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American Indian Community Data Profile, 2002
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1997 Fall: Tribal Sovereignty and
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1996 Spring: The Threatened State of Tribal Sovereignty
Trust responsibility
"The progress that the tribes made in the last 50 years is rolling back to the '50s where people are talking about terminating Indian tribes. The conscience of the dominant society has changed," said Bobby Whitefeather, Red Lake tribal chairman, in opening discussion of the relationship between the federal government and Indian tribes.
The United States Constitution, which is patterned after the Great Law of the Iroquois Confederacy, recognized Indian tribes as sovereign nations. During the colonial period and the infancy of the United States, tribes exerted great influence on the Europeans living in North America. Tribes were considered military and political equals, and were often key allies in power struggles between the colonies and the Old World countries.
However, when the military power of Indian nations waned, some people in the United States began to view them as subservient even though the legal nation to nation relationship remained the same.
As late as the 1830s, the Supreme Court recognized that the relationship between Indian tribes and the United States was that of one nation to another. This relationship did not involve states or local governments. In fact, in Worchester v. Georgia, the Supreme Court ruled that because of the nationhood of the Cherokee Tribe, the laws of Georgia could have no force on them.
"The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense," writes the Supreme Court.
What has changed in the twentieth century is not the legal relationship between United States and Indian tribes, but rather the perspective. As the United States followed Manifest Destiny westward consuming land and resources, tribes began to be looked upon as dependent domestic nations instead of as foreign nations. As domestic nations within another nation, the federal government has a responsibility to protect the interests of Indians.
"The trust relationship evolved judicially and survived occasional congressional attempts to terminate the government's obligations to Indians. In theory, the trust relationship exists to protect tribes and individual Indians. However, in practice, the federal trustee has at times not worked in the best interests of the intended beneficiaries," according to attorney Larry Leventhal, writing for the Hamline Law Review. One way to conceptualize trust responsibility is to think of it as treaty responsibility, said Dennis King, an Oglala tribal council member. The federal government still has the responsibility to honor agreements and treaties, which is why it is important for Indians to be knowledgeable about the treaties that affect them.
Often the promises made by the United States in treaties are enforceable under the trust doctrine. In a 1983 decision, United States v. Mitchell, the Supreme Court developed a standard for determining liability arising from a breach of trust responsibility.
It's important to note that although federal trust responsibility arises out a the nationhood of tribes, the trust doctrine also applies to individual Indians. This is unlike sovereignty and sovereign immunity, which can only be applied to nations.
The American Indian Policy Review Commission, set up by Congress in 1975, called federal trust responsibility the most important as well as the most misunderstood concept in Federal-Indian relations.
Part of the misunderstanding may stem from actions of Congress. The federal government has often acted inconsistently with and in opposition to the principles of trust doctrine, leaving the public and many tribes confused.
The AIPRC defined the United States as a fiduciary whose actions were to be judged by the highest standards. Because the federal government has so much control over the resources of Indian nations and individual Indians, the trust doctrine is implied in dealings even if not implicitly stated.
Trust responsibility affect everything the federal government is involved in, from education and health care to trust lands and the Bureau of Indian Affairs.
In his term in office, President Bill Clinton acknowledged the broad trust responsibility of the federal government. In an Executive Memorandum, he directed all cabinet heads and departments to work with tribes in a government-to-government relationship.
Trust responsibility has come under challenge by Congress as budget cuts have reduced services guaranteed to tribes through treaties. "When things are not going well, the federal government wants out from under trust responsibility," Whitefeather said.
Public attention has focused on a small number of tribes that have been visibly successful through casino gambling. Public perception tends to lump all tribes into that same category. Clearly there is a need for more public awareness of the legal and political framework that has shaped federal-tribal relations.
Many Indians have been reexamining trust responsibility too, and finding that the federal government has not lived up to its principles. In just one example, the Bureau of Indian Affairs mismanagement and complete lack of accounting of funds has resulted in the disappearance of billions of dollars of Indian money.
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Tuesday November 1, 2005