Difference between revisions of "Template:Nhsc-v1-367"

Latest revision as of 22:24, 13 May 2006

164/ Of course, the United States exercised no sovereignty over the Hawaiian Islands in 1893. Additionally, the native Hawaiians were represented in the Territorial Government. See preceding chapter above.

165/ United States v. Wheeler, 435 U.S. 313, 323 (1977). OHA submits that the concept of sovereignty as it relates to Indian tribes is not applicable to the claims of the native Hawaiians, because whereas Indian tribes were "domestic dependent" nations with only powers of a limited sovereignty (OHA's Comments, Alternate Chapter III, p. 15), the native Hawaiians were "citizens of an aboriginal nation with internal and external attributes of sovereignty" (OHA's Comments, p. 28). -One commenter notes that until 1898 Hawaii was a separate, independent sovereign. Another commenter suggests that Hawaiians have a "claim to self-determination as a sovereign people." While it is true that Indian tribes had only internal attributes of sovereignty, the salient fact remains that under traditional principles of Indian law, Indian tribes have not been allowed to recover for the loss of those attributes of sovereignty that they do possess, even under Section 2, Clause (5) of the Indian Claims Commission Act (25 U.S.C. §70 (a)) which encompasses "moral" claims (Confederated Tribes of the Colville Reservation v. United States, 25 Ind.Cl.Comm. 99, 103 (1971)). Moreover, native Hawaiians are citizens of the United States and the State of Hawaii, their sovereigns.

166/ Such matters are regarded as a political question. • See, e.g., Baker v. Carr, 369 U.S. 186, 212 (1962).

167/ See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 285 (1955). The Fifth Amendment provides that the United States shall not take property without just compensation.

168/ Confederated Tribes of the Colville Reservation v. United States, 25 Ind.Cl.Comm. 99, 104 (1971).

169/ Fort Sill Apache Tribe of the State of Oklahoma v. United States, 201 Ct.Cl. 630, 640-642 (1973).

170/ See Section 12 of the Act, 25 U.S.C. § 70(k).

171/ United States v. Mowat, 582 F.2d 1194, 1206-1207 (9th Cir. 1978), cert. denied, 439 U.S. 967 (1978).

172/ Inupiat Community of the Arctic Slope v. United States, Ct.Cl. ,680 F.2d 122, 129 (1982), cert. denied, 103 S.Ct. 299 (1982).

173/ Aleut Community of St. Paul Island v. United States, 202 Ct.Cl. 182, 195 (1973).

174/ OHA does not dispute this conclusion (OHA's Comments, Alternate Chapter III, p. 16) and concedes that "...no Constitutional or statutory provision requires the United States to recognize a claim for loss of sovereignty" (CHA's Comments, p. 29). However, OHA asserts that there may be a "moral duty on the part of the United States to provide reparations or restitution" (OHA's Comments, Alternate Chapter III, p. 16).

175/ MacKenzie, p. 57.

176/ E.g., United States v. Mitchell, 445 U.S. 535, 542-546 (1980), rehearing denied, 446 U.S. 992 (1980).