Law | Trust

Turtle Talk: DOI and DOJ used to argue separately in trust cases





"Among other things, President Nixon’s Special Message to Congress on Indian Affairs recognized that the federal government acts “as a legal trustee . . . for American Indians” and that the Executive Branch has difficulty fulfilling that high duty regarding land and water rights because of “an inherent conflict of interest” of the sort addressed 13 years later in Nevada v. United States. President Nixon thus proposed the legislative establishment of an Indian Trust Counsel Authority to address these concerns. Notably, President Nixon did not recognize any conflicts of interest regarding Indian trust fund management.

Legislation was considered to address the conflict of interest concern about natural resources held in trust, but was not enacted. The Executive Branch in the early 1970s therefore sought to address this concern even without legislation by filing what became known as “split briefs,” wherein the Department of the Interior argued its position in a case on behalf of Indians separate from the Justice Department’s view against Indians. This was done six times and each time the DOI position prevailed. "

Get the Story:
Daniel Rey-Bear: Split Briefing in Indian Trust Cases (Turtle Talk 6/14)