Last week, a friend left a very critical comment about my shout-out to Ken Conklin for his critique of recent writings of David Keanu Sai. I promised to get back to the issue. Here goes…. Should I apologize in advance that this is longer than I wanted it to be, and I realize few people will get through it all? Yes, but, that aside….

Sai and others making similar arguments don’t get their fair share of serious criticism, constructive or otherwise. In part, there’s political correctness involved. People are just reluctant to be seen as publicly critical of things Hawaiian. Hawaiians ourselves are usually more inclined to shy away from open criticism and conflict, and just work around differences. It’s an island thing we grow up with. We live on an island, so don’t fight unless absolutely necessary. The media, along with most politicians, also seem to believe Hawaiian issues are another “third rail” of public life to be avoided.

So that’s one reason I think Conklin makes a positive contribution with his point-by-point rebuttals of Sai, even if they lead him (too often) to offensive comments that are easily taken as insensitive at best, racist at worst. Ideally, he would be creating space for others to think and write critically about the issues, but that still hasn’t happened. I’m not saying that we need more anti-Hawaiian criticism, but Hawaiian claims shouldn’t be off-limits for the strict scrutiny we apply to other political arguments.

Tackling Sai’s writing isn’t easy. I discovered that several years ago when another friend handed me one of Sai’s articles and asked for my feedback. I read through it to get the overall shape of the argument, then returned to the beginning to check the references and footnotes, where I quickly bogged down.

Why? Footnotes. I learned my lesson about the importance of checking footnotes some time back. It was about 1989, and the city council was debating the proposal for an elevated rail system put forward by then-Mayor Frank Fasi. I was working as senior advisor to Neil Abercrombie, then a member of the Honolulu City Council representing District 5, from Manoa down to parts of Waikiki.

One day a well-dressed realtor appeared at Neil’s office and was referred to me. He had a compelling story to tell. He alleged that one of the proposed rail routes to the edge of Waikiki was being pushed by Hawaii’s senior senator and, if approved, would result in a windfall for the senator and friends who had an interest in a particular property along Ala Moana Boulevard. He said it had all been documented, and left me with a long report, carefully footnoted, laying out the evidence.

Although a Democrat, I had come out of a “good government” background, having served as state director of Common Cause. If a documented case of political manipulation of the rail process for private gain existed, I was ready to recommend appropriate action. So I sat down with the document and read it through carefully, noting that its footnotes referenced documents filed with the Bureau of Conveyances. Those documents must be dynamite, I thought to myself, and off I went in pursuit of knowledge.

At the bureau, I began pulling out microfilms containing the documents cited in those footnotes. It didn’t take long to figure out that they were part of a self-referencing and deceptive web of plausible untruths. Almost all of the referenced documents, most with elaborate and provocative titles, turned out to have been originated by the same person who wrote the report that, in turn, relied on them as external “evidence.” A few of the documents were simply quoted out of context, and on closer reading offered no support at all. By the time I finished the session, it was clear the entire conspiracy tale was an elaborate fabrication.

In the 20+ years since, the same person who put together this fabricated report has been accused on numerous occasions of theft and fraud, sometimes accused of defrauding people he ostensibly was “helping.” He is currently awaiting trial in Northern California on federal charges including wire fraud, conspiracy, blackmail, and witness tampering.

And that brings me back to the arguments of Keanu Sai. I haven’t found the precise article of his that my friend had solicited comments about, but its claims were similar to those in a 2004 column written for the newspaper of the Office of Hawaiian Affairs (“Experts validate legitimacy of international law case“).

The column points to a legal commentary by attorneys David J. Bederman and Kurt R. Hilbert, appearing in the American Journal of International Law, and later reprinted in the Hawaiian Journal of Law and Politics. It examines an attempt made by Sai and others to get the UN Commission on International Trade Law (UNCITRAL) to arbitrate (through the Permanent Court of Arbitration) the dispute (such as it is) over the status of Hawaii and the Hawaiian Kingdom.

Sai writes:

The commentary correctly explained that at “the center of the PCA proceeding was … that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawai‘i.”

The reader would be justified in thinking that the author of the commentary was affirming the continued existence of the Hawaiian Kingdom and the rest of Sai’s argument. However, the quote, as presented by Sai, omitted a crucial phrase defining the statement simply as describing Sai’s position, not commenting on it.

At the center of the PCA proceeding was the argument that Hawaiians never directly relinquished to the United States their claim of inherent sovereignty either as a people or over their national lands, and accordingly that the Hawaiian Kingdom continues to exist… (etc.)

Through careful editing, Sai conveys the mistaken conclusion that the quote was affirming of his position rather than merely being descriptive. That’s a huge and meaningful difference, and Sai’s approach smacks either of intellectual dishonesty or very sloppy scholarship.

The commentary’s real focus is not on Hawaii or the argument about the Hawaiian Kingdom, but rather on the reasoning of the Permanent Court of Arbitration in rejecting Sai’s case and the problems of this reasoning as they address other issues going forward.

The authors conclude the tribunal was “clearly correct in rejecting this (Sai’s) claim,” which described as “curious—and collusive,” but argue that the claim should have been rejected immediately because the tribunal’s rules apply only to commercial disputes and not to noncommercial, political arguments.

This award raises important questions concerning the use of the doctrines of standing and indispensable third parties in the context of international arbitrations, and also concerning the Tribunal’s application of the ICJ’s Monetary Gold principle. From the outset of the proceedings, it was clear that the parties were in conflict not with one another, but with the United States. The Tribunal properly recognized that the “function of international arbitral tribunals in contentious proceedings is to determine disputes between parties, not to make abstract rulings.” As such, the Tribunal could have based its ruling initially on the lack of a legal dispute. Absent a legal dispute, the UNCITRAL Rules do not apply, irrespective of party agreement.

This commentary, and at least one other cited by Sai, never reached the substantive issues pushed by Sai, but revolved around procedural questions. And Sai’s seizing on parts of the procedural debate as validation of his substantive political positions appears to be as flawed as Laulima LLC’s attempt to equate a procedural dismissal of a District Court summary possession action with a court validation of their claims that all titles since the 1893 overthrow of the Hawaiian Kingdom are defective.

All of this is a very long-winded explanation to my friend as to why I tolerate or look past Ken Conklin’s personal political views in order to encourage the debate over the many questionable claims about the Hawaiian Kingdom made by Keanu Sai (and others).