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Indian Country takes on trust relationship debate
TUESDAY, APRIL 8, 2003

For much of last year, Neal McCaleb had a mantra. There is a conflict between the federal trust responsibility and tribal self-determination, he often told tribal leaders.

That, of course, was before battles in both areas prompted his retirement as assistant secretary last December. But the issue remains on the minds of many in Indian Country, especially in the wake of two Supreme Court rulings that tribal leaders worry will have an impact on their relationship with the United States.

Hoping to get a better handle on the debate, a group of experts will meet this week with just one major item on the agenda. "There certainly is a tension between the concept of self-determination and trust responsibility," said Tracy Labin, a Native American Rights Fund (NARF) attorney and one of the organizers of the conference, sponsored by the Indian law section of the Federal Bar Association.

The Supreme Court on March 4 issued two decisions on the federal government's trust duties. The outcome was a mixed bag, observers noted, because the Navajo Nation lost its case while the White Mountain Apache Tribe of Arizona won by one vote.

It was the Navajo decision that contrasted the government's trust obligations with greater tribal rights. Citing a federal law that puts tribes in control of their own mineral resources, the justices in a 6-3 decision struck down the tribe's $600 million breach of trust claim.

The ruling has prompted the tribe to reconsider numerous business deals, which require approval by the government, and a Navajo official last month called the court's pronouncement a "new philosophy" that could affect economic development and the quality of life on the reservation.

Robert Brauchli, the attorney who won the Apache case, said the Navajo experience teaches Indian Country a lesson. "I would say that tribes have to be very careful before entering into any agreement with the Department of the Interior," he said. "Tribes should make sure that all the duties are spelled out to the extent they take over management of trust assets."

Keith Harper, another NARF attorney, is handling a lawsuit that affects individual Indians whose resources are controlled entirely by the government. He said the Navajo decision won't have an impact on the case but challenged the notion that it should free federal officials of responsibility.

"I don't agree that there is this tension that they point out," he said of the court's ruling. "Self-determination allows for [greater tribal control] but it doesn't allow for a trustee to undermine and keep information from the beneficiary that is critical to make an informed decision."

The Bush administration has been largely mute on the cases for which is sought review. Theresa Rosier, a Bureau of Indian Affairs aide, said at a Senate hearing last month that the Navajo ruling confirmed the existence of a "limited trust responsibility," an interpretation some dispute.

What many agree on, though, is the need for legislation to clarify the government's obligations. Efforts to do that fell apart last year due to objections by the Bush administration. With Indian Country holding the potential for energy and other developments, tribal leaders say standards, oversight and reform are critical.

"In future trust asset deals, we are really going to have make sure that we are at the table and that we're making sure that the Department of the Interior and the Bureau of Indian Affairs are accepting that responsibility," said Tex Hall, president of the National Congress of American Indians and chairman of the Mandan, Hidatsa and Arikara Nation of North Dakota.

The conference, "Tribal Self-Determination and the Federal Trust Responsibility: Collaboration or Conflict?" takes place Thursday and Friday in Albuquerque, New Mexico.

More Information:
28th Annual Federal Bar Association Indian Law Conference

Relevant Links:
Federal Bar Association - http://www.fedbar.org
Indian Trust: Cobell v. Norton - http://www.indiantrust.com

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U.S. pressed on trust duties (12/3)
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U.S. argues limits as trustee (8/9)
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