Transcript CHECKS AND BALANCES - Society of American Indian

Trust Responsibility
June 10, 2014
Albuquerque, New Mexico
Stephen L. Pevar
STATUTES: EXAMPLES
Indian Tribal Justice Support Act (25 U.S.C. § 3601):
"(1) there is a Government-to-Government relationship between
the United States and each Indian tribe; [and]
(2) the United States has a trust responsibility to each tribal
government that includes the protection of the sovereignty of
each tribal government."
Federal Oil and Gas Royalty Management Act (30 U.S.C. § 1701):
Noting that one purpose of this law is "to fulfill the trust
responsibility of the United States for the administration of
Indian oil and gas reserves."
STATUTES (cont.)
Indian Health Care and Improvement Act (25 U.S.C. § 1601):
"Federal health services to maintain and improve the health of
the Indians are consonant with and required by the Federal
Government's historical and unique legal relationship with, and
resulting responsibility to, the American Indian people."
The No Child Left Behind Act (20 U.S.C. 7401):
Stating that one purpose of this law is "to fulfill the Federal
Government's unique and continuing trust relationship with and
responsibility to the Indian people for the education of Indian
children."
ORIGIN OF THE TRUST RESPONSIBILITY
Between 1776 and 1871, Congress entered into nearly 400
treaties with Indian tribes. Indian tribes were very powerful during
this time. The purpose of nearly all of these treaties was to
obtain Indian land at the least cost to the federal government.
In exchange for Indian land, the government typically promised
that it would set aside a reservation for the tribe, and would
guarantee and respect the tribe's sovereignty on, and control
over, that land.
ORIGIN (cont.)
Virtually every treaty assured the Indians that they would be
protected by the United States.
Treaty of Hopewell with the Cherokee Nation (1785):
The United States guarantees "peace to all the Cherokees"
and promises "to receive them into the favor and protection
of the United States."
ORIGIN (cont.)
Treaty with the Navajo Nation (1849):
The United States guarantees that the tribe would be placed
"under the exclusive jurisdiction and protection of the
Government" and the federal government will ensure "the
permanent prosperity and happiness of said Indians."
Treaty with the Yankton Sioux Tribe (1858):
The tribe relinquished claim to 11 million acres of land in
exchange for a guarantee from the federal government "to
protect the said [tribe] in the quiet and peaceful possession" of its
remaining territory.
ORIGIN (cont.)
"Protection" does not imply domination, control, or surrender of
sovereignty.
As the Supreme Court stated in Worcester v. Georgia, 31 U.S. 515
(1832) with respect to the Treaty of Hopewell: "The Cherokees
acknowledge themselves to be under the protection of the United
States, and of no other power. Protection does not imply the
destruction of the protected….A weak state, in order to provide for
its safety, may place itself under the protection of one more
powerful, without stripping itself of the right of government."
SCOPE OF THE TRUST RESPONSIBILITY
Two ways of interpreting the scope of the trust responsibility:
1. Narrow interpretation: only those duties expressly set forth in
treaties or statutes. (This is the least the government must do.)
2. Broad interpretation:
(a) Support tribal self-government.
(b) Promote tribal economic independence.
(c) Enhance tribal political and cultural well-being.
THE TRUST RESPONSIBILITY STANDARD
The federal government's dealings with Indian tribes must "be
judged by the most exacting fiduciary standards."
Seminole Nation v. United States, 316 U.S. 286, 297 (1942).
"[T]he law is well established that the Government in its dealings
with Indian tribal property acts in a fiduciary capacity."
Lincoln v. Vigil, 508 U.S. 182, 194 (1993).
A fiduciary standard is the highest standard in the law of trusts.
STATUTES CAN CREATE TRUST
RESPONSIBILITIES
"Congress may fulfill its treaty obligations and its responsibilities
to the Indian tribes by enacting legislation dedicated to their
circumstances and needs."
Rice v. Cayetano, 528 U.S. 495, 519 (2000)
United States v. Mitchell, 445 U.S. 535 (1980) ("Mitchell I")
United States v. Mitchell, 463 U.S. 206, 225(1983) ("Mitchell II").
COURT CASES
1. Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252
(D.D.C. 1972), rev'd on other grounds, 499 F.2d 1095 (D.C. Cir. 1974).
2. Cheyenne-Arapaho Tribes of Oklahoma v. United States, 966 F.2d
583, 590-91 (10th Cir. 1992), cert. denied, 507 U.S. 1003 (1993).
"Since the proposed plan was reasonable and appropriate, Woods
argues, the Secretary's approval was within his discretion.
[Woods'] argument completely ignores the fiduciary relationship
between the Secretary and the Tribe. When the Secretary is
obligated, as in this case, to act as a fiduciary, then his actions
must not merely meet the minimal requirements of administrative
law, but must also pass scrutiny under more stringent standards
demanded of a fiduciary.”
COURT CASES
3. Paravano v. Babbitt, 70 F.3d 539, 547-48 (9th Cir. 1995).
"The tribes' federally reserved fishing rights are accompanied by a
corresponding duty on the part of the government to preserve
those rights. . . .Secretary Brown is a trustee of tribal interests as
well as an administrator of [the nation’s fisheries]; he properly
considered the Tribes' federally reserved fishing rights in issuing
emergency regulations reducing ocean harvest limits of the
Klamath chinook."
4. Wilkinson v. United States, 440 F.3d 970, 975 (9th Cir. 2006).
"The BIA has a fiduciary obligation to Indian landowners. . . .The
BIA is not related to the FSA [and] owes no general fiduciary
obligation to the FSA."
COURT CASES
5. United States v. Jicarilla Apache Nation, 131 S.Ct. 2313, 2327-28
(2011).
"The United States has a sovereign interest in the administration
of Indian trusts distinct from the private interests of those who
may benefit from its administration.”
“While one purpose of the Indian trust relationship is to benefit
the tribes, the Government has its own independent interest in
the implementation of federal Indian policy. For that reason,
when the Government seeks legal advice related to the
administration of tribal trust, . . . [it] seeks legal advice in a
‘personal’ rather than a fiduciary capacity.”
BE CAREFUL WHAT YOU WISH FOR
United States v. Navajo Nation, 537 U.S. 488 (2003).
Photo of Peobody mine protest: Waleah Jones
Photo of blast dust by Forgotten People
CONGRESS: ONLY A MORAL OBLIGATION
As just explained, the doctrine of trust responsibility
creates legally enforceable obligations for federal
agencies: they must perform the duties Congress has
assigned to them, and with the highest degree of care.
However, as to Congress, the trust doctrine creates only
a moral obligation. The trust doctrine is not legally
enforceable on Congress. Congress can destroy a trust
relationship (and even terminate an Indian tribe) or
enhance that relationship, at its discretion.
CONSULTATION
Consultation is a critical part of the Trust Responsibility.
Presidents Clinton and Obama issued Orders requiring federal
agencies to engage in meaningful consultation with Indian tribes.
President Obama's order requires all agencies that deal with Indian
tribes to develop consultation policies. Each agency should now
have a policy.
Clinton Executive Memorandum: 59 Fed. Reg. 22951 (1994)
Obama Executive Order No. 13175 (2009)
E.O. 13175 commits executive agencies to “regular and meaningful
consultation and collaboration with tribal officials” in matters affecting
Indian tribes.
CONSULTATION
The 1994 Clinton Executive Memorandum is entitled
“Government-to-Government Relationship with Native
American Tribal Governments.”
The Memorandum states that all agencies within the
executive branch shall operate “within a governmentto-government relationship with federally recognized
tribal governments [and] shall consult, to the greatest
extent practicable and to the extent permitted by law,
with tribal governments prior to taking actions that
affect federally recognized tribal governments.”
CONSULTATION
Consultation has two components: procedural and substantive.
Procedural:
1. Notify the tribe early and often about plans, possible actions.
2. Provide all critical information to the tribe on an on-going basis.
3. See if the tribe needs assistance, such as technical or legal.
4. Listen to what the tribe says and what the tribe wants.
5. Document the entire process and send written confirmations
periodically, inviting tribal feedback.
CONSULTATION (cont.)
Substantive:
1. Accept the tribe's recommendation unless there is a
compelling reason for rejecting it.
2. If the tribe's recommendation is not accepted, look
for a compromise, and if there isn’t one, explain why
the tribe’s recommendation was rejected and seek a
way to minimize any harm to the tribe.
CONSULTATION CASES
1. Quechan Tribe of the Fort Yuma Indian Reservation v.
United States Dept. of the Interior, 755 F. Supp. 2d 1104
(S.D. Cal. 2010).
“The required consultation must at least meet the
standards set forth in [the agency’s consultation policy]
and should begin early. The Tribe was entitled to be
provided with adequate information and time, consistent
with its status as a government that is entitled to be
consulted. The Tribe’s consulting rights should have
been respected. It is clear that did not happen here.”
CONSULTATION CASES
2. Klamath Tribes v. United States, 1996 WL 924509 (D.
Ore. 1996).
“The court grants the Tribes’ motion for a preliminary
injunction prohibiting the federal defendants from
proceeding with ‘salvage’ logging that will affect wildlife
resources within the Tribes’ former reservation, without
ensuring, in consultation with the Klamath Tribes on a
government-to-government basis, that the resources on
which the Tribes’ treaty rights depend will be protected.”
CONSULTATION CASES
3. Pueblo of Sandia v. United States, 50 F.3d 856 (10th
Cir. 1995).
The court found that the US Forest Service had withheld
relevant information during the consultation process,
making an informed decision difficult. The court therefore
reversed the agency’s decision and required additional
consultation.
4. Wilderness Society v. BLM, 526 Fed.Appx. 790 (9th
Cir. 2013): court finds that the BLM conducted a proper
consultation.