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irrigation. " Maka'ainana could freely trade and move within the ahupua'a, however all of the activities
<br />were regulated by a very intricate system of rules designed to conserve natural resources and provide
<br />for all ahupua'a residents. This system of land tenure also gave the maka'ainana the power to move to
<br />another ahupua'a if they were ill-treated, which then poorly reflected the ability of an ahupua'a chief to
<br />make the land productive. This is a simplified version, as there are many interpretations and differences
<br />of opinion in the freedom given to commoners, however, for the purposes of understanding land tenue,
<br />this document considers this perspective. This system was vastly different from what we have today,
<br />and also allows one to understand why the concept of private land ownership impacted not only the
<br />land tenure system, but also the Hawaiian society and order.
<br />Contact with the Europeans and the Americans brought radical changes. Kamehameha I, using Western
<br />arms and allies, brought all of the islands, with the exception of Kauai, under his control. In 1810,
<br />Kamehameha gained the allegiance of Kauai's chief, Kaumuali'i, thus uniting all the islands under one
<br />rule. Kamehameha I did divide the lands among his chiefs in the customary way, and he also created
<br />another administrative level by appointing loyal chiefs to be governors on each of the islands."
<br />Kamehameha's son Liholiho, serving as King Kamehameha II, created changes to societal and land
<br />tenure. With the encouragement of Ka'ahumanu and his mother, the high chiefess Keopuolani,
<br />Kamehameha II abandoned the kapu (religious restrictions) that included a prohibition on men and
<br />women eating together. By openly eating with Ka'ahumanu and Keopuolani in an act known as the 'ai
<br />noa (free eating), Kamehameha II abandoned the traditional religion. 16 From this point on, we see an
<br />influx of Europeans and Americans, new treaties, influences, as well as the Protestant Calvinist
<br />missionaries. Early commerce and trade was centered on active fur and sandalwood trades, as well as
<br />the whaling industry. When overharvesting collapsed the sandalwood trade and whaling stocks
<br />diminished, Europeans and Americans, looked towards large-scale agricultural products and the
<br />pressure to change the traditional land tenure system intensified. The Constitution of 1840, under
<br />Kamehameha III, formally declared that the land belonged to the chiefs and people with the king as
<br />trustee for all. The 1840 Constitution established a governmental structure for the kingdom, confirming
<br />the authority of the island governors, appointed by the king, and it created two bodies of legislative
<br />council, a judicial system, the kuhina nui (prime minister), and four others appointed by the House of
<br />Representatives.
<br />The next big change was with the Mahele period, which started with the act creating the Land
<br />Commission. The King would retain his private lands, subject only to the rights of the tenants, and the
<br />remaining land of the kingdom would be divided into thirds: one-third to the Hawaiian government,
<br />one-third to the chiefs and konohiki, and the final third to the native tenants. 17 In 1848, the king held
<br />almost 2.5 million acres, or 60.3% of the total land, while the chiefs had received a total approximating
<br />1.6 million acres18. The king divided his lands into two parts. The larger portion, about 1.5 million acres,
<br />he "set apart forever to the chiefs and people: of the kingdom". The legislative council then ratified and
<br />accepted the lands conveyed to the chiefs and people, declaring them to be "set apart as the lands of
<br />the Hawaiian government, subject always to the rights of tenants." These lands were designated as
<br />14 Marion Kelly, Changes in Land Tenure in Hawaii, 1778-1850 (un published M.A. thesis, University of Hawaii -
<br />Manoa)
<br />15 Compare, E.g., Chinen, Mahele, supra note 22, at 5 and Ralph S. Kuyendall, The Hawaiian Kingdom 1778-1854:
<br />Foundation and Transformation 269 (1938)
<br />16 Samuel Manaiakalani Kamakau, Ruling Chiefs of Hawaii 222-25 (1961) and as described in Native Hawaiian Law —
<br />A Treatise pg 10 (2015)
<br />17 Pirvy Council Minutes, Dec. 21, 1849, available in Ka Huli Ao Digital Archives, http://punawaiola.org
<br />"Jon J. Chinen, The Great Mahele: Hawaii's Land Division of 1848 (1958).
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