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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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