Yesterday and Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity

Twice in the past quarter century, the Supreme Court has composed a duet of Indian breach of trust decisions that, through dynamic counterpoint, complement each other to produce a reasonably harmonious arrangement. Each of these two judicial movements sets one decision that finds an actionable fiduciary relationship against another decision that rejects trust liability. This pairing of competing strains allows us to sound out the contrast between those claims against the federal government for default in trust responsibility that are redressable in damages and those claims that fail to state a cognizable cause of action and are barred by sovereign immunity. By listening for the variation between successful and unsuccessful passages, as well as appreciating the antiphony of the dissenting opinion in each suite, we can hear the thematic tones which together sound the chords that form an authoritative melody. To fully appreciate the themes that recur throughout the entire overture, the Supreme Court's 2003 performance in United States v. Navajo Nation, 537 U.S. 488 (2003), and United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003), must be heard together with the earlier 1980 and 1983 prelude of United States v. Mitchell ("Mitchell I"), 445 U.S. 535 (1980), and United States v. Mitchell ("Mitchell II"), 463 U.S. 206 (1983). Although the two sets of decisions are presented two decades apart, the Court is reading from much the same score in each recital. At the same time, the more recent pieces add further richness to the music, from which dispositive refrains begin to emerge. Still, the double act of 2003 is not merely a reprise of the past work but adds new bars to the concerto, thereby helping the litigative player to better read the notes for future programs and to choose the right instruments so as to bring his or her playing under the commanding direction of the judicial conductor. The Supreme Court's composition efforts began nearly a quarter-of-a-century ago on a most discordant, even sour, note with its rejection of an Indian breach of trust claim in Mitchell I, an opinion that failed to recognize the power of the pertinent statutory waiver of sovereign immunity and that consequently applied a narrow and constrained reading to the legislation establishing a trust relationship. Fortunately, only three years later, Mitchell II introduced a more uplifting strain of governmental responsibility for management of Indian resources, a coda that better resonated with historical experience and the continuing reality of governmental interaction with the Indian peoples. While the most recent stanzas in Navajo Nation and White Mountain Apache will not appeal to all listeners, the songs emanating from the Court on this occasion ought more to evoke hope than sadness for those advocating a more responsive approach to Indian trust problems. In any event, the Court's most recent rendition provides greater lucidity to the music. Turning then from musical metaphor to plain - or at least ordinary legal-language, the four decisions discussed in this article have much to teach us about the amenability of the United States to suit for money relief and the cognizability of breach of trust claims by Native Americans. The lessons to be drawn from these decisions of yesterday and today may be collected into two categories. First, because the United States has waived sovereign immunity through the Tucker Act and the Indian Tucker Act for monetary claims, the search for a substantive cause of action for damages in another statute does not proceed under the strict rules of construction that otherwise apply to commencement of litigation against the federal government. Moreover, because of the peculiar relationship that has existed between the federal government and Native American populations, a finding of a fiduciary duty by the government toward Indians will be supplemented by the general trust doctrine to infer a right to monetary relief. Second, in determining the circumstances under which the government may be held liable in money under the Indian trust doctrine, certain factors figure centrally in the analysis. These factors include the existence of actual trust language in the pertinent statute, the exercise by the government of plenary control over Native American assets pursuant to either detailed statutory rules for management or by actions in occupying Indian properties, and the countervailing purpose of Congress under certain statutes to promote Indian self-determination by restoring primary authority over resources to the tribes.