Template:Nhsc-v1-364 - Revision history

Jennifer Wada at 08:13, 28 May 2006

2006-05-28T08:13:53Z

Reid Ginoza at 06:03, 13 May 2006

2006-05-13T06:03:19Z

Reid Ginoza at 22:46, 10 March 2006

2006-03-10T22:46:01Z

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(1976)). Yet neither the landmark
decision in Thurston v. Bishop, 7 Haw.
421 (1888) (interpreting the 1840
Constitution) nor the other decisions
discussed previously (interpreting the
Great Mahele) hold that the native
Hawaiians held a "beneficial" title to
the Government and Crown lands. This
is especially significant in light of
the fact that the Hawaiian law of
trusts expressly recognized the
concept of "beneficial" title to land
(Kanoelehua v. Cartwright, 7 Haw. 327,
329-330 (1888); £f_. Montgomery v.
Montgomery, 2 Haw. 563, 569 (1862)).
Presumably, if the Hawaiian Supreme
Court had believed that the native
Hawaiians had a beneficial title, it
would have so held.
Finally, native Hawaiians do not
point to any suits prior to annexation
alleging a violation of some fiduciary
duty of the Government with respect to
the Government and/or Crown lands.
Yet there is no doubt that up to 1892
such a suit could have been filed in
the Hawaiian Supreme Court (which had
original equity jurisdiction until
1892) and, thereafter, in the First
Circuit Court (In re Bishop's Estate,
11 Haw. 33 (1897)).
121/ OHA's Comments, p. 26. As
noted, this argument assumes that the
native Hawaiians and the Hawaiian
Government are one and the same
entity.
122/ MacKenzie, pp. 83-85.
123/ Sac and Fox Tribe of Indians
of Oklahoma v. United States, 161 Ct.
CI. 189, 192, 197 (1963), cert.
denied, 375 U.S. 921 (1963).
124/ Tee-Hit-Ton Indians v. United
S t a t e s , 348 U.S. 272, 278-279 (1955).
This analogy is apt since the Hawaiian
Government and native Hawaiians are
alleged to be one and the same e n t i t y.
This has nothing to do with the
doctrine of "permissive use."
125/ 348 U.S. at 278-279. In such
a s i t u a t i o n there is an absence of a
" d e f i n i t e intention by congressional
action or authority to accord legal
r i g h t s . "
126/ Sac and Fox Tribe of Indians
of Oklahoma v. United S t a t e s , 161
Ct.Cl. 189, 192-193 (1963), c e r t.
denied, 375 U.S. 921 (1963); and
Northwestern Band of Shoshone Indians
v. United S t a t e s , 95 Ct.Cl. 642,
657-661, 681-684 (1942).
127/ Coos Bay, Lower Umqua, and
Siuslaw Indian Tribes v. United
S t a t e s , 87 Ct. CI. 143, 153 (1938),
c e r t , denied, 306 U.S. 653 (1939).
128/ This paragraph t r e a t s the
native Hawaiians as an e n t i t y separate
from the Hawaiian Government. See
United States v. Mowat, 582 F 2d 1194,
1206 (9th Cir. 1978), c e r t , aenied 439
U.S. 967 (1978) which implies that
the native Hawaiians had no recognized
t i t l e to the Crown and Government
lands.
129/ After annexation there existed
only one e n t i t y whose t i t l e to the
Government and Crown lands could, in
theory, have been recognized—namely,
the native Hawaiians as a group.
130/ See Joint Resolution No. 55 of
July 7, 1898, 30 S t a t . 750, which
provides, in pertinent part:
The e x i s t i n g laws of the United
States r e l a t i v e to public lands
s h a l l not apply to such lands
[the ceded lands] in the Hawaiian
Islands; but the Congress shall
enact special laws for their
management and disposition:
Provided, That a l l revenue from
or proceeds of the same...[with
c e r t a i n exceptions] shall be used
s o l e l y for the benefit of the
inhabitants of the Hawaiian
Islands for educational and other
public purposes.
Treaties of cession do not generally
e s t a b l i s h recognized t i t l e to ceded

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	establish recognized title to ceded		establish recognized title to ceded

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@@ Line 1: / Line 1: @@
 (1976)). Yet neither the landmark
-decision in Thurston v. Bishop, 7 Haw.
+decision in <u>Thurston</u> v. <u>Bishop</u>, 7 Haw.
 (1888) (interpreting the 1840
 Constitution) nor the other decisions
@@ Line 11: / Line 11: @@
 trusts expressly recognized the
 concept of "beneficial" title to land
-(Kanoelehua v. Cartwright, 7 Haw. 327,
+(<u>Kanoelehua</u> v. <u>Cartwright</u>, 7 Haw. 327,
 -330 (1888); £f_. Montgomery v.
 Montgomery, 2 Haw. 563, 569 (1862)).
@@ Line 18: / Line 18: @@
 Hawaiians had a beneficial title, it
 would have so held.
 Finally, native Hawaiians do not
 point to any suits prior to annexation
@@ Line 28: / Line 29: @@
 original equity jurisdiction until
 ) and, thereafter, in the First
-Circuit Court (In re Bishop's Estate,
+Circuit Court (<u>In re Bishop's Estate</u>,
 Haw. 33 (1897)).
 / OHA's Comments, p. 26. As
 noted, this argument assumes that the
 native Hawaiians and the Hawaiian
 Government are one and the same
 entity.
 / MacKenzie, pp. 83-85.
-/ Sac and Fox Tribe of Indians
+<u>122</u>/ MacKenzie, pp. 83-85.
 of Oklahoma v. United States, 161 Ct.
-CI. 189, 192, 197 (1963), cert.
+<u>123</u>/ <u>Sac and Fox Tribe of Indians of Oklahoma</u> v. <u>United States</u>, 161 Ct.
 denied, 375 U.S. 921 (1963).
 / Tee-Hit-Ton Indians v. United
-S t a t e s , 348 U.S. 272, 278-279 (1955).
+<u>124</u>/ Tee-Hit-Ton Indians v. United
 This analogy is apt since the Hawaiian
 Government and native Hawaiians are
-alleged to be one and the same e n t i t y.
+alleged to be one and the same entity.
 This has nothing to do with the
 doctrine of "permissive use."
 / 348 U.S. at 278-279. In such
-a s i t u a t i o n there is an absence of a
+<u>125</u>/ 348 U.S. at 278-279. In such a situation there is an absence of a
-" d e f i n i t e intention by congressional
+"definite intention by congressional
 action or authority to accord legal
-r i g h t s . "
+rights."
 / Sac and Fox Tribe of Indians
-of Oklahoma v. United S t a t e s , 161
+<u>126</u>/ <u>Sac and Fox Tribe of Indians of Oklahoma</u> v. <u>United States</u>, 161
-Ct.Cl. 189, 192-193 (1963), c e r t.
+Ct.Cl. 189, 192-193 (1963), <u>cert</u>.
-denied, 375 U.S. 921 (1963); and
+<u>denied</u>, 375 U.S. 921 (1963); and
-Northwestern Band of Shoshone Indians
+<u>Northwestern Band of Shoshone Indians</u>
-v. United S t a t e s , 95 Ct.Cl. 642,
+v. <u>United States</u>, 95 Ct.Cl. 642,
 -661, 681-684 (1942).
 / Coos Bay, Lower Umqua, and
-Siuslaw Indian Tribes v. United
+<u>127</u>/ <u>Coos Bay, Lower Umqua, and Siuslaw Indian Tribes</u> v. <u>United States</u>, 87 Ct. CI. 143, 153 (1938),
-S t a t e s , 87 Ct. CI. 143, 153 (1938),
+<u>cert</u>. <u>denied</u>, 306 U.S. 653 (1939).
-c e r t , denied, 306 U.S. 653 (1939).
-/ This paragraph t r e a t s the
+<u>128</u>/ This paragraph treats the
-native Hawaiians as an e n t i t y separate
+native Hawaiians as an entity separate
 from the Hawaiian Government. See
-United States v. Mowat, 582 F 2d 1194,
+<u>United States</u> v. <u>Mowat</u>, 582 F 2d 1194,
-(9th Cir. 1978), c e r t , aenied 439
+(9th Cir. 1978), <u>cert</u>. <u>denied</u> 439
 U.S. 967 (1978) which implies that
 the native Hawaiians had no recognized
-t i t l e to the Crown and Government
+title to the Crown and Government
 lands.
 / After annexation there existed
-only one e n t i t y whose t i t l e to the
+<u>129</u>/ After annexation there existed
 Government and Crown lands could, in
 theory, have been recognized—namely,
 the native Hawaiians as a group.
 / See Joint Resolution No. 55 of
-July 7, 1898, 30 S t a t . 750, which
+<u>130</u>/ See Joint Resolution No. 55 of
 provides, in pertinent part:
-The e x i s t i n g laws of the United
-States r e l a t i v e to public lands
+: The existing laws of the United States relative to public lands shall not apply to such lands [the ceded lands] in the Hawaiian Islands; but the Congress shall enact special laws for their management and disposition: <u>Provided</u>, That all revenue from or proceeds of the same...[with certain exceptions] shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.
-s h a l l not apply to such lands
 Treaties of cession do not generally
-e s t a b l i s h recognized t i t l e to ceded
+establish recognized title to ceded