Wednesday, December 3, 2008

Catching up

Aloha mai kākou,

Last week, November 23-29, was not only a short week, but a very busy week, thus no blog posts.

But now, things are beginning to get back on track and its time to start providing more updates. We'll begin first with some newer updates, then try to back track. In summary, there are five main topics discussed in this post:
  • Young Native Hawaiian chosen as newest trustee to Lunalilo Trust
  • The Office of Hawaiian Affairs chooses its leadership
  • Kamehameha Schools is in the news again
  • Hawai‘i courts lack jurisdiction over Native Hawaiians?
  • Governor Lingle's News Conference

Young Native Hawaiian Chosen As Newest Trustee to Lunalilo Trust

Kamani Kualaau, a 29-year old Kamehameha Schools alum, has recently been named as a Trustee to the King William Charles Lunalilo Trust. This trustee appointment was approved by Judge Colleen Hirai.

Kamani Kualaau was known for his support of Kamehameha Schools' President, Dr. Michael Chun in 1997 during the time when Chun's authority at the school was being challenged by a trustee.

Stanley Hong, chairman of the Lunalilo Trust, described Kamani as, "very young but bright and mature, very experienced for such a short working career. The trust will benefit from his experience in the financial field."

Kamani Kualaau went against 41 other applicants for the position of trustee.

For more information on this story, read the Star-Bulletin article here.

Office of Hawaiian Affairs Trustees Elect Leadership

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The Office of Hawaiian Affairs' website reports that the OHA Board of Trustees has re-elected Trustee Haunani Apoliona as Board Chairperson.

Former Hawai'i Intermediate Court of Appeals Judge and current OHA Trustee was voted as Vice-Chairman.

Trustee Oswald Stender is the Chairman of the Committee on Asset and Resource Management. Robert Lindsey is the vice chairman.

Trustee Colette Machado is the Chairperson of the Committee on Beneficiary Advocacy and Empowerment. Retired Maui circuit judge and current OHA Trustee Boyd Mossman is vice chairman.

Kamehameha Schools in the News ... Again?

The Honolulu Star-Bulletin has a great article on Kamehameha Schools and it is not about any legal attacks on the Trust this time.

Instead, the focus of the article is service learning education and how service learning is benefiting the Native Hawaiian community. The article briefly describes some of the service projects done in different areas including: Haena, Hilo, Keaukaha, Molokai, Pohoiki Beach Park, Puna, and Waipio.

The Star-Bulletin quotes Kamehameha Schools senior Kaideen Kelly as saying, "I feel that I am doing something for a greater cause than just myself, and that's one of the best rewards of this high school."
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Lack of Jurisdiction Argument Made in Court?

Both the Honolulu Advertiser and the Honolulu Star-Bulletin report on the conviction and sentencing of Rita Makekau for abuse to her nieces and nephews. The description of the child abuse that Rita Makekau pleaded no contest to is heinous and no person should have to endure that type of treatment.

The articles from the two Honolulu daily newspapers bring up an interesting legal issue that can go easily un-noticed because of the descriptions of the horrible acts that Makekau has been sentenced for. In this blog-post we will explore that legal issue, BUT, we want to make sure that readers do not mis-interpret our exploration of this particular legal issue as supporting Rita Makekau's actions of child abuse.

Rita Makekau "plans to appeal her conviction on the grounds that as a Native Hawaiian, she is outside the jurisdiction of state courts" according to the Honolulu Advertiser article. The Star-Bulletin reports that, Judge Crandall "allowed Makekau to remain free pending the filing of her appeal in which she will argue that state laws do not apply to her." Basically, Makekau plans to argue that the State of Hawai'i judicial system lacks jurisdiction over her.

Since around 1992-94, there have been a few people who attempted to argue that state and federal courts lack jurisdiction over certain individuals, usually a Native Hawaiian or a descendant of a Hawaiian Kingdom citizen. One of the earliest cases where a Native Hawaiian mentioned that a court lacked jurisdiction because of ancestry to either a Native Hawaiian or a Hawaiian Kingdom citizen, was United States v. Dianne Hoapili, 981 F.2d 1260 (9th Cir. 1992). The Ninth Circuit Court of Appeals however, did not address the issue of jurisdiction in that case and instead ordered a new trial while also questioning the competency of the defendant Diane Hoapili.

Shortly after the Hoapili case came United States v. Windyceslau Lorenzo, 995 F.2d 1448 (9th Cir. 1993). This particular case involved two defendants, Nathan Brown and Windyceslau Lorenzo. The defendants argued, that because they were Hawaiian nationals, the federal district court had no jurisdiction over the case. The 9th Circuit Court of Appeals disagreed and basically said that both Brown and Lorenzo did not present any “evidence that the Sovereign Kingdom of Hawai‘i is currently recognized by the federal government or that they have received any immunity arising from the existence of the Kingdom.”

In 1994, the Hawai‘i Intermediate Court of Appeals heard, State of Hawai‘i v. Anthony Lorenzo, 883 P.2d 641 (Haw. Ct. App. 1994). In that case, Lorenzo argued,

[T]he Kingdom of Hawaii (Kingdom) . . . was recognized as an independent sovereign nation by the United States . . . [that] the Kingdom was illegally overthrown . . . with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him.

Judge Walter Heen (now retired and currently serving as a trustee to the Office of Hawaiian Affairs) wrote the court's opinion. Heen's opinion is the first judicial opinion, that thoroughly examined the legal issue and has been cited to by subsequent courts for the same legal argument of lack of jurisdiction that was used in other cases. Other such cases include:
  • State of Hawai‘i v. French, 883 P.2d 644 (Haw. Ct. App. 1994)
  • Nishitani v. Baker, 921 P.2d 1182 (Haw. Ct. App. 1996)
  • State of Hawai‘i v. Sherman, 95 Haw. 243 No. 22764 (Haw. Ct. App. 2000)
  • United States v. Goo
  • State of Hawai‘i v. Araujo
  • State of Hawai‘i v. Keliikoa
  • State of Hawai‘i v. Fergestrom, 101 P.3d 652, 664 (Haw. Ct. App 2004)
  • State of Hawai‘i v. Spinney
What may be important to realize, for purposes of context, is that in November of 1993, the 103rd Congress of the United States passed Public Law 103-150 apologizing for the role the United States played in the "overthrow" of the Hawaiian Kingdom. This apology resolution was not available to the Ninth Circuit Court of Appeals for the case involve Dianne Hoapili. More than likely, the Apology Resolution was not available to the court when Nathan Brown and Windyceslau Lorenzo challenged the federal court's jurisdiction.

Judge Walter Heen appears to have been on the first court that had an opportunity to examine the legal defense of "lack of jurisdiction" based on Hawaiian sovereignty or because some asserted that they were Native Hawaiian (or descendants of Hawaiian Kingdom citizens/subjects,) after the passage of the Apology Resolution. The Apology Resolution, among other things, recognized that "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 will undoubtedly be interesting to see how Rita Makekau handles her appeal in light of the line of cases that have dealt with the same legal defense of "lack of jurisdiction" based on a person being either a Native Hawaiian, a citizen of the Hawaiian Kingdom, or a descendant of a citizen to the Hawaiian Kingdom. No defendant (criminal or civil) has won their case using the same defense.

Governor Linda Lingle Expresses Intent to Proceed With U.S. Supreme Court Review

On November 24, 2008, Governor Lingle held a news conference where she discussed the ceded lands case now pending at the Supreme Court of The United States. You can watch the press conference by clicking here.

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