Testimony of Professor Williamson Chang in Opposition to Proposed Emergency Rule Prohibiting Certain Activities on the Mauna Kea Observatory Access Road located on the Island of “Hawaii”

Contributed and Reposted with express permission from contributor Professor Williamson B.C. Chang

Professor of Law
University of Hawaii
William S. Richardson School of Law
University of Hawaii at Manoa

[Professor Chang is speaking in an individual capacity. His statement does not represent the views of the School of Law or the University of Hawaii]

I. Introduction:

The proposed rule prohibiting certain activities in the “restricted area” on the slopes of Mauna is defective and unconstitutional on a number of grounds.

1) First and foremost, DLNR and the Board do not have territorial jurisdiction over Mauna Kea under Article XV Section 1 of the State Constitution and Section Two of the Act of Admission, An Act to Provide for the Admission of the State of Hawaii into the Union, (Act of March 18, 1959) Pub. L. 86-3, 73-4.

Mauna Kea on the Island of Hawaii is not within the definition of the territorial boundaries of both statutes. This board, like any Court is compelled to take mandatory judicial notice of these statutes under the Hawaii Rules of Evidence Section 202(b) as these are laws of the State of Hawaii and the United States.

2) Second, the rules do establish an “imminent peril” requirement as defined by DLNR’s own administrative rules. This emergency rule is valid only if it presents facts and demonstrates that it does meet an “imminent peril” which endangers “public safety”. Under Section 13-1-25 the board must state in writing its reason for the finding. The proposed rule lacks such written findings.

3) The prohibitions of the rule must be rationally related to addressing such concern of “imminent peril.” The rule prohibits persons from bringing into the “restricted area,” such items as “backpacks, tents, blankets, tarpaulins.” It also prevents persons from entering between 8:00 p.m. to 5:00 a.m. Such entry is excepted for persons transiting through in a motor vehicle.

It would appear that the Rule was proposed to prohibit the assembly of those protesting the construction of the TMT and to allow the TMT construction to continue since such construction is totally dependent on motor vehicle access to the summit.

Since there is no preamble describing the peril the rule is designed to meet the Board has not met its burden of showing that the prohibition together with the exception is rationally related to any imminent peril. The statements of the Attorney General and the Chairperson of the Board are not in the rule. Those statements make allegations that have not been proven.

The existence of rocks on the road cannot be the peril since motor vehicle transit is not prohibited. The rule cannot be intended to address issues of sanitation, criminal activity, destruction of the environment, or overcrowding. As DLNR has not proven that such potential harms are due to the activities of the protectors.

As to issues of sanitation, it was the State that removed portable toilet facilities brought by others to Mauna Kea. It was the State that turned off all water depriving persons of necessary hydration at such high altitudes. There is no violent criminal activity taking place, there is proven destruction of the environment, or proven introduction of foreign or invasive species.

4) The proposed rule is unnecessary. The rule undermines the Comprehensive Management Plan, which, after extensive discussion and community involvement addressed all the conceivable concerns to which the proposed rule may be directed.

DLNR agreed to the terms of the Comprehensive Management Plan. The rule does not identify any imminent peril that not already addressed in the CMP.

5) The rule proposed is unconstitutional in that it denies First Amendment rights of assembly, of religious freedom, particularly religious freedom guaranteed by the Constitution of the State of Hawaii as to cultural practitioners to whom Mauna Kea is sacred.

The rule is defective in that it is unconstitutional under the principle of “void for vagueness;” and it is “overbroad:” as read it prohibits may both be legal and that which the board considers illegal conduct.

6) The rules, as it affects religious practitioners would seem to violate several Federal Statutes, namely 42 U.S.C.A. § 2000cc “Protection of land use as religious Exercise” and “The Religious Freedom Restoration Act” § 2000bb. Congressional findings and declaration of purposes.

The number of issues here is too large to discuss in a single, limited, testimony. Thus, this written testimony will be limited to two issues: 1) the territorial jurisdiction of the Board to promulgate this rule and 2) the rule’s infringement on the first amendment constitutional right of assembly under the United States and Hawaii State constitutions.

II. The Board of Land and Natural Resources and DLNR do not have Rule-Making Authority over Mauna Kea as Mauna Kea is not within the Territorial Boundaries of the State of Hawaii as described by the State Constitution and the Admissions Act.

One can reasonably assume that a violation of this Rule, as in the case of other rules will be punished by criminal penalties. If so, certain constitutional principles of territorial jurisdiction apply to the promulgation of this rule. Those principles would be the same that would be applicable to a District or Circuit Court of the State of Hawaii in enforcing those rules. Such Courts would lack territorial subject matter jurisdiction.

Mauna Kea is not within the State of Hawaii; as the Island of “Hawaii” is not within the State of Hawaii. This Court lacks territorial subject matter jurisdiction as the alleged criminal act or its effects did not take place within the boundaries of the State of Hawaii. The Hawaii Supreme Court made this clear in State v. Kaulia. 128 Haw. at 486 (2013).

“the [S]tate’s criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawai‘i.” State v. Jim, 105 Hawai‘i 319, 330, 97 P.3d 395, 406 (App.2004)

Territorial jurisdiction is subject matter jurisdiction. Subject matter jurisdiction can be challenged at any point in a judicial proceeding, even after judgment. The lack of subject matter jurisdiction may be raised by counsel as well as the Court sua sponte. Territorial jurisdiction may never be waived and must be established beyond a reasonable doubt. McKinney’s CPL § 20.20. People v. Thomas, 997 N.Y.S.2d 53 (App. Div. 1st Dep’t 2014) The prosecution has the highest burden of all: it must prove the existence of subject matter jurisdiction beyond a reasonable doubt. HRS § 701–114(1) (d).

In State v Baldwin (1973, Me) 305 A2d 555, 67 ALR3d 979, the court held that proof beyond a reasonable doubt was necessary for the prosecution to demonstrate that a crime was committed within the territorial jurisdiction of the state of Maine, in order to establish its right to prosecute, and noted that of great importance in the selection of this rule was the fact that the issue of jurisdiction has direct effect on significant rights of defendants.

The question of the existence of subject matter jurisdiction is a question of fact, not law. One commentator has explained that “[a]t least when the matter has been put into issue by the defendant, whether the prosecuting government actually has criminal jurisdiction over the conduct of the defendant is a matter to be determined by the trier of fact.”

In light of the combined effect of these the State Constitution Article XV Section 1, Section Two of the 1959 Act of Admission, and the Organic Act, [Providing for a Government for the Territory of Hawaii] 31 Stat 141, the prosecution in enforcing this proposed rule has the burden of proving beyond a reasonable doubt that the Island of Hawaii, upon which Mauna Kea stands, was acquired by that unilateral act of the United States Congress, the Joint Resolution providing for annexing the Hawaiian Islands, 30 Stat 750 (signed into law on July 7, 1898.)

First, the claim that the Hawaiian Islands were acquired by A Joint Resolution, not a treaty, is innately illogical. If the United States could acquire Hawaii by Joint Resolution then Hawaii could acquire the United States by its own Joint Resolution.

Second, no court has ever examined the issue and thus no court has ever held that the United States acquired the Hawaiian Islands by the Joint Resolution of 1898. Moreover, the legislative history of the Joint Resolution, primarily the Senate and House debates in the summer of 1898, are completely bereft of any explanation or proof as to how a joint resolution could acquire the Hawaiian Islands. Instead, the Senate debates contain numerous statements on the record challenging the capacity of the Joint Resolution to acquire the Hawaiian Islands.

Third, the Joint Resolution, as a matter of legal fact did not actually acquire the Hawaiian Islands. The Supreme Court of the Republic of Hawaii in 1899, a year after the effective date of the Joint Resolution, held that the thirteenth amendment of the United States Constitution did not apply to the practice of involuntary servitude on Hawaii’s sugar plantation.

III. By the Terms of Section Two of the Organic Act of 1900 and the Act Admitting Hawaii as a State in 1959, the islands and waters within the State of Hawaii are only those Islands “acquired by” the Joint Resolution of 1898.

Section Two defined the territorial boundaries of the new State of Hawaii as:

Admission Act § 2

“The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters, but said State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (off-shore from Johnston Island), or Kingman Reef, together with their appurtenant reefs and territorial waters.” Pub.L. 86-3 (1959).

The only operative language that is relevant herein is that which states that the:

“The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act,. . . .”

Clearly, this means that one must turn to the definition of the Territory of Hawaii, as found in the Organic Act, to determine what is within the State of Hawaii. Section Two of the Organic Act (1900) defines what is in the Territory of Hawaii:

§2.Territory of Hawaii. That the islands acquired by the United States of America under an Act of Congress entitled “Joint resolution to provide for annexing the Hawaiian Islands to the United States,” approved July seventh, eighteen hundred and ninety-eight, shall be known as the Territory of Hawaii.

By Section Two of the Organic Act the only islands and waters within the Territory of Hawaii are:

“the islands acquired by the United States of America under an Act of Congress entitled “Joint resolution to provide for annexing the Hawaiian Islands to the United States approved July seventh, eighteen hundred and ninety-eight, shall be known as the Territory of Hawaii.”

The territorial description of the Territory of Hawaii is completely different from the descriptions of other former territories of the United States. The boundaries of the Territory of Colorado were defined in much clearer and objective language:

SEC. 62. All that part of the territory of the United States included within the following limits, viz: Commencing on the thirty-seventh parallel of north latitude, where the twenty-fifth meridian of longitude west from Washington crosses the same; thence north on that meridian to the forty-first parallel of north latitude; thence along that parallel west to the thirty-second meridian of longitude west from Washington; thence south on that meridian to the northern line of New Mexico; thence along the thirty-seventh parallel of north latitude to the place of beginning, is erected into a temporary government by the name of the Territory of Colorado.

The description of the Territory of Hawaii in 1900 does not rely on metes and bounds, lines of latitude and longitude, lines from one natural monument to another, or distances from other political boundaries.

Nonetheless, the territorial boundaries as stated in Section two of the Organic Act of Hawaii are plain and clear: only those islands acquired by the Joint Resolution constitute the territory of Hawaii.

The unusual language describing the boundaries of the Territory of Hawaii proved so troubling and indefinite that notes to Section Two of the Organic Act were added in 1915 naming the Hawaiian Islands. These notes, however, were not an act of Congress and were simply added for convenience, by the revisor of statutes. The notes are not the law. They do not define the boundaries of the Territory of Hawaii.

II. A Joint Resolution of Congress is not a Treaty but a mere Bill or Act: Under the Principle of Equal Sovereignty a Resolution, or Legislative Act One Nation cannot acquire the dominion or territory of another Foreign, Sovereign and Independent nation.

Under international law, there is the Principle of the Equality of Sovereignty (See Edwin Dickinson, The Equality of States in International Law, 335 (1920). That principle provides that all nations have equal sovereignty—that is they have equal power and are the final authority of law within that nation’s territorial boundaries. If each nation has such power, then no nation possesses the power to acquire territory of another nation by an act of its legislature of parliament.

In 1898, at the time of the enactment of the Joint Resolution, Hawaii and the United States were both independent, sovereign nations. The claim that an act of Congress could acquire the Hawaiian Islands violates this most basic principle of international law—the equality of the sovereignty of states.

All states under international law are absolutely sovereign within their territorial boundaries. That is, the laws of the Government of each state are final and absolute within their dominion. Thus, the laws of the United States are final and absolute only within the territory of the United States. Since Hawai’i is a State under international law, its laws, its sovereignty is also absolute and final within its territorial boundaries.

If the laws of each nation, that of United States and Hawai’i, are absolute within their respective territories, how can the United States, by a law of its own, acquire the territory of Hawaii? Such is an impossibility. This is more than to say it is “wrong,” or “unlawful,” or “unconstitutional.” It is, rather, “impossible”—which is to say that it cannot happen.

In other words, what we mean when we say a state is “sovereign” is precisely opposite to what the United States claims—a “sovereign” state is one which cannot be “acquired” by a law or joint resolution of another sovereign state.

II. The Legislative History of the Joint Resolution of 1898 clearly reveals that the Joint Resolution was incapable of acquiring the Hawaiian Islands

During the Senate debate on the Joint Resolution during the summer of 1898 there was extensive testimony that no joint resolution could reach out and acquire Hawaii. Moreover, there were only two senators who sought to explain how a joint resolution might acquire foreign territory. Both of their arguments were soundly rebuffed. Ultimately, Senator Foraker of Ohio, conceded that the United States could not acquire Hawaii by Joint Resolution.

Thus, if the Senate Debate constitutes the legislative history of the Joint Resolution it was clear then that the Joint Resolution had no power to acquire the Hawaiian Islands. Senator William V. Allen was one of the most outspoken. He pointed out that a Joint Resolution was just a bill, or an act of Congress. As between two sovereign and independent nations like Hawaii and the United States, the only basis by which territory can be acquired absent conquest [which is not relevant here] is by a treaty. A Joint Resolution is not a treaty. It is a unilateral act of one country. Thus, Senator Allen of Nebraska rose to object:

Mr. Allen: . . . . A Joint Resolution if passed becomes a statute law. It has no other or greater force. It is the same as if it would be if it were entitled “An act” instead of “A joint resolution.” That is its legal classification. It is therefore impossible for the Government of the United States to reach across its boundary into the dominion of another government and annex that government or persons or property therein. But the United States may do so under the treaty making power, which I shall hereafter consider.

See remarks of Senator Allen, 31 Cong Rec. at 6635, July 6, 1898, 55th Cong 2d Sess.

Senator White was even more adamant about the inability of the United States to reach out and acquire foreign territory with a Joint Resolution:

“Mr. President, how can a joint resolution such as this be operative? What is the legislative jurisdiction of Congress? Does it extend over Hawaii? May we in this anticipatory manner reach out beyond the sea and assert our authority under a resolution of Congress within the confines of that independent nation? Where is our right, our grant of power, to do this?

Where do we find it? Some assume to discover it in the supposition that there has been a cession, which has in truth never been made. Hawaii is foreign to us. We base our jurisdiction upon a falsehood desired to be made conclusive in a resolution the verity of which is said cannot be attacked, however groundless it may be.”

See remarks of Senator White, 31 Cong Rec. Appendix at 593 55th Cong 2d Sess.

Senator Stephen White pointed out that Acts of Congress cannot acquire the dominion of a foreign sovereign nation:

“Whence do acts of Congress go? Upon whom do they operate? Upon the people of the United States. They have no efficacy beyond the United States except in so far as the influence the conduct of her people in certain excepted cases and those exceptions are more apparent than real.

They are impotent to affect the title or the status of the people of who live upon alien soil. Where, then do we obtain the authority to annex unless by some treaty provision?”

See remarks of Senator White 31 Cong Rec. Appendix at 593 55th Cong 2d Sess.

Senator White also reaffirmed the limitations of Congressional Acts:

Mr. White. We cannot as I said before extend our legislative right to act without until there has been some authority by which that which is without is brought within.

Cited in Appendix to the Congressional Record, Volume 31, 55th Cong, 2d Sess. Remarks of Senator White at p. 593

Senator Thomas Turley of Tennessee agreed:

Mr. President I wish to illustrate this by just the condition of affairs which is before the Senate now. It is admitted that if the Joint Resolution is adopted the Republic of Hawaii can determine whether or not it will accept the provisions contained in the joint resolution.

In other words, the adoption of the resolution does not consummate the transaction. The Republic of Hawaii does not become a part or the territory of the united States by the adoption of the joint resolution, but after its adoption and signature by the President and after it becomes the law of the land the Republic of Hawaii may refuse to accept the terms contained in it and remain an independent and sovereign state.

Statement of Senator Turley June 25, 1898, 31 Congressional Record at 6339.

Senator Augustus O. Bacon of Georgia pointed out the ridiculous nature of the claim that a joint resolution could acquire the Hawaiian Islands:

Mr. Bacon. If the President of the United States can do it in the case of Hawaii, he can with equal propriety and legality do it in the case of Jamaica.

Statement of Senator Bacon 31 Cong. Rec. at 6152 (June 20 1898)

Against this chorus of Senators decrying the powers of the Joint Resolution, only two Senators stood to defend the power of the Joint Resolution to acquire the Hawaiian Islands. Senator Joseph Foraker declared that the Joint Resolution was really like a treaty—but a treaty that only needed the signature of the United States—because the other party, Hawaii, died at the signing of the treaty. He later gave up all attempts to defend the power of the Joint Resolution and admitted to Senator Allen that a Joint Resolution could not acquire the Hawaiian Islands.

Mr. Allen: When we pass this resolution and it becomes a law, the transaction is consummated except of the delivery of the property.

Mr. Foraker: It would have to be accepted on the other side. We can not by a joint resolution annex Hawaii.

Statements of Senators Allen and Foraker, June 25, 1898, 31 Congressional Record 6336

Senator Stewart of Nevada, the other Senator defending the power of the Joint Resolution claimed that Congress could pass any law or joint resolution and the President would have to enforce it. He speculated that Congress could pass a joint resolution taking 300 miles of Mexican territory. His point was two-fold. First, Congress can pass anything it wants. Second, under the “faithful execution” clause the President is duty bound to enforce that resolution as law.

When Stewart was queried by another Senator that the President’s enforcement of a three hundred mile incursion into Mexico would be an act of War, Stewart shrugged it off, signifying that the acquisition of territory by war and by annexation through a Joint Resolution were all the same. After a famous colloquy with a fellow Senator who asked if the United States could annex Bermuda Stewart replied: We can annex anything.”

There is nothing in the Senate Debates, the crucial heart of the legislative history of the Joint Resolution which gives any indication that the Joint Resolution actually had the power to acquire any territory. Those who voted for the Resolution did so because the United States was at War with Spain and President McKinley badly wanted a coaling station in Hawaii to assist in ferrying United States troops to the Philippines.

The argument that Texas was annexed by Joint Resolution and admitted thereafter as a State did occupy much of the Senate’s time during the debate. In fact, however, Texas was not acquired by a Joint Resolution. As William S. Russ, Jr., points out in his book, The Hawaiian Republic (1894-1898): And its Struggle to Win Annexation 327 (1961):

The truth is that Texas was not fully annexed or fully admitted as a state (whatever the action might have been called) by joint resolution, which was signed by President Tyler on March 1, 1845. The resolution merely signified the willingness of the United States to admit Texas as a State if it fulfilled certain conditions, such as acceptance of annexation. Obviously, if Texas refused, there would be neither annexation nor admission as a State.

Russ, Jr., goes on to state that Texas was admitted directly as a State by a treaty, the only means possible, an unwritten treaty manifested by a perfect meeting of the minds as between Texas and the United States. Texas became part of the Union when its congressional delegation was seated in the Congress and with Texas’ assent that it would come in on an equal footing as all previous states.

Over the years, scholars have also questioned the power of a joint resolution to acquire territory. The constitutional scholar Westel Willoughby thus wrote in his 1929 treatise the following:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. . . . Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force — confined in its operation to the territory of the State by whose legislature it is enacted.

1 W. Willoughby, The Constitutional Law of the United States sec. 239, [*34] at 427 (2d ed. 1929).

There has never been a coherent, or any explanation, as to how a mere act or resolution of Congress could reach out and acquire the dominion of another independent and sovereign nation.

III. As a Matter of Legal Fact the Joint Resolution did not acquire the Hawaiian Islands as Territory of the United States.

The Joint Resolution of 1898 was signed into law on July 7, 1898. As a matter of legal fact, the Joint Resolution did not acquire the Hawaiian Islands. If “acquired” the Hawaiian Islands would not have continued to exercise various sovereign powers. The Republic continued to act as before—asserting powers it would only have if it remained a sovereign and independent nation.

See generally William Adam Russ, Jr., The Hawaiian Republic (1894-98) And Its Struggle to Win Annexation (1961)

The Republic continued to negotiate with other nations, such as the United Kingdom. The Republic of Hawaii refused to be bound by certain United States immigration laws such as the Chinese Exclusion Act. The Republic of Hawaii still retained a Minister of Foreign Affairs.

Most significantly, President Dole continued to convey to friends the public lands of Hawaii after the effective date of the Joint Resolution. By the terms of the Joint Resolution all public property of the Republic of Hawaii was thereafter property of the United States. Nevertheless, Dole ignored the Joint Resolution and continued to convey away public lands.

The United States ordered him to stop on the grounds that the Joint Resolution gave title to such lands to the United States. Dole refused. After adverse decisions of the United States Attorney General, Dole still refused to stop such conveyances. See Public Lands of Hawaii 22 AG Ops 627 (1899)

The President of the United States issued an executive order declaring all such conveyances null and void. See Executive Order of September 11, 1899. President Dole ignored the executive order and dispatched a special ambassador to Washington who argued before the President that the Joint Resolution was not binding on Hawaii.

In the minds of the leaders of the Republic of Hawaii, the Joint Resolution had no effect and clearly did not acquire the Hawaiian Islands as territory of the United States.

The legislative history of the Joint Resolution, primarily the Senate and House debates in the summer of 1898, are completely bereft of any explanation or proof as to how a joint resolution could acquire the Hawaiian Islands. Instead, the Senate debates contain numerous statements on the record challenging the capacity of the Joint Resolution to acquire the Hawaiian Islands.

The Joint Resolution, as a matter of legal fact did not actually acquire the Hawaiian Islands. The Supreme Court of the Republic of Hawaii in 1899, a year after the effective date of the Joint Resolution, held that the thirteenth amendment of the United States Constitution did not apply to the practice of involuntary servitude on Hawaii’s sugar plantation.

The thirteenth amendment to the United States Constitution provides that

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

By denying that the thirteenth amendment applied in Hawaii, the Supreme Court of the Republic of Hawaii held that Hawaii was either (1) not within the United States nor (2) subject to its jurisdiction.

Thus, in the eyes of the Supreme Court of the Republic of Hawaii the Joint Resolution certainly did not “acquire” the Hawaiian Islands as territory of the United States. If the Joint Resolution had acquired Hawaii as United States territory the thirteenth amendment would have been applicable under one of the two clauses of that amendment. Honomu Sugar Company v. Sayewicz, 12 Haw. 96 (1899).

By its own laws, the United States has limited the boundaries of the State of Hawaii to only those islands acquired” by the Joint Resolution of 1898. Therefore only islands and waters acquired specifically by the Joint Resolution of 1898 count as within the boundaries of the Territory, and thus the State of Hawaii.

Even if actually acquired by some other means, the Organic Act of 1900, section two and the Admission Act only deem islands acquired by the Joint Resolution to be within the territorial boundaries of the State of Hawaii.

IV. The Territorial Descriptions found in Section Two of the Act of Admission and Article XV Section One of the Hawaii State Constitution Were Overwhelming Approved by the People of Hawaii: Approval of the Territorial Description was a Condition of Statehood

The language of Section Two of the Act of Admission was carefully planned and drafted. Indeed the eventual adoption of that language was so important that Congress made it a condition of statehood.

Congress wrote into the Act of Admission a provision which stated that if the people did not approve of the territorial boundaries written by Congress in the period from 1953 to 1959, Hawaii would be denied statehood. In other words, the language of Section Two was a condition of statehood. Section 7(b) of the Act of Admission states as follows:

“At an election designated by proclamation of the Governor of Hawaii, which may be either the primary or the general election held pursuant to subsection (a) of this section, or a territorial general election, or a special election there shall be submitted to the electors qualified to vote in said election, for adoption or rejection, the following propositions:

(1) Shall Hawaii immediately be admitted into the Union as a State?

(2) The boundaries of the State of Hawaii shall be as prescribed in the Act of Congress [date of approval of this act] and all claims of this State to any area of land or sea outside the boundaries so prescribed are hereby irrevocably relinquished to the United States.

(3) All provisions of the Act of Congress approved [date of this act] reserving rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property therein made to the State of Hawaii are consented to fully by said State and its people”

See Section 7(b) The Act of Admission, An Act to Provide for the Admission of the State of Hawaii into the Union, (Act of March18, 1959, Pub. L. 86-3, 73 Stat 4)

In newspaper articles surrounding this so-called “plebiscite,” the people of Hawaii were told to vote “Yes, Yes, Yes.” They were also told that question two was not important. It would not change the existing boundaries of Hawaii. However, by the terms of Section 7(b) they must vote in favor of question two or Hawaii would not be admitted as a State. Clearly, the manner by which Congress defined the territory of Hawaii, as without islands or waters, was intentional.

V. The State of Hawaii and DLNR have no Title to The “Restricted Area” or to Mauna Kea itself

The United States claim to title and ownership of Mauna Kea is also based on the Joint Resolution. The United States claim to the Crown and Government lands rests upon the assertion that the Joint Resolution had the power and effect to convey all such lands from the Republic of Hawaii to the United States.

Since the Joint Resolution of 1898 had no effect whatsoever on the Hawaiian Islands as establishing United States sovereignty the Joint Resolution was equally ineffective in conveying public lands of the Republic of Hawaii to the United States. If the Joint Resolution lacked the capacity to transfer sovereignty, it also lacked the capacity to transfer title to Crown and Government lands.

The lands of Mauna Kea were Government lands under the governments of the Kingdom of Hawaii and the Republic of Hawaii. The Joint Resolution had no capacity to convey those lands to the United States. The Joint Resolution was not a treaty. The Joint Resolution was merely an act or bill of the United States. It could have no effect over lands in a foreign dominion.

Thus, the validity of the States’ title to Mauna Kea, which it received from the United States at Statehood, as well as the validity of the State lease to the University of Hawaii, as well as the powers of the University of Hawaii over the summit of Mauna Kea rests on the fallacious claim that the Joint Resolution had the power to convey lands from a foreign sovereign nation to the United States.

In conclusion, the Board of Land and Natural Resources lacks territorial subject matter jurisdiction. It has no jurisdiction over the slopes of Mauna Kea.

VI. The Proposed Rule violates the “Right of Assembly” under the First Amendment of the United States Constitution

The first amendment occupies a special place in the Constitution.

The First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683), provides that ‘Congress shall make no law * * * abridging * * * the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ These rights, along with religion, speech, and press, are preferred rights of the Constitution, made so by reason of that explicit guarantee and *49 what Edmond Cahn in Confronting Injustice (1966) referred to as ‘The Firstness of the First Amendment.’

It would appear that the “imminent peril” that the Board seeks to eliminate by this rule is the assembly and to protest the construction of the TMT. There may be a place and time where camping, assembly and protest may be regulated but under the decisions of the United States Supreme Court this would not appear to be one of those situations. The Supreme Court has stated when speaking of a trespass law:

But this is quite different from saying that all public places are off limits to people with grievances. See Hague v. C.I.O., supra; Cox v. State of New Hampshire, supra; Jamison v. State of Texas, 318 U.S. 413, 415—416, 63 S.Ct. 669, 671, 87 L.Ed. 869; Edwards v. South Carolina, supra.

And it is farther yet from saying that the ‘custodian’ of the public property in his discretion can decide when public places shall be used for the communication of ideas, especially the constitutional right to assemble and petition for redress of grievances.

For to place such discretion in any public official, be he the ‘custodian’ of the public property or the local police commissioner (cf. Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280), is to place those who assert their First Amendment rights at his mercy.

It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place to air their claims and petition their government.

Such power is out of step with all our decisions prior to *55 today where we have insisted that before a First Amendment right may be curtailed under the guise of a criminal law, any evil that may be collateral to the exercise of the right, must be isolated and defined in a ‘narrowly drawn’ statute (Cantwell v. State of Connecticut, supra, at 307, 60 S.Ct. at 904) lest the power to control excesses of conduct be used to suppress the constitutional right itself.

See Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Herndon v. Lowry, 301 U.S. 242, 258—259, 57 S.Ct. 732, 739, 81 L.Ed. 1066; Edwards v. South Carolina, supra, 372 U.S. at 238, 83 S.Ct. at 684; N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338.

That tragic consequence happens today when a trespass law is used to bludgeon those who peacefully exercise a First Amendment right to protest to government against one of the most grievous of all modern oppressions which some of our States are inflicting on our citizens.

Today a trespass law is used to penalize people for exercising a constitutional right. Tomorrow a disorderly conduct statute, a breach-of-the-peace statute, a vagrancy statute will be put to the same end.

Testimony on proposed DLNR Rules as to Prohibited Activities on Mauna Kea [This is long] Permission to repost granted

Testimony of Professor Williamson Chang in Opposition to Proposed Emergency Rule Prohibiting Certain Activities on the Mauna Kea Observatory Access Road located on the Island of “Hawaii”

Professor Williamson B.C. Chang

Professor of Law

University of Hawaii

William S. Richardson School of Law

University of Hawaii at Manoa

[Professor Chang is speaking in an individual capacity.

His statement does not represent the views of the

School of Law or the University of Hawaii]

I. Introduction:

The proposed rule prohibiting certain activities in the “restricted area” on the slopes of Mauna is defective and unconstitutional on a number of grounds.

1) First and foremost, DLNR and the Board do not have territorial jurisdiction over Mauna Kea under Article XV Section 1 of the State Constitution and Section Two of the Act of Admission, An Act to Provide for the Admission of the State of Hawaii into the Union, (Act of March 18, 1959) Pub. L. 86-3, 73-4.

Mauna Kea on the Island of Hawaii is not within the definition of the territorial boundaries of both statutes. This board, like any Court is compelled to take mandatory judicial notice of these statutes under the Hawaii Rules of Evidence Section 202(b) as these are laws of the State of Hawaii and the United States.

2) Second, the rules do establish an “imminent peril” requirement as defined by DLNR’s own administrative rules. This emergency rule is valid only if it presents facts and demonstrates that it does meet an “imminent peril” which endangers “public safety”. Under Section 13-1-25 the board must state in writing its reason for the finding. The proposed rule lacks such written findings.

3) The prohibitions of the rule must be rationally related to addressing such concern of “imminent peril.” The rule prohibits persons from bringing into the “restricted area,” such items as “backpacks, tents, blankets, tarpaulins.” It also prevents persons from entering between 8:00 p.m. to 5:00 a.m. Such entry is excepted for persons transiting through in a motor vehicle.

It would appear that the Rule was proposed to prohibit the assembly of those protesting the construction of the TMT and to allow the TMT construction to continue since such construction is totally dependent on motor vehicle access to the summit.

Since there is no preamble describing the peril the rule is designed to meet the Board has not met its burden of showing that the prohibition together with the exception is rationally related to any imminent peril. The statements of the Attorney General and the Chairperson of the Board are not in the rule. Those statements make allegations that have not been proven.

The existence of rocks on the road cannot be the peril since motor vehicle transit is not prohibited. The rule cannot be intended to address issues of sanitation, criminal activity, destruction of the environment, or overcrowding. As DLNR has not proven that such potential harms are due to the activities of the protectors.

As to issues of sanitation, it was the State that removed portable toilet facilities brought by others to Mauna Kea. It was the State that turned off all water depriving persons of necessary hydration at such high altitudes. There is no violent criminal activity taking place, there is proven destruction of the environment, or proven introduction of foreign or invasive species.

4) The proposed rule is unnecessary. The rule undermines the Comprehensive Management Plan, which, after extensive discussion and community involvement addressed all the conceivable concerns to which the proposed rule may be directed.

DLNR agreed to the terms of the Comprehensive Management Plan. The rule does not identify any imminent peril that not already addressed in the CMP.

5) The rule proposed is unconstitutional in that it denies First Amendment rights of assembly, of religious freedom, particularly religious freedom guaranteed by the Constitution of the State of Hawaii as to cultural practitioners to whom Mauna Kea is sacred.

The rule is defective in that it is unconstitutional under the principle of “void for vagueness;” and it is “overbroad:” as read it prohibits may both be legal and that which the board considers illegal conduct.

6) The rules, as it affects religious practitioners would seem to violate several Federal Statutes, namely 42 U.S.C.A. § 2000cc “Protection of land use as religious Exercise” and “The Religious Freedom Restoration Act” § 2000bb. Congressional findings and declaration of purposes.

The number of issues here is too large to discuss in a single, limited, testimony. Thus, this written testimony will be limited to two issues: 1) the territorial jurisdiction of the Board to promulgate this rule and 2) the rule’s infringement on the first amendment constitutional right of assembly under the United States and Hawaii State constitutions.

II. The Board of Land and Natural Resources and DLNR do not have Rule-Making Authority over Mauna Kea as Mauna Kea is not within the Territorial Boundaries of the State of Hawaii as described by the State Constitution and the Admissions Act.

One can reasonably assume that a violation of this Rule, as in the case of other rules will be punished by criminal penalties. If so, certain constitutional principles of territorial jurisdiction apply to the promulgation of this rule. Those principles would be the same that would be applicable to a District or Circuit Court of the State of Hawaii in enforcing those rules. Such Courts would lack territorial subject matter jurisdiction.

Mauna Kea is not within the State of Hawaii; as the Island of “Hawaii” is not within the State of Hawaii. This Court lacks territorial subject matter jurisdiction as the alleged criminal act or its effects did not take place within the boundaries of the State of Hawaii. The Hawaii Supreme Court made this clear in State v. Kaulia. 128 Haw. at 486 (2013).

“the [S]tate’s criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawai‘i.” State v. Jim, 105 Hawai‘i 319, 330, 97 P.3d 395, 406 (App.2004)

Territorial jurisdiction is subject matter jurisdiction. Subject matter jurisdiction can be challenged at any point in a judicial proceeding, even after judgment. The lack of subject matter jurisdiction may be raised by counsel as well as the Court sua sponte. Territorial jurisdiction may never be waived and must be established beyond a reasonable doubt. McKinney’s CPL § 20.20. People v. Thomas, 997 N.Y.S.2d 53 (App. Div. 1st Dep’t 2014) The prosecution has the highest burden of all: it must prove the existence of subject matter jurisdiction beyond a reasonable doubt. HRS § 701–114(1) (d).

In State v Baldwin (1973, Me) 305 A2d 555, 67 ALR3d 979, the court held that proof beyond a reasonable doubt was necessary for the prosecution to demonstrate that a crime was committed within the territorial jurisdiction of the state of Maine, in order to establish its right to prosecute, and noted that of great importance in the selection of this rule was the fact that the issue of jurisdiction has direct effect on significant rights of defendants.

The question of the existence of subject matter jurisdiction is a question of fact, not law. One commentator has explained that “[a]t least when the matter has been put into issue by the defendant, whether the prosecuting government actually has criminal jurisdiction over the conduct of the defendant is a matter to be determined by the trier of fact.”

In light of the combined effect of these the State Constitution Article XV Section 1, Section Two of the 1959 Act of Admission, and the Organic Act, [Providing for a Government for the Territory of Hawaii] 31 Stat 141, the prosecution in enforcing this proposed rule has the burden of proving beyond a reasonable doubt that the Island of Hawaii, upon which Mauna Kea stands, was acquired by that unilateral act of the United States Congress, the Joint Resolution providing for annexing the Hawaiian Islands, 30 Stat 750 (signed into law on July 7, 1898.)

First, the claim that the Hawaiian Islands were acquired by A Joint Resolution, not a treaty, is innately illogical. If the United States could acquire Hawaii by Joint Resolution then Hawaii could acquire the United States by its own Joint Resolution.

Second, no court has ever examined the issue and thus no court has ever held that the United States acquired the Hawaiian Islands by the Joint Resolution of 1898. Moreover, the legislative history of the Joint Resolution, primarily the Senate and House debates in the summer of 1898, are completely bereft of any explanation or proof as to how a joint resolution could acquire the Hawaiian Islands. Instead, the Senate debates contain numerous statements on the record challenging the capacity of the Joint Resolution to acquire the Hawaiian Islands.

Third, the Joint Resolution, as a matter of legal fact did not actually acquire the Hawaiian Islands. The Supreme Court of the Republic of Hawaii in 1899, a year after the effective date of the Joint Resolution, held that the thirteenth amendment of the United States Constitution did not apply to the practice of involuntary servitude on Hawaii’s sugar plantation.

III. By the Terms of Section Two of the Organic Act of 1900 and the Act Admitting Hawaii as a State in 1959, the islands and waters within the State of Hawaii are only those Islands “acquired by” the Joint Resolution of 1898.

Section Two defined the territorial boundaries of the new State of Hawaii as:

Admission Act § 2

“The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters, but said State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (off-shore from Johnston Island), or Kingman Reef, together with their appurtenant reefs and territorial waters.” Pub.L. 86-3 (1959).

The only operative language that is relevant herein is that which states that the:

“The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act,. . . .”

Clearly, this means that one must turn to the definition of the Territory of Hawaii, as found in the Organic Act, to determine what is within the State of Hawaii. Section Two of the Organic Act (1900) defines what is in the Territory of Hawaii:

§2.Territory of Hawaii. That the islands acquired by the United States of America under an Act of Congress entitled “Joint resolution to provide for annexing the Hawaiian Islands to the United States,” approved July seventh, eighteen hundred and ninety-eight, shall be known as the Territory of Hawaii.

By Section Two of the Organic Act the only islands and waters within the Territory of Hawaii are:

“the islands acquired by the United States of America under an Act of Congress entitled “Joint resolution to provide for annexing the Hawaiian Islands to the United States approved July seventh, eighteen hundred and ninety-eight, shall be known as the Territory of Hawaii.”

The territorial description of the Territory of Hawaii is completely different from the descriptions of other former territories of the United States. The boundaries of the Territory of Colorado were defined in much clearer and objective language:

SEC. 62. All that part of the territory of the United States included within the following limits, viz: Commencing on the thirty-seventh parallel of north latitude, where the twenty-fifth meridian of longitude west from Washington crosses the same; thence north on that meridian to the forty-first parallel of north latitude; thence along that parallel west to the thirty-second meridian of longitude west from Washington; thence south on that meridian to the northern line of New Mexico; thence along the thirty-seventh parallel of north latitude to the place of beginning, is erected into a temporary government by the name of the Territory of Colorado.

The description of the Territory of Hawaii in 1900 does not rely on metes and bounds, lines of latitude and longitude, lines from one natural monument to another, or distances from other political boundaries.

Nonetheless, the territorial boundaries as stated in Section two of the Organic Act of Hawaii are plain and clear: only those islands acquired by the Joint Resolution constitute the territory of Hawaii.

The unusual language describing the boundaries of the Territory of Hawaii proved so troubling and indefinite that notes to Section Two of the Organic Act were added in 1915 naming the Hawaiian Islands. These notes, however, were not an act of Congress and were simply added for convenience, by the revisor of statutes. The notes are not the law. They do not define the boundaries of the Territory of Hawaii.

II. A Joint Resolution of Congress is not a Treaty but a mere Bill or Act: Under the Principle of Equal Sovereignty a Resolution, or Legislative Act One Nation cannot acquire the dominion or territory of another Foreign, Sovereign and Independent nation.

Under international law, there is the Principle of the Equality of Sovereignty (See Edwin Dickinson, The Equality of States in International Law, 335 (1920). That principle provides that all nations have equal sovereignty—that is they have equal power and are the final authority of law within that nation’s territorial boundaries. If each nation has such power, then no nation possesses the power to acquire territory of another nation by an act of its legislature of parliament.

In 1898, at the time of the enactment of the Joint Resolution, Hawaii and the United States were both independent, sovereign nations. The claim that an act of Congress could acquire the Hawaiian Islands violates this most basic principle of international law—the equality of the sovereignty of states.

All states under international law are absolutely sovereign within their territorial boundaries. That is, the laws of the Government of each state are final and absolute within their dominion. Thus, the laws of the United States are final and absolute only within the territory of the United States. Since Hawai’i is a State under international law, its laws, its sovereignty is also absolute and final within its territorial boundaries.

If the laws of each nation, that of United States and Hawai’i, are absolute within their respective territories, how can the United States, by a law of its own, acquire the territory of Hawaii? Such is an impossibility. This is more than to say it is “wrong,” or “unlawful,” or “unconstitutional.” It is, rather, “impossible”—which is to say that it cannot happen.

In other words, what we mean when we say a state is “sovereign” is precisely opposite to what the United States claims—a “sovereign” state is one which cannot be “acquired” by a law or joint resolution of another sovereign state.

II. The Legislative History of the Joint Resolution of 1898 clearly reveals that the Joint Resolution was incapable of acquiring the Hawaiian Islands

During the Senate debate on the Joint Resolution during the summer of 1898 there was extensive testimony that no joint resolution could reach out and acquire Hawaii. Moreover, there were only two senators who sought to explain how a joint resolution might acquire foreign territory. Both of their arguments were soundly rebuffed. Ultimately, Senator Foraker of Ohio, conceded that the United States could not acquire Hawaii by Joint Resolution.

Thus, if the Senate Debate constitutes the legislative history of the Joint Resolution it was clear then that the Joint Resolution had no power to acquire the Hawaiian Islands. Senator William V. Allen was one of the most outspoken. He pointed out that a Joint Resolution was just a bill, or an act of Congress. As between two sovereign and independent nations like Hawaii and the United States, the only basis by which territory can be acquired absent conquest [which is not relevant here] is by a treaty. A Joint Resolution is not a treaty. It is a unilateral act of one country. Thus, Senator Allen of Nebraska rose to object:

Mr. Allen: . . . . A Joint Resolution if passed becomes a statute law. It has no other or greater force. It is the same as if it would be if it were entitled “An act” instead of “A joint resolution.” That is its legal classification. It is therefore impossible for the Government of the United States to reach across its boundary into the dominion of another government and annex that government or persons or property therein. But the United States may do so under the treaty making power, which I shall hereafter consider.

See remarks of Senator Allen, 31 Cong Rec. at 6635, July 6, 1898, 55th Cong 2d Sess.

Senator White was even more adamant about the inability of the United States to reach out and acquire foreign territory with a Joint Resolution:

“Mr. President, how can a joint resolution such as this be operative? What is the legislative jurisdiction of Congress? Does it extend over Hawaii? May we in this anticipatory manner reach out beyond the sea and assert our authority under a resolution of Congress within the confines of that independent nation? Where is our right, our grant of power, to do this?

Where do we find it? Some assume to discover it in the supposition that there has been a cession, which has in truth never been made. Hawaii is foreign to us. We base our jurisdiction upon a falsehood desired to be made conclusive in a resolution the verity of which is said cannot be attacked, however groundless it may be.”

See remarks of Senator White, 31 Cong Rec. Appendix at 593 55th Cong 2d Sess.

Senator Stephen White pointed out that Acts of Congress cannot acquire the dominion of a foreign sovereign nation:

“Whence do acts of Congress go? Upon whom do they operate? Upon the people of the United States. They have no efficacy beyond the United States except in so far as the influence the conduct of her people in certain excepted cases and those exceptions are more apparent than real.

They are impotent to affect the title or the status of the people of who live upon alien soil. Where, then do we obtain the authority to annex unless by some treaty provision?”

See remarks of Senator White 31 Cong Rec. Appendix at 593 55th Cong 2d Sess.

Senator White also reaffirmed the limitations of Congressional Acts:

Mr. White. We cannot as I said before extend our legislative right to act without until there has been some authority by which that which is without is brought within.

Cited in Appendix to the Congressional Record, Volume 31, 55th Cong, 2d Sess. Remarks of Senator White at p. 593

Senator Thomas Turley of Tennessee agreed:

Mr. President I wish to illustrate this by just the condition of affairs which is before the Senate now. It is admitted that if the Joint Resolution is adopted the Republic of Hawaii can determine whether or not it will accept the provisions contained in the joint resolution.

In other words, the adoption of the resolution does not consummate the transaction. The Republic of Hawaii does not become a part or the territory of the united States by the adoption of the joint resolution, but after its adoption and signature by the President and after it becomes the law of the land the Republic of Hawaii may refuse to accept the terms contained in it and remain an independent and sovereign state.

Statement of Senator Turley June 25, 1898, 31 Congressional Record at 6339.

Senator Augustus O. Bacon of Georgia pointed out the ridiculous nature of the claim that a joint resolution could acquire the Hawaiian Islands:

Mr. Bacon. If the President of the United States can do it in the case of Hawaii, he can with equal propriety and legality do it in the case of Jamaica.

Statement of Senator Bacon 31 Cong. Rec. at 6152 (June 20 1898)

Against this chorus of Senators decrying the powers of the Joint Resolution, only two Senators stood to defend the power of the Joint Resolution to acquire the Hawaiian Islands. Senator Joseph Foraker declared that the Joint Resolution was really like a treaty—but a treaty that only needed the signature of the United States—because the other party, Hawaii, died at the signing of the treaty. He later gave up all attempts to defend the power of the Joint Resolution and admitted to Senator Allen that a Joint Resolution could not acquire the Hawaiian Islands.

Mr. Allen: When we pass this resolution and it becomes a law, the transaction is consummated except of the delivery of the property.

Mr. Foraker: It would have to be accepted on the other side. We can not by a joint resolution annex Hawaii.

Statements of Senators Allen and Foraker, June 25, 1898, 31 Congressional Record 6336

Senator Stewart of Nevada, the other Senator defending the power of the Joint Resolution claimed that Congress could pass any law or joint resolution and the President would have to enforce it. He speculated that Congress could pass a joint resolution taking 300 miles of Mexican territory. His point was two-fold. First, Congress can pass anything it wants. Second, under the “faithful execution” clause the President is duty bound to enforce that resolution as law.

When Stewart was queried by another Senator that the President’s enforcement of a three hundred mile incursion into Mexico would be an act of War, Stewart shrugged it off, signifying that the acquisition of territory by war and by annexation through a Joint Resolution were all the same. After a famous colloquy with a fellow Senator who asked if the United States could annex Bermuda Stewart replied: We can annex anything.”

There is nothing in the Senate Debates, the crucial heart of the legislative history of the Joint Resolution which gives any indication that the Joint Resolution actually had the power to acquire any territory. Those who voted for the Resolution did so because the United States was at War with Spain and President McKinley badly wanted a coaling station in Hawaii to assist in ferrying United States troops to the Philippines.

The argument that Texas was annexed by Joint Resolution and admitted thereafter as a State did occupy much of the Senate’s time during the debate. In fact, however, Texas was not acquired by a Joint Resolution. As William S. Russ, Jr., points out in his book, The Hawaiian Republic (1894-1898): And its Struggle to Win Annexation 327 (1961):

The truth is that Texas was not fully annexed or fully admitted as a state (whatever the action might have been called) by joint resolution, which was signed by President Tyler on March 1, 1845. The resolution merely signified the willingness of the United States to admit Texas as a State if it fulfilled certain conditions, such as acceptance of annexation. Obviously, if Texas refused, there would be neither annexation nor admission as a State.

Russ, Jr., goes on to state that Texas was admitted directly as a State by a treaty, the only means possible, an unwritten treaty manifested by a perfect meeting of the minds as between Texas and the United States. Texas became part of the Union when its congressional delegation was seated in the Congress and with Texas’ assent that it would come in on an equal footing as all previous states.

Over the years, scholars have also questioned the power of a joint resolution to acquire territory. The constitutional scholar Westel Willoughby thus wrote in his 1929 treatise the following:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. . . . Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force — confined in its operation to the territory of the State by whose legislature it is enacted.

1 W. Willoughby, The Constitutional Law of the United States sec. 239, [*34] at 427 (2d ed. 1929).

There has never been a coherent, or any explanation, as to how a mere act or resolution of Congress could reach out and acquire the dominion of another independent and sovereign nation.

III. As a Matter of Legal Fact the Joint Resolution did not acquire the Hawaiian Islands as Territory of the United States.

The Joint Resolution of 1898 was signed into law on July 7, 1898. As a matter of legal fact, the Joint Resolution did not acquire the Hawaiian Islands. If “acquired” the Hawaiian Islands would not have continued to exercise various sovereign powers. The Republic continued to act as before—asserting powers it would only have if it remained a sovereign and independent nation.

See generally William Adam Russ, Jr., The Hawaiian Republic (1894-98) And Its Struggle to Win Annexation (1961)

The Republic continued to negotiate with other nations, such as the United Kingdom. The Republic of Hawaii refused to be bound by certain United States immigration laws such as the Chinese Exclusion Act. The Republic of Hawaii still retained a Minister of Foreign Affairs.

Most significantly, President Dole continued to convey to friends the public lands of Hawaii after the effective date of the Joint Resolution. By the terms of the Joint Resolution all public property of the Republic of Hawaii was thereafter property of the United States. Nevertheless, Dole ignored the Joint Resolution and continued to convey away public lands.

The United States ordered him to stop on the grounds that the Joint Resolution gave title to such lands to the United States. Dole refused. After adverse decisions of the United States Attorney General, Dole still refused to stop such conveyances. See Public Lands of Hawaii 22 AG Ops 627 (1899)

The President of the United States issued an executive order declaring all such conveyances null and void. See Executive Order of September 11, 1899. President Dole ignored the executive order and dispatched a special ambassador to Washington who argued before the President that the Joint Resolution was not binding on Hawaii.

In the minds of the leaders of the Republic of Hawaii, the Joint Resolution had no effect and clearly did not acquire the Hawaiian Islands as territory of the United States.

The legislative history of the Joint Resolution, primarily the Senate and House debates in the summer of 1898, are completely bereft of any explanation or proof as to how a joint resolution could acquire the Hawaiian Islands. Instead, the Senate debates contain numerous statements on the record challenging the capacity of the Joint Resolution to acquire the Hawaiian Islands.

The Joint Resolution, as a matter of legal fact did not actually acquire the Hawaiian Islands. The Supreme Court of the Republic of Hawaii in 1899, a year after the effective date of the Joint Resolution, held that the thirteenth amendment of the United States Constitution did not apply to the practice of involuntary servitude on Hawaii’s sugar plantation.

The thirteenth amendment to the United States Constitution provides that

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

By denying that the thirteenth amendment applied in Hawaii, the Supreme Court of the Republic of Hawaii held that Hawaii was either (1) not within the United States nor (2) subject to its jurisdiction.

Thus, in the eyes of the Supreme Court of the Republic of Hawaii the Joint Resolution certainly did not “acquire” the Hawaiian Islands as territory of the United States. If the Joint Resolution had acquired Hawaii as United States territory the thirteenth amendment would have been applicable under one of the two clauses of that amendment. Honomu Sugar Company v. Sayewicz, 12 Haw. 96 (1899).

By its own laws, the United States has limited the boundaries of the State of Hawaii to only those islands acquired” by the Joint Resolution of 1898. Therefore only islands and waters acquired specifically by the Joint Resolution of 1898 count as within the boundaries of the Territory, and thus the State of Hawaii.

Even if actually acquired by some other means, the Organic Act of 1900, section two and the Admission Act only deem islands acquired by the Joint Resolution to be within the territorial boundaries of the State of Hawaii.

IV. The Territorial Descriptions found in Section Two of the Act of Admission and Article XV Section One of the Hawaii State Constitution Were Overwhelming Approved by the People of Hawaii: Approval of the Territorial Description was a Condition of Statehood

The language of Section Two of the Act of Admission was carefully planned and drafted. Indeed the eventual adoption of that language was so important that Congress made it a condition of statehood.

Congress wrote into the Act of Admission a provision which stated that if the people did not approve of the territorial boundaries written by Congress in the period from 1953 to 1959, Hawaii would be denied statehood. In other words, the language of Section Two was a condition of statehood. Section 7(b) of the Act of Admission states as follows:

“At an election designated by proclamation of the Governor of Hawaii, which may be either the primary or the general election held pursuant to subsection (a) of this section, or a territorial general election, or a special election there shall be submitted to the electors qualified to vote in said election, for adoption or rejection, the following propositions:

(1) Shall Hawaii immediately be admitted into the Union as a State?

(2) The boundaries of the State of Hawaii shall be as prescribed in the Act of Congress [date of approval of this act] and all claims of this State to any area of land or sea outside the boundaries so prescribed are hereby irrevocably relinquished to the United States.

(3) All provisions of the Act of Congress approved [date of this act] reserving rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property therein made to the State of Hawaii are consented to fully by said State and its people”

See Section 7(b) The Act of Admission, An Act to Provide for the Admission of the State of Hawaii into the Union, (Act of March18, 1959, Pub. L. 86-3, 73 Stat 4)

In newspaper articles surrounding this so-called “plebiscite,” the people of Hawaii were told to vote “Yes, Yes, Yes.” They were also told that question two was not important. It would not change the existing boundaries of Hawaii. However, by the terms of Section 7(b) they must vote in favor of question two or Hawaii would not be admitted as a State. Clearly, the manner by which Congress defined the territory of Hawaii, as without islands or waters, was intentional.

V. The State of Hawaii and DLNR have no Title to The “Restricted Area” or to Mauna Kea itself

The United States claim to title and ownership of Mauna Kea is also based on the Joint Resolution. The United States claim to the Crown and Government lands rests upon the assertion that the Joint Resolution had the power and effect to convey all such lands from the Republic of Hawaii to the United States.

Since the Joint Resolution of 1898 had no effect whatsoever on the Hawaiian Islands as establishing United States sovereignty the Joint Resolution was equally ineffective in conveying public lands of the Republic of Hawaii to the United States. If the Joint Resolution lacked the capacity to transfer sovereignty, it also lacked the capacity to transfer title to Crown and Government lands.

The lands of Mauna Kea were Government lands under the governments of the Kingdom of Hawaii and the Republic of Hawaii. The Joint Resolution had no capacity to convey those lands to the United States. The Joint Resolution was not a treaty. The Joint Resolution was merely an act or bill of the United States. It could have no effect over lands in a foreign dominion.

Thus, the validity of the States’ title to Mauna Kea, which it received from the United States at Statehood, as well as the validity of the State lease to the University of Hawaii, as well as the powers of the University of Hawaii over the summit of Mauna Kea rests on the fallacious claim that the Joint Resolution had the power to convey lands from a foreign sovereign nation to the United States.

In conclusion, the Board of Land and Natural Resources lacks territorial subject matter jurisdiction. It has no jurisdiction over the slopes of Mauna Kea.

VI. The Proposed Rule violates the “Right of Assembly” under the First Amendment of the United States Constitution

The first amendment occupies a special place in the Constitution.

The First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683), provides that ‘Congress shall make no law * * * abridging * * * the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ These rights, along with religion, speech, and press, are preferred rights of the Constitution, made so by reason of that explicit guarantee and *49 what Edmond Cahn in Confronting Injustice (1966) referred to as ‘The Firstness of the First Amendment.’

It would appear that the “imminent peril” that the Board seeks to eliminate by this rule is the assembly and to protest the construction of the TMT. There may be a place and time where camping, assembly and protest may be regulated but under the decisions of the United States Supreme Court this would not appear to be one of those situations. The Supreme Court has stated when speaking of a trespass law:

But this is quite different from saying that all public places are off limits to people with grievances. See Hague v. C.I.O., supra; Cox v. State of New Hampshire, supra; Jamison v. State of Texas, 318 U.S. 413, 415—416, 63 S.Ct. 669, 671, 87 L.Ed. 869; Edwards v. South Carolina, supra.

And it is farther yet from saying that the ‘custodian’ of the public property in his discretion can decide when public places shall be used for the communication of ideas, especially the constitutional right to assemble and petition for redress of grievances.

For to place such discretion in any public official, be he the ‘custodian’ of the public property or the local police commissioner (cf. Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280), is to place those who assert their First Amendment rights at his mercy.

It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place to air their claims and petition their government.

Such power is out of step with all our decisions prior to *55 today where we have insisted that before a First Amendment right may be curtailed under the guise of a criminal law, any evil that may be collateral to the exercise of the right, must be isolated and defined in a ‘narrowly drawn’ statute (Cantwell v. State of Connecticut, supra, at 307, 60 S.Ct. at 904) lest the power to control excesses of conduct be used to suppress the constitutional right itself.

See Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Herndon v. Lowry, 301 U.S. 242, 258—259, 57 S.Ct. 732, 739, 81 L.Ed. 1066; Edwards v. South Carolina, supra, 372 U.S. at 238, 83 S.Ct. at 684; N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338.

That tragic consequence happens today when a trespass law is used to bludgeon those who peacefully exercise a First Amendment right to protest to government against one of the most grievous of all modern oppressions which some of our States are inflicting on our citizens.

Today a trespass law is used to penalize people for exercising a constitutional right. Tomorrow a disorderly conduct statute, a breach-of-the-peace statute, a vagrancy statute will be put to the same end.

It is said that the sheriff did not make the arrests because of the views which petitioners espoused. That excuse is usually given, as we know from the many cases involving arrests of minority groups for breaches of the peace, unlawful assemblies, and parading without a permit.
The proposed rule, vague as it is, clearly violates the right to assembly. It prohibits the people of Hawaii from remaining on Mauna Kea precisely when the rule would allow the passage of vehicles for the construction of the TMT.

The whole purpose of the lawful assembly is to the protest the construction of the TMT.

The proposed rule is not reasonable in that it deliberately squelches a first amendment right to permit the successful carrying out of the activity by which the people have a right to protest.

Yet by allowing these orderly and civilized protests against injustice to be suppressed, we only increase the forces of frustration which the conditions of second-class citizenship are generating amongst us.

Such was the case of Edwards v. South Carolina, where aggrieved people ‘peaceably assembled at the site of the State Government’ to express their grievances to the citizens of the State as well as to the legislature. 372 U.S., at 235, 83 S.Ct., at 683. Edwards was in the tradition of Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, where the public streets were said to be ‘immemorially associated’ with ‘the right of assembly and the opportunities for the communication of thought and the discussion of public questions.’ Id., at 574, 61 S.Ct., at 765.

The Supreme Court made clear that protestors had a right to sit at lunch counters that were segregated under State law:

The United States Supreme Court, Mr. Chief Justice Warren, held that evidence was insufficient to support finding that defendants, by sitting at ‘white lunch counters’ in business establishments, disturbed the peace in violation of Louisiana breach of peace statute either by outwardly boisterous conduct or by passive conduct likely to cause a public disturbance, and the convictions violated defendants’ rights to due process of law under the Fourteenth Amendment.

Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1214, and consistently since recognized, I think the convictions are subject to other constitutional infirmities.

. . . the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.’ (Citing to such cases as Schenck v. United States, 249 U.S. 47.) 310 U.S., at 311, 60 S.Ct., at 906

Finally, Justice Harlan in a Concurring Opinion in Garner v. State of Louisiana 82 S.Ct. 248, stated:

But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment, it cannot do so by means of a general and all-inclusive breach of the peace prohibition. It must bring the activity sought to be proscribed within the ambit of a statute or clause ‘narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.’ Cantwell v. Connecticut, supra, 310 U.S., at 311, 60 S.Ct., at 906; *203 Thornhill v. State of Alabama, 310 U.S. 88, 105,9 60 S.Ct. 736, 745. And of course that interest must be a legitimate one. A State may not ‘suppress free communication of views, religious or other, under the guise of conserving desirable conditions.’ Cantwell, supra, at 308, 60 S.Ct. at 905

VII. Conclusion

The Board of Land and Natural Resources lacks territorial jurisdiction to promulgate this proposed rule. Thus, such rule is null and void. That fact alone would appear provide protectors a sufficient basis to peacefully challenge such a rule, particularly when it does not state an imminent peril. It is not explicitly guided by a means, narrowly drawn, to protect the public interest. Here, it clearly appears that the proposed rule is not balanced, but designed to permit the conduct that the people assembled lawfully seek to protest.

The proposed rule states no purpose at all. It cannot meet the constitutional requirement that it be narrowly drawn. There is no evidence that there is no other reasonable means of addressing the harm for no existing harm is stated in the rule. As a Justice of Supreme Court of the United States had stated:

And of course that interest must be a legitimate one. A State may not ‘suppress free communication of views, religious or other, under the guise of conserving desirable conditions.’ Cantwell, supra, at 308, 60 S.Ct. at 905

In conclusion, the “protectors” of Mauna Kea are acting under a sincere belief that their actions are consistent with Federal and State law. Even if their actions are eventually held not to be consistent with State law-they are legitimately protesting the failure to enforce violates guaranteed in the Constitution of the State of Hawaii. They certainly have a right to protest the fact that DLNR cannot meet the burden of proof showing that it has

Moreover, the proposed rule violates the principles of the First Amendment guaranteeing freedom of religion.

Finally, the rule fails by its own requirements: if does not state in writing the feared “imminent peril” to “public health, safety, or morals.”

The rule seems clearly designed to implement the construction of the TMT– a purpose the Governor has publicly avowed will take place.


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I’m Professor Williamson Chang was born and raised in Honolulu, Hawai`i. He graduated from Princeton University with degrees in Asian Studies and from the Woodrow Wilson School of Public and International Affairs. Thereafter, he attended the University of California, Berkeley [Boalt Hall] where he was an editor of both the California Law Review and the Ecology Law Quarterly. He clerked for U.S. District Court Judge Dick Yin Wong in Honolulu and began teaching at the University of Hawai`i the following year.

Professor Chang has done extensive work in the development of water rights and the state water code. He served as a Deputy Attorney General and represented Chief Justice William S. Richardson in a number of critical property rights cases, such as McBryde Sugar Co. v. Robinson [water], Sotomura v. County of Hawai`i [beaches] and Zimring v. State of Hawai`i [volcanic accretion]. Prof. Chang was extremely active in the development of the state water code and drafted the state water code as a reporter for the Advisory Commission on Water Resources. He also helped to found the Native Hawaiian Advisory Commission where he also served as Litigation Director. While at NHAC, he helped Hawaiians and other register their water rights. He has represented numerous individuals and groups in litigation in state and federal courts, including the Pai Ohana, Public Access Shoreline Hawaii, Catholic Action Peace and Freedom Party and the Kalamaula Hawaiian Homestead Association. He is currently working on an account of the actual history of the United States acquisition of Hawai`i titled: “A Rope of Sand: The United States Annexation of Hawai`i.”

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