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d’Errico: The sands of federal ‘trust’

The recent Supreme Court decision denying compensation for underpaid coal extraction from Navajo lands under federally approved leases ruled the Navajo Nation does not have a “sound basis for its breach-of-trust lawsuit against the Federal Government.” How can this be? The “trust doctrine” has been a cornerstone of federal Indian law for nearly 200 years. Is it no longer viable?

The court said the Navajo case was controlled by two earlier decisions involving the Quinault Nation, wherein federal Indian “trust” was greatly restricted. The first Quinault case, U.S. v. Mitchell I (1980), ruled that the “trust doctrine” inherent in the 1887 General Allotment Act, which took all the Quinault land (as well as all other Indian lands) was a “limited trust. … that does not impose any duty upon the Government.”

Treaties promise “protection” and compensation to Indian nations in exchange for ceded lands. The General Allotment Act, however, aimed at “breaking up, as rapidly as possible, of all the tribal organizations,” as stated in the Congressional Record at the time. Nevertheless, the court says the U.S. has no fiduciary duty to nations that were broken up and restricted or removed from their homelands.

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mso-bidi-theme-font:minor-bidi;} The ‘trust doctrine’ has become a way of denying the existence of an actual trust. Now you see it, now you don’t.




The second Quinault case, Mitchell II (1983), did find a fiduciary duty on the part of the U.S., based on a separate network of laws and regulations that provide “All of the necessary elements of a common-law trust. …: a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, and funds).”

Thus, under current law, the federal Indian “trust doctrine” is deemed a “bare trust,” empowering the U.S. to claim title to Indian lands without any corresponding fiduciary responsibility. As the dissenting justices in Mitchell I wrote, this means the federal Indian “trust,” “is not a trust as that term is commonly understood.” The “trust doctrine” has become a way of denying the existence of an actual trust. Now you see it, now you don’t.

The federal Indian “trust doctrine” was built on sand from the start. It is not a firm foundation for Indian sovereignty. The time has come to be clear about this and to look for alternatives to articulate the relationship between Native nations and the U.S.

As initially stated, the “trust doctrine” was only a suggestion, an analogy. Read the language of Cherokee Nation v. Georgia (1831) carefully. Notice the qualifying words and phrases: “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. Their relation to the United States resembles that of a ward to his guardian.”

This analogy served the needs of the United States as it battled the states for control of Indian lands. It allowed the federal government to claim a “special relationship” with Indian nations that excluded the states. It enhanced the legal position of the federalists, but denied the Cherokee (and all other Indian nations) recognition of their full sovereign status. In other words, the original “trust doctrine” was a vehicle for undermining Indian sovereignty.

The deeper basis of the “trust doctrine” was a pretense, acknowledged as such by the court: that Christian “discovery” of Indians is the same as conquest and ownership of Indian lands. Again, read the language carefully. Notice the qualifying words and phrases that show how the court in Johnson v. McIntosh (1823) was manufacturing a new doctrine to suit the purposes of the United States and to deny the full sovereignty of Native nations:

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mso-bidi-theme-font:minor-bidi;} This is an appropriate time to re-examine the relationship between Native nations and the U.S., not only because the Supreme Court has gutted the ‘trust doctrine.’

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.

Though many people have relied on the federal “trust doctrine” as a way of explaining Native sovereignty, the recent Navajo coal case and the Quinault cases merely state the obvious to those who have studied the doctrine: Federal Indian “trust” law is not to be trusted. We have to articulate Native sovereignty in new ways if we are actually going to build Native nations on a firm basis.

This is an appropriate time to re-examine the relationship between Native nations and the U.S.: the Supreme Court has gutted the trust doctrine. Political and economic circumstances have greatly changed over the years the doctrine has been litigated. Native nations have valuable resources in a globalized economy. New international political standards and forums exist. These facts point to a need to revisit the basic legal theory of federal Indian law.

Our review of the “trust doctrine” leads to certain questions: What is the path not taken in U.S. Indian law and policy? How may we follow that path to build a firm foundation for Indigenous sovereignty and self-determination on the basis of nationhood and the original free existence of Indian nations and peoples? These are questions for another column.


Peter d’Errico is a consulting attorney on indigenous issues. He was a staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services from 1968 to 1970 and taught legal studies at University of Massachusetts-Amherst for three decades.