"A TRAVESTY OF A MOCKERY OF A SHAM": THE FEDERAL TRUST DUTY AND INDIAN SELF-DETERMINATION
| Jurisdiction | United States |
(May 1999)
"A TRAVESTY OF A MOCKERY OF A SHAM":* THE FEDERAL TRUST DUTY AND INDIAN SELF-DETERMINATION
Nordhans, Haltom, Taylor, Taradash & Frye, LLP
Albuquerque, New Mexico
I. INTRODUCTION
This paper examines the general topic of the federal trust responsibility in the era of tribal self-determination. This paper discusses the origin of the federal trust responsibility, reviews the development of the concept of tribal self-determination, summarizes the modern case law in both areas, synthesizes these cases and developments, and, finally, concludes that
• the trust responsibility is now, as it has been historically, rarely honored in matters of significance by the executive branch;
• tribal self-determination is illusory under federal Indian law;
• judicial enforcement of the trust responsibility, however ineffective, should be unaffected by current expressions of favor for tribal self-determination.
II. ORIGINS OF THE TRUST RESPONSIBILITY: RELYING ON THE KINDNESS OF STRANGERS
The colonies delegated to the federal Congress the power "[t]o regulate Commerce...with the Indian tribes." U.S. Const. art I, § 8, cl. 3. By virtue of those six words, the United States Supreme Court has held consistently that Congress has "plenary authority to legislate for the Indian tribes in all matters, including their form of government." E.g., United States v. Wheeler, 435 U.S. 313, 319 (1978). This "all-encompassing federal power," id., is "extraordinarily broad," Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). This federal power is so broad that it includes the power to abrogate unilaterally treaties with Indian nations, Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); United States v. Dion, 476 U.S. 734 (1986),1 to take tribal property without just compensation under various court-inspired legal fictions, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) (no compensation for taking of "unrecognized" Indian title to land); Confederated Bands of the Ute Indians v. United States, 330 U.S. 169 (1947) (taking of Executive Order Indian reservation not compensable); Sioux Tribe of Indians v. United States, 316 U.S. 317 (1942) (same), and, ultimately, to defease all aspects of Indian sovereignty itself, through "termination" or other means, see generally South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 798 (1998) (Congress' "plenary power over Indian affairs [] includ[es] the power to modify or eliminate tribal rights"); Felix S. Cohen's Handbook of Federal Indian Law 152-180 (R.
[Page 2B-2]
Strickland, et al., eds. 1982) (regarding "termination" era of 1950s).
Anglo-American political philosophy reflects a general distrust of such a concentration of power over people. As Professor Richard Collins has written,2 earliest chancery law in England concerned a "very large" number of cases where "kings are always seizing land on very slight pretexts — and forcing other people to prove their titles."3 While the "supplication" procedure devised for such cases did not last, the essential principle of restraint of overbearing power informed and motivated those principles of trust law that did survive — principles respecting guardians, conservators, bailees, and corporate directors and officers.4
When the first cases involving Indian tribal rights came before the Court, the backdrop included the ingrained political philosophy favoring dispersion of power, the Constitutional precept that governmental power should be subject to the consent of the governed, equitable principles developed for restraining otherwise absolute power — and the elevation of the Jacksonians. President Jackson's
cabinet had argued that the tribes had neither political nor property rights under the Indian treaties. Congress had enacted the Removal Act against the Indians' wishes. The Indian Nation's lack of power was starkly set against a Government that forthrightly claimed that they had no rights.5
It was therefore not totally unsurprising that Chief Justice Marshall attempted to restrain what appeared to be the Jacksonian excesses not only with reference to positive law (the several treaties with the Cherokee Nation) but also by equitable principles, stating that the Indian nations
may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take
[Page 2B-3]
effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and its power; and address the President as their great father.
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15 (1831) (emphasis added).
In practical terms, the most notable thing about the suggestion of trust duties in Cherokee is its utter lack of impact on the executive branch and the State of Georgia. A year later, after the Marshall Court reaffirmed its characterizations of the applicable treaties in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), and reversed application of Georgia law to a missionary residing within the Cherokee Nation, President Jackson is reported to have said, "John Marshall has made his law; now let him enforce it."6 Whether President Jackson actually made that statement,7 Georgia certainly did not honor the Worcester decision, President Jackson made no effort to enforce it, and the defiance of both resulted inevitably in the Cherokee march on the Trail of Tears.8
The other significant practical result of Cherokee is the transmutation some half-century later from a relationship creating federal duties to one creating federal powers. The "helplessness" caused by colonial domination and federal neglect (at best) was cited as the basis for congressional authority to enact a statute making it a federal crime for one Indian to murder another within the limits of their Indian country. United States v. Kagama, 118 U.S. 375, 382-84 (1886). Kagama upheld such authority even though the Court concededly could find no textual support in the Constitution for such federal authority. 118 U.S. at 378-79. The Court reasoned:
[T]hese Indian tribes are the wards of the nation....From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power.
[Page 2B-4]
118 U.S. at 383-84 (emphasis in original). Seventeen years later, the power of protection enunciated in Kagama underwent a further mutation, and formed the justification for judicial recognition of the power "to abrogate the provisions of an Indian treaty" "particularly if [such abrogation is] consistent with perfect good faith towards the Indians." Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903). Paradoxically, Kagama's observations allowed the Court first to ignore the Indians' contention that the agreement upon which the abrogation statute was founded "was obtained by fraudulent misrepresentations, and concealment," id. at 567, and then to warrant an unrebuttable presumption that "Congress acted in perfect good faith in the dealings with the Indians." Id. at 568.9
Two other features of the Cherokee cases deserve consideration. First, Chief Justice Marshall dismissed the subsequently accepted interpretation of the doctrine of discovery — the underpinning of all of federal Indian law and American property rights — as an "extravagant and absurd idea, that the feeble settlements made on the sea-coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea." Worcester, 31 U.S. (6 Pet.) at 544-45. See generally Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 Wis. L. Rev. 219, 252-258. Second, in opinions rarely cited, two justices in Cherokee expressed rather coarse disrespect for Indian tribes generally. Justice Johnson urged that "there are strong reasons for doubting the applicability of the epithet 'state' to a people so low in the grade of organized society as our Indian tribes most generally are." Cherokee, 30 U.S. at 21. Justice Baldwin opined that there was "no plaintiff in this suit," id., 30 U.S. at 31, stating that "Indian sovereignty cannot be roused from its long slumber by our fiat," relying in part on the view that, in the Treaty of Peace following the Revolution, Great Britain ceded "soil and jurisdiction to the United States. The Indians were considered as tribes of fierce savages; a people with whom it was impossible to mix, and who could not be governed as a distinct society." 30 U.S. at 48. By contrast, Justice Thompson, joined by Justice Story, opined that it was not "possible to escape the conclusion that [the Cherokee Indians] form a sovereign State." Cherokee, 30 U.S. at 53.
Thus, the majority of the Court found that the Cherokee Nation was a sovereign state or nation, but, as shown below, the contrary view of Justices Johnson and Baldwin prevailed in later years when
[Page 2B-5]
recognition of tribal sovereignty contravened Congress' allotment and assimilation policies or was otherwise inconvenient.
III. MODERN JUDICIAL APPLICATION OF THE TRUST DOCTRINE CONCERNING INDIAN MINERAL RESOURCES
In addition to supplying an extra-constitutional source of congressional power over Indians, the trust duty provides Indian litigants with legal theories to overturn agency action,10 to obtain money damages against private parties and the United States for their wrongful acts,11 and, at least theoretically, to provide limits on the exercise of "plenary" authority by Congress.12
In the...
To continue reading
Request your trial