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Mr. Chairman, distinguished guests, Native Hawaiians, I appreciate this opportunity to testify here today in this very important hearing and to provide the Native Hawaiians with some of the perspectives of American Indian tribes who have been in a trust relationship with the United States Government for almost 160 or a little over 160 years.

Today I would like to take this opportunity to address three questions, the first being, after 100 years, over 160 years of experience in a trust relationship with the United States Government, what are the views of Indian tribes as to whether that trust should be maintained or should it be eliminated?

Second, I would like to talk about what the trust relationship is in the United States, as described by the United States Supreme Court in decisions dating back to 1829 and coming up all the way to the present time. Those decisions articulate how the trust is created and what precisely are the obligations imposed upon the United States Government as a result of that trust relationship.

Finally, I would like to address a number of problems that Indian tribes have experienced on the mainland in enforcing that trust responsibility on the part of the United States Government.

My own background to testify on these matters includes being born and raised on an Indian reservation in the United States. More recently, the members of my firm and myself, have an Indian-owned law firm in private practice, we do both legislative work and litigation and other legal work on behalf of American Indian tribes throughout the United States.

In the course of our representation of our Indian tribal clients, on several occasions we have had the opportunity to litigate in the United States Court of Claims, in the Federal District Courts, and in the 10th Circuit Court of Appeals to enforce the trust relationship to several Indian tribes.

In addition to that, our firm participated quite recently in the promulgation of Federal regulations to value Indian minerals which are developed pursuant to leases where the royalty or the income of the Indian tribes is based on a percentage of the value of those minerals.

We worked with the Department of the Interior in drafting regulations with the kind assistance of several congressional committees to adopt regulations that conform with the Federal trust responsibility to Indian tribes as lessors of these lands.

Let me address for just a brief moment the first question of, Do Indian tribes still want a trust status in the United States? There are two answers to that question. One is that Indian tribes wear two hats. One hat is that of a landowner, much the same as many of you as Native Hawaiians have.

In addition to that hat, Indian tribes wear a sovereign hat. United States Supreme Court decisions for 160 years have made clear that Indian tribes are not only landowners, but they are sovereigns with respect to their tribal lands.

The trust status with respect to the development of tribal lands has a very mixed view in Indian country. While the trust relationship in many instances has assisted through Federal oversight and responsibility in insuring that the lands are not wrongfully taken or mismanaged, there are far many more examples of the United

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States mismanaging those lands, taking those lands without providing what the Indians view to be adequate compensation. So there is, at least with respect to Indian tribes as landowners, a real fear that the trust relationship is a double-edged sword. It can protect, but it also can destroy, and we must always be aware of that. I will address in a moment how some of the tribes in the United States are advocating that we make the trust be more a source of protection rather than destruction of Indian tribal rites.

With respect to Indian tribes as sovereign governments, the United States Supreme Court has made clear, as several district courts, that the trust relationship of the United States does not extend to protecting the sovereign status of the Indian tribes. But, this is what modern Supreme Court decisions say. As I will discuss in a moment, that is precisely in opposite to the original formulation of the Federal tribal trust relationship which I view in part to have been for the very express purpose of protecting the autonomy, the political as well as land ownership autonomy, of the Indian tribes.

So today in the United States, again while there are very few tribal people willing to eliminate the trust relationship because there are many, many initiatives going on to develop lands, and there is concern that there be Federal dollars and Federal technical assistance available to the tribal people to decide whether and how to develop these lands, at the same time there is a growing number of frustrations with what that trust relationship has or has not been in the past.

Let me now turn to what some of those items are. There are essentially two kinds or two categories of trusts under American law, and Federal Indian law in particular. The first is the trust responsibility between the United States as a whole and the Indian tribes. That is known as the general trust relationship.

That relationship was described in what's known as the Supreme Court's Marshall Trilogy. Chief Justice Marshall in 1829, in 1830, and in 1831 issued three United States Supreme Court decisions which describe the United States relationship to Indian tribes as one of a trust relationship, as one of a guardian and one of a ward.

If you analyze these decisions and read them very, very carefully, the first is in 1829, Johnson v. Macintosh, where the Supreme Court of the United States invalidated a non-Indian's purchase of Indian land from an Indian tribe which was not approved by the U.S. Government.

In that decision the U.S. Supreme Court said that when the United States was discovered and conquested by the colonizers, that the legal title to all of North America's Indian lands was taken by the United States, so that thereafter the fee title was held by the United States and the Indians retained what's known as the equitable title or the possessory title.

That split title and the guardian-ward relationship based on it developed after conquest gave Congress, gave the United States broad powers of protection over Indian tribes.

In 1831, in Cherokee Nation v. Georgia, followed thereafter by the case of Worchester v. Georgia, the U.S. Supreme Court described even more clearly this broad trust relationship between the United

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States Government and the Indian tribes and described it as follows:

First, the Court characterized the Indian tribes of the United States as distinct political societies capable of managing their own affairs and themselves. The Court also characterized the Indian tribes as not entirely foreign nations, but rather as domestic dependent nations. And, thereafter, the Court then described in the Cherokee Nation case what is now the cornerstone of Federal Indian law; that is, the Federal trust responsibilities to Indian tribes.

Again, that responsibility was described as a guardian-ward relationship with the tribal people at the time. In 1820, 1821, 1829, the United States described the tribal peoples as people in need of protection, in need of protection from westward expansion, the colonizing which was going on in the United States at that time, and that the United States, by virtue of conquest and discovery, took on that moral and, as a result of these Marshall decisions, a legal responsibility to protect the Indian tribes.

In the case of Worchester v. Georgia, the relationship was described even more carefully in which the Court held that the State of Georgia did not have jurisdiction to require a license from a nonIndian missionary who conducted his work solely within the boundaries of an Indian reservation. In reaching its decision, the United States Supreme Court described the tribes as self-governing nations that enjoy a relationship with the United States Government described as, and this is the crucial language that I think is the foundation of the United States trust relationship to Indian tribes: "The relation is one of a nation claiming and receiving the protection of one more powerful, not that of an individuals abandoning their national character and submitting as subjects to the laws of a master.”

Mr. Chairman, in our view, those who represent Indian tribes, the Federal tribal trust relationship in its essence must be viewed as one that is both moral and legal in nature, and it is one that obligates the United States Government to protect, pursuant to fiduciary standards and duties, the right of Indian tribes to political autonomy as well as to careful and beneficial use of the lands.

Unfortunately, however, Mr. Chairman, in the years following the Worchester Trilogy, the Marshall Trilogy, the precise obligations of Congress pursuant to that general obligation to protect and develop tribal lands and to protect the political autonomy of Indian tribes was lost in a series of Supreme Court decisions.

Each of these decisions was based on the Supreme Court of the United States' view that Indian tribes were more like foreign nations than States, and that because that was so and because the United States established treaty relationships with the tribes, the Supreme Court of the United States for many, many years following those turn-of-the-century decisions refused, was reluctant to interfere with decisions made by Congress as to how to exercise its trust obligations with respect to Indian tribes.

This early judicial deference to Congress on these Indian matters came to be known as the plenary power doctrine in Indian law, and it paralleled the political question doctrine both in terms of its development, its height, and eventually its demise.

Mr. Ch beneficiando


Under the plenary power doctrine, many, many confiscations of Indian lands by the United States Government were upheld by the United States Supreme Court because of that power, that supposed power of the United States Congress.

In none of these Supreme Court decisions was there any hint that there might be a limit on the power of the Congress with respect to its legislation on Indian tribal matters; that is, not until about 1940, when after a series of confiscations of lands were challenged, one of those cases got to the United States Supreme Court. In United States v. Creek Nation, the Supreme Court held that the paramount Federal power over Indian tribes, even when exercised pursuant to the trust responsibility of the United States to the Indian tribes, was not so great as to be viewed as a power to act in conflict with and in utter disregard of the Fifth Amendment to the United States Constitution.

In that case, the Supreme Court mandated the United States to pay compensation under the Fifth Amendment for the lands taken from the Creek Nation.

It wasn't until many, many years later, 1974 indeed, that the Supreme Court had an opportunity once again to characterize that general United States tribal trust relationship. The occasion was a challenge by non-Indian Federal employees to a decision made by Congress to accord an employment preference to Indians on their reservations in the Federal Government service to these tribes.

The non-Indians said that Congress, in enacting this preference for Indians, was acting in violation of the equal protection clause of the Fifth Amendment, arguing that it was a racially discriminatory classification to award employment preferences to Indians to the exclusion of non-Indians.

The United States Supreme Court in the case of Morton v. Mancari held that Indians are not a racial classification. The relationship between the United States and the Indian tribes is a political one governed by treaties, governed by the trust relationship. And, therefore, the very strict judicial scrutiny that results from racial classifications was held not applicable to classifications made by Congress with respect to Indian matters.

No equal protection violation, was the decision made by Congress to uphold-according an employment preference, but in the course of reaching its decision the Supreme Court articulated a constitutional limit on the power of Congress to legislate with Indian tribes and described that limit as, when Congress legislates on Indian matters, it must take action that is rationally related, according to the case, to Congress' unique obligation to Indians.

Now what does that mean? It wasn't until 1980 that the Supreme Court had an opportunity to provide more definition to what might be Congress' unique obligation to Indians under the Constitution of the United States. In the case of United States v. Sioux Nation, where a number of the Sioux tribal people challenged the ability of the United States to take vast portions of their tribal lands, the Supreme Court of the United States had the opportunity to review the amount of compensation that was paid by the United States Government to the tribes for the taking of their land.

In this case the Supreme Court held that the Fifth Amendment obligation to compensate Indian tribes for takings of Indian lands is not the same Fifth Amendment obligation to compensate that other citizens of the United States enjoy. Rather, when Congress, because of the trust responsibility, makes compensation, it must only make a good faith effort to compensate. All others of the United States are required to receive the fair value for their land.

Since the Sioux Nation case, there has been no more Supreme Court description of that general tribal Federal trust relationship. Today there's no more definition than exists with the Sioux Nation case and the Mancari case. Tribes submit that the Worchester Trilogy, the Marshall Trilogy, requires more; that it is not just Congress acting in a rational manner with relation to its unique obligation, but it goes beyond that. It goes to an obligation to protect the political autonomy and the land rights of the Indian tribes.

As a result of that lack of definition in the Federal tribal trust relationship, Indian tribes view the trust sword again as doubleedged. It is a very, very powerful tool to protect tribal interests, but at the same time it has become a very, very powerful tool in derogation of tribal interests.

We submit again the original establishment of the relationship, the morality of the time, and the legal decisions of the time, 1829 through 1831, do not permit that view of the Federal tribal trust relationship.

In addition to this general Federal tribal trust relationship, there are a number of trust duties that have been imposed by the United States Congress on the Executive branch of the United States Government through a series of congressional enactments. Whether or not these congressional enactments create a trust, and precisely for what purpose, has been the subject of ample litigation by Indian tribes in the United States.

The Indian Mineral Leasing Act of 1938, the timber management statutes have been construed in two decisions, the Mitchell I and the Mitchell II decision in 1980 and 1983. There the United States Supreme Court held that when Congress by statute imposes detailed duties of management upon the Federal agencies, that gives rise to a trust relationship, fiduciary obligation and, more likely than not, the right to obtain compensation from the United States for violation of these trust duties.

It's two sources of trust: a general tribal Federal trust relationship which has not been accorded the benefit of a whole lot of definition about the Federal duties, and the detailed duties of trust established by Congress upon Federal agencies.

Now at this juncture I would like to note the leading author a treatise on Indian law, a man named Felix Cohen who worked for the Department of the Interior. Felix helped to author a very critical document. It's known as 55 Interior Department 14.

In that document the Secretary of the Interior and his lawyer in 1935 enumerated a number of tribal powers that should not be abrodated by trust. These were the inherit rights of the tribal people of the United States.

As I sat in the last day and a half listening to the various issues that seem to be arising here in Hawaii, one of them is the question of enrollment. Under 55 Interior Department, the United States' current view is that matters of enrollment are at the heart of tribal self-government. It is the right of the tribal people, and not

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