U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

76–551 PDF 2012

S. HRG. 112–637

FULFILLING THE FEDERAL TRUST RESPONSIBILITY:

THE FOUNDATION OF THE GOVERNMENT–TO–

GOVERNMENT RELATIONSHIP

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

MAY 17, 2012

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on May 17, 2012 ............................................................................... 1

Statement of Senator Akaka ................................................................................... 1 

Statement of Senator Barrasso ............................................................................... 2

Statement of Senator Crapo ................................................................................... 4

Prepared statement .......................................................................................... 5

Statement of Senator Johanns ............................................................................... 5

Statement of Senator Udall .................................................................................... 2

Prepared statement .......................................................................................... 3

WITNESSES

Atcitty, Shenan, Legal Counsel, Jicarilla Apache Nation .................................... 77

Prepared statement of Hon. Levi Pesata, President, Jicarilla Apache Nation ................................................................................................................. 78

Baptiste, Hon. Brooklyn, Vice-Chairman, Nez Perce Tribal Executive Committee .................................................................................................................... 72

Prepared statement .......................................................................................... 74

Fletcher, Matthew L.M., Professor of Law/Director, Indigenous Law and Policy Center, Michigan State University College of Law ..................................... 9

Prepared statement .......................................................................................... 12

Halbritter, Ray, Nation Representative, Oneida Indian Nation .......................... 49

Prepared statement .......................................................................................... 51

McCoy, Melody, Staff Attorney, Native American Rights Fund .......................... 6

Prepared statement .......................................................................................... 7

Rey-Bear, Daniel, Partner, Nordhaus Law Firm LLP .......................................... 30

Prepared statement .......................................................................................... 32

Sharp, Hon. Dawn, President, Quinault Indian Nation ....................................... 67

Prepared statement .......................................................................................... 69

APPENDIX

Kitka, Hon. Julie, President, Alaska Federation of Natives, prepared statement ...................................................................................................................... 101

Masten, Hon. Leonard, Chairman, Hoopa Valley Tribe, prepared statement .... 113

Steele, Hon. John Yellow Bird, President, Oglala Sioux Tribe, prepared statement ...................................................................................................................... 128

Thomas, Hon. Edward K., President, Tlingit and Haida Indian Tribes of 

Alaska , prepared statement ............................................................................... 125

(1)

FULFILLING THE FEDERAL TRUST

RESPONSIBILITY: THE FOUNDATION OF 

THE GOVERNMENT–TO–GOVERNMENT

RELATIONSHIP 

THURSDAY, MAY 17, 2012

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m. in room 

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. The Committee will come to order. 

Aloha and welcome to all of you. Today, the Committee will hold 

an oversight hearing to examine the Federal trust responsibility. 

The Federal trust relationship that exists between the Federal 

Government and the Indian Tribe goes back to the very first days 

of this Country. All branches of the Government, the Congress, Administration and the courts acknowledge the uniqueness of the 

Federal trust relationship. It is a relationship that has its origins 

in international law, colonial and U.S. treaties and agreements, 

Federal statutes and Federal legal decisions. A trust relationship 

carries with it legal, moral and fiduciary obligations that is incumbent upon the Federal Government to uphold. 

When the trust responsibility is acknowledged and upheld by the 

Federal Government, a true government-to-government relationship can exist and thrive. When the trust responsibility is not 

upheld, Tribal sovereignty is eroded and undermined. 

I have been pleased by the actions of the Obama Administration 

settling long-standing litigation brought by Tribes against the U.S. 

Government. Some of these cases involve claims that go back over 

100 years. It is only in acknowledging the lapses in the trust relationship that we can move forward in a way that is beneficial to 

the Government, Tribes and Tribal Indians. 

Today, we hear from legal scholars and practices to discuss the 

trust relationship, its formation, how it has changed throughout 

the years and where it stands now. I am also pleased to have the 

Tribal leaders with us who can share their perspective of what the 

trust relationship looks like on the ground and what it means to 

your Tribal members. 

2

The hearing record for today’s hearing will remain open for two 

weeks from today. I know this a topic of great interest to many 

Tribes and other stakeholders. So, please submit any written comments to be included in the hearing record. 

Senator Barrasso, for any remarks that you may have. 

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Thanks for holding this hearing on this very important topic. 

I just want to thank you for your continued leadership in this 

area. You do a magnificent job and, as you stated, there is a long 

history between the United States Government and Indian nations. 

And I appreciate your willingness to look in, and look back to the 

past and then to provide leadership into the future. 

While much of the history has not been good, the relationship, 

I believe, and under your leadership, has certainly improved. In the 

past few decades, we have seen much improvement. And I think it 

has been a direct result of the Federal policy of Indian self determination, to which you are very, very well committed. 

Now, that policy has led to unprecedented Tribal participation in 

decisions that affect the future of Indian communities. Greater participation has in turn led to greater accountability. Greater participation and accountability has been good for Indian Country in so 

many different ways. Tribal governments have become far more sophisticated and more capable and better able to serve their people. 

That is why I have introduced my Indian Energy Bill, S. 1684, 

which is co-sponsored by the Chairman. Our bill recognizes the undeniable fact that no one can better manage Tribal energy resources than the Tribes themselves. If nothing else, the Cobell litigation and many of these Tribal trust mismanagement cases illustrate an important point. The point is that the United States has 

not been a very effective manager of Indian trust assets and, in 

fact, I do not believe that the Federal Government will ever be able 

to manage these assets better than the Tribes themselves. I am 

convinced of that and I think an ever growing number of Tribes are 

convinced of that as well. 

So, I want to thank all of the witnesses for being here today and 

for providing the Committee with your thoughtful testimony. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, very much, Vice Chairman Barrasso. 

Now, I call on Senator Tom Udall for any remarks he might 

have. 

STATEMENT OF HON. TOM UDALL,

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you, Senator Akaka, and thank you, Senator Barrasso. I think it is important to hold this hearing, a very 

important hearing for Indian Country. And this hearing is a historic event that is vital to establishing an official record describing 

the responsibilities of the Federal Government to the Tribes. 

I hope that this Oversight Hearing on the Federal trust responsibility will help reiterate the extent of this long-standing obligation 

in every branch of Government. As Tribes increasingly engage in 

3

self governance, as the Supreme Court continues to take up Tribal 

cases, and as Federal budgets are trimmed, the question of the 

Federal Government’s responsibility to Tribes is worth examining. 

And that is why it is important that we are doing what we are 

doing today. 

In drafting budgets, the Executive Branch often falls short of fulfilling its trust responsibility. As construction budgets and 

healthcare needs go unmet, in recent years the Supreme Court has 

made rulings that have significantly impacted the relationship between Tribes and the Federal Government to the detriment of 

Tribes and erosion of trust responsibility. 

In June 2011, the Supreme Court decision of Jicarilla versus the 

United States, they ruled on a case called Jicarilla versus the 

United States, is of particular interest to me and my constituents 

in New Mexico. This case is one such example of the Court’s questionable interpretation of the trust responsibility and one of many 

issues that I look forward to discussing with the panelists today. 

I was looking forward to welcoming the president of the Jicarilla 

Apache Nation to the Committee today but, unfortunately, President Levi Pesata is under the weather and unable to make the trip 

to Washington. We hope you feel better soon, President Pesata. But 

I do, however, want to welcome Shenan Atcitty who is standing in 

for the president. 

And I also want to welcome Daniel Rey-Bear, a partner at the 

Nordhaus Law Firm in Albuquerque, New Mexico, and look forward to hearing the testimony of all of the witnesses. And I want 

to thank Daniel for his work for New Mexico Tribes. 

So, with that, I have shortened everything. I will put my full 

statement in the record and really look forward to hearing the witnesses. 

Thank you, Chairman Akaka. 

[The prepared statement of Senator Udall follows:]

PREPARED STATEMENT OF HON. TOM UDALL, U.S. SENATOR FROM NEW MEXICO

I would first like to thank Senator Akaka for holding this important hearing. This 

is a historic event that is vital to establishing an official record describing the responsibilities of the Federal Government to Tribes. 

I hope that this oversight hearing on the federal trust responsibility will help reiterate the extent of this longstanding obligation in every branch of government. 

As Tribes increasingly engage in self-governance, as the Supreme Court continues 

to take up Tribal cases, and as federal budgets are trimmed, the question of the 

Federal Government’s responsibility to Tribes is worth examining. 

In drafting budgets, the executive branch often falls short of fulfilling its trust responsibility, as construction budgets and healthcare needs go unmet. In recent 

years, the Supreme Court has made rulings that have significantly impacted the relationship between tribes and the Federal Government, to the detriment of Tribes 

and erosion of trust responsibility. 

The June 2011 Supreme Court decision Jicarilla vs. the United States is of particular interest to me and my constituents in New Mexico. This case is one such 

example of the Court’s questionable interpretation of trust responsibility, and one 

of many issues that I look forward to discussing with the panelists today. 

I was looking forward to welcoming the President of the Jicarilla Apache Nation 

to the committee today, but unfortunately President Levi Pesata is under the weather and unable to make the trip to DC. We hope you feel better soon President 

Pesata. I do, however, want to welcome Shenan Atcitty, who is standing in for the 

President. 

I also want to welcome Daniel Rey-Bear, a partner at Nordhaus Law Firm in Albuquerque, New Mexico. I look forward to hearing your testimony and thank you 

for your work with tribes in New Mexico and elsewhere. 

4

Thank you.

The CHAIRMAN. Thank you. 

Senator Michael Crapo, your remarks. 

STATEMENT OF HON. MICHAEL CRAPO,

U.S. SENATOR FROM IDAHO 

Senator CRAPO. Thank you, Mr. Chairman, and I, too, appreciate 

your leadership and the leadership of Senator Barrasso. The two 

of you are providing strong leadership for the proper approach that 

we should take in managing our trust responsibilities and I appreciate this hearing as well. 

I apologize, I will not be able to stay for the hearing. But I wanted to get here to introduce one of our witnesses in the second panel 

who is from Idaho. And I appreciate the opportunity to introduce 

Nez Perce Tribal Executive Committee Vice Chairman Brooklyn 

Baptiste to the Committee. 

Brooklyn is a very good personal friend of mine and we work 

very well together and he is a great leader in Idaho. I want to commend him for his leadership both to the Tribe and to the State of 

Idaho and, frankly, to the Nation as his presence here indicates. 

In his tenure on the Nez Perce Tribal Executive Committee, 

Brooklyn has served on the Budget and Finance Subcommittee, the 

Enterprise Board, Law and Order, Youth Affairs Subcommittee and 

the Land Enterprise Commission. In addition, he is an accomplished artist and has been commissioned to produce art for numerous organizations, including the Tribe’s gaming enterprise. 

Throughout my time in the Senate, I have had the extraordinary 

opportunity to work with Vice Chairman Baptiste on many pertinent issues that directly affect the Federal trust responsibility. A 

couple of quick examples. 

The Nez Perce Tribal Big Horn Recovery Project assists the Federal Land Management Agencies in their regulatory responsibilities 

to Nez Perce treaty rights through Big Horn Sheep restoration on 

Federal lands. This project, which has never received Federal appropriations, will hopefully preclude an Endangered Species Act 

listing for Big Horn Sheep which will be a much more effective way 

to approach the issue while protecting the necessary interests that 

we have. 

Additionally, Vice Chairman Baptiste has played a significant 

role in the Nez Perce Tribe’s efforts to find consensus agreement 

among Federal Land Management issues with regard to the Clear 

Water Basin Collaborative in Idaho. 

Today, the Committee will discuss how the Federal Government 

can effectively reaffirm the important trust relationship between 

the United States and the Tribes. And I am sure that Vice Chairman Baptiste will have significant wisdom to give us as we approach that responsibility. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Crapo follows:]

5

PREPARED STATEMENT OF HON. MICHAEL CRAPO, U.S. SENATOR FROM IDAHO

Thank you, Mr. Chairman, Vice Chairman Barrasso, and members of the Committee. I appreciate the opportunity to introduce Nez Perce Tribal Executive Committee Vice-Chairman, The Honorable Brooklyn Baptiste, to the Committee. 

First, I want to commend Vice-Chairman Baptiste for his great leadership to both 

the Nez Perce Tribe and the State of Idaho. 

In his tenure on the Nez Perce Tribal Executive Committee, Brooklyn has served 

on the Budget & Finance Subcommittee and Enterprise Board; Law & Order, Youth 

Affairs Subcommittee; and the Land Enterprise Commission. 

In addition, Brooklyn is an accomplished artist, and has been commissioned to 

produce art for numerous organizations, including the Tribe’s Gaming Enterprise. 

Throughout my time in the U.S. Senate, I have had the extraordinary opportunity 

to work with Vice Chairman Baptiste on many pertinent issues that directly address 

federal trust responsibility. 

For example, the Nez Perce Tribe Bighorn Recovery Project assists the federal 

land management agencies in their regulatory responsibilities to protect Nez Perce 

Treaty Rights through bighorn sheep restoration on federal lands. 

This project, which has never received federal appropriation, will hopefully preclude an Endangered Species Act listing for bighorn sheep, a much more costly restoration effort for the Federal Government, while providing recreational and economic benefits for Idaho and the nation. 

Additionally, Vice-Chairman Baptiste has played a key role in the Nez Perce 

Tribe’s efforts to find consensus agreements to federal land management issues with 

regard to the Clearwater Basin Collaborative. 

Today, the Committee will discuss how the Federal Government can effectively reaffirm the important trust relationship between the United States and tribes. As 

such, I would urge you to listen to Vice-Chairman Baptiste, as he is ideally suited 

to understand how to enhance and strengthen this connection. 

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much, Senator Crapo. 

Now, Senator Mike Johanns, with your remarks. 

STATEMENT OF HON. MIKE JOHANNS,

U.S. SENATOR FROM NEBRASKA 

Senator JOHANNS. Mr. Chairman, thank you. I also can be here 

just for a limited time so I will abbreviate my comments and submit anything additional that I would like to say in my opening 

statement for the record. But I do want to just say to the panel, 

and the second panel, thank you for being here. 

Mr. Chairman, I know of no other issue that is more central and 

bedrock to our relationship than this issue which is the subject 

matter of this hearing, the trust relationship. And so, I am very 

anxious to hear the panel members speak to it and I compliment 

you for holding this hearing. I think this hearing is due. I think 

it is important that we air this and I am anxious to hear from our 

witness. 

Again, thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Johanns, for your 

remarks. 

I would like to invite our first panel to the witness table and to 

introduce them as well. 

Ms. Melody McCoy, Staff Attorney of the Native American Rights 

Fund in Boulder, Colorado; Mr. Matthew Fletcher, Professor of 

Law and Director of the Indigenous Law and Policy Center at 

Michigan State University College of Law in East Lansing, Michigan; and Daniel Rey-Bear, a partner at the Nordhaus Law Firm in 

Albuquerque, New Mexico. 

Welcome, Ms. McCoy, please proceed with your testimony. 

6

STATEMENT OF MELODY MCCOY, STAFF ATTORNEY, NATIVE 

AMERICAN RIGHTS FUND 

Ms. MCCOY. Thank you, Mr. Chairman, members of the Committee. Good afternoon. 

I am Melody McCoy, enrolled member of the Cherokee Nation in 

Oklahoma and a staff attorney for coming up on 26 years now at 

the Native American Rights Fund in Boulder. 

I appreciate the opportunity to testify today regarding the statutes and the cases that govern the accounts, funds and assets that 

are held by the United States Government in trust for American 

Indian and Alaska Native Tribes. 

NARF has been representing over 40 Tribes in their historical 

claims for breaches of trust accounting and management duties. 

Some of these cases have been in court for 20 years and all of them 

have recently been in settlement negotiations with the Government. 

Of course, the Government’s holding of trust accounts for Tribes 

dates back to an 1820 Federal policy. When the Government purchased land from Tribes by treaty, it did not directly pay the 

Tribes. The Government chose to hold the payment in trust, the 

money itself in trust, unless and until it distributed to the Tribes. 

These old treaty funds, over time, evolved into statutes by which 

today the Government holds in trust judgment awards, which are 

pure monetary awards or claims settlements to Tribes typically 

from entities like the historic Indian Claims Commission, and proceeds of labor accounts, which are trust accounts based on income 

earned from land, natural resources, trust assets that are under 

trust management for Tribes by the Government. And today, the 

Government purports to hold about 2,900 accounts in trust for 

Tribes. 

Government management of Tribal trust accounts, funds and assets are governed by several statutory schemes. There are statutes 

that address the accounting duties and issues. There are statutes 

that address the investment of the Tribal trust funds. And there 

are statutes that address the management of the trust assets and 

natural resources. By these statutes, by and large Congress has 

delegated authority for these trust duties to the Department of the 

Interior and the Treasury. 

In the investment statutes, the history of that is that typically 

early on there were Tribe specific treaties or statutes that ensured 

that, as I said, when the Government held the funds in trust for 

Tribes as payment for the treaty lands, the Government was obligated to earn interest on those funds. Throughout the 20th Century, the statutory fiduciary investment duties and beneficiary protections increased for these Tribal trust funds. Today, the statutes 

are codified in Title 25 at four separate sections, 161, 161a, 161b 

and 162a. 

In general, the Interior Department has discretion to deposit 

Tribal trust funds in the Treasury or to invest them in a range of 

statutorily approved financial investments outside of the Treasury. 

If they are deposited in the Treasury since 1984, they must earn 

interest at rates determined by Treasury considering, as the statute says, current market yield on comparable marketable obligations. Since 1974, regulation of the Interior Department have reVerDate 0ct 09 2002 14:07 Dec 11, 2012 Jkt 076551 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 S:\DOCS\76551.TXT JACK
7

quired judgment awards, the pure monetary funds, to be invested 

outside of the Treasury. 

The resource management statutes for Tribal trust assets and resources are numerous and they typically deal with the management of Tribal land and natural resources such as oil and gas, minerals and timber. I refer to the Handbook of Federal Indian Law. 

They have, perhaps, a good summary of those. 

In the accounting statutes, this is probably Congress’ most recent 

foray into those, and there have been three separate series of statutes involving accounting issues for Tribal trust funds and those 

are set forth. 

And on the cases, I briefly want to go through three points. The 

historic Indian Claims Commission was a statutory scheme, a 

unique statutory forum set up by Congress, in the 1940s, 1950s 

and 1960s and, after three decades, ultimately the Indian Claims 

Commission awarded over $1.2 billion to Indian Tribes in the form 

of these judgment awards that again were held in trust until they 

were distributed. 

The Indian Claims Commission has ended and the Supreme 

Court, without that kind of a forum, has made it difficult for Tribes 

to bring these cases although, as we have seen now, there are 100 

Tribes that have brought cases involving these historical mismanagement claims. We have settled perhaps about half of those, 

most of those under the current Administration. 

So, I think it very timely that this Congress take a look at this 

issue in the wake of these historic settlements. And we really appreciate this hearing and the opportunity to assist the Congress 

and, most importantly, we urge Congress to work with Tribes in a 

government-to-government fashion and in respect of Tribal sovereignty to see what needs to be done next. That is what needs to 

happen. 

Thank you. 

[The prepared statement of Ms. McCoy follows:]

PREPARED STATEMENT OF MELODY MCCOY, STAFF ATTORNEY, NATIVE AMERICAN

RIGHTS FUND

Introduction and Overview 

Good afternoon Members of the Committee. I am Melody McCoy, an enrolled 

member of the Cherokee Nation and a Staff Attorney at the Native American Rights 

Fund (NARF). NARF thanks the Committee for the opportunity to testify today regarding the statutes and cases that govern the accounts, funds and assets that are 

held by the United States government in trust for American Indian and Alaska Native Tribes. NARF represents over 40 tribes in their historical claims for breach of 

trust accounting and management duties. Some of these cases have been in court 

for 20 years and all them have been in settlement negotiations with the government. 

The government’s holding of trust accounts for tribes dates back to an 1820 federal policy. At that time when the United States by treaty purchased land from 

tribes the government did not make direct payment to tribes; rather, it held the 

money in trust for tribes unless and until it distributed the money to the tribal 

beneficiaries. Over time this policy and practice evolved into statutes by which the 

government holds in trust ‘‘Judgment Awards,’’ which are monetary awards or 

claims settlements to tribes typically from entities like the historic Indian Claims 

Commission, and ‘‘Proceeds of Labor’’ accounts, which are based on income earned 

from land and natural resources that are under trust management for tribes by the 

government. Today the government purports to hold about 2,900 trust accounts for 

about 250 tribes. 

8

Tribal Trust Statutes 

The government’s management of tribal trust accounts, funds, and assets are governed by several statutory schemes. There are statutes that address tribal trust accounting duties and issues. There are statutes that address the investment of tribal 

trust funds. There are statutes that address the management of tribal trust assets 

and natural resources. By these statutes Congress has delegated authority for fiduciary duties regarding tribal trust fund accounts, funds, and assets primarily to the 

Departments of the Interior and the Treasury. 

Investment Statutes. Nineteenth century treaties and statutes usually ensured 

that while it held funds in trust for tribes, the government was obligated to earn 

interest on the funds. Throughout the twentieth century, statutory fiduciary investment duties and beneficiary protections increased for tribal trust funds. The statutes governing the government’s investment of tribal trust funds are codified at 25 

U.S.C. § § 161, 161a, 161b and 162a. Generally, the Interior Department has discretion to deposit tribal Proceeds of Labor account funds in the Treasury or invest 

them outside of the Treasury in a range of statutorily approved financial instruments. If deposited in the Treasury, since 1984 they must earn interest at rates determined by Treasury considering current market yields on comparable marketable 

obligations. Since 1974 Interior regulations have required Judgment Awards to be 

invested outside of Treasury. 

Resource Management Statutes. A good summary of the general statutes governing the management of tribal land (including leases for agriculture, grazing and 

rights of way) and natural resources such as oil, gas, minerals and timber that the 

government holds in trust for tribes can be found in Felix S. Cohen, Handbook of 

Federal Indian Law § § 17.01–17.04 (2005 ed.). These statutes typically include provisions for the government’s collection of income from the management of tribal 

trust assets and deposit of that income in Proceeds of Labor accounts for tribal 

beneficiaries. There are also a few ‘‘tribe specific’’ statutes that govern the government’s management of the trust assets or natural resources of a specific tribe. 

Accounting Statutes. Congress recently has addressed tribal trust account accounting matters in several ways. Since 1987 Congress has mandated that the government perform and provide tribal trust account accountings, audits and reconciliations. Pub. L. No. 100–202 (1987). The accounting and audit mandates are key features of the American Indian Trust Fund Management Reform Act of 1994. Pub. L. 

No. 103–412; 25 U.S.C. § § 4044, 4011(c). In addition, since 1990, in the so-called 

Indian Trust Accounting Statutes, Congress has provided that, with respect to tribal 

trust fund mismanagement claims, the general six year statute of limitations for 

claims against the government does not begin to run unless and until the government has provided tribal beneficiaries with proper trust fund accountings. Pub. L. 

No. 101–512 (1990)—Pub. L. No. 112–74 (2011). In the wake of the provision of reports to tribes in 1996 as a result of a government contract with the accounting firm 

of Arthur Andersen to perform tribal trust accountings, in 2002 and 2005 Congress 

provided that for purposes of applicable statutes of limitations the date on which 

tribes received their Arthur Andersen reports is deemed to be December 31, 1999 

and December 31, 2000 respectively. Pub. L. No. 107–153 (2002), Pub. L. No. 109–

158 (2005). These last two sets of statutes are intended to toll the commencement 

of statutes of limitations on tribal trust accounting and mismanagement claims and 

defer the accrual of such claims. 

Tribal Trust Cases 

Indian Claims Commission. Historically tribes had limited access to federal courts 

and had to get special acts of Congress authorizing their claims against the government. In 1946 Congress created the Indian Claims Commission (ICC). Pub. L. No. 

79–726. The ICC was authorized generally for a limited time period to hear and adjudicate historic claims of tribes against the government that accrued before August 

13, 1946. It had jurisdiction only to award money damages. There were over 600 

ICC claims filed. When the ICC began, the government was holding about $28 million in trust for tribes. The ICC ultimately awarded over $1.2 billion to tribes as 

Judgment Awards held in trust by the government unless and until distributed. 

Supreme Court. Tribal access to federal courts today is generally more available 

but the U.S. Supreme Court has set strict requirements for tribes suing the government for money damages for alleged breaches of trust. The Court requires tribes to 

show a substantive statute or regulation that (1) imposes specific fiduciary duties 

or creates specific beneficiary rights and (2) can be ‘‘fairly interpreted’’ as mandating 

compensation by the government in the event of a breach. United States v Mitchell,

445 U.S. 535 (1980) (Mitchell I); United States v Mitchell, 463 U.S. 206 (1983) 

(Mitchell II); United States v Navajo Nation, 537 U.S. 488 (2003) (Navajo I); United 

States v Navajo Nation, 556 U.S. 287 (2009) (Navajo II). 

9

Post-AA Reports. As noted above, tribal trust account holders were provided Arthur Andersen reports in 1996. The Arthur Andersen reports examined some transactions in some tribal trust accounts for a 20 year period (1972 to 1992). Also as 

noted above, for limitations statute purposes, in 2005 Congress deemed these reports to have been received by tribes on December 31, 2000. Without further addressing of the matter by Congress, by the end of 2006, over 100 tribes had filed 

claims in federal courts for historical trust accountings or for damages for trust 

funds and asset mismanagement. 

Due to threshold issues of jurisdiction, discovery, evidence and procedure very few 

tribal trust cases have proceeded to determinations regarding the merits of a tribe’s 

claims or remedies. To this day there are no final unappealed court decisions on the 

merits of government liability for historical failure to account or for funds or assets 

fiduciary mismanagement. There are no final decisions with appeals exhausted regarding the existence or scope of remedies or relief that may be judicially awarded. 

Tribal trust cases are costly and time consuming. 

Settlements. Between 2001 and 2009 there were four full or partial negotiated settlements of tribal trust claims. From 2010–2011 there were another three negotiated 

settlements. In 2012 there have been negotiated settlements in 42 tribal trust cases. 

Conclusion 

Many reports from federal agencies including the Government Accountability Office and the Department of the Interior’s Office of the Inspector General have been 

highly critical of the government’s historical failure to account for and properly 

manage tribal trust funds and assets. Government contractors including Arthur Andersen and Price Waterhouse have reached similar conclusions. The 1994 Trust Reform Act was preceded by House Report No. 102–488 (1992), entitled ‘‘Misplaced 

Trust: The Bureau of Indian Affairs’ Mismanagement of the Indian Trust Fund.’’

In light of these reports, court cases and settlements, NARF believes that it is 

timely for Congress to review the government’s on-going fiduciary management of 

tribal trust accounts, funds and assets. While it is not for NARF to make specific 

recommendations, in keeping with tribal sovereignty, the federal policy of government-to-government relations with tribal nations and the recent United Nations 

Declaration on the Rights of Indigenous Peoples—which includes the right of indigenous peoples to ‘‘free, prior and informed consent’’ to approve or reject proposed actions or projects that may affect them and their land and resources—NARF urges 

Congress to work with tribes regarding any needed trust reform. The new Secretarial Commission on Indian Trust Administration and Reform is tasked with providing advice and recommendations to the Secretary of the Interior on trust management. As part of its comprehensive evaluation of government trust management 

the Commission is seeking the input of tribes and Indian organizations at a scheduled series of public meetings this year. Tribes and national and regional tribal organizations have invaluable experience and expertise on tribal trust accounts, funds 

and assets that can be shared with the Commission, and with Congress through 

hearings such as this. 

Thank you for the opportunity to assist the Committee at this Oversight Hearing.

The CHAIRMAN. Thank you very much, Ms. McCoy, for your testimony. 

Mr. Fletcher, will you please proceed with your testimony. 

STATEMENT OF MATTHEW L.M. FLETCHER, PROFESSOR OF 

LAW/DIRECTOR, INDIGENOUS LAW AND POLICY CENTER, 

MICHIGAN STATE UNIVERSITY COLLEGE OF LAW 

Mr. FLETCHER. Thank you. Chairman Akaka and Members of the 

Committee, it is a pleasure to testify today on the Federal trust responsibility to Indian nations and I say chi-miigwetch for the invitation to testify. 

I am a member of the Grand Traverse Band of Ottawa and Chippewa Indians which is located in the center of the universe, 

Peshawbestown, Michigan. I am the co-author of the sixth edition 

of Cases and Materials on Federal Indian Law with the late David 

Getches, Charles Wilkinson and Robert Williams, and the author 

10

of American Indian Tribal Law, the first casebook for law students 

on Tribal law. 

In 2010, I was elected to the American Law Institute and my colleague, Wenona T. Singel and I currently head up the effort to initiate an ALI restatement project on American Indian Law. Chapter 

one of this proposed project will be on Tribal Federal relations. So, 

it is very fortuitous that I have been called to testify today. 

I am going to talk a little bit about the historic underpinnings 

of the trust responsibility to begin. The Supreme Court interpreted 

the meaning of the Indian Commerce Clause and how it interacts 

with Indian treaties in the so-called Marshall Trilogy of early Indian law cases. In Johnson v. M’Intosh, an early Indian lands case, 

Chief Justice Marshall held that the Federal Government had exclusive dominion over land transaction with Indian Tribes, exclusive as to individual American citizens and as to State government. 

In Cherokee Nation v. Georgia, Chief Justice Marshall held that 

while Indian Tribes were not State governments as defined in the 

Constitution, nor were they foreign nations. They were something 

akin to domestic dependent nations. 

And finally, in Worcester v. Georgia, Chief Justice Marshall confirmed that the laws of States have no force in Indian Country and 

that the Constitution’s Supremacy Clause has powerful, gives powerful effect, to Indian treaties as the supreme law of the land. 

The latter half of the 19th Century and first half of the 20th 

Century was a low point in Federal Tribal relations, however. In 

cases like United States v. Kagama and Lone Wolf v. Hitchcock, the 

Supreme Court adopted a guardian-ward concept of Federal Tribal 

relations. The guardian-ward concept gave license to the Executive 

Branch and Congress to interfere with internal Tribal affairs, undermine and even expropriate without just compensation Tribal 

property rights and to eliminate the ties between Tribes and the 

Government during what we now call the Termination Era. 

The trust responsibility never completely disappeared, however. 

In 1942, the Supreme Court held in Seminole Nation v. United 

States that the U.S. should be held to the most exacting fiduciary 

duty when handling trust funds. I will quote from the Court at this 

time. 

‘‘Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this 

Court, it has charged itself with moral obligations of the highest 

responsibility and trust. Its conduct, as disclosed in the acts of 

those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.’’

In 1970, President Nixon’s message to Congress announced a 

fundamental shift in Federal Indian policy, self-determination. The 

message renounced the termination policy, established that adherence to the Federal trust responsibility would now guide Federal 

Indian policy, and proposed a structure to dramatically reduce Federal control over internal Tribal relations by recognizing greatly increased Tribal authority to manage affairs on their reservations as 

a replacement for Federal bureaucratic control. 

Congress has generally adhered to the concepts of the trust responsibility in virtually all modern Indian affairs legislation, from 

1971 with the Alaska Native Claims Settlement Act to the present 

11

with various water settlements and the Tribal Law and Order Act. 

Appendix 1 of my testimony lists many of these statutes. 

There have been no termination acts or similar statutes for over 

50 years. I have to thank Reid Chambers for reminding me of this 

continually. This history of Executive and Congressional voluntary 

adherence to a trust relationship is at the heart of the Federal 

Tribal relationship in modern times. I will add that the Solicitor 

General’s decision making record in acting as a trustee for Tribal 

interests since 1970, before the Supreme Court, largely has been 

exceptional. 

But not all is well with the trust responsibility. Conflicts of interest undermine the Federal Government’s duties and the Supreme 

Court has enabled the Executive Branch to avoid responsibility for 

consequences of trust breach to Indian Country . I am the author 

and editor of a blog called Turtle Talk where I have been following 

a lot of these conflicts of interest and I am more than happy to talk 

about them during the question and answer period. 

And I will add, as you can see in my summary, that there are 

many examples of this including the current relationship with the, 

excuse me, the National Labor Relations Act as to its application 

to Indian Tribes and casino interests, the conflict within the Department of Interior about the San Francisco Peaks and the trust 

responsibility in terms of, in that regard as well. 

I thank you for your time and for the Committee’s leadership in 

this area. I welcome your questions. Chi-miigwetch. 

[The prepared statement of Mr. Fletcher follows:]

12

PREPARED STATEMENT OF MATTHEW L.M. FLETCHER, PROFESSOR OF LAW/DIRECTOR, 

INDIGENOUS LAW AND POLICY CENTER, MICHIGAN STATE UNIVERSITY COLLEGE OF

LAW


517a1.eps
13


517a2.eps

I. The Foundations of the Tru~t Responsibllliy 

The eonstitlltiQII!l1 text provides for two :neans by which Indian tribes and the United 

State;; will in~rllCl. First. the- sn-~a1led Indiar, Commerce Clause provirlml th~.t Congress has 

authority to re£.lliate commerce with the Indian trIbes. One of tho first a;:!s cfthc First Olngress 

was to implem~nt the Indian Comm= Clause in t:lte Trade nnd In!ercourse Att of 1790? 

Sccnnd, the federal gOYCTnment's lfeaty power prtlvllles all ac!uitiolJal furrn by which the United 

States dr:als with Imlian tribes_ -l1lere are hundreds of valid and elUant treaties between tht: 

United States and various IndJan tribes. 

The Marshafl Trilogy 

The Supreme Cmllt mtcrpret;:d the meaning oflhe lndlan Commerce Clause and how it 

mteracts with Indian ltc:lties in lbc SCH:!tIl~d Marshall Trilogy of eariy India;; law tascs. In 

Jatir=n 1'. M'lnwsJl,l an early Indian !;mds cas" ClOOf ]ustk'" Mar:ma:l h~ld that the lMernl 

govemmen: had exclusive dominioll over u,nd !J'IIlIsaetj0)13 wit!! [ndinu tribes _ el\otusivo as !::. 

individual AmdciIll ciLizcl1S and, implicitly, :ilS to state government. In ChtHJkel! Nation 1'. 

Georgla,4 Chief Justice Mnrshall's plurality opinion asserted that while Indian tribes were not 

state governments a~ defined in the COMtituticn, nor were they foreib'll nations, they were 

something akin to "domestio dependent nations." And, finally. in Worcc..ilCr 1'. Georgia,' Chief 

Justice Marshall oonfirm~d that the laws of states have "tiO force" in Indinn Country, and that the 

Constitution's Supremacy Clallie gave powerful effect to Indian treaties as ~the S!lprmm:: law of 

the land." 

ill eooil of these three opinions, Chief Justice Marshall recognized moral llmllatio::s on 

the :ederal gOYl'!mment's plenary authority in Indian affai(~; fer exaJlple, in Johnson 1'. 

M'lnwsh. he wrote, ~Humanity, Ilowe~'er, aoting on public opinion, has eSlablished, as 1;1. General 

rule. that the conquered shall not b", wanlonly oppressed, and that their conditio!) shall remain as 

eligibk as is compatible with the objects of the COI1'1UcSt."" Other Ju~ti~s pressed Marshall 011 

the status affndian trihC<l in the American Republic, however, fOCUSing on the word "prot~ctian" 

"r my other P"""""" \\rhil\J>S. I l~'~~ D:!~ Ro,-llo"" for S1lb,lIInliYc ccmm<rrts. 1 UIsD tb~lJ~ El~i"c nn" for 

do"doping tll0 ml1lWi~1s in App~m!i" ). 'So. An Act to rcgulnlo \r;Idu nnd i",moum: with the lndi.n Irib.,;;July 22, 1790, I SI.t. 137, ""'I' (Il<iijir.uf a$ 

amelldr.ufal2S U.S.Co § 177-

) 21 U.s. 5H (1923), 

'3(lU.s.l (1831). 

'3\ U.s.515(1&31~ 

°JaJm$o",21 U.S.~t5g!l", 
14


517a3.eps

in e~r!y Indian treatj~S.7 The variou~ Juslice~ debated (h(: meaning of "pro ted ion" as being either 

an invitation to dependen~e or the recognition ofpoliticr(\ distinctiveness. 

A=nling to Chief Justice Marshall in the Johnstm case, Indian tribes included 

dmacteri.5iks of beth "dependent" ami "distinct" nations,8 II sur! of mWdlc ground. Bm in 

CherokeE Na!um, writing for "the Court" (but really only for hirnselfand one other Juslicc),9 he 

famously labclcd lmli~n lribes ''domestic d~[l<'rnlent llutions,,10 as a new legal term of art created 

from whole cloth in Ordcl' (0 avoid classifYIng Indian tribes as either States or fureign n~tions. In 

this case, the Chief Jm:tlce denigrated Indian tribes 1\ great deal: "mhey are in II stn\e or 

pupiluge. TIleir relation to the United States resembles that ofa ward 10 his guardlan.~l1 

Justice Thompson's dissent in ChfJrOkee NallOn suggesled II different reading (lftho word 

"pro1eGtion." Drawing on prindples ofintematiunal commnn law, Justice Thompson found thnt 

W3aker suues sil,'Iling trestles ofpmtreliun do not, a'; a side~4 :oso;; their sovereignty; 

[A] we<lk stale, !tlllI, in creer to provide fOI' lis sarety, places Itself under the 

protection of a more powerful one, without stripping itself of the right of 

government alld sovereignty, does not eea~ 011 Ihis account 10 b", placed amoHg 

the sovereignS who acilHowl",dge no other power. Tributary und feudalory states 

do not the,,~by cease I;() be sovereign and Independent states, 50 long as self 

government, and sovereign and independent a\lthOrily is left in the administration 

afthe ~ta:tl.12 

All iliat is rcqui£ecI for a weaker sl.-ate 10 mam stll',er.ooo is n res<:r"ntion f.1fthe right ttl sel.fgovernment, a staple in A.-aerlean Indian tre::tres.!J "Prolection~ and r,mil,mhood are not mmually 

eltcl\lsiv~. 

While Justice Thompson's dofinition of "pl'otcetiou" did not win the doy In Chcrokc~ 

Nati(Jn, the Court in Worcester, per Chid' Justice Marshall, ndQptcd his analysis. Writing for the 

Court. Chief Justice Marshall drew upon the relations betw~eu Gre~t Britain and th~ Indiull tribcs 

'B""idcs the. Chc.mkee. ('-".,11"11', "lIto, Indian \,,,,,Ii,,,, tho M."""n Court disouSS<:<!. includi~g tho Dcbmro tre'HY. 

Ull<:d !~.<> l<:l'll> 'y,r<>IOClIM" rus ",,,II. SeJJ CMr"""~ Nell"", JI) U.s. a\ 6j (fhump.,m, J~ ~;'><:nllnll); """ illS!> 

W,.,.. .... .ver,31 U.s.~t SSl (;tnl;ng (/lot HIt)ll!~$Ilr.el:l!km Is found In !r.di.n(r<:lIti~s,gc,"""U~·'l • 

• J<JknsW!, :U U.S. ~l S% ("The 1"'0uli.r s~" .. limI "f the j",Ji ....... ",,==rill eom"cie,;:d, '" """'~ ,~ts, "" n 

depond",,!, ar.d in some tt:.~ """ dr.lj~.ct ,,"Gpl!!, """~;>;.Jng n "'~nl!y chllm<:d by Gre.,. Britmn, ~nd yet In" 

~ow",r,'1 ond bravo not 10 b~<il"adod os form;d:lblo on':nies ... _~l. 

C/1IV'I>/M. NQ/iM,30 U.S.~t l~ {M.rsball, CJ.j. 

,. rd. at 17 (Marshall, CJ.). 

11 !d. (M""h.lI, CJ.). 

"S.e Cb.role .. N"llan,.)O U.S. ot5:! rrhomp.>on, J., disso[lt;L\g). 

Il S.e Ill. at 54-5, (,fhcm"""n, 1 .. di",<nlingj r'Thcy h."~ fl<:ver been, by conque,l, reduced II;) tho ~tullItron of 

!uhjecl!Ill;) 3n)' cOIlq""m', .nd lhcrehr lost lhcir seporate nationol cxi>lt,noe, Wld \be rights or self government. and 

bcC<!mc subject to tho I.w. ot'!he ~0"'l""ror. Wh<n cvo, wars ~~"" Wkc1l pI.ce, they h.ve ooen futlowtd by regoJl", I1'OSt\""", "fl'eaco, onn1!linjng st;pulntin~. on eiIcl! .We aceurd!"!l' IU existing ciroltm:;:\;l3w5; lh~ lndi"n ~'It;0f\ ~:l'IlYS 

p'C$CI''';ng i'J! d,slinot a"d "'p"""~ nal\=1 ch • ..,<:\<Jr.'1. 
15


517a4.eps

pre-Revolutionary War to find that "prot~ction" IDomit wbm the Indians would have thought it 

meant - "It merely bound the nation to the British crown, !\5 a dcpcn<k:nt ally, clahning the 

pmleetion of II powerful friend and neighbour, and r~coMng the advantages oflMt proleoti<m, 

without inro'V;!1£; a SIlrr<mder oflheir nlllionul clHlfact~r.,,:4 So itwas v.ith the British crown as il 

is >'\itl: the AnwrK:w. govetmmmt, Chief Justice Marshall added - "Tile CIle:nkee& acknowledge 

thcmS<J!ves to be onder Ihc llmtcc!io.n of ,he United States, and cf no otller po\\'er. Protection 

does not imply the destruction of the protected."lS 

Chicf Justice Milrshlll1 ended with his fumous dictum, "The Cherohe n~tion, then, is II 

distinct community, occupying its own territory, with boundnrles nccumtely de.<;oribed, in which 

tho laws ofOcorgia can have l][l force, alld which the citiz.ens of Georgia have no right jo. ~nter, 

om Wilh the 1ISSellt of the Cherok.;:e themselves, or hI confurmlty wilh trentles, Dnd with the acts 

Qf COllg=.,,16 

T!w Gmlrditm-W:u;/ RewfiolU>-ilip (1835-1970) 

Chief Justice Marshall's view Ihat Indian (rib(lS were "'distinct politiool communities" 

residing vn lands whnre Slale law "eM have 110 foree" did not prevail for long. l1'111e latter half of 

the 19th ~entury and firS! half of the 20th C<lnlury was a low point ill federal-fribal relaitcms. In 

cases like Uniled S/(1,(~.t v, KagmJ1t2, 11 Stephens 1'. Chemkae Na/ian,19 ChBTokae Nalian v. 

fIilcirror:k,:JD and Lrme Wolf v. Hjlchcock,~1 the Supreme Court adopted a "guardian-ward" 

COIlCIJpt of feder,d-tribal mlathms.22 

Tee Supreme Court's rovic-w QfCongressiooal (w/:s if- this I\.'"ea rel>ehed an extreme ievel 

ofd~ference when it he!d in Lona Wolf'll. mfc!u;or:li;Zl tbat challenges Ie COllgressi-.."IJla! all1hority 

to regulate Incii~n ~ffuirs were foreclosed by what is now rtlrcrred to as the ?oHtlcai question 

doctrine." Lower courts followed the Supreme Court's IB~d in eases like Urliff:d Slates v. 

Clapox,~s where the oourt h~ld that Indian reservatiOt1$ W<lN a kind of school for Indiw people tc:l 

le~rn how to b~come civiliz~d, 

'~SI!~ WIJFC~sre,., 31 U.i> • .aSS:!. 

";d.atSSJ. 

I'fd.rJ:>l'l. . 

j1 S& Mt:ohel~. t.'nlte~ $mle;. 34 u.s. 711 (lSJ51{re!lr:tlmg tD r"~~=)'rlu:t"n£). 

,. 118 U.8_J7S(I&%). 

"174 U.s.~4~\1!199J. 

,. 1&7 u.s. 294 \l9!J2), 

" 187 U.S.553 (19!J3). ,. s.. gen.rally Reid P"}'l~n thornb.r., .h,dicial El!for~I!nI~!I( qf rho l'odoml Trim fI~sfJMtihillly In 1l1dians, 27 

STAN. L REV. 1213, 1214_29 (I91S); Rdd I'cyl<ll1 Ch.mb~ &; Mon,oe E. l'rioe. Reg~lafil'li &nwoigmy. 

SI!Crerrn-ia/ DW:'eliQ11 and Ih~ /.eIISing o[lnifln11 Ur11ds, 2fj SlAN. L. RE\'. 10ti1, 1068-75 (1974): Fel",- S. Cohen, 

India" RightsondIf>eFederoICau>1S.24 M'~N.L. REv. 145.19.5,~9 (1940). 

::> I &7 U.S. 55J (1903). 

" fd."'565·66. 

1> 351'.575 (I). Or. 13S8). 
16


517a5.eps

The guardian-wurd concept gave license 10 Congress and the El(ooutivc b"mch LO 

interfure with int~mal tdbal affairs, undermine II..1d evcn expropriate wiLIlOutjust cOlllpcnsntion 

tribal propc:rty fighl~, and 10 eliminrrte the ties between tribes and LFje gQVlmlmen! during the 

Terminat'on Era. For example, Congress rulopted allQtment ofIndianlands as nmkmal poliey In 

!887. President Theodore Roose,>clt rofe:c,ed to tile EIIotment policy ill. 190; lIS "~ mighty 

pu!veri~ing mgin<l t() break up the bibn! 111=.,,1(1 it was enulmous!y effuctive in r~ducing tile 

tribal land ba= From 1887 when Congress adopted this policy until 1934 when it ended the 

policy, two-thirds of tribal lrmd holdings moved into llon-Indian O'MIership.21 

Congress also el(perimented with extending ~latc jurisdiction into Indian country. In 

1953, Congress passed Hou~e Concurrent Re5uJulion 108, calling for thc cvcnbml termination of 

services and progrnms to triba.l governments. O;mgmss then began the process of choosing 

Indlvldual !ndlnr. tribes a.'1d termirmting them. Congress targeted tri~ mostly in CaUfomia, 

Oregon, Utah, Oklaooma, and Wi!!Clln~in for te'-min~iun, whicl; consisted of cutting offfudernl 

appropriations, disbanding \ribal govt!Onment, and privatizing tribal buslr.esses.V: President 

Kennedy informally pili the practice on hold lmd by 1973 Congress had formally ended the 

termination era by restoring the Menominee Tribe to ful! status as a federa!lyrecogniv;:d trjbc.·~ 

Not all terminated tribes havo been restored, however. 

During the Termination era, Congress enacted seVera! statutes that served Ihe process of 

terlllinotion. [n t953, Congress enacted a 5tatute corotnonly known as Publio Law 280 that 

extcmkd stnte criminal and civil adjudi!;lliory jurisdiction into Tndian country in severa.! 51ates, 

most noub!y j" California, without tribal CO!lsent.JO 01i:cr states hod {he ordon ::.f !ll:c~pting 

j;<rlsdiction ovcr Indian country. 

Thc trust responsibility never compleiely disappeared, howevcr. In 1942, the Supreme 

Court held in Semillilk Nalloll v. United Siaies.n thai the United States should be held to the 

most exacting fiduciary duty when. handing tribal tru~t funds: 

Furthermore, thIs Court has recogniz~d the distinctive obligation <)f trust 

incumbent upOn the Government In its dealings with thC5C dcpcnd~l1t gnd 

somc:1imes e.'<proited people, ... In carrylng out its tre~ty ubljg~lions '~1th the 

Indian tribes the GO,'l'I1lmcnt is something more IhID a mere wnllacting party. 

Under (/ lmmmw and self imposed policy whf<ll! has fOllnd expITssicm in man . .I' 

ar.:.'!; of C<.Jngre:!$ and fr.mwraus dccisicIJS of Ii!!s Cowl, if ha~ clmrged ;1~'elf wiih 

"'RoBER'rDHRKHOl'BR,JR" ilmWIHTE MoJ;'SIND!J,N 115 (1918). 

'1J Su Slaey L. Leeds. B<V',."wIJlIf j'roJI, Blad"""" Etpaneling "f)'lbol Lmld Bases Ih"""gll lilt C.nmlim 0/ Fumr2 

fn(C"'''IUm'' Joint T"ltan~""', ~Q N.D. L. REV. 827. 831-32 (20U4). 

'" I'm: II tiSl Orl<:rminolLou ~~t:>. I'~ GI!1'CHEli, F~pllMl. lIlDTAl'Il..AW, .'''pro nD;o I, .1 204-05. 

,. 25 U.s..C. H 903_903 r. ~l "'"g. 15, 195~, c. S05, § 2. 01 S-... t. 511>, cod"lfied I" rdi!WCl! pari (II 18 u,s.c. * 1162. S"" (liSl> 2S U.S.C. ~ 1300\") (J=Ilel ~lvil provision). 

"316- U.s.l!6{194Z). 
17


517a6.eps

moral obligaliolls ojthe higlresl rt!sponslbility and lrusL lis conducl, as dixlo$ed 

in the acts ajlh(!!!l! !Vila represelll /! III dealings wilh Ute Indial/S, sft'Ttlldlhel'ejoro 

bs judged by Ihl! l>i(Jsf exacting fiduciary .!I{mrillros. Paymrml of funds at the 

rcque~t of a tribal cou,.,ejJ whil:h, to the knowledge of tile Govcmm~!:t officers 

charged wIth the acimmistratiEln of!ndilln affuir:;; and the disbursement oit funds to 

satisfY treaty obligatioo~. was compoSl:d ofrcprcoon!l\tives faithless to their own 

people ami without integrity would be a clear breadl of the Government's 

fiduciory obllgat!on.;~ 

While tribal trust breach olaims were occasionally succ6SSful. for the most part tribal efforts to 

chcllenge the federal govcmment'sadministrntion of tribal aSgels were not.3l 

U. Tlte Current Staw QftheTrusf Rl.'5ponslbility 

The $ef/-Dct;:rmimrtmn Em (197fJ-Prcscl/tJ 

In 1970, President Nixon's message to CouGI'(lSS announced II fiJndamen~1 shift in 

federal Indian policy - self-detennination.Jf The Message renounced the tennillll.tion policy, 

established that adherence to the federo.! trust n:sponsibillty would guide federal Indian polley, 

and propl)Scd II stru~ture to dramatically reduce feder~1 ~ontrol over trib;:s - by recognizing 

grcally incruasccl tribal ~ulh{)fity to l1l3nage alTrur5 on 6ei, I'(lservatiOlls us. a replacement for 

fede.-aI bmerlUcwlic controL Specifically, President Nixon VIr<lte: 

In place of policies which oscilime between the dredly extremes of forced 

tenninatlon and constant paternalism, we suggest II policy in which the Fedeml 

government and the Indian community play complementary roles. 

But most importantly, we have turned from th~ question of wh~lher the 

Federal govermnenl has a Tl.:spon~ibilily to Indians lu th!l qUllstion of hi,iW that 

rcsponsibili1y ~(lll b<'St be fulfillcd. We have concluded Ihal the Indiam \I'm get 

better progroms and Ih:l!; public monies willl.:e more effectively expended if the 

people who are most aw--eted by thew programs are responsible for oper<lting 

Ihcm:5 

TIle Ni:-:OJI Administration and later Administrations proposed and ()verSQW the adoption 

of numerow; 5tatute~ in which Congress finally allowed Indian tribes to take over federal fndian 

;;-c---~~~-~-

'" fit. ol296-'J7 (cmphOlll~ .dded). 

)l i?g_. T"o-fl~-1'on Indi,"" v. 1Jn1iod Slales, 348 U.S. 27 (1955), Sioux Trihc v. Unllod Slaws, 316 U.s. ~17 

(l?-!2). 

'" ~"g~ from the P'($idell< ()f:hc Ul1tt"~ Slllte8-Trnnsmltll"s- R.ecnmmond.tlons lOr lnd!~n Pn!1q, rUt. Doc. N(). 

J6J, ;}!III Co~!h2d. s=.. (197\1): 116 eMS. Re<:. 23258. >SId. 
18


517a7.eps

affairs prograID5.~ The various Self-Determination Acts include the Indian Self·Dotennination 

and Education Assistance Act" and the Native American Housing Assistance and SelfDeterminatinn Act.ll These Acts implement II federal_tribal relrrtionship first proposed by 

Interior Secretary Collier during the debates leadll\g up to the Indian ReorganiZation Act of 

1934.l9 Congrc8S also took steps to encourage triba: economic development with the enactment 

of statutes such as Ihe Indian Finnnce Act of 1974,40 the Indian Tribal Governmenl Tax Status 

Act of 1982:1 and the Indian Gaming Regulatory Act of 1938.4

:1 Congress enacted legislation 

supporting tribal law enforcement, the development of tribal courts, and perhaps the most 

controversial Indian affairs statnte in the ern, the Indian Child Welfare Act,ll requiring the 

transfer of Slate court cases involving Indian child cnstody to tribal courts. AppendiX 1 of this 

Statement includes a list of selected Congressional Aets adopted during the period of the federal 

self·determination policy. 

Thl! relationship between Indioo tribes and \~e [ederalllovernmenl is best described as a 

trust relationship, with the UnIted States acting as II trustee to tribal interests. The give and take 

of the in]st relationship often is und~ the surnce, out of the sight of courts and many 

policymakers.44 From the ViluLage point o[history, tbe 1970 Nixon Messagc did something novel 

by cmphusizing the !Lust responsibility, recognizing the Government's frequent conflicts of 

interest, and directing Executive officials to devise ways to be faithful to the trust responsibility 

and where feasible avoid conflints of in Ie rest. This C(Jueeption oftho trust responsibility has boon 

variously observed in subsequent Administrations over the past four decadl:S, but it hElli often 

been a significant force in Executive Branch policy D.nd no subsequent Administration hllS 

cxplicitlydeviated ITom il45 

Congress has generally adhered to the concepts of the trust rcspousibility in virtually all 

modern Indian Icgislalion - from 1971 with the Alaska Native Claims Settlement Act~~ to the 

"See generally I'hilip S. Doto,i" rh. £ro oj indllm S.!f·!hilormlna{/GII: ,j" Overviow, in INOIAN SaF-RU~": 

J'm .. \T·HAND ACCOUNTS or tND1AN·WIUrE REu..TIONS FRO~I ROO:SIrYUlT TO RE,\OAN 191 (K.IItl~-th R. Philp. cd. 

1986). 

" Pub 1.. 9:>-5J8, 88 Slat. 220J [197:;), cGrRjlwar25 U.S.C. § 450 ct seq. 

"Pub. 1.. 104-330, 110 Stal. 4017 (19%I,cadified m 25 U.S.c. § 4101 ~'l""q. 

" Si!e 11K 79U2., 73rd Cong., 2nd. Sess., Tit. I, § 4{i) [au!harioing Indillll 1ribCll "[t]o .. ,<:rei"" any o!h", IJUW""; noW 

M ", .. nft.r del'g.ted to t~o orne<> ~f1ndl'n Affolrll, o"any offi.l.t. Ihc .. nf, ... and to a,t in gonornl as u f,dorol 

agency in Inc adminig1ra(\on oflndi." Affairs .. :~, reprlmed or Vr:<E l)Sl.OR11o, JR., THr. INDIAN REORGAN1l.IoTION 

ACT: CONGR!lSSES A:<D Bl~LS 10 (200!). 

,0 Pub. 1,. ~3.2,)2, § 2, Apr. 12, 1914, 88 S13~ 77, 2S U.s.c. § 1451 01 seq. 

41 PLlb. 1,. 97473, Tille II, § 202(0),Jon. 14, t983, 96 Stnt. 2603, aotfljicd a:;amenrkd m 26 U.s.C. ~ 7B71. 

"Pub. 1,. 100-497, 101 SIO.I. 2461, (oalji"'" nl2S U.S.C. §§ 27~1 ~I Si!lJ. 

4J Pub. 1.. 95·608, § 2, Nov. 8, 1978,92 Stut. 3069, coaljicdaf25 U.S.C. § 1901 "I s'q. 

"llh.nk RcidClJalnbc,s .tld Dou&EndrosQn for lhigpoinl. 

'5 Sg., MC'Olo",nduln fur tho Roods of n.,oOU1lvo Dcp,.rtmcn\5 and Ag.notes (Nov. 5, 2009) (P""idont Db:lrn,I, 

ami/abl. (If hltn ~I\ ... ,"IV. whi ,.lIn"_,o. gnl'/tho .. r<" .... nlT!.<:¢ memo"," ~Uln _tr1ha I"oon,u Iut! on ... lgncd-prcsidcnl. J'or a 

lrumdry Ii,! of othe, adlninislrativ. mM.rlol, on tribat consult1tion in Ihe 1.!It sO\'<)",1 Mmlnl~ral1ons, ",c TI".om •• 

Sohtoss"" Ordors and P01lct., Re£"rdl<>g Co",uitntlon with Indian Tribes, ""l1ilable l11 

l!llJrlll, ww ",oh 1M<erl,,, iilo< ."omlcnn," 1t1Ptlll "I<>.<RcCon"" 1t%2Q",·lnd 10nTrl h •. hl m. 

'" PLLb. 1,. 91-203, 85 Srot. 6SS (D ••. IS, 197t), clJdlfled or 43 U.S.C. § t601 ~I ""'1. 
19


517a8.eps

present with water scttlcments,47 ami Ihe Tribal Law nOli Order AeL 48 TIlew have been no 

terminntion act~ or similar statutes for over 50 years. This history of Executive and 

Congressional voluntnry adherence to a trust relationship (whether it is designated and discussed 

under the framework or trust responsibility or not) is tile henrl of the fedeml_tribal relationship in 

modem times. 

TIll! Difficulty in Enforci"g the Trust Re!atiwrship 

However, what is most visible in the trust relationship are the cases involving tribal 

efforts to enforce the trust relationship. Trlbal-fedeml disagreements over the enforceable duties 

under the trust relationship likely will continue to generate significant litigation in the coming 

years. 

The Supreme Court has given definition to the federal trust responsibility in two cases 

dealing with Ihe government's liability for its management of Indian natural resources, United 

Siales v. Milchell 1 .:. and United Siaies v. MilchcflII.w The two cases involved a claim for 

money damages by members oJ the Quinault Tribe for federal mismanagement of (he timb<.:r on 

their allotments. In MiI(:h~III, the Court held that the allollee/; had not e~1ablished liability under 

the ~neml Allotment Aet, because it contemplated that "the "Hottec, and not the United States, 

WllS to manage the land." The Act "created only a limited trust relationship between the United 

States and the allottee that does not impose any duty upon the Govemment 10 mannge timber 

=urces.~l 

In Milci/cllI, the Court remanded the case to determine whether liability could be based 

on statutes other th~n the General Allotment Act. The Claims Court found an enforceable duty in 

the Indian timber munagement ~taLules and in Milchell lIthe Supreme Court agreed: 

In contrast to the bare trust created by the General Allotment Act, the statutes and 

regulations now before us clearly give the Federal Government full responsibility 

to manage Indian resources and land for the benefit of the Indians. They thereby 

establish a fiduciary relalionship and define Ihe contours of the United States' 

fiduciary responsibilities.51 

The Supreme Court has retreated frem many of the broader statements in Mi/chellll,5J 

but still utilizes the nnalytic stru~ture articuilltcd in tim! decision. For example, in Ullil!!d Srrwil v. 

" For 3 chon del"iliog lhe dozens of Congressionol1y-rnlified tndion w"ter riGnls s.ttlements, see OeTCfl~S. 

l'EDllML lNDlANL,\W,£lIpra note 1.1ll82S·Z9. 

"Pub. L. 111-2tl. Ti~o n, 124 81m. 2253 (Jul)·29, 2010j. 

"" 445 U.s. S3S (1980) . 

., 463 U.s. 206 (19R3). 

" Milc/",f/!, 445 U.S. nI542-43. 

'" ~6J U.S. 3(224. 

S> e.g., United St.t<>s v. Jic;u;ll" Ap.cJle Na\ion. 131 S. CL 2313. 2n2-23 (201t) ("The Govor"mon~ of,our.;c, is 

not Q private trustoo. TI,oulI" tl,. "'[~'""L stlItlllCS d~nomi"nt~ tho I'Ct"~cn,hip OCtw""n th" Govcmm<:nL ""d t"" 
20


517a9.eps

Whiff! MOlll1faill Apache Tribe,SIl the Court ~ffirmed a multi-million dollar judgmlmt in favor of 

the Tribe where the federal government harl promised to transfer ownership of several federal 

buildings on tlte reservatIon to the Trlbe, but Instead allowed the buildings to rot and decay 

before the transfer.S$ 

Most recently, the Supreme Court in United Slates V. Jicarilla Apache Nalioll/6 

suggested that the federal government's enforceable trust obligations could be limited to express 

Congressionnl statements accepting a trust obligation, while rcamnning the existence of a 

"general" trust: 

We do not question "the Undisputed existence of a general trust 

relationship between the United States and the Indian people." ... The 

Government, following ''a humune und self imposed policy ... has chnrged itself 

with moral obligatious of the highest responsibility and trust," ... obligations "to 

the fuIfil!ment of which the national tumor has been committed" .... Congress has 

e){pressed this policy in a series of statutes that have defined and redefined the 

trust relationship between the United States lind the Indian tribes. In some cases, 

Congress established only a limited tm~i relationship to serve a narrow purpOS<l. 

In other cases, we have found that particular "statutes and regulations ... 

elearly estabEs'h fiduciary obligations of the Government" in some areas .... Once 

federal law imposes such duties, the common law "could playa mlc."l7 

However, as Justice Sotomayor noted in her dissent, the real question in firture years is 

whether (and 10 what extent) the existence of the "general trust" has any import.5

& She 

concluded: 

But perhaps even more troubling than the majority's refusal 10 apply the 

fiduciary ",xception in lhis ease is its disregard of (lilT established precedents that 

affirm the ceutral role that cOlllluon-lnw trust principles play in defining the 

Government's fiduciary obligations to Indian tribes. By rejecting the Nation's 

claim on the ground that it rails to identiry a ~pedfic statutory right to the 

Indians a ''tru<t,'' ... IhallnlS!ls defined and governed by statlltes .. thor thon tho oomnmn tm .. ·. Se. Uniled:'~al.s v. 

NavojoNar;(JJ1. 537 U.S. 488, 506. 123 S.Ct. 1079, 155 L.Ed.2<I (it) (21]03) (Navajo I) ("[T)hc analysis mu,t min on 

~eoU10 rlght'''''''''llng or dUly-ImposIng smtmory or regulatory prescription,")."). 

5J7U.S. 465 (200J). 

~ BUI See Navajo Na/lon 1, 431 U.S. ~88 (",versing" S600 million Judgment "Smn,( tho go""rnmOflt fnr nlleged 

(rust violations under the Indian Mln'",II..aaslng Aot); Unltod State.' v. Nav.Jo Notion, 12~ S. C!. 1547 (2009) 

(Navajo II) (reversing. $600 mllllon judgment ngnin,\ tho government for olleged tru.t vinl.ticn, unW.T olher 

Si<llutOS). 

"IJIS.C1.:<:ll3. 

"rd. at 2n4-25 (<:italians omitted). 

" S"" id. at 1340 (Sotumayor, J., di"'eoting). 
21


517a10.eps

communications at Issue, the majority e:ffectiY~ly embraces !Ill approach espoused 

by prior dissen\E that rejects the role of common"law principles nltogelh~r in the 

Indian trust context. its decision to do so In a case invoivlng only a U!TOW 

el'identiary isstle is wholly unnecessary and, wmSll yet, risks fm1hcr diluting the 

Go.....:mrnllnt'S fiduciary oblilJiltior,s in Il m3~ner thllt Congll;l;s eknrly did oot 

intend nod fhat would inflict serious ha.nn 011 the alre!!dy-frayed. :c13!ionsltlp 

between the United States and Indian tribes."" 

The Impact of tile £-.:ecrdive Bmndl's COllfllcts of Jnti!N~·t on Supreme Court LifiJ;utiu(l 

Jicarilla Apat'he Na/iQiJ is merely onc case ill a IOllg line of cases and agency decisions 

Involving conflicts. The Deptlrlments of Justice ana Interior routinely lITe forced to Il'..ake 

decisions that otherwiSl:! constitute a serious conflict ofinlerest between their duties to U1e redorel 

go\'OmmCllt and ttl Indiall tribcs.~~ SlIits such as the long-rulmil.g Cobeil litigation exposed tile 

weaknesses of the Exe.::utlve branch in administe..-ingthe \mstrcspcnslDilltr. 

Recent important E.:wcutive branch conflicts include the following: 

• The conflil!t between tile D<:portmcllt of Interior and the NntionaI Labor 

Relntions Board over whether the Na.t1onal Labor Relations Act, which is 

silent as 10 Indian tribes as emplay.;:rs, applb to tribll[ casino 

e..:nploymenl.61 

• The confl.ict wilbit:. 1M Department cflntcrlor betwl:C!J tribal interests in 

S!!GrW $it!'-s at the San Frnnds-<:o Peaks nnd pdv~te bU51= interests 

making artificial. snow tainted by fecal !mllu:!".~' 

• The contlict within tbe Department of Interior (and perhaps with the 

Th:ipartmcnt of JU51100) over adminmering the Bllid and Ooldl!n &!!,le 

Pr"te~li()" A¢l in accordance with the American Indian RellgiQUS Fr~edom 

" T,;~e of lndilm(; v. ,. 
22


517a11.eps

ACI, th(: Rellgious Freedom Restoration Act, and the Natiollal 

Envircnmcrrt1\1 Policy Act.63 

HQ'lvever, it should be noted th~[ 1llc federal government's decision-making !'<leord In 

aCling as the truswe fo: tribal intw:sls si .. .ce 1970 befure the Supreme Court is cxo:ptirmal. 

Appmdix 2 of tbb: Sta1ement irsts all of the Supre.r,e Court cases in which the Ur:i'.ed Slattll:< 

has appeared an amkm;. [n the vast majority of cast:":l, the government steps up to support Ihe 

tribal inttmzw in question, Appendix 3 of thi~ Statement lists selected eases, usually relating to 

trealy rights, where 'h~ United States has cither brought suit on behalf or ;ntel'\'~'1100 in favor of 

tribal intcraslS. Of course, (here are cases not Included in these lists where the gOVernmcnt chose 

not to participate wh~rc its participation CQuld have been helpful to tribal ;nwrests, 

There are also many S1.lpreme Court cases where the f~dcrlll government must defend 

against Indian ortdbal trUHt bread! claims, as well as Fifth AlIlendm~nt tal<:ings clalms and other 

civil claims. Many of lh= cases arc Estell in Appcn.lix 4 of tbis Stu~meat. These = 

highlight the unusual char.!Cttlr of the conflicts facw by the government. b fuct, 13.1t mmuh. the 

government argued twa Indian law C3ses before the SUpreme Court o\'er twa weeks. In O1Ie case, 

the government vigorously sought to restrict the a.bility orIlldian tribes to seek mon(1)' damages 

agaimt it (Salazar 1'. Ramah Nm'{lja Chapter) and, the next week, the government sought to 

dafcnd its decision (0 take land llfto trust for an IndlM tribe (Salazar v. Patcha!f), Thco~ [!fe not 

direcl conflicts, 10 be $1Irf'., !;luI it connot be lost upon the S.upreme Court that the Uldtcd Stntes 

Iilerally souCht an ~~pallslve view ofthe trust relationship a more week after sI'Cking to restdct 

,. 

k a result of these inhereut and repeat...~ secles of confliCls, the ability of IllC United 

Slates to act lIS a tmstco 011 behalf oftriba! bencficiaries is ~relyundercut. The government's 

success rale in front of the Supreme Cour! normillly is astoundingly high, and Ihat SllCCt!b'S rale 

Clxtends to the caS(l$ where tile government opposes tribal interests. When the government fllvon; 

tribal interests, the Court treats thc govcrnmcntjust like any other private party, and offers the 

govomtment 110 dejerenrJl! whllls06wr. In met, a recent study of federal agency suc~ess rates in 

Ihe fedel1l1 CO\lrts. 5Ugg~3tli thai the Bureau of Indian Affuirs receives almost no deference from 

f<!deral courts and succc.:ds before the Court barely half the time." The government's SIlCCCSS 

rata in Illdian aff~in1 cese3 is 5;.6%, whereas the ovc:rol! agency Will rate i3 68.&%. 

'" C"mpur~ Bal~ wuI O~Wcn Eoglc Protect;O!l Ae!, 16 V.s,C. § (168 oj ""G. willi Amori""" lnduln Re1iS;ous 

Pr<;<:dom Restoration Act, 41 U.s.C. § 1996); Roligious Freedom Res101'llIk)n Aol,42 V.S.C. § ~OOObb (RfRA); WId 

l'Im;"",! Ilnvi",nmontnl Ptoliey Acl, 42 U.s.C. § 4321 u.oq. &0 Unlwt St.1OSV. Wilgus, $3~ 1'.3d 1274(tll\h Cir. 

20 III {b.lancing tho !bder:d gnV«mmenl'. compelling inte''''l h, protecting '!lglos with rcl1gio~s horll>m nr nnlltndio.ns); United Store, v. l'tld!l.j', S25 F.3d 93! (I nth Cir, 2008) (.ejcoting chnUC"8C 10 convictleu under r,aglQ Act i'l American Irnliun UMW RFRA). 

fu WiiH.m N. E>krioJ><" 1r. & Lu .... <:n !l Bacf. 'l1r<: CMlitltIl!IIl~.f fJ!l}!J-=e; Sltpre!l!6 C".trl Tr'I1I",,-71I oj 

AiU"""SiGtlIlory l!JI~pnlal!tmSf"G'" Cb.."VfIlG 10 H"",d/:n, 9S 000,l..1- lOB, 114S (2008). 
23


517a12.eps

Consider, far example, the New York Indian land clllims. In 2005, the Supreme COllrt 

decided the third in i! line of (lases involving the claims of the Oneida Indi:m Nation - eil)' of 

Sherrill v. Ondda Indian Nalion of New YOJ'k.~ In two prior ClI~es, the United States and the 

Oneida Indian Nation had been the plaintiffs in the land claims brought against the State orNcw 

York and varions local governmental subdivisions, establishing a federal ~ommon law ~ause of 

a~tion to assert land clnims ill the first case IUld winning on thn morits orlOO land claims in the 

sooond case. 16 

Shel'rlfl involved the reacquisition of tile land in fee by the Oneida Indian Nation within 

its reservation boundaries. Under common law principles of federal Indian law, the Treaty of 

Canooaigua, 3nd tile federal Trade und Intercourse Act, the Nation asserted that it was not 

required to pay property taxes to the loealjurisdictions for this land. The Second Circuit agre~ 

with the Nation on this theory, and the City of Sherrill sought certiorari to review the decision. 

The United Stotes was not a plllty to the lower court proceedinGS, but the Conference requested 

the views of the Solicitor General (SG). The SG opined that the petition should be denied, but 

the Courl Granted cert anyway. Then, the SG participated as amicus and spllllime during oral 

argument with the Oneida Indian Nation's counsel, but the Court ruled against the Nation on Ih~ 

merits. The Court ignored the legal theories the parties briefed altogether, instead deciding 

aGainst the Nation 011 grounds raised only by amici supporting the petitioner - the equitable 

defenses of laches, acquicS\:enec, and impossibility.61 Moreover, the Court applied those 

defenses not to the Nation, but to the United States Itself as trustee for the tribe. The Court's 

broad langu~ge strongly implied that these equitable defenses would henceforth apply to any 

Indian clnim not dircetly tied to indian trealy rights. 

Shortly lifter the Court issued the Sh«rrifJ decision, the Second Circuit dismissed the 

entire bevy of land claims asserted by the Cayuga Indian Nation cfNew York, a tribe similarly 

situated to the Oneida Indian Nation, which had long relied upon the same legal theories that had 

been successful for the Oneidas.6B l11e United States, already a party to Ihe Cayuga Indinn 

N~lion's land claims, brought a petition for certiorari. The Court denied the petition without 

commenL oW Similarly, alter the Second Circuil dismiss~d the land ci3imS brought by Oneida 

[ndian Nation in 20IO,7Il the SG petitioned the Supreme Court for rcview, only 10 be denied onee 

again (Ihis timo over dissents from Justices Sotomayor and Ginsburg).71 The New York land 

OJ 544 U.S. 197 (2005) • 

.. O~oldB Indl~n NAtion of N.Y. v. Onotda. County, N.Y~ 414 U.S. 561 (1974) (Oneida I); Oneid. County, N.Y. v. On. ida Indi<lll Nalion of N.Y., 410 U.S.:226 (t9SS) (Oncidoll), 

., So. Kmhr,m E. Fort, T/u;New ~""' .. Cr~Q(jnIfTilf. W!rerti NGn. E:r.i.led, 16 G.O.MIISON L.H.Ev. 357 (2009) . 

.. 413 F.Jd2M (2" Cir. 2005) . 

.., So" Unitod Stnlcov. POlokl, 547 U.S. 1128 (:2006) !,No. 05.$'18): CAYU,gQ lnoian NuI;"n urN.Y. v. r.wkl, S47 u.s. 

I 12R (200G) (No. 05-982). See Kmhryn E. Fort. Dlsmpliun und {mpo>Sihiliry: Th~ Now LlIf:hutmd 1/", Unforlwmne 

R.s~IIItI~" ciflioa MrxiIJl1Ifrcqlfo/.wmlCla;ms. 11 WYo. L.Rl;v. 315 (2011) . .., See Onel0. IndJ.n N.tion oFN.Y. v. Oneida County, N.Y., 6111'.3d 114 (2d Gir. 2010). 

11 Set! Unit,d 51.1e1< v. New York, 1:12 S. 0. ~~2 (2011) !,N~. 10-1404); OMid. lodi"" Nmion of N.Y. v. Oneida 

County, N.Y ~ 1325. CL 452 (2011)(No. 10.(420). 
24


517a13.eps

claims c:ascs arc the most remarkable instanccs where the interests of the Unil\ld Slates, 

coinciding with tribal illte.l·t':Sts, fuilcd spcctEH:ularly befure lhe Supreme Court. USlmlly ill c~S\:s 

illvolving tribal intcfcWl where the federal govem1r.c\,\t sides wlLi the tribes, it is the tribal 

interests that have-the m\)$t to lose. 

Ancth()l' exllmplc oftl!e decllning fortum:~ ot"the fedeml government ooforelhe Supron:e 

Cuur! i~ in the tribal jmistliction CIl5CS. Despite tIle support of the SO in several cares, tribal 

in1.tlrest~ have not been IIbl~ to persuade the SUprt::nIC Court that nonmembers can b~ subject to 

tribal regulatory or ai.ljudicatory authority.n These cases are explicitly questions of federal 

commonlnw wilh nary an Act ofCollgre~~ applicable:' Congress could easily fl" this question, 

but proposals have not gone far. 

Some of thes~ enses are he~rtbre3kjng. In 2008, the Supreme Court drx;ided Plaim 

Cummen;e Balik 1'. JAmg Family Land & Cattle CO.74 Once agaln" the SO participated as amicus 

fllvcrmg (Iro tribal interests and shared oral argument time, ihls time lii'-!lUIng that the fcd(Jral 

government's pra.Cik:~ of guaranteeing: l<mns to tribal businesses provid~ e SIlffieient federal 

interest to [uvor Iribal court jurisdiction over a non-lndian-owncd bank that had forl;'CI~d (Wer 

Indian lands in H recially discriminrrtory manner. Tho Supreme Court did ntlt share 11m SG's 

vicws on the signilie(l.l1C:e the federal loan guarantee program, and found that the CheY(:IInc River 

Sioux Tribe hat.! no jurisdiction overthe hank. 

Anot~r major blow to both the- United States !l..')d their tribal trustees was Drtpt. of 

lmerior v. Klalllulh Wajer UiNJJ'8 Protective As.m.1l ·There, the gO~'llmment and th<: Klamath 

Tribe i.:. Oregon hoc! Shared doc:.nnen.ts ~pared m anticipation [;f litigatkn ever the limited 

water resources of too Klrunath River. Opponents oithe tribe sou~ht to FOIA these document;, 

~nd the gc~mment rejected the claim because they were preparw for litigation purposes. The 

Supreme Court broodly interpreted the Freedom Dflnfurmation Act and narrowly ~()!1$trued the 

trust relationship between the government ond tribe~ 10 ~je~t the government's rel\S<II1i1Jg. 

PGrhaps the most diMuptive case in modem federal Indian law is Caret!:rl v. SU/(I;ror,'ii in 

which the Supreme Court held that the Department of Interior cannot take land into trust for 

£r,ciinn tribes net "under federal supervision" in 1934. There, Lie SG argued strcnu\lUsly in favor 

of lnterior's 70_p!us_year interpretation of the Ind!:,,') Roor!l<lnizalion Act:, the focerol 

government's pnsilio:! as tru5<l:e for Indian tribes, and the his,Qfical pllrpos($ Oflhe Act, only ttl 

be bluntly ~ected by the SUprl:rne Court, &--1. Tile d!:eision is incrC{[ibly disror~ive, as :hi:s 

n E.&, Ncl'llll~ v. Hick>,:>33 U.s. 353 (2001); Stnle v. 1\-1 Contrao;tOlS, 5ZO u.s. 'In {1991J; MMtoo~ Y. Upil"" 

SI<I1OS, 450 U.S. 544 (1981). 

"SOB g~""rt1liy N~tion:1l )'~nn.'" Uo;on In •. Co •. v. CrowTdL. "nndioru. 471 U.S. 845 (l~8$); low.! Mul~.lll\S. 

CO. Y. Laplante. 400 U.s. 9 (1987}. 

" 123 S. Ct. 2709 (200S). '" '32 U.S. i (2001). 

'" !l9 S.C~ Hl58 (W09)< 
25


517a14.eps

Committee knoW~.71 A decision against the government in Salazar 1'. Palchak would allow 

individuals to challenge Interior Department trust land acquisitions under the Administrative 

ProccduJ'C.'i Act in circumvention of the federal immunity barrier cxprcssw in the Quiet Title 

Ace~ 

m. The Future of the Trust Responsibility 

Congress has plenary amhority in the exercise orits trust rtlsponsibility. Since 1970, Wilh 

only limited and arguable exceptions, Congress has spoken strongly in favor of tribal selfdetermination WId the pres.:rvation oftrcaty rights ami other Indian rights. The E1(ccntivc branch 

also has been supportive, but the federal agencies still find themselves mired in difficult confliots 

on occasion. The Supreme Court, however, currently is not supportive of !ribal interests, as the 

rconlls oflhe Indian cases going back two or Ihroo decades attests. 

Congress is in th~ enviable position of reasserting itself as the primary policymaking 

entity in the federal government. While there likely arc morc specific proposals on the qucstion 

of the trust responsibility, 8 clear restatement of the general trust responsibility of the federal 

government to Indian nations could be an important step. Such a statement could help to reorient 

the agencies and the judiciary toward a stronger acknowledgment ofCongrcss's primacy as lcad 

policymaker in Indian affairs. 

Congress can work to resolve many of the k-ey questions in the trust relationship -

namely, the conflicts of interest between the various federal agencies hy recognition of the 

provisions of the United Nations De(:laration as a policy matter. Congress should have no trouble 

Lying a restalement of the federal government's general trust responsibility to multiple noncontroversial provisions or the United Nations Declaration on the Rights of Indigenous Peoples. 

Many illustrative provisions are reprinted iu Appmldil( 5 of this Statelllcnt. 

Mllgwclcll. 

" See The Carcieri Crt, Is: Thn RJpplo E!l'oot on Jobs, EcQnomlo Dov"lopnlCUl: and l'ublio Safety in Indlo.n Country, 

Ove.,lght Hoarlng ooRllo tho S"n~'" Commitl,. On Indian AfToirs(Ocl. B. ZOII). 

"SlOe Potclwk v. Sa!ozar, 6JZ F.3d 102 (D.C. Cir.).cerJ. g""".<I, 132 S. Ct. US (2011). 
26

Appendix 1—Selected Acts of Congress in Indian Affairs Since 1970

American Indian Probate Reform Act of 2004

American Indian Religious Freedom Act of 1978

American Indian Trust Fund Management Reform Act 1994

Coal Leasing Amendments 2005

‘‘Duro Fix’’ (1991 Amendments to the Indian Civil Rights Act) 

Indian Arts and Crafts Act of 1990

Amendments 2011

Indian Dams Safety Act 1994

Indian Education Act 1972

Indian Elementary and Secondary School Assistance Act 1970

Indian Employment, Training, and Related Services Demonstration Act 2000

Technical Corrections 2000

Indian Environmental Regulatory Enhancement Act of 1990

Indian Environmental General Assistance Program Act 1977

1992 amendments 

1996 amendments 

Indian Financing Act of 1974

1984 amendments 

1988 amendments 

2002 amendments 

Indian Health Care Improvement Act 1976

1992 amendments to the Indian Health Care Improvement Act extended 

the Title III self-governance demonstration to the IHS and IHS programs. 

Technical corrections 1996

Tribal Self-Governance Amendments of 2000–Title V of the Act, making 

tribal self-governance permanent within the IHS 

The amendments of 2000 also added Title VI to the Act, requiring that the 

Secretary of HHS ‘‘conduct a study to determine the feasibility of a tribal 

self-governance demonstration project for appropriate programs, services, 

functions, and activities (or portions thereof) of the agency [HHS].’’ This 

Title applies to non-IHS programs administered by the Department. Title 

VI also delineates what the Secretary must consider in conducting the 

study and requires a joint federal/tribal stakeholder consultation process. 

Indian Gaming Regulatory Act of 1988

Indian Land Consolidation Act of 1983

Indian Mineral Development Act of 1982

Indian Self-Determination and Education Assistance Act 

Tribal Self-Governance Demonstration Project Act 1991

In 1994, Congress amended the Act to create a permanent self-governance 

authority in BIA. 

1996 amendments to allow tribes to take over control and management of 

programs in the DOI outside the BIA. 

Indian Tribal Economic Development and Contract Encouragement Act of 2000

Indian Tribal Energy Development and Self Determination Act 2005

Indian Tribal Government Tax Status Act of 1982

Native American Housing Assistance and Self Determination Act of 1988

Native American Housing Assistance and Self Determination Reauthorization 2002

National Indian Forest Resources Management Act 1990

Omnibus Indian Advancement Act 2000

Tribal Law and Order Act of 2011

Appendix 2—Supreme Court Cases Since 1970: Federal Government’s

Position 

Supporting Tribal Interests as Amicus 

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) 

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) 

McClanahan v. Arizona State Tax Commission, 411 U.S. 154 (1973) 

Tonasket v. Washington, 411 U.S. 451 (1973) (per curiam) 

Mattz v. Arnett, 412 U.S. 481 (1973) 

Puyallup Tribe, Inc. v. Dept. of Game, 414 U.S. 44 (1973) 

County of Oneida, N.Y. v. Oneida Indian Nation of N.Y., 414 U.S. 661 (1974) 

Antoine v. Washington, 420 U.S. 194 (1975) 

DeCoteau v. District Court, 420 U.S. 424 (1975) 

Bryan v. Itasca County, 426 U.S. 373 (1976) 

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) 

27

* Nevada involved a federal conflict of interested in which the Supreme Court relieved the government of its trust obligations to Indian tribes where an Act of Congress authorizes the government to act to the detriment of the tribal trust beneficiary. See Nevada, 463 U.S. at 128 (‘‘The 

Continued

Puyallup Tribe, Inc. v. Dept. of Game, 433 U.S. 165 (1977) 

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) 

Washington v. Yakima Indian Nation, 439 U.S. 463 (1979) 

Idaho ex rel. Evans v. Oregon and Washington, 444 U.S. 380 (1980) 

Washington v. Colville Confederated Tribes, 447 U.S. 134 (1980) 

Central Machinery Co. v. Arizona State Tax Commission, 448 U.S. 160 (1980) 

White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) 

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) 

Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 

(1982) 

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) 

Rice v. Rehner, 463 U.S. 713 (1983) 

Solem v. Bartlett, 465 U.S. 463 (1984) 

Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) 

Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985) 

National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) 

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) 

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986) 

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) 

Duro v. Reina, 490 U.S. 676 (1990) 

Oklahoma Tax Commission v. Citizen Potawatomi, 498 U.S. 505 (1991) 

County of Yakima v. Yakima Indian Nation, 502 U.S. 251 (1992) 

Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993) 

South Dakota v. Bourland, 508 U.S. 679 (1993) 

Hagen v. Utah, 510 U.S. 399 (1994) 

Dept. of Taxation and Finance v. Milhelm Attea, 512 U.S. 61 (1994) 

Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995) 

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) 

Strate v. A–1 Contractors, 520 U.S. 438 (1997) 

South Dakota v. Yankton Sioux Tribe, 522 U.S. 322 (1998) 

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751(1998) 

Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998) 

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) 

C&L Enterprises v. Citizen Potawatomi, 532 U.S. 411 (2001) 

Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001) 

Nevada v. Hicks, 533 U.S. 353 (2001) 

Inyo County v. Paiute-Shoshone Indians of the Bishop Indian Colony, 538 U.S. 

701 (2003) 

Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005) 

Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005) 

Plains Commerce Bank v. Long Family Land and Cattle Co., 556 U.S. 316 (2008) 

Opposing Tribal Interests as Amicus 

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) 

Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) 

Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987) 

Arizona Dept. of Revenue v. Blaze Construction Co., 526 U.S. 32 (1999) 

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999) 

South Florida Water Mgmt. Dist. v. Miccosukee Tribe of Florida, 541 U.S. 95 

(2004) 

Appendix 3—Selected Cases in Which the United States Served as Trustee 

to Tribal Interests 

Colorado River Conservation Dist. v. United States, 424 U.S. 800 (1976) 

Cappaert v. United States, 426 U.S. 128 (1976) 

Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979) 

Washington v. Washington State Commercial Passenger Fishing Vessel Assoc., 

443 U.S. 658 (1979) 

United States v. Clarke, 445 U.S. 253 (1980) 

Andrus v. Glover Construction Co., 446 U.S. 608 (1980) 

Montana v. United States, 450 U.S. 544 (1981) 

Arizona v. California, 460 U.S. 605 (1983) 

Nevada v. United States, 463 U.S. 110 (1983) * 

28

Government does not ‘compromise’ its obligation to one interest that Congress obliges it to represent by the mere fact that it simultaneously performs another task for another interest that 

Congress has obligated it by statute to do.’’). 

Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545 (1983) 

Escondio Mutual Water Co. v. La Jolla Indians, 466 U.S. 765 (1984) 

Oneida Indian Nation of N.Y. v. Oneida County, N.Y., 470 U.S. 226 (1985) 

Wyoming v. United States, 492 U.S. 408 (1990) 

Montana v. Crow Tribe of Indians, 523 U.S. 696 (1998) 

Arizona v. California, 530 U.S. 392 (2000) 

Dept. of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001) 

Idaho v. United States, 533 U.S. 262 (2001) 

United States v. Lara, 541 U.S. 191 (2004) 

Carcieri v. Salazar, 555 U.S. 379 (2008) 

Salazar v. Patchak, ll U.S. ll (2012) (pending) 

Appendix 4—Selected Cases in Which the United States Defended against 

Tribal or Indian Trust Breach or Other Claims 

United States v. Southern Ute Indians, 402 U.S. 159 (1971) 

Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972) 

United States v. Jim, 409 U.S. 80 (1972) 

United States v. Mason, 412 U.S. 391 (1973) 

Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977) 

United States v. Mitchell, 445 U.S. 535 (1980) 

United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) 

United States v. Mitchell, 463 U.S. 206 (1983) 

United States v. Dann, 470 U.S. 39 (1985) 

United States v. Mottaz, 476 U.S. 834 (1986) 

United States v. Cherokee Nation, 480 U.S. 700 (1987) 

Hodel v. Irving, 481 U.S. 704 (1987) 

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) 

Lincoln v. Vigil, 508 U.S. 182 (1993) 

Babbitt v. Youpee, 519 U.S. 234 (1997) 

Chickasaw Nation v. United States, 534 U.S. 84 (2001) 

United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) 

United States v. Navajo Nation, 537 U.S. 488 (2003) 

Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005) 

United States v. Navajo Nation, 556 U.S. 287 (2009) 

Appendix 5—Selected Provisions of the United Nations Declarations on the 

Rights of Indigenous Peoples 

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and 

from their cultures, spiritual traditions, histories and philosophies, especially their 

rights to their lands, territories and resources, 

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right 

to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. 

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to 

participate fully, if they so choose, in the political, economic, social and cultural life 

of the State. 

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced 

assimilation or destruction of their culture. 

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity 

as distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, 

territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

29

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 11

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, 

present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing 

arts and literature. 

2. States shall provide redress through effective mechanisms, which may include 

restitution, developed in conjunction with indigenous peoples, with respect to their 

cultural, intellectual, religious and spiritual property taken without their free, prior 

and informed consent or in violation of their laws, traditions and customs. 

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, 

prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. 

Article 20

1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own 

means of subsistence and development, and to engage freely in all their traditional 

and other economic activities. 

2. Indigenous peoples deprived of their means of subsistence and development are 

entitled to just and fair redress. 

Article 23

Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have 

the right to be actively involved in developing and determining health, housing and 

other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions. 

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive 

spiritual relationship with their traditionally owned or otherwise occupied and used 

lands, territories, waters and coastal seas and other resources and to uphold their 

responsibilities to future generations in this regard. 

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which 

they have traditionally owned, occupied or otherwise used or acquired. 

2. Indigenous peoples have the right to own, use, develop and control the lands, 

territories and resources that they possess by reason of traditional ownership or 

other traditional occupation or use, as well as those which they have otherwise acquired. 

3. States shall give legal recognition and protection to these lands, territories and 

resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. 

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, 

to recognize and adjudicate the rights of indigenous peoples pertaining to their 

lands, territories and resources, including those which were traditionally owned or 

otherwise occupied or used. Indigenous peoples shall have the right to participate 

in this process. 

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the 

lands, territories and resources which they have traditionally owned or otherwise 

occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 

2. Unless otherwise freely agreed upon by the peoples concerned, compensation 

shall take the form of lands, territories and resources equal in quality, size and 

legal status or of monetary compensation or other appropriate redress. 

30

Article 29

1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. 

States shall establish and implement assistance programmes for indigenous peoples 

for such conservation and protection, without discrimination. 

2. States shall take effective measures to ensure that no storage or disposal of 

hazardous materials shall take place in the lands or territories of indigenous peoples 

without their free, prior and informed consent. 

3. States shall also take effective measures to ensure, as needed, that programmes 

for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented. 

Article 32

1. Indigenous peoples have the right to determine and develop priorities and 

strategies for the development or use of their lands or territories and other resources. 

2. States shall consult and cooperate in good faith with the indigenous peoples 

concerned through their own representative institutions in order to obtain their free 

and informed consent prior to the approval of any project affecting their lands or 

territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 

3. States shall provide effective mechanisms for just and fair redress for any such 

activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. 

Article 40

Indigenous peoples have the right to access to and prompt decision through just 

and fair procedures for the resolution of conflicts and disputes with States or other 

parties, as well as to effective remedies for all infringements of their individual and 

collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international 

human rights.

The CHAIRMAN. Thank you very much, Mr. Fletcher. 

Mr. REY-BEAR. please proceed with your testimony. 

STATEMENT OF DANIEL REY–BEAR, PARTNER, NORDHAUS 

LAW FIRM LLP 

Mr. REY-BEAR. Chairman, Vice Chairman, Members of the Committee, thank you all for very much for paying attention to the important issues that are presented here. Thank you, Senator Udall, 

for your kind introduction. 

This hearing presents basically three questions. What is the 

trust responsibility? What is the problem, if any? And what, if anything, should be done about it? 

In this, I am guided by the recognition that if there is no trust 

responsibility or no meaningful trust responsibility, little else matters. So because of this, I am addressing foundational issues but 

not also important policy issues that flow from them, for example, 

regarding the Carcieri fix, energy resource development, tax policy, 

the HEARTH Act, facts and so forth. 

So, what are the foundational principles? One, the trust responsibility, as noted at the outset, is founded on settled international 

law. The United States necessarily assumed meaningful fiduciary 

duties over Indian Tribes, regarding Indian Tribes, which remain 

sovereign. Second, Tribes fully bought and paid for meaningful, ongoing trust responsibility via land cessions and peace. Third, strict 

‘‘fiduciary trust’’ duties, in the words of the Department of Interior, 

extend beyond express statutory and regulatory mandates because 

that is simply the nature of the relationship. 

31

And finally, while the relationship has sometimes been described 

as a guardianship, it properly should not be. But even it if were, 

that merely supports self-determination of Tribes as recognized by 

Congress repeatedly, and in the United Nations Declaration on the 

Rights of Indigenous Peoples. 

So, what is the problem regarding these foundational issues? 

Well, the problem is that in Indian trust cases, where Tribes seek 

to enforce the responsibility, that the Executive Branch has repeatedly misrepresented facts and law in efforts to avoid liability. This 

is not simply an issue that comes up in these cases, but is an issue 

that undermines Federal and Tribal working relationships that 

should be more aligned. 

Just to give a few examples. No fewer than seven times Federal 

courts have expressly rejected the argument by the Executive 

Branch that there are no fiduciary duties whatsoever beyond express statutory and regulatory mandates. No fewer than 15 times 

have Federal courts expressly rejected the Federal argument that 

an arbitrary and capricious standard of care applies, instead of 

strict fiduciary duties. 

And in the Navajo Nation case and in the Jicarilla Apache Nation case, two recent cases by the Supreme Court, the United 

States misrepresented their own regulations, their own established 

policy, in order to achieve a desired result. 

So, what is the solution? In essence, it is to reaffirm the full 

meaning of the trust responsibility. As happened previously with 

the Cobell litigation, the fact that there is pending litigation does 

not preclude meaningful Congressional oversight. 

As noted already by another speaker, first and foremost Tribes 

themselves must be consulted. It is also notable that there is the 

pending Secretarial Commission on Indian Trust Administration 

and Reform. Pending such consultation and such input from the 

Commission, I can only offer a few preliminary suggestions for the 

Committee in terms of oversight to the Executive Branch. 

First, the Executive Branch must stop disregarding history and 

express Congressional directions in denying that meaningful fiduciary duties exist. As a related matter, the Executive Branch must 

stop asserting that an arbitrary and capricious standard applies 

rather than strict fiduciary duties. 

Second, the Executive Branch must acknowledge that the trust 

responsibility supports, and does not conflict, with self-determination. 

Finally, for situations where there are conflicts of interest, because they can in fact happen, because Congress indeed does impose them sometimes, for example, in the situation with the NRLB 

and San Francisco Peaks, I recommend re-establishing the practice 

of split briefing so that at least some part of the Executive Branch 

can adhere to the trust responsibility. 

In sum, I simply ask that the Executive Branch consistently, as 

it does most of the time, respect the foundation and restore the 

honor to defending the trust responsibility. 

I would be happy to take any questions. 

[The prepared statement of Mr. Rey-Bear follows:]

32

PREPARED STATEMENT OF DANIEL REY-BEAR, PARTNER, NORDHAUS LAW FIRM LLP


517b1.eps

Mr. Chainnan and rnombors ofthe Comminee, thank you for the opportunity to testll)" on 

thi~ important topic. I am a partner in Albuquerque, New Mexico, at Nordhaus Law Firm, LLP, 

0110 oflllo oldcg( law fin'll$ in tlle country ,ilat is dedicated to repr=nting India., trioo:>. I a100 

am an Adjunct ProfessQr at University of New Mexico Law School, and have lx:en certified 11$ ~ 

Sp~dalist in Federa! Tndian Law by the New M<:xico Soard ofLclJa1 Spcciali~iM. 

O~r {h~ last fifteen years, I and others at my law firm have represented several tribes 

with substantial brooch oftruS! claims agninsltile United States government. for II. dozen years, 

I served as co-counsel in the $600 million Navajo ooal lease approval case thaI was decided 

twice by the Supr~me Court. Navajo Nation '1'. United Simes, 46 Fed. Cl. 217 (2000), rev'd, 263 

F.3d 1325 (Fed Cir. 2001), /'e1J'd, 531 U.S. 488 (2003), Qn renmnd, 341 F.3d JJ27 (Fed. Cir. 

2003), on remand, 68 F~'<1. Cl. 305 {2005}, rw'd, 501 F.3d 1327 (Fed. Cir. 2007), rev'd, 129 

S.Ct. 1541 (2009). in additicon, since 2002, I have served as co·counsel in three of the largest 

slill-penrli!t~ tribal breru:h of trust CMes, rcsr;ectiveJy brought by Lie Jit:llrilla AFach~ Nation 

(t1llti12®8), the Pllcb!" of[.aguJla (to :be present), and the: N<l-vajtl NatiOii (sin~ 2OC.rs). 

All these cases have prese.nred issues relev.mt 10 loday's beming. For mtillllp!e, ill these 

cases, the Ilxecutive Branch h~_s argued among Olher thinES that the presiding court dll~ not have 

IItlthority to require the United States to preserve relevllilt evidence, contrary to positkms it took 

in two prior case:;. Pueblo of Laguna v. Ullitcd Stoles, 60 Ped. CI. 133, 135-37 (2004). It ~tso 

has argued for an absolute privilege again~t tribes re£arding their own minerui development 

infonnation despite stltutory language, prior loss un the issue, and n contrary prior position. 

Jk:uri/la Apache Nalion v. United States C'Jiearilla If'), 60 Fed. CL 611, 613·14 (20tH-). Il also 

hIlS ar£ucu that delay of dis;.:()VCt)· in Indian trust mismanagement -cases will nol harm triOOs. 

J[carilia Ap{lCllI! N<lfirm v. Untted SlalCS ("Jtcarllla V',), 91 F~:J. Cl. 489, 495-% (201O). And 

pdmps moot relevant j\j.l/'e, the Executive Bra.'lcn h:lS arg;re<l that the United Stales has no dilly 

to tribes beyond ,hose m;:press!y stated in statutes O£ reg:.ilalions-all ugument thM previously 

had been expressly rejected by federal courts at least six limcs-llfld that the United States has no 

duty to even attempt te m!lximize income for Indian trust funds, contrary to express terms of the 

1994 Indian Trust P,lfld MUllagemenl Reform Act, the Department of the Interior's own 

mandatory Dopartment Malltlat, und governing court decisions. Jlrorilla Apache NaliQIl v. 

Unil«d Stale.'J (".licarII/o Vllf'), 100 Fed. Cl. 726, 731·38 (2011). Fllrlhor di$<lu$sion of the 

Supreme Court decisions in the Jicarilla and Navl\io coal cases will be provided below. 

ThIs hearing essenllally poses three questions: What is the federallrust responsibility to 

Indian tribes, what is tire lli.:I:CUUVl: Branch dcing regardi;lg fummn.g that rcsron:;iblJi:;,' which 

wammts ecnB~ssicmtl oversight, and what, if :mytrung, should Con&l'\:sa do abont the latter to 

r-t::;pcct the fcrmer. 1 will address .;:a.;:h mthcse in tum. Also. surulllntial cil3tillns am provi:led 

hero to confirm the b;lses for all statements made. 
33


517b2.eps

The Basis, Nature, and &ope of the Tru~t Responsibility 

Over the lasl two centuries, much has been writtrm by Congress, the Supreme COlm, 

academics, and others regarding the history, scope, and nature of the federal trust responsibility 

to Indian tribes. In all this, some principles Wll1rllllt gelleralllcknowledgement. 

First, the relationship of Indian tribes to Ihe United Slates is founded on "the settled 

doctrine or the law of nations" that when II stronger sovereign assumes authority over II weaker 

sovereign, the stronger one assumes a duty of protection for the weaker one, which docs not 

serrender its right to self-government. Worcester v. Georgia, 31 U.S. 515, 551-56, 560-61 

(\832); :>ce also United Slales v. Candelaria, 271 U.S. 432, 442 (1926) (Congress "was but 

eontinuillg the policy which prior governments had deemed essential to the protection of such 

Indians."); United Slate:> v. KagmnCl, 118 U.S. 375, 884 (1886) (~Prom their very weakness ... 

there arises the duty of protection, and with it the power. ·nlis has always been recognized 

.... "). Indeed, because of this background, the federal trust responsibility necessarily 

constitutes a roundational basis ror, not merely a function of, congressional legislation regarding 

Indians. Sea, e.g., Felix S. Cohen, Handbook ofPederal Indian Law XI, XIlI (1941) ("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"; "the entire body or redemllegisl>llion 

on Indian affairs .... lllily be viewed in its entirety as the concrete content of tlle abstract 

principle of federal protection orthe Indian"). In addition, the federal-tribal trust re~'Ponsibility 

may even constitute au inherent limit on the Indian Commerce Clause and exercise oftha Treaty 

Clause regarding Indians, just as "limitations on the commerce power are inherent in the very 

language of the [interstate] Commerce Clause, United States v. Lope:!, 514 U.S. 549, 553 (1995); 

see United Srare.1 v. Mr>rrisrm, 529 U.S. 598, 608 & n.3 (2000) (quoting Lr>/II:$, S 14 U.S. at 556-

557), or as an inherent ''presupposition of our constitutional structuro[,]" such ~s under the 

Eleventh Amendment, Blatchford v. Native Vfllage of Noatak, 501 U.S. 775, 779 (1991); see 

Seminole Tribe v. Florida v. Florida, 517 U.S. 44, 54 (quoting same). See generally Marbury v. 

Madison, 1 U.s. 137, 176 (1803) {'"rhe powers ofthc legislature arc defined and limited ... and 

those limits may not be mistukcn, or forgottcn[.J'j. 

Second, the federal-tribal !nlst reSJXlnsibiHty is also founded OIl treaties and agreements 

securing peaee with and land cessions by Indian tribes, Which provided legal consideration for 

the ongoing perfonnance of federal trust duties: 

In the exercise of the war and trealy powers, the United States overcame the 

Tndiatls and took posso:ssion of their lands, sometimes by force, leaving them ... 

dependent people, needing protection against the selfishness of others and th.eir 

own improvidence. Of necessity, the United States assumed the duty of 

furnishing that protection, and with it th.e flUlhority to do all that was required to 

perform that obligation. 

Morton v. Mal1cari, 417 U.S. 535, 552 (1974) (quoting Br>ard ofCr>UI1ly Cr>mm 'I"S v. Seber, 318 

U.S. 705, 715 (1943): see also Worcester, 31 U.S. at 543-:54 (discussing treaties securing and 

preserving fricndship and land cessions, and noting that the stipulation acknowledging tribel! 10 

be "under the protection onhe United States" "is fimnd in Indi3n treaties generally"). 
34


517b3.eps

Given this, the federal-tribal trust relationship is not a gratuity, but arose IlIld remains 

legaHy enforceable because ''the governmcnt 'has ovcr the years made specific commitments to 

the Indian people throllgh written treaties and through informal and formal agreements,' in 

e:-:change for which 'Indians ... have often surrendered claims to vast tracts of land.'" 8r. for 

Federal Petitioners, Salazar v. Pa/chak, No. 11-247 (U.S. Feb. 7, 2012), at 22 (citation omitted); 

see also Misplaced Trust: The BIA's Mlsmgm!. of the Indillil Trust Fund, H. Rep. 102-499, at 6 

(1992) ("The system of trusteeship ... is deeply rooted in Indian-US. history.''); Stmt. on 

Signing Exec. Order on Consultation & Coord. with Indian Tribal GOVK (Nov. 6, 2000), Pub. 

Papers of U.S. Presidents: William Clinton, 2MO, at 2306 ("Iud ian nations and tribes ceded 

lands, water, and mineral rights in exchllllge for peace, seourlty .... "); Special Msg. an Indian 

Affairs (July 8, 1970), Public Papers of U.S. Presidents: Richard Nixon, 1970, at 565-66 (stilling 

same !IS brief and this relationship "continues 10 carry immense ... legal force"); Am. Indian 

Policy Review Comm'n, Filllli Report Submitted to Congress 5 (May 17, 1977) ("AIPRC 

Report") (noting same). Accordingly, historic: federal-tribnl relations established "obligations to 

the Iilllillment ofwbieb the national bonor has been committcd[,]" Heckman v. United SUllas, 

224 u.S. 413, 437 (1912), IlIld "the people as a whale benefit when the Executive Branch. 

protects Indian property rights recognized in treaty commitments ratiliedD by a coordinate 

branch." Letter from Altorney General Griffin Bell to Secretary of the Interior Cecil Andrus 3 

(May 31, 1979). Moreover, Indians' Jnstifiable expectations and legitimllte reliance on those 

commitments and the Ions paSSHSC: of time ~ince the United Slates and all Americans have 

continuously reaped the benefits oflndionland cessions and peace prednde any current assertion 

Ihat the federal government does nl;)t owe ongoing, enforceable fiduciary duties to Indi~n tribes. 

See City of Sherlll v. Oneida Indian Nation, 544 U.S. 197, 215-17 (2005); Uniled Stales v. Minne.mla, 270 U.S. 131,201,202 (1926) ("[C]ourts can no more go behind [a treaty} for tbe 

pUl]XJse I;)f annulling it in whole or in part tban they can go behind an act of Congress." "The 

propriety of this rule and the need for adhering to it are well illustrated in the present case, where 

the assnult I;)n the treaty cession is made 70 years after the treaty .... ''). Likewise, the fact that 

''the Government has often structured the trust relationship to pursue its own policy goals!,]" 

United States v. Jicarilfa AJKlche Nfl/ion ("Jicari/{a VIr,), 131 S.Ct. 2313, 2324 (20 11). ~uch that 

the relationship has lx:cn of 1.011 violated and at times terminated, can no more disprove the 

e;,:ist~nce of enforceable fiduciary duties than the fact of people killing otbers can establisb that 

murder and genocide are not crimes. 

Third, given the distinctive trust obligation thllt has long dominated federal denllngs with 

Indians, enforccablc fiduciary duties ~necessarily ariseD" when the Government as~'Umcs control 

or supervision over tribal trust assets unless Congress has specified otherwise, even though 

nothing is said expressly in the ~overuing statutCll or regulations. United Stales v. ,Wi/chelf 

("Ml/chelilF'), 463 U.S. 206, 225 (1983): see also UnUM Stale:; v. Navajo Nation, 129 S.C!. 

1547, 1553-54 (2009) (enforceable fidudary duties apply where statntes and regulations give the 

fcderal government "'full responsibility to manage Indian resources and Innd for the bentllil of 

the Indians"') (quoting Mflch<:1l II, 463 U.S. at 224). Therefore, the federal·tribal trust 

relationship is enforcenble even when "'[t]here is not a word in. the only [governing] 

substantive source of law ... that 5U&:!!CSts thc cxistenee of such a mandalc.'" United Stat~s 1'. 

While MOI/n(ain Apach~ Tribe, 537 U.S. 465, 476-77 (2003) (citation omitted). Moreover, once 

.statutes or regulations establish enforceable fidueillry obligations, courts ~lookD to common-law 

principles to inCorm ... interpretation or statutes and 10 determine the seope of liability tbat 
35


517b4.eps

COngress has imposed." Ji=,.tl/a VlI, 131 S.Ct. at 2325; saa 25 U.S.C. § 162a(d) (recognizing 

that trust responsibilities "arc not limited to" those enumerated). In addition, "II]he Government 

does not 'compromise' its obligation to one interest that Congress obliges it to represent 

[regarding Indinns] by the mere fact that it simultaneously perfonns another !ask ror another 

interest that Congress has obligated it by s!atule to do." Nevada v. UnilCd Stales, 463 U.S. lID, 

128 (1983); .~ee also id. at 135 n.15. 

fourth, while the rederal-tribal relationship both initially and reoontly has been d=ribed 

as resembling" guardianship, B.g., Jicarilla VII, 131 S.C!. at 2325; ChflFGkee Nalian v. Georgia, 

30 U.S. I, 17 (1831), that characterization is not legally accurate and does not undernline 

fiduciary duties. The analogy is not apt because unlike a true guardianship, Indian tribes do not 

lack legal capacity and the United States holds title to most Indian assets in trust, it was not 

appointed to that position by a court, and its powers and duties are not m~rely fixed by 5tatutes. 

Compare Restatement of Trusts (Second), § 7, emt. a ("A trustee has title to the tru~t 

prop~rty; a guardian ofpropcrty does not .... "; "a guardian is appointed only when and for so 

long as the word Is locking in legal capacity"; "A guardian is appointed by a coml[.]"); ill. § 7, 

cm!. b ("The powers and duties of a guardian are fixed by statutes; the: powers Ulld duties ofa 

trustee arc dctcnnincd by the terms of the tmst and by the rules stated in the Restatement ... as 

they may be modified by statut!:.") wilh U.S. Canst., arL I, § E, el. 3 (Commerce Clause); 2S 

U.S.C. § 462 (continuing periods of trust on Indian lands); Jicarilfa VIl, 131 S.Ct. at 2325 

(recognizing application of common-law). In addition, chamctcri~ation oC the federal-tribal 

relationship as a guardianship does not preclude Of limit application of enforceable fiduciary 

duties, because "[tOhe relation bc:t\\fIlen a guardian and ward, like the relation betwcen a trustee 

and a bll!leficiary, is a fiduciary relation." Restatement ofTrllsts (Second). § 7, cmt. a. 

I'inally, application of the principle that guardinnships apply "only when and for so long 

liS the ward is lacking in legal capacityLT' M., supports tribal governmental self·determination. 

Sueh retained govcrnmcntaljurisdiction that is not limited to a tribe's memb~rs alone was surely 

contemplated by tribes when they entered into treaties with the United States. AIPRC Report, 

supra, at 5. Also, rccogni:.dng that the federal trust responsibility ineludes a duty to promote 

tribal self-determination, and n lack of conflict between the two, is consistent with rep~ted 

Congressional recognition and Executive policy for more thID! 40 years. &e, e.g., 25 U.S.C. 

§§4S0(a) (Indian Sclr-Dctcnnination Act findings), 2103(e) (continuing obiigatiOtls regarding 

Indian mineral development agreements), 4021 (providing for withdrawal of tribal trust funds 

"consistent with the tnlst l"CSpOnsibilities of the United States and the principles of self· 

detennination''); Exec. Order 13,175, § 2, 3 C.F.R. 304, 305 (2000) (1'C\:ognizing b()th as 

"FundaulOntal Prin(:iples',); l\'ixon Message, supra, at 565·55. In particular, C()ngress has 

consistently preserved the trust relationship even with self-detennination. E.g., 25 U.S.C. 

§ 450f(e) at model self-determination agrt:~ment section (d). This recognition also is consistent 

with the settled law 011 which the trust responsibility was based, 3S well 35 current international 

law. Sec, e.g., Worcester, 31 U.S. at 560-61; U.N. Charter art. 73 (UN members with non-self· 

governing {erritorie~ ha\fll lru5t obligations of ''protection against abuse" and "to develop selfgovernment"): International Covenant on Civil and Political Rights art. I, , 1 (1966) (~AlI 

peoples have the right of self·dclcrrnin~tion."); U.N. Decl. on the Rights ofIndigcnous Pcopks 

arts. 3, 8.2(a)_(b), 18-19,27-28,32 (2007) (eoncerninc self-determination, state mechanisms for 

prevention and redress, decision·making, consultation, and use or development of resources). 
36


517b5.eps

The E;!;:ecutive's Extended Efforts to Eviscerate the Trust ResponsIbility 

Notwithstllllding the estubHshcd law and policy of the S~lf-Dctermination Era and many 

positive efforts by presidential administrations of both political parties over the last four decades, 

the Executive Branch over this period ulso has rcp~lltedly sought to IIvoid and repudiate the 

federal-tribal trust responsibility rather Ihan fulfill the foundational principl~ outlined aoove. 

Most broadly, the Executive Bmnch has repeatedly misrepresented relevant facts and law in 

Indian Irusllitigation iu an effort to limit fet!cralliability, as part ora broader effort to protect the 

public fisc and prevail in litigation, and eon5ist~nt with admitt~d mi5~presentations before the 

Supreme Court. See generally California Fed. Bank v. Uniled Slates, 39 Fed. Cl. 753, 754 

(1997), rev'd .wb 110m. on other groullds, Su~ss v. Ul1ited Stat~s, 535 F.3d 1348 (Fed. Cir. 2008) 

(concerning Win..tar savings and loan cascs: "BC(;3USll the dollars al stake appear to be so large 

the government has raised legal and factual arguments that have little or no basis in Jaw, fact or 

logic.''); Neal Katyal, Aating Solicitor General, Confessions of Error: The Solicitor General's 

Mistakes During the Japanese-American Internment Cases (May 20, 20 II) (admitting failure to 

disclose key intelligence report that undermined rationale in Korematsu v. United llYates, 323 

U.S. 214 (1944»; Neal Katyal, Acting Solicitor General, Presentation to Fed. Bar Ass'n 36th 

Annual Indian Law Conf. (April 8, 2011) (apologi2ing for material misrepresentations in United 

Slates v. Sandoval, 231 U.S. 28 (1')13), and T~e_Hil_Ton Indians v. Ul1il~d Siale.,·, 348 U.S. 272 

(1955)); U.S. Dept. of Justice, 13nvt. & Natural Resources Division ("ENRD"), FY2013 

Performance Budget Congressional Submission 2 (noting "Strategic Objective 2.6: Protect the 

rederal fisc"), 11 ("The effectiveness of our defensive litigation" conceming tribal trust litigation 

is measured in part by "savings 10 the federal fISC."); Ell/erg)' Nuclear Fitzpatrick, LLC v. United 

States, 93 Fed. CI. 739, 744 n.4 (2010) ("In its response, the Government quotes this tcxt but 

carefully om!ts the patent!y relevant portion .... To note that the Court is highly dismayed with 

Defendant's brief in this regard is an understatemenL TL naUy will not CQunten!ll1cc any such 

misbehavior in tin: future."); Precision SpecIalty Metals, Inc. v. United States, 315 F.3d 13-16, 

1355_57 (Fed. Cir. 2003) (affirming federal attorney sanction for misquoted judicial opinions in 

brief to conceal adverse allthar!ty, "'which intentionally or negligently misled the court"'). 

For example, a number of fedeml eourts have either imposed sanctions for or strongly 

rejected unfonnded federal assertions in Indian breach of trust cases. See. e.g .. Osage Tribe v. 

United Stales, 93 Fed. CI. 1,6-7 (2tHO) (rejecting assertion thatllle United States is not bound by 

prior rulings in case on broach of trust duties. noting that "[t]hc COllrt is dismayed by defendant's 

approach to the resolution of plaintiffs claim5~); Osage Tribe v. United States, 75 red. Cl. 452, 

46869,48081 (2007) (rejecting argument previously rejected six times by the Supreme Court 

and the Federal Circuit, noting that "Defendant's argument would ... 'reward the government 

for inaction that violates thc go\'crmucllt's fiduciary dutics to collect funds nnd accrue 

interest."'); Jicarilla II, 60 Fed. CI. at 613-1<1 (rejecting opposition to disclosure of tribes' own 

information); P11eblo of Lagu/1lJ, 60 Fed. Cl. at 135-37 ("Contrary to defundllllt's impmtunillgs, 

this court plainly has the authority to issue such orders" to require preservation of relevant 

evidence); Me.<ca/v. Ullil~d Slale.!, 161 KR.D. 450, 454-55 (D.N.M. 1997) (sanctioning federal 

!!ltomey sua sponte for factual mi~represenl<ltions); Oglala Sioux Tiibe of the Pine Ridge Indian 

R~serva/ion v. Unlfed Slates, 21 CI.Ct. 176, 192 (l~0) ("Such an assertion [by the Unit~d 

Sl<ltosj, we find, is shocking, insofar as it is a gross misstatement of tile law."); Assiniboine & 
37


517b6.eps

Sioux Tribes of Fol'/ Peck Resarvalion v. Untred Slares, 1(; CI. Ct. 158, 1(;4·65 (1989) (imposing 

sanction for federal fuctual misrepresentation). 

Among these cas=s, thre= notable el((lmples WDrmnt further discussion here. First, lit least 

six times over the IlISt 32 yCllrs, thc Supreme Court and rcdoral appllllatll courts have rojO::Clcd 

Exccutiva Branch arguments that there is eS)entially no enforceable federal·tribal fiduciary 

relationship because the United States is llot subject to any duty that is Ilot expressly spelled out 

in stlltUtes or regulations. Sl!e, e.g., .licad{[o VII, 131 S.CI. at 2325 C'W<:. hav<:. look<:.d to 

common-law principles to inform our interpretation of statutes and to determine the scope of 

liability that Congress has imposed."); While Mountain Apache, 537 U.S. at 476_77 (anirming 

trust duty evcu though there was nOL a word in the only rCk:VlUlL Iuw Ihut suggested such u 

mandate); Cobel! v. N0I1on, 392 F.2d 461, 472 (D.C. Cir. 2004) (under While MOl/main ApCJChe, 

"once a statl.1tory obligation is identified, the court may look to common law trust prlnciples to 

particularize that obligation''); Cabell v. NorlOIl, 240 F.3d 1081, 1100-01 (D.C. Cir. 2001) (per 

Milehdlll, "[L]he general 'contours' of the government's obligations may be definoo by statute, 

but the interstices must be filled in through reference to general trust law"); Dllncall v. Uniled 

Siales, 667 F.2d 36, 42-43 (Ct. Cl. 1981) (rejecting that "a federal trust must spell out 

specifically all the trust duties of the Governmcnt'''); NfflIqjo 1i1be v. United SrnlllS, 624 F.2d 

981,988 (Ct CL 1980) (''Nor is the CL)urt required to find all the fiduciary obligations it may 

enforce within the express terms orun authorizing statute .... "). 

Notwithstanding these decisions, including just last yettr by the Supreme Court, the 

Executive Bronch has rCll8scrtcd this argument on remand from the Supreme Court. The 

conclusion of the resulting most rect::nt rejection of this repeated argument warrants restatement: 

[fhe United States] would have this court blithely accept whDt so many 

courts huye rejected-thai fur the breach of n fiduciary duty to Ix: actionable ill 

this court, that duty must be spelled oul, in no uncertain terms, in a statute or 

regulation. But to conclude this, this court would have to perform a logic·defying 

rem ofIega! gymllllStics. 

That routine ""''Quid commence with a full jurisprudential gaincr-a 

twisting, backwards maneuver that would allow the court to ignore cases like 

While M01mtain Apache and Mitchell IIthat havc relied upon the common law to 

map the scope of enforceable fiduciary duties established by statutes and 

regulations. The court would then need to vuult over Cheyenne-Aropoho and u 

souring pyramid of other precoocnts, all of which havc found defendant's 

argument wanting. Next, the court ""''Quid be called upon to handspring to the 

conclusion that Congress' repealed legislative efforts to ensure the safe 

investment of tribal funds were mostly for uuught-because, if defendant is 

correct, the provisions lmRetcd wcre generally not pcrspicuQu~ ellough to create 

enforceable duties and, even where specIfic enough to do so, left interstices in 

which defendant could range freely. Indeed, while egging the court on, defendnnt 

never quite eomcs to grip with the fact that if the govemment's fiduciary duties 

arc limiltxl to Ihe plain dictates of the ~Iatutes themselves, such duties are not 

really "fiduoiary" duties at all. SeF! Varily Corp. 1'. Howe, 516 U.S. 489, 504 ... 
38


517b7.eps

(1996) (,'liJf the fiducIary duty applied 10 nothing more than activities already 

controlloo by other specific le~al ~uties, it would serve no purpose"). Taken to its 

logical dismount, defendant's view of the controlling statutes would not only 

defeaL the lwin claims at issue, but virtUlllly allihe investment cI~ims found in the 

tribal trust cases, few of which invoke haec verba specific language in:l statute or 

regulation. Were the court convinced even to attempt this tumbling run, it ulmOSI 

certainly would end up flat on its back and thereby garner from the three judges 

reviewing ils efforts a combined score of ''zero''-uot coincidentally, precisely 

the uumber of decisions that have adopted defendant's position. 

This court will not be the first to blunder down this path. 

Jicmifla VIII, 100 Fed. Cl. at 738. Notwithstanding that dedsion and the ~phalanJ( of ... 

precedenf' on which it is based, id., the EXeclitive Branch still disputes Ihis point, and it cnn be 

expected to continue to press its position following a trial ruling expected later this year in the 

first phase of the case. Se~. e.g .. U.S.'s Mem. of Contentions of Fact & Cone. of Law (Phase 1 

Trial) ("Pre-Trial Brief'), Jicarilla Apache Nntion v. Ullited States, No. 02-025 (Fed. CI. Oct. 28, 

2011), ECF No. 350, Ilt 3; U.S:s Post-Trial Brief, Jicarilla Apa~he Nalion I'. United Stales, No. 

02-025 (Fed. CI. Jan. 23, 2012), ECF No. 380, m 55 n.1. Similar issues apply to the E.'{ecutive 

Branch assertion that its mOilllg~ment oflndiwl trust assets should be subject to an arbitnuyand 

capricious atlministrativc stantlard of review, rather than 3 strict fitlllciary standard of care, 

contrary to fifteen prior decisions by the Supreme Court Dnd lower federtll courts. See, e.g., 

Jir;arilla VIII, [00 Fed. CI. at 739 (quoting, citing, and tlisclISsinG prior decisions); };carilla 

Apache Nalion v. United Slales C'Jicarilla II!'J, BS Fed. Ci. I, 20 & n.28 (2009) (same, noting, 

"it is often obscrvo,;:d that tho.:: duty oreare owed by the United States 'is not mere reasonableness, 

but the highest fiduciary standards"') (citation omitted), mandamus denied 011 olher ground sub. 

nom, In ro Unil~d Slales, No. 09-908 (Fed. eir. Aug. 3, 2011), ECF No. 318; see espedally 

Seminole Nation v. Ullited StaM.~, 316 U.S. 285, 297 (1942) (The Government's conduct in 

d~aliag~ with Indian~ "~hould th~efore bejudged by the most exacting fiduciary slandards.~). 

Nex:t, notwithstanding a heightened duty {)f candor because of the "5peci~1 credence" that 

the Supreme Court givcs to the Solicitor Genemt, sec Jiirabayaslii 11. Ulliled Slales, 828 F.2d 

591,602 & n.l0 (9th Cir. 1987) (discussing KoremolslI misrepresentation), the D~artmcnt of 

Justice has not been either candid \Vith the Supreme Court or consistent \Vith prior Department of 

the Interior policy in either of two recent Supreme Courl Indian trust responsibility CIISC3 that it 

won. In United Stales v. Navqjo Natioll, 537 U.S. 488 (2003), the Supreme Court ruled th~t 

neither the Indian Mineral Leasing Act ("IMLA'') nor its regulations established enforceable 

fiduciary duties that precluded the Secretary of the Interior from ~ecretly colluding with a mining 

company to force extended unsupervised tdhal lease negotiations under severe economic 

pre~sure, not disclosing support for a higher rcyalty, an~ then approving the resulting Icase 

without assessing the merits of the royalty. See id. aI497-500. 506-08, 512. tn this, the Supreme 

Court emphasized a purported distinction under the IMLA and its regulations llctwcGn oil and 

gas and coni leasing, id. at 495-96, that the lMLA aims to enhance tribal self-delCl1TIinaticn by 

giving Tribes the lead role in negotiating mining l<;:ases, id. at 508, and that il was not until later 

that a regulation first required consideration oflndians' best interests in administrative decisions, 
39


517b8.eps

id. at 508 n.12. I-Iowcv~r, the Ex~utive Branch did not admit there that during the relev~nt 

period the governing regulations provided the following: 

No oil and gas lease shall be approved unless it has first been offered at an 

advortis3d sale in accordanc~ with [25 C.F.R.] § 211.3. Leases for mineTdls other 

than oil and gas shall be advertised tor bids as prescribed in § 211.3 unless the 

Commissioner [orIndian Affairs] grants to th", Indian owners "'Titten p",rmission 

to negotiate for a lease. Negotiated lenses, accompanied by proper bond and other 

supporting papers, shall be filed with the Superintendent ofthe appropriate Indian 

Agency within 30 days after such pennisslou shall have been granted by the 

Commissioner to negotiate the lease. The approprrnte Area Director is authorized 

in proper eases to grant a reasonable extension of this period prior to its 

expiration. The right is reservcd tu the Sccretary of the Interior to direct that 

negotiated leasr:s be rejected and that they be advertisrxl for bids. 

25 C.F.R. § 211.2 (1958-1996). The governing regulations thus only treated coal leasing 

differently by allowing limited nel,;Otintions subject to strict federal Dvcrsicht und supervening 

control, which the Executi'>'C Branch roiled to provide. Moreover, the Executive Branch did not 

acknowledge before the Supreme Courlthat the subsequcnt rcgulation requirinc consideration of 

Indians' best Interests in all federal actions under the IMLA, 25 C.F.R. § 211.3. merely "sottle[d] 

the issue of whetlwr thc Secretary is limited to wehnieal functions or eonsidcralions[,]" to be 

"consistent with the United States' trust responsibility as defined by statute[.]" 56 Fed. Reg. 

58734, 58735 (Nov. 21, 1991) (proposctl rule). The Executive Branch also failed to 

aeknowledge that in the lower court it had eJo:pressly conceded thM the IMLA required it to "take 

the Indians' best interest into accmmt when maki~g any decision involving [mincral]lc!lSGs on 

tribal lands," Kenai Oil and Gas, Inc. v. Dcp'l oJlhe InI~rior, 671 F.2d 383, 387 (10th Cir. 

1982), and thaI tho Jator regulation momly eodiIied tho preexisting statulmy requirement, see 61 

Fed. Reg. 35,634, 35640 (July S. 1996) (final rule). 

More rec~ntly, in JicariJIa VII, th~ Supr~me Court ruled that Ihe fidueinfY c""eption to 

the nttorncy-client privilege does not apply to the federal-tribal trust relntionship" including for 

tribal trust fund management. tn addition to m:srcprescnting that no common-law fiduciary 

duties apply at all. as discussed above, the EJo:ccuf.ve Branch argued there that the United Stales 

does not repfCSI.lnt trib~1 interests and docs not have dUlies of loyalty or disclosure in managing 

Indian trust assets, that the performallce of federal trust administration is essentially a gratuity 

not paid for by tribes, and that disclosure there would cause ethics problems and chill critical 

legal ndvice. &e generally Br. for the United Stttes, United Slates v. Jicar;/!a Apache Nalioll. 

No. 10-382, at 13-16,28,31-41 (U.S. Feb. 22, 2011). However, the 131<OOlltive 13r.uwh. failed to 

neknowledge any of the foundational history and principles discussed ahove. It also failed to 

discl05e th~t all E;>;:ecutive Branch employees haw a duty of "loyalty to the Constitution, laws 

and ethical principles" as a "[b]asie obligation of public service[,]" 5 C.F.R. § 2635.IOI(a). that 

Department of the Tnterior employe~s must "[e]omply with any lawrul regulations, orders. or 

policies[,]" and that failure tu comply with such policies warrants disciplinary action including 

removal. 43 C.F.R. §20.S02. In particular, Ihe Department of the InteriClr Mnnunl ("DM") 

prescribes such mandatory policies, 011 DM 1.2, and requires that ~mployees "discharge ... the 

Secretary's Indiall trust respollsibility with a high degree of skill. care, and loyalty[,]" 
40


517b9.eps

"[cjommunicate with benefkia! owners regarding the management and administration of Indian 

trust assets[,]" and "[Il]ssure that ony management oflndiall trust asscts ... promotes t1w interest 

of the bencnc;jal ownllr[s.]" 303 DM 2.7. 2.7B, 2.7L. Moreover, the DM defines "Indian 

Fiduciary Trust Records" as including all documer.ts lhrrt are used in the mllno~ment of Indion 

trust asSCIS. 303 DM 6, app. (decision trees); cl 303 DM 2.71 (reeord~ping duty); Dept. of the 

Interior, Comprehensive Trust Mgmt. Plan 1 n.1 (March 28, 2003) (defining "fiduciory trust" as 

concerning trust asset management, a3 distinguished rrom the "general trust" rc!;arding 

appropriated program funds). Furthermore, the Secretarial Order that provided the basis for 303 

DM 2 (i.e., its regulatory history) recognized dInt understanding the Department's nonc.~haustive 

trust responsibilities includes lookillg to guidance in le8ll1 advice by the Solicitor's Office. Sec. 

Order No. 3215 I} 2 (April 28. 2000). Thus. required communication with Indian beneficiaries 

about trust asset managcmcnt necessarily includes disclosing supporting legal advict!. 

In addition, the Executive Branch failed to acknowledge before Ihe Supreme Court tlmt 

its claims of potential harm from disclosure had ''a somewhat hollow ring" because it had 

"simply complied" with several similllr prior disclosure orders over nine years. &ff .licorilla V, 

91 Fed. CL at 494 & n.8; Jicarilla JII, 88 F~d. CI at I 1. Indeed, the E.xecutive Branch previously 

had disclosed almost half the disputed documents-some even in prior litigation several decades 

ago-all without any idenlifi~ble ill effects. Finally, the Executi,'e Branch failw to disclose that 

the attorney-client privilege "applie.s only where necessary to achieve its purposc~]" Fisher y. 

Uniled Slale:s, 425 U.s. 391, 403 (1976), whkh "~crv~s 'broader public interests in the 

observance of law and administration of justice,'" Mohawk Indll.,'lril!$ v. Cnrpl!IIll!r, 130 S.C!. 

599, 606 (2009) (qnoting Upjahn Co. v. Uniled Slale,\', 449 U.S. 383, 389 (1981), and that 

disclosure (h~r_like allowing tribal damage claims--would "deter federal officials from 

violating their trust duties," Milrmeli ll, 463 U.S. 3tll7. For further inronnation on these issues. 

sec the attach~d PowerPoint Elhics Presentation. 

Tn sum, it appears thut the Executive Branch response to prior Congressional oversight 

and rejection of its trust repudiation legislation proposal has been to continue to proclaim fealty 

to the trust responsibility as a toothless moral platitude while secking to avoid rull responsibility 

before the Supreme Court. Compalr! U.S. Dep!. of the Interior, J1is<:al Year 2012 Interior Budget 

in Brief DH-66 (Feb. 14, 2011) (quoting Se~retnry of the Interior. "Indian Counlry deserv~ 

rt:sponsive and responsible busine~s practices from Interior (hat will ... comply with the 

obJigntiolls of a trustl:e."); Kemarks by As.~ist8l\t Attorney GGneral 19nacia Morr:no on 201 J 

Priorities for B,\UID, U.S. Dept. of Justice (Jan. 13, 201 I) ("I could not be more committed to 

fulfilling the Division's core missioll[,l" including ~{cJareful and respectful nUlnagemelll of the 

United States' trust obligations to Native Amcric8l\s~) wilh supra di5~ussion; Oversit:;hl Hearing 

on ludian Trust Fund Litigation Before U.S. Senate Committee on Indian Affairs, S. Hrg. 110-71 

(2007): Misplaced Trust, supra, at 2_5, S_28 (discussing prior reports und oversight hearings and 

BrA's railure to comply with congressional directives): Remarks by the President at the While 

House Tribal Nations Conference (Dec. J 6, 2010) ("Whru: matters far more than words ... are 

actions to match those words .... That's the standard I expect my administration to be held to.'). 

This Exccutivc Branch approach imp~rmissibly ignores foundational American history 

and commitments, as weU as Congress' express constitutional authority and repeated directives. 

It also materially undermines federal_tribal govemmenl-t01l0vemmenl relaLionships, lIS' well n.~ 
41

The CHAIRMAN. Thank you very much, Mr. Rey-Bear. 

To the panel, as you know, fixing the Carcieri decision is one of 

my top priorities. My question to this panel is, what is your view 

on how the Carcieri fix will strengthen the Federal Government’s 

trust relationship with Tribes? Ms. McCoy? 

Ms. MCCOY. Thank you, Mr. Chairman. I think it is important 

that Congress proceed to address the situation in the wake of the 

decision that has put the matter back to Congress. And I think it 

is important that, again, it goes back to the history and what can 


517b10.eps
42

be done, I think, to treat all Tribes equally and fairly with their 

most important resource, the land. 

So, we urge again, you know, that the work that needs to done 

to accomplish that continue to be done in consultation with Tribes 

on that. 

The CHAIRMAN. Thank you very much. Mr. Fletcher? 

Mr. FLETCHER. Thank you for that question, Mr. Chairman. The 

Carcieri case is near and dear to my heart. I am a member of a 

Michigan Tribe, one of six that had been administratively terminated. We are all treaty Tribes and the Department of the Interior 

in the 1870s chose not to return our phone calls anymore, for about 

100 years. As a result, Carcieri potentially has applicability to 

some of the Michigan Tribes. 

I think that a Carcieri fix, especially a simple one, simply reversing the Supreme Court’s decision, would accomplish a very important task which is for Congress to demonstrate to the United 

States Supreme Court how serious they are in their trust relationship. 

Carcieri is a direct rejection of the Department of Interior’s seven 

decade long interpretation of Section 5 of the Indian Reorganization Act. Seven decades of consistent regulatory interpretation of 

the statute. And the Supreme Court said that it is fundamentally 

irrelevant to our decision. 

And I think for Congress to fix Carcieri would be a statement, 

not only on the question of Carcieri, but from Congress directly to 

the Supreme Court saying we are very serious about the trust responsibility and we are very serious about reducing the Supreme 

Court’s interference in the trust responsibility. Thank you. 

The CHAIRMAN. Thank you very much. Mr. Rey-Bear? 

Mr. REY-BEAR. I completely agree with the comments that have 

been made already. I would only add that the importance of enacting Carcieri fix legislation, I think, is well illustrated by the fact 

that it will significantly help enhance prospects for Tribal self-determination and economic development and it will cost taxpayers 

nothing. 

The CHAIRMAN. Thank you. I agree with you that fixing Carcieri

is vital. It is vital to ensuring a strong trust relationship. I want 

to announce that a report on this 676, the Carcieri Fix legislation, 

is being filed today and will contain a great deal of information 

based on the record built by this Committee on the need for this 

legislation to pass this Congress. We will be working diligently on 

that. 

Let me now ask other members for their questions and I may be 

back with further questions. Vice Chairman Barrasso? 

Senator BARRASSO. Thank you, Mr. Chairman. And like you, I 

have a question for the panel. 

Recently, the Government moved to settle trust mismanagement 

disputes with 41 Tribes, I think totaling over $1 billion. Will this 

large settlement address many of the outstanding mismanagement 

claims by Tribes against the Government or are there still many 

pending claims that need to be resolved beyond this? 

Ms. MCCOY. Mr. Vice Chairman, I appreciate the question. The 

landscape of the cases, I think, is such at this time. At one point, 

there were over 100 pending cases and the previous Administration 

43

settled three of those. And from 2010 to 2011, this Administration 

settled another three. And then, most recently, another 42 were announced. So, I think that cuts the number in half of the pending 

cases. 

Back in 1996, Arthur Andersen contract reports on the effort to 

reconcile the Tribal Trust Funds were distributed to 311 Tribal account holders. So, that seems to put the number of Tribes that 

chose to bring claims to about one-third of the Tribal account holder population. 

Senator BARRASSO. The 100 of the 300, one-third. 

Ms. MCCOY. That is correct. 

Senator BARRASSO. Well, some of the, if anyone wants to jump 

in on that, or another question. Mr. Rey-Bear, did you have something you wanted to add to that? 

Mr. REY-BEAR. Yes. 

Senator BARRASSO. Go ahead. 

Mr. REY-BEAR. As I believe may have been noted earlier, there 

are about 100 Tribes that filed breach of trust claims. Forty or so 

have been settled. 

Senator BARRASSO. Yes. 

Mr. REY-BEAR. So, there are quite a number that are pending. 

In particular, the Nordhaus Law Firm where I work represents the 

Navajo Nation which has the largest claims of any Tribe. We also 

represent the Pueblo Laguna, which has substantial claims in large 

part because of what was at one time the world’s largest open pit 

uranium mine. Ms. Atcitty will be testifying on behalf of the 

Jicarilla Apache Nation. Their case is also pending. In particular, 

the Jicarilla Apache case had a trial last November for which closing argument is scheduled in two weeks. A decision in that case is 

expected this year. 

Senator BARRASSO. So, half of them are settled, essentially. Are 

the other half that are left over much more complicated or simpler? 

Or how do you weigh this so we get a better understanding of what 

is still out there? 

Mr. REY-BEAR. I would say both are still pending, both types of 

claims are still pending. 

Senator BARRASSO. You know, some of these mismanagement 

lawsuits are based on the claim that the Government has sold Tribal resources for below fair market value in violation of really what 

would be a trust responsibility. You know, sold too low. 

Is this a problem that is still occurring today even as we go on, 

or is the Government taking the proper precautions now to make 

sure that it is no longer happening, so we do not face additional 

problems and suits? Anyone have a thought? 

Mr. REY-BEAR. I hesitate to make a categorical statement, but 

the situation has certainly improved in large part because of the 

increased capacity of Indian Tribes to essentially police what the 

United States does. 

Senator BARRASSO. Okay. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Barrasso. Senator Udall? 

Senator UDALL. Thank you, Chairman Akaka. And this question, 

couple of questions, are just for the first panel here in general. 

Many of you mentioned the recent Jicarilla Supreme Court decision in your testimony and I would like to open up a little more 

44

discussion on that. What do you believe the current and future impact of the Jicarilla decision will be? Does the Jicarilla decision 

erode Tribal rights and/or Federal trust responsibility to Tribes? 

And do you believe the Jicarilla decision needs a legislative fix and 

what would that legislative fix look like? 

Mr. FLETCHER. I will speak generally about the Jicarilla decision. I follow the Supreme Court’s pronouncements on Indian law 

pretty carefully. 

Jicarilla is a case of relatively limited precedential value. But its 

statements about the trust responsibility are incredibly broad and, 

for the first time since, well, perhaps for 20 or 30 or many more 

years than that, the Supreme Court has begun to cite to a case 

called Lone Wolf versus Hitchcock, which is the classic case of establishing or recognizing a form of guardian-ward relationship between the Federal Government and Indian Tribes. 

Now, a ward suing a guardian really has no authority, has no 

right to force any kind of activity or certainly to win money damages for a breach of a guardianship whereas the trust beneficiary 

does. Now, if the Supreme Court is starting to rethink the trust relationship as more of a guardian-ward relationship and to limit it, 

Jicarilla is really a bell weather for future trust cases and it gives 

you a sense of where the Court is heading in that direction. And 

for Tribal interests, it is not very good. 

Senator UDALL. Do the other two panelists, do you have any 

thoughts on that? 

Ms. MCCOY. I think part of this stems from the, it is such a 

unique relationship. We have a sovereign, the United States, serving as a trustee for another sovereign, the Indian Tribes. And there 

really is no comparable. So, it puts a seemingly ordinary relationship in these extraordinary situations. 

I think that the history is important. I mean again, I will go back 

to, if the Indian Claims Commission in three decades, when Tribes 

were allowed an opportunity to present their claims and that resulted in awards of $1.2 billion and we are seeing the settlements 

now also over $1 billion to Tribes that have brought their claims, 

something about that says something that these matters can be addressed. 

As far as the future and the Supreme Court’s rule on that, this 

Supreme Court does not need the United States Government to 

guide its views on Indian rights. But, that tends to happen. 

Mr. REY-BEAR. The short answer is, it depends. There are practical implications. Part of my own practice, apart from litigating 

breach of trust claims, is handling trust acquisitions for Tribes. For 

a dozen years, when I would do this, in the process of handling 

these matters we would have to address title issues raised by preliminary title opinions. And, as a matter of course, the Department 

of Interior and the Bureau of Indian Affairs would provide those 

so that I, as the attorney for the Tribe, would know what title 

issues needed to be resolved to complete a transaction. 

Ever since the decision by the Federal Circuit in this case, the 

United States has stopped providing those preliminary title opinions because, as they stated it, they are attorney-client privileged 

communication that I am not allowed to see. So, that is just one 

practical working relationship sort of impact. 

45

Since the remand, the United States has used the decision to 

specifically argue that that decision essentially overturned decades 

of substantial case law, including case law that specifically recognizes Congressional legislation. For example, the Indian Trust Reform Act specifically holds and recognizes that the United States 

must maximize revenue from Indian Trust Funds. The United 

States has argued in cases that, notwithstanding that express Congressional statute, it has no such duty because of the Jicarilla decision by the Supreme Court. 

So, there can be substantial impact. However, it depends on how 

the Executive Branch acts going forward. If they reform, so to 

speak, then there should not be an impact. 

In essence, to quote Peterson Zah as stated in my written testimony, we need protection from our protector. And when the Executive Branch does not protect the interest of Tribes, we go to the Supreme Court. And now that the Supreme Court has said that it is 

not willing to protect the Tribes, the Tribes understandably come 

back to Congress. 

Senator UDALL. Yes, and I think that it is fair to say that there 

was a period in history where the Supreme Court was really a 

champion in terms of Native rights and now it has turned the 

other way and, in may cases, I think, the pleas fall on deaf ears. 

So, thank you for those answers. Thank you, Chairman Akaka. 

The CHAIRMAN. Thank you very much, Senator Udall. 

I do have a question for each of you. Ms. McCoy, the Native 

American Rights Fund has been instrumental in working with the 

Tribes over the years in litigation and protecting the scope of the 

trust responsibility. What do you think we in Congress can do to 

ensure the trust responsibility is as strong as it needs to be 

throughout the Federal Government? 

Ms. MCCOY. Mr. Chairman, again I will emphasize that it really, 

while NARF works with Tribes, we do not speak for them. And I 

urge, I urge the Committee and Congress to seek these answers 

from the Tribes themselves. That is the only way to really implement the government-to-government relationship. I am happy to facilitate that but I think the answer best comes from the Tribes. 

And I appreciate Mr. Rey-Bear’s reference, too, to the new Secretarial Commission on Indian Trust Administration and Reform. 

The Native American Rights Fund, on behalf of its clients, looks 

forward to working with that Commission which is charged with 

advising the Secretary of the Interior but which can also, of course, 

the work of the Commission can be shared with Congress and that 

would be specifically on the nuts and bolts trust issues that I had 

talked about, the trust accounts, the trust funds, the trust assets. 

Getting into other areas of the trust, education, health, and 

many other areas, Tribal courts and things like that, I think there 

are processes in place for that. And it is an ongoing relationship 

and as Tribal nations evolve, so must this Nation to step up and 

deal with that. 

It is a difficult task but it can be done. So, we appreciate opportunities like this hearing, and the Tribe leaders that are going to 

speak on the next panel, to really direct the work of this Committee. 

46

The CHAIRMAN. Thank you. Thank you. Mr. Fletcher, I know you 

host a blog that provides information on ongoing litigation and 

legal issues to Indian Country . My question to you is, how would 

you characterize the state of the trust relationship today based on 

your analysis and what improvements could be made to strengthen 

the trust relationship? 

Mr. FLETCHER. Thank you for the question. Yes, we have been 

watching what has been going on in Indian Affairs for the last several years. The blog started in September 2007. 

The first thing I would have to say, and it sounds like I may 

sound like what I am going to say is facetious, but I am very serious. I do not envy the Federal Government in its obligations toward Indian Tribes and Indian Nations and its trust responsibility. 

It is rote with inherent conflicts of interest. You could say they are 

both vertical and horizontal in that the Federal Government, especially the Executive Branch, must deal with conflicts between 

Tribes, within Tribes. These are conflicts that are not necessarily 

areas in which the Federal Government has a dog in those fights. 

But, in some cases, the Federal Government’s actions historically 

have created these fights. 

The other conflicts, of course, are within the Federal Government 

itself, most obviously within the Department of Interior where you 

have, perhaps, I do not know, the Environmental Protection Agency 

has a view in protecting the environment and the Bureau of Indian 

Affairs in relation to its trust responsibility to Indian Tribes that 

may conflict with the EPA on something. 

And we see that almost every week. Another case, another conflict arising, maybe in the news or maybe in a new decision that 

has come out. And what we are seeing, I think, are these conflicts 

are becoming, maybe, they are becoming much more serious, I 

think in part because Congress and the Executive Branch are taking their trust responsibilities seriously in most instances. 

What you are seeing, however, is a clampdown, certainly, on any 

kind of claims by Indian Tribes for money damages. Absolutely, a 

clampdown. And what Mr. Rey-Bear is talking about in terms of 

the actions of the Department of Interior and other Federal agencies in some of these cases has been going on a long time. Judge 

Lamberth in the early years, really the first 10 years of the Cobell 

litigation, repeatedly raised these issues of sort of, you know, dirty 

pool in litigation between Tribes and individual Indians and the 

United States. 

I think a couple of things that we are seeing, that we are going 

to see in the future that are very, very serious involve the natural 

resource extraction and environmental protection. There are a lot 

of Tribes around the United States that have been sitting on natural resources for a long time. Sometimes, those resources have 

been stolen out from underneath them and they are only now beginning to take control over those resources and begin to actually 

profit from them in a way that they normally should. And, at the 

same time, some of those resources are direct contributors to climate change and global warming as the best science would tell us. 

And so, and I have to do a call-out to my colleague Professor 

Singel again, who gave a talk recently at Montana Law School 

where she talked specifically about this new phenomenon, maybe 

47

it has been around for a while, but a newly important phenomenon 

called fracking. We do not know what the impacts of fracking are. 

A lot of it is going on in Indian Country. It is incredibly lucrative. 

But there have been reports that fracking has polluted drinking 

water extensively and perhaps even caused earthquakes here in 

D.C., although who knows. 

And so you see this kind of conflict. There are going to be interTribal conflicts and there are also going to be interagency conflicts. 

I would just conclude with I do not envy the Federal Government 

in this way because these are very complex and difficult issues. 

I know that Congress, in assessing priorities, can do a great deal 

of important work in this area. And I think probably perhaps, and 

I mentioned this before, perhaps its greatest impact may be to reconsider some of the cases that the Supreme Court has decided recently in terms of the trust responsibility and to just remind the 

Supreme Court that Congress and the Executive Branch, and particularly Congress, are really the primary interpreters of the Federal Indian law and policy and they are the policymakers in this 

question, not the judiciary. Thank you. 

The CHAIRMAN. Thank you very much, Mr. Fletcher. Let me 

make this my final question to Mr. Rey-Bear. What would you consider the lessons learned from the Jicarilla case and what actions 

would you like to see from Congress or the Administration following the Jicarilla decision? 

Mr. REY-BEAR. The cynical answer, unfortunately, is that when 

called to task for violations of fiduciary duties, the Executive 

Branch cannot be trusted to act honorably in its own defense. Its 

own departmental manual specifically requires informing Tribes 

and communicating with Tribes regarding the administration of 

their trust assets. And a Secretarial Order specifically recognizes 

that the administration of trust assets necessarily includes solicitor’s opinions. 

Notwithstanding the established policy of the Department of Interior which is mandatory and failure to comply with can result in 

termination, the Department of Interior, through the Department 

of Justice, argued that it had no such duty to the Supreme Court. 

So, that is one effect of the decision. 

As I noted already, it undermines working relationships with 

Tribes and the Federal Government when they should be aligned, 

for example, with the trust acquisition process that I noted already 

but also in disputes with third parties. Essentially, if the Federal 

Government does not take its trust responsibility seriously, why 

should anybody else? 

In terms of what Congress can do, I agree with the statement 

made already by Professor Fletcher that now is the time for Congress to reassert that, under the Constitution, it is Congress which 

is the primary repository for setting policy regarding Indian Tribes. 

The Indian Commerce Clause is in Article I, not in Article III. And 

so, that should be clear and the Supreme Court should respect 

Congress’ authority, just as the Executive Branch should. 

The CHAIRMAN. Thank you, Mr. Rey-Bear. 

Are there any further questions? 

Senator UDALL. Mr. Rey-Bear, if I could just ask one. Did you not 

mention the practice of split briefing in your testimony and how 

48

that was successful in the 1970s? Could you expand on that for the 

Committee and describe how this was successful and why the process was stopped and then what the current benefit of split briefing 

would be for the Tribes? 

Mr. REY-BEAR. The practice was instituted in the 1970s essentially as a stopgap measure, sort of an administrative way to implement a policy recommended by President Nixon in his Special Message to Congress in 1970 which called for establishment of what 

was to be called an Indian Trust Counsel Authority. The idea being 

that, recognizing that the United States sometimes has conflicts, 

there should be a specific representation of Tribes by the Federal 

Government which adheres to the trust responsibility, even if there 

are conflicts. 

So, what happened was that there was essentially an agreement 

between the Department of Interior and the Department of Justice, 

at the behest of the White House, providing that where there was 

a conflict between agencies, for example the Bureau of Indian Affairs representing Tribes and another agency, I cannot recall the 

specifics but an example current day might be the National Labor 

Relations Board. Where this is a difference of opinion, the Department of Interior would file a brief sort of respecting the trust responsibility for Indian Tribes and the other agency, through the 

Department of Justice, would file their brief stating the opposite 

position. And in the six cases where this was done, every single 

time the Tribal position prevailed. 

The practice was stopped at the behest or direction of Attorney 

General Bell in 1979. I do not know what the specific reasons were, 

but I think it is notable that the policy behind it regarding the Indian Trust Counsel Authority was not enacted by Congress in large 

part because the Executive Branch represented that it was not necessary because the Executive Branch knew what its trust responsibilities were and it would respect them in litigation. 

So, the benefits for the current day are in situations like San 

Francisco Peaks and the NLRB situation. 

Senator UDALL. Mr. Fletcher, you look like you might have a 

comment on that, or not. 

Mr. FLETCHER. I do not know the specifics. I had not heard about 

the split briefing. I think it is a great idea. I do also recognize that 

I think Tribes are in a much better position to state their own positions on the trust responsibility in the Supreme Court and in Federal courts as amice and as interveners as well. That is probably, 

possibly a big change as well. But I am in total agreement with Mr. 

Rey-Bear. 

Senator UDALL. Thank you. I do not have any additional questions for this panel. 

The CHAIRMAN. Well, thank you very much, first panel. Thank 

you for your answers and you have been helpful. We may have further questions for you that we will place in the record and there 

also may be some from some other members of the Committee. 

So, thank you very much for being here. 

I would like to invite the second panel to the witness table. 

The Honorable Ray Halbritter, Nation Representative of the 

Oneida Indian Nation from Verona, New York, the Honorable 

Fawn Sharp, President of the Quinault Indian Nation in Taholah, 

49

Washington, the Honorable Brooklyn Baptiste, Vice Chairman of 

the Nez Perce Tribe in Lapwai, Idaho, and Ms. Shenan Atcitty, 

Legal Counsel here on behalf of President Pesata of the Jicarilla 

Apache Nation in Dulce, New Mexico. Unfortunately, the President, as was mentioned earlier, was unable to be here with us 

today. 

So, welcome, Mr. Halbritter, please proceed with your testimony. 

STATEMENT OF RAY HALBRITTER, NATION REPRESENTATIVE, 

ONEIDA INDIAN NATION 

Mr. HALBRITTER. I commend this Committee for holding this 

hearing as the topic is both complex and fundamental to the 

unique relationship of our governments. The consequences of a 

half-hearted and flawed implementation of the trust responsibility 

are many. But the resulting impact on Tribal sovereignty is a central concern to Tribal governments across the United States. 

Although this Congress and the current and some past Administrations have been generally supportive of Tribal sovereignty and 

have aspired to honor the trust relationship, States and local governments often contradict and resist the uniquely Federal relationship, instead often exploiting opportunities affirmatively to undermine it. 

In the case of the Oneida Nation, our trust relationship begins 

with our being the United States’ first ally in the Revolutionary 

War. The United States’ obligations derive from the Treaty of 

Canandaigua, which was signed in 1794 by our friend, President 

George Washington. The United States continues to recognize our 

Treaty of Canandaigua, among the oldest of still valid treaties. 

It says two things that are mostly relevant for today’s hearing. 

First, the Treaty states that the United States acknowledges the 

lands of the Oneida, called our reservation, to be our property, and 

the United States will never claim our lands, nor disturb us in the 

free use and enjoyment of our lands. 

We agreed also to the following key provision from the Treaty. 

Less the firm peace and friendship now established should be interrupted by the misconduct of individuals, the United States and Six 

Nations agree that for injuries done by individuals on either side, 

complaint shall be made by the party injured to the other and such 

prudent measures shall then be pursued as shall be necessary to 

preserve our peace and friendship unbroken. Significantly, the 

Treaty of Canandaigua provides safeguards to both parties, the 

Oneida Nation and the United States. 

As contemplated by the treaty, when non-Federal parties overreach, such as in the case of New York’s use of its own tax codes 

to stop transfer of the lands into trust, the duty of addressing those 

issues falls on the United States pursuant to its treaty obligations. 

The United States sometimes fulfills its obligations, oftentimes it 

does not and, when it does, it frequently comes after the damage 

is done. 

In response to my insistence that local counties follow the law 

with respect to the nation’s sovereignty, the Chairman of the Madison County Board used the public platform of official state of the 

county address to incite extremist and dangerous reactions against 

our nation, referring to me as a third world dictator, with language 

50

which in turn directly affects the quality of life of our members and 

more particularly our children in the communities and schools 

where we are trying best to live peacefully and together. 

In light of the harsh realities faced by Indian nations within our 

local communities, this may be an opportune time for the United 

States to work with Indian nations to develop a framework to ensure the Federal Government’s fulfillment of its trust obligation. 

There is substantial evidence that empowering Tribal governments 

leads to economic success, providing many benefits to surrounding 

communities. In the Oneida situation, the Federal Government’s 

own independent economic study concluded that due to the presence of the Oneida Nation, local communities received back $16.94 

per dollar. 

Some Tribes like the Oneida Nation have assumed important 

governmental functions. For example, creating court systems, fire 

protection, emergency service, housing and educational programs. 

That also relieves, as a result of this the Tribes also relieve local 

governments from having to spend their government dollars spending money on those programs. It is a multiplier effect showing real 

benefits when communities work together. 

We respectfully submit that this Committee ensure that our discussion today leads to the development of a new and constructive 

paradigm to guide Indian nations and the United States for the 

next future generations by creating a new bipartisan American Indian Policy Commission. 

Our recommendations to the commission would address how the 

trust relationship would work to ensure an acceptable level of habitability on the present reservations, on the poorest reservations, 

including the adequacy of education, healthcare, public safety and 

infrastructure. 

It could also address how the trust relationship could work to 

empower Indian nations that are on the cusp of economic self-sufficiency to redefine their trust relationship to fit their needs of success. 

The charge to the commission should not be finalized without additional consideration but it could also include recommendations 

regarding an appropriate mechanism to ensure that the funding of 

critical Indian programs are not subject to arbitrary reductions, potential legislation to create a strong presumption in favor of land 

being accepted into trust at the request of the Tribe, and the potential establishment of additional high level positions within the Administration to represent Indian Country . 

This Committee has already played a central role in advancing 

this discussion through this hearing and for that, we thank you. 

[The prepared statement of Mr. Halbritter follows:]

51

PREPARED STATEMENT OF RAY HALBRITTER, NATION REPRESENTATIVE, ONEIDA

INDIAN NATION


517c1.eps
52


517c2.eps

The consequences of flawed implemrmtation orthe trtlSl responsibility arc many, but the 

resulting impllct on Triblll sovereignty is II centrnl concern to Tribnl governments ncro~~ the 

United States. Although this Congress Wld the current !lnd some past Administl1ltions hnve been 

generally supportive of Tribal sovereignty and have aspired to honor the trust relationship, states 

and local governments are often not inclined to acknowledge the uniquely federal relationship, 

instead ofien exploiting opportunities affirmatively to undermine it. 

Further, recent United States Supreme Court decisions have had the effect of redefining 

Tribal sovereignty and the trust relationship. Some of those decisions have turned the trust 

relationship on its head, emphasi;o;ing its value as a shield from (ederalliability lru;te:td of 

construing it in a manner that would benefit the very p~ople who wore the intended beneficiaries 

ofi\. The trust relationship, inl~nded as a prot~ction ilgainst aggressive action by statns and local 

governmento;, has eroded overtime, making this hearing and the consideration of the trust 

relationship timely and very important. 

However, nothing thaL is said today should ~au~~ any question regarding whether Indian 

governments honor the rule of law. Indian nations and the United States, however, disagree as to 

what that law Is, or what itshauld be. We look to the United States Congress to help avoid 

tensions that can result (rom th05= disagreements. Wh=ther it is in the (000 o(effom in this 

Congress to reverse som~ oflhe United States Supreme Court's holdings, such as the lcgislution 

to address the Court's decision in Can:i~ri, or otherwise, \ve note with eoncem a reluctance of 

some in Congress to act on important initiatives relating to. Tribal rights. I! The need for 

t Carcier! v. Srzltror, 119 S. Ct. I05X (2009). 
53


517c3.eps

Congressional action is magnified where the United States Supreme COUI1 issues opinions that 

are contrary to Indian laws and settled expectations. Suchjudidal dedsions create unnecessary 

tensIon in the federal-tribal relationship that the lrust process is designed to prevent. 

111m hopuful that this hClU"ing mmks the beginning ofa full review ofthe rcderal trust 

responsibility, as well as its impact on Tribal sovereignty. In 2012 we may be entering a new era 

that requires a more nuanced annlysls, taking account oflL changing commercial world within 

which somcTribal nations nourish, ami others do not. Out of this review, rnanyTribal leaders, 

including me, would hope to Stle the establishment ofa new long-lasting framework for Tribal· 

Federal relation~ that resp~ct.s the unique relationship between IndIan natious and the United 

States, instead ofa relationship in which the Federal government fcels it has sole lLuthority to 

define and defend our relationship at its discretion. 

I respectfully sU!:l:cst today thatl','e all ar~ ready for the hard WlJrK. of exploring how to 

arrive at a regime that furthers the spirit of the trust responsibility, while being responsive to the 

diverse needs of all Indian nations who struggle ',vith the prcssur~s ofvaricd local circumstances. 

[fpeople of good will can address foreign conniets and all mann~ ofoomplex social issues in 

nOll-tribal communities, we can succeed in this endeavor. 

In light oftile issues discussed by the othcrwitnc.sses we beard fmm today, part one of 

my testimony diselJ.'iscs some of the practical cldlcnges faeed,by Indian nations, including the 

Oneida Nation, in gaining the benefits ofthe trust relationship. Pal1 two discusses the need for 

'Legislation to address tile implient10ns orllie Core;",.; decision muy 1101 be >lll impc:dimcnllO have larKl 

accepted Into trusl under Ihe lnd1~n Rcorgan17.m1on Acl for ~tll"di~" nations, but tlml is hardty n"'son 10 delny 

possoge opproprlau: and timely legl.lnllon that t"CSl""'" tho.'tan ... qM a~r". Nor should 11 be M""S!a!)' to do ~o al 

tlu: pcrll of other impOri:mllegislnti,,". 
54


517c4.eps

the Uniled States 10 develop a process for pro~cting tribal interests that looks beyond tradiLional 

consultation. Part three explores the need to strengthen relevant and useful govemment-logovernment consultation in light of the increasing sophistication of Tribal governments and the 

inerensingly complex issues that coufront them. And, prut four addresses some ideas for 

constructing 11 new framework forthe trust responsibility that could endure for the next century 

The Foundation of lhe Trust Relationship and Practical Challenges 

Indian Nano"" Face in Locat Commuoities 

For many Indian nations, the federal government's trust responsibllity is grounded in the 

United Stales' fulfillment of its treaty obligations, implemented based upon historic and the 

inherently governmental agreements between each scparalc Indian nmion and the United States. 

How the relationship v.'Orks in practice, however, is complicated by the nctions of non-federal 

parties who regularly insert themselves into matters that should be primarily b~lween the United 

States WId Indiwl nations. 

The nattlre of tile federal relationship with lndion nations is a vital part of the history of 

the United States, some of which is worth considcrins here. 

From the earliest days of the United States, the Founders recognized the importance of 

America's relationship with Native nations and Native peoples. They included lmportant 

referencr:s to those relationship5 in the Constitution.; The 100" Congress rccosnized the 

influence that Native pooples had in the dev~lopment oflhc COllstitution in a lX\ncurrent 

resolution that specifically acknowledged the "historical debL" the United States owes to Indian 

Tribes. 

, S<e, e.g.,Ar!. I,S.Clion 8, Ct.3 (tndl~n Commorce C1.\l<e); Article II, Soction 2, Cl. 2 tTrc.'y Clau,.}. 
55


517c5.eps

[O]n the occasion ofthc 200!h Anniversary of the signing of the United 

States Constitution, Ilcknowledges the historical debt which L'1.is Republiu 

oFlha United States of AmariCll owes 10 the Jroquois Confederacy and 

other Indian Nations rorlheirciemomrtretioo: ofenllght:moo, democratic 

principlc:i or government ?!Id thoirc~amplB ofa fl'OOlIssociation of 

imle!l~ndent lndian nations; •• : 

The Tnditm provisiOl)S in the Constitution wet(! given i:nmediate life in treaties into which 

!he United States entered with Indian n~lions b~!linning with the Treaty with the Dclawnre in 

1778 and continuing through :mothcr J73 treaties. Additionally, in the first decade~ ofthc United 

States. numerous l~ws were enacted addressing the details of the Federal-Tribal relatiortShip.s 

even as the Federal oouris defined ihe Federnl government's trustoo]igatj';m t{l Indhm nllticns.~ 

Because ofthis hi~ljJry, the trust obligatio:! (Iflhc Fwcrnl guvernmc!tt to N~tll'!l peoples 

is fundamentnlly d.i~renl from any other relationship the United Stales has with any other 

distinct group ofpeopJe nnd carries elevoted obligations. As the American Indian Polley Review 

Cornmissi{ln Report slal~d; 

The purpcse behind the IruS( is and alw~>'S has be'cn to OllSllre the survivallllld 

Wlllfsro oflndian tribes and people. TIll:! includes nn abligation to p...-uvide th:;lse 

sef¥ices reqllirea to prot~et:md enlmnce lru:Iian lands, resources, and selfgovemmem,!iIld also includes those e~~nmlli" ~nd ~uuWl p[vg,dm~ lm.l M" 

necessary to r~ise tlw standard of1iving and social well-being ofthe Indian people 

to a level compi1(ablc to the non-Indiansocicty.' 

The United St~te3 trust relntionship with the Oneida Nation derives from the Treaty of 

Canandaigua,. which was ~jgned in 1m betw= the Grand Council ofHaudcnOSlllmee and iii 

represcniatlve orPreside::lt GeQrge W:!5hin~tml. The Tro~ty OfClUll!lldaigua, whic\t is among the 

< S.C0I1.Re,o;.16, IQCtth Congress. 

, Se.!. e.g., TrnIk: and IntCioouls~ Acts oJ 1790. 1793, 1796, 1799, I ~O~, ~nd I ~J4 . 

• &'" ,e,g., CAorvlrec Naritmv. Goorgia,3D U.S. 1 (1g31) •• 

7 American tndian rotic}' Rcyi"w Co"'mi"ion,~ UO (1911). 
56


517c6.eps

oldest orall treaties signed between the United States and Indian tribes, recognizes rights held by 

the Six Nations, that extend beyond federally recognized righ15 Ihal are typically considc:rcd 

within the parameters of the trust responsibility that was initially defined by the Supreme Court 

in JohllSon v. M'lnrosh, 21 U.S. (8 Wheat) 543 (1823), and the Marshall Trilogy.3 

Pre5id~nt Washington was a\lthoriz~d to enter into the Treaty of Canandaigua by Article 

n S~ction 2 of the Constitution orthe Unil!ld Slales, which pennits the President 10 negotiate nnd 

sisn treaties, lind IVants the Scnute authority to ratifY them. The Supremacy Clause orthe 

Constitution, Article VI Clause 2, provides that treatIes and the Federal laws executing and 

implementing those treaties are tho supreme law ofthe land. As sneh, Ihe Treaty ofCanamlaisua 

<md the rights afforded 10 the Oneida Nation under the treaty should provide safeguards from 

udverse aclions by non_fedeml governments. 

It says two things that are most relevant for lod~y's hearing. First, the IrWl)' stutes tilat 

the United States acknowkdg~ the lands reserved 10 the Oneida, and called our reservation, to 

be ollr property; and Ihe United Stutes will never claim our lands, nor disturb us in the free use 

and enjoyment orour lands; and that our reserYation shall remain ours IIntil we choose In Sllll it 

10 the people of the United States. And. with respect to protecting nur lands frnm outside 

intruders, such as states and local communities, the United States and the Oneida Nation agreed 

to the fuJlowing key provision In our treaty: 

• Tho M"",h,lt ·lrit~gy, ' ,000o" crsupn:m~ Cour! op;~;an. pc"nod by Chief Juslioe Jolm M.rsb~l1 between 

1823 and lHJ2, I. oan,ldorcd the 1"SIll foundolion fur tho fcdolllilrust relution'hip ;n Arncrironjur;,prudcnce. The 

M.",h.IITrilagy <:<)",l.laor JUM.rQrlv. U·fnlWh,21 U.S. (8 WhCllt) 543 (1823); ellerake Nmio,,". GM'Si",)O 

u.s. (5 Pet.) I (1831); "nd lI'ore<:,lo, v. GeO'ljifl, 31 U.S. 515 (1832). 
57


517c7.eps

Lest the firm peace nnd friendship now established should be interrupted 

by thc misconduct of individuals, the United Sllltes und Six Nations ngree, 

that for injuries done by individuals on eilher side ••• complaint shall be 

made by the party injured to the other ... and such prudent measures shall 

then be pursued 1I.S shall beneccssary to preserve mlr pe<tce and friendship 

unbroken ••.. 

Significantly, the Treaty of Canandaigua provide safeguards to both partie~ -the Oneida 

Nation and thc United States - which preempt h031110 actions against the other by third-parties, 

including nan-federal governments. Both the Oneida Nation and the United Stutes are dutybound to fulfill their obligations to each other under that treaty. The United States enforces its 

obligations through its trust relationship with the Oneida Nation, and willi the other Nations who 

also are signatories to the treaty. 

NOt\vithstanding the Supromaey oifederal treaties, third parties regularly test the UniM 

States' relationship with the Oneida Nation, 8IlU often in ways that an: intended to interfere witli 

that relationship. 

The trend ornon-federal pnrties clmllenging the federal trust relationship with Triba! 

nations is obvious in New York, where challenges are designed to undennine th ... On ... ida 

Nation's sovereignty. For C1(amplc, when the United States Supreme Court directed in 2005 that 

lhe Oneida Nation it should use the Federal government's administrative process to have its 

homelands accepted into trust on it<> behalf,local taxing authorities created new, special 

nrmngements to impose hefty laxes upon the Nation's homelands, and immediato.:ly sbrted 

foreclosme proccedings caleulatcd to prevcnt the United Statcs lTom fulfilling the Supreme 
58


517c8.eps

court's direcliv~ that lands be taken into truSl.9 This, l111twithstWlding the Oneida Nation's 

staggering e~onomic oontribution 10 the Ia....: base ill (he local cmnmllnity; we are the large:;t 

employer1f ill ourr~ion, with tneva;! majorityofourapproxjmatt:ly4,5()() employees rcsidmg 

in the local community, paying 5aks lax, in~or:!.e tax and properly ta.~c~ amountin~ to 

approximately $140,000,000. 

When non-federal parties overreach, such M In the cnse of the New York's use oflrn Ia....: 

codes to block tra.1sfur of the lands into trusl, the duty of addressing tilOse issues raIls on the 

~~ire,:l States pursuMt to it~ treatyob!lgatkms. Although tbc United Stales ~omelin]{:s fulfills ils 

obligations, o1:entimes it does not -and, when it does, it frequenllyromes toe lale. This shins 

the burden ofpreventillg unlawful intrusions upon the sliouidcrs oflnditill tribes. 'rhe burden 

tribes ofien face in this oircuillstancc includes vilificatlrm and political atI~ks on themr.elves, 

tlI~ir leaders and even their members. 

--_ ..... -

°Fur1h~,.unettl1~ OneidaNruinn !lied 115 ilu>t()!lpJioatitlll, the Stolte of New Yark onnttad special 

legisl.tion wrscting e(:JtI\in Nutioo I.nds. Thotlogi51a1ion 1'equkoo, among PlIler uniq"' rulos, thl!ll~~ "'4'./1 be S~t In 

olle oounty .. irth~ Oneida Nntlo,,'s Innds in til.! ,aunty w~'" tax<exempt. Accordingly, tll~ rn:.;inl!.jltrisdietion and 

tho county •• loul.ted laxos M N.tion lond, 01 R tax ",te that "",urnes ~'C Oncldu Notion "ilt not pay the ~'(CS, 

resulting In nn ""tnoblly inft.tod la~ ",b:. II olT""'ivoly Iriplo.l tho I.~OS thal would be duo under th. I.xing s~!It.m 

u,.dotoowhoro InNcwYort. n .",0 prndu,eslhe lI!o!:i""j .;"",msimoc"ho"'" in rax bii13 ""'~ r~re""mpl., 

doot"'~ Ih~ l;tXinlljllflsdie,ion'; ~'!d<;e{ [br 11m prntMtlpn tp b~ SI4~,~44 ,nd theOn.ida Nali~n', ~lo~r~ ~flno.l 

buds.: item'" beS53!>,3S9. 

10 C"","" New Yo)rk hilS ~ulTh,ed d",;n,~ti~ MIl:romio.ulh~ksovet th~ I", 15 Y"" .... Rcpom 11 ... '" ~"tl!i1"d 

II'"" loss (If llI'9<vximil;¢ly 4,S\llJ j'*'s du<: to Ihe clC:alrc ,,[Grlm$; AI: Fel'" Bos<'. tile ~$ pn ,Umll .. ocld",L:<!-

M.l:;(mj~b:i ill Vlkl<llI!d lbe )os~"'fth;rJ>II'w~ "'fj(lb5 ~l Orn:i.m L;!~ilOO {" fK,"·)ndi.~ b","m'ss tbat tm., ~o rel:ulaa 

to ill. N~tiol!). II! tho ,,":1m oftlw 1= oh!l~r"xim"\dy !il,oOO Job!; in rho :<lgion,l1to Nnticn's role i1H13bilizlnl). the 

regi",,,,! ctnploymentpiclur. cB!1not bo und=!at.ci. Aco",din.g to Ihe Bureuu ofLiliur SIu1i:.t;(!S, eiflJl1QymerJl. grew 

by 1.69 r.I"CO~1 h~Tw~e" 19'90 nnd 2003 in tho Madl""n and Onelda Counl~ reglon. In 1"'rt dllC to \nu clos;~g of 

Gri ms, Air Fo,co B,,~~ ~nd 1M Lo~khccd Martin Pk'U'1t in lito mid-1990 .. employmont In Ondd. County <leCRi"".d 

~13n ~nnunl aver~&. mi. ofO.O! P"rcelll. Th. losses In Onoldn Count~, ~ow.ver, ..,.".., olT,et by ~n "v(:rll£" onnu"l 

emplo)'","n! growth ofO.SS roercC~1 in M.dison County. Thus, Iho two "'limIt..; logelber, ""mbinor! fur • Tt:fX""lcd 

IOlat employment gfO"th ut2,10Q jobs.. During Ihis poriod. ~'C Nation addoo 4,000 jobs, whiell fully ""counts for 

an)' employm<:nt growth reported for ~'" 1M' <:uunly r~gi<>" .nd w.s. omle.! ofl's.! .goinsilite s!rucru(31 ooonomic 

!n, .. "" being '"gi,rercd in olhcr indu,I""" 
59


517c9.eps

We have a vivid example oftlmt vilification at the Oneida Nation. In response to my 

insistence. as the Oneida Nation representative, that local counties follow the Jaw with respect to 

the N~tion's sovereignly, Ihe Chairman ofthe Madison County Board of Supervisors !!Sed his 

official state of the county address to attempt to galv3!lize the Im:aI community against me., 

referring to me as a "[third world dictator]"." This same COllnty, whilG claiming finllncial stmin 

from the Oneida Nution not paying taxes which th~ courts rule were noL owe~, paid Park 

Strategies more than $350,000 per year to lobby you and the executive branch to remove our 

sovereignty, rathcrthan invest the same resources for the bettennent. This oounty claims that 

the Oneida Nation's non·payment of taxes somehow was hurting the counly, even though our 

Nation currently holds roughly 1% of the lands within the oonnty yet roughly 50% oflhe 

county's lands are wholly or partially exempt from the same taxes. 

Tribal sovereignty and the trust responsibility obvionsly arc not understood by some local 

and state elccted officials. It is a signo] to oil of liS thaL we musljoin together as we oollsider 

how 10 improve the Uniled SI .... C5' Irust rcsp~lnsibility and do mOre to en(ru .... Niter undersl3l'1ding 

within our cOllllllunities. 12 

Allhough uo Tribal nation ever sllOuld relyupou the United States to guarantee a positive 

working relationship with state and local governments, a revitalized !ruSl relationship is vitnl 

protection against the very overreaching that it was intended to address. 

"SIT AU"cll1llOli! A. '1;.,inlo; •• 1 I"" toe", rr/"""d '" a" Com"nU" iI'''' 

"Nolw;,h't::",ding tli''''' cl .. 1J,mges, the Nntion ha5 QIU~~ WNJS to COop''''' • ...,ith ,orne or it. neighboring 

so""mmonls on rogul:llory mallo", _ .. , domcru;lnItcJ by cooporat;"" ogre_m_nlS on trutes nnd rcgulallQn bo,ween 

'he Notion and tile Citi .. ofOncid. arul Sherrill. 
60


517c10.eps

The United States Must ReeolLsider How to Promote its Trust Responsibility 

Under such Fedcr~1 policies as Self-Determination and Self-Governance, many Tribes 

have re-asserted increasing oontrol oflheir own destinies, often with spectacular results. 

However, many other Tribes still struggle to gnarantee basic public sarety and health care to thcjr 

citizenry, much less economic opportunity. Where there has been Tribal economic success, thcre 

has also bcCll a growing backlash from other clement.> in the mainstream sociely thllt reel 

threatened by the restoration of Tribal rights and by Tribal prosperity, one explanation for some 

ofwhllt I described above. 

The federal tnlst rel(ltionship has been re1Iffirmed by ne~rly every modmn President, a 

very positive and significant political gesture. In the name of Federal government's trust 

responsibilities towards Tribal nations, President Obama issued ~ Presii.lential Memorandum 011 

November 5, 2009 that enlle<! upon aU executive agencies to develop consultation and 

coordination cfTorts with Tribal government!;. The Memorandum confirmed the unique political 

status of Tribal nations, as established through treaty, legislation, and judicial decisions, and 

called felr a rededicatiou to Presideut Clinton's Executive Order 13175. Executive Order 13175 

calls for consisteut ~nd substantive consuh~tion with Tribal natiolls all thc development lind 

implementation of all policies that have Tribal implications. The Exeoutive Ordl:T was legally 

grounded in the federal trust responsibilities and called for agencies ttl respect Tribal s~lrgovernment, sovereignty, and self-determination. The genesis of that IllSJlcct is rooted in the 

early treDty era when Tribes were regarded as powers to be treated with respect rather than 

quelled and subjuga\.l.'d. 
61


517c11.eps

The lifeblood ofthc unique trust relationship betw~~11 th~ United States and Indian tribes 

Is cOnSUIID.tioll, alld the pathway to a robust trust relationship is likely through consultation that is 

redesigned to better moct the needs orboth parties to the reMionship. Although most modern 

Presidents have recognized the need for meaningful govommcnt-lo-goYemmenl consultation, 

consultation continues to be regarded by agencies as burdensome and an impooimcnt to Federal 

aClion rather than a meehWlism 10 protect Tribal treaty rights nnd nppmprinte Federal deeisionmuking. Matter5 arc further complicated when the Federal government blms the important 

distinction between Tribal consultation and 311 other communication with non-federal interests, 

cytln where consultation with non-tribal parties may be required by law. 

A ellSc in jloint is consultation among parties under Section 106 ofthe National Historic 

Preservation Act, which compels federal agencies to consider the effects oftheir actions 011 

historic or cultuml properties. In certain circumstances, nlocol governmental project ~ponsor 

and an affected Tribe may be consulting with a FedemI agency. In our recent experience at lhe 

Oneida Nlllion, a project sponsor, which soughl Federal funding took steps to evade consultation 

with the Nation, notwithstanding thtl Nlllion's right to be consulted pursuant to the Federal 

agency's consultation obligation under its trust relationship. 

The steps taken by tho 10GaI project sponsor to keep the N,ltion from consultation to 

prolt:\:t clIltlirnIly sigTIificant artifitcts that may haYIl boon buried within the path oflhe project 

were astounding to behold, e~lleci~lIy given that this occurred as recelltly as 201 1. The project 

sponsor, also seeking st~te funding, made untme representations within the state environmental 

clearance process under state law to cause the state to make ct:rtain determinations regarding the 

potentially negative elTects oflhc project that had to be reconsidered by the stare once the 
62


517c12.eps

relevant stale officials became DWILfC of the project sponsor's actions. Ultimately, the Oneida 

Nation and the Federal agency that was funding the project negotiated a programmatic 

agreement. At the end ofthe day, the project wi!! be built. but it took the Oueida Nat[on's 

vigilance to ensure Illat tile law was foHowed. and in this instance its role in ~onSlllting with the 

United States proved to be meaningfnl. Still, a stronger timely response by the Federal 

government wlJUld have set the project sponsor on a correct course mnch sooner. And, happily, 

once there was intervention by appropriate Triba[ liaisons within the Secretary's office. Illal 

oourse correction did occur and a programmatic agreement WlIS exccntcd, although ironiclllly the 

project sponsorrefnsed to sign it because the project sponsor disagreed with Ii definition of 

"triba[ lands" that was set forth in federal law, supported by the Department ofJnsricc and 

upheld by multiple courts. 

We acknowledge that Federal agencies arc nnder significont pressure to fu[fiI[ their 

progmm mandntes to provide funding for needy projects with all deliberate speed, but it is 

important to be certain that the our trust relationship is always at the forefront oflhc process, lest 

it becomes a sticking point when Indian nations become nwore ofthe undertaking and assert their 

right to consult or to objeet to the project. And, in the most blatant eaS<lS, the fuihlTC to en!::!!!::", in 

consultation will only strain govcrnment-to-govcrllment relationships and impede future 

potential cooperatlve efforts between governments. 

Not only is the trust relationship and consultation between the Federal government and 

Indian nations constantly under attack from local governments, but certaill [ocn[ officials in the 

State of New York have gone so far ns to urge New York State Governor Cuomo to repeal the 

State'sTribal consultation policy th<lt was adopted in 2009 to protect important Tribal interests. 
63


517c13.eps

While J am confident that Govrunor Cuomo will not repeul a policy that shows the State's 

Icadcrship and progressive thinking on that score, it is the kind ofdireClI attack against legitimate 

tribal inlerests Ihal is worth noting. We arc hard prc:.~soo to be oble to explain such actions by 

ccrtllin local officials, but it serves as n chilling e)(ample of how the Federal government must 

work with Indian mllions to restore respect fur Tribal treaty rights and its federal trust 

responsibility towards Indian nations.)J 

In light Oflhe harsh realities facw by Indian nations within their local communities, this may be 

an opportune time for the United States to work with Indian nations 10 develop a new Iramework 

to ensure the Federal government's fulfillment of its trust obligati(ln, taking into flCCount the 

unique and disparate needs of Indian governments. 

Thc Trust Rll1Iponsibility, Scl[-Dctermination & Strengtheninl!: 

Gov(!rnm~nt-tu-Governm~nt COIlSl,ltation 

Dc:pcndiog on a spceifie Tribll.lnatian's polltlcol relotionship with the United States and 

the cantext of particular issues, there will be differences afopinion about what the tn)l;t 

respon.~ibmty means, but at II minimum it should make clear the extent o[the Fcdcrnl 

government's obllgntion to ensure thntTribal lands arc habitable by loday's slandards, cl1Suring 

that Indian communities are permitted to create or maintain decont schools, hospitals, public 

safety and infrllSlrueture. It maybe that the primary \'ehicl~ to ensure Ihe fuInIl,"eut oflhose 

obligations is to empower Tribal governments 10 crcat~ an environment hospitable to economic 

development. In mldition, the Federal government should strengthen the government-to-

"See AtiachmcntB. 'Jim"·;"",·,,, B 1,"" Ixm ret"iwd ill tl", CUlI1l11it!tir filr,' 
64


517c14.eps

government relntionsh!p by integrating Ihe Indian volcc more directly into the highest lewis or 

the Fedemllegal and po!lcymaking slrm:turtl. 

Many oftlwse gods !l,lIY bcdifrK:u]t Ie !\.CllieVe ill the eurrelltCllviromlern. As Tribe> 

seek recognition of their sovereign rl,ghts, albers resist, deeming Tribal ~(lvereignty a \In-cat 10 

their own power or sovel'elgnty. Therefore, it \s important to demonstrate that stronger and more 

effective Tribal govenllncnts an: not only good rorTrib<:s, but olso good fur surrounding 

communities, tho Slates withht which the Tribes reside, ami Ihe United States, ns a whole. There 

is already substantial evidence that empowe..-ing Tribal governments kad~ to economic $ltcCcss, 

providing !T~"jily bem:flts to suuOIll1ding cornm;!nitieS. III some ClI5cs" espcciaUy whe.--eTribes 

have assumed:m important governmental or social function (e.g., ~reatingjobs, providing fire, 

police and emergency services. etc.): this h~ been recognized by the impa~kd non·lndiM 

<Xlmmunities. 

The Oneicia Nation's slory is a prime. example of how Slrengthooing Tribal SClvercigrrty 

ami Tribal ecun-:xnii: ~UCCCS3 b~ncllt;; sUlTO'Juding etllTununities. Since 1993. when we opened 

the first legal casino in the State of New York. the Qn(jida Nation has invesltld more than $1 

billion In infi-astrucrure In Central New York. We have spent $2 billion on goods and S<.:rvic!;I/; 

with non-tribal vendors. with much oftlrnt money going to hlisineS5cs in New York Si:lit~ We 

are a major ~Quroe ofemploymcnt in a community where many large emplo~n; ar6 eownsizing. 

Vie have iY"ner~t,"d m,.re Ihan $140 million 'Il income and property taxes forthesmreand IOCllI 

governments. The result is that theOnelda Nation has used the revenues f.-om gaming opern!iar.s 

to improve the lives ant, own people, with relatively little financial assistance from the United 
65


517c15.eps

Slates. Wr:. have invested in housinG, health care and education progrnms for our members, S(l 

that we break the cyde of poverty and dependence, I< 

Moreover, our economic success has driven onr level of sophistication in business 

enterprises and diversilication, including our aquisition and publiCtltion of the Indian Country 

Today Media Network and Four Direction Productions, an animation and film production 

company. Commercial strength anrJ diversification hll.lalso reinforced our ability to determIne 

onr own destiny and to limit our interaction with tile United States to matters that arc central to 

the protection orour inLcrests in cultuml prcscrI'litionlllld the rcstorlltion of land within our 

Reservation boundaries. And, while many Indian nations are similarly situated, many are not, 

requiring a more profound level ofintcrllctioll with the United States within th~ context orthe!r 

trust relatir)Uship. 

I do not suggest that self-sufficiency and commercial and governmental sophistication 

should end the need for th~ trust rela.tionship. Ratllcr, as self-determination yields sclfsuffic!enci'in Indian Country, the trust relationship wiU come to refl~ct thut, und govcmment-IOgovernment relationships and consuitation with Tribes will change as a result, 

Indeed, the HEARTHAet1

" under C(lns:dcrntion by this Congress, is nn e:.:press 

recognition ofth~ need to empower Tribes to diminish their exclusive reliance on Federal 

"Th~Nat!on's ""OI\(\!l\I~""". de ... """"thU" pmvid.job, forth. 1",.1 "",idon!:;. It i.tb~ b"isoftribnl 

s.lf_grn:cmment and ",If-£uffi.i.ney bee.u"" it funds .s"",liul guvt:mmcnt opcrJtiolls, selvices and programs. 

The..., .,rv;co> and progmnlS inolude member hCUWl CO", cducDtion, Icgnl servioes. d~y cure;\lld you!h programs, 

(moily services mid housing. Tile 'Nolion pay' nourly $11 mililon ~nnu"lly for!h""" programs and servi"., .. Too 

fOCI i~ tho! smtc nod 100,'\1 governments SllV' a Int ofmonoy heGII"'. tho N.tion Bov.mmcnl is abl" 10 and OO<::i 

provide so many prosrnms and """ices to ill! membcrs- meals rorthc Kg"", h""tth insunmcc for tioc h""'thy cOld tbe 

infirm, care for !he very young, educalion tc, ~'Vcryon", ""d On un" OIl. Swtc OIld local mon,,), tbot would SO \0 

providing many ofth .. e progrums nnd seT1'ic". to N.tior. member:: cun be devoted inslc.d to persons who .re not 

Nation member::. 
66


517c16.eps

govemment by beingmor~ actively involved in economic development on their lands. They ate 

r~flcc!ions (lfa modem vicw of what the trust responsibility is - empowerIng Tribes to solve 

their own problems and carve their own destiny but alsa protecting Tribes from external for.::cs 

that \Il1dermine Tribal sovereignty. Tn oodiUOl1, t!:e Oneida Nlition amI other Tribes afC aware 

that CUUgro.'ls can clariry Ihll!aw in other impol'tlUit areas ofslgniHcance III Indian Country:i!re 

strengthening theabillty (lfTriiJes tolmv~ land tllkon into trllst SO they con nchkve selfdetermination mld self-sullieieney. 

A'Mncing a New Framework fOI" thc'T'rn~t Responsibility In the 21" Century 

The Oneida Nation's experiences and the testimony thut we have heard today leads m~ 10 

conclude tnal we mayhavnl'l mC'anlngful t>i'l'mtunity to c"'n~jder how to;, cre~'" n ~ew f,llm..,.,,'<l1'k 

for the trust relationship. Such a new ft!lme\VGfk would consider the complexities of the issue. 

the unique relntiollships that Indian nation~ have with the federal govemment, the Impact that 

existing laws have upon the impkmentation ofthe trust relationship, and, challenges to the 

relat.:llnship pased hy other governments. 

Th-::: need ror a rnliclHl.\ vision oftlle trun resp[JIfSiilllitythat Is fully respootf.:l of the 

rights and views oflndiun llations is clear. I re~pectfl111J submit that tills Committee ensures that 

our discussion today leads to therleveloprncnt ofa new and eonSlrucLiv(l p~radiglllio guide 

[milan nations and the Unitcd Stites tor the next ccnlUry by creating a !leW bi·pnrtlsl!n American 

Indian Policy Review CommiS-lion. That Commissio!1 would be eltarged wltll tile responsibility 

01 Tho HEA1tlH Acl i. pending tn t~. Ho",,,, ofRcpresonwtiv,," IUld StmSllO!lS H.1t 205 ~nd S. 703. 

respectively, 
67

The CHAIRMAN. Thank you very much, Mr. Halbritter. 

President Sharp, would you please proceed with your testimony. 

STATEMENT OF HON. DAWN SHARP, PRESIDENT, QUINAULT 

INDIAN NATION 

Ms. SHARP. Thank you, Chairman, distinguished Members of the 

Committee. We truly appreciate the opportunity to appear before 

you today. 

I represent not only the Quinault Indian Nation, but am the 

President of the Affiliated Tribes of the Northwest Indians. And I 

also have a unified and complementary role as Chairman of the 

new Trust Commission on Administration and Reform. So, I hope 

to interweave perspectives into this presentation and testimony, 

representing all three of those hats that I currently wear. 

I would like to begin by addressing the relationship itself that Indian Tribes have with the United States Government. And then I 

want to speak a little to the natural resources, and then wrap it 

up with our people. 


517c17.eps
68

The relationship itself, we have determined out of the Northwest, 

out of the Quinault Indian Nation as well as beginnings of a discussion towards that end at the Commission that we need to define 

trust and trusteeship. It is long overdue for a very clear, succinct 

definition of what that means, not only what it means in the minds 

of those in this Congress, in the minds of those sitting on the U.S. 

Supreme Court, but first and foremost, in the minds of Indian people and Tribal leaders. 

To that end, we are working toward out of the Northwest 

through a series of sovereignty summits and meetings at the Affiliated Tribes of Northwest Indians, in concert with USET, to come 

up with a definition of trust and trusteeship from our perspective. 

And we believe that will be very helpful to not only this Congress, 

but the Court and others to define our perspective. 

Right now, that definition has been diluted, and as pointed out 

by Senator Udall, it is being further eroded through this term of 

the Congress. The old definition is based on this notion of dependency, it is based on this notion of incompetency, that we are wards 

of a guardian. 

We have always been very capable of managing our own affairs 

from the beginning of time. We have always been a competent people. We had very complex ecosystems that we managed as good 

stewards. We had very sophisticated economic structures within 

our communities. We had trade. We had many good things in our 

communities. It was only with the imposition of another sovereign 

into our lands and territories that corrupted that value system, 

that continues to corrupt that value system. 

This last Congress, a bill was passed in the House purporting to 

convey 2,400 acres to a multi-national corporation outside of the 

United States to mine copper in an area that is very sacred to the 

San Carlos Apaches. It is a place where they continue to do sacred 

dances. It is a place where they continue to gather traditional 

foods. An acorn that takes 100 years to mature in that area is 

threatened to be desecrated for profit, for gain, not to benefit those 

within this Country but to benefit those outside of the United 

States. 

It is a sad commentary that in this modern time, even over the 

objections of Indian people and our leadership, we continue to see 

an erosion not only in Congress but in the courts and even within 

the Administration. There are many good friends that we have 

been able to ally with within the Administration. Some that have 

good hearts, good minds, that see things from our value systems. 

But there is a structure in place that, even with the best of intentions and even with the best mind and heart, they are still incapable of discharging their duties along that sacred, solemn commitment that the United States has with Indian people. It is that 

Federal bureaucracy that needs change. 

And it needs change that is guided by sound principles that are 

deeply rooted within the values of our people so that we can not 

only set a good example for today to correct the past wrongs, but 

that we lay a strong foundation for future generations, that when 

they look back at this era and this time, they will see that it was 

that point in history when the United States not only recognized 

69

the past wrongs, but truly viewed Indian people as equal 

sovereigns with their own unique set of values and principles. 

Joe DeLaCruz, our Chair at Quinault, once stated that there is 

no right more sacred than a people to freely govern their lands, 

their people, their territories without external interference. Right 

now, even with self-governance, we are simply managers of Federal 

dollars. Under 638, we administered Federal dollars. We now manage. We cannot spend those dollars in a way where we can freely 

determine our future because of the bureaucratic barriers that we 

continue to confront today. 

So, with having an opportunity to be able to come to this Congress to redefine that relationship and set a new course, we believe 

that we are at a post self-governance era. We will always be selfdetermining, but we need to set a new course on the relationship 

and the definition, and that includes engaging with this Congress 

on agreements, renewed agreements, to build that stronger foundation. 

So, on behalf of the Quinault Nation, the Affiliated Tribes of the 

Northwest Indians and the Trust Commission, we thank you for 

this opportunity. 

[The prepared statement of Ms. Sharp follows:]

PREPARED STATEMENT OF HON. DAWN SHARP, PRESIDENT, QUINAULT INDIAN NATION

Good afternoon distinguished Committee Members and esteemed witnesses joining me today to provide testimony on Fulfilling the Federal Trust Responsibility: 

The Foundation of the Government-to-Government Responsibility. My testimony addresses this topic from several, unified perspectives: as the President of the 

Quinault Indian Nation and President of the Affiliated Tribes of Northwest Indians 

regarding natural resources under authorities of Self-Determination and Self-Governance, and as the Chairperson of the Secretary of the Department of the Interior’s 

National Commission on Indian Trust Administration and Reform. 

First and foremost I would like to applaud this Committee for continuing such a 

vigilant effort to address the plethora of disparities Indian people are forced to deal 

with on a daily basis. It is because of these hearings and the Roundtable Sessions 

that Congress, the Administration and the American public are being educated 

about our issues. Mase’ [Thank you]! 

Prologue and Vision 

Five centuries ago, Europeans relied upon the notion of the ‘‘Doctrine of Discovery’’ to provide a quasi-religious, political justification for colonialism. This Doctrine led to the expropriation and exploitation of the natural resources of this land 

with little regard for the impacts on the cultures and economies of the Indian peoples that had relied upon for them for countless millennia. 

When the United States was founded two and a half centuries ago, alliances were 

sought with Tribal nations to try to free the colonies from European powers. For 

nearly a half century after Independence, the United States entered into treaties to 

formalize relations with Tribal nations. In exchange for promises to protect Tribal 

peoples from depredation and provide for their needs, Tribal nations relinquished 

claims of title to their traditional territories and agreed to relocate to small areas 

of land that were to be set aside for their exclusive use and occupancy. These promises, and subsequent laws such as the General Allotment Act, form the foundation 

of the trust responsibility, a concept that was rooted in the fundamental notion that 

Tribal nations are dependent on the largesse of the dominant government, somehow 

incompetent and incapable of managing their own affairs. 

Yet, even the solemn treaty promises of the United States were broken repeatedly.

• Treachery, fraud, and corruption of Indian agents assigned to serve the needs 

of reservation communities were common.

• Indian children were removed from their homes and placed in boarding schools 

where they were forbidden to speak their native languages.

70

1 American Indian Policy Review Commission Report, 1977, p. 11

• As non-Indians coveted the land and resources such as gold which were found 

on reservations, Tribal nations were forced to relocate or accept diminished land 

bases.

• Tribal lands were flooded to create reservoirs to provide water and power and 

to try to protect non-Indian property.

• A policy of allotment was adopted to ‘‘civilize’’ Indians while opening reservations to settlement and development by non-Indians. The confused and complex 

ownership and occupancy of Indian reservations created a jurisdictional morass 

that allows developers to ignore laws and regulations intended to protect the 

environment and perpetrators of crimes such as rape or the manufacture and 

distribution of illegal substances to evade prosecution.

• Tribal lands have become dumping grounds for hazardous materials that nonIndian communities would not tolerate.

• Tribes are being required to compensate for environmental deterioration caused 

by non-Indian development on and off reservations, infringing upon our prerogatives to utilize reservation resources for the benefit of our own communities.

• When the duty to fulfill treaty obligations became burdensome, the United 

States pursued a policy of termination to try to ‘‘get out of the Indian business’’.

Until just a few decades ago, when a new era of Self-Determination and Self-Governance was ushered in, the Indian policy of the United States was centered on conquest, removal, dislocation, and extirpation. 

The purpose of highlighting this litany of wrongs against Indians is not to dwell 

on the past, but to serve as a prelude to discussion of the future form and substance 

of relations between Indian Tribes and the United States. The trust responsibility 

and government-to-government relationships are central to our deliberations. I say 

‘‘our’’ because decisions cannot be made unilaterally by the United States. Our discussion should include consideration of the implications of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), particularly articles relating to free, prior, and informed consent. As sovereigns, Indian Nations and the 

United States must engage in substantive dialogue to collectively establish a common vision and policy to guide our path to tomorrow. 

In 1977, the American Indian Policy Review Commission issued a report to Congress noting, ‘‘The Relationship of the American Indian tribes to the United States 

is founded on principals of international law . . . a relationship founded on treaties 

in which Indian tribes placed themselves under the protection of the United States 

and the United States assumed the obligation of supplying such protection.’’ 1 This 

relationship is not working! The implementation of the United Nations Declaration 

on the Rights of Indigenous Peoples is essential, the inability to pass amendments 

to the DOI Self-Governance amendments and the lack of funding to allow Tribes to 

protect our borders and communities are but a few of the elements of the current 

dysfunctional trust responsibility to American Indian and Alaska Native peoples. 

The United States trust responsibility has not evolved with the changed political relationship between the United States government and Indian governments. It must 

be changed to reflect the realities in Indian Country in the 21st century. 

The following comments center on Self-Determination and natural resources, the 

particular area on which the Committee is seeking comments from the Quinault Nation:

• A Different Kind of Trust Responsibility. Historical notions of dependency and 

incompetency must be abandoned. Our dialogue should be focused on the forgotten trust responsibility of the United States—the responsibility to support the 

capacity of Tribes to take their place alongside the American system of governments. For natural resources, recognition and acceptance of Tribes as capable, 

responsible resource managers will be essential to enable us to protect our cultures and economies and to work collaboratively at the local, state, regional, national, and international levels to sustain the environment.

• Self-Determination and Self-Governance. The Quinault Nation was one of the 

first Tribes to employ Self-Determination contracting and Self-Governance compacting to improve its ability to manage its natural resources. The devastation 

of our forests, salmon, lands, and waters wrought by decades of mismanagement by the United States could no longer be tolerated and spurred our determination to embark on the newly opened path to Self-Determination. For years, 

buy-Indian and Self-Determination contracts provided a means for us to perform activities in lieu of the Bureau of Indian Affairs (BIA). We had little latiVerDate 0ct 09 2002 14:07 Dec 11, 2012 Jkt 076551 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 S:\DOCS\76551.TXT JACK
71

tude to establish objectives and goals, but were rather limited to those imposed 

and supported by the federal administration and BIA. We found it necessary to 

turn to Congress to enable us to establish a demonstration program for a Tribal 

forestry program that was designed to address resource management problems 

that had accumulated over decades of BIA administration. Our ability to develop our own programs and priorities for forestry, fisheries, health, and social 

programs has been greatly enhanced through the use of Self-Governance compacting. Quinault was in the first tier of Tribes to participate in the Self-Governance program. While Self-Governance has provided us with the flexibility to 

tailor programs to best fit the needs of our own communities, several improvements, noted in H.R. 2444, the Department of the Interior Self-Governance 

Amendments, are needed.

The Quinault Indian Nation compacted to manage our forest lands but we have 

not received the additional funding or increases in our formula to manage existing 

obligations. We are further challenged by the increased cost of fuel to perform these 

services.

• A New Focus for Federal Administration: Support for Tribal Self-Government.

There is a need to expand our vision of the nature of the trust responsibility 

to see beyond the accustomed, narrow confines of fiduciary duties and obligations. In some respects, this requires the term trust responsibility to be turned 

on its head. Instead of a policy that perpetuates paternalism and dependency, 

trust responsibility should be viewed as the responsibility to administer Indian 

Affairs in a manner deserving of the trust of Indian Country. The time has 

come to transform the role of the United States from guardian to enabler, to 

make the primary function of the trustee that of supporting and assisting the 

capacity of Tribes to truly exercise Self-Determination. Tribes that are ready for 

this step should have the opportunity to establish relationships with the United 

States that move beyond tutelage to a position of sovereign equality. To make 

this transformation, fundamental, seminal issues must be addressed.

Paternalistic procedures, practices, and policies for management of the trust corpus that perpetuate paternalism, dependency, and bureaucracy while trying to 

shield the United States from financial liability for mismanagement have debilitating effects on the ability of Tribes to manage and develop their own lands and 

resources and greatly increased the costs of federal administration. Federal bureaucracy and administration has left Indian Country dirt poor despite the abundance of 

natural resources that blesses many reservations. 

These administrative measures should be reformulated through a collaborative 

process between Tribal governments and the United States with the over-arching 

objective of strengthening the ability of Tribes to fully and exclusively exercise their 

inherent sovereign authorities to manage the lands and resources within reservation 

boundaries. 

This discussion should include clarification that Indian lands are private lands 

that are held in trust with a fiduciary responsibility of the United States to manage 

the trust corpus for their beneficial owners. Trust lands are not subject to the federal nexus that triggers application of laws and regulations intended to govern public lands, such as NEPA and the ESA. 

Tribal authority to make and enforce laws and regulations of their own making, 

including taxation authority, against Indians, non-Indians, and non-Tribal members 

alike must become a reality. 

Currently, the Department of the Interior is in the position of being both ‘‘pitcher’’ 

and ‘‘umpire’’ for trust administration; independent oversight is needed. 

Consideration should also be given for the need for, and value of, establishing a 

high-level ombudsman position, to help overcome recalcitrance in federal administration of Indian Affairs.

• Land consolidation and Jurisdiction. A major focus of trust responsibility and 

government-to-government relations should be directed at assisting Tribes to restore the integrity of reservation land bases as permanent homelands for their 

peoples and to establish viable land bases for newly federally-recognized Tribes. 

Funding provided under the recent Cobell settlement could provide critical resources for land consolidation, but efforts and priorities must be Tribally, not 

administratively-driven. Chaos caused by the Supreme Court’s decision in 

Carcieri must be rectified legislatively.

• Off-Reservation Co-Management. The ability of Tribes to co-manage resources 

within their traditional ceded territories off reservation needs and deserves support. Arbitrary restrictions, such as those employed by the EPA for development 

of Tribal water quality programs restrict use to on-reservation activities, failing 

72

to recognize Tribal needs to protect off-reservation resources that are essential 

to their ability to exercise treaty and other federally reserved rights. The United 

States should provide financial, technical, and political support for Tribal governments to formally engage and substantively participate in international deliberations involving natural resources and environment, e.g., climate change, 

biodiversity.

• Consultation. Federal entity requirements for consultation with Tribal governments on matters pertaining to Tribal rights and interests should be made mandatory and enforceable. However, it is crucial, that consultation be implemented 

as part of a true government-to-government process that involves respectful dialogue to identify and try to overcome differences, not as a pro-forma checklist 

that reserves decisionmaking authority solely to the federal entity.

• Formalize Trust Agreements. The foundations for trust administration of natural resources need to be poured. Consideration should be given to enacting a 

suite of laws pertaining to Tribal natural resources. The National Indian Forest 

Resources Management Act and Indian Agriculture Act enunciated the federal 

trust responsibility and set forth certain standards for management. Comparable laws are needed for fish and wildlife, energy, and water resources.

Fiduciary standards expressed in Section 303 of the Department of Interior manual should be cooperatively and collectively reviewed by Tribal and administrative 

representatives and revised as needed. 

The ability to establish formal contractual intergovernmental agreements between 

the United States and Tribes which would clarify duties, obligations, and responsibilities should be explored. These Agreements would establish performance standards for programs operated by both Tribes and federal agencies. A variety of arrangements could be considered, such as the option for Tribes to place their lands 

in a special form of trust that would protect them from taxation or jurisdictional 

intrusions by local, state, and federal governments. This option could reduce burdens, liabilities, and costs of federal administration and remove impediments in securing financing for Tribal natural resource development. The concept of converting 

Tribal trust lands to a new type of ownership, Tribal restricted fee, is presently 

under discussion by the House of Representatives (American Indian Empowerment 

Act of 2011 , H.R. 3532). President Rob Porter (Seneca Nation of New York) testified 

at a recent hearing on this proposed legislation: ‘‘[I]t would do this by enabling Indian nations and Tribes to voluntarily convert some or all their existing Tribal lands 

from Tribal trust lands held by the United States to Tribal restricted fee status held 

by the Tribal government and thereby enjoy the enhanced flexibility that attaches 

to restricted fee land holdings. That flexibility should produce great savings in time 

and cost that otherwise would burden development on Tribal trust land.’’ The advantages and disadvantages, pros and cons of providing such an option deserve 

thoughtful, serious deliberation by Tribal governments, Congress, and the Administration. 

National Commission on Indian Trust Administration and Reform 

The work of the National Commission on Indian Trust Administration and Reform 

is underway. As Chairperson I am joined by a cadre of Leadership and Academia 

who has listened and been engrained in the trust reform issues for many decades. 

Ours is a charge that we all consider very serious and with the help of this Committee, we will take the first step to improving the system that we can all agree 

is ‘‘not working’’! We held our first meeting on March 1–2, 2012 and will begin to 

convene field Listening Sessions in June 2012. We are seeking the input of Indian 

Country regarding the Department’s administration and management of trust assets and carrying out its fiduciary trust responsibility for individual Indians and 

Tribes. 

Again, thank you to the Committee for allowing me to testify before you today 

on this important issue.

The CHAIRMAN. Thank you very much, President Sharp. 

Vice President Baptiste, will you please proceed with your testimony. 

STATEMENT OF HON. BROOKLYN BAPTISTE, VICE–CHAIRMAN, 

NEZ PERCE TRIBAL EXECUTIVE COMMITTEE 

Mr. BAPTISTE. [Greeting in Native tongue.] To the Chairman and 

the Committee, I would like to thank you for allowing us this opVerDate 0ct 09 2002 14:07 Dec 11, 2012 Jkt 076551 PO 00000 Frm 00076 Fmt 6633 Sfmt 6601 S:\DOCS\76551.TXT JACK
73

portunity to provide testimony, but also such a large target but 

also something that is important to us that provides a mechanism 

for Tribes to be resilient and be able to define themselves in the 

manner that we would like rather spiritually, culturally, you know, 

economically. 

I think it is important as far as the Tribes are concerned that 

we are allowed to define those for ourselves and, in this Committee, I know you have had a series of roundtables and discussions that allow the Tribes to kind of provide testimony and provide some guidance for the Tribes themselves to allow you yourself 

and the Committee members to provide that guidance that we give 

you to the rest of your peer group as well. To provide leadership 

for us is important, and we thank you for your leadership and the 

Committee’s leadership in that manner. 

As was kind of mentioned in the previous panel, you know, the 

Nez Perce Tribe and many other Tribes recently settled lawsuits 

with the United States over Government’s mismanagement of the 

trust assets of the affected Tribes. The settlement was the culmination of six years of litigation that had been preceded by working 

groups, meetings that were trying to avoid the court system. 

The Nez Perce Tribe itself, you know, finds itself in the courtroom a lot. We would rather not. We do not think that helps. We 

do not find that the justice for the Tribes is found in the court system. We think it is in this specific forum right here that we can 

find the things that we need to define that trust obligation rather 

than depending on an individual that is not versed in Indian law 

or in the culture and life ways of Indian people as a whole across 

the Nation. 

So, we would like to, you know, we thank the Administration and 

we thank this Committee as well because you are providing that 

avenue for us as well. 

So, the issue I would like to talk, to discuss, today is how to 

move the relationship between Tribes and the United States forward to a better place. I believe we can use the remarkable 

achievement of the settlement, these lingering trust claims, as momentum to focus on the collaborative efforts of the Tribes and the 

United States on truly fixing the trust relationship, eliminate the 

need for costly, protracted litigation and the us versus them mentality. 

The Nez Perce Tribe would propose several courses of action that 

it believes would help enhance and strengthen the trust relationship between the United States and the Tribes. These actions include one, clear and unequivocal affirmation of Tribal sovereignty 

and the treaty relationships between the parties, two, prioritization 

of funding for Tribally related Federal programs operated by the 

Tribes, three, Congressional and Executive Branch supported efforts to protect long-standing Indian law concepts that are being 

eroded through the courts, four, reaffirmation and support of Indian self-determination, and last, continued refinement of government-to-government consultation set forth in Executive Orders and 

Executive Memorandums of past and current Administrations. 

We feel that the last consultation process which served the 

Tribes is one of most important because that communication will 

provide the foundation for the understanding between Tribes. In 

74

my past seven years as a leader of my people, I have noticed that 

you do not always have to agree. But if you understand, it makes 

things a lot easier. 

So, as a Tribal leader on this panel, I think we have the ability 

to transcend some issues or some topics that are not always talked 

about, the hardships of social, the social wrongs in our Country but 

also in our own communities as well, the spiritual detriment that 

the Tribes are facing now that affect their Tribes long standing. 

Kind of an analogy I have used before was that before we met 

as government to sovereigns we would bring pipes and that would 

represent our belief system, our walk with the creator, God, Jesus, 

whichever way you looked at it. That was our way of agreeing and 

saying this is going to be our truth to our word and it was a written language that we were foreign to but we believed and had faith 

and trust in these treaties that we signed that are held, of course, 

supreme law, you know, by the Constitution. 

We no longer bring pipes no more because that does not, it is 

hard to quantify that type of relationship. So, now we bring attorneys, our people are attorneys, and we bring that to the table to 

try to implement the letter of the law when it is our treaties, the 

trust obligation with a Federal agency or in that it is with the sovereign as well as the States. 

So, we hope that the protection of our treaty is a protection, that 

the implementation of those treaties will continue. I think this subject is fairly large compared to what we can offer. But I appreciate 

the opportunity to come here and allow some insight to us as leadership. I know you take a larger burden representing us and the 

public sector as well and we appreciate all that do you for the 

Tribes and the Nations. 

[Closing in Native tongue.] Thank you. 

[The prepared statement of Mr. Baptiste follows:]

PREPARED STATEMENT OF HON. BROOKLYN BAPTISTE, VICE-CHAIRMAN, NEZ PERCE

TRIBAL EXECUTIVE COMMITTEE

Honorable Chairman and members of the Committee, as Chairman of the Nez 

Perce Tribal Executive Committee, I would like to thank you for the opportunity to 

provide testimony on behalf of the Nez Perce Tribe to this Committee on the issue 

of the trust responsibility of the United States to Indian tribes. As you may know, 

the Nez Perce Tribe, and many other tribes, recently settled lawsuits with the 

United States over the government’s mismanagement of the trust assets of the affected tribes. The settlement was the culmination of six years of litigation that had 

been preceded by scores of meetings and workgroups that had been formed to try 

and address the problem outside of a courtroom setting. This entire effort was a 

long and arduous process that consumed the time and resources of the tribes involved. I would like to thank the United States and the Obama administration for 

finally being willing to engage the tribes on this issue with a goal towards resolving 

the long standing dispute. 

It is good that the settlement of the trust mismanagement cases provide for a 

path forward and a ‘‘clean slate’’ between the tribes and the United States with regard to its management of the trust assets of tribes and how future disputes over 

those assets will be handled. However, the settlement does not address the larger 

question of the current status of the trust relationship between tribes and the 

United States. The process itself was indicative of some of the issues that are adversely affecting the important trust relationship between tribes and the United 

States. Although the Nez Perce Tribe was well represented in the litigation and settlement by the Native American Rights Fund and our own in-house legal counsel, 

at one point in the settlement process, I found myself in a room alone with approximately 20 governmental representatives working on finalizing an agreement. At 

that time I thought that this was very symbolic of how tribes sometimes feel when 

75

working with the government, outnumbered and facing an opponent with unlimited 

resources. A common phrase among tribal leaders when referencing the relationship 

with the United States is that tribes used to bring weapons to battle with the 

United States and now we bring a quiver of attorneys. That is a sign of a relationship that is not functioning properly, especially a trust relationship. So the issue 

I would like to discuss today is how to move the relationship between tribes and 

the United States forward to a better place. I believe we can use the remarkable 

achievement of the settlement of these lingering trust claims as momentum to focus 

the collective efforts of the tribes and the United States on truly fixing the trust 

relationship and eliminate the need for costly protracted litigation and the ‘‘Us 

versus them’’ mindset that exists. 

The Nez Perce Tribe would propose several courses of action that it believes would 

help enhance and strengthen the trust relationship between the United States and 

tribes. These actions include: (1) clear and unequivocal affirmation of tribal sovereignty and the treaty relationships between the parties, (2) prioritization of funding for tribally related federal program and programs operated by tribes, (3) Congressional and Executive Branch supported efforts to protect longstanding Indian 

law concepts that are being eroded through the courts, (4) reaffirmation and support 

of Indian Self-Determination and (5) continued refinement of government to government consultation set forth in Executive Orders and Executive Memorandums of 

past and current administrations. 

I. Reaffirmation of Tribal Sovereignty and Treaty Relationships 

Based on the U.S. Constitution, treaties, statutes and the historical, political and 

legal relationship with the Indian tribes, the United States has assumed a trust responsibility to Indian people. Those laws and relationships serve as the backdrop 

for the government-to-government relationship. Rep. Dale Kildee has long advocated 

that Congress, as well as the other branches of government, remember that Article 

VI of the United States Constitution states in part that ‘‘This Constitution, and the 

Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall 

be the supreme Law of the Land; and the Judges in every State shall be bound 

thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’’ Despite this constitutional affirmation of the supremacy of treaties, 

many tribes continually face threats of diminishment or disestablishment of their 

reservations and lands reserved under their treaties with the United States as well 

as erosion of the rights and privileges reserved under those documents. This issue 

is very critical when it comes to the land base of tribes and how those lands are 

threatened through rights-of-ways or easements or various other means. For any 

government, land is a foundational block. However, the fee to trust process usually 

takes years or in some cases decades because of different policies of different administrations and concerns over gaming. This places tribes in the position of being a 

sovereign that is taxed by a subdivision of a state. This prospect is repugnant to 

tribal governments. Congressional action or an executive order from the President 

that clearly reaffirms those treaty relationships and the inherent sovereignty of 

those tribes and the rights reserved by those tribes would be a good start in helping 

preserve what was intended to be permanent relationships between the Tribes and 

the United States. 

II. Prioritization of Funding 

In light of the foundational nature of the relationship between the tribes and the 

United States, it is frustrating to Tribes when each budget cycle presents the question of whether tribal programs or federally related tribal programs will be properly 

funded or funded at all. The fact that spending on tribal programs is discretionary 

in nature runs counter to the obligations and promises that arise from the trust and 

treaty relationship of the parties. Although progress has been made on increasing 

funding for agencies and programs that provide services in Indian country such as 

the Bureau of Indian Affairs and Indian Health Service as well as increased commitments to properly fund services provided by tribes such as housing and health 

clinics, it is time to move to a new paradigm in relation to federal funding of tribally 

related programs. Funding for these programs should not be dictated by political 

party affiliation or which party is in office but rather it should be a baseline spending obligation that the United States committed to long ago in return for the development of this country. 

III. Support of Indian Law Principles Under Scrutiny by Courts 

Many of the principles and tenets of the trust relationship have been affirmed, 

developed, and refined through the United States court system. However, tribes believe this trust relationship is currently being eroded in the courts today. A 2009 

76

empirical study done by Matthew Fletcher of Michigan State University College of 

Law entitled: ‘‘Factbound and Splitless: Certiorari and Indian Law’’ shows that since 

the Supreme Court issued its decision in California v. Cabazon Band of Mission Indians in 1987, the Supreme Court has decided against tribal interests in more than 

75 percent of cases. This rate of success is lower than the success rate of criminal 

defendants. With this trend, Tribes are relying more on the Executive Branch as 

well as Congress to be aware of, protect, and uphold the longstanding principles of 

Indian law. The Carcieri decision is a perfect example of this dynamic but it is by 

no means the only example. In addition, there are several cases that are before or 

could come before the United States Supreme Court that could have negative consequences for Indian Country in a way similar to the Carcieri decision. If the courts 

are not going to protect these long-standing principles, the Executive and Congressional branches of the government must take up the issue. Discussion is needed on 

ways to address these issues through other avenues such as Congress exercising its 

plenary power in support of tribal issues and in honoring the Federal Government’s 

trust responsibility. 

IV. Reaffirmation of Self-Determination 

Another aspect of the trust relationship that deserves congressional attention is 

the policies on self-determination. There is need for work by the United States in 

formulating strategies to provide effective reaffirmation and support by the Executive Branch and Congress of the policy of Indian Self-Determination. Stephen Cornell and Joseph P. Kalt recently published a paper entitled: ‘‘American Indian Selfdetermination: The Political Economy of a Successful Policy’’. The authors believe 

that there is an alarming trend away from support for tribal self-determination 

which has been a success. They state: ‘‘The policy of self-determination reflects a 

political equilibrium which has held for four decades and which has withstood various shifts in the party control of Congress and the White House. While Republicans 

have provided relatively weak support for social spending on Indian issues when 

compared to Democrats, both parties’ representatives have generally been supportive of self-determination and local self-rule for tribes. Analysis of thousands of 

sponsorships of federal legislation over 1970–present, however, finds the equilibrium 

under challenge. In particular, since the late 1990s, Republican congressional support for policies of self-determination has fallen off sharply and has not returned. 

The recent change in the party control of Congress calls into question the sustainability of self-determination through self-governance as a central principle of federal 

Indian policy.’’ It is important to begin to discuss strategies to reverse this trend 

and continue forward with the major progress in promoting self-determination that 

has been made on this issue since the administration of President Nixon. 

V. Government-to-Government Consultation 

Finally, and maybe most importantly, there needs to be continued emphasis and 

attention paid to the consultation process that occurs between tribes and the United 

States. When the United States makes decisions and implements those decisions 

through the Executive Branch, there can be an impact. Tribal issues are not confined simply to the Bureau of Indian Affairs. Tribes work with many agencies on 

many issues. For example, the Nez Perce Tribe is a natural resource intensive tribe 

having connections with over 11 national forests. The relationship between the Nez 

Perce Tribe and the United States Forest Service is extremely important. The Nez 

Perce Tribe has a connection through its treaty with one out of every 20 acres of 

forest service land or 6 percent of the entire national forest system. In addition, the 

Nez Perce Tribe works daily with the Bureau of Land Management, the United 

States Park Service, the Department of Energy through our work on the Hanford 

Nuclear Reservation, the Bureau of Reclamation, the Department of Commerce, the 

Department of Health and Human Services, the Army Corps of Engineers, the U.S. 

Fish and Wildlife Service and many others. The Nez Perce Tribe relies on its government-to-government relationships to ensure that the rights and privileges of the 

Nez Perce Tribe are protected and preserved. However, despite the best education 

efforts of tribes, many decisions are made by federal agencies without thoughtful 

consideration of the impact these decisions will have on a tribe and without proper 

consultation with the affected tribes. In truth, consultation should be a foundational 

component of decision-making by any federal agency because of the trust relationship that exits. Tribes believe there is a lack of accountability in this area when 

agencies make decisions and the decision to consult is too individually driven. If the 

will of the persons in charge are to consult, consultation happens. If the will is not 

there, tribes have to fight to force proper agency consultation when consultation 

should just be how business is conducted regardless. President Obama has worked 

to increase meaningful consultation and accountability during his tenure. Those efVerDate 0ct 09 2002 14:07 Dec 11, 2012 Jkt 076551 PO 00000 Frm 00080 Fmt 6633 Sfmt 6621 S:\DOCS\76551.TXT JACK
77

forts need to continue and be supported by Congress through legislation and oversight. 

Thank you for the opportunity to speak here today on this issue. Although this 

is a vast topic that cannot be covered in one hearing, the Nez Perce Tribe does believe that there are ways that Congress and the Executive Branch can work in coordination to reaffirm and improve the trust relationship it has with tribes.

The CHAIRMAN. Thank you very much, Mr. Baptiste. 

Ms. Atcitty, please proceed with your testimony. 

STATEMENT OF SHENAN ATCITTY, LEGAL COUNSEL, 

JICARILLA APACHE NATION 

Ms. ATCITTY. Thank you, Mr. Chairman. Aloha. 

The CHAIRMAN. Aloha. 

Ms. ATCITTY. I am Shenan Atcitty. I am from the Navajo Nation 

and I am a partner with the law firm of Holland & Knight. I have 

had the honor and privilege to represent the Jicarilla Apache Nation for more than 15 years and am happy to be here with your 

today. President Pesata sends his regrets that he could not be here 

but is very thankful for your holding this very important hearing. 

A lot has been said today about the case involving the Jicarilla 

which is now pending before the United States Court of Federal 

Claims. We filed the case, the nation filed the case, more than a 

decade ago. So, we have been in the case for quite a while. 

It is a pretty broad case involving breach of the Federal Government’s duties with respect to management of their natural resources. The case has been broken into several phases. We just 

completed trial on Phase 1 which involves the trust funds for a particular period. 

When we were before the Supreme Court last year, it was shocking and disappointing to hearing the Associate Solicitor General 

stand before the Justices and deny the existence of an enforceable 

trust relationship. I commend the panel before me which discussed 

a lot of the underpinnings and the principles. But in real life time, 

to hear that with your client in a case of significant importance, it 

was very disheartening. 

Equally disheartening was the reaction from the Justices. It is 

almost as if they are willing to throw out decades and generations 

of case law regarding the trust responsibility and the fact that we 

have what would otherwise, has otherwise been considered, an enforceable trust duty when the Government is managing Tribal 

trust funds and Tribal trust mineral resources. There had been no 

doubt that certainly that is a fiduciary relationship. 

But the particular issue in our case had to do with discovery. In 

our case, we had filed a motion to compel the Government to 

produce certain documents that it had claimed were protected by 

the attorney-client privilege. We were able to work out, the nation 

was able to work out, an accommodation for part of the documents 

at issue. But there still remains a set that the Government claimed 

were protected by the attorney-client privilege. 

That forced us to go to court and to file a motion before the court, 

the motion to compel. We prevailed at the trial court. The Government appealed and the Federal Circuit supported our position and 

upheld the trial court’s ruling. And the ruling was based on the fiduciary exception, a legal principle, a long-standing legal principle, 

78

which would allow a trustee to see communications relating to how 

the trustee, would allow the beneficiary to see communications on 

how the trustee is managing the trust assets. That is what private 

fiduciary’s get, banks who manage your money, you are entitled to 

see that information. 

But for a lot of unfair reasons that we believe that were not substantiated, the Court ruled against us. We think that is very damaging. It has been very detrimental to the trust relationship. You 

have heard professors and practitioners explain the practical terms 

of what this decision has done and we think Congress should take 

corrective action and fix that decision. 

In our written testimony we propose a narrow, streamlined fix. 

We think Congress could get an amendment to the American Indian Trust Reform Act and allow trustees, allow Indian trustees, 

to discover and see those types of communications. That is only 

fair. It is the right thing to do. And we look forward to working 

with the Committee to do that. 

My remarks also cover some other areas where we probably need 

more Congressional oversight and attention with respect to management of natural resources and land decisions. Even outside the 

litigation context there are still challenges there. And a lot of it is 

bureaucratic resistance. Perhaps some form of ADR that is compelled by statute. 

Some other hammer needs to be placed on the executives so, they 

know what to do but, unfortunately, when they are trying to avoid 

liability, those issues tend to surface higher and get more attention 

than actually fulfilling trust responsibilities and duties. 

And with, I will conclude my remarks. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Pesata follows:]

PREPARED STATEMENT OF HON. LEVI PESATA, PRESIDENT, JICARILLA APACHE NATION

I. Introduction 

On behalf of the Jicarilla Apache Nation (‘‘Nation’’), I am Levi Pesata and I serve 

as President of the Jicarilla Apache Nation. I would like to thank the Committee 

for convening this hearing to discuss Indian Energy Issues. The Nation is a federally recognized Indian tribe located in north-central New Mexico. Eighty-five (85) 

percent of the tribal population resides on the Jicarilla Apache Reservation (Reservation), mostly in the town of Dulce, which serves as our tribal headquarters. We 

have a tribal population of nearly four thousand (4,000) members and our Reservation consists of approximately one (1) million acres of trust land. 

We have been blessed with abundant natural resources such as oil and gas, timber, water, and fish and wildlife. Fortunately, our Reservation was not subjected to 

the disastrous Allotment Policy initiated in the 19th Century. As a result, we do 

not face the difficult checker-board jurisdictional challenges encountered by those 

Tribes and individuals whose lands were broken apart (and in many instances lost) 

as part of that Federal Policy. Certainly, this consequence has been beneficial to 

protect and enhance our sovereign governance over our lands and to facilitate our 

energy development initiatives over the years. Yet, given our extremely rural location, the considerable public health and welfare needs of our people, as well as the 

fact that we provide governmental services not only to our tribal members but for 

those living near or travelling through our Reservation, the Nation has a heightened 

need to generate revenue to provide essential governmental services on our Reservation as well as to the surrounding rural region. Thus, we rely heavily on the development of our natural resources, primarily our oil and gas resources, to raise revenue to fund our government and provision of essential governmental services. The 

Federal Government has significant trust responsibilities and duties to protect our 

trust land and trust resources and to ensure that we obtain the maximum value 

for our resources. 

79

1The Delaware Nation still holds the chain of friendship with the United States though the 

Nation was long ago removed from its original country to Oklahoma. 

Because of the Federal Government’s failure to fulfill its trust responsibilities and 

duties owed to the Nation, we have been compelled to sue our trustee in various 

forums for breaching those trust responsibilities and duties. In one of our cases, an 

issue was recently decided by the U.S. Supreme Court which greatly diminished the 

Trust Responsibility. This decision has broad implications for all Indian tribes and 

is one that Congress should immediately correct. I am pleased to present the Nation’s testimony on the very important issue of the United States fulfilling the Trust 

Responsibility to Indian tribes. 

II. Background: the Origin and Foundation of the Federal Trust

Responsibility 

The United States has a special trust responsibility to Indian tribes, and the Federal trust responsibility has its roots in the foundation of the American Republic. 

In the early years of our Nation’s history, the British, French, Spanish, and Russians had colonies and military forces in North America. These colonial powers entered into treaties and agreements with Indian nations. The United States sought 

to secure the friendship and allegiance of Indian tribes, so the American Republic 

sought to enter into its own treaties with Indian tribes. 

In a 1778 Treaty, the United States established a military alliance with the Delaware Nation. The United States pledged to preserve ‘‘perpetual peace and friendship’’ and ‘‘guarantee to the . nation of Delawares, and their heirs, all their territorial rights in the fullest and most ample manner’’ so long as the Delaware ‘‘hold 

fast the chain of friendship now entered into.’’ Treaty with the Delaware Nation, 

1778. The United States was anxious to repudiate accusations made by its enemies 

(Great Britain) that it sought to ‘‘extirpate’’ the Delaware and ‘‘take possession of 

their country.’’ 1

In the Northwest Ordinance of 1787, Congress pledged ‘‘good faith’’ and protection 

for Indian tribes:

The utmost good faith shall always be observed towards the Indians, their lands 

and property shall never be taken from them without their consent; and in their 

property, rights and liberty, they shall never be invaded or disturbed, unless in 

just and lawful wars authorized by Congress; but laws founded in justice and 

humanity shall from time to time be made, for preventing wrongs being done 

to them, and for preserving peace and friendship with them...

(The Northwest Ordinance was followed by years of war with the Indians in Ohio, 

which only ended when all of their lands had been ceded and they were removed 

to Indiana—the original Indian territory.) 

In the formative period of the United States, Secretary of War Henry Knox explained that violence by U.S. citizens against Indians violated those treaties and endangered the peace:

[W]hite inhabitants on the frontiers of North Carolina in the vicinity of Chota 

on the Tenessee River have frequently committed the most unprovoked and direct outrages against the Cherokee Indians . . . . [T]his unworthy conduct is 

an open violation of the treaty of peace made by the United States... [and] 

have arisen . . . to an actual although informal war of the white inhabitants 

against the Cherokees . . . . [T]he unjustifiable conduct... has most probably been dictated by the avaricious desire of obtaining the fertile lands possessed by the said Indians . . . . [T]he United States have pledged themselves 

for the protection of the said Indians within the boundaries described by the 

treaty and that the principles of good faith, sound policy and every respect 

which a nation owes to its own reputation and dignity require if the union possess sufficient power that it be exerted to enforce a due observance of the said 

treaty . . . . [U]nless this shall be the case the powerful tribes of the Creeks, 

Choctaws, and Chickasaws will be able to keep the frontiers of the southern 

states constantly embroiled with hostilities, and that all other tribes will have 

good grounds... for waging perpetual war against the citizens of the United 

States....

Report of Secretary Henry Knox, July 18, 1788. Thus, Federal protection of Indian tribes and Indian lands was essential to maintain the peace of the new 

American Republic.

In 1791, President George Washington, in his third annual address, explained 

that Congress must protect Indian tribes from violence committed against them by 

U.S. citizens. President Washington told Congress, ‘‘[E]fficacious provision should be 

80

made for inflicting adequate penalties upon all those who, by violating [Indian] 

rights, shall infringe the treaties and endanger the peace of the Union.’’

As an adjunct to America’s colonial legacy, the United States asserted title to the 

13 colonies based on land grants from England. It was recognized that Indian tribes 

held the right of occupancy to the lands undisturbed by the assertion of fee title by 

the Federal Government, except that Indian tribes could not alienate Indian lands 

without the permission of the United States. President Washington signed the first 

Indian Non-Intercourse Act into law to manage Indian land cessions under Federal 

authority: The Act of July 22, 1790 provides:

[N]o sale of lands made by any Indians, or any nation or tribe of Indians within 

the United States, shall be valid to any person or persons, or to any state, 

whether having the right of pre-emption of those lands or not, unless the same 

shall be made and duly executed at some public treaty, held under the authority 

of the United States.

Shortly after the passage of the Act, President Washington explained its import 

to the Seneca Nation:

I am not uninformed that the six Nations have been led into some difficulties 

with respect to the sale of their lands since the peace. But I must inform you 

that these evils arose before the present government of the United States was 

established, when the separate States and individuals under their authority, 

undertook to treat with the Indian tribes respecting the sale of their lands. But 

the case is now entirely altered. The general Government only has the power, 

to treat with the Indian Nations, and any treaty formed and held without its 

authority will not be binding. Here then is the security for the remainder of 

your lands. No State nor person can purchase your lands, unless at some public 

treaty held under the authority of the United States. The general government 

will never consent to your being defrauded. But it will protect you in all your 

just rights.

American State Papers 142 (1823).

President Jefferson agreed with Washington’s views on the issue of Indian lands 

and reauthorized the Indian Non-Intercourse Act in the Act of March 30, 1802, 

which provided:

[N]o purchase, grant, lease, or other conveyance of lands, or of any title or claim 

thereto, from any Indian, or nation, or tribe of Indians, within the bounds of 

the United States, shall be of any validity, in law or equity, unless the same 

be made by treaty or convention, entered into pursuant to the 

constitution....

Accordingly, the United States asserted fee titles to lands within its borders, outside the borders of the original 13 colonies, and protected the Indian right of occupancy or the beneficial interest in the land. 

In the Louisiana Purchase Treaty, President Jefferson agreed that existing international treaties with the Indian tribes would be honored, until the United States, 

by mutual consent, had negotiated its own treaties with Indian tribes. Specifically, 

the Treaty provides:

The United States promise to execute Such treaties and articles as may have 

been agreed between Spain and the tribes and nations of Indians until by mutual consent of the United States and the said tribes or nations other suitable 

articles shall have been agreed upon.

Louisiana Purchase Treaty, Art. VI (1803). In the aftermath of the War of 1812, 

the United States agreed to treat with the Indian tribes on the same basis as it had 

before the War. Specifically, in the Treaty of Ghent, Great Britain sought to protect 

Indian interests and secured the concession that:

The United States of America engage to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom they may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, 

and privileges which they may have enjoyed or been entitled to in one thousand 

eight hundred and eleven previous to such hostilities.

Treaty of Ghent, Art. XI (1815). Following the Treaty of Ghent, the United States 

entered into a series of ‘‘peace and friendship’’ treaties with numerous Indian tribes. 

For example, the Treaty with the Sioux of the Lakes, 1815, provides:

81

Every injury, or act of hostility, committed by one or either of the contracting 

parties against the other, shall be mutually forgiven and forgot.

There shall be perpetual peace and friendship between all the citizens of the 

United States of America and all the individuals composing the said tribe . and 

all the friendly relations that existed between them before the war, shall be, 

and the same are hereby renewed.

The undersigned chiefs and warriors, for themselves, and their said tribe, do 

hereby acknowledge themselves and their aforesaid tribe to be under the protection of the United States, and of no other nation, power, or sovereign, whatsoever.

Taken together with the United States’ assertion of title over Indian lands outside 

the original 13 colonies, the United States’ treaty and statutory pledges of protection 

to Indian nations form the foundation of the Federal trust responsibility. 

In the seminal Cherokee Nation cases, the State Legislature of Georgia sought to 

expropriate the treaty protected lands of the Cherokee Nation and force the Cherokee Nation to dissolve or remove beyond its borders. In Cherokee Nation v. Georgia, 

30 U.S. 1 (1831), the Supreme Court denied jurisdiction over the case, explaining 

that it was a ‘‘political’’ controversy beyond the court’s power and that the Cherokee 

Nation, as an Indian tribe, could not be considered a ‘‘foreign’’ nation within the 

meaning of the Constitution:

Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted 

whether those tribes which reside within the acknowledged boundaries of the 

United States can, with strict accuracy, be denominated foreign nations. They 

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 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.

The Supreme Court explained the importance of these early treaty relations and 

the meaning of the United States’ protection in Worcester v. Georgia:

[T]he strong hand of government was interposed to restrain the disorderly and 

licentious from intrusion into their country, from encroachments on their lands, 

and from the acts of violence which were often attended by reciprocal murder. 

The Indians perceived in this protection only what was beneficial to themselves—an engagement to punish aggressions on them. It involved practically 

no claim to their lands, no dominion over their persons. It merely bound the 

Nation to the British Crown as a dependent ally, claiming the protection of a 

powerful friend and neighbour and receiving the advantages of that protection 

without involving a surrender of their national character....

The same stipulation entered into with the United States is undoubtedly to be 

construed in the same manner. They receive the Cherokee Nation into their favour and protection. The Cherokees 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.

Worcester v. Georgia, 31 U.S. 515, 517–518 (1832). The Worcester Court explained 

further:

This treaty... [in] its essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war, and ascertain the boundaries 

between them and the United States.

The Treaty of Holston, negotiated with the Cherokees in July, 1791, explicitly 

recognising the national character of the Cherokees and their right of self-government, thus guarantying their lands, assuming the duty of protection, and of 

course pledging the faith of the United States for that protection, has been frequently renewed, and is now in full force.

To the general pledge of protection have been added several specific pledges 

deemed valuable by the Indians. Some of these restrain the citizens of the 

United States from encroachments on the Cherokee country, and provide for the 

punishment of intruders.

The treaties and laws of the United States contemplate the Indian territory as 

completely separated from that of the States, and provide that all intercourse 

with them shall be carried on exclusively by the Government of the Union.

82

The Indian nations had always been considered as distinct, independent political communities retaining their original natural rights as undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any 

other European potentate . . . . The very term ‘‘nation,’’ so generally applied 

to them, means ‘‘a people distinct from others.’’ The Constitution, by declaring 

treaties already made, as well as those to be made, to be the supreme law of 

the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among the powers who are capable 

of making treaties. The words ‘‘treaty’’ and ‘‘nation’’ are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth.

Worcester v. Georgia, 31 U.S. at 519. In short, the Supreme Court acknowledged 

the original sovereign status of native nations and recognized the treaties as evidence of the Constitution’s acknowledgement of Indian nations. The United States 

extended Federal protection to Indian nations to prevent encroachment on Indian 

lands by its own citizens, and consequently, to preserve the peace. 

The Trust Responsibility as a Colonial Sword 

At times in the past, the United States used the Federal trust responsibility as 

a sword to strip Indian tribes of their lands in violation of treaties. In Lone Wolf 

v. Hitchcock, 187 U.S. 533 (1903), the Chief of the Kiowa Tribe objected to the sale 

of so-called ‘‘surplus land’’ on the Kiowa Reservation, despite the fact that the Treaty with the Kiowa, 1867 required 3⁄4 adult male consent to any further sale of tribal 

lands. The Supreme Court refused the challenge, explaining:

Now, it is true that in decisions of this court, the Indian right of occupancy of 

tribal lands, whether declared in a treaty or otherwise created, has been stated 

to be sacred, or, as sometimes expressed, as sacred as the fee of the United 

States in the same lands....

But the right which the Indians held was only that of occupancy. The fee was 

in the United States, subject to that right, and could be transferred by them 

whenever they chose. The grantee, it is true, would take only the naked fee, 

and could not disturb the occupancy of the Indians; that occupancy could only 

be interfered with or determined by the United States. It is to be presumed that 

in this matter the United States would be governed by such considerations of 

justice as would control a Christian people in their treatment of an ignorant 

and dependent race. Be that is it may, the propriety or justice of their action 

towards the Indians with respect to their lands is a question of governmental 

policy, and is not a matter open to discussion in a controversy between third 

parties, neither of whom derives title from the Indians....

Plenary authority over the tribal relations of the Indians has been exercised by 

Congress from the beginning, and the power has always been deemed a political 

one, not subject to be controlled by the judicial department of the government. 

Until the year 1871 the policy was pursued of dealing with the Indian tribes 

by means of treaties, and, of course, a moral obligation rested upon Congress 

to act in good faith in performing the stipulations entered into on its behalf. 

But, as with treaties made with foreign nations the legislative power might pass 

laws in conflict with treaties made with the Indians.

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not 

only justify the government in disregarding the stipulations of the treaty, but 

may demand, in the interest of the country and the Indians themselves, that 

it should do so. When, therefore, treaties were entered into between the United 

States and a tribe of Indians it was never doubted that the power to abrogate 

existed in Congress, and that in a contingency such power might be availed of 

from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.

Under the Lone Wolf doctrine, the United States sold millions of acres of Indian 

lands as ‘‘surplus lands,’’ supposedly not needed by Indian tribes. From 1887 to 

1934, Indian nations lost more 90 million acres of land to the Allotment Policy at 

issue in Lone Wolf, and although the United States ended the Allotment Policy, precious little land has been restored. 

In 1934, Congress, through the Indian Reorganization Act, provided that tribal 

governments should have the right to veto any use or disposition of their land in 

the absence of tribal consent. Specifically, Section 16, discussing powers of Indian 

83

tribes, provides, ‘‘In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest... the 

following rights and powers: . . . to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent 

of the tribe.’’ 25 U.S.C. sec. 476. 

Historical abuses of the Federal trust responsibility were limited in the 20th Century by the Courts and Congress. For example, in Shoshone Tribe v. United States, 

299 U.S. 476 (1937), the Shoshone Tribe sued the United States for allowing the 

Arapaho Tribe to live on and claim a one-half interest in the Wind River Reservation, which had been reserved to the Shoshone by Treaty. The United States argued 

that the Treaty had a provision to allow for the settlement of friendly Indians on 

the reservation, so the placement of another tribe, such as the Arapaho, had been 

contemplated by the treaty. The Supreme Court rejected that argument:

Power to control and manage the property and affairs of Indians in good faith 

for their betterment and welfare may be exerted in many ways and at times 

even in derogation of the provisions of a treaty. The power does not extend so 

far as to enable the government to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation 

to render, just compensation; * * * for that would not be an exercise of 

guardianship, but an act of confiscation. The right of the Indians to the occupancy of the lands pledged to them may be one of occupancy only, but it is as 

sacred as that of the United States to the fee. Spoliation is not management.

Accordingly, the Shoshone Tribe Court authorized an award of damages by the 

court below on remand in accordance with the 5th Amendment. 

Similarly, in Sioux Nation v. United States, 448 U.S. 371 (1980), the Supreme 

Court held that the United States Congress had not acted in good faith as a trustee 

when it took the Black Hills from the Sioux Nation. Rather, the Federal Government had engaged in an exercise of dishonorable dealing by taking the Sioux Nation 

land without just compensation. Accordingly, the Supreme Court ruled that the 

Sioux Nation was entitled to compensation under the 5th Amendment. 

The Federal Trust Responsibility as a Shield 

At times, the Federal trust responsibility has been used as a shield to protect Indian tribes from third-party depredations. For example, in United States ex rel. 

Hualapai Indians v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941), the United 

States sued Santa Fe Railroad for possession of the aboriginal Indian land of the 

Hualapai and for back rent from Santa Fe Railroad for its trespass on the lands. 

The Court ruled in favor of the United States and the Hualapai explaining:

Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered 

with by the United States . . . . [T]he Indian right of occupancy is considered 

as sacred as the fee simple of the whites . . . . It would take plain and unambiguous action to deprive the Walapais of the benefits of that policy. For it was 

founded on the desire to maintain just and peaceable relations with Indians. 

The reasons for its application to other tribes are no less apparent in case of 

the Walapais, a savage tribe which in early days caused the military no end 

of trouble.

The Court found no clear congressional action extinguishing the Hualapai title to 

the land, the Railroad surrendered the land to the United States, and the Court ordered an accounting for back rents due to the Tribe. 

The United States has also acted to protect tribal mineral interests and natural 

resources, and when Federal law provides protection for Indian lands and mineral 

leases, lessees must strictly comply with the law. In United States v. Noble, 237 U.S. 

74 (1915), the United States sued Noble for entering into an unauthorized lease 

with Quapaw Indian allottees. The Court explained the United States authority to 

act on behalf of the Quapaw:

The Quapaws are still under national tutelage. The government maintains an 

agency, and, pursuant to the treaty of May 13, 1833 (7 Stat. at L. 424), an annual appropriation is made for education and other assistance (37 Stat. at L. 

530, chap. 388). In 1893, the Quapaw National Council made provision for allotments in severalty which were to be subject to the action of Congress, and in 

the act of ratification of 1895 Congress imposed the restriction upon alienation 

which has been quoted. The guardianship of the United States continues, notwithstanding the citizenship conferred upon the allottees; and, where Congress 

has imposed restrictions upon the alienation of an allotment, the United States 

84

has capacity to sue for the purpose of setting aside conveyances or contracts by 

which these restrictions have been transgressed.

The allottees had authority to lease their lands for ten years, and the allottees 

had been induced to enter into a series of overlapping mineral leases of ten years 

for five years in a row, with the final lease being an overlapping lease for a term 

of twenty years. The Court viewed the overlapping leases in an unfavorably: ‘‘The 

practice, to say the least, is an abnormal one, and it requires no extended discussion 

to show that it would facilitate abuses in dealing with ignorant and inexperienced 

Indians... .’’ The Noble Court held that Congress had not authorized ‘‘overlapping leases’’:

The rents and royalties were profit issuing out of the land.. It was the intent 

of Congress that the allottees, during the period of the restriction, should be secure in the actual enjoyment of their interest in the land. The restriction was 

removed only to the extent specified; otherwise, the prohibition against alienation remained absolute....

The allottee, as we have seen, is under an absolute restriction with respect to 

his reversion for a period of twenty-five years from the date of his patent. In 

the light of this restriction, and of the governmental policy which induced it, 

there is sound reason for construing the power as not authorizing anything 

more than a lease in possession, as well understood in the law. At common law, 

as the government points out, it was the established doctrine that a tenant for 

life, with a general power to make leases, could make only leases in possession, 

and not leases in reversion or in furturo. He was not authorized by such a 

power to make a lease to commence ’after the determination of a lease in being. 

Such a lease was deemed to be reversionary. A general power to lease for a certain number of years without saying either in possession or reversion, authorizes only a lease in possession, and not in futureo. Such a power receives the 

same construction as a power to make leases in possession. What is expressed 

in the one is understood in the other....

We are unable to see that the allottee under the power in question has any better position. The protection accorded by Congress, through the restriction upon 

the alienation of the allottee’s estate—modified only by the power to lease as 

specified—was not less complete, because the limitation was not in the interest 

of a remainderman, but was for the benefit of the allottee himself as a ward 

of the Nation. The act of 1897 gives him authority ’to lease’ for a term not exceeding the stated limit. Taking the words in their natural sense, they authorize leases in possession, and nothing more. The language does not compel the 

recognition of leases which are to take effect in possession many years after 

their execution, if, indeed, it could be assumed that they were not intended to 

be concurrent. Such leases certainly violate the spirit of the statute, and according to the analogies of the law, they violate its letter.

The Court found that the ‘‘overlapping leases’’ violated the congressional requisites for the Indian land leases, and accordingly, the Court held that the leases 

were void. 

The Scope of Federal Laws Are Sometimes Limited to Protect the Federal Trust 

Indian treaties, statutes, executive orders, court decisions and administrative rulings provide a body of law that forms the backdrop for the trust responsibility and 

the Federal trust is a venerable doctrine with roots reaching to the foundation of 

the American Republic. On occasion, the Supreme Court has limited the scope that 

Federal laws would otherwise have in Indian country, based upon the Federal trust 

responsibility. 

For example, in Ex Parte Crow Dog, 109 U.S. 556 (1883), the Supreme Court held 

that the United States did not have authority to try Crow Dog for the murder of 

Spotted Tail, a well recognized Lakota Chief, because the treaty reserved crimes by 

one Indian against another to tribal justice systems. The Supreme Court explained:

And congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.’ It is equally 

clear, in our opinion, that these words can have no such effect as that claimed 

for them. The pledge to secure to these people, with whom the United States 

was contracting as a distinct political body, an orderly government, by appropriate legislation thereafter to be framed and enacted, necessarily implies, having regard to all the circumstances attending the transaction, that among the 

arts of civilized life, which it was the very purpose of all these arrangements 

to introduce and naturalize among them, was the highest and best of all—that 

85

of self-government, the regulation by themselves of their own domestic affairs, 

the maintenance of order and peace among their own members by the administration of their own laws and customs. They were nevertheless to be subject to 

the laws of the United States, not in the sense of citizens, but, as they had always been, as wards, subject to a guardian; not as individuals, constituted 

members of the political community of the United States, with a voice in the 

selection of representatives and the framing of the laws, but as a dependent 

community who were in a state of pupilage, advancing from the condition of a 

savage tribe to that of a people who, through the discipline of labor, and by education, it was hoped might become a self-supporting and self-governed society.

Accordingly, the Court held that the general Federal statutes against murder did 

not apply in the killing of one Lakota Indian by another, since the 1868 Treaty with 

the Sioux Nation reserved such crimes to tribal law. 

In the area of taxation, the Supreme Court decided in Squire v. Capoeman, 351 

U.S. 1, 7–10 (1956), that the proceeds of timber sales from allotted trust lands on 

the Quinault Indian Reservation were not subject to Federal capital gains taxes. 

The Court explained: ‘‘The Government urges us to view this case as an ordinary 

tax case without regard to the treaty, relevant statutes, congressional policy concerning Indians, or the guardian-ward relationship between the United States and 

these particular Indians.’’ The Court agreed that, outside the areas governed by 

treaty and remedial legislation, Indians are citizens and in ordinary affairs of life 

are treated as other citizens. Yet, the Court found that taxation of Indian trust 

lands was the subject of treaty and remedial legislation:

Congress, in an amendment to the General Allotment Act, gave additional force 

to respondents’ position. Section 6 of that Act was amended to include a proviso—

That the Secretary of the Interior may, in his discretion, and he is authorized, 

whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such 

allottee a patent in fee simple, and thereafter all restrictions as to sale, 

incumbrance, or taxation of said land shall be removed and said land shall 

not be liable to the satisfaction of any debt contracted prior to the issuing of 

such patent * * *.

The Government argues that this amendment was directed solely at permitting 

state and local taxation after a transfer in fee, but there is no indication in the 

legislative history of the amendment that it was to be so limited. The fact that 

this amendment antedated the federal income tax by 10 years also seems irrelevant. The literal language of the proviso evinces a congressional intent to subject an Indian allotment to all taxes only after a patent in fee is issued to the 

allottee. This, in turn, implies that, until such time as the patent is issued, the 

allotment shall be free from all taxes, both those in being and those which 

might in the future be enacted.

The first opinion of an Attorney General touching on this question seemed to 

construe the language of the amendment to Section 6 as exempting from the 

income tax income derived from restricted allotments. And even without such 

a clear statutory basis for exemption, a later Attorney General advised that he 

was—

(U)nable, by implication, to impute to Congress under the broad language of 

our Internal Revenue Acts an intent to impose a tax for the benefit of the 

Federal Government on income derived from the restricted property of these 

wards of the nation; property the management and control of which rests 

largely in the hands of officers of the Government charged by law with the 

responsibility and duty of protecting the interests and welfare of these dependent people. In other words, it is not lightly to be assumed that Congress 

intended to tax the ward for the benefit of the guardian.

Two of these opinions were published as Treasury Decisions. On the basis of 

these opinions and decisions, and a series of district and circuit court decisions, 

it was said by Felix S. Cohen, an acknowledged expert in Indian law, that it 

is clear that the exemption accorded tribal and restricted Indian lands extends 

to the income derived directly therefrom. These relatively contemporaneous official and unofficial writings are entitled to consideration....

The wisdom of the congressional exemption from tax embodied in Section 6 of 

the General Allotment Act is manifested by the facts of the instant case. Respondent’s timber constitutes the major value of his allotted land. The Government determines the conditions under which the cutting is made. Once logged 

86

off, the land is of little value. The land no longer serves the purpose for which 

it was by treaty set aside to his ancestors, and for which it was allotted to him. 

It can no longer be adequate to his needs and serve the purpose of bringing him 

finally to a state of competency and independence. Unless the proceeds of the 

timber sale are preserved for respondent, he cannot go forward when declared 

competent with the necessary chance of economic survival in competition with 

others. This chance is guaranteed by the tax exemption afforded by the General 

Allotment Act, and the solemn undertaking in the patent. It is unreasonable to 

infer that, in enacting the income tax law, Congress intended to limit or undermine the Government’s undertaking. To tax respondent under these circumstances would, in the words of the court below, be at the least, a sorry 

breach of faith with these Indians.

In short, the Federal trust responsibility provides the overarching principle for 

Federal law relating to Indian trust lands, natural resources, and trust property. 

Other Federal law must be interpreted in light of the Federal trust responsibility 

when it applies to Indian lands, natural resources, trust property, or tribal self-government. 

Federal Accountability Under the Federal Trust Responsibility 

In the 20th Century, the Supreme Court has held that the United States should 

be held to the exacting standards of a fiduciary in its treaty and trust relationships 

with Indian tribes. In Seminole Nation v. United States, 316 U.S. 286, 297 (1942), 

the Seminole Nation sued the United States for failing to protect the treaty payments and annuities due to the Nation. The Supreme Court, relying on the traditional standards for common law trustees, explained:

It is a well established principle of equity that a third party who pays money 

to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to his trust, is 

a participant in the breach of trust and liable therefor to the beneficiary. The 

Seminole General Council, requesting the annuities originally intended for the 

benefit of the individual members of the tribe, stood in a fiduciary capacity to 

them. Consequently, the payments at the request of the Council did not discharge the treaty obligation if the Government, for this purpose the officials administering Indian affairs and disbursing Indian moneys, actually knew that 

the Counsel was defrauding the members of the Seminole Nation.

Furthermore, this Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people. In carrying out its treaty obligations with the Indian 

tribes the Government is something more than a mere contracting party. Under 

a humane and self imposed policy which has found expression in many acts of 

Congress and numerous decisions of this Court, it has charged itself with moral 

obligations of the highest responsibility and trust. Its conduct, as disclosed in 

the acts of those who represent it in dealings with the Indians, should therefore 

be judged by the most exacting fiduciary standards. Payment of funds at the 

request of a tribal council which, to the knowledge of the Government officers 

charged with the administration of Indian affairs and the disbursement of funds 

to satisfy treaty obligations, was composed of representatives faithless to their 

own people and without integrity would be a clear breach of the Government’s 

fiduciary obligation.

(Emphasis added). Accordingly, the Supreme Court remanded the case back to the 

lower courts with instructions to determine whether the United States had made 

payments with the knowledge that they would be wasted and a provide a recovery 

for the Seminole Nation, if that were the case. 

he Federal trust responsibility has also been a means to hold the United States 

accountable for its management of Indian resources , when Congress has created a 

statutory framework for management of those resources. In United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II), the Supreme Court held that individual Indian 

allottees could sue the United States for breach of trust based on mismanagement 

and waste of timber resources where Congress had enacted a statute providing a 

comprehensive framework for management of the timber resources and the primary 

elements of a common law trust were present: a trustee (the United States), a beneficiary (Indian allottees), and a trust corpus (Indian timber, lands, and funds). The 

Court explained:

The timber management statutes, 25 U.S.C. 406–407, 466, and the regulations 

promulgated thereunder, 25 CFR Part 163 (1982), establish the ‘‘comprehensive’’ responsibilities of the Federal Government in managing the harvesting of 

87

2 34 Op. Att’y Gen. 171 (1924). 

3 U.S.C. § 396a–396g. 4 United States v. 9,345.53 Acres of Land, Etc., 256 F. Supp. 603 (W.D.N.Y. 1966). 5 Kerr McGee v. Navajo Nation, 471 U.S. 195, ll (1985). 

6 United States v. 9,345.53 Acres of Land, Etc., 256 F. Supp. at 605 (quoting 25 U.S.C. sec. 

396a–396d). 7 Kenai Oil and Gas v. Dept. of Interior, 671 F.2d 383 (10th Cir. Utah). 8 25 C.F.R. § 211.1(a).

Indian timber. The Department of the Interior—through the Bureau of Indian 

Affairs—exercises literally daily supervision over the harvesting and management of tribal timber. Virtually every stage of the process is under federal 

control . . . . [T]he statutes and regulations now before us clearly give the Federal Government full responsibility to manage Indian resources and land for the 

benefit of the Indians. They thereby establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities....

Moreover, a fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and property belonging to Indians. All 

of the necessary elements of a common-law trust are present: a trustee (the 

United States), a beneficiary (the Indian allottees), and a trust corpus (Indian 

timber, lands, and funds). ‘‘Where the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship 

normally exists with respect to such monies or properties (unless Congress has 

provided otherwise) even though nothing is said expressly in the authorizing or 

underlying statute (or other fundamental document) about a trust fund, or a 

trust or fiduciary connection.’’...

Our construction of these statutes and regulations is reinforced by the undisputed existence of a general trust relationship between the United States and 

the Indian people. This Court has previously emphasized ‘‘the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.’’ This principle has long dominated the 

Government’s dealings with Indians.

Thus, in the 20th Century, the Supreme Court drew on common law trust principles to ensure the United States’ accountability for the management of Indian 

lands, natural resources and trust property. 

The Federal Trust Responsibility and the Indian Minerals Leasing Act 

In 1924, U.S. Attorney General Harlan F. Stone ruled that executive order Indian 

lands could not be leased as public lands because the governing Indian tribe owned 

the beneficial interest in the mineral estate. 2

In 1938, Congress enacted the Indian Mineral Leasing Act (IMLA) to provide general governance of mineral leasing on Indian lands. 3 Federal Courts explain that: 

‘‘[T]he United States, acting to safeguard the Indians in the conduct of their affairs, 

has established a comprehensive statutory and regulatory scheme covering mineral 

leasing on tribal lands.’’ 4 The basic purpose of the IMLA is to ‘‘maximize tribal revenues from reservation lands.’’ 5 The IMLA provides that:

[Tribal lands] may, with the approval of the Secretary of the Interior, be leased 

for mining purposes, by authority of the tribal council... for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities, that [l]eases for oil and or gas-mining purposes... shall be offered to 

the highest responsible qualified bidder at public auction or on sealed bids. 6

Under the IMLA, the Secretary serves as both the administrator and the trustee 

of tribal government oil and gas resources. Acting for the Secretary, the BIA 

Superintenden must take the Indian tribe’s best interests into account when making 

any decision involving leases on tribal lands, and has broad discretion to consider 

all factors that may affect tribal interests, including long-term economic interests, 

conservation of tribal mineral resources, and production. 7 The Secretary’s regulations implementing the IMLA explain: 

These regulations are intended to ensure that Indian mineral owners desiring 

to have their resources developed are assured that they will be developed in a 

manner that maximizes their best economic interests and minimizes any adverse environmental or cultural impacts resulting from such development. 8

88

9See Kenai Oil and Gas v. Dept. of Interior at 607–608 (The leases in question, entered into 

in violation of the provisions of sections 396a, 396b, 396c, and 396d... are void). 

Oil and gas leases on Indian lands entered into under the authority of the IMLA, 

and which violate the IMLA are void. 9

The IMLA and its implementing regulations establish a comprehensive Federal 

law framework for the management of Indian trust resources, and the BIA and the 

Interior Department are involved in the daily management of Indian mineral resources under the Act. The basic elements of a common law trust are present: the 

trustee (the United States), the beneficiary (the Indian tribe), and the trust corpus 

(the Indian minerals, lands, money and funds). Thus, the IMLA imposes fiduciary 

obligations on the United States acting through the Secretary in order to maximize 

mineral revenues for Indian tribes. 

In Jicarilla Apache Tribe v. Supron Energy, Southland Royalty, and Secretary 

Hodel, 782 F.2d 855 (10th Cir. 1986), the Jicarilla Apache Tribe sued Supron, 

Southland and Secretary Hodel for failing to properly value and account for oil and 

gas royalties due to the Jicarilla Apache Tribe under IMLA mineral leases. Comparing the IMLA to the timber statues and regulations at issue in Mitchell II, the 

10th Circuit en banc explained:

Leasing of minerals located on Indian reservations is also a creature of federal 

statute. As in timber harvesting, the federal government’s role in mineral leasing is pervasive and its responsibilities comprehensive. The Indian Mineral 

Leasing Act of 1938, 25 U.S.C. Secs. 396a–396g (1976), requires the Secretary 

to: set the ‘‘terms’’ and ‘‘conditions’’ for leasing, id. Sec. 396b; approve leases, 

id. Sec. 396a; establish lease sale procedures, id. Sec. 396b; reject unsatisfactory 

bids, id.; require satisfactory performance bonds of lessees, id. Sec. 396c; promulgate rules and regulations governing ‘‘all operations’’ under leases, id. Sec. 

396d; and approve leases for subsurface storage when necessary to avoid waste, 

or to promote conservation of resources, or to protect tribal welfare, id. Sec. 

396g. The evident purpose of the statute is to ensure that Indian tribes receive 

the maximum benefit from mineral deposits on their lands through leasing.

This interpretation is supported by the Act’s legislative history. When the Act 

was proposed, the Secretary of the Interior urged that the legislation be enacted 

because ‘‘it is not believed that the present law is adequate to give the Indians 

the greatest return from their property.’’ Senate Report No. 985 at 2 (1937); 

House Report No. 1872 at 2 (1938). Congress responded to the need to ensure 

that the Indians’ welfare be protected and their natural resources be managed 

to the tribes’ maximum benefit by emphasizing the Secretary’s fiduciary obligations, directing the Secretary to approve lease sales only when they are ‘‘in the 

interest of the Indians.’’

Interior has promulgated extensive regulations for managing leases under the 

Act. See 25 C.F.R. pt. 211 (1982). The regulations stress that the Secretary 

must act in the best interests of the tribes. See, e.g., id. Secs. 211.3(b), .6(a), 

.9(b)(1), .12(a), .19, .21(a), .22, .27. Additional regulations, published in 30 

C.F.R. Part 221, require the government to maintain comprehensive records of 

price and production, and to determine royalties. 30 C.F.R. Sec. 221.12. These 

regulations detail in exhausting thoroughness the government’s management 

and regulatory responsibilities. See id. pt. 221.

Because the statutes and regulations contain such an explicit and detailed enumeration of duties, in my view Mitchell II compels the conclusion that Congress 

intended the Secretary to be a trustee.

The 10th Circuit ruled that the Secretary breached his trust responsibility to the 

Jicarilla Apache Tribe by failing to administer royalty payments for the Tribe’s gas 

resources in a manner that would maximize the return to the Tribe. In addition, 

the Court upheld the trial court’s determination that the Secretary had breached 

his trust responsibility by failing to insure that lessees complied with the terms of 

tribal oil and gas leases and by being negligent in monitoring for potential drainage 

by lessees. 

The Administration’s Stated Policy 

For the past 30 years and more, the Executive Branch and Congress have promoted the Federal government-to-government relationship with Indian tribes. The 

guiding executive branch pronouncement on this policy is President Clinton’s Executive Order 13175 (2000), which directs Federal agencies in their dealings with Indian tribes to be guided by the fundamental principles that:

89

The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, 

Executive Orders, and court decisions. Since the formation of the Union, the 

United States has recognized Indian tribes as domestic dependent nations 

under its protection. The Federal Government has enacted numerous statutes 

and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.

Our Nation, under the law of the United States, in accordance with treaties, 

statutes, Executive Orders, and judicial decisions, has recognized the right of 

Indian tribes to self-government. As domestic dependent nations, Indian tribes 

exercise inherent sovereign powers over their members and territory. The 

United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal 

trust resources, and Indian tribal treaty and other rights.

The United States recognizes the right of Indian tribes to self- government and 

supports tribal sovereignty and self-determination.

More specifically, agencies are directed to ‘‘respect Indian tribal self-government 

and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribes.’’ The Bush and Obama Administrations have pledged to 

honor the Clinton Executive Order on Consultation and Collaboration with Indian 

Tribal Governments. 

III. Breach of Trust Case—Fiduciary Excpetion 

In January 2002, the Jicarilla Apache Nation filed a breach of trust suit against 

the Federal Government in the U.S. Court of Federal Claims (CFC) for mismanagement of the Nation’s trust funds and trust assets. The trust funds at issue are held 

in trust and managed by the United States for the Nation. 

From December 2002 to June 2008, the Government and the Nation engaged in 

an alternative dispute resolution process. During this time, the parties produced 

thousands of documents. The Government withheld 226 potentially relevant documents claiming that they were protected from disclosure by the attorney-client privilege, the attorney work-product doctrine, or the deliberative-process privilege. 

With no apparent end to the ADR process, in 2008 Nation requested that the case 

placed on the active litigation docket. The CFC divided the case into phases for trial 

and set a discovery schedule. The first phase involves the Government’s management of the Nation’s trust fund accounts from 1972 to 1992 and our claim that during this period the Government failed to invest its trust funds properly, by failing 

to maximize returns on our trust funds, investing too heavily in short-term maturities, and failing to pool our trust funds with other tribal trusts. During the discovery process, the Nation filed a motion to compel the Government to produce the 

226 withheld documents. The Government withdrew its deliberative-process privilege claim and agreed to produce 71 documents, but continued to invoke the attorney-client privilege and attorney work-product doctrine for the remaining 155 documents. Among other claims, the Government maintained that those documents contained advice given by the Department of the Interior Solicitor’s Office (and other 

federal legal offices) about acceptable investments for tribal trust assets. 

The Nation asked the CFC to require the Government to produce these documents 

on the basis of the ‘‘fiduciary exception’’ to the attorney-client privilege, a well-established exception in the common law of trusts. It provides that a trustee cannot withhold from the beneficiary any legal advice about the management of trust assets. 

The justification for this exception is two-fold. First, the trustee is not the exclusive 

client of the attorney rendering advice, but rather is obtaining that advice as a representative of the trust’s beneficiaries. Thus, the trustee does not have an attorneyclient privilege that would exclude the beneficiary from access to the legal advice. 

Second, the trustee has a duty to disclose all information related to trust management to the beneficiary. This duty overrides the attorney-client privilege, especially 

where the information sought by the beneficiary is relevant to an alleged breach of 

a fiduciary duty. 

The CFC accepted the Nation’s ‘‘fiduciary exception’’ argument and ordered the 

Government to produce the attorney-client documents to the Nation. The Government appealed the CFC’s ruling to the U.S. Court of Appeals for the Federal Circuit. 

The Federal Circuit affirmed the CFC’s ruling. The Government sought review by 

the Supreme Court. The Court agreed to hear the appeal and heard oral arguments 

in April 2011. 

It’s important to note that the Nation had a strong legal basis for seeking court 

ordered production of these documents. At that point, several decisions by federal 

90

courts had favorably applied the ‘‘fiduciary exception’’ to the Government in previous breach of trust cases. Moreover, the Court of Federal Claims and the U.S. 

Court of Appeals for the Federal Circuit agreed with our position. All of the appellate litigation was instigated by the Government in an apparent attempt to create 

an adverse precedent that it could rely on in defending against the other pending 

tribal trust lawsuits. 

The Supreme Court’s Decision 

On June 13, 2011, in a 7–1 decision, the Supreme Court unfortunately ruled in 

the Government’s favor with respect to whether the ‘‘fiduciary exception’’ can be applied to the Government. See 131 S.Ct, 2313 (2011). The majority held that tribes 

suing the Government for breach of trust cannot require the Government to disclose 

documents containing legal advice the Government obtained regarding the management of tribal trust assets. 

Justice Sotomayor agreed with the Nation’s position and expressed her views in 

a dissenting opinion. (One Justice, Elena Kagan, recused herself and did not participate in the decision of the case because she had served as the United States Solicitor General when this case was making its way through the appeals process). 

The majority opinion, written by Justice Alito, ruled that when the Government 

manages Indian trust property, including trust funds, it does not act as a private 

trustee and is not subject to the general common law trust principles that are applicable to private trustees. Rather it acts in its sovereign capacity as Government and 

in the furtherance its own sovereign interests:

Although the Government’s responsibilities with respect to the management of 

funds belonging to Indian tribes bear some resemblance to those of a private 

trustee, this analogy cannot be taken too far. The trust obligations of the United 

States to the Indian tribes are established and governed by statute rather than 

the common law, and in fulfilling its statutory duties, the Government acts not 

as a private trustee but pursuant to its sovereign interest in the execution of 

federal law.

Id. at 2318. Accordingly, the majority held that the Government is not subject to 

the common law ‘‘fiduciary exception.’’

The majority reasoned that the two justifications for the ‘‘fiduciary exception’’ do 

not apply to the Government. First, when the Government obtains legal advice regarding the management of Indian trust funds, it does so not as a mere representative of the Nation, but in its own sovereign capacity and in furtherance of its own 

interests. ‘‘For that reason,’’ the majority held, ‘‘when the Government seeks legal 

advice related to the administration of tribal trusts, it establishes an attorney-client 

relationship related to its sovereign interest in the execution of federal law. In other 

words, the Government seeks legal advice in a ‘personal’ rather than a fiduciary capacity.’’ Id.. 2327–28. That advice is privileged and not subject to disclosure. 

Second, the majority held that the Government does not have a general common 

law duty to disclose information to Indian trust beneficiaries. The majority stated 

that ‘‘common-law principles are relevant only when applied to a ‘specific, applicable, trust-creating statute or regulation.’’’ Id.. at 2329. In this case, the majority held 

that the relevant statute—25 U.S.C. § 162a(d)—requires disclosure of periodic statements of trust fund performance and account balances, but it does not require the 

disclosure of all information related to the administration of the trust funds. The 

majority stated: ‘‘We will apply common-law trust principles where Congress has indicated it is appropriate to do so.’’ Id. at 2340. In view of the limited duties mandated by Congress in 25 U.S.C. § 162a(d), the majority refused to apply commonlaw trust principles to require the disclosure of additional information. 

Finally, the majority noted that the Government pays for legal advice out of its 

own funds, instead of trust funds, and that the documents containing the advice are 

‘‘the property of the United States.’’ Id.. at. 2330. The Court considered these to be 

significant factors in deciding who ought to have access to the documents. 

Justice Ginsburg wrote a concurring opinion that was joined by Justice Breyer. 

They said the majority opinion went too far by indicating that the government may 

have the power to withhold additional documents from tribes (in addition to documents protected by the attorney-client privilege). 

Justice Sotomayor wrote a dissenting opinion. She said that the statutory framework governing Indian trust funds is adequate to allow courts to apply general trust 

principles, including the common law duty to disclose information to trust beneficiaries:

We have never held that all of the government’s trust responsibilities to Indians 

must be set forth expressly in a specific statute or regulation. To the contrary, 

where, as here, the statutory framework establishes that the relationship beVerDate 0ct 09 2002 14:07 Dec 11, 2012 Jkt 076551 PO 00000 Frm 00094 Fmt 6633 Sfmt 6621 S:\DOCS\76551.TXT JACK
91

tween the government and an Indian tribe bears the hallmarks of a conventional fiduciary relationship, we have consistently looked to general trust principles to flesh out the government’s fiduciary obligations.

Id. at 2339.

Implications of the Court’s Decision 

This decision is extremely disappointing. It prevents Indian tribes from obtaining 

information about the management of their trust assets that is available to ‘‘private’’ 

trust beneficiaries who sue their trustees for breach of trust. It turns Indians into 

‘‘second class beneficiaries’’ in terms of their rights to receive information and to assess their trustee’s performance of its fiduciary obligations. The Supreme Court held 

that the United States is different from other trustees and is not bound by the same 

rules. The Supreme Court majority discussed in abstract terms how the Government, as a ‘‘sovereign,’’ is different from other trustees and stated that ‘‘the Government has too many competing legal concerns’’ to permit a case-by-case inquiry as 

to whether it has to balance competing interests in a particular case. This rationale 

is astounding in light of the fact that there were NO competing interests set forth 

in the record. 

The decision is also troubling because it limits the applicability of general trust 

law principles to the Government’s management of Indian trust assets. The majority 

stated that ‘‘common-law principles are relevant only when applied to a ‘specific, applicable, trust-creating statute or regulation,’’’ and further that the courts will only 

‘‘apply common-law trust principles where Congress has indicated it is appropriate 

to do so.’’ Previously, the Court had required specific trust-creating statutes only to 

establish jurisdiction under the Tucker Act for claims for money damages. The 

Court’s decision now appears to impose this requirement on all trust claims against 

the Government, including claims for non-monetary relief, like the Nation’s claim 

for the production of documents in this case. 

The majority asserted that ‘‘[t]he Government assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute.’’ Justices Ginsburg and Breyer, in their concurring opinion, criticized this language as 

being unnecessarily broad. Justice Sotomayor, in her dissent, expressed fear that 

the Court’s decision may ‘‘reinvigorate the position of the dissenting Justices in [the 

Court’s previous decisions in White Mountain Apache and Mitchell II, who rejected 

the use of common-law principles to inform the scope of the Government’s fiduciary 

obligations to Indian tribes.’’ From now on, the Government will cite this language 

to attempt to minimize its fiduciary duties to Indians and to avoid liability for its 

mismanagement of Indian assets. 

As Andrew Cohen wrote in the Atlantic, an unsettling theme that emerges from 

the Supreme Court’s opinion is that the ‘‘trust’’ relationship between the Government and Indians ‘‘is less about ’trust’ and more about the exercise of [the Government’s] sovereign authority over a vanquished people.’’

Legislative ‘‘Fix’’

We are very disappointed by the Supreme Court’s decision and concerned about 

the negative implications on the Trust Responsibility as well as the detrimental impact for other Indian tribes. Fortunately, Congress can correct this decision through 

legislation. We suggest that Congress amend the American Indian Trust Fund Management Reform Act of 1994, by adding a new provision to 25 U.S.C. 162a(d):

New provision: (9) Providing Indian tribes, upon request, with any documents 

relating to the Secretary’s management of the tribe’s trust funds and natural 

resources except for work product relating to litigation or potential litigation between the United States and a tribe or individual Indian.

We strongly believe that Congress should immediately take action to correct this 

detrimental decision. 

IV. Trust Responsibility: Trust Lands and Mineral Resources 

The Nation also takes this opportunity to raise a set of other trust responsibility 

issues which relates to our trust land and mineral resources. 

Oil and Gas Exploration and Production 

The Nation continues to experience challenges with oil and gas lease compliance 

primarily due to the large amount of acreage under lease and/or production, the 

number of wells in service, the extensive gas gathering systems operating throughout the Reservation, the large number of operators and related vendor service providers on the Reservation, to name a few. Under these circumstances, there is an 

92

acute need for additional regulatory oversight including enhanced federal coordination with the Nation and increased funding to fully support tribal regulatory needs. 

As discussed above, oil and gas leasing activity on our Reservation is conducted 

in accordance with the IMLA or the IMDA, and through these laws, Congress created a statutory fiduciary relationship, whereby the government acts as a trustee 

for the tribes in the context of mineral leasing of tribal trust resources. Accordingly 

the three separate agencies within the Department of Interior (Department) have 

jurisdiction over Indian leasing: the Bureau of Indian Affairs (BIA), the Bureau of 

Land Management (BLM), and the Office of Natural Resources Revenue (ONRR). 

The Nation exercises concurrent regulatory jurisdiction with these federal agencies 

over oil and gas leasing activities, and the Nation imposes and collects tribal severance taxes. 

Yet, though we have made tremendous progress of the years working with our 

federal partners, the Nation believes there is room for improvement as far as coordination in the management and regulation among the Nation and the federal agencies. The Nation requests that Congress exercise oversight to consider a reform of 

current policies, procedures, practices and systems of the Department, the BIA, the 

BLM, and the ONRR in order to ensure the proper and efficient discharge of the 

Secretary’s trust responsibilities regarding oil and gas leasing on our Reservation. 

Bankruptcy Filings by Oil and Gas Lessees 

The Nation is concerned about the bankruptcy filings involving entities that hold 

or assert rights to IMLA leasing interests covering thousands of acres on our Reservation. In some cases, it is apparent that these bankruptcy filings have been pursued as a means to circumvent federal and tribal laws. The Nation has already been 

involved in several bankruptcy proceedings to protect our interest in these IMLA 

leases. To address this alarming circumvention of federal law and regulations, the 

Nation proposes that legislative or administrative fixes be put into place. Specifically, the law should be made clear that prior to any assignment or assumption of 

tribal oil and gas leases, especially in the context of bankruptcy cases, both the tribal mineral owner and the BIA must review and duly approve. A related issue is 

compliance by industry and enforcement by the BIA. It is important that Congress 

protect the integrity of IMLA leases by ensuring that federal and tribal oil and gas 

regulatory authority is not diminished through bankruptcy filings. 

Split Mineral Estate Development 

An important aspect of the trust responsibility is to protect the integrity of the 

Nation’s sovereignty and control of our lands and the development of our resources. 

This extends to the development of the split mineral interests on our Reservation. 

As noted above, our Reservation was not subject to the Allotment Policy and Law 

and therefore we retain 100 percent of the surface and mineral estate of our original 

Executive Order lands. However, the Nation subsequently purchased several large 

ranches adjacent to the Reservation and such lands and minerals were taken into 

trust and added to the Reservation. One particular ranch was taken into trust subject to a split mineral estate. 

As background, in 1985, the Nation purchased a 55,000 acre ranch contiguous to 

our northeastern boundary. At the same time, we purchased an approximate undivided twenty-five percent (25 percent) interest in and to all oil, gas, and other minerals owned by the seller, who held seventy-five percent (75 percent) of the mineral 

estate. A third party entity holds the other twenty-five percent (25 percent) of the 

mineral interests. In November 1987, the Nation conveyed the surface lands of this 

property to the United States, to be held in trust. In December 1987, the Nation 

conveyed its interest in the mineral estate to the United States. On or about March 

10, 1988, pursuant to 25 U.S.C. § 465, the United States accepted these conveyances 

and approved the trust status of the surface lands and the Nation’s undivided interest in the subsurface mineral estate. On or about September 1, 1988, pursuant to 

25 U.S.C. § 467, the United States added the surface lands and the Nation’s undivided interest in the subsurface mineral estate to the Reservation. See, Proclamation of Certain Lands as Part of the Jicarilla Apache Reservation, 53 Fed. Reg. 

37355–02 (Sept. 26, 1988). 

In 2006, more than twenty years after the Nation purchased the ranch and eighteen years after the United States took into trust the surface lands and mineral interest the Nation purchased, the owner of the majority mineral interest entered into 

a lease with a third party for mineral development. The lease was not reviewed by 

the Nation or the BIA even though it purported to lease the Nation’s trust lands 

and its undivided trust mineral interest. BIA is responsible to review and approve 

the leasing of tribal lands and mineral resources, and is further required to secure 

93

our consent. The failure to exercise these trust duties constitutes a breach of the 

Federal Government’s trust responsibility. 

Incidentally in July 2006, the Solicitor’s Office of the Department of the Interior 

essentially determined that neither the Nation nor the United States could ‘‘stop’’ 

development, which has lead to a confusing opinion creating more questions than 

answers. In particular, the Solicitor’s opinion ignores Supreme Court decisions, 

which clearly hold that Indian trust land cannot be leased or otherwise encumbered 

without the approval of Congress. Congress has passed statutes which provide such 

approval subject to important protections, such as the IMLA and the Indian Reorganization Act. The fundamental reason for these laws is that the United States to 

hold title to Indian trust land, and therefore, the United States must protect the 

beneficial interest of the Indian nation. The Nation requested that the Solicitor rescind or modify its legal opinion and further requested to meet directly with the Solicitor. Our requests were not granted, though the law is clear that both federal approval and tribal consent are required prior to any development or encumbrance of 

tribal trust minerals. Congress should exercise its oversight authority over the Department of the Interior to ensure that these important and fundamental principles 

are fully adhered to, especially in our case where we have worked so hard to protect 

reservation lands. 

Dual Taxation of Oil and Gas Production in Indian Country 

Our Nation heavily depends on our oil and gas production as the primary means 

of generating governmental revenue. Our Reservation is located in the San Juan 

Basin, a well-known prolific source of oil and gas production for over seventy (70) 

years. Oil and gas development began on our Reservation during the 1950’s, under 

the leasing authority of the Secretary of the Interior pursuant to the IMLA. 

Throughout those early years, the Secretary negotiated and entered into oil and gas 

IMLA leases on the Nation’s behalf leaving us with a modest royalty interest in the 

development and production of our oil and gas reserves. In the 1970’s and 1980’s 

the Nation became more active in the development of our resources and won a significant legal ruling in the U.S. Supreme Court in 1982. In that seminal case, 

Jicarilla Apache Tribe v. Merrion, 455 U.S. 130 (1982) the U.S. Supreme Court recognized our inherent right to regulate our lands and resources within our Reservation, and upheld our sovereign authority to impose our own severance tax on the 

production of our oil and gas resources. That same year, Congress passed the Indian 

Minerals Development Act (IMDA) which authorized Tribes to negotiate energy 

deals directly, though subject to Secretarial approval. The tremendous impact of the 

Merrion case coupled with the enactment of the IMDA provided our Nation and 

other Tribes powerful resources and tools to expand our energy development initiatives. 

Following our victory in the Merrion case, the Supreme Court considered another 

case arising from our Reservation which involved an oil and gas company’s challenge to the imposition of the New Mexico Oil and Gas Severance Tax for activities 

on the Reservation arguing that those taxes were preempted by the State and Tribal 

regulatory schemes. In that case, States were granted permission to impose severance taxes on non-Indian activities involving the on-reservation production of Indian 

oil and gas reserves in the 1989 United States Supreme Court decision Cotton Petroleum v. New Mexico, 490 U.S. 163 (1989), which established a dual taxation burden 

on tribal non-renewable trust resources. 

Three years later, Congress acknowledged the problem with this type of dual taxation. In the Energy Policy Act of 1992, Pub. L. 102–486, an Indian Energy Resources Commission (‘‘Commission’’) was established. Among several other objectives, the Commission was to (1) develop proposals to address the dual taxation of 

the extraction of mineral resources on Indian reservations; (2) develop proposals on 

incentives to foster the development of energy resources on Indian reservations; (3) 

identify barriers or obstacles to the development of energy resources on Indian reservations, (4) make recommendations designed to foster the development of energy 

resources on Indian reservations and promote economic development; and (5) develop proposals on taxation incentives to foster the development of energy resources 

on Indian reservations including, but not limited to, investment tax credits and enterprise zone credits. 

In June 2001, the Nation attempted to address the dual taxation issue working 

with our then senior Senator, Pete Dominici, who introduced S. 1106, a bill to provide a tax credit for the production of oil or gas from deposits held in trust for, or 

held with restrictions against alienation by, Indian tribes and Indian individuals. 

A year later, the National Congress of American Indians passed Resolution #BIS–

02–060 to include S. 1106 in the National Energy Bill during conference between 

the United States House of Representatives and the United States Senate. However, 

94

the proposed bill was referred to the Committee on Finance, and was not passed 

into law. 

To date, the issues the Commission was to address have not been fully addressed 

by either the Commission or Congress. As tribes increase their economic development efforts, issues with dual taxation also increase. Dual taxation is an impediment and deterrent to economic development on Indian trust and restricted land. 

Dual taxation of tribal oil and gas reserves creates an adverse economic environment which impedes self-determination and strong economic development in Indian 

Country. The United States Congress has the power to address the dual taxation 

of tribal non-renewable resources by providing a Federal tax credit for the production of tribal resources, much like the one Senator Dominici introduced in the 107th 

Congress. 

It is important to note that the State of New Mexico enacted a state severance 

tax credit for producers who developed new wells after 1995. This is an important 

incentive to address the dual taxation issue. However, it also important to note that 

the many of the existing wells on the Nation’s lands were placed in service prior 

to 1995, and that many other States with oil and gas producing tribal lands do have 

similar law in place. 

Thus, the enactment of a Federal tax credit for the production of oil and gas produced on Indian lands would be helpful in addressing this problem. The creation 

of such a tax credit would not only address the dual taxation of tribal non-renewable 

resources, but would also help stimulate tribal economies, and contribute to the 

United States energy policy of boosting domestic production to decrease reliance on 

foreign production. It is truly ironic that, as America seeks greater energy independence and undertakes hazardous energy sources such as nuclear energy and off-shore 

drilling, Federal caselaw burdens the development of safe Native American energy 

resources with dual taxation. This must end. 

We respectfully request an opportunity to work with you to craft a provision outlining Federal tax credit for the production of oil and gas produced in Indian Country. This will certainly strengthen the trust responsibility to protect tribal trust 

lands and mineral resources. 

V. Conclusion 

In closing, the Nation appreciates the opportunity to appear before this Committee and provide testimony on this extremely important subject. We look forward 

to working with the Committee to strengthen and enhance the Trust Responsibility.

The CHAIRMAN. Thank you very much, Ms. Atcitty. 

Mr. Halbritter, in your testimony you stated that ‘‘flawed implementation’’ of the trust responsibility is where Tribes are most affected. What can Congress and the Administration do to improve 

implementation of the trust responsibility? 

Mr. HALBRITTER. Well, we are recommending that a review commission be established. One was in the past, but one that can investigate and be empowered to help understand this issue better. 

In our particular situation, local governments, State and local 

governments, contradict the intent of the way our protections and 

our treaties and the trust responsibility exist. And oftentimes the 

Government ignores our request, despite our treaty guarantees, to 

have the opportunity to be protected, the opportunity to be heard, 

the opportunity to appeal to the Federal Government. It is right in 

our treaties which as we know by the Constitution are the supreme 

law of the land. 

The Federal Government often, our position is often determined 

by their will, or lack of will, to involve themselves as a moderator 

when we are in conflict with State and non-Federal governments. 

And oftentimes, as we know, the facts determine the outcome of a 

case. And a lot of times our issues are overtaken by lawyers. 

And so, when the issue is shaped by the local courts, we are the 

minority in this Country. The locals will always be in the majority. 

They will always have the more popular will opposing us in a conflict. That is where the Federal trust responsibility is critical, to 

95

help moderate and alleviate the change in leverage in your relationship. 

Every case now that comes before this court that is alienated 

from Indian life, I mean, I do not know if any of these courts often 

really know what is going on in the communities and as a result 

what is decided in the courtroom is somewhat limited. Whereas the 

Federal Government has representatives that can visit Indian reservations, can talk to Indian people and get to the heart of the 

issue and help when our position is so impeded by the fact that we 

do not represent the majority where we are located. We are the minority. We are often picked on and vilified when there is an issue. 

And the media also plays into that as well. Sure, we do not expect Congress to be able to do anything about the media, but they 

can certainly have a role and they have an obligation under law 

and a duty by honor as well to work with Indian nations to resolve 

these issues. And that is our preferred choice. It is not to be in the 

courts but to be at a table where we can negotiate and discuss 

these things just like the original relationships were established by 

negotiation and treaty. 

The CHAIRMAN. Thank you very much. 

President Sharp, you are a member of the Commission on Indian 

Trust Administration and Reform that was created by the Department of Interior following the Cobell settlement. Can you describe 

what the end product will be for the Commission? And what impact 

you think that will have on Tribal governments and the Indian 

people? 

Ms. SHARP. Thank you for that opportunity and question, Chairman. 

We have had many discussions about our preliminary work, 

about organizing the Commission and certainly are looking at the 

goals of the Commission. The goals include providing a comprehensive evaluation of the trust services, management functions. We 

hope to deliver a very well thought out, a very well informed set 

of recommendations following a comprehensive evaluation. 

We have recognized that there is not going to be a single person 

that is going to have enough expertise to look at the entire system, 

that we are going to have to reach out to subject matter experts 

in leasing and various other topics that are going to require expertise. 

So, we hope to deliver not only a set of recommendations that is 

going to provide a roadmap for all to look at, how we can adjust, 

realign and redefine that relationship with the United States, but 

those recommendations are going to be based on a sound evaluative 

process, a very deliberative evaluative process, and a process that 

includes the direct engagement of Tribal leadership, Tribal organizations and individual allottees. 

We have an approach in which we are going to be reaching out 

to those in Indian Country . They have four hearings that are set 

to go out into the field, four listening sessions. And so, we are hoping that we can deliver not only a product that is going to be comprehensive but one that will be useful. 

And to your second question of what value will that have for Indian Country , we believe that if these recommendations and evaluation is Tribally driven, not Administratively driven, that there is 

96

going to be a vested interest in the outcome and Tribal leaders will 

be able to work into the, work in partnership with, the Commission. Recommendations are going to be real, they are going to be 

meaningful and they are going to make a difference in the future 

relationship that we have with the United States. 

The CHAIRMAN. Thank you very much. 

Vice-Chairman Baptiste, given the Department of Interior’s recent efforts in settling long-standing trust mismanagement cases, 

what do you think the next step is to affirm the trust relationship 

between the Federal Government and Tribes? 

Mr. BAPTISTE. I thank you for that question. I believe that, you 

know, this sets a tone for further involvement in Tribes. It also 

evaluates and sets a standard that might guide those Tribes. And 

those individual Federal agencies, they have also implemented 

their own government-to-government capabilities to work with 

Tribes across the Nation. 

I think that the Nez Perce Tribe, in its own, we have our own 

government-to-government consultation process. I think a lot of the 

Tribes across the Nation would be able to develop their own, to be 

able to guide themselves. That way you can implement that when 

a Federal agency is developing a policy that concerns Tribes, all of 

the existing ones, the Department of Energy in itself has one and 

I think we work well with them. 

I think that this, this last go around will help set the tone for 

that, again, will help provide Tribes and push the momentum. I 

think the momentum that we are using right now, I think, will 

build, I think with your help, the Committee’s help. I think that 

we can prioritize some of the Federal agencies’ Indian policies to 

change and format with the working group that Ms. Sharp is a 

part of. I think that also will be helpful to try to provide some guidance for them. 

But they have to also be willing to come across and educate 

themselves to Indian policy and the Indian, I guess, how Tribes are 

operating and our point of view. 

The CHAIRMAN. Thank you, Mr. Baptiste. 

Shenan Atcitty, the Congress is committed to looking to the recent crisis at J.P. Morgan and the transactions that led to billions 

of dollars in losses to their shareholders. Congress and the shareholders are seeking transparency into how decisions were made, 

with the impact these decisions will have on shareholders and the 

industry. 

My question to you is, what correlation do you see in the Supreme Court’s recent decision in the Jicarilla case? 

Ms. ATCITTY. With the J.P. Morgan situation? 

The CHAIRMAN. Yes. Well, the idea is to access information. Yes. 

Ms. ATCITTY. Well, I think the correlation is, with respect to the 

private beneficiary, I doubt that they are going to have to go to the 

Supreme Court to get access to records. And I think the correlation 

is a fairness one. 

You know, you have got a debacle of that level and certainly the 

shareholders are entitled to know how their, how decisions were 

made with respect to management of their trust assets. In our situation, unfortunately, the Supreme Court sees it differently. You 

know, we, too, are beneficiaries. Those are Tribal monies, not FedVerDate 0ct 09 2002 14:07 Dec 11, 2012 Jkt 076551 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 S:\DOCS\76551.TXT JACK
97

eral monies. But we are not entitled to see how decisions were 

made because of this attorney-client claim. I think that probably 

the, you know, how it correlates and shows the unfairness of the 

situation. 

The CHAIRMAN. I see. 

Let me get back to Mr. Halbritter. When speaking on the trust 

responsibility, we focus on the impact it has on Tribes. In your testimony, you noted that a strong Federal Tribal trust relationship 

also benefits local communities. Can you expand on that thought? 

Mr. HALBRITTER. Well, yes. The fact that we are a minority politically in the community in which we live, the will of the community affects the leadership and how they relate to us. And our desire is to negotiate and work things out with the community because it is our legacy as Oneida people. We were allies in this 

Country in the Revolutionary War. 

But for example, the community does not always look at how 

much they benefit. We are the, in a 16 county upstate New York 

region, we are the largest employer. We have nearly 5,000 people 

working for us in an area that is economically deprived. We put in 

about $1 billion in infrastructure and about $2 billion in salaries 

and vendor and payroll in the local community. And yet, they still 

oppose us on every level that they possibly can along with the 

State. And it is largely political. 

The Federal Government, their trust relationship has always 

been in a position to help us balance the table when we are trying 

to have a discussion about resolving our issues. And now with the 

courts making decisions, the courts are making decisions eroding 

the sovereignty of Indian nations. They do not want to negotiate. 

They want everything to go to court and they are just gambling 

and believing that the courts are going to rule against the Indian 

nations as you hear about the legal case. 

The place for our people, we believe, is at the negotiating table, 

like we negotiated treaties, as sovereigns, as government-to-government. And that is what the trust responsibility and the years of 

having the Federal Government play such a prominent role is to 

not allow that to happen where the local governments and communities are eroding and conflicting with Indian nations. And we create great economic opportunity in the region. 

With the Federal Government, we can resolve some outstanding 

issues so that we can have a more peaceful existence for future 

generations. 

The CHAIRMAN. Thank you very much for that answer. 

Mr. Baptiste, in your testimony, you applaud the Government 

settlement of trust mismanagement cases but say that the larger 

question of the current state of the trust relationship between the 

Tribes and the United States is not addressed. How do you think 

the current status of the trust relationship can be addressed by the 

Administration and in Congress? 

Mr. BAPTISTE. Thank you. I believe, you know, the trust asset 

settlement, you know, like I said before, has provided the answer 

or provided a clean slate to work through. But I believe that it is 

through the true consultation process. 

I know there was a Memorandum and each Federal agency had 

an opportunity to submit their consultation process with Tribes. It 

98

is also the implementation of those consultation policies that, I 

think, will provide a success for Tribes. If they are not implemented properly and without, you know, the guidance of the 

Tribes, I think we will remain at the kind of juncture where we are 

at where we can, you know, either improve it or work with a broken system. 

I think that we all identify that there are flaws in the trust relationship. We are working through that. I think the Tribes have ultimate faith that it will continue and get better, we think, with the 

work of the Committee. 

With the Administration right now, we have an opportunity to 

better that relationship. But it, it lies within the hope of those implementations of those consultation policies and those individual 

Federal agencies and hopefully that those sister agencies will work 

together and collaborate so that a lot of them will not duplicate the 

same service and that they understand each other. 

Each Tribe has a different working relationship, or even a social 

or a need or a cultural economic need, and those will kind of drive 

how they operate with the Federal agencies. But, I think in the end 

it is just those policies, those individual Federal agencies that will 

help drive this and better our trust relationship. 

The CHAIRMAN. Thank you. 

President Sharp, in your testimony you noted that improvements 

are needed in department’s self-governance program. What specific 

recommendations do you have for improving this program? 

Ms. SHARP. Yes. The self-governance program, as I mentioned, 

the original vision that Tribal leaders had for self-governance was 

an ability for us to freely determine our political, economic and social futures. We received block grants of dollars through compacts 

and were allowed the flexibility to adjust resources from education 

and natural resource and we have that flexibility, as I mentioned 

in my testimony, of being managers of Federal dollars. 

We do not have the freedom or ability to make fundamental decisions affecting our lands, our resources, our people outside of that 

framework that is based on this idea that we are somehow incompetent, that, you know, we have this dependency, this ward-guardian relationship. 

I will give you an example. When the Quinault Nation had 

worked on a comprehensive restoration effort for our salmon and 

our blue back stocks, another Federal agency took action that was 

directly not only not respecting our science that was based on Bureau of Reclamation Reports and other reports, but they took action 

that directly undermined our efforts. 

And so, the bureaucracies that we face within agencies that still, 

and it was mentioned by another panel, or by a fellow panelist 

here, that there needs to be some way of enforcing the relationship. 

When we are at odds, whether it based on science, whether it is 

based on policy, whether it is based on a value system, if there is 

a conflict we need to have a means by which we can come to the 

table as equal sovereigns. 

The United States does not enter into other countries to take 

unilateral action affecting resources, etc., and that same type of 

equality in a relationship with Indian nations must be respected. 

So, if we look to international law, if there is a dispute there is a 

99

three-step process of official talks, of negotiation. But by all means, 

those parties come to the table in equity. There is no ability to take 

unilateral action. And so, we need some means of enforcing and 

supporting our views and our position when it comes to implementation of that relationship. 

The CHAIRMAN. Thank you. 

I want to thank this panel for your answers to our questions. We 

may have further questions that we will place in the record and 

also from other Members as well. 

As you note, you know, my questions have been questions which 

are looking for answers as to how the Congress can make a difference. And as you know, I am looking at the Tribes to try to assess this and we will see what we can do to help you out on this 

because this is a huge, as I continue to say, trust relationship and 

a Carcieri fix is my high priority. And I think it will help resolve, 

you know, many problems that are there now. But we need to get 

all of the information we can. So, you know, help us try to bring 

that about. 

So, I want to say mahalo, thank you to you and all the other witnesses. Today’s testimony provides for me and for the Committee 

a greater understanding of the trust relationship that exists between the Federal Government, the Tribes and the Indian people. 

And so, again, I thank you for helping us out on this and we will 

continue to work together to help bring this about. 

What is clear is that the trust relationship has existed, as you 

mentioned, since the formation of this Country and the first government-to-government contacts between the United States and 

the Indian Tribes. Even though the implementation of that trust 

relationship may change based on legal decisions, from Administration to Administration and from Congress to Congress, the trust responsibility endures. It is the obligation of Congress, the Administration and the courts to uphold the legal, moral and fiduciary responsibilities that are at the core of the trust relationship between 

the Federal Government and the Tribes. 

So, I look forward to continuing this dialogue with our witnesses 

at today’s hearing and other interested parties and stakeholders. I 

also pledge my best efforts to keep the enduring principles embodied in the trust relationship at the forefront whenever this 

Committee conducts business on behalf of the Native peoples of the 

United States. And we will continue to strive to do that. 

So, again, mahalo. Thank you very much. Have a safe way home. 

Today’s hearing is adjourned. 

[Whereupon, at 4:03 p.m., the Committee was adjourned.] 

(101)

APPENDIX

PREPARED STATEMENT OF HON. JULIE KITKA, PRESIDENT, ALASKA FEDERATION OF

NATIVES


517d1.eps
102


517d2.eps

As ea.>iy as 1904 me. fud~i!l COur'>Il odd dial this SClllc.nce IIp[llied the whole oody of 

federal Iu.diM low to the tribes of Alaskn.l Ncnetheless, 1Ul!I1 p~dJaps the end of the 20lb 

centuty, thel'e was general judici31. IlJld policy confusion about tht ~tntl.lS of tile Alaska Nalives 

and their mlatlonsbip to the federal gO"'M1U1~nt. It was often assumed U\IIt t.hey did /lOt have the 

same "ruw." l'<11~tionship with the United Sti1~ and that,. no!witlli;tmdingthe 1867 treaty, f&!eral 

Indian Jaw dId not apply inAlaska.4 Beginning wfth the enactments of IoNGSA ill 1971 and the 

lndinn Se1f.Dt1tOOIlin~lion and Edocation Assist:mc ... Act in 1975, and continuing with allil:lt of 

slIIM"-S eI\(II.i1.,d to me end of!be W1!l centu\)', i~ Js !:Ow we]: esL1blished that: 

Alaska omh"el!, including ledlans,. F..Jdnws mill Aleuls, ha'l"" tI\¢ srnne iegd S':i!ffiS 

!IS ltJenmm of Iruflall ti!ll'$ singled out as political cnt!~ in the commerce 

da\1~e !lfthe United SllItes Comtitt1tlou.5 

n, ORWlNS OF THE TRUST klJ'SPQNSIDILITY 

Th(l. fedwaI governmont's tnllit rc:lfKInsibihty 10 Native Americans flllds its otigms ill tli'J 

federal gove.""WneIlt's; assumption of power and responsibility over Ind!M liUlds- and tribal 

governments. The powe1 cxerdged by ('..or.gre,~s tlndeT the Cmmnc~ Cla~se, is; dUl!'actcrlzeti 

as ~plcna.'j''' (l, e<.Jrt\,,:cte. Tho; =eu(iV(! wanch i~<lfitm delegated authmityover Indilmaffirirli. 

mcludias the- .authorlty to ''re,,;)gci%e'' tribal governments? BoW. CQllgte5S M;d me c.o;~e at? 

cimacterh:m all Uro "political" branches of 1le g~wmmem ""fMC de<.el'rof:mtID1l~ 13S to the 

ms~c" tlf rndian "/rilles liIld 1m I;\:tleot 10 whick th.ey l1{C 1\.~17.ed ill trii:>e.! := jud.;dilly 

1l!l(lwieWtlbfe,$ The United Smtes Supreme Court recently ch~rl~1ld the. origins of Lbe 

federal lI1lthority over Indian affaits lIS b~.ing "precO!lSututionaJ," be~c it inoorporntes 

elemenlli of military and foreign policy thm: IjrC ''necessary concomlt~/,'; of natillll..:tity" which 

do not Ilecesll~l'lly require the nff"umatiw gI.WIt of federal power. 9 

The fcdernl trust responsibility ill fauX\<kd !lIJ the inherently unequlll rclalio!lll.'J![J bet ........en 

the Native Afnerictllls mEl tho;l W:leral governnmr.! - an illl'qcality ilttgely {]fthe go=mem's. 

(lWJl mtiking. oo The nature of thflt reJatiomht? ViES ~fined ill the early }'l:JU"i nf the repul:tlk: by 

eong:ressiooal ~tme:ltS and 1he Gll<:isions uftin: Vnitcii Sta~ Supreme C'Ollit - fue ~o·c!illed 

1 It: T~ Mfnc~k, 2 Nash Rep!!;. 200, nO.2H (D, Al""b 19M) (so ooldifls: 111 Mmmlning a IJIl"'liDII of Ala:;kil. 

Native cltiitll!l~ip). S.~ genl:l311y David S. Citie alul D.vid A. Volu"k, AhlmJ Nan·vt>'mid American wws, 4445 

(2d ed .. Unlv, AI(l.IM rre.<s 200l) (discl1GSiog tit. ~ppli<;'Illon of!he i8fi7 lreaty 1<l AJ~,.Jm Nllli~es). 

, Caso and V(!]UoJk, ~I>[I.-a ~I 6--'1. 

, Cohen, H~ndb<!Gk if Fod!:",llml;cm Law (2007 c4, ~N,~ts Mathew Bend<:t') aI3J~, /I. lOGS, cilin& among 

othet "ulho.\I.m, AMERICAN INDIAN PollCY ~ CoMI\I~SION, Final "-"port, 9S" ColIS,. I~ Sess. 4S9(C{lmm. 

PriIK 1917:> t"N~~b Nruives did nOI difter nm~e.~J)I Ib>ro 01'0' Amr:nc.n na!i,,~ ~1es. TIreY"Il!..nizcl 

Iltem>\llvll> inK' '001>1 ~ntl~lmcal uoils wm>l'" o. \rlbe&},.. ~i>ri<o", and mdli!<>,m, but"f ~,e,~",,, is'',,,,m] ""I(IIe, 

a:i 1ho:I~ eYlllved by Ue lruIiom. kIlMk'w.<41l."l:;»&Y\d S, O$&: Do"!i!<I A. Yotud:, AV$~N"'71\I!!!l ANt'> 

Al.mruc.\NLAWS 42S-431 (1<l ell. t:'m.v. Ahsh P'1=2f".Rl2}. 

Sec """""ritles clieil tI!e"" 

/os=, ~.g. (J>;iiJ!d SlIlla l'. La"" 541 u.s.. 193. 201.202 ~20Ct4). 

1 U.s. v. S~n"rnal, 231 U.s. 2&,45 (1913). See al!IC, fe.Jerally Recognized 1ii\l~ LU\ACI of 1994 (25 U.s,c. 

§479a,no1<!~nd 114790.·1). , U.S, 1'. fMliMY, 70 U.S. 4{17, 419 (1355), 

• U.S. \', wru, 541 u.s, .upra al 200. (CiWk>1I o~,\tt.w,) 

to H.g. US. v. KtJ/J{l1ll4, US u.s. 375, 384{1SStl). 
103


517d3.eps

MmhaI: Trilogy. The TIl!d\l- and k1!~(lll'I:i" Acts of 1790 imposetl a Sl~\Utory testraim: OJ! lhe 

alie1llltion 0" all tribal lands, pre"entblg llieir disposition by Ihe trIbes eAccpt by a federal 

I!e9ty.1l The statute ensured a federal monopoly over the disposition of IndhUllands, but it WllS 

the Supreme Court thatdefured the Dmure 'lflndil\lI title. 

In Jol/Mfil"ll'. M'/nIOSh, JohnMmball employed the IlCt:on I)f th\l"ru.Ie: of discovlll}'" to 

find th~t tho: Un:itetl Statc5 held a $uperlor title ttl the larnh {vm:iM$ly Chfll"M!erized lIS "fu:," 

"absolute title~ or "lIb.':!:lime urJmute tide"}. l~ "'rM.lndians, Qll the otlle:r hand, were; considered to 

bffi, $!I. exclusive right riuS'.> and ~'Upaney ('Wilieh tala came tc be des~bM as "aborigbal 

title" « ~lndbm tfde'') thu em only ~ temrinated by the exercise -of cong..-ess1m:!ii auliurlty, 

Beclr.!:se the United S~ gained thl). plWU\ptivc right 10 purchase thJ: title, 1lte result was th~t 

the lndi~n titlo wm sign.ificlilltly dim!:aiflhed at common la.w in a way that paralleled the irode 

and Intel."OOursc Act's restraint 011 alienation. I~ 

ltJ ·tho Cberokee cases (Chercb;~ N(I1ran v. GecJrgia nnd WQn:'h$terv. Georeia), MWMII 

extended the analysis of the federal-tribal xelatiollShip to describ!.' the political SlaWs of the 

Indian trib~ 1\5 "domestic {!epcndi1l1t nati.on~" whose n:lationship to !llidild¢rai government W"'"<>s 

s=:ctnmg m:o thllt of n "WlIId t<l his guru;diao.~g As a resllit ct!he Mmlml1 declililru:, ;lml as a mlll;er of fedcrcl oommoo law, the hlcfuni lest ronirol of ~ di.-;porition (lf1hcir-T~ u-,d their 

gc~5 were daBlrcl pl~wd \lnder the ~i<m of the fede..-al gcvemmen1. SIl1>;'ett to 

1i..i!lhcr limitations ofthcir PCWI:tS by Congres;, ' 

Suj'tlllme Court decb;iws ill the late 191h to early 2!f' centoiiM c;qJanded upon the 

Manb.all Trllogy, to evolve a virtoaJ1y \lIl,cnallengeablc illl~tion of the scope of 

conyession~1 Ulllhodty to legislate in the field of Indian affob"s.l C.oQ.gr&Ssional power to 

kgislnte S«l!ll~ tQ bQ limited only by othm: provisiollS of the Const[n.ltloll, which, for example, 

require ccrmperntation fur mil taking of'trcat)' lands and rightsP Similarly:. 

[IJn respect distinctl;! Jrulian contrntmitics the question is whether, to ,~hat 

~ll to and fur what time they sJmll he recogtl~ and dealt with a:> 

dc{X:ndant tribes l':ijUiring the gu~lamhlp and prote>;lic:!l. of !he United 

SliIte.:; ate to be lietemlmoo by ClX>gre,IS, ami not by the ClJ:'rt.~. 1$ 

The tnl~t responsibility. as exercised by Congress, is almost. uuf"ttl")rcd poWer wiilioot. 

responsibHity. Thus, Congress can ~.I;tinguish Native land cluims, settle them without 

" Aolofl1tly 2~, 1m,' Sl~, 137 (25 U.S.C. 1,1111). 

" Jo!!1IS<Jl\ If.. iI:f~rMlslt,"1.1 U.s. 543.5BS(1I)2J}. 

" s.:" g<:rlCtclly, CQheIt. suprn, secliQn5.04- (4J~1, c~rll;1fng tI1e.lfe~lo;1mell! (If rtt.. \rIutr&lll""ibllft)·. ,. Ch~raUeNaliim"R Gt<lrg;;:.SOU.S. I,!? 0"871}. 

" C"b" ..... UprJ.llI.l1ilge 410. !ke:.b~. u.s. ;clam, 5411J.S. S"l'fll, ~I:roS (fu, .... Wl rrllXd l'~ Slfujectro 

~WCo~.) 

,. S..,.;.g. ~ WtJol", HlrJ/.=:k, ;1l1 u.s, $53 OW;} (tcik:l ~tzl<ls oot~ M!:l~"'voly by Ill: pOlilital 

0",,,<1,,,-,, or ~"I) au~ U5: ~. Kutl<1""', lill u.s. ns snpra 3t 3M- (lIL"Q~\l:h ~()I within 1lI,,:;rope cf III~ 

CoIl1=;~ C1mlSl), Congres, harlpower W te~CIl= ~~d presoribe pwa1tles I'or<:tlroe,< by Indians in Iffii.n caun~ 

b= ..... fn:tm L!I~ fetkrnl rcl,tioruhip to U!e Iri~ "I!we arl:;es the dUly of pro1oXlio~, 311d willt it th~ pam!"." 

" De!.:>fII,,.,,1ii/,,,1 BlI3ine:;r Conun. v. w.o!h. 4~O U.s. 13 (1917) (Congress eM WI .I~!cise plenty of PO""" 10 

lIeprive a trlb~ Qfjllllr<:aty land!; whhoUIJIlSl comptnsalloD), 

11 u.s. v. SlmdQW11, ~Sl U.s. 2R, 46 (1913). 
104


517d4.eps

compensation 10 or the conslmt of the Natives, and terminate federal recognilion of tribal staLlls.19 

However, once Congress delegates the power 10 mllIHl.g1! tribal llilsets 10 the eXl!cutive braneh and 

prescribes the standards for doing so, the eXC1::utive branch can be held to principles applicable 10 

a private trustee.2C 

To summari~e, !he federal trust responsibility is considered to arise Ol/t of !he inhercntly 

unequal relationship between the federal government and the ~di,tinctly" Native communities 

that are federally recognized IlS trihes. Wheth~, to what e:o::tent and for what time those tribes are 

to be recognized by the federal government i~ exclusively a matter left to Congress and the 

executive ("lbe political branches of government"). The power of the United Stntes 9ssl!rted in 

the field of Indian affairs, under both the Commerce Clause and federal common law, has been 

held to imJXIse upon the United States a r~sponsibility of trust when dealing with Indian tribes. 

CongressiDna] exercise of the power is unreviewable so long as it is not ineonsistent with other 

provisions of the United Stalw CWlEtitution. But once Congress has delegated power ([) the 

federal executive to administer Indian resources and has sufficiently described the standards by 

which those resources are to be managed, tile United States executive can be held accountable as 

would aprivale trustee. 

The general trust responsibility is manifested primarily in the "government-togovernment" relationship between the United States and the federally recognized tribes and the 

plenary authority of Congress tD legislate on tlielr behaU. The executive bmn~h has also long 

been understood to have the authority to rccognize the tribes, much as it has the autblJrity to 

recognize forcign nations. In 1994 Congress ronfinned this authority with the enactment of the 

Federally Recognized Indian Tribe List Act that req~ired the Secretary oftlie Interior to publish 

an anmtal list of federally recognized tribes, and prohibited tribc.s from bcing removoo from the 

list except by an act of Congr>!.o;,~.2t Congrt:!is has gone eveu further in Alaska, where il has 

frequently defined the AlRSka Native cO!pOratioll5 established under ANeSA as "tribe!;" for 

particular purposes. 

III. THE GOVERNMENT'S TRUST RESPONSIBILITY TO ALASKA NATIVES 

The great confusion about the history of the relationship between the Alaska Natives and 

the federal government is that it is often characterized as being ''unique." In truth it is no more 

unique Ihan the history of any other Native American community within tllC United States. Like 

all Native American communities, that history begins with n treaty between the Unites Stat[l5 and 

a European ptlwer ceding the European power's authority over Native AmericllJl tcrritDry to the 

United States. These eeSSiOlll\ are ulldentood to convey to the United States the exclusive right 

19 See, e. g. Tce·Hi!.T,m Band of lru1iam P. U.S .. 348 U.s. ~72, al 283. n. 17 (J955) (HoldIng lIIat Native land ~lalm. In AI..,ka .,,' Oil Iho ,U"", fUUI;"1: "" illllle lowcr4a ,lIlll:. and ""ngres,IoMl exllngllt,bmeru or .bortgtnal 

title. is nmGClmpennbie under IheFifth Amendm"nL) See nbo. U.S. v. LDnI, 541 U.s. 193 1l1lIU. 312m (Con~s 

<:an "n",,1 JaWll bolhreotricDng, then ",laxing ~triClio ... nn £ribll snvereignty). 

>I) COIllPll1C U.S. Milr:hdll, 445 U.S. 535 (1980) (Rern,ndetI 10 delerrnine if fedoml gov",nmenlllad deli",,:d 

slallltol)' responsi~tJiDe:i in th~ IIUlnllll"mem of allotment limber) wId! U.s. .... MilCh.,1 /T. 463 US. 206 (1933) 

(Upholding a stalutOI)' respornibiJity 10 m3llll", lndilo timbt:r). Sec 01"", S~mi/Ull~ Narliln v. U.s., 316 U.S. 286, 

297, ".12 (1942). (Holding the Un~ed SI.Ie, to "Ule lW,l,t .~,oting j~dicillI)' ,lIIlldan!>" wb"" it .rranoously p.[d 

money to the agen'" of Ibe iridian tribe knowing them 10 ~ d~nest). 

'I Al:l of No\'. 2, 1994, 108 Sial. 4791 (25 U.s.C. §479.1, nOle."d §479a·!). 
105


517d5.eps

reo:ognb;cd under Johnson v. M'lnrosh 10 acquire the aboriginal title of the Native. Ameiic.m.~.ll 

As in the. contiguous Unit(:d States, NlIlivc poopl(: living primarily ill village c!JlIl!Jlunities 

historically denominated as "tribes" also populate Alaska. 

As noted carli<::r, what was dmmen! &bout Alaska was that the year was 1867, not 1789. 

By that time, following the end oithe Civll War, America was Oil the mru'cb west 1lIld!he Indians 

wCle itt 1he way. In Um latter half of the. 19th century t.lto:: United St~tes adopted JlQlicills 

calculatlld to asdwilate Native Amelkans and break up their tribal g,m:mments and tribal1Wlds. 

These policies found theiI' expression in leu: rg'lt cemllI)' Ala:!1mjudiclal decisions and fe{)"ral 

Alil!ika policies. Until IS84 Alaska wm; govemd a5 l! miliwy district, but when the army 

llttl:/Jlpted to use the Trade and Intercolmc Act to s:cp the introduction of liqoor. the coorts held 

that Alaska was not "Indian CoWllly~ subject to the AcL Zl The I'lClI.t year, Congress applied tire 

liquor control sections of the Intcn':(nlflle Act 10 Alaska, after which the courts upheld 

prosecutioflS for supplying liquor to the Jndians.'A 

Similarly, the BIA was held to btIVC no nuthority 10 implenw .. 'lt p{'(l~ or spend money 

in Abm.lS The 11184 Organic Act aho required education in Ihe temtory to be "without regard 

to- tacc:'u In 1886 the Al~ska <!O\llt$ ht:ld that the Tling1t Indians did not hnve sovereign 

authority.v Much as was thep.. the policy ill the lowcr41i- 3tattlS. the>Je ~es" slatutes, md pclicies 

in ,\IMb v.<ere designed to assimihte the Natives Into American society and generally avoided 

treating Alaska Na.tiv~ as being subject to federal Indian law. At !.he end of the 19" ccntury, the 

Department of the Interior Solicitru held that Alaska Natives did not have the SiUl\e rel!iliOllShlp 

to the fudernl. government as other Native Americans.~ 

In spite of these policiC.'l, other forues were at work 10 prO\J;lct Alaska Native lands under 

the dOctrine:; ofaboriginal title and to deal with the A.laskll Native "iJl~ges as tribal governments. 

Two C<JS~, in 1904- and 1914, upheld dIe nuthority of the United States to prevent ttespass to 

aboriginal Jands in Alaskn.l~ Additionally, although education was to be ''without regard ro 

race", in fIK:t, it was very mw::h with regard 10 /;liCe. 

A noted missltmary, Dr. Sheldon Jackson, was appointed Geneml Agent for EducatiDn in 

Ah!w ,0 m:plemcnt 1l11~ educational pOlicies of lhe 18B4 Org;mjr, Act. In that cap~city he 

established numerous scllools in remole Native vm~ges, whic:b. became the focus of heclth care, 

reindeer herding, and other programs administered by lhe Department of Interior's Bureau of 

Edueillion e;.:.cJllsive1y for Natiycs. In 1905 the Nelson Act specifically required the separatioo 

of white and Native children in the schools and inc::eased the approprilltion.~ for Native services 

in Aiaill::a?a 

:u F/erc."er". Pede, IOU.s~. 142·143\lSIQ.). ("!TllII'Judi:mtilk-... to be:e>~ted by .Ih;curt!;. !IIllil itbe 

I~l'.m.'ltdy utitlZ.uc<fl>'d,» tcminues w[lh !he ;\1n:; "hea it i~"" .. ~ired bYlll>C"':roV"!~iillL) 

>J See fl. S. ",S~""1qff, I AWl:<! Rpts. M (1$12.). 

" InmO",.l ,llJIi£"'Rpt<. 7~ (!ll75). 

>:I Cas~ and YD!""b~p", .t 191, n. 2.. 

,. Aot ofMa)' 17, 1&S4 §13,23 st.t24. 

on In re StJh Qu~h, J Al<IsIwFed.Rpts. 13ft (lUll) • 

.. AlaJka..Legl1l Sf~ltuofNmi' ... 19 L D. J23 (1894). 

19 ~ . .s: v.. ficm'E~~, 2AlaikllRpts. 442 (D.Al~ib 1\'104) and IJ.S. v. Cadww,S Al.,k. Rpts. J25 (D. Alaska 19(4). 

>II ActDf Ja,,"ary 27, 1905.33 stat 616. 619. 3..,,,1>0 Case and Voluck,upra.l8. 
106


517d6.eps

In 1932, responsibility f(lf AI1lSka Native programs was transferred to the BIA. Shortly 

thcrt:aftcr the Interior Or;paranent Solicitor i5~ued ~ new opinion, concluding after an exhaustive 

analysis of appli""blc casCl;, statutes and poJicir;5; 

From the foregoing it i~ clear that no distinction bas been or cau be made 

bet-WOOl!. the Indians nnd ocher nati"lo"CS of Alaska so fru: as the laws and 

relations of the United St."ltes ;).fe concerned whe'"Jicr the Eskimos or olhc::: 

natl~ are natives 0.:- of Indian migin or not ru; ih<:y ate nil wmrls of thc 

Nation, and t.'leir SUitIli is in mate;:ial =pe::ts similar to tr.!lt orthdmb.i1s 

of the United States. It follows 1I!!;.t them.tj-,rcs of Alaska l."C!etrml to in the 

[1867 Treaty of CessionJ, nrc entitled ta tlnl benefits. of and Me subj~t to 

the geneml laws and rogula:ion~ governing the Indians of the United 

States.l ! 

Four YlJa!"S later the Indian Reorganitatlon Act WA~ amended to specifically apply to the Alaska 

Natives.n Nonetheless, the confusion about the status of lbe Alaska N~tlvcs cuntinucd to the 

end of the 20lh century. 

Alaska was admitted I!!; 1\ stale on Janllary 3, 1959. As was typical of I:lOst western. 

states, 11 provision in tile A!lIl!ka Slatcilool! Ac~ and an iderr.k:al provisIDn in the Alaska 

C<mstirJ.l.ioll disclaimed "all right CJr title ... to lilly lands or o!lJe:r P(operty (including flShirlg 

rights), !he right or title to which =y hI: llcld by any Imliaru;, Fh~kim()s or Ahmts (hereinafter 

ew.!l:d nativC$)" Ill1d retained these brIM "lIIlder the absolute jurisdiction I\Ild eontrol of !he 

United Sl2teli until disposed of under its IlUthorily.",33 Su. monlhs later, in II. long pending case, 

1h.c United States Court o[Claims affum~d the. aboriginal title of the Tlingit IIIld Hroda Indians to 

virtually nil (If i:IOlJthcast Alaska.~4 Thi$ decision set the stage for the settlement of the broader 

Alaska Native claims to aboriginal title throughout the new Slate and lm.pliciUy l"eje~[ed the 

nution that the itlaska Natives w~re ''unique'' IIlld not entitled to sud\ clairlE. 

R.es;lOnding to these ""laims, thm Secretl1ry of the Interior Udall iropllSlld a land fu::::ze on 

state Se1ectiCHlS under the St1lrebood Act. The StEle cllllJlengcd Ir.c land freeze, but tlrn N"mth 

Circuit court of Appeals aff"lllll.ed that the Native daL'II 10 e~clusi"Vc U$c and occupancy was 

sufficient [0 prevent the state from mllkiug its ~dcc:tions under the swtciJf)od act until the claims 

were resolve(t~S Two yems laler, ('..onw().'!~, exercising ils plenary power, enacted ANCSA, 

txtingulsllins aboriginal title throughr)\It Alaska and confirming what would 3l!Iount to 45 

million acres of surface and sllbsllrface (:Stam to 12 regl'Jnai and more than 200 village 

corpomtions. 

The on!y mention (If "tribes" in ANCSA E in the definidon of "Native village," which 

inclmles "any lribe, ba!ld, claD, group, "Village, oommunity, or assocIation in Alask!:." dl8t 

31 Surm.<qf A/""ko. M>tiW'_<. 5~ T. n. ~93. 1 Ol'" ,~Ol. :J03. 310. (1932). 

" Attoft.la!' I, 1936. §1.41 swl250 (25 U.S.C.§4733). 

II ActofJuly7, 19$8, §4, 72sLot. 339. S~alSQN~ XII. §l2grtJl~ N.,Q Censtilulilm, 14 T!IIlgit~1ld Haldr: v. U.S .• 147 Ct. CIs. 3]5. 171 "F.Supp.452 (J959). ,J Ala<k.:I v. ()d~ll. 420F.2nd 93H (9"'Clr. 1969;1. 
107


517d7.eps

qualified for ANCSA b~.uefits.)6 The residents of each Native village were authorized to 

organize a "Village CrupO!:ltion" 37 whit:h is defined inANCSA as: 

:11" •• 4Jaska Nlllive Village Corporation organized ulldcr!he law of the 

Staw. of Alaska lIiS a b:lsin= fm: prom or nonprofit corporation to 

hold, invest, lOanage zndlor -:listribu!e lMl$, property, funds, MId 

uther rights and assets for lIIld behalf of a Native village ill 

llCcomll1ulC with the terms Qf (ANCSA]:lS 

TIle vmage corporations were to rec~iv~ th~ surfuce lands under ANCSA and tJw regional 

corporQtions were to I1':ccivc the subsurfar;e of those l~nds as well as, in some cases, additional 

surface and subswf:;ce l:mds.l9 . .>Jtbough the ''Native villages" clearly included "tribes," the 

cotporations were no! initially considered to be. tribes. That soon changed. 

In 1975 Congress e-.'lllctcli the Indian Sclf-Del<lm1inaticn and EcillCation Assist= Act 

(".!SDEA''). The lSDEA expressed a fum Cllogresslonal commitment 1:{I: 

the malnteo!lIloo of the F~der;a[ Government's uniqnc and 

continuing relationship with, and m-ponsibility to, individual 

Indillll lribe~ and to the Indian people a.~ a whole thronJ:lh the 

estliblisJuuent of a meaningful self-det<:rmination policy wllich will 

permit all orderly IrWlsition from the Federnl domination of 

programs fm: and services to lndians to effective and meaningful 

participatiOn by the lndian people in !be plannillg, conduct, and 

administration of :h05~ p-rogmms and $er\'kes.* 

The ISDEA required the CO!ltl::wting of federal pwgrams to nn "Indian ttioo" Of the 

trihe's designated "'tJ:lb~l organiz~lion" The ddinilion of these t=rn: was crudi!l. ''!ndia! tribe" 

urnit:l'the rsDEA means; 

luJ.y Indian tribo, band, nation, or other organized group or 

oommllllity including any Alaska Native vii/Ilge ar regianal ar 

village corporaffon as defined in or ~~tablished pursuant to the 

Alaska Nl\ljVtt Claims Settlement Act, which is l'OC'Jgnized as eLigibla 

for the speci31 progrruns and services f'llovided hy the United Stnle.~ 

w Indians bt::Cau~e of the their ~tat\ls as fudiaus. (Emphasis 00cled.)~! 

A "tribal crz:m~ation'" is defined in impcrtant part as "any legally established oq~aniza1inn of 

Indians whlch is OOI1\.[olled, sanctioned, orcbartetl by [the governing body of anJndian tribej:,d~ 

~ Ao;t of December 18, 1971, §)(c), 85 stat. 68$1 (43 U.S.C. §I002(c)). 

43 U.S.C. §1607(a). 

)1 25 U.S.c. §IGOl(j), 

19 R!!glonal o:n:poI1ltioi)!; were ()!'ganilod willtin each of llle 12 e'Jmic '''llioru of Aloska umler 43 U.S.c, § 160ii. 

.., Act of l.nuary4, 19'15. §1 (b), sa sta~ 2203 (25 US.C. ~4:iIb(b) • 

., :o.sUS.C.s4SCb(c). 

" Jd. al2S U.S.CO §o;$lJb;l). 
108


517d8.eps

TItus, fuur years following Llli,l enactment of ANCSA, CongW-SF identified three ~eparnte 

Alaska Nauvl,I institutions as "trib~,~ At that time and up t'O the present m'Ost Alaskan Native 

villages are also organi2ed as oonsort1a 'Of l;egiona mlllprofit corpomtlon~, Which were ideally 

suited to ar.1 as .. "tribal orgllIlization" fw {lllrpOSCS of ISDR4. contracting. This resulted in the 

rapid contracting of BIA and IHS satVj~e.s to thos~ organizations, as well as in many ClI..'lCS, to 

individual vltlage trlbes.4:J. Moreover, the inclusion of tile village and regioolll ooqJOmtioo5 a~ 

"tribes" enabled the ~.crporation~ to obtain contracts lllIdcr tho lSDEA WMn Native vil!ages were 

not avaUablr.: for- contnIcting,44 

A yenr earlier, C(lIlgress had ertu.cwd !he Jnd-ian Fin811cing Aet.~s Tlu: fndian Fil!:mcing 

Act also deffncd "tri.bll" to mude. "Native villages and Natwe groups ... as defmed in 

(ANCSA].'..!o Moreover. the Indian Financing Act defined "reservation" to include ''land held 

by inoorpClnlted Native ~Up5, regional corporations, and vma~ corporntions lllIder the 

provisions of (ANCSA].'04 The lreatmeflt of all of Alaska as being "on or near the reservation" 

is also a longstanding federal pcU"y. Tlli!. United St.tes Supreme COlin h::l$ df)!;o\Cibed this poliey 

in yent d<>tail as bein'is lhe googtaphic area in which BlA $ocial service progtams are 

implemented tn Alaska. CUrre!lt ~oclal senrie~ regulations also. define ''reservation'' as 

"induding A1a.->kn Nmive regions cstllbll$i1ed pursuant to the Alaska N-.ttivc Claims Settlement 

Ad,""" Moroovcr, the Indian Financing Ac~ dl'ffuitions of ~ation :md the ISDM definilien 

of tit-:. l\lO clmum;Ili!.Y repea>.ed in more than twv-dozen federal stnrJtes enacted over the last 

twenty ye>ll'~.~ Tn fact, o.~ 100 !egislative acts define A."iCSA rorpomtions as "fud~ tribi:S" 

or ANCSA lands as "Irniiun lands." These sta!lItes include ilie Indiuu I;lealt.\ Care ImpIO\'emet:t 

Act of 1976, \Uldec which h~ of mlllion$ of dollars in health Ca.l'e PlOgramS llIe now 

provided aIIJlually thcough the AJnska Nntive Tribal Heallh Consortium.S) 

Likewise, fcdcrnl courts have upheld pNferential economic b;catm~t for Alaska Native 

oorparatil.'ns IUJd Native-owned entelpli:;..s. For eJl>ample. under Section 7(b) of the ISDEA, 

preferences in su\x:onlI1lclS WId cou;rac\s 1Il-e to be given to Indian Oi:ganb:atiOlL~ and Tndian 

economIc enterprises in implcmentirJg hoosing and a."Jj' other progl1lil1$ u.<ulerthe ISDE.i\,n The 

Akcl:a Chapter of !he Associlrted Geneml Contractoc; clrolle~<>ed these regulations ~ applied 

.; S ... Co:I.>c and V"lu~~ at 221 -224 descrlbinglhe ~ffecl of Ibe ISDEA ill Alaska. 

+< CaGk ftIl_t NatI~A!;n. v.1I<lwen. SlOP, Zi 1471.1476 (9"'Clr. 1~B7) (ANCSAlc&lon~1 corporniQn hekilO be a 

tribe lOr P"I)KII"," of ISDEA COMr'l.Cling for ~ltl1 and <It/le:r Ccdcrals.rvices.) 

<l Act of Aprill:!, 1914, SS.tal. 11 (25 U.S.C. ~14..~1 ""~"~l. 

"'Id. 2S U.S.C, !l4S3?(,,) • 

., fd. 25 U.s.C. §4j2(d) . 

.. Martor> v. fWh, 415 U.s. 19!1, 112-113 (lS74}. Ol:I.hnma NatllleS have his;arl<;all'l b~~FI afford~d • ,imif;lf 

s~ed:ll tn'atm~nt • 

.. 2S C.!".!t §W.jOO "R=rvM;Oij." 

'" See e.g. 111rll~n CMlrl Prm..:tioa iIIld F~mily Vid\lrn;e Act ~fNowmber1S, 19% (2S U.S.C. §S202(9) Ilefmitlg; 

·'lndian reservalioa" 10 in<it>;!I!.imld held by Ale5h Naeve t<Q~P~ On region.r fJr ~m!lZeCl!Iilo.'llIio.,1s ul!dcr ANCSA 

~nd (lD) <l~'m!ng "llIdhn tribe" !Q b~ tile s:ur.. a, Ih~ definition u~der the lSJ)S'\': S~~ also Amerkau J;tdiui' 

Agri'llliure Rcsour<:(! Managemem 1'"" of PN:ernber :;, 19>3. 25 U.s.C §3103(l(l) -defining ""Indian tribe" to includl! AJ~!b Native vill3ge or regional cOI'Jl'I,ll'all(JlJS, 

.. 25 US.C. §!6DJ et seq. The Acr. cIofmes "lndla~ 'l'ri~" 3S including ANeS,<\. cQrpo!';I.tjons. 2S U.S.C, §IGQ3{d). 

S"" 3)<0, OIse /I:: VQlucl<, 'npra~ nOle 2 31220 -1..21. (Deserlbirc the scope of these- pr0Il":Ul'\l;.) ., 2S US.C. §45o.[b). 
109


517d9.eps

10 D<:.partment ofHou~illg IUld Urban DIlV(:lopiDe.nt pW&lIilllS. In upholding the. prefel'<)nccs the. 

Ninth Circuit ¢O!lc1uded thll'C 

Congress hilS utilized 1IlC!hOO~ oilier than :riWl ran~ or proximity 

to reservations, which have genemlJy t7ellll. ~ed as eligibility 

criteria In Sinturory !\rovum~ for the booefit of It:ulit\l'~ The 

Supreme Court lms :already noted and approv~d Olm -rit..-di diffe.. ..tmt 

treatment of Alaska Natives.n 

More broadly the Nin!h Circuit noted !hat: 

It is now esmbHsbed that through [the 1857 Treaty of Cession] ule 

Alaska Natives are undoc the guardianship of the federal 

go"'elT'_'n~-ut aud ~ntitled (0 !he bcndiWl ofthe.speci1ll reJationl!hip,s, 

M(IJ'C ~ly. tbe District w Colw:lbia CirOJit Coon of Appcr;l<; has si!:nilm'ly upheld II 

p,.ekl'!lice b defen$C «mtraetirtg specineaUy benefi"Jng ~ A~ Nl1t:ive .t:i'It'pO!'fItions.. The 

legislati:m oo.abled an Ala:d;a Native corporation. joint VClllure w obtain a pref=tial contract 

fur tb~ liIm:agelllCrtt {)[ a federal nuT:l>l.t)' Imse. Udi.ke we oilier llMtUtea d:Scul!.S(>:i :roove, the 

DefeDse Approp;.i.atlou Act .. adopted bet'l'<1:e1l fiSCll! yellrS 1999 ru::d 2000 111l~ II pref=nce in 

federal contracting for flmlS of at least 51 percent "Native Atnerk..m oWlleIShlp," Th~{Iint 

V<:lllm'e appUed for and rer.eived 13- prcferenlial corrtractUllT1anage Kirtland Air Fcrce Base. 

TIl!) D.C. Cirellil Court rej..::!ed the argwm:nl that the: pre.furenoe was taeially based 

because: "When Congress ~erckc:l this CQ\lStitutiona! p:>wer [unc!CI:' II¥; CQmmerce Clause] it 

neres:snr'ly m,,"St engage in cl~5SiOOtioos that 00ai with Indian tribe~,")~ The court noted that 

Cungreii~ ltas the- exclusive iluthoritv to "delerm!m:. which 'distinctly Indi."W co.;nmullitJcs· shook! 

be reeo.gni%ed :IS lndian Tribe~..',n The CQU.'t IhI:tefore upheld !.he COOlractir.g prefel'tt'!Ce as 

appnoo to the Alaikll !:>til1ive <:Otp<>rations .e,>,<,n fum._,gh !hey -were nil\: .specifically deliu&! as 

''trim:$'' lr. the D--...fuMe Appropriatton Acts.jt This decision implicitly oonfjnns the 

wretitlltiooolily of illl ewiw ~ent tu meSA !:hat 5111tut.orily qualifu.s AJilSka Nalive 

Oirporutions liS "dbaclw/llltagcd buslnesscsN for ptlJpos<:.~ of Ule federal 8{1I} oolllmct seHl~ide 

progrnm.. S~ 

The COllsolidated Appropriatiol1!l Act for Fiscal Year 2Q04 di.."eC1.ed the Office of 

Management and Budget (OMB) to e=lt with Alaska Native COqJOIl:ItiOUS on lilt same b~si's ~s 

IOOian Trlbes urnler E:;<:eeDll\-e Order No. 13115 .. w S!milady. <he ComoJJ,;bted APlll'il£lrlatiOf>S 

" AImJ:a C.""';II~r, &rudat.aJ Gu.m:' Commcwn Ie !>1"'L"i', 6!M P. 2.nrl 1lGZ, !l69 n. 10 {V"C"B' .. 1!lS!!)cilir.» 

M>rnm. v.1W;~ ""J'I'" at =4\1', 

54 Td. at 1169, /I. 10 (.i\31"'" om»lte<1). 

lJ """""""n Fede""!I"'~otG.>wrn."'''''' E"'plf>Y~CS v. tis.. XlUR. Srd,S13 (D. C. Cir. ::1M), 

"l!l. Al 52!. 

.. Id at 5.1), ~itin& U.S. ~. S<1n<lo.~~ 231 U.s. 29.ltIjlla note $ . 

.. To!. at 522..52:3. ("IJ'JromotinG the ooonOO'l5~ del'eloprnent cf MenU), r~eogntzo:d lildl~n \rRle; (lind th~ir 

me/lll>:rs) .. ratiul!ally rel.l<!d III a t.gilim.te letislative p\Itjlose ~ndtllus. oonstitutiol,al"). 

"43 U.s'C. § 162(i\<!) .. 

"'s.'el"orh.. ... />;\>, !Os..19!).,D,~isi!)nH.S""&>I' lril. 
110


517d10.eps

Actfi'lI ~ Year2005 requil:eI; "aU Fedeml agencies," in addition to the OMB, \6 {;()11~1l1t with 

Alaska Nal11le Corporatiol1~ ptmrnilll! 10 E\ecmlvc ()(de( ~] 175.01 

Beyond the =gre~,iWlllI tre~tIIrent of the Alaska Native eorpurations as triiles for 

Cl>J.'t3.in putpO$il\l, it w also now ",,,J] estllbJls~\ In d\(! general :mIlS"" tbnt the AIII.«D Nntive 

vi~ {also der1ned as ''tribes'' ill ANCSA) all froeraUy R'oognized trihl:l go,;>'~~nts. Owing 

perhaps IQ .bJ'.'CSNs Qmission of tribes ill t!re seUJr.mellt, it tock m(lfll -:han twenl.y )'I)alli of 

litigation \<) con[:,'lll !helr $llus. At the em! or ihe fIrst B\l~h. kdmblistraticm, Thomas L. 

SWlSonetti, the SaUdlm' fur the Depamnent of Interior, issued n oomprehensh-c. 133-page 

opmicn examining tl!e h.llltorieal St.mlS af the Alasb Natives and their eJ)!jti!Iued imtitlcmcnt In 

[edernl services m:d progrmr.s. AlIlltlugh tiJe opinion s!))ppeG sOOft of deqdillg that all the 

Alaska villases were fedel'allyreeagnized tribes, it noted in conclusion that: 

In our view, COllgres~ lU1d the E>;ecutive Branch l}ll\'tl beoo. clear 

and consistent in the inclusion of Alaska Natives as eligible fur 

lHmwts provided under a numbct of stmules passoo tu bent'lflt 

Indian tribes anJ their memb<:rn. Thus we have Stated thar it wonld 

bl; bnpr~per 10 cr;nchdc thai. ,.0 Native viUage in Ala5ka could 

qualify as a federllliy reoognized !.riba. 6>l 

Nine tllDOth.~ later the new Clinton adml,li·.t....moo published 11. cornptehensiw "Notice" in 

the &dual register listing mure thWl200 of the Alast:lI Native vinago:s a:ld two regional tribes as 

fcderaily =&nized Illdian tribes. The Nocire state.<; spr.elf!C!Illy thllt: 

TIll, list.is publil\hed tu t:larifl' Illat Ihe vm~gc,<; !\JId te.glollfll trfl:t;$ 

l!-~!:ed below are not simply eligible fur ~ocvlces. or rcoogniz.ed ~~ 

tri~ for certain na::row ;mqroses. Rather lliey haVe the same 

gqW!rnmemal SfCltl48 as (ltMr federally Qdmowl~dg,;d Ir.diaJl rr.bes 

by ~'illue of their 1;t(J;('.(S ~ Imlian trfbt!s with a gtJv!tr/llrml/t·tq, 

gOVl'rnmetlt rrlatWnship with Ihe [Jr;i11llf States. 6:1 

The very ne:;;t year, Congress passed !he l?8dsralIy Recogniwd lndian Tribll List Act that 

required !be lI.:muai publication ofa Jist of aU federally m:oNlizcd Indirul tribt;$,M Tn 1998, lifter 

umuy years orIiligation, Ih'" U!Iited Stares SUpreme Court denied territorialju..;sdictloll toAInsIm 

Native tribes to impo~e a. tlJ: on non..Natives on ANCSA land now held by the trllle. 6~ In 

re<;chiIt-.;;; its.kuhlw\,!he Supreme Or.mno\<;d wilh apparent approval dm: the eff~(:1; of ANCSA 

was la ICllVi'! ~ Alaska Native vilIage'l !I,~ "$(>v~gns, wIthout leffito:dal reach.~M The lle1:! 

y=- :he AlUllka Supreme Court c<lociuded, in a ground"brellkUij; decision, !hilt cvm without 

wmrory Al1l5ka Natlve ... lllagus. a~ fulkndly =o1;.l)lzerl tribal govl!mme.'l:t$, retained Inherent 

jrni~diction ffi-er their m~mJyo...r:; e\'en outside of lndian c:ounlIy, sufficient to dl'..wmim: II c,':ii!d 

~ ......• ,,--:-::: 

II S"" ""b. !,!'fa. 10il-447.DJ\", if, Till" V, S::c:!'en~l3. 

R ~GQVenlmen1al IurI;<ti<:tiQ1l of Al"~~. N.thl' Vj!I~1:'" Over f:lnd ZT,Q Non-Mmllx:r5~ {M-S~m, lOU'.)j"Y II. 

1993) . 

.. 58 F. Reg. S436S,54~6610ctoOOr 21, (993). 

6< See:!5 u.S.C §4'I9a 11(1te, 2Uld 479a_J "MW n. ~upra. 

os Alaska~. Na/>'va V/1!G8f.o/V<!IW'f~,j2ZU,S.$:'Jl (lm) • 

.. [d.a!526. 
111


517d11.eps

custody andr.l(Obably other Hintemcl" matters significant to the exercise of iilher<:nt lnb~J 

sovereignty .. 

IV. CONCLUSION AND RECOMMENDATIONS 

It is IlOW beyond doubt that Alaska Native villages, as well lIS ANCSA regional and 

village corpQfations, arc fcderally .. ~cog:lli:zed ''tJ:ibC8.'' The "Native viUages" dcfwed in 

ANCSA, thc ISDEA and other statutes and listed undeJ: the requlrerr,ents of the Federally 

Recognized Tribe List Act a,-e mbal guvemmcnts with pDliticaijurlsdictiOll we. thcir members 

Iifld p!.-:haps others.. Alaska Native regio!lllillT'Jl village cmporntions, as dei'iood re. Ql established 

UIlder Al'iCSA, are ais':) tribes for pmposes of p2rJculllr Statutory programs and seror.ces, 

including preferences in govt=mment contracting liS authorized uno:k.r federailaw. As thl;: United 

States Supreme Court decided nearly a cemury ago in the case of"distlnotly Indilifl communities 

... whether to what eXtelll and for what time they sball be rer:ognized ... is to detennined by 

CongmsS.,,6; In this respect, Alaska N~tivt: villages and ANCSA regional and village 

corpO:tation~ life squarely within the scope of Congress's plenru1' authcmty and trust 

responsiblllty over Native AmericilJl pollcy uJlder tllC CQmmcrCt: o::Jau~c llf the UJlited States 

CQn~lil\lti(>ll. Congress therefore bill! tile same authority to legislate on bclmlf W' a.1l the 

"distinctly Indian oommunities" of Awka tlil it docs :h::oughout the United States. 

AFN agrees with we rocommendatrons of many of the witnesses at the hearing who 

urged Congress to reverse some of the US Supreme CODrt's holrliags tbrll: have been adverse to 

mba! tig!!ts, IlIld reassert itselfas the primllry polir.:ymaking entity fur the federal government. A 

clear statemcnt of the general trust responsibility of the federol government to Indillll tribes 

would be helpful in ensuring that all federal ugeueics and the r,,:del'a! CQurt5 acknowledge 

Coogre.~.~'s primm;y as the Jead polir,;y :maker in Indian Affairs. In doing so, Congress should 

link its [CIOtatement of the federal goveIIlJ'Mnt's general trust responsfuHlly to the provisimu; of 

the UN Declaf3tio:J on the Rigllt8 of Indigenous Peoples. 

In rerms of Maska sp,.'"Clllc reJOrllmendatiOl''s, we elIer the following: 

1. Congress must continue to refine the go~s cOllSultl'lticn policy so thlit fi::dcral 

agencies Iecoguize and respeGt the instiMiooal development and current of!;anizalional 

structures and intcrrelati0J\5blps among Alaska Natives. Neithex ~~C\l.tive Order No. 1~175 nor 

the congressional acts requiring oonsultatlon with ANCSA co[pc!tatiom on the same basis as 

IndiM tribes~~ require separate con~ulWtion policies for Alaska'~ tribes and ANCSA 

r:orpoIlltiom. Yet, the Department of the Interior has implemented dUll] consultatiOll policies for 

tribes and A.1\lCSA corporation~. We bolleve the dnal cOllsul\ali(lJl policies will ~I\teaddilional 

demands and potential confusmn and even txlnflicts within villages th:lt have both an ANCSA 

corporation and a federally recogniIed tribe.. Also, neilhe:: cilllSultlllion pnliey provid~ II mle for 

Alaska Nfilivc regional oon-profit triua! conSortia, These orgliniUltions pwvilk SeM<;:e.s and 

ins!itutional support to villagt',s within their ~gWns, and lite pMtfcclarly iEIipOl"trult to smaller 

villag6, which often iack the finM~lpJ ruv.I buman resou:rC6 to provIdc the services mat a 

reglonnl (!lUity i~ Qble to provide . 

.. Jahn" Sdel, 982P. 2nd 738 (A1Mb 1999), 

.. U.S. v. S~ndPl",I,23 U.S. note: ~ ~upra~t46. 

~ S""notClI6(}'mI61,suprt:l. 
112


517d12.eps

2.. CQngress is urged 10 en!ll.lf'o'; tl'lat AIII~ka.'8 tribes, ANCSA CotpOp~!ions. and Alaska 

Notlve organb~tlODS. are mcluded os eliglbJo Illltitic.> in fedeml Jnd{m l~gislatiDn intended to 

benefit N~tive. Americans; and furth¢r, thnt ANCSA C()rpon!tiorllnnd~ and llU1ds owned in fec 

by federoJ.ly :recognized tribes in AI3Ska be- included in federal L'ldiWl legisbtion on the same 

~is as tribal tmS! and ream;vation IMds.. Too often Ahska'~ ulullS.2I:e ccn!ed the benefits of 

m:ljor Incfum re~lal.ion became they do JWt ~y "I!!dror. country." Ftt =~ the 

Departm1mt of Eiuo:a!io;J ill cl>nently Sl,..{i.rjting lqlJilicatmm for the sw'k-TIfual Erlucation 

Pmtnershlp (STEP) pilot Under the pilot, wmpetitiv-e grants will 00 -awarded Ie U::i'bal 

Education Agencies (TEAs) 10 incmllSC !heir role in the education of American Irtd!aII and 

Alaska Nattv" ~tudenlg. Unfortullately, Ih~s(\ gnmts will only be avalM,Ir, to TEAs for sclwolg 

locmed O!l fudlan reservatioJlS. thereby i.lxe\uding most of the TEAs in Alaska. 

j. CmtgfeS~ settled Alaska NatiVll Jand claims but did not deal with our hunting and 

rtsl:ing rizbts if) ANCSA. Instead, it ('.)\p~~,ed boUt the Secretary of !he Intru:ior and the Stote of 

Alllska 10 ''t!ke any ru:tion necessary to protect the wbsmence need~ of the NlIlives, .. 1Il That 

tll"f=tM:ion was not fulfilled mil the cunent program wllbJished in Title vm of the Allllllm 

Natiooa1 L,rot:e3t I..:mds Cum~tirn kt (ANfLCA), with. its rural. p!l~fw= fill' 3~bsi~!= 

hMli!lg ami. fishing. hal; proved iooderpate. It does !IDI: =me food soomLty fur our pw?le, 

Pr{).t~.etWn of Nath'c lIummg, fishing and gatileriugrig.':!ts is a p:lrt of fc;Jcrallaw tllnll1ghout!he 

United State~, The right to food security for oneself:md on~'s fllllllly h1 ~ basic human right 

Justice atId flili:nel;s require that Cont,"T(l$S, in OOI1sultation with ,A1(\$],:II'$ federally recognized 

tribes, con5id~r options that reach back to Con~s's original expecr~lion that Ala~ka Native 

hunting, fhhlng and gathering rights be p{()t:eCI~d. 

4, Con.,"ress shauld empowel: Alaska. Nalive Villages to deal with VIolent crime and other 

problern~ impacting OUF people. T.b<o:- stale of Alasks:s public ~afety system docs not eff~ctivel3' 

~""e "lISt- ;tWIlS -ol (he. ittte wr"em. umny temcle Aim;b Native .... mages- are located, \lXcept :rt 

response to cOmes tfutt r=,m is severe in,.iur)' of deaL!;" The .... 1\St:majority af Alaska Native 

omtI!Il,Ilitir;.~ hllve 00 fmmil law .en.."otcement pres:m= 1n Ihelle romlml!)il:ies, tribal cititens 

of'Im. ",JDl. to their tribal. courts to sec\.l!e immediate help. A pilot pmject, such as tlI~ one 

provided fot in 8.1192, -should be !1SllIbllshed to allow a sdecl mtmbet of Alaska's tn'bcs t(l 

enforce tlldr civil tribal ordinllIlce,~ deIlllng with possession and importatIon of alcohol and 

illegal druB~, allQ with domestic violence, a~l)au!t 8m! cllild abuse. Sllch a program would ann 

tribal courts with !he ability to stop violence at the cllfly states befCl~ !hI' crlme.s e:;calate II) 

as:gravatcd ~~saolt, r8[!e and homicide, Improving law enforce.mel\t in the villages and 

em~<s Alasia's Iribes to ad~s these i~snes is m:cessaty ttl fiU the gap in lO<.:al authority, 

.arui er:sure dcme~tic safety fur village residents. 

5. The S=tary of:he Interior Is umemly h=d by reguiatiO!.l, 25 CPR ~ lSi. fur.h 

takillg land into ttust lnAlnslru ou!Sitlc the Metlakatla Reservation. 'lbe re;grrlatmy bm" 

probfuiting.llll !nJst!md m:=quisltkms in Al~a violates 25 U.S.c. § 476(1') and (g) (which 

guarantees all tribes equal treatment). It!~ e,o;tlmated thatAlasl::3.'s tribes collectively own 

approximately 100,000 acres oflme! in fee. i'hcselaruls do notbave any q>eeial prrr".ectlOP~ 

from l:3u.tinn or from potentiallcm through involuntary COllVtl)'3llCeil, blmktuptcy, or imminent 

domain. 'l'bt.l Secretary should be allowed to take tribally owned land int<,) trust ill AIllska 

-----:-:-:;-:--.,-

,. S. Rep. No.58!, n""CQng. I" Sess. 37 (1971), 
113

PREPARED STATEMENT OF HON. LEONARD MASTEN, CHAIRMAN, HOOPA VALLEY TRIBE


517e1.eps

Fullillmeut ofthe Uniwd States' trust responsibility is orutmost impol1llnce to thll'Hoopa 

Vulley Tribll.. We CUllllJuly have: J,OOr; trilJal members (1m! the largcsl reSCIVation in Cnllfomb. 

CllVcringll[lllIDxhnal:eJy 144 ~-qll!lrc mik:s. We were :lmoJlg (he tirNt li1:r ofsclr-govcmalllX trihes. 

having pilrticipl!(>;:d ill IIF.: dcmonsllOlilOIi pro~t, lind !hc firs! in the. nation 10 have il~ c,omp;IC( 

wi!..; !hc United Stn:cs signed. Tnroogh sclf-govcnta."lcC we have heel! able to leverage fedcrn! 

dullars In fMd out' pmgram~ aU of which ~crve lIS alTlell"S to Il:o:crci:<e oLlrsovcn:l,,'llly, [lrt.."ll!rVC. 

prolect ~fl(1 mmmgu our (rus! <l.sscts nnd provide s~rvlccs llrn1 benefits for ollrmembers. 

We nrc grntcfollbr lhG opporlunJ(y 10 [lllwide our views for the record 011 Jillnlling the 

(ruSI responsibility. It is of rundamental signifiClln!;C II} Indian nalions and, wilh Ih<: recent 

creation of the Nnlionn! Commission on Indinn Trust, it i~ an impl}rlant limo fur Iribes 10 be 

CI1gaged In lhe dl;~lls~irlM ofhl}w 1111:: Inm rc:;[lon~ibllity ~hrlllld bccorricd out as ollr rclalinnship 

willi- the Uniloo Sinles mtll'~S forwnn:l. Our testimony focilses an the Uilited SllItes' fulnllmcnt 

nrllro lnlst re~:po!lSihmly run.! so!r-govcrnanc~ 

The fo'cdernI Trust fulsPl.U1Sillilily 

Olhers ha.l'C provided for the record comprehensivc oocl(gronnd~ rm the migins am! 

nnluro Or[lle Uniled State.,' trust responsihilily. We bria!1y set forth the f01Jndnlil}n of[ll(': lrust 

respol1sibilily bernl"\" lookillg [orwaru on huw it shDUlcl he. fulfilled in this IlIlW ceu!\lry. 

The lrust responsibility is TOoted in lrcalies Ilml provisiolls of the Indian Commerce 

ClanS!: (u.s. COM!. mI. I. § 8, 01,3) and [hcTn:;lIy ClalL'C (U.S. CUIJ~[. nrt. lI, ~ 2, f.l.2) ofUnilctl 

S{U[cs Omslitulion. 'ntc cases or the. M(lrsh(ll! Trl!fJg)1 ill.le;Pf<:te[J the meaning or !he Indian 

Commerce CI~use. In Clwrokel' Ntltiul1 I'. GL'Glgia. Chief lustlw Mnrs[mi!'s opinloo 

admawlcdgcd tll'~- Jegal Slaws ufll'lbcs m; "rlls(]n~t flOlitiCtlI ~x!l;:I{i~sj ... c:;pablc orman!lging 

rlllei.} own nlTmrS il!,;d g.:wernil1g (Illemselvcsj." 30 U.S. I, 15 (11i3J). He \VCffi un Hl 

charllcterize tribes as "domcsU: rlcpcndnnt !latium," /d. at 17. likening the rcl3tiol1ship to lhfl\ of 

ahward 10 his gUlIrdhm," kl. at 17. As Cohen'S Handbook I}fI'cdcrallndian Law ~lulW> 

Cftul'<Jimu Na//(m 1', Gtwrgiu provided the b!'lSis fDr Qlmlogizil1g the gO\lcrnmenlIo-gl}vcromcnl relalionship bclw~cn tribes nlld the rL'tIcral govcmmCllI as II InlSI 
114


517e2.eps

it!lnlilmsbi" wilh 11 COllCOmlmnl H:tI::rnl duty 10 V(ll~'d Ifibu! liglil" [I) L"Xi'!i cas selJ~ 

gQvtming Cll1jjjes. 

~Jtx S, Cohcl1'~ II~n~oot)k on fcdcr.!llllr.ii!lll LillY, 420 (20[15 Bditicm). 

In II'nrc"'.il~/" 1'. Gl!orgitr. Chief JII$I!ce M~rslmll c!llllinncd lhe Chemk~e Nntion 10 be "n 

llisHnCI cOl11l11unity occupying US OWr! l!ltrllllf}' ••• in whidl the laws Qr (lC{]rgin ~'tm havt: 1111 

fo:ll'l:c •••• " Wlli';;'!."""",}l U.S. <lI ;;(,\. llc pi.ll lbr!h the lend tum tribo5 r~/rulim:d "t:P;ml\c 

[Y..llili&ul cntili;:~, deapi!c eo!ulllz:ation, $~l wuil~ tbey ~cd HIe "rr<llt!ctirm" or fi muro 

pt'IYCrfulnll.t1ml, ~ltclll\\!eepwri~ lUd flO'!. divest trihcs of 5etf-W"Vl!mllll!X. hi . .at 555-55'), ,5(,.1 

("A w:JUk Slal~, ill ;:mkr \(l ~yi-rl'! !Or il~ !mji:ly. lI1liY p!li<,;e itself 1,Uld~'r :1:2 proJcrtkm of one 

m(lEe;pOWl;rflll, wllllO!!t slrlpping Ilsdfoflhc rlgill-ofgovernmenl, l!I'.c cC~51ng to bU-ll sL'1tc.'1. 

m)i'al! .. ;I~r 11150 conJinneu tim! the Sllllrclllllcy Clnusc g<lVC pmv~rrul ~ITccl 10 lrcalles M 

'·the !rupmmc Inw elf lh~ hmd:' M. nt 595. Tn:mlies 3m barguinca fur 6);changCll through which 

lribes celled vas( tmcts of IIInll ilml rcS()lJrc~~ in exchange for the Ullilcd Slfi!C~' pro1ectiol], 

pruv~wn of go(l(/s lind scrvicc~ all(! support fhr tribal sclf-5umdcnQy lind liveable and 

susminublc ~mllwnilk'S.. /';S l'rc:;idcnl N\'};o)\ stl1.wl 

,"<!r their Ill"'!' [he ImJi.;H\S h,lVC o-i\NI $\!HtIlclilted cimrru; H vast l!';'lets of hrnd ami 

havo 1l~'Cl:plcd life on g,m'crmIlCClt rt:.~~rw;io!ls. In excht1ugc, Ill(:@l-vemmenthas 

~rc<:d \0 pKl\i'lde c<:lI1ufiUnilyscrvic:es slId1 ~s lJcailh, l'dtH.:atioollud pr.btlcM/CI.)~ 

5Ilr.-i()tS which would !lTC5\Hrwbly allow In(l1an cOinmul1itics to Cf\)Oj' it slamlorti 

ofllvlng compnrnblc to tllnt nt'olhcr AllIcriclIiIs. 

[)rCilidcnl Nixon, Speci~1 Mcssngu On Imlilln AIT~ir5, July 8,19'1f). III Mnrlrllll'. Mal/cori. 

lhe SUj'l('(lmll Coml oc\ rorlh lhe United Slales' obligation Jbr on.&Qlng p~rfbnnllncc of f~deral 

trust dulles: 

to (he ~c)'Cisc of.ll" war ~n<llre!\l)' jlOWC'l1. tile United StnlCS O'l'eroillne lhe 

!l\tll~ns ami ~:lOk jlOSSf!nllm a!'lhclr I1mds, mmc{imcs iry ibR~ lcmr:lIg lilCIll ••• 

• depi:lWCIiI j'lL'Opk.IICL'tling. jlml<.>t.'twn •••. Ofllcce~'Sity. the Unl!ed Srllles 

m<~lmmd lhe duty{)rlirmi~h;!lg {1m. prolL:ctiml,noo willI it thcmt!!rorily 10 de nil 

lhal wns required to perform th~! llb.1!gnticn .... 

MI»'/011 II. M(Ulcarl, 417 U.s. 535, 55'. (1974) (qnolirrg 8(lt1i'd ujCOl/Hly ClJlllnl'rS '\\. 

Schur, 318 U.S. 7[)5, 715 (1~43): see 11150 Wli/ceSfCI', 31 U.S. at 54!)-'54 (tJi~cui*l!ng l!'Cillics. 

including mild cos~ians, ~l!curing nOll pre:!erving friendship, illltl noting tIlIlt stipulalian 

~Ck'lowkdging fl'lb>:s to be "mKlcr the pratecllon of thl.l Unill:d Stalc~" "is OOUIl(! in Indinn 

lfClllies g>!!l<:l"ltlly"). 

AlklTliomdl),. ,hoc ("-,~Irt in.'>!!mioo/e Nm/m~, UllHed !I!nJ!!S wufirmed l!~ high s\,Uldllr'Js 

!he federal gO\lemm::n! mu~i Ill~ when <::nrryiugOlll tril~ llmics (J\ero ill reJiIliQtlIC lIre lmndling 

-oflrust f\!t1ds): 
115


517e3.eps

rtlltllcmmrc, tlds CnllrlllllllfCCogni7.1.:C tile t1islincti'j!; ob)lglltkm pj'{ruSl. 

iI)cumllt.'l1t upcm the Govt.'lTImen! in its d:l.~!ipgs,~itb lbcs1.:deplmck!m Md 

sometimes I!xplc,iled p~opl<.=. '" III \,:uflyil18 (lut lis Irculy obligatiQns wilh til!: 

IIldl~LJ Idbcs (he C1ovcl1lmenll~ sDl1lothinll more tlUHl 0 men:: ctm(ri/r.!ill£l pmty. 

UlldcI'O humano nod self imposl'CI poH"y whi"h llll~ rmmd cxprCl>~ion in mnny 

actS \'IrC(l!1erc..~ Hild Ollmcroll~ dcc!~I(lns oflhis CQurt, it h1l.~ chnrs~t1 ilSClfwith 

u\(Irai ohllgations of the highest f,"SPOllsiliilltYmJd Inr.:.1. Its conduct, as 'Iiscloscd 

In lm"iI~l" oflho5C who rerm:::;.!I\!. il in dcnlings with Ille lnili,'Ili:l, should tluJrolbro 

he judged hy till! most cXl)Cting flullciJlf.\" Sllllldar&.!. 

$rmU!'!(Tl(1 NCli0l11( wU1I:d S!ti.'eS. J 1(1 U.S. 2M, 29'8 (l\l~2), Further, t!Je 1977 Amcril."Ilfl. 

Indhm Policy Review CQ{llmi~sillJi cXpOllrlr.lr:d Ilpclllhe ptlrpll5l:: (If\he ir;t~ doclrine"llS folJowl>. 

'fhe purpo,c behind the (l1l~t [doctrine] is Dnd nlways hM b.!~n to insure the 

S1jf'\lj"'111 nn(j wclfar~ tJr lndl~u IrttlC.~ ~lnd people. This indWdD/l nn obHgation to 

pl'ovldo lhoso services rcquirM III nrclc..:t ~nd enhance Indian lunds. resources, 

nnd ~!llf-gov~rm/l(N1I, lind ll!~() fl\.::1tldc~ those cconnmie nml soci"! progmnl~ 

whIch nrc nC!;:cssary to mise the :;tamw;d tJf living untl weml w~U-helng (If the 

lrniilm pl!Oplc to ,I levu! cmTlpfI;;!ble 10 the fICI)·lnrllall. S(lciety. 

American Indian PQlity Jk,ri~w COlnrois~~, Fimll Repert Vcl. 1, 1977, p. DO 

(cmph:i.«1s added), T~c Cllmroisskm nlsil noted Illat "the l~rnj -Indian lm~ 1111'7, lIS L'XP~ 

bU1ll by COllgl'(.';SS nlld the cm!l1s, edIs fill Fcdcml pr-ot;;:;;lion, lmt Fcder~1 domination." Finn.! 

Report nt 10rt 

TIU! Fedeml Trllsi Responsibility lind l:Mf.GoI'lwIHlllce 

Badgrtllll'ld: Se{fGol't1rf/(//J(If 

IWeJ !levc tumcl from lire qt.;cslir:m of ldlCi!!i]T Ibe Fokrlll SOVeXllmcll! hr.s n 

rt:$poltsiblltiy to Im:jia'l'"~ 111 tim q!lIlS(ion cf haw lllill resPDIlSlhility Ct1!l best be 

lillfilh:d. w~ have cllllciu;Jctl Ihm thc rn~ialls will get bct1~r progmtnH nod 1110t 

publio mQnit:S wiII be more IlfToetil'cly expended ir Ihe people wbo ~ro mtlS! 

af!l:cl~d by the.'e! Ilrogmms nra re.'jlOll,lble iOro[leroling them. 

Ni}!O(l Spodnl Message. He ~lso slated thot "The lime hm:cClme to brook decisively will! 

the pa~w, nrul to create ihe conditions for n TlCW em in whil:h the indjllt1- rlltllfe is detem1in~'{1 by 

lmJi;m aets aod Ind~11 dccis:olls" und lIlat ", .. the l'e:ler:ll gIlvernmCllt !lI!I:ds lrnlim; CIlergicll 

Brol 'mlfan lcOO~lllp if its assi~llln..:c is 1I'l b¢ J:ffeclivc iI, !Illprovin!!, trn:: eornlillcm;: of Indmn 

lifu." Nix<>ll Special M~. 

l1tc j(!(Jino ~if-DCIC!'milmti{l'.l 000 Ilduca\;e!l Assi:s!ance A>::t (ISDEAA), 25 U.S,c. § 

450 ~! seq" 1I11ow5 tribes to contrnel wilh (he United Stllles to 'lake over udministration of 

progrnm!l carl'jed Clut by the fcclernl gOl'erlllrtlll11, fadlilllling trihll5' planning !Ind udministering 
116


517e4.eps

or pmgrnms [0 govern [heir Innds nnd provide lor Iheir m~mbers. 1l1e Tribnl Sell:G(lvcm:lnc~ 

Act of 1994, 25 U.S.C. § 453an et h-cq .. nllow~ a tribe to entcr into a coln]JII~t wilh the United 

Slates fer nil programs Iho tribe nssLlmcs. Self.covcrnnnC<l 11lloWS tribes more f1c.~ibi1ity in 11m 

IIdminL<:tmtiol1.lIcsign llml cOllsolidmion ofprogmms oml in Ihe ~1!oc:!tion or Ii.lnding Hmong 

Jlrogrlllll~. 

Through S~lf-Govcrnallcll, ludiliU Country Ims cxpcri~nced nmny dynnmic nnd 

pi(Jn~erilig challg~s llver Iho:: Inst few dccndes. Selr-Gov~rnallce tribes 11IIve prugn:..'\$iyo::ly 

moved to 5tabilizc funding bascs, improvc ~nd expand scrvices at tlle reservation level, and 

increase ~tamllg und IcclmicIIi capabilitics. Tribes hove llecn nbk 10 strengthen tribal 

govcrnmcnt [Iud nslabIi5h ndministralive wpability. Tribes hnve bccome elTeetive par1n~rs with 

Ih~ Uniled Stalcs, working togctll~r 10 positively Hddrc~~ IUld resolve ck:cntle5 ofbuckloggcd Irnsl 

mmml,'<.'nll .. 'Ilt is~u~s. 

Sc[f-Govcmlulcc spurred nn illlpor~1nt tl1'llSilioll from ImrCllu~rntie OlIC-sizc-filS-nH, 

rCdCr.llly-dominntcd programs 10 flexible triIKtIly-dlJSign~d !1IIt.! ndminislcred program~. Tribt:ll 

nrc in Ihe besl position 10 dctcnnhiC whnt is needed by, and how 10 provide for. their 

govcrnlllL11l~ IIml mem!Jers. Prior (0 Self-Govcrn""ce, Ihere WIIS II luck oflriblll pvrticipalion in 

ucsignillg programs ~nd setting [lgcl1d~s. Instead, Ihere WIIS .1 reliance 011 fedcmJ-projec\ 

plnnning, ilnd the fed~mlly_d~vc:lop~[1 pmgmms were nat only chnmiclllly linder-funded, thcy 

did not meet the on-the-ground needs of Indian people. Self-('JOvernnnec nffnrds tribes the 

opportunity 10 take over the plnnning nnd development of these proCn!ms, und since Ihe 

programs become bllscd 00 Ihe priorities nnd oect.l~ of lmlinn communities as dctcnnincd by the 

tribes, they wurk. 

Scfj-GawJJ'//U/Jw DI)(!'~ Nor Diminisb Ih~ Uniwd Slates' Tnr.~1 R~:''PQII.\'[b[JilJ' 

ne Ullited Stmes' tru:;! responsibility is not diminished In nny way in Ihe cnntext of~clfgovernil"C!; 

Nntlling in this $nlx:lla!lter shall be c:on51ruC([ to diminish the Federal trusl 

responsibilily to lndi'ln tril>c~, individunl Tnd;~ntl, or lurJiaos with Iru.~1 nllotments. 

25 U.S.C. § 45Sf1{!1)1 To the contrary. thc tru5L respnnsil1ilily is <;:~fTied 0\11 in p;irt by 

supporting ond pmmoting trilm! $~If-governanc~. The Sccretary encourages Iribul self· 

govemal\ce by entering into funding agreernents with trib~5 "'consistcnt wilh Ihe Pcdeml 

Government's lllws nnd tmsl relationship to IUlrJ responsibility for [he Indinn people." 25 U.S.C. 

§ 45Scc. As Cohen's ~landbook explains: 

... the low reaffirms Congress's "COmmilment to the mointcnnncc orthc Pedel'lll 

gOVl:mment'~ unique ,md continuing rclatiol1~hip wilh, and respol15ibility 1(1 

indivlduallndian tribes :md to the Indinn people as Il whole." This commitment is 

, 25 U.S.C. 45~~""-14Ib)[N01~jng in ~li~ subc~.~ptcr sh~ll be conSlru"" 10 din,inl,h In nn}' way Iho lru<l 

responslbilil}' crlh. Uniled SImes 10 Indinn uib.., "nd indi,'id"lltn~ian.' Ihol ",""Is ..,Jcc ("",lics, b".u~\ c ort/= or ctlK:r In\\:. nod court dool,toll<.i 
117


517e5.eps

cxpres~~d 1,y $\'l'plJrl 1m Imlhm ·'plm!1lill.ll. c()1Il1m;l. mnl ad11lilliSir,llilJl1" n!, 

"qll~H1y progr1lm~" for ImJiulls. 

Cohcn'snt!J'17. 

Specifics flbfll/llfl!' Hoopa I'{I(!~'Y TrIbe fl'(lgrwtls (md R"I/oji/II n/Se/fOcm'rnrlllr:t! 

Sclf.:Gt1VCfnnnCC has allowed our Tribe tile flexibility to dcsl~n Itnd mmmgc IHIT own 

progmuls. Cm'n.:n(ly, we llH\l\llge nlOrC Ihnll 50 progm!lls which <:oW!r the <!nHr:: SIlt:Ctrtllll or 

iSSlWo'i. ElIrly Ofl, we compacwu fOI'llSlry In!l1111gl."1lIl:n! lind blv:l he~'fI Httlllngiug ollr fol'CSl ]lI1l(l~ 

imJcpendcnlly ueder II rom;l munagcmcut piau :Jill! lO.'IccJ;ds cnvironmelltal SWndilrds rcqurret! by 

flxIeml Inw ami incorf,oEalCS our values and priorities. Ollr Forestry ~parlmcnt 1135 retc[vcd 

cxcmpll'lty trust cvnluntiol1s rrom tlte BiNs Pncilic Regionnl OJTIcc (l'RO). We also own oml 

opcmle our (llvn logging COlllIl.lltly IlUt! nurSL:r~, nnd. liS n purl of Ollr forestry management, we 

created OUf own Wildlnnd Fire l'rotcctklll l'ro~l'illll through whieh we nsslJme.;1 the r~deml 

g(lvcrnmcn!'s wi1dl~ud lin.: runc(iol1~ nut! !iI..'TVi~(,:S. 0111" tribal Iirofighlcrs meet the ~!Ime 

quallfiCfltlon fCqulrements of the Uniled SIllies Fores! Service, Additionally, whon v..'C assumed 

rorestry management, w"'lliso took over the BIt.. roads dCpIlrtll1<!1lt, n $uccessrul progmnl through 

whil.:h we lmve vt'Ci.\ uble to !cvqa~ monic:;. (rom our umber &111.:$. aggrc~llIc Il!;ml and olher 

5Ource.~wlllt our federal fimillllglo jXly for roed mainlcmmoo ami upsrndlng. 

we: hnvc our own Plshcrics DCpiUl11!Cnt HInt i1lfl!liton; il1-S\rCflfl1 hahllm nod SIIimO!l. 

populations ill the Tril1ity Ril'~r ba.~in. Thi~ is 1\ wl.lll-respccl~-d progflllll lliut cOlltrncls with the 

Bureau ofRcdnmation aud tho Fish mit! Wildlife Service to Cilrry 0111 fiver n:510l<llion functiuns. 

We arc !lIsa pro~d of the fact that Hoopa W:15 the first 10 compact hoallh cwo willi tho indian 

HeaUh S~rvlcc (!I'IS) in California, lind IlOW has fl IlllSpilat, II denial clinic, :tIld Ih~ only 

ambulance ~'CrI'icc !llId cmergClIC)' room within about &0 miles ortlll:: ReservaUon and Che nc.~t 

ilcnrcsl hospiwl. Funhcr, we have a Pulice Ocpmtlllcnt which erncred imo an hL~lnrie emS!idcputiwtion l1greemmlt with !-lumbuhit Coml!y 10 provide oompn;hc.lsivc police prolectio:m <tnd 

Jaw cnfom:ment on our R~scrv"lioo, WlIHe additLollrrl fuJlding is nlXded, WIJ tlfe Ctlrrying Olll 

Jaw enfi':ro:!menl service!:. 

Wc also compacted Jl:?Jty from the BIA re~iorml alice. Further. we cll:aled n Public 

UtilIties DcpunmlJlllthat Ims worked (In a Reservation-wide water systi:...'ll !md continues 10 work 

on Rcscrvl1lir)ll,widc irrigation and ~owor syslems which me needed te serve our community. We 

Illsu huvc our own Tribltl Envirnnmcl1\lI! Protcclirm Agcllcy, TEPA, which ensures that our 

resollreo managrJncn! programs [lurfonn in compliancc with Fcd~l'al BPA regulations. TEPA 

monitors and tIlrorcllS llir :md water quality ~!lIlIdnrds sel by the Trib~1 Council and is also 

responSible rnr enroreing tho Trihe's solid waste ordinance. We also hav!;! n housing authority. a 

human services Ifepal1m;:nlllnd nn cducutlQ.n department tIm! cover;; pNScilOOllo ajunior college 

branch cmuJlus. 

TItrouglo SeJr-a"""n;nnetl: W<> provlde fl I'm'S" of "ervi~(::l to \lllr people, hnve ~pllrred 

<.:conomic development on our RCs\"'fVlltiorl. lind ensuI"C qllality IlHlIl!lgcmeilt of (lur trust 

fCSDlll'CCS. Wc II~YC beon able to suro::ssfully administer our mllllY pmgmms by cSlllblishing R 

solid governmental mtd administmtil'c slntcllm:. We are II govemment of laws, ordimlnccs ~nd 
118


517e6.eps

proce,,'urcs. WlliJe we bcliC-\lc tjli~ is csscmial for relf·gov~01nllCe und ;<lutcc$.lhl progrnm 

lldmini$lmtiotJ, it mils! be n:cognized 11m! Ihe ISDEAA inclrn1cs opPOr(l1Uilies ror all Iribes 10 

plnn progrll1ns or portions th~rcof. With lhis, a lrilllllhot docs Hot want to assume carryIng out 

the progrMI ilsctrcnn nel'Cl1hclc~~ pllrlicipnl!;: in t~e plnnning nnd de~ign nrthll progrnm sn lhnl 

ils values Mil Ilrinrilics me incorpomlcd into the pNgnun. 

Belrcfits (lIltt GOI'el'IIIIICIJf-fr/·GIlI'I.!rnIlNIII RI!!II(fQllSllip 

rkm::nL~ orfi,:Ir-!1lvCIlmno.;\l flow HO\ Oldy 10 tdhcs :and (l)Uk lliCmh .. 'TS.. hut In 11", UnilcU 

Smtes 1,1;; well. Tn1lc$ arc l\U~rb p;!fll!CfS ror the Griiled SUItes. A benefh of major importr;/]cU 

in Sell:Qovcrunnec :,lIl! gc\.S lillIe ntlC!ltioll is how ill'-l!s lwlpcd 10 g1,.11crate udditinnil! Ilmding 

for G.1r;ying (l(ll uJld~rfll11ticd rcdm~l progr:uns. The chroniCIIUy {mdcr.tim:j(:d Indian programs 

wilhin tile J)IA nnd I!-IS budgclS have be~!l wcll-documcnled over the past seveml decades. 

Many trihc~ itcsilnto;: 10 n~sumc f<:dc1';li pmgmms ulII:ler Sdf·Govcnmnce llccnu$c thl!Y undcrlitMd 

there is nol ad(;~untu mnney 10 support the Iribo in carrying aut 1l1l~ funcllans oftlte programs Illal 

the trlh"'~ IIInnl 10 ndminlstcr. However, whlle Se!f·Governalice is au authorizing law - not an 

"pprorrintiol1$ law - it gill,,! lribt:.~ th<: uhility til s.l!"~'nlle ~igo1ilicnn( n<lditionnl d"Uurs to help 

olTset thc cost of c:my.ng Oll! trust ucliviti<:s. At Hoopa, VIC cun show that thll Tribe matches 

$3.00 fr(lJll otller $Ol!ree.~ toc e.1eh Sl.OG oompnctcll from lhe Blil. tlml is used fer trllst 

mmmgcmcn! !1r('Jgmms. This is a slgnHiennl ll~!\cfit !)ol only r(lr the pmgramg and tribal. 

mumb<:!'lf Ul::y WfYC, but rllr the Unikd Stales 100 whh:b CUrrfu~;\;1 ollinm!:: t<:Sponsibi!ity of 

providing !br and protecting the Tribe. In the ccnlext cf Self~govcmnn:::e, a part oelhe United 

Sillies' rcsp(\O~il:i!ity is to facililnle CMljl.1cting wlUlllieTrlOc Ilnd support tribal pragrmns. Thi~ 

rcS\ll!s in !lIOf'.' rob!~ .mll tailoreu pmgmms lliJn what Ihe Unitlld Slnh:lS cO(IId design or 

administer on il5 nWII. 

Wa clupl1<l~izll, however, thai the United Stales 51H! has n re:;pon~ibi1iIY to casm'C 

ndequille fimditl! for progronL~ !hilt s~l*\'e tribes amJ Indian poople. Most of these programs. ir 

nol aU, arc wocfhHy lIJ!dcrfumk:d. Agllin, Sc!f.(}()I'llflllmcc oo~s !llll djrni:!i~h the fClk:raltrtlst 

responsibility ifl noy way. V/ilillhis. S::lf-GllVcm,'U1cc amI ils nbilily to facilitate lcvemging of 

fillllls dCC5 nllt relieve the United SIlUCS fmm oohering 10 ils tm,! responsibility 10 provide 

~11meitn! fU!1dirlg lC\>cJs ror pwgmms, Wllell developing its normal h,jdg(!\.~ the fcd~m! 

gov~m!l\(lf\E m\lst cn~~lrI; 1n;11 thc f\lo(ling ncudg nf Sdf-goWm.1nc~ lribe~ <Ire met ami tlmt ~s 

n~cd5 in"rea;c, such as for infr.tstruc!Ure development n~~essary to Cilrry out progrnms, Ihal 

funding [evels incrcosc <IS wcl!. 

Anotiler bl,..1\cfit of Self-govcmancc is lhe nbilily 10 redefine tho working rclntionships 

h~twt!1!n lrlbo!s and the federal go\'crnmenl. The Hoopa Tribc !In.~ enjoyed a 50Jid working 

rel~ljo1l5hip with the BfA PRO for !l10re tllM II dce'lde. 111 1997. J{oOpil /lnd 5i).: other California 

tribes cslabli5hd the Cullfomi<1 Tr",sl Reform CImSllrlium. It was ~nmRd to work with the PRO 

to mldress the tl1151 resOl!fCC !ll.1!;ag.::menl issue:;- t;xm w!licil OltlliY of tIle dnims made in the 

CobL1/1iligaiioll IVt'!:re basctl. b 1998, !lIe O:l!l$ocimn multhc P~O 41tered into Ill! ngr<..'elll-::ni 

Ihal oslablislwd!lll' terms, I.'nndilioosarni Q}l=lingpro~cllun:s farlile C'-'nscrtiun]. Tf>.c ability l'\l 

t!evc!<:p 11 new working ro!lntionshil' lviLh the PRO WilS mad!;: -possiDle by the Ile;>l.ibl!i!y cm.led 

by Self-Ooverrumce. The Elgn::cment defines tIle manngement roles and responsibilitIes of the 

PRO mill the trihe.s ,l!\d illdudcs pwvisiolls fol' n funding PfO"",.;s through Ille PRO; a join! 
119


517e7.eps

();,crsiWll p<lmJrY eouncil; n pmc~s$ for d~vdupi!lf.; "1lI~'I~<llrllhh: nod qumnillntlle trusl 

maangcmcllt slul1daros:" methods lor rCllolving disugrccmcrlls amI displllo.:s; nod Iimlliy. 11 

participatory process ror mmualln~~t c\lllluulion.~ '111is uniquc working rolatiollship has worked 

well ror )'curn. 

When the Department of Interior launched its trust reform lniliuliV\l~ [n the curly 1(100s, 

we look jlclion on Ihe fQundntkm tilat \\'h~l was warking in Imlinn COllntry rogllfdillg tru!l 

r~'Soun.'I: Hlilnngcmenl ~hould 110! be chilngcd. it sh\Juld be prc~crvcd, We creal.!:d the Scclion 

[39 Trust Rcfurm Dcmenstratioll I'ro.lCt.i wUb Ihe COHsorlium, tl;c Salt Rivcf¥Pi:.nll Mar'.copa 

Indian Cumnwnily. lhe Cunfrucr<1lcd Salish and Kcol<!Jlai Tribes Imll the ChlppeW!l Cree Tob<: "r 

the Rocky Boy's Rescrva,lcn. Tile lkmorlStro!ion Project oo!horizaJ the tribes' suc~ssf!l! lru:ot 

[ISS::! management SO/SIems tn {lpOOllc $Cpmllte lIlie <lJIIlri from lnterim's lruSI rclbnn 

rcorg:miliJlmn, and prevented Interior rrom imposing ils !nl~l mnnagcrm:n! infrnslruclilru UPOIl or 

llitcrilig the tribll:i' cl(isting 11'l1;;! feSllIlrcC manilscmcllt5ystem~, 'I11C Irtb~; h~d te ~'Irry OIl! thcir 

respclnsibllhics une!er the SIlllle liduclary s[nm1.1rds as IlloS\! [0 whkh Ille Interior Sccrctllry wus 

held mld hnd III dr-momlmte Ie the S~erclary'~ sati~fhcliou tlmlthey hml the cupilbHity te do so. 

We, ulong wilh the other Scction 139 lrib.:s. urrdCIW"..nlllu C'flllualion by the Office of 

Special Tnn;lC\: IlI"ld rec~ivell n dc;crminlliinn th,l! we hall the eap~bili!y 10 perti'mn coillpaclcd 

trust runclio..1~ tinder the WIlC fiduciary slmJd~rds 10 which the Sccret<lry is hefd, We wen; cYell 

ciled as '''all exCflJJ~1 eJ(lllIl(Jle of Irttsl mlminismltio:l, in furtherance of triba! selfdelemlinalion," Section 139 c[lldirrneillhllt IOMl Irjill!! !lccisiOlI.muldng ami Cfmperali[1ll from 

Ihe federa! govenunenl can result in significant Irust management imr.rovemcnts <lnd thai (ribes 

CIllI properJ)' implement lrust mnnngem¢t1t even though they mil)' usc dIfferent Jlmcli~es nml 

melhods tilpn lnl~rior. 

PI~crving what is workillg in Indi!ln Country is Iha roundatklll fur our flIrward.look!ng 

llppro:'lch \0 todllY's lopie, Fulfilling the Tmst RCS(Jnnsihility: Th~ Foundntion of the 

Government-!o·Government Rcm!iommI', 

Nmt Stein; fur Fulfilting tlw Trust RI1S{l(lIIRibi!i!y 

The United SlaWs s!wultlllcbcwlcdge 111.11 tribal governments 1m:: grca! ?urln~n; lind 111/11 

Sc!f-GOY!:jllilllce has provi!bl rnyriad hcncfil5 to trihc~, trihul mcmllcrs aud the United Slnles, 

i\S1::1f. It should f~st on the facllhat its 1ruS\ respoosibililY is not diminished hy Self·Governance 

nnd, io fnct, ills corricd out in pllI1 by supporting Iribes' abilities and endeavors 10 exercise .selfgov(:mnne<: for the bCllclit orthcir mcmhcrs, 

Tri/m/ Partir!ipa/i(J1I ill the NUlirl/wl COlJllllfssiulJ ml/mMlI! Trll!il 

!f Ifllst rernml is In b~ sm:cc.~~rlll, Irihc:!l Inust be eOl1sid .. :n.:d illdisp!:f'..snh!e (Jartics.. For 

this maWr!, tribes mllsl b:: (Ill inll'.gml Pllrl or the Nalioncl Comlll~sion on lmlilm Trust's 

di5C!1Ssion and work. A Cor;lcrSlon~ of the Commission's droll work p!lll! is IQ r=11ll'1lend 

options to the Secretary "to irnpmVl! the DOl manllg<lmtmt lmd adminlstration of the trust 

adminislrfdmfl ~y51ems," nnd to "il)ch:d(: wh~lhcr any legislatlye or regulatory ehlmgcs arc 

nccr::')snl)' \0 p~nnUl!cntly implement such improvemcms." TIll: Commi,siun is working 10 
120


517e8.eps

define CfP;!ucliue the tlllS\ r::!~l;(lnship, ami hus 3 uni'lllC opportunity 10 help forge ro~ Ihe Uniled 

Slal~~ a. mure h(ll1(lr~hle rci;lliore.1Iip with {lidian Cnulllry. Tribes nw~1 he involved in flle 

Commjssjnll'~ eITorl, and locnl tlooisloll-making must be key In lhe Commission's 

rccommc:m.lallons. We strcs.~ Ihm lite C(Jlltmi<!sioll should he ensllr~d the: rcsourc'-'S and limc it 

needs 10 deyelop, ill clmjun~lion wilh trib~s, ct;m~idcrcd, wlnisl nnd progrc"ive 

reoommctll.J~tion~ to the Sccl'\'!tary. 

Nml-BfA M,mda/mJ' Progrmu., 

t\110!h~rlIW,j Of)l!fJor itll::~!;( Ibrour Tribe il; colJ\prn::ling rwn-Bl!\ progrnms. TilifJ IV of 

tho !SDEAA (the Trih.1! Scll~GoVt!!1l11IlCC Act, 25 U.s.C. §4SS:m. ct seq.) should cllSUre tint non· 

Bl,\ p;nynl% nro llul1ldnloTY for '!vmpm:ting. The tTll~t r.t!Sponsibility is un ohligl!tion or lbe 

United Slates not jtlslthc J3lA. All rcdernl agencies thut pcrfuml functions th~t impnet twSI 

resources Of triblll rights have 0 lrosl obJigotioll to prolcct those rc.~1lurtcs and rights. Self· 

Oovclllancc nffords Irlh[!l! the nhility 10 I.:Mtm: tnJSl resources lind tdlml rights nrc llmtc~lctl 

through ~(]mpileting. We strongly feci thaI Ihis ability should be extended tu olllcr ft!dcl1ll 

ngcncics nn II mnndntclI)' bnsis will!nutthe dl~crclion crlhll SCcrCl!lt)'_ 

'111e Trib~! Sdf-Oovcm!tncc A~t proviucs for compacting non-BfA funclil:ms in 

§ 4G3(hJ(2) Ilnd (c} of Pub.. L 93-638. Mr.m!1!to..ry compnclillg is rcqtliroc only liS to wrvkc.~ 

"Clhct"Wisc llvnilnblc In indl!h"l tribes 01" lndlnns," whlle discrctlmmry cOlllpRctIng ClUentls also to 

progmms cfspc::iul ge"gr~pbi~ili. his!()riCllI, ore!!ltt1r.ll ~i!!-tlmeance 10 the lrib!!.. 'nli:rour'-~ have 

limited mandatory eomp~ctins to programs ~pcciJienlly tmglltcd 10 Indians. Thus, procrnms 

dircclctl to improving tnlst rcsourc~s, Sllth as fish Imrvcs1S, hCC81.lSC thc)' lmve collalcral ~nents 

to non-Indinn lisiling interests, fall outside of '63& compacts unlt$~ th,; uotl-illA agency. in its 

discretion. chn~c~ 10 il1nlude thcll1. 

/\ prlntmy c)(~lllJlle of the prohlem concerns our fedcmlly.rc..~erved fishing rights in tIro 

Trinity River whiclt fiuws lmoll.gll the Honp:l Rescrvntiml. The Bure:iu ofRcl:llnmnlinn o]lcmtcs 

Ihe Trinity RiVCf Dh'ision of lite Centro! Valley Proj~!, TIle Trinity Dum, c{)n:pll.'Ieci in 19M, 

WilS the primary rca~n for 8!l'J.1. >jCl:!ine.~ in tlw Trinity Rh·'Cr ilsIicry l'.!Wurcc:;.llnd hIlS b~cn (lie 

subjCt..'l \If l1umcrt.lIlS congrc.'isiormllind coml fictions assm:illtoo "With vlolmiollS of the United 

SIl!lClj' mIst ob!i!:<ltioo~ !o Inc Tribe. To t.:O!Tcd the declines ill fishery r'-'SOl!I"CCS, C'.ongre5s 

passed v.uious redcrall~ws tl1~t mamiJted restoration orthc Trinity Rlv~r fishery rcSOOfCC5 ~s 

p~rl ofthc Federal trust obligatious 10 the Tribe. 

'nl\) prohlem is tbot runding !llld U1l1fl~gCl!lelit for Trinity Riwl' Iwbit~t testornlion may 

j~OPl1l"db.:c a tru~t Te.roU(CC and threaten ollr fedcrally-ruservcd fishing rinht8, Th~ Hoopa Tribe is 

rccogl!17..cd hy in\\' as n co-marmg.::r Or!ile Trinity River Fishery. We have worked tirelessly ror 

yeafS to obl!iin C(lllgre..'!Siom!luctilln In mldrcss illfl(/cql~1!C fllr.o.Jing 1~~cJs Jor !tre Trinily Ril'Ct 

Restoration ?rogrnm, We bo\'e alw scugln to ~'tlrry 0\11 mum fimcticn~ related Itf river 

restomtior" Rccl:lnlol{on, hoWCWCf, dctcmlined thai the programs 11m!. atC mandated by CO!!s= 

10 fulfill 1I1C U"IlSt ohllgmi<ln3 oflhc United Stntcs 10 oor Tribe me not "Indian Pmgrnms" linGer 

the Sclf--OovemrlJlc!l ACI. ReduImdon dnes not pcrc!ljvc ;he trust r!lsponsibillly n.~ all obligation 

that gives tribal water and rlShing rights nny priority. Absent nn ~~k.n(lwktJgcmcllt thaI il lnlS! 
121


517e9.eps

-\lHty is owed, rnJ!c~tilln G;' mil" rlghL~ WEt'S <l 00ck tc<!! 10 o!hcr prvjlX:!.~, l~cn m:w or nl:w!)I 

fITOf!Oscd pro;lOClS. 

Th(; Til!>: IV r~gisrlltinn, now JUt 24~4, lit one (ime in~!lld(l(! 6pccilic ranguagc that 

woult! cllllble tribes to rompncllo pcr(bnn pmgr~ms, or portions tl1er~ot: 111111 "r~slorc, maintain 

:lr prcsi!lV!l n fcsourC!! [lor I!.~al!lplc, fi~h~rles, wildlile:, waler or mincrnls) In which nn Indinn 

Iribe h~, n r~JemHy re.'l1'IVell rig!lt. :IS '1wlIliJie<1 by II fblcml tourl." rroltm~(I!i 405(b)(2) of 

n.R. 3994, II0th COIlg. I~! Sess, Suth \:itlgllll.gt:" is \mporumt to Ollr nrl.1e:: il w(luld rowlvc 

pmblelus we f:!~c with Redlmmlion over Ill.:!- n!.1tmgeme!l1 or ninity River progrums. Th.,;S(e 

prohk,'ffiS fud.lldctlci!lY5 tn el-:c(.lIli'flg C()lltr,~e!s w!!kh re.o;tl~ if! i1 liigoifiCilI1! r:'11~l\Ciill nlll(lca for 

1111: Tribe Imd .wmmislrnli"vc, pmgrnrnmatro. :lOd .s1~ffmg nightmnres 10: o(lr pros~m5_ 

Auolh{)r c~mllplc involves realty. As previously llwnliollcd, W+.~ r:(Inlpllc( realty and, tillS 

gives ri5C to alloUler c"rnnplc of the neetl for ~olnr~cting on n flllll111ftl!11)' btlSis with agencies 

outside tho BlA. We mruggle with (he undcfllmdillg oflho really pnJgrnm in general lIS well as 

with lhe (hlllllml $1rvll)'s HIl: dllnc lhrQu£h Ille [lurcau orLnnd Manog(:IIJUlll with fL'tlernl monie.<! 

tmnsfcm:d lrom thc Oureml nflndinn Affnir~ 10 tho DLM. Wh~n we first cump.\l:too wita DlA. 

Ih~ BlA Vffi.uld trnnsfcr monies ollocatc:l It., It fur surveys 10 the I:IL1>.t where BLM WQ\,1!d 

do:~ignalC :1 Bt.M <ruf\'c)'o~ fur 3!1n'C:ys IlCCili:d IlIl 11Ic RcscrY;l1ioll. BlA's posilion wm; lim!, 

tl;(:1mkmlly, It dit! 1l0l11<lVl.l fumitllJ; for :;tITYCycr~ sirn;c ~\lch m<JIl.ics wen! lmrjS!ermlw ELM, 

Now. tl)lm~ is 000 I3i.M preitlon, identified as ArncdCffil Indian S~ycr, in cadluf liN BlA 

Rcgi:m$, Will! lhi)l, fht:x IS-(lI1C Slich rn.~l!i:m ill .lle InA T'~cifu: R'..'gicl1!O serve! 15 trlbcs.. Not 

or.ly is Ibis !n"dequllie for the worklo11d. bill (hll position does nDl dQ nCl\\i!l snrV\..>yB, il rcvillws 

l.locnmlll11l!tiOIl 5ubmil1e!.l ill rcMion ttl IC!;!-tC)'U1l.Sl appliC!l\i<)ns. au!' rctllty fl.mctioll~ ar~ 

hinderetl due Ig the lack offunding for, ~nd inability 10 obtain, adeq\l;ltc allG limcl)! surveys. We 

helieve it would bollClplllllo comfl~el di~ctly with (he BLM for surv<,y activities, Addilicn~!1y. 

mOfll n.lI1din& is roqllircd for ~Llch fll11~tioM (t) till carried out eflbctively. 

;\SIIin, the Irn~ll1lsp:msib!lR)' i~ the tnlsl ro3ponsllillity onhe United Sf.,1ms-ilflU it is IlWcd 

\[1 lribes by all ji!&;aj agencies.. This !l)llSr be pill iJltfi pmclicc to' m'1$uro proper m:llIDgenvm{ of 

{r\!$\ NSOurces. Tribc$ sigr!;;tl tl"C<l!ies witl'llhe Il!ru,m! &O\'ermncrJ:; :lww rcll\tloa:~hip j~ with the 

United Slntos ovemll. Wt:. had -"" pArt creali»g. \he mroct\.ro mIlle fcrlc."l'Ii £,(lVet";llllCl)l which is 

-dividlll\ mID ,wernl ascilcles_ If.nn lIgency i~ parlof!he federal gavemmrmJ, ilsllClllM be held 10 

CIIrrying om tile tru~t responsibility. Th~re j~ 111'IlX!aSOIl for Il difTctelll ptlf!cy to exist witn rc~pcd 

to an ~8Il!lpY !h~1 carries out n t.-US! nl!l~lioH just because il clI:ists Dllt~ide of thc BlA. 

Significantly, rilr I3IA programs to d~vcl{lp law enforcement, for ~);nmp1c. thc presence of 

benofiL~ t(l non-trIbal members dOM nOI removo Ibe program from mandatory compac!!ng, 

Neither siumld pr.1!l1'l1ms directed W I'\lSWr;1liollll'nlllfUlectmn orlnlstl'<~~Our;:~s sucll as ImJian 

water righL~ or fish;}rtes resources be il1snialcd from mallli.1lory L'Ornpllclirtg. simply hCGa!1S~ th051l 

pfugmms .nre 1II1minir;tcred by nOli-filA agCflcii:.1ll1d lruiCHII:> ortllc Departtllcm of the !!!1erlor. 

We bdt.'VC" tfle time ffil~ ClJme for tnue:; 1(', l'};w::ise their sclr.govcrrtarn:e in elher mens 

mid ill a !"I"lrIro cxpanslvc wll.y. ' .... 111! tltis, -;;'1: esk me CilmmitlCC to focus 011 the ooll-BLA 

<.:omp;'l~til)g iSSlK!: flS SOllll !IS possible IlS (! means for fh" Unilcct SMes to fulllll its U1!Sl 

rospollslb!1lty, 
122


517e10.eps

We \\lSL) r,eqllcsllhallhl! Cc.mtnl!!~lll11l\'lJtll1~c T;\J~ III urthtl$,I<I:,I!), the Indinn Trusl 

IWlorm M( Q(?,005. Hunpli worked \"!~11 /II01'\:[lIl Irih~s in the Nllflhw,~~l ~nd the COlllmill~c 

S\:llToIl thr. d(l\'l!!lti!lIl1C11l or this ]JrOjXlSIlI. h WIl\JII! l\lrlher the rlllfillm~1I1 ul' Ih~ United Stale:;' 

Im,1 TIlgpp~$ibilllYOlld flu1ilcr Iltcillml..: lrit'l,11 ~~!f,go'lcmallcc. 

TIlfil 'Il! 1';f So. t4Jil,vmik' G-1JtIj1: 1i1'll l\llf.l!n Tru!>'t ,\5wl MWJll\<lm®.r lJtmm.~rrnlw 

FrB",,",. wnfuh would:tthw ~",,*~:m4 ,..~"tt-th6sWffl ~~ mm ~ 

w~irli!1S fm!! 1~,,\w..it~mt.,a.m--dJt.w.';1.11k.-.:'1\'~W;>.; 11)11 ~.y:m;~,,",,~!11:: 

.(~S ¢m \$ ..... l~l I'ft':! l!'>~ ;::wJ ~k:G:1 law ~'ie tl lfu: ir'Jilt ~, " ... r me =~Ml! of'\hc re:~"'s, lmd fu;: f.:d(l~il! 11m:! I'!"Sjl\l.!1sMiiy, ro-" S\'l!rsri!$ ttcfHljn !:lllil9lil'l's. We 

nrc already tlr::>!lI.Q Ihis with oor rarl!str)' ptt>8r~II1, which is .n;kJ!Owli,:lla~ 11~lir)ll~Hy llS n moeel 

pmgrmrt. I'mlh~'r, W~ were on~ orth~ S~tth)fl l:W (I 31) trHll.::i which w(1\II~ b« gmndf~th=d 

inlo lh~ Dell1M~1rnlipn Projc~t lIud.:!' Il1Ill~mw tlf'nllc II! ofS. 1439. Till,\ In cm:oumgcs loctll 

dccisiorHlJ.;tking. nml ~nopcr~lioo be(w~lltl (lib:\1 grnrernmcn1s and (111.1 VP!ICll. Sillies :lnd 

l'\I:~no"lI~I!I!.),II\l:.t\ the United SI~tC5' ruHiltfll~I\lllflh~' Inl!.1 rcslK'mlfu1l1l}" \IH':$ \101 fCfjllTI'\: COY" 

IlHby mm\l.\~<'.IIt. hilI f.1Cilimlto:1in litr!h\lmt\c~ ilftrlblll Sl:1?-glJ't~~n I!Nl SLlI::~lImch:m:)'. 

\ik. ;El}ih.<w. 'ri'k In "",,~.i ~Jltk, ~ ~1;I nmicl lilt trow m"'b5-=- ilS5(~ ~ 

uw.-~ S!:l!e ",*11 ~"\[l.1W t~ ~ l!.m'f;'~ m crwe.a.. ~l.~ c\'! lIRt Ur,W;1. 

~~?Wt ~r!I1)l .dl~= ~ !.';I.l!' WIiFl;(..1i'l'.tl ~t!'; <mf: ~l>1.t{>l1!l ",iWlt fllal;;g11l{!: 

Ifll.'a ~\M 'j<.!fjl;in our lrmal icrrilolics, VIr:. helieve tlr~t .!tl lrilml ffPW_'l.tljl)f;lUS, regnrdless ,§ 

WllClh[!l' tMy '$'il !)in:ct St:rVko or Sl:lr..a.)'Vitr\lnn~" should be a P;!r\ (}r!h~ managemenl Drlf1ls!. 

n:soure.s wilhln 111~ir jurisdictions. M!h"1 11~rtl~ipatlol1 by uihtll 41tlHrnmenls in the 

mana~~m~n.t (,t If~~1 f\li.\CIS crcnles good rIli!u!(~ ulld r"l!duccs clmncl!.!l OfI:Xl!lf1lct between tri~s 

nllr;l the Unl(\:;! SWcs. Ellllcting TiU~ III wl;jll)l! rlJijlIll in posilil'C- pr .. ~L~ll 01'1<\lrust IlHllltlgonlCllL 

impr<l"lGtmlfl_tij, ~W£ujlilllr! tllCccncr:pl \1~ra,!.lI1! afS.1439 mm "'{u!td !,,\)\I: l\lI"W~rd!nW£lrl:ill!t 

will; [!\C l'J::amni.!t.\"" jl) .. mile! sucl~!"! r.MY~km-

~·nwt~!_~~"'i:-~ 

7llt': Oif1t:(\-ofSpt'ci;;l T«lm~ twr")" ~;liSh(l(!by ili(lo lW411m.~t R.4srm,~ w~ 

1l~~'(!f rulenrt~ti III ~e.x<mc flcrmnlflilll. :113 \I,,.'3,C. §41l42(-c). Hmwv~r. O&'r has cstabllslre:l a 

pamll,..,' I~NMI1CI'llCy which dllplic!ll~~ admini~lr~lhc incfTiclcncits lO$!Ci1\\) tlr improving In1~1 

~crvicC.5. 111(1 I1n~$ hellVccll CST nm.t nIt. rc<:lK'nsibilitics nrc r;l1l$(! \mo],:::lIr. The ~umc 

opproprlati(lM~ WOll1c1 go rUr!her irOS1'l'Ie~, ("IJ~Qll1hllled with BiA. 

!mf'n11~' 1M ~w'IIjlg-lif Kwt Propc,"'ty n1t~J Ass~f,'I; 

11l11!Cl ~~;;f scilli.'lg, wor -w!t Th:rui:;, m)~ ~ Mmpr;:- y~ Jrlk or· 

-tiI:i-"Ui'-StIrt\"t ~ ufT.eJffru ~ No. %:4$.,. =.""..,;..,~ 1>1 ~ tt) ~t~-,",~w-...:o;;,-d" 

:!l. ~31. "Ull2,. $!Scmere ~f ~\1~ fur- W1'" triM ~ ~:-fr "Y,'Mk ~ "'~ 

lIY"..J) (0 tile t:rt$\ fmm b!lhlm.=, !!'!<:o S;n~r.'Illem (If R.-ililmmrn.ou Wi.J.S" ib~:ld'tQ \f1ele&!,~ t1f p~3 nt;l;!~ ~al JllOpcrly :tS-lI::lS. it::IPi"lJ11B 1\'J,'jets of trThn; lfmO<;,. l'.rW l\llllls lensed to !ri!:r.11 

mcmbt.'f'S Ow l'll.lnlQ site purposes, Tho Jb(i113 Qf real prDpcny :l,.cl!> !$ nl!! Qf mistakes ~nd 
123


517e11.eps

obviOllsl)'lms /lot been pmperly ujllbted. Till: prnee~s of [ll"~p"ring (md maintaining thos~ tmsl 

r~cord~ mllst be improved. 

ISSII<:' II Scc/"c/al'iuf Orr/a Barrinlf lJ(!/mrlmell/ Empfo)'l!l!s Ffmll Arl\'(ICU/{lIg R~(IIIc1iQl1s ill 

F~d~m11i'm'l Re.1l!WI.fibililie .• 

Then: ilr~ nmlly e~Hmplcs of frdcmI employccs negotiating III ffJ(luce Ihe scop<: of the 

Icdcml J;:ovcrnment'N trust rcsponsibil!ly 10 lndinn:;. FOf example, in 2010 the Dcp(lrtmenl ,1~ a 

"drofling service" tar COllgre.,smnn Mike Thomjlsoll, pl'\.lpo~cd Ihe rollowing bill Innguage 

"(Tlhe Uniled Stutes, ns tf\l~tcc 011 hdmlf uf the T'cderaI!Y-l'C\:ogni7.c(1 Iribes or the Klamath 

Bnsiu. ,. is aUlhorized to mnke the commiUllents provided in the Restoration AgrccmCllt, 

including the a~5Uf(lnec.~ in Section 15 or tlu: R!!Slorll.lion Agl'l:elIlC!lt." In th~ Restoration 

hgrccmllllt, Section 15, the D~!»Jrlment ~'fJ1plo)'ces cO!l1miUcd that the United Stal~ would 

pmvidc "A!!Sumnccs thai it will not m:sctt: (i) tribal waler or fishhlg rightlhoorics or tribal trust 

Ihcllries." that will intcrJ1:rc with the: dlvcrsioll •. , nf wllter (llr Ihe Klanwth Rcclnmiltian 

Project." Wh~n the DCpfirt!llL'l1t [lrll[111~cilth<lt bjJIl~l1gunge, it was well aWfire thot three of Ihe 

fcdemll), rccllgni~cd tribes of tho Klamllih RiVl)f Bosin opposed Scction 15 of the Rcstomtiull 

Agreement. Ncvo::rthdcss, the Depormumt, over tribal opposition, proccc<led to advocate 

reduction or its trus[respoJisibilitics. TIwt Icgislntioll was introduced ns [-I,R.3398 und is still 

pending. 

Severnl cnbrts 10 limi! trusl dmics umsc in cOlll1ectiOIl with tile trilxil trust lund 

seUlement negnliallons noted nr)[l~c. Por example. the tribes were nskcd to ngree Ihm the: 

Statements of Pelfonmlllce $.1tislicd die gu~mmcnt'5 obligations under tile Trust Reform Act. 

Similnrly, the Tre3~ury DcJXll1mcnt sought agreement !lUll: ils obligations were limited 10 thuse 

defined by 25 U.S.C. § 1(il:l(a). We recoglliz~ thutthe Department cannot prevent the Justice 

D!pnrtmcnt from taking ;u:!\'OCILCY po~ililJns ill litig'ltion. ~Iowever, a Se~r~tmio[ Order 

prohibiting DC[1ilrtnlCnt empluyees from nttell1pling 10 fl.'dtlCC the goyc/l1ll1cnt'~ trust ohligations 

1(1 Indi~n5 will help protceltrust dutic~. 

Tliu Deparlnl('II( Shr!llld V.Il! Irs Rule-Makfng IJW!iorily la Help Tribes Pml~r::1 Tnrs( I'r{!!!<!rly 

111e ludinn Trader StatUie illlISlmlCs areas where the Do.:p;Ir1ment has missed 

opportunities 10 help Iribes pmtect their n::wun;cs ami pmgrnms. 25 U.S.C. § 261 authorizes tbe 

Departmcntto appoinltmdcfll to Imlilln trihes nnd to adopt appropriate regulntions. This smlnte 

becamc an issue in tJ/kln~oll Trndi!!g Ca. v. Shirley. 532 U.S. 645, 656 (2001), where the NnV3jo 

Nation lind the Uniled Stmes argued !lint Atkinson was suhjectlo tribal ~ll(CtI by viTI lie of being 

'In Indian tmdcr, TIle SUIJrcme Court noted, howevcr, that "Although the regulations do nol 

'prccJooc' the Navajo Nation from impnsing upon 'Indian tmdcrs' such ·rec.~ or tax's it runy 

dccm ~ppropriatc: tile r..::gulalions do not ~umell1rtate or 1I11lhilrize the hute! occupancy Ia.~ nt 

issllc bere. 25 CFR §141.ll." Id.lltll.IO. BUlthe Dopartment, instead ortnking the 

oppurtunity 10 nmcilli the rcgulatiOIl to e.'~p=sly 1I1lthori;(Il sneb Ul)lCS, instcnd proposc~ to repeal 

the Indian Tr<ldcr SMute. Rlllemnking 10 support Iribal tn;-:cs to protect programs mnl property is 

IIce~ed, 
124


517e12.eps

Am{f!!.lSt.lcn,tt.al'im Orrkr NO, 3ZflS ()nn!: $, lfJ97) i!l1rJ R<'gl!im{{Jff.t With SfR1c{f,",~ Mem"",W<r 

Corm/hal/1m Rrq!lin'lIlI!IIIS Tlml HItW! lim Poro;<! ofl(lll' 

In SC~fr.!ariill Order No.32l16, tlw Secretary or the Im(lHuf ttttd the Sc<!/"clary of 

Commcroo, jlll)"5IW/lt 10 the Entlangercd S!1~r.ic~ Act oj' !1)73 ["ESA"), the rcderal-lribol trllst 

relationship, lind Olher rcdcm! l!IWS, ~Uclllpll.1d 10 clarify federal rCiiPilnsi~iIllic.~ wllert :lClictl.~ 

tilk'm IlntkJr Ihll ESA muy nfJtcl Indl~1l lands, Iribn! IflllIt fCSmtrce;<l, or tilt! cxwisc t,f AmcnC<ln 

lrnIlrlll (rilml rlgntll, Whi!t: th" Sc~rulrll'h\I OrIk::r ~"pIl(;llllS Wlod C\lIl~4:p!s, l! is- insuflkienl m 

~~h&it fi lc~iy t;llib=bl~ ol:>f~fun {a engage in memting!.llj gOl/C114"llcnt-in-g\Jv\lffIlw,.. JI 

l..'lllmllliltion with iral!.'S. f<;lf ~I; l~l (..'<u;iw fi" &MQgk{tll»lcr~'.'O, '!t 111. 1', smrzw, 

NtI_lfl_2i30 (p. Arr .. ~ Ne!'. :o,'O.:Uill), gmCn\Jlt =miood ilic ~Tial-oroer,n dctermme 

wb~lbm- lis IJbli~t,ions included ~mc, I11casumbl~ oonsi>lllllilm. rtijl.'iremen15 .hm ,mve: ihc 

foccl) orbw. The Coun CQIl~!\IIktllhflt prQwc\inns forSommm Dusort lmld l'ngles, which have 

greal va)l1~ II;! !rib<::;, "do 110t iI'ilp!!cmc: Ille redeml govcnlment'~ lidllolnry dilly over the 

I1wnngem~n\ or$p~~ific trcoty-pr01cctcd n::;otlrce~, .• nor docs [Fisll fltJ(1 Wildlirc Service] illlvc 

the Snll)(: 6(ntytory lind reguln1()ry oblil,:Ulhms In r.ouslIil wilh th~ lrib~s under the ESA that the 

B1A 110$ wh~u making: decisions dirC1ltly rclntod 10 the IIlmtagclllcn( of tribal services and 

cmpl~ni un tndhm rcscrvuthms." Jd. Ord~~a\ 1'.1. Too emllt i:f),~ehilled Iho{ ~C{lngrc:o:; anti 

1111-1:ri(lt 11<1\~ no! impo~cd !.'!n.il c'lIlsali>'!)i(ln clllig.1tiure; in the ESA cu:!lil;{t. mid II ffi 00'. t:l~ 

prop!l1' role of the Court I-Il impose su~h ,obr~tiM'l fill its ~ll'," Jd, 'lois defuct if! Sm:!-<l!ilria! 

~ No. 31m: ~hl h>.: !!!TIll:ckW. mid n4~ -.>$' r;m!!(ll :egl!!iltit!rtll to- l'llllkc coowlt:!iXm 

mWllmgfhl. 

Cr,/1ie.r il/ RiJr:rmly Sbmdrl Vi' J'n;n+llkd M 'f'rlbr.1I (lli Pari of rh~ Grrwl/'lllllalll-To-Gowrnmi!llt 

PI'OCCSY, In:;/(,lfd of Rc/cgatil1g Trihv.~ IP I"~ BUI'(WIlCl'lI/ic {]{fIr.II liole of (lia Fr~(!d(!m 0/ 

"ifom!(1ilonA{!/ 

111~ D~p[tr!l1'mnt'S adminiSlralicn llrthe Frecdnm of Infarm:!I!!1ll Act ("F01A") [caves 

much 10 be desired. FOL\ i~ nppJiw gtUdgh\S.ly amt rcslnm= m'U hlllg. j~~lY(!!t. Hvwc.vet, 

lh&c 15 00 r~ill\. f."1f insistiag \lpon the rbnncl FOlA pifOC~~ wnen I¢;fI!lEdin.g io a re«!IJj3 

reqUC!it from an IIrtlf!m trib>!. Joo os ~ernJ a,,"ef1lilcs do rot cmpfo,i' rotA lllltdllSl: taro r.i:lwn;T 

C"rn:1m:l:l<t nlqu~, W ill:> -;!n;: DCpIlt1rnen! ~(!nt.£ o:..~ly proyi:k: fur ,be JllVnlP' 

lI'!'l!llsb!lJty uf fl.'.lielw ~ '.lpoll Ill\) r<lqu'OSt uf II Iribl: :as 11 mettet of g{lvemment-to· 

g~ycmmcn! OO),ISllhation. 

Conclusion 

We !\Ilprecl~(e tho uppOI'Iunit)' (0 submit Qurvicws for the rctdrn ullllll~ imJlOrlant iopir::. 

'!1lilllk yoo for ymlr<:onsidcrntion, ood p!(l\lSC: tlo nnt hcsimlc to cnn!<l;,';\ us Wyou !inv.: qUL'l!!ions 

0\" need ootlHio('ml InfunnMiCl\. 
125

PREPARED STATEMENT OF HON. EDWARD K. THOMAS, PRESIDENT, TLINGIT AND HAIDA

INDIAN TRIBES OF ALASKA


517f1.eps
126


517f2.eps

President BlIflI¢k H. Oba.-na 

The White Hoose 

1600 Pennsylvania A~ue, NW 

Washingt=. DC 20500 

May 17, 2012 

RE~ Call furTtibal Consultation on Indian Reservation Roads Program Issues 

Dear Presidrnt Obamll~ 

As President of the Central Council ofTlinSitlll1d Raida Indian Tribes ofAla:iika (CeatraL 

Council). It tribal g<lyemll',ent rt:preseuting uver28,OOO Tlingit!llld Haidn Indians worldwide, I 

am writing you on a moo urgent m,tter rllgMiing cur Government to Qoyemment ~latkln~b'p. 

The Departmellt of !he InterJo, (lIlteriw) is net properly mlliering to ils own Int.;rior Department 

p{lli<:y governing lrib21 COf'Jlu.\tIlOOn. As you lIOi! aware, departmental jroliclw W>Me laboriously 

de~"loped in =ponse to yGUf owa ExeculiveOrder 13115 te&WImt: t,~e need fur meaningful 

Tribal Ctlll:rul.tatiun. 

AFederal Register Noticedated May 7, 2012 antlOWlCOO that Inlerior intends to hold a 

tribal coru;ultation in Anchorage, Alaskaon Junes, 2012. However, the Interior IJllPprtmcnt 

Consultation policy prornis~ IhfIt Interior "wIll strive to el1sure that a notice is giwn at lcast 30 

dnys prior to scheduling a eonsultatiol!. If exception~! circumstances prevent notice within 30 

days of the consultatirm, an explanation for the abbreviated lIO!illClltioll will be prv .... !ded in the 

invitation kiter." We have rw:ived n~ither nlettet nornctiee of any "exceptionaL 

drC1..lmstan~es." 

We ask thut you insist tllal Intcriorndhcre to Ihe proce:;s outlined in its own policy. The 

Ilonsultatioru; during the week of lune Sill QCcur lIt.a time that hilS long been set aai(ie fOJ; 

"Celebmtion" which ill a bl-annual cultural festh1!l for the Tlingit, Haida, and TsimshiWl people. 

This eultural gathering is one cr the lurgeat in the Southeast Alaska Native oo!lln1.U!1ity and the 

second largest evcul3pOnsored hy AlaskaNalives in the State of Alnska. MilIIytribes ani! tribal 

members BIecOID.I.lJiUed to this event, makillg the CI:lllSulbtion dates UlUluilabll:! and the \1Utimcly 

notice llnworkable.. Interior's Tribal Consultatmn Folj(;y specifically slates ,hat it5 blll\2lUS 

should wcrk wllh tribes aM consider rolledules of lhe tribes ill setting consultation timeJIue:i. 

!"urdrer, tho fn1criorTn'bal Conscltation Policy spedfwnlty sI.aI:es that "iaJdoquate notice 

entaib providing ade..«eription of t1l.e :epics to be discussed, it timeliue oft,1.e pl"OOOS5, and 

possible outcome:!!, Notificotion of 11 consultation sb<ruld include sufficient detail of tho:,jopic to 

J:,., d~usscd to allow Tribal Je3ders an opportunity to fully engage in thecoru;u!lalion," 
127


517f3.eps

Interior's ol1li1nely notice provides us wiltt no "possible outcomes" other tha:u that 0. "joint 

BIA !IIld FHW A re¢l;I!!IJJ\endarion" fC!;a.rdillg pmpoaro mOOs and primary access is ~ing 

implemented. Last minulenoticeofimpll!fTlcnt<ltion is!;ot consultation. TI1\!cxil;ting rules and 

:egullllions an "pmposed roads" and "pri.'lIar}' access routes" wcrel!Ie subjectoh [Qffila! 

rukmakID.g under lhenegotiated ru!t$lnkir,.g procl:SS consistent with our-GOverrtm\lnIl<.l 

Gm-ernment relaticnsbip. Weww[d con!!ider it l! \'iol'iti(!UoffOOernl. law, ll!l well as ofour 

T rlbal Comllltiltion Policy, fur Interior iii im?Jement changes to the regulations lJmt were 

negotiated. Evenlll.Oro vox:uliaris lhetiming ofthill "C(l1)SIlltalion" on aehllDge - at thl'l very 

moment the Senitle and Hou:;e committees are in confe=edealing with ~ttanges to tho 

statutory framcwork. 

Curn.btmt with Ull[" (JQVQ!lUn~lIt to GOV~LlUl\mt rQ[atiQll.hip, we insi,! that "31gnifi~Mt" 

~h:<mges to the Indiall Reservation Program, incJudingch;mgestr.ll! IIlterthe funding formula, 

likewise beeonsiden:d only in theconlell.t ofguvo.'fllll\ellt to g.overnment Negotiated Rule 

Making. 

We see nothing in Interiors pmpGSed meeting3 thai will allow tnbc:; t(l.CI1gage in 

'mcaningiul' COI1liUltatiOOl, nor even [l.?ro::ess rorcollliiden.tiOIl offeedbacbm the lopi'Hlf 

consultation. Intenoq)(llicy requires th&t "(t]he notice3bould also giveTriballea<i()fll the 

oPportullity10 pnwido:: ie~-dback prior to the conmltalioll, including My req(l~t forl<:ehnical 

assistance or request fur clarifioation ofbow the consultation process conforms to this Policy." 

II appeaIli tJ\atttibes are being called last minute-to IrllveiloAnchon'lge to be told that 

federal officials have dccidOO 10 chungcue rules Ihataff~t fimdfng in asignificant way: Thi3 ill 

nO'! «InS'JU!lion, meaclngful or ot!u:rwise. 

For tlJ.csc iI!ld other- ~of.ations fmn the established :Jq1artrWJllt of Interior nnd Wfllte 

House polk.y, \W. ask thai you llirect Inwrior to honor '.hecoruultation po!W.y, 1i1ItI pHwide 

adequate norice and content 00 tImt tribe:; may be truly engaged in collSultatkm, If the f~ 

recOnunend3tions lin: "sib'l1ifieant", w<> Lhcn rcqu= fDm'lIl.l negoti:ltedl1.l1o m~ki.:1g pr<1~dUj''''' be 

followed. 
128

PREPARED STATEMENT OF HON. JOHN YELLOW BIRD STEELE, PRESIDENT, OGLALA

SIOUX TRIBE


517g1.eps
129


517g2.eps

In our treaties, WIl ceded 1l1illioilS of acres of land 10 Iho United SInl05 in c;.;:ehun!.lu for treaty 

promises, cducnli(ln, hcallh care, housing. amI C\:ol\omic d~clopment. Thcl basic pkdgo is 1b.1! 

the Uuiteu Slates wi!! heir 1I~ mn/..-e our perm~lY.lnt liame3 on th{! rcscn'lli{!lI~ 10 be livable 

hom:::;. Yel., tbose trotly promi!l(S b\,'c 1ml !:teen fulfilled. This is too rcallilC situl\tiOOIl!lllinst 

which the FCllcml Tru,. Rcsponslhi!ilYlmlst be m=n.:d. Th~ F~-&~l Tntl1 :s broJ..'% :'1m:! n:ust 

bcrqmircd. 

Tlt~ B!l~kGrr.1Ill1d orthc Fedulil Tnst Rt5J1ll11sibllity 

From the very beglnnlns of the Anlcriean Rcpuhlic, tho United St.'ltes rccognizcllindian tribes ~s 

N"tivc 1\':llion5, Cfltlo\ved willi sovereign .tutlll:llily 10 govum our people; our ten-IIOI)', nnd our 

nations. Tho 1'178 Tm,\,IY wilh 11m Delawarc NWion sots forth:\ military nlliullr;:(: intended to 

assisllhe United Stutes In mainlaining its illdcpcndclI'~. TIle. Dchlwllrc NntiQn1'rcoty is ruunded 

in ill!Cmllliolllli jQw.1 

h:. 1787, CongrCSll en~ctoo the Northwest On!ir.nncc, whi::h was imellded 10 I'~labli:;h iI 

frnmewvrk for Illlli<m afTail1lin Ollia, lmliuno, Ilnd Michigan: 

The utmost goo,l faith shall alwllYs be observed towmds the Indians, their lands 

and property Shill! never he 1<1].:1:1\ frum thel11 wiUloul their consent; nnd in Ih(lir 

property, rights lind libffiy, thc)' shallncvorbo invaded ordislurbcd, unlc~s inj1l.51 

and lawflll W:U"S" authorized by Congress; hut laws founded in justice and 

humnnity shall from time to lilllt.: 1m made, fOr prcventlng wrong:; be!ng dOllc (0 

them, ami for preserving pe:loe and fricllcl!>hip wilh dulm •••• 

Al thc sruna time, AlllCr:ea's rO!!!Klmg Falhers, WaSili.llgjOll, AILlms. Jcm:rson. franklin, ;md 

M;lI!iso!1 w::ra engaged at the Cons!it~tiona! COll"~mlion itl !he «wr,te over the SI1bs:ar,ce ::md 

form ofth~ ConstillHion. TilcCollslilUtiollaj CO!lvemlon JliId bem iniu;dly chiU"y..,j "'illl re'/ising 

thc original Arlicles of ConlCder~tion, ycl Ih,) Fram~!'S decided 10 writtl an entirely new 

Conslitutillfl 10 g<lv~m lhtl United States. 

Tht.: Constitution C:1.:plle!Uy strengthened f1cdernl authority over Indian Comrncrt:t}-Congress is 

vested will! plenary powcr to regulate cmnmeree with Ule Indian Iribes, The proper 

understanding is lh~t plonury pOIVO!'" ia '·plenary" or complete vis-ii-vis tho st:J!es, Not ~pkmary" 

vis-ii-vis tile Indian Iri1.l","~. nllt III substitute its judgmont for tribal sclr-govemmenl., Congress is 

VClilcd \\11h power to rCS\l!~c ::o!ltlllen:e "With Ill!) itldian tribes" in langeHg<l parailel 10 1he 

forcigrl.:omn1CfC(l c!ause, "willi fareigll nn[ilXL~." Put nnother way. lho Constitutlon csta.bliaileS (l 

bi-b:ernl relationship wilh Indian tribes. 

The bi-lateral, gavcmmenHo-govCfllment rt.:luliol1shlp Js roinforced by the Conslitulion's Treal)' 

unll Supremacy Clausc~, which recognizc Ih~t IreAties mado uuucr tho Articles (lfConf~dcm!ion 

l1'hc Unl~d St;1tes firndy ~1~lIlti tI\D IIlItlon, promal~d bylh~ Srillsh. Ih~t theAmeric.111 R~Pl11'Ucseughtto 

"extlrpate- tho DolaWl1rc and St~nl their Innds. 11le Ilnll:<.ld Smre.. fu!iy guarantees and prubl<'ll the Del;Lwarc N~ti""·s tl!lTltory, SCI Imlg as tbe ~I~war. held fast II) tile m,ln cffrl.nclship with the U'lit~d Slates. The 

Peinwa .. e Nztiell still hulds !1tj1 til the ch.w of rrjcnd~llip, but the United 5t:!!1!3 ),:m:ovctl thum ,rum tl:dr 

ruiglmI OOrrItnlY:m:i placed theln within Il!ethcrolrec N~!!OIl's remo.",,! t",r.tory. 
130


517g3.eps

~ pnrt or tIle "Supreme UI\Y er thtl 1...1m.l." As the Sl'preme Coo.rt cxplailltd ifl CilfJrmw/! 

Nfl-lirm 1'. G"orgia, JO U.S. 1 (lSJl), tho COlIsti!Ution implicitly rcCllglli2CS lmliuu trioos as 

sllvclCign~ e,lpa\>lll of tfcnty-nmking hy atlill11ing tlte rllier Indhm trcatiell made under thu 

Articles ofConfedcrntion. 

George Wa;;hin!llofl WIlS lhu President oftJt~ CumlilUlilJllll1 ClJllVClltioll, mId was. elected ~5 tile 

first Preshlunt nrlhe Uuited StaLes: illlmccr!ntcty aller tile ratification of the CO!lStitutioJl in 17E9. 

The next year, PresiLlcfl\ Washington i!tyitcd Ill<! Creek Nation 10 New Ytlrk (then too U.s. 

C"lpilo!) II]. rn:gotiU\c llie fln;llrualY willI an Indiun m:ion un:ler the COllstitutiO"ll. In the 1190 

Creek Notion Treaty, "lllllo United St~ w!cfn~ly g\lU<llllttd to lila Cret:k Nrnioo lilt their 

i~rn!5 within 1m: limits or IJ!l~ UniLed Stales .... " TIUlS. the Trllaty was a bi-lnteral treats, 

recognizing Creek Nalion territory nnd Creek N<,.Iicn statu:; ~s a self¥g()vcming nmion. BOIl! 

nations ~g1"OOd to "cnrry [orlh the foregoing !reaty into full <lXcctltion, with 011 good f3ith •• _." 

Presidenl Tltoma~ Jefferson rwo[;:nillr.oJ thut Tndian Iribe~ W~e governed by tribnl law and 

tradition, uncI that it would be wrong fur the Ullitcd States to extend its laws over Indian tribcs, 

whkh would bo alien and lInfamiliar and u vioi!)liQn of tribal righls 10 selfcgovemmcnt. Indo::,xI, 

ill Ihe Appoltionmenl Clause, the Cemtitlltion :=gn.izcs that individual Imlim15 nrc trioul 

cili7.~f1s, subject to lribal Hclf¥g<Jvcmm';:l11 nnd not subject to stote luw by excluding "blli;ills not 

ta:o;;ed" from lIppooionmcnt "fCongress and per Cl'llim !ax~lioo hy Ihe Slate:;. 

In the Ism Loulsi31l1l Purehasc Treaty, JoffO!"SPll acknowlcrlgcd tI)1;l he was b:.lying the right of 

\lre~mption hI \ltlrchas~ 1110 Indian lal1ds, and thllt Indian tribes rcl~in~d our "natoral rights" 10 thl: 

possessiru1 oflhesoil. Accordingly, the Louhriann Purchase Treaty pJ1)\I;r1cg: 

TIle lJnit~d Slates promi~~ to executo Such t~tics anoJ articles ~s may ha"c been 

agreed between Spain ~nd the trilJcs ;Jnt[ natiolls or Indians until by mutua1 

~Q1mQnt of th<> Ullit<>d Srot"" ~I>d Ill" snid IriOOs aT nali",,.., "thor sltltabk :u1idc. 

shall have b~en agreed Ilptl!l. 

LO'Jisiana I'urcllasu 1nmly, An. VI (13(3), In this f<IUI""J:!utiumJ! trellt)'. 11,(: Unital Stulespledgcd 

ro act on :he bosis of gD,'Ct"lln1Cl'lt-tll-goYCfTll,lCnl relations wilh lndj~n {ribes ar;d \0 fa"e 'lClio.'l 

cOllccnlirJJ.l Natiw: Na!ions bllSc(1 Hpon "mutunl aOMent." Accordingly, when Fedemi TcnitOTics 

were formed, Indian lands were exccp1crl from the Territorics' jl1riSdicli)}n unless the- Indinn 

(ribc..~ IwJ cc;m~()"nlcd to their iI101u5io]\ !llld mado Ihnl consent knOWll to th!! President. Sec 

Wyoming Territo!")'. 2:5 Ju!y l86S, c. 23:5, ,co. I, 15 Sial. 178 (IS6S). 

Convcrsely, whM the United Stotes sough! 10 esta~li5h a fort wilhin til(! Siollx Nlllion territory In 

Minncsotn, tbo Ameril;on fu,publi\;sooght Sion.-.: Notion rccog'lilion t\1llt the H:dcrol Government 

woulll pcssess sovereigl! uUlhority over the lands cOJUcd under the IRO.) Trcllly wilh the Sioilli 

N.1Iion; 

[T]he Siollx Nlllion grants umo the Uniled States for the [1urp= of Ihe 

establishment of military posts, !lin" 1Hi1~$ squun:: nl [he mOllth uf the river SL 

t:roix. nlso !Tom below the conf1ul.lll~c of the Mississippi ~nd St. PClel1l, np the 

Mi~si9~jppi.... That th" Sioux Nnt!on grants to Ihe United Slales, (he full 
131


517g4.eps

sDv~rcigmy nnd poWer over such districls rorever, without any let or hinLlral100 

whal5oevcr. 

At the conclusion of the War of 1812, till! British ~Dtlghllhe concession rrom the Uniled SI~I!l5 in 

the Treaty ofGhonl thut: 

America woule! "oml •.. hostilities wilh nlllhc Tribe3 or Nations nrlm!iulIS .•. und 

rorthwith to restore to sneh Trihcs or ~Iltions respectively ell the possessions, 

rights. and privileges which they may lmvu unj()yc:ti or hOCIl entitled 10 in [1811] 

prcviollS 1.0 sueh hOSliIilics." 

TIle United States CIllcred into 1815 treaties witl". numerous Indi~n tribes. Tho 1815 Tro;lty Wilh 

the Teton Simlx, for 1lX~mplc, plOvilles: 

Them slml1 be peliletu:II ponm~ lind friendship between all the citizens ef the 

United States of America and all the in(livitiuals composing the said tribe .•. WId 

all the friendly relations thul ~llist~d bCI,voon them before the wur, s1mll he, and 

the 5~me are hereby renewed. 

The undersigned ehief5 (lnd warriurs, br thllmHclvcs, ~nd their said tribe, do 

hereby acknowledge themselves nn(] ~Ieir aforcs~id tribe to be ullder tbe 

protc~lien of the UlJited Stntes, and of no other nntion, powcr, or sovereign, 

whatsoever. 

As the Supreme Court cxplnillcd in Cherokee NM/OII, protC(;tion implied thaI the Siou~ Natirm's 

interests would be promoted ~nd defended by the UnilCu Slates, no! destroyed or undermined. 

Tho Federal Trust Responsibility 10 ImJian tribes has its beginnings in the [787 Congr!l5sionn) 

pledges of America's "utmost good r."lith" tc·\Varus IndiwI tribes found in the Nonlll'icst 

OI"dillEllICa, in President Washington's pledges ~r prolection 10 the Creek Nmien in Ihe 1790 

Treuty with the Creek Natioll, and lclTerson's recognition cfthe naturnl rights of Indian Iribes to 

possess the snH and govem ourselvcs., reflected in tlte Loui~innn Purchnse Tre:uy. 

Genocidal Wurr:lru Agaill~t Judi~tl N:ltion5 

Despitcthc United Stntes pledges ofpmtectilll1, tbe Feucrnl Govcrnnumt embnrl.-.::d on 11 ~erillS of 

genocidal wars against the Sioux Nl!tion. In 1866. lhs United States called for a treaty meeling 

at Fon Laramie, Nebraska. Thc United Stntos treaty commission sought to negetinte a road 

through the Powder River Country in Wyoming, yet :IS Sieux: Iriballcildcl"l! met wilh the U.S. 

delcgation, nn Anny column mnved hound for Wyoming with pocks and equipment for building 

forts to guard the Powder Riverroad. This cnusal nutragc among the Siow.: tribnllcadcrs. Chief 

Red Cloud summed up the fecling. "The Great Father ~cnds us presents and wanls us 10 sell him 

Il,e rand, bot th", Whit'" Chi",r <>orne" with the "oldi .. ,"" to stc"l it before the lndian snys ye, or no. 

I will talk with you 110 more. I will go now and fight youl" 
132


517g5.eps

l~cd Cloud, Crru:y Horse and other triblll Jeadl!rS were delcmlincd 10 preserve lheir lasl 

untmrnmeled hunthl~ ground. Prom 1866 10 1862, Iho Red Clou!l [lIld the Sioux Nation fought 

Iho Powder Rivor War. There were several baulos, with. tho most notable vi~tory in the. 

Fa!tol1ll<1ll. fic:ht. Captain FcU~m"'n uml hi~ =mnml were wiped OU! a5 they sonwa 10 !riH 

Cruzy HOl"Sllllnl! U \cllm C11QueO)". 

DillillC: COllgrU$ion~l (kb:llcs, Q:mgrC!lsrnea llIIiLl U!ilt the L:r.kctu wer~!ile fillcs11igllt CU\'a1ry in 

lhe world and it took 10 U.s. soldier.; to pill down CDC i.llkola w~rrior. On the IICO!; oflhe Civil 

War, Red Cloud's W~r wos not cost effective rer tho Uniled SWIllS, which the US. Tl"\:;\\>~ry said 

gpent SI million to kill 11110 Lilkola warrior. Tho U,S, simply could 1I0t ~rford to fight us. And, 

moreOVl":r, they said it would bt!: 150 yonrs b,:,rorc while men would want to live OD the desert 

lnnd~ along Ihe weM hnnk of !lIe Missouri, ~o the Orcm Sioux Reservalion eIJul1l bo esloblished 

:IS 0 "pcrmanoot Ilonll~" for the S!nn Nalion. 

To \l!Id Red Clouu's Wa:, Prosidenllohn~on presented llit!: 1&6& Sioux mlian Treaty to the 

Sc:mtt!: and the S::or.nlo ratified tht!: tr.:mly i.l1. Fclmmry, 1869. The 1868 SiclUx Nation Tre:!ly, 

provld{!<; !h~1 "!1w Uulled Slates dOOres peace ao~ p!.4'llgCS its honor IlJ t.....,cp the pCl;lce." Th" 

Trealy S<lt aside aU ofwC5tern South Dakola from the low water mark on Iho ea'li bank of the 

Missouri to Iho 104'" M<lIidiqn ns a ',JcrmatlCllI home" tor the Lakotn. The 18(;8 !;lioux Notion 

Tr~ty recognized mOl)) tllon 4D million ncrcs in Ncb1'>19kn, Wyoming and MonUll1a ns un~eded 

Indian territnry nod preserves hunting lands in Nebmsb and Kansas. Article 2 sel~ forth Ihe 

boundnrics ofthe Great Sioux Reservation: 

TIle Unil!.::u Stales flJ:«lCS that Ihe following uistricl of eountry, t(! wit, vi1\: 

commencing on {lie C:l)st hank ofl1l0 MiS3¢Uri R[w'l" where tile forty-sixth pMtdlel 

ofllQrlh lmitudc crosse.; thesamelllUiCC along lhco low-wtwr marl-; dewn saW cllSt 

bank to !I. ]JOlllt OppC.sl'll where Iht!: northern line of the Shltt!: nf Ncbm:;l..""ll strikes 

the river, t~C<: WCI't ~croS5 $ald river, (fid along tlh~ northern line Orlil" S!j1.\C of 

Nclm!skll 10 the ope hundred and forth degree orlcngitudc: west from Greenwicli, 

lhenc~ nQrth on ~aid meridinn to n point where the forty-sixth pamllel of lIc.rth 

latitud~ interecpts (lie S.IUlC, thence due east .llong &lid pamllel to the pl~ec of 

beginning .,. is sol apnrt for tlie ilbsolute and llndi~turbeu l1se<! und occupation of 

Ih" Indians •.•. 

Article! 11 reserves the hunting hnds cfthll Sioux l'fution .llons; th!) Platte River ar.d. tile Smoky 

Hill River: 

[n tlOlIsldomrtioll crll,e 3uvlInlagcs MU hcoofitll CQIlfqrcd by t!1is !feat)', lind the 

ronny pledges of ftlondship hyllre United States, tlit!: !rib(!.~ who DJ"t!: pal1ies to this 

Dgret:mcmt hereby stipulate that they wlH relinq1lish ull right to OCOUP}' 

permanently the l<milory outside th~ir resorvation as heroin defined, but yet 

reservt!: the righL 10 hunt on ~ny laJ1ds n0l111 \If th~ North Plrrlle, al1d on the 

Republican Fork of the Smoky Hill RiVer, so long as the: buITalo ffi!ly rilnge 

Ihereon in such Ilumbers lIS to justify lhe ~hflsc.". 
133


517g6.eps

Article 16 rescn'cs Iho Powder River Country as follows: 

Tho Uniled St,1te~ J~\l:hy agl:(l~ and stiplllntcs thai thu collntry norlh of the North 

Plau" Riyer nlld Oilm oflhesllmll1its crtho Big Hcm Mountnins slml! 00 held mJd 

(lomillercd t(l bu uncedcd lrn1l:111 lemtory, nad a!s(I slipul;;te:; ;mu agr ... ~ that 00 

wiUlep"rSOI1 ()f"pel"liCl1~ shan bq,cnnnlcd \0 se!tle upon ar oecllpyanypor:lotl of 

theslIl1.lc •••• 

The Uniled Slates ngrecd \hnll1o 0110 would enter 0\' oross OVIl!' the rc;s~rvnti(ln, except agents, 

oFfioers or employ~cs of Ih(l government "nulhDrir.~d to enler upon Indinn ['(:serva\iom in 

diS<.:har~c of dillies Imje.incd by IlIw." 

III 1874, the AmIY'$ Cllllte:r expeditioli violaled IhOo trenty hy unnlllh(lril:cd tntry inlo the 

reservation, IiI":icCI'f!I'({d geld nnd OJSler gave t~ nC\'IS 10 the rcptlrturs bo had breughl along: to 

spl'Cl!(l his fhmr.: Gold "righl from Ille gmos roots," in lIis lI'orJ,~!(> Ihe N!:"" Yark TlUlCS, 

By 1875, Gcneralg Shennan lind Sh<;rid;m convinced Prcgjdcr.! Glllnt that it was no longer 

worthwhile [0 nafend tho rcsc.'VlIlion from while c!l~roachmcnl and Gr.mt ;lulhori"ed the 

viobtion o[lho 1868 lr(laty. The nCAt spring. President Grant gave lIis lluliloriurlioll 10 $o';))d out 

lhroo mmy columns 10 converge on Siol!.>:: Nation at the Lillie Big Hom River, resulting in tho 

Army's defC3ts at tho Ballles of the Rosebud and tlu:. Lill!e BiS Hom in June, 187(', Th(! public 

learned of Cuslc('S deft'lll en July 4. 1876, at the time of the Nation's Centennial Ccjcbr~lion. 

Reacting 10 thl! nCW8 with outragll, Prcsioont Gran! ~ent nell' nnny columns 10 Ihe Dakol1lWyonlillg-Montanl! arc!l, killing CllicfLamc Deer, forcIng Siuing Bltilto relire \0 CllIlnda and. 

Crazy Horse 10 surrendorln 1817. 

In AUgust ;S76. Congress pnsscd:m ap;!mplirtiofls bill dirccting ihn! there would be no mwe 

IDOII;;:'J' ~~lIt fur the "si.<bsi~tenoo" oft1J~ l.<Iwhl, I1U\esS cur p.:oplc gave up Ihe Biack Hills and 

our reserved hunting I~nds. A presidential eommissioo secured signatures of only 10% of the 

adult m~les to a so·cnlled "agreo::mellt" to give up the Black HiHs, in violatiM of the ISGS 

treRty's ¥.. consenl requirement for land cessions. Congress enacled tile 1876 "agre.::mcnl" ~ tho 

Acl of Feb. 28, 1877-tlw "Sell or Starve Ac!." 

At titm's, Ihe FctIend Trust ResJllIl!.'ilbll!ly Pr(lt~cted Tribal Sdf..Goyornm~'lIt 

Despite historical Federal ltrcu;hes of 1. <lSI, there Wl,lW sometimes g1jmm~rs of hope. mdian 

trcnties, s:a1u1w, \lX~tivc omel'S, OOUr! d!lcisio;u; ami ~(jminbtllltivc rulillgs pr(JVided lllmdy of 

law thaI foml, Ihe hnckdrnp f<>r the trust respcosihllity 31'.4 the Fed~al Trust Rcspollsibili:y is a 

venerabledoclrlnc with roots reacliing to the fODndutioll !lflheAmeri;~!1 Re[lublic. Al limes, 11lc 

Supreme Court limited the s~ope 1M! Federal !IlWS wDuld olncnvisD have in Indian Country, 

n~5cd upon Inc Federal Trust Responsibility, to !>lop Federal Government itllcrf!:r/lllcc with tribal 

s~lf-go"cmmenl. 

For example, in Ex P(lft~ (.'Oll' Dog, 109- U.S. 5S6 (ISS3), Ihe Supreme Court h~ld that the 

United Simes did nol have aUlhority io try Crow DlIg for U11I murder of SpOiled Tail, a well 

n::eo£lli~c<l LrJwta Chief, h~Cllm;n thu treaty roscrved c:rjO\~s b)' (lOC Imliilll ng:Ulll'it anothcJ' III 
134


517g7.eps

triblll juslicl.> systems. Tile Supreme CGurt cxpl:lin~d: 

'And congress shall, lly appmpriotc legislatiGn, sccure 10 Ihcm lin Grderly 

sovcmn"'llt. thcy sholl bc 5\tbje~t III Ih~ Inw~ Ilr th<> Unitctl SIM",", and ,,3ch 

individu~l sh~ll be IlrGtccled in his rights of proll0rly, person, and life.' ... The 

pledge to secure to th~e people, wilh whGm Ihe United Stales was contracting as 

n distinct political body, an orderly g~venl!nel!t, lly appropriato legiS[3tion 

thm:nOcr to be fmllled and onact~d. neecssarily implies, having regard \0 all the 

circumslan~es ntlcnding the tr.lns'lUtion, th~t mnong Ihe arts Gf civilized life, 

which it was thl.> wry purpose of all these ntrangcmenls to intl'tlduc~ nnd 

naturalize amGng them, was Ihe highest an:} bcst oroll,-thol Gfsclf-govommcnt, 

tho rDgulnlion by themselves or their own domestic affairs, the m<lintcllance of 

order and peace omong their olVn members by the n([ministration of their Oll'n 

laws and customs. 

Accordingly, the CGurt hcl([ that the guncml Federal slatutes against murder did not apply in the 

I;Hling of one Lakota Indian by "nolher, since the ISGS Treaty with Ih" Siom: Nntion reserved 

Bneh crimes to triballalV. 

Throughout Ihe Nineleenth Century. In([ian tribes were subject 10 Ihe Social Darwinist Altitude 

Ihat "lVhit~ society" WllS a superior oooicty. As n result, flcdeml law was often ignored and 

Indian rigills wero tmmpkd under in the clTort to "civilize" Indians. In the bter period, lhe 

Supreme Court committed holnous violations ot" Indian Civil Rights, sueh as £Clle Wolf 1'. 

Hi/chcock, 187 U.S. 553 (\903) where thc Court approved the destruction of the Kiowa and 

Comanche Indinn fcscrvntiOns under a Socia! Darwinist "G\1nnIimt/\Vard" theory of the Federal 

Tn,,:1 Retponsibility. Thn Cmll1's ,I""i~ion "'''_" "ontmry to 11m c.'.:press direction of the 1867 

Treaty Wilh the Kjowa lind Conmnclle. which rujuiwd ')4 mul~ tribal memb~r consent to any 

nl[ther land cessions. 

In the NClV Dcal Ern, the SUfrcmo Conrt hogan 10 unWind ::.eme aflhe worst violations ofIndian 

Civil Rights from Ihe 19' Century. As America entered Iho mid_:<O'b Century, President 

Roosevelt sought to restore respect for tribal sclf-govCTntnent through the Indian Roors:mi2ation 

.t\c\. And, in this period the Supreme Court begun te recognize Indian rights: TIlerefore, the 

United Siules' III.:ttlcmcnt of the Arapaho Trib~ on the Shoshone lndinn Reservation 1V1lS 

ncknowledgcd liS an illegal taking, which n:(luirc:l compensation. _o\s tho precminent lrust law 

expert, Justice Carunzo explainoo: 

The power docs not cl'lclid so far as to enable tho government 'to sive the tribal 

13nds to others, Of to appropriate them IQ iiS OWn purposes, without rendcring, or 

assuming an obligation 10 render, just .:orr.pCllsation; * .... [or that would )lot be 

an exercise of gu~rdianship, but un ilCl of con fisc lit ion." The right of the Indians to 

the occupnney of tho lmlds plooged to them may be one ofm;cupallcy ollly. but it 

is 'as s:Jcrcd as th~t ofthe Unile..! Stntcs to ~Ie fel).' Spolinlion is nGt management. 

SIW.1{u1IIC Tribc o/Inairws a/Willa River Resel'l'O-lioll ill Wyomillgl'. United Slatas, 299 U.S. 476, 

497·98 (1937) 
135


517g8.eps

In this ~ra, the F~dcl'lll TI'1J~( Responsibility was used as l\ shield to protect Indian trib~s rrom 

thirtl,plIny dcpr~dalions. Por e~ampJc. ill U/Uled 8lrJlc~ ex ,.,,1. HUIIlapr>i imlilms 1'. S(1fI1il Fe 

Pacific R"ilro"d Co" 314 U.S. 339 (1941). tho- United Stales ~ucd Santa Po Rni1r(l~d for 

possessian ofthc nborizinc.! Indian "md oftlm Hualarmi and ihrbnck rent fi-om Santo Fe Railrcrul 

ror its t=p"s~ on lite lands. TIle Coert rul~d In favor of' Ill!) Vniicd SI~tC!1 alld !hc Hnalup:d 

nxplllining: 

Unl)u!l.Ilionnbly it lias hccn the policy of the Federal Cffivcrnmcnl [rom Ihe 

h~ginlling 10 re~p~ct the lndian right ofoccllpunr;y, which could only be inte!Tered 

with by the Ullited Stnlcs.... [TJhe IndiaH right of occupancy is considered a~ 

sncred as Ihe fcc simp!!: of the whites.... l! would taku plain ilnd lUl(lrnhil.\t\(luS 

action to deprive the Walapais of the bcnrJits of that policy. For it wa:l fuunded 

all Ih~ desire to maintnin jus! und l'<:I1ceablo relations with Indians. TIIO rea~ons 

for its nppllelllion to olher tribes Ilro no less ~pp!lrent in ClISC of the Wul~pais. a 

~3'{agl) lril.>;) which in (:;lrlyilays Clluscd Ihcmlli!~l)'no end oflroubJc, 

TI10 Court found no ckmr cOllgrc@iionsJ action extinguishing the Huelapai tilio to tho Jan::!, Ihe 

R::tilmnd SIlITClldorod too land to tile United Stales, IlI1d the Court ordered llU !.lllCDllnting for !mel:. 

fIl1\!S duo 1'0 lln: Tribr:. 

[n the 20,1, Century, Ifill SIlJlrem~ Court Held the United States to the IIig1wsl Trll~t 

Stalldllrdl; 

In lho mid_20m Ccrrtury, tho Supreme Court ruled that tho United St<rtllS 5hould be held :0 the 

e1:~eti!lg srundnrds of a fidullillry in its trc.1ty and tl1~\ rc!a!ionS:hip~ with Indian tribes. In 

Semirrofl! Nlltic'" ~'. Unllctl Stafell ... 316 U.S. 286,291 (lg<l2), the Scmrnc!c Nation sued the 

Uniled States fOf fMUng to proted the trl1!1ty jlllj'l11r.>"l!s nnd U.11lllitles dac to the Nati:lrL The 

Supreme Court, rel)ing Oil the trndltional stamlllrds fwtommon law twslccs, cxpllli:wd: 

It is n well eStablished principIi; ofoquity thalli. third party who pays money to a. fiduciary for the btm~fit of tho beneficiary, with knowledge thnt the fiduciary 

intends to miaappfopLiato the moncy or othorwiso b~ fhlso to bi3 Iru~t, is 11 

participant in the broaclt of trust and Jlahln H\crefor to the beneficiary. The 

Seminole Gc~rol Council, requesting tho onnuities originally int~nrlell for the 

benefit of tho individual membcrs of 1110 tribe, mood in a fiduciary capacity to 

them. Comcqucntly, LlJe payments at tl;c roque>;1 ,,[tI!1;' Coum:il (lid not diSllh!lrge 

lhi; trealy oWig~lon if the GoYernment, ror this ptll'poSC ilie officials 

adminJswring irKli:m affairs find disbursing Iudian moneys, actuclly knew ll\:n the 

Counscl was dcfmudi.ng lhe members oflhe S~minole Nation. 

FUrlhcm;D)'tl, this Court 1m!! rccogni1.cd the d[stlncti~ Obligation vi trllst 

incumhent upon (he Government in its dell-liugs with (hese dependeot und 

sometimes IlXplnited people. III carrying 01/1 its frcllty obligatio/IS I~ith the 

[mfioll rriuC9 ilw GDver/l/lI<mt ir somelllfllg lIlare tllmr IIlIIere rrmrrodflfg plI$ 

UIllIe!' If h"mrslZ(1 Ulld se/fimposl!l[polit:y II'lji~lf /Iosfolmri <Zj#'f1Ssitm ff/lII1UIJ' 
136


517g9.eps

",;1$ of Congrl!ss umr NumertmS df'Ci#IIIIf( of fins Callrf, i/ Jrns cllffl'ged it!<'fj 

wit/! lti(>fflf aMigl/mm. vJ tke hiylJest respultsihility c/lld friL~L r,s ~olldu~t, 11.~ 

disc!osoo ill the acts oflhosc who r'\lpll.)srmi it ill dealillgs with tho lndhms, ~hould 

tllcn)rorc bejudged by the mom exacting liduciary standnrds. 

(Empl)'1SiS ;ldded). A~cordil1!lty, the Supreme Cilurt remanded tho cilSO back to the lower courts 

wii!! instrua!iO,ls 10 determine whether the Unitell SUllcs !wl mmlc jl<'lymtmls wilh the knQ\\'Jcdge 

111m they w;)(lId be waSlw md to provitle a rreo\'cry fGl' the Semillole N;I\ioll, i[lh1l1 wruv Ihe 

~~ 

lliSlll/'Y Sltlfflj; the WMflm ofNatiYe NMIIDIS 

Tndily.. lli.'\IoI'Y hil.~ shown thaI our Llll;om 1"001'11' wurc l'i!;llt. O\I~ phUosollhy is 10 Res;pcctlhe 

l3~rlh, tIS oLir M('\h~r:oo the People willliYe. Tcllay. man pollutes Iho Eorth III hi~ own peri1. 

COllgrcg~ Ims r<:puo;li:\ted nml1Y crlhe policies nr(hu 191h Century SDciul Dmwinislll by enacting 

Federal ltI\V~ prolectlng Indian Civil Rigbls und Self-Gnl'umm~'llt: 

• TIle !nwat Sdf.Dt:!cmlinr.tict\ eml Eduemion AJ:Si~lance Ad; 

• The Amcrir.<nl ImJrn:1 Religill'~~ FI'CCl.ioffiA\.'i; 

• Tho Tribt!! SllY,-O;¥C!'al1100 Act; 

• ibD Nalive A/IlCrX:lln Grnl'll~ nd Retlillriaticm Ad: llnd 

• Thp N~livc American Lan!:nagc~ Act. 

Even so., lIuring llll~ "more enlightened pcri(1d,"llldirul tribes were denied fuIln.nd fuirju~tic(l. 

In Sioux N(IIlOIt Po UlliteJ/ Slates, 448 U,s. 371 (19S0). Ihe Supreme COllrt heW: Ih~t (he United 

Siaies' laking of the B[~c.k Hills from the Sioux Na!.io.n, MIS in 011'«1 violation of the la(i!! 

Troaty, m'ltl W33 p<.lmaps the most ''riyl:: Imt! runk. =:ofdishooornblo lkulings" in llic i'Wfion"<; 

1~. SUll, .!letc was w re3\ jUS!it~. 

TIm SuprelTle CCllrt's New Brand uf IIl~il.'C ~tI AmllrkOlw Indi;!:n:a 

Yet, at the dawn of the 11" Ccnluty, tho Unhcd Stales SupremO Court has tunlCd into an 

an~chronistlc il1s!r1uw:mt cf negalive SOGill1 poUr.y-in cases, such as Nmwj(l Nu/ioll 1'. Ulliled 

Slaie$, S56 U.s, ~S7 (20[)9). Ihe Suprc:m~ Court h~ld (hat it was okay for the Seeretar~' of the 

Interior to hold s~orcl meetings with Cugll'olll!lany exccutiycs while NWVJjo oo~llei\SO;:S IJIlder 

hi" c"re II".ln.: bcingrc-negotintcd. InloriorpUt tts !1111mb m1 the 5c:1k <:!1suring n lowcfeostleasc 

fol' the Co~l Com:mny amI less I'CYCIlU\l for [he N:l\'~jo Nation from its nOTl-TCtIownh!e !'CSOll=. 

TIl" Supreme Com gm'll t,C l:rcdem:c tu the r~et thm Om(;''t!~ hllli riircd(!(/ i/J" &c!'eimy M 

"mlJ.,·i;.",7;e~ lri/wl fayi!llii.'sji"-rml f!ldi(J!( illillemis 1Imkr the 19.18 !m!Wl/I Miwral Le<L~,i1g ~[Cl. 

WIm:c is !ll(:.r~d.:rol ifilm Rw,>OlT!3ihHily IbrNa'!njo Natio:: non-rencwabh;miw.:ra!tl 

]11 Carr:fr1ri I'. ,'Mw:ar, :;:55 U.S. 379 (2009), Ih~ State ofRIlcde h:l~nd rtrgtlo<j that Ihe tcmJ "flow 

under lbdcrul juriooielion," rererred to I"diml tribes. lhal back in 193::1 were under fcdcml 

jUrisdlcliron, o( (he lime of the passagc of the [nLlian Recrglllli:;:ation Act, 7110\ !llCanS that the 
137


517g10.eps

Nal';1gnnsclls, neighbors of Ihe first Th:mksgiving, were prevented from reelalmins a sma!! 

fraction ofthoiron!linul hmndnnd. It 11150 meDnt thn~ the SUprcrne Court Ibr<:w ou~ over 70 years 

(If Sllllulory eon8tfU(:lion in favor Ilf lndbn lrib<n that have been resterro 10 recognilion and 

rclilSed til epp!y FOR's New Delli to thuse forgtlllGl1 dbes. Whe!""- is lire FcdC1'l!l Trust 

Res:xmsil}j!;ly (0 11:0 Nllragnnsmts? l'OSl. ill Um Supror.le Coll!1's rotum to Ina }9,1> Cemury. 

TheJllbcro is CabellI'. ,<;(I[m:(/J~ Eloui:«:! Cob<.:lI, ~ i31~kr/lOt Indian Imnkcr, sought to correct 100 

YOillll nfmism3n3!.~~mcnt nf Indian InlSt lands by s'Jing the SecreUlry oflhe Il1lerior, Secrclnry of 

TroJsury. and the I\uomey Geneml 10 forr.<: !ll1 neco~nting for Irnlivid\lill (ndim\ Money 

Accounts. These :lcennn!~ l\l'C the result of tho Allotmont Act, where individual Indian lands 

wcre held in trust for tha benefit of their owners, ~nd lnteriar managed rcvemlCS fr<}IlI these 

lands. Tragically, Interior nt::Vcr kepI !'Cal lIw:Junls, SO (he ETA could not account fQr tli(l revenue 

({Om the l:mds. Fractionalizalion of Indian lrust lands becnme n mnjorproblelll, wilh llI~ny tribnl 

mcmhern owning II :,mn1l pottio!; or fllmil), lauds. Tiles,., fracliolllrtefl int(lre:;1s are lar£c enoush 

tc UC ':In ltoeollnling hclldro:bc, not Ja::gc CJ'Iough 10 furl''<I or ranch. So, the ~t:!derul Gnv(l.'1'1lne:1t 

ngrcetl to II SJ+ htili01l actllemcm rill" imliv'.ttual lndian land r:\\111':U, yd lmlinll tribes were TIO! 

consulted ~ml Cnbllil li!w:= ngn:~d to (he expan~ioll of the s;)tUement claims without any 

conslItllUinn \~ilh lnilian tr;b~. As a result, indivill\llIj Indians \'ithin the B~1tken 011 

Fomlntion-perlmps tllO largest oil field in the World··-~lancl1D lose tlt~ir claim~ /hr bre:\ch of 

trust, and other IlnimcmJcd rosulls inc:1ude IIle crmeelIntloll of 111l1iun land bounllary disputes, 

withuut allY Icgal revioll', 

1'111: Cobell ScttlcltlIwt lind RUCCIiI Supreme Court Mishnps Demonstrate tIu;, Need fllr 

Trust Reform Legisiatiull 

Til::: Coooll Sctl!emoot needs!o hll rcopll!l~d SQ tllat the indiyill~ul Ti;rli~1l 1~..Ild {lI1'r'.cr.:; thrown out 

of court bcc::u~e they failed 10 cpl·ot:! cftl:e Cnooll Sclllcll1ll11t, slwutd be given llllGW chancelo 

weigll (l:;c COOlS rout C(:Ilcnts of COhe!!. Tnl:m! governments were nr,llble. \(l help b(IC~use Ille 

Unitcd States. Justicc and lnlerior Dcpru1mcnts refused 10 00051.111 with us until after the factafter aI1, according to them, Indian lrib~s Imd no inton:st in llt~ case. Only their tribal mcmbcrs 

bnds lI'ero at ~take! They forgllt that indivi!:lunllndians arc thc citizens, 11'110 mak~ liP Indi~n 

tribes. Where is the jt.lStic~ for the Cohcll lmlinns, who without lIwir knowkdgc bud cbims 

c);linglliElted? 

There sltauhl b\l a U\lW Fedcml Tru~t Responsibility Enll<1UCcmcnt AClllmt provides t!nll: 

• When the United Slates !~kes culltrol of Ind[an trus~ land or prop~rty, there is II 111m. 

corpus; 

• Whcn ti,e United S!a(-e.s c5inblishes stllnli"ltris [or dCllling with ludinll trust lands or 

propcrly. it mu.~t adll~rc 10 tllelll as n lruste.r, nml 

When the UntIed StOleS hIlS cOlnrol o[ ~n [ndiml trust corpus, then it must be as 

respollsible os II tnlstce thai has control of privnte land or properly ond provide 

compcnSlltion for ulldue mislakes. 

• Whel1 the United States gntltcrs information nboullndinn tmst lands or propflrty, it mllst 

stmre the illfonnalioll with the bC!lcficlurics,llS any mhl:\'lmSICC would !:lo. 
138


517g11.eps

In olhcr\,"(lrd~, {11Il" United SMa llli1st CltOfd~c II 01111' of!1l}'1l1ty 10 it~ hCI)WlGi::uies, !mHans;md 

In~i:m trlb~" ru~1l !lollwkl scm:1 meetings with Cool CompRllies or prhmu interests not ali!l11W 

wilh Iht': hltjiiln~' or tribc.;' best inlert!M~, The United Slates must n~cmJl11 for funds, must 

prudOlltly inY'~~ r~sourecs, nnd must pmpQ!'l,l' nssisl Imlian !mtiong In thc dc\'clop!lIctiL of 

rcsmlll::CS. And, Ihc United St:llcS mu~t as:iIlmc tile responsibility for its. malfeasnncc, 

miEfo:a!!>lute, )1r111f=nncc.. and brcacllCS of!lWl\, TJis is lito legisl~lkl!ll\C{ldcd to ~trenglhCII Ille 

PcWro! fusl R'JS{loJlS,ibilily, oro \~l\\t Indlnn. tribes f1lIlylmly toe prolcclCiJ by Ul" Lil1il~1 SlnlC._ 

iOv<;n int i.~ \110 b-nifoo SIMes lTnm whi~h we- 1'.wt1l':Uicct~m. 

The l1:n.iti:d StattS Has A ~ Om:;~lt.1'liilli Iw.ky {)II r<:p;!I', 1t Mus{ be Enfun:cd til 

ITzcli\l~, 

PTcsidont. ClinlOn issued Executive Ord~r 13175, Clln~l11llltion l1ntl Ct\ll~bol'1\tlDn wUh Indian 

Tribn[ GtlVemlw;:ols (NilI', 6, 2000), 10 I"<lSP~'l:t lrilml ~Ilverci~nly. tribal mlU,dll(Cmlinalion,:mel 

cconcmie ~<)'U'unm~~~lIcy. pf($idenL~ Bush nml Olnm<l have both rtJamrm~d tile COllslIlialiaf\ 

EXccIlLiI'll Ord~r. 

Tile EJit;CUti\'I: Onkr exp13ffis; "The Unltoo SWes rerOg1liZe5 (lIt. nSlu or frnnQt1 trilles t.c rell"· 

£IlVl:rt:ll'l'lellt andliuppmts !nooJ SIm.!~lt1 lI\".,J ~lf.&!eMhmful!l .. '" It fnrtloet s:al~ 

0'11· N~lb:" \mi.~< 1k ~ of the 1!tllteu Stm-eE, if< m::wraatlCt' with !ro:i:;w, 

~I:l\l.\lle5, E=uUve Qr(krs, ar.d j\Hlf;l~i dccisiolj~. i>:n :rt,.'Wgllizcd l\lC right of 

Indian h1bcs \0 sclf-gl'H'CI'tlUWIlI, As dom~l1e dependent na!iMS, Tndioll lribes 

cxo~i~(llllherellt SOVereign powers ll\'Ur their members and 1~1l'i1"1"/. 111e United 

S'Qte~ ~ontillucs 10 work wilh lndirul tribes on tl govemmcnl-\o".wv~rlllll~l1t basis 

to ntldmli5 ISliUCS cOllccming Indi~!l tribnl solf-govcmmrml, IdbQI [ru!l1. l'CSOurces, 

~nd lndf:m lribnilrcalyaml other dgh!~, 

(1\) Ase!tOi\5 5->'0::11 resplll'll. lndia..'1 lribnl &clr,.~(:-mmer,1 Ilnd ~1)"(tl~1y. imMr!rl:b1ll 

trol'!(Y tmil (tther rigil'~~, <Ina Slrivc 10 mro1. HI;! Rsp'llJrib:i1ilms (hill: nfue finm 1M: 1.miq!!" 

legW.l~lati(ln:;l:i[1 b~etmlh~ reru:rll.l \JoVCTJllllcm. m:d IncHa:! tdool i\OYcwmom!s .... 

(r.) Wlwli (lJ1dcrt;!king 1ll formubll~ and jmplement poliCIes I'hdllmvr. frillal implications, 

age-nell::> ~h~lI: 

(I> On~lJllmso Indinll trib~ to d/.:'I'Cl(1p thckcwn p[Jlicies 10 acl!illva pl'flgram ob.jCIJlive5; 

(2). Wllcl\~ p;J~ib1e, defer to in(jjnu ~l'!bes 10 cstl"lbJislt sla!l1~:ili:; ;md 

(J) In ii!:\'!1'I'.linms: wirol!-= \-0 el:mbllsh Ft'J!..fa'll ~~ ()IJfl~llt 'i'li!~ WMlllfficinls m; 

10 the. n:ere fur frot::!il: ~!!mdanJS IIHd my m1c.mmiv>:s IhaL wooid fmm il"~ ~ of 

Fcll'3.\'ii! ;;tt'lnda..<lli: or mh.!!!",Aise pre.em th'" Jll"CWj¥i\lv<:3:md llut!:mt(y anr.dinn lriues. 

111is ill a good rliwctlnl, yet bCC(l1.1SC rT, iii ,jl'Mly an cX~~ulivc ordcrcnch ~lcy int~rprels it (and 

disregard~ H) ~~)l ~ccs fit. 
139


517g12.eps

N£ exmnp1s:, thc IRS has l'~!:Crlt1y largcted Indlall. lrobes for atldils. 7hc. filCt 111at our Siom: 

Nation ttibl)$ b~1/(l5 Drlhe 10 pDoresl t:tlll1l1ics in theCO\1II1ry on 011( teservntion lands docs no! 

dissundc lh~nt. rho IRS is auditing us, nsJdng fQr (l1'ery payment!o ~ny trib~l council Incmbcr. 

cmplo),Cllllr Irih'll mcmllCr over a periotl o!'8cvcral years, cvery bank !IOCOUQ1, Ilvorycxpcn~e 

rcporl, every pO\~wow prize. Lilcmlly, millions ofpupcr lmnsac(ions. For willi!? 

Wcc)(plnln to the IRS that il is worldng with !nlml !:oVCmlllCnls. wh(l haVcllln:(It)'prolcc!cd 

Tigh~ to solf·g~lVcrnmcnl mall! right w work \0 pr.ovWea heller oommuuilylil'o llll ollr 

"'S'm'ilIions, wh!lre ll~ .:\v<:I"\,,"" life ~~P~ll!'l~1' fm- men is 56 }'<!ar,;. Y ct, it sa),s W!l-n~ !o rnwc 

lllmiRmn llpplicalitm ofthe glloer/d W\l\f.'lfll dotl!r~'W.. ff it g(iv=mcllt ptogram ism in 111O 

gcncrnt wdfare, tile: IRS wants to lax il. Fer \lJt.'lmplr; Ill'.lro is.sumo. S\lgy;..~!.:m fum it wants to 

1m: FEMA tf'lih:r,~ provided tu lrlbal members 1lS:! hOllSll1g :!IIow:u=, yet wIlen tbc:Uniled 

Slates pr-ovloos jh~ WJlitc HoOUSt.l.:llln C:!mp David lOlhe Prc.<lid~l, Incr<:; is no t1loughl oOfFcdct:l1 

Ia:-:atil.ln. We SUpp<lrt the President but il 1911 dllilbio slnmlard !oO Iry 10 imp\lse a Ia:-: ou a poor 

hldian family for n )).EMAI1.iliIerwhilo the Prc~idcnl's home is ~implypart nflhujob. There is n 

cullura! tlh·idc. 

fn the M!(f..:ZO'~ Cenlury, Indian LmnlS Wel'<l Shid,lcd From relil:rnl T!lJ.:lIiion by 1he Trust 

nGp\l{t~ibml~ 

Tn 111<:0 Jll'ea of Iw.~tion, ll~ Supreme COllri cl1cide:l m &!we Y. Capcmmm, 3S! U.S, 1, 7·10 

(1956), t!t~t !be pro"ecds or limb\!r sruCii from nooltcd trust lnnds on Ina Qdn.'rul! Jlldm." 

RC!Hlf'l,'mion wen,nat subjecl.lo F~erol capita! gain. tuxcs. 

TJl(! Court c~plninod! "'l11e: Government \lrgos u~ !Q view this ea~e lIS pn ordinary lax eas~ 

without rosuM 10 me lrcolly, J'lJlcv~nl :lWlutos, co!lgressiollol policy c(.Jn~cming Indians, or the 

gll~rdi8n'W:'lrd rclnLicnship bc(wcCll tllc Unilc~ Stalc~ ,l!ld thesu p(lrtic~\lar lndin\l~." 11,,, Courl 

agreed thaI, ~llI~id" th" urC!U;" gowruoo 1)), treu!y mnl remedial legislation, Indians Dr" cilimrn; 

and in ordbmy uiThirs oflif!;> arc t~t"" 3.$ utlt.or "ilnen~. Yel, n"" f'..:,olltl fuund IhRt [fl'l(ftlloo of 

hl\li:ru1 t.""tl$! !am!s WllS UIC: ~Ubjf!\:1 !.>flren'ly and remedial bghllltmn: 

O!R1Ire.~ In ::ut IDllilf'..dmenllQ tile C"Wcrru AirolmentAct, gave mlil!ti(>nlll force «l 

respornlc!l!~' jlll5illan. "Snt:llon £ uflbatAct WlIE Hnl<:l'ldcd to lachldell. proviso-

'Thai the Sc~rctary oOf the [nlmot nwy, in his discrclion, Md h~ is ll\lUtcrized, 

wbl'l1(lvr.r be ~1JaU 11(: snLisIic~ tha! nny llldinn 3110ttce is compctMt ~nd cap~blc of 

mrumgillg hi~ or her affairs ill any lim .. to cnuSll to 1m issued tll ~lI1ch allallee a 

pal~fJL 10 ~e simple, and thercaf\cr all rllSlricliol1S. ~s 10 sale, incllmmm}Cl!, Dr 

m;mlon efBufd !lind shan bo ~Ul¢ved anI! !mid :'allli ~lrun not \z(j linb-!/l to the 

~atiffa~Lint\ orllllY debt cuntral!tcrl priorlo the issl.ring olsucl!.paltnt ~,. ": 

Th" Gowrr,ment arglWl Ilmt Ii#,; mnmuknCtlt \"lru:; tlirect1lt'! roJruy ~t p=Htmg sill!;:: l!1lrl ltl<."'1ll 

laxation Dilu a T.l;:lsfer in fm:, but ilier.:l is lUI illdit;alio;.l in UIC legi£!utIYe hislDl)' of the 

amtmlmcn( (hat il WilS 1<:> be SQ Ulllited. Th~ [.....:! lh~-( llim runoodmctll nnladBlad the federal 

income IMt II)! 10 yenrs .also S~Dms imlovnut. Tho Jileral languaS~ or tho proviso cvin<Xlll a 

ccm,gressional inlc!llla subject an Indian 1\1l1'!~m~111 to all taxes ollly afler II palent in fee is issued 

10 Lh" all(l1tec. 111Is, in tum, implies tlmt, until ~1I\l\J lime os tile: p~tent i5 i~sncd, the allotment 
140


517g13.eps

shull!,,! tree Ii'UJIl ull tax~~, bOlh Haw! in hclug Ulld thase wJlidl might in the fU\Ilrc be ellm:(ed. 

TIle first opinion of an Altomcy Gcncml tOllching on tllis question soomc(l to constme the 

1~I1Su"ZC of the: ~l1wndmcnt \0 S~ction (} Ull exempting from the income Inx income derived from 

restricted lI\Jolmcnls. And even without su~h 0 cleut slutlltory b~sis for exemption, 0 ](lIor 

Al1anlcy Gcn,)£al ndviscd thut he was-

'(U)nohlc" hy rmplicruion, 10 impala 10 CellgreES under the broad ltmgnage orcur 

fntemal Revenue Ac~s ;1n int(:!l\ (0 lmpOlU! n t:ll( for tI,e bCllCfiI of tlJe FOOL'rn! 

Govcmm~nl Oil kcomc ilcriv!!rl ITem tho rCiSlrlctcd property of those wlmls ofille 

IIl,lion; property the TWoInngcrncnt and conlro! ofwhic11 resls Inrgcly inlhc harnls 

of officers of tho Govemmcnl clmrgcd by I:!w with the rasponsibility and duly of 

protecting the inlercSL~ and welrare uflhese dc['emlent ['coph:. 1n nth~r words, it 

is not lightly 10 be assumed thilt Congress intended to [ax the ward fur [he benefil 

o[(hcgtJ<lrdilln,' 

Two ofthesc opinions \\IcrC publishcl[ as Treasury Decisions. On HIU bmds n[tllCsc opinions and 

decisions, a,lo:! a se.;cs of district ~nd cirulli! COllrt decisions, it was s~id by t'eli'\: S. Cohen, an 

aclrnowledgcd expert ill Inlli"" law, Ilia{ 'J[ is elcar lhat !fie exemption MCO.'l:klt trib.,1 am'! 

=!ri~tcd Irnllan !ands extends 10 (be inceme dcrhw directly therefrom.' 'nH~sa relatively 

oonlempcrancoos offlcia! "'UIlIlJ1Qmcl~l writingR nf{l <mtillcd 10 ccnsirlcrntiol'l •.•• 

TJin wiSl.1(lm of the congms~ion..'l c:»cmplin!) from tilX l:mbodicd in S()etion 6 of the Geneml 

AllolmMt Act is manifested by the faets of tile inst~nl case. Respondent's timber ccru;titutcs the 

major value uf Ilis al10Ued laml. Thc GovefTUHunt detcl1ninC5 Ihe conditillil$ under wbich the 

cutting is made. Onoe lo,gged olf, tile land is of lHtle value. Tho land nQ longer serves the 

p"rpIlS(l for which il WM by lreaty set ~sidu to his ~nt:o':Stors, and for which it waa al10Ucd 10 him. 

It Clln no longer bo udequate to Ilis neros mId Scln'C the purpose ofbringillg him finally 10 a slate 

of oompcleney and indcpcndCllce. Unless the proceeds aJ the tintber s~1e .. " prc5crvW for 

respo:,deu!, he crumm go forw"rd when de-elured cmnpctent wilb. Ihe 1Ie-.:eJ;snry chan-~o of 

ccDmlmio surviVl11 in compalHion with others. TillS chance is guaranteed by the lax exemption 

afforded by ;he G!.'!1cr~l AlIntmco: ACI, Mil the solemn umimtllking in the palcf'.t. It is 

un!'C3sonablo to infer that, in 'm~cting t1\o i\loome tnx Imv, Collgres~ inlemlcd to limit or 

und~rmine the Government's undertaking. To !>IX respondent tmdcr these eircumslanccs lVould, 

in the words oflh~ court below, bEl 'at the len.~t, asorry breach ofrrrith with tllese Indians.' 

In .short, tho Feder:!1 Trust Respnnsibil1ty provides the principle guidcHna fbr Fcdcml [ow 

relating to 111di311 tm~t tallds, natural T&SOUn:;'l$, amI tnlSt property. Other Foderal law must be 

interpreted ill light of the Fcder31 Trullt Resr.oasHtiUlY wh::n it ttpplies \0 Indian l:mds, aatllflll 

n::SUl.lI'CCS, t.rust Pf(llu:rty, Of tribal sclf-guvemmout, 

T&dllY, Ihi' IRS GC1Iernl Wclfl1nJ Da.:trilLIl Ignel"l5 the Federnl Tr:lst RL"SpQJISW:lity. 

The IRS should knmv: rndinn trealies nre lnws. 'I111;:ro is no ropIJa[ orlnw by illlplicatiml, so our 

treaties MC otill in force (In our Indian Innds. The Federal Govcmmonl s(ll!ks 10 promole a bc1ter 

community life OIl Indian r(:scrYations by prClviding proSffims for: 
141


517g14.eps

Cbildrcn---Hcadslart, Hdlhy Sian, Yuulh prngr<II11s, Boys & Girls Ctllhs. 

• EdM~lion-Pru-SchoDI, Elementary, SecondalY, Posl-Scc()nd~ry, Tcchnicnl Schools, 

ScholQl1lhip prctgrams, llmongothcrs. 

Cultllre-Nativo American GravPH~ Pmicclilln lind R!!P~triiltioll Act, Nntivc Langullge:; 

Act, Notional Muscllm of the Arncri~an Indian Act, Amcric~lI Indian Rdigious Fn:e~om 

AcL 

.. Elderly--Oldcr AmertennsAC\ N~li"cAl\1cric[llJ Progr~m. 

.. Eool1omic Dllveiopcnl--8BA Indian Progr.tl1lE, Cammcrec MBDA, B1A OrrH:C of 

Energy "lid EcoOOlHic I)cvclCPlllWt., USDA RUs.. 

.. Hcphh ClIfl}-----!H8. 

• Hous!llg-NfrtiVcAmcrican Housing and Sdf-Dcicrmillatiol) AcL HUD, FHA. 

.. Trallsportation-BIA Roads, USDOTNlllive American Highwnys T'rognlill. 

Justice-COPS, Tribnl Jails, TribnJ COLlrlS. 

Tho IRS sho\l[d ~ay 10 ilself, irlhe Fcrlcml Government is doing all ofthlm~ programs to promote 

bcuer rescrvation community lifo in (1cl;ord;rnce wilh Indiiln lroatica and failing due 10 

immcasurnblc Ileed Dlld impossibly limhed funding, then rndian tTibes 5ho(lld 11" whatc\'(lf they 

~an to but!cr their communiti~s. And, if /I tribal gO'PuJllm:lI! progro/lf ($ desigllet! f(J bct!!!r 

lrilntl "O#lIIJUui(l' lift: lIml muk!' <111 [11((1(1/1 raun'aii(JJ1 a "/i"'lb!,," pwmafJUltt JW/llefor tribal 

cillwm;, theu it is iu the "g!!lwro! II'£Jfltte" of ill.: Un/raj SI(1tes il=llse it/urtrum. u.s. ltCUlY 

obligntiOlu 11) Imiiallll'ilH!s, W!dcfl urejUlrt ufrb.u SlIpr(;!m! Lmvj}/tiw £«lId. 

Thu IRS shtJllilf /lot bfrrtlell trilml suif-gr.lI'l:r/tniellt /JII!mliarlltlllr/s, Yel, the IRS cannOI sec 

this because il has a go,,1 {If milking L11~ In.''! code unifonn. If you deslroy rmr reser_alions 

Ihn:mgh tlle IRS nudit process ond IRS buro. ... \lcratie intrusion 11110 our tribal lands ami 

g01'cmmonls ("yO\l ~all argue aboul your treaties injali," one ofollr tribal h.ladtll1; was lold), Ihen 

[hI:) IRS lmv~ simply "io)a[cd otlr t,caties 0111) mor~ lime. TIle IRS is c~rtninly no! npplying the 

Exl!Clllive Order on ConsullDtion. SUR', right now, Ihe IRS is ~-ollSuHing (yc1lrS aflcr 

implcmmlting II diSt:riminatmy [md;! pr(lccss), hut!hOY:lay their hands are lied because they mllst 

impi<lmllnt the tin: corle unifomlly--ml:ul\ing witimul regard \0 our treaties. We h:we ;;cen (11m 

"uniform" befo,e. 

TI10!"(l sh:l)!ld 1:u: " SIa(llIC like the Rcgulnlmy Flexibility Act, wnicll pm!~cls small busincs$ll.'l 

from J1cdcr:d Govcrmncnl bnrd~lIS. But it shOUld protect Indian [ribes, li1.~ the federal TnlSt 

Responsibility, so It should bo called Ihe Trust Responsibility UnifoOll Enforcemel1t Act 

(''TRUE''). Fed<:ml agcndcs shonld be required to consull with lribes, identify WlIYS for fndial1 

tribes 10 handlo issues rclatillg 10 rescrvatioll govonmncc, and defer to tribal governments to 

provide om- OWIl lraditi!lnal. cultural solutions 10 the issncs that we face ('In ollr rcselValions. If 

they do I1ot, tribal ¥-o\'Cmm~nls shuuld !Ilwn a rigH to go. to court to rcVCniC" u!1dnc r...::deral 

agencieJ:' burdens on treaty rights lind !ribn! self-guw:mmcrn. PcrJrops, the Act should be nailed 

,he Trfucl Responsibility, Uniform &:If-Govcrnr.m:c Trost Act alld lhe nrmnym oould be 

··TRUST." In any event, if ~mal! lYilsincs= = worth protecting, Indian lTibtlS-lhc originel 

Ameri= ~ovll1'eigr:s-.. ... fC worth pn'llccting. 

Col1gre~s should also consider enacling lhc a:m~\llll\lion ~nrl COlJrnil1;ltion with Indian Tribn! 

GOl'crnroC'OIS Act, H.R. 5508 (I til'" Cong.). This legislation seeks 10 en~ur" m~nningrul 
142


517g15.eps

eOllSuHntion and eoUnboflltioll with tribnl officials in Ihe developmcnl off-ederal pllIidcs that 

have tribal implications, ;lnd would require llgcnciCilto 0)X(11or~ and us~ oomcn9un! mechanisms 

for developing policlcswh~1I issues relate to lribal !e1f,dc\c!ll'.in;tlioll, trihaltrust tcliOllrcc~ mld 

lnmty am! other rights. 

TI,e Return nfthe Native NlIliDllS 

TIle goul ufthe Federal 'l'rum. Rcsporlsibilily should be re-!lXllmlncd. Tlu: !:Io:!1 is not to lilt up 

[mlilln ~ocicty to the lewl orwhitc society, fIS po~ited under tile Guardian-Ward aonlng), in the 

S(lcin! Darwinist Era oftha Jille 19,10 Centnry. 

1110 goal (If tile Federal Tru~t Responsibility !lloultl be to Iiollor Indian ttCll.Lics, as the 

fundnmentalllgrecnlcnls between sovereigns. TreJtics roC01,'11Uc and prolcct 

.. Ifldi~n Inlles lIS priOJ' soverc:g1l9, with ~~Ir-!\Overr.ing 8u;nnrity over mIT Indian IMds ami 

peopw; 

• India! Innds us -pennnnent home!ands. 11m! lInl 1\ srrdl p<.r1 of origin:!j NaIll'\> Nlllkm 

territory lind \Vhjdl must scrvcns VIU\>](:, U .. "ble hnmclands; 

The Ullilcd Slates has IltnlS! I>:Sjlorn;ibility to provide: ror education. health r::aro,ll0llsing, 

rcservDtiol1 eoonorniu dove\opl!I(lnl, and 10 ptO\(l(;llribnl and imlividual Indian lrus(lands, 

property, nalUl:[l1 resources, water and air; 

• The Uniled Sl3tCS trusl responsibility silould be aimed al -promoting lribal selfgovernment so Ihlll Indian tribes (;lin be returned 10 the indC[lCJldcnt, ~cll~gQvcming 

homchnds th~l OUr!iCOp[c clUoycd Crom tiwe immemorial; 

• Policy snl)l,dd be b'lscC UpOIl govcffimclll-1O-ll.0vemment cnllSultntion ~n:l mutt::l! eonsent 

anmll. gouls, policies, strategies, finalW'",s ar.d implcmC!}t~1101l :;lmnld be !he pl'ovin~ ofIll", IrWilI govcrmnenu; m,d 

Approprin\ions should be negotiated b::t\\'i!CII Federti! ngencico, Congress runi lndian 

tribes to reflect our neillalooeos, act1lnl population, ,I!ld l\ctu~l situation; 

Appropriations :;i1ellld be incl'CUsed 10 meet the n~lual lrent)' obligmions nr tI"" United 

SIn!';:', Government. 

111crc should be a return 10 respect ror IntemMionai Inw, as President Jefferson recognized in Ihe 

!S03 louisimm P\\rch~S1: Tre:lty-mutua! ronsc;nt~, the true busis or govcrnmcnHo-goycmmcnt 

1'<!13timIS, The Secretary of Ihe Interior rrcqllat1tly te."liIies ihat the basis for our tellitiollS with 

r>ederal territories is II polley founded upon mUlUilI Cllnse!lt 10 !Ire greulest extel)! pmcticab1c. 

lud~n tribes, Illi Native Nations, deserve lit [enst !hilt much n:5PC~, 

The Fcdcml Trnst Re$pDflSibllily nnd Proem1 protection involve 1h<:: ~l1hatJe.-:ment of Native 

Nations. They must pmmote Selr-determination nrul Self_Govcrnance ill ru:cn:u wilhOllrtrealics 

and the U.N. Declaration 00 the Rights of Indigenous Pcople~. The U.N. Dce1m"ll.tion calls for 

respect fer indigenous self·delermination, indigeno\\~ lan:l~, waters, and rcoouroes. indigcnollS 

languages, cultures and l.I~dilions, indig<::lIous oollCl!.(ion, indigenCius he~lth care, and ~dcqunlll 

financing for indigcnoll-s institutiOn&- It is timo [or tho;: U"ited States 10 move rorward lI'ith the 

rel;t oftbe World, mid r<:cognizc indigenous rights as natural, human righ!s, which have QrIgins 

!eng priorlo today'll lla!ioo-st~ltJ;S, 
143


517g16.eps 517h1.eps

l1w Unitoo Stotea must ~nd the g~l1odd~1 affects or tlliluro 10 nppropriatc. We mUSl c\ml1gc 1M 

terrible dynamic, where our children eHn ~pcclo life cxpool:l!lcy 2U years less lhan the senei'll! 

popu!lIlion. We must ~nd thn astronomical high s~hool drop nut mtcl. We must end the kill!n!: 

cITe\:ls of '10 jolls and 00 for=~blc opportunity. We mllSl reinVCllt ill Indian Ctl(Jntry. The 

FMcrnl Trust RtspCncibiUly is a [iCa ~nd lk:31h mRlll:C 10 olltpt:Qple, ~lId Ule Unh~d Sta!~s' \\O(I(.It 

h:mg!> in tho blllnncc. 

Enh:lI'lce .ho fclkl:ll Tru~ t RcsJXlnsibiJity. Give it il~ migillul ulld true mcnning. 00 not leI 

Fedenll Ilgellclcs :md LIlI: Fc lc r~ 1 ~oun$ chip uwny at the foundatio n of our govMlrI'Ient-to.-

g01'ernmcnt lution~ !>imply ta CSCJPC their Icg;tl rcspol1siblity. 

Thonk y~u lOt Y(lur hllId work. Th:'nk you f(lt caring. 

On bo,::,huIC oC tho Oglala Siool>; Tribe, I Dm plw 5UbmiUinJ: uddilion~1 leslimony for the l'tlIXJnJ 

with an ~tI!Icl l~d ution from (hcGrUI rlainJ Tribal Ch:lil11'llln's "~i~lipn. 

Attachments 

Ch'limlun Akaka. Vice Chainnan Harrasso, and memben; \If tile Cummiltee. it i~ an honor 10 submit thi, h!stimony on beh~lf of lilt: Oglala Siou.~ 1 ribc 011 this issuo thJt is so 

toonnousl)- important to the well-bcmg ami future of our Jx:ople. 

1 he OlOlala Siot .. \ Tribe. locattd on the Pioc Ridg~ Re'iCr-ation in South Oakot.a. 

continues to endure 50IIle of tbe mo:<l :..j'.:rsc social and economic ~,.)lJditions found in the 

l'niled Stale:,;. Wt ha, ... man~. man> unm~'1 ~.l'"S~ial1~ in the areas ofmcdical can:. 

education. ~ng. food. and j<>b opportunities. I don"t ~'d to tell ~ou lhal job!. an: 

e:'!tremt'"l~ ~lIfCe in our communi Ii,." 

Ollr lribe must ret) on lhe lInih.'d Stule's' fultillm~nt <)1;\$ treaty obligalions and 

trust oblil:otiolls in order to help meet the most basic needs of our pL'Qplc and the Tribe 

1bc~ obligations. II.'i 'It havo pointlod <jut lTW1y times. are nOI limitc-d 10 the items 

mentioned in the l·nglhh lanb'Ulllle ,,,,...ion of the 1868!realy, In fac1. gtrotn promises 

"ere mad,,_ under our intctpro..·lation of lhe treaty and aeconJinllla our own oral hislory of 

lhe Treat)'. Our unJcrstanding of tho: Treat} is consistont wilh Ih~ l"nited States' own legal 

nM of tre:al} imaprelation that a lNal,· m~ be inlcrpretcJ ~ it was undcrsrood by the 

Indian pou1y. 

Today "0 continIII' 10 rel) on the fcode",l government 10 protc"':l and manage OIiT 

tribal lands. I'o:ucr und other ro..'S(lurce~. a.~ well as the ullottcd lands that an.: in trust 51UtUS. 

Stn:ngth .... ,ling and maintaining IIIe tn"t r~laliun~hjp is of the \cT)" 8"-'1l1c-<;1 importance 10 us 

h is no c"llIU: .... ralion 10 sa), thai maintaininllllle trust relationship is really a maltn of lir .... or 

dealh lor man} afar;. 

lllc JIro31e'\l ~"rlCl.'Tru> fnr thoe ~Iala Si ...... " Tribe about the: tn.ISI rdattonship are 

•. 11k: failure of Congn.'s.'I 10 "pproprimc ad~'quate funds for the Burt'3u of 

Jm.lian Affairs 800 mher teden" Jgcncics 10 prolect, maMllc, and o~en;ec the 
144


517h2.eps

property. resources. and inlel"\;sts of the Oglala Sioux rribe and othcr tribes. 

Witham ad~q\l;lte funding.. the IlIA and other agencies cannot curry out their 

trust dmies. and thc Tribe's resources. propcrt} and funds arc then at risk of 

loss or mismanagement. 

h. The t"tlilure to pro .. idc adequatc funding for the lilA to carry out its duties 

causes real hardship and suOcring for fmnllics on Ihe T('"scrvation. For 

example. there are enormous delays of SCH:ral years in probating Indian 

wills, and these delays result in serious economic hardship for hard-pressed 

lamilies. It is clear that this problem and others Uf(" the result of grossly 

insufficient funding. 

c. lbc failure of Cong"-'ss to appropriate :Ldequate funds for programs and 

assistance to the Oglala Sioux Tribc and to indi\ idual members of the Tribe. 

Our Tribe and our communities, dcspiK' our long-tern) clTort~ to dc\elop 

t:eonomically. remain extremely dependent on Icdcral truSt programs for 

meeting our lIKbt basic neNs from medical care to housing. education. and 

gener.!l (Issistance for tood and (l\hcr needs of lamiJies and individu.1Is. 

d. \\e 3rc particularl) alarnwd by \\hat we and other tribes in our region see as 

:I deliberate tum to\I:lrd thc dismiITous policy of tcnnin:ltion. Everywhcre. 

lIe see signs and indicatiOJls that the Department of the Interior int..:nds ·"to 

get out of the Indian business:' We belie\"\.' that we are facing the threat of 

dra~tie reductions in trust assistance cven evenlU.1l temlination of the trust 

relationship. Tenninalion would be a disa.slcr of enonnous proportions, 

inllieting evcn more suffering and deprivation on our Tribe. The truSt 

obligation~ of this eountr~ arc deep. lq,:al and moral obligations that cannol 

be simpl) laid 3Side as a policy decision. "I hesc trust obligations arc not 

mere entitlements that CongNss can \\ithdraw at \Iill. rhe Great Plains 

Tribal Chairman's Association. of \\hieh I 3111 a member. adopted 3 

ResolLLlion laM Fall Ct)IJcerning this issue. A copy of the Resolution is 

attached. 

c. We also are concemcd with thc possible abuses of the ti:.-deral government's 

authorit) when it acts as trustt-e - excessive power and authority claimed b) 

the Unitcd Stato:s and tho: hid, of full .1ccount3bilit) \0 the tribes. An 

example of this is tht:: po\lcr sometimes c\aim("(\ b) the It:deral go\ernment to 

dispose of or sell our I:lnds without our consen\. We do not agree th:lI the 

fedcral gO\ emment has any such power as a legal mailer - and the usc of 

an) such po\hT \\Quld be a dir~'ct violation of our treaties. SI<:PS should be 

taken b~ Congress to clarify Ihat no such power exists on the pa.rt of the 

trustee" 

f. The trUSt relationship and lru .... t obligations must remain strong. but the trust 

relationship doesn"t include interference with our soven.:ign tribal 
145


517h3.eps

l:Io,emmeni or tribal dedsions, 111.; trust relationship does not mean abuse 

of power or the ,iolntioll of treatiC'S. As a $01'c:n:ign tribe, we cannot bargain 

aWl\)' 01.11' so\,,"I'I';gnly in c'I;elu\nl:lc for benefits wid protection that the fed.-ral 

JIO'crmrll."nt is rt'quire<l to provide. 11' .. do noI OCCI.'/14 fIb/IS, affedeml pf/ller 

in the name uJ rru.tlu~hip, The R~'SOIUlion of the Gn:aI Plains Tribal 

Chainn;ln-s AssoI:iation speaks Vtry strongl)' about n:spccting both !he truSt 

relationship "N/50lcrelgnt}. 

Our ..... l:alionship with the Unit~-d StatC'S is l\ trust relationship. but it is first and 

foremost 11 trepty relptionship. ~d on the Treat} of 1868, II is a relationship bet .... 'CCn 

so'crc:ign Mtions, 00 a gO\·Cl'TUllt.'ot-to-lI.0lemmcnt basis, So,'cn:ign oations are obligatc<i 

b} la" to honor and carry out their promises and commitments. llie trust rcsponsibilit} of 

!he United Stat~'S is ~ch a commitment. based on the promises of our Treat} and upon our 

long histoT) "ith the United States. The Oglala SiolL,( Tribe's tn:&t} relationship "'ith the 

United States inclu<k"S the recognition of our inherent ri!;ht of l>Clf-dewnniJW.ion anJ other 

human rights Ill> SCt out in the L.N. Occlarnlion on the Ril/.hts of IndiilC'"'Ous Peoples. 

The trust relationship has old TOOlS in the idea of Ilhite IIIcial superiority. and it was 

once thought to mean thal the Indian trust bcllCficiary "lIS incompeltl'1l or unfit. SUI IhtSC 

ideas of incompetence. dependenc} on the: ledcnIJ ~ncmmcnt.. and unilatcrnl power on the 

part of lhe !nIStn: hall: 00'" bttn moql) l:tid aside. l1w old ~ision of ll'UStces.hip is nol III 

all ",nat the OWaJa SiolL'( Tribc mcal}) ",h.:n "'''' speal.. ofntrw.t relationship. We ~ not 

incompetent. of ~oUl'Sl:. We focw. i""t"ad on another aspc.:1 of the lrust relationship - the 

promiSCll ofthc federal gon'mm"nllo pn.)vide assistarH.'t' nnd 10 pro1<"<:1 ~ and our lands and 

our l'CMlWl:cs. 

The UN Dedaration on the Right$ of lndigeoou.<; Peoples is an excellent L'lIidc thai 

Congress nnd the Administration should look to for mainlaining and strengthening the lrust 

relationship "The l"N Declanuion is $upportctl by the Uniled States and by a consensus of 

all the countrie:. of the ",orld. Tbc Declaration contains a numiter off'l'Ovisions tllal are lery 

n:1e~antto the truSI relationship and 10 our g<l\cmment-to-JIO\emmcnt l't'lationship. 

"The [),."dor~lion affim.s a pammounl rule that is often forgOllcn by Congrt'Slllllld the 

other brnnchl'1 of Ih~ federal lI.Ol('mmel1l that ··lndigo;'ool./s peoples nal'c the right IU the 

recognition, ob$cnWl(:c and ~'Tlfo«:~'mcnt of t .... 'lIties. agreements WId olher constructive 

alT3J1gements conclu(kd "ith States .. ,and 10 hal'c StalC':!l hooour and respecl such trC3tics. 

argrc:cmcnUi and OIhcr COTWructllC iUTl\nll.cm<'nts. [AMidc 371 ThIs obligation to respect 

and ml"ortt the promises and agrctmcnb of OUT Tn:aI} is the htan oflhc.· truSt relationship 

n.c Dedaration also proclaim ... our inherent rights of self-detcnnimtion IlI1d 

autonomy. This is a clear a4'kno",ledgcmcnt of the SO~~'TC"i'\ty of OUT tribal govcmm~'TlIS. 

In addition 10 declaring thc right of self-determination. the Declaration also Stalo;'S Iltal 
146


517h4.eps

"Indigcoow. peoples. in cl<etl:i~ing lheir right 10 self-dc:lCrminlilion. have the righl 10 

autonom) Of' self-government in Inaner'S Tl:laling 10 their internal and local affairs. 11$ mil as 

ways and lDCID5 for financing IheirJIUlonomolL) tundioos. " IAnick 4\ This article poinu 

out thai .... -e not on]) h:: .. e the kgal right 10 govern our o ..... n aff,in;, but .... ~ have, ripllO 

financial support from the fo:daal go\emmmt for C8n)'ing OUt ~ go\TmIT1CTlt funclions. 

This is just one of many pro\ isions in the Declaration that swe tNu the gO\'cmmmt of the 

CO\rIl!ty has obliSaliOll$to pro\ide lina!lCial and o:her assiS\.WICe to ino,ligenous peoples such 

as the Oglala Sioul< Tribe. 

Anoli1cT pro\'i~ion thai. declar~"lI rillhu H'tv similar 10 the lrust responsibility of the 

United States is lhe follo .... ing JlIII1Igruph from Anide 11: '-StaleS shall take effecl;\'c 

mcasures and, .... here appropriate, speci/ll mea5U:CS to mstm: continuina impro\emmt of 

their findigenous peoples'l economic and social conditions. l'attirular aucntion shall be 

paid to the rights and ~ial need~ of indi¥enous elders. ..... omrn. }outh.. children :md 

penons ..... ith disabilitics.- Anide 24 pro\ides that indigenous peoples hne a right 10 lhe 

highest attaiJ'lablc SWldard of ph)'sical IlIld mmw health. and that the country (the federul 

go\'cmmmt) mlll;t do .... hot is ne«SSUI'} 10 achieve that standard. Anicle 39 declares a right 

to filUll1Cial and lechnkal assistancc Ihnt i~ \cry similar 10 one aspect nf the United SIaICS' 

truSt obliSJtioll$. It declares. ndi8enous peopks ha\'C lhe right 10 ha\C access 10 financial 

and technical ~ from Ihc: Suuc: and tt.roush imcmalioral cooptTatton, {OC' the 

enjoyment of the rigllts cootained in \his Da.:laratlon.-

Anide 8 of the Dcclarnlion sets important staMar.ilJ for the prott.'Clion ofindigmous 

proples by the countril"S .... hen: lhey:tn: located.:IJId \his is anothcT important aspect of the 

trust ",llltionship. Countrics are obligall-d. among other \hings, to provide cffecti,c 

mech:anism~ for pre"cnting and for redn:ssing actions that would dcpri\'c \ht.'IIl of tllt-ir 

integrity as distinct Jl<,'()ples. dcpO\c them (If !h.";r cultural "a!III:S, dispossess them from 

their lands. or subject them to fon:-cd IISMmilation. The obliplion to protect tribe, from 

harm is Cl(lcns'\'e and is described in detail in the Dedanuion_ 

Uke .... ;se, thc Declaration usa the cooccpt of In."(, pnor, and mfonncd eOl1SCnt as a 

standard for determining ",hen indigenous peoples haw !agreed 10 some action affect,", 

them or their ri!;ht~ or have tal.:n ~n1C )tcp 10 pennit II$(: of their lands or resources. This 

high slWldnrd is one that should be adoptl .... b} the United Stutts ns tru~tcc, in keeping ..... ith 

the high fidociary standards thatthc United States is obliged to obscr-.c. 

Tribes an: not all the SJI'llI.", and tribes Iui\c different needs and desires as regan:ls 

their relationship ",;th the United States.. The precise natme (If the lrust relationship ..... IIJ 

\"3r)' somev.hat from tribe to tribe, depending on their Itcat} ~IS. on their economic 

needs, and on the ~s and choic~ aJopled by catb $O\'ereign tribe. NC'\'CrtheJcss. the 

fundamental tN$! obligations and n:~pon~ibihtic5 of the UnilN Stato:s remain IInd'lllllgtd 

and available 10 all tribes. With this in mind, we believe it may be useful 10 cOll!lidcr 
147


517h5.eps

"hcmeT ,olumary tribal agrecm~'1lh "it~ the l!nittd SUlk'S couLd ~t~~then. ~Larif~ and 

boLslcr the lru~t rdation,mip. Such agn:.:mcntSo. on a tribe-b)-tribc: basis. ~"(luld mak~ the 

\(US! rel;ltion~ip more delinil .... more c:n!orccabk. and more clear. and such agn:<"mcnts 

might make th~ tnlSl relat;on~h;p more ,uitable fur noxds of tribo.~ "ith diff{"fCllt TIt"6:.b and 

dcsi~. Tribe!! <hould havc an option to ma.lc: an a~nl or 001. ]'1,:0 ao;hcrse 

CCIflStqurocC5 ~uld oome from oot making 1111 lIgrttlllC"llt. The trusl relationship and the 

federn;1 go\cmmcn!"s trust responsibilily must l\."TIl:lin tuldiminishN ",hclher there is an 

agreement 01" not We would "'unt tu sludy 'cry carefull) WI) Icgislation aimed at 

aUlhorizmg SllCh agn.:emcnts tu be sure llIat lhen: "uuld be no diminishment of the trust 

responsibility lhat b so cnticallo tn." ~laJa Si"ux Tribe. 

I also ":Ull to taic Ihis opportunil) 10 urg~ thai Cnngre .... !>ring to WI ~nd. as soon as 

possible. lhe Office of the Special Trusl .. -.: This Officc h:b I"Il)tl>ccn a success. It should bc: 

ended. """ i", functions returJl<'d to I'w;- alA and otncr agen<.:ics "hkh held tm.-se 

n$ponsibil;ti~'S I'll:' iou~I}. 

I· ina!I). k1 me summ;lri7.C "~T) bricIl) n number of olhcr concerns. There an: man) 

things th.:ll could ;tnd should be done 10 irnprmc tho: "ay t~c fcdemL gon-mment carries out 

and fultills its trust obligations. Congress should creau: cleM rulc5 and legal slMdatds 

go\cming the truSt relationship. 1\~tumll~ Congl\.'S\ "'ill WWlt to consider the 

recommendation, that lhe ~1I1 ("·"IfIlmiss.ion on Indian Trust Adminisuazion and 

Refonn "'ill submit in a link moo: than a >,'":&r. lbo: Oglala Sioux lribc intends to maLe 

reoommc-nd:uions 10 thai. Commiso.ion. In particular. we bclj,:\e Congn:s:; shouk! eonsi ..... r 

~nxting II Trusl Dutie:. Act that ",ould .pedr) in !kill;! the J..-l!al duties oftlic Lniled Stales 

when il lICtS It.> truSI~-e on behalf of a tribe and "h':I1C\.:r it carri.:s out its lrust 

n:spon~ibililies ~ucb as the dUly of lo)ah~. Ih~' duty 10 avoid confliclS of interest. the duly 

10 PTO\ idc 1111 lI~counting. the dUI) 10 lICl in 3 timcl} falohion. lho: dUI) 10 infonn and consult 

with a tribe' "hen it <.Ieals "ith the tribe's trusl propc:n). Ihe dut)' to act $()Iel~ in the interesl 

of the bendicial) (the tribe). ;md otMr duties. Tribc~ toda) are ollen DOl able 10 go to coun 

when Ihe lrus1C1,:. the rC"daal gul<!"mmen. lilils in it:s lrust rcsponsibiLitk-l; and harms lhe 

tribe. Ik<:a~ lhe kgal n:mcd,,: .. 1I1nillbie 10 lribe!! are "cry inad..."'quate. Congress. in 

consultation with tribes. ought 10 1."0rl\."\:1 this long-sunding unlaimess. 

Thank )UU lur Ihis oppol1un;ty 10 c",nmunicalc lhe concerns and recommendations 

of the Oglala Sioux Tribe on this cnomlOllI>ly imp<>nant subjcct. 
148


517i1.eps

Re!;oltttitltl! JJt"Jltl-25-11 

~ thc:0wat-~ ~ $e..~ke-.>!Tn1m1 CtlM:nmln'S-E"'~ll 

\CPl.'CA} ¥' ~ <Jfthi. !lh':e'.e.I C'".()aks ,..m ~~ <Of tlR: 16 -

~ltiUan ~amll'Jatj,..'WlS ~p:y'n''''4!t'''' wlU;. fue 

tttl:tttl:4~ tt.at=~ t11cGreatP1aillB~n r,ifueB'.ll'= d 

U1dl.."'W ilfiiUrs: and 

WHER:BAS, tlw (.UreatPJa:h,sTrillru Cbanlllav,'3 MoodatiOll "Niit! fur.m~o:\ to promote ~ CG/xU1JQU; :rnterests of the q[)vm'~jgn, Tribes and Nat/aM (llLd thi::1r members 

c!tl:le Great Plains:Reglon wW~1tcompri3es the -'lta,lle$: <liNQrth Dakota, 

~h. Da!roia. Ne.bta"lW'; ;Md 

~ ~u-gh~~£a.f.ass. ~~~t!omlk""<mdwWl.' 

~---""~EO;,'tin'G~)i:tW~~ ..... tl~W 

pmrect IndJ<w.~; F<J'(~ theIl' willi ClO.ctain 1totJds snd iie<:V1ces, 

g'lX!l.t';ll'It'ee the rlgh~ m'I':r,iOOl SI"$govemmwt, ~t\fll~ the. ·protectiolllil.rttl 

$fjfcty (:If tribal members, Md )?J:Omote the 'liabll.:ty of lWlian reservati<>ns 

attn )';wfu1 as permanent MW:llmds fur tribe~; and 

WHEltEA.C!, tho 13u,"<laU; nf Indian .I)..IlmWI:< W<i.B establlshed to tmpJ'\lwent these co\"e ttJ1tt 

lWdt\'f!Myob1lgatlml5_nfUwl Htrl/ro: states, and -

WHEII$!'l$, the. BfA MiMi®. ~t ~ ".i};)tm.'=toe f1oz-qu.::tWy ~fllfa fn ~ 

-'" QPPOrtrm'lg, ,..,-,a: to cm7U out;'he =~ 1& pn7'.tlct wd. ~ t!ie tro.."t 
149


517i2.eps

WHEREAS, the Bureau of Indian Aifuirs la, and has been since tts \n~ptkm, the 

prtmaty federal agenC"j wl11cn 111 ultimately J:'espomdbl.e fOl" providing the 

'I'tIbc<i with a[leqll3b.: eciu.caIion. law enfor=mcni, b1.uial. tnbal 

govenuuen(al asl!lstmce. land a;.ld nanrra.l. =mttW oohan=nrent.md 

vroteciion, :rocial services and many of their other IDe>;t critic;illy ncecti.1 

servle<;s provided t-o ilm Trtues under IhcirT:reEl.tleI$; and 

WHEREAS, these mOnies;md services ure not proVided by the IDA IJ~ tho United 

States a~ gratuitous grants, they nre instead entttlemeuw which the 

T'J.jb~s afthe Great PIa!.ns Regi.On negotiated for in treaties fur the direct 

e1\...-,llange of the land and other rights tlrey were futcecl to gtve up :in thclr 

Tre~und 

~, this sepaato:s the~m..'\progn~ms and se!'liC"...s fnnn tbecl:h=fcderaIly 

funded programs Jmd S\:I"llc,::s which are eum:ntly inclu<led in the 

dJ=t10nary budget ufthe tlnlted States; and 

WHEJ.UI1AS, while all of the f~dlmll agencies afthe United States have a treaty and 

t.ru$l: responsibility to the 'l'ribes of the Great Plains ~.gtQn, only 'the 

Bureau ofIndlBIl Affairs Is designed, structured, 8toa.ffed and funded in the 

tnamtocr necessary to insure the provision of these {TUst and treaty based 

services on a C<lnstant,. time!,}' aud :reoCcurring basb; and 

WHERltAS, the Bureau oHndian Af!i'>trs budget has never been adequate to mert i.h.e 

agenr:ys obiigatloos a:od1t has actually Iiillen even further treMnd the 

w;lual need ovc.rfue cou..-se cfthe lasi -ren year; and 

WHEREAS. rnthlll'ihan increasing the Bureau or Indlan Mfaim bu.dget to address tbls 

~1wrtlhll, -the Departmmt 0:( lntnrlor (001), IndianAiTairs, has started movJ::ug 

nmnyaf 

Its ~e.rv.ice~ to ~entrallorntlo.n6 which are ai il great 11Istance from the Indian 

'lrlPes and people that they ;;erve, malWlg it difficult fur the TribeS' to 

work d1rect.'y with these dNisions at the locall~ aud 

WHERli'AS, the DOl, Indian MaIl'S, has also "!l~gun to transkr ll'W.lY core suwrt setVlce.'> 

out Qf tire E1A ami Into QflY...!' dW.lSlons in ,nteriOr-and ilVlm ro other federal 

ag~Ilcl.<;!a: and 

WHEREAS, l;I~('ll,u'>C the DOI, Indlan.AiWrs & Bureau of IndlalJ. Atfajrs and the preset'!t aWl 

post . 

Admini~tmtiOIlS have faJled to request thelunds requirPo ta meet the 

U:t:lited Statos' trust respaJ:l3lbillties in these = iw.;/!$, the Trlbes have 
150


517i3.eps

ooen furGed to seek =- tWer~Wg ~'.Ilfthetr ~ {illl,lffigfoc 

:aW~~ =, mad[<. ~\'f~~ hnm.~.~a1ra:nd'!l. ~.,f 

otbI.ot' ~based pl~I>S ttlwugh. e.;.mpetttive Sl~lh from cfue!::f&!.~ 

agtl1t(;JJ;l':;; and 

WHEREAS, tht>1 moverpent away frotJl i!d~u~ funding f¢1' tl'a) aX/!. and towards the TrJ.b<l'~ need to rely on ~Ql:\lPf.ltitiVG grants from at.b.e:r Jblcral agencies, haS 

l.ffi ta '"' d&creru;e in the $&J;"II~I:"lil PNl'1ded, and itl!.\W tHl<:termlnOO th~. 

Tr~'lI 'bas!e ability to ~ ~he":J: programs; anti 

~, the; trtbBl ~.d BlA ~;mw;:moot lllfuctoo bytb.!$. clJ~ ill filde:m1 pon~ 

n.."\':. ,-:.:lI."fl ~p>o~ Ilke !aw~-cmomt, tdu<'!ilion" . 

~tfQf1 ar..d 

~M:al ~M"",ol,..."",, whkh ~I!d.li .'.Itable and rciil!b1e fr:~r,rt bud/;et ill ~er to 

p1'IJPllrly operate .Lar.ge Txih&l Governments: Mod 

WHEREAS, tljl! 'J;bb:;\l Natlons most a/:te~t.!l4 a:re Ille Large1'rtl.lell whQ operate lElTge 

gO"l'el:ll\)l€nta. much lilw $jntm.l wttb large popula!.lOflll IJUmerous 

()O);t(rnt~nities, extenSi .... -e J.a.rK1 ~JIm~ numerous Trlb~~ i.e. Law 

cnfQree.mw.t Depa..rtmeut$, SclmCll Sy ... !ems,. 1"'rn!::i$p(l;1"MlmJ. D<=parl:menttl, 

.h1.mct:reas..t:>fH~g ~ ~t~ ~ms., 10k;.. w.l.d. 

~<:Oll1~g;a.k.ace~*~"b~"fur..m-get1l('iverrm=:ts=d 

~ Nafu..'lS""I'i'h1) slg::ltld.'~.In g=J futili.~ ill1d 

WHEREAS, 1mJ.[lt" tAG BlA f1lllding wtu!l/l, \l1 available on the fl:Wt <lay Qf I:he fiscal yell):', 

thft t\,to.dJ.ng COming from otheI' Ji:q,eral agencies i~ ottt'Xl :rlC.lt tpade availaOll;! 

l,m'i;.l fuEJ third or fourth quart"" ortb~ fiscal year, {OfCiJ.'Ig trlOal 

g{\v~tmn'lllts to delay Ut\pOl'tlmt pwcurements Mil ~ theu Jay off staff. 

and (Wl;n. go mit> debt iJ1.. (oI:ll.¢r 00. ~ thclr cm-e 1;t!!!1.ty based pmgrnms 9pe!~ting; and 

~,alltri:tiili.ls~5.agrnN~6latitmmfuef~gm.~~h-=t 

t>aSp.O!l$1:\lhl:i'; a;:-;.§ 

WHEREAS, mtllWly all of these c.bl'!11f!;e~ in f~deml policy hlWtl come apout wlthOllt 

atlY .....ul tribal consultatim'J, a)).oj: this fallure to COl"I~l)1t. violates the stated 

poJl,W QftM. Un:lI:ed Stat(\.',;, m ~mrtk:uIar ExecutIVe Oul,)\" 13175 and the. 

~(t polley oflntenor, l\ldtru.Alfuirs and the Bu.rea\j Qf J'Dd!an lIffairs: ~d 

~ m."ffi.y ..n0te~ f~<:t<ll ~1'~Ji$l")& m..ve-und::Intined lIl'"Jnn wfurer.ce, ~1 

~:lit.,tl!m, trfm31~..gp~ andj'eu~P4'rrll:!ffi G(We~ 

~. ~ti .... J}'fuese de~ l"jr£"iI"lwend resu"itofd!:t:~~fuc role <If th\'ll:11~~eau ofIndl.w:l Afi"atr!l, 

THE~ I'i»lJ X'J! RESOLVED, that 11w '):'rfbes oHhc Groot .f1!d111!1 T.nbal Chairman'lI 

Associatloll caJllXP()U !he Dbama Admftl.~tlutiQll and the COtlgI.'i;I$IJ Qf th,e United Stat('~ ta crase this Ulll'\WUlded dismantllng oUbe Bu~ml.ll of Indian A"ffal:m, x<:a,(fI:rm tllat the BtiM't~\ 
151

Æ


517i4.eps

ofrnlfllm A~ pm...-=Y=~to- ~m.e tbe~~,.. ",rtltnm.lnits hud.get 

~,r<'.st~e ~Jm\tlonandl1)w.!iIDd~uua1 cmrt:roL w,=Ui,,~q 

~sftrlJl.1j' of ~ Unlkd 5t.:atm;. and saeki!le fw.~ requ~d 'In med the 'llib::>~ actw:J 

needs 111 e»ch "ftl!~ areas, 

NOW THER'tI'OlUIl BE rr FlNAIJ..:Y OSOLVED that tbis reoolu1:lQn ~hall be the pDllC;1' uf 

the GI'1!S.t Plains Tribal Cb.~tr:Q1an's AsSCIc.latJ.on unUl otlle(l.vise arn=ded or 

Xf".sQnri:ed, 

C~ 

Thi&refI()]u:tton WM moacted Itt attuly.elUkdmeeUng.mth'l1' ~tl"1ams~ 

Chainwm.'", Ass~eia,tionhcl.d at Rl:o.:pi4 City, SotdhDakota 1m Om(>bu 2S. 20111lt 

whtch a 1J.l1Or\.tUI. WlI& present, with 1:1 Jl;Qflwlll'l'S voting in (avql'. Q IIlembern oppoG*!i.l. •• 9: 

lDcwbers IlQt ~~g, and.§... members Dot prnsent. 

Dated tbis ,_~ d\\Y of October, 2(ll;t.