Reid Ginoza at 02:42, 6 May 2006

2006-05-06T02:42:42Z

Reid Ginoza at 17:05, 10 March 2006

2006-03-10T17:05:30Z

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Claims for compensation for loss of
sovereignty, on the other hand, have
been made under several laws, this
chapter will first look at the legal
concept of sovereignty, then consider
the native Hawaiian experience under
that concept. The chapter will then
examine each of the laws under which
claims for loss of sovereignty have
been made.
Finally, this chapter will look at
whether any special trust relationship
exists between the United States and
the native Hawaiians that would be a
basis for compensation. It will then
compare the native Hawaiian claims to
the Alaska Native claims.
While this chapter must cover
technical and legal material,
summaries at the beginning and end of
each portion of the chapter will make
clear the context in which those legal
points are considered.
B. ABORIGINAL TITLE AND COMPENSATION
Aboriginal title is a concept
developed in the law to provide a
basis for a native group that does not
have traditional, legally-accepted
land ownership rights to establish a
claim to land based on use and
occupancy thereof where the sovereign
(an entity separate and distinct from
the native group) has the underlying
fee to said land. It is generally
defined as title derived from the use
and occupancy of land from time
immemorial. 5/ Under the law, a
number of specific tests have
developed that a native group must
meet in order to establish that it has
aboriginal title to a tract of land:
the group must be "a single landowning
entity;" 6/ there must be actual ]_/
and exclusive use and occupancy 6/ of
the land; the use and occupancy must
be of a defined area; 9/ and the land
must be used and occupied for a long
time before aboriginal title was
extinguished. 10/
If the native Hawaiians meet the
tests for holding aboriginal title, to
be entitled to compensation from the
United States the title must have been
extinguished by the government of the
United States, not by the government
of Hawaii, before the United States
annexed Hawaii. 11/ Finally, even if
the aboriginal title was terminated by
the United States, some law must give
the native Hawaiians a right to
compensation for loss of aboriginal
title, since without such a law there
is no right to such compensation. 12/
The following sections will analyze
each of these requirements to
determine: whether the native
Hawaiians had aboriginal title to
portions of the land in Hawaii;
whether the United States extinguished
that title; and whether the native
Hawaiians are entitled to compensation
for loss of that title.
Did the Native Hawaiians Have
Aboriginal Title to the Crown and
Government Lands?
To establish aboriginal title to
the Crown and Government lands, native
Hawaiians must meet each of the tests
for such title set forth above. 13/
Under present law, the native
Hawaiians as a group (without
determining what persons would qualify
as native Hawaiians) meet some but not
all parts of the test to be a single
landowning entity. 14/ Courts have
held that, even in the absence of
political cohesion, Indians having a
common culture, common language, ties
of kinship, economic ties, treated by
the sovereign as having collective
rights in the area claimed, and having
common use of a claimed area,
constituted a single landowning
entity, 15/ The native Hawaiians were
a group with a common culture,
language, and ties of kinship.
Their economic ties in the
nineteenth century are less apparent,
since commoners were free to move from
one ahupua'a to another, and since,
during that century, many native
Hawaiians left the land to work for
334

@@ Line 9: / Line 9: @@
 claims for loss of sovereignty have
 been made.
 Finally, this chapter will look at
 whether any special trust relationship
@@ Line 16: / Line 17: @@
 compare the native Hawaiian claims to
 the Alaska Native claims.
 While this chapter must cover
 technical and legal material,
@@ Line 22: / Line 24: @@
 clear the context in which those legal
 points are considered.
 B. ABORIGINAL TITLE AND COMPENSATION
 Aboriginal title is a concept
 developed in the law to provide a
@@ Line 35: / Line 39: @@
 defined as title derived from the use
 and occupancy of land from time
-immemorial. 5/ Under the law, a
+immemorial. <u>5</u>/ Under the law, a
 number of specific tests have
 developed that a native group must
@@ Line 41: / Line 45: @@
 aboriginal title to a tract of land:
 the group must be "a single landowning
-entity;" 6/ there must be actual ]_/
+entity;" <u>6</u>/ there must be actual <u>7</u>/
-and exclusive use and occupancy 6/ of
+and exclusive use and occupancy <u>8</u>/ of
 the land; the use and occupancy must
-be of a defined area; 9/ and the land
+be of a defined area; <u>9</u>/ and the land
 must be used and occupied for a long
 time before aboriginal title was
-extinguished. 10/
+extinguished. <u>10</u>/
 If the native Hawaiians meet the
 tests for holding aboriginal title, to
@@ Line 55: / Line 60: @@
 United States, not by the government
 of Hawaii, before the United States
-annexed Hawaii. 11/ Finally, even if
+annexed Hawaii. <u>11</u>/ Finally, even if
 the aboriginal title was terminated by
 the United States, some law must give
@@ Line 61: / Line 66: @@
 compensation for loss of aboriginal
 title, since without such a law there
-is no right to such compensation. 12/
+is no right to such compensation. <u>12</u>/
 The following sections will analyze
 each of these requirements to
@@ Line 71: / Line 76: @@
 Hawaiians are entitled to compensation
 for loss of that title.
 Did the Native Hawaiians Have
-Aboriginal Title to the Crown and
+====Did the Native Hawaiians Have Aboriginal Title to the Crown and Government Lands?====
 Government Lands?
 To establish aboriginal title to
 the Crown and Government lands, native
 Hawaiians must meet each of the tests
-for such title set forth above. 13/
+for such title set forth above. <u>13</u>/
 Under present law, the native
 Hawaiians as a group (without
@@ Line 83: / Line 89: @@
 as native Hawaiians) meet some but not
 all parts of the test to be a single
-landowning entity. 14/ Courts have
+landowning entity. <u>14</u>/ Courts have
 held that, even in the absence of
 political cohesion, Indians having a
@@ Line 92: / Line 98: @@
 common use of a claimed area,
 constituted a single landowning
-entity, 15/ The native Hawaiians were
+entity, <u>15</u>/ The native Hawaiians were
 a group with a common culture,
 language, and ties of kinship.
 Their economic ties in the
 nineteenth century are less apparent,
 since commoners were free to move from
-one ahupua'a to another, and since,
+one <u>ahupua'a</u> to another, and since,
 during that century, many native
 Hawaiians left the land to work for
+{{p|334}}

Template:Nhsc-v1-334 - Revision history

Reid Ginoza at 02:42, 6 May 2006

Reid Ginoza at 17:05, 10 March 2006