Template:Nhsc-v1-345 - Revision history

Reid Ginoza: OCR Spelling Correction

2006-05-07T01:41:19Z

OCR Spelling Correction

Reid Ginoza at 04:07, 6 May 2006

2006-05-06T04:07:26Z

Reid Ginoza at 20:53, 10 March 2006

2006-03-10T20:53:14Z

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Hawaiians. 151/ Accordingly, the
native Hawaiians did not have a
"vested" interest in the Government
and Crown lands under pre-annexation
Hawaiian law.
If recognized title is not
established, no compensation is due
under the Fifth Amendment. 152/ Even
if the native Hawaiians had been
accorded recognized title by some
action of the United States Congress,
they cannot be compensated for the
loss of that title. Any actions of
the United States before 1898 cannot
constitute a compensable claim under
the Fifth Amendment for a "taking" of
the Government and Crown lands without
compensation, because the United
States did not have sovereignty over
the Hawaiian Islands prior to 1898.
153/ Annexation itself was not a
taking under the requirements of the
Fifth Amendment because it was not an
appropriation of the Crown and
Government lands for use by the
Federal Government, pursuant to a
Congressional authorization. 154/
Section 91 of the Organic Act of 1900
confirms this fact by pr< viding that
the "public property" (Crown and
Government lands) ceded to the United
States under the Joint Resolution of
Annexation:
...shall be and remain in the
possession, use and control of
the government of the Territory
of Hawaii, and shall be
maintained, managed and cared
for by it, at its own expense,
until otherwise provided by
Congress, or taken for the uses
and purposes of the United States
by direction of the President or
of the governor of Hawaii. 155/
Those provisions [Sections 73
and 91] did not create a mere
agency on the part of the
Territory to act for the Federal
Government. They constitute a
delegation of legislative power
from Congress to the Territory.
Conveyances made pursuant to the
power are not conveyances of the
United States of America
executed by the territorial
officers as agents, but they are
conveyances of and by the
Territory in its own right
pursuant to the Acts of
Congress. This follows from the
fact that the Territory has
complete possession and control
of the public lands with the
power to dispose of them. 156/
Therefore, the native Hawaiians would
not be entitled to Fifth Amendment
compensation for loss of recognized
title, if it were established. 157/
In sum, Congress must grant
recognized title, not the government
of Hawaii. Moreover, the United
States could not have granted such
recognized title before 1898 because
it did not have sovereignty over the
Hawaiian Islands. The actions it took
in and after 1898—particularly
annexation and passage of the Organic
Act of 1900—did not create recognized
title, because they did not grant the
native Hawaiians the right to use and
occupy the Government and Crown lands
permanently. Even if recognized title
were established, under the facts of
the Hawaiian experience, loss of that
title would not be compensable under
either the Fifth Amendment to the ,
United States Constitution or under
the Indian Claims Commission Act.
Under present law, therefore, the
native Hawaiians have no legal right
to compensation for loss of their
land.
Section 91 (in conjunction with
Section 73, which authorized the
Territory of Hawaii to sell, exchange,
and lease the public lands) has been
interpreted as follows:
345

@@ Line 28: / Line 28: @@
 Congressional authorization. <u>154</u>/
 Section 91 of the Organic Act of 1900
-confirms this fact by pr< viding that
+confirms this fact by providing that
 the "public property" (Crown and
 Government lands) ceded to the United

@@ Line 1: / Line 1: @@
-Hawaiians. 151/ Accordingly, the
+Hawaiians. <u>151</u>/ Accordingly, the
 native Hawaiians did not have a
 "vested" interest in the Government
 and Crown lands under pre-annexation
 Hawaiian law.
 If recognized title is not
 established, no compensation is due
-under the Fifth Amendment. 152/ Even
+under the Fifth Amendment. <u>152</u>/ Even
 if the native Hawaiians had been
 accorded recognized title by some
@@ Line 19: / Line 20: @@
 States did not have sovereignty over
 the Hawaiian Islands prior to 1898.
-/ Annexation itself was not a
+<u>153</u>/ Annexation itself was not a
 taking under the requirements of the
 Fifth Amendment because it was not an
@@ Line 25: / Line 26: @@
 Government lands for use by the
 Federal Government, pursuant to a
-Congressional authorization. 154/
+Congressional authorization. <u>154</u>/
 Section 91 of the Organic Act of 1900
 confirms this fact by pr< viding that
@@ Line 32: / Line 33: @@
 States under the Joint Resolution of
 Annexation:
 ...shall be and remain in the
-possession, use and control of
+: ...shall be and remain in the possession, use and control of the government of the Territory of Hawaii, and shall be maintained, managed and cared for by it, at its own expense, until otherwise provided by Congress, <u>or taken for the uses and purposes of the United States</u> by direction of the President or of the governor of Hawaii. <u>155</u>/
 the government of the Territory
-of Hawaii, and shall be
+Section 91 (in conjunction with Section 73, which authorized the Territory of Hawaii to sell, exchange, and lease the public lands) has been imposed as follows:
 maintained, managed and cared
-for by it, at its own expense,
+: <u>Those provisions</u> [Sections 73 and 91] <u>did not create a mere agency on the part of the Territory to act for the Federal Government</u>. They constitute a delegation of legislative power from Congress to the Territory. Conveyances made pursuant to the power are not conveyances of the United States of America executed by the territorial officers as agents, but <u>they are conveyances of and by the Territory in its own right</u> pursuant to the Acts of Congress. This follows from the fact that the Territory has complete possession and control of the public lands with the power to dispose of them. <u>156</u>/
 until otherwise provided by
 Therefore, the native Hawaiians would
 not be entitled to Fifth Amendment
 compensation for loss of recognized
-title, if it were established. 157/
+title, if it were established. <u>157</u>/
 In sum, Congress must grant
 recognized title, not the government
@@ Line 91: / Line 69: @@
 to compensation for loss of their
 land.
-Section 91 (in conjunction with
+{{p|345}}