Nhsc-v1-360

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nhsc-v1-360

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89/ Ibid. The contention that the Hawaiian Government was the "single landowning entity," for aboriginal title purposes has been addressed previously (see pp. 336 to 337 above).

90/ OHA asserts "...the title held by native Hawaiians may have been not only aboriginal in nature, but also a formal, vested title" (OHA's Comments, Alternate Chapter III, p. 12). The alleged "communal rights of native Hawaiians" to the Crown and Government lands (supposedly granted by the 1840 Constitution and confirmed by the Great Mahele) are equated with land titles conferred by foreign governments (e.g., such as titles conferred by Spanish land grants). (Senator Inouye's Comments, pp. 39-40.) Thus, Senator Inouye, too, is effectively asserting that title to the Government and Crown lands was in the native Hawaiians.

91/ OHA's Comments, p. 26. Again, OHA states that the native Hawaiians and the Hawaiian Government are not separate entities. The following discussion in the text also responds to the views of Keith S. Abe.

92/ Thurston v. Bishop. 7 Haw. 421, 437-438 (1888); Harris v. Carter, 6 Haw. 195, 201 (1877); and Kenoa v. Meek, 6 Haw. 63, 65 (1872). See also Hanifin, pp. 16-18.

It should be noted that ownership of the Crown lands was in the king. In the Matter of the Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864). The Court of Claims held that the Crown lands belonged to the office of the sovereign rather than the sovereign as an individual and became Government lands when the monarchy ceased to exist in 1893. Liliuokalani v. United States, 45 Ct.Cl. 418, 426-428 (1910).

93/ Act of July 11, 1851 [1851] Hawaii Laws 52 (2 Revised Laws (1925) at 2196)).

94/ There were also other statutes providing for sale of Government land t the people; e.g., 1874 Session Laws, CY 24; 1876 Session Laws, Ch. 44 and 1878 Session Laws Ch. 5; and 1884 Session Laws, Ch. 45; cited by Hanifin, p. 16,

95/ Thurston v. Bishop, 7 Haw. 421, 437-438 (1888).

96/ Indian law recognizes that individual members of a tribe have the right to use tribal property. 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).

97/ Hobbs, p. 41, note 17.

98/ OHA asserts that the title to the Crown and Government lands "held by native Hawaiians may have been not only aboriginal in nature, but also a formal, vested title" (OHA's Comments, Alternate Chapter III, p. 12). In addition, OHA contends that: (1) the native Hawaiians and the Hawaiian Government were one and the same entity insofar as holding title to the subject lands is concerned; and (2) the Great Mahele operated so as to vest a "formal title" to said lands in the Hawaiian Government (OHA's Comments, pp. 23, 25-26). Also, Senator Inouye alleges, in effect, that the 1840 Constitution granted the native Hawaiians' title to the Crown and Government lands (Senator Inouye's comments, pp. 39-41).

99/ Daws, p. 125, and Hobbs, p. 29. The Hawaiian Supreme Court held in 1977 that the 1840 Constitution "acknowledged that the people of Hawaii are the original owners of all Hawaiian land," State v. Zimring, 58 Haw. 106, 111 (1977). The Zimring opinion ignores the fact that the 1840 Constitution was repealed by the 1852

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