Nhsc-v1-346

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nhsc-v1-346

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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 In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status...159/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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