This post is an update of an older one as the “Ceded” lands have come to the forefront with the Ching (and now Case) nomination, and the Mauna Kea controversy.
Because of his work for pro-development interests, the confirmation hearings for Carleton Ching have been among the most contentious in recent years. Testimony was nine-to-one against Ching, so people seem to have a clear sense of a conflict of interest in his appointment. But what exactly does this trust, the so-called “ceded lands,” consist of? It makes sense to look back at how these lands came under the control of the DLNR, and abuses that may have taken place in the past, in order to better assess who might be a suitable steward for these lands.
The “Ceded” lands are the combined government and Crown lands (the monarch’s private lands) originally divided during the Māhele of 1848, comprising about one and a half million acres. The word ceded is often put in quotes because the term means “transferred, typically by treaty,” and 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 1983 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, a settlement for neglected payments to the Office of Hawaiian Affairs was reached with the transfer of Kakaʻako Makai. 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, and Crown lands in particular, 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 ʻaha, or Native Hawaiian Convention.
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. Environmentalists’ concern over the management of these lands is justified because it is a trust that at one level is held for all citizens in perpetuity. At another level, Hawaiian concern over the use of, and title to, these lands is as much legal as it is moral.