Ka Wai Ola - Office of Hawaiian Affairs, 1 September 1982 — STUDY COMMISSION REPORT [ARTICLE+ILLUSTRATION]

STUDY COMMISSION REPORT

guished by actions of the Hawaiian Government before 1893 and certainly before annexation, whieh is the first time the United States assumed sovereignty. The Kuleana Act of 1850 terminated the right of pasturage and the right of commoners to grow crops on unoccupied lands of the ahupua'a. Other Hawaiian legislative acts had the effect of allowingforeignersto purchase Government iands. By 1893, over 600,000 acres of Government land had been sold to foreigners (non-natives) and 752,431 acres of Government and Crown lands had been leased to foreigners. By thus having "asserted and exerted full dominion" over Crown and Government lands, the government of Hawaii (whieh as sovereign had the authority to extinguish aboriginal title) had taken actions specifically inconsistent with the continued existence of aboriginal title. Legislation enactecd by the sovereign ean effect an extinguishment of aboriginal title. Settlement and or use of aboriginal title lands by non-natives whieh is authorized by the sovereign — here the government of Hawaii — operates to extinguish aboriginal title. In sum, termination of the native Hawaiians' right to grow crops and right to pasturage on the unoccupied lands of the ahupua'a (pursuant to the Kuleana Act of 1850), the purchase of Government lands by natives and foreigners (authorized by various acts passed by the Hawaiian Legislature) and the action of allowing foreigners to lease Crown and Government lands (together with the actual leasing of 752,431 acres of said lands by foreigners), taken together, served to effectuate an extinguishment of aboriginal title, if any had existed, to the Crown and Government lands. Therefore, if native Hawaiians had had any aboriginal title to the Crown and Government lands, that title was extinguished by the actions of the government of Hawaii before 1893. Importantly, "aboriginal title rights extinguished prior to the inception of United States sovereignty are not compensable claims against the United States." Right of compensation for loss of aboriginal title Even if the native Hawaiians had had aboriginal title to Crown and Government lands, and that title had been extinguished by the United States (tests that are not met), eompensation for the loss of these lands would not be available under current law. The Fifth Amendment to the United States Constitution provides that the United States cannot take land without just compensation. Aboriginal title is not a vested property right, however, but instead only a right of occupancy w hieh the sovereign may terminate at any time without payment of compensation. Therefore, courts have held that its lossdoes not entitle the loser to compensation under the Fifth Amendment. Extinguishment of aboriginal title is compensable under Section 2 of the Indian Claims Commission Act. 25 U.S.C. § 70a. However, to be compensated, claims under that Act had to be filed by 1951, Therefore, under present law, no authority is available under whieh compensation ean be sought. In conclusion, the native Hawaiians do not meet the above three tests for establishing aboriginal title to lands in Hawaii, including the Crown and Government iands designated by the Great Mahele. Further, even if aboriginal title wereestablished, it was extinguished by acts of the Hawaiian king legislature prior to 1898, when the United States, through annexation, became the sovereign. Therefore, the native Hawaiians are not entitled to compensation for such extinguishment by the United States had extinguished established aboriginal title, no present law provides for compensation for that loss. C. WHETHER NATIVE HAWAIIANS ARE ENTITLED TO COMPENSATION FOR LOSS OF RECOGNlZED TITLE TO CROWN AND GOVERNMENT LANDS The second legal principle under whieh the U nited States may compensate for loss of land is if the United States has "recognized" — acknowledged by its laws — the title of the native group to the land. Again, specific legal requirements to establish that the United States has recognized title must be met. "Recognized" title, in federal law, occurs when Congress has granted an Indian tribe the "right to occupy and use" certain lands permanently. "Recognized" title means the grant to Indian tribes of "rights in land whieh were in addition to the Indians' traditional use and occupancy rights exercised only with permission of the sovereign. . ."[Emphasissupplied.]Thissectionanalyzes those requirements in light of the native Hawaiianhistory. First, recognized title must eome from the U nited States Congress. Before 1898 the Hawaiian Islands were not part of the territory of the United States. Therefore, Congress had nojurisdiction over the native Hawaiians. unlike the Indian tribes. The United States could not, then, have granted recognized title to the Government and Crown lands prior to the time when the United States exercised sovereignty overthe Hawaiian Islands. Because only Congress ean accord recognized title, the Hawaiian king's setting aside of about 1.5 million acres of Government lands to "the chiefs and the people of my kingdom," and the approval of this action by the Hawaiian Legislature by the Act of June 7, 1848. cannot beagrant of recognized title. Similarly, because Congress ean grant recognized title only when it ean exercise sovereignty, such title could not be established by the United States through various treaties and agreements before 1898. Therefore, an unratified treaty between the United States and the Hawaiian Kingdom negotiated in 1826,

an 1849 treaty (relating to friendship, commerce and navigation) and the 1875 Reciprocity Treaty (concerning trade) cannot constitute recognition by the United States of title of the native Hawaiians to the Governmentand Crown lands. Further, an unratified treaty cannot possib!y be the source of recognized title. And a treaty of peaee and friendship does not constitute a grant of recognized title even though it may acknowledge that the particular tribe or band is living in a certain area. Moreover, these treaties were not made with the native Hawaiians, but with the Hawaiian government. Nor did the Joint Resolution of Annexation constitute a recognition of tit!e for native Hawaiians. The sectior. of that Joint Resolution relating to public lands designates as beneficiaries the "inhabitants of Hawaii," not "native Hawaiians." This use of language is particularly important because Congress was well aware of the existence of the native Hawaiians, and looked on them as distinct from the rest of the residents of Hawaii. Congress also viewed the "native Hawaiians" as a distinct ethnic group. Finally, the legislative history makes clear that "inhabitants of Hawaii" were viewed as being all 109,000 people living in the Hawaiian lslands. If Congress had meant to recognize title of the native Hawaiians in the Joint Resolution of 1898, it would have used the term "native Hawaiians" rather than "inhabitants of Hawaii." The Organic Act of 1900alsodid notestablish recognized title of the native Hawaiians to the ceded lands. The Organic Act of 1900 provides, in part: "The laws of Hawaii relating to public lands. . ,shall continue in force until Congress shall otherwise provide." This provision is similar to a clause in Alaska's Organic Act, whieh at Section 8 provides in part: * * * That the Indians or other persons in said district shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under whieh such persons may acquire title to such lands is reserved for future legislation by Congress * * *. The Supreme Court has held that this provision of the Alaska Organic Act did not indicate "any intention by Congress to grant to the Indians permanent rights to the lands of Alaska occupied by them by permission of Congress." Rather, the Alaska Organic Act was designed "merely to retain the status quo until further congressional or judicial action is taken." The Hawaiian Organic Act must besimilarlyconsidered not to grant a p>ermanent right of use and occupancy in Crown and Government lands to native Hawaiians. Further, unlike the Alaska Act, the Hawaii Act does not mention "natives." If recognized title is not established, no compensation isdue under the Fifth Amendment. Even if the native Hawaiians had been accorded recognized title by some action of the United States Congress, they cannot be compensated for the loss of that title. Any actions of the United States before 1898 cannot constitute a compensable elaim under the Fifth Amendment for a "taking" of the Government and Crown lands without eompensation because the United States did not have sovereignty over the Hawaiian Islands in 1895. Annexation itself was not a taking under the requirements of the Fifth Amendment because it was not an appropriation of the Crown and Government lands for use by the federal government pursuant to a Congressional authorization. The 1900 Organic Act confirms this fact by providing that the "public property" (Crown and Government !ands) ceded to the United States under the Joint Resolution of Annexation: shall be and remain in the possession, use and control of the government of the Territorial of Hawaii, and shall be maintained, managed and cared for by it, until otherwise provided by Congress, or laken for the uses and purposes of ihe United States by direction of the President or the governor of Hawaii. [Emphasis supplied.] Therefore, the native Hawaiians would not be entitled to Fifth Amendment compensation for any loss of recognized title, if it were established. Similarly, they cannot obtain compensation under Section 2 of the lndian Claims Commissions Act because such claims must have been filed by 1951. In sum, Congress must grant recognize title, not the Government of Hawaii. Moreover, the United States could not have granted such recognized title before 1898 because it did not have sovereignty over the Hawaiian Islands. The actions it took ir. and after 1898 — particularly annexation and passage of the Organic Act of 1900 — did not create recognized title, because they did not grant the native Hawaiians the right to use and occupy the Government and Crown lands permanently. Even if recognized title were established, under the facts of the Hawaiian experience, loss of that title would not be compensable under either the Fifth Amendment to the United States Constitution or under the Indian Claims Commission Act. Under present law, therefore, the Native Hawaiians have no legal right to compensation for loss of their land. D. WHETHER NATIVE HAWA1IANS ARE ENTITLED TO COMPENSAT10N OF LOSS OF SOVERElGNTY Native groups have also made claims that they should be given compensation for loss of "sovereignty." This Section devines sovereignty and then considers whether the law provides compensation for its loss in the context of the facts relevant to

Hawaiian natives. The Office of Hawaiian Affairs defines sovereignty as the power to control internal and external affairs and the right of self-government. The United States courts have examined the concept of sovereignty for lndian tribes; that consideration would be applicable as well to native Hawaiians: "The powers of Indian tribes are, in general, 'inherent powers of a limited sovereignty whieh has never heen extinguished * * *.' Before the coming of the Europeans, the tribes were self-governing sovereign political; communities. [Cite omitted]. lndian tribes are, of course, no longer 'possessed of the full attributes of sovereignty.' * * * Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty whieh they had previously exercised.* * * But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: Tndian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. ..***' The sovereignty that the Indian tribes retain is of a uniqued and !imited character. lt exists only at the sufferance of Congress and is subject to complete defeasance. But until congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." The part of their sovereignty that Indian tribes have "implicitly lost by virtue of their dependent status" is the po wer to control their external relations with non-members of the tribe. As a result, lndian tribes are not free to alienate their land to nonlndians, to have "direct commercial or governmental relations with foreign nations," or to exercise criminal jurisdiction over non-members in tribal courts. The sovereignty retained by Indian tribes encompasses the power of tribal self-government and the power to control internal relations among the members of the tribe. Thus, lndian tribes retain their power to determine tribal membership, regulate domestic relations, promulgate rules of inheritancefor tribal members. and exercise criminal jurisdiction over tribal members. For native Hawaiians, by analogy, there are claims that nati ve Hawaiians lost all attributes of sovereignty (i.e., they lost the power to deal with foreign nations, to control internal relations and to govern themselves). It has been argued that the power of self-government was effectively lost with the establishment of the Provisional Government in 1893 and was totally lost when the Territorial Government was established pursuant to the Organic Act of 1900, 31 Stat. 141. Even if history had fully established these claims, whieh Chapter II above does not, native Hawaiians could not be compensated for loss of sovereignty. For native groups, including Indian tribes and native Hawaiians, sovereignty "exists only at the sufferance of Congress and is subject to complete defeasance." In short, Congress ean take away sovereignty of native groups at will onee it exercises sovereignty over the group. For the native Hawaiians, until 1898, the United States wasdealing with the Government of Hawaii as another sovereign. Courts will not look behind the United States' recognition of a foreign government; so before 1898, no action of Congress could be regarded as taking the sovereignty of Hawaii. Even after 1 898, any effect whieh Congress' actions may ha ve had on the sovereignty of native Hawaiians cannot give rise to a compensable elaim. Since Congress ean take away the sovereignty of native groups at will, sovereignty is not a property right subject to the Fift Amendment, and its loss is not eompensable. Moreover, a elaim of compensation for loss of sovereignty is not a viable cause of action even under the liberal provisions of the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C. § 70, ei seq. The legislative history of the lndian claims Commission Act indicates no intention on the part of Congress to create a cause of action for loss of sovereignty and the Indian Claims Commission has so held. Even if there were a elaim for loss of sovereignty under the Indian Claims Commission Act, the U nited States has not assumed the special duty to protect the sovereignty of the native Hawaiians under either the Organic Act of 1900 or the Joint Resolution of Annexation, so that the requirements for such a elaim would not be met. Further, such a elaim would have to have been filed by 1951. Theanalysis under the Fifth Amendment and the Indian Claims commission Act is not changed by the fact that the Joint Resolution was not submitted to a plebiscite in Hawaii. Indeed, it has been held that the Joint Resolution was legal and proper. The Alaska Native Claims Settlement Act (ANCSA) also does not appear to support the elaim of compensation for ioss of sovereignty. ANCSA compensated the Alaska natives for loss of aboriginal title, if any, and for the termination of all claims based on that title. Furthermore, the legislative history of ANCSA shows that Congressdid not intend to extinguishclaims "based upon grounds other than the loss of original Indian title Continued next page

Cominued from previous page lanei." Since Congress did not intend to extinguish claimsbased upon grounds other than loss of aboriginal title, the compensation paid under ANSCA was clearly not payment for any elaim for loss of sovereignty by the Alaskan natives. In sum, ANCSA did not provide for compensation for loss of sovereignty by Alaskan natives, and therefore, provides no analogy for compensation to native Hawaiians for loss of sovereignty. Therefore, the native Hawaiians have no presentlegalentitlement to compensation for any loss of sovereignty against the United States. E. TRUST RELATIONSHIP BETWEEN THE NATIVES OF HAWAII AND THE UNITED STATES If a special trust relationship between the Federal Government and native Hawaiians exists, whieh is very similar to the trust relationship between the Federal Government and United States Indian tribes, a failure of the United States to meet the terms of the trust may (but does not necessarily) provide a basis for compensation. The theory has been advanced that, "It has long been recognized that a special relationship, characterized as a fiduciary relationship, exists between the Federal Government and Indian tribes," and that, "The federalHawaiian native relationship arises from United States' participation in the overthrow of the native government and subsequent federal ownership of the legal title to native lands." A fiduciary relationship between the Federal Government and an Indian tribe ean arise only from provisions of a treaty, statute or agreement whereby the Government assumes fiduciary obligations toward the tribe. No fiduciary (trust) relationship arose from the fact that the United States Minister to Hawaii supported establishment of the Provisional Government in 1893. (Regarding this history, see Chapter II.) The salient fact is that the Hawaiian Islands were not part of the U nited States in 1 893, and the Federal Government exercised no sovereignty over them. The sovereignty of the Federal Government over Indian tribes arises from the fact that these tribes reside within the boundaries of the United States. In the absence of sovereignty over the Hawaiian Islands, no fiduciary relationship could have existed between the natives of Hawaii and the Federal Government in 1893, or at any time prior to annexation. The Joint Resolution of Annexation of July 7, 1898, 30 Stat. 750, also did not give rise to a fiduciary relationship between the United States and the native Hawaiians. The Joint Resolution provided that the revenues or proceeds from the ceded land shall ( with specified exceptions) "* * * be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other purposes." This language does not give rise to a fiduciary relationship with the native Hawaiians because it did not specify that the revenues and proceeds of the ceded lands were to be used solely for the benefit of the "native inhabitants of the Hawaiian Islands." Whether or not this language creates a trust relationship between the United States and all Hawaiians ("inhabitants'" to superintend the use of these funds is a matter beyond the scope of this Commission, whieh is to examine interest of native Hawaiians. Similarly, the Organic Act of 1900, 31 Stat. 141, did not give rise to a trust relationship with the native Hawaiians. Section 73 of the Organic Act provided, in part, that funds derived from the "sale of lease or other disposal" of the ceded lands shall be "applied to such uses and purposes for the benefit of the inhabitants of the Territory of Hawaii as are consistent with the joint resolution of annexation ***." Again, if Congress had intended Section 73 to apply specifically to "native inhabitants" it would have so provided. More importantly, Section 91 of the Organic Act indicates laek of any intent by Congress to establish a fiduciary relationship with the native Hawaiians. Section 91 provides that the lands ceded by the joint resolution of annexation were to ***remain in the possession, use and control of the government of the Territory of Hawaii, and shall be maintained, managed and cared for by it, at its own expense * * * Since Congress in Section 9 1 of the Organic Act specifically provided that the Territory of Hawaii and not the Federal Government would control and supervise the ceded lands, no fiduciary or trust relationship between the native Hawaiians and the Federal Government exists. That the title to the ceded lands was held by the United States did not give rise to a fiduciary relationship because Congress provided that the Territorial of Hawaii would control and supervise these lands — not the Federal Government. Furthermore, pursuant to Section 5 of the Hawaii Admission Act of March 18, 1959, 73 Stat. 4, the United States granted the State of Hawaii "the United States' title to all the public lands, and other public property within the boundaries of the State of Hawaii, title to whieh is held by the United States immediately prior to the admission to the Union." Since fee title to mueh of the ceded lands is no longer held by the Federal Go vernment, no fiduciary relationship now exists as to the ceded lands. Even if a trust relationship between the Hawaiian natives and the Federal Government were to exist, it is, at most, a very limited trust relationship. The requirement that revenues or proceeds from the ceded lands were (with certain exceptions) to be used "sole!y for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes" was at most a "special trust" whieh "merely restricted the use to whieh the proceeds of such lands [the public lands of Hawaii] could be put." Additionally, even though the proceeds or revenues from the ceded lands may have been the subject of a "special trust," and even though the Federal Government held fee title to the ceded lands, these two circumstances did not "impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee." This limited trust relationship, if any, did not encompass any fiduciary duty of the Federal Government to protect the native Hawaiians in the possession of their lands

because the Federal Government never assumed any such duty. There is most likely no specified trust relationship between the United Statesand the native Hawaiiansestablished by lawof the United States. At most there is a very limited special trust. Native Hawaiians are therefore not entitled under existing law to compensation for any breach of a trust duty toward them. F. COMPARISON WITH ALASKA NATIVE CLAIMS The legal claims of the Alaska Natives whieh motivated passage of the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601, et seq., differed significantly from the claims of native Hawaiians. Non-Indian settlement of the western United States followed a three-step pattern. First, the land was acquired by treaty from the sovereign entity — France, Spain, Mexico, Great Britain or Russia — claiming title. Second, some lands in the acquired territory were set aside for Indians. Third, the public land laws, whieh allowed people to enter into the acquired territories and settle thereon, were extended to all federally-owned land in the acquired territory, except land that had been specifically reserved for governmental purposes, such as Indian reservations. In Alaska, however, only the first and third steps occurred. After the United States acquired title from Russian, the public land laws were extended to Alaska without there having been any effort by the U nited States to define Alaska Native rights to use land or set aside land for their exclusive use. However, as Congress extended the various public land laws to Alaska, it provided that nothing in the laws should be deemed to affect Alaska Native occupancy. In general, this has meant that land actually occupied by an Alaska native or a native group or village could not be acquired by a non-native under the public land laws. However, it has generally been held that a non-native could acquire title to vacant land whieh was subject to native "aboriginal" occupancy, rather than actual occupancy. When Alaska became a state, Congress authorized the State to select vast areas of federal land for its own use. The selection of land had to be approved by the Secretary of the Interior; however, he could give "tentative approval" to the State selection pending his final approval and issuance of a patent. Onee the State had received "tentative approval" it could "conditionally" lease or sell the land to third parties. Another provision of the Statehood Act, however, required the State of AIaska to diselaim any interest in land that "mav be held by any Indians, Eskimos, or Aleuts." Further, the Statehood Act provided that none of its provisions could be construed to "recognize, deny, enlarge, or impair any elaim against the United States" [emphasis added] and that the resolution of any native land rights would be left to future legislation by Congress. The Statehood Act thus had an irreconcilable conflict. Unlike the acts whieh extended the public land laws to Alaska but protected the lands natives actually occupied, the Statehood Act prohibited the State from selecting any lands that "might" be held by natives or even claimed by natives. Congress probably intended to protect lands that the natives used and occupied in an aboriginal manner from State selection, but no one was sure what those lands were or the extent of any native elaim. The State did select some lands and received tentative approvals from the Secretary. The State then leased these lands to oil eompanies, whieh discovered oil on them. When oil wasdiscovered, the native groups claimed aboriginal title to the land. The Secretary of the Interior then issued a land freeze preventing the State from receiving further tentative approvals of its selections pending resolution of the native claims. Moreover, Congress, inthe Statehood Act, had reserved for itself the exclusive authority of defining native land rights through future legislation, so resolution by lawsuit was difficult. This impasse led to the enactment of the Alaska Native Claims Settlement Act whieh, forthe first time in Alaska, defined the land rights of the natives and allo wed the State to select its lands from the federal lands not set aside for the natives by the Settlement Act In contrast, in Hawaii the land rights of the natives were determined by a series of lawsfrom 1850 to 1898 subsequent to the Great Mahele of 1848, whieh established a mechanism for the acquisition of fee title. The Crown and Government lands established by the Great Mahele eventually became federal lands when Hawaii was annexed by the United States. Title to these lands was vested in the State of Hawaii by the Hawaiian Statehood Act, whieh does not contain a provision protecting native land rights similar to the one found in the Alaska Statehood Act. Therefore, the reasons whieh impelled passage of the Alaska Natives Claims Settlement Act are not present in the Hawaiian situation. ************ The purpose of this chapter is to examine the existing laws whieh are most likely to provide a basis for compensation to native Hawaiians for any loss of lands or loss of sovereignty. As set forth in detail here, the review shows that existing law provides no basis for such compensation. Therefore, special legislation would be required before any such payments could be made. Congress has responded in the past to native American claims: onee with the passage of the Indian Claims Commission Act in 1946, and again in 1971 with the Alaska Native Claims Settlement Act. For this Commission, the next step is to consider, as it formulates its recommendations at a later stage of its proceedings, whether it should recommend that, as a matter of policy taking all the facts of this Report into account. Congress should take action on compensation here. This report is being prepared under a statute whieh requires the Commission to direct its findings and recommendations to Congress. Therefore, consideration of such congressional action is particularly appropriate.