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42/ 1880 Session Laws, p. 56; cited by Hanifin, p. 18, note 16. 43/ Thurston v. Bishop, 7 Haw. 421, 438 (1888). 44/ Indian law recognizes that individual members of a tribe have the right to use tribal property. See e.g., United States v. Cook, 86 U.S. (19 Wall.) 591, 593 (1873); and Whitefoot v. United States, 155 Ct.Cl. 127, 133-135 (1961), cert, denied, 369 U.S. 818 (1962). Cf_. United States v. Jim, 409 U.S. 80,82 (1972), rehearing denied, 409 U.S. 1118 (1973). 45/ OHA's Comments, p. 28. Georgia 16-18 (1832); and 46/ Cherokee Nation v 30 U.S. (5 Pet.) 1, Johnson v. Mcintosh, 21 U.S. (8 Wheat.) 543, 572-574 (1823). 47/ Confederated Tribes of the Warm Springs Reservation v. United States, supra; Sac and Fox Tribe of Indians of Oklahoma 161 Ct.Cl. 189, 201-202 (1963), cert, denied, 375 U.S. 921 (1963). 48/ It is argued that aboriginal title existed as of 1893 and/or 1898; see Betts, p. 14, MacKenzie, pp. 76 and 78. 49/ Confederated Tribes of the Warm Springs Reservation v. United S t a t e s , supra, 177 Ct.Cl. at 194. To prove the existence of aboriginal t i t l e it must be shown that such t i t le was not lost or abandoned prior to the alleged date of extinguishment. Confederated Tribes of the Umatilla Indian Reservation v. United S t a t e s, 14 Ind.Cl.Comm. 14,116 (1964). 50/ Quapaw Tribe v. United S t a t e s, 128 Ct.Cl. 45, 48-49 (1954). 51/ Quapaw Tribe v. United S t a t e s, 1 Ind.Cl.Comm. 469, 488 (1951), a f f 'd in p a r t , rev'd in part on other grounds, 128 Ct. CI. 45 (1954). OHA s t a t e s that "Native Hawaiians advance no argument as to 'constructive possession' of Government and Crown lands" (OHA's Comments, p. 23). 52/ Puyallup Tribe v. United S t a t e s , 17 Ind.Cl.Comm. 1, 23-24 (1966). It appears that the Government and Crown lands constituted a defined area—one of the t e s t s for aboriginal t i t l e. 53/ 31 Cong. R e c , p. 6261 (1898). 54/ Cf. Caddo Tribe of Oklahoma v. United S t a t e s , 4 Ind.Cl.Comm. 218-219 (1956), appeal dismissed, 140 Ct.Cl. 63 (1957). 55/ See footnote 18, above; Jean Hobbs, Hawaii: A Pageant of the Soil (Stanford, Calif: Stanford University Press, 1935), pp. 4-6 and 12-16. 56/ OHA comments that notwithstanding the conversion of much land to "individual fee-simple ownership," the Government and Crown lands were "maintained as lands held by the Hawaiian Kingdom for the chiefs and people in common" (OHA's Comments, p. 24). In addition, OHA s t a t e s : "One indication of the c o l l e c t i v e rights in these lands was the s p e c i f ic recognition of native rights of gathering and access on Government and Crown lands" (OHA's Comments, p. 24) The f i r s t assertion refers to OHA's contention that the argument concerning extinguishment of aboriginal t i t le is "irrelevant" because the Mahele confirmed the t i t l e to the Crown and Government lands in the Hawaiian Government and thus, in effect, confirmed the t i t l e in the native Hawaiians. This assertion is addressed in Part C of this chapter. The second contention ignores that portion of the Kuleana Act of 1850 that terminated the rights of native 355