Difference between revisions of "Template:Nhsc-v1-356"

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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 c i t e s Mashpee Tribe
+
 
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 t i t l e.
+
abandonment of aboriginal title.
 
However, this case concerned
 
However, this case concerned
"abandonment" by the claimant of i ts
+
"abandonment" by the claimant of its
t r i b a l status and not abandonment of
+
tribal status and not abandonment of
aboriginal t i t l e (592 F.2d at
+
aboriginal title (592 F.2d at
 
586-587).
 
586-587).
60/ . Williams v. City of
+
 
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 s t a t e s : "Under
+
Railroad</u>, 119 U.S. 55, 69-70 (1886).
t r a d i t i o n a l principles of Indian law,
+
 
 +
OHA also states: "Under
 +
traditional principles of Indian law,
 
forcible dispossession by non-natives
 
forcible dispossession by non-natives
[ r e f e r r i n g to the landing of American
+
[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 t i t l e " (OHA's
+
extinguish aboriginal title" (OHA's
 
Comments, pp. 24-25). Temporary
 
Comments, pp. 24-25). Temporary
f o r c i b l e disposession of an Indian
+
forcible disposession of an Indian
t r i b e from i t s aboriginal t i t l e lands
+
tribe from its aboriginal title lands
 
by the sovereign had been found to
 
by the sovereign had been found to
effect an extinguishment of t i t le
+
effect an extinguishment of title
(Northern Paiute Nation, et a l . v.
+
(<u>Northern Paiute Nation, et al.</u> v.
United S t a t e s , 7 Ind.Cl.Comm. 615,
+
<u>United States</u>, 7 Ind.Cl.Comm. 615,
616 (1959), a f f ' d , 183 Ct.Cl. 321
+
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
t i t l e where there is no evidence of a
+
title where there is no evidence of a
 
Congressional intention to extinguish
 
Congressional intention to extinguish
t i t l e (United States v. Santa Fe
+
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 a p p l i c a b i l i t y.
+
by OHA has no applicability.
6jy Levy, p. 857.
+
 
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
t h a t leasing of Government and Crown
+
that leasing of Government and Crown
 
lands is an example of "permissive
 
lands is an example of "permissive
use" of aboriginal t i t l e lands that
+
use" of aboriginal title lands that
 
did not effect an extinguishment of
 
did not effect an extinguishment of
aboriginal t i t l e (see Senator Inouye's
+
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 t r i b e ' s (or
+
refers to use of an Indian tribe's (or
band's) aboriginal t i t l e lands by
+
band's) aboriginal title lands by
another Indian t r i b e or band; this use
+
another Indian tribe or band; this use
is s p e c i f i c a l l y allowed by the tribe
+
is specifically allowed by the tribe
or band holding aboriginal t i t le
+
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 S t a t e s , 5
+
<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
t i t l e to these lands. C_f_. Confederated
+
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 t i t l e (14
+
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
+
 
P a c i f i c Railroad Co., 314 U.S. 339,
+
<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 S t a t e s , 21 Ind.Cl.Comm. 447,
+
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
+
 
S t a t e s , 25 Ind.Cl.Comm. 442, 451
+
<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
T l i n g i t and Haida Indians v. United
+
(1971), <u>aff'd</u>, 199 Ct.Cl. 523 (1972);
S t a t e s , 147 Ct.Cl. 315, 33.6-341
+
<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

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