Reid Ginoza at 05:17, 13 May 2006

2006-05-13T05:17:34Z

Reid Ginoza at 22:45, 10 March 2006

2006-03-10T22:45:10Z

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barred (Act of December 16, 1892,
Session Laws, Ch. 68 (2 Revised Laws
(1925) at 2151-2152)).
113/ Kahoomana v. Moehonua, 3 Haw.
635, 639 (1875); and Kenoa v. Meek, 6
Haw. 63, 67 (1872). This was true
also before the Great Mahele (see
Thurston v. Bishop, 7 Haw. 421, 438
(1888)).
This does not mean that title was
vested in the native Hawaiians because
the Hawaiian Government and native
Hawaiians were not one and the same
entity (see discussion above,
p. 341).
114/ In the Matter of the Estate
of His Majesty Kamehameha IV, 2 Haw.
715 (1864).
115/ 2 Haw. 715 (1864).
116/ Liliuokalani v. United
States, 45 Ct.Cl. 418, 427-428
(1910).
117/ 45 Ct.Cl. at 427-428.
118/ See Hanifin, pp. 12-13.
Article 95 of the 1894 Constitution
expressly provided that the former
Crown lands were Government lands (see
Thurston, p. 237).
119/ OHA's Comments, Alternate
Chapter III, p. 12.
120/ OHA asserts under its
comments on aboriginal title that
after the Mahele the Hawaiian Kingdom
held title to the Government and Crown
lands "for the benefit of the chiefs
and people" (OHA's Comments, p. 23).
OHA also alleges that the Crown and
Government lands were held in trust
(OHA's Comments, pp. 4-5). This
theory suffers from serious defects.
A trust could have first arisen only
under the provisions of the 1840
Constitution (upon which OHA relies)
since, as a general rule, a fiduciary
relationship arises only under the
provisions of a treaty, statute or
agreement (e.g., United States v.
Mitchell, 445 U.S. 535, 542-546
(1980)). Even assuming that the 1840
Constitution did establish a trust,
the repeal of the 1840 Constitution by
the 1852 Constitution terminated the
trust. Moreover, Article 91 of the
1894 Constitution (Lorrin A. Thurston,
The Fundamental Law of Hawaii, 2 35
(1904) specifically abrogated "all
other [i.e., former] Constitutions" of
Hawaii.
OHA states that the Great Mahele
"continued" this trust concept because
the lands conveyed to the Hawaiian
Government were to be set "apart
'forever to the chiefs and people of
my Kingdom'" (OHA's Comments, pp.
4-5). However, this language did not
apply to the Crown lands (see Levy, p.
855). Accordingly, the Great Mahele
clearly established no trust with
respect to the Crown lands (e ,.,
United States v. Mitchell, supra).
OHA contends that since the Crown
lands eventually became Government
lands, the provisions of the Great
Mahele with respect to Government
lands (i.e., that they be set 'apart
forever to the chiefs and people of my
Kingdom') automatically applied to the
former Crown lands (OHA's Comments, p.
5). However, Article 95 of the 1894
Constitution (pursuant to which the
former Crown lands became Government
lands) specifically declared that the
Crown lands were to be "...free and
clear from any trust of or concerning
the same..." [Emphasis supplied]
(Thurston, p. 237). Although this
language was primarily intended to
terminate any trust in favor of
Liliuokalani with respect to these
lands (45 Ct.Cl. at 428-429), it is
sufficiently broad so as to have
barred the automatic creation of any
new trust (in favor of the native
Hawaiians) with respect to the Crown
lands. Moreover, if OHA's
interpretation of the provisions of
the Great Mahele with regard to the
Government lands is correct (i.e.,
that they automatically imposed a
trust on the former Crown lands), then
the provisions of Article 95 and the
Act of June 7, 1848 (which'adopted the
362

@@ Line 14: / Line 14: @@
 entity (see discussion above,
 p. 341).
 / In the Matter of the Estate
-of His Majesty Kamehameha IV, 2 Haw.
+<u>114</u>/ <u>In the Matter of the Estate of His Majesty Kamehameha IV</u>, 2 Haw.
 (1864).
 / 2 Haw. 715 (1864).
-/ Liliuokalani v. United
+<u>115</u>/ 2 Haw. 715 (1864).
 States, 45 Ct.Cl. 418, 427-428
 (1910).
 / 45 Ct.Cl. at 427-428.
-/ See Hanifin, pp. 12-13.
+<u>117</u>/ 45 Ct.Cl. at 427-428.
 Article 95 of the 1894 Constitution
 expressly provided that the former
 Crown lands were Government lands (see
 Thurston, p. 237).
 / OHA's Comments, Alternate
 Chapter III, p. 12.
 / OHA asserts under its
 comments on aboriginal title that
 after the Mahele the Hawaiian Kingdom
@@ Line 45: / Line 50: @@
 relationship arises only under the
 provisions of a treaty, statute or
-agreement (e.g., United States v.
+agreement (e.g., <u>United States</u> v.
-Mitchell, 445 U.S. 535, 542-546
+<u>Mitchell</u>, 445 U.S. 535, 542-546
 (1980)). Even assuming that the 1840
 Constitution did establish a trust,
@@ Line 53: / Line 58: @@
 trust. Moreover, Article 91 of the
 Constitution (Lorrin A. Thurston,
-The Fundamental Law of Hawaii, 2 35
+<u>The Fundamental Law of Hawaii</u>, 2 35
 (1904) specifically abrogated "all
 other [i.e., former] Constitutions" of
 Hawaii.
 OHA states that the Great Mahele
 "continued" this trust concept because
@@ Line 67: / Line 73: @@
 ). Accordingly, the Great Mahele
 clearly established no trust with
-respect to the Crown lands (e ,.,
+respect to the <u>Crown lands</u> (e.g.
-United States v. Mitchell, supra).
+<u>United States</u> v. <u>Mitchell</u>, <u>supra</u>).
 OHA contends that since the Crown
 lands eventually became Government
@@ Line 82: / Line 88: @@
 lands) specifically declared that the
 Crown lands were to be "...free and
-clear from any trust of or concerning
+clear from <u>any trust</u> of or concerning
 the same..." [Emphasis supplied]
 (Thurston, p. 237). Although this
@@ Line 100: / Line 106: @@
 trust on the former Crown lands), then
 the provisions of Article 95 and the
-Act of June 7, 1848 (which'adopted the
+Act of June 7, 1848 (which adopted the
+{{p|362}}

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Reid Ginoza at 05:17, 13 May 2006

Reid Ginoza at 22:45, 10 March 2006