“That’s so dumb,” someone writing as “Momi” said in a comment received this week. She was taking issue with something I posted here 1-1/2 years ago about apparent misunderstandings or misstatements about Royal Patents or Land Court grants dating back to the Great Mahele (“Be skeptical of those “Royal Patent” land claims“).
Momi went on to argue that these land patents dating back a century or more are still valid, and referred to a 1977 ruling by the Hawaii Supreme Court which, she argued, validates that view.
“It’s clear you have not done your research,” Momi wrote. “It is allodial in perpetuity, it states in all royal patents.”
What’s interesting here is that Momi appears hold the same mistaken interpretation of Hawaii land law that I was trying to address in my earlier post. She seems to be arguing that if you can trace your family lineage back to the holder of one of those original land patents, then you still have a legal claim to some interest in the property because it was granted “in perpetuity.”
So let me repeat some of what I wrote back then.
Some activists appear to believe that once a Royal Patent was granted, it conveyed the property in perpetuity. A Royal Patent is the basis for the current occupation of site of the Coco Palms Hotel on Kauai.
Here’s one summary from the Garden Island Newspaper:
Mau-Espirito and his cousin, Kamuela Kapule O Kamehameha, say they have a royal patent called Palapala Sila Nui, which they say gives their family the rights to the land in perpetuity.
“Because my bloodline goes straight to Kaumualii, because Kamu’s bloodline goes straight to Kapule, we have vested rights and vested interests in this land that nobody can take away from us,” Mau-Espirito said. “Once a royal patent is made, it’s in that family’s name forever. All the kids in that bloodline will be able to come on this land.”
This belief that a Royal Patent gives the right to land in perpetuity is partially true. Only partially true because the same patent also includes the right for the owner to dispose of the land, to sell it, give it away, or otherwise transfer or assign it.
Yes, the land was granted in perpetuity, meaning that the fee simple interest would not expire, unlike a lease, which will eventually expire at the end of its term. But that original owner, or his or her heirs, were free to sell or otherwise transfer that title, thereby extinguishing the original owner’s interest (and the interests of others in the family).
A second factor is that those original land grants were made to an individual, not to a family. No one else in the family would have a claim to the land unless the original owner gave them a part of the property, or they were among the rightful heirs when that original owner died.
So the land remains “in the family’s name” only if the recipient of the original Royal Patent never transferred it to someone else, and the land was then handed down through inheritance within the family without being sold or transferred to others at any point over the past 160 years or so.
I’m pretty sure that the 1977 Hawaii Supreme Court case that Momi referred to is STATE of Hawaii, By its Attorney General, Bert T. KOBAYASHI, Plaintiff-Appellant, v. Maurice ZIMRING et al., Defendants-Appellees.
The decision walks through a history of Hawaii’s land title system, in which everything starts with those lands distributed to the government, the monarch, the chiefs, and to the tenants at the time of the Mahele. All titles today trace back to those beginnings.
After tracing the history of land title, the Supreme Court gave this concise summary of private land claims.
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.
A “predecessor in interest,” according to one of several available online legal dictionaries, “refers to a person or entity who previously held the rights or interests that are now held by another.”
So if you buy a home, the person you buy it from would be a predecessor in interest. If you inherit a property, the person who left it to you would be a predecessor in interest. And land title searches amount to tracing back from the person currently claiming title through each of the transactions until reaching the original patent or grant.
That title search might involve using a family genealogy to help assess ambiguous or questionable transfers, or to see whether the laws of inheritance were properly followed, but blood relationships without the corresponding chain of title doesn’t provide any current interest in what was once an ancestor’s property.
Remember, even though royal patents or land court grants gave rights “in perpetuity” to the original recipient, they were at the same time given the right to dispose of the property for any reason, a right that would pass down to subsequent owners.
If I misunderstood Momi’s point, I apologize for this long-winded reply. But I do think that there is a lot of magical thinking going on today about reclaiming prior land rights, and this confusion over the perpetual nature of land titles contributes to a false sense of entitlement that you see expressed quite often today in social media.
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My granny sold a beautiful ’57 Chevy ragtop to some dude a long time ago, before I was born. That guy put a souped-up motor in it and repainted it and replaced the top.
But the Chevy is really all mine because granny had title to it before she sold it, and I’m descended from granny.
So I want it back now and it’s worth a lot of money, especially since that other guy spent a lot to fix it up.
Because it’s really all mine. Anybody else who has it now is guilty of theft!!!
And anybody who disagrees with me just hates me and is lying.
That’s a perfect example of the point made.
Let me get this right, Ian.
What you are saying is that when land is held “in perpetuity”, it means that it is fee simple and not leasehold. When you buy land and own it “in perpetuity”, you keep owning it … until you sell it. At that point, the buyer owns it “in perpetuity” until he or she sells it. As opposed to renting.
So the ancient Hawaiian legal system that some people say applies to the idea of owning property “in perpetuity” is actually just like every other legal system in the world in terms of buying and selling land.
Did I get that right, Ian?
Yes. And even today, land titles are traced back legally to those first mid-19th century land grants.
Wait. You are saying that even though my maternal grandmother said that she was related to the Romanoffs, I have no legitimate claim to the Kremlin?
Technically no.
The “ancient Hawaiian” system didn’t have land ownership as we understand it.
The Mahele that formally divided the land between owners occurred in the mid-19th century, a bit too recent to be “ancient.”
But after the Mahele, Hawaiian land ownership does work the way you say, yes.
Momi commented that “It is allodial i[n] per[p]etuity[,] it states that on all royal patents.”
“Allodial” refers to property that was not provided by an authority in a feudal grant. In a feudal system, one “owns” land granted by someone higher in status, but one must continue to provide services (especially military service) to that overlord in order to keep (use of) the land. In contrast, allodial land was owned outright, no strings attached. It was often associated with land owned by the Church.
Today, land is owned fee simple and without shared title with a lord who granted the land. Title owners today pay property taxes to the government, not service to a lord. Today, landownership is allodial.
https://en.wikipedia.org/wiki/Allodial_title
“Before 1774, all land in the American colonies could also be traced to royal grants, either a single enormous grant creating each proprietary colony (e.g. Pennsylvania and Maryland), or smaller direct grants within crown colonies (e.g. Virginia). The original grantee (recipient of the land) then sold or granted parcels of land within his grant to private citizens and other legal entities. The Treaty of Paris (1783), which ended formal hostilities and recognized American independence, also had the effect of ending any residual rights held by the original grantees or the Crown. This recognized that no person holding land in the new United States owed any allegiance or duty to the Crown, as Allodial title to their property and land was one of the main things Americans were seeking during the Revolutionary War.”
It is therefore counterintuitive when Momi states that “all royal patents” were “allodial in perpetuity”, because allodial land stands outside royal gifts and grants. However, the royal patents in Hawaii might have meant that land titles can be sold in declaring that they were “allodial in perpetuity” (fee simple).
Aloha, you said “however, the royal patents in Hawaii might have meant that land titles can be sold in declaring that they were “allodial in perpetuity” (fee simple).”
What do you mean by this?
If all the heirs signed off shuckerberg tricked kanaka into doing. The future babys have the same undivided interest and didn’t sign off their interest means those baby kanaka are the next heirs.
Kanaka doing the land grabbing are perpetrators of treason. That is the only way the oatents can be taken back by the kingdom.
Some people might be confusing land title with aristocratic titles. The title of duke or duchess stays in the family forever. Not so with land, which can be bought, sold, foreclosed on, or lost through condemnation, lawsuit, bankruptcy, war, revolution, natural disaster.
I’m curious to know what were the laws, if there were any, pertaining to royal patents given in Hawaii? Was it like every other nation that granted royal patents?
i understood that grant of land from the mahele was palapala sila nui had surveys on them why then did it have to get another survey from land commissioner then record with bureau of conveyance in honolulu or it wasnt legal the palapala sila nui ive seen has kuleana at bottom of deed also amount of acreage and what amount paid does this mean he owns it before second survey
another step in acquiring someone elses awarded lands is called the tax lien method before tmks issued and a way to circumvent grant or deed numbrs also first tax map key is issued to surveyor in his name with grant or palapala sila nui , accumulates two pages as registrar of territory he starts bogus leases up to 20 years on these awarded lands if it goes well able to just on paper marked with small le on individual cards lease up to 20 years
if no record of any tax paid (some didnt need yet) sells as lessee now become grantor of whole deeds can do this without undivided interest owner knowing tax office telling you small le means leasehold in reality find it means lifetime estate missionaries perptrating ownership carried down descendant to descendant using same names this is a 100 year process in the meatime you have acquired and became owner fee simple of others but for descendants not born yet getting land worth 5,000.000. for 65,000. the first monies paid over 80 years a good deal . called perpetuities just be only owner of record of lands you dont own stop paying tax on them cause pre planned foreclosures not find out until maui news ad posted 3 times see if you get newspaper not think anyone person could own but they did if pre planned owner wants it simply remove from tax auction early someway ability to become owner fee simple on your families awarded lands
forgot to add lands with undivided interests are not desireable why necessary to go to tax lien auction on bogus leases by the time you figure it out its too late one year then go to court thousands of dollars and lose to thief big land holder has a team of experts in all fields even attorney that did last will or trust made statute to hold attorney harmless before he filed clients (forgot the word) will?
You don’t decide for family’s which land is desireable to us. Our Kupuna walked and those lands. It is sacred to us.
Great article…thank you.
Aloha,
My name is Momi. I had no idea this conversation was going on but I think it’s great. Yes the original awardee had the right to sell it but the heirs do not. We do have the right to use claim and use the lands. Once the land was patented there was no higher title, no taxes or superior telling them what to do.. In the case where my great grandfathers and mothers were conserned we were left a deed which I used to record a NOTICE OF PRESERVATION AND UNDIVIDED LINEAL INTEREST OF TITLE which I am now using to serve to illegal occupiers, unlawful government entities. Only all heirs signed over their interest the land can be sold however as the babys were born they would have to settle with the next generation who had a lifetime interest. . A tax lien has nothing to do with us because there is no taxes on kuleana parcels.
The ohana does have the right to claim the lands and we are. I read a document Uwekoolani served my cousin. It was to the “HEIRS OF KANAO” who is that? The whole document was fraud. It’s horrible when the cousins do this to cousins for greed.
From what I was told is her husband was an heir not her. Her sons are heirs. Therefore, she’s not an heir.
I’m glad people are talking about the land patents. I stand behind what I said but I must admit I did not read the whole strand of comments. I will try. Aloha!
Interesting. I didn’t know this conversation was occurring or I would’ve chimes in earlier.
Kobayashi vs Zimring is where the royal patents were recognized by the courts and the state failed to show proof of title. Of course the judge sided with the state.
What people fail to realize is Hawaii has only been a state for around 80 years.
I was able to see the document Uwekoolani served to my cousin. It didn’t even make sense. It was directed to the “HEIRS OF KANAO”. Who is that? Your tax lien has nothing to do with our claim and we are claiming it. There were so many discrepancies in the document that it was laughable. We have a deed. There is no taxes on kuleana lands and furthermore, the ohana did not put a tmk on the estate of my great grandfathers and mothers. We are not liable to County taxes. Allodial means there is no superior. That is why they call the holder of allodial title the “sovereign.” If Uwekoolani would like to see and be served our factual evidence she can contact me by email. She is not a lineal heir to the land. Her husband was and sons are. The family filled me in on all this. I’m not one to judge but the family doesn’t agree with what she is doing. It’s land theft, based on fraud, and perpetuated by the state. These patents were signed by the Hawaiian Kingdom ko Hawaii Pae ‘Aina and not the state. She’s continuing on with the fraud. She’s a realtor and this is immoral to see what she is saying.
Aloha,
Momi
Regardless of saying I’m arguing. I love the conversation. It about time kanaka speak up. I don’t recall the original conversation but it sounds about right that I would say it because it’s true.
One more thing, my great grandfather left us a deed and that is how I found the land in Kanaio and all over the islands.
Perpetuity means forever and all Royal Patents state “to heirs and assigns forever.” Not one, two three days or only their lifetime.
If you look at Land Patents in America it says the same.
I have all the royal patents to my great grand mother and grandfathers lands in Kanaio. 50 other factual heirs are also on my document as claimants.
I’m sure my great grandfathers didn’t go through all that work to obtain their perpetual patents as well as write a deed if he wanted some non related person to steal it through tax fraud. Hewa!