Lecture 204 : The United States Government and Indian Trust Relationship



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Lecture 204 : The United States Government and Indian Trust Relationship
Introduction
The idea that the United States has a trust responsibility to its Indian residents has long been a
fundamental principle of Indian law, but the exact nature of that relationship has never been precisely,
defined. The concept of an Indian trust relationship is based on precedents in national, international,
colonial, and "moral" law, as well as historical events and philosophical assumptions. The federal
government has taken responsibility for the tangible property, resources, and assets of Indians as a
trustee would manage the property of a bene­ficiary in private law. But federal trust responsibilities
toward Indians also extend beyond the property-related definition of a private trusteeship. The
government's duties have often been interpreted to include functions analogous to those of a guardian
in private law, and the Indian's position has thus been seen as similar to that of a private ward. Federal
responsibility has also been construed to include such duties as the protection of tribal sovereignty,
the enforcement of treaty rights, and the provision of a variety of social and economic services to
Indians.

The general definition of the trust relationship has been variously interpreted and applied


throughout the country's history. The trust relationship has been invoked to justify both the protection
and the reduction of Indian resources. It has been cited as the basis of the government's obligation to
defend tribal rights, but it has also been seen as mandate for federal intervention in internal tribal affairs.
The absence of a consistent, explicit body of law to govern this special trust relationship has allowed
varied and often contradictory interpreta­tions of federal responsibility and the trust status of Indians.
There are no established standards by which the implementation of federal trust duties might be
measured. Neither the "United States" as trustee nor the Indians as beneficiaries can be precisely
identified. Thus one federal agency may support projects detrimental to Indian interests, while another
bears the burden of defending Indian trust responsibilities. Although breaches of trust have clearly
occurred, neither a legal definition of such a breach of trust nor a range of legal recourse comparable
to that available to private trust beneficiaries exists. Lacking such consistent guidelines, the
interpretations of the trust relationship have tended to follow the shifting directions of federal Indian
policy and the underlying assumptions about the nature of the Indian. This lecture traces the
development of the trust relationship in the United States, but it can offer only a brief and simplified
introduction to so complex a question.

Lecture 43: The United States Government and Indian Trust Relationship

I. The federal government's unique trust responsibilities to the Indians of the United States


are universally acknowledged, but variously defined. At its most limited, the trust relationship
is equated with trusteeship as defined in private law; a broader definition includes
responsibilities related not only to Indian property and assets, but to tribes and individuals as
well.

A. Trusteeship is defined in private law as "a fiduciary relationship in which one person


is the holder of the title to property, subject to an equitable obligation to keep or use
the property for the benefit of another" (Adams et al., p.190). Federal trusteeship over
Indian lands, resources (such as water rights, minerals, and timber), and funds clearly
falls within this definition.

1. By treaty, statute, and agreement, upheld by judicial decisions, the U.S.


government created and accepted a trust responsibility for Indian lands and
the resources on them.

2. Many treaties, agreements, and laws also established federal

trusteeship over Indian monies.

a. The first explicitly created Indian trust fund was set aside in a 1797


treaty which established a fund to be administered by the government
for the use and benefit of the Seneca (Adams et al., p. 57).

b. The payments for Indian land specified in many treaties were to be


held in trust; the government was given the responsibility of managing
and disbursing these funds. By 1850 the government held more than
five million dollars in Indian trust funds (Adams et al., p. 57).
B. According to many interpretations, the federal trust responsibility to Indians extends
beyond the limited concept of property-related trust drawn from private law to include responsibility for protection of tribal sovereignty and the extension of services to tribes
and individuals.

1. By accepting jurisdiction over Indian nations, the government acquired the

responsibility for preserving Indian sovereignty.


  1. The law of nations, as Emmerich Vattel expressed it, held that a nation

did not relinquish its sovereignty by entering into a dependent
relationship with another: "Consequently a weak state, which in order to
provide for its safety, places itself under the protection of a more powerful
one, and engages, in return, to perform several offices equivalent to that protection, without however divesting itself of the right of government
and sovereignty,--that state, I say, does not, on this account, cease to rank among the sovereigns who acknowledge no other law than that of nations" (Vattel in Adams et al., p. 104).

b. The United States, having recognized tribal sovereignty through the


Constitution, treaties, laws, and judicial decisions, therefore has a trust responsibility to maintain and "protect this sovereignty... so there is no
further erosion ... and to support tribes in their efforts to enhance tribal sovereignty" (National Tribal Chairmen's Association in Adams et al.,
p. 47).

2. The federal Indian trust responsibility, unlike private trusteeships, includes "all


fiduciary relationships relating to person"as well as to property; its closest
analogue in private law is the relationship between guardian and ward
(Alpheus H. Snow in Adams et al., p. 54).

a. This broader definition of the trusteeship obligates the government to


provide "for the education, health, and material well-being of native dependencies" (Adams et aI., p. 55).

b. Such a definition of trust responsibility toward Indian tribes and


individuals is based on several precedents.

(1) Congressional, judicial, and executive action has frequently


supported the concept of a trust relation­ship equivalent to
"wardship."

(a) Such a relationship has been used to protect Indian


rights and property.

(b) It has also been used to extend federal jurisdiction over


internal tribal affairs, such as the prohibition of alcohol
on Indian lands, the assumption of responsi­bility for
Indian education, and the provision of health services.

(2) Because direct federal actions and the acts of American citizens


in many cases so impaired Indian economies, governments, and
societies that those institutions were no longer able to function independently, the government has a trust obligation to provide compensatory assistance to restore and protect those institutions.

II. The Trust Relationship in Colonial America

A. National and international law, as well as European assumptions about the nature of the


Indian, provided the theoretical under­pinnings for a trust relationship.

1. In the l520s Francisco de Vitoria refuted arguments which held that Indians


were naturally enslaved, brutish, or of unsound mind and could therefore be denied human rights; he upheld the Indians' rights of possession to their lands
and resources, but added, as Washburn paraphrases, that Indians "might need to be governed by others in the manner of children in a state of tutelage while still retaining, however, dominion over their own property" (Washburn, pp. 9-10).

2. Emmerich Vattel's Law of Nations (1760) summarized international law and its
application to Indian nations; that document has since been used to support
varied interpretations of the Indian trust relationship (Adams et al., pp. 100-6).

B. In their dealings with the Indians of North America, the various colonial powers also


established practical precedents for a trust relationship.

1. The Spanish encomienda system, established in the early sixteenth century and
approved by the Law of Burgos in l5l2, is often seen as the source of a trust relationship which places both the Indians and their lands under the
guardianship of a non-Indian government (Adams et al., p. 89).

2. In 1631 the colonial representatives of the Dutch government established a
specific trust relationship with ten Indians (Adams et al., p. 96).

3. Throughout the colonial period, the European governments claimed exclusive
rights of "discovery," which accorded the sole rights to negotiate with a given tribe and purchase its lands to a single European nation. This practice offers justification for the trust relationship because it arbitrarily limited the sovereign rights of Indian nations to deal with other European powers.

III. The Trust Relationship in the Early National Period


A. The legal foundations of the trust relationship were established by legislation and


judicial decision in the new republic.

1. One court has ruled that the federal trust relationship began with the
promulgation of the first Indian trade and intercourse act in 1790 (Adams
et al., p. 21).

2. Another court held that the assertion of federal jurisdiction over Indian affairs


embodied in the Constitution was the basis for federal trust responsibility
(Adams et al., p. 22).

3. Two Supreme Court rulings presented by Chief Justice Marshall in the 1830s


had important implications for the developing concept of Indian trust relations.

a. In Cherokee Nation v. the State of Georgia (1831), Marshall stated that


Indian nations had the legal status of “domestic dependent nations" (Adams et al., p. 109).

(1) Comparing the Indians' relation to the government to "that of a


ward to his guardian," Marshall described the condition of the tribes as "a state of pupilage."

(2) Such a relationship among nations, he pointed out, was unique.

b. In Worcester v. the State of Georgia (1832), Marshall established the
existence of Indian rights and the obligation of the government in interpreting treaties.

(1) In the history of Indian relations with Europeans, he noted,


Indians had professed "dependence" in exchange for various services "so long as their actual independence was untouched,
and their right to self-government acknowledged " No European power had interfered with tribal government or internal tribal affairs.

(2) He ruled that Indians retained all of their "original natural rights," including the right of possession to their lands.

(3) He also ruled that if ambiguity arose in the interpreta­tion of an Indian treaty, the government had the obligation to interpret the point in the manner most beneficial to the Indians.
B. The practical foundations of the trust relationship also developed in this period.

1. Although few Indian lands were specifically designated as trust property through the 1850s, it may be argued that all Indian lands within United States jurisdiction came under implicit trust as a result of the relationship established by the Cons­titution, the trade and intercourse acts, and the actions of the federal government.

2. Treaties negotiated after 1819 generally specified that the funds owed to the tribes for land cessions would be held in trust by the government (Adams et al., pp. 57-59, 82).
a. The government was to invest the funds and provide either direct
interest payments or benefits and services equivalent to that interest.

b. The administration of these funds raised serious questions about the


way in which the federal trusteeship was conducted.

(1) Indian funds were used to provide loans for states and

railroad companies.

(2) In some cases interest payments were defaulted and funds

were embezzled.

(3) The goods and services provided in lieu of cash payments


often had less actual value than the interest owed to the tribes.

(4) The Indian monies were frequently applied to the costs of the Indian service in questionable ways.

3. In 1821 the secretary of war included education in a list of the federal responsibilities that "grow naturally out of our relationship" to and
"guardianship" over the Indians (Adams et al., p. 55).
IV. The Trust Relationship in the Late Nineteenth and Early Twentieth Centuries
A. The trust relationship was increasingly interpreted as an interim wardship designed
to bring the Indians rapidly to a state of "civilization" (Adams et al., pp. 22-23,58-59,
83).

1. Guardianship was used as a justification for federal attempts to intervene in internal tribal affairs by banning the practice of traditional Indian religions and customs and by enforcing those prohibitions within reservation communities.

2. The abolition of treaty-making in 1871 was in part an attempt to erode the sovereign powers of Indian nations and governments while increasing the
powers of Congress.

3. This interpretation of trust duties also affected the administra­tion of Indian


funds.

a. After 1875 Indians were required to perform labor on the reservations


to "earn" the annuities and rations guaranteed to them by treaty.

b. Indian children attending schools supported in large part by Indian trust


funds were required to do much of the maintenance and labor in those schools.


B. The allotment policy was intended to eliminate federal trust responsibilities.

1. The Dawes Act (1887) established a twenty-five year trust period for all Indian
lands allotted in severalty, at the end of which Indians would receive fee patents for their lands and American citizenship.

2. Through the Burke Act (1906), trust responsibility was linked to Indian
"incompetence."

a. The act allowed Indian allottees who were judged "competent" to
receive fee patents before the expiration of the general trust period.

b. No standards were established for determining such "competence,"
however, and fee patents were issued in bulk. Between 1906 and 1921,
nearly thirty thousand Indians were declared "competent" and their
lands were released from trust status.

C. The passage of the Indian Citizenship Act (1924) complicated the question of Indian


trust status, since citizenship had been proposed as a basis for terminating special
services to Indians.

V. The Trust Relationship and Indian Reform, 1920-1950


A. The failures of allotment policy were assessed in the 1920s and 1930s; the


investigations included a reexamination of the Indian trust relationship and the responsibilities of the federal govern­ment.
1. In 1919 a study prepared for the State Department reviewed the status of aboriginal peoples in national and international law (Adams et al., pp. 55-56).
a. In the study, Alpheus Snow concluded that trusteeships over aboriginal
nations should be broadly defined, to include "all the relationships of a
fiduciary character in which a person assumes a relationship of responsibility for or to another"
b. Legal precedent for "holding sovereignty in trust" also existed.
c. Such a trust relationship could not be legally used to lessen the status of the dependent community: "The trusteeship is for conservation and elevation of status. A conservator or guardian can find in the private law no warrant for altering for the worse the social status of the incompetent person or ward. His duty is to alter it, if possible, for the better."

2. The Meriam Report criticized a number of federal abuses which were, in effect, breaches of' trust responsibility.


a. Mandatory labor in the schools was not only a violation of child labor laws; it was a system through which the Indians were "paying and double- paying their own way" (Adams et al., pp. 58-59).

b. The vast reduction in Indian lands which resulted from the allotment policy, and in particular from the issuance of "competency" declarations and fee patents in bulk, had done enormous damage to the tribes.


B. The policies of the “Indian New Deal" attempted to halt and correct the abuses of trust responsibility which had culminated in allotment policy: during the 1930s and 1940s,
the government extended protection to tribal lands and sovereignty and developed

social and economic programs



­

C. In 1942 the Supreme Court ruled, in Seminole v. United States, that the federal government had "charged itself with moral obligations of the highest responsibility


and trust" and that its duty derived "from the status of Indians as a 'dependent and sometimes exploited people’" (Chambers p. 2).
D. The creation of the Indian Claims Commission in 1946 offered the Indians a partial remedy for abuses which resulted from the federal government's failure to uphold its duties and responsibilities as a trustee (Adams et a1., p. 182).
E. With the passage of House Concurrent Resolution 108, Public Law 280, and the
specific bills enacting termination, Congress attempted to end the federal trust responsibility unilaterally.
VI. The Trust Relationship: Current Policy and Assessments
A. The Self-Determination Act reaffirmed the United States' "commit­ment to the maintenance of the Federal Government's unique and continuing relationship with
and responsibility to the Indian people..." (Public Law 93-638, section 3, 88 Stat. 2203,
in Law and the American Indian, #47).
B. Current interpretations and definitions of the trust relationship are varied and often confused. Various organizations have made recommendations to clarify that
relationship.

1. In 1974 the National Tribal Chairmen's Association proposed a threefold definition of federal trust responsibilities (Adams et al., p. 47).

a. The government, under this definition, is required to uphold, protect,
and support tribal sovereignty.

b. The government is responsible for the protection and management of Indian lands, resources, funds, and property, but in undertaking that responsibility it should encourage Indian participation.

c. The government also has a "trust responsibility for providing the means
by which tribes can provide community services to the members of the reservation communities."

2. The American Indian Policy Review Commission defined the trust responsibility as "an established legal obligation which requires the United States to protect


and enhance Indian trust resources and tribal self-government and to provide economic and social programs necessary to raise the standard of living and
social well-being of the Indian people to a level comparable to the non-Indian society." It also asserted that the government's failure to fulfill its trust responsibilities in the past "is not seen by Indians as lessening the continuing responsibility" of the United States (AIPRC in Basinger, pp. 6-7).

3. The Institute for the Development of Indian Law, in its 1978 report to the National Congress of American Indians, defined the trust responsibility as


"the unique legal and moral duty of the United States to assist Indians in the protection of their property and rights" (Basinger, p. 8).

a. The report established the "underlying purpose" of federal trusteeship


as "the continued survival of Indian tribes as self-governing peoples" (Basinger, p. 7).

b. It recommended that no change be made in Indian trust status without


the consent of the Indians to be affected by the alteration (Basinger,
p. 12).
C. An extensive review of Indian trust status was presented in 1976 as the report of a task force on trust responsibilities chaired by Hank Adams.

1. The report outlined the major problems in trust law and the implementation of


the Indian trust relationship.

a. The "United States" as trustee has not been clearly defined (Adams et


al., p. 175-76).

(1) At times the "United States" as a party in the trust relationship


has been narrowly equated with the secretary of the interior or
the Bureau of Indian Affairs. Such a definition excludes other parties to the trust relationship, including Congress, the courts, state governments, individual American citizens, and other agencies.

(2) This narrow definition, by making a single agency solely responsible for upholding the trust responsibilities of the.


United States, has "resulted in what would normally be viewed
as breaches of trust by the favoring of one of Interior's bureaus
to the detriment of Indian positions" (Adams et al., p. 175).

b. The eligibility of the various Indian beneficiaries also needs to be more clearly defined (Adams et al., p. 176-77).

(1) The eligibility of tribal beneficiaries is well established.

(a) Termination, although unilateral and involuntary, "does extinguish the trust relationship." "Treaty tribal rights," however, "may survive 'termination'" (Adams et al.,


pp. 11,116).

(b) Tribes which have not been terminated and tribes whose status has been restored after termination "are


beneficiaries under the trust relationship" (Adams et al.,
p. 176).

(2) The status of individuals within the trust relationship has been


less clearly defined than that of tribes.

(a) It has been established "that members of tribal


beneficiaries are themselves beneficiaries of the trust.
Their rights ... are determined largely by their
relationship to elements of the trust and trustee" (Adams
et al., p. 177).

(b) This report concluded that "strong authority exists that a trust responsibility extends to Indian persons in migration or mobility away from their reservations and remaining members of their Tribes" (Adams et al., p. 30).

c. The administration of trust responsibilities should be examined (Adams
et al., pp. 177-81).

(1) A major part of the trust is tangible trust property, such as land,


resources, and income.

(a) Practices such as forced allotment, land sales, and reservation reduction were "undoubtedly breaches of


trust" (Adams et al., p. 178).

(b) In the future, the United States should observe "the


duties and standards of conduct" applicable to those who administer private trusts, and the principles which apply



to Indian trust law should be clearly enumerated (Adams
et al., pp. 178-79).

(c) To compensate for past breaches of trust," the government "should require an intense program for the encouragement of the use of trust monies for the purchase of additional trust lands that are compatible with the development plans of the tribe" (Adams et aI., p. 178).

(d) The trustee should provide technical expertise "from a source trusted by the beneficiary or recommended by him" to assist in the development and management of tribal resources (Adams et al., p. 179).

(2) The obligation to protect tribal sovereignty and treaty rights must be acknowledged.

(a) The trust relationship should not be construed as one
which the trustee may eventually abandon, since "Indian tribes, as recognized political bodies with most elements
of a sovereign, have a right to exist forever if they so desire" (Adams et al., p. 178).

(b) The trust relationship should not be interpreted as permission for the federal government to infringe on Indian rights to self-government or internal' tribal affairs (Adams et al., p. 2).

(c) The trustee has a duty to protect and strengthen "tribal governments at as high a level of sovereignty as is
possible under the circumstances" (Adams et al., p. 180).

(d) The "sanctity" of treaty rights "guaranteed in exchange
for the cession of other rights and property" should be given "vigorous protection" (Adams et al., p. 178).

(e) No treaties should be altered without the approval of

the tribes involved (Adams et al., p. 2).



(3) In addition to the responsibilities outlined by "general trust principles," the United States also has "duties arising from the- dependency of Indians that include at least the Federal duties
... to provide certain services" (Adams et al., p. 179).

(a) A number of precedents justify this interpretation

of a trust responsibility (Adams et al., p. 3).

i) Approximately half of the presidents of the
United States have accepted a "broad trusteeship" over Indian tribes.

ii) The establishment of trusteeship was based on the fact that "in appropriating to ourselves their territories we have brought upon ourselves the obligation of providing them with subsistence."

iii) Treaties were negotiated in accordance with the "principle of law" that tribes should not be left "without the resources for their livelihoods and
for their economic, institutional, and community needs." As a result, the federal government
"became duty bound, upon its own declared premises, to satisfy that capacity with an equivalency of present and future resources and aid."

(b) Such aid might include education, health, housing, and economic assistance programs, as well as the advice of technical experts in the management of tribal resources.

(4) A suitable legal remedy for federal breach of trust should be provided.

(a) Neither the Court of Claims nor the Indian Claims Commission has offered Indians the full range of


"normally available judicial remedies under trust law" (Adams et al., p. 184).

(b) The absence of legal redress for such breach of trust

"tends to foster further breaches" (Adams et al., p. 182).

2. To eliminate the conflicts of interest that have plagued the administration of the trust relationship, the report recommended replacing the Bureau of Indian


Affairs with an independent department.

a. The proposed department would be under the joint control of an Indian board and a cabinet-level secretary.

b. The department would have separate divisions to handle specific areas such as education, community services, budget, health, economic assistance, and housing and credit.

c. An extensive natural resources management and development


department within the larger organization would be established to
correct past failures in this area of trust responsibility.

d. A separate office would be responsible for providing independent counsel, representing Indian interests in litigation, and handling other legal responsibilities of trust and treaty administration.
Bibliography

Adams, Hank, et al. Report on Trust Responsibilities and the Federal­Indian Relationship;


Including Treaty Review.
Task Force One, Final Report to the American Indian Policy Review Commission. Washington, D.C.: Government Printing Office, 1976.

Basinger, Douglas, ed. "A Report to the National Congress of American Indians on Congress and Pending Legislation." September 13, 1978. Ms., Institute for the Development of Indian Law.


Chambers, Reed Peyton. "Discharge of the Federal Trust Responsibility to Enforce Legal Claims of Indian Tribes: Case Studies of Bureaucratic Conflict of Interest." In Law and the American Indian: Course Materials, Readings and Cases, compiled by Larry J. Echohawk and Russell C. Kearl. Second edition. Salt Lake City Valley Fair Printing, n.d.


Taylor, Theodore W. The States and Their Indian Citizens. Washington, D.C.: Department of the Interior, Bureau of Indian Affairs, 1972.


Washburn, Wilcomb E. Red Man's Land-White Man's Law: A Study of the Past and Present Status of the American Indian. New York: Charles Scribner's Sons, 1971.





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