{"id":1395,"date":"2022-08-23T14:05:51","date_gmt":"2022-08-23T18:05:51","guid":{"rendered":"https:\/\/www.nlg.org\/guild-notes\/?post_type=article&p=1395"},"modified":"2022-08-23T14:05:52","modified_gmt":"2022-08-23T18:05:52","slug":"federal-court-in-hawaii-acknowledges-its-authority-is-in-question-after-granting-leave-for-amicus-brief-filed-by-guild-members","status":"publish","type":"article","link":"https:\/\/www.nlg.org\/guild-notes\/article\/federal-court-in-hawaii-acknowledges-its-authority-is-in-question-after-granting-leave-for-amicus-brief-filed-by-guild-members\/","title":{"rendered":"Federal Court in Hawai\u2018i Acknowledges Its Authority Is In Question After Granting Leave for Amicus Brief Filed by Guild Members"},"content":{"rendered":"\n

In December of 2019, the Guild membership passed a resolution<\/a> submitted by the Hawaiian Kingdom Subcommittee<\/a> calling \u201cupon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.\u201d On January 13, 2020, the Guild then called \u201cupon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893<\/a>.\u201d The following year, the International Association of Democratic Lawyers also called \u201cupon the United States to immediately comply with international humanitarian law in its prolonged occupation of the Hawaiian Islands\u2014the Hawaiian Kingdom<\/a>.\u201d<\/p>\n\n\n\n

On August 11, 2021, the Hawaiian Kingdom<\/a> filed an amended complaint<\/a> for declaratory and injunctive relief with the United States District Court for the District of Hawai\u2018i<\/a> 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<\/a>.  The Hawaiian Kingdom addressed the court\u2019s presence within Hawaiian Kingdom territory in its jurisdictional statement. <\/p>\n\n\n\n

Since 1959, the federal court in Hawai\u2018i has been operating as an Article III court by virtue of section 9(a) of the 1959 Hawai\u2018i Statehood Act<\/a>, but its presence is unlawful as American municipal laws, including congressional legislation, have no effect beyond United States territory. In United States v.<\/em> Curtiss-Wright Export Corp<\/em><\/a>.<\/em>, the U.S. Supreme Court stated, neither \u201cthe Constitution nor the laws passed in pursuance of it have any force in foreign territory.\u201d Justice Story, in Picquet v. Swan<\/em><\/a>, noted that \u201cno 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.\u201d The Hawaiian Kingdom stated in its amended complaint that the court\u2019s \u201cjurisdiction is found as a de facto<\/em> Article II Court,\u201d which are federal courts operating in foreign territory under the occupation of the United States such as Germany from 1945-1955. <\/p>\n\n\n\n

On August 17, 2021, the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protector Legal Collective, as Amici<\/em>, filed a motion for leave to file an amended amicus curiae<\/em> brief<\/a>. The authors are Guild members Natali Segovia and Joseph Chase, with Marti Schmidt as copy editor. The Amici\u2019s<\/em> request for leave noted the brief was submitted \u201cto ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici<\/em> are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.\u201d <\/p>\n\n\n\n

In a September 30, 2021, order<\/a>, Federal Magistrate Judge Rom Trader granted leave. The Amici<\/em> filed their amicus<\/em> brief<\/a> on October 6. In it, they stated that the \u201cpurpose of this brief is to bring to the Court\u2019s 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.\u201d The brief also went on to state that the \u201cquestion 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.\u201d<\/p>\n\n\n\n

Magistrate Judge Trader\u2019s order noted that the \u201cCourt, having carefully reviewed the Motion and attached brief, records and files in this case, and the applicable law, GRANTS the Motion.\u201d The Order further stated when \u201cdetermining whether to grant leave to file an amicus brief, courts consider whether the briefing \u2018supplement[s] the efforts of counsel, and draw[s] the court\u2019s attention to law that escaped consideration. \u2026 The amicus may be either impartial or interested individuals, whose function is to advise or make suggestions to the court. \u2026 \u2018The district court has broad discretion to appoint amici curiae.\u2019\u201d<\/p>\n\n\n\n

The order and the amicus<\/em> brief\u2019s 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<\/em>, as a political question.
To get updates on these proceedings and other subjects regarding the Hawaiian Kingdom visit HawaiianKingdom.org\/blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In December of 2019, the Guild membership passed a resolution submitted by the Hawaiian Kingdom Subcommittee calling \u201cupon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.\u201d On January 13, 2020, the Guild then called \u201cupon the United States to immediately begin […]<\/p>\n","protected":false},"author":32,"featured_media":0,"menu_order":4,"comment_status":"closed","ping_status":"closed","template":"","format":"standard","meta":{"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","footnotes":"","_members_access_role":[],"_members_access_error":""},"issuem_issue":[221],"issuem_issue_categories":[],"issuem_issue_tags":[],"class_list":["post-1395","article","type-article","status-publish","format-standard","hentry","issuem_issue-guild-notes-vol-47-no-1-spring-2022","post"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t