CHAPTER 3 FEDERAL MANAGEMENT OF TRIBAL LANDS AND RESOURCES
| Jurisdiction | United States |
(Nov 2014)
FEDERAL MANAGEMENT OF TRIBAL LANDS AND RESOURCES
Of Counsel
Quarles & Brady, LLP
Tucson, Arizona
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MARIAN C. LALONDE is a member of Quarles & Brady's Energy and Environmental Practice Group in Tucson, Arizona, with a particular focus in the mining industry. Her primary practice areas include real estate, public and tribal lands, natural resources, mining, environmental, energy, litigation, corporations, tax-exempt organizations, and equine law. Ms. LaLonde's experience includes complex real estate and business transactions and financings related to the development of mineral properties including title review and the preparation of mineral title reports, purchase and royalty agreements, land use, right-of-ways, municipal and tribal negotiations, and environmental permitting and compliance. She has also successfully litigated in the areas of mineral rights, water rights, title, general commercial real estate, construction and equine law. Ms. LaLonde received her J.D. from the University of Arizona James E. Rogers College of Law, and her bachelor of science degree in Agricultural Education from the University of Arizona. Ms. LaLonde actively participates in homeless youth and child advocacy efforts in the community and enjoys competing regionally and nationally with her three horses. Along with her horses, she enjoys life on a five-acre mini-ranch with her husband, six dogs, and a cat.
I. Introduction
Although it is relatively silent on the topic of Indians, the U.S. Constitution authorizes and empowers the federal government to engage in relations with Indian tribes. Native Americans have been held to have both inherent rights and rights guaranteed, either explicitly or implicitly, by treaties with the federal government, with the federal government retaining the ultimate power and authority to either abrogate or protect Native American rights. The place of Native Americans in the Constitutional structure of the United States is complicated. On the one hand, the Constitution gives the president's constitutional power to make treaties (Art. II, Sec. 2, CI. 2). On the other hand, the Commerce Clause of Constitution provides that "Congress shall have the Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Art. I, Sec. 8, Cl. 3). This clause has resulted in what is known as Congress' "plenary power" over Indian affairs, which has been interpreted to mean that Congress has the ultimate right to pass legislation governing Native Americans, even when that legislation conflicts with or abrogates Indian treaties.
The role of the Supreme Court in affecting Indian sovereignty is best understood in relation to the powers of Congress and the President. Under the Constitution, Congress has the power to regulate commerce with the Indian tribes. In addition, the Court has ruled that Congress, as the legislative body of the United States, has an intrinsic power to deal with the Indian nations who reside within the borders of the United States. Presidential power over the Indian tribes is centered on the ability to enter into treaties, a power that was used in the early years of federal laws related to Indian tribes to secure tribal acquiescence to the demands of the encroaching waves of settlers.
Over the years, the Supreme Court has had the difficult role of interpreting the actions of the President and Congress, to strike a balance between the rights of Indian nations and the interests of the European conquerors. Tribal sovereignty was, and continues to be, a primary issue for the Court. There are two competing theories of tribal sovereignty: first, the tribes have inherent powers of sovereignty that predate the "discovery" of America; and second, the tribes have only those attributes of sovereignty that Congress gives them.1
The concept of tribal sovereignty provides broad and general powers of government within tribal reservation areas, but regardless, those powers are still subject to limitations
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imposed by the federal government. All limitations on tribal sovereignty have centered on and will likely continue to center on federal oversight and control over tribal lands and relations.2
A general chronological summary of the zig-zag nature of federal oversight and policies began with the creation of the United States:
• 1777 to 1871: Federal relations with Indian tribes were centered on trading, wars, and treaty making. In 1831, the Supreme Court held that tribes are "domestic dependent nations" that had broad latitude to create their own laws within tribal areas. 3 In an 1832 decision, the Court ruled that only the federal government could regulate Indian affairs, not state governments. 4
• 1871 to 1887: Congress ended creation of Indian treaties in 1871, and adopted the policy of Indian assimilation under the Dawes or General Allotment Act in 1887. 5 The Act aimed to reduce tribal power by dividing tribal lands into individual parcels (allotments).
• 1887 to 1934: Indian lands were dramatically reduced from 138 million acres to 48 million acres. Under the Dawes Act, the Bureau of Indian Affairs ("BIA") was tasked with the responsibility of managing individual Indian allotments and the income generated from the use of these allotments. 6
• 1934 to 1953: The Lewis Meriam task force report issued in 1928 detailed the failure of the Dawes Act and federal Indian policies in general and it helped to usher in the "Indian New Deal" of the 1930s. The 1934 Indian Reorganization Act secured remaining Indian lands in trust status and encouraged the development of tribal governments and tribal constitutions. 7
• 1953 to 1968: Congress reversed course and once again tried to assimilate Indians in a heavy-handed manner. The government ended federal recognition of more than 100 tribes, reduced tribal land holdings, and relocated Indians to urban areas.
• 1968 to today: The Indian Civil Rights Act of 1968 8 reversed the federal policy direction again, and launched a new era of Indian "self-determination." In recent decades, federal policies have generally aimed at facilitating tribal sovereignty or self-rule. Today, the government still controls many aspects of reservation life, but tribes have more flexibility in pursuing economic opportunities.
II. Federal Control and Management
A. The Federal Trust Doctrine
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The federal government has a long-standing "trust responsibility" to Indian tribes known as the Federal Trust Doctrine which has been interpreted to mean that while Congress holds ultimate power over tribal governments, it is supposed to consider the best interests of the tribes when it makes decisions. Further, the BIA interprets this to mean that the trust responsibility is "a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources." 9
This "trust relationship" or "trust responsibility" between the federal government and the Indian tribes refers to the federal government's consistent promise, in the treaties that it signed, to protect the safety and well-being of tribal members in return for their willingness to give up their lands. This notion of a trust relationship between Native Americans and the federal government was developed by U.S. Supreme Court Justice John Marshall in the opinions that he wrote for three cases on tribal sovereignty. Those cases are Johnson v. McIntosh, Cherokee Nation v. Georgia and Worcester v. Georgia.10
In Johnson v. McIntosh, one of the seminal decisions of federal Indian law, the case involved claims to title to aboriginal lands purportedly conveyed to private individuals by the chiefs of two Indian Tribes in 1773 and 1775, prior to the American Revolution. The Court held that the purported transfer was ineffective as it as in violation of the federal government's right to preemption. This case led to the codification of the "Non-Intercourse Act," 25 U.S.C § 177, which limited tribal land transfers. The Court's decision clearly established that the federal government as the holder of "ultimate" title to Indian soil.
In Cherokee Nation v. Georgia, the Court specifically described the tribes as "domestic dependant nations" whose relation to the United States was like "that of a ward to his guardian." Similarly, in Worcester v. Georgia, the Court declared that the federal government had entered into a special relationship with the Cherokees through the treaties they had signed, a relationship involving certain moral obligations. "The Cherokees," Justice Marshall wrote, "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."11 The Supreme Court further held that tribes are:
• separate and distinct political communities;
• sovereign over the lands they retained;
• treaties were made in order to allow tribes to retain their culture, sovereignty, reserved homelands, and the right to govern themselves;
• tribes retain everything that they did not expressly give up; and
• In return for land cessations, tribes bargained for protection. 12
The United States gave Indian tribes a solemn pledge to protect them and what they retained from encroachment or diminishment. The Court used Cherokee Nation. v. Georgia dependency
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principles to demand recognition of the United States' responsibility to protect the tribes, their land, and whatever (sovereign) rights they had retained.
The federal government has often used this trust relationship to justify its actions on behalf of Native American tribes. Furthermore, the federal government has used the claim of a trust relationship to arguably stretch its protective duty toward these tribes. The United States is the legal...
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