Nhsc-v1-257

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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/

B. SPECIFIC PROPERTY OWNERSHIP QUESTIONS

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
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