Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 3, 1 March 1987 — NHLC Report By Meahealani Ing, Executive Director [ARTICLE+ILLUSTRATION]

NHLC Report By Meahealani Ing, Executive Director

Native Hawaiian Leaal Corporation

CInclaimed Kuleana

During the course of its work, NHLC has eome across a very disturbing situation. It is one in whieh the courts have awarded kuleana to large landowners who have no elaim by inheritance, bona fide purchase, adverse possession or any other real property doctrine, but.who get it anyway by default. This is because a law presently on the books, H.R.S. §532-15, allows it. This law says that when a kuleana owner dies leaving no survivors, his land shall escheat to the surrounding landowner. The language of this statute, whieh first passed in 1866 and is over a 100 years old, reads, "Upon the decease ofany person owning, possessed of, or entitled to any estate of inheritance or kuleana in any land in theState, leauingno kindred suruiuing, all such land shall thereupon escheat and reuert to the owner of the ahupuaa, or ili, or other denomination ofland, ofwhich the escheated kuleana hadoriainallu formed a nart."

Although this archaic law conflicts with Hawaii's Uniform Probate Code, H.R.S.t560:2-105, whieh the Legislature enacted in 1976, and in whieh unclaimed property passes to the State, the courts have consistently found in favor of the surrounding landowner when it comes to kuleana. This is because the language in the older law favoring escheat of kuleana to the surrounding landowner is more explicit than in the Uniform Probate Code in whieh unclaimed property passes to the State. The more explicit language has therefore been held to be legally controlling. The language favoring escheat to surrounding landowners has its roots in Hawaii's introduction to private ownership, the Great Mahele, or Land Division, of 1848. In devising a strategy to make private land ownership possible, certain Principles were adopted by the Land Commission and ratified by the Legislature in 1846. These Principles intended first of all that the King should retain certain lands he held as a noble, thereafter called "Crown Lands". The remaining land of the Kingdom was to be divided into thirds: one-third to the Hawaiian government, onethird to the chiefs and land agents, and one-third to the commoner tenant farmers, or maka'ainana. If these principles had been successfully followed and implemented, the eommon people would have received one million acres of land, approximately one-third of what was left after Crown lands were set aside for the King. Instead, only 30,000 acres were eventually awarded the maka'ainana, less than one-half of one percent of all Hawaii's land. That is why the Great Mahele has been cited by historians as a major contributor to the problem of landless Hawaiians today. Why was so little land claimed by the commoners? In the first plaee, the maka'ainana were placed in the unenviable position of having to make adverse claims against their Sovereign or other powerful landlords. There are historical documents in whieh incidents of intimidation by powerful landlords are related. Secondly, Land Commission procedures were very onerous. The commoners had to prove, by their own testimony as well as by the corroborating testimony of witnesses, that they actually used the kuleana for subsistence purposes. In addition, they were required to pay survey costs as well as a commutation fee. Finally it may be argued that especially in rural areas, illiterate commoners may not have had adequate notice, mueh less comprehend, the new law based upon

private ownership, a concept completely alien to most Hawaiians at the time. Notwithstanding the miserable events whieh alienated most of Hawaii's land from Hawaiians, it is safe to say that this law was written to favor powerful landowners during a time in whieh there was a great imbalance of power. There is no plaee for a law like this in Hawaii today, especially when the majority of today's Hawaiians are landless and poor. Large landowners should not continue to enjoy windfalls of land to whieh they have no legitimate elaim except by default. NHLC presently has a case, filed by a corporate landowner on the island of Maui, involving 30 kuleana parcels. Of these, the landowner ean document ownership to six; NHLC's clients ean prove they own four. The 20 remaining parcels, of one-half to one acre in size eaeh, will go to the corporate plaintiff unless other successful claimants eome forward. This is because the plaintiff also owns the ahupua'a in whieh these kuleana are situated. NHLC has had 157 cases over the past six years in whieh kuleana were being contested. The possibility of defaulting land over to a plaintiff with a weak case has arisen in eaeh one of these cases. Presently, there is a bill before the legislature, S.B. 548, whieh would allow kuleana to be held in trust by the Office of Hawaiian Affairs for its beneficiaries upon a finding by the court that there were no other legal heirs or claimants at law. NHLC feels that the spirit of this legislation comports with original Principles adopted more than 100 years ago by fair-minded members of the Legislature, that is to award land to the Hawaiian people to ensure their survival. OHA's mandate to help Hawaiians makes it the logical caretaker for this land.

NHLC Executive Director Mahealani Ing presents Office of Hawaiian Affairs Trustee Louis Hao, chairman of the Resource Development Committee, with a eheek in the amount of $70,000 from costs and fees collected for successful settlement in the lawsuit of the State vs. Maui Land and Pineapple Co. The money will be used for programs to benefit OHA beneficiaries. Hao, who represents Molokai, is also vice chairman of the Board of Trustees.