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Who Owns the Crown Lands of Hawai`i?

Who Owns the Crown Lands of Hawai`i?

Jon M. Van Dyke
Copyright Date: 2008
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  • Book Info
    Who Owns the Crown Lands of Hawai`i?
    Book Description:

    The 1846-1848 Mahele (division) transformed the lands of Hawai‘i from a shared value into private property, but left many issues unresolved. Kauikeaouli (Kamehameha III) agreed to the Mahele, which divided all land among the mô‘î (king), the ali‘i (chiefs), and the maka‘âînana (commoners), in the hopes of keeping the lands in Hawaiian hands even if a foreign power claimed sovereignty over the Islands. The king’s share was further divided into Government and Crown Lands, the latter managed personally by the ruler until a court decision in 1864 and a statute passed in 1865 declared that they could no longer be bought or sold by the mô‘î and should be maintained intact for future monarchs. After the illegal overthrow of the monarchy in 1893, Government and Crown Lands were joined together, and after annexation in 1898 they were managed as a public trust by the United States. At statehood in 1959, all but 373,720 acres of Government and Crown Lands were transferred to the State of Hawai‘i. The legal status of Crown Lands remains controversial and misunderstood to this day. In this engrossing work, Jon Van Dyke describes and analyzes in detail the complex cultural and legal history of Hawai‘i’s Crown Lands. He argues that these lands must be examined as a separate entity and their unique status recognized. Government Lands were created to provide for the needs of the general population; Crown Lands were part of the personal domain of Kamehameha III and evolved into a resource designed to support the mô‘î, who in turn supported the Native Hawaiian people. The question of who owns Hawai‘i’s Crown Lands today is of singular importance for Native Hawaiians in their quest for recognition and sovereignty, and this volume will become a primary resource on a fundamental issue underlying Native Hawaiian birthrights.

    eISBN: 978-0-8248-6560-3
    Subjects: Anthropology, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-x)
    William S. Richardson

    This important book is designed to sort out a complex body of legal history and thereby to give us guidance about how to evaluate and act upon these historical events. It should prove to be a valuable resource for everyone interested in addressing and resolving the claims of the Native Hawaiian People, which continue to haunt and divide our community.

    This book was initiated and inspired by Richard Dwayne Nakila Steele (1934–2006), who was a student of Hawaiian history and culture throughout his life. He saw the Crown Lands as the key to the sad history of loss of...

  4. Acknowledgments
    (pp. xi-xii)
    Jon M. Van Dyke
  5. 1 Introduction
    (pp. 1-10)

    The history of Hawai‘i is a history of lands moving from the Native Hawaiian People into the hands of others.¹ During the nineteenth century, Hawai‘i was transformed from an isolated Polynesian culture into a multiethnic military outpost of the United States. Prior to this time, Native Hawaiians had “lived in a highly organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture, and religion.”² This self-sustaining economy was based on agriculture, fishing, and a rich artistic life in which they created substantial temples, rugged voyaging canoes, carved images, colorful feathered capes, tools for fishing and...

  6. 2 Land Tenure on the Eve of Western Contact
    (pp. 11-18)

    Before continuous contact with westerners began in 1778, the dominant system of land tenure was an intricate and interdependent arrangement based on agricultural needs and hierarchical structure.¹ Individuals lived in reciprocity with the ‘Āina (land), which they believed would sustain them if properly respected and cared for. ‘Āina was not a commodity and could not be owned or traded. Instead, it belonged to the Akua (gods and goddesses),² and the Ali‘i³ (the chiefs and chiefesses who were the human embodiment of the Akua) were responsible for assisting ka po‘e Hawai‘i (the people of Hawai‘i) in the proper management of the...

  7. 3 Before the Mahele
    (pp. 19-29)

    The foreigners who came to Hawai‘i brought with them a host of bacteria, viruses, and diseases. The isolation of the Islands and the limited contact between the natives and pathogens common elsewhere drastically increased the impact of foreign illnesses on the Native Hawaiians and ravaged the population, culture, and society of ka po‘e Hawai‘i. The communal lifestyle and cultural practices of the Hawaiians, as well as their inexperience with infectious diseases, compounded the spread and effect of sickness, and the scarcity of doctors and medicine aggravated the rate of death.¹

    Chronic, insidious diseases swept through the Native Hawaiian population from...

  8. 4 The Mahele
    (pp. 30-53)

    In 1840, Kauikeaouli (Kamehameha III) proclaimed the Kingdom’s first Constitution, and in the years that followed he promulgated a series of laws designed to maintain Native Hawaiian control of the ‘Āina. His efforts were undercut, however, by the increasing debts of the Ali‘i to the recently arrived westerners, which presented a continuing threat to this control. Requests by local foreigners for land in lease or fee and offers by foreign nations to accept acreage in lieu of debts created anxiety among both the Ali‘i and the maka‘āinana. Resident missionaries and merchants filed complaints with their foreign consuls and home governments...

  9. 5 The Government Lands
    (pp. 54-58)

    The first division of the complex Mahele process was completed in March 1848.¹ Entries in theBuke Mahelerevealed that more than 240 Ali‘i had been granted life estates in approximately 1.5 million acres of land. Although still subject to the rights of native tenants, these lands of the Ali‘i and Konohiki could be converted from life estates into freehold fee simple estates of inheritance by paying the Government a “commutation fee” determined by the Privy Council. In return for this fee, payable in money or lands, a Royal Patent would be issued to the landholder.²

    Following this division with...

  10. 6 The Transfer of Lands from Kauikeaouli to Alexander Liholiho (1854–55)
    (pp. 59-65)

    After the Mahele was complete, Kauikeaouli (Kamehameha III) managed ‘Āina that came to be called the “Crown Lands”—then called simply the “King’s Lands”—as an individual would manage private property. Because the Mō‘ī did not receive funding from the Government to support his office, Kauikeaouli relied heavily on the King’s Lands to finance his royal responsibilities, and throughout his lifetime he leased, sold, and mortgaged portions of these ‘Āina to generate revenue.¹ As the Hawai‘i Supreme Court later explained, “the crown lands were regarded [in the 1850s] as private lands for many purposes and were often spoken of as...

  11. 7 The Passing of Alexander Liholiho (1863)
    (pp. 66-70)

    At 9:15 a.m. on November 30, 1863, the nine-year reign of King Kamehameha IV (Alexander Liholiho) ended unexpectedly and prematurely.¹ Afflicted by chronic asthma and still grieving over the 1862 death of his four-year-old son Prince Albert² and perhaps also from his 1859 shooting of his private secretary,³ Alexander Liholiho died suddenly at the age of 29. The Privy Council,⁴ after confirming with Queen Emma that an heir was not to be born posthumously, acted promptly, and at 11 a.m that same day declared thirty-two-year-old Prince Lot Kapuāiwa, the older brother of the late Kamehameha IV, to be heir to...

  12. Maps
    (pp. None)
  13. 8 In the Matter of the Estate of His Majesty Kamehameha IV (1864)
    (pp. 71-88)

    This chapter discusses the central event in the evolution of the Crown Lands—the Hawai‘i Supreme Court’s 1864 decision entitledIn the Matter of the Estate of His Majesty Kamehameha IV,¹ which addressed whether the lands should pass to the familial heirs of the deceased Mō‘ī or to the new Mō‘ī. When Kamehameha IV (Alexander Liholiho) died in 1863, the selection of Prince Lot Kapuāiwa as successor to the throne was resolved without delay, as explained in the previous chapter, but the distribution of the King’s Lands proved to be much more controversial. The Mō‘ī had died without a written...

  14. 9 The 1865 Statute Making the Crown Lands Inalienable
    (pp. 89-92)

    As a result of the 1864 Supreme Court decision,¹ it was understood that the Crown Lands passed to the successor of the throne for the Mō‘ī’s lifetime, but the apparent inconsistencies in Justice Robertson’s decision regarding dower and the power of the Mō‘ī to sell and transfer Crown Lands remained troublesome. Recognizing the competing interests of the Queen’s entitlement to dower on the one hand and the disadvantage of a diminished Royal Domain on the other, the Legislature offered Queen Emma lifetime annual payments of $6,000 if she waived her dower interest in the Crown Lands.² She accepted this offer...

  15. 10 The Ascension of William Charles Lunalilo to the Throne (1872)
    (pp. 93-95)

    On December 11, 1872, Lot Kapuāiwa (Kamehameha V) died on his forty-second birthday.¹ Like his younger brother Alexander Liholiho (Kamehameha IV), he had reigned for a nine-year period and had died without naming a successor. William Charles Lunalilo, a cousin of the deceased Mō‘ī who also had attended the Royal School, emerged as an early front-runner.² Lunalilo was a descendant of Kalaimamahu, a half brother of Kamehameha I.³ Although his ascension to the throne over his rival, David Kalākaua, preserved the Kamehameha line to some extent, Lunalilo did not consider himself a Kamehameha. At Lunalilo’s suggestion, a plebiscite by the...

  16. 11 The Transition between the Kamehameha Line and Kalākaua’s Keawe-a-Heulu Line
    (pp. 96-99)

    Because King Lunalilo had not named a successor, Article 22 of the 1864 Constitution assigned the task to the Cabinet Council and the Legislative Assembly. The two main candidates were Queen Emma, widow of Kamehameha IV and great-grandniece of Kamehameha I, and David Kalākaua, a descendant of high Ali‘i of Hilo who had supported Kamehameha I.¹ Both had been students at the Royal School,² and both were passionate in their quest for the Crown. Kalākaua announced, “My earnest desire is for the perpetuity of the crown and the permanent independence of the government and people of Hawaii, on the basis...

  17. 12 Claus Spreckels, Princess Ruth Ke‘elikolani, and the Claim to a Half Interest in the Crown Lands
    (pp. 100-110)

    The California sugar magnate Claus Spreckels came to Hawai‘i in 1876 on the same steamer that brought word of the Reciprocity Treaty’s ratification.¹ On this first trip, Spreckels gathered information on how he could share in Hawai‘i’s future prosperity, and when he returned in 1878, he focused on growing sugar on the plains of central Maui.² He brought Hermann Schussler, an engineer who was able to design a ditch system that could transport water from the slopes of Haleakalā.³ As one of the few in the islands with access to large amounts of cash,⁴ Spreckels was able to purchase land,...

  18. 13 The Inalienable Crown Lands (1865–93)
    (pp. 111-117)

    Except for the episode with Princess Ruth and Claus Spreckels described in the preceding chapter, the Crown Lands were maintained in a relatively stable condition during the twenty-eight years between the 1865 statute and the 1893 overthrow of the Kingdom. The Commissioners of the Crown Lands managed the land, leased the most productive lands (usually to sugar plantations), and conveyed the revenues to the Mō‘ī. But this period was a turbulent one for the Kingdom, and the changing demographics and unrelenting efforts of foreigners to acquire ‘Āina led to the 1887 Bayonet Constitution and the 1893 overthrow, as chapters 14...

  19. 14 The 1887 Bayonet Constitution and the Reciprocity / Pearl Harbor Treaty: Preludes to Overthrow
    (pp. 118-130)

    David Kaläkaua served as Mō‘ī from 1874 to 1891. As King, he strove to maintain the Kingdom’s independence and to restore Hawaiian culture despite the continuing decline of the Hawaiian population, the introduction of substantial numbers of foreign contract workers, and increased pressure from the Western business community.

    Through the 1860s, the towns in Hawai‘i had prospered by serving as “a great general store doing the business of the Pacifi c whaling fl eet in all its details—commission, exchange, supplies, and so forth,” but this role “ceased to exist when the ice in the north crushed the whaling fleet”...

  20. 15 Population, Voting, and Citizenship in the Kingdom of Hawai‘i
    (pp. 131-150)

    This chapter departs from the chronological approach tracing the historical events relevant to the Crown Lands to examine a relevant and misunderstood topic: What was the nature of the polity or political community in the Kingdom in the years before the 1893 overthrow? This issue is important to modern analysis regarding claims to the Crown Lands, because it is central to the question of who it was that was injured by the overthrow and the accompanying transfer of lands. As the materials that follow demonstrate, this issue has some complexities, but the central answer is not in doubt: Native Hawaiians...

  21. 16 The 1893 Overthrow of the Kingdom
    (pp. 151-171)

    Following King Kalākaua’s death in San Francisco in January 1891 at the age of 54, the Crown passed to his sister, Lili‘uokalani, pursuant to the requirements of Article 22 of the 1887 Constitution.¹ As Queen, Lili‘uokalani continued her brother’s fight to preserve an independent Kingdom and, in particular, sought to roll back the “reforms” of the 1887 Bayonet Constitution. Kalākaua had sought in 1890 to convene a Constitutional Convention, and this proposal had widespread support of the native population and of native leaders such as Joseph Nawahi and Robert Wilcox.² In 1892, “[p]etitions poured in from every part of the...

  22. 17 The Republic of Hawaii (1894–98)
    (pp. 172-187)

    The small group of westerners who engineered the overthrow of the Kingdom in January 1893, with the crucial help of U.S. military and diplomatic personnel, wanted the United States to annex the islands immediately. The Republican President Benjamin Harrison supported this effort and sought to rush an annexation treaty through the Senate after the takeover.¹ But Harrison had been defeated in the November 1892 election by Democrat Grover Cleveland, who took office on March 4, 1893, and Cleveland withdrew the proposed annexation treaty almost immediately after his inauguration.

    After this setback, the Legislature of the Provisional Government set up by...

  23. 18 The 1895 Land Act
    (pp. 188-199)

    As early as 1872, when Kamehameha V (Lot) was still King, Sanford Ballard Dole (then only twenty-eight years old) had attacked the restrictions that kept the Crown Lands from being freely sold. In a newspaper commentary, he argued that restrictions on distribution of “the Crown lands, inalienable and generally farmed out on long terms,” as well as the “prejudice” against selling the Government Lands (which were alienable, but in fact were “mostly farmed out to tenants like the Crown lands”) were a “mistaken policy . . . which forms perhaps the greatest obstacle to a comprehensive homestead system of settlement.”¹...

  24. 19 Annexation by the United States (1898)
    (pp. 200-215)

    The end of the nineteenth and beginning of the twentieth century was a time of turmoil and transition, when perspectives of idealism and limitless progress clashed with the old-fashioned habits of greed, selfishness, great-power competition, and imperialism. The United States had fulfilled its self-image of “Manifest Destiny,” had stretched its borders across North America, was emerging as a land of opportunity and innovation, and was becoming more active in world affairs.

    In November 1896, William McKinley, a Republican Senator from Ohio, defeated Democrat Grover Cleveland as President, and he took office four months later in March 1897. This transition was...

  25. 20 The Crown Lands during the Territorial Period (1898–1959)
    (pp. 216-226)

    In the documents written around the time of annexation, the exact acreage of the Crown and Government Lands “ceded” to the United States varied, and modern authors tend to report that “about 1,750,000 acres” or “approximately 1,800,000” acres were transferred.¹ In a report written for the House of Representatives Committee on Territories in February 1900, the figure used was 1,751,400 acres, of which 31,346 acres were in “lots taken up, but not yet patented,” leaving 1,720,055 acres.² These ‘Āina constituted almost half of the 4,112,000 acres in the eight main Hawaiian Islands.³ And most of this land was leased; in...

  26. 21 Liliuokalani v. United States (1910)
    (pp. 227-236)

    In the years following the 1893 overthrow, Queen Lili‘uokalani worked relentlessly to try to restore her Kingdom and to block annexation. And in the debates over annexation and in the years following the 1898 annexation she (and others) asserted claims to the Crown Lands. On June 17, 1897, for instance, in the protest Lili‘uokalani issued the day after the draft treaty of annexation was submitted to the U.S. Senate, she included in her protest the concern about the Crown Lands, contending that these Lands have

    in no way been heretofore recognized as other than the private property of the constitutional...

  27. 22 The Hawaiian Homes Commission Act (1921)
    (pp. 237-253)

    On July 9, 1921, Congress enacted the Hawaiian Homes Commission Act (HHCA),¹ which set aside about 203,500 acres of what had been part of the Crown and Government Lands inventory to provide ninety-nine-year homestead leases of land at a nominal fee for residences and farm lots for Native Hawaiians.² This statute was passed for a variety of diverse and complex reasons and was the result of a compromise of conflicting goals.³ Certainly the goal of the Native Hawaiian proponents and some of the federal officials in the Interior Department was to reverse the native population’s progressively declining numbers and thus...

  28. 23 Statehood (1959 to Present)
    (pp. 254-273)

    On August 21, 1959, Hawai‘i became the Fiftieth State of the United States.¹ The vote of the people of Hawai‘i in favor of statehood was an overwhelming 94 percent in favor, but this vote has been criticized by some because it did not list other self-determination options as possibilities, including independence or a freely associated status.²

    Becoming a state of the United States was a topic that had been discussed in the Islands for more than a hundred years. In the early 1850s, Kauikeaouli (Kamehameha III) instructed his advisors to negotiate a treaty of annexation with the United States on...

  29. 24 The “Painful Irony” of Rice v. Cayetano (2000)
    (pp. 274-306)

    The efforts of Native Hawaiians to recover their lost lands, resources, and governmental authority were frustrated in February 2000, when the U.S. Supreme Court issued its opinion inRice v. Cayetano,¹ declaring unconstitutional the provision in Hawai‘i’s Constitution limiting those who could vote for the Trustees of the Office of Hawaiian Affairs (OHA) to those of Native Hawaiian ancestry. OHA had been established pursuant to a constitutional provision² added to Hawai‘i’s Constitution in 1978 in order to provide a forum for Native Hawaiians to discuss issues of common concern and to facilitate the process of self-determination leading to self-governance.² The...

  30. 25 The Kamehameha Schools
    (pp. 307-323)

    This chapter and the one that follows depart from the Crown Lands to look at the four main trusts established by Ali‘i Nui in the late nineteenth and early twentieth centuries. Although the ‘Āina and assets examined in these chapters were never part of the Crown Lands, their story is relevant to the central themes of this book because these ‘Āina became part of the private lands of leading Ali‘i at the Mahele in 1848—at the same time Kamehameha III (Kauikeaouli) took charge of the Crown Lands (then called “the King’s Lands”)—and the ways in which these four...

  31. 26 The Other Ali‘i Trusts
    (pp. 324-343)

    The first division in the 1848 Mahele was between the Mō‘ī, and the Ali‘i. As explained in chapter 4, the most extensive tracts of the 1.5 million acres allocated to the Ali‘i were distributed to the ten highest and most prestigious chiefs, the Ali‘i Nui. They paid the commutation fee by assigning one-third of their lands back to the Government and then used these lands to support themselves and the thousands of native tenants who lived within their boundaries. As the previous chapter explained, ‘Āina from six of the ten Ali‘i Nui were passed down to Bernice Pauahi Bishop, who...

  32. 27 The British Crown Lands
    (pp. 344-357)

    The Hawaiian Monarchs looked to the royalty of Great Britain for inspiration and ideas, and so it may be helpful to examine the relationship between the British Monarchs and their Crown Lands to understand how the Crown Lands of Hawai‘i should be perceived. Such an examination reveals that the relationship between the British Crown Lands and the British Monarchs changed dramatically over time, but the British Crown Lands have always been part of the trust relationship between the British royalty and their people, which is similar to the trust relationship that connected the Hawaiian Monarchs and the Native Hawaiian People....

  33. 28 Claims of Ali‘i Descendants
    (pp. 358-374)

    Because the focus of this volume is the status of the Crown Lands—the lands specifically selected by Kauikeaouli (Kamehameha III) at the time of the Mahele to be under his own personal control in order to support his Monarchy—the book concentrates on the unique role of the Monarchs and the other high Ali‘i. As explained in the beginning chapters, the Ali‘i had important responsibilities, as well as rights, and they understood their duty to mālama (care for) their people and the ‘Āina of the Islands. Even though the Kingdom was eventually lost and much of the land passed...

  34. 29 Summary and Conclusions
    (pp. 375-384)

    This book has been written to serve as a resource for those concerned about how to bring about a fair resolution of some of the disputes haunting Hawai‘i. It has been written in the hope that a review and reexamination of the rich historical tapestry that has led to the present conundrum might help to promote the “reconciliation” called for by the U.S. Congress in the 1993 “Apology Resolution.”¹ This concluding chapter attempts to tie together some of the loose ends from the previous chapters and provide an overview that may help to promote a solution.

    To understand the current...

  35. Appendix 1 Principles Adopted by the Land Commission, 1846–47
    (pp. 385-396)
  36. Appendix 2 An Act Relating to the Crown, Government, and Fort Lands, June 7, 1848
    (pp. 397-421)
  37. Appendix 3 The Kuleana Act (Enactment of Further Principles), August 6, 1850
    (pp. 422-423)
  38. Appendix 4 In the Matter of the Estate of His Majesty Kamehameha IV, 2 Hawai‘i 715, 1864 WL 2485 (1864)
    (pp. 424-432)
  39. Appendix 5 Act Rendering the Crown Lands Inalienable, January 3, 1865
    (pp. 433-434)
  40. Appendix 6 Joint Resolution of Annexation, July 7, 1898
    (pp. 435-436)
  41. Appendix 7 Excerpts from the Organic Act, April 30, 1900
    (pp. 437-445)
  42. Appendix 8 Liliuokalani v. United States, 45 Ct.Cl. 481, 1909 WL 905 (U.S. Court of Claims 1910)
    (pp. 446-449)
  43. Appendix 9 “Apology Resolution,” November 23, 1993
    (pp. 450-454)
  44. Glossary
    (pp. 455-458)
  45. Selected Bibliography
    (pp. 459-470)
  46. General Index
    (pp. 471-482)
  47. Case Index
    (pp. 483-484)
  48. Credits for Photographs
    (pp. 485-486)
  49. Back Matter
    (pp. 487-488)