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A Brief History of Indian Trust Administration Reform: Will the Past be Prologue?
| Content Provider | Semantic Scholar |
|---|---|
| Author | Membrino, Joseph R. |
| Copyright Year | 2014 |
| Abstract | The Commission on Indian Trust Administration and Reform (Commission) approved its final report on December 10, 2013. Secretary of the Interior Salazar established the Commission by secretarial order3 as an outgrowth of the Cobell v. Salazar settlement.4 The order called for [A] thorough evaluation of the existing management and administration of the trust administration system to support a reasoned and factually based set of options for potential management improvements. It also requires a review of the manner in which the Department audits the management of the trust administration system, including the possible need for audits of management of trust assets. This paper summarizes the history of federal Indian trust administration beginning in the 19 century, focusing on the officials whose duty has been to implement evolving * Attorney, Hall, Estill, Hardwick, Gable, Golden and Nelson, Cooperstown, N.Y.; formerly, Assistant Solicitor, Branch of Water and Power, Division of Indian Affairs, United States Department of the Interior. ± This article was inspired by the University of Tulsa College of Law's Ross and Margaret Swimmer Indian Affairs Collection. The collection was acquired by the Maybee Legal Information Center in 2013, and is located on the first floor. The collection provided a substantial portion of the research for this article, and is intended to highlight the collection's value for students and lawyers interested in the history of Indian trust administration. 1. REPORT OF THE COMMISSION APPOINTED TO OBTAIN CERTAIN CONCESSIONS FROM THE SIOUX, GEO. W. MANYPENNY, Chairman, et al., December 18, 1876 (Report of the Sioux Commission), reprinted in Annual report of the Commissioner of Indian Affairs to the Secretary of the Interior for the year 1876, at 344 [hereinafter 1876 Annual Report]. 2. See Dep't of the Interior, Report of the Commission on Indian Trust and Administration Reform (Dec. 10, 2013), available at http://www.doi.gov/cobell/commission/upload/Report-of-the-Commission-on-IndianTrust-Administration-and-Reform_FINAL_Approved-12-10-2013.pdf. 3. See Order from Ken Salazar, United States Secretary of the Interior (Dec. 8, 2009), available at http://www.doi.gov/cobell/commission/upload/2009-12-08-Order-3292.pdf. 4. Claims Resolution Act of 2010, Pub. L. No. 111-291, Title I § 22, 124 Stat. 3064, 3066 (2010). 5. Salazar, supra note 3, at 1. 1 Membrino: A Brief History of Indian Trust Administration Reform: Will the P Published by TU Law Digital Commons, 2014 228 TULSA LAW REVIEW [Vol. 50:227 Indian affairs policy. To a considerable extent the history is told in the words of government officials and representatives. Since the 19 century, Indian affairs administration has swung between progressive ideals and termination policy. The purpose of this review is to illuminate that history to inform those charged with developing an effective tribal trust administration system that is adapted to tribal sovereignty, self-determination and economic development of natural resources that the United States holds in trust for Indian tribes. In 1876, the year of the “encounter between the troops and Indians on the Little Big Horn,”6 Congress directed President Grant to appoint commissioners to meet with the Sioux Indians. Their mission: Have the Sioux: (1) abandon all claims to land that lay outside their 1868 treaty boundaries; (2) relinquish land within those boundaries, particularly the Black Hills; (3) grant non-Indian right of passage over their retained lands; (4) accept delivery of all supplies from the government at points on their remaining reservation identified by the President; and (5) make further agreements with the government that would lead “the Indians to become self-supporting.”7 The Commissioner of Indian Affairs advised the Commission that: [T]he President is strongly impressed with the belief that the agreement which shall be best calculated to enable the Indians to become self-supporting is one which will provide for their removal, at as early a day as possible, to the Indian Territory, and that the solution of the difficulties which now surround the “Sioux problem” can best be reached by such removal.8 Removal, of course, would moot the first four items. The Sioux Commission's charge to reduce or eliminate the Indians'—and the government's—relationship to their land and resources has long been a staple of Indian policy. The commissioners completed the Report within months of the Little Big Horn battle. Its candor about the government's role in the “Sioux problem” is striking.9 The Report mentioned, but did not dwell on, the emotional impact of the Army's defeat and loss of life; rather, it called the military campaign that led to the Little Big Horn battle a “useless,” “dishonorable” and “disgraceful” policy.10 The Report examined evidence of the breach between the words and deeds of the federal government in the conduct of Indian affairs. It contrasted the government's breach 6. 1876 Annual Report, supra note 1, at 23. 7. Id. at 333. 8. Id. 9. Id. 10. The Report of the Sioux Commission states: Of the results of this year's war we have no wish to speak. It is a heart-rending record of the slaughter of many of the bravest of our Army. It has not only carried desolation and woe to hundreds of our own hearthstones, but has added to the cup of anguish which we have pressed to the lips of the Indian. We fear that when others shall examine it in the light of history, they will repeat the words of the officers who penned the report of 1868: The results of the year's campaign satisfied all reasonable men that the war was useless and expensive . . . it was dishonorable to the nation and disgraceful to those who originated it. Id. at 342-43 (internal quotations omitted). 2 Tulsa Law Review, Vol. 50 [2014], Iss. 1, Art. 7 http://digitalcommons.law.utulsa.edu/tlr/vol50/iss1/7 2014] A BRIEF HISTORY OF INDIAN TRUST ADMINISTRATION REFORM 229 of faith and promise to the Indian tribes with the Indian tribes' integrity in fulfilling the treaty commitments they had made to the United States. The commissioners showed remarkable courage in this self-criticism. They took the blame. A Major-General of the Army told Sioux Commission reporters that he was “ashamed longer to appear in the presence of the chiefs of the different tribes of the Sioux, who inquire why we do not do as we promised, and in their vigorous language aver that we have lied.”11 The Report continues, “Sitting Bull, who had refused to come under treaty relations with the Government, based his refusal in these words . . . 'Whenever you have found a white man who will tell the truth, you may return, and I shall be glad to see you.'”12 Sitting Bull captured in a sentence the breach of law and nature that brought such grief to Indian people. More than a century before Sitting Bull spoke those words, Emer de Vattel wrote in The Law of Nations13: It is a settled point in natural law, that he who has made a promise to any one has conferred upon him a real right to require the thing promised,— and, consequently, that the breach of a perfect promise is a violation of another person's right, and as evidently an act of injustice as it would be to rob a man of his property. The tranquility, the happiness, the security of the human race, wholly depend on justice,—on the obligation of paying a regard to the rights of others. The respect which others pay to our rights of domain and property constitutes the security of our actual possessions; the faith of promises is our security for things that cannot be delivered or executed upon the spot. There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises. This obligation is, then, as necessary as it is natural and indubitable, between nations that live together in a state of nature, and acknowledge no superior upon earth, to maintain order and peace in their society. Nations, therefore, and their conductors, ought inviolably to observe their promises and their treaties. The framers of the U.S. Constitution knew The Law of Nations well, and it has guided the Supreme Court's review of constitutional questions.15 Nonetheless, The Law of Nations was not a good fit with manifest destiny. Politically, morally, culturally, legally, and philosophically, America had all the tools and rationalizations it needed to remove the human blocks to her manifest destiny. In his first annual message to Congress 11. 1876 Annual Report, supra note 1, at 341. 12. Id. 13. EMER DE VATTEL, THE LAW OF NATIONS, OR PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS (Joseph Chitty trans., T. & J.W. Johnson & Co. Law Booksellers 1861) (1758) [hereinafter THE LAW OF NATIONS]. 14. Id. at 195-96. 15. “In 1775, Benjamin Franklin acknowledged receipt of three copies of a new edition, in French, of Vattel's Law of Nations and remarked that the book 'has been continually in the hands of the members of our Congress now sitting . . . .'” U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 462 n.12 (1978). 3 Membrino: A Brief History of Indian Trust Administration Reform: Will the P Published by TU Law Digital Commons, 2014 230 TULSA LAW REVIEW [Vol. 50:227 in 1817, President James Monroe said: “The earth was given to mankind to support the greatest numbers of which it is capable, and no tribe or people have a right to withhold from the wants of others more than is necessary for their own support and comfort.” The frontiersmen had sounded this theme for two centuries, and Monroe, in the tradition of Jefferson, was not remiss in sounding it again for the nineteenth century. The period of greatest westward expansion, 1815 to 1860, saw 260 treaties signed. Two hundred and thirty of all the treaties between 1789 and 1868 involved Indian lands, 76 called for removal and resettlement, and near |
| Starting Page | 227 |
| Ending Page | 242 |
| Page Count | 16 |
| File Format | PDF HTM / HTML |
| Volume Number | 50 |
| Alternate Webpage(s) | https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2913&context=tlr&httpsredir=1&referer= |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
