How did a government constituted through an illegal “overthrow” manage to ʻlegally’ divest the majority of the lands of Hawaii from generations of Kānaka Maoli families? The current historical record largely ignores, overlooks, or misrepresents the land laws that were created to divest the indigenous peoples of their lands, and the resulting consequences to Kānaka Maoli identity, communities and culture. An exploration of the experiences of Kānaka Maoli families alongside an analysis of the legal maneuvering and mechanisms that deprived them of their lands are crucial steps toward recovering an accurate accounting of the hidden historical records, thereby, establishing an important foundation for both reclaiming lost lands and self-determination. Bringing this knowledge to light, future reparations can be achieved.
Background of Hawaiian Kingdom Land Laws
For the Kanaka Maoli, the ʻāina (land) means more than just what your feet walked upon, or what you could take from the dirt. There has always been a strong spiritual and cultural connection to the land. The Kumulipo, the ancient chant of the ancestors, tells of how Papa (earth mother) and Wakea (sky father) gave birth to a son, Haloa. Regretfully their first son died so he was buried at the corner of their house, where he grew into the first taro plant. Later a second son, his half brother, was born. He, too, they called Haloa, the ancestor of all men.[159] It is that geneological connection to the entire natural world that is part of every Kānaka Maoli. They are the kamaʻāina, the children of the land, the ones whose kuleana (responsibility) is to care and respect the land.[160] “I ‘āina no ka ʻāina i ke aliʻi, a i waiwai no ka ʻāina i ke kānaka” a traditional ʻōlelo noʻeau (Hawaiian proverb), describes the responsibility both aliʻi and kānaka have to the land, it is for the aliʻi to protect and the kānaka to care for and make flourish.[161]
This relationship to the land dictated every aspect of Kanaka Maoli traditional practices.[162] In the greetings between the aliʻi (chiefs) to that of the makaʻāinana (person of the land, the commoner), the chief would first say “ ʻano ʻai,” meaning that he recognized that it was the makaʻāinana who fed him. While the commoner would greet the chief, “welina” acknowledging the chief was the one who protected him. It was a mutual understanding of the others importance and that without the makaʻāinana and his care of the land, the chief could not ʻai (eat) and without the chief, the commoner could not care for the land.[163]
It is important to use “Hawaiian thinking” in order to understand the land tenure system in the Hawaiian Kingdom. Old Hawaii did not practice feudalism, as so many Western historians have claimed. One cannot look at the Hawaiian system through the blinders of “Haole thinking” (Western thought).[164] Similar to indigenous cultures in the Americas, the land could not be owned. The land was Papa, the giver of life, to be honored and revered, and was worked in common for the good of the entire community. Since White men first arrived in Hawaii in 1778, Haole have had difficulty understanding this concept; they instead, brought a Western vision of land and a capitalistic conception to land tenure.[165] The Kingdom sometimes granted land to Haole, if the foreigner had useful skills that would benefit the Kingdom, however, these awards came with caveats. One example was Charles Cockett, blacksmith to Kamehameha the I, who was given a gift of land to use. But, this did not mean that they could kick the kamaʻāina off of the land, those that lived there and cared for the land. Nor did it mean that the Westerner achieved the rank of chief; that could only be done through the mana (spiritual power) that one inherited from the gods. It merely meant that they could utilize the land. As for the caveat, Westerners either refused to accept or did not understand that they did not own the land in the way that Anglo-Americans defined ownership. If they left the islands or were no longer in the King’s favor, they could loose access to the land and its use. It was not ownership, but kuleana, being responsible for the care of the land. These misunderstandings led to the creation of the written kingdom laws that defined traditional values of the land.
In an effort to stem the tide of the foreigners from laying claim to the lands of Hawaii, in 1848 Kamehameha the III created what was to become known as the Great Mahele, the dividing. It was to be the basis of all land tenure in Hawaii prior to the Overthrow. The law’s foundation was clearly outlined in the Principles of the Land Commission (1846). The Great Mahele was to award land to individuals applying the traditional methods of land usage, in a form of layered management of land. The chiefs and konohiki (guardians) were given the Palapala Silu Nui (Royal Patents), which engulfed the lands of the entire ʻahupuaʻa.[166] On the same lands, those makaʻāinana (commoners) who lived, planted, and were considered part of the geneology to the land, were given Kuleana awards (Land Commission Awards, LCA). These documents, although many were never filed, identified who had a right to live and work the lands. Through careful analysis and translations of the original Royal Patents and Land Grants reveal strong caviats within the language of the documents: “Ua āhia ia i haawila, no wā mau loa aku no, ma ke ano alodio, a no kona mau hooilina, e me kona waihona, ua pili naʻe,” which means that the land is given not just to the holders of the document, but also to their heirs and assigns forever. The word waihona meant that the land was being placed in the safe-keeping of their DNA, their entire decendent line forever. As long as there were heirs, no one person could sell off the ʻahupuaʻa. If a person left the land, they could transfer their interest to someone else within that grant. All Royal Patents also included the caveat: “Ua koe na kuleana of na kanaka i noho nei,” meaning that the rights of the Kānaka Maoli had to be preserved. In other words, no kānaka could be removed from the land. They had a right to live, work, and benefit from their labor on that land. As W.D. Alexander explained in 1891, the “Crown really owning the allodium and the persons in whose hands he placed the lands holding in trust.”[167] Therefore, all lands were held in trust by the Crown, which granted that trust to others by way of Palapala Sila Nui (Royal Patents) and Kuleana (land grants). In the event that no one remained with a claim to a Royal Patent, the land either reverted back to the crown and government or was alloted to the other families within the Royal Patentʻs ʻahupuaʻa. In other words, under the Hawaiian Kingdomʻs system of land tenure, no land whether worked or unclaimed could be lost to the Hawaiian Kingdom law.[168]
Haole struggled to understand this concept of mutual land ownership. The creation of the Great Mahele was meant to resolve some of the confusion. Today, confusion still exists as to the meaning of the Great Mahele, many only understand the word mahele to mean divide. However, the kaona (inner or hidden meaning) and cultural understanding can be seen in the traditional practices of the hukilau, where the community work as a group to catch fish, then mahele (share) the rewards with those who provided kōkua (help) and kuleana (responsibilty). The King confirmed the lands of Haole who had already been given permission to use land, by granting them Royal Patents; yet still, in all cases they included the caveat, that the rights of the Kānaka Maoli were to be preserved and if the land was no longer in use, it would be reverted back to the crown. It was also outlined in the Principles of the Land Commission that “aliens are not able to acquire any allodial or fee-simple estate of lands” and that “the rights of the tenants and subtenants must still remain unaffected…if foreigner tries to depose tenants he is in violation of the law.”[169] The ministers who came to serve the Crown, they were permitted land to live and build their churches, yet they too had specific caveat. The land was theirs for as long as they lived or worked it, but if they left the islands or died, then the land could revert back or the makaʻainana who lived on the land would be given the interest in the Royal Patent. One example of this kind of transfer was the case of Elphalet Wittlesley, a Haole missionary who was awarded lands for his service to the crown. His Royal Patent award did not state that it was to be held for his heirs and assigns forever. So understanding this, when Reverend Wittlesley left Hawaii, in 1854, he deeded the Royal Patent back to the thirty-two families that lived upon the land.[170]
Other cases where Westerners were awarded Royal Patents was that of Charles Cockett and George Shaw, sailors who arrived on Hawaiiʻs shores and were put into service with the king. Since they married Kānaka Maoli wives, their patents contained a caveat “awarded less than allodial to his Hawaiian heirs and assigns forever, with the rights of the tenants preserved.”[171] There are numerous cases where Haole, through their service to the crown, received awards; however, all contained caveats. In addition, in all Royal Patents the declaration that the tenants rights were to be preserved as set out in kingdom law:
All these persons were considered to have rights in the lands or the production of them…proportions not clearly defined, although universally acknowledged…joint ownership of the land…King really owning the allodium and the persons in whose hands he placed the lands, holding it in trust.[172]
Another caveat found in many of the awards to the Haole state that the lands could not to “be assigned to a third party,” in other words, not sold or traded.[173] This was then reconfirmed in the Hawaiian Kingdom Constitution of 1892, which provided another opportunity for konohiki or their heirs and assigns to also receive Royal Patents.[174]
Hawaiian lands prior to the overthrow of Hawaii were understood to be held in trust by those awarded and all lands were to be used “for the common good.”[175] Therefore, unlike what has been taught within the school systems of Hawaii and part of the historical record since the time of the overthrow up to today: “as a result of the Great Mahele and the Kuleana Act the common people were virtually dispossessed of the lands they had occupied for so long,” the Kānaka Maoli were not dispossessed prior to 1893.[176]
By the 1850s, Western interests for land acquisition became more desired due to the budding agricultural industries of sugar, pineapple and ranching. The Crown seeing a possible benefit to the islands economy, allowed for the leasing of lands to Haole growers. Numerous leases on Royal Patent, government or Crown lands were agreed upon for periods of ten to twenty years at a time. The result was the growing power of what was to be known as the Big Five, planters who managed to put thousands of acres into monoculture production. These same sugar planters also signed twenty year water leases, diverting windward waters to the drier lands where sugar was growing. This was to have a lasting negative impact on the islands.
“Legalized” Dispossession
When Queen Liliʻuokalani proposed reestablishing the Hawaiian Constitution of 1840 which would have returned more political power to the Kānaka Maoli, those wealthy white businessmen feared that their economic and political power would be stifled, hence the conspiracy to “overthrow” the monarchy was the result. Business interests and profits to benefit the white oligarchy spurred the need to revamp the question of land rights, thereby beginning the swift process of dispossession. Those awardees who had been awarded leases by the crown or aliʻi were quickly claimed as their own private property. Crown and Hawaiian kingdom lands, held in common and populated by makaʻainana for centuries, were fraudulently transferred and re-labeled Territorial lands, subject to government authorized leases that often went to the sugar planters or for federal military use.[177] The Territory of Hawaii established the Bureau of Conveyances and a new land system, the TMK (Tax Map Key). This was an effort by the government to invalidate the monarchal legal documents of the Royal Patents and Kuleana Awards; ignoring the communal perpetuity within the titles, labeling the lands as fee-simple and subjecting lands to yearly taxation.[178] The primary purpose of “assigning TMK numbers to exempt, non-taxable Hawaiian Royal Patent, Grant or Kuleana lands….was devious method…to identify all land as being under their taxing authority, regardless of the rightful jurisdictional holding of that land.”[179] And for those who could not pay the taxes, a system of “quit-claim” was established that allowed others to pay the taxes, thereby “owning” the lands, yet, no clear title could be attained.[180] Soon lands that had been lived on for generations by families through Kuleana Awards and Royal Patents were being quit-claimed by Americans.[181] Nevertheless, under international law, the Royal Patent is considered to be the strongest of land claims, given under a nation that had been recognized by the international powers of that time.
As the TMK system began to take shape, Royal Patent lands that had been leased to white businessmen were consolidated under the TMK system. A leasee simply had to state that an heir had signed the property over to them for a $1 and love, pay the taxes to the government, and the land would then be theirs. Many of these $1 and love sales held by large corporations were signed by an ʻX,’ which begs to question their authenticity. Data showed that 99% of Kanaka Maoli were literate in ʻōlelo Hawaiʻi, as well as many in the English, prior to 1893. [182] So why would a signature be marked by an ‘X’? Several of these questionable documents were found in the study of the Villiarimo family ʻahupuaʻa of Koali, however, many that were signed by an ‘X,’ the claimant’s signature could be found plainly scribbled in the Kūʻē petition, the documents that had been presented to the US Congress to protest the annexation of Hawaii. In other cases under quit-claim, they could come in pay the illegal taxes without the family knowing and claim it as theres, then families would “get suckered into defending in a foreign state tax court,” eventually loosing the land under these fraudulent laws.[183] Other Royal Patents and Kuleana awards were stolen through intimidation of widows who were forced to sign over their interests, the claim was then presented as a signature that falsely presumed the title was for the entire Royal Patent, not just an interest. The Territorial government neglected to realize that not any one person could give up the interest in the land for all the families, the land was shared by all.[184] [There are multiple cases of questionable land titles which would take a book to share all of the examples, however some of these examples will be found on the website].
A growing number of Kānaka Maoli had been removed from their ancestral lands either through disease or the theft of lands as a result of the “Overthrow.” Concerned for his people, Prince Kūhiō, during his time as a US Congressional representative established the Hawaiian Homes Commission Act of 1921. This Act’s original purpose was to provide twenty acres of land to all displaced Kānaka Maoli, so they could live and propagate, thereby ensuring their protection and survival.[185] However, before it could be implemented Prince Kūhiō passed away. As a result, Federal Congressional members rewrote the law to add the stipulations that recipients must have at least fifty percent blood quantum to the Act, and that awardees could recieve from two to twenty acres. These changes were designed to limit the amount of overall lands awarded. In the end, those who were awarded lands were given the least desirable lands in Hawaii; while others were forced to wait on “the list” as they grew old and died. Yet, for many others who did not meet the 50% threshold set for blood quantum, they were deemed not Indigenous enough by the Federal government, therefore could not even be placed on “the list.” Mackey Cockett, who is 5/8 Kānaka and sixty-six years old has waited on the list since he signed up at the age of eighteen, however, he still has not been awarded Hawaiian Home lands. His parents were also eligible, yet remained on the list their entire lives, raising Mackey and his six siblings in Maui public housing. Today, Mackey squats without a lease in a ramshackled collection of tents, plywood, and an old bus on Hanaʻs undeveloped Hawaiian Homes lands, “Deh when give me one eviction, but I not going. I been here ten years, Iʻm on da list, no way can they make me go.”[186] This story is one of many cases where those whose family lost their ancestral lands remain landless today.
One of the few large landowners that did not on its face represent the interests of the Oligarchal Big Five was the Bishop Estates, they are the largest land owner on Oahu. The lands came to the Bishop Estates through the Royal Patents of Princess Pauhi Bishop, one of the few aliʻi who did not loose their lands as a result of the “overthrow.” This was probably due to the fact she was married to a Haole. In her will, she declared that the land should be held in trust to help educate the children of Hawaii. Upon her death, her husband Charles Reed Bishop, an American businessmen, created the Bishop Estates and worked to fullfill her trust by establishing Kamehameha Schools and the Bishop Museum. Upon his death, the Territory of Hawaii “Supreme Courtʻ… assumed the responsibility of ʻProtector’ for the Trust, particularly the duty of appointing the trustees.”[187] From 1915 to 1998, the republic/state-appointed trustees represented the most influential Haole interests, embroiling the trust into a cloud of greed, deceet and corruption.[188] A trust created for the benefit of the Hawaiian children soon was to be the leading holder of leases to sugar companies, partly to finance the Kamehameha Schools and Bishop Museum, at the same time lining the pockets of the Trustees. Allegations of ethical breaches would not come to light until the 1980s. One trustee was found to have helped their family gain a $3 million dollar profit through their connections with the trust; inappropriate and excessive spending has also been an issue where Bishop Estates has spent over $10 million to companies without contract bids, and possible connections to nepotism.[189]
Then more lands were to be lost on Dec. 8, 1941, the day after Pearl Harbor, as martial law enveloped Hawaii. The United States Department of Defense claimed large swaths of land as Federal property for the purpose of military training grownds and target practice for the the United States forces in the Pacific. Such lands that were taken were Makua Valley on Oahu and the island of Kahoʻolawe in Maui County. However, when World War II was over, the United States did not return the lands. The threat of Cold War fears were too great, the United States felt that they needed to maintain their strength and readiness in the Pacific. With the rising threat of communism surrounding both the Asian continent and Central America, Hawaii was strategically too advantageous. The United States military controlled 205,925 acres of land and the entire island of Kahoʻolawe.[190] By the 1970s, the military controlled a total of 600,000 acres.
The conspiracy that had begun as a result of White businessmen’s desire to maximize their profits by way of Annexing Hawaii to the United States had been realized. The immigrant Asian populations, through the strengthening of the Democratic Party, and unionization had not only accepted American rule, but had began to compete alongside the Oligarchy’s capitalist interests, finding themselves in equal positions of power. The Native population, on the otherhand, were displaced from their lands, their homes, removed from their culture, banned from their language, and unable to find either jobs or support.[191] It was not until the 1960s, with the rise of the Civil Rights movement on the mainland United States, that the Kānaka Maoli began to resist.