NAVAJO - TREATY - WATER: THE UNTRUSTWORTHY ‘TRUST DOCTRINE’ OF FEDERAL ANTI-INDIAN LAW

a lesson in federal anti-Indian law

I thank the US Supreme Court for providing, through two recent decisions of domination over Indigenous peoples, an opportunity to demonstrate what I mean by the title of my book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples. Perhaps the trap will become so starkly clear that the way is opened for change.

On June 22, 2023, in Arizona v. Navajo Nation, the US Supreme Court ruled against the Navajo under the federal anti-Indian law ‘trust doctrine’. A week earlier, June 15, 2023, in Haaland v. Brackeen, the court upheld the Indian Child Welfare Act as an exercise of the “plenary power” of the federal government “over the Indians and all their tribal relations”. I already wrote about Haaland. Today, the focus is on Arizona.

NAVAJO TREATY – NAVAJO COAL – NAVAJO WATER

Arizona v. Navajo Nation began in 2014 as a suit by the Navajo against the US for breach of trust under their 1868 Treaty. They asked for an injunction requiring the US to carry out its trust responsibilities under the Treaty – to assess the Nation’s water needs and develop a plan to meet them. The States of Arizona, Nevada, and Colorado intervened against the Navajo, claiming a need to protect their water interests. The US denied it had any trust responsibility for the water needs of the Navajo. The Supreme Court agreed with the US.

This is not the first time the Navajo have been spurned by their self-proclaimed US ‘trustee’. In 2009, the Supreme Court rejected a Navajo demand for compensation for US ‘trust’ actions allowing Peabody Coal Company to extract millions of tons of Navajo coal at low rates for 45 years.

The coal case started in 1993 in the Court of Federal Claims, which found “overwhelming evidence” that the federal government “violated the most basic common law fiduciary duties owed the Navajo Nation”. The Claims Court concluded, however, that the government's violation of trust was irrelevant because trust duties were not specifically stated in the coal leasing laws.

The facts were outrageous. As the Court of Claims explained:

The evidence is overwhelming that [the Secretary of the Interior]…met with a personal friend who had been hired a few days earlier, solely because of his access, by one party in a royalty dispute with the Navajo Nation. The Secretary sided with his friend's new employer in this brief ex parte meeting, a meeting which remained undisclosed for eleven years until revealed inadvertently during discovery in this case.

…ex parte contacts, especially those that result in decisions worth millions of dollars to the party with special access to high officials, betray the public trust and transgress the high ideals of public service. Not incidentally, by his conduct [the Secretary] also violated basic fiduciary duties owed the plaintiff in this action, the Navajo Nation.

Ultimately, however, the court ruled against the Navajo, saying:

“The facts of this case show that the Secretary acted in the best interests of a third party and not in the interests of the beneficiary to whom he owed a fiduciary duty—a classic violation of common law fiduciary obligations. Nonetheless, the Navajo Nation has failed to present statutory authority which can be fairly interpreted as mandating compensation for the government's fiduciary wrongs.”

The court added:

“Were this a court of equitable jurisdiction considering a private trust, plaintiffs might easily qualify for remedies typically afforded wronged beneficiaries.”

The fact that the court denied relief for the Navajo Nation in these circumstances shows that the federal anti-Indian ‘trust doctrine’ is not a true trust. This is the same outcome in Arizona v. Navajo Nation.

In Arizona v. Navajo Nation, the Navajo breach-of-trust claim said the Treaty established their Reservation as a homeland suitable for farming and that this included a right to sufficient water, which, in turn, imposed on the US a corresponding fiduciary duty to assess, preserve, and protect that right. The court, in an opinion by Justice Brett Kavanaugh, rejected the Navajo argument and denied any relief.

The court repeated the notion that the US owes judicially enforceable duties to a Tribe “only to the extent it expressly accepts those responsibilities”. It said the Navajo Treaty doesn’t have any express language that “impose[s]… duties on the United States” regarding water. The opinion added that the US had fulfilled all the ‘trust’ duties it had “expressly accepted” in the Treaty.

Disputed readings of the 1868 Treaty formed the basis of the split between the majority opinion and the dissent, penned by Justice Neil Gorsuch. The dissent said some of the Treaty words were “expressly keyed to an assumption about the availability of water” and that the US had a “trust” responsibility to follow up those express assumptions, “to assess what it holds in trust and to ensure that it is not misappropriating water that belongs to the Tribe”.

Both the majority and dissent worked within the framework of federal anti-Indian ‘trust’ as something that is “bare” unless the US ‘explicitly accepts’ a responsibility to do something. The different readings arose from less and more sympathy for reading treaties in a way favorable to Tribes’ understandings of what the US was agreeing to in the negotiations; in other words, for finding some ‘express’ obligations.

Let’s look at the precedents that establish the “bare trust” doctrine and require “something more” – however it is demonstrated – to show an actual trust.

FAKE TRUST AND REAL TRUST

The ‘trust’ doctrine in federal anti-Indian law differs so markedly from ordinary trust law that they are in fact two different concepts using the same word. In ordinary law, ‘trust’ is an arrangement of three elements: property that is the subject of the trust, a trustee who administers the property, and a beneficiary in whose interests the trustee acts. In ordinary trust law, a trustee is subject to high standards of responsibility, described as “the highest known to the law”, enforced by a court.

In federal anti-Indian ‘trust’ law, the duties are perhaps the lowest known to law.

Let’s take a closer look.

In 2011, the Supreme Court decided United States v. Jicarilla Apache Nation, a breach-of-trust action filed against the Department of the Interior by the Jicarilla, alleging US mismanagement of funds held in trust for the Tribe. The Jicarilla demanded to see Interior Department management documents. The Court of Federal Claims and the Court of Appeals granted access to some of the documents, and the department appealed to the U.S. Supreme Court. The Supreme Court rejected the Jicarilla suit.

The court, in an opinion by Justice Samuel Alito, said the Jicarilla had no basis to hold the US liable for breach-of-trust because there wasn’t really a trust, even though the US claimed to be acting as a trustee. The reason, said the court, is that:

“Congress may style its relations with the Indians a ‘trust’ without assuming all the fiduciary duties of a private trustee, creating a trust relationship that is ‘limited’ or ‘bare’ compared to a trust relationship between private parties at common law.”

Alito explained, “The difference between a private common-law trust and the statutory Indian trust follows from the unique position of the Government as sovereign.”

Frederick Liu, Assistant to the Solicitor General, sang the Jicarilla song in his oral argument rebuttal in Arizona v. Navajo Nation. He said:

This idea that [the US] at least [has] a duty to do some sort of common law trust accounting is contrary to this Court's cases that say you can't import those common law duties until the tribe has gone through the threshold step of establishing a duty in a statute, treaty, or a -- or a regulation.

And so, while those duties might make sense if the government were a private trustee that had taken on all fiduciary -- all the duties of a -- of a conventional fiduciary, they don't make sense when Congress is in the driver's seat and can decide how to shape the contours of the trust relationship.

Liu’s argument revealed the key to seeing through the façade of federal anti-Indian law ‘trust’ doctrine: Even though congress claims a ‘trustee’ relationship to Indigenous peoples, “Congress is in the driver’s seat”. In Alito’s fancier words, “the unique position of the Government as sovereign” allows it to violate ordinary trust law. Such a conflict of interest is never tolerated in ordinary trust law.

Ordinary trust law is rooted in centuries of common law decisions about fiduciary responsibility in a broad range of situations. The law is almost poetic in describing the high standards of fiduciary responsibility in a situation of trust. Benjamin Cardozo, the famous Chief Justice of the Court of Appeals of New York, wrote that a “trustee is held to something stricter than the morals of the market place.” He further said that “not honesty alone, but…the punctilio of an honor …most sensitive…is the standard of behavior.” [Meinhard v. Salmon (1928)].

In sharp contrast to ordinary trust law with its centuries of rules defining the role of a trustee, federal anti-Indian ‘trust doctrine’ was created out of whole cloth in 1831, in Cherokee Nation v. Georgia, the second case in the trilogy of decisions establishing federal anti-Indian law. There, Chief Justice John Marshall made an off-hand analogy (which in legalese is called dicta) saying “the Indians… relation to the United States resemble that of a ward to his guardian.” Since a guardian-ward relation is a form of trust law, Marshall's analogy was later referred to as the ‘trust doctrine’.

Marshall based the ‘guardianship’ analogy on the previous decision in Johnson v. McIntosh, which said the US owns the entire continent under the doctrine of ‘Christian discovery’. He said Indigenous peoples are “occupants” of land the US owns, and therefore can’t be independent of the US, because “They occupy a territory to which we assert a title independent of their will.” Indigenous peoples, Johnson said, have a different and subordinate existence rather than separate nationhood. Marshall summarized by saying:

The character and religion of the [Indigenous] inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.

Marshall added:

The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.

The origin precedents of federal anti-Indian law position Indigenous lands as the trust property, the US government as the trustee, and Indigenous peoples as the supposed beneficiaries.

The “bare” trust is a new twist on “the emperor has no clothes.” The US declares a ‘trust’ for Indigenous lands and makes itself trustee subject to its own supervision based on a religious supremacy notion. When a supposed beneficiary, an Indigenous Nation, challenges the acts of the trustee, the trustee says there is only something general and unenforceable—a “bare” trust—unless the US has agreed to specific trust obligations to be enforced.

In ordinary law, a trustee is subject to judicial supervision and the court and trustee are independent from each other. In federal anti-Indian law, the courts are an arm of the ‘trustee’. The courts are the creator of the “bare trust” and “plenary power” doctrines that give the US ‘trustee’ such a dominating position.

This ‘trust’ that cannot be supervised by ordinary trust principles is no trust. It is a fraud. It is tied to the same foundation as ‘plenary power’, namely, a claim of a right of domination.

Many people, Indigenous and otherwise, fail to understand the evolution of the ‘trust doctrine’ and its relation to ‘plenary power’. They take the word ‘trust’ literally, as a promise of federal ‘protection’. It is time to see the ‘trust doctrine’ for what it is: a relic of a claim of domination by which the Supreme Court, on behalf of the federal government, pushed states aside in the rush to build an American empire on Indigenous lands. The ‘trust’ doctrine, whatever it may do regarding states, does not protect Indigenous Nations from the federal government itself.

Now you see how the doctrines of ‘plenary power’ and ‘trust’ act together to entrap Indigenous peoples: