Opinion | Trust

Irene Cuch: The future of the federal trust responsibility

The following letter from Irene C. Cuch, the chairwoman of the Ute Tribe of Utah, was sent to Attorney General Eric Holder on April 10. The tribe has reached a trust management settlement with the federal government.

Since the filing of the Cobell and the tribal trust fund mismanagement cases, the United States and Indian tribes have been at odds over the definition and breadth of the federal government’s trust responsibility. Now that many historical wrongs have been resolved by settlement, it is our sincere hope that we can move forward together, as trustee and beneficiaries, to insure the future security of our legal rights.

The simple fact is that neither Cobell, nor any of the tribal cases, resolved many of the ongoing, practical issues related to trust asset management. Thus, we both have a lot of work to do in order to ensure that cases like this do not have to be filed in the future. We take seriously President Obama’s promises to “fix” the system.

Our tribes surrendered tens of thousands of acres of land in exchange for promises that the United States made in our treaties. Over almost 18 years of litigation, Republican and Democratic Administrations’ worked hard to restrict the court’s interpretation of those promises. It is now time for that to stop!

If this Administration is serious about avoiding further rounds of similar litigation by future generations, and we believe that it is, it is imperative that we begin a new dialog designed to put some real teeth into President Obama’s and the Administration’s promises.

One of the first things that you can do is to take whatever steps are necessary to ensure that no agency, office or division of this, or any future Administration, has the unilateral authority to reclassify tribal trust dollars as secretarial funds, without full tribal consultation. The Office of Management and Budget did this kind of reclassification to our Central Utah Project Completion Act funds in calendar year 2000 and the Ute Indian Tribe did not find out that our funds were no longer held in trust until after this litigation was initiated. This is exactly the type of action that leaves us worrying about what can and might well happen in the future.

We believe in the commitment and good faith of this Administration, but we as tribal leaders have to be concerned with the future. What happens seven years from now? Fifteen years from now? Who will hold your positions in the Administration at that time and how will they interpret the federal trust responsibility to my Tribe and its members? How can we be certain that there will be a consistent performance over time? Clearly, we need something more binding than a few case settlement agreements to protect all of our rights.

For all of these reasons, we look forward to working with you and your staff to take as many concrete steps as possible, in the short years that we have together, to ensure that our trust responsibility is not only maintained but flourishes. We will be working with the new Secretarial Commission on Trust Administration and Reform established under the Cobell settlement, but we also need the Department of Justice’s unbridled commitment as well.

By negotiating and executing these settlement agreements, we together resolved significant claims that arose generations ago. But that is just a start, and the job is not finished. In our settlement negotiations, this Administration’s representatives sought to rely on the American Indian Trust Management Reform Act of 1994, to limit the federal government’s trust obligations, and to define the scope of the federal government’s trust responsibilities. These are things that the 1994 Act was never intended to do. In fact, the 1994 Act was nothing more than a latten response to the crisis in trust fund management which ultimately led to this litigation.

Clearly, the 1994 Act was never intended to replace centuries old trust doctrines, because it is neither an authoritative nor a comprehensive statement of the federal government’s trust responsibilities. It is, at best, an imperfect sketch of what needs to be done.

Now that past wrongs have been resolved with these settlements, it is time for us to design a fair and comprehensive system which articulates standards of responsibility and accountability which can endure over time. This is the only way that tribes and Indian people can have real comfort in the words and promises of President Obama. For all of these reasons, let us take this momentum and create something truly historic, something that will endure to the seventh generation. Let us continue working for as long as needed to secure a strong and practical system of trust management to ensure that for generations to come, our respective rights and obligations will be clearly defined under agreed-upon, binding principles.

Related Stories:
Ute Tribe in Utah announces trust management settlement (04/06)

Join the Conversation