Reply to Letter from Steven Kubota, from Bellows EIS 1995

Thanks to attorney H. William Burgess and Mrs. Sandra Puanani Burgess for the following content, taken from their website from the webpage

This material is important because it deals with claims that ethnic Hawaiians should have special rights to own or control the ceded lands, based on the apology bill of 1993, and the alleged illegality of the overthrow of 1893 and of the annexation of 1898.



Dear Mr. Kubota: 

In your letter of May 9, 1995 you state that the Draft EIS' discussion of land title issues should be reevaluated in light of Congress's legislative apology to native Hawai>ians enacted in P. L. 103-150 (hereinafter referred to as the Resolution). You state further that the Government's reliance on Lili>uokalani v. U. S., 48 Ct. Cl. 418 (1910), to support the position that persons of Hawai>ian descent have no ownership rights in the ceded lands is unjustified because that case failed to take into consideration that the overthrow of the monarchy was illegal. These issues deserve a detailed response.

The ceded lands at Bellows AFS are part of the former Crown lands of the monarchy. Before addressing each of the points you raise, it may be useful to review the history of the ceded lands, and in particular the Crown lands, in more detail than was done in the Draft EIS.

In preparing the EIS, we researched primary and secondary sources for both the monarchy period and afterward to ascertain the grounds for the belief, as expressed at the scoping sessions, that persons of Hawai>ian ancestry have claims to the ceded lands. From our research, the only conclusion which could fairly be drawn was that these beliefs, however honestly held, were not supported by history or law. We examined legal documents of the kingdom such as the Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them. (Laws 1848, p. 81, reprinted in Revised Laws of Hawaii (RLH) 1925, Vol. II, p. 2124, hereinafter referred to as Principles) and decisions of the courts of the kingdom concerning Crown lands. We also reviewed such modern studies as Cannelora's The Origin of Hawaii Land Titles and of the Rights of Native Tenants (1974, hereinafter referred to as Cannelora) and Jon Chinen's The Great Mahele (1958) and Original Land Titles in Hawaii (1961) which examined in detail the development of real property rights in Hawai>i.

These sources show a rapid evolution of the concept of property ownership in the Hawai>ian kingdom over the first half of the nineteenth century from a situation in which the king exercised absolute control of the land of the kingdom to one in which control was allocated in a Western model among the King, the government, the chiefs or konohikis and the tenants or common people. This evolution culminated in a series of property divisions generally referred to as the Great Mahele, hereinafter referred to as the Mahele. It included the segregation of the Crown and government lands of the kingdom from the property of private individuals. In so doing, it changed the nature of property ownership in a way that left no room for any rights in or to the Crown lands other than the private property rights of the monarch.

For accuracy and completeness, the following review of this process is described principally through direct quotations from the above sources, rather than through summaries and paraphrases, and as much as possible from the primary legal documents themselves.

At the time of initial Western contact and for many years thereafter, there was little doubt that Kamehameha I, as supreme monarch of the islands, had absolute control of the lands of the kingdom.

At the death of Kamehameha I, his son, Liholiho, Kamehameha II, was recognized as King in accordance with his father's express will. Along with the Crown, Kamehameha II inherited all his father's rights as an absolute sovereign and as suzerain or lord paramount of all the lands in the Kingdom, which rights, unimpaired, descended with the Crown to Kamehameha III. [Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864)].

Control of these lands was subdivided among the chiefs of the kingdom, and by them subdivided among subordinates, but always subject to the overriding authority of the king.

When the islands were conquered by Kamehameha I, he followed the example of his predecessors, and divided out the lands among his principal warrior chiefs, retaining however, a portion in his hands, to be cultivated or managed by his own immediate servants or attendants. Each principal chief divided his lands anew, and gave them out to an inferior order of chiefs, or persons of rank, by whom they were subdivided again and again; after passing through the hands of four, five or six persons, from the King down to the lowest class of tenants. All these persons were considered to have rights in the lands, or the productions of them. The proportions of these rights were not very clearly defined, but were nevertheless universally acknowledged. Principles, p. 81.

There was, apparently, a period of development of the concepts of "rights" referred to above during the reign of Kamehameha III, as the kingdom sought to ensure its continuing independence by, in part, earning the respect and acceptance of the powerful nations with interests in Hawai>i as a full partner in the modern world.

In the year 1839 began that peaceful but complete revolution in the entire polity of the Kingdom which was finally consummated by the adoption of the present constitution in the year 1852. His Majesty Kamehameha III began by declaring protection for the persons and private rights of all his people from the highest to the lowest. In 1840 he granted the first constitution by which he declared and established the equality before the law of all his subjects, chiefs and people alike. By that Constitution, he voluntarily divested himself of some of his powers and attributes as an absolute ruler, and conferred certain political rights upon his subjects, admitting them to a share with himself in legislation and government. This was the beginning of a government as contradistinguished from the person of the King, who was thenceforth to be regarded rather as the executive chief and political head of the nation than its absolute governor. Certain kinds of public property began to be recognized as Government property, and not as the King's. Taxes which were previously applied to the King's own use were collected and set apart as a public revenue for government purposes, and in 1841 His Majesty appointed a Treasury Board to manage and control the property and income of the Government. But the political changes introduced at that period did not affect in the least the King's rights as a great feudal Chief or Suzerain of the Kingdom. He had not as yet yielded any of those rights. [Estate of His Majesty Kamehameha IV, p. 720].


Thus while the rights of the chiefs and people were recognized and acknowledged by the early 1840's, they were ill-defined, and the result was great uncertainty.

The Constitution of 1840 recited that although all of the land belonged to Kamehameha I, "it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had management of the landed property". This was the first acknowledgment by a Hawaii sovereign that his subjects had some proprietary interest in the land. But the constitution provided no means by which the undivided interests of the King, the chiefs and the common people in the same land could be separated, nor did it establish any procedure under which the people could acquire fee title to land. [Cannelora, p. 6]

The kingdom's approach to resolve these uncertainties was to establish a commission to "settle land titles". The responsibility of the commission was broad, however, and as much creative as adjudicatory.

Claims of one character and another to the possession of land had grown up, but there was no certainty about them, and all was confusion; and finally, after years of discussion had between the King, the chiefs and their foreign counsellors, the plan of a Board of Commissioners to Quiet Land Titles was evolved, and finally established by law, for the purpose of settling these claims and affording an opportunity to all persons to procure valid paper titles emanating from the government representing the sovereignty, the source of all title to land in this Kingdom, to the land which they claimed. [Thurston v. Bishop, 7 Haw. 421 (1888)]

The function of this commission was to formally separate out the previously shared and undivided rights of the people of the kingdom to the lands of the kingdom. It had to give precise definition to the acknowledged but undefined rights of the various classes of society, and then to settle the specific rights of members of those classes with respect to specific parcels of land.

The board recognized three classes of persons having vested rights in the land: the King or government (these terms are used interchangeably in the Principles), the landlords, and the tenants. To determine the respective rights of these classes, it looked to ancient custom and tradition. The commission noted:

The testimony elicited is of the best and highest kind. It has been given immediately by a large number of persons, of a great variety of character, many of them old men, perfectly acquainted with the ancient usages of the country; some were landlords, and some were tenants. There has been no contradictory testimony, and all have agreed on all essential points. [Principles, p. 83]

That testimony led the commission to decide that the three classes of holders of rights in land should each have an equal one-third share, although it was not yet clear what a "one-third share" meant. This tended not to favor the king.

Ancient practice, according to the testimony, seems to have awarded to the tenant less than justice and equity would demand, and to have given to the King more than the permanent good of his subjects would allow. If the King be disposed voluntarily to yield to the tenant a portion of what practice has given to himself, he most assuredly has a right to do it; and should the King allow to the landlord one third, to the tenant one third, and retain one third himself, he, according to the uniform opinion of the witnesses, would injure no one unless himself; and in giving this opinion, the witnesses uniformly give it against their own interests. [Principles, p. 83]

Nevertheless, the king accepted this finding and the apportionment by thirds became the accepted standard. There still remained difficulties, however, since while the rights of the landlord, tenant and king were settled at one-third each, they remained undivided--that is, the three holders of rights were in a situation analogous to tenants in common or joint tenants. For any given piece of land which was put to productive use, a tenant, a landlord and the king all most likely had valid claims.

To allocate these undivided rights to individuals, a series of partitions or maheles were made, all known collectively as the Great Mahele. In 1848 the first phase of the divisions took place between the King and the chiefs or konohikis. This resulted in 245 separate maheles with individual chiefs or konohikis, following which the King retained a major part of the lands of the kingdom as his personal and individual property, subject only to the rights of tenants. [See Cannelora, p. 12-13]. A chief receiving land would have to pay a "commutation" to the king, in land or other property, to discharge the king's claim, and the grants to the chiefs were also made subject to the rights of tenants.

The King's lands reserved in the Mahele were divided once again. The following description of this event is taken from Cannelora at pages 13-14:

Even before his division with the landholders, a second division between himself and the government or state was clearly contemplated[.] . . . The records of the discussion in Council show plainly his Majesty's anxious desire to free his lands from the burden of being considered public domain, and as such, subjected to the danger of confiscation in the event of his islands being seized by any foreign power, and also his wish to enjoy complete control over his property." (Estate of Kamehameha IV (1864), 2 H. 715). "It appeared to the King that the land thus released to him might be subjected to commutation in like manner with the lands of the chiefs. . . . Moved by these considerations . . . he proceeded . . . to set apart for the use of the government the larger portion of his royal domain, reserving to himself what he deemed a reasonable amount of land as his own estate." (Harris v. Carter (1877) 6 H. 195).

The King accordingly executed two documents, one conveying to the government the lands to be reserved for government use, the other retaining explicitly to himself, in fee simple, certain specified lands. The lands conveyed to the government became known as government lands; the lands retained by the King became known as Crown lands.

The separation of rights between king and chiefs was in time extended to the tenants. In 1850, native tenants (hoa>ainas) were given the right to obtain fee simple titles to those parts of the lands of the government, the King or the chief or konohiki which they actually occupied and improved, subject to Land Commission approval. The tenants, however, were not required to pay a commutation. Other government lands were made available for purchase by those who did not already have sufficient land. [Cannelora, p. 17-18].

The rulers of the kingdom were clearly aware that the rights which Kamehameha III retained in the Crown lands were personal and exclusive. This is manifested in detail in a decision of the Hawai>i Supreme Court in 1864 in a case brought by Queen Emma. In that case, Queen Emma claimed personal and individual rights in the Crown lands by virtue of her status as widow of Kamehameha IV. In deciding that case (Estate of His Majesty Kamehameha IV, 2 Haw. 715), the Supreme Court of the kingdom in 1864 confirmed that the Crown lands were held by the reigning monarch as his own individual property. While it did not uphold Queen Emma's claim in every respect, it held that the rights of the reigning monarch in the Crown lands were private; that such was the intent of Kamehameha III, who reserved these lands in the Great Mahele "for me and for my heirs and successors forever, as my own property exclusively"; that these lands were subject to the legal limitation that at the death of the reigning monarch they could only pass to his or her successor; but that "each successive possessor may regulate and dispose of the same according to his will and pleasure, as private property[.]"

The King's plan to separate his lands from the public domain and assure his sole and independent ownership of them was ultimately frustrated by the 1865 legislation which limited ownership of these lands to the reigning monarch and his lineal successors and placed control of these lands in the hands of the Commissioners of Crown Lands. This act so changed the character of these lands as to make them, in legal effect, a part of the lands of the government to be used for the support of the king as head of the government, and not the purely private property of the King. It was in recognition of this change that the U. S. Court of Claims, in ruling on Queen Lili>uokalani's claim to the Crown lands, held that they had passed to the Provisional Government and thence to the Republic and the United States when the government itself changed hands. However, the restrictions imposed by the 1865 legislation ran only in favor of the government as a whole, not in favor of any racial or ethnic group within the kingdom.

Thus the overall effect of the Mahele was to terminate the shared-ownership, trust-like relationship described in the Constitution of 1840. Through the Mahele, these diffuse and poorly-defined rights were specified and allocated to individuals, to the King and to the government. Following the Mahele, the chiefs and common people had no property rights in the lands of the King and the government, and no rights to control those lands except as citizens of the Kingdom acting through the structures of government; that is, the ballot box and the political process. There could no longer be any broadly-shared or communal claims to the Crown or government lands.

By the time of the Mahele, many citizens of the kingdom were not of Hawai>ian ancestry, and by the 1850's, the kingdom's law generally did not discriminate among subjects of the kingdom on grounds of Hawai>ian ancestry. Specificially, there was no differentiation on the basis of ancestry with respect to the rights to vote and to hold property and thus it could no longer be said, in any sense, that persons of Hawai>ian descent, by virtue of that descent alone, had rights superior to those of persons of foreign parentage with respect to the lands of the King or the government. Such rights as existed in the citizens of the kingdom to control those lands were attributes of citizenship, not race. When the government of the kingdom changed from a constitutional monarchy to a republic and then to a territorial government of the United States, there was no conceptual change in the relationship of the citizens to the lands of the government. However "citizens" might be defined and however the franchise might be restricted or expanded, it was citizenship, not ancestry, which gave rights to participate in decisions concerning the Crown and government lands. Citizens of the territory had precisely the same rights and opportunities to control the disposition of lands of the government as citizens of the monarchy; that is, through the ballot box and the political process.

With these facts in mind we turn to the issues you raise in your letter. The first issue is the effect of P. L. 103-150, which is sometimes referred to as the apology resolution.

A careful reading of the resolution indicates that it is not applicable to the disposition of ceded lands at Bellows AFS. Specifically:

This conclusion--that the apology resolution has no bearing on Native Hawai>ian claims of ownership of the ceded lands--is consistent with the observations in the Draft EIS that under the monarchy, persons of Hawai>ian descent as a group or class were not recognized as having ownership rights in the Crown or government lands. Since such persons as a racial group never had rights in the ceded lands under the monarchy, the 1893 revolution could not have deprived them of any rights to the ceded lands, and so there would have been no reason for the resolution to address such rights.

It is further noted that the recitations in the resolution are not universally accepted as the truth among Hawai>i's citizens, and there has recently been highly visible public debate on these issues.

In light of the foregoing, the resolution can best be seen as an appeal to Federal agencies whose actions affect persons of Hawai>ian ancestry to be alert and sensitive to the special significance of the 1893 revolution for many such persons. For this EIS process, however, such sensitivity is already mandated by the statutes and regulations governing the process, particularly those concerning scoping and subsequent public input. It was precisely the public input during scoping that prompted the thorough examination of the ceded lands issue in the Draft EIS. That would have occurred whether or not the apology resolution had been passed.

Because Congress has not established special procedures (either in P.L. 103-150 or in other laws) specifically for the land use decisions being contemplated for Bellows AFS, Federal agencies must adhere to generally-applicable laws and regulations governing use, administration and disposal of Federal property. The EIS reflects the Government's compliance with these requirements to date with respect to Bellows AFS.

Your letter also questions the validity of the draft EIS's reference to the case of Lili>uokalani v. U. S. in the U. S. Court of Claims because that case did not discuss the lawfulness of the 1893 revolution which resulted in acquisition of the Crown lands by the Provisional Government.

As a preliminary matter, it should be noted that the 1893 revolution was not a revolution against the existing system of private property rights. The Crown and government lands were not seized from private persons; they were simply taken over by the Provisional Government because they were governmental assets. The Queen's suit in the Court of Claims was for the validation of claimed private property rights in the Crown lands as they had existed under the kingdom. The Queen conceded in the litigation that the absence of such a private property right would have "rendered the crown lands subject to the usual transmission of title appurtenant to a change of sovereignty." The Court of Claims, applying the law of the kingdom, ruled that by virtue of the statute of 1865, the Queen did not have such a private property right to the Crown lands.

On the basis of that conclusion, the court ruled that the Queen had not been wrongfully deprived of any interest in the Crown lands when the government changed hands. The ruling would likely have been the same even if the court had addressed the legality issue; from the court's point of view, the revolution, legal or not, did not deprive Lili>uokalani of her private property. It is of significance, however, that the Queen's claim was in her own name. She did not appear before the court in the capacity of a trustee or any other type of representative or fiduciary either for the citizens of the kingdom or for persons of Hawai>ian ancestry. She was asserting her own personal and independent rights.

For all the foregoing reasons, we must reaffirm the conclusions reached in the draft EIS. Whether we look to the statutes of the kingdom and the decisions of its courts (as was done in the draft EIS) or to the statements and behavior of the monarchs themselves in asserting their claims to sole ownership of the crown lands, we must conclude that neither the king nor the legislature of the kingdom nor the kingdom's judiciary believed that persons of Hawai>ian ancestry, as such, had any specific or general rights to the Crown lands. We have found no evidence that such rights arose at any time after the ending of the monarchy, and we must therefore conclude that no such rights exist today.

We recognize that this conclusion may be controversial with those who have come to believe differently, and it may be that our analysis will not lay the issue to rest, but the conclusion we have reached is the only one which the available facts permit. Neither our own research nor the public input received at scoping or during the public comment period points in another direction. We have, however, tried to make plain exactly what we considered and how we reached our conclusions, and we invite continuing dialogue on this topic with anyone who may have additional information or points of view to offer.


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