Guest Post from Daniel Rey-Bear: Split Briefing in Indian Trust Cases

Among other things, President Nixon’s Special Message to Congress on Indian Affairs recognized that the federal government acts “as a legal trustee . . . for American Indians” and that the Executive Branch has difficulty fulfilling that high duty regarding land and water rights because of “an inherent conflict of interest” of the sort addressed 13 years later in Nevada v. United States, 463 U.S. 110 (1983).  President Richard M. Nixon, Special Message on Indian Affairs, 1970 Pub. Papers 564, 573 (July 8, 1970) (“Nixon Message”).  President Nixon thus proposed the legislative establishment of an Indian Trust Counsel Authority to address these concerns.  Id. at 573-74; Richard Nixon, Recommendations for Indian Policy, H.R. Doc. No. 91-363, at 9-10 (1970). Notably, President Nixon did not recognize any conflicts of interest regarding Indian trust fund management.

Legislation was considered to address the conflict of interest concern about natural resources held in trust, but was not enacted.  E.g., S. 2035 (1971); S. 1012 (1973); S. 1339 (1973).  The Executive Branch in the early 1970s therefore sought to address this concern even without legislation by filing what became known as “split briefs,” wherein the Department of the Interior argued its position in a case on behalf of Indians separate from the Justice Department’s view against Indians. This was done six times and each time the DOI position prevailed.  See Federal Government’s Relationship with American Indians, S. Hrg. No. 101-126, Pt. 1, at 41-43, 50, 53, 66-67, 458-60 (1989) (“1989 Hearing Report”) (discussing Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976); United States v. Winnebago Tribe, 542 F.2d 1002 (8th Cir. 1976); United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974); Stevens v. Comm’r, 452 F.2d 741 (9th Cir. 1972); Confederated Tribes of the Umatilla Indian Reservation v. Alexander, 440 F. Supp. 553 (D. Ore. 1977)); Trust Counsel for Indian Affairs in the Dep’t of the Interior, S. Hrg. No. 101-1011, at 58-63 (1990) (“1990 Hearing Report”) (correspondence documenting the split brief practice and also discussing Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) as an additional example).  However, in Critzer, the court chided DOJ for what seemed to be the executive’s inability to speak with one voice.  DOJ thus sought to end the practice, but DOI persisted.  Finally, in 1979, Attorney General Griffin Bell ended this practice, so that there would be “a single position of the United States” in Indian trust resource litigation. Letter from Griffin B. Bell, Attorney General, to Ceil D. Andrus, Secretary of the Interior 4 (May 31, 1979) (“Bell Letter”).

Note that the Bell Letter was relied on substantially by the Executive Branch in the Jicarilla case before the Supreme Court to support its assertion that the US does not act as a trustee or consider Indian tribes to be its clients regarding trust asset management.  In our amicus brief before the Supreme Court, we documented how that letter does not support those assertions, which are further undercut by a November 21, 1978 letter from Solicitor Krulitz of the Department of the Interior, to which the Bell Letter apparently responded. Notwithstanding the Bell Letter, the 2000 DOI Secretarial Order on principles for the discharge of DOI’s trust responsibilities specifically noted that “[t]he most comprehensive document available on this subject is a letter by Solicitor Krulitz dated November 21, 1978, analyzing the federal government’s responsibility concerning Indian property interests.”  DOI, Sec. Order No. 3215 sec. 2 (April 28, 2000).

Congress continued to consider legislation to enact President Nixon’s proposal–see, e.g., S. 2451 (1990)–but no such legislation was enacted, perhaps because the Executive Branch viewed the proposal as a means by which it “would simply be relieved of any trust responsibility[.]”  1990 Hearing Report at 10 (statement by Sen. McCain); see Hearings on S. > 2035, a Bill to Provide for Creation of the Indian Trust Counsel Authority, 92nd Cong., 1st Sess. (Nov. 22-23, 1971), at 12 (Deputy Attorney General letter). In the end, the Executive Branch shared the goal “to ensure that every policy decision of the Interior and other Federal agencies and bureaus with an impact on the trust obligation of this Government has fully measured that decision in respect to carrying out its trust obligation[,]” but the Executive Branch specifically opposed the legislation as “not . . . necessary to accomplish this goal[,]” and instead explored “accomplishing and institutionalizing this goal” within the DOI. Id. at 11, 12, 65 (testimony by Assistant Secretary for Indian Affairs).  For further information about these matters, please see the excerpt from the 1989 Hearing Report (here).