Template:Nhsc-v1-341 - Revision history

Reid Ginoza at 03:52, 6 May 2006

2006-05-06T03:52:15Z

Reid Ginoza at 03:40, 6 May 2006

2006-05-06T03:40:15Z

Reid Ginoza at 20:51, 10 March 2006

2006-03-10T20:51:39Z

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addition, it is asserted that there is
no distinction to be made between the
native Hawaiian* and the Hawaiian
Government and that they were one and
the name, insofar as holding
recognized t i t l e to the Crown and
Government lands is concerned. 89/
Thus, it is alleged, in effect, that
the Mahele operated to vest t i t l e to
the Government and Crown lands in the
native Hawaiians. 90/
Part two of the recognized t i t le
argument is that the United States
recognized and acknowledged the right*
of the Hawaiian Government to i t s own
lands: "...the United States by
recognizinq the sovereignty and domain
of the Hawaiian Kingdom, also
recognized the legitimacy of that
government's t i t l e to i t s own lands."
91/
The essential premise of the
recoqnized t i t l e claim is that the
native Hawaiians and the Hawaiian
Government are the same entity, rather
than separate e n t i t i e s . However,
Hawaiian law does not support the
"same entity" theory, as the following
considerations i l l u s t r a t e . First, the
Hawaiian Government was viewed as an
entity distinct from any natural
persons. 92/ Second, in 1851, the
Hawaiian legislature passed a statute
providing for the appointment of
agents to "sell Government lands to
the people." 93/ Specifically, the
statute provided for the sale of
Government lands to the "natives."
If, as OHA asserts, native Hawaiians
and the Hawaiian Government were one
and the same entity insofar as holdinq
t i t l e to the Crown and Government
lands was concerned, then there would
have been no need for this statute,
since the natives would already have
been owners of the Government
lands--supposedly by the operation of
the Great Mahele. 94/ Third, native
tenants who had lonq occupied what
were deemed to be Government lands
(but which had never been awarded to
them or anyone else by the Board of
Land Cossaissioners) were held to have
neither t i t l e to nor the right of
possession of these Lands but were, in
e f f e c t , aere trespassers. 95/ This
holding cannot be reconciled with the
theory that the Hawaiian Government
and the native Hawaiians were one and
the ease) entity, insofar as holding
recognized t i t l e to the Crown and
Government lands was concerned. 96/
Plnally, when the owner of a kuleana
(a n a t iw tenant) died without heirs,
t i t l e to the land did not revert to
the Government, but to the owner of
the ahupue'a or i l i in which the
kuleana was located. 97/
The second premise underlying the
recognized t i t l e claim (after the
"sane entity" theory) is that the 1840
Constitution and/or the Great Mahele
of 1848 operated, in effect, to vest
t i t l e to the Government and Crown
lands in the native Hawaiians. 98/
The validity of this premise must be
determined by reference to Hawaiian
law.
The thrust of the Constitution of
1340 was that the chiefs and people
had rights to land. 99/ However, as
of 1845, the chiefs and people had
" . . . o n l y a qualified right of
possession to lands. They had no
t i t l e s to them." 100/ Pursuant to the
Act of Deceaber 10, 1845 (which
established the Board of Land
Commissioners), 101/ King Kamehameha
III "...relinquished his claim of
ownership as sovereign to over
two-thirds of the entire territory of
the Kingdom, in order that the game
might be awarded to the chiefs and
common people by the Land Commission."
102/ Until this act was passed the
t i t l e to land was in the king himself.
103/ Thus, the Act of December 10,
1845 "...paved the way for th«e chiefs
and people to obtain t i t l e to the
lands occupied by them respectively--
something they theretofore did no*.
have." 104/ Accordingly, the 1840
Constitution did not operate so a3 V.
vest t i t l e to the Government &r.i Crv«r.
341

@@ Line 82: / Line 82: @@
 The thrust of the Constitution of
 was that the chiefs and people
-had rights to land. 99/ However, as
+had rights to land. <u>99</u>/ However, as
 of 1845, the chiefs and people had
 "...only a qualified right of
 possession to lands. They had no
-titles to them." 100/ Pursuant to the
+titles to them." <u>100</u>/ Pursuant to the
 Act of Deceaber 10, 1845 (which
 established the Board of Land
-Commissioners), 101/ King Kamehameha
+Commissioners), <u>101</u>/ King Kamehameha
 III "...relinquished his claim of
 ownership as sovereign to over
@@ Line 96: / Line 96: @@
 might be awarded to the chiefs and
 common people by the Land Commission."
-/ Until this act was passed the
+<u>102</u>/ Until this act was passed the
-t i t l e to land was in the king himself.
+title to land was in the king himself.
-/ Thus, the Act of December 10,
+<u>103</u>/ Thus, the Act of December 10,
-"...paved the way for th«e chiefs
+"...paved the way for the chiefs
-and people to obtain t i t l e to the
+and people to obtain title to the
 lands occupied by them respectively--
-something they theretofore did no*.
+something they theretofore did not
-have." 104/ Accordingly, the 1840
+have." <u>104</u>/ Accordingly, the 1840
-Constitution did not operate so a3 V.
+Constitution did not operate so as to
-vest t i t l e to the Government &r.i Crv«r.
+vest title to the Government and Crown
+{{p|341}}

@@ Line 1: / Line 1: @@
 addition, it is asserted that there is
 no distinction to be made between the
-native Hawaiian* and the Hawaiian
+native Hawaiians and the Hawaiian
 Government and that they were one and
 the name, insofar as holding
-recognized t i t l e to the Crown and
+recognized title to the Crown and
-Government lands is concerned. 89/
+Government lands is concerned. <u>89</u>/
 Thus, it is alleged, in effect, that
-the Mahele operated to vest t i t l e to
+the Mahele operated to vest title to
 the Government and Crown lands in the
-native Hawaiians. 90/
+native Hawaiians. <u>90</u>/
-Part two of the recognized t i t le
 argument is that the United States
-recognized and acknowledged the right*
+recognized and acknowledged the rights
-of the Hawaiian Government to i t s own
+of the Hawaiian Government to its own
 lands: "...the United States by
 recognizinq the sovereignty and domain
 of the Hawaiian Kingdom, also
 recognized the legitimacy of that
-government's t i t l e to i t s own lands."
+government's title to its own lands."
-/
+<u>91</u>/
 The essential premise of the
-recoqnized t i t l e claim is that the
+recognized title claim is that the
 native Hawaiians and the Hawaiian
 Government are the same entity, rather
-than separate e n t i t i e s . However,
+than separate entities. However,
 Hawaiian law does not support the
 "same entity" theory, as the following
-considerations i l l u s t r a t e . First, the
+considerations illustrate. First, the
 Hawaiian Government was viewed as an
 entity distinct from any natural
-persons. 92/ Second, in 1851, the
+persons. <u>92</u>/ Second, in 1851, the
 Hawaiian legislature passed a statute
 providing for the appointment of
 agents to "sell Government lands to
-the people." 93/ Specifically, the
+the people." <u>93</u>/ Specifically, the
-statute provided for the sale of
+statute provided for the <u>sale of Government lands</u> to the "natives."
 If, as OHA asserts, native Hawaiians
 and the Hawaiian Government were one
-and the same entity insofar as holdinq
+and the same entity insofar as holding
-t i t l e to the Crown and Government
+title to the Crown and Government
 lands was concerned, then there would
 have been no need for this statute,
@@ Line 46: / Line 47: @@
 been owners of the Government
 lands--supposedly by the operation of
-the Great Mahele. 94/ Third, native
+the Great Mahele. <u>94</u>/ Third, native
-tenants who had lonq occupied what
+tenants who had long occupied what
 were deemed to be Government lands
 (but which had never been awarded to
 them or anyone else by the Board of
 Land Cossaissioners) were held to have
-neither t i t l e to nor the right of
+neither title to nor the right of
 possession of these Lands but were, in
-e f f e c t , aere trespassers. 95/ This
+effect, mere trespassers. <u>95</u>/ This
 holding cannot be reconciled with the
 theory that the Hawaiian Government
 and the native Hawaiians were one and
 the ease) entity, insofar as holding
-recognized t i t l e to the Crown and
+recognized title to the Crown and
-Government lands was concerned. 96/
+Government lands was concerned. <u>96</u>/
-Plnally, when the owner of a kuleana
+Finally, when the owner of a <u>kuleana</u>
-(a n a t iw tenant) died without heirs,
+(a native tenant) died without heirs,
-t i t l e to the land did not revert to
+title to the land did not revert to
 the Government, but to the owner of
-the ahupue'a or i l i in which the
+the <u>ahupua'a</u> or <u>ili</u> in which the
-kuleana was located. 97/
+<u>kuleana</u> was located. <u>97</u>/
 The second premise underlying the
-recognized t i t l e claim (after the
+recognized title claim (after the
 "sane entity" theory) is that the 1840
 Constitution and/or the Great Mahele
 of 1848 operated, in effect, to vest
-t i t l e to the Government and Crown
+title to the Government and Crown
-lands in the native Hawaiians. 98/
+lands in the native Hawaiians. <u>98</u>/
 The validity of this premise must be
 determined by reference to Hawaiian
 law.
 The thrust of the Constitution of
 was that the chiefs and people
 had rights to land. 99/ However, as
 of 1845, the chiefs and people had
-" . . . o n l y a qualified right of
+"...only a qualified right of
 possession to lands. They had no
-t i t l e s to them." 100/ Pursuant to the
+titles to them." 100/ Pursuant to the
 Act of Deceaber 10, 1845 (which
 established the Board of Land