A sign of things to come?
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A judge says she can’t rule on whether Hawai‘i is a sovereign nation

Politics / When leaders of the Reinstated Hawaiian Nation traveled to Kahoolawe in July 2006, they were intending to stake a claim to all the lands owned by the Kingdom of Hawaii when it was illegally overthrown in 1893.

Instead, three Nation citizens—Prime Minister Henry Noa, Nelson Armitage Sr. and Russell Kahookele—were found guilty last Friday of trespassing on the island preserve after Maui District Court Judge Simone C. Polak issued a seemingly contradictory ruling that “the Defendants failed to prove the Reinstated Nation of Hawaii is a sovereign native Hawaiian entity and the Court lacks authority to make such a determination.”

Coming on the heels of last week’s “ceded lands” decision by the U.S. Supreme Court, which found that Hawaiian property rights were a matter to be determined under state, not federal, law the Kahoolawe case raises new questions about whether the court system is the proper forum for resolving questions of Hawaiian sovereignty.

“Judge Polak ruled the issue of Hawaiian nationwide belongs in the Legislature, and courts can’t decide what should be decided by the Leg,” said Kauai attorney Dan Hempey, who represented the three Nation citizens. “Both courts have sent a pretty clear message to the Legislature that if Hawaii wants something done about it, that’s where it’s gotta be done. There’s clarity in these decisions, but it may not be what people want to hear.”

Although Noa and the others were expecting the guilty verdict after failing (through two-and-a-half years of legal proceedings) to prevail on their sovereignty defense, Friday proved to be an emotional day in court.

Prior to sentencing, Noa addressed the judge and said he was not trying to break state law, but rather fulfill the obligations required of emerging sovereigns under international law. When Noa and others formed a provisional government in March 1999, they were operating under a simple concept. Since sovereignty was never relinquished, they reasoned, it need not be asked for, given back or granted, but instead, simply reclaimed and reinstated, essentially picked up where it left off in 1893.

Over the past decade, supporters have worked to establish the Nation’s authority to be recognized as the lawful government of Hawaii by drafting citizenship rules, registering voters, holding elections, passing laws and adopting a constitution that is an updated version of the one in effect when the monarchy was overthrown.

“Under international law, when a nation returns, it has the right to reclaim what the government rightfully possessed,” Noa said following his arrest. “When we did the action of reclaiming Kahoolawe, it was based on the fact that we have fulfilled our obligation as a government to establish [that] we can come forward and exercise that right.”

Kaho’olawe was a likely place to start the reclamation process, Noa said, because it has no permanent occupants or “third party” landowners to complicate legal issues. It is also the one piece of land in the Islands specifically earmarked for return to a Hawaiian sovereign entity, and it is being held in trust by the state until that occurs.

The state Legislature’s promise of sovereignty, but subsequent inaction, leaves sovereignty advocates with no avenue of recourse but the courts, Noa told Polak during sentencing proceedings. The three men were ordered to perform 25 hours each of community service, with the sentence stayed pending appeal.

While the judge seemed sympathetic, and noted the defendants’ sincerely held beliefs, she said there were many issues in the case for another court to decide. “What she essentially said was she has the authority to try them on trespassing charges, but she doesn’t have the authority to decide the issue that would defend the trespassing charges,” Hempey explained.

Polak also noted that it was, so far as she knew, the first time anyone had ever actually tried to prove the existence of a nation as contemplated in the landmark case of State v. Lorenzo, which set for a seven-point test nationwide.

“The Hawaii courts are filled with people who say ‘you can’t try me, I’m a Hawaiian citizen’ under the so-called ‘sovereignty defense,’” Hempey said. “This has been going on for 50 years and the courts keep dabbling in the issue, but don’t come up with anything firm. We sought to prove the existence of a nation, and we did it. Then the court says it can’t decide the issue, it’s gotta be political. It’s really the court punting to the Legislature.

“The state has passed all these laws that dance around the issue and say we feel so bad about what we did to the Hawaiians,” Hempey continued. “These rulings are like the courts are screaming at the Leg, step up to the plate. Somebody’s got to be a leader here and put this into the public debate.”