Comment on Remedies for Indian Tribes in Trust Relationship Cases

Brett J. Stavin(J.D. Candidate, May 2013, Arizona State University, Sandra Day O’ConnorCollege of Law) recently published his comment entitled, ResponsibleRemedies: Suggestions for Indian Tribes in Trust Relationship Cases, 44 Ariz.St. L.J. 1743 (2012).  The introductionto the article is available below:

Thefiduciary, or trust, relationship between the federal government and the Indiantribes is a “cornerstone” of federal Indian law.  It has been branded as justification for thefederal government’s overbearing and sometimes outright colonialist treatmentof Indian tribes.  At the same time, ithas been cited by the federal government itself as justification for specialbeneficial treatment of Indians.  It has also been described as a “legalchameleon,” as it has been a neither stable nor coherent doctrine.  Indeed, it has transformed throughout theyears “to accommodate the policy needs of the historic era in question.”

Pursuantto this doctrine, the federal government acts as a trustee and thereby hasextensive control over the development and management of many assets belongingto the Indians.  Such assets include vastdeposits of coal, oil, uranium, and other valuable resources.  The government also controls the funds raisedthrough exploitation of these resources.  Unfortunately, the governmenthas often carried out its fiduciary duties with conflicts of interests, withcarelessness, or simply in bad faith.  To name just a fewexamples: it has caused $14 million worth of damage to historic sites on Indianlands; it has sold a right-of-way worth $50,000 for only $2,500; and it impededJim Thorpe’s travel to the 1912 Stockholm Olympics by wrongfully withholdingtrust funds.

Thetrust doctrine originally developed through federal common law.  Its roots can be traced to Cherokee Nation v.Georgia, the second case in the Marshall Trilogy.  The doctrine wasinitially a source of protection for tribes, but at the turn of the twentiethcentury it became a source of congressional plenary power.  The doctrine changed dramatically in the early1980s when the Supreme Court decided the Mitchell cases and Nevada v. UnitedStates.  Since these cases were decided, the trustrelationship has been increasingly governed by statutory obligations, and thecommon law has played only a marginal role.

Indiantribes have a historically poor record in the court system. This generality iswell-illustrated by the trust relationship cases.  Tribes have not adequately considered thatwhen they become adversaries of the federal government–such as inlitigation–the trust duties that courts are willing to enforce automaticallychange.  By the very development of an adverseproceeding, the government can claim sovereign interests which courts typicallyrecognize and accommodate. This has become increasingly visible since theMitchell cases and Nevada.

PartI of this comment will examine the formation of the trust doctrine, itsevolution into a form of governmental power, enforcement of trust duties, andthe current state of the law as exemplified by some of the most relevant cases. Part II will discuss possible strategiesfor tribes in breach-of-trust cases.  Specifically,it will be suggested that tribes should approach these cases with an open mindand seek equitable or declaratory relief as opposed to money damages when it ispractical to do so.

Thereis evidence that the judiciary is returning to its early-1900s reasoning–thatthe trust doctrine is merely an unenforceable political or moral obligation.  Yet the modern cases do not clearly indicatethat this trend has affected the entire spectrum of breach-of-trust claims.  Claims for money damages are the mostvulnerable to this development, but claims for equitable and declaratory reliefmay still be unaffected.