Nhsc-v1-348

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nhsc-v1-348

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the terms of the trust may (but does not necessarily) provide a basis for compensation. 176/ The theory has been advanced that, "It has long been recognized that a special relationship, characterized as a fiduciary relationship, exists between the Federal Government and Indian tribes," 177/ and that, "The federal-Hawaiian native relationship arises from United States' participation in the overthrow of the native government and subsequent federal ownership of the legal title to native lands." 178/

A fiduciary relationship between the Federal Government and an Indian tribe can, as a general rule, arise only from provisions of a treaty, statute, or agreement whereby the Government assumes fiduciary obligations toward the tribe. 179/ No fiduciary (trust) relationship arose from the fact that the United States Minister in Hawaii supported establishment of the Provisional Government in 1893. (Regarding this history, see preceding chapter.) The salient fact is that the Hawaiian Islands were not part of the United States in 1893, and the Federal Government exercised no sovereignty over them. 180/ The sovereignty of the Federal Government over Indian tribes arises from the fact that these tribes reside within the boundaries of the United States. 181/ In the absence of sovereignty over the Hawaiian Islands, no fiduciary relationship could have existed between the natives of Hawaii and the Federal Government in 1893, or at any time prior to annexation. 182/

The Joint Resolution of Annexation (Joint Resolution No. 55 of July 7, 1898, 30 Stat. 750) also did not give rise to a fiduciary relationship between the United States and the native Hawaiians. The Joint Resolution provided that the revenues or proceeds from the ceded land shall (with specified exceptions) "...be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." This language does not give rise to a fiduciary relationship with the native Hawaiians because it did not specify that the revenues and proceeds of the ceded lands were to be used solely for the benefit of the "native inhabitants of the Hawaiian Islands." 183/ Whether or not this language creates a trust relationship between the United States and all Hawaiians ("inhabitants") to superintend the use of these funds is a matter beyond the scope of this Commission, which is to examine the interests of native Hawaiians.

Similarly, the Organic Act of 1900 (31 Stat. 141) did not give rise to a trust relationship with the native Hawaiians. Section 73 of the Organic Act provided, in part, that iunds derived from the "sale or lease or other disposal" of the ceded lands shall be "applied to such uses and purposes for the benefit of the inhabitants of the Territory of Hawaii as are consistent with the joint resolution of annexation..." Again, if Congress had intended Section 73 to apply specifically to "native inhabitants," it would have so provided.

More importantly, Section 91 of the Organic Act indicates lack of any intent by Congress to establish a fiduciary relationship with the native Hawaiians. Section 91 provides that the lands ceded by the joint resolution of annexation were to:

...remain in the possession, use and control of the government of the Territory of Hawaii, and shall be maintained, managed and cared for by it, at its own expense...

Since Congress in Section 91 of the Organic Act specifically provided that the Territory of Hawaii and not the Federal Government would control and

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