Difference between revisions of "Template:Nhsc-v1-346"

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D. LOSS OF SOVEREIGNTY AND
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===D. LOSS OF SOVEREIGNTY AND COMPENSATION===
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COMPENSATION
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Native groups have a l s o made claims
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Native groups have also made claims
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t h a t they should be given compensation
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that they should be given compensation
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for loss of " s o v e r e i g n t y . " This
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for loss of "sovereignty." This
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s e c t i o n defines s o v e r e i g n t y and then
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section defines sovereignty and then
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c o n s i d e r s whether the law p r o v i d es
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considers whether the law provides
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compensation for i t s loss in the
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compensation for its loss in the
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c o n t e x t of the f a c t s r e l e v a n t to
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context of the facts relevant to
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n a t i v e Hawaiians.
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native Hawaiians.
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The Office of Hawaiian A f f a i rs
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d e f i n e s s o v e r e i g n t y as the power to
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The Office of Hawaiian Affairs
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c o n t r o l i n t e r n a l and e x t e r n a l a f f a i rs
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defines sovereignty as the power to
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and the r i g h t of s e l f - g o v e r n m e n t . 158/
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control internal and external affairs
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The United S t a t e s courts have examined
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and the right of self-government. <u>158</u>/
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t h e concept of s o v e r e i g n t y for I n d i an
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The United States courts have examined
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t r i b e s and t h a t c o n s i d e r a t i o n would be
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the concept of sovereignty for Indian
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a p p l i c a b l e as well to n a t i ve
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tribes and that consideration would be
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applicable as well to native
 
Hawaiians:
 
Hawaiians:
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The powers of the Indian
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t r i b e s are, in g e n e r a l,
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: The powers of the Indian tribes are, in general, "<u>inherent powers of a limited sovereignty which has never been extinguished...</u>" Before the coming of Europeans, the tribes were self-governing sovereign political communities. [Cites omitted].
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" i n h e r e n t powers of a l i m i t ed
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<br>: Indian tribes are, of course, no longer "possessed of the full attributes of sovereignty."...Their incorporation with the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised...But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: "Indian 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 unique and limited character. It 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...<u>159</u>/
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s o v e r e i g n t y which has never
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been e x t i n g u i s h e d . . . " Before
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The part of their sovereignty that
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t h e coming of Europeans, the
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Indian tribes have "implicitly lost by
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t r i b e s were s e l f - g o v e r n i ng
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virtue of their dependent status" is
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s o v e r e i g n p o l i t i c al
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the power to control their external
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communities. [Cites o m i t t e d ].
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relations with non-members of the
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I n d i a n t r i b e s a r e , of course,
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tribe. <u>160</u>/ As a result, Indian
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no longer "possessed of the
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tribes are not free to alienate their
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f u l l a t t r i b u t e s of
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land to non-Indians, to have "direct
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s o v e r e i g n t y . " . . . T h e i r
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commercial or governmental relations
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i n c o r p o r a t i o n with the
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with foreign nations, "or to exercise
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t e r r i t o r y of the United S t a t e s,
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criminal jurisdiction over non-members
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and t h e i r acceptance of i ts
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in tribal courts. <u>161</u>/
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p r o t e c t i o n , n e c e s s a r i ly
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d i v e s t e d them of some a s p e c ts
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The sovereignty <u>retained</u> Indian
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of the s o v e r e i g n t y which they
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tribes encompasses the power of tribal
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had p r e v i o u s l y e x e r c i s e d . . . B ut
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self-government and the power to
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our cases recognize that the
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control internal relations among the
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I n d i a n t r i b e s have not given up
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members of the tribe. <u>162</u>/ Thus,
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t h e i r f u l l s o v e r e i g n t y . We
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Indian tribes retain their power to
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have r e c e n t l y s a i d : "Indian
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determine trial membership, regulate
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t r i b e s are unique a g g r e g a t i o ns
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domestic relations, promulgate rules
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p o s s e s s i n g a t t r i b u t e s of
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of inheritance for tribal members, and
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s o v e r e i g n t y over both t h e ir
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exercise criminal jurisdiction over
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members and t h e i r t e r r i t o r y . . ."
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tribal members. <u>163</u>/
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The s o v e r e i g n t y that the Indian
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t r i b e s r e t a i n is of a unique
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For native Hawaiians, by analogy, there are claims that native Hawaiians
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and l i m i t e d c h a r a c t e r . It
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lost <u>all</u> attributes of sovereignty—
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e x i s t s only at the sufferance
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the power to deal with foreign
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of Congress and is s u b j e c t to
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nations, to control internal
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complete defeasance. But u n t il
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relations, and to govern themselves.
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Congress a c t s , the t r i b es
 
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r e t a i n t h e i r e x i s t i n g sovereiqn
 
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powers. In sum, Indian t r i b es
 
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s t i l l possess those aspects of
 
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s o v e r e i g n t y not withdrawn by
 
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t r e a t y or s t a t u t e , or by
 
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i m p l i c a t i o n as a necessary
 
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r e s u l t of t h e i r dependent
 
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s t a t u s . . . 1 5 9 /
 
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The p a r t of t h e i r s o v e r e i g n t y that
 
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Indian t r i b e s have " i m p l i c i t l y l o s t by
 
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v i r t u e of t h e i r dependent s t a t u s " is
 
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t h e power to c o n t r o l t h e i r e x t e r n al
 
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r e l a t i o n s with non-members of the
 
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t r i b e . 160/ As a r e s u l t , Indian
 
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t r i b e s are not free to a l i e n a t e t h e ir
 
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land to n o n - I n d i a n s , to have " d i r e ct
 
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commercial or governmental r e l a t i o ns
 
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with foreign n a t i o n s , " or to e x e r c i se
 
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.criminal j u r i s d i c t i o n over non-members
 
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i n t r i b a l c o u r t s . 161/
 
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The s o v e r e i g n t y r e t a i n e d by Indian
 
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t r i b e s encompasses the power of t r i b al
 
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s e l f - g o v e r n m e n t and the power to
 
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c o n t r o l i n t e r n a l r e l a t i o n s among the
 
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members of the t r i b e . 162/ Thus,
 
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I n d i a n t r i b e s r e t a i n t h e i r power to
 
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determine t r i b a l membership, r e g u l a te
 
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domestic r e l a t i o n s , promulgate rules
 
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of i n h e r i t a n c e for t r i b a l members, and
 
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e x e r c i s e criminal j u r i s d i c t i o n over
 
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t r i b a l members. 163/
 
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For n a t i v e Hawaiians, by analogy,
 
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t h e r e are claims that native Hawaiians
 
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l o s t a l l a t t r i b u t e s of s o v e r e i g n t y—
 
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t h e power to deal with foreign
 
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n a t i o n s , to c o n t r o l i n t e r n al
 
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r e l a t i o n s , and to govern themselves.
 
 
It has been argued that the power of
 
It has been argued that the power of
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self-government was e f f e c t i v e l y lost
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self-government was effectively lost
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with the e s t a b l i s h m e n t of the
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with the establishment of the
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P r o v i s i o n a l Government in 1893, and
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Provisional Government in 1893, and
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was t o t a l l y l o s t when the T e r r i t o r i al
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was totally lost when the Territorial
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Government was e s t a b l i s h e d pursuant to
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Government was established pursuant to
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t h e Organic Act of 1900 (31 S t a t.
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the Organic Act of 1900 (31 Stat.
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141). 164/ Even if h i s t o r y had f u l ly
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141). <u>164</u>/ Even if history had fully
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e s t a b l i s h e d these claims, which the
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established these claims, which the
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p r e c e d i n g chapter does not, native
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preceding chapter does not, native
 
Hawaiians could not be compensated for
 
Hawaiians could not be compensated for
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l o s s of s o v e r e i g n t y.
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loss of sovereignty.
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346
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Latest revision as of 18:15, 6 May 2006

D. LOSS OF SOVEREIGNTY AND COMPENSATION

Native groups have also made claims that they should be given compensation for loss of "sovereignty." This section defines sovereignty and then considers whether the law provides compensation for its loss in the context of the facts relevant to native Hawaiians.

The Office of Hawaiian Affairs defines sovereignty as the power to control internal and external affairs and the right of self-government. 158/ The United States courts have examined the concept of sovereignty for Indian tribes and that consideration would be applicable as well to native Hawaiians:

The powers of the Indian tribes are, in general, "inherent powers of a limited sovereignty which has never been extinguished..." Before the coming of Europeans, the tribes were self-governing sovereign political communities. [Cites omitted].


: Indian tribes are, of course, no longer "possessed of the full attributes of sovereignty."...Their incorporation with the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised...But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: "Indian 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 unique and limited character. It 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...159/

The part of their sovereignty that Indian tribes have "implicitly lost by virtue of their dependent status" is the power to control their external relations with non-members of the tribe. 160/ As a result, Indian tribes are not free to alienate their land to non-Indians, to have "direct commercial or governmental relations with foreign nations, "or to exercise criminal jurisdiction over non-members in tribal courts. 161/

The sovereignty retained Indian tribes encompasses the power of tribal self-government and the power to control internal relations among the members of the tribe. 162/ Thus, Indian tribes retain their power to determine trial membership, regulate domestic relations, promulgate rules of inheritance for tribal members, and exercise criminal jurisdiction over tribal members. 163/

For native Hawaiians, by analogy, there are claims that native Hawaiians lost all attributes of sovereignty— 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). 164/ Even if history had fully established these claims, which the preceding chapter does not, native Hawaiians could not be compensated for loss of sovereignty.

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