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State bill would help Native Hawaiians fight quiet title actions

By Staff | Mar 12, 2020

HONOLULU – With no opposition, Senate Bill 749 Passed Third Reading on March 3 and was transmitted to the House.

The bill for an act relating to actions for quiet title was referred to the Senate Committee on Judiciary (JDC) on Jan. 24, 2019, and was carried over to the 2020 Regular Session at the end of last year.

The purpose and intent of the measure is to: “(1) Require mandatory mediation upon request of any defendant in a quiet title action when any portion of the land claimed by the plaintiff is kuleana land; and (2) Provide that the plaintiff shall bear the reasonable costs of the mediation and limit the costs recoverable.”

Testimony was received in support of SB749 from the Office of Hawaiian Affairs; Ka Lahui Hawaii Political Action Committee; We are One, Inc.; 29 individuals; and a form letter containing 99 signatories.

The form letter helps to explain the legalese and reasoning behind the measure.

“Kuleana lands were granted to Kanaka Maoli tenant farmers between 1850 and 1855 and include gathering, access, and agricultural rights as well as the right to build a dwelling.

“Only 8,205 Kanaka Maoli received Kuleana lands that account for less than one percent of Hawaiian Kingdom lands. Many of these awards were adversely possessed by corporations like sugar and pineapple plantations, but a precious few are still in the same families today keeping their ancestral tie to their lands.

“Having paid fees and taxes for these lands for over 170 years, many of these families don’t have the economic means of hiring attorneys for costly court cases to defend their lands.

“Mandatory mediation and consolidation of quiet title actions helps to reduce costs for Kanaka Maoli Kuleana land owners.

“Consolidating separate quiet title actions into one for the same kuleana land award will keep costs down for the defendants and prevent the Plaintiff from saying one thing in one case and another in another case.

“Plaintiffs shall bear the cost of mediation or other court fees. There should be no situation where the defendants should have to bear the cost of mediation in order for someone trying to quiet title or ‘legally steal’ their lands.”

The Office of Hawaiian Affairs (OHA) agreed with the testimony in support of SB749, but in different words.

“Kuleana land parcels (kuleana), many of which have been passed down from original awardees through multiple generations of heirs, often represent the last vestige of the legal recognition originally granted to Native Hawaiian families’ traditional tenure of ancestral lands.

“Today, maintaining a connection to family kuleana continues to be critical for many Native Hawaiians to maintain a connection to their ancestors and ancestral lands, as well as to uphold the traditional practices, lifestyles, and values that derive from their cultural and family heritage.”

Further, the OHA letter explains how quiet title and adverse possession have been used to “forcibly sever the connection between Native Hawaiian families and their kuleana.”

“The current framework of quiet title action continues to leave kuleana vulnerable to dispossession, including through the use of complex and cost-prohibitive legal processes that effectively foreclose quiet title defendants, i.e. kuleana owners, from challenging quiet title actions and adverse possession claims.”

State of Hawaii Public Access Room Coordinator Virginia Beck explained the current and potential status of SB749.

“The bill will continue to be referred to as SB749, but now it will be considered by the House. The next thing you’ll see is it passing First Reading in the House, and then it will be referred to committees. It will have to get through the committees by the Second Decking deadline (April 3) and be voted on for the Third Reading on the floor by Second Crossover (April 9). If it’s referred to more than one committee, other deadlines like the Triple Referral (March 12) or Second Lateral (March 20) may also apply,” she noted.

“After Second Crossover, its fate is determined by whether or not it was changed while it was in the House.

“If it wasn’t changed, the Senate will enroll the bill to the governor for signature, veto, or enactment without signature.

“If it was changed, the Senate has to decide whether or not they agree to the House’s changes. If they do, they vote on the bill, and it goes off to the governor. If they disagree with the changes, the bill goes into conference to try to resolve the differences between the two versions.”

Meanwhile, in the foothills of West Maui, Kuleana landowners are under attack.

Next week, learn how these families are attempting to defend their Native Hawaiian rights.