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Existing Law, Native Hawaiians, And Compensation

In light of the history of landholding laws in Hawaii, the fall of the monarchy, and annexation as set forth in the preceding two chapters, the Commission has examined whether the native Hawaiians have any legal claim to compensation from the United States for loss of land or sovereignty. The present chapter sets forth the analysis and findings of this review. In preparing this chapter, the Commission has reviewed a number of articles and reports making the legal argument in favor of compensation. These include Melody MacKenzie's report for the Office of Hawaiian Affairs, Sovereignty and Land: Honoring the Native Hawaiian Claim, 1/ Karen Blondin's A Case For Reparations for Native Hawaiians (16 Hawaiian Bar Journal 13), and H. Rodger Betts' unpublished Report on the Hawaiian Native Claims (Second Draft, February 17, 1978). The Commission also attempted to address the views and analyses presented by a number of people at the Commission's hearings throughout Hawaii in January, 1982. In addition, the Commission has taken into account a number of comments received during the comment period on this chapter as it appeared in the Draft Report of Findings. Because of their scope, special attention was given to comments received from Senator Daniel K. Inouye, Congressman Daniel K. Akaka, the Office of Hawaiian Affairs (OHA), and Patrick Hanifin. 2/

In the following sections, the chapter first sets forth the background for the analysis, since much of it depends on technical legal concepts and terms. It then reviews whether the native Hawaiians are entitled to compensation for loss of their land under present law, and whether they are entitled to compensation for loss of their sovereignty. Finally, this chapter compares the native Hawaiians' claims to those of the Alaska Natives, addressed by Congress in the Alaska Native Claims Settlement Act. 3/

A. BACKGROUND

Over the years, a number of different native groups and organizations have sought compensation from the United States for loss of lands and loss of sovereignty. As a result, a large body of law has developed. That law is made up of both statutes passed by Congress and of cases decided by courts. Much of that law has been developed because American Indians have made claims for compensation; other law has grown out of claims by Alaska Native groups. In the discussion of whether the native Hawaiians have viable claims for compensation, the analysis examines whether the existing law—statutes and cases—provides a basis for giving compensation. Without in any way suggesting that Hawaiian natives are an Indian tribe, the law developed for and about Indian tribes will be reviewed to determine whether this body of law provides a legal basis for the native Hawaiian claims. 4==Existing Law, Native Hawaiians, And Compensation==

In light of the history of landholding laws in Hawaii, the fall of the monarchy, and annexation as set forth in the preceding two chapters, the Commission has examined whether the native Hawaiians have any legal claim to compensation from the United States for loss of land or sovereignty. The present chapter sets forth the analysis and findings of this review. In preparing this chapter, the Commission has reviewed a number of articles and reports making the legal argument in favor of compensation. These include Melody MacKenzie's report for the Office of Hawaiian Affairs, <u>Sovereignty and Land: Honoring the Native Hawaiian Claim, 1/ Karen Blondin's A Case For Reparations for Native Hawaiians (16 Hawaiian Bar Journal 13), and H. Rodger Betts' unpublished Report on the Hawaiian Native Claims (Second Draft, February 17, 1978). The Commission also attempted to address the views and analyses presented by a number of people at the Commission's hearings throughout Hawaii in January, 1982. In addition, the Commission has taken into account a number of comments received during the comment period on this chapter as it appeared in the Draft Report of Findings. Because of their scope, special attention was given to comments received from Senator Daniel K. Inouye, Congressman Daniel K. Akaka, the Office of Hawaiian Affairs (OHA), and Patrick Hanifin. 2/

In the following sections, the chapter first sets forth the background for the analysis, since much of it depends on technical legal concepts and terms. It then reviews whether the native Hawaiians are entitled to compensation for loss of their land under present law, and whether they are entitled to compensation for loss of their sovereignty. Finally, this chapter compares the native Hawaiians' claims to those of the Alaska Natives, addressed by Congress in the Alaska Native Claims Settlement Act. 3/

A. BACKGROUND

Over the years, a number of different native groups and organizations have sought compensation from the United States for loss of lands and loss of sovereignty. As a result, a large body of law has developed. That law is made up of both statutes passed by Congress and of cases decided by courts. Much of that law has been developed because American Indians have made claims for compensation; other law has grown out of claims by Alaska Native groups. In the discussion of whether the native Hawaiians have viable claims for compensation, the analysis examines whether the existing law—statutes and cases—provides a basis for giving compensation. Without in any way suggesting that Hawaiian natives are an Indian tribe, the law developed for and about Indian tribes will be reviewed to determine whether this body of law provides a legal basis for the native Hawaiian claims. 4/

Generally, law providing that native groups may be entitled to compensation for loss of land has developed under two legal principles: first, that a native group had "aboriginal title" to lands, and those lands were taken by the United Stages. and second, that the native group had "recognized title" to lands—title that the United States specifically acknowledged under its laws—and those lands were taken by the United States. A native group must meet a number of technical legal requirements in order to be entitled to compensation under either principle. This chapter will analyze the facts regarding the native Hawaiian history and land law in the context of those legal requirements.