Nhsc-v1-364

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nhsc-v1-364

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(1976)). Yet neither the landmark decision in Thurston v. Bishop, 7 Haw. 421 (1888) (interpreting the 1840 Constitution) nor the other decisions discussed previously (interpreting the Great Mahele) hold that the native Hawaiians held a "beneficial" title to the Government and Crown lands. This is especially significant in light of the fact that the Hawaiian law of trusts expressly recognized the concept of "beneficial" title to land (Kanoelehua v. Cartwright, 7 Haw. 327, 329-330 (1888); £f_. Montgomery v. Montgomery, 2 Haw. 563, 569 (1862)). Presumably, if the Hawaiian Supreme Court had believed that the native Hawaiians had a beneficial title, it would have so held.

Finally, native Hawaiians do not point to any suits prior to annexation alleging a violation of some fiduciary duty of the Government with respect to the Government and/or Crown lands. Yet there is no doubt that up to 1892 such a suit could have been filed in the Hawaiian Supreme Court (which had original equity jurisdiction until 1892) and, thereafter, in the First Circuit Court (In re Bishop's Estate, 11 Haw. 33 (1897)).

121/ OHA's Comments, p. 26. As noted, this argument assumes that the native Hawaiians and the Hawaiian Government are one and the same entity.

122/ MacKenzie, pp. 83-85.

123/ Sac and Fox Tribe of Indians of Oklahoma v. United States, 161 Ct. CI. 189, 192, 197 (1963), cert. denied, 375 U.S. 921 (1963).

124/ Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278-279 (1955). This analogy is apt since the Hawaiian Government and native Hawaiians are alleged to be one and the same entity. This has nothing to do with the doctrine of "permissive use."

125/ 348 U.S. at 278-279. In such a situation there is an absence of a "definite intention by congressional action or authority to accord legal rights."

126/ Sac and Fox Tribe of Indians of Oklahoma v. United States, 161 Ct.Cl. 189, 192-193 (1963), cert. denied, 375 U.S. 921 (1963); and Northwestern Band of Shoshone Indians v. United States, 95 Ct.Cl. 642, 657-661, 681-684 (1942).

127/ Coos Bay, Lower Umqua, and Siuslaw Indian Tribes v. United States, 87 Ct. CI. 143, 153 (1938), cert. denied, 306 U.S. 653 (1939).

128/ This paragraph treats the native Hawaiians as an entity separate from the Hawaiian Government. See United States v. Mowat, 582 F 2d 1194, 1206 (9th Cir. 1978), cert. denied 439 U.S. 967 (1978) which implies that the native Hawaiians had no recognized title to the Crown and Government lands.

129/ After annexation there existed only one entity whose title to the Government and Crown lands could, in theory, have been recognized—namely, the native Hawaiians as a group.

130/ See Joint Resolution No. 55 of July 7, 1898, 30 Stat. 750, which provides, in pertinent part:

The existing laws of the United States relative to public lands shall not apply to such lands [the ceded lands] in the Hawaiian Islands; but the Congress shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same...[with certain exceptions] shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.

Treaties of cession do not generally establish recognized title to ceded

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