On Ownership

This post is part of the continuing “On” series: others include On Capitalism, On Freedom, On Constitutionalism and On Privilege.

In Wall Street: Money Never Sleeps, Gordon Gecko – famous for the line that defined the 80s, “greed is good” – relates the secret of his success: “I own stuff.”

By acquiring ownership of appreciating assets, investors buy low and sell high, and real estate is a prime example of this. But as Iʻve come to own property, it has begun to dawn on me that one never really owns anything. There are many ways that a property can be foreclosed on, beyond simply failing to pay the “mortgage” (you actually pay the loan, the mortgage is the contract allowing foreclosure): failure to pay taxes (a tax lien), failure to pay maintenance fees, failure to pay any “mechanic” who does work on your house (a mechanic’s lien). Taxes in some high-value areas can be in the thousands per month, so even if you own your property free and clear, the cost of living there can be prohibitive, as much as a “mortgage.” Further, you donʻt really own property at the most fundamental level. The legal concept of “dominium” means that the sovereign owns all property at a level “beneath” your “ownership” – what you have is actually a bundle of protected rights to the property: the right to use and enjoy, exclude others, etc. (though this last right is abridged in Hawaiʻi due to Native Tenant Rights).

At a conference on occupation at Cornell last May (my attendance was due to this article I wrote for The Nation), we looked at the term from various perspectives, including the simple occupation of land

As I write this, Hawaiʻi is in crisis. The basic necessity of a roof over oneʻs head is one of the most difficult “commodities” to afford, and hereʻs the thing: many of us are responsible for this state of affairs. Homeowners benefit from raises in housing prices, and have a vested interest in the continuation of this state of constant increase – that is, as individuals. Even this benefit is, in a sense, short term. When you sell your high priced property, you have to buy back in to an inflated market. Also, housing becomes much more expensive for your children, who youʻre trying to help get along in the world. It becomes a form of generational warfare. The situation is so extreme, that even renting is becoming a difficult proposition for many – credit checks, first and last monthʻs rent and/or deposits can make renting something only for the very well-off. (If you had great credit wouldn’t you be buying instead of renting?). According to an article in Civil Beat, thirty percent of renters are spending half of their income or more on rent, making them very vulnerable to shocks, like divorce, death in the family or medical problems.  Add this to the fact that most Americans donʻt have $1000 for emergency expenses, and the situation is dire indeed.

Ironically, some long-term studies show that property, when adjusted for inflation, has not had real increases in a century. Any exceptions to this are bubbles. So are we in the midst of a very protracted bubble? If so, we may want to change our long-term approach to wealth management. I wrote earlier that the wealthy are beginning to thinking about access rather than ownership, an this has begun to trickle toward the middle class and working poor. We need to begin to question the very fundamental assumption that the market is the best mechanism for allocating scarce resources, like real estate. There are some small moves in this direction: Kamehameha Schools (normally a very aggressive developer) is developing its Oʻahu North Shore lands in a way that takes some other factors into account. Priority for a new development in Haleʻiwa will be given to local (that is, North Shore, and often Hawaiian) families who fall into the “gap group” – imagine a teacher married to a fireman. They arenʻt in lucrative positions, but are a stable bet to pay their loan and stay in their house for decades, rather than sell at the first uptick in prices.

Perhaps we should try to return to traditional Hawaiian ways of thinking about ownership. According to a source I cite in my dissertation, Hawaiians had very few possessions. A man, for instance would own only a handful of items related to his trade. So the idea that one could own land was certainly foreign – even chiefs didnʻt own land – they controlled it for a period of time, until the next kālaiʻāina (land division).

The ʻĀina Forum

I spoke on my dissertation topic, Kuleana land rights (native tenant rights). Legendary activist Walter Ritte, on my left, spoke on the necessity of taking action. He said “Those who donʻt have the genealogy to know the past, can’t see the future … If you know these things are wrong and do nothing, you’re to blame.” Hanale Bishop, Meghan Leialoha Au Spoke of the potential and challenges of farming as a living, and Nalani Minton discussed the 1993 People’s Tribunal. Click picture for video. My talk starts around 11:00.

Abstract for Kuleana: A Genealogy of Native Tenant Rights

This may be the shortest post yet, but Iʻve purposely avoided posting any of my dissertation here on the umiverse. As Iʻm basically done now, I thought Iʻd at least post the abstract here for you r consideration. I plan to convert it to a book as soon as humanly possible.

During the period of the privatization of land in Hawaiʻi (1840 – 1855), kuleana, usually translated as “native tenant rights,” constituted both a right to, and responsibility over, land for Hawaiians. The 1850 Kuleana Act provided a means for makaʻāinana to divide out these rights and gain a fee simple title to the lands under their cultivation. Using a hybrid genealogical method, I argue that these rights were elided by gathering rights in the period since the 1890s. By debating the extent of gathering rights, courts have been able to appear liberal, while obscuring the profound rights of Kānaka Maoli embedded in Hawaiʻi’s land tenure system. The 1850 Kuleana Act was a continuation of the process begun with the 1848 Māhele, which I contend was misconstrued by twentieth century scholars. This contributes to the confusion over native tenant rights. I examine both the foundations of the introduced system of land law (the ideas of dominium, eminent domain and property itself), and responses to kuleana rights – the Land Court, 1895 Land Act, and legal cases such as Dowsett v. Maukeala. In examining its foundations, I use a concept I call theoretical encounter, which attempts to apprehend the meeting of ideas. In analyzing the responses to kuleana, I use the framework of legal pluralism, which acknowledges the simultaneous existence of multiple legal regimes. In examining the question of the alienation of Hawaiians from land, I find that a technique called erasure allowed for a radical forgetting of place. Central to the debate over kuleana lands is the notion of a deadline on claims to such lands. I problematize the idea of a deadline on claims, opening questions over the continued existence of kuleana in the present day.