Difference between revisions of "Template:Nhsc-v1-341"

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addition, it is asserted that there is
 
addition, it is asserted that there is
 
no distinction to be made between the
 
no distinction to be made between the
−
native Hawaiian* and the Hawaiian
+
native Hawaiians and the Hawaiian
 
Government and that they were one and
 
Government and that they were one and
 
the name, insofar as holding
 
the name, insofar as holding
−
recognized t i t l e to the Crown and
+
recognized title to the Crown and
−
Government lands is concerned. 89/
+
Government lands is concerned. <u>89</u>/
 
Thus, it is alleged, in effect, that
 
Thus, it is alleged, in effect, that
−
the Mahele operated to vest t i t l e to
+
the Mahele operated to vest title to
 
the Government and Crown lands in the
 
the Government and Crown lands in the
−
native Hawaiians. 90/
+
native Hawaiians. <u>90</u>/
−
Part two of the recognized t i t le
+
 
 +
Part two of the recognized title
 
argument is that the United States
 
argument is that the United States
−
recognized and acknowledged the right*
+
recognized and acknowledged the rights
−
of the Hawaiian Government to i t s own
+
of the Hawaiian Government to its own
 
lands: "...the United States by
 
lands: "...the United States by
 
recognizinq the sovereignty and domain
 
recognizinq the sovereignty and domain
 
of the Hawaiian Kingdom, also
 
of the Hawaiian Kingdom, also
 
recognized the legitimacy of that
 
recognized the legitimacy of that
−
government's t i t l e to i t s own lands."
+
government's title to its own lands."
−
91/
+
<u>91</u>/
 +
 
 
The essential premise of the
 
The essential premise of the
−
recoqnized t i t l e claim is that the
+
recognized title claim is that the
 
native Hawaiians and the Hawaiian
 
native Hawaiians and the Hawaiian
 
Government are the same entity, rather
 
Government are the same entity, rather
−
than separate e n t i t i e s . However,
+
than separate entities. However,
 
Hawaiian law does not support the
 
Hawaiian law does not support the
 
"same entity" theory, as the following
 
"same entity" theory, as the following
−
considerations i l l u s t r a t e . First, the
+
considerations illustrate. First, the
 
Hawaiian Government was viewed as an
 
Hawaiian Government was viewed as an
 
entity distinct from any natural
 
entity distinct from any natural
−
persons. 92/ Second, in 1851, the
+
persons. <u>92</u>/ Second, in 1851, the
 
Hawaiian legislature passed a statute
 
Hawaiian legislature passed a statute
 
providing for the appointment of
 
providing for the appointment of
 
agents to "sell Government lands to
 
agents to "sell Government lands to
−
the people." 93/ Specifically, the
+
the people." <u>93</u>/ Specifically, the
−
statute provided for the sale of
+
statute provided for the <u>sale of Government lands</u> to the "natives."
−
Government lands to the "natives."
 
 
If, as OHA asserts, native Hawaiians
 
If, as OHA asserts, native Hawaiians
 
and the Hawaiian Government were one
 
and the Hawaiian Government were one
−
and the same entity insofar as holdinq
+
and the same entity insofar as holding
−
t i t l e to the Crown and Government
+
title to the Crown and Government
 
lands was concerned, then there would
 
lands was concerned, then there would
 
have been no need for this statute,
 
have been no need for this statute,
Line 46: Line 47:
 
been owners of the Government
 
been owners of the Government
 
lands--supposedly by the operation of
 
lands--supposedly by the operation of
−
the Great Mahele. 94/ Third, native
+
the Great Mahele. <u>94</u>/ Third, native
−
tenants who had lonq occupied what
+
tenants who had long occupied what
 
were deemed to be Government lands
 
were deemed to be Government lands
 
(but which had never been awarded to
 
(but which had never been awarded to
 
them or anyone else by the Board of
 
them or anyone else by the Board of
 
Land Cossaissioners) were held to have
 
Land Cossaissioners) were held to have
−
neither t i t l e to nor the right of
+
neither title to nor the right of
 
possession of these Lands but were, in
 
possession of these Lands but were, in
−
e f f e c t , aere trespassers. 95/ This
+
effect, mere trespassers. <u>95</u>/ This
 
holding cannot be reconciled with the
 
holding cannot be reconciled with the
 
theory that the Hawaiian Government
 
theory that the Hawaiian Government
 
and the native Hawaiians were one and
 
and the native Hawaiians were one and
 
the ease) entity, insofar as holding
 
the ease) entity, insofar as holding
−
recognized t i t l e to the Crown and
+
recognized title to the Crown and
−
Government lands was concerned. 96/
+
Government lands was concerned. <u>96</u>/
−
Plnally, when the owner of a kuleana
+
Finally, when the owner of a <u>kuleana</u>
−
(a n a t iw tenant) died without heirs,
+
(a native tenant) died without heirs,
−
t i t l e to the land did not revert to
+
title to the land did not revert to
 
the Government, but to the owner of
 
the Government, but to the owner of
−
the ahupue'a or i l i in which the
+
the <u>ahupua'a</u> or <u>ili</u> in which the
−
kuleana was located. 97/
+
<u>kuleana</u> was located. <u>97</u>/
 +
 
 
The second premise underlying the
 
The second premise underlying the
−
recognized t i t l e claim (after the
+
recognized title claim (after the
 
"sane entity" theory) is that the 1840
 
"sane entity" theory) is that the 1840
 
Constitution and/or the Great Mahele
 
Constitution and/or the Great Mahele
 
of 1848 operated, in effect, to vest
 
of 1848 operated, in effect, to vest
−
t i t l e to the Government and Crown
+
title to the Government and Crown
−
lands in the native Hawaiians. 98/
+
lands in the native Hawaiians. <u>98</u>/
 
The validity of this premise must be
 
The validity of this premise must be
 
determined by reference to Hawaiian
 
determined by reference to Hawaiian
 
law.
 
law.
 +
 
The thrust of the Constitution of
 
The thrust of the Constitution of
 
1340 was that the chiefs and people
 
1340 was that the chiefs and people
 
had rights to land. 99/ However, as
 
had rights to land. 99/ However, as
 
of 1845, the chiefs and people had
 
of 1845, the chiefs and people had
−
" . . . o n l y a qualified right of
+
"...only a qualified right of
 
possession to lands. They had no
 
possession to lands. They had no
−
t i t l e s to them." 100/ Pursuant to the
+
titles to them." 100/ Pursuant to the
 
Act of Deceaber 10, 1845 (which
 
Act of Deceaber 10, 1845 (which
 
established the Board of Land
 
established the Board of Land

Revision as of 20:40, 5 May 2006

addition, it is asserted that there is no distinction to be made between the native Hawaiians and the Hawaiian Government and that they were one and the name, insofar as holding recognized title to the Crown and Government lands is concerned. 89/ Thus, it is alleged, in effect, that the Mahele operated to vest title to the Government and Crown lands in the native Hawaiians. 90/

Part two of the recognized title argument is that the United States recognized and acknowledged the rights of the Hawaiian Government to its own lands: "...the United States by recognizinq the sovereignty and domain of the Hawaiian Kingdom, also recognized the legitimacy of that government's title to its own lands." 91/

The essential premise of the recognized title claim is that the native Hawaiians and the Hawaiian Government are the same entity, rather than separate entities. However, Hawaiian law does not support the "same entity" theory, as the following considerations illustrate. First, the Hawaiian Government was viewed as an entity distinct from any natural persons. 92/ Second, in 1851, the Hawaiian legislature passed a statute providing for the appointment of agents to "sell Government lands to the people." 93/ Specifically, the statute provided for the sale of Government lands to the "natives." If, as OHA asserts, native Hawaiians and the Hawaiian Government were one and the same entity insofar as holding title to the Crown and Government lands was concerned, then there would have been no need for this statute, since the natives would already have been owners of the Government lands--supposedly by the operation of the Great Mahele. 94/ Third, native tenants who had long occupied what were deemed to be Government lands (but which had never been awarded to them or anyone else by the Board of Land Cossaissioners) were held to have neither title to nor the right of possession of these Lands but were, in effect, mere trespassers. 95/ This holding cannot be reconciled with the theory that the Hawaiian Government and the native Hawaiians were one and the ease) entity, insofar as holding recognized title to the Crown and Government lands was concerned. 96/ Finally, when the owner of a kuleana (a native tenant) died without heirs, title to the land did not revert to the Government, but to the owner of the ahupua'a or ili in which the kuleana was located. 97/

The second premise underlying the recognized title claim (after the "sane entity" theory) is that the 1840 Constitution and/or the Great Mahele of 1848 operated, in effect, to vest title to the Government and Crown lands in the native Hawaiians. 98/ The validity of this premise must be determined by reference to Hawaiian law.

The thrust of the Constitution of 1340 was that the chiefs and people had rights to land. 99/ However, as of 1845, the chiefs and people had "...only a qualified right of possession to lands. They had no titles to them." 100/ Pursuant to the Act of Deceaber 10, 1845 (which established the Board of Land Commissioners), 101/ King Kamehameha III "...relinquished his claim of ownership as sovereign to over two-thirds of the entire territory of the Kingdom, in order that the game might be awarded to the chiefs and common people by the Land Commission." 102/ Until this act was passed the t i t l e to land was in the king himself. 103/ Thus, the Act of December 10, 1845 "...paved the way for th«e chiefs and people to obtain t i t l e to the lands occupied by them respectively-- something they theretofore did no*. have." 104/ Accordingly, the 1840 Constitution did not operate so a3 V. vest t i t l e to the Government &r.i Crv«r. 341

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