By Rob Perez

President Clinton has waived his right to respond to a U.S. Supreme Court lawsuit brought by an Oahu man claiming the 1850 treaty between the Hawaiian Kingdom and the United States still is in effect.

One legal expert called the development odd because he said Clinton could have successfully asked the court to dismiss the lawsuit.

Clinton, through Solicitor General Seth P. Waxman, on Friday waived his right to respond to the lawsuit filed last month by David Keanu Sai, who believes the kingdom still exists.

Sai, appointed kingdom regent by a group of native Hawaiians, also is co-founder of Perfect Title Co., the controversial title-search firm under investigation by the state. Sai has been indicted on a theft charge in that case.

Acting in his capacity as regent, Sai has asked the justices to compel Clinton to honor the treaty. He is seeking to restore the kingdom government to its status before the 1893 overthrow of the Hawaiian monarchy.

Clinton in his one-sentence filing said he would respond to Sai's petition if requested to do so by the court. A White House spokesman has said Clinton doesn't comment on pending lawsuits.

University of Hawaii law professor Jon Van Dyke, an expert on constitutional law, said Clinton could have easily derailed the lawsuit by saying the United States doesn't recognize the kingdom as a foreign nation.

Sai filed the lawsuit with the Supreme Court and not a lower court, citing a rule that gives the High Court "original jurisdiction" in cases involving foreign ambassadors.

But in questions involving foreign policy - especially those related to which governments are recognized by the United States - the court historically has deferred to the executive branch, Van Dyke said.

"By (Clinton) saying nothing, it does require the court to make its own evaluation of the issue," Van Dyke said.

A court spokesman said the nine justices now must decide whether they will hear the case. A five-vote majority is required to get the case heard in the current court session. A decision may be made next month.

Sai called the latest development significant because Clinton didn't try to get the lawsuit dismissed as frivolous - a criticism many in Hawaii's legal community have voiced.

Several local judges at the state and federal level have deemed as frivolous similar arguments Sai has used in Perfect Title cases.

The company has caused a stir in the real estate industry by using 19th-century Hawaiian kingdom law to claim existing land titles in Hawaii are invalid.

"If this is so frivolous, they (Clinton representatives) could have sought to have the case dismissed," Sai said.

Van Dyke said the Clinton administration may have determined the case was so frivolous it opted not to provide a response, believing the court would dispose of it.

Or it could have decided for political reasons not to take a position that could have upset people, Van Dyke said.

Sai is representing himself in the lawsuit. But he now has the help of an international law expert.

Francis A. Boyle, a University of Illinois professor of international law, yesterday said he is advising Sai on an unpaid basis. Boyle in 1993 was a consultant to a Hawaii commission formed to explore sovereignty options for Native Hawaiians.

The fact that Sai, who isn't an attorney, has succeeded in getting the nation's highest court to consider the case says something about Sai's arguments, Boyle said.

"I don't think he would've gotten this far unless there's some merit to his complaint," Boyle said.

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