Reid Ginoza at 03:56, 6 May 2006

2006-05-06T03:56:49Z

Reid Ginoza at 20:51, 10 March 2006

2006-03-10T20:51:59Z

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lands in the native Hawaiians.
Furthermore, the provision of the
1840 Constitution entitled "Exposition
of the Principles on Which the Present
Dynasty is Founded" (which states that
all land "belonged to the chiefs and
people in common") is not found in the
subsequent 1852 Constitution. 105/ As
a general rule, "the adoption of a new
constitution repeals and supersedes
all the provisions of the older
[former) constitution not continued in
force by the new instrument." 106/
Indeed, a provision in a constitution
that is not contained in subsequent
constitutions does not remain in
effect. 107/ After 1852, only the
1852 Constitution was in effect. 108/
With respect to the legal impact of a
new constitution, the Hawaiian Supreme
Court held in 1892 that when a new
constitution takes effect:
...it is a new departure in
the government of the country,
inasmuch as it states anew the
principles upon which the
government is to be administered,
and rearranges the
distributions and limitations of
sovereign powers. What is not
changed is re-affirmed. The new
statement of the fundamental law
takes the place of the old. 109/
The operative effect of the Great
Mahele of 1848 has been described as
follows:
The Mahele did not give title.
It did give the chiefs the
opportunity to take their
Maheles [divisions) to the Land
Commission and receive awards of
title thereon just as the common
people had presented to the
Commission their claims for
titles to their kuleana. Title
was derived from the awards.
That the common people were
not parties to a "division" is
shown by the fact that the
kuleana which were awarded to
them were regarded as being
carved out of or subtracted
from the ahupua'a and ili in
which they respectively were
situated.
[The Mahele has thus been
characterized as the)...process
of rearranging and distributing
the land among the claimants
who applied for title to it.
110/
There is no indication that the
Great Mahele has been construed as
having, in and of itself, vested any
title to the Government and Crown
lands in the native Hawaiians. 111/
Rather, with respect to the Government
lands, the only common interest
obtained by native Hawaiians, as a
group, by virtue of the Great Mahele
was a common right to present claims
for particular Government lands to the
Board of Land Commissioners (and later
the Minister of the Interior) in order
that the Board (or Minister) might
make awards of lands claimed. 112/
Indeed, even after the Great Mahele,
"Government" lands not awarded by the
Board of Land Commissioners (or the
Minister of the Interior) were
considered to belong to the
Government. 113/
With regard to the Crown lands, the
Great Mahele did not operate so as to
vest title thereto in the native
Hawaiians. Rather, title to the Crown
lands was in the king. 114/ Title to
these lands remained in the king 115/
(or in the office of the sovereign)
116/ until 1893 when the monarchy
ceased to exist, whereupon they became
Government lands. 117/ When the
former Crown lands became Government
lands, title to the former Crown lands
became vested in the Provisional
Government. 118/
In sum, native Hawaiians, as a
group, d.id not obtain a "formal,
vested title" 119/ to the Government
and Crown lands. Accordingly, the
basic premises of the recognized

@@ Line 1: / Line 1: @@
 lands in the native Hawaiians.
 Furthermore, the provision of the
 Constitution entitled "Exposition
@@ Line 6: / Line 7: @@
 all land "belonged to the chiefs and
 people in common") is not found in the
-subsequent 1852 Constitution. 105/ As
+subsequent 1852 Constitution. <u>105</u>/ As
 a general rule, "the adoption of a new
 constitution repeals and supersedes
 all the provisions of the older
 [former) constitution not continued in
-force by the new instrument." 106/
+force by the new instrument." <u>106</u>/
 Indeed, a provision in a constitution
 that is not contained in subsequent
 constitutions does not remain in
-effect. 107/ After 1852, only the
+effect. <U>107</u>/ After 1852, only the
-Constitution was in effect. 108/
+Constitution was in effect. <u>108</u>/
 With respect to the legal impact of a
 new constitution, the Hawaiian Supreme
 Court held in 1892 that when a new
 constitution takes effect:
 ...it is a new departure in
-the government of the country,
+: ...it is a new departure in the government of the country, inasmuch as it states anew the principles upon which the government is to be administered, and rearranges the distributions and limitations of sovereign powers. What is not changed is re-affirmed. <u>The new statement of the fundamental law takes the place of the old</u>. <u>109</u>/
 inasmuch as it states anew the
 The operative effect of the Great
 Mahele of 1848 has been described as
 follows:
-The Mahele did not give title.
+: The Mahele did not give title. It did give the chiefs the opportunity to take their Maheles [divisions] to the Land Commission and receive awards of title thereon just as the common people had presented to the Commission their claims for titles to their <u>kuleana</u>. Title was derived from the awards. That the common people were not parties to a "division" is shown by the fact that the <u>kuleana</u> which were awarded to them were regarded as being carved out of or subtracted from the <u>ahupua'a</u> and <u>ili</u> in which they respectively were situated.
 It did give the chiefs the
-opportunity to take their
+: [The Mahele has thus been characterized as the]...process of rearranging and distributing the land among the claimants who applied for title to it. <u>110</u>/
-Maheles [divisions) to the Land
 There is no indication that the
 Great Mahele has been construed as
 having, in and of itself, vested any
 title to the Government and Crown
-lands in the native Hawaiians. 111/
+lands in the native Hawaiians. <u>111</u>/
 Rather, with respect to the Government
 lands, the only common interest
@@ Line 74: / Line 46: @@
 the Minister of the Interior) in order
 that the Board (or Minister) might
-make awards of lands claimed. 112/
+make awards of lands claimed. <U>112</u>/
 Indeed, even after the Great Mahele,
 "Government" lands not awarded by the
@@ Line 80: / Line 52: @@
 Minister of the Interior) were
 considered to belong to the
-Government. 113/
+Government. <u>113</u>/
 With regard to the Crown lands, the
 Great Mahele did not operate so as to
 vest title thereto in the native
 Hawaiians. Rather, title to the Crown
-lands was in the king. 114/ Title to
+lands was in the king. <u>114</u>/ Title to
-these lands remained in the king 115/
+these lands remained in the king <u>115</u>/
 (or in the office of the sovereign)
-/ until 1893 when the monarchy
+<u>116</u>/ until 1893 when the monarchy
 ceased to exist, whereupon they became
-Government lands. 117/ When the
+Government lands. <u>117</u>/ When the
 former Crown lands became Government
 lands, title to the former Crown lands
 became vested in the Provisional
-Government. 118/
+Government. <u>118</u>/
 In sum, native Hawaiians, as a
-group, d.id not obtain a "formal,
+group, did not obtain a "formal,
-vested title" 119/ to the Government
+vested title" <u>119</u>/ to the Government
 and Crown lands. Accordingly, the
 basic premises of the recognized

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Reid Ginoza at 03:56, 6 May 2006

Reid Ginoza at 20:51, 10 March 2006