Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 1, 1 January 1994 — New laws return kuleana lands to Hawaiians [ARTICLE+ILLUSTRATION]

New laws return kuleana lands to Hawaiians

bv Patrick Johnston OHA is presently involved in efforts to ensure that kuleana lands awarded to Hawaiians after the Mahele stay in Hawaiian hands. Under the Kuleana Act of 1850, approximately 7,500 kuleana totaling 28,600 acres were deed-

ed to small, tenant farmers. Because the kuleana plots were part of the surrounding ahupua'a, and the ahupua'a owner, not the kuleana tenant, was required to pay for the plot, in the 1860s laws were established that would give the

ahupua'a owner or konohiki the property if the tenant died without heirs and a will. They, not the government, had escheat or reversionary interest in the land.

This law remained in effect for over 120 years during whieh time a significant portion of ahupua'a land was taken over by sugar and pineapple plantations and other non-Hawaiian land owners. They continued to take over kuleana lands, either through quiet title or adverse possession, when the

owners died without heirs or a will. In 1987, the Legislature passed an OHA-sponsored bill that stated any kuleana lands that had no heirs were I eventually to be I transferred to the I Office of Hawaiian ' Affairs to manage. The hope was to pre-

serve the original intent of the Kuleana Act and keep Hawaiian lands in Hawaiian hands. Even with the new legislation, OHA was concerned that kuleana

lands were still being taken over by large landowners and proceeded to see that an amendment was passed that would ensure OHA participation in all cases that involve non-heirs seeking to quiet title a kuleana. The amended law required that OHA be named and notified in all kuleana quiet title actions. "I think it was an important step in preventing lands that were given to native Hawaiians from passing into other hands," says Rick Kiefer, an attorney representing OHA in quiet title cases. OHA land officer Linda Delaney adds, "The Hawaiian attachment to the land and the deep pain of knowing that attachment was severed makes this legislation very significant." For Delaney, the legislation demonstrates that kuleana lands were a traditional form of property ownership, and that the lands represent a "Hawaiian" link to proper-

ty in both the traditional and private property laws. She also feels it represents an example of how Hawaiian rights must be treated in a different fashion even if private property is involved. After amending the original legislation OHA recognized that it needed legal representation in these cases and contracted the law firm of Paul Johnson Park and NUes to represent it in quiet title cases. It also wanted the firm to educate judges and attorneys regarding the new kuleana laws, and to assist OHA in developing a land management plan.

because state land laws would have awarded the unclaimed share to the individual trying to quiet title the kuleana, not to the four Hawaiian heirs. Delaney explains, "We were not actually taking it from the family share. If OHA were not in the case, the unclaimed share would go to a non-Hawaiian who was trying to quiet title." The money received from the settlement was placed into OHA's Native Rights Fund. Other cases have involved native Hawaiians trying to clear title to land that had been in their family for generations. Because earlier title holders had not made it clear who the heir was to be, the family wanted to clarify ownership. Because these have involved Hawaiians with legitimate claims to the land, OHA has withdrawn from the cases. "We never want to be in a position of taking land where there is a Hawaiian heir," says OHA land planner Lynn Lee. Many of the cases involve lands where the owners died before the new kuleana laws were enacted. In the first of the cases on the issue, a Second Circuit court judge ruled that the kuleana law could not be applied retroactively. If the ruling stands, nonHawaiian heirs would be able to elaim kuleana lands whose owner died before the OHA legislation. OHA is now working with its attomeys to have legislation put in plaee that would allow it to protect Hawaiian interests in these cases.

"The Hawaiian attachment to the land anel the deep pain of knowing that attachment has been severed makes this legislation very significant." - Linda Deianey, OHA land officer OHA has been involved in 30 quiet title cases since the amending of the quiet title laws. The first case that concluded in OHA's favor involved receiving compensation for a on- fifth section of a parcel of land where heirs to only four of the five original owners could be found. OHA became involved in the case

Some terms ...

kuleana: A small pieee of property. As a result of the 1850 Kuleana Act, a tenant's plot of land could only include land the tenant had actually cultivated pius a house lot of not more than a quarter acre. ' '' - escheat: The reverting of land to the government, or lord of the estate, when there are no legal heirs. In the U.S it reverts to the govemment. In British law it reverts to the lord. kuleana escheat: The reverting of land to the ahupua'a owner when there are no legal heirs Mahele: The dividing of Hawaiian lands in 1848 between the king, chiefs, government and tenants. Kuleana Act: Passed in 1850, the act authorized the award of fee simple title to native tenants for their cultivated plots of land and house plots. adverse possession: A Iegal method of acquiring title by possessing land for a certain period of time under certain conditions. These include being the sole user of the land and using it continuously for a certain period of time. If the original owner of the land does not take appropriate action, either by filing suit or repossesing the land, the p!ot goes to the individual trying to take it over. .

Linda Delaney

Thousands of plots like this taro patch in Moloka'i were deeded to tenant farmers after the 1 850 Kuleana Act. Photo by Patrick Johnston