Narrating the origins of a property regime affords an opportunity to shape that regime in several important respects. For one thing, an origin story can shape the language that participants in the regime use to make property claims. For another, because every property regime is preceded by some other entitlement distribution, how we account for that distribution—eliminating it, preserving it, or modifying it in some way—can shape the political economy of the resulting property regime. In short, origin stories can shape the kinds of property claims people think are plausible and privilege some forms of economic activity over others.

I develop these two insights—origin stories as tools to shape the language of property and to embed a political economy within the property regime—by reconstructing three resource-use contests in the aftermath of property reform in the Kingdom of Hawai‘i in 1848. In these contests, the kingdom’s denizens—both Hawaiian and haole (foreign)—formed expectations about property that relied on Hawaiian land ways, or the practices and relationships that Hawaiians had used to govern access to and allocation of resources. They articulated property claims that reinterpreted those land ways to navigate a period of intense legal, social, and economic transformation.

As the Hawaiian Supreme Court considered these claims, its justices toggled between two stories about property’s origins in the kingdom. On one account, property accomplished a revolution that wiped clean the slate of Hawaiian land relations, such that any reliance on Hawaiian land ways after reform was misplaced. On another, property built atop an existing foundation, and it was the court’s job to sort out how Hawaiian land ways informed the meaning of property. In shifting between these accounts, the court recognized a hybrid quality in Hawaiian property. The court shaped the kingdom’s property language by selectively including Hawaiian land ways, seemingly to privilege modes of land use that judges believed would lead to economic growth. Hybridity in Hawaiian property is therefore hard to disentangle from the demands of extractive capitalism. And yet, after Hawai‘i became a state in 1959, its supreme court would revise its property doctrine precisely to challenge the claims of a propertied elite, and it would do so by drawing upon and reinterpreting Hawaiian land ways, which remained part of the islands’ property regime.

* Assistant Professor of Law, UC Berkeley School of Law. This paper has benefited from thoughtful conversations at faculty workshops at Berkeley Law, the UC Irvine School of Law, the New York University Race and Inequality Colloquium, the Culp Colloquium, the Harvard/Yale/Stanford 2025 Junior Faculty Forum, and the 2025 Property Works in Progress Conference. Many thanks to Greg Ablavsky, Ashraf Ahmed, Troy Andrade, Abhay Aneja, Felipe Ford Cole, Seth Davis, Anna di Robilant, Sam Erman, Brittany Farr, Kellen Funk, Hendrik Hartog, Christine Jolls, Saul Levmore, Amanda Parsons, Dylan Penningroth, Christina Ponsa-Kraus, Kate Redburn, Joseph Singer, Norman Spaulding, Aaron Tang, Rebecca Tushnet, and Salomé Viljoen for their generous feedback. I am forever grateful to Greyson Spencer, for his maps and his love. Thank you to the Stanford Law Review editors for their outstanding support, and particularly to Annelisa Kingsbury Lee and Yingtong Guo for their insightful engagement with this piece. All errors are my own.