More Aloha Jurisprudence

Resurfacing from grading long enough to comment on the Hawaii Intermediate Court of Appeals’ opinion in Makila Land Company v. Heirs of Apaa (coming soon to the Pacific Reporter), which deals with land owned by Apaa, who died in the late nineteenth century.  At issue is the question of how to translate the word “makuakana,” which appears in a 1872 lease by Momano to the West Maui Sugar Company: does it mean father or other male relative?

If the former, then Momano was the sole intestate heir of Apaa and he had title to the land conveyed in 1893 to the MLC’s predecessors.  The claimants have advanced genealogical charts, which suggest that Momano was at best a co-tenant, not the sole owner of the property.

The intermediate court of appeals overturned a summary judgment in favor of the MLC–-so the claimants have a long way to go to make out their case.  But at least now they have a chance to make out a case for their intestate claim to the land and to have their day in court, which the trial judge denied them.  It’s been picked up for discussion by some Hawaiian rights activists (and here).    It illustrates that people have some rights, which courts may recognize on occasion.  And it illustrates the increasing importance of facility with the Hawaiian language in settling land disputes.

Why isn’t this claim barred by adverse possession, you may ask?  A very good question.  Because this was summary judgment, the court didn’t address an adverse possession claim; it merely said that the claimants didn’t have an interest in the property due to intestate succession.  But if the case gets there, I suspect that one defense against a claim of adverse possession by the MLC will be that it’s very hard to adversely possess against a cotentant.  It'll be a long road before the claimants have a share of the estate, obviously, but the opinion reminds us that out in the Pacific, courts and litigants are increasingly scrutinizing transactions of long ago.  They're re-visiting what caused land loss--just as historians like Stuart Banner, Lilikala Kame'eleihiwa, and Robert Stauffer are re-visisting our understanding of the process, as well.

Shortly I’ll be talking about the Pioneer Mill case, Stauffer's Kahana, and how missionaries thought about property law.  Aloha jurisprudence has a lot of possibilities; it'll be interesting to see where this all goes.

Hat tip: Carl Christensen.  Maui Times article on the case here.

Alfred L. Brophy
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