My Civil Beat column this week once again stepped into the quicksand of Hawaiian Sovereignty ideology and belief (“Ian Lind: The ‘Kingdom Defense’ is a Dead End for Mauna Kea Protesters“).
What I tried to do in this column is to describe what I refer to as the “Kingdom Defense” being offered up by an attorney for several of those arrested for blocking the access road to Mauna Kea as part of the protest against the planned Thirty Meter Telescope. It’s based on the proposition that the Hawaiian Kingdom government still exists and, as a result, the State of Hawaii has no jurisdiction over these protesters or, by extension, anyone else in the islands.
Click here to see an example of the Kingdom Defense as spelled out in a motion to dismiss criminal charges against one of the TMT defendants.
It’s an argument that has been unsuccessfully raised in many court cases, including dozens that eventually reached Hawaii’s Intermediate Court of Appeals or Supreme Court. For those who are interested, I tried to explain how the same Hawaii Supreme Court that has upheld significant protections for traditional and customary Native Hawaiian practices also distinguishes those decisions from the issue of sovereign jurisdiction.
If you have access to Civil Beat, you might want to check it out.
Unfortunately, Civil Beat has exclusive rights to publication of the column for three months, so I can’t provide a version that bypasses CB’s pay wall.
However, this isn’t the first time I’ve commented critically on the ideology of sovereignty.
Here’s a column I wrote back in early 2014 that treads on similar ground. It is reprinted here in full, although the original also includes 38 sometimes entertaining comments.
Hawaii Monitor: Some Laughable Royalty Claims
(First published by CivilBeat.com, February 26, 2014)Suddenly it seems we’ve got a bumper crop of Wannabe Royals staking their claims, however questionable, to wield power on behalf of what each says is a sovereign Hawaiian government tracing its roots back prior to the 1893 “overthrow” of the kingdom.
It seems like everywhere you turn, there’s another cult-like group formed around a charismatic central figure claiming sovereign rights and asserting that they and their followers are above the laws that apply to the rest of us. Pretenders, some might call them.
Their claims, of course, are conflicting and overlapping, leading to repeated attempts by certain sovereigns to undercut the claims of others, and vice versa.
Timid news coverage and a reluctance among many Hawaiians to publicly criticize these royal claimants for fear of hurting other more mainstream sovereignty initiatives that are also underway has resulted in the Wannabe Royals getting more respect and deference than they would otherwise merit.
Although far from politically correct, especially in an island state where the sovereignty narrative has been gathering steam, there’s a wonderfully instructive scene at the beginning of the classic 1975 British comedy, “Monty Python and the Holy Grail” that says a lot about claims to royal status.
Swirling mist fills the screen immediately following the film’s credits, and out of the mist come what sounds like the clippety-clop of horses slowly approaching. Two riders then emerge over a rise, appearing to be bouncing atop their trusty steeds. But as they get closer, the two — introduced as King Arthur and a trusty servant — are revealed to be on foot, skipping along in a child’s play version of a horseback ride, while the sound of horses hooves turn out to be the servant tapping out the rhythm by banging two coconut shells together.
A few minutes later, the pair “ride” up to several peasants working in a field, and Arthur announces boldly, “I am your King.”
A woman in the field replies: “Well, I didn’t vote for you!”
“You don’t vote for kings!” Arthur responds indignantly, and then turns to the question of just how one does get to be a king.
Monty Python’s Arthur, like the rival Hawaiian sovereigns, harkens back to a legitimizing myth, a historical narrative that claims to prove — to believers at least — their right to power.
In Python’s Holy Grail, it leads to a farcical back-and-forth with the peasants, members of a self-proclaimed “anarchist-syndicalist commune,” who are not about to bow down before the equally self-proclaimed “King of the Britains.”
“Who are the Britains?” the woman asks, and off they go to deconstruct Arthur’s claim to political legitimacy.
Sometimes claims of sovereignty in the “real” world don’t play out so humorously.
The Garden Island newspaper described how a meeting scheduled last month to discuss the possibility of a new 12,000-foot well tapped high into Kauai’s Mount Kahili was disrupted by angry opponents of the project.
According to the newspaper, a heavyweight role was played by Dayne “Aipoalani” Gonzalves, who has claimed the title of Alii Nui, or king, of what he calls the Polynesian Kingdom of Atooi. Some accounts credit Gonzalves and his appointed “federal marshals” for shutting down the meeting.
“Aipoalani” at one point left his seat and challenged the meeting facilitator and county water officials present, according to the newspaper’s account.
“I don’t recognize you guys on this land,” he said. “We in charge of this land, not you guys. You know who I am? I’m Alii Nui … You guys don’t have our permission. OK? We going to protect this, whatever it takes. You guys can call you guys’ police, you guys’ DLNR. But they gonna have to come see me, and us. We are the federal marshals of Hawaii.”
There appear to be legitimate problems with the proposed well, including dramatically escalating cost estimates and, as I understand, a less than full understanding of the impact of the new well on water flows in nearby streams and rivers. But these are dwarfed by the many levels of problems with Gonzalves’ claim that state and county officials have to “come see me” — the king — in order to do anything on his part of Kauai.
Let’s see. His right to grab the “Alii Nui” title appears to rest on his untested claim to be the “great-great-great-grandson of King Kamehameha I.”
Of course, even if his untested genealogical claim is true, it fails to address exactly why Gonzalves should be considered king rather than any of the other people with similar ancestral roots, likely numbering in the many thousands. The whole idea of declaring oneself “king” in this way invites retorts of the “sure, and I’m Jesus Christ” variety.
It’s likely Gonzalves is an effective community organizer and popular voice, but that’s a long way from claiming to be the king.
Combine the absence of legitimacy with the implied threats of “marshals” with badges claiming authority to enforce the “kings” orders, and I have to wonder whether the “sovereignty” idea is poised to usher in an era of regional “warlords,” each with claims to wield sovereignty within their own territory, and each rejecting local and state government authority?
It is interesting to see the Hawaii Supreme Court, which apparently shares similar concerns, has been slowly spelling out the limits of sovereignty politics. In the latest case of this kind, decided earlier this year, the court went out of its way to reject arguments made by members of one 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 case involved criminal 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 landing on Kahoolawe in a demonstration they described as aimed at “reclaiming” Kahoolawe and all other public lands for their Reinstated Kingdom.
The Supreme Court dismissed the criminal charges on a technicality, but then took the occasion to systematically address the sovereignty arguments raised in this case and others.
The court acknowledged the state’s stated openness to resolving outstanding historical claims that might be asserted by Hawaiians based on the Legislature’s previous recognition of their “unrelinquished sovereignty.”
But the court said clearly that it could not, and would not, pick and choose among the claims of competing sovereignty groups.
“To date, no sovereign native Hawaiian entity has been recognized by the United States and the State of Hawaii,” and the court noted that there are “several” organizations vying for such recognition.
Whether or not an independent sovereign Hawaiian Kingdom exists is a political question and is not a matter for the courts to determine, the court ruled.
Only when a sovereign Hawaiian governing entity is recognized in the local, national and international arenas will it be granted the appropriate legal deference. Today, no group is able to claim such recognition.
The court also held that while the state Constitution protects “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes,” building a native Hawaiian nation is not one of the fundamental rights protected by the constitution.
And the court noted that, contrary to a popular belief in sovereignty circles, “individuals claiming to be citizens of an independent sovereign entity are not exempt from the state’s laws.”
“’International law’ takes precedence over state statutes in only limited circumstances,” the court held. “These circumstances are not present when the dispute is concerned with domestic rights and duties.”
In addition, according to the court, the state “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.’”
I’m glad the Supreme Court has clarified the legal limits of popular sovereignty claims, and hope that we can restore our natural skepticism when this or that royal wannabe steps forward to test our credibility.
Reasserting our ability to laugh at them when they so clearly deserve it would be a welcome bonus.
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Unfortunately, it is no laughing matter when folks buy into this idea as presented by charlatans offering financial relief and loose their homes as a consequence.
It is odd, however, that so much of this al’i protestation comes from those with non-Hawaiian names.
A fantasy is not a legal protection. And most people of all ethnic backgrounds simply have no desire to resurrect a long-extinguished caricature of pompous British monarchy as the basis for imposing new forms of racial segregation in the modern world, no matter what the vocal fringe and selfie-drama contingent would have gullible Twitterists believe.
The reductio ad absurdum of this “defense” would be that no crime, i.e., murder, rape, assault, theft, trespass, etc. could be prosecuted if the perp had a drop of Hawaiian blood.
The Kingdom Defense is nothing but a Royal Pain, but it’s no surprise that some folks buy into it since it’s taught and promoted by our State university, no less, and also will reportedly be part of a State-paid professor’s contested case argument against the Mauna Kea emergency rules.
Ian,
I think you are confusing claims of royalty (i.e. a “Kingdom Defense”) with actual legal claims regarding the overthrow and the annexation. Those legal claims are legitimately in the Courts, and are evolving as facts are brought to light about our history.
Ramona Hussey,
in 2011, U.S. District Judge Colleen Kollar-Kotelly dismissed a lawsuit that challenged the 19th century annexation of the islands.
https://casetext.com/case/sai-v-clinton
Kollar-Kotelly:
The federal courts have long recognized that the determination of sovereignty over a territory is fundamentally a political question beyond the jurisdiction of the courts. As the Supreme Court recognized in 1890:
“Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances.”
Jones v. United States, 137 U.S. 202, 212, 11 S.Ct. 80, 34 L.Ed. 691 (1890). This principle was recently reaffirmed by the D.C. Circuit, which ruled that claims requiring the determination of sovereignty over Taiwan under federal and international law presented a political question requiring dismissal for lack of subject matter jurisdiction. See Lin v. United States, 561 F.3d 502, 505–08 (D.C.Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 202, 175 L.Ed.2d 128 (2009).
Analysis of the Baker v. Carr factors confirms that Plaintiff’s claims present this Court with a nonjusticiable political question. Plaintiff’s lawsuit challenges the United States’s recognition of the Republic of Hawaii as a sovereign entity and the United States’s exercise of authority over Hawaii following annexation. However, “[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative — ‘the political’ — Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918). In addition, the Constitution vests Congress with the “Power to dispose of an make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. Const., Art. IV, § 3, cl. 2. Therefore, there is a textually demonstrable constitutional commitment of these issues to the political branches.
@Ramona Hussey: The two issues of pretenders to the Hawaiian throne and the legal status of a sovereign Hawaiian nation is often tied, hand in hand. Persons claiming royal status often end up violating state and federal laws when they try to assert their royalty, like the group calling themselves the Hawaiian Kingdom Government, when they occupied Iolani Palace several years ago and locked out everybody else from the palace grounds (including state employee who worked there, as well as Friends Of Iolani Palace). In a seperate incident, a prominent member of that group (her Highness Rita Makekau) tried to defend herself from charges of torturing and starving five children under her care by saying that state and federal laws did not apply to her since the overthrow of the kingdom was illegal, there was no treaty of annexation, and blah blah blah. And if you followed that case, you would know that Makekau’s defense did not save her from going to prison.
Its so easy to cherry pick those at the outskirts of an issue and lampoon them. What I am not reading in this blog are constructive solutions to the question of sovereignty. From the tone of these articles, it sounds like Hawaiians are expected to just be good Americans and stay quiet and satisfied with their situation.
@Don
Not at all.
Hawaiians can and should think for themselves about what they see as productive solutions to problems.
But they should not base a course of action on illusions peddled by extremists and charlatans. It can always get worse. For everyone.
What are constructive solutions to the question of sovereignty?
Understanding that there is a deep-seated pain (for some people) that isn’t going to be resolved by govt action/inaction. It is a theory that all will be better with an imagined form of govt; rarely does the vision match reality. Those who disagree with one set of rules/laws are likely to still disagree with another set of rules/laws made by some other body.
Something for you to consider, Don.