Wednesday, December 10, 2014

“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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