Kuleana Lands, OHA

Requires OHA to be made a party to all actions to quiet title to
lands where escheat is an issue.

THE SENATE                              S.B. NO.           465
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that from 1866 until 1977,
 2 Hawaii law provided that when an owner of an interest in kuleana
 3 land died intestate without heirs, that interest escheated to the
 4 konohiki owner of the ahupua`a or ili of which the kuleana land
 5 was originally a part.
 6      True escheat occurs upon the intestate death without heirs
 7 of a person having an inheritable interest in property.  In the
 8 event of a true escheat, title to the property vests in the
 9 designated successor entity at the time of the intestate death.
10      In the decades following the Mahele, many of the lands
11 surrounding kuleana passed out of the hands of the konohiki.
12 Often, the new owners of the ahupua`a or ili blocked access to
13 kuleana located within their lands, forcing the kuleana owners to
14 abandon their land.  Other kuleana owners were forced to abandon
15 their land to move to towns to seek jobs as a result of the great
16 social upheaval of the time.
17      While true escheats of kuleana occurred during this time,
18 there are many instances in which owners of lands surrounding
19 kuleana have claimed title to kuleana by escheat falsely or in

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 1 error when no true escheat ever occurred because of the existence
 2 of surviving heirs that were unknown to the surrounding owner or
 3 known but discouraged from asserting a claim by the surrounding
 4 owner, or other causes.
 5      In actions to quiet title, a surrounding owner may allege
 6 escheat and may acquire title by judicial decree because the true
 7 heirs are unknown, are not made parties, are unaware of their
 8 interest in the proceeding, or have abandoned possession of, but
 9 not the claim of title to, the kuleana.  As a result, many
10 kuleana have passed to such surrounding owners, even though there
11 was no true escheat, and in some cases no legitimate claim by
12 inheritance, no bona fide purchase, and no legitimate claim based
13 on adverse possession.
14      In 1987, the legislature enacted legislation to repeal the
15 old kuleana escheat law.  The 1987 kuleana law, now codified at
16 section 560:2-105.5, Hawaii Revised Statutes, provides that when
17 the owner of an interest in kuleana dies intestate without
18 takers, the interest passes to the office of Hawaiian affairs for
19 the benefit of its beneficiaries.  The legislature's designation
20 of the office of Hawaiian affairs as the custodian of these
21 kuleana reflects the legislature's recognition that the office of
22 Hawaiian affairs is created by article XII of the constitution
23 to, among other things, receive and hold lands in trust for

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 1 Hawaiians.
 2      The 1987 kuleana law insured that, after 1987, kuleana would
 3 not escheat to surrounding landowners but did not address the
 4 problem of false, erroneous, or baseless claims by or through
 5 escheats which are alleged to have occurred prior to 1987.
 6 Because the descendants of the original kuleana owners may not
 7 know of their claim to the kuleana, surrounding landowners may
 8 thus continue to acquire title to kuleana without a legitimate
 9 basis for doing so.  Since most alleged kuleana escheats
10 supposedly occurred in the last century, when epidemics
11 devastated entire communities and people did not routinely use
12 wills or trusts to provide for the distribution of their estates,
13 there is a substantial problem in separating improper claims to
14 ownership through alleged escheat from genuine escheat occurring
15 before 1977.
16      Under section 669-2(e), Hawaii Revised Statutes, the office
17 of Hawaiian affairs is already required to be named in most
18 actions to quiet title to kuleana lands.  It is appropriate and
19 desirable that the office of Hawaiian affairs be made a party to
20 all actions to quiet title to kuleana land in which escheat is an
21 issue, regardless of when the escheat is alleged to have
22 occurred, in order that the office of Hawaiian affairs may ensure
23 that all those seeking to quiet title to kuleana meet their legal

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 1 burden of providing that they have a valid claim and thereby
 2 prevent the unlawful acquisition of title to kuleana by those
 3 without a legitimate claim.
 4      SECTION 2.  Section 669-2, Hawaii Revised Statutes, is
 5 amended by amending subsection (e) to read as follows:
 6      "(e)  In any action brought under section 669-1, the office
 7 of Hawaiian affairs shall be joined as a defendant, by service
 8 upon the office of Hawaiian affairs, and shall have standing to
 9 appear in and contest the action, when:
10      (1)  The [land claimed by the plaintiff] property that is
11           the subject of the action is or includes an interest in
12           is kuleana land; and
13      (2)  The plaintiff has reason to believe that an owner of an
14           inheritable interest in the kuleana land died intestate
15           or died partially intestate and there is or was no
16           taker under article II of the Hawaii uniform probate
17           code[.] or the claim of title to the kuleana land is
18           based upon adverse possession.
19      In any action in which the office of Hawaiian affairs is
20 required to be joined as a defendant under this subsection, no
21 judgment shall be awarded based upon a claim of escheat which is
22 alleged to have occurred before July 1, 1977, unless the party
23 claiming by or through such escheat establishes such escheat by a

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 1 preponderance of evidence showing that the kuleana owner through
 2 whom such escheat is alleged died intestate and without heirs
 3 qualified to inherit under the law of intestate succession in
 4 effect at the time of the kuleana owner's death.  In all such
 5 actions, it may not be presumed that the kuleana owner died
 6 without such heirs unless the party claiming an escheat
 7 establishes that no such heirs can be identified despite diligent
 8 search and inquiry by that party.  In all such actions to which
 9 the office of Hawaiian affairs is required to be made a party and
10 in which no claim to the subject interest in kuleana land is
11 established, whether by escheat or otherwise, and no other person
12 or governmental agency is found to have title to such interest,
13 judgment shall be entered awarding such interest in kuleana land
14 to the office of Hawaiian affairs.
15      Nothing contained in this section shall be construed to
16 affect any escheat to the State of Hawaii occurring on or after
17 July 1, 1977, under section 560:2-105.
18      For purposes of this subsection, "kuleana land" means that
19 land granted to native tenants pursuant to L 1850, p. 202,
20 entitled "An Act Confirming Certain Resolutions of the King and
21 Privy Council, Passed on the 21st Day of December, A.D. 1849,
22 Granting to the Common People Allodial Titles for Their Own Lands
23 and House Lots, and Certain Other Privileges", as originally

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 1 enacted and as amended[.]; and "governmental agency" includes the
 2 state or county governments, or any department, bureau, division,
 3 agency, board, commission, or political subdivision thereof."
 4      SECTION 3.  Statutory material to be repealed is bracketed.
 5 New statutory material is underscored.
 6      SECTION 4.  This Act shall take effect upon its approval.
 8                              INTRODUCED BY:______________________