The 1850 Masters and Servants Act

#232 in the Moʻolelo series, although it was drafted by William Little Lee, this law constitutes a possible dark mark on the Hawaiian Kingdom government. Mahalo to Anuenue kudu Puhi Adams for reminding me to write about the law.

Hawaiian Kingdom Attorney General William Little Lee has an intriguing and problematic role in the “Middle Kingdom” period – that crucial period around 1850:

As a Harvard-trained lawyer, former student of US Supreme Court Joseph Story, William Little Lee was certainly one of the most able lawyers in the Kingdom at this period, and his background deserves some attention. Merry (2000, 3) considers William Little Lee archetypical enough to begin her book with a description of his position as a joint architect (along with several others) of Hawaiʻi’s legal system:

In October 1846 William Little Lee arrived in Hawaiʻi  … Lee was twenty-five years old and a lawyer. Trained at Harvard University under judge Joseph Story and Professor Simon Greenleaf, Lee had practiced law in Troy, New York, for a year and had been admitted to practice before the Supreme Court of the State of New York. Scarcely a month after his his ship docked in Honolulu, Kamehameha III, the king of HawaiʻI, had persuaded Lee to stay on in the independent kingdom and become a judge in the Honolulu court. By 1847 he had helped to draft legislation creating a new Superior Court of Law and Equality; he was immediately elected its chief justice. In the same year he was appointed to the Privy Council and appointed president of the Board of Commissioners to Quiet Land Titles … Lee … invested in one of the earliest sugar plantations with his friend [Charles Reed] Bishop … By 1850 Lee had penned a new criminal code for the islands, modeled after a Massachusetts prototype, and by 1852 a new constitution.

Sally Engle Merry, Colonizing Hawaiʻi, 2000.

William Little Lee (Source: wikipedia commons)

Lee’s attitude and approach toward working with Hawaiians is apparent in a letter Lee wrote to a friend in 1851:

Certainly they are a kind and peaceable people, with a superabundance of generous hospitality; but with all their good traits, they lack the elements necessary to perpetuate their existence. Living without exertion, & contented with enough to eat and drink, they give themselves no care for the future, and mope away life without spirit, ambition or hope. Now & then we meet an enterprising native, climbing up in the world, and I feel like crying bravo! my good fellow! bravo! but the mass of the people, where are they? I consider the doom of this nation as sealed, though I will labor on without ceasing, hoping for the blessing of heaven to bring some change (Merry, 2000, 5).

Lee was not alone in his sentiments on the “protestant work ethic.” This idea was so ingrained in the inner circle, that “several laws enacted in 1839 and 1840, and later compiled in the Laws of 1842, permit[ing] the extinguishment of tenant rights in limited circumstances,” including the “dispossession of tenants because of idleness, where such idleness is proven at trial,” public purposes and road building (PASH v. Hawaiʻi County Planning Commission, 1995). Forbes (2000, 7) notes that Lee was chosen for a committee of three that would revise the constitution in 1850-51 and produce the Constitution of 1852 under Kauikeaouli.

With that background, let us turn to the masters and servants act – Wilma Sur asks whether the law constitutes a “brutal [form of] slavery:”

In 1850, Lee drafted the Masters & Servants Act, which stated that workers (servants) had to provide work to their employers (masters) according to the contract.   Contracts often changed without notice to workers.  If workers were exploited and abused during their jobs, they could not run away as that would breach their contract, punishable by imprisonment or redemption, plus interest, of lost hours.  There were cases of Kanaka Maoli and early immigrant Chinese workers being beaten by their employers (Sur).

Sur, Wilma. “Hawai’i’s Masters and Servants Act: Brutal Slavery?” 31 U. Haw. L. Rev. 87

More thoughts on Bill 499 (2021) providing for extensions of “ceded” lands leases

#231 in the Moʻolelo series

Republican State Senator Kurt Fevella (Ewa Beach) stated that governor Ige should veto Bill 499. He wrote in Civil Beat:

I am not opposed to development. However, what I do object to is the fact that this measure provides an exemption for the University of Hawaii but does not exempt lands managed by the Department of Hawaiian Home Lands.

Some have been led to believe this bill only affects lands that are under the Board of Land and Natural Resources. This is not the case. DHHL, as a state agency, through the Hawaiian Homes Commission Act, must follow HRS Chapter 171 when leasing trust lands.

As specified in Section 204 of this Act, DHHL is prohibited from extending general leases if those lands are not required for homestead leasing. By not exempting DHHL like we have done for the University of Hawaii, this bill is a violation of the Hawaiian Homes Commission Act and is unconstitutional based on federal law that preempts state law.

On Think Tech, former Governor John Waiheʻe interviewed Hawaiian attorney Colin Kippen, who felt that this was a bill preferred by lessees, who benefit from low-priced, old leases of ceded lands (presumably from the time of statehood, almost 65 years ago, since the typical lease is 65 years).

The Other Side

Itʻs important to listen to the opposition in order to make a fair assessment in an issue such as this one, which is multi-faceted. A legislator who saw my testimony (who I wonʻt name, but is a supporter of Bill 499) explained to me that much of the support for this bill centers around Hilo – the local businesses that benefit from the nearly 65 year-old leases might go out of business if leases expire and they are outbid by national US chains in the same industry. (Hardware and grocery stores were mentioned). But it could be that other businesses stand to benefit. As Fevella wrote:

Currently, nearly 3,000 acres under general leases would be subject to this bill, and of these leases less than 1% are leased to Native Hawaiians. On Hawaii Island there are 72 leases on 740 acres, on Kauai there are six leases on 72 acres, on Molokai there are five leases on 1,762 acres and on Oahu there are 39 leases on 248 acres. This information can be found in the 2020 DHHL Annual Report.

Who Benefits?

In my academic training, we were trained to ask “whatʻs at stake?” It’s useful to ask who benefits from this bill, and the answers are not clear. One phrase that is ambiguous is “government leases” which brings up the possibility of military leases being among the beneficiaries. This is particularly relevant as the lease for Makua, among other areas near their 100 year expiration date.

A History of the 21st Century

#230 in the Moʻolelo series, here I try to determine what events in the years since 2000 pass the threshold for being considered historical – it is a difficult process to view your own time from the lens of history and here I just take a first stab at such a process, focusing mainly on how events affected Hawaiians.

In 2000, the Rice v Cayetano case had just been settled at the Supreme Court and the Hawaiian community was reeling from a new climate in which one of the few exclusive, “special” rights Hawaiians had was undermined. Attacks followed on all the Hawaiian trusts, most unsuccessful: Hawaiian Homes, OHA itself and Kamehameha Schools admissions policy, in an era I call the “backlash.” Opponents, who later organized into institutional form in the Grassroot Institute, sometimes used civil rights concepts against these programs, arguing that they were not “colorblind.” In 2006, Kamehameha briefly lost its admissions policy, but this decision was reversed in en banc review. The Akaka bill appeared in multiple forms between 1999 and 2012, more and more “watered down” in my view, but more importantly, using strange logic to circumvent the use of race in the selection of leadership. The bill ended its 13 year run after the death of Senator Daniel Inouye and retirement of Senator Daniel Akaka.

At the same time, between 1999 and 2001, the groundbreaking Larsen v. Hawaiian Kingdom case took place at the Permanent Court of Arbitration at The Hague, Netherlands. The case concerned a Hawaiian national, Lance Larsen, who had been incarcerated for driving without license plates and claimed that the Acting Hawaiian Kingdom, led by Keanu Sai, should have protected his rights. The case at The Hague centered around whether the United States was required to participate in the proceedings (it had explicitly refused to do so), but the subtext was really whether the Hawaiian Kingdom existed as an Independent State. The outcome of this case has been debated and many are inconclusive as to its meaning, but the record in the PCA does list the Hawaiian Kingdom as a “State” i.e., sovereign country.

In 2002, Republican Linda Lingle was elected Governor and she initiated the most aggressive distribution of Hawaiian homes leases in the program’s history – about one third of all leases in the programʻs history were disbursed in the first few years of the Lingle administration. In 2010, Neil Abercrombie was elected in what turned out to be one term. Abercrombie immediately got Bill 195 passed, granting to OHA the lands of Kakaʻako Mākai, valued at the time at $187 million, to settle claims to ceded lands revenue up to that point (not future revenue due).

In 2014, the Department of Interior held hearings on most islands and sites on the US continent (some in Indian casinos) asking for feedback on a proposed “rule change” that would allow for the recognition of a Hawaiian national entity akin to an Native American nation – what we now call “Fed Rec.” About 98% percent of oral testimony in Hawaiʻi was in opposition to the rule change and the term “occupation” was often heard at the hearings (I attended the hearing at the State Capitol), showing the growth of the independence movement. When written testimony was recorded later, the balance was 65% in favor of the rule change and 35% opposed, according to a count made by Law Professor Williamson Chang. (Most of the written testimony in favor were form letters provided by the Hawaiian Civic Clubs).

In conjunction with this nation-building effort, the Native Hawaiian Roll Commission, called Kanaʻiolowalu, was organized, followed by a constitutional convention, called Naʻi Aupuni. The certification of the election of delegates was prevented, however, by the US Supreme Court and so the convention occurred with all candidates admitted as “participants” (the couldnʻt be called delegates on account of not being elected). The election of Donald Trump in 2016 prevented the continuation of these processes, though they could continue under the Biden administration.

Moʻolelo Pōkole: Summary of the Reign of Kalākaua

#229 in the Moʻolelo series

Kalākaua’s reign is one of the most controversial and subject to debate among historians. A consensus used to exist that, while a visionary, Kalākaua was a flawed leader due to his excesses of spending and poor choices of advisors. Recent scholarship is more positive and views Kalākaua as a competent ruler who was a victim of historical circumstances. Kalākaua’s goals included strengthening Hawaiian culture – this was related to his motto “Hoʻoulu Lāhui” – and modernizing Hawaiʻi through technology and science. These goals required revenue, which he planned to gain through a Reciprocity Treaty allowing Hawaiʻi sugar to be exported to the US without tariffs.

For example, on Kalākaua’s diplomatic entourage that was sent to Samoa, the received narrative is one of a disastrous fiasco. But Kalani Cook reframes this mission in his book Return to Kahiki as a legitimate attempt to build Polynesian connections, and an outright Confederation of Pacific states. The fact that the chief Malietoa was overthrown during the mission was not Kalākaua’s fault, nor was it foreseeable. In fact, Western imperialism was behind the coup.

Similarly, Tiffany Lani Ing has reframed Kalākaua’s entire reign in her book Reclaiming Kalākaua, focusing on his very impressive reception everywhere he went in the world during his world tour, especially (and notably) in America. More on that coming soon.

While the 1876 Reciprocity Treaty brought prosperity to Hawaiʻi, it also created a dependence on the US market for sugar. This led to the Bayonet Constitution, which stripped the King of power, transferring it to his cabinet. Many historians believe that Kalākaua’s reign paved the way for the 1893 overthrow of the Hawaiian monarchy.

Clarification on my HB 499 Testimony

#228 in the Moʻolelo series

I realized that there could be some confusion over my testimony (which went a bit viral online) opposing HB 499, because it says that the State is making private property into public and the reverse: making public property private. They are doing both in a way.

1. The Crown Lands

The Crown Lands, specifically, are the lands of the Hawaiian Monarch – private property. And as I say in my testimony, never subject to eminent domain, so logically they remain private. Iʻm not saying that we know who the heir is, or even that there is an heir, but I canʻt see how they escheat to the State even then. the case that determined their status was called In re: the Estate of HIs Majesty Kamehameha IV, which, as I said, determined that the inheritance of these lands would go to Kamehameha V, not Queen Emma. Iʻm not completely sure about this (to be transparent), but it seems that the status of these lands were not fee simple, but a form of land tenure called fee tail. Whereas fee simple is inherited by “all the heirs of oneʻs body,” fee tail goes to a specific heir. One doesnʻt hear of fee tail in American real estate, this is a very British form – itʻs how large estates were inherited by the eldest sons, a practice which was unfair, but used to keep estates intact – called primogeniture. So it seems that the Crown Lands were fee tail, but in this case passing to the heir to the throne, who was presumed to be the eldest son of the King! But when it came to brothers, like Kamehameha IV and V, they had to examine it in court. None of this makes the Crown Lands public! But thatʻs what the US Supreme Court found in 1910 (not being able to understand fee tail?), as I say, a very dubious conclusion, especially given the recent overthrow. Hence, the State is leasing private lands.

2. Long leases = “private” property

My argument was not that the State was literally creating private property, but virtually, by using such long leases – longer than a lifetime. In the case of 999-year leases, so much longer as to be ludicrous to call it public land.These “leases” initiated by Sanford Dole, will expire around the year 2900! 99-year leases (the current bill could add 40 years to the standard 65) are not, of course, millennium-long leases. But century-long leases outstrip the life expectancy of Hawaiians (which not long ago was 67 years), who should expect to see some benefit from these lands given the provision in the Admissions Act that one of the five purposes of the ceded lands is “the benefit of Native Hawaiians.” To lock these leases up when the status of Hawaiians’ relationship with the State, Federal and International communities are, as they so often say, “a political question,” deprives Hawaiians of hope of these government lands playing a role in self-determination. Self-determination is a value that the international community has agreed all peoples, including and especially Indigenous peoples, deserve as a fundamental group (and human) right.

The Committee of Safety

#227 in the Moʻolelo series

Albert Wilcox was a former Premier under the queen, and had joined the Committee of Safety because he felt aggrieved and being dismissed from this position. But when the committee of safety voted to overthrow the queen and apply for annexation to the United States, Wilcox voted against that Resolution which had been forwarded by Lorrin Thurston. The next day he resigned from the Committee of Safety and he wanted nothing to do with the overthrow of the monarchy. This shows that, like Iʻm finding with people such as John F. Colburn, motives of the actors in this drama were complex. Of the 13 members of the committee four were American, four were Hawaiian citizens born of American parents, two were German, one was Scottish and one was Australian.

Lorrin Thurston

Note: Lorrin Thurston borrowed the name “Committee of Safety” from the French Revolution, which he was a student of, and thought of himself as a revolutionary in a similar vein.

The letter from this “Citizens’ Committee,” reprinted here from The Hawaiian Kingdom blog, included the names of the “insurgents” as the blog describes them:

Hawaiian Islands,
Honolulu, January 16, 1395.
To His Excellency John L. Stevens,
American Minister Resident:

SIR: We, the undersigned, citizens and residents of Honolulu, respectfully represent that, in view of recent public events in this Kingdom, culminating in the revolutionary acts of Queen Liliuokalani on Saturday last, the public safety is menaced and lives and property are in peril, and we appeal to you and the United States forces at your command for assistance.

The Queen, with the aid of armed force and accompanied by threats of violence and bloodshed from those with whom she was acting, attempted to proclaim a new constitution; and while prevented for the time from accomplishing her object, declared publicly that she would only defer her action.

This conduct and action was upon an occasion and under circumstances which have created general alarm and terror.

We are unable to protect ourselves without aid, and, therefore, pray for the protection of the United States forces.

Henry B. Cooper,
P.W. McChesney,
W.C. Wilder,
C. Bolte,
A. Brown,
William O. Smith,
Henry Waterhouse,
Theo. F. Lansing,
Ed. Suhr,
L. A. Thurston,
John Emmeluth,
Wm. B. Castle,
J.A. McCandless,

Citizen’s Committee of Safety.

Testimony Against HB 499 (2021)

Aloha kākou, my name is ʻUmi Perkins, Iʻm a political scientist and Hawaiian history teacher. I live in Aiea, Oahu. Iʻm testifying in opposition HB 499 extending leases on ceded lands, and calling upon the Governor to veto the measure.

My main opposition to the lease extension is the clouded title of the so-called ceded lands. In particular, the Crown lands were indisputably private lands. I know this because Iʻve held in my hand a ledger from the Hawaiʻi Archives the was entitled “Private Lands of Kamehameha IV.” While the US Supreme Court ruled in Liliʻuokalani v. United States in 1910 that these lands somehow became public – this related to their passing to Kamehameha V rather than Queen Emma – most citizens, and certainly most legislators know that there is only one way to make private property public – eminent domain. Nowhere is it argued that these lands transferred the public ownership through eminent domain. This means the State is leasing private lands. We should ask ourselves if the Supreme Court’s ruling was valid given the unlikeliness that it would rule against itself and in favor of a Monarch that the US deposed. We can at the very least ask questions around the legality of leasing the portion of the ceded lands that appear, by any reasonable measure, to be private property.

Further, I would remind legislators and the public of the homesteading program initiated by Sanford Dole to encourage settlers mainly from California, which created 999-year leases. If we think about how long that is – 999 years ago was the middle of the Middle Ages in Europe, but more importantly it is longer than the real estate system we are currently in has been in existence. In other words, a lease that long is for all intents and purposes, private property. But it remains government land. And in this case land belonging to a government that the United States Congress and President admitted in 1993 to have illegally overthrown. HB 499 does not call for 999-year leases, but it does allow leases that are longer than a lifetime and so in a similar way, makes virtual private property out of public.

I will conclude by reminding lawmakers that the question of what the State is able to do with ceded lands is by no means completely up to them. This question was, as most know, the subject of a Supreme Court case over the sale of public lands in 2009, Hawaiʻi vs. Office of Hawaiian Affairs. While the Supreme Court ruled that the State was not restricted in its land transactions by the Apology Resolution, this was only the case “until claims over such land are resolved.” This case shows that restrictions do exist, and because such claims remain unresolved the State has a duty, it would appear, not to dispose of control these lands for such long periods, effectively creating private property out of public lands that are to be held in trust, in part, for the benefit of Native Hawaiians.

I call on the Governor to veto HB 499. Mahalo nui ia ʻoukou. Aloha.

Moʻolelo Pōkole: Little-known facts about the period of the overthrow

#226 in the Moʻolelo series, this vignette consists of some facts – and I think they are solid enough to call facts, though some may be debatable – which are little-known about some historical figures right around the time of the overthrow, like Robert Wilcox, John F. Colburn and Liliʻu herself.

It is, in my view, little-known that:

1. Robert Wilcox was first the confidante of the Queen and then later on her opponent as head of the Liberal Party, which was openly anti-monarchy (though not pro-annexation).

2. Wilcox hated Marshall Wilson because of the latter’s influence over the Queen – it was rumored that they were lovers (no solid evidence exists for this however).

3. John Francis Colburn was a close friend of Lorrin Thurston. I had always assumed that Colburn was on the side of the queen, but this was not the case. In fact the queen at one point was forced into naming a cabinet entirely comprised of reform party members, just as her brother had after 1887.

John Francis Colburn IV

4. While it is well known that the queen wrote a new constitution in 1893, it is not as well-known that she had a ceremony for its promulgation. And it was at the ceremony that her ministers advised her against taking such an act. And they all protested that they had not yet read the new constitution! This, Despite the fact that one of them, Petersen, and had the document for an entire month!

Samuel Parker was among the cabinet members who discouraged Liliʻu from promulgating the 1893 Constitution – she asked for his resignation, but he could only be dismissed by the legislature.

He had apparently (or at least it was Liliʻu’s understanding) shown the draft Constitution to lawyers around Honolulu and found no objections, and here he was saying he hadnʻt read it!

Colonialism – Part 2: More thoughts

#225 in the Moʻolelo series, this is a little more academic set of musings than the usual fare of late

Nicholas Thomas (1994, 4) re-contextualizes the concepts of colonialism and governmentality in the field of cultural studies:

In cultural theory since Foucault, the idea of government is central to the critique of language, knowledge and narrative, because it presupposes their constitution in and through power relations … For Foucault, the ‘governmentality’ that these knowledges and programmes amount to is not a transhistorical feature of all polities, but a distinctively modern development that displaced other modes of political power and state dominance.

Michel Foucault in Brazil, 1974 (Source: wikimedia commons)

Thomas (1994, 2) notes that the term ‘colonialism’ 

is not best understood as primarily as an economic and political relationship that is legitimized or justified through ideologies of racism or progress. Rather, colonialism has always, equally importantly and deeply, been a cultural process; its discoveries and trespasses are imagined and energized through signs, metaphors and narratives; even what would seem its purest moments of profit and violence have been mediated and enframed by structures of meaning.

While Thomas argues that too narrow a definition has been used for colonialsm, and that this should be broadened, others posit the reverse – that the broad, cultural dimensions of the term ‘colonialism’ have obscured the political history in Hawai’i case (see Sai, 2008). Likewise, governmentality is intimately bound up with notions of law and property in Hawai’i, because of the contested governmental regimes after 1893. The authority, legality and legitimacy of those governments’ actions depends on the premises one accepts in evaluating them.

The Māhele

#224 in the Moʻolelo series, this is not exactly the same as the post “A New View of the Māhele,” but is more along the lines of “answering commonly asked questions about the Māhele.” In fact, it was prompted by a question from Gary Kubota (author of the play Koʻolau about Kaluaikoʻolau) about the land gained by makaʻāinana in the related Kuleana Act.

Māhele means division or “share” – Kameʻeleihiwa suggests that this might mean “to share” as she argues for a communitarian interpretation (or critique more likely) of the Māhele process. In my work I suggest that this might mean “one’s share,” as in each makaʻāinana male over age 20 was to get their share of the lands of the Kingdom.

The basis of the division was in the Constitution of 1840, in which Kamehameha I was considered to have “management of the landed property of the Kingdom [though] it was not his own private property.” The Māhele would change this, creating fee simple title, also called allodial (or alodio in Hawaiian). In my dissertation, I show that this process, rather than stripping makaʻāinana of lands, legally embedded makaʻāinana rights in land.

The Māhele itself was a division only between the King (Kamehameha III) and 252 chiefs, who gained land in their capacity as konohiki, i.e., one got land because of use, not merely rank or status. Kauikeaoiuli argued that he was, in addition to being King, the highest konohiki, resulting in his receiving 60% of all the lands of the Kingdom. This might make him seem greedy, but the next day he “gave away” two-thirds of this land, creating the Government lands of the Kingdom, as distinct from his personal, private Crown Lands. (The State of Hawaiʻi has mainly failed to keep track of this private-public distinction in the combined lands that they now hold in trust “for the benefit of Native Hawaiians” (Section 5c of the Admissions Act).

This second split created a division of 23% in the hands of the King, 39-40% held by the Aliʻi/Konohiki and 37% as public Government lands. In my view, Kauikeaouli did this in order to create a pool of lands from which makaʻāinana could draw, rather than claiming lands against their own district chiefs (who might have an incentive to discourage their claims). Some chiefs persuaded their “tenants” (as makaʻāinana were called – incorrectly in my view, as they were the owners of the lands, not renters) to remain living “in the old way” to the long-term detriment of makaʻāinana.

In July, 1850 a law passed allowing foreigners to buy land – they bought land from the chiefs (hence the 39-40% figure above). In August, 1850, the Kuleana Act passed, allowing makaʻāinana to claim land, which claims they were asked to submit prior, in 1848. (There is some debate about this “deadline”). The outcome of the Kuleana Act division was that about 13,000 makaʻāinana filed claims, of which about 8400 received the lands claimed. There are anecdotal reasons why about 5000 claims were not awarded – duplicate claims, etc. The population of Native Hawaiians in 1850 was about 88,000. Of these, we can presume 44,000 were male and about 33,000 were adult males. So only about 39% of eligible claimants filed claims and about 25% received the claimed lands.

In total, 28,000 acres were distributed in this process, which is an average of 3 acres per award. These awards were called Royal Patent Grants[NOTE: Iʻm double-checking on this point – Kuykendall notes that there were two types of Grants and there were also the Land Commission Awards, or LCAs, which are still used to identify parcels today], and only granted a Life Estate (ownership for life, not inheritable). These could be converted to allodial or fee simple title and about 95% were converted. Many know the outlines of the above process, but what is little-known is that the process was continued, after the dissolution of the Land Commission, by the Minister of Interior. Also, Government lands were available for sale at the time for 50 cents per acre, which was cheaper than getting a survey for oneʻs “free” Kuleana Act claim.