DAVI D KEANU SAI ,

Plaintiff,

v. HI L LARY DIANE RODHA M CL I NTON, Secre tary of State of the United States et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 10–899 (CKK)

MEMORAN DUM OP INION (Mar ch 9, 2010) Pro se plaintiff David Ke anu Sai (“ Plaintiff”) filed this ac tion ag ainst various g overnme nt officia ls seekingdecla

ratory and injunctive re lief as we ll as damag es stemming f rom their alleg ed violation of the L iliuokalani Assignment, a statement issued by

Quee n L iliuokalani of the King dom of Haw aii relinquishing c ontrol of the Ha waiian I slands to the United States on J anuar y 17, 1893. Plaintiff contends, inter alia , that the L iliuokalani Assignment r equire s the United States to return c ontrol of the islands to the King dom of Haw aii, that the anne x ation of the Hawa iian islands by

the United States in 1898 is unconstituti onal, and that Plaintiff’s c onviction for thef t in March 2000 by

a Ha waii cour t should be expunged be cause it is i n violation of fede ral a nd international law . In his First Amende d Complaint, P laintiff names a s defe ndants Secre tary of State Hillary

Diane Rodham Cli nton, Secre tary of De fense Robert Michae l Gates, Admiral Robert F . Wil lard, a nd L inda L ingle , Gover

nor of the State of

Hawa ii. On September 23, 2010, Plaintiff voluntarily dismiss ed all cla ims ag ainst Governor L ingle . The re maining

1defe ndants (collec tively , “De fenda nts”) have filed a [10] Mot ion to Dismi ss, which Plaintiff opposes. Also pendingbefor e the Court ar e Plaintiff’s [21] Motion for L eave to File Supplemental Complaint and moti ons to intervene f iled by Alfre d Napa

huelua Spinney

and J ames Kimo Ke ka. F or the re asons explained below, the Court shall g rant De fenda nts’ motion to dismiss and deny

Plaintiff’s motion for leave to supplement his complaint and the motions to intervene

. I. BACKG ROUND A. Hawaii’s History as a Territ ory of the United States The Ha waiian islands we re united a s one king dom in 1810 under the lea dership of K ing Kameme ha I

. See R ice v . Cayetano , 528 U.S. 495, 501 (2000). Ne ar the end of the nineteenth centur y , Americ an business intere sts were dominating the islands a nd cre atingtensions with pronative, anti-Wester

n interests. See id. at 504. In 1887, Westerner s forc ed the r esig nation of the Hawa iian Prime Minist er a nd the adoption of a

new c onstitut ion. Id. In 1893, “a group of profe ssionals and businessmen, with the ac tive assistance of John S tevens, the United States Minister to Hawa ii, actingwith United States Armed F orce s, replac ed the monar chy with a provisional g overnme nt” that soug ht annexation by the United States. Id. at 505. The ove rthrow of the Ha waiian g overnme nt was ef fec ted on J anuar

y 17, 1893, when Que en L iliuokalani issued the followingstatement: I , L i l i uokalani, by the g rac e of God and under the constitution of the Hawa i i an King dom, Quee n, do here by solemnly protest aga inst any and all acts done ag ainst my sel f an d t he constitutional Gover nment of the Hawa iian King dom by cer tain persons claiming to have established a P ro v i s ional Gover nment of and for this King dom. That I yield to the superior forc e of the United States of Americ a, whose minist er 2plenipotentiary , His Ex cellenc y J ohn L

. Stevens, has cause d United States troops to

be landed at Honolulu and decla red that he would support t h e P ro v i sional Gover nment. Now, to avoid any collision of arme d forc es, and perha ps the loss of life, I do, under this protest, and impelled b y s ai d fo rc e, yield my authority until such time as the Gover nment of the United States shal l , up o n fac ts being prese nted to it, undo the action of its repr esenta

tives and reinstate me in the authority which I cl ai m as the constitutional sovereig n of the Ha waiian I slands. See J oint Resoluti on to Acknowledg e the 100th Anniver sary of the January

17, 1893 Over

throw of the King dom of Haw aii, Pub. L . No. 103-150, 107 Stat. 1510, 1511 (1993) ( here inafter , “Apolog y Resolution”); Compl., Ex . B at 18. Plainti ff r efe rs to this assignment of pow er a s the “L iliuokalani Assignment.” SeeAm. Compl. ¶¶ 1, 16-17. In 1993, Congr ess passed a resolution formally apolog izi ngto Native Ha waiians for

the involvement of the United States in overthrow ing the Hawa iian King dom. See Apolog y Resolution; 20 U.S .C. § 7512(5); Hawaii v. Off. of Hawaii an Affairs , 129 S. Ct . 1436, 1440-41 (2009)

. On Fe bruar

y 1, 1893, the United States minister raise d the Amer ican f lagand proc laimed Hawa ii to be a protec torate of the United States. See Apolog y Resolution, 107 S tat. at 1511. A fede ral investig ation conclude d that the United States diplomatic and military repr esentatives had abused the ir authority

and we re r esponsible for the chang e in g overnme nt. Id. On Dec ember 18, 1893, President Grove r Cleveland de livered a messag e to the Cong ress re lating to the H awa iian islands. See House Ex. Doc. 47, 53d Cong ., 2d Sess. (Ser. No. 3224) , pp. 3-16 (1893) (her einaf ter, “ Cleveland Messa g e”) . President Cleveland a cknowledg ed Que en L iliuokalani’s

surre nder of

sovere ignty , stating tha

t “[s] he surr ender ed not absolutely and per manently , but temporar ily

and conditionally

until such tim e as the fac ts could be consider ed by the United States.” Cleveland Me ssag e at 15. Pre sident Cleveland denounc ed the r ole of Ame rica n forc es 3and ca lled for the r estoration of the Hawa iian monarc hy with conditions including a g ener al amnesty for those involved in e stablishing the Provisional Gover nment. See id. ; Rice v

. Cayetano , 528 U.S. at 505. Plaintiff refe rs to this as the “agree ment of re storation.” SeeAm. Compl. ¶ 27. The Provisional Government pr otested President Clevela nd’s ca ll for re storation of the monarc hy

and per suaded the Senate Committee on For eig n Relations to conduct a ne w investigation that just ified and c ondoned the a ctions of the United States. SeeApolog y Resolution, 107 S tat. at 1511-12. On July 24, 1894, the Provisional Governme nt declar ed itself to be the Republic of H awa ii, and the Provisional Governme nt force d Quee n L iliuokalani to abdicate her

throne on January

24, 1895. Id. at 1512. On J uly 7, 1898, President Will iam McKinley signe d a Joi nt Resolution t o annex the Hawa iian I slands as terr itory of the United States, sometimes re fer red to a s the New lands Resolution. See J oint Resoluti on to Provide for Anne x ing the Hawa iian I slands to the United States, No. 55, 30 Stat. 750 (1898); Rice v . Cayetano , 528 U.S. at 505. Throug h the New lands Resolution, the Republic of Hawa ii ceded sove reignty over the Hawa iian I slands to the United States. See Apolog y

Resolution, 107 S tat. at 1512. In 1900, Congr ess established a g overnme nt for the te rritory

of Ha waii, and in 1959, Ha

waii bec ame the 50th State of the United States. Id. B. Plaintif

f’s Factual Allegations and Legal Cl aims Plaintiff David Kea

nu Sai professe s to be a subjec t of the King dom of Haw aii. See Am. Compl. ¶ 6. On or about De cembe r 10, 1995, Plaintiff and his par tner, Dona ld A. L ewis, for med a par tnership named the Perfe ct Title Company

. Id. ¶ 34. On De cembe r 15, 1995, they formed a second pa rtnership c alled the Ha

waiian King dom Trust Company

. Id. ¶ 37. One of the purpose s of the Ha waiian King dom Trust Company was to provisionally

serve as an a ctingg overnme nt of

4the Haw aiian King dom. Id. ¶¶ 38- 39. Plaintiff was appointed to ser ve as a ctingReg ent for the Hawa iian King dom. Id. ¶ 41. On or a bout Febr uary 3, 1996, the Haw aiian King dom Trust Company passed a resolution announcing

the quietingof all land titles in the Hawa iian I slands. Id. ¶ 47. On or a

bout September 5, 1997, the H onolulu police arr ested Plaintiff, L ewis, and the

secr etar y for the H awa iian King dom Trust Company on char g es of thef

t, rac ketee ring , and tax evasion re lating to their

proper ty dealing s. Am. Compl. ¶ 52. P laintiff and L ewis we re ultimately

indicted for a

ttempted theft in the first degree . Id. Plaintiff was convic ted on Marc h 7, 2000. Id. ¶¶ 60, 61. Plaintiff filed his initi al complaint in this action on J une 1, 2010 and a mended his complaint on J uly

9, 2010. In his First Amende d Complaint, P laintiff asser ts three c auses of action. In Count One, Plaintiff asserts that pursua nt to the L iliuokalani Assignment a nd various international tre aties, De fenda nts have a leg al obliga

tion to adminis ter Ha

waiian King dom law until the Hawaiian K ingdom g overnme nt is restored pur suant to the “a g ree ment of re storation” made by President Cleveland in 1893. See Am. Compl. ¶ 64. Pl aintiff conte nds that the J oint Resolution annexi ngthe Haw aiian I slands violates the L iliuokalani Assignment a nd the

sovere ignty

of the Ha waiian King dom. See id. ¶¶ 65- 71. Plaintiff claims that he has suff ere d injuries and dama g es as a result of the United States’s occ upation of the Ha waiian I slands and seeks a decla ration that the Ne wlands Resolution is unconstitutional and void. Id. ¶ 72. In Count Two of the F irst Amended Complaint, Plainti ff c laims that his indi ctment, prosec ution, and conviction violated his civil rig hts under Ha waiian King dom law and violated the L iliuokalani Assignme nt and var ious international treaties. See id. ¶¶ 74- 78. Plaintiff theref ore a sks the Court to set aside and e x pung e Plaintiff’s fe lony conviction by

the State of Ha

waii. Id. ¶ 78. In
5Count Three of the Fir st Amended Complaint, Plainti ff c laims that his arrest, prose cution, and conviction for the ft violated international law and a sks the Court to find that his prosecution and conviction constituted a wa r cr ime. Id. ¶¶ 80- 85. In addition, Plainti ff a sks the Court to enjoin Def endants fr om violating the L iliuokalani Assignment a nd enter a judg ment in favor of

Plaintiff for c ompensatory

and punitive damag es. See Am. Compl., P rayer f or Relief ¶

¶ 3-5. Plaintiff

asser ts that jurisdiction ex ists under the Alien Tor t Statute, 28 U.S.C . § 1350, which provide s that “[t] he district cour

ts shall have orig inal jurisdiction of any civil action by

an alien f or a tort only , committed in violation of the law of nations or a treaty of the United States.” See Am. Compl. ¶ 2; 28 U.S.C . § 1350. II. LEGAL STANDARD Def endants move to dismiss Pl aintiff’s F irst Amended Complaint for lac k of subject matter jurisdiction. A cour t must di smiss a case pur suant to Rule 12(b)(1) when it lacks subjec t matter jurisdiction. In deter mining whe ther ther e is jurisdiction, the Court may “conside r the complaint supplemented by undisputed fac ts evidence d in the rec ord, or the c omplaint supplemented by

undisputed fac ts plus the court’s re solution of disput ed fa cts.” Coalit ion for Underground Ex

pansion , 333 F.3d at 198 (citations omitted); see also Jerom e Stev ens Pharm., Inc. v . Food &Drug Admin. , 402 F.3d 1249, 1253 ( D.C. Cir. 2005) (“[T]he district court may consider materials outside the plea dings in de cidingwhether to gr ant a motion to dismi ss for lac k of jurisdiction.”). “ At the motion to dis miss st ag e, counse led complaints, as we ll as pro se complaints, are to be construe d with sufficient libera lity to affor d all possible infere nces favor able to the plea der on a lleg ations of fa ct.” Settles v. U.S. ParoleComm’n , 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the fa vorable infere nces that a plaintiff re ceive s on a motion to
6dismiss , it remains the plaintiff’ s burden to prove subject matter jur isdiction by a pre pondera

nce of the e vidence

. Am. Farm Bure au v. Env tl. Prot. Agency , 121 F. Supp. 2d 84, 90 (D.D .C. 2000). “Althoug h a cour

t must acce pt as true a ll factua l alleg ations contained in the c omplaint when revie winga motion to dism iss pursuant to Rule 12(b)(1) , [a] plaintiff[’s] fac tual alleg ations in the complaint . . . will bear c loser scr utiny in resolvinga 12(b) (1) motion than in resolvinga 12(b) (6) motion for failure to state a c laim.” W right v. Foreign Serv. Grievanc e Bd. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007) ( internal c itations and quotation marks omitted). III. DISCUSS ION Although Plaintiff pur

ports to assert thre e sepa

rate cause s of ac tion in his First Amende d Complaint, each of Plaintiff’ s claims is based on his asser tion that the exercise of sove reignty by the United States over

the Haw aiian I slands violates fede ral a nd international law . As explained below, the Court finds that it lacks jurisdiction over suc h claims bec ause the y prese nt a nonjusticiable political question. A. The Status of Hawai i As Part of the United States Is a Political Question over W hich the Court Lacks Jurisdiction “The principle that the c ourts lack jurisdiction over political questions that are by their nature ‘committed to the political branc hes to the exclusion of the judiciary ’ is as old as the fundame ntal principle of judicia l review .” Schneide r v. Kissinger , 412 F.3d 190, 193 ( D.C. Cir. 2005) (quoting Antolok v. United States , 873 F.2d 369, 379 ( D.C. Cir. 1989) (opinion of Sentelle, J .)). In deter

mining whe ther a

case prese nts a nonjusticiable political question, the courts look for six factors: (1) a

text ually demonstrable c onstitut ional commitment of the issue to a coordinate political depar tment; (2) a lac k of judicially discovera

ble and mana g eable standards

7for r esolvingit; (3) the impossibil ity of dec iding without an initial policy deter mination of a kind clea rly for nonjudicial discr etion; (4) the impossibilit y of a c ourt’s under

takingindepende nt resolution without ex pressinga lac k of re spect due coordina te bra nches of g overnme nt; (5) an unusual nee d for unque stioning adhe renc e to a political dec ision already made; or ( 6) the potentiality

of emba rra ssment of multifarious pronounce ments by various depa

rtments on one question. Bake r v. Carr , 369 U.S. 186, 217 (1962). I f any one of the se fa ctors is prese nt, the Court may

find that the question is politi cal. Schneide r , 412 F.3d at 194. The fe dera l courts have long r ecognized that the determination of sove reignty over a territory is fundamentally

a political question beyond the jurisdiction of the cour ts. As the Supreme Court re cog nized in 1890: Who is the sovere ign, de jure or de facto , of a territo ry , is not a judicial, but a political, question, the deter mination of which by the leg islative and ex ec utive depar tments of any g overnme nt conclusively binds the judge s, as we ll as all other office rs, citi zens, and subj ects of that g overnme nt. This principle has alway s been upheld by this court, and has be en af firmed unde r a great variety of circ umstances. Jones v . United States , 137 U.S. 202, 212 (1890). This principle w as re cently rea ffirme d by

the D.C. Circuit, which ruled that c laims requiringthe deter mination of sovere ignty

over Ta iwan under f eder al and inter

national law pr esente d a political question requir ing dismissal for la ck of subject matter jur isdiction. See Lin v. United States , 561 F.3d 502, 505- 08 (D.C. Cir.), cert. denied, 130 S. Ct . 202 (2009). Analy sis of the Bake r v. Carr fac tors confirms that Plaintiff’s c laims present this Court with a nonjusticiable political question. Plaintiff’s lawsuit challeng es the United States’ s

rec og nition of the Republic of Ha waii as a sovere ign e ntity

and the United States’ s exercise of authority over H awa ii following a

nnexation. However , “[t] he conduc t of the for eig n relations of

8our Gove rnment is committed by the Constitut ion to the Ex ecutive a nd L eg islative–‘the political’–Depa

rtments of the Gove rnment, and the propriety of wha t may be done in the e x erc ise of this politi cal powe r is not subject to judicial inquiry or dec ision.” Oetjen v . Cent. Leather Co. , 246 U.S. 297, 302 (1918). In addition, the Constit ution vests Congre ss with the “Power to dispose of an make all nee dful Rules and Regulations respec ting the T err itory or other Prope rty belong ing to the United States.” U.S. Const., Art. I V, § 3, cl. 2. The ref ore, the re is a te x tually demonstrable c onstitut ional commitment of these issues to the political branc hes. F urthermor e, it would be impossibl e for this Court t o g rant the r elief r equeste d by Plaintiff without dis turbinga judgme nt of the leg islative and executive bra nches that has rema ined untouched by the fe dera l courts for over a centur y . Since its annexation in 1898 and admission t o the Union as a State in 1959, Hawa ii has been f

irmly established as pa

rt of the United States. The passag e of time a nd the sig nificanc e of the issue of sover eig nty prese nt an unusual nee d for unque stioning adhe renc e to a political decision alre ady made. Plaintiff argues that he is not cha lleng ing the leg ality of the State of H awa ii and his conviction but is merely

asser ting a claim for a

violation of the L iliuokalani Assignment unde r the Alien Tort Statute, 28 U.S.C. § 1350. Howeve r, in order to find that Defe ndants have violated the L iliuokalani Assignment a s alleg ed by Plaintiff—or eve n to conclude that Plainti ff is an alien c apable of bring ing c laims under the Alien T ort Statute rather than a U.S. citizen—the Court would have to dete rmine that the a nnexation of Hawa ii by

the United States wa s unlawful and void. As desc ribed a bove, that is a political question that this Court cannot dec ide. The f act that the answe r mig ht be g leane d throug h a straightforwa rd ana ly sis of fede ral a

nd international law does not matter ; “[t] he political question doctrine deprives fe dera l courts of jurisdiction,
9based on pr udential conc erns, ove r ca ses which would nor mally fall within their purview .” Lin , 561 F.3d at 506; see id. (“We do not disag ree with Appellants’ asse rtion that we could resolve this case through treaty

analy sis and statutory

construction; we me rely

decline to do so a s this

case prese nts a political question which strips us of jurisdiction to undertake that otherwise familiar task.” ) (inter

nal citations omitted). There fore , the Court must dism iss Pl aintiff’s F irst Amended Complaint for la ck of subjec t matter jurisdiction. B. Plaintif

f’s Proposed Suppleme ntal Complai nt Does Not Assert a Justiciable Claim Plaintiff has filed a Motion for L eave to File Supplemental Complaint, which is opposed by Def endants. Pursuant to Rule 15(d), “ the cour t may , on just terms, permit a par ty to serve a supplemental plea ding se tting out any transac tion, occurr ence , or eve nt that happene d afte r the date of the pleadingto be supplemented. The court may permit supplementation eve n though the orig inal pleadingis defec tive in stating a claim or de fense .” F ed. R. Civ. P. 15(d). “The de cision whether to gr ant leave to amend or suppleme nt a complaint is within the discretion of the district court, but leave ‘should be f ree ly g iven unless there is a g ood rea son, such as futility , to the contra ry .’” W ildearth Guardians v. Kempthorne , 592 F. Supp. 2d 18, 23 (D.D .C. 2008) (quoting W illoughby v. Potomac Ele c. Power Co. , 100 F.3d 999, 1003 ( D.C. Cir. 1996)). He re, Plaintiff seeks to supplement his complaint by addingPresident B ara ck Obama as a defe ndant along

with thirty -five a

mbassadors to the United States f rom various c ountries with consular of fice s in Hawa ii. Pl aintiff also see ks to add specif ic alleg ations relatingto eac h of these pr oposed defe ndants’ alleg edly

unlawful a ctions in the Hawa iian King dom. The Court finds that Plaintiff’s propose d supplemental complaint pre sents the same

10nonjusticiable political question presente d in the First Amende d Complaint. Therefor e, the Court

shall deny

Plaintiff’s motion for leave to file a supplementa l complaint as futile. B eca use Plaintiff has not prese nted the Court with any justiciable claims, the Court must also dismi ss the pendingmotions for intervention under Rule 24. See B lack v . Cent. Motor Lines, Inc. , 500 F.2d 407, 408 (4th Cir. 1974) (“ Interve ntion is ancillary and subordinate to a main ca use and whene ver a

n action is terminated, f

or wha tever rea son, there no long er r emains an a ction in which ther e ca

n be an inter

vention. By

its very nature intervention pre supposes pende ncy of an action in a c ourt of compe tent jurisdiction.”) (inter nal citation omitted). Acc ording ly , the Court shall dismis s this action in its entirety

. IV. CONCLUSION For the fore g oing r easons, the Court f inds that the claims asser

ted by Plaintiff in this action pre sent a political question over which this Court lacks subject matter jurisdiction. Acc ording ly , the Court shall GRANT De fenda nts’ [10] Motion to Dism iss; DENY Plaintiff’s [21] Motion for L eave to File Supplemental Complaint; DENY Alfre d Napa huelua Spinney ’s [17] Application to Interve ne; and DENY James Kimo Keka’ s [30] Motion to I nterve ne. An appropr iate Or der a ccompa nies this Memorandum Opinion.

/s/ COL L EEN KOL LAR-KOTELL Y United States District J udg e

11