Year: 1982
Type: article
Abstract: Improvement Act, § 2, 25 U.S.C. § 1601(a) (1976); 25 U.S.C. § 175 (1976) (United States Attorney shall represent Indians in lawsuits). 2.See, e.g., United States v. Sioux Nation, 448 U.S. 371, 414-15 (1980) (guardianship limits government power to dispose of Indian land); Morton v. Mancari, 417 U.S. 535, 552 (1974) ("special relationship"); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (guardian-ward relationship) (Marshall, C.J.). "[Tlhe special relationship between the Indian tribes and theFederal government continues to carry immense moral and legal force."Special Message to the Congress on Indian Affairs, 213 Pub.Papers of Richard Nixon 564, 566 (July 8, 1970)."[Y]ou will perceive . . . the fatherly care the United States intend to take of the Indians."President George Washington, quoted in Seneca Nation v. United States, 173 Ct.Cl. 917, 924 (1965) (emphasis omitted).See also letter from Leo M. Krulitz, Solicitor, United States Department of the Interior to James W. Moorman, Assistant United States Attorney General (Nov.21, 1978) (affirming the Carter Administration's view of the relationship), reprinted in Brief for Respondent, Appendix, United States v. Mitchell, 445 U.S. 535 (1980).4. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).5. Seminole Nation v. United States, 316 U.S. 286, 297 (1942).6. Id 7. E.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (power to dispose of Indian landCatholic University Law Review the application of federal criminal laws to tribal members on reservations, 8 and even to the dissolution of Indian tribes' governing structures.9 During the last twenty years, Indian tribes have sought to establish that this right of exclusive federal regulatory power gives rise to concomitant fiduciary duties.In response to the essential fairness of this claim, courts awarded equitable relief, and even money damages, to tribes suing the federal government for breach of trust in a handful of cases' ° before as guardian of the tribe); Cherokee Nation v. Hitchcock, 187 U.S. 294 ( 1902) (power to lease Indian land as guardian).8. United States v. Kagama, 118 U.S. 375 (1886) (upholding constitutionality of the Major Crimes Act as an exercise of congressional guardianship power).9. See Act of Mar. 1, 1901, ch.676, § 46, 31 Stat.861, 872 (Creek Nation tribal government to cease as of March 4, 1906, unless extended by Congress); S.J. Res. 7, 34 Stat.822 (1906) (extending tribal government until all tribal property distributed).See generally Board of Comm'rs v. Seber, 318 U.S. 705, 716 (1942).10.This handful of cases becomes larger when two categories are added.The first category includes claims brought under special jurisdictional acts during the 83 years Indian tribes were explicitly barred from suing when the government waived its sovereign immunity for damage claims by creating the Court of Claims.Act of Mar. 3, 1863, ch.92, § 9, 12 Stat.765, 767 (for a discussion of this statute and a criticism of the Indian law bar's ready acquiescence to and broad interpretation of the Act, see Hughes, Can the Trustee Be Suedfor Its Breach?The Sad Saga of United States P. Mitchell, 26 S.D.L. REV.447, 461-62 n.108 ( 1981)).To sue, tribes had to petition Congress for a statute waiving sovereign immunity and vesting the Court of Claims with jurisdiction.See, e.g., Menominee Tribe v. United States, 101 Ct.Cl. 10 (1944) (construing Act of Sept. 3, 1935, ch.839, 49 Stat.1085, as amendedby, Act of Apr. 8, 1938, ch.120, 52 Stat.208).Often these claims involved breach of trust, especially mismanagement of tribal trust funds.See, e.g., Menominee Tribe, 101 Ct.Cl. at 10.Some of these cases are gold mines of favorable language regarding the government's trust responsibilities.See, e.g., supra notes 5-6 and accompanying text.Nevertheless they are doubtful precedents, for the jurisdictional acts have been regarded as creating claims in and of themselves in recent years.See United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49 (1951).For example, in Menominee Tribe, the statute permitted the court to adjudicate claims based on treaty, statute or agreement or arising from mismanagement of property or money.Act of Sept. 3, 1935, ch.839, § 1, 49 Stat.1085, 1085.It also instructed the court to apply to the government the same standards applicable to a private trustee.Id § 3. The Menominee Tribe successfully pressed several breach of trust claims under this statute.See, e.g., Menominee Tribe v, United States, 67 F. Supp.972 (1946) (mismanagement of trust funds); Menominee Tribe v. United States, 118 Ct.Cl. 290 (1951) (mismanagement of timber).See also Menominee Tribe v. United States, 119 Ct.Cl. 832 (1951) (all cases settled for $8.5 million).Other statutes were less explicit.Compare, e.g., Seminole Nation v. United States, 316 U.S. 286, 295 (1942) ("all legal and equitable claims") with United States v. Blackfeather, 155 U.S. 180, 195 (1894) (to recover money wrongfully diverted from tribal fund) and Sioux Tribe v. United States, 64 F. Supp.312 (Ct.Cl. 1946) (to settle ownership of stock & funds held in trust).See generally F.
Author: Newton, Nell Jessup
Institution: Catholic University of America
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W810062230