Category Archives: Hawaiian issues

Civil disobedience then and now

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There’s a column in Wednesday’s edition of West Hawaii Today by Leningrad Elarionoff, who was the arresting officer at the May 1974 protest by Sonny Kaniho and his supporters, who symbolically occupied a Waimea pasture leased to Parker Ranch by the Department of Hawaiian Home Lands (“My Turn: Kapu aloha in 1974 practiced the real meaning“).

Elarionoff, who was later elected to the Hawaii County Council, describes the differences he sees between the aloha displayed by Kaniho in 1974, and the “Kapu Aloha” of those blocking access to Mauna Kea, from the perspective of being an officer on the scene. In his case, the only officer on the scene in 1974, as I recall.

The day arrived and Kaniho, with numerous friends and supporters, gathered at the gate of the property on the Kohala Mountain Road. At the planned hour, they lifted the gate off the hinges and entered the property. The Parker Ranch security called the police and I proceeded to the scene. On my arrival, a group of protesters had already gone beyond the gate. I parked my patrol unit on the roadside among those observers who, not wishing to be arrested, remained on public land. The security personnel gave me a ride to the protest group gathered a ways up on the property in question.

At my arrival, the group surrounded me and we talked respectfully among ourselves. Now the fun part. I took down their names and informed them all that they were under arrest for trespassing. I then informed them to meet me at the police station for booking.

As we left the scene, they worked with the security guard to reinstall the gate. Kapu aloha was demonstrated by the protesters. They showed respect and drove their own vehicles to the police station for processing. Their beef was with the Hawaiian Home Commission, not the arresting officer.

In the Maunakea protest, the arrested kupuna refused to move and had to be carried away for processing. Their idea of kapu aloha was to make it inconvenient for everyone not actively supporting their cause. Had the Kaniho demonstration practiced the same kapu aloha as the Maunakea group, one cop carrying all 18 of them would have been an impossible task. Again, their beef was with the Hawaiian Homes Commission, not with me, the arresting officer.

I was among the group arrested that day. To me, a Honolulu kid, it was amazing to be in that pasture looking down to the ocean beyond. It seemed like we were sitting at the top of the world. And when the Hawaii County police officer arrived on the scene, it was Sonny’s cousin, Leningrad.

I later wrote: “You couldn’t make this up–being arrested at the top of the world by a Hawaiian cop named Leningrad.”

Leningrad then writes that we were all asked to meet him at the Waimea police station for processing.

To tell you the truth, I don’t recall this part of the tale. And the photos that I’ve posted in the past of the protest don’t include a stop at the station. While on the mountain, Leningrad did ask to see identification from each of us, which was then used to issue everyone a penal summons.

My recollection is that those of us from off-island were free leave, with the understanding that we would receive a summons to appear in court. Perhaps the Big Island residents were processed at the station. I’ll have to tap into someone else’s memory to resolve that discrepency.

But Elarionoff’s description of good feelings between himself and the Kaniho protesters on the day of our trial was certainly accurate. Several of my photos show him in friendly interactions after our trial ended in acquittal. In the photo below, a hat was being passed around to collect money for refreshments, and it was waved in front of Elarionoff in a good-natured way, and he seems to have had good laugh about it.

Another online resource: Caselaw

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I stumbled onto this online resource this morning by accident. I was reading a law journal article on native Hawaiian land rights which referenced an 1859 Hawaii court case about mortgages. I’m always interested in checking out the footnotes, so I searched online for the case.

And that search led me to Harvard Law School’s Caselaw Access Project. This appears to be a gold mine of legal decisions.

The Caselaw Access Project (“CAP”) expands public access to U.S. law. Our goal is to make all published U.S. court decisions freely available to the public online, in a consistent format, digitized from the collection of the Harvard Law Library.

CAP includes all official, book-published United States case law — every volume designated as an official report of decisions by a court within the United States.

Our scope includes all state courts, federal courts, and territorial courts for American Samoa, Dakota Territory, Guam, Native American Courts, Navajo Nation, and the Northern Mariana Islands. Our earliest case is from 1658, and our most recent cases are from 2018.

The project stats page says it includes 18,251 Hawaii court decisions with a total of 105,463 scanned pages. In addition, the 1,693,904 federal court cases appear to include published decisions of the Hawaii District Court and 9th Circuit Court.

There’s a state by state index. Here’s the Hawaii entry.

Hawaii
D. Haw.: Reports of cases determined in the United States District Court for the District of Hawaii. (1900-1917)

Haw.: West’s Hawaii Reports (1994-0)

Haw.: Hawaii Reports (1847-1856)

Haw. App.: Hawaii Appellate Reports (1980-1994)

This is a site that you may want to bookmark for future reference.

A brief history of land titles in Hawaii

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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.

Another go-round on those Royal Patents

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“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.