Reid Ginoza at 02:21, 7 May 2006

2006-05-07T02:21:31Z

Reid Ginoza at 20:54, 10 March 2006

2006-03-10T20:54:34Z

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the terms of the trust may (but does
not necessarily) provide a basis for
compensation. 176/ 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," 177/ and that, "The
federal-Hawaiian 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."
178/
A fiduciary relationship between
the Federal Government and an Indian
tribe can, as a general rule, arise
only from provisions of a treaty,
statute, or agreement whereby the
Government assumes fiduciary
obligations toward the tribe. 179/ No
fiduciary (trust) relationship arose
from the fact that the United States
Minister in Hawaii supported
establishment of the Provisional
Government in 1893. (Regarding this
history, see preceding chapter.) The
salient fact is that the Hawaiian
Islands were not part of the United
States in 1893, and the Federal
Government exercised no sovereignty
over them. 180/ The sovereignty of
the Federal Government over Indian
tribes arises from the fact that these
tribes reside within the boundaries of
the United States. 181/ 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. 182/
The Joint Resolution of Annexation
(Joint Resolution No. 55 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 public
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." 183/ 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, which is to examine the
interests 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 iunds
derived from the "sale or 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 lack 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 91 of the
Organic Act specifically provided that
the Territory of Hawaii and not the
Federal Government would control and
348

@@ Line 1: / Line 1: @@
 the terms of the trust may (but does
 not necessarily) provide a basis for
-compensation. 176/ The theory has
+compensation. <U>176</u>/ The theory has
 been advanced that, "It has long
 been recognized that a special
@@ Line 7: / Line 7: @@
 fiduciary relationship, exists
 between the Federal Government and
-Indian tribes," 177/ and that, "The
+Indian tribes," <u>177</u>/ and that, "The
 federal-Hawaiian native
 relationship arises from United
@@ Line 14: / Line 14: @@
 and subsequent federal ownership of
 the legal title to native lands."
-/
+<u>178</u>/
 A fiduciary relationship between
 the Federal Government and an Indian
@@ Line 21: / Line 22: @@
 statute, or agreement whereby the
 Government assumes fiduciary
-obligations toward the tribe. 179/ No
+obligations toward the tribe. <u>179</u>/ No
 fiduciary (trust) relationship arose
 from the fact that the United States
@@ Line 32: / Line 33: @@
 States in 1893, and the Federal
 Government exercised no sovereignty
-over them. 180/ The sovereignty of
+over them. <U>180</u>/ The sovereignty of
 the Federal Government over Indian
 tribes arises from the fact that these
 tribes reside within the boundaries of
-the United States. 181/ In the
+the United States. <u>181</u>/ In the
 absence of sovereignty over the
 Hawaiian Islands, no fiduciary
@@ Line 42: / Line 43: @@
 between the natives of Hawaii and the
 Federal Government in 1893, or at any
-time prior to annexation. 182/
+time prior to annexation. <u>182</u>/
 The Joint Resolution of Annexation
 (Joint Resolution No. 55 of July 7,
@@ Line 54: / Line 56: @@
 used solely for the benefit of the
 inhabitants of the Hawaiian Islands
-^for educational and other public
+for educational and other public
 purposes." This language does not
 give rise to a fiduciary relationship
@@ Line 61: / Line 63: @@
 proceeds of the ceded lands were to be
 used solely for the benefit of the
-"native inhabitants of the Hawaiian
+"<U>native</u> inhabitants of the Hawaiian
-Islands." 183/ Whether or not this
+Islands." <u>183</u>/ Whether or not this
 language creates a trust relationship
 between the United States and all
@@ Line 70: / Line 72: @@
 Commission, which is to examine the
 interests of native Hawaiians.
 Similarly, the Organic Act of 1900
 (31 Stat. 141) did not give rise to a
@@ Line 86: / Line 89: @@
 inhabitants," it would have so
 provided.
 More importantly, Section 91 of the
 Organic Act indicates lack of any
@@ Line 93: / Line 97: @@
 the lands ceded by the joint
 resolution of annexation were to:
 ...remain in the possession,
-use and control of the
+: ...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...
 government of the Territory of
 Since Congress in Section 91 of the
 Organic Act specifically provided that
 the Territory of Hawaii and not the
 Federal Government would control and
+{{P|348}}

Template:Nhsc-v1-348 - Revision history

Reid Ginoza at 02:21, 7 May 2006

Reid Ginoza at 20:54, 10 March 2006