Dr. Keanu Sai on KITV Island Life Live television show to explain certain events that transpired after the filing of an amici curiae brief in support of the Kamehameha Schools on September 1, 2026, in the federal lawsuit initiated by Students for Fair Admissions.
On September 14, 2026, the attorney for the Amici Curiae was notified that Judge Micah Smith will sign an Order granting Amici’s Motion for Reconsideration of the Court’s Order denying Amici Curiae’s Brief in Support of the Kamehameha Schools. However, the filing of the signed Order is pending.
On PACER, which is Public Access to Court Electronic Records, Amici’s attorney was advised “that Document 160 MOTION for Reconsideration requires the judge’s signature. If the filing party has not already done so, please email in Microsoft Word format to the applicable chambers’ email address.” On PACER, Document 160 is identified as “MOTION for Reconsideration; Proposed Order Granting Amici Curiae’s Motion for Reconsideration; Certificate of Service.”
Included in the Amici’s Motion for Reconsideration was a Proposed Order Granting its Motion for Reconsideration.
Amici’s Proposed Order was a generic form of an Order, but it would appear that Judge Smith needed a copy of the Proposed Order in Microsoft Word format so that he is able to write in order to elaborate as to why he made the decision. In Orders, this is usually done under the heading of “Discussion.” A pdf file does not allow any altering of the document.
In Hawaiian Kingdom v. Biden, U.S. Magistrate Judge Rom Trader filed a three page Order granting permission for the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protector Legal Collective to file their brief as Amici or friends of the court. Their brief was cited by the Amici in the Kamehameha lawsuit because it explained the legal reasoning as to why the Federal Court must transform into an Article II occupation court to administer Hawaiian Kingdom laws.
Like the Amici in the Kamehameha lawsuit, the Amici in Hawaiian Kingdom v. Biden filed a generic Order granting permission to file their brief in support of the plaintiff Hawaiian Kingdom. Magistrate Judge Trader explained his reasoning to grant permission under the heading of “Discussion.”
According to the Federal Rules of Civil Procedure, reconsideration of a Court’s Order is allowed where the Judge committed a manifest error of law, which is a clear and undeniable mistake made during a legal proceeding that justifies a reversal of the Court’s decision. This type of error typically occurs when a judge disregards the established facts, applicable laws, or credible evidence in the case. Manifest errors are significant because they can fundamentally affect the outcome of a case.
The amici curiae comprise of sixty-eight scholars and academics, along with the Hawaiian Kingdom Council of Regency, 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. Four of the amici are scholars of international law.
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 Blackstone, the English common law rule of jus soli—any person born within British territory is a British subject by birth, is traced back to the feudal law of England based on allegiance to the King. Because allegiance was at the core of natural born citizenship, the common law rule carved out exceptions for those born within British territory whose parents held foreign allegiances such as foreign diplomats or enemy invaders.
On February 25, 1794, King Kamehameha I, showing his allegiance to King George III, ceded the Island Kingdom of Hawai‘i to the British King thereby establishing Hawai‘i as a British Protectorate. Since that date, Kamehameha I, his Chiefs and people were British subjects. According to Captain Vancouver, who was present at the ceremony, he stated the issues “being fully discussed, and thoroughly understood on both sides, the king repeated his former proposition, which was now unanimously approved of, and the whole party declared their consent by saying, that they were no longer Tanata no Owhyhee [Hawai‘i], (i.e.) the people of Owhyhee [Hawai‘i]; but Tanata no Britannee (i.e.) the people of Britain.”
As a result, English common law applied over the Kingdom of Hawai‘i, to include Kamehameha’s acquisition of the Island Kingdom of Maui 1795, and the Island Kingdom of Kaua‘i in 1810. Anyone born within Kamehameha’s kingdom were natural born British subjects.
When the Hawaiian Kingdom became an independent State on November 28, 1843, English common law no longer applied over Hawaiian territory because there was a new allegiance to be owed to King Kamehameha III, a constitutional monarch. Addressing Hawaiian citizenship, the Hawaiian Legislature enacted the Third Act of Kamehameha III in 1847:
All persons born within the jurisdiction of this kingdom, whether of alien foreigners, of naturalized or of native parents, and all persons born abroad of a parent native of this kingdom, and afterwards coming to reside in this kingdom, shall be deemed to owe native allegiance to His Majesty. As such persons shall be amendable to the laws of this kingdom as native subjects.
Natural born citizenship was codified by Hawaiian statute until the legislature enacted the 1859 Civil Code that repealed the Third Act of Kamehameha III. However, natural born citizenship survived by Hawaiian common law in 1856 in Naone v. Thurston, where the Supreme Court stated, “defendant in this case was born of foreign parentage, within the jurisdiction of this realm, and claims to be a Hawaiian subject by birth.” The Civil Code does not mention natural born, but rather Hawaiian citizenship by naturalization and letters patent of denization, which is dual citizenship.
On January 21, 1868, Ferdinand Hutchison, Hawaiian Minister of the Interior, stated the criteria for Hawaiian nationality. He announced it in the Hawaiian Government’s newspaper, The Hawaiian Gazette:
In the judgment of His Majesty’s government no one acquires citizenship in this Kingdom unless he is born here, or born abroad of Hawaiian parents (either native or naturalized) during their temporary absence from the Kingdom, or unless have been the subject of another power, he becomes the subject of this Kingdom by taking the oath of allegiance.
The “judgment of His Majesty’s government” firmly established the means by which a person acquires Hawaiian citizenship through being natural born—jus soli, born abroad of Hawaiian parents—jus sanguinis, naturalization, and denization. The latter two are by virtue of taking the oath of allegiance.
When U.S. troops unlawfully overthrew the government of the Hawaiian Kingdom, by an act of war, and began its prolonged occupation on January 17, 1893, sovereignty remained vested in the Hawaiian Kingdom. According to paragraph 353 of the U.S. Army Field Manual 27-10:
Being an incident of war [act of war], military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order [by administering the laws of the occupied State], indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein (See Geneva Convention, art. 47).
Consequently, allegiance to the Hawaiian Kingdom, under its domestic law, remained unaffected. Therefore, natural born citizenship of the Hawaiian Kingdom continued to apply to children born within Hawaiian territory except for those children born of diplomats and those children born of the population of the invader—United States citizens. In United States v. Wong Kim Ark, the U.S. Supreme Court explained:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
The last census done in the Hawaiian Kingdom in 1890 listed the entire population at 89,990. Here follows the breakdown by nationality:
According to the United States Census of the population in the Hawaiian Islands from 1900 to 1950, migration from the continental U.S. and its territories in fifty years exploded to 293,379. Here follows the breakdown by year:
On April 30, 1900, the U.S. Congress passed “An Act to Provide a Government for the Territory of Hawaii. Regarding U.S. nationals, section 4 of the 1900 Act stated that:
all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii. And all citizens of the United States resident in the Hawaiian Islands who were resident there on or since August twelfth, eighteen hundred and ninety-eight and all the citizens of the United States who shall hereafter reside in the Territory of Hawaii for one year shall be citizens of the Territory of Hawaii.
In addition to this Act, the Fourteenth Amendment of the United States Constitution also provided that individuals born in the Hawaiian Islands since 1900 would acquire U.S. citizenship. It states, in part, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Under these American municipal laws, the putative U.S. national population exploded in the Hawaiian Kingdom from a meager 1,928 out of a total population of 89,990, in 1890, to 423,174 out of a total population of 499,794 in 1950.
The migration of the American population into Hawaiian territory, to include Puerto Ricans and the Filipinos, having both become U.S. territory by the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain, constitutes the war crime of unlawful transfer of populations to the occupied territory. According to Professor Schabas, who authored a legal opinion on war crimes being committed in the Hawaiian Kingdom since January 17, 1893, “[b]elligerent occupation is a temporary situation and not the prelude to annexation. For this reason, the Occupying Power must not change the demographic, social and political situation in the territory it has occupied to the social and economic detriment of the population living in the occupied territory.”
The unlawful imposition of American laws within the territory of the Hawaiian Kingdom, under an American occupation, constitutes the war crime of usurpation of sovereignty during occupation, and, therefore, have no legal effect. According to Professor Schabas, the “crime of ‘usurpation of sovereignty’ was referred to by Judge Blair of the American Military Commission in a separate opinion in the ‘Justice Case:’ ‘This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.'”
Furthermore, the U.S. Supreme Court, in United States v. Curtiss-Wright Corp., stated, (“[n]either 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 inter-national law; and it also stated, in The Apollon, “[t]he 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.”
On July 4, 1894, the provisional government, which President Cleveland stated in his manifesto to the Congress on December 18, 1893, “owes its existence to an armed invasion by the United States,” changed its name to the so-called Republic of Hawai‘i. Thereafter, twenty countries violated their obligation of neutrality by recognizing the American puppet and consequently became parties to the war on the side of the United States. These countries spanned Europe, the Americas, and Asia. Customary international law in the nineteenth century required that countries had to have been made aware that a state of war existed between the United States and the Hawaiian Kingdom in order to trigger their obligation to be neutral or to become co-belligerents with the United States.
The publication of the President’s manifesto to the Congress on December 18, 1893, in The Alexandria Gazette would have satisfied awareness of the state of war by the Legations in Washington, D.C. He stated to the Congress:
And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.
“If a neutral neglects this obligation,” explains Professor Oppenheim, “he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.” The recognition by these countries was an attempt to provide de facto or diplomatic recognition of the American puppet in a state of war that the U.S. initiated. Of these countries, Austria-Hungary, Brazil, Chile, China, France, Mexico, Netherlands, Peru, Russia, and Spain maintained Legations accredited to the United States in Washington, D.C. in 1893, and, therefore, cannot claim they were unaware of the circumstances of the invasion and overthrow of the Hawaiian government. Under the law of neutrality, countries must refrain from siding with one belligerent to the detriment of the other belligerent. The Hawaiian Kingdom became a belligerent, under international law, as a consequence of the U.S. invasion.
The dates of the recognition are as follows—Austria/Hungary on January 1, 1895, Belgium on October 20, 1894, Brazil on September 29, 1894, Chile on September 26, 1894, China on September 12, 1894, France on August 31, 1894, Germany on October 4, 1894, Guatemala on September 30, 1894, Italy on September 23, 1894, Mexico on August 8, 1894, Netherlands on November 2, 1894, Peru on September 10, 1894, Portugal on December 17, 1894, Russia on August 26, 1894, Spain on November 26, 1894, Sweden/Norway on December 17, 1894, Switzerland on September 11, 1894, and the United Kingdom on September 19, 1894.
The recognition of the so-called Republic did not alter the status of the puppet regime but rather serves as the indisputable evidence that these countries violated their obligation to be neutral during a state of war and instead chose to become co-belligerents with the United States against the Hawaiian Kingdom. Diplomatic recognition of governments does not occur during a state of war between countries but rather only in a situation where revolutionaries within a country succeed in replacing the former government, thus becoming a de facto government by recognition of other countries.
These recognitions were made under the false pretense that the so-called Republic, being an American puppet, succeeded in a revolution and therefore was the new government of Hawai‘i. This narrative was refuted by the President’s manifesto, where he stated that the provisional government “was neither a government de facto nor de jure [because] it was not in such possession of the Government property and agencies as entitled it to recognition.” The insurgents’ control was by virtue of a foreign State’s intervention and not revolution. The co-belligerent States cannot deny this legal reality, notwithstanding their belligerent acts of recognizing the so-called Republic.
Despite the unlawful imposition of American laws, Hawaiian Kingdom laws continued to be in force throughout Hawaiian territory. This included Hawaiian natural born citizenship until the Council of Regency, by proclamation, repealed “the Hawaiian common law of native born or jus soli” on October 2, 2023. Another exception to acquiring Hawaiian natural born citizenship would be foreign populations that entered the territory of the Hawaiian Kingdom under United States immigration laws after 1898.
Consequently, the children born in the Hawaiian Kingdom of the populations of the co-belligerent States of Austria, Belgium, Brazil, Chile, China, France, Germany, Guatemala, Hungary, Italy, Mexico, Netherlands, Norway, Peru, Portugal, Russia, Spain, Sweden, Switzerland, and the United Kingdom, did not acquire Hawaiian nationality if they were born after the date of their country’s recognition of the so-called Republic of Hawai‘i.
All other children born of foreign parentage in the Hawaiian Kingdom prior to the United States imposition of its laws in 1898 are Hawaiian subjects. If children born of foreign parents that arrived in the Hawaiian Kingdom after 1898, under U.S. immigration laws, they acquire the citizenship of their parents and are not natural born Hawaiian subjects. If a person is a direct descendant of foreign parentage that arrived in the Hawaiian Kingdom before 1898 and born before the repealing of Hawaiian natural born citizenship on October 2, 2023, they would be natural born Hawaiian subjects.
Today, the attorney for the Amici Curiae filed a Supplemental Brief in Support of its Motion for Reconsideration of the Court’s Order denying Amici Curiae’s Brief in Support of the Kamehameha Schools.
The Supplemental Brief brings in new evidence not seen by the Court regarding the Larsen v. Hawaiian Kingdom case, which was at the center of oral arguments, in Nicaragua v. Germany, at the International Court of Justice (ICJ) from September 7-10, 2026.
On March 1, 2024, Nicaragua filed an Application instituting proceedings against Germany for alleged violations by Germany of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide and the Geneva Conventions of 1949 and their Additional Protocols, as well as “intransgressible principles of international humanitarian law and other peremptory norms of general international law” in relation to the Occupied Palestinian Territory, in particular the Gaza Strip.
In its Application, Nicaragua states that “[e]ach and every Contracting Party to the Genocide Convention has a duty under the Convention to do everything possible to prevent the commission of genocide” and that since October 2023, there has been “a recognised risk of genocide against the Palestinian people, directed first of all against the population of the Gaza Strip.”
Nicaragua further argues that by providing political, financial and military support to Israel and by defunding the United Nations Relief and Works Agency for Palestine Refugees in the Near East, “Germany is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide.”
The Application was accompanied by a request for the indication of provisional measures, in which Nicaragua asks the Court to indicate such measures as a matter of extreme urgency, pending the Court’s determination on the merits of the case, with respect to the “participation [of Germany] in the ongoing plausible genocide and serious breaches of international humanitarian law and other peremptory norms of general international law occurring in the Gaza Strip.”
Germany was seeking to have the ICJ dismiss Nicaragua’s case on jurisdictional grounds. Germany stated that because Israel is not a party to the case the ICJ does not have jurisdiction because Israel is a necessary third party based on the Monetary Gold principle that came before the ICJ in 1954. The Monetary Gold principle is a rule in international law that international courts cannot settle a dispute if doing so requires ruling on the legal interests of an absent third-party State that has not consented to the court’s jurisdiction.
The ICJ scheduled the first round of oral arguments for Germany on September 7, 2026, followed by Nicaragua on September 8. Second round of oral arguments was scheduled for Germany on September 9, followed by Nicaragua on September 10.
During the first round on September 8th, Nicaragua drew the Court’s attention to the arbitration award in Larsen v. Hawaiian Kingdom that was held at the Permanent Court of Arbitration from 1999-2001. Nicaragua was arguing that the Larsen award stated there is an exception to the Monetary Gold principle. According to the transcript Nicaragua stated:
But it is necessary to go further, Ladies and Gentlemen, you who are the judges of the court: In our court case it is no longer a question of the risks of genocide or of risks of grave violations of international humanitarian law or the right of humanity, including the right of the Palestinian people to decide by themselves. It is clear and already established that these risks have become concrete and that the responsibility of Israel is involved by reason of grave and persistent violations of numerous imperative norms of international law. This is in fact established, a “given.” Furthermore when even the principle of Monetary Gold, as Germany interpreted it, would be a stake in the current dispute (quod non [“which it is not”]), it cannot get into the way of you exercising your authority. The Court of Arbitration, which made a pronouncement in the case of Larsen v. Hawaiian Kingdom, presided by James Crawford, recalled very clearly within a different context: The principle of Monetary Gold does not apply as long as “the legal finding against an absent third party could be taken as a “given.”
In the second round on September 9th, Germany responded to Nicaragua’s argument that the Larsen case is an exception to the Monetary Gold principle. According to the transcript, Germany stated:
Ultimately, Nicaragua has not sought to challenge Germany’s point that Nicaragua’s Application and Memorial “are replete with assertions that Israel is in breach of multiple and fundamental norms of international law”, and instead Nicaragua seeks to turn this into a positive, its more strongly argued answer to Monetary Gold, which is the argument that Israel’s breaches can be taken as a “given”. The juridical underpinning of this argument is the decision of the Tribunal ⎯ and certainly a very distinguished Tribunal ⎯ in Larsen v. Hawaiian Kingdom. The dispute concerned alleged breach by Hawaii of its Treaty of Amity with the USA through the alleged unlawful imposition of US municipal law in Hawaii. Following its consideration of the Monetary Gold line of cases, with East Timor and Nauru being regarded as “particularly pertinent”, the Tribunal stated:
“11.23. . . . The Tribunal cannot rule on the lawfulness of the conduct of the respondent in the present case if the decision would entail or require, as a necessary foundation for the decision between the parties, an evaluation of the lawfulness of the conduct of the United States of America, or, indeed, the conduct of any other State which is not a party to the proceedings before the Tribunal. [You can see that is obviously borrowing the formulation from the East Timor case, picked up of course by this Court in Guyana v. Venezuela, and in many other cases.]
11.24. The Tribunal notes, for the sake of completeness, that there may well be exceptions to the Monetary Gold principle. For example, if the legal finding against an absent third party could be taken as given (for example, by reason of an authoritative decision of the Security Council on the point), the principle may well not apply. It is also possible that the principle does not apply where the finding involving an absent third party is merely a finding of fact, not entailing or requiring any legal assessment or qualification of that party’s conduct or legal position. [That is not our case, I note in passing, and Nicaragua has not suggested otherwise. The Tribunal continued:] In the present case, however, the parties did not seek to rely on any possible exception . . . ”
So, of course, the Tribunal did not dig any deeper into this possibility.
On September 10th, Nicaragua responded to Germany’s position regarding the Larsen case. According to the transcript, which is in French, but here is the translation into English, Nicaragua stated:
My contradictor is also coming back at me, in a rather longwinded way, concerning the subject of the argument by Nicaragua according to which, in order once more to take up the formulation of the passage pertinent to the ruling made in the case of Larsen v. Hawaiian Kingdom—to which he is in deep disagreement. For example, if the legal finding against an absent third party could be taken as given (for example, by reason of an authoritative decision of the Security Council on the point), the principle may well not apply.
Nicaragua pointed out that the Security Council did determine a legal finding that Israel is a belligerent State, a “given,” when it invaded Gaza in its Resolution 2803 (2025), Resolution 2735 (2024), and Resolution 2728 (2024), that determined Israel to be a belligerent State. In its oral argument, Nicaragua also provided a powerpoint slide showing the relevant two articles of the Larsen award.
The significance of these proceedings cannot be underestimated. First, the Larsen case is now being used as a precedent case where there are exceptions to the Monetary Gold principle. Second, it is drawing international attention to the American occupation of the Hawaiian Kingdom and the illegal imposition of American laws on a world’s stage the International Court of Justice.
It should be noted that when Germany, in its statement, stated to the ICJ that in Larsen v. Hawaiian Kingdom “The dispute concerned alleged breach by Hawaii of its Treaty of Amity with the USA through the alleged unlawful imposition of US municipal law in Hawaii,” it was stating an fact that American laws being imposed in the Hawaiian Kingdom is unlawful. Germany’s statement is from the case description at the Permanent Court of Arbitration’s website states:
Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.
Both Nicaragua and Germany are Contracting States of the Permanent Court of Arbitration that recognized the continued existence of the Hawaiian Kingdom as a State since the nineteenth century and the Council of Regency as its government. This fact was specifically noted in the Amici Curiae’s Motion for Leave to File Amici Curiae’s Brief.
Another particular importance is that William Schabas, Professor of International Law at Middlesex University, and Professor Emeritus of International Criminal Law and Human Rights, at Leiden University, is a member of Nicaragua’s legal team as Counsel.
In 2019, at the request of Dr. Keanu Sai, as Head of the Royal Commission of Inquiry, Professor Schabas wrote a Legal Opinion on War Crimes Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893. One of the war crimes he mentioned was the unlawful imposition of American laws within the territory of the Hawaiian Kingdom, which is the war crime of usurpation of sovereignty during occupation. Professor Schabas is cited in the Amici Brief.
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).
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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