PUB00021 - Laserfiche WebLink

Home Browse Search

of the government, entitled to its fostering care and protection."(Cohen 1982:106). This Federal policy embodied the philosophical precept of manifest des- tiny that was so integral to the westward expansion movement. On March 3, 1849, Congress passed legislation that established a new executive department of the gov- ernment of the United States, the Department of the Interior, and created the position of the Secretary of the Interior. Section 5 of this Act declared in part: "[T]he Secretary of the Interior shall exercise the supervisory and appellate powers now exercised by the Secretary of the War Department in relation to all the acts of the Commissioner of Indian Affairs...". This transfer of authority over Indian affairs to the Department of Interior marked the termination of direct War Department control over Native American affairs (Cohen 1982:119). It also implied that the Department of the Interior was the exten- sion of the federal government to fulfill the trust responsibility of the United States to the Native American tribes. The Supreme Court first recognized the existence of this trust relationship between the federal government and Native Americans in its early decisions interpreting treaties. As stated above, in almost all of these treaties, the Native Americans gave up land in exchange for promises. These promises included a guarantee that the United States would create a permanent reservation for the tribe and would protect the safety and well-being of all tribal members. The Supreme Court has held that such promises create a trust relationship and a duty of protection toward the Native Americans. This relationship is marked by peculiar and cardinal distinc- tions which exist nowhere else in government and resembles that of a ward to his guardian. 24 The central tenet of this unique relationship is one of trust: the Native Americans trust the United States to fulf1ll the promises which were given in exchange for their land. The federal government's obligation to honor this trust relationship and to fulfill its treaty commitments is know as its trust responsibility (Pevar 1992:26). This relationship and trust responsibility should be thought of not only in the terms of a moral and legal duty, but also as a partnership agreement to insure that Native American tribes have available to them the tools and resources to survive as distinct political and cultural groups (Pevar 1992:31). Yet, the United States goverrunent has been notoriously unfaithful in observing its commitments to Native American tribes (Pevar 1992:32). Federal Indian trust law, as expressed by both Congress and the courts, calls for federal protection, not domi- nation of Native American tribal lands or affairs. The protection of tribal lands, natural resources, and rights, and the fulfillment of the trust responsibility, is also furthered by the rule that treaties and statutes affecting Native American interests are to be liberally construed in favor of the Native Americans. For example, any Federal activity off reservation lands that would dimin- ish on-reservation water supplies or pollute reservation property have been determined to violate this trust doctrine (Pevar 1992:30). The Court has, however, only rarely said what consequences follow from the govern- ment's failure to fulfill its trust obligations. The Federal government's trust responsibility to Native Americans is not limited in application to only the Department of the Interior. The Ninth Circuit upheld the application of the trust responsibility to the United States Navy, Pvramid Lake Paiute Tribe v. U.S. Dept. of ~898 F,2d 1410, 1420 (9th Cir. 1990) stating that it applies to "any federal government action" and has also