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Newcomb: The Kamehameha Schools issue in Hawaii

The Kamehameha Schools in Hawaii were founded and their admission policy created on the basis of the will of Bernice Pauahi Bishop, a will that was executed and signed in 1883, a year before her death. At that time, the Kingdom of Hawaii was the internationally recognized government in Hawaii, and the Hawaiian monarchy was obviously still in power. The terms of Princess Pauahi's will were perfectly legal and legitimate within the legal and political system existing in Hawaii.

In 2003, a lawsuit, John Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, was filed on behalf of an anonymous non-Hawaiian seventh-grade student challenging the Hawaiian-only admission policy of the Kamehameha Schools. The lawsuit challenged that the Kamehameha Schools' admission policy is ''race-based'' and therefore illegal on the basis of the 14th Amendment of the U.S. Constitution.

In November 2003, a U.S. District Court judge upheld the Kamehameha Schools' admission policy, holding that a ''race-consciousness'' policy is a legitimate means of addressing economic difficulties and past injustices suffered by Hawaiians. However, a panel of the Ninth Circuit Court of Appeals held in favor of the non-Hawaiian plaintiff and found the Kamehameha Schools admission policy unlawful on the basis of the civil rights laws of the United States.

On Dec. 6, 2006, the Ninth Circuit Court of Appeals reversed its earlier ruling by upholding the Kamehameha Schools' admission policy. A majority of judges on the Appeals Court agreed that the Kamehameha admissions policy, which only allows Native Hawaiians to attend the Kamehameha Schools, is permissible under U.S. law. Four of the 15 judges on the Ninth Circuit Court of Appeals dissented, and the case will most likely to be appealed to the U.S. Supreme Court.

In its reversal of the earlier 9th Circuit ruling, under the heading ''Historical Context,'' Judge Susan Graber quoted from the Education portion of the U.S. Code, Title 20, Section 7512: ''In 1893, the sovereign, independent, internationally recognized and indigenous government of Hawaii, the Kingdom of Hawaii, was overthrown by a small group of non-Hawaiians including the United States Minister, a United States naval representative and armed naval forces of the United States.'' Then, citing Section 7512 (6), Graber wrote, ''The United States annexed Hawaii not long afterward.''

The problem with Graber's mention of annexation is that it is legally and factually false. The Newlands Resolution, passed on July 7, 1898, failed to effect any legal annexation of Hawaii to the United States pursuant to the U.S. Constitution or international law. This is in part because the U.S. Constitution has no provision that enables the U.S. government to annex a foreign territory to the United States by joint resolution, which is an expression of the joint opinion of both houses of Congress.

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Furthermore, according to international law, an underlying treaty of cession is needed in order to transfer lands from one nation to another. The proposed treaty between the fraudulent ''Republic of Hawaii'' and the United States was never voted on in the Senate because the proponents of annexation knew they did not have the two-thirds majority in the Senate needed for treaty ratification. This was in part because Kanaka Maoli representatives successfully delivered to Congress tens of thousands of Kanaka Maoli signatures opposing annexation and advocating a restoration of the legitimate government of Hawaii. Pro-annexationists were able to get the terms of the treaty rewritten and passed in the form of a joint resolution to make it seem as if annexation had occurred when in fact it had not.

The U.S. government has officially admitted to its involvement in the 1893 illegal subversion of the government of Hawaii - President Grover Cleveland admitted this - and so did the congressionally approved ''Apology Bill'' signed by President Bill Clinton in 1993. Thus, it is ridiculous for the legitimacy of the Kamehameha Schools' admission policy to be evaluated on the basis of the laws of the very country responsible for those illegal and criminal actions in 1893 against the Kanaka Maoli and their legitimate constitutional Hawaiian government in 1893.

As gratifying as it is for the supporters of the Kamehameha Schools to have won their 9th Circuit Court of Appeals en banc review, there is the very real possibility that the arguments presented by the 9th Circuit dissenters might be used by a majority of justices on the U.S. Supreme Court to rule against the Kamehameha Schools' admission policy. It is extremely unfortunate that the attorneys for the Kamehameha Schools did not premise their legal strategy on a correction of the erroneous historical presumption of annexation.

Given that the annexation of Hawaii never legally occurred, it makes no sense for the attorneys representing the Kamehameha Schools and the Bishop Estate to have allowed the wrongful presumption of annexation to stand uncontested. There is ample historical evidence that the attorneys could have used to show that the supposed ''fact'' of annexation is nothing other than a long-standing fiction (lie) perpetuated by the United States to the detriment of the Kanaka Maoli.

Because annexation did not occur, Princess Pauahi's will and the Kamehameha Schools' Hawaiian-only admission policy ought to be interpreted within the legal and political context existing in Hawaii at the time that her will was executed and signed in 1883, rather than within the context of the laws and political system of the United States. If the Supreme Court ultimately reverses the 9th Circuit's en banc ruling, the lie of annexation will have once again been used to the detriment of the Kanaka Maoli. Such a ruling would provide yet another example of how the United States uses to its advantage its admitted involvement in the illegal acts that resulted in the subversion of the Kingdom of Hawaii by forcing Queen Liliuokalani's to abdicate her throne in her effort to avoid bloodshed.

Given that the context and purpose of Princess Pauahi's will was to benefit the people of her nation, it is more correct to say that the Kamehameha Schools' Hawaiian-only admission policy is politically grounded and based on nationality rather than race, namely, the originally and rightfully free Kanaka Maoli Nation of Hawaii.

Steven Newcomb is Indigenous Law Research Coordinator at the Sycuan Education Department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute and a columnist for Indian Country Today.