Preparing to be colonized : Land tenure and legal strategy in nineteenth-century Hawaii

In the late nineteenth and early twentieth centuries, throughout the Pacific Rim, European and American colonizers reorganized indigenous systems of property rights in land to make them look more like European property systems, with disastrous effects for the indigenous people involved. The very first of these schemes, however, was the Mahele of 1845-1855, which took place not in a colony but in the independent Kingdom of Hawaii. Why did the Hawaiians do this to themselves? I argue that the Mahele was a sophisticated and partially successful response to the prospect that Hawaii would soon be colonized. The object of the Mahele was to ensure that in the event of annexation, Kamehameha III and other elite Hawaiians would not be dispossessed of their landholdings. The strategy was to convert those landholdings into a legal form that would be recognized by an incoming colonial government-whether American, British, or French-as private property. In the late nineteenth and early twentieth centuries, throughout the Pacific Rim, European and American colonizers reorganized traditional indigenous systems of property rights in land in order to make them look more like European property systems. In New Zealand, the British colonial government established the Native Land Court in the 1860s to convert Maori usufructuary rights into English fee simple titles (Williams 1999). Soon after, Britain set up a similar institution to reallocate property rights in Fiji (France 1969:129-64). In the western United States, the Dawes Act of 1887 authorized the same kind of reorganization of tenure in much of the land still possessed by American Indians (Hoxie 1989:147-87). Similar processes took place in the German colonies of New Guinea and Samoa, in French Polynesia, and in the joint British-French New Hebrides (Sack 1973:127-36; Gilson 1970:404-15; Newbury 1980:216-24; Van Trease 1987:63-91). While the details of these schemes varied, they were all structurally similar to the enclosure of European common fields over the preceding several centuries. Government-appointed commissioners were to determine who owned the right to use the various resources present on the land, and to replace those customary use-rights with written documents evidencing the ownership of parcels of land itself. Indigenous oral property systems based on command over individual resources were converted into European written property systems based on command over zones of land (Banner 2002). These reforms were intended by their framers to serve two goals. Colonial governments expected that converting land tenure to the European style would facilitate the civilization of indigenous people, by providing them with greater incentives toward agricultural productivity. At the same time, colonial governments hoped that the eradication of complex indigenous property systems would bring indigenously owned land more efficiently onto the real estate market, where it could be purchased by settlers of European descent. The consensus today among historians is that wherever these schemes were rigorously carried out they were disastrous for the indigenous people involved. In the United States, the allotment of Indian reservations smoothed the way for the Indians to lose tens of millions of acres of land and, instead of encouraging Indian farming, actually reduced the amount of Indian land under cultivation (Carlson 1981; McDonnell 1991). New Zealand's Native Land Court was the engine that drove a massive transfer of land from the Maori to British settlers and their government (Williams 1999; Ward [1974]1995). Because of their results, these land tenure reforms are often viewed with considerable cynicism today as thinly veiled colonial land grabs. It comes as a bit of a jolt, then, to recall that the very first of these schemes took place in the independent Kingdom of Hawaii. The Mahele (or Division) of 1845-1855 dismantled much of the traditional Hawaiian system of property rights in land and replaced it with the Anglo-American system of alienable fee simple titles. …