The federal government has what is known as a “trust responsibility” to Indian tribes. This trust responsibility was first enunciated in 1831 by Chief Justice Marshall in Cherokee Nation v. Georgia when the court said that Indian tribes are domestic dependent nations, and that the relationship of tribes to the federal government is that of a ward to its guardian. (It has turned out to be an abusive guardian).
This doctrine further evolved in 1886 in U.S. v. Kagama, when the court said, “Indians are the wards of the nation… communities dependent on the United States for their daily food…” When Indians were placed on reservations, their means of subsistence was disrupted, and in many cases completely eliminated. The Plains Indians followed the buffalo, but when placed on reservations, they could no longer hunt for subsistence. This did indeed make Indians dependent on the federal government for food.
As a result of this history of dealing with tribes, the duty owed to tribes by the federal government is known as a fiduciary duty. This duty arises when the federal government has taken over control of tribal assets such as money, land, timber, etc. This is the highest level of responsibility that can be owed to another and means that the federal government must act within the best interests of the tribes. For example, if you invest money in a mutual fund, the manager of that mutual fund owes a duty to use the utmost care in managing the fund. In the case of tribes, if the federal government has control over tribal assets they are like the mutual fund manager, they must use the utmost care in managing the tribe’s assets. Does this always happen? No. As you will see from the external links, the BIA has grossly mismanaged tribal assets.
The federal government’s trust responsibility arises from statutes, treaties, agreements, executive orders and the government’s historical relations with tribes. This means that the federal government has a duty to protect federally-recognized tribes, but the federal government cannot be required to do a specific act unless a treaty, statute, agreement, executive order or course of dealing clearly imposes or implies the obligation. For example, courts have made the federal government litigate to protect tribal lands and resources since management of tribal land and resources is under the control of the BIA. There was also a case where the BIA was held liable for funds that were supposed to be paid to tribal members and were instead paid to a tribal government that BIA officials knew were misappropriating the funds. More recently, Indians have sued for money that appears to have been “lost” by the BIA. (Cobell v. Norton). The Cobell case has been working its way through the court system for a few years and is not yet over.
If the federal government has a trust responsibility, how can Congress pass laws terminating tribes?
As Canby pointed out, the trust responsibility is enforceable against executive agencies, such as the Dept. of Interior and the BIA, but the Supreme Court in Lone Wolf v. Hitchcock decided that congressional policy towards Indians is not a subject for the courts. Congress is restrained only by the U.S. Constitution, which in the case of Indians only discusses trade. This means that Congress can terminate the trust relationship anytime it wants to, but tribes cannot terminate this relationship.
There is another problem in carrying out the trust responsibility when litigation is involved. When there are legal disputes, the Dept. of Solicitor represents Indian interests until the case goes to court - then the Dept. of Justice takes over. The Dept. of Justice often handles conflicts on the other side - against Indians, so you have a single law firm, the Dept. of Justice, providing representation to Indians as both plaintiffs and defendants. Since the BIA owes a duty to tribes, and the Dept. of Justice must enforce this duty, this has sometimes created a situation where one federal agency is suing another. This results in the federal government, in effect, suing itself.
A recent example of the conflict of interest that exists in the Dept. of Justice arose in the state of Washington. The governor refused to negotiate gaming compacts with Washington tribes. A few tribes were offering gaming without state compacts, in violation of federal law, so the U.S. attorney filed suit in federal court to seize the tribes’ slot machines and close the casinos. The court decided that the U.S. attorney should be acting in the best interests of the tribe and suing the state for refusing to negotiate a compact, rather than taking action against the tribe for operating illegal gambling devices.
To take care of these conflicts, former President Nixon wanted to establish a separate legal agency for handling representation of Indian interests. It seems like a good idea, but to date, this hasn't happened.