Monthly Archives: September 2026

Amici Curiae Challenge Federal Judge Smith’s Order Denying Its Brief in Support of the Kamehameha Schools

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On September 12, 2026, the attorney for Amici Curiae filed a motion for the Court to reconsider its September 4th Order denying Amici Curiae’s brief in support of the Kamehameha Schools. The amici curiae comprise of sixty-eight scholars and academics, along with the Hawaiian Kingdom Council of Regency, from eleven countries. Four of the amici are scholars of international law.

Amicus curiae is Latin for friend of the court. If there is more than one person, the filing is called an amici curiae or friends of the court. In the American court system, an amici curiae are individuals who are not a party to the case but have a particular expertise that can assist the judge in making a consequential decision. Thus, they are called friends of the court. These kinds of briefs are important because they provide expert knowledge, highlight the broader real-world consequences of a potential ruling, and help judges make fully informed decisions.

In their brief, the amici explain why the Court is not legal because it is operating within the territory of the Hawaiian Kingdom, a country that still exists since the nineteenth century despite the unlawful overthrow of its government by U.S. troops on January 17, 1893. However, the amici state that the Court can make itself legal by transforming into an occupation court, under the law of occupation, that would administer Hawaiian Kingdom law in order for the Defendant Kamehameha Schools to have a fair trial.

At present, the Court and the Plaintiff Students for Fair Admissions are operating under American law, which the amici point out is the war crime of usurpation of sovereignty. Amici conclude their brief by stating if the Court does not begin to comply with international law and the law of occupation it would be committing the war crimes of usurpation of sovereignty and depriving Kamehameha Schools of a fair trial.

According to the Federal Rules of Civil Procedure, a motion for reconsideration is allowed if the Court committed a manifest error by applying a wrong legal standard. The motion argues the court committed a manifest error of law by misapplying Jones v. United States. In this case, the U.S. Supreme Court stated, “Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government.”

The amici stated in their motion that the executive branch of the U.S. did “determine” the Hawaiian Kingdom as the sovereign over the Hawaiian Islands when it recognized it as an independent State. Amici then state:

What followed were the 1849 Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom at the United States (9 Stat. 977); the 1875 Treaty of Reciprocity (19 Stat. 625); the 1883 Postal Convention Concerning Money Orders (23 Stat. 736); the 1884 Supplementary Convention to the 1875 Treaty of Reciprocity (25 Stat. 1399); and  the establishment of the Hawaiian Legation in Washington, D.C., and the United States Legation in Honolulu, to include both establishing Consulates in both countries.

Also, the amici curiae provided, in their brief, clear and undeniable evidence, under international law, that the United States executive branch, by its Embassy at The Hague, recognized the Hawaiian Kingdom’s continued existence as a State since the nineteenth century and the Council of Regency as its interim government during arbitration proceedings at the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, 119 International Law Reports 566 (2001), under customary international law grounded on opinio juris (Doc. 157, p. 40-41), and by treaty under the 2000 Sai-Clinton agreement (Id., p. 37-39). These are contemporary determinations made by the executive branch of the United States that conclusively binds this Court and the Plaintiff Students for Fair Admissions pursuant to Jones.

The amici argued that the Court misapplied the legal standard set by the U.S. Supreme Court in United States v. Jones as if the executive branch did not recognize the Hawaiian Kingdom as an independent State and sovereign over the Hawaiian Islands. Because the U.S. executive made these determinations of the Hawaiian Kingdom as an independent State since the nineteenth century it is not a political question, and that such determinations are binding on the Court and Students for Fair Admissions because the plaintiff are citizens of the United States. In its Order the Court disregarded the actions taken by the executive branch as if it never occurred. Thus, the Court is wrongly claiming it is still a political question as to who the sovereign over the Hawaiian Islands is.

In its Order, the Court also claims that it is “bound to accept the lawfulness of the government of the United States and the applicability of its laws” in the State of Hawai‘i. The amici assert that U.S. laws, which includes the law establishing the State of Hawai‘i in 1959, have no effect outside of the United States, as stated by the U.S. Supreme Court in two cases.

In United States v. Curtiss-Wright Corp., the Supreme Court stated, “Neither the [federal] Constitution nor the [federal] laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” In The Apollon, it stated, “The laws of no nation can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.”

The amici state that imposing U.S. laws in the Hawaiian Kingdom is a violation of international humanitarian law and the law of occupation, amounting to the war crime of usurpation of sovereignty during occupation.

The motion also critiques the Court’s disregard of the Lorenzo principle, which places the burden on defendants to prove the continued existence of the Hawaiian Kingdom. In 2014, the State of Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, stated:

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the Kingdom of Hawai‘i “exists as a state in accordance with recognized attributes of a state’s sovereign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.

Amici, show that this legal standard has applied to all State of Hawai‘i courts for the past thirty-two years and applies to the U.S. District Courts in Hawai‘i for the past twenty-four years. Amici provided sufficient factual and legal evidence of the Kingdom’s continued existence, and that the Court erred by disregarding the binding nature of the Lorenzo principle. The amici stated:

Neither did the State of Hawai‘i Intermediate Court of Appeals in Lorenzo, the State of Hawai‘i Supreme Court in Armitage, nor did Judge Ezra in United States v. Goo, invoke Jones. For the Court now to invoke Jones is a blatant manifest error of law that runs counter to the Lorenzo principle that has bound U.S. District Courts in Hawai‘i for the past 24 years.

Under international law, there is a legal principle of the presumption of State continuity, even under occupation. In its motion that amici state:

“[t]here is a presumption that the State continues to exist, with its rights and obligations […] despite a period in which there is no, or no effective, government,” and that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Judge Crawford further points out that “the presumption—in practice a strong one—is in favour of the continuance, and against the extinction, of an established state.” See James Crawford, The Creation of States in International Law 417 (1979). Consequently, “[i]f one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States.”

Consequently, Lorenzo and Armitage erred when it placed the burden on the defendant because under international law that burden is placed on the Plaintiff or the Judge who oppose that continuity to provide rebuttable evidence that the Hawaiian Kingdom has ceased to exist as a State under international law. Failure to provide rebuttable evidence the presumption of Hawaiian State continuity remains. By disregarding the facts and international law, the Court committed manifest error of law by not properly applying the Lorenzo principle and providing no rebuttable evidence as to the presumption of Hawaiian State continuity and the evidence provided by the amici curiae in its brief.

These arguments, by the amici, collectively challenge the court’s jurisdiction and the application of U.S. law in Hawai‘i, grounding their claims in both U.S. and international law, and emphasizing the ongoing legal status of the Hawaiian Kingdom. The amici conclude its motion with:

Under international humanitarian law and the law of occupation, the Court is obligated to transform itself into an Article II occupation court so that it can administer Hawaiian Kingdom law that protect the rights of the Defendant Kamehameha Schools, unless the Court can provide rebuttable evidence that the Hawaiian Kingdom is not the de jure sovereign over the Hawaiian Islands, which it has not done. Until there is rebuttable evidence, this Court IS situated within the territorial jurisdiction of the Hawaiian Kingdom and NOT within the territorial jurisdiction of the United States.

The burden is on the Court, pursuant to Curtiss-Wright Corp., to provide evidence that the Hawaiian Kingdom ceases to exist as a State, under international law, by reference to “treaties, international understandings and compacts, and the principles of international law.” And Curtiss-Wright Corp. precludes the Court from referencing “the [federal] Constitution [or] the [federal] laws passed in pursuance of it,” because it has no “force in foreign territory.” In its Order denying amici curiae’s motion for leave to file amici curiae brief, the Court could have, sua sponte, provided rebuttable evidence as to the presumption of Hawaiian State continuity and evidence provided in the amici curiae’s brief, but it did not.

Therefore, the Court’s willful act not to transform into an Article II occupation court would be a violation of international humanitarian law and the law of occupation, and, consequently, would constitute the commission of the war crimes of usurpation of sovereignty during occupation and deprivation of fair and regular trial, thereby making the Defendant Kamehameha Schools a war crime victim. Under international law, the Council of Regency, as the interim government of the Hawaiian Kingdom, has a duty and obligation to investigate war crimes committed within Hawaiian territory. See David Keanu Sai, “All States have a Responsibility to Protect their Population from War Crimes—Usurpation of Sovereignty During Military Occupation of the Hawaiian Islands,” 6(2) International Review of Contemporary Law 72-81 (2024).

AS AN OCCUPIED STATE, HAWAI‘I WAS NEVER A PART OF THE UNITED STATES—Hawaiian Council of Regency and 67 Scholars and Academics from 11 Countries file Amici Brief with U.S. District Court in Hawai‘i in Support of the Kamehameha Schools

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Students for Fair Admissions filed a federal lawsuit in October 2025 challenging the long-standing admissions policy of Kamehameha Schools in Hawaiʻi that grants enrollment preference to pure and part aboriginal Hawaiian students. The Kamehameha Schools is a private estate established by the probate court of the Hawaiian Kingdom in 1885 under the last will and testament of High Chiefess Bernice Pauahi Bishop. The admission policy was the intent of High Chiefess Mrs. Bishop that began in 1887.

The Hawaiian Kingdom Council of Regency, the restored government of the Hawaiian Kingdom, along with 66 scholars and academics from 11 countries, have filed an amici brief in support of the defendant Kamehameha Schools.

Amicus curiae is Latin for friend of the court. If there is more than one person, the filing is called an amici curiae or friends of the court. In the American court system, an amici curiae are individuals who are not a party to the case but have a particular expertise that can assist the judge in making a consequential decision. Thus, they are called friends of the court. These kinds of briefs are important because they provide expert knowledge, highlight the broader real world consequences of a potential ruling, and help judges make fully informed decisions.

Minister Dr. David Keanu Sai and Professor Federico Lenzerini authored the amici brief. Minister Dr. Sai is Chairman of the Council of Regency and is a Senior Lecturer in Political Science and Hawaiian Studies at the University of Hawai‘i Windward Community College and an affiliate faculty at the University of Hawai‘i at Mānoa College of Education graduate program. Dr. Sai is also a recognized scholar with his recent publication by Oxford University Press “Hawai‘i’s Sovereignty and Survival in the Age of Empire.” Professor Lenzerini is a full Professor of International Law, Human Rights and International Organization, at the University of Siena, Italy, Department of Political and International Sciences.

An additional 66 amici with doctoral degrees joined in on the brief. Under the heading of “Interests of Amici Curiae,” it states,

Amici curiae, Minister Dr. David Keanu Sai, Ph.D., and Professor Federico Lenzerini, Ph.D., international scholars whose views are represented in this brief, along with attesting amici curiae Professors Prabhakar Singh, Ph.D., and Alfred de Zayas, Ph.D., have expertise in public international law, international human rights, international humanitarian law, and international norms regarding statehood and sovereignty, self-determination and the rule of law. The remaining amici have joined solely representing themselves as doctoral degree recipients that understand the highest level of academic and legal research, and attest the amici brief to be factual and true.  Amici are from eleven countries—France, Germany, Hawaiian Kingdom, India, Italy, Japan, Palestine, Philippines, Solomon Islands, Switzerland, and the United States. All amici have an interest in ensuring an informed interpretation by the Court of the consequences that international humanitarian law, the law of occupation, and international criminal law have on its jurisdiction.

The amici states that U.S. federal courts (Article III courts) lack jurisdiction in Hawaiian territory under international law, unless acting as Article II occupation courts during military occupation. International law, including treaties and customary law must be enforced by U.S. courts established in foreign territory that is under an American occupation. The Hawaiian Kingdom is an occupied State.

Article III courts are referred to as the third branch of government in the U.S. Constitution. Article II occupation courts are referred to the second branch of government called the executive branch that stems from the President’s authority over U.S. forces in occupied territories. Article I courts are referred to as the first branch of government, which are courts established by the Congress such as bankruptcy courts.

The amici state that the Hawaiian Kingdom was recognized as an independent State in the nineteenth century by the U.S. and other nations. The 1893 overthrow of the government of the Hawaiian Kingdom by U.S. forces is described as illegal and an act of war, with no valid treaty of cession transferring sovereignty to the U.S. Consequently, U.S. congressional acts, such as the “annexation resolution” in 1898, Hawai‘i territorial status in 1900, and Hawai‘i statehood in 1959, have no legal effect outside U.S. territory and do not lawfully transfer U.S. sovereignty over the Hawaiian Islands. Amici states that international law presumes the continued existence of an independent State even if its government is militarily overthrown or absent.

The amici explain that what was overthrown, albeit illegally, was the government of the Hawaiian Kingdom and not the Hawaiian Kingdom as a State. This is why when the Iraqi government was militarily overthrown by U.S. forces in April of 2003, the Iraqi State and its sovereignty continued to exist during the Second Gulf War, widely known as the Iraq War. During the American occupation, Iraqi sovereignty and laws, not American sovereignty and laws, continued to be enforced by the American led Coalition Provisional Authority (CPA). The status of the CPA was a provisional government under U.S. military occupation. According to paragraph 353 of U.S. Army Field Manual 27-10:

Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional. On the other hand, subjugation or conquest implies transfer of sovereignty, which generally takes the form of annexation and is normally affected by a treaty of peace.

The amici state, in the case of the illegal overthrow of the Hawaiian Kingdom government on January 17, 1893, that U.S. forces did not administer Hawaiian Kingdom law but rather allowed the provisional government to pretend to be a government who created draconian laws. President Cleveland branded the provisional government as a puppet of the United States. On December 18, 1893, the President stated to the Congress that the “provisional government owes its existence to an armed invasion by the United States.”

Five years later, the United States Congress passed a joint resolution purporting to have unilaterally annexed the Hawaiian Islands during the Spanish-American War. Since 1898, the United States began to unlawfully impose American laws over the territory of the Hawaiian Kingdom in violation of international law, Hawaiian Kingdom law, the law of occupation, and U.S. law.

The amici also draw attention to a legal opinion by the Department of Justice’s Office of Legal Counsel in 1988, that concluded Congress did not have the authority to annex the Hawaiian Islands, being a foreign country, by enacting a joint resolution. The legal opinion also stated that 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.” There has never been any treaty of cession of the Hawaiian Kingdom’s sovereignty and territory to the United States.

The amici states that in 1997, a Council of Regency was established under the Hawaiian Constitution to serve as the acting government in the absence of a monarch. Amici further affirm that the Council of Regency has legitimate authority to represent the Hawaiian Kingdom domestically and internationally. And that according to international law, under the 1978 Vienna Convention on Succession of States in respect of Treaties, the Hawaiian Kingdom currently has treaties with 92 Member States of the United Nations, of which 12 treaties are with the original States, and 80 treaties are with their successor States.

The amici also draw attention to an international arbitration case that came before the Permanent Court of Arbitration, The Hague, Netherlands, from 1999-2001. Before the arbitration proceedings began, the Permanent Court recognized the Hawaiian Kingdom as an independent State for the purposes of the Larsen v. Hawaiian Kingdom case (1999-2001), and the U.S. entered into an executive agreement (the 2000 Sai-Clinton agreement) regarding access to case records. Under international law and U.S. law, an executive agreement is a treaty.

The Permanent Court’s recognition and the lack of objection from 129 Member States of the Permanent Court, to include the United States, was presented as evidence of these States’ recognition of the Hawaiian Kingdom’s continued legal existence and the Council of Regency as its government. Together with the Hawaiian Kingdom treaty partners and their successor States, 185 of these States are also Members of the United Nations that recognize the Hawaiian Kingdom’s continued existence by treaties and customary international law. The current membership of the United Nations is 193 States.

The amici bring to the attention of the Court the Lorenzo principle that has been in effect since 2002. In the Federal courts in Hawai‘i, the Lorenzo principle sets an evidentiary standard for those claiming the federal court lack’s jurisdiction because of the continued existence of the Hawaiian Kingdom. The Lorenzo principle stems from a 1994 State of Hawai‘i Appellate decision in State of Hawai‘i v. Lorenzo that set that evidentiary burden.

In 2014, the Supreme Court, in State of Hawai‘i v. Armitage, clarified the evidentiary burden that Lorenzo placed upon defendants. The Supreme Court stated, “Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the Kingdom of Hawai‘i ‘exists as a state in accordance with recognized attributes of a state’s sovereign nature,’ and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.” The amici state that they have met the evidentiary burden, under the Lorenzo principle, proving the Hawaiian Kingdom continues to exist as a State under international law.

Amici state that the imposition of U.S. laws and administrative policies in Hawai‘i is the war crime of usurpation of sovereignty during occupation under international law. Denial of a fair and regular trial to protected persons, like Kamehameha Schools, in occupied territory is also described by the amici as a grave breach of the Geneva Conventions, which is also a war crime.

The amici urge the Court to recognize U.S. obligations under international law and to transform itself into an Article II occupation court, rather than remaining as an Article III court, when sitting in the territory of the Hawaiian Kingdom. Amici further state that for the Court not to comply with international law, war crimes would be committed. In its closing, the amici state:

For the foregoing reasons, amici request that the Court consider U.S. obligations under international law when sitting in the territory of an occupied State, in evaluating the prolonged occupation of the Hawaiian Kingdom since 1893. The amici urge the Court to also evaluate the amici curiae brief filed by the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protector Legal Collective, which is enclosed herein as Exhibit 2, so as to enhance its own understanding of why the Court must transform itself from an Article III court to an Article II occupation court.

The filed amici curiae brief is available online.

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