Category Archives: Hawaiian issues

Opponents charge TMT with disrespect of the legal process

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Earlier this week, the Hawaii Supreme Court issued an order effectively blocking the resumption of construction a the Thirty Meter Telescope site on Mauna Kea by temporarily lifting the permit issued by DLNR for the TMT project.

The order was in response to an emergency motion filed on Monday by the attorney for plaintiffs seeking to block the TMT project from proceeding. You can read the emergency motion and supporting documents here.

The motion seems relatively thin on substance. It consists of a repetitious review of the legal history of the case, and accuses the TMT of a “blatant disregard and disrespect of the legal process” by attempting to take any steps prior to the court’s pending decision on the lawsuit challenging the original decision by DLNR to issue a permit for the TMT.

The matter was a little complicated, because the project is actually being built by the TMT Observatory International Corporation, made up of a consortium of institutions sponsoring the telescope. The corporation was not named as a defendant in the lawsuit, so the court couldn’t simply order the corporation to stop any work. The workaround taken in the motion was to ask for the permit to be temporarily stayed, which the court agreed to do.

I have to agree that the attempt to start any work related to the project prior to the court’s ruling on the case was a mistake. It’s hard to see that several weeks would make any difference in the long run.

But one has to wonder whether “respect for the legal process” will still be the order of the day for the Mauna Kea “protectors” if the Supreme Court’s ultimate decision falls short of fully blocking the TMT from moving forward. That’s obviously going to be the next political test.

Claims of war crimes on Kauai

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My Civil Beat column this week tackled another bizarre case created by David Keanu Sai, the political scientist who has been promoting his theory that the annexation of Hawaii by the U.S. never happened, and spinning out fictional accounts of what he claims are the results of that failed annexation.

Here’s the column lead:

It’s quite a story.

A Swiss citizen living with his family in a rural part of a peaceful, far-away island becomes a victim of war crimes perpetrated by an occupying power, his property pillaged and plundered, and his family home lost to a criminal fraud involving a cabal of government and corporate officials, while he lives in fear of retaliation for filing a war crimes complaint with his government.

It sounds like the product of an overly imaginative novelist.

But those alleged war crimes supposedly took place in Kilauea on the north shore of Kauai over the past five years, according to a criminal complaint filed with the Federal Attorney General in Berne, Switzerland, in January 2015.

The complaint was filed on behalf of a Swiss citizen living on Kauai who is, according to Sai, a the victim of war crimes.

Based on Sai’s theory that modern land titles in Hawaii are defective and essentially worthless because they were not done under the law of the Hawaiian Kingdom, the complaint argues that the Kauai man and his family have lost all the equity in their home and are left holding worthless property.

But I was able to identify the man, Yoshiko l’Hote, who is president of the Kilauea Neighborhood Association. State business registration records show he is also the agent for a new nonprofit organization, `Aina Ho`okupu o Kilauea, formed to manage the Kilauea Community Agricultural Center, a 75-acre agricultural park complex.

State real estate records show l’Hote and his wife own the home in Kilauea identified in the complaint. Far from being worthless, real estate records show it has almost doubled in value in the five years since they bought it.

Other evidence of war crimes? Well, l’Hote paid taxes to the state and federal governments, and Sai pointed to the taxes as evidence of “the war crime of pillaging under the guise of taxation.”

I reached l’Hote by phone and asked him about these rather ludicrous but serious allegations. He declined to comment, and referred these questions to Keanu Sai, who I was unable to reach. But he certainly didn’t sound like a man who had suffered a series of war crimes, that’s for sure.

Even though the complaint was dismissed in short order by Swiss authorities, Sai–who also claims the titles of Acting Minister of the Interior and chairman of the Council of Regency of the Hawaiian Kingdom Government–and his Hawaiian Kingdom Government were quick to claim a victory, claiming that the court recognized that an 1864 treaty between Switzerland and the Hawaiian Kingdom is still in force.

There’s nothing in the court decision to support this false conclusion, but that didn’t stop the Hawaiian Kingdom website from loudly proclaiming Swiss recognition of the long ago treaty. In fact, the whole Swiss complaint would have been unknown except that it was widely promoted by Sai’s Hawaiian Kingdom website and through press releases.

Some of the comments on the Civil Beat column are worth noting.

One reader wrote:

This is the man who convinced my friends and neighbors that they shouldn’t be paying their mortgage and because of that they were kicked out of their home. They made their own choices of course but you can’t trust anything he says.

He was likely referring to Sai’s role in the Perfect Title mess back in the 1990s, when Sai was convicted of attempted theft for his role in the Perfect Title scandal.

Another reader, Z Aki, wrote:

I know international law and I have been saying pretty much the same thing that Mr. Lind is now saying. In fact, I did multiple write-ups that have – in great detail – analyzed Sai’s misrepresentation of a number of events. I have provided this information to Sai – both to his face and in the comments of his blog.

Sai’s response, as you well know, was in the form of TWO attempts to have me expelled from William S. Richardson School of Law. Instead of engaging in scholarly discourse, Sai threatens other Kanaka Maoli with actions that would ruin lives.

That got my attention, so I dug around a bit. Apparently Aki had disputed an earlier claim by Sai about a different court case. Aki argued that either Sai was ill informed about the law, or was lying when he said that a state court had ruled that the Hawaiian Kingdom still exists.Rather than tackle the argument, Sai threatened.

Here’s what Sai wrote:

“In response to Zuri Aki’s inflammatory and malicious postings on this blog accusing me of lying is not only untrue, but is clear evidence of criminal acts of libel. According to Black’s Law Dictionary, libel is defined as “A method of defamation expressed by print, writing, pictures or signs. A false and unprivileged publication,” which attempts “to blacken a person’s reputation.” Under Hawaiian Kingdom law, libel is a crime, but under U.S. law it’s civil tort.

Mr. Aki is a naïve student whose irresponsible diatribe has just implicated three or more professors at the law school in this criminal act. These three professors are David Cohen, Diane Desierto, and Carole J. Peterson. This is not only a criminal matter, but also a university matter because I am also a faculty member of the University of Hawai‘i Windward Community College.

On January 30, 2015, I wrote a formal complaint to the Dean of the Law School, but he chose not to hold these three professors and Mr. Aki accountable. This failure to do so is what led to the ultimate commission of the crime of libel. I will be initiating proceedings in a timely fashion and before the proper authorities.”

It’s funny that Sai raises the issue of libel.

In the complaint filed with the Swiss government, Sai alleged that several current or former state officials, cited by name, are guilty of war crimes, and in another section accused the person who notarized the deed to Mr. l’Hote’s Kilauea property of criminal fraud.

Those are far closer to libelous accusations than disputing Sai’s historical arguments.

Na`i Aupuni officials defend Native Hawaiian election

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With the period to cast ballots in the election for delegates to a Native Hawaiian constitutional convention almost half over, election administrators sent out an email blast to registered voters targeting those who have protested the election.

“The Na`i Aupuni election of delegates and ‘Aha is the best opportunity Native Hawaiians have to move forward and positively change the status quo of Native Hawaiians,” the email argues, while “protesters have not proposed an alternative plan to form an effective government or bring about unity among Native Hawaiians.”

The email and its timing would appear to indicate that the protests, and calls for a boycott of the election, are having an impact, forcing election officials to respond.

Below is the full text of the email.

Move forward and vote despite protesters discouraging your vote or discrediting candidates’ desire to lead.

Protesters are concerned that their desired outcome will not prevail at the ‘aha. But, leadership is about bringing your voice to the table and advocating your views to other leaders – not walking away from the table. Na`i Aupuni has set up a process whereby elected leaders can discuss various options and issues to find a consensus so that the Native Hawaiian community may proceed forward in unity.

The protesters argue that the outcome of the Na‘i Aupuni process is predetermined. But how can the outcome be “rigged” when it involves 200 candidates campaigning for votes from 89,000 potential voters for 40 delegate seats to participate in an 8 week convention?

During the first week of the ‘aha, the delegates will hear from experts on constitution building, federal recognition, international law including de-occupation, de-colonization and the rights of indigenous people under international law, constitutional law, Kingdom law and the claim to the ceded lands. After that, the elected delegates will meet to share, compare, and test their different ideas – exploring what it will take to reach consensus among Hawaiians regarding self-governance. If the delegates create a self-governance document or propose a government, voters will take part in a ratification vote.

The Na`i Aupuni election of delegates and ‘Aha is the best opportunity Native Hawaiians have to move forward and positively change the status quo of Native Hawaiians. Proceed, just as did those who came before with strength and determination – and vote – even though others have attempted to discourage you or discredit a diverse group of 200 leaders who have bravely risen to the call as committed, caring, and conscientious candidates who are asking for your vote.

The protesters have not proposed an alternative plan to form an effective government or bring about unity among Native Hawaiians.

Guessing likely turnout in the Na‘i Aupuni/Hawaiian delegates election

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I was scrambling yesterday afternoon to find a good issue to tackle for my Civil Beat column when I decided to look through the actual proposed rule promulgated by the U.S. Department of the Interior, ” “Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community.”

Here’s a link to the Civil Beat column (“Setting A Low Bar For Hawaiian Vote“).

The preliminary sections review various comments made during the 2014 initial hearings which led to this proposed rule. Comments are summarized on each point, followed by the department’s assessments and whether/how the comments were incorporated into the proposed rule.

I soon pinged on a section starting on page 59124 which discusses the ratification process that any proposal coming out of the upcoming aha, or Native Hawaiian constitutional convention, to be held early in 2016. The Interior Department struggles here to balance varied concerns.

The question is how much support should any proposal have to get among Hawaiians in order to be seen as a mandate for moving ahead to establish a new government? Is tepid support enough? Is a lot of support among a small segment of Hawaiians enough? Should non-participation by Hawaiians in voting for delegates and for any eventual plan proposed by the convention be considered opposition? Or dismissed as irrelevant?

The Department of the Interior’s rule sets out their answer to these questions.

On the one hand, according to the commentary, the department recognizes the importance of staying out of the way and letting Hawaiians themselves work out how to proceed, where they want to go, and how to get there.

On the other hand, they can’t totally fade away since the whole point of this effort is to provide a degree of legitimacy to the whole process. What this section does is to present the department’s recommendation for a minimum level of community support that any proposal for a new governmental structure would have to get if and when it is ultimately presented for an up or down vote by Hawaiians.

They throw around numbers drawn from the 2020 Census, which puts the total number of Hawaiians and part-Hawaiians in the U.S. at some 527,000, with more than half–290,000–residing in Hawaii. They then estimate the number of adults eligible to vote (an estimated 65% of all Hawaiians thought to be 18 or older).

Then they move to determine just how much support any proposal coming out of the aha will have to receive in order for the Interior Department to find that it has enough community backing to be seen as legitimate, and setting up a recommendation to begin negotiations government-to-government between the new “entity” and the federal government.

In some ways, this is a no-win effort. Setting any minimum requirement as part of the proposed rules will be certainly seen by critics of the process as another example of government control over what they believe should be a completely independent process from Day 1. On the other hand, without a vote that shows a significant level of community support for any proposed Hawaiian governmental entity, it would be politically impossible for the department to recommend moving forward with federal recognition.

What caught my attention is that they recommend taking into account the generally low level of participation in elections in Hawaii, where perhaps just over half of registered voters–and perhaps a third of eligible voters–cast ballots.

Applying that standard, the department proposes that 50,000 votes in favor of a proposed Hawaiian government would be considered a success, while less than 30,000 votes would be considered a failure. Anything in between, it appears, would be subject to the department’s interpretation at the time.

As I wrote in the column:

Using these figures, the proposed Hawaiian government would need approval of just a little more than one out of four adult Hawaiians living in the State of Hawaii (26.5%) , and just 15 percent of all adult Hawaiians in the U.S. as a whole, to be seen as a success with “considerable” community support.

Frankly, it seems to me that there needs to be a lot more discussion of what should be required before moving forward with any proposal.

I would also recommend at least browsing through the background materials provided by the Interior Department’s commentary that accompanies the proposed rule. For example, there’s a section (on page 59117) on political action in the Hawaiian community in modern Hawaii which is a good reminder that there has been lots of organizing on related issues going back decades.

C. Actions by the Continuing Native Hawaiian Political Community
Native Hawaiians maintained a distinct political community through the twentieth century to the present day. Through a diverse group of organizations that includes, for example, the Hawaiian Civic Clubs and the various Hawaiian Homestead Associations, Native Hawaiians deliberate and express their views on issues of importance to their community, some of which are discussed above. See generally Moolelo Ea O Na Hawaii, 434–551; see id. at 496–516 & appendix 4 (listing organizations, their histories, and their accomplishments). A key example of the Native Hawaiian community taking organized action to advance Native Hawaiian self-determination is a political movement, in conjunction with other voters in Hawaii, which led to a set of amendments to the State Constitution in 1978 to provide additional protection and recognition of Native Hawaiian interests. Those amendments established the Office of Hawaiian Affairs, which administers trust monies to benefit the Native Hawaiian community, Hawaii Const. art. XII, sections 5–6, and provided for recognition of certain traditional and customary legal rights of Native Hawaiians, id. art. XII, section 7. The amendments reflected input from broad segments of the Native Hawaiian community, as well as others, who participated in statewide discussions of proposed options. See Noelani Goodyear-Kaopua, Ikaika Hussey & Erin Kahunawaikaala Wright, A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty (2014).

There are numerous additional examples of the community’s active engagement on issues of self- determination and preservation of Native Hawaiian culture and traditions. For example, Ka Lahui Hawaii, a Native Hawaiian self-governance initiative, which organized a constitutional convention resulting in a governing structure with elected officials and governing documents; the Hui Naauao Sovereignty and Self-Determination Community Education Project, a coalition of over 40 Native Hawaiian organizations that worked together to educate Native Hawaiians and the public about Native Hawaiian history and self-governance; the 1988 Native Hawaiian Sovereignty Conference, where a resolution on self-governance was adopted; the Hawaiian Sovereignty Elections Council, a State-funded entity, and its successor, Ha Hawaii, a non- profit organization, which helped hold an election and convene Aha Oiwi Hawaii, a convention of Native Hawaiian delegates to develop a constitution and create a government model for Native Hawaiian self- determination; and efforts resulting in the creation and future transfer of the Kahoolawe Island reserve to the ‘‘sovereign native Hawaiian entity,’’ see Haw. Rev. Stat. 6K–9. Moreover, the community’s continuing efforts to integrate and develop traditional Native Hawaiian law, which Hawaii state courts recognize and apply in various family law and property law disputes, see Cohen’s Handbook of Federal Indian Law sec. 4.07[4][e], at 375–77 (2012 ed.); see generally Native Hawaiian Law: A Treatise (Melody Kapilialoha MacKenzie ed., 2015), encouraged development of traditional justice programs, including a method of alternative dispute resolution, ‘‘hooponopono,’’ that is endorsed by the Native Hawaiian Bar Association. See Andrew J. Hosmanek, Cutting the Cord: Hooponopono and Hawaiian Restorative Justice in the Criminal Law Context, 5 Pepp. Disp. Resol. L.J. 359 (2005); see also Hawaii Const. art. XII, § 7 (protecting the traditional and customary rights of certain Native Hawaiian tenants).

In any case, there are lots of interesting and perplexing issues to be sorted out.