Ka Wai Ola - Office of Hawaiian Affairs, 1 September 1982 — CHAPTER # III OF NATIVE HAWAIIAN [ARTICLE+ILLUSTRATION]

CHAPTER # III OF NATIVE HAWAIIAN

In light of the history of landholding laws in Hawaii, and the history of the fall of the monarchy and annexation set forth in Chapters I and II, the Commission has examined whether the native Hawaiians have any legal claims to compensation from the United States for loss of land or sovereignty. This chapter sets forth the analysis and findings of this review. In preparing this chapter, the Commission has reviewed a number of articles and reports making the legal argument in favor of compensation. These include Melody MacKenzie's report forthe Officeof Hawaiian Affairs, Sovereignty and Land: Honoring ihe Native Hawaiian Claim ; Karen Blondin's A Case For Reparations for Native Hawaiians, 16 Hawaiian Bar Journal 13; and H. Rodger Betts' unpublished Report on the Hawaiian Native Claims, Second Draft, (February 17, 1978). In addition, the Commission has attempted to address the views and analysis presented by a number of people at the Commission's hearings throughout Hawaii in January, 1982. This chapter first sets forth the background for the analysis, because mueh of it depends on technical legal concepts and terms. It then reviews whether the native Hawaiians are entitled to compensation for loss of their land under present law, and whether they are entitled to compensation for loss of their sovereignty. Finally, this chapter compares the native Hawaiians' claims to those of the Alaska Natives that Congress addressed in the Alaska Native Claims Settlement Act. A. BACKGROUND Over the years, a number of different native groups and organizations have sought compensation from the United States for loss of lands and loss of sovereignty. As a result, a large body of law has developed. That law is made up of both statutes passed by Congress and of cases decided by courts. Mueh of that law has been developed because American Indians (native Americans) have made claims for compensation; other law grows out of claims by Alaska Native groups. In the discussion of whether the native Hawaiians have claims for eompensation, the analysis examines whether the existing law — statutes and cases — provides a basis for giving compensation. Without in any way suggesting that Hawaiian natives are an Indian tribe. the law developed for and about Indian tribes will be reviewed to determine whether this body of law provides a legal basis for the native Hawaiian claims., Generally, law has developed that native groups may be entitled to compensation for loss of land under two legal pnnciples: first, that a native group had "aboriginal title" to lands, and those lands were taken by the United States; and second, that the native group had "recognized title" — title that the United States specifically acknowledged under its laws. Eaeh of these principles has a number of technical legal requirements that the native group must meet in order to be entitled to compensation under the principle. This chapter will analyze the facts regarding the native Hawaiian history and land law in the context of those legal requirements. Claims for compensation for loss of sovereignty, on the other hand, have been made underseveral laws. Thischapterwillfirst look at the legal concept of sovereignty, then consider the native Hawaiian experience under that concept. The chapter will then examine eaeh of the laws under whieh claims for loss of sovereignty have been made. Finally, this chapter will look at whether any special trust relationship exists between the United States and the native Hawaiians that would be a basis for compensation. It will then compare the native Hawaiian claims to the Alaska Native claims. While this chapter must cover technical and legal material, summaries at the beginning and end of eaeh portion of the chapter will make clear the context in whieh those legal points are considered. B. WHETHER NATIVE HAWA1IANS HOLD ABORIGINAL TITLE TO CROWN AND GOVERNMENT LANDS AND WHETHER THEY ARE ENTITLED TO COMPENSATION FOR LOSS OF ANY SUCH T1TLE. Aboriginal title is a concept developed in the law to provide a basis for a native group that does not have traditional, legallyaccepted land ownership rights to establish a elaim to land ownership. It is generally defined as title derived from the use and occupancy of land from time immemonal. Under the Iaw, number of specific tests have developed that a native group must meet in order to establish that it has aboriginal title to a tract of land: the group must be "a single landowning entity"; there must be actual and exclusive use and occupancy of the lands; the use and occupancy must be of a defined area; and the land must be used and occupied for a long time before aboriginal title was extinguished. If the native Hawaiians meet the test of holding aboriginal title, to be entitle to compensation from the United States the title must have been extinguished by the government of the United States, not by the government of Hawaii, before the United States annexed Hawaii. Finally, even if the aboriginal title was terminated by the United States, some law must give the native Hawaiians a right to compensation for loss of aboriginal title, since without such a law there is no right to such compensation. This section will analyze eaeh of these legal requirements to determine: whether the native Hawaiians had aboriginal title to portions of the land in Hawaii; whether the United States extinguished that title; and whether the native

Hawaiians are entitled to compensation for loss of that title. Do the native Hawaiians have aboriginal title to the Crown and Government lands? To establish aboriginal title to the Crown and Government lands, native Hawaiians must meet eaeh of the tests for such title set forth above. Under present law, the native Hawaiians as a group (without determining what persons would qualify as a native Hawaiian) meet some but not all parts of the test to be a single landowning entity. Courts have he!d that, even in the absence of political cohesion, Indians having a eommon culture, eommon language, ties of kinship, eeonomie ties, treated by the sovereign as having collective rights in the area claimed, and having eommon use of a claimed area, constituted a single landowning entity. The native Hawaiians were a group with a eommon culture, language, and ties of kinship. Their eeonomie ties in the nineteenth century are less apparent, since commoners were free to move from one ahupua'a to another, and since, during that century, many native Hawaiians left the land to work forforeign landowners in Hawaii or to work in other non-agricultural pursuits, so that they did not act as a group with eeonomie ties to eaeh other. Under the ancient land law system, it could be considered that the king owned all the land. However, even at that time the native Hawaiians did not treat all the lands as owned in eommon; a native Hawaiian tenant worked for a particular chief, and could be summarily ejected from the land he eultivated by that chief. In turn, the chief could be summarily removed from his land by the king. These practices underscored that ownership of the land was not by all native Hawaiians as a group. Further, in 1848 the Great Mahele, or division of land, brought to an "end onee and for all the feudal system of land tenure in Hawaii, and finally and conclusively established the principle of principle of private allodial titles." Since the intended goal of the Land Commission Board and of the Mahele was to be a total partition of individual interests, including a division and parcelling out of the interests of the eommon people (i.e., defeudalization), any idea of eommunal ownership was laid to rest. Moreover, the Kuleana Act (and other legislation passed subsequent to the Great Mahele) allowed individual native Hawaiians to elaim a fee simple interest in lands they had actually cultivated or, in the case of other native Hawaiians, to obtain fee simple title to Government (ands by purchase. Further, mueh land, including Government and Crown lands, established by the Great Mahele, was made available for purchase by foreigners. These lands, then, were not held in eommon by the native Hawaiians, but were owned in fee simple and gave the people vested property rights. Such ownership is not in eommon and is contrary to the concept of aboriginal title. The Kuleana Act was significant in two other respects. Those natives who cultivated land had traditionally been allowed to "grow crops for their own use and to pasture animals on unoeeupied lands" of the ahupua'a, one of the principal landowning units into whieh all land (including Government and Crown lands) were divided. The Kuleana Act abolished the right to grow crops and the right of pasturage. In addition, the Kuleana Act had the effect of establishing the principle that Government land could be sold, thereby opening the way for foreigners to purchase Government lands. By 1864, native Hawaiians had purchased over 90,000 acres of Government land and by 1893, foreigners had purchased over 600,000 acres of Government land. By 1890, 752,431 acres of Government and Crown lands had been leased to foreigners. One theory contends that the statement in the 1840 Constitution of Hawaii that the lands of Hawaii "belonged to the chiefs and people in eommon" establishes that the native Hawaiians had collective or eommon ownership of the Government and Crown lands and, in effect, proves that the native Hawaiians had aboriginal title to the Government and Crown lands. Similarly, it has been argued that the change in the land system of Hawaii under the Great Mahele, whereby the king "set apart forever to the chiefs and the people" approximately 1,500,000 acres of land and retained for himself, his heirs and successors approximately 1,000,000 acres (known respectively as the Government and Crown lands), establishes the collective ownership of these lands by the native Hawaiians and, therefore, effectively proves that they had aboriginal title thereto. However, even if the quoted language signifies that the Hawaiian Government treated the native Hawaiians as having "collective rights" in the Government and Crown lands, this treatment does not, in and of itself, establish that the native Hawaiians constituted a single landowning entity, whieh, in turn, is only one of the prerequisites for the existence of aboriginal title. Furthermore, even if the quoted language were an acknowledgement by the Hawaiian Government that native Hawaiians had a right to exercise some degree of control over the Government and Crown lands, this acknowledgement, in and of itself, does not prove the existence of aboriginal title to these !ands. The existence of aboriginal title is a question of fact that must be established by clear and definite proof. The historical record reveals developments in individual ownership by native Hawaiians of manyofthesesamelandsbetween 1848 and 1 893 and the ownership and/ or use of many of the Government

and Crown lands by non-natives by 1 893 — facts that believe the arguments based on the 1840 Constitution and Great Mahele. In her article, A Case for Reparations, Karen Blondin argues that the Court of Claims decision in Liliuokalani v. United States, 45 Ct. Cl. 418 (1910) makes clear that land was eollectively held and used by native Hawaiians. In Liliuokalani, the Court of Claims held that the lands held as Crown lands by the Queen should be treated as other Government lands, so that the Queen's loss of the lands did not give rise to a compensable taking for her. Since the Government lands, as discussed above, are not regarded as owned collectively by the native Hawaiians as a group, the rulingin Lilioukalani does not support Blondin's argument. Further, in Sovereignty and Land, MacKenzie argues that the 1840 constitution created a trust relationship among the king, chiefs and people by citing a statute that reads: No man living on a farm whose name is recorded by his landlord, shall without cause desert the land of his landlord. Nor shall the landlord causelessly disposses his tenant. However, this statute was a mere instrument of the chiefs to keep the laborers of their land from leaving their homes for the developing cities of Honolulu and Lahaina. It was not a statement of eommon use and ownership. These laws and the ones to follow were to represent a move toward the philosophy of individual ownership of land and a break from whatever eommon use existed in the traditional feudal land system. The first test for aboriginal title is the existence of a single landowning entity. While the native Hawaiians meet some of the requirements for a single landowning entity, they do not meet all such requirements. As noted, they did not have eommon move from one ahupua'a to another, but during the nineteenth eentury many native Hawaiians abandoned the land to work for foreign landowners in Hawaii or to work in other non-agri-cultural pursuits. Second, it does not appear that they made eommon use of the Crown and Government lands after 1848 in light of the ownership of many of these lands by individual native Hawaiians and individual non-natives and the use of many of these lands by non-natives under leases from the Hawaiian Government. Third, even if the Hawaiian Government had treated the native Hawaiians as having "collective rights" in the Crown and Government lands prior to 1848, it appears that it did not do so after that date. Indeed, passage of the Kuleana Act (and related legislation), whieh opened the way to ownership of Crown and Government lands by individual native Hawaiians and individual foreigners, and the practice of leasing Government and Crown lands to foreigners indicates that after 1848 the Hawaiian Government did not view the native Hawaiians as an entity whieh had "collective rights" in the Crown and Government lands. In order for a group to be deemed a single landowning entity, it must have been viewed as an entity having collective rights as of the alleged date of extinguishment of title. The second test for aboriginal title is that the single landowning entity had actual and exlusive use and occupancy of the specified lands (here, the Government and Crown lands) for a long time before title was extinguished. Actual and exclusive use and occupancy for a long time prior to 1893 or 1898 — the alleged dates of extinguishment — must be established by clear and definite proof. Because such a large portion of the Crown and Government lands were patented or sold to individuals (either native Hawaiians or foreigners) or leased to foreigners by 1893, actual and exclusive use for a long time up to that date cannot easily be shown. In her report, MacKenzie suggests a "constructive possession" of all Crown and Government lands by native Hawaiians. In other words, because many, but not all, native Hawaiians cultivated small plots of Crown or Government lands, they used and occupied these lands in their entirety. Courts require, however, that occupancy be actual and not "merely constructive or merely asserted." Moreover, in making a determination as to the area that was actually and exclusively used and occupied, the courts will take into account a loss of population of the landowning entity prior to the alleged date of extinguishment of aboriginal title. I3etween 1853 and 1896 the number of native Hawaiians dropped from 70,036 to 31,019. Even before 1893, therefore, the trend was a dramatic decline. Moreover, since the native Hawaiians did not have a nomadic culture, actual and exlusive use and occupancy of the extensive area of Crown and Government lands is even more difficult to establish. The final test for aboriginal title is that the use and occupancy must have continued for a long time before being extinguished. Since the heart of the elaim as to aboriginal title to the Crown and Government lands runs from the time of the Great Mahele, such long use cannot be established. As to eommon ownership before the Great Mahele, the system of occupancy by chiefs, rather than by the people in eommon, would seem to make plain that eommon useand occupancy by all native Hawaiiansdid not run to that time. It cannot be established, therefore, that the native Hawaiians meet the three tests for showing the existence of aboriginal title. Did the United States extinguish whatever aboriginaI title existed? The facts of land ownership in Hawaii underscore that even if the tests for aboriginal title had been met, such title was extin-