Nhsc-v1-340

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nhsc-v1-340

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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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