Judge: Families should bear more burden in land ownership case

Host a hearing about Ka‘u land issues anywhere on the island, and you’re sure to draw a crowd of Native Hawaiians citing land claims from the days of Kamehameha III.

There’s also a good chance tempers will fly and harsh words will be spoken loudly.

That’s what happened Thursday, when 3rd Circuit Court Judge Greg Nakamura heard from lawyers about a 2007 case stemming from the sale of 40 acres by the Thomas Okuna family to the Ed Olson Trust. The lava-covered land, which is not oceanfront property, is makai of Highway 11.

Olson owns about 10,000 acres in Ka‘u, and put some of his own acreage into preservation for the public.

The dispute started when Okuna apparently tried to obtain a clear title of the land from relatives as promised when selling it to Olson. A 2012 public notice to identify family members ended with a bevy of people coming forward, all claiming some part of the land.

The case became a family feud writ large.

The process of determining validity of the claims has cost his client tens of thousands of dollars, Olson attorney David Higgins told the judge. He said Olson wants to identify rightful heirs, but the process of verifying them costs more than the roughly $480 worth of property each family member would have to sell, he said.

As members of the verified family die off, tracking down their heirs is further exacerbating the problem, he added. Olson doesn’t want to post another public notice to find heirs.

“Above all, we need to avoid the publicized notice because we know what that does,” Higgins said. “It’s our position it would likely entice other potential claimants with tenuous claims to the land.”

In the court’s eyes, activist Abel Lui is one of those with a tenuous claim.

Lui fought the county for years about his residence on Kawa Bay waterfront land the county bought for public preservation. He was eventually evicted and his wood-frame house dismantled.

Lui tried to intervene in the Okuna case. But an April 2014 order rejected Lui’s assertions based on “failure to state a claim upon which relief can be granted.”

Lui didn’t get any relief Thursday, either. In fact, he was escorted out of the courtroom by a cadre of state sheriffs before the hearing even got underway, after he stood up, pointed at the judge and began shouting for a chance to speak.

“I am the victim. I’m going to report a crime right here. All you guys are thieves,” Lui said, calling Olson “the biggest thief.”

“The courts have no jurisdiction over this land,” Lui added. “You guys have no business in here.”

After listening to the attorney’s arguments in the courtroom, Nakamura ordered a new way to determine rightful heirs from now on. He said instead of Olson Trust having to solicit and screen potential claimants, the families involved in the case will ensure their heirs are informed and told to come forward and verify their claim.

“They keep tabs on their own family and it’s up to the families to identify heirs and come forward,” Nakamura said.

Sharla Manley, attorney for the Native Hawaiian Legal Corp., who is representing Richard Kaluna and some of the family members being sued for clear title in the legal action, said her clients are growing old and dying in the course of the extended litigation. She seemed resigned to the judge’s order.

“In essence, the burden shifts to the family members to take care of their own family members,” Manley said afterward.

Outside the courtroom after the hearing, several Native Hawaiians crowded around Lui, showing sympathy and remarking on their own unsuccessful battles for land they see as rightly theirs.

A lot of it can be attributed to Western law not taking into account the old Hawaiian land traditions, where there was stewardship rather than actual ownership, noted Albert Haa Jr., who traces his land and his heritage back to Kamehameha III.

“They don’t like my Hawaiian ways,” Haa said.

He described it as, “We like you help me take care of God’s land,” instead of formal ownership and leases.

Families would let others farm their land, and in return receive, for example, “one bunch of bananas,” he said.

Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.