https://core.ac.uk/reader/267978445 The Kuleana Act Revisited - Washington Law School
https://core.ac.uk/reader/211323096 (Re) Writing History - covers Anthony Scalia, Williamson Chang et.als.
https://core.ac.uk/reader/232619700 Aloha Aina: U.S. Military and Controversial Use of Hawaiian Lands
THE KULEANA ACT REVISITED: THESURVIVAL OF TRADITIONAL HAWAIIANCOMMONER RIGHTS IN LANDMaiv n Clech Lim*AbstracL The issue of aboriginal land rights raises significant legal and moral questions.The starting point for discussion of Native Hawaiian land rights is the Kuleana Act of1850. This Act enabled Hawaiian commoners, for the first time in Hawaiian history, toacquire fee simple title to land. The Act did not, however, contain provisions simultane-ously terminating their traditional rights in land. What these traditional rights consist of,and to whom they apply, remain relevant issues. The author examines the Act in thecontext of its surrounding history, laws, and judicial interpretations, and concludes thatthe Kuleana Act introduced a system of rights parallel to traditional Hawaiian land rights,not in derogation of them. Consequently, the author argues, traditional land rights remainavailable, uiider the law, to descendants of the commoners of 1850.I. Introduction ........................................... 234II. Historical Context ..................................... 237A. Background ....................................... 237B. The Traditional Political Structure ................. 239C. The Traditional Land Tenure System .............. 241D. The Impact of the West ........................... 2441. The Needs of Westerners ....................... 2452. Conflicting Values ............................. 2463. The Role of the Ali'i ........................... 2484. The Recourse to Law .......................... 251III. The Kuleana Act ...................................... 252A. The Pre-1850 Land Tenure Laws .................. 2531. The Declaration of Rights ..................... 2532. The First Constitution ......................... 2543. Land Commission Principles and Practices ..... 255' Assistant Director, Law of the Sea Institute, University of Hawai'i. B.A. 1965, MarygroveCollege; M.A. 1967, Yale University; M.Ph. 1981, Yale University; J.D. 1984, University ofHawai'i. The viewpoint expressed here does not implicate any of the above institutions.This Article reflects my belief that cultural diversity is a good in itself, and expresses mygratitude to the Hawaiian people for letting me know a little of who they are. Many have helpedand supported me in the writing of this manuscript. Lamson Lam and Truong Bun Lim gavethe gifts of love and forbearance. I also owe much, for their aid, encouragement, and comments,to: Scott Allen, Marjorie An, Edward D. Beechert, R. Kekuni Blaisdell, Donna Burns,Williamson Chang, John P. Craven, Philip Elman, Michael C. Hare, Lilikala Kame'eleihiwa,Marion Kelly, Duncan Kennedy, Teresa Mansson, Mar Matsuda, David Stannard, CarolStimson, Bill Tam, Haunani-Kay Trask, Mililani Trask, Charles F. Wilkinson, and IdaYoshinaga. Andrea Lairson and Deborah Dwyer edited the manuscript and strengthened itimmeasurably. I alone, unfortunately, bear responsibility for deficiencies.
Washington Law Review4. The Great Mahele ............................. 259B. The Provisions of the Kuleana Act ................. 261IV. The Contemplated Distribution of Land ................ 263V. The Interpretation of the Kuleana Act .................. 267A. Legal Constraints Operating on the Kuleana Act ... 267B. Judicial Interpretations of the Kuleana Act ......... 270VI. Conclusion ............................................ 282A ppendix ................................................... 287I. INTRODUCTION1In 1850, the Legislative Council of the sovereign and independentnation of Hawai'i, which was ruled by King Kamehameha III, enacteda statute,2 popularly known as the Kuleana Act,3 which granted thecommon people4 fee simple title to their cultivated lands and houselots, provided certain conditions were met. These were, in the main,that claimants demonstrate to an appointed Board of Commissionersto Quiet Land Titles ("Land Commission") that they in fact occupiedand had improved the claimed lands, be these in governmental,Crown, or chiefly domains.5Until the passage of the Kuleana Act, the common people ofHawai'i had held, to use Western parlance, undivided interests in theland in common with the King and the chiefs.6 The first Constitution1. A limited discussion of some of the issues raised in this article was presented earlier inLam, The Imposition of Anglo-American Land Tenure Law on Hawaiians, 23 J. LEGALPLURALISM & UNOFFICIAL L. 103 (1985). For a concise introduction to land tenure in Hawai'i,see Kelly, Land Tenure In Hawaii, 7 AMERASIA J., Fall/Winter 1980, at 57. For a cross-culturallook at traditional land tenure systems in the Pacific, see LAND TENURE IN OCEANIA (H.Lundsgaarde ed. 1974). For discussions of the modem relevance of land in Hawai'i, see G.COOPER & G. DAws, LAND AND POWER IN HAWAII: THE DEMOCRATIC YEARS (1985); R.HORWITZ & N. MELLER, LAND & POLITICS IN HAWAII (2d ed. 1963).2. 2 REV. LAWS HAW. 2141 (1925). The full text of the law is reproduced in the Appendix.3. The Act was so called because the lots awarded came to be known as "kuleana," aHawaiian term meaning "[r]ight, title, property, portion, responsibility, jurisdiction, authority,interest, claim, ownership." M. PUKUI & S. ELBERT, HAWAIIAN DICTIONARY 165 (1971).4. This Article uses "common people" and "commoners" to refer to all Hawaiians who werenot King, chiefs, or land agents. The Act itself uses the terms "native tenants," "natives," and"people" interchangeably to refer to the same class of Hawaiians.5. 2 REV. LAWS HAW. 2141 (1925).6. L. THURSTON, THE FUNDAMENTAL LAW OF HAWAII 3 (1904). To say that land tenurewas "in common" is to force an Anglo-American legal construct on a uniquely Hawaiian socialreality. This problem of linguistic noncalibration, unfortunately, dogs any discussion of thedevelopment of modem Hawaiian law. That Hawaiian law has been cast in largely Westernmolds over the last 140 years may oblige students to talk in terms of Western legal constructs. Itshould not, however, lure us into forgetting that a uniquely Hawaiian system of land-relatedrights and obligations once prevailed which may be accurately understood only on its own terms,linguistic and cultural.234Vol. 64:233, 1989
The Kuleana Act Revisitedof Hawai'i, granted by Kamehameha III in 1840, described the tradi-tional land system as follows:Kamehameha I, was the founder of the kingdom, and to him belongedall the land from one end of the Islands to the other, though it was nothis own private property. It belonged to the chiefs and people in com-mon, of whom Kamehameha I was the head, and had the managementof the landed property.7This traditional system suffered its first major legal onslaught in18488 when, pursuant to discussions, the King, the chiefs, and theirland agents separated out their respective interests in the land.9 Thesedivisions came to be known as the Great Mahele.10 In it the King, andthe chiefs and land agents, who were collectively known as konohiki,1agreed, in separate bilateral compacts, to accept certain allotted areasof the kingdom as their own while quitclaiming all interests in theothers' assigned portions.12 These agreements were recorded in a vol-ume called the Mahele Book. 13The King,14 and by degrees the konohiki,15 then conveyed or com-muted to the government a portion of the lands they thus acquired.6In this manner the government of Hawai'i became, like the King andthe chiefs, an allodial landholding party. Although each of these threesets of landowners now held land independently of one another, theirholdings remained subject to the rights of native tenants living7. Id.8. The real onslaught on the traditional land tenure system came earlier. A Western marketeconomy was already developing before 1848. Unlike the traditional Hawaiian subsistence andexchange economy, the Western system required that factors of production, including land, bereadily alienable. Land held in common obviously lacked this quality. For this reason,Westerners clamored very early on for laws that would confer individual ownership of land. SeeR. KuYKENDALL, THE HAWAIIAN KINGDOM 1778-1854, at 273 (1980). For a detaileddiscussion of the impact of Westerners on traditional Hawaiian land tenure, see M. Kelly,Changes in Land Tenure in Hawaii 1778-1850 (June 1956) (unpublished thesis available at theUniversity of Hawai'i Library).9. See J. CHriNN, THE GREAT MAHELE: HAwAn'S LAND DIVISION OF 1848, at 15-16(1958).10. Id. at 20.11. The term "konohiki" originally referred to a land agent appointed by a superior chief.The term was later extended to include the chief himself. J. CHINEN, supra note 9, at 24 n.19.12. I. at 16.13. Id. at 20.14. Ia at 25.15. Id at 21-24.16. Because all the lands "belonged" to the King, see supra text accompanying note 7,whatever he yielded to the government was considered a gift. Id. at 26. The chiefs, on the otherhand, who initially "held" from the King, were required to pay a commutation to thegovernment, in cash or surrender of land, equal to one-third the value of the lands claimed. Idat 21.235
The Kuleana Act Revisitedland.26 This startlingly meager figure compels us to ask whether theAct, in extending a fee simple regime to a few commoners, therebyalso extinguished the traditional rights which they and the rest of theclass had enjoyed in the land. The present Article, which examinesthe Act, its historical context, and subsequent Hawai'i State SupremeCourt decisions, concludes that traditional commoner rights in landwere not abrogated by the Act, but remain essentially intact, and areavailable to descendants of commoners today.This conclusion clearly raises profound legal, political, economic,and moral issues for Hawai'i. Nevertheless, the reading of Hawaiianland rights presented here is not unprecedented, but parallels asser-tions of indigenous land rights established by mainland AmericanIndians in recent but already historic litigation.27 If traditionalHawaiian land rights survived the passage of the Kuleana Act, asresearch here shows they have, major adjustments in land title inHawai'i will be required, with obvious and serious consequences. Thatconsequences may be sweeping, however, is no reason to avoid a com-prehensive and straightforward examination of the issues.II. HISTORICAL CONTEXTThe present section reviews the historical circumstances of theKuleana Act to see what may be learned of its intended purpose andscope. Relevant to the review are, first, certain political and economicfeatures of traditional Hawaiian society; and second, the impact of theWest through the first half of the nineteenth century.A. BackgroundFrom 1778, when Captain James Cook first arrived in Hawai'i,28until 1850, when the Kuleana Act was passed, Hawaiian society suf-fered a series of systemic shocks of an ideological, social, and, at times,physical nature. These shocks characterized, everywhere in thePacific, the contact of island subsistence societies with Western26. Levy, Native Hawaiian Land Rights, 63 CAnIF. L. REv. 848, 856 (1975).27. See County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985); United States v.Sioux Nation, 448 U.S. 371 (1980); see also Note, County of Oneida v. Oneida Indian Nation:The Continuing Saga of American Indian Territorial Wars, 4 PACE ENVTL. L. REv. 221 (1986).28. W. SCHURZ, THE MANILA GALLEON 229 (1939). Spanish galleons sailed betweenMexico and Manila beginning in the 16th century. Id. at 193. While one or more of them mayhave reached Hawai'i before 1778, the evidence is inconclusive. IdL at 228-29. Conventioncontinues to date Western contact to Cook's arrival in 1778. See R. KUYKENDALL, supra note 8,at 3, 12-13.237
Washington Law Reviewmercantilistic and capitalistic intruders.29 Rarely, however, even forthe Pacific, was the resulting devastation of native society as thoroughand speedy as in Hawai'i. For example, in 1819, a mere forty yearsafter Cook's visit and before the first missionary ever set foot onHawaiian soil, the Hawaiian government, on its own initiative, for-mally repudiated the old religion-gods, taboos, and all.30 Such a sud-den, explicit, and radical denial of a belief system, and hence of thesocial order which the system underpinned, is rare in the annals ofsocieties. Its occurrence attests to the extraordinary impact that West-ern civilization exerted on native Hawaiian culture.Ideological disinheritance was, if anything, surpassed by the mate-rial losses accruing in later years. Figures tell a blunt story. By1896-97, Westerners, who comprised 21% of the population,3' owned57% of all taxable lands and paid 67% of the real estate tax inHawai'i.32 At the same time, persons of Hawaiian ancestry, who madeup 36% of the population,33 paid only 24% of the same tax.34 Theloss of land paralleled the staggering loss of population. As alreadystated, approximately 300,000 Hawaiians inhabited the islands in1778;3' by 1850 only 80,500 remained.36 This phenomenal decreaseresulted in part from the island population's utter lack of immunity tothe sicknesses brought by the foreigners, such as smallpox, measles,and venereal disease.37 In other part, however, population decline wasrelated to the alienation of the people from their land.3 8 Without land,Hawaiians could not secure adequate material sustenance or maintainstable social relationships, which in turn drastically affected their abil-ity to live and their desire to reproduce.3 9The process of alienation from the land is best understood by firstrecalling the traditional nature of the Hawaiian polity and its land29. For an overview of this Pacific-wide trauma, see D. OLIVER, THE PACIFIC ISLANDS155-316 (rev. ed. 1962). For a Hawai'i-specific account, see D. STANNARD, supra note 24.30. R. KUYKENDALL, supra note 8, at 65-70. In effect, the Hawaiian rulers, who were botharchitects and devotees of the traditional religion at its state level, repudiated only the statereligion in 1819. Folk religion, in one form or another, continues to this day. See alsoDavenport, The "Hawaiian Cultural Revolution" Some Political and Economic Considerations,71 AM. ANTHROPOLOGIST 1 (1969).31. A. LIND, HAWAII'S PEOPLE 34 (4th ed. 1980).32. A. LIND, AN ISLAND COMMUNITY 57 (1938).33. A. LIND, supra note 31, at 34.34. A. LIND, supra note 32, at 57.35. See supra note 24 and accompanying text.36. R. SCHMITT, supra note 25, at 72.37. D. OLIVER, supra note 29, at 260.38. Malo, On the Decrease of Population on the Hawaiian Islands, 2 THE HAWAIIANSPECTATOR 121, 127 (Apr. 1839).39. Id. at 127-28.238Vol. 64:233, 1989
Washington Law Reviewwhich he placed trusted chiefs drawn from the ranks of aides, rela-tives, or allies. These chiefs or ali'i, in turn, placed still lower chiefs orretainers at the head of smaller and smaller subdivisions. At the bot-tom were the maka'ainana, or commoners, who worked the land.4 7Conversely, the surplus product of maka'ainana labor movedupwards, through several levels-four, five, or six deep-to supportagents, chiefs, and the ali'i nui.4 8While the broad outlines of this system recall Western feudalism,significant distinctions stand out. First, the system was by no meansmilitaristic. Maka'ainana did not owe military service to the ali'i.4 9Second, the ali'i class enjoyed no hereditary claim to the land. On thedeath of the ali'i nui, lesser chiefs lost their holdings unless his succes-sor confirmed them, an event which was rare.5" Third, maka'ainanawere not bound to the territory of a particular chief, but could movefreely in search of better conditions."1 Extensive kinship networks,which cut across boundary lines, facilitated this continual reallocationof persons to land.52Because the wealth and power of the ali'i flowed from the labor ofthe maka'ainana, who could withhold their services by moving toanother division, the ali'i generally exercised restraint in theirdemands on the commoners.5 3 Furthermore, even though Hawai'i47. "Maka'ainana" comes close to the English word "commoner." M. PUKUI & S. ELBERT,supra note 3, at 207. "Hoa'aina" is translated as "tenant." Id. at 68. Strictly speaking,maka'ainana denotes a status which is fixed, while hoa'aina denotes a relative position in arelationship based on land. A person could be the hoa'aina of a particular chief and in turn bethe landlord of another hoa'aina. A person could not, however, be chief and maka'ainana at thesame time.48. The stratification intensified in the first half of the 19th century, such that land had six oreight owners at the same time, one above the other. Linnekin, The Hui Lands of Keanae:Hawaiian Land Tenure and the Great Mahele, 92 J. POLYNESIAN SOC'Y 169, 171 (1983).49. J. CHINEN, supra note 9, at 6.50. Id. at 5. Even the son of an ali'i nui did not typically succeed to his father's status andproperty. Usurpations via wars were fairly standard means of succeeding to ali'i nui status. SeeR. KUYKENDALL, supra note 8, at 10. A new ali'i nui would not likely trust his predecessor'sretainers sufficiently to reappoint them: "[W]hen a chief was overthrown in war his followers alsomoved on." S. KAMAKAU, RULING CHIEFS OF HAWAII 376 (1961).51. J. CHINEN, supra note 9, at 6.52. For descriptions of this typically Polynesian tradition which permits a highly flexiblerearrangement of population to fit available resources, see R. FIRTH, PRIMITIVE POLYNESIANECONOMY (2d ed. 1965); E. HANDY & M. PUKUI, supra note 40; J. LINNEKIN, CHILDREN OFTHE LAND: EXCHANGE AND STATUS IN A HAWAIIAN COMMUNITY (1985). For a lighterversion of the same observation, see F. CALKINS, MY SAMOAN CHIEF (1962).53. "[F]or a chief was called great in proportion to the number of his people ...." Malo,supra note 38, at 125.240Vol. 64:233, 1989
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