Land dispute pits kanaka maoli vs. county

Leopold “Butch” Durant Jr.’s family has lived on open acreage near Hanama’ulu since “time immemorial.”

And, until last year, Durant, 54, and his ancestors had paid property taxes on the land after Hawai’i became a state in 1959, although Durant said the family has always lived by the konohiki system of land tenure.

But according to Durant, 54, his property tax paying days are over.

In June of 2000, Durant challenged the authority of the County of Kaua’i to assess taxes in Hawai’i.

The case moved from local courts to the state of Hawai’i Tax Appeal Court, on O’ahu.

Durant’s case went before Tax Appeal Judge Gary Chang last fall and the judge took Durant’s legal claim under advisement.

Almost five months later, Judge Chang has still not handed down a decision.

Durant believes if the Tax Court rules in his favor, other kanaka maoli’s will follow in his footsteps and “stand on the open land.”

“I am carrying it all on my shoulders now. But there are many other kanaka out there, watching,” he said.

“I’m the first one to stand up as a konohiki with the paper,” Durant noted.

In his pro se claim before the tax court, Durant prayed for tax relief, stating his belief that the taxing authority of the County of Kaua’i was illegal.

Durant displayed some evidentiary “proof” (the Royal Patent) at his farm two weeks ago.

He has patents for his land that were ratified by the American national government immediately after the Treaty of 1850, signed between the American Government and the then-still-existent and recognized Hawaiian Kingdom government.

This means, according to Durant’s claim, that the County of Kaua’i: “Must respect the existing territorial laws and not impose its own domestic laws within the occupied territory … The laws of the Hawaiian Kingdom are not terminated.”

“The kanaka maoli own the land,” Durant said, summing up not only his legal position but his personal beliefs.

In conclusion, Durant petitioned the court to among other things, “Order the Directors of Finance for the counties of Kaua’i, Oahu, Maui and Hawaii to begin … reconstruction measures to the mayors and county councils … to bring them into compliance with the standards of customary international law within the territories of the Kingdom of Hawai’i.”

Durant said the county “doesn’t even know where the taro patches (listed on the 1860 patent) are.”

“How can they tax them if they don’t know where they are? I say to them, find that taro patch,” Durant said.

Durant is convinced the land patents granted more than 140 years ago have not been superseded by state or federal laws.

Kaua’i County Attorney Hartwell Blake had a partial answer for Durant.

“Whatever our personal feelings about the overthrow (of the Hawaiian Kingdom in 1893) we are (all) bound by the Constitution of the United States and the charter of the County of Kaua’i,” Blake said.

Galen Nakamura, who represented the county at the state tax court against Durant last fall, said the county position isn’t complicated.

“Mr. Durant is contesting the county’s taxing of his property. Our belief is that the property was properly taxed,” Nakamura said.

Nakamura added that he believed Durant’s suit would have been more correctly filed in a federal court since the county and state’s taxing authority devolve from the federal government.

Kaua’i Police Chief George Freitas said he has twice recently had officers called to a small parcel of hillside land that Durant claims are national lands. The lot has been purchased by a recently arrived mainland family. They bought the property from a realtor. The small lot is less than a quarter mile from Durant’s home.

The new “owners” want to build a house. But Durant has visited the newly staked property to advise that the land in question belongs to the all the kanakas as a group, represented in this instance by the Durant family.

Freitas said property disputes are a problem for his cops, who are not lawyers but law enforcement officers.

“For the average beat officer, this is a very difficult situation. If officers show up and there are two claimants with different positions, they might want to get a temporary restraining order … If somebody has a legitimate temporary restraining order and we are called to enforce it, we will do so,” Freitas said.

“If (Durant) violates a restraining order it is a misdemeanor which carries with it a possible year in jail and a $2000 fine,” Kaua’i County Chief Deputy Prosecutor Craig De Costa said.

The thought of arrest doesn’t faze Durant.

“It would be a blessing in disguise to face a judge and present the facts to him that I have,” Durant said.

Staff writer Dennis Wilken can be reached at 245-3681 (ext. 252) and mailto:dwilken@pulitzer.net