I started tracking down information concerning Occupied Forces Hawaii Army after an incident involving Commander Sam Lilikoi was mentioned in the federal criminal charges filed in April against Lindsey Kinney for making death threats against several people (“FBI Arrests Miske Witness After Waianae Harbor Confrontation“). Hawaii News Now then broadcast a story about Lilikoi’s history as a multiple felon in the early 1990s under his real name, Eric C.A. Nelson (“Feds link man accused of threatening Hawaii leaders to paramilitary sovereignty group“).
While searching court records, I found Occupied Forces Hawaii Army had been named as a defendant in a lawsuit stemming from the occupation of a 5-acre parcel of land above Waipahu, which led me to the case that was at the center of my story today.
Yes, it sounds a bit crazy, but there’s a false belief out there in the wild that land title can only be transferred by genealogy, transferring to one’s lineal descendants and, therefore, if you are able to track back to distant ancestor who received a land award back in the time of the Mahele in the mid-19th century, then you, as a modern descendant, can now move in and claim “superior” title that trumps modern land title.
And that false narrative is just one of the various nutty ideas being peddled.
It turns out this case, unfortunately, far from unique. Similar extra-legal takeovers of private property have taken place in different parts to the state. There’s more of this going on that most people realize.
There are, of course, legitimate challenges that have and will continue to be raised in cases of disputed land titles, including instances of falsified documents, improper adverse possession, or negligence that resulted in valid past claims being lost, overlooked, or ignored. The point is that these are challenges based on whether there is an unbroken chain of title behind any current claim of ownership, not a matter of genealogy.
And there have been other types of occupations of land as part of protests against development plans, against desecration of burial grounds, loss of public beach access, or displacement of residents. Those are different in kind from the claims of “heirdom” being heard now.
Here’s where I ran into problems reporting on the story.
Truth be told, I can’t help appreciating some of those involved on this craziness.
Key participants are passionate about the need to improve the lot of modern Hawaiians. They’re confronting the reality that Hawaiians are disproportionately impacted by poverty, unemployment, houselessness, imprisonment, health issues, and poor educations. They’re willing to sacrifice to improve their communities. They’re articulate, unafraid to stand up to authority. These are traits I’ve been impressed by and have to admire. If they weren’t enthralled with a bunch of nutty beliefs, including things that can easily be traced back to antigovernment groups on the US mainland and other conspiracy theorists, they could be very effective advocates.
But acting on the basis of these false beliefs about land title, some are now facing criminal charges that are no laughing matter. Felony charges are pending on Maui involving a similar land takeover, and one person in that case has pleaded guilty to 2nd degree burglary, a Class C felony, as part of a plea agreement with prosecutors.
Another incident in the same Maui case resulted in one man being shot during an altercation between a lessee and a group of “squatters” claiming ancestral kuleana rights.
I’m very concerned that these things don’t end well.
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Thank you Ian for challenging the falsehood that land title from Royal Patent Deeds granted during the Mahele can be passed only through genealogy. One version of the falsehood that “allodial title” can be transferred only through genealogy is asserted by Keanu Sai who falsely states that the rights pertaining to gathering and beach access were what he calls “native tenant rights.” But there was absolutely nothing in the Mahele that limited those rights to “natives.”
A careful reading of the Hawaii Constitution as amended in 1978, Article XII, Section 7, will confirm that it refers to rights which were customarily and traditionally exercised by native Hawaiians, but does NOT say that those rights did not also customarily and traditionally pertain to non-natives; and does prohibit other ethnicities from also exercising those same rights today. Indeed, all subjects of the Hawaiian Kingdom regardless of race had the same rights regardless whether they were native-born or immigrants who were naturalized. Why should the State of Hawaii today engage in racial discrimination which was not practiced in the Kingdom?
The racial exclusivity attributed to Article XII, Section 7, and especially in the PASH decision, is illegal under the U.S. 14th Amendment equal protection clause, and morally repugnant as “systemic racism” or “institutional racism” comparable to Jim Crow laws in the old South. For each program, either open it so all races have access or shut it down. If “Native Hawaiians” are truly the most needy, then they will receive most of the help if help is given based on need alone.
Article 12 Section 7 of the Hawaii Constitution grants special rights for “traditional and customary practices” interpreted under the PASH decision to include trespassing for shoreline access, religious practices, or gathering certain materials. The pono way to honor that provision while also honoring equality under the law is to extend the traditional and customary rights of Native Hawaiians to all citizens. In the Kingdom those rights were for everyone regardless of race (In 1848 “hoa’aina” meant “tenant” not “native tenant”; “kanaka” meant race-neutral “person”).
The phrase in the Mahele laws beginning in 1848 and culminating in the Kuleana Act of 1850 is: “koe nae ke kuleana o na kanaka.” The individual word whose meaning has morphed is “kanaka.” When private land ownership was created by granting royal patent deeds during the unfolding stages of the Mahele, chiefs were given huge swaths of land, while peasants living on and farming individual parcels were given the right to have fee-simple ownership of their parcels. The problem was that the chief’s land completely surrounded the peasant’s small parcel, thus making it necessary for a peasant to trespass through the chief’s land in order to gather materials necessary for daily life, or to go to the ocean for fishing. So in the interest of what we today might call “social justice” or “equity” between ali’i and maka’ainana, the chief’s royal patent deed gave him ownership “but reserving the rights of the people” [for gathering or shoreline access]. That Hawaiian phrase “koe nae ke kuleana o na kanaka” today is always translated to mean “reserving the rights of the native tenants.” However, there was nothing racial about the word “kanaka” back in 1850, although today it has come to refer to so-called “Native Hawaiians.” The word “kanaka” simply meant person, or human being, with an implication that it might be referring to a servant or peasant. If you look up “kanaka” in the big Pukui/Elbert dictionary you will find no racial terms. Furthermore, the word “kanaka” does not mean “tenant” — that word is “hoaaina.” Although non-natives made up only a small percentage of Hawaii’s population in 1850, the rights reserved to the “kanaka” in the Kuleana Act were reserved for ALL the “people” regardless of race and regardless whether they were tenants under a particular chief.
The Hawaii Constitution Article 12 Section 7, and also the PASH decision by the Hawaii Supreme Court, include racial restrictions which are modern distortions and simply do not grow out of the Mahele or the Kuleana Act. “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.” The traditional and customary rights of native Hawaiians from before 1778, and still possessed under the Kuleana Act of 1850 — those terms describe what rights are being referred to, but those terms should NOT be construed as limiting those rights to members of any particular racial or ethnic group. By interpreting those rights to be possessed by ALL Hawaii’s people, we would ensure equality under the law for everyone including ethnic Hawaiians.
While it’s quite a stretch to suggest that customary access rights for such practices as gathering subsistence materials should extend to non-Hawaiians who were not present and thus never practiced such customs at the time those rights were first deemed necessary, one problem with providing special rights based on race at all is that some beneficiaries of those rights begin to imagine they enjoy a plethora of additional rights or are not subject to any laws they find inconvenient or don’t personally agree with since they’re “your” laws and not “our” laws.
In the context of the interaction between kingdom of hawaii jurisprudence and its incorporation to following administrative entities
Sister jurisprudence of which all share the incorporation to same base common law … Native would not be a race determination of beneficiary but that of citizenship and subsequent lineal beneficiary rights/ enjoyment.
Case in point rice vs cayetano…
The rice family being descendents of citizens thus are beneficiaries of that entitlement to the same as beneficiary of endemic peoples.
It’s not a question of race but of the citizenship of ancestor at the time acts established the line of beneficiary rights/enjoyment.
Thank you for another extremely informative and well researched article. I really appreciatel that you go the extra mile in your research and tackling of stories that aren’t covered well and/or exposed elsewhere. Also, the commentors on your blog are informative and helpful as well, as Ken Conklin’s post above exemplifies.
By the way, the situation described here is a perfect example of why we buy title insurance. The title insurance company should step in and defend your ownership of the property against bogus claims like this, in most cases. It wouldn’t undo all the damage, but should help. (Ex title guy here ..)
This is a very interesting topic. Thank you Ian, for your superb work, keeping us informed. Also thanks Mr Conklin for your historic details and general input.
Ask any Hawaiian family what happened to their land and over and over you will hear about quiet title and fraud. As Native Hawaiians continue their exodus from Hawai?i, we need to ask why and what can be done to reverse this so that kanaka can live in their ancestral homelands.
Many are entitled to HATE KEN CONKLIN for His statements, they are blunt, specific, truthful, even painful. The summation of these factors, also leave a crisp, consistent conclusion. After which, no debate is required, nor relevant.
I disagreed once with Ken Conklin concerning, Ian’s new found brother, He was without emotion, cold and in hindsight painfully correct.
In conclusion, with one clarification on Kuleana Lands, a minority of parcels were not properly conveyed and a few claims have been awarded and upheld. After division of 100-300 genealogical claimants, small shares or settlements are divided into an entire parcel.
Often leading to more disagreements and lawsuits within the prevailing Ohana.
The Hawaiian Community needs to focus on enacting legal State Constitutional changes.
The last State Con Con was In 1978, it’s way past time for a tune up, the next opportunity will be in 2030.