The Federal Trust Doctrine—Realizing Chief Justice Marshall’s Vision
Office of General Counsel, Department of Defense
Disclaimer by Mr. Van Ness: The Department of Defense does not agree with all of the following discussion. However, I believe that it is the responsibility of lawyers to advise their clients both as to the state of the law and where the law should possibly be going.
Typically, agencies consult with Tribes because they must: Consultation is required by Executive Orders and statutes, and the Federal government cannot diminish tribal treaty rights. Consultation is a means for actualizing the Federal trust doctrine. But what is the Federal trust doctrine?
When there are hard and fast guidelines as to what is required by or involved in the trust doctrine, understanding is relatively easy. The most confusing task is understanding what the doctrine is without those hard and fast guidelines.
The Federal Trust Doctrine
Realizing Chief Justice Marshall’s Vision
Using history as a guidepost to the trust doctrine:
Chief Justice Marshall
Supreme Court Chief Justice Marshall versus President Andrew Jackson:
The first great Constitutional crisis arose in 1831 in Cherokee Nation v. Georgia [30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831)]. Andrew Jackson was President. States’ rights were having a resurgence. The states felt that they did not have to comply with Federal mandates or proclamations. The State of Georgia tried to evict the Cherokee Indians from the State. It passed a series of statutes imposing Georgia law on Cherokee lands. President Jackson supported these actions, as he had the passage of the Indian Removal Act of 1830.
William Wirt was the foremost expert on Indian affairs at the time. Knowing that he would not get anywhere in State court, Wirt argued that the Supreme Court had original jurisdiction to hear this case because the Tribe was a separate sovereign nation. The State did not appear, being confident that it need not acquiesce to Supreme Court orders.
In a 2-2-2 opinion, the Supreme Court held that the Cherokee Nation was not a state or a foreign nation, and that the Court therefore did not have original jurisdiction and could not hear the case..
Origins of the Indian Trust Responsibility
- Cherokee Nation v. Georgia (1831)
- neither states nor foreign nations
- “domestic dependent nations”
- “in a state of pupilage”
- stand as a “ward to his guardian”
The Supreme Court included language in Cherokee Nation v. Georgia that still survives today. It said that Indian nations are sui generis (they occupy a unique niche): They are “domestic dependent nations,” “in a state of pupilage,” and “stand as a ward to a guardian.” The Court has used these terms to develop the plenary power doctrine. This doctrine underlies the notion that that Congress can abrogate treaty rights without consultation of the tribes.
Origins of the Indian Trust Responsibility
- Worcester v. Georgia (1832)
- Tribes separate & distinct political communities
- Tribes sovereign over lands retained
- Treaties intended to ensure availability of sustainable, land-based, traditional existence
- Duty of protection bargained for consideration for land cessions
A second case arose in 1832, Worcester v. Georgia [31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832)]. A group of missionaries entered Cherokee lands in violation of State laws. The case was heard in Georgia State court, which found the group guilty. Worcester, who was one of the convicted missionaires, appealed to the United States Supreme Court, basing his case upon treaties and arguing that Cherokee land was tribal land, protected by sovereignty.
The Supreme Court held that Tribes are separate and distinct political communities; they are sovereign over the lands they retained; treaties were made in order to allow Tribes to retain their culture, sovereignty, reserved homelands, and the right to govern themselves; and that Tribes retain everything that they did not expressly give up. In return for land cessations, Tribes bargained for protection. The United States gave Tribes a solemn pledge to protect them and what they retained from encroachment or diminishment. The Court used the Cherokee Nation. v. Georgia dependency principles to demand recognition of the United States’ responsibility to protect the Tribes, their land, and whatever rights they had retained (sovereignty). The Court used the paternalism established in Cherokee Nation v. Georgia to establish aduty of protection.
The Duty of Protection
- Against what?
- Then: unrelenting pressure of immigrant intrusion
- Now: environmental and other threats to tribal lands, resources, burials, and TCPs
But protection against what? At this specific time in history, it was settlers, physical intrusion. Today, the protection is against a different set of threats: environmental and other threats to tribal land and resources, burials, and traditional cultural practices. These issues must be considered when agencies make decisions that may affect tribes.
Satisfying the Duty of Protection
- Narrow view:
- U.S. owes general trust responsibility to Indian tribes, but…
- Absent a specific obligation, duty is discharged by compliance with general laws and regulations not aimed at Indians
- Query: What’s become of the duty?
A narrow view of the general trust responsibility is that it is not enforceable unless there is a specific statutory obligation -- the duty is discharged by general compliance with laws. If this view is taken, what has become of the trust responsibility?
Satisfying the Duty of Protection
- Broader view:
- Compliance with laws of general applicability may not be enough
- General trust responsibility may not be enforceable, but…
- Agency discretion in imposing greater level of protection likely to be sustained
A broader view is that there is both a legal and a moral component to the trust responsibility. Most of the trust responsibility law has been developed in the context of a specific statutory obligation that has mostly to do with money damages. Under this, there must be a statutory cause of action in order to sue. (See, e.g., United States v. Mitchell, 463 U.S. 206 (1983), and Mitchell v. United States, 664 F.2d 265 (Ct.Cl. 1981).)) But Tribes may be able to bring cases using the Administrative Procedure Act to prevent or force action to honor the federal trust doctrine. Some laws that set minimum levels (such as EPA standards), may not be sufficient for protection of tribal resources such as fishing. Activities that may be permissible by law may not be protective enough with respect to tribal culture, sovereignty, hunting and fishing rights, religious practices.
Exercising Discretion Consistent with the Duty
- Water diversions upriver from Pyramid Lake
- Effect of re-designating airshed on tribe’s coal mining
- Coal leasing near No. Cheyenne reservation
- Navy ag out-leases and the Pyramid Lake cui-ui fishery
When agencies have discretion, when can the trust responsibility be used to increase protection? If discretion is exercised in that way, will it be upheld? Some cases have recognized a duty to protect even when there was no actual statutory duty or even if the statutory duty had been met. (See attachment to handout for cases.)
Exercising Discretion Consistent with the Duty
- Emergency regulation of commercial salmon fishing
- Timber sales on former Klamath reservation
- Corps permit for fish farm in Lummi U&A
- Expansion of open-pit gold mine in Little Rocky Mountains
In Northern Cheyenne v. Hodel [12 Indian L. Rep. 3065 (D. Mont. 1985), 851 F.2d 1152 (9th Cir. 1988) (review of injunction)], the court required a supplemental environmental impact statement on cultural and other effects on tribes. The court emphasized the promise made by the United States to protect tribe from incursions.
At Klamath, the court held that the tribe had retained rights even though it was terminated and reconstituted. The court said that the Forest Service must consider effects on the Tribe before selling timber on land that now belongs to the Forest Service but had previously belonged to the Tribe.
Since the 1950’s, courts have recognized Indian fishing rights under a general trust responsibility and general protection doctrine.
Island Mountain: recognizes duty of protection-federal trust doctrine
None of these cases sought monetary damages, but they have used a broader interpretation of the Federal trust doctrine.
What land is covered by a consultation requirement?
On reservation: Must always consult before action is taken.
Off-reservation reserved rights: Must always consult before action is taken.
Ceded lands: How do we interpret treaties? The general rule is that treaties are construed as the tribes would have understood them, with ambiguities being resolved in favor of the tribes because of the disproportionate bargaining power between the tribes and the United States. Do we conclude that the tribes gave up rights (hunting, fishing, etc.) on ceded lands if the treaty was silent, or that the tribes reserved these rights? If we construe the treaties in favor of the tribes, the tribes retained any rights that were not expressly ceded. If the tribes have retained those rights, then the government should consult with the tribes before taking action.
Traditional-use areas: Tribes may have traditionally used areas larger than the areas they actually ceded. Does the government have a duty to consult in regard to traditional use areas?
- Trust responsibility shared by all federal agencies
- Obligation to consult when tribal lands, resources, or cultural properties at risk
- Duty of protection not limited to specific statutory obligations
- Agencies have broad discretion to consider duty
- Discretion exercised to protect tribal resources will be upheld
The trust responsibility is shared by all federal agencies.
We have an obligation to ALWAYS consult if a Federal action will affect a tribe.
Where is the bright dividing line? It may not matter if consultation is done early, clearly, and openly, and not always with regard to an exact statutory obligation.
Enforceable statutory action does not always fill the protective federal trust doctrine.
Discretion exercised to protect tribal resources may be upheld.
In contemplating action, think about the trust doctrine / duty of protection that drives the duty to consult.
Conclusion: Federal agencies consult because they have to, but also because it is the principle means of giving life to our obligation to tribes.
“Great nations, like great men, should keep their word.”
Justice Hugo Black
Audience question: Does the law recognize degrees of consultation?
JvN Response: Yes; the obligation runs from requiring tribal permission to just notifying the tribe. There are two ways to react: Draw lines based upon where you feel you are in the continuum, or consult from the beginning to find out what interests are being affected, and then decide where you are in the continuum.
Audience comment: In Cobell v. Norton, a case in which no monetary damages are sought, the issue is how broadly the trust obligation runs where the Bureau of Indian Affairs takes responsibility.
Audience response: There is another point of view: Congress decides what the obligations are, and those obligations are defined by statutes. Federal employees should not have discretion because we still must consider all interests. Why should Indian interests have preeminence?
JvN response: Is the obligation to the agency or is there a larger obligation to ensure that full consideration is given to government responsibilities? Read Navajo Nation, White Mountain Apache cases for further insight. The Winter 2003 issue of the Tulsa Law Review is devoted to the issue of trust responsibility, and Mary Christina Wood of the University of Oregon on the Federal Trust Doctrine and Federal obligation to tribes.
Audience question: Assuming that consultation occurs early and fairly, what are some difficult issues that arise between tribes and agencies?
JvN Response: Reserved rights have been difficult and consultation has not really occurred much except when there are specific statutory obligations. Often, there is no consultation until there is already a problem. Many times, the context is not fully examined before decisions are made. Encourage the development of a relationship beforehand -- what the concerns, aims are of tribe / agency on each side. Often, agencies propose action prior to consultation.
The idea of discretion becomes more difficult when the agency involved is a regulatory agency. It is difficult to develop a relationship when the agency is enforcing a regulation rather than consulting or beginning a project.
Audience comment: More work is required at the front end, and that will be easier if consultation begins early.
Audience question: In the cases discussed, have there been distinctions between federal agencies and independent federal agencies such as FERC, FCC?
JvN Response: Maybe, if the independent agency is acting in a quasi-judicial manner (issuing license, regulation) rather than undertaking a project (say, BLM) that may affect tribes. There is a slightly different framework -- consultation would usually have to occur with all stakeholders, not only with tribes. One view is that tribes have a special right to be heard because of the Federal government’s special obligation to protect tribes. The case law is not necessarily sympathetic to that point of view. (Refer to DoD policy, consulted around 15 times with tribal gatherings. – expand to clarify)