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Excerpted from: Kevin K. Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harvard Law Review Forum 200 (April 2017) (133 Footnotes) (Full Document)



For nearly two hundred years, the United States has been deemed to have legal and moral obligations to the American Indian nations that shared North America--sometimes voluntarily, sometimes not-- with immigrants. Today, these various federal obligations, collectively known as "treaty and trust responsibilities," are no less weighty as the United States has grown to become the richest economy in the world. However, the boundaries of these responsibilities as well as their content have evolved dramatically with changes in federal policy in recent decades.

For much of American history, the federal trust responsibility was characterized by broadening federal administrative control over Indian tribes, with federal officials making most of the important decisions on Indian reservations and diminishing tribal governmental authority. More recently, however, federal control has been receding and giving way to a gradual restoration of tribal authority. More and more, the federal government defers to tribal priorities and tribal decisionmaking. While this development has been positive for tribes, it has come at a cost.

As tribal control has increased, courts have been less willing to hold the federal government responsible for its actions (and inactions) in Indian country. Indeed, if the most compelling way to determine the measure of a responsibility is to weigh the costs of its breach, the federal trust responsibility has been diminished. Judicial enforcement of the trust responsibility today is more rare and limited in scope.

Proclaiming the death of the trust responsibility, however, is premature. While courts have narrowed the legal enforceability of the trust responsibility to tribes, the political branches have expanded the meaning of the trust responsibility. Congress and the President have invigorated it with increased federal funding to provide the services and programs required to meet it. They have also settled dozens of breach-of-trust actions by tribes that might otherwise have been successfully defended by the federal government in the courts. In some ways, meaningful fulfillment of the federal trust responsibility has been relocated from the courts to the political branches.

More importantly, the political branches have come to view the content of the trust responsibility differently. The obligations under the federal trust responsibility have evolved from a paternalistic model in which the federal government provides services and programs and makes decisions for impoverished Native Americans, to an understanding that the trust responsibility obliges the federal government to support and revitalize tribal governments and even advocate and protect tribal sovereign powers. Congress and the executive branch have restored tribal powers, for example, by broadly recognizing tribal felony criminal jurisdiction over American Indians and even recognizing limited tribal criminal jurisdiction over non-Indians, reversing longstanding federal policy.

More importantly, in place of federal programs and services, the last fifty years have been characterized by the growth of federal contracting with tribes to perform federal trust functions. Today, billions of dollars of federal appropriations are spent not by the federal government, but by tribes that have contracted to provide federal services to Indian people through so-called "tribal self-determination contracts." In other words, tribes are being paid by the federal government to exercise federal governance powers over Indian lands and people.

In general, the new model has been very successful. As tribal governmental powers have increased and tribes have entered contracts to perform more federal functions, tribal governments have proven more institutionally competent than the federal government in serving Indian people. Consequently, while federal judicial interpretations of the trust responsibility have rendered the federal government less legally accountable to Indian people, the political branches have shifted these responsibilities to tribal governments that are much more accountable to Indian people. Today, on many reservations, the United States has been relegated to "principal underwriter" of many of the services required under the trust responsibility. As the federal trust responsibility has come to be seen in this new light, Indian people have gained greater control over their own destinies.

The restoration of tribes to functional sovereigns with broad powers funded by congressional appropriations under the federal trust responsibility, however, necessarily raises new issues. As tribal governments have begun to exercise substantial power, tribal decisions have begun to have more significant consequences and have produced confusion about federal and tribal roles and responsibilities. For example, should the federal government be liable to Indian people for actions of the tribal government? And what is the obligation of a tribal government to its own people and others for human rights violations and other wrongs? As tribal powers have grown, federal policy has come full circle, with some commentators asking for new federal oversight of tribal governments.

This Essay briefly explains federal Indian policy at this point in history and looks to the future.

Part I traces the recent rise of tribal self-governance. Part II traces the development of the trust responsibility and its recent diminishment in the courts.

Part III explains what these countervailing developments mean for the trust doctrine today and explain how it has evolved to support tribal self-governance and a remarkable tribal renaissance. This Part also identifies the important new norms that have displaced paternalism in federal Indian policy.

Part IV explains how vestiges of paternalism continue to cast a shadow over true tribal self-governance as the new self-governance model has posed new obstacles and subjected tribes to new scrutiny. Finally, it identifies some of the harder questions--and competing interests--tribes must confront as more powerful self-governing sovereigns.

[. . .]

The federal trust responsibility has evolved from a paternalistic obligation to care for Indian people to a tool protecting the boundaries of tribal governmental authority to provide that care itself. But the evolution is incomplete. Moreover, new conflicts and questions are inevitable as the power of tribal governments grows and tribes flex more governmental authority. The questions arising from tribal power will be answered in many different contexts and under different sets of rules. For some of the questions, guideposts already exist. For others, federal policymakers and judges have sometimes been left to construct answers on an ad hoc basis by muddling through specific laws and facts that fail to account for broader and more modern principles, such as norms of respect for tribal sovereignty.

As the formerly paternalistic trust responsibility gives way to a new federal policy favoring tribal self-governance, the role of the federal government on Indian reservations will continue to be debated and modified. During the coming decades, federal policymakers and courts will be forced to decide, in a range of areas, whether the federally supported tribal renaissance justifies more federal oversight of tribal decisions or, in the alternative, stronger allegiance to norms of respect for tribal sovereignty.

Regents Professor of Law, University of New Mexico School of Law.

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