1872, c 21, 1; RL 1925, 568; RL 1935, 1587; RL 1945, 4641; RL 1955, ; HRS ]

Transcription

1

2 3. Defendant claims a 1/9 th interest to L.C.A. 8559B Apana 36, Aupuaa, Kuholilea, Lahaina, Maui, so issued shall inure to the benefit of Maltbie K. Napoleon. [L 1872, c 21, 1; RL 1925, 568; RL 1935, 1587; RL 1945, 4641; RL 1955, ; HRS ] Date Maltbie K. Napoleon

3 Maltbie K. Napoleon 1568 Miller St. Honolulu, Oahu Pro Se Heir of Pamahoa IN THE LAND COURT OF THE STATE OF HAWAII In the matter of the Application of ) Ld. Ct. App. No. 439(amended) ) PIONEER MILL COMPANY, LIMITED, ) Ld. Ct. Case No ) to register title and confirm it s title to land ) Memorandum in Support of Claim of situate at Lahaina, Island and County of ) Interest of Maltbie K. Napoleon, Exhibits Maui, State of Hawaii, ) A-D. Certificate of Service. ) and ) ) File Date: November 1, 2010 KAHOMA LAND LLC., substituted applicant as to Lots 1,2,3A, ) ) ) Judge: Honorable GARY W.B. CHANG ) Memorandum In Support Of Claim Of Interest Of Maltbie K. Napoleon, Exhibits A-D Comes now Maltbie K. Napoleon, herein, DEFENDANT, to present Memorandum of Support of Claim of Interest of Maltbie K. Napoleon, Exhibits A-D. Introduction 1. The Hawaiian Kingdom was governed until 1838, without legal enactment s, and was based upon a system of common law, which consisted partly of the ancient taboo, and the practices of the celebrated chiefs, that had been passed down by tradition since time immemorial. The Declaration of Rights, proposed and signed by His Majesty King Kamehameha III on June 7, 1839, was the first essential departure from the

4 ancient ways. Declaration of Rights of 1839, preamble to the Hawaii Constitution of The Declaration of Rights of 1839, particularly recognized that there are but three classes of persons having vested rights in the lands; 1st, the Government (i.e. the King;) 2nd, the landlords (Chiefs), and 3rd, the tenant (Native Tenants), and declared protection of the rights to both the Chiefly and Tenant classes. Estate of Kamehameha IV, 2 Haw. 719 (1864); Principles, vol. 2, Haw. Stat. laws, p. 83 (1846); Privy Council, Dec. 11, 1847, vol. 2, 87. These rights were not limited to the land, but included the right to "...life, limb, liberty, freedom from oppression; the earnings of his hands and the productions of his mind, not however to those who act in violation of the laws." Declaration of Rights of 1839-preamble to the Hawaiian Kingdom Constitution of On October 8, 1840, His Majesty King Kamehameha III voluntarily divested himself of his absolute powers and attributes by promulgating a constitution that recognized three grand divisions of a civilized monarchy; the King as the Chief Executive, the Legislature, and the Judiciary. Hawaiian Kingdom Constitution of The Legislative Department of the Kingdom was composed of the King, the House of Nobles, and the House of Representatives, each of which has a negative on the other. The King representing the vested right of the Government class, the House of Nobles representing the vested right of the Landlord (Chiefly) class, and the House of Representatives representing the vested rights of the Tenant (Native) class. 4. The constitution generally defined the duties of each branch of government. Civilly, the laws embraced the usual rights and duties of the social relations between the three

5 classes of people, and initiated the internal development of the country with the promotion of industry and commerce. In these laws the fundamental basis of landed tenure was declared, and cultivation of the soil, under a feudal tenancy not much differing that of ancient Europe, was encouraged by relaxing the vassal service of the Chiefly and Tenant classes. 5. On June 24, 1845, a Joint Resolution was enacted by the Legislature and signed into law, calling upon the Attorney General, to draw up a complete set of the existing laws, embracing the organic forms of the different departments, particularly the executive and judicial branches, with an outline of their duties and modes of procedure. This had brought forth the First Act of Kamehameha III to Organize the Executive Ministries, the Second Act of Kamehameha III to Organize the Executive Departments, and the Third Act of Kamehameha III to Organize the Judiciary Department. These Acts came to be known as the Organic Acts of Statute Laws of Kamehameha 111, 1845 and On September 27, 1847, the Legislature passed a law calling upon Chief Justice William L. Lee to establish a Penal Code. In the year 1850, a Penal Code was submitted to the Legislature by Chief Justice Lee and signed into law by His Majesty Kamehameha III, which had adopted the principles of the English common law. Penal Code of the Hawaiian Kingdom Eighteen years later, in 1865, the Judges of the Supreme Court were directed by an act of the Legislature, on June 22, to compile and ready to publish, the Penal Laws of the Kingdom. The matter required a compilation of the amendments and additions made to the Penal Code

6 since 1850, and in the year 1869, a revised Penal Code was published. Penal Code of the Hawaiian Kingdom, In the month of December, 1847, the subject of formulating an instrument to divide out the vested "undivided" rights in the land, was discussed at length in the King's Privy Council. On December 18, 1847, certain principles, numbering seven (7) in all, were introduced by Chief Justice William L. Lee, and unanimously voted upon and passed by the King and his Privy Council. With these rules in mind it was resolved in Privy Council to effect through the assistance of a Committee, a division of lands between the King, as suzerain, and the high Chiefs, his feudatories. Between January 27, 1848 and March 7, 1848 it was completed. As a result, the vested "undivided" rights of the Government class and the Konohiki class in and to all the lands of the Hawaiian Kingdom were set in motion to be "divided" out from each other in a series of steps, but the vested "undivided" rights of the Native Tenant class remained "undivided" until the natives of this class desire to "divide" out their interest in the lands now held by the Government class or the Konohiki class, in accordance with Hawaiian Kingdom law. 8. On December 21, 1849, the King in Privy Council passed a resolution that waived the commutation due to the Government class and the Konohiki class for all native tenants who wish to divide their undivided rights in the lands of the Government or a particular Konohiki, named in the Great Mahele, and receive a fee-simple title for their house lot, being no more than a quarter acre, and their cultivating lands. This resolution was confirmed by the Hawaiian Legislature and passed into law on August 6, 1850.

7 9. On December 20, 1849, a Treaty of Friendship, Commerce, and Navigation, between the United States of America and His Majesty King Kamehameha III, the King of the Hawaiian Islands, was concluded and signed at Washington. Ratification s by both countries were exchanged at Honolulu, Island of 0'ahu, on August 24, 1850, and the treaty was in force from that date, for the term of ten years, and further until either of the contracting parties shall give notice to the other of its intention to terminate. Article I of the Treaty of 1850, provides that there "...shall be perpetual peace and amity between the United States and the King of the Hawaiian Islands, his heirs and his successors." (emphasis added). Furthermore, Article VIII of the Treaty of 1850 provides that "...each of the two contracting parties engages that the citizens or subjects of the other residing in their respective States shall enjoy their property and personal security in as full and ample manner as their own citizens or subjects, or the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries, respectively." (emphasis added). In addition, Article XVI provides that any "citizen or subject of either party infringing the articles of this treaty shall be held responsible for the same, and the harmony and good correspondence between the two governments shall not be interrupted thereby, each party engaging in no way to protect the offender, or sanction such violation." (emphasis added). Treaty of Commerce, and Navigation, Aug. 24, 1850, art. I, art. VIII, art. XVI. 10. The United States government has violated and currently stands in grave breach of this 1850 Treaty of Friendship, Commerce and Navigation with the Hawaiian Kingdom. Neither country gave notice to the other of its intention to terminate the

8 same in accordance with article XVI of the said treaty. Therefore the treaty is still in full force and legal effect until today. 11. In 1887 certain naturalized subjects of the Hawaiian Kingdom and foreign nationals, which included citizens of the United States, met in a mass meeting to organize a takeover of the political power of the native population in the Kingdom. Blount Report. Affairs in Hawai'i These individuals were organized under the name "Honolulu Rifles," and threatened His Majesty King Kalakaua with bodily harm to accept a new cabinet of ministers and a new constitution. Thereafter an election was made to organize a new Legislature, but voters, which for the first time included foreign nationals, had to swear an oath to support the new constitution before they could vote. 12. In spite of the extortion of the Constitution of 1887, commonly known as the "bayonet constitution," the Constitution of 1864 and the Session laws of the Legislative Assembly enacted prior to July 7, 1887, aforesaid, still remain in full force and legal effect in the Hawaiian Kingdom as of today and have been in effect at all times, continuously since promulgation. Article 78 of the Constitution of 1864, aforesaid, provides that all "...laws now in force in this Kingdom, shall continue and remain in full effect, until altered or repealed by the Legislature; such parts only excepted as are repugnant to this Constitution. All laws heretofore enacted, or that may hereafter be enacted, which are contrary to this Constitution, shall be null and void." Constitution of 1864, art. 78.

9 13. On January 29, 1891, His Majesty King David Kalakaua passed away and his named successor, Lydia Kamaka'eha Dominis, ascended to the office of Constitutional Monarch and was thereafter called Queen Lili'uokalani. 14. In order to counter the effects wrought by the extortion of the constitution of 1887, Her Majesty Queen Lili'uokalani, drafted a new constitution that embodied the principles and wording of the Constitution of 1864, on January 14, Under article 22 of the constitution it stated that the "...Crown is hereby permanently confirmed to Her Majesty Lili'uokalani, and to the Heirs of Her body lawfully begotten, and to their lawful Descendants in a direct line; failing whom, the Crown shall descend to Her Royal Highness the Princess Victoria Ka'iulani and the heirs of her body, lawfully begotten, and their descendants in a direct line; failing whom the Crown shall descend to His Royal Highness the Prince David Kawananakoa, and the heirs of his body, lawfully begotten, and their descendants in a direct line; failing whom, the Crown shall descend to His Royal Highness the Prince Jonah Kuhio Kalaniana'ole, and the heirs of his body, lawfully begotten, and their lawful descendants in a direct line." Draft Constitution of This constitution was not law, but remained subject to be ratified by the Legislative Assembly, which has been out of session since October of In response to the drafting of the new constitution by Her Majesty Queen Lili'uokalani that would restore the political power of the native population, a "committee of safety" that represented the American and European sugar planters, descendants of missionaries, and financiers committed the crime of high treason as defined in chapter VI, 1, Hawaiian Penal Code, on January 17, 1893, by deposing

10 Her Majesty Queen Lili'uokalani and her cabinet and proclaimed the establishment of a provisional government. Penal Code of the Hawaiian Kingdom, 1869, p. 16. Soon thereafter, when informed of the risk of bloodshed with resistance, Her Majesty Queen Lili'uokalani issued a statement "temporarily" yielding her executive authority as the constitutional Monarch to the United States Government, by its President, as a fact finder, rather than to the Provisional Government. Thereafter all Government employees of the Hawaiian Kingdom were forced- to sign oaths of allegiance to the provisional government. "I Lili'uokalani, by the Grace of God and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the Constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom-..Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands." 17. In violation of treaties entered between the Hawaiian Kingdom and the United States and basic principles of international law, the United States Minister Stevens extended diplomatic recognition to the provisional government, that was formed by traitors, without the consent of the Government of the Hawaiian Kingdom. 18. The report of a Presidentially established investigation conducted by former U.S. Congressman James Blount into the events surrounding the treasonous actions and overthrow of January 17, 1893, concluded that the United States diplomatic and military representatives had abused their authority and were responsible for the change in government.

11 19. In a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the traitors, described such acts as an "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress," and acknowledged that by such acts the government of a peaceful and friendly people was overthrown. 20. President Cleveland further concluded that a "substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair" and called for the restoration of the Government of the Hawaiian Kingdom. 21. On July 4, 1894, the provisional government declared itself to be the Republic of Hawai'i, and maintained their opposition to the restoration of the Hawaiian Kingdom Government as called for by United States President Grover Cleveland. 22. On June 16, 1897, a treaty of annexation was signed in Washington, D.C., between representatives of the Republic of Hawai'i and the United States of America, but remained subject to ratification by the United States Senate. 23. On June 17, 1897, in Washington, D.C., Queen Lili'uokalani submitted to the Senate of the United States, a formal protest to the treaty of annexation that attempted to transfer the territory of the Hawaiian Kingdom to the United States of America, in part, to wit: On November 11, 1917, Her Majesty Queen Lili'uokalani died, leaving the Throne vacant without naming a successor in accordance with Kingdom law. 'The Royal Stirps having been declared under article 22 of the constitution of January 14, 1894, was not ratified by the Legislative Assembly in accordance with Kingdom law, and cannot be considered to be binding and effective. Because the official protests made by me on the 17th day of January, 1893, to the so-called Provisional Government was signed by me, and received by said

12 government with the assurance that the case was referred to the United States of America for arbitration... Because the President of the United States, the Secretary of State, and an envoy commissioned by them reported in official documents that my government was unlawfully coerced by the forces, diplomatic and naval of the United States; that I was at the date of their investigation the constitutional ruler of my people... Because said treaty ignores, not only all professions of perpetual amity and good faith made by the United States in former treaties with the sovereigns representing the Hawaiian people, but all treaties made by those sovereigns with other and friendly powers, and it is thereby in violation of international law. Because, by treating with the parties claiming at this time the right to cede said territory of Hawai'i, the Government of the United States receives such territory from the hands of those whom its own magistrates (legally elected by the people of the United States, and in office in 1893) pronounce fraudulently in power and unconstitutionally ruling Hawai'i.... Therefore I, Lili'uokalani of Hawai'i, do hereby call upon the President of that nation, to whom alone I yielded my property and authority, to withdraw said treaty (ceding said Islands) from further consideration." (emphasis added) 24. The United States Senate failed to acquire the required 2/3's vote, as mandated by the U.S. Constitution, to ratify the treaty of annexation with the Republic of Hawai'i. Consequently the United States of America was prevented from entering the territorial jurisdiction of the Hawaiian Kingdom, a sovereign nation, without standing in violation of its own organic laws and of international law. 25. The U.S. Constitution confers absolutely on the United States government the power of making war and treaties. Therefore, the United States government possesses the constitutional power of acquiring foreign territory either by conquest or by treaty. Neither conquest nor treaty of cession occurred between the Hawaiian Kingdom, a foreign territory, and the United States of America, since 1897 to the present. Without a treaty of annexation by the Hawaiian Kingdom, the Joint Resolution of Annexation, July 7, 1898; the Act organizing the Territory of Hawai'i, April 30, 1900; and the Act admitting State of Hawai'i into the Union, March 18, 1959, cannot

13 have any effect outside of the territorial jurisdiction of the United States of America, which jurisdiction does not include the Hawaiian Kingdom, being a separate country. 25. Only by means of treaties, 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. It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. As stated on October 4, 1998, Opinion by the Office of Legal Counsel of the Department of Justice. 26. (t)he unilateral modification or repeal of a provision of a treaty by Act of Congress, although effective as a matter of domestic law, will not generally relieve the United States of the international legal obligations that it may have under that provision. (while an Act of Congress that conflicted with a treaty provision would control as the latter expression of our municipal law the international obligation [would] remain unaffected ). 27. On or about October 18, 1893, Secretary of State Gresham, by authority of the President, directed U.S. Minister Plenipotentiary Albert Willis to initiate negotiations with Queen Lili`uokalani for settlement and restoration of the Hawaii government. He stated to the Minister, You will inform the Queen that, when reinstated, the President expects that she will pursue a magnanimous course by granting fully amnesty to all who participated in the movement against her, including persons who are, or have been, officially or otherwise, connected with the Provisional Government, depriving them of no right or privilege which they enjoyed before the so-called revolution.

14 28. On or about November 13, 1893, U.S. Minister Willis met with the Queen at the U.S. Legation in Honolulu. Willis conveyed to the Queen the President s sincere regret that, through the unauthorized intervention of the United States, she had been obliged to surrender her sovereignty, and his hope that, with her consent and cooperation, the wrong done to her and to her people might be redressed. He continued, The President not only tenders you sympathy but wishes to help you, [and] Should you be restored to the throne, would you grant full amnesty as to life and property to all those persons who have been or who are now in the Provisional Government, or who have been instrumental in the overthrow of your government? (Id.). In this initial meeting, the Queen refused to grant amnesty and cited Chapter VI, section 9 of the Penal Code, as follows: Whoever shall commit the crime of treason shall suffer the punishment of death and all his property shall be confiscated to the Government. The U.S. Minister notified the Secretary of State of the Queen s refusal to grant amnesty on or about November 16, 1893 by dispatch. 29. Not satisfied with the outcome of the initial meeting, Secretary State Gresham dispatched to Minister Willis on or about November 24, 1893, The brevity and uncertainty of your telegrams are embarrassing. You will insist upon amnesty and recognition of obligations of the Provisional Government as essential conditions of restoration. In follow-up instructions to Minister Willis on or about December 3, 1893, the Secretary of State emphatically stated Should the Queen refuse assent to the written conditions, you will at once inform her that the President will cease interposition in her behalf, and that while he deems it his duty to endeavor to restore to the sovereign the constitutional government of the islands, his further efforts in that

15 direction will depend upon the Queen s unqualified agreement that all obligations created by the Provisional Government in a proper course of administration shall be assumed and upon such pledges by her as will prevent the adoption of measures of proscription or punishment for what was done in the past by those setting up or supporting the Provisional Government. Negotiations for settlement continued. 30. On or about December 18, 1893, the U.S. Minister was notified by the Queen s assistant, Joseph Carter, that she was willing to spare their lives, not, however, their property, which, should be confiscated to the Government, and they should not be permitted to remain in the Kingdom. But later that day the Queen agreed to grant a full pardon and amnesty for their offenses, with restoration of all rights, privileges, and immunities under the constitution and the laws which have been made in pursuance thereof, and that I will forbid and prevent the adoption of any measures of proscription or punishment for what has been done in the past by those setting up or supporting the Provisional Government. The U.S. Minister dispatched the Declaration to the Secretary of State on or about December 20, On or about January 12, 1894, Secretary of State Gresham acknowledged receipt of the Queen s declaration and stated to Minister Willis that the matter now being in the hands of Congress the President will keep that body fully advised of the situation, and will lay before it from time to time the reports received from you, heretofore withheld, and all instructions to you. In the mean time, while keeping the Department fully informed of the course of events, you will, until further notice, consider that your special instructions upon this subject have been fully complied with.

16 32. In violation of these executive agreements, President Cleveland did not restore the Hawaiian Kingdom government, nor did he administer Hawaiian Kingdom law. Instead, he allowed the insurgents to maintain unlawful control over the Hawaiian Islands until his successor President William McKinley entered office on March 4, As a result, in succession of administrations the Plaintiff is resident of the Hawaiian Islands and subject to the laws of this kingdom. Title 1. Chapter II. 6. Of the Civil Code of the Hawaiian Islands, states in pertinent part; The laws are obligatory upon all persons whether subjects of this kingdom or citizens or subjects of any foreign State, while within the limits of this kingdom, Arguments Plaintiff s Title Is Defective As The Freehold Estate Of Inheritance Remains Vested Maria Espinda, Executrix Of The ESTATE OF JOSE ESPINDA. 34. On January, , Ka Buke Kakau Paa p.22, Kamehameha III to Charles Kanaina for William Charles Lunalilo, includes the Ahupuaa of Kuholilea, a certified copy attached as Exhibit B. 35. On August 27, 1850, the King in Privy Council passed a resolution that converted William Charles Lunalilo s freehold estate not of inheritance, namely his life estate grant, 8559B Apana 26, into an inheritable estate, namely a fee simple title, without division or commutation. The King s private feudatory right of inheritance having been extinguished, a certified copy attached as Exhibit C. 36. On May 26, 1854, the L.C.A. 8559B Apana 26, issued to William Charles Lunalilo, ahupuaa Kuholilea, a certified copy attached as Exhibit D.

17 37. The record shows that on March 23, 1883, the Estate of William Charles Lunalilo, did convey by deed, a portion of L.C.A 8559B, Apana 26, Kuholilea, Lahaina, Maui to Jose Espinda. 38. The record shows that on or about September 1892, in the Matter of the Estate of Jose Espinda, deceased, testate, appoints his wife Maria as Executrix of the last will and testament, will dated April 15, 1886 and admitted to Probate May 10, 1890, before George E. Richardson, Circuit Judge, Second Judicial Circuit, Hawaiian Islands. 39. The record also shows that on the 11 th day of July, 1890, Maria Espinda, Executrix of the ESTATE OF JOSE ESPINDA, Book 124, p.405, leases a portion of Kuholilea to C.F. Horner and Paul Isenberg, doing business as PIONEER MILL. 40. On January 17, 1893, certain individuals calling themselves the committee of safety committed the crime of treason by taking over the government of the Hawaiian Kingdom, and forcibly removed Queen Lili uokalani and her cabinet from office. All appointed positions deriving their authority from the office of the monarch, which include the Registrar of the Bureau of Conveyances under Chapter XXVI, section 1249, Civil Code, and the Notary Publics under Chapter XXVI, section 1266, Civil Code, were all cancelled and rendered void. All conveyances arising after the 17 th day of January, 1893, were not capable of being recorded in accordance with Chapter XXVI of the Civil Code of the Hawaiian Islands. 41. U.S. President Grover Cleveland called this act an, "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress," and Therefore the military occupation of Honolulu by the United

18 States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life 42. The onset of U.S. occupation of Hawaii clearly shows a break in title without the signature of the sovereign to transfer authority to the provisional government. As such, all conveyances were not capable of being recorded in accordance with Chapter XXVI of the Civil Code of the Hawaiian Islands. 43. Plaintiff s title is defective as the freehold estate of inheritance, namely the fee-simple title to this particular piece or parcel of property, 8559B, Kuholilea, Lahaina, Maui, remains vested in Maria Espinda, Executrix of the ESTATE OF JOSE ESPINDA and any and all conveyances done after the 17 th day of January, 1893, being recorded or unrecorded, are void and without merit. Plaintiff s Claim of Adverse Possession Is Without Merit 44. Plaintiff may have a claim under Hawaiian Kingdom law but under the present circumstances of U.S occupation Plaintiff s claim of adverse possession is without merit. 45. In a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the traitors, described such acts as an "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress," and acknowledged that by such acts the government of a peaceful and friendly people was overthrown. 46. It was further stated, Therefore the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and

19 property. It must be accounted for in some other way and on some other ground, and its real motive and purpose are neither obscure nor far to seek. 47. Referring to the American occupation of Hawai`i, Patrick Dumberry states: the 1907 Hague Convention protects the international personality of the occupied State, even in the absence of effectiveness. Furthermore, the legal order of the occupied State remains intact, although its effectiveness is greatly diminished by the fact of occupation. As such, Article 43 of the 1907 Hague Convention IV provides for the co-existence of two distinct legal orders, that of the occupier and the occupied. According to von Glahn, there are three distinct systems of law that exist in an occupied territory: the indigenous law of the legitimate sovereign, to the extent that it has not been necessary to suspend it; the laws (legislation, orders, decrees, proclamations, and regulations) of the occupant, which are gradually introduced; and the applicable rules of customary and conventional international law. Hawai`i s sovereignty is maintained and protected as a subject of international law, in spite of the absence of a diplomatically recognized government since Without a treaty of annexation, transfer of title and/or authority from the Hawaiian government to the committee of safety, provisional government, Territory, State of Hawaii cannot be construed as lawful under the law of the land. Implied laws concerning adverse possession imposed on the occupant must comply with international provisions to regulate private property established in Hawaii, in esp. by treaty, Title 1. Chapter II. 6. Of the Civil Code, and the Hague Convention 1907, therefore, Plaintiff s claim of adverse possession is null and void as Plaintiff s chain of title is broken at the onset of U.S. occupation.

20 49. Furthermore, it must be considered that William Charles Lunalilo s inheritable estate, namely a fee simple title, descends to the heirs upon broken title, a condition which voids the claim of adverse possession in this kingdom. Some states have found that a presumption of permissive use exists between close family members of adjacent properties unless evidence is presented to the contrary Am. Jur. Proof of Facts 3d (July 2008); see Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580 (1947); Norgong v. Whitehead, 225 Minn. 379, 31 N.W.2d 267 (1948); Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984). 50. Other states have found that "in jurisdictions where an adverse claimant s open and continuous use of disputed property creates a presumption of hostile use," the familial relationship can negate this presumption Am. Jur. Proof of Facts 3d (July 2008). 51. William Charles Lunalilo s inheritable estate Royal Patent No. 8397, is alodio and represents a superior title. In other states it was found, The claimants in the case were seeking to tack on to their predecessors interest to satisfy the 20-year prescriptive time period, saying that the predecessors had used and landscaped the property in question and had represented to the claimants that the property was theirs even though title for that parcel was not conveyed to the claimants. Mann at 308; Morris v. Humphrey, 146 Ill.App.3d 612, 615, 496 N.E.2d 1209, 1211 (3rd Dist. 1986); Baumann v. Lawndale National Bank of Chicago, 45 Ill.App.3d 328, 332, 359 N.E.2d 1086, 1091 (2nd Dist. 1977). In its decision against the claimant, the Mann court specifically addressed the "hostile or adverse" element by saying that it "need not demonstrate any actual ill will, but merely an assertion of ownership incompatible

21 with any other claim of right." Finally, in Baumann v. Lawndale National Bank of Chicago, the claimant was seeking title to property upon which he had made extensive improvements, such as erecting fencing, lighting, installing a two-car gravel parking space, rerouting the septic field, and using it as an outdoor riding ring and for grazing his horses, despite never receiving permission to make any of these improvements. The appellate court held that, when tacking on to a predecessor s claim of ownership in a property, evidence must be presented to show that the predecessor intended or attempted to transfer the disputed land. Failure by the predecessor to do so indicates that the predecessor recognized superior title to the property he used. 52. In view of the aforementioned facts, Plaintiff s claim of adverse possession is void at the onset of U.S. occupation prescribed under the Kanawai, the treaty, and international law, in esp. the Hague Convention Plaintiff s Attorney s MICHAEL W. GIBSON, ESQ., R. CLAY SUTHERLAND, ESQ. Are Not Competant Attorney s Under Hawaiian Law 53. Laws Governing Practicing Attorneys in the Hawaiian Islands. Section IX, Chapter 1, of the Third Act of Kamehameha III, empowered the Courts of record to examine and admit attorneys into their respective bars. 54. Since that enactment, the Hawaiian Legislature further defined this section under section 1065, chapter SSI, title 4, of the Compiled Laws, 1884, to wit: The Supreme Court shall have power to examine and admit as prosecutioners, in the courts of record, such person, being Hawaiian subjects, of good moral character, and having taken the prescribed oath of office, as said court may find qualified for that purpose. Section 1969, chapter XXI, title 4, aforesaid, prescribes the oath as follows,,

22 being duly sworn, deposes that he will support the Constitution and laws of the Hawaiian Islands, and faithfully discharge the duties of attorney, counselor, solicitor and proctor, in the courts of this Kingdom, to the best of his ability. 55. Plaintiff s Attorney s MICHAEL W. GIBSON, ESQ., R. CLAY SUTHERLAND, claims to be a practicing attorney in the Hawaiian Islands, and having been admitted into the bar by the Supreme court of Hawaii, you swore the following oath, to wit: I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of the State of Hawaii, and that I will at all times conduct myself with the Hawaii Rules of Professional Conduct. As an officer of the courts to which I am admitted to practice, I will conduct myself with dignity and civility towards judicial officers, court staff, and my fellow professionals By this oath and admittance into the bar, MICHAEL W. GIBSON, ESQ., R. CLAY SUTHERLAND, is not a competent practitioner of law in the Hawaiian Islands under section 1065, chapter XXI, title 4, aforesaid, and cannot claim any more competency than the state of Hawaii and its political subdivisions can claim sovereign authority without standing in contravention of Hawaiian Law and in violation of the Treaty between the United States and the Hawaiian Kingdom, 1850 and the Hague Convention, Laws of War. MICHAEL W. GIBSON, ESQ., R. CLAY SUTHERLAND, cannot exercise American municipal law in the Hawaiian Islands nor over its subjects.

23 Plaintiff Has No Title As Property Is Open Bonded Probate Estate No Plaintiff has no title to a portion of 8559B Apana 26, Kuholilea, Lahaina, Maui, as said property is open bonded probate no. 2413, estate of William Charles Lunalilo, which Defendant, beneficiary, has no accounting or distribution. 57. Based on the constitutional laws of Hawaii Pae Aina, the Kanawai gave procedural requirements for selling properties belonging to the heirs during open probate proceedings as discussed in, E.K. Lipoa by her guardian J.D. Robinson v. J.I. Dowsett, et.als., 3 Haw. 625, (1875). That case recognized the requirement of obtaining authorization to transfer real property or interests held in an estate and the necessity of a subsequent deed conveying the property being signed by the administrator of the estate. In Burick v. Disher, 1 Haw. 114, 115 (1852), the court affirmed statutes of the nation by upholding an 1822 law by King Kauikeauoli, in that all leases, deeds, etc., shall be recorded: and that no conveyance of real estate not recorded within thirty days after it s execution, shall be valid as against a subsequent deed of the same estate, previously recorded. 58. Without a lawful transfer of authority to the provisional government, Republic, State, Plaintiff s failed to obtain authorization to transfer real property or interests held in the estate and the necessity of a subsequent deed conveying the property being signed by the administrator of the estate. 59. The evidence of the record shows that, in the matter of the Probate of W.C. Lunalio, Charles Kanaina, is the heir-at-law, whereby, the laws of descent apply to his inheritable estate. In succession Charles Kanaina s estate by the laws of descent to his heirs, Pamahoa and by descent to Defendant, see Defendant s Affidavit attached as

24 Exhibit A. No accounting or distribution of said estate has ever been made to Defendant. 60. Plaintiff is legally bound by the Universal Declaration of Human Rights, article 17 proclaims everybody s right to own property and the customary international laws on self-determination of peoples articulated in the human rights Covenant of 1966 on civil and political rights, and on economic, social and cultural rights. Conclusion 61. In view of the aforementioned facts, Plaintiff s claim of ownership of said portion of property, 8559B, Kuholilea, Lahaina Maui, has not presented (1), evidence of valid conveyance of title from Maria Espinda, Executrix of the ESTATE OF JOSE ESPINDA, after January 16, 1893, (2), a lawful claim of adverse possession in the Hawaiian domain, (3), failure of Plaintiff to disclose the open bonded probate estate no. 2413, and (4), Plaintiff s Attorney s discharge of duties, in light of the presence of U.S. occupation of Hawaii, whereby, Plaintiff s claims of ownership of said portion of property stands in contravention of Kanawai and international law and therefore, null and void. Dated Maltbie K. Napoleon

25 Exhibit A

26

27 Affidavit of Heir and Descendant of Charles Kanaina and William Charles Lunalilo and Queen Kalama State of Hawaii } }ss City and County of Honolulu } Declaration of Affidavit of Heir Descendant Maltbie K. Napoleon I am competent and have first hand knowledge of the facts listed herein, I reside at 1568 Miller St. #1, Honolulu, Oahu, within the royal patented domain of ko Hawaii Pae Aina upon the royal patented land, without illegitimate interruption. 1. E hea e ke kanaka maoli oiwi of ko Hawaii pae aina. 2. I am the son and heir of Walter Kamakaunamauukaulanikauleileiaiwi Napoleon Jr., a certified copy of birth certificate attached as Exhibit A. 3. Walter Kamakaunamauukaulanikauleileiaiwi Napoleon Jr., is the son and heir of Walter Kamakaunamauukaulanikauleileiaiwi Napoleon, a certified copy of birth certificate, attached as Exhibit B. 4. Walter Kamakaunamauukaulanikauleileiaiwi Napoleon, is the son and heir of Titus Kealiihoouluaauopuowaina Nihi Napoleon, a certified copy of marriage certificate, attached as Exhibit C. 5. Titus Kealiihoouluaauopuowaina Nihi Napoleon, is the son and heir of Pamahoa, a certified copy of marriage certificate, attached as Exhibit D. 6. Pamahoa is an heir of Charles Kanaina, a certified copy of Probate No is attached as Exhibit E. 7. Charles Kanaina is the father of William Charles Lunalilo, a certified copy of Probate No is attached as Exhibit F. 8. Charles Kanaina is the sole heir of Queen Kalama, a certified copy of Probate No is attached as Exhibit G.

28 9. Affiant, Maltbie K. Napoleon, is an heir and descendant of Charles Kanaina, L.C.A and William Charles Lunalilo, L.C.A B, and Queen Kalama L.C.A Affiant herein has given constructive notice, Affidavit of Heir and Successor of Charles Kanaina and William Charles Lunalilo and Queen Kalama and filed Doc. No , May 11, Affiant is a trustee of KA AHA HILINAI O PAMAHOA, IT, Doc , Doc , Doc , Doc , 16 Jan 08, and has given constructive notice, Doc , 6 Feb 08 and you failed to answer said notice, Doc May 08, is prima facie, evidence, your tacit recognition, that you have no right, title or interest you have in said properties, according to Kumukanawai and laws, to the heirs of Charles Kanaina and William Charles Lunalilo and Queen Kalama. As such, you are at commercial fault and now liable for damages under civil/criminal penalties. 12. Affiant has an equitable interest and cause of action as to ALL WHOM IT MAY CONCERN as an heir. 13. Affiant does not waive any rights but demands all rights guaranteed under the Kumukanawai 1864, Civila Kanawai 1859, Legislative Laws 1886 and treaties. I, Maltbie K. Napoleon, declare under penalty of law to be true and correct to the best of my knowledge and belief. Executed on this day of September, Maltbie K. Napoleon Subscribed and sworn to before me this day of September, Notary Public, State of Hawaii My commission expires:

29 Exhibit A

30 Exhibit B

31 Exhibit C

32 Exhibit D

33 Exhibit E

34

35

36 Exhibit F

37 Exhibit G

38

39 EXHIBIT B

40

41

42

43 EXHIBIT C

44

45

46

47 EXHIBIT D

48

49

50 Maltbie K. Napoleon 1568 Miller St. Honolulu, Oahu Pro Se Heir of Pamahoa IN THE LAND COURT OF THE STATE OF HAWAII In the matter of the Application of ) Ld. Ct. App. No. 439(amended) ) PIONEER MILL COMPANY, LIMITED, ) Ld. Ct. Case No ) to register title and confirm it s title to land ) Certificate of Service. situate at Lahaina, Island and County of ) Maui, State of Hawaii, ) ) and ) KAHOMA LAND LLC., substituted applicant as to Lots 1,2,3A, ) ) ) Date: November 1, 2010 ) Judge: Honorable GARY W.B. CHANG ) Certificate of Service I, Maltbie K. Napoleon, certify that, a true and correct copy of the foregoing instrument, Claim of Interest of Maltbie K. Napoleon, Memorandum in support of claim of interest of Maltbie K. Napoleon, Exhibits A-D, was duly delivered by hand or sent certified mail, return receipt, postage prepaid, to the following: GARY Y. SHIGEMURA # JOYCE M. BROWN # Fort Street Town 745 Fort Street Honolulu, HI Telephone: Fax: Attorneys for Claimants/ Heirs of Kilinahe

51 MICHAEL W. GIBSON, ESQ. Alii Place, Suite Alakea St. Honolulu, HI Attn: FOR KAHOMA LAND, LLC Certified Mail No Return Receipt Requested R. CLAY SUTHERLAND, ESQ. 140 Hoohana St. Suite 320 Kahalui, HI COLIN J. LAU, ESQ. Deputy Attorney General Department of the Attorney General State of Hawaii Kekuanaoa Bld. Rm South King St. Honolulu, HI Dated Maltbie K. Napoleon