Protesters lined Kamehameha Highway near Kualoa Regional Park several times in the past week to block sheriff’s deputies from enforcing a court-ordered eviction and removing members of an extended Hawaiian family from a disputed parcel of land on Johnson Road.
Various family members have built homes and have been living on the property north of Kaneohe Bay on and off for much of the past decade. They claim the right to occupy the area as lineal descendants of the original recipient of land commission award No. 3059 issued on February 28, 1851, and Royal Patent No. 1430 granted in July 1853.
But the neighboring Kualoa Ranch has its own historic claims in the area. The ranch is a 4,000-acre family-owned cattle operation and visitor attraction whose origins date back to an original aquisition of approximately 622 acres from King Kamehameha III in 1850 by Dr. Gerritt P. Judd, who had been a personal advisor to the king.
Kualoa Ranch filed suit in early 2013 seeking a court ruling on its rival claim to have valid legal title to three disputed parcels. Its title was affirmed by the court late last year, and an eviction order was issued in January 2015 giving those on the property without the ranch’s permission 180 days to move out or face eviction.
But like many Hawaiian activists, many in the group reject the authority of the court and have vowed not to move voluntarily. They have characterized the threatened evictions as just the latest round of violence by non-Hawaiians intent on stealing their land.
After living in Kaaawa for nearly three decades, I’ve had very positive direct experiences with Kualoa Ranch and its current president and general manager, John Morgan. The ranch has been generous in its support of the Kaaawa community, and Morgan has alway seemed more than willing to sit down and work out problems.
So I decided to take a closer look at this dispute in order to get a better understanding of what’s going on behind all the rhetoric.
According to the original legal complaint filed by Kualoa Ranch, members of one extended family had been living on one of the parcels “from time to time” for several years.
They were trespassing, the suit alleges, but Morgan said last week that the ranch had other pressing issues at the time.
“It was not a priority for us,” Morgan said.
But that changed after complaints from neighbors drew the attention of city building inspectors, who began issuing citations for the illegal structures built without benefit of permits and in violation of city ordinances.
Fines for the building violations followed, and the disputed ownership meant the ranch was also being cited.
When the total owed to the city reached close to $100,000, the ranch initiated the lawsuit to clarify ownership of the parcels, and to gain clear control of the properties, Morgan said.
The lawsuit itself is an extensive title search beginning with the 1853 Royal Patents, and moving forward to trace how the properties were passed down through each generation over the past century and a half.
Two properties, known as Parcel 8 and Parcel 10, were originally awarded to Naholowaa, a “kane” or male, also known as Naholoaa. When he died, both parcels were transferred by “intestate succession,” meaning that there was no will to direct who inherited what, and by law were inherited by his son, Sabati, also known as Kapaki Naholowaa and Labati.
The properties passed through several more generations until being conveyed to Kualoa Ranch on Sept. 27, 1932.
The third property was originally awarded to Kaui by royal patent in 1853. The property later passed to Kaui’s son, then his grandson, then through additional hands before being inherited in 1920 by Kuulei Keikeiki. Finally, on Sept. 27, 1932, title was conveyed by Keikeiki to Kualoa Ranch.
All of those transfers appear relatively straightforward. In most cases, the properties passed from father to children, with surviving spouses holding property interests that expired on their deaths.
But there was one confounding event which appears to have caused a century and a half of erroneous property claims that have continued to the present.
On Aug. 1, 1865, Sabati — who inherited parcels 8 and 10 from his father, Naholowaa — and his wife, Kekala, gave up their daughter for adoption.
The daughter, Elena, was legally adopted under the laws of the Kingdom of Hawaii at the time. And under kingdom law, according to the lawsuit, Elena was no longer entitled to claim any intestate inheritance rights from her birth parents because she now had a new set of adoptive parents. As a result, she had no legal claim to any interest in the two parcels of land that had been owned by her birth father.
When Elena died in 1930, her estate did not include any mention of the properties. And they weren’t listed by any of her heirs for several generations, until appearing on properites claimed by the estates of two of her heirs upon their respective deaths in 1967 and 1972.
According to the lawsuit, the families that have occupied the properties and are now being evicted all trace their claims to Elena, daughter of Sabati and granddaughter of Naholowaa, although all of her inheritance rights had been erased by her legal adoption.
And that’s the story, as far as it goes.
In the face of this evidence, the Hawaiian defendants asserted theories that seem to offer hope. Some simply rejected the authority of the court, the State of Hawaii, and the U.S. government.
Many defendants asserted “allodial title.” The term refers to a primary form of land title that is not dependent on others. It is often used as a synonym for free simple ownership, ownership free and clear, the opposite of feudal land titles, where those on the land owed their claim to the land to the good will of a series of rulers from the king down to the local manager.
But Hawaiian activists have identified allodial title with the original royal patents that were used to distribute kuleana land in the mid-1800s following the Great Mahele. They wrongly assert that those original patents are superior to any later claims and do not change or expire, no matter what takes place during the intervening years.
As one defendant testified in the Kualoa case, having allodial title through a royal patent is “like holding an ace. There’s no higher court to trump that.”
Once you have a royal patent, they argue, your heirs can return and claim title forever despite intervening events.
Similar claims about alludial title are peddled by right-wing, anti-government, anti-tax entrepreneurs on the mainland to sell aids which they claim will allow you to avoid paying taxes or escape mortgage payments.
These are desperate arguments, bound to fail, and often are part of out and out frauds and scams, but that apparently doesn’t detract from the appeal they hold out to those without other options.
But there’s more there in the court file, more than the weighty evidence presented in support of Kualoa Ranch ownership, more than the string of land titles as they were inherited down through the years. Despite the wild theories grasped in desperation, there’s power in the voices of those fighting to hold onto land that once belonged to their ancestors, and the dreams that go with it.
Take the simple handwritten document written on a lined yellow pad that was filed by a woman who gives a Waiahole Valley Road address. She lists her ancestors back to Kaui, one of the original landholders.
“We suffer, we the petitioners … We suffer patiently without yielding, we continue to exist under condition we can afford. We live day to day. Food, shelter and clothing is our basic need …”
She goes on, describing the streams that have gone dry, making it impossible to grow taro to support themselves.
“My mother died without relief,” she writes. “I suffer her loss. We have land and we maintain it and live the best we can, there are other families that want to come home.”
She says, simply, it is their home.
What they want, she says, it to get on with their lives, build our villages, pay our taxes, etc., etc.
And, she asks, “Where do we go?”
If not here, where? It’s a haunting question.
And this is where the chain of title, the objective evidence, the minutia of the legal arguments fail, because in the end they don’t, and they can’t, answer that question.