Reid Ginoza at 03:23, 6 May 2006

2006-05-06T03:23:16Z

Reid Ginoza at 17:42, 10 March 2006

2006-03-10T17:42:46Z

New page

compensated, claims under that Act had
to be filed by 1951. Therefore, under
present law, no authority is available
under which compensation can be
sought. 76/
In conclusion, the native Hawaiians
do not meet the above three tests for
establishing aboriginal title to lands
in Hawaii, including the Crown and
Government lands designated by the
Great Mahele. Further, even if
aboriginal title were established, it
was extinguished by acts of the
Hawaiian Government prior to 1898,
when the United States, through
annexation, became the sovereign.
Therefore, the native Hawaiians are
not entitled to compensation for such
extinguishment by the United States
under existing law. Finally, even if
the United States had extinguished
aboriginal title, no present law
provides for compensation for that
loss.
C. RECOGNIZED TITLE AND COMPENSATION
The second legal principle under
which the United States may compensate
for loss of land is if the United
States has "recognized"--acknowledged
by its laws--the title of the native
group to the land. 77/ Again,
specific legal requirements to
establish that the United States has
recognized title must be met.
"Recognized" title, in federal law,
occurs when Congress has granted an
Indian tribe the "riqht to occupy and
use" certain lands permanently. ^78/
"Recoonized" title means the grant to
an Indian tribe of "rights in land
which were in addition to the Indians'
traditional use and occupancy rights
exercised only with the permission of
the sovereign..." 79/ This section of
the chapter analyzes those requirements
in light of native Hawaiian
history.
First, recognized title must come
from the United States Congress. 80/
Before 1898, the Hawaiian Islands were
not part of the territory of the
United States. Therefore, Congress
had no jurisdiction over the native
Hawaiians, unlike the Indian tribes.
81/ The United States could not,
then, have granted recognized title to
the Government and Crown lands prior
to the time when the United States
exercised sovereignty over the
Hawaiian Islands.
Because only Congress can accord
recognized title, the Hawaiian king's
setting aside of about 1.5 million
acres of Government lands to "the
chiefs and the people of my Kingdom,"
and the approval of this action by the
Hawaiian legislature by the Act of
June 7, 1848, cannot be a grant of
recognized title. 8_2/
Similarly, because Congress can
grant recognized title only when it
can exercise sovereignty, such title
could not be established by the United
States through various treaties and
agreements before 1898. 83/
Therefore, an unratified treaty
between the United States and the
Hawaiian Kingdom negotiated in 1826,
an 1849 treaty (relating to
friendship, commerce, and navigation),
and the 1875 Reciprocity Treaty
(concerning trade) cannot constitute
recognition by the United States of
the title of the native Hawaiians to
the Government and Crown lands. 84/
Further, an unratified treaty cannot
possibly be the source of recognized
title. 85/ A treaty of peace and
friendship does not constitute a grant
of recognized title even though it may
acknowledge that the particular tribe
or band is living in a certain area.
86/ Moreover, these treaties were not
made with the native Hawaiians, but
with the Hawaiian Government. 87/
The native Hawaiians claim that
they held recognized title to the
Government and Crown lands. Comments
received by the Commission in support
of this claim make a two-part
argument. Part one consists of
several assertions. First, it is
asserted that the Hawaiian Government
held recognized title to the Crown and
Government lands because a formal
title to these lands was "confirmed in
the native government by the Mahele
and subsequent actions." 88/ In
340

@@ Line 3: / Line 3: @@
 present law, no authority is available
 under which compensation can be
-sought. 76/
+sought. <u>76</u>/
 In conclusion, the native Hawaiians
 do not meet the above three tests for
@@ Line 23: / Line 24: @@
 provides for compensation for that
 loss.
 C. RECOGNIZED TITLE AND COMPENSATION
 The second legal principle under
 which the United States may compensate
@@ Line 29: / Line 32: @@
 States has "recognized"--acknowledged
 by its laws--the title of the native
-group to the land. 77/ Again,
+group to the land. <u>77</u>/ Again,
 specific legal requirements to
 establish that the United States has
@@ Line 36: / Line 39: @@
 occurs when Congress has granted an
 Indian tribe the "riqht to occupy and
-use" certain lands permanently. ^78/
+use" certain lands permanently. <u>78</u>/
 "Recoonized" title means the grant to
 an Indian tribe of "rights in land
-which were in addition to the Indians'
+which were <u>in addition to the Indians'
-traditional use and occupancy rights
+traditional use and occupancy rights</u>
 exercised only with the permission of
-the sovereign..." 79/ This section of
+the sovereign..." <u>79</u>/ This section of
 the chapter analyzes those requirements
 in light of native Hawaiian
 history.
 First, recognized title must come
-from the United States Congress. 80/
+from the United States Congress. <u>80</u>/
 Before 1898, the Hawaiian Islands were
 not part of the territory of the
@@ Line 53: / Line 57: @@
 had no jurisdiction over the native
 Hawaiians, unlike the Indian tribes.
-/ The United States could not,
+<u>81</u>/ The United States could not,
 then, have granted recognized title to
 the Government and Crown lands prior
@@ Line 59: / Line 63: @@
 exercised sovereignty over the
 Hawaiian Islands.
 Because only Congress can accord
 recognized title, the Hawaiian king's
@@ Line 67: / Line 72: @@
 Hawaiian legislature by the Act of
 June 7, 1848, cannot be a grant of
-recognized title. 8_2/
+recognized title. <u>82</u>/
 Similarly, because Congress can
 grant recognized title only when it
@@ Line 73: / Line 79: @@
 could not be established by the United
 States through various treaties and
-agreements before 1898. 83/
+agreements before 1898. <u>83</u>/
 Therefore, an unratified treaty
 between the United States and the
@@ Line 83: / Line 89: @@
 recognition by the United States of
 the title of the native Hawaiians to
-the Government and Crown lands. 84/
+the Government and Crown lands. <u>84</u>/
 Further, an unratified treaty cannot
 possibly be the source of recognized
-title. 85/ A treaty of peace and
+title. <u>85</u>/ A treaty of peace and
 friendship does not constitute a grant
 of recognized title even though it may
 acknowledge that the particular tribe
 or band is living in a certain area.
-/ Moreover, these treaties were not
+<u>86</u>/ Moreover, these treaties were not
 made with the native Hawaiians, but
-with the Hawaiian Government. 87/
+with the Hawaiian Government. <u>87</u>/
 The native Hawaiians claim that
 they held recognized title to the
@@ Line 106: / Line 113: @@
 title to these lands was "confirmed in
 the native government by the Mahele
-and subsequent actions." 88/ In
+and subsequent actions." <u>88</u>/ In
+{{p|340}}

Template:Nhsc-v1-340 - Revision history

Reid Ginoza at 03:23, 6 May 2006

Reid Ginoza at 17:42, 10 March 2006