[Senate Hearing 112-637]
[From the U.S. Government Publishing Office]
S. Hrg. 112-637
FULFILLING THE FEDERAL TRUST RESPONSIBILITY: THE FOUNDATION OF THE
GOVERNMENT-TO-GOVERNMENT RELATIONSHIP
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
MAY 17, 2012
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. AKAKA, Hawaii, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington MIKE CRAPO, Idaho
JON TESTER, Montana MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Loretta A. Tuell, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on May 17, 2012..................................... 1
Statement of Senator Akaka....................................... 1
Statement of Senator Barrasso.................................... 2
Statement of Senator Crapo....................................... 4
Prepared statement........................................... 5
Statement of Senator Johanns..................................... 5
Statement of Senator Udall....................................... 2
Prepared statement........................................... 3
Witnesses
Atcitty, Shenan, Legal Counsel, Jicarilla Apache Nation.......... 77
Prepared statement of Hon. Levi Pesata, President, Jicarilla
Apache Nation.............................................. 78
Baptiste, Hon. Brooklyn, Vice-Chairman, Nez Perce Tribal
Executive Committee............................................ 72
Prepared statement........................................... 74
Fletcher, Matthew L.M., Professor of Law/Director, Indigenous Law
and Policy Center, Michigan State University College of Law.... 9
Prepared statement........................................... 12
Halbritter, Ray, Nation Representative, Oneida Indian Nation..... 49
Prepared statement........................................... 51
McCoy, Melody, Staff Attorney, Native American Rights Fund....... 6
Prepared statement........................................... 7
Rey-Bear, Daniel, Partner, Nordhaus Law Firm LLP................. 30
Prepared statement........................................... 32
Sharp, Hon. Dawn, President, Quinault Indian Nation.............. 67
Prepared statement........................................... 69
Appendix
Kitka, Hon. Julie, President, Alaska Federation of Natives,
prepared statement............................................. 101
Masten, Hon. Leonard, Chairman, Hoopa Valley Tribe, prepared
statement...................................................... 113
Steele, Hon. John Yellow Bird, President, Oglala Sioux Tribe,
prepared statement............................................. 128
Thomas, Hon. Edward K., President, Tlingit and Haida Indian
Tribes of Alaska , prepared statement.......................... 125
FULFILLING THE FEDERAL TRUST
RESPONSIBILITY: THE FOUNDATION OF THE GOVERNMENT-TO-GOVERNMENT
RELATIONSHIP
----------
THURSDAY, MAY 17, 2012
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:15 p.m. in room
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
The Chairman. The Committee will come to order.
Aloha and welcome to all of you. Today, the Committee will
hold an oversight hearing to examine the Federal trust
responsibility.
The Federal trust relationship that exists between the
Federal Government and the Indian Tribe goes back to the very
first days of this Country. All branches of the Government, the
Congress, Administration and the courts acknowledge the
uniqueness of the Federal trust relationship. It is a
relationship that has its origins in international law,
colonial and U.S. treaties and agreements, Federal statutes and
Federal legal decisions. A trust relationship carries with it
legal, moral and fiduciary obligations that is incumbent upon
the Federal Government to uphold.
When the trust responsibility is acknowledged and upheld by
the Federal Government, a true government-to-government
relationship can exist and thrive. When the trust
responsibility is not upheld, Tribal sovereignty is eroded and
undermined.
I have been pleased by the actions of the Obama
Administration settling long-standing litigation brought by
Tribes against the U.S. Government. Some of these cases involve
claims that go back over 100 years. It is only in acknowledging
the lapses in the trust relationship that we can move forward
in a way that is beneficial to the Government, Tribes and
Tribal Indians.
Today, we hear from legal scholars and practices to discuss
the trust relationship, its formation, how it has changed
throughout the years and where it stands now. I am also pleased
to have the Tribal leaders with us who can share their
perspective of what the trust relationship looks like on the
ground and what it means to your Tribal members.
The hearing record for today's hearing will remain open for
two weeks from today. I know this a topic of great interest to
many Tribes and other stakeholders. So, please submit any
written comments to be included in the hearing record.
Senator Barrasso, for any remarks that you may have.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. Thanks
for holding this hearing on this very important topic.
I just want to thank you for your continued leadership in
this area. You do a magnificent job and, as you stated, there
is a long history between the United States Government and
Indian nations. And I appreciate your willingness to look in,
and look back to the past and then to provide leadership into
the future.
While much of the history has not been good, the
relationship, I believe, and under your leadership, has
certainly improved. In the past few decades, we have seen much
improvement. And I think it has been a direct result of the
Federal policy of Indian self determination, to which you are
very, very well committed.
Now, that policy has led to unprecedented Tribal
participation in decisions that affect the future of Indian
communities. Greater participation has in turn led to greater
accountability. Greater participation and accountability has
been good for Indian Country in so many different ways. Tribal
governments have become far more sophisticated and more capable
and better able to serve their people.
That is why I have introduced my Indian Energy Bill, S.
1684, which is co-sponsored by the Chairman. Our bill
recognizes the undeniable fact that no one can better manage
Tribal energy resources than the Tribes themselves. If nothing
else, the Cobell litigation and many of these Tribal trust
mismanagement cases illustrate an important point. The point is
that the United States has not been a very effective manager of
Indian trust assets and, in fact, I do not believe that the
Federal Government will ever be able to manage these assets
better than the Tribes themselves. I am convinced of that and I
think an ever growing number of Tribes are convinced of that as
well.
So, I want to thank all of the witnesses for being here
today and for providing the Committee with your thoughtful
testimony.
Thank you, Mr. Chairman.
The Chairman. Thank you, very much, Vice Chairman Barrasso.
Now, I call on Senator Tom Udall for any remarks he might
have.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Senator Akaka, and thank you,
Senator Barrasso. I think it is important to hold this hearing,
a very important hearing for Indian Country. And this hearing
is a historic event that is vital to establishing an official
record describing the responsibilities of the Federal
Government to the Tribes.
I hope that this Oversight Hearing on the Federal trust
responsibility will help reiterate the extent of this long-
standing obligation in every branch of Government. As Tribes
increasingly engage in self governance, as the Supreme Court
continues to take up Tribal cases, and as Federal budgets are
trimmed, the question of the Federal Government's
responsibility to Tribes is worth examining. And that is why it
is important that we are doing what we are doing today.
In drafting budgets, the Executive Branch often falls short
of fulfilling its trust responsibility. As construction budgets
and healthcare needs go unmet, in recent years the Supreme
Court has made rulings that have significantly impacted the
relationship between Tribes and the Federal Government to the
detriment of Tribes and erosion of trust responsibility.
In June 2011, the Supreme Court decision of Jicarilla
versus the United States, they ruled on a case called Jicarilla
versus the United States, is of particular interest to me and
my constituents in New Mexico. This case is one such example of
the Court's questionable interpretation of the trust
responsibility and one of many issues that I look forward to
discussing with the panelists today.
I was looking forward to welcoming the president of the
Jicarilla Apache Nation to the Committee today but,
unfortunately, President Levi Pesata is under the weather and
unable to make the trip to Washington. We hope you feel better
soon, President Pesata. But I do, however, want to welcome
Shenan Atcitty who is standing in for the president.
And I also want to welcome Daniel Rey-Bear, a partner at
the Nordhaus Law Firm in Albuquerque, New Mexico, and look
forward to hearing the testimony of all of the witnesses. And I
want to thank Daniel for his work for New Mexico Tribes.
So, with that, I have shortened everything. I will put my
full statement in the record and really look forward to hearing
the witnesses.
Thank you, Chairman Akaka.
[The prepared statement of Senator Udall follows:]
Prepared Statement of Hon. Tom Udall, U.S. Senator from New Mexico
I would first like to thank Senator Akaka for holding this
important hearing. This is a historic event that is vital to
establishing an official record describing the responsibilities of the
Federal Government to Tribes.
I hope that this oversight hearing on the federal trust
responsibility will help reiterate the extent of this longstanding
obligation in every branch of government.
As Tribes increasingly engage in self-governance, as the Supreme
Court continues to take up Tribal cases, and as federal budgets are
trimmed, the question of the Federal Government's responsibility to
Tribes is worth examining.
In drafting budgets, the executive branch often falls short of
fulfilling its trust responsibility, as construction budgets and
healthcare needs go unmet. In recent years, the Supreme Court has made
rulings that have significantly impacted the relationship between
tribes and the Federal Government, to the detriment of Tribes and
erosion of trust responsibility.
The June 2011 Supreme Court decision Jicarilla vs. the United
States is of particular interest to me and my constituents in New
Mexico. This case is one such example of the Court's questionable
interpretation of trust responsibility, and one of many issues that I
look forward to discussing with the panelists today.
I was looking forward to welcoming the President of the Jicarilla
Apache Nation to the committee today, but unfortunately President Levi
Pesata is under the weather and unable to make the trip to DC. We hope
you feel better soon President Pesata. I do, however, want to welcome
Shenan Atcitty, who is standing in for the President.
I also want to welcome Daniel Rey-Bear, a partner at Nordhaus Law
Firm in Albuquerque, New Mexico. I look forward to hearing your
testimony and thank you for your work with tribes in New Mexico and
elsewhere.
Thank you.
The Chairman. Thank you.
Senator Michael Crapo, your remarks.
STATEMENT OF HON. MICHAEL CRAPO,
U.S. SENATOR FROM IDAHO
Senator Crapo. Thank you, Mr. Chairman, and I, too,
appreciate your leadership and the leadership of Senator
Barrasso. The two of you are providing strong leadership for
the proper approach that we should take in managing our trust
responsibilities and I appreciate this hearing as well.
I apologize, I will not be able to stay for the hearing.
But I wanted to get here to introduce one of our witnesses in
the second panel who is from Idaho. And I appreciate the
opportunity to introduce Nez Perce Tribal Executive Committee
Vice Chairman Brooklyn Baptiste to the Committee.
Brooklyn is a very good personal friend of mine and we work
very well together and he is a great leader in Idaho. I want to
commend him for his leadership both to the Tribe and to the
State of Idaho and, frankly, to the Nation as his presence here
indicates.
In his tenure on the Nez Perce Tribal Executive Committee,
Brooklyn has served on the Budget and Finance Subcommittee, the
Enterprise Board, Law and Order, Youth Affairs Subcommittee and
the Land Enterprise Commission. In addition, he is an
accomplished artist and has been commissioned to produce art
for numerous organizations, including the Tribe's gaming
enterprise.
Throughout my time in the Senate, I have had the
extraordinary opportunity to work with Vice Chairman Baptiste
on many pertinent issues that directly affect the Federal trust
responsibility. A couple of quick examples.
The Nez Perce Tribal Big Horn Recovery Project assists the
Federal Land Management Agencies in their regulatory
responsibilities to Nez Perce treaty rights through Big Horn
Sheep restoration on Federal lands. This project, which has
never received Federal appropriations, will hopefully preclude
an Endangered Species Act listing for Big Horn Sheep which will
be a much more effective way to approach the issue while
protecting the necessary interests that we have.
Additionally, Vice Chairman Baptiste has played a
significant role in the Nez Perce Tribe's efforts to find
consensus agreement among Federal Land Management issues with
regard to the Clear Water Basin Collaborative in Idaho.
Today, the Committee will discuss how the Federal
Government can effectively reaffirm the important trust
relationship between the United States and the Tribes. And I am
sure that Vice Chairman Baptiste will have significant wisdom
to give us as we approach that responsibility.
Thank you, Mr. Chairman.
[The prepared statement of Senator Crapo follows:]
Prepared Statement of Hon. Michael Crapo, U.S. Senator from Idaho
Thank you, Mr. Chairman, Vice Chairman Barrasso, and members of the
Committee. I appreciate the opportunity to introduce Nez Perce Tribal
Executive Committee Vice-Chairman, The Honorable Brooklyn Baptiste, to
the Committee.
First, I want to commend Vice-Chairman Baptiste for his great
leadership to both the Nez Perce Tribe and the State of Idaho.
In his tenure on the Nez Perce Tribal Executive Committee, Brooklyn
has served on the Budget & Finance Subcommittee and Enterprise Board;
Law & Order, Youth Affairs Subcommittee; and the Land Enterprise
Commission.
In addition, Brooklyn is an accomplished artist, and has been
commissioned to produce art for numerous organizations, including the
Tribe's Gaming Enterprise.
Throughout my time in the U.S. Senate, I have had the extraordinary
opportunity to work with Vice Chairman Baptiste on many pertinent
issues that directly address federal trust responsibility.
For example, the Nez Perce Tribe Bighorn Recovery Project assists
the federal land management agencies in their regulatory
responsibilities to protect Nez Perce Treaty Rights through bighorn
sheep restoration on federal lands.
This project, which has never received federal appropriation, will
hopefully preclude an Endangered Species Act listing for bighorn sheep,
a much more costly restoration effort for the Federal Government, while
providing recreational and economic benefits for Idaho and the nation.
Additionally, Vice-Chairman Baptiste has played a key role in the
Nez Perce Tribe's efforts to find consensus agreements to federal land
management issues with regard to the Clearwater Basin Collaborative.
Today, the Committee will discuss how the Federal Government can
effectively reaffirm the important trust relationship between the
United States and tribes. As such, I would urge you to listen to Vice-
Chairman Baptiste, as he is ideally suited to understand how to enhance
and strengthen this connection.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Crapo.
Now, Senator Mike Johanns, with your remarks.
STATEMENT OF HON. MIKE JOHANNS,
U.S. SENATOR FROM NEBRASKA
Senator Johanns. Mr. Chairman, thank you. I also can be
here just for a limited time so I will abbreviate my comments
and submit anything additional that I would like to say in my
opening statement for the record. But I do want to just say to
the panel, and the second panel, thank you for being here.
Mr. Chairman, I know of no other issue that is more central
and bedrock to our relationship than this issue which is the
subject matter of this hearing, the trust relationship. And so,
I am very anxious to hear the panel members speak to it and I
compliment you for holding this hearing. I think this hearing
is due. I think it is important that we air this and I am
anxious to hear from our witness.
Again, thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Johanns, for
your remarks.
I would like to invite our first panel to the witness table
and to introduce them as well.
Ms. Melody McCoy, Staff Attorney of the Native American
Rights Fund in Boulder, Colorado; Mr. Matthew Fletcher,
Professor of Law and Director of the Indigenous Law and Policy
Center at Michigan State University College of Law in East
Lansing, Michigan; and Daniel Rey-Bear, a partner at the
Nordhaus Law Firm in Albuquerque, New Mexico.
Welcome, Ms. McCoy, please proceed with your testimony.
STATEMENT OF MELODY McCOY, STAFF ATTORNEY, NATIVE AMERICAN
RIGHTS FUND
Ms. McCoy. Thank you, Mr. Chairman, members of the
Committee. Good afternoon.
I am Melody McCoy, enrolled member of the Cherokee Nation
in Oklahoma and a staff attorney for coming up on 26 years now
at the Native American Rights Fund in Boulder.
I appreciate the opportunity to testify today regarding the
statutes and the cases that govern the accounts, funds and
assets that are held by the United States Government in trust
for American Indian and Alaska Native Tribes.
NARF has been representing over 40 Tribes in their
historical claims for breaches of trust accounting and
management duties. Some of these cases have been in court for
20 years and all of them have recently been in settlement
negotiations with the Government.
Of course, the Government's holding of trust accounts for
Tribes dates back to an 1820 Federal policy. When the
Government purchased land from Tribes by treaty, it did not
directly pay the Tribes. The Government chose to hold the
payment in trust, the money itself in trust, unless and until
it distributed to the Tribes.
These old treaty funds, over time, evolved into statutes by
which today the Government holds in trust judgment awards,
which are pure monetary awards or claims settlements to Tribes
typically from entities like the historic Indian Claims
Commission, and proceeds of labor accounts, which are trust
accounts based on income earned from land, natural resources,
trust assets that are under trust management for Tribes by the
Government. And today, the Government purports to hold about
2,900 accounts in trust for Tribes.
Government management of Tribal trust accounts, funds and
assets are governed by several statutory schemes. There are
statutes that address the accounting duties and issues. There
are statutes that address the investment of the Tribal trust
funds. And there are statutes that address the management of
the trust assets and natural resources. By these statutes, by
and large Congress has delegated authority for these trust
duties to the Department of the Interior and the Treasury.
In the investment statutes, the history of that is that
typically early on there were Tribe specific treaties or
statutes that ensured that, as I said, when the Government held
the funds in trust for Tribes as payment for the treaty lands,
the Government was obligated to earn interest on those funds.
Throughout the 20th Century, the statutory fiduciary investment
duties and beneficiary protections increased for these Tribal
trust funds. Today, the statutes are codified in Title 25 at
four separate sections, 161, 161a, 161b and 162a.
In general, the Interior Department has discretion to
deposit Tribal trust funds in the Treasury or to invest them in
a range of statutorily approved financial investments outside
of the Treasury. If they are deposited in the Treasury since
1984, they must earn interest at rates determined by Treasury
considering, as the statute says, current market yield on
comparable marketable obligations. Since 1974, regulation of
the Interior Department have required judgment awards, the pure
monetary funds, to be invested outside of the Treasury.
The resource management statutes for Tribal trust assets
and resources are numerous and they typically deal with the
management of Tribal land and natural resources such as oil and
gas, minerals and timber. I refer to the Handbook of Federal
Indian Law. They have, perhaps, a good summary of those.
In the accounting statutes, this is probably Congress' most
recent foray into those, and there have been three separate
series of statutes involving accounting issues for Tribal trust
funds and those are set forth.
And on the cases, I briefly want to go through three
points. The historic Indian Claims Commission was a statutory
scheme, a unique statutory forum set up by Congress, in the
1940s, 1950s and 1960s and, after three decades, ultimately the
Indian Claims Commission awarded over $1.2 billion to Indian
Tribes in the form of these judgment awards that again were
held in trust until they were distributed.
The Indian Claims Commission has ended and the Supreme
Court, without that kind of a forum, has made it difficult for
Tribes to bring these cases although, as we have seen now,
there are 100 Tribes that have brought cases involving these
historical mismanagement claims. We have settled perhaps about
half of those, most of those under the current Administration.
So, I think it very timely that this Congress take a look
at this issue in the wake of these historic settlements. And we
really appreciate this hearing and the opportunity to assist
the Congress and, most importantly, we urge Congress to work
with Tribes in a government-to-government fashion and in
respect of Tribal sovereignty to see what needs to be done
next. That is what needs to happen.
Thank you.
[The prepared statement of Ms. McCoy follows:]
Prepared Statement of Melody McCoy, Staff Attorney, Native American
Rights Fund
Introduction and Overview
Good afternoon Members of the Committee. I am Melody McCoy, an
enrolled member of the Cherokee Nation and a Staff Attorney at the
Native American Rights Fund (NARF). NARF thanks the Committee for the
opportunity to testify today regarding the statutes and cases that
govern the accounts, funds and assets that are held by the United
States government in trust for American Indian and Alaska Native
Tribes. NARF represents over 40 tribes in their historical claims for
breach of trust accounting and management duties. Some of these cases
have been in court for 20 years and all them have been in settlement
negotiations with the government.
The government's holding of trust accounts for tribes dates back to
an 1820 federal policy. At that time when the United States by treaty
purchased land from tribes the government did not make direct payment
to tribes; rather, it held the money in trust for tribes unless and
until it distributed the money to the tribal beneficiaries. Over time
this policy and practice evolved into statutes by which the government
holds in trust ``Judgment Awards,'' which are monetary awards or claims
settlements to tribes typically from entities like the historic Indian
Claims Commission, and ``Proceeds of Labor'' accounts, which are based
on income earned from land and natural resources that are under trust
management for tribes by the government. Today the government purports
to hold about 2,900 trust accounts for about 250 tribes.
Tribal Trust Statutes
The government's management of tribal trust accounts, funds, and
assets are governed by several statutory schemes. There are statutes
that address tribal trust accounting duties and issues. There are
statutes that address the investment of tribal trust funds. There are
statutes that address the management of tribal trust assets and natural
resources. By these statutes Congress has delegated authority for
fiduciary duties regarding tribal trust fund accounts, funds, and
assets primarily to the Departments of the Interior and the Treasury.
Investment Statutes. Nineteenth century treaties and statutes
usually ensured that while it held funds in trust for tribes, the
government was obligated to earn interest on the funds. Throughout the
twentieth century, statutory fiduciary investment duties and
beneficiary protections increased for tribal trust funds. The statutes
governing the government's investment of tribal trust funds are
codified at 25 U.S.C. 161, 161a, 161b and 162a. Generally, the
Interior Department has discretion to deposit tribal Proceeds of Labor
account funds in the Treasury or invest them outside of the Treasury in
a range of statutorily approved financial instruments. If deposited in
the Treasury, since 1984 they must earn interest at rates determined by
Treasury considering current market yields on comparable marketable
obligations. Since 1974 Interior regulations have required Judgment
Awards to be invested outside of Treasury.
Resource Management Statutes. A good summary of the general
statutes governing the management of tribal land (including leases for
agriculture, grazing and rights of way) and natural resources such as
oil, gas, minerals and timber that the government holds in trust for
tribes can be found in Felix S. Cohen, Handbook of Federal Indian Law
17.01-17.04 (2005 ed.). These statutes typically include provisions
for the government's collection of income from the management of tribal
trust assets and deposit of that income in Proceeds of Labor accounts
for tribal beneficiaries. There are also a few ``tribe specific''
statutes that govern the government's management of the trust assets or
natural resources of a specific tribe.
Accounting Statutes. Congress recently has addressed tribal trust
account accounting matters in several ways. Since 1987 Congress has
mandated that the government perform and provide tribal trust account
accountings, audits and reconciliations. Pub. L. No. 100-202 (1987).
The accounting and audit mandates are key features of the American
Indian Trust Fund Management Reform Act of 1994. Pub. L. No. 103-412;
25 U.S.C. 4044, 4011(c). In addition, since 1990, in the so-called
Indian Trust Accounting Statutes, Congress has provided that, with
respect to tribal trust fund mismanagement claims, the general six year
statute of limitations for claims against the government does not begin
to run unless and until the government has provided tribal
beneficiaries with proper trust fund accountings. Pub. L. No. 101-512
(1990)--Pub. L. No. 112-74 (2011). In the wake of the provision of
reports to tribes in 1996 as a result of a government contract with the
accounting firm of Arthur Andersen to perform tribal trust accountings,
in 2002 and 2005 Congress provided that for purposes of applicable
statutes of limitations the date on which tribes received their Arthur
Andersen reports is deemed to be December 31, 1999 and December 31,
2000 respectively. Pub. L. No. 107-153 (2002), Pub. L. No. 109-158
(2005). These last two sets of statutes are intended to toll the
commencement of statutes of limitations on tribal trust accounting and
mismanagement claims and defer the accrual of such claims.
Tribal Trust Cases
Indian Claims Commission. Historically tribes had limited access to
federal courts and had to get special acts of Congress authorizing
their claims against the government. In 1946 Congress created the
Indian Claims Commission (ICC). Pub. L. No. 79-726. The ICC was
authorized generally for a limited time period to hear and adjudicate
historic claims of tribes against the government that accrued before
August 13, 1946. It had jurisdiction only to award money damages. There
were over 600 ICC claims filed. When the ICC began, the government was
holding about $28 million in trust for tribes. The ICC ultimately
awarded over $1.2 billion to tribes as Judgment Awards held in trust by
the government unless and until distributed.
Supreme Court. Tribal access to federal courts today is generally
more available but the U.S. Supreme Court has set strict requirements
for tribes suing the government for money damages for alleged breaches
of trust. The Court requires tribes to show a substantive statute or
regulation that (1) imposes specific fiduciary duties or creates
specific beneficiary rights and (2) can be ``fairly interpreted'' as
mandating compensation by the government in the event of a breach.
United States v Mitchell, 445 U.S. 535 (1980) (Mitchell I); United
States v Mitchell, 463 U.S. 206 (1983) (Mitchell II); United States v
Navajo Nation, 537 U.S. 488 (2003) (Navajo I); United States v Navajo
Nation, 556 U.S. 287 (2009) (Navajo II).
Post-AA Reports. As noted above, tribal trust account holders were
provided Arthur Andersen reports in 1996. The Arthur Andersen reports
examined some transactions in some tribal trust accounts for a 20 year
period (1972 to 1992). Also as noted above, for limitations statute
purposes, in 2005 Congress deemed these reports to have been received
by tribes on December 31, 2000. Without further addressing of the
matter by Congress, by the end of 2006, over 100 tribes had filed
claims in federal courts for historical trust accountings or for
damages for trust funds and asset mismanagement.
Due to threshold issues of jurisdiction, discovery, evidence and
procedure very few tribal trust cases have proceeded to determinations
regarding the merits of a tribe's claims or remedies. To this day there
are no final unappealed court decisions on the merits of government
liability for historical failure to account or for funds or assets
fiduciary mismanagement. There are no final decisions with appeals
exhausted regarding the existence or scope of remedies or relief that
may be judicially awarded. Tribal trust cases are costly and time
consuming.
Settlements. Between 2001 and 2009 there were four full or partial
negotiated settlements of tribal trust claims. From 2010-2011 there
were another three negotiated settlements. In 2012 there have been
negotiated settlements in 42 tribal trust cases.
Conclusion
Many reports from federal agencies including the Government
Accountability Office and the Department of the Interior's Office of
the Inspector General have been highly critical of the government's
historical failure to account for and properly manage tribal trust
funds and assets. Government contractors including Arthur Andersen and
Price Waterhouse have reached similar conclusions. The 1994 Trust
Reform Act was preceded by House Report No. 102-488 (1992), entitled
``Misplaced Trust: The Bureau of Indian Affairs' Mismanagement of the
Indian Trust Fund.''
In light of these reports, court cases and settlements, NARF
believes that it is timely for Congress to review the government's on-
going fiduciary management of tribal trust accounts, funds and assets.
While it is not for NARF to make specific recommendations, in keeping
with tribal sovereignty, the federal policy of government-to-government
relations with tribal nations and the recent United Nations Declaration
on the Rights of Indigenous Peoples--which includes the right of
indigenous peoples to ``free, prior and informed consent'' to approve
or reject proposed actions or projects that may affect them and their
land and resources--NARF urges Congress to work with tribes regarding
any needed trust reform. The new Secretarial Commission on Indian Trust
Administration and Reform is tasked with providing advice and
recommendations to the Secretary of the Interior on trust management.
As part of its comprehensive evaluation of government trust management
the Commission is seeking the input of tribes and Indian organizations
at a scheduled series of public meetings this year. Tribes and national
and regional tribal organizations have invaluable experience and
expertise on tribal trust accounts, funds and assets that can be shared
with the Commission, and with Congress through hearings such as this.
Thank you for the opportunity to assist the Committee at this
Oversight Hearing.
The Chairman. Thank you very much, Ms. McCoy, for your
testimony.
Mr. Fletcher, will you please proceed with your testimony.
STATEMENT OF MATTHEW L.M. FLETCHER, PROFESSOR OF LAW/DIRECTOR,
INDIGENOUS LAW AND POLICY CENTER, MICHIGAN STATE UNIVERSITY
COLLEGE OF LAW
Mr. Fletcher. Thank you. Chairman Akaka and Members of the
Committee, it is a pleasure to testify today on the Federal
trust responsibility to Indian nations and I say chi-miigwetch
for the invitation to testify.
I am a member of the Grand Traverse Band of Ottawa and
Chippewa Indians which is located in the center of the
universe, Peshawbestown, Michigan. I am the co-author of the
sixth edition of Cases and Materials on Federal Indian Law with
the late David Getches, Charles Wilkinson and Robert Williams,
and the author of American Indian Tribal Law, the first
casebook for law students on Tribal law.
In 2010, I was elected to the American Law Institute and my
colleague, Wenona T. Singel and I currently head up the effort
to initiate an ALI restatement project on American Indian Law.
Chapter one of this proposed project will be on Tribal Federal
relations. So, it is very fortuitous that I have been called to
testify today.
I am going to talk a little bit about the historic
underpinnings of the trust responsibility to begin. The Supreme
Court interpreted the meaning of the Indian Commerce Clause and
how it interacts with Indian treaties in the so-called Marshall
Trilogy of early Indian law cases. In Johnson v. M'Intosh, an
early Indian lands case, Chief Justice Marshall held that the
Federal Government had exclusive dominion over land transaction
with Indian Tribes, exclusive as to individual American
citizens and as to State government.
In Cherokee Nation v. Georgia, Chief Justice Marshall held
that while Indian Tribes were not State governments as defined
in the Constitution, nor were they foreign nations. They were
something akin to domestic dependent nations.
And finally, in Worcester v. Georgia, Chief Justice
Marshall confirmed that the laws of States have no force in
Indian Country and that the Constitution's Supremacy Clause has
powerful, gives powerful effect, to Indian treaties as the
supreme law of the land.
The latter half of the 19th Century and first half of the
20th Century was a low point in Federal Tribal relations,
however. In cases like United States v. Kagama and Lone Wolf v.
Hitchcock, the Supreme Court adopted a guardian-ward concept of
Federal Tribal relations. The guardian-ward concept gave
license to the Executive Branch and Congress to interfere with
internal Tribal affairs, undermine and even expropriate without
just compensation Tribal property rights and to eliminate the
ties between Tribes and the Government during what we now call
the Termination Era.
The trust responsibility never completely disappeared,
however. In 1942, the Supreme Court held in Seminole Nation v.
United States that the U.S. should be held to the most exacting
fiduciary duty when handling trust funds. I will quote from the
Court at this time.
``Under a humane and self imposed policy which has found
expression in many acts of Congress and numerous decisions of
this Court, it has charged itself with moral obligations of the
highest responsibility and trust. Its conduct, as disclosed in
the acts of those who represent it in dealings with the
Indians, should therefore be judged by the most exacting
fiduciary standards.''
In 1970, President Nixon's message to Congress announced a
fundamental shift in Federal Indian policy, self-determination.
The message renounced the termination policy, established that
adherence to the Federal trust responsibility would now guide
Federal Indian policy, and proposed a structure to dramatically
reduce Federal control over internal Tribal relations by
recognizing greatly increased Tribal authority to manage
affairs on their reservations as a replacement for Federal
bureaucratic control.
Congress has generally adhered to the concepts of the trust
responsibility in virtually all modern Indian affairs
legislation, from 1971 with the Alaska Native Claims Settlement
Act to the present with various water settlements and the
Tribal Law and Order Act. Appendix 1 of my testimony lists many
of these statutes.
There have been no termination acts or similar statutes for
over 50 years. I have to thank Reid Chambers for reminding me
of this continually. This history of Executive and
Congressional voluntary adherence to a trust relationship is at
the heart of the Federal Tribal relationship in modern times. I
will add that the Solicitor General's decision making record in
acting as a trustee for Tribal interests since 1970, before the
Supreme Court, largely has been exceptional.
But not all is well with the trust responsibility.
Conflicts of interest undermine the Federal Government's duties
and the Supreme Court has enabled the Executive Branch to avoid
responsibility for consequences of trust breach to Indian
Country . I am the author and editor of a blog called Turtle
Talk where I have been following a lot of these conflicts of
interest and I am more than happy to talk about them during the
question and answer period.
And I will add, as you can see in my summary, that there
are many examples of this including the current relationship
with the, excuse me, the National Labor Relations Act as to its
application to Indian Tribes and casino interests, the conflict
within the Department of Interior about the San Francisco Peaks
and the trust responsibility in terms of, in that regard as
well.
I thank you for your time and for the Committee's
leadership in this area. I welcome your questions. Chi-
miigwetch.
[The prepared statement of Mr. Fletcher follows:]
Prepared Statement of Matthew L.M. Fletcher, Professor of Law/Director,
Indigenous Law and Policy Center, Michigan State University College of
Law
Appendix 1--Selected Acts of Congress in Indian Affairs Since 1970
American Indian Probate Reform Act of 2004
American Indian Religious Freedom Act of 1978
American Indian Trust Fund Management Reform Act 1994
Coal Leasing Amendments 2005
``Duro Fix'' (1991 Amendments to the Indian Civil Rights Act)
Indian Arts and Crafts Act of 1990
Amendments 2011
Indian Dams Safety Act 1994
Indian Education Act 1972
Indian Elementary and Secondary School Assistance Act 1970
Indian Employment, Training, and Related Services Demonstration Act
2000
Technical Corrections 2000
Indian Environmental Regulatory Enhancement Act of 1990
Indian Environmental General Assistance Program Act 1977
1992 amendments
1996 amendments
Indian Financing Act of 1974
1984 amendments
1988 amendments
2002 amendments
Indian Health Care Improvement Act 1976
1992 amendments to the Indian Health Care Improvement Act
extended the Title III self-governance demonstration to the IHS
and IHS programs.
Technical corrections 1996
Tribal Self-Governance Amendments of 2000-Title V of the
Act, making tribal self-governance permanent within the IHS
The amendments of 2000 also added Title VI to the Act,
requiring that the Secretary of HHS ``conduct a study to
determine the feasibility of a tribal self-governance
demonstration project for appropriate programs, services,
functions, and activities (or portions thereof) of the agency
[HHS].'' This Title applies to non-IHS programs administered by
the Department. Title VI also delineates what the Secretary
must consider in conducting the study and requires a joint
federal/tribal stakeholder consultation process.
Indian Gaming Regulatory Act of 1988
Indian Land Consolidation Act of 1983
Indian Mineral Development Act of 1982
Indian Self-Determination and Education Assistance Act
Tribal Self-Governance Demonstration Project Act 1991
In 1994, Congress amended the Act to create a permanent
self-governance authority in BIA.
1996 amendments to allow tribes to take over control and
management of programs in the DOI outside the BIA.
Indian Tribal Economic Development and Contract Encouragement Act
of 2000
Indian Tribal Energy Development and Self Determination Act 2005
Indian Tribal Government Tax Status Act of 1982
Native American Housing Assistance and Self Determination Act of
1988
Native American Housing Assistance and Self Determination
Reauthorization 2002
National Indian Forest Resources Management Act 1990
Omnibus Indian Advancement Act 2000
Tribal Law and Order Act of 2011
Appendix 2--Supreme Court Cases Since 1970: Federal Government's
Position
Supporting Tribal Interests as Amicus
Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970)
Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)
McClanahan v. Arizona State Tax Commission, 411 U.S. 154 (1973)
Tonasket v. Washington, 411 U.S. 451 (1973) (per curiam)
Mattz v. Arnett, 412 U.S. 481 (1973)
Puyallup Tribe, Inc. v. Dept. of Game, 414 U.S. 44 (1973)
County of Oneida, N.Y. v. Oneida Indian Nation of N.Y., 414 U.S.
661 (1974)
Antoine v. Washington, 420 U.S. 194 (1975)
DeCoteau v. District Court, 420 U.S. 424 (1975)
Bryan v. Itasca County, 426 U.S. 373 (1976)
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977)
Puyallup Tribe, Inc. v. Dept. of Game, 433 U.S. 165 (1977)
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)
Washington v. Yakima Indian Nation, 439 U.S. 463 (1979)
Idaho ex rel. Evans v. Oregon and Washington, 444 U.S. 380 (1980)
Washington v. Colville Confederated Tribes, 447 U.S. 134 (1980)
Central Machinery Co. v. Arizona State Tax Commission, 448 U.S. 160
(1980)
White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980)
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)
Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458
U.S. 832 (1982)
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)
Rice v. Rehner, 463 U.S. 713 (1983)
Solem v. Bartlett, 465 U.S. 463 (1984)
Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984)
Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985)
National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985)
Montana v. Blackfeet Tribe, 471 U.S. 759 (1985)
South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986)
Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987)
Duro v. Reina, 490 U.S. 676 (1990)
Oklahoma Tax Commission v. Citizen Potawatomi, 498 U.S. 505 (1991)
County of Yakima v. Yakima Indian Nation, 502 U.S. 251 (1992)
Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993)
South Dakota v. Bourland, 508 U.S. 679 (1993)
Hagen v. Utah, 510 U.S. 399 (1994)
Dept. of Taxation and Finance v. Milhelm Attea, 512 U.S. 61 (1994)
Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995)
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
Strate v. A-1 Contractors, 520 U.S. 438 (1997)
South Dakota v. Yankton Sioux Tribe, 522 U.S. 322 (1998)
Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523
U.S. 751(1998)
Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103
(1998)
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172
(1999)
C&L Enterprises v. Citizen Potawatomi, 532 U.S. 411 (2001)
Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001)
Nevada v. Hicks, 533 U.S. 353 (2001)
Inyo County v. Paiute-Shoshone Indians of the Bishop Indian
Colony, 538 U.S. 701 (2003)
Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005)
Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005)
Plains Commerce Bank v. Long Family Land and Cattle Co., 556 U.S.
316 (2008)
Opposing Tribal Interests as Amicus
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)
Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S.
237 (1985)
Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987)
Arizona Dept. of Revenue v. Blaze Construction Co., 526 U.S. 32
(1999)
El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999)
South Florida Water Mgmt. Dist. v. Miccosukee Tribe of Florida,
541 U.S. 95 (2004)
Appendix 3--Selected Cases in Which the United States Served as Trustee
to Tribal Interests
Colorado River Conservation Dist. v. United States, 424 U.S. 800
(1976)
Cappaert v. United States, 426 U.S. 128 (1976)
Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979)
Washington v. Washington State Commercial Passenger Fishing Vessel
Assoc., 443 U.S. 658 (1979)
United States v. Clarke, 445 U.S. 253 (1980)
Andrus v. Glover Construction Co., 446 U.S. 608 (1980)
Montana v. United States, 450 U.S. 544 (1981)
Arizona v. California, 460 U.S. 605 (1983)
Nevada v. United States, 463 U.S. 110 (1983) *
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* Nevada involved a federal conflict of interested in which the
Supreme Court relieved the government of its trust obligations to
Indian tribes where an Act of Congress authorizes the government to act
to the detriment of the tribal trust beneficiary. See Nevada, 463 U.S.
at 128 (``The Government does not `compromise' its obligation to one
interest that Congress obliges it to represent by the mere fact that it
simultaneously performs another task for another interest that Congress
has obligated it by statute to do.'').
---------------------------------------------------------------------------
Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545 (1983)
Escondio Mutual Water Co. v. La Jolla Indians, 466 U.S. 765 (1984)
Oneida Indian Nation of N.Y. v. Oneida County, N.Y., 470 U.S. 226
(1985)
Wyoming v. United States, 492 U.S. 408 (1990)
Montana v. Crow Tribe of Indians, 523 U.S. 696 (1998)
Arizona v. California, 530 U.S. 392 (2000)
Dept. of Interior v. Klamath Water Users Protective Assn., 532 U.S.
1 (2001)
Idaho v. United States, 533 U.S. 262 (2001)
United States v. Lara, 541 U.S. 191 (2004)
Carcieri v. Salazar, 555 U.S. 379 (2008)
Salazar v. Patchak, __ U.S. __ (2012) (pending)
Appendix 4--Selected Cases in Which the United States Defended against
Tribal or Indian Trust Breach or Other Claims
United States v. Southern Ute Indians, 402 U.S. 159 (1971)
Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128
(1972)
United States v. Jim, 409 U.S. 80 (1972)
United States v. Mason, 412 U.S. 391 (1973)
Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977)
United States v. Mitchell, 445 U.S. 535 (1980)
United States v. Sioux Nation of Indians, 448 U.S. 371 (1980)
United States v. Mitchell, 463 U.S. 206 (1983)
United States v. Dann, 470 U.S. 39 (1985)
United States v. Mottaz, 476 U.S. 834 (1986)
United States v. Cherokee Nation, 480 U.S. 700 (1987)
Hodel v. Irving, 481 U.S. 704 (1987)
Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S.
439 (1988)
Lincoln v. Vigil, 508 U.S. 182 (1993)
Babbitt v. Youpee, 519 U.S. 234 (1997)
Chickasaw Nation v. United States, 534 U.S. 84 (2001)
United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003)
United States v. Navajo Nation, 537 U.S. 488 (2003)
Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005)
United States v. Navajo Nation, 556 U.S. 287 (2009)
Appendix 5--Selected Provisions of the United Nations Declarations on
the Rights of Indigenous Peoples
Recognizing the urgent need to respect and promote the inherent
rights of indigenous peoples which derive from their political,
economic and social structures and from their cultures, spiritual
traditions, histories and philosophies, especially their rights to
their lands, territories and resources,
Article 4
Indigenous peoples, in exercising their right to self-
determination, have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and means
for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in
the political, economic, social and cultural life of the State.
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and
redress for:
(a) Any action which has the aim or effect of depriving them
of their integrity as distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 11
1. Indigenous peoples have the right to practise and revitalize
their cultural traditions and customs. This includes the right to
maintain, protect and develop the past, present and future
manifestations of their cultures, such as archaeological and historical
sites, artefacts, designs, ceremonies, technologies and visual and
performing arts and literature.
2. States shall provide redress through effective mechanisms, which
may include restitution, developed in conjunction with indigenous
peoples, with respect to their cultural, intellectual, religious and
spiritual property taken without their free, prior and informed consent
or in violation of their laws, traditions and customs.
Article 19
States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free, prior and informed consent
before adopting and implementing legislative or administrative measures
that may affect them.
Article 20
1. Indigenous peoples have the right to maintain and develop their
political, economic and social systems or institutions, to be secure in
the enjoyment of their own means of subsistence and development, and to
engage freely in all their traditional and other economic activities.
2. Indigenous peoples deprived of their means of subsistence and
development are entitled to just and fair redress.
Article 23
Indigenous peoples have the right to determine and develop
priorities and strategies for exercising their right to development. In
particular, indigenous peoples have the right to be actively involved
in developing and determining health, housing and other economic and
social programmes affecting them and, as far as possible, to administer
such programmes through their own institutions.
Article 25
Indigenous peoples have the right to maintain and strengthen their
distinctive spiritual relationship with their traditionally owned or
otherwise occupied and used lands, territories, waters and coastal seas
and other resources and to uphold their responsibilities to future
generations in this regard.
Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise
used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or use,
as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure systems of
the indigenous peoples concerned.
Article 27
States shall establish and implement, in conjunction with
indigenous peoples concerned, a fair, independent, impartial, open and
transparent process, giving due recognition to indigenous peoples'
laws, traditions, customs and land tenure systems, to recognize and
adjudicate the rights of indigenous peoples pertaining to their lands,
territories and resources, including those which were traditionally
owned or otherwise occupied or used. Indigenous peoples shall have the
right to participate in this process.
Article 28
1. Indigenous peoples have the right to redress, by means that can
include restitution or, when this is not possible, just, fair and
equitable compensation, for the lands, territories and resources which
they have traditionally owned or otherwise occupied or used, and which
have been confiscated, taken, occupied, used or damaged without their
free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned,
compensation shall take the form of lands, territories and resources
equal in quality, size and legal status or of monetary compensation or
other appropriate redress.
Article 29
1. Indigenous peoples have the right to the conservation and
protection of the environment and the productive capacity of their
lands or territories and resources. States shall establish and
implement assistance programmes for indigenous peoples for such
conservation and protection, without discrimination.
2. States shall take effective measures to ensure that no storage
or disposal of hazardous materials shall take place in the lands or
territories of indigenous peoples without their free, prior and
informed consent.
3. States shall also take effective measures to ensure, as needed,
that programmes for monitoring, maintaining and restoring the health of
indigenous peoples, as developed and implemented by the peoples
affected by such materials, are duly implemented.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands or
territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior
to the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair
redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 40
Indigenous peoples have the right to access to and prompt decision
through just and fair procedures for the resolution of conflicts and
disputes with States or other parties, as well as to effective remedies
for all infringements of their individual and collective rights. Such a
decision shall give due consideration to the customs, traditions, rules
and legal systems of the indigenous peoples concerned and international
human rights.
The Chairman. Thank you very much, Mr. Fletcher.
Mr. Rey-Bear. please proceed with your testimony.
STATEMENT OF DANIEL REY-BEAR, PARTNER, NORDHAUS LAW FIRM LLP
Mr. Rey-Bear. Chairman, Vice Chairman, Members of the
Committee, thank you all for very much for paying attention to
the important issues that are presented here. Thank you,
Senator Udall, for your kind introduction.
This hearing presents basically three questions. What is
the trust responsibility? What is the problem, if any? And
what, if anything, should be done about it?
In this, I am guided by the recognition that if there is no
trust responsibility or no meaningful trust responsibility,
little else matters. So because of this, I am addressing
foundational issues but not also important policy issues that
flow from them, for example, regarding the Carcieri fix, energy
resource development, tax policy, the HEARTH Act, facts and so
forth.
So, what are the foundational principles? One, the trust
responsibility, as noted at the outset, is founded on settled
international law. The United States necessarily assumed
meaningful fiduciary duties over Indian Tribes, regarding
Indian Tribes, which remain sovereign. Second, Tribes fully
bought and paid for meaningful, ongoing trust responsibility
via land cessions and peace. Third, strict ``fiduciary trust''
duties, in the words of the Department of Interior, extend
beyond express statutory and regulatory mandates because that
is simply the nature of the relationship.
And finally, while the relationship has sometimes been
described as a guardianship, it properly should not be. But
even it if were, that merely supports self-determination of
Tribes as recognized by Congress repeatedly, and in the United
Nations Declaration on the Rights of Indigenous Peoples.
So, what is the problem regarding these foundational
issues? Well, the problem is that in Indian trust cases, where
Tribes seek to enforce the responsibility, that the Executive
Branch has repeatedly misrepresented facts and law in efforts
to avoid liability. This is not simply an issue that comes up
in these cases, but is an issue that undermines Federal and
Tribal working relationships that should be more aligned.
Just to give a few examples. No fewer than seven times
Federal courts have expressly rejected the argument by the
Executive Branch that there are no fiduciary duties whatsoever
beyond express statutory and regulatory mandates. No fewer than
15 times have Federal courts expressly rejected the Federal
argument that an arbitrary and capricious standard of care
applies, instead of strict fiduciary duties.
And in the Navajo Nation case and in the Jicarilla Apache
Nation case, two recent cases by the Supreme Court, the United
States misrepresented their own regulations, their own
established policy, in order to achieve a desired result.
So, what is the solution? In essence, it is to reaffirm the
full meaning of the trust responsibility. As happened
previously with the Cobell litigation, the fact that there is
pending litigation does not preclude meaningful Congressional
oversight.
As noted already by another speaker, first and foremost
Tribes themselves must be consulted. It is also notable that
there is the pending Secretarial Commission on Indian Trust
Administration and Reform. Pending such consultation and such
input from the Commission, I can only offer a few preliminary
suggestions for the Committee in terms of oversight to the
Executive Branch.
First, the Executive Branch must stop disregarding history
and express Congressional directions in denying that meaningful
fiduciary duties exist. As a related matter, the Executive
Branch must stop asserting that an arbitrary and capricious
standard applies rather than strict fiduciary duties.
Second, the Executive Branch must acknowledge that the
trust responsibility supports, and does not conflict, with
self-determination.
Finally, for situations where there are conflicts of
interest, because they can in fact happen, because Congress
indeed does impose them sometimes, for example, in the
situation with the NRLB and San Francisco Peaks, I recommend
re-establishing the practice of split briefing so that at least
some part of the Executive Branch can adhere to the trust
responsibility.
In sum, I simply ask that the Executive Branch
consistently, as it does most of the time, respect the
foundation and restore the honor to defending the trust
responsibility.
I would be happy to take any questions.
[The prepared statement of Mr. Rey-Bear follows:]
Prepared Statement of Daniel Rey-Bear, Partner, Nordhaus Law Firm LLP
The Chairman. Thank you very much, Mr. Rey-Bear.
To the panel, as you know, fixing the Carcieri decision is
one of my top priorities. My question to this panel is, what is
your view on how the Carcieri fix will strengthen the Federal
Government's trust relationship with Tribes? Ms. McCoy?
Ms. McCoy. Thank you, Mr. Chairman. I think it is important
that Congress proceed to address the situation in the wake of
the decision that has put the matter back to Congress. And I
think it is important that, again, it goes back to the history
and what can be done, I think, to treat all Tribes equally and
fairly with their most important resource, the land.
So, we urge again, you know, that the work that needs to
done to accomplish that continue to be done in consultation
with Tribes on that.
The Chairman. Thank you very much. Mr. Fletcher?
Mr. Fletcher. Thank you for that question, Mr. Chairman.
The Carcieri case is near and dear to my heart. I am a member
of a Michigan Tribe, one of six that had been administratively
terminated. We are all treaty Tribes and the Department of the
Interior in the 1870s chose not to return our phone calls
anymore, for about 100 years. As a result, Carcieri potentially
has applicability to some of the Michigan Tribes.
I think that a Carcieri fix, especially a simple one,
simply reversing the Supreme Court's decision, would accomplish
a very important task which is for Congress to demonstrate to
the United States Supreme Court how serious they are in their
trust relationship.
Carcieri is a direct rejection of the Department of
Interior's seven decade long interpretation of Section 5 of the
Indian Reorganization Act. Seven decades of consistent
regulatory interpretation of the statute. And the Supreme Court
said that it is fundamentally irrelevant to our decision.
And I think for Congress to fix Carcieri would be a
statement, not only on the question of Carcieri, but from
Congress directly to the Supreme Court saying we are very
serious about the trust responsibility and we are very serious
about reducing the Supreme Court's interference in the trust
responsibility. Thank you.
The Chairman. Thank you very much. Mr. Rey-Bear?
Mr. Rey-Bear. I completely agree with the comments that
have been made already. I would only add that the importance of
enacting Carcieri fix legislation, I think, is well illustrated
by the fact that it will significantly help enhance prospects
for Tribal self-determination and economic development and it
will cost taxpayers nothing.
The Chairman. Thank you. I agree with you that fixing
Carcieri is vital. It is vital to ensuring a strong trust
relationship. I want to announce that a report on this 676, the
Carcieri Fix legislation, is being filed today and will contain
a great deal of information based on the record built by this
Committee on the need for this legislation to pass this
Congress. We will be working diligently on that.
Let me now ask other members for their questions and I may
be back with further questions. Vice Chairman Barrasso?
Senator Barrasso. Thank you, Mr. Chairman. And like you, I
have a question for the panel.
Recently, the Government moved to settle trust
mismanagement disputes with 41 Tribes, I think totaling over $1
billion. Will this large settlement address many of the
outstanding mismanagement claims by Tribes against the
Government or are there still many pending claims that need to
be resolved beyond this?
Ms. McCoy. Mr. Vice Chairman, I appreciate the question.
The landscape of the cases, I think, is such at this time. At
one point, there were over 100 pending cases and the previous
Administration settled three of those. And from 2010 to 2011,
this Administration settled another three. And then, most
recently, another 42 were announced. So, I think that cuts the
number in half of the pending cases.
Back in 1996, Arthur Andersen contract reports on the
effort to reconcile the Tribal Trust Funds were distributed to
311 Tribal account holders. So, that seems to put the number of
Tribes that chose to bring claims to about one-third of the
Tribal account holder population.
Senator Barrasso. The 100 of the 300, one-third.
Ms. McCoy. That is correct.
Senator Barrasso. Well, some of the, if anyone wants to
jump in on that, or another question. Mr. Rey-Bear, did you
have something you wanted to add to that?
Mr. Rey-Bear. Yes.
Senator Barrasso. Go ahead.
Mr. Rey-Bear. As I believe may have been noted earlier,
there are about 100 Tribes that filed breach of trust claims.
Forty or so have been settled.
Senator Barrasso. Yes.
Mr. Rey-Bear. So, there are quite a number that are
pending. In particular, the Nordhaus Law Firm where I work
represents the Navajo Nation which has the largest claims of
any Tribe. We also represent the Pueblo Laguna, which has
substantial claims in large part because of what was at one
time the world's largest open pit uranium mine. Ms. Atcitty
will be testifying on behalf of the Jicarilla Apache Nation.
Their case is also pending. In particular, the Jicarilla Apache
case had a trial last November for which closing argument is
scheduled in two weeks. A decision in that case is expected
this year.
Senator Barrasso. So, half of them are settled,
essentially. Are the other half that are left over much more
complicated or simpler? Or how do you weigh this so we get a
better understanding of what is still out there?
Mr. Rey-Bear. I would say both are still pending, both
types of claims are still pending.
Senator Barrasso. You know, some of these mismanagement
lawsuits are based on the claim that the Government has sold
Tribal resources for below fair market value in violation of
really what would be a trust responsibility. You know, sold too
low.
Is this a problem that is still occurring today even as we
go on, or is the Government taking the proper precautions now
to make sure that it is no longer happening, so we do not face
additional problems and suits? Anyone have a thought?
Mr. Rey-Bear. I hesitate to make a categorical statement,
but the situation has certainly improved in large part because
of the increased capacity of Indian Tribes to essentially
police what the United States does.
Senator Barrasso. Okay. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Barrasso. Senator Udall?
Senator Udall. Thank you, Chairman Akaka. And this
question, couple of questions, are just for the first panel
here in general.
Many of you mentioned the recent Jicarilla Supreme Court
decision in your testimony and I would like to open up a little
more discussion on that. What do you believe the current and
future impact of the Jicarilla decision will be? Does the
Jicarilla decision erode Tribal rights and/or Federal trust
responsibility to Tribes? And do you believe the Jicarilla
decision needs a legislative fix and what would that
legislative fix look like?
Mr. Fletcher. I will speak generally about the Jicarilla
decision. I follow the Supreme Court's pronouncements on Indian
law pretty carefully.
Jicarilla is a case of relatively limited precedential
value. But its statements about the trust responsibility are
incredibly broad and, for the first time since, well, perhaps
for 20 or 30 or many more years than that, the Supreme Court
has begun to cite to a case called Lone Wolf versus Hitchcock,
which is the classic case of establishing or recognizing a form
of guardian-ward relationship between the Federal Government
and Indian Tribes.
Now, a ward suing a guardian really has no authority, has
no right to force any kind of activity or certainly to win
money damages for a breach of a guardianship whereas the trust
beneficiary does. Now, if the Supreme Court is starting to
rethink the trust relationship as more of a guardian-ward
relationship and to limit it, Jicarilla is really a bell
weather for future trust cases and it gives you a sense of
where the Court is heading in that direction. And for Tribal
interests, it is not very good.
Senator Udall. Do the other two panelists, do you have any
thoughts on that?
Ms. McCoy. I think part of this stems from the, it is such
a unique relationship. We have a sovereign, the United States,
serving as a trustee for another sovereign, the Indian Tribes.
And there really is no comparable. So, it puts a seemingly
ordinary relationship in these extraordinary situations.
I think that the history is important. I mean again, I will
go back to, if the Indian Claims Commission in three decades,
when Tribes were allowed an opportunity to present their claims
and that resulted in awards of $1.2 billion and we are seeing
the settlements now also over $1 billion to Tribes that have
brought their claims, something about that says something that
these matters can be addressed.
As far as the future and the Supreme Court's rule on that,
this Supreme Court does not need the United States Government
to guide its views on Indian rights. But, that tends to happen.
Mr. Rey-Bear. The short answer is, it depends. There are
practical implications. Part of my own practice, apart from
litigating breach of trust claims, is handling trust
acquisitions for Tribes. For a dozen years, when I would do
this, in the process of handling these matters we would have to
address title issues raised by preliminary title opinions. And,
as a matter of course, the Department of Interior and the
Bureau of Indian Affairs would provide those so that I, as the
attorney for the Tribe, would know what title issues needed to
be resolved to complete a transaction.
Ever since the decision by the Federal Circuit in this
case, the United States has stopped providing those preliminary
title opinions because, as they stated it, they are attorney-
client privileged communication that I am not allowed to see.
So, that is just one practical working relationship sort of
impact.
Since the remand, the United States has used the decision
to specifically argue that that decision essentially overturned
decades of substantial case law, including case law that
specifically recognizes Congressional legislation. For example,
the Indian Trust Reform Act specifically holds and recognizes
that the United States must maximize revenue from Indian Trust
Funds. The United States has argued in cases that,
notwithstanding that express Congressional statute, it has no
such duty because of the Jicarilla decision by the Supreme
Court.
So, there can be substantial impact. However, it depends on
how the Executive Branch acts going forward. If they reform, so
to speak, then there should not be an impact.
In essence, to quote Peterson Zah as stated in my written
testimony, we need protection from our protector. And when the
Executive Branch does not protect the interest of Tribes, we go
to the Supreme Court. And now that the Supreme Court has said
that it is not willing to protect the Tribes, the Tribes
understandably come back to Congress.
Senator Udall. Yes, and I think that it is fair to say that
there was a period in history where the Supreme Court was
really a champion in terms of Native rights and now it has
turned the other way and, in may cases, I think, the pleas fall
on deaf ears.
So, thank you for those answers. Thank you, Chairman Akaka.
The Chairman. Thank you very much, Senator Udall.
I do have a question for each of you. Ms. McCoy, the Native
American Rights Fund has been instrumental in working with the
Tribes over the years in litigation and protecting the scope of
the trust responsibility. What do you think we in Congress can
do to ensure the trust responsibility is as strong as it needs
to be throughout the Federal Government?
Ms. McCoy. Mr. Chairman, again I will emphasize that it
really, while NARF works with Tribes, we do not speak for them.
And I urge, I urge the Committee and Congress to seek these
answers from the Tribes themselves. That is the only way to
really implement the government-to-government relationship. I
am happy to facilitate that but I think the answer best comes
from the Tribes.
And I appreciate Mr. Rey-Bear's reference, too, to the new
Secretarial Commission on Indian Trust Administration and
Reform. The Native American Rights Fund, on behalf of its
clients, looks forward to working with that Commission which is
charged with advising the Secretary of the Interior but which
can also, of course, the work of the Commission can be shared
with Congress and that would be specifically on the nuts and
bolts trust issues that I had talked about, the trust accounts,
the trust funds, the trust assets.
Getting into other areas of the trust, education, health,
and many other areas, Tribal courts and things like that, I
think there are processes in place for that. And it is an
ongoing relationship and as Tribal nations evolve, so must this
Nation to step up and deal with that.
It is a difficult task but it can be done. So, we
appreciate opportunities like this hearing, and the Tribe
leaders that are going to speak on the next panel, to really
direct the work of this Committee.
The Chairman. Thank you. Thank you. Mr. Fletcher, I know
you host a blog that provides information on ongoing litigation
and legal issues to Indian Country . My question to you is, how
would you characterize the state of the trust relationship
today based on your analysis and what improvements could be
made to strengthen the trust relationship?
Mr. Fletcher. Thank you for the question. Yes, we have been
watching what has been going on in Indian Affairs for the last
several years. The blog started in September 2007.
The first thing I would have to say, and it sounds like I
may sound like what I am going to say is facetious, but I am
very serious. I do not envy the Federal Government in its
obligations toward Indian Tribes and Indian Nations and its
trust responsibility. It is rote with inherent conflicts of
interest. You could say they are both vertical and horizontal
in that the Federal Government, especially the Executive
Branch, must deal with conflicts between Tribes, within Tribes.
These are conflicts that are not necessarily areas in which the
Federal Government has a dog in those fights. But, in some
cases, the Federal Government's actions historically have
created these fights.
The other conflicts, of course, are within the Federal
Government itself, most obviously within the Department of
Interior where you have, perhaps, I do not know, the
Environmental Protection Agency has a view in protecting the
environment and the Bureau of Indian Affairs in relation to its
trust responsibility to Indian Tribes that may conflict with
the EPA on something.
And we see that almost every week. Another case, another
conflict arising, maybe in the news or maybe in a new decision
that has come out. And what we are seeing, I think, are these
conflicts are becoming, maybe, they are becoming much more
serious, I think in part because Congress and the Executive
Branch are taking their trust responsibilities seriously in
most instances.
What you are seeing, however, is a clampdown, certainly, on
any kind of claims by Indian Tribes for money damages.
Absolutely, a clampdown. And what Mr. Rey-Bear is talking about
in terms of the actions of the Department of Interior and other
Federal agencies in some of these cases has been going on a
long time. Judge Lamberth in the early years, really the first
10 years of the Cobell litigation, repeatedly raised these
issues of sort of, you know, dirty pool in litigation between
Tribes and individual Indians and the United States.
I think a couple of things that we are seeing, that we are
going to see in the future that are very, very serious involve
the natural resource extraction and environmental protection.
There are a lot of Tribes around the United States that have
been sitting on natural resources for a long time. Sometimes,
those resources have been stolen out from underneath them and
they are only now beginning to take control over those
resources and begin to actually profit from them in a way that
they normally should. And, at the same time, some of those
resources are direct contributors to climate change and global
warming as the best science would tell us.
And so, and I have to do a call-out to my colleague
Professor Singel again, who gave a talk recently at Montana Law
School where she talked specifically about this new phenomenon,
maybe it has been around for a while, but a newly important
phenomenon called fracking. We do not know what the impacts of
fracking are. A lot of it is going on in Indian Country. It is
incredibly lucrative. But there have been reports that fracking
has polluted drinking water extensively and perhaps even caused
earthquakes here in D.C., although who knows.
And so you see this kind of conflict. There are going to be
interTribal conflicts and there are also going to be
interagency conflicts. I would just conclude with I do not envy
the Federal Government in this way because these are very
complex and difficult issues.
I know that Congress, in assessing priorities, can do a
great deal of important work in this area. And I think probably
perhaps, and I mentioned this before, perhaps its greatest
impact may be to reconsider some of the cases that the Supreme
Court has decided recently in terms of the trust responsibility
and to just remind the Supreme Court that Congress and the
Executive Branch, and particularly Congress, are really the
primary interpreters of the Federal Indian law and policy and
they are the policymakers in this question, not the judiciary.
Thank you.
The Chairman. Thank you very much, Mr. Fletcher. Let me
make this my final question to Mr. Rey-Bear. What would you
consider the lessons learned from the Jicarilla case and what
actions would you like to see from Congress or the
Administration following the Jicarilla decision?
Mr. Rey-Bear. The cynical answer, unfortunately, is that
when called to task for violations of fiduciary duties, the
Executive Branch cannot be trusted to act honorably in its own
defense. Its own departmental manual specifically requires
informing Tribes and communicating with Tribes regarding the
administration of their trust assets. And a Secretarial Order
specifically recognizes that the administration of trust assets
necessarily includes solicitor's opinions.
Notwithstanding the established policy of the Department of
Interior which is mandatory and failure to comply with can
result in termination, the Department of Interior, through the
Department of Justice, argued that it had no such duty to the
Supreme Court. So, that is one effect of the decision.
As I noted already, it undermines working relationships
with Tribes and the Federal Government when they should be
aligned, for example, with the trust acquisition process that I
noted already but also in disputes with third parties.
Essentially, if the Federal Government does not take its trust
responsibility seriously, why should anybody else?
In terms of what Congress can do, I agree with the
statement made already by Professor Fletcher that now is the
time for Congress to reassert that, under the Constitution, it
is Congress which is the primary repository for setting policy
regarding Indian Tribes. The Indian Commerce Clause is in
Article I, not in Article III. And so, that should be clear and
the Supreme Court should respect Congress' authority, just as
the Executive Branch should.
The Chairman. Thank you, Mr. Rey-Bear.
Are there any further questions?
Senator Udall. Mr. Rey-Bear, if I could just ask one. Did
you not mention the practice of split briefing in your
testimony and how that was successful in the 1970s? Could you
expand on that for the Committee and describe how this was
successful and why the process was stopped and then what the
current benefit of split briefing would be for the Tribes?
Mr. Rey-Bear. The practice was instituted in the 1970s
essentially as a stopgap measure, sort of an administrative way
to implement a policy recommended by President Nixon in his
Special Message to Congress in 1970 which called for
establishment of what was to be called an Indian Trust Counsel
Authority. The idea being that, recognizing that the United
States sometimes has conflicts, there should be a specific
representation of Tribes by the Federal Government which
adheres to the trust responsibility, even if there are
conflicts.
So, what happened was that there was essentially an
agreement between the Department of Interior and the Department
of Justice, at the behest of the White House, providing that
where there was a conflict between agencies, for example the
Bureau of Indian Affairs representing Tribes and another
agency, I cannot recall the specifics but an example current
day might be the National Labor Relations Board. Where this is
a difference of opinion, the Department of Interior would file
a brief sort of respecting the trust responsibility for Indian
Tribes and the other agency, through the Department of Justice,
would file their brief stating the opposite position. And in
the six cases where this was done, every single time the Tribal
position prevailed.
The practice was stopped at the behest or direction of
Attorney General Bell in 1979. I do not know what the specific
reasons were, but I think it is notable that the policy behind
it regarding the Indian Trust Counsel Authority was not enacted
by Congress in large part because the Executive Branch
represented that it was not necessary because the Executive
Branch knew what its trust responsibilities were and it would
respect them in litigation.
So, the benefits for the current day are in situations like
San Francisco Peaks and the NLRB situation.
Senator Udall. Mr. Fletcher, you look like you might have a
comment on that, or not.
Mr. Fletcher. I do not know the specifics. I had not heard
about the split briefing. I think it is a great idea. I do also
recognize that I think Tribes are in a much better position to
state their own positions on the trust responsibility in the
Supreme Court and in Federal courts as amice and as interveners
as well. That is probably, possibly a big change as well. But I
am in total agreement with Mr. Rey-Bear.
Senator Udall. Thank you. I do not have any additional
questions for this panel.
The Chairman. Well, thank you very much, first panel. Thank
you for your answers and you have been helpful. We may have
further questions for you that we will place in the record and
there also may be some from some other members of the
Committee.
So, thank you very much for being here.
I would like to invite the second panel to the witness
table.
The Honorable Ray Halbritter, Nation Representative of the
Oneida Indian Nation from Verona, New York, the Honorable Fawn
Sharp, President of the Quinault Indian Nation in Taholah,
Washington, the Honorable Brooklyn Baptiste, Vice Chairman of
the Nez Perce Tribe in Lapwai, Idaho, and Ms. Shenan Atcitty,
Legal Counsel here on behalf of President Pesata of the
Jicarilla Apache Nation in Dulce, New Mexico. Unfortunately,
the President, as was mentioned earlier, was unable to be here
with us today.
So, welcome, Mr. Halbritter, please proceed with your
testimony.
STATEMENT OF RAY HALBRITTER, NATION REPRESENTATIVE, ONEIDA
INDIAN NATION
Mr. Halbritter. I commend this Committee for holding this
hearing as the topic is both complex and fundamental to the
unique relationship of our governments. The consequences of a
half-hearted and flawed implementation of the trust
responsibility are many. But the resulting impact on Tribal
sovereignty is a central concern to Tribal governments across
the United States.
Although this Congress and the current and some past
Administrations have been generally supportive of Tribal
sovereignty and have aspired to honor the trust relationship,
States and local governments often contradict and resist the
uniquely Federal relationship, instead often exploiting
opportunities affirmatively to undermine it.
In the case of the Oneida Nation, our trust relationship
begins with our being the United States' first ally in the
Revolutionary War. The United States' obligations derive from
the Treaty of Canandaigua, which was signed in 1794 by our
friend, President George Washington. The United States
continues to recognize our Treaty of Canandaigua, among the
oldest of still valid treaties.
It says two things that are mostly relevant for today's
hearing. First, the Treaty states that the United States
acknowledges the lands of the Oneida, called our reservation,
to be our property, and the United States will never claim our
lands, nor disturb us in the free use and enjoyment of our
lands.
We agreed also to the following key provision from the
Treaty. Less the firm peace and friendship now established
should be interrupted by the misconduct of individuals, the
United States and Six Nations agree that for injuries done by
individuals on either side, complaint shall be made by the
party injured to the other and such prudent measures shall then
be pursued as shall be necessary to preserve our peace and
friendship unbroken. Significantly, the Treaty of Canandaigua
provides safeguards to both parties, the Oneida Nation and the
United States.
As contemplated by the treaty, when non-Federal parties
overreach, such as in the case of New York's use of its own tax
codes to stop transfer of the lands into trust, the duty of
addressing those issues falls on the United States pursuant to
its treaty obligations. The United States sometimes fulfills
its obligations, oftentimes it does not and, when it does, it
frequently comes after the damage is done.
In response to my insistence that local counties follow the
law with respect to the nation's sovereignty, the Chairman of
the Madison County Board used the public platform of official
state of the county address to incite extremist and dangerous
reactions against our nation, referring to me as a third world
dictator, with language which in turn directly affects the
quality of life of our members and more particularly our
children in the communities and schools where we are trying
best to live peacefully and together.
In light of the harsh realities faced by Indian nations
within our local communities, this may be an opportune time for
the United States to work with Indian nations to develop a
framework to ensure the Federal Government's fulfillment of its
trust obligation. There is substantial evidence that empowering
Tribal governments leads to economic success, providing many
benefits to surrounding communities. In the Oneida situation,
the Federal Government's own independent economic study
concluded that due to the presence of the Oneida Nation, local
communities received back $16.94 per dollar.
Some Tribes like the Oneida Nation have assumed important
governmental functions. For example, creating court systems,
fire protection, emergency service, housing and educational
programs. That also relieves, as a result of this the Tribes
also relieve local governments from having to spend their
government dollars spending money on those programs. It is a
multiplier effect showing real benefits when communities work
together.
We respectfully submit that this Committee ensure that our
discussion today leads to the development of a new and
constructive paradigm to guide Indian nations and the United
States for the next future generations by creating a new
bipartisan American Indian Policy Commission.
Our recommendations to the commission would address how the
trust relationship would work to ensure an acceptable level of
habitability on the present reservations, on the poorest
reservations, including the adequacy of education, healthcare,
public safety and infrastructure.
It could also address how the trust relationship could work
to empower Indian nations that are on the cusp of economic
self-sufficiency to redefine their trust relationship to fit
their needs of success.
The charge to the commission should not be finalized
without additional consideration but it could also include
recommendations regarding an appropriate mechanism to ensure
that the funding of critical Indian programs are not subject to
arbitrary reductions, potential legislation to create a strong
presumption in favor of land being accepted into trust at the
request of the Tribe, and the potential establishment of
additional high level positions within the Administration to
represent Indian Country .
This Committee has already played a central role in
advancing this discussion through this hearing and for that, we
thank you.
[The prepared statement of Mr. Halbritter follows:]
Prepared Statement of Ray Halbritter, Nation Representative, Oneida
Indian Nation
The Chairman. Thank you very much, Mr. Halbritter.
President Sharp, would you please proceed with your
testimony.
STATEMENT OF HON. DAWN SHARP, PRESIDENT, QUINAULT INDIAN NATION
Ms. Sharp. Thank you, Chairman, distinguished Members of
the Committee. We truly appreciate the opportunity to appear
before you today.
I represent not only the Quinault Indian Nation, but am the
President of the Affiliated Tribes of the Northwest Indians.
And I also have a unified and complementary role as Chairman of
the new Trust Commission on Administration and Reform. So, I
hope to interweave perspectives into this presentation and
testimony, representing all three of those hats that I
currently wear.
I would like to begin by addressing the relationship itself
that Indian Tribes have with the United States Government. And
then I want to speak a little to the natural resources, and
then wrap it up with our people.
The relationship itself, we have determined out of the
Northwest, out of the Quinault Indian Nation as well as
beginnings of a discussion towards that end at the Commission
that we need to define trust and trusteeship. It is long
overdue for a very clear, succinct definition of what that
means, not only what it means in the minds of those in this
Congress, in the minds of those sitting on the U.S. Supreme
Court, but first and foremost, in the minds of Indian people
and Tribal leaders.
To that end, we are working toward out of the Northwest
through a series of sovereignty summits and meetings at the
Affiliated Tribes of Northwest Indians, in concert with USET,
to come up with a definition of trust and trusteeship from our
perspective. And we believe that will be very helpful to not
only this Congress, but the Court and others to define our
perspective.
Right now, that definition has been diluted, and as pointed
out by Senator Udall, it is being further eroded through this
term of the Congress. The old definition is based on this
notion of dependency, it is based on this notion of
incompetency, that we are wards of a guardian.
We have always been very capable of managing our own
affairs from the beginning of time. We have always been a
competent people. We had very complex ecosystems that we
managed as good stewards. We had very sophisticated economic
structures within our communities. We had trade. We had many
good things in our communities. It was only with the imposition
of another sovereign into our lands and territories that
corrupted that value system, that continues to corrupt that
value system.
This last Congress, a bill was passed in the House
purporting to convey 2,400 acres to a multi-national
corporation outside of the United States to mine copper in an
area that is very sacred to the San Carlos Apaches. It is a
place where they continue to do sacred dances. It is a place
where they continue to gather traditional foods. An acorn that
takes 100 years to mature in that area is threatened to be
desecrated for profit, for gain, not to benefit those within
this Country but to benefit those outside of the United States.
It is a sad commentary that in this modern time, even over
the objections of Indian people and our leadership, we continue
to see an erosion not only in Congress but in the courts and
even within the Administration. There are many good friends
that we have been able to ally with within the Administration.
Some that have good hearts, good minds, that see things from
our value systems.
But there is a structure in place that, even with the best
of intentions and even with the best mind and heart, they are
still incapable of discharging their duties along that sacred,
solemn commitment that the United States has with Indian
people. It is that Federal bureaucracy that needs change.
And it needs change that is guided by sound principles that
are deeply rooted within the values of our people so that we
can not only set a good example for today to correct the past
wrongs, but that we lay a strong foundation for future
generations, that when they look back at this era and this
time, they will see that it was that point in history when the
United States not only recognized the past wrongs, but truly
viewed Indian people as equal sovereigns with their own unique
set of values and principles.
Joe DeLaCruz, our Chair at Quinault, once stated that there
is no right more sacred than a people to freely govern their
lands, their people, their territories without external
interference. Right now, even with self-governance, we are
simply managers of Federal dollars. Under 638, we administered
Federal dollars. We now manage. We cannot spend those dollars
in a way where we can freely determine our future because of
the bureaucratic barriers that we continue to confront today.
So, with having an opportunity to be able to come to this
Congress to redefine that relationship and set a new course, we
believe that we are at a post self-governance era. We will
always be self-determining, but we need to set a new course on
the relationship and the definition, and that includes engaging
with this Congress on agreements, renewed agreements, to build
that stronger foundation.
So, on behalf of the Quinault Nation, the Affiliated Tribes
of the Northwest Indians and the Trust Commission, we thank you
for this opportunity.
[The prepared statement of Ms. Sharp follows:]
Prepared Statement of Hon. Dawn Sharp, President, Quinault Indian
Nation
Good afternoon distinguished Committee Members and esteemed
witnesses joining me today to provide testimony on Fulfilling the
Federal Trust Responsibility: The Foundation of the Government-to-
Government Responsibility. My testimony addresses this topic from
several, unified perspectives: as the President of the Quinault Indian
Nation and President of the Affiliated Tribes of Northwest Indians
regarding natural resources under authorities of Self-Determination and
Self-Governance, and as the Chairperson of the Secretary of the
Department of the Interior's National Commission on Indian Trust
Administration and Reform.
First and foremost I would like to applaud this Committee for
continuing such a vigilant effort to address the plethora of
disparities Indian people are forced to deal with on a daily basis. It
is because of these hearings and the Roundtable Sessions that Congress,
the Administration and the American public are being educated about our
issues. Mase' [Thank you]!
Prologue and Vision
Five centuries ago, Europeans relied upon the notion of the
``Doctrine of Discovery'' to provide a quasi-religious, political
justification for colonialism. This Doctrine led to the expropriation
and exploitation of the natural resources of this land with little
regard for the impacts on the cultures and economies of the Indian
peoples that had relied upon for them for countless millennia.
When the United States was founded two and a half centuries ago,
alliances were sought with Tribal nations to try to free the colonies
from European powers. For nearly a half century after Independence, the
United States entered into treaties to formalize relations with Tribal
nations. In exchange for promises to protect Tribal peoples from
depredation and provide for their needs, Tribal nations relinquished
claims of title to their traditional territories and agreed to relocate
to small areas of land that were to be set aside for their exclusive
use and occupancy. These promises, and subsequent laws such as the
General Allotment Act, form the foundation of the trust responsibility,
a concept that was rooted in the fundamental notion that Tribal nations
are dependent on the largesse of the dominant government, somehow
incompetent and incapable of managing their own affairs.
Yet, even the solemn treaty promises of the United States were
broken repeatedly.
Treachery, fraud, and corruption of Indian agents assigned
to serve the needs of reservation communities were common.
Indian children were removed from their homes and placed in
boarding schools where they were forbidden to speak their
native languages.
As non-Indians coveted the land and resources such as gold
which were found on reservations, Tribal nations were forced to
relocate or accept diminished land bases.
Tribal lands were flooded to create reservoirs to provide
water and power and to try to protect non-Indian property.
A policy of allotment was adopted to ``civilize'' Indians
while opening reservations to settlement and development by
non-Indians. The confused and complex ownership and occupancy
of Indian reservations created a jurisdictional morass that
allows developers to ignore laws and regulations intended to
protect the environment and perpetrators of crimes such as rape
or the manufacture and distribution of illegal substances to
evade prosecution.
Tribal lands have become dumping grounds for hazardous
materials that non-Indian communities would not tolerate.
Tribes are being required to compensate for environmental
deterioration caused by non-Indian development on and off
reservations, infringing upon our prerogatives to utilize
reservation resources for the benefit of our own communities.
When the duty to fulfill treaty obligations became
burdensome, the United States pursued a policy of termination
to try to ``get out of the Indian business''.
Until just a few decades ago, when a new era of Self-Determination
and Self-Governance was ushered in, the Indian policy of the United
States was centered on conquest, removal, dislocation, and extirpation.
The purpose of highlighting this litany of wrongs against Indians
is not to dwell on the past, but to serve as a prelude to discussion of
the future form and substance of relations between Indian Tribes and
the United States. The trust responsibility and government-to-
government relationships are central to our deliberations. I say
``our'' because decisions cannot be made unilaterally by the United
States. Our discussion should include consideration of the implications
of the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), particularly articles relating to free, prior, and informed
consent. As sovereigns, Indian Nations and the United States must
engage in substantive dialogue to collectively establish a common
vision and policy to guide our path to tomorrow.
In 1977, the American Indian Policy Review Commission issued a
report to Congress noting, ``The Relationship of the American Indian
tribes to the United States is founded on principals of international
law . . . a relationship founded on treaties in which Indian tribes
placed themselves under the protection of the United States and the
United States assumed the obligation of supplying such protection.''
\1\ This relationship is not working! The implementation of the United
Nations Declaration on the Rights of Indigenous Peoples is essential,
the inability to pass amendments to the DOI Self-Governance amendments
and the lack of funding to allow Tribes to protect our borders and
communities are but a few of the elements of the current dysfunctional
trust responsibility to American Indian and Alaska Native peoples. The
United States trust responsibility has not evolved with the changed
political relationship between the United States government and Indian
governments. It must be changed to reflect the realities in Indian
Country in the 21st century.
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\1\ American Indian Policy Review Commission Report, 1977, p. 11
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The following comments center on Self-Determination and natural
resources, the particular area on which the Committee is seeking
comments from the Quinault Nation:
A Different Kind of Trust Responsibility. Historical notions
of dependency and incompetency must be abandoned. Our dialogue
should be focused on the forgotten trust responsibility of the
United States--the responsibility to support the capacity of
Tribes to take their place alongside the American system of
governments. For natural resources, recognition and acceptance
of Tribes as capable, responsible resource managers will be
essential to enable us to protect our cultures and economies
and to work collaboratively at the local, state, regional,
national, and international levels to sustain the environment.
Self-Determination and Self-Governance. The Quinault Nation
was one of the first Tribes to employ Self-Determination
contracting and Self-Governance compacting to improve its
ability to manage its natural resources. The devastation of our
forests, salmon, lands, and waters wrought by decades of
mismanagement by the United States could no longer be tolerated
and spurred our determination to embark on the newly opened
path to Self-Determination. For years, buy-Indian and Self-
Determination contracts provided a means for us to perform
activities in lieu of the Bureau of Indian Affairs (BIA). We
had little latitude to establish objectives and goals, but were
rather limited to those imposed and supported by the federal
administration and BIA. We found it necessary to turn to
Congress to enable us to establish a demonstration program for
a Tribal forestry program that was designed to address resource
management problems that had accumulated over decades of BIA
administration. Our ability to develop our own programs and
priorities for forestry, fisheries, health, and social programs
has been greatly enhanced through the use of Self-Governance
compacting. Quinault was in the first tier of Tribes to
participate in the Self-Governance program. While Self-
Governance has provided us with the flexibility to tailor
programs to best fit the needs of our own communities, several
improvements, noted in H.R. 2444, the Department of the
Interior Self-Governance Amendments, are needed.
The Quinault Indian Nation compacted to manage our forest lands but
we have not received the additional funding or increases in our formula
to manage existing obligations. We are further challenged by the
increased cost of fuel to perform these services.
A New Focus for Federal Administration: Support for Tribal
Self-Government. There is a need to expand our vision of the
nature of the trust responsibility to see beyond the
accustomed, narrow confines of fiduciary duties and
obligations. In some respects, this requires the term trust
responsibility to be turned on its head. Instead of a policy
that perpetuates paternalism and dependency, trust
responsibility should be viewed as the responsibility to
administer Indian Affairs in a manner deserving of the trust of
Indian Country. The time has come to transform the role of the
United States from guardian to enabler, to make the primary
function of the trustee that of supporting and assisting the
capacity of Tribes to truly exercise Self-Determination. Tribes
that are ready for this step should have the opportunity to
establish relationships with the United States that move beyond
tutelage to a position of sovereign equality. To make this
transformation, fundamental, seminal issues must be addressed.
Paternalistic procedures, practices, and policies for management of
the trust corpus that perpetuate paternalism, dependency, and
bureaucracy while trying to shield the United States from financial
liability for mismanagement have debilitating effects on the ability of
Tribes to manage and develop their own lands and resources and greatly
increased the costs of federal administration. Federal bureaucracy and
administration has left Indian Country dirt poor despite the abundance
of natural resources that blesses many reservations.
These administrative measures should be reformulated through a
collaborative process between Tribal governments and the United States
with the over-arching objective of strengthening the ability of Tribes
to fully and exclusively exercise their inherent sovereign authorities
to manage the lands and resources within reservation boundaries.
This discussion should include clarification that Indian lands are
private lands that are held in trust with a fiduciary responsibility of
the United States to manage the trust corpus for their beneficial
owners. Trust lands are not subject to the federal nexus that triggers
application of laws and regulations intended to govern public lands,
such as NEPA and the ESA.
Tribal authority to make and enforce laws and regulations of their
own making, including taxation authority, against Indians, non-Indians,
and non-Tribal members alike must become a reality.
Currently, the Department of the Interior is in the position of
being both ``pitcher'' and ``umpire'' for trust administration;
independent oversight is needed.
Consideration should also be given for the need for, and value of,
establishing a high-level ombudsman position, to help overcome
recalcitrance in federal administration of Indian Affairs.
Land consolidation and Jurisdiction. A major focus of trust
responsibility and government-to-government relations should be
directed at assisting Tribes to restore the integrity of
reservation land bases as permanent homelands for their peoples
and to establish viable land bases for newly federally-
recognized Tribes. Funding provided under the recent Cobell
settlement could provide critical resources for land
consolidation, but efforts and priorities must be Tribally, not
administratively-driven. Chaos caused by the Supreme Court's
decision in Carcieri must be rectified legislatively.
Off-Reservation Co-Management. The ability of Tribes to co-
manage resources within their traditional ceded territories off
reservation needs and deserves support. Arbitrary restrictions,
such as those employed by the EPA for development of Tribal
water quality programs restrict use to on-reservation
activities, failing to recognize Tribal needs to protect off-
reservation resources that are essential to their ability to
exercise treaty and other federally reserved rights. The United
States should provide financial, technical, and political
support for Tribal governments to formally engage and
substantively participate in international deliberations
involving natural resources and environment, e.g., climate
change, biodiversity.
Consultation. Federal entity requirements for consultation
with Tribal governments on matters pertaining to Tribal rights
and interests should be made mandatory and enforceable.
However, it is crucial, that consultation be implemented as
part of a true government-to-government process that involves
respectful dialogue to identify and try to overcome
differences, not as a pro-forma checklist that reserves
decisionmaking authority solely to the federal entity.
Formalize Trust Agreements. The foundations for trust
administration of natural resources need to be poured.
Consideration should be given to enacting a suite of laws
pertaining to Tribal natural resources. The National Indian
Forest Resources Management Act and Indian Agriculture Act
enunciated the federal trust responsibility and set forth
certain standards for management. Comparable laws are needed
for fish and wildlife, energy, and water resources.
Fiduciary standards expressed in Section 303 of the Department of
Interior manual should be cooperatively and collectively reviewed by
Tribal and administrative representatives and revised as needed.
The ability to establish formal contractual intergovernmental
agreements between the United States and Tribes which would clarify
duties, obligations, and responsibilities should be explored. These
Agreements would establish performance standards for programs operated
by both Tribes and federal agencies. A variety of arrangements could be
considered, such as the option for Tribes to place their lands in a
special form of trust that would protect them from taxation or
jurisdictional intrusions by local, state, and federal governments.
This option could reduce burdens, liabilities, and costs of federal
administration and remove impediments in securing financing for Tribal
natural resource development. The concept of converting Tribal trust
lands to a new type of ownership, Tribal restricted fee, is presently
under discussion by the House of Representatives (American Indian
Empowerment Act of 2011 , H.R. 3532). President Rob Porter (Seneca
Nation of New York) testified at a recent hearing on this proposed
legislation: ``[I]t would do this by enabling Indian nations and Tribes
to voluntarily convert some or all their existing Tribal lands from
Tribal trust lands held by the United States to Tribal restricted fee
status held by the Tribal government and thereby enjoy the enhanced
flexibility that attaches to restricted fee land holdings. That
flexibility should produce great savings in time and cost that
otherwise would burden development on Tribal trust land.'' The
advantages and disadvantages, pros and cons of providing such an option
deserve thoughtful, serious deliberation by Tribal governments,
Congress, and the Administration.
National Commission on Indian Trust Administration and Reform
The work of the National Commission on Indian Trust Administration
and Reform is underway. As Chairperson I am joined by a cadre of
Leadership and Academia who has listened and been engrained in the
trust reform issues for many decades. Ours is a charge that we all
consider very serious and with the help of this Committee, we will take
the first step to improving the system that we can all agree is ``not
working''! We held our first meeting on March 1-2, 2012 and will begin
to convene field Listening Sessions in June 2012. We are seeking the
input of Indian Country regarding the Department's administration and
management of trust assets and carrying out its fiduciary trust
responsibility for individual Indians and Tribes.
Again, thank you to the Committee for allowing me to testify before
you today on this important issue.
The Chairman. Thank you very much, President Sharp.
Vice President Baptiste, will you please proceed with your
testimony.
STATEMENT OF HON. BROOKLYN BAPTISTE, VICE-CHAIRMAN, NEZ PERCE
TRIBAL EXECUTIVE COMMITTEE
Mr. Baptiste. [Greeting in Native tongue.] To the Chairman
and the Committee, I would like to thank you for allowing us
this opportunity to provide testimony, but also such a large
target but also something that is important to us that provides
a mechanism for Tribes to be resilient and be able to define
themselves in the manner that we would like rather spiritually,
culturally, you know, economically.
I think it is important as far as the Tribes are concerned
that we are allowed to define those for ourselves and, in this
Committee, I know you have had a series of roundtables and
discussions that allow the Tribes to kind of provide testimony
and provide some guidance for the Tribes themselves to allow
you yourself and the Committee members to provide that guidance
that we give you to the rest of your peer group as well. To
provide leadership for us is important, and we thank you for
your leadership and the Committee's leadership in that manner.
As was kind of mentioned in the previous panel, you know,
the Nez Perce Tribe and many other Tribes recently settled
lawsuits with the United States over Government's mismanagement
of the trust assets of the affected Tribes. The settlement was
the culmination of six years of litigation that had been
preceded by working groups, meetings that were trying to avoid
the court system.
The Nez Perce Tribe itself, you know, finds itself in the
courtroom a lot. We would rather not. We do not think that
helps. We do not find that the justice for the Tribes is found
in the court system. We think it is in this specific forum
right here that we can find the things that we need to define
that trust obligation rather than depending on an individual
that is not versed in Indian law or in the culture and life
ways of Indian people as a whole across the Nation.
So, we would like to, you know, we thank the Administration
and we thank this Committee as well because you are providing
that avenue for us as well.
So, the issue I would like to talk, to discuss, today is
how to move the relationship between Tribes and the United
States forward to a better place. I believe we can use the
remarkable achievement of the settlement, these lingering trust
claims, as momentum to focus on the collaborative efforts of
the Tribes and the United States on truly fixing the trust
relationship, eliminate the need for costly, protracted
litigation and the us versus them mentality.
The Nez Perce Tribe would propose several courses of action
that it believes would help enhance and strengthen the trust
relationship between the United States and the Tribes. These
actions include one, clear and unequivocal affirmation of
Tribal sovereignty and the treaty relationships between the
parties, two, prioritization of funding for Tribally related
Federal programs operated by the Tribes, three, Congressional
and Executive Branch supported efforts to protect long-standing
Indian law concepts that are being eroded through the courts,
four, reaffirmation and support of Indian self-determination,
and last, continued refinement of government-to-government
consultation set forth in Executive Orders and Executive
Memorandums of past and current Administrations.
We feel that the last consultation process which served the
Tribes is one of most important because that communication will
provide the foundation for the understanding between Tribes. In
my past seven years as a leader of my people, I have noticed
that you do not always have to agree. But if you understand, it
makes things a lot easier.
So, as a Tribal leader on this panel, I think we have the
ability to transcend some issues or some topics that are not
always talked about, the hardships of social, the social wrongs
in our Country but also in our own communities as well, the
spiritual detriment that the Tribes are facing now that affect
their Tribes long standing.
Kind of an analogy I have used before was that before we
met as government to sovereigns we would bring pipes and that
would represent our belief system, our walk with the creator,
God, Jesus, whichever way you looked at it. That was our way of
agreeing and saying this is going to be our truth to our word
and it was a written language that we were foreign to but we
believed and had faith and trust in these treaties that we
signed that are held, of course, supreme law, you know, by the
Constitution.
We no longer bring pipes no more because that does not, it
is hard to quantify that type of relationship. So, now we bring
attorneys, our people are attorneys, and we bring that to the
table to try to implement the letter of the law when it is our
treaties, the trust obligation with a Federal agency or in that
it is with the sovereign as well as the States.
So, we hope that the protection of our treaty is a
protection, that the implementation of those treaties will
continue. I think this subject is fairly large compared to what
we can offer. But I appreciate the opportunity to come here and
allow some insight to us as leadership. I know you take a
larger burden representing us and the public sector as well and
we appreciate all that do you for the Tribes and the Nations.
[Closing in Native tongue.] Thank you.
[The prepared statement of Mr. Baptiste follows:]
Prepared Statement of Hon. Brooklyn Baptiste, Vice-Chairman, Nez Perce
Tribal Executive Committee
Honorable Chairman and members of the Committee, as Chairman of the
Nez Perce Tribal Executive Committee, I would like to thank you for the
opportunity to provide testimony on behalf of the Nez Perce Tribe to
this Committee on the issue of the trust responsibility of the United
States to Indian tribes. As you may know, the Nez Perce Tribe, and many
other tribes, recently settled lawsuits with the United States over the
government's mismanagement of the trust assets of the affected tribes.
The settlement was the culmination of six years of litigation that had
been preceded by scores of meetings and workgroups that had been formed
to try and address the problem outside of a courtroom setting. This
entire effort was a long and arduous process that consumed the time and
resources of the tribes involved. I would like to thank the United
States and the Obama administration for finally being willing to engage
the tribes on this issue with a goal towards resolving the long
standing dispute.
It is good that the settlement of the trust mismanagement cases
provide for a path forward and a ``clean slate'' between the tribes and
the United States with regard to its management of the trust assets of
tribes and how future disputes over those assets will be handled.
However, the settlement does not address the larger question of the
current status of the trust relationship between tribes and the United
States. The process itself was indicative of some of the issues that
are adversely affecting the important trust relationship between tribes
and the United States. Although the Nez Perce Tribe was well
represented in the litigation and settlement by the Native American
Rights Fund and our own in-house legal counsel, at one point in the
settlement process, I found myself in a room alone with approximately
20 governmental representatives working on finalizing an agreement. At
that time I thought that this was very symbolic of how tribes sometimes
feel when working with the government, outnumbered and facing an
opponent with unlimited resources. A common phrase among tribal leaders
when referencing the relationship with the United States is that tribes
used to bring weapons to battle with the United States and now we bring
a quiver of attorneys. That is a sign of a relationship that is not
functioning properly, especially a trust relationship. So the issue I
would like to discuss today is how to move the relationship between
tribes and the United States forward to a better place. I believe we
can use the remarkable achievement of the settlement of these lingering
trust claims as momentum to focus the collective efforts of the tribes
and the United States on truly fixing the trust relationship and
eliminate the need for costly protracted litigation and the ``Us versus
them'' mindset that exists.
The Nez Perce Tribe would propose several courses of action that it
believes would help enhance and strengthen the trust relationship
between the United States and tribes. These actions include: (1) clear
and unequivocal affirmation of tribal sovereignty and the treaty
relationships between the parties, (2) prioritization of funding for
tribally related federal program and programs operated by tribes, (3)
Congressional and Executive Branch supported efforts to protect
longstanding Indian law concepts that are being eroded through the
courts, (4) reaffirmation and support of Indian Self-Determination and
(5) continued refinement of government to government consultation set
forth in Executive Orders and Executive Memorandums of past and current
administrations.
I. Reaffirmation of Tribal Sovereignty and Treaty Relationships
Based on the U.S. Constitution, treaties, statutes and the
historical, political and legal relationship with the Indian tribes,
the United States has assumed a trust responsibility to Indian people.
Those laws and relationships serve as the backdrop for the government-
to-government relationship. Rep. Dale Kildee has long advocated that
Congress, as well as the other branches of government, remember that
Article VI of the United States Constitution states in part that ``This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary
notwithstanding.'' Despite this constitutional affirmation of the
supremacy of treaties, many tribes continually face threats of
diminishment or disestablishment of their reservations and lands
reserved under their treaties with the United States as well as erosion
of the rights and privileges reserved under those documents. This issue
is very critical when it comes to the land base of tribes and how those
lands are threatened through rights-of-ways or easements or various
other means. For any government, land is a foundational block. However,
the fee to trust process usually takes years or in some cases decades
because of different policies of different administrations and concerns
over gaming. This places tribes in the position of being a sovereign
that is taxed by a subdivision of a state. This prospect is repugnant
to tribal governments. Congressional action or an executive order from
the President that clearly reaffirms those treaty relationships and the
inherent sovereignty of those tribes and the rights reserved by those
tribes would be a good start in helping preserve what was intended to
be permanent relationships between the Tribes and the United States.
II. Prioritization of Funding
In light of the foundational nature of the relationship between the
tribes and the United States, it is frustrating to Tribes when each
budget cycle presents the question of whether tribal programs or
federally related tribal programs will be properly funded or funded at
all. The fact that spending on tribal programs is discretionary in
nature runs counter to the obligations and promises that arise from the
trust and treaty relationship of the parties. Although progress has
been made on increasing funding for agencies and programs that provide
services in Indian country such as the Bureau of Indian Affairs and
Indian Health Service as well as increased commitments to properly fund
services provided by tribes such as housing and health clinics, it is
time to move to a new paradigm in relation to federal funding of
tribally related programs. Funding for these programs should not be
dictated by political party affiliation or which party is in office but
rather it should be a baseline spending obligation that the United
States committed to long ago in return for the development of this
country.
III. Support of Indian Law Principles Under Scrutiny by Courts
Many of the principles and tenets of the trust relationship have
been affirmed, developed, and refined through the United States court
system. However, tribes believe this trust relationship is currently
being eroded in the courts today. A 2009 empirical study done by
Matthew Fletcher of Michigan State University College of Law entitled:
``Factbound and Splitless: Certiorari and Indian Law'' shows that since
the Supreme Court issued its decision in California v. Cabazon Band of
Mission Indians in 1987, the Supreme Court has decided against tribal
interests in more than 75 percent of cases. This rate of success is
lower than the success rate of criminal defendants. With this trend,
Tribes are relying more on the Executive Branch as well as Congress to
be aware of, protect, and uphold the longstanding principles of Indian
law. The Carcieri decision is a perfect example of this dynamic but it
is by no means the only example. In addition, there are several cases
that are before or could come before the United States Supreme Court
that could have negative consequences for Indian Country in a way
similar to the Carcieri decision. If the courts are not going to
protect these long-standing principles, the Executive and Congressional
branches of the government must take up the issue. Discussion is needed
on ways to address these issues through other avenues such as Congress
exercising its plenary power in support of tribal issues and in
honoring the Federal Government's trust responsibility.
IV. Reaffirmation of Self-Determination
Another aspect of the trust relationship that deserves
congressional attention is the policies on self-determination. There is
need for work by the United States in formulating strategies to provide
effective reaffirmation and support by the Executive Branch and
Congress of the policy of Indian Self-Determination. Stephen Cornell
and Joseph P. Kalt recently published a paper entitled: ``American
Indian Self-determination: The Political Economy of a Successful
Policy''. The authors believe that there is an alarming trend away from
support for tribal self-determination which has been a success. They
state: ``The policy of self-determination reflects a political
equilibrium which has held for four decades and which has withstood
various shifts in the party control of Congress and the White House.
While Republicans have provided relatively weak support for social
spending on Indian issues when compared to Democrats, both parties'
representatives have generally been supportive of self-determination
and local self-rule for tribes. Analysis of thousands of sponsorships
of federal legislation over 1970-present, however, finds the
equilibrium under challenge. In particular, since the late 1990s,
Republican congressional support for policies of self-determination has
fallen off sharply and has not returned. The recent change in the party
control of Congress calls into question the sustainability of self-
determination through self-governance as a central principle of federal
Indian policy.'' It is important to begin to discuss strategies to
reverse this trend and continue forward with the major progress in
promoting self-determination that has been made on this issue since the
administration of President Nixon.
V. Government-to-Government Consultation
Finally, and maybe most importantly, there needs to be continued
emphasis and attention paid to the consultation process that occurs
between tribes and the United States. When the United States makes
decisions and implements those decisions through the Executive Branch,
there can be an impact. Tribal issues are not confined simply to the
Bureau of Indian Affairs. Tribes work with many agencies on many
issues. For example, the Nez Perce Tribe is a natural resource
intensive tribe having connections with over 11 national forests. The
relationship between the Nez Perce Tribe and the United States Forest
Service is extremely important. The Nez Perce Tribe has a connection
through its treaty with one out of every 20 acres of forest service
land or 6 percent of the entire national forest system. In addition,
the Nez Perce Tribe works daily with the Bureau of Land Management, the
United States Park Service, the Department of Energy through our work
on the Hanford Nuclear Reservation, the Bureau of Reclamation, the
Department of Commerce, the Department of Health and Human Services,
the Army Corps of Engineers, the U.S. Fish and Wildlife Service and
many others. The Nez Perce Tribe relies on its government-to-government
relationships to ensure that the rights and privileges of the Nez Perce
Tribe are protected and preserved. However, despite the best education
efforts of tribes, many decisions are made by federal agencies without
thoughtful consideration of the impact these decisions will have on a
tribe and without proper consultation with the affected tribes. In
truth, consultation should be a foundational component of decision-
making by any federal agency because of the trust relationship that
exits. Tribes believe there is a lack of accountability in this area
when agencies make decisions and the decision to consult is too
individually driven. If the will of the persons in charge are to
consult, consultation happens. If the will is not there, tribes have to
fight to force proper agency consultation when consultation should just
be how business is conducted regardless. President Obama has worked to
increase meaningful consultation and accountability during his tenure.
Those efforts need to continue and be supported by Congress through
legislation and oversight.
Thank you for the opportunity to speak here today on this issue.
Although this is a vast topic that cannot be covered in one hearing,
the Nez Perce Tribe does believe that there are ways that Congress and
the Executive Branch can work in coordination to reaffirm and improve
the trust relationship it has with tribes.
The Chairman. Thank you very much, Mr. Baptiste.
Ms. Atcitty, please proceed with your testimony.
STATEMENT OF SHENAN ATCITTY, LEGAL COUNSEL, JICARILLA APACHE
NATION
Ms. Atcitty. Thank you, Mr. Chairman. Aloha.
The Chairman. Aloha.
Ms. Atcitty. I am Shenan Atcitty. I am from the Navajo
Nation and I am a partner with the law firm of Holland &
Knight. I have had the honor and privilege to represent the
Jicarilla Apache Nation for more than 15 years and am happy to
be here with your today. President Pesata sends his regrets
that he could not be here but is very thankful for your holding
this very important hearing.
A lot has been said today about the case involving the
Jicarilla which is now pending before the United States Court
of Federal Claims. We filed the case, the nation filed the
case, more than a decade ago. So, we have been in the case for
quite a while.
It is a pretty broad case involving breach of the Federal
Government's duties with respect to management of their natural
resources. The case has been broken into several phases. We
just completed trial on Phase 1 which involves the trust funds
for a particular period.
When we were before the Supreme Court last year, it was
shocking and disappointing to hearing the Associate Solicitor
General stand before the Justices and deny the existence of an
enforceable trust relationship. I commend the panel before me
which discussed a lot of the underpinnings and the principles.
But in real life time, to hear that with your client in a case
of significant importance, it was very disheartening.
Equally disheartening was the reaction from the Justices.
It is almost as if they are willing to throw out decades and
generations of case law regarding the trust responsibility and
the fact that we have what would otherwise, has otherwise been
considered, an enforceable trust duty when the Government is
managing Tribal trust funds and Tribal trust mineral resources.
There had been no doubt that certainly that is a fiduciary
relationship.
But the particular issue in our case had to do with
discovery. In our case, we had filed a motion to compel the
Government to produce certain documents that it had claimed
were protected by the attorney-client privilege. We were able
to work out, the nation was able to work out, an accommodation
for part of the documents at issue. But there still remains a
set that the Government claimed were protected by the attorney-
client privilege.
That forced us to go to court and to file a motion before
the court, the motion to compel. We prevailed at the trial
court. The Government appealed and the Federal Circuit
supported our position and upheld the trial court's ruling. And
the ruling was based on the fiduciary exception, a legal
principle, a long-standing legal principle, which would allow a
trustee to see communications relating to how the trustee,
would allow the beneficiary to see communications on how the
trustee is managing the trust assets. That is what private
fiduciary's get, banks who manage your money, you are entitled
to see that information.
But for a lot of unfair reasons that we believe that were
not substantiated, the Court ruled against us. We think that is
very damaging. It has been very detrimental to the trust
relationship. You have heard professors and practitioners
explain the practical terms of what this decision has done and
we think Congress should take corrective action and fix that
decision.
In our written testimony we propose a narrow, streamlined
fix. We think Congress could get an amendment to the American
Indian Trust Reform Act and allow trustees, allow Indian
trustees, to discover and see those types of communications.
That is only fair. It is the right thing to do. And we look
forward to working with the Committee to do that.
My remarks also cover some other areas where we probably
need more Congressional oversight and attention with respect to
management of natural resources and land decisions. Even
outside the litigation context there are still challenges
there. And a lot of it is bureaucratic resistance. Perhaps some
form of ADR that is compelled by statute.
Some other hammer needs to be placed on the executives so,
they know what to do but, unfortunately, when they are trying
to avoid liability, those issues tend to surface higher and get
more attention than actually fulfilling trust responsibilities
and duties.
And with, I will conclude my remarks. Thank you, Mr.
Chairman.
[The prepared statement of Mr. Pesata follows:]
Prepared Statement of Hon. Levi Pesata, President, Jicarilla Apache
Nation
I. Introduction
On behalf of the Jicarilla Apache Nation (``Nation''), I am Levi
Pesata and I serve as President of the Jicarilla Apache Nation. I would
like to thank the Committee for convening this hearing to discuss
Indian Energy Issues. The Nation is a federally recognized Indian tribe
located in north-central New Mexico. Eighty-five (85) percent of the
tribal population resides on the Jicarilla Apache Reservation
(Reservation), mostly in the town of Dulce, which serves as our tribal
headquarters. We have a tribal population of nearly four thousand
(4,000) members and our Reservation consists of approximately one (1)
million acres of trust land.
We have been blessed with abundant natural resources such as oil
and gas, timber, water, and fish and wildlife. Fortunately, our
Reservation was not subjected to the disastrous Allotment Policy
initiated in the 19th Century. As a result, we do not face the
difficult checker-board jurisdictional challenges encountered by those
Tribes and individuals whose lands were broken apart (and in many
instances lost) as part of that Federal Policy. Certainly, this
consequence has been beneficial to protect and enhance our sovereign
governance over our lands and to facilitate our energy development
initiatives over the years. Yet, given our extremely rural location,
the considerable public health and welfare needs of our people, as well
as the fact that we provide governmental services not only to our
tribal members but for those living near or travelling through our
Reservation, the Nation has a heightened need to generate revenue to
provide essential governmental services on our Reservation as well as
to the surrounding rural region. Thus, we rely heavily on the
development of our natural resources, primarily our oil and gas
resources, to raise revenue to fund our government and provision of
essential governmental services. The Federal Government has significant
trust responsibilities and duties to protect our trust land and trust
resources and to ensure that we obtain the maximum value for our
resources.
Because of the Federal Government's failure to fulfill its trust
responsibilities and duties owed to the Nation, we have been compelled
to sue our trustee in various forums for breaching those trust
responsibilities and duties. In one of our cases, an issue was recently
decided by the U.S. Supreme Court which greatly diminished the Trust
Responsibility. This decision has broad implications for all Indian
tribes and is one that Congress should immediately correct. I am
pleased to present the Nation's testimony on the very important issue
of the United States fulfilling the Trust Responsibility to Indian
tribes.
II. Background: the Origin and Foundation of the Federal Trust
Responsibility
The United States has a special trust responsibility to Indian
tribes, and the Federal trust responsibility has its roots in the
foundation of the American Republic. In the early years of our Nation's
history, the British, French, Spanish, and Russians had colonies and
military forces in North America. These colonial powers entered into
treaties and agreements with Indian nations. The United States sought
to secure the friendship and allegiance of Indian tribes, so the
American Republic sought to enter into its own treaties with Indian
tribes.
In a 1778 Treaty, the United States established a military alliance
with the Delaware Nation. The United States pledged to preserve
``perpetual peace and friendship'' and ``guarantee to the . nation of
Delawares, and their heirs, all their territorial rights in the fullest
and most ample manner'' so long as the Delaware ``hold fast the chain
of friendship now entered into.'' Treaty with the Delaware Nation,
1778. The United States was anxious to repudiate accusations made by
its enemies (Great Britain) that it sought to ``extirpate'' the
Delaware and ``take possession of their country.'' \1\
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\1\ The Delaware Nation still holds the chain of friendship with
the United States though the Nation was long ago removed from its
original country to Oklahoma.
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In the Northwest Ordinance of 1787, Congress pledged ``good faith''
and protection for Indian tribes:
The utmost good faith shall always be observed towards the
Indians, their lands and property shall never be taken from
them without their consent; and in their property, rights and
liberty, they shall never be invaded or disturbed, unless in
just and lawful wars authorized by Congress; but laws founded
in justice and humanity shall from time to time be made, for
preventing wrongs being done to them, and for preserving peace
and friendship with them . . .
(The Northwest Ordinance was followed by years of war with the
Indians in Ohio, which only ended when all of their lands had been
ceded and they were removed to Indiana--the original Indian territory.)
In the formative period of the United States, Secretary of War
Henry Knox explained that violence by U.S. citizens against Indians
violated those treaties and endangered the peace:
[W]hite inhabitants on the frontiers of North Carolina in the
vicinity of Chota on the Tenessee River have frequently
committed the most unprovoked and direct outrages against the
Cherokee Indians . . . . [T]his unworthy conduct is an open
violation of the treaty of peace made by the United States . .
. [and] have arisen . . . to an actual although informal war of
the white inhabitants against the Cherokees . . . . [T]he
unjustifiable conduct . . . has most probably been dictated by
the avaricious desire of obtaining the fertile lands possessed
by the said Indians . . . . [T]he United States have pledged
themselves for the protection of the said Indians within the
boundaries described by the treaty and that the principles of
good faith, sound policy and every respect which a nation owes
to its own reputation and dignity require if the union possess
sufficient power that it be exerted to enforce a due observance
of the said treaty . . . . [U]nless this shall be the case the
powerful tribes of the Creeks, Choctaws, and Chickasaws will be
able to keep the frontiers of the southern states constantly
embroiled with hostilities, and that all other tribes will have
good grounds . . . for waging perpetual war against the
citizens of the United States . . . .
Report of Secretary Henry Knox, July 18, 1788. Thus, Federal
protection of Indian tribes and Indian lands was essential to
maintain the peace of the new American Republic.
In 1791, President George Washington, in his third annual address,
explained that Congress must protect Indian tribes from violence
committed against them by U.S. citizens. President Washington told
Congress, ``[E]fficacious provision should be made for inflicting
adequate penalties upon all those who, by violating [Indian] rights,
shall infringe the treaties and endanger the peace of the Union.''
As an adjunct to America's colonial legacy, the United States
asserted title to the 13 colonies based on land grants from England. It
was recognized that Indian tribes held the right of occupancy to the
lands undisturbed by the assertion of fee title by the Federal
Government, except that Indian tribes could not alienate Indian lands
without the permission of the United States. President Washington
signed the first Indian Non-Intercourse Act into law to manage Indian
land cessions under Federal authority: The Act of July 22, 1790
provides:
[N]o sale of lands made by any Indians, or any nation or tribe
of Indians within the United States, shall be valid to any
person or persons, or to any state, whether having the right of
pre-emption of those lands or not, unless the same shall be
made and duly executed at some public treaty, held under the
authority of the United States.
Shortly after the passage of the Act, President Washington
explained its import to the Seneca Nation:
I am not uninformed that the six Nations have been led into
some difficulties with respect to the sale of their lands since
the peace. But I must inform you that these evils arose before
the present government of the United States was established,
when the separate States and individuals under their authority,
undertook to treat with the Indian tribes respecting the sale
of their lands. But the case is now entirely altered. The
general Government only has the power, to treat with the Indian
Nations, and any treaty formed and held without its authority
will not be binding. Here then is the security for the
remainder of your lands. No State nor person can purchase your
lands, unless at some public treaty held under the authority of
the United States. The general government will never consent to
your being defrauded. But it will protect you in all your just
rights.
American State Papers 142 (1823).
President Jefferson agreed with Washington's views on the issue of
Indian lands and reauthorized the Indian Non-Intercourse Act in the Act
of March 30, 1802, which provided:
[N]o purchase, grant, lease, or other conveyance of lands, or
of any title or claim thereto, from any Indian, or nation, or
tribe of Indians, within the bounds of the United States, shall
be of any validity, in law or equity, unless the same be made
by treaty or convention, entered into pursuant to the
constitution . . . .
Accordingly, the United States asserted fee titles to lands within
its borders, outside the borders of the original 13 colonies, and
protected the Indian right of occupancy or the beneficial interest in
the land.
In the Louisiana Purchase Treaty, President Jefferson agreed that
existing international treaties with the Indian tribes would be
honored, until the United States, by mutual consent, had negotiated its
own treaties with Indian tribes. Specifically, the Treaty provides:
The United States promise to execute Such treaties and
articles as may have been agreed between Spain and the tribes
and nations of Indians until by mutual consent of the United
States and the said tribes or nations other suitable articles
shall have been agreed upon.
Louisiana Purchase Treaty, Art. VI (1803). In the aftermath of the
War of 1812, the United States agreed to treat with the Indian tribes
on the same basis as it had before the War. Specifically, in the Treaty
of Ghent, Great Britain sought to protect Indian interests and secured
the concession that:
The United States of America engage to put an end immediately
after the Ratification of the present Treaty to hostilities
with all the Tribes or Nations of Indians with whom they may be
at war at the time of such Ratification, and forthwith to
restore to such Tribes or Nations respectively all the
possessions, rights, and privileges which they may have enjoyed
or been entitled to in one thousand eight hundred and eleven
previous to such hostilities.
Treaty of Ghent, Art. XI (1815). Following the Treaty of Ghent, the
United States entered into a series of ``peace and friendship''
treaties with numerous Indian tribes. For example, the Treaty with the
Sioux of the Lakes, 1815, provides:
Every injury, or act of hostility, committed by one or either
of the contracting parties against the other, shall be mutually
forgiven and forgot.
There shall be perpetual peace and friendship between all the
citizens of the United States of America and all the
individuals composing the said tribe . and all the friendly
relations that existed between them before the war, shall be,
and the same are hereby renewed.
The undersigned chiefs and warriors, for themselves, and their
said tribe, do hereby acknowledge themselves and their
aforesaid tribe to be under the protection of the United
States, and of no other nation, power, or sovereign,
whatsoever.
Taken together with the United States' assertion of title over
Indian lands outside the original 13 colonies, the United States'
treaty and statutory pledges of protection to Indian nations form the
foundation of the Federal trust responsibility.
In the seminal Cherokee Nation cases, the State Legislature of
Georgia sought to expropriate the treaty protected lands of the
Cherokee Nation and force the Cherokee Nation to dissolve or remove
beyond its borders. In Cherokee Nation v. Georgia, 30 U.S. 1 (1831),
the Supreme Court denied jurisdiction over the case, explaining that it
was a ``political'' controversy beyond the court's power and that the
Cherokee Nation, as an Indian tribe, could not be considered a
``foreign'' nation within the meaning of the Constitution:
Though the Indians are acknowledged to have an unquestionable,
and heretofore unquestioned right to the lands they occupy,
until that right shall be extinguished by a voluntary cession
to our government, yet it may well be doubted whether those
tribes which reside within the acknowledged boundaries of the
United States can, with strict accuracy, be denominated foreign
nations. They may, more correctly, perhaps, be denominated
domestic dependent nations. They occupy a territory to which we
assert a title independent of their will, which must take
effect in point of possession when their right of possession
ceases. Meanwhile they are in a state of pupilage. Their
relation to the United States resembles that of a ward to his
guardian.
The Supreme Court explained the importance of these early treaty
relations and the meaning of the United States' protection in Worcester
v. Georgia:
[T]he strong hand of government was interposed to restrain the
disorderly and licentious from intrusion into their country,
from encroachments on their lands, and from the acts of
violence which were often attended by reciprocal murder. The
Indians perceived in this protection only what was beneficial
to themselves--an engagement to punish aggressions on them. It
involved practically no claim to their lands, no dominion over
their persons. It merely bound the Nation to the British Crown
as a dependent ally, claiming the protection of a powerful
friend and neighbour and receiving the advantages of that
protection without involving a surrender of their national
character . . . .
The same stipulation entered into with the United States is
undoubtedly to be construed in the same manner. They receive
the Cherokee Nation into their favour and protection. 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.
Worcester v. Georgia, 31 U.S. 515, 517-518 (1832). The Worcester
Court explained further:
This treaty . . . [in] its essential articles treat the
Cherokees as a nation capable of maintaining the relations of
peace and war, and ascertain the boundaries between them and
the United States.
The Treaty of Holston, negotiated with the Cherokees in July,
1791, explicitly recognising the national character of the
Cherokees and their right of self-government, thus guarantying
their lands, assuming the duty of protection, and of course
pledging the faith of the United States for that protection,
has been frequently renewed, and is now in full force.
To the general pledge of protection have been added several
specific pledges deemed valuable by the Indians. Some of these
restrain the citizens of the United States from encroachments
on the Cherokee country, and provide for the punishment of
intruders.
The treaties and laws of the United States contemplate the
Indian territory as completely separated from that of the
States, and provide that all intercourse with them shall be
carried on exclusively by the Government of the Union.
The Indian nations had always been considered as distinct,
independent political communities retaining their original
natural rights as undisputed possessors of the soil, from time
immemorial, with the single exception of that imposed by
irresistible power, which excluded them from intercourse with
any other European potentate . . . . The very term ``nation,''
so generally applied to them, means ``a people distinct from
others.'' The Constitution, by declaring treaties already made,
as well as those to be made, to be the supreme law of the land,
has adopted and sanctioned the previous treaties with the
Indian nations, and consequently admits their rank among the
powers who are capable of making treaties. The words ``treaty''
and ``nation'' are words of our own language, selected in our
diplomatic and legislative proceedings by ourselves, having
each a definite and well understood meaning. We have applied
them to Indians as we have applied them to the other nations of
the earth.
Worcester v. Georgia, 31 U.S. at 519. In short, the Supreme Court
acknowledged the original sovereign status of native nations and
recognized the treaties as evidence of the Constitution's
acknowledgement of Indian nations. The United States extended Federal
protection to Indian nations to prevent encroachment on Indian lands by
its own citizens, and consequently, to preserve the peace.
The Trust Responsibility as a Colonial Sword
At times in the past, the United States used the Federal trust
responsibility as a sword to strip Indian tribes of their lands in
violation of treaties. In Lone Wolf v. Hitchcock, 187 U.S. 533 (1903),
the Chief of the Kiowa Tribe objected to the sale of so-called
``surplus land'' on the Kiowa Reservation, despite the fact that the
Treaty with the Kiowa, 1867 required \3/4\ adult male consent to any
further sale of tribal lands. The Supreme Court refused the challenge,
explaining:
Now, it is true that in decisions of this court, the Indian
right of occupancy of tribal lands, whether declared in a
treaty or otherwise created, has been stated to be sacred, or,
as sometimes expressed, as sacred as the fee of the United
States in the same lands . . . .
But the right which the Indians held was only that of
occupancy. The fee was in the United States, subject to that
right, and could be transferred by them whenever they chose.
The grantee, it is true, would take only the naked fee, and
could not disturb the occupancy of the Indians; that occupancy
could only be interfered with or determined by the United
States. It is to be presumed that in this matter the United
States would be governed by such considerations of justice as
would control a Christian people in their treatment of an
ignorant and dependent race. Be that is it may, the propriety
or justice of their action towards the Indians with respect to
their lands is a question of governmental policy, and is not a
matter open to discussion in a controversy between third
parties, neither of whom derives title from the Indians . . . .
Plenary authority over the tribal relations of the Indians has
been exercised by Congress from the beginning, and the power
has always been deemed a political one, not subject to be
controlled by the judicial department of the government. Until
the year 1871 the policy was pursued of dealing with the Indian
tribes by means of treaties, and, of course, a moral obligation
rested upon Congress to act in good faith in performing the
stipulations entered into on its behalf. But, as with treaties
made with foreign nations the legislative power might pass laws
in conflict with treaties made with the Indians.
The power exists to abrogate the provisions of an Indian
treaty, though presumably such power will be exercised only
when circumstances arise which will not only justify the
government in disregarding the stipulations of the treaty, but
may demand, in the interest of the country and the Indians
themselves, that it should do so. When, therefore, treaties
were entered into between the United States and a tribe of
Indians it was never doubted that the power to abrogate existed
in Congress, and that in a contingency such power might be
availed of from considerations of governmental policy,
particularly if consistent with perfect good faith towards the
Indians.
Under the Lone Wolf doctrine, the United States sold millions of
acres of Indian lands as ``surplus lands,'' supposedly not needed by
Indian tribes. From 1887 to 1934, Indian nations lost more 90 million
acres of land to the Allotment Policy at issue in Lone Wolf, and
although the United States ended the Allotment Policy, precious little
land has been restored.
In 1934, Congress, through the Indian Reorganization Act, provided
that tribal governments should have the right to veto any use or
disposition of their land in the absence of tribal consent.
Specifically, Section 16, discussing powers of Indian tribes, provides,
``In addition to all powers vested in any Indian tribe or tribal
council by existing law, the constitution adopted by said tribe shall
also vest . . . the following rights and powers: . . . to prevent the
sale, disposition, lease, or encumbrance of tribal lands, interests in
lands, or other tribal assets without the consent of the tribe.'' 25
U.S.C. sec. 476.
Historical abuses of the Federal trust responsibility were limited
in the 20th Century by the Courts and Congress. For example, in
Shoshone Tribe v. United States, 299 U.S. 476 (1937), the Shoshone
Tribe sued the United States for allowing the Arapaho Tribe to live on
and claim a one-half interest in the Wind River Reservation, which had
been reserved to the Shoshone by Treaty. The United States argued that
the Treaty had a provision to allow for the settlement of friendly
Indians on the reservation, so the placement of another tribe, such as
the Arapaho, had been contemplated by the treaty. The Supreme Court
rejected that argument:
Power to control and manage the property and affairs of
Indians in good faith for their betterment and welfare may be
exerted in many ways and at times even in derogation of the
provisions of a treaty. The power does not extend so far as to
enable the government to give the tribal lands to others, or to
appropriate them to its own purposes, without rendering, or
assuming an obligation to render, just compensation; * * *
for that would not be an exercise of guardianship, but an act
of confiscation. The right of the Indians to the occupancy of
the lands pledged to them may be one of occupancy only, but it
is as sacred as that of the United States to the fee.
Spoliation is not management.
Accordingly, the Shoshone Tribe Court authorized an award of
damages by the court below on remand in accordance with the 5th
Amendment.
Similarly, in Sioux Nation v. United States, 448 U.S. 371 (1980),
the Supreme Court held that the United States Congress had not acted in
good faith as a trustee when it took the Black Hills from the Sioux
Nation. Rather, the Federal Government had engaged in an exercise of
dishonorable dealing by taking the Sioux Nation land without just
compensation. Accordingly, the Supreme Court ruled that the Sioux
Nation was entitled to compensation under the 5th Amendment.
The Federal Trust Responsibility as a Shield
At times, the Federal trust responsibility has been used as a
shield to protect Indian tribes from third-party depredations. For
example, in United States ex rel. Hualapai Indians v. Santa Fe Pacific
Railroad Co., 314 U.S. 339 (1941), the United States sued Santa Fe
Railroad for possession of the aboriginal Indian land of the Hualapai
and for back rent from Santa Fe Railroad for its trespass on the lands.
The Court ruled in favor of the United States and the Hualapai
explaining:
Unquestionably it has been the policy of the Federal
Government from the beginning to respect the Indian right of
occupancy, which could only be interfered with by the United
States . . . . [T]he Indian right of occupancy is considered as
sacred as the fee simple of the whites . . . . It would take
plain and unambiguous action to deprive the Walapais of the
benefits of that policy. For it was founded on the desire to
maintain just and peaceable relations with Indians. The reasons
for its application to other tribes are no less apparent in
case of the Walapais, a savage tribe which in early days caused
the military no end of trouble.
The Court found no clear congressional action extinguishing the
Hualapai title to the land, the Railroad surrendered the land to the
United States, and the Court ordered an accounting for back rents due
to the Tribe.
The United States has also acted to protect tribal mineral
interests and natural resources, and when Federal law provides
protection for Indian lands and mineral leases, lessees must strictly
comply with the law. In United States v. Noble, 237 U.S. 74 (1915), the
United States sued Noble for entering into an unauthorized lease with
Quapaw Indian allottees. The Court explained the United States
authority to act on behalf of the Quapaw:
The Quapaws are still under national tutelage. The government
maintains an agency, and, pursuant to the treaty of May 13,
1833 (7 Stat. at L. 424), an annual appropriation is made for
education and other assistance (37 Stat. at L. 530, chap. 388).
In 1893, the Quapaw National Council made provision for
allotments in severalty which were to be subject to the action
of Congress, and in the act of ratification of 1895 Congress
imposed the restriction upon alienation which has been quoted.
The guardianship of the United States continues,
notwithstanding the citizenship conferred upon the allottees;
and, where Congress has imposed restrictions upon the
alienation of an allotment, the United States has capacity to
sue for the purpose of setting aside conveyances or contracts
by which these restrictions have been transgressed.
The allottees had authority to lease their lands for ten years, and
the allottees had been induced to enter into a series of overlapping
mineral leases of ten years for five years in a row, with the final
lease being an overlapping lease for a term of twenty years. The Court
viewed the overlapping leases in an unfavorably: ``The practice, to say
the least, is an abnormal one, and it requires no extended discussion
to show that it would facilitate abuses in dealing with ignorant and
inexperienced Indians . . . .'' The Noble Court held that Congress had
not authorized ``overlapping leases'':
The rents and royalties were profit issuing out of the land..
It was the intent of Congress that the allottees, during the
period of the restriction, should be secure in the actual
enjoyment of their interest in the land. The restriction was
removed only to the extent specified; otherwise, the
prohibition against alienation remained absolute . . . .
The allottee, as we have seen, is under an absolute
restriction with respect to his reversion for a period of
twenty-five years from the date of his patent. In the light of
this restriction, and of the governmental policy which induced
it, there is sound reason for construing the power as not
authorizing anything more than a lease in possession, as well
understood in the law. At common law, as the government points
out, it was the established doctrine that a tenant for life,
with a general power to make leases, could make only leases in
possession, and not leases in reversion or in furturo. He was
not authorized by such a power to make a lease to commence
'after the determination of a lease in being. Such a lease was
deemed to be reversionary. A general power to lease for a
certain number of years without saying either in possession or
reversion, authorizes only a lease in possession, and not in
futureo. Such a power receives the same construction as a power
to make leases in possession. What is expressed in the one is
understood in the other . . . .
We are unable to see that the allottee under the power in
question has any better position. The protection accorded by
Congress, through the restriction upon the alienation of the
allottee's estate--modified only by the power to lease as
specified--was not less complete, because the limitation was
not in the interest of a remainderman, but was for the benefit
of the allottee himself as a ward of the Nation. The act of
1897 gives him authority 'to lease' for a term not exceeding
the stated limit. Taking the words in their natural sense, they
authorize leases in possession, and nothing more. The language
does not compel the recognition of leases which are to take
effect in possession many years after their execution, if,
indeed, it could be assumed that they were not intended to be
concurrent. Such leases certainly violate the spirit of the
statute, and according to the analogies of the law, they
violate its letter.
The Court found that the ``overlapping leases'' violated the
congressional requisites for the Indian land leases, and accordingly,
the Court held that the leases were void.
The Scope of Federal Laws Are Sometimes Limited to Protect the Federal
Trust
Indian treaties, statutes, executive orders, court decisions and
administrative rulings provide a body of law that forms the backdrop
for the trust responsibility and the Federal trust is a venerable
doctrine with roots reaching to the foundation of the American
Republic. On occasion, the Supreme Court has limited the scope that
Federal laws would otherwise have in Indian country, based upon the
Federal trust responsibility.
For example, in Ex Parte Crow Dog, 109 U.S. 556 (1883), the Supreme
Court held that the United States did not have authority to try Crow
Dog for the murder of Spotted Tail, a well recognized Lakota Chief,
because the treaty reserved crimes by one Indian against another to
tribal justice systems. The Supreme Court explained:
And congress shall, by appropriate legislation, secure to them
an orderly government; they shall be subject to the laws of the
United States, and each individual shall be protected in his
rights of property, person, and life.' It is equally clear, in
our opinion, that these words can have no such effect as that
claimed for them. The pledge to secure to these people, with
whom the United States was contracting as a distinct political
body, an orderly government, by appropriate legislation
thereafter to be framed and enacted, necessarily implies,
having regard to all the circumstances attending the
transaction, that among the arts of civilized life, which it
was the very purpose of all these arrangements to introduce and
naturalize among them, was the highest and best of all--that of
self-government, the regulation by themselves of their own
domestic affairs, the maintenance of order and peace among
their own members by the administration of their own laws and
customs. They were nevertheless to be subject to the laws of
the United States, not in the sense of citizens, but, as they
had always been, as wards, subject to a guardian; not as
individuals, constituted members of the political community of
the United States, with a voice in the selection of
representatives and the framing of the laws, but as a dependent
community who were in a state of pupilage, advancing from the
condition of a savage tribe to that of a people who, through
the discipline of labor, and by education, it was hoped might
become a self-supporting and self-governed society.
Accordingly, the Court held that the general Federal statutes
against murder did not apply in the killing of one Lakota Indian by
another, since the 1868 Treaty with the Sioux Nation reserved such
crimes to tribal law.
In the area of taxation, the Supreme Court decided in Squire v.
Capoeman, 351 U.S. 1, 7-10 (1956), that the proceeds of timber sales
from allotted trust lands on the Quinault Indian Reservation were not
subject to Federal capital gains taxes. The Court explained: ``The
Government urges us to view this case as an ordinary tax case without
regard to the treaty, relevant statutes, congressional policy
concerning Indians, or the guardian-ward relationship between the
United States and these particular Indians.'' The Court agreed that,
outside the areas governed by treaty and remedial legislation, Indians
are citizens and in ordinary affairs of life are treated as other
citizens. Yet, the Court found that taxation of Indian trust lands was
the subject of treaty and remedial legislation:
Congress, in an amendment to the General Allotment Act, gave
additional force to respondents' position. Section 6 of that
Act was amended to include a proviso--
That the Secretary of the Interior may, in his discretion,
and he is authorized, whenever he shall be satisfied that any
Indian allottee is competent and capable of managing his or her
affairs at any time to cause to be issued to such allottee a
patent in fee simple, and thereafter all restrictions as to
sale, incumbrance, or taxation of said land shall be removed
and said land shall not be liable to the satisfaction of any
debt contracted prior to the issuing of such patent * * *.
The Government argues that this amendment was directed solely
at permitting state and local taxation after a transfer in fee,
but there is no indication in the legislative history of the
amendment that it was to be so limited. The fact that this
amendment antedated the federal income tax by 10 years also
seems irrelevant. The literal language of the proviso evinces a
congressional intent to subject an Indian allotment to all
taxes only after a patent in fee is issued to the allottee.
This, in turn, implies that, until such time as the patent is
issued, the allotment shall be free from all taxes, both those
in being and those which might in the future be enacted.
The first opinion of an Attorney General touching on this
question seemed to construe the language of the amendment to
Section 6 as exempting from the income tax income derived from
restricted allotments. And even without such a clear statutory
basis for exemption, a later Attorney General advised that he
was--
(U)nable, by implication, to impute to Congress under the
broad language of our Internal Revenue Acts an intent to impose
a tax for the benefit of the Federal Government on income
derived from the restricted property of these wards of the
nation; property the management and control of which rests
largely in the hands of officers of the Government charged by
law with the responsibility and duty of protecting the
interests and welfare of these dependent people. In other
words, it is not lightly to be assumed that Congress intended
to tax the ward for the benefit of the guardian.
Two of these opinions were published as Treasury Decisions. On
the basis of these opinions and decisions, and a series of
district and circuit court decisions, it was said by Felix S.
Cohen, an acknowledged expert in Indian law, that it is clear
that the exemption accorded tribal and restricted Indian lands
extends to the income derived directly therefrom. These
relatively contemporaneous official and unofficial writings are
entitled to consideration . . . .
The wisdom of the congressional exemption from tax embodied in
Section 6 of the General Allotment Act is manifested by the
facts of the instant case. Respondent's timber constitutes the
major value of his allotted land. The Government determines the
conditions under which the cutting is made. Once logged off,
the land is of little value. The land no longer serves the
purpose for which it was by treaty set aside to his ancestors,
and for which it was allotted to him. It can no longer be
adequate to his needs and serve the purpose of bringing him
finally to a state of competency and independence. Unless the
proceeds of the timber sale are preserved for respondent, he
cannot go forward when declared competent with the necessary
chance of economic survival in competition with others. This
chance is guaranteed by the tax exemption afforded by the
General Allotment Act, and the solemn undertaking in the
patent. It is unreasonable to infer that, in enacting the
income tax law, Congress intended to limit or undermine the
Government's undertaking. To tax respondent under these
circumstances would, in the words of the court below, be at the
least, a sorry breach of faith with these Indians.
In short, the Federal trust responsibility provides the overarching
principle for Federal law relating to Indian trust lands, natural
resources, and trust property. Other Federal law must be interpreted in
light of the Federal trust responsibility when it applies to Indian
lands, natural resources, trust property, or tribal self-government.
Federal Accountability Under the Federal Trust Responsibility
In the 20th Century, the Supreme Court has held that the United
States should be held to the exacting standards of a fiduciary in its
treaty and trust relationships with Indian tribes. In Seminole Nation
v. United States, 316 U.S. 286, 297 (1942), the Seminole Nation sued
the United States for failing to protect the treaty payments and
annuities due to the Nation. The Supreme Court, relying on the
traditional standards for common law trustees, explained:
It is a well established principle of equity that a third
party who pays money to a fiduciary for the benefit of the
beneficiary, with knowledge that the fiduciary intends to
misappropriate the money or otherwise be false to his trust, is
a participant in the breach of trust and liable therefor to the
beneficiary. The Seminole General Council, requesting the
annuities originally intended for the benefit of the individual
members of the tribe, stood in a fiduciary capacity to them.
Consequently, the payments at the request of the Council did
not discharge the treaty obligation if the Government, for this
purpose the officials administering Indian affairs and
disbursing Indian moneys, actually knew that the Counsel was
defrauding the members of the Seminole Nation.
Furthermore, this Court has recognized the distinctive
obligation of trust incumbent upon the Government in its
dealings with these dependent and sometimes exploited people.
In carrying out its treaty obligations with the Indian tribes
the Government is something more than a mere contracting party.
Under a humane and self imposed policy which has found
expression in many acts of Congress and numerous decisions of
this Court, it has charged itself with moral obligations of the
highest responsibility and trust. Its conduct, as disclosed in
the acts of those who represent it in dealings with the
Indians, should therefore be judged by the most exacting
fiduciary standards. Payment of funds at the request of a
tribal council which, to the knowledge of the Government
officers charged with the administration of Indian affairs and
the disbursement of funds to satisfy treaty obligations, was
composed of representatives faithless to their own people and
without integrity would be a clear breach of the Government's
fiduciary obligation.
(Emphasis added). Accordingly, the Supreme Court remanded the case
back to the lower courts with instructions to determine whether the
United States had made payments with the knowledge that they would be
wasted and a provide a recovery for the Seminole Nation, if that were
the case.
he Federal trust responsibility has also been a means to hold the
United States accountable for its management of Indian resources , when
Congress has created a statutory framework for management of those
resources. In United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell
II), the Supreme Court held that individual Indian allottees could sue
the United States for breach of trust based on mismanagement and waste
of timber resources where Congress had enacted a statute providing a
comprehensive framework for management of the timber resources and the
primary elements of a common law trust were present: a trustee (the
United States), a beneficiary (Indian allottees), and a trust corpus
(Indian timber, lands, and funds). The Court explained:
The timber management statutes, 25 U.S.C. 406-407, 466, and
the regulations promulgated thereunder, 25 CFR Part 163 (1982),
establish the ``comprehensive'' responsibilities of the Federal
Government in managing the harvesting of Indian timber. The
Department of the Interior--through the Bureau of Indian
Affairs--exercises literally daily supervision over the
harvesting and management of tribal timber. Virtually every
stage of the process is under federal control . . . . [T]he
statutes and regulations now before us clearly give the Federal
Government full responsibility to manage Indian resources and
land for the benefit of the Indians. They thereby establish a
fiduciary relationship and define the contours of the United
States' fiduciary responsibilities . . . .
Moreover, a fiduciary relationship necessarily arises when the
Government assumes such elaborate control over forests and
property belonging to Indians. All of the necessary elements of
a common-law trust are present: a trustee (the United States),
a beneficiary (the Indian allottees), and a trust corpus
(Indian timber, lands, and funds). ``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 provided otherwise) even though nothing is said
expressly in the authorizing or underlying statute (or other
fundamental document) about a trust fund, or a trust or
fiduciary connection.'' . . .
Our construction of these statutes and regulations is
reinforced by the undisputed existence of a general trust
relationship between the United States and the Indian people.
This Court has previously emphasized ``the distinctive
obligation of trust incumbent upon the Government in its
dealings with these dependent and sometimes exploited people.''
This principle has long dominated the Government's dealings
with Indians.
Thus, in the 20th Century, the Supreme Court drew on common law
trust principles to ensure the United States' accountability for the
management of Indian lands, natural resources and trust property.
The Federal Trust Responsibility and the Indian Minerals Leasing Act
In 1924, U.S. Attorney General Harlan F. Stone ruled that executive
order Indian lands could not be leased as public lands because the
governing Indian tribe owned the beneficial interest in the mineral
estate. \2\
---------------------------------------------------------------------------
\2\ 34 Op. Att'y Gen. 171 (1924).
---------------------------------------------------------------------------
In 1938, Congress enacted the Indian Mineral Leasing Act (IMLA) to
provide general governance of mineral leasing on Indian lands. \3\
Federal Courts explain that: ``[T]he United States, acting to safeguard
the Indians in the conduct of their affairs, has established a
comprehensive statutory and regulatory scheme covering mineral leasing
on tribal lands.'' \4\ The basic purpose of the IMLA is to ``maximize
tribal revenues from reservation lands.'' \5\ The IMLA provides that:
\3\ U.S.C. 396a-396g.
\4\ United States v. 9,345.53 Acres of Land, Etc., 256 F. Supp. 603
(W.D.N.Y. 1966).
\5\ Kerr McGee v. Navajo Nation, 471 U.S. 195, __ (1985).
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[Tribal lands] may, with the approval of the Secretary of the
Interior, be leased for mining purposes, by authority of the
tribal council . . . for terms not to exceed ten years and as
long thereafter as minerals are produced in paying quantities,
that [l]eases for oil and or gas-mining purposes . . . shall be
offered to the highest responsible qualified bidder at public
auction or on sealed bids. \6\
\6\ United States v. 9,345.53 Acres of Land, Etc., 256 F. Supp. at
605 (quoting 25 U.S.C. sec. 396a-396d).
---------------------------------------------------------------------------
Under the IMLA, the Secretary serves as both the administrator and
the trustee of tribal government oil and gas resources. Acting for the
Secretary, the BIA Superintenden must take the Indian tribe's best
interests into account when making any decision involving leases on
tribal lands, and has broad discretion to consider all factors that may
affect tribal interests, including long-term economic interests,
conservation of tribal mineral resources, and production. \7\ The
Secretary's regulations implementing the IMLA explain:
---------------------------------------------------------------------------
\7\ Kenai Oil and Gas v. Dept. of Interior, 671 F.2d 383 (10th Cir.
Utah).
These regulations are intended to ensure that Indian mineral
owners desiring to have their resources developed are assured
that they will be developed in a manner that maximizes their
best economic interests and minimizes any adverse environmental
or cultural impacts resulting from such development. \8\
---------------------------------------------------------------------------
\8\ 25 C.F.R. 211.1(a).
Oil and gas leases on Indian lands entered into under the authority
of the IMLA, and which violate the IMLA are void. \9\
---------------------------------------------------------------------------
\9\ See Kenai Oil and Gas v. Dept. of Interior at 607-608 (The
leases in question, entered into in violation of the provisions of
sections 396a, 396b, 396c, and 396d . . . are void).
---------------------------------------------------------------------------
The IMLA and its implementing regulations establish a comprehensive
Federal law framework for the management of Indian trust resources, and
the BIA and the Interior Department are involved in the daily
management of Indian mineral resources under the Act. The basic
elements of a common law trust are present: the trustee (the United
States), the beneficiary (the Indian tribe), and the trust corpus (the
Indian minerals, lands, money and funds). Thus, the IMLA imposes
fiduciary obligations on the United States acting through the Secretary
in order to maximize mineral revenues for Indian tribes.
In Jicarilla Apache Tribe v. Supron Energy, Southland Royalty, and
Secretary Hodel, 782 F.2d 855 (10th Cir. 1986), the Jicarilla Apache
Tribe sued Supron, Southland and Secretary Hodel for failing to
properly value and account for oil and gas royalties due to the
Jicarilla Apache Tribe under IMLA mineral leases. Comparing the IMLA to
the timber statues and regulations at issue in Mitchell II, the 10th
Circuit en banc explained:
Leasing of minerals located on Indian reservations is also a
creature of federal statute. As in timber harvesting, the
federal government's role in mineral leasing is pervasive and
its responsibilities comprehensive. The Indian Mineral Leasing
Act of 1938, 25 U.S.C. Secs. 396a-396g (1976), requires the
Secretary to: set the ``terms'' and ``conditions'' for leasing,
id. Sec. 396b; approve leases, id. Sec. 396a; establish lease
sale procedures, id. Sec. 396b; reject unsatisfactory bids,
id.; require satisfactory performance bonds of lessees, id.
Sec. 396c; promulgate rules and regulations governing ``all
operations'' under leases, id. Sec. 396d; and approve leases
for subsurface storage when necessary to avoid waste, or to
promote conservation of resources, or to protect tribal
welfare, id. Sec. 396g. The evident purpose of the statute is
to ensure that Indian tribes receive the maximum benefit from
mineral deposits on their lands through leasing.
This interpretation is supported by the Act's legislative
history. When the Act was proposed, the Secretary of the
Interior urged that the legislation be enacted because ``it is
not believed that the present law is adequate to give the
Indians the greatest return from their property.'' Senate
Report No. 985 at 2 (1937); House Report No. 1872 at 2 (1938).
Congress responded to the need to ensure that the Indians'
welfare be protected and their natural resources be managed to
the tribes' maximum benefit by emphasizing the Secretary's
fiduciary obligations, directing the Secretary to approve lease
sales only when they are ``in the interest of the Indians.''
Interior has promulgated extensive regulations for managing
leases under the Act. See 25 C.F.R. pt. 211 (1982). The
regulations stress that the Secretary must act in the best
interests of the tribes. See, e.g., id. Secs. 211.3(b), .6(a),
.9(b)(1), .12(a), .19, .21(a), .22, .27. Additional
regulations, published in 30 C.F.R. Part 221, require the
government to maintain comprehensive records of price and
production, and to determine royalties. 30 C.F.R. Sec. 221.12.
These regulations detail in exhausting thoroughness the
government's management and regulatory responsibilities. See
id. pt. 221.
Because the statutes and regulations contain such an explicit
and detailed enumeration of duties, in my view Mitchell II
compels the conclusion that Congress intended the Secretary to
be a trustee.
The 10th Circuit ruled that the Secretary breached his trust
responsibility to the Jicarilla Apache Tribe by failing to administer
royalty payments for the Tribe's gas resources in a manner that would
maximize the return to the Tribe. In addition, the Court upheld the
trial court's determination that the Secretary had breached his trust
responsibility by failing to insure that lessees complied with the
terms of tribal oil and gas leases and by being negligent in monitoring
for potential drainage by lessees.
The Administration's Stated Policy
For the past 30 years and more, the Executive Branch and Congress
have promoted the Federal government-to-government relationship with
Indian tribes. The guiding executive branch pronouncement on this
policy is President Clinton's Executive Order 13175 (2000), which
directs Federal agencies in their dealings with Indian tribes to be
guided by the fundamental principles that:
The United States has a unique legal relationship with Indian
tribal governments as set forth in the Constitution of the
United States, treaties, statutes, Executive Orders, and court
decisions. Since the formation of the Union, the United States
has recognized Indian tribes as domestic dependent nations
under its protection. The Federal Government has enacted
numerous statutes and promulgated numerous regulations that
establish and define a trust relationship with Indian tribes.
Our Nation, under the law of the United States, in accordance
with treaties, statutes, Executive Orders, and judicial
decisions, has recognized the right of Indian tribes to self-
government. As domestic dependent nations, Indian tribes
exercise inherent sovereign powers over their members and
territory. The United States continues to work with Indian
tribes on a government-to-government basis to address issues
concerning Indian tribal self-government, tribal trust
resources, and Indian tribal treaty and other rights.
The United States recognizes the right of Indian tribes to
self- government and supports tribal sovereignty and self-
determination.
More specifically, agencies are directed to ``respect Indian tribal
self-government and sovereignty, honor tribal treaty and other rights,
and strive to meet the responsibilities that arise from the unique
legal relationship between the Federal Government and Indian tribes.''
The Bush and Obama Administrations have pledged to honor the Clinton
Executive Order on Consultation and Collaboration with Indian Tribal
Governments.
III. Breach of Trust Case--Fiduciary Excpetion
In January 2002, the Jicarilla Apache Nation filed a breach of
trust suit against the Federal Government in the U.S. Court of Federal
Claims (CFC) for mismanagement of the Nation's trust funds and trust
assets. The trust funds at issue are held in trust and managed by the
United States for the Nation.
From December 2002 to June 2008, the Government and the Nation
engaged in an alternative dispute resolution process. During this time,
the parties produced thousands of documents. The Government withheld
226 potentially relevant documents claiming that they were protected
from disclosure by the attorney-client privilege, the attorney work-
product doctrine, or the deliberative-process privilege.
With no apparent end to the ADR process, in 2008 Nation requested
that the case placed on the active litigation docket. The CFC divided
the case into phases for trial and set a discovery schedule. The first
phase involves the Government's management of the Nation's trust fund
accounts from 1972 to 1992 and our claim that during this period the
Government failed to invest its trust funds properly, by failing to
maximize returns on our trust funds, investing too heavily in short-
term maturities, and failing to pool our trust funds with other tribal
trusts. During the discovery process, the Nation filed a motion to
compel the Government to produce the 226 withheld documents. The
Government withdrew its deliberative-process privilege claim and agreed
to produce 71 documents, but continued to invoke the attorney-client
privilege and attorney work-product doctrine for the remaining 155
documents. Among other claims, the Government maintained that those
documents contained advice given by the Department of the Interior
Solicitor's Office (and other federal legal offices) about acceptable
investments for tribal trust assets.
The Nation asked the CFC to require the Government to produce these
documents on the basis of the ``fiduciary exception'' to the attorney-
client privilege, a well-established exception in the common law of
trusts. It provides that a trustee cannot withhold from the beneficiary
any legal advice about the management of trust assets. The
justification for this exception is two-fold. First, the trustee is not
the exclusive client of the attorney rendering advice, but rather is
obtaining that advice as a representative of the trust's beneficiaries.
Thus, the trustee does not have an attorney-client privilege that would
exclude the beneficiary from access to the legal advice. Second, the
trustee has a duty to disclose all information related to trust
management to the beneficiary. This duty overrides the attorney-client
privilege, especially where the information sought by the beneficiary
is relevant to an alleged breach of a fiduciary duty.
The CFC accepted the Nation's ``fiduciary exception'' argument and
ordered the Government to produce the attorney-client documents to the
Nation. The Government appealed the CFC's ruling to the U.S. Court of
Appeals for the Federal Circuit. The Federal Circuit affirmed the CFC's
ruling. The Government sought review by the Supreme Court. The Court
agreed to hear the appeal and heard oral arguments in April 2011.
It's important to note that the Nation had a strong legal basis for
seeking court ordered production of these documents. At that point,
several decisions by federal courts had favorably applied the
``fiduciary exception'' to the Government in previous breach of trust
cases. Moreover, the Court of Federal Claims and the U.S. Court of
Appeals for the Federal Circuit agreed with our position. All of the
appellate litigation was instigated by the Government in an apparent
attempt to create an adverse precedent that it could rely on in
defending against the other pending tribal trust lawsuits.
The Supreme Court's Decision
On June 13, 2011, in a 7-1 decision, the Supreme Court
unfortunately ruled in the Government's favor with respect to whether
the ``fiduciary exception'' can be applied to the Government. See 131
S.Ct, 2313 (2011). The majority held that tribes suing the Government
for breach of trust cannot require the Government to disclose documents
containing legal advice the Government obtained regarding the
management of tribal trust assets.
Justice Sotomayor agreed with the Nation's position and expressed
her views in a dissenting opinion. (One Justice, Elena Kagan, recused
herself and did not participate in the decision of the case because she
had served as the United States Solicitor General when this case was
making its way through the appeals process).
The majority opinion, written by Justice Alito, ruled that when the
Government manages Indian trust property, including trust funds, it
does not act as a private trustee and is not subject to the general
common law trust principles that are applicable to private trustees.
Rather it acts in its sovereign capacity as Government and in the
furtherance its own sovereign interests:
Although the Government's responsibilities with respect to the
management of funds belonging to Indian tribes bear some
resemblance to those of a private trustee, this analogy cannot
be taken too far. The trust obligations of the United States to
the Indian tribes are established and governed by statute
rather than the common law, and in fulfilling its statutory
duties, the Government acts not as a private trustee but
pursuant to its sovereign interest in the execution of federal
law.
Id. at 2318. Accordingly, the majority held that the Government is
not subject to the common law ``fiduciary exception.''
The majority reasoned that the two justifications for the
``fiduciary exception'' do not apply to the Government. First, when the
Government obtains legal advice regarding the management of Indian
trust funds, it does so not as a mere representative of the Nation, but
in its own sovereign capacity and in furtherance of its own interests.
``For that reason,'' the majority held, ``when the Government seeks
legal advice related to the administration of tribal trusts, it
establishes an attorney-client relationship related to its sovereign
interest in the execution of federal law. In other words, the
Government seeks legal advice in a `personal' rather than a fiduciary
capacity.'' Id.. 2327-28. That advice is privileged and not subject to
disclosure.
Second, the majority held that the Government does not have a
general common law duty to disclose information to Indian trust
beneficiaries. The majority stated that ``common-law principles are
relevant only when applied to a `specific, applicable, trust-creating
statute or regulation.''' Id.. at 2329. In this case, the majority held
that the relevant statute--25 U.S.C. 162a(d)--requires disclosure of
periodic statements of trust fund performance and account balances, but
it does not require the disclosure of all information related to the
administration of the trust funds. The majority stated: ``We will apply
common-law trust principles where Congress has indicated it is
appropriate to do so.'' Id. at 2340. In view of the limited duties
mandated by Congress in 25 U.S.C. 162a(d), the majority refused to
apply common-law trust principles to require the disclosure of
additional information.
Finally, the majority noted that the Government pays for legal
advice out of its own funds, instead of trust funds, and that the
documents containing the advice are ``the property of the United
States.'' Id.. at. 2330. The Court considered these to be significant
factors in deciding who ought to have access to the documents.
Justice Ginsburg wrote a concurring opinion that was joined by
Justice Breyer. They said the majority opinion went too far by
indicating that the government may have the power to withhold
additional documents from tribes (in addition to documents protected by
the attorney-client privilege).
Justice Sotomayor wrote a dissenting opinion. She said that the
statutory framework governing Indian trust funds is adequate to allow
courts to apply general trust principles, including the common law duty
to disclose information to trust beneficiaries:
We have never held that all of the government's trust
responsibilities to Indians must be set forth expressly in a
specific statute or regulation. To the contrary, where, as
here, the statutory framework establishes that the relationship
between the government and an Indian tribe bears the hallmarks
of a conventional fiduciary relationship, we have consistently
looked to general trust principles to flesh out the
government's fiduciary obligations.
Id. at 2339.
Implications of the Court's Decision
This decision is extremely disappointing. It prevents Indian tribes
from obtaining information about the management of their trust assets
that is available to ``private'' trust beneficiaries who sue their
trustees for breach of trust. It turns Indians into ``second class
beneficiaries'' in terms of their rights to receive information and to
assess their trustee's performance of its fiduciary obligations. The
Supreme Court held that the United States is different from other
trustees and is not bound by the same rules. The Supreme Court majority
discussed in abstract terms how the Government, as a ``sovereign,'' is
different from other trustees and stated that ``the Government has too
many competing legal concerns'' to permit a case-by-case inquiry as to
whether it has to balance competing interests in a particular case.
This rationale is astounding in light of the fact that there were NO
competing interests set forth in the record.
The decision is also troubling because it limits the applicability
of general trust law principles to the Government's management of
Indian trust assets. The majority stated that ``common-law principles
are relevant only when applied to a `specific, applicable, trust-
creating statute or regulation,''' and further that the courts will
only ``apply common-law trust principles where Congress has indicated
it is appropriate to do so.'' Previously, the Court had required
specific trust-creating statutes only to establish jurisdiction under
the Tucker Act for claims for money damages. The Court's decision now
appears to impose this requirement on all trust claims against the
Government, including claims for non-monetary relief, like the Nation's
claim for the production of documents in this case.
The majority asserted that ``[t]he Government assumes Indian trust
responsibilities only to the extent it expressly accepts those
responsibilities by statute.'' Justices Ginsburg and Breyer, in their
concurring opinion, criticized this language as being unnecessarily
broad. Justice Sotomayor, in her dissent, expressed fear that the
Court's decision may ``reinvigorate the position of the dissenting
Justices in [the Court's previous decisions in White Mountain Apache
and Mitchell II, who rejected the use of common-law principles to
inform the scope of the Government's fiduciary obligations to Indian
tribes.'' From now on, the Government will cite this language to
attempt to minimize its fiduciary duties to Indians and to avoid
liability for its mismanagement of Indian assets.
As Andrew Cohen wrote in the Atlantic, an unsettling theme that
emerges from the Supreme Court's opinion is that the ``trust''
relationship between the Government and Indians ``is less about 'trust'
and more about the exercise of [the Government's] sovereign authority
over a vanquished people.''
Legislative ``Fix''
We are very disappointed by the Supreme Court's decision and
concerned about the negative implications on the Trust Responsibility
as well as the detrimental impact for other Indian tribes. Fortunately,
Congress can correct this decision through legislation. We suggest that
Congress amend the American Indian Trust Fund Management Reform Act of
1994, by adding a new provision to 25 U.S.C. 162a(d):
New provision: (9) Providing Indian tribes, upon request, with
any documents relating to the Secretary's management of the
tribe's trust funds and natural resources except for work
product relating to litigation or potential litigation between
the United States and a tribe or individual Indian.
We strongly believe that Congress should immediately take action to
correct this detrimental decision.
IV. Trust Responsibility: Trust Lands and Mineral Resources
The Nation also takes this opportunity to raise a set of other
trust responsibility issues which relates to our trust land and mineral
resources.
Oil and Gas Exploration and Production
The Nation continues to experience challenges with oil and gas
lease compliance primarily due to the large amount of acreage under
lease and/or production, the number of wells in service, the extensive
gas gathering systems operating throughout the Reservation, the large
number of operators and related vendor service providers on the
Reservation, to name a few. Under these circumstances, there is an
acute need for additional regulatory oversight including enhanced
federal coordination with the Nation and increased funding to fully
support tribal regulatory needs.
As discussed above, oil and gas leasing activity on our Reservation
is conducted in accordance with the IMLA or the IMDA, and through these
laws, Congress created a statutory fiduciary relationship, whereby the
government acts as a trustee for the tribes in the context of mineral
leasing of tribal trust resources. Accordingly the three separate
agencies within the Department of Interior (Department) have
jurisdiction over Indian leasing: the Bureau of Indian Affairs (BIA),
the Bureau of Land Management (BLM), and the Office of Natural
Resources Revenue (ONRR). The Nation exercises concurrent regulatory
jurisdiction with these federal agencies over oil and gas leasing
activities, and the Nation imposes and collects tribal severance taxes.
Yet, though we have made tremendous progress of the years working
with our federal partners, the Nation believes there is room for
improvement as far as coordination in the management and regulation
among the Nation and the federal agencies. The Nation requests that
Congress exercise oversight to consider a reform of current policies,
procedures, practices and systems of the Department, the BIA, the BLM,
and the ONRR in order to ensure the proper and efficient discharge of
the Secretary's trust responsibilities regarding oil and gas leasing on
our Reservation.
Bankruptcy Filings by Oil and Gas Lessees
The Nation is concerned about the bankruptcy filings involving
entities that hold or assert rights to IMLA leasing interests covering
thousands of acres on our Reservation. In some cases, it is apparent
that these bankruptcy filings have been pursued as a means to
circumvent federal and tribal laws. The Nation has already been
involved in several bankruptcy proceedings to protect our interest in
these IMLA leases. To address this alarming circumvention of federal
law and regulations, the Nation proposes that legislative or
administrative fixes be put into place. Specifically, the law should be
made clear that prior to any assignment or assumption of tribal oil and
gas leases, especially in the context of bankruptcy cases, both the
tribal mineral owner and the BIA must review and duly approve. A
related issue is compliance by industry and enforcement by the BIA. It
is important that Congress protect the integrity of IMLA leases by
ensuring that federal and tribal oil and gas regulatory authority is
not diminished through bankruptcy filings.
Split Mineral Estate Development
An important aspect of the trust responsibility is to protect the
integrity of the Nation's sovereignty and control of our lands and the
development of our resources. This extends to the development of the
split mineral interests on our Reservation. As noted above, our
Reservation was not subject to the Allotment Policy and Law and
therefore we retain 100 percent of the surface and mineral estate of
our original Executive Order lands. However, the Nation subsequently
purchased several large ranches adjacent to the Reservation and such
lands and minerals were taken into trust and added to the Reservation.
One particular ranch was taken into trust subject to a split mineral
estate.
As background, in 1985, the Nation purchased a 55,000 acre ranch
contiguous to our northeastern boundary. At the same time, we purchased
an approximate undivided twenty-five percent (25 percent) interest in
and to all oil, gas, and other minerals owned by the seller, who held
seventy-five percent (75 percent) of the mineral estate. A third party
entity holds the other twenty-five percent (25 percent) of the mineral
interests. In November 1987, the Nation conveyed the surface lands of
this property to the United States, to be held in trust. In December
1987, the Nation conveyed its interest in the mineral estate to the
United States. On or about March 10, 1988, pursuant to 25 U.S.C. 465,
the United States accepted these conveyances and approved the trust
status of the surface lands and the Nation's undivided interest in the
subsurface mineral estate. On or about September 1, 1988, pursuant to
25 U.S.C. 467, the United States added the surface lands and the
Nation's undivided interest in the subsurface mineral estate to the
Reservation. See, Proclamation of Certain Lands as Part of the
Jicarilla Apache Reservation, 53 Fed. Reg. 37355-02 (Sept. 26, 1988).
In 2006, more than twenty years after the Nation purchased the
ranch and eighteen years after the United States took into trust the
surface lands and mineral interest the Nation purchased, the owner of
the majority mineral interest entered into a lease with a third party
for mineral development. The lease was not reviewed by the Nation or
the BIA even though it purported to lease the Nation's trust lands and
its undivided trust mineral interest. BIA is responsible to review and
approve the leasing of tribal lands and mineral resources, and is
further required to secure our consent. The failure to exercise these
trust duties constitutes a breach of the Federal Government's trust
responsibility.
Incidentally in July 2006, the Solicitor's Office of the Department
of the Interior essentially determined that neither the Nation nor the
United States could ``stop'' development, which has lead to a confusing
opinion creating more questions than answers. In particular, the
Solicitor's opinion ignores Supreme Court decisions, which clearly hold
that Indian trust land cannot be leased or otherwise encumbered without
the approval of Congress. Congress has passed statutes which provide
such approval subject to important protections, such as the IMLA and
the Indian Reorganization Act. The fundamental reason for these laws is
that the United States to hold title to Indian trust land, and
therefore, the United States must protect the beneficial interest of
the Indian nation. The Nation requested that the Solicitor rescind or
modify its legal opinion and further requested to meet directly with
the Solicitor. Our requests were not granted, though the law is clear
that both federal approval and tribal consent are required prior to any
development or encumbrance of tribal trust minerals. Congress should
exercise its oversight authority over the Department of the Interior to
ensure that these important and fundamental principles are fully
adhered to, especially in our case where we have worked so hard to
protect reservation lands.
Dual Taxation of Oil and Gas Production in Indian Country
Our Nation heavily depends on our oil and gas production as the
primary means of generating governmental revenue. Our Reservation is
located in the San Juan Basin, a well-known prolific source of oil and
gas production for over seventy (70) years. Oil and gas development
began on our Reservation during the 1950's, under the leasing authority
of the Secretary of the Interior pursuant to the IMLA. Throughout those
early years, the Secretary negotiated and entered into oil and gas IMLA
leases on the Nation's behalf leaving us with a modest royalty interest
in the development and production of our oil and gas reserves. In the
1970's and 1980's the Nation became more active in the development of
our resources and won a significant legal ruling in the U.S. Supreme
Court in 1982. In that seminal case, Jicarilla Apache Tribe v. Merrion,
455 U.S. 130 (1982) the U.S. Supreme Court recognized our inherent
right to regulate our lands and resources within our Reservation, and
upheld our sovereign authority to impose our own severance tax on the
production of our oil and gas resources. That same year, Congress
passed the Indian Minerals Development Act (IMDA) which authorized
Tribes to negotiate energy deals directly, though subject to
Secretarial approval. The tremendous impact of the Merrion case coupled
with the enactment of the IMDA provided our Nation and other Tribes
powerful resources and tools to expand our energy development
initiatives.
Following our victory in the Merrion case, the Supreme Court
considered another case arising from our Reservation which involved an
oil and gas company's challenge to the imposition of the New Mexico Oil
and Gas Severance Tax for activities on the Reservation arguing that
those taxes were preempted by the State and Tribal regulatory schemes.
In that case, States were granted permission to impose severance taxes
on non-Indian activities involving the on-reservation production of
Indian oil and gas reserves in the 1989 United States Supreme Court
decision Cotton Petroleum v. New Mexico, 490 U.S. 163 (1989), which
established a dual taxation burden on tribal non-renewable trust
resources.
Three years later, Congress acknowledged the problem with this type
of dual taxation. In the Energy Policy Act of 1992, Pub. L. 102-486, an
Indian Energy Resources Commission (``Commission'') was established.
Among several other objectives, the Commission was to (1) develop
proposals to address the dual taxation of the extraction of mineral
resources on Indian reservations; (2) develop proposals on incentives
to foster the development of energy resources on Indian reservations;
(3) identify barriers or obstacles to the development of energy
resources on Indian reservations, (4) make recommendations designed to
foster the development of energy resources on Indian reservations and
promote economic development; and (5) develop proposals on taxation
incentives to foster the development of energy resources on Indian
reservations including, but not limited to, investment tax credits and
enterprise zone credits.
In June 2001, the Nation attempted to address the dual taxation
issue working with our then senior Senator, Pete Dominici, who
introduced S. 1106, a bill to provide a tax credit for the production
of oil or gas from deposits held in trust for, or held with
restrictions against alienation by, Indian tribes and Indian
individuals. A year later, the National Congress of American Indians
passed Resolution #BIS-02-060 to include S. 1106 in the National Energy
Bill during conference between the United States House of
Representatives and the United States Senate. However, the proposed
bill was referred to the Committee on Finance, and was not passed into
law.
To date, the issues the Commission was to address have not been
fully addressed by either the Commission or Congress. As tribes
increase their economic development efforts, issues with dual taxation
also increase. Dual taxation is an impediment and deterrent to economic
development on Indian trust and restricted land. Dual taxation of
tribal oil and gas reserves creates an adverse economic environment
which impedes self-determination and strong economic development in
Indian Country. The United States Congress has the power to address the
dual taxation of tribal non-renewable resources by providing a Federal
tax credit for the production of tribal resources, much like the one
Senator Dominici introduced in the 107th Congress.
It is important to note that the State of New Mexico enacted a
state severance tax credit for producers who developed new wells after
1995. This is an important incentive to address the dual taxation
issue. However, it also important to note that the many of the existing
wells on the Nation's lands were placed in service prior to 1995, and
that many other States with oil and gas producing tribal lands do have
similar law in place.
Thus, the enactment of a Federal tax credit for the production of
oil and gas produced on Indian lands would be helpful in addressing
this problem. The creation of such a tax credit would not only address
the dual taxation of tribal non-renewable resources, but would also
help stimulate tribal economies, and contribute to the United States
energy policy of boosting domestic production to decrease reliance on
foreign production. It is truly ironic that, as America seeks greater
energy independence and undertakes hazardous energy sources such as
nuclear energy and off-shore drilling, Federal caselaw burdens the
development of safe Native American energy resources with dual
taxation. This must end.
We respectfully request an opportunity to work with you to craft a
provision outlining Federal tax credit for the production of oil and
gas produced in Indian Country. This will certainly strengthen the
trust responsibility to protect tribal trust lands and mineral
resources.
V. Conclusion
In closing, the Nation appreciates the opportunity to appear before
this Committee and provide testimony on this extremely important
subject. We look forward to working with the Committee to strengthen
and enhance the Trust Responsibility.
The Chairman. Thank you very much, Ms. Atcitty.
Mr. Halbritter, in your testimony you stated that ``flawed
implementation'' of the trust responsibility is where Tribes
are most affected. What can Congress and the Administration do
to improve implementation of the trust responsibility?
Mr. Halbritter. Well, we are recommending that a review
commission be established. One was in the past, but one that
can investigate and be empowered to help understand this issue
better.
In our particular situation, local governments, State and
local governments, contradict the intent of the way our
protections and our treaties and the trust responsibility
exist. And oftentimes the Government ignores our request,
despite our treaty guarantees, to have the opportunity to be
protected, the opportunity to be heard, the opportunity to
appeal to the Federal Government. It is right in our treaties
which as we know by the Constitution are the supreme law of the
land.
The Federal Government often, our position is often
determined by their will, or lack of will, to involve
themselves as a moderator when we are in conflict with State
and non-Federal governments. And oftentimes, as we know, the
facts determine the outcome of a case. And a lot of times our
issues are overtaken by lawyers.
And so, when the issue is shaped by the local courts, we
are the minority in this Country. The locals will always be in
the majority. They will always have the more popular will
opposing us in a conflict. That is where the Federal trust
responsibility is critical, to help moderate and alleviate the
change in leverage in your relationship.
Every case now that comes before this court that is
alienated from Indian life, I mean, I do not know if any of
these courts often really know what is going on in the
communities and as a result what is decided in the courtroom is
somewhat limited. Whereas the Federal Government has
representatives that can visit Indian reservations, can talk to
Indian people and get to the heart of the issue and help when
our position is so impeded by the fact that we do not represent
the majority where we are located. We are the minority. We are
often picked on and vilified when there is an issue.
And the media also plays into that as well. Sure, we do not
expect Congress to be able to do anything about the media, but
they can certainly have a role and they have an obligation
under law and a duty by honor as well to work with Indian
nations to resolve these issues. And that is our preferred
choice. It is not to be in the courts but to be at a table
where we can negotiate and discuss these things just like the
original relationships were established by negotiation and
treaty.
The Chairman. Thank you very much.
President Sharp, you are a member of the Commission on
Indian Trust Administration and Reform that was created by the
Department of Interior following the Cobell settlement. Can you
describe what the end product will be for the Commission? And
what impact you think that will have on Tribal governments and
the Indian people?
Ms. Sharp. Thank you for that opportunity and question,
Chairman.
We have had many discussions about our preliminary work,
about organizing the Commission and certainly are looking at
the goals of the Commission. The goals include providing a
comprehensive evaluation of the trust services, management
functions. We hope to deliver a very well thought out, a very
well informed set of recommendations following a comprehensive
evaluation.
We have recognized that there is not going to be a single
person that is going to have enough expertise to look at the
entire system, that we are going to have to reach out to
subject matter experts in leasing and various other topics that
are going to require expertise.
So, we hope to deliver not only a set of recommendations
that is going to provide a roadmap for all to look at, how we
can adjust, realign and redefine that relationship with the
United States, but those recommendations are going to be based
on a sound evaluative process, a very deliberative evaluative
process, and a process that includes the direct engagement of
Tribal leadership, Tribal organizations and individual
allottees.
We have an approach in which we are going to be reaching
out to those in Indian Country . They have four hearings that
are set to go out into the field, four listening sessions. And
so, we are hoping that we can deliver not only a product that
is going to be comprehensive but one that will be useful.
And to your second question of what value will that have
for Indian Country , we believe that if these recommendations
and evaluation is Tribally driven, not Administratively driven,
that there is going to be a vested interest in the outcome and
Tribal leaders will be able to work into the, work in
partnership with, the Commission. Recommendations are going to
be real, they are going to be meaningful and they are going to
make a difference in the future relationship that we have with
the United States.
The Chairman. Thank you very much.
Vice-Chairman Baptiste, given the Department of Interior's
recent efforts in settling long-standing trust mismanagement
cases, what do you think the next step is to affirm the trust
relationship between the Federal Government and Tribes?
Mr. Baptiste. I thank you for that question. I believe
that, you know, this sets a tone for further involvement in
Tribes. It also evaluates and sets a standard that might guide
those Tribes. And those individual Federal agencies, they have
also implemented their own government-to-government
capabilities to work with Tribes across the Nation.
I think that the Nez Perce Tribe, in its own, we have our
own government-to-government consultation process. I think a
lot of the Tribes across the Nation would be able to develop
their own, to be able to guide themselves. That way you can
implement that when a Federal agency is developing a policy
that concerns Tribes, all of the existing ones, the Department
of Energy in itself has one and I think we work well with them.
I think that this, this last go around will help set the
tone for that, again, will help provide Tribes and push the
momentum. I think the momentum that we are using right now, I
think, will build, I think with your help, the Committee's
help. I think that we can prioritize some of the Federal
agencies' Indian policies to change and format with the working
group that Ms. Sharp is a part of. I think that also will be
helpful to try to provide some guidance for them.
But they have to also be willing to come across and educate
themselves to Indian policy and the Indian, I guess, how Tribes
are operating and our point of view.
The Chairman. Thank you, Mr. Baptiste.
Shenan Atcitty, the Congress is committed to looking to the
recent crisis at J.P. Morgan and the transactions that led to
billions of dollars in losses to their shareholders. Congress
and the shareholders are seeking transparency into how
decisions were made, with the impact these decisions will have
on shareholders and the industry.
My question to you is, what correlation do you see in the
Supreme Court's recent decision in the Jicarilla case?
Ms. Atcitty. With the J.P. Morgan situation?
The Chairman. Yes. Well, the idea is to access information.
Yes.
Ms. Atcitty. Well, I think the correlation is, with respect
to the private beneficiary, I doubt that they are going to have
to go to the Supreme Court to get access to records. And I
think the correlation is a fairness one.
You know, you have got a debacle of that level and
certainly the shareholders are entitled to know how their, how
decisions were made with respect to management of their trust
assets. In our situation, unfortunately, the Supreme Court sees
it differently. You know, we, too, are beneficiaries. Those are
Tribal monies, not Federal monies. But we are not entitled to
see how decisions were made because of this attorney-client
claim. I think that probably the, you know, how it correlates
and shows the unfairness of the situation.
The Chairman. I see.
Let me get back to Mr. Halbritter. When speaking on the
trust responsibility, we focus on the impact it has on Tribes.
In your testimony, you noted that a strong Federal Tribal trust
relationship also benefits local communities. Can you expand on
that thought?
Mr. Halbritter. Well, yes. The fact that we are a minority
politically in the community in which we live, the will of the
community affects the leadership and how they relate to us. And
our desire is to negotiate and work things out with the
community because it is our legacy as Oneida people. We were
allies in this Country in the Revolutionary War.
But for example, the community does not always look at how
much they benefit. We are the, in a 16 county upstate New York
region, we are the largest employer. We have nearly 5,000
people working for us in an area that is economically deprived.
We put in about $1 billion in infrastructure and about $2
billion in salaries and vendor and payroll in the local
community. And yet, they still oppose us on every level that
they possibly can along with the State. And it is largely
political.
The Federal Government, their trust relationship has always
been in a position to help us balance the table when we are
trying to have a discussion about resolving our issues. And now
with the courts making decisions, the courts are making
decisions eroding the sovereignty of Indian nations. They do
not want to negotiate. They want everything to go to court and
they are just gambling and believing that the courts are going
to rule against the Indian nations as you hear about the legal
case.
The place for our people, we believe, is at the negotiating
table, like we negotiated treaties, as sovereigns, as
government-to-government. And that is what the trust
responsibility and the years of having the Federal Government
play such a prominent role is to not allow that to happen where
the local governments and communities are eroding and
conflicting with Indian nations. And we create great economic
opportunity in the region.
With the Federal Government, we can resolve some
outstanding issues so that we can have a more peaceful
existence for future generations.
The Chairman. Thank you very much for that answer.
Mr. Baptiste, in your testimony, you applaud the Government
settlement of trust mismanagement cases but say that the larger
question of the current state of the trust relationship between
the Tribes and the United States is not addressed. How do you
think the current status of the trust relationship can be
addressed by the Administration and in Congress?
Mr. Baptiste. Thank you. I believe, you know, the trust
asset settlement, you know, like I said before, has provided
the answer or provided a clean slate to work through. But I
believe that it is through the true consultation process.
I know there was a Memorandum and each Federal agency had
an opportunity to submit their consultation process with
Tribes. It is also the implementation of those consultation
policies that, I think, will provide a success for Tribes. If
they are not implemented properly and without, you know, the
guidance of the Tribes, I think we will remain at the kind of
juncture where we are at where we can, you know, either improve
it or work with a broken system.
I think that we all identify that there are flaws in the
trust relationship. We are working through that. I think the
Tribes have ultimate faith that it will continue and get
better, we think, with the work of the Committee.
With the Administration right now, we have an opportunity
to better that relationship. But it, it lies within the hope of
those implementations of those consultation policies and those
individual Federal agencies and hopefully that those sister
agencies will work together and collaborate so that a lot of
them will not duplicate the same service and that they
understand each other.
Each Tribe has a different working relationship, or even a
social or a need or a cultural economic need, and those will
kind of drive how they operate with the Federal agencies. But,
I think in the end it is just those policies, those individual
Federal agencies that will help drive this and better our trust
relationship.
The Chairman. Thank you.
President Sharp, in your testimony you noted that
improvements are needed in department's self-governance
program. What specific recommendations do you have for
improving this program?
Ms. Sharp. Yes. The self-governance program, as I
mentioned, the original vision that Tribal leaders had for
self-governance was an ability for us to freely determine our
political, economic and social futures. We received block
grants of dollars through compacts and were allowed the
flexibility to adjust resources from education and natural
resource and we have that flexibility, as I mentioned in my
testimony, of being managers of Federal dollars.
We do not have the freedom or ability to make fundamental
decisions affecting our lands, our resources, our people
outside of that framework that is based on this idea that we
are somehow incompetent, that, you know, we have this
dependency, this ward-guardian relationship.
I will give you an example. When the Quinault Nation had
worked on a comprehensive restoration effort for our salmon and
our blue back stocks, another Federal agency took action that
was directly not only not respecting our science that was based
on Bureau of Reclamation Reports and other reports, but they
took action that directly undermined our efforts.
And so, the bureaucracies that we face within agencies that
still, and it was mentioned by another panel, or by a fellow
panelist here, that there needs to be some way of enforcing the
relationship. When we are at odds, whether it based on science,
whether it is based on policy, whether it is based on a value
system, if there is a conflict we need to have a means by which
we can come to the table as equal sovereigns.
The United States does not enter into other countries to
take unilateral action affecting resources, etc., and that same
type of equality in a relationship with Indian nations must be
respected. So, if we look to international law, if there is a
dispute there is a three-step process of official talks, of
negotiation. But by all means, those parties come to the table
in equity. There is no ability to take unilateral action. And
so, we need some means of enforcing and supporting our views
and our position when it comes to implementation of that
relationship.
The Chairman. Thank you.
I want to thank this panel for your answers to our
questions. We may have further questions that we will place in
the record and also from other Members as well.
As you note, you know, my questions have been questions
which are looking for answers as to how the Congress can make a
difference. And as you know, I am looking at the Tribes to try
to assess this and we will see what we can do to help you out
on this because this is a huge, as I continue to say, trust
relationship and a Carcieri fix is my high priority. And I
think it will help resolve, you know, many problems that are
there now. But we need to get all of the information we can.
So, you know, help us try to bring that about.
So, I want to say mahalo, thank you to you and all the
other witnesses. Today's testimony provides for me and for the
Committee a greater understanding of the trust relationship
that exists between the Federal Government, the Tribes and the
Indian people. And so, again, I thank you for helping us out on
this and we will continue to work together to help bring this
about.
What is clear is that the trust relationship has existed,
as you mentioned, since the formation of this Country and the
first government-to-government contacts between the United
States and the Indian Tribes. Even though the implementation of
that trust relationship may change based on legal decisions,
from Administration to Administration and from Congress to
Congress, the trust responsibility endures. It is the
obligation of Congress, the Administration and the courts to
uphold the legal, moral and fiduciary responsibilities that are
at the core of the trust relationship between the Federal
Government and the Tribes.
So, I look forward to continuing this dialogue with our
witnesses at today's hearing and other interested parties and
stakeholders. I also pledge my best efforts to keep the
enduring principles embodied in the trust relationship at the
forefront whenever this Committee conducts business on behalf
of the Native peoples of the United States. And we will
continue to strive to do that.
So, again, mahalo. Thank you very much. Have a safe way
home.
Today's hearing is adjourned.
[Whereupon, at 4:03 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Julie Kitka, President, Alaska Federation of
Natives
______
Prepared Statement of Hon. Leonard Masten, Chairman, Hoopa Valley Tribe
______
Prepared Statement of Hon. Edward K. Thomas, President, Tlingit and
Haida Indian Tribes of Alaska
______
Prepared Statement of Hon. John Yellow Bird Steele, President, Oglala
Sioux Tribe