Nhsc-v1-344

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nhsc-v1-344

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provision is similar to a clause in Alaska's Organic Act, which at Section 8 provides, in part:

...That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress...136/

The Supreme Court has held that this provision of the Alaska Organic Act did not indicate "any intention by Congress to grant to the Indians permanent rights in the lands of Alaska occupied by them by permission of Congress." 137/ Rather, the Alaska Organic Act was designed "merely to retain the status quo until further congressional or judicial action was taken." 138/ The Hawaiian Organic Act must be similarly considered not to grant a permanent right of use and occupancy in Crown and Government lands to native Hawaiians. Further, uniike the Alaska Act, the Hawaii Act does not refer to natives. 139/

Some comments received by the Commission assert as a sort of corollary in support of the recognized title claim that the United States has followed a consistent policy of respecting "...property rights of native people recognized under prior governments. Congress and the courts have long respected grants to native peoples under the laws of another sovereign." 140/

It is an established principle of international law that private property rights in territory ceded by one nation to another are not affected by the change of sovereign and are entitled to protection. 141/ This rule would apply if the claimed property of native Hawaiians was considered as having been segregated from the public domain of the prior sovereign before the annexation of Hawaii. 142/ It is necessary to examine the law of the prior sovereigr before the cession (that is, Hawaiian law) in order to determine whether th< claimed property was regarded as having been separated from the public domain of the prior sovereign. 143/

Government lands that were not awarded by the Board of Land Commissioners (or by the Minister of the Interior) were considered to belong to the Hawaiian Government. 144/ The Crown lands became Government lands in 1893 after the monarchy ceased to exist. 145/ Lands that belonged to the Hawaiian Government were considered as comprising the "public domair." 146/ Since title to the Government lands was in the Hawaiian Government, it follows that the Government (and former Crown) lands were part of the public domain. 147/ Thus, the rule of international law invoked is not applicable to the Crown and Government lands. Even the claimed property rights of native groups are not protected by this rule in those instances where the property in question was not considered as having been separated from the public domain of the prior sovereign. 148/

Moreover, the test traditionally used to determine whether the cited rule of international law is applicable to a claimed private property right is whether said right constituted a "vested" interest under the law of the prior sovereiqn before the cession of territory in question. 149/ Prior to annexation, the Constitution of 1840 was not construed as operating to create a vested private interest in the Government and Crown lands. Furthermore, the Constitution of 1840 was repealed by the 1852 Constitution. 150/ Nor was the Great Mahele interpreted as granting a vested private interest in the subject lands to the native

-p344-

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