An Indian trust for the twenty-first century

The statutory and policy bases of the federal trust responsibility for Indian lands arose at the end of the nineteenth century and the beginning of the twentieth century. Policy at that time was based on two related propositions: (1) Indians are incompetent and (2) Indian tribes were soon to be dismantled as political institutions separate from the United States. These notions were basic to the judicial development of the doctrine of federal plenary power over Indians and their property. With these ideas as the foundation of the trust, it grew into a stifling, paternalistic, and ultimately ineffective system of managing Indian property. While virtually all other areas of federal Indian policy have undergone dramatic change, with a radical shifting of authority from the Bureau of Indian Affairs to tribal governments, the trust remains largely ineffective, unenforceable, and immune from fundamental change. Congress must change the trust to reflect the capabilities of the tribes and to implement the federal policy of empowering tribal governments to meet their responsibilities as permanent components of the American federalist system. Tribes should be offered the opportunity to manage their lands without federal supervision while at the same time sustaining their immunities and authorities regarding trust lands. Congress should create both financial and policy incetives for tribal governments to assume these responsibilities. Rather than insisting that the Department of the Interior improve its execution of a system that is flawed at its foundation, Congress should clear a path for tribes that wish to use their primary capital asset - land - to create the financial resources needed to build viable reservation economies. By doing so, Congress will bring the trust into the twenty-first century.