NHSC Existing Law, Native Hawaiians, And Compensation

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1/ Karen Blondin's A Case For Reparations for Native Hawaiians (16 Hawaiian Bar Journal 13), and H. Rodger Betts' unpublished Report on the Hawaiian Native Claims (Second Draft, February 17, 1978).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/

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.

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Claims for compensation for loss of sovereignty, on the other hand, have been made under several laws, this chapter will first look at the legal concept of sovereignty, then consider the native Hawaiian experience under that concept. The chapter will then examine each of the laws under which claims for loss of sovereignty have been made.

Finally, this chapter will look at whether any special trust relationship exists between the United States and the native Hawaiians that would be a basis for compensation. It will then compare the native Hawaiian claims to the Alaska Native claims.

While this chapter must cover technical and legal material, summaries at the beginning and end of each portion of the chapter will make clear the context in which those legal points are considered.

B. ABORIGINAL TITLE AND COMPENSATION

Aboriginal title is a concept developed in the law to provide a basis for a native group that does not have traditional, legally-accepted land ownership rights to establish a claim to land based on use and occupancy thereof where the sovereign (an entity separate and distinct from the native group) has the underlying fee to said land. It is generally defined as title derived from the use and occupancy of land from time immemorial. 5/ Under the law, a number of specific tests have developed that a native group must meet in order to establish that it has aboriginal title to a tract of land: the group must be "a single landowning entity;" 6/ there must be actual 7/ and exclusive use and occupancy 8/ of the land; the use and occupancy must be of a defined area; 9/ and the land must be used and occupied for a long time before aboriginal title was extinguished. 10/

If the native Hawaiians meet the tests for holding aboriginal title, to be entitled to compensation from the United States the title must have been extinguished by the government of the United States, not by the government of Hawaii, before the United States annexed Hawaii. 11/ Finally, even if the aboriginal title was terminated by the United States, some law must give the native Hawaiians a right to compensation for loss of aboriginal title, since without such a law there is no right to such compensation. 12/ The following sections will analyze each of these requirements to determine: whether the native Hawaiians had aboriginal title to portions of the land in Hawaii; whether the United States extinguished that title; and whether the native Hawaiians are entitled to compensation for loss of that title.

Did the Native Hawaiians Have Aboriginal Title to the Crown and Government Lands?

To establish aboriginal title to the Crown and Government lands, native Hawaiians must meet each of the tests for such title set forth above. 13/

Under present law, the native Hawaiians as a group (without determining what persons would qualify as native Hawaiians) meet some but not all parts of the test to be a single landowning entity. 14/ Courts have held that, even in the absence of political cohesion, Indians having a common culture, common language, ties of kinship, economic ties, treated by the sovereign as having collective rights in the area claimed, and having common use of a claimed area, constituted a single landowning entity, 15/ The native Hawaiians were a group with a common culture, language, and ties of kinship.

Their economic ties in the nineteenth century are less apparent, since commoners were free to move from one ahupua'a to another, and since, during that century, many native Hawaiians left the land to work for

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foreign landowners in Hawaii or to work in other non-agricultural pursuits, so that they did not act as a group with economic ties to each other. 16/ Under the ancient land law system, it could be considered that the king owned all the land. 17/ However, even at that time the native Hawaiians did not treat all the lands as owned in common. A native Hawaiian tenant worked for a particular chief, and could be summarily ejected from the land he cultivated by that chief. In turn, the chief could be summarily removed from his land by the king. 18/ These practices underscored that ownership of the land was not by all native Hawaiians as a group.

Furthermore, the Great Mahele (or division of land) of 1848 brought to an "end once and for all the feudal system of land tenure in Hawaii, and finally and conclusively established the principle of private allodial titles." 19/ Since the intended goal of the Land Commission Board and of the Mahele was to be a total partition of undivided interests and also, a division and parcelling out of the Government and Crown lands 20/ (that is, defeudalization), 21/ any idea of communal ownership was laid to rest.

Moreover, the Kuleana Act of 1850 (and other legislation passed subsequent to the Great Mahele) allowed individual native Hawaiians to claim a fee simple interest in lands they had actually cultivated or, in the case of other native Hawaiians, to obtain fee simple title to Government lands by purchase. 22/ In addition, much land, including Government and Crown land established by the Great Mahele, was made available for purchase by foreigners. These lands, then, were not held in common by the native Hawaiians, but were owned in fee simple and gave the people vested property rights. Such ownership is not in common and is contrary to the concept of aboriginal title.

The Kuleana Act was significant in two other respects. Those natives who cultivated land had traditionally been allowed to "grow crops for their own use and to pasture animals on unoccupied lands" of the ahupua'a, one of the principal landowning units into which all land (including Government and Crown lands) was divided. 23/ The Kuleana Act abolished the right to grow crops and the right of pasturage. 24/ In addition, the Kuleana Act had the effect of establishing the principle that Government land could be sold, thereby opening the way for foreigners to purchase Government lands. By 1864, native Hawaiians had purchased over 90,000 acres of Government land and by 1893, foreigners had purchased over 600,000 acres of Government land. 25/ By 1893, 752,431 acres of Government and Crown lands had been leased to foreigners. 26/

One theory contends that the statement in the 1840 Constitution of Hawaii that the lands of Hawaii "belonged to the chiefs and people in common" 27/ establishes that the native Hawaiians had collective or common ownership of the Government and Crown lands and, in effect, proves that the native Hawaiians had aboriginal title to the Government and Crown lands. 28/ Similarly, it has been argued that the change in the land system of Hawaii under the Great Mahele, whereby the king "set apart forever to the chiefs and the people" approximately one and one-half million acres of land and retained for himself, his heirs and successors approximately one million acres 29/ (known respectively as the Government and Crown lands), establishes the collective ownership of these lands by the native Hawaiians and, therefore, effectively proves that they had aboriginal title thereto. 30/ However, even if the quoted language

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signifies that the Hawaiian Government treated the native Hawaiians as having "collective rights" 31/ in the Government and Crown lands, this treatment does not, in and of itself, establish that the native Hawaiians constituted a single landowning entity, 32/ which, in turn, is only one of the prerequisites for the existence of aboriginal title. Furthermore, even if the quoted language were an acknowledgment by the Hawaiian Government that native Hawaiians had a right to exercise some degree of control over the Government and Crown lands, this acknowledgment, in and of itself, does not prove the existence of aboriginal title to these lands. 33/ The existence of aboriginal title is a question of fact that must be established by clear and definite proof. 34/ The historical record reveals developments in individual ownership by native Hawaiians of many of these same lands between 1848 and 1893 and the ownership and/or use of many of the Government and Crown lands by non-natives by 1893 35/—facts that belie the arguments based on the 1840 Constitution and Great Mahele.

The first test for aboriginal title is the existence of a "single landowning entity." While the native Hawaiians, as a group, meet some of the requirements for a "single landowning entity," they do not meet all such requirements. As noted, they did not have common economic ties that united them. Not only were commoners free to move from one ahupua'a to another, but during the nineteenth century many native Hawaiians abandoned the land to work for foreign landowners in Hawaii or to work in other non-agricultural pursuits. 36/ Second, it does not appear that they made common use of the Crown and Government lands after 1848, in light of the ownership of many of these lands by individual native Hawaiians and individual non-natives, and the use of many of these lands by non-natives under leases from the Hawaiian Government. Third, even if the Hawaiian Government had treated the native Hawaiians as having "collective rights" in the Crown and Government lands prior to 1848, it appears that it did not do so after that date. Indeed, passage of the Kuleana Act (and related legislation), which opened the way to ownership of Crown and Government lands by individual native Hawaiians and individual foreigners, and the practice of leasing Government and Crown lands to foreigners indicate that after 1848 the Hawaiian Government did not view the native Hawaiians as an entity that had "collective rights" in the Crown and Government lands. In order for a group to be deemed a "single landowning entity," it must have been viewed as an entity having collective rights as of the alleged date of extinguishment of title. 37/

One comment received by the Commission on its Draft Report states that the Hawaiian Government was the "single landowning entity" required for the existence of aboriginal title. In effect, the commenter asserts that the native Hawaiians and the Hawaiian Government are one and the same for the purpose of aboriginal title. 38/ It is clear, however, that the government of Hawaii represented all the citizens of Hawaii, not just the native Hawaiians. Additionally, it is significant that the United States dealt with the government of Hawaii as a separate sovereign, or foreign country, the same way in which it dealt with France, for example. The United States Government did not treat Hawaii as a domestic dependent nation as it did entities such as Indian tribes. Moreover, the commenter's view is not consistent with the facts. The Kuleana Act of 1850 abolished the rights of native tenants to grow crops and pasture animals on Government and Crown lands. 39/ This statute was interpreted by the Hawaiian Supreme

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Court as effecting an implicit repeal of all former gathering rights as well. 40/

These facts present strong evidence that the Hawaiian Government did not represent only the native Hawaiians 41/ and was not the "single landowning entity," since enactment of this legislation had the effect of terminating the native Hawaiians' right of use and occupancy (the essence of aboriginal title) of most of the Government and Crown lands. In addition, it was provided by statute that any Hawaiians using Government land without Government authorization could be prosecuted for trespass. 42/ Yet if the Hawaiian Government had been the "single landowning entity," native Hawaiians would, of necessity, have had a right to use and occupy Government lands without any authorization, and therefore should have been specified as exempt from application of this statute. Finally, native tenants who had long occupied lands deemed to belong to the Government (that is, lands that had never been awarded to anyone by the Board of Land Commissioners) were held to have neither title to nor the right of possession of these lands, but, in effect, were only trespassers thereon. 43/ If the Hawaiian Government had been the "single landowning entity" for aboriginal title purposes, these native tenants would not have been considered trespassers. 44/

The same commenter who states that the Hawaiian Government and the native Hawaiians were one and the same entity for aboriginal title purposes, also expresses the view that the native Hawaiians were "citizens of an aboriginal nation with internal and external attributes of sovereignty." 45/ The juxtaposition of these views presents a conceptual problem. The legal fiction of aboriginal title was created to meet the need of various European sovereigns, who claimed fee title to the lands of North America (and later the United States as the successor sovereign), to acknowledge the possession of much of these lands by various Indian tribes. 46/ Thus, when an Indian tribe holds aboriginal title to certain lands this means that the tribe has a right of use and occupancy of such lands, while the sovereign (an entity separate and distinct from the members of the tribe viewed as a group or the tribal government) holds the fee title to said lands. Accordingly, if these two views are correct and the Hawaiian Government was, in fact, simultaneously both the single landowning entity and the sovereign, then such a state of facts is diametrically opposed to the concept of aboriginal title, which rests upon the existence of two separate entities (the native group that is the single landowning entity and the sovereign).

The second test for aboriginal title is that the single landowning entity had actual and exclusive use and occupancy of the specified lands (here, the Government and Crown lands) for a long time before title was extinguished. 47/ Actual and exclusive use and occupancy for a long time prior to 1893 or 1898 48/ and continuing up to 1893 or 1898—the alleged dates of extinguishment 49/—must be established by clear and definite proof. 50/ Because such a large portion of the Crown and Government lands was patented or sold to individuals (either native Hawaiians or foreigners) or leased to foreigners by 1893, actual and exclusive use for a long time up to that date cannot easily be shown. Courts require that occupancy be actual and not "merely asserted." 51/ Moreover, in making a determination as to the area that was actually and exclusively used and occupied, the courts will take into account a loss of population of the landowning entity prior to the alleged date of extinguishment of aboriginal title. 52/ Between 1853 and 1896 the number of native Hawaiians dropped from 70,036 to 31,019. 53/ Even before 1893, therefore, the trend was a

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dramatic decline. Moreover, since the native Hawaiians did not have a nomadic culture, actual and exclusive use and occupancy of the extensive area of Crown and Government lands is even more difficult to establish. 54/

The final test for aboriginal title is that the use and occupancy must have continued for a long time before being extinguished. Prior to the Great Mahele, given the system of occupancy by chiefs, rather than by the people in common, 55/ it is doubtful if common use and occupancy by all native Hawaiians existed. Between the time of the Great Mahele in 1848 and 1893, much of the Government and Crown land was converted to fee simple ownership by non-natives and natives, and much of this land was used by non-natives. Thus, it does not appear that common use and occupancy of the Crown and Government lands by all native Hawaiians existed between 1848 and 1898. 56/

It cannot be established, therefore, that the native Hawaiians meet the above three tests for showing the existence of aboriginal title.

Did the United States Extinguish Whatever Aboriginal Title Existed?

The assertion was made in a comment received by the Commission that aboriginal title to the Crown and Government lands still existed in 1898 and was extinguished by the United States by means of the Joint Resolution of Annexation. 57/ This comment rests in large part on the premise that during the period between the establishment of the Provisional Government in 1893 and 1898 aboriginal title was not extinguished, "...since only voluntary abandonment of these lands by native Hawaiians would divest native Hawaiians of aboriginal title." 58/ The statement that the aboriginal title of the native Hawaiians could only be extinguished by voluntary abandonment assumes that the Hawaiian Government was the single landowning entity for purposes of holding aboriginal title. Under traditional principles of Indian law, aboriginal title can be extinguished by voluntary abandonment or by actions of the sovereign that are inconsistent with the existence of aboriginal title. 59/ If the Hawaiian Government was not the single landowning entity, then the Hawaiian Government as sovereign (that is, as an entity separate from the native Hawaiians) took actions that were inconsistent with the existence of aboriginal title and that extinguished said title. If the Hawaiian Government was the single landowning entity, then these same actions, in effect, constituted a voluntary abandonment of aboriginal title. 60/

The facts of land ownership in Hawaii underscore that even if the tests for aboriginal title had been met, such title was extinguished by actions of the Hawaiian Government before 1893 (that is, actions of the sovereign that were inconsistent with aboriginal title) and certainly before annexation, which is the first time the United States assumed sovereignty. The Kuleana Act of 1850 terminated the right of pasturage and the right of commoners to grow crops on unoccupied lands of the ahupua'a. 61/ Other Hawaiian legislative acts had the effect of allowing foreigners to purchase Government lands. By 1893, over 600,000 acres of Government land had been sold to foreigners (non-natives) and 752,431 acres of Government and Crown lands had been leased to foreigners. 62/ By thus having "asserted and exerted full dominion" over Crown and Government lands, the government of Hawaii (which as sovereign had the authority to extinguish aboriginal title) had taken actions specifically inconsistent with the continued existence of aboriginal title. 63/ Legislation enacted by the

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sovereign can effect an extinguishment of aboriginal title. 64/ Settlement and/or use of aboriginal title lands by non-natives that is authorized by the sovereign—here the government of Hawaii—operates to extinguish aboriginal title. 65/

In sum, termination of the native Hawaiians' right to grow crops and right to pasturage on the unoccupied lands of ahupua'a (pursuant to the Kuleana Act of 1850), the purchase of Government lands by natives and foreigners (authorized by various acts passed by the Hawaiian legislature), and the statutes authorizing foreigners to lease Crown and Government lands (together with the actual leasing of 752,431 acres of said lands by foreigners), taken toqether, served to effectuate an extinguishment of aboriginal title, if any had existed, to the Crown and Government lands. Therefore, if native Hawaiians had had any aboriginal title to the Crown and Government lands, that title was extinguished by the actions of the government of Hawaii before 1893. Similarly, if the Hawaiian Government was the single landowning entity and "represented" the native Hawaiians, 66/ then these very same actions constituted a relinquishment, in effect, of. the native Hawaiians' right of use and occupancy of the Government and Crown lands (that is, abandonment of aboriginal title) prior to 1893. 67/

Importantly, "aboriginal title rights extinguished prior to the inception of United States sovereignty are not compensable claims against the United States." 68/ Comments received by the Commission suggest that even if the native Hawaiians were deprived of aboriginal title in 1893 by actions of the Provisional Government (or by the establishment thereof) the United States would, nonetheless, be liable under applicable Indian law. 69/ Such liability is premised on decisions under the Indian Claims Commission Act holding the United States liable for the removal of minerals by third parties from aboriginal title lands prior to the date of extinguishment of aboriginal title. 70/ However, in all of the cited cases the aboriginal title lands in question had become part of the territory of the United States (and thus the United States had sovereignty over these lands) prior to the actions of the third parties. 71/ Any actions of the Provisional Government in 1893 (or the establishment thereof in 1893) occurred prior to the inception of the United States' sovereignty over the Hawaiian Islands. Furthermore, the historical evidence shows that aboriginal title, if my had existed, was extinguished before 1893—that is, before the Provisional Government came into existence. 72/ In light of the foregoing, any United States' participation in the fall of the Hawaiian monarchy does not constitute an extinguishment of aboriginal title for which the United States is liable.

Right of Compensation for Loss of Aboriginal Title

Even if the native Hawaiians had had aboriginal title to the Crown and Government lands, and that title had been extinguished by the United States (tests that are not met), compensation for the loss of these lands would not be available under current law. The Fifth Amendment to the United States Constitution provides that the United States cannot take land without just compensation. Aboriginal title is not a vested property right, but instead only a right of occupancy, which the sovereign may terminate at any time without payment of compensation. 73/ Therefore, courts have held that its loss does not entitle the loser to compensation under the Fifth Amendment. 74/

Extinguishment of aboriginal title is compensable under Section 2 of the Indian Claims Commission Act (25 U.S.C. § 70a). 75/ However, to be

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compensated, claims under that Act had to be filed by 1951. Therefore, under present law, no authority is available under which compensation can be sought. 76/

In conclusion, the native Hawaiians do not meet the above three tests for establishing aboriginal title to lands in Hawaii, including the Crown and Government lands designated by the Great Mahele. Further, even if aboriginal title were established, it was extinguished by acts of the Hawaiian Government prior to 1898, when the United States, through annexation, became the sovereign. Therefore, the native Hawaiians are not entitled to compensation for such extinguishment by the United States under existing law. Finally, even if the United States had extinguished aboriginal title, no present law provides for compensation for that loss.

C. RECOGNIZED TITLE AND COMPENSATION

The second legal principle under which the United States may compensate for loss of land is if the United States has "recognized"--acknowledged by its laws--the title of the native group to the land. 77/ Again, specific legal requirements to establish that the United States has recognized title must be met. "Recognized" title, in federal law, occurs when Congress has granted an Indian tribe the "riqht to occupy and use" certain lands permanently. 78/ "Recoonized" title means the grant to an Indian tribe of "rights in land which were in addition to the Indians' traditional use and occupancy rights exercised only with the permission of the sovereign..." 79/ This section of the chapter analyzes those requirements in light of native Hawaiian history.

First, recognized title must come from the United States Congress. 80/ Before 1898, the Hawaiian Islands were not part of the territory of the United States. Therefore, Congress had no jurisdiction over the native Hawaiians, unlike the Indian tribes. 81/ The United States could not, then, have granted recognized title to the Government and Crown lands prior to the time when the United States exercised sovereignty over the Hawaiian Islands.

Because only Congress can accord recognized title, the Hawaiian king's setting aside of about 1.5 million acres of Government lands to "the chiefs and the people of my Kingdom," and the approval of this action by the Hawaiian legislature by the Act of June 7, 1848, cannot be a grant of recognized title. 82/

Similarly, because Congress can grant recognized title only when it can exercise sovereignty, such title could not be established by the United States through various treaties and agreements before 1898. 83/ Therefore, an unratified treaty between the United States and the Hawaiian Kingdom negotiated in 1826, an 1849 treaty (relating to friendship, commerce, and navigation), and the 1875 Reciprocity Treaty (concerning trade) cannot constitute recognition by the United States of the title of the native Hawaiians to the Government and Crown lands. 84/ Further, an unratified treaty cannot possibly be the source of recognized title. 85/ A treaty of peace and friendship does not constitute a grant of recognized title even though it may acknowledge that the particular tribe or band is living in a certain area. 86/ Moreover, these treaties were not made with the native Hawaiians, but with the Hawaiian Government. 87/

The native Hawaiians claim that they held recognized title to the Government and Crown lands. Comments received by the Commission in support of this claim make a two-part argument. Part one consists of several assertions. First, it is asserted that the Hawaiian Government held recognized title to the Crown and Government lands because a formal title to these lands was "confirmed in the native government by the Mahele and subsequent actions." 88/ In

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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 title to land was in the king himself. 103/ Thus, the Act of December 10, 1845 "...paved the way for the chiefs and people to obtain title to the lands occupied by them respectively-- something they theretofore did not have." 104/ Accordingly, the 1840 Constitution did not operate so as to vest title to the Government and Crown

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lands in the native Hawaiians.

Furthermore, the provision of the 1840 Constitution entitled "Exposition of the Principles on Which the Present Dynasty is Founded" (which states that all land "belonged to the chiefs and people in common") is not found in the subsequent 1852 Constitution. 105/ As a general rule, "the adoption of a new constitution repeals and supersedes all the provisions of the older [former) constitution not continued in force by the new instrument." 106/ Indeed, a provision in a constitution that is not contained in subsequent constitutions does not remain in effect. 107/ After 1852, only the 1852 Constitution was in effect. 108/ With respect to the legal impact of a new constitution, the Hawaiian Supreme Court held in 1892 that when a new constitution takes effect:

...it is a new departure in the government of the country, inasmuch as it states anew the principles upon which the government is to be administered, and rearranges the distributions and limitations of sovereign powers. What is not changed is re-affirmed. The new statement of the fundamental law takes the place of the old. 109/

The operative effect of the Great Mahele of 1848 has been described as follows:

The Mahele did not give title. It did give the chiefs the opportunity to take their Maheles [divisions] to the Land Commission and receive awards of title thereon just as the common people had presented to the Commission their claims for titles to their kuleana. Title was derived from the awards. That the common people were not parties to a "division" is shown by the fact that the kuleana which were awarded to them were regarded as being carved out of or subtracted from the ahupua'a and ili in which they respectively were situated.

[The Mahele has thus been characterized as the]...process of rearranging and distributing the land among the claimants who applied for title to it. 110/

There is no indication that the Great Mahele has been construed as having, in and of itself, vested any title to the Government and Crown lands in the native Hawaiians. 111/ Rather, with respect to the Government lands, the only common interest obtained by native Hawaiians, as a group, by virtue of the Great Mahele was a common right to present claims for particular Government lands to the Board of Land Commissioners (and later the Minister of the Interior) in order that the Board (or Minister) might make awards of lands claimed. 112/ Indeed, even after the Great Mahele, "Government" lands not awarded by the Board of Land Commissioners (or the Minister of the Interior) were considered to belong to the Government. 113/

With regard to the Crown lands, the Great Mahele did not operate so as to vest title thereto in the native Hawaiians. Rather, title to the Crown lands was in the king. 114/ Title to these lands remained in the king 115/ (or in the office of the sovereign) 116/ until 1893 when the monarchy ceased to exist, whereupon they became Government lands. 117/ When the former Crown lands became Government lands, title to the former Crown lands became vested in the Provisional Government. 118/

In sum, native Hawaiians, as a group, did not obtain a "formal, vested title" 119/ to the Government and Crown lands. Accordingly, the basic premises of the recognized

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title claim are invalid. 120/

The crux of the second part of the recognized title argument is that the "...federal government did recognize and acknowledge the existing government of Hawaii and the rights of that government to the territory within its domain." 121/ This theory contends that the unratified treaty between the United States and the Hawaiian Kingdom negotiated in 1826, together with the 1849 and 1875 treaties noted above, effected an acknowledgment and recognition of the rights of the Hawaiian Government to lands within its domain. 122/

The source of recognized title is the United States Congress, and Congress can grant recognized title to land only when it exercises sovereignty over said land. 123/ Prior to 1898, the Hawaiian Islands were not part of the territory of the United States and Congress did not have sovereignty over them. Accordingly, the "recognized" title theory advanced cannot be reconciled with these requirements for the existence of recognized title. Moreover, the alleged recognition and acknowledgment by the United States of the "rights" of the Hawaiian Government to the territory within its domain, is analogous to a situation where Congress, by statute, accords a native group only the right of "permissive occupation"—in effect, an "acknowledgment" that a native group occupies and uses certain lands in its possession. 124/ Yet, such an "acknowledgment" does not give rise to recognized title. 125/ Similarly, a treaty that acknowledges only that a particular native group is occupying and using certain lands does not give rise to recognized title. 126/ As noted previously, an unratified treaty cannot be the source of recognized title. 127/

Since the Hawaiian Islands were not part of the territory of the United States prior to 1898, Congress had no sovereignty over the Hawaiian Islands and, therefore, no jurisdiction over the native Hawaiians prior to 1898. Thus, Congress could not have granted native Hawaiians recognized title to the Crown and Government lands prior to annexation. Accordingly, no grant of recognized title to the native Hawaiians, as a group, was possible by virtue of the one unratified and two ratified treaties that predated annexation. 128/

Nor did the Joint Resolution of Annexation constitute a recognition of title for native Hawaiians. 129/ The section of the Joint Resolution relating to public lands designates as beneficiaries the "inhabitants of the Hawaiian Islands," not "native Hawaiians." 130/ This use of language is particularly important because Congress was well aware of the existence of the native Hawaiians, and looked on them as distinct from the rest of the residents of Hawaii. 131/ Congress also viewed the "native Hawaiians" as a distinct ethnic group. 132/ Finally, the legislative history of the Joint Resolution makes clear that the "inhabitants of the Hawaiian Islands" were viewed as being all 109,000 people living on the Hawaiian Islands. 133/ If Congress had meant to recognize title of the native Hawaiians in the Joint Resolution of 1898, it would, among other things, have used the term "native Hawaiians" rather than "inhabitants of the Hawaiian Islands."

The Organic Act of 1900 also did not establish recognized title of the native Hawaiians to the ceded lands. 134/ The Organic Act of 1900 provides, in part: "The laws of Hawaii relating to public lands... shall continue in force until Congress shall otherwise provide." 135/ This

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provision is similar to a clause in Alaska's Organic Act, which at Section 8 provides, in part:

...That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress...136/

The Supreme Court has held that this provision of the Alaska Organic Act did not indicate "any intention by Congress to grant to the Indians permanent rights in the lands of Alaska occupied by them by permission of Congress." 137/ Rather, the Alaska Organic Act was designed "merely to retain the status quo until further congressional or judicial action was taken." 138/ The Hawaiian Organic Act must be similarly considered not to grant a permanent right of use and occupancy in Crown and Government lands to native Hawaiians. Further, uniike the Alaska Act, the Hawaii Act does not refer to natives. 139/

Some comments received by the Commission assert as a sort of corollary in support of the recognized title claim that the United States has followed a consistent policy of respecting "...property rights of native people recognized under prior governments. Congress and the courts have long respected grants to native peoples under the laws of another sovereign." 140/

It is an established principle of international law that private property rights in territory ceded by one nation to another are not affected by the change of sovereign and are entitled to protection. 141/ This rule would apply if the claimed property of native Hawaiians was considered as having been segregated from the public domain of the prior sovereign before the annexation of Hawaii. 142/ It is necessary to examine the law of the prior sovereigr before the cession (that is, Hawaiian law) in order to determine whether th< claimed property was regarded as having been separated from the public domain of the prior sovereign. 143/

Government lands that were not awarded by the Board of Land Commissioners (or by the Minister of the Interior) were considered to belong to the Hawaiian Government. 144/ The Crown lands became Government lands in 1893 after the monarchy ceased to exist. 145/ Lands that belonged to the Hawaiian Government were considered as comprising the "public domair." 146/ Since title to the Government lands was in the Hawaiian Government, it follows that the Government (and former Crown) lands were part of the public domain. 147/ Thus, the rule of international law invoked is not applicable to the Crown and Government lands. Even the claimed property rights of native groups are not protected by this rule in those instances where the property in question was not considered as having been separated from the public domain of the prior sovereign. 148/

Moreover, the test traditionally used to determine whether the cited rule of international law is applicable to a claimed private property right is whether said right constituted a "vested" interest under the law of the prior sovereiqn before the cession of territory in question. 149/ Prior to annexation, the Constitution of 1840 was not construed as operating to create a vested private interest in the Government and Crown lands. Furthermore, the Constitution of 1840 was repealed by the 1852 Constitution. 150/ Nor was the Great Mahele interpreted as granting a vested private interest in the subject lands to the native

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Hawaiians. 151/ Accordingly, the native Hawaiians did not have a "vested" interest in the Government and Crown lands under pre-annexation Hawaiian law.

If recognized title is not established, no compensation is due under the Fifth Amendment. 152/ Even if the native Hawaiians had been accorded recognized title by some action of the United States Congress, they cannot be compensated for the loss of that title. Any actions of the United States before 1898 cannot constitute a compensable claim under the Fifth Amendment for a "taking" of the Government and Crown lands without compensation, because the United States did not have sovereignty over the Hawaiian Islands prior to 1898. 153/ Annexation itself was not a taking under the requirements of the Fifth Amendment because it was not an appropriation of the Crown and Government lands for use by the Federal Government, pursuant to a Congressional authorization. 154/ Section 91 of the Organic Act of 1900 confirms this fact by providing that the "public property" (Crown and Government lands) ceded to the United States under the Joint Resolution of Annexation:

...shall be and remain in the possession, use and control of the government of the Territory of Hawaii, and shall be maintained, managed and cared for by it, at its own expense, until otherwise provided by Congress, or taken for the uses and purposes of the United States by direction of the President or of the governor of Hawaii. 155/

Section 91 (in conjunction with Section 73, which authorized the Territory of Hawaii to sell, exchange, and lease the public lands) has been imposed as follows:

Those provisions [Sections 73 and 91] did not create a mere agency on the part of the Territory to act for the Federal Government. They constitute a delegation of legislative power from Congress to the Territory. Conveyances made pursuant to the power are not conveyances of the United States of America executed by the territorial officers as agents, but they are conveyances of and by the Territory in its own right pursuant to the Acts of Congress. This follows from the fact that the Territory has complete possession and control of the public lands with the power to dispose of them. 156/

Therefore, the native Hawaiians would not be entitled to Fifth Amendment compensation for loss of recognized title, if it were established. 157/

In sum, Congress must grant recognized title, not the government of Hawaii. Moreover, the United States could not have granted such recognized title before 1898 because it did not have sovereignty over the Hawaiian Islands. The actions it took in and after 1898—particularly annexation and passage of the Organic Act of 1900—did not create recognized title, because they did not grant the native Hawaiians the right to use and occupy the Government and Crown lands permanently. Even if recognized title were established, under the facts of the Hawaiian experience, loss of that title would not be compensable under either the Fifth Amendment to the , United States Constitution or under the Indian Claims Commission Act. Under present law, therefore, the native Hawaiians have no legal right to compensation for loss of their land.

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D. LOSS OF SOVEREIGNTY AND COMPENSATION

Native groups have also made claims that they should be given compensation for loss of "sovereignty." This section defines sovereignty and then considers whether the law provides compensation for its loss in the context of the facts relevant to native Hawaiians.

The Office of Hawaiian Affairs defines sovereignty as the power to control internal and external affairs and the right of self-government. 158/ The United States courts have examined the concept of sovereignty for Indian tribes and that consideration would be applicable as well to native Hawaiians:

The powers of the Indian tribes are, in general, "inherent powers of a limited sovereignty which has never been extinguished..." Before the coming of Europeans, the tribes were self-governing sovereign political communities. [Cites omitted].

: Indian tribes are, of course, no longer "possessed of the full attributes of sovereignty."...Their incorporation with the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised...But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory..." The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status...159/

The part of their sovereignty that Indian tribes have "implicitly lost by virtue of their dependent status" is the power to control their external relations with non-members of the tribe. 160/ As a result, Indian tribes are not free to alienate their land to non-Indians, to have "direct commercial or governmental relations with foreign nations, "or to exercise criminal jurisdiction over non-members in tribal courts. 161/

The sovereignty retained Indian tribes encompasses the power of tribal self-government and the power to control internal relations among the members of the tribe. 162/ Thus, Indian tribes retain their power to determine trial membership, regulate domestic relations, promulgate rules of inheritance for tribal members, and exercise criminal jurisdiction over tribal members. 163/

For native Hawaiians, by analogy, there are claims that native Hawaiians lost all attributes of sovereignty— the power to deal with foreign nations, to control internal relations, and to govern themselves. It has been argued that the power of self-government was effectively lost with the establishment of the Provisional Government in 1893, and was totally lost when the Territorial Government was established pursuant to the Organic Act of 1900 (31 Stat. 141). 164/ Even if history had fully established these claims, which the preceding chapter does not, native Hawaiians could not be compensated for loss of sovereignty.

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For native groups, including Indian tribes and native Hawaiians, sovereignty "exists only at the sufferance of Congress and is subject to complete defeasance." 165/ In short, Congress can take away sovereignty of native groups at will, once it exercises sovereignty over the group. In terms of native Hawaiians, the United States was dealing with the government of Hawaii as another sovereign until 1898. Courts will not look behind the United States' recognition of a foreign government; so before 1898, no action of Congress could be regarded as taking the sovereignty of Hawaii. 166/

Even after 1898, any effect which Congress' actions may have had on the sovereignty of native Hawaiians cannot give rise to a compensable claim. Since Congress can take away the sovereignty of native groups at will, sovereignty is not a property right subject to the Fifth Amendment, and its loss is not compensable. 167/ Moreover, a claim of compensation for loss of sovereignty is not a viable cause of action, even under the liberal provisions of the Indian Claims Commission Act (60 Stat. 1049, 25 U.S.C. § 70, et seq). The legislative history of the Indian Claims Commission Act indicates no intention on the part of Congress to create a cause of action for loss of sovereignty and the Indian Claims Commission has so held. 168/ Even if there were theoretically a viable cause of action for loss of sovereignty under the Indian Claims Commission Act, the United States did not assume a special duty to protect the sovereignty of the native Hawaiians under either the Organic Act of 1900 or the Joint Resolution of Annexation (or under the one unratified treaty and two ratified treaties with Hawaii that pre-dated Annexation), so that the requirements for such a claim would not have been met. 169/ Further, such a claim would have to have been filed by 1951. 170/ The analysis under the Fifth Amendment and the Indian Claims Commission Act is not changed by the fact that the Joint Resolution was not submitted to a plebiscite in Hawaii. Indeed, it has been held that the Joint Resolution was legal and proper. 171/

The Alaska Native Claims Settlement Act (ANCSA) also does not appear to support the claim of compensation for loss of sovereignty. ANCSA compensated the Alaska Natives for loss of aboriginal title, if any, and for the termination of all claims based on that title. 172/ Furthermore, the legislative history of ANCSA shows that Congress did not intend to extinguish claims "based upon grounds other than the loss of original Indian title land." 173/ Since Congress did not intend to extinguish claims based upon grounds other than loss of aboriginal title, the compensation paid under ANCSA was clearly not payment for any claim for loss of sovereignty by the Alaskan Natives. In sum, ANCSA did not provide for compensation for loss of sovereignty by Alaskan Natives, and, therefore, provides no analogy for compensation to native Hawaiians for loss of sovereignty.

Therefore, the native Hawaiians have no present legal entitlement to compensation for any loss of sovereignty against the United Spates. 174/

E. TRUST RELATIONSHIP BETWEEN THE NATIVES OF HAWAII AND THE UNITED STATES

If a special trust relationship between the Federal Government and native Hawaiians exists that is very similar to the trust relationship between the Federal Government and United States Indian tribes, 175/ failure of the United States to meet

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the terms of the trust may (but does not necessarily) provide a basis for compensation. 176/ The theory has been advanced that, "It has long been recognized that a special relationship, characterized as a fiduciary relationship, exists between the Federal Government and Indian tribes," 177/ and that, "The federal-Hawaiian native relationship arises from United States' participation in the overthrow of the native government and subsequent federal ownership of the legal title to native lands." 178/

A fiduciary relationship between the Federal Government and an Indian tribe can, as a general rule, arise only from provisions of a treaty, statute, or agreement whereby the Government assumes fiduciary obligations toward the tribe. 179/ No fiduciary (trust) relationship arose from the fact that the United States Minister in Hawaii supported establishment of the Provisional Government in 1893. (Regarding this history, see preceding chapter.) The salient fact is that the Hawaiian Islands were not part of the United States in 1893, and the Federal Government exercised no sovereignty over them. 180/ The sovereignty of the Federal Government over Indian tribes arises from the fact that these tribes reside within the boundaries of the United States. 181/ In the absence of sovereignty over the Hawaiian Islands, no fiduciary relationship could have existed between the natives of Hawaii and the Federal Government in 1893, or at any time prior to annexation. 182/

The Joint Resolution of Annexation (Joint Resolution No. 55 of July 7, 1898, 30 Stat. 750) also did not give rise to a fiduciary relationship between the United States and the native Hawaiians. The Joint Resolution provided that the revenues or proceeds from the ceded land shall (with specified exceptions) "...be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." This language does not give rise to a fiduciary relationship with the native Hawaiians because it did not specify that the revenues and proceeds of the ceded lands were to be used solely for the benefit of the "native inhabitants of the Hawaiian Islands." 183/ Whether or not this language creates a trust relationship between the United States and all Hawaiians ("inhabitants") to superintend the use of these funds is a matter beyond the scope of this Commission, which is to examine the interests of native Hawaiians.

Similarly, the Organic Act of 1900 (31 Stat. 141) did not give rise to a trust relationship with the native Hawaiians. Section 73 of the Organic Act provided, in part, that iunds derived from the "sale or lease or other disposal" of the ceded lands shall be "applied to such uses and purposes for the benefit of the inhabitants of the Territory of Hawaii as are consistent with the joint resolution of annexation..." Again, if Congress had intended Section 73 to apply specifically to "native inhabitants," it would have so provided.

More importantly, Section 91 of the Organic Act indicates lack of any intent by Congress to establish a fiduciary relationship with the native Hawaiians. Section 91 provides that the lands ceded by the joint resolution of annexation were to:

...remain in the possession, use and control of the government of the Territory of Hawaii, and shall be maintained, managed and cared for by it, at its own expense...

Since Congress in Section 91 of the Organic Act specifically provided that the Territory of Hawaii and not the Federal Government would control and

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supervise the ceded lands, no fiduciary or trust relationship between the native Hawaiians and the Federal Government exists. 184/

The fact that the title to the ceded lands was held by the United States did not give rise to a fiduciary relationship because Congress provided that the Territory of Hawaii would control and supervise these lands—not the Federal Government. 185/ Furthermore, pursuant to Section 5 of the Hawaii Admission Act (Act of March 18, 1959, 73 Stat. 4,5), the United States granted the State of Hawaii "the United States' title to all the public lands, and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission to the Union." Since fee title to much of the ceded lands is no longer held by the Federal Government, no fiduciary relationship now exists as to the ceded lands, in any event.

Some commenters on the Commission's Draft Report assert that the Hawaiian Homes Commission Act of 1921 186/ and Hawaii's Admission Act 187 "unequivocally establish a trust relationship between Native Hawaiians and the Federal Government." 188/ Yet even assuming this assertion is correct, 189/ such specific trusts do not establish the existence of a general trust that might require compensation for the Government and Crown lands. Only a trust duty with respect to these lands that arose prior to 1893 or 1898 might require payment of compensation. A trust duty must come into existence before it can be breached. 190/ Here, the acts that supposedly constituted the breach (that is, the Federal Government's participation in the fall of the Hawaiian monarchy and annexation) are said to have simultaneously given rise to the alleged trust duty. Yet the acts of breach cannot create a trust relationship. 191/

Even if a trust relationship between the Hawaiian natives and the Federal Government were to exist with respect to the Crown and Government lands (by virtue of the Joint Resolution of Annexation and the Organic Act), it is, at most, a very limited trust relationship. The requirement that revenues or proceeds from the ceded lands were (with certain exceptions) to be used "solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes" was at most a "special trust" that "merely restricted the uses to which the proceeds of such lands [the public lands of Hawaii] could be put." 192/ Additionally, even though the proceeds or revenues from the ceded lands may have been the subject of a "special trust," and even though the Federal Government held fee title to the ceded lands, these two circumstances did not "impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee." 193/ This limited trust relationship, if any, did not encompass any fiduciary duty of the Federal Government bo protect the native Hawaiians in the possession of their lands because the Federal Government never assumed any such duty. 194/

There is most likely no specified trust relationship between the United States and the native Hawaiians established by law of the United States, requiring compensation to be paid for the Crown and Government lands or for loss of sovereignty. At most there is a very limited special trust. Native Hawaiians are therefore not entitled under existing law to compensation for any breach of a trust duty toward them.

F. COMPARISON WITH ALASKA NATIVE CLAIMS

The legal claims of the Alaska Natives that motivated passage of the Alaska Native Claims Settlement Act

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(43 O.S.C. § 1601, et seq.) differed significantly from the claims of native Hawaiians. 195/

Non-Indian settlement of the western United States followed a three-step pattern. First, the land was acquired by treaty from the sovereign entity—France, Spain, Mexico, Great Britain, or Russia— claiming title. Second, some lands in the acquired territory were set aside for Indians. Third, the public land laws, which allowed people to enter into the acquired territories and settle thereon, were extended to all federally-owned land in the acquired territory, except land that had been specifically reserved for governmental purposes, such as Indian reservations.

In Alaska, however, only the first and third steps occurred. 196/ After the United States acquired title from Russia, the public land laws were extended to Alaska without there having been any effort by the United States to define Alaska Native rights to use land or set aside land for their exclusive use. However, as Congress extended the various public land laws to Alaska, it provided that nothing in the laws should be deemed to affect Alaska Native occupancy. In general, this meant that land actually occupied by an Alaska Native or a native group or village could not be acquired by a non-native under the public land laws. However, it has generally been held that a non-native could acquire title to vacant land that was subject to native "aboriginal" occupancy, rather than actual occupancy. 197/

When Alaska became a state, Congress authorized the State to select vast areas of federal land for its own use. 198/ The selection of land had to be approved by the Secretary of the Interior; however, he could give "tentative approval" to the State selection pending his final approval and issuance of a patent. Once the State had received "tentative approval," it could "conditionally" lease or sell the land to third parties. Another provision of the Statehood Act, however, required the State of Alaska to disclaim any interest in land that "may be held by any Indians, Eskimos, or Aleuts." Further, the Statehood Act provided that none of its provisions could be construed to "recognize, deny, enlarge, or impair any claim against the United States" [emphasis added] and that the resolution of any native land rights would be left to future legislation by Congress.

The Statehood Act thus had an irreconcilable conflict. Unlike the acts that extended the public land laws to Alaska but protected the lands natives actually occupied, the Statehood Act prohibited the State from selecting any lands that "might" be held by natives or even claimed by natives. Congress probably intended to protect lands that the natives used and occupied in an aboriginal manner from State selection, but no one was sure what those lands were or the extent of any native claim. The State did select some lands and received tentative approvals from the Secretary. The State then leased these lands to oil companies, which discovered oil on them. When oil was discovered, the native groups claimed aboriginal title to the land. The Secretary of the Interior then issued a land freeze preventing the State from receiving further tentative approvals of i t s selections pending resolution of the native claims. Moreover, Congress, in the Statehood Act, had reserved for itself the exclusive authority of defining native land rights through future legislation, so resolution by lawsuit was difficult. This impasse led to the enactment of the Alaska Native Claims Settlement Act which, for the first time in Alaska, defined the land rights of the natives and allowed the State to select its land from the federal lands not set aside for the natives by the Settlement Act.

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In contrast, in Hawaii the land rights of the natives were determined by a series of laws from 1850 to 1898, subsequent to the Great Mahele of 1848, which established a mechanism for the acquisition of fee title. The Crown and Government lands established by the Great Mahele eventually became federal lands when Hawaii was annexed by the United States. Title to the lands was vested in the State of Hawaii by the Hawaiian Statehood Act, which does not contain a provision protecting native land rights similar to the one found in the Alaska Statehood Act. Therefore, the reasons that impelled passage of the Alaska Native Claims Settlement Act are not present in the Hawaiian situation.

The purpose of this chapter has been to examine the existing laws that are most likely to provide a basis for compensation to native Hawaiians for any loss of lands or loss of sovereignty. As set forth in detail here, the review shows that existing law provides no basis for such compensation. Therefore, special legislation would be required before any such payments could be made. Congress has responded in the past to native American claims: once with the passage of the Indian Claims Commission Act in 1946, and again in 1971 with the Alaska Native Claims Settlement Act.

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EXISTING LAW, NATIVE HAWAIIANS, AND COMPENSATION

NOTES

1/ Melody K. MacKenzie, Sovereignty and Land: Honoring the Hawaiian Native Claim (Honolulu: Office of Hawaiian Affairs, 1982), pp. 75-79.

2/ Patrick Hanifin's comments were in the form of a detailed article that is scheduled to be published in the Hawaii Bar Journal in the Spring of 1983. The article is entitled "Hawaiian Reparations: Nothing Lost, Nothing Owed."

3/ This chapter looks at rights under present law only; it does not address whether Congress or the State Legislature should consider enacting new laws in these matters. Further, in response to comments received by the Commission, we reiterate that the chapter looks only at whether native Hawaiians have present legal rights to compensation. It does not address whether the United States' conduct in Hawaii at the end of the nineteenth century was proper, moral, or legal, or what account of it the United States should make. Those matters are left for the Conclusions and Recommendations section of the Report.

4/ Some comments received by the Commission on its Draft Report stated that the tone of this chapter is improperly adversarial. The chapter attempts to address the full range of views on the matters it covers; the approach is intended to be comprehensive rather than adversarial. Other commenters stated that comparisons of native Hawaiians to North American Indians, Eskimos, and Alaskan Natives were not appropriate. However, we have examined the experiences of and the laws applicable to these groups whose experience as native groups provides some similarities to the experience of native Hawaiians. Congressman Cecil Heftel, in his comments and other commenters recognize the use of such analogies or rely upon such analogies.

5/ Inupiat Community of the Slope v. United States, __ Ct.Cl. __, 680 P.2d 122, 128 (1982), cert. denied, 103 S. Ct. 299 (1982).

6/ E.g., Northern Paiute Nation, et. al. v. United States, 7 Ind.Cl.Comm. 322, 412 (1959), aff'd, 183 Ct.Cl. 321 (1968).

7/ Quapaw Tribe v. United States, 128 Ct.Cl. 45, 49 (1954).

8/ United States v. Seminole Indians, 180 Ct.Cl. 375, 383 (1967).

9/ Ibid.

10/ Ibid.

11/ Caddo Tribe of Oklahoma v. United States, 35 Ind.Cl.Comm. 321, 339 (1975). One commenter (on the Draft Report) emphasized the view that the native Hawaiians held aboriginal title to Government and Crown lands as of 1898 and that this title was extinguished by the United States when annexation occurred (Melody K. MacKenzie, Comments on the Native Hawaiians Study Commission Draft Report, (November 1982), p. 25; hereinafter cited as "OHA's Comments").

12/ Claims in the absence of such a law are barred by the doctrine of sovereign immunity.

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13/ In a draft alternate to this chapter, OHA comments that the native Hawaiians are "not asserting aboriginal title claims to Government and Crown lands which passed into fee simple ownership" (OHA's Comments, Alternate Chapter III, p. 7.) About 720,000 acres of Government and Crown lands passed into fee simple ownership before 1898 (see discussion, above, page 335 to 336, and Levy, Native Hawaiian Land Rights, 63 Calif. L. Rev. 848, 859 (1975)).

14/ The requirement of a single landowning entity is discussed fully in the cases cited below in footnote 15.

15/ Confederated Tribes of the Warm Springs Reservation v. United States, 177 Ct.Cl. 184, 206-207 (1966); Nooksack Tribe v. United States, 3 Ind.Cl.Comm. 479, 494-495 (1955), aff'd, 162 Ct.Cl. 712 (1963), cert. denied, 375 U.S. 993 (1964); and Muckleshoot Tribe v. United States, 3 Ind.Cl.Comm. 658, 674-675 (1955), aff'd in part, vacated in part on other grounds, 174 Ct.Cl. 1283 (1966), cert. denied, 385 U.S. 847 (1966).

16/ Levy, p. 859.

17/ Jon J. Chinen, The Great Mahele; Hawaii's Land Division of 1848 (Honolulu: The University Press of Hawaii, 1974), p. 5.

18/ Gavan Daws, Shoal of Time; A History of the Hawaiian Islands, (New York: The MacMillan Company, 1968), pp. 124-5; see also above, chapter entitled "Diplomatic and Congressional History: From Monarchy to Statehood."

19/ Morris, The Land System of Hawaii, 21 ABA Journal 649, 650 (1935).

20/ Levy, pp. 854-855.

21/ Some commenters objected to the use of feudal terms in referring to native Hawaiians* land ownership patterns. The terms are used here to assist those who are not native Hawaiians in understanding land ownership patterns.

22/ Levy, pp. 855-857. The paper submitted to the Commission by the Office of Hawaiian Affairs, "Regarding the Legal Aspects," written by Melody MacKenzie and Jon Van Dyke, contends that although the Kuleana Act allowed individual native Hawaiians to obtain fee simple title to Crown or Government lands that they actually cultivated or Government lands they purchased, it did not extinguish the "people's" interest in the Crown and Government lands. See the discussion above, pages 335 to 336, and footnote 13, above. The MacKenzie/Van Dyke paper is reproduced in its entirety in the Appendix of this Report.

23/ Daws, p. 124.

24/ Levy, p. 857.

25/ Ibid., p. 859.

26/ Ibid.

27/ Ibid., p. 852, note 26.

28/ H. Rodger Betts, Report on the Hawaiian Native Claims, Second Draft (1978), p. 15. One comment received by the Commission states that the 1840 Constitution affirms that the native Hawaiians had aboriginal title to the Government and Crown lands.

29/ Chinen, The Great Mahele, pp. 25-29. Betts concedes that the lands at issue did not encompass 2,500,000 acres by 1898 (Betts, p. 15). Indeed, Congress believed that the "public lands" in Hawaii totaled only 1,740,000 acres. (H.R. Rep. No. 1355, 2nd Sess., p. 43 (1898)). MacKenzie states that the lands at issue total 1.75 million acres.

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30/ Betts, pp. 15-20; MacKenzie, p 76. One commenter takes the position the Great Mahele did not extinguish aboriginal title. However, the Great Mahele was the process established when individuals could acquire fee simple ownership to Government and Crown land and thus obtain vested property interests. Such an action by the Hawaiian Government was inconsistent with the existence of aboriginal title to the Government and Crown lands, and together with other actions inconsistent with aboriginal title, operated to extinguish aboriginal title, if any had existed, prior to 1893.

31/ Nooksack Tribe v. United States, supra, 3 Ind.Cl.Comm. at 495.

32/ 3 Ind.Cl.Comm. at 494-495.

33/ Skokomish Tribe v. United States, 6 Ind.Cl.Comm. 135, 157-158 (1958). Cf. Red Lake, Pembina and White Earth Bands, et. al. v. United States, 164 Ct.Cl. 389, 393-394 (1964). The fact that land that is the subject of a claim of aboriginal title was explicitly included in a treaty of cession involving said land (and other land) does not establish the existence of aboriginal title.

34/ See discussion in text above.

35/ Karen Blondin, A Case for reparations for Native Hawaiians, 16 Hawaiian Bar Journal 13, p. 27; Levy, pp. 857-859. In her article, A Case for Reparations, Karen Blondin argues that the Court of Claims decision in Liliuokalani v. United States, 45 Ct. CI. 418 (1910) makes clear that land was collectively held and used by native Hawaiians. In Liliuokalani, the Court of Claims held that the lands held as Crown lands by the Queen should be treated as other Government lands, so that the Queen's loss of the lands did not give rise to a compensable taking for her. Since the Government lands, as discussed above, are not regarded as owned collectively by the native Hawaiians as a group, the ruling in Liliuokalani does not support Blondin's argument.

Further, in Sovereignty and Land, MacKenzie argues that the 1840 Constitution created a trust relationship among the king, chiefs, and people by citing a statute that reads:

No man living on a farm whose name is recorded by his landlord, shall without cause desert the land of his landlord. Nor shall the landlord causelessly dispossess his tenant. (p. 6)

However, this statute was a mere instrument of the chiefs to ke p the laborers of their land from leaving their homes for the developing cities of Honolulu and Lahaina (Levy, p. 851). It was not a statement of common use and ownership. These laws and the ones to follow were to represent a move toward the philosophy of individual ownership of land and a break from whatever common use may have existed in the traditional feudal land system.

36/ See footnote 16, above.

37/ Nooksack Tribe v. United States, supra, 3 Ind.Cl.Comm, at 494-495; Samish Tribe v. United States, 6 Ind.Cl.Comm. 159, 172 (1958).

38/ OHA's Comments, p. 23.

39/ Act of August 6, 1850 §7 [1850] Hawaii Laws 203 (2 Revised Laws (1925) at 2142); Hanifin, p. 18; and Levy, p. 857.

40/ Levy, p. 857, note 57, citing Oni v. Meek, 2 Haw. 87 (1858).

41/ OHA's Comments, p. 23.

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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.

46/ Cherokee Nation v. <u?Georgia</u> 30 U.S. (5 Pet.) 1, 16-18 (1832); and 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 States, supra, 177 Ct.Cl. at 194. To prove the existence of aboriginal title it must be shown that such title was not lost or abandoned prior to the alleged date of extinguishment. Confederated Tribes of the Umatilla Indian Reservation v. United States, 14 Ind.Cl.Comm. 14,116 (1964).

50/ Quapaw Tribe v. United States, 128 Ct.Cl. 45, 48-49 (1954).

51/ Quapaw Tribe v. United States, 1 Ind.Cl.Comm. 469, 488 (1951), aff'd in part, rev'd in part on other grounds, 128 Ct. CI. 45 (1954). OHA states 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 States, 17 Ind.Cl.Comm. 1, 23-24 (1966). It appears that the Government and Crown lands constituted a defined area—one of the tests for aboriginal title.

53/ 31 Cong. Rec, p. 6261 (1898).

54/ Cf. Caddo Tribe of Oklahoma v. United States, 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 states: "One indication of the collective rights in these lands was the specific recognition of native rights of gathering and access on Government and Crown lands" (OHA's Comments, p. 24) The first assertion refers to OHA's contention that the argument concerning extinguishment of aboriginal title is "irrelevant" because the Mahele confirmed the title to the Crown and Government lands in the Hawaiian Government and thus, in effect, confirmed the title 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

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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 cites Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979) with respect to abandonment of aboriginal title. However, this case concerned "abandonment" by the claimant of its tribal status and not abandonment of aboriginal title (592 F.2d at 586-587).

60/ Cf. 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 states: "Under traditional principles of Indian law, forcible dispossession by non-natives [referring to the landing of American troops on January 17, 1893], is not voluntary abandonment and does not extinguish aboriginal title" (OHA's Comments, pp. 24-25). Temporary forcible disposession of an Indian tribe from its aboriginal title lands by the sovereign had been found to effect an extinguishment of title (Northern Paiute Nation, et al. v. United States, 7 Ind.Cl.Comm. 615, 616 (1959), aff'd, 183 Ct.Cl. 321 (1968)), but, as a general rule, temporary forcible dispossession does not operate to extinguish aboriginal title where there is no evidence of a Congressional intention to extinguish title (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 applicability.

61/ Levy, p. 857.

62/ One theory advanced in the comments received by the Commission is that leasing of Government and Crown lands is an example of "permissive use" of aboriginal title lands that did not effect an extinguishment of aboriginal title (see Senator Inouye's Comments, pp. 37-39).

The doctrine of "permissive use" refers to use of an Indian tribe's (or band's) aboriginal title lands by another Indian tribe or band; this use is specifically allowed by the tribe or band holding aboriginal title (Samish Tribe v. United States, 6 Ind.Cl.Comm. 159, 175 (1958); S'Klallam Tribe v. United States, 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 title to these lands. Cf. Confederated Tribes of the Umatilla Indian Reservation v. United States, 14 Ind.Cl.Comm. 14, 119 (1964). "Permissive use" presumes the existence of aboriginal title (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 Pacific 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 States, 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 States, 25 Ind.Cl.Comm. 442, 451 (1971), aff'd, 199 Ct.Cl. 523 (1972); Tlingit and Haida Indians v. United States, 147 Ct.Cl. 315, 33.6-341

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(1959); Washoe Indian Tribe v. United States, 21 Ind.Cl.Comm. 447, 448 (1969); Pueblo de Zia v. United States, 19, Ind.Cl.Comm. 56, 64-65, 74-75, 77 (1968); and Pueblo of Taos v. United States, 15 Ind.Cl.Comm. 666, 702 (1965).

66/ OHA's Comments, p. 23.

67/ Cf. 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).

68/ Caddo Tribe of Oklahoma v. United States, 35 Ind.Cl.Comm. 321, 339 (1975); Pueblo de Cochiti v. United States, 7 Ind.Cl.Comm. 422, 450-454 (1959); and Pueblo de Isleta v. United States, 7 Ind.Cl.Comm. 619, 645-646 (1959), aff'd, 152 Ct.Cl. 866 (1961), cert. denied, 368 U.S. 822 (1961).

69/ OHA's Comments, p. 25; Senator Inouye's Comments, pp. 35-36.

70/ Temoak Band of Western Shoshone Indians v. United States, 219 Ct.Cl. 346 (1979), cert. denied, 444 U.S. 973 (1979); United States v. Fort Sill Apache Tribe, 209 Ct.Cl. 433 (1976); United States v. Northern Paiute Nation, 203 Ct.Cl. 468 (1974); and United States v. Northern Paiute Nation, 183 Ct.Cl. 321 (1968).

71/ See e.g., United States v. Northern Paiute Nation, 203 Ct.Cl. 468, 470 (1974). Furthermore, the cases cited in the preceding footnote involve situations where there was a treaty that prospectively authorized the acts of the third parties (219 Ct.Cl. at 356-357) or where there was a "subsequent ratification and adoption" by Congress of the acts in question (203 Ct.Cl. at 474; and 183 Ct.Cl. at 340). The actions of United States Minister Stevens that contributed to the overthrow of the monarchy were obviously not authorized by any pre-1893 treaty between the United States and Hawaii, nor were they subsequently adopted by Congress. Indeed, the actions of Stevens on January 17, 1893, do not appear to have been sanctioned by the Congress or the President. The United States Government is not liable for the acts of an agent that exceed the scope of the agent's authority. See Wisconsin Central Railroad Company v. United States, 164 U.S. 190, 210 (1896); Hawkins v. United States, 96 U.S. 689, 691-692 (1877); Whiteside, et al. v. United States, 93 U.S. 247, 256-257 (1876); and Filor v. United States, 76 U.S. (9 Wall.) 45, 48-49 (1869). The paper by Melody MacKenzie and Jon Van Dyke, "Regarding the Legal Aspects," contends that the Government is responsible for the acts of an agent. However, the United States is liable only when it expressly waives sovereign immunity, and it has done so in specific circumstances and then only for authorized acts.

Nor is the decision in Lipan Apache Tribe, et al. v. United States, 36 Ind.Cl.Comm. 7 (1975) controlling. In Lipan Apache, the United States was held liable for the acts of the third parties which effected an extinguishment of aboriginal title of certain Texas Indians to lands in Texas. The acts in question occurred after Texas was admitted to the Union as a State in 1845. By the terms of admission Texas retained ownership of public lands within Texas; however, the Federal Government held jurisdiction over Indian affairs within Texas (36 Ind.Cl.Comm. at 18). On May 15, 1846, the Federal Government entered into a treaty with the plaintiff Indian tribes whereby the tribes acknowledged themselves to be 'under the protection of the United States and no other power, state or sovereignty whatever' (36 Ind.Cl.Comm. at 51). The Commission found that subsequently (i.e., in the 1850's) the United States, through its military forces, had aided Texas authorities in placing the tribes on reservations, thereby extinguishing the plaintiff tribes' aboriginal title to their Texas lands.

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The Commission held that by virtue of the 1846 treaty "...the United States had assumed the role of protector of those Texas Indians who participated in that treaty. In our judgment the Federal Government did not fulfill its role as protector of the Indians" (36 Ind.Cl.Comm. at 18-79). Under the circumstances the aboriginal rights of the plaintiff tribes had been "effectively extinguished by the United States" (36 Ind.Cl.Comm. at 19).

Even assuming, arguendo, that the Provisional Government extinguished the aboriginal title, if any, of the native Hawaiians to the Crown and Government lands, it does not follow that the United States would incur any liability for the acts of the Provisional Government on the basis of the Lipan Apache decision. This is because there are crucial differences between the situation in Lipan Apache and the situation here. First, Texas had been annexed by the United States and was part of the United States before the acts of third parties in question took place. By contrast, in 1893, the Hawaiian Islands were not part of the territory of the United States. Second, after the annexation of Texas, the United States was "in charge of Indian Affairs" in Texas (36 Ind.Cl.Comm. at 18). By comparison, as of 1893 the United States had no control over the affairs of native Hawaiians; sovereignty over native peoples only arises when their lands become included within the territorial boundaries of the United States (Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-18 (1835)). Most importantly, in Lipan Apache the United States had assumed a duty to protect the Texas tribes that were parties to the 1846 treaty, thereby giving rise to a "special relationship" within the meaning of Section 2, Clause (5) of the Indian Claims Commission Act (25 U.S.C. §70a). Prior to 1893 (or 1898) the United States had entered into no treaty with either the Kingdom of Hawaii or the native Hawaiians as a group whereby it assumed the duty of protecting the native Hawaiians (including any duty to protect their possession of lands that they occupied). Cf. compare with United States v. Oneida Nation of New York, 217 Ct.Cl. 45, 55-59 (1978) which held there was a "special relationship" with the Oneida Nation because in a 1784 treaty the Federal Government had promised to protect the Oneidas in the possession of the lands the Oneidas occupied as of 1784.

72/ Senator Inouye states: "...it could be argued that the United States exercised some measure of control over the Hawaiian Islands long before annexation" (Senator Inouye's Comments, p. 37, note 17).

It has been suggested that the United States might be held liable under Section 2, Clause (5) for the Indians' loss of title to lands (which had never been part of the public domain of the United States) where there is "true concert, partnership or control of the Federal Government" with regard to the specific acts of third parties which effected an extinguishment of title. Six Nations, etc. v. United States, 173 Ct.Cl. 899, 904, 907-909 (1965). However, there are no decisions holding the United States liable under Clause (5) for the acts of third parties on the grounds of "true concert, partnership or control of the Federal Government." Moreover, in Lipan Apache Tribe, et al. v. United States, 180 Ct.Cl. 487, 502 (1967) the Court noted the language from the Six Nations opinion, but stated with respect to Section 2, Clause (5): "In any event, the United States is held liable under this 'fair and honorable dealings' clause not because it has title to the property, but because, by its own acts, it has undertaken special duties which it has failed to fulfil" (180 Ct.Cl. 502). The comments have not established the existence of any special duties owed to the native Hawaiians. In addition, where a native group claims that the United States undertook certain trust

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responsibilities relating to that group (see OHA's Comments, pp. 29-30), liability turns on whether a "special relationship was created" (Cf. 180 Ct.Cl. at 502). Yet the wrongs complained of (i.e., United States' participation in the fall of the monarchy and the annexation of Hawaii) (see OHA's Comments, p. 30) cannot give rise to a "special relationship" under Clause (5). See Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct.Cl. 790, 800 (1970), cert. denied, 400 U.S. 819 (1970).

Finally, the central government under the Articles of Confederation possessed considerable jurisdiction over Indian affairs within the States. See United States v. Oneida Nation of New York, 217 Ct.Cl. 45, 62-65 (1978). By contrast, the Federal Government had no jurisdiction over native Hawaiian affairs prior to 1898.

73/ Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955).

74/ Tee-Hit-Ton Indians v. United States, supra, at 284-285. See also Inupiat Community of the Arctic Slope v. United States, Ct.Cl. 680 F.2d 122, 128-129 (1982), cert. denied, 103 S.Ct. 299 (1982).

75/ See e.g., Fort Sill Apache Tribe of the State of Oklahoma v. United States, 22 Ind.Cl.Comm. 527, 543 (1970).

76/ One commenter suggests that the statute of limitations is unfair since some native Hawaiians were born after 1951 and could not have filed claims earlier. However, the Indian Claims Commission Act is designed to compensate the claims of appropriate groups of individuals, not the claims of individuals. If they were qualified to file a claim under the Act, native Hawaiians did not file before August 13, 1951.

77/ MacKenzie, pp. 75-76, 83.

78/ Sac and Fox Tribe of Indians of Oklahoma v. United States, 161 Ct.Cl. 189, 197 (1963), cert. denied, 375 U.S. 921 (1963).

79/ Ibid., emphasis added.

80/ Ibid., p. 192.

81/ Sovereignty over Indian tribes comes from their presence within the territorial boundaries of the United States. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-18 (1832).

82/ See MacKenzie, p. 76. She argues that the 1848 Act affirmed the aboriginal title in these lands "to the Hawaiian people as a collective group" and "recognized the traditional use rights of native tenants." She further contends that deeds executed by Kamehameha III and approved by the Hawaiian legislature evidenced recognized title. Ibid., p. 83.

83/ Sac and Fox Tribe v. United States, supra, 161 Ct.Cl. at 192.

84/ The theory that these acts do accord recognized title is in MacKenzie, pp. 83-85. For discussion of these treaties see preceding chapter above.

85/ Coos Bay, Lower Umqua and Siuslaw Indian Tribes v. United States, 87 Ct.Cl. 143, 153 (1938), cert. denied, 306 U.S. 653 (1939).

86/ Sac and Fox Tribe v. United States, supra, 161 Ct.Cl. at 192-193; and Northwestern Band of Shoshone Indians v. United States, 95 Ct.Cl, 642, 657-661, 681-684 (1942).

87/ See also United States v. Mowat, 582 F.2d 1194, 1206 (9th Cir. 1978), cert. denied, 439 U.S. 967 (1978), which implies that the native Hawaiians had no recognized title to the lands at issue.

88/ OHA's Comments, pp. 23, 25-26.

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89/ Ibid. The contention that the Hawaiian Government was the "single landowning entity," for aboriginal title purposes has been addressed previously (see pp. 336 to 337 above).

90/ OHA asserts "...the title held by native Hawaiians may have been not only aboriginal in nature, but also a formal, vested title" (OHA's Comments, Alternate Chapter III, p. 12). The alleged "communal rights of native Hawaiians" to the Crown and Government lands (supposedly granted by the 1840 Constitution and confirmed by the Great Mahele) are equated with land titles conferred by foreign governments (e.g., such as titles conferred by Spanish land grants). (Senator Inouye's Comments, pp. 39-40.) Thus, Senator Inouye, too, is effectively asserting that title to the Government and Crown lands was in the native Hawaiians.

91/ OHA's Comments, p. 26. Again, OHA states that the native Hawaiians and the Hawaiian Government are not separate entities. The following discussion in the text also responds to the views of Keith S. Abe.

92/ Thurston v. Bishop. 7 Haw. 421, 437-438 (1888); Harris v. Carter, 6 Haw. 195, 201 (1877); and Kenoa v. Meek, 6 Haw. 63, 65 (1872). See also Hanifin, pp. 16-18.

It should be noted that ownership of the Crown lands was in the king. In the Matter of the Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864). The Court of Claims held that the Crown lands belonged to the office of the sovereign rather than the sovereign as an individual and became Government lands when the monarchy ceased to exist in 1893. Liliuokalani v. United States, 45 Ct.Cl. 418, 426-428 (1910).

93/ Act of July 11, 1851 [1851] Hawaii Laws 52 (2 Revised Laws (1925) at 2196)).

94/ There were also other statutes providing for sale of Government land t the people; e.g., 1874 Session Laws, CY 24; 1876 Session Laws, Ch. 44 and 1878 Session Laws Ch. 5; and 1884 Session Laws, Ch. 45; cited by Hanifin, p. 16,

95/ Thurston v. Bishop, 7 Haw. 421, 437-438 (1888).

96/ Indian law recognizes that individual members of a tribe have the right to use tribal property. 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).

97/ Hobbs, p. 41, note 17.

98/ OHA asserts that the title to the Crown and Government lands "held by native Hawaiians may have been not only aboriginal in nature, but also a formal, vested title" (OHA's Comments, Alternate Chapter III, p. 12). In addition, OHA contends that: (1) the native Hawaiians and the Hawaiian Government were one and the same entity insofar as holding title to the subject lands is concerned; and (2) the Great Mahele operated so as to vest a "formal title" to said lands in the Hawaiian Government (OHA's Comments, pp. 23, 25-26). Also, Senator Inouye alleges, in effect, that the 1840 Constitution granted the native Hawaiians' title to the Crown and Government lands (Senator Inouye's comments, pp. 39-41).

99/ Daws, p. 125, and Hobbs, p. 29. The Hawaiian Supreme Court held in 1977 that the 1840 Constitution "acknowledged that the people of Hawaii are the original owners of all Hawaiian land," State v. Zimring, 58 Haw. 106, 111 (1977). The Zimring opinion ignores the fact that the 1840 Constitution was repealed by the 1852

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Constitution (see discussion in text below, page 342). Also, the opinion does not state that the 1840 Constitution operated so as to vest title to the Crown and Government lands in the native Hawaiians. To the extent that it may imply that the 1840 Constitution did vest title, such an interpretation cannot be reconciled with the language of Thurston v. Bishop.

100/ Thurston v. Bishop, 7 Haw. 421, 433 (1888).

101/ (1847) Hawaii Laws 107 (2 Revised Laws (1925) at 2120); cited by Levy, p. 853.

102/ Thurston v. Bishop, 7 Haw. 421, 428-429 (1888).

103/ Hobbs, p. 41, note 17.

104/ Ibid.

105/ Lorrin A. Thurston, The Fundamental Lav of Hawaii, 155, 156-168 (1904). Nor is it found in the Constitutions of 1864, 1887 or 1894 (Thurston, 169-194, 201-242). See also Hanifin, pp. 26-27.

106/ 16 C.J.S., Constitutional Law, $42 (1956).

107/ Ex parte Palm, 238 N.W. 732, 733 (S.Ct. Mich. 1931), cert. denied, 285 U.S. 547 (1932). This case rejected the argument that a provision in the first State Constitution of 1835 that was not found in any of the subsequent State Constitutions was still in force. See also In re Advisory Opinion to the Governor, 112 So. 2d. 843, 847 (S.Ct. Fla. 1959) which held that the omission of language from the State Constitution that had appeared in the State's previous constitutions should be presumed to be an intentional omission.

105/ Rex v. Booth, 2 Haw. 616, 524-625 (1863).

109/ Ahlo v. Smith, 8 Haw. 420, 423 (1892). "...loss of...[a right] through promulgation of a new Constitution is by 'due process of law' of the most pronounced character" (8 Haw. at 424). It should be noted that Article 91 of the 1894 Constitution expressly abrogated "all other Constitutions" of Hawaii (Thurston, p. 235). [Emphasis added].

110/ Hobbs, p. 41, note 17, and p. 40.

111/ Rose v. Yoshimura, 11 Haw. 30, 32 (1897); Kenoa v. Meek, 6 Haw. 63, 67 (1872); and Kanaina v. Long, 3 Haw. 332, 334-335 (1872). In Territory v. Gay, 26 Haw. 382, 402 (1922), the Great Mahele was held to have itself created "no estate in lands." While this language may refer principally to individual Hawaiians, it strongly implies that the Great Mahele did not operate so as to vest title in native Hawaiians as a group. Moreover, the opinion in State v. Zimring, 58 Haw. 106 (1977) implies that the sole source of title, if any, was the 1840 Constitution and not the Great Mahele (58 Haw. at 111-112).

112/ Kenoa v. Meek, 6 Haw. 63, 66-67 (1872); and Kanaina v. Long, 3 Haw. 332, 334-335 (1872). See also In re Austin, 33 Haw. 832, 838-839 (1936); and Territory v. Gay, 26 Haw. 382, 402-403 (1922). In Kenoa v. Meek, reference is made to the right of the particular claimant "in common with all other Konohikis" as having been barred (6 Haw. at 66). Commenters did not cite any of the' decisions of the Hawaiian Supreme Court (see, e.g., OHA's Comments, "Footnotes").

This common right was subject to statutes of limitations. Claims of native tenants not presented and proven by May 1, 1854, were "forever barred" (Act of May 26, 1853 [1853] Hawaii Laws 26 (2 Revised Laws (1925) at 2145); cited by Levy, p. 856. Claims of konohiki that were not presented by January 1, 1895, were

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barred (Act of December 16, 1892, Session Laws, Ch. 68 (2 Revised Laws (1925) at 2151-2152)). 113/ Kahoomana v. Moehonua, 3 Haw. 635, 639 (1875); and Kenoa v. Meek, 6 Haw. 63, 67 (1872). This was true also before the Great Mahele (see Thurston v. Bishop, 7 Haw. 421, 438 (1888)). This does not mean that title was vested in the native Hawaiians because the Hawaiian Government and native Hawaiians were not one and the same entity (see discussion above, p. 341).

114/ In the Matter of the Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864).

115/ 2 Haw. 715 (1864).

116/ Liliuokalani v. United States, 45 Ct.Cl. 418, 427-428 (1910).

117/ 45 Ct.Cl. at 427-428.

118/ See Hanifin, pp. 12-13. Article 95 of the 1894 Constitution expressly provided that the former Crown lands were Government lands (see Thurston, p. 237).

119/ OHA's Comments, Alternate Chapter III, p. 12.

120/ OHA asserts under its comments on aboriginal title that after the Mahele the Hawaiian Kingdom held title to the Government and Crown lands "for the benefit of the chiefs and people" (OHA's Comments, p. 23). OHA also alleges that the Crown and Government lands were held in trust (OHA's Comments, pp. 4-5). This theory suffers from serious defects. A trust could have first arisen only under the provisions of the 1840 Constitution (upon which OHA relies) since, as a general rule, a fiduciary relationship arises only under the provisions of a treaty, statute or agreement (e.g., United States v. Mitchell, 445 U.S. 535, 542-546 (1980)). Even assuming that the 1840 Constitution did establish a trust, the repeal of the 1840 Constitution by the 1852 Constitution terminated the trust. Moreover, Article 91 of the 1894 Constitution (Lorrin A. Thurston, The Fundamental Law of Hawaii, 2 35 (1904) specifically abrogated "all other [i.e., former] Constitutions" of Hawaii.

OHA states that the Great Mahele "continued" this trust concept because the lands conveyed to the Hawaiian Government were to be set "apart 'forever to the chiefs and people of my Kingdom'" (OHA's Comments, pp. 4-5). However, this language did not apply to the Crown lands (see Levy, p. 855). Accordingly, the Great Mahele clearly established no trust with respect to the Crown lands (e.g. United States v. Mitchell, supra). OHA contends that since the Crown lands eventually became Government lands, the provisions of the Great Mahele with respect to Government lands (i.e., that they be set 'apart forever to the chiefs and people of my Kingdom') automatically applied to the former Crown lands (OHA's Comments, p. 5). However, Article 95 of the 1894 Constitution (pursuant to which the former Crown lands became Government lands) specifically declared that the Crown lands were to be "...free and clear from any trust of or concerning the same..." [Emphasis supplied] (Thurston, p. 237). Although this language was primarily intended to terminate any trust in favor of Liliuokalani with respect to these lands (45 Ct.Cl. at 428-429), it is sufficiently broad so as to have barred the automatic creation of any new trust (in favor of the native Hawaiians) with respect to the Crown lands. Moreover, if OHA's interpretation of the provisions of the Great Mahele with regard to the Government lands is correct (i.e., that they automatically imposed a trust on the former Crown lands), then the provisions of Article 95 and the Act of June 7, 1848 (which adopted the

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provisions of the Great Mahele) could be viewed as being inconsistent. Since the 1894 Constitution was the fundamental law of Hawaii in 1894, its provisions took precedence over inconsistent provisions of preexisting statutes (see Article 91 of the 1894 Constitution (Thurston, p. 235); Ahlo v. Smith 8 Haaw. 420, 423 (1892)).

The provisions of the Great Mahele with respect to the Government lands became effective when adopted by the Act of June 7, 1848 (Hanifin, p. 28). Even assuming, arguendo, that the language of the 1848 Act was intended to create a trust with respect to the Government lands, the language of subsequent statutes (which concerned Government lands) is not consistent with a trust theory. For example, the Act of July 11, 1851 (1851) Hawaii Laws 52 (2 Revised Laws (1925) at 2196-2197) and the Act of July 6, 1853 [1853] Hawaii Laws 55 (2 Revised Laws (1925) at 2197) concerning the sale of Government lands did not provide that proceeds from the sale of Government lands were to be paid over to the native Hawaiians or deposited to their credit in a separate account in the Hawaiian Treasury (Compare cf. Ash Sheep Company v. United States, 252 U.S. 159, 165-166 (1920); United States v. Brindle, 110 U.S. 688, 693 (1884); and Colorado River Indian Tribes, et al. v. United States, 39 Ind.Cl.Comm. 42, 48-49 (1976) involving cessions of tribal land to the United States in trust which provided that the land be sold for the benefit of the tribe(s) making the cession and that the sales proceeds be paid over to the tribe(s) in question and, in one instance, that there be a semi-annual accounting of the sales proceeds.) Nor did subsequent statutes contain any provisions requiring proceeds from sales of Government land to be paid over to native Hawaiians (or set aside for them in the Treasury) or requiring periodic accountings of these receipts. In sum, the language of these subsequent statutes was, in effect, not consistent with the language of the Act of June 7, 1848, to the extent that the language of the 1848 Act may have been intended to create a trust as to the Government lands (Cf. Oni v. Meek, 2 Haw. 87 94-95 (1858) holding that a statute effected an implicit repeal of a prior inconsistent statute). Accordingly, these subsequent statutes could be viewed as effecting an implicit repeal of the 1848 Act to the extent that said Act may have imposed a trust on the Government lands.

Furthermore, the failure of a series of statutes to provide that proceeds from sales of Government lands be paid over to native Hawaiians or that periodic accountings of the sales receipts be rendered tends to negate the existence of any trust duties (compare cf. Aleut Community of St. Paul Island v. United States, 202 Ct. CI. 182, 196-198 (1973)). Failure of the Hawaiian legislature to so provide is significant in light of the fact that the Hawaiian law of trusts clearly recognized the duty of a trustee not to comingle trust funds with monies belonging to the trustee (In re Neville's Estate, 4 Haw. 289, 290-291 (1880)) and the duty of a trustee to account for receipts and profits from trust property (Jarrett v. Manini, 2 Haw. 667, 677 (1863)). In addition, the Land Law of 1895 provided that proceeds from the sale of public lands were to be set apart as a "special fund for the payment of the Bonded Indebtedness of the Government or for the purchase of other lands as provided by § 194" (Civil Laws of the Hawaiian Islands, Ch. 7, § 202 (1897)), rather than set apart for the use and benefit of the native Hawaiians or set apart to be paid over to the native Hawaiians.

If the Government and Crown lands had been held in trust, then the native Hawaiians would have held some title to these lands—namely a "beneficial" title (e.g., Colorado River Indian Tribes, et al. v. United States, 39 Ind.Cl.Comm. 42, 49

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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 States, 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 entity. This has nothing to do with the doctrine of "permissive use."

125/ 348 U.S. at 278-279. In such a situation there is an absence of a "definite intention by congressional action or authority to accord legal rights."

126/ Sac and Fox Tribe of Indians of Oklahoma v. United States, 161 Ct.Cl. 189, 192-193 (1963), cert. denied, 375 U.S. 921 (1963); and Northwestern Band of Shoshone Indians v. United States, 95 Ct.Cl. 642, 657-661, 681-684 (1942).

127/ Coos Bay, Lower Umqua, and Siuslaw Indian Tribes v. United States, 87 Ct. CI. 143, 153 (1938), cert. denied, 306 U.S. 653 (1939).

128/ This paragraph treats the native Hawaiians as an entity separate from the Hawaiian Government. See United States v. Mowat, 582 F 2d 1194, 1206 (9th Cir. 1978), cert. denied 439 U.S. 967 (1978) which implies that the native Hawaiians had no recognized title to the Crown and Government lands.

129/ After annexation there existed only one entity whose title 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 Stat. 750, which provides, in pertinent part:

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: Provided, 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.

Treaties of cession do not generally establish recognized title to ceded

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lands (Sioux Tribe, et al. v. United States, 205 Ct.Cl. 148, 171 (1974)).

131/ The legislative history is full of references to the native Hawaiian—"native population" (Sen. Doc. No. 214, 55th Cong., 2nd Sess. p. 8 (1898)); "native Hawaiians" (H.R. Rep. No. 1355, 55th Cong., 2nd Sess., pp. 43, 49, 56 (1898)); "native race," "aborigines," "natives" (31 Cong. Rec, pp. 5982, 6010, 6142, 6144, 6260, 6526, 6663, 6702 (1898)). [Emphasis supplied.)

132/ See H.R. Rep. No. 1355, 55th Cong., 2nd Sess. p. 49 (1898) (two paragraph discussion and definition of "native Hawaiians"); 31 Cong. Rec, p. 6189 (reference to "the Hawaiians proper," i.e., "full-blooded" and "part" Hawaiians, as one of three "important races"); and 31 Cong. Rec, p. 6573 (distinction drawn between "inhabitants of the Hawaiian Islands" and the "native Hawaiians").

133/ 31 Cong. Rec, pp. 6189, 6260-6261, 6526 (1898).

134/ Act of April 30, 1900, 31 Stat. 141 (1900).

135/ Section 73, 31 Stat. 141, 154.

136/ Act of May 17, 1884, 23 Stat. 24, 26.

137/ Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278 (1955).

138/ Ibid.

139/ Nor does Section 91 of the Organic Act of 1900 evidence any intention by Congress to grant native Hawaiians the right to use and occupy Crown and Government lands permanently.

140/ OHA's Comments, pp. 26-27. Similarly, Senator Inouye refers to the "historical treatment of land titles conferred by foreign governments to lands subsequently annexed by or ceded to the United States" (Senator Inouye's Comments, p. 39).

141/ E.g., Interstate Land Company v. Maxwell Land Grant Company, 139 U.S. 569, 588 (1891).

142/ See 45 Am Jur 2nd, International Law, $33 (1969). See also McMicken v. United States, 97 U.S. 204, 209 (1877): Hornaby v. United States, 77 U.S. (10 Wall.) 224, 234 (1869); and Fremont v. United States, 58 U.S. (17 How.) 542, 560 (1854).

143/ United States v. Fullard-Leo, et. al., 331 U.S. 256, 266 (1947); and Hornaby v. United States, 77 U.S. (10 Wall.) 224, 242 (1969).

144/ Thurston v. Bishop, 7 Haw. 421, 438 (1888); Kahoomana v. Moehonua, 3 Haw. 635, 639 (1875); and Kenoa v. Meek, 6 Haw. 63, 67 (1872).

145/ Liliuokalani v. United States, 45 Ct.Cl. 418, 426-428 (1910).

146/ Thurston v. Bishop, 7 Haw. 421, 438 (1888).

147/ State v. Zimring, 58 Haw. 106, 113 (1977). See also Senator Inouye's Comments (p. 41, note 20) which concur with this statement.

148/ Barker v. Harvey, 181 U.S. 481, 498-499 (1901) (property rights under Mexican law); Indians of California v. United States, 98 Ct. CI. 583, 591-592 (1942), cert. denied, 319 U.S. 764 (1943) (property rights under Mexican law); and Hayt v. United States, 38 Ct. CI. 455, 461-464 (1903) (property rights under Mexican law). Cf. Carino v. Insular Government of the Philippine Islands, 212 U.S. 449 (1909) (land claimed as property of

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an individual native of the Philippines found to have been segregated from public lands of the prior sovereign, Spain, and held protected under the Philippine Organic Act). See also, State of New Mexico v. Aamodt, 537 F.2d 1102, 1108- 1109 (10th Cir. 1976), cert, denied, 429 U.S. 1121 (1977) (Pueblo grants under Spanish and Mexican law). Under the Alaska Native Claims Settlement Act of 1971 the resolution of the existence of the Alaska Natives' claims did not rest on the existence of a valid claim under Russian law. Aleut Community of St. Paul Island v. United States, 27 Ind.Cl.Comm. 177, 181 (1972), aff'd, 202 Ct.Cl. 182 (1973).

149/ Barker v. Harvey, 181 U.S. 481, 498 (1901); Interstate Land Company v. Maxwell Land Grant Company, 139 U.S. 569, 588 (1891); and Fremont v. United States, 58 U.S. (17 How.) 542, 560-562 (1854). Cf. United States v. Chaves, 159 U.S. 452, 464 (1895); Hornsby v. United States, 77 U.S. (10 Wall.) 224, 238 (1869); and United States v. Pico, 72 U.S. (5 Wall.) 536, 540 (1866).

150/ See discussion above, p. 342.

151/ See discussion above, p. 342.

152/ United States v. Sioux Nation of Indians, 448 U.S. 371, 415, note 29 (1980).

153/ Cf. Caddo Tribe of Oklahoma v. United States, supra, 35 Ind. Cl.Comm. at 339.

154/ See, e.g., United States v. Creek Nation, 295 U.S. 103, 109-110 (1935); United States v. Klamath and Modoc Tribes of Indians, 304 U.S. 119, 124-125 (1938); and cf. Coast Indian Community v. United States, 213 Ct.Cl. 129, 147-148 (1977)).

155/ 31 Stat, at 159. [Emphasis added.]

156/ United States v. Fullard-Leo, et a.., 66 F. Supp. 782, 787 (D.C. Hawaii, 1944), aff'd 156 F.2d 756 (9th Cir. 1946), aff'd, 331 U.S. 256 (1947). [Emphasis added.]

The cited language shows that under Section 91 of the Organic Act the Territory of Hawaii was not merely an agent of the United States; therefore, such "agency" does not form the basis for a Fifth Amendment taking of the Government lands. Also, Inter-Island Steam Navigation Co. v. Territory of Hawaii, 305 U.S. 306 (1938), on which commenter relies makes reference only to Section 33 of the Organic Act, but no reference to Sections 73 or 91 of the Act.

157/ See 25 U.S.C. § 70(k). Similarly, the native Hawaiians cannot obtain compensation under Section 2 of the Indian Claims Commission Act because such claims must have been filed by 1951.

159/ MacKenzie, pp. 57, 61-62.

159/ United States v. Wheeler, 435 U.S. 313, 322-323 (1978). As to the applicability of principles of Indian law to native Hawaiians, see footnote 165, below.

160/ 435 U.S. at 326.

161/ 435 U.S. at 326. See also Oliphant v. Suquamish Indian Tribe, et al., 435 U.S. 191, 195 and 208-212 (1978).

162/ Montana v. United States, 450 U.S. 544, 564 (1981), rehearing denied, 452 U.S. 911 (1981).

163 450 U.S. at 564

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164/ Of course, the United States exercised no sovereignty over the Hawaiian Islands in 1893. Additionally, the native Hawaiians were represented in the Territorial Government. See preceding chapter above.

165/ United States v. Wheeler, 435 U.S. 313, 323 (1977). OHA submits that the concept of sovereignty as it relates to Indian tribes is not applicable to the claims of the native Hawaiians, because whereas Indian tribes were "domestic dependent" nations with only powers of a limited sovereignty (OHA's Comments, Alternate Chapter III, p. 15), the native Hawaiians were "citizens of an aboriginal nation with internal and external attributes of sovereignty" (OHA's Comments, p. 28). -One commenter notes that until 1898 Hawaii was a separate, independent sovereign. Another commenter suggests that Hawaiians have a "claim to self-determination as a sovereign people." While it is true that Indian tribes had only internal attributes of sovereignty, the salient fact remains that under traditional principles of Indian law, Indian tribes have not been allowed to recover for the loss of those attributes of sovereignty that they do possess, even under Section 2, Clause (5) of the Indian Claims Commission Act (25 U.S.C. §70 (a)) which encompasses "moral" claims (Confederated Tribes of the Colville Reservation v. United States, 25 Ind.Cl.Comm. 99, 103 (1971)). Moreover, native Hawaiians are citizens of the United States and the State of Hawaii, their sovereigns.

166/ Such matters are regarded as a political question. • See, e.g., Baker v. Carr, 369 U.S. 186, 212 (1962).

167/ See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 285 (1955). The Fifth Amendment provides that the United States shall not take property without just compensation.

168/ Confederated Tribes of the Colville Reservation v. United States, 25 Ind.Cl.Comm. 99, 104 (1971).

169/ Fort Sill Apache Tribe of the State of Oklahoma v. United States, 201 Ct.Cl. 630, 640-642 (1973).

170/ See Section 12 of the Act, 25 U.S.C. § 70(k).

171/ United States v. Mowat, 582 F.2d 1194, 1206-1207 (9th Cir. 1978), cert. denied, 439 U.S. 967 (1978).

172/ Inupiat Community of the Arctic Slope v. United States, Ct.Cl. ,680 F.2d 122, 129 (1982), cert. denied, 103 S.Ct. 299 (1982).

173/ Aleut Community of St. Paul Island v. United States, 202 Ct.Cl. 182, 195 (1973).

174/ OHA does not dispute this conclusion (OHA's Comments, Alternate Chapter III, p. 16) and concedes that "...no Constitutional or statutory provision requires the United States to recognize a claim for loss of sovereignty" (CHA's Comments, p. 29). However, OHA asserts that there may be a "moral duty on the part of the United States to provide reparations or restitution" (OHA's Comments, Alternate Chapter III, p. 16).

175/ MacKenzie, p. 57.

176/ E.g., United States v. Mitchell, 445 U.S. 535, 542-546 (1980), rehearing denied, 446 U.S. 992 (1980).

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177/ MacKenzie, pp. 85-86.

178/ Ibid., p. 87.

179/ United States v. Mitchell, 445 U.S. 535, 542-546 (1980), rehearing denied, 446 U.S. 992 (1980); Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct.Cl. 790, 797-800 (1970), cert. denied, 400 U.S. 819 (1970); White v. Califano, 437 F. Supp. 543, 554-555 (D.C.S.D. 1977), aff'd 581 F.2d 697 (8th Cir. 1978); Confederated Tribes of the Colville Reservation v. United States, 25 Ind.Cl.Comm. 99, 107 (1971); and Creek Nation v. United States, 20 Ind.Cl.Comm. 44, 60 (1968).

OHA cites Duncan v. United States, 667 F.2d 36 (1981) in support of its comment that the draft report erred in stating that fiduciary relationships can arise only under a treaty, statute, or agreement. However, certiorari has been granted in the buncan case; the decision of the Supreme Court on review is anticipated in the Spring of 1983. OHA also cites White v. Califano, 437 F.Supp. 543 (D.C.S.D. 1977), aff'd 581 F.2d 697 (8th Cir. 1978). However, the district court's finding of a fiduciary relationship was based upon Congress' declaration of policy found in the Indian Health Care Act, 25 U.S.C. §1601, et seq. (437 F.Supp. at 554-555). The policy declaration referred to the nation's "fulfillment of its special responsibilities and legal obligations to the American Indian people."

180/ Importantly, courts regard the determination of who is the sovereign of a country as a political question left to the determination of the political departments of government. Oetjen v. General Leather Co., 246 U.S. 297, 302 (1918); see also Baker v. Carr, 369 U.S. 186, 212 (1962). Regardless of whether the Hawaiian Government was in place during the 1890's because of the United States' influence, as long as the United States did not consider itself the sovereign of Hawaii it was not the sovereign. Therefore, the views of commenters that the Hawaiian Government of 1897-1898 was illegitimate does not change the foregoing analysis. See also United States v. Mowat, 582 F.2d 1194, 1206-1207 (9th Cir. 1978), cert. denied, 439 U.S. 967 (1978), which rejected the argument that the Joint Resolution of Annexation was illegal because its use was made possible by the Provisional Government that was allegedly a revolutionary and illegal government. Similarly, the "alleged illegality of the quitclaim ceremony of 1897" (see comments of Louis Agard, p. 25 and other commenters) was in fact the Hawaiian legislature's adoption of the law approving annexation and was perfectly lawful.

181/ Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-18 (1832).

182/ One commenter states that the "primary source from which a trust duty arises" is the "role of the United States and its agents in overthrowing the Hawaiian Government and the subsequent acquisition of almost 1.75 million acres of native land;" a "wrongdoing" that the United States never acknowledged (CHA's Comments, p. 30). It is further contended that "once the wrong was acknowledged, a duty would arise" (OHA's Comments, p. 30). Other commenters gave similar views in more general terms.

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This theory simply ignores the fact that since the Federal Government did not have sovereignty over the Hawaiian Islands prior to 1898, no fiduciary relationship could have existed with the native Hawaiians. Furthermore, acts of the Federal Government that might be deemed less than "fair and honorable" within the meaning of Section 2, Clause (5) of the Indian Claims Commission Act (the "fair and honorable dealings" clause) do not give rise to any fiduciary duty (Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct. CI. 790, 800 (1970), cert. denied, 400 U.S. 819 (1970)).

183/ Cf. Aleut Community of St. Paul Island v. United States, 202 Ct.Cl. 182, 196-198 (1973). Here the Court of Claims found that a "special relationship" (under Clause (5) of Section 2 of the Indian Claims Commission Act) existed between plaintiffs and the United States by virtue of duties assumed in statutes that consistently referred to "natives" or "native inhabitants" of the Pribilof Islands.

184/ See Navajo Tribe<u> v. <U>United States, 224 Ct.Cl. 171, 183-185 (1980). See also, to the same effect, American Indians Residing on the Maricopa Ax-Chin Reservation v. United States, ; Ct.Cl. , 667 F.2d 980, 990 (1981), cert. denied, 102 S.Ct. 2269 (1982).

185/ Navajo Tribe v. United States, 224 Ct.Cl. 171, 183-185 (1980).

186/ Act of July 9, 1921, 42 Stat. 108.

187/ Act of March 18, 1959, 73 Stat. 4.

188/ OHA's Comments, p. 30; Comments of Clarence Kamai.

<u>189/ The correctness is in doubt in light of Section 5 of the Admission Act discussed in the text above.

190/ See, e.g., United States v. Oneida Nation of New York, 217 Ct.Cl. 45, 55-59 (1978).

191/ Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct.Cl. 790, 800 (1970), cert. denied, 400 U.S. 819 (1970).

192/ 22 Op. Att'y Gen. 574, 576 (1899).

193/ United States v. Mitchell, 445 U.S. 535, 542 (1980), rehearing denied, 446 U.S. 992 (1980). Section 99 of the Organic Act (31 Stat, at 161) provided that the Crown Lands were "free and clear" of any trust.

194/ Compare with the situation in United States v. Oneida Nation of New York, 217 Ct.Cl. 45 (1978). There the Court of Claims held that there was a "special relationship" (under Clause (5) of Section 2 of the Indian Claims Commission Act) between the Federal Government and the Oneida Nation. The court held that by virtue of a 1784 treaty in which the Federal Government had promised to protect the Oneidas in the possession of the lands they occupied as of 1784, the United States had assumed a fiduciary relationship with the Oneida Nation with respect to such lands.

195/ Some commenters suggest there a close analogy between Alaska Native claims and Hawaiian native claims.

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196/ Regarding the history of native claims in Alaska, see generally United States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1014-1019 (D. Alaska, 1977), aff'd 612 F.2d 1132 (9th Cir. 1980), cert, denied, 449 U.S. 888 (1980).

197/ One commenter states that the United States acquired fee title to over fifty percent of the land in Hawaii upon annexation and that, by contrast, the Federal Government obtained fee title to much less than fifty percent of the land in Alaska when it purchased Alaska in 1867. In fact, by the Treaty of Cession in 1867, the United States acquired well over 90% of the land in Alaska, and continues to hold over 90% of Alaska land.

198/ Alaska Statehood Act, P.L. No. 85-508, 72 Stat. 339, as amended, 73 Stat. 141, 48 U.S.C. Chapter 2.

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