Reid Ginoza at 03:44, 15 May 2006

2006-05-15T03:44:26Z

Reid Ginoza at 22:47, 10 March 2006

2006-03-10T22:47:21Z

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177/ MacKenzie, pp. 85-86.
178/ Ibid., p. 87.
179/ United States v. Mitchell,
445 U.S. 535, 542-546 (1980),
rehearing denied, 446 U.S. 992 (1980);
Gila River Pima-Maricopa Indian
Community, et al. v. United States,
190 Ct.Cl. 790, 797-800 (1970), cert.
denied, 400 U.S. 819 (1970); White v.
Califano, 437 F. Supp. 543, 554-555
(D.C.S.D. 1977), aff'd 581 F.2d 697
(8th Cir. 1978); Confederated Tribes
of the Colville Reservation v. United
States, 25 Ind.Cl.Comm. 99, 107
(1971); and Creek Nation v. United
States, 20 Ind.Cl.Comm. 44, 60
(1968).
OHA cites Duncan v. United States,
667 F.2d 36 (1981) in support of its
comment that the draft report erred in
stating that fiduciary relationships
can arise only under a treaty,
statute, or agreement. However,
certiorari has been granted in the
buncan case; the decision of the
Supreme Court on review is anticipated
in the Spring of 1983. OHA also cites
White v. Califano, 437 F.Supp. 543
(D.C.S.D. 1977), aff'd 581 F.2d 697
(8th Cir. 1978). However, the
district court's finding of a
fiduciary relationship was based upon
Congress' declaration of policy found
in the Indian Health Care Act, 25
U.S.C. §1601, et Beg. (437 F.Supp. at
554-555). The policy declaration
referred to the nation's "fulfillment
of its special responsibilities and
legal obligations to the American
Indian people."
180/ Importantly, courts regard
the determination of who is the
sovereign of a country as a political
question left to the determination of
the political departments of
government. Oetjen v. General
Leather Co., 246 U.S. 297, 302 (1918);
see also Baker v. Carr, 369 U.S.
186, 212 (1962). Regardless of
whether the Hawaiian Government was in
place during the 1890's because of the
United States' influence, as long as
the United States did not consider
itself the sovereign of Hawaii it was
not the sovereign. Therefore, the
views of commenters that the Hawaiian
Government of 1897-1898 was
illegitimate does not change the
foregoing analysis. See also United
States v. Mowat, 582 F.2d 1194,
1206-1207 (9th Cir. 1978), cert.
denied, 439 U.S. 967 (1978), which
rejected the argument that the Joint
Resolution of Annexation was illegal
because its use was made possible by
the Provisional Government that was
allegedly a revolutionary and illegal
government. Similarly, the "alleged
illegality of the quitclaim ceremony
of 1897" (see comments of Louis Agard,
p. 25 and other commenters) was in
fact the Hawaiian legislature's
adoption of the law approving
annexation and was perfectly lawful.
181/ Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1, 16-18 (1832).
182/ One commenter states that the
"primary source from which a trust
duty arises" is the "role of the
United States and its agents in
overthrowing the Hawaiian Government
and the subsequent acquisition of
almost 1.75 million acres of native
land;" a "wrongdoing" that the United
States never acknowledged (CHA's
Comments, p. 30). It is further
contended that "once the wrong was
acknowledged, a duty would arise"
(OHA's Comments, p. 30). Other
commenters gave similar views in more
general terms.
368

@@ Line 1: / Line 1: @@
-/ MacKenzie, pp. 85-86.
+<u>177</u>/ MacKenzie, pp. 85-86.
 / Ibid., p. 87.
-/ United States v. Mitchell,
+<u>178</u>/ <u>Ibid</u>., p. 87.
 U.S. 535, 542-546 (1980),
-rehearing denied, 446 U.S. 992 (1980);
+<u>rehearing denied</u>, 446 U.S. 992 (1980);
-Gila River Pima-Maricopa Indian
+<u>Gila River Pima-Maricopa Indian Community</u>, <u>et al</u>. v. <u>United States</u>,
-Community, et al. v. United States,
+Ct.Cl. 790, 797-800 (1970), <u>cert</u>.
-Ct.Cl. 790, 797-800 (1970), cert.
+<u>denied</u>, 400 U.S. 819 (1970); <u>White</u> v.
-denied, 400 U.S. 819 (1970); White v.
+<u>Califano</u>, 437 F. Supp. 543, 554-555
-Califano, 437 F. Supp. 543, 554-555
+(D.C.S.D. 1977), <u>aff'd</u> 581 F.2d 697
-(D.C.S.D. 1977), aff'd 581 F.2d 697
+(8th Cir. 1978); <U>Confederated Tribes of the Colville Reservation</u> v. <u>United States</u>, 25 Ind.Cl.Comm. 99, 107
-(8th Cir. 1978); Confederated Tribes
+(1971); and <u>Creek Nation</u> v. <u>United States</u>, 20 Ind.Cl.Comm. 44, 60
 (1968).
 OHA cites Duncan v. United States,
 F.2d 36 (1981) in support of its
 comment that the draft report erred in
@@ Line 22: / Line 21: @@
 can arise only under a treaty,
 statute, or agreement. However,
-certiorari has been granted in the
+<U>certiorari</u> has been granted in the
-buncan case; the decision of the
+<u>buncan</u> case; the decision of the
 Supreme Court on review is anticipated
 in the Spring of 1983. OHA also cites
-White v. Califano, 437 F.Supp. 543
+<u>White</u> v. <u>Califano</u>, 437 F.Supp. 543
-(D.C.S.D. 1977), aff'd 581 F.2d 697
+(D.C.S.D. 1977), <u>aff'd</u> 581 F.2d 697
 (8th Cir. 1978). However, the
 district court's finding of a
@@ Line 33: / Line 32: @@
 Congress' declaration of policy found
 in the Indian Health Care Act, 25
-U.S.C. §1601, et Beg. (437 F.Supp. at
+U.S.C. §1601, <u>et seq</u>. (437 F.Supp. at
 -555). The policy declaration
 referred to the nation's "fulfillment
@@ Line 39: / Line 38: @@
 legal obligations to the American
 Indian people."
 / Importantly, courts regard
 the determination of who is the
 sovereign of a country as a political
 question left to the determination of
 the political departments of
-government. Oetjen v. General
+government. <u>Oetjen</u> v. <u>General Leather Co.,</u> 246 U.S. 297, 302 (1918);
-Leather Co., 246 U.S. 297, 302 (1918);
+see also <u>Baker</u> v. <u>Carr</u>, 369 U.S.
 , 212 (1962). Regardless of
 whether the Hawaiian Government was in
@@ Line 57: / Line 56: @@
 Government of 1897-1898 was
 illegitimate does not change the
-foregoing analysis. See also United
+foregoing analysis. See also <u>United States</u> v. <u>Mowat</u>, 582 F.2d 1194,
-States v. Mowat, 582 F.2d 1194,
+-1207 (9th Cir. 1978), <u>cert</u>.
--1207 (9th Cir. 1978), cert.
+<u>denied</u>, 439 U.S. 967 (1978), which
 rejected the argument that the Joint
 Resolution of Annexation was illegal
@@ Line 73: / Line 71: @@
 adoption of the law approving
 annexation and was perfectly lawful.
 / Cherokee Nation v. Georgia,
 U.S. (5 Pet.) 1, 16-18 (1832).
 / One commenter states that the
 "primary source from which a trust
 duty arises" is the "role of the
@@ Line 90: / Line 90: @@
 commenters gave similar views in more
 general terms.
+{{p|368}}

Template:Nhsc-v1-368 - Revision history

Reid Ginoza at 03:44, 15 May 2006

Reid Ginoza at 22:47, 10 March 2006