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Native Hawaiian Law

Native Hawaiians, Kānaka Maoli, were a self-governing, sovereign people until July 1898 when the United States annexed the Kingdom of Hawai’i. In early Hawaiian history (1500-1800), four distinct chiefdoms (Hawaiʻi, Maui, Oʻahu, Kaua’i) ruled Hawai’i. King Kamehameha I united the kingdom in 1810, a move which helped preserve Hawaiian independence and international standing. On June 7, 1839, King Kamehameha III proclaimed the Declaration of Rights, which was incorporated into the Hawaiian Constitution in 1840. The 1859 Civil Code was passed by the legislature of the Kingdom of Hawai’i and its constitutional government. The Hawaiian Kingdom law uses the term kānaka maoli to refer specifically to Native Hawaiians and the term kanaka kupa to refer to all subjects of the King, whether native or naturalized “…ina he kanaka kupa Hawaii, a ina paha he haole i hookupa oleia.”(McGregor and MacKenzie, p. 5.) Today, Native Hawaiians are legally defined as descendants of the people who lived in Hawai’i prior to European contact in 1778.

Kamehameha The Great Statue, Hawaii. Kamehameha the Great, conquered the Hawaiian Islands and formally established the Kingdom of Hawai’i in 1810. By developing alliances with the major Pacific colonial powers, Kamehameha preserved Hawaii’s independence under his rule. [photo by Carol M. Highsmith, Library of Congress Prints & Photographs Division, //hdl.loc.gov/loc.pnp/highsm.04478]

Throughout early Hawaiian history, and the history of the Kingdom of Hawai’i, traditional Hawaiian customary law was also observed, either directly or incorporated into the civil code. Kānaka Maoli today have sought to assert and practice those rights as much as possible. The State of Hawai’i Constitution declares,

The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. (Hawaiian Constitution, Art. XII, sec. 7)

Native Hawaiian law is centered on principles of Aloha ‘āina, “commonly translated as ‘love of the land’,” and stewardship, defending the land. It is familial. As this law is so centered in place and culture, the best place to study it is in Hawai’i. If you’re on the East Coast of the U.S., though, the Law Library is a good place to start your research; some of our Native Hawaiian law and Kingdom of Hawai’i law resources are listed below.

Kainaiwai Kivila o Ko Hawaii Pae Aina 1859 (Civil Code of Hawaii, 1859) (Photo by J. Davis/R. Raupach)

Sources

KFH30 1841 .A24 Hawaii. Laws, etc. Ke kumu kanawai, a me na kanawai o ko Hawaii pae aina. Ua kauia i ke kau ia Kamehameha III.

KFH30 1841.A23 Na kanawai a me na olelo ae like; ua hooholoia ma ka ahaolelo o na alii a me ka poe i kohoia i ka halawai ana e like me ke kumu kanawai, aperila. (Boundwith)

KVJ170.A311859 A4 1859 O na kanawai kivila o ko Hawaii pae aina, hooholoia i ka makahiki 1859 :  a ua huiia me ka hope, kahi i paiia’i na kanawai i hoopau ole ia ma ke kanawai kivila, me na kuikahi me na aupuni e, a me na kanawai i hooholoia iloko o 1858-9.

McGregor, Davianna Pomaikaʻi and Melody Kapilialoha MacKenzie.  Moʻolelo Ea O Nā Hawaiʻi: History of Native Hawaiian Governance in Hawaiʻi. Prepared for the Office of Hawaiian Affairs, Department of the Interior, August 19, 2014. Accessed May 1, 2021.

KFH458.C35 2010 Callies, David L. Regulating paradise : land use controls in Hawaiʻi.

Forman, David M. and Susan K. Serrano. Hoʻohana aku, a hoʻōla aku: a legal primer for traditional and customary rights in Hawaiʻi.

DU624.65.N358 2014  A Nation rising : Hawaiian movements for life, land, and sovereignty.

McGregor, Davianna Pomaikaʻi. “An Introduction to the Hoa’aina and Their Rights.” The Hawaiian Journal of History, v. 30, 1996. Accessed May 1, 2021.

Steele, Julia. Aloha ‘Āina, Hawaii Public Radio (Feb. 5, 2016). Accessed May 5, 2021.

Sproat, D. Kapua’ala. Ola I Ka Wai: A Legal Primer for Water Use and Management in Hawai’i. Accessed May 7, 2021.

KFH75.S99 2021 Szymczak, Victoria. Hawaiian legal research.

KFH505.N37 2015 Native Hawaiian law: a treatise.

KFH505.N37 1991 MacKenzie, Melody Kapilialoha, ed. Native Hawaiian rights handbook.

BV3680.H3 H28 2018 Hawaiian Mission Children’s Society. Kōkua Aku, Kōkua Mai: chiefs, missionaries, and five transformations of the Hawaiian Kingdom.

Z4701.F67 1998 Forbes, David W. Hawaiian national bibliography, 1780-1900.

Punawaiola.org Accessed May 1, 2021.

 

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