1. Treaty Rights, the Trust Responsibility, and Consultation
June 7, 2017
Stephen L. Pevar

2. STATUTES: EXAMPLES
Indian Tribal Justice Support Act (25 U.S.C. § 3601):
"(1) there is a Government-to-Government relationship between the United States and each Indian tribe; [and]
(2) the United States has a trust responsibility to each tribal government that includes the protection of the sovereignty of each tribal government."
Federal Oil and Gas Royalty Management Act (30 U.S.C. § 1701):
Noting that one purpose of this law is "to fulfill the trust responsibility of the United States for the administration of Indian oil and gas reserves."

3. STATUTES (cont.)
Indian Health Care and Improvement Act (25 U.S.C. § 1601):
"Federal health services to maintain and improve the health of the Indians are consonant with and required by the Federal Government's historical and unique legal relationship with, and resulting responsibility to, the American Indian people."

4. ORIGIN OF THE TRUST RESPONSIBILITY
Between 1776 and 1871, Congress entered into nearly 400 treaties with Indian tribes. Indian tribes were very powerful during this time. The purpose of nearly all of these treaties was to obtain Indian land at the least cost to the federal government.
In exchange for Indian land, the government typically promised that it would set aside a reservation for the tribe, and would guarantee and respect the tribe's sovereignty on, and control over, that land.

5. ORIGIN (cont.)
Virtually every treaty assured the Indians that they would be protected by the United States.
Treaty of Hopewell with the Cherokee Nation (1785):
The United States guarantees "peace to all the Cherokees" and promises "to receive them into the favor and protection of the United States."

6. ORIGIN (cont.) Treaty with the Navajo Nation (1849):
The United States guarantees that the tribe would be placed "under the exclusive jurisdiction and protection of the Government" and the federal government will ensure "the permanent prosperity and happiness of said Indians."
Treaty with the Yankton Sioux Tribe (1858):
The tribe relinquished claim to 11 million acres of land in exchange for a guarantee from the federal government "to protect the said [tribe] in the quiet and peaceful possession" of its remaining territory.

7. "Protection" does not imply domination, control, or surrender of sovereignty.
As the Supreme Court stated in Worcester v. Georgia, 31 U.S. 515 (1832) with respect to the Treaty of Hopewell: "The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected….A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government."
ORIGIN (cont.)

8. SCOPE OF THE TRUST RESPONSIBILITY
Two ways of interpreting the scope of the trust responsibility:
1. Narrow interpretation: only those duties expressly set forth in treaties or statutes. (This is the least the government must do.)
2. Broad interpretation:
(a) Support tribal self-government.
(b) Promote tribal economic independence.
Enhance tribal political and cultural well-being.
Safeguard Tribal Trust Resources.

9. THE TRUST RESPONSIBILITY STANDARD
The federal government's dealings with Indian tribes must "be judged by the most exacting fiduciary standards."
Seminole Nation v. United States, 316 U.S. 286, 297 (1942).
"[T]he law is well established that the Government in its dealings with Indian tribal property acts in a fiduciary capacity."
Lincoln v. Vigil, 508 U.S. 182, 194 (1993).
A fiduciary standard is the highest standard in the law of trusts.

10. STATUTES CAN CREATE TRUST RESPONSIBILITIES
"Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs."
Rice v. Cayetano, 528 U.S. 495, 519 (2000)
United States v. Mitchell, 463 U.S. 206 (1983)

11. DOI ORDER No. 3335 (2014): TRUST RESPONSIBILITY
“The trust responsibility consists of the highest moral obligations that the United States must meet to ensure the protection of tribal and individual Indian lands, assets, resources, and treaty and similarly recognized rights.”
“In recent decades, the trust relationship has weathered a difficult period in which Indian tribes and individual Indians have resorted to litigation asserting” violations of the Department’s trust duties. “In an historic effort to rebuild the trust relationship,” the Department settled these cases, reflecting “a renewed commitment to moving forward in strengthening the government-to-government relationship with Indian tribes and improving the trust relationship with tribes and individual Indian beneficiaries.”

12. ORDER 3335: “GUIDING PRINCIPLES”
“Principle 1: Respect tribal sovereignty and self- determination, which includes the right of Indian tribes to make important decisions about their own best interests.”
“Principle 2: Ensure to the maximum extent possible that trust and restricted fee lands, trust resources, and treaty and similarly recognized rights are protected.”
“Principle 3: Be responsive and informative in all communications and interactions with Indian tribes and individual Indian beneficiaries.”

13. COURT CASES
1. Cheyenne-Arapaho Tribes of Oklahoma v. United States, 966 F.2d 583, (10th Cir. 1992), cert. denied, 507 U.S (1993).
"Since the proposed plan was reasonable and appropriate, Woods argues, the Secretary's approval was within his discretion. [Woods'] argument completely ignores the fiduciary relationship between the Secretary and the Tribe. When the Secretary is obligated, as in this case, to act as a fiduciary, then his actions must not merely meet the minimal requirements of administrative law, but must also pass scrutiny under more stringent standards demanded of a fiduciary.”

14. COURT CASES
2. Paravano v. Babbitt, 70 F.3d 539, (9th Cir. 1995). 
"The tribes' federally reserved fishing rights are accompanied by a corresponding duty on the part of the government to preserve those rights Secretary Brown is a trustee of tribal interests as well as an administrator of [the nation’s fisheries]; he properly considered the Tribes' federally reserved fishing rights in issuing emergency regulations reducing ocean harvest limits of the Klamath chinook."  

15. BE CAREFUL WHAT YOU WISH FOR
United States v. Navajo Nation, 537 U.S. 488 (2003).
Photo of Peobody mine protest: Waleah Jones
Photo of blast dust by Forgotten People

16. CONGRESS: ONLY A MORAL OBLIGATION
As just explained, the doctrine of trust responsibility creates legally enforceable obligations for federal agencies: they must perform the duties Congress has assigned to them, and with the highest degree of care.
However, as to Congress, the trust doctrine creates only a moral obligation. The trust doctrine is not legally enforceable on Congress. Congress can destroy a trust relationship (and even terminate an Indian tribe) or enhance that relationship, at its discretion.

17. CONSULTATION
Consultation is a critical part of the Trust Responsibility.
Presidents Clinton and Obama issued Orders requiring federal agencies to engage in meaningful consultation with Indian tribes. President Obama's order requires all agencies that deal with Indian tribes to develop consultation policies. Each agency should now have a policy.
  Clinton Executive Memorandum: 59 Fed. Reg (1994)
Obama Executive Order No (2009)

18. CONSULTATION
The 1994 Clinton Executive Memorandum is entitled “Government-to-Government Relationship with Native American Tribal Governments.”
The Memorandum states that all agencies within the executive branch shall operate “within a government-to-government relationship with federally recognized tribal governments [and] shall consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments.”

19. CONSULTATION
President Obama’s E.O commits executive agencies to “regular and meaningful consultation and collaboration with tribal officials” in matters affecting Indian tribes. It required each agency to develop a policy within 90 days to implement the consultation process.

20. CONSULTATION
Consultation has two components: procedural and substantive.
Procedural:
1. Notify the tribe early and often about plans, possible actions.
2. Provide all critical information to the tribe on an on-going basis.
3. See if the tribe needs assistance, such as technical or legal.
4. Listen to what the tribe says and what the tribe wants.
5. Document the entire process and send written confirmations periodically, inviting tribal feedback.

21. CONSULTATION (cont.) Substantive:
1. Accept the tribe's recommendation unless there is a compelling reason for rejecting it.
2. If the tribe's recommendation is not accepted, look for a compromise, and if there isn’t one, explain why the tribe’s recommendation was rejected and seek a way to minimize any harm to the tribe.

22. CONSULTATION CASES
1. Quechan Tribe of the Fort Yuma Indian Reservation v. United States Dept. of the Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010).
“The required consultation must at least meet the standards set forth in [the agency’s consultation policy] and should begin early. The Tribe was entitled to be provided with adequate information and time, consistent with its status as a government that is entitled to be consulted. The Tribe’s consulting rights should have been respected. It is clear that did not happen here.”

23. CONSULTATION CASES
2. Klamath Tribes v. United States, 1996 WL (D. Ore. 1996).
“The court grants the Tribes’ motion for a preliminary injunction prohibiting the federal defendants from proceeding with ‘salvage’ logging that will affect wildlife resources within the Tribes’ former reservation, without ensuring, in consultation with the Klamath Tribes on a government-to-government basis, that the resources on which the Tribes’ treaty rights depend will be protected.”

24. CONSULTATION CASES
3. Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995).
The court found that the US Forest Service had withheld relevant information during the consultation process, making an informed decision difficult. The court therefore reversed the agency’s decision and required additional consultation.