Nhsc-v1-355

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nhsc-v1-355

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42/ 1880 Session Laws, p. 56; cited by Hanifin, p. 18, note 16.

43/ Thurston v. Bishop, 7 Haw. 421, 438 (1888).

44/ Indian law recognizes that individual members of a tribe have the right to use tribal property. See e.g., United States v. Cook, 86 U.S. (19 Wall.) 591, 593 (1873); and Whitefoot v. United States, 155 Ct.Cl. 127, 133-135 (1961), cert. denied, 369 U.S. 818 (1962). Cf. United States v. Jim, 409 U.S. 80,82 (1972), rehearing denied, 409 U.S. 1118 (1973).

45/ OHA's Comments, p. 28.

46/ Cherokee Nation v. <u?Georgia</u> 30 U.S. (5 Pet.) 1, 16-18 (1832); and Johnson v. Mcintosh, 21 U.S. (8 Wheat.) 543, 572-574 (1823).

47/ Confederated Tribes of the Warm Springs Reservation v. United States, supra; Sac and Fox Tribe of Indians of Oklahoma 161 Ct.Cl. 189, 201-202 (1963), cert. denied, 375 U.S. 921 (1963).

48/ It is argued that aboriginal title existed as of 1893 and/or 1898; see Betts, p. 14, MacKenzie, pp. 76 and 78.

49/ Confederated Tribes of the Warm Springs Reservation v. United States, supra, 177 Ct.Cl. at 194. To prove the existence of aboriginal title it must be shown that such title was not lost or abandoned prior to the alleged date of extinguishment. Confederated Tribes of the Umatilla Indian Reservation v. United States, 14 Ind.Cl.Comm. 14,116 (1964).

50/ Quapaw Tribe v. United States, 128 Ct.Cl. 45, 48-49 (1954).

51/ Quapaw Tribe v. United States, 1 Ind.Cl.Comm. 469, 488 (1951), aff'd in part, rev'd in part on other grounds, 128 Ct. CI. 45 (1954). OHA states that "Native Hawaiians advance no argument as to 'constructive possession' of Government and Crown lands" (OHA's Comments, p. 23).

52/ Puyallup Tribe v. United States, 17 Ind.Cl.Comm. 1, 23-24 (1966). It appears that the Government and Crown lands constituted a defined area—one of the tests for aboriginal title.

53/ 31 Cong. Rec, p. 6261 (1898).

54/ Cf. Caddo Tribe of Oklahoma v. United States, 4 Ind.Cl.Comm. 218-219 (1956), appeal dismissed, 140 Ct.Cl. 63 (1957).

55/ See footnote 18, above; Jean Hobbs, Hawaii: A Pageant of the Soil (Stanford, Calif: Stanford University Press, 1935), pp. 4-6 and 12-16.

56/ OHA comments that notwithstanding the conversion of much land to "individual fee-simple ownership," the Government and Crown lands were "maintained as lands held by the Hawaiian Kingdom for the chiefs and people in common" (OHA's Comments, p. 24). In addition, OHA states: "One indication of the collective rights in these lands was the specific recognition of native rights of gathering and access on Government and Crown lands" (OHA's Comments, p. 24) The first assertion refers to OHA's contention that the argument concerning extinguishment of aboriginal title is "irrelevant" because the Mahele confirmed the title to the Crown and Government lands in the Hawaiian Government and thus, in effect, confirmed the title in the native Hawaiians. This assertion is addressed in Part C of this chapter. The second contention ignores that portion of the Kuleana Act of 1850 that terminated the rights of native

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