Nhsc-v1-369

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nhsc-v1-369

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This theory simply ignores the fact that since the Federal Government did not have sovereignty over the Hawaiian Islands prior to 1898, no fiduciary relationship could have existed with the native Hawaiians. Furthermore, acts of the Federal Government that might be deemed less than "fair and honorable" within the meaning of Section 2, Clause (5) of the Indian Claims Commission Act (the "fair and honorable dealings" clause) do not give rise to any fiduciary duty (Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct. CI. 790, 800 (1970), cert. denied, 400 U.S. 819 (1970)).

183/ Cf. Aleut Community of St. Paul Island v. United States, 202 Ct.Cl. 182, 196-198 (1973). Here the Court of Claims found that a "special relationship" (under Clause (5) of Section 2 of the Indian Claims Commission Act) existed between plaintiffs and the United States by virtue of duties assumed in statutes that consistently referred to "natives" or "native inhabitants" of the Pribilof Islands.

184/ See Navajo Tribe<u> v. <U>United States, 224 Ct.Cl. 171, 183-185 (1980). See also, to the same effect, American Indians Residing on the Maricopa Ax-Chin Reservation v. United States, ; Ct.Cl. , 667 F.2d 980, 990 (1981), cert. denied, 102 S.Ct. 2269 (1982).

185/ Navajo Tribe v. United States, 224 Ct.Cl. 171, 183-185 (1980).

186/ Act of July 9, 1921, 42 Stat. 108.

187/ Act of March 18, 1959, 73 Stat. 4.

188/ OHA's Comments, p. 30; Comments of Clarence Kamai.

<u>189/ The correctness is in doubt in light of Section 5 of the Admission Act discussed in the text above.

190/ See, e.g., United States v. Oneida Nation of New York, 217 Ct.Cl. 45, 55-59 (1978).

191/ Gila River Pima-Maricopa Indian Community, et al. v. United States, 190 Ct.Cl. 790, 800 (1970), cert. denied, 400 U.S. 819 (1970).

192/ 22 Op. Att'y Gen. 574, 576 (1899).

193/ United States v. Mitchell, 445 U.S. 535, 542 (1980), rehearing denied, 446 U.S. 992 (1980). Section 99 of the Organic Act (31 Stat, at 161) provided that the Crown Lands were "free and clear" of any trust.

194/ Compare with the situation in United States v. Oneida Nation of New York, 217 Ct.Cl. 45 (1978). There the Court of Claims held that there was a "special relationship" (under Clause (5) of Section 2 of the Indian Claims Commission Act) between the Federal Government and the Oneida Nation. The court held that by virtue of a 1784 treaty in which the Federal Government had promised to protect the Oneidas in the possession of the lands they occupied as of 1784, the United States had assumed a fiduciary relationship with the Oneida Nation with respect to such lands.

195/ Some commenters suggest there a close analogy between Alaska Native claims and Hawaiian native claims.

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