Reid Ginoza at 02:50, 6 May 2006

2006-05-06T02:50:00Z

Reid Ginoza at 17:06, 10 March 2006

2006-03-10T17:06:18Z

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s i g n i f i e s that the Hawaiian Government
treated the native Hawaiians as having
"collective rights" 3_1/ in *h«
Government and Crown lands, this
treatment does not, in and of i t s e l f,
establish that the native Hawaiians
constituted a single landowning
e n t i t y , 32/ which, in turn, is only
one of the prerequisites for the
existence of aboriginal t i t l e.
Furthermore, even if the quoted
language were an acknowledgment by the
Hawaiian Government that native
Hawaiians had a right to exercise some
degree of control over the Government
and Crown lands, this acknowledgment,
in and of i t s e l f , does not prove the
existence of aboriginal t i t l e to these
lands. 33/ The existence of
aboriginal t i t l e is a question of fact
th?.t ,iust be established by clear and
definite proof. 34/ The historical
record reveals developments in
individual ownership by native
Hawaiians of many of these same lands
between 1848 and 1893 and the
ownership and/or use of many of the
Government and Crown lands by
non-natives by 1893 35/—facts that
belie the arguments based on the 1840
Constitution and Great Mahele.
The first test for aboriginal t i t le
is the existence of a "single
landowning entity." While the native
Hawaiians, as a group, meet some of
the requirements for a "single
landowning entity," they do not meet
a l l such requirements. As noted, they
did not have common economic ties
that united them. Not only were
commoners free to move from one
ahupua'a to another, but during the
nineteenth century many native
Hawaiians abandoned the land to work
for foreign landowners in Hawaii or to
work in other non-agricultural
pursuits. 36/ Second, it does not
appear that they made common use of
the Crown and Government lands after
1848, in light of the ownership of
many of these lands by individual
native Hawaiians and individual
non-natives, and the use of many
of these lands by non-natives under
leases from the Hawaiian Government.
Third, even if the Hawaiian Government
had treated the native Hawaiians as
having "collective rights" in the
Crown and Government lands prior to
1848, it appears that it did not do so
after that date. Indeed, passage of
the Kuleana Act (and related
l e g i s l a t i o n ) , which opened the way to
ownership of Crown and Government
lands by individual native Hawaiians
and individual foreigners, and the
practice of leasing Government and
Crown lands to foreigners indicate
that after 1848 the Hawaiian
Government did not view the native
Hawaiians as an entity that had
"collective rights" in the Crown and
Government lands. In order for a
group to be deemed a "single
landowning entity," it must have been
viewed as an entity having collective
rights as of the alleged date of
extinguishment of t i t l e . 37/
One comment received by the
Commission on i t s Draft Report states
that the Hawaiian Government was the
"single landowning entity" required
for the existence of aboriginal t i t l e.
In effect, the commenter asserts that
the native Hawaiians and the Hawaiian
Government are one and the same for
the purpose of aboriginal t i t l e . 38/
It is clear, however, that the
government of Hawaii represented all
the citizens of Hawaii, not just the
native Hawaiians. Additionally, it is
significant that the United States
dealt with the government of Hawaii as
a separate sovereign, or foreign
country, the same way in which it
dealt with France, for example. The
United States Government did not treat
Hawaii as a domestic dependent nation
as it did e n t i t i e s such as Indian
t r i b e s . Moreover, the commenter's
view is not consistent with the facts.
The Kuleana Act of 1850 abolished the
rights of native tenants to grow crops
and pasture animals on Government and
Crown lands. 39/ This statute was
interpreted by the Hawaiian Supreme
336

@@ Line 1: / Line 1: @@
-s i g n i f i e s that the Hawaiian Government
+signifies that the Hawaiian Government
 treated the native Hawaiians as having
-"collective rights" 3_1/ in *h«
+"collective rights" <u>31</u>/ in the
 Government and Crown lands, this
-treatment does not, in and of i t s e l f,
+treatment does not, in and of itself,
 establish that the native Hawaiians
 constituted a single landowning
-e n t i t y , 32/ which, in turn, is only
+entity, <u>32</u>/ which, in turn, is only
 one of the prerequisites for the
-existence of aboriginal t i t l e.
+existence of aboriginal title.
 Furthermore, even if the quoted
 language were an acknowledgment by the
@@ Line 15: / Line 15: @@
 degree of control over the Government
 and Crown lands, this acknowledgment,
-in and of i t s e l f , does not prove the
+in and of itself, does not prove the
-existence of aboriginal t i t l e to these
+existence of aboriginal title to these
-lands. 33/ The existence of
+lands. <u>33</u>/ The existence of
-aboriginal t i t l e is a question of fact
+aboriginal title is a question of fact
-th?.t ,iust be established by clear and
+that must be established by clear and
-definite proof. 34/ The historical
+definite proof. <u>34</u>/ The historical
 record reveals developments in
 individual ownership by native
@@ Line 30: / Line 30: @@
 belie the arguments based on the 1840
 Constitution and Great Mahele.
-The first test for aboriginal t i t le
 is the existence of a "single
 landowning entity." While the native
@@ Line 36: / Line 37: @@
 the requirements for a "single
 landowning entity," they do not meet
-a l l such requirements. As noted, they
+all such requirements. As noted, they
 did not have common economic ties
 that united them. Not only were
 commoners free to move from one
-ahupua'a to another, but during the
+<u>ahupua'a</u> to another, but during the
 nineteenth century many native
 Hawaiians abandoned the land to work
 for foreign landowners in Hawaii or to
 work in other non-agricultural
-pursuits. 36/ Second, it does not
+pursuits. <u>36</u>/ Second, it does not
 appear that they made common use of
 the Crown and Government lands after
@@ Line 60: / Line 61: @@
 , it appears that it did not do so
 after that date. Indeed, passage of
-the Kuleana Act (and related
+the <u>Kuleana</u> Act (and related
-l e g i s l a t i o n ) , which opened the way to
+legislation), which opened the way to
 ownership of Crown and Government
 lands by individual native Hawaiians
@@ Line 76: / Line 77: @@
 viewed as an entity having collective
 rights as of the alleged date of
-extinguishment of t i t l e . 37/
+extinguishment of title. <u>37</u>/
 One comment received by the
-Commission on i t s Draft Report states
+Commission on its Draft Report states
 that the Hawaiian Government was the
 "single landowning entity" required
-for the existence of aboriginal t i t l e.
+for the existence of aboriginal title.
 In effect, the commenter asserts that
 the native Hawaiians and the Hawaiian
 Government are one and the same for
-the purpose of aboriginal t i t l e . 38/
+the purpose of aboriginal title. <u>38</u>/
 It is clear, however, that the
 government of Hawaii represented all
@@ Line 97: / Line 99: @@
 United States Government did not treat
 Hawaii as a domestic dependent nation
-as it did e n t i t i e s such as Indian
+as it did entities such as Indian
-t r i b e s . Moreover, the commenter's
+tribes. Moreover, the commenter's
 view is not consistent with the facts.
-The Kuleana Act of 1850 abolished the
+The <u>Kuleana</u> Act of 1850 abolished the
 rights of native tenants to grow crops
 and pasture animals on Government and
-Crown lands. 39/ This statute was
+Crown lands. <u>39</u>/ This statute was
 interpreted by the Hawaiian Supreme
+{{p|336}}

Template:Nhsc-v1-336 - Revision history

Reid Ginoza at 02:50, 6 May 2006

Reid Ginoza at 17:06, 10 March 2006