“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)
For generations the small, slowly growing population clustered around shore sites near streams that supplied them with water. Such sites are best for inshore fishing.
In the course of native settlement, as the early Hawaiians spread from fishing sites on the shore to inland areas and fanned out over the plains and hills from original centers of settlement, households with ties of relationship became scattered.
Neighborly interdependence, the sharing of goods and services, naturally resulted in the settling of contiguous lands by a given ʻohana rather than in a scattering over an entire district. In this way there came to be an association of particular ʻohana with various areas.
The heads of the ʻohana groups were called haku or haku ‘āina. He came by his responsibility through seniority and competence. His authority was a matter of common consent rather than formal sanction; he was not appointed, he was not elected. (Handy, Handy & Pukui)
“(I)n the earliest times all the people were aliʻi … it was only after the lapse of several generations that a division was made into commoners and chiefs”. (Malo)
Kamakau noted, in early Hawaiʻi “The parents were masters over their own family group … No man was made chief over another.” Essentially, the extended family was the socio, biological, economic and political unit.
Because each ʻohana (family) was served by a parental haku (master, overseer) and each family was self-sufficient and capable of satisfying its own needs, there was no need for a hierarchal structure.
Kamakau states that there were no chiefs in the earliest period of settlement but that they came “several hundred years afterward … when men became numerous.”
As the population increased and wants and needs increased in variety and complexity (and it became too difficult to satisfy them with finite resources;) the need for chiefly rule became apparent.
As chiefdoms developed, the simple pecking order of titles and status likely evolved into a more complex and stratified structure. The actual number of chiefs was few, but their retainers attached to the courts (advisors, konohiki, kahuna, warriors, etc) were many.
In ancient Hawai‘i, most of the common people were farmers, a few were fishermen. Tenants cultivated smaller crops for family consumption, to supply the needs of chiefs and provide tributes.
Access to resources was tied to residency and earned as a result of taking responsibility to steward the environment and supply the needs of aliʻi. The social structure reinforced land management.
The traditional land use in the Hawaiian Islands evolved from shifting cultivation into a stable form of agriculture. Stabilization required a new form of land use and eventually the ahupua‘a form of land management was instituted.
A typical ahupuaʻa (what we generally refer to as watersheds, today) was a long strip of land, narrow at its mountain summit top and becoming wider as it ran down a valley into the sea to the outer edge of the reef. If there was no reef then the sea boundary would be about one and a half miles from the shore.
Ahupuaʻa served as a means of managing people and taking care of the people who support them, as well as an easy form of collection of tributes by the chiefs.
For hundreds of years since, on the death of all mō‘ī (kings or queens), the new ruler re-divided the land, giving control of it to his or her favorite chiefs.
Each ahupuaʻa in turn was ruled by a lower chief, or aliʻi ʻai. He, in turn, appointed an overseer, or konohiki. (The makaʻāinana (common people) never owned or ruled land.)
Konohiki were appointed to supervise the distribution of land, of planting and harvesting, water rights, the building and maintenance of irrigation ditches and new lo‘i. It was the konohiki who served as tax collectors in the Makahiki festival.
Under the aliʻi system of collecting tribute in the form of produce, these subdivisions of the chiefdom became tax units, each marked at its border with a heap (ahu) of stones, an altar upon which was put a symbol of Lono the god of rain, in the form of the rudely carved head of a hog (pua‘a.)
Within a given ahupua‘a the heads of the respective ʻohana were responsible for seeing that their people met the tax levy prescribed by the konohiki, the ali‘i’s land supervisor.
Under the aliʻi it was competence in meeting the requirements of this levy on produce that determined the rights of the planters to continue to cultivate and dwell on their land.
In addition to his responsibility as an overseer of the lands and their use in the ahupua‘a, the Konohiki was also in charge of along-shore and offshore fishing rights (sometimes referred to as ‘konohiki rights.’)
He enforced the seasonal kapu that protected various kinds of fish during seasons of spawning. He supervised the division and distribution of the catch in communal fishing, when prescribed portions went to the aliʻi and his entourage, to the kahuna, and to the households whose members had participated.
There was a high degree of stability or permanence of tenure despite the general turnover of authority and titles to the land whenever a new aliʻi came into power, owing to the fact that particular ʻohana enjoyed the rights of occupancy and use and faithfully fulfilled their obligations.
In many cases their ancestors had pioneered the area and cultivated it since the earliest era of Hawaiian settlement. Actually it was to the advantage of an aliʻi to maintain the occupancy of diligent cultivators of the land.