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The Commission held that by virtue of the 1846 treaty "...the United States had assumed the role of protector of those Texas Indians who participated in that treaty. In our judgment the Federal Government did not fulfill its role as protector of the Indians" (36 Ind.Cl.Comm. at 18-79). Under the circumstances the aboriginal rights of the plaintiff tribes had been "effectively extinguished by the United States" (36 Ind.Cl.Comm. at 19).
Even assuming, arguendo, that the Provisional Government extinguished the aboriginal title, if any, of the native Hawaiians to the Crown and Government lands, it does not follow that the United States would incur any liability for the acts of the Provisional Government on the basis of the Lipan Apache decision. This is because there are crucial differences between the situation in Lipan Apache and the situation here. First, Texas had been annexed by the United States and was part of the United States before the acts of third parties in question took place. By contrast, in 1893, the Hawaiian Islands were not part of the territory of the United States. Second, after the annexation of Texas, the United States was "in charge of Indian Affairs" in Texas (36 Ind.Cl.Comm. at 18). By comparison, as of 1893 the United States had no control over the affairs of native Hawaiians; sovereignty over native peoples only arises when their lands become included within the territorial boundaries of the United States (Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-18 (1835)). Most importantly, in Lipan Apache the United States had assumed a duty to protect the Texas tribes that were parties to the 1846 treaty, thereby giving rise to a "special relationship" within the meaning of Section 2, Clause (5) of the Indian Claims Commission Act (25 U.S.C. §70a). Prior to 1893 (or 1898) the United States had entered into no treaty with either the Kingdom of Hawaii or the native Hawaiians as a group whereby it assumed the duty of protecting the native Hawaiians (including any duty to protect their possession of lands that they occupied). Cf. compare with United States v. Oneida Nation of New York, 217 Ct.Cl. 45, 55-59 (1978) which held there was a "special relationship" with the Oneida Nation because in a 1784 treaty the Federal Government had promised to protect the Oneidas in the possession of the lands the Oneidas occupied as of 1784.
72/ Senator Inouye states: "...it could be argued that the United States exercised some measure of control over the Hawaiian Islands long before annexation" (Senator Inouye's Comments, p. 37, note 17).
It has been suggested that the United States might be held liable under Section 2, Clause (5) for the Indians' loss of title to lands (which had never been part of the public domain of the United States) where there is "true concert, partnership or control of the Federal Government" with regard to the specific acts of third parties which effected an extinguishment of title. Six Nations, etc. v. United States, 173 Ct.Cl. 899, 904, 907-909 (1965). However, there are no decisions holding the United States liable under Clause (5) for the acts of third parties on the grounds of "true concert, partnership or control of the Federal Government." Moreover, in Lipan Apache Tribe, et al. v. United States, 180 Ct.Cl. 487, 502 (1967) the Court noted the language from the Six Nations opinion, but stated with respect to Section 2, Clause (5): "In any event, the United States is held liable under this 'fair and honorable dealings' clause not because it has title to the property, but because, by its own acts, it has undertaken special duties which it has failed to fulfil" (180 Ct.Cl. 502). The comments have not established the existence of any special duties owed to the native Hawaiians. In addition, where a native group claims that the United States undertook certain trust
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