The Federal government's trust responsibility towards Indian lands and resources is multi-faceted.⁽¹⁾ The trust doctrine's role in defining tribes' claims against the United States for taking or badly managing tribal lands has been the focus of much discussion.⁽²⁾ The trust doctrine also figures in defining the United States' duties with respect to minerals development on tribal or individual Indian lands and, consequently, may define the rights of resource developers under Indian lands leases, minerals agreements, or rights-of-way.⁽³⁾ Considerations of the United States' trust duties towards Indians or their lands may arise at the point of leasing or contracting, in the administration by the Bureau of Indian Affairs ("BIA") of activities under approved agreements, and in courts' resolutions of disputes regarding the lands of tribes or individual Indians.

The nature and rigor of the duties the trust doctrine imposes on the Unites States, consequently, may affect resource development and environmental protection in Indian Country. The requirement of valid approval by the Secretary of the Interior or his authorized delegate ("the Secretary") of leases, rights-of-way, or contracts relative to tribal land leaves the validity of some agreements dependent upon the Secretary's compliance with trust duties.⁽⁴⁾ Additionally, courts may refer to trust concepts to define the Secretary's duties in administering leases or rights-of-way.⁽⁵⁾ However, while potentially a sword to advance tribal rights, the trust doctrine also may serve as a shield to protect resources developers' interests under tribal agreements.⁽⁶⁾

These trust notions are built upon venerable foundations. Chief Justice John Marshall's early opinion in Cherokee Nation v. Georgia is bedrock: describing tribes as "domestic dependent nations," Justice Marshall characterized tribes as weak and unsophisticated, reliant upon the protection of the United States:

They occupy a territory to which we assert a title independent of their will, . . . meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.⁽⁷⁾

Marshall's premise, that tribes need federal protection of their lands and resources, continues to animate contemporary trust doctrine opinions.

But, while no generalization about tribes will hold, things are changing. While the United States continues to supervise leasing and contracting under federal statutes, tribes increasingly rely on their own scrutiny of proposed transaction, employing skilled legal counsel and experienced minerals advisors. In more and more situations, the BIA's role is being transformed from that of a guardian protecting an incompetent ward to that of an agency responsible for compliance with federal environmental and cultural resource-protective status.⁽⁸⁾ This change has been heralded as a new era of tribal self-determination, marked by enactment of the Indian Self-Determination Act of 1975.⁽⁹⁾ The BIA's role, never very effective in ensuring reasonable compensation for Indian resources, now may actually depress their values, as the attendant red tape and delay handicap tribal efforts to compete with off-reservation lands for development opportunities.⁽¹⁰⁾

Beyond the transactional realm, tribes increasingly seek to regulate conduct occurring on tribal lands and for their courts to decide the controversies arising there.⁽¹¹⁾ In some arenas, federal agencies are delegating regulatory primacy⁽¹²⁾ or program implementation⁽¹³⁾ to tribes or their agencies. Increasingly, tribes' abilities to enhance tribal well-being will depend upon their abilities to compete effectively in affording opportunities for economic development, rather than upon the level of federal support or the rigor of federal supervision. The BIA already is responding to the fact that some tribes' business acumen has elevated their economic positions to levels surpassing those of off-reservation neighbors.⁽¹⁴⁾

Increasingly, the premise of dependency underlying the trust doctrine may not comport with contemporary realities. This Paper seeks to analyze the implications of the trust doctrine in the contemporary era for Indian mineral owners, federal regulators, and private developers. It will trace the historical origins of the doctrine,⁽¹⁵⁾ describe the settings in which the doctrine comes into play in contemporary resource transactions and disputes,⁽¹⁶⁾ and analyze the duties and standards of care the trust doctrine imposes upon the federal trustee.⁽¹⁷⁾ Finally, it will discuss current issues under the trust doctrine; it will suggest ideas for accommodating tribal self-determination in application of the trust doctrine, taking as examples, NEPA and the Endangered Species Act,⁽¹⁸⁾ and the implications for an evolving trust doctrine of developing tribal expertise and tribal efforts toward primacy in contracting, regulation, and dispute resolution.⁽¹⁹⁾

I. A RELATIONSHIP "UNLIKE THAT OF ANY OTHER TWO PEOPLE IN EXISTENCE"⁽²⁰⁾: A BRIEF HISTORY OF THE TRUST DOCTRINE.

The trust relationship that Chief Justice Marshall originally described has several unique characteristics. Two central features were a federal power to control tribal and individual Indians' transactions regarding their lands and the responsibility to exercise a protective supervision over transactions and activities related to tribal lands in the tribes' interest. The origins of those powers and duties are discussed in this portion of the Paper.

A. Federal Power Over Alienation of Tribal Lands

Early decisions held the United States to have overriding powers over tribal lands. In Johnson v. McIntosh,⁽²¹⁾ the Court reviewed international law cases involving the powers of colonizing European powers over "conquered" Indian-inhabited lands. Chief Justice Marshall's descriptions both of the Indians and the power of the United States reflect much upon the origins of the trust doctrine:

The ceded territory was occupied by numerous and war-like tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.⁽²²⁾

As Marshall conceived it, the doctrine allowed the United States to divest tribes of their lands, to enter into treaties with them regarding their remaining lands, and to control tribes' alienation of lands to others. Put simply, "conquest gives a title which the courts of the conqueror cannot deny . . .".⁽²³⁾

Marshall's rationale for subjecting all tribal lands to federal control was premised in large measure on generalizations about the "character and habits" of the Indians. Under international law, the "general rule," applicable in the conquest of one nation by another, was that "the new and old members of the society mingle with each other . . ., and the rights of the conquered to property should remain unimpaired . . .".⁽²⁴⁾ Marshall found that rule, however, unworkable with respect to the American Indians:

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence.⁽²⁵⁾

Consequently, control of the soil by the conquering European power was necessary to settlement, and, as a result, "[t]he absolute ultimate title has been considered acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring."⁽²⁶⁾ Marshall's notion that discovery and conquest qualified tribes' rights in their lands came to be known as the "discovery doctrine." It is significant to a contemporary analysis of the trust doctrine that Chief Justice Marshall grounded his defense of subjecting Indian tribes to a harsher rule than that applicable to other conquered peoples on notions that Indians simply were different: "those principles which Europeans have applied to Indian title, . . . find some excuse, if not justification, in the character and habits of the people whose rights have been rested from them."⁽²⁷⁾ It was not merely the act of discovery or conquest, but also the purported nature of the American Indian that subjected tribal lands to colonial and, subsequently, federal powers.

Whatever the source, Marshall's concept of Indian title subject to federal hegemony stands as a central precept of federal Indian law. It already had been reflected in the Indian Trade and Intercourse Acts ("the Non-Intercourse Acts") beginning in 1793,⁽²⁸⁾ and was later made permanent in 1802 and 1834.⁽²⁹⁾ The Non-Intercourse Acts provided that no transfer of interests in lands from any Indian nation or tribe "shall be of any validity in law or equity" unless properly approved by appropriate federal action. The appropriate federal action initially was a "treaty or convention entered into pursuant to the Constitution."⁽³⁰⁾ However, after 1871, when Congress terminated the power to make treaties with tribes,⁽³¹⁾ tribal land transactions were authorized by specific statutes authorizing specific transactions or classes of transactions.⁽³²⁾ Consequently, the validity of a resource development agreement requires that it be authorized by statute and approved by an authorized Interior Department official.⁽³³⁾

To secure a valid Secretarial approval, the agreement must be authorized by statute, and the procedures leading to its issuance must have complied with statutory requirements.⁽³⁴⁾ And, the required statutory compliance may extend beyond those crafted specifically for Indian lands to NEPA⁽³⁵⁾ and other generally applicable environmental, cultural resource, and species-protective statutes.⁽³⁶⁾ Consequently, one clear consequence of the trust doctrine is to subject tribes' intentions regarding their lands, and hence their powers of self-determination, to layers of review by federal agencies, public comment and participation, including citizens' suits⁽³⁷⁾, and ultimately the potential of a federal administrative or judicial veto.

B. Federal Trust Obligations Over Indian Lands

Concomitant with the prerequisite of federal approval of Indians' conveyances, Chief Justice Marshall developed the notion that the United States stands as guardian with respect to Indian lands. In Cherokee Nation v. Georgia,⁽³⁸⁾ Marshall rejected the Cherokee Nation's contention that it either was a state of the United States or a foreign state, holding that the Cherokees were not entitled to bring suit initially in the Supreme Court. In reaching that result, Marshall relied upon characterizations of tribes to justify his conclusion that "[t]he relation to the United States resembles that of a ward to its guardian."⁽³⁹⁾ Characterization of the trust relationship as one "between a superior and an inferior, whereby the latter is placed under the care and control of the former . . .",⁽⁴⁰⁾ resounds through subsequent Supreme Court opinions. Whether the doctrine was grounded in an appropriate degree of protection for unsophisticated tribes or an "undisguised contempt for native culture . . .,"⁽⁴¹⁾ it reflected a perceived need to protect tribes and Indians for their own benefit.

The need for federal protection of tribes was heightened, not reduced, by federal Indian policies. In the early 1800's, during what has been described as a "removal" period, the United States negotiated, often against a backdrop of military compulsion, to induce tribes to relinquish their original territories and accept new or reduced lands in exchange for federal subsidies and promises of protection of their remaining lands.⁽⁴²⁾ In the late 1800's, during the "allotment era", federal Indian policy shifted toward breaking up the reservations and "allotting" lands to individual Indians, accompanied by additional federal assistance to the allotted Indians, all aimed toward integrating them into white society.⁽⁴³⁾ The General Allotment Act of 1887 had the most significant effect in this regard.⁽⁴⁴⁾ Among other effects, its rapid implementation found some individual Indians unable to make effective use of the 160-acre parcels "allotted" to them, leading to the widespread leasing of allotted lands.⁽⁴⁵⁾ This history is reflected in the Supreme Court's observation in Kagama that "[f]rom their very weakness and helplessness, so largely due to the course of dealings of the Federal Government with them and treaties in which it has been promised, their arises the duty of protection . . .".⁽⁴⁶⁾ Used to justify federal divestiture of tribal lands and intrusions upon tribal governments, guardianship became a source of federal power over tribes and their lands.⁽⁴⁷⁾

Supreme Court cases during the allotment era explored the dark side of the trust relationship. In Lone Wolf v. Hitchcock,⁽⁴⁸⁾ the Court relied upon the trust relationship in holding that Congress could unilaterally take lands in abrogation of a treaty, without complying with a treaty requirement that required the signatures of three-fourths of the adult males for sessions of the treaty-secured land. Viewing the trust doctrine in light of Kagama and the 1871 statute empowering Congress to govern Indians by statute, the Court held that: "plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of government."⁽⁴⁹⁾ The Court has repeatedly invoked the plenary power doctrine to uphold congressional actions involving Indians.⁽⁵⁰⁾

The twentieth century has seen the Court back away from the harshest elements of its allotment era cases and begin to define the contours of a legally enforceable federal trust obligation with respect to Indian land.⁽⁵¹⁾ Subsequent cases have qualified, but not eliminated, the plenary power doctrine. The Court no longer writes in the overtly ethnocentric terms of Kagama and Lone Wolf, and it has stepped away from the plenary power concept that congressional action towards tribes is a political question, immune from judicial review. The Court has recognized that the trust doctrine imposes duties on the United States with respect to tribal lands and a cause of action for damages for taking lands in breach of the duty.⁽⁵²⁾

In cases defining the government's duties to manage Indian lands, the trust obligation has obtained its fullest, modern delineation. In the Mitchell cases, allottees sought damages for breach of trust arising from the United States' mismanagement of their trust timber resources. In Mitchell I, the Court held that the General Allottment Act did not support an action for breach of trust, because it created only a "limited trust relationship" that fell short of "establishing that the United States has a fiduciary responsibility for management of allotted forest lands."⁽⁵³⁾ Three years later, in Mitchell II, the Supreme Court reviewed the statutes and regulations governing BIA sales and management of Indian timber and concluded that they "clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. Hence, the timber statutes and regulations established a fiduciary relationship and defined the contours of the United States' fiduciary responsibilities."⁽⁵⁴⁾

Consequently, Mitchell II held the United States liable in money damages for breach of trust. Under the Mitchell cases, specifically enforceable fiduciary obligations arise from a regulatory scheme that imposes comprehensive management responsibility on the United States with respect to defined trust assets. Such duties do not ordinarily arise either from the general trust relationship or from statutes, like the General Allotment Act, generally subjecting tribal lands to federal supervision and management.

This overview reflects that the trust doctrine has been both a blessing and a curse for tribes and individual Indians. While it has prevented alienation of tribal lands, supplied tribes with certain administrative support, and provides claims for money damage, it also has supplied the premise supporting federal divestiture of tribal lands and powers. The following portions of the Paper analyze its specific impact on resource transactions.

II. THE TRUST DOCTRINE IN CONTEMPORARY RESOURCE DEVELOPMENT

Contemporaneously with Justice Marshall's seminal opinions, Henry Clay observed the breadth of government trust obligation: "Government is a trust, and the officers of the government are trustees."⁽⁵⁵⁾ While not addressed to tribal lands, this statement underscores that the conclusion that there is a trust relationship between the United States and tribes is only a starting point. The significance of the trust concept for Indian lands and resources lies in the federal duties that arise from the trust relationship, tribes' rights to enforce those duties, and the impact of the two on resource developers. This portion of the Paper explores the standards of care trust duties impose upon the federal government, both where a specific statutory scheme imposes fiduciary-like duties under Mitchell II, and where only general or "limited" trust duties apply. It analyzes canons of statutory interpretation that are closely linked to the trust doctrine, the application of which affect trust duties and private rights.

A. Trust Duties Under Leasing and Contracting Statutes

Mitchell II held the United States subject to fiduciary duties with respect to tribal timber based on the comprehensive statutory scheme, implemented by BIA regulations, for the sale of timber on allotted lands held in trust for individual Indians.⁽⁵⁶⁾ Tribal energy and mineral resources are leased⁽⁵⁷⁾ and subjected to minerals agreements⁽⁵⁸⁾ under a variety of statutes. Allotted lands are subject to mineral leasing,⁽⁵⁹⁾ but may only be included in minerals agreements under the IMDA when part of a larger agreement covering tribal lands.⁽⁶⁰⁾ As Judith Royster has developed with considerable care,⁽⁶¹⁾ the nature and scope of the trust obligation with regard to mineral development is fairly well established for mineral leases under the IMLA, but it is less well defined under the IMDA.

1. The Trust Responsibility under the Indian Mineral Leasing Act

The Supreme Court has described the IMLA as:

comprehensive legislation [enacted] in an effort to "obtain uniformity so far as practicable of the law relating to the leasing of tribal land for mining purposes. . .." The Act also details uniform leasing procedures designed to protect the Indians.⁽⁶²⁾

In several cases, federal courts have held the IMLA to constitute the comprehensive, Indian-protective kind of statute described by Mitchell II.⁽⁶³⁾ The federal courts have interpreted the IMLA and the regulations promulgated under it⁽⁶⁴⁾ as imposing fiduciary duties on the Secretary and requiring the Secretary to act "in the best interest of the interests of the tribes."⁽⁶⁵⁾ Judge Seymour's dissenting opinion in Jicarilla v. Supron, adopted by the en banc Tenth Circuit, concluded the IMLA intends tribes to "receive the maximum benefit from mineral deposits on their land. . . ."⁽⁶⁶⁾ Although the IMLA contains no statutory reference to "maximization" or its equivalent, Jicarilla v. Supron remains influential.

Jicarilla v. Supron has caused developers considerable concern because the Interior Department had, for over 30 years, accepted royalties in the concededly reasonable manner the decision invalidated. Consequently, the decision raises the spectre that a lessee never may be confident that its actions or payments will be deemed to comply with leases or regulations if some other interpretation, also reasonable and subsequently conceived, would be more favorable to tribes. Jicarilla v. Supron's uncompromising standard has been incorporated in the 25 C.F.R. Pt. 211 regulations governing IMLA leases.⁽⁶⁷⁾ And, subsequent cases have applied the "maximization" concept to decisions whether to approve a communitization agreement that would extend the term of an Indian oil and gas lease,⁽⁶⁸⁾ and to determine whether to approve a proposed lease.⁽⁶⁹⁾ Consequently, the application of Jicarilla v. Supron is material to the levelness of the playing field in Indian resource development.

Decisions under the IMLA since Jicarilla v. Supron suggest the contours of workable standards. A series of decisions arose in the Tenth Circuit that test whether the Secretary is required to seek only maximization of tribal revenue, without regard to the interests of other parties to IMLA leases. Near the end of the primary terms of Indian oil and gas leases, the lessees completed wells in lands "communitized" with Indian lands under IMLA leases. If the Secretary approved the communitization agreements, the Indian lands lease would be held by the production from the adjacent non-Indian lands; if the Secretary disapproved the communitization, the Indian leases would expire for lack of production and the Indian lessors could seek new leases for new consideration. In early cases, relying on Jicarilla v. Supron, the Tenth Circuit held the maximization of revenue objective could require the BIA to disapprove communitization.⁽⁷⁰⁾

The Woods Petroleum decisions reversed that trend. In Woods Petroleum I, the Tenth Circuit held that the Secretary abused his discretion by disapproving a communitization agreement that included lands under a tribal lease, when the sole purpose of disapproval was to allow the underlying Indian lease to terminate to allow the Indian mineral owners to re-lease the lands for additional consideration.⁽⁷¹⁾ In Woods Petroleum II, the en banc majority of the Tenth Circuit reaffirmed the panel decision in Woods Petroleum I, again narrowing the focus of Jicarilla v. Supron's revenue maximization goal: "The issue before the Secretary is whether the communitization agreement should be approved, and it is not whether the underlying leases, which previously had been approved by the Secretary were a good deal or bad deal with the benefit of hindsight. . . ."⁽⁷²⁾ The Secretary was required to evaluate all applicable criteria under the statute and could not "use that evaluation as a mere vehicle to achieve an ulterior objective otherwise unattainable."⁽⁷³⁾ The Tenth Circuit found dispositive that the lessee had drilled and completed the well and submitted the communitization agreement within the ten year primary term of the leases, rejecting the notion that Woods Petroleum should be penalized for waiting "until the eleventh hour" to submit its communitization agreement.⁽⁷⁴⁾ This interpretation accords the lessee the full rights bargained for under the lease. The Woods Petroleum cases are significant IMLA precedent ameliorating the potential of the revenue maximization goal of Jicarilla v. Supron to yield decisions favoring tribes in all cases. And, the Tenth Circuit has characterized the Woods Petroleum line of cases as establishing that "judicial review of the Secretary's decision is available under the APA."⁽⁷⁵⁾

Under IMLA leases, the Secretary has fiduciary duties to tribal lessors that impose a high standard of care. The challenge for the Secretary is to give meaning to that standard in a way that is fair to developers and does not inhibit Indian lands development.⁽⁷⁶⁾

2. The Trust Responsibility under the Indian Minerals Development Act

Tribal self-determination was injected into Indian mineral development by the Indian Mineral Development Act of 1982.⁽⁷⁷⁾ The standard form mineral lease used under the IMLA depends upon competition within energy markets to secure appropriate compensation for tribes, specifying competitive bidding in public sales following appropriate notice to bidders.⁽⁷⁸⁾ Beginning in the 1970's, several tribes sought a more active role in minerals development, including participation in non-lease joint venture minerals agreements.⁽⁷⁹⁾ Between 1978 and 1980, The Interior Department approved several non-lease minerals agreements; however, the Solicitor's office then developed concerns over the enforceability of such agreements under existing statutes.⁽⁸⁰⁾The IMDA was enacted to "clarify that statutory authority existed for such agreement and to authorize tribes to join with industry as mineral developers and choose which development schemes to pursue."⁽⁸¹⁾ Since enactment of the IMDA, and especially since BIA's long-delayed promulgation of regulations implementing the Act,⁽⁸²⁾ tribes have taken a larger and more active role in the development of tribal minerals.⁽⁸³⁾ The IMDA's allowance of an enhanced tribal role and greater flexibility have led to an "infinite variation in terms."⁽⁸⁴⁾ Agreements under the IMDA have become the rule, rather than the exception.

Although the IMDA injected self-determination into the minerals contracting process, it retained significant vestiges of IMLA leasing. IMDA agreements remain unenforceable without valid Secretarial approval.⁽⁸⁵⁾ The Indian mineral owner is "encouraged" to seek advice or assistance from the Secretary before signing an IMDA agreement; however, no consultation is required.⁽⁸⁶⁾ The Secretary is required to approved the minerals agreement if it is "in the best interests of the Indian mineral owner," complies with the IMDA regulations and applicable law, and "does not have adverse cultural, social, or environmental impacts sufficient to outweigh its expected benefits to the mineral Indian owners. . . ."⁽⁸⁷⁾ The Secretary is required to prepare an economic assessment and environmental studies to guide these determinations.⁽⁸⁸⁾ As under an IMLA lease, the Secretary continues to monitor and supervise operations and the payment of compensation under the minerals agreement.⁽⁸⁹⁾

The IMDA speaks directly to the trust responsibility. First, it addresses liability of the Secretary. Where the Secretary approves an agreement in compliance with the IMDA and other laws, "the United States shall not be liable for losses sustained by a tribe. . . ."⁽⁹⁰⁾ The legislative history does not provide clear guidance on the meaning of this provision. The Administration sought to impose on tribes the risk of improvident transactions.⁽⁹¹⁾ The House Report then states, on the one hand, that "the United States shall not be liable for any losses. . . as a result of market changes or business decisions of the parties on carrying out the agreement."⁽⁹²⁾ However, it also states that the Administration's proposal was adopted by the Committee and "simply restates" law that the United States is liable only when the Secretary acts "recklessly and in abuse of his discretion as trustee."⁽⁹³⁾ Finally, the IMDA refers specifically to the Secretary's trust responsibilities, but only regarding supervision of operations: "the Secretary shall continue to have a trust obligation to insure that the rights of a tribe or individual are protected in the event of a violation of the terms of any Minerals Agreement. . . ."⁽⁹⁴⁾ One interpretation of these provisions would hold the United States subject to trust duties only regarding post-contracting supervision of operations. However, since the Secretary has duties preparatory to approval of the minerals agreement, there is a possibility that IMDA agreements are subject to a Jicarilla v. Supron-like trust obligation at all stages.

The IMDA also addresses compliance with the National Environmental Policy Act.⁽⁹⁵⁾ During the IMDA hearings, the representative of the Council of Energy Resource Tribes argued that prolonged delays arising from NEPA reviews "could jeopardize a tribe's opportunity to enter into a favorable development agreement."⁽⁹⁶⁾ CERT's proposal reflects the economic reality that some minerals development projects require a prompt commitment of reserves, and that the delays attendant to NEPA study could give private off-reservation lands a competitive advantage over tribal lands. The IMDA, as enacted, did not adopt CERT's proposal that the Act require Interior to complete its economic review and give approval of the transaction subject to completion of NEPA review, within 60-90 days. Instead, it (1) requires an agreement to be approved within 180 days after submission or within 60 days after completion of NEPA studies, whichever is later,⁽⁹⁷⁾ and (2) provides that the Secretary shall not be required to prepare any study regarding environmental, socioeconomic, or cultural effects "apart from that which may be required under [NEPA]".⁽⁹⁸⁾

The IMDA provisions regarding NEPA studies reflect Congressional intent to minimize the adverse effects on the competitiveness of Indian lands arising from studies attendant to Secretarial approval, but not to exempt IMDA approvals from NEPA. The IMDA does not refer expressly to studies under the Endangered Species Act or cultural resource protective statutes like the National Historic Preservation Act, however, the IMDA regulations incorporate references to these.⁽⁹⁹⁾ Since ESA and NHPA review often occur as part of NEPA studies, the statute may accommodate the additional review under those statutes. The quoted language of the IMDA may present an issue, however, whether the substantive effect of ESA still can require rejection of an IMDA agreement.

The IMDA steps only partially in the direction of self-determination. While tribes may initiate and conclude negotiations, Secretarial approval remains required, and tribes' minerals development efforts remain subject to the public participation processes and potential challenges arising from the environmental compliance required under the IMDA. The conclusion that Congress intended trust obligations to apply⁽¹⁰⁰⁾ appears sound; however, the Secretary's role in the contracting process is reduced, and the Act recognizes a tribal interest in structuring and implementing tribal goals at tribal direction. To this point, the courts have only begun to address the tension between the IMDA's shift toward tribal self-determination and traditional trust doctrine.⁽¹⁰¹⁾

B. The Search for Standards

As the foregoing discussion reflects, the broad formulations the courts have used to define the standard of care required of the Secretary under the trust doctrine raise as many questions as they answer. "The best interests of the Indians," "fiduciary duties," and even "maximizing tribal revenues" only frame the broadest contours of the discussion. They do not address the balance between short-term and long-term tribal interests or that between tribal interests and legitimate, investment-backed expectations of developers. The applicable statutes remain the first and, where applicable, dispositive source of guidance.

The cases do suggest, however, additional guideposts. Several cases refer to guardianship concepts, referencing a relationship between guardian and ward.⁽¹⁰²⁾ Seminole Nation v. United States,⁽¹⁰³⁾ while holding the United States subject to "the most exacting fiduciary standards . . .," referred to principles of private trust law to define trust duties.⁽¹⁰⁴⁾ Consequently, where the United States has a statutorily imposed fiduciary duty under Mitchell II, that duty may be defined by private trust concepts, if not modified by statute.⁽¹⁰⁵⁾ For example, when the government has a statutory duty to represent both tribes and other federal interests in water litigation, "it is simply unrealistic to suggest that the Government may not perform its obligation to represent Indian tribes in litigation when congress has obliged it to represent other interests as well. In this regard, the Government cannot follow the fastidious standards of a private fiduciary . . .."⁽¹⁰⁶⁾

General trust law affords some guidance on the issues described above. Significantly, a conceptual question arises immediately upon addressing the fundamental principle of trust law that the duties of trustees are to be determined by the expressed intent of the settlor in the terms of the trust.⁽¹⁰⁷⁾ The conceptual difficulty arises from determining who established the trust and for what purpose. Justice Marshall's opinions suggest the guardianship or trust was one imposed upon tribes by the act of colonization, or by the creation of reservations. However, some treaty language suggests that tribes agreed to, and thus assisted in defining the terms of, the trust in treaties or in giving their consent to statutes establishing reservations. In either event, the basic trust law exercise of interpreting the "manifestations of intentions of the settlor with respect to the trust . . ."⁽¹⁰⁸⁾ may pose difficult questions.

Trust laws' reliance upon the settlor's expression of intent to define the terms of the trust may explain the different standards of care the courts have held applicable to different classes of lands. Where Congress has enacted a statute of general applicability that applies to Indian lands, in addition to non-Indian lands, courts generally have deemed the trust responsibility to require compliance with the applicable statute and its regulations.⁽¹⁰⁹⁾ Federal agencies have reached similar conclusions.⁽¹¹⁰⁾ In these cases, because the statute neither calls tribal lands out for special protection, nor imposes special duties relative to tribal lands, compliance with generally applicable statutes and regulations satisfies the terms of any trust.

Cases addressing the application of statutes of general applicability to tribes and Indians figure in the determination of such cases.⁽¹¹¹⁾ Although the cases are not easily harmonized, courts generally apply such statutes to tribes and Indians unless Congress has indicated a contrary intent.⁽¹¹²⁾ The Supreme Court recently has reaffirmed that courts may infer such an intent from statutory silence regarding Indian lands.⁽¹¹³⁾ The trust doctrine figures most prominently when application of the general statute would infringe upon treaty-protected resources.⁽¹¹⁴⁾

The second level of trust responsibility arises with respect to federal actions regarding lands or resources held in trust, but where no comprehensive statutory scheme delineates the management responsibilities of the United States. Mitchell I found the General Allotment Act to be such a statute.⁽¹¹⁵⁾ Professor Royster has described this trust as a "bare" or "limited trust."⁽¹¹⁶⁾ The Claims Court has referred to such statutes as establishing a "guardian-ward" relationship, as distinguished from the "more intensive" duties arising in a trustee-beneficiary relationship: the government duties are more limited.⁽¹¹⁷⁾ The "limited trust" give rises to remedies restricted to enforcement of the specific purposes of the trust relationship, generally focused upon the requirement of Secretarial approval of leases or permits enforceable by an administrative action for cancellation. This same principle has been held to support actions for cancellation of land conveyances made without compliance with the Non-Intercourse Acts.⁽¹¹⁸⁾

Professor Royster's third category of trust relationship is the "full fiduciary relationship" found in Mitchell II. As we have seen the full trust relationship arises from comprehensive federal management of tribal assets, including allotted forest resources and IMLA leases, pursuant to a comprehensive statutory and regulatory scheme.⁽¹¹⁹⁾ The full trust relationship has been found to allow remedies both against the United States for damages and has been applied in cases against private lessees to establish standards giving rise to damage claims for breach of lease.⁽¹²⁰⁾

While the remedies available to tribes and individual Indians arising from the three categories of trust may differ, a central principle appears to underlie them. The courts determine federal duties by interpreting and enforcing expressed congressional and administrative intent.⁽¹²¹⁾ The Claims Court has applied a similar, three-pronged analysis of trust duties, also based on statutory terms.⁽¹²²⁾

Courts' reliance upon the terms of applicable statutes to define trust duties highlights the significance of canons of construction applicable to interpretation of treaties and statutes.⁽¹²³⁾ A long line of Supreme Court decisions counsels that ambiguities in treaties or statutes generally be resolved in favor of Indians.⁽¹²⁴⁾ The canons of construction arose from early treaty negotiations, "where tribal bargaining power was limited and language barriers abounded."⁽¹²⁵⁾ Like any rule of construction, this rule is intended to divine the true intentions underlying a treaty, statute, or regulation.⁽¹²⁶⁾ Consequently, the rules do not invariably call for a decision favorable to Indians; for example, a longstanding administrative interpretation may require an ambiguity to be resolved consistently with that interpretation.⁽¹²⁷⁾ These canons of interpretation will have greatest impact in cases interpreting early treaties and statutes; their usefulness as a guide to determining the intentions underlying a self-determination era statute or regulation asserted to impose trust duty may be less weighty given tribes' active participation in contemporary legislative and regulatory processes.

C. The Balance of Fairness Under the Trust Doctrine: Reliance and Remedies

Non-Indian resources developers face risks under the trust doctrine. Decisions regarding cancellation of leases or minerals agreements likely will be made by the Secretary.⁽¹²⁸⁾ Alternatively, tribes or individual Indian minerals owners may seek cancellation in federal or tribal courts.⁽¹²⁹⁾ In such controversies, the Interior Department's conclusions regarding the scope of trust duties and applicable standards of care may be dispositive. Resource developers, already troubled by tribal immunity from suit, potential tribal court jurisdiction, and tribal regulation, may perceive the potential for one-sided trust duty interpretations and resulting remedies as further risks for Indian country resources development.

Reported cases reflect courts' interpretations of trust duties and applicable remedies that truly would be exceptional in private land circumstances. Jicarilla v. Supron is a prominent and influential example: a concededly reasonable determination of BIA lease terms and royalty accounting regulations, applied uniformedly for over thirty years, was set aside in favor of a recently conceived interpretation that the court found would "maximize" tribal revenues.⁽¹³⁰⁾ The Tenth Circuit's decision that the Secretary's accounting methods breached trust duties led not to a remedy of damages against the United States for breach of trust in the Court of Claims, although such a claim was pending at the time, but required lessees to account for royalties retroactively over a ten-plus year period and to pay additional royalties owed under that accounting. Consequently, the trust doctrine can give rise to remedies against private developers. The discussion below addresses remedial issues.

1. Cancellation of Leases or Minerals Agreement

"Cancellation is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case . . ."⁽¹³¹⁾ Although cancellation often has been sought in controversies over Indian mineral leases, lease cancellation does not appear to have been affirmed by any appellate court as a remedy for breach of trust-like duties under a mineral lease.⁽¹³²⁾ As Gray implies, mineral lease cancellation may be an appropriate remedy where a minerals lease is void ab initio.⁽¹³³⁾ However, the federal courts have been reluctant to order lease cancellation. First, cancellation is an equitable remedy, to be granted "in the discretion of the chancellor."⁽¹³⁴⁾ A person coming into a court of equity cannot demand cancellation as a matter of right, and cancellation generally will not be ordered unless the parties can be "put back in status quo . . . ."⁽¹³⁵⁾ Additionally, because cancellation is an equitable remedy, equitable defenses, including laches and unclean hands, are available to lessees, or mineral developers under mineral agreements, even when the party demanding cancellation is a tribe.⁽¹³⁶⁾ Consequently, cancellation has been treated as an extraordinary remedy, potentially available when a lease is void ab initio and the equities do not counsel in favor of a less drastic remedy.

The question that follows, then, is who is empowered to order lease cancellation. The IMLA and IMDA regulations specifically empower the Secretary to cancel under defined circumstances.⁽¹³⁷⁾ The Tenth Circuit has dismissed an action for cancellation of an allotted lands Indian oil and gas lease, because the allottee-lessor had not exhausted administrative remedies before the Secretary.⁽¹³⁸⁾ The Ninth Circuit addressed a similar issue in the context of a business lease of tribal lands.⁽¹³⁹⁾ Although the Interior Department regulation provided that either the Secretary or the tribe could cancel, the Ninth Circuit affirmed the Interior Board of Land Appeals' conclusion that only the Secretary could cancel. The Ninth Circuit's rationale, that limiting cancellation power to the Secretary would enhance the value of the lessee's interest in the lease and, hence the value of tribal business leases generally,⁽¹⁴⁰⁾ seems fully applicable to the mineral leasing context. These cases suggest that, for IMLA leases and IMDA agreements, cancellation is an administrative remedy available only in BIA administrative proceedings.

2. The Trust Responsibility Affecting Performance Under Minerals Development Agreement

We have seen that interpretations given the trust responsibility can affect the standard of care required of the United States. Jicarilla v. Supron relied on fiduciary concepts to conclude that the IMLA requires the Secretary to "maximize" tribal revenues.⁽¹⁴¹⁾ The Woods Petroleum cases, however, obligate the Secretary to consider all pertinent factors under the statute, not merely revenue maximization.⁽¹⁴²⁾ We have also seen that interests in providing lessees a reasonable measure of security against tribal cancellation may require that Secretarial power to cancel be exclusive.⁽¹⁴³⁾ These conclusions reflect considerations pertinent to applying trust concepts to establishing standards for mineral development.

Self-determination poses several concerns in this area. First, as tribes assume more active roles, they may assert more focused interest in specific aspects of development activities. Some tribes have sought to expand the role of tribal court to require tribal court resolution of disputes under tribal leases and rights-of-way.⁽¹⁴⁴⁾ Some tribes have become competitors with non-Indian businesses for development rights.⁽¹⁴⁵⁾ Other tribes have sought to force lease termination by opposing communitization of oil and gas leases. Royalty accounting disputes have led repeatedly to interpretations applying the trust doctrine.⁽¹⁴⁶⁾ In each of these areas uncritical adherence to a "revenue maximization" goal could severely undermine minerals developers' expectations and economics.

The question, then, is what alternative standards exist. First and foremost, careful and objective interpretation of statutes and regulations towards the goal of divining true congressional or administrative intent should be the lodestar. Under Mitchell II, statutes and regulations "define the contours of the United States' fiduciary responsibilities."⁽¹⁴⁷⁾ Interpreting trust duties requires recognition that statutes balance competing interests and a sensitive accommodation of Indian interests and other statutorily established national priorities.⁽¹⁴⁸⁾ However, trust concepts compatible with interpretations given Indian leasing statutes afford additional guidance. The requirement that the trustee determine the best interests of all beneficiaries would require officials to consider both short-term and long-term interests, not merely the wishes of current tribal officials. Numerous cases reflect this concept.⁽¹⁴⁹⁾ Trust principles require the trustee to deal impartially with all classes of beneficiaries: in a profit-sharing plan, for example, both those who would share in current distributions and those whose interests will accrue in future periods.⁽¹⁵⁰⁾ Yavapai-Prescott reflects the concept that the long-term interests of a tribe, and of tribes in general, counsel for rules that accord lessees stable and predictable rights.⁽¹⁵¹⁾ A focus on the interests of all parties identified under applicable statutes and on the long-term interests of tribes and Indian mineral lessors may prove to be a moderating influence.

III. RESOURCE DEVELOPMENT ISSUES UNDER THE TRUST DOCTRINE.

Self-determination raises new issues for application of the trust doctrine to procedures developed under the IMLA. NEPA and NHPA impose procedural requirements on Indian leasing and contracting, and ESA imposes both procedural and substantive requirements. The statutorily- required information gathering can inform tribes and developers about the potential impacts of a proposed development. However, it also can delay approval of a lease or minerals agreement, potentially for years. Finally, the substantive provisions of ESA or the delay attendant to completing NEPA studies or other NEPA-related impediments, such as citizens' suits to enforce the statute, may kill a project that a well-informed tribe wants. The issue presented is just how "public" a decision tribal resource development should be. This portion of the Paper will address how such federal statutes might be harmonized with tribal desires for optimal returns from tribal resource development.

A. Flexibility in Leasing and Contracting to Minimize Handicapping of Tribal Minerals

The Indian Mineral Development Act has eliminated many of the roadblocks to effective tribal leasing and contracting formerly imposed under the IMLA. Tribes are not limited to a standard form lease or to competitive bidding for oil and gas leases. They are free to adopt terms that reflect their own interests, and those of contracting parties. However, the IMDA process still subjects tribal lands to competitive disadvantages as compared with off-reservation lands. Most significantly, the IMDA requires compliance with NEPA before the Secretary may validly approve a minerals agreement, but specifies that no other environmental studies may be required.⁽¹⁵²⁾ As noted above, during the debates on the IMDA, The Council of Energy Resources Tribes argued in favor of creative measures to allow the essential economic terms of minerals agreements to receive Secretarial approval within sixty to ninety days, to allow tribes to realize opportunities that may not be available if Secretarial approval cannot be secured until NEPA compliance is completed.⁽¹⁵³⁾ Congress did not adopt CERT's proposal; however, BIA may have existing authority to make tribal lands competitive when minerals development requires prompt assurance that an agreement will be approved subject to NEPA compliance.

The IMDA expressly authorized approval to be conditioned only upon NEPA compliance. The statute does not mention the Endangered Species Act,⁽¹⁵⁴⁾ the National Historic Preservation Act⁽¹⁵⁵⁾, the Native American Graves Protection and Repatriation Act,⁽¹⁵⁶⁾ or the Archaeological Resources Protection Act⁽¹⁵⁷⁾ and the Archaeological and Historic Preservation Act.⁽¹⁵⁸⁾ However, the IMDA regulations specifically require that all "necessary surveys" are performed in accordance with AHPA, NHPA, the American Indian Religious Freedom Act,⁽¹⁵⁹⁾ and applicable regulations.⁽¹⁶⁰⁾ Although the IMDA regulations make no mention of ESA review, they do require that studies be prepared in compliance with the Council on Environmental Quality ("CEQ") regulations governing NEPA compliance,⁽¹⁶¹⁾ and the CEQ regulations require consideration of ESA factors in an agency's determination whether an action "significantly" affects the human environment.⁽¹⁶²⁾ In any event, study of a project area under these statutes usually is part and parcel of the NEPA compliance process. Generally, neither a finding of no significant impact ("FONSI"), nor a final environmental impact statement ("EIS") could be complete until ESA and cultural resource reviews are finished.⁽¹⁶³⁾ The courts have not addressed whether the IMDA limitation of environmental studies to those "required under [NEPA"] limits agencies' discretion to require studies or impose conditions under other statutes.

Given that NEPA's requirements are procedural, the primary direct consequence of NEPA compliance is delay. With respect to oil and gas development, the completion of NEPA review might extend from ninety days to a year or more; with respect to a coal lease, one to three years. During the entire period from execution of a minerals agreement until Secretarial approval following the completion of NEPA compliance, either the tribe or the developer can walk away without penalty.⁽¹⁶⁴⁾ Indirect consequences, including citizens' suits arising from public participation in the NEPA process, can extend the delay. This prolonged uncertainty could kill favorable transactions.

The implications for self-determination underlying the imposition of NEPA, ESA, and cultural resource statutes upon Indian tribes are seldom addressed. When NEPA was enacted, Interior initially took the position that, because the statute did not specifically advert to tribes or Indian lands, it was inapplicable to them. It advanced this position in litigation, and it did not change the position until it had been rejected repeatedly by the courts.⁽¹⁶⁵⁾ The courts' rationale underlying imposition of NEPA duties on BIA lease approval hinged on the express language of the statute: BIA decisions regarding lease approvals were "federal actions" that had the potential to "significantly affect the quality of the human environment."⁽¹⁶⁶⁾ Consequently, so long as BIA officials must approve Indian leases or minerals agreements, NEPA compliance likely will be required.

There may, however, be opportunities for flexible action to minimize the impact of NEPA procedures on tribes' ability to compete for mineral development. A decision by a federal official must be premised on adequate compliance with NEPA before surface-disturbing activities can take place on the ground.⁽¹⁶⁷⁾ Consequently, NEPA may not be an impediment to Secretarial approval of elements of an IMDA agreement that do not authorize surface disturbance that could significantly affect the quality of the human environment and would not irretrievably commit resources.⁽¹⁶⁸⁾

Segmentation of NEPA approvals to achieve such a goal might be accomplished in several ways. Along the lines CERT suggested during the IMDA hearings, BIA might approve the economic terms of the agreement, subject to the proviso that completion of the EIS does not require "no action" or some restructuring of the proposal. However, NEPA analysis contemplates consideration of alternatives to the proposed action, and such an approach might be deemed to foreclose appropriate consideration of alternatives that would affect the economic underpinnings of the deal. But, applying an "alternatives" analysis under NEPA to tribal IMDA agreements raises the question whether the tribe should determine the alternatives it wishes to consider in the NEPA process. Nonetheless, a flexible tribe, developer and agency may be able to implement such an approach.

Alternatively, the tribe and developer could execute a "reliance agreement" along with a proposed lease or minerals agreement; the reliance agreement would contain provisions that reward or penalize both parties not to rescind their approval of the agreement prior to Secretarial approval upon the conclusion of NEPA studies. It might also grant rights of access to the surface of the land for NEPA and due diligence studies. Under such an agreement, each party could agree to some enforceable rewards or penalties intended to provide assurances that both parties will perform. For example, both parties could post funds, certificates of deposit, or other security that would be forfeited to the other party by a party who rescinded its agreement prior to Secretarial approval. Such an agreement would provide an additional measure of security that the agreement would be performed if approved. However, the agreement could not give rise to more than minimal surface disturbance prior to Secretarial approval of the lease or minerals agreement, which could only be approved following full NEPA compliance. Consequently, it might be covered by an environmental assessment analyzing the minimal impacts arising from pre-approval studies.

The Secretary should consider flexible approaches to managing NEPA compliance in a manner that minimizes its intrusion upon tribal self-determination under the IMDA. Expediting NEPA compliance may be an additional device to minimize prejudice caused by delay.

B. The Endangered Species Act

While the IMDA calls for "required" NEPA studies, neither the IMDA nor its implementing regulations mention the Endangered Species Act.⁽¹⁶⁹⁾ And, the IMDA specifies that "the Secretary shall not be required to prepare any study regarding environmental . . . effects [of an IMDA agreement] apart from that which may be required under [NEPA]."⁽¹⁷⁰⁾ This language arguably limits the Secretary's authority to apply the ESA in a manner that undermines an IMDA agreement, particularly with respect to the substantive, project-killing "take" provisions of ESA.

The ESA has been interpreted as applying on its face to Indians and tribes.⁽¹⁷¹⁾ However, the Secretary already has recognized agencies' flexibility under the Endangered Species Act to take tribal self-determination into account. On June 5, 1997, the Secretaries of the Interior and Commerce issued a Secretarial Order entitled "American Indian Tribal Rights, Federal-Tribal Trust Responsibility, and the Endangered Species Act."⁽¹⁷²⁾ The Secretarial Order defines the "government-to-government relationship" between tribes and the United States with respect to Endangered Species Act compliance. Although the Fish and Wildlife Service has reaffirmed the position that the ESA applies to Indian lands,⁽¹⁷³⁾ Secretarial Order No. 3206 suggests an approach that minimizes the ESA's impact on tribal self-determination.

Secretarial Order No. 3206 recognizes tribal governments "as sovereign entities with authority and responsibility for the health and welfare of ecosystems on Indian lands. The Departments recognize that Indian tribes are government sovereigns with inherent powers to make and enforce laws, administer justice, and manage and control their natural resources.⁽¹⁷⁴⁾ The Order requires both Departments to consult with, and seek the participation of, affected tribes to the maximum extent practicable in any action under ESA. The Order provides for the Departments to provide technical assistance to tribes to expand tribal programs that promote healthy ecosystems, including for the development of tribal conservation and management plans to promote the maintenance, restoration, enhancement and health of the eco systems upon which sensitive species (including candidate, proposed, and listed species) depend."⁽¹⁷⁵⁾

The Order gives tribal conservation and management plans considerable weight in ESA administration on tribal lands. The Order requires the Departments to "give deference to tribal conservation and management plans for tribal trust resources that: (a) govern activities on Indian lands, including, for the purposes of this section, tribally-owned fee lands, and (b) address the conservation needs of listed species." The Order defines "Indian lands" to mean lands either held in trust by the United States for the benefit of a tribe or individual Indian or held by a tribe subject to federal restraints on alienation.⁽¹⁷⁶⁾

Secretarial Order No. 3206 sets forth considerations to guide federal agencies in cases involving agency action affecting tribal lands or proposals that could result in an incidental take under the ESA. Section 7 of the ESA prohibits federal agencies from authorizing funding or carrying out any agency action unless the agency determines that the action will not jeopardize the continued existence of any listed species and is not likely to damage designated critical habitat for listed species.⁽¹⁷⁷⁾ The agency must consider whether conservation restrictions are necessary for conservation of the species, whether the measure is the least restrictive alternative available to achieve the conservation purpose, and whether voluntary tribal measures would be adequate. Additionally, the Order both requires that any such "restriction does not discriminate against Indian activities, either as stated or applied" and that the agency determine that "the conservation purpose of the restriction cannot be achieved by reasonable regulation of non-Indian activities." The suggestion that non-Indian activities should be curtailed before tribal activity appears to recognize the tension between tribal self-determination and ESA enforcement. Addressing an oft-litigated issue,⁽¹⁷⁸⁾ the Secretarial Order requires the Departments to "take into consideration the impacts of their actions and policies. . .on Indian use of listed species for cultural and religious purposes. The Department shall avoid or minimize, to the extent practicable, adverse affects upon the non-commercial use of listed sacred plants and animals in medicinal treatments and in the expression of cultural and religious beliefs by Indian tribes." Secretarial Order, Principle 4.

An appendix to Secretarial Order No. 3206 provides guidelines to federal agencies for implementing the principles contained in the Order. The guidelines require the Departments to consult with affected tribes when considering the designation of critical habitat in an area that may impact tribal trust resources, tribally owned fee lands, or the exercise of tribal rights. "Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species."⁽¹⁷⁹⁾ The guidelines further require the Departments to "evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands."⁽¹⁸⁰⁾ This reference to "other" lands appears to contemplate non-Indian lands. Consequently, these provisions may afford tribes and natural resource developers with opportunities to carefully tailor development activities in areas of potential critical habitat that might otherwise be off limits under the ESA.

The guidelines also address consultation under Section 7 of ESA. If developed, tribal conservation and management plans for trust resources and tribally-owned fee lands "shall serve as the basis for developing any reasonable and prudent alternatives, to the extent practicable."⁽¹⁸¹⁾ Developers should be aware of the existence and content of any potentially applicable tribal conservation and management plans and should take them into account in planning development activities and structuring ESA compliance. Two other provisions of the guidelines deserve consideration. First, the Order recognizes that the habitat conservation planning process ("HCP")⁽¹⁸²⁾ can apply to Indian lands, but the Order requires agencies to "plan around" trust lands in developing HCP's to the degree feasible: "The Services shall advocate for HCP provisions that eliminate or minimize the diminishment of tribal trust resources." Second, recovery plans are expressly required to be structured in a manner that "minimizes the social, cultural and economic impacts on tribal community, consistent with the timely recovery of listed species."⁽¹⁸³⁾ The agencies must be "cognizant of tribal desires to obtain population levels and conditions that are sufficient to support the meaningful exercise of reserved rights and the protection of tribal management or development prerogatives for Indian resources." This language appears to require consideration of such goals and prerogatives, but would not make them controlling. Of course, recognition of a tribal interests in attaining species population levels "sufficient to support the meaningful exercise of reserved rights" may entail complex, controversial determinations.

Secretarial Order No. 3206 clearly elevates the role of tribes in the ESA process. Its provisions suggesting the Departments should minimize impacts on tribal resources arising from ESA conservation measures could allow tribes and developers to work cooperatively with the agencies to allow development that might otherwise be unavailable. However, its provisions for deference to tribal management plans, goals, policies could elevate tribal interests above others in the ESA process.

IV. RE-EXAMINING THE PREMISE OF DEPENDENCY

We have seen that the doctrine of discovery, the Non-Intercourse Act, and IMLA all are premised upon the notion that tribes and individual Indians lack the competence, or at least the administrative skills and resources, to enter into such transaction on their own. By contrast, a central premise underlying the IMDA is that tribes can, in fact, secure better agreements if they determine the terms of the transaction, rather than relying upon BIA. In practice, tribes and, to a lesser degree, individual Indian minerals owners have negotiated and set the terms of mineral transactions in the past fifteen years. The cases where BIA insists upon, or even recommends, more favorable terms are rare. Instead, the function of BIA Realty Offices across the country has been transformed from minerals manager to support staff, often assisting tribal minerals departments in ensuring that leases, minerals agreements, or right-of-way packages contain the components and are supported by the studies required by federal law. Although these functions remain beneficial to the degree the services BIA performs add value to tribal transactions, rather than erecting hurdles to be cleared to validate transactions, the BIA's role is far narrower than it was.

Assuming tribes are calling the tune on the economic terms of minerals agreements, one can analyze the remaining functions performed by BIA. In the leasing and minerals agreement context, those duties include the ascertainment of compliance with leasing and permitting regulations requiring the qualifications of the lessee to hold leases or contracts, the posting of bond, and the proper description of properties.⁽¹⁸⁴⁾ The Secretary also performs these functions under allotted lands leases;⁽¹⁸⁵⁾ with respect to IMDA agreements, BIA also prepares an economic assessment of the proposed minerals agreement that may provide valuable information to a tribe contemplating a minerals agreement.⁽¹⁸⁶⁾ During operations, BIA reviews and approves unitization agreements and certain assignments.⁽¹⁸⁷⁾ The Secretary, through the Minerals Management Service ("MMS"), receives and audits royalty remittances,⁽¹⁸⁸⁾ although difficulties with the Secretary's management of allotted lands royalty accounting have received much press. Through the Bureau of Land Management ("BLM"), the Secretary supervises operations on the leased lands.⁽¹⁸⁹⁾

Clearly, these are valuable services, and tribes and individual mineral owners benefit from not having to supply the services themselves, assuming these services are performed in a timely, efficient, and effective manner. However, there is ample evidence supporting that BIA's handling of these duties does not always fit that description. The current controversy regarding accounting for trust funds raises the question whether allottees are better served by the United States' performing these services without charge than they would have been had the allottees handled the accountings at their own expense. The fact that there is no easy answer to that question does not mean it is not a pertinent inquiry.

This question is now timely. Congress has determined that tribes may be competent to administer services for which BIA has administrative responsibility.⁽¹⁹⁰⁾ Perhaps more significantly, Congress also has determined under several of the federal environmental law, that tribes may have the competence and administrative capabilities to determine the appropriate quality of reservation waters and air.⁽¹⁹¹⁾ The environmental regulatory responsibility delegated to tribes under the Clean Air Act and Clean Water Act require competence, administrative expertise, and judgement of the highest order. The decisions tribes make under these delegations will affect the quality of reservation environments, the health and welfare of reservation populations, and affect the investments and livelihoods of businesses and workers on reservations. EPA has delegated, or proposes to delegate, regulatory power not only over tribal members, but also over non-members living and doing business within, or in certain circumstances close to, reservations.

Under established trust and guardianship law principles, enhanced tribal capabilities could lead to a diminished trust role. To the degree the "trust" relationship is properly characterized as that of guardian and ward, common law principles contemplate that the guardianship applies "only when and for so long as the ward is lacking in legal capacity."⁽¹⁹²⁾ As noted above, the Claims Court has relied on the Restatement (Second) of Trusts and early Supreme Court cases to observe that the general relationship between the United States and tribes regarding trust property is that of guardian-ward, rather than of trustee-beneficiary.⁽¹⁹³⁾ From this premise and principles of guardianship law, Judge Tidwell has argued that: "a guardian-ward relationship implies that, at some point, the ward will begin to take responsibility for its own affairs."⁽¹⁹⁴⁾ The guardian-ward analogy does not fit every aspect of federal-tribal relations: for example, the ward, not the guardian, holds title to the property subject to the guardianship.⁽¹⁹⁵⁾ Nonetheless, Chief Justice Marshall's opinions, and the trust doctrine that arose from them, do not appear to be premised on the notion that Indians and tribes are forever incapable of attaining the acumen necessary to manage their lands and resources. Consequently, to the degree tribal self-determination reflects tribal futures, the vision of the trust relationship as a gradually disappearing one seems appropriate.

If the trust relationship is that of trustee and beneficiary, rather than guardian and ward, tribal self-determination still could effect a change. Where a trust is created for a beneficiary and the purpose of the trust is to deprive him of management of the property on account of a legal, physical, or mental disability, and that disability is subsequently removed, the beneficiary can compel termination of the trust.⁽¹⁹⁶⁾ The same may be true of a trust created during the minority of the beneficiary or during insolvency: when the minor comes of age or the beneficiary becomes solvent, "the trust will be terminated upon the expiration of the period or the happening of the event."⁽¹⁹⁷⁾ These rules would apply if the incapacity of disability were the "only" reason for establishing the trust. It is debatable whether the federal trust imposed on Indian lands solely due to tribes' supposed inability to manage their lands. The United States arguably had other reasons for imposing the trust, including the desire of the United States to control relations with tribes or the related goals of keeping the peace and providing orderly and efficient settlement of lands. Of course, any transformation of the federal trust relationship would require addressing those elements that have been enacted into statutes that control the disposition of tribal lands.

These trust concepts and changing visions of the tribe require re-examination of trust doctrine. It is, at the very least, incongruous for a tribe to seek or obtain regulatory primacy, yet still claim the need for a guardian's protection from improvident transactions. It seems indisputable that the skill and knowledge sets and administrative machinery required to manage leasing and mineral contracting are of no higher an order than those required to administer the provisions of the Clean Air Act and Clean Water Act. Congress' provision for such delegations impliedly rejects the central premise underlying the trust doctrine, that tribes cannot be trusted to manage their affairs.⁽¹⁹⁸⁾ Moreover, some tribes are insisting that resource developers recognize the tribal government and tribal courts as having general jurisdiction over them and the same powers as state governments.⁽¹⁹⁹⁾ If these trends continue, the premise of a need for federal guardianship inherent in Chief Justice Marshall's description of tribes as "domestic dependent nations" increasingly will be false.

Recognition of this incongruity is the starting point of an inquiry, not the answer. If policy-makers sought to reconcile trust doctrines with self-determination, a long and painstaking process would be required. Under the Indian Self-Determination Act, Congress did not mandate a blanket transfer of function from BIA to tribes; rather, it authorized BIA, on a case-by-case basis, to contract with tribes to perform specific BIA functions under BIA's overall supervision. Similarly, just as it does for states when states implement environmental regulatory programs pursuant to EPA delegations, EPA delegates to tribe under existing programs only when the specific tribe has demonstrated its ability to handle statutory duties, and EPA stands as a backstop to ensure that the state's program and actions continue to satisfy statutory standards. Although perhaps few tribes and individual mineral owners now stand ready to assume full responsibility for their lands and minerals, that number may be increasing rapidly. Any redefinition of federal trust responsibilities would have to be phased in, perhaps on a tribe-by-tribe basis, with BIA supervision during a transitional period. Clearly, it would be folly to do away with the trust responsibility in a stroke.

Any modification of so central a precept as the trust doctrine must be carefully thought through and finely tuned. Obviously, any suggestion that the trust responsibility should be removed will raise the well-founded spectre of termination, particularly in light of recently proposed legislation and some decisions of the Supreme Court. Careful analysis would be required of the linkage between federal trust responsibilities and restrictions on alienation and immunity from state laws and taxes for trust or restricted lands. The experience of Alaskan native corporations underscores the dramatic impacts that may flow from lifting of restraints on alienation and the modern diminishment of tribal lands.⁽²⁰⁰⁾ These considerations may affect both how leasing and contracting should be modified to comport better with self-determination and whether it should be changed. However, the vision of tribes as requiring federal protection is changing; that change ultimately should be reflected in a changed trust relationship between the United States and tribes.

CONCLUSION

Trust concepts affect resource development on Indian lands. Self-determination principles can inject flexibility and predictability into the minerals contracting process. However, the fundamental trust concept, that tribes cannot manage their lands and resources, is being eclipsed in the self-determination era by tribes' efforts to control resource development and exert governmental primacy. Tensions between the two paradigms will cause re-examination of the trust doctrine. In the meantime, resource developers, tribes, and the Department of the Interior should work cooperatively towards sound natural resource management in Indian country.

ENDNOTES

1. See generally, Richard B. Collins, "Origins and Dimensions of the Trust Relationship Between the Indian Nations and United States," ABA Section of Environment, Energy and Resources Law, Annual Conference on Native American Resources (Paper No. 7, February 22, 1991); Reid Chambers, "Judicial Enforcement of the Federal Trust Responsibility to Indians," 27 Stanf. L. Rev. 1213 (1975).

2. See Nell Jessup Newton, "Indian Claims in the Courts of the Conqueror," 41 Am. U.L.Rev. 753 (1992), Steven Paul McSloy, "Revisiting the 'Courts of the Conqueror': American Indian Claims Against the United States," 44 American Univ. L. Rev., 537 (1994).

3. See generally, Michael E. Webster, "Mineral Development on Indian Lands: Understanding the Process and Avoiding the Pitfalls," 39 Rocky Mt. Min. L. Inst., 2-1 (1993); B. Kevin Gover and Catherine Baker Stetson, "Development of Natural Resources on Indian Lands," 34 Rocky Mt. Min. L. Inst., 3-1 (1988); Judith V. Royster, "Equivocal Obligations: The Federal-Tribal Trust Relationship and Conflicts of Interest in the Development of Mineral Resources," 71 N. Dak. L. Rev. 326 (1995).

4. See Paul E. Frye, "A Travesty of a Mockery of a Sham: The Federal Trust Duty and Indian Self-Determination," Rocky Mt. Min. L. Inst., Special Institute on Nat. Res. Devel. and Environmental Reg. in Indian Country, Paper No. 2-B at 2-B-7-8 (1999).

5. See Jicarilla Apache Tribe v. Supron Energy Corp., 782 F.2d 855 (10th Cir. 1986) (en banc), adopting dissenting opinion from 728 F.2d 1555, 10th Cir. (1984), 793 F.2d 1171, cert. denied, 479 U.S. 970 (1986) ("Jicarilla v. Supron").

6. See, e.g., Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1075 (9th Cir. 1983) cert. denied, 464 U.S. 1017 (1983) (Secretary's power to cancel business lease forecloses unilateral tribal cancellation).

7. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15 (1831).

8. See Paul E. Frye, "A Travesty of a Mockery of a Sham," at 2B-27-29.

9. See Pub. L. 638, June 4, 1975, 25 U.S.C. §§ 450-450n (1982). Congress also has enacted self-determination policies in the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-63 (1994); the Indian Tribal Government Tax Status Act of 1982, 26 U.S.C. § 2608 (1994); and the Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-21 (1994).

10. In 1975, Congress found that "the prolonged federal domination of Indian service programs has served to retard rather than enhance the progress of Indian peoples and their communities . . .". 25 U.S.C. § 450(a)(1) (1982).

11. See Navajo Nation Standard Terms and Conditions for Rights-of-Way, 1999, requiring the right-of-way applicant to consent to the jurisdiction of Navajo Nation executive, legislative and judicial power and to covenant not to contest jurisdiction.

12. See William C. Scott, "The Clean Air Act: Treatment as State Rule", Inst. on Nat. Res. Devel. and Environmental Reg. in Indian Country, May 20, 1999, Paper No. 12.

13. See 25 U.S.C. § 450(f) (1982).

14. See, e.g., American Indian Report, (Nov. 1998) "Wealthy Tribe Denied Trust Land Request,"(BIA refused to place land acquired by Shakopee Mdewakanton Tribe into trust status because the tribe already has achieved "extraordinary" economic rehabilitation from gaming and other activities).

15. See infra, Part I.

16. See infra, Part II A.

17. See infra, Part II B.

18. See infra, Part III.

19. See infra, Part IV; on tribes' assertions of jurisdictional primacy, see generally, Lynn H. Slade, "Puzzling Powers: Overlapping Jurisdictions of Indian Tribes and the Federal, State, and Local Governments in Development of Natural Resources in Indian Country," 42 Rocky Mtn. Min. L. Inst. 11-1 (1996).

20. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).

21. 21 U.S. 8 Wheat, 543, 573 (1823).

22. Id at 586.

23. Id at 588.

24. Id at 589.

25. Id at 590.

26. Id at 592; see G. Edward White, The Marshall Court and Cultural Change, 1815-1835 at 710 (1991) ("The message of Johnson v. McIntosh, then, was that the natural rights of human beings to dispose of property that they held by virtue of possession did not apply to Indians in America."); see also Fletcher v. Peck, 10 U.S. (6th Cranch) 87 (1810) (Indian title not necessarily inconsistent with fee ownership of state).

27. Id at 589. Marshall ignored that not all American Indians had been conquered by European powers or the United States. See David H. Getches, "Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law," 84 Calif. L. Rev. 1573, 1578 n. 19 (1996).

28. Indian Trade and Intercourse Act of March 1, 1793, Ch. 19, 1 Stat. 329; see generally, Rennard Strickland ed., Felix S. Cohen's Handbook of Federal Indian Law, 1982 ed. 109-118 (1982) ("Cohen 1982"); Francis Paul Prucha, The Great Father, Vol. I at 91-98 (1984).

29. See Act of June 30, 1834, 4 Stat. 730, 25 U.S.C. § 177 (1982).

30. 25 U.S.C. § 177.

31. Act of March 3, 1871, 16 Stat. 544, 566, 25 U.S.C. § 71 (1994); See Prucha, The Great Father, Vol. I at 527-33.

32. See infra, Part II; after 1871, tribal land holdings could be affected either by statute or executive order, and executive order reservations are subject to leasing or contracting under the statutes and regulations for treaty lands or statutory trust lands. See Op. of Atty. Gen., May 27, 1924 (Executive Order Reservations - Leasing Act).

33. See, e.g., Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1974); see generally, Cohen 1982 at 7-9; Sangre de Cristo Dev. Co. v United States, 932 F.2d 891, 894 (10th Cir. 1991) (because Secretary never complied with NEPA in lease issuance, developer's lease interest never vested); see also Youngbull v. United States, 1990 U.S. Cl. Ct. Lexis 3 at *19-*23, 17 I.L.R. 4001, 4004 (Cl. Ct. 1990) (Secretary's responsibility "to protect title by avoiding the transfer of title to those without valid legal claims.").

34. See Sangre de Cristo Dev. Co. v United States, 932 F.2d at 895; see also Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1332 (10th Cir. 1982) (statutory requirements regarding publication of notice).

35. See National Environmental Policy Act, 42 U.S.C. § 4321 (1982).

36. See infra, Part III.

37. See Manygoats v. Kleppe, 558 F.2d 556 (10th Cir. 1977) (although it had not consented to suit, Navajo Nation not indispensable party to NEPA action to cancel uranium lease).

38. 30 U.S. (5 Pet.) 1, 16 (1831).

39. Id. at 17; see Part I A, supra; In Cherokee Nation, Marshall referred again to the "habits and usages of the Indians," observing, at the time the Constitution was framed, "the idea of appealing to an American court of justice for an assertion of right or an address of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk or to the government." Id. at 18.

40. Choctaw Nation v. United States, 119 U.S. 1, 28 (1886).

41. Nell Jessup Newton, "Federal Power Over Indians: Its Sources, Scope and Limitations," 132 U. Pa. L Rev. 185, 218 (1984).

42. See Prucha, The Great Father, Vol. I at 293-318; on the allotment era, see generally Prucha, The Great Father, Vol. I, 179-318.

43. See Prucha, The Great Father, Vol. II at 659-686.

44. Act of Feb. 8, 1887, Ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. § 331-334, et. seq. (1982).

45. See Prucha, The Great Father, Vol. II at 671-673.