Much discussion has taken place since the 9th U.S. Circuit Court of Appeals issued its decision in the Kamehameha Schools case: What is the mission of the schools? What do the schools symbolize for Native Hawaiians? Opinions have been expressed about the lack of justice in the court's decision, what the Civil Rights Act is about, what Kamehameha Schools is about.

From a perspective of justice — for the law does not necessarily achieve justice — the 9th Circuit decision is based on a fundamental flaw, as is the claim against the schools.

The issue here is one of international human rights, not domestic civil rights.

To understand section 1981 of the Civil Rights Act of 1866, one must understand the history of African-Americans in the United States: slavery, segregation, denial of the right to vote. To understand the evolution of this statute and its application to other minority groups in the United States, one must understand the history of Asian, Italian, Muslim immigrants and others.

To understand and appreciate their collective histories is to understand that civil rights laws are meant to provide for the full participation and meaningful access of individual U.S. citizens to key spheres of public and private life, such as voting, employment, housing and education.

The history of Hawai'i and Native Hawaiians is not about the denial of civil rights guaranteed under the U.S. Constitution to all U.S. citizens. The history of Hawai'i and Native Hawaiians is about colonization, the theft of land and culture, the subjugation of the indigenous people of these Islands who once lived in an internationally recognized sovereign nation. These are human rights issues — the collective right of the Native Hawaiian people to cultural and political self-determination and development.

There is a world of difference between civil rights and human rights, and an analysis under section 1981 that does not account for this difference produces an unjust result.

U.S. District Court of Hawai'i Judge Alan Kay, whose decision was reversed, used the same civil rights framework and applicable case precedence considered by the 9th Circuit to reach the opposite conclusion, that the Kamehameha Schools' admissions policy does not violate section 1981 of the Civil Rights Act.

Unlike the 9th Circuit, Judge Kay found that a "legitimate non-discriminatory purpose" under section 1981 can include an affirmative response to colonization, which is the underlying purpose of Kamehameha Schools' admissions policy.

This is the essential promise of the legal system and the reason context matters. Statutes and case law are applied in light of the facts of each case in order to achieve a just resolution.

As the 9th Circuit's decision illustrates, this promise is not always fulfilled. The application of section 1981 in the context of employment discrimination and remedial affirmative action programs is, and must be, inherently different from the application of section 1981 to the admissions policy of a wholly private school established for the education of an indigenous people.

Judge Kay considered Hawai'i's history and the United States' role in colonizing these Islands, which led to the illegal overthrow of the kingdom of Hawai'i. He recognized that, in applying a remedial, affirmative action framework to Kamehameha Schools' admissions policy, a more nuanced application of the law was required.

Incorporating the context of colonization and its ramifications for the Native Hawaiian people enabled Judge Kay's section 1981 affirmative action analysis to conclude that the "legitimate non-discriminatory purpose" required by section 1981 was satisfied and the admissions policy non-violative.

This case illustrates, as have countless other situations, that the law is flexible and ever-changing because it must be. Achieving justice in law means engaging in what may be an uncomfortable dialogue about the modern history of Hawai'i, about the United States' active pursuit of colonization in the 1800s in the Philippines, Puerto Rico, Hawai'i.

It means admitting that the practice of colonization involves the use of race and religion to support, justify and implement acts to conquer and systematically eliminate people of a different color, a different language, a different belief, a different culture. And, it means recognizing that colonialism remains active to this day.

The mission of Kamehameha Schools is to provide educational opportunities to Native Hawaiians so we can effectively respond to colonization, so we can preserve our cultural identity, so we can attain some self-determination over our culture and sovereignty over our lands.

Leaving non-Hawaiian attorneys, judges and U.S. courts to tell our history, to decide who we are and where our place is in our homeland gives them the opportunity to define us.

That is why this case demonstrates that we must be unwavering in our vigilance. Simply trusting that American laws and courts will operate to achieve justice leaves colonialism unchallenged. It accepts the denial of our human rights. Therefore, we must encourage each other, and the lawyers who represent us, to make bold and accurate arguments about the history of Hawai'i and its native people, and to not sacrifice this unique history to fit a legal framework that, ultimately, is inapplicable.

Shirley N. Garcia and R. Hokulei Lindsey are Native Hawaiian attorneys.