Reid Ginoza at 03:06, 6 May 2006

2006-05-06T03:06:38Z

Reid Ginoza at 17:42, 10 March 2006

2006-03-10T17:42:29Z

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sovereign can effect an extinguishment
of aboriginal title. 64/ Settlement
and/or use of aboriginal title lands
by non-natives that is authorized by
the sovereign—here the government of
Hawaii—operates to extinguish
aboriginal title. 65/
In sum/ termination of the native
Hawaiians' right to grow crops and
right to pasturage on the unoccupied
lands of ahupua'a (pursuant to the
Kuleana Act of 1850), the purchase of
Government lands by natives and
foreigners (authorized by various acts
passed by the Hawaiian legislature),
and the statutes authorizing
foreigners to lease Crown and
Government lands (together with the
actual leasing of 752,431 acres of
3aid lands by foreigners), taken
toqether, served to effectuate an
extinguishment of aboriginal title, if
any had existed, to the Crown and
Government lands. Therefore, if
native Hawaiians had had any
aboriginal title to the Crown and
Government lands, that title was
extinguished by the actions of the
government of Hawaii before 1893.
Similarly, if the Hawaiian Government
was the single landowning entity and
"represented" the native Hawaiians,
66/ then these very same actions
constituted a relinquishment, in
effect, of. the native Hawaiians'
right of use and occupancy of the
Government and Crown lands (that is,
abandonment of aboriginal title) prior
to 1893. 67/
Importantly, "aboriginal title
rights extinguished prior to the
inception of United States sovereignty
are not compensable claims against the
United States." 68/ Comments received
by the Commission suggest that even if
the native Hawaiians were deprived of
aboriginal title in 1893 by actions of
the Provisional Government (or by the
establishment thereof) the United
States would, nonetheless, be liable
under applicable Indian law. 69/ Such
liability is premised on decisions
under the Indian Claims Commission Act
holding the United States liable for
the removal of minerals by third
parties from aboriginal title lands
prior to the date of extinguishment
of aboriginal title. 70/ However, in
all of the cited cases the aboriginal
title lands in question had become
part of the territory of the United
States (and thus the United States had
sovereignty over these lands) prior to
the actions of the third parties. 71/
Any actions of the Provisional
Government in 1893 (or the
establishment thereof in 1893)
occurred prior to the inception of the
United States' sovereignty over the
Hawaiian Islands. Furthermore, the
historical evidence shows that
aboriginal title, if my had existed,
was extinguished before 1893—that is,
before the Provisional Government came
into existence. 72/ In light of the
foregoing, any United States'
participation in the fall of the
Hawaiian monarchy does not constitute
an extinguishment of aboriginal title
for which the United States is
liable.
Right of Compensation for Loss of
Aboriginal Title
Even if the native Hawaiians had
had aboriginal title to the Crown and
Government lands, and that title had
been extinguished by the United States
(tests that are not met), compensation
for the loss of these lands would not
be available under current law. The
Fifth Amendment to the United States
Constitution provides that the United
States cannot take land without just
compensation. Aboriginal title is not
a vested property right, but instead
only a right of occupancy, which the
sovereign may terminate at any time
without payment of compensation. 73/
Therefore, courts have held that its
loss does not entitle the loser to
compensation under the Fifth
Amendment. 74/
Extinguishment of aboriginal title
is compensable under Section 2 of the
Indian Claims Commission Act (25
U.S.C. § 70a). 75/ However, to be
339

@@ Line 1: / Line 1: @@
 sovereign can effect an extinguishment
-of aboriginal title. 64/ Settlement
+of aboriginal title. <u>64</u>/ Settlement
 and/or use of aboriginal title lands
 by non-natives that is authorized by
 the sovereign—here the government of
 Hawaii—operates to extinguish
-aboriginal title. 65/
+aboriginal title. <u>65</u>/
-In sum/ termination of the native
 Hawaiians' right to grow crops and
 right to pasturage on the unoccupied
-lands of ahupua'a (pursuant to the
+lands of <u>ahupua'a</u> (pursuant to the
-Kuleana Act of 1850), the purchase of
+<u>Kuleana</u> Act of 1850), the purchase of
 Government lands by natives and
 foreigners (authorized by various acts
@@ Line 18: / Line 19: @@
 Government lands (together with the
 actual leasing of 752,431 acres of
-aid lands by foreigners), taken
+said lands by foreigners), taken
 toqether, served to effectuate an
 extinguishment of aboriginal title, if
@@ Line 31: / Line 32: @@
 was the single landowning entity and
 "represented" the native Hawaiians,
-/ then these very same actions
+<u>66</u>/ then these very same actions
 constituted a relinquishment, in
 effect, of. the native Hawaiians'
@@ Line 37: / Line 38: @@
 Government and Crown lands (that is,
 abandonment of aboriginal title) prior
-to 1893. 67/
+to 1893. <u>67</u>/
 Importantly, "aboriginal title
 rights extinguished prior to the
 inception of United States sovereignty
 are not compensable claims against the
-United States." 68/ Comments received
+United States." <u>68</u>/ Comments received
 by the Commission suggest that even if
 the native Hawaiians were deprived of
@@ Line 49: / Line 51: @@
 establishment thereof) the United
 States would, nonetheless, be liable
-under applicable Indian law. 69/ Such
+under applicable Indian law. <u>69</u>/ Such
 liability is premised on decisions
 under the Indian Claims Commission Act
@@ Line 56: / Line 58: @@
 parties from aboriginal title lands
 prior to the date of extinguishment
-of aboriginal title. 70/ However, in
+of aboriginal title. <u>70</u>/ However, in
 all of the cited cases the aboriginal
 title lands in question had become
@@ Line 62: / Line 64: @@
 States (and thus the United States had
 sovereignty over these lands) prior to
-the actions of the third parties. 71/
+the actions of the third parties. <u>71</u>/
 Any actions of the Provisional
 Government in 1893 (or the
@@ Line 73: / Line 75: @@
 was extinguished before 1893—that is,
 before the Provisional Government came
-into existence. 72/ In light of the
+into existence. <u>72</u>/ In light of the
 foregoing, any United States'
 participation in the fall of the
@@ Line 80: / Line 82: @@
 for which the United States is
 liable.
 Right of Compensation for Loss of
-Aboriginal Title
+====Right of Compensation for Loss of Aboriginal Title====
 Even if the native Hawaiians had
 had aboriginal title to the Crown and
@@ Line 96: / Line 98: @@
 only a right of occupancy, which the
 sovereign may terminate at any time
-without payment of compensation. 73/
+without payment of compensation. <u>73</u>/
 Therefore, courts have held that its
 loss does not entitle the loser to
 compensation under the Fifth
-Amendment. 74/
+Amendment. <u>74</u>/
 Extinguishment of aboriginal title
 is compensable under Section 2 of the
 Indian Claims Commission Act (25
-U.S.C. § 70a). 75/ However, to be
+U.S.C. § 70a). <u>75</u>/ However, to be
+{{p|339}}

Template:Nhsc-v1-339 - Revision history

Reid Ginoza at 03:06, 6 May 2006

Reid Ginoza at 17:42, 10 March 2006