COMPATIBILITY OF THE FEDERAL TRUST RESPONSIBILITY WITH SELF-DETERMINATION OF INDIAN TRIBES: REFLECTIONS ON DEVELOPMENT OF THE FEDERAL TRUST RESPONSIBILITY IN THE TWENTY-FIRST CENTURY

• Jurisdiction: United States

Natural Resources Development in Indian Country
(Nov 2005)
CHAPTER 13A
COMPATIBILITY OF THE FEDERAL TRUST RESPONSIBILITY WITH SELF-DETERMINATION OF INDIAN TRIBES: REFLECTIONS ON DEVELOPMENT OF THE FEDERAL TRUST RESPONSIBILITY IN THE TWENTY-FIRST CENTURY
Reid Peyton Chambers ^*
Sonosky, Chambers, Sachse Endreson & Perry
Washington, D.C.

Reid Peyton Chambers is a Partner with Sonosky, Chambers, Sachse, Endreson & Perry, LLP, in Washington, D.C. Since joining the firm in 1976, Mr. Chambers has represented tribes or other Alaska Native interests in litigation involving land, timber and water rights, hunting and fishing rights, reservation disestablishment, Alaska tribal rights and immunities, gaming law, tribal jurisdiction and taxation, oil and gas rights, and coal development.

He served as Associate Solicitor for Indian Affairs of the U.S. Department of the Interior, the Department's chief legal officer with responsibility over Indian and Alaska Native matters (1973-76). Mr. Chambers has codified tribal laws, advised Native American corporations on government procurement, and engaged in legislative advocacy on behalf of a variety of tribal interests. In 2003 Mr. Chambers represented the Bishop Paiute Tribe before the U.S. Supreme Court in Inyo County v. Paiute-Shoshone Indians of the Bishop Community, _ U.S. _, 123 S. Ct. 1887 (2003).

For over twenty years Mr. Chambers has taught a seminar on federal Indian law at Georgetown Law School. He has also taught the seminar several times at Yale Law School. In 1988, he served as the Chapman Distinguished Visiting Professor at Tulsa University Law School. He taught law for three years as a professor at the University of California at Los Angeles (UCLA), worked extensively with the Native American Rights Fund, and for three years practiced privately in Washington, D.C. at Arnold & Porter.

He received his undergraduate degree from Amherst College in 1962 and his law degree from Harvard Law School in 1967, where he was a member of the Board of Editors of the Harvard Law Review. He also holds a graduate degree in Economics from Balliol College, Oxford.

Bar and court admissions: District of Columbia, 1968; Supreme Court of the United States; U.S. Courts of Appeals for the D.C. Circuit; Second Circuit; Eighth Circuit; Ninth Circuit; Tenth Circuit; Fort Peck Tribal Court.

Speeches and publications: Co-author of the 1982 revised edition of Felix S. Cohen's A Handbook of Federal Indian Law; "Indian Law in the United States Supreme Court -- Experiences in the 1980s and Predictions for the 1990s," 22 American Indian L. Rev. 601 (1998); "Indian Water Rights After the Wyoming Decision," 1989 Harvard Indian Law Symposium 153; "Oklahoma Indian Law -- Cases of the Last Decade and Opportunities for the Next Decade," 24 Tulsa L.J. 701 (1989); "American Indian Water Law Symposium," 15 Tulsa L.J. 699 (1980); "Judicial Enforcement of the Federal Trust Responsibility to Indians," 27 Stanford L. Rev. 1213 (1975); "Regulatory Sovereignty: Secretarial Discretion and the Leasing of Indian Lands" (with Monre E. Price), 26 Stanford L. Rev. 1061(1974); "A Study of Administrative Conflicts of Interest in the Protection of Indian Natural Resources," prepared for the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary of the United States Senate (1971).

TABLE OF CONTENTS

I. Tribal Self-Determination Policy

II. The Federal Trust Responsibility to Indians

A. Origins in Cherokee cases as a doctrine protecting tribes as distinct political societies

B. The Trust Responsibility as a source of federal power

C. Modern cases applying the trust responsibility

III. Consistency of tribal self-determination and the federal trust responsibility to tribes

A. Supreme Court's Navajo Nation decision

B. The trust responsibility as impeding tribal economic development

C. Congressional retractions of trust obligations

D. An assessment of the consistency of the trust responsibility with the self-determination policy

IV. Concluding preliminary thoughts on directions for the trust responsibility in the 21%gst%g century

I. Tribal Self-Determination policy.

Modern federal Indian policy enunciated by both federal political branches -- Congress and the Executive -- since the late 1960s has promoted the "self-determination" of Indian tribes and communities, through strengthened tribal governments and increased economic self-sufficiency. This policy of strengthening tribal governments, together with promoting Indian economic development, actually commenced during the New Deal with enactment of the Indian Reorganization Act of 1934, ¹ which was drafted and strongly supported by the Roosevelt Administration. ² This Act enabled tribes to reorganize their governments and began to free those governments from decades of intensive federal paternalism during which Indian people and reservation lands had been governed -- essentially as colonies -- by federal bureaucrats Indians did not elect or appoint, and who were accountable to superiors in the Executive Branch and ultimately Congress, not to the Indians. For example, in the debate when the Senate considered the Indian Reorganization Act of 1934, the bill's sponsor, Senator Wheeler, stated that "the Indian agent located upon an Indian reservation, was a czar." ³

Even as late as 1968, the Harvard Law Review reported that:

Although the normal expectation in American society is that a private individual or group may do anything unless it is specifically prohibited by the government, it might be said that the normal expectation on the reservation is that the Indians may not do anything unless it is specifically permitted by the government. ⁴

This condition persisted as late as the 1960s because -- during the decade or so immediately after the Second World War -- federal Indian policy retrogressed, moving away from supporting tribal self-government and toward reimposing bureaucratic paternalism, with the ultimate goal of "terminating" the federal trust relationship with tribes, abolishing reservations and subjecting Indians to the control of state laws. ⁵ Where it was implemented for particular tribes and reservations, this termination program created disastrous poverty and dislocation for Indian communities. ⁶ Many terminated tribes have since been "restored" to federal recognition by Congress in the past four decades ⁷ after both Presidents Johnson and Nixon and Congress returned to the wiser policies set by President Roosevelt and the New Deal Congress.

The centerpiece of the new policy was President Nixon's Message to Congress on Indian Affairs in 1970, ⁸ espousing an Indian policy favoring tribal self-determination and rejecting termination. Two years earlier, in his Message to Congress on "Goals and Programs for the American Indian" on March 6, 1968, President Johnson had similarly "proposed a new goal for our Indian programs: A goal that ends the old debate about 'termination' of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership self-help." ⁹ President Nixon's comprehensive and thoughtful Message expressly rejected both the policy of "forced termination" and the contrasting system of "excessive dependence on the Federal government" where "the Indian community is almost entirely run by outsiders who are responsible and responsive to Federal officials" rather than tribal communities. In announcing the policy of "self-determination without termination," President Nixon stated that "the time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions."

In rejecting termination, President Nixon also recognized the federal trust responsibility to Indians as a legal obligation of the federal government:

Termination implies that the Federal government has taken on a trusteeship responsibility for Indian communities as an act of generosity toward a disadvantaged people and that it can therefore discontinue this responsibility on a unilateral basis whenever it sees fit. But the unique status of Indian tribes does not rest on any premise such as this. The special relationship between Indians and the Federal government is the result of solemn obligations which have been entered into by the United States Government. Down through the years, through written treaties and through formal and informal agreements, our government has made specific commitments to the Indian people. For their part, the Indians have often surrendered claims to vast tracts of land and have accepted life on government reservations.

* * * *

The special relationship between the Indian tribes and the Federal government which arises from these agreements continues to carry immense moral and legal force. To terminate this relationship would be no more appropriate than to terminate the citizenship rights of any other American. ¹⁰

President Nixon included in his Message specific proposals to Congress requiring federal agencies to transfer administrative responsibility for federal services and programs to tribes at the tribes' options and spurring Indian economic development by providing federal loan guarantees, loan insurance and interest subsidies. These proposals were enacted by Congress in 1975 as the Indian Self-Determination and Educational Assistance Act, ¹¹ and Indian Financing Act. ¹²

Subsequent Administrations and Congresses have furthered and expanded the tribal self-determination policies of Presidents Johnson and Nixon in a bipartisan fashion. For example, President Reagan's Message to Congress on January 24, 1983 ¹³ continued the commitment of the Nation to strong government to government relations with tribes and to support of tribal self-government and economic self-sufficiency. President Clinton's Executive Order 13175 ¹⁴ recognized "the right of Indian tribes...