The Kuleana Act of 1850

The Kuleana Act remains the foundation of law pertaining to native tenant rights and prescribed the following.

August 6, 1850

An Act confirming certain resolutions of the King and Privy Council passed on the 21st day of December 1849, granting to the common people allodial titles for their own lands and house lots, and certain other privileges.

Be it enacted by the Nobles and Representatives of the People of the Hawaiian Islands in Legislative Council assembled;

That the following sections which were passed by the King in Privy Council on the 21st day of December A.D. 1849 when the Legislature was not in session, be, and are hereby confirmed, and that certain other provisions be inserted, as follows:

Section 1 Resolved. That fee simple titles, free of commutation, be and are hereby granted to all native tenants, who occupy and improve any portion of any Government land, for the land they so occupy and improve, and whose claims to said lands shall be recognized as genuine by the Land Commission; Provided, however, that the Resolution shall not extend to Konohikis or other persons having the care of Government lands or to the house lots and other lands, in which the Government have an interest, in the Districts of Honolulu, Lahaina and Hilo.

Section 2 By and with the consent of the King and Chiefs in Privy Council assembled, it is hereby resolved, that fee simple titles free of commutation, be and are hereby granted to all native tenants who occupy and improve any lands other than those mentioned in the preceding Resolution, held by the King or any chief or Konohiki for the land they so occupy and improve. Provided however, this Resolution shall not extend to house lots or other lands situated in the Districts of Honolulu, Lahaina and Hilo.

Section 3 Resolved that the Board of Commissioners to quiet Land titles be, and is hereby empowered to award fee simple titles in accordance with the foregoing Resolutions; to define and separate the portions belonging to different individuals; and to provide for an equitable exchange of such different portions where it can be done, so that each man’s land may be by itself.

Section 4 Resolved that a certain portion of the Government lands in each Island shall be set apart, and placed in the hands of special agents to be disposed of in lots of from one to fifty acres in fee simple to such natives as may not be otherwise furnished with sufficient lands at a minimum price of fifty cents per acre.

Section 5 In granting to the People, their House lots in fee simple, such as are separate and distinct from their cultivated lands, the amount of land in each of said House lots shall not exceed one quarter of an acre.

Section 6 In granting to the people their cultivated grounds, or Kalo lands, they shall only be entitled to what they have really cultivated, and which lie in the form of cultivated lands; and not such as the people may have cultivated in different spots, with the seeming intention of enlarging their lots; nor shall they be entitled to the waste lands. [Generally wetlands, ponds, and fallow fields. See citations later in this section.]

Section 7 When the Landlords have taken allodial titles to their lands the people on each of their lands shall not be deprived of the right to take firewood, aho cord, thatch, or ti leaf from the land on which they live, for their own private use, should they need them, but they shall not have a right to take such articles to sell for profit. They shall also inform the Landlord or his agent, and proceed with his consent. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, and running water, and roads shall be free to all should they need them, on all lands granted in fee simple. Provided, that this shall not be applicable to wells and water courses which individuals have made for their own use.

Done and passed at the Council House, Honolulu this 6th day of August 1850.¹

¹Copied from original handwritten “Enabling Act,” Hawaii State Archives, DLNR, 2–4. See also Kanawai Hoopai Karaima no ko Hawaii Pae Aina (Penal Code) 1850.

Category:

Mahele

Related Documents

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Native Tenant Land Claims

The native tenant land claims from the Native Register for lands in Honouliuli can be found here. The claim number or helu is given, followed by the name of the claimant, and the name of the land area. The Native Register contains the claims submitted by the person who occupies the land. This includes a description of the location of the land, as well as what has been developed on the land—houses, taro patches, gardens, etc. The native testimony and foreign testimony contain statements from residents in the area which verify the statements of the claimant made in the Native Register. A few of the claims were not awarded. Click the Category link for Land Commission Award below to see the claims for Honouliuli.

The accompanying images are of two kinds. The first kind is the notes of survey which formed the records of the Mahele Award Books. They include metes and bounds and plot plans of the parcels surveyed for native tenants. The specific land names and parcels, plot plan maps, and, if provided, additional notes (e.g. names of people and places, or descriptions of features) which supplement the register and testimony volumes are cited.

The second kind of images included are the Royal Patents issued on Mahele Aina Awards. Upon agreement of the land areas to be awarded, surveys were conducted and recorded. The king issued Royal Patents in confirmation of the land areas to awardees. The original documents are presented. The figure captions include the royal patent number (Palapala Sila Nui Helu), the LCA number (Kuleana Helu), the awardee, land area and description, date, signatory parties, and source. The documents are not transcribed, but may be read from the original patents. In some instances, additional place names which were not identified in the earlier records were also cited in the claims; those place names are cited in the land description from each patent. Click the Category link for Royal Patent to see those issued for Honouliuli.

The notes of survey and Royal Patent associated with a Land Commission Award can be navigated to through links under Related Images on each Land Commission Award page.

Residency: Land Ownership and Access

By the time of the Mahele Aina (Land Division) of 1848, which granted chiefs, native tenants, and a number of foreigners fee-simple title to land, major changes in the Hawaiian way of life—residency and subsistence practices—were occurring across the islands. Among the notable changes in Honouliuli was that the southern, ocean-facing shore of Honouliuli was all but abandoned by the native tenants. The one exception was along the inland shores of Puuloa, where foreigners gained control of the land and engaged native Hawaiians as employees of newly developing businesses. The other native tenants of the Honouliuli coastal lands who survived the numerous bouts of infectious diseases chose to relocate to areas where fresh water and larger communities had been established inland. As a result, there were no native tenant claims recorded for the lands that encompass the Hoakalei Preservation areas.

The historic papers published in Hawai‘i in the 1830s to mid-1900s contain many entries identifying residents of Honouliuli Ahupuaa and neighboring lands. From a review of both Hawaiian- and English-language publications are found names of individuals who resided on the land and descriptions of their land-use practices.

The Board of Commissioners to Quiet Land Titles, 1845

By the 1840s, the makaainana began making pleas to the king, asking that he not allow foreigners the right to possess land and hold positions in government. A series of petitions from across the islands on this matter went unheeded. With lands from his personal inventory, the king set up a mechanism to lease out and eventually sell large tracts of land for the development of businesses, which, it was hoped, would also benefit the kingdom. On December 10, 1845, Kamehameha III signed into law a joint resolution establishing and outlining the responsibilities of the Board of Commissioners to Quiet Land Titles, setting in motion the Mahele Aina or division of lands and natural resources between the king and his subjects. Among the actions called for, and laws to be implemented were

ARTICLE IV. Of The Board Of Commissioners To Quiet Land Titles

SECTION I His Majesty shall appoint through the minister of the interior, and upon consultation with the privy council, five commissioners, one of whom shall be the attorney general of this kingdom, to be a board for 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; the awards of which board, unless appealed from as hereinafter allowed, shall be binding upon the minister of the interior and upon the applicant...

SECTION VII The decisions of said board shall be in accordance with the principles established by the civil code of this kingdom in regard to prescription, occupancy, fixtures, native usages in regard to landed tenures, water privileges and rights of piscary, the rights of women, the rights of absentees, tenancy and subtenancy, —primogeniture and rights of adoption; which decisions being of a majority in number of said board, shall be only subject to appeal to the supreme court, and when such appeal shall not have been taken, they shall be final…

SECTION XIII The titles of all lands claimed of the Hawaiian government anterior to the passage of this act, upon being confirmed as aforesaid, in whole or in part by the board of commissioners, shall be deemed to be forever settled, as awarded by said board, unless appeal be taken to the supreme court, as already prescribed. And all claims rejected by said board, unless appeal be taken as aforesaid, shall be deemed to be forever barred and foreclosed, from the expiration of the time allowed for such appeal.¹

The Mahele defined the land interests of Kauikeaouli (King Kamehameha III), some 252 high-ranking alii and konohiki—including several foreigners who had been befriended by members of the Kamehameha line—and the government. As a result of the Mahele, all lands in the Kingdom of Hawaii—and associated fisheries as described in the laws above—came to be placed in one of three categories: i) Crown lands for the occupant of the throne; ii) Government lands; and iii) Konohiki lands. The “Enabling” or “Kuleana Act” of the Mahele, dated December 21, 1849, further defined the framework by which hoa‘aina could apply for and be granted fee-simple interest in kuleana lands.² The Kuleana Act reconfirmed the rights of hoaaina to access the land and collect resources from mountains to the shore. Though not specifically stated in this act, the rights of piscary (to fisheries and fishing) had already been granted and were protected by preceding laws.

¹In The Polynesian, January 3, 1846, p. 140.

²cf. Kamakau in Ke Au Okoa, July 8 & 15, 1869; 1961, p. 403.

The Māhele ‘Āina Claims and Awards

The Hoakalei Cultural Foundation (HCF) seeks to provide the public with access to the rich history of Honouliuli Ahupuaa—bringing traditional and historical documentation that has time depth, and that is factual, to the attention of all who care for this land. The research is being conducted in a wide range of archival collections, and incorporates primary—first account—documentation from both Hawaiian- and English-language resources.

As a part of that research, Kepa Maly and Onaona Pomroy Maly completed a review of all the original land title records of the Hawaiian Kingdom recorded during the Mahele Aina (Land Division) between the years 1847 and 1855. For the first time, all of the Mahele records have been compiled in one collection, and the original Hawaiian-language documents of the Native Register and Testimony collections were translated by Kepa Maly for this program. This work was conducted over a five-week period between July and August 2012. The results provide readers with significant documentation coming from those who lived on and knew the land in a traditional manner. The Mahele documents describe land use, residency, and the practices of the families of Honouliuli and its smaller land subdivisions. With this information, we are able better to understand the history and cultural landscape of Honouliuli. While much has changed in the last 170 years, the spirit of place, the named places, and lives of those who came before us are still present on the land. Their history adds value to our own lives and community.

All told, 436 Mahele documents were found for Honouliuli; no additional Mahele claims for Honouliuli are known to exist. This total can be broken down, as follows:

105 Native Register (NR) Claim records registered by 99 native tenants;
80 Native Testimony (NT) Claim records;
99 Foreign Testimony (FT) records;
77 Mahele Award Book records; and
75 Palapala Sila Nui (Royal Patent) records.

Of the 106 native tenant claims and one chiefly claim identified from Honouliuli, 74 were awarded to the claimants or their heirs and 33 were denied.

In compiling this collection of historical land and family records from Honouliuli, we have attempted to ensure the accuracy of all citations. The original records though, are challenging. Being all handwritten, the writing is at times illegible. At other times spelling of personal and land area names vary from one record to another. We have done our best to compare the various records and maintain the highest accuracy possible. The records are organized by Helu—the original numerical sequence assigned at the time of recording the information. Also, certain important classes of information such as place names, personal names, subsistence practices, types of features, and cultural and natural resources are called out in tables and summary form for easy access to the historical information.

Traditional Hawaiian Land Stewardship

In pre-western contact Hawaii, all aina, kai lawaia, and natural resources extending from the mountaintops to the depths of the ocean were held in “trust” by the high chiefs—moi, alii ai moku, or alii ai ahupuaa. The right to use plots of land, fisheries, and natural resources was given to the hoaaina at the prerogative of the alii and their representatives or land agents, often referred to as konohiki or haku aina. Following a strict code of conduct, which was based on ceremonial and ritual observances, the people of the land were generally able to collect all of the natural resources— terrestrial and aquatic—for their own sustenance and to pay tribute to the class of chiefs and priests who oversaw them and ensured the prosperity of the natural environment through their divine mana.¹

As western concepts of property rights began to infiltrate the Hawaiian system shortly after the arrival of foreigners in the islands, Kamehameha I, who had secured rule over all of the islands in the early 1800s, granted perpetual interest in select lands and fisheries to some foreign residents, but he and the chiefs under him generally remained in control of all resources. After Kamehameha I died in 1819 and the Protestant missionaries arrived in 1820, the concepts of property rights, including rights to fisheries, evolved and were codified under Kamehameha II and his younger brother, Kauikeaouli, who ruled as Kamehameha III.

Missionary William Richards wrote this early observation on the nature of Hawaiian resource management—rights to resources from both land and sea—in 1825:

The right, by which a man may claim fish caught by others in the sea, may, indeed, be questioned by those enlightened in the principles of jurisprudence; but the chiefs of the Sandwich Island, make no questions on the subject. They lay equal claim to the sea and land, as their property. The sea is divided into different portions; and those who own a tract of land on the sea shore, own also the sea that fronts it. The common rule observed by the chiefs is, to give about one half of the fish to the fishermen, and take the other half to themselves.²

The inexorable move to Western style fee-simple property rights in the Hawaiian Kingdom resulted in the Mahele Aina of 1848, which divided ownership among the king, his chiefs, the government, and commoners. The Mahele Aina records and associated Helu or LCA Numbers that identified the original holders of title to lands throughout the Hawaiian Islands remain in use today. The story of the Mahele Aina reveals much about residency, land use, and land tenure, but also leaves much unanswered.

It is important to remember that by the time of the Mahele Aina, the population of the Hawaiian Islands, including the ahupuaa of Honouliuli, had been in decline for several decades. Many once populated areas along the Honouliuli shoreline were abandoned, and the decrease of population continued through the years of the Mahele. In several instances, applicants died between the time a claim was registered in 1847 and when testimonies were offered in 1848 to support the claim.

¹It is of interest to note the fact that the Hawaiian system of land ownership, virtually identical to feudalism in medieval Europe in the ninth to fifteenth centuries, could evolve in total isolation, and is the subject of much speculation among scholars. However, there are some who disagree with the characterization of the Hawaiian land ownership system as feudalism [cf. 30].

²Letter of William Richards dated August 9, 1825, Missionary Herald, June 1826, p. 174–175.