It is 2009. I sit in an air-conditioned courtroom in Hilo, Hawaii watching “Rocky” Awai who stands nervously moving from just outside the bar and in about two feet. The bar is the half-wall that separates the public from the proceedings and signifies the jurisdiction of the court. Dressed in army fatigues and slippers, his long black hair is tied back, he peeks at me and smiles. His court appointed lawyer shuffles through his papers. He is dressed in a dark blue suit that looks two sizes too big for his slight frame and it has the feel of something he only wears in court.
“Is your client going to come into this court or not?” Judge Freitas asks the young lawyer, Gary Zamber.
“My client informs me that he is here under threat and in fear of his life and comes before you to preserve his liberty. He also asserts,” Gary quotes: “You don’t have any jurisdiction over me. I am not an American citizen.”
“Yes, counselor you have made that clear but is he going sit with you or…”
“Can he stand just outside the bar?”
“He can stand there if he likes,” the judge says curtly.
The judge attempts to arraign Rocky on 12 traffic tickets given by two officers, no drivers license, no insurance and no safety inspection — all of which he is guilty of non compliance under State of Hawaii law.
“I am sorry Judge, but I would like to offer a motion to remove myself from this case.” Zamber interjects.
“Is there a problem Mr. Zamber?”
“Yes Judge, My client says that he is a citizen of the Kingdom of Hawaii and that this court has no Jurisdiction to try him. He informs me that this prosecution of him is criminal and in my research I have to agree. The Apology Bill states…”
“I have warned you before about bringing the Apology Bill as a source of…”
“He also informs me that he is under Geneva 4 and the court is bound by that or the laws of occupation and should be treated under those jurisdictions. I would like the court to take judicial note of…”
“Do you have a copy of this Geneva 4 and are we a signatory of this convention?” the judge interrupts.
“You can find it online; it is readily available and I believe we did sign…”
“You cannot expect me to take judicial notice if you do not supply the proper documents, but anyway what is your problem in defending your client exactly?”
“My conscious and my ethical sense are that I am participating in a criminal act and that I cannot in good conscience…”
“Councilor your motion is denied, proceed…”
“I object to…”
“It is noted, now get on with you defense.”
The prosecutor gets through to the arraignment after counsel for the defendant objects to every procedure and the judge looks down at Rocky and says, “How does your client plead?”
“My client does not recognize the jurisdiction of the…”
“How does he plead? [No answer] I can state for the record that Mr. Awai is looking at the ground and is making no response, so I will enter a Not guilty plea for him.”
“Your Honor.” Interjects the Prosecutor, who stands awkwardly on one high heel. “I have to inform the court that officer Kealoha informs me that he cannot remember the defendant and I move to dismiss those tickets.”
“You mean to tell this court that the officer cannot reconstruct from his ticket or notes of the traffic stop to go ahead with trial?”
“He so informs me.”
The judge looks exasperated and impatiently asks.
“Are you ready to go ahead with the other Officer to try that case?”
“I am your Honor.” The prosecutor looks at me with a stern look and then over at my friend Keoni Chang.
“Your Honor, if the defense has witnesses in the court, can the court instruct them to leave during trial?”
“Your Honor,” replies Zamber. “I had hoped to call government officials of the Kingdom but they inform me that they will only appear with proper internationally served subpoenas.”
“I see Mr. Chang sitting there and I know he is a member of a Sovereignty group and what is to prevent me under my jurisdiction from holding Mr. Chang and bringing him back by order of this court to testify?”
“I don’t know you honor,” Zamber replies. “As I told the court I should be removed because I am not qualified to answer these points in law. If it please the court, I will speak to him and see if he will voluntarily leave.”
Gary goes over to Keoni. I hear him say as they leave, “I am willing to take the fall, let him try to arrest me!”
Keoni agreed to wait for the subpoena and left. The prosecutor looks again at me surprised having expected me to leave. As I sit there I am trying to anticipate what I am going to answer when they ask me “Who are you and what business do you have with the court?” I had constructed a great story about one of my subjects being mistreated by the US court system and having to prepare a report for the [I just found out is now defunct] UN commission on human rights. I was wasting my time. When the trial resumed officer Choi states on the stand he too cannot remember the defendant. The prosecutor asked him to review the summons. He reviews the ticket carefully and admits it is his handwriting. He returns the ticket to the prosecutor and she asked him “What did you charge the defendant with?”
“I am sorry I cannot remember.”
“I just showed you the ticket officer Choi!”
Rocky asks the judge if he can take a piss. “And how long will that take?” “I don’t know judge, but I gotta go”
“We are in recess for five minutes.”
When Rocky returns he asks if I am “doing alright.”
“Just fine,” I say.
“When are they going to ask me the question? I am ready for ‘em.”
Rocky never had the chance to say what he had been told to answer. When we resumed, the weary prosecutor had to inform the court that this officer said he too could not remember sufficiently to go on.
How is it, you would ask me, that a person can come into a court in the State of Hawaii totally guilty of violating traffic laws and leave with all his tickets dismissed? I will get back to that question later.
A few days after that, I found myself in another court, The Supreme Court of the United States. The State of Hawaii was a appealing the Hawaii Supreme Court’s injunction stopping the sale of “Ceded Lands”. This is a land trust covering nearly one half of the Hawaiian Islands. The Office of Hawaiian Affairs had sought the injunction against the State until a so called “settlement” with “Native Hawaiians” was reached.
The land was set aside by the Hawaiian Monarchy for the benefit of the people of the Hawaiian Kingdom. When the Americans seized Hawaii illegally in 1893, they coveted all of Hawaii’s resources. In an attempt to make this seizure appear legitimate, they kept these lands in trust and appointed themselves as trustees. It has been a trust in name only, each successive government helping themselves to the monies and land for one hundred and sixteen years.
In the 1970’s as the result of a reawakening of Hawaiians to their culture and history, pressure was brought to bear on the State for a just allocation of Native Hawaiian resources. The State not wanting to give up anything, formed the Office of Hawaiian Affairs [OHA], to administer for the Native Hawaiians, moneys derived from revenues from the use of the “ceded lands.”
Hawaiians in the past sixteen years of OHA’s existence have continued to hope that it was going to serve their interest. Alas, only a fraction of what is owed has been dispensed by the state. And of that very little money has been used for people outside of the circle of OHA’s friends. This failure has led to Hawaiians getting fed up, relinquishing U.S. citizenship and repatriating themselves into the Hawaiian Kingdom.
I was one of the few people who got a seat to hear oral arguments in the Supreme Court. The question before the court was whether or not the Apology clouded the title the State held on the “Ceded lands.” The argument between OHA and the State of Hawaii were essentially the same. So what were they arguing before the court? And that is exactly what the Justices asked. Justice Souter interjected, “This whole case seems murky to me. Am I missing something?”
I looked over at Haunani Apoliona, chair of the OHA Trustees. Her face was pensive. I could see their greatest fears were materializing. The parties did not want the court to address the issue of title and for one hour most of the court’s discussion centered on just that, title, ownership of the land.
Well hasn’t the ownership of the land in Hawaii long been settled?
It was surreal to hear the State’s Attorneys General Mark Bennett argue, “Yes we illegally overthrew the Hawaiian Government,” and then to go on to argue the State had “Perfect Title.” Am I missing something, too?
I left the court to a cold sunny Washington DC February day. Liko Martin [A well known Sovereignty activist, musician, composer- “Waimanalu blues”] was outside the court after the case was accepted. He was wearing a cowboy hat, a clean pressed suit and freshly shaven. I was taken aback; he looked very different from our last meeting on the beach at KaWa, in Ka’u Hawaii. Liko had been bearded and mud covered, spending much of his time working in the lo’I [Taro patch]. We had been living rough with Abel Simeona Lui, a real champion of the sovereignty movement. A Kanaka Ma’oli who moved back to the land and despite repeated arrest for trespass managed to solidify his land claim.
“Liko cleans up good!” My friend Hanalei points out with the same surprise as mine as Liko maneuvers around the Supreme Court plaza with a film crew in tow.
“Hey brah, Howzit? We wen file an intervention with the court, kay?” Liko said to me.
I asked him on what basis did he file?
“That we are the true owners and that we need to enter into direct and immediate negotiations, kay!” I could see the OHA people seemed devastated and I saw Haunani Apoliona scowl at Liko’s show of force from across the plaza.
“OHA just hurt itself by arguing the Hawaiian’s had no legal claim to the land and only a moral one in State Law,” I told him.
“The State is dead brah, it’s dead” Liko answered.
I thought to myself what just happened. It had felt like we were in the court case and the justices were arguing our position. It struck me that the Office of Hawaiian Affairs changed their position to bolster the State of Hawaii’s claim to “Perfect Title”. I realized that if the State doesn’t have title, then OHA has nothing. So who represents the Hawaiian’s interests?
The Apology bill is a sorry thing.
Have you read it? Liko Martin calls it a confession, I call it a stipulation of facts and our Attorney General for the Hawaiian Kingdom Tom Anthony calls it “Crap”. He is right of course, it is crap. If it had been anything else but crap the Hawaiians would now be living on their own land in their own jurisdiction.
From the Apology Bill 103-150: “Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”
It is because of statements like this that Hawaiians wave this bill as proof. It also may be why our friend Rocky got all those tickets dismissed. Judge Freitas may also believe if he let the attorney Gary Zamber bring this Apology Bill into the case he might slip up and create a federal question. And what is that federal question?
Rocky said it to the court “You don’t have any jurisdiction over me. I am not an American citizen.”
So why is a traffic case in a small Hawaiian town connected to a Supreme Court case between the State and a State agency? My Uncle Moses He’anu would say “Do your homework!”
I’ll tell you anyway. It is because the United States of America has never been able to substantiate any lawful claim in Hawaii, period.
The Americans admit they stole the land and barred us from seeking relief in the courts and yet argue their title is “Perfect.” Everyone knows this is unjust yet they expect us to accept it. Would you?
I spoke to a pro bono legal agency this morning who told me our case is seen as frivolous. I spoke to an Indian lawyer who told me to be practical and that you can’t win on the law. Do we go to the courts as a legal fiction? I look at the law and we win. That is if we are before an impartial jurist and we note the US courts have an interest in the outcome.
That’s us, do things right, Malama Pono. We can’t find any statute of limitations to file against the US occupation. We can’t build on facts that are “Murky” to file a brief that hopes the Americans will finally do the right thing. We should not have to go to court for America to do the right thing.
Gary Zamber doesn’t know how he won Rocky’s case and how we get all of these cases dismissed. We must have gotten 25 cases dismissed so far and for us that is a failure. We want the court to rule on these issues. They know and we know that the State of Hawaii’s legal basis cannot stand the smell test! Recently the State of Hawaii is preparing to pass a law that if you want a driver’s license you must accept their sovereignty.
“Can you believe it?” Tom Anthony bellows. “The State is fighting for sovereignty, not us!”
As I am leaving to say goodbye to everyone in Hilo, Hawai’i my friend Kalei always says, “Thanks for coming to visit Hawai’i and please take someone home with when you go! A hui hou.”
The foregoing was written almost three years ago. Since the hearing of the case and the ruling and opinion by Justice Alito a few things have happened. The opinion read like instruction on how the Hawaiian people should address their interest in the Crown trust. The State tried to dodge the order by the Hawaii State legislature creating new rules about selling Hawaiian trust lands [with a 2/3 vote needed].
Claiming the case is moot [dead] until an attempt to sell land comes up. The state is in default of the SCOTUS order to find an injunction based on Federal law and not the Apology Bill. The State most likely will run screaming from the room if they are ever faced with the beneficiaries coming forward.
What stands in our way at the moment is money and organization. It will happen someday soon and the law, Hawaiian Kingdom law will prevail. If not, than all trust law will be gutted and the State will be the only holder of land interests in America.
Kai Landow Vice Consul
Hawaiian Embassy in New York