Nhsc-v1-347

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nhsc-v1-347

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For native groups, including Indian tribes and native Hawaiians, sovereignty "exists only at the sufferance of Congress and is subject to complete defeasance." 165/ In short, Congress can take away sovereignty of native groups at will, once it exercises sovereignty over the group. In terms of native Hawaiians, the United States was dealing with the government of Hawaii as another sovereign until 1898. Courts will not look behind the United States' recognition of a foreign government; so before 1898, no action of Congress could be regarded as taking the sovereignty of Hawaii. 166/

Even after 1898, any effect which Congress' actions may have had on the sovereignty of native Hawaiians cannot give rise to a compensable claim. Since Congress can take away the sovereignty of native groups at will, sovereignty is not a property right subject to the Fifth Amendment, and its loss is not compensable. 167/ Moreover, a claim of compensation for loss of sovereignty is not a viable cause of action, even under the liberal provisions of the Indian Claims Commission Act (60 Stat. 1049, 25 U.S.C. § 70, et seq). The legislative history of the Indian Claims Commission Act indicates no intention on the part of Congress to create a cause of action for loss of sovereignty and the Indian Claims Commission has so held. 168/ Even if there were theoretically a viable cause of action for loss of sovereignty under the Indian Claims Commission Act, the United States did not assume a special duty to protect the sovereignty of the native Hawaiians under either the Organic Act of 1900 or the Joint Resolution of Annexation (or under the one unratified treaty and two ratified treaties with Hawaii that pre-dated Annexation), so that the requirements for such a claim would not have been met. 169/ Further, such a claim would have to have been filed by 1951. 170/ The analysis under the Fifth Amendment and the Indian Claims Commission Act is not changed by the fact that the Joint Resolution was not submitted to a plebiscite in Hawaii. Indeed, it has been held that the Joint Resolution was legal and proper. 171/

The Alaska Native Claims Settlement Act (ANCSA) also does not appear to support the claim of compensation for loss of sovereignty. ANCSA compensated the Alaska Natives for loss of aboriginal title, if any, and for the termination of all claims based on that title. 172/ Furthermore, the legislative history of ANCSA shows that Congress did not intend to extinguish claims "based upon grounds other than the loss of original Indian title land." 173/ Since Congress did not intend to extinguish claims based upon grounds other than loss of aboriginal title, the compensation paid under ANCSA was clearly not payment for any claim for loss of sovereignty by the Alaskan Natives. In sum, ANCSA did not provide for compensation for loss of sovereignty by Alaskan Natives, and, therefore, provides no analogy for compensation to native Hawaiians for loss of sovereignty.

Therefore, the native Hawaiians have no present legal entitlement to compensation for any loss of sovereignty against the United Spates. 174/

E. TRUST RELATIONSHIP BETWEEN THE NATIVES OF HAWAII AND THE UNITED STATES

If a special trust relationship between the Federal Government and native Hawaiians exists that is very similar to the trust relationship between the Federal Government and United States Indian tribes, 175/ failure of the United States to meet

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