Making Sense of the Ceded Lands: A Historical Assessment

This article was published in the Hawaiʻi Independent during the US Supreme Court case regarding the ceded lands in 2009. Iʻm posting it here because there is no link to it on the Independent website:

A recent Honolulu Advertiser article stated that the State’s title to Hawaiʻi’s ceded lands was not in dispute in the current struggle over those lands. In her State of the State address, governor Linda Lingle said that the case was not over the State’s right to sell ceded lands, but over the title to such lands. Many assert that Hawaiians’ claim to the ceded lands is merely moral, not legal. Who is right? In this article I review the history of the ceded lands and make the case that, contrary to Lingle’s claim, Hawaiians have a legal claim to these lands.

The “Ceded” lands are the combined government and Crown (the monarch’s private) lands originally divided during the Māhele of 1848. The word ceded is often put in quotes because the term means “transferred, typically by treaty” – as there was no treaty of annexation, the very existence of “ceded” lands is questionable. These lands were taken by the government of the Republic of Hawai‘i (the formalized version of the overthrow-created Provisional Government), then transferred to the US government upon annexation. Many have pointed out that the State has never made in inventory of these lands, nor kept track of which were originally public and which private.

Confiscation of the ceded lands by the US Federal government began immediately after annexation. On September 28, 1899, an executive order issued by President McKinley suspended any transactions pertaining to the public lands of Hawai‘i by the Republic of Hawai‘i.  This was after annexation but before the Organic Act that created the territorial government. It was in response to a report recommending that the current sites of Schofield Barracks and Fort Shafter on the island of Oʻahu be obtained through condemnation procedures. Five such executive orders were issued between 1898 and 1900 securing land for military purposes, and, according to the dissenting report of the Native Hawaiians Study Commission, “the military has made extensive use of Hawai‘i’s public lands ever since.”

In 1900, the Organic Act, which contained the provision that ceded the lands to the territorial government and charged it with their maintenance and management. In 1921, just under 200,000 acres were carved out of these lands, creating the Hawaiian Home Lands trust. These were some of the poorest agricultural lands out of the ceded lands, as sugar growers and ranchers retained the prime public lands. When Hawai‘i became a state in 1959, these lands were again transferred to the newly created state government. The Federal government “set aside” 287, 078 acres of public lands, of which 60,000 acres were used by the military. An additional 28,000 acres were obtained in fee through purchase or condemnation. 117,000 acres were held under permits and licenses. 87,000 of these acres were retained by the military, while 30,000 of these acres were obtained through leases of $1 for each lease for 65 years.

Upon statehood in 1959, the 5(f) provision in the Statehood Act named five purposes for the ceded lands, including the betterment of the conditions of Native Hawaiians. The proportion of revenue from these lands to be conveyed to Hawaiians was disputed in court for decades. Originally set at twenty percent, then struck down, negotiations are ongoing over a settlement for neglected payments to the Office of Hawaiian Affairs. Abuses of the ceded and Hawaiian Home Lands abounded. Included in this acreage is Mākua valley, used since World War II as a live fire military training area. The Hawai‘i state government has withdrawn 13,000 acres from the Hawaiian Homes trust through Governor’s Executive Orders (GEOs), primarily for game reserves, forest conservation, military, airports, and public services.

Title to the ceded lands, however, is a more contentious issue. Supreme court cases in 1864 and 1910 made the private Crown lands look more like public lands, reinforcing the government’s claim to them. As UH law professor Jon Van Dyke points out, however, in his book Who Owns the Crown Lands of Hawaiʻi,these lands have several potential breaks in the chain of title, which create a strong Hawaiian claim to these lands. Van Dyke recommends that they become the basis of a Hawaiian governing entity, presumably created by the Akaka bill.

Then there is the issue of title to the Hawaiian Kingdom government lands, acquired from a government that President Grover Cleveland described as owing its existence to the armed intervention of the United States. In real estate law, it is never what you claim to own, but what the previous owner can prove they owned, that is the basis for determining title. This seriously weakens the State’s claim, as the Federal government twice – in 1893 and 1993 with the apology resolution – denied the legitimacy of the Provisional Government, and by extension, the Republic of Hawaiʻi, the source of its title.

The State of Hawaiʻi may in fact have eminent domain, the right to confiscate lands, but they arenʻt claiming to have gained title through eminent domain. Unlike Britain and other countries, in US law, the government does not have any special rights as a land owner other than eminent domain, which, incidentally is not in the US constitution, but only asserted by the supreme court. Thus, the State’s assertion of title to the ceded lands is necessarily through their transfer from the Republic of Hawaiʻi. A final note: in Hawaiian Kingdom land law (which essentially continued after the overthrow, otherwise Kamehameha Schools and the Big Five wouldn’t own their land), the government did have special rights – called dominium – and all makaʻāinana were part of the government where land rights were concerned. These “native tenant rights,” at least theoretically, still exist today, and allow native Hawaiians to divide out the interest (or rights) and claim parcels out of government or private lands. They are not, as is commonly believed, gathering rights, but the right to a fee-simple parcel of land. This means no one owns their land absolutely as all original land titles contain the provision “ua koe ke kuleana o na kanaka” – reserving the rights of native tenants. So Lingle is right that this case is about title to ceded lands, she is wrong about who holds that title. The Hawaiian claim to the ceded lands is as much legal as it is moral.