The Hawaiian word for ʻlaw’ or ʻrule’ is kānāwai – it is interesting to note that the literal translation of kānāwai is ʻrelating to water.’ Traditional Hawaiian law initially developed around the management and use of water. (Sproat)
Emma Metcalf Beckley Nakuina, Commissioner of Private Ways and Water Rights, wrote an article “Ancient Hawaiian Water Rights and Some Customs Pertaining to Them” published in 1893 in Thrum’s Hawaiian Annual. The following are portions of that article.
Water rights were primarily for lo‘i (pondfields,) that is, for kalo (taro) culture; potato patches, bananas or sugar cane had no recognized claim on a water right in the rotation.
The cultivation of these, regarded as dry land crops, were invariably during the rainy season except in the Ko‘olau or wet districts. Sugar cane and bananas were almost always planted on lo‘i banks (kuauna) so as to ensure a sufficiency of moisture from the seepage or ooze between them.
Each ‘auwai (water courses) had a proper name and was generally called after either the land, or chief of the land that had furnished the most men, or had mainly been instrumental in the inception, planning and carrying out the work.
All ‘auwai tapping the main stream were done under the authority of the Konohiki of an ahupua‘a, ‘ili or ku. In some instances, the Konohiki of two or three independent lands united in the work of ‘auwai making.
‘Auwai were generally dug from makai (seaward or below) upwards. The different ahupua‘a, ‘ili or ku taking part in the work furnished men according to the number of cultivators on each land.
The dams were always a low loose wall of stones with a few clods here and there, high enough to raise water sufficiently to flow into the ‘auwai. No ‘auwai was permitted to take more water than continued to flow in the stream below the dam.
The general distribution of the quantity of water each independent land was entitled to was in proportion to the quota of hands furnished by each land, but subject to regulations as to distance from source of supply. (There was no limit to the number of laborers any land might furnish.)
The konohiki of the land controlling the most water rights in a given ‘auwai was invariably its luna. He controlled and gave the proportion of water to each mo‘o‘āina (kuleana) or single holding of the common people cultivating on that land.
In ancient times the holders of a water right were required whenever it became their turn in the water rotation or division to go up with the luna wai (superintendent) to the water head or dam to see that it was in proper condition …
… follow down the ‘auwai from there, removing all obstructions which may have fallen in or had been carried down by the water during the night from the kahawai or mountain stream …
… shut off all branch ‘auwai or runlets from the main ‘auwai, except those conducting water to lo‘i entitled to water at the same time, the luna wai – who should be with him during all this time – making the necessary division by means of a clod, stone or both; the water holder continuing to follow the water until it entered his lo‘i and the koele in his charge.
Bordering on the upper portions of most ‘auwai were small lo‘i limited in size and number, generally on a hillside, or on the borders of a gulch.
These lo‘i were generally awarded kulu or drops; that is, they were entitled to continual driblets of water, and no one having a water share may turn the water entirely away from them unless, in times of scarcity, it should be seen that these lo‘i were full to overflowing.
It was a strictly enforced custom, that should any water right holder neglect to go, or furnish a substitute at the periodical ‘auwai cleanings, repairs of dam, etc., water would be withheld from the land of the absentee until such time as he should see fit to resume work for the benefit of what might be termed the shareholders of that ‘auwai .
It sometimes occurred that a land originally entitled only to a small portion of water, but afterwards held or presided over by an industrious, energetic man; whose popularity attracted many to live under him, would be accorded an increased supply in consequence of his promptly furnishing as many or more hands than some land entitled to more water than his.
After this had continued some time, the water-luna would recognized the justice of an increased supply for his land, and would either take a portion of water from any land failing in its due quota of hands, or as was more frequently done, simply adding a day, night, or both to the rotation; letting his land have the added time.
Anyone in the olden times caught breaking a dam built in accordance with the Hawaiian’s idea of justice and equity, would be slain by the share holders of that dam, and his body put in the breach he had made, as a temporary stopgap, thus serving as a warning to others who might be inclined to act similarly.