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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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