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foreign landowners in Hawaii or to work in other non-agricultural pursuits, so that they did not act as a group with economic ties to each other. 16/ Under the ancient land law system, it could be considered that the king owned all the land. 17/ However, even at that time the native Hawaiians did not treat all the lands as owned in common. A native Hawaiian tenant worked for a particular chief, and could be summarily ejected from the land he cultivated by that chief. In turn, the chief could be summarily removed from his land by the king. 18/ These practices underscored that ownership of the land was not by all native Hawaiians as a group.
Furthermore, the Great Mahele (or division of land) of 1848 brought to an "end once and for all the feudal system of land tenure in Hawaii, and finally and conclusively established the principle of private allodial titles." 19/ Since the intended goal of the Land Commission Board and of the Mahele was to be a total partition of undivided interests and also, a division and parcelling out of the Government and Crown lands 20/ (that is, defeudalization), 21/ any idea of communal ownership was laid to rest.
Moreover, the Kuleana Act of 1850 (and other legislation passed subsequent to the Great Mahele) allowed individual native Hawaiians to claim a fee simple interest in lands they had actually cultivated or, in the case of other native Hawaiians, to obtain fee simple title to Government lands by purchase. 22/ In addition, much land, including Government and Crown land established by the Great Mahele, was made available for purchase by foreigners. These lands, then, were not held in common by the native Hawaiians, but were owned in fee simple and gave the people vested property rights. Such ownership is not in common and is contrary to the concept of aboriginal title.
The Kuleana Act was significant in two other respects. Those natives who cultivated land had traditionally been allowed to "grow crops for their own use and to pasture animals on unoccupied lands" of the ahupua'a, one of the principal landowning units into which all land (including Government and Crown lands) was divided. 23/ The Kuleana Act abolished the right to grow crops and the right of pasturage. 24/ In addition, the Kuleana Act had the effect of establishing the principle that Government land could be sold, thereby opening the way for foreigners to purchase Government lands. By 1864, native Hawaiians had purchased over 90,000 acres of Government land and by 1893, foreigners had purchased over 600,000 acres of Government land. 25/ By 1893, 752,431 acres of Government and Crown lands had been leased to foreigners. 26/
One theory contends that the statement in the 1840 Constitution of Hawaii that the lands of Hawaii "belonged to the chiefs and people in common" 27/ establishes that the native Hawaiians had collective or common ownership of the Government and Crown lands and, in effect, proves that the native Hawaiians had aboriginal title to the Government and Crown lands. 28/ Similarly, it has been argued that the change in the land system of Hawaii under the Great Mahele, whereby the king "set apart forever to the chiefs and the people" approximately one and one-half million acres of land and retained for himself, his heirs and successors approximately one million acres 29/ (known respectively as the Government and Crown lands), establishes the collective ownership of these lands by the native Hawaiians and, therefore, effectively proves that they had aboriginal title thereto. 30/ However, even if the quoted language
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