Land is Power

By D.F.
Honolulu Weekly
As printed in the Honolulu Weekly

Wednesday, January 27, 1993

Integral to any concept of Hawaiian sovereignty is the issue of control over Hawaiian lands. To be sovereign, after all, you have to be sovereign over something. In a completely independent sovereign nation, of course, the land base would comprise all of the Hawaiian Islands. Both the Office of Hawaiian Affairs’ and Ka Lahui’s nation-within-a-nation models specify that the land base for a Hawaiian nation should come from the two types of land from which, under current law, Native Hawaiians are entitled to benefit: the so-called “ceded” lands and the Hawaiian Home Lands (more on both of those below).

Hawaiian land tenure before Westernization

Before European contact, private ownership of land was an unknown concept in the Islands. The Islands were, however, divided into several kingdoms, each controlled (not owned) by a high chief. The chief would retain direct control of some of the land for himself, then distribute the rest among lesser chiefs who were loyal to him. They, in turn, would keep control of some land and disperse the rest to their followers. When a high chief died or was conquered, the kingdom’s entire land-distribution system was redrawn according to the preferences of the new high chief, thereby reinforcing the idea of land stewardship, rather than ownership.

The basic Hawaiian land unit was the ahupua’a, ideally a self-sufficient, pie-shaped portion of land, ranging in size from 100 to 100,000 acres, which incorporated both agricultural and ocean resources. Each ahupua’a was administered by a chief or konohiki (land agent), who enforced a system of kapu customs designed to preserve ecological balance.

In 1795, Kamehameha I, with the help of the newly arrived Europeans and their guns, gained control of all the islands save Kauai, which later swore allegiance to him in 1810. When he died in 1819, his son, Liholiho, did not redistribute land grants as had been customary, instead allowing most of his father’s sub-chiefs to retain their portions. This greatly relieved the many foreigners in Hawaii who were by then getting rich off land granted them by Kamehameha I.

In 1825, when Kamehameha III ascended the throne at the age of 12, the Council of Chiefs allowed chiefs to retain their lands when the king died and permitted hereditary succession of land. By the late 1840’s, foreigners who wanted a more secure form of land tenure to protect their agricultural interest were applying considerable pressure on the king. In 1840, the year he drew up Hawaii’s first constitution, Kamehameha III formalized the right to property belonged to the chiefs and all the people, with the king as trustee.

The Mahele

The pressure on the king continued, and in 1848 true ownership of land came to Hawaii, when the king accepted a land apportionment plan, called the Mahele, or division. Under the mahele, the land was split up into three parts: the crown lands held by the king himself, the lands held by the chiefs and those held by the government on behalf of the public. The Mahele turned out to be an unmitigated disaster for the maka’ainana, the ‘people of the land,’ or commoners. While the original intention of the division was to provide a third of Hawaii’s lands to the maka’ainana, they wound up with much less than one percent of the total land. In 1850, further legislation was passed allowing ownership and conveyance of land regardless of citizenship. The stage was set for a massive land grab by Westerners. A historian named Levy put the results succinctly: “With a permanent population of fewer than two thousand, Westerners took over most of Hawaii’s land in the next half-century and manipulated the economy for their own profit.”

When those manipulations finally resulted in the illegal overthrow of the monarchy and the subsequent annexation of Hawaii to the U.S. in 1898, the former government and crown lands, totalling almost 1.75 million acres, were ceded to the U.S. government. The U.S. held title to these lands and was able to keep a good portion of them; it designated the territorial government their administrator. In 1920, moved by what had become the desperate condition of the Hawaiian population but nonetheless manipulated by sugar-growers, Congress’ Hawaiian Homes Commission Act set aside about 188,000 acres as Hawaiian Homestead land to be settled by anyone with 50 percent or more Hawaiian blood. In 1959, when Hawaii became a state, the public lands ceded at the time of the overthrow were transferred to the new state government, along with responsibility for disbursing the Hawaiian Home Lands. These two types of land – ceded lands and Hawaiian Homes – constitute the land base upon which both OHA and Ka Lahui would build a Native Hawaiian nation. Both have been the source of serious breaches of trust by both the U.S. and state governments.

Ceded Land Trust

In 1959, when the Admission Act turned responsibility for the ceded lands over to the new State of Hawaii, the federal government retained more than 350,000 acres, mainly for national parks and military installations. There are many instances of abuse of ceded lands by the federal government – the bombing of Kahoolawe and Makua Valley, for example. Sovereignty advocates say that receiving reparations for such abuses will be one of the functions of a Native Hawaiian government.

The state, too, has been guilty of abusing the ceded lands trust. The state was mandated to use funds generated by the selling or leasing of ceded lands for five purposes:

• To support public education
• To better the conditions of Native Hawaiians (those with 50 percent Hawaiian blood, as defined in the 1920 Hawaiian Homes Commission Act)
• For the development of farm and home ownership
• To make public improvements
• And to provide land for public use.

For the first 20 years of statehood, the state’s Department of Land and Natural Resources managed these ceded lands virtually without scrutiny. The state had interpreted the Admission Act’s mandate to mean that it could use income derived from the ceded lands for any one of the five purposes; it chose education.

At the 1978 state Constitutional Convention, in the midst of the Hawaiian Renaissance, it was recognized that the state was required to use income from the lands for the benefit of both of two parties: Native Hawaiians and the general public. The Office of Hawaiian Affairs, created at the same convention, was to receive a portion of the income from the ceded lands and use it for the benefit of Hawaiians (but only those with 50 percent or more Hawaiian blood). According to a bill passed later by the state Legislature, OHA was to receive 20 percent of all revenue generated by ceded lands. Between 1980 and 1989, OHA received about $12.5 million dollars in such proceeds. Audits and lawsuits have consistently revealed DLNR mismanagement of the ceded land trust. Among other abuses, DLNR allowed use of ceded lands by other state departments without adequate compensation, and it executed summary land swaps with such private landowners as Campbell Estate (in one case to facilitate geothermal development on the Big Island!). In fact, in 1979 it was discovered that the DLNR didn’t even have an inventory of which state lands were ceded lands and which were not; an inventory was finally completed in 1986. One of OHA’s priorities has been to seek redress from the state for these abuses – last year, OHA Chairman Clayton Hee named a preliminary figure of $112 million in money owed OHA by the state for past uses of the Hawaiian Ceded Lands entitlement.

“The $112 million is only the initial payment,” Hee says. “There will be more. And although the time schedule of payment depends on the state, the amount is accruing interest at the rate of $1 million a month.”

Under one of the federal bills proposed by OHA, the Native Hawaiians Claims Settlement Act, the federal government would be required to return all the ceded lands it currently holds – about 400,000 acres – and pay $10 billion is reparations for past misuse. Under a separate settlement with the state, OHA would receive 20 percent of the cash value of all state public lands and 20 percent of the revenues on the rest of the public land.

The ultimate goal of sovereignty advocates is the transfer of control of the ceded lands directly to a Native Hawaiian government. Members of Ka Lahui object to the OHA proposals, maintaining that a Native Hawaiian sovereign entity must be established first, with entitlements and reparations determined at paid to it later.

Hawaiian Home Lands

By 1920, the plight of Native Hawaiians had become desperate. Their population had been ravaged by disease. By 1900, their numbers had dropped from a conservative estimate of 300,000 at the time of Cook’s arrival (some scholars estimate there were as many as 1 million) to 40,000. Hawaiians were also decimated by social and economic hardship. There was a very real fear among some that the Hawaiian race would become extinct. This motivation, combined with a number of other factors, gave rise to the Hawaiian Homes Commission Act of 1921, which set aside nearly 200,000 acres for settlement by Hawaiians who met the 50 percent blood quota, in the hope that a return to their former agricultural lifestyle would save the Hawaiians.

But the cards were stacked against such agricultural use because the powerful sugar growers, who didn’t want to see their most productive lands – many of which were public lands that they held under lease – being given away to Hawaiian homesteaders, were able to manipulate the legislation. They ensured that severe restrictions were placed on the land that could be used for homesteading; any land that was currently under sugar cultivation, for example, was exempt. (Even the 50 percent blood requirement measure was pushed by the sugar planters to keep too many Hawaiians from applying.)

As a result, the majority of homestead land was arid, inaccessible, poor of soil and otherwise unsuitable for cultivation. Before long, the idea of a return to agrarianism was abandoned, with the lion’s share of homestead awards being simple house lots. Under the terms of the Hawaiian Homes Commission Act, homesteaders could lease a lot for 99 years at $1 per year. Homesteaders could also pass their award onto a qualified relative in case of death (if the relative is a spouse or child, they must be of at least 25 percent Hawaiian blood; other relatives must be 50 percent).

Before statehood, responsibility for managing the homestead program rested in the federal government. After statehood, it was transferred to the state’s Department of Hawaiian Home Lands. For most of its existence, the state’s DHHL had no source of administrative and infrastructure-improvement funding except the “general use” leases it was allowed to grant non-Hawaiians on land “not immediately needed: for homesteading. As a result, more land has been leased to non-Hawaiians on land “not immediately needed” for homesteading. As a result, more land has been leased to non-Hawaiians on land “not immediately needed” for homesteading. As a result, more land has been leased to non-Hawaiians than to Hawaiians. For decades, the administration of the Hawaiian Homes trust went unquestioned. Thanks to recent investigative efforts, however – such as a scathing piece written for the Wall Street Journal by Pulitzer-winning journalist Susan Faludi – the shocking mismanagement of the trust by both the federal government and the state has come to the notice of the public.

As of last June, only 5,889 homestead leases had been awarded, representing just 21.5 percent of the total Hawaiian Home Lands properties, while 47.5 percent was under least to non-Hawaiians. In fact, three non-Hawaiian ranchers on the Big Island held more Hawaiian Homes acreage than all the legitimate Hawaiian recipients combined.

Meanwhile, there are an estimated 14,400 qualified applicants in the Hawaiian Homes waiting list, many of whom have been waiting for 40 years or more. Many more have died waiting.

Incredibly, homesteaders have not, until recently, been allowed to sue either the state or federal governments over breach-of-trust issues involving the Home Lands. The state now allows certain types of narrowly defined suits, but qualified homestead recipients are still barred from sueing the feds for breach of fiduciary duty. Also in partial amends, the state recently gave DHHL over $9 million in back payments for Hawaiian Home Land abuses.

One of the pieces of federal legislation that has been proposed by OHA is a right-to-sue bill, and no doubt pro-sovereignty organizations like Ka Lahui will also place such rights high on their list of priorities.

Both OHA and Ka Lahui have said that, with the advent of sovereignty, control of Hawaiian Home Lands should be transferred to the independent Native Hawaiian body.