Images of Old Hawaiʻi

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Early History of the Judiciary

The early history of the Hawaiian Judiciary may be divided into three periods: the first, which may be briefly described as the period of absolute government, extending from the earliest migrations of Hawaiians to the Islands (about 1000 to 1840.)

Pā‘ao (CA 1300,) from Kahiki (Tahiti,) is reported to have introduced (or significantly expanded) a religious and political code in old Hawai‘i, collectively called the kapu system. This forbid many things and demanded many more, with many infractions being punishable by death.

Anything connected with the gods and their worship was considered sacred, such as idols, heiau and priests. Because chiefs were believed to be descendants of the gods, many kapu related to chiefs and their personal possessions.

While the social order defined very strict societal rules, exoneration was possible if one could reach a puʻuhonua (place of refuge) and be cleansed, as well as cleared by a kahuna (priest).

The puʻuhonua was especially important in times of war as a refuge for women and children, as well as warriors from the defeated side.

The second period of the early judicial system, a period that is referenced as the time of constitutional government, extending from 1840 to 1893; the third is a brief transitional time (through the Provisional government and Republic) leading to association with the United States (Territory and now State.)

During the first period, the system of government was solely through the actions of the high Chief. Under this system all functions of government, executive, legislative and judicial, were by the paramount chief (with advice from his council of chiefs, kahuna and other advisors.)

At the time of Cook’s arrival (1778-1779), the Hawaiian Islands were divided into four kingdoms: (1) the island of Hawaiʻi under the rule of Kalaniʻōpuʻu, who also had possession of the Hāna district of east Maui; (2) Maui (except the Hāna district,) Molokaʻi, Lānaʻi and Kahoʻolawe, ruled by Kahekili; (3) Oʻahu, under the rule of Kahahana; and at (4) Kauaʻi and Niʻihau, Kamakahelei was ruler.

The Judiciary was established during the reign of Kamehameha I (1789-1819) with three grades of courts: the National or Supreme, presided over by the King; the Island or Superior, presided over by the respective Governors.

There were two classes of District or Inferior Courts, presided over by the under-Chiefs and the Tax Officers respectively, with concurrent jurisdiction as to territory but different as to subject matter.

The Judicial divisions were also established during this period: the Islands of Oahu (1st Circuit) and Hawaii (3rd Circuit) each constituting one and the Islands of Maui (2nd Circuit) and Kauai (4th Circuit) with their adjacent smaller islands, respectively, constituting the others.

These divisions remained unchanged until the Act of 1892 to reorganize the judiciary went into effect January 1, 1893, when the Island of Hawaii was divided into two circuits, the Third and the Fourth, and Kauai which formerly constituted, with its adjacent islands, the Fourth Circuit, was designated as the Fifth. (Lydecker) (Hawai‘i Island later consolidated into the 3rd Circuit and Kauai went back to being the 4th Circuit.)

The Constitution of 1840 provided for the Executive, Legislative and Judicial divisions of the government, but was not very clear as to the powers of each. Under it the Island Courts continued to be held by the respective Governors more by custom than by the express language of the Constitution.

The Constitution empowered the Governors to appoint the Judges, as was done by the Governors of Hawaii and Kauai in 1844, when special judges were appointed for foreign cases and by Governor Kekūanāoʻa of O‘ahu, when, on September 19, 1845, he appointed Lorrin Andrews to act as his substitute in all such cases.

The Supreme Court was established by the Constitution of 1840, which provided that the King should be the Chief Judge of the Supreme Court. Also ‘The Representative body shall appoint four persons whose duty it shall be to aid the King and Premier, and these six persons shall constitute the Supreme Court of the Kingdom.’

The Act of 1846 to Organize the Executive Departments provided that until the passage of an Act to Organize the Judiciary Department, there should be appointed one or more judges to sit at Honolulu, with original jurisdiction in cases involving over one hundred dollars in value, and appellate jurisdiction in all other cases from all the local courts of the Kingdom in cases involving less than one hundred dollars in value.

Under this act Lorrin Andrews was appointed June 24, 1846, as one of the judges, and on November 30 of that year William L Lee as another, the two to act jointly or severally. These appointments were to hold until the passing of the Act to Organize the Judiciary. This Court was the forerunner of the Supreme Court as now established.

The Supreme Court of the Hawaiian Islands was established by the Act of September 7, 1847 to Organize the Judiciary, and was first designated as the Superior Court. Previous to the establishment of Territorial Government, Justices of the Supreme Court held life commissions.

The Organic Act fixed a stated term of four years, subject to removal by the President of the United States. Now Justices are appointed for an initial ten-year term; after initial appointment, the Judicial Selection Commission determines whether a justice will be retained in office. A justice may not serve past age 70.)

Under the Act of 1847 to Organize the Judiciary Department, the Circuit Courts, to some extent, took the place of the former Governors’ Courts. In each circuit there were to be two judges.

The Constitution of 1852 provided for their appointment of judges by the King with the approval of the Privy Council. Under the Constitution of 1864 (promulgated by the King upon his own authority) the appointing power was vested solely in the King.

The Attorney General’s Department was organized by the Act approved April 27, 1846. The Legislature of 1862 passed an Act providing that the King may appoint an Attorney-General, and the Constitution of 1864 made the appointment compulsory.

By 1866, the need for a new courthouse government building in the Hawaiian Kingdom was apparent. The old courthouse, completed in 1852, accommodated not only the judicial needs, but also served as the reception hall for diplomatic ceremonies and official social functions.

On February 19, 1872, Kamehameha V laid the cornerstone for the new building, Ali’iolani Hale. The use of concrete blocks, a fairly new building material, “infinitely superior for both durability and ornament,” was recommended and accepted by Public Works.

To increase the work force, convicts were brought from the prison and made to labor on the project. In 1874, during the reign of King Kalākaua, the building was finally completed.

Today, Ali’iolani Hale houses the Supreme Court of Hawai`i, the court administration offices, a law library, and the Judiciary History Center.

Open to the general public and welcoming visits from classroom students, the Judiciary History Center reflects the unique legal and judicial history of our islands from the days of kapu law to the present – from chiefs to monarchy to statehood.

The image shows Ali‘iolani Hale in 1875, shortly after it was completed. The King Kamehameha Statue that now stands in front of the building was unveiled on February 14, 1883, during the coronation ceremonies for King Kalākaua. (Lots of information here is from Thayer, Lydecker and Judiciary History Center.)

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8-Aliiolani_Hale-1875

by Peter T Young 2 Comments

Niuhelewai

The ahupua‘a of Kapālama has two streams, the Kapālama and the Niuhelewai (“coconut going (in) water”). They merge and extend through the central fertile area also called Niuhelewai. This area drained into a pond called Kūwili II.

John Papa ‘Ī‘ī described the appearance of the trail (around the year 1810) from Nuʻuanu to Moanalua through Kapālama: “When the trail reached a certain bridge, it began going along the banks of taro patches, up to the other side of Kapālama, to the plain of Kaiwiʻula …”

While somewhat general, the ‘Ī‘ī account supports that of von Kotzebue in relating an abundance of lo‘i where the main trail crossed Nuʻuanu Stream, a relatively uncultivated plain as the trail traversed Kapālama and Kaiwi‘ula, and then more lo‘i on Kalihi Stream (Cultural Surveys)

“(O)n the south and west, spread the plain of Honolulu, having its fish-ponds and salt making pools along the sea-shore, the village and fort between u and the harbor, and the valley stretching a few miles north into the interior, which presented its scattered habitation and numerous beds of kalo in its various stages of growth …”

“Through this valley, several streams descending from the mountains in the interior, wind their way, some six or seven miles watering and overflowing by means of numerous artificial canal the bottom of kalo patches, and then, by one mouth, fall into the peaceful harbor.” (Hiram Bingham)

Haumea, the goddess of childbirth, had a home at Niuhelewai in Kapālama; Haumea, sometimes identified with Papa, or the Earth mother, was a female akua that with ‘great source of female fertility.’ She married Wākea and later married Hāloa, her husband’s son by his own daughter Hoʻohokukalani. She is considered the mother of Pele and of Pele’s siblings

In chants she is called Haumea ‘of mysterious forms, of eightfold forms, of four hundred thousand forms.’ One of her commonly known forms, however, is the breadfruit tree. There is no single word haumea in Hawaiian, but hau can mean “a ruler” and mea can mean “reddish (like red earth). (King)

Niuhelewai was the location for a famous battle between Kahekili’s forces and the O‘ahu ruling chief Kahahana.

At the time of Captain Cook’s arrival (1778,) the Hawaiian Islands were divided into four kingdoms: (1) the island of Hawaiʻi under the rule of Kalaniʻōpuʻu, who also had possession of the Hāna district of east Maui; (2) Maui (except the Hāna district,) Molokaʻi, Lānaʻi and Kahoʻolawe, ruled by Kahekili; (3) Oʻahu, under the rule of Kahahana; and (4) Kauaʻi and Niʻihau, Kamakahelei was ruler.

Kahahana was high-born and royally-connected. His father was Elani, one of the highest nobles in the ʻEwa district on Oʻahu, a descendant of the ancient chiefs of Līhuʻe. While still a child, Kahahana was sent to Maui to live with Kahekili. (Fornander)

Then, Oʻahu chiefs selected Kahahana to be their leader (this was the second island chief to be elected to rule Oʻahu; the first was Māʻilikūkahi, who was his ancestor.)

Kahahana left Maui and ruled Oʻahu. When war broke out between Kalaniʻōpuʻu of Hawaiʻi Island and Kahekili in 1779, Kahahana had come to the aid of Kahekili. Later, things soured.

“At that time Kahekili was plotting for the downfall of Kahahana and the seizure of Oʻahu and Molokaʻi, and the queen of Kauaʻi was disposed to assist him in these enterprises.” (Kalākaua)

In the beginning of 1783, Kahekili sought to add Oʻahu under his control. Kahekili invaded Oʻahu and Kahahana, landing at Waikīkī and dividing his forces in three columns (Kahekili’s forces marched from Waikīkī by Pūowaina (Punchbowl,) Pauoa and Kapena to battle Kahahana and his warriors.)

Kahahana’s army was routed, and he and his wife fled to the mountains. For nearly two years or more they wandered over the mountains, secretly aided, fed and clothed by his supporters, who commiserated the misfortunes of their former king. Kahahana was later killed.

Some of the remaining Oʻahu chiefs sought revenge and devised a wide-spread conspiracy against Kahekili and the Maui chiefs. The plan was to kill the Maui chiefs on the same night in the different districts.

However, before they could carry out their plan, Kalanikūpule found out their intentions and informed his father, Kahekili. Messengers were sent to warn the other chiefs, who overcame the conspirators and killed them. (Apparently the messenger to warn the chiefs in Waialua was too late and the Maui chiefs there were killed.)

Gathering his forces together, Kahekili overran the districts of Kona and ʻEwa, and a war of extermination ensued. This event was called Kapoluku – “the night of slaughter.” (Newell)

Men, women, and children were massacred; all the Oahu chiefs were killed and the chiefesses tortured. (Kamakau) The waters of the Niuhelewai stream were turned back, the stream being dammed by the corpses. (Fornander)

Kalaikoa, one of the Maui chiefs, scraped and cleaned the bones of the slain and built a house for himself entirely from the skeletons of the slaughtered situated at Lapakea in Moanalua. The skulls of slain Oʻahu chiefs adorned the doorways of the house. The house was called “Kauwalua.” (Lots of information here is from Fornander, Kamakau and Cultural Surveys.)

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Niuhelewai-Fish_Ponds_at_Honoruru,_Oahu,_by_John_Murray,_after_Robert_Dampier-(WC)-1836
Niuhelewai-Fish_Ponds_at_Honoruru,_Oahu,_by_John_Murray,_after_Robert_Dampier-(WC)-1836

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ʻĪmaikalani

Although he was blind, his hearing was keen. He also had two “birds” (guards) who give warning when anyone approached. He reigned in the time of ʻUmialīloa; ʻĪmaikalani was the first chief of Kaʻū who is said to have control over parts of Puna.

ʻĪmaikalani was famed for his stroke that never misses. Famous for his strength and skill in warfare, several chiefs were killed by him in battle.

He had a left thrust and a right thrust which were terrible, and if he threw a long spear to the right or to the left hand there was a roaring as of thunder, and flashes as of lightning, and a rumbling sound as of an earthquake; and if be twirled his spear at his back the dust arose in volumes as whirlwinds. (Fornander)

ʻUmialīloa feared ʻĪmaikalani.

Whenever a bird cried, there was a man. ‘Where is his club?’ Imaikalani asked. ‘On the right side.’ ‘A left stroke will get him.’ When the other lashed he missed, but when the blind man lashed, his opponent was struck from head to abdomen. (Kamakau)

ʻUmi ordered Omaokamau to go and fight Imaikalani. When Omaokamau heard this he proceeded to the home of Imaikalani. When Omaokamau was drawing near the home of Imaikalani the birds sounded a note.

At this note of warning from the birds ʻĪmaikalani said to his men: ‘Say, there is a man.’ The men said: ‘There is nobody.’ ʻĪmaikalani remarked: ‘Watch out.’

While the two men were watching, Omaokamau soon after appeared. The men then said to ʻĪmaikalani: ‘Yes, there is a man, he is coming, and he carries a war club in his hand.’

ʻĪmaikalani said: ‘That is Omaokamau, one of the warriors of ʻUmi; he is well versed in the art of throwing the spear; his main strength is in his right arm, his left is weak; watch him and see when he twirls his war club.’

When Omaokamau came up to the men he stood and twirled his war club. When the two men saw this, they said to ʻĪmaikalani: ‘The man is twirling his club.’ (Kamakau)

When ʻĪmaikalani heard the report of his two men, he stood up and began twirling his club. Omaokamau struck his club to his right, but somehow ʻĪmaikalani warded off the blow by the use of his club and the first blow aimed by Omaokamau missed.

They again twirled their clubs and after a time Omaokamau struck to his left, but again his blow was warded off and he again missed ʻĪmaikalani. After this second miss Omaokamau turned around and returned to Umi.

When he came up to ʻUmi, Omaokamau said ‘The eyes of ʻĪmaikalani are both sightless but his thinking powers are faultless. I fought him for a time, but he warded off my blows so skillfully that I was afraid of him and so I came back.’

While Omaokamau was reporting to ʻUmi, Koi then started off and went as far as the place where the birds were stationed. When he heard the birds give the note of warning, which was also heard by ʻĪmaikalani, ʻĪmaikalani sent his two men to go and see who it was.

When the men came out they saw a man, so they reported to ʻĪmaikalani: ‘It is a large man with dark skin and the hair on his head is curly.’ ʻĪmaikalani replied: ‘That is Koi; he is also very skillful in the use of the war club, but he is strong in the left arm and weak in the right; he is just like Omaokamau.’

When Koi came up to his opponents he began twirling his war club; after attempted strikes, Koi saw that he could not get the best of ʻĪmaikalani and he turned around and returned to ʻUmi – telling him, ‘No warrior can stand before ʻĪmaikalani”.

While Koi was giving his account of the encounter, Piimaiwaa spoke up to Koi: “The bones of a youngster-like you could not be old enough; here are the bones that are well matured.” But, he, too, was unable to best his opponent.

After the lapse of some tens of days, Omaokamau met a man who asked ‘Why is it that ʻĪmaikalani has not been slain by your people?” Omaokamau answered: ‘I don’t know why.’ The man said: ‘He can be slain, it can be done easily. It will not take much of an exertion.’

The man (one of ʻĪmaikalani’s kahili bearers) then told Omaokamau, ‘The birds which sit on the outside are his eyes, and it is by them that he is warned of the approach of any person. On hearing this warning he prepared himself for the conflict.’

‘The men with him are also his eyes; they are the ones who tell him when the enemy is near and this gives him a chance to use his wits and to defend himself. But if the birds and the men are first killed then ʻĪmaikalani can be slain, he will not escape.’

When Omaokamau heard this from the man, he stood up and started off to carry out the advice given him. When he came up to the place where the birds generally sat he crept up cautiously and struck them with his club, killing them. He then turned to ʻĪmaikalani and poked him in the stomach with the point of his club, killing him.

In explaining to ʻUmi how he killed ʻĪmaikalani, Omaokamau said “to kill ʻĪmaikalani, you must first kill the birds and the two watchmen, who are ʻĪmaikalani’s guards and who give him warning of the approach of any person. Kill the birds and the men, then you will be able to kill ʻĪmaikalani. That is how I was able to kill him.” (Fornander) (The image shows Imaikalani, drawn by Brook Parker.)

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Imaikalani-Brook_Parker
Imaikalani-Brook_Parker

by Peter T Young Leave a Comment

Kamakahonu

“The view of the king’s camp was concealed only by a narrow tongue of land, consisting of naked rocks, but when we had sailed round we were surprised at the sight of the most beautiful landscape.”

“We found ourselves in a small sandy bay of the smoothest water, protected against the waves of the sea; on the bank was a pleasant wood of palm-trees, under whose shade were built several straw houses …”

“… to the right, between the green leaves of the banana-trees, peeped two snow-white houses, built of stone after the European fashion, on which account this place has the mixed appearance of a European and Owhyee village”.

“(T)o the left, close to the water, on an artificial elevation, stood the morai (heiau) of the king, surrounded by large wooden statues of his gods, representing caricatures of the human figure.” (Kotzebue, visiting in 1816)

Several large and densely populated Royal Centers were located along the shoreline between Kailua and Hōnaunau. One such center was located along the north end of Kailua Bay at Kamakahonu.

Kamakahonu (lit. turtle eye) was possibly established as early as the sixteenth century by ʻUmi-a-Līloa. It was during the early nineteenth century that Keawe a Mahi, a kahu of Keaweaheulu presided over Kamakahonu, and upon the death of Keawe a Mahi, Kamakahonu became the residence of Kamehameha I.

During Kamehameha’s tenure at Kamakahonu several structures were erected using both traditional materials and techniques and more “modern” materials and techniques.

Kamehameha first moved into the former residence of Keawe a Mahi. He then built another house on the seaward side of that residence, that was referred to as hale nana mahina ‘ai.

This house was built high on stones and faced directly upland toward the planting fields of Kūāhewa. Like an observation post this house afforded a view of the farm lands and was also a good vantage point to see canoes coming from South Kona and from the Kailua vicinity. (Rechtman)

Much of the following is from John Papa ‘Īʻi’s book, ‘Na Hunahuna no ka Moʻolelo Hawaii’ (Fragments of Hawaiian History;) he was a member of the Kamehameha household.

‘I‘i describes that the “King erected three houses thatched with dried ti leaves,” a sleeping house (hale moe) and separate men’s (hale mua) and women’s (hale ‘āina) eating houses. The hale ‘āina belonged to Kaʻahumanu, and as ‘I‘i described:

“This house had two openings in the gable end toward the west, and close to the second opening was the door of the sleeping house. A third opening was in the end toward the upland.”

“There were three openings in the sleeping house. The one in the middle of the west end, one which served as a window on the upland side of the southwest corner, and one mauka of the window. This window lay beyond the men’s house (mua) on the south. The door mauka of the window was the one entered when coming from the men’s house.”

“The door of the men’s house closest to the sleeping house was the one used to go back and forth between these two houses. There was also a door in the end wall on the west side of this house, and two small openings in the south seaward corner, one in the upper side and one on the lower side of the corner.”

“These faced the many capes of Kona and took in the two extremities of this tranquil land and the ships at anchor. However, should the ships be more to the ocean side, only the masts were visible.”

“A fifth opening was a little on the seaward side of the northeast corner, where the upland side of the men’s house extended a little beyond the sleeping house, and it was only through this entrance that the men went in and out. It was near the door that was used to enter from the sleeping house.”

“Near the door facing westward in the mua, was the king’s eating place. On the upper side were large and small wooden containers that served as bowls and platters, together with a large poi container always filled with poi from the king’s lands.”

“The men’s eating house, the sleeping house, and the women’s eating house were at the end of a 7- to 8-foot stone wall that ran irregularly from there to the shore at the back of the hale nana mahina ‘ai. Outside of the wall was the trail for those who lived oceanward of Kamakahonu. Immediately back of the wall was the pond of Alanaio, where stood some houses.”

“Two eating houses were built for Kaheiheimālie and her daughter, Kekāuluohi, opposite the three houses thatched with ti leaves. They stood back of the kou trees growing there at Kamakahonu, both facing northwest.”

“Kaheiheimālie’s eating house had two doors, but Kekāuluohi’s had but one door. In front of her house was a bathing pool, at the upper bank of which were some small houses and that of the king.”

“A stone house was built between the three houses thatched with ti and those of these chiefesses. Its builder was either a Frenchman or a Portuguese named Aikona. He was skilled in such work…”

“When Aikona began building the end and side walls of the house at Kamakahonu he built a third wall between them and arranged stones in the center of this middle wall to from a door.”

“The walls rose together until the house, from one end to the other, was finished. When Aikona later removed the stones set up in the doorway of the center wall, the doorway looked like the fine arched bridge of Pualoalo at Peleula in Honolulu.”

“As he removed the stones, Aikona explained that had they been piled inexpertly, the whole house might have collapsed. This house was well completed.”

“In the stone house were stored the king’s valuables and those of Aikona’s. These valuables were kegs of rum and gunpowder and guns, of which the guns and powder were placed on the inside near the inner wall. “

“Later, another storehouse was built in Kamakahonu, on the north side of the hale nana mahina ‘ai. It had stone walls and was constructed like a maka halau. The upper of its two stories was for storing tapa, pa‘u, malos, fish nets, lines, and olona fiber; and all other goods went into the lower story.”

“The thatching was of sugar-cane leaves, the customary thatching on the house along that shore. Dried banana trunk sheaths were used for the inside walls and were cleverly joined from top to bottom. Banana trunk sheaths were also used in the hale nana mahina ‘ai.”

“After these houses were built, another heiau house, called Ahuʻena, was restored (ho‘ala hou). This house stood on the east side of the hale nana mahina ‘ai, separated from it by about a chain’s distance.”

“The foundation of Ahuʻena was a little more than a chain from the sand beach to the westward and from the rocky shore to the eastward. Right in front of it was a well-made pavement of stone which extended its entire length and as far out as the place where the waves broke.” (ʻĪʻi, Na Hunahuna no ka Moʻolelo Hawaiʻi’ (Fragments of Hawaiian History))

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Kamakahonu map by Rockwood based on Ii-Rechtman
Kamakahonu map by Rockwood based on Ii-Rechtman
kamehameha_at_kamakahonu-HerbKane
kamehameha_at_kamakahonu-HerbKane
Temple_on_the_Island_of_Hawaii_by_Louis_Choris_ink,ink_wash_and_watercolor_over_pencil_1816
Temple_on_the_Island_of_Hawaii_by_Louis_Choris_ink,ink_wash_and_watercolor_over_pencil_1816
Map of Kailua Bay-Kekahuna-BishopMuseum
Map of Kailua Bay-Kekahuna-BishopMuseum
Kailua_Bay-Landing-Map-Wall-Reg2560 (1913)-Kamakahonu_site_on_left
Kailua_Bay-Landing-Map-Wall-Reg2560 (1913)-Kamakahonu_site_on_left
Kailua-Bay-Kamakahonu-Ka_Hale_Pua_Ilima_Foundation-HenryEPKekahuna-BishopMuseum-SP_201853
Kailua-Bay-Kamakahonu-Ka_Hale_Pua_Ilima_Foundation-HenryEPKekahuna-BishopMuseum-SP_201853
James_Gay_Sawkins,_England,_1806-1878,_Kailua-Kona_with_Hualalai,_Hulihee_Palace_and_Church-Kamakahonu is at left_1852
James_Gay_Sawkins,_England,_1806-1878,_Kailua-Kona_with_Hualalai,_Hulihee_Palace_and_Church-Kamakahonu is at left_1852
Hale ʻIli Maiʻa, the Royal storehouse of King Kamehameha I, Kailua, Kona, Hawaii.
Hale ʻIli Maiʻa, the Royal storehouse of King Kamehameha I, Kailua, Kona, Hawaii.
Kamakahonu-DMY
Kamakahonu-DMY
Kamakahonu_DMY
Kamakahonu_DMY
Kamakahonu_Cove-1954 (Ahuena Heiau Inc)
Kamakahonu_Cove-1954 (Ahuena Heiau Inc)
Kamakahonu,_Kona
Kamakahonu,_Kona
Kamakahonu DMY
Kamakahonu DMY
Kailua Bay aerial 1960s
Kailua Bay aerial 1960s
Kailua Bay aerial 1940s
Kailua Bay aerial 1940s
King_Kamehameha_Hotel-(the_former_hotel)-1960s-1970s
King_Kamehameha_Hotel-(the_former_hotel)-1960s-1970s

by Peter T Young 2 Comments

Hawaiian Common Law

The first Hawaiʻi Supreme Court case to discuss “the rights common people to go to the mountains, and the seas attached to their own particular land exclusively” in the 1850 Kuleana Act was Oni v Meek (1858.)

Oni, a tenant of the ahupua’a of Honouliuli, O’ahu, filed suit against John Meek, who had a lease over the entire ahupuaʻa. Oni brought suit when some of his horses, which had been pastured on Meek’s land, were impounded and sold. Oni claimed that he had a right to pasture his horses (by custom and by language in the Kuleana Act.)

The Hawai’i Supreme Court rejected both arguments. For over a hundred years, the Oni v Meek case appeared to foreclose claims based on custom. (MacKenzie)

In 1892 the legislature of the Hawaiian Kingdom and Queen Liliʻuokalani passed a law that recognized Hawaiian usage as part of the common law of the Kingdom, together with the common law of England.

An act on November 25, 1892, Act to Reorganize the Judiciary Department, ch. LVII, § 5, 1892 Laws of Her Majesty Liliuokalani, Queen of the Hawaiian Islands, provided for exceptions to the English common law that were “established by Hawaiian national usage.”

This law, which is today known as Section 1-1 of the Hawaiʻi Revised Statutes (HRS,) provided the basis for the rights of the makaʻāinana (common people) beyond the rights reserved under the Kuleana Act, so as to include whatever was broadly customary as Hawaiian usage prior to 1892. (McGregor & MacKenzie)

HRS §1-1 Common law of the State; exceptions, states, “The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except …”

“… as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State. (Hawaiʻi Revised Statutes)

Effective January 1, 1893 and continuing today, common law was adopted “except as otherwise provided … or fixed by Hawaiian judicial precedent, or established by Hawaiian usage….” (HRS Case Notes)

In 1978, the Hawaiʻi State Constitution was amended to specifically recognize traditional and customary Hawaiian practices by adopting Article XII, Section 7:

“The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.”

In 1995, the Hawaiʻi Supreme Court, explained in the Public Access Shoreline Hawaii (PASH) case that “Oni merely rejected one particular claim based upon an apparently non-traditional practice that had not achieved customary status in the area where the right was asserted.” (MacKenzie)

The PASH Court stressed that “the precise nature and scope of the rights retained by (HRS) § 1-1 … depend upon the particular circumstances of each case”.

The Court set out a test for the doctrine of custom, requiring that a custom be consistent when measured against other customs; a practice be certain in an objective sense, “(A) particular custom is certain if it is objectively defined and applied; certainty is not subjectively determined”; and a traditional use be exercised in a reasonable manner.

The PASH Court also clarified that “those persons who are ‘descendants of native Hawaiians who inhabited the islands prior to 1778,’ and who assert otherwise valid customary and traditional Hawaiian rights under HRS 1-1, are entitled to protection regardless of their blood quantum.” (MacKenzie)

In the ‘Kapili’ case (dealing with entering undeveloped lands to gather, without unnecessarily disturbing the surrounding environment, natural products necessary for certain traditional native Hawaiian practices) the Hawaiʻi Supreme Court noted:

“The statutory exception to the common law is thus akin to the English doctrine of custom whereby practices and privileges unique to particular districts continued to apply to residents of those districts in contravention of the common law.”

“This, however, is not to say that we find that all the requisite elements of the doctrine of custom were necessarily incorporated in § 1-1. Rather, we believe that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area.” (Supreme Court, Kapili)

Related to this, in the Pele Defense Fund case, it was determined that, “The nature and scope of the rights reserved to hoaʻāina (tenants) by custom and usage are to be defined according to the values, traditions and customs associated with a particular area as transmitted from one generation to the next in the conduct of subsistence, cultural, and religious activities.”

That case also found that residency of a particular ahupuaʻa was not required for gather, noting, “Unlike other areas in Hawaii, Hawaiians historically crossed ahupua`a boundaries in the Puna district. …”

“…The hunting and gathering patterns in the Puna district are unique because they are influenced, to a large extent, by an active volcano, Kilauea. It can be reasonably inferred that volcanic eruptions in the Puna area force hunters and gatherers to change areas to find plants and animals for subsistence purposes.” (Circuit Court, PDF)

The Pele Defense Fund decision extended rights to non-Hawaiians, noting, “Accordingly, non-Hawaiians could have the same right as Hawaiians, irrespective of Article XII, § 7 if they could prove that their rights were based on custom and usage.”

“The Pele Defense Fund decision concluded with “a permanent injunction against excluding the following persons from entering the undeveloped portions of the land and using the developed portion for reasonable access to the undeveloped portions, to perform customarily and traditionally exercised subsistence and cultural practices:”

“(a) Hawaiian subsistence or cultural practitioners who are descendants of the inhabitants of the Hawaiian Islands prior to 1778; (b) Person or persons accompanying Hawaiian subsistence or cultural practitioners described in (a); or (c) Persons related by blood, marriage or adoption to Hawaiian subsistence or cultural practitioners described in (a).”

Within the same Hawaii Revised Statues is another important law (§5-7.5) ‘Aloha Spirit’.

‘Aloha Spirit’ is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, “Aloha”, the following unuhi laula loa may be used:
‘Akahai,’ kindness to be expressed with tenderness;
‘Lokahi,’ unity, to be expressed with harmony;
‘Oluolu,’ agreeable, to be expressed with pleasantness;
‘Haahaa,’ humility, to be expressed with modesty;
‘Ahonui,’ patience, to be expressed with perseverance.

‘Aloha’ is more than a word of greeting or farewell or a salutation. ‘Aloha’ means mutual regard and affection and extends warmth in caring with no obligation in return.

‘Aloha’ is the essence of relationships in which each person is important to every other person for collective existence. ‘Aloha’ means to hear what is not said, to see what cannot be seen and to know the unknowable.

Aloha, it’s the law.

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Common Law
Common Law