Land and Sovereignty

By: Trustee Rowena Akana
February 3, 1999

No two words have so captured the attention of this archipelago’s residents as “land” and “sovereignty”. Despite developments since the 100-year anniversary of the 1893 illegal overthrow of the Hawaiian Monarchy, as well as the United States’ apology and admission of the illegality of the overthrow, many people do not grasp what either word means or will mean for their future.

The general goal of sovereignty advocates is the transfer of control of Hawaiian Home Lands and ceded lands directly to a native Hawaiian government. Currently, the state and federal government hold in trust about 1.2 million acres of land for the benefit of Hawaiians. Yet, the first people to these lands have seen very few benefits.

Hawaiian Home Lands are scattered tracts comprising about 197,075 acres, which Congress set aside in 1920 for native Hawaiian homesteaders. Ceded lands are the remains of an estimated 1.8 million acres of public, private and crown land illegally annexed by resolution from a provisional government to the United States in 1898.

Hawaiian land, once farmed communally, is now some of the most expensive real estate on Earth. Housing prices, driven up by mainland retirees and foreign speculators, are out of reach for Hawaiians living, working and raising families in the islands.

Hawaiian waters, once kept in ecological balance with humans through a complex kapu system, are now oversold to the highest bidder, or treated as a toilet for raw sewage.

Hawaiian culture, once a living history of genealogy, geography, and spirituality, was nearly obliterated by Calvinist missionaries and is usually obscured with tourist-pleasing luaus.

Today, 70-80,000 people (depending on the source) – of Hawaii’s more than one million residents are full-blooded Hawaiians. One fifth, or about 225,000 people claim some Hawaiian blood. Yet Hawaiians remain the poorest, sickest, least educated, worst housed, and most frequently imprisoned segment of Hawaii’s population.

Since Kamehameha the Great, foreigners have enjoyed some measure of control over Hawaiian land. The concept of land ownership was foreign to Hawaiians. How can you own what belongs to God? The king and his chief provided land grants to the people–some of them outsiders, who chose to grow large tracts of crops to be sold overseas, rather than to be eaten at home.

In 1825, when 12-year-old Kamehameha III ascended to the throne, the Council of Chiefs adopted the western practice of inheritance after the death of a king. However, foreigners, protective of their agricultural interest, sought more secure forms of land tenure. They and their governments applied considerable pressure on the young king.

In 1840, the year he drew up Hawaii’s first constitution, Kamehameha III granted the right to property by declaring that all land belonged to the chiefs and the people, with the king as trustee. In 1848, true ownership of land came to Hawaii, when the king accepted a land apportionment plan, called the Great Mahele, or division.

The Mahele completed the transition from a feudal redistribution land system to a fee simple land ownership system, by dividing the land among the king, government, chiefs and the people. The land was split into three parts: about 1 million acres of crown lands to which the king held title; 1.5 million acres of government lands for public use; and, the remaining 1.5 million of Konohiki lands set aside for individual ownership by the chiefs and the people.

The Mahele was an unmitigated disaster for the maka’ainana, the people of the land, or commoners. While the king intended to make available one-third of Hawaii’s lands to maka’ainana, they received much less than one percent of the total land. The maka’ainana’s land holdings and rights were further diluted in 1850, with the passage of additional legislation which authorized ownership and conveyance of the land, regardless of citizenship.

The stage was set for a massive land grab by Westerners. In the next half century, with a population no larger than 2,000, Westerners took control of most of Hawaii’s land, and manipulated the economy for their own profit.

Many Native Hawaiians pleaded with their last elected monarch, Queen Lili’uokalani, to protect the sovereignty of Hawaii. At the urging of her people, the queen attempted to regain some of the monarchy’s power, which had been lost during the reign of her predecessor and brother, King Kalakaua through the Bayonet Constitution.

Her efforts to change Hawaii’s Constitution and cabinet unnerved a group of the wealthiest American merchants and sugar planters. These men wanted to be part of the United States to avoid high import tariffs. So, backed by a contingent of 162 U.S. Marines, the businessmen imprisoned the queen, and took over the islands, including the acreage that was supposed to be available to the maka’ainana.

Despite Lili’uokalani’s steadfast belief that the United States government would honor its treaties with the Kingdom and reject the provisional government, Hawaii went from a sovereign nation to an American colony in five years. In 1898, under President William McKinley, Hawaii was annexed to the United States constellation, along with Puerto Rico, Guam and the Philippines.

President Grover Cleveland, who had opposed the coup, but failed to reverse it, wrote after leaving office: Hawaii is ours. But as look back upon the first steps in this miserable business, and as I contemplate the means to complete this outrage, I am ashamed of the whole affair.”

Meanwhile, the provisional government sold chunks of crown and Konohiki lands to fellow merchants and planters. When the islands were annexed illegally to the United States, Hawaii’s government acknowledged that this acreage (now 1.8 million acres) belonged to Native Hawaiians, and ceded it with the stipulation that it be held in trust for Native Hawaiians. The federal government summarily lopped off about 20 percent of the land for its own use, mostly for military bases and parks.

By 1920, the plight of the true inhabitants, Native Hawaiians, had become desperate. The population had dropped as much as 96 percent. Some scholars estimate that a one-time population of 1 million Hawaiians in pre-contact Hawaii had plummeted to 40,000.

However, a bill was being prepared that would allow Native Hawaiians to lease a small sliver of their former land. The Hawaiian Homes Commission Act began as a well meaning effort by Prince Jonah Kuhio, the Hawaiian territorial delegate to Congress, who saw urban slums and disease rapidly killing off Hawaiians, and hoped that returning Hawaiians to their aina, their agricultural land, could save them. In 1920, he said: “The Hawaiian race is passing, and if conditions continue to exist as they do today, this splendid race of people, my race, will pass from the face of this earth.”

No sooner did Prince Kuhio float his plan in Congress than it was co-opted by pineapple and sugar planters, who saw it as a way to secure their own uncertain futures. Their leases on 26,000 fertile acres were about to expire, and a general homestead law threatened to transfer their lucrative holdings to other hands.

So the planters struck a deal with territorial politicians: Get rid of general homesteading, allow us to keep our lands, and in exchange, you may allot 200,000 acres of “fourth class” lands to native Hawaiians for homestead. This land was arid, inaccessible, soilpoor, without infrastructure, and otherwise unfit for cultivation. Before long, Hawaiians abandoned agrarianism, and the bulk of homestead awards became simple house lots.
The sugar planters ensured that the Hawaiian Home Lands’ first executive was an ally. Its executive secretary was George Cooke, of Castle & Cooke, one of the Big Five plantation powers. The planters even pushed the 50 percent Hawaiian blood requirement, believing that interracial marriages would dilute the native population to extinction.

After statehood in 1959, responsibility for managing the homestead program was transferred from the federal government to the state Department of Hawaiian Home Lands (DHHL). Because the state failed to appropriate sufficient funding, until recently, the DHHL’s main source of revenue to manage and improve the land was income from general use leases granted non-Hawaiians on land “not immediately needed” for homestead. As a result, DHHL leased more land to non-Hawaiians than to Hawaiians.

For decades, the administration of the Hawaiian Home Lands trust went unquestioned. Subsequent investigations revealed mismanagement of the trust by both the federal and state governments. DHHL estimates that territorial and state governors issued between forty and sixty executive orders, which set aside Hawaiian Home Lands for military use. In 1978, a federal district court ruled that all governors’ executive orders were illegal.

In 1984, Governor Ariyoshi rescinded nearly thirty of these illegal acts, covering 30,000 acres. The Hawaii Attorney General also decreed that the U.S. Navy’s occupation of 1,400 acres of prime homelands near Honolulu was a “fundamental breach of trust”.

Rather than evicting the offending land users, which included state and federal agencies, the DHHL opted for monetary settlements totaling less than $10 million.

As of June 30,1997, only 6,428 homestead leases were awarded statewide, representing a mere 20.5 percent of the total Hawaiian Home Lands property. Meanwhile there are an estimated 29,162 qualified applicants on the Hawaiian Homes waiting list, many of whom have been waiting for forty years or more. Many have died waiting.

In 1959, when the Admissions Act turned responsibility for the remaining 1.5 million acres of ceded lands over to the new State of Hawaii, the federal government “retained” several hundred thousand acres for its national parks and military installations. Today, more than 100 facilities crowd the eight Hawaiian Islands, a land area approximately the size of Rhode Island and Connecticut combined. All the military bases occupy some ceded lands, and at least six occupy Hawaiian Home Lands, without consent or compensation.

Responsibility for these ceded lands rests with the Department of Land and Natural Resources (DLNR). For the state’s first twenty years, DLNR managed ceded lands without scrutiny. Among other abuses, it allowed use of ceded lands by other state departments without compensation. It also executed a slew of summary land swaps.

State and federal laws already mandate that Hawaiians receive priority for water, to support development, traditional agriculture, and gathering rights over subdivisions, hotels and golf courses — promises seemingly forgotten. The state’s Commission on Water Resources has ignored the “Hawaiian Rights” clause of the water code, the clause that guarantees adequate reserves of water for current and foreseeable development of Hawaiian Home Lands.

At the 1978 Constitutional Convention, the state admitted that it was derelict in its duty to provide for the Hawaiian community. The Office of Hawaiian Affairs (OHA) was created to receive 20 percent of all revenue generated by ceded lands for use for the benefit of Hawaiians.

Between 1980 and 1990, instead of 20 percent, OHA only received about $12.5 million in such proceeds. In 1993, OHA received $129 million from the state in settlement of those claims, including interest for back payment of monies owed by the state from 1980 – 1990, during the Waihee Administration.

In 1994, OHA initiated litigation to require the state to pay OHA past due amounts owed to Hawaiians that were not included in the $129 million settlement. In October 1996, Judge Heely granted OHA’s motion for partial summary judgment. The State filed an appeal. In December 1998, the Hawaii Supreme Court directed the parties to try to resolve the matter expeditiously. Negotiations continue.

As indigenous and first people to these islands, Hawaiians have essentially been under siege since foreign contact. In November 1993, President Clinton signed a Joint Resolution, which recognized the illegal procedure by which Hawaii was annexed to the United States, and apologized to Native Hawaiians on Behalf of the United States for the Overthrow of the Kingdom of Hawaii. This legal recognition has offered Hawaiians a unique opportunity to lead a renewed battle for the resurrection of the powerful principle of sovereignty. Sovereignty is not a foreign concept to Hawaiians, to Native Americans, or to states in general.

To the great nineteenth century orator, Stephen Douglas, states incorporated legally into the Union were co-equal and sovereign unto themselves. In his celebrated debates with Lincoln (echoing the Declaration of Independence, which states that “these United States are, and of right ought to be Free and Independent States”), Douglas said:

“THIS GOVERNMENT WAS MADE UPON THE GREAT BASIS OF THE SOVEREIGNTY OF THE STATES, THE RIGHT OF EACH STATE TO REGULATE ITS OWN DOMESTIC INSTITUTIONS TO SUIT ITSELF, AND THAT RIGHT WAS CONFERRED WITH THE UNDERSTANDING AND EXPECTATION THAT INASMUCH AS EACH LOCALITY HAD SEPARATE INTERESTS, EACH LOCALITY MUST HAVE DIFFERENT AND DISTINCT LOCAL DOMESTIC INSTITUTIONS, CORRESPONDING TO ITS WANTS AND INTERESTS.”

Native governments have formed under the federal government through the Department of the Interior. There are hundreds of recognized nations within the territorial United States, in which the United States is but one. The others consist of American Indians. If it is OK for American Indians to form sovereign nations, why not Hawaiians? Failure to do so would, in fact, be discrimination against Hawaiians.

As indigenous people, Hawaiians are seeking recognition from the federal government of their right to sovereignty and self determination. Hawaiians have no desire to be dependent on the state or federal government. If Hawaiians had control of their lands, they could take care of their own people. They would not be a drain on the economy. There would be no homeless Hawaiians.

Fundamental to any sovereignty concept is control over land. Hawaiians have never prospered on land held on their behalf, but outside their reach. Lands at issue consist of the 1.2 million acres currently under the control of the state and federal government, as well as lands set aside as Hawaiian Home Lands. Hawaiians are not talking about privately owned land.

Clouded Title Begs for Moratorium

By Trustee Rowena Akana
August 28, 1995

The apology resolution signed by Congress and President Clinton directs the Federal government to come to terms with the “ramifications” of the overthrow of Queen Liliuokalani. Among those “ramifications” are questions of the ownership and management of the former Crown Lands. From the overthrow in 1893, until the recent opinion by state Attorney General Margery S. Bronster authorizing the sale of public trust lands, each new link of the chain binding title of the ceded lands to the State of Hawaii binds the state to a legal fiction. Attorney Hayden Aluli is right to warn “buyer beware,” for a variety of legal and historical reasons.

The 1893 overthrow broke an 1849 treaty of “perpetual peace and amity” between the United States and the Kingdom of Hawaii. The landing of 162 fully armed marines with field artillery by Minister Stevens violated article six of the United States constitution, which states that “treaties shall be supreme law of the land.” President Cleveland and leading members of his administration clearly recognized that the Provisional Government had no existence beyond that granted by Minister Stevens, acting in his official capacity. Secretary of State Gresham concluded that “the legitimate government was in full possession and control of the palace, the barracks and the police station” when Minister Stevens recognized the paper government of Sanford Dole and Lorrin Thurston.

Queen Liliuokalani yielded authority to the United States, not to the Provisional Government. Most likely, she anticipated a repeat of 1843 when the Hawaiian sovereign temporarily yielded power to an overzealous British representative, whose government firmly disavowed his actions immediately upon learning of them and reinstated the King to his full power. Because at no time did the Queen yield to the Provisional Government, the islands remained under the temporary jurisdiction of the United States, invalidating the claims of the Provisional Government that Federal orders to reinstate Queen Liliuokalani equalled an “inadmissible interference in the domestic affairs of Hawaii.”

The Republic of Hawaii never became sovereign either. In spite of feeble attempts to dress the Republic of Hawaii in the trappings on constitutional and democratic legitimacy, they never achieved a status of sovereign consistent with international law. When President Dole convened a Constitutional Convention in 1894, he took the precaution of personally appointing a majority of the 37 delegates by himself. Candidates for the remaining slots, as well as all voters, had to take an oath of allegiance to the Provisional Government and not to the Queen. Less than 20% of previously qualified voters bothered to participate in this election, indicating a far narrower base of popular support than that called for by international law.

A principle of international law know as the “unequal treaty doctrine” states that treaties imposed on weaker states by stronger ones with coercion and the threat of force are voidable according to international law, as defined in such documents as the Covenant of the League of Nations, the Charter of the United Nations and the Vienna Convention on the Law of Treaties. According to this idea, the Newlands Resolution annexing Hawaii is a violation of international law.

The Court of Claims ruled against Queen Liliuokalani in the case of Liliuokalani v. United States thwarting her attempt to recover the Crown Lands. If, as the court ruled, title to the ceded lands vested with the office of the sovereign and not with the person, then the highly suspect transfer of political power makes their title all the less secure, and would imply that the entire body of lands remain recoverable by a reinstated sovereign Hawaiian government.

The many legal and historical events listed above are just some of the reasons that title to the ceded lands remains highly clouded today. Even if, for the purposes of argument, the state is considered to hold secure title as trustees of the ceded lands, the history of the implementation of Public Land Trust responsibilities is not a happy one. Countless examples can be found of breach of the trust provisions laid out in the Newlands Resolution, the Organic Act, the Hawaiian Homes Commission Act, the Admission Act and the 1978 amendments to the State Constitution that came out of the Constitutional Convention.

We all know the unfortunate attitude of the executive branch towards ceded land entitlements and what a burden Governor Cayetano thinks they place on the state. A pending court case on the Leiali’i housing development near Lahaina will soon reveal the attitude of the judicial branch as well. We also know, from the introduction of Representative Say’s bill to end ceded land revenues to the Office of Hawaiian Affairs and from the early demise of two bills proposing a limited moratorium on the sale and lease of ceded lands, that the legislative branch is not too keen on entitlements either. The time has come for everyone interested in preserving the integrity of the ceded lands to urge their legislators to move a moratorium bill next year, until questions of legal title and the relationship of the lands to a future sovereign entity are finally settled.