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Hawaiians. 151/ Accordingly, the native Hawaiians did not have a "vested" interest in the Government and Crown lands under pre-annexation Hawaiian law.

If recognized title is not established, no compensation is due under the Fifth Amendment. 152/ Even if the native Hawaiians had been accorded recognized title by some action of the United States Congress, they cannot be compensated for the loss of that title. Any actions of the United States before 1898 cannot constitute a compensable claim under the Fifth Amendment for a "taking" of the Government and Crown lands without compensation, because the United States did not have sovereignty over the Hawaiian Islands prior to 1898. 153/ Annexation itself was not a taking under the requirements of the Fifth Amendment because it was not an appropriation of the Crown and Government lands for use by the Federal Government, pursuant to a Congressional authorization. 154/ Section 91 of the Organic Act of 1900 confirms this fact by providing that the "public property" (Crown and Government lands) ceded to the United States under the Joint Resolution of Annexation:

...shall be and remain in the possession, use and control of the government of the Territory of Hawaii, and shall be maintained, managed and cared for by it, at its own expense, until otherwise provided by Congress, or taken for the uses and purposes of the United States by direction of the President or of the governor of Hawaii. 155/

Section 91 (in conjunction with Section 73, which authorized the Territory of Hawaii to sell, exchange, and lease the public lands) has been imposed as follows:

Those provisions [Sections 73 and 91] did not create a mere agency on the part of the Territory to act for the Federal Government. They constitute a delegation of legislative power from Congress to the Territory. Conveyances made pursuant to the power are not conveyances of the United States of America executed by the territorial officers as agents, but they are conveyances of and by the Territory in its own right pursuant to the Acts of Congress. This follows from the fact that the Territory has complete possession and control of the public lands with the power to dispose of them. 156/

Therefore, the native Hawaiians would not be entitled to Fifth Amendment compensation for loss of recognized title, if it were established. 157/

In sum, Congress must grant recognized title, not the government of Hawaii. Moreover, the United States could not have granted such recognized title before 1898 because it did not have sovereignty over the Hawaiian Islands. The actions it took in and after 1898—particularly annexation and passage of the Organic Act of 1900—did not create recognized title, because they did not grant the native Hawaiians the right to use and occupy the Government and Crown lands permanently. Even if recognized title were established, under the facts of the Hawaiian experience, loss of that title would not be compensable under either the Fifth Amendment to the , United States Constitution or under the Indian Claims Commission Act. Under present law, therefore, the native Hawaiians have no legal right to compensation for loss of their land.


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