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Home My WebLink AboutCOM 0452.018 2008-2010 William P. Kenai Mayor Lincoln S.T. Ashida Corporation Counsel Katherine A. Garson Assistant Corporation Counsel COUNTY OF HAWAI'I OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 . Hila, Hawai'j 96720-4262 . (808) 961-8251 . Fax (808) 961.i8~22 00 C>-, 2 ;,;: -1;:;.":., ,,<" "to.. November 12, 2009 J Yoshimoto, Chairman and Council Members Hawai'i County Council 25 Aupuni Street Hilo, Hawai'i 96720 Dear Chairman Yoshimoto and Council Members: On November 5, 2009, I met with those individuals that are protesting and questioning the title of the Hamakua lands. They presented a myriad of information in a very impassioned plea. I have reviewed the information provided by them, by Title Guaranty, as well as researching the Great Mahele and land title history in Hawai'i. Based on that, I've broken the types of land title found in the Hamakua deeds into several categories and will discuss them here. There are basically three types of land transactions through which Hamakua Sugar acquired title. '\, ~ Z5 Z <::::> c::::; ....... --....J :::0 :3 '.';j;: -.:J -l; c,e The first type of transaction was a Royal Patent Grant or Palapala Sila Nui. These were for Royal Patent Grants 2048, 2442 and 2441, granted in 1856-1957, for Tax Map Keys: (3)4-3-007:001 and 4-3-009:024 (pOL). These Royal Patent Grants were the result of Land Commission Awards issued by the Board of Commissioners. The holder ofa Land Commission Award was entitled to receive a Royal Patent in fee simple from the Minister oflnterior upon the payment of the agreed upon commutation (amount). This system was set up as part of the Great Mahe1e and was approved by Kamehameha III to move lands from public domain to the public and removing the danger of confiscation if a foreign power should seize the islands and seize the property of the Crown. When these lands were sold, this transfer had a secondary effect of transferring the proceeds into the government treasury. The Index of Land Commission Awards published in 1881 contained the Royal Patents issued in confirmation of Land Commission Awards prior to that date. These Royal Patents were issued to purchasers of government lands stylized as "Grants." COM No. 'I- 52 ./ i Ref. To: '~~e.J ~W1c.i L Ref. Oafe Dv 1 ~. 113 Hawai'i County is an Equal Opportunity Employer and Provider J Yoshimoto, Chairman and Council Members November 12, 2009 Page -2- Although challenged, it was decided by the Hawai'i Supreme Court in JR. Brunz v. The Minister of Interior, 3 Haw. 783 (1877) that the Minister ofInterior could lawfully issue a Royal Patent for a Land Commission Award. In Estate ofKamehameha IV, 2 Haw. 715 (1864), the Hawai'i Supreme Court held that it was not intended that the King's lands descend to the heirs of the King, rather the lands should descend to the successors of the throne, ending a fight over property held by Kamehameha III and then Kamehameha IV, who died without a will. Queen Emma had attempted to claim one-half of Kamehameha IV's estate as the intestate successor, and the other one-half as dowage. The Supreme Court held that the government lands were the lands of the throne and should pass with the throne as property of the throne. There were also Crown Lands that were the personal property of the King himself and could pass to the heirs of the estate. This clarified the status of the King's lands into Crown and government lands and recognized the character of each. The second set of lands, which represent a bulk of the properties were transferred under Land Patent Grants and transferred from approximately 1896-1920. These transfers include those in 1896 which are transferred under documents that read Royal Patent Grants. However, on closer inspection, the royal patent language is lined through, as well as the recitals of Lili 'uokalani, as Queen of the Hawaiian Islands. In their place, is the Government of the Republic of Hawai'i, issued by its President Sanford B. Dole. While at first blush it may appear to have been forged, you must clearly remember the timing of these documents. Queen Lili'uokalani was overthrown on January 17, 1893. Thus these grants were done by the government in place at the time, the Republic of Hawai'i, and they merely used the old forms. They crossed out any reference to the monarchy and Queen Lili 'uokalani. From 1897 and forward, it appears the Republic could afford to print new grants and thus from 1897, the new grants were entitled "Land Patent Grants." Under the overthrow, the Republic had claimed title to all those lands designated as government lands at the time of the overthrow. Also seized at this time were the Crown Lands, without compensation to the monarch. On July 7, 1898, Hawai'i was annexed by the United States and the lands of the Republic were also ceded to the United States. Although ceded to the United States, the lands never became the property of the United States, which recognized a special trust for these Hawaiian lands and declared that the proceeds of any sale of properties would benefit the Territory ofHawai'i's treasury for the inhabitants of the Hawaiian Islands. In 1910, Queen Lili'uokalani brought suit against the United States in the U.S. Court of Claims to recover the value of the Crown Lands. In Lili 'uokalani v. Untied States, 45 Ct. Cl. 418 (1910), the court, relying upon the earlier Hawai'i Supreme Court decision in The Estate of Kamehameha IV, supra, and the Act of January 3, 1865, J Yoshimoto, Chairman and Council Members November 12, 2009 Page -3- determined that the Crown Lands belonged to the office of the Crown and not to the individual monarch. The court stated: [T]he crown lands were treated not as the King's private property in the strict sense of the term. While possessing certain attributes pertaining to fee-simple estates, such as unrestricted power of alienation and incumbrance, there were likewise enough conditions surrounding the tenure to clearly characterize it as one pertaining to the support and maintenance of the Crown, as distinct from the person of the Sovereign. They belonged to the office and not to the individual. In essence, the court upheld the confiscation of the Crown Lands and their eventual transfer to the United States, by concluding that: It seems to the court that the crown lands acquired their unusual status through a desire of the King to firmly establish his Government by commendable concessions to his chiefs and people out of the public domain. The reservations made were to the Crown and not the King as an individual. The crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as part and parcel of the public domain. Thus ended any claims to the lands of the government or the Crown by the law of the land at the time and now, the U.S. court system. Thus, the County, as well as the State, is bound to support the laws of the United States and their rulings which still remain, and we see no further legal challenge to the Land Patent Grants. The last parcel is Tax Map Key: (3)4-3-011 :001, which was transferred by Land Court Award 697 in 1925. The Land COUli's issuance ofa Land Court Award takes place after the Land Court has reviewed the title to a parcel and the State of Hawaii stands behind that title, which is issued free and clear by the Land Court of the State. Therefore, there should be no issue for that parcel. In meeting with these Hawaiian individuals and researching the history of the Great Mahele, the overthrow of Queen Lili'uokalani, and the end of the monarchy, I can empathize with their current plight and would personally agree that as a nation they were probably wronged by those that were responsible for the overthrow, the Republic and the annexation ofHawai'i. However, the legal questions appear to have been raised numerous times and the law is currently settled. Under current United States law, the matter is settled. The Royal Patent Grants, Land Patent Grants, and the Land Court Awards all properly transferred the lands of J Yoshimoto, Chairman and Council Members November 12, 2009 Page -4- Hamakua to the original grantees and then ultimately to Hamakua Sugar or one of its alter egos and ultimately to the County ofHawai'i for real property taxes and agricultural rollback taxes. Sincerely, ~ LD T AKASE ty Corporation Counsel GT:de