Nhsc-v1-336

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nhsc-v1-336

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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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