I’ve heard from several folks in response to my last entry wanting to know just what in the heck that Hawaiian sovereignty stuff is all about, and what on earth would make President Clinton sign something called The Apology Bill. Well, to paraphrase Keanu Reeves in Bill and Ted’s Excellent Adventure, “Something is afoot in the Sandwich Islands.” (The movie line is actually “Something is afoot at the Circle K.”) You only have to read cases like Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, 177 P.3rd 884 (HI 2008) and Rice v. Cayetano, 528 U.S. 495 (2000), and study the history and debate over “The Native Hawaiian Government Reorganization Act of 2007,” also known as the Akaka Bill (after its sponsor, Hawaii Senator Daniel Akaka) currently pending in the United States Congress, to know that.
And not only is something afoot today, it has its origins in history. So some with me now as we step into Mr. Peabody’s Wayback Machine and set it for Hawaii. (Is the reference to the world famous Sherman and Mr. Peabody from The Rocky and Bullwinkle Show too obscure? Or am I just showing my age?)
Believe it or not, Hawaii was once a royal kingdom, governed by a monarchy. The islands were divided into separate kingdoms, and the notion of private land ownership was an alien concept. Instead of “owning” the land, the people were essentially trustees of the land, administering it on behalf of the gods. It really wasn’t until the advent of the haoles, the white interlopers I mentioned before, that land ownership crept into the culture.
As an aside, haole comes from the Hawaiian words ha, which means breath, and ‘ole, which means without, so the literal translation is “without breath” or “breathless.” One etymologist says it’s a reference to the fact that when the white people in Hawaii said their prayers, they didn’t breathe three times as the ancient Hawaiians customarily did. Another story, though, says that the Hawaiians found it hard to believe that people could be that pale and actually be alive, or draw breath. Whatever its origin, though, it’s rarely used fondly. According to Wikipedia (so take it for what it’s worth), a tradition began in Hawaii’s public schools in 1950s of calling the last day of school before the summer break “Kill Haole Day,” when native Hawaiian children would harass and sometimes assault white children. An article in the Honolulu Star Bulletin published on March 24, 1999, bore this headline: “’Kill Haole Day’ linked to hate-crime bill.”
Nope, rarely used fondly.
Now where were we? Oh, yeah, no private ownership of land. At last not officially, but the haoles were already gobbling up real estate wherever and however they could. In 1839, King Kamehameha III issued a Declaration of Rights that said that property couldn’t be taken “except by express provision of law.” Sounds good, as far as it goes. But hard on the heels of that, the King also granted the first constitution to Hawaii, which changed the nation’s absolute monarchy to a constitutional monarchy. The constitution set up a bicameral legislature and a supreme court.
It also did something that was the first real crack in the dam: it declared that, even though all land belonged to the King, it was not the King’s private property. Instead, the common people also had some claim to ownership, even though they still couldn’t acquire absolute ownership. In 1845, a Land Commission was established to investigate claims to private ownership of land that were being made by some folks, particularly haoles. The Land Commission recommended to King Kamehameha III a system of land distribution, under which the King would retain his private lands, but the remaining land would be divided equally into thirds among the Hawaiian government, the chiefs (the ali’i) and the tenants or common people.
Three years later, after much debate over this recommendation, came what’s known as The Great Mahele, or the Great Division. It began in January of 1848, but it wasn’t the equitable 1/3-1/3-1/3 originally recommended. Instead, the King ended up holding almost 2.5 million acres (roughly 60%) (it’s good to be king) and the chiefs got about 1.5 million acres. The King then divided his share into two parts, setting aside 1.5 million acres as government lands and keeping 1 million acres as “crown lands.” So the ultimate result was 1.5 million to the chiefs, 1.5 million to the government, 1 million for the king and, -- you do the math -- the good old common folks got screwed, ending up with about 28,600 acres.
And here’s where it gets interesting: an 1846 law had authorized the sale of government lands, and a second law in 1850 authorized any resident of Hawaii to own and convey land, citizen or not. By 1864, Westerners had bought over 320,000 acres of government lands. According to the Native Hawaiian Handbook (University of Hawaii Press 1991), edited by Melody Kapilialoha MacKenzie, by 1890, “Of a total population near 90,000, fewer than 5,000 actually owned land. Hawaiians, if they had any lands, owned small acreages. Consequently, for every four acres belonging to private owners, three were held by Westerners. The relatively small number of Westerners owned over a million acres.”
And something was afoot at the Circle K. Stay tuned for part three.
Mike Farris(214) 979-0100
mfarris@tiptonjoneslaw.comLabels: Hawaii, law firm, lawyers, Sovereignty
