On August 20, 2014, Interior Secretary Sally Jewell issued Secretarial Order No. 3335 (attached) which reaffirms the Interior Department’s federal trust responsibility to federally-recognized Indian tribes and individual Indian beneficiaries. Secretary Jewell issued the Order in response to recommendations made by the Secretarial Commission on Indian Trust Administration and Reform.
The Order reflects the work of the Commission which spent considerable effort to define the scope and nature of the trust responsibility. The Order says that, “The trust responsibility consists of the highest moral obligations that the United States must meet to ensure the protection of tribal and individual Indian lands, assets, resources, and treaty and similarly recognized rights.” The Order also emphasizes the Department’s liability to Indian tribes for certain breaches of trust, stating that the Supreme Court has “concluded that certain obligations are so fundamental to the role of a trustee that the United States must be held accountable for failing to conduct itself in a manner that meets the standard of a common law trustee.”
The Order recites the underpinnings of the trust relationship and its manifestation through acts of Congress, Presidential actions, court decisions, and Departmental policy. The order also recognizes the Department’s shortcoming with respect to the mismanagement of tribal and individual Indian trust assets. The Order says that the Department has attempted “to rebuild the trust relationship” with tribes by settling numerous breach of trust lawsuits, including the settlement of the Cobell lawsuit.
The Order sets forth seven “guiding principles” which the Secretary has ordered the entire Department to honor:
1. Respect tribal sovereignty and self-determination, which includes the right of Indian tribes to make important decisions about their own best interests.
2. Ensure to the maximum extent possible that trust and restricted fee lands, trust resources, and treaty and similarly recognized rights are protected.
3. Be responsive and informative in all communications and interactions with Indian tribes and individual Indian beneficiaries.
4. Work in partnership with Indian tribes on mutually beneficial projects.
5. Work with Indian tribes and individual Indian beneficiaries to avoid or resolve conflicts to the maximum extent possible in a manner that accommodates and protects trust and restricted fee lands, trust resources, and treaty and similarly recognized rights.
6. Work collaboratively and in a timely fashion with Indian tribes and individual Indian beneficiaries when evaluating requests to take affirmative action to protect trust and restricted fee lands, trust resources, and treaty and similarly recognized rights.
7. When circumstances warrant, seek advice from the Office of the Solicitor to ensure that decisions impacting Indian tribes and/or individual Indian beneficiaries are consistent with the trust responsibility.
Although the principles reference the “rights” of tribes, we note that the Order itself states that it is “for guidance purposes only” and “is not intended to, and does not, create any right to administrative or judicial review or any legal right or benefit, substantive or procedural, enforceable by a party against the United States, its agencies, or instrumentalities, its officers or employees, or any other person.”
The Order is significant because it is an unprecedented attempt by a federal Department to articulate the importance of the trust responsibility to Indian tribes and individuals and prescribe a set of policies designed to advance, instead of hinder, its own obligations to fulfill that responsibility.
Secretary Jewell also issued an eleven page paper (attached) reporting on steps the Interior Department has taken or will take in response to the Commission’s report. The paper describes its actions to:
• Create an interagency service center to support Indian oil and gas development.
• Create and implement a strategic plan to improve customer service, as well as ensuring proper contact information is included on the Office of the Special Trustee website and individual beneficiary statements.
• Use market studies, information technology, and develop an automated Mass Appraisal Valuation System to speed up land appraisals.
• Begin examining probate reform options.
• Publish a proposed rule to take land into trust for Alaska Native tribes.
We note that the Order supplements but does not supplant Secretary Ken Salazar’s 2011 Secretarial Order No. 3317 which sets for the Department’s policy for consulting with Indian Tribes. For further information on Secretarial Order No. 3317 see our General Memorandum 11-152 of December 16, 2011.
Please let us know if you would like to have additional information regarding Secretarial Order No. 3335.
