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March 7, 2018 by Peter T Young 3 Comments

Land Matters

Malo notes, “The office of an independent king (Ali‘i ‘āi moku, literally one who eats, or rules over, an island) was established on the following basis …”

“He being the house, his younger brothers born of the same parents, and those who were called fathers or mothers (uncles and aunts) through relationship to his own father or mother, formed the stockade that stood as a defence about him.”

“Another wall of defence about the king, in addition to his brothers were his own sisters, those of the same blood as himself. These were people of authority and held important offices in the king’s government.”

“One was his kuhina nui, or prime minister; others were generals (pukaua), captains (alihi-kaua), marshals (ilamuku), the king’s executive officers, to carry out his commands. … So it was with the king; the chiefs below him and the common people throughout the whole country were his defence.” (Hawaiian Antiquities, Malo)

“Controversy and bitterness have arisen in recent years because of the widespread and seemingly well-established belief that land owned by early foreign settles was dishonestly acquired …”

“… either through cajoling the king or a chief, so that gifts of large tracts resulted; or through some vague arrangement whereby the common people were induced to part with their land for less than the current value.” (Pageant of the Soil, Hobbs, 1935)

Jon Osorio suggests, “The single most critical dismemberment of Hawaiian society was the Māhele or division of lands and the consequent transformation of ‘āina into private property between 1845 and 1850.”

He boldly suggests, “No one disagrees that the privatization of lands proved to be disastrous for Maka‘āinana”. He goes on to suggest, “The Māhele was a foreign solution to the problem of managing lands increasingly emptied of people.” (Dismembering Lāhui, Osorio)

Actually, some disagree.

“The accusation of dishonesty in regard to land transactions by foreigners seems to be directed most bitterly and emphatically toward the missionary group.” (Hobbs, 1935)

“The popular theory that missionaries acquired land by dishonest practice is unsupported by facts.”

However, “There is indisputable evidence that individual missionaries refused many opportunities to acquire gifts of land, either for themselves or for the mission.” (Hobbs, 1935)

“A page-by-page research of all records of land conveyance in the Territory of Hawaii was made in order to determine the amount of land acquired by each individual member of the American Protestant Mission, the amount paid for it, and, in general, the disposition made of the property.”

“In most instances it is clear that these lands were disposed of for very nominal sums and that comparatively small areas were left by will to descendants.” (Hobbs, 1935)

Hobbs notes that “Close scrutiny of the records of the Land Office in Honolulu will reveal, however, that a much larger area of land remained in the possession of Hawaiians and part-Hawaiians than is generally thought to have been the case.”

Likewise, Donovan Preza “offers a correction to the perceived results of the Māhele.” He notes “that the particularities of Hawaiian history should be properly explored, contextualized, and not be pre-judged.”

“These kinds of pre-judgments lead to a kind of colonial determinism which allows for the acceptance of less-rigorous arguments to be accepted as truth.” (Preza)

In looking at the Māhele, Preza makes the argument that “This division took place between the King and each individual konohiki whereby the rights of all of the Konohiki to the various ahupua‘a were divided.”

“These rights were codified in the 1839 Declaration of Rights. These vested rights refer to ‘interests’ in land, but these interests were segregated by class and did not imply an equality of rights between the government, Konohiki class, and Maka‘āinana class.”

“Under Kālai‘āina (the carving/distribution of land), the King can be thought to have held absolute title to land as sovereign and was the source of governance, “The Government was as exclusively in him as the titles to the lands were.” (Preza)

The Māhele ‘event’ resulted in the division of the previously ‘undivided’ rights of the Konohiki class in the dominium of Hawai‘i. The Māhele ‘event’ did not establish one’s title to land. (Preza) The first māhele, or division, of lands was signed on January 27, 1848; the last māhele was signed on March 7, 1848.

“The Māhele itself does not give a title. It is a division, and of great value because, if confirmed by the Board of Land Commission, a complete title is obtained. … By the Māhele, His Majesty the King consented that [Konohiki’s name] should have the land, subject to the award of the Land Commission” (Kenoa et al v. John Meek, October Term 1871)

After a Konohiki took their claim to the Land Commission, their rights and interests in land were confirmed and title to land was established through the issuance of a Land Commission Award.

Preza argues, “If the Māhele produced an initial dispossession, one would expect to see the majority of the land transferring into foreign hands.”

Actually, “Interpreting the Māhele as a division of land (versus rights in land), contributes to this confusion due to the large amount of land initially divided between Kauikeaouli (2.5-million acres) and the remaining Konohiki (1.5-million acres).”

Foreigners were not part of the Māhele. Some nonaboriginal Hawaiians who arrived in Hawai‘i prior to the Māhele were consolidated into the Konohiki class, such as John Young and Isaac Davis “foreigners who came and worked for Kamehameha were treated in a manner similar to kaukau ali‘i”. (Preza)

Then, the Kuleana Act was one mechanism which was used to divide out the interests of the maka‘āinana class.

Foreigners were not included in the system of Kālai‘āina and were not considered to be of the Maka‘āinana class, they were outside of it. Foreigners, even those naturalized as Hawaiian Nationals, were not considered Native Tenants and therefore, they were not eligible for a Land Commission award from the Kuleana Act. (Preza)

“On March 8, 1848, the day after the great division (Māhele) between the Konohiki class, Kauikeaouli divided the 2.5-million acres of land in his possession between his private estate and the government.”

“As a result of this division he kept approximately 1-million acres of land for himself as his private property (King’s Land) and relinquished 1.5-million acres of land to the Hawaiian Kingdom government creating what is called “Government Land”.”

“Government Lands are those lands which are considered to be used for the benefit of the country as a whole and constitute approximately 1.5-million acres. Any proceeds from Government Lands went to the government treasury and were used to benefit the citizenry of the country.” (Preza)

In 1850, a law was passed allowing maka‘āinana (the ‘native tenants’) to claim fee simple title to the lands they worked.

“The makaʻāinana were the planters and fishers who lived on (ma) the (ka) lands (‘āina;) the final na is a plural substantive.” (Handy) Or, they may be viewed as maka (eye) ‘āina (land) – ‘the eyes of the land.’ Pukui notes the name literally translates to ‘people that attend the land.’

Some suggest the foreigners bought up all the land.

In 1850, provision was made to permit foreigners equal privileges with Hawaiians; on July 10, 1850, the Hawaiian legislature passed ‘An Act To Abolish The Disabilities Of Aliens To Acquire And Convey Lands In Fee Simple’ (sometimes referred to as the Alien Land Ownership Act); it allowed: …

“That any alien, resident in the Hawaiian islands, may acquire and hold to himself, his heirs and assigns, a fee simple estate in any land of this kingdom, and may also convey the same by sale, gift, exchange, will or otherwise, to any Hawaiian subject, or to any alien, resident …” (Penal Code 1850)

At its August 19, 1850 Privy Council meeting, “Mr Wyllie brought forward & read a report of a committee appointed on the 29th April & powers enlarged on the 24th June to report respecting lands applied for by Missionaries.” The ‘Report on Missionary Lands’ was published in the Polynesian on May 7, 1852.

In part, that report notes, “The missionaries who have received and applied for lands have neither received and applied for them, without offering what they conceived to be a fair consideration for them.”

“So far as their applications have been granted, your Majesty’s government have dealt with them precisely as they have dealt with other applicants for land, that is, they have accepted the price where they considered it fair, and they have raised it where they considered it unfair.” (Signed by RC Wyllie and Keoni Ana)

WD Alexander, Superintendent of Government Survey, notes that “Between the years 1850 and 1860, nearly all the desirable Government land was sold, generally to natives. The portions sold were surveyed at the expense of the purchaser.” (Alexander, 1891)

Preza validates that and also shows Hawaiians out-purchased Non-Hawaiians. “Purchases by Hawaiians (1,856) in the 1850s alone outnumbers the total number of purchases by Non-Hawaiians (1,020) from 1846-1893. More Hawaiians bought land in the 1850s than Non-Hawaiians did between 1846 and 1893.” (Preza)

Government Grants refer to the fee-simple sale of Government Land and take the form of ‘Royal Patents’, ‘Royal Patent Grants’, or ‘Grants’. Of the 3,470 awards, 2,450 (71 percent) of the Government Grants were purchased by ‘Hawaiians’. ‘Non-Hawaiians’ purchased 1,020 awards (29 percent). (Preza)

Some blame sugar planters for buying all the land. “The Māhele of 1848 created the potential to own private property in Hawai‘i.
Immediately following the Māhele the sugar plantations were more likely to lease land rather than purchase land …”

“… due to the economic risks involved in purchasing large amounts of land with little re-sale value. Trends in the sale of Government Lands show that Hawaiians were active participants in the purchase of these lands.” (Preza)

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Na Mokupuni O Hawaii Nei-Kalama 1837
Na Mokupuni O Hawaii Nei-Kalama 1837

Filed Under: Ali'i / Chiefs / Governance, Economy, General, Hawaiian Traditions, Place Names Tagged With: Great Mahele, Hawaii, Land, Rights of Native Tenants

October 7, 2017 by Peter T Young 1 Comment

‘Native Tenants’

“Kamehameha I was the founder of the kingdom, and to him belonged all the land from one end of the islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the management of the landed property.” (Constitution 1840)

“When the Islands were conquered by Kamehameha I, he followed the example of his predecessors, and divided out the lands among his principal warrior chiefs, retaining, however, a portion in his hands, to be cultivated or managed by his own immediate servants or attendants.”

“Each principal chief divided his lands anew, and gave them out to an inferior order of chiefs, or persons of rank, by whom they were subdivided again and again; after passing through the hands of four, five or six person; from the King down to the lowest class of tenants.”

“All these persons were considered to have rights in the lands, or the productions of them. The proportions of these rights were not very clearly defined, but were nevertheless universally acknowledged.”

“The tenures were in one sense feudal, but they were not military, for the claims of the superior on the inferior were mainly either for produce of the land or for labor, military service being rarely or never required of the lower orders.”

“All persons possessing landed property, whether superior landlords, tenants or sub-tenants, owed and paid to the King not only a land tax, which he assessed at pleasure, but also, service which was called for at discretion, on all the grades, from the highest down.”

“They also owed and paid some portion of the productions of the land, in addition to the yearly taxes. They owed obedience at all times. All these were rendered not only by natives, but also by foreigners who received lands from Kamehameha I and Kamehameha II, and by multitudes still alive …”

“… of this there are multitudes of living witnesses, and a failure to render any of these has always been considered a just cause for which to forfeit the lands.”

“It being therefore fully established, that there are but three classes of persons having vested rights in the lands—1st, the Government, 2nd, the landlord (Chiefs and Konohiki,) and 3rd, the tenant (Makaʻāinana,) it next becomes necessary to ascertain the proportional rights of each.”

“Happily, evidence on this point is not wanting, though it may be the most difficult one to settle satisfactorily of any connected with land claims. The testimony elicited is of the best and highest kind.”

“It has been given immediately by a large number of persons, of a great variety of character, many of them old men, perfectly acquainted with the ancient usages of the country; some were landlords, and some were tenants.” (Land Commission Principles, adopted by Legislature October 26, 1846)

“The title of the Hawaiian government in the lands so acquired and so bona fide owned, as in the preceding sections set forth, shall be deemed in law to be allodial, subject to the previous vested rights of tenants and others, which shall not have been divested by their own acts, or by operation of law.” (Laws adopted 1846)

“Wherefore, there was not formerly, and is not now any person who could or can convey away the smallest portion of land without the consent of the one who had, or has the direction of the kingdom. These are the persons who have had the direction of it from that time down, Kamehameha II Kaahumanu I and at the present time Kamehameha III.”

“These persons have had the direction of the kingdom down to the present time, and all documents written by them, and no others are the documents of the kingdom.”

“The kingdom is permanently confirmed to Kamehameha III and his heirs, and his heir shall be the person whom he and the chiefs shall appoint, during his lifetime, but should there be no appointment, then the decision shall rest with the chiefs and House of Representatives.” (Constitution 1840)

“‘God hath made of one blood all nations of men to dwell on the earth,’ in unity and blessedness. God has also bestowed certain rights alike on all men and all chiefs, and all people of all lands.”

“These are some of the rights which he has given alike to every man and every chief of correct deportment; life, limb, liberty, freedom from oppression, the earnings of his hands and the productions of his mind, not however to those who act in violation of the laws.”

“Protection for the People declared. The above sentiments are hereby published for the purpose of protecting alike, both the people and the chiefs of all these islands, while they maintain a correct deportment, that no chief may be able to oppress any subject, but that the chiefs and people may enjoy the same protection, under one and the same law.”

“Protection is hereby secured to the persons of all the people, together with their lands, their building lots, and all their property, while they conform to the laws of the kingdom, and nothing whatever shall be taken from any individual except by express provision of the laws.”

“Whatever chief shall act perseveringly in violation of this constitution, shall no longer remain a chief of the Hawaiian Islands, and the same shall be true of the governors, officers, and all land agents.”

“But if any one who is deposed should change his course, and regulate his conduct by law, it shall then be in the power of the chiefs to reinstate him in the place he occupied, previous to his being deposed.” (Declaration of Rights, 1839)

In 1848, King Kamehameha III responded to increasing economic pressure from foreigners who sought to control land by fundamentally changing the land tenure system to a westernized paper title system.

The lands were formally divided among the king and the chiefs, and the fee titles were recorded in the Māhele book.  Lands granted in the Māhele were granted “subject to the rights of native tenants,” usually tenant farmers who already worked and resided on portions of those lands.

In 1850, a law was passed allowing these “native tenants” to claim fee simple title to the lands they worked. Those who claimed their parcel(s) successfully acquired what is known as a kuleana.

In the years that have passed since the Māhele, many of the large parcels initially granted to chiefs have changed hands through formal legal transfers of title.

Deeds executed during the Māhele conveying land contained the phrase “ua koe ke kuleana o na kānaka,” or “reserving the rights of all native tenants,” in continuation of the reserved tenancies which characterized the traditional Hawaiian land tenure system. (Garavoy)

Contemporary sources of law, including the Hawaii Revised Statutes, the Hawaii State Constitution, and case law interpreting these laws protect six distinct rights attached to the kuleana and/or native Hawaiians with ancestral connections to the kuleana.

These rights are:
(1) reasonable access to the land-locked kuleana from major thoroughfares;
(2) agricultural uses, such as taro cultivation;
(3) traditional gathering rights in and around the ahupua‘a;
(4) a house lot not larger than 1/4 acre;
(5) sufficient water for drinking and irrigation from nearby streams, including traditionally established waterways such as ‘auwai; and
(6) fishing rights in the kunalu (the coastal region extending from beach to reef).

The 1850 Kuleana Act also protected the rights of tenants to gain access to the mountains and the sea and to gather certain materials.

The Kuleana Act did not allow the makaʻāinana to exercise other traditional rights, such as the right to grow crops and pasture animals on unoccupied portions of the ahupua’a. The court’s interpretation of the act prevented tenants from making traditional use of commonly cultivated land. (MacKenzie)

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Hale_Pili-Kalihiwai-(ksbe)
Hale_Pili-Kalihiwai-(ksbe)

Filed Under: Ali'i / Chiefs / Governance, Economy, General Tagged With: Chiefs, Hawaii, Konohiki, Kuleana, Makaainana, Native Tenants, Rights of Native Tenants

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