d’Errico: Can federal Indian ‘trust’ be trusted?Part two in a series
By
Peter d’Errico
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| The claim of a “trust doctrine” in relation to Native nations is the most widely cited concept in federal Indian law. It is also widely misunderstood. |
The case went through extended appeals. The Court of Appeals for the Federal Circuit twice ruled for the Navajo Nation, reversing the Claims Court for failing to find specific trust duties in the coal laws. The Supreme Court reversed the Appeals Court both times and agreed with the Claims Court. According to Justice Scalia in the latest decision, the case is “at an end.”
The question arises: What does the federal Indian “trust doctrine” mean in comparison to ordinary trust law? The Court of Federal Claims suggested this comparison in its first decision in the case when it said, “we find it useful first to measure the government’s actions against [the] familiar standard” of the common law of trusts.
A trust involves three elements: property that is subject to the trust, a trustee who administers the property, and a beneficiary in whose interests the trustee acts. A trust creates a relationship between a fiduciary (one in whom faith or trust is placed) who controls a property, and another who is the ultimate owner of that property. This relationship may be defined in a specific document, such as a will, or by certain general principles, such as when an adult has care of a child (which is known as the guardian-ward relation).
Ordinary trust law is rooted in centuries of common law decisions about fiduciary responsibility in a broad range of situations. The law is almost poetic in describing the high standards of fiduciary responsibility in a situation of trust. It has been said, “The duties of a trustee are the highest known to the law.”
Benjamin Cardozo, the famous chief justice of the Court of Appeals of New York, wrote that a “trustee is held to something stricter than the morals of the market place.” He further said that “not honesty alone, but. … an honor. … most sensitive. … is the standard of behavior.” On that basis, Cardozo pointed out, “there has developed a tradition that is unbending and inveterate.” A high level of conduct for fiduciaries “will not consciously be lowered by any judgment of this court.” [Meinhard v. Salmon (1928)].
We can now understand why the Court of Federal Claims said of the Navajo case, “Were this a court of equitable jurisdiction considering a private trust, plaintiffs might easily qualify for remedies typically afforded wronged beneficiaries.” The fact that the court denied relief for the Navajo Nation says that the federal Indian “trust doctrine” is not a true trust.
| The decision in the Navajo coal case demonstrates how far federal Indian “trust doctrine” is from ordinary trust law. |
Notice there is no specific trust document in federal Indian “trust doctrine.” This means that for the trust to exist it must be premised on general legal principles. The principle on which Marshall based his analogy was “Christian title and supremacy,” a unique aspect of colonialism and not a general principle of trust law.
The federal Indian “trust doctrine” differs from ordinary trust law in another profound way: An ordinary trustee is subject to judicial supervision and the court and trustee are independent from each other. In federal Indian law, the courts have created both the “trust” and the “trustee.”
The decision in the Navajo coal case demonstrates how far federal Indian “trust doctrine” is from ordinary trust law. The Claims Court acknowledged that in enacting the coal leasing law, the United States “assumed the responsibility to manage minerals such as coal in a fiduciary capacity.” However, the court said, “The general trust relationship in itself does not impose such duties as are erected in a complete trust with fully accountable fiduciary obligations.” The court concluded, under “the general, or bare, trust relationship [in relation to Indians], fiduciary obligations applicable to private trustees are not imposed on the United States.”
| The U.S. has created powers to control Indian lands by means of a “trust doctrine” that cannot be supervised by ordinary trust principles. |
The “bare trust” is a new twist on “the emperor has no clothes.” The U.S. creates a “trust” for Indian lands, making itself trustee, subject to its own supervision, based on a religious supremacy notion. It then takes steps to control the property of the beneficiary, including enacting a law for coal leasing on Indian lands. When the supposed beneficiary, the Navajo Nation, challenges the acts of the trustee, the trustee says there is only a general (and unenforceable) trust – a “bare trust” – and no specific trust obligation regarding the coal leasing.
To rub salt into the wound, the “trustee” says the lack of fiduciary responsibility benefits the beneficiary (the Navajo Nation), by forcing it to fend for itself, in the name of “self-determination.” “Implicated in every instance is the delicate balance struck between exercising fiduciary responsibilities and respecting tribal sovereignty and self-determination.”
United States has created powers to control Indian lands by means of a “trust doctrine” that cannot be supervised by ordinary trust principles. The Navajo case stands for the proposition that the U.S. trustee only has trust responsibilities if and when it says it has trust responsibilities. That is no trust. It is a rip-off and a fraud.
Peter d’Errico is a consulting attorney on Indigenous issues. He was a staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services from 1968 to1970 and taught legal studies at University of Massachusetts-Amherst for three decades.
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Thursday, May 7 at 11:05 AM Enrolled Tribal Member wrote ...
If the BIA does not want to lease tribal lands in a manner favorable to the beneficiaries: Tribal Members/Tribes, then they should return that responsibilities back to the reservations so that the Tribal Communities can make thier own contracts that are favorable to thier membership, this would assist with "Self Determination and the Leasee would have a one on one relationship without the BIA short chnaging the tribe being there is NO TRUST that they are accountable for!!
21071499Monday, May 4 at 11:39 AM Wanbli wrote ...
It is called Imperialism! And every person in this country are complicit to its exploration mechanism that destroys the poor aboriginal nationhoods around this planet. Unless, we confess this sin and transgression against our Common Creator and expose it and destroy it within our mist we are have condemned our children, human race and this planet, earth. Its capitalistic nature is greed, power and domination. Every BIA and IRA aboriginal nationhoods stand guilty before the Creator and his Son!
20892883Sunday, May 3 at 11:50 PM White Clay wrote ...
I have researched the history of this case and it seems self evident that the US Government breached its fiduciary duties regardless of which standard of "Trust" this case is measured against. To the Supreme Court justices that ruled against Native interests on this case- You have lost substantial credibility. Shame on you.
20877217Monday, Apr 27 at 7:49 AM Chooge wrote ...
One fiduciary organization is the Office of Special Trustee, Ross Swimmer head Indian in Charge. The office is full of waste, fraud, and abuse. The Lords brothers going on a 2-year tour of golf courses in western USA. All at the expense of the federal govt. under the guise of "helping the Indian." Donna Erwin right there with them. Have they been fired? NO, Ross Swimmer the Republican's Indian gave them a slap on the hand, with BONUSES.
20266431Friday, Apr 24 at 10:39 AM tseligaii wrote ...
aside from the details of a very good work, when its all boiled down to gravy, what we have is dept of interior (doi) and a private company defrauding navajo. by the way, i have another name for doi: defaudment of indians. maybe this will serve as a motivator for unity!
20168296Thursday, Apr 23 at 10:54 PM Shoshone Lawyer wrote ...
It walks like a duck, quaks like a duck, but to Scalia it's a pile of Justice dung. Come on Obama, make this right.
20151041Thursday, Apr 23 at 10:00 AM Wanbli wrote ...
Peter very good, now what are you willing to do that justice will become realized for all of our First Aboriginal Nationhoods. Are you truly willing with the oppressed to pay the cost of Justice, Truth, Peace and Freedom? Being a IRA and BIA Attorney does nothing, it only destorys our abilities to create alternitive solutions and create a future that is more in tune to a compassionate Creator and a Creator more in tune to our childrens right to be free. Are you will to stand with me, The Confed?
20107811Wednesday, Apr 22 at 10:09 AM Thomas wrote ...
"Rip off and Fraud", huh this has been going on since the arrival so no big surpise here.
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