‘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)
