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American Indian Community Data Profile, 2002
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1997 Fall: Tribal Sovereignty and
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1996 Fall: Tribal Governments: What will they look like in the year 2010?
1996 Spring: The Threatened State of Tribal Sovereignty
Tribal Governments in 2010 - Trust Land
Jim Genia, Solicitor General for the Mille Lacs Band of Ojibwe, led the tribal trust lands sessions. In his historical overview, Genia explained that the unique status of trust lands in the federal land system can be traced to the paternalistic attitude of Europeans settling this country. Although the federal-tribal relationship was built on the concept of government to government relations, there was an attitude that negotiating with Indian tribes meant negotiating with a lesser party or a noble savage. This was based on the assumption that American Indians did not understand the notion of property. However, Genia noted an important distinction; Indians view property differently than traditional Europeans. For Indian people, he said, property is a shared community resource rather than an individually owned resource.
Overview of the Creation of Tribal Trust Lands
During the 1870s, the U.S. Congress passed a law that prohibited treaty-making, and an executive order created reservation shortly thereafter. The U.S. government believed the federal government must take care of the land for Indian people, as the government believed Indian people could not adequately care for land. Therefore, the federal government owned the land and held it in "trust" for a particular band or tribe.
For example, Genia explained that the 1837 treat of the Mille Lacs Band of Ojibwe relinquished 13 million acres of Indian land (land that we now know as Minnesota and Wisconsin). By the 1870s, the pine timber in this area had been logged to fuel westward expansion and the natural resource depleted, except for timber on the reservation. Land transfer from the U.S. government to logging companies ensued. The U.S. government issued deeds for homesteading on reservation land to non-Indians. Many of these homesteads were quickly sold to logging companies. By 1910, 61,000 acres of trust land had been reduced to 200 acres for the Mille Lacs Band of Ojibwe.
In fulfilling its trust responsibility, the U.S. government was and is required to hold all proceeds of land sales in trust. The proceeds of the sale of Mille Lacs Band land were supposed to provide education and health services for the tribe. However, they have seen little of this money. The MCT has challenged the federal government with mismanagement of funds and trust responsibility, and has request accountability from the BIA. In response, the BIA and the federal government have supplied more than 11 million pages of documentation for the Mille Lacs Band to review. Still, this has not dissuaded the Mille Lacs Band from pursuing the case. Recently they have purchased former reservation land with proceeds from gaming activities. Efforts are underway to place this land in trust as well. In 1990, trust lands for the Mille Lacs Band grew to 2,500 acres and by the end of 1996 to 12,000 acres.
Economic and Legal Aspects of Trust Lands
Genia suggested that the economic despair Indians face on reservations today has been compounded in several ways. The reservation trust land policy was poor in quality and lacking in resources. Also, land held in trust cannot be taxed by a county or a tribe to pay for public services.
The trust land issue is further complicated by sovereign immunity and inter-governmental relations. Congress is the only governing body which can amend treated in which trust lands are defined. In the 1940s, the MCT filed lawsuits against the U.S. government for failing to protect trust lands. However, because of sovereign immunity (a government cannot be sued without its consent), the federal government was immune from suit. The result was the Indians Claims Commission Act (25 U.S.C.A. 70, 1946), which established a process for Indian claims against the U.S. government. This act has since expired and tribes must again file with the U.S. Court of Claims.
Genia explained that the process of putting land into trust is complex and is under potential revision. Currently, this process is guided by a court case from the Eighth Circuit. In this case, the Lower Brule Tribe of South Dakota attempted to put land along a highway into trust; local units of government opposed the action. the tribe asked the BIA to act on its behalf since the BIA has authority to take land into trust under the 1934 Indian Reorganization Act (IRA; 25 U.S.C.A. 461, 1934). The Eighth Circuit Court held that for these purposed, the IRA was unconstitutional on the basis that the IRA delegated too much authority to the BIA. In an appeal tot he U.S. Supreme Court, the ruling was vacated and the case remanded to the BIA to develop new guidelines for entering land into trust.
In closing, Genia echoed the concerns that both Patrick Murphy and Paul Day raised for the future. As tribes become more prosperous, he suggested, the federal government may act in belligerent ways. In addition, state and local governments, citizen and sportsmen groups may continue to challenge requests that land be placed in trust.
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