NHSC Land Laws And Relationships

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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.


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.

The ali'i nui...himself enjoyed no absolute ownership of all the land. The ali'i nui was a trustee of all the people within an island or some other larger district. The konohiki also maintained a similar tentative position because the maka'ainana were free to leave the ahupua'a if they were unhappy with a particular chieftain...or konohiki. In short, the members throughout the political hierarchy shared a mutual dependence in sustaining their subsistence way of life...8/

However, the land itself was viewed as belonging not to one individual but to the gods. All the people, including the ali'i, merely administered the land for the benefit of the gods and society as a whole.

The system, therefore, had no analogy to ownership in fee simple absolute. 9/ The high chief had significant power: "the king was over all the people; he was the supreme executive, so long, however, as he did right!" 10/ The native Hawaiians believed that the power of the high chief was divine power, channeled through him by the gods, and that he was a trustee of the land and other resources on behalf of the gods. 11/ This concept continued down through the political hierarchy.

Transition Period: 1778 to 1846

The arrival of westerners altered socio-economic patterns in Hawaii. By 1795, King Kamahameha I had expanded his rule to all of Hawaii except the island of Kauai, in part by use of European arms. An aristrocratic class developed, which had to be serviced by the Hawaiian economy. Further, the activity of port communities and demands of the sandalwood trade drew the tanners from the land. The new focus away from subsistence coincided with the spread of Western diseases and worsened the lot of the commoners. Agriculture suffered as a result. Traditional notions of responsibility to chiefs were disrupted, and an oppressive tax system was installed. 12/ The result, however, was greater control by the king and greater stability in landholding. 13/

In 1819, Kamehameha II became king, and with the Dowager Queen Kaahumanu as regent, ruled until 1825. He decided not to disrupt the holdings of his predecessor's subchiefs. Foreigners wanted to codify this new stability in landholdinqs. 14/ Therefore, when Kamehameha III became king at age 12, the council of chiefs, with some advice from an English frigate captain, persuaded him to adopt a formal policy allowing chiefs to keep their land upon the king's death. This policy was known as the Law of 1825. During this time as well, westerners were given lands by the king or chiefs, so that they entered the Hawaiian landholding pattern. 15/ When the sandalwood trade collapsed from overharvesting, these westerners turned to largescale plantation crops as a focus for economic activity. 16/

In 1839, Kamehameha III set forth a Declaration of Rights providing that: "Protection is hereby secured to the persons of all the people, together with their lands, their building lots and all their property, and nothing whatever shall be taken from any individual, except by express provision of the laws." 17/ In 1840, a written constitution was adopted. It attempted to adjust land rights to reflect the new relationships described above. It was designed as a final attempt to preserve the traditional land system and to keep native Hawaiians in their homes rather than migrating to the developing port areas of Honolulu and Lahaina. The constitution, and laws enacted pursuant to it, announced tenants' rights for the first time and lowered


labor taxes. Native Hawaiians who had already left their land were given the opportunity to return by applying for any uncultivated lands. The Constitution of 1840 also provided that the king could lose no land without his consent—an effort to deal with the fear of alienation of land to foreigners. However, the constitution provided that property already held by foreigners would not be reclaimed by the crown—an effort to avoid conflict with foreigners. 18/

The Constitution of 1840 did not totally put to rest land disputes— problems and episodes continued. In 1841, the king announced a plan to allow island governors to enter into 50-year leases with foreigners. 19/ As discussed below, a large number of acres were conveyed to foreigners. In 1843, in part because of a lease dispute, the British warship Carysfort entered Honolulu, and its captain took over the government for five months. 20/ Although Britain repudiated the captain's action, the episode was a clear mark of problems to come.

The Great Mahele

Because of the increasing pressure for change in the land tenure system, in 1845 the legislature provided for, and the king established, a Board of Land Commissioners. 21/ The Commission was charged to conduct "the investigation and final ascertainment or rejection of all claims of private individuals, whether natives or foreigners, to any landed property acquired anterior to the passage of this act..." 22/ Existing land law was to be the basis for its conclusions, including "native usages in regard to landed tenures." 23/ The Commission had five members, of whom two were native Hawaiians, one half- Hawaiian, and two westerners. 24/

The Commission first examined building lots in Honolulu and Lahaina, since this land was already outside the traditional feudal scheme. 25/ In determining who was entitled to land in conveying plots, the Commission stated that it found "no native rights of occupancy in this plot." Based on those awards, the Minister of the Interior was authorized to issue fee patents. A number of land disputes within the foreign community were thus resolved. 26/

The next step was the adoption by the Commission in 1846 of "Principles," ratified by the legislature. The Commission's goal was "total defeudalization and partition of undivided interests. " 27/ The Principles stated:

If the King be disposed voluntarily to yield to the tenant a portion of what practice has given himself, he most assuredly has a right to do it; and should the King allow to the landlord one-third, to the tenant one-third and retain one-third himself, he, according to the uniform opinion of the witnesses, would injure no one unless himself;...According to this principle, a tract of land now in the hands of landlord and occupied by tenants, if all parts of it were equally valuable, might be divided into three equal parts... 28/

In fact, no action was taken on this recommendation, and it was not adopted as a way to implement the division. 29/ The king and chiefs did not intend to divide the land in thirds with the tenants. 30/ The statement that the land was divided into three parts—one part to the king, one part to the chiefs, and one part to the common people--is wholly erroneous. 31/ Therefore, how to fulfill the Principles was debated at length. On December 18, 1847, a formulation drafted by westerner Justice William Lee was adopted by the king and chiefs


in Privy Council. 32/ Under this formulation, lands of the king were distinguished between those he held as king and his private lands. He was to retain all his private lands, with a right in his tenants "to a fee simple title to one-third of the lands possessed and cultivated by them" whenever the king or tenants desired. 33/ The remaining land in the kingdom was to be divided into thirds: onethird to the Hawaiian government, onethird to the chiefs and konohiki, one-third to the tenant farmers. 34/ If he paid the government, a chief or konohiki could also retain his proportional share of the one-third which was to go to the government; that is, to get the land patent, the chief had to pay the government either with mopey or with one-third of the land to which he sought title. 35/

The Great Mahele—or division—was conducted from January 27 to March 7, 1848. Interests were written in the Mahele Book. The king quit-claimed his interest in specific ahupua'a and ili under the control of 245 chiefs and konohiki, and the chiefs in turn quit-claimed to the king their interests in the balance of the divided lands, which became the king's private lands, subject to the commoners' claims. 36/

At the end of the process, the king "set apart forever to the chiefs and people of my kingdom" approximately 1.5 million acres (the Government lands) and kept for himself, his heirs, and successors approximately one million acres (the Crown lands). The remaining 1.5 million acres were awarded to the chiefs, "reserving the riqhts of the people." 37/ The division was affirmed by legislation. 38/

To defeudalize the land totally, the Commission also had to divide the interests of the common people. By an 1850 Act, each tenant was allowed to apply for his own kuleana. Such land could come from the Crown lands, from the Government lands, or from the other 1.5 million acres of the kingdom. A kuleana could include only land that was actually cultivated plus a houselot of one-quarter acre. The tenant had to prove his claim by 1854 and pay survey costs. In fact, commoners received fewer than 30,000 acres under this Act. 39/ Only 26 percent of the adult male native population received these lands. 40/

Several further statutes completed the transition to a modern landholding system. 41/ An Act of 1846 authorized government land sales approved by the king and Privy Council; by May 1, 1850, the government had sold over 27,000 acres under these laws. The Kuleana Act discussed above also provided that portions of government land be set aside in lots of sizes ranging from one to fifty acres for purchase by natives who did not qualify for kuleana rights. The minimum price was 50 cents an acre.

By 1852, foreigners held thousands of acres of land in Hawaii. Western property concepts, which native Hawaiians did not understand because of the historic land tenure system, would facilitate westerners in taking over Hawaiian-owned lands during the next decades. 42/ Many lands were sold. Debts to westerners were often paid in land. Those landowners who attempted large-scale farming were unable to manage cash plantations, and lost property through foreclosure. 43/ Government lands also came into western hands through sales. 44/

Kuleana lands were also conveyed to westerners. Many kuleana rights were lost through harrassment by illegal diversion of water and foraging cattle from large ranches. Furthermore, some kuleana rights were forfeited because, without the gathering and foraging rights that had formerly been provided, the kuleana could not accord their owners subsistence. Kuleana that were leased to westerners were often not returned, as natural


landmarks disappeared when they became part of plantations. Kuleana were also lost to larger surrounding land-holders by invocation of the doctrine of adverse possession. 45/ Some kuleana lands were simply sold.

The king's lands were freely sold by kings. Because of particular problems with these lands, including the debts of the monarchs, the Act of January 3, 1865, designated the king's lands as Crown lands and declared them inalienable, to descend to the heirs and successors of the Hawaiian crown forever. 46/

The 1890 census revealed the extent to which these forces had put land in the hands of westerners. Of a population of near 90,000, fewer than 5,000 owned land. The relatively small number of Americans and Europeans owned over one million acres. Although three out of four landowners were native Hawaiian, three out of four acres belonging to private owners were held by westerners. 47/


A number of specific questions about property ownership and use that may affect native Hawaiian interests arose at the hearings of the Native Hawaiians Study Commission in January, 1982. To assure a comprehensive study, this section will identify and discuss those issues.

Status of Water and Fishpond Rights under Hawaiian Law

For the most part, waters in Hawaii are treated no differently than waters elsewhere in the United States—that is, navigable waters cannot be privately owned. In McBryde Sugar Co., Ltd. v. Robinson, 54 Haw. 174, 187 (1973), the Supreme Court of Hawaii held that "the ownership of water in natural watercourses, streams, and rivers remained in the people of Hawaii for their common good." In so ruling, the court rejected a long line of cases suggesting that all waters were owned by the holder of the ahupua'a. The Supreme Court's conclusion followed naturally from the fact that at least as early as 1842, interference with navigation was precluded by statute (Laws of 1842, Ch. XXVII, Statute Regulations Respecting Ships, Vessels, and Harbors (Fundamental Law, pp. 80-89)), and hence, by implication, a superior right of the sovereign over commerce and navigation was recognized.

Hawaiian law did, however, accord special protection to the right to raise and capture fish. Two categories of waters, sea fisheries and fishponds, have historically been treated as part of the land. The situation with respect to sea fisheries has changed from feudal times, but fishponds continue to be treated as fast land. The early regime has been described as follows:

Kuapa Pond, with other Hawaiian fishponds, have always been considered to be private property by landowners and by the Hawaiian government. Most fishponds were built behind barrier beaches, such as Kuapa Pond, or immediately seaward of the land controlled by the ali'i, or chiefs. By imposing tabu on the taking of fish from a pond, the chief alone determined the allotment, if any, of fish, just as he distributed the other crops among his sub-chiefs, land agents, and vassals. The fishpond was thus an integral part of the Hawaiian feudal system. Chiefs
gave land, including its fishponds, to sub-chiefs, or took it away at will. Any fishponds in conquered chiefdoms became the personal property of the conquering high chief and were treated in the same manner the high chief treated all newly subjugated lands and appurtenances. The commoner had no absolute right to fish in the ponds, nor in the sector of ocean adjacent to the chief's land—all of such rights were vested in the chiefs and ultimately in the king, alone.
In 1848, King Kamehameha III pronounced the Great Mahele, or national land distribution. Any fishponds therein were allotted as part or inholding of the ahupua'a (a land/water unit). Titles to fishponds were recognized to the same extent and in the same manner as rights were recognized in fast land. (United States v. Kaiser Aetna, 408 F. Supp. 42 (D. Haw. 1976), rev'd 584 F. 2d 378 (9th Cir. 1978), rev'd, 444 U.S. 164 (1979).)

The correctness of description is confirmed by the fact that the Board of Commissioners to Quiet Land Titles routinely included fishponds within its land awards or patents under the Great Mahele, notwithstanding the fact that the Board was concerned solely with landed property. (See Haw. Att'y. Gen. Op. No. 1689, at 460 (1939).) So far as can be determined, fishponds retain their status as private property today.

The situation with respect to sea fisheries changed, however, upon passage of the Organic Act in 1900. In that Act, Congress repealed all prior rights in sea water fisheries by providing that "all fisheries in the sea waters of the Territory...not included in any fish pond or artificial enclosures shall be free to all citizens ... subject...to vested rights" (48 U.S.C. § 506). Procedures were established to compensate those people who had vested rights in sea fisheries; if those procedures were not followed within three years, however, even rights to sea fisheries were lost.

Thus, fishponds remain privately owned today, while fisheries remain in private ownership only to the extent that the owners followed the proper procedures to obtain recognition of their rights. In all other respects, waters in Hawaii are treated the same as in the rest of the United States.

Concern was also expressed at the hearings about the rights to use of water. 48/ People in Hawaii have the right to use water under a series of rules unique to Hawaii and closely related to ancient Hawaiian land law. A landowner has present right to use the amount of water used at the time of the award of the land under the ancient landholding system. These are called "appurtenant" rights. In addition, persons receiving land rights from the king (either ili or ahupua'a), called konohiki rights, have the right to water for those lands equal to those of the king.

Under Hawaiian law, further rights to surface water, called "prescriptive rights," can be established, and once they are established, they also are appurtenant to the land on which the water is used. To establish a prescriptive right, certain tests, including actual, open, notorious, continuous, and hostile use for ten years under claim of right, must be met. Finally, by State statutes passed in the mid-19th century, people on lands to which the landlords have taken fee simple title have the right to drinking water and running water. On such lands, the springs, running water, and roads are free to all, except as to wells and water courses provided by individuals for their own use. These can bee considered native


tenant rights. 49/ Disputes over water rights can be resolved in a proceeding in State courts, according to procedures set out in Hawaiian statutes. 50/

Geothermal and Mineral Rights

The only Hawaiian State statutes relating to minerals are a strip mining law and a law providing for mineral leases on State-owned land. At least some of the patents that were issued by the kingdom of Hawaii retained the mineral rights in the government and these mineral rights are today owned by the State of Hawaii.

No State statute mentions geothermal development or geothermal rights. Native Hawaiians do appear to be concerned about geothermal development sociologically, however. The Puna Hui Ohana, an organization of the Puna Hawaiian community, has uindertaken an extensive assessment of the potential social and cultural impact of geothermal development on the "aboriginal" Hawaiians of Lower Puna on the island of Hawaii. 51/ The report states:

Early Hawaiians used the steam emanating from fissures along the rift zone for cooking and geothermally heated water ponds for bathing. Though exploratory drilling had begun in the 1960's in Puna, the first successful well wasn't discovered until 1976. Designated HGP-A (Hawaii Geothermal Project-Abbott), the well was one of the hottest in the world (675°), high pressured (555 psi), and relatively chemically benign. The successful well represented a new era of alternative energy for the State of Hawaii. For the community of Puna, the geothermal success introduced a developmental element for which it had not been prepared. 52/

The report evaluates a survey of attitudes among Lower Puna's native Hawaiian leaders. These leaders felt that the development of geothermal resources in the area would increase the in-migration to the area and result in major cultural changes. It was felt that socio-economic impacts of a growing Caucasian population would increase during geothermal development. Respondents felt that Caucasians would control the economic benefits of geothermal development, and that, unless native Hawaiians "help themselves or develop fruitful relationships with the developer, Hawaiians' benefits will be very limited at best." 53/

Other concerns included changes in interpersonal relationships, changes in the apparent transfer of political and social power from the local Japanese political establishment to the Caucasians, and a possible effect on native Hawaiians' relationship to nature, to people, and to the supernatural. Finally, native Hawaiian leaders and elders of Lower Puna believed that population and economic growth in connection with geothermal development continues to be a serious threat to the preservation of the native Hawaiian culture as it exists in Lower Puna. They "also believe that the culture can be preserved if families will learn the concepts well and pass it on to their descendants." 54/

Despite distrust of geothermal, development, however, the community seems to have approved it with strong reservations. Of special concern is the manner in which surplus energy is used. The study concludes that "continued dialogue between newcomers and long time residents may promote a better understanding of


economic growth consistent with concerns over environmental and social/cultural preservation." 55/ These findings suggest that to accommodate the concerns of native Hawaiians, geothermal development should be undertaken only after education and consultation with the native Hawaiians themselves.

Kuleana Land Rights

In 1850, two years after the enactment of the Great Mahele, an act was passed allowing Hawaiian native commoners to acquire fee title to the land that they had "really cultivated" under the feudal system, plus a household lot of no more than onequarter acre. 56/ These parcels, called kuleana, could come from the lands retained by the king as Crown lands, or from Government lands, or from the lands granted to the chiefs under the Great Mahele. The commoner could receive fee title to his kuleana only if he proved his claim to the Hawaii Land Commission and paid the costs of a survey. As a result of the Kuleana Act, 8,000 commoners acquired title to land, but the holdings of these commoners totalled fewer than 30,000 acres, or less than one percent of the land.

Several reasons have been given for the failure of the commoners to acquire more land under the Kuleana Act. 57/ One is that most commoners could not afford to pay for the survey work; another is that they feared reprisals from the ali'i if they applied. A third suggested reason is that commoners could obtain title only to land they "actually cultivated." Under the previous system the commoners were entitled to use not only the land they actually cultivated but also were entitled to use common lands for growing crops and for pasturing—a right not preserved under the Kuleana Act. The "actually cultivated" lands were insufficient support the commoner and thus, the Kuleana Act meant little to him. On comment received by the Commission states that native Hawaiians also did not apply because some did not think application necessary or were unaware of the Act. Thus, the effect of the Kuleana Act, in conjunction with the Great Mahele, was the same as the enactment of the enclosure laws in England—fee title to the common land passed to the chiefs, and the commoners did not acquire sufficient lands to support themselves.

An act of the legislature barred establishment of any kuleana claims not proved by 1854. Therefore, establishment of kuleana rights is not an issue today. However, observers have suggested that full use of many kuleana is presently disrupted by three major legal obstacles: fractionated ownership, inadequate access, and adverse possession. 58/

Fractionated ownership of many kuleana plots arises from the effects of intestate succession (passing of the property without a will). Parcels may, therefore, have a number of joint owners, with no clear responsibility for taxes or improvements. Possible remedies include one joint owner buying the interests of the others, partitioning of the kuleana, or putting title in a mutually-owned corporation, trust, or partnership with responsibility to ensure payment of taxes and land improvements.

Inadequate access is a problem for some kuleana because they are surrounded by large plantations and developments. Hawaiian law provides for easements by necessity when they are "reasonably necessary"—other access is difficult or expensive. The 1850 statute itself also provides for access. Therefore, legal tools exist for establishing better access to kuleana.


Finally, many kuleana plots liave been claimed by persons other than the original grantee and his heirs by adverse possession. Adverse possession is a legal principle that permits a person who has occupied the land for a statutory period in an open, hostile, notorious, and exclusive manner to claim title to that land. In Hawaii, the statutory period from 1870 until 1898 was 20 years; in 1898 it was reduced to 10 years. In 1973, it was changed back to 20 years (7A Hawaii Rev. Stats. §657-31). A 1978 law limits adverse possession for rights that mature in 1978 or thereafter to claims for real property under five acres, and to claimants who have not asserted a similar defense within the last 20 years (7A Haw. Rev. Stats. §657-31.5). Large landholders primarily have used adverse possession to absorb the enclosed kuleana of native Hawaiians. Native Hawaiians have been less able to use the doctrine to secure lands for themselves. One reason is that if a native Hawaiian remained on cultivated lands after 1850 but did not perfect kuleana rights, his tenancy was considered permissive rather than adverse, so he could not claim the land by adverse possession. To avoid problems in the future, kuleana owners could register their lands to prevent them from being taken by adverse possession, 59/ or could seek some reform in the adverse possession laws in the State. 60/ Adverse possession cannot be claimed for lands owned by the State or by the United States. Adverse Possession Adverse possession has been considered a problem for native Hawaiians in continuing kuleana land rights. (See discussion in the preceding section.) The benefits of the doctrine for native Hawaiians are shown in a recent decision by a Circuit Court in Hawaii. That case uses the principle to benefit smaller landholders against a large company and to help in dividing undivided common ownership interests. 61/ Every state has developed a law on adverse possession. It has been suggested that in Hawaii the concept developed because larger land owners wanted a means to increase their holdings by engulfing smaller plots owned by native Hawaiians. 62/ Genealogical Searches During the hearings, some concern was expressed about the difficulty and expense of undertaking genealogical research in order to establish qualifications for land that must be owned by those of native Hawaiian ancestry. Three circumstances related to land ownership could give rise to the need for such research: establishing a legal interest in land that may be recognized by courts in Hawaii today; 63/ qualification under the Hawaiian Home Lands program, which provides land to those of 50 percent or more native Hawaiian blood; and qualification under legislation, if any, which could in the future be passed to compensate native Hawaiians for their land claims. Such research may be expensive; in addition, without a central site for relevant materials, the research can be difficult indeed. The State or the Office of Hawaiian Affairs may be undertaking to resolve some of these problems. 64/ 261



1/ An excellent description of ancient land tenure is contained in Jon Chinen, The Great Mahele (Honolulu: University Press of Hawaii, 1958). Ono commenter, Haunani-Kay Trask, thought that the presentation in this section was so biased and inaccurate that she re-wrote it. The Commission does not adopt her alternate language, which appears in full in the Appendix of this report.

2/ Some commenters suggested that a comparison to European feudal systems leads to oversimplification. The comparison is used throughout the literature on Hawaiian tenure, however. (See also above, p. 148.)

3/ Chinen, The Great Mahele, p. 3.

4/ Change suggested by comments received from the Office of Hawaiian Affairs (OHA).

5/ This paragraph is based on Jon Chinen, The Great Mahele, and on Neil M. Levy, "Native Hawaiian Land Rights," 63 Cal. Law Review 848 (1975), pp. 848-9, and Melody K. MacKenzie, Sovereignty and Land: Honoring the Hawaiian Native Claim (OHA), pp. 1-2. See also, for general background, Ralph Kuykendall, The Hawaiian Kingdom, Vol. I, 1778-1854, "Chapter IV: The Land Revolution." One commenter submitted another helpful article: Thomas Marshall Spaulding, "The Crown Lands of Hawaii" (Univ. of Hawaii, Oct. 10, 1923).

6/ Ibid.

7/ MacKenzie, Sovereignty and Land: Honoring the Hawaiian Native Claim, p. 3.

9/ Hawaii State Dept. of Budget8 and Finance, Land and Water Resource Management in Hawaii (Honolulu: Hawaii Institute for Management and Analysis in Government, 1978), p. 148.

9/ Levy, p. 879; MacKenzie, p. 3.

10/ David Malo, Hawaiian Antiquities (Moolelo Hawaii) (Honolulu: Bishop Museum Press, 1951), p. 53; quoted in MacKenzie, p. 3."

11/ MacKenzie, p. 3.

12/ Levy, p. 850.

13/ MacKenzie, pp. 4-5.

14/ Levy, p. 850; MacKenzie, p. 5.

15/ Ibid.

16/ Ibid.

17/ As quoted in Kuykendall, The Hawaiian Kingdom, 1778-1854, p. 271.

18/ See generally, Levy, pp. 851-2; MacKenzie, pp. 5-7.

19/ MacKenzie, p. 7.

20/ Levy, pp. 852-853, MacKenzie, p. 7.


21/ Levy, p. 853.

22/ Ibid., quoting Hawaiian Statute of 1845.

23/ Ibid.

24/ Levy, p. 853; MacKenzie, p. 8.

25/ Ibid.

26/ Ibid.

27/ Levy, p. 854.

28/ Levy, p. 854, quoting Hawaiian Statute of 1896.

29/ Chinen, p. 15; Kuykendall, p. 282.

30/ Kuykendall, p. 282.

31/ Ibid.

32/ Levy, p. 854; MacKenzie, p. 8.

33/ Ibid., quoting Rules adopted by Privy Council.

34/ Levy, p. 854; MacKenzie, p. 8.

35/ Ibid.

36/ Levy, p. 855; MacKenzie, p. 9.

37/ Ibid.

38/ The division was approved by legislation. Act of June 7, 1848, referred to in Levy, p. 855. Comments received from OHA suggest that: "The Mahele cf 1848 and conversion to a fee simple system did not entirely do away with this trust concept" that the king held the lands in trust for the gods and society as a whole.

39/ Levy, pp. 855-6; MacKenzie, pp. 10-11.

40/ MacKenzie, p. 10. Comments received from John Agard presented an informative discussion of kuleana rights and claims.

41/ Levy, p. 857; MacKenzie, pp. 11-12.

42/ Levy, p. 857.

43/ MacKenzie, p. 13.

44/ Ibid.

45/ Levy, p. 861.

46/ MacKenzie, pp. 13-14.

47/ Ibid., pp. 14-15.

48/ One commenter stressed the importance of water rights in modern Hawaii, in part because of the problems that development can cause in terms of short water supplies.

49/ II Hutchins, Water Rights Laws...The Nineteen Western States, pp. 177-178 (1974). Suggested by comments received from Congressman Daniel Akaka.

50/ The material for this paragraph is drawn from Clark, Water and Water Rights, Vol. 5, 1 433, which has an extensive discussion of Hawaiian water laws.

51/ Puna Hui Ohana, Assessment of Geothermal Development Impact on Aboriginal Hawaiians, prepared for U.S. Department of Energy, Contract No. DE-PC03-79ET27133 (Feb. 1, 1982).

52/ Ibid., p. 10.

53/ Ibid., p. 119.


54/ Ibid., pp. 119-121.

55/ Ibid., p. 122.

56/ Act of August 6, 1850, § 1 (1850) Hawaii Laws 202 in 2 Revised Laws 1925 at 2141. See discussion above.

57/ See Levy, p. 861; MacKenzie, p. 11.

58/ An extended discussion is set forth in Levy, pp. 867-870. Congressman Daniel Akaka comments that the analysis presented here of the problems inherent in settling title to kuleana lands suggests that the problems are easily solved. As a substantive review of this section of the report and the authorities on which it relies shows, they are indeed difficult to solve. One commenter suggests that the right to exercise kuleana rights did not terminate in 1855. The comment is simply in error. See Chinen, The Great Mahele, pp. 30-31, which states that the Land Commission that granted deeds to such lands dissolved on March 31, 1855.

59/ See Levy, p. 870, citing a suggestion of Chief Justice William Richardson of the Hawaii Supreme Court.

60/ Such reform might include permitting adverse possession claims only if the claimant has entered the land "in good faith." Such a bill was passed by the Hawaii legislature in 1973, but vetoed by the governor. See Levy, p. 870.

61/ The extensive opinion is in Ranch, Inc. v. Joseph Ahsing, et. al.. Civil No. 1878, Findings of Fact and Conclusions of Law (Circuit Court of the Second Circuit, State of Hawaii, May 12, 1982).

62/ Previous two sentences suggested in comments received from Congressman Daniel Akaka.

63/ Addition suggested in comments received from Congressman Daniel Akaka.

64/ Many records in the native Hawaiian language are available but are not easily accessible as a resource.