Congress consented to the admission of Texas as a\nState by joint resolution on March 1, 1845 with the following proviso, \u201cSaid\nState to be formed, subject to the adjustment by this government of all\nquestions of boundary that may arise with other governments.\u201d This condition\nwas referring to Mexico because as Texas was comprised of insurgents who were\nfighting for their independence, Mexico still retained sovereignty and title to\nthe land. In its follow up joint resolution on December 29, 1845 that admitted\nTexas as a State of the Union, it did state that the Congress consented \u201cthat\nthe territory properly included within, and rightfully belonging to, the\nRepublic of Texas.\u201d These actions taken by the Congress is what sparked the\nMexican-American War in 1846.<\/p>\n\n\n\n

Congress\u2019 statement of\n\u201crightfully belonging\u201d is an opinion and the resolution mentions no boundaries.\nThe transfer of title to the territory, which included the territory comprising\nTexas, came three years later on February 2, 1848 in a treaty of peace that\nended the Mexican-American War. <\/p>\n\n\n\n

Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. \u201cThe 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.\u201d[15]<\/sup><\/a> 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.<\/p>\n\n\n\n

\"\"<\/figure>\n\n\n\n

With regard to the so-called\nannexation of Hawai\u2018i in 1898 by Congress, there is no treaty ceding Hawaiian\nterritory as in the case of Texas. Like the Texas resolution, Congress stated, <\/p>\n\n\n\n

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\u2026<\/p><\/blockquote>\n\n\n\n

The reference to consent by\nits constitution is specifically referring to Article 32, which states, the\n\u201cPresident, with the approval of the Cabinet, is hereby expressly authorized\nand empowered to make a Treaty of Political or Commercial Union between the\nRepublic of Hawaii and the United States of America, subject to the\nratification of the Senate.\u201d[16]<\/sup><\/a> There\nis no treaty between the so-called Republic of Hawai\u2018i and the United States.\nFurthermore, a constitutional provision is not an instrument of conveyance as a\ntreaty would be. So without a treaty from the Hawaiian Kingdom government as\nthe ceding State vested with the sovereignty and title to government lands,\nwhich includes the ahupua\u2018a of Ka\u2018ohe, there was no change in the ownership of\nthe government lands.<\/p>\n\n\n\n

Furthermore, Hawaiians of the\nday knew there was no treaty as evidenced in the Maui News newspaper published\nOctober 20, 1900. The Editor wrote, <\/p>\n\n\n\n

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.<\/p><\/blockquote>\n\n\n\n

The legal fiction that Texas\nand Hawai\u2018i were annexed by a joint resolution of the Congress is just a patently\nfalse when measured \u201cagainst the results of existing empirical research.\u201d[17]<\/sup><\/a> For\nthe State of Hawai\u2018i Supreme Court to restate, and embrace, this falsifiable\nlegal fiction is simply a trick that allows it to fabricate its own false and falsifiable\nfiction regarding the State of Hawai\u2018i. In its TMT decision the Court, in conflict\nwith overwhelming evidence, stated, \u201c[W]e reaffirm that \u2018[w]hatever may be said\nregarding the lawfulness\u2019 of its origins, \u2018the State of Hawai\u2018i\u2026is now a lawful\ngovernment.\u2019\u201d[18]<\/sup><\/a> For\nthe State of Hawai\u2018i to be a \u201clawful government\u201d it must be vested with lawful\nauthority absent of which it is not lawful. The State of Hawai\u2018i Supreme Court,\nbeing a branch of the State of Hawai\u2018i itself, cannot declare it \u201cis now a\nlawful government\u201d without making reference to some intervening factor that\nvested the State of Hawai\u2018i with lawful authority. <\/p>\n\n\n\n

When addressing the lawful\nauthority and sovereignty of the United States of America, the United States\nSupreme Court specifically referred to a particular and significant intervening\nfactor. It stated that as \u201ca result of the separation from Great Britain by the\nColonies, acting as a unit, the powers of external sovereignty passed from the\nCrown not to the Colonies severally, but to the Colonies in their collective\nand corporate capacity as the United States of America.\u201d The Court was\nreferring to \u201cthe Treaty of Paris of September 3, 1783, by which Great Britain\nrecognized the independence of the United States.\u201d[19]<\/sup><\/a> <\/p>\n\n\n\n

It has been erroneously assumed\nthat the US Congress vested the State of Hawai\u2018i with lawful authority in the\n1959 Statehood Act[20]<\/sup><\/a> in an\nexercise of the constitutional authority of Congress to admit new States into\nthe Federal union under Article IV, section 3, clause 1. There is no provision\nin the US constitution for the admission of a state to the union that is on\nterritory not owned by the US. So before the US Congress can admit a new State\nto the US the US must \u201cown\u201d the territory. According to the United States\nSupreme Court:<\/p>\n\n\n\n

Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens\u2026, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.[21]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

Since the Hawaiian Islands\nwere never annexed by the United States via treaty, Congressional acts, which are\nmunicipal laws, may only operate on the territory of the United States. The\nUnited States Supreme Court is relatively clear on this point and has stated\nthat the \u201cmunicipal laws of one nation do not extend in their operation beyond\nits own territory except as regards its own citizens.\u201d[22]<\/sup><\/a> In another decision, the\nUnited States Supreme Court reiterated, that \u201cour Constitution, laws and\npolicies have no extraterritorial operation unless in respect of our own\ncitizens.\u201d[23]<\/sup><\/a> <\/p>\n\n\n\n

Under international law, the United\nStates is an occupying power in the Hawaiian Islands and as such the occupying\nPower is obligated, under Article 43 of the 1907 Hague Convention, IV, and\nArticle 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom\nlaws. In his communication to the members of the Judiciary of the State of\nHawai\u2018i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred\ndeZayas, reiterated this obligation under international law.<\/p>\n\n\n\n

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 \u201c6\u201d).<\/p><\/blockquote>\n\n\n\n

The United States never\nacquired any kind of title to Ka\u2018ohe and, since one can only convey what one\nhas, it could not convey what it did not have to the State of Hawai\u2018i under\nSection 5(b) of the 1959 Admissions Act. Thus the State of Hawai\u2018i was never\nlawfully vested with any title to the ahupua\u2018a of Ka\u2018ohe, and therefore its so-called\ngeneral lease no. S-4191 to the University of Hawai\u2018i dated June 21, 1968 is\ndefective. Under Hawaiian Kingdom law, the ahupua\u2018a of Ka\u2018ohe is government\nland under the management of the Ministry of \nthe Interior and not the State of Hawai\u2018i Board of Land and Natural\nResources. Consequently, all 10 subleases from the University of Hawai\u2018i that\nextend to December 31, 2033 are defective as well, which include:<\/p>\n\n\n\n