Fractured Ownership and the Tragedy of the Anticommons in Hawai‘i

Abstract

The decline in the number of Native Hawaiian–owned kuleana properties is partly the result of legal frameworks surrounding heirs' property adjudication, which does not easily allow families with multiple owners to collectivize their interests. As a result, families are made vulnerable to land dispossession by developers' use of quiet title and partition actions through the courts. Based on fieldwork that incorporates ethnography and archival research, I explore the disjunction of kin-based patterns of inheritance within a culturally Western legal framework that values one owner, one property scenario. A novel analysis of heirs' property reveals the extent to which current legal doctrine is inherently unsuited to address both real and intangible inheritance patterns, thereby creating property and wealth destruction characteristic of a tragedy of the anticommons.