Introduction to Tribal Concepts
Federal Trust Responsibility
Another vital aspect of the unique relationship between the federal government and federally recognized tribes is the federal trust responsibility.
This trust responsibility requires the federal government to uphold rights reserved by or granted to Indian tribes and Indian individuals by treaties, federal statutes, and executive orders, which are sometimes further interpreted through court decisions and federal regulations.
The famous 1831 Supreme Court decision Cherokee Nation v. Georgia introduced the concept that while Indian tribes could not be considered to have the same status as foreign nations because they were located within the boundaries of the United States, they still retained their status as nations. Because tribes had ceded lands in exchange for certain promises of provisions and protection from the United States, Chief Justice John Marshall coined the term "domestic dependent nations" to refer to the status of the tribes.
Federal courts often discuss the trust responsibility as having the elements of a common-law trust, which generally has three elements: a trustee, which in this case is the U.S. government; a beneficiary, which may be a tribe or an individual Native American; and a corpus, meaning the "body" of the trust--for example, lands, resources, or funds. Unlike a common-law trust, however, the federal trust responsibility is defined by federal statues and regulations
Trust lands cannot be sold, leased, or otherwise alienated by the beneficiary without the approval of the U.S. In dealing with trust property, the trustee considers the desires of the trust beneficiary, but makes independent decisions based on the beneficiary's best interests.
The government must ensure that its actions are consistent with the protection of trust lands and tribal rights, while in keeping with its other statutory obligations. This means that harm to an Indian trust asset cannot be outweighed in favor of the "general public welfare" or any other considerations that do not directly compensate the trust beneficiaries for the harm to their trust assets. Rather, the government must balance its competing statutory obligations
All federal agencies share in the trust responsibility.
Trust responsibility issues can be complex, and may have legal consequences. When questions arise regarding a possible trust responsibility issue, federal employees should consult with their agency's legal counsel for further guidance.