Nhsc-v1-260

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nhsc-v1-260

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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.

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