Template:Nhsc-v1-356

tenants to grow crops and pasture animals on Crown and Government lands. In addition, this statute was held to have effected an implicit repeal of all former gathering rights. This statute evidences an absence of collective rights in the Government and Crown lands. 57/ OHA's Comments, p. 25. 58/ Ibid., p. 24. 59/ United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 347 (1941). OHA c i t e s Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979) with respect to abandonment of aboriginal t i t l e. However, this case concerned "abandonment" by the claimant of i ts t r i b a l status and not abandonment of aboriginal t i t l e (592 F.2d at 586-587). 60/ C£. Williams v. City of Chicago, 242 U.S. 434, 437-438 (1917); and Buttz v. Northern Pacific Railroad, 119 U.S. 55, 69-70 (1886). OHA also s t a t e s : "Under t r a d i t i o n a l principles of Indian law, forcible dispossession by non-natives [ r e f e r r i n g to the landing of American troops on January 17, 1893], is not voluntary abandonment and does not extinguish aboriginal t i t l e " (OHA's Comments, pp. 24-25). Temporary f o r c i b l e disposession of an Indian t r i b e from i t s aboriginal t i t l e lands by the sovereign had been found to effect an extinguishment of t i t le (Northern Paiute Nation, et a l . v. United S t a t e s , 7 Ind.Cl.Comm. 615, 616 (1959), a f f ' d , 183 Ct.Cl. 321 (1968)), but, as a general rule, temporary forcible dispossession does not operate to extinguish aboriginal t i t l e where there is no evidence of a Congressional intention to extinguish t i t l e (United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 354-356 (1941)). Here, where the Federal Government was not the sovereign before 1898, the rule cited by OHA has no a p p l i c a b i l i t y. 6jy Levy, p. 857. 62/ One theory advanced in the comments received by the Commission is t h a t leasing of Government and Crown lands is an example of "permissive use" of aboriginal t i t l e lands that did not effect an extinguishment of aboriginal t i t l e (see Senator Inouye's Comments, pp. 37-39). The doctrine of "permissive use" refers to use of an Indian t r i b e ' s (or band's) aboriginal t i t l e lands by another Indian t r i b e or band; this use is s p e c i f i c a l l y allowed by the tribe or band holding aboriginal t i t le (Samish Tribe v. United States, 6 Ind.Cl.Comm. 159, 175 (1958); S'Klallam Tribe v. United S t a t e s , 5 Ind.Cl.Comm. 680, 704 (1957)). The fact that non-native Hawaiians were allowed to use the Government and Crown lands is not evidence chat the native Hawaiians held aboriginal t i t l e to these lands. C_f_. Confederated Tribes of the Umatilla Indian Reservation v. United States, 14 Ind.Cl.Comm. 14, 119 (1964). "Permissive use" presumes the existence of aboriginal t i t l e (14 Ind.Cl.Comm. at 119). Furthermore, the use of Crown and Government lands was authorized by the Hawaiian Government—the sovereign—and not by the native Hawaiians. 63/ United States v. Santa Fe P a c i f i c Railroad Co., 314 U.S. 339, 347 (1941); and Pillager Bands of Chippewa Indians v. United States, 192 Ct.Cl. 698, 705 (1970). 64/ United States v. Santa Fe Pacific Railroad Co., 314 U.S.,339, 347 (1941); Washoe Indian Tribe v. United S t a t e s , 21 Ind.Cl.Comm. 447, 448 (1969); and cf. United States v. Northern Paiute Nation, 203 Ct.Cl. 468, 474-475 (1974). 65/ Cowlitz Tribe v. United S t a t e s , 25 Ind.Cl.Comm. 442, 451 (1971), aff'd, 199 Ct.Cl. 523 (1972); T l i n g i t and Haida Indians v. United S t a t e s , 147 Ct.Cl. 315, 33.6-341