Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 9, 1 September 1987 — Occupaney or Residency [ARTICLE+ILLUSTRATION]

Occupaney or Residency

By Clarence F.T. Ching Trustee, Oahu

As Hawaiians continue to be dragged off and arrested for occupying such lands as Makapuu, Waimanalo, Sand Island, Makua and other places, one wonders whether such land-claiming activities are actually attempts by Hawaiians to rip off the system or whether their claims and actions are

grounded upon genuine legal arguments. Where deeds exist, as the Kaawa elan claims in the recent Makapuu dispute, resolution of the matter should not be too difficult. It is necessary that the claimed ehain of title be continuous from the present back to Kamehameha III, the originator of all land ownership in Hawaii. However, because the Hawaiian tendency is to forego probating the estates of the deceased, establishing chains of title may be a difficult and time-consuming task.

For claims not based on deeds, the situation is even more complex and vague. The question is: Are there historical, cultural and/or legal basis for making such claims and will the courts uphold them? In 1848, Kamehameha III created the Great Mahele or land division. The lands were intended to be divided among three classes: (1) the King, (2) government and (3) chiefs and people. By the Act of June 7, 1848, the House of Nobles and Representatives of the Hawaiian Islands, in Legislative Council assembled, accepted the lands conveyed by the King and declared that the lands retained by the King (Crown Lands): (T)o be the private lands of His Majesty Kamehameha III, to have and to hold to himself, his heirs, and successors, forever; and said lands shall be regulated and disposed of according to his royal will and pleasure subject only to the rights of tenants. As to other lands (Government Lands), the King had caused:

(T)o surrender and forever make over unto his chiefs and People, the greater portion of his Royal Domain . . . subject always to the rights oftenants. As a result of the Mahele, the King retained for "himself, his heirs and successors" approximately 1 million acres that later became known as the Crown Lands. Approximately 3 million acres became Government Lands for the chiefs and people, the Chiefs obtained approximately 1.6 million acres, and the people, as kuleana lands, got title to 28,600 acres. The residual Government Lands, containing approximately 1.5 million acres, and the Crown Lands eventually became known as the "ceded lands" after the 1898 annexation to the U.S. Part of those ceded lands were returned to the State of Hawaii as the 5(f) land trust of the 1959 Admissions Act (statehood), 20 percent of the ineome from

whieh filters down to the Ōffice of Hawaiian Affairs. The important point here is the phrase: "Subject to the rights of tenants." While the State Constitution and statutes acknowledge some meanings of the phrase, and case law has attempted to delineate them further, there are other rights that have been ignored and/or allowed to go unmentioned. Prior to the Mahele, all Hawaiians lived on the land. With less than seven-tenths of 1 percent (28,600 acres of a total of 4.1 million acres) of the land actually getting into maka'ainana ownership, what happened to the rest of the people who heretotore tilled the land? Simply put, they must have continued to live on the land after the

Mahele as they had before. They did not disappear as some would have us believe. Since there are no accounts written by Hawaiians until after 1820, to adequately define the "rights" in question, we must look to times prior to the Mahele, times even before missionary influence began to affect the culture. Rubellite Kawena Johnson, a foremost Hawaiian scholar, suggets that we look at written descriptions by early foreign residents such as Archibald Campbell. Campbell wrote in 1809 that he was granted 60 acres of land situated at Waimomi, in the present area of Pearl Harbor, with 15 people and their families who cultivated the ground as his servants. These tenants, in addition to possibly rendering service to the landlord, also leased