THE FEDERAL TRUST RESPONSIBILITY IN A SELF-DETERMINATION ERA
| Jurisdiction | United States |
(May 1999)
THE FEDERAL TRUST RESPONSIBILITY IN A SELF-DETERMINATION ERA
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico
Special Institute on Natural Resources Development & Environmental Regulation in Indian Country
(May 20, 1999)
The Federal government's trust responsibility towards Indian lands and resources is multifaceted.1 The trust doctrine's role in defining tribes' claims against the United States for taking or badly managing tribal lands has been the focus of much discussion.2 The trust doctrine also figures in defining the United States' duties with respect to minerals development on tribal or individual Indian lands and, consequently, may define the rights of resource developers under Indian lands leases, minerals agreements, or rights-of-way.3 Considerations of the United States' trust duties towards Indians or their lands may arise at the point of leasing or contracting, in the administration by the Bureau of Indian Affairs ("BIA") of activities under approved agreements, and in courts' resolutions of nds of tribes or individual Indians.disputes regarding the lands of tribes or individual Indians.
The nature and rigor of the duties the trust doctrine imposes on the Unites States, consequently, may affect resource development and environmental protection in Indian Country. The requirement of valid approval by the Secretary of the Interior or his authorized delegate ("the Secretary") of leases, rights-of-way, or contracts relative to tribal land leaves the validity of some agreements dependent upon the Secretary's compliance with trust duties.4 Additionally, courts may
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refer to trust concepts to define the Secretary's duties in administering leases or rights-of-way.5 However, while potentially a sword to advance tribal rights, the trust doctrine also may serve as a shield to protect resources developers' interests under tribal agreements.6
These trust notions are built upon venerable foundations. Chief Justice John Marshall's early opinion in Cherokee Nation v. Georgia is bedrock: describing tribes as "domestic dependent nations," Justice Marshall characterized tribes as weak and unsophisticated, reliant upon the protection of the United States:
They occupy a territory to which we assert a title independent of their will,...meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.7
Marshall's premise, that tribes need federal protection of their lands and resources, continues to animate contemporary trust doctrine opinions.
But, while no generalization about tribes will hold, things are changing. While the United States continues to supervise leasing and contracting under federal statutes, tribes increasingly rely on their own scrutiny of proposed transaction, employing skilled legal counsel and experienced minerals advisors. In more and more situations, the BIA's role is being transformed from that of a guardian protecting an incompetent ward to that of an agency responsible for compliance with federal environmental and cultural resource-protective status.8 This change has been heralded as a new era of tribal self-determination, marked by enactment of the Indian Self-Determination Act of 1975.9 The BIA's role, never very effective in ensuring reasonable compensation for Indian resources, now may actually depress their values, as the attendant red tape and delay handicap tribal efforts to compete with off-reservation lands for development opportunities.10
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Beyond the transactional realm, tribes increasingly seek to regulate conduct occurring on tribal lands and for their courts to decide the controversies arising there.11 In some arenas, federal agencies are delegating regulatory primacy12 or program implementation13 to tribes or their agencies. Increasingly, tribes' abilities to enhance tribal well-being will depend upon their abilities to compete effectively in affording opportunities for economic development, rather than upon the level of federal support or the rigor of federal supervision. The BIA already is responding to the fact that some tribes' business acumen has elevated their economic positions to levels surpassing those of off-reservation neighbors.14
Increasingly, the premise of dependency underlying the trust doctrine may not comport with contemporary realities. This Paper seeks to analyze the implications of the trust doctrine in the contemporary era for Indian mineral owners, federal regulators, and private developers. It will trace the historical origins of the doctrine,15 describe the settings in which the doctrine comes into play in contemporary resource transactions and disputes,16 and analyze the duties and standards of care the trust doctrine imposes upon the federal trustee.17 Finally, it will discuss current issues under the trust doctrine; it will suggest ideas for accommodating tribal self-determination in application of the trust doctrine, taking as examples, NEPA and the Endangered Species Act,18 and the implications for an evolving trust doctrine of developing tribal expertise and tribal efforts toward primacy in contracting, regulation, and dispute resolution.19
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I. A RELATIONSHIP "UNLIKE THAT OF ANY OTHER TWO PEOPLE IN EXISTENCE"20 : A BRIEF HISTORY OF THE TRUST DOCTRINE.
The trust relationship that Chief Justice Marshall originally described has several unique characteristics. Two central features were a federal power to control tribal and individual Indians' transactions regarding their lands and the responsibility to exercise a protective supervision over transactions and activities related to tribal lands in the tribes' interest. The origins of those powers and duties are discussed in this portion of the Paper.
A. Federal Power Over Alienation of Tribal Lands
Early decisions held the United States to have overriding powers over tribal lands. In Johnson v. McIntosh,21 the Court reviewed international law cases involving the powers of colonizing European powers over "conquered" Indian-inhabited lands. Chief Justice Marshall's descriptions both of the Indians and the power of the United States reflect much upon the origins of the trust doctrine:
The ceded territory was occupied by numerous and war-like tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.22
As Marshall conceived it, the doctrine allowed the United States to divest tribes of their lands, to enter into treaties with them regarding their remaining lands, and to control tribes' alienation of lands to others. Put simply, "conquest gives a title which the courts of the conqueror cannot deny...".23
Marshall's rationale for subjecting all tribal lands to federal control was premised in large measure on generalizations about the "character and habits" of the Indians. Under international law, the "general rule," applicable in the conquest of one nation by another, was that "the new and old members of the society mingle with each other..., and the rights of the conquered to property should remain unimpaired...".24 Marshall found that rule, however, unworkable with respect to the American Indians:
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But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence.25
Consequently, control of the soil by the conquering European power was necessary to settlement, and, as a result, "[t]he absolute ultimate title has been considered acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring."26 Marshall's notion that discovery and conquest qualified tribes' rights in their lands came to be known as the "discovery doctrine." It is significant to a contemporary analysis of the trust doctrine that Chief Justice Marshall grounded his defense of subjecting Indian tribes to a harsher rule than that applicable to other conquered peoples on notions that Indians simply were different: "those principles which Europeans have applied to Indian title,...find some excuse, if not justification, in the character and habits of the people whose rights have been rested from them."27 It was not merely the act of discovery or conquest, but also the purported nature of the American Indian that subjected tribal lands to colonial and, subsequently, federal powers.
Whatever the source, Marshall's concept of Indian title subject to federal hegemony stands as a central precept of federal Indian law. It already had been reflected in the Indian Trade and Intercourse Acts ("the Non-Intercourse Acts") beginning in 1793,28 and was later made permanent in 1802 and 1834.29 The Non-Intercourse Acts provided that no transfer of interests in lands from any Indian nation or tribe "shall be of any validity in law or equity" unless properly approved by
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appropriate federal action. The appropriate federal action initially was a "treaty or convention entered into pursuant to the Constitution."30 However, after 1871, when Congress terminated the power to make treaties with tribes,31 tribal land transactions were authorized by specific statutes authorizing specific transactions or classes of transactions.32 Consequently, the validity of a resource development agreement requires that it be authorized by statute and approved by an authorized Interior Department official.33
To secure a valid Secretarial approval, the agreement must be authorized by...
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