HAWAI‘I HISTORY The 1846 Mahele (division) transformed the lands of Hawai‘i from a shared value into private property, but left many issues unresolved. Kauikeaouli (Kamehameha III) agreed to the Mahele, which divided all land among the mo¯‘ı¯ (king), the ali‘i (chiefs), and the maka‘a¯ı¯nana (commoners), in the hopes of keeping the lands in Hawaiian hands even if a foreign power claimed sovereignty over the islands. The king’s share was further divided into Government and Crown Lands, the latter managed personally by the ruler until a court decision in 1864 and a statute passed in 1865 declared that they could no longer be bought or sold by the mo¯‘ı¯ and should be maintained intact for future monarchs. After the illegal overthrow of the monarchy in 1893, the Government and Crown Lands were joined together, and after annexation in 1898 they were managed as a public trust by the United States. At statehood in 1959, all but 373,720 acres of the Government and Crown Lands were transferred to the State of Hawai‘i. The legal status of the Crown Lands remains controversial and misunderstood to this day. In this engrossing work, Jon Van Dyke describes and analyzes in detail the complex cultural and legal history of Hawai‘i’s Crown Lands. He argues that these lands must be examined as a separate entity and their unique status recognized. Government Lands were created to provide for the needs of the general population; Crown Lands were part of the personal domain of Kamehameha III and evolved into a resource designed to support the mo¯‘ı¯, who in turn supported the Native Hawaiian people. Crown Lands originally had a special meaning as Native Hawaiian lands, and it is important to understand their unique heritage. The question of who owns Hawai‘i’s Crown Lands today is of singular importance for Native Hawaiians in their quest for recognition and sovereignty, and this volume will become a primary resource on a fundamental issue underlying Native Hawaiian birthrights. Jon M. Van Dyke has been a professor of law since 1976 at the William S. Richardson School of Law, University of Hawai‘i at Ma¯ınoa. Cover art: Hawai`i. Compiled from a map traced by F. L. Lowell, Hawaiian Government Survey, 1901. Cartography by Carlos Andrade, 1997. Cover design: Wilson Angel UNIVERSITY OF HAWAI‘I PRESS Honolulu, Hawai‘i 96822-1888 www.uhpress.hawaii.edu 1VanD_i-xii i 9/25/07 12:32:52 PM 1VanD_i-xii ii 9/25/07 12:32:53 PM Jon M. Van Dyke University of Hawai‘i Press • Honolulu 1VanD_i-xii iii 9/25/07 12:32:53 PM © 2008 University of Hawai‘i Press All rights reserved Printed in the United States of America 13 12 11 10 09 08 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Van Dyke, Jon M. Who owns the Crown lands of Hawai‘i? / Jon M. Van Dyke. p. cm. Includes bibliographical references and index. ISBN 978-0-8248-3210-0 (hardcover : alk. paper) — ISBN 978-0-8248-3211-7 (pbk. : alk. paper) 1. Crown lands—Law and legislation—Hawaii. 2. Land tenure—Law and legislation—Hawaii. 3. Public lands—Hawaii. 4. Hawaiians—Claims. I. Title. KFH451.V36 2008 346.96904’32—dc22 2007031670 University of Hawai‘i Press books are printed on acid-free paper and meet the guidelines for permanence and durability of the Council on Library Resources. Designed by Paul Herr Printed by The Maple-Vail Book Manufacturing Group 1VanD_i-xii iv 9/25/07 12:32:54 PM Contents Foreword, by William S. Richardson vii Acknowledgments xi 1. Introduction 1 2. Land Tenure on the Eve of Western Contact 11 3. Before the Mahele 19 4. The Mahele 30 5. The Government Lands 54 6. The Transfer of Lands from Kauikeaouli to Alexander Liholiho (1854–55) 59 7. The Passing of Alexander Liholiho (1863) 66 8. In the Matter of the Estate of His Majesty Kamehameha IV (1864) 71 9. The 1865 Statute Making the Crown Lands Inalienable 89 10. The Ascension of William Charles Lunalilo to the Throne (1872) 93 11. The Transition between the Kamehameha Line and Kaläkaua’s Keawe-a-Heulu Line 96 12. Claus Spreckels, Princess Ruth Ke‘elikolani, and the Claim to a Half Interest in the Crown Lands 100 13. The Inalienable Crown Lands (1865–93) 111 14. The 1887 Bayonet Constitution and the Reciprocity / Pearl Harbor Treaty: Preludes to Overthrow 118 15. Population, Voting, and Citizenship in the Kingdom of Hawai‘i 131 16. The 1893 Overthrow of the Kingdom 151 17. The Republic of Hawaii (1894–98) 172 18. The 1895 Land Act 188 19. Annexation by the United States (1898) 200 v 1VanD_i-xii v 9/25/07 12:32:54 PM Contents 20. The Crown Lands during the Territorial Period (1898–1959) 216 21. Liliuokalani v. United States (1910) 227 22. The Hawaiian Homes Commission Act (1921) 237 23. Statehood (1959 to Present) 254 24. The “Painful Irony” of Rice v. Cayetano (2000) 274 25. The Kamehameha Schools 307 26. The Other Ali‘i Trusts 324 27. The British Crown Lands 344 28. Claims of Ali‘i Descendants 358 29. Summary and Conclusions 375 Appendixes 1. Principles Adopted by the Land Commission, 1846–47 385 2. An Act Relating to the Crown, Government, and Fort Lands, June 7, 1848 397 3. The Kuleana Act (Enactment of Further Principles), August 6, 1850 422 4. In the Matter of the Estate of His Majesty Kamehameha IV, 1864 424 5. Act Rendering the Crown Lands Inalienable, January 3, 1865 433 6. Joint Resolution of Annexation, July 7, 1898 435 7. Excerpts from the Organic Act, April 30, 1900 437 8. Liliuokalani v. United States (U.S. Court of Claims 1910) 446 9. “Apology Resolution,” November 23, 1993 450 Glossary 455 Selected Bibliography 459 General Index 471 Case Index 483 Credits for Photographs 485 Maps follow page 68 vi 1VanD_i-xii vi 9/25/07 12:32:54 PM Foreword This important book is designed to sort out a complex body of legal history and thereby to give us guidance about how to evaluate and act upon these historical events. It should prove to be a valuable resource for everyone interested in address- ing and resolving the claims of the Native Hawaiian People, which continue to haunt and divide our community. This book was initiated and inspired by Richard Dwayne Nakila Steele (1934– 2006), who was a student of Hawaiian history and culture throughout his life. He saw the Crown Lands as the key to the sad history of loss of lands and resources and destruction of culture and historical continuity suffered by Hawai‘i’s native people. He understood that the Hawaiians did not see their ‘Äina as something capable of private ownership, and that it was a living part of their communities that would bring forth food and sustenance if cared for properly (Malama ‘Äina). But as Kamehameha III (Kauikeaouli) faced the devastating health problems that brought death and dis- ease to vast numbers of Hawaiians, as he considered the pressures being brought on his isolated islands by the imperialist powers from faraway who were circling the Pacifi c and claiming islands as their own, and as he observed the tactics of westerners who had come to Hawai‘i seeking economic advancement, he decided it was neces- sary to embark on a Mahele (division) of the lands. His goal in this effort was to pro- tect the lands from being transferred into foreign hands, and he believed that if the lands were in private hands their private ownership would be protected even if a for- eign power engaged in a regime change and claimed sovereignty over the islands. He thus distributed the lands to the Ali‘i, keeping about one-fourth of the ‘Äina—about one million acres—for himself. The sad irony of this effort was that these lands picked by Kamehameha III for himself, which were among the most special lands in the islands, evolved to be con- sidered as public lands and were merged into the Public Lands Trust after the King- dom was illegally overthrown in 1893. As Dwayne Steele himself put it in an essay he wrote in 1992: “It is ironic that the thing Kamehameha III feared most, perhaps the vii 1VanD_i-xii vii 9/25/07 12:32:54 PM Foreword single most important reason that the Land Division of 1848 took place when it did, i.e., the possible loss of his personal lands to a foreign government, had come to pass. A foreign country had annexed his kingdom and had confi scated his lands.” Dwayne was moved and troubled by this evolution of the King’s Lands, and he wanted to see the preparation of a thorough legal analysis of the developments pro- ducing these changes so all could understand the sequence of events and their cur- rent legal signifi cance. Through the efforts of Robert Ferrigno and others, Dwayne was connected with Professor Jon Van Dyke, who agreed to undertake this chal- lenging assignment. With the help of funding that Dwayne had provided, Professor Van Dyke chose two of the top law students—Rhoda Kealoha-Spencer and Kapua Sproat—to assist in undertaking some of the original research and writing for this project. A fi rst draft was prepared that addressed the central events and themes. When reviewers examined this effort, they said it was good but that it could be more thorough and suggested additional sources that should be examined.