| Book Review | Law and History Review, 27.1

Book Review

Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska, Cambridge: Harvard University Press, 2007. Pp. 400. $35.00 (ISBN 978-0-674-02612-4).

Professor Banner tells the fascinating story of how western property law came to be imposed on the various lands in and around the Pacific Ocean that came under Anglo-American domination from the late eighteenth century to the late nineteenth century and of how this process, though relying on the application of differing legal structures, almost uniformly resulted in the legal dispossession of the native inhabitants.

In Australia, British administrators seized upon early explorers' reports that the indigenous people were few, non-agricultural, and (in the view of Europeans) culturally backward to justify declaring the entire continent "terra nullius," un-owned land lacking inhabitants with rights in land that the European colonizers were bound to respect. This was contrary to the policy British (and American) governments had generally adopted in eastern North America, where Indian lands could only be taken for White settlement by purchase or, failing that, by conquest.

Functionally equivalent policies were adopted elsewhere by paternalistic design (British Columbia), through administrative inertia (Alaska), or as a result of direct political pressure from a fast-growing settler population (California). In Oregon and Washington, the more usual treaty-making process was ultimately adopted, but only after the failure of an initial policy of terra nullius, an initial round of treaties that went unratified by the U.S. Senate, and the threat of a violent response to the continued influx of White settlers. Even then, the process went forward with little inquiry into the bona fides of those Indian "leaders" who purported to extinguish tribal claims to vast tracts of land.

In Hawai'i and New Zealand, the presence of large Native populations engaged in intensive agriculture made it impossible for would-be colonizers to ignore the land claims of the indigenous inhabitants. In Hawai'i, a well-founded fear of annexation by some foreign power prompted King Kamehameha III to adopt a Western-style property regime that would recognize and record the islanders' claims to their lands; in New Zealand, a similar process was undertaken by the British colonial administrators. In both cases, however, procedural difficulties prevented many claimants from obtaining ownership of the lands they had occupied, and subsequent changes in the law so facilitated the conveyance of Native land to White immigrants that by 1900 most land in Hawai'i and New Zealand had passed out of Native hands. Only in Fiji and Tonga did the indigenous people retained control of the bulk of their lands, aided by their strong agricultural tradition, political unity (present in Tonga, as in Hawai'i, but absent in Fiji and New Zealand), and decisions by colonial administrators in both Fiji and Tonga to limit White immigration.

The creators of a new property law regime determine what claims to ownership of land are to be respected under the new system and have the awesome power to define disfavored claims out of existence. Banner shows that Anglo-American administrators used this power freely to deprive Native peoples of their lands. A Hawai'i -based reader will however be struck by the fact that here, uniquely, the transition to an Anglo-American regime of property law (generally known as the Māhele, or "land division" of 1848) was conducted by a Native government chiefly concerned with securing the ownership rights of its Native citizens, not with facilitating the conveyance of their land (and the power that goes with control over land) to settlers.

Modern critiques of the Hawaiian Māhele tend to focus on its limited success in recognizing and preserving the land rights of the Hawaiian maka'ainana (commoners), together with the undeniable fact that the establishment of a system of freely alienable land titles was followed by a massive transfer of land (and ultimately of political power) into the hands of non-Native settlers. The Māhele and its aftermath, including the 1898 annexation of Hawai'i by the United States over the vigorous opposition of the great majority of its Native Hawaiian citizens, remain a subject of debate in the context of efforts to achieve recognition of some degree of Native Hawaiian "sovereignty," whether in a form analogous to the powers of governance over an identifiable land base exercised by federally recognized Indian tribes elsewhere in the United States (as proposed in legislation now before the U.S. Congress) or in some other manner. No doubt unintentionally, Banner becomes entangled in this debate through his use of the chapter title "Hawaii: Preparing to be Colonized," with its implicit suggestion that as Hawaiians themselves initiated the process that resulted in their loss of land and sovereignty, their modern descendants have no legitimate basis to complain about their continuing dispossession. Setting aside any inadvertent political overtones, however, Banner's work should cause us to reexamine our opinions of the Māhele and its advocates. The Māhele did not take place in a vacuum; Kamehameha III and his advisers were acutely aware of events elsewhere in the Pacific and may quite reasonably have believed that failure to create a property regime which foreign nations would respect would lead to the mass dispossession of Hawaiians in the event, then perceived as likely, that the Islands might soon come under the control of the U.S. or some European power. Although the Māhele was plagued with deficiencies that reduced its effectiveness as a means to preserve the land claims of the maka'ainana (commoners), Banner allows the comparison to be made between the settler-administered process for registering Maori land claims in New Zealand and the much more Native-friendly administration of the Māhele by Kamehameha III's Board of Commissioners to Quiet Land Titles. For example, the Commissioners (three out of five being Native Hawaiian) traveled throughout the Islands to take testimony on-site from claimants and their neighbors, whereas New Zealand's Native Land Court, staffed exclusively by British officials, required claimants to travel to distant towns to attend often dilatory proceedings that imposed substantial costs on claimants. Finally, as Robert Stauffer has demonstrated, criticism of the Māhele on the grounds that a mere 1 percent of the lands awarded went to the maka'ainana, is unfounded because the highly productive irrigated lands typically awarded to them were much more valuable, on an acre-for-acre basis, than were the unproductive uplands which constituted the bulk of the acreage awarded to the ali'i (members of the nobility). Archaeologists tell us that at the time of Captain James Cook's first visit to Hawai'i in 1778, the Islands' population was bumping up against the carrying capacity of the land as limited by its ability to produce food, and population pressure had caused cultivation to be extended to relatively marginal lands. By the time of the Māhele seventy years later, catastrophic decreases in the Native population as a result of newly introduced diseases had caused the abandonment of much of the land that had been under cultivation at the time of Cook's voyage. Land without tenants to make it economically productive would have been of relatively little value to the ali'i to whom it was awarded, and the architects of the Māhele cannot reasonably be criticized for failing to foresee the manner in which improved irrigation techniques and the coming of large-scale sugar plantations would revolutionize the Hawaiian economy in the years to come, or with failing to foresee that subsequent legal developments (especially legislation allowing changes in land ownership through adverse possession and nonjudicial foreclosure) would greatly facilitate the loss of Hawaiian land.

Carl C. Christensen

University of Hawai'i

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