WILKINS AND LOMAWAIMA 2002 (David E. Wilkins, a member of the Lumbee Tribe, is associate professor of American Indian studies, political science, and law at the University of Minnesota and coauthor, with Vine Deloria, Jr., of Tribes, Treaties, and Constitutional Tribulations. K. Tsianina Lomawaima is an associate professor of American Indian Studies at the University of Arizona and the daughter of a former Chilocco student., Uneven Ground: American Indian Sovereignty and Federal Law, p. 69-72)
We turn our attention first to the recent phenomenon of growing resentment from what we term, for lack of a better phrase, the "anti-trust" segment. An anti-trust interpretation denies that the trust doctrine carries any legally enforceable federal obligation to "best manage" Indian affairs. In this view, the federal government simply wields ultimate power over Indian affairs, managing however it sees fit, and often to the detriment of tribal interests. These commentators have argued that the trust doctrine had, and still has, more use as a rhetorical than a legal principle. In other words, the notion of trust has been used to "give moral color to depredations of [i.e., visited upon] tribes [by others]" (Ball 1987, 62). Federal authority, in this view, is more appropriately understood as "an assertion of unrestrained political power over Indians, power that may be exercised without Indian consent and without substantial legal restraint" (Coulter and Tullberg 1984,203). Trust, then, carries no responsibility for acting in tribal best interests or for considering tribal opinions at all. Trust is a "metaphor for federal control of Indian affairs without signifying any enforceable rights of the tribal 'beneficiaries' " (Krauss 1983, 447). This perspective further suggests that the "beneficial management" interpretation of the trust doctrine is an "illusion unsupported by legal authority"; that in reality Congress has become "the source of largely unrestrained federal power to regulate all aspects of tribal existence—from the management and disposal of Indian land and resources, to the imposition of federal criminal jurisdiction over tribal members, even the dissolution of tribal government" (Shattuck and Norgren 1991, 116). In sum, "the trust doctrine has proved to be a pliable instrument of nearly unlimited federal control and neglect" (ibid., 118).
An example of this "nonbeneficial" theory of trust (and concomitantly unconstrained theory of federal powers) is found in United States v. Sioux Nation (448 U.S. 371 [1980)). The U.S. attorney made the startling oral argument that the trustee relationship "carries both obligations but also unusual powers, the power to dispose [of Indian land] against the will [of the Indian tribe] and without exercising the power of eminent domain" (United States 1980, 46; emphasis added). In response, a justice acerbically asked: "The Constitution itself recognizes Indian tribes as sovereigns, does it not?" Legal counsel responded, remarkably, by asserting: "Yes, but the Constitution perhaps also recognizes the dependent status of Indian tribes, their inability to alienate their land which accordingly, if it must be done in their interest, may occasionally have to be done against their will by their guardian" (ibid.; emphasis added). Counsel's hedge against reality is encapsulated in the word "perhaps": in fact the Constitution says nothing about tribes as dependents or about tribes' abilities, or inabilities, to alienate land.
The nonbeneficial theory of trust not only flies in the face of tribal "will," but also attempts to rewrite the Constitution.
Another example of an "anti-trust" interpretation that brooks no constraints whatsoever on the exercise of federal powers over Indian affairs is found in the 1988 Lyng case mentioned earlier. The Supreme Court held that the United States Forest Service had the right to construct a 6-mile road segment that would admittedly "destroy the ... Indians' ability to practice their religion." In this case involving the construction of a logging road through areas sacred to three small northern California tribes, Justice Sandra Day O'Connor wrote (in the majority opinion) that Indian religious rights could not be allowed to "divest the Government of its right to use what is, after all, its land" (485 U.S. 439,453 ; emphasis in the original). In O'Connor's opinion, federal powers over federal lands could not and should not be restrained by any tribal concerns, even religious freedom.
In contrast to the "anti-trust" commentators are those who could be labeled "pro-trust/' who forcefully argue that the trust responsibility does create "legally enforceable duties for federal officials in their dealings with Indians" (Chambers 1975, 1215). A legally enforceable notion of the trust doctrine "has great significance in that it provides a check (albeit sometimes minimal) on federal and state actions which may endanger Indian rights" (Hall 1981, iv). The trust doctrine, according to the "pro-trust" interpretation, has been articulated and added to over time in several distinctive ways: (1) in ratified treaties and agreements with tribes; (2) in the international law doctrine of trusteeship (first broached in papal bulls and related documents when European states encountered non-Western societies and assumed a protective and insulating role over these peoples and their territories); (3) in general congressional policies and specific acts applicable to all Indian tribes (such as the 1819 Civilization Act and the 1921 Snyder Act); (4) in presidential policy pronouncements, such as executive orders, and finally; (5) in federal court judicial opinions describing the federal government's fiduciary responsibility to tribal peoples.
The trust doctrine, in this view, "emanates from the unique relationship between the United States and Indians in which the Federal Government undertook the obligation to insure the survival of Indians----Its broad purpose ... is to protect and enhance the people, the property, and the self-government of Indian tribes" (U.S. Congress 1977,126). Here the federal trust duty is best characterized as a trustee-beneficiary relationship and not as a guardian-ward relationship (ibid., 127). Charles F. Wilkinson, a major proponent of this interpretation of trust, asserts that "although comparatively little has been done to explicate the enforceable duties of the trustee, the trust relationship has played a pervasive role in serving as the philosophical basis for a number of important doctrinal advances— Thus, in addition to the accountability of federal officials for trust violations, the trust has a diverse and continuing influence in the development of Indian law" (Wilkinson 1987, 85-86).
The "pro-trust" perspective does not deny that the federal government may wield extraordinarily broad power over tribal lands, resources, and rights. It does, however, adhere to a political and moral image of the United States exemplified by the 1787 Northwest Ordinance, where the federal government pledged that "the utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them" (1 St. 50,52).