I would like to attribute the following to a fringe group in the current Hawaiian sovereignty movement, but I’m afraid such silliness has taken root in the belief systems of more than a simple “fringe.”

In a post last Wednesday, I took an updated look at a lawsuit brought by the state’s Office of Consumer Protection seeking to block a lawyer from attempting to stop foreclosures by invoking supposed Hawaiian sovereignty.

I’ll try to summarize his argument, made unsuccessfully in hundreds of foreclosure cases. The lawyer, Dexter Kaiama, argues Hawaii annexation to the U.S. in 1898 wasn’t legal, Kingdom law still reigns, land titles since that time are “clouded,” and American courts have no jurisdiction.

Yes, that’s a lot to swallow, and courts have quickly and easily dismissed the arguments. It isn’t clear whether any clients were disadvantaged by the lack of universal success of the sovereignty argument, or were simply thankful for any delays in their foreclosure cases that being tied up in court caused. But such legally frivolous arguments, repeated many times over in different cases, do end up racking up costs for the courts and the public.

It turns out that Kaiama and his apparent partner, sovereignty activist and theorist David Keanu Sai, have other items in their bag of tricks.

In one of several cases involving defendants who were arrested last year during the protests on Mauna Kea, Kaiama agues that only a “properly constituted” military tribunal has jurisdiction over his client, apparently based on the premiss that Hawaii is occupied by an enemy power (the United States) and therefore governed by the laws of war and those setting rules for the treatment of populations in occupied territories.

The State of Hawai‘i, through the Department of the Attorney General (hereinafter “STATE”), has filed charges of Obstruction in the District Court of the Third Circuit, against Defendant Kaliko Kanaele (hereinafter “KANAELE”).

However, the STATE cannot claim relief from the District Court of the Third Circuit because the appropriate court with subject matter jurisdiction in the Hawaiian Islands is an Article II Court established under and by virtue of Article II of the U.S. Constitution in compliance with Hague Convention IV, art. 43, Oct. 18, 1907, 36 Stat. 2277. Article 43, 1907 Hague Convention IV (36 U.S. Stat. 2277). Article II Courts are Military Courts established by authority of the President, being Federal Courts, which were established as “the product of military occupation.”
See David J. Bederman, Article II Courts, 44 Mercer L. Rev. 825, 826 (1992-1993).

Military Courts are generally based upon the occupant’s customary and conventional duty to govern occupied territory and to maintain law and order.

The fundamental question before this Court is whether or not it has subject-matterjurisdiction pursuant to Rule 12(b)(1), or, in other words, is the District Court of the Third Circuit “regularly constituted” under the Constitution and laws of the United States. Pursuant to the argument presented below and the declaration and exhibits attached hereto, KANAELE submit and provide formal notice that this court is not “regularly constituted” and lacks lawful subject matter jurisdiction over the instant Complaint.

Elsewhere in the legal memo Kaiama relies on the case of Hamdan v. Rumsfeld, decided by the U.S. Supreme Court back in 2006.

If you don’t recall the case, here’s a summary:

Salim Ahmed Hamdan, Osama bin Laden’s former chauffeur, was captured by Afghan forces and imprisoned by the U.S. military in Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the district court ruled on the petition, he received a hearing from a military tribunal, which designated him an enemy combatant.

A few months later, the district court granted Hamdan’s habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission. The Circuit Court of Appeals for the District of Columbia reversed the decision, however, finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress and was therefore not unconstitutional.

I’ll leave you to ponder just how the case of Osama bin Laden’s driver is supposed to be considered comparable to that of a Hawaii resident and U.S. citizen arrested during a protest on Mauna Kea involving civil disobedience.

I’ll be returning in future posts begin to explain how misdirection, misrepresentation, and clear falsehoods have been used to take such arguments from the realm of the ludicrous to the marginally believable, at least to those who have consumed the current brand of Hawaiian sovereignty Kool Aid.

Be careful, it’s crazy out there!