Reid Ginoza at 04:03, 6 May 2006

2006-05-06T04:03:02Z

Reid Ginoza at 20:52, 10 March 2006

2006-03-10T20:52:42Z

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provision is similar to a clause in
Alaska's Organic Act, which at Section
8 provides, in part:
...That the Indians or other
persons in said district shall
not be disturbed in the
possession of any lands actually
in their use or occupation or
now claimed by them but the
terms under which such persons
may acquire title to such lands
is reserved for future
legislation by Congress ... 136/
The Supreme Court has held that this
provision of the Alaska Organic Act
did not indicate "any intention by
Congress to grant to the Indians
permanent rights in the lands of
Alaska occupied by them by permission
of Congress." 137/ Rather, the Alaska
Organic Act was designed "merely to
retain the status quo until further
congressional or judicial action was
taken." 138/ The Hawaiian Organic Act
must be similarly considered not to
grant a permanent right of use and
occupancy in Crown and Government
lands to native Hawaiians. Further,
uniike the Alaska Act, the Hawaii Act
does not refer to natives. 139/
Some comments received by the
Commission assert as a sort of
corollary in support of the recognized
title claim that the United States has
followed a consistent policy of
respecting "...property rights of
native people recognized under prior
governments. Congress and the courts
have long respected grants to native
peoples under the laws of another
sovereign." 140/
It is an established principle of
international law that private
property rights in territory ceded by
one nation to another are not affected
by the change of sovereign and are
entitled to protection. 141/ This
rule would apply if the claimed
property of native Hawaiians was
considered as having been segregated
from the public domain of the prior
sovereign before the annexation of
Hawaii. 142/ It is necessary to
examine the law of the prior sovereigr
before the cession (that is, Hawaiian
law) in order to determine whether th<
claimed property was regarded as
having been separated from the public
domain of the prior sovereign. 143/
Government lands that were not
awarded by the Board of Land
Commissioners (or by the Minister of
the Interior) were considered to
belong to the Hawaiian Government.
144/ The Crown lands became
Government lands in 1893 after the
monarchy ceased to exist. 145/ Lands
that belonged to the Hawaiian
Government were considered as
comprising the "public domair." 146/
Since title to the Government lands
was in the Hawaiian Government, it
follows that the Government (and
former Crown) lands were part of the
public domain. 147/ Thus, the rule of
international law invoked is not
applicable to the Crown and Government
lands. Even the claimed property
rights of native groups are not
protected by this rule in those
instances where the property in
question was not considered as having
been separated from the public domain
of the prior sovereign. 148/
Moreover, the test traditionally
used to determine whether the cited
rule of international law is
applicable to a claimed private
property right is whether said right
constituted a "vested" interest under
the law of the prior sovereiqn before
the cession of territory in question.
149/ Prior to annexation, the
Constitution of 1840 was not construed
as operating to create a vested
private interest in the Government and
Crown lands. Furthermore, the
Constitution of 1840 was repealed by
the 1852 Constitution. 150/ Nor was
the Great Mahele interpreted as
granting a vested private interest in
the subject lands to the native
344

@@ Line 2: / Line 2: @@
 Alaska's Organic Act, which at Section
 provides, in part:
-...That the Indians or other
+: ...That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress...<u>136</u>/
 persons in said district shall
 The Supreme Court has held that this
 provision of the Alaska Organic Act
@@ Line 18: / Line 10: @@
 permanent rights in the lands of
 Alaska occupied by them by permission
-of Congress." 137/ Rather, the Alaska
+of Congress." <u>137</u>/ Rather, the Alaska
 Organic Act was designed "merely to
-retain the status quo until further
+retain the <u>status quo</u> until further
 congressional or judicial action was
-taken." 138/ The Hawaiian Organic Act
+taken." <u>138</u>/ The Hawaiian Organic Act
 must be similarly considered not to
 grant a permanent right of use and
@@ Line 28: / Line 20: @@
 lands to native Hawaiians. Further,
 uniike the Alaska Act, the Hawaii Act
-does not refer to natives. 139/
+does not refer to natives. <u>139</u>/
 Some comments received by the
 Commission assert as a sort of
@@ Line 39: / Line 32: @@
 have long respected grants to native
 peoples under the laws of another
-sovereign." 140/
+sovereign." <U>140</u>/
 It is an established principle of
 international law that private
@@ Line 45: / Line 39: @@
 one nation to another are not affected
 by the change of sovereign and are
-entitled to protection. 141/ This
+entitled to protection. <U>141</u>/ This
 rule would apply if the claimed
 property of native Hawaiians was
@@ Line 51: / Line 45: @@
 from the public domain of the prior
 sovereign before the annexation of
-Hawaii. 142/ It is necessary to
+Hawaii. <u>142</u>/ It is necessary to
 examine the law of the prior sovereigr
 before the cession (that is, Hawaiian
@@ Line 57: / Line 51: @@
 claimed property was regarded as
 having been separated from the public
-domain of the prior sovereign. 143/
+domain of the prior sovereign. <u>143</u>/
 Government lands that were not
 awarded by the Board of Land
@@ Line 63: / Line 58: @@
 the Interior) were considered to
 belong to the Hawaiian Government.
-/ The Crown lands became
+<u>144</u>/ The Crown lands became
 Government lands in 1893 after the
-monarchy ceased to exist. 145/ Lands
+monarchy ceased to exist. <u>145</u>/ Lands
 that belonged to the Hawaiian
 Government were considered as
-comprising the "public domair." 146/
+comprising the "public domair." <u>146</u>/
 Since title to the Government lands
 was in the Hawaiian Government, it
 follows that the Government (and
 former Crown) lands were part of the
-public domain. 147/ Thus, the rule of
+public domain. <U>147</u>/ Thus, the rule of
 international law invoked is not
 applicable to the Crown and Government
@@ Line 82: / Line 77: @@
 question was not considered as having
 been separated from the public domain
-of the prior sovereign. 148/
+of the prior sovereign. <u>148</u>/
 Moreover, the test traditionally
 used to determine whether the cited
@@ Line 91: / Line 87: @@
 the law of the prior sovereiqn before
 the cession of territory in question.
-/ Prior to annexation, the
+<u>149</u>/ Prior to annexation, the
 Constitution of 1840 was not construed
 as operating to create a vested
@@ Line 97: / Line 93: @@
 Crown lands. Furthermore, the
 Constitution of 1840 was repealed by
-the 1852 Constitution. 150/ Nor was
+the 1852 Constitution. <U>150</u>/ Nor was
 the Great Mahele interpreted as
 granting a vested private interest in
 the subject lands to the native
+{{p|344}}

Template:Nhsc-v1-344 - Revision history

Reid Ginoza at 04:03, 6 May 2006

Reid Ginoza at 20:52, 10 March 2006