Trust Responsibility of Federal Government for Indian Tribes: Recent Cases
CRS Report for Congress
Trust Responsibility of Federal Government
for Indian Tribes: Recent Cases
M. Maureen Murphy
American Law Division
The courts and Congress have long acknowledged a trust relationship between the
federal government and the Indian tribes. Two Supreme Court cases, decided on March
the Court rejected the Navajo Nation’s claim for damages for the government’s failure
to maximize return from coal leases on tribal land. In the other, the Court ruled that a
fiduciary obligation from which damages could flow was created by a 1960 statute
declaring that the United States was to hold a former military post, Fort Apache, in trust
for the White Mountain Apache Tribe subject to the right to use the land for school
purposes. These cases supply a backdrop against which other Indian trust cases may be
viewed. Prominent among the pending cases is Cobell v. Norton, Civil No. 96-1285
(D.D.C.), in which a federal district court is conducting a trial of a claim brought in the
name of individual Indians for an accounting of funds held in trust for their benefit. (For
further information, see CRS Report RS21738, The Indian Trust Fund Litigation: An
Overview of Cobell v. Norton, by Nathan Brooks.) That suit has resulted in contempt
orders against two Secretaries of the Interior and one Secretary of the Treasury and the
removal from the Department of the Interior Internet site of all resources connected to
Background. Nations colonizing the New World declared their sovereignty over
the land and invoked a jurisprudence that required them to assume certain duties toward
the native peoples that has been expressed in terms of the metaphor of guardian and ward.
This metaphor was invoked to express the nature of the authority and responsibilities of
the federal government with respect to the Indian tribes as early as 1831 in Supreme Court
cases involving the Cherokee Nation,1 in which Court ruled that Indian tribal lands were
jurisdictionally not subject to state law, but to the protection of federal law. In reaching
the decision, the Court held that the Cherokee Nation was not a foreign nation (and, thus,
able to invoke the original jurisdiction of the Supreme Court), but a “domestic dependent
1 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.)
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nation,”2 analogous to a ward of the United States. The Cherokees, thus, could “look to
our government for protection; rely upon its kindness and its power; appeal to it for relief
to their wants; and address the president as their great father.”3 Eventually, in the late
nineteenth century, the trust relationship was viewed as a source of federal power.4 The
Court virtually refused to find any federal legislation affecting Indian property to be
unconstitutional and saw the power to abrogate Indian treaty rights as political and not
subject to judicial control.5
Courts no longer invoke the plenary authority of Congress in Indian affairs and the
trust relationship as a source of plenary federal power but have delineated limits on
Congressional power to deal with Indian property. In United States v. Sioux Nation,6 for
example, the Court focused on how Congress must act as a trustee of Indian property–it
may change it from one form to another, e.g., from land to money, but it may not take it
for a public purpose without meeting the Fifth Amendment’s just compensation
requirement. Similarly, the Supreme Court has held unconstitutional as confiscatory,
federal legislation that permits escheat (transferring title) to tribes of fractionated shares
of Indian allotments that have passed through multiple intestate successions resulting in
maximum fractionalization of interests.7
Although the Court seems to be moving away from viewing the trust relationship as
a source of federal plenary power, it has not adopted the view that the trust relationship
completely incorporates the common law of trusts. In 1983, in Nevada v. United States,8
the Supreme Court indicated that the trust obligations assumed by federal government
agencies with respect to Indians or Indian property are unlike the obligations of a private
fiduciary or trustee with respect to the issue of conflict of interest. The case involved a
situation in which the United States represented both an Indian tribe and a reclamation
project in water rights litigation. The Court noted that when Congress calls upon an
agency to represent more than one beneficiary or imposes conflicting obligations on it,
strict fiduciary duties are not required, saying “[t]he Government does not ‘compromise’
its obligations to one interest that Congress obliges it to represent by the mere fact that it
simultaneously performs another task for another interest that Congress has obligated it
by statute to do.”9
Under what is known as the Indian Tucker Act, 28 U.S.C. § 1505, the United States
waives its sovereign immunity to permit Indian tribes to sue for damages in the Court of
Federal Claims for claims “ arising [after August 13, 1946] under the Constitution, laws
2 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
3 Id., at 17.
4 See Reid Peyton Chambers, “Judicial Enforcement of the Federal Trust Responsibility to
Indians,” 27 Stanford Law Review 1213, 1223 (1975).
5 See e.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
6 See United States v. Sioux Nation, 448 U.S. 371 (1980).
7 Hodel v. Irving, 481 U.S. 704 (1987); Babbitt v. Youpee, 519 U.S. 234 (1997).
8 463 U.S. 110 (1983).
9 400 U.S. 110, 128.
or treaties of the United States, or Executive orders of the President, or ... which otherwise
would be cognizable in the Court of Federal Claims if the claimant were not an Indian
tribe, band, or group” For a tribe to recover damages against the United States under this
statute, it is not enough to cite the federal trust relationship. To impose strict fiduciary
duties10 upon a federal agency a statute must satisfy tests set forth by the Supreme Court
in two cases involving timber management on reservation trust lands.
In United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I), the Court held that
assessment of money damages against the United States for breach of trust in connection
with Indian property must be based on a statute that contemplates such a result (i.e., it
must be “money-mandating”). The Supreme Court found nothing in the language,
legislative history, or circumstances surrounding the legislation cited by the lower court,11
the General Allotment Act, 25 U.S.C. §§ 332 et seq., to create an express trust respecting
timber management. On remand,12 the lower court found that the Indian timber statutes13
established a trust relation allowing recovery for breach of trust because they created a
corpus of Indian property, to be controlled by a trustee, the federal government, for the
benefit of a beneficiary, Indian owners, and that Congress intended the benefit be
financial. The Supreme Court agreed. In United States v. Mitchell, 463 U.S. 206, 219
(1983) (Mitchell II)) the Court examined the statutes cited by the lower court to see
“whether they can fairly be interpreted as mandating compensation for damages sustained
as a result of a breach of the duties they impose.” It traced the history and scope of the
timber management legislation and concluded that it, unlike the general Allotment Act,
gives the federal government “full responsibility to manage Indian resources and land for
the benefit of the Indians. ...[and] thereby establish a fiduciary relationship....”14
White Mountain Apache and Navajo Nation. On March 4, 2003, the Supreme
Court decided two cases involving assertions by Indian tribes that the United States had
breached its trust obligations. The decisions articulated the same standard as announced
in Mitchell II, but found a trust obligation in only one of the cases, United States v. White
Mountain Apache 537 U.S. 465 (2003). In it, the Court upheld an appellate ruling15 that
a tribe could bring an action against the United States for compensation for failure to
repair buildings at Fort Apache. The case involved a 1960 statute that declared the Fort
Apache military post to be “held by the United States in trust for the White Mountain
Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the
land and improvements for administrative or school purposes for as long as they are
10 Technically, this means that, provided the statutes imposing the trust meet certain standards
indicating that they are intended to mandate monetary compensation for their breach, a tribe may
sue the United States under the Indian Tucker Act.
11 Mitchell v. United States, 391 (F2d 1300) (Ct. Cl. 1979).
12 Mitchell v. United States, 664 F2d. 265 (Ct. Cl. 1981).
13 25 U.S.C. §§ 406 - 407 and 466; the court also found trust responsibilities created by statutes
dealing with road building and rights of way (25 U.S.C. §§ 318a and 323 - 325; and Indian trust
funds and administrative fees (25 U.S.C. §§ 162a and 413).
14 463 U.S. 206, 225.
15 White Mountain Apache v. United States, 249 F.3d 1364 (Fed. Cir.2001).
needed for that purpose.”16 The appeals court had noted that the Fort Apache legislation
conveyed complete control and did not require, as in Mitchell II, that the property be
administered for the benefit of the Indians. Nonetheless, it found that when the
government chooses to use trust property exclusively for its own purposes, it becomes
subject to the duties of a common law fiduciary and, therefore, must “act reasonably to
preserve the trust property,”17or to be liable to the tribe in money damages. This ruling
was contrary to that of the trial court, which had held that mere control was insufficient
for a trust obligation to attach.18
Writing for the Supreme Court, in an opinion in which Justices Stevens, O’Connor,
Ginsburg, and Breyer concurred, Justice Souter rejected the argument that the United
States had raised as to the high standard to be applied to any statute interpreted as
imposing a fiduciary obligation on the United States, breach of which is to give rise to
compensable damages.19 The Court found that the Indian Tucker Act20 met the standard
for a clear waiver of sovereign immunity and that a statute creating a substantive right
within that waiver requires merely the standard identified in Mitchell II: ”that...[it]...be
reasonably amenable to the reading that it mandates a right of recovery in damages.”21
The Court recognized, in the language of Mitchell II, that this is not to be “‘lightly
inferred,’” but said that “a fair inference will do.”22
The Court found that the language of the 1960 Act in White Mountain Apache
created more than a bare trust even though it did not impose specific management and
control duties similar to those of the timber management statutes at issue in Mitchell II.
It held the statutory authorization for the United States to use the trust property carried
with it a duty to maintain the property and not to permit it to deteriorate, a duty imposed
upon a common law trustee. The Court remanded the case to the Court of Federal Claims
for a trial on the issue of damages. Assessment of damages may involve knotty issues,
such as whether damages will be assessed only for those improvements on the trust
property used by the United States or for all the deterioration of this historic site and what
interplay there will be with the trust law principle that the trustee use trust assets for
expenses incurred in administering and maintaining the trust.
In United States v. Navajo Nation 537 U.S.488 (2003), in an opinion written by
Justice Ginsburg, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy,
Thomas, and Breyer, the Court reversed the U.S. Court of Appeals for the Federal Circuit.
16 Pub. L. 86-392, 74 Stat. 8 (1960).
17 White Mountain Apache v. United States, 249 F. 3d 1364, 1378.
18 White Mountain Apache Tribe v. United States, 46 Fed. Cl. 20 (1999).
19 Brief for Petitioner, at 14 ff., United States v. White Mountain Apache Tribe (No. 01-1067).
20 28 U.S.C. § 1505, which authorizes the Court of Claims to hear claims against the United
States by Indian tribes based on an Act of Congress.
21 United States v. White Mountain Apache, slip op., at 6.
22 Id., 6, quoting United States v. Mitchell, 463 U.S. 206, 218 (1963)
It ruled against the Navajo Nation (Nation), which had sought $600 million damages23 in
the context of the Department of the Interior’s role in the negotiation and approval of
reservation coal leases. The fact situation includes ex parte communication between the
Secretary of the Interior and the lessee that was not disclosed to the Nation and that
resulted in withdrawing an administrative decision that would have imposed higher
royalties than were ultimately obtained by the Navajo Nation. The issue was whether the
mineral leasing statutes24 are such that they can be fairly interpreted as mandating
monetary damages for breach of trust if actions by the Department of the Interior could
be shown, in a future trial, to have resulted in an economic disadvantage to the tribe.
At the trial court level, the Court of Federal Claims had ruled that although the
United States, “acting through former Secretary Hodel, violated the most basic common
law fiduciary duties owed the Navajo Nation....the trust relationship necessary for
...jurisdiction does not exist, and these violations do not mandate monetary relief.”25 That
court found the dual purposes of the Indian mineral leasing statutes, maximizing
economic returns for the Indian beneficiaries and fostering Indian self-determination, as
undermining the necessary intent to permit money damages. This decision was reversed
at the appellate level.26 The arguments that the United States raised in the Supreme Court
drew a contrast between the mineral leasing statutes that give the tribes the authority for
mineral leasing, subject to the approval of the Secretary of the Interior, with the timber
statutes in Mitchell II, which the Court found conveyed total control to the Secretary of
the Interior. It also raised various factual matters that indicate the possibility that the final
lease, which the Navajo Nation submitted for approval, may have been on the whole equal
to that which would have been mandated had the Secretary not intervened. Finally, the
U.S. characterized the Navajo Nation’s case as calling for the imposition of common law
trust duties, thereby, expanding potential liability beyond the Mitchell II standard and
beyond what would be inferred by a fair reading of the statutes at issue.
The Supreme Court, in Navajo Nation, found no language creating a trust in the
Indian mineral leasing statutes; nor did it find that the statutes or implementing
regulations conferred the kind of control from which fiduciary obligations were held to
flow in Mitchell II. The Secretary had only the authority to approve leases negotiated by
tribes subject to the sole standard that royalties not fall below a minimum level
established in the regulation. A dissent, which was written by Justice Souter, the author
of the opinion of the Court in White Mountain Apache, drew a different implication from
the requirement of Secretarial approval of coal leases on tribal lands. Relying on
legislative history relevant to the purpose of the Secretarial approval requirement–to
maximize tribal returns from mineral estates–and cases in the early part of the 20th
century27 the dissent viewed Secretarial approval as a protective measure. Two justices,
Justices Ginsburg and Breyer, cast the deciding votes. They joined in a concurring
23 Petition for Writ of Certiorari, at 13, United States v. Navajo Nation (No. 01-1137).
24 The Indian Mineral Leasing Act of 1938, 38 Stat. 347, 25 U.S.C. §§ 396a et seq.
25 Navajo Nation v. United States, 46 Fed. Cl. 217,219 (2000).
26 Navajo Nation v. United States, 263 F.3d 1325 (Fed. Cir. 2001).
27 Tiger v. Western Investment Co. 221 U.S. (1911); Choteau v. Burnet, 283 U.S. 691 (1931);
Sunderland v. United States, 266 U.S. 226 (1924); and Anicker v. Gunsburg, 246 U.S. 120
opinion, written by Justice Ginsburg, in White Mountain Apache, reconciling the different
outcomes on the basis of application of the Mitchell II standard. They saw the statute
in White Mountain Apache as requiring the Secretary to hold the land in trust and as
conveying full authority to use it. On the other hand, they viewed Indian mineral leasing
legislation as involving no Secretarial management or control or duties, breach of which,
Cobell28 and Other Trust Fund Cases. The Court’s decision to uphold the29
Mitchell II rationale may have an impact on other litigation. For example, Judge Royce
Lamberth of the U.S. District Court for the District of Columbia has been overseeing
Cobell v. Norton (Civil No. 96-1285), a suit seeking a declaratory judgment as to the
extent of the Interior Department’s duties with respect to trust funds held for individual
Indians and an injunction to assure performance. Related cases involving similar claims
involving trust funds held for certain tribes have also been referred to Judge Lamberth.30
At least two federal statutes are central to the Cobell case: (1) section 702 of the
Administrative Procedure Act waives sovereign immunity of federal officials for actions
“seeking relief other than money damages” involving a federal official’s action or failure
to act,31 and (2) the Indian Trust Fund Management Reform Act of 199432 specifies, inter
alia, that the Secretary of the Interior must provide: adequate systems for accounting for
trust fund receipts and balances, periodic reconciliations of trust fund accounts, adequate
controls over receipts and balances; and periodic statements to account holders. The trial
court, during the course of protracted litigation that has included contempt orders against33
two Secretaries of the Interior and one Secretary of the Treasury and the removal from
the Department of the Interior website of all resources connected to trust documentation,34
has found that these duties have been breached. The appellate court, in an opinion that
has not been appealed, generally upheld the trial court, finding that the government had
breached its trust obligations to the beneficiaries and upheld the district court’s orders
compelling the government officials “to do little more than develop plans to ensure proper35
discharge of their duties within a reasonable time.”
28 Cobell v. Norton (Civil No. 96-1285) (D.D.C.). Updated information is available on the
plaintiffs’ website: [http://www.indiantrust.com]. The Department of Justice Civil Division’s
website provides case documents. [http://www.usdoj.gov/civil/cases/cobell/index.htm.]
29 Interior Department estimates it holds 300,000 trust accounts; the plaintiffs in Cobell assert
that 500,000 is the appropriate figure. Cobell v. Babbitt, 91 F. Supp. 2d 1, at 10 (D.D.C. 1999).
30 See, e.g.,Assiniboine and Sioux Tribe of the Fort Peck Indian Reservation v. Norton (Civil
Action No. 01-35 (RCL) D..D.C.). The Cobell plaintiffs’ web site, [http://www.indiantrust.com],
contains many of the pertinent documents and news articles, and a chronology of the case.
31 5 U.S.C. § 702.
32 25 U.S.C. § 162a(d).
33 Cobell v. Babbitt, 37 F. Supp. 2d (1999); Cobell v. Norton, 2002 U.S. Dist. Lexis 17353
34 Cobell v. Norton, 226 F. Supp. 2d 1, 305-307, n. 130 - 131 (D.D.C. 2002).
35 Cobell v. Norton, 240 F.3d 1081, 1098. (D.C. Cir. 2001).