By Andrew Walden
“OK, if they ask you are you related to this person or that, just say yes, OK?”
With that instruction, non-Hawaiian sovereignty activist Shelly Stephens, who sometimes calls herself “Makaala Nakoa” sent three Hawaiians into the Hilo courtroom of Third Circuit Court Judge Greg Nakamura on February 1.
The case, Mallick v Kupa, revolves around the question of whether one Sam Kaahu actually had clear title to three “kuleana” plots in Kau in 1900 when Kaahu and his wife Kamealani sold them to Frederick W. Bartels.
The land Bartels bought became part of C. Brewer sugar plantation, serving as cane fields and then cattle grazing land over the next century until more recently being sold to Big Island landowner Monica Mallick.
Mallick initiated the quiet title action in order to eliminate any cloud emerging from questions about Kaahu’s true ownership of the properties when he sold them.
Opposing Mallick were Arthur Mahi, Karl Kunewa, and Gordon Kunewa who claimed to be heirs but presented zero evidence that they descended from any of the original owners of the kuleana plots.
Several other native Hawaiians had dropped out of the case after reviewing their genealogies and finding no tie to the original owners.
Instead Mahi filed a 23-page document coauthored by Richard Fessenden of Honaunau claiming that, " ... a stewards’s fiduciary honor to feed the flocke of our Sovereign Lord and Savior Iesus the Christ…is required to be honored in this case ... .”
In plain language, they assert any kuleana land is property of God, but his ‘stewards’, Fessenden and Mahi, will take care of it until the Second Coming.
Had Fessenden and Mahi’s motion been granted, kuleana plots would suddenly have zero value because they could not be sold or mortgaged—only returned to the self-appointed “Stewards of Jesus.”
Thousands of native Hawaiians would lose millions of dollars of property. Banks would immediately foreclose on any loans secured by the property.
From the 1850 Kuleana Act until closure of the Hawaiian Kingdom Land Commission office on March 31, 1855, 8,421 kuleana claims were awarded to Hawaiian commoners or makaainana, the vast majority of Hawaiian Kingdom subjects, equaling 28,658 acres of land—less than 1% of Hawaii’s territory. The rest of the land went to the konohiki, the alii, the King, and the Royal Government.
Fessenden and Mahi’s arguments may sound bizarre, but their theme echoes parts of the Office of Hawaiian Affairs (OHA) 2007 Legislative Package.
HB 1198 and SB 1543, which died early in the legislative session, would have given OHA, rather than the self-appointed “stewards of Jesus”, automatic legal standing in any “quiet title” actions involving a past “escheat” of kuleana lands.
Under an 1866 Hawaiian Kingdom law which stayed in effect all the way until 1987, kuleana lands returned to the control (“escheated”) of the local chief or “konohiki” when the owner dies alone without heirs and without a will. All other types of real property “escheat” back to the state.
Escheat is unusual today, but in the 1800s it was much more common because people died younger, epidemics wiped out entire families, and records were poor.
Since many cane fields include former kuleana plots which were “escheated” back to konohiki in the late 19th century, and records are poor for this type of escheat, this obscure legal issue would be a fountainhead of cash for OHA.
Many former cane fields including former kuleana plots are now prime ocean view real estate worth millions of dollars. Large sums might be offered to officials with the authority to make problems ‘go away’.
“Stewards of Jesus” is not the only bogus legal theory in the case. Stephens, in a handwritten August 24 “Motion for Discovery” refers to an alleged quote included in her September 2006 filing against the Draft Environmental Impact Statement for the Sea Mountain development in Punalu`u, Ka`u.
Stephens claims to quote Department of Land and Natural Resources employee Ernest Mahoe Collins. Stephens writes, “Mahoe stated that, ‘The Royal Patents are an original source of title…are for the subsistence of the Hawaiian People. There is no adversity of Royal Patents (RP) or Land Commissioners Awards (LCAw) nor is Quiet Title or Quick Claim applicable to Royal Patent Lands. There is no legal quiet title of royal patent lands. If the heirs do not show up to the Third Circuit (or whatever court the case is being heard) for whatever reason, the land immediately reverts back to the original Hawaiian over the entire ahupua`a.’”
Stephens refers to this alleged quote filed in Mallick v Kupa, writing, “To verify this statement you may call DLNR land agent specialist Mahoe ... For the record what is his response?”
Contacted by Hawaii Free Press and asked about the quotes attributed to him, the DLNR’s Ernest Mahoe Collins reacted with surprise saying, “That is not my statement. I have no idea what that is about. I have no idea who Shelly Stephens is. I didn’t say that.” Collins explains he is “an abstractor, not a land agent.” He emphasizes, “I am not an attorney.”
Under feudalism, land goes to the most threatening and deceitful, not those who pay for it. The average feudal “prince” had a lot more in common with Tony Soprano than with Sir Lancelot.
Testifying in Mallick v Kupa, Gordon Kunewa ignored Judge Nakamura, lead attorney Gary Grimmer and several male courtroom observers. Instead, he focused on Hilo native Jennifer Zelko, a petite 20-something in her first year of law practice, who was assisting O`ahu-based attorney, Grimmer.
Kunewa, trying to lay claim to property he had not paid for and had shown no ancestral connection to, argued: “from the Treaty of 1850, okay, our people were to be exempt from taxes, especially if the lands were royal patent lands. Now it seems like this system has opened the door for people to rip us off and take what does not belong to them away from, you know, the ohanas. And to me it’s just – that just goes to show how greedy of gain people are.” Turning to Zelko, he said, “But one day they’re all going to pay one way or another…. So apparently you were going to try and get the land for free? ....That’s just like me going into your house and ripping you off, you know what I mean.”
The “Treaty of 1850” between the Hawaiian Kingdom and the US was negotiated in 1849 and says nothing about taxes on kuleana lands, which did not exist until 1850 in any case. The Kuleana Act of 1850 does not ban taxation.
According to an August, 2000 U.S. Department of Justice report, Hawaiian Kingdom taxes included: “a kuleana land tax; a $2 school tax for males, a 50-cent horse tax, a 25-cent mule tax, and a $1 dog tax.”
These were large amounts in the 1850s and placed a substantial royal burden on the newly-landed commoners, many of whom did not yet participate in the cash economy.
Echoing Kunewa, another item in OHA’s legislative package, House Concurrent Resolution 99 and House Resolution 77 which passed the House on March 12 urge County Councils to exempt kuleana lands handed down from the original owners from property taxes.
While kuleana owners, like others, are threatened by high property taxes, to eliminate all taxes would only exacerbate the problem of unclear title by eliminating one of the methods of asserting ownership—paying the tax.
The result is that elderly owners or female owners could be threatened by abusive relatives who hunger for control of the land and take possession of it without establishing legal ownership—reestablishing a feudal pattern. By requiring payment of a token amount such as $1 per year, the county maintains a record of ownership which could be used to legally evict squatters.
Grimmer explained, “If Mr. Kunewa and Mr. Mahi…have evidence that their ancestors were any of these people…then they should have brought it to the court. The system has always been in place since Kamehameha III established land tenure in Hawai`i for them to be able to do that. But they haven’t done that. So this is not an ‘unjust taking’.…”
Judge Nakamura then ruled, “The Court will grant the motion (for Mallick) based upon the materials presented…. not on the adverse possession ground, but on the title ground….”
Kunewa exclaimed, “So what does that mean, they get the land!?!” Nakamura directed Zelko and Grimmer to exit through chambers for their safety.
Outside the courtroom, Stephens explained, “You can appeal--but it will cost $250.”
Kunewa, still not facing anybody his own size, followed Zelko out to the parking lot of the Hilo State Building. He then peeled out in his shiny pickup truck shouting, “f***ing haoles. You’re gonna get yours.”
Fortunately for native Hawaiian owners of kuleana plots, these self-appointed “stewards of Jesus” didn’t get theirs.