Nhsc-v1-343

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nhsc-v1-343

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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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