{{Short description|Disputed land in the state of Hawaii}} {{for|ceded lands elsewhere|Cession}} In 1898, the [[United States Congress]] annexed Hawaiʻi based on a [[Newlands Resolution|Joint Resolution of Annexation]] (Joint Resolution).<ref name=":2"/> Questions about the legitimacy of the U.S. acquiring Hawaii through a joint resolution, rather than a treaty, were actively debated in Congress in 1898, and is the subject of ongoing debate.<ref name="Chang2015"/> Upon annexation, the [[Republic of Hawaii|Republic of Hawai‘i]] transferred approximately 1.8 million acres of Hawaiian Government and [[Crown land|Crown Lands]] to the United States (U.S.), which are today held by the [[Hawaii|State of Hawaiʻi]].<ref name=":4"/> In the 1993 [[Apology Resolution]], the U.S. government officially apologized to the [[Native Hawaiians|Native Hawaiian]] people, acknowledging that the Republic of Hawaiʻi transferred these lands "without the consent of or any compensation to the Native Hawaiian people of Hawaiʻi or their sovereign government" and that "the indigenous Hawaiian people never directly relinquished their claims . . . over their national lands to the United States."<ref>Pub. L. 103-150, 107 Stat. 1510 (1993) (Apology Resolution passed by U.S. Congress), https://www.govinfo.gov/content/pkg/STATUTE-107/pdf/STATUTE-107-Pg1510.pdf</ref> Although the lands are commonly referred to as "ceded lands" or "public lands," some refer to them as "seized lands" or "Hawaiian national lands" or "crown lands" to highlight the illegal nature of the land transfer, acknowledge different interpretations of the legal effect of the Joint Resolution,<ref name=":4" /> and to recognize that Native Hawaiians maintain claims to these lands.<ref>{{Citation|title=Senate Joint Resolution 19 to Acknowledge the Overthrow of the Kingdom of Hawai'i|encyclopedia=Asian American Society: An Encyclopedia|publisher=SAGE Publications, Inc.|isbn=9781452281902|doi=10.4135/9781452281889.n465|year=2014}}</ref><ref>{{Cite book|title=Nation Within|last=Coffman|first=Tom|date=2016-07-15|publisher=Duke University Press|isbn=9780822373988|doi = 10.1215/9780822373988}}</ref><ref>{{Cite book|title=The American occupation of the Hawaiian kingdom : beginning the transition from occupied to restored state|last=Sai, David Keanu.|oclc=663428206}}</ref> Many Native Hawaiian individuals and organizations insist on the return of title, which would be consistent with international law and recognition of the rights of Indigenous peoples, whereas others seek back rent for the use of the land.<ref name="Lindsey2009"/>
At present, control of these lands is divided mostly between the U.S. government and the [[Hawaii|State of Hawai{{okina}}i]]. There have been several efforts over the years to create an accurate inventory of ceded lands.<ref>Legislative Auditor, Final Report on the Public Land Trust 29 (Audit Report No. 86-17, 1986); Department of Land & Natural Resources, Report to the Twenty-First Legislature, Regular Session of 2001, on the Progress Towards the Completion of the State Land Information Management System (Nov. 2000). </ref> In 2018, the [[Hawai'i Department of Land and Natural Resources|Department of Land and Natural Resources]] launched the Public Land Trust Information System, a web-based inventory of state and county-managed lands.<ref>{{Cite web|url=https://pltis.hawaii.gov|title=Public Land Trust Information System|access-date=November 11, 2019}}</ref> A number of facilities, including airports and military bases, are located on former Kingdom Government and Crown lands, which contributes to controversy surrounding the issue.
==Historical background== The 1848 [[Great Māhele|Māhele]] began the conversion of Hawaiʻi's communal land tenure system to a western [[fee simple]] system for the purpose of protecting Hawaiian land in the face of encroaching foreign interests.<ref>{{Cite book|last=Beamer|first=Kamanamaikalani|title=No mākou ka mana : liberating the nation|date=May 2014|isbn=9780873363297|oclc=879583086}}</ref><ref name="Kame'eleihiwa1992"/>
On January 17, 1893, a small group of businessmen, backed by the [[U.S. Military|U.S. military]] and diplomatic personnel, illegally [[Overthrow of the Hawaiian Kingdom|overthrew]] the [[Hawaiian Kingdom]].<ref name="Annex"/> This led to the establishment of a Provisional Government (January 17, 1893 - July 3, 1894) and then the [[Republic of Hawaii|Republic of Hawai{{okina}}i]] (July 4, 1894 - August 12, 1898). The 1895 Land Act repealed most of the land laws of the Hawaiian Kingdom and merged the Government and Crown Lands – two distinct categories of landholdings with different purposes – into one category: "public lands."<ref>Act of Aug. 14, 1895, No. 26, § 2, 1895 Haw. Laws Spec. Sess. 49.</ref> The 1895 Land Act also repealed a previous 1865 law making the Crown lands inalienable, allowing commissioners of Public Lands to sell “land patents” at public auction and establish a comprehensive homesteading program on the public lands.<ref name=":1"/><ref name=":3"/> The Joint Resolution recognized the "special nature of the Government and Crown Lands, stating that their revenues and proceeds should be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.”<ref name=":2" />
==Status of lands during the territorial period== From 1900 through 1959, the United States governed Hawaiʻi as a [[territory]]. Although the U.S. asserted title to the Government and Crown lands during this period, the Territory of Hawaiʻi exercised administrative control and use of the lands.<ref name=":4" /> Funds received from disposition of these lands were to be used for the benefit of Hawaiʻi's people. Because both the 1898 Joint Resolution and the Organic Act of 1900<ref>Public Law 56-331, the Hawaiian Organic Act, April 30, 1900</ref> recognized that these lands were impressed with a unique trust, grounded in Hawaiian monarchs' duties to care for their people but now held under another government's proprietorship, some argue that Hawaiʻi's Government and Crown lands never became part of the federal public domain – "the United States received ʻlegal' title to the lands, while beneficial title rested with the inhabitants of Hawaiʻi."<ref name=":4" />
The [[Hawaiian Homes Commission Act of 1921]] (HHCA) withdrew approximately {{convert|203,500| acres}} of public land, including Crown Lands, bringing them under the jurisdiction of the Hawaiian Homes Commission, to be leased to [[Hawaiian home land|Hawaiian Homes]] beneficiaries under 99-year leases.<ref name=":4"/> By statehood in 1959, {{convert|287,078.44 |acres}} of Hawai‘i’s former Government and Crown Lands had been set aside for federal government use.<ref name=":3"/> For instance, the island of [[Kahoolawe|Kahoʻolawe]] and [[Mākua Valley]] on [[Oahu|Oʻahu]] were set aside for military use.
==Status of lands after statehood== In 1959, the U.S. Congress passed the [[Hawaii Admission Act|Hawaiʻi Admission Act]].<ref name=":5">Act of March 18, 1959, Pub. L. 86-3, 73 Stat. 4, https://www.doi.gov/sites/doi.gov/files/migrated/ohr/upload/An-Act-to-Provide-for-the-Admission-of-the-State-of-Hawai.pdf</ref> Effective upon Hawaiʻi's admission into the Union, the U.S. transferred the majority of Government and Crown lands to the [[State of Hawaiʻi]], including the HHCA lands, which assumed the role of trustee as a condition of statehood.<ref name=":4" /> Under pressure from the federal government, the new State of Hawaiʻi leased a total of {{convert|30,176.185 |acres}} back to the U.S. for sixty-five years for a dollar for each lease.<ref name=":3" /> Section 5(f) of the Admission Act establishes the state's responsibilities in relation to those lands as follows: "the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of public schools and other educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible[,] for the making of public improvements, and for the provision of lands for public use."<ref name=":5" />
Almost twenty years later, delegates to the 1978 [[State of Hawaii Constitutional Convention|State of Hawaiʻi Constitutional Convention]] acknowledged that little attention had been given to the trust language in Section 5(f) especially as it related to Native Hawaiians, and added new sections to the [[Hawaii State Constitution|State Constitution]] to implement the trust provisions.<ref name=":4" /> They created the [[Office of Hawaiian Affairs]] (OHA), and directed that OHA was to receive the income and proceeds derived from a pro rata portion of the trust revenue.<ref>Haw. Const. art. XII, § 5, https://lrb.hawaii.gov/constitution#articlexii</ref> In addition, Article XII, Section 6, of the Constitution "requires the OHA Trustees to manage and administer income and proceeds from a variety of sources, including a pro rata portion of the public land trust".<ref>Haw. Const. art. XII, § 6, https://lrb.hawaii.gov/constitution#articlexii</ref>
==Income and proceeds from trust lands== In 1980, the [[Hawaii State Legislature|State Legislature]] passed legislation requiring that 20 percent of ceded land revenues would go to OHA.<ref>Hawaii Revised Statutes 10-13.5, https://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/HRS0010/HRS_0010-0013_0005.htm</ref> Since then, the state and OHA have disagreed about which lands OHA should receive revenues from, among other issues.<ref name="Hill2019"/> In 1990, the Legislature passed Act 304, which defined how OHA’s 20 percent share would be derived. Despite this, OHA and the state remained in dispute about some categories of trust revenue, including proceeds from the [[Daniel K. Inouye International Airport|Honolulu airport]] on ceded lands. In 2001, the [[Supreme Court of Hawaii|Hawaiʻi Supreme Court]] invalidated Act 304 in the case ''OHA v. State'', but acknowledged the State's obligation: “it is incumbent upon the legislature to enact legislation that gives effect to the rights of native Hawaiians to benefit from the ceded lands trust.”<ref>''OHA v. State,'' 96 Haw. 388 (2001), http://oaoa.hawaii.gov/jud/20281.pdf</ref> In 2006, the Legislature passed Act 178, which established the interim revenue to be transferred to OHA annually as $15.1 million.<ref>Act 15, 2012 Haw. Sess. Laws 24 </ref> It also required a one-time payment of $17.5 million to OHA for past underpayments of revenues and required the [[Hawai'i Department of Land and Natural Resources|Department of Land and Natural Resources]] to conduct annual accounting for revenues from all ceded lands. In 2012, OHA and the state reached another settlement through Act 15, which resolved back payment claims from 1978 through June 2012 and transferred ten parcels of property in [[Kakaʻako]] to OHA.<ref>Act 15, 2012 Haw. Sess. Laws 24 </ref>
The controversy over public land trust revenue remains ongoing, and recent efforts to determine the actual amount of OHA's pro rata share have not been successful.<ref>{{Cite news|url=https://www.civilbeat.org/2019/04/oha-presses-for-a-bigger-share-of-money-from-hawaiis-trust-lands/|title=OHA Presses For A Bigger Share Of Money From Hawaii's Trust Lands|last=Hofschneider|first=Anita|date=April 11, 2019|work=Honolulu Civil Beat|access-date=November 8, 2019}}</ref> For example, in 2018 and 2019, relying on the definition of revenue historically agreed to by OHA and the state, data collected from agency reporting, and an analysis of underreported receipts, proposed legislation declared that the amount of revenue OHA should receive annually is closer to $35 million, not $15.1 million.<ref>S.B. 2136 and H.B. 1747, Relating to Increasing the Office of Hawaiian Affairs’ Pro Rata Share of Public Land Trust Funds (2018), https://www.capitol.hawaii.gov/Archives/measure_indiv_Archives.aspx?billtype=SB&billnumber=2136&year=2018, https://www.capitol.hawaii.gov/Archives/measure_indiv_Archives.aspx?billtype=HB&billnumber=1747&year=2018; S.B. 1363 and H.B. 402, Relating to Increasing the Office of Hawaiian Affairs’ Pro Rata Share of Public Land Trust Funds (2019), https://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=1363&year=2019, https://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=HB&billnumber=402&year=2019. </ref>
==Litigation involving the sale and transfer of trust lands== After the U.S. Congress passed the landmark [[Apology Resolution]] in 1993, the [[Hawaii State Legislature]] passed similar legislation acknowledging that many Native Hawaiians view the 1893 [[Overthrow of the Hawaiian Kingdom|overthrow]] as illegal and that lands taken without their consent should be returned.<ref>Act of July 1, 1993, No. 354, 1993 Haw. Sess. Laws 999, https://www.capitol.hawaii.gov/slh/Years/SLH1993/SLH1993_Act354.pdf</ref><ref>Act of July 1, 1993, No. 359, 1993 Haw. Sess. Laws 1009, https://www.capitol.hawaii.gov/slh/Years/SLH1993/SLH1993_Act359.pdf</ref><ref>Act of June 30, 1997, No. 329, 1997 Haw. Sess. Laws 956, https://www.capitol.hawaii.gov/slh/Years/SLH1997/SLH1997_Act329.pdf</ref><ref>Act of June 30, 1993, No. 340, 1992 Haw. Sess. Laws 803, https://www.capitol.hawaii.gov/slh/Years/SLH1993/SLH1993_Act340.pdf</ref> OHA and four individual plaintiffs filed suit to challenge a pending transfer of ceded lands and further enjoin the state from selling any other ceded lands. In January 2008, the [[Hawaii Supreme Court|Hawaiʻi Supreme Court]] ruled in favor of OHA and the individual plaintiffs.<ref name="SCOTSOH"/> The Court also determined that monetary payments would not suffice because of Hawaiians' intimate cultural and spiritual connection with the lands.<ref name="SCOTSOH" /><ref>{{Cite journal|last=Yamamoto|first=Eric K.|last2=Ayabe|first2=Sara D.|date=2011|title=Courts in the Age of Reconciliation: Office of Hawaiian Affairs v. HCDCH|journal=University of Hawaii Law Review|volume=33|pages=503–536}}</ref> The Court acknowledged: "(1) the cultural importance of the land to native Hawaiians, (2) that the ceded lands were illegally taken from the native Hawaiian monarchy, (3) that future reconciliation between the state and the native Hawaiian people is contemplated, and, (4) once any ceded lands are alienated from the public lands trust, they will be gone forever."<ref name="SCOTSOH"/>
In 2009, the [[Supreme Court of the United States|U.S. Supreme Court]] reversed, [[Hawaii v. Office of Hawaiian Affairs|overturning]] the portion of the decision based on federal law and remanding the case to the [[Supreme Court of Hawaii|Hawaiʻi Supreme Court]] to reconsider its decision based on state law.<ref>''Hawaii v. Office of Hawaiian Affairs'', 129 S.Ct. 1436 (2009).</ref><ref name="Emery"/> The majority of the suit was subsequently settled out of court, and the [[Supreme Court of Hawaii|Hawaiʻi Supreme Court]] dismissed the remaining, non-settled claims as unripe.
In 2011, a law was passed requiring a two-thirds majority approval in the Legislature for any permanent alienation of ceded lands.<ref>Act 169, 2011 Haw. Sess. Laws 579 (codified at HRS §§ 171-50(c), 171-64.7)</ref> In 2014, a law was passed requiring a simple majority approval for the proposed exchange of public lands for private lands.<ref>2014 Haw. Sess. Laws 559 (codified at HRS § 171-50(c))</ref>
==Litigation involving the state's management of trust lands== One major concern of Native Hawaiians and other Hawaiʻi residents has been the U.S. military’s use of large areas of trust land and its misuse of the land.<ref name=":4" /> In August 2019, the [[Supreme Court of Hawaii|Hawaiʻi Supreme Court]] published ''Ching v. Case'', ruling that the state has an affirmative duty to preserve and protect ceded lands.<ref>Ching v. Case, 449 P.3d 1146 (2019), https://www.courts.state.hi.us/wp-content/uploads/2019/08/SCAP-18-0000432.pdf </ref> The case involved the state’s lease of approximately {{convert|22,900 |acres}} to the U.S. military at [[Pohakuloa Training Area|Pōhakuloa]] on [[Hawaii (island)|Hawaiʻi Island]]. The court concluded that an essential part of the state’s duty is an obligation to reasonably monitor a third party’s use of the property.<ref name="Burnett2019"/>
[[Mauna Kea]] is also part of the corpus of Crown and Government Lands. Some Native Hawaiians continue reiterating that lands were illegally seized,<ref name="Lagaso 2017">{{cite web |last=Lagaso |first=Nadine |title=The truth behind the overthrow of the Hawaiian Kingdom |website=Kamehameha Schools |url=https://www.ksbe.edu/article/the-truth-behind-the-illegal-overthrow-of-the-hawaiian-kingdom |date=January 17, 2017 |access-date=2025-02-28}}</ref><ref name="Nakamura 2023">{{cite web |last=Nakamura |first=Kelli Y. |title=How Native Hawaiians Have Fought for Sovereignty |website=HISTORY |date=2023-05-10 |url=https://www.history.com/news/native-hawaiian-sovereignty-protest |access-date=2025-02-28}}</ref> that the United States and State of Hawaiʻi therefore do not have rightful [[jurisdiction]],<ref name="Casumbal2017"/><ref name="Goodyear2017"/> and have asserted a number of legal claims to this effect.<ref name="Sai 2018">{{cite web |last=Sai |first=Keanu |title=The Illegal Overthrow of the Hawaiian Kingdom Government |website=NEA |date=2018-04-02 |url=https://www.nea.org/nea-today/all-news-articles/illegal-overthrow-hawaiian-kingdom-government |access-date=2025-02-28}}</ref>
==See also== * [[Ahupuaʻa]] * [[Great Māhele]] * [[Hawaiian sovereignty movement]] * [[Hawaiian home land]] * [[Kuleana rights]]
==References== <references> <ref name=":1">{{Cite book |author=Jon M. Van Dyke |title=Who owns the Crown lands of Hawaii? |publisher=University of Hawaii Press |date=2008 |pages=188–189 |isbn=9780824832100 |oclc=896136107}}</ref>
<ref name=":2">Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, J. Res. 55, 55th Cong., 30 Stat. 750 (1898).</ref>
<ref name=":3">Robert H. Horwitz et al., Public Land Policy in Hawaii: An Historical Analysis, State of Hawaii Legislative Reference Bureau Report No. 5, at 75-76 (1969), http://lrbhawaii.info/lrbrpts/65/landhist65.pdf</ref>
<ref name=":4">{{Cite book|title=Native Hawaiian Law: A Treatise|last=MacKenzie|first=Melody Kapilialoha|publisher=Kamehameha Publishing|year=2015|isbn=9780873363426|location=Honolulu, Hawaii|pages=79–146|chapter=Public Land Trust}}</ref>
<ref name="Annex">{{Cite web |url=http://libweb.hawaii.edu/digicoll/annexation/blount.php |title=Annexation of Hawaii |website=University of Hawaii at Manoa Library |access-date=2019-10-17}}</ref>
<ref name="Burnett2019">{{Cite news |url=https://www.hawaiitribune-herald.com/2019/08/23/hawaii-news/high-court-rules-state-breached-trust-duties-at-pohakuloa-training-area/ |title=High court rules state breached trust duties at Pohakuloa Training Area |last=Burnett |first=John |date=2019-08-23 |work=Big Island Video News |access-date=2019-11-11}}</ref>
<ref name="Casumbal2017">{{Cite journal |author=Iokepa Casumbal-Salazar |date=2017 |title=A Fictive Kinship: Making "Modernity," "Ancient Hawaiians," and the Telescopes on Mauna Kea |journal=Native American and Indigenous Studies |volume=4 |issue=2 |jstor=10.5749/natiindistudj.4.2.0001 |doi=10.5749/natiindistudj.4.2.0001 |pages=1–30}}</ref>
<ref name="Chang2015">{{Cite journal |author=Williamson B.C. Chang |date=2015 |title=Darkness over Hawaii: The Annexation Myth is the Greatest Obstacle to Progress |url=http://blog.hawaii.edu/aplpj/files/2015/09/APLPJ_16_2_Chang.pdf |journal=Asian-Pacific Law & Policy Journal |volume=16 |pages=70–115}}</ref>
<ref name="Emery">{{cite news |author=Chris Emery |title=U.S. high court rules in ceded lands case |journal=[[Maui News|The Maui News]] |publisher=[[Ogden Newspapers]] |location=Wailuku, HI |date=2009-04-01 |url=http://www.mauinews.com/page/content.detail/id/516710.html |access-date=2012-10-15}}</ref>
<ref name="Goodyear2017">{{Cite journal |last=Goodyear-Kaʻōpua |first=Noelani |date=2017 |title=Protectors of the Future, Not Protestors of the Past: Indigenous Pacific Activism and Mauna a Wākea |url=https://dlnr.hawaii.gov/mk/files/2017/02/Sleighthom-exhibit-J-9.pdf|journal=The South Atlantic Quarterly |volume=116 |pages=184–94 |doi=10.1215/00382876-3749603}}</ref>
<ref name="Hill2019">{{Cite news |author=Tiffany Hill |title=What's Next for OHA |date=2019-05-01 |work=Hawaii Business Magazine |url=https://www.hawaiibusiness.com/whats-next-for-oha/ |access-date=2019-11-08}}</ref>
<ref name="Kame'eleihiwa1992">{{Cite book |title=Native land and foreign desires = ko Hawaiʻi ʻāina a me nā koi puʻumake a ka poʻe haole: a history of land tenure change in Hawaiʻi from traditional times until the 1848 Māhele, including an analysis of Hawaiian aliʻi nui and American Calvinists |author=Lilikalā Kame'eleihiwa |date=1992 |publisher=Bishop Museum Press |isbn=0930897595|location=Honolulu|oclc=27390188}}</ref>
<ref name="Lindsey2009">{{Cite journal |author=R. Hōkūlei Lindsey |date=2009 |title=Native Hawaiians and the Ceded Lands Trust: Applying Self-Determination as an Alternative to the Equal Protection Analysis |journal=American Indian Law Review |volume=34 |pages=223–258}}</ref>
<ref name="SCOTSOH">OHA v. HCDCH, 117 Haw. 174, 177 P.3d 884 (2008), rev'd sub nom., Hawaii v. OHA, 129 S. Ct. 1436 (2009), http://oaoa.hawaii.gov/jud/opinions/sct/2008/25570.htm</ref> </references>
[[Category:Indigenous land rights in Hawaii]] [[Category:Native Hawaiian history]] [[Category:Politics of Hawaii]] [[Category:Pre-statehood history of Hawaii]] [[Category:Separatism in the United States]] [[Category:Territorial evolution of the United States]]