Jennifer Wada at 09:35, 7 May 2006

2006-05-07T09:35:09Z

Reid Ginoza at 20:58, 10 March 2006

2006-03-10T20:58:21Z

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tenants to grow crops and pasture
animals on Crown and Government lands.
In addition, this statute was held to
have effected an implicit repeal of
all former gathering rights. This
statute evidences an absence of
collective rights in the Government
and Crown lands.
57/ OHA's Comments, p. 25.
58/ Ibid., p. 24.
59/ United States v. Santa Fe
Pacific Railroad Co., 314 U.S. 339,
347 (1941). OHA c i t e s Mashpee Tribe
v. New Seabury Corp., 592 F.2d 575
(1st Cir. 1979) with respect to
abandonment of aboriginal t i t l e.
However, this case concerned
"abandonment" by the claimant of i ts
t r i b a l status and not abandonment of
aboriginal t i t l e (592 F.2d at
586-587).
60/ C£. Williams v. City of
Chicago, 242 U.S. 434, 437-438 (1917);
and Buttz v. Northern Pacific
Railroad, 119 U.S. 55, 69-70 (1886).
OHA also s t a t e s : "Under
t r a d i t i o n a l principles of Indian law,
forcible dispossession by non-natives
[ r e f e r r i n g to the landing of American
troops on January 17, 1893], is not
voluntary abandonment and does not
extinguish aboriginal t i t l e " (OHA's
Comments, pp. 24-25). Temporary
f o r c i b l e disposession of an Indian
t r i b e from i t s aboriginal t i t l e lands
by the sovereign had been found to
effect an extinguishment of t i t le
(Northern Paiute Nation, et a l . v.
United S t a t e s , 7 Ind.Cl.Comm. 615,
616 (1959), a f f ' d , 183 Ct.Cl. 321
(1968)), but, as a general rule,
temporary forcible dispossession does
not operate to extinguish aboriginal
t i t l e where there is no evidence of a
Congressional intention to extinguish
t i t l e (United States v. Santa Fe
Pacific Railroad Co., 314 U.S. 339,
354-356 (1941)). Here, where the
Federal Government was not the
sovereign before 1898, the rule cited
by OHA has no a p p l i c a b i l i t y.
6jy Levy, p. 857.
62/ One theory advanced in the
comments received by the Commission is
t h a t leasing of Government and Crown
lands is an example of "permissive
use" of aboriginal t i t l e lands that
did not effect an extinguishment of
aboriginal t i t l e (see Senator Inouye's
Comments, pp. 37-39).
The doctrine of "permissive use"
refers to use of an Indian t r i b e ' s (or
band's) aboriginal t i t l e lands by
another Indian t r i b e or band; this use
is s p e c i f i c a l l y allowed by the tribe
or band holding aboriginal t i t le
(Samish Tribe v. United States, 6
Ind.Cl.Comm. 159, 175 (1958);
S'Klallam Tribe v. United S t a t e s , 5
Ind.Cl.Comm. 680, 704 (1957)). The
fact that non-native Hawaiians were
allowed to use the Government and
Crown lands is not evidence chat the
native Hawaiians held aboriginal
t i t l e to these lands. C_f_. Confederated
Tribes of the Umatilla Indian
Reservation v. United States, 14
Ind.Cl.Comm. 14, 119 (1964).
"Permissive use" presumes the
existence of aboriginal t i t l e (14
Ind.Cl.Comm. at 119). Furthermore,
the use of Crown and Government lands
was authorized by the Hawaiian
Government—the sovereign—and not by
the native Hawaiians.
63/ United States v. Santa Fe
P a c i f i c Railroad Co., 314 U.S. 339,
347 (1941); and Pillager Bands of
Chippewa Indians v. United States, 192
Ct.Cl. 698, 705 (1970).
64/ United States v. Santa Fe
Pacific Railroad Co., 314 U.S.,339,
347 (1941); Washoe Indian Tribe v.
United S t a t e s , 21 Ind.Cl.Comm. 447,
448 (1969); and cf. United States v.
Northern Paiute Nation, 203 Ct.Cl.
468, 474-475 (1974).
65/ Cowlitz Tribe v. United
S t a t e s , 25 Ind.Cl.Comm. 442, 451
(1971), aff'd, 199 Ct.Cl. 523 (1972);
T l i n g i t and Haida Indians v. United
S t a t e s , 147 Ct.Cl. 315, 33.6-341

Template:Nhsc-v1-356 - Revision history

Jennifer Wada at 09:35, 7 May 2006

Reid Ginoza at 20:58, 10 March 2006