In an opinion issued at the end of January, the Hawaii Supreme Court went out of its way to to reject arguments made by members of a Hawaiian sovereignty group that they were exempt from state law because they are “citizens” subject to the laws of the Hawaiian Kingdom (State v. Armitage, decided January 28, 2014).

The Supreme Court’s action has gotten little attention so far, although the underlying case was earlier hailed by sovereignty activists as providing a strong test case for the idea that a contemporary Kingdom government retains legal independence from the rest of modern Hawaii. And the Supreme Court has now again provided its clear reasoning for rejection of such claims.

The case stems from charges filed against Henry Noa and two other members of the Restored Hawaiian Government (also referred to as the Reinstated Kingdom of Hawaii or Reinstated Nation of Hawaii) for entering the area of the Kahoolawe Island Reserve without permission in July 2006 during a demonstration aimed at “reclaiming” Kahoolawe and all other public lands for their Reinstated Kingdom.

The defendants argued that the court lacked jurisdiction to charge them because they are citizens of another sovereign nation, and also argued that their right to be on Kahoolawe was protected by the Hawaii State Constitution’s provision providing for the practice of traditional and customary Native Hawaiian practices.

…Petitioners included a Declaration of Noa, which stated that he is the “democratically elected Prime Minister of the Reinstated Hawaiian Nation” and concluded as follows: “[i]n sum, the Kingdom of Hawaii/Government has reemerged with a working, sovereign government and demands the return of all Kingdom assets and the State of Hawaii immediately return the island of Kahoolawe to the Kingdom of Hawaii/Government.”

Noa commented immediately after the landing, as quoted by the Honolulu Star-Bulletin.

“Our purpose is to reclaim our national land,” Noa said from Kahoolawe. “We’re staking our claim here. We’re not terrorists. We’re far from being terrorists. We’re reasonable people.”

Members of the Reinstated Hawaiian Government, formed in 1999 and claiming 3,000 citizens, say their action on Kahoolawe is justified by the 1993 Apology Resolution, in which Congress voted to apologize for the role the United States played in the overthrow of the Hawaiian kingdom.

The Supreme Court dismissed the charges against the three on a technicality, but then turned to the sovereignty issues because, the court said, they are likely to be raised again.

The court’s opinion then walked step by step through the sovereignty arguments raised by the defendants and dismissed them, one by one.

• Building a native Hawaiian nation is not a fundamental constitutional right protected by the State Constitution.

The court held:

In their Application, Petitioners rely on Gates’ testimony that the process of building an indigenous native Hawaiian Nation is constitutionally protected under Article XII, section 7 of the Hawaii Constitution. However, Article XII offers protection for “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes . . . .” This constitutional provision has never been extended beyond rights deemed to have been “customarily and traditionally” practiced by native Hawaiians. Art. XII, section 7 does not create a separate, additional right to nation-building, as Petitioners appear to contend.

• The courts will not grant recognition to any of the competing groups claiming to exercise the powers of the Hawaiian Kingdom.

• The “Apology Resolution” did not create any new rights for Hawaiians and could not be relied on as a defense against trespassing charges.

Here the court points to the 2009 decision of the U.S. Supreme Court which held the Apology Resolution did not confer substantive rights or have a substantive legal effect. Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 164 (2009).

• The men’s occupation of Kahoolawe was not “free speech” protected by the First Amendment.

Here the court cited a series of cases which held that various protest actions went beyond speech, and beyond the constitutionally protected realism of speech.

See United States v. O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”).

• “…individuals claiming to be citizens of an independent sovereign entity are not exempt from the state’s laws.”

In a series of footnotes, the court highlighted findings of fact agreed to in earlier, lower court proceedings, including:

33. “‘International law’ takes precedence over state statutes in only limited circumstances. These circumstances are not present when the dispute is concerned with domestic rights and duties.” State v. Marley, 54 Haw. 450, 467-68, 508 P.2d 1095, 1107 (1973).

34. The State of Hawaii has a legitimate interest in the conduct of persons within its jurisdiction, and their conduct is amenable to reasonable state regulation, regardless of “international law.” [Id.] at 468-69[, 508 P.2d at 1107] [(] citing Skiriotes v. State of Florida, 313 U.S. 69 (1941)[)].

• Whether or not a an independent sovereign Hawaiian Kingdom exists is a political question and is not a matter for the courts to determine.

The court referred to the Findings of Fact determined in the original trial.

14. Notwithstanding [Petitioners’] expert testimony, and even assuming the general accuracy of the expert’s opinion, Defendants have failed to prove that the Reinstated Nation of Hawaii is a sovereign native Hawaiian entity and the [c]ourt lacks authority to make such a determination.

15. To date, no sovereign native Hawaiian entity has been recognized by the United States and the State of Hawaii; however, there are several native Hawaiian organizations, in addition to [Petitioners], seeking this recognition.

There’s a lot in this decision and it requires some careful reading. It doesn’t close the door on eventual recognition of some sovereign Hawaiian entity. However, the court makes clear that this political issue will have to be settled elsewhere. In the meantime, as far as the courts are concerned, when in the State of Hawaii, Hawaiians are subject to the laws of the state, and appeals to some “inherent” sovereignty will not provide special privileges when it comes to matters of law.