addition, it is asserted that there is no distinction to be made between the native Hawaiians and the Hawaiian Government and that they were one and the name, insofar as holding recognized title to the Crown and Government lands is concerned. 89/ Thus, it is alleged, in effect, that the Mahele operated to vest title to the Government and Crown lands in the native Hawaiians. 90/
Part two of the recognized title argument is that the United States recognized and acknowledged the rights of the Hawaiian Government to its own lands: "...the United States by recognizinq the sovereignty and domain of the Hawaiian Kingdom, also recognized the legitimacy of that government's title to its own lands." 91/
The essential premise of the recognized title claim is that the native Hawaiians and the Hawaiian Government are the same entity, rather than separate entities. However, Hawaiian law does not support the "same entity" theory, as the following considerations illustrate. First, the Hawaiian Government was viewed as an entity distinct from any natural persons. 92/ Second, in 1851, the Hawaiian legislature passed a statute providing for the appointment of agents to "sell Government lands to the people." 93/ Specifically, the statute provided for the sale of Government lands to the "natives." If, as OHA asserts, native Hawaiians and the Hawaiian Government were one and the same entity insofar as holding title to the Crown and Government lands was concerned, then there would have been no need for this statute, since the natives would already have been owners of the Government lands--supposedly by the operation of the Great Mahele. 94/ Third, native tenants who had long occupied what were deemed to be Government lands (but which had never been awarded to them or anyone else by the Board of Land Cossaissioners) were held to have neither title to nor the right of possession of these Lands but were, in effect, mere trespassers. 95/ This holding cannot be reconciled with the theory that the Hawaiian Government and the native Hawaiians were one and the ease) entity, insofar as holding recognized title to the Crown and Government lands was concerned. 96/ Finally, when the owner of a kuleana (a native tenant) died without heirs, title to the land did not revert to the Government, but to the owner of the ahupua'a or ili in which the kuleana was located. 97/
The second premise underlying the recognized title claim (after the "sane entity" theory) is that the 1840 Constitution and/or the Great Mahele of 1848 operated, in effect, to vest title to the Government and Crown lands in the native Hawaiians. 98/ The validity of this premise must be determined by reference to Hawaiian law.
The thrust of the Constitution of 1340 was that the chiefs and people had rights to land. 99/ However, as of 1845, the chiefs and people had "...only a qualified right of possession to lands. They had no titles to them." 100/ Pursuant to the Act of Deceaber 10, 1845 (which established the Board of Land Commissioners), 101/ King Kamehameha III "...relinquished his claim of ownership as sovereign to over two-thirds of the entire territory of the Kingdom, in order that the game might be awarded to the chiefs and common people by the Land Commission." 102/ Until this act was passed the title to land was in the king himself. 103/ Thus, the Act of December 10, 1845 "...paved the way for the chiefs and people to obtain title to the lands occupied by them respectively-- something they theretofore did not have." 104/ Accordingly, the 1840 Constitution did not operate so as to vest title to the Government and Crown