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64 Wash. L. Rev. 233 (1989)
The Kuleana Act Revisited: The Survival of Traditional Hawaiian Commoner Rights in Land

handle is hein.journals/washlr64 and id is 245 raw text is: Copyright @ 1989 by Washington Law Review Association THE KULEANA ACT REVISITED: THE SURVIVAL OF TRADITIONAL HAWAIIAN COMMONER RIGHTS IN LAND Maiv n Clech Lim* AbstracL The issue of aboriginal land rights raises significant legal and moral questions. The starting point for discussion of Native Hawaiian land rights is the Kuleana Act of 1850. This Act enabled Hawaiian commoners, for the first time in Hawaiian history, to acquire fee simple title to land. The Act did not, however, contain provisions simultane- ously terminating their traditional rights in land. What these traditional rights consist of, and to whom they apply, remain relevant issues. The author examines the Act in the context of its surrounding history, laws, and judicial interpretations, and concludes that the Kuleana Act introduced a system of rights parallel to traditional Hawaiian land rights, not in derogation of them. Consequently, the author argues, traditional land rights remain available, uiider the law, to descendants of the commoners of 1850. I. Introduction ........................................... 234 II. Historical Context ..................................... 237 A. Background ....................................... 237 B. The Traditional Political Structure ................. 239 C. The Traditional Land Tenure System .............. 241 D. The Impact of the West ........................... 244 1. The Needs of Westerners ....................... 245 2. Conflicting Values ............................. 246 3. The Role of the Ali'i ........................... 248 4. The Recourse to Law .......................... 251 III. The Kuleana Act ...................................... 252 A. The Pre-1850 Land Tenure Laws .................. 253 1. The Declaration of Rights ..................... 253 2. The First Constitution ......................... 254 3. Land Commission Principles and Practices ..... 255 ' Assistant Director, Law of the Sea Institute, University of Hawai'i. B.A. 1965, Marygrove College; M.A. 1967, Yale University; M.Ph. 1981, Yale University; J.D. 1984, University of Hawai'i. The viewpoint expressed here does not implicate any of the above institutions. This Article reflects my belief that cultural diversity is a good in itself, and expresses my gratitude to the Hawaiian people for letting me know a little of who they are. Many have helped and supported me in the writing of this manuscript. Lamson Lam and Truong Bun Lim gave the gifts of love and forbearance. I also owe much, for their aid, encouragement, and comments, to: Scott Allen, Marjorie An, Edward D. Beechert, R. Kekuni Blaisdell, Donna Burns, Williamson Chang, John P. Craven, Philip Elman, Michael C. Hare, Lilikala Kame'eleihiwa, Marion Kelly, Duncan Kennedy, Teresa Mansson, Mar Matsuda, David Stannard, Carol Stimson, Bill Tam, Haunani-Kay Trask, Mililani Trask, Charles F. Wilkinson, and Ida Yoshinaga. Andrea Lairson and Deborah Dwyer edited the manuscript and strengthened it immeasurably. I alone, unfortunately, bear responsibility for deficiencies.

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