Analysis of Land Title Issues for Ceded Lands, and Conclusion, 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 the chain of land title of the ceded lands is not valid for the United States and State of Hawai'i, based on the apology bill of 1993, and the alleged illegality of the overthrow of 1893 and of the annexation of 1898. The conclusion rejects all claims of special rights for "native Hawaiians" to own or control the ceded lands, asserted by Steven Kubota, Tony Sang, and others in the Bellows environmental impact process of 1995.



Extract from Final EIS for Land Use and Development Plan, Bellows AFS, December 1995



Many who offered testimony or wrote letters in response to the scoping notice questioned the military's title to Bellows AFS. They asserted that persons of Hawaiian descent have claims to the land or may be entitled to have some sort of special control over the disposition of these lands. In response to these concerns, a review of the title to these ceded lands was conducted. The possibility that Hawaiians or native Hawaiians (as those terms are used in existing legislation to denote classes defined by race or ancestry) should have special consideration in decisions concerning ceded lands has been carefully evaluated.


The circumstances by which the lands now known as Bellows AFS came into federal ownership are described in Appendix E to this EIS. This report shows that valid legal title to these lands was vested in the United States either by condemnation, by conveyance, or by set-aside of ceded public lands of the Territory.


The claims advanced during the scoping process focused on ceded lands, i.e., the lands known as Crown or government lands during the period of the monarchy, which were ceded (granted) to the United States when Hawaii was annexed to the United States in 1898. The claims seek "return" of these lands to the "Hawaiian people," to "native Hawaiians" or to "Hawaiians." It is noted that the terms "native Hawaiian" and "Hawaiian" are defined in a number of state and federal statutes solely in terms of race or ancestry; that is, as referring to persons descended from inhabitants of the Hawaiian Islands just prior to the discovery of the islands by Captain Cook in 1778. There is no accepted definition of "the Hawaiian people" in state or federal law, but it is assumed for purposes of the discussion below that the term as used during the scoping process referred generally to persons who are either "native Hawaiians" or "Hawaiians" as otherwise defined by law.


The basis for the claims advanced during scoping was not explained in detail, so the status of the Crown and government lands under the monarchy was reviewed to determine whether any basis for such claims might exist.


As explained in Appendix E, both the Crown and government lands were set apart from the lands under the exclusive control of the king at the time of the Great Mahele. Under the monarchy, the government lands were dedicated to public purposes. The instrument by which Kamehameha III conveyed the lands that would eventually become known as "government lands" stated, with respect to the lands conveyed, that:

These lands are to be in the perpetual keeping of the Legislative Council (Nobles and Representatives) or in that of the superintendents of said lands, appointed by them from time to time, and shall be regulated, leased, or sold, in accordance with the will of said Nobles and Representatives, for the good of the Hawaiian Government, and to promote the dignity of the Hawaiian Crown.


The Crown lands were intended for the support of the king in what might be called his official capacity. Any doubt on this point was resolved in 1865, when legislation was enacted making the Crown lands inalienable and forbidding leases for more than 30 years. The preamble to this legislation, after noting the history of the Crown Lands, stated:

And whereas, the history of the lands shows that they were vested in the King for the purpose of maintaining the Royal State and Dignity; and it is therefore disadvantageous to the public interest, that the lands should be alienated, or the said Royal Domain diminished. And whereas, further, during the two late reigns, the said Royal Domain has been greatly diminished, and is now charged with mortgages to secure considerable sums of money; now therefore,

This was followed by the text of the law. Leasing was placed under the control of a body known as the Commissioners of Crown Lands. Bonds were authorized for the purpose of retiring mortgages against the property, and the proceeds of leases, less a portion to be used for discharging the bonds, were made payable to the king. By this statute, the status of the Crown lands as a public resource for the support of the head of the government, rather than the personal property of the King, was confirmed in the law of the kingdom.


Thus it clearly appears that during the monarchy, both the Crown lands and the government lands were essentially dedicated to governmental purposes. Government benefits were not apportioned by race; indeed, during the later years of the monarchy, many citizens of the kingdom were not of Hawaiian descent, but the government lands appear to have been administered for the benefit of the citizenry as a whole rather than solely for those of Hawaiian ancestry. There is no indication that during the monarchy, any individual (except the king, his wife, and his successors with respect to Crown lands) or any group or category of persons defined by Hawaiian ancestry alone, had any claim to the Crown or government lands. Indeed, even the right of the monarch to dispose of the Crown lands at his will was rejected not only by the courts and the legislature of the kingdom, but ultimately by Kamehameha V himself when he signed the 1865 legislation making the Crown lands inalienable.


Beyond the historical documents themselves, a review of respected historical works discloses no support for a position that during the existence of the kingdom, Crown or government lands were somehow intended only for the benefit of persons of Hawaiian ancestry, except perhaps for the monarch's claim to the Crown lands. With respect to the personal rights of the monarch, it should be noted that Queen Liliuokalani's claim that she held an interest in the Crown lands as her individual property, and was entitled to compensation from the United States for its loss, was carefully considered and specifically rejected by the U. S. Claims Court in 1910. In that case, entitled Liliuokalani v. U. S., 45 Ct. Cl. 418 (1910), the Queen argued that she held a vested equitable life estate in the Crown lands. After discussing the history of the establishment of the Crown lands, their treatment under the kingdom, and the 1865 legislation that made Crown lands inalienable, the court stated:

The [1848] reservations [of Crown lands] were made to the Crown and not the King as an individual. The Crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as part and parcel of the public domain.


During both the Republic and the Territorial periods, ceded lands were treated as public property and under the Territory, they were explicitly dedicated to public purposes. With the possible exception of the Hawaiian Homes Commission Act, the governing statutes neither acknowledged nor created property rights in any of these lands based on Hawaiian ancestry.


At statehood, the special status of these lands as dedicated to governmental purposes was confirmed by section 5(f) of the Admission Act, which limited the uses of ceded lands to the following:


Support of the public schools and other public educational institutions;


Betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended;


Development of farm and home ownership on as widespread a basis as possible;


Making of public improvements; and


Provision of lands for public use.

This statute established no requirement that any specific portion of the ceded lands be used for "native Hawaiians," or that any portion of the ceded lands be so used. It simply included such use among those permitted. No property rights were established in any individual or group simply by virtue of Hawaiian ancestry.


Taken together, the foregoing facts indicate that no individual has a legal claim, based on any right of property or historical practice, to any federally retained ceded lands simply by virtue of Hawaiian ancestry. As against any such claim, the government's chain of title, from a purely legal standpoint, is unimpeachable. Even if such a claim might once have existed, it would appear to be barred by the 12-year statute of limitations in the Federal Quiet Title Act.


No other valid basis was offered during the scoping process for the claim that some or all Hawaiians, racially defined, should have special status in determining the disposition of ceded lands, and no such basis has been independently identified. Of course, persons of Hawaiian ancestry, like all members of the community who are or may be affected by the decisions concerning Bellows AFS, have a variety of rights under Federal law to participate in the process leading up to those decisions.


Some questions were raised concerning the applicability to the ceded lands issue of the "apology resolution" enacted as Public Law 103-150 on November 23, 1993. this resolution apologized to "Native Hawaiians" for the U.S. role in the 1893 overthrow of the monarchy. A careful review of this resolution indicates that it is not applicable to the disposition of ceded lands at Bellows AFS. The resolution neither modifies existing rights of the United States to any of the ceded lands nor creates rights in any other person or entity. To the contrary, it contains the following express disclaimer: "Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the government," and the Senate Report on the bill (S. Rep. 103-126) states that "enactment of S.J. Res. 19 will not result in any changes in existing law." More importantly, although the resolution terms the revolt against the monarchy "illegal", it makes no similar finding on the annexation of Hawai'i by the United States or the cession of land that accompanied that annexation. All revolutions are illegal under the law of the government revolted against, but if a revolution is successful, a new de facto government comes into existence that often becomes the legitimate government of the country, entitled to international recognition and the prerogatives of a lawful sovereign. This took place with the Provisional Government and the Republic that followed it, which was the sole and effective government of Hawai'i during the years 1893 to 1898 and was recognized as such not only by the United States but also by the major world powers. The apology resolution does not state or imply that the acts of this government in ceding the former Crown and government lands to the United states were improper or illegal.


For all of these reasons, the only legal and legitimate course for the DOD in making decisions concerning ceded lands is to treat these lands just like any other lands owned in fee simple by the government, and to afford all persons, including Hawaiians and native Hawaiians, who may wish to be involved in those decisions the full range of rights provided by law, without discrimination.


Resolving claims that the ceded lands were wrongfully obtained by the United States, and that they should be returned (or compensation provided) to a class defined by race or ancestry, is beyond the scope of this EIS and the discretion committed in this action to the DOD. However, a careful review of historical records and an analysis of recent U.S. Supreme Court cases concerning racial preferences indicate that proponents of such claims may encounter difficulty in establishing either a sound factual basis for legal relief or a sound constitutional basis for such a remedy.


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