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13/ In a draft alternate to this chapter, OHA comments that the native Hawaiians are "not asserting aboriginal title claims to Government and Crown lands which passed into fee simple ownership" (OHA's Comments, Alternate Chapter III, p. 7.) About 720,000 acres of Government and Crown lands passed into fee simple ownership before 1898 (see discussion, above, page 335 to 336, and Levy, Native Hawaiian Land Rights, 63 Calif. L. Rev. 848, 859 (1975)).

14/ The requirement of a single landowning entity is discussed fully in the cases cited below in footnote 15.

15/ Confederated Tribes of the Warm Springs Reservation v. United States, 177 Ct.Cl. 184, 206-207 (1966); Nooksack Tribe v. United States, 3 Ind.Cl.Comm. 479, 494-495 (1955), aff'd, 162 Ct.Cl. 712 (1963), cert. denied, 375 U.S. 993 (1964); and Muckleshoot Tribe v. United States, 3 Ind.Cl.Comm. 658, 674-675 (1955), aff'd in part, vacated in part on other grounds, 174 Ct.Cl. 1283 (1966), cert. denied, 385 U.S. 847 (1966).

16/ Levy, p. 859.

17/ Jon J. Chinen, The Great Mahele; Hawaii's Land Division of 1848 (Honolulu: The University Press of Hawaii, 1974), p. 5.

18/ Gavan Daws, Shoal of Time; A History of the Hawaiian Islands, (New York: The MacMillan Company, 1968), pp. 124-5; see also above, chapter entitled "Diplomatic and Congressional History: From Monarchy to Statehood."

19/ Morris, The Land System of Hawaii, 21 ABA Journal 649, 650 (1935).

20/ Levy, pp. 854-855.

21/ Some commenters objected to the use of feudal terms in referring to native Hawaiians* land ownership patterns. The terms are used here to assist those who are not native Hawaiians in understanding land ownership patterns.

22/ Levy, pp. 855-857. The paper submitted to the Commission by the Office of Hawaiian Affairs, "Regarding the Legal Aspects," written by Melody MacKenzie and Jon Van Dyke, contends that although the Kuleana Act allowed individual native Hawaiians to obtain fee simple title to Crown or Government lands that they actually cultivated or Government lands they purchased, it did not extinguish the "people's" interest in the Crown and Government lands. See the discussion above, pages 335 to 336, and footnote 13, above. The MacKenzie/Van Dyke paper is reproduced in its entirety in the Appendix of this Report.

23/ Daws, p. 124.

24/ Levy, p. 857.

25/ Ibid., p. 859.

26/ Ibid.

27/ Ibid., p. 852, note 26.

28/ H. Rodger Betts, Report on the Hawaiian Native Claims, Second Draft (1978), p. 15. One comment received by the Commission states that the 1840 Constitution affirms that the native Hawaiians had aboriginal title to the Government and Crown lands.

29/ Chinen, The Great Mahele, pp. 25-29. Betts concedes that the lands at issue did not encompass 2,500,000 acres by 1898 (Betts, p. 15). Indeed, Congress believed that the "public lands" in Hawaii totaled only 1,740,000 acres. (H.R. Rep. No. 1355, 2nd Sess., p. 43 (1898)). MacKenzie states that the lands at issue total 1.75 million acres.


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