Jennifer Wada at 10:43, 7 May 2006

2006-05-07T10:43:34Z

Reid Ginoza at 20:59, 10 March 2006

2006-03-10T20:59:14Z

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The Commission held that by virtue
of the 1846 treaty "...the United
States had assumed the role of
protector of those Texas Indians who
participated in that treaty. In our
judgment the Federal Government did
not fulfill its role as protector of
the Indians" (36 Ind.Cl.Comm. at
18-79). Under the circumstances the
aboriginal rights of the plaintiff
tribes had been "effectively
extinguished by the United States" (36
Ind.Cl.Comm. at 19).
Even assuming, arguendo, that the
Provisional Government extinguished
the aboriginal title, if any, of the
native Hawaiians to the Crown and
Government lands, it does not follow
that the United States would incur any
liability for the acts of the
Provisional Government on the basis of
th,e Lipan Apache decision. This is
because there are crucial differences
between the situation in Lipan Apache
and the situation here. First, Texas
had been annexed by the United States
and was part of the United States
before the acts of third parties in
question took place. By contrast, in
1893, the Hawaiian Islands were not
part of the territory of the United
States. Second, after the annexation
of Texas, the United States was "in
charge of Indian Affairs" in Texas (36
Ind.Cl.Comm. at 18). By comparison,
as of 1893 the United States had no
control over the affairs of native
Hawaiians; sovereignty over native
peoples only arises when their lands
become included within the territorial
boundaries of the United States
(Cherokee Nation v. Georgia, 30 U.S.
(5 Pet.) 1, 16-18 (1835)). Most
importantly, in Lipan Apache the
United States had assumed a duty to
protect the Texas tribes that were
parties to the 1846 treaty, thereby
giving rise to a "special
relationship" within the meaning of
Section 2, Clause (5) of the Indian
Claims Commission Act (25 U.S.C.
§70a). Prior to 1893 (or 1898) the
United States had entered into no
treaty with either the Kingdom of
Hawaii or the native Hawaiians as a
3
group whereby it assumed the duty of
protecting the native Hawaiians
(including any duty to protect their
possession of lands that they
occupied). £f_. compare with United
States v. Oneida Nation of New York,
217 Ct.Cl. 45, 55-59 (1978) which held
there was a "special relationship"
with the Oneida Nation because in a
1784 treaty the Federal Government had
promised to protect the Oneidas in the
possession of the lands the Oneidas
occupied as of 1784.
72/ Senator Inouye states: "...it
could be argued that the United States
exercised some measure of control over
the Hawaiian Islands long before
annexation" (Senator Inouye's
Comments, p. 37, note 17).
It has been suggested that the
United States might be held liable
under Section 2, Clause (5) for the
Indians' loss of title to lands (which
had never been part of the public
domain of the United States) where
there is "true concert, partnership or
control of the Federal Government"
with regard to the specific acts of
third parties which effected an
extinguishment of title. Six Nations,
etc. v. United States, 173 Ct.Cl. 899,
904, 907-909 (1965). However, there
are no decisions holding the United
States liable under Clause (5) for the
acts of third parties on the grounds
of "true concert, partnership or
control of the Federal Government."
Moreover, in Lipan Apache Tribe, et
al. v. United States, 180 Ct.Cl. 487,
502 (1967) the Court noted the
language from the Six Nations opinion,
but stated with respect to Section 2,
Clause (5): "In any event, the United
States is held liable under this 'fair
and honorable dealings' clause not
because it has title to the property,
but because, by its own acts, it has
undertaken special duties which it has
failed to fulfil" (180 Ct.Cl. 502).
The comments have not established the
existence of any special duties owed
to the native Hawaiians. In addition,
where a native group claims that the
United States undertook certain trust

@@ Line 12: / Line 12: @@
 extinguished by the United States" (36
 Ind.Cl.Comm. at 19).
 Even assuming, arguendo, that the
 Provisional Government extinguished
 the aboriginal title, if any, of the
@@ Line 20: / Line 21: @@
 liability for the acts of the
 Provisional Government on the basis of
-th,e Lipan Apache decision. This is
+the <u>Lipan Apache</u> decision. This is
 because there are crucial differences
-between the situation in Lipan Apache
+between the situation in <u>Lipan Apache</u>
 and the situation here. First, Texas
 had been annexed by the United States
@@ Line 40: / Line 41: @@
 become included within the territorial
 boundaries of the United States
-(Cherokee Nation v. Georgia, 30 U.S.
+(<u>Cherokee Nation</u> v. <u>Georgia</u>, 30 U.S.
 (5 Pet.) 1, 16-18 (1835)). Most
-importantly, in Lipan Apache the
+importantly, in <u>Lipan Apache</u> the
 United States had assumed a duty to
 protect the Texas tribes that were
@@ Line 54: / Line 55: @@
 treaty with either the Kingdom of
 Hawaii or the native Hawaiians as a
 group whereby it assumed the duty of
 protecting the native Hawaiians
 (including any duty to protect their
 possession of lands that they
-occupied). £f_. compare with United
+occupied). <u>Cf</u>. compare with <u>United
-States v. Oneida Nation of New York,
+States</u> v. <u>Oneida Nation of New York</u>,
 Ct.Cl. 45, 55-59 (1978) which held
 there was a "special relationship"
@@ Line 68: / Line 68: @@
 possession of the lands the Oneidas
 occupied as of 1784.
 / Senator Inouye states: "...it
 could be argued that the United States
 exercised some measure of control over
@@ Line 74: / Line 75: @@
 annexation" (Senator Inouye's
 Comments, p. 37, note 17).
 It has been suggested that the
 United States might be held liable
@@ Line 92: / Line 94: @@
 of "true concert, partnership or
 control of the Federal Government."
-Moreover, in Lipan Apache Tribe, et
+Moreover, in <u>Lipan Apache Tribe, et
-al. v. United States, 180 Ct.Cl. 487,
+al.</u> v. <u>United States</u>, 180 Ct.Cl. 487,
 (1967) the Court noted the
-language from the Six Nations opinion,
+language from the <u>Six Nations</u> opinion,
 but stated with respect to Section 2,
 Clause (5): "In any event, the United
@@ Line 109: / Line 111: @@
 where a native group claims that the
 United States undertook certain trust

Template:Nhsc-v1-358 - Revision history

Jennifer Wada at 10:43, 7 May 2006

Reid Ginoza at 20:59, 10 March 2006