In December of 2019, the Guild membership passed a resolution submitted by the Hawaiian Kingdom Subcommittee calling “upon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.” On January 13, 2020, the Guild then called “upon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893.” The following year, the International Association of Democratic Lawyers also called “upon the United States to immediately comply with international humanitarian law in its prolonged occupation of the Hawaiian Islands—the Hawaiian Kingdom.”
On August 11, 2021, the Hawaiian Kingdom filed an amended complaint for declaratory and injunctive relief with the United States District Court for the District of Hawai‘i for United States violations of international law in its prolonged belligerent occupation since January 17, 1893. In the nineteenth century, the Hawaiian Kingdom was an internationally recognized independent State and in 1997 its government was restored by a Council of Regency. The Hawaiian Kingdom addressed the court’s presence within Hawaiian Kingdom territory in its jurisdictional statement.
Since 1959, the federal court in Hawai‘i has been operating as an Article III court by virtue of section 9(a) of the 1959 Hawai‘i Statehood Act, but its presence is unlawful as American municipal laws, including congressional legislation, have no effect beyond United States territory. In United States v. Curtiss-Wright Export Corp., the U.S. Supreme Court stated, neither “the Constitution nor the laws passed in pursuance of it have any force in foreign territory.” Justice Story, in Picquet v. Swan, noted that “no sovereignty can extend its process beyond its territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority beyond this limit is a mere nullity.” The Hawaiian Kingdom stated in its amended complaint that the court’s “jurisdiction is found as a de facto Article II Court,” which are federal courts operating in foreign territory under the occupation of the United States such as Germany from 1945-1955.
On August 17, 2021, the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protector Legal Collective, as Amici, filed a motion for leave to file an amended amicus curiae brief. The authors are Guild members Natali Segovia and Joseph Chase, with Marti Schmidt as copy editor. The Amici’s request for leave noted the brief was submitted “to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.”
In a September 30, 2021, order, Federal Magistrate Judge Rom Trader granted leave. The Amici filed their amicus brief on October 6. In it, they stated that the “purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.” The brief also went on to state that the “question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.”
Magistrate Judge Trader’s order noted that the “Court, having carefully reviewed the Motion and attached brief, records and files in this case, and the applicable law, GRANTS the Motion.” The Order further stated when “determining whether to grant leave to file an amicus brief, courts consider whether the briefing ‘supplement[s] the efforts of counsel, and draw[s] the court’s attention to law that escaped consideration. … The amicus may be either impartial or interested individuals, whose function is to advise or make suggestions to the court. … ‘The district court has broad discretion to appoint amici curiae.’”
The order and the amicus brief’s significance cannot be overstated. In what is believed to be the first time ever, a U.S. federal district court acknowledged that its status as an Article III Court is in question. If the court thought otherwise, no doubt it would have denied leave and dismissed the complaint, sua sponte, as a political question.
To get updates on these proceedings and other subjects regarding the Hawaiian Kingdom visit HawaiianKingdom.org/blog.