In this era of tribal self-annihilation and self-termination, it is no longer easy to answer fundamental questions of tribal existence, like: Who's the tribe (qua tribal council)? Who's a tribal member?
Two centuries of federal laws designed to dispossess Indians of land and terminate tribes (i.e., Treaties, Dawes Act, Burke Act, IRA, P.L. 280) have converged to greatly confuse such questions. In particular, the federally prescribed dissolution of tribal cash assets on a "pro rata" or "per capita" basis over the last 110 years (Lacey Act of 1906, IGRA) has been especially destructive to tribal governments and communities.
Federal officials remove their hands---as if to say "not it"---when such questions are posed to them by persecuted tribal members. They cite FN. 32 to Santa Clara v. Martinez, 436 U.S.C. 49, 70 (1978), or tribal self-determination as justification. They refuse to acknowledge that as a result of federal laws that span the last two centuries, the indigenous capacity of many tribes to be self-determinative has been destroyed---by and through the United States.
The result: an increasing number of tribes---as many as 15% of all federally recognized tribes---are destroying themselves and taking the lives of their own people.
In particular, the Trustee seemingly fails to appreciate that its trust responsibility to protect and ensure the well-being of Indian people, is a moral obligation---per federal law.
And post-Cobell/Salazar and amidst trust reform, federal-tribal lawyers and politicos are so focused on federal money-mandating statutes vis-a-vis the federal Indian trust responsibility, that they, too, generally overlook the morality component.
Dating back to the Marshall Trilogy, the federal trust relationship has been deemed one of "moral responsibility." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
The Supreme Court explained it most profoundly in Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942):
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.
The High Court has even invoked America's honor in reference to the Indian trust responsibility: “Out of its peculiar relation to these dependent peoples sprang obligations to the fulfillment of which the national honor has been committed.” Heckman v. United States, 224 U.S. 443, 437 (1912).
And from the United States' national honor and moral trust responsibility, arises "the duty of protection," towards both tribes and tribal members. Id. Indeed:
In exercising this broad authority, past Secretaries have acknowledged that the Department's relationship with Indian tribes and individual Indian beneficiaries is guided by the trust responsibility and have expressed a paramount commitment to protect their unique rights and ensure their well-being, while respecting tribal sovereignty.”
Secretary of the Interior, Order No. 3335, Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries (Aug. 20, 2014).
Morality, humanity, honor, responsibility, trust, commitment, protection, well-being. These are not "just words." They are part and parcel of federal Indian trust law.
As such, the Trustee's current "hands off" policy, which generally fails to ensure the well-being of Indians in internecine conflicts, is wrong---in fact, it's illegal and immoral.
It is "elementary trust law, after all . . . that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 475 (2003).
The same holds true for the trust corpus that is the tribe/membership: the United States shall not allow it to fall into ruin on its watch. The Trustee must resume a measured, "hands on" approach, before that corpus is destroyed.
Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with offices in Seattle and Yakima, Washington and Bend, Oregon. Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation. This blog is based on a presentation he gave at the Federal Bar Association Indian Law Section's annual conference earlier this month in Scottsdale.
