Reid Ginoza at 04:11, 9 March 2006

2006-03-09T04:11:58Z

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Finally, many kuleana plots liave
been claimed by persons other than the
original grantee and his heirs by
adverse possession. Adverse
possession is a legal principle that
permits a person who has occupied the
land for a statutory period in an
open, hostile, notorious, and
exclusive manner to claim title to
that land. In Hawaii, the statutory
period from 1870 until 1898 was 20
years; in 1898 it was reduced to 10
years. In 1973, it was changed back
to 20 years (7A Hawaii Rev. Stats.
§657-31). A 1978 law limits adverse
possession for rights that mature in
1978 or thereafter to claims for real
property under five acres, and to
claimants who have not asserted a
similar defense within the last 20
years (7A Haw. Rev. Stats.
§657-31.5).
Large landholders primarily have
used adverse possession to absorb the
enclosed kuleana of native Hawaiians.
Native Hawaiians have been less able
to use the doctrine to secure lands
for themselves. One reason is that if
a native Hawaiian remained on
cultivated lands after 1850 but did
not perfect kuleana rights, his
tenancy was considered permissive
rather than adverse, so he could not
claim the land by adverse possession.
To avoid problems in the future,
kuleana owners could register their
lands to prevent them from being taken
by adverse possession, 59/ or could
seek some reform in the adverse
possession laws in the State. 60/
Adverse possession cannot be claimed
for lands owned by the State or by the
United States.
Adverse Possession
Adverse possession has been
considered a problem for native
Hawaiians in continuing kuleana land
rights. (See discussion in the
preceding section.) The benefits of
the doctrine for native Hawaiians are
shown in a recent decision by a
Circuit Court in Hawaii. That case
uses the principle to benefit smaller
landholders against a large company
and to help in dividing undivided
common ownership interests. 61/ Every
state has developed a law on adverse
possession. It has been suggested
that in Hawaii the concept developed
because larger land owners wanted a
means to increase their holdings by
engulfing smaller plots owned by
native Hawaiians. 62/
Genealogical Searches
During the hearings, some concern
was expressed about the difficulty and
expense of undertaking genealogical
research in order to establish qualifications
for land that must be owned
by those of native Hawaiian ancestry.
Three circumstances related to land
ownership could give rise to the need
for such research: establishing a
legal interest in land that may be
recognized by courts in Hawaii today;
63/ qualification under the Hawaiian
Home Lands program, which provides
land to those of 50 percent or more
native Hawaiian blood; and
qualification under legislation, if
any, which could in the future be
passed to compensate native Hawaiians
for their land claims. Such research
may be expensive; in addition, without
a central site for relevant materials,
the research can be difficult indeed.
The State or the Office of Hawaiian
Affairs may be undertaking to resolve
some of these problems. 64/
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Reid Ginoza at 04:11, 9 March 2006