UH law Professor Jon Van Dkyke explains key issue for future of state, both for Native Hawaiians and for general population.
Reading time: 6 minutes.
In 1898, when the United States annexed the Hawaiian Islands and transformed them into a territory of the United States, the self-proclaimed “Republic of Hawaii” “ceded” about 1.8 million acres of lands to the United States.
This transfer remains surrounded by controversy, because the participation of U.S. military and diplomatic officials in the 1893 overthrow of the Kingdom of Hawaii has been recognized to be “illegal” and a violation of international law by the U.S. Congress in the 1993 Apology Resolution, which also says that the transfer of the lands in 1898 was “without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government.”
The Republic of Hawaii was established by the Western settlers who led the rebellion against Queen Liliuokalani in January 1893 after it became clear that President Grover Cleveland would not support annexation of the islands to the United States.
When William McKinley became President in 1897, he did support annexation, but the annexation was opposed by many in Hawaii and elsewhere, and it was completed in 1898 only through an unprecedented procedure. Because the Senate would not provide the two-thirds majority needed to ratify the draft treaty between the United States and the Republic of Hawaii, a joint resolution was passed by a simple majority of both the Senate and the House of Representatives, and scholars still debate whether this procedure was consistent with the requirements of the U.S. Constitution.
Nonetheless, despite these many legal complexities, the term “ceded lands” is widely used now to refer to the lands in Hawaii that were transferred to the United States at the time of annexation. These lands were the lands that had been categorized by the Kingdom of Hawaii as “Crown Lands” and “Government Lands,” and these two types of lands were combined into “Public Lands” by the Republic of Hawaii and later by the United States after annexation.
During the pre-contact period and until the Mahele (division) of 1846-48, the Aina (land) in Hawaii was shared by the Native Hawaiian people, under the leadership of their Moi (king) and Alii (chiefs). King Kamehameha III introduced a system of private land ownership during the Mahele to keep the lands in Hawaiian hands, because he thought that even if Hawaii were to be taken over by one of the European powers seeking to expand its empire, the new sovereign would respect private property rights.
Ironically, when Hawaii was finally taken over by the United States, much of the privatized land had already been acquired by Western settlers and the remaining public land was simply claimed by the United States without any consultation with the Native Hawaiians or compensation to them.
The “Crown Lands” were the lands (about a million acres, or one-fourth of the Aina of the islands) that Kamehameha III retained for himself in the Mahele. He managed these lands as his own, as did his successor Kamehameha IV. But when Kamehameha IV died in 1863 without a will, a contentious judicial dispute occurred between his widow (Queen Emma) and his successor (Kamehameha V) over who should receive the lands. The Hawaii Supreme Court ruled in favor of Kamehameha V, explaining that a monarch needed to have lands to fulfill his responsibilities to his people, and at this point the Crown Lands changed character and were declared to be inalienable in a statute passed by the Hawaii Legislature in 1865. The Crown Lands were then managed by a three-member Board of Commissioners of Crown Lands, and most of these productive lands were leased to sugar plantations, with revenues going to support the monarchy. They thus remained largely intact when the Kingdom was overthrown in 1893.
The “Government Lands” were the lands transferred to the government itself in the Mahele, to be used for various public purposes. They originally consisted of about 1.5 million acres, but substantial amounts were sold during the Kingdom period, and about 800,000 acres remained in this category at the time of the overthrow.
The leaders of the Republic of Hawaii, particularly its president, Sanford Ballard Dole, wanted to break up the Crown and Government Lands into homesteads for small farmers, and they enacted the Land Act of 1895, which repealed the 1865 statute and allowed the Crown Lands to be sold. Fortuitously, however, almost all the Crown Lands were tied up in long-term leases to the sugar plantations, and thus could not in fact be broken up during the Republic period. All told, 46,594 acres of Crown and Government Lands were sold by the Republic between 1895 and 1898.
After annexation, the United States recognized that the lands it acquired in Hawaii were unique and said in both the 1898 Joint Resolution of Annexation and the 1900 Organic Act that the laws governing public lands generally in the United States should not apply to them, and that the revenues from these lands should go to the inhabitants of the islands. An 1899 opinion of the U.S. Attorney General also stated that these lands should be considered to be “a special trust.”
These lands have continued to be kept more-or-less intact since 1898. About 200,000 acres were set aside for the Hawaiian Home Lands Program in 1921 and the federal government has retained about 350,000 acres for military bases and national parks. But almost all the lands remain in public hands and continue to be viewed as being held in trust. The 1959 Admission Act confirmed that the some 1.4 million acres transferred to the new State of Hawaii had a trust status and that the revenues from these lands should be used for public purposes, including “for the betterment of the conditions of native Hawaiians.”
In a case brought by the Office of Hawaiian Affairs and individual Hawaiians to protect these lands from alienation until the claims of the Native Hawaiians can be resolved, the Hawaii Supreme Court stated in January 2008 that Congress and the Hawaii State Legislature agreed that “the ceded lands were illegally taken from the native Hawaiian monarchy” and it thereby imposed a moratorium on any further transfers of these lands until the claims are addressed. This ruling was vacated by the U.S. Supreme Court on the ground that the Hawaii Court had relied too heavily on the 1993 Apology Resolution, but the Hawaii Legislature then almost immediately passed a statute (Act 176 (2009)) stating that none of the public lands in Hawaii (whether ceded or not) can be sold or transferred without a two-thirds vote by both chambers of our Legislature.
This statute has had the effect of establishing a virtual moratorium on any transfer of any lands that were formerly categorized as Crown or Government Lands during the Kingdom.
So, the “ceded lands” are the lands that were Crown Lands or Government Lands during the Kingdom of Hawaii, that “were illegally taken from the native Hawaiian monarchy” at the time of the 1893 overthrow, and that were subsequently “ceded” to the United States in 1898 without any compensation to Native Hawaiians. The Native Hawaiians have a powerful claim to these lands, and the lands are now being maintained under a virtual moratorium until that claim can be addressed and resolved.
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