Reid Ginoza at 02:53, 6 May 2006

2006-05-06T02:53:04Z

Reid Ginoza at 17:19, 10 March 2006

2006-03-10T17:19:48Z

New page

Court as effecting an implicit repeal
of all former gathering rights as
well. 40/
These facts present strong evidence
that the Hawaiian Government did not
represent only the native Hawaiians
41/ and was not the "single landowning
entity," since enactment of this
legislation had the effect of
terminating the native Hawaiians'
right of use and occupancy (the
essence of aboriginal title) of most
of the Government and Crown lands. In
addition, it was provided by statute
that any Hawaiians using Government
land without Government authorization
could be prosecuted for trespass. 42/
Yet if the Hawaiian Government had
been the "single landowning entity,"
native Hawaiians would, of necessity,
have had a right to use and occupy
Government lands without any
authorization, and therefore should
have been specified as exempt from
application of this statute. Finally,
native tenants who had long occupied
lands deemed to belong to the
Government (that is, lands that had
never been awarded to anyone by the
Board of Land Commissioners) were held
to have neither title to nor the right
of possession of these lands, but, in
effect, were only trespassers thereon.
43/ If the Hawaiian Government had
been the "single landowning entity"
for aboriginal title purposes, these
native tenants would not have been
considered trespassers. 44/
The same commenter who states that
the Hawaiian Government and the native
Hawaiians were one and the same entity
for aboriginal title purposes, also
expresses the view that the native
Hawaiians were "citizens of an
aboriginal nation with internal and
external attributes of sovereignty."
45/ The juxtaposition of these views
presents a conceptual problem. The
legal fiction of aboriginal title was
created to meet the need of various
European sovereigns, who claimed fee
title to the lands of North America
(and later the United States as the
successor sovereign), to acknowledge
the possession of much of these lands
by various Indian tribes. 46/ Thus,
when an Indian tribe holds aboriginal
title to certain lands this means that
the tribe has a right of use and
occupancy of such lands, while the
sovereign (an entity separate and
distinct from the members of the tribe
viewed as a group or the tribal
government) holds the fee title to
said lands. Accordingly, if these two
views are correct and the Hawaiian
Government was, in fact,
simultaneously both the single
landowning entity and the sovereign,
then such a state of facts is
diametrically opposed to the concept
of aboriginal title, which rests upon
the existence of two separate entities
(the native group that is the single
landowning entity and the sovereign).
The second test for aboriginal
title is that the single landowning
entity had actual and exclusive use
and occupancy of the specified lands
(here, the Government and Crown lands)
for a long time before title was
extinguished. 47/ Actual and
exclusive use and occupancy for a long
time prior to 1893 or 1898 48/ and
continuing up to 1893 or 1898—the
alleged dates of extinguishment
49/—must be established by clear and
definite proof. 50/ Because such a
large portion of the Crown and
Government lands was patented or sold
to individuals (either native
Hawaiians or foreigners) or leased to
foreigners by 1893, actual and
exclusive use for a long time up to
that date cannot easily be shown.
Courts require that occupancy be
actual and not "merely asserted." 51/
Moreover, in making a determination as
to the area that was actually and
exclusively used and occupied, the
courts will take into account a loss
of population of the landowning entity
prior to the alleged date of
extinguishment of aboriginal title.
52/ Between 1853 and 1896 the number
of native Hawaiians dropped from
70,036 to 31,019. 53/ Even before
1893, therefore, the trend was a
337

@@ Line 1: / Line 1: @@
 Court as effecting an implicit repeal
 of all former gathering rights as
-well. 40/
+well. <u>40</u>/
 These facts present strong evidence
 that the Hawaiian Government did not
 represent only the native Hawaiians
-/ and was not the "single landowning
+<u>41</u>/ and was not the "single landowning
 entity," since enactment of this
 legislation had the effect of
@@ Line 15: / Line 16: @@
 that any Hawaiians using Government
 land without Government authorization
-could be prosecuted for trespass. 42/
+could be prosecuted for trespass. <u>42</u>/
 Yet if the Hawaiian Government had
 been the "single landowning entity,"
@@ Line 32: / Line 33: @@
 of possession of these lands, but, in
 effect, were only trespassers thereon.
-/ If the Hawaiian Government had
+<u>43</u>/ If the Hawaiian Government had
 been the "single landowning entity"
 for aboriginal title purposes, these
 native tenants would not have been
-considered trespassers. 44/
+considered trespassers. <u>44</u>/
 The same commenter who states that
 the Hawaiian Government and the native
@@ Line 45: / Line 47: @@
 aboriginal nation with internal and
 external attributes of sovereignty."
-/ The juxtaposition of these views
+<u>45</u>/ The juxtaposition of these views
 presents a conceptual problem. The
 legal fiction of aboriginal title was
@@ Line 54: / Line 56: @@
 successor sovereign), to acknowledge
 the possession of much of these lands
-by various Indian tribes. 46/ Thus,
+by various Indian tribes. <u>46</u>/ Thus,
 when an Indian tribe holds aboriginal
 title to certain lands this means that
@@ Line 66: / Line 68: @@
 views are correct and the Hawaiian
 Government was, in fact,
-simultaneously both the single
+simultaneously <u>both</u> the single
 landowning entity and the sovereign,
 then such a state of facts is
 diametrically opposed to the concept
 of aboriginal title, which rests upon
-the existence of two separate entities
+the existence of two <u>separate</u> entities
 (the native group that is the single
 landowning entity and the sovereign).
 The second test for aboriginal
 title is that the single landowning
@@ Line 80: / Line 83: @@
 (here, the Government and Crown lands)
 for a long time before title was
-extinguished. 47/ Actual and
+extinguished. <u>47</u>/ Actual and
 exclusive use and occupancy for a long
-time prior to 1893 or 1898 48/ and
+time prior to 1893 or 1898 <u>48</u>/ and
 continuing up to 1893 or 1898—the
 alleged dates of extinguishment
-/—must be established by clear and
+<u>49</u>/—must be established by clear and
-definite proof. 50/ Because such a
+definite proof. <u>50</u>/ Because such a
 large portion of the Crown and
 Government lands was patented or sold
@@ Line 95: / Line 98: @@
 that date cannot easily be shown.
 Courts require that occupancy be
-actual and not "merely asserted." 51/
+actual and not "merely asserted." <u>51</u>/
 Moreover, in making a determination as
 to the area that was actually and
@@ Line 103: / Line 106: @@
 prior to the alleged date of
 extinguishment of aboriginal title.
-/ Between 1853 and 1896 the number
+<u>52</u>/ Between 1853 and 1896 the number
 of native Hawaiians dropped from
-,036 to 31,019. 53/ Even before
+,036 to 31,019. <u>53</u>/ Even before
 , therefore, the trend was a
+{{p|337}}

Template:Nhsc-v1-337 - Revision history

Reid Ginoza at 02:53, 6 May 2006

Reid Ginoza at 17:19, 10 March 2006