To understand land ownership in Hawaii requires a little history.
Prior to the Mahele there was no private ownership of Hawaiian lands. The king controlled all of the Hawaiian lands in a feudal system. The king granted use of lands to the chiefs, who in turn granted use of the land to tenants. Everyone paid for their land use, as these payments flowed from tenant to chief, to king. No individual Hawaiian owned land.
The Hawaiian Kingdom wanted to encourage foreign investment in Hawaii. Investors were reluctant to invest, without private land ownership.
King Kamehameha III in 1848 divided Hawaiian lands into two parts. This first Mahale divided all lands between the king and the chiefs. This first division left the king with ownership of approximately 2.5 million acres of Hawaii. Later that same year, the King’s lands were divided again. This time the King set aside about 1.5 million acres “forever to the chiefs and people,” which later became known as government lands. King Kamehameha III kept approximately one million acres for himself, which later became known as crown lands.
The third part of the Mahale was designed to establish land ownership for the makaainana or common people. The Kuleana Act of 1850 set up a commission to hear land claims and to grant fee simple title to them. The maka’ainana could claim lands and get title to lands held by both chiefs and king.
For many reasons, the common people did not file very many claims. This resulted in less then 30% of Hawaiians receiving title to lands they had worked. Some feared the chiefs. Some could not provide the required survey. Some could not provide the two witnesses needed to prove their use of the land. Some failed to file within the two years required. Some had simply left the land for work in the cities.
Originally, a third of Hawaiian lands were set aside for the makaainana, but less the 1% actually was claimed, for a total of about 28,658 acres. These were mostly small tracts of land. Another provision of the Kuleana Act of 1850, allowed for the purchase of lands by the makaainana for $0.50 cents per acre. Ultimately another 167,000 acres was purchased by the makaainana.
At the end of the Mahale, chiefs controlled about 1.6 million acres. The Hawaiian government control about 1.5 million acres. King Kamehameha III controlled approximately 1 million acres. The makaainana controlled approximately 195,658 acres.
When King Kamehameha V died, without a will, his wife claimed these properties. The Hawaiian Supreme court in 1864 ruled that the king’s land did not go to his heirs, but to the next Hawaiian monarch. Subsequently, in 1965, the legislator declared these lands inalienable for the benefit of the successors of the Hawaiian crown. Hence the name crown lands.
Some of the makaainana and chiefs had difficulty holding on to their properties. Land ownership was a new concept for them. Many lands owned by the makaainana and chiefs were sold and some lands were lost in foreclosure.
Both crown lands and government lands were also sold. Most of the best government lands were sold to native Hawaiians. Yet, over time the bulk of government lands, measured in acreage, was sold and acquired by non-Hawaiians. Just prior to the end of the Monarchy, four out of five land owners were non-Hawaiians, who controlled over 1 million acres. These non-Hawaiians purchased their properties, from the government and the king and did not steal it.
With the end of the monarchy, the issue of control over crown lands was twice litigated. Former queen Liliuokalani sued to receive a life estate interest in the crown lands. Her claim was denied by the Hawaiian Supreme Court in 1864. The U.S. Supreme Court in 1910 held that these former crown lands were now government lands, since there was no longer a monarchy. Government lands therefore now included crown lands.
With the end of the monarchy, in 1893, the Hawaiian provisional government was formed. Former government lands of the monarchy became government lands of the provisional government. When this provisional government could not get annexation from America, it formed the Republic of Hawaii in 1894. The former government lands, were not disposed of or transferred into private hands and remained intact throughout the shifting governmental transfers. The income beneficiaries of the government lands continued to be paid out, just as they were before the end of the monarchy, including payments to the former queen.
Upon annexation, the Republic of Hawaii ceded all government lands, to the United States. The joint resolution of Annexation of 1898 stipulated however that ceded lands shall remain for the benefit of the Hawaiian islands. Income beneficiaries of the ceded lands continued to be paid out, as before.
The Organic Act of 1900 established the Hawaiian territorial government. This Act kept all ceded lands under the administration of the Hawaiian territorial government. No ceded lands were stolen.
In 1959 Hawaii became a state. The Hawaiian Admissions Act, unlike most other State Admissions Acts, did not default all lands to the federal government. Instead ceded lands, with the exception of a few federal properties, mostly National Parks and military bases, like Pearl Harbor, were returned to the State of Hawaii. The Hawaiian Admissions Act contained provisions for holding ceded lands for the benefit of native Hawaiians.
Today virtually all the lands under the control of Queen Liliuokalani remain under the control of the State of Hawaii, for the benefit of the people of Hawaii.
Private land owners in Hawaii, paid for their lands. Most land was originally purchased directly from the Hawaiian Monarchy or Monarch. The land was not stolen.
Lester W. Shirley is a resident of Kailua-Kona.