‘Quiet title’ law not good enough for Hawaiians

A mere month after Facebook CEO Mark Zuckerberg inadvertently rained attention onto the conundrum of kuleana land ownership, the Legislature is taking some needed, overdue steps toward aiding Native Hawaiians and others against the forced sales of such legacy lands.

House Bill 860 aims to amend Hawaii’s quiet title law, which allows lawsuits that ask a court to determine rightful owners of lands, including kuleana lands that were passed down through generations without recorded documents. Over history, lack of such documentation has worked against Native Hawaiians; culturally, land ownership was conferred via spiritual and caretaking connections, not paper deeds and titles.

Over generations, though, ownership rights grew increasingly complicated since one parcel could be fractured among dozens or even hundreds of relatives. Under quiet title law, an action called “partition” allows a property stake-owner to ask a judge to compel auctioning the land to a single high bidder if it can’t be physically divided among all owners. That stake-owner can be a relative, but sometimes — as in Zuckerberg’s recent case on Kauai — it’s a wealthy outsider who’s acquired a family member’s share in order to force a sale by all owners.

That’s where HB 860 is needed, to counter the forcing of such land auctions and to give descendants more of a fighting chance to retain their land entitlements if they so choose. The bill would mandate mediation between plaintiffs and defendants, and seeks to lessen the financial burden on land descendents who opt to fight the forced sale.

Such changes to the law would at least give blood-line land title-holders more say in the process, and disallow plaintiffs from recovering much of their attorney fees and costs from defendants, which is the deterring situation now. Both changes are important to buttress indigenous rights when going up against a monied, quiet-title claims plaintiff. HB 860 has cleared one committee and moves to the House Judiciary Committee.

Quiet title and partition is not uncommon in Hawaii, but the optics for billionaire Zuckerberg were unseemly when he filed several lawsuits in December to try to gain clear title of 14 kuleana land parcels embedded within his 700 acres on Kauai bought two years ago for $100 million. To his credit, Zuckerberg vowed to drop his lawsuits after last month’s highly publicized backlash and after learning more of the dark side of Hawaii land history.

Ironically, thanks to his global celebrity, people near and far are learning about kuleana lands — the complicated history, undocumented tracts, generations of dormant ownership and current entanglements. Under the Kuleana Land Act of 1850, Hawaii residents were awarded land by Hawaiian government officials; over generations, some descendents weren’t even aware of their sliver of claim and in some cases, savvy major landowners overtook unclaimed parcels.

While some lineal descendents have no qualms about selling their fractious stake to land they never even knew they had, some Native Hawaiian descendants have embraced their newfound inheritance as well as newfound kin. The connection to land and heritage can be strong — once discovered.

For those land-title owners who choose to sell, it’s a fair transaction. But for others who feel strongly about keeping the land in the family, however diluted the interest, HB 860 offers valuable tools to fight for retaining their stake — particularly as more wealthy outsiders covet their own private piece of a Hawaiian paradise.