Mervyn L. Tano
International Institute for Indigenous Resource Management

That the United States stands in a fiduciary relationship to American Indian tribes is established beyond question. The specific scope and content of the trust responsibility is less clear. Although the law in this area is evolving, meaningful standards have been established by the decided cases and these standards affect the government’s administration of Indian policy. These standards may be summarized as follows:

• There is a legally enforceable trust obligation owed by the United States government to American Indian tribes. This obligation originated in the course of dealings between the government and the Indians and is reflected in the treaties, agreements, and statutes pertaining to Indian tribes.
• While the Congress has broad authority over Indian affairs, its actions on behalf of Indians are subject to Constitutional limitations (such as the Fifth Amendment), and must be tied rationally to the government’s trust obligations; however, in its exercise of other powers, Congress may act contrary to the best interests of Indian tribes.
• The trust responsibility doctrine imposes fiduciary standards on the conduct of the executive branch, including the Department of Defense. The government has fiduciary duties of care and loyalty, to make trust property productive, to enforce reasonable claims on behalf of Indian tribes, and to take affirmative action to preserve trust property.
• Executive branch officials have discretion to determine the best means to carry out their responsibilities to Indian tribes, but only Congress has the power to set policy objectives contrary to the best interest of Indian tribes.
• These standards operate to limit the discretion not only of the Secretary of the Interior, but also of other executive branch officials.

The origin of the trust relationship between the federal government and Indian tribes lies in the course of dealings between the "discovering" European nations (later the original states and the United States) and the native Americans who occupied the continent. The interactions between these peoples resulted in the conclusion by this country of treaties and agreements recognizing the quasi-sovereign status of Indian tribes.

The U.S. Supreme Court has stated that:

Implicitly, the Court recognized the course of history in which the Indian tribes concluded treaties of alliance or—after military conquest—peace and reconciliation with the United States. In virtually all these treaties, the United States promised to extend its protection to the tribes. Consequently, the trust responsibility to Indian tribes has its roots for the most part in solemn contracts and agreements with the tribes. The tribes ceded vast acreage of land and concluded conflicts on the basis of the agreement of the United States to protect them from persons who might try to take advantage of their weakened position. No comparable duty is owed to other United States citizens.

While the later executive agreements and presidential orders implementing them with tribes are shorter and less explicit than the treaties, a similar guarantee of protection can be implied from them. As the Supreme Court stated in Morton v. Mancari, 417 U.S. 535, 551 (1974), "the unique legal status of Indian tribes under federal law (is) . . . based on a history of treaties and the assumption of a guardian-ward status."

The treaties and agreements represented a kind of land transaction, contract or bargain. The ensuing special trust relationship was a significant part of the consideration of that bargain offered by the United States. By the treaties and agreements, the Indians commonly reserved part of their aboriginal land base and this reservation was guaranteed to them by the United States. By administrative practice and later by statute, the title of this land was held in trust by the United States for the benefit of the Indians.

From the beginning, the Congress was a full partner in the establishment of the federal trust responsibility to Indians. Article III of the Northwest Ordinance of 1787, which was ratified by the first Congress assembled under the new Constitution in 1789, 1 Stat. 50, 52, declared:

In 1790, Congress enacted the Non-Intercourse Act, 1 Stat. 137, 138, now codified as 25 U.S.C. §177, which itself established a fiduciary obligation on the part of the United States to protect Indian property rights.

Articulation of the concept of the federal trust responsibility as including more protection than simple federal control over Indian lands evolved judicially. It first appeared in Chief Justice Marshall’s decision in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Cherokee Nation was an original action filed by the tribe in the Supreme Court seeking to enjoin enforcement of state laws on lands guaranteed to the tribe by treaties. The Court decided that it lacked original jurisdiction because the tribe, though a "distinct political community" and thus a "state," was neither a State of the United States nor a foreign state and was thus not entitled to bring the suit initially in the Court. Chief Justice Marshall concluded that Indian tribes "may, more correctly, perhaps, be denominated domestic dependent nations. . . in a state of pupilage" and that "their relation to the United States resembles that of a ward to his guardian." Chief Justice Marshall’s subsequent decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), reaffirmed the status of Indian tribes as self-governing entities without, however, elaborating on the nature or meaning of the guardian-ward relationship.

Later in the nineteenth century, the Court used the guardianship concept as a basis for congressional power, separate and distinct from the commerce clause. In United States v. Kagama, 118 U.S. 375 (1886), a case concerning the constitutionality of the Major Crimes Act, the Court concluded that the statute was outside the commerce power of the Congress, but upheld the validity of the statute by reference to the government’s fiduciary responsibility. The Court state that "[t]hese Indian tribes are the wards of the Nation. They are communities dependent upon the United States. . . . From their very weakness and helplessness . . . there arises the duty of protection, and with it the power."

A number of cases in the decades on either side of 1900 make express reference to such a power based on the federal guardianship, i.e., LaMotte v. United States, 254 U.S. 570, 575 (1921) (the power of Congress to modify statutory restrictions on Indian land is "an incident of guardianship"); Cherokee Nation v. Hitchcock, 187 U.S. 294, 308 (1902) (the power existing in Congress to administer upon and guard the tribal property"). The Supreme Court has continued to sustain the constitutionality of Indian statutes as derived from an implicit power to implement the "unique obligation" and "special relationship" of the United States with tribal Indians. See Morton v. Mancari, 417 U.S. 345, 552, 555 (1973).

In Indian, as in other matters, federal executive officials are limited by the authority conferred upon them by statute. In addition, the federal responsibility imposes fiduciary standards on the conduct of the executive—unless Congress has expressly authorized a deviation from those standards. Since the trust obligation is binding on the United States, fiduciary standards of conduct pertain to all executive departments that may deal with Indians, not just those such as the Departments of Interior and Justice which have special statutory responsibilities for Indian affairs. This principle is implicit in United States v. Winnebago Tribe, 542 F.2d 1002 (8^th Cir. 1976), where the court employed the canon of construction that ambiguous federal statutes should be read to favor Indians to thwart the efforts of the Army Corps of Engineers to take tribal land.

A number of court decisions hold that the federal trust responsibility constitutes a limitation upon executive authority and discretion to administer Indian property and affairs. A leading case is United States v. Creek Nation, 295 U.S. 103 (1935), where the Supreme Court affirmed a portion of a decision by the Court of Claims awarding the tribe money damages against the United States for lands which had been excluded from their reservation and sold to non-Indians pursuant to an incorrect federal survey of reservation boundaries. The Court based its decision on the federal trust doctrine, stating:

Creek Nation stands for the proposition that—unless Congress has expressly directed otherwise—the federal executive is held to a strict standard of compliance with fiduciary duties. For example, the executive must exercise due care in its administration of Indian property; it cannot, as a result of a negligent survey, "give the tribal lands to others, or . . appropriate them to its own purposes." Other decision of the Supreme Court reviewing the lawfulness of administrative conduct managing Indian property and Indian affairs have held officials of the United States to "obligations of the highest responsibility and trust" and "the most exacting fiduciary standards," and to be bound "by every moral and equitable consideration to discharge its trust with good faith and fairness." Seminole Nation v. United States, 316 U.S. 286, 296-297, (1942); United States v. Payne, 264 U.S. 446, 448 (1924).

Creek Nation and the other cases cited above were for money damages under special jurisdictional statutes in the Court of Claims. Other decisions have granted declaratory and injunctive relief against executive actions in violation of ordinary fiduciary standards. An important example is Land v. Pueblo of Santa Rosa, 249 U.S. 110 (1919), where the Supreme Court enjoined the Secretary of the Interior from disposing of tribal lands under the general public land laws. That action, the Court observed, "would not be an exercise of the guardianship, but an act of confiscation." 249 U.S. at 113.

The federal courts have held that the trust relationship and the obligations that emanate therefrom place further limitations on administrative discretion to balance competing local and national interests to the detriment of tribal interests. In Pyramid Lake Paiute Tribe of Indians v. Morton, for example, the Court found that the Secretary of Interior violated his trust duty to the tribe by trying to achieve an "accommodation" of competing water rights claims between the tribe and the Bureau of Reclamation, which was filing on behalf of an irrigation project. The Court stated that the Secretary "was charged with moral obligations of the highest responsibility and trust." His conduct was therefore to be judged by "the most exacting fiduciary standards." The Secretary was further obligated to assert his statutory and contractual authority to the "fullest extent possible to accomplish this result." Similarly, in Northern Cheyenne Tribe v. Hodel, the District Court emphasized that the trust obligation is particularly acute when competing interests threaten Indian rights. In that case the court reviewed a Cheyenne claim challenging the federal government’s decision to lease vast tracts of coal on public lands adjacent to the tribe’s reservation. In an argument that closely parallels those assumptions implicit in a national hazardous waste site ranking scheme, the Secretary argued that his trust duty to the tribe was overshadowed by the "national interest" in developing coal. The court rejected the Secretary’s argument, stating:

If the decisions in Creek Nation, Pueblo of Santa Rosa, Pyramid Lake Paiute and Northern Cheyenne are sound, it follows that Department of Defense officials are obliged to adhere to fiduciary principles. These cases, in other words, lead to the conclusion that the government is in fact, a trustee for the Indians and executive branch officials must:

• Act in accordance with trust principles in their relationships with Indian tribes;
• Affirmatively identify and fulfill the obligations established by the trust relationship; and,
• Choose the alternative that furthers the best interest of the tribe when confronted with a decision that involves competing interests.

The trust obligation of the United States is derived not only from specific statutes, treaties or agreements. This view is reinforced by reference to the origins of the trust responsibility doctrine. Originally, Great Britain claimed for itself sovereignty over all Indian lands in the English colonies. In 1763, the King issued a Royal Proclamation, the precursor of the federal Non-Intercourse Act that decreed that Indian lands were owned by the Crown and that no person or government could acquire such lands without the consent of the Crown. This policy reflected the practical need of the Crown to assert its control over the land and wealth of the colonies and to preserve peace among the colonists and the Indians. Notably, the 1763 Proclamation applied to all Indians without regard to the presence or absence of specific treaties or agreements.

When the United States acquired sovereignty from Great Britain, it succeeded to all the incidents of the prior sovereign’s powers. The United States not only did not renounce the peculiar power and duty assumed by Great Britain over Indians, but endorsed it by specific reference in Article I of the Constitution.

In Delaware Tribal Council v. Weeks, 430 U.S. 73 (1977), the Court held that the trust responsibility is subject to due process limitations. The case stands for the proposition that the Congress is not free to legislate with respect to Indians in any manner it chooses; rather, Congressional action with respect to Indians is subject to judicial review and will be sustained only so long as it can be "tied rationally to the fulfillment of Congress’ unique obligation toward the Indians."

Other opinions shed further light on what is meant by the "unique obligation toward the Indian." In Morton v. Ruiz, 415 U.S. 73 (1977), the Court, in holding that the Bureau of Indian Affairs erred in excluding a certain category of Indians from the benefits of its welfare program spoke of the "overriding duty of our Federal Government to deal fairly with Indians." 415 U.S. at 236. This statement appears as part of the procedural rights of Indians, and in this connection, the Court cited Seminole Nation v. United State, 316 U.S. 286, 296 (1942), which says governmental action must be judged by the "strictest fiduciary standards."

The "unique obligation" mentioned in Weeks and the "overriding duty" of fairness discussed in Ruiz exist apart from any specific statute, treaty or agreement, and they impose substantive constraints on the Congress and the executive branch. These decisions lead to the conclusion that the government’s trust responsibility to Indian tribes has an independent legal basis and is not limited to the specific language of statutes, treaties and agreements. At the same time, the content of the trust obligation—apart from specific statutes, treaties and agreements—is limited to dealing fairly with Indian tribes. The standard of fairness is necessarily vague and allows considerable room for discretion, but these independently based duties do not stand alone. They must be read together with a host of statutory and treaty provisions designed to protect tribal interests.

The more general notions of the "unique obligations" and "overriding duty" of fairness form a backdrop for the construction and interpretation of the statutes, treaties and agreements respecting Indian tribes. This means that provisions for the benefit of Indians must be read to give full effect to their protective purposes and also they must be given a broad construction consistent with the trust relationship between the government and the Indians. General notions of fiduciary duties drawn from private trust law form appropriate guidelines for the conduct of Department of Defense officials in their discharge of responsibilities toward Indians and are properly utilized to fill any gaps in the statutory framework.

Although most statutes governing non-tribal agency action are not likely to contain express fiduciary language, Congress, nevertheless, made its intent to impose fiduciary obligations clear in at least one prominent environmental statute. CERCLA provides for recovery of natural resource damages associated with the release of hazardous substances on both public and Indian lands. CERCLA also provides an exemption from liability for releases that are authorized under federal permits or licenses; however, in the case of damage to Indian lands, CERCLA provides an exemption only if "the issuance of that permit or license is not inconsistent with the fiduciary duty of the United States with respect to such Indian tribe." This language reflects an explicit congressional recognition of a fiduciary duty that implicates the full range of federal permit decisions affecting Indian lands.

Additionally, the U.S. Environmental Protection Agency has for several years expressly recognized a fiduciary duty toward Indian tribes. The EPA Statement on Indian Policy declares:

Further, in Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8^th Cir. 1989), the Eighth Circuit found a trust obligation for the agency to clean up hazardous waste dumps arising from the Resource Conservation and Recovery Act ("RCRA"), even though RCRA contained no specific trust language. The court reasoned that Congress intended the specific obligations to apply to the agency through RCRA. In discussing the fiduciary role of the agencies the court stated, "BIA and HIS have not merely violated RCRA, but, in so doing, they have violated their fiduciary obligation toward the plaintiffs and the tribe.

More recently, in Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of the Navy, 898 F.2d 1410 (9^th Cir. 1990), the Ninth Circuit held that the Secretary of Navy owed a fiduciary duty to the tribe to "preserve and protect" the Pyramid Lake fishery when leasing appurtenant water rights that could detract from water levels in Pyramid Lake.

In summary, federal law, policy and court decisions demonstrate that a trust relationship exists between the federal government and Indian tribes; that the obligations thereunder attach to all executive agencies of the federal government; and that the performance of these obligations should be judged by the most exacting fiduciary standards. The cases sited above provide some guidance as to what these principles might mean in the ranking of Department of Defense environmental restoration activities, but the exact dimensions of the Department of Defense’s cleanup responsibilities in Indian country are not clear.

To improve its priority-setting processes, the Department of Defense introduced evaluations of sites’ relative risks in 1994 as a key element in decisions about which of its contaminated sites should be cleaned up first. DOD’s Relative Risk Site Evaluation Framework allows the agency to place a potentially contaminated site within the Defense Environmental Restoration Program into one of the three relative risk categories—high, medium, or low—on the basis of relative risks that the site poses to human health and the environment. The relative risk framework evaluates the nature and concentration of the site’s contaminants, the possible pathways for the contaminants to move from the site, and the opportunities for human beings and other receptors to come into contact with the contaminants. For example, at a highly contaminated site that poses a hazard to groundwater, has an identifiable migration pathway, and is located near a human receptor that uses the groundwater as a source of drinking water, the risk ranking would be high. Conversely, at a site with minimal contamination, no migration pathways, and no receptors, the risk ranking would be low.

In determining which sites to fund first, DOD uses a "risk plus" approach that assesses relative risk information along with other factors, such as the status of legally enforceable cleanup agreements and the availability of cleanup technologies. The Department plans to use that same approach to prioritize sites in Indian country and has sought to identify other factors such as treaty rights and tribal- or Indian-specific statutes such as the American Indian Religious Freedom Act and the Native American Graves Protection and Repatriation Act that should be considered as "plus" factors. It is evident that starting with DOD’s Relative Risk Site Evaluation Framework in Indian country is contrary to federal Indian law and policy on the Federal-Tribal trust. Northern Cheyenne Tribe v. Hodel is instructive in this regard. In that case the court stated that:

How then, should the Department of Defense prioritize environmental restoration activities in Indian country. Again, Northern Cheyenne Tribe v. Hodel is instructive.

Northern Cheyenne stands for the proposition that the trust relationship between the Department of Defense and Indian tribes is the proper point of departure for prioritizing environmental restoration activities in Indian country. Specifically, trust obligation as set out in Northern Cheyenne requires the Department of Defense to:

• identify the special needs of the tribe to oversee, regulate and otherwise participate in environmental restoration activities. Environmental restoration activities in Indian country may require tribes to establish or strengthen systems to protect their treaty interests; to regulate the transport of hazardous materials through their lands; to ensure access to and protection of sacred sites; and to protect the people, lands and resources of the tribes from the effects of DOD environmental restoration activities;
• identify and assess the cultural, environmental, social, economic, political and other impacts such environmental restoration activities may have on a potentially affected Indian tribe;
• identify measures to mitigate deleterious impacts. This may mean education, training, technical assistance and general capacity and infrastructure building as well as environmental restoration activities; and
• implement such measures to mitigate deleterious impacts.

A fair reading of the statutes, decisions and policies that define DOD’s trust obligations indicate that these obligations do not require it to discard its Relative Risk Site Evaluation Framework to rank contaminated sites in Indian country. Nor do these obligations mean that DOD must grant contaminated sites in Indian country a "super priority" for immediate cleanup. The statutes, decisions and policies suggest a three step process for prioritizing contaminated sites in Indian country.

• First, they suggest that the Department should begin any prioritization of contaminated sites in Indian country by first identifying and addressing its trust obligations.
• After assessing its trust obligations the Department can then apply its Relative Risk Site Evaluation Framework
• Finally, DOD, in consultation with the affected tribe, should identify other factors, e.g., treaty provisions, statutory requirements, availability of cleanup technology, consent decrees, etc. which should also be considered.

In short, what statutes, decisions and policies suggest is a "trust plus risk plus" approach to prioritization in Indian country. Note, however, that the first leg has two parts—the identification of the Department’s trust obligation and the development and implementation of measures to address these obligations. This means that as part of its overall environmental restoration program, DOD should have an ongoing program to assess the cultural, environmental, social, economic, political and other impacts the past contamination and future environmental restoration activities may have on a potentially affected Indian tribe as well as an ongoing program of education, training, technical assistance and general capacity and infrastructure building for Indian tribes.

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