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supervise the ceded lands, no fiduciary or trust relationship between the native Hawaiians and the Federal Government exists. 184/

The fact that the title to the ceded lands was held by the United States did not give rise to a fiduciary relationship because Congress provided that the Territory of Hawaii would control and supervise these lands—not the Federal Government. 185/ Furthermore, pursuant to Section 5 of the Hawaii Admission Act (Act of March 18, 1959, 73 Stat. 4,5), the United States granted the State of Hawaii "the United States' title to all the public lands, and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission to the Union." Since fee title to much of the ceded lands is no longer held by the Federal Government, no fiduciary relationship now exists as to the ceded lands, in any event.

Some commenters on the Commission's Draft Report assert that the Hawaiian Homes Commission Act of 1921 186/ and Hawaii's Admission Act 187 "unequivocally establish a trust relationship between Native Hawaiians and the Federal Government." 188/ Yet even assuming this assertion is correct, 189/ such specific trusts do not establish the existence of a general trust that might require compensation for the Government and Crown lands. Only a trust duty with respect to these lands that arose prior to 1893 or 1898 might require payment of compensation. A trust duty must come into existence before it can be breached. 190/ Here, the acts that supposedly constituted the breach (that is, the Federal Government's participation in the fall of the Hawaiian monarchy and annexation) are said to have simultaneously given rise to the alleged trust duty. Yet the acts of breach cannot create a trust relationship. 191/

Even if a trust relationship between the Hawaiian natives and the Federal Government were to exist with respect to the Crown and Government lands (by virtue of the Joint Resolution of Annexation and the Organic Act), it is, at most, a very limited trust relationship. The requirement that revenues or proceeds from the ceded lands were (with certain exceptions) to be used "solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes" was at most a "special trust" that "merely restricted the uses to which the proceeds of such lands [the public lands of Hawaii] could be put." 192/ Additionally, even though the proceeds or revenues from the ceded lands may have been the subject of a "special trust," and even though the Federal Government held fee title to the ceded lands, these two circumstances did not "impose upon the Government all fiduciary duties ordinarily placed by equity upon a trustee." 193/ This limited trust relationship, if any, did not encompass any fiduciary duty of the Federal Government bo protect the native Hawaiians in the possession of their lands because the Federal Government never assumed any such duty. 194/

There is most likely no specified trust relationship between the United States and the native Hawaiians established by law of the United States, requiring compensation to be paid for the Crown and Government lands or for loss of sovereignty. At most there is a very limited special trust. Native Hawaiians are therefore not entitled under existing law to compensation for any breach of a trust duty toward them.


The legal claims of the Alaska Natives that motivated passage of the Alaska Native Claims Settlement Act