2.4 Evolution of the Trust Relationship

The trust relationship between the U.S. government and Native American tribes is a complex legal framework rooted in history. It stems from early Supreme Court cases that defined tribes as "domestic dependent nations" and established federal responsibilities to protect tribal interests.

This relationship has evolved over time, shaping tribal sovereignty and rights. Key concepts include the federal government's plenary power over Native affairs, its fiduciary duty to tribes, and the recognition of tribal self-governance. Understanding these foundations is crucial for grasping current Native American law.

Foundational Cases and Concepts

Trust Doctrine and Marshall Trilogy

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• Trust doctrine establishes the federal government's responsibility to protect tribal nations and their resources
• Originated from the Marshall Trilogy, a series of Supreme Court cases in the early 19th century that defined the legal relationship between the U.S. government and Native American tribes
• Cherokee Nation v. Georgia (1831) ruled that tribes are "domestic dependent nations" with a relationship to the U.S. resembling that of a "ward to his guardian"
• Worcester v. Georgia (1832) affirmed tribal sovereignty, stating that tribes are distinct political communities with exclusive authority within their territorial boundaries
• These cases established the federal government's trust responsibility and the principle of tribal sovereignty

Plenary Power and Fiduciary Duty

• Plenary power refers to the federal government's exclusive and broad authority over Native American affairs
• Derived from the Indian Commerce Clause and the Treaty Clause of the U.S. Constitution
• Allows Congress to enact legislation that affects Native American tribes, even if it conflicts with treaty obligations
• Fiduciary duty is the federal government's obligation to act in the best interests of the tribes and manage tribal resources responsibly
• Stems from the trust doctrine and the government's role as a trustee for Native American tribes
• Requires the federal government to protect tribal lands, resources, and rights

Tribal Sovereignty and Rights

Tribal Sovereignty and Federal Recognition

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and manage their internal affairs
• Includes the power to establish tribal governments, create laws, and enforce those laws within tribal jurisdiction
• Federal recognition is the process by which the U.S. government acknowledges the sovereignty and government-to-government relationship with a Native American tribe
• Federally recognized tribes are eligible for certain benefits, services, and protections under federal law (grants, healthcare, education)

Treaty Rights and Canons of Construction

• Treaty rights are the rights and privileges granted to Native American tribes through treaties with the U.S. government
• These rights can include hunting, fishing, gathering, and access to sacred sites on ceded lands
• Indian Commerce Clause (Article I, Section 8, Clause 3 of the U.S. Constitution) grants Congress the power to regulate commerce with Native American tribes
• Canons of construction are principles used by courts to interpret treaties, statutes, and other legal documents related to Native American rights
• Ambiguities in treaties must be resolved in favor of the tribes, as tribes were often at a disadvantage during negotiations due to language barriers and unequal bargaining power

Evolution of Federal Policy

Indian Reorganization Act and Self-Determination

• Indian Reorganization Act (IRA) of 1934, also known as the "Indian New Deal," aimed to restore tribal sovereignty and promote Native American self-government
• Ended the allotment policy, which had resulted in significant loss of tribal land
• Encouraged tribes to adopt constitutions and establish tribal governments
• Self-determination refers to the federal policy of supporting Native American tribes' right to govern themselves and make decisions about their own affairs
• Gained momentum in the 1970s with the passage of the Indian Self-Determination and Education Assistance Act (1975)
• Allows tribes to contract with the federal government to administer programs and services that were previously managed by federal agencies (healthcare, education, social services)

Wardship and Evolving Federal-Tribal Relations

• Wardship is the concept that Native American tribes are under the guardianship and protection of the federal government
• Originated from the Marshall Trilogy and the trust doctrine
• Has been used to justify federal control over Native American affairs and resources
• Federal policies towards Native American tribes have evolved over time, from assimilation and termination to self-determination and government-to-government relations
• Modern federal policy recognizes the inherent sovereignty of tribes and seeks to support tribal self-governance and economic development
• Challenges remain in balancing tribal sovereignty with the federal trust responsibility and addressing the legacy of historical injustices