Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 3, 1 March 1994 — CEDED LANDS: WHERE DID THEY COME FROM ...WHERE ARE THEY GOING? [ARTICLE+ILLUSTRATION]

CEDED LANDS: WHERE DID THEY COME FROM ...WHERE ARE THEY GOING?

(First of a two part series) by Patrick Johnston Central to any discussion on native Hawaiian land and sovereignty claims are the ceded lands. In brief, ceded lands are the public and crown properties the titles to whieh were transfered to the U.S. when it annexed the Hawaiian islands in 1898. The lands trace their history to the 1848 Māhele when Kamehameha III divided Hawaiian lands among himself and his chiefs. As part of the reforms, in 1 850 his government passed laws that awarded kuleana to native Hawaiian tenant farmers and made it possible for non-Hawaiians to buy fee simple titles to land ploLs.

The king divided his portion - approximately 2.5 million acres — into two parts: 1.5 million acres for the government and one million acres for himself and his heirs. These crown and public lands were subject to the rights of native tenants and made up

the basis of what were to become ceded lands. Kamehameha divided up Hawai'i the way he did for a number of reasons. Linda Parker argues in her work, Native Amenean Estate, one reason was the fact that no one had clear title to land, making it impossible for any land user to buy or sell property. The king was bowing in part to pressure from non-Hawaiians, but by awarding significant pieces of the islands to the crown, govemment, chiefs and tenant farmers, he also wanted to keep as mueh of the traditional land divisions as possible in the face of increasing Westem influence and a rapidly declining Hawaiian popu!ation. Parker also argues that there was the belief, propagated mostly by foreien advisors, that

native Hawaiian farmers would become more industrious if they actually held title to the land they worked. OHA land officer Linda Delaney also cites as a key factor the eoneem on the part of ihe Hawaiian leadership that, if a foreign takeover of the islands took plaee, having a Western-style title to the land would provide some security for native Hawaiian land owners. The crown and govern-

ment Iands underwent significant changes between 1850 and the time of the overthrow. Although land laws created in the 1860s placed restrictions on sales of the king's land, by 1893 over 600,000 acres of government Iand had been sold or leased to private

interests, often at a discount. Both Hawaiians and non-Hawaiians purchased the land but most of the acreage was leased or belonged to foreigners. After the overthrow, the newlyformed republic claimed title to all govemment and crown lands. These lands - approximately 1 .75 million acres - were ceded to the U.S. when it annexed the islands in 1898. The Joint Resolution of Annexation and the Organic Act of 1900 set down the guidelines for goveming the new territory and the use of ceded lands. Except for lands set aside for U.S. military use, ceded lands were entrusted to the territorial govemment whieh was to use them "solely for the benefit of the inhabitants of the inhabitants of the Hawaiian Islands for educational and other public purposes."

Land divisions in Hawai'i remained mueh as they were during the kingdom, the difference being public and crown lands were now held in trust by the territorial govemment. In 1910 an amendment was made to the Organic Act to open Iands for homesteading. At the same time, Hawaiian leaders, responding to a noticeable decline in the moraI and eeonomie fabric of the native Hawaiian community, also were interested in reviving traditional ways. In 1921, the U.S. govemment passed the Hawaiian Homes Commission Act, designating 188,000 acres of ceded land for native Hawaiian homesteaders. Attorney Melody Mackenzie argues in Native Hawaiian Rights Handbook , that sugar interests, concerned that their leases would be expiring shortly, supported the legislation because most homestead lands were restricted to "marginal" areas and did not affect many leaseholders. Mackenzie writes that sugar interests also played a part in having the blood quantum set at 50

percent, thereby greatly reducing the number of Hawaiians eligible for homestead lots. In 1959, the U.S. passed the Admission Act, making the Hawai'i the 50th state. With the act, the ceded land tmst and all Hawaiian home lands moved from the hands of the territorial government to the state, Section 5 of the Admission Act out!ines the state's ceded lands responsibilities. Section 5(1) goes over where revenues from ceded lands are to be spent. (See list) One of the responsibi!ities Iaid out in section 5(f) is the "betterment of the conditions of native Hawaiians as defined by the Hawaiian Homes Commission Act." Because this definition was limited to Hawaiians of 50 percent or more Hawaiian blood, some changes had to be māde

when the state began to use these revenues for Hawaiians. OHA and the use of ceded land revenues For the first two decades after statehood, revenue from ceded lands went into the general fund, usually earmarked for education. In 1978 a constitutional convenlion was held whieh led to the creation of the Office of Hawaiian Affairs. The legislation stipulated that the office receive 2() perceiit of revenues from the from the ceded land tmst. To assure lhat OHA would be ablc lo ,serve "'all Hawaiians" and to overcome the limited definition of "native Hawaiian" as set down in the Admissions Act, mueh of the funding for OHA continued on paee 1 1

Admission Act: Section 5(f) Purposes of the ceded land trust: 1. The support of puhlie schools and other educational institutions.

2. The betterment of the conditions of Hawaiians as defined by the Hawaiian Homes Commission Act of 1920, as amended, that is, any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian islands previous to 1778. 3. The development of farm and home ownership on as widespread a basis as possible. 4. The making of public improvements. 5. The provision of lands for public use.

King Kamehameha III

Honolulu harbor: all submerged lands extending three miles off the coast are ceded.

Ceded lands as detailed in Section 5 of tbe Admission Act 5 (a) Lands owned in fee by the Territory of Hawai'i prior to statehood, including transfer of ceded lands on Sand Island the day before admission. 600 acres 5 (b) Fee title transfer of the bulk of ceded lands from federal to state ownership, including: Hawaiian Homes trust lands 188,000 acres Puhlie trust lands 1,200,000 acres 5 (e) Fee title lands retained by the U.S. government, including: National parks land 228,000 acres other 58,300 acres 5 (d) Lands retained for federal use through Executive Orders, licenses and permits, including the island of Kaho'olawe. 87,200 acres 5 (e) Federal lands returned to the state within five years of admission. 500 acres Source: Ofiice of Hawaiian Affairs

from page 10 programs was to eome from both the state and ceded lands uust revenue. Soon after the creation of the office, a dispute arose over how to determine from what revenues OHA's 20 percent share was to eome from. Many of the lands that OHA considered to be part of the trust were not included by the state as a source of revenue. There was also uncertainty about the clear definition of tmst ineome. If state lands were sold or

leased, OHA was given 20 percent, but problems arose when government land generated substantial ineome - such as harbors and airports - or when the govemment allowed private businesses to operate within public facilities. There was also a problem regarding whether to consider the gross or net incomes from ceded lands when working out the 20 percent share. Attempts by OHA to seek resolution in the courts were directed back to the Legislature. On taking

office, Gov. John Waihe'e said he would sit down with OHA and get the issue resolved. After several years of negotiations, the state and OHA agreed on a formula in whieh OHA will receive 20 percent of rents, leases, licenses, for the use of trust lands, minerals and runway landing fees. Last year OHA received payments of more that $135 million whieh represented unpaid ceded land revenues from the previous 10 years; OHA believes unresolved claims are worth more.

Federal, state, and Hawaiian home lands ceded title holders

FEDERAL Ka na'i F\aUō I H HAWAUAN ■■ HOME LANDS

O'ahu

Moloka'i

Maui

Hawai'i

Source: Office of Hawaiian Affairs