December 18, 1997
by Rob Perez
David Keanu Sai wants to give the U.S. Supreme Court justices a historylesson about the 1893 overthrow of the Hawaiian monarchy.
He may get that chance, though experts say his odds are slim.
Sai has sued President Clinton in the nation's highest court, askingthe justices to compel Clinton to honor the 1850 treaty between theHawaiian Kingdom and the United States.
The legal action is part of an effort by Sai and others involved withPerfect Title Co., the controversial property-search firm, to restorethe kingdom government to its pre-overthrow status. Such an effort hasbeen dismissed as absurd by many in Hawaii's legal, political and business circles.
Yet the country's top court last week put the lawsuit on its docket,meaning the justices at a minimum will consider whether to hear thecase.
If the court decides to rule on the merits of Sai's arguments, it could mark a turning point in the debate on Hawaiian sovereigntymatters, attraction national and even international attention.
But constitutional law specialists doubt the justices will take on thecase, saying technical or judicial issues likely will derail it.
"There are plenty of ways which (the justices) can deny a hearing," said Gordon Christenson, a visiting University of Hawaii law pro-fessor who has taught courses about the Supreme Court. "I would beskeptical over whether the court would decide" to hear the case.
Sai, acting without attorney representation, succeeded in getting the lawsuit on the Supreme Court's docket apparently by citing a little-used provision in the U.S. Constitution.
He claimed he was filing the lawsuit in his capacity as a regent ofthe kingdom -- a designation authorized by several dozen native Hawaiians who have pledged allegiance to the kingdom, Sai said.
Sai said he didn't file the lawsuit in his capacity as co-founderand employee of Perfect Title, which searches property records based on 19th century kingdom law and invariably determines exist-ing land titles in Hawaii are invalid.
Because the lawsuit against Clinton involves a foreign ambassador,the Supreme Court has "original jurisdiction," Sai said. In otherwords, it acts as a trial court in this case, not the nationshighest appeals court, its more typical role.
The court, however, initially rejected Sai's lawsuit and returnedhis $300 filing fee.
In a Dec. 1 letter to Sai, court representative Francis J. Lorsonsaid Sai's petition couldn't be filed because the case didn't gothrough the appeals process.
Lorson also said the court didn't have jurisdiction under the "original jurisdiction" rule because Hawaii is part of the United States.
But Sai wrote back, reiterating that he was a foreign ambassadorand therefore the court had jurisdiction.
Last Friday, an assistant for Clerk William K. Suter wrote that Sai'slawsuit had been assigned to the docket. No explanation for the change was given.
A court spokesman said a response to Sai's lawsuit is due from Clintonby Jan. 10. Once Clinton's response and Sai's rebuttal to it are received, the justices will set a conference to decide whether tohear the case, the spokesman said.
Sai said the court must hear all "original jurisdiction" cases, nothaving the discretion to choose like it has with appellate cases.
But Christenson said the justices could decide for technical reasons-- such as Sai didn't have proper standing to file the lawsuit orClinton was immune from these types of actions -- not to hear thecase.
And even if the lawsuit survived such preliminary questions, thejustices still wouldn't be likely to rule on its merit, law expertssaid.
The court typically defers matters involving foreign policy ortreaties to the executive branch, said Jon Van Dyke, another con-stitutional law expert at UH.
In the lawsuit, Sai essentially argues that the 1893 overthrow wasillegal and that the treaty between the two nations never was terminated and still is in effect. Many of his facts are takenfrom the so-called Apology Bill, signed by Clinton, that repre-sented a formal apology for the overthrow.
A Clinton spokesman said he couldn't comment on the lawsuit.
If Sai's position was upheld, that would mean radical changes inHawaii, which no longer would be a U.S. state, but a sovereignnation. Kingdom law, not U.S. law, would apply here.
While most legal experts give Sai's argument no chance of succeeding,the former military officer believes his position is irrefutable.
"This isn't a racial thing. It's not a native thing. It's the law --black and white," Sai said.
"We're not saying Americans get out. We're not saying Americans willlose everything. We're saying recognize that this is the HawaiianKingdom."
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