6.4 Trust relationship with federal government

The trust relationship between Native American tribes and the U.S. government is a complex legal and historical framework. It stems from centuries of interactions, treaties, and court decisions that have shaped federal Indian law and policy.

This relationship impacts tribal sovereignty, federal responsibilities, and contemporary Native American affairs. Key elements include land management, resource protection, healthcare provision, and economic development support for tribes.

Origins of trust relationship

• Trust relationship between Native American tribes and the U.S. federal government stems from historical interactions and legal precedents
• Shaped the foundation for federal Indian law and policy, impacting tribal sovereignty and federal responsibilities
• Continues to influence contemporary Native American affairs and governance structures

Marshall trilogy cases

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• Johnson v. M'Intosh (1823) established the doctrine of discovery, limiting tribal land rights
• Cherokee Nation v. Georgia (1831) defined tribes as "domestic dependent nations"
• Worcester v. Georgia (1832) affirmed tribal sovereignty and limited state jurisdiction on tribal lands
• These cases collectively formed the legal basis for the trust relationship and federal Indian law

Indian Reorganization Act

• Passed in 1934, also known as the Wheeler-Howard Act
• Ended the allotment policy and encouraged tribal self-governance
• Allowed tribes to adopt constitutions and establish formal tribal governments
• Provided a mechanism for restoring tribal land bases through land acquisition programs

Federal recognition process

• Formal process for the U.S. government to acknowledge a tribe's sovereign status
• Involves meeting seven mandatory criteria, including historical continuity and political authority
• Recognition grants access to federal services and protection under the trust relationship
• Can occur through administrative process, congressional action, or court decisions

Legal basis of trust doctrine

• Trust doctrine forms the legal foundation for the special relationship between tribes and the federal government
• Rooted in historical treaties, court decisions, and legislative actions
• Shapes the federal government's fiduciary responsibilities to Native American tribes

Constitutional foundations

• Commerce Clause (Article I, Section 8) grants Congress authority to regulate commerce with Indian tribes
• Treaty Clause (Article II, Section 2) recognizes tribes as sovereign entities capable of making treaties
• Supremacy Clause (Article VI) establishes federal primacy in Indian affairs over state laws

Treaty obligations

• Over 370 treaties signed between tribes and the U.S. government from 1778 to 1871
• Treaties often included promises of land, resources, and services in exchange for peace and land cessions
• Many treaty obligations remain in effect and form the basis for ongoing federal responsibilities
• Supreme Court has held that treaties should be interpreted as tribes would have understood them at the time of signing

Federal statutes

• Indian Appropriations Act of 1871 ended treaty-making but affirmed existing treaty obligations
• General Allotment Act of 1887 (Dawes Act) impacted land ownership and trust status
• Indian Citizenship Act of 1924 granted U.S. citizenship to all Native Americans
• Indian Child Welfare Act of 1978 established standards for placement of Native American children in foster or adoptive homes

Federal trust responsibilities

• Federal government assumes fiduciary duties to protect tribal assets and promote tribal well-being
• Trust responsibilities extend across various aspects of tribal life and governance
• Obligations stem from treaties, statutes, and court decisions interpreting the trust relationship

Land management

• Federal government holds approximately 56 million acres of land in trust for tribes and individual Indians
• Bureau of Indian Affairs (BIA) responsible for managing trust lands and resources
• Includes leasing tribal lands for economic development (mining, forestry, agriculture)
• Requires environmental assessments and protection of cultural resources on trust lands

Resource protection

• Federal agencies tasked with safeguarding tribal natural resources (water, minerals, timber)
• Water rights protection, including quantification of reserved water rights (Winters Doctrine)
• Preservation of hunting and fishing rights on and off reservation lands
• Management of subsurface mineral rights on trust lands

Economic development

• Providing technical assistance for tribal business ventures and economic planning
• Administering loan programs for tribal enterprises and individual Indian entrepreneurs
• Supporting tribal tourism initiatives and cultural preservation efforts
• Facilitating tribal access to federal contracting and procurement opportunities

Healthcare provision

• Indian Health Service (IHS) responsible for providing healthcare to federally recognized tribes
• Services include primary care, dental care, and behavioral health programs
• Operates hospitals, health centers, and clinics on reservations and in urban areas
• Collaborates with tribes to address health disparities and promote community wellness programs

Tribal sovereignty vs federal oversight

• Tension exists between tribal self-governance and federal trust responsibilities
• Balance between tribal autonomy and federal protection evolves through policy changes and court decisions
• Ongoing debate over the extent of tribal authority and federal oversight in Indian Country

Self-determination policy

• Indian Self-Determination and Education Assistance Act of 1975 allowed tribes to contract federal services
• Tribal self-governance programs enable tribes to assume control of federal programs
• Promotes tribal decision-making in areas such as education, law enforcement, and social services
• Aims to strengthen tribal governments and reduce federal paternalism

Limits on tribal authority

• Criminal jurisdiction limitations established by Major Crimes Act of 1885 and Public Law 280
• Civil jurisdiction constraints, particularly over non-Indians on reservation lands (Montana v. United States, 1981)
• Restrictions on tribal taxation authority, especially regarding non-Indian businesses on reservations
• Limitations on tribal court jurisdiction over certain cases involving non-Indians

Federal plenary power

• Congress possesses broad authority to legislate on Indian affairs
• Allows for unilateral abrogation of treaties and alteration of tribal status
• Supreme Court has upheld federal power to define tribal sovereignty (United States v. Kagama, 1886)
• Tension between plenary power doctrine and principles of tribal self-determination

Trust land system

• Central component of the federal-tribal trust relationship
• Involves complex legal and administrative processes for managing Indian lands
• Impacts tribal economic development, jurisdiction, and cultural preservation efforts

Reservation establishment

• Created through treaties, executive orders, or congressional acts
• Intended to provide a permanent homeland for tribes
• Varied in size and quality of land, often resulting from forced relocation
• Many reservations fragmented due to subsequent federal policies (allotment)

Allotment era effects

• General Allotment Act of 1887 (Dawes Act) divided communal tribal lands into individual parcels
• Resulted in significant loss of Indian land to non-Indian ownership
• Created checkerboard pattern of land ownership on many reservations
• Led to fractionated ownership of allotted parcels through inheritance over generations

Land-into-trust process

• Allows tribes or individual Indians to petition the Secretary of Interior to take land into trust status
• Removes land from state and local jurisdiction, placing it under federal and tribal authority
• Criteria for approval include need for additional land, proposed use, and impact on state/local governments
• Process can be contentious, especially for off-reservation acquisitions or gaming purposes

Financial aspects of trust relationship

• Federal government manages significant financial resources on behalf of tribes and individual Indians
• Involves complex systems of accounting, distribution, and oversight
• Historical mismanagement has led to major litigation and reform efforts

Federal funding obligations

• Annual appropriations for Indian programs across various federal agencies
• Includes funding for education, healthcare, housing, and economic development
• Some funding guaranteed by treaties or statutes, while other programs are discretionary
• Debates over adequacy of funding levels to meet trust responsibilities

Tribal resource revenue management

• Federal government responsible for collecting and distributing revenues from tribal natural resources
• Includes royalties from oil, gas, and mineral extraction on trust lands
• Office of Natural Resources Revenue manages accounting and distribution of funds
• Tribes increasingly taking on direct management of resource revenues through self-governance agreements

Mismanagement and litigation

• Cobell v. Salazar class action lawsuit over mismanagement of Individual Indian Money accounts
• Resulted in $3.4 billion settlement in 2009 after 13 years of litigation
• Tribal Trust Accounting and Management lawsuits filed by numerous tribes
• Led to creation of Office of Special Trustee for American Indians to improve trust asset management

Contemporary trust issues

• Trust relationship continues to evolve, addressing new challenges and opportunities
• Involves balancing tribal sovereignty, federal responsibilities, and changing societal needs
• Requires ongoing negotiation and adaptation of policies and practices

Environmental protection

• Tribal environmental self-determination programs under EPA Indian Policy
• Challenges in addressing climate change impacts on tribal lands and resources
• Conflicts over energy development projects affecting tribal territories (Dakota Access Pipeline)
• Efforts to incorporate traditional ecological knowledge into environmental management

Gaming regulation

• Indian Gaming Regulatory Act of 1988 established framework for tribal gaming operations
• Requires tribal-state compacts for Class III gaming (casino-style)
• National Indian Gaming Commission provides federal oversight and regulation
• Debates over off-reservation gaming and revenue sharing agreements with states

Jurisdictional conflicts

• Complex interplay of tribal, federal, and state jurisdiction in Indian Country
• Public Law 280 states have additional criminal and civil jurisdiction on some reservations
• Violence Against Women Act reauthorization (2013) expanded tribal jurisdiction over non-Indian domestic violence offenders
• Ongoing issues with law enforcement and prosecution of crimes in Indian Country

Trust relationship reform efforts

• Initiatives to address shortcomings and modernize the federal-tribal relationship
• Aimed at enhancing tribal self-governance and improving federal trust management
• Involves legislative, administrative, and tribal-led efforts for systemic change

Self-governance compacts

• Tribal Self-Governance Program allows tribes to assume control of federal programs
• Expands on self-determination contracts, providing greater flexibility in program administration
• Includes negotiated funding agreements and reduced federal oversight
• Over 270 tribes participating in self-governance compacts as of 2021

HEARTH Act

• Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012
• Allows tribes to approve leases of tribal trust lands without BIA approval
• Tribes must develop their own leasing regulations, subject to Secretary of Interior approval
• Aims to streamline economic development on tribal lands and enhance tribal control

Cobell settlement impact

• Created $1.9 billion Trust Land Consolidation Program to address fractionated land ownership
• Established Indian Education Scholarship Fund to support Native American students
• Led to reforms in trust fund management and accounting practices
• Spurred additional tribal trust settlements and management improvements

Future of federal-tribal relations

• Ongoing evolution of the trust relationship to meet contemporary needs and aspirations
• Efforts to strengthen tribal sovereignty while maintaining federal trust responsibilities
• Focus on addressing historical injustices and promoting tribal self-sufficiency

Calls for trust modernization

• Proposals to update trust management systems and policies
• Exploration of new models for federal-tribal partnerships and resource management
• Discussions on redefining trust responsibilities in light of tribal capacity and self-governance
• Consideration of legislative reforms to clarify and strengthen the trust relationship

Tribal capacity building

• Initiatives to enhance tribal governance structures and administrative capabilities
• Investment in tribal education and professional development programs
• Support for tribal justice systems and law enforcement capacity
• Efforts to preserve and revitalize Native languages and cultural practices

Sovereignty affirmation efforts

• Push for greater recognition of tribal sovereignty in federal policy and law
• Advocacy for expanded tribal jurisdiction and authority over reservation affairs
• Efforts to strengthen government-to-government consultation processes
• Exploration of international frameworks (UN Declaration on the Rights of Indigenous Peoples) to support tribal rights