The Hawaii Supreme Court has administered a mild but still meaningful rebuke to a prominent proponent of the thesis, now in vogue among certain parts of the Hawaiian sovereignty movement, that the Hawaiian Kingdom was never legally made part of the United States and therefore continues to exist as an independent nation.
It came in the form of a public reprimand of a lawyer for accusing a state judge of committing war crimes.
In an “Order of Public Censure” filed May 1, the Supreme Court unanimously affirmed findings of the Office of the Disciplinary Counsel that attorney Dexter Kaiama committed several violations of the Hawaii Rules of Professional Conduct in 2012 when he accused Circuit Court Judge Greg K. Nakamura of being a “war criminal.”
Kaiama, who has been a practicing attorney for 30 years, has been active in numerous cases involving Hawaiian issues. He currently represents KAHEA: The Hawaiian-Environmental Alliance in the contested case hearings on the Thirty Meter Telescope.
The allegations triggering the disciplinary action were made in a July 6, 2012, letter addressed to then-Pacific Commander Adm. Samuel J. Locklear III. The letter was titled, “Violations of International Law: Protest and Demand.” A copy was filed in state court the following week as a “Notice of Protest.”
It identified the “alleged war criminal” as Nakamura, and the “war crime victim” as Kale Gumapac, who was facing foreclosure and eviction from his Big Island property after ceasing to make mortgage payments to his bank. Gumapac’s case was being heard in Nakamura’s courtroom.
Kaiama, in the letter to Locklear, referred to an Army field manual on the law of war, and said Nakamura “committed a war crime by willfully depriving” Gumapac “of a fair and regular trial prescribed by the Geneva Convention, IV.”
Further, Kaiama wrote, a second war crime would result if Nakamura ruled in favor of the bank because “private property cannot be confiscated” by an occupying force under the Geneva Conventions.
Nakamura responded by filing a complaint with the Office of the Disciplinary Counsel in August 2012, asking it to investigate Kaiama’s actions.
“The notice states that I have committed a ‘war crime,’” Nakamura complained. “The notice serves no useful legal purpose and, therefore, in my opinion, it is designed to harass me as the decision maker.”
“Please investigate,” the judge asked.
Slow-Moving Wheels Of Justice
Following a hearing and extended legal arguments, the ODC’s report and recommendations were submitted to the Supreme Court in July, 2016, nearly four years after the judge filed his complaint, and the court’s decision finally emerged nearly 10 months later.
The ODC called Kaiama’s “war crime” allegations “patently false.” And neither ODC nor the court gave credence to the views of Keanu Sai, whose historical theory of the kingdom’s continued existence is now accepted as gospel by a significant faction of the Hawaiian sovereignty movement.
For starters, ODC pointed out the obvious: “The State of Hawai’i is not at war with any nation, including the United States of America.”
Citing the same Army manual, ODC argued that the law of war applies when there is “armed hostility between States … usually accompanied by a declaration of war.”
“Absent war, no objectively reasonable attorney could possibly arrive at the conclusion that Judge Nakamura is a war criminal,” it concluded.
And the Supreme Court agreed.
“We conclude that Respondent Kaiama’s allegations are clearly false upon the evidence in the record, as Respondent Kaiama has not proffered any evidence the Judge in question has been convicted of war crimes by any court or tribunal,” the court ruled.
The court further agreed with ODC’s finding that the document containing the war crime accusation was a “frivolous document that served no legal or practical purpose,” and that Kaiama had “knowingly harassed and embarrassed” the judge, in further violation of court rules.
The court stressed that it was the “war criminal” allegation that warranted the public censure, and “not for his arguments in the underlying litigation that the court lacked jurisdiction because of the continued existence of the Kingdom of Hawaii.”
The court also ordered Kaiama topay the costs of the ODC’s investigation and proceedings.
Island-Style Alternative Facts
The propositions that somehow the Kingdom of Hawaii still legally exists and Hawaii statehood is therefore just a fiction present a troublesome set of alternative facts which have created a haven for scofflaws and swindlers. If the government and courts are viewed as fictions, then laws, contracts and all sorts of things can be righteously ignored by believers. Mortgage lenders, title companies, and courts have all been dealing with increasing instances where their legitimacy and authority is being challenged.
The basic idea is somewhat twisted, but relatively simple.
It begins with the premise that the United States does not have a legal claim on Hawaii, and the Kingdom of Hawaii continues to exist as a matter of international law. It’s a controversial historical theory promoted for years by Keanu Sai, a political scientist who is also a self-proclaimed official of one of the groups claiming to speak for the Hawaiian Kingdom.
In practical terms, the theory doesn’t have to be correct as long as people are willing to accept it as such, relying on its obscure references, abundance of fine-print footnotes, implicit but untested assumptions and an ample dose of misrepresented facts.
But if the kingdom still exists, why is Hawaii still an integral part of the United States? According to the theory, it’s because the islands have been subjected to a military occupation that started with the overthrow of the monarchy in 1893 and has continued to the present.
Here’s the tricky part. If Hawaii is an occupied territory, then it’s subject to international agreements—including the Geneva Conventions — governing the treatment of those under hostile military rule.
That gets you to the proposition that a state judge could be considered a war criminal for enforcing the law to collect a debt from a homeowner in foreclosure.
And that’s why the Supreme Court’s action is important. It’s another incremental step in reminding people that when you live and work in the real world, there are consequences for clinging to those alternative facts, however ideologically appealing you think they might be.
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Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for more than 20 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.