Nhsc-v1-368

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nhsc-v1-368

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177/ MacKenzie, pp. 85-86.

178/ Ibid., p. 87.

179/ United States v. Mitchell, 445 U.S. 535, 542-546 (1980), rehearing denied, 446 U.S. 992 (1980); Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct.Cl. 790, 797-800 (1970), cert. denied, 400 U.S. 819 (1970); White v. Califano, 437 F. Supp. 543, 554-555 (D.C.S.D. 1977), aff'd 581 F.2d 697 (8th Cir. 1978); Confederated Tribes of the Colville Reservation v. United States, 25 Ind.Cl.Comm. 99, 107 (1971); and Creek Nation v. United States, 20 Ind.Cl.Comm. 44, 60 (1968).

OHA cites Duncan v. United States, 667 F.2d 36 (1981) in support of its comment that the draft report erred in stating that fiduciary relationships can arise only under a treaty, statute, or agreement. However, certiorari has been granted in the buncan case; the decision of the Supreme Court on review is anticipated in the Spring of 1983. OHA also cites White v. Califano, 437 F.Supp. 543 (D.C.S.D. 1977), aff'd 581 F.2d 697 (8th Cir. 1978). However, the district court's finding of a fiduciary relationship was based upon Congress' declaration of policy found in the Indian Health Care Act, 25 U.S.C. §1601, et seq. (437 F.Supp. at 554-555). The policy declaration referred to the nation's "fulfillment of its special responsibilities and legal obligations to the American Indian people."

180/ Importantly, courts regard the determination of who is the sovereign of a country as a political question left to the determination of the political departments of government. Oetjen v. General Leather Co., 246 U.S. 297, 302 (1918); see also Baker v. Carr, 369 U.S. 186, 212 (1962). Regardless of whether the Hawaiian Government was in place during the 1890's because of the United States' influence, as long as the United States did not consider itself the sovereign of Hawaii it was not the sovereign. Therefore, the views of commenters that the Hawaiian Government of 1897-1898 was illegitimate does not change the foregoing analysis. See also United States v. Mowat, 582 F.2d 1194, 1206-1207 (9th Cir. 1978), cert. denied, 439 U.S. 967 (1978), which rejected the argument that the Joint Resolution of Annexation was illegal because its use was made possible by the Provisional Government that was allegedly a revolutionary and illegal government. Similarly, the "alleged illegality of the quitclaim ceremony of 1897" (see comments of Louis Agard, p. 25 and other commenters) was in fact the Hawaiian legislature's adoption of the law approving annexation and was perfectly lawful.

181/ Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-18 (1832).

182/ One commenter states that the "primary source from which a trust duty arises" is the "role of the United States and its agents in overthrowing the Hawaiian Government and the subsequent acquisition of almost 1.75 million acres of native land;" a "wrongdoing" that the United States never acknowledged (CHA's Comments, p. 30). It is further contended that "once the wrong was acknowledged, a duty would arise" (OHA's Comments, p. 30). Other commenters gave similar views in more general terms.

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