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The Nature, Issues, and Future of the Federal Trust Responsibility to Indians

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The Nature, Issues, and Future of the Federal Trust Responsibility to Indians Michigan Journal of Environmental & Administrative Law Volume 6 Issue 2 2017 We Need Protection from Our Protectors: The Nature, Issues, and Future of the Federal Trust Responsibility to Indians Daniel I.S.J. Rey-Bear Rey-Bear McLaughlin, LLP Matthew L.M. Fletcher Michigan State University College of Law Follow this and additional works at: https://repository.law.umich.edu/mjeal Part of the Administrative Law Commons, Indian and Aboriginal Law Commons, and the Legislation Commons Recommended Citation Daniel I. Rey-Bear & Matthew L. Fletcher, We Need Protection from Our Protectors: The Nature, Issues, and Future of the Federal Trust Responsibility to Indians, 6 MICH. J. ENVTL. & ADMIN. L. 397 (2017). Available at: https://repository.law.umich.edu/mjeal/vol6/iss2/2 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Environmental & Administrative Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. \\jciprod01\productn\M\MEA\6-2\MEA202.txt unknown Seq: 1 11-JUL-17 13:36 “WE NEED PROTECTION FROM OUR PROTECTORS”:* THE NATURE, ISSUES, AND FUTURE OF THE FEDERAL TRUST RESPONSIBILITY TO INDIANS Daniel I.S.J. Rey-Bear** & Matthew L.M. Fletcher*** ABSTRACT The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, prop- erty, trusts, foreign relations/international law, and constitutional law. How- ever, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid lia- bility, neocolonial judicial activism, and episodic congressional attention. Enact- ment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian policy. TABLE OF CONTENTS I. INTRODUCTION ........................................... 398 R II. THE NATURE OF THE FEDERAL TRUST RESPONSIBILITY ........... 400 R A. Contracts and Property Law........................... 401 R B. Trust Law ......................................... 405 R * Peterson Zah, President, Navajo Nation (1991-1995); Member, U.S. Dep’t of the Interior, Commission on Indian Trust Administration and Reform (CITAR) (2011-2014), as quoted in Letter from Ben Shelly, President, Navajo Nation, to Fawn Sharp, Chair, CITAR (June 4, 2012), https://www.doi.gov/sites/doi.gov/files/migrated/cobell/commission/upload/ Navajo-Nation-Response-2012.pdf. This statement is a declarative form of a rhetorical question possibly first posed by the Satires of Juvenal, a first/second century Roman satirist, “quis custodiet ipsos custodes?” which means “who watches the watchmen?” and has common modern applications on the accountability of political power. See Quis Custodiet Ipsos Custodes, WIKIPEDIA.ORG, https://en.wikipedia.org/wiki/Quis_custodiet_ipsos_custodes%3F (last visited Apr. 16, 2017). ** Partner, Rey-Bear McLaughlin, LLP; Advisor, Restatement, The Law of American Indians (American Law Institute). *** Visiting Professor of Law, University of Arizona Law School; Professor of Law, Michigan State University College of Law; Director, Indigenous Law and Policy Center; Reporter, Restatement, Third, The Law of American Indians (American Law Institute); Appellate judge, Grand Traverse Band of Ottawa and Chippewa Indians, Hoopa Valley Tribe, Mashpee Wampanoag Tribe, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, Nottawaseppi Huron Band of Potawatomi Indians, Poarch Band of Creek Indians, Pokagon Band of Potawatomi Indians, and Santee Sioux Tribe. 397 \\jciprod01\productn\M\MEA\6-2\MEA202.txt unknown Seq: 2 11-JUL-17 13:36 398 Michigan Journal of Environmental & Administrative Law [Vol. 6:2 C. Foreign Relations .................................... 412 R D. (Pre)Constitutional Law .............................. 421 R III. ISSUES PREVENTING GREATER CLARITY OR RECOGNITION OF THE FEDERAL TRUST RESPONSIBILITY ............................. 425 R A. Executive Liability Evasion ........................... 425 R B. Neocolonial Judicial Activism .......................... 441 R C. Episodic Congressional Action .......................... 446 R IV. THE FUTURE OF THE FEDERAL TRUST RESPONSIBILITY ............ 449 R A. Reaffirmation ....................................... 451 R B. Self-Determination ................................... 452 R C. Integration and Elevation ............................. 453 R D. Oversight........................................... 455 R E. Funding............................................ 458 R V. CONCLUSION ............................................ 459 R I. INTRODUCTION Despite concerted federal efforts to address the political, social, and economic status of American Indians over the last two centuries, including hundreds of treaties and an entire Title of the United States Code, Indians continue to suffer disproportionately poor levels of health, education, and employment.1 During this time, federal policies have varied over many eras, including treaty-making, removal, reservations, assimilation, reorgani- zation, termination, and self-determination.2 The current self-determina- tion era has lasted for roughly fifty years, and accomplished much, but many basic problems remain. This includes ongoing American Indian struggles for meaningful economic development, sufficient employment op- portunities, quality education, decent housing, adequate healthcare, and sound infrastructure. There also are recurring high-profile conflicts be- tween Indian interests and others that require federal decision-making.3 1. DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 20–23 (7th ed. 2017). 2. MATTHEW L.M. FLETCHER, FEDERAL INDIAN LAW §§ 3.1–.15, at 51–116 (2016). 3. Just a few recent examples as of the writing of this Article include the construction of the Dakota Access Pipeline across the Missouri River just upstream of the Standing Rock Sioux Reservation, the possible construction of a wall along the United States-Mexico border within the Tohono O’odham Reservation, and the establishment of Bears Ears National Monument in Utah in part to protect land sacred to five Indian tribes despite the opposition of state leaders. See, e.g., Robinson Meyer, The Legal Case for Blocking the Dakota Access Pipe- line, THE ATLANTIC (Sept. 9, 2016), https://www.theatlantic.com/technology/archive/2016/09/ dapl-dakota-sitting-rock-sioux/499178/; Fernanda Santos, Border Wall Would Cleave Tribe, and Its Connection to Ancestral Land, N.Y. TIMES (Feb. 20, 2017), https://www.nytimes.com/2017/ 02/20/us/border-wall-tribe.html?_r=0; Robinson Meyer, Obama’s Environmental Legacy, in Two Buttes, THE ATLANTIC (Dec. 30, 2016), https://www.theatlantic.com/science/archive/2016/ \\jciprod01\productn\M\MEA\6-2\MEA202.txt unknown Seq: 3 11-JUL-17 13:36 Spring 2017] Federal Trust Responsibility to Indians 399 What underlies all these evolving efforts and ongoing issues? Also, why is it taking so long for American Indians to achieve a socio-economic status roughly level with other Americans? Thinking prospectively, what basic principles could or should support a new generation or paradigm of federal policy and tribal relations to achieve significant further improvements in Indian welfare? In the field of federal Indian law, one bedrock principle underlying federal-tribal relations may be essential to future policy develop- ment but is often misunderstood: the federal trust responsibility to Indian tribes and individual Indians. The federal trust responsibility in essence entails duties of good faith, loyalty, and protection, and has been variously characterized as a corner- stone of federal Indian law and essentially just a mere platitude.4 The trust responsibility is a name describing the relationship between Indian tribes and the United States, which involves a duty of protection to Indians and tribes, and defies categorical definition. Also, numerous court decisions, federal studies, and academic reviews have described and assessed the doc- trine, and many recent lawsuits based on it have led to billions of dollars in settlements,5 while many social and economic issues for Indians remain out- standing. Therefore, an improved understanding of the basic principle is needed. For this, it may be helpful to better define how this essential aspect of federal Indian law fits within the larger American legal landscape, and how or why that understanding has been lost, in order to better address ongoing federal-Indian policy issues. Hopefully, a better understanding of 12/?obamas-environmental-legacy-in-two-buttes/511889/ (discussing the controversy sur- rounding Bears Ears National Monument). 4. See FELIX S. COHEN, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, at XI (1941) [herein- after COHEN’S HANDBOOK 1941] (noting competing views and that “the theory of American law governing Indian affairs has always been that the Government owed a duty of protection to the Indian in his relations with non-Indians”). Compare Fletcher, supra note 2, § 5.2, and R FELIX S. COHEN, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 5.04[3][a] (Nell Jessup Newton et al. eds., 2015) [hereinafter COHEN’S HANDBOOK 2015],
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