Reid Ginoza at 05:32, 13 May 2006

2006-05-13T05:32:48Z

Reid Ginoza at 22:45, 10 March 2006

2006-03-10T22:45:41Z

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provisions of the Great Mahele) could
be viewed as being inconsistent.
Since the 1894 Constitution was the
fundamental law of Hawaii in 1894, its
provisions took precedence over
inconsistent provisions of preexisting
statutes (see Article 91 of the 1894
Constitution (Thurston, p. 235); Ahlo
v. Smith 8 Haaw. 420, 423 (1892)).
The provisions of the Great Mahele
with respect to the Government lands
became effective when adopted by the
Act of June 7, 1848 (Hanifin, p. 28).
Even assuming, arguendo, that the
language of the 1848 Act was intended
to create a trust with respect to the
Government lands, the language of
subsequent statutes (which concerned
Government lands) is not consistent
with a trust theory. For example, the
Act of July 11, 1851 (1851) Hawaii
Laws 52 (2 Revised Laws (1925) at
2196-2197) and the Act of July 6, 1853
[1853] Hawaii Laws 55 (2 Revised Laws
(1925) at 2197) concerning the sale of
Government lands did not provide that
proceeds from the sale of Government
lands were to be paid over to the
native Hawaiians or deposited to their
credit in a separate account in the
Hawaiian Treasury (Compare c_f_. Ash
Sheep Company v. United States, 252
U.S. 159, 165-166 (1920); United
States v. Brindle, 110 U.S. 688, 693
(1884); and Colorado River Indian
Tribes, et'al. v. United States, 39
Ind.Cl.Comm. 42, 48-49 (1976)
involving cessions of tribal land to
the United States in trust which
provided that the land be sold for the
benefit of the tribe(s) making the
cession and that the sales proceeds be
paid over to the tribe(s) in question
and, in one instance, that there be a
semi-annual accounting of the sales
proceeds.) Nor did subsequent
statutes contain any provisions
requiring proceeds from sales of
Government land to be paid over to
native Hawaiians (or set aside for
them in the Treasury) or requiring
periodic accountings of these
receipts. In sum, the language of
these subsequent statutes was, in
effect, not consistent with the
language of the Act of June 7, 1848,
to the extent that the language of the
1848 Act may have been intended to
create a trust as to the Government
lands (Cf. Oni v. Meek, 2 Haw. 87
94-95 (1858) holding that a statute
effected an implicit repeal of a prior
inconsistent statute). Accordingly,
these subsequent statutes could be
viewed as effecting an implicit repeal
of the 1848 Act to the extent that
said Act may have imposed a trust on
the Government lands.
Furthermore, the failure of a
series of statutes to provide that
proceeds from sales of Government
lands be paid over to native Hawaiians
or that periodic accountings of the
sales receipts be rendered tends to
negate the existence of any trust
duties (compare cf_. Aleut Community of
St. Paul Island v. United States, 202
Ct. CI. 182, 196-198 (1973)).
Failure of the Hawaiian legislature to
so provide is significant in light of
the fact that the Hawaiian law of
trusts clearly recognized the duty of
a trustee not to comingle trust funds
with monies belonging to the trustee
(In re Neville's Estate, 4 Haw. 289,
290-291 (1880)) and the duty of a
trustee to account for receipts and
profits from trust property (Jarrett
v. Manini, 2 Haw. 667, 677 (1863)).
In addition, the Land Law of 1895
provided that proceeds from the sale
of public lands were to be set apart
as a "special fund for the payment of
the Bonded Indebtedness of the
Government or for the purchase of
other lands as provided by § 194"
(Civil Laws of the Hawaiian Islands,
Ch. 7, § 202 (1897)), rather than set
apart for the use and benefit of the
native Hawaiians or set apart to be
paid over to the native Hawaiians.
If the Government and Crown lands
had been held in trust, then the
native Hawaiians would have held some
title to these lands—namely a
"beneficial" title (e.g., Colorado
River Indian Tribes, et al. v. United
States, 39 Ind.Cl.Comm. 42, 49
363

@@ Line 6: / Line 6: @@
 inconsistent provisions of preexisting
 statutes (see Article 91 of the 1894
-Constitution (Thurston, p. 235); Ahlo
+Constitution (Thurston, p. 235); <u>Ahlo</u> v. <u>Smith</u> 8 Haaw. 420, 423 (1892)).
 v. Smith 8 Haaw. 420, 423 (1892)).
 The provisions of the Great Mahele
-with respect to the Government lands
+with respect to the <u>Government lands</u>
 became effective when adopted by the
 Act of June 7, 1848 (Hanifin, p. 28).
-Even assuming, arguendo, that the
+Even assuming, <u>arguendo</u>, that the
 language of the 1848 Act was intended
 to create a trust with respect to the
@@ Line 29: / Line 29: @@
 native Hawaiians or deposited to their
 credit in a separate account in the
-Hawaiian Treasury (Compare c_f_. Ash
+Hawaiian Treasury (Compare <u>cf</u>. <u>Ash Sheep Company</u> v. <u>United States</u>, 252
-Sheep Company v. United States, 252
+U.S. 159, 165-166 (1920); <u>United States</u> v. <u>Brindle</u>, 110 U.S. 688, 693
-U.S. 159, 165-166 (1920); United
+(1884); and <u>Colorado River Indian Tribes, et al.</u> v. <u>United States</u>, 39
 Ind.Cl.Comm. 42, 48-49 (1976)
 involving cessions of tribal land to
@@ Line 58: / Line 55: @@
 Act may have been intended to
 create a trust as to the Government
-lands (Cf. Oni v. Meek, 2 Haw. 87
+lands (<u>Cf</u>. <u>Oni</u> v. <u>Meek</u>, 2 Haw. 87
 -95 (1858) holding that a statute
 effected an implicit repeal of a prior
@@ Line 67: / Line 64: @@
 said Act may have imposed a trust on
 the Government lands.
 Furthermore, the failure of a
 series of statutes to provide that
@@ Line 74: / Line 72: @@
 sales receipts be rendered tends to
 negate the existence of any trust
-duties (compare cf_. Aleut Community of
+duties (compare <u>cf</u>. <u>Aleut Community of St. Paul Island</u> v. <u>United States</u>, 202
 Ct. CI. 182, 196-198 (1973)).
 Failure of the Hawaiian legislature to
@@ Line 83: / Line 80: @@
 a trustee not to comingle trust funds
 with monies belonging to the trustee
-(In re Neville's Estate, 4 Haw. 289,
+(<U>In re Neville's Estate</u>, 4 Haw. 289,
 -291 (1880)) and the duty of a
 trustee to account for receipts and
-profits from trust property (Jarrett
+profits from trust property (<u>Jarrett</u> v. <u>Manini</u>, 2 Haw. 667, 677 (1863)).
 In addition, the Land Law of 1895
 provided that proceeds from the sale
@@ Line 95: / Line 91: @@
 Government or for the purchase of
 other lands as provided by § 194"
-(Civil Laws of the Hawaiian Islands,
+(<u>Civil Laws of the Hawaiian Islands</u>,
 Ch. 7, § 202 (1897)), rather than set
 apart for the use and benefit of the
 native Hawaiians or set apart to be
 paid over to the native Hawaiians.
 If the Government and Crown lands
 had been held in trust, then the
-native Hawaiians would have held some
+native Hawaiians would have held <u>some title</u> to these lands—namely a
-title to these lands—namely a
+"beneficial" title (e.g., <u>Colorado River Indian Tribes, et al.</u> v. <u>United States</u>, 39 Ind.Cl.Comm. 42, 49
-"beneficial" title (e.g., Colorado
+{{p|363}}

Template:Nhsc-v1-363 - Revision history

Reid Ginoza at 05:32, 13 May 2006

Reid Ginoza at 22:45, 10 March 2006