Jack Stevens: A Brief Explanation of Indian Trust Lands

Tribal lands comprise 56 million acres of the US, a land mass slightly larger than Minnesota, the 12th biggest state in size.

Most Americans are surprised to learn that the members of federally recognized tribes who occupy this area do not own the land they reside upon, which means that they cannot sell, pledge, mortgage, or otherwise use the land as collateral. Rather, it is held in trust by the federal government.

A trust is a relationship in which a trustee holds title to trust assets (called the corpus) for the benefit of a third party.

The trustee is a fiduciary, which means that he or she must preserve the value of the assets held in trust and always act in the best interests of the trust’s third-party, beneficial users. Trustees owe a duty of loyalty toward trust beneficiaries. They must avoid what is called self-dealing and waste.

Congress became alarmed at the rapid disappearance of Indian land and passed the Indian Reorganization Act of 1934, 25 U.S. Code § 461 et seq. This law placed all Indian land into an explicit federal trust, with the lands and resources of the tribes being the corpus of the trust; the Indians residing on those lands being the third-party, beneficial users of the trust; and the federal government being the legal titleholder of the land and its employees being trustees. All the elements of a common law trust are inherent in this scheme.

The U.S. Supreme Court recognized in the case of U.S. v. Mitchell, 463 U.S. 206 (1983) that federal employees have fiduciary obligations for the proper management of Indian lands and resources and that breach of that trust can lead to monetary damages. This applies to all federal employees who deal with federally recognized tribes, not just to BIA or Department of Interior (Department) employees. This is because the whole U.S. federal government is the trustee.

Ignorance of this concept is widespread, even among those who should know better, including even some federal attorneys. In 2015, the Department’s Division of Energy and Mineral Development entered into a multi-agency memorandum of understanding (MOU) pledging cooperation in developing tribal energy. During negotiations with Department of Energy (DOE) on the wording of the MOU, DOE’s attorneys specifically rejected language that treated DOE employees as trustees for Indian lands.

This was wrong. But it didn’t matter whether they wish to be called trustees or not because the courts will always treat them as trustees if they breach their trust obligations.