Reid Ginoza at 03:03, 6 May 2006

2006-05-06T03:03:27Z

Reid Ginoza at 17:20, 10 March 2006

2006-03-10T17:20:06Z

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dramatic decline. Moreover, since the
native Hawaiians did not have a
nomadic culture, actual and exclusive
use and occupancy of the extensive
area of Crown and Government lands is
even more difficult to establish. 54/
The final test for aboriginal title
is that the use and occupancy must
have continued for a long time before
being extinguished. Prior to the
Great Mahele, given the system of
occupancy by chiefs, rather than by
the people in common, 55/ it is
doubtful if common use and occupancy
by all native Hawaiians existed.
Between the time of the Great Mahele
in 1848 and 1893, much of the
Government and Crown land was
converted to fee simple ownership by
non-natives and natives, and much of
this land was used by non-natives.
Thus, it does not appear that common
use and occupancy of the Crown and
Government lands by all native
Hawaiians existed between 1848 and
1898. 56/
It cannot be established,
therefore, that the native Hawaiians
meet the above three tests for showing
the existence of aboriginal title.
Did the United States Extinguish
Whatever Aboriginal Title Existed?
The assertion was made in a comment
received by the Commission that
aboriginal title to the Crown and
Government lands still existed in 1898
and was extinguished by the United
States by means of the Joint
Resolution of Annexation. 57/ This
comment rests in large part on the
premise that during the period between
the establishment of the Provisional
Government in 1893 and 1898 aboriginal
title was not extinguished, "...since
only voluntary abandonment of these
lands by native Hawaiians would divest
native Hawaiians of aboriginal title."
58/ The statement that the aboriginal
title of the native Hawaiians could
only be
extinguished by voluntary abandonment
assumes that the Hawaiian Government
was the single landowning entity for
purposes of holding aboriginal title.
Under traditional principles of Indiar
law, aboriginal title can be
extinguished by voluntary abandonment
or by actions of the sovereign that
are inconsistent with the existence of
aboriginal title. 59/ If the
Hawaiian Government was not the single
landowning entity, then the Hawaiian
Government as sovereign (that is, as
an entity separate from the native
Hawaiians) took actions that were
inconsistent with the existence of
aboriginal title and that extinguished
said title. If the Hawaiian
Government was the single landowning
entity, then these same actions, in
effect, constituted a voluntary
abandonment of aboriginal title. 60/
The facts of land ownership in
Hawaii underscore that even if the
tests for aboriginal title had been
met, such title was extinguished by
actions of the Hawaiian Government
before 1893 (that is, actions of the
sovereign that were inconsistent with
aboriginal title) and certainly before
annexation, which is the first time
the United States assumed sovereignty.
The Kuleana Act of 1850 terminated the
right of pasturage and the right of
commoners to grow crops on unoccupied
lands of the ahupua'a. 61/ Other
Hawaiian legislative acts had the
effect of allowing foreigners to
purchase Government lands. By 1893,
over 600,000 acres of Government land
had been sold to foreigners
(non-natives) and 752,431 acres of
Government and Crown lands had been
leased to foreigners. 62/ By thus
having "asserted and exerted full
dominion" over Crown and Government
lands, the government of Hawaii (which
as sovereign had the authority to
extinguish aboriginal title) had taken
actions specifically inconsistent with
the continued existence of aboriginal
title. 63/ Legislation enacted by the
3 38

@@ Line 4: / Line 4: @@
 use and occupancy of the extensive
 area of Crown and Government lands is
-even more difficult to establish. 54/
+even more difficult to establish. <u>54</u>/
 The final test for aboriginal title
 is that the use and occupancy must
@@ Line 11: / Line 12: @@
 Great Mahele, given the system of
 occupancy by chiefs, rather than by
-the people in common, 55/ it is
+the people in common, <u>55</u>/ it is
 doubtful if common use and occupancy
 by all native Hawaiians existed.
@@ Line 24: / Line 25: @@
 Government lands by all native
 Hawaiians existed between 1848 and
-. 56/
+. <u>56</u>/
 It cannot be established,
 therefore, that the native Hawaiians
 meet the above three tests for showing
 the existence of aboriginal title.
 Did the United States Extinguish
-Whatever Aboriginal Title Existed?
+====Did the United States Extinguish Whatever Aboriginal Title Existed?====
 The assertion was made in a comment
 received by the Commission that
@@ Line 37: / Line 40: @@
 and was extinguished by the United
 States by means of the Joint
-Resolution of Annexation. 57/ This
+Resolution of Annexation. <u>57</u>/ This
 comment rests in large part on the
 premise that during the period between
@@ Line 46: / Line 49: @@
 lands by native Hawaiians would divest
 native Hawaiians of aboriginal title."
-/ The statement that the aboriginal
+<u>58</u>/ The statement that the aboriginal
 title of the native Hawaiians could
-only be
+only be extinguished by voluntary abandonment
 assumes that the Hawaiian Government
 was the single landowning entity for
 purposes of holding aboriginal title.
-Under traditional principles of Indiar
+Under traditional principles of Indian
 law, aboriginal title can be
 extinguished by voluntary abandonment
 or by actions of the sovereign that
 are inconsistent with the existence of
-aboriginal title. 59/ If the
+aboriginal title. <u>59</u>/ If the
 Hawaiian Government was not the single
 landowning entity, then the Hawaiian
@@ Line 70: / Line 72: @@
 entity, then these same actions, in
 effect, constituted a voluntary
-abandonment of aboriginal title. 60/
+abandonment of aboriginal title. <u>60</u>/
 The facts of land ownership in
 Hawaii underscore that even if the
@@ Line 81: / Line 84: @@
 annexation, which is the first time
 the United States assumed sovereignty.
-The Kuleana Act of 1850 terminated the
+The <u>Kuleana</u> Act of 1850 terminated the
 right of pasturage and the right of
 commoners to grow crops on unoccupied
-lands of the ahupua'a. 61/ Other
+lands of the <u>ahupua'a</u>. <u>61</u>/ Other
 Hawaiian legislative acts had the
 effect of allowing foreigners to
@@ Line 92: / Line 95: @@
 (non-natives) and 752,431 acres of
 Government and Crown lands had been
-leased to foreigners. 62/ By thus
+leased to foreigners. <u>62</u>/ By thus
 having "asserted and exerted full
 dominion" over Crown and Government
@@ Line 100: / Line 103: @@
 actions specifically inconsistent with
 the continued existence of aboriginal
-title. 63/ Legislation enacted by the
+title. <u>63</u>/ Legislation enacted by the
-38
+{{p|338}}

Template:Nhsc-v1-338 - Revision history

Reid Ginoza at 03:03, 6 May 2006

Reid Ginoza at 17:20, 10 March 2006