Nhsc-v1-359

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nhsc-v1-359

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responsibilities relating to that group (see OHA's Comments, pp. 29-30), liability turns on whether a "special relationship was created" (Cf. 180 Ct.Cl. at 502). Yet the wrongs complained of (i.e., United States' participation in the fall of the monarchy and the annexation of Hawaii) (see OHA's Comments, p. 30) cannot give rise to a "special relationship" under Clause (5). See Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct.Cl. 790, 800 (1970), cert. denied, 400 U.S. 819 (1970).

Finally, the central government under the Articles of Confederation possessed considerable jurisdiction over Indian affairs within the States. See United States v. Oneida Nation of New York, 217 Ct.Cl. 45, 62-65 (1978). By contrast, the Federal Government had no jurisdiction over native Hawaiian affairs prior to 1898.

73/ Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955).

74/ Tee-Hit-Ton Indians v. United States, supra, at 284-285. See also Inupiat Community of the Arctic Slope v. United States, Ct.Cl. 680 F.2d 122, 128-129 (1982), cert. denied, 103 S.Ct. 299 (1982).

75/ See e.g., Fort Sill Apache Tribe of the State of Oklahoma v. United States, 22 Ind.Cl.Comm. 527, 543 (1970).

76/ One commenter suggests that the statute of limitations is unfair since some native Hawaiians were born after 1951 and could not have filed claims earlier. However, the Indian Claims Commission Act is designed to compensate the claims of appropriate groups of individuals, not the claims of individuals. If they were qualified to file a claim under the Act, native Hawaiians did not file before August 13, 1951.

77/ MacKenzie, pp. 75-76, 83.

78/ Sac and Fox Tribe of Indians of Oklahoma v. United States, 161 Ct.Cl. 189, 197 (1963), cert. denied, 375 U.S. 921 (1963).

79/ Ibid., emphasis added.

80/ Ibid., p. 192.

81/ Sovereignty over Indian tribes comes from their presence within the territorial boundaries of the United States. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-18 (1832).

82/ See MacKenzie, p. 76. She argues that the 1848 Act affirmed the aboriginal title in these lands "to the Hawaiian people as a collective group" and "recognized the traditional use rights of native tenants." She further contends that deeds executed by Kamehameha III and approved by the Hawaiian legislature evidenced recognized title. Ibid., p. 83.

83/ Sac and Fox Tribe v. United States, supra, 161 Ct.Cl. at 192.

84/ The theory that these acts do accord recognized title is in MacKenzie, pp. 83-85. For discussion of these treaties see preceding chapter above.

85/ Coos Bay, Lower Umqua and Siuslaw Indian Tribes v. United States, 87 Ct.Cl. 143, 153 (1938), cert. denied, 306 U.S. 653 (1939).

86/ Sac and Fox Tribe v. United States, supra, 161 Ct.Cl. at 192-193; and Northwestern Band of Shoshone Indians v. United States, 95 Ct.Cl, 642, 657-661, 681-684 (1942).

87/ See also United States v. Mowat, 582 F.2d 1194, 1206 (9th Cir. 1978), cert. denied, 439 U.S. 967 (1978), which implies that the native Hawaiians had no recognized title to the lands at issue.

88/ OHA's Comments, pp. 23, 25-26.

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