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dramatic decline. Moreover, since the native Hawaiians did not have a nomadic culture, actual and exclusive use and occupancy of the extensive area of Crown and Government lands is even more difficult to establish. 54/
The final test for aboriginal title is that the use and occupancy must have continued for a long time before being extinguished. Prior to the Great Mahele, given the system of occupancy by chiefs, rather than by the people in common, 55/ it is doubtful if common use and occupancy by all native Hawaiians existed. Between the time of the Great Mahele in 1848 and 1893, much of the Government and Crown land was converted to fee simple ownership by non-natives and natives, and much of this land was used by non-natives. Thus, it does not appear that common use and occupancy of the Crown and Government lands by all native Hawaiians existed between 1848 and 1898. 56/
It cannot be established, therefore, that the native Hawaiians meet the above three tests for showing the existence of aboriginal title.
Did the United States Extinguish Whatever Aboriginal Title Existed?
The assertion was made in a comment received by the Commission that aboriginal title to the Crown and Government lands still existed in 1898 and was extinguished by the United States by means of the Joint Resolution of Annexation. 57/ This comment rests in large part on the premise that during the period between the establishment of the Provisional Government in 1893 and 1898 aboriginal title was not extinguished, "...since only voluntary abandonment of these lands by native Hawaiians would divest native Hawaiians of aboriginal title." 58/ The statement that the aboriginal title of the native Hawaiians could only be extinguished by voluntary abandonment assumes that the Hawaiian Government was the single landowning entity for purposes of holding aboriginal title. Under traditional principles of Indian law, aboriginal title can be extinguished by voluntary abandonment or by actions of the sovereign that are inconsistent with the existence of aboriginal title. 59/ If the Hawaiian Government was not the single landowning entity, then the Hawaiian Government as sovereign (that is, as an entity separate from the native Hawaiians) took actions that were inconsistent with the existence of aboriginal title and that extinguished said title. If the Hawaiian Government was the single landowning entity, then these same actions, in effect, constituted a voluntary abandonment of aboriginal title. 60/
The facts of land ownership in Hawaii underscore that even if the tests for aboriginal title had been met, such title was extinguished by actions of the Hawaiian Government before 1893 (that is, actions of the sovereign that were inconsistent with aboriginal title) and certainly before annexation, which is the first time the United States assumed sovereignty. The Kuleana Act of 1850 terminated the right of pasturage and the right of commoners to grow crops on unoccupied lands of the ahupua'a. 61/ Other Hawaiian legislative acts had the effect of allowing foreigners to purchase Government lands. By 1893, over 600,000 acres of Government land had been sold to foreigners (non-natives) and 752,431 acres of Government and Crown lands had been leased to foreigners. 62/ By thus having "asserted and exerted full dominion" over Crown and Government lands, the government of Hawaii (which as sovereign had the authority to extinguish aboriginal title) had taken actions specifically inconsistent with the continued existence of aboriginal title. 63/ Legislation enacted by the
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