“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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“Ua Koe Ke Kuleana O Na Kanaka”
The Hawaiian Islands cover a land area of over 4.1-million acres (Niʻihau – 44,500-acres; Kauaʻi – 360,000-acres; Oʻahu – 382,000-acres; Molokai – 166,000-acres; Lānaʻi – 89,600-acres; Maui – 465,000-acres; Kahoʻolawe – 28,000-acres and Hawaiʻi Island – 2.6-million acres.)
In pre-western contact Hawai‘i, all ‘āina (land), kai lawaiʻa (fisheries) and natural resources extending from the mountain tops to the depths of the ocean were held in “trust” by the high chiefs (mō‘ī, aliʻi ʻai moku, or aliʻi ʻai ahupua‘a).
The right to use of the lands, fisheries and the resources was given to the hoaʻāina (native tenants) at the prerogative of the aliʻi and their representatives or land agents (often referred to as konohiki or haku ‘āina). (Maly)
“Land was given to the people by the chiefs. Should members of the family go elsewhere, the one who dwelled on the land was considered the owner. A returning family member was always welcome, but the one who tilled the soil was recognized as holding the ownership”. (Pukui; Maly)
“The right, by which a man may claim fish caught by others in the sea, may, indeed, be questioned by those enlightened in the principles of jurisprudence; but the chiefs of the Sandwich Island, make no questions on the subject. They lay equal claim to the sea and land, as their property.”
“The sea is divided into different portions; and those who own a tract of land on the sea shore, own also the sea that fronts it. The common rule observed by the chiefs is, to give about one half of the fish to the fishermen, and take the other half to themselves.” (Richards, Missionary Herald, June 1826)
On December 10, 1845, Kamehameha III signed into law, a joint resolution establishing and outlining the responsibilities of the Board of Commissioners to Quiet Land Titles, setting in motion the Māhele (division of lands between the king and his subjects.)
The Māhele defined the land interests of King Kamehameha III, 252-high-ranking Chiefs and Konohiki (including several foreigners who had been befriended by members of the Kamehameha line), and the Government.
As a result of the Māhele, all lands in the Islands (and associated fisheries) fell into one of three categories: (1) Crown Lands (for the occupant of the throne); (2) Government Lands; and (3) Konohiki Lands. Each was subject to “ua koe ke kuleana o na kanaka” (“reserving the rights of native tenants”.) (Waihona)
The “Kuleana Act” of the Māhele defined the frame-work by which hoaʻāina (native tenants – also makaʻāinana, commoner) could apply for, and be granted fee-simple interest in “Kuleana” lands.
The Kuleana Act, passed by the King and Privy Council on the December 21, 1849, is the foundation of law pertaining to native tenant rights. It reconfirmed the rights of hoaʻāina to: access, subsistence and collection of resources from mountains to the sea, which were necessary to sustain life within their given ahupua‘a.
The law directed the King to appoint (through the minister of the interior and upon consultation with the privy council) “five commissioners, one of whom shall be the attorney general of (the) kingdom, to be a board for the investigation and final ascertainment or rejection of all claims of private individuals, whether natives or foreigners, to any landed property acquired (through) the passage of this act; the awards of which board, unless appealed from as hereinafter allowed, (are) binding upon the minister of the interior and upon the applicant.”
In addition, “the Board appointed a number of Sub-Commissioners in various parts of the kingdom, chiefly gentlemen connected with the American Mission, who from their intelligence, knowledge of the Hawaiian language, and well-known desire to forward any work which they believed to be for the good of the people, were better calculated than any other class of men on the islands to be useful auxiliaries to the Board at Honolulu.” (Robertson, Commissioners to Quiet Land Titles)
“The titles of all lands claimed of the Hawaiian government … upon being confirmed as aforesaid, in whole or in part by the board of commissioners, shall be deemed to be forever settled, as awarded by said board, unless appeal be taken to the supreme court, as already prescribed.”
The Māhele gave the hoaʻāina an opportunity to acquire a fee-simple property interest (lands awarded to the hoaʻāina became known as “Kuleana Lands”) in land on which they lived and actively cultivated, but the process required them to provide personal testimonies regarding their residency and land use practices.
Unlike the Māhele awards (which required payment of commutation, either in land or in cash equal to one-third of the unimproved value of the land at the time of the Māhele) kuleana lands granted “fee simple titles, free of commutation … to all native tenants, who occupy and improve any portion of any Government land, for the land they so occupy and improve, and whose claims to said lands shall be recognized as genuine by the Land Commission”.
“In granting to the people, their house lots in fee simple, such as are separate and distinct from their cultivated lands, the amount of land in each of said House lots shall not exceed one quarter of an acre.”
“In granting to the people their cultivated grounds, or Kalo lands, they shall only be entitled to what they have really cultivated, and which lie in the form of cultivated lands; and not such as the people may have cultivated in different spots, with the seeming intention of enlarging their lots; nor shall they be entitled to the waste lands.” (Privy Council Minutes, December 21, 1849; Punawaiola)
Often, the kuleana included several apana (pieces.) These typically included the site where the house was located, various loʻi kalo and other areas of cultivation.
The hoaʻāina/makaʻāinana had to follow certain steps before they could own their land. First, they had to have their kuleana surveyed, or measured for size and boundaries. Then they had to present their claims to the Land Commission, showing that they had a right to those kuleana.
Of the 29,221 adult males in Hawaii in 1850 eligible to make land claims, the total number of claims amounted to 13,514, of which 209 belonged to foreigners and their descendants. The original papers, as they were received at the office, were numbered and copied into the Registers of the Commission. (Maly)
The whole number of Awards finalized by the Board up to its dissolution is 9,337, leaving an apparent balance of claims not awarded of about 4,200 (some were duplicates, some had been rejected as bad, some were not pursued by the parties.)
The kuleana awards account for a combined 28,600 acres of land – less than one percent of the Kingdom’s lands. (Lots of information here from Maly.) The image shows a representation of a family’s kuleana.
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