As the protests and civil disobedience against the planned Thirty Meter Telescope on Mauna Kea continue, and those arrested are being processed through the courts, one of the repeated themes is the belief the mountain’s self-described “protectors” can’t be charged with violating state law because the State of Hawaii has no jurisdiction over them.

It’s the kind of claim that calls for a closer look to clarify what’s being asserted by the protesters/protectors.

An attorney representing at least seven TMT defendants argues the criminal charges of obstruction should be thrown out because “the Hawaiian Kingdom still lawfully exists and that the United States doesn’t have jurisdiction over the matter,” according to a recent story in the Hawaii Tribune-Herald.

The attorney, Dexter Kaiama, has raised this “Kingdom defense” in identical motions to dismiss filed on behalf of several of his clients, a check of court records confirms.

A TMT protester is arrested after refusing to move out of the way of a motorcade headed up the Mauna Kea access road last month.

Cory Lum/Civil Beat

The Argument

In each case, the argument presented by Kaiama is the same.

“Defendant… assert(s) that this Court lacks subject matter jurisdiction because the Hawaiian Kingdom continues to exist as a state pursuant to international law and has been under a prolonged and illegal occupation since August 12, 1898 by the United States of America pursuant to State of Hawaii v. Lorenzo, 77 Haw. 219, 883 P.2d 641 (1994),” the motions argue.

Kaiama rests much of his argument on the historical theories of David Keanu Sai, whose controversial analysis of the overthrow of the Hawaiian Kingdom and its aftermath has become a rallying cry for many young sovereignty activists.

Sai first broke into the headlines back in the mid-1990s when he was convicted of attempted theft when his company, Perfect Title, issued bogus Kingdom deeds that clouded titles of properties facing foreclosure. He has since become the most cited proponent of the idea that the Kingdom still exists, more than a century after Hawaii became a U.S territory and, finally, a state.

David Keanu Sai has become the most cited proponent of the idea that the Kingdom still exists, more than a century after Hawaii became a U.S territory and, finally, a state.

As a result of the supposed illegal occupation, Kaiama argues, “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 Article 43, 1907 Hague Convention IV (36 U.S. Stat. 2277).”

These are military courts “established as ‘the product of military occupation,’” the motion argues.

And so, according to Kaiama, the charges should be heard by a military court, if at all. The District Courts have no jurisdiction and the Mauna Kea cases need to be dismissed, he argues.

The documents are rich with footnotes and case citations, woven together to give the impression of an impregnable legal argument. 

The result, it seems, is a siren song to those for whom the ongoing existence of the Hawaiian Kingdom is more a matter of faith than a point of historical accuracy.

Never mind that the same argument has been shot down over and over again when used in both civil and criminal proceedings before state and federal courts. This record doesn’t seem to deter the true believers.

And there’s a hidden benefit here for attorneys who pursue this line of argument. When the legal argument fails in court, those enthralled by its “obvious” validity can blame the bias of the courts, the power of the occupiers, and a continuing non-native conspiracy for the outcome while keeping their beliefs, and the reputations of their attorneys, intact.

The Prosecutor’s Reply

To prosecutors, the answer has been short and simple. They refer defendants to the Hawaii Supreme Court decision in the case of State of Hawaii v. Dennis Kaulia, decided in January 2013. It’s one of a string of Supreme Court cases that spell out clear limits to the idea of sovereignty.

In this case, the defendant, Kaulia, was charged with assault after a fight in a shopping center parking lot in Kona. One defense he put forward was the same “lack of jurisdiction” argument based on the continued existence of the Hawaiian Kingdom.

The Hawaii Supreme Court spent little time in shooting down this part of his defense, affirming “the [S]tate’s criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawaii.”

Further, the court ruled, “we reaffirm that “[w]hatever may be said regarding the lawfulness” of its origins, ‘the State of Hawaii . . . is now, a lawful government.’ Individuals claiming to be citizens of the Kingdom and not of the State are not exempt from application of the State’s laws” (case citations removed).

So even if, for the sake of argument, Kaulia were a citizen of the Kingdom, he would still have to comply with state and local laws, in the same way that foreign tourists must obey our laws.

“Individuals claiming to be citizens of the Kingdom and not of the State are not exempt from application of the State’s laws.” — Hawaii Supreme Court ruling

The Kaulia decision in turn cites the earlier case of State of Hawaii v. Harry Fergerstrom, in which the court ruled the state “has lawful jurisdiction over all persons operating motor vehicles on public roads or highways within the State of Hawai`i.”

“Persons claiming to be citizens of the Kingdom of Hawai`i and not of the State of Hawai`i are not exempt from the laws of the State of Hawaii applicable to all persons (citizens and non-citizens) operating motor vehicles on public roads and highways within the State of Hawaii,” the court held.

There have been numerous other court decisions rejecting the same Kingdom defense. In fact, Kaiama’s own motion to dismiss the TMT criminal charges notes there have been 41 cases brought before Hawaii’s Intermediate Court of Appeals and six cases before the Hawaii Supreme Court over the last two decades in which the courts rejected the argument that the state lacks jurisdiction because the Kingdom still exists. But despite this record of failure, Kaiama seems to retain faith that at some point, the magic elements of the argument will suddenly fall  into place and the Kingdom will at last be recognized.

In my opinion, it doesn’t take a very long look at the court record to label this wishful thinking, at best.

I can understand and sympathize with those who rely on the Kingdom defense in order to make a very public political statement that they oppose the state’s policy for development of Mauna Kea. That’s well and good. But they shouldn’t have any expectation that this particular defense has any chance of prevailing in court or shielding them from the legal consequences of civil disobedience.

Asserting the jurisdiction of the Kingdom may make for lively political theater, but as a legal argument, it’s clearly a loser. And holding the approach out as a realistic legal strategy does  a disservice to these and other potential defendants.