#218 in the Moʻolelo series. Those familiar with my work will know my view – shared by some other scholars of my generation – of the Māhele and Kuleana Act. This is an attempt to make that view brief and understandable to the non-specialist.
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. As is pointed out in the Andrews dictionary:
Kuleana, s. [substantive (noun)] A part, portion or right in a thing.n 2. A right of property which pertains to an individual.n 3. a friend; a portion belonging to a friend. 4. One’s appropriate business … NOTE.—In modern times, kuleanarefers to a small land claim inside another’s land, that is, a reserved right in favor of some claimant
Andrews dictionary
So kuleana not only means “right,” in addition to “responsibility,” it specifically means title to a piece of land! 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. All original land titles contained the rider “koe nae na kuleana o na Kanaka ma loko”– reserving the rights of native tenants. That meant that full ownership of land was not possible unless all claims “ma loko” – inside – a property we’re extinguished. (This is what Facebook founder Mark Zuckerberg faced on Kauaʻi, but unlike most buyers, he had the resources to buy or sue all Juliana right holders in his property).
The conflation of gathering rights with these more fundamental ownership rights contributes to the confusion over native tenant rights.
Kēhaulani Kauanui spends about a page (or two) in her book Paradoxes of Hawaiian Sovereignty on my view of the Māhele, which she seems to partly agree with, but at the same time undercut (along with that of my fellow travelers in this view such as Preza, Beamer and Sai). She appears to agree with me in that, within the framework of the modern Hawaiian nation-state, my view is probably correct. But her critique is that the entire category of private property is linked with the colonial processes of male dominance, the dominance of the modern European Nation-State over tribal, Indigenous peoples, and “heteronormativity” – the dominance of “conventional” sexual orientation. This critique is at another “level” – a “lower” level in the sense that it critiques the assumptions upon which the argument is built – that Hawaiʻi was a modern nation-state with “modern” laws, i.e., those same kinds of laws that marginalized nonconforming groups, and incidentally, non-Christians.
the umiverse 