Were the lands stolen?
Do the ceded lands rightfully belong to kanaka maoli alone?
(c) Copyright 2000 - 2002 Kenneth R. Conklin, Ph.D. All rights reserved
Sovereignty activists claim that millions of acres of land were stolen from kanaka maoli as a result of the overthrow, annexation, and statehood. They claim that the ceded lands rightfully belong to kanaka maoli alone, and that the federal and state governments using those ceded lands owe rent to the kanaka maoli people. But these claims are false.
In ancient times, nobody owned land. Chiefs controlled the use of the land in the areas where they ruled. Chiefs appointed konohiki or ali'i kalai moku who decided which commoners would be allowed to live on which pieces of land, and what crops they would cultivate. When a high chief defeated another high chief in battle, the victorious chief took control of all the lands of the defeated chief, and redistributed all the land in whatever manner he wished. Commoners were required to give a portion of their harvest directly to the chief, and were also required to give several days of labor each month to work on the chief's land or on whatever communal projects the chief might assign, such as cleaning stream-beds or gathering sandalwood for foreign trade.
As Kamehameha the Great won victory after victory, he redistributed the land to people who then owed him their loyalty and their labor. Eventually, Kamehameha came to control all the islands, and had absolute power to distribute the lands in any way he wished. When he died, his successors also had the power to redistribute the land, but to avoid causing trouble or rebellion, for the most part they allowed their subordinate chiefs to retain control of the lands they had controlled previously; and most chiefs allowed commoners to remain on the lands where they had been working or living.
As foreigners came to the islands and wanted to build expensive homes and make large investments in the cultivation of land, they were reluctant for fear that their investments could at any time be taken at the whim of a king or chief. Finally, in 1848, Kauikeaouli Kamehameha III decided that he should abandon the traditional system of land control in favor of a Western system of private land ownership with written and recorded land titles. He did this partly to encourage long-term investment in land development for agriculture and industry, and partly to ensure that even if the king were to fall on hard times or lose control to foreign powers, the land would continue to be controlled by the people who were living and working on it.
In the Mahele of 1848, the king set aside some lands as crown lands, to be kept by the king to provide places for the king to live and income to support the king. He also set aside some lands as government lands, to be used for schools, harbors, roads, government buildings, and income to support the government. He then established a system of dividing up the rest of the lands among the chiefs, and he provided a method whereby commoners who were cultivating or living on the land newly deeded to a chief could establish their title to own that portion of the land for themselves apart from their chief. Once land titles were properly recorded, chiefs and commoners could then buy or sell land; and before long foreigners were also allowed to buy and sell land.
As time went by, foreigners, or foreign-born citizens of the Kingdom, came to own large amounts of land. In the meantime, the kings sometimes sold crown lands or pledged them as security for loans to raise money to support lavish lifestyles. Eventually the legislature raised money to pay off those loans in order to keep the crown lands unencumbered. The crown lands did not belong to a king personally, but rather they belonged to the office of the sovereignty, as demonstrated by the fact that when a monarch died, the crown lands did not pass to his personal heirs but rather to the succeeding monarch. Thus, when the monarchy was overthrown, the crown lands came to be regarded as government lands. This principle was confirmed in a lawsuit in 1910, in which the ex-queen Lili'uokalani sued the United States in the U.S. Court of Claims, saying that she deserved compensation for "her" crown lands which had been ceded to the United States at the time of annexation; but the court ruled against her and the case was never appealed higher. The court noted that the crown lands had never been the private property of the monarch but had always been used to support the office of the sovereignty, and that with the overthrow of the monarchy, the sovereignty became the provisional government, then the republic, and then the lands were ceded to the United States. Thus, the court said, the crown lands became essentially indistinguishable from the government lands. See Lili'uokalani v. United States, 45 Ct Cl. 418, 1910.
During the Kingdom period, from the Mahele of 1848 to the overthrow of 1893, the government lands were owned by the government as trustee for the joint ownership by the entire citizenry of the Kingdom, for the use and benefit of all residents regardless of race. And following the Legislature's bailout of the Crown lands in 1865, the Crown lands were also owned by the government to provide revenue to support office of head of state. By the time of the overthrow of 1893, 60% of the population had zero kanaka maoli blood, including large numbers of foreign-born naturalized subjects (citizens) of the Kingdom. And following the overthrow, the crown lands and government lands remained under the ownership of the government (now the Republic of Hawai'i) on behalf of all the citizens and residents of Hawai'i, most of whom were non-kanaka maoli. By the time the first U.S. Census was conducted in 1900, only 26% of the population had any native blood.
At the time of annexation in 1898, and the operational rules set forth in the Organic Act of 1900, all the government and crown lands of Hawai'i were ceded to the control of the United States. Thus these government and crown lands became known as the ceded lands. This is the "theft" of "kanaka maoli lands" that sovereignty activists complain about. But of course they were not "kanaka maoli" lands, because they were government and crown lands held by the government on behalf of all the people of Hawai'i (not just kanaka maoli, who were only 26% of the population at that point). And the annexation documents and organic act made clear that the transfer of ownership of the ceded lands to the United States was not for the purpose of enriching the United States, but that these lands would continue to be used for public purposes to benefit all the people of Hawai'i. Some of the lands eventually became set aside for preservation as U.S. national parks; some lands were set aside for use by U.S. military forces (protecting the people of Hawai'i as well as the rest of the United States), and most of the ceded lands were simply held until 1959 when Hawai'i became a state and all the non-military and non-park ceded lands were then ceded back to the newly created State of Hawai'i.
The government (and crown) lands from the Kingdom remain government lands today, owned by government (U.S. and State of Hawai'i) on behalf of all the citizens of Hawai'i and for the benefit of all residents. These lands were not stolen. And from the time they were first set aside in the Mahele of 1848, they were never for kanaka maoli alone.
During the 1920's, in the territorial period, some of the ceded lands were set aside by the United States government for Hawaiian Homestead Lands; that is, lands which were exclusively for kanaka maoli of 50% or more blood quantum to build homes and cultivate. At statehood, the State of Hawai'i accepted the responsibility of administering these lands. Unfortunately, the state has not done much better than the U.S. government did in placing kanaka maoli into homes on these lands. The good intentions of the U.S. and state governments have fallen woefully short of accomplishment, partly because of lack of funds to build infrastructure for roads, water, and electricity in remote areas. Recently some kanaka maoli have agreed to take homestead lots in areas which are without roads or other infrastructure, and they will meet their own needs in their own ways.
The bulk of the ceded lands remain in the control of the State of Hawai'i. Some of these lands are leased to businesses, which produce lease rent or income for the state. According to the joint resolution of annexation in 1898, and the organic act of 1900 implementing the legal rules for the Territory of Hawai'i, all revenue from the ceded lands must be used to benefit the residents of Hawai'i (as opposed to the revenue going into the coffers of the United States).
At the time of statehood in 1959, the State of Hawai'i took responsibility for administering the ceded lands. To illustrate the purposes for which revenue from the ceded lands could be used, on behalf of all the people of Hawai'i, five purposes were listed. One of those purposes was public education; and for the twenty years 1959-1979, all the ceded land revenues were given to the state Department of Education to support the public schools. But as a result of a constitutional convention in 1978, a new state Office of Hawaiian Affairs (OHA) was created, to help provide and coordinate special programs to help kanaka maoli. Since there were five enumerated purposes for the use of ceded land revenues, and one of those five was to provide for the betterment of kanaka maoli, the legislature decided that one-fifth (20%) of all ceded land revenues should be given to OHA to be used for native Hawaiians of 50% or more blood quantum. In addition, the state legislature makes an annual appropriation of funds for OHA which OHA can use to benefit kanaka maoli of less than 50% blood quantum.
However, in recent years OHA has sued the State of Hawai'i, claiming that it has not received its 20% of ceded land revenues. One lawsuit said that since a small portion of an airport runway sits on ceded land, therefore 100% of all airport revenues, including the sales of the duty-free shops located in Waikiki (which deliver purchased goods directly to departing airplanes), should be counted in determining the 20% of ceded land revenues that belong to OHA. And apparently "revenues" means gross revenues, not net revenues after expenses. So no allowance is made for the tremendous expenses of operating the airport or other ceded land activities. For example, some welfare housing and community hospitals sit on ceded lands. It doesn't matter that these "businesses" operate at a loss to serve welfare clients, among whom kanaka maoli are over-represented. Every dollar collected in rent in welfare housing, and every dollar collected from insurance companies or state welfare agencies to pay hospital bills, has 20 cents taken out and sent to OHA, even though the housing and hospitals have tremendous costs and run at a deficit. The issue of ceded land revenues, and how much is owed to OHA, has been in the courts for years. The courts will have to straighten out the mess, unless OHA and the State can come to an agreement.
The absurdity of the situation can easily be seen by imagining the following: since there were five enumerated purposes for the revenues from ceded lands, which is why OHA gets 20% (one-fifth), then just imagine that each of the other purposes also files a lawsuit to collect its 20% of ceded land revenues. That would mean that the public schools should get the same number of dollars that OHA gets from ceded land revenues, including "back rent" and interest. And the public parks should also get its 20% share. Etc. The result would be that more than the entire budget of the state would go to just those five purposes alone. The reason is that the 20% is calculated on gross revenue rather than net revenue (after expenses).
Another way of looking at it is this: If kanaka maoli demand 20% of gross ceded land revenues be given to OHA, then it would also be fair to subtract from that all the money kanaka maoli receive in other state benefits such as public education (well over 20% of all public school children are kanaka maoli), welfare (well over 20% of welfare recipients are kanaka maoli), roads, airports, and harbors (kanaka maoli drive, fly, and benefit from shipping), etc.
For more on the ceded lands issue, see the website: http://aloha4all.org
For much more analysis of land issues, including legal briefs related to the ceded lands lawsuit and a legal analysis of the PASH decision, see: http://www.angelfire.com/hi2/hawaiiansovereignty/land.html