Nhsc-v1-363

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nhsc-v1-363

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provisions of the Great Mahele) could be viewed as being inconsistent. Since the 1894 Constitution was the fundamental law of Hawaii in 1894, its provisions took precedence over inconsistent provisions of preexisting statutes (see Article 91 of the 1894 Constitution (Thurston, p. 235); Ahlo v. Smith 8 Haaw. 420, 423 (1892)).

The provisions of the Great Mahele with respect to the Government lands became effective when adopted by the Act of June 7, 1848 (Hanifin, p. 28). Even assuming, arguendo, that the language of the 1848 Act was intended to create a trust with respect to the Government lands, the language of subsequent statutes (which concerned Government lands) is not consistent with a trust theory. For example, the Act of July 11, 1851 (1851) Hawaii Laws 52 (2 Revised Laws (1925) at 2196-2197) and the Act of July 6, 1853 [1853] Hawaii Laws 55 (2 Revised Laws (1925) at 2197) concerning the sale of Government lands did not provide that proceeds from the sale of Government lands were to be paid over to the native Hawaiians or deposited to their credit in a separate account in the Hawaiian Treasury (Compare cf. Ash Sheep Company v. United States, 252 U.S. 159, 165-166 (1920); United States v. Brindle, 110 U.S. 688, 693 (1884); and Colorado River Indian Tribes, et al. v. United States, 39 Ind.Cl.Comm. 42, 48-49 (1976) involving cessions of tribal land to the United States in trust which provided that the land be sold for the benefit of the tribe(s) making the cession and that the sales proceeds be paid over to the tribe(s) in question and, in one instance, that there be a semi-annual accounting of the sales proceeds.) Nor did subsequent statutes contain any provisions requiring proceeds from sales of Government land to be paid over to native Hawaiians (or set aside for them in the Treasury) or requiring periodic accountings of these receipts. In sum, the language of these subsequent statutes was, in effect, not consistent with the language of the Act of June 7, 1848, to the extent that the language of the 1848 Act may have been intended to create a trust as to the Government lands (Cf. Oni v. Meek, 2 Haw. 87 94-95 (1858) holding that a statute effected an implicit repeal of a prior inconsistent statute). Accordingly, these subsequent statutes could be viewed as effecting an implicit repeal of the 1848 Act to the extent that said Act may have imposed a trust on the Government lands.

Furthermore, the failure of a series of statutes to provide that proceeds from sales of Government lands be paid over to native Hawaiians or that periodic accountings of the sales receipts be rendered tends to negate the existence of any trust duties (compare cf. Aleut Community of St. Paul Island v. United States, 202 Ct. CI. 182, 196-198 (1973)). Failure of the Hawaiian legislature to so provide is significant in light of the fact that the Hawaiian law of trusts clearly recognized the duty of a trustee not to comingle trust funds with monies belonging to the trustee (In re Neville's Estate, 4 Haw. 289, 290-291 (1880)) and the duty of a trustee to account for receipts and profits from trust property (Jarrett v. Manini, 2 Haw. 667, 677 (1863)). In addition, the Land Law of 1895 provided that proceeds from the sale of public lands were to be set apart as a "special fund for the payment of the Bonded Indebtedness of the Government or for the purchase of other lands as provided by § 194" (Civil Laws of the Hawaiian Islands, Ch. 7, § 202 (1897)), rather than set apart for the use and benefit of the native Hawaiians or set apart to be paid over to the native Hawaiians.

If the Government and Crown lands had been held in trust, then the native Hawaiians would have held some title to these lands—namely a "beneficial" title (e.g., Colorado River Indian Tribes, et al. v. United States, 39 Ind.Cl.Comm. 42, 49

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