The Kuleana Act and the Disappearance of Native Hawaiian Land

The Kuleana Act of eighteen fifty was designed, in the language of its framers, to benefit the common people of Hawaii. Before it, all land in the kingdom had belonged nominally to the ali'i, the chiefly class, with commoners holding customary use rights that were real but not legally titled. The Great Mahele of eighteen forty-eight had begun the process of dividing land into individual parcels. The Kuleana Act was supposed to extend the right of fee-simple ownership to the people who actually farmed the land.

The gap between the intention and the outcome was the application process. To claim a kuleana parcel, a commoner had to hire a surveyor, file legal documents, pay fees, and navigate a bureaucratic system conducted primarily in English by a government increasingly composed of people who were not Hawaiian. Most Native Hawaiian commoners did not have the money or the legal access to do this. Foreign landowners and speculators did.

The result, over the following decades, was one of the largest land transfers in Pacific history. By eighteen ninety, foreigners owned roughly one million acres of Hawaiian land. The people who had held customary rights to specific fields, fishing grounds, and water sources for generations found those rights unrecognized in the new legal order, and the land passed to buyers who understood the paperwork better than the people it was meant to protect.

The pattern was not unique to Hawaii. Similar mechanisms played out in California, in New Mexico, in the Philippines. A legal framework written in the language of rights was used to transfer those rights to people who had not held them before. What the Kuleana Act demonstrates is how the form of justice and the substance of dispossession can be made to look like the same document.