The ancient Hawaiians’ version of property ownership was by ahupua‘a, a division of land running from the mountains (mauka) to the sea (makai). The ahupua‘a supplied food and materials to the maka‘ainana (commoner residents) who tended the land, as well as to the konohiki (overseers) who administered the ahupua‘a, and the ali‘i nui (chief), who was often responsible for one or more ahupua‘a. Today, Article XII, Section 7 of the Hawaii Constitution, adopted in 1978, states “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." These rights are maintained regardless of the ownership of the land.
A dramatic change occurred in 1845 when King Kamehameha III changed property ownership to be more like the westernized system with land titles. Hawaii lands were divided up among the Kingdom, Chiefs, and the Territorial government, in what is known as Ka Mahele ( “The Division”). In 1850, a law was passed allowing native tenants to claim title to the lands they worked and acquire what is known as a Kuleana parcel. Today Kuleana rights are still attached to the land irrespective of the current owners of the title or deed. The rights attached to the decedents of the original Kuleana owners include: access, agricultural use, gathering and religious ceremony rights, rights to a single-family dwelling, water rights, and fishing rights. An adjoining property may be the only way to access to Kuleana and the rights to water in a stream on the property may be under the control of the Kuleana. Many of the Kuleana are never used, but at any time a group or individual could show up and plant taro or construct a house on the parcel within the property. Kuleana details are defined in Hawaii Revised Statutes (HRS) Chapter 183C.
The Highways Act of 1892 approved by Queen Liliuokalani guarantees the public’s right-of-way to all existing trails at that time. This act combined with HRS Chapters 171 and 264. is under the jurisdiction of the State Board of Land and Natural Resources so that private property with historically used trails must allow public access to the trail.
And any property with a building, structure, or burial site that is over 50 years old may be designated as a Historic site under HRS Chapter 6E. The DLNR State Historic Preservation Division is responsible for all 6E sites and property owners are limited in what they can do with that portion of their property. In many cases the sites are cordoned off so that the historic areas cannot be accessed by the owners.
But, even if a fee-simple property doesn’t have a Kuleana, historic site, or trail on it, native Hawaiians may still have the right to gather on the property for religious or cultural purposes. The Hawaii Supreme Court ruled that Hawaii Revised Statutes section 7-1 protect the gathering rights of native Hawaiians on Moloka’i on private property. Pele Defense Fund also won a case that gave them access to private land for religious purposes based on the land’s historic use. In another case, a building permit issued by Hawaii County to develop a resort was successfully challenged when the Hawaii Supreme Court ruled that native Hawaiians retain their rights to pursue traditional and customary activities. The Hawaii Supreme Court did clarify that “fully developed” residential property is not open to native Hawaiian gathering rights, but the court acknowledged that the reality of property ownership in Hawaii is that “ land title in Hawaii confirms only a limited property interest”.