Mauna Kea and Property Provenance in Hawai'i
an incredibly complicated history
- Mauna Kea historically very sacred to Native Hawaiians.
- Evidence of religious activity since 1100 CE.
- Hawaiians began inhabiting Hawai'i around 300-600 CE.
- Ahupua'a land system began around 600-1000 CE.
- Replaced by the māhele system in the mid-19th century, encouraging private ownership; also began debates on what was Crown Lands (owned by the Monarch of Hawai'i) and what was Government Lands (owned by the Kingdom of Hawai'i).
- In re Estate of His Majesty Kamehameha IV, lands held by the Monarch will pass down to the successor Monarch, reaffirmed in An Act to Relieve the Royal Domain from Encumbrances [...] and Keelikolani v. Comm'r of Crown Lands.
- Government and Crown Lands totaled 1.8 million acres in 1898.
- Transferring of the Government and Crown lands occurred in three steps:
- King Kalākua signing the Bayonet Constitution in 1887 under duress, giving a large amount of power to the Cabinet and the Hawaiian League.
- Queen Liluo'kalani's overthrow and subsequent abdication; this also saw the 1895 Land Act, which merged the Government and Crown Lands.
- Newlands Resolution is passed, annexing Hawai'i, and the Act to Provide for a Government for the Territory of Hawai'i passes the Government and Crown Lands (now called "Ceded Lands") to the United States
- Liluokalani v. United States: Lilu'okalani sues the US in the Court of Claims that the Crown Lands were her possession and she was not compensated; Court says that her abdication to the provisional government resulted in the Crown Lands passing to the Republic of Hawaii.
- Hawaiian Home Commissions Act: passed in 1920, gave Native Hawaiians 200k acres of Ceded Land ("HHCA Land"), limited in execution by business lobbiers, who mandated a blood quantum of at least 50% Hawaiian ancestry to reap the benefits.
- Hawaii Admission Act gives most of the Ceded Lands to the State of Hawai'i in public trust ("Trust Lands"), with five permissible uses for the trust: public education, betterment of Native Hawaiians, farm and home development, public improvemets, public use
- State put all revenue into education
- 1978 Hawaii State Constitutional Convention established the Office of Hawaiian Affairs, whose board of trustees were elected only by Native Hawaiians, and required a share of Trust Lands revenue to be put into the OHA for Native American betterment.
- Apology Resolution passed in 1993; lacked any legal impact but still some significance in later legislation.
- Hawaiian Home Lands Recovery Act of 1995 required federal lands that were HHCA Lands to be returned to the Trust Lands or have the Department of Hawaiian Home Lands be compensated in either land or money.
- Legislation limited by:
- Rice v. Cayettano (2000): US Supreme Court states that the OHA's election by only Native Hawaiians violates the 15th Amendment.
- Kahawaiola v. Norton (2004): Ninth Circuit upholds DOI's decision to bar Native Hawaiians from federal regulations for Native Americans.
- Hawaii v. Office of Hawaiian Affairs (2009): US Supreme Court overrules Hawai'i Supreme Court ruling that prohibited alienation of Trust Land suntil claims of Native Hawaiians were addressed under the Apology Resolution.
- Responses to the court rulings:
- Hawaiian Homelands Homeownership Act (2012): included Native Hawaiians in Native American housing assistance.
- Doe v. Kamehameha Schools: limited Rice to the 15th amendment and that laws benefitting Native Hawaiian education could exist with anti-discrimination laws.
- Haw. Rev. Stat. § 171-64.7 requires ⅔ majority of legislature to approve gift or sale of Trust Lands.
- Property ownership of Mauna Kea is as follows:
- Held by chiefs in the ahupua'a system
- Became Government Land with the māhale
- Became Government and Crown Land
- Became Ceded Land
- Became Trust Land
- Portion leased to University of Hawai'i in 1968