Difference between revisions of "Template:Nhsc-v1-356"
Reid Ginoza (talk | contribs) |
|||
Line 4: | Line 4: | ||
have effected an implicit repeal of | have effected an implicit repeal of | ||
all former gathering rights. This | all former gathering rights. This | ||
− | statute evidences an absence of | + | statute evidences an <u>absence</u> of |
collective rights in the Government | collective rights in the Government | ||
and Crown lands. | and Crown lands. | ||
− | 57/ OHA's Comments, p. 25. | + | |
− | 58/ Ibid., p. 24. | + | <u>57</u>/ OHA's Comments, p. 25. |
− | 59/ United States v. Santa Fe | + | |
− | Pacific Railroad Co., 314 U.S. 339, | + | <u>58</u>/ <u>Ibid</u>., p. 24. |
− | 347 (1941). OHA | + | |
− | v. New Seabury Corp., 592 F.2d 575 | + | <u>59</u>/ <u>United States</u> v. <u>Santa Fe |
+ | Pacific Railroad Co.</u>, 314 U.S. 339, | ||
+ | 347 (1941). OHA cites <u>Mashpee Tribe</u> | ||
+ | v. <u>New Seabury Corp.</u>, 592 F.2d 575 | ||
(1st Cir. 1979) with respect to | (1st Cir. 1979) with respect to | ||
− | abandonment of aboriginal | + | abandonment of aboriginal title. |
However, this case concerned | However, this case concerned | ||
− | "abandonment" by the claimant of | + | "abandonment" by the claimant of its |
− | + | tribal status and not abandonment of | |
− | aboriginal | + | aboriginal title (592 F.2d at |
586-587). | 586-587). | ||
− | 60/ | + | |
− | Chicago, 242 U.S. 434, 437-438 (1917); | + | <u>60</u>/ <u>Cf.</u> <u>Williams</u> v. <u>City of |
− | and Buttz v. Northern Pacific | + | Chicago</u>, 242 U.S. 434, 437-438 (1917); |
− | Railroad, 119 U.S. 55, 69-70 (1886). | + | and <u>Buttz</u> v. <u>Northern Pacific |
− | OHA also | + | Railroad</u>, 119 U.S. 55, 69-70 (1886). |
− | + | ||
+ | OHA also states: "Under | ||
+ | traditional principles of Indian law, | ||
forcible dispossession by non-natives | forcible dispossession by non-natives | ||
− | [ | + | [referring to the landing of American |
troops on January 17, 1893], is not | troops on January 17, 1893], is not | ||
voluntary abandonment and does not | voluntary abandonment and does not | ||
− | extinguish aboriginal | + | extinguish aboriginal title" (OHA's |
Comments, pp. 24-25). Temporary | Comments, pp. 24-25). Temporary | ||
− | + | forcible disposession of an Indian | |
− | + | tribe from its aboriginal title lands | |
by the sovereign had been found to | by the sovereign had been found to | ||
− | effect an extinguishment of | + | effect an extinguishment of title |
− | (Northern Paiute Nation, et | + | (<u>Northern Paiute Nation, et al.</u> v. |
− | United | + | <u>United States</u>, 7 Ind.Cl.Comm. 615, |
− | 616 (1959), | + | 616 (1959), <u>aff'd</u>, 183 Ct.Cl. 321 |
(1968)), but, as a general rule, | (1968)), but, as a general rule, | ||
temporary forcible dispossession does | temporary forcible dispossession does | ||
not operate to extinguish aboriginal | not operate to extinguish aboriginal | ||
− | + | title where there is no evidence of a | |
Congressional intention to extinguish | Congressional intention to extinguish | ||
− | + | title (<u>United States</u> v. <u>Santa Fe | |
− | Pacific Railroad Co., 314 U.S. 339, | + | Pacific Railroad Co.</u>, 314 U.S. 339, |
354-356 (1941)). Here, where the | 354-356 (1941)). Here, where the | ||
Federal Government was not the | Federal Government was not the | ||
sovereign before 1898, the rule cited | sovereign before 1898, the rule cited | ||
− | by OHA has no | + | by OHA has no applicability. |
− | + | ||
− | 62/ One theory advanced in the | + | <u>61</u>/ Levy, p. 857. |
+ | |||
+ | <u>62</u>/ One theory advanced in the | ||
comments received by the Commission is | comments received by the Commission is | ||
− | + | that leasing of Government and Crown | |
lands is an example of "permissive | lands is an example of "permissive | ||
− | use" of aboriginal | + | use" of aboriginal title lands that |
did not effect an extinguishment of | did not effect an extinguishment of | ||
− | aboriginal | + | aboriginal title (see Senator Inouye's |
Comments, pp. 37-39). | Comments, pp. 37-39). | ||
+ | |||
The doctrine of "permissive use" | The doctrine of "permissive use" | ||
− | refers to use of an Indian | + | refers to use of an Indian tribe's (or |
− | band's) aboriginal | + | band's) aboriginal title lands by |
− | another Indian | + | another Indian tribe or band; this use |
− | is | + | is specifically allowed by the tribe |
− | or band holding aboriginal | + | or band holding aboriginal title |
− | (Samish Tribe v. United States, 6 | + | (<u>Samish Tribe</u> v. <u>United States</u>, 6 |
Ind.Cl.Comm. 159, 175 (1958); | Ind.Cl.Comm. 159, 175 (1958); | ||
− | S'Klallam Tribe v. United | + | <u>S'Klallam Tribe</u> v. <u>United States</u>, 5 |
Ind.Cl.Comm. 680, 704 (1957)). The | Ind.Cl.Comm. 680, 704 (1957)). The | ||
fact that non-native Hawaiians were | fact that non-native Hawaiians were | ||
Line 73: | Line 81: | ||
Crown lands is not evidence chat the | Crown lands is not evidence chat the | ||
native Hawaiians held aboriginal | native Hawaiians held aboriginal | ||
− | + | title to these lands. <u>Cf</u>. <u>Confederated | |
Tribes of the Umatilla Indian | Tribes of the Umatilla Indian | ||
− | Reservation v. United States, 14 | + | Reservation</u> v. <u>United States</u>, 14 |
Ind.Cl.Comm. 14, 119 (1964). | Ind.Cl.Comm. 14, 119 (1964). | ||
"Permissive use" presumes the | "Permissive use" presumes the | ||
− | existence of aboriginal | + | existence of aboriginal title (14 |
Ind.Cl.Comm. at 119). Furthermore, | Ind.Cl.Comm. at 119). Furthermore, | ||
the use of Crown and Government lands | the use of Crown and Government lands | ||
Line 84: | Line 92: | ||
Government—the sovereign—and not by | Government—the sovereign—and not by | ||
the native Hawaiians. | the native Hawaiians. | ||
− | 63/ United States v. Santa Fe | + | |
− | + | <u>63</u>/ <u>United States</u> v. <u>Santa Fe | |
− | 347 (1941); and Pillager Bands of | + | Pacific Railroad Co.</u>, 314 U.S. 339, |
− | Chippewa Indians v. United States, 192 | + | 347 (1941); and <u>Pillager Bands of |
+ | Chippewa Indians</u> v. <u>United States</u>, 192 | ||
Ct.Cl. 698, 705 (1970). | Ct.Cl. 698, 705 (1970). | ||
− | 64/ United States v. Santa Fe | + | |
− | Pacific Railroad Co., 314 U.S.,339, | + | <u>64</u>/ <u>United States</u> v. <u>Santa Fe |
− | 347 (1941); Washoe Indian Tribe v. | + | Pacific Railroad Co.</u>, 314 U.S.,339, |
− | United | + | 347 (1941); <u>Washoe Indian Tribe</u> v. |
− | 448 (1969); and cf. United States v. | + | <u>United States</u>, 21 Ind.Cl.Comm. 447, |
− | Northern Paiute Nation, 203 Ct.Cl. | + | 448 (1969); and <u>cf</u>. <u>United States</u> v. |
+ | <u>Northern Paiute Nation</u>, 203 Ct.Cl. | ||
468, 474-475 (1974). | 468, 474-475 (1974). | ||
− | 65/ Cowlitz Tribe v. United | + | |
− | + | <u>65</u>/ <u>Cowlitz Tribe</u> v. <u>United | |
− | (1971), aff'd, 199 Ct.Cl. 523 (1972); | + | States</u>, 25 Ind.Cl.Comm. 442, 451 |
− | + | (1971), <u>aff'd</u>, 199 Ct.Cl. 523 (1972); | |
− | + | <u>Tlingit and Haida Indians</u> v. <u>United | |
+ | States</u>, 147 Ct.Cl. 315, 33.6-341 | ||
+ | {{p|356}} |
Latest revision as of 02:35, 7 May 2006
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
|