Throughout the history of this initiative, there has been a concern that Self-Governance may somehow diminish or even terminate the Trust Responsibility that the United States has to Indian people. This concern comes from the Interior Department attempt in 1987 to tie the provision of funds to the Tribes to a waiver of its trust obligations. Termination or reduction of the trust responsibilities of the United States to Indian people is neither acceptable to participating Tribes nor is it part of Self-Governance initiatives.

To ensure the trust responsibility of the United States to Tribes and their members is protected, specific language was included in the P.L. 100-472 the original Self-Governance Demonstration Act, and in P.L. 103-413, the Tribal Self-Governance Act of 1994.

The Trust Language

"The Secretary shall negotiate and enter into, an annual written funding agreement with a governing body of each participating tribal government in a manner consistent with the Federal Government's laws and trust relationship to and responsibility for the Indian people." [Section 403(a) Authorization.]

(9) prohibit the Secretary from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, and other laws. [Title IV--Tribal Self-Governance, Section 403(b)(9)]

 

... funds for trust services to individual Indians are available under an agreement entered into under this section only to the extent that the same services that would have been provided by the Secretary are provided to individual Indians by the Tribe; [Section 403(g)(4)]

 

Nothing in this Act shall be construed to diminish the Federal trust responsibility to Indian tribes, individual Indians, or Indians with trust allotments. [Section 406(b)]

What is the Trust Relationship

Although many Indian people view the Trust relationship as the obligation of the United States to protect, to provide for, and to enhance all things Indian -- for example, property, health, education, social services, jurisdiction, and tribal government -- the United States often argues a more limited view of the Trust Responsibility; i.e., to protect Indian property rights.

The "trust relationship" is an evolving concept. Today, at minimum the trust is the obligation of the United States to manage and preserve Indian property. Property is a fairly broad concept including land, money and other resources, such as, fish, timber or similar holdings. Technically, the United States holds legal title to this property, and Indians hold what is known as beneficial title. As such, income from Trust assets is exempt from State, and local taxes.

The obligation of the United States to manage Indian property in a productive manner is similar to but not identical to that of a private trustee. Courts will often look to the underlying treaties or statutes to determine the extent of the responsibility that the United States has undertaken with respect to particular Tribes or resources. In addition to the underlying treaties and statutes, an examination of the actual scope of the Federal control over the Indian property can give rise to an obligation to properly manage and protect the Indian property. With respect to Indian moneys, the United States' obligation is perhaps clearest and closest to that of a private trustee - prudent fiscal management.

Protecting the Trust - Holding the United States Responsible

Even though there have been a fair number of "successful" Court of Claims cases against the United States for its failure as a trustee, these cases have not assured that the United States has been or will be a productive or efficient manager of Tribal assets. The Courts have shielded the United States from liability to Tribes in situations where Congress has mandated conflicting public interests to tribal interests. The United States also does not have the obligation to produce the maximum financial returns on tribal assets, nor may it have any obligation to protect or enhance tribal property or assets what-so-ever where the statutory scheme does not evidence sufficient Federal control.

Some commentators have been very critical of relying on the "Trust" Relationship with the United States to protect tribal assets, at the expense of Tribal control and Self-Determination. Often this criticism comes from actual experiences where such reliance has proved to be ineffective and damaging to Tribal interests. Some commentators look to keeping the benefits of the Trust Relationship and bringing it into modern times. This process will require providing the Tribes with input as the beneficiaries of the Trust, and having the Government as Trustee give up its paternalistic attitudes and vestiges of the racist guardianship philosophy that so often characterized the Trust Relationship in the past.

The Trust in Non-Property Areas

In the non-property areas, the role of the Trust is important but less clear. Courts have used the existence of the Trust Relationship as a basis for the political status of Indians as a group for constitutional equal protection analysis purposes. Political status is a very important status, because it allows the United States to legislate for the special benefit of Indians, without violating the Constitution of the United States. Simply put, special Indian programs are not illegal discrimination.

In other instances or situations, the existence of the Trust, supports the rule of construction in Indian cases that ambiguities are to be construed in favor of Indians. Also, the existence of the Trust requires the Federal government to utilize enhanced procedural fairness in special Indian programs. In a few situations, the existence of specific statutory Trust language, has been the basis for courts ordering provision of services, such as health services to Indians. Generally, however, the existence of the Trust Relationship, without specific Congressional direction, is insufficient to mandate any particular program, to obtain adequate funding, or to assess damages against the United States for its failure to provide social or political services to Tribes or Indian people.

The Trust in Self-Governance Compacts

Given these background and legal considerations, key issues for the Tribes in drafting the Self-Governance Compacts were:

1. to maintain the positive aspects of the Trust;

2. to assure sufficient United States involvement and technical "control" in the management of tribal property and assets to meet existing Court standards for ascertaining financial liability; and

3. to provide the maximum control and involvement for the tribes over their own property and assets.

The method chosen by the Tribes for the Self-Governance Initiative was to delineate the specific Trust Responsibility in the Compact. The United States specifically pledges its Trust Responsibility to the individual Tribe to protect and conserve the trust resources of such Tribe and pledges its utmost good faith in upholding said trust responsibility. The Tribe also pledges its utmost good faith in upholding its responsibilities to provide services under the Annual Agreement.

The Tribe has the full authority, subject to any statutory requirements, and any specific regulations (although such regulations may be waived) to manage tribal property and assets, if it so chooses. The compacts provide for annual Trust Evaluations. The Trust Evaluation allows the United States to exercise the necessary supervision or oversight relative to its obligations to the Tribe and to individual Indians. An escape clause is provided whereby the United States may assume direct management of the physical Trust assets, upon proper notice to the Tribe, if the trust assets are in imminent jeopardy. Imminent jeopardy is defined as significant loss or devaluation of the physical Trust asset, caused by the Tribe's action or inaction. This process has now been codified by section 403 (d) of the permanent Self-Governance Act of 1994.