Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 3, 1 April 2009 — The myth of ceded lands and the state's claim to perfect title [ARTICLE+ILLUSTRATION]

The myth of ceded lands and the state's claim to perfect title

In the recent ceded lands hearing at the Supreme Court in Washington, D.C., on Feb. 25. Attorney General Mark Bennett repeatedly asserted that the State of Hawai'i has perfect title to more than 1 million acres of land that were transferred to the LInited States government upon annexation in 1898 and then trans-

terred to the State ot Hawai'i in 1959. This is an incorrect statement. This falsehood, however, is not based on arguments for or against the highly charged Hawaiian sovereignty movement; rather, it is a simple question to answer since ownership of land is not a matter of rhetoric but dependent on a sequence of deeds in a ehain of title between the party granting title and the party receiving title. In fact, the term "perfect title" in real-estate terms means "a title that is free of liens and legal questions as to ownership of the property. A requirement for the sale of real estate." What determines a perfect title is

a ehain of title that doesn't have a missing link. Here in Hawai'i all titles originate from the Hawaiian Kingdom government, whether by Royal Patents or Land Commission Awards, and all subsequent conveyances between individuals are registered at the Bureau of Conveyances located at the corner of Punchbowl and

Beretama Streets on the ground floor of the Kalanimoku Building. An example of a ehain of title would be the Hawaiian Kingdom government to Joe Smith, Joe Smith to Alex White, Alex White to Alapa'i, Alapa'i to Yao Wong, Yao Wong to Jonathan Judd. If there is no record of the deed between Alapa'i and Yao Wong there is a break in the ehain of title and therefore Jonathan Judd cannot elaim to have a perfect title, whieh is a "requirement for the sale of real estate." For so-called ceded lands, being the Hawaiian Kingdom government and crown lands, the ehain of title is supposedly from the Hawaiian Kingdom

government and Queen Lili'uokalani to the provisional government, the provisional government to the Republic of Hawai'i, the Republic of Hawai'i to the LInited States, the LInited States to the State of Hawai'i. In this ehain. however. there are two missing links and not just one. On Jan. 17. 1893, the provisional government seized control of the government and crown lands without conveyance, but through revolt, and after investigating the revolt, President Cleveland reported to the Congress on Dec. 18. 1893, that the provisional government was neither ele facto (a successful revolution), nor ele ju.re (the lawful government), but selfproclaimed (committing the crime of high treason). On Nov. 13. 1893, U.S. Ambassador Albert Willis began to negotiate with the Queen, on behalf of President Cleveland, to grant amnesty for these criminals and an agreement to restore the Hawaiian Kingdom government was concluded with the condition that the Queen grant amnesty after the government was restored. The other missing link is that there is no record of conveyance from the socalled Republic of Hawai'i to the LInited States when the Hawaiian Islands were supposedly annexedin 1898. According to the Merriam-Webster Dictionary, the

term cede is "to yield or give up by treaty." In order for countries to cede territory to the LInited States it must be made by treaty, e.g. Louisiana Purchase from France in 1803, or the Alaska Purchase from Russia in 1867. For Hawai'i, there are two failed treaties of cession, the first in 1893 and the other in 1897, but the first was permanently withdrawn from the Senate by Cleveland in March of 1893, and the second was not able to be ratified by the Senate because of protests by the Queen and Hawaiian subjects. Instead, the United States enacted a congressional joint resolution proclaiming that the Hawaiian Islands had been annexed. The joint resolution of annexation is not a treaty or conveyance from the socalled Republic of Hawai'i, rather it is a unilateral declaration that was used to seize and occupy the Hawaiian Islands during the Spanish-American War. The United States today could no more annex Iraq by a joint resolution than it could annex the Hawaiian Islands by joint resolution in 1898. Congressional laws have no effect beyond the borders of the United States. If there is no record of a deed from the Hawaiian Kingdom government and the Queen to the provisional government transferring government and

crown lands, there is a break in the ehain of title and therefore the State of Hawai'i cannot elaim to have a perfect title, whieh is a "requirement for the sale of real estate." As far as the term "ceded lands," there is no such thing because the government and crown lands were never "yielded or given up by treaty" to the United States in the first plaee. Confusing "cession" for "oeeupation" is tantamount to confusing "adoption" for "kidnapping." This is not a case of semantics, but ignorance of the legal and political history of Hawai 'i. ■ Keanu. Sai has a Ph.D. in polit.ical sciencefrom t.he University ofHawai'i at Mānoa specializing in int.ernat.ional relat.ions. pu.hlie law and Hawaiian land t.enu.re. The eeeleel laneh issu.e was a part. of hh dissertation titled American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State. and a law jou.rnal art.icle he wrot.e for t.he Journal of Law and Social Challenges. University of San Francisco School of Law. Bot.h clocu.ments may be elownloaeleel online at. www2.hawaii.edu/~anu/ publicat.ions.ht.ml. His dissertation will be published by UH Press.

By Keanu Sai