Abstract for Kuleana: A Genealogy of Native Tenant Rights

This may be the shortest post yet, but Iʻve purposely avoided posting any of my dissertation here on the umiverse. As Iʻm basically done now, I thought Iʻd at least post the abstract here for you r consideration. I plan to convert it to a book as soon as humanly possible.

During the period of the privatization of land in Hawaiʻi (1840 – 1855), kuleana, usually translated as “native tenant rights,” constituted both a right to, and responsibility over, land for Hawaiians. The 1850 Kuleana Act provided a means for makaʻāinana to divide out these rights and gain a fee simple title to the lands under their cultivation. Using a hybrid genealogical method, I argue that these rights were elided by gathering rights in the period since the 1890s. By debating the extent of gathering rights, courts have been able to appear liberal, while obscuring the profound rights of Kānaka Maoli embedded in Hawaiʻi’s land tenure system. The 1850 Kuleana Act was a continuation of the process begun with the 1848 Māhele, which I contend was misconstrued by twentieth century scholars. This contributes to the confusion over native tenant rights. I examine both the foundations of the introduced system of land law (the ideas of dominium, eminent domain and property itself), and responses to kuleana rights – the Land Court, 1895 Land Act, and legal cases such as Dowsett v. Maukeala. In examining its foundations, I use a concept I call theoretical encounter, which attempts to apprehend the meeting of ideas. In analyzing the responses to kuleana, I use the framework of legal pluralism, which acknowledges the simultaneous existence of multiple legal regimes. In examining the question of the alienation of Hawaiians from land, I find that a technique called erasure allowed for a radical forgetting of place. Central to the debate over kuleana lands is the notion of a deadline on claims to such lands. I problematize the idea of a deadline on claims, opening questions over the continued existence of kuleana in the present day.

Advertisements

12 Comments

Filed under Uncategorized

12 responses to “Abstract for Kuleana: A Genealogy of Native Tenant Rights

  1. Kalawaia

    This looks really great. I canʻt wait to read it. I have a question for you that I hope you might be able to help me with. In the 1847 Joint Resolution that laid out the rights of each class, the Hoaaina have certain rights. Then in the 1850 Kuleana Act those who have attained allodial title to land have a different set of rights than the Hoaaina stated in the earlier Joint Resoltuion. IN Oni versus Meek the court comes to a decision that the 1850 Act has now succeeded the 1847 JR. I always thought that the 1847 JR was laying out what Hoaaina rights were, and that the 1850 Act laid out rights of Native Tenants who had seperated their right to land out in the form of a fee simple titled lot. But, it loooks like its more complicated than that after 1850. Wheer do we see the complication between those who have not gotten allodial title versus those who did explined in further detail? Is there anything youʻve seen that does this?

    Like

    • umi

      In my view, your original statement is correct, that the rights laid out are different (perhaps more abstract) than what is addressed in the Kuleana Act. Youʻre way ahead of most people, who donʻt even really see this on the level of rights at all. No, I havenʻt seen anything that really addresses the difference. I had a long talk with Keanu about all of this last night (heʻs reading the diss right now) -and youʻre right its complicated, but I think you have the right understanding.

      Like

  2. Looks great – and your focus seems much revised since I last saw it. I love that you’re problematizing the ‘deadline on claims’ to kuleana lands (or any native entitlement, really). We leave too much presumed around law and policies that prescribe timelines – and their associated structures of meritocracy, due diligence, and reasonable men. Can’t wait to read about your concept of theoretical encounters.

    Like

  3. Keli'ikanaka'ole

    Do you trust any law passed after 1893? It seems the Hawaii State court wants to make everyone heirs……so the families fight over the small lands and the thieves continue their legacy.. you see the blatant theft of our lands in the documents and we have to litigated against Kamehameha Schools, Hawaiian Electric, Churches , Banks..etc…

    Like

    • umi

      Personally, I donʻt. But I had to write in a way to convince those who donʻt necessarily agree with me – I do strongly address the legitimacy of the Republic Court, and its ability to change Hawaiian law.

      Like

  4. Iʻd really like to get a copy asap!
    On the subject of allodial titles.
    Any insight on the term “less than” allodial?
    Itʻs like the feudal system right? Land resorts back to the government. Thats all I know. Many Hawaiian families are being told to move on to their inheritance lands while the International Criminal courts review our claims, which I presume are about fraudulently settled land tiles. They all seem to “believe” that the reinstatement of the Hawaiian KIngdom Government will result in these sorts of claims being revived and re-litigated. But will it?

    Like

    • umi

      I think those in the know now know that less than allodial, or “ma lalo o ke ano alodio” is a life estate. This could mean some land owners who think they have fee simple title, in fact donʻt. This was the appeal to me of writing about land – if a land title is found to be invalid (not just clouded), they can’t say itʻs a “political question,” like they do with sovereignty-related issues.

      As for the dissertation – it is available on the ironically-named UMI: Universal Microfilm Index. Iʻm hesitant to just send out copies because itʻs currently under review with University of Arizona Press.

      Like

      • Kaehuokalani

        Aloha…
        I recently ordered copies of one of the deeds for a Kuleana land of my kupuna and it says “ma ke ano alodio iloko o kahi i olelo ia malalo” I had it translated by Jason Achiu, at the Archives; and he translated it to “an estate in Fee-simple” Is his translation wrong? Should it translate as life estate in said land? Does this mean that my kupuna kuleana reverted back to Kamehameha III (Crown Lands) or to the Government instead of descending to heirs?
        Just wondering because I actually looked into this for genealogy research of where my ohana came from and found that this kuleana had passed into the hands of heirs at law through probate in 1864 in the HK Supreme Court, again between 1880-1900, and again in 1923 all stating “To have and to hold my said parcels of land, with the house upon it and all the rights and benefits pertaining thereto unto…and his heirs, representatives and assigns forever.” Then I came across a summons in 2007 to defendants/heirs to said kuleana for a quiet title action by current occupant/owner wanting to sell the parcel.
        I do understand that all conveyances of land titles did come to a halt in 1893 as the Illegal OCCUPATION of our government began, and that incompetent notaries unable to validate a conveyance of title, voids out any transfers thereafter, but what about the ano alodio title passing to heirs after Awardee’s death in 1864 instead of reverting back to the fee-simple owner?

        Would you help clarify my state of confusion 🙂 it would be greatly appreciated? Mahalo Nui!

        Like

      • umi

        I don’t think it’s a life estate..

        Like

      • umi

        I asked a friend to look at it and he said: “In an allodial fashion as written below” but it is a bit confusing because “i loko” can have a few different meanings..

        Like

  5. Shelley Mahi

    Aloha to all,
    I am with the Native Tenant Protection Council. We are working on the issue of Defunct Sugar Company lands which were leased from the Hawaiian Kingdom Government….records have surfaced that prove leases have long expired on thousands of acres. These “old sugar cane lands” contain Mahele Titles, L.C.Aw. , Government Ahupua’a, Royal Patents, Homesteads, and other Kanaka Appurtenant rights. An urgent message was sent to Congress to freeze all such lands and to make them available to heirs and native tenants. Looking at such available protections as HRS 172-11 where rights of the heirs of royals patents inure even if the land was alienated. County of Hawaii admits in writing they have no policy on native tenants. See also HRS 183C-5 (kuleana lands usage) and HRS174-101(c)
    for appurtenant water rights…..aloha for now….Shelley Mahi

    Like

    • umi

      Shelley – this is very exciting – I can send you my dissertation if you give me an email address. What youʻre doing is relevant to the implications of the dissertation as it moves toward publication as a book.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s