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In an extended legal opinion regarding the meaning
of
the trust responsibility, former
Department
of
the Interior Solicitor Leo
M.
Krulitz concluded that "[t]he trust responsibility
doctrine imposes fiduciary standards on the conduct
of
the executive. The government has
fiduciary duties
of
care and loyalty, to make trust property income productive, to enforce
reasonable claims on behalf
of
Indians, and to take affirmative action to preserve trust property."
Memorandum from Department
of
the Interior Solicitor Leo
M.
Krulitz to Assistant Attorney
General James
W.
Moorman, at 2 (Nov. 21, 1978). This opinion remains in effect today.
In exercising this broad authority, past Secretaries have acknowledged that the Department's
relationship with Indian tribes and individual Indian beneficiaries is guided by the trust
responsibility and have expressed a paramount commitment to protect their unique rights and
ensure their well-being, while respecting tribal sovereignty.
See e.g., Secretary's Order 3317,
Department
of
the Interior Policy on Consultation with Indian Tribes (Dec. 01, 2011
);
Secretary's Order 317 5, Departmental Responsibilities for Indian Trust Resources
(Nov. 8, 1993); Secretary's Order 3206, American Indian Tribal Rights, Federal Trust
Responsibilities, and the Endangered Species Act (Jun. 5, 1997); Secretary's Order 3215,
Principles for the Discharge
of
the Secretary's Trust Responsibility (Apr. 28, 2000); Secretary's
Order 3225, Endangered Species Act and Subsistence Uses in Alaska (Jan. 19, 2001).
The Department has also sought to build a strong government-to-government relationship with
Indian tribes. The Department
of
the Interior Policy on Consultation with Indian Tribes, which
was adopted in December 2011, sets forth standards for engaging with Indian tribes on a
government-to-government basis to ensure that the decisions
of
the Department consider the
impacts on affected Indian tribes and their members.
Sec. 4 A New Era
of
Trust. During the last few decades, the trust relationship has evolved.
In the Era
of
Tribal Self-Determination, the Federal trust responsibility to tribes
is
often fulfilled
when the Department contracts with tribal governments to provide the Federal services owed
under the trust responsibility. Because tribal governments are more directly accountable to the
people they represent, more aware
of
the problems facing Indian communities, and more agile in
responding to changes in circumstances, tribal governments can often best meet the needs
of
Indian people. In sum, the Federal trust responsibility can often be achieved best
by
empowering
tribes, through legislative authorization and adequate funding to provide services that fulfill the
goals
of
the trust responsibility.
In recent decades, the trust relationship has weathered a difficult period in which Indian tribes
and individual Indians have resorted to litigation asserting that the Department had failed to
fulfill its trust responsibility, mainly with regard to the management and accounting
of
tribal trust
funds and trust assets. In an historic effort to rebuild the trust relationship with Indian tribes, the
Department recently settled numerous "breach
of
trust" lawsuits. This includes Cabell
v.
Salazar, one
of
the largest class action suits filed against the United States, and more than 80
cases involving Indian tribes. Resolution
of
these cases marks a new chapter in the Department's
history and reflects a renewed commitment to moving forward in strengthening the government-
to-government relationship with Indian tribes and improving the trust relationship with tribes and
individual Indian beneficiaries.