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Claims for compensation for loss of sovereignty, on the other hand, have been made under several laws, this chapter will first look at the legal concept of sovereignty, then consider the native Hawaiian experience under that concept. The chapter will then examine each of the laws under which claims for loss of sovereignty have been made.
Finally, this chapter will look at whether any special trust relationship exists between the United States and the native Hawaiians that would be a basis for compensation. It will then compare the native Hawaiian claims to the Alaska Native claims.
While this chapter must cover technical and legal material, summaries at the beginning and end of each portion of the chapter will make clear the context in which those legal points are considered.
B. ABORIGINAL TITLE AND COMPENSATION
Aboriginal title is a concept developed in the law to provide a basis for a native group that does not have traditional, legally-accepted land ownership rights to establish a claim to land based on use and occupancy thereof where the sovereign (an entity separate and distinct from the native group) has the underlying fee to said land. It is generally defined as title derived from the use and occupancy of land from time immemorial. 5/ Under the law, a number of specific tests have developed that a native group must meet in order to establish that it has aboriginal title to a tract of land: the group must be "a single landowning entity;" 6/ there must be actual 7/ and exclusive use and occupancy 8/ of the land; the use and occupancy must be of a defined area; 9/ and the land must be used and occupied for a long time before aboriginal title was extinguished. 10/
If the native Hawaiians meet the tests for holding aboriginal title, to be entitled to compensation from the United States the title must have been extinguished by the government of the United States, not by the government of Hawaii, before the United States annexed Hawaii. 11/ Finally, even if the aboriginal title was terminated by the United States, some law must give the native Hawaiians a right to compensation for loss of aboriginal title, since without such a law there is no right to such compensation. 12/ The following sections will analyze each of these requirements to determine: whether the native Hawaiians had aboriginal title to portions of the land in Hawaii; whether the United States extinguished that title; and whether the native Hawaiians are entitled to compensation for loss of that title.
Did the Native Hawaiians Have Aboriginal Title to the Crown and Government Lands?
To establish aboriginal title to the Crown and Government lands, native Hawaiians must meet each of the tests for such title set forth above. 13/
Under present law, the native Hawaiians as a group (without determining what persons would qualify as native Hawaiians) meet some but not all parts of the test to be a single landowning entity. 14/ Courts have held that, even in the absence of political cohesion, Indians having a common culture, common language, ties of kinship, economic ties, treated by the sovereign as having collective rights in the area claimed, and having common use of a claimed area, constituted a single landowning entity, 15/ The native Hawaiians were a group with a common culture, language, and ties of kinship.
Their economic ties in the nineteenth century are less apparent, since commoners were free to move from one ahupua'a to another, and since, during that century, many native Hawaiians left the land to work for
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