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Origins of federal trust responsibility

The first discussion of trust responsibility comes in a document called the Royal Proclamation of 1763. Here the British King, George III, made statements about protection of Indian lands, protection of Indian trade, and the maintenance of peace among the Indians and colonies. The proclamation is embedded within the law of Canada, and has been adopted by the United States through policy and by the Supreme Court case Johnson v. M’Intosh in 1823. How did the king interpret trust responsibility?

The U.S. Constitution says only the U.S. Congress can make treaties with Indians, and that Congress, not the individual colonies, has the power to regulate trade and relations with the ‘Indian tribes.’

“And whereas it is just and reasonable, and essential to our interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.” The Proclamation forbids any colonial official from making plans to issue land patents on any Indian reserved lands “for the present, and until Our further Pleasure be known.” The King equated “the several Nations or Tribes of Indians.” Hence the language in the U.S. Constitution, which mentions Indian tribes, in this line of reasoning can be construed to mean “Indian Nations.” Clarifying the meaning of “Tribes of Indians” as the same as “Indian Nations” supports a stronger sense of established European recognition and respect for Indian national diversity and organization.

Furthermore, the proclamation says that the Indian nations live under the “protection” of the British government and should not be molested in the lands they occupy. “And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such irregularities for the future, and to the end that the Indians be convinced of our Justice and determined Resolution to remove all Cause of Discontent. ...”

The colonial expansion and taking of Indian lands was a major cause of Indian participation in the French and Indian War (1754 – 1763), often against the British. The U.S. Constitution says only the U.S. Congress can make treaties with Indians, and that Congress, not the individual colonies, has the power to regulate trade and relations with the “Indian tribes.” Furthermore, like the proclamation, Indians can sell land only to the U.S. government and not to state governments or private interests.

The proclamation, however, implies a much stronger claim of ownership to Indian nations than does U.S. policy. The Indian nations’ ownership or claims to recognized hunting grounds, suggests a form of collective national possession of land. While the Indians might not have understood the land in Western terms of ownership, they did recognize hunting territories that they were willing to fight for and protect. Because Indians were willing to go to war to protect their territories, the British were forced to recognize Indian claims to land. Each nation had its own hunting grounds and the proclamation says that the British government will respect those hunting grounds, because it is in their own essential interests. The British government declared it “to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all lands” west of Appalachian divide.

While the Indians might not have understood the land in Western terms of ownership, they did recognize hunting territories that they were willing to fight for and protect.

Trust responsibility, as given in the proclamation, was government policy crafted to maintain peace, establish justice, regulate trade and economic well-being, and protect ownership of land and economic assets. When the United States took up British territorial claims after the War of Independence, the United States also inherited a broad interpretation of trust responsibility in relations with Indian nations. The U.S. Constitution and courts, however, do not elaborate sufficiently on the implications of Indian trust responsibility.

Following the tradition of the Proclamation of 1763, Indian trust responsibilities should provide protection for Indian land, and uphold cooperative government-to-government relations that ensure justice, self-government, and economic well-being in both Indian country and the United States.