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Land Laws And Relationships

This chapter outlines the history of laws governing land ownership in Hawaii, and considers the special problems that native Hawaiians perceive related to the land ownership history.

A. HISTORY OF LAND OWNERSHIP LAWS

Traditional Land Tenure 1/

When Captain Cook arrived in Hawaii in 1778, the country had a complex land tenure system, similar to a European feudal system, 2/ that supported a dense population. Whole portions of islands were controlled by high chiefs (ali'i). An important landholding unit was an ahupua'a, controlled by a chief. The ahupua'a ranged in size from 100 to 100,000 acres, generally with natural boundaries running from mountain tops down ridges to the sea, "enabling the chief of the ahupua'a and his followers to obtain fish and seaweeds at the seashore, taro, bananas, and sweet potatoes from the lowlands, and forest products from the mountains. However, more often than not, an ahupua'a failed to extend to either the mountain or the seashore, being cut off from one or the other by the odd shapes of other ahupua'a." 3/

The ahupua'a was divided into ili. Subchiefs and land agents (konohiki) controlled smaller units of land. Ili kupona were another type of ili, and were completely independent of the ahupua'a in which they were situated. The chief of the ili kupona paid tribute directly to the king. Commoners (maka'ainana, or people of the land) worked the land for the benefit of the chief. Commoners had their own plots, and had gathering rights and fishing rights 4/ on those ahupua'a lands that were not cultivated. 5/ Landholdings were revocable at the will of the chief. At the death of a high chief, his successor could redistribute his lands among the low chiefs; the lands were not necessarily given to the decedent's heirs. Warfare erupted among chiefs over land rights and resulted in reassignment of control over land. These changes affected neither the land boundaries nor the common farmers. The maka'ainana generally stayed on the same land even though the ali'i controlling the land changed. However, common farmers were not bound to a specific piece of land and could leave the ahupua'a if they were unhappy with their landlords. This distinction from European patterns may have made the chiefs more sympathetic landlords than their European counterparts, because of their need to keep an available workforce. 6/

It is important to emphasize that the concept of fee-simple ownership of the land was unknown to Hawaiians. */ The high chiefs did not own the land—they merely managed the land and other resources: "From a religious viewpoint, the ali'i nui [high chief] was a person of divine power. Yet his authority was not a personal authority. It was, instead, a power channeled through him by the gods. In relation to the land and natural resources, he was analogous to a trustee." 7/ The ancient land system thus stands in stark contrast to Western concepts of private ownership:

*/ This paragraph added from comments of the Office of Hawaiian Affairs; edited to avoid duplication.