Nhsc-v1-352

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nhsc-v1-352

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EXISTING LAW, NATIVE HAWAIIANS, AND COMPENSATION

NOTES

1/ Melody K. MacKenzie, Sovereignty and Land: Honoring the Hawaiian Native Claim (Honolulu: Office of Hawaiian Affairs, 1982), pp. 75-79.

2/ Patrick Hanifin's comments were in the form of a detailed article that is scheduled to be published in the Hawaii Bar Journal in the Spring of 1983. The article is entitled "Hawaiian Reparations: Nothing Lost, Nothing Owed."

3/ This chapter looks at rights under present law only; it does not address whether Congress or the State Legislature should consider enacting new laws in these matters. Further, in response to comments received by the Commission, we reiterate that the chapter looks only at whether native Hawaiians have present legal rights to compensation. It does not address whether the United States' conduct in Hawaii at the end of the nineteenth century was proper, moral, or legal, or what account of it the United States should make. Those matters are left for the Conclusions and Recommendations section of the Report.

4/ Some comments received by the Commission on its Draft Report stated that the tone of this chapter is improperly adversarial. The chapter attempts to address the full range of views on the matters it covers; the approach is intended to be comprehensive rather than adversarial. Other commenters stated that comparisons of native Hawaiians to North American Indians, Eskimos, and Alaskan Natives were not appropriate. However, we have examined the experiences of and the laws applicable to these groups whose experience as native groups provides some similarities to the experience of native Hawaiians. Congressman Cecil Heftel, in his comments and other commenters recognize the use of such analogies or rely upon such analogies.

5/ Inupiat Community of the Slope v. United States, __ Ct.Cl. __, 680 P.2d 122, 128 (1982), cert. denied, 103 S. Ct. 299 (1982).

6/ E.g., Northern Paiute Nation, et. al. v. United States, 7 Ind.Cl.Comm. 322, 412 (1959), aff'd, 183 Ct.Cl. 321 (1968).

7/ Quapaw Tribe v. United States, 128 Ct.Cl. 45, 49 (1954).

8/ United States v. Seminole Indians, 180 Ct.Cl. 375, 383 (1967).

9/ Ibid.

10/ Ibid.

11/ Caddo Tribe of Oklahoma v. United States, 35 Ind.Cl.Comm. 321, 339 (1975). One commenter (on the Draft Report) emphasized the view that the native Hawaiians held aboriginal title to Government and Crown lands as of 1898 and that this title was extinguished by the United States when annexation occurred (Melody K. MacKenzie, Comments on the Native Hawaiians Study Commission Draft Report, (November 1982), p. 25; hereinafter cited as "OHA's Comments").

12/ Claims in the absence of such a law are barred by the doctrine of sovereign immunity.

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