Kuleana : a genealogy of native tenant rights

Abstract

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.