Federal Trust Responsibility Ronald Hall Director Tribal Technical Assistance Program Colorado State University (800)

Background Principals of Federal Indian Law Background Principals of Federal Indian Law What is Federal Trust Responsibility? What is Federal Trust Responsibility? DefinitionDefinition ScopeScope PartiesParties Current Trend in Application of Federal Trust Responsibility Current Trend in Application of Federal Trust Responsibility

Johnson v. McIntosh (1823) Defined Indian Title as the right to occupy land Defined Indian Title as the right to occupy land Discovery Doctrine – Discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, title is consummated by possession. Discovery Doctrine – Discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, title is consummated by possession. Christian Europeans gain title upon discovery where lands are occupied by heathen Christian Europeans gain title upon discovery where lands are occupied by heathen Tribes become mere occupants incapable of transferring the absolute title Tribes become mere occupants incapable of transferring the absolute title

Domestic Dependent Nation Cherokee Nation v. Georgia (1831) Cherokee Nation v. Georgia (1831) Is Cherokee Nation a “foreign state” such that it can sue in Supreme Court?Is Cherokee Nation a “foreign state” such that it can sue in Supreme Court? Tribes are separate state; distinct political bodies; separate and capable of self governmentTribes are separate state; distinct political bodies; separate and capable of self government Treaties with U.S. and U.S. laws recognize Cherokees as a stateTreaties with U.S. and U.S. laws recognize Cherokees as a state Cherokees argued that they are aliens owing no allegiance to the U.S. and are therefore foreignCherokees argued that they are aliens owing no allegiance to the U.S. and are therefore foreign Tribes have “Indian title” subject to U.S. titleTribes have “Indian title” subject to U.S. title Tribes are in state of pupilage; guardian-ward, look to U.S. for protectionTribes are in state of pupilage; guardian-ward, look to U.S. for protection Under sovereignty and control of U.S.Under sovereignty and control of U.S.

Seminole Nation v. United States (1942) 1856 treaty promised $500,000 trust fund, the annual interest ($25k) paid per capita annuity 1856 treaty promised $500,000 trust fund, the annual interest ($25k) paid per capita annuity Tribe sued claiming violations of treaty, including the manner in which payments were made. Tribe sued claiming violations of treaty, including the manner in which payments were made. Between 1870 to 1874, at request of tribal council, payments went to tribal treasurer and not directly to individuals. Between 1870 to 1874, at request of tribal council, payments went to tribal treasurer and not directly to individuals. Federal officials knew tribal officials were misappropriating the funds and depriving individuals of benefits Federal officials knew tribal officials were misappropriating the funds and depriving individuals of benefits

U.S. claimed payment was at request of tribe, and treaty was between U.S. and tribe, not individuals. U.S. claimed payment was at request of tribe, and treaty was between U.S. and tribe, not individuals. Rule of equity that 3 rd party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money, is a participant in the breach of trust and liable therefore to the beneficiary. Rule of equity that 3 rd party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money, is a participant in the breach of trust and liable therefore to the beneficiary. Council stood in fiduciary capacity to members. Council stood in fiduciary capacity to members. Payments did not discharge treaty obligation if the federal officials actually knew the Council was defrauding the members of the Seminole Nation. Payments did not discharge treaty obligation if the federal officials actually knew the Council was defrauding the members of the Seminole Nation.

Trust Exists Beyond Statutes In carrying out treaty obligations, U.S. is something more than a mere contracting party. In carrying out treaty obligations, U.S. is something more than a mere contracting party. Court has recognized the distinctive obligation of trust incumbent on the Government in its dealings with these dependent and sometimes exploited people. Court has recognized the distinctive obligation of trust incumbent on the Government in its dealings with these dependent and sometimes exploited people. U.S. has moral obligations of the highest responsibility and trust. U.S. has moral obligations of the highest responsibility and trust. Government conduct, as disclosed in the acts of those who represent it in dealings with Indians, should therefore be judged by the most exacting fiduciary standards. Government conduct, as disclosed in the acts of those who represent it in dealings with Indians, should therefore be judged by the most exacting fiduciary standards.

U.S. v. Mitchell U.S. v. Mitchell (1980) Mitchell I (General Allotment Act) and U.S. v. Mitchell (1984) Mitchell II – Claim for money damages by members of Quinault Tribe for federal mismanagement of the timber on their allotments under. U.S. v. Mitchell (1980) Mitchell I (General Allotment Act) and U.S. v. Mitchell (1984) Mitchell II – Claim for money damages by members of Quinault Tribe for federal mismanagement of the timber on their allotments under. Indian timber management statutes give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. Indian timber management statutes give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. They thereby establish fiduciary relationship They thereby establish fiduciary relationship

The Rule of Law from Mitchell Where the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provide otherwise) even though nothing is said expressly in the authorizing statute about a trust fund, or a trust or fiduciary connections. Where the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provide otherwise) even though nothing is said expressly in the authorizing statute about a trust fund, or a trust or fiduciary connections.

Menominee Tribe v. U.S. (1944) – mismanagement of timber resources Menominee Tribe v. U.S. (1944) – mismanagement of timber resources Morton v. Ruiz (1974) – BIA limitation of general assistance benefits to Indians living on reservations. Morton v. Ruiz (1974) – BIA limitation of general assistance benefits to Indians living on reservations.

Current Trend U.S. v. Navajo Nation (2003) U.S. v. Navajo Nation (2003) Indian Mineral Leasing Act of 1938 Indian Mineral Leasing Act of amendments to 1964 coal lease 1987 amendments to 1964 coal lease Tribe claims Secretary of Interior breach of trust for dealings with Peabody Coal contrary to tribal interests Tribe claims Secretary of Interior breach of trust for dealings with Peabody Coal contrary to tribal interests Act says minerals “may” be leased for mining purposes with approval of Secretary by authority of tribe Act says minerals “may” be leased for mining purposes with approval of Secretary by authority of tribe Court found no obligations resembling the detailed fiduciary responsibilities that Mitchell found in timber statutes Court found no obligations resembling the detailed fiduciary responsibilities that Mitchell found in timber statutes

U.S. v. White Mountain Apache Tribe Decision same day as Navajo Nation Decision same day as Navajo Nation 1922 Congress transferred control of Fort Apache to Secretary of Interior and in 1923 set aside 400 acres for use as an Indian school Congress transferred control of Fort Apache to Secretary of Interior and in 1923 set aside 400 acres for use as an Indian school. Statute said Fort Apache would be “held by the U.S. in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the lande and improvements for administrative or school purposes. Statute said Fort Apache would be “held by the U.S. in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the lande and improvements for administrative or school purposes. Found for the tribe, $14 million to rehabilitate the property Found for the tribe, $14 million to rehabilitate the property

Cobell Litigation