tenants to grow crops and pasture animals on Crown and Government lands. In addition, this statute was held to have effected an implicit repeal of all former gathering rights. This statute evidences an absence of collective rights in the Government and Crown lands.
57/ OHA's Comments, p. 25.
58/ Ibid., p. 24.
59/ United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 347 (1941). OHA cites Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979) with respect to abandonment of aboriginal title. However, this case concerned "abandonment" by the claimant of its tribal status and not abandonment of aboriginal title (592 F.2d at 586-587).
60/ Cf. Williams v. City of Chicago, 242 U.S. 434, 437-438 (1917); and Buttz v. Northern Pacific Railroad, 119 U.S. 55, 69-70 (1886).
OHA also states: "Under traditional principles of Indian law, forcible dispossession by non-natives [referring to the landing of American troops on January 17, 1893], is not voluntary abandonment and does not extinguish aboriginal title" (OHA's Comments, pp. 24-25). Temporary forcible disposession of an Indian tribe from its aboriginal title lands by the sovereign had been found to effect an extinguishment of title (Northern Paiute Nation, et al. v. United States, 7 Ind.Cl.Comm. 615, 616 (1959), aff'd, 183 Ct.Cl. 321 (1968)), but, as a general rule, temporary forcible dispossession does not operate to extinguish aboriginal title where there is no evidence of a Congressional intention to extinguish title (United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 354-356 (1941)). Here, where the Federal Government was not the sovereign before 1898, the rule cited by OHA has no applicability.
61/ Levy, p. 857.
62/ One theory advanced in the comments received by the Commission is that leasing of Government and Crown lands is an example of "permissive use" of aboriginal title lands that did not effect an extinguishment of aboriginal title (see Senator Inouye's Comments, pp. 37-39).
The doctrine of "permissive use" refers to use of an Indian tribe's (or band's) aboriginal title lands by another Indian tribe or band; this use is specifically allowed by the tribe or band holding aboriginal title (Samish Tribe v. United States, 6 Ind.Cl.Comm. 159, 175 (1958); S'Klallam Tribe v. United States, 5 Ind.Cl.Comm. 680, 704 (1957)). The fact that non-native Hawaiians were allowed to use the Government and Crown lands is not evidence chat the native Hawaiians held aboriginal title to these lands. Cf. Confederated Tribes of the Umatilla Indian Reservation v. United States, 14 Ind.Cl.Comm. 14, 119 (1964). "Permissive use" presumes the existence of aboriginal title (14 Ind.Cl.Comm. at 119). Furthermore, the use of Crown and Government lands was authorized by the Hawaiian Government—the sovereign—and not by the native Hawaiians.
63/ United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 347 (1941); and Pillager Bands of Chippewa Indians v. United States, 192 Ct.Cl. 698, 705 (1970).
64/ United States v. Santa Fe Pacific Railroad Co., 314 U.S.,339, 347 (1941); Washoe Indian Tribe v. United States, 21 Ind.Cl.Comm. 447, 448 (1969); and cf. United States v. Northern Paiute Nation, 203 Ct.Cl. 468, 474-475 (1974).
65/ Cowlitz Tribe v. United States, 25 Ind.Cl.Comm. 442, 451 (1971), aff'd, 199 Ct.Cl. 523 (1972); Tlingit and Haida Indians v. United States, 147 Ct.Cl. 315, 33.6-341