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Law professors ask: Is trust still valid?

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PORTLAND, Ore. - Native American law professors meeting in early April in Portland called for the overhaul of U.S. trust responsibility to Indian nations, saying that economic development in Indian country depends on it.

;'Trust is costing tribes a lot, and it doesn't have many benefits. What is the future of trust responsibility? We ought to get rid of it,'' said Kevin Washburn, a Chickasaw professor at the University of Minnesota Law School.

Washburn and a number of other law professors gathered for the Lewis & Clark Law Review Symposium at Lewis and Clark Law School in Portland. The theme of the symposium was ''Indigenous Economic Development: Sustainability, Culture and Business.'' But talk centered on U.S. policies, laws and court decisions that affect Indian nations.

Washburn and others questioned the modern role of trust responsibility.

Federal trust responsibility to Indian nations was not expressed in the U.S. Constitution, he said. It first appears in U.S. Supreme Court Chief Justice John Marshall's decisions in the 1830s. But trust as wielded by federal staffers of various experience levels, of varied efficiency, in a variety of government agencies is not something Indian nations can rely upon, Washburn said.

As they must rely upon it when the National Indian Gaming Commission holds up a tribal casino development for years because it doesn't approve of the financing package. Is the opinion of a mid-level government worker more credible, Washburn asked, than those of elected leaders of Indian nations and their advisers?

''In the Indian context, trust is always 'we are trying to save you from yourself,''' he said. ''In the Indian context, it only seems arrogant, paternalistic.''

''At what point,'' a Native woman in the front row called out, does 'all men are created equal' come into this?''

From the back of the room, Alexander Tallchief Skibine, an Osage professor at the University of Utah's S.J. Quinney College of Law, urged Washburn to consider carefully his argument.

Later, Skibine said, ''You can criticize the administration of trust, but if you get rid of trust relationship, what appears next is termination.''

Skibine related this discussion to work that Philip S. (Sam) Deloria, the Standing Rock Sioux director of the American Indian Law Center, has done on plenary powers. If not held by Congress, then who would fill the vacuum, Skibine asked. Probably states; probably not tribes.

The conversation was collegial, yet Washburn, who previously worked in the Department of Justice, said that dropping what he called the ''empty rhetoric'' of federal trust is a serious conversation among many Indian law professionals. The antidote to federal trust is self-governance, he said.

''Good government suggests that we follow tribal self-governance,'' Washburn said. ''The federal government has said we think tribes make better decisions.''

The move to self-determination coincided with the Indian gaming movement, which opened the door to the new, modern federal regulations of Indian gaming nations.

In 2006, Washburn exchanged words with Sen. John McCain, then-chairman of the Senate Indian Affairs Committee. Washburn and Ernie Stevens Jr., National Indian Gaming Association president, had expressed concern in a committee hearing about the NIGC's trust responsibilities.

The commission ''does a good job of running background checks on employees,'' Washburn said. ''It does less of a good job on overseeing tribes financial decisions. I'm not sure it makes much sense for a G16 [a high-ranking federal worker] in Washington to make these decisions.''

At the time, McCain responded by saying I have ''82 reasons'' to keep oversight the way it is. ''He was referring to the $82 million extorted from tribes by Jack Abramoff. Abramoff was a U.S. government scandal, not a tribal scandal,'' Washburn said.

Yet the BIA has, since 1999, backed off trust, at least, on paper. Since the Cobell trust funds case was filed, the BIA stationery, which used to say ''We do this with trust responsibility to tribes,'' now has excised the statement.

Others who spoke at the conference cast similarly skeptical eyes toward the U.S. government.

''It's dangerous to ask government to fix the problem unless and until you fix the government,'' remarked David Haddock, a professor at Northwestern University School of Law.

Richard Monette, a law professor at the University of Wisconsin and former chairman of the Turtle Mountain Chippewa, said in many cases tribes have no certainty whether trust will be applied in their favor or against.

''The history of the law has completely swamped us with America's inability to make up its mind,'' Monette said. ''We wake up every morning not knowing what law you live by today. That may be the biggest human rights abuse there is.''

Monette, who was twice removed as chairman of the Turtle Mountain Chippewa, related his removals to the complexity of current time for many Indian nations, as gaming brings money into many nations, sometimes creating chaos and confusion in nations that were used to only poverty. It's not only the nations that are confused: the U.S. is also.

The tensions felt in government over control of Indian gaming revenues, Monette said, remind him of three decades ago when tribal fishermen on the Columbia River near Portland were being prosecuted for selling salmon. As a young congressional aide, Monette visited Yakama fisherman David Sohappy, a visit that the U.S. Army Corps of Engineers was afraid to make. When the Corps did accompany Monette on a visit with the elder fisherman, Monette remembers Sohappy saying, ''I tried to put the fish in my gas tank, and my car wouldn't run. So I had to sell the fish.''

Monette continued speaking. ''The whole set of control issues we were seeing when the Sohappys of the world were selling salmon,'' he said, ''are the same set we're seeing now.''