This recitation of Hawaii’s land title system appears in a 1977 decision of the Hawaii Supreme Court in the case of STATE of Hawaii, By its Attorney General, Bert T. KOBAYASHI, Plaintiff-Appellant, v. Maurice ZIMRING et al., Defendants-Appellees.
I’m reprinting this extended excerpt so that you don’t necessarily have to look up and wade through the complete decision.
It is a very instructive historical summary. I’ve removed the references for easier reading, but you can easily find those in the full opinion.
It was long ago acknowledged that the people of Hawaii are the original owners of all Hawaiian land. The Constitution of 1840, promulgated by King Kamehameha III, states:
KAMEHAMEHA I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and the people in common, of whom Kamehameha I, was the head, and had the management of the landed property.Responding to pressure exerted by foreign residents who sought fee title to land, and goaded by the recognition that the traditional system could not long endure, King Kamehameha III undertook a reformation of the traditional system of land tenure by instituting a regime of private title in the 1840’s. In adopting a system under which individuals could hold title to land, the public domain, which theretofore had been all-encompassing, necessarily was diminished.
A Board of Commissioners to Quiet Land Title, commonly known as the Land Commission, was created in 1846 for the “investigation and final ascertainment or rejection of all claims of private individuals,” and was empowered to make Land Commission Awards. The Minister of Interior was authorized to issue Royal Patents upon such awards, upon payment of commutation by the awardee to the government, usually set at one-third the value of the unimproved land at the time of the award. A Land Commission Award furnished as good and sufficient a ground upon which to maintain an action against any person as a Royal Patent.
In 1847, the King together with the Privy Council determined that a land mahele, or division, was necessary for the prosperity of the Kingdom. The rules adopted to guide such division were, in part, (1) that the King shall retain all his private lands as individual property and (2) that of the remaining lands, one-third was to be set aside for the Government, one-third to the chiefs and konohiki, and one-third for the tenants. The Great Mahele was started in 1848, with the chiefs and konohiki first coming forward to settle their interests by agreement with the King. The Mahele agreements were essentially reciprocal quitclaims and did not convey title. Detailed claims had to be presented to the Land Commission for formal Land Commission Awards.
Once the Mahele agreements with the chiefs and the konohiki had been completed, there was to be a division of the remaining lands between the King and the Government. The King’s motives in undertaking such a division were indicated by this court in Estate of His Majesty Kamehameha IV, 2 Haw. 715, 722 (1864):
Even before [the King’s] division with the [chiefs and konohiki], a second division between himself and the government or state was clearly contemplated, and he appears to have admitted that the lands he then held might have been subjected to a commutation in favor of the government, in like manner with the lands of the chiefs. The records of the discussion in Council show plainly his Majesty’s anxious desire to free his lands from the burden of being considered public domain, and as such, subjected to the danger of confiscation in the event of his islands being seized by any foreign power, and also his wish to enjoy complete control over his own property. Moved by these considerations and by a desire to promote the interest of his Kingdom, he proceeded with an exalted liberality to set apart for the use of the government the larger portion of his royal domain, reserving to himself what he deemed a reasonable amount of land as his own estate.
To effect this, the King signed and sealed two instruments. By one instrument, the King, having “set apart forever to the chiefs and people the larger part of my royal land, for the use and benefit of the Hawaiian Government,” retained for himself and his heirs certain designated lands, thereafter referred to as Crown Lands. By the second instrument, the King “set apart forever to the chiefs and people of my Kingdom” the remaining designated lands. Until 1865, when Crown Lands were made inalienable, Kamehameha III and his successors acted like private owners respecting such lands. The deeds executed by the King upon sale of any portion of the Crown Lands are known as Kamehameha Deeds.
The public domain, which previous to the Mahele had been all-inclusive, was diminished by withdrawals of the Crown Lands and the lands successfully claimed by chiefs, konohiki and tenants. It included, inter alia, the lands surrendered to the Government by the King, the lands ceded by the chiefs in lieu of commutation, the lands purchased by the government, and all lands forfeited by the neglect of claimants to present their claims to the Land Commission within the period fixed by law. In 1893, following the overthrow of the monarchy, the Republic declared that Crown Lands were Government property and part of the public domain.
As to lands which were overlooked in the Mahele and thus unassigned, the question arose whether they were Crown or Government Lands. This court in Thurston v. Bishop, 7 Haw. 421 (1888), adopted the position that such unassigned lands remained part of the public domain.
Following the Mahele, portions of the public domain were sold from time to time in order to provide landless citizens with land and to obtain revenues for public expenditures. Purchasers of these lands were issued documents called Grants or Royal Patent Grants.
This encapsulation of the origin and development of the private title in Hawaii makes clear the validity of the basic proposition in Hawaiian property law that land in its original state is public land and if not awarded or granted, such land remains in the public domain. To establish legally cognizable private title to land in the great majority of cases, one must show that he or a predecessor-in-interest acquired a Land Commission Award, a Royal Patent, a Kamehameha Deed, a Grant, a Royal Patent Grant, or other government grant for the land in question.
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From the 1837 treaty with the British,
“The land on which houses are built is the property of the King.”
In response to complaints from the French a diplomatic note by Kamemeha lll states.
“The laws require the people to labor on certain days; some for the Government, and some for the landlords to whom the labor is due according to law, and the kind of labor is regulated by those to whom the labor is due.”
The correct definition of this property rights regime is “share tenancy.” In Europe around 1000 CE all land was held by he King as well, nobles held land “of the king”. This was a coomon form of property rights regime not only in Europe, but byzantium, Egypt, and China. Land belonged to the monarch and there were multiple claimants to any piece of land. Tenants, like Maka’aina here, owed labor services and a portion of their product to the landlords, government and King. Dawes in shoal of time points to the British consul’s forgery of a 399 year lease agreement (signed by officials who were illiterate) as the ultimate source of the change to fee simple private property. First the Palmerston affair, where a British naval captain usurped the government of Hawaii because of complaints by this consul, the cessation of that usurpation when official British position, recognizing the Kingdom as the sole legitimate government of Hawaii. Following this the British government upheld the Consul’s claim, and the new consul, sold the property. This led to the realazation that without registration of actual property ownership by individuals this sort of theft could contine.
A newspaper article recently stated that in old Hawaii, the land was “owned collectively”. Technically, that is sort of true, but more in the corporate sense than in the sense of democratic socialism. Kings owned all the land in their domain as PUBLIC land, which was parceled out in joint ownership to chiefs (essentially, rented out), who further distributed the land in joint ownership with tenants (essentially, sublet). In doing this, the ruling class claimed that they benevolently managed this public land for the good of all the people.
The Crown Lands consisted of 1.8 million acres that were set aside by King Kamahameha III as PRIVATE property for his own family. At the time of annexation as the Territory of Hawaii, the former Crown Lands were given (“ceded”) to the US federal government. When the Hawaii Admission Act made Hawai?i a U.S. state, the lands were transferred to the state.
Some Native Hawaiian organizations contend that these lands belong to the Hawaiian people, and that any use of or possession of them by any other body is not legal. On the one hand, there is some credence to this claim in that use of or possession by the US federal and Hawaii State government is problematic because Crown Lands were confiscated private property transferred to the government(s). On the other hand, the idea that this land belongs to the Hawaiian people is even more dubious. The Crown Lands were private property, not public. If there was an injustice, it was against the family of Kamehameha III.
Again, the Crown Lands were not public lands being managed by the King. Rather, the Crown Lands were strictly PRIVATE property in the modern sense. How did this innovation emerge?
The narrative above written by the Hawaii Supreme Court in 1977 states that Kamehameha III claimed that he transferred an unprecedented amount of land to Hawaii’s government because he feared that it would otherwise be confiscated by a foreign government in the event of an invasion. Perhaps so, but in doing so, he might have conveniently diverted attention away from his own transfer of public land to himself and his family, thereby transforming it into private land. Personal profit of Kamehameha III seems to have been the motive in the creation Crown Lands (in fact, no other motive seems possible). This diversion of public land to Kamehameha III’s personal estate seems to be a divergence from the tradition where all land was theoretically public (albeit managed by an elite).
Mr. Ian,
Thank you very much for your series of articles on land titles, Native Hawaiian land rights, and all the related issues. Very helpful.