Co-management and co-stewardship are land and resource agreements between two or more entities, often including terms about access, caretaking, and costs.

Co-management often involves a law or court order directing specific entities to make an agreement. Co-stewardship is generally voluntarily entered into by various stakeholders that are caring for an area or resource.

Indigenous peoples around the world are increasingly using both kinds of agreements to secure legal rights necessary to fulfill traditional kuleana to mālama native lands, waters, and natural resources for which title has been lost following colonization.

Often, these agreements are forged from recognized Indigenous duties and rights to places of cultural significance. These arrangements also may be encouraged or required by law or administrative policy.

In Hawaiʻi, we have secured a variety of co-management and co-stewardship arrangements between the State of Hawaiʻi, the federal government, and many organizations who have deep ties and understanding of the land and other public trust resources.

One of the larger co-management areas is the Papahānaumokuākea Marine National Monument where state, federal, and Native Hawaiian organizations co-manage the nuanced relationship of people, place, and resource.

We also have more local co-management areas that overlay co-stewardship areas like in Hāʻena, Kauaʻi, where there is co-management of the state park and its fisheries and co-stewardship of certain wahi pana (storied places), in the same area.

Hawaiʻi Revised Statutes (“HRS”) 188-22.9 (2015), is the enabling statute for the community based subsistence fishing area (CBSFA) which created a pathway for the state to work with the Hāʻena community. Under the statute, the community and enforcement agencies created and passed rules that regulate the method of fishing in the Hāʻena area.

This allows for the traditions of Hāʻena to be the “law of the land” and gives the enforcement agencies guidance on how to protect and co-manage the area as it has been for hundreds of years.

There are also relationships that look like co-stewardship or co-management because cultural practitioners found it necessary to use other means of engaging with government processes.

Some communities have used long term leases or a long term renewable permitting structure to protect and perpetuate practices on culturally significant and sensitive areas. The Fish and Wildlife Service at the Kīlauea Point National Wildlife Refuge has been working with community to ensure cultural accesses to various places within their management area through such a permitting schema.

Negotiating these agreements can be challenging requiring substantial time, painstakingly developed relationships with diverse stakeholders, and varying legal and political processes for decision-making. It can also be a long process to articulate what the community needs and wants for the nature of the co-management or stewardship.

When successful, however, these agreements can be meaningful tools for perpetuating our culture, protecting our ʻāina and wai, and protecting the role of Kānaka voices and traditional knowledge, no matter the political or social climate. He kāʻeʻaʻeʻa o ke kai loa, ʻaʻohe ʻale e hopo ai – seek the far off places and do not fear the massive swells.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

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By Devon Haia, NHLC Staff Attorney

Disasters are occurring more frequently and with greater intensity in Hawaiʻi and around the world. If disaster impacts your ʻohana, recovery is easier when your legally important documents are accessible. Here is a list of the most commonly needed documents:

Personal identification documents including: 1) driver licenses; 2) social security cards; 3) birth certificates; 4) passports; and, 5) state issued identification cards. School identification and yearbooks can also be helpful. Identification documents can be replaced if lost or destroyed, but it can take time (standard processing is 4-8 weeks). Without identification, your access may be delayed to some financial assistance. Relatedly, consider safe storage of family genealogy research and records.

Land ownership, personal property ownership, rental/tenancy, and insurance policy documents. These may be necessary after a disaster to establish eligibility for some forms of disaster assistance. Whether you rent or own, the following documents will help prove ownership or residency so you can file claims if there is damage to your home following a disaster: 1) a property deed; 2) a mortgage agreement or note; 3) a lease or rental agreement; 4) an insurance policy. Similarly, if you own any automobiles or watercraft, you will need the title, registration, and insurance policy to make any claims if there is damage.

Documents regarding trusts, estates, and familial relationships. If you or a family member currently have any of the following legal instruments, it is important to keep them accessible: 1) a last will and testament; 2) a power of attorney; 3) adoption papers; 4) orders of protection against domestic violence; or, 5) child custody or visitation agreements.

Medical Prescriptions and Equipment. If you or family members are on medication or have medically necessary equipment lost in a disaster, having a copy of the medical records for these items that you can provide to disaster relief organizations may help you access to replacements faster.

Keep originals of these documents in a secure, easily accessible location to ensure they can be quickly retrieved during an evacuation. Choose a document-storage method that fits your needs and keeps your information safe while still easy to access in an emergency.

Original documents that are not used regularly can be stored in a home safe or a bank safety deposit box. In case originals are lost or destroyed, keep digital copies, like photographs or scans, securely saved to a password-protected cloud service. For documents, like insurance policies, that are accessible online, save your login information for the relevant online systems.

Evacuating promptly and safely is the top priority during a disaster. Ensuring that these legal documents are organized and easily accessible will help reduce stress and support a smoother recovery process. Be disaster resilient by keeping these legal documents prepared and accessible.

I ka moana nō ka iʻa, liuliu ʻia nā pono lawaiʻa; While the fish are still in the sea, get your gear ready. – ʻŌlelo Noʻeau #1184

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

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By Devin Kamealoha Forrest

Following the Māhele by Kamehameha III which began in the 1840s, it was necessary to create a system which would record and confirm real property ownership.

Therefore, in 1852, under the constitution and laws passed by the king and legislature, a law was ratified for “The Recording of the Deeds of Transfer,” and under this law the Bureau of Conveyances for the Kingdom of Hawaiʻi was founded.

From then until now, not much has changed in the manner and requirements to convey real property as well as to record deeds under the State of Hawaiʻi. The initial law required that you had to record all deeds in the Bureau of Conveyance or that conveyance would be void as it related to those who bought the land without knowledge of the first sale and recorded their deed as stated by the law.

These documents recorded in the Bureau of Conveyances are extremely valuable for us now.

Previous laws required that recording documents contain the reason and method by which a property was conveyed to someone. So Kingdom era land conveyance recordings contain a plethora of information relating to genealogy, history, and rarely used terms.

Today, the public can access the Bureau of Conveyances and all its documents in the Kalanimoku Building in Honolulu to research the genealogy of land from the time of the Māhele to present.

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Na Devin Kamealoha Forrest

Ma hope o ka Māhele ʻĀina a ka Mōʻī Kamehameha III i hoʻomaka ma ka makahiki 1840, ua pono hoʻi ka hoʻokumu ʻana i kahua nāna e hoʻopaʻa a hōʻoia i ka waiwai paʻa o nā kānaka.

No laila, i ka makahiki 1852, ma lalo o ke kumukānāwai a me nā kānāwai i kau ʻia e ka poʻe i koho ʻia, ua kau a hoʻoholo ʻia he kānāwai e “No ke Kope ʻana i nā Palapala Hoʻolilo Waiwai,” a ma lalo ona i hoʻokumu ʻia ai ke Keʻena Kope o ke Aupuni o Hawaiʻi.

Mai ia wā mai, ʻaʻole nō i nui ka loli o ke koina hoʻolilo waiwai paʻa me ke kaʻina e kope ai i ka palapala hoʻolilo ma lalo o ka Mokuʻāina o Hawaiʻi. Ma lalo o ke kānāwai mua i koi ʻia ai ka pono e kope i nā palapala hoʻolilo a pau ma ke Keʻena Kope o lilo ana ke mea i kope ʻole ʻia i mea ʻole i kekahi e kūʻai ana i ka ʻāina ma hope mai me ka maopopo ʻole i ke hoʻolilo mua ʻana a i kope i kāna palapala iho e like me ke kānāwai.

He kumu waiwai nui koʻikoʻi nā palapala i kope ʻia ma ke Keʻena Kope no kākou i kēia au.

Nani ia, he mau wehewehena manaʻo kai koi ʻia e ke kānāwai ma mua i paʻa ke kumu a me ke ʻano o ka hoʻolilo ʻana i ka waiwai paʻa iā haʻi. Ma muli o ia, ua paʻa nō he mau ʻike moʻokūʻauhau, moʻolelo, a me nā huaʻōlelo waiwai no kākou mai ka wā o Ke Aupuni Mōʻī ma nā palapala i kope ʻia.

I kēia au, hiki nō i ka lehulehu ke kipa i ke Keʻena Kope me ona mau palapala ma Kalanimoku Hale ma Honolulu nei no ka ʻimi a noiʻi ʻana i ka moʻokūʻauhau o kō ʻāina iho mai ka wā o ka Māhele a i kēia wā.

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By Angela Correa-Pei, NHLC Of Counsel

Hānai – the traditional practice where someone other than the natural parents assumes kuleana for a child’s upbringing – is well-established in Hawaiian culture and common in kupuna–moʻopuna relationships. The ʻōlelo noʻeau “ʻIke aku, ʻike mai, kōkua aku, kōkua mai; pela iho ka nohona ʻohana” (Recognize and be recognized, help and be helped; such is family life) captures this spirit of mutual care. While hānai is recognized under Hawaiʻi law in some contexts, hānai mākua may need additional, formal legal status to fully meet the needs of the keiki.

Three primary legal options allow someone other than a child’s legal parents to care for and make decisions for that child: power of attorney of a minor, legal guardianship, and adoption. The right option depends on the circumstances, always centering the keiki’s best interests.

Power of Attorney of a Minor (POA)

Through a POA, a legal parent voluntarily delegates rights and responsibilities to another person to care for the child. The parent can specify what powers to grant or limit for example, authorizing medical care but restricting certain procedures. The POA must be signed before a notary and cannot exceed one year (HRS §560:5-105). It may be revoked at any time or replaced with a new POA. Because it is voluntary and temporary, a POA is most useful when parents remain active and cooperative in caregiving.

Legal Guardianship

A legal guardian has the duty and authority to make major decisions affecting a minor’s welfare (HRS §571-2). Establishing guardianship requires a court petition. The court may appoint a guardian upon finding the legal standards are met and the arrangement serves the child’s best interest. Guardianship does not permanently terminate the parent’s rights; parents may retain limited rights such as visitation. The guardianship ends when the child turns 18 or earlier if the court finds it should end. Guardians must submit annual reports to the court on the child’s wellbeing.

Adoption

Adoption creates a permanent, irrevocable legal parent-child relationship, fully transferring parental rights and responsibilities to the adoptive parents. The process requires a court hearing and findings that the child is adoptable, the petitioners are fit and able to provide care, and adoption is in the child’s best interest (HRS §578-8). Upon finalization, the court orders a new birth certificate listing the adoptive parents. Adoption permanently severs the legal ties to the biological parents.

While hānai relationships remain cherished, a formal legal status may be required to make decisions and ensure stability for the keiki. The appropriate path depends on your family’s needs and what serves the child’s best interests.

“He lei poina ʻole ke keiki; A lei never forgotten is the beloved child.” – ʻŌlelo Noʻeau #740

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

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By Liʻulā Christensen, Esq., NHLC Senior Staff Attorney

Real property taxes are burdensome but must be kept current to avoid tax liens and foreclosures. Counties offer a variety of exemptions that may apply to your property to reduce real property tax amounts.

The four counties offer a kuleana property tax exemption that reduces the real property tax on kuleana lands to at least the minimum real property tax. To qualify, the kuleana land must be owned in whole or in part by a lineal descendant of the person that received the original title to the kuleana. This lineal descent can be proven by court order or through the Office of Hawaiian Affairs’ genealogy verification services.

For the exemption, “kuleana land” means those lands awarded to native tenants pursuant to the Kuleana Act of 1850. These Land Commission Awards allowed makaʻāinana to claim lands that they were actively cultivating plus an additional ¼ acre for a house lot but required a survey and two witnesses to validate the claim. As a result, only 28,658 acres of kuleana lands were awarded to makaʻāinana.

Only Maui County recognizes that many makaʻāinana took advantage of a provision allowing them to purchase government lands at a minimum of 50 cents per acre, resulting in 167,290 acres being purchased by makaʻāinana. The County of Maui calls these lands “Kuleana Act government grant land” and offers the same tax exemption for these lands as well. Maui County is progressive in exempting the qualifying land from real property taxes, delinquent taxes, and penalties.

The other counties require payment of the minimum tax and provide no retroactive relief.

Maui County also offers the ʻĀina Kūpuna exemption for land located in the special management area owned in whole, or part, by one or more descendants of the person who owned the property at least 80 years prior to the application and assessed over $10,000 in taxes over the prior 10 years.

The owner may dedicate the property as ʻĀina Kūpuna for a period of 10 years to qualify to pay the minimum tax. Like the kuleana exemption, descendency can be proven by court order or through OHA verification. The dedicated property cannot be conveyed to a non-descendant or used for commercial purposes for the 10-year period, or it will be subject to retroactive taxes and penalties.

Finally, real property taxes are based on the assessed value, tax classification, and any applicable exemptions for the property, which may be appealed if you disagree with the county’s assessment. Deadlines to file appeals are short: Maui’s and Hawaiʻi’s assessment notices are mailed by March 15 with appeals due by April 9; for Kauaʻi, appeals are due by December 31 preceding the tax year; and for Honolulu, notices are mailed by December 15, with appeals due by January 15. If successful, an appeal may result in lower real property taxes for your property.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

The post The real property taxes for my ʻohana land are so high. How can I get it reduced? appeared first on Ka Wai Ola.

By Henderson Huihui, NHLC Staff Attorney, ʻOhana Services

There is a legal distinction between legal adoption and the traditional practice of hānai. The Hawaiian Homes Commission Act (HHCA) provides a specific list of relatives who may succeed to a homestead lease. This list includes spouse, children, grandchildren, siblings, as long as they have at least 25% biological Native Hawaiian blood quantum. The list also includes parents, nieces, and nephews, as long as they have at least 50% Native Hawaiian blood quantum, referred to in HHCA as “native Hawaiians.”

The Department of Hawaiian Home Lands (DHHL) requires one of these listed legal relationships for a successor. DHHL will not approve successors without one of the listed legal relationships and the required blood quantum.

Adoption establishes a legal familial relationship. The adopting parents will be listed on the adopted child’s birth certificate, and the adopted person qualifies as a child to the adopting parents within DHHL guidelines. Without legal adoption, hānai children are not treated as children by DHHL for successor purposes. Legal adoption is required.

Like any other child, for successorship an adopted child must be able to document at least 25% Native Hawaiian blood quantum based on their biological ancestry – not the ancestry of their adoptive parents. So, adopted children seeking to succeed in a lease held by their adoptive parents will need to document their adoption by the adoptive parents and their blood quantum based on the ancestry of their biological parents.

This can be a difficult challenge. Adoption records, such as original birth certificates, are usually sealed by court order. To gain access to these records, a court must order them unsealed. Even with unsealed records, depending on the circumstances of the adoption, the names or ancestral backgrounds of the biological parents may not be found.

Adopted children can also be treated as legal children to their biological parents for homestead successorship, thanks to a legal rule change passed in 2023. It’s important to note that for trust and estate matters, this new 2023 rule is unusual.

Normally, the law does not treat an adopted child like a continuing child to the biological parents, so families should seek legal advice for questions about the legal rules that apply to adopted and biological children in other matters beyond homesteads. This article is focused only on the rules regarding adoption and hānai relatives for Hawaiian homestead successorship.

In brief, since 2023, adopted children can be successors to their adoptive parents’ homestead and their biological parents’ homestead if they can document at least 25% Native Hawaiian biological blood quantum. For adopted people, evidencing biological blood quantum can be hard and requires a legal process to unseal court records. Without legal adoption, hānai children can only succeed as children to a biological parents’ homestead, not their hānai parents’ homestead, and the 25% blood quantum rule also applies.

Similar requirements and considerations apply to other relatives who have been adopted or hānai, including grandchildren, nieces, and nephews.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

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By Devin Kamealoha Forrest, Esq., NHLC Staff Attorney and Research Specialist

In Hawaiʻi, wills are governed by The Uniform Probate Code under Hawaiʻi Revised Statutes (“HRS”) §560. This law generally outlines three criteria which are necessary for a document to be considered a valid will.

First, the document must be in writing. Second, the document must be signed by either the testator (person making the will) or by some other individual at the direction of the testator and while in the testator’s presence. Third, the document must be signed by at least two individuals within a reasonable time after they witnessed the signing of the will or after the testator has acknowledged their own signature on the will and/or has acknowledged the will itself.

While this may seem complex for some, the Uniform Probate Code also provides a more straightforward process through the creation of a holographic will. A holographic will need only be in the testator’s own handwriting and must clearly indicate that the testator intended the document to be a will. This type of will may be a workable alternative for those who want to have something in writing to protect their assets, but do not want or are unable to afford estate planning with an attorney.

Creating a will in one of these ways does not prevent you from later amending your will or creating other estate planning documents with an attorney to protect your assets, if desired.

Any form of estate planning has become a vital tool in the preservation of ʻohana property interests. Without such planning, a common problem that can occur is real property not being conveyed in the manner an owner originally intended.

When there is no clear will or conveyance, the property will be conveyed through intestate succession, which can fracture the real property interest of an ʻohana and, in some instances, could result in the division of the real property interest in a manner not originally desired.

However, it is also important to note that you may only convey interest in land that you actually own; title or an interest in the title must already be in your name in order for the will to convey the real property interest.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

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By Devon Haia, Esq. Equal Justice Works Disaster Resilience Fellow and Staff Attorney

Whether property was recently purchased, or passed down through generations, ʻohana can use a family land trust as a legal shield to protect and preserve their land for future generations.

A trust is a legal tool used to hold title to assets. Every trust has a creator, at least one trustee, and at least one beneficiary. When an asset, such as land, is placed in a trust, title to the land splits: the trustees hold legal title and the beneficiaries hold equitable title. Legal title means the trustees can make ownership decisions for the property, such as signing a lease agreement. Equitable title means a beneficiary has the right to benefit from the property, such as splitting profit from rental proceeds.

The terms of a trust, laid out in the trust document, can dictate how the trustees must manage the land. The creators of the trust can establish clear guidelines and restrictions on how the land is to be used, which can help prevent misuse, overdevelopment, or loss. Trustees are obligated to act in the best interest of the trust and the beneficiaries. State law is the default where a trust instrument is silent.

In traditional land ownership, any person with an undivided interest in the property can sell their interest to an outside party. For example, if a property is equally owned by five siblings, one of the siblings can sell their 20% share to anyone they want. However, if the land is placed in a trust by the siblings, the trust instrument can dictate how and to whom any beneficial interest may be sold or passed. Further, if one family member with an ownership interest is irresponsible with financial management, a land trust, depending on the circumstances, may keep creditors at bay.

A trust agreement can also dictate a clear path to resolving any internal family disputes over management of the land – preventing any concern about conflict resolution.

Lastly, putting land into a family land trust prevents ʻohana from having to go through the courts to ensure title is passed to the next generation. Probate can be an expensive and lengthy process. Terms of the trust can dictate how the trustee and beneficiary interests pass from one generation to the next without having to go through probate.

This legal tool provides a way to manage family assets collectively and ensure their preservation and use for future generations.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

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By Liʻulā Christensen, NHLC Senior Staff Attorney

When multiple family members own undivided interests or shares in a single property, that property is generally considered “heirs’ property.”

Sometimes title is still in the name of a deceased relative because the property has passed down, sometimes even across multiple generations, without the legal paperwork and process required to keep the title in the name of the current, living owners. As a result, sometimes large groups of relatives can own partial interests in family land, however, they often do not have deeds or court documents listing their ownership interest in the property.

This can make it hard to secure loans with the property, which many families need for property repairs and improvements. It can also make it hard for families to allocate shares of expenses related to the property among members of the family, including taxes and maintenance costs needed to retain the property over time.

After a disaster, heirs property owners can struggle to evidence their property ownership as needed to access disaster assistance and recovery aid for their home. In 2021, the Federal Emergency Management Agency (FEMA) recognized these challenges and the need to accept alternative proof of ownership to access federal aid.

FEMA expanded the ways to prove ownership, including by affidavit in which one must declare how they are an heir to the deceased owner and the circumstances surrounding their ownership claim while providing a death certificate. Other government programs, including the debris removal program on Maui, are not so lenient.

There are numerous strategies that ʻohana can use to update title on their property and manage the property into the future. For many families, the preferred option is that everyone who has an interest in the property agree on a path forward and then enlist legal help to update the legal palapala.

One option is an agreement to create a family land trust and designate trustees that manage the property consistent with terms for the trust. Another option is to transfer ownership of the property into a family-owned corporation, with a board that manages the property and bylaws that outline the rules the board must comply with. Some families might also agree to partition the property to enable separate use, management, and ownership. Yet another option is to allow some members to buy out others and consolidate ownership into a smaller group of family members.

What makes sense for each family and property will vary depending on their unique circumstances. And, if all interested family members cannot agree, perhaps because many are involved and hard to reach, or because of disagreement, that adds complexity. Importantly, however, all interests matter, no matter how small. Obtaining legal counsel can be a critical step in assessing all the options and navigating the complex legal system to update title and maintain ʻohana lands.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.

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