‘Quiet title’ actions harm Hawaiians

‘A‘ohe hana nui ke alu ‘ia.

No task is too big when done together by all.

— Mary Kawena Pukui, Olelo No‘eau, Hawaiian Proverbs and Poetical Sayings (1983)

The news related to the recent filings of quiet title and partition actions for land on Kauai by entities controlled by Facebook founder Mark Zuckerberg continues to cause great concern and consternation. It appears that the main reasons for the piqued interest in Zuckerberg’s lawsuits is that people seem to be fascinated with his ability to use his wealth to create his own private sanctuary and that his actions here are somehow unprecedented with respect to their impact on Hawaiians. That impact will, unfortunately, be nothing new.

While clearly an unintended consequence, the introduction of the concept of private property through the 1848 enactment of the Mahele, or division of lands of the Hawaiian Kingdom, set in motion the continued alienation of Hawaiians from their ancestral lands. Before this significant shift, Hawaiians traditionally viewed and treated land as a member of their family and clearly not something that could be owned and bought or sold.

Land and water were the foundations of their survival; ‘aina, that which feeds, and wai, the source of all life. Many of Hawaii’s maka‘ainana, the commoners who held this traditional view and practiced its resultant principles, found themselves strangers in their own land during the transition from their traditional view, lifestyle and relationship with the land, to this new and foreign commodity driven concept necessitated for the most part by ever increasing and dominating western influences.

Although the Kuleana Act of 1850 let the maka‘ainana petition the Land Commission for title, most tenants were uninformed of the law or unable to pay for a required survey of their lands and found themselves, as a result, landless. Less than 1 percent of the land available via the act was awarded. Many of those who were awarded a kuleana soon realized that in order to live in a cash-driven economy, they would have to abandon their kuleana and move to the city to work for a wage. Still others found themselves locked out by cattle ranching and mono-crop agriculture.

These realities provide some insight into why there are descendants who are completely unaware of their interest in land. As these commercial operations wound down, landowners sought to obtain clear title to their lands through quiet title actions to enable the sale, development or use of these same lands for other commercial purposes.

The vast majority of defendants in these quiet title actions have been, and will continue to be, the lineal descendants of the original Hawaiian awardees of kuleana subsumed within these properties. For the lineal descendants of the original awardees, the possibility of losing their connection to the land can be tantamount to a loss of identity, a diminishment of their family history and the foundation of who they are as a Hawaiian.

And one is not uninjured because he or she was not aware of his or her connection to ancestral land. In fact, that result may perhaps be the harshest injustice of all. Such a sad legacy begs for a better, pono way forward.

In my mind, it is no coincidence that Zuckerberg finds himself with an unprecedented opportunity to epitomize pono action for a community and end, or at least minimize, the injustices of the past. This better, pono way forward will, however, require that we all look to and learn from the past so that we may begin to live together in a more cooperative and neighborly way today.

In this instance, our collaborative efforts must be focused on honoring the real intent of the Mahele.

Moses K. N. Haia III is executive director of the Native Hawaiian Legal Corporation, a nonprofit, public interest law firm; a main reason for its creation in the 1970s was to provide affordable legal aid to Native Hawaiians named as defendants in a flood of quiet title actions filed by plantation and ranch owners/operators.