Difference between revisions of "Template:Nhsc-v1-364"

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Line 1: Line 1:
 
(1976)). Yet neither the landmark
 
(1976)). Yet neither the landmark
decision in Thurston v. Bishop, 7 Haw.
+
decision in <u>Thurston</u> v. <u>Bishop</u>, 7 Haw.
 
421 (1888) (interpreting the 1840
 
421 (1888) (interpreting the 1840
 
Constitution) nor the other decisions
 
Constitution) nor the other decisions
Line 11: Line 11:
 
trusts expressly recognized the
 
trusts expressly recognized the
 
concept of "beneficial" title to land
 
concept of "beneficial" title to land
(Kanoelehua v. Cartwright, 7 Haw. 327,
+
(<u>Kanoelehua</u> v. <u>Cartwright</u>, 7 Haw. 327,
 
329-330 (1888); £f_. Montgomery v.
 
329-330 (1888); £f_. Montgomery v.
 
Montgomery, 2 Haw. 563, 569 (1862)).
 
Montgomery, 2 Haw. 563, 569 (1862)).
Line 18: Line 18:
 
Hawaiians had a beneficial title, it
 
Hawaiians had a beneficial title, it
 
would have so held.
 
would have so held.
 +
 
Finally, native Hawaiians do not
 
Finally, native Hawaiians do not
 
point to any suits prior to annexation
 
point to any suits prior to annexation
Line 28: Line 29:
 
original equity jurisdiction until
 
original equity jurisdiction until
 
1892) and, thereafter, in the First
 
1892) and, thereafter, in the First
Circuit Court (In re Bishop's Estate,
+
Circuit Court (<u>In re Bishop's Estate</u>,
 
11 Haw. 33 (1897)).
 
11 Haw. 33 (1897)).
121/ OHA's Comments, p. 26. As
+
 
 +
<u>121</u>/ OHA's Comments, p. 26. As
 
noted, this argument assumes that the
 
noted, this argument assumes that the
 
native Hawaiians and the Hawaiian
 
native Hawaiians and the Hawaiian
 
Government are one and the same
 
Government are one and the same
 
entity.
 
entity.
122/ MacKenzie, pp. 83-85.
+
 
123/ Sac and Fox Tribe of Indians
+
<u>122</u>/ MacKenzie, pp. 83-85.
of Oklahoma v. United States, 161 Ct.
+
 
CI. 189, 192, 197 (1963), cert.
+
<u>123</u>/ <u>Sac and Fox Tribe of Indians of Oklahoma</u> v. <u>United States</u>, 161 Ct.
 +
CI. 189, 192, 197 (1963), <U>cert</u>.
 
denied, 375 U.S. 921 (1963).
 
denied, 375 U.S. 921 (1963).
124/ Tee-Hit-Ton Indians v. United
+
 
S t a t e s , 348 U.S. 272, 278-279 (1955).
+
<u>124</u>/ Tee-Hit-Ton Indians v. United
 +
States, 348 U.S. 272, 278-279 (1955).
 
This analogy is apt since the Hawaiian
 
This analogy is apt since the Hawaiian
 
Government and native Hawaiians are
 
Government and native Hawaiians are
alleged to be one and the same e n t i t y.
+
alleged to be one and the same entity.
 
This has nothing to do with the
 
This has nothing to do with the
 
doctrine of "permissive use."
 
doctrine of "permissive use."
125/ 348 U.S. at 278-279. In such
+
 
a s i t u a t i o n there is an absence of a
+
<u>125</u>/ 348 U.S. at 278-279. In such a situation there is an absence of a
" d e f i n i t e intention by congressional
+
"definite intention by congressional
 
action or authority to accord legal
 
action or authority to accord legal
r i g h t s . "
+
rights."
126/ Sac and Fox Tribe of Indians
+
 
of Oklahoma v. United S t a t e s , 161
+
<u>126</u>/ <u>Sac and Fox Tribe of Indians of Oklahoma</u> v. <u>United States</u>, 161
Ct.Cl. 189, 192-193 (1963), c e r t.
+
Ct.Cl. 189, 192-193 (1963), <u>cert</u>.
denied, 375 U.S. 921 (1963); and
+
<u>denied</u>, 375 U.S. 921 (1963); and
Northwestern Band of Shoshone Indians
+
<u>Northwestern Band of Shoshone Indians</u>
v. United S t a t e s , 95 Ct.Cl. 642,
+
v. <u>United States</u>, 95 Ct.Cl. 642,
 
657-661, 681-684 (1942).
 
657-661, 681-684 (1942).
127/ Coos Bay, Lower Umqua, and
+
 
Siuslaw Indian Tribes v. United
+
<u>127</u>/ <u>Coos Bay, Lower Umqua, and Siuslaw Indian Tribes</u> v. <u>United States</u>, 87 Ct. CI. 143, 153 (1938),
S t a t e s , 87 Ct. CI. 143, 153 (1938),
+
<u>cert</u>. <u>denied</u>, 306 U.S. 653 (1939).
c e r t , denied, 306 U.S. 653 (1939).
+
 
128/ This paragraph t r e a t s the
+
<u>128</u>/ This paragraph treats the
native Hawaiians as an e n t i t y separate
+
native Hawaiians as an entity separate
 
from the Hawaiian Government. See
 
from the Hawaiian Government. See
United States v. Mowat, 582 F 2d 1194,
+
<u>United States</u> v. <u>Mowat</u>, 582 F 2d 1194,
1206 (9th Cir. 1978), c e r t , aenied 439
+
1206 (9th Cir. 1978), <u>cert</u>. <u>denied</u> 439
 
U.S. 967 (1978) which implies that
 
U.S. 967 (1978) which implies that
 
the native Hawaiians had no recognized
 
the native Hawaiians had no recognized
t i t l e to the Crown and Government
+
title to the Crown and Government
 
lands.
 
lands.
129/ After annexation there existed
+
 
only one e n t i t y whose t i t l e to the
+
<u>129</u>/ After annexation there existed
 +
only one entity whose title to the
 
Government and Crown lands could, in
 
Government and Crown lands could, in
 
theory, have been recognized—namely,
 
theory, have been recognized—namely,
 
the native Hawaiians as a group.
 
the native Hawaiians as a group.
130/ See Joint Resolution No. 55 of
+
 
July 7, 1898, 30 S t a t . 750, which
+
<u>130</u>/ See Joint Resolution No. 55 of
 +
July 7, 1898, 30 Stat. 750, which
 
provides, in pertinent part:
 
provides, in pertinent part:
The e x i s t i n g laws of the United
+
 
States r e l a t i v e to public lands
+
: The existing laws of the United States relative to public lands shall not apply to such lands [the ceded lands] in the Hawaiian Islands; but the Congress shall enact special laws for their management and disposition: <u>Provided</u>, That all revenue from or proceeds of the same...[with certain exceptions] shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.
s h a l l not apply to such lands
+
 
[the ceded lands] in the Hawaiian
 
Islands; but the Congress shall
 
enact special laws for their
 
management and disposition:
 
Provided, That a l l revenue from
 
or proceeds of the same...[with
 
c e r t a i n exceptions] shall be used
 
s o l e l y for the benefit of the
 
inhabitants of the Hawaiian
 
Islands for educational and other
 
public purposes.
 
 
Treaties of cession do not generally
 
Treaties of cession do not generally
e s t a b l i s h recognized t i t l e to ceded
+
establish recognized title to ceded
 +
 
 +
{{p|364}

Revision as of 23:03, 12 May 2006

(1976)). Yet neither the landmark decision in Thurston v. Bishop, 7 Haw. 421 (1888) (interpreting the 1840 Constitution) nor the other decisions discussed previously (interpreting the Great Mahele) hold that the native Hawaiians held a "beneficial" title to the Government and Crown lands. This is especially significant in light of the fact that the Hawaiian law of trusts expressly recognized the concept of "beneficial" title to land (Kanoelehua v. Cartwright, 7 Haw. 327, 329-330 (1888); £f_. Montgomery v. Montgomery, 2 Haw. 563, 569 (1862)). Presumably, if the Hawaiian Supreme Court had believed that the native Hawaiians had a beneficial title, it would have so held.

Finally, native Hawaiians do not point to any suits prior to annexation alleging a violation of some fiduciary duty of the Government with respect to the Government and/or Crown lands. Yet there is no doubt that up to 1892 such a suit could have been filed in the Hawaiian Supreme Court (which had original equity jurisdiction until 1892) and, thereafter, in the First Circuit Court (In re Bishop's Estate, 11 Haw. 33 (1897)).

121/ OHA's Comments, p. 26. As noted, this argument assumes that the native Hawaiians and the Hawaiian Government are one and the same entity.

122/ MacKenzie, pp. 83-85.

123/ Sac and Fox Tribe of Indians of Oklahoma v. United States, 161 Ct. CI. 189, 192, 197 (1963), cert. denied, 375 U.S. 921 (1963).

124/ Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278-279 (1955). This analogy is apt since the Hawaiian Government and native Hawaiians are alleged to be one and the same entity. This has nothing to do with the doctrine of "permissive use."

125/ 348 U.S. at 278-279. In such a situation there is an absence of a "definite intention by congressional action or authority to accord legal rights."

126/ Sac and Fox Tribe of Indians of Oklahoma v. United States, 161 Ct.Cl. 189, 192-193 (1963), cert. denied, 375 U.S. 921 (1963); and Northwestern Band of Shoshone Indians v. United States, 95 Ct.Cl. 642, 657-661, 681-684 (1942).

127/ Coos Bay, Lower Umqua, and Siuslaw Indian Tribes v. United States, 87 Ct. CI. 143, 153 (1938), cert. denied, 306 U.S. 653 (1939).

128/ This paragraph treats the native Hawaiians as an entity separate from the Hawaiian Government. See United States v. Mowat, 582 F 2d 1194, 1206 (9th Cir. 1978), cert. denied 439 U.S. 967 (1978) which implies that the native Hawaiians had no recognized title to the Crown and Government lands.

129/ After annexation there existed only one entity whose title to the Government and Crown lands could, in theory, have been recognized—namely, the native Hawaiians as a group.

130/ See Joint Resolution No. 55 of July 7, 1898, 30 Stat. 750, which provides, in pertinent part:

The existing laws of the United States relative to public lands shall not apply to such lands [the ceded lands] in the Hawaiian Islands; but the Congress shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same...[with certain exceptions] shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.

Treaties of cession do not generally establish recognized title to ceded

{{p|364}